REGINA v. C. S. DISSANAYAKE

031-NLR-NLR-V-59-REGINA-v.-C.-S.-DISSANAYAKE.pdf

306•Regina t>. Dissanayake '._
[In the Court of Crime?ax. Appeal] 7. .-' ' :
", : -Present Gratiaen, J. (President), Gunasekara, J., and
' rK. D. de Silva, J. •>-
REGINA v. – C.. S. DISSANAYAKE'
Appeal No. 12 of 1955, .with Application 17 of 1955
._ N.. C. 16—M. C. Panaditra, 2S.930:
Co-operative Societies Ordinance {Cap. 107), as amended by Act No. 21 of 1949—Section50b—“ Criminal breach of trust ”—Burden of proof—“ Shall be guilty of theoffence ”—“ Require any person ”—Penal Code, ss. 3SS, 392a.
Section 50n of tho Co-operative Societies Ordinanco (ns amended by ActNo. 21 of 1949) reads ns follows :—..
“ 50b. It shall be lawful for the Registrar, after the accounts of a' registered Society have been audited as provided in Section 17 or after an' inquiry or inspection into the affairs of. a registered Society has been heldunder section 35, to require any person, being a person entrusted withor haying the dominion of any money in his capacity as an officer or a memberor a servant of the Society, to pay over or produce such amount of money orbalance thereof which is shown in the books of accounts or statements kept orsigned by such person as held or du9 from him ns such officer, member orservant ; and if such person, upon being so required, fails to pay over or pro-duce such amount of money or bnlance thereof forthwith or to duly account-therefor, he shall be guilt}' of criminal breach of trust, and shall on conviction
be subject to imprisonment of either description for a term which mayextend to ten years and also be liable to a fine. ”
Held, ‘ that Section 50b does not create a new offence, also designated“ criminal breach of trust”, containing elements separate and distinct from theelements of the well-known offence bearing the same name and defined inSection 3SS of tho Penal Code. Tlio intention of Section 50b of the Ordinancowas merely to facilitate, in charges of criminal breach of trust against anyofficer of a Co-operative Society, proof of.dishoncst conversion if he has failed topay over or produce or “ duly account for ” monies admitted under his ownhand to bo due by him in his official capacity. In other words, proof of thefacts enumerated in Section 50s furnishes prima facie evidence—indeed, strongprima facie evidence—that the officer concerned had dishonestly converted thefunds to his own use and thereby committed the offence of criminal breach oftrust. No burden, however, is imposed on tho accused person to prove hisinnocence in such a situation, so that if the Court, upon consideration of all theevidence, is left in reasonable doubt as to whether, for instance, the essentinlclement of dishonesty lias been established against him, he must be acquitted.Proof of the faet3 specified in Section 503 does not give rise to an irrebuttablepresumption that tho offence of 44 criminal breach of trust ” lies beencommitted. .
Held further, that the person authorised by Section 50n is entitled, for reasonsor administrative convenience, to nominate some other person to receive themoney in question at a suitable time and place.■. –
j^LPPEAX. against- a conviction in a trial before the Supreme Court.
M. 31. Kumarakulasingham, for Accused-Appellant. -.
V. T. Tluimolheram, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
G K ATI A EX, J.—Jicrjina v. Dissanayake
107
May 20, 3 955. Gratiaex, J.—'. -'. ' .
TJie appellant was the casliier of a Co-operative Society registered underthe provisions of the Co-operative Societies Ordinance (Cap. 107),as amended by the Co-operative Societies (Amendment) Act No. 21 of1919. He was convicted at the ICalutara Assizes of the offence of“ criminal breach of trust ” in the following circumstances :—.-
The accounts of the Societ}' had been audited in Marcli 1953 in termsof Section 17 of the Ordinance, and it appeared from books and docu-ments maintained by the appellant as cashier that he was accountablefor a sum of Rs. 21,099 39 entrusted to him from time to time in thatcapacit3’. A letter PI2b dated 11th May 1953 was thereupon addressedto him by the Deputy Registrar of Co-operative Societies (who wasadmittedly vested by the appropriate Minister with all the statutorypowers of a Registrar) “ requiring ” him “ to pay over the said sum ofRs. 21,099-39 on demand by Mr. D. P. Gunawardene, Assistant Registrarof Co-operative Societies ”. It purported to be a requisition underSection 50b of the Ordinance..
This letter was forwarded to the appellant together with a covering-letter P12a dated 13th August 1953 from Mr. Gunawardene calling uponliim to hand over the monej' in question to Mr. Gunawardene at thelatter’s office at 10 a.m. on IS th May, 1953. No part of the money was, .however, paid by the appellant at the specified time, or at any timethereafter. He was in due course charged with criminal breach of trust,punishable under Section 50b of the Ordinance (as amended by the Actof 1919) which reads as follows :—-
“ 50b. It shall be lawful for the Registrar, after the accounts of .aregistered Society have been audited as provided in Section 17 orafter an inquiry or inspection into the affairs of a registered Society,has been held under section 35, to require a 113^ person, being a per sonentrusted with or having the dominion of any money in his capacityas an officer or a, member or a servant of the Society, to pay over orproduce such amount of money or balance thereof which is shown inthe books of accounts or statements kept or signed by such person asheld or due from him as such officer, member or servant; and if suchperson, upon being so required, fails to pay over or- produce suchamount of money or balance thereof forthwith or to duly accounttherefor, lie shall be guilty of criminal breach of trust, and shall onconviction be subject to imprisonment of either description for a termwhich ma}’- extend to ten 3-ears and also be liable to a line. ”
It is necessar3' to give a moaning to the words “ shall be guilty of tli&offence of criminal breach of- trust ”. The offence itself has not beenseparately defined in either the Ordinance or the amending Act-. Wc-receive guidance, however, from the interpretation consistently given by-the Supreme Court to these identical words in a similar context in Section:-392a'of the Penal Code (introduced by Ordinance No. 22 of 1889) relating-j’to alleged defalcations by public,servants’ Section 50b does not creates :-
108'- .., GBATIAEN, J.—Jtcgina v. Dissantiyolce _ '- _ – '
' a new offence, also designated – ‘ criminal breach of turst ”, containing-’ elements separate and distinct from the elements of the welhknown"offence bearing the same name and defined in Section 388 of the PenalCode. Applying the ratio decidendi of the earlier decisions in The Kingv. JRagal1, Somanandar v. L'duma bebbe 2 and Guna-sekera v. The King3,we hold that the intention of Section 50b of the Ordinance was merely tofacilitate, in charges of criminal breach of trust against any officer of aCo-operative Society, proof of dishonest conversion if he has failed topay over or produce or ” duly account for ” monies admitted under his 'own hand to be due by him in his official capacity. In other words,proof of the facts enumerated in Section 50b furnishes prima facieevidence—indeed, strong prima facie evidence—that the officer con-cerned had dishonestly converted the funds to his own use and therebycommitted the offence of criminal breach of trust. No burden, however,is imposed on the accused person to prove his innocence in such asituation, so that if the Court, upon consideration of all the evidence, isleft in reasonable doubt as to whether, for instance, the essential elementof dishonesty has been established against him, he must be acquitted.
Proof of the facts specified in Section 50b does not give rise to anirrebuttable presumption that the offence of “ criminal breach of trust ”has been committed. That theory must be rejected if we take as aguide to the interpretation of this penal enactment the particular mischiefwhich the legislature intended to remove (as in cases now covered bySection 392a of the Code) and also pay regard to the earlier constructiongiven by the Courts to the language of the earlier penal statute whichmeets a precisely similar difficulty of proof where defalcation by a publicservant is alleged. Parliament could not have conceived that the stigmaof a conviction for “ criminal breach of trust ” involving liability to a• term of imprisonment for 10 years was appropriate to a case where thedishonesty of a man was left in doubt at the end of his trial or was con-clusively negatived. Nor is there compelling evidence in section 50bof an intention to shift the burden of proof to an accused person chargedwith an offence of such gravity.
For these reasons the learned Commissioner quite correctly -directedthe jury that they could not convict the appellant in the present caseunless they were satisfied that he had dishonestly converted to his ownuse the monies admittedly entrusted to him as cashier of the Society.The verdict necessarily.implies that his own explanation at the trial ofhis failure to produce the money was rejected as quite untrue. Theevidence accepted by the jury therefore established that he had failed“ duly to account for ” the shortage in the absence of an explanation,consistent with his innocence, which might reasonably be true. In the .
. result, the Crown discharged the heavy burden of establishing the appel-Jant’s guilt. No complaint was made before us fo the effect that theverdict was unreasonable.,
' We were invited by the defence to quash the verdict on the ground that *the appellant had only been “ required ” to produce the money by a
'(1902) 5 IV. /,. Ft. 314.*(1924) 24 N. T,. It. 140.- ’ ’
■ .*(1952) 53 N. L. Ft. 522.
GRATJAEX, J.—Itcyina v. Dissanajahe
109
person who was nob authorised by section 50b to call for it. The• argument was elaborated as follows :—'.
Only the Registrar or an officer duly vested with the statutory
powers of a Registrar is authorised to "require ” the paymentor production of money so as to satisfy the conditions laid down. bj' Section 50b ; and such powers cannot validly be delegated;
in.addition, the officer authorised by Section 50b must " require ”
the payment (or production) of the money to (or before) himselfand no one else ;
although the Deputy Registrar was vested with the requisite statu-
tory powers, his letter P12B amounted only to an invalid dele-gation to Mr. Gunawardene of the power to “ require ” thepayment or production of the money ;
Mr. Gunawardena alone " required ” the appellant to pay the
money in terms of P12A ; but the appellant wras under noobligation to comply with this demand as Mr. Gunawardeneadmittedly had no power to take action under Section 50b.
The first of these submissions is certainly correct, but the rest of the argu-ment is without substance. The statutory power of the DeputyRegistrar to require the payment of the money, in this case is conceded,and his letter P12B, although some parts of it were drafted in undulylegalistic terms, constituted a valid demand for payment under Section50b. He was of course entitled to “ require ” that the money should bepaid to himself, but he was equally entitled, for reasons of administrativeconvenience, to nominate some other person to receive the moneyat a suitable time and place. The words “ on demand ” in P12B arenot indicative in the present context of a decision by the DeputyRegistrar to delegate or surrender his statutory powers toMr. Gunawardene. On the contrary, Mr. Gunawardene’s letter'P12Ato the appellant was written in accordance with the Deputy Registrar’swishes and under the authority of P12B which it accompanied. Housurpation by Mr. Gunawardene of statutory powers which he did notenjoy was involved at any stage of the the transaction. The lettersP12B and P12A, read together, meant, and were understood to mean,that the Deputy Registrar retained control of the situation throughoutand that he had, on his own initiative, directedJMr. Gunawardene to callfor and receive the money, if forthcoming, at a very early date at a timeand place which was to be notified to the appellant.
It has been brought to our notice that the arguments for the appellanton this issue receive support from an unreported decision pronouncedby another learned Commissioner at the Kandy Assizes on 26th May, 1954—
v. Jayaicardene—S. C. 27jM. C., Polonnaruiva, 11,993. The reasonsset out in our judgment sufficiently explain why we find ourselves unableto adopt the view expressed on that occasion.~-
We dismiss the appellant’s appeal and refuse liis application. Theconviction is affirmed.•–*'_..y
– Conviction affirmed. L. ..