084-NLR-NLR-V-62-ARIYARATNAM-Appellant-and-S.-I.-POLICE-Respondent.pdf
BL IST. G. FERNANDO, J.—Ariyaratnam v. S. I. Police
451
1960Present: H. N. G. Fernando, J.ARIYARATNAM, Appellant, and S. I. POLICE, Respondent
S. C. 88—M. C. Kandy, 2522
Penal Code—Section 302A—Criminal breach of trust by ■public servant in respect ofmoney or balance of money—Ingredients of offence.
In a prosecution under Section 392A of the Renal Code for criminal breachof trust by eJ public servant, an essential ingredient of the offence is the failureof the accused to pay money or to account for money when required to do soby an officer mentioned in the Section.
Appeal from a judgment of the Magistrate’s Court, Kandy.
Colvin R. de Silva, with M. M. Kumarakulasingham and S. Saravana-muttu, for the Accused-Appellant.
P. Colin-Thome, Crown Counsel, for the Attorney-General.
August 5, 1960. H. N. G. Fernando, J.—
The appellant has been convicted on a. charge under Section 392Aof the Penal Code in respect of a sum of just under Rs. 2,000/-. ThatSection makes punishable the failure by a Public Servant either to payover or produco money or balances apparently due according to accountskept by him in his official capacity, or else to duly account for such
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money or balances. But no offionce arises unless there is such a failurewhen the Public Servant is required (to pay over, produce or account)by one of the officials mentioned in the Section. In its amended form theonly offi -.ials whom the Section mentions are, The Secretary to the Trea-sury or the Deputy Secretary to the Treasury, The Auditor General,Tiie Assistant Auditor General or any officer specially appointed by theSecretary to the Treasury to examine the accounts of the Departmentconcerned. It will bo seen that in order to bring the Section into opera-tion there must, first, be a requirement addressed to the Public Servanteither by one of the functionaries expressly mentioned or else by anofficer specially appointed by the Secretary to the Treasury to examinethe accounts in question.
In this case the officer who addressed a requirement to the appellantwas not a person holding a special appointment made by the Secretary
452
The Queen v. Eclirinianasingham
to the Treasury. His authority,.P 1, which has been produced, purportsto appoint him a deputy to the Auditor Gmeral for the purpose of exa-mining the relevant accounts, but that authority has been granted by theAuditor G meral and not by the Se -retary to the Treasury. The provi-sions in S xjtion 392A as to the officer by whom a requirement mentionedin the Section should be given is manifestly an imperative provision andit would not be open for me to take notice of the fact that virtuallyspeaking an authority granted by the Auditor General should be regardedas being as good as one granted by the Secretary to the Treasury.
The circumstances to which I have referred have the result that theprosecution has failed to prove an essential ingredient of the charge,
I namely, that there was a failure to pay money or to account for moneywhen required to do so by an officer mentioned in the Section. Thecharge, therefore, must necessarily fail.
Crown Counsel has invited me to consider whether in the circumstancesa conviction of an offence under Section 392 cannot bo entered in substi-tution. Considering that the burden of proof on the prosecution in acharge under Section 392A is, even to some slight extent, of a lesserdegree than that which obtains in charges framed under Section 392,I cannot agree to that. S ich a course by me would entail the necessityto reach findings of fact on matters which may not have received theconsideration of the trial judge.
X hold that no charge under Section 392A lies against the appellanton the facts which the prosecution are able to prove. Accordingly theappeal has to be allowed and the appellant acquitted.
A-pjiC.O’l allowed.