ABEYSINGHE v. ATTORNEY-GENERAL

047-SLLR-SLLR-1998-1-ABEYSINGHE-v.-ATTORNEY-GENERAL.pdf


CA
Abeysinghe v. Attorney-General
407
ABEYSINGHE
v.ATTORNEY-GENERAL
COURT OF APPEALISMAIL, J.,
JAYASINGHE, J.
CA 207/93
hc Colombo 5064/92FEBRUARY 18, 1998.
Fraudulent and dishonest use of documents used to support an application underArticle 126 of the Constitution – S. 459 and S. 457 Penal Code – Applicationwithdrawn – Indicted.
Five documents were tendered as being genuine documents to be used in supportof an application under Article 126. The petitioners were permitted to withdrawthe application, but the Supreme Court observed that most of these documentsare fabrications, which have been produced to officers in the Education Departmentand in the proceedings before the Supreme Court. The accused-appellant there-after was indicted under s. 457 and 459 Penal Code and found guilty by theHigh Court.
Held:
The accused-appellant who was not residing at the address furnished byhim at 5th Lane, Kollupitiya, fraudulently attempted to show that he hadresided there continuously by having false documents prepared and sub-mitted along with his application for the admission of his son to RoyalCollege. He had intended thereby to obtain a residence qualification forhis son to qualify for admission to 1st year class. Having failed in thisattempt the accused-appellant then attempted 3 years later to rely on thesesame documents which he knew to be false to support a F. R. applicationand to obtain an order for the admission of his child to the 3rd year classat Royal College.
The trial judge has upon an evaluation of the evidence at the trial foundthe accused guilty of all charges.
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APPEAL from the judgment of the High Court of Colombo.
R.I. Obeysekera, P.C with Chinthaka Mendis and Dinith Pathiraja for the accused-appellant.
S.Samaranayake, State Counsel for the Attorney-General.
Cur. adv. vult.
March 16, 1998ISMAIL, J.
The five charges contained in the indictment dated 15th January, 1992,against the accused-appellant were in relation to the fraudulent anddishonest use of the following documents:
Deed of Transfer No. 5329.
Monthly statement of the electricity account issued by theCeylon Electricity Board for the month of December, 1981,on A/C No. 27442762.
Insurance Policy No. 31/57761 issued by the InsuranceCorporation of Sri Lanka.
Statement of account for water consumption for the monthof February, 1987, on Account No. 10/02/81842 issued by theWater Resources and Drainage Board.
Bank statement in respect of Account No. 24 issued by theTorrington branch of the Bank of Ceylon.
The aforesaid documents were tendered as being genuinedocuments to Sanath Gamini Prasanna Jayatilleke, Attorney-at-Law,to be used in support of the application, subsequently filed in theSupreme Court under Article 126 of the Constitution bearing S.Capplication No. 26/90, knowing or having reason to believe the sameto be forged documents. They were offences each punishable undersection 459 read with section 457 of the Penal Code.
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Abeysinghe v. Attorney-General (Ismail, J.)
409
The documents referred to above were all issued in the name ofthe accused-appellant as K. T. N. De A. Abeysinghe. His addresswas given as No. 26/B, 5th Lane, Kollupitiya, Colombo 3.
The accused-appellant who is the Chief Quality Controller attachedto the Tannery of the Leather Corporation was the 2nd petitioner tothe aforesaid application in the Supreme Court bearing No. 26/90.The action was a sequel to his son being denied admission to enterRoyal College as a student Tn the first year class in 1988. Thepetitioners sought, inter-alia, a determination that there has been aninfringement and violation of their fundamental rights. The wife of theaccused-appellant was the 3rd petitioner and their minor son was the1st petitioner. The undated petition filed in the aforesaid applicationappears to have been accepted in the Registry of the Supreme Courton 3.7.90. The proxy has been filed by Prasantha de Silva, Attomey-at Law. The petition was supported by an affidavit of the accused-appellant affirmed on 3.7.90 at Colombo before P. Y. Fernando, JPof No. 7, Seevali Road, Mt. Lavinia. The averments in the petitionwere also supported by an affidavit dated 2.7.90 of his wife, the 3rdpetitioner, affirmed before Don Henry, JP. She was then the VicePresident of the Pasdun-Rata College of Education in Kalutara atwhich a course is conducted for students to obtain a Diploma inEducation.
The petitioners claimed to have been in continuous residence atpremises bearing No. 26/B, 5th Lane, Kollupitiya, Colombo 3, since2nd May, 1981. It was situated about a quarter mile away from theentrance to Royal College. It appears that had the petitioners provedthat they were continuously resident at this address for the stipulatedperiod the child would definitely have had the necessary residencequalification to be admitted as a student to Royal College.
It appears from the averments in the petition that the accused-appellant had submitted an application dated 24th May, 1987, foradmission of his son, the 1st petitioner, to the 1st year class in 1988at Royal College. He was expected to furnish proof that he had beenin continuous residence at the address furnished by him at 5th Lane,Kollupitiya, from 1st January, 1985 or earlier. The petitioners wererequired to attend an interview before a Board at which the documents
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pertaining to and in proof of his residence were examined. The 1stpetitioner was then selected for admission. His name appeared in thelist dated 31st August, 1987 of students who were admitted to RoyalCollege. He was the fourth on the list in category A. However, thepetitioners were later informed that the selection of the 1st petitioneras a student for admission had been cancelled by an order of theRegional Director of Education and they were also informed that theywere entitled to submit an appeal against the said decision. Havinglodged an appeal forthwith, the accused-appellant met the RegionalDirector of Education who informed him that two of his officials whovisited the premises in question had met one A. A. Ariyatilleke whoinformed them that no persons with the name Abeysinghe lived inthose premises. The accused-appellant then informed the RegionalDirector that the petitioners lived in premises bearing No. 26/B andnot at premises bearing No. 26/8 and that his officials had misreadthe assessment number furnished by him. The petitioners were thensummoned before an Appeal Board on 23rd December, 1987 and thedocuments produced by the petitioners in proof of their residence wereagain examined by the Board. However, the Principal finally informedthe petitioners that he had been instructed by Director of Educationto inform them that the 1st petitioner has not been selected foradmission to Royal College.
Subsequent attempts by the parents to admit the 1st petitioner toRoyal College had failed and at the time of the filing of the aforesaidFundamental Rights application in the Supreme Court in July, 1990,the 1 st petitioner was 7 years and 9 months old and it was contendedthat the child should be in the third year class in school. The accused-appellant pleaded in his affidavit filed in support of his application thathis sole object was to ensure that his child gets the best educationavailable "in the proper manner without recourse to horse deals,political interference, bribery, etc". He averred in paragraph 2 of hisaffidavit that he has been resident at the premises bearing No. 26/B, 5th Lane, Kollupitiya, from 2nd May, 1981.
The accused-appellant filed by way of reply a further affidavitprepared in May, 1991, in the aforesaid application. He submittedannexed to it a cerficate from the postal authorities dated 23.7.87 tothe effect that letters have been delivered to him at this address from
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Abeysinghe v. Attorney-General (Ismail, J.)
411
May, 1981. He further explained that premises No. 26, 5th Lane,Kollupitiya is "a large palatial house (Walauwe) with numerous outhouses'1 and that its owner had sold 10 of them as distinct portions.He also stated that A. A. Piyatillake had obtained a separate assess-ment for premises No. 26/8 and in paragraph 9 of the said affidavit,the accused-appellant maintained that members of the Board hadvisited the house in which Piyatilleke resides which is No. 26/8 andnot 26/B in which he resided and that this was the cause for thereasons set out in detail in his petition supported by affidavits anddocuments he sought a declaration from the Supreme Court that therehas been an infringement and a violation of his fundamental rights.He also claimed damages and prayed for an order that the 1stpetitioner be admitted to the 3rd year class at Royal College.
The application S.C No. 26/90 appears to have been taken upfor hearing in the Supreme Court on 18.6.1991. Subsequently Mr.Sanath Jayatilleke who appeared as Counsel for the petitioners ten-dered a motion dated 6th September, 1991, to the Supreme Courtannexing to it an affidavit from the accused-appellant dated 5thAugust, 1991. The counsel for the petitioners moved to withdrawthe aforesaid application and he tendered an apology to Court forthe “obvious inconvenience to the court, its staff, the respondents andthe counsel". The accused-appellant explained in this affidavit (P10)that he had decided to have his child educated at Royal College andhe had set out in paragraphs 7 to 11 & 16 as reproduced belowthe steps that he took to achieve his purpose.
“7. I moved around Royal College and gathered that the easiestway was through a Grama Sevaka who made all necessaryarrangements for this purpose.
Accordingly, I attended the office of the said Grama Sevakaat Lauries Road, Bambalapitiya and explained my plight. Hedemanded a large sum of money. . . As I was a corporationservant he came down to Rs. 20,000/-. A few days later Ipaid him an advance of Rs. 12,000/-.
He inquired from whether I had an "address" in the area andwhen I confessed that I had none he took me to Piyatillake
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referred to in my original papers, introduced me to him andrequested him to give me any letters that would arrive at hisresidence.
Thereafter he gave me the relevant documents in instalmentsand in the process collected the sum due to him in instalments.
For the purpose of the application to Royal College, he gaveme a certificate of residence which he signed in my presence.
16. I tender an unqualified apology to this Court for placingbefore this Court the documents referred to".
Clearly then, the accused-appellant who was not residing atthe address furnished by him at 5th Lane, Kollupitiya, fraudulentlyattempted to show that he had resided there continuously by havingfalse documents prepared and submitted along with his applicationfor the admission of his son to Royal College. He had intended therebyto obtain a residence qualification for his son to qualify for admissionto the first year class. Having failed in his attempt to get admissionfor his son by tendering these documents, the accused-appellant hasthen attempted three years later to rely on the same documents whichhe knew to be false to support a fundamental rights application inthe Supreme Court and to obtain an order for the admission of hischild to the third year class at Royal College.
The circumstances in which the application No. 26/90 came to bewithdrawn by the petitioners have been set out by the Supreme Courtin its order dated 9.9.91.
"Mr. Jayatillake moves to withdraw this application for the reasonsset out in his affidavit dated 5th August, 1991.
When this application was taken up for hearing on 18th June, 1991;the Court noticed several suspicious features in regard to theseveral documents produced by the petitioner in proof of hisresidence and other matters in connection with the application forthe admission of his child to Royal College. After consulting hisclient Mr. Jayatillake indicated that his client wished to proceed
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Abeysinghe v. Attorney-General (Ismail, J.)
413
with the application. This Court accordingly directed several publicofficers to be present in Court to give evidence in regard to thegenuineness of various documents tendered with the petition. Someof these witnesses are present in Court today. However in hisaffidavit dated 5th August, 1991, tendered on 6th September, 1991,the 2nd petitioner, the father of the child has stated that he paida sum of Rs. 12,000/- as an advance to the Grama Sevaka atLauries Road, Bambalapitiya and that this Grama Sevaka producedmany of these documents whose genuineness is in question.According to him, the Grama Sevaka introduced the 2nd petitionerto one Piyatillake to provide an ’address' within the two kilometres' limit. It would therefore appear that the 2nd petitioner admits thatmost of these documents are fabrications, which have beenproduced to officers of the Education Department and in theseproceedings in this Court. Serious offences under the Penal Codeand other laws appear to have been committed. . ."
The petitioners were finally permitted to withdraw the SC applicationNo. 26/90. Thereafter the accused-appellant was by an indictmentdated 15.1.1992 charged with commiting the offences referred toabove and was tried before the High Court sitting in Colombo. Thetrial commenced on 11.5.92. The prosecution called several witnessesto prove the charges set out in the indictment. Despite the avermentsin his affidavit filed in the Supreme Court offering an apology fortendering admittedly false documents in support of his claim toresidence at this false address, the accused-appellant contested thecase presented by the prosecution. The Registrar of the SupremeCourt, Mr. A. L. Bandula Kumara Atapattu, gave evidence andproduced the relevant documents filed in the said Supreme CourtApplication No. 26/90. B. G. Endoris, JP, before whom the affidavit(P10) of the accused-appellant was signed and which was filed inthe Supreme Court for the purpose of withdrawing the aforesaidapplication also gave evidence. The Attorney-at-Law who filed theproxy of the petitioners in the said application in the Supreme Courtand the counsel who appeared for the petitioners including the accused-appellant were also witnesses.
The Additional Registrar of Lands Mr. Kalatuwage Wijeratne statedthat the deed of transfer No. 5329 said to have been attested byone D. Athahir, Attorney-at-Law and Notary Public, has not been even
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tendered for registration at the Land Registry. According to this deedit was sought to establish that the premises No. 26/B, 5th Lane,Kollupitiya, containing in extent 11 perches has been purchased bythe accused-appellant on 2.5.1981 for a consideration of Rs. 800,000from one K. D. Perera of No. 223, Deans Road, Maradana. Similarly,the prosecution led the evidence of an accountant from the CeylonElectricity Board and the evidence of officers from the National WaterSupply and Drainage Board, the Insurance Corporation, and theTorrington Branch of the Bank of Ceylon to prove that the monthlystatements and the Insurance policy referred to in the charges werefalse documents. The case for the prosecution was finally concludedon 24.11.92 leading in evidence the documents marked P1 to P11.The accused-appellant made a detailed dock statement on 1.12.92.It had no bearing on the charges against him and it did not affectthe case for the prosecution. He repeatedly claimed that an injusticehad been caused to him by denying his child's admission to this schoolfor a period of three and half years. The trial judge has upon anevaluation of the evidence at the trial and for the reasons set outin her judgment dated 18.1.93 found the accused guilty of all thecharges in the indictment.
The accused was sentenced to a term of 2 years' rigorousimprisonment on each count and the said term of imprisonment wasordered to run concurrently.
At the hearing of this appeal learned counsel for the accused-appellant did not seek to challenge the conviction. We therefore affirmthe conviction of the accused-appellant on each of the charges.
Learned counsel pleaded in mitigation of sentence and drew theattention of Court to the several circumstances that led to the accused-appellant being ultimately found guilty of the charges against him. Wehave given our most anxious consideration to the submissions ofcounsel. Having taken into consideration alt the circumstances of thiscase we see no reason to interfere with the sentence.
The conviction and sentence are therefore affirmed.JAYASINGHE, J. – I agree.
Appeal dismissed.