D. W. WANIGASEKERA, Appellant and THE REPUBLIC OF SRI LANKA, Respondent

029-NLR-NLR-V-79-1-D.-W.-WANIGASEKERA-Appellant-and-THE-REPUBLIC-OF-SRI-LANKA-Respondent.pdf


Wanigasekera v. Republic of Sri Lanka
241
Present: Wimalaratne, J., Weeraratne, J* andSharvananda, J.
D. W. WANIGASEKERA, Appellantand
THE REPUBLIC OF SRI LANKA, RespondentS. C. 65/75—D.C. Colombo 246/B
Bribery Act, sections 22 and 23A—Person who can be deemed to haveacquired property by bribery—Is it incumbent on the prosecutionto prove that property was acquired as a result of bribery—Extentof burden of proof cast on defence of rebutting the presumptionof bribery—Is section 26A retrospective ?—Imposition of penaltyunder section 26—When permissible ?
Interpretation of Statutes—Bribery Act—Amending Law No. 38 of 1974—Retrospective legislation—Applicability of section 26A broughtin by Amending Law—Interpretation Ordinance (Cap. 2), section 6
.
In a prosecution for bribery under section 23A of the BriberyAct the question was whether the accused was in terms of section23A(1) a person who, even if he had acquired property in excess ofhis known income or receipts, can be deemed to have acquired suchproperty by bribery—
Held : That the accused was a person who came within theambit of section 23A(1).
Wimalaratne J.—“ As a Director of the Bank of Ceylon duringthe relevant period he was a member of the governing body of ascheduled institution. Had he accepted a gratification as an induce-ment or reward for any of the purposes set out in section 22 (a) (i)(ii) or (iii), he would be guilty of the offence of bribery undersection 22 (c). In view of his official status, he could also be con-sidered as coming within the ambit of section 20(b) read withsection 20 (a) (vi) as being a person who had he accepted a grati-fication as an inducement or reward for his procuring or furtheringthe securing of any grant, lease or other benefit from the govern-ment, would be guilty of the offence of bribery
In view of the provisions of section 23A(2) that “income doesnot include income from bribery ” it was contended that the ‘ basicfact’, upon the proof of which the presumption created by section23A arises, must be proved by the prosecution, and that in a prosecu-cution under section 23A the ‘ basic fact ’ to be proved was that theaccused acquired property and that such property could riot havebeen acquired with his known income or receipts. Since “ incomedoes not include income from bribery ” the burden was on theprosecution to prove that the property was acquired with incomeor receipts from “ bribery ”, meaning the acceptance of any gratifica-tion in contravention of any of the provisions of Part II of the Act.
Held: (1) That the ‘basic fact’ to be proved was that theaccused acquired property which could not have been acquired withany part of his sources of income or receipts known to the prose-cution after investigation and that the prosecution is not requiredto prove that the acquisitions were made with income or receiptsfrom bribery. An interpretation based on the appellant’s contentionwould defeat the very purpose for which the section was includedin the Bribery Act since section 23A is designed against a personin respect of whom there is no proof of the actual receipt of agratification, but there is presumptive evidence of bribery.
(2) That the presumption created by section 23A may be rebuttedby the accused by proving on a balance of probabilities, that theproperty was acquired otherwise than by bribery.
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WIMALARATNE, J.—Wanigasekcra v. Republic of Sri Lanka
Held further : That the amending section 26A is retrospective in itsoperation. The penalty contemplated under section 26 however canbe imposed only on persons found guilty of any offence committedby the acceptance of any gratification in contravention of the pro-visions of Part II of the Act, other than the provisions of section23A.
Sharvananda, J.—“ The language of the amending law is plainand can only mean that which it says. Section 6(3) of the Inter-pretation Ordinance does not apply to the present circumstancesas the new Section 26A in the scheme of the Amending Law doesnot repeal any existing written law, but only provides for theimposition of additional penalty. The amending section 26A isclearly retrospective ”.
Cases referred to :
Gunasekera v. The Queen, 70 N.L.R. 45 7.
Swami v. The State, A.I.R. (1960) S.C. 7.
Emd,en v. The State of Uttar Pradesh, A.I.R. 1960 S.C. 548.Dhanavantrai v. State of Maharashtra, A.I.R. 1964 S.C. 575.
R. v. Cc.rr-Eraint, (1943) 2 All E.R. 156 ; (1943) K.B. 607 ; 169 L.T.75 ; 59 T.L.R. 300.
State of Madras v. A. Naidyanatha Iyer, A.I.R. 1958 S.C. 61.
Public Prosecutor v. Yuvaraj, (1970) A.C. 913 ; (1970) 2 WL.R. 226.Miller v. Minister of Pensions, (1947) 2 All E.R. 372 ; 177 LT. 536 ;63 T.L.R. 474.
In re de Mel, 78 N.L.R. 67.
Director of Public Prosecutions v. Lamb, (1941) 2 All E.R. 499 ; (1941)
2 KB. 89 ; 165 L.T. 59 ; 57 T.L.R. 449.
Buckmcin v. Button, (1943) 2 All E.R. 82 ; (1943) 1 K.B. 405 ; 165 L.T.75 ; 59 T L.R. 261.
R. v. Oliver, (1943) 2 All E.R. 800; (1944) KJ3. 68; 170 L.T. 110;60 T.L.R. 82.
R. v. Jackson, (1775) 1 Coiup. 297.
Attorney-General v. R. M. Karunaratne, (S. C. 16/74 D. C. ColomboB/75—SC. Minutes of 17.6.77).
A.PPEAL. from a judgment of the District Court, Colombo.
V. S. A. Pullenayagam, with K. N. Chosky, N. de Alwis, Mrs. S.Moorthy and Mrs. S. Gnanakaran, for the accused-appellant.
Ranjith Abeysuriya, Director of Public Prosecutions, withSarath Silva, Senior State Counsel, and G. L. M. de Silva, StateCounsel, for the Attorney-General.
October 7, 1977. Wim alaratne, J.
Cur. adv. vult.
The accused-appellant was indicted on the following charge : —“That between the 1st day of June, 1970, and 18th day ofMarch, 1974, within the jurisdiction of this Court you didacquire the following property : —
The properties described in Schedule “ A ” annexedhereto being properties which could not have beenacquired with any part of your known income or
WXMALABATJQTE, J.—Wa.nigaae.kera v. Republic of Sri Lanka
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which could not have been any part of your knownreceipts or which could not have been property towhich any part of your known receipts had beenconverted ; and
The money described in Schedule “B” annexed heretobeing money which could not have been part of yourknown income or receipts or which could not havebeen money to which any part of your known incomeor receipts had been converted ;
and such property being deemed by section 23A (1) of the Bri-bery Act to be property acquired by bribery or property to whichyou had converted property acquired by bribery and that youbeing the owner of such property are thereby guilty of an offencepunishable under section 23A (3) of the Bribery Act. ”
Schedule ‘ A ’ describes 7 items of immovable property and4 items of movable property acquired by the accused and valued-at Rs. 309,978.25.
Schedule ‘ B ’ described 10 items of disbursements made by theaccused amounting to Rs. 92,586.00. Thus the total value of pro-perty alleged to have been acquired by the accused during therelevant period is the aggregate of those two sums, amountingto Rs. 402,564.25.
The appellent was appointed a Director or the Bank of Ceylonon 17.06.70. About three lakhs of the property acquired or thedisbursements made has been between 17.06.70 and 30.09.71. Themain acquisitions were “ Sunny Croft ” a house property inNuwara Eliya, on about 3 acres of land, which together withthe furniture had cost Rs. 190,000 ; and “ Saraswathy Farm ” inextent about 2 acres and 3 roods in Talawatugoda, ColomboDistrict, for which a sum of aobut Rs. 112,000 had been paid.During the relevant period the accused had also paid up arrearsof income tax amounting to Rs. 42,000 or so, satisfied two courtdecrees entered against him in favour of the People’s Bank fora sum of Rs. 17,500 and repaid a loan of about Rs. 9,000 tothe State Mortgage Bank.
The Bribery Commissioner acting in terms of section 23A (4)called upon the accused to show cause why he should not beprosecuted for an offence under section 23A. As the cause shownby the accused was, in the opinion the Bribery Commissioner,unsatisfactory, these proceedings were instituted.
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W MALARATNE, J.—Wanigasekera v. Republic of Sri Lanka
Section. 23A of the Bribery Act reads as follows: —
“ (1) Where a person has or had acquired any propertyon or after March 1, 1954, and such property—
being money, cannot be or could not have been—
part of his known income or receipts, or
money to which any part of his known receipts
has or had been converted; or
being property other than money, cannot be or could
not have been—
property acquired with any part of his known,income, or
property which is or was part of his known
receipts, or
property to which any part of his known receipts
has or had been converted,
then, for the purposes of any prosecution under thissection, it shall be deemed, until the contrary is provedby him, that such property is or was property whichhe has or had acquired by bribery or to which he hasor had converted any property acquired by him bybribery.
In subsection (1), “income” does not include incomefrom bribery, and “ receipts ” do not include receipts frombribery. ”
Subsections 3 to 6 need not be reproduced at this stage.
The appellant sought to rebut the presumption of bribery byestablishing that the acquisition of property and disbursementsreferred to in the indictment were made possible mainly as aresult of the following sources of income and receipts, namely : —
Outstanding balance of cash in hand on Rs.
4.70. …..99,545.98
Money borrowed from four specified sources
during this period…. 101,000.00
Income from rents, Director’s fees and wife’s
pension……128,866.00
Income from the business of Wanigasekera
and Co…….209,989.00
Loan recovered….3,000.00
Total .. 542,400.98
WXMALAI1ATNE, J.—Wanigasekera v. Republic of Sri Lanka
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The accused conceded that during the relevant period his livingexpenses as well as extraordinary expenditure, such as for travelabroad on two occasions, amounted to Us. 113,170 leaving abalance of Rs. 429.230.98, which he said was his “ known incomeand receipts ” during the relevant period and which was quitesufficient to make the acquisitions and disbursements amountingto Rs. 402,564.25.
The learned District Judge has held that—
that the accused did not have a cash balance of Rs.
99,548.98 or any sum whatsoever on 1.4.70 ;
that the amount of Rs. 101,000 claimed by the accused
as loans from four specified sources were not loans,but monies received by him for a sinister purpose ;
that the sum of Rs. 128,866 claimed as income from
rents, Director’s fees and wife’s pensions was a genuineclaim;
that the income from Wanigasekera and Co. was onlyRs. 33,061 and ;
that the accused received a sum of Rs. 3,000 in repayment
of a loan.
The total income and receipts of the accused during the relevantperiod was therefore only Rs. 164,927. After deducting the sumof Rs. 113,170 which constituted the living and extraordinaryexpenditure incurred by the accused the balance sum ofRs. 51,757 constituted his “ known income and receipts TheDistrict Judge has therefore concluded that the further sum ofRs. 351,407.25 utilised by the accused to make the acquisitions anddisbursements could not or cannot have been part of his incomeor receipts”, and was therefore acquired by him by bribery. Hehas accordingly convicted t ie accused and sentenced him to 7years rigorous imprisonment, to a fine of Rs. 5,000, to anadditional fine of Rs. 354,375.51 (under section 26 A of the Act),and to a penalty of Rs. 354,375.51 (under section 26 of the Act).From this conviction and sentence the accused has appealed.
As section 23 A is a departure from the established principlesof criminal jurisprudence relating to the burden of proof, and asit is contained in an Act the object of which is to provide forthe prevention and punishment of Bribery, it is necessary tohave a clear analysis of the section.
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WIMALARATNE, J.—Wanigctsekera v. Republic of Sri Lanka,
The comprehensive legal submission made by learned counselon the scope of this section has revealed that the following ques-tions arise for determination : —
whether the accused is a person who, even if he
acquired property in excess of his known income, canbe deemed to have acquired such property bybribery ? ;
in view of subsection (2) that “ income does not inlcude
income from bribery ”, whether it is incumbent on theprosecution to prove the fact that property wasacquired as a result of bribery ? ; and
the extent of the burden of proof cast upon the defence
of rebutting the presumption of bribery.
Not every person who has acquired property which could nothave been acquired from his known income or receipts will bedeemed to have acquired such property by bribery. A Bench offive judges of this Court has held, in the case of Attorney-Generalv. R. M. Karunaratne, (S.C. 16/74, D.C. Colombo B/75—S.C.Minutes of 17.6.77), that only certain categories of persons willcome within the ambit of section 23A. In the course of hisjudgment Samerawickrema, J. said, “ I would give the term‘ any person ’ in section 23 A the restricted meaning of a personwhose receipt of gratification or money will render him guiltyof bribery under the relevant provisions (of the Bribery Act)
He categorised those persons as,
‘officials’ such as judicial and public officers, members
of the House of Representatives and of Local Autho-rities, c ad members of scheduled instituions; theywould be caught up under sections 14, 15, 16, 17, 19, 21and 22;
any person who accepts any gratification or reward for
his withdrawing a tender made by him for a contractwith the Government under section 18 ;
any person who accepts a gratification as an inducement
or reward for his doing any of the acts set out insection 20 (a) (i) to (vii) ; in regard to this thirdcategory too, Samerawickrema, J. would give arestricted meaning to include only such persons whohave been “ in the habit of doing or has done ” anyact or acts set out in the subsection in respect of thedoing of which, had he accepted a gratification orreward, he would be guilty of bribery under section 20(b).
WlilALARATNE, J.—W anigasekera v. Eepublic of Sri Lanka
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I am in respectful agreement with the reasoning and con-clusions of Samerawickrema, J. Applying this test to thepresent case it is quite clear that the accused is a person whocomes within the ambit of section 23A. As a Director of theBank or Ceylon during tue relevant period he was a member ofthe governing body of a scheduled institution. Had he accepted agratification as an inducement or reward for any of thepurposes set out in section 22 (a) (i), (ii) or (i-i) he would beguilty of the offence of bribery under section 22 (c). In viewof his official status he could also be considered as comingwithin the ambit of section 20 (b) read with section 20 (o) (vi)as being a person who, had he accepted a gratification as aninducement or reward for his procuring or furthering thesecuring of any grant, lease or other benefit from the Govern-ment would be guilty of the offence of bribery. I would followthe view expressed by H. N. G. Fernando, C.J. in Gunesekerav. The Queen, 70 N.L.R. 457, and give the words ‘ other benefit ’in this subsection a wide meaning.
Mr. Pullenayagam’s main submission has been that where apresumption arises at common law or is created by statute thebasic fact upon the proof of which the presumed fact arises,must be proved by the prosecution. He refers to the definitionof a presumption as denoting a conclusion that a fact (con-veniently called the ‘ presumed fact ’) exists which must bedrawn if some other fact (conveniently called the ‘ basic fact ’)is proved or admitted. Cross on Evidence (3rd Ed.), p 101. Itis only on proof of the basic fact that the burden shifts to thedefence to rebut the presumed fact ; and in criminal proceed-ings the prosecution is obliged to prove the basic fact beyondreasonable doubt. According to his analysis of section 23A thebasic fact that has to be proved is that the accused acquiredproperty and that the property acquired cannot be or could nothave been acquired with his known income or receipts. As,according to the same section “ income does not include incomefrom bribery ” the burden on the prosecution is to prove thatthe property was acquired with income or receipts from“ bribery ”, meaning the acceptance of any gratification in con-travention of any of the provisions of Part II of the Act.
Mr. Sarath Silva, Senior State Counsel, who argued theappeal for the respondent, contended that the words "knownincome or receipts ” have a special meaning in the context ofthe Bribery Act. The words income and receipts have beengiven a negative definition, as not including income from bri-bery and receipts from bribery. Bribery means the acceptance
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of any gratification in contravention of Part II of the Act, andtherefore “ known income or receipts ” means income or receiptsnot being proceeds obtained by a contravention of Part II.Accordingly “ known income or receipts ” means income orreceipts known to the prosecution ajter investigation. Hesupported his argument by reference to a decision of the IndianSupreme Court where this interpretation has been given tosimilar words contained in section 5 (3) of the Prevention ofCorruption Act, No. 2 of 1947. Section 5 (1) of the Act defines theacts that go to constitute the offence of “ criminal misconduct ”which a public servant may commit in the discharge of his duty,whilst section 5 (2) specifies the punishment for such offence.Section 5 (3) reads as follows : —
“ (3) In any trial of an offence punishable under sub-section (2) the fact that the accused person or any otherperson on his behalf is in possesstion, for which the accusedperson cannot satisfactorily account, of pecuniary resourcesor property disproportionate to his known sources of incomemay be proved, and on such proof the Court shall presume,unless the contrary is proved, that the accused person isguilty of criminal misconduct in the discharge of his officialduty and his conviction therefor shall not be invalid byreason only that it is based solely on such presumption. ”
In the case of C. S. D. Swami v. The State (1969) A.I.R.(S.G.) p. 7, dealing with the argument that the prosecution hadnot led evidence to show as to what were the known sourcesof the accused’s income, Sinha, J. said :
“ Now, the expression “ known sources of income ” musthave reference to sources known to the prosecution on athorough investigation of the case. It was not, and it couldnot be, contended that ‘ known sources of income ’ meanssources, known to the accused. The prosecution cannotin the very nature of things, be expected to knowthe affairs of an accused person. Those will be matters‘ specially within the knowledge ’ of the accused, within themeaning of s. 106 of the Evidence Act. ”
Mr. Pullenayagam, whilst conceding the correctness of theposition that “ known income or receipts ” means income orreceipts from sources known to the prosecution after investiga-tion, put forward the argument that when the accused, in replyto a query by the Bribery Commissioner, submitted particularsof his income and receipts, the Bribery Commissioner had anopportunity of verifying the truth of the statements contained
WlMAXiAJrvATXE, J.— Waniyasekera v. Republic of Sri Lanka
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therein ; and if, after investigation he found any hem of incomeor receipts not to be the proceeds of a transaction which it pur-ported to be, then it was for the prosecution to establish thatsuch income or receipts were tSne proceeds of bribery. Heillustrated his submission by reference to the sources of incomeand receipts according to accused’s statement D 22, namely, thecash in hand at the commencement of the relevant period, theloans obtained from specified sources and the income from theaccused’s business during the relevant period. If the prosecu-tion was not satisfied, after investigation, of the genuineness.of those transactions then, in discharging the burden whichrested on it of proving the basic fact, it was incumbent on theprosecution to establish not merely that they were not whatthe purported to be, but also that they were proceeds oftransactions tainted with bribery.
An interpretation of the section based on this submissionwould defeat the very purpose for which the section wasincluded in the Bribery Act. As observed by Samerawickrema,
J.“ to require proof that such an individual has in fact receiveda reward would be to defeat the purpose of section 23A whichis designed against a person in respect of whom there is noproof of the actual receipt of a gratification, but there is pre-sumptive evidence of bribery The same view has been takenby the Supreme Court of India in C. I. Emden v. State ofUttar Pradesh, A.I.R. 1960 S.C. 548. Section 4(1) of the IndianPrevention of Corruption Act, 1947, runs thus :
“Where in any trial of an offence punishable unders. 161 or s. 165 of the Indian Penal Code it is proved thatan accused person has accepted or obtained or has agreedto accept or attempted to obtain, for himself or for anyother person, any gratification (other than legal remunera-tion) or any valuable thing from any person, it shall bepresumed unless the contrary is proved that he acceptedor obtained, or agreed to accept or attempted to obtain, thatgratification or that valuable thing, as the case may be, asa motive or reward such as is mentioned in the said s. 161,or, as the case may be, without consideration or for aconsideration which he knows to be inadequate. ”
It was contended that the use of the word ‘ gratification ’emphasised that the mere receipt of any money does not justifythe raising of a presumption thereunder, and that somethingmore than the mere receipt of money has to be proved. The court,however, observed : “ If the word ‘ gratification ’ is construed to
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WIMALARATNE, J.— Wani-gnsekera v. Republic of Sri Lanka
mean money* paid by way of a bribery then it would be futile orsuperfluous to prescribe for the raising of the presumption.Technically it may no doubt be suggested that the object whichthe statutory presumption serves on this construction is that thecourt may then presume that the money was paid by way of abribe as a motive or reward as required by section 161 of theCode. In our opinion this could not have been the intention ofthe Legislature in prescribing the statutory presumption undersection 4 (1).” The Court further observed:“It cannot be
suggested that the relevant clause in section 4 (1) which dealswith the acceptance of any valuable thing should be interpretedto impose upon the prosecution an obligation to prove not onlythat the valuable thing has been received by the accused but thatit has been received by him without consideration or for aconsideration which he knows to be inadequate. The plainmeaning of this clause undoubtedly required the presumption tobe raised whenever it is shown that the valuable thing has beenreceived by the accused without anything more. If that is thetrue position in respect of the construction of this part of section4(1) it would be unreasonable to hold that the word ‘ gratificat-ion 5 in the same clause imports the necessity to prove not onlythe payment of money but the incriminating character of thesaid payment The view was affirmed in the subsequent case ofDhanvantrai v. State of Maharashtra, A.I.R. 1964 S.C. 575.
1 am therefore of the view that the 1 basic fact ’ required to beproved in a prosecution under section 23A of the Bribery Act isthat the accused acquired property which cannot or could nothave been acquired with any part of his sources of income orreceipts known to the prosecution after investigation; theprosecution is not required to prove that the acquisitions weremade with income or receipts from bribery.
The third submission made on behalf of the appellant relatesto the extent of the burden of proof which rests on an accusedperson to rebut the presumption. “ Whenever reliance is placedon a rebuttable presumption two legal rules are involved. Firstthere is what may be termed the rule of presumption accordingto which the presumed fact must be found to exist until evidencetending to disprove it is adduced, and secondly there is the rulewhich prescribes the amount of rebutting evidence required ”.Cross on Evidence, p. 104. Mr. Choksy’s complaint is that thelearned District Judge has not considered at all the rules whichprescribe the quantum of evidence required to rebut thepresumption. This rule has been set down in numerous cases, ofwhich I may refer to a few. By section 2 of the English Preventionof Corruption Act, 1916, a consideration given to a person in the
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employment of a Government Department by the agent of aperson holding a contract from a Government Departmentis to be deemed to be given corruptly unless thecontrary is proved. In construing this section in R v. Carr-Braint(1943) 2 A.E.R. 156, Humphreys, J. stated the judgment of thecourt in the following terms:—“In any case where, either bystatute or at common law, some matter is presumed ‘ unless thecontrary is proved’ the jury should be directed that it is forthem to decide whether the contrary is proved, that the burdenof proof required is less than that required at the hands of theprosecution in proving a case beyond reasonable doubt, and thatthe burden may be discharged by evidence satisfying the jury ofthe probability of that which the accused is called upon toestablish ” (at 158).
The Supreme Court of India has taken the view that apresumption of law cannot be successfully rebutted by merelyraising a probability, however reasonable, that the actual factis the reverse of the fact which is presumed. Something more thana reasonable probability is required for rebutting a presumptionof law. The bare word of the accused is not sufficient and it isnecessary for him to show that his explanation is so probable thata prudent man ought, in the circumstances, to have accepted it.This view is based on the difference between a presumptionarising under section 114 of the Evidence Act and the presumptionarising under section 4 of the Prevention of Corruption Act. Inthe former case it is not obligatory upon the court to draw apresumption as to the existence of one fact from the proof ofanother fact, whereas in the latter case, the court has noalternative but to draw t'ne presumption. See State of Madras v.A. Naidyavathci Iyer, A.I.Pi. 1958 S.C. 61 ; and also Dhanavantrai’sCase (above).
In an appeal from the Federal Court of Malayasia PublicProsecutor v. Yuvaraj, 1970 A.C. 913, the Privy Council regardedthe Indian decisions as imposing too onerous a burden of proofon the accused, and held that where an enactment creating anoffence expressly provided that, if other facts were proved, aparticular fact, the existence of which was a necessary factualingredient of the offence should be presumed or deemed to existunless the contrary is proved “ the burden of rebutting suchpresumption is discharged if the court considers that on thebalance of probabilities the gratification was not paid or givenand received corruptly as an inducement or reward as mentionedin section 3 or 4 of the Prevention of Corruption Act, 1961,(Malaysia) ”.
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WTWAT.ARATOR. J.— Wanigasekcra r. Republic of Sri Lanka
The standard of proof as laid down in Carr Briant and Yuvaraj(above) appear to be more consonant with our criminaljurisprudence than the standard required under the Indiandecisions. Exactly the same view was expressed, although obiter,by Samerawickrema, J. in Karunaratne’s case (above) when hesaid : “ What a person (accused) has to prove is that a propertywas not acquired by bribery or was not property to which hehad converted any property acquired by bribery. The ordinaryand usual method by which a person may prove this is by showingthe source from which he acquired the property and demonstrat-ing that it was not by bribery. As this is a matter in which theonus is on the accused person, it will be sufficient if heestablishes it on a balance of probabilities ”.
Dealing with the degree of cogency which evidence must reachin order that it may discharge the burden in a civil case,Denning, J. said in Miller v. Minister of Pensions (1947) 2 A.E.R.372 at 374: “ That degree is well settled. It must carry areasonable degree of probability, but not so high as is requiredin a criminal case. If the evidence is such that the tribunal cansay:‘ we think it more probable than not the burden is
discharged, but if the probabilities are equal, it is not
If the tribunal is reasonably satisfied, that is, satisfied to theextent that it can say “ we think it more probable than not thatthe accused acquired the property by proceeds other than incomeor receipts from bribery ” then the accused is entitled toan acquittal.
It has been submitted on behalf of the appellant that the learnedJudge’s findings that the appellant’s known income or receiptswas only Rs. 51,757.00 and consequentially that the sum of Rs.354,375.51 should be deemed to be money acquired by briberyhave been reached by refusing to regard several items of incomeand receipts proved by the accused to have been obtained by himby lawful means and from lawful sources. Learned Counselcomplains that the Judge has not only failed to take into conside-ration several documents produced at the trial which containcontemporaneous entries which support the truth of the accused’sexplanations, but has also misdirected himself on conclusions offact reached by him due to failure to consider relevant aspectsof the evidence on those points. It is also submitted that theJudge has erred in placing too heavy a burden on the accused inrebutting the presumption of bribery.
The learned Deputy D.P.P. in addressing the Judge at theconclusion of the evidence submitted that “ in a matter where theaccused has to prove certain matters under section 23A of the
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Bribery Act, the accused need not prove whatever he has toprove beyond reasonable doubt, but it will suffice if he makesit appear to be probable and worthy of acceptence by CourtThe learned Judge, in dealing with the presumption states inhis judgment, “ Quite clearly, this is a well defined and unambi-guous departure from the established principle of criminal juris-prudence that the burden always lies on the prosecution toprove all the ingredients of the offence charged, and that theburden never shifts to the accused to dispute the charge framedagainst him. Secondly, until such time as the accused himselfproves the contrary the statutory presumption created by thisprovision continues to operate. I am more than satisfied on theevidence led in this case that the accused had failed to displacethis statutory presumption by his explanations which 7 have heldto be false and false to his knowledge. In the result the accusedhad failed to satisfy Court that such property was not acquiredby bribery or is not property to which any property acquiredby bribery had been converted. ”
In this background it is necessary for us to examine the docu-mentary evidence which the appellant alleged has been ignoredby the learned Judge, in order to determine whether there isproof on a balance of probability that the items of evidence thathave been struck out by the Judge ought not to have beenstruck out. But in such examination we cannot ignore the Judge’sfinding on several matters that transpired in evidence whichimpeached the credibility of the accused. He has, in the courseof the judgment, dealt with eleven sudh matters, of which wemay refer to just a few in order to base our own judgment. Theconsideration for the purchase of the N’Eliya property was paidby the accused to the vendor W. H. de Silva by two drafts ofthe Mercantile Bank for Its. 119,000 dated 10.9.71. He said that hehad with him the necessary cash to obtain the drafts. He hadobtained a loan of Rs. 31,000 from the Maldivian National Trad-ing Corporation, a further loan of Rs. 20,000 from Collettes, andRs. 50,000 from an overdraft account at the same bank. But ittranspired that tfae “ loan ” of Rs. 31,000 was received by himwell after the date of N’Eliya transaction, and that he had reach-ed the limit of overdraft facilities well before that date, so thathe could not have drawn Rs. 50,000 on that account. He thenmade an attempt to show that he may have deposited cash withthe bank, and that he may have brought the cash from home, buthis statement of accounts completely discredited him withregard to the availability of so much cash.
The only income from his business of Wanigasekera and Co.for the year ending 31.3.74 was a sum of Rs. 112,500 which accord-ing to him was paid to him in May 1973 by Mr. G. M. Topen,
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WJMAXiAHATXE, J.— Wanigasekera v. Republic of Sri Lanka
General Manager of the firm of Harrison and Crossfield andwhich constituted an “ advisory fee ” for financial advice givenby him to float firm in early 1972. The financial advice was withregard to the capital structure of that firm, and the advice wasgiven not in writting, but at a business discussion he had withTopen. The accused admitted that he did not care to ascertainhow this figure of Rs. 112,500 was arrived at even when Topentelephoned him on 18.5.73 to give him the glad news that theyhad decided to pay him that sum in connection with the saleof their Prince Street building to the Central Bank. That buildinghad been sold on 26.3.73 for a consideration of Rs. 4,500,000 andRs. 112,500 represented 2&% of the sale price. The accused atfirst denied any knowledge of the sale price of that building, butwas later constrained to admit that Topen mentioned a figure offour million rupees or thereabouts. The learned Judge’s remarksthat “ attempts made by the accused in the early part of hisevidence in cross examination to pretend not to know the natureof this payment were designed to give an impression to courtthat his part in the entire transaction was that of a mere generalfinancial adviser ”, and that “ the answers of the accused weregiven in a pernicious but futile effort to try and conceal or ref-rain from admitting the true figure as it would then have beenclear that what he got was exactly 2 J % of the sale price ”were, in my view, perfectly justified.
The accused was admittedly the tenant of premises 37, PedrisRoad, Colombo, from 1961. But in a document which was aproposal form for obtaining a loan of Rs. 20,000 from CavesFinance and Lands Sales Ltd. he had described himself as theowner of this property and that he had been resident thereinsince his purchase. The Judge had no doubt this was a deliberateand calculated attempt on the part of the accused to representhimself to be owner, when in fact he was not. Equally falsewas his assertion that the rent of Rs. 600 per month charged bythe landlord had been reduced to Rs. 150 per month after theenactment of the new Rent Law in 1972 ; several cheques inpayment of rent at Rs. 600 per month for the years after 1972produced by the prosecution conclusively proved the falsity ofhis assertion. The Judge’s belief that the accused claimed tobe the owner of the property in order to represent himself tobe a man of means and that he claimed to pay a lower rent inorder to show that he had larger savings than when he paid Rs.600 per month, appear to me to be based on cogent evidencecoupled with false explanations on the part of the accused.
It is clear, therefore, that the trial Judge had good reason todisbelieve the accused in respect of several items of evidencegiven by him. There is no law governing the question whether
WOIAX.ARATNE, J.—Watiigasekera v. Republic of Sri Lanka
255
the evidence of a witness should be believed or Should not bebelieved. For weighing evidence and drawing inferences fromsuch evidence there can be no canon. A trial Judge in assessingthe evidence of a witness on relevant issues will no doubt beinfluenced by the view he has formed of the witness’s evidenceon other issues. An Appeal Court will be extremely slow todisturb the finding of a trial Judge under such circumstances.But as a complaint has been made that the Judge has not con-sidered several items of documentary evidence it is necessaryto see whether that evidence would have helped the accused inhis attempt to rebut the presumption of bribery by adducingproof on a balance of probability. The three items struck out bythe Judge are in respect of,
cash in hand at the commencement of the relevant
period ;
loans obtained by the accused during the relevant
period ; and
income derived from the business known as Waniga-
sekera and Co.
(a) Cash in hand at the commencement of the relevant period :
The accused claimed that his opening balance on 1.6.70 was asum of Rs. 99,545.98. This was the amount he had claimed inD 22 (b) which was a statement of accounts setting out his incomeand expenditure commencing from 1.4.66 and which statement hehad sent to the Bribery Commissioner in reply to the BriberyCommissioner’s inquiry by his letter D 21. In an affidavit sentalong with D 22 (b) the accused stated that the transactionsreferred to in D 21 were financed out of “ my income, repaymentof loans received by me and monies borrowed by me from banks,finance institutes and reputed business houses with which Ihave business dealings and connections In the course of hisevidence it transpired that beside the expenditure disclosed inD 22(b) the accused had incurred further additional expendi-ture amounting to Rs. 158,550.00 during the period between
4.66 and 1.4.70 mainly in the construction of 4 annexes to hishouse at Mirihana and for additions and improvements to hisresiding house at Pedris Road. He had also made two trips abroadand advanced a sum of money to a furnishing establishment inKandy which sum he did not get back. The prosecution contend-ed that had those items of expenditure been reflected in D22 (b)there would have been no opening balance on 1.6.70 ; on thecontrary there would have been a debit balance of about Rs.60,000. The accused tried to explain this omission. He said thatD 21 only required him to account for the acquisitions referred
2o6
WIMALARATXE, J-Wanigaackera v. Jlepublic of Sri Lanka
to in that letter, which were the identical acquisitions and dis-bursements detailed in the indictment. He said further that asum of about 2 lakhs of rupees was available to him to financethe additional expenditure and made up as follows : — the refundof an advance of one lakh of rupees on the retraction of an agree-ment with the firm of Chettinad to purchase a property, therepayment of a loan of Rs. 60,000 granted to one Saturninus,and the repayment of a loan of Rs. 25,000 given to one Muttiah.Learned counsels complaint is that the learned Judge has notreferred to these transactions which were supported by documen-tary evidence, and much time was taken by us in examining thedocuments relating to these transactions.
The loan of Rs. 60,000 to Saturninus was by mortgage bondD1 dated 29.5.67. The bond had been discharged on 3.10.67, theamount of the principal and interests being Rs. 62,098.64. Boththese amounts have been reflected in D22 (b) and have beentaken into account in striking the balance on 1.6.70. The loanof Rs. 25,000 to Muttiah was by bond No. 3479 dated 30.1.68.Refunds amounting of Rs. 19,000 are also clearly reflected inD 22 (b) and have been accounted for in striking the cashbalance. There could therefore be no complaint about thesetransactions.
The evidence of the accused was that on 31.3.65 he and oneMrs. Wilson deposited three lakhs of rupees on an agreementfor the purchase of a property for six lakhs of rupees situatedin Hyde Park Corner and owned by Chettinad Corporation. Hiscontribution was one lakh. That agreement was renewed inOctober 1965 valid until 31.12.65. The Chettinad Corporationwent back on the agreement, whereupon he got back his onelakh of rupees several months later. That one lakh was availablewith him to incur the additional expenditure not shown in D22(b). The learned Judge has not referred to this transaction inhis judgment. The true position appears to be that on the agree-ment D33 of 31.3.65 only one lakh of rupees was deposited by thejoint purchasers on condition that if they failed to complete thepurchase on or before 30.6.65, the deposit was to be forfeited. Thesecond agreement D 34 of 1.10.65 recited the fact that the pur-chasers had failed to complete the purchase in terms of theprevious agreement, that it was accordingly cancelled and dis-charged, and that neither party shall have any claim whatsoeveragainst the other in respect of that agreement. The purchaseprice was increased to Rs. 775,000 and the deposit to two lakhs,and the purchasers agreed to complete the transaction on or
WIMALARATNE, J.—Vc1niga3ekera v. Republic of Sri Lanka
257
before 31.12.65. The deposit of two lakhs included I$s. 50,000 paidby Mrs. Wilson on the first agreement. No consideration was paidin the presence of Mr. H. W. J. Muthukumara, the Notary whoattested the second agreement. In the event of the purchasersfailing to complete the transaction on or before 31.12.65 Rs.150,000 of the deposit was to be forfeited to the vendor and onlyRs. 50,000 was to be refunded to the purchasers. Apart fromthe bare assertion of the appellant that the “ sellers backed out ”and that he got a refund of one lakh of rupees, no other evidence,oral or documentary, supports that position. Mr. John Wilson, theNotary who attested the first agreement, did not testify to anypayment of deposit or refund by Chettinads. Neither Chettinadsnor Mrs. Wilson have been called to give evidence aboutany refund. What is more, this amount of one lakh should havebeen shown in D22 (b) because according to the evidence of theaccused he got back the advance several months after 31.12.65and D22 (b) commences from 1.4.66. There is therefore no proof,on a balance of probability, that the accused had in his handsthe further sum of one lakh of rupees during the period 1.4.66to 31. 3. 70 in order, to enable him to meet the additional expen-diture incurred in putting up extensions to his residences atMirihana and Pedris Road during this period. The only cashhe had in hand on 1.4.66 was a sum of Rs. 60,000 as shown in D22(b) and which was utilised for expenditure other than theexpenditure in making extensions to residences.
In his wealth tax return P 16 for the year of assessment1971-72 sent on 24.04.72 the accused had disclosed as cash inhand on 31.03.70 the sum of Rs. 75,000. Counsel’s complaint isthat the trial Judge has not given due weight to this disclosurein a declaration made long before the Bribery Department com-menced investigations, particularly as it tends to corroborateD 22 (b) with regard to the balance in hand of Rs. 83,165 on31.03.70. The learned Judge has considered this evidence in hisjudgment, but has not been impressed with it because of thediscrepancy in the capital levy return P 17 where the cash inhand on 31.03.70 was disclosed as only Rs. 500. The explanationof the accused for this discrepency was that P 17 was sent on29.04.74, long after P 16 was sent ; but that was an explanationhardly worth consideration.
Even if the accused’s evidence be accepted that he had a cashbalance of Rs. 60,000 on 01.04.66, that amount and more wouldnecessarily have been utilised by him to meet the extraordinaryexpenditure of Rs. 158,550 which he spent during the relevantperiod, and which has not been shown in D 22 (b). There wasaccordingly no proof on a balance of probability that any sum
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WDLALARATNE, J. Wanigasekera v. Republic of Sri Lanka
of money was available to him at the commencement of therelevant period which he could have utilised to make theacquisition referred to in the indictment. The Judge’s findingthat his cash in hand on 01.06.70 was nil is therefore supportedby the evidence.
(b) Loans obtained by the accused during the relevantperiod:
The accused sought to prove that he had borrowed a sum ofRs. 101,000 as loans from four sources, namely—
Rs.
Collettes Finance Ltd., Rs. 20,000, of which he
repaid Rs. 10,000 leaving a balance of. .10,000
Caves Finance and Land Sales Ltd.,..20,000
Malship (Ceylon) Ltd., Rs. 10,000 of which he
repaid Rs. 5,000 leaving a balance of..5,000
The Maldivian National Trading Corporation . .66,000
The accused claimed that on 02.09.71 he entered into ahire purchase agreement with Collettes Finance Ltd.,and obtained Rs. 20,000 on the security of his car, a4 Sri Simca Arianne. The Judge has held that thiswas not a genuine hire purchase transaction, but abribe in the guise of a loan ; that it was an extraordi-nary favour and accommodation granted to this Direc-tor of the Bank of Ceylon who was admittedly of afriendly disposition towards Collettes which had bythen taken the Bank of Ceylon before the DistrictCourt of Colombo. The Judges finding is based uponan allegation made by the prosecution that a copy ofthe Bank”s manual of operations, which had beenborrowed by the accused from the Secretary of thebank had not been returned to the bank, but had beenmade available to Collettes in their pending litigation.There was no evidence in support of this allegation.On the other hand, the accused had signed the neces-sary hire purchase agreement before he obtained theloan ; what is more, he had repaid Rs. 10,000 of thesum borrowed on 18.09.72 and had given a promissorynote for the balance. There was, therefore proof on abalance of probability that the transaction was a loancn a hire purchase agreement.
WTMALARATNE, J.—- Wanigasekera v. Republic of Sri Lanka
259
The accused claimed that the Rs. 20,000 he obtained
from Caves Finance and Land Sales Ltd. on 13. 09. 73was also on a hire purchase agreement. In this instancetoo the formalities preceding the grant had beengone through, and the necessary documents had beensigned by the accused. The Judge has held that thiswas not a genuine transaction because Caves had nottaken any steps to get back the money lent until afteraccused had ceased to be a Director ; and also becausethe Board of Directors at a meeting held on 11.5.72,at which the accused participated, had sanctionedoverdraft facilities to Caves to the tune of5 lakhs of rupees. We note that attempts had beenmade by Caves to recover the sum lent before theaccused ceased to be a Director. In this instance, too,there appears to be proof on a balance of probabilitythat the accused obtained this sum as a loan fromCaves. We cannot, however, refrain from making theobservation that persons in the position of Directorsof banks and other Government lending institutionsshould avoid borrowing money from firms which arethe recipients of credit from such Governmentinstitutions. However genuine such transactions maybe, they leave room for suspicion of corruption anagraft, and bring discredit not only to them but also tothe institutions concerned.
The accused claimed to have borrowed Rs. 10,000, from
the firm of Malship Ltd., the successor to the ship-ping business of the Maldivian National Trading Cor-poration, on 29.08.73. The fact that he gave as securitytwo cheques each for Rs. 5,000 and that one of thecheques was realised constitutes proof on a balance ofprobability that the transaction was genuine. Thelearned Judge has disallowed this item for the samereason that he disallowed the loans alleged to havebeen obtained from the Maldivian National TradingCorporation. But, as will be seen from (iv) below.
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VV LAI ALAR ATiSTE, J.—Wimigasekera v. He public of Sri Lanka
those transactions were on a different footing. TheJudge ought not to have ‘ struck out ’ this item fromthe ‘ known income ’ of the accused.
The Maldivian National Trading Corporation (M.N.T. C.) was a trading corporation carrying on businesssin Sri Lanka. It was not a money lending institution.It had shipping business and persons who introducedfreight for carriage in their ships received a commis-sion. The accused was a person who introduced freightand earned commissions. The accused said in evidencethat because of his association with this firm he wasin a position to obtain loans, and he did obtain loansamounting to Rs. 66,000. He wanted the Court tobelieve that what he received was by way of loan, andhe produced by calling a witness named Hashim, D 35,a certified extract from the books of accounts of theM.N.T.C. According to that document there was a sumof Rs. 140,541 due from the accused to the firm as at31.07.73, and this sum included Rs. 66,000, paymentsmade to the accused between 07.07.70 and 30.12.71.
The accused admitted that he had had a close association witha Director of the Corporation who had brought to his notice thatthe M.N.T.C. had problems ” with the Customs Department, bywhich the Judge understood that there had been instances where,customs contraventions constituted by attempts to smuggle goodshad come to light in relation to persons associated with theirships. In addition the M.N.T.C. had considerable “ dealings ”with Exchange Control. The Judge was therefore ready toaccept a prosecution contention that this commercial concernwas so lavish in showering its bounty on the accused when hewas holding the position of a Director of the Bank of Ceylon,appointed as he was by the Minister of Finance under whoseadministration fell the Departments of Customs and ExchangeControl. Accordingly this sum of Rs. 66,000 was not treated asthe accused’s known income or receipts.
The accused admitted that this firm had not given him creditprior to July 1970. The first shipment on which he earned freightwas in November 1971. So that long before he introducedbusiness to the firm the accused was able to obtain credit to the
WI-M LARATNE, J.— Wanigasehera v. Republic of Sri Lanka
261
tune of Rs. 66,000. To earn a freight brokerage of Rs. 66,000 hehad to arrange freight to the value of Rs. 6£ million ; but it trans-pired that during the enire period the freight arranged was onlyvalued at Rs. 15 lakhs, which would have earned him a maximumcommission of Rs. 15,000. The exact amount is given in the docu-ment D 36 (a) as Rs. 14,938.09, and every cent of this had beenpaid to the accused by cheque. No attempt appears to have beenmade by the firm to set off this amount from the “ loans ” duefrom the accused.
The accused attempted to offer an explanation. He said tnatbesides this freight brokerage he was also paid a ‘ trade rebateand that the amount in excess of Rs. 66,000 shown in D 35 consti-tuted the trade rebates he earned. Apart from the accused’s bareassertion of the receipt of trade rebates, there is no supportingevidence. Hashim was not questioned about the accused beingentitled to any such rebate. Hashim had never been employedby the M.N.T.C. He had joined Malships (Ltd.) in 1973 at a timewhen the M.N.T.C. had ceased to carry on business and when,their shipping business was transferred to Malships (Ltd.).Hashim’s ignorance of transactions which the accused is allegedto have had with M.N.T.C. is quite understandable. He merelyproduced the copy of account D 35 certified by a book-keeper.He could not explain the various entries in that document. Ifthe accused received trade rebates he should have led somereliable evidence in support. On the other hand no trade rebatesare mentioned either in D 35 or in any of the tax returns sentby the accused. There was no evidence worthy of considerationthat the accused received any trade rebates ; the only receiptswere on account of freight brokerage and the total amount ofRs. 14,938.09 earned in that way has been reflected in the incomefrom Wanigasekera and Co. for the year ending 31.02.73.
Is there proof on a balance of probability that the accusedreceived Rs. 66,000 as loans from M.N.T.C. ? Three differentdocuments give three different amounts. According to D 22 (b)the ‘ loan ’ of Rs. 31,000 was received on 02.09.71 ; but accordingto D 35 payments adding up to Rs. 31,000 have been received onsix occasions between 13.10.71 and 30.12.71. The break up of this‘ loan ’ of Rs. 66,000 is not shown in D 23. These ‘ loans ’ have notbeen disclosed in the wealth tax return for the year ending31.03.71, although by that date the accused had receivedRs. 25,000 by way of loans. Deductions have however, beenclaimed in respect of loans from the People’s Bank and the StateMortgage Bank. In the capital levy return sent much later on29.04.74 there is, no doubt, a reference to this loan of Rs. 25,000from the M.N.T.C. but why did the accused not disclose it in the
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WIMALAKATNE, J.— Wanigasekera v. Republic of Sri Lanka
earlier tax; return sent on 24.04.72 ? In the tax return for theyear ending 31.03.72 (P 17) a total of “ loans payable and otherdebts ” adds up to Rs. 175,000 but again there is no break up ofthis amount and P 17 is not at all helpful.
A careful consideration of the evidence, including the docu-mentary evidence not referred to in the judgment of the learnedDistrict Judge, does not lead us to the conclusion that theaccused received any sum of money as ‘ loans ’ from the Maldi-vian National Trading Corporation. The sum of Rs. 66,000 claimedfrom that source therefore does not fall under the category ofknown income or receipts of the accused.
The accused claimed also that he utilised a sum of aboutRs. 72,000 for making the disbursements in question from anoverdraft account with the Mercantile Bank. The bank accountD 5 shows that he operated on this overdraft between 01.04.71and 21.12.73 by which date he had settled his commitments tothat bank. The learned District Judge was therefore right inconcluding that in the overall result it would make no differenceto the final question as to the availability of money in the handsof the accused for the purpose of these disbursements.
The known income and receipts of the accused from loansobtained during the relevant period would thus be only a sumof Rs. 35,000, namely Rs. 20,000 from Caves, Rs. 10,000 fromCollettes and Rs. 5,000 from Malships.
Income from Wanigasekera & Co.:
The accused was the sole proprietor of this business. Heclaimed to have earned an income of Rs. 209,989 for the periodof 4 years, from 1.4.70 to 31.3.74. The firm did the business ofbuying and selling Ceylon produce (during the first two years)and in securing freight on a commission basis. In the first year heclaimed to have sold two allotments of cocoa beans, whichbrought a profit of Rs. 19,500. He claimed also to have receivedas commission a sum of Rs. 15,000. After deducting expenditurehis net profit was Rs. 31,704.30 which is as shown in D 23.The Judge has disallowed the commission of Rs. 15,000 becausethe accused had elsewhere claimed that same sum as aloan from the M. N. T. C. The Judge has also disallowed theprofit from the sale of cocoa beans because the accused wasunable, when questioned, to give particulars relating to thetransactions. A strong point in favour of the accused wasthat he had disclosed in P 16, his income tax return for theyear 1971/72 an income of Rs. 46,000 from Wanigasekera & Co ;and had in fact been taxed on that basis long before any
WI MALARATNE, J.— Wanigcisekera v. Republic of Sri Lanka
263
disputes arose. It is unlikely that he would have, exaggeratedhis income and made himself liable to a higher income tax. Itwas not like exaggerating the amount of loans, with a view toclaiming enhanced rebate for wealth tax purposes. The accusedappears to have had considerable business experience. He wasat one time in the committee of management of the CeylonChamber of Commerce during which period he had been in theimport trade. There was, in my view, proof on a balance ofprobability that the accused made a profit of Rs. 19,500 on thesale of cocoa bean and also earned commissions. Although in D 23the accused has claimed a profit of Rs. 31.704.30 for the yearending 31.3.71 I would act upon his income tax return and givehim credit in a sum of Rs. 46,000.
For the year ending 31.3.72 the accused claimed a profit ofRs. 21.929.64 from sales, and a sum of Rs. 5,136 from commissions.After deducting expenditure he claimed a net income ofRs. 19,594.68. The profit from sales has again been disallowedbecause the accused was unable to give particulars relating tothe transactions. In his income tax return P 17 sent on 19.1.73the accused had declared his income from this source asRs. 20,248. I would therefore consider P 17 as constituting proofon a balance of probability, and hold that his known incomefrom this source for the year ending 31.3.71 was Rs. 20,248 eventhough the accused had claimed a little less than this amountin D 23.
For the year ending 31.3.73 the accused claimed Rs. 62,403.44on account of freight rebates and commissions ; a fee ofRs. 31,077.12 received for the sale of commercial intelligence toa New York firm, Czarni & Co. by name ; and brokerage in asura of Rs. 5,000 on the sale of a property in Jawatte Road. Asstated earlier there was no reliable evidence that apart fromfreight brokerage of 1% the accused received any trade rebates.The Judge has allowed him Rs. 16,381.42 for freight brokerageplus Feecs, and had also allowed the sums claimed as havingbeen received from the New York firm and from the land sale. Itwas submitted on behalf of the accused that his income from allsources has been assessed at Rs. 100,000 for this year. The noticeof assessment D 19 is dated 24.10.74 ; that would be after theBribery Commissioner commenced investigations and even afterindictment was served on the accused. No significance can there-fore be attached to D 19. The known income of the accused fromthis source for the year ending 31.3.73 has been correctlyestimated as Rs. 28,170.23.
264WTMAT. RATXE. iVani-jasel.tra r. Republic of Sri Lanka
For the year ending 31.3.1974 the accused claimed a nettincome from Wanigasekera & Co. of Rs. 84,499. This representedthe nett profit out of a sum of Rs. 112,500 paid to the accusedby Messrs. Harrison & Crossfield Ltd. The position of the accusedwas that he was known to the then General Manager of Harrison& Crossfield Ltd., Mr. G. M. Topen. This company was Britishowned. In the process of adjusting its financial structure inaccordance with changing circumstances in this country, accusedsaid that Topen had discussions with him in regard to sugges-tions or advice that the accused could give. After studying thecapital and financial structure, of the company, and consideringits balance sheets, the accused claimed that he advised Topenthat the company’s capital investment in immovable propertyin Colombo was excessive and out of keeping with the company’strading profits. The company owned, inter alia, Prince Building,situated in Prince Street, Fort, and substantial stores premisesabutting Darley Road. The accused suggested to Topen that thecompany might consider selling either of these two assets.Subsequently, the company put up Prince Building for sale, andthe same was purchased by the Government of Ceylon for theCentral Bank for a sum of about Rs. 4 million. Mr. Topen paidthe accused Rs. 112,500 for his advisory services.
Mr. Topen has since left the company. The prosecution calledevidence in rebuttal to disprove the payment of any advisoryfee, or of any fee whatever to the accused. N. Jeyasingham, aDirector of Harrison & Crossfield, who functioned as Accountantin 1972 and 1973 said that their company paid a sum of Rs. 225,000as brokerage on the sale of their Prince Building, and that thebrokerage was paid to one S. A. Jayamaha. Payment was madeby 6 cheques drawn on their No. 2 suspense account at the Hong-kong & Shanghai Bank, which account was operated upon eitherby Topen himself or by his confidential secretary, oneMartenstyne. The printed endorsement “ account payee ” on eachof the six cheques was scored off, and the cheques were drawnas cash cheques. The counterfoils (P 42, P 43, P 33A, P 44,P 45 and P 46) had been written either by Topen or by Martens-tyne and indicate payments to A. S. Jayamaha. Their auditedbooks of accounts and documents, show this payment as beingmade to A. S. Jayamaha on account of brokerage. He denied thatany sum was paid as “ advisory fee ”, and said that there was noneed whatsoever for them to have sought financial advice fromoutside sources, when Topen himself was an Accountant ofrepute, and when they had their own lawyers and auditors. Theyhad also no difficulty in continuing to operate on their overdraftaccounts. Jeyasingham also stated that if this payment was madefor advice given they would then have charged this payment
265
IMAlARA'L'-N'E, J. —?i'an.igase.kera r. Ik-public of Sri Lanka
to iheir revenue account, with consequential tax benefits,whereas brokerage is only deducted from capital gains, whichis taxed at 25%. The evidence of Jeyasingham established thattheir firm had no dealing with the accused and that no advisoryfee was ever paid to any person.
During the cross-examination of Jeyasingham the defenceelicited the fact that there were two receipts in the company’sfiles, P 30 and P 31, signed by the accused acknowledging receiptof a sum of Rs. 112,500 “ as advisory fees ” regarding the sale oftheir Prince Street property. They are dated 18th and 24th May,1973, the dates when two of the cheques for Rs. 50,000 andRs. 62,500 were drawn. Mr. Choksy submits that these documentsconstitute contemporaneous evidence in support of the accused’sposition, which the trial Judge has overlooked.
The learned Judge held that the accused had pretended invain to disguise the true nature of this transaction which resultedin his realisation of Rs. 112,500 ; that the accused received thissubstantial payments for some significant service rendered byhint in the matter of the ultimate sale of the Prince Buildingto the Central Bank on 26.3.73 ; and that the circumstancessurrounding it clearly demonstrate that this sum of money can-not be regarded as part of the accused’s known income orreceipts. I may summarise the reasons given by him for hisconclusion. In evidence in chief the accused did not testify tohis having received this money from this source ; it was onlyin cross examination, after he had handed over the set of accountsD 23, and when he was questioned on the item relating to“ Commissions ” that he gave details. All that he did to deservethis payment was that in January or February 1972 he had given“ financial advice ” on the “ capital structure ” of Harrison &Crossfield to Topen whom he had occasion to meet at the latter’soffice. This “ financial advice ” was never reduced to writingbut was “ given across the table ” at a discussion at which onlyhe and Topen were present. Fifteen months later, on 18.5.73Topen told him over the telephone that the firm had decidedto make this payment for the services rendered in giving financialadvice. The two cheques were not drawn in favour of theaccused, but the evidence of Jeyasingham and Martenstyne wasthat all payments on account of “ brokerage ” had been recordedin their books as being made to Jayamaha. The accused wasunable to say specifically as to how the two cheques reachedhis hands ; on the other hand the prosecution suggested that
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VIMALAUATN'E, J.—Wanigmekcrn v. Republic of Sri Lanka
there had been spme arrangement between Jayamaha and theaccused whereby the accused was to receive half the paymentand the accused had therefore no alternative but to give thereceipts P 30 & P 31 for otherwise Jayamaha would have beenliable for income tax on the full amount of Rs. 225,000. Theform in which the receipts were given, referring as they areto the “ sale ” of the Prince Building, contradicts the evidenceof the accused that he had nothing to do with the sale of thatbuilding to the Central Bank. We could see no other conclusionthat the Judge could have reached than the one set out in hisjudgment, for there was no proof on a balance of probabilitythat this payment was an advisory fee.
The learned Judge was right in concluding that it did notconstitute any part of the known income or receipts of theaccused. Both Mr. Pullenayagam and Mr. Choksy posed thequestions—what is the role played by the accused in the purchaseof Prince Building by the Central Bank ? Is there any evidencewhatever to suggest that he exercised any influence, and if soon whom ? As stated earlier in this judgment, it was not neces-sary for the prosecution to prove that this sum of Rs. 112,500came into the hands of the accused as a result of bribery. Thepurpose for which this money was paid ts the accused was notknown to the prosecution. Although the books of Harrison &Crossfield Ltd have noted the payment of Rs. 225,000 to A. S.Jayamaha as “brokerage ” on account of the sale of their PrinceBuilding, neither Jeyasingham nor Martenstyne had any personalknowledge as to what this payment represented. It is not neces-sary to say anything more, except to note the secrecy surround-ing the payment. A large sum of money has been paid by cashcheques drawn on a suspense account, under the personalsupervision of the General Manager. They were all paymentsmade to Jayamaha. The accused said in his evidence that hehad nothing to do with the sale of the Prince Building to theCentral Bank, and that he had no association with Jayamaha.There was therefore no proof on a balance of probability thatthis was payment as “ brokerage ” either.
WIMA3LAP.ATNE, J.—Wanigasekera v. Republic of Sri Lanka
267
In the background of the evidence that the accused, as aDirector of the Bank of Ceylon, participated in at least fourmeetings of the Board of Directors of the bank, at which thequestion of the purchase of the Prince Building to house certainbranches of the Bank of Ceylon was discussed; that theaccused had at about the same time given advice to Topenregarding the sale of this building with a view to reorganisingthe capital structure of the company, that soon thereafter Topenwrote a confidential letter to the Manager of the Bank of Ceylonoffering to sell this building for a sum of Rs. 5^ million ; thatthe Manager of the Bank’s Premises Department had valued thatsame building at only Rs. 3£ million ; that shortly thereafterHarrison & Crossfield Ltd. was able to sell the building for Rs. 4imillion to the Central Bank ; and that soon thereafter the accusedreceived a handsome payment of Rs. 112,500 taken cumulativelysuggest a strong inference that the payment to the accused wasby way of a bribe. As I stated earlier, as this sum of money hasbeen proved not to be part of his known income or receipts, theaccused is deemed to have acquired it by bribery and the accusedhas failed to rebut the presumption of bribery.
A submission was made that as the Department of InlandRevenue, by its notice of assessment D 20 for the year of assess-ment 1973/74, had imposed income tax on the basis of an incomeof Rs. 100,000 the accused’s known income should be taken atthat figure. We have acted on the basis of similar notices D 16,for the year 1971/72, and D 18 for the year 1972/73, and given theaccused the benefit of those assessments because they areassessments made long before any disputes arose, and consequenton contemporaneous returns submitted by the accused.Nevertheless we were not unmindful of the fact that it is quiteeasy for a person to include false incomes in his returns with aview to utilising such declaration as a defence to subsequentprosecutions under section 23 A ; but as this prosecution appearsto be one of the earliest under this section we have given theaccused the benefit of the declarations in D 16 and D 18. D 20 is ona different footing. It was an assessment made in the absence of
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WIMLAXAllATKK, J.—Wanigaackera r. Republic of Sri Lanka
a return, on 24.10.74 long after the dispute arose, and even afterthis prosecution had been instituted.
The known sources of income and receipts of the accused duringthe relevant period are therefore the following: —
Loans obtained from Collettes, Caves &Rs.
Malships (Ltd.). .35,000.00
Income from rents, Director’s fees and wife’s
pension . …. .128,866.00
Income from Wanigasekera & Co.. .94,418.00
Loan recovered… .3,000.00
261,284.00
Less living expenses (including trips
abroad) ……113,170.00
The accused’s known income and receipts
therefore will be….148,114.00
The total value of the property admittedlyacquired by the accused and disburse-ments admittedly made by him was .. Rs. 402,564.25
His known income as stated above was .. Rs. 148,114.00
Rs. 254,450.25
This balance sum of Rs. 254,450.25 constitutes the value ofproperty acquired by bribery, in terms of section 23A of theBribery Act. The conviction of the accused appellant is thereforeaffirmed.
The learned District Judge has imposed the maximum sentencepermissible under section 23A (3), namely, a term of sevenyears rigorous imprisonment, and a fine of Rs. 5,000. In additionhe has imposed a penalty under section 26 of the Act, as well asan additional fine under section 26A. I am of the view thatsection 26A has retrospective operation, for the reasons set outin the judgment of my brother Sharvananda, J. But the DistrictJudge was clearly wrong in imposing a penalty under section 26.It seems to me that whereas the additional fine under section26A, may be imposed in respect of an offence under section 23A,the penalty contemplated under section 26 cannot also be imposed.
Si IAR VANTANDA, J.—Wanigasekera v. Republic of Sri Lanka
269
The penalty under that section can be imposed" only on offenderswho have been found guilty of any offence committed by theacceptance of any gratification in contravention of the provisionsof Part II of the Act, other than the provisions of section 23A.
As the fine that a court is obliged to impose upon an offenderunder section 26A cannot be less than the amount which thecourt has found to have been acquired by bribery, the maximumpunishment imposed on the appellant under section 23A (3) is,in my view excessive, i would therefore set aside the sentenceimposed on the accused by the learned District Judge andsubstitute therefor the following sentences : —
Rigorous imprisonment for a period of 3 years and a fineof Rs. 1,000, under section 23A (3). An additional fine ofRs. 254,450.25 under section 26A.
The legal issues in this case are important, and the factualissues have been most interesting. On both aspects counsel havebeen of great assistance to us during the 10 days of argument.
Weerabatne, J.—I agree.
Sharvananda, J.
At the conclusion of the trial, the District Judge convicted theaccused and, in terms of section 26A of the Bribery Act, imposeda fine of Rs. 354,375.51 (which amount the Court found to havebeen acquired by bribery).
The question had been raised in appeal as to the jurisdiction ofthe District Judge to impose a fine under section 26A of theBribery Act for an offence which had been committed prior tothe enactment of section 26A. For the purpose of appreciatingthis argument, the following dates have to be borne in mind : —
The property which is deemed to have been acquired bybribery was alleged to have been acquired by the accused-appellant between 1st June, 1970, and the 18th day of March, 1974.The indictment in this case was presented to the District Courton 12th October, 1974. Section 26A of the Bribery Act. formingpart of the Bribery (Amendment) Law, No. 38 of 1974, came intooperation on 24th October, 1974, and the trial concluded andconviction recorded on 18th June, 1975.
270
SHAKY AX AND A, J.—Wan igasekera v. Republic of Sri Lanka
The Amending Law No. 38 of 1974 amended the originalBribery Act by adding new sections to existing ones and byrepealing certain old sections and substituting in place of therepealed provisions certain new provisions. The scheme of theAmending Law maintains a distinction between provisions whichare repealed and substitution made thereto and new provisionswhich are added to the already existing provisions. Sections 4 (5),8 (2), 10 (4), 19 (3), 23A, 25 (3) , 26A, 30A and section 89A are newsub-sections or sections incorporated in the Amending Law, whilethe old sections 6 (2). 7, 9 (1) and section 10 (3) have beenrepealed and new sections have been substituted therefor.Section 78 of the principal enactment has been amended by therepeal of sub-sections (4) and (5) of that section without anysubstitution being made therefor.
Counsel for the appellant contended that in keeping with thecardinal rule of statutory interpretation that generally statutesare prospective and that they apply only to cases and facts whichcome into existence after they were enacted, the provision forenhanced fine introduced by the Amending Law, No. 38 of 1974is not applicable to the punishment of offences committed beforeits enactment and that hence it was not competent for the DistrictJudge to have imposed in this case an additional fine underSection 26A of the Bribery Act. In support of his submission, herelied on the judgment of the Criminal Justice Commission inIn Re de Mel (78 N.L.R. 67). On the other hand, State Counselreferred us to the judgment of the English Courts in The Directorof Public Prosecutions v. Lamb, (1941) 2 A.E.R. 499, Buckmanv. Button, (1943) 2 A.E.R. 82 and Rex v. Oliver, (1943)2
A.E.R. 800, and submitted that the Amending Law providingfor enhanced punishment on conviction applies to offencescommitted before the enactment of the law as well as to offencescommitted thereafter.
The relevant facts ir> In Re de Mel (78 N.L.R. 67), are asfollows : —
The suspects were charged and tound guilty on their ownplea of offences punishable under section 51 (4) of the Exchange
SHARVANAN-DA, J.—■Wanigasekera v. Republic of Sri Lanka
271
Control Act committed between the 1st day of January, 1970, andthe 30th day of June, 1971. At the time when the offences werecommitted, the relevant provision in section 51 (4) relating tothe punishment of an offender was as follows: —
“ (4) Any person who commits an offence against this Actshall—
upon conviction after summary trial before a
Magistrate, be liable to imprisonment of eitherdescription for a term not exceeding six monthsor to a fine, or to both such imprisonment andfine; or
on conviction before a District Court, be liable
to imprisonment of either description for a termnot exceeding two years or to a fine, or to bothsuch imprisonment and fine ; ”
By section 13 of the Exchange Control (Amendment) Law, No. 39of 1973, section 51 was amended, inter alia, as follows : —
“ (2) by the repeal of sub-section (4) thereof and thesubstitution therefor of the following sub-section:
Any person who commits an offence under thisAct shall—
on conviction after summary trial before a
Magistrate, be liable to imprisonment ofeither description for a term not exceed-ing eighteen months, or to both suchimprisonment and fine ;
on conviction before a District Court, be
liable to imprisonment of either descriptionfor a term not exceeding five years, or toboth such imprisonment and fine ; ”
Controversy arose whether it was the provision introducedby the Amending Law, No. 39 of 1973 or the provision in theoriginal Act which applied in respect of the offences committed
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SHA iiV'.X.NDA, J.— Wanigasckera v. Republic of Sri Lanka
by the suspect. Samerawickrema, J. in the judgment referredto the rules of statutory interpretation against retrospectiveoperation of laws and to section 6(3) of the InterpretationOrdinance and distinguished the English case of D. P. P. v. Lamb,(1941) 2 A.E.R. 499, on the following ground :
“ In the statute which was considered in Lamb’s case,there was no repeal. There was only provision for the imposi-tion of an alternative penalty. In the Exchange Control(Amendment) Law, the word ‘ repeal ’ is expressly used.In the former case, the Interpretation Act was held not toapply. In the present case, prima facie, section 6 (3) (of theInterpretation Ordinance) would apply. But the chief pointof difference is in the language used. The English Statute
states : ‘Where any person is convicted of an offence
t*ne maximum fine which may be imposed on him shall be
’ it was held that from the language it was clear
that the provisions applied to a conviction for an offencecommitted before the enactment. Section 51(4) of theExchange Control (Amendment) Law states :
“ Any person who commits an offence under this Act shallon convictionbe liable to imprisonment. …”
The word ‘ commits ’, prima facie, refers to the presentand tftie future. Under this provision, the conditions for lia-bility are two fold : namely, the committing of an offenceon or after the date of enactment and a conviction. Farfrom being express language indicating that the provisionis retrospective, the language used indicates the contrary. ”(78 N.L.R. 67 at 74 and 75).
In D. P. P. v. Lamb, (1941) 2 A.E.B. 499, the facts were asfollows :—
The defendants were charged with certain currency offencescommitted between September 3, 1939, and May 11, 1940. Theypleaded guilty. The information was dated August 17, 1940. Theregulations in force at the time of commission of the offences
SHARVAJN'AirDA, JWanigasekera v. Republic of Sri Lanka273
limited the penalty for each offence to a fine of £ 100 or imprison-ment for a term not exceeding three months, or both. OnJune 11, 1940, the Order-in-Council came into force providing foran enhanced penalty. The terms of this Order were :
“ Where any person is convicted of an offence against thoseregulations, the maximum fine which may be imposed onhim shall be a fine equal to three times the value of thesecurity. ”
It was contended on behalf of the accused that the AmendingOrder-in-Council, which came into operation subsequent to ttiedate of the offence, could not affect the punishment for theoffence which was complete in every respect before the amend-ment was made. This contention was rejected by the Court onthe ground that the meaning of the Order-in-Council was plainand not in any way ambiguous. Upon a plain meaning, it referredto conviction after the date at which it came into force and itwas therefore immaterial that the offence was committed beforethat time. It was further held that there had been no repeal.The original section imposing a penalty had full force and effecteither expressly or impliedly. The amendment had merelyimposed an increased penalty. As Tucker, J. stated :
“ It is not a case of regulation creating a new offence. Noris it for that matter a regulation providing for some differentkind of penalty or punishment altogether. It is merelyincreasing the amount of a monetary fine. In my view, thewords are clear, and although I do not altogether like theidea of punishment being increased after the offence hadbeen completed, nonetheless, and if that is the result, I thinkit is impossible to escape from the consequences of thelanguage which has been used. ”
In the course of his judgment, Humphreys, J. referred to Rexv. Jackson, (1775)1 Cowp. 297, where Lord Mansfield, C.J.
observed that “ now it is a general rule that subsequent statuteswhich add accumulative penalties do not repeal the formerstatutes
The case of Buckman v. Button, (1943) 2 A.E.R. 82, confirmedthe decision in D. P. P. v. Lamb, (1941) 2 A.E.R. 499, in so faras it dealt with the position where the penalty is increased afterthe offence is complete. Lamb’s case was followed in Rex v.Oliver, (1943) 2 A.E.R. 800, in which, after the commission ofthe offences charged against the accused, the penalties wereincreased by an order in the following terms : —
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SIIARYAXAJ'TDA, J.—Wanigaseksra v. Republic of Sri Lanka
“ Any person guilty of an offence against this regulationshall be liable to ‘ certain penalties being greater than thosepreviously applicable to such offences’.”
It was held that in that context guilty “ could mean only foundguilty” and hence, on a proper construction of the regulationincreasing penalties, a person who had already committed theoffences at a time the order was enacted could be made liableto the higher penalties.
Section 23(A) (3) of the Bribery Act, as amended by ActNo. 40 of 1958 and Act No. 20 of 1965, provided as follows : —
“ A person who is or had been the owner of any propertywhich is deemed under subsection (1) to be property which
he has or had acquired by bribery shall be guilty
of an offence punishable with rigorous imprisonment for aterm of not more than seven years and a fine not exceedingRs. 5,000. ”
Section 11 of the Bribery (Amendment) Law, No. 38 of 1974,provided as follows : —
11. The following new section is hereby inserted imme-diately after section 26 and shall have effect as section26A of the principal enactment :
“ Where the District Court convicts any person of anoffence under section 23A, it shall, in addition to any otherpenalty that it is required to impose under this Act, imposea fine of not less than the amount which such Court has
found to have been acquired by briberyand not more
than three times such amount. ”
In my view, the language of the Amending Law is plain andcan only mean that which it says. Section 6 (3) of the Interpreta-tion Ordinance does not apply to the present circumstances asthe new section 26A in the scheme of the Amending Law doesnot repeal any existing written law, but only provides for theimposition of additional penalty. The amending section 26A isclearly retrospective. For the reasons set out in D. P. P. v. Lamb,(1941) 2 A.E.R. 499, and referred to with approval by Samera-wickreme, J. in de Mel, 78 N.L.R. 67, I have no hesitation inholding that the offence with which the accused is charged inthe present case attracts 26A of the Bribery Act and that theaccused-appellant has, on his conviction in this case, incurredthe further penalty imposed on him.
Alpenia Singho v. Fernando
275
Further, on an examination of the relevant provisions of theBribery Act, it would appear that section 26A was intended tofill up a lacuna in the scheme of the punitive provisions of theAct and that there was good reason for retrospective operationbeing given to that section. Offences of the same genre shouldsuffer the same punishment. Sections 19, 20, 21 and 23A deal withoffences of accepting a bribe or gratification by various categoriesof persons and prescribe the punishment of a term not exceedingseven years and a fine of not more than Rs. 5,000 for all suchoffences. The Legislature further provides, by section 26 of theAct, that any person who is convicted of an offence committedby the acceptance of any gratification in contravention of anyprovision of Part II of the Act shall, in addition, be liable to payas penalty a sum which is equal to the amount of the gratification.The object underlying section 26 would seem to be compel theoffender to disgorge the proceeds of the bribe which he hasaccepted. When section 23A was enacted by the Amending ActNo. 40 of 1958 making a person who is the owner of a propertywhich is deemed under section 23A (1) to be property which hehas acquired by bribery guilty of an offence, the draftsmanappears to have overlooked the fact that section 26 was applica-ble to the offender under section 23A, and that hence a personwho is guilty under section 23A (3) will not be liable, apartfrom the penalty imposed by section 23A, to the additionalpenalty provided by section 26. The amending section 26A seeksto cure this anomaly. Under section 26A, the offender undersection 23A will also have to disgorge the proceeds of the bribethat he has accepted or deemed to have accepted. Thus section26A fits into the general scheme of punishment.
I agree with the judgment of Wimalaratne, J. and with thesentence imposed by him.
Conviction affirmed.
Sentence varied.