SIYAMBALAGASTENNA v. O. I. C. CRIMES, POLICE STATION, KANDY

010-SLLR-SLLR-1998-1-SIYAMBALAGASTENNA-v.-O.-I.-C.-CRIMES-POLICE-STATION-KANDY.pdf


78
Sri Lanka Law Reports
(1998) 1 Sri LR.
SIYAMBALAGASTENNA
v.O.I.C. CRIMES, POLICE STATION, KANDY
SUPREME COURT
P. S. DE SILVA, CJPERERA, J. AND
SHIRANI BANDARANAYAKE, J.
S.C. APPEAL NO. 146/96
C. KANDY APPEAL NO. 150/92M.C. KANDY NO. 59492
9TH OCTOBER, 1997.
Penal code – Criminal Breach of Trust – S. 392 of the code – Alteration of charge- S. 167 of the Code of Criminal Procedure Act
The accused who was charged with criminal breach of trust of a sum ofRs. 11,065.65 was convicted by the Magistrate of that offence, but in respectof a sum of only Rs. 1,063.95.
Held:
The Magistrate did not 'alter' the charge within the meaning of S. 167 of theCode of Criminal Procedure Act.
sc
Siyambalagastenna v. O.I.C. Crimes, Police Station, Kandy(G. P. S. de Silva, CJ)
79
APPEAL from the judgment of the High Court, Kandy.
A S. M. Perera, PC with D. R. Ashok and M. S. Janaki Siyambalagastenna forthe accused-appellant.
Dappula de Livera, SSC for the complainant-respondent.
Cur. adv. vult..
27th October, 1997
G. P. S. DE SILVA, CJ
The charges preferred against the appellant in the Magistrate's Courtwere as follows:
Criminal Breach of Trust of a sum of Rs. 11,065/65 whilst beingthe Manager of the Kandyan Art Association during the period1.4.76 to 31.12.76, an offence punishable under section 392of the Penal Code.
At the time and place aforesaid, failed to pay the telephonebills for May, June and July amounting to a sum ofRs. 663/95 and made a false entry in respect of the payment,an offence punishable under section 467 of the Penal Code.
After trial, the appellant was acquitted on charge No. (2); on chargeNo. (1) he was convicted of having committed criminal breach of trustof a sum of only Rs.1,063/95. The principal submission advanced onbehalf of the appellant was that the Magistrate "altered" chargeNo. (1) which alleged criminal breach of trust of a sum ofRs. 11,065/65, inasmuch as he convicted the appellant of criminalbreach of trust of only Rs. 1,063/95; that the Magistrate having"altered" the charge in his judgment failed to comply with themandatory provisions of section 167 of the Code of Criminal ProcedureAct; such failure, it was contended, vitiated the conviction.
On an examination of the evidence at the conclusion of the trial,the Magistrate found that the appellant has committed criminal breachof trust of a lesser sum of money than the amount stated in the charge.The penal section under which he was convicted was the same asthe section alleged in the charge; all other particulars such as the
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Sri Lanka Law Reports
(1998) 1 Sri LR.
time and place of the offence were the same, except that the quantumof money in respect of which the offence was committed was lessthan what was stated in the charge. On a consideration of these facts,I am of the view that the Magistrate did not "alter" the charge withinthe meaning of section 167 (1) of the Code of Criminal ProcedureAct. The appellant was convicted of the same charge, the onlydifference being that the offence was committed in respect of a lessersum of money than what was set out in the charge.
In this connection it is not without significance that section178 (1) of the code would have permitted the Magistrate to haveconvicted the appellant of an offence under section 389, (if the factswarranted such conviction) although he was charged with an offenceunder section 392 of the Penal Code. Illustration (a) to section 178of the Code makes this position very clear. But in the instant caseeven the penal section remained unaltered. I accordingly hold thatthere was no "alteration" of the charge within the meaning of thesection 167 of the code.
For these reasons the conviction and sentence are affirmed andthe appeal is dismissed.
PERERA, J. – I agree.
BANDARANAYAKE, J. – I agree.
Appeal dismissed.