035-NLR-NLR-V-02-GUNIJEE-v.-SILVA.pdf
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GUNIJEE v. SILVA.P. C., Colombo, Letter B.
•Criminal Procedure—Refueal to issue process—Examination of complainant—Cheating—Proof of invalid deed in, support of charge.
On a plaint being presented to a Police Magistrate he refused toissue process, being of opinion, having read the plaint, that thecoznphunant would not be able to prove his case—
– Held, that the Magistrate ought to have examined the com*.plainant, and until he had done so it was impossible for him tosay that no oharge could be made out against the accused.
In a prosecution for cheating by dishonest inducement to partwith a sum of money, it is open to the complainant to show thecircumstances in which he parted with his money ; and. if one ofthose circumstances was an agreement of no force or avail in law,as it had not been reduced to writing as required by section 21 ofOrdinance No. 7 of 1840, the complainant would still be entitledto prove such agreement.
r J^HE facts of the case sufficiently appear in the judgment.
• Pereira, for complainant, appellant.
Morgan, for accused, respondent. .
12th July, 1895. Bonseb, C.J.—
' This is an appeal from a decision of Mr. Moor, Acting PoliceMagistrate of Colombo, purporting to be given under section 159of the Criminal Procedure Code, by which he refuses to issue process.The complainant presented a written complaint to the Magistrate,alleging certain facts which he says show that the accused hascommitted a breach of the Criminal Law, i.e., cheating.
The Magistrate, instead of d6ing what the law requires him todo—i.e., examine the complainant, take down his statement inwriting, and then get him to sign it—appears to have merely readover the complaint, and after reading it to have decided that itwas clear that-the complainant would be unable to prove his case,and therefore refused to issue process. But that order was pre-mature. . The Magistrate ought to have examined the complainant,and until he had done so it was impossible for him to say thatno charge could be made out against the accused. It would besufficient simply – to remit the case to the Magistrate to beproceeded with according to law., But the question has beenraised whether, assuming the complaint to contain all that thecomplainant had to say, the Magistrate would have been justifiedin declining to issue summons.
1806.July 12.
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1895.<7t# n.
Bonsbb, C.J.
The case alleged by the complainant is shortly this: He saysthat he agreed with the accused that the accused should a 30, andhe should purchase, a piece of land; that, on the faith of thatagreement, Rs. 1,400 was paid by him to the accused, but that theaccused never had any intention to carry out his agreement; andthat he got the Rs. 1,400 dishonestly. The agreement was notreduced to writing, and therefore, under section 21 of Ordinance7 of 1840, it is of no force or avail in law; but the Magistrate isnot right in stating that the agreement could not be proved. Itwould be open to the complainant to show the circumstancesunder which he parted with his money; and if one of thesecircumstances was such an agreement as he alleges, he would be'entitled to prove that there was such an agreement.
The case must go back to be proceeded with according to law.'I express no opinion whether the complainant will be able tomake out a good case. That the Magistrate must determine afterhearing what the complainant has to say.
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