REX v. PERIYATAMBY.

REX v. PERIYATAMBY.

Forgery-Sale of cart by complainant to accused-Payment of price by accused-Non-delivery of cart to accused-Removal of cart by accused by forgery of authority to deliver it to him-Penal Code, ss. 452, 463-False document.

Where the accused bought a cart of the complainant and had paid its price, but did not obtain delivery of it because it was left by the complainant in the custody of a third party, and when the accused forged the signature of the complainant to a letter purporting to be an authority to deliver the cart to the accused,-

Held, that the letter was not a false document within the meaning of sections 452 and 458 of the Penal Code.

MIDDLETON, J., who presided at the Batticaloa sessions of the Supreme Court in April, 1902, submitted a question of law for the consideration of two or more Judges of the Honourable the Supreme Court, under the terms of section 355 of the Criminal Procedure Code.

The case stated by His Lordship was as follows; -

"1 The accused was tried before me and an English-speaking jury on an indictment charging (1) that on or about the 12th August, 1901, at Vetaltuchenai in Mandoor in the division of Kalmunai. Batticaloa District, he did forge a certain document, to wit, a letter purporting to be an authority to deliver movable property -to wit, a cart-to him, purporting to be signed by one Chittiyar Kandappen, thereby committing an offence punishable under section 456 of the Criminal Procedure Code; and (2) that at the time and place aforesaid he did fraudulently and dishonestly use as genuine the aforesaid forged document, well knowing or having reason to believe at the time he so used it that the said document was forged, thereby committing an offence punishable. under sections 456 and 459 of the Criminal Procedure Code.

" 2. The facts were that the accused bought a bullock cart from the prosecutor for Rs. 25, and, according to the letter's account, only paid Rs. 16.25.

3. The prosecutor, not being paid in full, took the cart away from the accused and handed it over to a man named Kadramerpodi Ithanataiyapodi, who is a witness.

" 4. The same day accused came to this man's wife and produced a paper, purporting to be signed by the prosecutor, ordering the delivery of the cart to him (the accused).

"5. The woman delivered the cart and afterwards informed the prosecutor, who deposed that the signature to the paper was not his.

6. Two other witnesses identified the paper as that used by the accused, and he himself admitted writing it in his statement to the Magistrate, which was put in evidence,

7. The accused gave evidence, and, as also in his. statement, alleged that he had paid for the bullock cart entirely, partly in cash and goods, as admitted, and partly in work for the prosecutor.

"8. I drew the attention of the Crown Counsel to the question whether, assuming that the cart had been entirely paid for, the offence of forgery had been committed under section 452; he submitted that the wording was wide enough to cover the case in question.

"9. I directed the jury that even if they thought that the prosecutor had been paid in full when he deprived the accused of the cart, yet that the accused had made a false document with an intent covered by section 452, which would constitute forgery, and so bring him within the terms of the charges laid in the indictment.

"10. The jury found the prisoner guilty on both counts unanimously, but the foreman, on behalf of the jury, recommended him for a lenient sentence, on the ground that the majority of six to one were of opinion that the prosecutor had been paid in full for the cart by money and work done by the accused for him.

" 11. Personally, I did not think that this was proved to be so.

" 12. I sentenced the man to three years' rigorous imprisonment on each count concurrently, informing him that I should reserve, for the opinion of the Supreme Court, the question whether I wa

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