GARVIN S.P.J.—Supramaniam v. Ganapathipillai.
November 8, 1932. Garvin S.P.J.—
This is an application for a writ of quo warranto to SangarapillaiGanapathipillai who was, on July 8 last, elected to the office of Chairmanof the Village Committee for the Karaitivu subdivision. It is allegedthat the respondent, Sangarapillai Ganapathipillai, was convicted onMarch 23, 1918 by the High Court of .Keddah of the offencet ofattempting to cheat the Government of Keddah. This is admitted bythe respondent.
A Village Committee is elected by the inhabitants of the subdivision,and, in accordance with the provisions of section 16, the Committee electsone of their number to be Chairman.
If therefore a person is disqualified to be a member of the Committee,he is disqualified to be Chairman of that Committee.
Section 18 prescribes the qualifications required of Committee men.The material portion of the section referred to is as follows : —
A person shall be disqualified to be elected or to be a member of anycommittee—
(e) If he has been convicted of theft, fraud, forgery, perjury, orof any infamous crime.
If the application is to succeed, the petitioner must show that therespondent has been convicted of one or more of the crimes specified.
The conviction proved against the respondent was not of theft, forgery,perjury, or of any infamous crime. Of the classes of crimes specifiedthere only remains that of “ fraud ”. Can it be said that a conviction ofan attempt to cheat is a conviction of “ fraud ” within the meaning ofthis section ? There is no crime or offence made punishable in Ceylonwhich is called or known as fraud. Our criminal law is codified andnothing is an offence which is not declared to be so in the Penal Code orany other Statute. There is no offence known as “ fraud ” in any Statuteand there are no such things as Common law offences known to our law.It would seem however that in England Common law offences were wellknown, and among them the offence of cheat or fraud. This offenceinvolved the idea of dishonestly depriving another of property… In TheKing v. Hamilton1 the prisoner was convicted of forgery of certainaccount particulars with intent to conceal a fraud and the question arosewhether he was liable to hard labour under the provisions of 14 & 15 Viet,c. 100, s. 29, by which persons convicted of certain offences were madepunishable with hard labour, among them being “ any cheat or fraud ”.It was held that inasmuch as there was no allegation that the prisonerobtained money or other property by means of the forgery with which hewas charged he could not be said to have been convicted of a cheat orfraud punishable at Common law.
There are many instances of offences made punishable under our law ofwhich a dishonest or fraudulent intention is an essential element, but theywould not be “ frauds ” within the meaning of the English Common lawoffence of “ fraud ” unless the offender deprived another of property.
i (1901) 1 K. B. 740.
GARVIN S.P.J.—Supramaniam v. Ganapathipillai.203
Cheating is one of the offences which involves a dishonest or fraudulentintention but it is not essential, though it is frequently involved in theact, that a person shall be deprived of property—it is sufficient that theperson deceived shall have been induced to do or omit to do anythingwhich he would not have done or omitted to do had he not been so deceivedor so long as the act or omission caused or is liable to cause damage orharm to that person in body, mind, reputation, or property or damage orloss to the Government.
A person convicted of cheating as it is known to our law may or maynot have committed the offence of “ fraud Whether he did will dependon whether he has by his deception dishonestly deprived another ofproperty.
Since the term fraud as it appears in section 18 (e) must be given ameaning, it seems to me that it may only legitimately be interpreted toinclude such offences as would, had they been committed in England, beenpunishable as “ frauds ” under the Common law.
All that is alleged against the respondent is that he attempted to cheatthe Government of Keddah. He did not, whatever his intention mayhave been, deprive that Government of any money or other property. Itcannot therefore be said that he has been convicted of “ fraud ” though itmay have been his intention to defraud.
The Legislature has attached the disqualification to persons convictedof “ theft, fraud, forgery, or of any infamous crime ”. It has not saidthat a person shall be disqualified if he has been convicted of attemptingto commit theft, fraud, forgery, or of attempting to commit any infamouscrime.
The respondent has not therefore been shown to have been convictedof an offence which under section 18 (e) of the Village CommunitiesOrdinance, No. 9 of 1924, disqualifies him to be elected to be a member ofa Village Committee or the Chairman of such a Committee.
It was urged by counsel for the respondent that the convictionscontemplated by section 18 were convictions had in a Court in Ceylon.The Ordinance provides for the regulation of the affairs of villages inCeylon and the provision which has reference to the matter under con-sideration contemplates and applies to persons who belong to theindigenous peoples of the Island and are inhabitants of a village. It doesnot seem at all likely that the Legislature contemplated convictionsoutside Ceylon or intended to, attach a disqualification to convictionsother than convictions by the Courts of Ceylon.
But it is unnecessary to consider this aspect of the question since I amclearly of the opinion that the Legislature has only disqualified personsconvicted of the offences specified in 18 (e) and has not thought fit toattach the same disqualification to persons convicted of attempts tocommit any of such offences.
The application for a writ is refused, with costs -to the respondent.
Application refused.