014-NLR-NLR-V-06-REX-v.-CADERAMEN.pdf
( 67 )
BEX «. CADERAMEN.lfl02
Forged document—Boat licences granted under Ordinance No. 6 of 1865—^
Valuable security—Penal Code, ss. 28, 456, and 459—Amendment of
indictment and conviction—Evidence Ordinance, s. 192—Evidence incivil ease tendered in criminal prosecution—Duty of witness—“ Shall notbe excused from answering any question"—Evidence given voluntarily—
Evidence given on compulsion of Court.
Boat licenses granted under Ordinance No. 6 of 1865 are not valuablesecurities.
[Middleton, J., dissenting:—As the issue of a license to a boat under. the Ordinance No. 6 of 1865 gives to its owner a legal right to share inthe monopoly of landing cargo and passengers, it is a valuable securitywithin the meaning of section 28 of the Penal Code.]
A conviction upon an indictment for fraudulently and dishonestlyuttering forged boat licenses is good under section 459 of the Penal Code.
Where the indictment laid the offence under -sections 459 and 456 of thePenal Code,- and the jury brought in a verdict of guilty under both thosesections, it is open to the Supreme Court in revision to amend the indict-ment and conviction by striking ont section 456, and to pass a suitablesentence under section 454.
In sub-sections 2 and 3 of section 132 of the Evidence Ordinance, theword " compel ” refers to the course taken by the Judge to press a witness,who either refuses to answer questions or asks to be excused fromanswering. It does not apply to a witness who gives his evidencewithout raising any objection and without any pressure on the part ofthe Judge.
A witness is protected against the consequences of what he may saywhile under examination, but if he wishes to prevent his statements frombeing used against him as evidence of an offence previously committed,he must object to reply, and only answer on being compelled by the Court.
Where a person has made a statement in a civil case on oath voluntarily,and without compulsion on the part of the Court to which the statementis made, -it may be used against him on his trial in a criminal prosecution.
A
T the Criminal Sessions of the Supreme Court held inColombo on the 31st July and 1st August, 1902, Nicholas
Caderamen, Bastian Caderamen, and Hugo Perera Gunaratne weretried before Mr. Justice Middleton and a jury. The first accusedwas indicted for uttering certain forged documents, and the secondand third accused for aiding and abetting the first accused in thecommission of the said offence.
It appeared that seven cargo boat licenses had been granted onthe 31st March, 1899, by the Master Attendant to one JohnCaderamen, under the Ordinance No. 6 of 1865, available till the31st December, 1899. The alleged forgery was in respect of thewords following, which appeared on the back of eacb .of theselicenses, namely, “ Transferred over to Mr. N. Caderamen.
(Signed) John Caderamen. ' 10th April, 1900 ”.
( 68 )
1902. The counsel for the prosecution called witnesses to prove thatSeptember It John Caderamen died on the 24th April, 1900, and that a comparisonand^l6. handwritings showed that the words above mentioned were notwritten by him. And one of the witnesses, Mr. J. B. Misso,Secretary of the District Court of Colombo, produced two recordsof that Court, in which certain statements made by the present firstand third accused were recorded, when they gave evidence in thatCourt. One of these caseB (No. 14,502, D.C., Colombo) was institutedby the executor of the late John Caderamen against the firstaccused and another person in order to try the right to a promis-sory note which the first accused claimed as against the saidexecutor. The other case (No. 14,505, D.C., Colombo) was broughtby the first accused against the maker of the same promissory note. ■These two cases being consolidated by order of the District Judge,the first accused (defendant in 14,502 and plaintiff in 14,505) gaveevidence in the District Court, and Mr. Secretary Misso read it tothe jury. The portion relevant to the present prosecution was asfollows:—
*' We (first accused and John Caderamen) had seven cargo boats,which he (John Caderamen) had purchased for me. The licenseswere in his name, but I carried on the business. John said.
‘ bring the licenses, and I will endorse them over to you ’. Thoselicenses were in one of my drawers, and I brought them to him.When I brought them he wanted the licenses endorsed with thewords * Transferred to N. Caderamen ’. I then called in myson Muttiah and got him to endorse the licenses as required.After that was done, John signed underneath. While we weretalking about the licenses, the Yidane Arachchi (Gunaratne, thethird accused) came in quite casually. Bastian and the YidaneArachchi attested John’s signature.
“ Some time after my brother died, a week or so, I took theselicenses to the Master Attendant’s Office and gave them to theclerk, J. M. Perera, in order to have my name registered as theowner of those boats. He refused to register my name withoutthe authority of the Master Attendant. He said he was notsatisfied that I was the owner on the mere production of thelicenses. He. said he- wanted further proof. ”
No objection was ’ taken to the reception of the above evidenceas against the first accused, but it was argued that the evidence ofthe third accused, given in the District Court as follows, and readby Mr. Secretary Misso, was not admissible: —
“ I went there quite casually as usual. I then found John,Nicholas, one of Nicholas’s sons, and Bastian in the office room.I went in there myself, and was offered a seat and sat down.
( 69 )
They were talking of some Boat Company matters. Nicholas 1902.then produced some papers, and his. son was' asked to write11
something on the back of them. John said, ‘ I cannot attend to
these affairs; once before I was called a boatman. I must transferthese over to my elder brother ’. This remark was made in replyto a question from me. ‘Sir, why? Are not these boats yours?
Last time also the license was taken in your name. Why do youwant to transfer them? ' As the boy wrote out each endorsement,
John signed them and asked Bastian and me to sign as witnesses',and we did so- Seven of such documents were signed that day.
I am acquainted with the signature of Bastian Caderamen. Thesignature of B. Cadiramen on the seven boat licenses appears to bethat of second accused. ”
Middleton, J., allowed these statements of the first and thirdaccused to go to the jury, over-ruling the objections of thecounsel for the accused.
The jury brought in a verdict of guilty against all the accused,according to the indictment, which ran as follows:—
“ (1) That you, Nicholas Caderamen, did, in or about the monthsof May, June, and July, 1900. at Colombo, fraudulently anddishonestly use as genuine, by uttering to one J. Matthew Perera,
Chief Clerk to the Master Attendant in Colombo, seven docu-ments, to wit, seven cargo boat licenses drawn in favour of oneJohn Caderamen, and purporting to be respectively endorsedby him in your favour, which endorsements you knew to beforged, the same bearing date the 31st March, 1899, and numbered735 . 755. 803, 761, 819, 835, and 795, respectively, and you have,thereby committed an offence punishable under sections 459and 456 of the Ceylon Penal Code.
“ (2) That on or about the month of April, 1900, atColombo, you, Bastian Caderamen (No. 2 accused) and MandaligeHugo Perera Gunaratne (No. 3 accused), did aid and abet thesaid Nicholas Caderamen to commit the said first-mentionedoffence of fraudulently using as genuine the said seven cargo boat ‘licenses drawn in favour of the said John Caderamen, and pur-porting to be endorsed by him to the said Nicholas Caderamen,numbered 735, 755, 803, 761, 819, 835, and 795, respectively-, byattesting as witnesses to the forged signature of the said JohnCaderamen, deceased, on each of the said documents respectively,knowing at the time you so attested the said signatures that thesame were respectively forged, and that you have thereby com-mitted an offence punishable under sections 459, 456, and 102 ofthe Ceylon Penal Code. ”
( 70 )
1902.
September
and Id .
At the request of the counsel for the accused, Middleton, J.,reserved the following questions for the consideration and decisionof two or more Judges of the Supreme Court:—
Whether he was right in allowing the evidence given bythird accused in the civil action to be read to the jury, taking intoconsideration the terms of section 132 of the Evidence Ordinance?
Whether he was right in holding that there was someevidence to go to the jury, which would support the indictmentas laid against the third accused?
Whether as regards all three accused, a boat license canbe deemed a valuable security so as to render them punishable undersection 456 of the Ceylon Penal Code?
The questions came on for argument before Moncreiff, A.C.J.Middleton, J., and Grenier, A.J., on the 11th of September, 1902.
Walter Pereira (with him H. J. C. Pereira and Elliott), for theaccused.—As regards the first accused, the indictment chargedhim with an offence under sections 456 and 457 of the PenalCode, which relates to the uttering of forged valuable securities.The seven cargo boat licenses, whether issued in terms of theOrdinance 6 of 1865, sect. 23, or Ordinance 4 of 1900, sect. 5, arenot valuable securities at all. Section 28 of the Penal Code definesa valuable security as a document whereby any legal right is created,extended, transferred, or extinguished, or whereby any personacknowledges that he lies under legal liability, or has a certain legalright. The documents in question do not come within thisdefinition. They merely gave power to John Caderamen “to usethe boat hereunder described for the purpose aforesaid (i.e., for theconveyance of goods for hire) from the date hereof (31st March,1899) until the 31st December, 1899. ” This did not create a legalright in John Caderamen. Even if it did, the documents wereof no value whatever at the date of the alleged uttering, for thelicenses were issued on the 31st March, 1899, and made availableonly up to 31st December, 1899. But the date of uttering is laidin the indictment as “ the month of May, June, or July, 1900.”During these months the licenses were of no authority whatever.They were then expired licenses. [Grenier, A. J.—But is it nottoo late now to urge this point? The objection should have beentaken to the indictment when it was read to the accused.] Thispoint has been specially reserved by the Judge, and cannot nowbe dismissed on the ground that the objection comes too late.Until the documents were produced at the trial and seen bycounsel no objection could be taken. These documents are notvaluable securities, but only time-expired licenses. It is submitted
( 71 ;
that section 459 of the Penal Code demands proof of the document 1W2>being false before evidence of uttering it can be given. As to**
the document being false, there is nothing to show that any
person has been injured by it. In Mayne’s Commentary, section463, it is stated, “ there must be a possibility of somebody beinginjured, not deceived only,” and there must be also an intent todefraud. . R. v. Tylney (Roscoe, 0th edition, 578); Queen v. Hodgson(25 L. J. M. 0. 78). No evidence has been led to show a possibleinjury to any person, or' intent to defraud, on the part of the firstaccused. So far as regards the question whether a boat license canbe decreed a valuable security, so as to render them punishableunder section 456 of the Penal Code. This question affects notonly the first accused but also the two others. The next questionis whether, in view of section 132 of the Evidence Ordinance,
Middleton, J., was right in allowing the evidence given by thethird accused in the civil action to be read to the jury. The thirdaccused deposed in the District Court as follows: “ John Caderamensigned the documents and asked Bastian (the second accused) andme to sign as witnesses, and we did so.” This, if admissible,implicates the third accused, but section 182 of the EvidenceOrdinance provides that " a witness shall not be excused fromanswering any question, &c., in any civil or criminal' proceedingupon the ground that the answer to such question may tend tocriminate such witness,” and that ” no answer which a witnessshall be' compelled by the Court to give shall subject him to anyprosecution or be proved against him in any criminal proceeding.”
It is Submitted that the words ” shall not be excused fromanswering any question ” denote' compulsion, and that, as theevidence of admission relied upon by the prosecution was givenunder compulsion, it was not admissible before the jury. In Reg v.
G:>pn1 Dae (I. L. R. 3 Madras 271) the Madras High Court wasdivided in opinion as to the admissibility of the answer. Turner,
C. J., and Innes and Kindersley, J. J., were of opinion that, whenan accused person had made a statement on oath voluntarily andwithout compulsion on the part of the Court to which the state-ment is made, such a statement, if relevant, might be used againsthim on his trial on a criminal charge; but their colleagues, Ker-nan and Muttusamy Aiyar, J.J., were of a different opinion,in Queen-Empress v. Ganu Sovba (I. L. R. 12 Bombay 440) twoJudges followed Reg. v. Gopal Das, but Birdwood,' J., dissenting,stated, “ the compulsion is operative, whether the witness asks to beexcused or gives the answer without so asking.” In this doubtfulstate of authorities in India, the Supreme Court of' Ceylon should
1902.
■September
and 16.
( 72 )
give its careful consideration to the question whether Middleton, J.,
11 was right in allowing the evidence given before the District Judgeof Colombo to be read to the jury. The third and last question is,whether Middleton, J., should have allowed the case of the thirdaccused to go to the jury. It is submitted that there was no evi-dence justifying that course. The fact that the third accusedmerely put his name on the back of the endorsement impugned isnot evidence of abetm'ent. Beg. v. Kapurale (2 N. L. B. 330).
Rdmanathan, S.-O.. for the Crown.—The fact that theindictment mentions section 456 does not render the verdict badunder section 459. The indictment does not in the body of it referto “ valuable securities.” The conviction is good under section459, which refers to the use of false ” documents,” and it is opento this Court to award sentence under section 454. But the con-viction is not bad under section 456. The first accused was inpossession of the boats, which possession, known to the MasterAttendant, was nine points of the law. With possession of the boats,the first accused took the liceuses, purporting to be endorsed, tothe Master Attendant, and demanded the registration of the boatsin his own name as owner. The licenses having been putforward to back his title, it did not matter whether they weretime-expired or not; and as the licenses created a right in favourof John Caderamen to use the boats in the harbour of Colombo,.such licences were ” valuable securities.” The first accused, bymeans of a forged endorsement on those licenses, tried to persuadethe Master Attendant that he was entitled, as de facto possessorof the boats and endorsee of the late John Caderamen, to be theowner of them. The first accused thus intended to defraud andto injure the rightful heirs of the deceased Caderamen. He wastherefore rightly convicted under section 459. The evidenceagainst the third accused was sufficient to justify his case goingto the jury. He is proved to have signed his name as a witness tothe forged endorsement some time after, the 26th April, 1900,because Mr. L. B. Fernando deposed to. the jury that he had aconversation with the first accused on the 26th April, 1900, inthe course of which the latter stated that the deceased JohnCaderamen had offered to transfer the boats to him before the11th April, but he had told the deceased that there was no hurrythen, and what was he to do now? This statement of the firstaccused made to Mr. L. B. Fernando on the 26th April, 1900,showed that the forgery was committed some days after thedeath of- John Caderamen. If the third accused signed as awitness -after the death of John Caderamen, he could have doneso only for a fraudulent purpose. A a regards the admissibility of
( 78 )
the third accused’s admission made before the District Court, the 1902.majority of the Indian Judges were in favour of receiving the* *
evidence.
Cur. adv. vult.
16th September, 1902, Monoheiff, A.C.J.—
The three accused were tried and convicted at the thirdColombo Criminal Sessions, 1902. They were afterwards sen-tenced, the first accused to five years’ rigorous imprisonment,the second to three years’ simple, and the third to three years’rigorous imprisonment. At the trial the Judge reserved thefollowing questions:—
Whether he was right in allowing the evidence given bythe third accused in the civil action to be read to the jury, takinginto consideration the terms of section 132 of the EvidenceOrdinance?
Whether he was right in holding that there was someevidence to go to the jury which would support the indictmentas laid against the third accused?
'Whether, as regarded all three accused, a boat licensecould be deemed a valuable security, so as to render thempunishable under section 456 of the Ceylon Penal Code?
The charge against the first accused was that of fraudulentlyand dishonestly using as genuine, by uttering to the Chief Clerkof the Master Attendant, seven cargo boat licenses drawn infavour of John Caderamen, and purporting to be endorsed byhim in favour of the first accused, knowing the endorsementsto be forged; and of having thereby committed an offencepunishable under sections 459 and 456 of the Ceylon Penal Code.
The second count charged the second and third accused with aidingand abetting the first accused, by attesting the forged signatureof John Caderamen on the boat licenses. The offence charged isthat defined in section 459, which is to this effect:—
“ Whoever fraudulently or dishonestly uses as genuine anydocument which be knows or has reason to believe to be a forgeddocument shall be punished in the same manner as if he hadforged such document.” In my opinion it was intended to chargethe first accused with having made use of valuable securities,with the further intention that if the prosecution failed to provethat the documents used were valuable securities, it would stillbe open to the jury to convict the accused of using “ documents.”
Section 459 makes use of the words “ any document,” and itprovides no punishment; the punishment for the offence set outin the section is the punishment provided for forging suchdocument. But the mention of sect. 456 in the first count indicates
( 74 )
1902. that the prosecution intended to prove an offence which would be** Puni®haWe under section 456. That section deals with the forging— ' of a special class of documents, including valuable securities, andM°A<JjJ1FF’ provides a special punishment, which may extend to twenty yearsrigorous imprisonment; the punishment for simple forgery isprovided in section 454, and extends only to five years’ rigorousimprisonment. The latter section is not mentioned in the indict-ment, but—in my opinion—if it be found that the documents usedin this case were not valuable securities, it was open to the juryto find the accused guilty in respect of " documents,” and for theJudge to sentence them under section 454.
John Caderamen died on the 24th April, 1900. I am satisfiedfrom the evidence that after his death the first accused causedtransfers to be drawn up on the back of seven boat licenseswhich had belonged to his brother John. These licenses were inthe house of the first accused, where the deceased had his office.The endorsements purported to effect transfers signed by JohnCaderamen in favour of Nicholas Caderamen. They were datedthe 10th April, 1900, and were witnessed by two persons, pur-porting to be the second and third accused. As I believe thatthe transfers were executed after the death of John Caderamen, itis clear to me that the second and third accused, if they are the per-sons who witnessed the transfers, fully understood the nature of thetransaction. The first accused apparently thought that by theseendorsements the boats were transferred to him, for he tried tohave the licenses renewed, and in order to do so endeavoured topersuade the Master Attendant that he was the owner of his latebrother’s property. In this be was not successful. If he hadsucceeded, his name would have been entered in the MasterAttendant’s books and in the new licenses as owner. In fact thelicenses did not carry with them the ownership of the boats.They were only licenses for boats, the numbers of which arespecified therein along with ■ the name of .the owner. Theycarried only a right to use them, provided the holder of them hadat his disposal the boats bearing the numbers in each license. Ifthese licenses were valid, they were documents which by virtueof the endorsements purported to confer a legal right upon thefirst accused. The transfers purported'to give the transferee a rightto use the licenses. But it is said that the licenses were on theface of them invalid, because they were only good to the end ofDecember, 1899, from which date they had been of no force oreffect. It was therefore argued that, whatever they may havebeen during the period for which they were given, they hadceased to be valuable securities months before the transfers were
( 75 )
written on the back of them. An accused is not permitted toescape from the offence charged in this case on the mere groundthat the documents in question are defective. It is enough if thedocuments upon the face of them sufficiently resemble the kindof document aimed at to deceive persons using ordinary observa-tion. But he is entitled to escape the provisions of section 456,if it appears that the documents are not such as to impose uponthe persons to whom it is likely that they may be uttered. In thiscase the Master Attendant could1 not possibly have been imposedupon by the transfer of licenses which on the face of them hadexpired some months before. These documents therefore werenot valuable securities, and the accused cannot be punished inaccordance with the terms of section 456, but he may bepunished under section 454. As I read the verdict of the juryand interpret it in the light of the indictment, they found the firstaccused guilty in respect of valuable securities. That they couldonly with justice be allowed to do subject to a reservation of thepoint, because the boat licenses were not valuable securities.But the jury found enough—apart from that question—tocomplete the offence specified in section 459, and made punishableunder section 454 of the Penal Code.
It was urged on behalf of the third accused that the onlyevidence against him was the evidence which he himself gave inthe civil case, and which the Judge allowed to be read to the jury.It was said that that evidence should not have been admitted,because the third accused in the civil case was giving evidenceunder compulsion. Section 132 (1) of the Evidence Ordinanceprovides that a witness shall not be “ excused from answeringany question as to any matter relevant to the matter in issue itwas urged that consequently all evidence is given under compul-sion. It appears that, under the corresponding section of theIndian Code, the Full Court of Madras by a majority was ofopinion that that view was not correct. (R. v. Gopal Das, I. L. R.3 Madras 271.) That decision has been followed in other cases,and I have no doubt of its correctness. It is clear from the useof the word “ compel ” in sub-sections (2) and (3) that theLegislature meant by compulsion the course taken by the Judgewith regard to a witness who either refuses to answer questions,or asks to be excused from answering. It did not mean that awitness who gives his evidence without objection and withoutany pressure on the part of the Judge is under Compulsion. Inmy opinion the evidence was properly admitted.
The conviction, therefore, of the accused being confined tothe offence specified in section 459 and punishable under9-
1902.
September 11and 16.
Monobeivt,
A.CU.
( 76 )
1902. section 454 of-the Penal Code, I assent to the reduction of sentence
September 11 proposed in the judgment of my brother Middleton.and 16. r
Middleton, J.— .
AtCiJ •
The main point for our decision in this case was whethera boat license can be deemed a valuable security. Undersection 23 of Ordinance Ho. 6 of 1865 no boats can be used fortransferring cargo or passengers in the ports of this Island withouta license under tfie hand of the Master Attendant. Such boatshave to be numbered, kept seaworthy, and their tindal and boat-men are to a considerable extent under the authority and controlof the Master Attendant. In return they practically have themonopoly of the passenger and cargo traffic in the harbours, theironly competitors being the ships’ boats. The boat licenses in thiscase must have been issued under that Ordinance, as they expirein the face of them on the 31st December, 1899, and the BoatsOrdinance, No. 4 of 1900, did not come into force till 21st March,1900. The issue of such a license to a boat would therefore givethe owner of the boat a legal right to share in the monopoly oflanding cargo and passengers, and would, in my opinion, “ createa legal right ” within the meaning of section 28 of the Penal Codeso as to make an unexpired boat license a valuable security.
But in the case before us the boat licenses bore on the face ofthem words showing that they expired on the 31st of December,1899, and' the. use of them by the accused must have occurredsubsequently to that date.
I think that when they were used it is clear they were not.valuable securities within section 28 of the Penal Code. Thetest' seems to be under the English Law, whether the instrumentappears to be such as probably might impose upon persons towhom it was likely to be uttered as a true instrument of the deno-mination mentioned in the indictment. (R. v. Wall, 2 East P.C.)
If we apply this test to these licenses the answer must, I think,be that they would not impose on such persons, inasmuch as itappeared on the face of them that they had expired. I think,therefore, in this case that the boat licenses cannot be deemed tohave been valuable securities or documents purporting to bevaluable securities.
The next question is whether I was right in allowing theevidence given by the third accused in the civil action to beread to the jury, taking into consideration the terms of section 132of “ The Evidence Ordinance, 1895. ” Looking at the wording ofthe sub-sections (2) and (3), the decision of the majorities in theIndian Courts in the cases of Reg. v. Oopal Das {3 Madras 271),
( 77 )
and in Queen-Empress v. Qanu Sonba (12 Bombay 440), I am ofopinion that I was light in admitting the evidence in question inthis case. I am still also of opinion that I was right in holdingthat there was sufficient evidence to go to the jury as regardsthe third accused; as, if the evidence given by him in the civilaction was admissible, there was then the evidence of Fernandoand the Master Attendant’s clerk as regards the first accused’sconduct and acts which would, in my opinion, have a distinctbearing on the circumstances under which he (3rd accused) allegedhe had attested these documents. In my opinion the jury in thiscase laid little or no stress on the fact as to whether these docu-ments were valuable securities or not. That is a question onlywhich affects the punishment, and the indictment in this case didnot aver they were valuable securities, but that the offence allegedagainst the accused was punishable under section 456. In myopinion the jury based their finding on the belief that theseendorsements had been fraudulently and dishonestly made andwitnessed, and the documents used, with a view to put the firstaccused in the position of prima facie owner of the boats againstthe persons entitled under the last will of John Caderaonen, andtheir finding was virtually .without reference to the questionwhether the documents were valuable securities or not. Underthe circumstances ofthecase,I think it would, notbe in the
interests of justice ifthisCourt held that, as on thelaw these
documents were not valuable securities, therefore these men areentitled to be acquitted. In my opinion the order which justicerequires, and which we have'power to make, is that the accusedshould be deemed tobeguiltyunder section 459 aspunishable
under section 454 oftheCode,and 1 would thereforeadjust the
sentence according to the maximum penalty under section 454,and sentence the first accused to three years’ rigorous imprison-ment; the second accused to two years' simple imprisonment; andthe third accused to two years’ rigorous imprisonment.
Gbenier, A.J.—
The late John Caderamen, who was a Proctor practising in theDistrict Court of Colombo, and who died on the 24th April, 1900,was, amongst other property, possessed of seven cargo boats, forwhich he held licenses from the Master Attendant. At the timeof, and before his death, these licenses were in the custody of thefirst accused, who was his elder brother. In May, June, or August,1900,—there seems to be some uncertainty about the time, thefirst accused took these seven licenses to the Master Attendant’sclerk, J. M. Perera, and requested a transfer to his own name.
1902.
September 11and 16.
Middleton,
J.
( 78 )
1002. At the time he so produced these licenses they bore the following
September 11 endorsement: “Transferred to N. Caderamen; John Caderamen., ”and IS. ,
– J. M. Perera did not accede to the first prisoner’s request, and,
GBsiraBB, apparently on a later occasion, the first prisoner produced a willexecuted by John Caderamen in 1889 as sufficient authority for thetransfer, when Perera told him he had knowledge of a later will.
I have stated these facts as they disclose the way in which theseendorsements, which are alleged to have been forged, first came tothe knowledge of Perera, and through him presumably to the personsbeneficially interested in the estate of the late John Caderamen.
Subsequently, in some proceedings before the Additional Dis-trict Judge, Mr. Dias, in cases Nos. 14,502 and 14,542, which wereconsolidated, all the three prisoners were examined as witnesses,and gave evidence to the effect that the endorsements on the boatlicenses were, in point of fact, made by the late John Caderamen,and that the second and third prisoners attested his signature.
The Crown presented an indictment against -the prisoners,charging them as follows: —
“ (1) That on or about the months of May, June, and July 1900,at Colombo, you, Nicholas Caderamen, did fraudulently and dis-honestly use as genuine by uttering to one J. Mathew Perera, ChiefClerk to tbq Master Attendant in Colombo, seven documents, to wit,seven cargo boat licenses drawn in favour of one John Caderamen,and purporting to he, respectively endorsed bv him in your favour,which endorsements you knew to be forged, the same bearing datethe 31st March, 1899, and numbered 735, 755, 803, 761, 819, 835,-and 795, respectively, and you have thereby committed an offencepunishable under sections 459 and 456 of the Ceylon Penal Code.
“ (2) That on or about the month of April, 1900, at Colombo,you, Bastian Caderamen (No. 2 accused) and Mandalige HugoPerera Guneratne (No. 3 accused), did aid and abet the saidNicholas Caderamen to commit the said first-mentioned offence offraudulently using as genuine the said seven cargo boat licensesdrawn in favour of the said John Caderamen, and purporting to beendorsed by him to the said Nicholas Caderamen, numbered 735,755, 803, 761, 819, 835, and 795, respectively, by attesting aswitnesses to the forged signature of the said John Caderamen,deceased, on each of the said documents respectively, knowing atthe time you so attested the said signatures that the same wererespectively forgedi, and you have thereby committed an offencepunishable under sections 459, 456, and 102 of the Ceylon PenalCode. ■*
No objection was taken to the indictment on any ground; theprisoners pleaded to it, and, in the result, the jury found them all
( 79 )
guilty- At the close of the case for the prosecution, however, it 1002.would appear that the counsel for the third accused submitted11
there was no case to go to the jury on the indictment as laid——’
against his client, objection having been previously taken to thereception of the evidence given by the third prisoner in theconsolidated civil cases, to which I have already referred. Thelearned Judge thought there was some evidence which the jurymight consider and, accordingly, allowed the case to go. Even atthis stage I do not find that any objection was taken to theindictment, that it was not supported by the evidence, or that itwas at variance with it, but I understand that counsel for the thirdprisoner addressed the jury generally on the law and facts, andcontended that the boat licenses could not be deemed “ valuablesecurities " so as to make the accused punishable under section 456of the Penal Code.
It is manifest, therefore, that the learned Judge’s attention wasfirst pointedly drawn to the question whether, as a matter of law,the boat' licenses could be deemed “ valuable securities ” or not,after the conviction of the prisoners. I apprehend that on thispoint, as on the other point in regard to the reception of theevidence given in the civil cases, the learned Judge should havebeen addressed before the case went to the jury and his rulingobtained. However, this was not done, and on the learned Judgeconsenting to reserve the question in regard to the boat licenses,the counsel for the other two accused promptly, and for the firsttime, raised the same point.
The case now comes before us upon three questions, whichwere reserved 'by the learned Judge. I answer the first andsecond questions in the affirmative. I think that the evidencegiven by the third, accused in the civil action was rightly admittedby the Judge, and that there is nothing in the terms of section132 of the Evidence Ordinance which operated against its admis-sibility. The effect of this section was discussed in the case ofThe Queen v. Gopal Das (I. L. R. 3 Madras 271), and thequestion whether certain evidence had been properly admittedunder this section was referred1 to a Full Bench of five Judges, anda majority of three held that the deposition had been properlyadmitted, because it was made voluntarily and without compulsionon the part of the Court. The facts were these. A suit wasbrought under the summary procedure described by chapter 39of the' Civil Procedure Code upon a promissory note executedjointly by A and his son B. B filed an affidavit and obtainedleave to defend, and gave evidence at the trial on his own behalfB was subsequently tried for forging his father’s signature, and
( 80 )
1902. t the affidavit and depositions of B were admitted in evidence againstSeptember 11 him. A majority of the Judges held that the depositions had
’ been properly admitted, and the Full Bench held that the affidavit,
°*A J™*’ *00’ k®en properly admitted. To my mind' both the affidavitand the depositions were made voluntarily and not under com-pulsion, and I can see nothing in the disagreement by the Benchbeyond an attempt by the minority to draw a very subtle andindefinite distinction between evidentiary materials of a closelycognate nature, adduced, under almost similar conditions as regardstheir voluntary character. We were asked by Mr. Pereira toadopt the view taken by this minority of the Madras High Court,and hold that the evidence objected to by him was inadmissible.Personally I would prefer to side with the majority, especiallywhere the strong inclination of my own opinion is that theevidence in question was admissible under section 132. Theruling in this case of The Queen v. Gopal Das was followedin the case of Queen-Empress v. Sarny Appa (I. L. R. 15 Madras63), and the Calcutta High Court in the case of Digenbar Holder v.fifohan Sardar approved of the ruling in the cases of The Queen v.Gopal Das and Queen-Empress v. Ganu Sonba. It is abundantlyclear, therefore, that protection is afforded only to answers whicha witness has objected to give, or which he has asked to be excusedfrom giving,'' and which he has then been compelled by the Court .to give. The whole effect of these decisions is very aptly summedup in Mr. Field’s note to section 132 of the Indian Act. Hesays:“ The result of these cases is that a witness is protected
against the consequences of what he may say whilst underexamination, but if he wishes to prevent his statements frombeing used against him as evidence of an offence previouslycommitted, he must object to reply, and only answer on beingcompelled by the Court. ”
In this case I find that the third accused did not give hisevidence under compulsion, that he never objected to reply, andonly answered when the Court compelled him to do so, and Itherefore agree with the learned Judge that the evidence wasadmissible. It is, I may add, rather a remarkable commentaryupon the objection taken to the admissibility of the evidence sofar as regards this" prisoner, that the first and second prisonersadopted the statements made by them in the consolidated casesas their version of the transaction.
Having thus found against the third prisoner on the first ques-tion, we have to determine whether the learned Judge was rightin holding that there was some evidence to go to the jury whichwould support the indictment as laid against the third prisoner.
( 81 )
Now, it is plain that if there was no evidence to go to the jury « 1802.the learned Judge would have acted under section 234 of the Sep^^ig 11
Criminal’ Procedure Code and directed the jury to return a verdict
of “ not guilty. ” In considering this question, therefore, we feelthis difficulty, that we cannot place ourselves in the position ofthe jury and say what parts of the evidence upon which the casewas left to them weighed with them in the verdict they gave.
That there was some evidence to support the indictment as againstthe third prisoner appears clear from the way in which the secondquestion reserved has been formulated. The evidence, againsthim, therefore, so far as this Court is concerned, must be gatheredfrom the depositions made by the third prisoner in the consolidatedcases. Those depositions having been rightly admitted. The thirdprisoner, by his own admission, has committed himself to theposition that John Caderamen made these endorsements on theback of the boat licenses, and that he attested them as one of thewitnesses. Either this statement is true or it is false. If, as thejury found, John Caderamen did not make these endorsements,then it necessarily follows that the third prisoner’s statements arefalse. The question then naturally arises:If the third prisoner
attested certain documents which he knew contained forged en-dorsements, did he do so innocently or ignorantly as was suggested,or was he aware that the documents were intended to be usedfraudulently and dishonestly? That the third prisoner knew verywell to what use these documents were going to be put, or wouldbe put, is, I think, perfectly clear from his own evidence, wherehe says:"I went there quite casually as usual. I then found
John, Nicholas, one of Nicholas’s sons, and Bastian in the officeroom. I went in there myself, and was offered a seat and satdown. They were talking about some Boat Company matters.
Nicholas then produced some papers, and his son was asked towrite something on the back of them. John said, ‘ I cannot attendto these affairs. Once before I was called a boatman. I musttransfer these over to my elder brother. ’ This remark was madein reply to a question from me:‘ Sir, why? are not these boats
yours? Last time also the license was taken in your name. Whydo you want to transfer them? ’ As the boy wrote out eachendorsement, John signed them and asked Bastian and me tosign them, and we did so.
It is absurd to suppose that the third prisoner thought that thefirst prisoner would put these documents into his pocket and makeno use of them whatever. The inference is a reasonable one, andthe jury, I take it, drew the same inference—that in attestingthese documents as a witness he helped, or, in the language of
( 82 )
1902. , the indictment, “ aided and abetted
the first prisoner to commit
A
September 11 ^e offence of fraudulently using as genuine the said licenses.
J&4
man who aids or abets another in the commission of an offence
Gbenieb,
A.J.
like this, which, by reason of its secrecy, is very often difficult todetect, does not go about publicly with his principal, when thatprincipal ventures out to make use of forged documents. It wasnot to be expected that the third prisoner would have accompaniedthe first prisoner to the Master Attendant’s Office, and thus openlyshow himself a confederate of the first prisoner in this transac-tion. The third prisoner gave no evidence on his own behalfexplanatory of the circumstances proved against him, and whichex facie were not of an innocent or exonerating, but of quite acontrary, character; and I therefore think that the evidence thatwas left to the jury was sufficient in law to justify their verdict.In dealing with this part of the case, I have felt throughout thatI have, in a great measure, placed myself in the position of thejury on a question of fact, which was essentially within theirprovince, but, as the point has been submitted, I have no hesi-tation in finding as I have done. The jury, I have no doubt,weighed the evidence very carefully, considered everything thatwas addressed to them by the prisoner’s counsel, and then cameto the conclusion they did.
This disposes of the first and second questions which affect thecase of the third prisoner only.
As regards the third question, a good deal of argument wasaddressed to us, and I think there can be no doubt that a boatlicense does not come under the description of the term “ valu-able security ” as defined in section 28 of the Penal Code. Icannot see that any legal right is created by a document of thischaracter, which is simply a license to use a boat in the harbour’of Colombo for a certain definite period.’ These boat licensesexpired on the 31st December, • 1899, and it was not till May, June,or August, 1900, that the. prosecution alleges that they wereproduced to the Master Attendant’s clerk by the first prisoner.The illustration to section 28 contains the obvious case of a billof exchange, which contains an endorsement by which the rightto the bill is transferred to any person who may become thelawful holder of it. • No cases analogous to the case of a boatlicense were cited to us, and I do not think we would be justifiedin including a document of this character in the term “ valuablesecurity. ”
How does this affect the third question that was referred? Itwas contended for the prisoners that if a boat license is not a“ valuable security ” the prosecution entirely falls to the ground,
( 83 )
in that the indictment alleges that the prisoners were punishable 1002.under section 456 of the Ceylon Penal Code, in which the term**
“ valuable security ” occurs. It was said that the intention of the
Crown was, by the insertion of section 456 in the indictment, to 6^BB’describe these boat licenses as “ valuable securities, ” and it wasurged that if they were not “ valuable securities ” they were notpunishable under section 456.
The Solicitor-General, without abandoning the position thathe took up that these documents were “ valuable securities, "contended that even if they were not to be considered as such,the conviction was good as a conviction under section 454. It istherefore necessary to examine the indictment as presented bythe Crown.Thefirst charge is undersections 459 and456.
Section 459runsas follows:“ Whoever fraudulently ordis-
honestly uses as genuine any document which he knows or hasreason to believe to be a forged document shall be punished inthe same manner as if he had forged such document. ”
This section isa general one, anddoes not describeany
particular kind of document as sections 455 and 456 describe, butmentions “ any document, ” and the latter part of section 459, Itake it, refers to the punishment prescribed in each of the threesections 454, 455, and 456 for the offence of forgery of thedescription given respectively in sections 452, 455, and 456.
Now, the term '* document ” is defined by section 27 of thePenal Code,anddenotes “ any matterexpressed or described
upon any substance by means of letters, figures, or marks, or bymore than one of these means, intended to be used, or whichmay be used as evidence of that matter. ”
Next, to ascertain the meaning of the term “ forgery ” we haven to go to section 452, which says :“ Whoever makes any false
document or part of a document with intent to cause damage orinjury to the public or to any person, or to support any claim ortitle, or to cause any person to part with property, or to enter intoany express or implied contract or with intent to commit fraud,or that fraud may be committed, commits forgery, ” and section453 says:“A person is said to make a false document, who
dishonestly or fraudulently makes, signs, seals, or executes adocument or part" of a document, or makes any. mark denotingthe execution of a document, with the intention of causing it tobe believed that such document or part of a document was made,signed, sealed, or executed by or by the authority of a person bywhom or by whose authority he knows that it was not made,signed, sealed, or executed, or at a time at which he knows thatit was not made, signed, sealed, or executed. ”
( 84 )
1002.
September 1and 18.
Grenieb,
A.J.
It go63 without saying that the boat licenses in question withthe forged endorsements on the back of them fall within thedescription given of a false document, and are documents withinthe meaning of section 469. These are the documents which thefirst prisoner is alleged to have fraudulently and dishonestlyused as genuine, knowing the same to be forged, and in respectof which the jury by their verdict found that they were madeuse of with the intention of defrauding those entitled in law tothe estate and effects of the late John Caderamen.
Does, therefore, the fact of the indictment mentioning section456, as the section under which the offences charged arepunishable as regards all the prisoners, necessarily imply thatthey must be punished under this section, and under no>other?
I do not think so, for not only do the charges in the indictmentsay that the prisoners have committed an offence punishableunder section 456, but also under 459, that is, that they arepunishable in the same manner as if' they had forged suchdocuments. If, therefore, these documents' are not “valuablesecurities, ’’ and the prisoners are not punishable under section456, they are clearly liable to be punished under section 454,which prescribes the punishment for a case of this description.
I do not think that it was essentially necessary that theindictment should have made specific reference to section 454.On an' indictment charging a prisoner with murder, it hasalways been ‘considered opento the juryto find theprisoner
guilty of the lesser offence of culpable homicide not amountingto murder, or even of the offence of voluntarily causing grievoushurt. Cases have gone to the jury over and over again on thepresiding Judge’s direction to this effect, and by a parity of nreasoning Icannot see anyreal groundof objectionto the
conviction in this case. It was enough that the jury found bytheir verdict that the first prisoner fraudulently and dishonestlyused these false documents, knowing them to be forged, and thesecond andthird prisonersaided andabetted himin the
commission of the said offence. At best the objection is sopurely technical, that I refuse to entertain it in the interestsof justice. I fail to see in what way the substantial rights ofthe prisoners have been prejudiced. A conviction under section454 differs,as regards the term of imprisonment,from a
conviction under sections 455 and 456; and all the prisonershave been sentenced within the term of imprisonment prescribedby section 454.
In my opinion, the conviction was right and must be affirmed.