[1954] EACA 163

## APPELLATE CRIMINAL

Before SIR HECTOR HEARNE, C. J.

## TAPULAL KALIDAS, Appellant

# THE QUEEN, Respondent

# Criminal Appeal No. 2010 of 1953

Bankruptcy Ordinance (Cap. 30)—Sections 144, 148 and 137 (1) $(r)$ —Prosecution ordered and instituted in absence of report and formal application by Official Receiver—Whether a nullity—Evidence—Effect of section 17 (8), Bankruptcy Ordinance on Indian Evidence Act, section 132—Incriminating answer in public examination may be used in evidence against bankrupt in prosecution -Whether conviction may be founded solely upon—Criminal Practice and Procedure—Proper mode of putting record in evidence.

The Official Receiver conducted the public examination in bankruptcy of the appellant before a Resident Magistrate. The magistrate adjudicated the appellant bankrupt, and, upon an oral application merely by the Official Receiver, ordered that a prosecution be preferred against the bankrupt under section 137 (1) (r) of the Bankruptcy Ordinance (Cap. 30). A prosecution was instituted at the instance of the Official Receiver in that the bankrupt had continued to trade after knowing himself to be insolvent within one year preceding the date of the receiving order. The Official Receiver did not make a formal application for an order to prosecute depending upon a report that in his opinion the bankrupt had been guilty of an offence under the Ordinance. At the trial, which was prosecuted before the magistrate by the Official Receiver, the sole witness for the prosecution was the court clerk who produced from proper custody the file in the bankruptcy cause containing the record of the public examination of the accused. This record contained an admission that the accused had continued to trade for about a month after he knew he was insolvent, but it was not read out in Court. The accused offered no evidence. The magistrate convicted on the admission contained in the record and upon no other evidence. The accused appealed.

$Held$ (2-3-54).—(1) The institution of the prosecution was a nullity in the absence of a report and formal application for an order of the Court by the Official Receiver.

(2) Section 17 (8) of the Bankruptcy Ordinance enacts that the notes of the public examination of a debtor may be *used* in evidence against him and overrides the pro-<br>provisions of section 132 of the Indian Evidence Act. Notwithstanding this, in Kenya the conviction of a bankrupt for a bankruptcy offence contrary to section 137 $(r)$ of the Bankruptey Ordinance should not be founded solely upon an extract from his<br>public examination. Such extract is most probably not substantive evidence but may<br>be used merely to corroborate a witness or to discredit the if he gives evidence.

(3) When the record of a bankrupt's public examination is formally produced from proper custody the contents ought to be put in evidence by the producing witness reading aloud the contents so as to bring the same to the notice of the accused person.

Appeal allowed.

Cases referred 10: Regina v. Scott, 7 Cox Criminal Cases, 164; Regina v. Hillam, 12 Cox Criminal Cases, 174.

## Desai for appellant.

## Bechgaard, Crown Counsel for the Crown.

JUDGMENT.—The appellant was found guilty of an offence contra section 137 (1) $(r)$ of Cap. 30, in that within one year immediately preceding the date of the making of a receiving order he continued to trade after knowing himself to be insolvent.

The prosecution was conducted by the Official Receiver. He called a court clerk who produced from his custody Bankruptcy Cause No. 2/53 which related to the appellant whom he identified. He then formally produced in Court the record of the public examination of the appellant. The notes of the public examination were not read by him. He was not cross-examined and the appellant gave no evidence. After the advocate for the appellant and the Official Receiver had addressed the court, there was an adjournment for nearly a month when judgment was passed. The appellant was convicted and sentenced to nine months' imprisonment with hard labour,

Before dealing with the reasons the magistrate gave for convicting the appellant, I would refer to the way in which the prosecution was instituted. After the conclusion of the public examination the Official Receiver is recorded as having said: "Order under section 144 for section 137 (r)" and the Resident Magistrate before whom the public examination was conducted made the following order: "I order a prosecution to be preferred against the debtor under the Bankruptcy Ordinance, section 137 (r) under section 144 of Cap. 30". Upon that order being made the Official Receiver may properly have instituted a prosecution if an application had been made by him based upon a report that in his opinion the appellant had been guilty of an offence under the Ordinance (sections 144 and 148). But no reference was made to any report and I do not see a report in the file of the magistrate who tried the appellant or in the Bankruptcy file. "The representation or report should be in writing supported by proper evidence and be filed with the proceedings". (Williams, 16th Ed., page 537, where two cases are cited.) I do not think, upon a consideration of the relevant part of the record in the bankruptcy file to which I have referred, that the Official Receiver can be said to have made an application and there was certainly no report on which an application could have been made. I, therefore, think the institution of the prosecution by him was a nullity.

The particulars of the offence with which the appellant was charged were (a) that "he had traded between 4th June, 1952, and 4th June, 1953; (b) after knowing himself to be insolvent". In regard to $(a)$ the appellant had said at his public examination "It was the 7th or 8th Month in 1952 when I stopped business. I certainly carried on till July, 1952". This was an admission, the magistrate held, that between 4th June, 1952, and sometime in July, 1952, he had continued to trade, and it was on that evidence and that evidence alone that (a) was held to have been proved. Notwithstanding the provisions of section 132 of the Evidence Ordinance that an answer which a witness is compelled to give shall not be proved against him in any criminal proceeding, section 17 (8) of Cap. 30 enacts that the notes of a public examination of a debtor may be used in evidence against him. This section corresponds with section 15 (8) of the Bankruptcy Act, 1914. Reliance was placed by the magistrate on what appears in Archbold (32nd Ed., at page 386), that "Where a bankrupt was examined ... he was bound to answer all questions and such answers though they tend to criminate him may be given in evidence against him". But the citation from Archbold refers to what was decided in cases when the Bankruptcy Act of 1914 was not law in England. The first case in which Archbold sets out was decided was *Regina v. Scott*, (7 Cox C. C. 164), when the Bankruptcy Act of 1849 was

in force; and in Regina v. Hillam, (12 Cox C. C. 174), it was decided, in reference to the Bankruptcy Act of 1869, that "it is so far analogous to the Bankruptcy Act, 1849, that the Courts of Bankruptcy have power to compel bankrupts to give answers to questions criminating themselves, that on the authority of Regina v. Scott such answers are admissible in evidence against the bankrupt in a criminal prosecution". But in Kenya we have the law (section 132, Evidence Act) to which I have referred and section 17 (8) of Cap. 30 modifies that law to the extent of saying, not that the notes of a public examination are admissible in evidence against a bankrupt, but only that they may be used in evidence against him. In the commentary on section 15 (8) of the Bankruptcy Act, Williams in the 16th Edition says: "The answers of a debtor in his public examination may always be *used* against a debtor, e.g. when he gives evidence as a witness". I have grave doubts whether in Kenya the conviction of a debtor for a bankruptcy offence can be founded solely on an extract from his public examination more particularly when, as in the present case, while the record was formally produced, the notes of the public examination were not strictly put in evidence by being read by the producing witness in open court, and thus brought to the notice of the appellant. But I allow the appeal and set aside the conviction and sentence on the first point.