077-NLR-NLR-V-55-S.-THAMBIPILLAI-Appellant-and-MANMUNAI-SOUTH-AND-ERUVIL-CO-OPERATIVE-AGRI.pdf
284
(Phambipillai v. Jitfcinm/unasi South and Eruvil Go-operative
Agricultural Production and Sales Society, Ltd.
1953Present: Pulle J.
S. THAMBIPILLAI, Appellant, and MANMUNAI SOUTH ANDERUVIL CO-OPERATIVE AGRICULTURAL PRODUCTIONAND SALES SOCIETY, LTD., Respondent.
S. C. 1,399—M. C. Batticaloa, 13,398
Co-operative Societies Ordinance (Cap. 107) as amended by Ob-operative Societies(Amendment) Act, No. 21 of 1949—Section 50A—Money due to Co-operativeSociety—Procedure for recovering it—Sentence of imprisonment cannot beimposed on defaulting debtor.
When the Registrar of Co-operative Societies orders a person to repay moneydue to a co-operative society, section 50a (2) of the Co-operative SocietiesOrdinance as amended by the Co-operative Societies (Amendment) Act, whichprovides machinery for the recovery of the money under section 312 (2) of theCriminal Procedure Code, does not empower a Magistrate to sentence thedebtor to a term of imprisonment if he makes default in payment.
PPEAT, from a judgment of the Magistrate’s Court, Batticaloa.Appellant in person.
Ananda Pereira, Crown Counsel, as amicus c/wriae.
FCT.LE .T.—ThambipUlai o. Manmunai South and Eruvil Co-operative
Agricultural Production and Sales Society, Ltd.
285
December 2, 1953. Puix.e J.—
The appellant was the storekeeper of a Co-operative AgriculturalProduction an l Sales Society. By a writing dated the 6th June, 1951,the Registrar of Co-operative Societies made an order under section 50aof the Co-ope-ative Societies Ordinance, No. 16 of 1936 (Cap. 107) asamended by the Co-operative Societies (Amendment) Act, No. 21 of1949, requiring the appellant to pay a sum of Rs. 12,798 being the valueof 1,422 bushels of paddy found to be short while in the custody of theappellant. The order further stated that if the sum was not paid by the8th July, 1951, “ it may be recovered as a fine of the Magistrate’s Courtas provided in section 50a of the Ordinance referred to above ”.
On the 14th August, 1951, the liquidator of the Society filed the orderand moved that the amount be recovered as a fine in terms of section50a (2) of the Ordinance. On the same day, however, a summons wasissued requiring the appellant to answer to the complaint that by hisfailure to pay the money he had committed an offence punishable undersection 50a (2).
The only point taken on behalf of the appellant before the learnedMagistrate was that the order of the Registrar was ultra vires. Thissubmission was not accepted and the appellant was sentenced to sixmonths’ imprisonment.
The appellant argued his case in person and I am indebted toMr. Ananda Pereira, Crown Counsel, for assisting me as amicus curiae.In my opinion section.50a (2) merely provides the machinery for therecovery of the money under section 312 (2) of the Criminal ProcedureCode and does not empower a Magistrate to sentence a person againstwhom an order is made by the Registrar and who has made default inpayment to a term of imprisonment. If reference is made to analogousprovisions in other statutes one finds that the legislature expressly providesfor imposing a term of imprisonment upon a failure to pay. See section8 of the Maintenance Ordinance and section 80 (1) of the Income TaxOrdinance.
Section 50a (2) corresponds in substance to section 50 of the StampsOrdinance. Dealing with the latter section Ennis J. said in the DivisionalBench case of Ghinawardene v. Gunaselcera1: “The contention of theappellant that the appellant was liable to imprisonment under theprocedure prescribed in section 50 and is, therefore, entitled to appealis not, in my opinion, tenable, as imprisonment in default of payment isquite distinct from the procedure for the recovery of a fine. It is asubstitution of one form of punishment for another which section 50does not contemplate.”'
For the reasons stated above I have already made order quashing thesentence of imprisonment.
Sentence of imprisonment quashed.
1,1922) 1 T.C.L.R. 90.