011-NLR-NLR-V-37-SHAND-v.-ATHUKORALE.pdf
DRIEBERG J.—Shand v. Athukorale.
55
[In Revision.]
1934Present: Drieberg J.
SHAND v. ATHUKORALE.
C. (Crim.) Colombo, 10,871.
Criminal Procedure—Order for disposal—Conviction for criminal breach oftrust—Sale of Goods Ordinance, s. 23 (2)—Criminal Procedure Code,s. 413.
A District Judge has no power to order goods in respect of whichcriminal breach of trust has been committed to be restored to the owner.
PPEAL from an order of the District Judge of Colombo.
H. V. Perera, for petitioner.
Bartholomeusz. for respondent.
Pulie, C.C., for the Attorney-General.
October 30, 1934. Drieberg J.—
At the conclusion of the trial the learned District Judge made anorder under section 413 of the Criminal Procedure Code that 3,351 lb.of rubber then in the possession of the petitioner Edward Shand, theManager of Hull, Blyth & Company Limited, be delivered to therespondent. The petitioner asks that this order be dealt with in revisionand set aside.
98
DRIEBERG J.—Shand. v. Athukorale.
, The facts, so far as they are necessary for the purpose of this application,are as follows :—'The respondent on November 30, 1933, gave 3,360 lb.of rubber to the accused Richard, a carter, to be delivered to the GoodyearRubber Company. Hull, Blyth & Company bought on November 30,1933, 3,351 lb. of rubber from Gomes & Company, licensed rubberdealers. Eight of these sheets were examined and two were identifiedby the respondent as his. These were marked P 7 in the Police Courtand were among the productions entered on the indictment. Thelearned District Judge convicted the accused of criminal breach of trustand made the order I have set out.
Mr. K. V. Perera contended that the order is wrong for two reasons.First, that the rubber, except the two sheets marked P 7, was notproduced before the District Court and therefore that Court could notmake an order under section 413 for its disposal. This is not free fromdifficulty, for it might be said that the two sheets in Court were producedas samples of the bulk and much may depend on the directions givenby the Police Court regarding the rubber. It is not necessary, however,to consider this for even if the 3,351 lb. of rubber be regarded asproduce before the District Court it was not open to the Court to makethe order. This is the second ground of objection. The learned DistrictJudge stated as his reason for the order that no title could pass to stolengoods. He had, no doubt, in mind section 23 (1) of the Sale of GoodsOrdinance which provides that where goods have been stolen and theoffender is prosecuted to conviction, property in the goods vests in theperson who was the owner notwithstanding any intermediate dealingwith them; but sub-section (2) of the same section says that where goodshave been obtained by fraud or other wrongful means not amounting totheft, the property shall not revest in the person who was the owner byreason only of the conviction of the offender. Here the accused wasconvicted not of theft but of criminal breach of trust; the case, therefore,falls within sub-section (2) of section 23 and the order is for that reasonwrong.
It was sought to justify the order on the ground that section 393of the Penal Code defines stolen property as including property in respectof which criminal breach of trust has been committed. I need notdeal with this point which is covered by authority, see Police Inspector v.Albert Silva' where Sampayo J. pointed out that the definition therewas for the special purposes of the connected sections dealing with thereceipt and disposal of goods obtained by acts of crime of several kinds,all such goods being called stolen property. In the same case Sampayo J.pointed out that the definition in section 393 of stolen property did notaffect the distinction drawn in section 23 of the Sale of Goods Ordinancebetween property lost by theft and that lost by fraud and other unlawfulmeans not amounting to theft.
– I set aside the order requiring the petitioner to deliver the rubberto the respondent.
Set aside.
1 11916) 3 C. W. n. 313.