ABRAHAMS C.J.—Kalyanaratne v. Gunadasa.
1937Present: Abrahams CJ.
KALYANARATNE v. GUNADASA.
581—P. C. Colombo, 2,700.
Criminal breach of trust—Property held by accused in trust for his master—
Penal Code s. 388.
Where a promissory note was made in favour of the accused for theconvenience of his employer who lent the money, and the accused mis-appropriated money paid to him- by the maker of the note to liquidatethe debt,—
Held, the accused was guilty of criminal breach of trust.
King v. Perera (.Times of Ceylon L. R. 72.). followed.
A PPEAL from a conviction by the Police Magistrate of Colombo.
R. C. Fonseka (with him S. W. Jayasuriya), for accused, appellant.
R. G. C. Pereira, for complainant, respondent.
Cur. adv. vult.
October 5, 1937. Abrahams C.J.—
This is a somewhat unusual case and has been argued with commendableability. The appellant was convicted of criminal breach of trust of Rs. 5which he had obtained in the following circumstances.: —
One T. D. Gunadasa was arrested by civil process for. a sum ofRs. 237.50. From jail he requested assistance of the complainant whosent his employee the appellant to the jail with the money to dischargeGunadasa’s liabilities. Gunadasa then went to the complainant’sboutique and by arrangement signed a promissory note in favour of theappellant. The complainant stated that this was done because he was abusy man and the appellant transacted all his business.
Action was taken on this note and Gunadasa agreed to pay the amountin instalments of Rs. 15 per mensem. He stated that the appellant cameto him and asked f6r an instalment whereupon he gave him Rs. 5.
It is submitted on behalf of the appellant that his liability is civil onlysince he received the Rs. 5, if he did receive it, by virtue of the promissorynote which was made out to him, and that Gunadasa was liable in law todischarge his obligation to the appellant, and the appellant only, who thusreceived the money in his own legal right. But I think the terms ofsection 388 of the Penal Code are sufficiently wide to cover a case of thiskind, and illustration (a) to that section certainly indicates one instancewhere the legal owner of property can commit criminal breach of trust inrespect of it. If that were not so, many cases of misappropriation byservants and agents of the property for which they are bound to accountto their employers would go unpunished. This case does in fact bear asufficiency of resemblance to the .King v. Perera where Jayewardene A. J.upheld the conviction for criminal breach of trust of a salesman whomisappropriated cheques made out in his own name by purchasers of hisemployer’s goods.
It has also been argued for the appellant.that the judgment containedno specific finding that he misappropriated the Rs. 5, in fact there is not
* 2 Times of Ceylon L. R. 72.
SOERTSZ J.—Samarasundera v. Samarasundera.
■even any mention that he obtained the money? It is pointed out that,the learned Magistrate stated that “ the only point is to determine-whether the money lent to Gunadasa belonged to the complainant or tothe accused”. The only defence raised by the appellant was that it washe who actually lent the money. He did not deny that he obtained theRs. 5, so that it may be implied from the absence of a defence on thismaterial point and the learned Magistrate’s concluding word? in hisjudgment to the effect that the appellant having been dismissed by thecomplainant is trying to take advantage of the fact that the note is in his.favour and dishonestly recover money really due to the complainant,that the learned Magistrate accepted Gunadasa’s evidence that the Rs. 5had been actually obtained. At the same time, as I have said beforea Magistrate in writing his judgment ought to be careful to find specific-ally on every fact in issue. Omission to do so gives scope for objectionsto the judgment and leads to the time of this Court being unnecessarilyoccupied.
I dismiss the appeal.
KALYANARATNE v. GUNADASA