Back
ELIYATAMBY v. KATHIRAVEL
NLR37V16
1935 Present:
Drieberg J.
ELIYATAMBY v. KATHIRAVEL
1,023-P. C. Badulla, 15,768.
Cheating-Redeeming article
pawned-False statement in declaration-Loss to pawnbroker-Charge of giving false
evidence-Ordinance No. 8 of 1893, s. 19 (1) and (2)-Penal Code, s. 190.
Where a person redeemed an article pawned by him by making a false statement in
a declaration made under section 19 (1) of the Pawnbrokers Ordinance,-
Held, that he cannot be convicted of cheating, as the pawnbroker, who
acts upon such a declaration is indemnified under section 19 (2) of the
Ordinance.
A false statement contained in such a declaration may be made the subject of a
charge of giving false evidence under section 190 of the Penal Code without the
previous sanction of the Attorney-General.
APPEAL
from a conviction by the Police Magistrate of Badulla.
Gratiaen, for accused, appellant.
Cur. adv. vult.
January 15, 1935. DRIEBERG J.-
Karuppiah who was about to leave for India, entrusted the appellant with an
attiyal, worth Rs. 105, to be pawned. The appellant pawned it on October 13,
1933. He obtained for it Rs. 35 of which he gave Rs. 30 to Karuppiah and he
retained Rs. 5. He gave the pawn ticket to Karuppiah. In February, 1934, the
appellant made a declaration P 2 attested by a Justice of the Peace that he had
misplaced the receipt and could not find it. This is the declaration provided
for in section 19 (1) of the Pawnbrokers' Ordinance, No. 8 of 1893. He presented
this declaration to the pawnbroker, paid him Rs. 37.40 and was given the
attiyal. In March, 1934, Karuppiah presented the pawn ticket to the pawnbroker
and found that the attiyal had been previously reclaimed by the appellant.
The learned Police Magistrate acting under section 152 (3) of the Criminal
Procedure Code convicted the appellant on the following counts :- (1) Cheat and
thereby dishonestly induce Mr. Thiagarajah to deliver to him an attiyal worth
Rs. 105, an offence punishable under section 403 of the Penal Code. Thiagarajah
is the pawnbroker. (2) Being bound to state the truth in an affidavit made a
statement in it to the effect that he had lost a pawn ticket knowing it to be
false, an offence under section 180 of the Ceylon Penal Code. (3) Intentionally
fabricate * false evidence, section 190 of the Ceylon Penal Code.
I have followed the wording of these charges as they are set out in the
judgment. The appellant was convicted on these charges and sentenced to six
months' rigorous imprisonment. Mr. Gratiaen contended that the evidence did not
support a conviction on any of these charges.
The conviction on the charge of cheating is wrong. Under section 19 (2) of the
Pawnbrokers Ordinance, Thiagarajah, the pawnbroker, was indemnified when he gave
the appellant the attiyal on his giving him the declaration. He suffered no
damage or harm by acting on the false representation in the declaration and he
could not therefore have been cheated. The learned Police Magistrate, however,
held that Thiagarajah and his master were injured in body, mind, and reputation
and that this supplied the necessary element of the offence. While the matter no
doubt caused annoyance to the pawnbroker it cannot be said that he was injured
in mind or reputation.
In the second charge "180" is, I think, a mistake for "188", but even then there
is no offence created by that section which is merely a definition of what is
false evidence. The offences constituted by the giving or the use of false
evidence are stated in the later sections and in this the charge was laid under
section 190.
The written report by the police
which intitiated the proceedings, charged the appellant with two offences-one
under section 197 of corruptly using a declaration which a person, viz., the
pawnbroker, was authorized by law to receive, such declaration containing a
false statement that the attiyal was lost; the other was under section 386 of
the Penal Code
