066-NLR-NLR-V-11-THE-KING-v.-VAN-CUYLENBERG.pdf
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ms
June 18»
Present: Mr. Justice Grenier.
THE KING v. VAN CUYLENBEBG.
D. C. {Grim), Kandy, 1,901.
Cheating—Obtaining employment by means of forged certificates—" Dis-honestly " Wrongful loss ”—Ceylon PoruU Code, ss. 22, 398, 400. 'The accused deceived B by producing some forged certificates ofcharacter, and thereby induced him to employ him and to pay hima salary. B stated in evidence that he would not have employedthe accused if he had not been so deceived, and that the accused wasan incompetent person, and that he suffered loss owing to accused’sbad work.The accused was charged with cheating under section
400 of the Penal Code and was convicted.
Held, that the conviction was right.
A
PPEAL by the accused from a conviction by the Acting DistrictJudge of Kandy (G. S. Schneider, Esq.) on a charge of
cheating under section 400 of the Penal Code. The facts materialto the report are stated in the judgment.
H. A. Jayewardene, for the accused, appellant.
Walter Pereira, K.G., S.-G., for the Crown.
Cur. adv. vult.
June 18, 1908. Grenier A.J.—
I see no reason to interfere with the conviction and sentence inthis case. The accused was clearly guilty of the offence of cheatingunder section 400 of the Ceylon Penal Code. It has been provedthat he produced some false certificates of character and competencypurporting to have been given .to him by Mr. Lushington, and thusobtained employment under Mr. Bellario. There can be noquestion that he thereby deceived Mr. Bellario, and dishonestlyinduced him to employ him in his service as a conductor. Clearly,Mr. Bellario would not have engaged the accused had he known thatthe certificates were not genuine. The accused, therefore, made afalse representation .to Mr. Bellario, and was guilty of practising adeception on him. The prosecution has proved beyond all doubtthat Mr. Bellario was deceived by the accused, and the questionis whether he dishonestly induced Mr. Bellario to employ him in hisservice. The word “ dishonestly ” is defined in section 22 of thePenal Code and runs as follows: ‘ ‘ Whoever does anything with theintention of causing wrongful gain to one person or wrongful loss toanother person is said to do that thing dishonestly. ”
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A man’s intentions, when not expressed, can only be gatheredfrom what he does; and to my mind when the accused producedthese false certificates to Mr. Bellario, his intention was to gain tohimself wrongfully the salary attached to the post of conductor.
The evidence shows that .the accused was an jnoompetent man,and Mr. Bellario in the evidence that he gave before the PoliceMagistrate stated that owing to accused’s bad work he suffered loss.Mr. Bellario was not cross-examined on this point, and, as thelearned District Judge has remarked, his evidence stands uncon-tradicted. But it is not necessary, as I read section 398, that thereshould have been any actual loss or damage. The words of thesection are: “ or intentionally induces the person so deceived to door omit to do anything which he would not do or omit if he were notso deceived, and which act or omission causes or is likely to causedamage or harm to that person in body, mind, reputation, orproperty. ” It seems to me that the employment of the accused,considering that he had produced false certificates of character andcompetency, was more than likely to cause damage or loss to Mr.Bellario. In the first place, the accused, if he had not committedthe offence of forgery himself in regard to these certificates, certainlyuttered them or made use of them for the purpose of obtainingemployment; and it is only reasonable to presume that a person ofhis character would in all probability, if allowed to remain on theestate, cause loss or damage to the person whom he had deceivedinto employing him.
There is an illustration under section 398 which appears to mepractically to meet the present case. That illustration (e) says:“A, by pledging as diamonds articles which he knows are notdiamonds, intentionally deceives Z and thereby dishonestly inducesZ to lend money; A cheats. ” If we applied the facts of his case tothis illustration, the following will be the result:—A, by making useof certificates of character and competency which he knows arefalse, intentionally deceives Z and thereby dishonestly induces Z toemploy him and to pay him a salary. In these circumstances it isclear .that the offence of cheating has been committed in just thesame way as stated in illustration (e).
I do not see what difference it would make, as argued by theappellant’s counsel, if the accused had proved a competent conduc-tor and had thus earned his salary. That question, however, neednot be entered into, as the evidence .is all one way, that the accusedhad proved himself incompetent.
It was argued for the appellant that the depositions of Mr. Bellariowere wrongly admitted. Mr. Lushington’s evidence shows that hesaw Mr. Bellario in Matale on his way to Colombo to take steamer forItaly, and that to the best of his belief he did go away to Italy aboutthree weeks before the trial of this case, and that he did not knowwhen he was likely to return. Mr. Bellario’s depositions were read
1908.
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A.J.
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1908.June 18.
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without objection in the Court below, and not a single question wasput to Mr. Lushington as to his means of knowledge of Mr. Bellario’swhereabouts. I find that the Judge records that the facts were alladmitted, except the one fact that Mr. Bellario suffered any loss.In these circumstances I am of opinion that the depositions of Mr.Bellario were rightly admitted and considered by the District Judgein his judgment.
Appeal diamineed.
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