THE KING v. M. E. A. COORAY et al

104-NLR-NLR-V-51-THE-KING-v.-M.-E.-A.-COORAY-et-al.pdf


The King v. M■ E. A ■ Cooray et al.
[Court of Criminal Ajppeal, }
1950 Present: Nagalingam J. (President), Gratlaen 3. andGunasekara J,THE KING e. M. E. A- COORAY et at.
Appeals No. 1 of 1950 and No. 69 of 1949 with Applications
No. 180 and No. 181 of 1049
8. C. 4—M. C. Colombo, 43,770
Court of Criminal Appeal—Conspiracy—-Ingredients of offence—Agreement of accusedprior to commission of intended criminal act—Essential ingredient—Abet-ment by conspiracy—Element of agreement is necessary—-Abetment, by facili-tation, of criminal breach of trust—Joinder of charges—Criminal ProcedureCode, ss. 168 (2), 179, 184—Penal Code, ss. 100, 113A.
Two accused were jointly indicted that they “ did act together with u
common purpose for or in committing an offence, to wit, criminal breaoh oftrust . . .The indictment did not, however, allege an “ agreement,r
between them to “ act together ” in the manner and for the purpose specifiedin the indictment.
Held, that the indictment was bad in law. The commission of the offenceof conspiracy is established within the meaning of section 113a of the PenalCode in one or the other of the following circumstances
{a) if two or more persons agree, with or without any previous concert ordeliberation, to commit an offence or to abet an offence, or(6} if two or more pergons agree, with or without any previous concert ordeliberation, to act together with a common purpose for or incommitting or abetting an offence.
in either set of circumstances conspiracy consists in the agreement or con-federacy to do some criminal act, whether it is done or not.
In order that persons may conspire together it is not necessary to prove thatthero should be direct communication between each and all. The words ‘ ‘ withor without previous concert or deliberation ” were advisedly introducedinto the language of section 113a of the Penal Code so as to make it clearthat, for the purpose of establishing the offence of criminal conspiracy, theonly form of " agreement ” which needs to be proved is an agreement with acommon design.
In order to establish the offence of “ abetment of conspiracy ” undersection 100 of tho Penal Code, an agreement is an essential prerequisite.
In rogard to abetment, by facilitation, of the offence of criminal breachof trust, the liability of the alleged abettor to be jointly tried, under section 184of tho Criminal Procedure Codo, with the principal offender ib subject to hisright to claim, undor section 173, that notmoro than three charges of the samekind may l>e laid against him in the course of a single trial. This right, asfar as the abettor is concemod, is not affected by the provisions of soction168 (2) of the Criminal Procedure Codo.
Api
’PEALS, with applications for leave to appeal, against two
convictions in a trial before a Judge and Jury.
H. V. Pereu»,JC.O., with Colvin R. de Silva, M. M. Kutnaralmlaeinghumand G. Rajapaksefor^firat accused appellant.
M. M. Kumarakulasingham, with H. W. Jayetoardene. and K. C. de Silva,for second accused appellant.
B. R. Crossette-Thambiah, K.C., Solicitor-General, with R. A. Kannan-gara, Crown Counsel, and 8. S. Wije^vnha, Crown Counsel, for the Crown.
Cur. adv. null.
19-Li.
1—J. X. A 99093-1,041 (7/M)
134
GRATIAJEN J.—The King v. M. K. A. Cooray et al.
May 25,1950. Gratia en J.—
Thero arc two accused in this case. They have appealed againstconvictions on charges of having committed serious offences in theirrespective capacities as officers holding key positions in the organisationof the Co-operative Movement in this country.
It is convenient at the outset to describe the procedure relating to thefinancing of the business of one particular Co-operative Society—namely,the Salpiti Korale Stores Societies Union Ltd.—in so far as is necessaryfor the purposes of the present appeal. This Union carried on its activitiesthrough the agency of three wholesale depots, including the MoratuwaDepot (of which D. S. Ranatunge was manager during the relevantperiod) and the Piliyandala Depot (of which the first accused’s brother,Leo Cooray, was manager). The first accused was the President of theWorking Committees of both these depots. He was also President ofthe Salpiti Korale Union which was the central organisation.
The Salpiti Korale Union (to which I shall hereafter refer as “ theUnion”) required funds for the purpose of purchasing rice, currystuffsand other commodities for salo and distribution to its members throughthe depots. These funds were obtained from the Co-operative CentralBank (of which the second accused was the manager), a loan to the Unionfrom this Bank (up to a sanctioned maximum of Rs. 75,000 at any pointof time) on what is described as a “ cash credit basis ” having beenarranged with the Directors of the Bank. The first accused was, at allrelevant timos, in addition to his other functions previously described,Vice-President of the Board of Directors of the Bank.
In order to meet the requirements of the Union and of similar institu-tions, the Bank operated on a special account, with overdraft facilities,in the Bank of Ceylon. Suras required by each Union from timo to timowould be advanced up to a sanctioned amount; the Union would utilisethese advances to purchase stocks for its various Depots; these stockswould be sold to members at the Depots; and in due courso the proceedsof sale would bo paid in to the credit of the Union’s “ loan account ”with the Co-operative Central Bank. The arrangement was that suchpayments should be made as far as possible in the form of cheques andmoney ordors ; cash deposits in excess of a total of Rs. 100 per day wereapparently refused or, at any rate, discouraged owing to the inadequatefacilities in the Bank for handling cash.
In or about April, 1948, it was discovered that thirty-five chequeswhich had been deposited with the Bank to the credit of the Union byor on behalf of the Moratuwa and the Piliyandala Depots oh variousdates between 23rd September, 1947, and 28th February, 1948, hadeither never been presented for payment at the Bank of Ceylon or (havingbeen dishonoured on one or two occasions shortly after they had beendeposited) not been rc-presented for payment. Thirty-two cheques,all of thorn belonging to the former category, were “ cash ” cheques,drawn on the Pettah branch of the Bank of Ceylon by the first accused.The three remaining cheques, belonging to the second category, hadbeen drawn by a man named E. J. Cooray who, like the Manager of thePiliyandala Depot, was a brother of the first accused. The aggregate
GRATIAEK J.—The King v. M. E. A. Cooray et al.43a
sum represented by those thirty-five cheques amounted to Rs. 161,576 * 93.Alter the discovery of the alleged fraud, all thirty-five cheques worepresented for payment at the Bonk of Ceylon but were dishonoured.In the meantime it was discovered that the books of the Co-operativeCentral Bank had been balancod on the assumption that the “ value ”of each of these allegedly worthless cheques had been properly creditedin liquidation of the Union’s indebtedness to the Bank.
The case for the Crown was that the transactions which I have describedwere all part of a scheme whereby the first accused, in his capacity asthe President of the Union and of the two Depots which belonged to itsorganisation, had dishonestly converted to his own use cash collectedfrom time to time by their respective Managers and intended to be creditedto the Union’s account with the Central Bank ; that he had dishonestlysubstituted in the place of those sums of money a number of worthlesscheques; and that he had procured the dishonest connivance of thesecond accused, as Manager of the Bank, to facilitate the commissionof his fraud by “ holding-up ” these cheques instead of presenting themfor payment in the ordinary way.
On the basis of these allegations both accused were jointly indictedbefore the Supreme Court and a special jury on the following counts:—“ I. That between the 1st May, 1947, and 30th April, 1948, atColombo, both accused did act together with a common purpose for orin committing an offence, to wit, criminal breach of trust in respectof Rs. 101,576*93 belonging to the Salpiti Korale Stores SocietiesUnion Ltd., which was entrusted to the first accused by I). S. Rana-tunga and M. S. Leo Cooray, Managers of the Moratuwa and PiliyandalaWholesale Depots, respectively of the said Union, in the way of hisbusiness as Agent, to be deposited to the credit of the said Union att-ho Colombo Co-operative Central Bank, and thereby committed theoffence of conspiracy in consequence of which conspiracy the saidoffence of criminal breach of trust was committed; and that bothaccused had thereby committed an offence punishable under section113b read with sections 392 and 102 of the Penal Code.
“ 2. That at the time and place aforesaid and in the course ofthe same transaction, the first accused being entrusted with the saidsum of Rs. 161,576*93 by D. S. Ranatunga and M. S. Loo Cooray,Managers of the Moratuwa and Piliyandala Co-operative WholesaleDepots of the said Union, in the way of his business as an Agent, tobe deposited to tho credit of the said Union at the Colombo Co-operativeCentral Bank, did commit criminal breach of trust in respect of the saidof Rs. 161,576*93 and that he had thereby committed an offencepunishable -nHw section 392 of the Penal Code.
“ 3. That at the time and pi«.©© aforesaid and in the course ofthe same transaction the second accused did abet the first accused intho commission of the offence of criminal breach of trust in respectof Rs. 161,576*93 as sot out in count 2 above, which said offence wascommitted in consequence of such abetment; and that he had therebycommitted an offence punishable under section 392 of the Penal Coderead with section 102 of the said Code
430
GRATIAEN J.—The King v. M. E. A. Cooray Hal.
After a trial which continued for several days the Jury found both accusedguilty on the first count; they also found the first accused guilty on thesecond count, and the second accused guilty on the third count. Thelearned Judge passed sentences of six years rigorous imprisonment,to run concurrently, on the first accused; and sentences of two years’rigorous imprisonment, to run concurrently, on the second accused.The present appeals are from these convictions.
Substantially, the defence raised on behalf of each accused at thetrial was that he should be acquitted because ho had not acted “ dishonest-ly ” in the transactions to which the various counts in the indictmentrelate. On this aspect of the case the directions of the learned Judgeto the Jury were, in our opinion, adequate. In appoal, however, theconvictions were attacked upon other legal grounds which had apparentlybeen lost sight of in the course of the trial. We regret that on thesequestions of law we have failed to reach unanimity, and the conclusionswhich I now proceed to record represent in each case the views of themajority of the members of the Court.
It was argued on behalf of both accused, as a first ground of appoal,that the first count in the indictment, charging them with the offenceof “ conspiracy ”, was bad in law, in that it did not allege an “ agreement ”between them to “ act together ” in the manner and for the purposespecified. The case for the Crown, on the other hand, is that althoughan agreement is the gist of the offence of conspiracy In cases falling undersection 113a of the Penal Code where an agreement “ to commit or abet ”on offence is alleged, no such agreement ncod be proved, even infcrentially,when two or more persons are alleged to have “ acle/.l together with a com-mon purpose for or in committing or abetting an offence It was on thisview of the law that the indictment was advisedly framed against theappellants; and it was on this basis that the case was presented to theJury by tho prosecution and in due course by the learned presidingJudge. Tho question which arises for our decision is therefore a funda-mental one depending upon the proper interpretation of the languageof section 113a.
It is pertinent to recall the circumstances under which soction 113awas enacted. Until 1924, “ criminal conspiracy ” was not penalisedin this country except, to a limited extent, as a species of the offenceof abetment under soction 100 of the Code. This defect in the lawreooived some prominence by reason of the acquittal of ono of the accusedpersons in The King v. Silva1. Accordingly, Ordinance No. 6 of 1924was passed to amend the Penal Code by introducing sections 113a and113b which read as follows
“ 113a (1) If two or more persons agree to commit or abet or acttogether with a common purpose for or in committing or abettingan offenco, whether with or without any prev ious concert or deliberation.,each of them is guilty of the offence of conspiracy to commit or abetthat offence, as the case may be.
(2) A person within Ceylon can be guilty of conspiracy by agreeingwith another person who is beyond Ceylon for the commission orabetment of any offence to be committed by them or either of them,* {1923) 24 X. L. R. 493.
GRATIAKN J.—The King «>. M. K. A. Cooray et al.
437
or by any other person, cithor within or beyond Ceylon ; and for thepurposes of this subjection as to an offence to be committed beyondCeylon, “ offence ” means any act which if done within Ceylon wouldbe an offence under this Code or any other law.
Exception.—This section shall not extend to the case in which theconspiracy is between a husband and his wife.
" 113u. If two or more persons arc guilty of the offence of con-spiracy for the commission or abetment of any offence, each of themshall be punished in the same manner as if he had abetted such offenceMr. H. V. Percra’s contention is that section 11 3a must be interpretedso as to establish the commission of tbe offence of “ conspiracy ” in oneor the other of the following circumstances :—
if two or more persons agree, with or without any previous concert
or deliberation, to commit an offence or to abet an offence; or
if two or more persons agree, with or without any previous
concert or deliberation, to act together oith a common purposefor or in committing or abetting an offence.
If this interpretation be correct, conspiracy consists in either set ofcircumstances “ in the agreement or confederacy to do some act, whetherit is done or not ”—The King v. Hibbert1.
The learned Solicitor-Genoral argued, on the other hand, that theoffoncc of “ conspiracy ” is established within the meaning of the sectioneither (1) if two or more persons agree to commit or to abet an offence; or(2) if two or more persons act together, with or without any previousconcert or deliberation, with a common purpose for or in committingor abetting an offonce.
This latter interpretation was favoured by Soertsz 3. in The King v.Andree2. The question did not directly arise, howovor, for considerationin that case, the indictment for conspiracy having expressly alleged andthe prosecution having led satisfactory evidence to prove “ an agreementto act together ” on tho basis that Mr. H. V. Perera’s present submissionis correct. Nevertheless, the obiter dictum of this very distinguished Judgeis entitled to considerable respect.
We have had benefit of a full argument on tho question which hasarisen, and the view' which we have formed is that the interpretationof section 113a contended for by Mr. H. V. Perera is correct. Apartfrom other considerations, this conclusion is to bo preferred upon ananalysis of the grammatical elements of the sentence under consideration.Moreover, under the common law of England, “ conspiracy ” is regardedas differing from other offences in that it penalises an agreement or con-federacy, simplicUer, to do some act—and not the act itself (which mayor may not have been performed in pursuance of such agreement). Theposition is the same under chapter 5a of the Indian Penal Code in so faras the offence of conspiring to commit criminal acts is concerned. Indeed,evidence of earlier recognition in Ceylon of this fundamental idea is to befound in the language of section 100 of the Penal Code. One shouldtherefore hesitate, in the absence of compelling words which would1 7 ? Cot C. C. 82 at p. 8G.* {1941) 42 N.L.It. 495.
438
GRATIAEN 3—The King v. M. K. A. Cooray el al.
justify such an assumption, to hold that the Legislature could haveintended in 1024 not only to make “ conspiracy ”, in the sense in whichthe term had previously been understood, a criminal offence, but alsoto penalise under the same name conduct which introduces an entirelydifferent concept.
If the offence of “ criminal conspiracy ” as defined by section 113a ofthe Penal Code be compared with the corresponding offence which hasbeen either defined by statute in India or judicially interpreted as acommon law offence in England, it emerges that the vital respect in whichthe Ceylon legislature had departed from the existing models was byrestricting the offence in this country to agreements designed to furtherthe commiasiun or the abetment of criminal acta—and that agreementsto commit unlawful acts which are not offences, or to perform bj' illegalmeans acts which arc themselves lawful, wore not caught up in the nowsection. Subject to this, as Howard C.-J. soenis to suggest in The King v.Aniree1, the elements of the English law of criminal “conspiracy”have been substantially introduced into the Penal Code, and, if thisbe so, it is agreements per se in respect of criminal offences which, fromthe moment of their formation, are intended to be penalised. Jx>rdBrampton lias pointed out in Quinn v. Leatham8 that “the. overt actswhich follow a conspiracy form of themselves no part of the conspiracy ”.Similarly, wo would hold that “ to act …. for or in committingor abetting an offence ” (though punishable if such acts should offendagainst other provisions of the criminal law) cannot by itself constitutethe offence of criminal conspiracy under section 113a in the absence ofproof (by direct evidence or inferentially) of a prior agreement to act-in furtherance of that end. Indeed, even if the interpretation soughtby the Crown for section 113a be correct, it is strongly arguable thatpersons cannot bo held to “ act together with a common purpose ” unlessthere is evidence from which a Court may legitimately infer a pre-arranged plan for such concerted action—vide Mahbub Shah v. Emperor aregarding tho prerequisite of acting “ with a common intention ”. Itis “ the concurrence of minds ” which constitutes the offence (per Cockburn
J.in Regina v. Boulton 4). Nor is it necessary in order to complete theoffence of “ conspiracy ”, that anything should be done beyond theagreement. “ The conspirators may repent and st op ; or they may haveno opportunity, or may be prevented, or may fail; nevertheless, thocrime is complete and was completed when they agreed —The Queenv. AspinaU*. In other words, if acts are committed in pursuance ofthe agreement which preceded them, proof of such acts is, on a chargeof conspiracy, relevant only in so far as they furnish evidence from whichthe prior agreement, which is the essential ingredient of the offenceconcerned, may legitimately be inferred—B. v. Mulcahy •.
It is necessary to consider an argument which was strongly urged beforeus by the learned Solicitor-General. While conceding that prima faciethe words “ with or without previous concert or deliberation ” seemto relate to all the words “ agree to act or abet or act together …. ”
1 {194 J) 42 X. L. R. 495.
* {1901) A. C. 495.
3A. /. R. {1945) P. C. 118.
* 12 Cox C. C. 87 at p. 95.8 {1872) 2 Q. B. D. 48.
•L.R.3 H. L. 306.
GRATIA EN J.—The Khy v. M. E. A. Cooray et aj.
43»
which have gone before, he BUggeated that logically, and in order tO'avoid an interpretation which would lead to absurdity, they should beregarded as qualifying only the later words “ act together …,
An “ agreement ”, he argued, necessarily presupposes some degree ofprevious concert and deliberation ” ; and it is therefore “ nonsensical(to use his own words) to suggest that two or more persons can “agree” todo something “ without previous concert and deliberation”. With respect ,wc cannot agree. The common law offence of “ conspiracy ” in Englandhas from time to time been developed and clarified by high judicialauthority, and it is now well established that the kind of “ agreementwhich is regarded in England as forming the gist of this offence does notnecessarily mean that the alleged conspirators “ actually met and laidtheir heads together, and then and there actually agreed to carry outthe common purpose”—The Queen v. ParnellV In that judgmentFitzgerald J. made reference by way of illustration to an unusual ca6eof two guilty “ conspirators ” who never Baw each ofchor until they stood,face to face in the dock ; li It may be ” said the learned Judge “ thatthe alleged conspirators have never seen each other and have nevercorresponded. One may have never hoard the name of the other, andyet by the lau) they may be parties to the same common criminal agreement ”,Similarly, in R. v. Meyrick 2 Lord Hewart said, “ In order that personsmay conspire together it is not necessary to prove that there should bedirect communication between each and all …. It is necessary
that the prosecution should establish, not indeed that the individualswere in diroct communication with each other or directly consulting-together, hxti that they entered into an agreement with a common design.Such agreements might be made in various ways. There may be oneperson …. round whom the rest revolve. The metaphor is themetaphor of the centre of the circle and the circumference. There maybe a conspiracy of another kind, when the metaphor would rather be-that of a chain. A communicates with B, B with C, C with D, and so on,to the end of the list of conspirators
Tt seems to us that the words “ with or without previous concert ordeliberation ” were advisedly introduced into the language of section113a of the Penal Code so as to make it clear that, for the purpose ofestablishing the offence of criminal conspiracy, the only form of “ agree-ment” which needs to be proved is an “agreement with a common,design ” as explained in the judgments to which 1 have referred.
Another argument which was addressed to us was that, if “ agreement ”be the vital ingredient of every form of conspiracy contemplated by-section 113a, the words “ agree to …. act together with a common
purpose for or in committing or abetting an offence ” would be redundantbecause they are in effect synonymous with the earlier words “ agree tocommit or abet an offence We are not convinced that the meaningof these phrases is necessarily identical. One can conceive, for instance,,of an agreement between A and B to commit acts (of preparation)-which, though designed to further the commission of an offenceby C, might possibly fall short of the actual abetment of a criminal act,
1 14 Cox C. C. at p. 516.
* 21 Cr. A. R. 94.
440
GRATIAEN J.—The King v. M. E. A- Cooray et al.
In any event, the mere circumstance that redundant words have beenintroduced into a statute out of an abundance of caution would notjustify an attempt to attribute to the sentence in which those words appearsome meaning which, though eliminating redundancy, was not intendedby the draftsman.
In the result, the majority of the Court hold that the first count in theindictment is bad in law because it did not allege and was not intendedto allege a prior “ agreement ” between the accused which is essontialto the commission of any species of the offence of criminal conspiracywithin the meaning of section 113a of the Penal Code. The learnedSolicitor-General very properly stated that, having regard to the mannerin which the case for tho prosecution was presented to the Jury at thetrial, he would not invite us to hold, under the proviso to section 5 (I) ofthe Court of Criminal Appeal Ordinance, that no substantial miscarriageof justice had actually occurred. The jury was at no time invited,as they should have been, to consider whether, upon the evidence, theywere satisfied that the accused had entered into a conspiracy in conse-quence of which they are alleged to have acted in furtherance of a planto procure the commission by tho first accused of the offence of criminalbreach of trust. A single count in an indictment on a “ conspiracy ”charge can properly allege only one conspiracy and not a series ofseparate conspiracies. It was therefore essential to ensure that theJury, adequately and specifically directed on the point, should haverealised that it was not competent for them to return a verdict againstthe acoused unless they were satisfied upon the evidence that there wasone single conspiracy which preceded and motivated the consequentialacts which each accused was alleged to have committed—vide theobservations of Humphreys J. in It. v. WestFor the reasons which Ihave given we quash the convictions of both accused on the charge ofconspiracy.
It is convenient at this stage to record the conclusions arrived at bythe majority of the members of the Court in regard to the charge of“ abetment ” framed against the second accused in the third countof the indictment. The allegation is that between 1st May, 1947, and30th April, 1948, he did abet the first accused in the commission of thooffence of criminal breach of trust of As. 161,576*93 (i.e., tho sumrepresented by the thirty-five cheques to which I have referred).
It is not alloged by the Crown that the second accused “ instigated ”the first accused to commit criminal breach of trust. The Jury couldnot properly convict him, therefore, unless, after adequate direction,they took the view that he had either “ engaged in a conspiracy ” forthe commission of the offence or “ intentionally aided ”…. its
commission (vide section 100 of the Penal Codo). I shall deal witheach of these alternative positions in turn.
Even if two views wero possible as to the proper interpretation ofsection 1 13a of the Code, thero can be no question that, in order toestablish the offence of “ abetment by conspiracy ” under section 100,an agreement is an essential prerequisite, rndeod, the second explana-tion to section 100 makes it clear that “ a 'conspiracy for tho doing of a» (IMS) IK. B. 709.
GRATIAEN 3.—The King v. M. E A. Coorag el at.
441
thing is when two or more persons agree to do that thing or to cause orprocure that thing to be done It follows that, in having failed todistinguish between the interpretation which was wrongly placed uponsection 113a and the interpretation which admittedly must be'placedn that part of section 100 dealing with abetment by conspiracy, thelearned Judge had misdirected the Jury. All the infirmities in thedirection on the first count in the indictment necessarily attach thereforeto the direction on the third count. For instance, the learned Judgetold the Jury, *' if you find that there was a conspiracy on the first countyou may very well find that the conspiracy constituted a form of abet*ment under the third count We have already taken the view thatthere was misdirection on the first count in not pointing out that anagreement was the gist of the offence. A fortiori, failuro to make this(dear on the third count was a misdirection. In another portion of thischarge on the issue of conspiracy, the learned Judge said, ” conspiracymeans to act together with a common purpose, the direct act (of thesecond accused) being to hold up the cheques. The act on the part of thesecond accused is admitted. It is guilty knowledge which is denied ”.We think that this was an inadequate direction, becauso even thoughthe acts alleged against the second accused were not in dispute, thevital question for the Jury to decide was “ whether there was a previousconspiracy ” in pursuance of which the acts complained of werecommitted—R. v. Kohn 1.
Admittedly, the Jury were also invited to oonsider whether the secondaccused was, in the alternative, guilty of abetment by “ intentionallyaiding ”, that is, by facilitating the commission of the offence of criminalbreach of trust by the first accused. As we read the learned Judge’scharge, however, the Jury might well have thought that this questionneed not be considered by them unless they returned a verdict of acquittalon the charge of conspiracy. It is therefore not possible to hold that,in view of the Jury’s finding on the first count, the verdict against thesecond accused on the third count was arrived at by finding that therehad been abetment by facilitation. The majority of the Court accord-ingly hold that the conviction of the second accused on the charge ofabetment must be quashed. After hearing the evidence of the witnessesfor the prosecution, the learned Judge had expressed the view thatthe case against the second accused was “ what could bo called a thinone ”. In that state of things we are not- disposod to say that it wouldbe appropriate to order a re-trial of the second accused on the tliird countin the indictment. We accordingly make order acquitting the secondaccused on the tliird count. Whether or not the evidence against him,.if true, established the commission of some other offence than that withwhich he was charged, does not arise for our consideration.
Before we proceed to deal with the outstanding charge against thefirst accused, namely, on the charge of criminal breach of trust, I considerit desirable that I should record the conclusions arrived at by the majorityof the Court on a further point- which was raised in connection with thecharge of abetment. In so far as the third count in the indictmentcan be understood to allege abetment by conspiracy, we think that it> 176 E. R. 470.
!*•
r. H. A 99093 (7/&0)
442
GKATIAEN J.-—Tht Kituj v. JW. K. A. Coorayet at■
can properly be interpreted to involve a charge of having engaged in asingle conspiracy which preceded the alleged commission of criminalbreach of trust by the first accused. If, on the other hand, abetmentby facilitation be regarded as forming the gist of the offence, it seems to usthat, upon an analysis of the evidence for the prosecution in the preeencase, a number of separate abetments was in effect involved. Section168 (2) of the Criminal Procedure Code, road with section 179, admittedlypermits an accused person to be charged and tried at one trial for the com-mission of any number of offences of criminal breach of trust (if allegedto have been committed in the course of a period not exceeding one year).We can find nothing in the Criminal Procedure Code, however, whichsanctions the trial of an accused person on more than three charges ofabetment in the same proceedings. The liability of an alleged abettor,under section 184, to be jointly tried with the principal offender is, inour opinion, subject to his right, under section 179, to claim that not morethan three charges of the same kind may be laid against him in the courseof a single trial. That right is, as far as the abettor is concerned, notaffeoted by the provisions of section 168 (2).
It now remains to consider the charge against the first accused onthe second count in the indictment. Having in the first instance beencharged jointly with the second accused on the “ conspiracy ” count,he was on this count charged with having by himself committed criminalbreach of trust of Rs. 161,576 ’93 during the relevant period. It is clearenough that, according to the case for the prosecution against the firstaccused, the proof relied on to establish his guilt on the charge ofconspiracy amounted also to proof of the actual commission of the offence-specified in the second count. The charge of conspiracy has in our opinionfailed; in the meantime, a great deal of evidence had been led at thetrial on that count which might or might not have been admissibleagainst the first accused if he had been separately tried on the secondcount. In such circumstances, as Sankey J. points out in E. v. Ijuberg 1,great care is called for in the Judge who sums up the case to theJury to keep the separate issues on the tivo charges perfectly dear. Wo aresatisfied that insufficient care was exercised at the trial in this respect.
The trial and conviction of the first accused on the second count wasunsatisfactory for another reason which is in our opinion substantial.Whether or not criminal breach of trust of sums amounting to Rs. 161,576*93was alleged to have been committed in pursuance of a single design(as the prosecution suggests), the fact- remains that the charge against theaccused, according to evidence, involves the alleged commission not ofone offence of criminal breach of trust but of a number of such offencesduring the period covered by the indictment. To include all these offencesin a single count was, of oourse, permissible under section 168 (2) ofthe Criminal Procedure Code. It was essential however that the .fury’sattention should have been directed to the specific evidence on whichthe Crown alleged that each separate offence had been committed. Thiswas not adequately done in the present case- No doubt the error intowhich the learned Judge has fallen was due to the circumstance that,at the trial, the defence concentrated its attention more particularly1 lSCr.A.B. J33.
JA i isr/LEKR C.J.—John ei at. v. Charles de Silva
443
on the issue of “ dishonesty Nevertheless, it was necessary thatthe Jury should have received adequate directions so as to enable themto decide whether, in regard to each alleged offence of criminal breachof trust, all the ingredients of that offence were established to their.atisfaction. We set aside the conviction of the first accused on the secondcount in the indictment, and order that ho be re-tried on this count infresh proceedings.
Conviction of 1st accused on count 1 set aside and re-trialordered on count 2.
Appeal of 2nd accused allowed.