-PERERA v. THE ATTORNEY-GENERAL

019-SLLR-SLLR-1985-V2-PERERA-v.-THE-ATTORNEY-GENERAL.pdf


156
Sri Lanka Law Reports
‘I985j 2 SnL R
PERERA
v.
THE ATTORNEY-GENERAL
COURT OF APPEAL.
H A. G. DE SILVA, J.. ABEYWARDENE. J AND JAYALATH. JC A 115/82 – H. C. COLOMBO 3137.
MAY 13 AND 14, 1985.
Criminal Law – Cheating – Penal Code section 403 – Dishonestinducement – Delivery of property by third party other than party induced
On the authorisation of K. C. de Silva who acted on behalf of the Director, SmallIndustries, the officers of the power loom centres which were under the control of thesaid Director delivered to the accused-appellant three lots of textiles' But for theauthorisation by K. C. de Silva the officers of the powerloom centres would not havedelivered the textiles to the accused-appellant. On three counts in respect of the three
Parera v Attorney-General
157
CA
lots of textiles the accused-appellant was charged with dishonestly inducing K. C. deSilva to deliver the textiles in question to him by falsely representing that they weremeant for distribution to Co-operative Societies for sale to consumers but in fact theaccused-appellant sold them at a profit to private traders. The accused was convictedon all three counts and sentenced to two years' rigorous imprisonment on eachcount – sentences to run concurrently. In appeal the facts were not disputed but as amatter of law it was argued that where the delivery of the goods was not by the persondishonestly induced the charges were not made out.
Held –
It is the inducement and not the delivery that constitutes the gist of the crime. Thewords "induces the person so deceived to deliver any property to any person in thePenal section" are wide enough to include not only property in the ownership orpossession of the person so induced but also any property under the control of theperson so induced on whose authorisation the property shall be delivered.This amountsto constructive delivery of the goods. K. C. de Silva gave his authorisation beingdeceived by the false representation made by the accused-appellant. The ingredients ofthe crime of cheating were thus proved beyond reasonable doubt.
APPEAL from judgment of the High Court of Colombo
Dr. Colvin R. de Silva with U. A S. Perera for accused-appellant.
Asofea de Sr/va, S. S. C. for Attorney-General.
Cur. adv. vult.
June 12. 1985
JAYALATH, J.
The accused-appellant in this case was convicted on three counts bythe learned High Court Judge of Colombo on 3.4.1980 andsentenced to 2 years' rigorous imprisonment on each count,sentences to run concurrently.
The three charges were under section 403 of the Penal Code asfollows 1
(1) that the accused-appellant on or about the 5th June. 1974,dishonestly represented that he was purchasing 20,000 yardsof textiles valued at Rs. 83,000 for the DandugamperuwaMulti-Purpose Co-operative Society and thereby deceived K. C.de Silva and fraudulently induced K. C. de Silva in that mannerfor the purpose of getting the said quantity of cloth delivered tothe accused-appellant and thereby committed an offencepunishable under section 403 of the Penal Code.
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{2) that the accused-appellant on or about the 18th June. 1974dishonestly represented that he was purchasing 50.000 yardsof textiles valued at Rs. 220,750 for the OandugamperuwaMulti-Purpose Co-operative Society and thereby deceived K. C.de Silva in that manner for the purpose of getting the saidquantity of cloth delivered to the accused-appellant and therebycommitted an offence punishable under section 403 of thePenal Code.
that the accused-appellant on or about the 9th July, 1974dishonestly represented that he was purchasing 250,000 yardsof textiles valued at Rs. 996,000 for the DandugamperuwaMulti-Purpose Co-operative Society and thereby deceived K. Cde Silva in that manner for the purpose of getting the saidquantity of cloth delivered to the accused-appellant and therebycommitted an offence punishable under section 403 of thePenal Code
The accused-appellant was also charged with two others, the 2ndand 3rd accused in this case, in that they did between the 24th May.1974 and 8th August. 1974 deceive K. C. de Silva and conspire withthe other two accused to take delivery of a quantity of textiles, anoffence punishable under section 113 B read with section 403 of thePenal Code.
The 2nd and 3rd accused were also charged with aiding andabetting the accused-appellant. The learned trial Judge found thethree accused not guilty of the charge of conspiracy, and the 2nd and3rd accused were also acquitted of the charges against them.
It would be appropriate to state the facts of this case briefly in orderto appreciate the only submission raised by the learned Senior Counselfor the accused-appellant on a point of law.
The accused-appellant was employed by the DandugamperuwaMulti-Purpose Co-operative Society as a Supplies Officer between therelevant dates of 24th May, 1974 and 8th August. 1974.
The 2nd accused was the General Manager of the aforesaidCo-operative Society and the 3rd accused was an Inspector in theCo-operative Department stationed at Gampaha TheDandugamperuwa Multi-Purpose Co-operative Society was within hisarea.
CAPerera v. Attorney-General {Jayalaih J )159
There were large stocks of long cloth and matt cloth available atpowerloom centres in various parts of the country. These stocks werenormally purchased by the Salu Sala, and sold through theDepartment of Small Industries. In 1974, however the Salu Sala hadinformed the Department of Small Industries that it would notpurchase the long cloth and matt cloth that year.
The Department of Small Industries then called for tenders for thepurchase of the available stock from private tenders. The highest bidwas Rs. 4.15 cts. per yard. This Department later decided to sell thecloth to Co-operative Societies at Rs. 4.15 cts. per yard to enablethem to distribute it to consumers. The Department of SmallIndustries decided to limit the distribution to 5.000 yards for eachCo-operative Society which had to get the approval of the AssistantCommissioner of Co-operative Development of the area. A circularmarked and produced as 1 D 1 was sent by the Department of SmallIndustries to all powerloom centres to give effect to this limitation ofsales.
K. C. de Silva, Textile Technologist of the Department of SmallIndustries gave evidence for the prosecution in this case and said,howfever, that the circular applied to the powerloom centres only andnot to the Small Industries Department that sent the circular. As suchhe said he had the power to permit a larger quantity of textiles toCo-operative Stores at his discretion.
The accused-appellant has in his evidence admitted that heprepared the three documents P 1, P 2 and P 3 which were producedat the trial. They were prepared by him for the purpose of obtaining thevarious quantities of textiles through the Department of SmallIndustries.
P 1 was a letter dated 24.5.1974 signed by the 2nd accused whowas the General Manager of the Dandugamperuwa Co-operativeSociety addressed to the General Manager, Power Loom Centre,Small Industries at Lewella or Matale through the AssistantCommissioner of Co-operative Development, Gampaha requesting theissue of 20,000 yards of long cloth to the DandugamperuwaMulti-Purpose Co-operative Society. The application wasrecommended and signed by the 3rd accused who was the Inspector.Co-operative Department and stationed at Gampaha at the time. Thisletter was endorsed by K. C. de Silva, for the Director of Small
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Industries authorising the issue of 20,000 yards of long cloth or alesser amount from the Power Loom Centre at Matale to the aforesaid•Co-operative Store marked and produced as P 1 a.
P.2 was a letter dated 31.5.74 purported to have been sent by theGeneral Manager, Dandugamperuwa Multi-Purpose Co-operativeSociety to the General Manager of the Power Loom Centre, Matalethrough the Asst. Commissioner Co-operative Development.Gampaha requesting the issue of 50,000 yards of long cloth to theaforesaid Co-operative Society. This letter contained arecommendation by the 3rd accused that the cloth should be issuedto the aforesaid society. Below was an endorsement of K. C de Silvato the General Manager, Power Loom Centre, Nuwara Eliya that he‘may sell 25,000 yards of matt cloth at Rs. 4.15 cts. a yard, and25,000 yards of long cloth at Rs. 4.70 cts. a yard. " This wasproduced as P 2 a. The accused-appellant admitted that he wrote thesignatures of the General Manager of the aforesaid Co-operativeSociety in P 2.
P3 was a letter addressed by the General Manager.Dandugamperuwa Multi-Purpose Co-operative Society to the Directorof Small Industries through the Asst. Commissioner, Co-operativeDevelopment, Gampaha requesting him to issue damaged saree clothto the aforesaid Co-operative Society to be distributed amongconsumers of the society. This application too was recommended bythe 3rd accused. K. C. de Silva had endorsed it on behalf of theDirector of Small Industries and authorised the issue of damagedsaree cloth to the aforesaid Co-operative Society.
It had first been addressed by K. C. de Silva to the Velona PowerLoom Centre, but as their stocks were exhausted, it was addressed tothe Kurunegala Power Loom Centre. It is in evidence that 250,000yards of matt cloth valued at Rs. 996,000 had been purchased on thisletter.
It is in evidence, and it was admitted by the accused-appellant thatall the textiles issued on the letter P 1, P 2 and P 3 were obtained bythe accused-appellant and other than 465 yards of these textiles sentto the Dandugamperuwa Multi-Purpose Co-operative Society, thebalance was sold to the private traders by the accused-appellantthrough a broker by the name of Karunaratne. Karunaratne. a witness
CAPerera v. Attorney-General (Jayalath, J.)161
for the prosecution stated that he went to the power loom centre withthe accused-appellant to take delivery of the textiles from the powerloom centres having paid for them. He said that the accused-appellantwas paid 15 cts. for every yard of cloth purchased.
K. C. de Silva who also gave evidence for the prosecution said thathe would never have authorised the power loom centres to issue thecloth had he known that these textiles were to be sold to privatetraders.
There is no dispute between the prosecution and defence as to thefacts in this case. At the very outset the learned Senior Counsel for theaccused-appellant stated that he was not disputing any of the facts inthis case. The only legal point he was raising in this case was that thethree charges in the indictment on which the accused-appellant hadbeen convicted were defective, and therefore the conviction cannotbe maintained. He stated that the evidence led by the prosecution didnot support the charges. He said that the defective part of eachcharge read as follows :
“and thereby deceived K. C. de Silva and induced fraudulently the
said K. C. de Silva to deliver to you the said quantity of cloth.'
He submitted that according to the evidence led by the prosecutionthe goods were delivered to the accused-appellant by the officers ofthe power loom centres, as the goods were in their possession andnot in the possession of K. C, de Silva. He said that the charge hadapparently been framed to cover the first limb of section 403, or thefirst limb of section 398 which defines cheating.
Learned Senior Counsel for the accused-appellant based hisargument on the English translation of the charges from the Sinhalarecord of the case. I
I have carefully perused the indictment dated 20.3.1980 in theSinhala record, on which the accused were tried which varies from theEnglish translation.
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Sri Lanka Law Reports
11985} 2 Sri LR.
The relevant words used in the three charges in Sinhala are asfollows :
"sd. O. <; a£cb dL£)B«ScS aSAoi <5a *c3tm<S ta o^a» 0& *d. a. <; 0^0)
&>0*oS sogiD**oi <«J£) && ekgaxid 403 £)ts Sa>ai&<3 30«dCtSa Od<,oD gdSau
O<J<; ad[ dDo *
The correct translation of these words is as follows :
'and thereby deceived K. C. de Silva and fraudulently induced
K. C. de Silva in that manner for the purpose of getting the said
quantity of cloth delivered to you and thereby you have committed
an offence punishable under section 403 of the Penal Code".
It is therefore clear that the words in the English translation 'andthereby deceived K. C. de Silva to deliver to you the said quantity ofcloth' is an erroneous translation.
In order .to prove a charge of cheating the prosecution mustestablish the following ingredients
the deception of any person,
(a) by fraudulently or dishonestly inducing that person,
(i) to deliver any property to any person, or
{ii} to consent that any person shall retain any property, or
intentionally inducing that person to do or omit to do anythingwhich he would not do or omit if he were not so deceived andwhich act or ommission causes or is likely to cause damage orharm to that person in body, mind, reputation or property.
The learned Senior Counsel for the accused-appellant alsosubmitted that section 403 of the Penal Code contemplates a deliveryby the person induced by the representation and by nobody else.
In my view the words 'to deliver any property to any person' have avery wide application in a charge of cheating. In construing the words'induces the person so deceived to deliver any property to any person,inducement and not the delivery of the property should be construedas the gist of the crime (Vide. Gour-Penal Laws of India. 8th editionp 3013.)
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CAPerera v Attorney-General (Jayalath, J.)
As such the words 'for the purpose of getting the said quantity ofcloth delivered to you' is construed in this instance to mean 'for thepurpose of causing the said quantity of cloth to be delivered to you.'
Further, it is my view that the words 'induces the person sodeceived to deliver any property to any person' include not onlyproperty in the ownership or possession of the person so induced butalso any property under the control of the person so induced, onwhose authorisation the property shall be delivered, which amounts toa constructive delivery of the goods.
In this case the long cloth and the matt cloth delivered to theaccused-appellant by the officers of the power loom centres wereunder the direct control of the Director, Small Industries on whosebehalf K. C . de Silva acted. The officers of the power loom centres hadno option but to carry out K. C. de Silva's order. But for thisauthorisation made by K. C. de Silva the goods would not have beendelivered to the accused-appellant by the officers of the power loomcentres. As stated earlier the accused-appellant admitted that K. C. deSilva acted on his representation.
The learned trial Judge has sifted the evidence led at the trial verycarefully and come to the following conclusion :
The 1 st accused had sold cloth to the private sector throughKarunaratne at the rate of Rs. 4.30 per yard. By that he had earneda large profit. The 1st accused has accepted all these facts.According to the evidence of the 1 st accused, applications P 1,P 2, and P 3 show that the 1st accused indicated to K. C. de Silvathat he is buying the cloth for the Co-operative Society. Accordingto the evidence of Mr. Silva, if he did not make such an indication hewould not issue these permits. The 1st accused admitted that hefraudulently put the signature on P 2. Accordingly without any doubtit appears that the 1 st accused obtained cloth by deceiving Mr. K.
de Silva, that he was buying the cloth for the Co-operativeSociety and sold them to the private sector at a profit. Therefore inmy opinion the charge of cheating against the 1 st accused is provedbeyond doubt.'
We have no reasons to interfere with the finding of the learned tnaiJudge.
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The sentence of 2 years' rigorous imprisonment for each count inour opinion is a lenient one, considering the nature of the offence.
We accordingly dismiss the appeal and affirm the conviction andsentence imposed by the learned trial Judge.
A.G. DE SILVA, J. – I agree.
ABEYWARDENE, J. – I agree.
Appeal dismissed.