OFFICER IN CHARGESPECIAL CRIME^ DETECTION UNITANURADHAPURA
COURT OF APPEALP. R. P. PERERA J.
CA NO. 608/80
M. C. NO. 2660 KEBETRGOUAWANOVEMBER 23. 1987.
Criminal Law — Criminal breach of trust — Inference of dishonesty —Explanation — Burden of proof — S. 391 of the Penal Code.
The 1st accused-appellant in his capacity as cashier of the KebittigollswaM.P.C.S. Ltd. received between 20.6.1975 and 1.7.75 a total of Rs. 30.808/38but on the Police opening the safe in the presence of the official of the Societyfound the cash in short by Rs. 14. 166/72. The 1st accused-appellant hadcustody of the key of the safe but the safe was a Iso .secured with a padlock, thekey of which was in the custody of Piyaretne who was the 2nd accused in theMagistrate's Court. Both the appellant and Piyaratne were charged with theoffence of criminal breach of trust of Rs. 14,166/72. Although both the keys inthe possession of the two accused had to be used for opening and closing thesafe as at the date of the commission of the offence the padlock arrangementwas not in use as the padlock was out of order. The 2nd accused was acquittedbut the 1st accused was convicted under s. 391 of the Penal Code.
The inference of dishonest misappropriation or conversion is an essentialingredient of the offence under s. 391 of the Penal Code.
The Court can rightly take into account the accused's failure to give evidence byway of explanation. By this no burden was being cast on the accused.
APPEAL from judgment of the Magistrate of Kebittigollawa
E R. S. R. Coomaraswamy. P.C. with Shanaka de Livera for 1st accused
Mrs. Kumudhini de Siiva. State Counsel for complainant — respondent
ABril 29. 1988
The appellant in this case together with one Piyaratne wascharged with having committed the offence of criminal breach oftrust of Rs. 14.166/72 cts entrusted to him in his capacity as
cashier of the Kebittigollawa M. P. C. S. Ltd., between 20.6.75.and 1.7.75 — an offence punishable under section 391 readwith section 32 of the Penal,Code. After Trial, the learnedMagistrate found the accused/appellant guilty of the charge andsentenced him to a term of ong year's Rigorous Imprisonment,and a fine of Rs. 1.000/-. The appellant was sentenced to afurther term of 12 months Rigorous Imprisonment in default ofthe payment of the fine. Piyaratne, the second accused, fcasacquitted of the charge. It is against this conviction and sentencethat the present appeal has been lodged by the appellant.
According to Wijesundera. the Chairman of this M.P.C.S.. whowas also the Assistant Government Agent at this time, he wasinformed by the Manager of the Co-operative Society, on 17.75,that the appellant who was the cashier of the Society, and whohad the custody of the safe keys, had not reported for work fromthe 28th June 1975. resulting in the transactions of the Society .being adversely affected. He then directed the Manager, tocomplain to the Police. This witness has stated that according tothe rules of the Society, at the end of each day, all the cash andcheques collected had to be entered in a document known asForm 11. by the cashier. This form is countersigned by theAccountant and lodged in the safe by the cashier until thefollowing morning when it is deposited in the People's BankBranch at Kebittigollawa. There were two keys to this safe. Onekey is the actual key to the safe, while the other was used to locktne padlock on the iron hoop across the safe. The key to the safeOkas in the custody of the appellant while the other key was withthe second accused — Piyaratne, who has since been acquitted.Ordinarily it was necessary for both the appellant and Piyaratneto be present when the safe is opened, in view of thisarrangement
It is the evidence of this witness, that he examined the books ofthe Co-operative Society and found that the last date on whichthe collections of the Society had been deposited in the PeoplesBank was on 24.6.75. He therefore held an inquiry and decidedto summon the Police to investigate into this matter. In thecourse of his inquiry this witness discovered that as at 24.6.75
there should have been in the safe a sum of Rs. 10,996/70 cts.As the appellant had not reported for work, the Manager of theRural Bank, had acted for the appellant from the afternoon of25.6.75 up to 27.6.75 as cashier. A sum of Rs. 16,428/88 cts.had been collected during this period and had been handed overto the appellant who had reported for work on 28.6.75, On28.6. 75 according to the books of the Society, the appellant hadcollected a further sum of Rs. 3,261/25 cts. Further, accordingto document *P2 which was the Salary Abstract of an employeeby the name of Karunaratno, a sum of Rs. 121/55 cts. had beenhanded over to the appellant by the Manager of the Society. It isin evidence that Karunaratna had not been paid for the month ofJune 1975. Thus the total amount of money that should havebeen in the custody of the appellant according to the documentsmaintained by the Society as at 1.7.75, was Rs. 30.808/38 cts.
Upon the complaint made to the Police, by the Manager of theSociety on 1.7.75, the Police had arrived on the scene around10.30 p.m. The Manager, had after a search found the key to thesafe in the appellant's drawer, which he had opened with aduplicate key which was in his custody. The Police, thereafter inthe presence of the Manager and several other co-operativeofficials had opened the safe that night, and found a sum of Rs.1 6,641 /66 cts. both in cash and cheques.The appellant had not reported for work on this date. There wastherefore a shortage of Rs. 14,166/72 cts. as alleged in thecharge.
It would be safe to presume on the evidence of this witnessthat at the time this offence is alleged to have been committedthe safe in question was locked only with the key which was inthe custody of the appellant, as the padlock which was used inaddition to lock this safe,, had been found to be defective. Thisposition is supported by Inspector Abeysinghe'who investigatedinto this offence. The evidence set out above is substantiallysfipported by the Manager of the Co-operative Society.Abeyrafpe. Abeyratne has also produced marked 'P1‘, theattendance register maintained at this Co-operative Society.According to this register the appellant and the second
accused has reported for work on 24.6. (75. On 25. 6.75. boththe appellant and the second accused had reported for work, butthe appellant has not indicated thp time of departure. On 26. 6.75 and 27.6. 75. while the appellant had not reported forwork, the second accused had reported for work. On the 28thJun^. which was a Saturday, the appellant and the secondaccused had reported for work but both had not recorded theirtime of departure. The 29th June 1975. was a Sunday, and wasthus a non working day. On the 30th June 1975. and on the 1stJuly 1975 the appellant had once again failed to report for work.
The Manager of the Rural Bank one Tikiri Banda, who has alsotestified in this case, has stated, that he acted for the appellant atthe Society in the afternoon of the 25th June 75. and on the26th and 27th June 1975. He had collected a sum of Rs.16,428/88 cts for these three days, and had handed over thissum of money to the appellant when he reported for work on28th June 1975. This witness had produced marked ’P8 areceipt from the appellant acknowledging receipt of this moneyfrom this witness.
Witness Premaratne Fernando, a Co-operative Inspector whohad been nominated to hold an inquiry by the Co-operativeDepartment has testified to the effect that he had examined thebooks of this Society for the period 20.6.75 up to 28.6.75 andtHBT a shortage of Rs. 14,045/17 cts. was discovered by him. Heh& produced his report marked 'P9'.
Further, the Manager of the People's Bank Kebittigollawa hasstated that the Bank was open for business on 25.6.75 and thatno deposits have been made to the credit of the M.P.C.S.Kebittigollawa. on this date.
It is also relevant to note that the Manager of the M.P.C.S. hasstated specifically that the collections of the Society in thfecourse cf its day to day transactions which is in the custody ofthe cashier is not utilised under any circumstances to meet anyexpenditure incurred by the Society. The prosecution has also
produced marked ‘P5' a document signed by the appellantand the second accused certifying that a sum of Rs.10,996/70 cts. has been lodged in the safe on 24.6/75.
At the close of the prosgcution case, the appellant wascalled upon for his defence and he gave no evidence. The realquestion therefore that this Court has to decide is whether theabove material is sufficient to establish dishonestmisappropriation or conversion to his own use. money whichwas entrusted to him while he functioned as cashier of thissociety.
Learned President’s Counsel,, contended on behalf of theappellant that in a charge of criminal breach of trust, it is notenough for the prosecution merely to prove that the servantwho is charged has not accounted for all the money that hehas received and for which he was bound to account forthere may be other explanation for the deficiency besidesdishonesty, and the prosecution must prove circumstancesfrom which dishonesty could be inferred.
When one looks at all the facts proved in the instant casethere can be no doubt that the inference of dishonestmisappropriation or conversion could easily be drawn. Theyare not capable of any innocent explanation, nor has theappellant at any stage attempted an explanation. Moreoverthis seems to be. a case where the Court-can rightly take intoaccount the accused's failure to give evidence. This is not toput the burden on the accused. The prosecution has placedsufficient evidence in the light of which the Court couldjustifiably draw an adverse inference from the appellant’sfailure to give evidence. I therefore see no justifiable reason tointerfere with the finding of the learned Magistrate in thiscase. I affirm the conviction and sentence. The appeal isaccordingly dismissed.