Sri Lanka Law Reports
(2006) 3 Sri L R.
KAKULANDARAVS.DIRECTOR GENERAL, PREVENTION OFBRIBERY AND CORRUPTIONCOURT OF APPEALBALAPATABENDI, J(P/CA),
CA(PHC) APN 231/2004.
OCTOBER 24, 2005.
DECEMBER 5, 2005.
Bribery Act-Section 23 (A) 3 – Criminal Procedure Code-section 200-Accused not able to account for value of properties gained with knownincome-Burden on whom? – Duty of the prosecution under Section 23(A).
The accused-petitioner was charged under section 23 (A) as he couldnot account for the value of properties he gained with his known income.At the end of the case for the prosecution, an application was made by thedefence under section 200 of the Criminal Procedure Code to acquit theaccused, as it was contended that, the prosecution had not discharged itsburden to show that the expenditure is more than the known income of theaccused for the relevant period. The application was refused and thedefence was called. The accused petitioner sought to have the order setaside.
The burden lies with a prosecution to show that theexpenditure is more than the known income of the accusedfor the relevant periods. The prosecution had not done so;the prosecution cannot rely on the presumption, referred to inthe section-Section 23A
It is on the prosecution to prove that the charges were filedonly after thorough investigation. If this was challenged the
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prosecution should satisfy court that such an investigationwas done. The prosecution must prove its case withoutleaving part of the evidence to be provided by the accused.
Per Basnayake, J.
“The Commission should refrain from bringing persons to Court unlessthey are able to show that charges have been brought after a thoroughinvestigation. No attempt has been made to ascertain the receipts of theaccused on account of the investigations, done to the bank during therelevant period.
Cases referred to:
Wanigasekara vs Republic of Sri Lanka 79 1NLR 240 at 248
C. S. S. Swanii vs State 1969 AIR SC 7
Dulindra Weerasuriya, with Janaka Amerasinghe for accused-petitioner.Malika Liyanage Deputy Director General, Prevention of Bribery &Corruption.
Cur. adv. vult.
November 16, 2006.
ERIC BASNAYAKE, J.The accused petitioner (hereinafter referred to as the accused) inthis case was an Assistant Commissioner of Agrarian Services. Hewas charged under Section 23 A (3) of the Bribery Act to wit that forthe period 17.10.1988 and 31.8.1989 the accused could not accountfor the value of properties he gained as per the details given in theattachment with his known income, an offence punishable with sevenyears imprisonment and a fine. After the closing of the prosecution
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case an application was made by the defence under Section 200 ofthe Code of Criminal Procedure Act to acquit the accused. The learnedHigh Court Judge after hearing both parties refused the applicationand called for the defence. The accused is seeking to have the orderof the learned High Court Judge set aside.
Submission of the learned counsel for the accused
This action was filed on the basis that the accused could not accountfor his expenditure from his known income. As per the income and theexpenditure in the document marked P2 (P17 at the trial) the differenceis Rs. 122,772.74. The learned counsel submitted that the income theaccused had received from the Bank of Ceylon for inquiries conductedregarding non payment of agricultural loans of the debtors had notbeen accounted for. Hence, he argued, the document P2 cannot beconsidered as a correct statement of account. He submitted that theprosecution is aware of these payments. The learned counsel submittedthat in terms of Section 23A the burden lies with the prosecution toshow that the expenditure is more that the known income of the accusedfor the relevant period. As the prosecution had not done so theprosecution cannot rely on the presumption referred to in the section.
Section 23 A (1) is as followsWhere a person has or had acquiredany property on or after March 1st 1954 and such property –
being property other than money, cannot be or could not havebeen-
property acquired with any part of his known Income or
property which is or was part of his known receipts,
(Hi) property to which any part of his known Receipts has or hadbeen converted,
then, for the purposes of any prosecution under this section, it shallbe deemed, until the contrary is proved by him, that such property is
CA Kakulandara vs. Slrector General, Prevention of Bribery and Corruption 93
(Eric Basnayake. J.)
or was property which he has or had acquired by bribery or to which hehas or had converted any property acquired by him by bribery.
a person who is or had been the owner of any property which isdeemed under sub section (1) to be property which he has or hadacquired by bribery or to which he has or had converted any propertyacquired by him by bribery shall be guilty of an offence punishablewith rigorous imprisonment for a term of not more than seven yearsand a fine not exceeding five thousand rupees:
The complaint of the learned counsel is that the summary of theIncome and expenditure (marked P17 at the trial and as P2 to thepetition) showing the difference between the income and theexpenditure as Rs. 122,172.74 is wrong as the prosecution had failedto prove all the known income of the accused after a thoroughinvestigation. Two witnesses for the prosecution, namely, Cyril WickumAriyaratne and Tennakoon Mudiyanselage Seneviratne admitted inevidence that some receipts of the accused during the relevant periodhad not been accounted for in preparing the summary marked P17.Two of these receipts were marked V10 and V11 at the trial (P4a andP4b). It is evident from documents marked P3 and P4 at the trial (P5aand P5b) that the Bribery Commission was aware prior to the date theaccused was charged that the accused was receiving payments fromthe Bank of Ceylon on account of the investigations done by him. Theamounts would have been found out had a thorough investigation been done.
The learned High Court Judge stated that “it is revealed from crossexamination that the prosecution came to know a source of income ofthe accused, that is, payments made to the accused by the Bank forthe investigations and inquiries done by the accused. The position ofthe prosecution is that they have made every endeavour to ascertainthe income which he had received from this source of income but theprosecution failed in its attempt to obtain the same. The prosecutionwas unable to obtain this information from the accused even thoughthe prosecution had requested the accused to declare all the knownincome. Under these circumstances even though the prosecution wasaware of a source of income from which the accused would have
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received some income but the prosecution was not aware of the amountof money received from this source and as this information is notforthcoming the prosecution has thought it fit to proceed with the knownincome ofthe accused”.
Admittedly, the Bribery Commission has been aware of somepayments received by the accused although they did not know theexact amount. If a thorough investigation was done there would havebeen no difficulty in finding out these amounts. There is no evidencethat such a thorough investigation was done. There is no evidence thatinquiries were made from the Bank with regard to these payments.The Commission has not made any specific inquiries from the accusedeither, with regard to the payments received from the bank on accountof his performing the services to the bank. The summary has beenprepared without considering these payments. Therefore the summaryof the income and the expenditure cannot be considered as somethingthat was prepared after a thorough investigation. To that extent learnedHigh Court Judge has erred in coming to the conclusion that
The prosecution made every endeavour to ascertain the incomewhich he had received but failed.
The prosecution was unable to obtain this information.
I am of the view that no endeavour has been made to ascertain theamount the accused had received on account of the investigationsdone for the Bank of Ceylon. The prosecution could have obtained thisinformation from the accused if such information was called for. Thereis no such evidence. When the Commission became aware that theaccused had received some payments from another source during therelevant period, there arose a duty on the part of the Commission tofind out those amounts before concluding that the accused had takenbribes.
Wimalaratne J in Wanigasekera vs. Republic of Sri Lanka <1,at 248
quoted Sinha J in C. S. D. Swami vs. The State that “the knownsource of income” must have reference to sources known to the
CA Kakulandara vs. Director General, Prevention of Bribery and Corruption 95
(Eric Basnayake, J.)
prosecution on a thorough investigation. Wimalaratne J held at 250that “the basic fact required to be proved in a prosecution under Section23A of the Bribery Act is that the accused acquired property whichcannot or could not have been acquired with any part of his sources ofincome or receipts known to the prosecution after investigation".
The burden lies with the prosecution to prove that the charges werefiled only after a thorough investigation of the known income of theaccused. If this was challenged the prosecution should satisfy courtthat such an investigation was done. If persons are brought beforecourt without such investigation, the prosecution would in effect beexpecting the defence to prove the innocence of the accused. Theprosecution must prove its case without leaving part of the evidence tobe provided by the accused.
In this case the prosecution admitted that they were aware of someunascertained income received by the accused. The Commission gotthis information from the Department of Agrarian Services where theaccused was employed. The Agrarian Service Department informedthe Commission that the information with regard to this income has tobe obtained by the Bank which made payments to the accused. TheCommission never made inquiries from the Bank with regard to thesepayments. The Commission did not inquire from the accused eitherparticularly with regard to these receipts. Then can one say that thecharges were brought after a thorough investigation? The prosecutionis not expected to conduct an incomplete investigation and get theaccused to prove his innocence. There is no evidence in this case thatthe accused did not corporate with regard to the investigation.
The Commission had written to the accused requesting him for theincome received by the accused with regard to the relevant period.There is no evidence that the Commission ever inquired from theaccused about these payments not accounted for. “It shall be deemed
that such property isacquired by bribery ….". The statute
has a presumption under the section. Admittedly it is a rebuttablepresumption. However one must also remember that these are casesinvolving criminal law and the burden lies with the prosecution. This
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presumption should be made applicable at the completion of a thoroughinvestigation by the prosecution, at which point there still remainamounts unaccounted for. What was the investigation conducted toascertain.the amounts received by the accused from the Bank onaccount of investigations the accused did to the Bank?
The Commission should refrain from bringing persons to court unlessthey are able to show that charges have been brought after a thoroughinvestigation. I am of the view that no attempt has been made toascertain the receipts of che accused on account of the investigationsdone to the bank during the relevant period. Therefore the prosecutionhas failed in its duty to bring a fair prosecution. The accused shouldsucceed as there is no case to answer. Hence this application isallowed and the accused is acquitted.
BALAPATABENDI, J. PICA — I agree.
Application allowed.Accused acquitted.