018-SLLR-SLLR-1998-V-2-PANTIS-v.-THE-ATTONEY-GENERAL.pdf
148
Sri Lanka Law Reports
(1998) 2 Sri LR.
PANTIS
v.
THE ATTORNEY-GENERAL
COURT OF APPEALWIJEYARATNE, J. ANDWEERASEKERA, J.
C.A. NO. 51/87
C. KANDY NO. 140/85
AUGUST 23 & SEPTEMBER 2 AND 9. 1993
Criminal Law – Breach of trust – Burden of proof – Explanation by accused- Absence of prejudice.
Where an accused was indicted in the High Court on 2 counts, that being theManager of a Co-operative Society he did commit criminal breach of trust (1)of cash Rs. 73,132/78 and (2) of paddy valued at Rs. 61,401/12 and the Judgehad stated in his judgment that it is difficult for the prosecution to prove the mannerin which the accused dishonestly converted this property to his own use and itis the duty of the accused to give an explanation to satisfy Court.
Held:
The Judge should have avoided using such language as the burden ofproof is always on the prosecution to prove its case beyond reasonabledoubt and no such duty is cast on the accused and it is sufficient forthe accused to give an explanation which satisfies Court or at least issufficient to create a reasonable doubt as to his guilt.
As the trial Judge was a trained Judge who would have been aware thatthe burden of proof was on the prosecution to prove' its case beyondreasonable doubt if a reasonable doubt was created in his mind as tothe guilt of the accused he would have given the benefit of that doubtto the accused and acquitted him.
Further misstatement has not prejudiced the substantial rights of partiesor occasioned a failure of justice and there was ample evidence to justifythe convictions.
Cases referred to:
Gunatunga v. The King 53 N.L.R 522
Koch v. Nicholas Pulle 3 N.LR 198
The King v Ragel 5 N.LR 314
Rex v. Seneviratne 15 C.L. Rec 57
The King v. Pulle 12 N.L.R 63
149
CAPantis v. The Attorney-General (Wijeyarhtne, J.)
The King v. Foenander 48 N.L.R 327
Sumanadasa v. The State 78 N.LR 31
Kanapathipillai v. Fernando 73 N.L.R 124;
APPEAL from the judgment of the High Court of Kandy.
R. I. Obeysekera, P.C. with A. W. Yusuf and Sanjeewa Jayawardena for accused-appellant.
Rienzie Arsecularatne, S.S.C for the Attorney-General.
Cur. adv. vult
November 05, 1993WIJEYARATNE, J.
In this case the accused-appellant was found guilty of two amendedcounts in an indictment which, after the amendments, read as follows:-
That between 1.1.77 and 4.8.77, while being the Manager ofthe consumer section of the Morayaya branch of the MinipeM.P.C.S., did commit criminal breach of trust in respect of goodsto the value of Rs. 73,132/78, an offence punishable undersection 391 of the Penal Code.
That between 2.4.77 and 3.8.77, while being the Manager ofthe granary section of the Morayaya Branch of the said MinipeM.P.C.S., did commit criminal breach of trust of 84,059 lbs. ofpaddy valued at Rs. 61,441/12, an offence punishable undersection 391 of the Penal Code.
At the trial R. M. Ran Banda (Inspector of Co-operative Societies),
Margueret Abeygunasekera (an employee of the Minipe M.P.C.S.),R. B. Bisso Kumari (a clerk of the Minipe M.P.C.S.), Y. M. NandaYaparatna (a clerk at Minipe M.P.C.S. during this period), W. M. HemaKumarihamy (an employee of Bibile M.P.C.S.), D. Lakshmi de Silva(an employee of the Rural Banking Section of Minipe M.P.C.S.), H.M.Anulawathie (an employee of Minipe M.P.C.S.), and Police Inspector
M.S.B, Ekanayake (who made inquiries this case and took chargeof productions) gave evidence for the prosecution.
The prosecution closed its case leading in evidence productionsP1 to P94.
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On behalf of the defence the accused-appellant himself gaveevidence and called as witnesses R. B. Ekanayake (General Managerof Morayaya Co-operative Union from 1972 during the relevant period,and K. Heen Banda Ekanayake (Accountant of Morayaya Co-operativeUnion from 1973 to 1980).
The learned High Court Judge found the accused-appellant guiltyon the two amended counts and sentenced him to three years' rigorousimprisonment and a fine of Rs. 100, in default one month's rigorousimprisonment on the first count.
He also sentenced the accused-appellant to three years' rigorousimprisonment on the second count and a fine of Rs. 100, in defaultone month's rigorous imprisonment.
The jail sentences were to run concurrently.
From this order the accused-appellant has filed this appeal.
At the hearing Mr. R. I. Obeysekera, P.C., for the accused-appellantsubmitted that the learned trial Judge has placed too heavy a burdenon the accused by stating that the accused should give an explanationregarding the shortages which would satisfy the court. He submittedthat this amounted to placing too heavy a burden on the accused.It is sufficient in law for the accused to give an explanation whichsatisfies the trial judge or at least an explanation which is sufficientto create a reasonable doubt as to his guilt. Therefore he submittedthat, since the learned trial Judge has misdirected himself by placinga heavier burden than warranted by law, on that ground alone theconviction should be set aside.
He also submitted that the trial Judge has confused the chargesin this case with a charge under section 392A of the Penal Codewhere a duty is cast on the part of a public officer to produce themoney shown in the account kept by him or duly to account thereforeas laid down in the decision in Gunatunga v. The King<1). He submittedthat in this case the charge was not under section 392 A but undersection 391 of the Penal Code and therefore no such burden lieson the accused but the burden is always on the prosecution.
At this stage it is appropriate to refer to the passage in the judgmentof the learned High Court Judge which is in Sinhala and which readsas follows:
CAPantis v. The Attorney-General (Wijeyaratne, J.)151
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Sdfitadf Ojd^radj tasg®.’
I agree that the learned trial Judge should have avoided using suchlanguage which means that there is a burden on the accused to givean explanation which satisfies the court.
The burden of proof is always on the prosecution to prove allingredients of the charge beyond reasonable doubt and there is noburden in our law for the accused to give any explanation (unlessin certain cases where specific provision is made by law). In my viewit is sufficient if the accused gives an explanation which satisfies thecourt or at least is sufficient to create a reasonable doubt as tohis guilt.
It should be kept in mind that the trial Judge was a trained judgewho would have been aware of the fact that the burden of proof isalways on the prosecution to prove a case beyond reasonable doubt.Therefore if a reasonable doubt was created in his mind, no doubthe would have given the benefit of that doubt to the accused andacquitted him on the charges.
In any event I am of the view that the matter is governed by Article138 (1) of the Constitution (as amended by the Thirteenth Amendment)which reads as follows:
"138 (1) The Court of Appeal shall have and exercise subjectto the provisions of the Constitution or of any law, an appellatejurisdiction for the correction of all errors in fact or in law whichshall be (committed by the High Court, in the exercise of itsappellate or original jurisdiction or by any Court of First Instance),tribunal or other institution and sole and exclusive cognizance, byway of appeal, revision and restitutio in integrum, of all causes,suits, actions, prosecutions, matters and things (of which such HighCourt, Court of First Instance) tribunal or other institution may havetaken cognizance:
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Provided that no judgment, decree or order of any court shall bereversed or varied on account of any error, defect or irregularity, whichhas not prejudiced the substantial rights of the parties or occasioneda failure of justice."
This is a fit case to apply the proviso above as this misstatementof the law has not occasioned in a failure of justice or prejudicedthe substantial rights of the accused as there is ample evidence tojustify the conviction.
Further Mr. Obeysekera criticised the statement made in the aforesaidportion of the judgment wherein the learned trial Judge has statedthat the accused by his own evidence while in the witness box provedthat he had dishonestly misappropriated goods from the consumersection and the paddy section of the Morayaya branch. The learnedJudge has said so because the accused himself admitted andacknowledged some of these shortages and the learned Judge hasrejected his attempts to explain them away. The accused has statedthat the Police officers and persons from the Co-operative Societywho brought him from his house got him forcibly to sign certaindocuments. The accused has gone on to say that he was not in hisproper senses and that he went to the Police Station and the Policedid not record his complaint. However the accused-appellant has neverstated that he made any complaint to any higher Police officer in thisconnection. The accused admitted his signatures on several formswhere he had taken the responsibility for shortages. On one occasionat the stock taking on 3.8.77 the accused-appellant was absent andhe had delegated witness Lakshmi de Silva to be present at thatstock taking.
The accused-appellant attempted to say that there was a disturbedsituation arising out of the Elections of July, 1977, but there is noevidence that this led to any large scale pilfering of goods or cashby unruly elements.
Mr. Obeysekera also submitted that a mere shortage of goods isnot sufficient to prove the charges against the accused-appellant andinvited the attention of court to several decided cases including thatof Koch v. Nicholas Pulle(2>, The King v. RageP>, Rex v. Seneviratne1*1,The King v. Pulle®, The King v. Foenanderi61 and Sumanadasa v.The State<7>. However in Koch v Nicholas-Pulle (supra) Lawrie J.stated:
CAPantis v. The Attorney-General (Wijeyarathe, J.)153
"That in all cases under this section the explanation by theservant is an important part of the evidence before the Jury orthe Court. Does the explanation satisfy the Court that there hasbeen no dishonesty, no criminal breach of trust or does it containadmissions or statements from which either the guilt of the accusedis proved or guilt may reasonably be presumed?"
Another important case is Kanapathipillai v. Fernando® whereThamotheram, J. considered several decisions and stated the principlethat in a prosecution for criminal breach of trust an inference ofdishonest misappropriation or conversion can reasonably be drawnif the true facts are not capable of any innocent explanation and theaccused has not at any stage attempted an explanation or hisexplanation is rejected as untrue and false. In my view this judgmentof Thamotheram, J. sets out succinctly the legal position.
It is not enough for the prosecution merely to prove that the clerkor servant who is charged has not accounted for all the money andor goods that he has received and for which he was bound to accountfor; there may be other explanations for the deficiency besidesdishonesty and the prosecution must prove circumstances from which ■dishonesty can be inferred. Such a circumstance in the present caseis an explanation given by the accused which would apparently havebeen easily capable of proof but which is not proved and which thecourt has disbelieved or rejected.
In this case the explanation of the accused has been rejected andrightly rejected.
On a consideration of all the evidence in the case the prosecutionhas proved both the charges against the accused beyond all reason-able doubt. Therefore I affirm the convictions on the two counts.
Mr. Obeysekera finally made a submission that since this offenceoccurred in 1977 and the accused was found guilty in 1987 and thisappeal has come up another six years later this is an appropriatecase where this court should delete the jail sentence. I
I have carefully considered the question of sentence. In this casethe sums involved are Rs. 73,132/78 and Rs. 61,441/12 and thesehad a very much higher value in the period when these offences were
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committed. During this period these sums of money had a very bigvalue. Since then owing to an inflation the value of money has erodedvery much. I have to keep in mind that these sums of money hada very high value during the period when these offences were committed.
When the accused gave his evidence on 14.7.87 he gave his ageas 39 years and now he must be about 45 years old. However theseare very serious offences particularly in institutions like Co-operativeSocieties which are meant for the benefit of the public.
In my view, if at all the sentences have erred on the side ofleniency; this is not a case where this court should interfere with thesentences that have been imposed.
For these reasons the conviction and sentences are affirmed andthe appeal is dismissed'.
WEERASEKERA, J. – I agree.
Appeal dismissed.