Present: Schneider and Dalton JJ. and Jayewardene A.J.

THE KING v. SENEVIRATNE.

No. (2), 3rd Western Circuit, PC. Colombo, 254.

    Evidence-Charge of cheating and criminal breach of trust-Proof of similar acts-System-Intent of accused-Series of occurrences- Jurisdiction of Court-Evidence Ordinance, ss. 14 and 15- Courts Ordinance, s. 90.

The accused was charged on four counts in the indictment with cheating and criminal breach of trust in respect of a money transaction in which he acted as Notary Public for two of his clients, E and Mrs. P.
On December 21,1920, the accused raised a sum of Rs. 5,000 for E on the primary mortgage of a land, the lender being one Welsh. Within a few weeks accused informed E that Welsh had recalled the loan, and that Mrs. P. was willing to lend a sum of Rs. 6,250 on a primary mortgage of the same land. Accordingly, on January 21, 1921, a bond was executed by E for the sum, of which Rs. 750 was paid to E, and Rs. 5,000 was retained by the accused to pay off Welsh and to obtain a cancellation of his bond, which the accused failed to do. The accused was then charged as stated with cheating and criminal breach of trust.

The accused's explanation was that he had paid Rs. .750 to Mrs. P at the request of E, and that with the consent of the latter he kept the balance, which was not sufficient to obtain a discharge of Welsh's bond. E denied having given authority to the accused to pay Mrs. P or to use the balance. After leading the direct evidence in the case, the Crown proposed to lead further evidence of another instance in which the accused had in a similar manner cheated another lady client and committed breach of trust of certain moneys raised by her through the accused.

Held, the evidence regarding the other transaction was admissible.

Per SCHNEIDER and DALTON JJ.-The proving of one isolated act apart from the act set out in the charge does not amount to a proof of the fact that there was a series of similar occurrences of which the act charged was one within the meaning of section 15 of the Evidence Ordinance.

Per JAYEWARDENE A.J.-In my opinion two acts amount to a number of acts, and would be sufficient to constitute a series.

The prohibition contained in section 90 of the Courts Ordinance, which forbids a Judge to hear an appeal from or review any judgment, sentence, or order passed by him, applies to a case reserved by a Judge of the Supreme Court under section 355 (1) of the Criminal Procedure Code.

CASE reserved by Jayewardene A.J. under section 888 (1) of the Criminal Procedure Code. The facto axe stated in the reference as follows:-

'In this case the accused was charged on an indictment containing four counts. The first and second were for cheating under section 403; the third and fourth for criminal breach of trust, being an agent, under section 392 of the Ceylon Penal Code. -

" The facts disclosed showed that the accused, who was a Notary Public, raised a sum of Rs. 5,000 for one Edirisinghe, the chief witness for the prosecution, from G. C. Welsh on the mortgage (primary) of a land at Mirihana. This was on December 21, 1920. Within a few weeks Edirisinghe says the accused informed him that Mr. Welsh had recalled his loan, and that there was another party (Mrs. Pollocks) who was willing to lend him Rs. 6,250 on a primary mortgage of the same land. Then it was arranged that the accused should raise this loan from Mrs. Pollocks on a primary mortgage and discharge Mr. Welsh's bond. Accordingly, on January 21, 1921, bond No. 5,572 was executed by Edirisinghe as a primary mortgage, Although at the time Mr. Welsh's bond was still outstanding. The intention, no doubt, was to pay Mr. Welsh as soon as the second bond was registered and showed A clear title. The Rs. 6,250 raised on this bond were in the hands of the notary (to whom it had been handed over by Mrs. Pollocks). Out of this Rs. 6,250 Edirisinghe obtain