[IN THE COURT OF CRIMINAL APPEAL]

1962 Present: Basnayake, C.J. (President), Abeyesundere, J., and
Silva, J.

THE QUEEN v. V. P. DAVID PERERA

APPEAL No. 9 OF 1962, WITH APPLICATION No. 9

 S. C. 23-M. C. Kandy, 18,359

Trial before Supreme Court-Charge of possessing or using a forged or counterfeit currency note-Burden of proof-Evidence-Effect of admission of irrelevant evidence-Limits within which the Judge may ask questions from a witness- Penal Code, ss. 478B, 478C-Evidence Ordinance, s. 165.

           In a prosecution for possession or use of a forged or counterfeit currency note the burden is on the prosecutor to prove that the accused knew or had reason to believe that the currency note referred to in the charge was forged or counterfeit.

       Although no objection is taken at the trial to the admission of irrelevant evidence, a verdict founded on such evidence is bad.

     Assuming that it is open to a Judge in a trial by jury to employ the provisions of action 165 of the Evidence Ordinance to put questions to a witness, then, if he asks questions about any facts which are irrelevant, it is incumbent on him to draw the attention of the jury to those facts and direct them that they must not base their verdict on those facts elicited by him which are irrelevant. A Judge acting under section 165 should be wary in questioning witnesses under the powers conferred thereby, especially when the witness is an accused person giving evidence on his own behalf.

         A Judge is not entitled to put leading questions, the answers to which are calculated to prejudice the accused. Further, he must not ask questions in such manner or in such great number as to encroach upon the functions of a Counsel who appears in the case.

APPEAL against a conviction in a trial before the Supreme Court.

                      L. P. P. Wettesinghe (Assigned), for Accused-Appellant.

                     V. T. Thamotheram, Senior Crown Counsel, for Attorney-General

July 24, 1962. BASNAYAKE, C.J.-

           The accused-appellant has been convicted on an indictment containing the following charges :-"

             1. That on or about the 9th day of February 1959 at Dodanwela in the division of Kandy, within the jurisdiction of this court, you die have in your possession a forged or counterfeit currency note, to wit, a

Rs. 100 currency note bearing Serial No. V/13-18748 Knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine and that you have thereby committed an offence punishable under section 478 C of the Penal Code as amended by Ordinance 19 of 1941.

            " 2. That at the time and place aforesaid and in the course of the same transaction you did use as genuine the said forged or counterfeit currency note by tendering the same to one D. M. Dhanapala, knowing or having reason to believe the same to be forged or counterfeit and that you have thereby committed an offence punishable under section 478B as amended by Ordinance 19 of 1941.

          " 3. That on or about the 11th day of February 1959 at Nattaranpotha in the division of Kandy, within the jurisdiction of this court, you did have in your possession a forged or counterfeit currency note, to wit, a Rs. 100 currency note bearing Serial No. V/13-18748 knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine and that you have thereby committed an offence punishable under section 478C of the Penal Code as amended by Ordinance 19 of 1941."

         The burden was on the prosecution to prove that the appellant knew or had reason to believe that the note referred to in each of the charges against him was forged or counterfeit. The prosecution relied on the notes themselves to discharge that burden. Evidence, that the accused