Ellawalla and Inspector of Police.
:I944Present • Moseley S.P.J.
ELLAWALLA, Appellant, and INSPECTOR OP POLICE,
834—-M. G. Colombo, 2,279.
tion—Penal Code, s. 398.
Where, on the strength of one expressed representation, which was.false the accused was charged with three offences of cheating, committedwithin the course of three months—
Held, that the combination of three offences in one charge was notirregular if it could be inferred from all thecircumstances that the
representation was a continuing one. 11
11 Moore Indian Appeals, p. 486.
MOSELEY J.—Ellawalla and Inspector of Police.
PPWAL from a conviction by the Magistrate of Colombo.
H. V. Perera, K.C. (with him E. F. N. Gratiaen), for accused, appellant.
R.R. Crosette-Thambiah, C.C., for complainant, respondent.
Cur. adv. vult.
January 25, 1944. Moseley J".—
The appellant was convicted, on three counts, of cheating. He wascharged with deceiving the Petrol Controller into the belief that couponsfor an extra one hundred and fifty gallons per month were necessary forthe requirements of the Aero Club of which the appellant was President,and that he thereby induced the Controller to deliver coupons to thatextent during the months of February, March and April, 1942, respectively.It may be that the learned Magistrate in the course of an exhaustive and,on the whole, careful judgment has attached too much importance tocertain items of evidence or has drawn an inference which cannot bewholly justified, but his findings in respect of the points essential to theconstitution of the offence of cheating are unassailable. He found, asfacts, that the appellant not only signed but was the author of the letterto the Controller which contained the representation as to the require-ments of the Club. He found that that representation was palpablyfalse and that the appellant was aware of its falsity. In regard to thedishonest intention of the appellant, he gave due regard to the infirmitiesin the evidence of the witnesses, Martin and Don Vincent, and to thecharacter of the latter but had no difficulty in finding that such intentionexisted. With these findings of fact I am in complete agreement. It isabundantly clear that the Controller was cheated.
The only point which seemed to me to call for consideration is whetherthe appellant who had in fact made but one express representation, wasproperly charged with the commission of three offences. The extracoupons for the month of February were stated by the Controller to havebeen issued in view of the representation made to him on that occasion •by the appellant. Thereafter no further representation was expresslymade. It is not, however, necessary that the representation shouldbe made in express words, if it can be inferred from all the circumstancesattending the obtaining of the property. If authority is required for thisproposition, it can be found in Khoda Bux v. Bakeya Mundari x, approvedin Ram Chand v. Jai Dial 2. The fact that no unexpended coupons, thatis, coupons in excess of requirements were ever returned by the Clubto the Controller seems to me to imply a representation on the part ofthe appellant that the extra coupons for which he had applied were stillrequired. The representation made in the original letter, in the absenceof express variation may properly be held to be a continuing one. I haveno doubt but that the appellant was properly charged with, and convictedof three offences. The sentences imposed seem to me in no way excessive.
The appeal is dismissed. Conviction and sentences affirmed.
a 32 Cal. 941.
13 Ct. L. J. 456.
ELLAWALLA, Appellant, and INSPECTOR OF POLICE, Respondent