Sri Lanka Law Reports
11989} 2 Sri LR
v.JESUDASAN AND ANOTHER
COURT OF APPEALS.N. SILVA, J. ANDANANDACOOMARASWAMY, J.
A. NO. 195/88'
C. COLOMBO 2828/SPLJANUARY 23, 31 FEBRUARY 1, 2, 3,
■ 22, 24 AND MARCH 4, 1989
Contempt of Court – Disobedience of interim order of District Court made underCompanies Ordinance – Removal of files
The 2nd respondent – respondent (Jesudasan) was charged with committingcohtempt of court by removing certain files from the premises of Carson Cumberbatch& Co. Ltd.' utilising his position or authority as Director in contravention of the interimorder made by the District Court. ( The 3rd respondent (Poulier) was also similarlycharged but he was discharged for lack of evidence against him at an early stage ofthe proceedings)
The evidence showed that the 2nd respondent removed two bags loaded at theCompany in his car. Upon his premises being searched on a search warrant two fileswere, found by S:l. Mendis. His description of the bag in which he found the two filesdid not tally with the description of the bags given by the Security guards who saw twobags being brought in and later removed in an apparently loaded state in a car. Thepetitioner did not adduce any direct evidence to the effect that the 2nd respondent -respondents removed any files from the Company premises after the interim order wasserved. In his statement to the Police the 2nd respondent – respondent said he broughthome documents belonging to himself and the documents relating to the District Court. case.
HOId: – ..
The items of circumstantial evidence do not lead to the necessary inference that the2nd respondent-respondent removed "files of the company after the interim order was■■ served. The circumstances are equally consistent with an innocent explanation. Furtherit was not established that the 2nd respondent – respondent "utilised" his position asDirector to remove these files. There is no evidence adduced of any act done by the2nd respondent – respondent inside the company premises after the interim order wasserved. In fact the evidence is that the 2nd respondent – respondent moved out of the.premises taking with him hispersonal belongings and the documents relating to thecase. The charge of contempt therefore fails.
INQUIRY into charge of contempt of court.
Faiz_Mustapha, P.C., with D. Deraniygala, C. Gunaratne and S.A Parathalingam forpetitioner
Wijeratne v. Jesudasan and Another (S.N. Silva, J.)
Dr. H.W. Jayewardene, O.C., with H.L de Silva, P.C., DinaI Phillips and H. Cabral for2nd respondent-respondent.
K.N. Choksy, P.C., with N. Fernando and Anil Tittawella for 3rdrespondent-respondent.
September 22, 1989S.N. SILVA, J.
These proceedings were initiated by the 4th Respondent-Petitionerabovenamed by filing a petition and affidavit- dated 4.3.1988supported by the documents marked P1, PtA, P2, P2A, P3, P4, P5,P6 and P6A. It is alleged that the 2nd and 3rdRespondent-Respondents committed certain acts of contempt againstthe authority of the Distict Court of Colombo.
The 4th Respondent-Petitioner, the 1st and 2nd Respon-dent-Respondents (being the persons accused 6f committingcontempt of Court) and the 5th to 10th Respondents abovenamed, atthe material time, constituted the . Board of Directors ofMessrs.Carson Cumberbatch & Co. Ltd., and' being the 1stRespondent-Respondent abovenamed.
Dr. Gayathri Madan Mohan residing in London, who is a shareholder of the said Company, filed petition dated 26.1.1988 in theDistrict Court of Colombo (case No.2828/Spl.) in terms of section 210to 219 of the Companies Act No. 17 of 1982 in respect of thecompany, citing the Directors as the Respondents. This petition wasfiled with the consent of certain other shareholders, who, togetherwith the Petitioner owned 51,750 shares being in excess of five percentof the issued capital of the Company. She averred, inter alia, thatthe affairs of the company, were conducted with a lack of probity andfair dealing. She sought certain interim and final orders against the2nd and 3rd Respondent-Respondents above named. Upon thispetition being filed the District Court issued notice on theRespondents. Thereafter, the 4th Respondent-Petitioner filed petitiondated 5.2.1988 seeking inter alia, interim orders restraining the 2ndand 3rd Respondent-Respondents from functioning or acting asDirectors of the Company and its subsidiaries and associates,pending the final determination of the main application. Thisapplication was supported ex parte on 5.2.88 and the District Courtissued the interim order prayed for against the 2nd and 3rd
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Respondents. The charges of contempt are based on the allegationthat subsequent to the interim order being served on theRespondent-Respondents they removed certain files from thepremises of the company at No.67, Dharmapala Mawatha, Colombo7, by utilising their position and authority as Directors and therebyacted in contempt of the interim order of the District Court.
The petition for contempt of court was supported on 10.3.88 andthis court issued summons on the Respondent-Respondents requiringthem to answer the charges of contempt. They appeared in court on27.4.88 and pleaded not guilty to the charges. Thereafter the matterwas fixed for inquiry which commenced before this bench on 23.1.88
After the evidence of several witnesses was recorded anapplication was made on behalf of the 3rd Respondent-Respondentthat he be discharged from the proceedings because the evidenceadduced against him did not warrant his defence being called for bycourt. Counsel for the Petitioner at that stage conceded that he hadno further evidence to adduceagainst the3rd
Respondent-Respondent but submitted that the evidence alreadyadduced was sufficient to warrant a defence being called for from thisRespondent. The application for a discharge was then considered byus, and by order dated 3.2.89 we discharged the 3rdRespondent-Respondent from these proceedings on the basis thatthe Petitioner failed to establish a prima facie case against thisRespondent.
On 24.2.89, after the evidence of witness Hettige, Sub-Inspector ofPolice attached to the Kqllupitiya Police Station was concluded,Counsel for the Petitioner submitted that he had no further evidenceto adduce against the 2nd Respondent-Respondent. He submittedthat he would call the Petitioner as a witness only in compliance withthe order made by Court on 31.1.89. However, it was his position thatthe evidence of the Petitioner does not implicate the 2ndRespondent-Respondent with regard to the commission of thealleged act of contempt of court. Thereupon Counsel for the 2ndRespondent-Respondent submitted that the Petitioner failed toestablish a prima facie case against his client and as such his clientshould be discharged from the proceedings. This order relates only tothe case as against the 2nd Respondent-Respondent.
CAWijeratne v. Jesudasan and Another (S. N. Silva, J.)341
On the charge as contained in the summons served on the 2ndRespondent-Respondent, the Petitioner has to establish, two matters,they are:
that after the interim order of the District Court was served,this Respondent removed certain files from the premises ofthe company utilising his position or authority as Director:
that such removal of files was in contravention of the interimorder and as such constituted a contempt of the authority of
( the District' Court.-
The matter referred to at (1) above is a question of fact that has tobe established on evidence. The matter referred to at (2) is aninference that may be drawn, on the facts that are established on■ evidence, considered in the light of the interim order and the lawrelating to contempt of court. It is necessary to consider the secondmatter only if we are satisfied that the Petitioner has adduedsufficient evidence to establish the first.
The Petitioner called witnesses, Sunil Fernando who representedthe Registrar of the District Court, Colombo and A.H.Somapala,Process Sever, to prove that the interim order referred to above wasmade by the District Court on 5.2.88 and, that it was served on the2nd Respondent-Respondent at the premises of the company.According to Somapala the interim order was served by him on theRespondent at about 4.30 p.m. This evidence was not challenged bythe. 2nd Respondent-Respondent.
W.K. Selvaratnam, a Security Guard who was on duty at the maingate of the company premises, stated that on 5.2.88 at about 6 p.m.the 2nd Respondent-Respondent’s car came into the premises drivenby one Ponnambalam who is the regular driver. There was no oneelse in the car. The car was searched in keeping with the normalprocedure and he saw two large leather suit cases, inside the boot ofthe car. The suit cases were empty. Between 7.30 and 8.10 p.m. thecar left the premises, but at that stage it was not searched becausethe 2nd Respondent-Respondent was inside.
l. Gareem, a Security Officer of a Private Security firm engagedby the company, stated,that on 5.2.88 between 5.30 and 6.30 p.m.he was on duty at the main entrance of the company building, nearthe place where the lifts are located. He saw Ponnambalam comeinside the building carrying two large bags that were taken up the liftto the floor where the 2nd Respondent’s office was located. He
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observed that these bags were empty. Later be saw Ponnambalamleave the building with the bags that appeared to be loaded. Thebags were not searched by him at any stage. He also saw the 2ndRespondent-Respondent leave the premises in the car driven byPonnambalam.
A complaint was made to the Kollupitiya police by PJ. Fernando,a Director of the company who is the 5th-Respondent above named.The complaint was recorded by D.E. Alahapeoima, Police.Sergeant2990, commencing at 1.55 a.m. on 6.2.88. The recording of thestatement concluded at 3.10 a.nrv Thereafter, a-police party went optto search the houses of the 2nd and 3rd Respondent-Respondents.The 3rd Respondent-Respondent permitted a search of his house butno files or documents belonging to the company were' found there.The 2nd Respondent-Respondent refused to permit a search of hjshouse.-
On. 6.2.88 being a Saturday, the Kollupitiya police made anapplication for a search warrent in respact of the residence of the 2ndRespondent-Respondent. The first attempt to obtain the warrantfailed bacause the documents in respect of which the search wasapplied for were not adequately described in the application.
. Thereafter, a further statement was recorded of P.J. Fernando andan amended application was made for a search warrant. TheMagistrate issued a search warrant in respect of premises number 6,6th Lane, Colombo 3, being the residence of the 2ndRespondent-Respondent. The search warrant was issued at about6.30 p.m. and a party of police officers led by Sub-Inspector Mendis' of the Kollupitiya Police searched the house of the 2ndRespondent-Respondent commencing at about 7.30 p.m. In thecourse of the search, Sub-Inspector Mendis took charge of two filesproduced marked X14’ and ‘X15 titled’, “Malaysianisation policy”and “Callingham Crane”.
Counsel for the 2nd Respondent-Respondent cross-examinedwitness Alahaperuma and Mendis at length, to support thesuggestion that the files were voluntarily handed over by the 2ndRespondent-Respondent. It was his contention that the title of thefiles to be searched for had been recorded in the statement of P.J.Fernando and in the search warrant in Sinhala and that what wasrecorded could not possibly have led any person to discover ‘X14’and ‘X15’. There is indeed considerable rqerit in the suggestion of
Wijeratne v. Jesudasan and Another (S.N. SilvS, J.)
Counsel. But, sub-inspector Mendis persisted in saying that he foundthe files unaided by the 2nd Respondent-Respondent.
The description given by S.l.Mendis of the bag in which the fileswere found, does not tally with the description of the bags given bywitnesses Careem and Selvarafnam. Counsel for the 2ndRespondent-Respondent suggested that the files 'X14' and ‘X15’were kept in the residence of the 2nd Respondent-Respondent, allalong in view of certain investigations that were carried out by theExchange Control Department. In fact, M. Nagahawatta, the formerController of Exchange who was called by the Petitioner stated thatthere was an investigation carried out by the Department into certainaffairs of the company and that the 2nd Respondent-Respondentattended interviews at the Department in this regard. Certain folios of‘X14’ contained correspondence had between the Exchange ControlDepartment and the company. These letters had been signed by the2nd Respondent-Respondent on behalf of the company.
The Petitioner did nbt adduce any direct evidence to the effect thatthe 2nd Respondent-Respondent removed any files from thecompany premises after the interim order was served. He invited theCourt to draw that inference from the items of circumstantial evidencereferred above. It was Counsel’s submission that X14 and X15 hadbeen removed in thebags thatwerecarriedby the driver
Ponnambalam. Counselsought tobuttress thissubmission- by
producing X19 being a portion of the statement. recorded byS.I.Hettige of the 2nd Respondent-Respondent. It was sought toproduce this statement as an admission. X19 reads as follows:
“Thereafter I remained in my office till about 7 p.m. and came -home bringing the documents belonging to me and thedocuments relating to the action in the District Court.’’
It was the contention of Counsel, that words “documents relating tothe action in the District Court’’ referred to the two files X14 and X15.However, S.I.Hettige inanswer toCourtclearlystated that he
questioned the 2nd Respondent-Respondent as to whether the latter,brought any files of the company. Hettige specifically stated that the2nd Respondent-Respondent answered this question in the negative’.Therefore, we are of the view that the contention of Counsel'in thisregard does not hold water.
. In the result ‘ we areleft with certainitems of circumstantial –
evidence which do not lead to the nece.sssary inference that the 2nd
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Respondent-Respondent removed files of the company after theinterim order was served. The circumstances are equally consistentwith an innocent explanation.
The charge made against the 2nd Respondent-Respondent statesthat certain files were removed by him “utilising his position andauthority as Director". Therefore the charge would not be establishedmerely by proving that certain files were in fact removed by the 2ndRespondent-Respondent, it would be necessary to establish furtherthat he “utilised” his position as Director to remove these files. Noevidence has been adduced by the Petitioner as to any act done bythe 2nd Respondent-Respondent inside the company premises afterthe interim order was served. On the contrary the evidence is clearthat aftei* the interim order was served, the 2ndRespondent-Respondent moved out of the premises taking with himhis personal belongings and the documents relating to the case.Therefore, we are of the view, that the Petitioner has failed toestablish the charge of contempt of court that has been made againstthe 2nd Respondent-Respondent. We accordingly find him not guiltyon the charge and discharge him from these proceedings
ANANDACOOMARASWAMY, J. – I agree.
WIJERATNE v. JESUDASAN AND ANOTHER