019-NLR-NLR-V-12-THE-KING-v.-PULLE.pdf
( 63 )
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice.
1909.
February 22.
THE KING v. PULLE.D. C. (Criminal), Colombo, 2,173.
Criminal breach of trust—Failure to account—Insufficiency—Misappro-priation of a large sum made up of small sums—Separate charges—Ceylon Penal Code, s. 398.
In a charge of criminal breach of trust it is jaot enough for theprosecution merely to prove that the accused has no't accountedfor all the money that he has received and for which he was boundto account, for there may be other explanation of the deficiencybesides dishonesty; the prosecution must prove circumstancesfrom which dishonesty oan be inferred.
Where the sum in respeot of which a charge of misappropriationis laid is made up of several small sums received at different times,it is not necessary to make a separate charge in respect of each ofthe smaller sums.
A PPEAL by the accused from a conviction by the District Judge(H. A. Loos, Esq.) on a charge of criminal breach of trustas Treasurer of the Provident Fund of the Government PrintingOffice. The facts material to the report appear in the judgment.
Tambiah, for the accused, appellant.
Walter Pereira, K.G., 8.-0., for the Crown.
Cur. adv. vult.
February 22, 1909. Hutchinson C.J.—
The appellant was convicted of criminal breach of trust in respectof a sum of Rs. 702 entrusted to him in the capacity of Treasurer ofthe Provident Fund of the Government Printing Office. He receivedon various dates during the year ending June 30, 1906, a number ofsums amounting to Rs. 10,960*47, all of which it was his duty asTreasurer to pay into the Mercantile Bank to the credit of the Fund.He paid in only Rs. 10,257*53 in that year, the balance Rs. 702*85is the sum in respect of which he was charged.
The matter for the court to decide was whether he had committedcriminal broach of trust in respect of that Rs. 702, or whether itwas merely a case of civil liability; whether he had dishonestlymisappropriated it or converted it to his own use, or dishonestlyused or disposed of it in violation of the contract which he had madetouching the.discharge of his trust.
His. explanation of the deficiency was that he lent the money tovarious members of the Fund, iii accordance with an old-establishedand recognized practice. There is no adequate evidence of such a
( «4 1
1909.
February 22.Hutchinson
practice ; and he has not given the names of the persons to whomhe lent the Bs. 702 or any part of it; and there is no evidence beyondhis own statement in proof of the loans. The sugg'estionthat thedocumentary evidence—the ledger which he had kept and the
0. U.’s and notes wldch he had received from the borrowers—which would have proved the loans have been destroyed orsuppressed by the prosecution has, as far as I can judge, nofoundation. In my opinion the evidence proves that he dishonestlymisappropriated the Bs. 702.
His counsel contends that this is only a case of a general deficiencyoreating a civil and not a criminal liability. The reported cases ofcharges of “ embezzlement ” and of “ criminal breach of trust ”show that it is not enough for the prosecution merely to prove thatthe servant who is charged has not accounted for all the money thathe has received and for which he was bound to account, for there, maybe other explanation of the deficiency besides dishonesty, and theprosecution must prove circumstances from which dishonesty canbe inferred. Such a circumstance is, in the present case, an explana-tion given by the accused, which would apparently have been easilyoapable of proof, but which is not proved, and which the courtbelieves not to be true. But the cases do not decide that, wherethe charge is of misappropriation of a sum which is made up ofseveral small sums received at different times, it is necessary tomake a separate charge in respect of each of the smaller sums. Thatwould often be impossible. You might be able to show that theservant had received on your account a hundred separate rupeesfrom so many separate sources, and that he had dishonestlymisappropriated half of them; but if it was necessary to show that hehad misappropriated any particular rupee, it could not be done, forit would always be possible that that rupee was one of the fifty forwhich he had duly accounted. I decided the same point last.November in 142, D. C., Kandy (Criminal) 1899.1
The appeal is dismissed.
Appeal dismissed.
♦
1 S. O. Min. November 12, 190S.