010-NLR-NLR-V-48-In-re-MARIKAR-MOHAMED-a-Proctor.pdf
In re Marikar Mohamed.
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1846 Present: Wijeyewardene and Canekeratne JJ. and Nagalingam AJ.In re MARIKAR MOHAMED. a Proctor.
Proctor—Prosecution for criminal breach of trust—Confession of guilt—Mitigating circumstances—Suspension from practice—Courts Ordinance(Cap. 6), s. 17.
The respondent, a Proctor, had pleaded guilty to a charge of criminalbreach of trust in respect of a sum of Bs. 10 and had been dealt withby the Magistrate under section 325 of the Criminal Procedure Code.On application made under section 17 of the Courts Ordinance to havehis name removed from the Roll of Proctors it was established thatthere were circumstances which made it possible for the Court to treathim leniently.
Held, that, in the circumstances, the respondent should be suspendedfrom practice for a period of one month.
IHLS was a Rule issued against the respondent, a Proctor of the
T Supreme Court, to show cause why his name should not beremoved from the Roll of Proctors.
A. Hayley, K.C. (with him P. Navaratnarajah), for the respondent.—The respondent has cause to show why he should not be removed fromthe roil of Proctors. The rule states that the respondent has beenconvicted under section 389 of the Penal Code. But there is no convictionas the respondent has been dealt with under section 325 of CriminalProcedure Code.
[Counsel then states the facts of the case and moves to read in evidencethe affidavit of the respondent, to produce the books of the Kathi Courtduring the relevant period, and to lead the evidence of Mr. E. B.Weerakoon, Proctor. Mr. Pulle, formally objects to the evidence ofMr. Weerakoon on the ground that evidence is tendered to show thatan essential ingredient of the offence under section 389 was not present.The evidence is led.]
The respondent’s affidavit and the books of the Kathi Court provethat the respondent had no need to take this money and that the failureto enter the sum in the books and pay the sum to Zurath Nazeema wasdue to an oversight owing to the disturbed state of affairs prevailingat the time. The affidavit, taken together with Mr. Weerakoon’s evidence,proves that the respondent pleaded guilty as he was anxious to endthe case and as he confidently expected to be dealt with under section 325of Criminal Procedure Code. The respondent did not think his positionas a Proctor would be jeopardised. As a matter of fact the Magistratehimself has stated that in all the circumstances he was satisfied thatthe respondent had no dishonest intention.
Therefore, it is quite clear that the respondent has not been guilty ofany offence, malpractice or decit as would require him to be dealt withunder section 17 of the Courts Ordinance.
MJT.S. Pulle, Acting Solicitor-General (with him E.L.W. de Zoysa, C.C.)in support of the Rule.—A preliminary point arises whether the respondent.
In the Matter of an Application by the Acting Solicitor-General fob a Rule on Alia Marikar Mohamed, aProctor of the Supreme Court, and in the Matterof Section 17, the Courts Ordinance.
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WUEYJ5WARDENE J.—In re Marikar Mohamed.
having confessed to an offence, should be permitted to deny the existenceof one of the essential ingredients of that offence. The respondentcannot canvass the finding of the Magistrate's Court in these proceedings.See In re Kandiah1 and In the matter of Rajendro Nath Mukerji *. Theapplication must be disposed of only on the basis that the respondent hasbeen found guilty of an offence under section 389 involving dishonestintention.
The Magistrate had misdirected himself when he stated in his orderthat the respondent had no dishonest intention in converting the postalorder to his use. The plea of guilt tendered by the respondent was thebest proof before the Magistrate that the intention of the respondentin cashing the postal order was dishonest.
In calling evidence in this Court the respondent is in effect seeking torevise the Magistrate's order. If the respondent’s position is . that he isnot guilty of the offence his remedy is to get the Magistrate’s order setaside in appropriate proceedings.
A Proctor may be removed from the roll for acts committed outside hisprofession if such acts render him unfit to hold office. See In re Brito'following In re Weare', and also Attorney-General v. Ellawella" and Inthe matter of Proctor Joseph Gerald Fernando *.
The respondent was not merely a public servant but a judicial officerwho confessed to having misappropriated a suitor’s money.
If the respondent pleaded guilty against the advice of his lawyers thatwould show that he regarded lightly an imputation of dishonestly againsthim.
F. A. Hayley, K.C., in reply.—If the respondent has been convictedafter a full hearing and trial perhaps the submission that the finding ofthe Magistrate cannot be canvassed in these proceedings might becorrect. But no evidence has been led in this case. The power ofthe Supreme Court in these proceedings is unfettered by ordinary rulesof procedure. See Attorney-General v. Ellawella {supra).
This Court has to be satisfied not that the respondent said he wasguilty but that he is actually guilty. The respondent has apologisedto this Court for his default.
Cur. adv. vult.
December 12, 1946. Wijeyewardene J.—
On the application of the. Solicitor-General under section 17 of theCourts Ordinance an order has been made on the respondent, a Proctorof this Court, calling upon him to show cause why his name shouldnot be removed from the Roll of Proctors entitled to practise beforethis Court.
The respondent was appointed to the office of Kathi under the MuslimMarriage and Divorce Registration Ordinance on .April 10, 1941, aridcontinued to hold that office till December 31, 1942. On April 24, 1942,one Mawjud sent to the respondent a postal order for Rs. 10 in partpayment of mahr ordered by^the respondent as Kathi of the Kathi Courtof Maradana. to be paid to one Zurath Nazeema. The respondentcashed the postal order and appropriated the proceeds to his own use,
1 {1932) 25 O. L. W'. 87 at 88.1L. R. {1893) 2 Q. B. D. 439.
{1899) 1900 /. L. R. 24 Allahabad 49 at 53.•{1926) 29 N. L. R. 13.
(1942) 43 N. L. R. 529.*(1944) 45 N. L. R. 379.
WIJEYEWARDENE J.—In re Marxkar Mohamed.
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instead of paying the money to Zurath Nazeema. He omitted further torecord the receipt of that money in the precribed book as required bysection 21 (5) of the Ordinance.
As a result of certain investigations made by the Police on a complaintmade by the Registrar-General, case No. 44,303 was instituted in theMagistrate’s Court of Colombo against the respondent on the followingwritten report under section 148 (1) (b) of the Criminal Procedure Code: —“That he did on 25th day of April, 1942, at Maradana within thejurisdiction of this Court commit criminal breach of trust of a postalorder valued Rs. 10 belonging to M. L>. M. Mawjud of No. 40,Madawala road, Katugastota, and thereby committed an offencepunishable under section 389 of the Ceylon Penal Code.”
On September 25, the respondent who was represented by Mr. E. B.Weerakoon, Proctor, appeared on summons and pleaded not guilty.The case was then fixed for trial on November 13, and on that date itwas postponed for December 22, for want of time. On the latter datethe case was postponed for February 9, 1945, on the application of theprosecuting Inspector that a material witness for the prosecution wasabsent. On February 9, the respondent withdrew his plea of “ notguilty ” and made an unqualified admission of his guilt. Therespondent’s Proctor, Mr. Weerakoon, pleaded thereafter that the accusedbe dealt with under section 325 of the Criminal Procedure Code. Therespondent was finger printed on that day and the case was re-fixed forFebruary 13 when the Magistrate dealt with the respondent undersection 325 of the Code and ordered the respondent to enter into apersonal bond for Rs. 250 to be of good behaviour for six months andto pay Rs. 25 as expenses of this case and a further sum of Rs. 10 ascompensation to Mawjud, the sender of the postal order. .
The respondent filed for this inquiry an affidavit stating that at thetime he received the postal order he was unable to attend to his workas Kathi with his usual care, as, owing to the Japanese Air Raid, he hadto leave his Colombo residence somewhat suddenly in April, 1942, andreside some eight miles away from Colombo. He submitted that througha mistake, due mainly to the abnormal conditions at the time, he forgotto pay the proceeds of the postal order to Zurath Nazeema or to recordthe receipt of the money in his book. He stated further that he pleadedto the charge on February 13, 1945, as he was “anxious to have anend of this case ”, and that it did not occur to him at that time that his“position as a Proctor might be prejudiced ”.
Mr. Weerakoon, a leading Proctor practising in the Magistrate’s Court,Colombo, was called as a witness by the respondent and gave evidenceto the following effect: —
“ I remember his doing so (i.e., accused pleading guilty). Beforehe did so I gave him advice. I told him that he was taking a greatrisk. I told him that we were able to establish that he had nodishonesty on his part and practically he will be getting off altogetherfrom the charge of criminal breach of trust … I advised himnot to plead guilty. However, he pleaded guilty as he was anxiousio finish up the case …. I told him that a confession of48/9
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WUE YEWARDENE J.—In re Marikar Mohanted.
dishonesty was a serious matter for a Proctor …. I don’tremember exactly what and what advice I gave. I warned himagainst consequences.”
As stated earlier, the respondent says in his affidavit that he pleadedguilty, as he believed that the Magistrate would deal with him undersection 325 of the Criminal Procedure Code and he assumed that sincethe Magistrate could not proceed to conviction under that section, hedid not run any risk of being suspended or disenrolled under section 19of the Courts Ordinance. Even if he felt justified in acting on such anassumption, it is difficult to understand how, as a professional manvaluing his reputation for honesty and integrity, he could make up hismind to plead guilty to a charge of criminal breach of trust, if, in fact,he did not act dishonestly in appropriating the money for his own use.On the other hand it is equally difficult to understand how the Magistratewho recorded the plea of “ guilty ” permitted himself to make thereafterthe inconsequential statement, “ From all the circumstances in thiscase I am satisfied that the accused had no dishonest intention ”.
The respondent has been a Proctor for sixteen years. His appointmentas Kathi may be taken as showing to some extent the position he hadwon for himself as a Proctor. The ledger kept by him as Kathi showsthat he has duly recorded ten out of the eleven instalments sent byMawjud from September, 1941, to September, 1942, amounting to Rs. 125.Six of these instalments amounting to Rs. 85 were received by himbefore the postal order in question and the remaining four after that,misappropriated and failed to make a payment to Zurath Nazeema.
On a careful consideration of the various aspects of this case I havereached the decision that the respondent had most probably got intothe habit of using for his own purpose temporarily the various smallremittances he received as Kathi from the litigants of the Kathi Courtfrom time to time. He was, however, in a position to make the paymentsto those entitled to them when they demanded them, as he duly recordedin his books the remittances received by him. In this instance, however,he omitted to make the entry owing to his failure to attend daily theKathi Office, as he was living out of Colombo during that period. Owingto the absence of the relative entry he forgot the remittance of Rs. 10 hemisappropriated and failed to make a payment to Zurath Nazeema.Such a temporary misuse of the money received by him as a Kathi ishighly improper and rightly exposed him to a criminal charge. It is,therefore, necessary to make an order against the respondent to showour condemnation of his conduct, though there are circumstances whichmake it possible for us to treat him leniently.
The order of this Court is that the respondent be suspended frompractice in the office of a Proctor for a period of one month from thisdate and that a sum of Rs. 100 be paid by him as the costs of theseproceedings.
Canekeratne J.—I agree.
Nagalingam A.J.—I agree.
Proctor suspended from office for one month.