063-NLR-NLR-V-26-REX-v.-SEENYTAMBY.pdf
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Present: Jayewardene A.J.
BEX v. SEENYTAMBY.D. C. (Crim.)t Batticaloa*
Notary—Fixing of Hamm—Duplicate sent to Registrar—Wilfully falsestatement—Attestation clause—Ordinance No. 1 ofm 1907, s. 88 (tl).
Where a notary, who attested a deed stated in the attestationclause, as required by law, that stamps of the value of Rs. 42 wereaffixed to the duplicate deed, and where on receipt of the duplicateby the Registrar of Lands it was ascertained that only one .stampof the value of Rs. 2 was affixed to it.
Held, that the notary was guilty of having knowingly andwilfully mode a false statement in the attestation to the deedwithin the. meaning of section 33 (d) of the Rotaries Ordinance.
A
PPEAL by a notary from a conviction under section 38 of theNotaries Ordinance, No. 1 off 1907. He was charged on
three counts: first, with having permitted or suffered one A. C. Tosephto execute before him a deed No. 1,977 dated February 28, 1923,which was insufficiently stamped in breach of rule 6 of sectioQ 29 ofthe Ordinance; secondly, with having, in respect of the said deed,neglected to state the correct number and value of the stampsaffixed to the duplicate deed; thirdly, with having in violation ofsection 38 (d) of the Ordinance, knowingly and wilfully made a falsestatement in the attestation to the same deed No. 1,977 executedbefore him, namely—that five stamps of the value of Bs. 42 wereaffixed to the duplicate deed, while in fact only one stamp of thevalue of Bs. 2 was affixed. To counts one and two the accusedpleaded guilty, but to the third count he pleaded not guilty. TheDistrict Judge convicted him on the third count also, and sentencedhim to six months' rigorous imprisonment.
The evidence disclosed that the accused attested the deed inquestion on February 23, 1923, and stated in the attestation clausethat five stamps of the value of Bs. 42 were affixed to the duplicatedeed. On receipt of the duplicate by the Begistrar of Lands, it wasdiscovered that only one stamp of the value of Bs. 2 had beenaffixed. It was urged on behalf of the accused, that he had followeda practice in vogue among notaries of not observing the rule whichrequires notaries to stamp deeds before 'they are executed by theparties. It was alleged that notaries were in the habit of fixingstamps on the duplicates just before they are sent to the Begistrarof Lands, for which purpose a period of time extending to the 15thday of the following month was allQwed. By an oversight the clerk
1924*
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* 1924. had failed to affix the necessary stamps before the duplicate of thedeed was forwarded. It was contended on behalf of the accusedSewyt&mby that there was no proof that he made the false statement “ know-ingly and wilfully.’'
E. W. Jayewardcnc, Jv.C. (with him H. 1’. Perera), lor appellant..
Vernon Grenier, • 0.(7., for respondent.
December 17, 1924. Jayewahdenk A.J.—
This is an appeal by a notary who has been convicted under .section 88 of. the Notaries Ordinance, 1907, for knowingly andwilfully making a false statement in his attestation to a deed, andsentenced to six months' rigorous imprisonment. He was chargedon three counts; first, with having permitted or suffered one A. C.Joseph to execute before him a deed No. 1,977 dated February 28,1928, which was insufficiently stamped in breach of rule 6 ofsection 29 of the Notaries Ordinance; secondly, with having, inrespect of the said deed, neglected to state the correct number andvalue of the stamps affixed to the duplicate deed, offences punish-able under section 29 of the Notaries Ordinance, No. 1 of 1907;thirdly, with having in violation of section 88 (d) of the Notaries-Ordinance knowingly and wilfully made a false statement in theattestation to the same deed No. 1,977 executed before him, to wit:that five stamps of the value of Rs. 42 were affixed to the duplicateof the said deed, while, in fact, only one stamp of the value ofRs.,2 was affixed thereto, an offence punishable under section 83 ofthe Ordinance with imprisonment. To counts one and two theaccused pleaded guilty, hut to the third count he pleaded not guilty.After trial the learned District Judge found the accused guilty onthe third count also, and sentenced him to pay a fine of Rs. 100 orthree months' simple imprisonment on the first count. He passedno sentence on the second count, as that count and the thirdcovered the same facts. _On the third count he imposed thesentence I have stated above.
On appeal it is contended for the accused that his conviction on thethird count is wrong, as there is no proof that he made the false state-ment “ knowingly and wilfully." The result of the evidence appearsto be this: Deed No. 1,977 was executed before the accused by one
C. Joseph on February 23, 1923. The accused attested the deed,and in his attestation clause he has stated as required by law, thatfive stamps of the value of Rs. 42 were affixed to the duplicate of thedeed. This duplicate was forwarded to the Registrar of Lands ofthe* district. On receipt of the duplicate, it was discovered by theRegistrar that only one stamp of the value of Rs. 2 had been affixedto it, and not five stamps of the value of Rs. 42 as stated in theattestation.
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Now under section 29 (6) of the Notaries Ordinance, 1907, anotary “ shall not require, permit, or suffer any person toexecute or acknowledge before him any deed or instrument whichis insufficiently stamped,’’ and under (7) of the same section “ heshall at the time of the execution or acknowledgment of every deedor instrument before him cancel the stamps thereon by writing ormarking in ihk on or across each stamp his name or initials,together with the true date of his so writing or marking, and shallwrite upon each stamp with ink the number of the deed or instru-ment to which such stamp is affixed."
The accused has violated both these rules. It is clear that heallowed the deed to be executed when it was insufficiently stamped,or, I should say, when it was not stamped at all, and at the time ofthe execution of the deed he did not cancel the stamps as requiredby rule (7), and in fact could not have done so.
So that the statement in the attestation in this respect is clearlyfalse. Again section 29 (19) requires a notary to attest withoutdelay every deed. executed before him and to seal such attestation.In such attestation he is required to state inter alia (f) “ the numberand value of the stamps affixed to such deed or instrument and to theduplicate thereof and the name of the person by whom the stampswere supplied.”
Section 33 creates certain offences and by sub-section (e) a notary" who shall knowingly or wilfully make any false statement in theattestation in any deed executed or acknowledged before him shallbe guilty of an offence, and shall be liable on conviction thereofto imprisonment, simple or rigorous, for aA^ period not exceedingfive years without the option of a fine.
Did the accused in making the false statement in question, do soknowingly or wilfully ? The accused did not give evidence, and nosatisfactory explanation has been offered as to how the misstatementcame to be made, except the suggestion that the accused wasmisled by his clerk. It is, however, urged for the accused, and thelearned District Judge says that he has been “ the victim of avicious practice." I have no doubt that the accused has followeda practice which, although it is directly, opposed to the requirementsof the Notaries Ordinance, has been in vogue among notaries allover .the Island. The rule requiring notaries to stamp deeds beforethey are executed by the parties is not observed. Notaries haveto send to the Registrar of Lands the duplicates of the deedsattested by them during the. month.with a list before the 15th ofthe following month, and notaries have taken advantage of thisinterval of time to affix stamps to their duplicates, just beforethey are sent to the Registrar of Lands.
This practice as I said is in the teeth of the provisions of theOrdinance which are clear and unambiguous. This is the practicethe accused followed, but by some oversight he or his clerk failed
1924.
Jatbwab-DEN£ A. J.
Rcxv.
Seenylamby
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1924.
Jaybwar-OENE A.J.
Rem v.'Seenytamhy
to affix the necessary stamps before the duplicate of the deed wasforwarded, and so the falsity of the statement in the attestation wasdiscovered. The admission that the accused had been followingthis practice .involves the admission that he has been systematicallyand deliberately making false statements in his attestations.
In the circumstances there can be no doubt that he made thefalse statement on the attestation in question 44 knowingly andwilfully/* I do not think that there is any. room for the argumentthat his statement was made accidentally or through inadvertence.The accused is therefore guilty of the offence laid in the third countof the indictment. The fact that the accused has been 44 the victimof a vicious practice ” is a circumstance which should be taken intoconsideration in awarding punishment. The practice is one whichhas been followed by many reputable notaries, and the accusedevidently learnt it from his own master. It is not suggested thatthe accused, who is said to be in a good way of business, has actedfraudulently, or dishonestly. He has paid the deficiency. Undersection 33 imprisonment, rigorous or simple, must be imposed. But,I think that a term of six months' rigorous imprisonment in thecircumstances of the case is too severe. I would alter the sentence-to one day's simple imprisonment, or imprisonment till the rising ofthe Court, As no fine can be imposed under section o3, I wouldimpose a fine of Bs. 50 on the second count, or in default six weeks’simple imprisonment. I trust that this case will bring home tonotaries the necessity of strictly observing the rules enacted intheir Ordinance.
. They will now understand, if they had not understood before,that the requirements of rules six and seven and nineteen are meantto be obeyed and not disregarded, and that the 44 vicious practice **which has led to the accused being placed in the dock must nowcease.
Sentence varied.