1931 Present : Drieberg J.

KING v. CORNELIUS.

103-D. C. (Crim), Colombo, 9,363.

Notaries Ordinance-Having permitted or suffered party to execute document with used stamps-Proof of gualty knowledge -Ordinance No. 1 of 1907, 1. 29 (6) -Stamps Ordinance, No. 22 of 1909, s. 58 (1) (b).

Where a notary public was charged under section 29 (6) of the Notaries Ordinance with having permitted or suffered parties to two deeds to execute them when they were insufficiently stamped, viz., with used stamps,-

Held, the prosecution must prove that the appearance of the stamps at the time of their use was such that the notary must have known that they had been previously used or that his lack of knowledge was due to gross negligence or to wilful abstinence of knowledge.

Where, on the same facts, the notary was charged under section 58 (1) of the Stamps Ordinance with having executed or signed, otherwise than as a witness, a deed chargeable with duty, without the Same being duly stamped,-

Held, that he was not liable under the section because, as notary, he was only a witness to the execution of the deed.

APPEAL from a conviction by the District Judge of Colombo. The accused, who is a notary public, was charged with offences, in respect of two deeds attested by him, under section 29 (6) of the Notaries Ordinance, No. 1 of 1907, in that he permitted or suffered the parties to execute them, when they were insufficiently stamped, viz., with treated stamps. He was also charged under section 255 of the Penal Code with fraudulently using for the payment of stamp duty stamps which, he knew, had been used before.

He was further charged under section 58 (1) of the Stamps Ordinance, No. 22 of 1909. He was convicted on all the counts.

Hayley, K.C. (with him Deraniyagala), for accused, appellant. The evidence fails to establish the charges and the accused is entitled to an acquittal. The fourth count of the indictment cannot be maintained. It charges the accused with " executing" a deed without the same being duly stamped. A notary is not the executant of a deed. He is the chief witness to the due execution of the deed. The investigation of the case has not been conducted with any appreciation of the true points involved. There is no evidence as to the probable condition and appearance of these alleged "cleaned" stamps at the time of their being bought and affixed to the deeds in question. The accused cannot be made responsible for the condition of the stamps at the time of their examination by the experts. The opinions of the experts are based on examinations made with a lens and by ultraviolet light. Is it suggested that these should form part of the equipment of every notary public practising his profession ? There is no evidence of the proper care and custody of these deeds in the office of the Registrar-General. Nor has evidence been led as to how the business of selling stamps in the District Court of Colombo or in the Post Offices is conducted. It is not enough to prove

negligence. The words " permit" and " suffer" connote an exercise of the conscious will-what is known in law as a guilty mind or guilty knowledge. Counsel cited Cundy v. Le Cocq1; Somerset v. Wade2.

Crossette Thambiah, C.C., for the Crown.-It must be conceded that count 4 of the indictment cannot stand. With reference to the remaining counts, the view point of approach as regards counts 1 and 2 should be different to that as regards count 3. Count 3 presupposes a fraudulent or dishonest intent. Counts 1 and 2 do not. Note the absence of such words as " wilfully " or " knowingly" or " fraudulently " or " dishonestly ". The prohibition is absolute. It is the old distinction between mala quia prohibita and mala per se. If a notary has " suffered" a deed attested by him to be insufficiently stamped he is in default, quite apart from any question of negligence or knowledge or intent. " Suffer " is equivalent t