1946 Present: HOWARD C.J.

DIAS, Appellant, and WIJETUNGE, respondent.

1,271-M. C. Colombo, 4,967.

Evidence-Charge of cheating-Proof of intention by evidence of similar acts-Evidence of System-penal Code, s. 400-Evidence Ordinance, ss. 14 and 15.

Where the accused was charged with cheating and the complainant, in order to prove fraudulent intention on the part of the accused, led evidence of a false representation made by the accused to another person in connection with another transaction-

Held, that the evidence of the false representation was not admissible under section 14 of the Evidence Ordinance unless there was a similar representation made ion the transaction which was the subject-matter of the charge.

Held, further, that in order to prove system under section 15 of the Evidence Ordinance evidence of one similar transaction alone is not sufficient.

APPEAL against a conviction from the Magistrate?s Court of Colombo.

H. V. Perera, K.C. (with him H. W. Jayewardene and C. E. L. Wickremesinghe), for the accused, appellant.

L. A. Rajapakse, K. C. (with him D. A. Jayasuriya and G. T. Samarawickreme), for the complainant, respondent.

Cur. adv. vult.

June 3, 1946. HOWARD C.J.-

The appellant appeals from his conviction by the Magistrate?s Court of Colombo on a charge of cheating the complainant in respect of a sum of Rs.1, 000, contrary to the provisions of section 400 of the Penal Code. The complainant in his evidence stated that on April 27,1945, the appellant undertook to deliver to him on May 6,1945, the articles of furniture in his house specified in the plaint. In consideration of that under taking the complainant paid to the appellant Rs.1, 00 in cash Rs.300 and by cheque Rs.700. The complainant further stated that he had been to the appellant?s house on several occasions but he had not received either the furniture or the return of his money. It was also proved that in April 1945,the Kotalawala Estates Co., Ltd. filed an action against the

appellant. In June 1945, the appellant was examined under seciton219 of the Civil Procedure Code and during such examination stated that there were no articles of furniture belonging to him in his house. Evidence was also tendered for the prosecution that on February 12, 1945, the appellant offered to rent to one T. P. Balasooriya a house No.12, Kotalawala Terrace, together with the furniture for Rs.75 a month. Balasooriya says that he paid the appellant Rs.300 in advance, but the latter had failed to put him in possession or pay back the Rs.300. The furniture to be hired, according to Balasooriya, consisted of the identical articles that were to be sold to the complainant in this case. Balasooriya in cross-examination stated that he told the appellant on February 29,1945, that he did not want the house, but only money back. Balasooriya also said that the appellant held him to his contract and refused to give him back his money. Further evidence was tendered by a man called Mohideen to the effect that he advertised for a house in February 1945. The appellant replied to the advertisement and told him that he had a house fully furnished which he would let. Mohideen and the appellant went to the house at 12, Kotalawala Terrace. There the appellant told Mohideen that he should buy the furniture if he was renting the house. Mohideen agreed and paid the appellant Rs.350 as an advance out of the sum of Rs.2, 250 which he agreed to pay for the furniture. The articles of furniture seem to be identical with those that the appellant agreed to well to the complainant. Mohideen further stated that up to date the appellant has neither given him the furniture nor returned his money.

It is contended by Mr. Perera on behalf of the appellant that the evidence of Balasooriya and Mohideen was not admissible. And without such evidence it has not been established that there was any fraudulent intention on the part of the