063-NLR-NLR-V-54-W-.A.-ROMANIS-SINGHO-Appellant-and-ABEYSINGHE-P.C.271-Respondent.pdf
Romanis Singho v. Abeysinghe
261
1951Present : Pulle J.
W. A. ROMANIS SINGHO, Appellant, and ABEYSINGHE(P. S. 271), Respondent
S. C. 988—M. C. Ratnapura, 19,715
Co-operative Societies Ordinance (Cap. 107)—Section 2 (2)—Orders made by Minister—Judicial notice—Evidence Ordinance, s. 57 (1).
Section 2 of the Co-operative Societies Ordinance as amended by a laterProclamation provides :—
' “ 2.(1) There may be appointed a Registrar of Co-operative Societies for
the Island or any portion thereof and such number of Deputy orAssistant Registrars as may be necessary.
(2) The Minister may, by general or special order published in theGazette, confer on any Deputy or Assistant Registrar all or any of thepowers of a Registrar under this Ordinance. ”
Held, that an order published by the Minister under section 2 (2) is not oneof which judicial notice must be taken.
A PPEAL from a judgment of the Magistrate’s Court, Ratnapura.M. D. H. Jayaivardene, for the accused appellant.
A. C. Alles, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
262
PUJLiLE J.—Romania Singho v. Abeysingha
April 2, 1951. Pulle J.—' '
The case against the accused-appellant is that on the 10'th February,1950, he disobeyed wilfully a written order to produce the books, cash,securities and papers belonging to Pohorabarwa Co-operative StoresSociety of which he was the Treasurer. The order was given by a writingdated 31st January, 1950, by Mr. G. H. K. Gunawardena, an inspectorof Co-operative Societies. The learned Magistrate has in a carefullyconsidered judgment found that the appellant who was duly servedwith the written order wilfully disobeyed it. This is a finding thatcannot possibly be challenged.
It is submitted on behalf of the appellant that the conviction is badon the ground that the charge was defective. It has not been possibleto examine the contents of the charge for the reason that the chargesheet is missing from the record. As the learned Magistrate has pointedout in a report, it is possible that the charge sheet was mislaid when therecord was detached loose and rebound before transmission to theRegistry. It is clear from the record that the accused was chargedfrom the charge sheet and it was, therefore, not open to the appellantto urge that the trial was held without the appellant being charged asrequired by the Criminal Procedure Code. I permitted the learnedCounsel for the appellant to make his submission on the basis that theallegations contained in the report filed under section 148 (1) (6) hadbeen incorporated in the charge sheet. The only point of any sub-stance urged was that the prosecution had not set out in the reportsection 17 of the Co-operative Societies Ordinance (Chapter 107), asamended by the Co-operative Societies (Amendment) Act, No. 21 of 1949.
In my opinion the failure to set out section 17 is not fatal to the charge.The appellant was informed in the written order served on him thatMr. Gunawardena had been authorized to make the demand undersection 17 (2a) (6) of the Ordinance. A copy of this order was an exhibitin the case and in his evidence also Mr. Gunawardena mentioned section17 as the one under which he was authorized to act. I, therefore, holdthat the submission that the charge was defective fails.
On an examination of the documents on which Mr. Gunawardenarelied to establish that he had legal authority to issue an order to theappellant I find that they are defective. The order P 1 dated the 31stJanuary, 1950, recites that Mr- Gunawardena was authorized by theRegistrar of Co-operative Societies. This recital is incorrect becausein document P 3 dated the 10th October, 1949, Mr. S. B. Yatawarahas in the capacity of Deputy Registrar, Co-operative Societies,had authorized Mr. Gunawardena to audit accounts and to obtainbooks, papers, &c., from registered Co-operative Societies. If in pointof fact it was proved that Mr. Yatawara was empowered to issue anauthority to Mr. Gunawardena the incorrect recital would not havevitiated the order P 1 issued by Mr. Gunawardena. The question thenis whether Mr. Yatawara’s authority dated 10th October, 1949, is valid.
Section 17 of the Co-operative Societies Ordinance empowers onlythe Registrar to cause to be audited by some person authorized by himthe accounts of a registered Society. In the face of this se'ction alone
In re Sv N. Rajah
263
the authority issued by Mr. Yatawara cannot be justified. Section 2of the Ordinance as amended by the Proclamation issued by the Governor-General dated February 4, 1948, reads as follows :—
*‘-2.(-1) There may be appointed a Registrar of Co-operative
Societies for the Island or any portion thereof and such number ofDeputy or Assistant Registrars as may be necessary.
(2) The Minister may, by general or special order published in theGazette, confer on any Deputy or Assistant Registrar all or any ofthe powers of a Registrar under this Ordinance.”
It does not appear either in the report made to- the Magistrate undersection 148 (1) (b) of the Criminal Procedure Code or in the evidencethat the Minister by a general or special order published in the Gazetteconferred on Mr. Yatawara all or any of the powers of a Registrar underthe Ordinance. My attention, however, has been drawn to such anorder published in the GazeMe of the 7th January, 1949. The questionthen arises whether the Minister’s order is one of which I must takejudicial notice. The answer must be in the negative. In my opinionthe order does not fall within the ambit of section 57 (1) of the EvidenceOrdinance as a law or a rule having the force of law. Under section57 (1) I could take judicial notice of Mr. Yatawara’s accession to officeas Deputy Registrar of Co-operative Societies and of his functions inthat eapacity but not the extended functions conferred by the orderin question.
I am, therefore, compelled most reluctantly tp reach the decisionthat the prosecution has failed to adduce sufficient proof that the orderissuud by Mr. Gunawardena was one which the appellant disobeyedat his peril.
The conviction and sentence are set aside and the appellant is acquitted.
Appeal alloived.