079-NLR-NLR-V-58-REGINA-v.-G.-G.-GUNEWARDENE.pdf
[Tx tjik Court of Criminal Apfeal]
1956 Present : Basnayake, C.J. (President), de Silva, J., and Sansoni, J.REGINA v. G. G. GUNE WARDENEAppeal No. .5 of 19-56 with Application No. 7S. C. 1—Iff. G. Kurunsgala, 4,793
Co-operative Societies Ordinance, as amended by Act Ho. 21 of 1949—-Criminal breachof trust by ojftcet—Section SOB—“ Books of accounts
Held (by tho majority of the Court), that a conviction for criminal breach oft rust under section 50b of the Co-operative Societies Ordinance may be based onevidence furnished by not only tho account books kept by the accused personhut also by reference to documents other than those hooks.
A 'JL i-PPJSA.L against a conviction in a trial before- tho Supreme Court.
Calvin Jl. de Silva, with 31. f. S. Jayasckcra, for accused-appellant.
V. /J'. Thamolheram, Crown Counsel, for Attorney-General.
Cur. ado. x'ult.
May 7, 1 956. Basxavake, C.J.—
The appellant was indicted on four charges, one of them punishableunder section 50b of the Co-operative Societies Ordinance as amended byAct, Xo. 21 of 19-19, and the other three punishable under section 467 ofthe Penal Code. On the first charge he lias been sentenced to ten years’rigorous imprisonment, on each of the second and third charges to sevenyears’ rigorous imprisonment. He has been acquitted on the fourthcharge.
His conviction on the second and third charges was challenged on theground of misdirection. We arc satisfied that there has been no sub-stantial misdirection on any matter of law by the learned Commissioner,and the appeal in respect of the conviction of those charges is thereforedismissed.
The appeal on the first charge in the indictment was pressed on theground that the charge has not been established by tlie prosecution.
The facts material to this c-harge are as follows :—
The acc-uscd was the Administrative -Secretary of the Weuda WilliHatpattu Co-operative Societies Union. On an audit on the account-books, it was found that he should have had in his hands a cash balance ofRs. 144,329/55, whereas, in fact, he had in cash only a sum ofRs. 32,794/23. On 1.9.53 after an audit lie signed a statement to thefollowing effect:—
“ I, G. G. Gunewardenc, Administrative Secretary of the WeudaWilli Hatpattu Co-operative Societies Union Utd., do hereby certifythat I produce before Mr. Hector Silva. Auditor, for the purpose ofchecking cheques to the value of Rs. 19,708/29, money ordersfor Rs 7,319/71 and cash Rs 5,766/23, making a total of Rs 32,794/23(Rupees thirty-two thousand seven hundred and ninety-four, and centstwenty-three) out of a sum of Rs. 39,507/53 (Rupees thirty-ninethousand fivo hundred and seven, and cents fifty-three) the amountwhich sboidd have been in my custody on 1.9.53 according to thecash book.'
(Sgd.) G. G. Gunewardenc~1.9.53.”
On his own admission, out of a sum of Rs. 39.507/53 ho was able toproduce only Rs. 32,794/23. Ho was unable to account for two sumsof Rs. 100,000 and Rs. 4.S22/02. After a further audit examination hewas called upon by the Commissioner for Go-operative Development on20.11.53 to pay over a sum of Rs. 111,535/32 comprising the followingitems :—
AV. r.
*•' (1) Rahuice in hand on 1.9.53. .. .39,507 53
(According to cash book which was accepted byyou)
Less amount produced by you . .. .32,794 2.3
71.3 .30
Amount by which you have increased the total in pur-chases column and in the general total column on
21.4.53 (vide p. 223 of cash book) … . 100,000 00
Unsupported items of expenses on 21.4.53 (vide
p. 230 of cash book). .. .4,822 02-
535 -32
Section 5On of the Co-operative Societies Ordinance 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 a flairs of a Registered Societyhas been held under section 35 to require any person, being a personentrusted with or having the dominion of any money in his capacityas an ofliccr or a member or a servant of the Society to pay over orproduce such amount of money or balance thereof which is shown in thebooks of accounts or statements kept or signed by such person as heldor due from him as such officer, member, or servant ; and if such person,upon being so required, fails to pay over or produce such amount ofmoney or balance thereof forthwith or to duly account therefor, heshall be guilty of the offence of criminal breach of trust, and shall onconviction he subject to imprisonment of either description for a termwhich may extend to 10 years and shall also bo liable to a fine
It was contended on behalf of the- appellant that■ the entire sumof Rs 111.535/32 was not shown in the books of accounts or statementskept or signed by the appellant- within the meaning of section 50b ofthe Co-operative Societies Ordinance and that therefore the convictionwas had in law. It was conceded that the sum of Rs. 100,000 was shownin the hooks of accounts. It was also conceded that the sum ofRs. (5,713/30 was also shown in the hooks of accounts as duo from theappellant aiul admitted by him as due from him. But it was contendedthat the item of Rs. 4,822/02 was not- shown in the books as due from the
appellant and that for the purpose of ascertaining whether that sum wasdue it was necessary to look at the books of a branch society—TheRambodagalla Society.'
Learned Counsel contended that the words “ shown in the books ofaccounts ” mean appearing on the face of the books kept by the appellantand not ascertained by reference to documents other than those books.
The majority of us are unable to uphold this contention. The sectionauthorises the Registrar to demand the amount shown in the hooksafter an audit. For the purpose of an audit of the accounts of a societyit is necessary to examine not only the books of accounts actually keptby the officer, member or servant but also other books and documentsin order to ascertain whether the items in tho books of accountare supported by receipts, vouchers, bills, etc. It would be taking (oonarrow a view of the words shown in the books of accounts orstatements ” if the section was confined to the interpretation submittedby Counsel. It would be impossible to carry out a satisfactory audit ifthe auditor were confined to the books of accounts kept by the officer,member or servant. Such a construction of the section would negativethe whole object of an audit and cnablo an officer to so falsify the booksas to conceal the fact that any money is duo from him.
The majority of us are of opinion that the appeal on this Count alsoshould be dismissed.
Appeal d ism issed.