T. S. FERN AND O, J.—Mohamed Ali v. Seneviratne
1963Present: T. S. Fernando, J.M. S. MOHAMED ALI, Appellant, and A. M. SENEVIRATNE(Inspector of Police, C. I. ,D.), Respondent
8. C. 328 of 1963—J. M. C. Colombo, 23922
Exchange Control Act—Section 7 (a)—“ Payment to or for the credit of a person-resident outside Ceylon
A company in Japan owed a company in Ceylon a sum of £203.14s.2d. asagents’ commission. Upon the instructions of the appellant, the company inCeylon requested the company in Japan to pay this sum to the appellant’s sonin England. The Japanese company complied -with the request. Thereafterthe appellant paid to the Ceylon company a sum of Rs. 2,754, which was the-equivalent in rupees of £203.14s.2d.
Held, that the appellant was not guilty of “ making any payment to or forthe credit of a person outside Ceylon ” within the meaning of section 7 (a) ofthe Exchange Control Act.
A.PPEAL from a judgment of the Joint Magistrate’s Court, Colombo-8. Nadesan, Q.C., with G. D. Welcome, for the accused-appellant.
W.K. Premaratne, Crown Counsel, for the Attorney-General.
Cur. adv. vult..
August 26, 1963. T. S. Febnando, J.—
The appellant was convicted by the Magistrate on a charge framed asfollows :—
“ That he did at Colombo on or about 20tb July 1961, without thepermission of the Central Bank of Ceylon, make a payment of Rs. 2,754to M. K Saldin & Co., Ltd. to or for the credit of one M. A. Abubacker,a person resident outside Ceylon, to wit, England, in contravention of"the provisions of section 7(a) of the Exchange Control Act, and that he isthereby guilty of an offence under section 51 (1), punishable under-section 54 (4) of the said Act. ”
The proved facts were that the appellant has a son Abubacker who is astudent following a course of instruction in engineering in England. Forhis son’s maintenance in England the appellant had to remit money to-him. Failing to obtain the necessary permission from the Central Bank-of Ceylon to so remit money, the appellant approached a friend who is adirector of a company in Ceylon which had business connections with acompany in Japan. The appellant sought his friend’s assistance to-ensure that his son may receive a sum of £203.14s.2d. The company-in Ceylon had to receive as agents’ commission this sum of £203.14s. 2d
T. S. FERNANDO, J.—Mohamed Ali v. Seneviratne
from the company in Japan. The director of the company in Ceylonrequested the company in Japan to pay this slim to the appellant’s sonin England. The Japanese company complied with the request, and it isnot disputed that Abubacker received this money in England. There-after the appellant paid to the Ceylon company a sum of Rs. 2,754 whichis said to be the equivalent in rupees of £203.14s 2d.
Counsel for the appellant argues that the contravention of section 7 (a)of the Exchange Control Act (Cap. 423) has not been established.
The material part of section 7 of the said Act reads as follows :—
“ Except with the permission of the bank no person shall in Ceylon—
make any payment to cr for the credit of a perscn resident
outside Ceylon, or
make any payment to or for the credit «. f a person resident
in Ceylon by order or on behalf of a person resident outside
place any sum to the credit of any person resident outside
On these facts, it cannot be said that the appellant has in CeyloD madeany payment to the credit of Abubacker. The prosecution contendedin the Magistrate’s Court that the appellant made a payment to theCeylon company for the credit of Abubacker. The learned Magistrateaccepted this latter contention. Mr. Nadesan argues that, if any paymentwas made for the credit cf Abubacker, then Abubacker should have beenin a position to enforce payment to him at law had the Ceylon companyfailed to pay. There being no contractual relationship betweenAbubacker and tbe Cejdon company, it is argued that Abubacker wouldhave had no cause of action accruing to him against the Ceylon company.The person to have sued, in the event of failure to effect payment-to Abubacker, should have been the appellant liimself. I think thisargument is sound.
The learned Magistrate considered that tbe expression “for the creditof a poison ” in section 7 is wide enough to be interpreted as “for thebenefit of a person ”. Che point is not without difficulty, but, as I amhere concerned with the construction of a penal statute, I am deteiredin giving to the expression too geneial a meaning. Learned CrownCounsel say s he is unable to support the conviction. As the appellant hasonly been charged with a contravention of section 7 (a) of the Act, I donot feel called upon to consider whether he has contravened any otherprovision thereof.
I set aside the conviction and the sentence which was a fine ofRs. 100.
Conv 'ction set aside.
M. S. MOHAMED ALI, Appellant, and A. M. SENEVIRATNE (Inspector of Police, C. I.