1931 Present : Macdonell C.J., Garvin S.P.J., and Dalton J.

IN THE MATTER OF A REFERENCE UNDER
SECTION 355 (2) OF THE CRIMINAL
PROCEDURE CODE.

THE KING v. GODAMUNE.

41-P. C. Kandy, 32,498.

Criminal misappropriation-Trust property-Payment of interest to trustee- Appropriation of payments -Particulars in charge-Ownership of property misappropriated-Direction to jury.

By the terms of a marriage settlement, H, the owner of Belmont estate, settled a sum of Rs. 40,000 upon two trustees, of whom the accused was one, in trust for certain beneficiaries. H sold the estate to B and the trust fund was invested and secured by a mortgage of the estate in favour of the trustees. At the dates material to the prosecution, the accruing interest was payable to H.

No interest having been paid for some years, an action was instituted in the District Court of Kandy by the trustees to recover the principal sum and the accumulated interest, which amounted to Rs. 23,126. Prior to the institution of the action, B had executed a conveyance of the estate in favour of a certain syndicate and they were made parties to the action for the purpose of affecting the property with liability in their hands.

At the date of the institution of the action, there was pending in the District Court of Colombo a case instituted by B against the syndicate alleging that they were holding the estate in trust for him. Before the syndicate filed answer in the mortgage action, they entered into negotiations with the accused as trustee and agreed to consent to judgment on condition of their being allowed a year's time, on the understanding, however, that they made certain payments on account of arrears of interest.

It was further agreed that the accused should not certify of record any payments made on account of interest, should , it become necessary to enforce writ for recovery of claim," but that, if the sale did not realize the amount of the decree, the money paid could be appropriated to make up the deficiency.

The accused was charged with misappropriating two sums of money paid to him as interest, alleged to be the property, of H.

Held, by MACDONELL C.J. and DALTON J, (GARVIN S.P.J. dissenting), that there was evidence upon which the jury could find that the money misappropriated was the property of H.

Per MACDONELL C.J., semble.-lt may not be necessary to designate in the indictment the owner of the property misappropriated.

CASE referred by Lyall Grant J. under section 355 (2) of the Criminal Procedure Code.

The reference is as follows :-

On Saturday, January 10, 1931, at the Kandy Assizes, one Albert Godamune was convicted of dishonestly misappropriating on a day between March 30, 1928, and January 21, 1929, at Kandy, a sum of Rs. 5,000, the property of Mr. C. Ensor Harris, and of having thereby committed an offence punishable' under section 386 of the Penal Code. He was also convicted of having dishonestly misappropriated a sum of Rs. 3,000 belonging to the same person on a day between August 28, 1928, and January 21, 1929. '

Various points of law were argued in the course of trial, one of which was that there was no evidence in the case upon which the jury could find that the money in question was at any time the property of Mr. Harris. In the circumstances of the case this- question is not without difficulty, and, owing to the absence of authorities in Kandy, it was not argued before me with the fulness which it deserved.

Although there was not very much direct conflict of evidence, there was "great divergence in the course of the trial between the inference which Crown Counsel and Counsel for the defence respectively sought to draw from the facts which have been proved.

The facts are shortly and omitting details as follows?:- the accused, a Proctor, was co-trustee of a marriage settlement. The trust funds were invested in a mortgage over lands.

2, The trustor was Mr. Harris;