N. ROHANA, Appellant, and S, SENARATNE (Police Sergent, C. I. D.), Respondent

080-NLR-NLR-V-72-N.-ROHANA-Appellant-and-S-SENARATNE-Police-Sergent-C.-I.-D.-Respondent.pdf


Rohana v. Senaratne
370
1967Present: Tennekoon, J.
N.ROHANA, Appellant, and S. SENARATNE {PoliceSergeant, 0. I. D.), Respondent
S. O. 470j67—M. C. Hambantota, 53269Criminal breach oj trust—Charge—Error in staling dale of offence—Effect—Burden ofproof—Penal Code, s. 3S0—Criminal Procedure Code, ss. G, JGS, 17J.
Where a person is charged with having committed criminal breach of trustin respect of a certain sum of money on a particular day, it is sufficient for himto show that there is no evidence that he misappropriated any money on thatday. Disbelief of evidence given by him at the trial that, on a subsequentdato, lie gave the money to the person to whom it was due is not a valid reasonfor convicting him.
.A.PPEAL from a judgment of the Magistrate’s Court, Hambantota.
George E. Chilly, Q.C., with U. A. S. Perera and G. Dissanayake,
for the accused-appellant.
.lianjith Dheeraratne, Crown Couusel, for the Attorney-General.
Cur. ado. Dull.
TENXEKOON, J.—Rohana v. Senaratne
271
October 12, 1967. Texxekoon, J.—
The appellant was convicted by the Magistrate, Hambantota, of theoffence of criminal breach of trust and sentenced to 3 months rigorousimprisonment.
The charge on which the accused was tried was as follows :—
“ You are hereby charged that you did within the jurisdiction ofthis Court at Malpcththawa on the 10th July, 1965, you being entrustedwith dominion over property to wit Rs. 91, did commit criminal breachof trust of the same and that you did thereby commit an offencepunishable under section 3S9 of the Penal Code. ”
The case for the prosecution was as follows :—
After the General Elections held in March, 1965 and “the formationof the present government, certain persons made arrangements for apinkama the main purpose of which was to offer dana to a number ofBuddhist monks and to invoke blessings upon the Prime Minister andhis government and transfer merit to the late Mr. D. S. Senanayake andother national heroes. The pinkama was to be financed from collectionsmade from t he public of Malpcththawa village. The organising committeeconsisted of the Rev. Wimalasiri, Edirisuriya, Dharlis, one Simon Appuand the accused. The pinkama was held on 10th July 1965 and the-committee of management met after the ceremonies were over to go infothe accounts. The accused prepared the statement of accounts PI..There was, after all expenses had been met, a balance of Rs. 232-25,Edirisuri3’a suggested that of this a sum of Rs. 100 be gifted to “ thegovernment ” and Rs. 25 be spent on a newspaper publication about thepinkama that had been held. On a suggestion made by the accusedthe amount of gift to the government was reduced to Rs. 66 00—afigure whose oddity, it transpired in evidence, is explained by the factthat there were 66 U. N. P. members of Parliament in the government.However the evidence does not make clear whether the sum ofRs.66 00was to be a gift to the Nation or to the political party or parties whichhad formed the new government; it is in this latter sense that Edirisuriyaused the word “ government ” when in a letter directed to the Ministerof Finance PS lie described himself as “ Sympathiser of GovernmentThe total sum of Rs. 91 was placed in the hands of the accused and hewas to go to Colombo on the following day to apply this sum of moneyin the manner decided upon by the Committee.
The prosecution case then was that the accused had not gone to Colomboon the following day and that he had not then or on any other date eitherpaid Rs. 66 to “ the government ” or applied the Rs. 25 for the purposesof a notice in the papers.
TEJJNEKOON, J.—Jiohana v. Senaratne
37 2
The prosecution called one Thenuwara, Director of Accounts, of whoseevidence the Magistrate says—
" Witness Thenuwara has testified that no sum whatsoever has beenpaid by the accused to Revenue (sic). Witness Thenuwara was theDirector of Accounts at the Treasury, Colombo, and his evidence wasnot even challenged by the defence. I therefore accejjt Iris evidencethat this money was never paid to Revenue.”
In regard to the question of dishonest misapprojwiation, the learnedMagistrate had this to say :
“ The prosecution has proved that this money has not been paid bythe accused to Revenue. There is however no direct evidence thatthe accused misapproj>riated this money. However the only irresistibleconclusion that could be drawn from the accused’s failure to pay themoney and his false explanation about handing the money toRatnasekera is that he had inisajipropriatcd it.”
The learned Magistrate’s inferences from Thenuwara’s evidence aresomewhat overdrawn ; he failed to notice that- it was entirely inconclusive ;
' .it was not the prosecution cose that the trust imposed on the accusedwas to pay the money at Mr. Thenuwara’s office. That was perhapsone of the ways in which it could have been discharged. The obligationto pay to “ the government ” could, because of its very vagueness, havebeen efTectcd in more ways than one. Indeed the accused understoodthe trust as meaning that he should pay the money to Mr. Wanninayake,the Minister of Finance. Further when the money came back into thehands of Edirisuriya he enquired of Mr. Wanninayake by PS whether he’ should pay the money to "you or Air, Dudley Senanayako, the HonourablePrime Minister, or to any other Officer” and he was informed that heshould pay it to the Secretary to the Treasury (P9).
In regard to the Magistrate’s reference to Ratnasekera it is necessaryto say that the accused stated in evidence (and he had also said so beforewhen questioned, by the police), that he had gone to Colombo, not onthe lltli July but on a subsequent dale and having been unable to handthe money over to Mr. Wanninayake, he gave the money to a friend ofhis, onclv. L. Ratnasekera, to be handed over to the Minister. He saidfurther that Ratnasekera was dead and unable to testify for him and alsothat he had asked his lawyers to summon Ratnasekera’s wife to speakto. that fact.. There were also according to him two persons who sawhim hand over the money to Ratnasekera, i.e., the M. P. for Gampolannd another person from Mamandala; lie further testified that havingcome to hear that Ratnasekera had not paid the money to the Minister,he on 23rd November, 19G5 paid the sum of Rs. 91 to the Rev. WimalasiriThero. The defence adduced no evidence other than that of theaccused.
TEXNEKOON, J.—Rohana v: Senaralnc
273
The learned Magistrate’s comment on this part of the defence is asrfollows :—
“ According to the accused he gave tire money to one Ratnasekera.Ratnasekera according to him is now dead. He has not called anyroneto support his version that Ratnasekera is dead. He has not calledany person to corroborate his evidence that this money was paid toRatnasekera although according to him the M. P. for Gampola andanother person from Mamandala were present at the time.”
At the conclusion of the ense, the lawyer appearing for the accusedsubmitted that the charge on which the trial proceeded was in respectof an offence committed on 10th July 1905 and that the evidence didnot establish the commission of any such offence on that date.
The learned Magistrate while accepting the position that the evidencedid not establish the commission of the offence on the 10th July1' purportedto follow a judgment of Swan, J. in Pandilakoralage v. Seliaranayagam'1and rejected the defence submission that the accused should be acquittedon the English principle”supposed to have been laid down in the Gase ofSevero Dossi2 “that a date specified in a charge lias never been considereda material matter unless time was the essence of the offence It is Ithink necessary to deplore this tendency to run to English rules ofprocedure in criminal law when there is express provision in our own.Section 6 of the Criminal Procedure Code permits recourse to EnglishTaw only when “no special provision has been made by this Code orby any other law for the time being in Ceylon ”. It may be that theEnglish law is the same and the English cases are relevant for that reason ;but that must be established first before the English cases are used.
Wliat provision is made in our law in regard to the specifying of thedate in a charge ? Section 1GS of the Criminal Procedure Code readsas follows :—
“ (1) The charge shall contain such particulars as to the time andplace of the alleged offence and as to the person (if any) againstwhom and as to the thing (if any) in respect of which it wascommitted as are reasonably sufficient to give the accusednotice of the matter with which he is charged and to showthat the offence is not prescribed.
(2) When the accused is charged with criminal breach of trust ordishonest misappropriation of movable property', it shall besufficient to specify the gross sum or, as the case may be, thegross quantity' in respect of which the offence is alleged to havebeen committed, and the dates between which the offence isalleged to have been committed without specifying particularitems or exact dates, and the charge so framed shall be deemedto be a charge of one offence within the meaning of section179 :
Provided that the time included between the first and lastof such dates shall not exceed one year. ”
* {1954) 56 N. L. R. 143.* 13 Cr. App. R. 158
374
TENNEKOON, J.—Rohana v. Senaratne
Section 171 then proceeds to say :
“ No error in stating either the offence or the particulars required to-be stated in the charge and no omission to state the offenceor those particulars shall be regarded at any stage of the caseas material, unless the accused was misled by such error oromission. ”
The question then for the court was not the vague test of whether“time is the essence of the offence ” but whether the error in statingthat the offence was committed on the 10th of July could have misledIke accused.’
The main ground on which the learned Magistrate held that therewas dishonest misappropriation was that the accused was giving a falsestory when he said that lie had given the money to Ratnasekera to begiven over to the Minister. The failure to prove that Ratnasekera wasdead as an explanation for his not being called and the failure to callother – witnesses who were present when the money was supposed tohave been given over to Ratnasekera to be paid over to Mr. Wanninayakeseem to have been the foundation for his disbelief of the accused. Now,where the charge alleges misappro2>riation on the 10th of July it was notnecessary for the accused to adduce evidence in regard to the handingover of the money to Ratnasekera on some later date, because suchevidence is irrelevant if misappropriation had already taken place onthe 10th of July. Accordingly it seems to nic completely unjust to havedrawn inferences adverse to the accused from his failure to substantiatehis story about Ratnasekera ; his lawyers may well have advised them-selves and the accused that proof of honest application of the moneyon a date subsequent to the date of misappropriation alleged in thecharge will not help, to obtain an acquittal, any more than proof that hehanded the money to the Rev. Wimalasiri Thero on the 23rd of November1965 would help to secure that result.
It seems to me that in a charge involving what is sometimes referredto as “ temporary misappropriation ”, the specification of a named dateor “ a date unknown ” between two terminal dates, is that kind ofparticular relating to the matter with which the accused is chargedwhich is almost invariably material, for the reason that the defence isvirtually being told that evidence of honest dealing with the propertyafter the alleged date of offence is irrelevant- and need not therefore beproduced at the trial. ’
The case dealt with by Swan, J. in 56 N. L. R. 143 was not a case ofmisappropriation, temporary or otherwise; it related to a charge ofpossessing ganja and upon an application of section 171 of the CriminalProcedure Code Swan, J. held that in that particular case the accusedhad not been misled by the reference in the charge to the date of the
TEXNEKOON, J.—Rohana v. Senaratne
376
offence as “ on or about March 28, 1954 ” when the evidence disclosedthat the ganja was actually found in the accused’s possession on the29th March 1954.
The case of The Attorney-General v. Dheen 1 was also cited to the learnedMagistrate. This is a judgment of Gunasekara, J. It is sufficient tostate the facts of that case to show how indistinguishable it is from theinstant case. That too was a case of “ temporary misappropriationThe prosecution case was that the accused who was a proctor had beenentrusted by one Gunasekera with a sum of Rs. 340 09 on the ISthDecember 1051 to be paid before 14th January 1951 to the credit of anaction in the Court of Requests of Galle in terms of the Decree in thatcase. The money had not been deposited in Court but when a complaintwas made by Gunasekera to the Law Society, the accused had, beforeany inquiry was held, paid the money back to Gunasekera. The charge
against the accused was in the following terms : “that you did
at Galle on ISth December, 1951., you being entrusted with
property to wit, a sum of Rs. 340'09 in your capacity as agent
did commit criminal breach of trust in respect of the said property andthat you have thereby committed as offence punishable under section392 of the Penal Code.”
At the trial, it was contended on behalf of the accused that the chargemeant that the offence was committed on ISth December, 1951, but thatthere was no evidence to prove the commission of an offence on that day.Upholding this contention the learned Magistrate discharged the accused..The Attorney-General appealed against this order.
In appeal, it was submitted on behalf of the Attorney-General thatthe charge did not mean that the offence was committed on ISthDecember, 1951, but that it was committed in respect of money thatAvas entrusted to the accused on that date. It was further argued(a) that the averments in the charge, taken together, were reasonablysufficient to give the accused notice of the matter with which he was.charged; (6) that it was not necessary that the charge shouldparticularize the time of offence; (c) that even if the Magistratethought the time should have been stated, he should have amendedthe charge to supply the omission. It was further contended that theMagistrate should have convicted the accused as he had held both thatthe money had been entrusted to the accused on ISth December, 1951,and that the accused had misappropriated it.
Gunasekara, J. held—
(1) That the charge meant that the offence was committed on ISthDecember, 1951, and that the prosecution had failed to provethis charge. All the accused had to do was to show that therewas no evidence that he misappropriated any money on theday in question.
1 (196J) 61 C. L. W. 74.
TENNEKOON, J.—Rohana v. Senaratne
376
That there was no. omission in the statement of the particulars of
the offence that had to bo supplied by an amendment.
That as the accused was not tried on a charge of having committed
an offence at any time other than the ISth December, 1951,it was not open to the learned Magistrate to find that theaccused misappropriated the money.
In the course of his judgment Gunasckara, J. said : “ In order to defendhimself against the charge that he was called upon to answer, it tccussxifficient for the accused to shots that there was no evidence that hemisappropriated any money on the day in question. It was not necessaryfor him to give or adduce evidence contradicting or explainingother items of incriminating conduct imputed to him by theprosecution, such as was imputed in the evidence that lie claimed tohave deposited the money to the credit of the civil case. Nor was itnecessary for him to adduce evidence in support of his explanation ofhis omission to deposit it. Under these circumstances an. inferencethat he misappropriated the money at some other time, though he maynot have done so at the time in question, cannot be drawn from the factthat he has not chosen to refute any particular allegation. In my opinionthere was no sufficient ground for the learned Magistrate’s finding thatthe accused misappropriated the money. He was not tried on a chargeof having committed such an offence at any time other than the ISthDecember, 1951. The appeal is dismissed.”
– It is clear from this passage that the test being applied by Gunasekara,
J.was that set out in section 171 of the Criminal Procedure Code ; itwas obviously the view of Gunasckara, J. that in a case where a date ofoffence is alleged in a charge relating to temporary misappropriationthe accused is under no dut}', and that it would be irrelevant for him toshow that he had not misappropriatd the money on a subsequent dateor that he had properly applied it on such subsequent date.
The only reason for the learned Magistrate not following this casewas. that Gunasekara, J. had not referred to or considcred English case-law whereas Swan, J. in 5G N.L.R. 143 had. It is necessary howeverto add that even this ajjproach would have led to a different conclusionhad not the learned Magistrate misunderstood and so misapplied, adictum of Atkin, J. in the case of Severo Dossi (reported more fully in13 Cr. App. R. than in S7 L.J. K.B. 1024). The learned Magistrate •quotes the following passage from that judgment:— **
** From time immemorial a date specified in an indictment hasnever been a material matter unless it is actually an essential part ofthe alleged offence, and although the day be alleged, }-et if tho jury
finds him guilty on another day, the verdict is goodThus
although the date of an offence should be alleged in an indictmentit has never been necessary that it should be laid according to truthunless time i3 of the essence of the offence. It follows therefore that
TEXNEKOOX, J.—Rohana v. Senaratne
377
the jury were entitled, if there was evidence that they could come tothat conclusion, to find the appellant guilty of the offence chargedagainst him even though they found that it had not been, committedon the actual date specified in the indictment. ”
The learned Magistrate then adds : “ It is my view that in a charge ofCriminal Breach of Trust, time is not of the essence of the offence ”,This statement indicates that the Magistrate understood Lord Atkinas saying that the test to be applied is an abstract one, having referenceto the offence as defined in the law and not to the particular instanceof it alleged to have been committed b3r the accused in the charge orindictment. It seems to me plain that what Lord Atkin was sayingwas that if the date is an essential part of the criminal act alleged in thecharge, then it is material but not otherwise. If Lord Atkin’s dictumis applied in this sense, it is somewhat similar to the test that would beapplied under section T7-1 of our Criminal Procedure Code._ But itmust be a matter of special note that prejudice to the accused is theessence of the test under section 171 while the test of time beingthe essence of the alleged offence does not bring that element to theforefront.
Reference should also be made in this judgment to the fact that Counselfor the appellant tendered to this Court an affidavit from Mrs. Ratnasekeraand a certified copy of the death certificate of Ratnasekera which provedthat he had in fact died on the 31st of October 19G5, long before the trialin the Magistrate’s Court, thus showing that the accused had beendisbelieved on a. matter, which was irrelevant in meeting the charge asframed but which might have been met by cogent and perhaps decisiveevidence if the proper date had been alleged.
In the result I am of opinion that the error in stating the date of theoffence was material and that the conviction cannot stand.
Crou-n Counsel urged that the case be sent back for a fresh trial on asuitably amended charge. It is only necessary to say that the prosecutionhad every opportunity of moving the Magistrate to alter the chargesuitably before he gave his verdict. This the prosecution did not dobecause, presumably it was not prepared to let the accused have thebenefit of a fresh trial which would have been inevitable if the Magistratedid alter the charge ; the prosecution instead elected to go on •with thecharge as it stood. This is not a case in which having regard to thedate and nature of the offence and the amount involved, and the totalityof the other circumstances, the accused should be vexed again.
I accordingly set aside the conviction and sentence and acquit theaccused.
Appeal allowed.