Present: Shaw J.
THE KING v. BABA SINGHO et al.
to S—D.C. Negombo, 3,273.
Fraudulentlyobtaining decree—Penal Code,s.207—Forgery disclosedin
evidence—Power of Attorney-General to commit case to DistrictCourt on charge under s. 207 ignoring forgery.
It iswithin the discretionof theAttorney-General todirectto
what Court a case shall becommitted,and for whatoffencehe
shall be’ indicted.It is only in, some extreme cases that the Court
of Appeal should interfere -with the discretion so given to' himand direct a trial in a different Court.
Wherethe evidence showedthattheaccused wasguiltyof
forgery which was not triable by a District Court, the Appeal Courtrefused to direct a new trial before the Supreme Court.
1 J^'HE facts appear from the judgment.
Bawa, K. G., for accused, appellants.
Grenier, C.G., for the Crown.
February 4, 1919. Shaw J.—
In this case, the first and- second accused have been convicted,under section 207 of the Penal Code, for fraudulently obtaining adecree against two women named Babi Nona and Alice Nona for asum not due. The third and fourth ^accused have been convicted
1 (1898) 3 N. L. R. 170.
of aiding and abetting the offence. The first and – second accusedhave been sentenced to one year’s imprisonment, and the third andfourth to six months’ imprisonment. The evidence put forwardon behalf of the prosecution is to the effect that the second accusedat one time kept the woman Babi Nona as his mistress, and sheleft him some years ago, and obtained an order for maintenanceagainst him, and was living with her mother, Alice Nona, andremaining in possession of a properly which the second accusedhad given to her prior to the maintenance proceedings. She hadalso sometime ago taken some abortive proceedings against thesecond accused for robbery. It is suggested that the acts whicnthe second accused has been guilty of—the subject of the presentcase—were inspired by anger at his former mistress and at herconduct towards him. The story told relating to the presentproceedings is that the second accused, in company with the firstaccused, who is his servant, went to a Mr. Abeyratne, Proctor ofth.9 Supreme Court, Negombo, and gave him instructions to takeproceedings in the Court of Bequests against Babi Nona and Alice, Nona on a promissory note alleged to have been given by them tothe first accused. The first accused signed a proxy appointingMr. Abeyratne as his proctor in the ordinary form, authorizing him,amongst other things, to proceed to judgment against the defendants.After some difficulty in effecting service, the process server appearsto have affixed the summons to the premises where he understood• the defendants lived. Before the case came on in Court the secondaccused is said to have come to Mr. Abeyratne’s office, togetherwith the third and fourth accused, who were mistresses of hisservant, the first accused. These two women are said to havepersonated the 'defendants in the Court of Bequests case, Babi Nonaand Alice Nona, and to have expressed to Mr. Abeyratne theirwillingness to submit to judgment. Thereupon Mr. Abeyratne,believing their story, attended with them in Court, and the twowomen, when the case was called, stepped forward and consentedto judgment, pretending to the Court that they were the defendantsin the case. The second accused was present at the time. Sometime after, in consequence of Mr. Abeyratne finding difficulty ingetting his fees, he commenced proceedings under section 219 ofthe Code for the examination of the judgment-debtors. It was thenalleged hy Babi Nona and Alice Nona that they knew nothingwhatsoever about the case, that they had never seen the promissorynote, that they had not attended at Mr. Abeyratne’s office or theCourt, and that the whole thing was a fraud upon them got upby the second accused. The District Judge has heard the case,and he has written a very careful judgment upon.the facts provedbefore him. He has accepted the evidence. of. the proctor, Mr.:Abeyratne, and there seems to be no reason whatsoever to castany doubt upon that gentleman’s evidence, or upon his identification
( M* )
The King*.Beta Bingho
of the women who appeared before him and in Court, and it isperfectly dear, in my opinion, that Babi Nona and Alice Nona hadno knowledge of these proceedings, and did not consent to thejudgment which was obtained against them by the accused.
It is suggested, on behalf of the first accused, that he did not, infact, obtain the decree for a sum not due, because all he did wasto instruct the proctor to take proceedings, and that he was notpresent when the case , came on in Court, and took no furthersteps personally towards obtaining the decree; but the Judge hasfound, and there appears to me to be ample evidence to support hisfinding, that Babi Nona and Alice Nona never, in fact, signed thispromissory note at all. Therefore, at the time that he instructed theproctor, he knew that he was instructing him in a fraudulent anddishonest claim, and the proxy authorized the judgment, which wasobtained by his proctor on the instructions given to him. Thefirst accused, therefore, appears to me to have directly obtained thedecree, and to have obtained it fraudulently. The second accused,who appears to be the prime mover of the transaction, appealedon two main grounds, apart from the facts:First, that he ought
not to have been convicted as principal, but as abettor only; andsecondly, that he ought not to have been, convicted of an offenceagainst section 207, when the principal offence that he is shown bythe evidence to have committed is the offence of forgery of valuablesecurity; which was not triable before the District Court. Withregard to the first objection, as I have mentioned, section 107 of thePenal Code says that an abettor who is present when the offenceis committed shall be deemed to have committed the act or offence.He is, therefore, in my opinion, liable as principal, but even if thiswero not so, ft is a matter of no importance in the present case,because the conviction for abetment of thi6 offence would justifythe sentence of one year which has been imposed upon the secondaccused. With regard to the other objection, it is within thediscretion of the Attorney-General to direct to what Court a caseshall be committed and what offence he shall be indicted for, andit appears to me that it should only be in some extreme case thatthe Court of Appeal should interfere with the discretion so givento him and direct a trial in a different Court. It also seems to methat such a course should be taken only in still more exceptionalcases when an accused has been tried and convicted, and raises theobjection only when the trial on the first indictment has beendecided, against him. The present case does not appear to meto be one where the accused has suffered any injustice in not beingtried for the graver offence that the evidence appears to show thatthey have committed. I feel satisfied that the Judge has cometo a right conclusion on the evidence, and that the accused havebeen properly convicted.
THE KING v. BABA SINGHO et al