CANNON J.—The King v. Casperaz.
1946Present: Cannon and Canckeratne JJ.THE KING v. CASPERSZ.
129—D. C. (Criminal) Trincomalee, 293.
Criminal breach of trust——Meaning of “ dishonestly ”—Penal Code, ss. 21, 22,
388, 392—Sentence—Circumstances when fine is sufficient punishment.
Where the accused, an Executive Engineer in the Public WorksDepartment, Overpaid certain overseers out of money entrusted to himby the Government and made entry of the overpayments under afictitious heading of expenditure—
Held, that the accused had, by intentionally causing wrongful gain tothe overseers and wrongful loss to the Government, acted dishonestlywithin the meaning of section 22 of the Penal Code and was guilty of theoffence of criminal breach of trust.
Where a fine and its consequences ore sufficient punishment the Courtwould not impose a sentence of incarceration.
^^PPEAL against a conviction from the District Court of Trincomalee
H. V. Perera, K.C. (with him S. N. Rajaratnam), for the accusedappellant.
H. H. Basnayake, Acting Attorney-General (with him It. A. Kannangarc.
C.), for the Crown.
March 7, 1946. Cannon J.—
The appellant was charged under section 362 of the Penal Code thatbetween April 10 and May 19, 1944, at Trincomalee, he being entrusted inhis capacity as a public servant, namely, Executive Engineer, Public WorksDepartment, Trincomalee, with dominion over property, to wit money, forthe purpose of payment to overseers for rubble bottoming laid down atthe 78th, 79th and 80th mileposts on the Trineomalee-Batticaloa road,committed criminal breach of trust in respect of the sum of Us. 6,218 "48out of the said money. Evidence was led giving particulars of theaccused’s position and that in January or February, 1944, he was requiredto make an estimate for the construction of the road mentioned. Thisestimate he made for Rs. 100,000 which included an item of Rs 15,000for rubble bottoming. The estimate was approved, and in fact the workwas begun before the estimate was approved on account of urgency,as the road was required for military purposes. Contractors called“ overseers ” contracted to work on the road at certain rates but theaccused overpaid them because they represented to him that they weresustaining losses a'nd could not carry on without compensation and hetold them that they should put their losses under the fictitious heading of“ rubble bottoming,” the rubble bottoming having been omitted fromthe work. It was understood that ho would bo unable to get the increasedamounts without undue delay if at all.
The defence did not contest these irregular payments or that theywere made under those circumstanoos, but the defence relied on anexplanation which had been given by the accused to his superior officerwhen he began an investigation on or about the 28th of May. In thisexplanation the accused admitted that he had made irregular payments ofthe amounts mentioned in the charge but said that he had done so onaccount of an emergency which had arisen and to avoid undue delay in
CAHNON J.—The King v. Catpersz.
the work which would bo caused by applying for and obtaining therequired additional funds. He said that when he was instructed tosupervise the work he was threatened with dismissal by the Commander-in Chief if it were not done expeditiously, and he was further informedthat the Minister of Communications had said that cost was of secondaryimportance in this particular matter. Further to show the urgency of thematter he said that the Director of Public Works had authorized a onehundred per cent, inorease in wage rates for labourers instead of the fiftyper cent, which had been given over the rest of the Island. In spite ofthis, however, the overseers met with labour difficulties and complainedthat they were sustaining loss for which they demanded compensationadding that without it they wouid be unable to carry on with the work.Those losses he said were sustained by them in the cost of labour,recruiting labour, food, living costs, advances and desertions, the dailyexpense of keeping labourers on the site of the works and many otheroverhead charges. He felt that he must meet their demands at once andin order to do so resorted to the approval of a fictitious entry in theplace of expenditure for rubble bottoming which was not in fact done.The defence further relied on the cross-examination of the witnesses forthe Crown which elicited from tho P. W. D. officials’ evidence about theurgency of the work and the Minister of Communications’ letter directingthat cost would be regarded as of secondary importance, and further thatthere were labour difficulties and that disproportionate rates of wageswere being paid in the Trincomalee area. The defence also elicited fromfive overseers who gave evidence that they were paid the money under thefictitious entry and that they had incurred loss for which the money wascompensation. The accused was not called to give any further explanationof the matter and the District Judge convicted him and sentenced him tosix months’ imprisonment.
For the appellant Mr. Perera submits that the amount mentioned inthe charge was not earmarked for the construction of this road andtherefore the conviction is wrong. There does not seem to be any clearevidence that the amount was earmarked for the road, but if it was notthere is evidence that thoro was money placed by the Government at theBank at the disposal of tho accused for meeting the cost of public worksof which he had tho supervision, and undoubtedly this road constitutedpart of those public works. I do not think, therefore, that there issubstance in that contention. It was further submitted that tho DistrictJudge in his judgmont had mentioned that he had come to the conclusionthat the accused had criminally “ misappropriated ” the funds. Techni-cally, there was no “ misappropriation ” of funds and therefore theDistrict Judge’s finding was unsupported by tho evidence. I think theDistrict Judge used the v oid “ misappropriation ” in order to express hismeaning that the accused had misapplied those funds, and that is borneout by the fact that the District Judge immediately after making thatromark proceeds to Bay “ I find him guilty under section 392 ” which is thocharge in the indictment. Mr. Perera furthor contends that tho evidencegivon by the Crown witnesses, coupled with tho accused’s explanation,shows that tho breach of trust was not dishonest because the overseersstate that tho money was paid for work which was in fact done. He
CANNON J.—The King v, Casper si.
omphasisoB the circumstances in which he submits the accused wasplaced, namely, his mental state in view of the position of urgency withwhich ho was faced and his fear of dismissal if there was any delay ; thathe had received an ultimatum from the overseers and therefore delaywould have been inevitable unless he had paid them as he did ; that theaccused had therefore been actuated by the paramount importance of thework, the ultimatum of the overseers, and his fear of inevitable dolay if thecompensation demanded by the overseers was not immediately paid tothem. It therefore becomes necessary to discuss the meaning of thoword “ dishonest ” according to the Penal Code, and it appears to havenothing to do with probity.
Section 22 of the Penal Code defines “ dishonestly ” as fallows :“ Whoever does anything with an intention of causing wrongful gain toone person or wrongful loss to another is said to do that thing dishonestly.”The words “ wrongful gain ” and “ wrongful loss ” are explained bysection 21 which reads :—
Wrongful gain is gain by unlawful means of property to which the
person gaining is not legally entitled.
Wrongful loss is the loss by unlawful means of property to which the
person losing it is legally entitled.
The issue then is :— Did the accused, when he authorized this paymentunder a fictitious head to the overseers, intend to cause wrongful gain tothe overseers or wrongful loss to the Government ? This view of themeaning of “ dishonestly ” in the section is held in India and was adoptedin All India Reports, 1944, Calcutta, page 92. One must, I think, judge aperson’s intention from what he does and wbat must appear to him at thetime as the natural consequences of his act. It seems to me, therefore,that there can be no doubt that the accused knew quite well that by soacting he was causing wrongful gain to the overseers and wrongful loss tothe Government. As regards his state of mind, his explanation that thedelay was inevitable and the submissions made about that, it is to beobserved that the documentary evidence shows that the Governmentwas taking a keen and active interest in the construction of this road andthat the Minister of Communications wrote that cost in regard to itsconstruction was to be regarded as of secondary importance. Thisshould, it seems to me, have indicated to the accused that any applicationby him for the immediate sanction of necessary increases would havebeen sympathetically received and quickly dealt with. There is furtherthe fact that the Government was requiring from him fortnightly reportson the progress of this work and in one column of the report forms therewas a special head “ Explanation for delay ”. Again, it would seemnatural for the accused to have put in that column something aboutthese demands of the overseers, but I have examined all these fortnightlyreports and nothing of that nature appears in that column. He alsoknew that Mr. Leader, the then Director of Works, had without anydifficulty or delay granted him in a personal interview sanction for theone hundred per cent, increase which I have already mentioned. Anotherpoint is the lack of intelligence that is conveyed about the amounts, andI think the District Judge is correct when he remarks " I am unable to
CA/NTSTON J.—The King v. Casperaz.
find even a very rough relationship between the alleged losses and theamounts expended on the whole work during the relevant period.” Theamounts too were large being sums of Re. 400, 800, 1,000, &c.f and hereagain there is not in the evidence, either oral or documentary, anythingto show how these amounts of alleged losses were computed, or whetherthey were checked at all by the accused.
I have been impressed by Mr. Perera’s argument that the overseers’evidence that they were genuine losses and were treated as such by theaccused is evidence to show that the accused was actuated by a motive ofduty, but when one comes to consider the documentary evidence in thecase, namely, the Minister’s letter, the fortnightly reports and the figurestogether with the fact that there is no evidence that the accused consultedany of his superior officers about them or made any report to them on thematter until the investigation was begun, this documentary and oralevidence leads me to the conclusion that the overseers’ evidence does notrebut the inference of intention by the accused. The documentaryevidence indicates to me that the accused had no reasonable ground to fearundue delay, and if in fact he did fear undue delay, he took no reasonablesteps to counteract it. In fact the evidence I have mentioned appearsto me to be primafacie evidence that he was not acting bona fide. For thesereasons we are unable to disturb the order of the District Judge convictingthe accused,
Mr. Perera has, however, addressed us on the question of sentencewhich was one of six months’ imprisonment and submitted that this isnot a case where a sentence of imprisonment should be imposed withoutthe option of a fine. It seems to me that if it were a case for imprison-ment the sentence passed is inadequate but I agree that in the particularcircumstances the accused should be given the option of a financialpenalty for these among other reasons : He has attained from the ranksthe high and responsible position of Executive Engineer and has servedthe State in the Public Works Department for some 29 years withoutcomplaint. He is 45 years of age and has a family of five, and unlike whatone might say the ordinary person he is likely to lose his pension rights.Moreover, I expect that he will be dismissed from the Service. Theseconsequences then are in my opinion sufficient punishment withoutadding that of incarceration. And further the Crown has in fact sufferedno loss because the money has been refunded. For the sentence ofimprisonment I substitute a fine of Rs. 500 and imprisonment till the risingof the court. If the fine is not paid within one month the sentence will stand.
The accused has filed an affidavit in which he says that the Magistratewho committed him for trial sat on the Bench with the District Judgeduring the trial and had some communication with the District Judgeabout the indictment. He complains that he was thereby prejudiced.The point of prejudice is not pressed by his Counsel, but it is submittedthat it is undesirable for a committing Magistrate to sit at the trial on theBench when the Judge is the Judge of fact as well as of law as he was in thisease. I agree with that opinion.
Canekeratne J.—I agree.