1962 Present : Sansoni, J.

H. CORNELIS CALDERA, Appellant, and V. D. P.
WIJEWARDENE (Inspector of Police), Respondent

S. C. 1077-M. C. Colombo South, 4736/N

Criminal procedure-Accused produced in Court by police officer without process- Framing of charge-Omission of Court to record evidence of police officer-Is it a fatal irregularity ?-Criminal Procedure Code, ss. 148 (1) (b), 151 (2), 152 (3), 425-Scope of s. 425.

Where a police officer produces an accused person in custody before Court without process, the omission of Court to record the evidence of the police officer before framing a charge against the accused is an irregularity which can be cured under section 425 of the Criminal Procedure Code, if the omission has not caused prejudice to the accused.

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

Colvin R.   de Silva, with Miss Suriya Wickremasinghe, for the Accused-Appellant.

T. D. Bandaranayke, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

211

March 2, 1962. SANSONI, J.-

Proceedings in this case appear to have begun with the accused being produced in court by a police officer, after investigation had been made into a complaint that he had cheated one Albert. He was warned to attend on a later day, but he was absent on that day and a warrant was issued for his arrest. He subsequently surrendered, and the Police filed a report in terms of section 148 (1) (b) of the Criminal Procedure Code. The offence alleged was that the accused intentionally deceived Albert by making him believe that a Bank of Ceylon cheque dated 1st April, 1960 for Rs. 300 drawn by the accused was a genuine cheque and that there would be funds in the Bank to meet it on presentation, and that the accused thereby dishonestly induced Albert to pay him Rs. 300 in cash on the cheque-an offence punishable under section 403 of the Penal Code. After evidence had been given by Albert, but not by the police officer who had brought the accused before the court, the Magistrate assumed jurisdiction under section 152 (3) of the Code and charged the accused who pleaded not guilty.

The evidence led at the trial proved that the accused had an account at the Bank of Ceylon. The Bank had written to the accused on 10th February, 1960, asking him to close his account on or before 23rd January, 1960, in view of the very unsatisfactory manner in which he had been conducting his account. He was also informed that if he failed to close the account voluntarily, the Bank would do so without any further notice on the date mentioned, and would send him a cheque for the balance at credit on that date. The date mentioned in the letter was obviously wrong. The account was in fact closed by the Bank on 23rd March, 1960. It cannot, however, be said that the accused was aware on 1st April, 1960, that his account had been closed.

But there remains the question whether the rest of the evidence was sufficient to establish the charge. The accused's account with the Bank has been produced, and it shows that on 19th March, 1960, he had Rs. 279.18 to his credit. On 22nd March he was debited with a cheque for Rs. 279, and there was left a balance of only 18 cents. On 23rd March there was a transfer of 18 cents, and there was nothing left to his credit. No further entries appear in the account.

The accused in evidence admitted that he issued the cheque for Rs. 300 on 1st April to Albert. He did not deny Albert's evidence that cash was given in exchange for the cheque. He attacked the Bank's statement as an incomplete statement of his account for March, 1960, but the Bank clerk who gave evidence was not cross-examined on this point. Obviously nothing was sent to his credit by him after 16th March, 1960, as the Bank statement shows. From all this evidence it seems quite clear that when the accused drew the cheque on 1st April, he knew that it would not be paid. His intention in