072-NLR-NLR-V-10-THE-KING-v.-LAVENA-MARICAR.pdf
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Present; Mr. Justice Middleton.THE KING v. LAVENA MARICAR.
1907.
November 21.
D. C. (Criminal), Colombo, 1,761.
(Cheating1—Concealingfact. of, seizure frommortgage—Incumbrance— >
Fraud—PeruU Code, s. 403.
A person who obtains money on a mortgage of property, whichat the date of such mortgage is under seizure, by concealing fromthe mortgagee the fact of such seizure, is guilty of cheating undersection 403 of the Penal Code.
Emperor v. Bishan Das1 referred to.
A
PPEAL by the accused from a conviction by the AdditionalDistrict Judge of Colombo (E. R. Ondaatjie, Esq.) under
section 403 of the Penal Code.
The facjbs are fully out in the judgment.
Van Langenberg (H. Jayewardene with him), for the accused,appellant.
W. de Saram, C.C., for the Crown.
Cur. adv. vulL
November 21, 1907. Middleton J.—
In this case the appellant has been convicted of cheating undersection 403 of the Penal Code and sentenced to six months*imprisonment.
The facts constituting the alleged offence were, that while theappellant was> in .treaty with Mr. Pedris, Proctor, on behalf of aclient for the transfer of a mortgage given by Mr. Hunter on certainproperty, this property was seized by the Fiscal in satisfaction ofa judgment debt of the appellant in a money suit on June 5, 1907.Prohibitory notices under section 23 of the Civil Procedure ‘ Codewere duly affixed to the premises seized in which the appellantresided, although he was not at home at the time of their affixing.The notice C was in English, and prohibited appellant and his wifefrom “transferring, alienating, or charging" the property»seizedin any way. The seizure must have been registered on the after-* noon of June 6, as on the morning of that day Pedris searched thebooks in the Registry and found no incumbrance on the propertyother than the mortgage it was proposed to transfer. In thecourse of^ that day the appellant called on Pedris and was asked ifthere; were? any incumbrances other than Hunter's mortgage oh theproperty, and he replied th'ere were none, and was told to come the ^next day to complete. On the 7th the new mortgage was con*pie ted, and the appellant received & cheque for the balance between, 11. L. B. 27, All. 561.
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1907. the amount lent on the old and new mortgagee. A few days after-November 21. wards Pedris incidentally discovered at the Registry Office that aMiddleton seizure of the property in question had been registered on June 6,•1- presumably later in the day than his first visit, on that day. Pedris-stated that if he had known there was a judgment against-^theappellant he would not have given him the loan. The appellant#
* when charged by Pedris with deceiving him, suggested that thejudgment debt was on a money decree while the money advancedby Pedris was on a mortgage.
It was contended on the authority of Emperor v: Bisham Das1that the appellant was not liable to be convicted of cheating, as he-was under no legal obligation to inform Pedris that the propertyhad been seized in execution,, and so had not been fraudulent ordishonest, and further that there was no evidence to show thatappellant was aware that the seizure had been registered, and therebyan incumbrance created on the property under section 238 of the;Civil Procedure Code.
In Snell’s Principles of Equity, 3rd Edition, p. 450, the suppressionby a vendor of the fact of existing incumbrances in land sold is-deemed to be a fraud on the vendee (Amot v. Biscoe,2 Edwards v.McLeay;3 Ellard v. Llandaff4).
Here the appellant distinctly suppressed the fact that the pro-perty had been sized in execution, while he must have known, ifhe had taken the trouble to read the prohibitory notices affixed to1his premises, that he was prohibited to charge the property. Hewas asked if there was any incumbrance pn the property on June 6rand replied in the'negative. A seizure under a writ may, I think,be fairly included in the term “ incumbrance ” in its ordinary etymo-logical sense. This question must have caused him to disclose thefact of the seizure if he had desired to do so. I think also it was theduty of the appellant under the circumstances to disclose the factof the seizure. He does not disclose it, and he must have knownhe was not entitled to charge the property. He has not chosen togive evidence on a point peculiarly within his own knowledge (section106 of the. Evidence Ordinance), and the fair inference is that hefraudulently and dishonestly suppressed the fact of the seizurefrom Pedris, and so induced him to advance the money on themortgage, thereby cheating him.
I have considered the question of sentence, but do not proposeto interfere. I dismiss the appeal.
Appeal dismissed-
L L. R. 27, All. 561.* 1 Vesey Senior, 95.
3 2 Swanst. 287.Ball <et5. 241.