[1956] EACA 8

# APPELLATE CRIMINAL

$\mathcal{A} \rightarrow \mathcal{A}$

#### Before O'CONNOR, C. J., and RUDD, J.

## **GURDASS SINGH GILL (Appellant)**

## ν. REGINA (Respondent)

### Criminal Appeal No. 42 of 1956

Bankruptcy Ordinance (Cap. 30), section 137 (1) $(r)$ —Bankrupt continuing to trade after knowing himself to be insolvent—Distinction between to "trade" and to carry on business—Construction of statutes—Bankruptcy Ordinance, section 17 (8)—Bankruptcy Rules 55 and 317—Civil Procedure Ordinance, section 3—Civil Procedure Rules Order XVII, rule 5—Admissibility of Note of a private examination, and of the Public Examination in Bankruptcy, of debtor in subsequent criminal proceeding—Section 141 proviso— Sentence of fine for bankruptcy offence.

The appellant who was engaged in the business of a transporter appealed against convictions of two offences under the Bankruptcy Ordinance (Cap. 30), i.e. continuing to trade after knowing himself to be insolvent contrary to section 137 (1) $(r)$ , and failing to keep proper books of account contrary to section 141 $(1)$ .

*Held* (22-5-56).—(1) In construing section 137 (1) $(r)$ of the Bankruptcy Ordinance, it is the wrong approach to consult authorities upon the meaning of the word "trade" in other statutes and other contexts without having first made a critical examination of the word in the Bankruptcy Ordinance itself. The first essential is to see what the Bankruptcy Ordinance itself says: "For the best and safest guide to all legislation is afforded by what<br>the legislature itself said." (Commissioner of Stamps, Straits Settlements v. Oei. Tjong Swan and others, (1933) A. C. 378 (P. C.).

(2) A critical examination of the Bankruptcy Ordinance and of numerous authorities<br>on other statutes showed that "trade" and "business" were not synonymous terms:<br>"business" has a more extensive signification than "trade", to carry on the business of a carrier or transporter does not thereby continue to trade within the meaning of paragraph $(r)$ of section 137 (1) of the Bankruptcy Ordinance. Appeal against the first conviction allowed.

(3) (a) Record of a private examination of the appellant by a Bankruptcy Officer proved to have been signed by the appellant; and (b) typed transcription of the shorthand notes, taken by an Official Shorthand Writer, of t before the Magistrate.

(4) It was for the accused to show that he was entitled to the benefit of the proviso to section 141 of the Bankruptcy Ordinance and this he had not done.

(5) If, after consideration of all the material circumstances, the Court considers that a fine would be a proper sentence for a bankruptcy offence, the Court has power to inflict a fine. Dictum of Nihill, C. J., in Mohamed Alan s/o Alam Din, 23 K. L. R. Pt. I 34, not followed.

Cases referred to: Delany v. Delany, 15 L. R. (Ir.) 67; Skinner v. Breach, 96 L. J. Cases referred to: Delany v. Delany, 15 L. R. (Ir.) 67; Skinner v. Breach, 96 L. J. K. B. 834; Brimelow v. Casson, 1924 1 Ch. 302; National Association of Local Government Officers v. Bolton Corporation, 194

JUDGMENT.—The appellant appeals against convictions of offences against the Bankruptcy Ordinance, and sentences of three months' imprisonment to be served consecutively on each of two counts. The alleged offences as set out in the charge sheet are as follows: -

## FIRST COUNT

Statement of Offence.—Continuing to trade after knowing himself to be insolvent contrary to section 137 (1) $(r)$ of the Bankruptcy Ordinance (Cap. 30, Laws of Kenya 1948).

Particulars of Offence.—Gurdass Singh Gill at Nairobi in the Nairobi Extra-Provincial District in the Colony of Kenya, in respect of whose estate a receiving order was made on the 3rd day of September, 1954, within one year immediately preceding the date of the making of the said receiving order, that is to say between the 2nd day of September, 1953, and the 2nd day of September, 1954, continued to trade as a "transporter" after knowing himself to be insolvent.

### **SECOND COUNT**

Statement of Offence.-Failing to keep proper books of account contrary to section 141 (1) of the Bankruptcy Ordinance (Cap. 30, Laws of Kenya, 1948).

Particulars of Offence.—That Gurdass Singh Gill at Nairobi in the Nairobi Extra-Provincial District in the Colony of Kenya, who was adjudged a bankrupt on the 28th day of March, 1955, in Bankruptcy Cause No. 27 of 1954, having been engaged in the trade or business of transporter during a period in the three years immediately preceding the date of the presentation of his bankruptcy petition, that is to say between 2nd September, 1951, and 2nd September, 1954, did not keep proper books of account throughout that period or did not preserve all books of account so kept.

The Memorandum of Appeal contains the following grounds of appeal: —

(1) That evidence was wrongly admitted in the form of transcripts of shorthand notes on which the learned magistrate relied in convicting the appellant.

(2) That the learned magistrate misdirected himself in his interpretation of the term "trading" as it appears in section 137 (1) $(r)$ of the Bankruptcy Ordinance.

(3) That there was insufficient evidence on which a conviction could be based.

(4) That the learned magistrate was wrong in imposing a consecutive sentence in respect of the two counts charged in the charge sheet.

(5) That in any case the sentence is excessive and harsh.

It is convenient to consider the second ground of appeal first.

Section 137 (1) (r) of the Bankruptcy Ordinance reads as follows: $-$

"137. (1) Any person who has been adjudged bankrupt or in respect of whose estate a receiving order has been made shall in each of the cases following be guilty of an offence: —

( $r$ ) If, within one year immediately preceding the date of the making of the receiving order, he has continued to trade, after knowing himself to be insolvent."

The only business carried on by the appellant in the year immediately preceding the receiving order was the business of a transporter, and the question of law that arises on the second ground of appeal can be stated in this form. Is a person who continues to do business as a transporter a person who "continues to trade" within the meaning of paragraph (r) of section 137 (1) of the Ordinance? The learned trial magistrate answered that question in the affirmative, holding that the terms "trade" and "business" were not susceptible

$\mathcal{L}_{\mathcal{A}}(x) = \mathcal{L}_{\mathcal{A}}(x)$

of separate and distinct meanings and that they were synonymous words. He held that if paragraph $(r)$ of the subsection was construed so that a person engaged in trade is affected by it and not a person who carries on a business. that would inevitably lead to absurdity. He relied on dicta taken from judgments delivered in Delany v. Delany, 13 L. R. (Ir.) 67; Skinner v. Breach, 26 L. J. K. B. 834; Brimelow v. Casson, (1924) 1 Ch. 302; National Association of Local Government Officers v. Bolton Corporation, (1943) A. C. 166, and on the meaning given in the $Oxford$ Dictionary of the substantive "trade" as "the practice of some occupation, business or profession habitually carried on especially when practised as a means of livelihood or gain".

We are unable to agree with the learned magistrate's decision on this point. If he had looked at the definition of the intransitive verb "trade" in the same dictionary he would have found that the meaning was more restricted than he thought.

- In Webster's Dictionary the following meanings are given— - (i) "to barter or to buy and sell, to be engaged in the exchange, purchase or sale of goods, wares, merchandise or anything else, to traffic as a business"; - (ii) "to participate in a sale or exchange".

However, dictionary meanings of words may be misleading as to the legal meaning of the word in a particular Ordinance.

We are unable to refer to the report of Delany v. Delany (supra), but, according to the English and Empire Digest, Vol. 44, page 693, that was a case in which a testator directed his trustees to assign and transfer to $H$ "my said business and the goodwill thereof, with the premises in which the same shall be carried on". It was held that the capital of the testator employed in the business at his death and his stock in trade did not pass to $H$ under the bequest. It would appear that the point at issue was the meaning of the word "business" and as to whether it included all the assets of the business and the verb "trade" as an intransitive verb does not appear to have been under consideration. We doubt whether the report of that case would support the construction that was adopted in this case.

In Skinner v. Breach (supra) one of the matters which fell to be decided was the extent of the connotation of the noun "trade" as used in the Trade Boards Acts, 1909 and 1918. Lord Hewart said: -

"No doubt in a great many contexts the word 'trade' indicates the process of buying and selling, but that is by no means an exhaustive account of its meaning. It may also mean a calling or a class of work or a branch of skilled labour."

He went on to point out that it was the meaning of the word in the Trade Boards Act, 1909, that had to be considered and that it was clear from the first provision of that Act and the occupations set out in the Schedule, that the word was used in a sense which was capable of embracing the occupation or business of mending fishing nets. Shearman, J., in his judgment said that the magistrates in the Court below had been misled by cases which were decided under another statute: he emphasized that under other statutes the word "trade" might have a different meaning from the meaning under the statute considered in that case. We respectfully agree. What has to be decided here is the meaning of to "trade" under the Bankruptcy Ordinance, which may or may not be the same as the meaning of that word as set out in dictionary definitions or in other statutes.

In Brimelow v. Casson (supra) the question was whether a dispute as to the terms of service of actors was a trade dispute within the definition of that expression in the Trades Disputes Act, 1906. It was held that the business of presenting histrionic performances to the public for profit was a "trade or industry" in which actors are employed within the meaning of that Act.

In National Association of Local Government Officers v. Bolton Corporation (supra) one of the matters for decision was the meaning of the term "trade dispute" in the Conditions of Employment and National Arbitration Order, 1940, under which "trade dispute" means "any dispute or difference between employers and workmen or between workmen and workmen connected with the employment or non-employment or with the conditions of labour of any person" and "workmen" means "any person who has entered into or works under a contract with an employer whether the contract be by way of manual labour, clerical work or otherwise, be expressed or implied, or in writing and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour". It was held (Lord Thankerton dubitante) that a dispute as to conditions of service of officers of a municipal corporation was a trade dispute within the definition of the expression in the order. Lord Porter, at page 190, posed the question: $-$

"Are trade disputes confined to disputes in trade or industry within the ordinary meaning of those terms?"

He held that they were not so confined. Lord Simon and Lord Atkin agreed in view of the terms of the definition, while Lord Wright, also agreeing, pointed out that the word "trade" was capable of a very wide scope, particularly when used in modern legislation dealing with conditions of employment.

The cases relied on by the magistrate (with the exception of Delany $v$ . Delany) all related to the word "trade" as an employment, and two of them related to the term "trade dispute" as statutorily defined. The magistrate appears to have relied most strongly on the dictum of Lord Wright in the Bolton Corporation case; but the definition in question there was in the widest terms and except for the use of the word "trade" in the expression "trade dispute" which was the expression defined, the definition did not use the word "trade" at all.

It is apparent that the cases so far referred to were all cases in which the particular statute or order required the word "trade" to be used in a wide sense.

As regards section 137 (1) $(r)$ of the Bankruptcy Ordinance, however, there is no occasion to construe the word "trade" as having an especially wide meaning. Indeed, as the paragraph creates a criminal offence punishable with up to three years' imprisonment, there is a compelling reason for construing the word strictly.

There is plenty of authority to the effect that "trade" and "business" are not synonymous terms.

The ordinary legal meaning of the word "trade" is to be found in the judgment of Willes, J., in Harris v. Amery, 13 L. T. (n.s.) 504 at pages 505 and $506: -$

"It is unnecessary to refer to authorities for the purpose of showing though such authorities can easily be produced—that the word "business" is more extensive than the word "trade". Farming is, I think, a business within the meaning of the statute" (Companies Act, 1862) "though it cannot be properly called a 'trade' which is a word having a technical meaning connected with buying and selling and is limited to the case of buying and selling of wares and so forth."

In Speak v. Powell, (1873) L. R. 9 Exch. 25, Kelly, C. B., said: "It is certain that no actor or any person exhibiting gymnastic feats in public or even the proprietor of a theatre would be a trader within the meaning of the Bankruptcy Act now in force" (i.e. the Bankruptcy Act of 1869) "or any earlier Bankruptcy Act."

In re a Debtor, (1927) $\overrightarrow{1}$ Ch. 97, was a case under the Bankruptcy Act, 1914, in which Scrutton, L. J., said, at page 105:—

"I cannot agree with the Registrar that the two words 'trade' and 'business' mean the same thing ... the word 'trade' is often confined to<br>buying and selling commodities ... 'business' is a much wider term than 'trade'.'

In the same case Lord Hanworth, M. R., reviewed some of the earlier authorities at page 103, saying: $-$

"It is clear from the consideration of these cases that the addition of the word 'business' has added much to the scope of the word 'trade' when used alone."

In Smith v. Anderson, 15 Ch. Division, 247, 259, Jessell, M. R., said: —

"It is unnecessary to refer to authorities to show that 'business' has a more extensive signification than 'trade'."

Again in Rolls v. Miller, 27 Ch. Division, 71, 85, Cotton, L. J., said:

"I cannot read the two words 'trade' and 'business' as synonymous."

On page 104 Lord Hanworth refers to the judgment of Le Blanc, J., in 1813 in *Doe v. Keeling*, 1 M. & S. 95, 100, in which he said: $-$

"I do not think that the meaning of the parties can be fairly confined to 'trade', because they have used in addition the word 'business' which must be intended of something not falling within the description of trade."

In Frawley Ltd. (M. & F.) v. Ve-ri-Best Manufacturing Co., (1953) 1 Q. B. 318, **Jenkins, L. J., said, at page 53:** $\rightarrow$

"The expression 'business' may I think have a wider connotation than the expression 'trade', the latter expression being more closely linked with transactions of purchase and sales than the expression 'business'."

But, in truth, it is the wrong approach to consult authorities upon the<br>meaning of the word "trade" in other statutes and other contexts without having first made a critical examination of the connotation of the word in the Bankruptcy Ordinance itself. The first essential is to see what the Bankruptcy Ordinance itself says: "For the best and safest guide to all legislation is afforded by what the legislature itself said" (Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan and others, (1933) A. C. 378 (P. C.). There is no definition of "trade" in the Bankruptcy Ordinance; but the word "trade" either as a noun or a verb is used frequently in Part VIII of the Ordinance (which is the Part dealing with bankruptcy offences, with which we are now concerned) and considerable enlightenment as to the meaning to be assigned to the word can be gained from consideration of the manner in which it is used in that Part.

The word "trade" or "traded" is used in sections 137 (1) (a), (n), (r), 138 (b), 140 (1) (twice) and 1 (a), 141 (1), proviso (b) and 141 (3) (twice), that is 11 times in these sections. In all but two of these instances the expression is "trade or business", e.g. "engages in any trade or business", having been engaged in any trade or business", "for the purposes of such trade or business", "where the trade or business has involved dealing in goods". If the learned magistrate was correct that "trade" and "business" are synonymous terms, then the legislature has used the words "or business" unnecessarily and redundantly nine times<br>in five sections of Part VIII of the Ordinance. We are not entitled to assume this. Moreover, in our view, section 137 (1) $(n)$ places it beyond controversy

that to trade, in section 137, is not synonymous with to carry on business. The relevant wording of that paragraph is: $-$ .

"If ... he obtains under the false pretence of carrying on business, and, if a trader, of dealing in the ordinary way of his trade, any property on credit. . . ."

Clearly a trader means something different from, and more restricted than, a person who carries on business.

In some of the earlier English Bankruptcy Acts the word "trader" had an extended meaning due to the fact that the word was defined in some of the Acts to include persons carrying on certain specified businesses, e.g. bankers and carriers. These would not have been included in the ordinary legal sense of the word "trader" if they had not been specially included by definition. The Bankruptcy Ordinance, however, as has been mentioned, contains no definition of the word "trade" or of the word "trader".

We disagree with the view expressed by the learned magistrate that to construe section 137 (1) $(r)$ of the Ordinance so that a person who is engaged in trade is affected by it and not a person who carries on business, would lead to absurdity. On the contrary, we think that to construe the paragraph so as to include everyone who continues to carry on business of any kind would be an unwarrantable extension of the words used by the legislature and would lead to results which we feel the legislature could not have intended.

We have no doubt that to trade in section 137 $(r)$ has a much more restricted meaning than to carry on business and that a person who continues to carry on the business of a carrier or transporter does not thereby "continue to trade" within the meaning of that paragraph.

For this reason, we allow the appeal as regards the first count and set aside the conviction and sentence on that count.

As regards the second count, the evidence which the appellant claims in his first ground of appeal to have been wrongly admitted consisted of two documents which were made exhibit 3 and exhibit 4 respectively in the lower Court.

Exhibit 3 was a typescript record of the private examination of the appellant by a bankruptcy officer. It shows questions put to, and the answers given by, the appellant. It consisted of three pages, each of which was proved to have been signed by the appellant.

Exhibit 4 was a typed transcription of the shorthand notes, taken by an official court shorthand writer, of the public examination of the appellant. If it was admissible, it showed that exhibit 3 was confirmed by the appellant during his public examination and that it was made part of the record of his public examination.

Whether or not exhibit 3 was admissible as part of exhibit 4, it was fully proved and is admissible in its own right (R. v. Tuttle, 21 Cr. App. Rep. 85).

It contains admissions by the appellant that he started business under his own name as a transporter in 1948 and 1949, that he gave up this business in February, 1954, that he knew that he was insolvent throughout the period that he carried on this business and that he kept no accounts or records of money at all. In our opinion the conviction on the second count could be supported on exhibit 3 alone, without having to pray in aid exhibit 4. Exhibit 4 really added nothing to the evidence in exhibit 3 as regards the second count except to confirm on oath the admissions in exhibit 3, and to give some details which indicated that the debtor's unsecured liabilities exceeded Sh. 5,000. As, however, the learned magistrate admitted and relied upon exhibit 4, it is necessary for us to consider whether it was admissible in evidence.

In connexion with exhibit 4, it is necessary to consider the following five provisions of law: $-$

$\sim$ (1) Section 17 (8) of the Bankruptcy Ordinance: —

"The debtor shall be examined upon oath, and it shall be his: duty to answer all such questions as the Court may put or allow to be put to him. Such notes of the examination as the Court thinks proper shall be taken down in writing, and shall be read over either to or by the debtor and signed by him, and may thereafter, save as in this Ordinance provided, be used in evidence against him: they shall also be open to the inspection of any creditor at all reasonable times."

(2) Rule 55 of the Bankruptcy Rules: —

"Shorthand notes.

Forms 65. 66, 67, 68.

proceedings, be of opinion that it would be desirable that a person (other than the person before whom the examination is taken) should be appointed to take down the evidence of the debtor, or any witness examined at any public sitting or private meeting under the Ordinance, in shorthand or otherwise, it shall be competent for the Court to make such appointment; and every person so appointed shall be paid<br>such sum as the Court may direct, and, where the Court appoints a shorthand writer, a sum not exceeding one shilling per folio of one hundred words for any transcript of evidence that may be required, and such sums shall be paid by the party at whose instance the appointment was made, or out of the estate, as may be directed by the Court."

If the Court shall in any case, and at any stage of the

(3) Order XVII, rule 5, of the Civil Procedure Rules: —

"The evidence of each witness shall be taken down in writing by or in the presence and under the personal direction and superintendence of the Judge, not ordinarily in the form of question and answer but in that of a narrative, and when completed shall be signed by the Judge:

Provided-

- (1) that in all suits triable in the Supreme Court any person desiring that the evidence on a trial shall be reported by a shorthand writer may apply to the Court or a Judge for an order that the evidence shall be so reported, and the Court or Judge, if satisfied that it is expedient or desirable so to do, shall make an order to that effect, and appoint a shorthand writer whose name shall be recorded in such order; - (2) that the Court or Judge may if expedient or desirable of its own or his own motion order that the record of the evidence shall be reported by a shorthand writer; and - (3) that the transcript of such shorthand notes when checked and amended if necessary together with the Judge's notes shall constitute the official record of the evidence:

Provided that in the event of any contradiction existing between the Judge's notes and the shorthand notes, the former shall prevail." $\gamma$

(4) Section 3 of the Civil Procedure Ordinance: $-$

"In the absence of any specific provision to the contrary nothing in this Ordinance shall be deemed to limit or otherwise affect any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force."

(5) Bankruptcy Rule 317:-

"When no other provision is made by the Ordinance or the Rules, the present law, procedure, and practice in bankruptcy matters shall, in so far as applicable, remain in force. Save as provided by these Rules or Rules amending them, the Rules of the Supreme Court shall not apply to any proceeding in bankruptcy."

At the commencement of the public examination of the appellant, the learned Judge applied the provisions of paragraph (3) of the proviso to Order XVII, rule 5, of the Civil Procedure Rules and directed that the transcript of the shorthand notes made by a named official shorthand writer of the Court should constitute the official record of the public examination.

The learned magistrate held that this direction was a nullity inasmuch as the Civil Procedure Rules were not applicable to a public examination in bankruptcy: and that exhibit 4 did not constitute the official record of the appellant's public examination and was not admissible in evidence at the trial by virtue of subsection (8) of section 17 of the Bankruptcy Ordinance; but the magistrate went on to hold that the exhibit could be proved *aliunde* and that it had been so proved and that it was admissible in evidence under section 21 of the Indian Evidence Act to prove admissions made by the appellant.

It is correct that Order XVII, rule 5, does not apply to proceedings in bankruptcy. We do not, however, think that the fact that the learned Judge mistakenly invoked that rule necessarily made his direction a nullity if he had power under the Bankruptcy Ordinance and Rules to do what he did. It is unnecessary, however, to decide this, because whether the transcript was properly admitted in the bankruptcy proceedings or not, parol evidence of the admissions made in those proceedings was admissible in the present case, and it is plain, therefore, that no miscarriage of justice has occurred.

The case of *Reg. v. Erdheim*, (1896) 2 Q. B. 260, was a case concerning section 17 (8) of the Bankruptcy Act, 1883, and rule 67 of the English Bankruptcy Rules, 1886, which are similar to section 17 (8) of the Bankruptcy Ordinance and rule 55 of the Bankruptcy Rules. In that case a shorthand writer was appointed by the Court, in accordance with section 17 (8) and rule 55 of the English Act and Rules, to take down in shorthand the evidence of the defendant at the public examination and to make transcripts of the questions put to and answers given by him and those transcripts were to be the notes of the examination under section 17. The shorthand writer accordingly took down in shorthand the evidence of the defendant and made transcripts of the questions put to and the answers given by him, but none of the transcripts was read over by, or to, or signed by, the defendant. Although the actual transcript was considered not to be admissible, the shorthand writer was allowed to give parol evidence of the questions put to, and the answers given by, the defendant. In the present case, the accuracy of the transcript was proved by the shorthand writer and the transcript was actually signed by the appellant under a statement that it had been "read over and explained to me in Hindustani" by an official Court interpreter. The interpreter proved that the interpretation was correct and that the appellant accepted the whole document as correct. At one stage of the hearing of the appeal, this Court was concerned as to whether or not it had been satisfactorily proved that the appellant was the person who had signed exhibit 4. Neither the interpreter nor the shorthand writer was able to identify him personally as the person who had signed it. It was proved, however, that he was one of two debtors who had been publicly examined on the date in question. The document referred to and confirmed exhibit 3 which was proved to have been signed by the appellant in several places and his signature on exhibit 4 was identical with the signatures of the appellant on exhibit 3. Counsel for the appellant stated that he could not dispute the fact that the appellant had signed exhibit 4. In these circumstances it was plain that exhibit 4 was admissible against the appellant as a record of admissions in writing signed by him.

The case of *Reg. v. Erdheim* (supra) is an authority, not only for the proposition that parol evidence of the questions put to and the answers given by a debtor in his public examination in bankruptcy may be given against him in a subsequent prosecution, it is also an authority which shows that such evidence is not privileged under the maxim *nemo tenetur se ipsum accusare*. In any event, if a person wishes to be privileged from answering an incriminating question, he must claim privilege at the time the question is put. There was no claim of privilege by the appellant during his public examination. Had there been, the Judge might have disallowed the questions or allowed them only on condition that they could not be used against him as evidence of truth in a subsequent prosecution. Since, however, there was no claim of privilege, the admissions in exhibit 4 were clearly admissible in evidence in accordance with the decision in Erdheim's case.

On the third ground of appeal it was argued that there was no evidence of where the offence took place, a point which was probably intended to go to jurisdiction, and it was argued that there was no evidence before the Court to show that the appellant was not entitled to the benefit of the proviso to section 141 of the Bankruptcy Ordinance.

On the first of these points the Crown argued that jurisdiction would flow from the making of the receiving order and the adjudication, both of which took place in Nairobi. The appellant appeared before the lower court in answer to a summons lawfully charging the offence and that gave jurisdiction to the lower court under section 71 of the Criminal Procedure Code.

The answer to the point as to the proviso to section 141 is that it is well settled that it is for the accused to show that he is entitled to the benefit of a proviso (Indian Evidence Act, section 105; Mohamed Harsan v. Reg., Cr. App. $104/55$ E. A. C. A.) and he did not do so. In fact, from admissions in exhibit 4, the magistrate was justified in finding that the appellant's unsecured liabilities exceeded Sh. 5,000.

We consider that there is no substance in the third ground of appeal.

In view of our decision as regards the second count, it is unnecessary to consider the fourth ground of appeal.

The fifth ground of appeal relates to severity of sentence. Counsel for the appellant referred to the fact that all the evidence relied on by the Crown was frankly given by the appellant himself who had not tried to conceal anything during the enquiries consequent upon the filing of his petition. In particular, counsel referred to the evidence of the bankruptcy officer who prepared exhibit 3 and who said: "As far as I know the accused gave me a full account in answer to my questions. He assisted me fully in enquiry into his bankruptcy affairs. I expect him to receive his discharge. He made a fair disclosure and did not obstruct me." Reference was also made to a New Zealand case, noted in the English and Empire Digest, Volume 5, page 1049:-

"Failure to keep proper books—absence of fraud—small trader.... In the absence of fraud the Court will not make an order of imprisonment against a small trader for not keeping proper books of account. Re Grindley, $(1892)$ N. Z. L. R. 130." $\{ \mathcal{A} \in \mathcal{A} \mid \mathcal{A} \in \mathcal{A} \}$ $\mathbf{u} = \mathbf{u} + \mathbf{u}$

Counsel submitted that the offence could properly be dealt with by way of fine.

Mr. Munro, for the Crown, supported the sentences of imprisonment on the usual grounds and, in addition, he submitted that a fine was neither a proper nor a competent sentence in respect of a bankruptcy offence, having regard to the fact that the Ordinance did not provide for a fine as an alternative sentence. In support of this submission, reference was made to *Mohamed Alan* s/o Alam Din, 23 K. L. R., Pt. 1, 34, in which Nihill, C. J., as he then was, quashed a sentence of imprisonment and fine and substituted a reduced term of imprisonment, saying: –

"The penalty section of the Bankruptcy Ordinance applicable to section 138 (now section 141) makes no mention of a fine as an alternative or additional to a sentence of imprisonment. It is true that on account of the extraordinary provisions of section 27 (3) of the Penal Code, the magistrate's order with regard to a fine is not ultra vires, but I cannot believe that it is either proper or expedient to apply that subsection to offences in bankruptcy where the Bankruptcy Ordinance excludes the power to impose a fine. Furthermore, the reason for such exclusion seems obvious. An adjudicated bankrupt has no estate of his own so that a fine imposed on a bankrupt if it is to have effect, is a fine on his trustee in bankruptcy, and if recoverable could only be recoverable to the prejudice of his creditors. If it is not recoverable against his trustee in bankruptcy, and I offer no opinion on this point, the effect against the bankrupt himself can only be to send him to prison for a further term in default of payment."

That case was an appeal from a sentence of a fine in addition to a term of imprisonment. We think that it would be an exceptional case in which such a sentence would be justifiable on a conviction under section 141 of the Bankruptcy Ordinance. The dictum, however, recognizes that there is jurisdiction by virtue of the provisions of section 27 (3) of the Penal Code, to impose a fine instead of, or in addition to, a term of imprisonment. That section was enacted before the enactment of the Bankruptcy Ordinance and should, therefore, be taken to have been borne in mind when the Bankruptcy Ordinance was enacted.

There is nothing in the Bankruptcy Ordinance which requires the exclusion of the provisions of section 27 (3) of the Penal Code and a judgment of the Supreme Court cannot take away from a Court a jurisdiction which is clearly given to it by statute. A Court can, however, express itself on the question as to whether a particular form of punishment is suited to a particular offence, and we conceive that when it does so, the expression of its opinion is worthy of very respectful consideration, but that it is not binding on the Court in subsequent cases.

In Criminal Appeal 25 of 1956, Kassamali Virji Madhani v. Regina, a Court consisting of Rudd and Edmonds, J., refused to follow the above-quoted dictum in Mohamed Alan's case in the circumstances of that appeal.

We recognize that there is weight in the matters referred to in the dictum in Mohamed Alan's case. We think that those matters should be considered and given due weight on the question of sentence in cases under section 141 of the Bankruptcy Ordinance; but, with respect, we do not think it correct, in all circumstances, that a fine imposed on a bankrupt is a fine on his trustee in bankruptcy and can only be recoverable to the prejudice of his creditors. Per contra there may be circumstances where a sentence of imprisonment would prejudice creditors more than a sentence of fine. We do not regard that dictum as binding the Court never to impose a fine in respect of a bankruptcy offence. We think that the Court should consider all the material circumstances. If, upon such consideration, the Court considers that a fine would be a proper sentence, it has power to inflict a fine.

We do not think that the present case is an appropriate case for the infliction of a fine or that it can be said that a sentence of three months' imprisonment is manifestly excessive for a bankrupt who carried on business for a number of years without keeping any books of account at all. The appeal against sentence on count 2 is dismissed.

Before leaving the case we should mention that we have not overlooked the point that count 2 may be duplex. No objection on the ground of duplicity was taken either in the Court below or before us and we, accordingly, express no opinion on this point, except to say that it is manifest from the judgment of the magistrate that the offence of which the accused has been convicted is failing to keep any books of account and not of failing to preserve books of account which he had kept. It is also plain that, if it was erroneous to include in this Court the words "or did not preserve all books of account so kept", that error has not in fact, in the instant case, occasioned a failure of justice. Accordingly, even if the count had been shown to be duplex, we should have applied section 381 of the Criminal Procedure Code and should not have upset the finding or sentence on that ground.