1955 Present : Gunasekara, J.

SIRISENA PERERA, Appellant, and H. G. THEDIAS
(Inspector of Police), Respondent

S. C. 785-M. C. Colombo, 2,916/B

Summary trial of non-summary offence-Appeal preferred by accused-Right of Crown to object to summary proceedings on ground of gravity of offence-Criminal Procedure Code, ss. 152 (3), 338 (2)-Penal Code, s. 457.

In a prosecution for forgery punishable under section 457 of the Penal Code the accused-appellant was tried summarily under the provisions of section 152 of the Criminal Procedure Code. The appellant had no objection to his having been tried summarily, and the Crown had no objection either until after the appellant had demonstrated that he was entitled to have his conviction set aside on the merits.

Held, that in the circumstances the gravity of the offence with which the accused was charged was not by itself a sufficient ground for remitting the case for a non-summary investigation.

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

Colvin R. de Silva, for the accused-appellant.

Arthur Keuneman, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

359

July 11, 1955. GUNASEKARA, J.-

The appellant was tried summarily under the provisions of section 152 (3) of the Criminal Procedure Code on a charge of having committed an offence punishable under section 457 of the Penal Code by fraudulently or dishonestly using as genuine a document which he knew or had reason to believe to be a forged document. He was convicted of this offence and sentenced to one year's rigorous imprisonment.

According to the case for the prosecution the appellant had been occupying a house belonging to one M. E. Perera as the latter's tenant and had left it in August, 1953, after Perera had filed an action against him in the court of requests to recover arrears of rent and to have him ejected. The document in question (P1), which is dated the 4th August, 1953, purports to be signed by the appellant and M. E. Perera and states that the appellant had been living in a house belonging to Perera and had on that day '' given over the keys to him without having to pay any arrears ". There is no evidence as to the custody from which P1 was produced before the magistrate's court, but it was stated in evidence by both Perera and the proctor who appeared for him in the civil action that it had been produced by the appellant at the trial of that action on the 23rd November, 1953, and Perera stated further that it was not a document signed by him or by his authority. Perera was also permitted to say in his evidence in chief that " P1 was sent to the E. Q. D. with some other documents ". (One surmises that the letters E. Q. D. stand for Examiner of Questioned Documents.) The only other witness called in the case was the record keeper of the Magistrate's Court of Colombo who produced, marked P2, the record of the action in the court of requests (without stating how he came by it) and also produced, marked P3, " the report of the E. Q. D." that was filed in that case.

The report P3 is inadmissible hearsay, and, no doubt for this reason, the learned magistrate does not refer to it in his judgment. The only matter to which he refers as evidence on the issue of forgery is that the existence of P1 is not mentioned in the appellant's answer in the civil action, which was filed in September 1953. He holds that if the document had been in existence at the time it would have been mentioned in the answer. With all respect to the learned magistrate, I am unable to agree that an omission to plead evidence can be a ground for a conclusion that the evidence did not exist at the time. Moreover, the answer filed by the appellant in the civil case was not in evidence in this case ; for although the entire record P2 was produced the only portion of it that was put in evidence was the report P3.

The only evidence there is in the case to prove th