012-SLLR-SLLR-1998-V-2-CHANDRAPALA-PERERA-v.-THE-ATTONEY-GENERAL.pdf
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Chandrapala Perera v. The Attorney-General
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CHANDRAPALA PERERA
v.THE ATTORNEY-GENERAL
SUPREME COURT
P. S. DE SILVA, CJ.,
PERERA, J. ANDBANDARANAYAKE, J.
S.C. APPEAL NO. 169/96C.A. NO. 157/91
C. COLOMBO NO. B243/8427 FEBRUARY, 1998
Bribery Act – Sections 19 (b) and 19 (c) of the Act – Acquittal on one count-Conviction on the other count on the evidence of same witness – Rejection ofevidence by implication – Order required to be made at the conclusion of trial- S. 203 of the Code of Criminal Procedure Act.
The appellant was a labour officer. He was charged that he being a public servantsolicited a gratification of tRs. 3,000.00 from the complainant on 17. 1? 83 to assistthe complainant to avoid payment of EPF dues and accepted Rs. 1,500.00 outof that sum on 22. 1. 83, offences punishable under sections 19 (b) and 19 (c)of the Bribery Act. On 22. 1. 83 the appellant visited the complainant's workplace to collect the gratification where the complainant was present with a decoyPolice Officer from the Bribery Department who posed off as the complainant'sson and gave the appellant Rs. 1,500.00 which he put into his-trouser pocket.The money was recovered from his pocket. He, however, denied the charges andsaid that the money might have been introduced into his pocket when he metthe complainant and the police decoy. The Magistrate believed the complainant'sversion; but convicted the appellant only on the charge of solicitation, in viewof the fact that the charges specifically alleged that the appellant accepted thegratification from the complainant. The Magistrate "discharged" the appellant onthe charge of acceptance.
Held:
The evidence of solicitation was in respect of 17. 1. 83 and that solicitationof the gratification had been established beyond reasonable doubt.
In terms of the provisions of section 203 of the Code of Criminal ProcedureAct at the conclusion of the trial the Judge has to record a verdict ofconviction; hence the appellant was entitled to an acquittal instead of a"discharge" on the charge of acceptance.
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Having regard to the fact that the Magistrate had accepted the complainant'sversion and in the light of all the facts and circumstances and the groundon which the Magistrate declined to convict the appellant on the chargeof accepting the gratification, it cannot be said that this was a case inwhich the conviction on the solicitation charge was based on evidencewhich had by implication been rejected by the acquittal on the other count.
Cases referred to :
Nalliah v. Herat 54 NLR 473, at 475.
Sambasivam v. Public Prosecutor, Federation of Malaya (1950) AC 479.
Raphael v. The State 78 NLR 29.
APPEAL from the judgment of the Court of Appeal.
Ranjith Abeysuriya P.C with Ms. Priyadharshini Dias for accused-appellant.
B. Aluvihare S.S.C for Attorney-General.
Cur. adv. vult.
May 21, 1998PERERA, J.
The accused-appellant (hereinafter referred to as the appellant) wascharged in the High Court of Colombo upon an Indictment on thefollowing charges –
That on 17. 1. 1983 at Kandy being a public servant, to wit,a labour officer did solicit a gratification of Rs. 3,000.00 fromDon Wilfred Jayasinghe to avoid the payment of EPF dues, anoffence punishable under section 19 (b) of the Bribery Act.
That on 22. 1. 1983, he did accept the sum of Rs. 1,500.00for the said purpose, an offence punishable under section 19(b) of the Bribery Act.
That on 17. 1. 1983, he being a public servant as aforesaid,did solicit the sum of Rs. 3,000.00 from the said Jayasinghe,an offence punishable under section 19 (c) of the Bribery Act.
That on 22. 1. 1983, he being a public servant, did accept thesum of Rs. 1,500.00 from the said Jayasinghe, an offence
. punishable under section 19 (c) of the Bribery Act.
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At the conclusion of the trial in the High Court, the learned HighCourt Judge found the accused-appellant guilty on counts 1 and 3and imposed on him a sentence of 4 years rigorous imprisonmenton each count, the sentences to run concurrently.
In respect of counts 2 and 4 of the Indictment, the learned TrialJudge refrained from making an order in terms of section 203 of theCriminal Procedure Code acquitting the appellant – instead the learnedTrial Judge has stated thus:
"Having regard to the facts that counts 2 and 4 of the Indictmentare not in accord with the evidence placed at the trial, withoutarriving at an adjudication on the merits on counts 2 and 4 inregard to the innocence of the accused without entering an orderof acquittal, I discharge the accused on these two counts."
The precise word used by the Trial Judge in his judgment is"UTTHARANAYA" which means 'discharged'. (Vide-Paribhasika SabdaMalawa – dated 1968. 1. 31 – Published by the EducationalPublications Dept.).
Section 203 of the Criminal Procedure Code, however, mandatesthat on the conclusion of the case for the prosecution and defence,"the Judge shall forthwith or within ten days of the conclusion of thetrial record a verdict of acquittal or conviction . . ." This the TrialJudge has failed to do in the instant case.
The Court of Appeal has, however, in its judgment rightly madeorder in terms of section 203 of the Criminal Procedure Codeacquitting the appellant on the aforesaid counts in the Indictment.
This court has granted the appellant leave to appeal on thefollowing question –
"Having regard to the acquittal of the appellant on charges 2and 4 of the Indictment, is it safe to permit the convictions oncounts 1 and 3 to stand?"
It was the primary complaint of Mr. Abeysuriya, counsel for theappellant that the learned Trial Judge having convicted the accused-petitioner only on counts 1 and 3 which related to solicitation, refrained
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from making an order of acquittal on counts 2 and 4 of the Indictmentwhich related to the alleged acceptance of the gratification, due tothe wholly contradictory and totally unsatisfactory evidence of themain witness for the prosecution, D. W. Jayasinghe. Counsel submittedfurther that this was a "trap case" organised by officials of the BriberyCommissioner's Department and at the time the alleged payment ofRs. 1,500.00 was made on the 22nd of January, 1983, the virtualcomplainant Jayasinghe was accompanied by a police decoy by thename of Seneviratne who was a witness to the alleged acceptance.The prosecution failed to call Seneviratne as a witness at the trial.It was Mr. Abeysuriya's submission that had the prosecution calledMr. Seneviratne to testify, the falsity of the testimony of Jayasinghewould have been established beyond doubt.
Admittedly, the sole witness who testified in regard to the solicitationand acceptance of the illegal gratification at the trial was D. W.Jayasinghe who was running a motor garage in Kandy. Accordingto Jayasinghe, the appellant visited his garage on 13. 1. 1983 andinformed him that there was a sum of Rs. 87,000.00 due to be paidby him to the Labour Department as EPF payments. He had requestedJayasinghe to call over at his office on the following day. WhenJayasinghe called on the appellant at his office as requested, theappellant is alleged to have taken him to the canteen and soliciteda sum of Rs. 10,000.00 for the purpose of helping him to avoidpayment of EPF dues. Jayasinghe had declined to make this paymentand the appellant had requested Jayasinghe to suggest an amountwhich he could pay. Jayasinghe had then suggested a sum ofRs. 3,000.00 and offered to pay this sum in two instalments. Theappellant had then stated that he would come to the garage on Friday,21. 1. 1983 to collect this gratification.
Jayasinghe had then informed the Bribery Commissioner's Depart-ment and a few days later on 21. 1. 1983, Jayasinghe had beenquestioned in Kandy by officials of the Bribery Commissioner'sDepartment. Therefore, when the appellant called at the garage onFriday the 21st of January, 1983, Jayasinghe had put him off andinformed him that he would have the money ready on the next day.
On the 22nd of January, 1983, Bribery decoy Seneviratne whowas to pose off as Jayasinghe's son awaited the arrival of the appellantat the garage. Jayasinghe was also at the garage at the time. The
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appellant on his arrival at the garage on that day had questionedJayasinghe whether the money was ready and Jayasinghe had repliedthat his son had brought the money. Thereupon the appellant hadcalled both of them (Jayasinghe and his son) to go up to the officeof the garage and as suggested all three of them had gone up tothe garage.
Thereafter, they had left the garage and all three of them hadproceeded to a hotel to have tea. Decoy Seneviratne who posed offas Jayasinghe’s son offered Rs. 1,500.00 to the appellant who acceptedthe payment and put the money into his trouser pocket. At about thattime, four persons came and apprehended the appellant and some-body shouted, ‘pocket karayo'.
The appellant was called upon for his defence by the Trial Judgeand he opted to make an unsworn statement from the dock. Accordingto the appellant, he was duly performing his duty as a labour officerwhen he visited this garage and gave instructions to witness Jayasingheregarding the keeping of proper books. He denied the solicitation oracceptance of any money and he suggested that the Rs. 1,500.00that was recovered from his trouser pocket might well have beeninserted into his pocket on the occasion when he along with Jayasingheand the Bribery decoy had gone to the hotel to have a cup of tea.
Mr. Ranjith Abeysuriya on behalf of the appellant contended thatthe prosecution relied only on one solitary witness, namely,D. W. Jayasinghe in order to establish the charges of solicitation andacceptance of an illegal gratification by the appellant. Counsel sub-mitted that the evidence of this witness on every single aspect of thistransaction had been contradicted at the trial – vide Dl to D17. Ofthese, at least ten were on extremely crucial matters and those havebeen marked D1 to D7, D10, D11 and D12. A true copy of the entiretyof the evidence given by Jayasinghe at the trial has been markedas P3.
It was counsel's contention that in the light of the testimony ofJayasinghe at the trial, it was impossible for the Trial Judge to haveconvicted the accused for the reason that the only evidence adducedat the trial relating to the solicitation and acceptance was that ofJayasinghe and that his testimony was highly unacceptable havingregard to the contradictory nature of his evidence.
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Counsel argued strenuously that in this case the evidence ofJayasinghe was demonstrably contradictory on several crucial aspects,hence it was not possible to act on the rest of his evidence, particularlybecause the prosecution refrained from calling police decoy Seneviratnewho could have supported Jayasinghe if his testimony was truthful.
Counsel contended further that the remaining two charges relatingto the alleged solicitation on 17. 1. 1983 stand or fall entirely uponthe claim of D. W. Jayasinghe alone. In these circumstances, heargued that it was wholly unsafe to regard the evidence of Jayasingheas being worthy of credit in regard to the remaining part of his evidenceand in the circumstances invited this court to quash the convictionsand the sentences imposed on the appellant on counts 1 and 3 ofthe Indictment.
Counsel also submitted that upon a proper evaluation of the dockstatement made by the accused-petitioner, it is manifestly clear thatthe appellant had given a credible explanation of his conduct andsuggested that Rs. 1,500.00 could possibly have been put into hispocket without his knowledge.
The main contention of appellant's counsel was that where anaccused is tried on two connected but different charges in the sameproceedings, a conviction on one count cannot be based on evidencewhich has by implication been rejected by an order of acquittal onthe other count. Counsel adverted to the Judgment of Gratiaen, J.in Nalliah v. Herat1* where he followed the enunciation of this fun-damental principle by the Privy Council in Sambasivam v. PublicProsecutor, Federation of Malaya®. In that case, Gratiaen, J.observed thus: “The rule is of general application and has equal forcewhen one considers the effect which an order of acquittal on onecharge could have on a connected charge in the same proceedings.A verdict on one count cannot be based on evidence which has byimplication been rejected in disposing of another count at thetrial" at 475.
Counsel also relied on the case of Raphael v. The State® whereTennekoon, CJ. adopted the same principle and expressly held thatwhere the accused was acquitted by the Trial Judge on one count,he should have been acquitted on the remaining count which wasbased on evidence which has by implication been rejected by anacquittal on the other count.
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Counsel strenuously urged that the acquittal on two charges relatingto acceptance was entirely due to the rejection of the evidence ofJayasinghe who deposed to an alleged acceptance by the accused-appellant in circumstances totally different to the version stated byhim in his statement to the Bribery Department on 22. 1. 1983. Thushis evidence was unequivocally rejected in regard to the allegationof acceptance. His evidence could have been supported by theevidence of police decoy Seneviratne who was however not calledby the prosecution to testify at the trial.
Senior state counsel however contended that in the present case,the acquittal of the appellant on counts 1 and 3 was not based uponthe rejection of the evidence of witness Jayasinghe, but was due tofailure on the part of the prosecution to establish the specific allegationthat the appellant accepted the gratification from D. W. Jayasinghe.In this connection, state counsel invited the attention of this Courtto the careful analysis by the Trial Judge of the evidence of witnessJayasinghe where he has taken into consideration the following matters:
That the witness was 76 years of age at the time he testifiedat the trial.
That the witness had testified at the trial in regard to thealleged incident which had occurred approximately 8 1/2years before the date on which he testified.
The fact that the witness did not have the benefit of highereducation.
Having regard to the above circumstances, the Trial Judge hascome to a firm finding that the discrepancies in the testimony of witnessJayasinghe could well be due to loss of memory in regard to thetransaction which had taken place about 8 1/2 years earlier.
Senior state counsel also submitted that the evidence of Jayasinghedid not relate to an event which took place on a single occasion,but to several events that had taken place on a number of date’snamely, 13th, 17th, 21st and 22nd of January, 1983. Counsel alsocontended that the acquittal of the appellant on the two chargesrelating to acceptance was not for the reason that his evidence was
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unequivocally rejected by the Trial Judge. On the contrary, counselsubmitted that the Trial Judge has accepted the evidence of thiswitness and has given specific reasons as to why he did not proceedto find the appellant guilty on the two charges relating to acceptance.
In this connection senior state counsel invited the attention of thisCourt to the observations of the learned Trial Judge who in evaluatingthe evidence of witness Jayasinghe had concluded that even theacceptance charge had been proved by the prosecution beyondreasonable doubt – vide an extract from the judgment marked P1 (a).The learned Trial Judge has observed that he refrained from findingthe accused guilty on counts 2 and 4 for the reason that the saidtwo charges specifically alleged that the appellant accepted thegratification from witness Jayasinghe at the trial. State counsel con-tended that in evaluating the evidence of witness Jayasinghe, the TrialJudge has stated thus: "From the detached position occupied by meas a Judge without involving myself in the controversy in this case(as opposed to counsel on both sides), I hold from the witness'sconduct, deportment, bearing, inflexion and delivery, both in theexamination-in-chief and under cross-examination, that the witness hasgiven frank, honest, truthful and bona fide evidence, though due tohis faulty memory, the witness may at times have made certainmistakes on rather trivial and less important aspects of this case".
In the context of the observations made by the learned Trial Judgeas regards the testimony of witness Jayasinghe who was the solewitness called by the prosecution in this case, I have given carefulconsideration to the submission of counsel for the appellant basedon the judgment in Nalliah v. Herat & Raphael v. The State (supra)on which counsel strongly relied to support his submission that wherean accused is tried on two connected but different charges in thesame proceedings, a conviction on one count cannot be based onevidence which has by implication been rejected by an order ofacquittal on the other count.
While I am in respectful agreement with the view expressed byGratiaen, J. in Nalliah v. Herat (supra) which has also been followedin Raphael v. The State (supra), I am of the view that these twodecided cases are clearly distinguishable from the facts of the casethat is presently before us.
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As has been rightly pointed out by senior state counsel in thepresent case, the learned Trial Judge has not by implication orotherwise rejected the evidence of D. W. Jayasinghe. He has on theother hand commended this witness as "a frank, honest and truthfulwitness who has given evidence in good faith, but due to his faultymemory has made at times certain mistakes on rather trivial and lessimportant aspects of this case". I, therefore, regret that I am unableto accept the submission of Counsel for the appellant that the acquittalof the appellant on counts 1 and 3 was for the reason that theevidence of witness Jayasinghe has been rejected by the Trial Judgeby implication. In my view, both decisions cited by counsel have noapplication to the facts of this case. This submission of counsel forthe appellant must in my view therefore necessarily fail.
I shall now proceed to consider the question whether there wassufficient evidence adduced by the prosecution in this case to justifyaffirming the conviction of the appellant on the charges relating tosolicitation – namely, counts 1 and 3.
Admittedly, the charges relating to solicitation refer to the 17th ofJanuary, 1983, a date anterior to the date on which the gratificationis alleged to have been accepted – to wit, 21. 1. 1983. Thereforethe criticism of appellant's counsel on the failure of the prosecutionto lead the evidence of the Bribery decoy Seneviratne to supportJayasinghe's evidence would not arise in respect of counts 1 and 3.It is indeed the uncontradicted evidence of witness Jayasinghe thatit was only after 17. 1. 1983 that he had complained to the BriberyCommissioner regarding this matter.
Further, it must be observed that on a consideration of the evidenceadduced by the prosecution, there are certain items of evidence whichtend to support the proposition that the appellant had taken an unusualinterest in coming to the aid of a person who had acted in violationof the law. The appellant himself in his dock statement has admittedthat Jayasinghe was indeed a defaulter who had failed to makepayments in respect of his employees to the Employees ProvidentFund. In point of fact, the appellant has admitted that he went to thegarage of the complainant Jayasinghe on the 13th of January, 1983,and that at his request, Jayasinghe had seen him at his office onthe 17th of January, 1983. The appellant has also admitted that hewent to Jayasinghe's garage on the 22nd of January, 1983, whichwas the date on which the detection was made. The question arises
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as to why the appellant without complying with the relevant provisionsof the EPF Act and initiating a prosecution against Jayasinghe forhis default, adopted the course of action he did to help Jayasinghe,without any plausible reason for doing so. This conduct on the partof the appellant to my mind is, to say the least, highly suspicious,and must therefore be considered in the context of the other itemsof evidence which relate to the charge of solicitation.
Senior state counsel has adverted to the fact that the appellant'sfield notebook which has been produced marked P4 contained no entrywhatsoever relating to the alleged three visits by the appellant to thecomplainant's garage on the 13, 17th and 22nd of January, 1983.It is significant to note that the appellant had admitted these visitsin his statement from the dock. It was the submission of state counselthat the absence of.entries in the field notebook P4 relating to thevisits of the appellant to the complainant's garage supports the positionthat such visits were not official acts done in good faith. This itemof evidence would also in my view tend to support the allegationsset out in counts 1 and 3. It has also transpired in evidence thatthe appellant had in this notebook P4 made many entries relatingto official work he had performed during this period. The items ofevidence set out above in my view corroborate the evidence ofJayasinghe on the charges relating to solicitation set out in counts1 and 3. I
I have also given careful consideration to the statement the appellanthas made from the dock when he was called upon for his defenceand I am in entire agreement with the submission of state counselthat some of the facts narrated by the appellant in his statement fromthe dock were palpably false and must necessarily be rejected. Counseladverted to that part of the dock statement wherein the appellant hadstated that his visit to the garage of the complainant on Saturdaythe 22nd of January, 1983, was a chance visit and that when hecame to the garage, the Bribery decoy Seneviratne was present. Hedid not know at that time the real identity of the decoy. If this positionset out by the appellant is correct that his visit was a chance visit,then how could one explain Jayasinghe's conduct in awaiting thearrival of the appellant in the company of the Bribery decoy Seneviratneready for the alleged detection. This circumstance necessarily sug-gests that Jayasinghe was awaiting the arrival of the appellant onthe said date having made arrangements with the Bribery Department
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to conduct a detection based on a complaint made by him againstthe appellant.
Yet another aspect of the statement made by the appellant fromthe dock relates to his explanation as to how a bundle of fifteencurrency notes of the denomination of Rs. 100 was found in his pocket,which sum of money was handed over by him to the Bribery decoyon demand. In his dock statement, the appellant has stated that hedoes not know as to how the currency notes came into his trouserpocket. This explanation on the part of the appellant is most unac-ceptable and bears no scrutiny. Is it reasonably possible to introducea bundle of fifteen Rs. 100 notes into the trouser pocket of a personwithout his being aware of it?
Upon a consideration of the totality of the evidence adduced inthis case despite the contradictions that have been proved in theevidence of Jayasinghe, I hold that the charges relating to the solicitationof a gratification set out in counts 1 and 3 of the Indictment havebeen established beyond reasonable doubt, I therefore affirm theconviction of the appellant on counts 1 and 3 of the Indictment. Theappeal against the said conviction is therefore dismissed.
Having regard to the particular facts of this case, however, I amof the opinion that the sentence imposed on the appellant is some-what excessive. In a case such as this, it would be relevant to takeinto consideration the long period of time has lapsed between thedate of the commission of the offence and the date of punishment- a period of over fifteen years. I have also taken into account thefact that the appellant who held office as public servant would nowbe dismissed from service consequent upon this conviction. I, accord-ingly, set aside the sentence of four years rigorous imprisonment oneach of the counts 1 and 3 imposed on the appellant by the TrialJudge and affirmed by the Court of Appeal and substitute therefora sentence of two years rigorous imprisonment on each of the afore-said counts, which in my view, would meet the ends of justice. Thesentences are to run concurrently.
G. P. S. DE SILVA, CJ. – I agree.
BANDARANAYAKE, J.- I agree.
Appeal dismissed.
Sentence varied.