The King v. Sunderam.
1943Present: Soertsz and flearne JJ.THE KING v. SUNDERAM et al.
79-80 D. C. (Crim.) Jaffna, 4,230
Joinder of charges—Conspiracy to commit three offences of'-cheating and forgery—Charge of three conspiracies committed in one transaction—No illegality—failure to frame separate charges for each offence—Curable irregularity—Criminal Procedure Code, ss. 178, 179, 180 (1).
Section 178 of the Criminal Procedure Code, which lays down tha£there shall be a separate charge for ach distinct offence, includes offencescommitted on different occasions even though they fall under the samesection, but non-compliance with the section in regard to the frame ofthe charge is a curable irregularity.
Where the offences of cheating, consisting of three acts committedwithin the space of twelve months, and forgery are committed in thecourse of one transaction, they may be tried together and included in thesame indictment.
Where accused persons are charged with three conspiracies committednot within the space of twelve months but in the course of the sametransaction and with .the offences committed in pursuance of thoseconspiracies,—
Held, that there was no misjoinder of charges.
It should have been made clear that one conspiracy was charged tocommit offences by means of acts, which themselves amounted tooffences.~
^J^PPEAL from a conviction by the District Judge of Jaffna.
H. V. Perera, K.C. (with him H. W. Thambiah and V". Arulam-balam), for accused, appellants.
H. W. R. Weerasooriya, C.C., for Crown, respondent.
Cur. adv. vult.
HEARNE J.—The King v. Sunderam.
February 19, 1943. Hearne J.—
The appellants, the' first and second accused, and the third accused,who was acquitted, were tried in the District Court of Jaffna on anindictment which consisted of three charges—
That between May, 1936, and September, 1937, at Karanavaiand other places in the district of Jaffna, you did act together with acommon purpose for committing one or more of the following offencesto wit, (a) cheating the Sun Life Assurance Co. of Canada, Colombo'by inducing the said Company to deliver to you certain policies of lifeassurance in favour of one T. Chellappah (since deceased), personatedby the third accused, (b) cheating the said Company by dishonestlyinducing the said Company to deliver to you a sum of Rs. 9,000, falselyalleged to have been due on the said policies, (c) forgery of applicationsfor the issue of the said policies of assurance on the life of the said
T.Chellappah, personated by the third accused, and thereby committedthe offence of conspiracy in consequence of which were committed theoffences of cheating, attempting to cheat and forgery or any of thempunishable under sections 113, 102, 403, and 457 of the Penal Code.
That at the times and places aforesaid and in the course of thetransaction set out in count (1), you did deceive the Sun Life AssuranceCo. of Canada by falsely representing to the said Company that theapplicant for assurance in certain policies of Life Assurance was one
T.Chellappah (since deceased) and that third accused was the said
T.Chellappah, whereas in fact the applicant was not the said T.Chellappah nor was third accused the said T. Chellappah, and therebydishonestly induced the said Company to accept the applications forassurance and to issue the said policies, to wit, Nos. 3240071 of July 24,1936, 3243162 of September 12, 1936, and 3250422 of May 20, 1937,in favour of T. Chellappah, in an aggregate sum of Rs. 9,000, which actsthe said Company would not but for the said deceit have done andwhich acts were likely to cause damage to the said Company in thesum of Rs. 9,000 or part thereof, and that you have thereby committedan offence punishable under section 403 of the Penal Code.
That at the times and places aforesaid, and in the course of thesame transaction as aforesaid, you did with intent to commit fraudmake a false document, to wit, an application for a policy of-lifeassurance on the life of one T. Chellappah, dated May 4, 1936, andpurporting to have been made and signed by one T. Chellappah, bywhom you knew it was not made or signed, and that you did therebycommit forgery, intending that the said false document shall be usedfor the purpose of cheating the Sun Life Assurance Co. of Canada,Colombo, an offence punishable under section 457 of the Penal Code.
■ The first and second accused were found guilty on the first and secondcharges and the former was also found guilty, on the third, of an offenceunder section 459 of the Ceylon Penal Code.
The second charge sets out three offences of cheating which, even ifthey were not committed in the course of the same transaction, wouldappear from the dates of the policies to have been committed within thespace of twelve months. .There is non-compliance with section 178of the Criminal Procedure Code which lays down that for every distinct
HEARNE J.—The King v. Sundezam.
offence there shall be a separate charge, and distinct offences includeoffences committed on different occasions even though they may fall underthe same section. This non-compliance, however, has reference merelyto the “ frame of the charge ” and not to the “ mode of trial It is notgoverned by the decision of the Privy Council in Subrahmania Ayyer’s1case, and is a curable irregularity. This does not mean that an irregularityof this kind should not be avoided; but, conceding that there was nomore than irregularity in the charge counsel for the appellants did notpress any objection to the second charge.
The third charge sets out one offence of forgery. It is clear that thisoffence was alleged to have been committed in the course of the sametransaction as the offence of cheating, Which resulted in the issue of one ofthe Assurance Policies referred to in the second charge. Under the lawin India the sections which correspond with sections 179 and 180 (1) ofour law are “ mutually exclusive ”, but this js not the case in Ceylonby reason of the additional words “ which said sections may be appliedseverally or in combination ” which appear in section 178. It follows,therefore, that the offences contained in the second charge may be triedwith the offence of forgery alleged in the third. 'This leaves the firstcharge alone for consideration.
From a perusal of the second charge it appears, Counsel for theappellants argued, that on three separate occasions, according • to thecase for the prosecution, the Assurance Company was deceived andthereby dishonestly induced to issue three separate policies. Each ofthese policies'which were iri the name of Chellappah-required in the firstplace a forged application in his name. The ultimate object of theappellants, according to the prosecution, was to commit the offence ofcheating of Rs. 3,000 in respect of each of the three policies. When,therefore, the indictment charged the appellants (a) with conspiracy tocommit offences of cheating of one kind, (b) with conspiracy to commitoffences of cheating of another kind and (c) with conspiracy to commitoffences of forgery, they were charged with three conspiracies to commitcheating in (a), three conspiracies to commit cheating in (b) and threeconspiracies to commit forgery in (c). With this I do not agree. Thegist of the offence of conspiracy is agreement and one agreement_tocommit cheating (or forgery) does not become three agreements tocommit cheating (or forgery) because, as it transpires, three offences ofcheating (or forgery) are committed in pursuance of the agreement.If there is an agreement to commit one offence of cheating, or three,or as many as are found to be possible, it is one conspiracy.
The second argument of Counsel is this. Under section 113b of thePenal Code if two persons conspire to commit an offence, say falsificationor accounts, they are punishable as abettors of that offence; if theyconspire to commit falsification and criminal breach of trust they arepunishable as abettors of two distinct offences, viz., falsification andcriminal breach of trust. It follows from this that in the latter casethey are guilty of two conspiracies, one to commit falsification and one tocommit criminal breach of trust. With this view of our law I am inagreement.
1 28 Ini. App. 257 (P. C.).
HEARNE J.—The King v. Sunderam.
Applying his argument to the first charge Counsel argued that itcontained, assinning we were against him in regard to his first submissionwith which I have dealt, three charges of conspiracy—(1) to cheatJn aparticular way as in (a), (2) to cheat in another way as in (b) and (3) tocommit the offence of forgery as in (c). These conspiracies, he went on,,not being within the space of twelve months, as stated in the charge -were npt triable together unless they were committed in the same■transaction and the charge alleged that they were.
It is claimed that A. I. R. (1938) P. C. 1930 is an authority for thelatter. I do not see that it is. King v. Saibo1 appears to be an authorityto the contrary. Emperor v. Shahapurkar2 certainly is.
Were the conspiracies in the- same transaction ? If there was a con-spiracy, to put the matter succinctly, to obtain one policy for Rs. 3,000and, the object having been attained except the actual receipt of the sumassured, which was only payable on the death of Chellappah, the con-spiracy, so to speak, spent itself, or more correctly was in abeyance tillChellappah died, whereupon there was another conspiracy the wholeprocess was begun again and, on its termination in the issue of a secondpolicy or its suspension pending Chellappah’s death, there was stillanother conspiracy to carry out the same process, the criminal activitiesof the appellants would have fallen into three water-tight compartmentscorresponding with the three policies, each of them being independent of,and unrelated to, the other two. But it is not in this unrealistic waythat the prosecution has looked at the matter or is obliged to look at it.In framing the indictment the draftsman, on the material availableat the time, was justified in taking the view, as in the result he was alsojustified, that if there were three conspiracies (to cheat, again to cheatand to commit forgery) these conspiracies came into being as the startingpoint of one transaction of carefully planned fraud of the AssuranceCompany and co-existed throughout such transaction. The transactiondid not come to an end when, as the result of one offence of forgery, or,as was found, one offence of uttering a forged document, and one offenceof cheating, the first policy was issued by the Company. That would be aconfusion of transaction with offences. The – term transaction is notsynonymous with the term offence. It cannot be said to be completeas soon as the offence is completed. It is clear that so long as the cons-piracy continues, the transaction which began with the forming of thecommon intention continues” (42 Cal. 1153). There was in this case,in my opinion, one transaction and one only. It continued as long as the.three conspiracies continued.
And what were these conspiracies? The conspiracy to commitforgery was to facilitate the commission of the offences of cheating(in respect of policies) which was the criminal object of the secondconspiracy—I am ■ now speaking chronologically—while the criminalobject of the third conspiracy (cheating in respect of the sums assured)could only be achieved if the offences, which formed the criminal objectof the second conspiracy, were successfully committed and remainedundetected. In fact, these conspiracies were so inextricably bound upwith each other as to form one conspiracy.
11 Bal Notes of Cases 3i.1 30 Bombay 49 (54).
WUEYEWARDENE J.—Marikar and Kcumalla.231
Mr. Weerasuriya, for the Crown, claimed that this was the view that wastaken and that it was intended to charge the appellants with one con-spiracy. I think that, following certain Indian models, this is what couldhave been done. It could have been made clear that one conspiracywas charged to commit offences of cheating by means of acts whichthemselves amounted to offences. But this was not done. In the firstcharge three conspiracies were clearly laid.
In this way there was non-compliance with section 178 of the CeylonPenal Code involving, as I think, no prejudice to the appellants, but therewas no misjoinder of charges. The appellants were properly charged withthree conspiracies in one transaction and with the offences committedin pursuance of those conspiracies.
The evidence against the appellants was overwhelming and theirappeals are dismissed.
Soertsz J.—I agree.