1950 Present : Nagalingam J.

ANNAMALAI, Appellant, and GURUSWAMY (S. I. Police).
Respondent

S. C. 1,148-M. C. Colombo, 6,265

Pawnbrokers Ordinance, No. 13 of 1942-Sections 37, 40, 41-Offence committed by servant of pawnbroker-Proper charge-Burden of proof-Proviso to Section 40-Effect of a proviso.

The accused-appellant was the servant of a pawnbroker. The charge against him was that he being a servant of a pawnbroker had acted in contravention of two provisions of the Pawnbrokers Ordinance, No. 13 of 1942, and thereby had committed offences punishable under Section 41. The charge contained no reference to the pawnbroker having been absent from the shop or premises at the time the appellant was alleged to have committed the offences. Nor was any evidence given with regard to the whereabouts of the pawnbroker.

Held, that, under section 40 of the Pawnbrokers Ordinance, unless the prosecution satisfied the Court that the pawnbroker himself was absent from the premises the servant could not be held to have committed an offence. The charges were therefore defective and the case itself was not established against the accused.

APPEAL from a judgment of the Magistrate's Court, Colombo.

K. C. Nadarajah, with M. Markhani and D. R. P. Goonetileka, for accused-appellant.

A. C. Alles, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

March 31, 1958. NAGALINGAM J.-

This appeal raises an interesting question under the Pawnbrokers Ordinance, No. 13 of 1942. Section 40 of that Ordinance render a pawnbroker liable to vicarious punishment for anything done or omitted to be done by his servant in relation to the business. On the heels of this enactment follows a proviso rendering the servant liable in the absense of the pawn broker from the shop or place of business to punishment for any act done or omitted to be done in contravention of any provision of the Ordinance.

Admittedly, the appellant was the servant of a pawnbroker. The charge that was laid against him was that he being a servant of a pawnbroker had acted in contravention of two provisions of the Ordinance and thereby had committed offences punishable under section 41 of the Ordinance. The point taken on behalf of the appellant is that not only does the charge fail to disclose any offence but that even the evidence falls far short of the proof required of the essentials constituting the offence. The charges contain no reference to the pawnbroker having been absent from the shop or premises at the time the appellant is alleged to have committed the offences, nor was any evidence given with regard to the whereabouts of the pawnbroker. It has been contended on behalf of the accused that unless the prosecution satisfies the Court that the pawnbroker himself was absent from the premises the servant cannot be held to have committed an offence.

Section 37 of the Ordinance enumerates a number of acts all of which it declares to be offences and for which the pawnbroker is made liable. Section 40 of the Ordinance runs as follows : -

40. Anything done or omitted to be done by the servant or agent of a pawnbroker in the course of or in relation to the business of a pawnbroker shall be deemed to be done or omitted, as the case may be, by the pawnbroker : .

Provided that where, in the absence of a pawnbroker from his shop or place of business anything is done or omitted to be done by any servant or agent of the pawnbroker in contravention of any provision of this Ordinance such servant or agent shall also be guilty of an offence and shall be liable to conviction to the penalty prescribed for that offence by this Ordinance.
 
It will be noticed that in the main provision of the section a pawnbroker is made liable for the act or omission of his servant ; the proviso does not create an exception in regard to the liability of the pawnbroker himself. As was said by Lord Macmillan in the case of Madras and Souther