WIJEYEWARDENE A.C.J.—Lambadusuriya v. Robins
1948Present: Wijeyewardene A.C.J.
LAMBADUSURIYA, Appellant, and ROBINS (Superintendent ofPolice), Respondent.
-S. C. 529—M. C. Colombo, 25,267
Penal Code, s. 158—Charge of accepting illegal gratification—Discrepancy betweencharge and evidence—Evidence only of loan—Validity of conviction.
A public servant who is charged with accepting an 41 illegal gratification ofcash Rs. 250 ” in respect of a particular official act cannot be convicted forobtaining “ an illegal gratification of a loan of Rs. 250 ** for doing anotherofficial act when the case presented by the Crown at the trial is in accordancewith the charge preferred against him.
_^_PPEAL. from a judgment of the Magistrate, Colombo.
H. V. Perera, K.C., with G. P. J. Kuruhulasuriya and Vernon Wije-tunge, for the accused, appellant.
Boyd Jayasuriya, Crown Counsel, for the Crown.
Cur. adv. wit.
June 15, 1948. Wijeyewardene A.C.J.—
The accused was charged with accepting on October 21, 1946, whilebeing a public servant, “ a gratification of cash Rs. 250 ” other thanlegal remuneration from Sirisoma Ranasinha as a reward for doing anofficial act in the exercise of his official functions, to wit, obtaining for thesaid Sirisoma Ranasinha from the Government Agent, Western Province, apermit to cut and remove earth from the premises of the GovernmentGirls’ School.
Non-summary proceedings were instituted on this charge. Afterseveral witnesses including Mr. Ranasinha had given evidence theMagistrate discovered that the offence with which the accused wascharged was a summary offence. The Magistrate, thereupon, dischargedthe accused and ordered the Police to file a fresh plaint. That plaint wasfiled before another Magistrate who, after hearing evidence, convicted theaccused and sentenced him to six weeks’ rigorous imprisonment.
WIJEYEWARDENE A.C.J.—Lambadusuriya v. Robins
Mr. Ranasinha appears to be a man of some education and is theproprietor of a printing and publishing business. The accused is aGovernment servant ■with “ an excellent record of service ” accordingto his official superior, the Government Agent, Western Province. In1946 he was conferred the titular rank of Muhandiram in recognition ofhis services to Government. At the time of the alleged offence, theaccused was occupying a responsible position as Land Clerk in theKachcheri and had a large number of clerks working under him.
The accused admitted receiving a sum of Rs. 250 from Ranasinha onOctober 21, 1946, but stated that he was given the sum as a temporaryloan.
It will thus be seen that the matters in dispute between the prosecutionand the defence lie within a very small compass, and that fact makes thedecision of the case somewhat difficult.
After discussing the evidence given by Ranasinha, accused and somewitnesses the learned Magistrate found the accused guilty because hewas inclined to believe Ranasinha’s version that the sum of Rs. 250 wasgiven as a “ bribe ”. This certainly raises some doubt in my mind whetherthe Magistrate did not decide this case on a balance of evidence. More-over, the Magistrate rejected the evidence given by the defence witness,Mr. Siriwardene, a young clerk employed in the Kachcheri, as he was aclerk working under the accused and “ one who can be made to sayanything in favour of the accused ”. Apart from the fact that theproceedings do not disclose any grounds for that observation by theMagistrate, it has to be remembered that at the time Mr. Siriwardenegave evidence the accused had been interdicted from duty and was,therefore, not in a position to exercise any influence over Mr. Siriwardene.The Magistrate has also failed to consider the evidence of Mr. K. T.de Silva, retired Korale Mudaliyar, though that evidence is relevant tothe defence. In view of all these circumstances I think it necessary toexamine carefully the evidence in the case.
I may state at this stage that on a strict interpretation of the chargeit is not possible to sustain the charge on the evidence led by the prose-cution even if that evidence is accepted. That evidence proves onlythat the accused asked for and obtained a bribe of Rs. 250 for enablingRanasinha to obtain a concession from the Government Agent to removeearth from the Crown land without payment for the earth so removed.According to that evidence it was never suggested by the accused to Rana-sinha that Ranasinha should give a bribe to the accused for the mereissue of a permit by the Government Agent. The charge, however, statesthat the gratification was for obtaining a permit in favour of Ranasinhato cut and remove earth.
The evidence of Ranasinha before the trial judge was to the following-effect :—
He wrote letter PI of July 1, 1946, asking for a permit to cut or
remove.earth from a Government land and pointing that the
Government would be benefited by issuing him such a permit.
In August, 1946, the accused saw him at his business place and
told him that he would have to pay the Government about
WTJEYEWARDENE A.C.J.—Larribadusuriya v. Robins
Rs. 1,000 for the earth which he sought to remove but undertookto get the Government to waive the amount if he “ saw to histrouble He replied, “ I need not pay anything for thecutting of earth and I have adduced all reasons for doing soHe added “ I knew that no payment need be made and I wasnot ready to make a payment. I was not prepared to pay acent up to the last. The position I took was that the Govern-ment should pay me. I even told the accused so ”.
In September he went to the Kacheheri. He met the accused
there and learnt that his application had been forwarded to the
R.O. On that occasion the accused said, “ Mr. Ranasinha,I am in need of Rs. 250. Can you give it to me ?”. He wentaway without saying anything.
On October 16, the accused phoned to him from the Kacheheri and
said that if Ranasinha paid him Rs. 250 he would “ allow theapplication to cut earth free ”. Ranasinha agreed to payRs. 250 and accused undertook to have the permit ready onOctober 21.
On October 18, Ranasinha went to the Police Station, Pettah, and
made a statement to the Inspector of Police. Arrangementswere then made for the Inspector to be present when theaccused came to Ranasinha’s place of business on October 21,for his bribe.
(/) Accused came about 4.20 f.m. on October 21. The Inspector wasin the adjoining room but he could see and hear what passed,between the accused and Ranasinha. What then happened isnarrated by Ranasinha as follows :—
“ He said, ‘ How are you Mr. Ranasinha ?’ and took his seat.He said ‘ hurry up and cut the earth ’ and inquired whether-there are produce trees in the garden. I said there are noproduce trees and asked him to get me a permit to cut thosetrees also. The accused asked me to send an application forthit purpose. Th'.n I took the envelope P10 in which I kepttin money and asked him to reduce something saying that itwas too much. The accused said he could not reduce anything.He said that he would not do it even for Rs. 500 to any otherman. I gave him the money. The accused thanked me, putthe money into his pocket and went away ”.
Now that evidence is contradicted on several points by the evidencegiven by him in the non-summary proceedings and by the statementmade by him to the Inspector of Police on October 18.
In the non-summary proceedings he did not say a word about theaccused telling him in August that he could remove the earth from theGovernment land without payment, if he “ saw ” to accused’s " trouble ”.His position then was that the first mention of a gratification was onOctober 16th wdien the accused phoned to him that if he gave Rs. 250the accused would “ put through the matter ”. It was then that he triedto reduce the amount, but the accused “ would not listen ”.
WUETE WARDENS A.C.J.—Lombaduauriya v. Sabins
Tn his statement to the Inspector of Police which was freely used at theargument before me by both the Counsel the first suggestion of anythingin the form of a money payment was made by the accused onOctober 16th. The relevant passage in that statement is as follows :—
“ On the 16th October at 2.12 f.m. Mr. Lambadasuriya telephonedto me to my office and stated that the D.R.O. had returned the papersstating that there are a number of coconut trees and cadju trees.Mr. Lambadasuriya asked me whether I could cut earth withoutdamaging the trees. I said I could do it. He then asked me how muchI could give him to get the matter passed. I asked him how much heexpects. He then told me that that is a matter where I would haveto pay Rs. 1,000 to the Government but that he would arrange to doit at a nominal rate if I give him Rs. 250. I told him it was too muchand to reduce the amount. He then told me that he could notreduce the amount. I then agreed to pay Rs. 250.”
It will thus be seen how Ranasinha has given different versions of thecircumstances connected with the accused’s demand for a bribe.
I shall now proceed to consider the evidence of the Inspector of Policewhich according to the prosecution supports to some extent the caseagainst the accused. Speaking of what happened just before the sum ofRs. 250 was handed by Ranasinha to the accused on October 21 theInspector says:—
“ At about 4.35 p.h. the accused came to the complainant’s office.The accused sat opposite the complainant at his table. The accusedsaid you will have to cut the earth and finish the work soon. Theaccused asked whether the trees were in bearing. I heard the com-plainant saying, ‘ It is too high. I thought of reducing the amount ’.The accused said 1 No ! No ! ’ ”
It will be seen that the Inspector who could have heard and seendistinctly what passed between the accused and Ranasinha does not givethe same account of the conversation as Ranasinha (vide (/) above). More-over it is very difficult to understand what the accused could have meantby saying “ No ! No ! ” to Ranasinha’s observation that “ It is too high.I thought of reducing the amount ”. The conversation was in Sinhaleseand the accused reply should have been not zru! sr! which was meaning-less but some such words as erosoS a®33© 2ac5zn°E> aai. It is admittedand proved beyond any doubt that the accused is very deaf. Could itnot be that Ranasinha said something for the benefit of the Inspector ofPolice so as to convince the Inspector that the accused was being given abribe but spoke in a low tone so as not to be heard by the accused who-misunderstanding what Ranasinha was saying replied “ No ! No ! ” to-what he thought Ranasinha was telling him ? It may be mentioned herethat Ranasinha stated that he intended “ to get the permit and put him(accused) into trouble ”.
The accused himself gave evidence and stated that he approachedRanasinha for a loan of Rs. 250, as he wanted to get together Rs. 1,000 forthe purchase of a motor cycle for a nephew of his, who was expecting to-beemployed shortly in a Government department. He admitted that hehad money in the Bank but added that he could not operate on it without
Qivendrasingha v. R F. S. de Mel.
the knowledge of his wife who was opposed to his financing his nephew.I think the Magistrate has rejected without due consideration the evidenceof the accused that he wanted to raise a loan for the purchase of a cycle.Mudaliyar de Silva supports the accused when he says that the accusedmentioned to him about the beginning of September his need for Rs. 1.000for the purchase of a cycle and that he promised to give a loan of Rs. 250.Mr. Siriwardene’s evidence is to the effect that as the accused was deafhe received a telephone message from Mr. Ranasinha for the accused onOctober 16 and that Mr. Ranasinha said in the course of his conversationthat the loan would be ready. As soon as he was arrested by the Policethe accused told the Inspector that " the money was received as a loan
It was argued by Crown Counsel that even if the sum of Rs. 250 wastaken as a loan, yet the accused would be guilty of an offence undersection 158 of the Penal Code, if the loan was asked for and obtained as areward for the accused showing some favour to Ranasinha in the exerciseof his official functions. That, no doubt, is a sound proposition of law.But it does not follow that a man could be charged for accepting “ agratification of cash Rs. 250 ” for doing a certain official act and could beconvicted on that charge in spite of the evidence for Crown, for obtaininga loan of Rs. 250 for doing a different official act.
I am unable to hold that the Crown has proved beyond reasonabledoubt the charge preferred against the accused.
No doubt, the accused has acted most improperly in trying to raise aloan from a person who came to him on official business. He may beliable to be dealt with departmentally for it. Such misconduct, however,does not amount to a criminal offence.
I set aside the conviction and acquit the accused.