ITijera/ne v. Inspector oj Police, Fort
Present:H. N. G. Fernando, C.J.
K. G. WIJERATNE, Appellant, and INSPECTOR OF POLICE, FORT,
S. C. 31G0—J. M. C. Colombo, 3S496
Criminal law—Charge of retaining stolen property—Quantum of evidence.
In a prosecution for dishonestly retaining stolen property thcro must boproper proof of tho alleged theft and that tho accused knew that tho proportyin question u-as stolon property.
A.PPEAL from a judgment of the Joint Magistrate’s Court, Colombo.
Desmond Fernando, with Miss Suritja ]Y ickremasinghe, for the accused-appellant.
M.L. 31. Amcen, Crown Counsel, for the Attorney-General.
Cur. adv. vuit.
‘ 12 Cr. App. P. 210 at 221.
H. X. G. FERXAXDO, C.J.-—VPijcralne v. Inspector of Police, Fori
September 21, 1970. H. N. G. Fernando, C.J.—
It. appears from the evidence in this case that the C. T. B. issued to aUnion of C. T. B. workers Travel Cards authorising free travel on buses,and that the document PI was one of the cards which had been issued tothe Union. The practice regarding the use of these cards is apparentlythat, if a particular person is to be authorised to travel on the authorityof one of these cards, the President of the Union signs a note stating thatthe named person is allowed to use the Travel Card the number of whichis specified in the note, and the person is then given the card for use.
The charge in the present ease was that this accused had dishonestlyretained the Travel Card PI having reason to believe that the card wa3stolen property.
According to the evidence the accused travelled on a bus on 23rd July,1967 and M'as asked by a Checker for his ticket. The accused thereuponshowed the Travel Card PI as well as a letter P2 signed by the Presidentof the Union to the effect that the accused was authorised to use thisparticular Travel Card. Prima facie therefore the fact that the accusedhad in his possession the covering note P2 which authorised him to travelunder the Travel Card PI, sufficiently explained his possession of boththese documents.
The case for the prosecution however was that the employment of theaccused had been terminated in March 1966, and that this Travel Cardhad not been delivered on him for the purpose of the journey which hemade in August 1967. The President of the Union gave evidence to theeffect that this particular Travel Card had been lost in 1965 and that hehad informed the Staff Manager of C. T. B. of the loss. It was provedbeyond any doubt that this information had been given to tho StaffManager and that a substitute Travel Card had been issued in place of thoTravel Card which had been lost. Thus the ease for tho prosecution wasthat the lost Travel Card had been stolen by someone, and that thoaccused had somehow got possession of it after the theft and hadimproperly retained it and used it for free travel on a C. T. B. bus.
The evidence of tho President of the Union clearly justified a findingthat the accused, although lie did have in his possession the letter P2which purported to authorise him to use the Travel Card PI, had in factno authority from the President of the Union to use the Travel Card onthis particular day. But the most important element of the chargeagainst him is that he knew or had reason to believe that the Travel Cardhad been stolen before he used it. On this point there was the evidenceof the President that in 1965 he had discovered the loss of this card, andthere was documentary evidence to show that he had reported the allegedloss to the Staff Manager and that a substitute card had been issued in’place of tho one stated to bo lost. But, on the President’s own evidence,it is apparent that the Travel Cards were kept in the custody of a Clerkat the Union and that it was this Clerk who, whenever occasion arose,handed a Travel Card to a person authorised to use it. If then this
Kanagarojah v. The Queen
particular card had indeed been stolen, it was the Clerk and not thePresident who could properly testify to the fact of theft; since, as thoPresident himself stated, the Clerk had the custody of the cards, anyevidence given by anyone other than the Clerk, that the card had beenstolen, was mere hearsay. Since the Clerk was not called as a witness atthe trial, there was no proper proof of the alleged theft.
In these circumstances, the prosecution failed to prove that tho cardwhich the accused used was stolen property to his knowledge.
I accordingly allow the appeal and set aside the conviction and sentence.
K. D. WIJERATNE, Appellant and INSPECTOR OF POLICE, FORT, Respondent