100-NLR-NLR-V-73-S.-KANAPATHIPILLAI-Appellant-and-F.-C.-L.-FERNANDO-S.-I.-Police-Responden.pdf
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THAMOTHERAM. J.— Kanapnthipillni r. Fernando
1970Present: Tbamotheram, J.
S. KANAPATHIPILLAI, Appellant, and F. C. L. FERNANDO(S. I. Police), Respondent
S.C. 731169—M. C. Point Pedro, 1S22S
Charge of criminal breach o' trust—Ingredient of dishonest misappropriation—Iiurdenof protf.
In a prosecution for criminal broach of trust tho inference of Hishonert .misappropriation or conversion can reasonably bo drawn if tho proved factaare not enpablo of any innocent explanation and the accused has not at anystage attempted an explanation. In such a case tho Court can rightly takeinto account the accused's failure to give evidence.
A PPEAL from a judgment of tho Magistrate’s Court, Point Pedro.
M.M. Kumarakulasingham,• with S. Parameswaran and M. Kasi
Viswanalhan, for the accused-appellant…..
T. N. Wickremasitighe, Crown Counsel, for the Attorney-General.
Cur. adv. vuU.
July G, 1970. Thamotheram, J.—
The accused-appellant was convicted of criminal breach of trust inrespect of cash Rs. 1,037.11 entrusted to him in his capacity as Managerof Nugavil Ikiyajothy. M. P. C. S. Ltd. The period during which thi3offence va3 alleged to have been committed was stated as between 1.8.04to 23.2. 05.
The accused-appellant was appointed Manager as from 1.8.64 by theCommittee of this Society. This appointment required the approval ofthe Assistant Commissioner for Co-operative Development. The accused-appellant functioned as Manager from 1.8.04, although he had notreceived this approval at the time, and continued to so function evenafter this approval was refused, as efforts were being made to persuade- the Assistant Commissioner to grant this approval.
The evidence is quite clear that between 1.8.04 and 28.2.65 the.arcused-appellant did function a3 Manager during which period he keptthe cash booh PI, and, he alone made entries in it. PI is a record of allcash transactions and any balance shown in hand therein was the balancewhich the accused-appellant should have had at the relevant time. Therule was that any balance over Rs. 100 should be deposited in the Bank.There is evidence that the entries in the cash hook during the relevant'period were in the accused-appellant’s handwriting.
THAMOTTTERAM, J.—Kanapothipillai v. Fernando
us
The witness Vallipuram Rasiah stated that on the day the accused-appeliant was appointed Manager, that is on Z.S.G4, he took charge ofthe stock, cash, and other items of the Society, in the presence of theother officials and the auditor, lie took charge of them as correct. Thiswitness was President of the Society from 29.G.G3 to 25.6.64. He saidthat during his period all balance of over Rs. 100 was regularly depositedin the Bank. The truth of this is established by the fact that when theaccused-appellant- assumed duties on 1.S.G4 he received from the Presidentonly a cash sum of Rs. 46'9S, and this is shown in PI.
The witness Anthony Pillai Ligoris assumed duties as President ofthe Society on 23.1.G5. He detected a shortage according to the cashbook maintained by the accused-appellant himself. He brought this tothe notice of the Committee on 30.1.65. The accused-appellant wasgiven one month notice of termination by letter dated 17.2.Go. Thisnotice read as follows :—“In pursuance of the directive dated 11.2.65issued by the Assistant Commissioner and the decision of the Committeeof Management arrived on 1G. 2.G-5,1 hereby grant 3'ou notice of termina-tion of your service as manager after a period of one month from 17.2.65.It is further directed that you should pay all monies due to the Societywithin the set period This notice was signed by both the President andSecretary. The accused-aiipcllant however, chose to leave his service on
G5. The shortage tliat was reflected in cash book PI was confirmedby two audits that were held. Inspector Rasiah carried out an audit on
G5 covering the period 1.1.G4 to 31.1.G5. He found that theaccused-appellant should have had in hand a sum of Rs. 1,2S9‘8S on31.1.65. •
The accused-appellant was asked to be present at an audit carried outby Inspector Nagalingam Selvaratuain whose audit covered the period
G5 to 30.5.G5. The accused-appellant did not attend this audit.However in maintaining the cash book PI the accused-apj>ellant hadaccepted the sum of Rs. J,2S!) S3 as the opening balance on 1.2.G5.Starting with this opeiung balance Inspector Sclvaratnam found thataccording to PI the accused-appellant should have had in handRs. 1.0S7-11 on 2S.2.G5. That is the date on which he ceased to functionns Manager. The resulting factual position as revealed bj' the cash bookPI maintained by the accused-appellant is as follows. He started to func-tion as Manager on I .S.G4 with a cash sum of Its. 4G‘9S given by thePresident. Jfe should have liail i:i hand on 30.1.05 a sum of Rs. 1,259‘SSand on 2S.2.G5 when lie ceased to Ann lion as Manager ho should havehad Rs. 1.0S7-11. The only sums c f money lie returned were the daitycollections for the last two days he functioned as Afanagcr. Jfe hadfailed to observe (lie requirement tliat cask amounts in liand over Rs. 100should be dcj>ositcd in the Bank. He gave no explanation for the shortage."When Ligoris questioned him the accused-appellant said that becausehe was .being, questioned about the shortage lie would make good theshortage. Ligoris asked the accused-appellant to be present before the.Committee of inquiry," which he refused to do.
548THAMOTHERAlf, J.—Kano path iptfla i v. Ftrnantto :
The real question this court has to decide is whether the above materialis sufficient to establish dishonest misappropriation or conversion tohis own use, cash which was entrusted to liim while he functioned asManager of thi3 Society. An essential particular of criminal breach oftrust is dishonesty. Whoever does anything with the intention of causingwrongful gain to one person or wrongful loss to another person is saidto do that thing dishonestly. I wish to here mention 3 cases referred toin the argument before me and another referred to in Gour’s Penal Lawof India, Stb edition, page 2S61.
In Rex v. Rem viral ne 1 the appellant was convicted of committingcriminal breach of trust in respect of a sum of Rs. 1S7'50. The appellantwa3 entrusted with the sum of money, which comes into a petty cashaccount. He had the right to spend this money as occasion demanded.The appellant's case was that he had with this money bought brass tapsfor his employers. This was found to be false though the Crown producedthe voucher PI containing a receipt for this sum from the alleged vendorof the taps, and declaring that this sum was expended in the purchase oftaps. Koch J. said “ that the burden of proving a charge is always onthe prosecution there can be no doubt. But in a case like this what factshas the prosecution to prove to complete its case ? I am of opinion thatit is sufficient for the prosecution to establish that the sum in questionhad been entrusted to the accused, and if the sum is short when theaccount is taken, it is for the accused to account for it. In Welch 2 theprinciple was laid down and accepted by Ratanlal in his valuable workon Criminal Law that ‘ If a person receives money which he is boundto account for and does not do so, he commits this offence’.” In thiscase there was'a shortage on the basis that one item referred to in theaccounting had in fact not been bought, but that it was falsely asserted' that it had so been. There was therefore in this case something morethan mere shortage. Nevertheless Koch J.’s statement is of generalapplication.
In King v. Ragal 3 it was held that the mere failure on the part of aPost Master to produce a small balance of Re. 1*38 shown in the cashbook kept by him cannot be treated as criminal breach of trust. In lawshortage of a small sum of money is not itself evidence of dishonesty.To justify a conviction there must be direct evidence of dishonesty orsuch conduct.on the part of the accused as would lead to the inferenceof dishonesty or dishonest intent; Bonser C.J. in this case said “ thefirst thing that strikes one i3 the small amount at stake . ..
(If all an accused can say is) ' I had the money and I cannot give anyexplanation of what has become of it’, and it is a sum which he cannot‘ ‘ replace, then there is evidence to satisfy a reasonable man that hehas taken the money without any reasonable prospect of paying it back,
•_ which of course would be a dishonest act. But that a man who i3 foundto have in his safe, when he is suddenly pounced upon 5- cts.: less than
: . 2 (1935) 15 O. It. Xee. SI.* (1846) 1 Den'199.
– • {1901) 6 If. L. X. 314.
THAM OTHER AM, J.—Kanapathipilloi r. Fernando527
his account show to be due by him, and can give no explanation of the5 cts. than that ho had taken it, should be made a criminal is revoltingto one’s idea of justice ". These remarks wero no doubt made in a casewhen the accused was charged under the provisions of Ordinance No. 22of 1SS0 (vide section 392A of the Ceylon Penal Code), but the remarksare again of general application.
In King v. Pulle1 the appellant was convicted of criminal breach oftrust in respect of a sum of Rs. 702 entrusted to him in the capacity ofTreasurer of the Provident Fund of the Govt. Printing Office. Hereceived on various dates during the year, a number of sums amountingto Rs. 10,900*47, all of which it was his duty as Treasurer to pay into theMercantile Bank to the credit of the Fund. He paid in only Rs. 10,257*53in that year, the balance Rs. 702*85 is a sum in respect of which he wascharged. Hutchinson C.J. said “ The matter for court to decide waswhether he has committed breach of trust in respect of that Rs. 702or whether it was merely a case of civil liability ; whether ho haddishonestly misappropriated it or converted it to his own use ….His explanation of the deficiency was that he lent the money to-variousmembers of the Fund in accordance with an established and recognisedpractice. There is no adequate evidence of such a practice; and he hasnot given tho name of the persons to whom he lent Rs.. 702 or anypart of it, and there is no evidence beyond his own statement in proofof the loans. In my opinion tho evidence proves that he dishonestlymisappropriated the Rs. 702.”
Tho Judge in this case stated the general principle as follows:—“ Thereported cases of charges of * embezzlement ’ and of ‘ criminal breach oftrust ’ show that it is not enough for the prosecution merely to provethat the servant who is charged has not accounted for all the moneythat ho has received and for which he was bound to account, for theremay be other explanation of the deficiency besides dishonesty, and theprosecution must prove circumstances from which dishonesty can beinferred. Such a circumstance is, in the present case, an explanationgiven by the accused, which would apparently have been easily capableof proof, but which is not proved, and which the court believes not tobo true.”
In Jaikrishna Das Manohar Das v. State of Bombay3 the SupremeCourt observed " direct evidence to establish misappropriation of thecloth over which the appellants had dominion is undoubtedly lackingbut to establish a charge of criminal breach of trust the prosecution isnot obliged to prove the precise mode of conversion, misappropriationor misapplication by the accused of the property entrusted to him orover which ho has dominion. The pricipal ingredient of the offence beingdishonest misappropriation or conversion which may not ordinarily bea matter of direct proof, entrustment of property and failure in breachof an obligation to account for the property entrusted, if proved may
* {1909) 12 N. L. B.63.* A. I. Jt. 19C0 S.O. SS9 at p. 891.
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THAMOTHETtAM, J.—KcmtpathipilM v. Fernando
in the light of the other circumstances justifiably lead to inference ofdishonest misappropriation or conversion. … Conviction, of a
person for the offence of criminal breach of trust may not, in all cases,bo founded merely on the failure to account for the projicrt-y entrustedto him, or over which he has dominion, even when no duty to account isimposed upon him, but where he is unable to account or render anexplanation for his failure to account which is untrue an inference ofmisappropriation with dishonest intent may readily be made.”
When one looks at all the Cuts proved in the instant case there canbe no doubt that the inferonce of dishonest misappropriation or conversioncan reasonably be drawn. They are not capable of any innocent explana-tion nor has the accused at any stage attempted an explanation. Hisconduct on being informed of the shortage tells against him. Moreoverthis seems to be a case where the court can rightly take into account4he accused’s failure to give evidence. This is not to put the burden onthe accused. The prosecution has placed sufficient evidence in the lightof which the court could justifiably draw an adverse inference, from theaccused’s failure to give evidence.
The appeal is dismissed.
Appeal dismissed.