104-NLR-NLR-V-71-THE-SOLICITOR-GENERAL-Appellant-and-AHAMADULEBBE-AVA-UMMA-and-4-others-Respo.pdf
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The Solicitor-General v. Ava Umma
1988Present: T. S. Fernando, J., and Alles, J.THE SOLICITOR-GENERAL, Appellant, andAHAMADULEBBE AVA IJMMA and 4 others, Respondents
S. C. 36 of 1966—D. C. (Crim.) Batticaloa, 1287
Evidence—Charge of committing forgery of a deed of transfer of a land—Vendee andthe two attesting witnesses made co-accused—Competency of the owner of theland and the attesting notary to give evidence—Evidence Ordinance, es. 68,69, 71—Notaries Ordinance (Cap. 107), s. 31, Clauses (8), (9), (10) and (12)—Prevention of Frauds Ordinance, s. 2.
In a criminal case involving the offence of forgery of a deed, of transfer ofimmovable property, the two attesting witnesses of the execution of the deedwere the 3rd and 4th accused. The prosecution, as its contention was that itwas not competent for it to call the two attesting witnesses, sought to call,as witnesses, an owner of the land and the notary who attested the deed.
. Counsel for the defence objected to the production of the deed on the groundof a lack of compliance with section 68 of the Evidence Ordinance. Thetrial Judge upheld the objection and acquitted the accused.
Held, that section 68 of the Evidence Ordinance had no application to acriminal case where the prosecution had made the attesting witnesses alsoaccused in the case and, far from seeking to use the deed as evidence, wasimpugning it as a forgery committed as a result of the abetment of the saidoffence on the part of the witnesses and the vendee. In such a case, the elementsof the charges which have to be established by the prosecution may be establishedin any of the ways permitted by law.
A PPEAL from a judgment of the District Court, Batticaloa.
V. 8. A. Pullenayegum, Crown Counsel, with R. GunatiUeke, CrownCounsel, for the appellant.
E. Chitty, Q.C., with A. M. Coomaraswamy, for the accused-respondents.
Cur. ado. wit.
T. S. FERNANDO, J.—The Solicitor – General t>. Ava Umma
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May 15, 1068. T. S. Fernando, J.—
This is an appeal by the Solicitor-General against an order acquittingin somewhat unusual circumstances the five accused-respondents whohad been indicted on a number of charges, the principal one relating to aconspiracy to commit forgery of a valuable security, viz., a deed of transferof immovable property, in consequence of which conspiracy it was allegedthe said forgery was indeed committed-
The 5th accused-respondent is alleged to be the vendee upon the deedin question, the 3rd and 4th accused-respondents are alleged to haveattested as witnesses at its execution, while the 1st and 2nd accused-respondents are alleged to have been two of its eleven executants.
As soon as the deed was shown to the first witness called for the prose-cution (a woman who claimed to be one of those in truth entitled to theland which the alleged forged deed is said to have purported to conveyto the 5th accused), when that witness was being examined in chief,counsel for the defence objected to its production on the ground of a lackof compliance with section 68 of the Evidence Ordinance. After someargument, the learned District Judge upheld the objection. Thereuponthe proctor who was conducting the prosecution on behalf of the Attorney-General applied for a postponement to enable him to consult the latterand obtain certain instructions which he submitted were necessitatedby the order upholding the objection to the production of the deed. Thetrial judge refused, this iapplication and made an order " acquitting anddischarging the accused ”.
A preliminary objection to the appeal to this Court was made by counselfor the accused-respondents on the ground that what took place afterthe order upholding the objection to the reception of the document wasin reality a refusal on the part of the Crown to lead evidence. We haveconsidered this objection but, considering the novelty and difficulty ofthe point of evidence that arose so early at the trial, we think the learnedtrial judge should have, acceded to the application for a postponementfor the purpose indicated by the proctor for the prosecution. If hethought such a step expedient, he could even have made an order directingthe Crown to pay to the defenoe a specified sum as the day's costs. Theobjection that was upheld had not bean foreshadowed at the non-summaryinquiry, and the proctor was obviously taken by surprise and was notprepared to reply to it adequately or to shape the conduct of his case whenthe order made turned out to be adverse to the prosecution. In over-riding the preliminary objection, we bear in mind also the provisions ofsection 338 (2) of the Criminal Procedure Code whereby the legislature,in addition to the right of appeal against an acquittal, conferred onthe Attorney-General a right to appeal against any judgment of finalorder pronounced by a Magistrate's Court or a District Court in anycriminal case or matter.
39 -PP 006137 (98/08)
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T. S. FERNANDO, J.—The Solicitor-General v. Ava Umma
We can now turn to the important question that is raised by this appeal.The deod referred to above bears No. 3915 and purpoit^ to have beenexecuted on the 6th January, 1961 in the presence of one Mr. SamithambyKandappan who attested its execution as the notary. In the attestationclause of tho said deed, Mr. Kandappan (whose name, I observe, appearson the list of witnesses in the indictment) has certified that the elevenexecutants were not known to him, but that the two subscribing witnesseswere known to him and that they declared that the executants wereknown to them, and the executants and the witnesses all signed in hispresence and in tho presence of ono another, all being present togetherat the same time. Clause (12) of section 31 of the Notaries Ordinance(Cap. 107) appears therefore to have beon complied with, and, althoughthe executants wore not known to the notary, clauso (9) of the samesection permitted attestation of tho deed in these circumstances by thenotary. I assume that tho prosecution intended to call Mr. Kandappanas its witness. Indeed, a statement to that effect was made by thoproctor who appeared for the prosecution in the course of his roply tothe objection raised against the reception of the deed at'the trial. Asthe prosecution’s contention was that it was not competent for it tocall the two attesting witnesses, the proper course it should have adoptedwould appear to have been to call the notary as a witness even beforetho alleged owner or owners of the land.
The learned trial judge has held that the prosecution has failed tosatisfy section 68 of the Evidence Ordinance. That section prohibitstho use as evidence of any document required by law to be attesteduntil one attesting witness at loast has been called for the purpose ofproving its execution, if there be an attesting witness alivo, and subjectto the process of the court and capable of giving evidence. I think itis implicit in this finding of tho trial judge that he did not consider thenotary to be an attesting witness within the moaning of section 68.Crown Counsel before us himself contended that the notary is not suchan attesting witness. The previous cases of this Court which haveconsidered this question have not taken a uniform view thereon, andMr. Chitty invited us towards the end of his argument to consider whetherthis was not a question which desorved a reference to a bench of fivojudges. After giving thought to the matter of such a reference, we donot think that such a reference is called for here, as wo are in any eventupholding the argument of learned Crown Counsel on another questionwhich, in our opinion, suffices for the decision of the present appeal.We would, however, draw attention to the state of the authorities inregard to the question whether the notary is himself an attesting witness.It may be mentioned that section 2 of the Prevention of Frauds Ordinancewhich is, after all, the statute that makes validity of a deed depend onnotarial attestation, requires the deed to be signed in the presence ofa licensed notary public and two or more witnesses. This same differentia-tion between the notary and the witnesses is contained in clauses (8),
, (10) and (12) of section 31 of the Notaries Ordinance. The Evidence
T. S. FERNANDO, J.—The Solicitor-General v. Ava Umma
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Ordinance is however silent on the question of any such differentiation andcontemplates only the calling of an attesting witness. In Vdupillai v.SivaJcamipiUail, Middleton J. referred to the Judicial Dictionary meaningof “ to attest ” which is “ to bear witness to a fact ”, a meaning whichSinnetamby J. adopted in Marian 0. Jesuthasan 2. But Crown Counselreferred us to an interpretation of the expression ** attesting witness ”itself, rendered by the Lord Chancollor in Burdett v. Spilsbury 8, in thefollowing language : “ The party who sees the will executed is in fact awitness to it; if he subscribes as a witness, he is then an attestingwitness.”
In the earlier cass we have examined, Kiribanda v. Ukkuwa *, decided,however, before the enactment of the Evidenco Ordinance, Burnside C. J.(with Withers J. agreeing) held that, in an instrument falling withinsection 2 of the Prevention of Frauds Ordinance, a notary is an attestingwitness in precisely the same sense as are the two witnesses who with himare required to attest the execution thereof. Seven years later, in 1899,in Somanaderv. Sinnatamby 5 La wrie J. stated that “the later decisionsof this Court regard a notary as an attesting witness and (though I amnot sure that I quite agreo) I am willing to hold that, by proving thesignature of the notary, the requirements of the 69th section (of theEvidence Ordinance) have been fulfilled.” In Ramen Chetty v. AssertNaina 6 the Court held that, even on the assumption that the notary isan attesting witness within the meaning of section 68, the documentcannot be proved without proof of the signature of the executant. Thiscase was referred to by Schneider A. J. in his obiter dictum in Seneviratne
Mendis7 which I reproduce below in full: “ The language of section 2of Ordinance No. 7 of 1840, and in particular the words “ the executionof such writing, deed, or instrument be duly attested by such notary andwitnesses ” to my mind leave no room for doubt or contention thatthe notary is an attesting witness in precisely the same sense as theother two witnesses mentioned in that section. This was the view takenin Kiribanda v. Ukkuwa {supra) and in Somanader v. Sinnatamby {supra).It was argued that when it is enacted in section 68 of the Ceylon EvidenceOrdinance 1895 that a document required by law to be attested is notto be used as evidence until one attesting witness at least has beencalled “ for tho purpose of proving its execution ” the witness meant wasnot the notary but one of the other attesting witnesses. I do not quiteagree with this contention. It would be correct if qualified. The objectof calling the witness is to prove the execution of the document. Proofof the execution of the documents mentioned in section 2 of No. 7 of1840 means proof of the identity of the person who signed as maker and
1 (1907) 1 A. C. B. 181.• (1899) 1 Tambyah'a Rep. 38 (or 1 Koch'a Rep. 16)
(1956) 59 N. L. R. 349.* (1909) 1 Curr. L. R. 257.
(1843) 10 Cl. & Fin. 340 (8 Eng. Rep. at 800-1).
'-J
(1892) 1 S. C. R. 216.» (1919) 6 C. W. R. 212 (or 1 Law Ree. 47).
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T. S. FERNANDO, J.—The Solicitor-General v. Ava Umma
proof that the document was signed in the presence of a notary and twoor more witnesses present at the same time who attested the execution.If the notary knew the person signing as maker he is competent equallywith either of the attesting witnesses to prove all that the law requiresin section 68—if he did not know that person then he is not capable ofproving the identity as pointed out in Ramen Chetty v. Assen Naina(supra), and in such a case it would be necessary to call one of the otherattesting witnesses for proving the identity of the person. It seems tome that it is for this reason that it is required in section 69 that theremust be proof not only that “ the attestation of one attesting witnessat least is in his handwriting ” but also “ that the signature of theperson executing the document is in the handwriting of that person.”If the notary knew the person making the instrument he is quite com-petent to prove both facts—if he did not know the person then thereshould be other evidence. When the instrument is signed with a markit is evident that the language of section 69 must be read to mean thatthere must be proof that the mark was placed by the person whose markit purports to be ”. Fairly recently, in Wijegoonetilleke v. Wijegoone-tilleke 1 it was held that a notary who attests a deed is an attestingwitness within the meaning of that expression in sections 68 and 69 of theEvidence Ordinance. A fortnight later, in Marian e. Jesuthasan (supra),this Court held that where a deed executed* before a notary is sought tobe proved, the notary can be regarded as an attesting witness withinthe meaning of section 68 of the Evidence Ordinance provided only thathe knew the executant personally and can testify to the fact that thesignature on the deed is the signature of the executant. If this lastmentioned case is to be followed by us, then the notary in the case nowbefore us cannot be regarded as an attesting witness. In all the caseswhich were brought to our notice or which we have ourselves examinedthe party seeking to produce the deed desired to use it as evidence ofits contents. In the case before us the prosecution does not seek to usedeed No. 3916 as evidence; indeed, its contention is that it is not agenuine deed and is, in truth and in fact, a forged instrument. As wehave stated already, it does not become nocessary for us on this appealeither (a) to choose which of the somewhat varying views on the questionwhere the notary is an attesting witness within the meaning of section68 we should adopt or (6) express our own view thereon, for the reasonthat we think that section 68 has no application to a case where the deedis not claimed to be a true document and the claim is that it has indeedbeen forged.
The principal point made by the trial judge in his order upholding theobjection to the showing of the deed to one of the true owners probablywith the object of getting her to say that she did not set her thumb markthereon is that the prosecution has not given an opportunity to the wit-nesses to the deed (whom the prosecution seeks to identify as the 3rdand 4th accused) to deny the execution of the document or to say that
1 (1956) 60 N. L. B. 660.
T. S. FERNANDO, J.—The Solicitor-General v. Ava Umma
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they cannot recollect its execution. It seems to us that the learnedjudge has here misdirected himself completely when he held that theexecution of the deed could be proved in view of section 71 of the EvidenceOrdinance only where the attesting witnesses deny or do not recollectthe execution of the document. He has, inadvertently perhaps, over-looked the important circumstance that this was a criminal trial andthat the 3rd and 4th accused were not competent witnesses for thoprosecution. The question of complying with section 71 cannot arisein such a case. Nor can it be the law that in order to prove the complicityof the attesting witnesses in the forgery of a deed it is inevitable that atleast ono such witness must be made a Crown witness after granting hima conditional pardon. Grown Counsel attempted to derive some supportfor the contention that an attesting witness who is not legally competentto give evidenoe is embraced in the expression “ if no such attestingwitness can be found ” occurring in section 69 of the Evidence Ordinanceby relying on a decision of the Allahabad High Court in Bam JassaKunwar v. Sabu Narain Das1, itself a case where a deed was soughtto be used as evidence. Malik J. (with Bonnet J. agreeing) there stated:—*Tf I may, with great diffidence, say so, the words “ can be found ” arenot very appropriate and, to my mind, they must be interpreted toinclude not only cases where the witness cannot be produced because hecannot be traced but cases where the witness for reasons of physical ormental disability or for other reasons, which the Court considers sufficient,is no longer a competent witness for the purpose as is provided in Boction68, Evidence Act. The law requires one more formality that a documentrequired by law to be attested shall not be admitted as evidence untilone attesting witness at least has been called for proving its execution,provided there be such a witness alive and subject to the process of thecourt and capable of giving evidence”. Learned Counsel for theaccused-respondents argued that “ capable of giving evidenco ” heremeans physical or mental capacity to testily but does not include legalcapacity or competency. We do not think there is justification forlimiting the meaning of the expression in the manner so suggested.Therefore, even on an assumption that section 68 would ordinarilyhave been applicable, we think that the legal incompetency of the 4thand 5th accused to testify for the prosecution brings this case with theclass of cases contemplated in section 69 of the Evidence Ordinance.As we understand the position, the prosecution’s case is that the notaryis available to be called ; he is able to say that the 3rd and 4th witnessessigned in his presence as witnesses; there is the evidence of a hand-writing expert to corroborate his testimony that the signatures of thepersons who have signed as witnesses are in the hand-writing of the 3rdand 4th accused respectively; finger-print'evidence can demonstratethat the thumb prints of two of the executants tally with the thumbprints of the 1st and 2nd accused. Thus, it is claimed, if section 69 isapplicable the prosecution’s case is capable of being proved provided thetrial oourt accepts the evidenoe proposed to be led.
111946) A. I. R. AU. <a 183.
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Jqfferjee v. Subramaniam
Although wo have set out at some length the nature of some of thearguments addressed to us and our own views thereon, we desireto emphasize that we base our order allowing this appeal on the opinionwe hold that section 68 of the Evidence Ordinance has no applicationto a criminal case where the prosecution has mado the attesting witnessesalso accused in the case and, far from seeking to uso the deed as ovidonce,is impugning it as a forgery committed as a result of the abetment ofthe said offence on tho part of tho witnesses and the vondoo. In such acase the elements of the charges which have to be established by theprosecution may, of course, bo established in any of tho ways permitted, by law.
Wo reverse the ordor of acquittal and direct that tho accused bo retriodon the indictment dated 8th April, 1965, the retrial to take place beforea District-Judge other than the Judge who made tho ordor of acquittal.
Alles, J.—I agroo.
Acquittal set aside.