013-SLLR-SLLR-1997-2-RUPASINGHE-v.-REPUBLIC-OF-SRI-LANKA.pdf
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RUPASINGHE
v.
REPUBLIC OF SRI LANKA
COURT OF APPEAL.
ATUKORALE, J. (P/CA),
SIVA SELLIAH, J. ANDMOONEMALLE, J.
C.A. NO. 75/82.
C. COLOMBO B624.
MAY 31 .JUNE 1 AND 2, 1983.
Bribery – Ingredients to be proved – Burden of proof – Bribery Act, sections 16,19(c), 90.
The burden of proof that the accused, a public officer, accepted a gratification asan inducement or reward for interfering with the due administration of justice wason the prosecution. It was for the prosecution to establish each ingredient of theoffence under section 16 of the Bribery Act beyond reasonable doubt. There wasno burden for the accused to discharge.
In regard to the charge under section 19(c) the burden was first on theprosecution to prove beyond reasonable doubt that the accused was a StateOfficer and secondly that he accepted a gratification. Once these two ingredientsare proved beyond reasonable doubt, the burden shifts to the accused to proveon a balance of probability that he was authorised by law or by the terms of hisemployment to receive the money.
The meaning of the word “gratification" under section 90 of the Bribery Actincludes "money”.
APPEAL from conviction and sentence passed by the High Court of Colombo.
E. R. S. R. Coomaraswamy with Lakshman de Alwis for accused-appellant.
L. M. de Silva, Senior State Counsellor the State.
(Note by Editor: The judgment of the Supreme Court in appeal from thisJudgment is reported in (1986) 2 Sri L.R. 329)
Cur. adv. vult.
July 11,1983.
MOONEMALLE, J.
The accused-appellant was indicted on the following two counts:
That on or about 2nd day of December 1975, at Homagama,the accused-appellant being an Officer of Court to wit: InterpreterMudaliyar, Magistrate's Court Homagama, did accept a gratificationof a sum of Rs. 50/- from one A. A. Avis Singho, as an inducement ora reward for his interfering with the due administration of justice inMagistrate’s Court, Homagama Case No. 22929 and that he is guiltyof an offence punishable under Section 16 of the Bribery Act.
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That at the same time and place aforesaid and in the courseof the same transaction, the accused appellant being a State Officerto wit; Interpreter Mudaliyar, Magistrate’s Court Homagama, didaccept a gratification of a sum of Rs. 50/- from the said A. A. AvisSingho and he is thereby guilty of an offence punishable undersection 19(c) of the Bribery Act as amended by section 8 of theBribery (Amendment) Law, No. 38 of 1974.
After trial in the High Court of Colombo, the accused-appellantwas found guilty of both counts and was sentenced to (A) one year’srigorous imprisonment on each count, the sentence to runconcurrently, (B) To a fine of Rs. 1000/- in default 6 weeks rigorousimprisonment on each count. If the accused-appellant pays theRs. 1000/- on count (1) he need not pay the Rs. 1000/- on Count (2),(C) to a penalty of Rs. 100/-. This Appeal is against these convictionsand sentences.
The prosecution case was that the complainant A. A. Avis Singhoand one Somapala were charged in M.C. Homagama in caseNo. 22929 for the offence of theft. Then on 11th November, 1975 bothappeared in Court and pleaded guilty to the charge. Thereafter, theywere ordered to give their fingerprints and were warned to appear forsentence on 25th November, 1975.
Thereafter, Avis Singho had filed a petition of Appeal in theSupreme Court alleging that he had been forced to plead guilty in thecase. He was unable to appear in Court on the 25th November, 1975for sentence as he had been noticed to appear in the Court ofAppeal that day. Sentence had been put off for 2nd December, 1975.Then on 26th November, 1975, Avis Singho had met the accused -appellant at the Magistrate’s Court Homagama, and asked him to gethim some relief in the sentence. The accused appellant had thenasked Avis Singho to give him Rs. 50/- in order to get him a minorpunishment. Avis Singho had then promised to meet the accused-appellant on 2nd December, 1975 which was the next date fixed forthe sentence. Then on 27th November, 1975, Avis Singho lodged acomplaint at the Bribery Commissioner’s Department, and he wasasked to come there again on the 2nd December.
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Avis Singho went to the Bribery Commissioner’s Department on the2nd December about 6.30 a.m. and there he had met InspectorDharmapala who had instructed him to meet the accused-appellantalong with P.C. Bissomenika of the Bribery Commissioner'sDepartment who was to pose as his sister. I. P. Dharmapala hadgiven Avis Singho four Rs. 10/- notes and two Rs. 51- notes afternoting the numbers of the notes.
Avis Singho was further instructed by the Inspector to proceed tothe Magistrate’s Court Homagama along with P.C. Bissomenika andto meet the accused-appellant and to introduce Bissomenika to himas his sister. He was also instructed by the Inspector to inform theaccused-appellant so that Bissomenika could hear that he hadbrought the Rs. 50/- and to get him redress in the case, andthereafter to hand over the Rs. 50/- to him.
P. Dharmapala had also instructed P.C. Bissomenika to pose asthe sister of Avis Singho, to listen to the conversation carefullybetween Avis Singho and the accused-appellant and thereafter togive a signal with the hand. He had also instructed her not to allowAvis Singho to give the money to the accused-appellant by force.
Thereafter, Avis Singho and P.C. Bissomenika proceeded to theMagistrate’s Court Homagama and had met the accused-appellantwho was seated on a chair. Avis Singho had told him that he hadbrought the money he had promised on the 26th and to get him reliefin the case. The accused-appellant had taken the Rs. 50/-, handedover to him by Avis Singho and had put the money into his pursewhich he put into his trouser hip pocket. Bissomenika had then askedhim whether her elder brother would go to jail and he had replied thathe would not be sent to jail and that he would save him with a fine.Thereafter, Bissomenika had given a pre-arranged signal and I. P.Dharmapala had come there and had recovered the Rs. 50/- from thepossession of the accused-appellant.
The defence was that the accused-appellant was authorised torecover money for translations and that the Rs. 50/- he received fromAvis Singho was an advance payment for the translations of anappeal brief into English which was to be prepared in triplicate. Hedenied that he accepted the Rs. 50/- as a bribe.
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The burden of proof in respect of Count (1) was on the prosecutionto establish each ingredient of that offence beyond reasonabledoubt. There was no burden for the accused-appellant to discharge.
In respect of Count (2) the burden was first on the prosecution toprove beyond reasonable doubt that the accused-appellant was aState Officer, and secondly that he accepted a gratification ofRs. 50/- from Avis Singho. The meaning of the word “gratification"under section 90 of the Bribery Act included “money”. Once thosetwo ingredients are proved beyond reasonable doubt, the burdenshifts to the accused-appellant to prove as a balance ofprobability that he was authorised by Law or the terms of hisemployment to receive the Rs. 50/-. The burden of proof shifts tothe accused-appellant by reason of the proviso stated in section 8subsection 3 of the Bribery (Amendment) Law No. 38 of 1974 whichreads as follows:
“Provided, however, that it shall not be an offence for a State
Officer to solicit or accept any gratification which he is authorised
by Law or the terms of his employment to receive.”
In respect of Count (1) it is common ground that the accused-appellant being an officer of Court to wit… Interpreter MudaliyarMagistrate’s Court, Homagama accepted a sum of Rs. 50/- from thecomplainant A. A. Avis Singho on 2nd December, 1975. Thus the onlyquestion that arose in respect of Count (1) was whether theprosecution had proved beyond reasonable doubt that the accused-appellant had accepted this Rs. 50/- as an inducement or a rewardfor his interfering with the due administration of justice in Magistrate’sCourt Homagama, Case No. 22929.
Learned Counsel for the accused-appellant submitted that therewere material misdirections in the Learned Trial Judge’s findingswhich led to wrong conclusions. He particularly referred to that partof the judgment where the Learned Trial Judge had stated that theevidence of Bissomenika corroborated the evidence of thecomplainant in all material particulars. This submission certainlycarries weight because Bissomenika contradicted Avis Singho, thecomplainant on a very important factor in the case. I.
I.P. Dharmapala had specifically instructed Avis Singho to speakto the accused-appellant about the bribe that he solicited the
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previous day, in the presence of Bissomenika so that it could beheard by her. He was also instructed to inquire from the accused-appellant before the money was given, the nature of the relief hewould get; Bissomenika was present for the purpose of being awitness to corroborate Avis Singho.
Avis Singho stated in his evidence that he spoke to the accused-appellant to be heard by Bissomenika. Bissomenika, on the contrarystated that Avis Singho got close to the accused-appellant and spokesoftly to him and she did not hear what was spoken. The LearnedTrial Judge has accepted the evidence of Bissomenika in preferenceto that of Avis Singho. Further, the Learned Judge categorically cameto a finding that the complainant Avis Singho had not spoken the truthwhen he stated in evidence that he discussed about the bribe withthe accused-appellant in a tone loud enough to be heard byBissomenika. He also came to a clear finding that the complainantAvis Singho was not speaking the truth when he denied making thestatements D1 and D3 to I.P. Dharmapala after the raid. In D1, AvisSingho had stated that “I bent down and spoke to the suspect in alow tone”. In D3, Avis Sigho had stated “I thought if I discussabout the bribe in a loud voice, that the suspect would suspectme and not accept the bribe from me. Hence, I spoke to himsoftly.” Having arrived at these findings the Learned Trial Judgeunaccountably proceeded to draw wrong inferences as to why AvisSingho should have spoken softly. The Judgment reads,
“In all probability the complainant genuinely felt that if hespoke about the bribe loud enough to be heard by anyone, theaccused would not accept the Rs. 50/- he had solicited and theraid would have been a failure. This explains, why in spite ofinstructions given to him he spoke softly to the accused andwhat he told the accused would not be heard by Bissomenika”.According to the evidence led, the only persons in the Court Houseat the time Avis Singho spoke to the accused-appellant were AvisSingho, the accused-appellant and Bissomenika. So that there wasno question of anyone else hearing what Avis Singho spoke, if hespoke loud enough for Bissomenika to hear. Further, according to theevidence of Avis Singho, Bissomenika was at the time near him to hisleft. So that there would not have been any necessity for Avis Singhoto speak so loud as to rouse any suspicion in the accused-appellant’smind. He had only to speak in his normal tone for Bissomenika tohear.
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The Learned Trial Judge also referred to the possibility of theInspector having reprimanded Avis Singho. Then he went on to statethat may be a reason why he told a lie in Court that he spoke to theaccused loud enough to be heard by Bissomenika. There is noevidence that the Inspector reprimanded the complainant. This ismerely an inference the Learned Trial Judge has drawn.
The Learned Trial Judge also stated that the acceptance by theaccused-appellant of the Rs. 50/- in order to obtain relief for thecomplaint in connection with case No. 22929 M.C. Homagama wascorroborated by the evidence of Bissomenika. This is not so.Bissomenika supported Avis Singho only in that she had seen himspeaking to the accused appellant and that she had seen theaccused appellant receiving the money from Avis Singho.Bissomenika did not know the the purpose for which the Rs. 50/- wasaccepted on that occasion by the accused appellant. She did nothear what Avis Singho told the accused appellant before he handedover the money to him.
Avis Singho, besides, not speaking loud enough for Bissomenikato hear, had failed to introduce her to the accused appellant as hissister. Here again, he failed to comply with the instructions given tohim.
According to Bissomenika she had asked the accused-appellantwhether her elder brother would go to jail and he had replied that hewould not be sent to jail and that he would save him with a fine. Theaccused-appellant, on the other hand, denied this and said that hehad told her as follows: “He will go to jail in today’s case. Then itstruck me that there was an earlier case. Then I told her he willescape with a fine”. Whichever version on this matter is accepted,the reply of the accused-appellant to Bissomenika gives theimpression that he knew before hand the nature of the sentence thatwould be passed. This gives consistency to the prosecution casethat he had asked Avis Singho for Rs. 50/- in order to get him a minorsentence.
Further, the accused-appellant's conduct in making no attempt toissue a receipt in Form 172 to Avis Singho after he accepted theRs. 50/- and the failure on his part to state his defence to I. P.Dharmapala at the first opportunity or even to the District Judge whoremanded him tend to militate against his defence.
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The Learned Trial Judge had rejected as false the accused-appellant’s version that Avis Singho had paid him Rs. 50/- as anadvance for a translation. However, that factor did not establish theprosecution case against the accused-appellant on Count (1) beyondreasonable doubt. The burden still remained on the prosecution toestablish the charge against the accused-appellant beyondreasonable doubt.
I have given my most anxious consideration to this questionwhether the prosecution has proved beyond reasonable doubt thatthe accused-appellant accepted the Rs. 50/- for a sinister purpose,namely, as an inducement or reward for his interfering with the dueadministration of justice in M. C. Homagama Case No. 22929.
However strong the inferences may be that could be drawnagainst the accused-appellant from his reply to P. C. Bissomenikaand from his conduct, still, the failure on the part of Avis Singho tocomply with the important instructions given to him by I. P.Dharmapala for the purpose of the raid which was initiated by hisown complaint, and the finding of the Learned Trial Judge that he hadnot spoken the truth, and by his being contradicted by Bissomenika,creates a reasonable doubt in the prosecution case as to whether theaccused-appellant accepted the Rs. 50/- from Avis Singho as a bribein order to get him a minor sentence in M. C. Homagama CaseNo. 22929. The accused-appellant is entitled to the benefit of thedoubt, and is therefore entitled to an acquittal on Count (1).
In respect of Count (2), it was conceded by Learned Counsel forthe accused-appellant that the prosecution had proved beyondreasonable doubt that the accused-appellant was a State Officer andthat he had accepted the gratification of Rs. 50/- and that the burdenwas on the accused-appellant to prove on a balance of probabilitythat he accepted this gratification which he was authorised by law orthe terms of his employment to receive.
Learned Counsel for the accused-appellant submitted that theLearned Trial Judge should have considered the evidence in respectof the charge separately, instead of considering both charges as anomnibus charge, and thereby overlooking the differences of thescope and operation of the standard of proof in respect of bothcharges.
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I disagree with that submission as the two charges are not distinctand separate charges but are similar charges having a commonfactual origin. The fact that the Learned Trial Judge had rejectedwithout hesitation the accused-appellant’s defence – it was notnecessary for him to arrive at a separate finding that in regard tocharge 2 he was not satisfied with the accused-appellant’s version ona balance of probability. The Learned Trial Judge has also come to afinding that the accused-appellant’s version was obviously false. Inthe light of these findings it cannot be said that the Learned TrialJudge has disregarded the evidence of the accused-appellant asregards Count 2.
Learned Counsel for the accused-appellant also submitted that asthere were material misdirections in the Trial Judge’s findings inrespect of Count (1) and that he had come to wrong conclusions,then this Court could not safely say that his consideration if any, ofthe evidence regarding Count (2) was correct. In suchcircumstances, this Court could review the evidence to see whetherCount (2) is proved.
The accused-appellant has made an unsworn statement from thedock. That was the only evidence called on behalf of the defence.This Court is in an equally disadvantageous position as the TrialJudge in a case where an accused person has not given swornevidence and has not been subject to cross examination, and incircumstances where his demeanour could not be observed. Thus,what is left for this Court in the present case, is merely to drawinferences from the accused-appellant's unsworn statement.
The accused-appellant in his unsworn statement has stated thaton the 14th November 1975, Avis Singho the complainant came withone Adin who was an employee of Mr. Samarajeeva Attorney-at-Law,Homagama, and gave him a copy of an appeal and requested him totranslate the same into English in triplicate. Then, as the translationwould take some time, the accused-appellant had asked Adin tobring it later with an advance. Then he said that on the 2ndDecember Avis Singho the complainant had come up to his table andhad bent down and said in a soft tone that he had brought theadvance, to keep it, otherwise that he might spend it. Then he saidthat he took the money into his hand. Then a female who had come
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with the complainant asked him whether her elder brother would goto jail and he replied “He will go to jail in today’s case. Then itstruck me that there was an earlier case. Thereafter, I told herthat I would save him with a fine.” He said that he did not tell herthat he would save her elder brother with a fine.
Learned Senior State Counsel pointed out that though theaccused-appellant stated that Avis Singho and Adin met him on the14th November and discussed with him the translation into English ofthe'Appeal and the payment of the advance for it, that when AvisSingho was cross-examined, it was suggested to him that it wasabout 4 or 5 days before the judgment was delivered that thisdiscussion with the accused-appellant took place – sentence in thecase was to be passed on the 2nd December. It is clear that theaccused-appellant's version of the date of this discussion isinconsistent with this suggestion. This suggestion is more consistentwith Avis Sigho's version that the discussion of the bribe took placeon the 26th November.
The accused-appellant's version that Avis Singho bent down andspoke softly to him is consistent with P. C. Bissomenika’s evidencethat Avis Singho got close to the accused-appellant and had spokensoftly to him and she did not hear what was spoken.
The accused-appellant’s version relating to the discussion withAvis Singho concerning the advance for translating the Appeal intoEnglish was disbelieved by the Learned Trial Judge who commentedthat no evidence was led by the accused-appellant, to support hisversion. It was open to him to have called Adin, Mr. Samarajeeva’semployee as a witness to support his version, but he had not doneso.
Regarding the question put by Bissomenika to the accused-appellant and the reply she received, I have already referred toearlier in this judgment. However, I would repeat my view on it as it isnecessary to do so in considering the unsworn statement made bythe accused-appellant.
Learned Counsel for the Defence, submitted that there were twocases pending against Avis Singho on 2nd December and that would
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give support to his evidence relating to the reply he gaveBissomenika.
Whether the accused-appellant’s version on that matter isaccepted or whether Bissomenika's version is accepted, there is noescape from the fact that the accused-appellant has given theimpression that he would influence the sentence. It would be relevantat this stage to refer to a very pertinent comment made by theLearned Trial Judge on this matter.
“It is strange how the accused knew in what way the Judgewould pass sentence on those who had pleaded guilty.”
The accused-appellant stated that after he was taken into custody,I. P. Dharmapala produced him before the District Judge and that hewas remanded. He stated that by his experience he thought it wasnot proper to tell the Inspector that he had accepted the money as anadvance fee for translations, because he was connected with theraid. This conduct of the accused-appellant is strange. He is asenior experienced officer of Court and being the InterpreterMudaliyar of a Magistrate’s Court he would have known that it wasimportant for him to tell his version, if the translation was an innocentand lawful one, at the earliest opportunity, to a person in authority. Ifhe did not want to mention this to Inspector Dharmapala, he hadevery opportunity to do so to the District Judge who remanded him. Ifhe could have told the Judge as follows:“He paid off a grudgeagainst Court,” he could then surely have told him that he acceptedRs. 50/- as an advance for the translation of the appeal into English.Then, he had every opportunity of informing the BriberyCommissioner of his version, but he had not done so. Though hestated that he wanted to tell his version of this transaction to a PoliceOfficer superior to I. P. Dharmapala, he had taken no steps to do so.It is very strange that it took him almost four and a half years after theincident, to divulge his version for the first time in Court.
The Learned Trial Judge also referred to the attempt made by theaccused-appellant to show that the complainant Avis Singho had agrudge against the presiding Judge by stating that he told the Judgethat the complainant had paid off a grudge against Court. The DistrictJudge was not called as a witness to support this allegation. This was
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referred to by the Learned Trial Judge who had made his commentson it.
Learned Counsel for the defence submitted that there was proof inthe evidence of witness Amarasekera of the Ministry of Justice thatthe accused-appellant was entitled to charge copying fees and thatthis was not referred to by the Trial Judge.
The entitlement to charge copying fees and Translation feesdoes not establish to any degree of proof that the accused-appellant accepted the Rs. 50/- from Avis Singho as an advancefee for translations. The evidence of Amarasekera established thefact that the accused-appellant should have issued a receipt in form,172 when he accepted the Rs. 50/- from Avis Singho, if the paymentwas for translations. He made no attempt whatsoever to issue areceipt to Avis Singho.
On a consideration of the evidence led in this case, I am of theview that the Learned Trial Judge has correctly rejected the version ofthe accused-appellant. The accused-appellant has failed todischarge his burden of proving on a balance of probability that hisacceptance of the Rs. 50/- was authorised by law or the terms of hisemployment.
For these reasons, I affirm his conviction and sentence on Count 2of the indictment, subject to the penalty of Rs. 100/- being reduced toRs. 50/-. I
I allow the appeal of the accused-appellant against the convictionand sentence on Count (1) of the indictment, and I acquit him onCount (1), and I dismiss his appeal against the conviction andsentence on Count (2) of the Indictment subject to the penalty ofRs. 100/- being reduced to Rs. 50/-.
ATUKORALE, J. -1 agree.
SIVA SELLIAH -1 agree.
Conviction and sentence on Count 1 set aside.
Conviction and sentence on Count 2 affirmed but penalty reduced.