Cooray v The Queen
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1953 |
| Date | 1953 |
| Year | 1953 |
| Court | Privy Council |
Ceylon - Criminal law - Criminal breach of trust as an agent - No agency business - Substituted conviction and sentence -
By section 392 of the Penal Code of Ceylon:
as provided in the section“Whoever, being in any manner entrusted with property, or with any dominion over property, … in the way of his business as a banker, merchant, factor, broker, attorney, or agent, commits criminal breach of trust in respect of that property, shall be punished”
Before an accused person can be convicted of criminal breach of trust as an agent contrary to section 392 it must be established that he is a person who carries on an agency business — not merely acts in a particular transaction as a casual agent — and that the offence charged was committed by him in the way of his business as such agent.
Where the appellant, who had been convicted of criminal breach of trust as an agent contrary to section 392, succeeded in his appeal to the Privy Council on the ground that he was not carrying on the business of an agent, but he had, however, plainly been guilty of a criminal breach of trust under section 389 of the Penal Code of which the jury could have found him guilty in conformity with section 183 of the Criminal Procedure Code, and in respect of which the Court of Criminal Appeal in Ceylon could have substituted a verdict of guilty under section 389, the Board discharged the conviction under section 392 and substituted for it a conviction under section 389 and passed sentence thereon.
APPEAL (No. 38 of 1952), by special leave, from a judgment of the Court of Criminal Appeal of Ceylon (Nagalingam, Gratiaen and de Silva JJ.) (July 24, 1951) which dismissed an appeal by the appellant from his conviction in the Supreme Court of Ceylon (Gunasekara J. and a jury) (October 16, 1950). The conviction was for criminal breach of trust as an agent contrary to section 392 of the Ceylon Penal Code, and resulted in a sentence of five years' rigorous imprisonment.
The following facts are taken from the judgment of the Judicial Committee: After a previous trial, the circumstances of which were now irrelevant, the appellant was retried on an indictment which, after amendment, charged him with having committed criminal breach of trust between May 1, 1947, and April 30, 1948, in respect of a sum of Rs. 155,576.93, entrusted to him by the managers of the Moratuwa and Piliyandale Co-operative Wholesale Depôts of the Salpiti Korale Stores Societies Union Ld. in the way of his business as an agent, to be deposited to the credit of the same Union at the Colombo Co-operative Central Bank and thereby committed an offence punishable under section 392 of the Penal Code.
It was established in evidence that the appellant was the president of the Salpiti Korale Union, a body which supplied goods to retail stores of the Union through wholesale depôts. The method by which the business was carried on was that the Colombo Co-operative Central Bank advanced moneys to member business societies to enable them to buy their stocks. Those advances were repaid weekly and, except in the case of small sums, should have been so paid by money orders and cheques and not in the shape of cash. The Central Bank in its turn paid in the money orders, cheques and any cash which might have been received in that firm to its account with the Bank of Ceylon.
The Union supplied its member societies through three depôts, viz., Moratuwa, Piliyandale and Polgasovita. In addition to his presidency of the Union the appellant was president of the committee which controlled the depôt at Moratuwa and vice-president of the Co-operative Central Bank. No question now arose as to the depôt at Piliyandale, but it appeared that the appellant secured the appointment of a certain Ranatunga to be manager of the Moratuwa depôt. Through him as manager payments of sums due from that depôt had to be made to and deposited promptly with the Co-operative Central Bank.
The appellant appeared to have instructed Ranatunga, instead of following out the prescribed routine, to collect large sums from the retail stores in cash and hand them over to him to be transmitted to the bank. Ranatunga acted on those instructions and transferred the cash which he had collected to the appellant, who, instead of paying it over, appropriated the cash and substituted for it his own cheques for the amount due.
All cheques received by the Co-operative Central Bank should have been immediately sent to the Bank of Ceylon for collection. The appellant, however, as vice-president of the Central Bank, ensured that in many instances his cheques were not sent forward for collection, with the result that when ultimately his activities were discovered some 35 cheques had not been presented. Those cheques were some of those which the appellant had substituted for the cash which he had received from Ranatunga, and it was for misappropriation of Rs. 57,500, being part of that cash, that the appellant was ultimately convicted for criminal breach of trust as an agent.
The relevant provisions of the Ceylon Penal Code are set out in the judgment of the Board.
1953. March 2, 3. Sir Frank Soskice Q.C., Dingle Foot and Carl Jayasinghe for the appellant.
Sir Hartley Shawcross Q.C., Frank...
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