105-NLR-NLR-V-48-THE-KING-v.-FOENANDER.pdf
NAGALINGAM A.J.—Joseph v. Kasupathy.
327
1947
Present: Keuneman S.P.J. and Jayetileke J.
THE KING v. FOENANDER.
S. C. 78—D. C. (Crim.) Kegalla, 2,679.
Criminal breach of trust—Shortage of property entrusted to accused—Reason-able explanation—Evidence of dishonesty—Penal Code, s. 392.
A number of parcels were entrusted at the Fort Station to the accusedwho was a Railway Guard to be delivered at Rambukkana. On deliverysome parcels were found to be missing. The accused admitted receiptof the parcels but could not account for the shortage. His explanationwas that someone had probably stolen them while he was attendingto his work. There was evidence that two railway porters travelledin the van from Fort to Polgahawela.
Held, that there was no evidence of dishonesty on the part of theaccused and he could not be convicted of criminal breach of trust.
328JAYETILEKE J.—The King v. Faenander.
PPEAJL against a conviction from the District Court, Kegalla.
E. F. N. Gratiaen, K.C. (with him G. E. Chitty), for the accused,appellant.
J.A. P. Cherubim, C.C., for the Attorney-General.
Cur. adv. vult.
July 11, 1947. Jayetileke J.—
The accused has been convicted on an indictment under section 392of the Penal Code with having committed criminal breach of trust inrespect of two bales of textiles entrusted to him on or about December7, 1944, and sentenced to undergo rigorous imprisonment for a period ofsix months. The accused is a railway guard, and, on the day inquestion, he was in charge of the guard’s van which was attached to theUp-country night mail train. The evidence shows that at the FortRailway Station he was entrusted with' the following parcels by Pelis,a railway policeman, to be delivered to the officer in charge of theRambukkana Railway Station : —
A bag of forage.
A parcel of newspapers.
A letter with a cheque enclosed.
(a) Two bundles of beedies,
(b) Two bales of textiles.
Three service letters.
Pelis issued to him four waybills in respect of items 1, 2, 3, 4, namely,P 4, P 5, P 6 and the original of P 2. No waybill was issued for the serviceletters as it was not usual to do so. Pelis prepared a summary of the way-bills and parcels handed over by him to the accused (P 2) and obtainedthe accused’s signature to it. P 2 shows that in addition to the parcelsreferred to above, various other parcels were entrusted to the accusedto be delivered at other stations. The accused’s duty was to deliver thewaybills and the parcels to the officers in charge of the respective stationsto which the parcels were consigned.
When the train reached Rambukkana Station the accused deliveredto the officer in charge P 4, P 5, P 6 and the articles referred to in items1, 2, 3, 4 (a) and 5. The officer-in-charge says that he asked the accusedfor the original of P 2 and the accused gave him a bundle of waybills andasked him to search for it, but P 2 was not in it. Just then Rayappen, theconsignor of the two bales of textiles, turned up and inquired about thegoods consigned by him. The accused requested him to search for thegoods in the van. Rayappen did so, but did not find them. At adepartmental inquiry held on January 5, 1945, the accused made astatement P 14 which was read in evidence at the trial. In that statementhe has admitted that the two bags of textiles were entrusted to himand he has stated that after taking charge of the Fort parcels he had totake charge of the Colpetty parcels and to check and accept ice andvarious other things loaded in the waggon. He has also stated that two
J AYE TILE KE J.—The King v. Foenander.
329
railway porters travelled in his van from the Fort as far as Polgahawela.The statement taken as a whole shows that the accused could not explainwhat happened to the goods and that he believed that the goods had beenstolen either by someone at the Fort Railway Station when he wasattending to the work referred to by him or by the two railway portersbetween the Fort and Polgahawela Railway Stations. One of thewitnesses called by the Crown supported the accused’s statement thattwo railway porters travelled in the accused’s van that night. On thesefacts the question arises whether the charge can be sustained. Twoelements are necessary to constitute the offence of criminal breach oftrust: — (1) There must be a trust. (2) There must be dishonesty.The accused was, no doubt, entrusted with property, but he would not beguilty of criminal breach of trust unless he dishonestly misappropriatedor converted the property to his own use, or dishonestly used it ordisposed of it in violation of any direction of law prescribing the modein which the trust he undertook was to be discharged, or wilfully sufferedsome other person so to do. There is no direct evidence of dishonestmisappropriation of the property by the accused in this case, nor arethere any circumstances from which dishonest misappropriation may beinferred. The alterations in the road bill P 3 to which Mr. Cherubiminvited our attention do not prove any dishonesty on the part of theaccused even if they were made by the accused. The District Judge saysin his judgment that the accused has failed to explain what happenedto the goods. In saying so he has obviously lost sight of P 14. InKoch v. Nicholas Pulle1 Lawrie J. said—
“ In all cases under this section the explanation by the servant is animportant part of the evidence before the Jury or the Court. Does theexplanation satisfy the Court that there has been no dishonesty, nocriminal breach of trust or does it contain admissions or statementsfrom which either the guilt of the accused is proved or guilt mayreasonably be presumed ? ”
The explanation given by the accused seems to be a reasonable oneand I think it should be accepted. It is possible that the two railwayporters stole the goods, but the accused cannot be convicted in theabsence of evidence that he wilfully suffered them to do so. In Emperorv. Ramaycc* the accused, who was the tindal of a cargo boat wasentrusted with 200 hides to be carried to a steamer. On delivery on thesteamer twenty-two hides were missing up on which the accused wasconvicted of criminal breach of trust. It was held that there was noevidence of dishonesty nor could dishonesty be inferred from the merefact that some of the hides disappeared from the boat. The accusedmay have been negligent but he was not dishonest. The crew or some ofthem may have committed the theft but the accused could not beconvicted unless there was evidence of, at least, wilful sufference whichmust, at least, amount to abetment.
In Koch v. Nicholas Pulle (supra) it was held that mere deficiency .in the quantity of the goods entrusted to a servant is not of itself sufficient
(1898) 3 N. L. R. p. 198.
* 1 Crim. L. J. 908.
330
DIAS J.—Piyaseruz v. Ephramus.
proof of criminal breach of trust. It must be shown that the accuseddisposed of the property in some way other than that in which he wasbound to apply it and that in so disposing of it he did so dishonestly.
I would set aside the conviction and sentence and acquit the accused.
Keuneman A.C.J.—I agree.
Accused acquitted.