028-NLR-NLR-V-22-THE-KING-v.-KABEER.pdf
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Present: DeSampayo J.
THE KING v. KABEER.
60—D. C. (Crim.) Kandy, 3,155.
Criminal breath of trust—Accused entrusted with, railway warrant to getticket and deliver to another person—Sale of ticket so obtained to athird party—Criminal misappropriation.N
The accused, a jail guard, was entrusted with a railway warrant(that is to say, an order upon the proper officer of the railway toissue a ticket in exchange for the warrant) and was asked toaccompany a prisoner, who had served his sentence, to the railwaystation, and to give him a railway ticket. The accused obtainedthe ticket in exchange for the warrant, but sold it to another.
Held, that he was not guilty of criminal breach of trust (PenalCode, section 392) in respect of the railway warrant.
“ The true offence of the accused probably is criminal misappro-priation of the railway ticket.”
rpHE facts appear from the judgment.
Brito-Muttunayagam, C.C., for the Grown, appellant.
May 28,1920. De Sampayo J.—
The accused was charged on the indictment with havingcommitted criminal breach * trust in respect of a railway warrantentrusted to him, and the cha.^? v~" la: l -uder section 392 of thePenal Code. The facts of the case are r'.c in dispute. The onlyquestion is whether the charge can be sustained in respect of the1 (1871) Vanders 180.
1920.
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1920. ldw. The aoonsed is a jail guard, and it appears that on the day inDb 6 ^uest*on a prisoner, who had served his 'Sentence and had been .j, Ay° discharged, was to have been sent by train to Colombo, and theaccused was asked to accompany the prisoner to the railway«.sbabion.. He "was at the same time, entrusted with what is oalled
■ ' a railway warrant, that is to say, an order, upon the proper officerof the railway to issue a ticket in exchange for the warrant. Theaccused’s duty then, was to have presented this warrant to theproper officer, to obtain a ticket for the prisoner, and to see thathe went by the train with the ticket. The acoused went to thestation with the warrant and the prisoner. He presented thewarrant to the proper offioer and obtained a ticket. It appears thatinstead of handing it to the prisoner, he sold it to a person who wastravelling by the same train, aDd the question in these circumstancesis whether the accused can be charged under the particular sectionof the Code with criminal breach of .trust in respect of the railwaywarrant. I agree with the, District Judge in thinking that thetrust, so far as the railway warrant was concerned, was that theacoused should deliver it to the proper officer at the railway stationand receive a ticket in exchange. It is true that he failed to performthe further duty of handing the ticket, to the prisoner. But thathad no immediate connection with the trust in respect of therailway warrant, and-1 cannot agree with Crown Counsel when heargued that this was a dishonest use of the railway warrant in breachof an implied contract to receive and hand the'ticket to the prisoner.Here Crown .Counsel utilizes certain words in the definition insection 388 of the Code. But all these sections have reference to atrust in respect of property. The property in this case is the railwaywarrant, and so there was no contract implied or express in respectof the railway warrant as contended for. The true offence of theaccused probably1 is, as Crown Counsel secondly urged, criminalmisappropriation of the railway ticket, in that, instead of deliver-ing it to the prisoner he disposed of it to a stranger for a moneyconsideration. From the judgment .of the District Judge it appearsthat the prosecuting counsel desired to amend the indictment byincluding therein a charge under section 386 of the Penal Code.The District Judge refused to accede to this request, though, Ithink, he mightjvell have done it without prejudice to the accused.Without expressing an opinion as to whether the case could, as amatter -of fact, be brought under section 386 in respect of therailway ticket, I am prepared to send the case back in order thatthere might be a fresh trial on a charge under section 386. Itherefore affirm the present acquittal, and send the case back forfurther proceedings in the manner I have indicated.
Sent back.