clr/1962/1962_1_188.pdf

(2)Theopening words insection 267, 268and 269"ifthe offender is" in the context where these sections occur, clearly mean : Ifthe person whostealswithinthe meaning of.section 255,Isa person employed etc.,etc. Read inthisway,eachofthesesectionsfully coverstheoffencestated in themargin. 188

(3)The combined effect of sections 255, 259, 262 and 267 is to create the offence of embezzlement asprovided In section 17 of the English Larceny. Act, 1916.

(4)Per ZEKIA (JOSEPHIDES J., concurring):— 1962 Apr 9, 11, 12, July 10 CHAKALAMK» SOTSJUOU (PAHBOS) V. The interpretation laid down by this Court, might differ from the one accepted by English authorities. Indeed It is difficult to reconcile the view we havetaken with some English authorities on the point. However, as we agree to the reasonableness of the Interpretation rendered by this Court, we concur with our brother Judges. Appeal dismissedwith regard to the convictionsof the offencesof stealing and false accounting. Appeal allowedwith regard tothe convictionof the offence of forging and uttering. Cases referred to :— Policev. Pericles Papoioannou 17C.L.R. 50. Appeal'against conviction. \ The appellant was convicted on the 3rd March, 1962 at the Assize Court of Famagusta (Criminal CaseNo.7347/61) on 5counts of the offences of

(1). Stealing by person in the public service contrary to ss.262 and 267 of the Cr. Code Cap. 154,

(2)Fraudulent false accounting contrary to section 313(b) of the Cr. Code, Cap. 154,

(3)False accounting by public officer contrary to section 314 of the Cr. Code Cap. 154,

(4)Forgery contrary to ss. 331,332, 333, 334and 335 of the Cr. Code Cap. 154,

(5)Uttering a false document, contrary to section 339 of the Cr. Code Cap. 154and was sentenced by Attalides, P.D.C. Loizou and Kourris,DJ.J. to 9months' imprisonment on each count, the sentences to run concuirent ly. G. Cacoyatmh· tor the appellant. A. Fiatij*o.\ for the icspondenl. ( ui tulv. Villi The fatts sufficiently appear in the judgment delivered by VASSILIADLS, J. 189 T H E RPPIIBLIC 1962 Apr. 9, I I , 12, July 10 ( HARALAMROS S O I bit K i l l (PAMIKJS) V. • i l l . R l PUHI.K WII^ON, P. : The first judgment will be delivered by Mr. Justice Vassiliades. VASSNIADLS, J. : This is an appeal against conviction by ihc AssizeCourt of Famagusta on five counis chaigingthe appellant with the misappropriation of a sum of £20.- and the defalcation of accounting documents in connection there­ to. Count I isforstealing the£20 ; Count* 2and 3for false accounting ; and Counts 4 and 5 for forging and uttering a relative receipt. The grounds of appeal, elaborately put in the fourteen paragraphs of the notice of appeal, by able counsel, may be divided in two parts : (

1. a)legal grounds in support of the contention that thefacts as found do not establish the offences charged ; and (
2. b)that the findings of the trial-court are not justified by the evidence. Grounds outside these two main categories, were not pressed. The appellant is a Government employee with 22 years service, attached at the material time,to the District Adminis­ tration as Chief Village Roads Foreman. In his capacity as such, he had under his control government machinery, including a grader. For the use of this grader in levellingcertain village roads the appellant received from the Inspector and Treasurer of the Improvement Board of a district area (P.W.I) the sum of £25.— on the 24th October, I960 ; and signed the relative official voucher on the Board's forms, which was put in evi­ dence as cxh.l. The document speaks for itself, confirming the fact that this was an official payment ; for the use of the government grader ; made to the appellant in his official capacity. In the ordinary course of his duty, the appellant, on his part, should fill in and issue to the payer, a corresponding receipt-voucher on the government-form known as F. 18, out of a block of such forms, inappellant's hands for the pur­ pose. This is issued in triplicate, with different colouring, apparently lo avoid mistakes, and help auditing. The while part remains on ιhe block as an official record ; ihe yellow part (to the same effect) goes lo the payer of the money ; and the pink pari is attached to the lodgmenl-voucher, which goes with the money to the District Treasury in support of the relative account. 190 The appellant prepared, signed and issued an official receipt on form F. 18, in connectionwith the transaction in question, on the 3rd December, 1960, viz. about six weeks after he received the money. The pink and white parts were traced in the respective government-records, and they were produced as exhibits 13 and 14 respectively ; the former is a carbon-paper copy of the latter. The yellow part was not iraced. This receipt, however, is for £5 ; and not for £25.— (Typed notes of the record, p.70 ; in the fourth page of the judgment). The Inspector-Treasurer of the Improvement Board (P.W.I) stated that some time after the said payment, the appellant delivered to him an official receipt on form F. 18, for £25.—, which the Inspector (P.W.I) kept in his possession until the 28th February, 1961, when he returned it to the ap­ pellant at the latter's request, for adjustment, after a refund of £20.—, made by the appellant on that date ; a refund from the £25 paid to the appellant by the witness on the 24th October, I960, under exh.l. (Typed notes p.2,C-H). The appellant admits giving a yellow-colour receipt "similar to F.18" to the witness (P.W.I) for £25, "about a week or 10 days" after the payment of the money on October 24th. (Typed notes p.47, F.) But that, he says, was not the yellow part of exhibits 13and 14. Itwas aprovisional receipt, he said. ..The yellow*part,,.according toappellant's evidence, was for £5, same as the other parts ; and was delivered by him to a certain Costakis Andreou, a driver, in December, together with £20.— for refund to the Improvement Board. (Notes p. 48, D and E.) Costakis Andreou, according to the appellant misappropriated the £20 ; and appellant never saw that yellow part of the F.18 for £5.—again. Andreou informed him later, he says, that it could" not be found. (Notes p.50, E). As regards ihc "provisional" yellow coloured receipt "similar to F.IK" for £25. which he gave to ihc Inspector (P.W. I). the appellant admits asking for its return,and actual­ ly taking it back from the Inspector in February, when appel­ lant refunded the £20 ; he put it in his ollice papers, he says. and it was therewhen heleft theollice early in March. (Notes ρ 50. Ε.) Hut in fact no such paper was found. Appellant's version regarding the said payment of the £25, the receipts issued, and the refund is this : After calcu191 1962 Apr. 9, 11, 12, Jul. 10 CHAKALAMBOS SOTOUBU (PAMBOS) v. · THE REPUBLIC Vassiliades, I 1962 Apr. 9, 11,12, July 10 CHARALAMBOS SOTERIOU (PAMBOS) ' V. THE REPUBLIC Vassiliades, J. lating the price and negotiating with the Improvement Board for the services of the Government-grader, the appellant received £25.— promising to'make a further reduction, if he could do so. For. this amount he signed exhibit 1 on the Board's form, on the 24th October, 1960. He also issued a provisional receipt of a yellow-colour "similar to F.18 which he handed to the Board's inspector a week or 10days later. By the 3rd of December, 1960, appellant decided to re­ duce the charge for the grader to £5.— and refund the £20.—, he says. He then issued an F.18 for £5.— and handed the yellow part of the voucher together with the £20 to Costakis Andreou to pass them over to the Improvement Board. Costakis Andreou misappropriated the £20, appellant says, and lost the F.18 for £5. When he discovered the mis­ appropriation of the money, the appellant made Andreou pay it back by instalments, he says. And when he had re­ covered it all, by the end of February 1961, he went to the village,where he refunded the £20.—to theBoard's Inspector, and obtained the return of the "provisional" yellow receipt for £25,which was no longer any use to the Inspector. (Notes Ρ-50, D.) This was on the 28th February, 1961, after the Auditors had come for a surprise inspection of appellant's account on the previous day, the 27th February. Costakis Andreou was not called as a witness ; and neither the "provisional" yellow-colour receipt for £25, nor the yellow part of the F.I8 for £5.—were ever traced. Nor was the refund discussed with the District Officer or any other superior officer. After hearing the evidence for the prosecution, and after hearing the appellant in the witness-box for several hours (his evidence covers 20 pages of the record) the trial court reviewed the whole evidence before them, and made their findings. We are satisfied, the Court say, that the extra work was agreed to be done at £25. (Page 72, F. of the record) We are further satisfied that the accused, some days later, delivered to P.W.I (the Board's Inspector) the yellow duplicate of Form F. 18 for the sum of £25 (Page 73, B.) 192 We have no doubt in our mind that the accused, having been faced with the auditor on the 27th February, he rushed on the evening of the 28th to find P.W.I (the Board's Inspector) in order, on the one hand, to destroy a damning piece of evidence against him, and on the other hand, to settle the outstanding bill appearing at the Petrolina Station in the name of the District Administration" (Page 73, G.) The conduct of the accused, his entries in the various official documents, his receiving of the £25 and his depositing with the District Treasury of only £5, and his hurried trip to Asha and then to Aphania, together with the remaining circumstances of this case, leave no doubt in our mind that his intent was to defraud. " (Page 74, D & E.) Upon these findings the trial-court convicted the appellant on counts 2 and 3 (for false accounting) and 4 and 5 (forging and uttering the missing yellow part of F.18 of the 3rd December). And relying on the judgment in Police v. Pericles Papaioannou(17 C.L.R. p. 50) the Assize Court rejected the submission of the defence regarding count I, for stealing, and convicted the appellant on that count as well. In view of the very serious consequences of these convictions for the appellant, this Court has listened to the able plea advanced on his behalf by learned counsel, with the utmost care. After full consideration of the whole case, the Court unanimously agreed that the trial - court's findings regarding the misappropriation of the £20, between the receipt of the money by the appellant on the 24th October, 1960 and the 3rd December, 1960, when he issued the F.18 for £5 (exh. 13) should not be disturbed. On these findings, which, in our opinion, are fully justified on the evidence, the conviction on counts 2 and 3 must stand. As regards the convictions on counts 4 and 5 for forging the yellow-part of F.18, No. L. 102316, of the 3rd December, 1960, and uttering such forged document, this Court are inclined to the view that in the absence of the alleged forged document, in the circumstances of this case, the appeal should succeed ; and the convictions on counts 4 and 5 be set aside. This disposes of the factual part of the appeal. What 193 W62 Apf.VU.ll. July 10 CHAHWJUaBUi SOTEMOU (PAMBOS) V. THE REPUBLir Vassiltades, J 1962 Apri. 9, II, 12, July 10 ('HAKALAMimS SorfRiou ( P AΜBOS) V. T u t RfcPUBl.lC Vassiliades, J. remains is thecontention advanced on behalf of the appellant. that the trial-court's findings cannot support the conviction on count 1,for stealing. Sections 262 and 267 of our Crimi­ nal-Code (Cap.154) upon which count I is based, merely provide for punishment, learned counsel submitted ; ihey do not create an offence. The offence for which these (wo sections provide the punishment, is ihe offence of stealing ("the felony termed theft" as section 262 puts
3. il)which is the offence under section 255 of Ihe Code. The trial court findings, counsel further submitted, could perhaps amount to embezzlement under s.17 of the Larceny Act, 1916 in England ; but cannot amount to the felony of theft under section 255 of our Code. And, elabora­ ting on the distinction between larceny and embezzlement in the law of England, counsel submitted that while our code provides for the former, it does not provide for the latter. Interesting and attractive as the argument appears to be. in my opinion, it is devoid of substance. As regards the first part of the submission, to the effect that sections 262 and 267 of our code, merely provide for punishment, one may observe at once,(hat both sections refer to the offence of stealing defined in section 255. But that cannot mean that without the definition-section, the offence of stealing is not provided for. *• •% , \ * - * Reading section 262, or section 267 in its context, one would only have to attach a meaning to the words "any person who steals" in the former section,· or the correspond­ ing expressions in the latter, and one would have both offence and punishment in the section. And surely the Courts applying the law codified in the Cyprus Criminal Code, would be able to give a meaning to these words or expressions, even without section 255. Once, however, section 255 is there, opening the part of the Code covering "Offences Relating to Property", as a definition-section, one does not have to look for the meaning; the Court applying the Code, must give to these words and expressions, the meaning provided for them or amplified and settled, in the definilion-section. As regards the second part of the submission to the effect that our Code has, for some reason or other, failed lo provide for the offence known as embezzlement in the law of England, 194 % 1962 -\pr. 9. 11, 12, July 10 one has only got u» look whether the definition of stealing in section 255 of our code is wide enough to cover embezzlement. ' Speaking for myself, I have no doubts on the point. My brothers Zekia and Joscphides JJ. lake Ihe view thai ihe combined effect of sections 255, 259, 262 and 267, is to create the offence of embezzlement as known in the English Law and as provided in section 17 of the .Larceny'Act. 1916. We all agree lhat on the facts of this case as found by the trial court, the conviction on Count 1 must be sustained. Section 255 of our Code originates in section 245 of the Cyprus Criminal Code Order in Council, 1928. enacted in thai year, for the then Crown Colony of Cyprus, in substitution of the Ottoman Penal Code (Vide M.P. 1326/26/1;— red 251 ; and official Gazette No. 1947 of 17th October, 1928). According to the Memorandum of the Attorney-General, attached to the relative Bill :— "The draft Code, based on ihe principles of English Law, followed closely a- Model Code compiled by the Legal Advisers to ihe Colonial Office for the East African Dependencies". (M.P. referred to above, at red 137, paragraph 5.) Our Code, therefore, docs not originate in an enactment intended to codify the English common law ; o r ; for that matter, the law of England at that time. And the absence of special provision for the crime of embezzlement, corresponding to section 17 of the Larceny Act, 1916, is not, in my opinion, an omission, accidental or intentional, lo provide for that crime, as suggested on behalf of the appellant. It occurs because misappropriations by clerks or servants, were considered as sufficiently provided for, by ihe sections dealing wilh the various kinds of stealing. The opening words in sections 267, 26S and 2ft9 "If the offender is" in ihc context wheie these sections occur. clearly mean, in my view : .If ihe person who steals within the meaning of section 255, is a person employed. . : . . Vie. etc. - Read in this way. each o( these sections fully'Voveis the offence stated in the margin. Mere, reference lo oihcr Criminal Codes, is, I think. enough to remove any.'hc'silalion on ihe point. In the Cri195 1 CHARALAMBOS SOTEWOU (PAMBOS) V. T i l l · R F P U B II C ViissiliiKtcs, 1. 1962 Apr. 9, 11. 12, July 10 CHARALAMBOS SOTtRIOU (PAMBOS) V. Τ HL· REPUHlir Vassiliades; J. minal Code of Canada (Snow's 6th Edition, 1955) there is no reference to embezzlement in the Index, at all. Fraudulent conversion and allied offences, in sections 276 -278 under the general heading of "Theft" in Part-VII, dealing with offences against property, cover the ground (Vide "conversion" at page 237 ; and section 276 at page 245). In the French Penal Code, misappropriation of money by public officers (articles 166—198) is one of the "Felonies and Misdemeanours against Public Order" (articles 132—294) Larceny comes under the part for "Felonies and Misdemea­ nours against Property" (articles 379—463). And misap­ propriation by a servant (article 386) is an aggravated form of stealing. (Vide the American Series of Foreign Penal Codes — France — at pages 72 and 130). In the German Penal Code (same Series — No. 4 — Germany), larceny and embezzlement are dealt with under the same chapter, 19, sections 242—248. Fraudulent con­ version is provided for, in section 246 at page 127 under the heading of embezzlement. And a comparison of that section with the proviso to our section 255

(1)shows that they both cover much the same offence. I do not consider it necessary to deal further with the point. In my opinion, the definition-section of our Code (section 255) was apparently intended to cover all kinds of stealing, including embezzlement ; and section 267 read together with sections 255 and 259 fully covers the case in hand. The result is that the appeal against the convictions on counts 1, 2 and 3 fails ; and the convictions on these counts stand. The appeal against the convictions in counts 4 and 5 succeeds ; and these two convictions are set aside. As the sentence on each of. these counts is 9 months imprisonment,running concurrently,theterm to run in respect of the first three counts from the date of conviction. We affirm the sentence as it stands, although we feel that we must say that in a case of this nature, concerning an experienced government servant, we think that the sentence imposed is very lenient. ZEKIA, J. : The only statement I wish to make is thai the interpretation laid down by this Court might differ from 196 the one accepted by English authorities. Indeed it is difficult to reconcile the view we have taken with some English autho­ rities on the point. However, as I agree to the reasonable­ ness of the interpretation rendered by this Court, I concur with my brother Judges. W6I Apr 9;11, I? July m CHARALAM*" SortRIOl (PAMBOS) ν IHH JOSEPHIDES, J. : I agree with the result. As already stated in thejudgment of my brother Vassiliades, J., it is my view that the combined effect of sections 255, 259, 262 and 267 of our Criminal Code is to createthe offence of embezzle­ ment as provided in section 17 of the English Larceny Act, 1916. I would, however, associate myself with the observa­ tions made on this point by my brother Zekia, J. WILSON, P. : 1 agree. Appeal dismissed with regard to the convictions of the offences of stealing andfalse accounting. Appeal allowed with regard to the conviction of the offence of forging and uttering. 197 RFPUHI Zekia. J.