087-NLR-NLR-V-57-SIRISENA-PERERA-Appellant-and-H.-D.-THEDIAS-Inspector-of-Police-Respondent.pdf
1955Present : Gunasekara, J.
STHTSKNA PEEERA, Appellant ., and H. Cl. TMETDTAS(Inspector of Police), Respondent
S. C. 7S5—M. C. Colombo, 2,076/11
Summary trial oj non-stimmnry offence—Appeal prejcrrc<l by accused—Right ofCrown to object io summary proceedings on ground of gravity of offence—Criminal Procedure Code, ss. 152 (3), 33S (2)—Penal Code, s. -157.
In n prosecution for forgery punishable under section 457 of the PenalCode the accused-appellant was tried summarily under the provisions ofsection 152 of the Criminal Procedure Code. The appellant had no objectionto his having been tried summarily, and the Crown had no objection eitheruntil after the appellant had demonstrated that lie was entitled to havo liisconviction set aside on the merits. –
Held, that in the circumstances the gravity of the offence with which theaccused was charged was not by itself.a sufficient ground for remitting thecase for a noil-summary investigation.
j^k.PPKAL from a judgment of the Magistrate's Court, Colombo.Colrtn 11. tin Silv/t, for the accused-appellant.
Arthur Keiincman, Crown Counsel, for the Attorney-General.
‘Cur. tide, rail.
– '* (1011) 12 X. h. R. 172.
July II, 1955. Gitxasekaka, J.—'
The appellant was tried summarily under the provisions of section152 (3) of the Criminal Procedure Code on a charge of having committedan olTcncc punishable under section -157 of the Penal Code by fraudu-lently or dishonestly using as genuine a document which he knew orhad reason to believe to be a forged document. Jfc was convicted ofthis offence and sentenced to one year’s rigorous imprisonment.
Ac-cording to the case for the prosecution the-appellant had beenoccupying a house belonging to one M. E. Pei'era as the latter’s tenantand had left it in August, 1953, after Perera had filed an action againsthim in the court of requests to recover arrears of rent and to have himejected. The document in question (PI), which is dated the 4th August,1953, purports to bo signed by the appellant and 31. E. Perera and statesthat the appellant had been living in a house belonging to Perera andhad on that day “ given over the keys to him without having to pay anyarrears There is no evidence as to the custody from which PI wasproduced before the magistrate’s court, but it was stated in evidenceby both Perera and the proctor who appeared for him in the civil actionthat it had been produced by the appellant at the trial of that action onthe 23rd November, 1953, and Perera stated further that it was not adocument signed by him or by his authority. Perera was also permittedto say in his evidence in chief that ct Pi was sent to the 10. Q. X). withsome other documents ’’. (One similises that the letters E. Q. 35. standfor Examiner of Questioned Documents.) Tho only other witnesscalled in the case Mas the record keeper of the Magistrate’s Court ofColombo who produced, marked P2, the record of the action in thecourt of requests (without stating how lie came by it) and also produced,marked P3, “the report of the E. Q. D.” that was filed in that case.
The report P3 is inadmissible hearsay, and, no doubt for this reason,the learned magistrate docs not refer to it in his judgment. The onlymatter to which he refers as evidence on the issue of forgery is that theexistence of PI is not mentioned in the appellant’s answer in the civilaction, which was filed in September 1953. He holds that if the docu-ment had been in existence at the time it would have been mentionedin the answer. With all respect to the learned magistrate, I am unableto agree that an omission to plead evidence can be a ground for a conclu-sion that the evidence did not exist at the time. Moreover, the answerfiled by the ajjpcllant in the civil case was not in evidence in this case;for although the entire record P2 was produced the only portion of itthat was put in evidence was the report P3.'
The only evidence there is in the case to prove that Pi is a forgery isPerera’s statement that the document was not signed by him or by bisauthority. This evidence is not discussed or mentioned in the learnedmagistrate’s judgment, and it docs not appear whether he would haveacted upon it without corroboration. 'The conviction must thereforebe quashed.
ft was conceded by the learned crown counsel that the convictioncould nut be supported, but lie maintained that a charge of Hu grave an
. offence should not have been tried summarily and that the case shouldthereforo bo remitted to tho magistrate’s court for non-summary proceed-ings. In support of this contention he cited the eases of Shaldou(Inspector of Police) v. Ayosinglio1 and Saliabandu. v. Wijeman Singho-,in which convictions of offences involving forgery or the dishonest use of aforged document were quashed cm the ground that in those eases thecharges should not have been tried summarily under the provisionsof section 1-12 (3) of the Criminal Procedure Code, and the magistratewas directed to take non-summary proceedings. In each of those eases,however, the accused had appealed on tliis ground, contending in effect,that if lie was to be tried he was entitled to the advantage of a trial onindictment after a preliminary magisterial inquiry. In the presentcase the appellant lias no objection to his having been tried summarily,and the Crown had no objection either until after the appellant haddemonstrated that lie was entitled to have the conviction set aside on themerits. Until then it appears that both parties were satisfied with thoprocedure that the learned magistrate adopted in the exercise of hisdiscretion. Neither of them raised any objection at the trial, the accusedhas not made it a ground of appeal that he should not have been triedsummarily, and the Attorney-General has not appealed although lie hasa right of appeal in terms of section 33S (2) of the Criminal ProcedureCode. I do not think that in these circumstances the gravity' of thooffence charged in this case is by itself a sufficient ground for makingan order, in the exercise of the powers of revision vested in this court,remitting the case for a non-summary investigation.
The conviction of the appellant and (he sentence passed on him areset aside and lie is discharged.
' (lull) / C. 1..W. til.
– (toil) n c. l. Jr. li.
Conviction set aside.