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DHARMADASA
v.DIRECTOR GENERAL, COMMISSION TO INVESTIGATEALLEGATIONS OF BRIBERY OR CORRUPTION AND ANOTHER
SUPREME COURTGUNASEKERA, J.
WIGNESWARAN, J„ ANDWEERASEKERA, J.
SC APPEAL No.. 28/2002H.C.M.C.A. (Colombo 60) 2000M.C. COLOMBO CASE No. B/6552/1/9617TH SEPTEMBER, 2002
Bribery Act – Conviction of a public servant for bribery – Section 19 of theBribery Act – Accused's right to impartial and adequate consideration of hiscase – Consequence of the Magistrate’s failutre to consider the accused's evi-dence in detail – Power of Appeal Court to consider such evidence in dis-missing appeal.
The accused appellant (“the accused”).was a. clerk attached to.the DistrictCourt of Matale. He was convicted of soliciting and accepting an illegal gratifi-cation of Rs.400/- as an inducement for obtaining the return of money fur-nished as bail on 4 counts alleging offences under section 19 of the BriberyAct. In addition to prosecution witnesses the accused himself gave evidence.His defence that the “illegal gratification” was forcibly introduced into histrouser pocket by the virtual complainant was rejected by the Magistrate. Inappeal, the High Court affirmed the conviction but observed that the Magistrateshould have given more consideration to the evidence of the accused. It was
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submitted that the High Court should not have upheld the conviction in view ofthe “culpable” failure on the part of the trial judge to have adequately andimpartially examined the evidence of the accused”
Held:
On a careful analysis of the accused’s evidence no credence whatever couldhave been given to the evidence of the accused. Accordingly the conviction ofthe accused should be affirmed.
APPEAL from the judgment of the High CourtCase referred to:
Chandradasa v. Queen 72 NLR 160 at 162
Jagathsena and others v G.D.D. Perera, Inspector, CriminalInvestigations and Mrs. Sirimavo Bandaranaike (1992) 1 Sri LR 371at 379
Ranjith Abeysuriya, PC. with Lanka de Silva for accused-appellant
Mallika Liyanage for 1st respondent
Riyaz Hamza, State Counsel for 2nd respondent
Cur.adv.vult
December 13, 2002
GUNASEKERA, J.
The Appellant Medagedera Dharmadasa has been chargedand convicted in the Magistrate’s Court of Colombo on four countsunder the Bribery Act.
that on or about the 16th of December 1996 at Matale,being a public servant to wit, a Clerk attached to the DistrictCourt of Matale did solicit a gratification of Rs. 400/- fromJayasunderage Sarny Appuhamy as an inducement orreward for his performing an official act in assisting him inobtaining the return of money furnished as bail, an offencepunishable under Section 19(b) of the Bribery Act.
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that at the time and place aforesaid and in the course ofthe same transaction being a public servant as aforesaid,did solicit the said gratification, an offence under Section19(c) of the Bribery Act.
that at the time and place aforesaid did accept the saidgratification, an offence punishable under Section 19(b)of the Bribery Act.
that at the time and place aforesaid being a public ser-vant did accept the said gratification, an offence underSection 19(c) of the Bribery Act.
Upon conviction after trial the Appellant had been sentencedto a term of one years’ rigorous imprisonment on each count whichhad been suspended for a period of 10 years and a fine of Rs.1500/- had been imposed in respect of each count.
The Appellant had preferred an appeal against the said con-viction and sentence to the Provincial High Court of Colombo andafter hearing the appeal the learned judge of the High Court hadaffirmed the conviction, and sentence imposed on the Appellant inrespec^ of counts 1 and 3 and acquitted him on counts 2 and 4.Further the learned Judge of the High Court in addition hadimposed a penalty of Rs. 400/- in respect of count 3 in terms of sec-tion 26 of the Bribery Act.
Upon a consideration of an application for special leave tothis Court against the judgment of the learned Judge of the HighCourt on 28.5.2002 special leave to appeal was granted upon thequestion as to whether the learned High Court Judge erred in lawin failing to set aside the Order of the learned Magistrate, in view ofthe latter’s failure to consider the shortcomings in the prosecutioncase as well as the evidence of the Accused-Appellant. At the trialin the Magistrate’s Court Jayasuderage Sarny Appuhamy,Premaratne Jayasundera, A.M.W.M. Amarakoon, R.M. Premaratneand A. Liyanage testified as witnesses for the prosecution whilstthe Accused Appellant gave evidence on his own behalf denyingthe allegations against him.
According to the evidence of the virtual complainant SarnyAppuhamy he had stood as surety for one of his brothers
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Premaratne Jayasundera, who had been charged in Case No.23099 in the Magistrate’s Court of Matale and had deposited a sumof Rs. 5000/- as bail on 13.10.1995 (the receipt issued for deposit-ing bail has been produced as P1). After his brother was acquittedin the said case he had made an application for the release of thebail money and had met the Accused-Appellant who was a Clerkattached to the Matale Magistrate’s Court in order to have the bailmoney released to him. He had asked him.to come on a Friday.When he met the Accused-Appellant on Friday the Accused-Appellant informed him that the learned Magistrate had not yetsigned the release Order. Thereafter he had met the Accused-Appellant for two months on every Friday but had been unsuc-cessful in getting the money released. On one occasion when hemet the Accused-Appellant he had told the complainant “these mat-ters cannot be done for nothing” and demanded a sum of Rs. 500/-to have the bail money released. Thereafter the virtual complainanthad made a wirtten complaint to the Bribery Commissioner whichcomplaint dated 28.11.1996 has been produced as ‘P2’. Thereaftersome officers from the Bribery Commissioner’s Department hadcome and met him at his home and questioned him as to whetherhe had signed the letter ‘P2’ and after he identified ‘P2’ as being thecomplaint,he made to the Bribery Commissioner, his statement hadbeen recorded and he had proceeded with the Bribery Officers tothe Matale Magistrate’s Court. Inspector Liyanage who led the raid-ing party had given him instructions in regard to what he should doin implementing the trap and had been asked to accompany PoliceConstable Premaratne who was to be identified as his brother. Fivehundred rupee notes, the serial numbers of which had been notedin the investigation note book had been handed over to the decoyP.C. Premaratne and the complainant had been asked to meet theAccused-Appellant and speak to him and further directed thatshould the Accused-Appellant ask for money that he was to collectit from the decoy Premaratne and hand it over to the Accused-Appellant. Although the complainant had gone to meet theAccused-Appellant on the 13th of December 1996 they had beeninformed that the Accused-Appellant was on leave and wouldreturn to work on Monday.
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On 16.12.1996 the Bribery Officers had met the virtual com-plainant at Matale as directed. Inspector Liyanage had given himthe same instructions that was given on the previous day and hadrequested him to accompany P.C. Premaratne to meet theAccused-Appellant and hand over the money if he asked for it.Accordingly on 16.12.1996 he had participated in the raid with theBribery Officers. When he accompanied PC. Premaratne theAccused-Appellant on seeing them had called the virtual com-plainant and asked him as to whether he had brought that, mean-ing money, in the presence of P.C. Premaratne, the decoy. TheAccused-Appellant had informed him that the cheque had not beensigned and for them to wait for a while stating that the Magistratewas still on the Bench and that he would get the cheque signedafter he gets down from the Bench. When he and P.C. Premaratnewere seated on a bench the Accused-Appellant had called themand asked them to go towards the canteen. When they went therethe Accused-Appellant had come near them and asked themwhether the money had been brought. When they replied in theaffirmative the Accused-Appellant is alleged to have said “give itsoon”. Then the decoy Premaratne had asked the Accused-Appellant not to take Rs. 500/- but to take Rs. 400/- to which theAccused-Appellant had agreed. P.C. Premaratne had given the vir-tual complainant four one hundred rupee notes which money hadbeen handed over to the Accused-Appellant. The Accused-Appellant had put that money in his shirt pocket and gone in to thelatrine and closed the door. At this point of time P.C. Premaratnehad signalled Inspector Liyanage and the other members of theraiding party who came near the latrine and waited there till theAccused-Appellant came out. As the Accused-Appellant came outInspector Liyanage had identified himself and asked the Accused-Appellant for the money that had been taken from the complainant.He had denied taking any money. On a search made I.P. Liyanagehad recovered the four marked hundred rupee notes together withsome other money from the Accused-Appellant’s possession andhe had got the Accused-Appellant to compare the numbers of thenotes recovered with the numbers noted in the investigation notebook and the Accused-Appellant had been arrested.
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P.C. Premaratne, the decoy, testified in regard to the instruc-tions given and the conversation that took place between Accused-Appellant, the virtual complainant and himself and with regard tothe acceptance of the money by the Accused-Appellant and therecovery of the money from the Accused-Appellant by InspectorLiyanage.
Inspector Liyanage testified before the Magistrate in regardto the instructions that were given and in regard to the manner inwhich the raid was conducted successfully. Apart from the afore-said witnesses, the virtual complainant’s brother PremaratneJayasundera testified in regard to the fact that the virtual com-plainant had stood as surety for him in the criminal case that hadbeen instituted against him and furnished bail in a sum of Rs.5000/-. After he was acquitted his brother had informed him that theofficers from the Bribery Department had arrested the Accused-Appellant when he took a sum of Rs. 400/- in order to release thebail money.
The Accused-Appellant in his evidence stated that he joinedas a Clerk in the Judicial Service in 1984 and was first posted to theDambulla Magistrate’s Court and was transferred to the MataleDistrict Court in January 1995. He further stated that the virtualcomplainant Sarny Appuhamy first met him in the first month of1996 when he came to see him in connection with the release of asum of Rs. 5000/- which had been deposited as bail money inrespect of a case where his brother Premaratne Jayasundera wascharged. According to him on that day he had obtained a photostatcopy of the bail deposit receipt, a five rupee stamp and a motionrequesting the release of the bail money. He had then prepared avoucher and got the virtual complainant to sign it. He also noted thevirtual complainant’s National Identity Card number and informedhim that he would post the cheque when it was ready. He went onto say that before the cheque was ready the virtual complainantcame to see him in about three days’ time thereafter and then heinformed the virtual complainant that this could not be done inabout two or three days’ time and it may sometimes take even fiveto six months and again informed the complainant that he wouldnotify when the cheque was ready. He further stated that the com-plainant came to see him on several occasions thereafter but was
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unsuccessful in getting the bail deposit released. In answer toCourt the Accused-Appellant stated that the complainant last cameto see him on 15th February 1996 and questioned him as towhether the said money was not being released at the instance ofthe Accused-Appellant’s brother who had a land case against thecomplainant’s brother in law and went away stating “that he wouldsee about it”. It was the evidence of the Accused-Appellant that thevirtual complainant came to see him next on the day he was arrest-ed i.e. on 16.12.1996 and questioned him as to whetherthe cheque 'was ready even on that day. He then checked up the registers andfound that the cheque had been written but the validity period of thecheque had expired and asked the virtual complainant to wait forsometime till the Magistrate adjourned for lunch so that he couldget the Magistrate to have the validity period of the cheque extend-ed. At about 1.30 in the afternoon he had instructed an office Peonto take the cheque that was on his table to the Magistrate when headjourned for lunch and to get the signature of the Magistrate.Thereafter he had proceeded towards the canteen with his lunchpacket in his hand and when he was climbing the steps leading tothe canteen the virtual complainant followed by another had comealong from behind and suddenly the virtual complainant had thrustsomething into his trouser pocket stating “keep this”. According tothe Accused-Appellant he had immediately examined what hadbeen thrust into his pocket and had found that it was some money.He had immediately put the money on the ground. At that stage hestated that Inspector Liyanage identified himself as an officer of theBribery Commissioner’s Department and asked him for the moneythat was taken from the virtual complainant. He totally denied thathe solicited and accepted a bribe from the virtual complainant. Hisposition was that he had been falsely implicated due to a grievancethe virtual complainant had owing to the land case between the vir-tual complainant’s brother in law and his brother.
At the hearing of this appeal it was submitted by learnedPresident’s Counsel appearing for the Accused-Appellant that inthe judgment of the learned Magistrate there had been a total fail-ure to give any consideration to the sworn evidence of the Appellantand that the only reference thereto was an assertion in the penulti-mate sentence in the judgment that the defence evidence had
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failed to demolish or to raise a reasonable doubt in the prosecutioncase, and contended that as observed by Samarawickrema J. inthe case of Chandradasa v. Queen <1) that “an impartial and ade-quate consideration of his case by a judge of fact is the right of• every accused”. In the present case it was the submission of thelearned President’s Counsel that the Accused-Appellant had beendeprived of that right secured to him by the total failure of thelearned Magistrate to have considered his own evidence.
It was also submitted by learned President’s Counsel thateven the learned Judge of the High Court having expressly statedthat the learned Magistrate should have examined the evidence ofthe Accused-Appellant erred in upholding the conviction of theAccused-Appellant in spite of the culpable failure on the part of thetrial Judge to have adequately and impartially examined the evi-dence of the Accused-Appellant.
It was further submitted by the President’s Counsel thatdespite the purported acceptance of the evidence of the prosecu-tion witnesses by the trial Court the Appellate Courts are notrelieved of the duty of testing that evidence both intrinsically andextrinsically as observed in Jagathsena and others v. G.D.D.Perera Inspector, Criminal Investigations Department and Mrs.Sirimavo Bandaranaike <2>.
It was the contention of learned Counsel for the 1 st respon-dent that the learned Magistrate who had the opportunity of seeing,hearing and observing the demeanour of the witnesses at the trialhad quite correctly rejected the evidence of the Accused-Appellantalthough he had not set out in detail the reasons for doing so. It wassubmitted by learned Counsel that none of the positions taken qpby the accused in his evidence relating to the reasons for his beingfalsely implicated, regarding the money being thrust into his pocketby the virtual complainant had even been suggested to any of thewitnesses who testified for the prosecution at the trial. LearnedCounsel for the 1st respondent further submitted that the learnedJudge of the High Court had observed that the Magistrate shouldhave given more consideration to the evidence of the accusedbefore rejecting it. In his jugdement the learned High Court Judgehad dealt with the evidence led and had considered the contradic-tions in the evidence of the virtual complainant and that of the
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decoy P.C. Premaratne and had no hesitation in accepting the evi-dence of the prosecution witnesses and upholding the conviction ofthe Accused-Appellant in respect of counts 1 and 3.
Having regard to the submissions made, I am of view that itwould be useful to examine the evidence of the Accused-Appellantin some detail to consider as to whether that evidence is credible.He commences the evidence by stating that the virtual complainantfirst met him in the first month of 1996 in order to get the bail moneyreleased. According to him about three days thereafter the com-plainant had come again and on several days and the last date thathe came was on the 15th of February 1996 before he was arrest-ed on 16.12.96. During the course of the trial the record in M.C.Matale 230/99 was produced marked P5. The journal entries of thatcase record reveals that the virtual complainant’s brother had beenacquitted only 20.3.1996. Thus in regard to the date on which thevirtual complainant first met him and the answer given to Court thathe met him last time on 15.2.1996 before he was arrested on
does not bear scrutiny.
Although the Accused-Appellant in his evidence had taken upthe position that he got the virtual complainant to give him a motionrequesting the release of the money on the first day itself when hemet him, according to the motion P5A produced in evidence whichrelates to the release of the bail deposit it is to be observed that itis dated 27.5.1996. Thus it appears that his evidence in regard tothis question is unacceptable.
Although the Accused-Appellant had taken up the positionthat he has been falsely implicated owing to a land case that hisbrother had with the virtual complainant’s brother in law, it is to benoted from document P2, that the written complaint made by thevirtual complainant to the Bribery Commissioner is dated
and the journal entries in Case No. D.C. Matale L5293which were produced marked VI by the accused himself shows thatthe land case between the Accused-Appellant’s brother and thebrother in law of the virtual complainant had been instituted on the24th of September 1998, nearly two years after the written com-plaint by the virtual complainant to the Bribery Commissioner.Another significant factor that is to be noted is that although in theevidence of the Accused-Appellant, he has testified that he would
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notify the virtual complainant when the cheque was ready, it is to beobserved that the application made by the virtual complainant on
requesting the release of bail money has been jour-nalised only on 25.10.1996 as evidence by P5B on which thelearned Magistrate appears to have made Order on the same dayto file the application and to release the bail money upon the sure-ty being identified. It is to be further noted that the cheque forRs. 5000/- in favour of the virtual complainant, P3, although hadbeen written on 30.10.1996 had been kept with the Accused-Appellant without it being posted to the virtual complainant or with-out notifying him that the cheque was ready until 16th December1996 (the date of the trap) on which date the period of validity hadbeen extended by 30 days.
For the reasons stated I am of the view that no credencewhatever could have been given to the evidence of the Accused-Appellant. Accordingly, I affirm the conviction of the Accused-Appellant on counts 1 and 3 and the sentence imposed by thelearned Judge of the High Court but direct that the period of sus-pension of the term of imprisonment imposed in respect of the twocounts on which he had been convicted be reduced to a period offive years from ten. Subject to the above variation the appeal is dis-missed.
WIGNESWARAN, J -I agree.
WEERASURIYA, J. -I agree.
Appeal dismissed subject to variation of sentence.
