1934 Present: Poyser J.

THE KING v. EMMANUEL.

 80-D. C. (Crim.) Jaffna, 3,737.

    Administrator-Criminal breach of trust of money belonging to estate-Judicial settlement-Penal Code, s. 388.

An administrator may be convicted of criminal breach of trust of money belonging to the estate.

It is not necessary that his accounts should be judicially settled before such a charge could be maintained.

APPEAL from a conviction by the District Judge of Jaffna.

Hayley, K. C. (with him Croos DaBrera and Aluvihare), for accused, appellant.

M. W. H. de Silva, Deputy S.-G. (with him E. H. T. Gunasekere, C.C.), for Crown, respondent.

Cur. adv. vult.

February 9, 1934. POYSER J.-

The accused has been convicted of criminal breach of trust of a sum of Rs. 2,575 being the proceeds of sales of cloth belonging to the estate administered in D. C. Jaffna, Testamentary Cases Nos. 5,828 and 5,870.

The accused up to August 1, 1929, was the Secretary of the District Court of Jaffna. On that date he was transferred to the District Court of Kurunegala in the same capacity. On August 31, 1926, the accused was appointed under section 520 of the Civil Procedure Code administrator of the estate of a deceased person called Mathan Lal, and it is in connection with the administration of this estate that the charge was brought against the accused. Mathan Lal and his brother Baboo Lai carried on business in Jaffna. Baboo Lai died on April 10, 1925, and Mathan Lal died on May 8, 1925. Their estates were administered in D. C. Jaffna, No. 5,828 and 5,870, but the connection between the brothers' affairs being close for all practical purposes. D. C. case No. 5,828, was absorbed in D. C. case No. 5,870. The accused was appointed administrator of both estates, but for the purposes of this case it is only necessary to consider D. C. No. 5,870.

The indictment framed against the accused charged him with criminal breach of trust in respect of the proceeds of cloth sold between December 30, 1928, and January 13, 1929. The indictment, however, was amended during the course of the trial by substituting the date November 14 for January 13.

The estate the accused was called upon to administer was a substantial one, in value over Rs. 500,000. It consisted of both movable and immovable property and included a number of debts due to the estate in connection with which the accused, as administrator, filed a number of actions.

There were also a considerable number of liabilities and various actions were brought against the estate.

Among the assets of the estate was a quantity of cloth which was sold by the accused by auction from time to time, and it is in respect of these sales that the charge against the accused of criminal breach of trust arises.

The accused was originally charged in the Police Court with criminal breach of trust in respect of the sums of Rs. 341, Rs. 300, and Rs. 790. These offences were alleged to have been committed in May and June, 1929, and he was also charged under sections 189 and 190 of the Penal Code with making a document containing false statements.

The indictment sets out different charges against the accused, but it was conceded, having regard to the case of King v. Vallayan Sittambaram[1 20 N. L. R. 257.] that the Attorney-General could frame a charge in respect of any offence disclosed in the preliminary inquiry.

It appears from the evidence that the accused did sell cloth on the dates specified in the indictment for the sum of Rs. 5,575 but out of that amount only Rs. 3,000 was paid in to the credit of the estate on January 12, 1929.

The learned Judge does not examine in detail the evidence in regard to these sales, as counsel for the accused at the trial admitted that such

sales had in fact taken place. According to the Judge he repeatedly emphasized that he did not question the fact that the alleged sales took place.

However, on appeal counsel for the accused does no