DIRECTOR GENERAL, COMMISSION TO INVESTIGATE ALLEGATIONS OF BRIBERY AND COR

047-SLLR-SLLR-2005-V-2-DIRECTOR-GENERAL-COMMISSION-TO-INVESTIGATE-ALLEGATIONS-OF-BRIBERY-AND-COR.pdf


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DIRECTOR GENERAL, COMMISSION TO INVESTIGATEALLEGATIONS OF BRIBERY AND CORRUPTIONVSS.B. DISSANAYAKECOURT OF APPEAL,
BALAPATABENDI, JBASNAYAKE, J.
CALA 299/2005HIGH COURT OF COLOMBOB/1516/2004NOVEMBER 9, 28, 2005
Commission to investigate Allegation of Bribery and Corruption Act, No. 19 of1954 – Sections 4, 13(2), 23A(1), 23(A)3- indicated – After closure of case for theProsecution accused was acquitted – Code of Criminal Procedure No. 15 of1979 Sections 200(1), 340 – proving of Basic fact Burden – Unknown income- Evidence Ordinance – Section 114- Presumption – Burden of proof – CitizenshipAct – Judicature Act -9-13
The accused respondent was indicted on a charge of committing an offenceunder section 23A (1) of the Bribery Act and thereby being guilty of an offencepunishable under section 23A(3).
After the evidence of the Chief Investigating Officer of the Bribery Commissionwas led, the High Court Judge acquitted the accused without calling for adefence. The Bribery Commission sought leave to appeal against the saidorder.
Held :
The burden is on the prosecution to prove the 'basic fact’ that the knownincome of the Accused Respondent was less than that of his knownexpenditure during the alleged period, that the accused respondentaccquired property which cannot or could not have been acquired with anypart of his income during the said period.
The case for the prosecution was starved of evidence to prove the basicfact contemplated by section 23 (A) (1), hence no presumption could havebeen drawn against the accused respondent to call for his defence
CA Director General, Commission to Investigate Allegations of Bribery 259
and Corruption vs S. B. Dissanayake (Jagath Balapatabendi, J.)
There was infact no evidence presented to court by the investigations,it had also been revealed that certain legitimately earned income of theaccused – respondent • which were included in Document VI prepared bythe witness, were not included in the document “X" prepared by the BriberyCommission.
There is a difference between a presumption airising under section 114Evidence Orinance and the presumption arising under section 4 of thePrevention of Corruption Act.
APPLICATION for leave to appeal under section 15 Judicature Act read withsection 340 of the Code of Criminal Procedure Act, No. 15 of 1979 andsection 13(2) of the Commission to Investigate Allegation of Bribery orCorruption Act, No. 19 of 1994.
Cases referred to :
Attorney – General vs. R. M. Karunaratne, SC 16/74, DC Colombo No. B/75, SCM, 17. 06.77
Wanigaskera vs. Republic of Sri Lanka, 79 NLR 241 at 251
State of Madras vs. Naidyanthan, 1958 AiR SC 61
Attorney – General vs. Ratwatte, 72 CLW 93
Attorney – General vs. Baranage, 2003 Spl. Sri. L. R. LR 340
Dr. Ranjith Fernando with Ms. Deshani Jayatilake and Amila Udayanganieand Asita Anthony for the applicant – appellant.
D.S. Wijesinhe, P. C. with Kolitha Dharmawardena and Chandana Pererafor trhe accused – respondent.
Cur. adv. vult
JAGATH BALAPATABENDI, J.This is an application for leave to appeal under section 15 of the JudicatureAct read with the provisions of section 340 of the Code of Criminial ProcedureAct, No. 15 of 1979 and section 13 (2) of the Commission to Investigateallegations of Bribery or Corruption Act No. 19 of 1994.
The Accused – Respondent was indicted in the High Court of Colomboon a charge of committing an offence under section 23A(1) of the BriberyAct and thereby being guilty of an offence punishable under section 23A(3)of the Bribery Act giving details of the offence committed in the schedulesmarked as ‘A’ and ‘B’ annexed to the indictment.
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At the close of the case for the prosecution on an application by thecounsel for the accused respondent under section 200(1) of the Code ofCriminal Procedure Act, the learned High Court Judge having heard bothcounsel, acquitted the accused respondent without calling for a defenceon 19th July 2005.
This application for leave to appeal is preferred by the Director Generalof the Commission to Investigate Allegations of Bribery or Corruption againstthe Judgment of the learned High Court Judge dated 19th July 2005.
Counsel for both parties invited Court to make an order on the writtensubmissions filed on the question of leave to appeal. Hence having gonethrough the written submissions filed by both parties the Court arrives at aconclusion on the following findings.
Provisons of the section 23A(1) of the Bribery Act reads as follows:-
Where a person has or had acquired any property on 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 hadbeen converted ; or
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; or
property to which any part of his known receipts has or hadbeen converted,
Then, for the purposes of any prosecution under this section, it shall bedeemed, until the contrary is proved by him, that such property is or wasproperty which he has or had acquired by bribery or to which he has or hadconverted any property acquired by him by bribery.
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and Corruption vs S. B. Dissanayake (Jagath Balapatabendi, J.)
It is obvious that the above mentioned section required to prove by theprosecution, that the accused acquired property which cannot or couldnot have been acquired with any part of his income or receipts known tothe prosecution after thorough investigation; the prosecution is not requiredto prove that the acquisitions were made with income or receipts frombribery. Once the above ’basic fact’ fact is proved by the prosecution, arebuttable presumption could be drawn against the accused and it shallbe deemed until the contrary is proved by the accused; that such propertyis 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.
(1)
In the case of Attorney- General Vs. R. M. KarunaratneSamarawickrema, J. observed as follows:- “to require proof that such anindividual has infact received a reward would be to defeat the purpose pfsection 23(A) which is designed against a person in respect of whomthere is no proof of the actual receipt of a gratification, but there ispresumptive evidence of bribery.”
(2)
In the case of Wamgasekera /s Republic of Sri Lanka it is stated asfollows” The Supreme Court of India has taken the view that a presumptionof law cannot be successfully rebutted by merely raising a probability,however reasonable, that the actual fact is the reverse of the fact which ispresumed. Something more than a reasonable probability is required forrebutting a presumption of law. The bare word of the accused is notsufficient and it is necessary for him to show that his explanation is soprobable that a prudent man ought, in the circumstances, to have acceptedit. This view is based on the difference between a presumption arisingunder section 114 of the Evidence Ordinance, and the presumption arisingunder section 4 of the Prevention of Corruption Act. In the former case it isnot obligatory upon the court to draw a presumption as to the existence ofone fact from the proof of another fact, where as in the latter case, theCourt has no alternative but to draw the presumption”. "See State of MadrasVs. Naidyanathan lyer,(3>.
In Karunaratne’s case (supra) Samarawickrema, J expressed a view,although an obiter. “What a person (accused) has to prove is that a propertywas not acqired by bribery or was not property to which he had convertedany property acquired by bribery. The ordinary and usual method by whicha person (accused) may prove this is by showing the source with which heacquired the property and demonstrating that it was not by bribery. As
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this is a matter in which the onus is on the accused person, it will besufficient if he establishes it on the balance of probabilities."
“If the Court is reasonably satisfied, that is, satisfied to the extent thatit can say ‘we think it more probable than not that the accused acquiredthe property by proceeds other than income or receipts from bribery’;then the accused is entitled to an acquittal.”
In the instant case, after the prosecution case was closed, on theapplication made by the counsel for the accused respondent the learnedTrial Judge acting under the provisons of section 200 (1) of the Code ofCriminal Procedure Act, has acquitted the accused – respondent withoutcalling for his defence, for the reasons given in her Judgement.
Section 200(1) of the Code of Criminal Procedure Act is as follows:-“when the case for the prosecution is closed, if the Judge wholly discreditsthe evidence on the part of the prosecution or is of opinion that suchevidence fails to establish the commission of the offence charged againstthe accused or of any other offence of which he might be convicted onsuch indictment he shall record a verdict of acquittal; if however the Judge,considers that there are grounds for proceeding with the trial he shall callupon the accused for his defence.”
The words used in the above mentioned section 200(1) signify the scopeof the function^giving a wide discretion and power to the judge. In thecase of Attorney – General Vs. Ratwatte(4) provides an example of a situationwhere the judge has wholly discredited the evidence for the prosecution.The first accused in that case, at the time of the alleged offence was thePrivate Secretary of the Prime Minister of Ceylon. He was indicted foraccepting a bride of Rs. 5000/- (given in two instalments) as an in ducementfor obtaining a grant of citizenship in terms of the Citizenship Act to aMalaysian National. According to the evidence of the prosecution witness,on the first occasion a sum of Rs. 1000/- was openly given to the 1staccused in his house and the latter, in the presence of other unknownpersons who had come with the person who gave the bribe, has put themoney into his shirt pocket. Again two days later the same person hasgiven Rs. 4000/- to the first accused at the latter’s ancestral house and'even on that occasion the accused has openly accepted the money in thepresence of persons unknown to him. At the end of the prosecution case
Director General, Commission to Investigate Allegations of Bribery 263
and Corruption vs S. B. Dissanayake (Jagath Balapatabendi, J.)
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the trial Judge, acting under section 210(1) of the Criminal ProcedureCode of 1898, (which is similar to section 200(1) of the present Code) hasacquitted the first accused without calling for his defence.
In his reasons the trial Judge has stated as follows “On both occasionsthe 1 st accused does not appear to have been in any way hesitant aboutaccepting the money. He does not appear to have been anxious to concealthe acceptance from any person who may have seen it. He does not takethe precaution even of accepting the money without being seen by theunknown persons. It can not be said he is unaware of the seriousness ofthe offence he is committing. He does not seem to care as to whether heis led into a trap or not. I do not think any ordinary person would accept abribe in such a manner, least of all a person in the position of 1 st accusedwho holds such a responsible post under the Government.” The Learnedtrial Judge has therefore concluded that “no reasonable Court can acceptthe oral testimony of papuraj that this gratification was given to the 1staccused.” In appeal the Supreme Court accepted the correctness of thisreasoning and dismissed the appeal filed against the acquittal of the 1 staccused.
In the case of Attorney – Genera/ l/s Baranage51 Amaratunga, J observedas follows:-
“In a trial by a Judge without a jury the Judge is the trier of facts and assuch at the end of the prosecution case in order to decide whether heshould call upon the accused for his defence he is entitled to considersuch matters as the credibility of the witnesses, the probability of theprosecution case, the weight of evidence and the reasonable inferencesto be drawn from the proven facts. Having considered those matters, if theJudge comes to the conclusion that he cannot place any reliance on theprosecution evidence, then the resulting position is that the judge haswholly discredited the evidence for the prosecution. In such a situationthe Judge shall enter a verdict of acquittal".
Even if the judge has not wholly discredited the prosecution evidence,the words in the section that the “Judge is of opinion that such evidencefails to establish the commission of the offence charged against theaccused or any other offence of which he might be convicted on suchindictment”, give him the power to enter a verdict of acquital without callingfor the defence.
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Now I would like to examine the Judgment in the instant case to seewhether the learned Trial Judge had erred on questions of law and/ormisdirected herself in relation to the matters of facts, as alleged by theapplicant – appellant.
At the outset, I would like to reiterate the very words used by the LearnedHigh Court Judge in her Judgdment for her conclusion, viz "It is my viewthat according to the findings which I have made both of law and fact theCommission had failed to establish a prima facie case against the accusedthat there were unknown income and receipts not from legitimate sourcesconstituting under section 23AoftheAct. If there has not been any proofas to the existence of any sources of income unknown to the prosecutionafter investigation then the accused cannot be asked to submit a defenceon his behalf for there is no case against him to defend. I therefore do notcall for the defence, and I order the acquittal of the accused from all thecharges.”
Hence, It is apparent that the finding of the learned High Court Judge onthe evidence led, was that the prosecution (Applicant – appellant) afterinvestigation had failed to establish or put in issue that there had been inexistence any sources of income of the Accused respondent, unknown tothe prosecution (applicant – appellant) to call for a defence from the accusedrespondent. Thus no presumption could have been drawn against theaccused respondent as envisaged by the provisions of the section 23A ofthe Act.
As aforsaid learned High Court Judge had expressed her opinion to thiseffect in her Judgement. The Judges employ varying language to expresstheir opinion.
In the instant case the only witness called by the prosecution (theapplicant appellant) was the chief Investigating Officer of the BriberyCommission Epa Kankanange Don Chandrapala. He had commenced aninvestigation against the accused – respondent on a letter received by theBribery Commission from one Dharmadasa ofVeyangoda. On inquiriesinto the said letter the witness had found that there was no such personand their was no such address as stated in the said letter.
The burden is on the prosecution (applicant appellant) to prove the‘basic fact’ that the known income of the accused – respondent was less
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and Corruption vs S. B. Dissanayake (Jagath Balapatabendi, J.)
than his known expenditure during the period between 31.3.1995 to
(as per indictment) i.e, that the accused – respondent acquiredproperty which cannot or could not have been acquired with any part of hisknown income during the said period.
The learned High Court Judge having considered the evidence led, hadcorrectly come to a finding that the contents of the documents p1 to P13(Marked by the prosecution, as to the income of the accused respondentcould be classified as “known income”, since admitted by the witnessChandrapala. The contents of the docements P 14 to P22 (marked by theprosecution) are also found to be true on investigation carried out by thewitness Chandrapala.
The contensts of the document marked as "X” prepared and relied onby the Bribery Commission (Applicant – appellant) shows the total incomeas Rs. 19, 736,11.84 and total expenditure as Rs. 48,333123.52 ;Theerefore the expenditure over income of the accused – respondent wasRs. 28,597,003.68. However the only witness Chandrapala, had statedthat he was unaware of the preparation of it, and had no knowledge of itscontents.
In cross examination of the witness Chandrapala, the documents VIand V2 were marked by the accused – respondent which were in thecustody of the Bribery Commission. The documents VI and V2 had beenprepared by the invetigating officers Chandrapala and Nandasenarespectively in connection with this case and had been submitted to theBribery Commission and VI shows the total known income of Rs. 54,667, 685.87 and known expenditure of Rs. 30,203,915.03 therefore knownincome over expenditure of the accused – respondent was Rs.24,463,770.84. The document ‘X’ shows a contrasting position of the totalexpenditure over the total income of the accused – respondent as beingRs. 28,597,003.68 as against the document VI. It had been revealed thatcertain legitimately earned income of the accused respondent which wereincluded in the document VI prepared by the witness were not included inthe document ‘X’ prepared by the Bribery Commission.
On analysis of the evidence of the prosecution case, the learned HighCourt Judge had correctly come to a finding and stated in the judegmentas follows:- “Therefore in the present case, I find that there was cogentand compelling evidence to establish that the income which the accusedhad received was within the statutory concept of “known income” which
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did not constitute an offence under the Act. This was a finding made bythe investigators employed by the Commission. There was in fact noevidence presented to the court of a finding of any “unknown income bythe investigators. Moreover, in his evidence, the principal investigatorChandrapala, admitted to Court that he found no evidence to establishthat the accused had any ‘unknown income’. Further Chandrapala, whowas the only witness for the Commission informed Court that he hadmade a Report to the Bribery Commissioner that there was no evidence ofany ‘Unknown income’.
Further, the learned High Court Judge had come to a conclusion, as follows- “It was clearly evidenced by the sole witness for the commission that allmoneys and acquistions of the accused were from the sources of incomeclaimed by the accused. When the witness for the Commission concludedhis evidence by establishing that there was no money or property acquiredby this accused which were from unknown sources, and not by legitimatemeans there is no obligation upon the accused to prove that the propertyor money he had received and acquired were not by bribery.”
It is pertinent to note that case for the prosecution was starved of evidenceto prove the ‘basic fact’ contemplated by the provisions of the section23A (1) of the Bribery Act, hence no presumption could have been drawnagainst the accused respondent to call for his defence.
As mentioned above, I cannot see any other conclusion that the learnedHigh Court Judge could have arrived at than the one set out in her judgmentfor the reasons mentioned therein.
The ultimate conclusion of the learned High Court judge was correct inlaw and on the facts. I am of the view that the learned Hight Court Judge’sdecision to acquit the accused appellant without calling for his defencewas correct.
Thus, the application for leave to appeal is of no merit.
BASNAYAKE, J. — I agree
Leave to appeal refused. The application is dismissed.