019-NLR-NLR-V-55-A.-M.-JOHARDEEN-Appellant-and-T.-J.-AHMATH-S.-I.-Police-Respondent.pdf
Johardeen v. Ahmath
65
r1952Present: Swan J.
M. JOHARDEEN, Appellant, and T. J. AHMATH (S. I. Police),RespondentS. C. 631—31. C. Matale, 1,931
Joinder of Charges—“ In the same transaction ”—Criminal Procedure Code, s. 184.
For joinder of charges in respect of offences committed in the same trans-action, it a not necessary that the charges must expressly state that the offenceswere committed in the course of the same transaction. If the sameness of thetransaction is manifest or implicit in the charges themselves there is nomisj oinder. 1 2 3
1 (1932) 34 2ST. L. R. 33, at 36.4 2 B. & Aid. 339 do 479, 106 E. R. 391.
2 (1827) 9 Dow. Ry. K. B. 183.5 6 B. <b C. 240, 108 E. R. 441.
34 Dow. & Ry. M. G. 293.6 (1866) L. R. 1 Q. B. 433.
7 (1882) 1 E. Z. Tj. R. 129, 16 Emp. Dig. 364 (note).
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SWAJST J.—Johardeen v. Ahmath
A PPEAL from a judgment of the Magistrate’s Court, Matale.
H. V. Perera, Q.C., ■with E. R. S. R. Coomaraswamy, for the 2ndaccused appellant.
Boyd Jayasuriya, Crown Counsel, for the Attorney-General.
Cur adv. wilt.
November 4, 1952. Swan J.—
In this case the appellant and one S. Ponnambalam were charged asfollows :—
that they did on or about 1st May, 1950, at Matale within thejurisdiction of this Court dishonestly misappropriate a sum ofRs. 117-50 the property of the Matale Co-operative Transport Society,Ltd. and thereby committed an offence punishable under Section 386of the Ceylon Penal Code
In the alternative
at the time and place aforesaid the 2nd accused being employed as aCashier-Clerk did wilfully and with intent to defraud falsify an accountwhich belongs to his employer to wit the Honorary Secretary of theMatale Co-operative Transport Society, Ltd. by making the followingentry :—-
“ a sum of Rs. 117 • 50 was paid to Messrs. Costa’s Motor Works, Matale,on 1.5.1950 ” whereas in truth and in fact no such sum was paid toMessrs. Costa’s Motor Works and thereby committed an ofFencepunishable under Section 467 of the Ceylon Penal Code.
Mr. Perera maintains that there is a misjoinder of charges and that theconvictions must be quashed. Section 184 of the Criminal ProcedureCode permits a joinder of accused in respect of charges committed in thesame transaction. There can be no question that violation of this rulewould make the trial an illegality. It was so held in the case of Subrama-nia Iyer v. King-Emperor 1 where the Privy Council was dealing with theconstruction of Section 239 (d) of the Indian Criminal Procedure Codewhich corresponds to Section 184 of our Code. This case was referredto in Choukhani v. King-Emperor 2 and Lord Wright who delivered thejudgment of the Privy Council said :—
“ It has been taken as settled law- on all sides throughout these pro-ceedings that the infringement of Section 239 (d) would, if made out,constitute an illegality, as distinguished from an irregularity, so that theconviction would require to be quashed under the rule stated in Subra-mania v. King-Emperor 1 as contrasted with the result of an irregular-ity as to v'hieh Abdul Rahaman v. King-Emperor 3 is an authority. 1
1 {1901) L. It. 28 Ind. Appeals 251.2 {1398) L. J. R. { P. C.) 38.
3 (1926) L. R. 53 Ind. Appeals 96.
Vadivel Chetty v. Abdu
67
Their Lccdships will assume that this is so without thinking it herene essary to discuss the precise scope of what was decided inSubramania’s case, because in their understanding of Section 239(d) that question does not arise. ”
Mr. Perera contends that the charges must clearly state that the offenceswere committed in the course of the same transaction. He even contendedthat the omission of the words “ in the course of the same transaction ”were sufficient to indicate that they were not so committed. In thisconnection he drew my attention to the dictum in Choukhani v. King-Emperor 2 that the correctness of the joinder, which depends on thesameness of the transaction, is to be determined by looking at the accu-sation and not by looking at the result of the trial. But as.learned CrownCounsel submitted, there is no special magic in the use of the words “ in thecourse of the same transaction ”. If the sameness of the transaction ismanifest or implicit in the charges themselves there is no misjoinder. Inthis case the charges themselves reveal that the offences were committedin the course of the same transaction.
I shall now deal with the appeal of the 2nd accused on the merits.
[His Lordship then considered the merits and reached the conclusionthat the conviction of the appellant should be set aside.]
Appeal allowed.