062-NLR-NLR-V-42-THURAIAPPAH-v.-ELIYAWAN.pdf
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HOWARD C.J.—Thuralappah v. Eliyawan.
1941Present: Howard C.J.
THURAIAPPAH v. ELIYAWAN.
807—M. C. Jaffna, 10,457.
False information to public servant—Intent to cause the public servant to useinformation to injury of a person—Penal Code, s. 180.
Where the accused gave false information to a Fiscal’s Process Serverwith regard to the identity of the defendants in a civil action and causedhim to serve summons on the wrong persons with the result that judgmentwas entered against the defendants without notice to them,—
Held, that the accused had given false information to a public servantwithin the meaning of section 180 of the Penal Code.
Kindersleyv. David (11 N. L..R. 371) doubted.
PPEAL from a conviction by the Magistrate of . Jaffna.
N. Nadarajah, for the accused, appellant.
H. W. Thambiah, for the complainant, respondent.
Cur. adv. vult.
February 14, 1941. Howard C.J.—
This is an appeal from a conviction by the Magistrate of Jaffna on acharge of giving to a Fiscal’s Process Server, a public servant, informationwhich the appellant knew to be false contrary to section 180 of the PenalCode. It was further stated in the particulars of the charge that theappellant pointed out certain persons to the process server as VellayanKasian, Vellayan Maniccan and Vellayan Murugan, the defendants incase No. 13,048 of the Court of Requests, knowing it likely that he wouldcause the said process server to use his lawful powers as a public servantto the injury or annoyance of the said Vellayan Kasian, Vellayan Maniccanand Vellayan Murugan. It was established before the Magistrate by theevidence of the process server, V. Ponnambalam, that the appellantpointed out certain persons as being the defendants in the civil case
R. Jaffna, No. 13,048. Ponnambalam had been entrusted with asummons to serve on these defendants and proceeded to serve it on thesepersons who were not the witnesses—V. Kasian, V. Maniccan and V.Murugan. He states that he believed the appellant was pointing out thethree proper persons. The three persons who were served, accepted thesummons without protest. After service Ponnambalam reported to theFiscal’s Officer that he served the summons on the persons named therein.The Deputy Fiscal subsequently received a complaint from the defendants’Proctor in case No. 13,048 that judgment had been obtained withoutservice of summons on the defendants. The Deputy Fiscal then held aninquiry and subsequently instituted the proceedings that resulted in theconviction of the appellant of committing an offence under section 180 ofthe Penal Code;
It is contended by Counsel for the appellant that the facts proved inthis case do not establish an offence under section 180 of the Penal Code.In support of this contention I have been referred to Kindersley v. David ‘,
> II N. L. H. 371.
HOWARD C.J.—Thuraiappah v. Eliyawan.
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where the accused gave information, which was found to be false, to theChairman of the Local Board against an Inspector employed by the saidBoard. It was held that he was not liable to be convicted of an offenceunder section 180 of the Penal Code, inasmuch as the Chairman could not,in the lawful exercise of his power, cause any injury to the personcomplained against. In this case it appeared that the Chairman althoughpresiding over the Board had no power to act by himself independently ofthe Board. Any action taken is the action of the Board, a bodycorporate. Grenier J. was of opinion that an offence under section 180is committed in cases where a person give false information to a publicservant who has power, to be exercised by him to the direct and immediateprejudice of another against whom the information is given. In supportof his opinion Grenier J. referred to the Indian case of Regina v. Periananwhere it was held that section 182 did not apply if the public servantmisinformed is only competent to pass and passes on information, and thepower exercised by him cannot tend to any direct or immediate prejudice- of the person against whom the information is levelled. Counsel for theappellant contends that Ponnambalam, the .process server, could notexercise any such power. All he could do was to make a report to theFiscal and the fact that the Fiscal could exercise such power did not onthe authority of Regina v. Perianan bring what was done by the appellantwithin the ambit of section 180. The authority of Regina v. Periananhas been doubted and seems to be contrary to the law as stated inEmperor v. Jonnalagadda Venkatrayudu", and in the following passagefrom Mayne’s Criminal Law of India, p. 592 :—
“ The Madras Court has held that false information given to a villagemagistrate, who could not himself act upon it, but could only pass iton to some higher authority, did not come within the words of thissection. They thought that the words 1 to use his lawful power ’referred to some power to be exercised by the officer misinformed,which shall tend to some direct and immediate prejudice of the personagainst whom the information is levelled. But, conceding this to beso, surely information given to A, for the purpose of being passed onto B, and which it was his bounded duty to pass on, must beconsidered as having been given, and intended to be given, to B. Itwould, of course, be different if the false information was given tosomeone who was under no legal obligation to take any action upon it.False information that stolen property would be found in a particularhouse, if searched for, does come within the section. If the informa-tion names the houses of several persons, only one offence has beencommitted. ”
Mayne, however, as pointed out by Layard C.J., in Perera v. Silva',does concede that no offence is committed if the false information is givento someone who is under no legal obligation to take any action on it.Some power must be exercised by the officer misinformed, which shalltend to some direct and immediate prejudice of the person against whomthe information is levelled. In this case it is relevant to consider whatwere the powers and obligations of Ponnambalam, the process server,
11. L. R. 4 Mad. 241.* I. L. R. 28 Mad. 586.
4 A. C. R. 33.
280Dias v. lyasamy.
on receipt of the information that certain persons were the defendants, in
R. Jaffna, No. 13,048. It was then his power and duty to serve thesummons on the persons. Did this act of service taken by him tend tosome direct and immediate prejudice against such defendants ? I do notthink that it can be argued that it did not. The result of the act ofservice was a report to the Deputy Fiscal by Ponnambalam stating thatservice on the defendants had been effected. On that information theCommissioner of Requests could and in fact did proceed to make an orderof Court prejudicial to the defendants in the case. I am, therefore, ofopinion that the false information supplied by the appellant brought thecase within the ambit of section 180.
Counsel for the appellant has also contended that even if the offenceis within the ambit of section 180 proof of its commission has not been madein strict compliance with the law. The ingredients of the offence ascharged in tins case may be summarized as follows*: —
that the appellant gave some information ;
that the person to whom it was given was a public servant;
that the information was false ;
that the appellant when giving it knew it to be false ;
that thv' appellant intended or knew that his information will
. probably cause Ponnambalam to act to the injury or annoyanceof the defendants.
and (2) have been proved by the evidence of Ponnambalam andSinnavan Thillian. (3) has been proved by the three defendants in C. R.No. 13,048.(4) is necessarily inferred from the evidence of the prose-
cution witnesses coupled with that tendered by the accused. (5) is alsoa necessary inference from the evidence of the prosecution witnesses. Itappears that in these circumstances necessity for the formal productionof documents connected with C. R. Jaffna, No. 13,048, does not arise.
It appears to me that the appellant has also committed an offence underthe. other part of section 180 inasmuch as he knew it was likely that hewould, by giving false information, cause Ponnambalam to do something,namely, serve the summons, which Ponnambalam ought not to do if thetrue state of facts respecting which such information was given wereknown to him. If the appellant was not properly convicted under thecharge as framed I should have been prepared to find him guilty under the■ other,part of the section.
For the reasons I have given the appeal is dismissed.
Appeal dismissed.
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