MUTHUSAMY, Appellant, and DAVID (S. I. Police), Respondent

110-NLR-NLR-V-50-MUTHUSAMY-Appellant-and-DAVID-S.-I.-Police-Respondent.pdf


Muthusamy v. David {S. I. Police)
423
1948Present : Basnayake J.
MUTHUSAMY, Appellant, and DAVID (S. I. Police),Respondent
8. C. 200—M. C. Meddle, 9,944
Money Lending Ordinance—Taking -promissory notes in blank—Notes taken byRanakapulle—Liability of employer—Mens rea—Chapter 67, sectionIS—Reasons for conviction not read out in Court—Irregularity—Conviction not vitiated—Criminal Procedure Code, Sections 304, 3061and 426.
Under section 13 of the Money Lending Ordinance where a pro-missory note is taken in blank, the true lender is guilty of an offencealthough it may he the hand of his servant that actually takes th e-offending document and pays out the money. It is not necessary insuch a case to show that he knew that the note was in blank.
The failure to comply in every particular with section 306 of theCriminal Procedure Code does not by itself vitiate a conviction.
1 {1924) 2 Times of Ceylon Law Re-ports, 192.
424
BASNAYAKE J.—Muthueamy v. David (S. I. Police)
j^VpPEA L from a judgment of the Magistrate, Matale.
A. Hay ley, K.C., with W. D. Ounasekera, for accused appellant.JR. A. Kannangara, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 15, 1948. Basnayakb J.—
The accused-appellant (hereinafter referred to as the appellant), oneMuthusamy Pulle, a money-lender, was convicted of the followingcharges under the Money Lending Ordinance (hereinafter referred to asthe Ordinance) and ordered to pay a fine of Rs. 250 in respect of eachcharge :—
“ (1) That you did, within the jurisdiction of this Court, at Mataleon 15th October, 1946, being a money-lender, take as security for aloan, a promissory note for Rs. 50 from one Jaleel in which the amountdue is left blank and that you have thereby committed an offencepunishable under section 13 of Chapter 67, Vol. II of L.E.C.
“ (2) That you did on 9.7.47, at Matale, within the jurisdiction■of this Court, take as security for a loan a promissory note for Rs. 30from one Nagoor Pitche in which the amount due is left blank andthat you have thereby committed an offence punishable under section13 of Chapter 67 of Vol. II of L.E.C.
“ (3) That you did on 17. 7. 47 at Matale, within the jurisdiction ofthis Court, take as security for a loan a promissory note for Rs. 25from one Mohamed Hussain in which the amount is left blank and thatyou have thereby committed an offence punishable imder section 13 of .Chapter 67 of Vol. II of the L.E.C.”
It appears that the appellant carries on his money-lending businessat premises No. 51, Esplanade Road, Matale. On a search of his place■of business Sub-Inspector Havid found 56 promissory notes in a box ofwhich 15 were blank. The present charges relate to three of thoseblank promissory notes. Of the three borrowers, Jaleel, the personreferred to in the first charge, does not appear to have been traced.Nagoor Pitche and Mohamed Hussain, the other two, have given evidence.“The former borrowed thirty rupees on promissory note PI which heexecuted in blank, while the latter borrowed twenty-five rupees onpromissory note P2 which was also executed in blank. PI was givento the appellant’s kanakapulle at a time when the appellant was absent,but the money borrowed thereon was later paid by the appellant himself.P2 was given when the appellant was present, the money being paidimmediately. Each borrower received a pass book which containedentries relating to the loans. The appellant produced his ledgers D3 and1)4 which show the accounts of Nagoor Pitche, Mohamed Hussain andJaleel in respect of the loans alleged in the charges.
BASNAYAKE J.—JSduthusamy v. David (S. I. Police)
425
The appellant admits that the promissory notes PI, P2 and P3 were-taken as security for loans, but denies that he took them or that he waspresent when they were taken. He says that he has a kanakapulle toattend to his business and that the blank notes were taken by the kanaka-pulle. He also denies that he knew that blank notes were taken. Heputs it down to the laziness or carelessness of his kanakapulle, who, hesays, has acted contrary to his instructions in lending money on promissorynotes not containing the particulars of the loan. It appears that althoughthe appellant’s kanakapulle had full authority to conduct the appellant’sbusiness, he was not competent to insert in English the necessary partic-ulars in the promissory notes he took. This appears to have beendone by a part-time visiting clerk after the notes were taken.
The learned Magistrate is satisfied that the blank notes were takenwith the appellant’s knowledge. He also holds that no mens rea isnecessary to establish an offence under section 13 of the Money LendingOrdinance and that, even if the notes were taken by the kanakapullewithout the appellant’s knowledge, his acts bind the appellant as thekanakapulle was acting within the scope of his employment. He relieson the maxim “ Quifacitper alium facit per se ”.
It is contended that in any event the appellant is not liable in respectof Jaleel’s promissory note as he has not given evidence. In respect ofthe others it is submitted, on the authority of the cases of Chisholm, v.Doullon1 and Williamsonv. Norris2 that the appellant cannot be convictedwithout proof of mens rea. It is sufficient to refer to the ease of Chisholmv. Doullon (supra) wherein Cave J. states the English-law doctrine ofmens rea thus :—
“It is a rule of the criminal law that one of the elements in everyoffence at common law is some condition of mind to which blameattaches. Sometimes it is negligence, sometimes malice, sometimesknowledge, but there is always some such condition of mind to whichis applied the name of mens rea. Moreover, it has always been aprinciple of the common law that the condition of mind of a servantcannot in criminal matters be attributed to the master, and that themaster cannot be held criminally responsible for the act of his servant.This universal rule of the common law applies also, as a general rule,to statutory offences. The Legislature may, indeed, and has in somecases enacted that a man may be convicted of an offence although hehas not been shown to have a criminal condition of mind. But inthese cases it lies upon those who assert that this has been done tomake out their contention by convincing words in a statute, and thisCourt will not lightly assume that the Legislature intended that oneperson should be punished for the fault of another.”
In JR. v. Tolson3 Stephen J. appears to have approached the questionof mens rea from a different angle. His words are important enough tobear quotation in extenso. He says :—
“ Though this phrase (non est reus, nisi mens sit rea) is in commonuse, I think it most unfortunate, and not only likely to mislead, butactually misleading,, on the following grounds. It naturally suggests
1 (1889) 58 LJ. M.C. 133 at 135.* (1898) 68 L.J. Q.B. 31.
3 (1889) 23 Q.B.D. 168 at 185.
426
BASNAYAKE J.—Muthusamy v. David (S. I. Police)
that, apart from all particular definitions of crimes, such a thingexists as a mens rea, or ‘ guilty mind,’ which is always expressly or byimplication involved in every definition. This is obviously not thecase, for the mental elements of different crimes differ widely. Mensrea means in the case of murder, malice aforethought ; in the case oftheft, an intention to steal; in the case of rape, an intention to haveforcible connection with a woman without her consent ; and in the case-of receiving stolen goods, knowledge that the goods were stolen. Insome eases it denotes mere inattention. For instance, in the case ofmanslaughter by negligence it may mean forgetting to notice a signal.It appears confusing to call so many dissimilar states of mind by onename. It seems contradictory indeed to describe a mere absence ofmind as a mens rea, or guilty mind. The expression again is likelyto and often does mislead. To an unlegal mind it suggests that by-the law of England no act is a crime which is done from laudablemotives, …. Like most legal Latin maxims, the maxim on-mens rea appears to me to be too short and antithetical to be of suchpractical value. It is, indeed, more like the title of a treatise than apractical rule. I have tried to ascertain its origin, but have not
rsueceeded in doing soThe earliest case of its use which
I have found is in the ‘ Leges Henrici Primi,’ v. 28, in which it is said:
" Si quis -per coaccionem abjurare cogatur quod per multos annos quietetenuerit, non in jurante sed in cogente perjuriam erit. Reum non facitnisi mens rea ”…. The principle involved appears to me,
when fully considered, to amount to no more than this. The fulldefinition of every crime contains expressly or by implication a pro-position as to a state of mind. Therefore, if the mental element ofany conduct alleged to be a crime is proved to have been absent in anygiven case, the crime so defined is not committed ; or, again, if a crimeis fully defined, nothing amounts o that crime which does not satisfythat definition.”
Stephen J.’s view seems to be against the importation into a statute-creating an offence any ingredient which is not expressed or implied in•the statute itself. Even though it may be permissible in England toimport the common-law doctrine of mens rea into statutory offences, in•Ceylon such a course cannot be adopted, for the principles of Englishcriminal law can apply only in cases in which they have been importedinto our legislation expressly or by necessary implication. Our criminallaw and procedure are governed by the Penal Code and the CriminalProcedure Code. So much of the English and Roman-Dutch criminallaw as existed at the time of the enactment of the Penal Code is expresslyabolished by section 3 which enacts : “So much of the Criminal Lawheretofore administered in this Island as is known as * the Criminal Law•of the United Provinces ’, or as ‘ the Roman-Dutch Law ’ is herebyabolished.” This view finds support in the case of Kachcheri Mudaliyarv. Mohomadu^, a decision of three judges, which holds that the Penal-Code has abolished not only the Roman-Dutch criminal law, but also theEnglish criminal law, which, to a certain extent, had been imported intothe jurisprudence of this country.
1 (1920) 21 N. L. It. 369.
BASITAYAKE J.—JSduthusamy v. David [S. I. Police)
427
In regard to the doctrine of mens rea, it is settled law both here and inIndia1 that the doctrine as understood in English criminal law as suchhas no place in the criminal law of either country. In dealing with theargument of the Solicitor-General for the Crown that the doctrine is notin force in Ceylon, Bertram C.J. observes in the case of Weerakoon v.JRanhamy 2 (4 judges) :—
ct I think he is correct in stating that for the doctrine of mens reaas it exists in our law, we must look exclusively to sections 69 and 72of our own Penal Code.”
In the instant case, neither section 69, nor section 72, nor any otherprovision of the Penal Code, excuses the act of the 'appellant. The onlyquestion that remains for decision is whether, upon a true interpretationof the Money Bending Ordinance, the appellant is excused if as he saysthe promissory notes PI, P2, and P3 were taken by his kanakapullecontrary to his instructions. To answer this question it is necessary firstto examine section 13 of the Money Lending Ordinance which the■appellant is alleged to have contravened. That section reads :
“ Any person who shall take as security for any loan a promissorynote or other obligation in which the amount stated as due is to theknowledge of the lender fictitious, or in which the amount due is leftblank, shall be guilty of an offence, and shall be liable on convictionto a fine not exceeding five hundred rupees, or in the event of a secondor subsequent offence, either to a fine not exceeding one thousandrupees, or to simple imprisonment for a period not exceeding sixmonths.”
Now under this section a person who takes as security for any loan-a promissory note in which the amount due is left blank is guilty of an-offence. The words take as security for any loan are significant, in that"those words in my view fix the liability on the true lender though it maybe the hand of his servant that actually takes the offending documentand pays out the money of his master. It is clear that the legislatureintended to make the prohibition against taking promissory notes inblank absolute. It is significant that although in the ease of fictitiouspromissory notes it must be proved that the lender knew that the amount-stated as due was fictitious there is no such requirement in regard topromissory notes in which the amount due is left blank.
It is not denied that, in contravention of the statute, promissorynotes, in which the amount due on each was left blank, were taken as-security for the loans given to Nagoor Pitehe and Mohamed Hussain.But the appellant claims that it was his servant and not he that contra-vened the statute, and that he cannot be held liable for the acts of hisservant. That claim is, in my opinion, not entitled to succeed in theinstant case at any rate, for it is not denied that the kanakapulle paid-out the appellant’s money and took the notes as security for the loansmade not by the kanakapulle for himself but by him for his master, theappellant. The question also arises as to whether, having regard to thenature and object of the statute, the appellant can in law escape liability
Mayne. 's Criminal Law of India, 4th Edn., p. 9.
-a [1921) 23 N. L. It. 33 at 42.
428
BASNAYAKE J.—Muthusamy v. David, (S. I. Police)
by imputing the blame for the contravention of the statute to his servantthe kanakapulle,. The case law of England provides numerous instancesin which, on a true interpretation of a statute, the master has been heldliable for the breach of it committed by his servant entrusted with thecarrying on of his master’s business.
In the case of Roberts v. Woodward 1 the master was held liable for theact of his servant in supplying drink to a constable on duty. In thewords of Baron Pollock, the liability arises “ not by virtue of an expressstatutory enactment that he should be liable, but because to permit himunder such circumstances to avail himself of a plea that he was ignorantof his servant’s acts would be contrary to the whole spirit of legislationon the subject.”
In the case of Farley v. Higginbotham, z, an employer was held liablefor the act of his servant upon the well-known principle that where thegist of the offence is not in reality criminal then the master may be heldliable. Wright J. observes in that case : “ It seems to me that theseFood Adulteration Acts could not be worked if persons who keep shopswere not to be held liable for acts done by their servants in carrying onthe ordinary course of the business.”
In the case of Mullins v. Collins 3, a licensed victualler was held liablefor the act of his servant who sold liquor in the ordinary way to a constablewho was in uniform and on duty, without inquiring whether he had theauthority of his superior officer. Quain J. approaches the question thus
“ We must look at the nature of the act done. How does a licensedvictualler carry on his business ? He frequently supplies the liquor,not personally, but through his servants. Then does the supply ofliquor without the knowledge of the licensed person, by his servant,to a constable on duty amount to an offence under section 16'?. Herethe servant sold the liquor in the ordinary way to the constable, whowas in uniform and on duty, and she did not inquire whether he hadthe authority of his superior officer. If we held that, on these facts,the licensed victualler was not liable for the act of his servant, weshould render the enactment wholly inoperative.”
In the case of Dyer v. Munday 4 Rigby Xi. J. holds, following the case-of Bayley v. Manchester, Sheffield & Lincolnshire Ry. Co. 5 that a personwho puts another in his place to do a class of acts in his absence neces-sarily leaves him to determine, according to the circumstances thatarise, when an act of that class is to be done, and trusts him for the-manner in which it is done ; and consequently he is held answerable for-the wrong of the person so entrusted either in the manner of doing suchan act, or in doing such an act under circumstances in which it oughtnot to have been done ; provided that what was done was done, not fromany caprice of the servant, but in the course of the employment : andadds : “ I can find no authority for distinguishing in the application ofthis rule between tortious and criminal acts of the servant.”
This principle was affirmed in the case of Commissioners of Police v.Cartman 6 wherein it was held that the fact that the master bona fide gave;
(1890) 25 Q. B. D. 412 at 415.1 (1895) 1 Q. B. 742.
3 42 Sol. Jo. 309.5 (1871-72) 7 L. R. C. P. 415 at 420..
3 (1873-74) 9 L. R. Q. B. 292.6 (1896) 1 Q. B. D. 655.
BASiSTAYATCE J.—Muthusamy v. David (S. I. Police.)
429
instructions to his servant, a barman, that no drunken persons should beserved, and that he intended those instructions to be acted upon, affordsno answer to a chftrge against the master. Lord Russell of Eollowen C. J.observes : “In considering this question, we must see what is the objectof the Act, and how far that object would be effected or defeated if theconstruction contended for by the respondent were given to this section.”
It appears from the case of Allen v. Whitehead1 that even in a case'where knowledge is an ingredient of an offence, knowledge in the servantmay in certain circumstances be imputed to the master. In deter-mining whether in any particular statute the principal is made liable ifthe act is in fact done by his servants, regard must be had, as stated byAtkin J. in Mousell Bros. Ltd. v. London <fc North-Western By. Co.2 “ tothe object of the statute, the words used, the nature of the duty laiddown, the person upon whom it is imposed, the person by whom it wouldin ordinary circumstances be performed, and the person upon whom thepenalty is imposed.”
I have cited English precedents to the point of almost overburdeningthis judgment in order to show that even in England the principlesstated by Cave J. in Chisholm v. Boulton (supra) are not regarded asapplying to all statutory offences. In this connexion I should not failto refer to the maxim qui fadit per alium facit per se, which the learnedActing Magistrate has cited. I agree with him that it is applicable incriminal as well as in civil cases.3
I shall now briefly refer to the main provisions of the Money LendingOrdinance. It is an Ordinance to provide for the better regulation ofmoney-lending transactions. It prescribes the duties to be observed bya person carrying on a money-lending business. He must keep accounts(section 8) ; he must give copies of accounts, documents relating to theloan, and receipts, on being requested to do so by the borrower (section 9),and also permit him to compare such copies with the original. Section 10requires that every promissory note given as security for the loan ofmoney shall have the prescribed particulars separately and distinctly setforth thereon.
The provisions I have referred to, along with the section which isunder consideration in the instant case, are all designed for the protectionof the borrower. They can all be rendered useless if a money-lender isable to escape liability by employing a servant to carry out his duties.Money-lending is a business that can be carried on through an agent.Where business is transacted through a servant the real lender is not theservant but the master. It is not claimed, as I have said before, that inthe instant case the loan was made by the kanakapulle or that he tookthe note as security on his own behalf. The loans are accounted for inthe appellant’s books, which he admits he examines. If the appellant’scontention were to prevail, neither he nor his kanakapulle would beliable, for clearly the lender is not the kanakapulle but the appellant.The appellant’s contention would render the obligation imposed bysection 10 ineffective and make section 13 of the Ordinance whollyinoperative, and defeat one of the main objects of the Money LendingOrdinance.
{1929) 45 T. L. R. 655 at 656.2 (1917) 2 K. B. 836 at 84b.
3 Stroud’s Mens Rea, p. 136.
430BA SNAYAKE J.—Muthusamy v. David (S. I. Police)
On a true construction of section 13 of the Ordinance in the light of theprinciples laid down in the cases I have cited above, I am unable toescape the conclusion that the appellant is liable to be punished for theacts alleged in the charges against; him.
Learned Crown Counsel has drawn my attention to the fact that inthis ease the learned Magistrate’s reasons were not read out in open Court.It appears from the letter of the Acting Magistrate who tried the appellantthat although the conviction and sentence in this case were recorded andsigned in open Court, the reasons were not. They were handed by himto the permanent Magistrate on the day after the verdict. Section306 (1) of the Criminal Procedure Code requires that “ the judgment shallbe written by the Magistrate who heard the case and shall be dated andsigned by him in open court at the time of pronouncing it, and in caseswhere appeal lies shall contain the point or points for determination, thedecision thereon, and the reasons for the decision.”
Learned Crown Counsel referred me to the case of Henricus v. Wije-sooriya 1 where de Silva J. held that the failure to read out the reasonsfor the Magistrate’s finding is an irregularity which is not curable undersection 425 of the Criminal Procedure Code. The learned judge appearsto have departed from some of the earlier decisions of this Court whichhold that the failure to read the reasons in open court is curable undersection 425.
The provisions of the Criminal Procedure Code which have an immediatebearing on the question are sections 304 and 306. They read—
y ”304. The judgment in every trial under this Code shall bepronounced in open court either immediately after the verdict isrecorded or at some subsequent time of which due notice shall begiven to the parties or their pleaders, and the accused shall if incustody be brought up or if not in custody shall be required to attendto hear judgedent delivered except when his personal attendanceduring the trial has been dispensed with and the sentence is one offine only.”>
“ 306. The following provisions shall apply to the judgments ofcourts other than the Supreme Court:—
The judgment shall be written by the District Judge or Magis-
trate who heard the case and shall be dated and signed byhim in open court at the time of pronouncing it, and in easeswhere appeal lies shall contain the point or points for deter-mination, the decision thereon, and the reasons for the decision.
It shall specify the offences if any of which and the section of the
law under which the accused is convicted and the punishmentto which he is sentenced.
If it be a judgment of acquittal it shall state the offence of which
the accused is acquitted.
When a judgment has been so signed it cannot be altered Or
reviewed by the court which gives such judgment ;
Provided that a clerical error may be rectified at .any time andthat any other error may be rectified at any time before thecourt rises for the day.
1 {1946) 47 N. L. R. 37S.
BASNAYAJKE J.—Mutlmsamy v. David (S. I. Police)431
The judgment shall be explained to the accused affected thereby
and a copy thereof shall be given to him without delay if heapplies for it.
The original shall be filed with the record of proceedings.”
Section 304 requires that the judgment shall be pronounced in opencourt either immediately after the verdict is recorded or at some sub-sequent time of which due notice shall be given to the parties or theirpleaders. Now what is the sense in which the word “ judgment ” isused ? It is clearly not the verdict. Is it the pronouncement of thesentence ? It has been so held in a number of cases 1.
In the case of Kershaw v. Rodrigo 2 it was observed by Ennis J. : “ Fromsection 306 it would seem that the judgment is something other than thereasons for the decision for the reasons have to be recorded in the judg-ment and only in cases where there is an appeal, while section 304 indicatesthat the judgment is not necessarily contained in the verdict.”
The judgment of a Magistrate’s Court in a case where an appeal liesshould according to section 306-—
contain the point or points for determination, and the decision
thereon together with the reasons for the decision,
specify the offence and the section of the law under which the
accused is convicted, and the punishment to which he is
sentenced, and
be written by the Magistrate who heard the case and dated and
signed by him in open Court at the time of pronouncing it.
To my mind the judgment contemplated in section 304 is, in the caseof a conviction, a judgment which fulfils all these requirements.
In the case of a trial in a Magistrate’s Court there is another provisionwhich needs consideration, viz., section 190. That section reads—
“ 190. If the Magistrate after taking the evidence for the prose-cution and defence and such further evidence (if any) as he may ofhis own motion cause to be produced finds the accused not guilty, heshall forthwith record a verdict of acquittal. If he finds the accusedguilty he shall forthwith record a verdict of guilty and pass sentenceupon him according to law and shall record such sentence.”
In the instant case the learned Acting Magistrate complied with therequirements of that section, for when after hearing the prosecution anddefence he found the appellant guilty he made the following record : “ Ifind the accused guilty. I sentence him to pay a fine of Rs. 250 indefault 2 months S.I. on each count, i.e., Rs. 750 in all or 6 months S.I.Reasons to-morrow. Time till 5.1.48 to pay fine on double security.”
The record made by the learned Magistrate on 22.12.47 contains theverdict and the sentence and appears to have been pronounced andsigned by him in open Court though not dated. The reasons were notpronounced, nor dated, nor signed in open Court, but merely filed ofrecord.
The Queen v. Kiriya (,1894) 3 S. C. R. 100.
Forrest v. Leefe (1910) 13 N. R. R. 119.
(1916) 3 C. W. R. 44.
432
BAS1STAYAKTL J.—Muthusamy v. David (S. 1. Police)
The question then is whether the non-compliance with section 306of the Code in the respects I have indicated is fatal to the conviction oris curable under" section 425. That section enacts that no judgmentshall be reversed or altered on appeal on account of any omission orirregularity in the judgment unless such omission or irregularity hasoccasioned a failure of justice. What is the judgment in the instantcase ? Is it the record of the verdict and sentence, or the reasons ? Iam inclined to think it is the former as it contains all the essentials of afinding at the conclusion of a criminal trial before a Magistrate as pre-scribed by section 190. It is defective in that it is not dated and doesnot specify the charge and does not contain the reasons.
I have carefully examined the petition of appeal and it is not allegedtherein that the appellant was prejudiced by the irregularity, nor did thelearned counsel for the appellant at the outset of his appeal take thepoint or submit that the appellant was prejudiced. Nor is thereanything to indicate that the appellant has been prejudiced or that theirregularity has occasioned a failure of justice.
The cases of Clara v. Pedrick 1, Forrest v Leefe 2, Chairman, MunicipalCouncil, Kandy v. Moihmad Ali et al. 3, and Buultjens v. Samitchi Appu 4all hold that the failure to comply in every particular with section 306does not by itself vitiate a conviction. I am in respectful agreementwith those decisions.
On reference to the Indian Criminal Procedure Code I find that sections366 and 367 of that Code correspond to section 304 and 306 of our Code.Under the Indian Code too it has been held 5 that the omission to write ajudgment before pronouncing the sentence, to date and sign the judgment 0in open Court, and to record reasons 7 for the decision, are irregularitiescurable under section 537 of the Indian Code.
The appeal is dismissed.
Appeal dismissed.
(1900) 1 Browne 211.
(1910) 13 N. L. R. 119.
(1923) 25 N. D. R. 85.
* S. C. Minutes of 23rd October, 1945jS. G. 646—647 jM. G. Trincomalee, 11,304.
Mohamed Hayat Mulla v. Emperor, (1930) A. I. R. Rangoon 77.
8 Ram Sukh & others v. Emperor, A. I. JR. 1925, Allahabad 299.
Sham Lai KJhettry v. Emperor, A. I. R. 1932, Calcutta 655.
Damu Senapathi v. Sridhar Rajwar, (1893) I. L. R. 21, Calcutta 121.