003-NLR-NLR-V-16-THE-KING-v.-PEIRIS.pdf
( 11 )
Present; Pereira J.THE KING v. PEIRIS.118—D. G. (Crim.) Colombo, 3,337.
Forgery—Forging initials of addressee in delivery book by letter peon—Intention to defraud—Evidence Ordinance, s. IS—Evidence ledagainst accused on charges on another indictment to prove that actwas not done accidentally.
The accused, Who was entrusted with a 'letter in which wasenclosed a sum of money, misappropriated the money and forgedthe initials of the peon of the addressee in the delivery book. Itwas contended that the accused could not be said to be guilty offorgery, inasmuch as in forging the initials the accused could notbe said to have intended to defraud anybody, as the misappropria-tion had already been committed.
Held, that the accused was guilty of forgery.
“ The accused by his act of making a false entry in the delivery-book deceived Mr. van Twest into the belief that he had dulydelivered the letter; and the advantage that He' gained was immu-nity, temporary though it be, from detection, arrest, or other■»al process. The elements of deception and advantage are here,i they constitute fraud.”
The accused in this case was oharged on another indictmentwith two other offences similar to those with which he was chargedin this case. Counsel for the Crown was allowed, on the supposedauthority of section 15 of the Evidence Ordinance, to lead evidenceon that indictment as evidence against the accused on the chargein this case.
Held, that the evidence was wrongly admitted. “ There wasno pretence on the part of the accused that his act of misappro-priating the Re. 4*76 or of forging the initials was accidental, andit was manifest that the acts themselves in nature were such asto exclude altogether the idea of accident.”
'J'HE facts appear from the judgment.
St. V. Jayewardene, for the accused, appellant.
De Saram, C.C., for the Crown.
Cut. adv. vult_
November 26, 1912. Pereira J.—
In this case the accused has been convicted of forgery and criminalbreach of trust and sentenced to six months’ rigorous imprisonmenton each count, the sentences to run consecutively. The case forthe prosecution is that the accused was entrusted by Messrs. Forbes& Walker with a letter, in which was enclosed Rs. 4*75, to be taken.and delivered to Mr, Wickwar, a gentleman in the Surveyor-General’sOffice, and that the accused misappropriated the money and forgedin the delivery book the initials “ W.S.,” to indicate that the letterhad been delivered to and taken charge of by one WijesingheSamelis, a peon in the Surveyor-General’s Office. Mr. van Twest,a clerk of Forbes & Walker, on seeing these initials was satisfied thatthe letter had been duly delivered, and the misappropriation of themoney thus remained undetected.
Counsel for the accused argued that, assuming the facts to be asstated by the Crown, the accused could not be said to be guilty offorgery, inasmuch as in forging the initials of Sarnelis the accusedcould not be said to 'have intended to defraud anybody, as themisappropriation of the Rs. 4 * 75 had already been committed. Hecited the case of Mukerjee v. Emperor 1 in support of his contention.In that case it was held that the alteration of accounts so as to showthe receipt of a sum of money criminally misappropriated in orderto remove evidence of such misappropriation was not an offenceunder section 465 of the Indian Penal Code, there being no intentionto commit fraud. Section 465 of the Indian Code is the sectionthat penalizes forgery. The Court in that case observed that the-real purpose of the accused was not to defraud, but to remove theevidence of crime. Can the same be said of the purpose theaccused in the present case? In the Indian case there iB ing
11. h. R. 36 Cal. 955.
( is )
to show at what stage of the proceedings the alleged' forgery wasdetected, or what the advantage was that the accused gained orintended to gain thereby, independently, of coarse, of the advantageof " removing the evidence of crime,” for which, aB pointed out bySir Lawrence Jenkins G.J., the accused was triable under anothersection of the Code, namely, section 201. The Chief Justice further- observed: “ As to whether or not there is an intent to defraud inany particular case manifestly must depend on the actual circum-stances of that case,” and on that ground he distinguished the casefrom the cases of Sartor v. Queen Empress1 and Emperor v. RashBehair Das.3 Now, the term “ fraudulently ” is defined by thePenal Code to mean ” with intent to defraud,” and It has been laiddown that ” where there is an intention to deceive, and by means ofthe deceit to obtain an advantage, there is fraud ” (see the case ofMohammed Sand Khan *). In the present case the accused by hisact of making a false entry in the delivery book deceived Mr. vanTwest into the belief that he had duly delivered the letter; and theadvantage that he gained was immunity, temporary though it be,from detection, arrest, or other legal process. The elements ofdeception and advantage are here, and they constitute fraud. Theappellant’s counsel has further taken exception to a large volumeof evidence admitted by the District Judge. It appears that theaccused stood charged on another indictment with two other offencessimilar to those with which he was charged in this case. Counselfor the Crown was allowed to lead evidence on that indictment asevidence against the accused on the charges in this case, and a massof evidence on charges totally unconnected with the charges in thiscase was accepted. This was done on the authority, it is said, ofsection 15 of the Evidence Ordinance, which enacts that " whenthere is a question whether an act was accidental or intentional ordone with a particular knowledge or intention, the fact that suchact formed part of a series of similar occurrences in each of whichthe person doing the act was concerned is relevant.” Now, therewas no pretence on the part of the accused that his act of misappro-priating the sum of Rs. 4*75 or of forging the initials of Samelis wasaccidental, and it was manifest that the acts themselves in naturewere such as to exclude altogether the idea of accident, and thereception of the mass of evidence that I have referred to was, tosay the least, grossly irregular. In his judgment the District Judgesays that this evidence contributes a “ very strong point against thetruth of accused’s evidence regarding the sum of Rs. 4 • 75.”
In these circumstances, I am obliged to observe that, in.spite ofthe asseverations of the learned Judge, it is with difficulty andutmost reluctance that I make up my mind to acquit him altogetherof unconscious bias. In view, however, of the evidence mentioned i *
i (1894) I. L. R. 22 Cal. 312.3 (1308) I. L. R. 35 Cal. 450.
* (1898) 21 All. 118,115.
IMS.
Pbbbiba J.
Kings.
Penis
above, I have made a special effort to form an independent opinion,on the evidence led on the charges in the present indictment, andthe conclusion I have arrived at is adverse to the accused. A strongpoint against the accused is that >he not only pointed out the peonHendrick as the person to whom he delivered the letter, but hepointed out one Croos as a person who was present at the deliveryof the letter, and it has been conclusively shown that Croos had noteven attended office on August 12. It is said that it has not beenclearly Bhown that the initials forged by the accused were the initialsof the name of the peon Samelis. I think there is sufficient toindicate this, but, in any case, forgery may be committed by themaking of a false document in the name even of a fictitious person.
affirm the conviction and sentence.
Conviction affirmed.