Nadaraja v.Republic of Sri Lanka
1976 Present; Wimalaratne, J., Weeraratne, J, and Colin-Thome, J.
K. NADARAJA, Appellant and THE REPUBLIC OF SRI
S. C. 76/75—D. C. Colombo B/233
Bribery Act—Interpretation of the phrase “ a person who while having
dealings of any hind with the Government ”—Bribery Act. S. 21.
Section 21 of the Bribery Act provides inter alia that a publicservant who solicits or accepts any gratification from a personhaving dealings of any kind with the Government through anydepartment, office or establishment of the Government shall beguilty of an offence punishable under the Bribery Act.
One K. Weerasinghe Banda was the occupier of Lot 71 in HulunduOya Colony, Moneragala, on a permit issued under the LandDevelopment Ordinance. He had a dispute with one Mutunayake,the oecupier of the adjoining Lot 70, regarding the obstruction ofthe channel through which water was supplied to his lot throughlot 70. He sent at least two petitions to the Government Agent,Moneragala in 1972 and a further petition to the Minister ofAgriculture in 1973. The Government Agent referred these petitionsto the District Land Officer, who directed the accused, a KachchenSurveyor to draw up a feasibility plan for the purpose of givingwater to lot 71. When the accused went to the land on 20.11.73.Weerasinghe Banda felt that the accused was going to take a decisionunfavourable to him, and he also got the impression that theaccused “ was angling for a bribe He therefore went to theaccused’s house on 25.11.73 and offered the accused a bribe : andthereafter made a complaint to the Bribery Department. A trap waslaid in consequence of which Weerasinghe Banda offered and theaccused accepted a sum of Rs. 450 on 30.11.73. The officers of theBribery Department rushed up and arrested the accused andrecovered from his possession the marked Rs. 450.
Held : That Section 21 was clearly intended to penalise acts ofBribery by persons who have transactions of any kind with theGovernment. A person who is in occupation of an allotment ofland on a grant or permit issued under the Land DevelopmentOrdinance will necessarily have numerous dealings with GovernmentDepartments in respect of that allotment. The Land DevelopmentOrdinance itself confers rights and imposes duties on an allottee. Inthe exercise of those rights and in the performance of his obligationshe must necessarily have recourse to the Government Agent. Land
WIMAJ.AHATNE, J. — Nadarajah v. Republic of Sri Lanka
Development officers, appointed under Section 6 of that Ordinanceare empowered to perform the functions assigned to GovernmentAgems under that Ordinance. It was by virtue of those powers thatthe Land Development officer requested the accused to prepare afeasibility plan. There can, therefore, be no doubt that WeerasingheBanda was a person who had dealings with the Government throughthe Moneragala Kachcheri. The accused, having solicited andaccepted a bribe from Weerasinghe Banda committed an offencepunishable under Section 21 of the Bribary Act.
^PPEAL from a judgment of the District Court, Colombo.
V. S. A. Pullenayagam with L. F. Ekanayake, for the Accused-Appellant.
Priyantha Perera, Senior State Counsel, for the State.
July 28, 1976. Wimalaratne, J.—
One Kempitiya Weerasinghe Banda was the occupier ofLot 71, in Hulundu-oya colony, Moneragala, on a permitissued under the Land Development Ordinance (Cap. 464). Hehad a dispute with one Mutunayake, the occupier of theadjoining Lot 70, regarding obstruction of the channel throughwhich water was supplied to his Lot through Lot 70. He sentat least two petitions to the Government Agent, Moneragala in
and a further petition to the Minister of Agriculture in
The Government Agent referred these petitions to theDistrict Land Officer, who directed this accused, a KachcheriSurveyor to draw up a feasibility plan for the purpose of givingwater to Lot 71.
When the accused went to the land on 20.11.73, WeerasingheBanda felt that the accused was going to take a decisighunfavourable to him, and he also got the impression J:hat tneaccused “ was angling for a bribe. ” He therefore went to theaccused’s house on 25.11.73 and offered the accused a bribe. Theaccused wanted Rs. 500 to prepare the plan, but the amountwas subsequently reduced to Rs. 450. Weerasinghe Banda madea complaint to the Bribery Department and accompanied theofficers of that Department to Moneragala on 27.11.73. A trapwas laid in consequence of which Weerasinghe Banda offered,and the accused accepted, the sum of Rs. 450 on 30.11.73. Theofficers of the Bribery Department rushed up and arrested theaccused, and recovered from his possession the marked Rs. 450.
The accused was charged on four counts under the BriberyAct (Cap. 26). The 1st charge was that he solicited this grati-fication as an inducement or reward for his performing anofficial act, to wit : preparing a plan of Lots 70 and 71 at Hulun-du-oya colony, an offence punishable under Section 19. The2nd charge was that he solicited this gratification from Weera-singhe Banda, a person having dealings with the Government
WIMALARATNE, J. — Nadaraja v. Republic of Sri Lanka
through an office of the Government, to wit : the MoneragalaKachcheri, an offence punishable under section 21. The 3rd and4th charges were that he accepted this sum of Rs. 450 fromWeerasinghe Banda, offences punishable under Sections 19 and21 respectively.
The accused admitted having accepted this money, but hisdefence was that this was consideration for the execution byhim of another job, namely, the preparation of a survey planof a different land at a place called Marawa. It was to be a“ private job ” which he was going to entrust to a privatesurveyor to whom he was going to make payment. The defencealso took up the position that Weerasinghe Banda was not aperson who had dealings with the Government, within themeaning of section 21 and that the charges under counts 2 and 4could not in any event be maintained.
The learned District Judge, convicted the accused on all fourcounts and sentenced him to a term of 3 years rigorous impri-sonment and a fine of Rs. 500 (in default 5 months rigorousimprisonment) on each count. He also imposed a penalty ofRs. 450 in default a term of 4 months rigorous imprisonment.The substantive jail terms were to run concurrently, whilst thedefault sentences were to run consecutively.
Learned Counsel for the accused-appellant has referred us tothe contents of the conversation between the accused and thecomplainant on the occasion when the money was given. Accor-ding to the ‘ summary of facts ’—
“ At the bus stand Weerasinghe Banda told the accused—* I have promised to sell it, so please do it soon for me. Icannot sell it if the boundaries are not marked. ’ The accusedthen promised to come on the 4th. Weerasinghe Banda saidthe 4th was too late, whereupon the accused promised to comeon the 3rd. Then referring to the land in the colony Weera-singhe Banda said : —
‘ Sir, that job. ’
The accused said : —
‘ I will attend to that too ’”
The evidence of Weerasinghe Banda that there were two jobsto be done by the surveyor regarding the dispute between lots70 and 71, namely, the plotting out of the channel and the demar-cation of the boundary between the two lots, was supported bythe ^petitions P2 and P3 to the Government Agent, where thecomplainant referred to these two matters. On the other hand,the accused’s version that the other jobs referred to the survey
WIMAX.A RATNE, J. — Nadaraja v. Republic of Sri Lanka
of the land at Marawa was not supported by any other evidence,not even of evidence of an application made or a letter writtenby Weerasinghe Banda to any person in authority showing somesort of preparation to purchase a lot in Marawa. The learnedDistrict Judge has therefore come to the correct conclusion thatthe bribe was solicited and accepted in connection with the surveyof lots 70 and 71 in Hulundu-oya colony.
The next point taken up by learned Counsel for the appellantwas the applicability of section 21 to the facts of this case. The.relevant portion of section 21 reads as follows : —
* A person—
who, while having dealings of any kind with the Govern-
ment through any department, office or establishmentof the Government, offers any gratification to anypublic servant employed in that department, office orestablishment, or
who, within one year before or after his having dealings
of any kind with the Government through any depart-ment, office or establishment of the Government, offersany gratification to any public servant employed in thatdepartment, office or establishment, or
who, being a public servant, solicits or accepts any grati-fication the offer of which is an offence under thissection ;
shall be guilty of an offence punishable with rigorousimprisonment for a term of not more than seven yearsand a fine not exceeding five thousand rupegs : ”
His contention is that Weerasinghe Banda was a person whothad merely sent a petition to the Government Agent, and was"therefore not “ a person who had dealings ” with the Govern-ment. He refers to the dictionary meaning of the words “ dealwith ”—a person who deals with is a person who has “ business"transactions with ”. It is therefore essential that for this sectionto come into operation the person offering a gratification shouldbe a person who has business transactions with the Government.Tie submits that sub-section (b) by limiting the period of culpa-bility to one year before or one year after having dealings withthe Government, supports his contention that this section should"be limited to the offer of a gratification by persons having businesstransactions only.
Learned Senior State Counsel on the other hand submits thatthe use of the words “ person who, having dealings of any kind ”,-was intended to include persons who had not only business
WIMAJLARAT3STE, J. — Nadaraja v. Republic of Sri Lanka
transactions, but had dealings of any kind, which called for someaction on the part of a Government department. WeerasingheBanda paid an annual rent in respect of his holding ; he had adispute with his neighbour who also had an allotment fromGovernment. As a result of Weerasinghe Banda’s complaintssome action was called for by the Government. He was thereforea person who had dealings with the Government through theMoneragala Kachcheri.
A guide to the interpretation of section 21 is provided bysections 17, 19 and 20. Section 17 makes it an offence to offer anygratification to a public servant (and likewise, for a publicservant to solicit or accept a gratification) as an inducement orreward to assist in the promotion of the procuring of any contract,or in the execution thereof, or in the payment of the price stipu-lated therein. Section 19 penalises the acts of persons who offergratifications to public servants (and likewise, the solicitationor acceptance of gratifications by public servants) for the purposeof performing, expediting, hindering or preventing the trans-actions of any business. Section 20 penalises the offer (andlikewise, the solicitation or acceptance) of gratifications as areward for such transactions as the payment of claims, theprocuring of appointments in any office and the securing ofgrants, leases and other benefits from the Government.
These three sections are, in my view, intended to penalise theacts of bribery by or in respect of public servants in regard tothe main types of dealings the public may have with Govern-ment departments. The next section, namely section 21 wastherefore clearly intended to penalise acts of bribery by personswho have transactions of any other kind with the Government.
A person who is in occupation of an allotment of land on agrant or permit issued,under the Land Development Ordinance(Cap. 464) will necessarily have numerous dealings withGovernment departments in respect of that allotment. The LandDevelopment Ordinance itself confers rights and imposes dutieson allottees. In the exercise of those rights and in the perfor-mance of his obligations he must necessarily have recourse tothe Government Agent. Land Development Officers, appointedunder section 6 of that Ordinance are empowered to perform thefunctions assigned to Government Agents under that Ordinance.It was by virtue of those powers that the Land Developmentofficers requested the accused to prepare a feasibility plan.There can, therefore, be no doubt that Weerasinghe Banda wasa person who had dealings with the Government through the-
Perumal v. Nanayakkara
Moneragala Kachcheri. The accused, having solicited andaccepted a bribe from Weerasinghe Banda, committed offencespunishable under section 21 of the Bribery Act.
The conviction of the accused on all four counts is thereforeaffirmed.
We are of the view that the sentence of 3 years rigorousimprisonment imposed on the accused is excessive in thecircumstances of this case. We therefore substitute a sentence ofone year’s rigorous imprisonment and a fine of Rs. 500 on eachcount, the sentences be run concurrently. We also impose apenalty of Rs. 450.
Weeraratne, J.—I agree.
Colin Thome, J.—I agree.
Conviction affirmed.Sentence varied.
K. NADARAJA, Appellant and THE REPUBLIC OF SRI LANKA, Respondent