M. E. A. COORAY, Appellant, and THE KING, Respondent

012-NLR-NLR-V-53-M.-E.-A.-COORAY-Appellant-and-THE-KING-Respondent.pdf


78
JVf. E. A. Cooray v, The King
[Court of Criminal Appeal]
19S1 Present : Nagalingam J. (President), Gratlaen J. and de Silva J.M.E. A. COORAY, Appellant, and THE KING, RespondentAppeal 56 with Application 117 of 1950S. C. 25—M. C., Colombo, 43,770
•Court of Criminal Appeal—Criminal breach of trust—Conviction of accused—Verdictof jury challenged on ground of uncertainty—Should sum misappropriatedhave been specified t—Several separate sums involved in charge—Joinderof offences—Power of trial Judge to put questions to jury in regard to theirverdict—Meaning of word “ agent ” in Penal Code, s. 392—Accomplice—Always a competent witness—Effect of “ quashed conviction "—CriminalProcedure Code, ss. 168 (2), 179, 247, 248—Evidence Ordinance, s. 133—Court of Criminal Appeal Ordinance, No. 23 of 1938, s. 5 (2)—Penal Code,ss. 389, 392.
The appellant was charged under section 392 of the Penal Code with com-mitting criminal breach of trust in the way of his business as an agent. Omittingirrelevant words the charge was ' ‘ that between 1st May, 1947, and 30th April,1948, you being entrusted with a sum of Bs. 155,557.93 to be deposited to thecredit of the Union (a Co-operative establishment) did commit criminal breachof trust in respect of the said sum ”. In the course of the trial the prosecutionnarrowed down the sum in respect of the charge to Bs. 94,976.93, which wasthe aggregate of not less than twenty cheques. The Jury found the appellantguilty of criminal breach of trust in respect of “ a sum of about Bs. 57,500 ”.There were numerous ways of combining the twenty cheques to arrive at thefigure of Bs. 57,500.
Held, (i) that the verdict of the Jury could not be Baid to be vague on theground that it did not specifiy the exact amount that had been misappropriated.The Jury need not have mentioned any sum at all in their verdict.
(Li) that each of the cheques could not be said to be the subject of a separateoffence. Where a charge of criminal breach of truBt has been framed in termsof section 168 (2) of the Criminal Procedure Code, the gross sum specified inthe-charge, although it is made up of different particular sums, must be regardedas relating to one single offence in respect of the aggregate sum specified andnot as constituting several charges or even one charge in respect of BeveraloffenceB.
that as the verdict was clear and unambiguous it was not competent forthe trial Judge to have asked the Jury as to how they arrived at the figure ofBs. 57,500. Neither section 248 nor section 247 of the Criminal ProcedureCode permitted such questions.
that the agent contemplated in section 392 of the Penal Code need notbe a person who carries on the business of a general agent. A casual agencycame within the scope of the section.
Held further, (a) that where the Court of Criminal Appeal quashes a convictionunder section 5 (2) of the Court of Criminal Appeal Ordinance and does not-order a new trial, the order quashing the conviction does not have the effectof leaving the proceedings yet pending against the accused person. Dharmasenav. The King (1960) 51 N. L. R. 481 considered.
(6) that an accomplice can be called by the prosecution as a witness even-while a charge is yet pending against him.
74
M. E. A. Cooray v. The King
A
PPEAL, with application for leave to appeal, against a convictionin a trial before the Supreme Court.
Dingle M. Foot, with Colvin R.- de Silva, M. M. Kumarakulasingham,K. C. de Silva, and M. L. de Silva, for the accused appellant.—
First ground of appeal:The verdict of the Jury at the retrial was
bad on the face of it. From the verdict it was impossible to say of whichoffences Cooray had been convicted and of which he had been acquitted.The verdict of the Jury was that the accused was guilty of criminalbreach of trust in respect of " a sum of about Us. 57,500 That verdictdid not constitute a proper verdict. There had never been a good trialin this case because there was no definite charge on which the accusedhad been convicted. The trial had, not been properly concluded sincethe verdict was indefinite. Although the offences are aggregated undersection 168 (2) of the Criminal Procedure Code there is still an offence inrespect of each separate cheque. Section 168 (2) is merely an exceptionto the general rule in section 179. The triaTrjudge had not distinguishedthe offences. He had asked the Jury to look at the sum total and notthe separate offences of which the total was made up—see the judgmentof Gratiaen J.. in The King v. M. E. A. Cooray *. There must be adefinite finding of a certain definite sum traced to the accused and clearlyshown to have been misappropriated. See Mohan Singh v. Emperor 2 ;Khirode Kumar Mookerjee v. Emperor 3. A contrary view is stated inEmperor v. Eyramji Jamsetji Chaewdlla * and Wazir Singh v. Emperor *,but it is not clear whether these cases dealt with a number of separate anddistinct charges or one charge. See also King v. Cooper and Compton 6.Section 168 (2) is really not ambiguous but even if it is ambiguous—in view of the conflicting Indian decisions—It is submitted that thedoubt must be resolved in favour of the accused. As regards the proprietyof the Judge putting questions to the Jury see Khirode Kumar Mookerjeev. Emperor {supra) and The King v. Albert Disney 7.
Second ground: At the first trial Bandaranayake gave evidence,appellant did not. The evidence of Bandaranayake was treated as thatof an accomplice. An accomplice should not be called as a witness unlesshe has nothing to hope or fear—see sections 283, 284 of the CriminalProcedure Code. The position in England is the same. Nothing shouldaffect the mind of an accomplice or co-accused, when he gives evidence.See Grant’s Case 8. It is clear that when a man is in jeopardy, he mustnot be. called on to give evidence for the prosecution. In the presentcase Bandaranayake £ad been called upon to repeat evidence he hadgiven when he was in peril. In effect the general rule was circumvented.Even at the second trial Bandaranayake was still in peril because noformal acquittal was entered against him at the first appeal. At thefirst trial he was charged with conspiracy to commit criminal breachof trust and with aiding and abetting Cooray to do so. He had been
1 {1950) 51 N.-L. R- 433 at p. 442.6 (1942) A. I. R. Rangoon89.
* (1920) A. J. R. Allahabad 274.8 (1947) 2 A. E. R. 701.
» 11925) A. I. R. Calcutta 260.7 (1933) 2 K. B. 138.
* (1928) A. I. R. Bombay 148.8 (1944) 30 C. A. R. 99 atp. 105.
If. E. A. Cooray v. The King
75
acquitted on the latter bufe not on the former, hr which the convictionwas only quashed. There is a distinct difference between “ acquitting ”a person and “ quashing ” a conviction. In the latter case he couldstill be tried on a fresh indictment—See the Privy Council decision inKing v. Dharmaseng *.
Third ground:The trial Judge misdirected the Jury regarding the
evidence given in connexion with the charges relating to the Piliyandaladepot. He should have asked the Jury to ignore that evidence.
Fourth ground:The trial Judge misdirected the Jury when he invited
them to consider whether the Manager had power under the Buies of theCo-operative Central Bank to give credit in the way he did. It was notthe sort of question to be put to the Jury. It was a question of law.
Fifth ground: The prosecution failed to show that the cheques, whichare the subject-matter of the charges, represented the deficiencies ofmonies of debtors. The evidence of the accountant was inadmissible.Two of the jurors with special qualifications were treated in a differentway from the others. The Jury was not directed as to which evidencewas admissible and which was not.
Sixth ground:The accused was convicted under section 392 of the
Penal Code on the basis that he was an “ agent ”. It was not suggestedthat accused was a professional agent. The Word “ agent ” in section392 must be read eiusdem generis with “ banker, merchant, factor —See The Queen v. Portugal 2 ; Queen v. Kane 3 ; Archbold, 32nd ed.,p. 6S5. A contrary view is stated in Gout’s Indian Penal Code, 5th ed.,p. 1388., but no authority is cited in support.
R.R. Cros8ette-Thambiah, K.C., Solicitor-General, with R. A. Kannan-gara and S. S. Wijesinha, Crown Counsel, for the Crown.—
First ground: A charge framed in accordance with section 168 (2)of the Criminal Procedure Code is deemed to be a charge of one offence,not of several offences. There is one offence throughout the trial upto verdict—Emperor v. Prem Narain *. As regards the duty of a Judgeto elucidate the verdict of a Jury the position in Ceylon is differentfrom that in India, as the section in the Indian Criminal Procedure Codeis different. The judgment of Mukerji J. in Khirode Kumar Mookerjeev. Emperor (supra) can therefore be distinguished. In the present casethe verdict was clear to the Judge—the accused was guilty of appropriatinga substantial part of the money. In R. v. Larkin 5 it was held thatwhere the verdict is plain and unambiguous it is most undesirable thatthe Judge should ask the Jury any further question about it. See alsoChitaley’s Indian Criminal Procedure Code, Vol. II, 1949 ed., pp.. 70,71 ; Queen v. Haii Prasad Gangooly 6 ; Derajtullah Sheikh v. Emperor 7 ;Regina v. Thomas Wright *.
Second ground: As regards the admission of Bandaranayake’s ovidence,•even if the evidence was improperly received the onus is on appellant
(1950) 51 N. L. R. 481.« (1942) 29 C. A. R. 18.
(1885) 16 Q. B. D. 487.• (1870) 14 StOh. W. R. 59 at p. 64.
(1901) 1 K. B. 472.7 (1930) 31 Cr. L. J. 1150.
(1931) A. l.B. Allahabad 267.3 169 E. R. 1070.
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M. E. A. Cooray v. The King
to show a miscarriage of justice—section 5 (1) of the Court of CriminaFAppeal Ordinance, No. 23 of 1938. As regards the meaning of the ex-pression “ miscarriage of justice ” see the judgment of Lord Macmillanin Abdul Rahim v. Emperor 1. The appellant must satisfy that therehas been'a failure of justice, that is that an innocent man has been con-victed—R. V. Haddy 2 ; Stirland v. Director of Public Prosecutions *.There is an exception to this sule when evidence of bad character has-been led. In such a case it is a fundamental wrong and beyond contro-versy. Further, in view of section 167 of the Evidence Ordinance theonus of proving failure of justice due to improper admission of evidenceis on appellant. The' English law on this point is different. It is alsosubmitted that Bandaranayake was never in peril at the second trial.
In regard to the effect of the term “ quashing ” one must consider section5 (2) of the Court of Criminal Appeal Ordinance, No. 23 of 1938. Theorder in the judgment has no place in the Ordinance and really meansin law an acquittal. As to the effect of “ quashing ” a conviction seeKing v. Emanis *. Regarding the evidence of an accomplice see Archbold,32nd ed., p. 463 for the English practice. In Ceylon sections 30 and 133of the Evidence Ordinance are applicable. See further Rex v. JJkku.Banda *; Police Vidane, Kandana, v. Amaris Appu *; Iyer v. HendrickAppu 7; Queen Empress v. Maganlal and Motilal 8; Windsor v. Rex °.
Third ground: With regard to the direction of the Judge in recpectof the evidence relating to' the Piliyandala charges it is submitted thatthere is no misdirection as the Judge in effect asked the Jury to use that -evidence only to test the other evidence when considering the mannerand intention of the accused in acting as he did in connexion with theMoratuwa funds.
Fourth ground: With regard to the ground that the Judge misdirectedwhen he said that it was for the Jury to say that giving of credit wasnecessary for the discharge 'of the Manager’s functions, the summing-upclearly shows that the Judge directed the Jury to consider the questionwhether Bandaranayake carried out a certain practice and whether theaccused knew that he had that power. The Judge directed the Jurythat is the accused openly and in good faith complied with normal pro-cedure then that would negative dishonesty.
Fifth ground: The Crown only relied on the cases covered by .chequesfor the charge in the indictment. The sole question of fact was whether-the sum stated to be misappropriated can be related to the cheques.The sales-joumal was produced in evidence. There was no evidencethat could not be tested and therefore there was no hearsay evidenceadmitted.
Sixth ground: With regard to the correct construction of section 392of the Penal Code it is submitted that the agency contemplated in thissection involves not business but a course of conduct—see Gotur's IndianPencil Code, 5th ed., p. 1388 ; Lolit Mohan Sarkar v. The Queen Empress10
» (1946) A. I. R. (P C.) 82.8 (1944) 1KB. 442.
» (1944) A. O. 315.
» (1940) 41 N. X. R. 529.
8 (1923) 24 N. X. B. 327.
8 (1923) 25 N. X. R 400.
(1932) 34 N. L. R. 330.
(1889) 1. L. R. 14 Bombay 116.• X. R. (1865) I. Q. B. 390.
10 (1894) 22 I. X. R. Calcutta 313.
NAGALINGAM J.—M. E. A. Cooray v. The King
77
and the case of Muttusamipillai The fact that, the word ‘' other ”,found in the corresponding section of the repealed English Larceny Act,is omitted in our section makes all the difference. Our section catchesup every type of agent. If on a single- occasion the accused acted asagent then he is guilty ev.en if on other occasions he did not act as agent,because section 392 of the Penal Code must be construed with section 168
of the Criminal Procedure Code. There is only one offence. Withregard to the application of eiusdem generis rule see the judgment ofLord Esher in Anderson v. Anderson x. Where the words of a statuteare clear no rule of construction is necessary. See the judgment ofViscount Simon L.C. in National Association of Local GovernmentOfficers v. Bolton Corporation 3.
Dingle M. Foot, with permission of Court.—On the first ground, itis submitted that the Court of Criminal Appeal should not enter into asurmise as to the meaning of the verdict. No one can say how the Juryarrived at the figure.
On the last ground, it is submitted that the construction of section392 of the Penal Code is concluded by authority, namely the decisionin The Queen v. Portugal (supra). An English statute and a similarColonial statute should be interpreted in the same way—see the PrivyCouncil decision in Nadarajan Chettiar v. Tenndkoon *. The omissionof the words “ or other ” and the insertion of the words “ in the wayof business ” in the Ceylon section can make no difference. The Legis-lature merely made it more clear that the section dealt with a class ofprofessional men.
Cur. adv. vult.
July 24, 1951. Nagalingam J.—
The appellant was convicted by the unanimous verdict of the Juryof the offence of criminal breach of trust and has been sentenced to undergoa term of five years’ rigorous imprisonment.
The material facts lie within a narrow compass. The prisoner was thePresident of a Co-operative establishment, the Salpiti Korale Union,the activities of which consisted in the main of supplying controlledconsumer goods to various retail stores within the area of its operationthrough three wholesale depots established by it at Moratuwa, Piliyan-dala and Polgasowita. Each of the depots was controlled by a regionalor local committee of the Union, and for the purposes of the appeal it isonly necessary to note that the appellant was also President of the Moratuwaregional committee. The Salpiti Korale Union had credit facilities ex-tended to it by the Co-operative Central Bank, of which the Union wastended to it by the Co-operative Central Bank, of which the Union wasThe appellant held an important position in the Co-operative CentralBank ; he was a director as well as a Vice-President of it. 1
1 (1895) 1. Weir 432.
* L. B. (1895) 1 Q. B. D. 749.
» L. B. (1943) A. C. 166.
* (1950) 51 N. L. K. 491.
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NAGALINGAM J.—M. E. A. Cooray v. The King
The course of business prescribed by the Union to be followed by theofficers at its various depots in regard to the collections at the depotswas for the collections to be deposited promptly at the Co-operativeCentral Bank. And with a view to prevent temptation being placedin the way of the officers at the depots who would of necessity have tohandle large sums of cash if ordinary business practice was followed,it was expressly provided that cash in excess of Rs. 100 was not to beaccepted at the depots, but that the retail stores were to make paymentsat the depots either by means of cheques or money orders.
At the relevant period the witness Ranatunga was the manager of theMoratuwa depot and the brother of the prisoner, Leo Cooray, of thePiliyandala depot. As the Polgasowita depot transactions have nobearing on this case, no reference is made to it.
The appellant as President of the regional committee at Moratuwait was who gave charge of the Moratuwa depot to the Manager, Ranatunga,on appointment and Ranatunga appears to have followed strictly atfirst the instructions given to him with regard to the nature of paymenthe could accept for sales, namely, only cheques or money orders subjectto the exception noticed above. It would, however, appear that afterthe lapse of a little time the appellant instructed Ranatunga to collectlarge sums of cash, the amount of which was fixed sometimes by the appel-lant sending to Ranatunga one of his own cheques the amount on whichwould be an indication as to the amount to be collected in cash and onother occasions mere oral instructions would be issued by the appellantto Ranatunga to collect cash during the day and at the end of the daythe appellant would give a cheque of his own in lieu of the cash he took 'over from Ranatunga. Ranatunga following the usual practice wouldenter in the paying-in slips to the Bank the particulars of the chequeshe had received including those from the appellant. The appellant moreoften than not took from Ranatunga the paying-in slips and the chequesincluding his own cheques for the purpose of depositing them at theCo-operative Central Bank, and in fact did deposit them. On one ortwo occasions the appellant himself wrote or caused to be written thepaying-in slips that were handed at the Bank with his cheques.
— The Co-operative Central Bank had an account with the Bank of Ceylonto which it sent all the cheques received by it – for collection. The appel-lant using his official position as Vice-President of the Bank contrivedto have his cheques that he deposited to the credit of the Union at theCo-operative Central Bank to be withheld by the Manager of the latterbank from presentation at the Bank of Ceylon. In the case ’of someof the cheques no presentation had been made for several months. ThePresident of the Co-operative Central Bank some time later on discoveringthat the Co-operative Central Bank had to pay to the Bank of Ceylonlarge sums by way of interest on its overdraft account started investi-gations and ascertained that several cheques of the appellant, in factno less than over thirty in number, had been withheld from presentationfor several months. The President reported this state of affairs to theRegistrar of the Co-operative Societies and the law was thereafter setin motion and resulted in this prosecution being launched against theappellant.
NAGAMNGAM J.—M. E. A. Cooray t>. The King79
In regard to the transaction at the Piliyandala depot, as the evidenceof Leo Cooray, the brother of the appellant, did not sustain the charge ofcriminal breach of trust the Crown did not pursue the charge in respeotof the sums alleged to have been misappropriated out of the funds collectedat the Piliyandala depot but in regard to which too there was evidencethat certain cheques of the appellant had been deposited to the creditof the Union in settlement of those collections.
There was both oral and documentary testimony placed at the trialestablishing a prima facie case against the appellant, but he neither gaveevidence himself nor called any witnesses on his behalf.
Several grounds of objection against the conviction and sentence wereformulated in the petition of appeal but at the’hearing Mr. Foot appearingfor the appellant confined his submissions to five of them and abandonedthe others. I shall deal with these objections in the order in which theywere presented by Mr. Foot.
The first point taken was that the verdict of the Jury was void for uncer-tainty or bad for vagueness. This objection is based on the circumstance •that while in the indictment the prisoner was charged with having com-mitted criminal breach of trust of a sum of Rs. 155,576/93, and whilethe prosecution during the course of trial narrowed down the sum in res-pect of the charge to Rs. 94,976/93, being the amount committed criminalbreach of trust of by the appellant out of the funds of the Moratuwadepot, having abandoned the sum in respect of the Piliyandala depot,the Jury found the prisoner guilty of criminal breach of trust in respect of" a sum of about Rs. 57,500
In the first place it is contended that the verdict does not specify anexact amount but refers to an indeterminate amount by qualifying thefigure 57,500 by applying the word of uncertainty “ aboutto it and forthat reason the verdict is bad in the first instance. Mr. Foot howeverdid not argue, probably because of the manner in which the objectionhad been formulated in the petition of appeal, that the learned trialJudge’s direction to the Jury:
*
“ If you can find after your examination of the whole'of the evidencethat he did commit criminal breach of trust or did dishonestly mis-appropriate, not the entire sum alleged by the Crown to have beenmisappropriated but some lesser sum, if that fact is proved to youbeyond reasonable doubt, then even though you may not be able toanswer with any degree of accuracy the precise sum, but having madeevery allowance to the) accused you still are convinced that he haddishonestly misappropriated a portion of the sum alleged in the indict-ment, then he would be -guilty ’ ’
or again:
“ Once again I may say, it does not seem to me that it is very impor-tant to determine what is the precise figure which went into his hands,or if he did appropriate any money, what was. appropriated by him
constitutes a misdirection. But if his argument founded on the inexact-ness of the figure found by the Jury to have been the subject of the offence11 – N. L. R. Vo!. – Liii
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NAGALINGAM J.—M. E. A. Cooray «. The King
is sound, it must follow that as the Jury had brought in a verdict inaccordance with the direction given by the learned trial Judge, thedirection of the learned trial Judge amounted to a misdirectionin law.
We think the direction of the learned trial Judge on this point wasin conformity with law and the verdict of the Jury cannot be said to bevague on the ground that the verdict does not embody a precisely exactfigure as the sum that has been misappropriated.
In England, the proposition was laid down as early as 1858 in Regina v.Thomas Wright 1 by no less than five Judges including Judges of theeminence of Lord Campbell C.J. and Coleridge J. that a verdict of theJury that the prisoner “ stole some money ” but without specifying theamount was a good verdict. Mr. Foot however relied upon the Indiancase of Khirode Kumar Mookerjee v. King Emperor 3 where no doubtMukerji J. in delivering the judgment of the Court in respect of a chargeof criminal breach of trust, observed:
There must therefore be a definite finding of a certain definite sumtraced to the accused in order to form a basis for his conviction. "
Mr. Foot also drew our attention to a later Bombay case, Emperor v.Byramji Jamsetji Chevalla 3 where this view was not upheld, but on thecontrary it was said by Fawcett J. that:
“ if the evidence is sufficient as to establish that at any rate someproperty such as money has been misappropriated it seems to me thatit is against reason and authority to say that because you cannotspecify the exact amount that has been misappropriated the acousedcannot be convicted.
We find ourselves in agreement with the view expressed in the Bombaycase and we hold that a verdit which is specific and definite that theoffence has been committed in respect of some sum of money, thoughthat sum may not be ascertained with exactness, is a proper and validverdict—and is not open to the objection that it is vague and thereforebad. We are further of opinion that the Jury need not have returned afinding as to what the sum was which in their opinion had been com-mitted criminal breach of trust of but a verdict that they found theprisoner guilty was all that was called for.
In the second place Mr. Foot argued that ignoring the presence of theword “ about ” the finding that the prisoner had committed criminalbreach of trust of Us. 57,500 is vague inasmuch as there were not lessthan twenty cheques that constituted the aggregate sum of Rs. 94,976/93of which the sum of Rs. 57,500 formed part and that there were accordingto Mr. Foot not less than 1,778 ways of combining the twenty cheques toarrive at the figure of Rs. -57,500, and as each of the cheques was thesubject of a separate offence the prisoner is. now left in doubt as regardsthe particular offences in respect of which he Has been found guilty'and of which he has been acquitted.
* A. I. R. 1925 Cal. 260.
A. l.R. 1928 Bom. 148.
3 1C9 E. R. 1070.
N AG-AUN GAM J.—M. E. A. Cooray e. The King
81
The foundation on which this argument was raised is the judgmentof this Court in this very case when it came up on the prisoner's conviction-at the first trial. The passage relied upon is to be found in the reportof the case 1 and is as follows: —
“’Whether or not criminal breach of trust of sums amounting toRs. 161,576.93 'was alleged to have been committed in pursuance ofa single design (as the prosecution suggests) the fact remains that thecharge against the accused according to the evidence involves thealleged commission not of one offence of criminal breach of trust butof a number of such offences during the period covered by the indictment.To include all. these offences in a single count was of course permissibleunder section 168 (2) of the Criminal Procedure Code. It was essentialhowever that the Jury’s attention should have been directed to thespecific evidence on which the Crown alleged that each separate offencehad been committed. ”
I have italicized the words on which special emphasis was laid byMr. Foot. No doubt this passage lends itself to the comment that theprisoner was called upon to meet a charge not of one offence but of severaloffences. But this passage occurs in a part of the judgment whichstresses the need in this particular case for a clear direction to the Juryin regard to the items that went to make up the aggregate sum of whichthe prisoner was alleged to have committed misappropriation. Mybrother Gratiaen delivered the judgment with which my brother Guna-sekara, who it may be mentioned is the present trial Judge, agreed. Guna-sekara J. does not appear to have understood the judgment in the wayin which it has been construed by Mr. Foot. My brother Gratiaen saysthat he himself did not intend that the passage should be so construed. .
We need only observe that where a charge has been framed in accor-dance with section 168 (2) of the Criminal Procedure Code in respect ofeither the offence of Criminal Breach of Trust or Criminal Misappropria-tion by specifying the gross sum misappropriated and though the pro-secution may be able—though not necessarily in all cases—to establishthe gross sum as having been made up of particular sums yet the chargemust be regarded as relating to one single offence in respect of the aggre-gate sum specified and not to constitute several charges or even onecharge in respect of several offences, the number of which would bedetermined by the fortuitous controlling factor of the adaptability ofthe aggregated sum to be disintegrated into smaller specific sums. –
Apart from the authority relied upon the proposition would seem tobe wholly untenable. It would be useful- at this stage to examine theterms of the charge. Omitting words irrelevant for present purposes,the charge runs:
“ That between 1st May, 1947, and 30th April, 1948, you beingentrusted with a sum of Es. 155,557.93 to be deposited to the creditof the union did commit criminal breach of trust in respect of the saidsum. ”
1 (1950) 51 N.L. B. 433 at 442.
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NAGALINGAM J.—»V. E. A. Cooray v. The King
The ordinary rule in regard to the joinder of charges is laid down in section179 of the Criminal Procedure Code, which permits of not more thanthree offences of the same kind committed within the space of twelvemonths to be included in one indictment, but to this there is an exceptioncreated by section 168 (2). The exception is confined in its operationt,o two classes of offences, (1) criminal breach of trust, (2) criminal mis-appropriation, and also postulates a period of time not exceeding oneyear. Subject to these limitations, the effect' of the sub-section, is thatwhere, to take one of the offences, for the sake of simplicity, it is allegedthat several sums of money had been criminally misappropriated onvarious dates, it would be competent to aggregate the several sums ofmoney misappropriated within the space of one year and to charge theaccused person with having committed the offence of criminal misappro-priation in respect of that aggregate sum of money without specifyingthe particular items or the particular dates on which the amounts mayhave been misappropriated, and the sub-section specifically enactsthat a charge so framed is to be deemed a charge of one offence. Wedo not think that the words “ within the meaning of section 179 ” whichfollow the words “ shall be deemed to be a charge of one offence ” haveany other effect than that of emphasizing that though what in realityamounts to a number of offences exceeding three have been aggregatedtogether it shall nevertheless not be open. to the objection that suchan aggregation offends' against the provisions of section 179 which, asstated earlier, permits of not more than three separate offences to beincluded in the same charge.
The charge being then of one offence, it is idle to speak of the convictionof the prisoner on some offences and of his being acquitted on others.In fact the jurors, were called upon to try the prisoner upon only onecharge and that was in respect of one offence alleged to have been com-mitted by the accused person in that he committed criminal breach oftrust of one sum of money between specified dates. In truth the Jurywere not and could not have been required to give their verdict on thefooting that they were trying a number of offences but they were quiteproperly invited to and did give their verdict in respect of the one offencewith which the prisoner had been charged. They were therefore rightlycalled upon to find by their verdict whether the prisoner was guilty ornot guilty of the one single offence with which the prisoner was charged.The Jury certainly were never called upon to try several offences againstthe accused, much less to bring verdicts in respect of several charges orseveral offences against the prisoner. It would therefore be incorrectin these circumstances to speak of any uncertainty in the verdict as regardsthe offence of which the prisoner was found guilty.
In regard to the contention that the learned trial Judge should haveasked the Jury as to how they arrived at the figure of Rs. 57,500 I needonly say that such a course would have been entirely outside the provinceof the Judge, for such a question would seek to ascertain the groundor grounds upon which the jurors came to arrive at their verdict.According to the majority of us it is conceivable, though we do not sayit must be so in this case, that the Jurors themselves may each have
N AG ALIN GAM J.—M. E. A. Cooray e. The King83
differed widely in regard to the quantum which in their individual opinionhad been misappropriated by .the prisoner but they may all have agreed,arriving by different methods, that at the lowest a sum of about Rs. 57,500had been misappropriated by the appellant. On this basis they mayall therefore have agreed upon their verdict. Section 248 of the CriminalProcedure Code confers and limits the powers of a Judge to question aJury in regard to its verdict and provides that a Judge is only empoweredto ask the Jury such questions as may be necessary to ascertain whattheir verdict is. So that where the verdict is clear and unambiguoussuch as it is in this case, no occasion arises for a Judge to put any questionto the Jurors in regard to the verdict, and if he did so he would run therisk of subjecting such procedure to well founded criticism of an adversecharacter. See the cases of Larkin 1 and Daragtulla Sheik 2.
Section 247 of the Criminal Procedure Code expressly provides thenature of the question which the Registrar of the Court should ask theForeman of the Jury in regard to their cerdict: “ Do you find the accusedperson (naming him) guilty or not guilty of the offence (naming it) withwhich he is charged? ”. The verdict should therefore be one of guilty or notguilty. It need not have been qualified by the addition of the amount whichin the opinion of the Jury had been the subject of criminal breach oftrust by the prisoner. These added words relating to the amount may,if need be, according to the majority of us, be treated as mere surplusageand ignored, because the verdict is not rendered uncertain or vague bythe addition of those words and the verdict that the prisoner is guilty isclear and precise without their addition. These observations of ourshowever have no reference to the undoubted right that a Judge has toquestion a Jury with a view to assess the appropriate sentence that heshould pass on a prisoner.
We are, however, unanimously of opinion that the verdict is one towhich no justifiable exception can be taken.
The next objection taken is to the admissibility of the evidence of thewitness Bandaranayake who was the Manager of the Co-operative CentralBank at the relevant dates. In the petition of appeal it is categoricallystated that Bandaranayake was not a competent witness. The reasonfor putting forward this objection is that Bandaranayake was admittedlyan accomplice. He was one who stood his trial along with the appellantat the earlier trial in this case and his- conviction was quashed by thisCourt on appeal. Under our law an accomplice is not an incompetentwitness. Section 133 of the Evidence Ordinance expressly providesfor the reception of the evidence of an accomplice and it goes on to providethat a conviction is not illegal merely because it proceeds upon theuncorroborated testimony of an accomplice.
Mr. Foot however adopted another line of argument based upon whathe said was the English practice. He laid down the proposition ratherwidely when he said- that an accomplice would not under English pro-cedure be permitted to testify against a prisoner unless the accomplicehad either been acquitted formally or had been convicted or had received
1 (1942) 29 O. A. R. 18
* Criminal Law Journal of India 1930, p. 1150.
84
NAGAL.IXGAM J.—Af. JE. A. Cooray v. The King
pardon. He then stressed that where a charge was yet pending againstan accomplice he would not be permitted under the English law to becalled by the prosecution as a witness as the adoption of such a course-would be regarded as unfair by an accused person in as much as it wouldcause unjusitfiable prejudice to an accused person.
Archbold in his well known work on criminal law deals with the topicsraised and lays down proposition which do not entirely support thecontention of Mr. Foot. The learned author says 1 that an accomplice isalways a competent witness. No words of qualification are added. This,it will be observed, is in accordance with the provision under our lawArchbold * goes on to consider the circumstances in which one prisonermay give evidence for the Crown against a co-prisoner. He does notsay that one accused person is not a competent witness against anotherbut he expressly lays down that where two prisoners are jointly indictedand one prisoner is not being tried with the prisoner against whom he givesevidence, his evidence is receivable without objection and he cites Windsorv. Rex 3. The case of Grant et al. * also adopts this view.
But in fact there is no ground for saying in this case that any proceed-ings are yet pending against Bandaranayake. He has been acquittedby the order of this Court but the contrary is asserted on behalf of theappellant.
Mr. Foot proceeding on the basis that the conviction against Bandara-nayake at the last trial had only been quashed and that this Court hadmade no further order acquitting him, built up his whole argument.Bandaranayake was put on his trial along with the appellant upon twocounts, (1) conspiracy, and (2) abetment of the appellant in committingthe offence of criminal breach of trust. In regard to the second countthis Court expressly made order acquitting the accused 5. In regardto the first count the order of this Court was “ we quash the convictiontc both accused on the charge of conspiracy ”. Mr. Foot says that asthis Court did not in terms.of section 5 (2) of the Court of Criminal AppealOrdinance, 23 of 1938, direct a judgment of acquittal to be entered inrespect of this charge it could not be said that the,charge against Bandara-nayake in regard to the offence of conspiracy has resulted in an acquittaland relies upon the judgment of Lord Porter in King v. Dharmasena *where the following observation is made:
“ A quashed conviction however does not acquit the appellant of
the crime charged. It merely makes the previous conviction abortive.
If it is intended to direct a judgment of acquittal to be entered it must
be done in terms. ”
I do not think that Mr. Foot’s reading of this passage is right. Theargument there was that as this Court had quashed the conviction anddirected a retrial and as the quashing of a conviction involved an acquittalin view of section 5 (2), the order of retrial was bad. It is in referenceto this argument that it was abserved that where it is intended to directjudgment of acquittal to be- entered against an accused, it must be done
1949 ed. p. 461.* 30 C. A. It. 99 at 105.
Page 466.8 [1950) 51 N. L. It. 433 at 441.
L.R. 1 Q. B. 390.• (1950) 51 N. L. B. 481.
NAGAXiINGAM J.—M. E. A. Cooray v. The King
85
in terms but that it did not follow that a retrial could not be orderedwhere a conviction had been quashed. The Ordinance although itrecognises that a retrial may be ordered on appeal does not expresslyprovide the precise form in which that order should be made. In factit is silent as to what operative words should be employed with regard to-the previous conviction where a retrial is ordered.
Would it be proper to direct a retrial without making any specificorder with regard to the previous conviction ? Such a course wouldhardly appear to be right, for it would be open to the objection that theprevious conviction stands and that such conviction so long as it standsunreversed would be a bar to the further trial. On the other hand ifthe phraseology that the conviction is quashed cannot be employed forthe reason that that phrase is only applicable in terms of section 5 (2) tocases where this Court directs the acquittal of an appellant, some otherformula should be found to indicate that .the previous conviction hasbeen got out of the way as a preliminary to a retrial being ordered.Counsel could not suggest any better formula and I could not think ofany that the court might say that the conviction is set aside and that theCourt orders a new trial. But by a quashing of a conviction is meantnothing more nor less than the setting aside of it. The only merit, there-fore, in using the words “ the conviction is set aside ” seems to be thatit avoids the use of the phrase “ quash the conviction ” to which Mr. Footquite needlessly attaches the notion of the sequel of an acquittal.
K.v. Dharmasena 1 is certainly not an authority for the propositionthat where this Court quashes a conviction and does not order a new trialthe order quashing the conviction operates to leave the proceedings yetpending against the accused person.
Both on the law and on the fact we are satisfied that not only werethere no charges pending against Bandaranayake but that he was acompetent witness though an accomplice and that his evidence wasproperly received at the trial.
The next ground of appeal is that the learned trial Judge failed todirect the Jury that the evidence given in regard to the PiliyandalaDepot and which was favourable to the accused should be consideredin arriving at a decision in regard to the guilt of the accused in regard tothe transactions at the Moratuwa Depot. The passage in the summing-up that is complained of is at page 50 of the typescript but it does notappear to us that the passage admits of this comment. In fact in thenext two pages (51 and 52) the learned trial Judge has made it quiteclear and indicated to .the Jury that in considering their verdict in regard,to the Moratuwa Depot they should take into consideration the evidenceparticularly of Leo Cooray and the evidence of other witnesses in orderto .determine to what extent the evidence of these witnesses affects theevidence led in respect of the Moratuwa depot so as to create in theirminds doubts as regards the alleged commission by the accused of theoffence in regard to the Moratuwa funds. This ground we therefore deemto be of no substance.
* {1950) 51 N.L. B. 481.
80NAGALJNGAM J.—M. E. A. Cooray v. The King
Like the last, the fourth ground is also one that relates to the proprietyof the charge. It is said that in regard to the question of dishonestintention the learned trial Judge was in error in directing the Jury thatthe question for them to consider was whether in terms of the Buies ofthe Co-operative Central Bank the power exercised by the Manager ofgiving credit, to the extent that it was given, was necessary lor the per-formance of the Manager's functions but that the proper direction was forthe Juiy to have been asked to decide whether the Manager did in fact,exercise the powers following the practice in the Bank in the belief thatit was the proper practice. While it is true that at pages 106 to 111 of thetypccript the learned Judge has invited the Jury to consider whetherthe Manager had power under the Buies to give credit in the way hedid, at pages 112 to 113 he has also referred to the question whether theaccused believed that the Manager did have such powers. It is onlynecessary to draw attention to the following excerpt from the summing-up (page 112 et seq.) : —
“ If you find there was a breach of duty then of course so far as theamount goes it is immaterial except to this extent that when youcome to consider whether the accused may have honestly believed that thatpower had been given to Bandaranayake, whether from what he sawgr.ing on round him, as Counsel for the defence said, he may havehonestly thought Bandaranayake had been given that power under theconstitution of the Bank …. That it to say you have to askyourselves whether the Crown has explained the possibility and■having regard to what the accused saw going on in the Bank even ifit was unlawful in the sense .that it was contrary to the contract betweenthe Manager and the Bank, even if what the accused saw was contrarylo the contract, having regard also to what he saw going on in the Bank,that the Manager was acting in accordance with the contract exercisingno more power than was given to him by the terms of the contract.
We think that the attention of the Jury had sufficiently well heendrawn to the possibility of the prisoner having entertained in his mindthe belief that, whatever may have been the rules- governing the pointthe Manager, Bandaranayake, had the necessary authority to grant creditas he was shown to have done. This point therefore fails.
The last ground of objection is tha.t as there was no evidence thatthe prisoner was at any time engaged in business as an agent the con-viction under Section 392 of the Penal Code was bad but that at bestthe conviction should have been under Section 389.
The latter section provides the punishment for the offence of criminalbreach of trust in what may be described as its unaggravated form andprescribes a maximum penalty of 3 years' rigorous imprisonment apartfrom a fine. Section 392 prescribes a maximum’ penalty of 10 yearsapart from the fine when the offender commits the offence " in his capacityof a public servant or in the way of his business as a banker, merchant,factor, broker, attorney, or agent
Mr. Foot contends that the term “ agent ” must be interpreted inaccordance with the rule of eiuderrv generis and that so interpreted the
NAGALINGAM J.—M. E. A. Cooray v. The King
87
term “ agent ” must be deemed to mean a person Who carries on businessas an agent, i.e., one who holds himself put as being able and willing tocarry on the business of an agent inasmuch as the words that precede it,namely, banker, merchant, factor, broker, attorney, all refer to classesof persons who carry on particular avocations. I think there can belittle doubt that- the terms ‘‘ banker " and " merchant ” must necessarilyrefer to persons who carry on a regular calling in these special vocations.It would not be possible to regard a person who acts on one occasion forone particular client in regard to any dealings that are commonly per-formed by a banker or merchant, and to treat such person as a bankeror merchant but in regard to the other categories of persons fallingunder the designations of factor, broker or attpmey, it is possible toconceive of and in fact there are many instances where a person acts foranother individual in any of those capacities and that too on an onlyoccasion.
In the case of Lowther v. Harris 1 a question under the Factors Actarose as to whether a person acting for one principal only and who had nogeneral occupation as agent could be said to be a factor within the mean-ing of the Act and. Wright J. had no difficulty in answering this questionin the affirmative. One transaction may be sufficient, again, to consti-tute a person a broker and there seems to be no justification for confiningthe term to a person who carries on the occupation of a broker over along period of years and in relation to a number of persons. Similarly“ attorney ” need not necessarily be a term that need be applicable tothe class of persons known to English Law as attorneys at law, but cer-tainly is wide enough and is recognised as a term which refers under ourlaw to a person wh; holds a power of attorney.
Mr. Foot’s argument was that not only should the terms ** factor "and “ broker ” be restricted to persons who carry on business in a generalway as factors and brokers but that the term “ attorney .” had to beinterpreted so as to give it the special meaning of attorney at law, theterm applied to the class of legal practitioners who went under that namein England prior to 1873. The cases of Queen v. Portugal 2 and Queen v.Kane 3 were cited by him to reinforce his argument that the fiiusderngeneris rule of construction should be applied. It is true that underth6 now repealed English Larceny Act a similar collocation of words was soconstrued but there is a very significant variation between the provisionof the Larceny Act and our section. The words grouped together inthe Larceny Act are, *' banker, merchant, factor, broker, attorney orother agent ” while in our section, it will be noticed the term “ other ”is significantly omitted. The majority of us have grave doubts thathad the word “ other ” been omitted from the English Statute, theconstruction would yet have been the same.
Mr. Foot also put forward a further argument based upon emphasisbeing laid upon the words, “ in the way of his business ”. Now, theterm, “ in the way of his business ” has been construed by him as theequivalent of “in carrying on the business of ” and not as the
» {1927) 1 K. B. 393.* (1885) 16 Q. B. D. 487.
11901) 1 K. B. 472.
88
NAGAUNGAM J.—U. B. A. Cooray o. The King
equivalent of “ in the way of his function ” or “in the course of actingas “ or even “ in the capacity of To take a simple illustration, if aman is granted a special power of attorney to sell the land of his principaland remit the proceeds and the attorney sells the land but misappropriatesthe funds, would it not be correct to say that the attorney had been en-trusted with the funds in the way of his business as attorney, that is to say,in the course of the performance of his business as attorney? Mr. Foot’sanswer is that the attorney has not received monies in the way of hisbusiness for the attorney did not carry on a business of a general attorneyand a casual acting did not constitute him such within the meaning ofthe section. We do not think that the construction contended for byMr. Foot is a sound one. We see no reason to hold that the phrase,in the way of his business ’’ was intended by the legislature to mean“in carrying on the business’’ which it might have used if that was the objectso as to exclude from the operation of this penal section a case of a brokeror attorney who may commit criminal breach of .trust of very largeassets entrusted to him from being subjected to the same severe penaltyto which a person carrying on a regular business may be subjected.
This section has always been construed as applying to all agents ex-cepting to those agents specifically enumerated in Sections 390, 391, and392. In India too the same view has been taken. Gour 1 commentingon the corresponding section expressly refers to a case such as the presentone :
“ If a person requests another to carry a sum of money for paymentto another, he is for that purpose his agent so that should he misappro-priate the amount he would be liable under this section.
It is true he cites no authority for this statement but his view is supportedby the case of Muttusamipillai. 2 That was the case where the prisonerwas certainly not carrying on the business of a general agent but neverthe-less he was held .to have committed the offence as an agent, as it was heldthat he had misappropriated the articles belonging to a temple whileacting as manager of the temple.
Another aspect of this question was lightly touched upon, and that was,assuming that a casual agency came, within the scope of the section,whether in the particular ease before us it could be said: who was theprincipal? It is common ground that it was the appellant who appointedRanatunge manager of the Moratuwa Depot. It was equally commonground that it was he who gave instructions in regard to his functionsand duties including those relating to the Manager’s deposit of theproceeds of sale realised at the depot. It is therefore said that Ranatungecannot be regarded as the principal of the prisoner. The majority ofus think that there is a fallacy underlying this contention. In thefirst place the notion of a superior or an inferior officer is entirely foreignto the question of agency. The question really is:What is the legai
relationship between the parties ? Not, What is .their status inter se ?If Ranatunge who had to bank the proceeds of sale handed the fundsto the prisoner to be deposited in the bank and the prisoner undertook
1 6th ed. p. 1388, Sec. 4870
• 1 Weir 432.
Suppiak v. Situnayake
89
to carry and deposijb the funds, the relationship of principal and agent wasthereby constituted, it being immaterial as to whether one was themanager of the depot and the other the President of the Union that ranthe depot. Nor do the majority of us think there is any substance in thecontention that it was the prisoner who volunteered to carry the fundsfor deposits. It is important to remember that the prisoner could nothave compelled payment of the money to him. The money belonged to-the Union and that money had to be deposited to the credit of the Unionand that was the instruction to Hanatunge by the prisoner himself.
The majority of us are of opinion that the last ground too is of no availand the application refused.
In the result, the order of the Court is that the appeal is dismissed,,and the application refused.
Appeal dismissed.Application refused.