088-NLR-NLR-V-26-SILVA-v.-RAHIMAN.pdf
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Present ; Jayewardene A.J.SILVA v. RAHIMAN.
1924.
465—P. C. Balapitiya-t 3,950-.
Apt' al—Orderojdischarge—Sanction ofAttorney-General—Criminal
Procedure Code, *. 192—Cheating—Penal Code, ss. 400 and 403.
An order of discharge under section 191 of the. Criminal ProcedureCode does not amount to an acquittal, and an appeal lies to theSupreme Court from such an order without the sanction of theAttorney-General.
Where a person is charged with cheating and delivery of propertyhas been the result of the deception, the offence disclosed is one*under section 403 and not under section 400 of the Penal Code.
HE accused was charged with cheating under section 400 of
the Penal Code by inducing the complainant to pay Rs. 100on the promise of delivering some rubies. After the evidence ofthe complainant, .the Acting Police Magistrate directed summonsto issue on the accused. When the accused appeared on February25, 1924, before the permanent Magistrate, he was charged fromthe summons and made a long statement. On March 10, the Magis-trate without allowing the complainant to lead any further evidenceacquitted the accused. The complainant appealed against theorder.
H. V. Perera, for. appellant.
August 22, 1924. Jayewardene A.J.—
In this case the accused was charged with cheating, in that hehad induced the complainant to pay Rs. 100 on the promise ofdelivering some rubies. The rubies were not – delivered, andthe complainant charges the accused under section 400 of thePenal Code. The complainant gave evidence before Mr. Alwis.Proctor, who was acting as Police Magistrate and who directedsummons to issue on the accused. When the accused appearedon February 25, 1924, he was charged from the summons andmade a long statement before the permanent Magistrate. Thepermanent Magistrate without allowing the complainant to lead•any further evidence acquitted the accused on March 10, 1924,which was the date fixed for the resumption of the trial. I need notexamine the reasons given by the Magistrate, but 1 may say thatthey are not sufficiently strong to have led hiih to acquit the■accused at the stage at which the order of acquittal was made.The complainant appeals against this order. The learned Magis-trate thought this appeal was irregular because it has not been
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108ft. sanctioned by the Attorney-General under section 336 of theJaybwab- Criminal Procedure Code. There I think, the learned MagistrateDBiot A.J. was mistaken. Orders of discharge under section 191 have alwaysSilva v. been regarded as appealable (see the case of Gunaratne v. Bemado 1'Rodman and the case of Suppiah v, Loku Banda2) where it was held thatan order under section 191 did not amount to an acquittal, butthat it was a discharge of the accused person from which thereis an appeal to the Supreme Court. In view of these judgmentsthe view of the learned Magistrate is erroneous. The offencedisclosed in the evidence of the complainant shows that he wasinduced to part with property as a result of the deception practisedon him. If that is so* the proper section under which the accusedshould be charged is section 403, and a charge under section 403is not summarily triable, but is triable, by the District Courtor the Supreme Court. It has been held in certain cases (see371—P. C. Badulla-Haldummullay No. 7,4193 and 204—P. C.Puttalam, No. 8t75014 that where delivery of property has been theresult of a deception, the offence is pne triable under section 403and not under Section 400. In the former case Pereira J. said: “ Thefacts clearly disclosed an offence under section 403 of the PenalCode, that is, cheating, and thereby dishonestly inducing theperson deceived to deliver any property (namely, money in thiscase) to any person. This is an offence beyond the summaryjurisdiction of the Police Court. I quash the conviction and thesummary proceedings, and remit the case to the Police Courtfor non-summary proceedings/1 I think in this case the rulingI have just referred to applies, and the Magistrate should takenon-summary proceedings under chapter XXVI. of the CriminalProcedure Code. The order of discharge, is accordingly set aside,and the case is remitted to be proceeded with in due course. Imay also point out that the order of the Magistrate acquitting theaccused at the stage at which he made the order is not warrantedby the Code,- and that the order should have* been one of dischargeonly.
Set aside and sent bach.
{1904) 2 Bed. Rip. 32.
(1910) 3 C. H R. 127.
3 S> 0. Min,. of May 1$, 1915.
* S. 0. Min. of March 1,1918.