004-NLR-NLR-V-37-ELIYATAMBY-v.-KATHIRAVEL.pdf
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Bliyatamby v. Kathiravel.
1935
Present: Drieberg J.
ELIY ATAMBY v. KATHIRAVEL’
1,023—P. C. Badulla, 15,768.
Cheating—Redeeming article pawned—False statement in declaration—Lossto pawnbroker—Charge of giving false evidence—Ordinance No. 8 of1893, s. 19 (1) and (2)—Penal Code, s. 190.
Where a person redeemed an article pawned by him by making afalse statement in a declaration made under section 19 (1) of the Pawn-brokers Ordinance,—
Held, that he cannot be convicted of cheating, as the pawnbroker,who acts upon such a declaration is indemnified under section 19 (2) ofthe Ordinance.
A false statement contained in such a declaration may be made thesubject of a charge of giving false evidence under section 190 of thePenal Code without the previous sanction of the Attorney-General.
DRTEBERG J.—Eliyatamby v. KathiraveI
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^ PPEAL from a conviction by the Police Magistrate of Badulla.
Gratiaen, for accused, appellant.
Cur. adv. wilt.
January 15, 1935. Drieberg J.—
Karuppiah who was about to leave for India, entrusted the appellantwith an attiyal, worth Rs. 105, to be pawned. The appellant pawnedit on October 13, 1933. He obtained for it Rs. 35 of which he gave Rs. 30to Karuppiah and he retained Rs. 5. He gave the pawn ticket to Karup-piah. In February, 1934, the appellant made a-declaration P 2 attestedby a Justice of the Peace that he had misplaced the receipt and couldnot find it. This is the declaration provided for in section 19 (1) of thePawnbrokers’ Ordinance, No. 8 of 1893. He presented this declarationto the pawnbroker, paid him Rs. 37.40 and was given the attiyal. InMarch, 1934, Karuppiah presented the pawn ticket to the pawnbrokerand found that the attiyal had been previously reclaimed by theappellant.
The learned Police Magistrate acting under section 152(3) of the
Criminal Procedure Code convicted the appellant on the followingcounts: — (1) Cheat and thereby dishonestly induce Mr. Thiagarajah todeliver to him an attiyal worth Rs. 105, an offence punishable undersection 403 of the Penal Code. Thiagarajah is the pawnbroker. (2)Being bound to state the truth in an affidavit made a statement in it tothe effect that he had lost a pawn ticket knowing it to be false, an offenceunder section 180 of the Ceylon Penal Code. (3) Intentionally fabricatefalse evidence, section 190 of the Ceylon Penal Code.
I have followed the wording of these charges as they are set out in thejudgment. The appellant was convicted on these charges and sentencedto six months’ rigorous imprisonment. Mr. Gratiaen contendedthat the evidence did not support a conviction on any of thesecharges.
The conviction on the charge of cheating is wrong. Under section19 (2) of the Pawnbrokers Ordinance, Thiagarajah, the pawnbroker,was indemnified when he gave the appellant the attiyal on his givinghim the declaration. He suffered no damage or harm by acting on thefalse representation in the declaration and he could not therefore havebeen cheated. The learned Police Magistrate, however, held thatThiagarajah and his master were injured in body, mind, and reputationand that this supplied the necessary element of the offence. While thematter no doubt caused annoyance to the pawnbroker it cannot be saidthat he was injured in mind or reputation.
In the second charge “ 180 ” is, I think, a mistake for “ 188 ”, buteven then there is no offence created by that section which is merely adefinition of what is false evidence. The offences constituted by thegiving or the use of false evidence are stated in the later sections and inthis the charge was laid under section 190.
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DRIEBERG J.—Eliyatamby v. Kathiravel.
The written report by the police which intitiated the proceedings,charged the appellant with two offences—one under section 197 of cor-ruptly using a declaration “which a person, viz., the pawnbroker, wasauthorized by law to receive, such declaration containing a false state-ment that the attiyal was lost; the other was under section 386 of thePenal Code, dishonest misappropriation of the attiyal. The appellant’sdealing with the attiyal after he got it on the false declaration, if believed,were sufficient for the purposes of this offence or criminal breach of trust,for he thereafter had his wife’s name engraved on it and pawned it throughRengaswamy with another pawnbroker. But it is not clear whetherthe appellant has restored the attiyal to Karuppiah.
Evidence was recorded on these charges on March 5 and 19, 1934. Atthe adjourned hearing on April 16 the appellant’s proctor took theobjection that the sanction of the Attorney-General had not been obtainedto the charge under section 197; The Magistrate upheld the objectionand directed that the case should proceed only on the charges undersection 386. The prosecuting police officer asked for “ a date to rectifyhis position ” as regards the first charge. I take it that he wanted timeto obtain the sanction of the Attorney-General. This was allowed andthe trial postponed for May 14, then postponed for want of time to May30, and after another postponement, the trial was resumed on July 30.On this day the Magistrate noted that he thought the charge under section386 could not be maintained and that the only charge that remainedagainst the. appellant was under section 403. He charged the appellantwith offences under sections 403, 188, and 190 and declared that he wouldtry him summarily under the provisions of section 152 (3) of the CriminalProcedure Code. The appellant’s proctor was not present on this daybut he was when the trial took place on August 27. No objection, however,was taken to the absence of the Attorney-General’s sanction to the chargeunder section 190. The objection, however, was taken in the petition ofappeal and before me.
Section 190 deals with giving false evidence in a judicial proceedingand with giving false evidence “ in any other case ” and it is within thelatter class that this case falls. Section 147 (lb) of the Criminal ProcedureCode says that when an offence under-section 190 is “committed in orin relation to any proceedings in any court ” no prosecution for it can bemaintained except with the previous sanction of the Attorney-General ■or on the complaint of the court concerned. There is no such provisionwhen the false evidence is given in other than judicial proceedings. Theobjection must therefore fail. I
I can see no reason why this case cannot be brought under the latterclass in section ISO. We have statutory provision for the means bywhich a person who has pawned an article can redeem it when he haslost the pawn ticket. The declaration is made evidence on which thepawnbroker can act so as to get protection for himself. The offencemight have been brought under section 197 or the appellant might havebeen charged under section 19 (3) of the Pawnbrokers Ordinance, buthis- offence also falls within section 190.
MACDONELL C.J.—Ranasinghe v. Dhammananda.
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I set aside the conviction on the first and second charges, viz., undersections 403 and 188. The conviction on the third charge, under section190, and the sentence of six months’ rigorous imprisonment will stand.Subject to this alteration, the appeal is dismissed.
Varied.