Adihetty v. Eramudugolla.
1936 Present: Abrahams CJ., Dalton S.P.J., and Akbar J.
ADIHETTY v. ERAMUDUGOLLA.
787—P. C. Matale, 14,691.
Rubber Control—Return supplied to Rubber Investigating Officer—False entryregarding extent of estate—Adoption of return by Rubber Controller—Charge of using false entry for creating a right to the issue of coupons—Rubber Control Ordinance, No. 6 of 1934, s. 51 (1) (e).
The accused, who made a return to the Rubber Investigating Officerbefore the Rubber Control Ordinance, No. 6 of 1934, came into operation,was charged under section 51 (e) of the Ordinance with having knowinglymade use of an incorrect entry for the purpose of creating a right to theissue of coupons.
The false entry in the return was to the effect that he was the pro-prietor of an estate of 18 acres with 2,670 rubber trees whereas, in fact,the extent of the estate was 6 acres with 575 trees. The Rubber Controlleradopted the return sent by the accused as a return furnished undersection 13 (1) of the Ordinance and isstped coupons to him.
Held, per Abrahams C.J. and Akbar J. (Dalton S.P.J. dissenting),that the accused in accepting the coupons sent by the Rubber Controllercould not be said to have made use of a false entry in a return to createa right to the use of coupons within the meaning of section 51 (e) ofthe Ordinance.
Per Dalton S.P.J.—Where a person applies for or receives couponson the basis of an incorrect return by him with knowledge that thereturn is incorrect, he offends against the section.
Adihetty v. Wijeysekere1 disapproved.
Q ASE referred by Koch and Poyser JJ. to a Bench of three Judges.
The accused was charged in the Police Court of Matale with havingknowingly made use of an incorrect entry in a return furnished to theRubber Investigating Officer for the purpose of creating a right to theissue of coupons, namely, that he was the proprietor of Ihalawalauwawattein extent 1 acre exclusively planted and 17 acres interplanted with2,670 rubber trees before the year .1927, whereas he was entitled toonly about 6 acres interplanted with 575 rubber trees, an offence punish-able under section 51 (e) of the Rubber Control Ordinance, No. 6 of 1934.
The Police Magistrate acquitted the accused, following the decision ofPoyser J. in Adihetty v. Wijeyesekere
J. E. M. Obeyesekere, Acting Deputy S.-G. (with him Pulle, C.C.), forthe complainant, appellant.—The Magistrate has found as a. fact thatIhalawalauwawatte in respect of which the respondent made a returnto the Rubber Investigating Officer is only 6 acres in extent, whereashe represented that it was 18 acres in extent.- In consequence the re-spondent has received Coupons for 2,086 lb. in excess of the amountto which he was entitled. The Magistrate has also found thatthe respondent’s conduct was dishonest. Counsel next referred tothe scheme of Ordinance No. 6 of 1934, and submitted that the pro-secution had to prove (a) that there was an incorrect entry in a return, 1
1 37 N. L. R. 189.
Adihetly v. Eramudugolla.
furnished to the Rubber Investigating Officer, (b) that the respondentknowingly used that entry, and (c) that he did so for the purposeof creating right to the issue of any coupon. Counsel argued that (a)was established, and that the letters P 2 and P 3 constituted an userwithin the meaning of the section. He submitted that Poyser J. inAdihetty v. Wijeysekere (sicpra) took too narrow a view of the section. Aperson who receives a coupon for a quantity in excess of that to whichhe is entitled is within the section. It is difficult to believe that theLegislature intended to penalize a person who, not owning any land inrubber, obtains coupons for 1 acre, whereas it did not intend to penalizea person who, owning 1 acre of rubber land, obtains coupons for 100 acres.Soertsz J. in Adihetty v. Silva1 did not consider the question butdistinguished the case he considered on the facts.
H. V. Perera (with him B. H. Aluwihare), for accused, respondent.—The prosecution must prove that the entry in the return is incorrect infact; it must also prove an user of the entry subsequent to the coming;into operation of the Ordinance for the purpose indicated—the purposebeing to create a right to the issue of coupons. Before one can say thatan act of the accused is an act of user, it is necessary to presume that theaccused did not think that he had already effectively created that rightby making a false entry. We reach a certain point when an accused—having made a false entry—has done everything he need do for thepurpose of giving him a certain right. It cannot be said that an actdone thereafter was intended by the accused to create a right. Theletter P 3 comes too late. The prosecution regards receipt of couponsas user. The user contemplated by the Ordinance is an user after thecommencement of the Ordinance. When the Ordinance commences tooperate, the pretended or false right had been created. Thereafterwhatever the accused does cannot be regarded as having been done forthe purpose of creating a right which was already in existence.
The letter P 3 is a request. He merely asks that the coupons for the18 acres mentioned in his return be divided. It is a false statement onthe footing of a certain claim. It is not made for the purpose of sup-porting a claim or creating a claim. P 3 is written on thq basis that theRubber Investigating Department had accepted the first return sent byaccused. Once he has supplied the data and it is accepted then a subse-quent request made by him to split up the issue of coupons cannot beregarded as something done for the purpose of creating & right to theissue of coupons.
When did use begin? Use is a positive act over and above the meresending of the return. The use would end when the right has beencreated. The section clearly contemplates a positive act of user. Fulluse of incorrect entry had already been made by-accused. The incorrectdata had been previously sent and the Controller had acted on it.
Accused gave certain incorrect data. Rubber Controller accepted-it. Once it is accepted, everything is automatic ; the Rubber Controller-on the footing of those figures will make certain calculations—standardproduction, exportable maximum, &c. Once thte accused has suppliedthose data, he has done all the mischief.
• -1 15 C. It. Rec. 53.
ABRAHAMS CJ.—Adihetty v. Eramudugolla.
The penal provisions of the Ordinance must be interpreted in favourof the liberty of the subject: Maxwell’s Interpretation of Statutes, 6th ed.,p. 464.
Cur. adv. vult.
August 4, 1936. Abrahams C.J.—
This case has been referred to us owing to a difference of opinionbetween Poyser J. and Koch J. as to whether the respondent ought tohave been convicted under section 51 (1) (e) of the Rubber Control'Ordinance, No. 6 of 1934.
The Magistrate who tried the respondent acquitted him on the groundthat notwithstanding the proof of the allegations of fact he was entitledto some coupons, and that the provision of law under which he wascharged contemplated the use of an incorrect entry for the purpose ofcreating a right which did not exist, i.e., when the person concerned isentitled to no coupons at all. An appeal against this acquittal was lodged,and Poyser J. for the reasons stated by him in the previous case ofAdihetty v. Wijeysekere was of the opinion that the acquittal was right ;Koch J. on the other hand was of the opinion that as the respondentknowingly used an incorrect entry in his return to obtain coupons for aflarger quantity of rubber than he was justly entitled to receive, he soughtto create a r^ght to the issue of excess coupons which brought his actwithin the words used in the enactment, namely : “ to create a right tothe issue of any coupon. ”
I agree with Koch J. that a right to the issue of any coupon means asmuch the right to the issue of any coupon beyond that to which there is agood title, as the right to the issue of any coupon where there is no titleat all. I think the other view would permit the commission of fraudulentacts, at least, as serious as those which it condemns ; for instance, a manwho had a few trees and fraudulently stated that he had a great manycould escape, whereas the man who had no trees at all and who statedthat he had just a few would be punished. But, as I view this case, theappeal cannot be decided on that ground but on another which apparentlyhas not been previously advanced^ since it appears to be taken for grantedthat the accused persons in cases previously decided, as in this case, diduse the incorrect entry to create a right, the question for decision beingwhat right had there been an endeavour to create.
Counsel for the respondent has now invited us to look at the case froma different view point. He submits that, assuming the respondent didat any time use the incorrect entry, there is no evidence to show that heused it to create or purport to create the issue to him of any coupon. Forthe appellant it is submitted that the respondent used the incorrect entrywhen he wrote the.letter P 2, again when he wrote the letter P 3, andfinally when he was sent.the excess coupons.
Now to use a thing means to employ that thing for a particular purpose,and if it is conceded that the letters or either of them imported by referencean Employment of the incorrect entry made in P 1, it has to be shownthat the purpose of employment was to create a fight to the excessnumber of coupons the respondent received. In my opinion no suchpurpose has been shown. It appears rather to me that the purpose for
1 31 N. L. B. 189..
DALTON S.P.J.—Adihetty v. EramuiugoXla.
which P 2 was written was merely to correct an error in his name andaddress appearing in some document not in evidence. What that errorwas has not been explained but it is irrelevant. As to P 3, the purposefor which it was written was to effect a distribution between himself andhis brother of the coupons which the respondent expected or hoped toreceive as a result of the return he had made, and I am unable to see thatanything contained or implied in the letter created or purported to createa right to the issue of any coupon. To take a simple analogy : supposea tradesman to have sent to a customer an account claiming payment formore goods than he had supplied. Before he receives a settlement hewrites again to the customer requesting him to forward part of the stundue to another tradesman for whom he had been agent for part of thegoods supplied, and then to remit the balance to himself. It could notin reason be said that he had made use of a false entry in an accountin order to create a right to the payment of the amount set out in theaccount.
Finally, Jt seems to me that the receipt of the coupons does not proveithe respondent guilty of the offence charged. In accepting them therespondent could not be said to use a false entry much less to create &>right to the coupons. The coupons were issued to him because the officerissuing them believed that the respondent had a right to receive them byvirtue of the details in his return.
In my opinion the charge against the respondent cannot be sustained.He might have been properly charged under some other law, but that isnot to the purpose. I would dismiss the appeal.
This appeal originally came before Koch J. He referred it to a Benchof two Judges for the reason he sets out in his judgment. It then cameibefore Poyser and Koch JJ. They were not able to agree, and theappeal has now come before a Bench of three Judges.
The appeal is by the complainant in the Police Court, described as aclerk in the Rubber Controller’s Department, against the acquittal ofthe accused. The latter was charged in the following terms :—
“ that you did on or about the 27th day of April at Matale withinthe division aforesaid knowingly make use of an incorrect entry inthe return furnished to the Rubber Investigating Officer for the purposeof creating a right to the issue of coupons, to wit, that you are theproprietor of Ihalawalauwawatte in extent 1 acre exclusively plantedand 17 acres interplanted with 2,670 rubber trees before the year1927* whereas you are entitled to only about 6^acres interplanted with575 rubber trees, and that you have thereby committed an offencepunishable under section 51 (1) (e) of Ordinance Np. 6 of 1934 (RubberControl Ordinance) ”.
The facts found by the Magistrate to be proved are that the accusedstated in a return furnished to the Rubber Investigating Officer that hisland Ihalawalauwawatte was 18 acres in extent and contained 2,670trees. On the basis of this return his land was' assessed at 4,018 lb. ofrubber, standard production, and in pursuance of this assessment he
DALTON SJJ.—Adihetty v. Eramudugolla.
has received coupons for 2,722 lb. On April 27, 1935, he received couponsfor 552 lb., a portion of the total of 2,722 lb. Investigation showedthat the land in question was 6 acres in extent and contained only 575rubber trees. On this acreage and on this number of trees the accusedwuuld only be entitled to coupons for 805 lb., standard production, and[on that standard he should have received coupons for 647 lb. only. Hehas therefore received coupons for 2,086 lb. in excess of the amount toA'hich he was entitled. The coupons are, under the Ordinance, valuablesecurities. The Magistrate finds that the accused knowingly made useof the false return psade by him, and that the fraud committed by himhas been established beyond all doubt. Following, however, the decisionof Poyser J. in Adihetty v. Wijeysekere1 in view of the fact that the accusedwas entitled to some coupons, he held that he had not committed anoffence in contravention of section 51 (1) (c) of Ordinance No. 6 of 1934.
Section 51 (1) (e) of the Rubber Control Ordinance, 1934, enacts that“ any person who knowingly uses or attempts to use …. anyincorrect -entry …. in any return furnished to the RubberInvestigating Officer prior to the commencement of this Ordinance, forthe purpose of creating or purporting to create a right to the issue of anycoupon …. shall be guilty of an offence ….”
Prior to the commencement of the Ordinance an officer, called theRubber Investigating Officer, had called for returns from rubber growers.The returns purport to give particulars required for the control of theproduction and export of rubber under the Ordinance to be enacted.By section 13 (2) of the Ordinance the Controller was empowered toaccept returns so sent in, as being furnished to him under the Ordinance.The accused in this case, as correspondence between him and the RubberController after the Ordinance was in force shows, fully adopted theposition that his return to the Rubber Investigating Officer was a returnfurnished under the Ordinance. In his letter P 2 he called attentionto an error in his name and in the name of the estate, and in his letter P 3of September 7, 1934, he asked that the coupons for the 18 acres mentionedin his return be divided, 8 acres in favour of his brother and 10 acres inhis favour. In reply he was informed that coupons could only be issuedto the registered number and he must himself make arrangements with ■his brother to share the coupons when he received them. He therefore,on the facts proved, has furnished an incorrect return under the Ordi-nance for the purpose of obtaining a.larger number of coupons, valuablesecurities, than he was entitled to, and on or about April 27, 1935, heknowingly made use of this incorrect return for the purpose of obtaininga portion of those coupons, which on that date he obtained.
He had no answer to the evidence led against him establishing thefacts, but was acquitted on the ground that, whatever other offence hemay have committed, he had not committed the offence charged againsthim.
Section 51 (1) (e) is not an easy section to interpret, and in the argu-ment on the appeal before us the main ground urged in support of thecorrectness of the Magistrate’s decision was not the ground upon which37/31» 37 N. h. B. 189.
430DALTON S.P.J.—Adihetty v. Eramudugolla.
the Magistrate proceeded In acquitting the accused, and apparently wasnot one raised at all at the trial. It was, as I understood it, to theeffect that the accused had not been proved to have even used on or aboutthe date set out in the charge any incorrect entry in the return for thepurpose of -creating or purporting to create a right to the issue of anycoupon; that if he had purported to use any such incorrect entry for thatpurpose, he had done so when he first sent in the return, and that thereforehe was properly acquitted on the charge before the Court.
In dealing with this argument it is necessary to ascertain at whatpoint of time a right to the issue of a coupon arises under the Ordinance.It certainly does not arise, so far as I can see, at the time the return isfurnished, or immediately after it has been accepted, or when theController receives and registers it. It would seem that no one couldhave any right to any coupon at the earliest until the exportable maximumof rubber had been ascertained, under the provisions of the Ordinance.If that is so, when the false return was furnished, I am unable to see howat that point of time the accused could be said to be purporting to createa right to the issue of coupons.
Again, under the provisions of section 24 (1) of the Ordinance, theright of the registered proprietor to receive coupons is a right whichdepends upon the quantity of rubber which may be exported from hisestate during the period of control. That right is not created to use thatword in possibly its commonest meaning, so far as I can see, by anythingthe accused can do. The right to coupons is created by the Ordinance,but the extent of the right, so far as it relates to the number’of couponsto which a person may be entitled, may vary from year to year (seesection 41). It is not impossible to conceive, in certain circumstances,a right to obtain coupons coming to an end during the period of control,e.g., by the action of the International Regulation Committee dealingin a particular way with the exportable quota, or even by the unfortunatedestruction of the rubber trees of a registered proprietor by hurricane orfire. Further, the accused could not create by his fraud any right at allto receive coupons for 2,722 lb. of rubber, although he might fraudulentlyattempt to establish a claim to them. He having received a largeexcess over the number to .which he was entitled, the Rubber Controlleris empowered, under section 22 of the Ordinance, by making the necessaryadjustments -to withhold all further coupons in any succeeding year.
I can find nothing in the Ordinance to support the position, which,it seems to me, is necessary if there is anything in this argument in favourof the accused, that a right to the issue of coupons is created, that is,brought into existence, by his furnishing any return under the "Ordinanceto the Rubber Investigating Officer. In the course of his argumentMr. Perera asked how could the accused come within the sub-sectionand be said to create a right to the issue of coupons by making use on aparticular, date of some incorrect entry in his return, when he had in factcreated that right at a much earlier point of time. The answer to thatquestion, in my opinion, is that he had not created the right at all, as Ihave pointed out. As I understand the Ordinance, he is by that stepdoing no more than setting the law. in motion for the purpose of obtaininga right to the issue of coupons at some later period.
AKBAR J.—Adihetty v. Eramudugolla.
What then is the intention which the legislature wished to express byusing the language they have used in this section ? In construing anOrdinance one must bear in mind the object of the Ordinance and, incertain circumstances, one is entitled to modify the language used tomeet that intention. One may go so far as to give an unusual, meaningto particular words, if one is driven to the irresistible conclusion that thelegislature could not possibly have intended what its words signify, andthat the modification thus made is merely the correction of carelesslanguage used for the porpose of giving the true meaning (Maxwell’sInterpretation of Statutes, 7th ed., p. 198).
To construe the words “ for the purpose of creating or purporting tocreate ” in the sub-section in the sense Mr. Perera has asked us to do is,having regard to the provisions of the Ordinance, to give them a meaningwhich I can find nothing in the Ordinance to support, but which wouldrather imply that the sub-section provides for an offence which nevercan in fact be committed by anyone.
The intention expressed in the sub-section seems to me to be an intentionto penalize a person who knowingly uses an incorrect entry in a returnof the kind mentioned, when used for the purpose of setting up a rightor claim to the issue of coupons to which a person is not entitled. Thewords “ purport to create ” must, in my opinion, be construed as havingreference to a purpose of setting up, or seeking to establish or support, aright or lawful claim to the issue of coupons at the time the incorrectentry is knowingly used or attempted to be used. If that is correct,it seems to, me to follow that on any occasion on which a person appliesfor coupons or receives coupons on the basis of the incorrect entry in areturn made by him, with knowledge that the entry is incorrect, heknowingly uses that entry, and he uses it for the purpose set out in thesub-section.
The ground upon which the Magistrate acquitted the accused has beenargued before us, but Mr. Perera concedes th*at he places more relianceupon the ground with which I have already dealt. I regret I am unableto agree with the conclusion come to in Adihetty v. Wijeysekere (supra).The fact that a person, who knowingly uses an incorrect entry in a return byhim to obtain more coupons than he is entitled to, is entitled to some couponsdoes not, in my opinion, take him out of the operation of the sub-section.
It has been proved and found that the accused knowingly used theincorrect statement in the return furnished by him for the purpose ofestablishing his claim to the issue of the coupons set out in the charge. •I am of opinion therefore for the reasons I have given that he has com-mitted an offence within the meaning of section 51 (1) (e). I have cometo the same conclusion as Koch J., possibly by a different method, andI would allow the appeal, with a direction to the Magistrate to convictthe accused.and thereupon to pass sentence upon him.
In this case a clerk of the Rubber' Controller’s Department chargedthe accused under section 51 (1) (e) of the Rubber Control Ordinance,No. 6 of 1934, with having on April 27, 1935, knowingly madeuse of an incorrect entry in a return furnished by him to the RubberInvestigating Officer for the purpose of creating a right to the issue of
AKBAR J.—Adihetty v. Eramudugolla.
coupons, the entry being to the effect that he was the proprietor ofIhalawalauwawatte in extent 1 acre exclusively planted with rubber and17 acres interplanted with 2,670 rubber trees planted before 1927. Thelearned Police Magistrate found as a fact that the accused was the ownerof 6 acres only interplanted with 575 rubber trees, but he acquitted theaccused, as he was of opinion that section 51 (1) (e) did not apply to aperson who had a right to some coupons and that the sub-section coveredthe case of only a person who was not entitled to any coupons at all.
In Adihetty v. Wijeysekere1 Poyser j. came to the same con-clusion. He stated in the course of his judgment as follows:—“ Theappellant had the right to the use of coupons and such right was notcreated by the * error ’ in the return made by him and there is no pro-vision in this sub-section in regard to the issue of coupons for a greateramount of rubber than a person is entitled to ”. The complainantappealed with the sanction of the Solicitor-General, and as there was adifference of opinion between my brothers Poyser J. and Koch J. theappeal has been referred to a Bench of three Judges.
Sub-section (51) (1) (e) is not at all clear, but I regret I cannot agree withPoyser J. in his interpretation of the words “ for the purpose of creatinga right to the issue of any coupon ” when he thought these words wereapplicable only to persons who had no right to any coupons at all andthat the sub-section had no application to persons in the position of theaccused who had “ the right to the issue ” of some coupons. In my opinionthe words “ any coupon ” are wide enough to include a person who claimsmore coupons than he is entitled to, but the offence contemplated by thesub-section is the user with knowledge of the incorrect entry in the returnfor the purpose mentioned in the sub-section.
This seems to me to be the real point in this appeal, and as the wholeappeal has been referred to us, it is open to us to give a judgment on altthe points raised in this case. The return was sent by the accused to theRubber Investigating Officer before the Ordinance came into force, andunder section 13 (2) any return so sent may be accepted by the Controlleras a return furnished under sub-section (1) of section 13. When theController adopted the return sent by, the accused to the Rubber Investi-gating Officer as a return under the Ordinance, that was a spontaneousact of the Controller and there is no evidence in this case that the Con-troller accepted the return as one under the Ordinance owing to thepersuasion of the accused.
The Deputy Solicitor-General argued that the accused knowinglymade use of the incorrect entry for the purpose indicated in the sub-section when he wrote letters P 2 and P 3. Letter P 2 (dated June 2,1934) is a letter written by the accused returning a certain letter (notproduced) of the Rubber Investigating Officer and asking him to correctthe name of the estate and that of the writer. Letter P 3 dated September7, 1934, is a request “ to issue coupons hereafter ” for 8 acres to accused’sbrother and coupons for the balance 10 acres were to be sent in favourof the accused “ as usual ”. The reply was that coupons could only be>issued to the registered proprietor and that accused should make arrange-ments with his brother to share the coupons when received.
'37W. L. R. 189.
Silva v. Silva.
I cannot see on P 2 and P 3 any wrongful user of the incorrect entry-in the return already sent or any attempt to do so for the purpose oftreating a right to the issue of coupons. Letter P 3 is merely a requestthat the coupons when issued should be divided between the accusedand his brother. Moreover, no evidence has been led to prove that thenumber of coupons had not been allotted to the accused at the time whenP 3 was written. Under section 19 of the Ordinance the Controller afterregistration of the estate assesses the standard production. Letters P 2and P 3 show that accused’s estate was already registered in June, 1934.In the ordinary course the returns will be made use of for the assessmentof the standard production only, and it may well be that the standardproduction of the accused’s estate had been assessed when P 2 and P 3were written. At any rate the prosecution has led no evidence to provethat it had not been assessed at those dates.
Under section 23 the exportable maximum is determined and thatdepends on the standard production and not on the return. Undersection 24 the registered proprietor “ shall be entitled to receive ….coupons” only after the exportable maximum has been determined.
It will thus be seen that there is no evidence in this case of a wrongfuluser or an attempt to use wrongfully the incorrect entry in the returnafter it was sent to the Rubber Investigating. Officer. The documentP 4 shows that the accused received coupons for 552 lb. of rubber onApril 27, 1935, and that he signed his name opposite the issue of thecoupons for 552 lb. I fail to see how this receipt of coupons given to himby the Controller can be said to be a wrongful user of the incorrect return.It is significant that the date given in the complaint and in the charge isthis date April 27, 1935, and not the dates given in letters P 2 and P 3.
In my opinion the appeal fails and it should be dismissed.
ADIHETTY v. ERAMUDUGOLLA