131-NLR-NLR-V-51-ANNAMALLAI-Appellant-and-GURUSWAMY-S.-I.-Police-Respondent.pdf
NAGALINGAM J.—Annamalai v. (htfuewamy
543
I960Present: Nagallngam J.
ANNAMALAI, Appellant, and GURUSWAMY (S. t. Police),Respondent
-S'. (J. 1,148—M. C. Colombo, 6,265
Pawnbrokers Ordinance, .Vv. 15 of 1942—Section* 37, 40, 41—Offence committedby servant of pawnbroker—Proper cltarge—Burden of proof—Proviso to Section40—Effect of a proviso.
The accused-appellant- was the servant of a pawnbroker. The charge againsthim was that he being a servant of a pawnbroker had acted in contraventionof two provisions of the Pawnbrokers Ordinance, No. 13 of 1942, and therebyhad committed offences punishable under Section 41. The charge containedno reference to the pawnbroker having been absent Cram the shop or premisesat the time the appellant was alleged to have committed the offences. Norwas any evidence given with regard to the whereabouts of the pawnbroker.
Held, that, under section 40 of the Pawnbrokers Ordinance, unless theprosecution satisfied the Court- that the pawnbroker himself was absent fromthe premises tho servant could not be held to have committed an offence.'Pk*a. charges were th**»<v>re defective and the case itself was not establishedagainst tf
/iPPEAL from a judgment of the Magistrate’s Court, Colombo.
K.C. Nadarajah, with M. Markkani and D. R- P. QoonctUeka, foraccused appellant.
A. C. AUes, Crown Counsel, for the Attorney-General.
Cur. fldv. vull.
March 31, I960. Nagalikgam J.—
This appeal raises an interesting question under the PawnbrokersOrdinance, No. 13 of 1942. Section 40 of that Ordinance renders apawnbroker liable to vicarious punishment for anything done or omittedto be done by his servant in relation to the business. On the heels ofthis enactment follows a proviso rendering the servant liable in theabsence of the pawnbroker from the shop or place of business to punish-ment fen any act done ear omitted to be done in contravention of anyprovision of the Ordinance.
844
NAQALINOAM J.—Annamakd v. Guruswamy
Admittedly, the appellant was the servant of a pawnbroker. The chargethat was laid against him was that he being a servant of a pawnbrokerhad acted in contravention of two provisions of the Ordinance andthereby had committed offences punishable under section 41 of theOrdinance. The point taken on behalf of the appellant is that not onlydoes the charge fail to disclose any offence but that even tho evidencefalls far short of the proof required of the essentials constituting theoffence. The charges contain no reference to the pawnbroker havingbeen absent from the shop or premises at the time the appellant is allegedto have committed the offences, nor was any evidence given with regardto the whereabouts of the pawnbroker. It has been contended on behalfof the accused that unless the prosecution satisfies the Court that thepawnbroker himself was absent from the premises the servant cannotbe held to have committed an offence.
Section 37 of the Ordinance enumerates a number of acts all ofwhich it declares to be Offences and for which the pawnbroker is madeliable. Section 40 of the Ordinance runs as follows :—
40- Anything done or omitted to be done by the servant or agentof a pawnbroker in the course of or in relation to the business of apawnbroker shall be deemed to bo done or omitted, as the case may be,by the pawnbroker:
Provided that where, in the absence of a pawnbroker from his shopor place of business, anything is done or omitted to be done by anyservant or agent of the pawnbroker in contravention of any provisionof this Ordinance snob servant or agent shall also be guilty of an offonceand shall be liable on convictiou to the penalty prescribed for thatoffence by t his Ordinance,
it will bn noticed that in the main provision of the section a pawnbrokeris made liable for the act ot omission of his servant; the proviso doesnot create an exception in regard to the liability of the pawnbrokerhimself. As was said by Lord Macmillan in the caso of Madras andSouthern MahrnUa Uailway Company, Limited, r. Bezwnda Municipality“ The proper function of a proviso is to except and deal with a casewhich would otherwise fail within the general language of the mainenactment and its effect is confined to that case. ”
Had the proviso been worded thus : “ Provided that where in the absenceof a pawnbroker from his shop or place of business anything is done oromitted to be done by the sorvant or agent of the pawnbroker incontravention of any provision of this Ordinance the pawnbroker shallnot be guilty of an offence ”, then the provision would have been a trueproviso and in the language of Lord Abinger C. B. in Thibault v. Gibson *:“ Whcro it (the exception) comes by way of proviso in a subsequentpart of tho act, it is not necessary to notice it in tho declaration orinformation but it is a matter which the defendant must allege as aground of defence ”
and the contention of learned Crown Counsel that it is not necessaryfor the prosecution to prove the absence of the pawnbroker would be
'-AIR. {10*4) P. C. 71.
*12 M. 4 W. 86 at 94.
NAOALINGAM J.—Annamalai v. Guruswamj;"45
correct. But here, although the second part of section 40 is prefacedby the words “ Provided that ” it does not create an exception to themain provision. In fact the words " Provided that ” have been looselyused by the draftsman without appreciating its legal significance. Notonly would the second part of that section stand without suffering- inits meaning but it would also bring out the intention of the Legislaturemore corroctly if the words "provided that” were omitted therefrom,because this second part of the section deals with an entirely differentcategory of liability of persons unconnected with the class dealt with inthe main provision.
Learned Crown Counsel relied on the cases of King v. Turner1 and Kingv. James and Johnson 2, but theso cases only serve to emphasise theposition that given a true proviso the burden of establishing that a partyis ontitled to the benefit created by the proviso is on the party claimingthe benefit of it. But theso cases certainly cannot be regarded asauthority for the proposition that where there are independent enactmentsor where by the more use of the words " provided that ” a pseudo provisois enacted then tho principle of those cases applies. To constitute theoffence created by this proviso the prosecution must establish not onlythat the servant did or fail to do some act in contravention of someprovision of that Ordinance bat also that it was done by him at a timewhen the pawnbroker was absent from the shop or place of business.If the phrase “ in the absence of a pawnbroker from a shop or place ofbusiness ” is regarded as an exception and, as contended for by learnedCrown Counsel, the burden is thrown on the accused to prove thisexception, the curious result 'would follow that the accused would thenhave to prove facts to establish his own. guilt, for by proving that thepawnbroker was absent tho accused forges the last link in the proof oftho elements necessary to constitute tho offence.
On the other hand it cannct be contended that the servant must provetho presence of the pawnbroker in the shop or place of business in orderto exculpat© himself, for there are no word3 anywhere cither in theprovision or in the pseudo proviso under which it could be argued thatthe law has created an exception to the liability of the servant by enactingthat no liability should attach to him if he establishes that the pawnbrokerwas present,
It seems to me, therefore, that in order to constitute the offence theprosecution must establish that the act or omission of the servantconstituting the offence was committed by him at a time when bisemployer, the pawnbroker, was absent from the premises. I thereforehold that the charges arc defective against the accused and that the caseitself has not been established against him.
T set aside tho conviction and acquit the accused.
. ippe-.-l nlhtrcl.
1 105 E. R. 10JC.
» L. It. <190i) I Q. B- D. ,U0.