039-SLLR-SLLR-1998-V-3-KARUNARATNE-v.-ATTORNEY-GENERAL.pdf
CA
Karunaratne v. Attorney-General
261
KARUNARATNE
v.ATTORNEY-GENERAL
COURT OF APPEALGUNASEKERA, J., (PICA)
DE SILVA, J.
C.A. NO. 167/94
C.COLOMBO NO. B 785/92MARCH 20TH, 25TH, 27TH, 1997MAY 14TH, 1997
Bribery Act -S. 19, 19 (c), S. 89 (a) – Proof beyond reasonable doubt – Solicitationon dates specified in the Indictment – Evidence Ordinance – S. 154.
Held:
Even if one can say on the evidence that there was a willingness to accept anamount on the evidence led there is no positive evidence in regard to the datewhen that willingness had been expressed.
APPEAL from the High Court of Colombo.
D. S. Wijesinghe PC with P. H. Manatunge for accused-appellant.
Palitha Fernando SSC for the Attorney-General.
Cur. adv. vult.
May 14, 1997.
GUNASEKERA, J. (P/CA)
In this case the accused-appellant Mahara Lekamlage Kularatne wasindicted on 4 counts of Bribery.
(1) that on or about 15.03.1991 at Anuradhapura being a publicservant to wit a School Building Inspector did solicit agratification of a sum of Rs. 11,050 from D. W. Athulathmudalias a commission of 5% of Rs. 221,000 as a reward forperforming an official act to wit the approval of thepayment on account of the work performed in respect ofthe buildings erected in the Galenbindunuwewa educationalcircuit punishable under section 19 of- the Bribery Act.
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at the time and place set out in count (1) and in the courseof the same transaction being a public servant to wit a SchoolBuilding Inspector that he did solicit a sum of Rs. 11,050being a 5% commission of Rs. 221,000 which was paid asan advance on the contract punishable under section 19 (c)of the Bribery Act.
that on or about 02.04.1991 at Anuradhapura that the accusedappellant did accept a sum of Rs.10,000 from D. W.Athulathmudali in order to perform an officilal act to wit toapprove the payment in respect of a building erected in theGalenbindunuwewa Educational Circuit punishable undersection 19 of the Bribery Act.
at the time and place set out in count 3 that he did acceptRs. 10,000 from the aforesaid D. W. Athulathmudalipunishable under sec. 19 (c) of the Bribery Act.
After trial he was convicted on all 4 counts of the indictment on07.06.1994 and sentenced to a term of 2 years, rigorous imprisonmentin respect of each count which sentence was suspended for a periodof 7 years. In addition a fine of Rs. 10,000 in respect of each countwas imposed together with a penalty of Rs. 10,000 and in defaultof the payment of fine an additional term of 2-year rigorousimprisonment was imposed.
The evidence led for the prosecution was that of the virtualcomplainant D. W. Athulathmudali and P. H. Sunil Bandara, BuildingsEngineer L. Herath and H. K. Senaratne the officials of the BriberyDepartment.
According to the evidence of Athulathmudali he had been agovernment buildings contractor for about 15 years. He had tenderedfor building projects in the Galenbindunuwewa educational circuit inthe year 1990 estimated at Rs. 562,000. The payment for the saidcontract which was awarded to him was to be made in three stageson a measure and pay basis. Having completed the building he hadreceived the 1st instalment of about one lakh and thereafter 2ndinstalment of Rs.120,000. Before payment, it had to be approved bytwo officers attached to the education office, Nandadeva and Kularatne,the accused-appellant. Kularatne had been acting at the relevant timefor the engineer and Nandadeva the subordinate officer working asbuildings inspector. As there had been a delay in the payment of the3rd instaliment, he had met the accused in his official quarters in
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Karunaratne v. Attorney-General (Gunasekera, J. (P/CA))
263
March, 1991. When he requested the accused-appellant to make the3rd payment having submitted the bill he had requested the complain-ant to meet the buildings inspector, Nandadeva and speak to him.When he met Nandadeva, he in turn had requested the complainantto meet the accused-appellant. According to his evidence, he had gotthe impression that the accused-appellant was expecting a commissionof 5% of the payment made in order to approve the final payment.In the entirety of his evidence the complainant did not give anyevidence of a direct solicitation by the accused-appellant but madeout that the accused-appellant had solicited through Nandadeva asthe intermediary.
It was submitted by learned President's Counsel that after theevidence of the complainant was given that an application was madeby prosecuting state counsel in terms of section 154 of the EvidenceOrdinance to treat him as an adverse witness and certain portionsof the statement made by the witness to the officers of the BriberyCommission was put to him. It was contended by learned President'sCounsel that during the course of his evidence, the complainant hadstated that there was a tacit solicitation made by the appellant onthe 1st April which was the second visit that the complainant hadmade and that after the application made under section 154 of theEvidence Ordinance the witness when confronted with the statementshad referred to a direct solicitation by the appellant. At page 52 ofhis evidence he has admitted that in the statement made to the BriberyOfficer that he had stated thus "this Mr. Kularatne told me that inrespect of a contract tike this that he usually charges a commissionof 10%". When it was suggested that the earlier evidence that hegave was false the witness had stated that he had forgotten to saywhat he had told the Bribery Officers in his statement. In his evidenceat the trial, in respect of the final payment, it was his evidence (atpage 55) that when he met the accused-appellant, the accused-appellant had told him "Athulathmudali you have not made the paymentin respect of an earlier instalment you should at least make paymentin respect of the final instalment and that I have informed Nandadevaabout it". This evidence of his relates to the final payment which hadbeen made in April. 1991.
It was contended by learned President's Counsel that this evidenceeven if it is accepted and is considered to be a tacit solicitation doesnot relate to the dates specified in counts 1 and 2 of the indictmentand therefore the learned trial Judge erred in reaching conclusion thatcounts 1 and 2 had been established beyond reasonable doubt.Learned counsel further contended that in the evidence, the virtual
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complainant took up a 3rd position that he admitted that in hisstatement made to the Bribery Commissioner, he has stated that theappellant was expecting a 5% commission in respect of the paymentthat he had been made. Learned President's Counsel submitted thatin view of the three different positions taken by the virtual complainantthat it was not safe to have acted upon his evidence which was notcorroborated. Learned counsel further contended that the only witnesswho could have corroborated this solicitation was Nandadeva throughwhom the appellant is alleged to have solicited the gratification.Nandadeva has not been called as a witness, nor has even astatement been recorded from him by the bribery officers.
Learned senior state counsel submitted that on the evidence itappears that the appellant had indicated a willingness to receive theamount that was solicited and submitted that it would be covered bysection 89 (a) of the Bribery Act. However even if one can say onthe evidence that there was a willingness to accept an amount onthe evidence led there is no positive evidence in regard to the datewhen that willingness had been expressed. Learned senior statecounsel rightly in our view conceded that on the evidence led thatalthough one could say that there was a tacit solicitation that the dateon which that solicitation had been made cannot be referable to the15th March, 1991, which is the material date stated in counts 1 and2 of the indictment. That being so we are of the view that the benefitof that doubt must ensue to the appellant. Thus we uphold thecontention of learned President's Counsel and take the view that theprosecution has failed to prove beyond reasonable doubt that therewas a solicitation by the appellant on the dates specified in theindictment. Therefore we set aside the conviction and sentence of theappellant in respect of counts 1 and 2 of the indictment.
In regard to counts 3 and 4 namely in regard to the acceptanceof a sum of Rs. 10,000 on 02.04.1991. It is to be observed that theevidence of the virtual complainant Athulathmudali has beencontradicted in material particulars by the evidence of police sergeantHerath who acted as the decoy and Sub Inspector Senaratne whohas gone in charge the detection. In view of this contradiction learnedsenior state counsel did not seek to support the conviction of theaccused-appellant on counts 3 and 4. We set aside this convictionand sentence on those counts as well and we allow the appeal andacquit the accused-appellant.
DE SILVA, J. – I agree.
Appeal allowed.