066-NLR-NLR-V-67-S.-PONNADURAI.-Appellant-and-M.-DE-S.-RATNAWEERA-Labour-Officer-Department-of.pdf
1964Present: T. S. Fernando, J.S. PONNUDUBAI, Appellant, and M. BE. S. RATNAWEERA(Labour Officer, Department of Labour), Respondent
S. O. 282j1963—M. G. Colombo, 15568!A
Appeal from a judgment of the Magistrate’s Court, Colombo.
M.Timchdvam, Q.G., with V. Kumarastoamy and Mark Fernando,for the accused-appellant.
W. Abeyekoon, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
October 13, 1964. T. S. Fernando, J.—
The accused-appellant was convicted in the Magistrate’s Court ofColombo on three counts which alleged the commission by him of threeoffences in contravention of section 15 of the Employees’ ProvidentFund Act, No. 15 of 1958, and punishable under section 37 of the sameAct. The three offences related to alleged failures on the part of theaccused-appellant to pay to the Employees’ Provident Fund his contribu-tion for a specific month in respect of three specified employees.
Two questions of law were raised before me, one of these being a ques-tion of the want of jurisdiction in the Magistrate’s Court of Colombowhich was not raised in the Magistrate’s Court and which has not beenspecified even in the petition of appeal. After hearing argument forboth sides I dismissed the appeal but, in view of the technical natureof the questions, decided to set down later my reasons for the dismissal.Those reasons are shortly stated hereunder :—
In regard to the question of want of jurisdiction in the Magistrate’sCourt, it was argued that the obligation cast by the Act on an employerwas to pay to the Fund and that there is no indication where the Fundwas located. In these circumstances, counsel contended, the offencewas committed where the place of work of the employer and the employeeswas situated, viz.,at Jaffna. I am indebted to Mr. Colvin R. de Silva,one of the senior counsel of this Court who was present in Court at thetime of the argument, for drawing my attention to Begulation 7 of theRegulations made by the Minister by virtue of the powers vested in himby section 46 of the Act and published in Gazette No. 11,573 of October 31,1958 which disposes of the objection relating to absence of jurisdiction.Regulation 7 requires every employer who is liable under the Act to paycontributions to send them to the Central Bank of Ceylon. That Bank,it is well-known and not disputed, is situated in Colombo. The failureto pay at Colombo therefore constituted the offence, and the Magistrate’sCourt of Colombo was the proper court to entertain the complaint.
The other question related to the admission in evidence of the documentPI, mi extract made by a witness of part of the contents of certainbooks or records kept by the accused at his place of business. It wascontended on the accused’s behalf that an extract compiled by a witnessafter examination of books or records does not constitute secondary
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evidence of the contents of those books or records. As the notice men*tioned in section 66 appears to have been given in this case, secondaryevidence of the documents could have been led by the prosecution.Section 63 (5) of the Evidence Ordinance embraces within the defini-tion of secondary evidence oral accounts of the contents of a documentgiven by some person who has himself seen it. Although PI was admittedin evidence as a document, what happened in Court was substantiallythe giving by the witness of an oral account of the contents of the docu-ments he had seen and examined at the place of work of the accused. PIwas utilised by the witness for nothing more than refreshing his memory.The second question of law was also therefore of no avail against the orderof conviction.
Appeal dismissed.