SOERTSZ A-CJ.—Perera v. Kannangara.
1939Present: Soertsz A.C.J.
PERERA v. KANNANGARA715—M. C. Colombo, 25,081.
Abetment of acceptance of illegal gratification—Offence not committed in con-sequence of abetment—Motive of abettor—Proof that gratification wasnot legal—Penal Code, ss. J09 and 158.
The accused, a Police Officer, was infoiyned by an Inspector of Policethat a charge of theft against one P, who was held in custody, was false.P was thereupon released and left the station in the company of theaccused.
Shortly after the accused returned and offered the Inspector a sum ofmoney “ for the trouble he had taken ”.
The accused was charged- under sections 109 -and 158 of the PenalCode with having abetted the acceptance by the Inspector for himselfan illegal gratification other than a legal remuneration as a motive orreward for showing in the exercise of his public functions favour to P,which offence was not committed in consequence of the abetment.
Held, that the accused was guilty of the offence.
Where an abettor is-charged the relevant state of mind is not that ofthe person to whom the offer is made but of the person making theoffer.‘ •
Where the prosecution has adduced so much evidence as mayreasonably be held to establish the positive elements of an offence theburden is cast upon the accused of disproving- the negative element byproducing affirmative counter evidence.
PPEAL from a conviction by the Magistrate’s Court of Colombo.
Colvin R. de Silva (with him C. S. Barr Kumarakulasingham), for theaccused, appellant.
J. W. R. Ilangakoon, K.C., A.-G. (with him D. Jansze, C.C.), for theCrown, respondent.
Cur. adv. vult.
May 23, 1939. Soertsz A.C.J.—
The admitted facts in this case are that the accused-appellant whois the Police Officer of Attidiya was interested in one Peter Perera, aresident of Attidiya, against whom a charge of theft of a bicycle hadbeen made by a man of Cotta. On that charge Peter Perera was -incustody. The Inspector of Police, Cotta, made inquiries into this charge,and on his return to the Police Station where Peter Perera was beingheld in custody, he ordered his release, called him and the accused inthis case before him, and informed them that he would report to Court
SOERTSZ A.CJ.—Perera v. Kannangara.
that the charge was a false one and that if the Magistrate agreed withJfrat view, he would prosecute the man who made the charge, for givingfalse information. Thereupon, Peter Perera and this accused wentaway. About five minutes later this accused returned and offered theInspector fifteen rupees saying “ Here,. Sir, for the trouble you havetaken The Inspector declined the offer.
On these facts, the accused-appellant was charged under sections -158/109 of the Penal Code with having abetted the acceptance by theInspector for himself of an illegal gratification other than a legalremuneration as a motive or reward for showing in the exercise of hispublic functions favour to one K. Peter Perera, which offence, however,was not committed in consequence of the abetment.
The accused-appellant was convicted and sentenced to pay a fine ofRs. 100, in default six months’ rigorous imprisonment.
. On appeal, it was submitted that the offence charged was not madeout because the evidence established that the Inspector had not shownany favour to Peter Perera, nor had he pretended to have done so, andthat therefore the offer of the money by the appellant to the Inspectorcould not be related to a necessary ingredient of the offence charged,namely the acceptance of the money, if it was going to be accepted, onthe footing that the Inspector had shown favour to Peter Perera or hadpretended that he had done so. In this instance, on the Inspector’sown evidence he had neither shown nor pretended to have shown favourand could not accept the money on that footing. I cannot entertainthis submission at all. In a case like this where an abettor is charged,the relevant state of mind is not that of the person to whom the offeris made, but of the person making the offer. There can be no doubtwhatever that the accused made this offer because he thought the Inspectorhid shown some favour. That is sufficient for the .constitution of theoffence. It was also submitted for the appellant—and this was the maincontention—that the conviction was bad because the burden was on theprosecution to prove that this was a ‘ gratification ’ ‘ other than legalremuneration’ and that the prosecution had not discharged that burden,had not led any evidence to show that, this offer was not by way of legalremuneration/ The Attorney-General who very kindly appeared to helpthe Court referred to the Full Bench ruling in the The Mudaliyar, Pvtigalkorale North v. Kiri Banda1. In that case the accused was chargedunder section 21 of Ordinance No. 16 of 1907, which enacts that “noperson shall clear, set fire to, or break, up the soil of any forest notincluded in a reserved or village forest”. It was contended that theburden as on the prosecution to show that the forest in questionwas not included in a reserved or village forest, but the Bench held thatthe burden was on the accused to show that it was, because the words. ‘ not included in a reserved or village forest ” are in the nature of anexception within the meaning of section 105 of the Evidence Act.
.1 find the law stated thus in The King v. Audley * by Lord Alverstone C.J.who cites from the judgment of Lord Mansfield C.J. in Rex v. Jarvis’.
‘ 12 If. L. R. 304.* (1907) 1 K. B. 383.* I Bast. 643, n., at p. 646, n.
Jayawardene v. 'Jayawardene.
“It Is a known distinction that what comes by way of proviso ina statute must be insisted on by way of defence by the party accused;but where exceptions are in the enacting part of a law, it must appearin the charge that the defendant does not fall within any of thanBut, I do not think it necessary to consider this matter further, for itseems clear that the prosecution in this instance has placed sufficientevidence before the Court to show that the money offered could not havebeen offered by way of legal remuneration. The Inspector says, andit is admitted, that when the accused offered the money, he said, ‘ Here,Sir, for your trouble’. In Sinhalese the words are more expressive andnegative the idea of legal remuneration. In cases of this kind, I believethe law to be as stated by Kenny in his Outline of Criminal Lawthat when the prosecution has adduced so much evidence as mayreasonably be held to establish the positive elements of the offence, theburden is cast upon the accused of disproving the negative element byproducing affirmative counter evidence. If the accused fails to producethat evidence, the failure may be construed as proving that no suchaffirmative evidence exists and accordingly as establishing the prosecutor’snegative allegation.
For these reasons, I think the appeal fails and I dismiss it.
PERERA v. KANNANGARA