V YtH IA LI A'G A31, J.—Fernando v. Republic e§ Sri Lankai
1976 Tennekoon, C. J., Vythlalingam, J. and Ratwatte, J.
R.J. B. FERNANDO, Accused-Appellantand
THE REPUBLIC OF SRI LANKA, Respondent
S.C. 35/75—D. C. Colombo B/310
Bribery Act, sections 19, 21—Meaning of the term “ gratification
Where the accused-appellant who was a Process Server in theMagistrate’s Court solicited a sum of money from the complainant,in order to obtain the release of a deed which the complainanthad tendered as security in the Magistrate’s Court—
Held : That the purpose for which the money was solicited andaccepted by the accused was to assist the complainant in thetransaction of his business in the Magistrate’s Court. Such agratification is not a legal gratification and is an offence undersection 19 (b) of the Bribery Act.
Case referred to :
Karunaratne v. The Queen, 09 N.L.R. 10.
PPEAL from a judgment of the District Court, Colombo.
S. L. Gunasekera, for the accused-appellant-
W. S. Yapa, Senior State Counsel, for the Attorney-General-
March 18, 1976. Vythialingam, J.
The accused-appellant who was a public servant employed asa Process Server in the Magistrate’s Court of Waftala wasconvicted on two counts of soliciting and two counts of acceptinga gratification of Rs. 20 from M. Pablis Fernando and sentenced
540V1THI AL^-NGA-vl, J.—Fernando v. Republic of Hri Lanka
to 9 months’ rigorous imprisonment on each count, the sentenceson counts 1 and 2 to be consecutive, while the sentences oncounts 3 and 4* were to run concurrently with the sentences oncounts 1 and s£^to a fine of Rs. 25 and to a penalty of Rs. 20 indefault two weeks rigorous imprisonment respectively.
The complainant had stood as surety for the release on bail of arelative one Ekman Fernando who had been charged in theMagistrate’s Court of Wattala with house breaking and theft andhad tendered a deed as security. Thereafter on 22.8.74 he had goneto the Magistrate’s Court for the purpose of taking back the deed.He saw four persons near the witness shed and sought the adviceof an elderly person among them as to how he could withdrawthe deed. He told him to go and speak to the gentleman in theoffice. At that time the accused who was among the four personsagreed to help the complainant to withdraw the deed and thatit would cost him Rs. 20 and askd him to come in two or threedays’ time.
On the following day the complainant made a complaint to theBribery Commissioner’s Department, and a trap was laid for28.8.74. On that day the complainant went to the Magistrate sCourt, Wattala, along with Constable Jayasinghe who was to poseas his son and Inspector Premaratne of the Bribery Departmentwho was in charge of the raid. There they met the accused andtold him that they had brought the Rs. 20 to take back the deed.The accused then told him that he could not do it at that timeand as the complainant and Jayasinghe were going away theaccused clapped and called them back. He asked Jayasinghe tostay behind and asked the complainant to give the money andto come on the following day.
Thereafter he took them to the sign board of the road and toldthem to give the money to the boy in a small boutique, whom hepointed (tut. The complainant went up to the boy and gave himthe money and the boy put it in to a drawer of a table which wasthere. The signal was given and Inspector Premaratne came up
YYTHIAliIXGAil, J.—Fetnar^do v. lit public ISri Lanka547
and arrested the accused as he was going back to the Magistrate’sCourt. The complainant also said that the accused asked for theRs. 20 to prepare a motion and also as a brilje for himself.Constable Jayasinghe said that the accused had tBld the complai-nant that a motion had to be submitted and that it could notbe done in any indirect way. The complainant himself had saidso in his statement to the police (Dl).
For the prosecution the complainant, Jayasinghe, Premaratneand the boy in the boutique Usman gave evidence. The accusedgave evidence on his own behalf and accepted most of theprosecution evidence. He said that on the first occasion he toldthe complainant that a motion had to be drafted by a lawyer andsubmitted to the office. The complainant said that he could notafford to pay a lawyer and said that he knew the judge and couldget it done through the judge. He also said that he could affordonly a small amount and request that it be given to somebodyeven as a bribe in order to get the deed. The accused then toldthe complainant that a motion had to be submitted and that itcould not be done in any other way, even by offering a bribe.
The accused then told the complainant that if he could notafford to spend for a lawyer, to give him Rs. 15 or Rs. 20 so thathe could draft a motion and tender it to Court. The complainantagreed to this suggestion and agreed to come the next week as.he had no money on that day. As to the events on the 28thAugust the accused’s version was much the same as that of theprosecution. He said that he asked them to give the money to theboy in the boutique because if he took the money himself it mightbe construed as a bribe. He admitted that he was going to getthe money from Usman.
He stated that he had experience in drafting motions and thathe had done so on three or four occasions previously. Hisposition was that it was not a bribe but payment for his servicesin drafting the motion which was completely outside his functionsand duties as a Process Server. It is unnecessary for me toconsider the differences between the accused’s version and the
VYTHIAL^ XGAM, J .—Fernando v. Republic oj Sri Lanka
prosecution version, as the accused has admitted both thesolicitation and the acceptance of the gratification as also thepurpose for wKich the gratification was given. The question iswhether the gratification is such a gratification within the mean-ing of the term as used in sections 19 and 21 of the Bribery Actunder which the accused is charged.
Mr. Gunasekera who appeared for the accused-appellantsubmitted that the Bribery Act does not define the term grati-fication. The defining section merely states that the forms whicha gratification could take as including the forms set out in thesection. Mr. Gunasekera submitted that having regard to thepreamble to the Act and the definition of the terms, the wordgratification when used in the Act means no more nor less thana bribe, and as such, there must be some element of perversionand/or corruption in the conduct. He argued that there must besome element of moral turpitude and that an acceptance of amere irregular payment would not come within the meaning ofthe term gratification as used in the Act. He submitted that ifthe term gratification was given a wide meaning so as to includeany gratification then a public servant who accepted an innocentgift would be guilty of bribery.
A similar argument was advanced before the Supreme Courtin the case of Karunaratne v. The Queen, 69 N.L.R. 10. In acharge under section 19 (c) as it originally stood the trial Judgehad said that the charge “ was a straight forward charge that theaccused being a public servant did solicit from Piyasena agratification of Rs. 100 ” and that “ this solicitation is itself anoffence. ” Dealing with these observations, T. S. Fernando, J.said at page 19 “If by this he meant that all the prosecution hadto prove was that a public servant did solicit a gratification, Ifear that one element of the offence under section 19 (c) has beenoverlooked. * Gratification ’ has been the subject of definition inthe Act (vide section 90) but throughout carries with it here asinister and not an innocent connotation. If the words ‘ anygratification which he is not authorised by law or the terms ofhis employment to receive’ are given the widest possible
W'l'H f AT.T~Pr A AT. J.-—Fernando v. Republic <£ Sri Lankao4ti
interpretation of which they are capable then a public servantwho accepts a personal gift from a friend, relative or neighbouror for that matter, a birthday present from his Jivife would beguilty of an offence under the Act. It#would be absurd to haveto reduce oneself to the position that such gifts are within themischiefs which the Act was designed to punish. Some limitationupon the wide words of the section was obviously intended by the
Legislature An examination of this part of the section
19 (c) makes it apparent that what is penalised is the solicitationor acceptance of a gratification other than a legal gratification.This is therefore an indication that this part of the sectioncontemplates occasions when a legal gratification may beaccepted, but there is a solicitation or an acceptance of agratification other than a legal gratification. ”
I am of the view that this same limitation should be appliedto the term gratification in sections 19 and 21 as well. Otherwiseit would be illogical. To come within the meaning of the termgratification in the section it should be other than a legalgratification. Was then the gratification in the instant case agratification “ other than a legal gratification ? ” Omitting wordswhich are not relevant for the purpose, section 19 (b) read withsub-section (a) sets out that a public servant who solicits oraccepts any gratification as an inducement or a reward for hisassisting any person in the transaction of any business with thegovernment shall be guilty of an offence.
In the instant case the complainant was a person who hadbusiness to transact with the Government in that he had toobtain the release of a deed which he had tendered as security inthe Magistrate’s Court. In the accused’s own words, he solicitedthe money “ so that he could draft a motion and tender it toCourt ” and “ after the money was given I went to the CourtHouse to obtain a paper and prepare the motion. ” According tothe Registrar of the Magistrate's Court of Wattala ^ writtenapplication has to be made for the release of the deed. So thatthe purpose for which the money was solicited and accepted bythe accused was to assist the complainant in the transaction of
550VYTHI ALj^XGAM, •!.—Fernando r. Republic of Sri Lnnka
his business in the Magistrate’s Court. The acceptance of such agratification is pn offence under section 19 (b) and is therefore,not a legal gratification.
Similarly section 21 (a).makes it an offence for any person,having dealings of any kind with the Government through anydepartment, office or establishment of Government to offer anygratification to any public servant employed in that department,office or establishment. Section 21(c) makes it an offence for apublic servant to solicit or accept any gratification the offer ofwhich is an offence under section 21 (a). The complainant is aperson who had dealings with the Magistrate’s Court office anddepartment. This might of course be the result if the words inthe accused was employed in that office. The solicitation andacceptance of such a gratification by him in relation to suchdealings by the complainant is an offence under section 21 (c)and cannot therefore be a legal gratification.
Mr. Gunasekera gave two examples of the consequences whichwould follow if the solicitation and acceptance of the gratificationwere not to be construed as containing some element of corrup-tion or perversion. The first was the case of the wife of anemployee, who, on her return from abroad, gives her husband agift of a shirt. His submission was that the husband would beguilty of an offence under section 21 because he had dealingswith the Customs department and he was employed in thatdepartment. This might of course be the result if the words insection 21 are given their widest meaning they are capable of.As T. S. Fernando, J. pointed out (supra) “ Some limitation uponthe wide words of the section was obviously intended by theLegislature. ” In this instance the limitation would be that thegratification should have been offered, solicited or accepted “ inconnection with the dealings ” of his wife with the department.Thus, if the wife had given the shirt to her husband in considera-tion for his assisting her in clearing her through the Customs hewould have been guilty of an offence under the section. If how-ever, it was not in connection with her dealings with the depart-ment but simply a gift by a wife to her husband, then it wouldnot be other than a legal gratification.
VYTHTALINGAM, J.—Fernando r. Republic ojtSri Lanka
The other example was the case of a police officer who bysection 82 of the Police Ordinance is made guilty of an offence ifhe engages without authority in any employment nther than hispolice duties. Mr. Gunasekera submitted that such an officerwould also be guilty of an offence under section 19 if he repairsa car belonging to a neighbour and accepts a fee or reward forhis services. With respect, No. He would not be guilty undersection 19 (b) because he was not accepting the money as aninducement or a reward for his performing or abstaining fromperforming an official act or for such expeditious, delaying,hindering, preventing, assisting or favouring “ any person in thetransaction of any business with the government as referred toin paragraph (a) of the section.
Different considerations may, however, apply in regard tosection 19 (c),. For the question may well arise in such a caseas to whether when a police officer is prohibited by law fromengaging in any other employment he is also not authorised bylaw or the terms of his employment from receiving anyremuneration in respect of such other employment. The questionwill have to be decided in an appropriate case. It does notarise in the instant case because the accused is not charged withany offience under section 19 (c) but only with having committedoffences under section 19 (b) and section 21 (c). As I haveendeavoured to show the gratification which the accused solicitedand accepted was one which was not a legal gratification and hewas therefore rightly convicted on all four counts.
The jail terms in respect of counts 1 and 2 have been made torun consecutively. Although solicitation and acceptance aredistinct offences yet, in the instant case they are part of the sametransaction and are really one act. The sentences therefore shouldhave properly been made concurrent and I direct that the sen-tence of nine month’s rigorous imprisonment on each of thecounts 1 and 2 should also be concurrent. The acceptance andsolicitation by the accused of the gratification was for the purposeof drawing up a motion and presenting it to the office. It did notinvolve the doing of any act in any corrupt or wrong way in the
552VYTHIAE INGAM, J. —Fernando »). Republic of Sri Lanka
discharge of their duties either by the accused or by any otherofficial in the iJtagistrate’s Court office. In other words, there wasno corruption^ of an official or the perversion of governmentbusiness in the act of the accused.
In the circumstances, acting under section 239(1) of the
Administration of Justice Law, I suspend the sentencesof imprisonment for an operational period of five years. Thefines and penalty will stand and are to be paid within onemonth of the date on which the decision of this court is conveyedto the accused. The default sentences however are deleted andthe Additional District Judge is directed to comply with therelevant sections of the Administration of Justice Law in regardto the sentences. Subject to the variation in the sentence theappeal is dismissed.
Tennekoon, C. J.—I agree.
Ratwatte, J.—I agree.
Appeal dismissed.Sentence varied.
R. J. B. FERNANDO, Accused-Appellant and THE REPUBLIC OF SRI LANKA, Respondent