SOERTSZ J.—Amarasixghe and Silva.
1944Present: Soertsz J.
AMAEASINGHE, Appellant, and SILVA (Inspector of Police),
89—M. G., Chilaw, 22,107.
Fictitious note-—Collateral transaction to disguise the amount of the note—
Abetment of offence of taking a fictitious note—Money Lending Ordinance
(Cap. 67), ss. 13 and 14—Penal Code, s. 102.
Where a sum of Its. 650 was lent on the understanding that a promissorynote for Es. 2,000 would be given by the borrower and in pursuance o£that agreement a promissory note for Es. 2,000 was subsequently given.
Held, that the note was a fictitious note within the meaning of section;14 ot tne Money Lending Ordinance.
Where a Proctor, who arranges the loan in the circumstances andon the terms stated above, writes out the note and takes an active part,in the transaction.
Held, that he was guilty of abetting the offence of taking a fictitious note.^^PPEAL from a conviction by the Magistrate of Chilaw.
H. V. Perera, K.C. (with him E. F. FI. Gratiaen and H. W. Jayawardene),.for the accused, appellant.
H. A. Wijemanne, G.C., for the complainant, respondent..
Gut. adv. vult.
August 23, 1944. Soertsz J.—
This is a deplorable case, and I have examined it anxiously this wayand that, to see whether the evidence has established, beyond reasonabledoubt, the charge of which the appellant has been convicted, namelythat he abetted one Seiyed Mohamed Issa Bhai to take a promissory note-in which the amount stated to be due was, to the knowledge of the lender,,the aforesaid Bhai, fictitious.
I would say, at once, that it is difficult to withhold sympathy from theappellant, a young Proctor of good reputation who has fallen into thedistressing situation in which he now finds himself by responding to an;urgent request made to him by a brother Proctor in a neighbouringdistrict, and by going to the assistance of a complete stranger to him,but a kinsman of the other Proctor. The man to whose assistance-he went goes by the name of Victor Ameresekere.He is described by
the Magistrate as a “ thoroughly dishonest and unscrupulous witnessThere can be no doubt about that. He is an accompolished perjurer,thoroughly unabashed. But, the evidence reveals him as so much worsethat there is occasion to fear that he may see, in the description given-by the Magistrate, a very flattering picture of himself for, not to wastetoo many words on him, the evidence shows that law, morality, decencymean nothing at all .to him. I cannot help thinking that the Magistratewould have done well if he had promptly dealt with him under section440 (1) of the Criminal Procedure- Code.
But when all that has been said about this man, the question stillremains whether the appellant has not, by yielding to a generous impulse^and going to his assistance, thoughtlessly transgressed the law.
SOEETSZ J.—Amarasinghe and Silva.
The charge of which the appellant was convicted was laid undersection 13 of .the Money Lending Ordinance read with section 102 of thePenal Code.
Section 13 says : —
“ Any person who shall take as security for any loan a promissorynote …. in which the amount stated as due is, to the knowledgeof the lender, fictitious …. shall be guilty of an offence. ”
And section 14 explains the meaning of the word “ fictitious ” in thiscontext. It cuts down the ordinary connection of the word, and limits itto the following cases: —
Cases in which a promissory note given in respect of a loandoes not disclose upon it any reduction made or sum paid to or aboutthe time of the loan on account of interest, premium or advance charges;
Cases in which a promissory note is taken or other obligationincurred in respect of a loan and at or about the time of the loan, a -paymentis made or a collateral transaction entered into in order to disguise theactual amount advanced or .the rate of interest payable.
Upon the evidence this case cannot be brought, under (a) so that if thispromissory note is “ fictitious ” it must be so under (6), and even there,i.t is clear, upon the evidence, that it is not within the first part of (b) forno sum was paid, no reduction made in the manner indicated. Thesole quetion on this part of the case, therefore, is whether .there was adisguising collateral transaction of the kind indicated. Mr. H. V. Peferaargued that the admitted fact that on the document itself a larger sumwas inserted than was actually lent did not amount to a collateraltransaction. That he submitted was a part of the main transaction itself.I have examined that submission with all the care it undoubtedly deservedand I could give, and it seems to me that it overlooks the fact that thispart of the section contemplates the actual loan, as the main transaction.Collateral transactions may be of all sorts. The giving of the promissorynote, whether it precedes the actual loan or is simultaneous with it orsubsequent to it, may itself well be the collateral transaction, as I thinkit is in this case, for the facts, really not disputed, or at any rate foundby the Magistrate, are .that the loan was made at Kurunegala, and thenote was given some hours later at. Marawila, and that at Kurunegalait was understood by all the parties concerned that the note that wasgoing to be given was to be a note for Bs. 2,000, although the sum actuallylent was Bs. 650 and such a note was actually given by the borrowers.On .these facts I cannot but hold that when this note was given inpursuance of the agreement entered into at .the time of the loan therewas collaterally with the loan, a transaction entered into with a view todisguising the actual amount advanced and the rate of interest. Thenote was therefore, a fictitious note within the meaning of section 14.This was the view taken in Sockalingam Ghettiar v. Ramanayake1. Itfollows that the Afghan who took the note rendered himself liable undersection 13.
1 35 N. L. R. 35.
SOERTSZ I.—Amarasinghe and Silva.
The only other question in the case is whether the appellant is liableas an abet.tor. In that regard, the appellant’s liability depends onwhether, on the evidence accepted by the Magistrate, the appellantcan be said to have “ intentionally aided by an act ” the taking of thispromissory note by the Afghan. In other words whether he facilitatedthe taking of .the note.
The kind of abetment taken in large involves a question of difficultywhich has given rise to a wilderness of single instances, some apparentlyinconsistent with others. To mention a few in Reg. v. Coney 1 the secondsin a prize-fight which ends fatally, as well as spectators who activelyencouraged the contest by their applause were held to aid and (abetbut not so the mere spectators, but in contrast there is Rex v. Gray 2.Similarly in India in the case noticed by the Magistrate, the priest whoofficiates to solemnize a bigamous marriage is an abettor, but not so thepersons who are present, at. the marriage. Again in Bomdila Sankarav. Singh ([1884—1 Weir 47—Gour. p. 620) a man who wrote and attested asale deed of a child purchased by a prostitute for purposes of prostitutionwas not liable as an abettor for the transactions might have beencompleted without any writing at all. The principle appears- to be thatin order to make an abettor the facility afforded must be such as wasessential for the commission of the crime. Whether there was assistancein an essential way is a question of fact and must depend on the findingsin a particular case.
Applying this principle to the facts of this case I must hold that theappellant fills the role of an abettor. Although he cautioned Ameresekereagainst getting into the clutches of the Afghan—incidentally I wouldobserve that, as subsequent facts proved, it was the Afghan who stoodin need of being cautioned against Ameresekere, for it was he whoeventually got info Ameresekere’s clutches—the appellant ultimatelyarranged the loan and its terms, he took the money .to the scene of thesale and got the sale stayed; he actually wrote the note in question;and whether he asked for it or not he was given Us. 60 as a fee or as asolatium. Indeed one might say that without his part in it the playwould lack the prince.
In view of the many mitigating features in favour of the appel-lant the Magistrate imposed a nominal fine, but after a most anxiousconsideration of the case in all its aspects and taking into accountthe fact that this is the first instance in which, so far as I am aware,such a prosecution was launched, I am of the opinion that the ends ofjustice will be mef by an order under section 325 (1) (a) of the CriminalProcedure Code. The warning will serve to bring home to the appellantand others the peril attendant upon such a participation, as there wasin this instance, in transactions of this kind.
I would send the case back to the Magistrate for him to take actionin the manner indicated. The fine will be remitted.
Case sent back.
* (1882) 8 Q. B. D. 534.
(1917) 12 Cr. A. R. 246.
AMARASINGHE, Appellant, and SILVA (Inspector of Police ), Respondent