1944 Present : Soertsz J.

AMARASINGHE, Appellant, and SILVA, (Inspector of Police),
Respondent.

89-M. C., Chilaw, 22,107.

Fictitious note-Collateral transaction to disguise the amount of the note-Abetment of offence of taking a fictitious note-Money Lending Ordinance (Cap. 67). ss. 13 and 14-Penal Code, s. 102.

Where a sum of Rs. 650 was lent on the understanding that a promissory note for Rs. 2,000 would be given by the borrower and in pursuance of that agreement a promissory note for Rs. 2,000 was subsequently given.

Held, that the note was a fictitious note within the meaning of section 14 of the Money Lending Ordinance.

Where a Proctor, who arranges the loan in the circumstances and on the terms stated above, writes out the note and takes an active part in the transaction.

Held, that he was guilty of abetting the offence of taking a fictitious note.

APPEAL from a conviction by the Magistrate of Chilaw.

H. V. Perera, K. C. (with him E. F. N. Gratiaen and H. W. Jayawardene), for the accused, appellant.

H. A. Wijemanne, C. C., for the complainant, respondent.

Cur. adv. vult.

August 23, 1944. SOERTSZ J.-

This is a deplorable case, and I have examined it anxiously this way and that, to see whether the evidence has established, beyond reasonable doubt, the charge of which the appellant has been convicted, namely that he abetted one Seiyed Mohamed Issa Bhai to take a promissory note in which the amount stated to be due was, to the knowledge of the lender, the aforesaid Bhai, fictitious.

I would say, at once, that it is difficult to withhold sympathy from the appellant, a young proctor of good reputation who has fallen into the distressing situation in which he now finds himself by responding to an urgent request made to him by a brother proctor in a neighboring district, and by going to the assistance of a complete stranger to him, but a kinsman of the other proctor. The man to whose assistance he went goes by the name of victor Ameresekere. He is described by the Magistrate as a "thoroughly dishonest and unscrupulous witness". There can be no doubt about that. He is an accomplished perjurer, thoroughly unabashed. But, the evidence reveals him as so much worse that there in occasion to fear that he may see, in the description given by the Magistrate, a very flattering picture of himself for, not to waste too many words on him, the evidence shows that law, morality, decency mean nothing at all to him. I cannot help thinking that the magistrate would have done well if he had promptly dealt with him under section 440 (1) of the Criminal Procedure Code.

But when all that has been said about this man, the question still remains whether the appellant has not, by yielding to a generous impulse and going to his assistance, thoughtlessly transgressed the law.

The charge of which the appellant was convicted was laid under section 13 of the Money Lending Ordinance read with section 102 of the Penal Code.

Section 13 says:---------

"Any person who shall take as security for any loan a promissory note . . . . in which the amount stated as due is, to the knowledge of the lender, fictitious . . . .shall be guilty of an offence.

(a) Cases in which a promissory note given in respect of a loan does not disclose upon it any reduction made or sum paid to or about the time of the loan on account of interest, premium or advance charges;

(b) Cases in which a promissory note is taken or other obligation incurred in respect of a loan and at or about the time of the loan, a payment is made or a collateral transaction entered into in order to disguise the actual amount advanced or the rate of interest payable.

Upon the evidence this case cannot be brought under (a) so that if this promissory note is "fictitious " it must be so under (b), and even there, it is clear, upon the evidence, that it is not within the first part of (b) for no cum was paid, no reduction was made