SAMARASINGHE v. SAMARASEKERA

026-NLR-NLR-V-37-SAMARASINGHE-v.-SAMARASEKERA.pdf


POYSER J.—Samarasinghe v. Samarasekera.
131
1935Present: Poyser J.
SAMARASINGHE v. SAMARASEKERA.
78—P. C. Matara, 3,833.
Urban District Council—Payment of rates and taxes by candidate of personsnominating him—To avoid objection to nomination—No corrupt motive—Ordinance No. 11 of 1920, s. 36 (2).
Where a candidate for an Urban District Council election depositeda sum of money on account of any rates and taxes due from certainpersons, who had nominated him, in order to avoid any objection beingraised to the nomination papers and subsequently withdrew the money,no objection having been made,—
Held, that his conduct did not amount to the giving of a gratificationwithin the meaning of section 36 (2) of the Local Government Ordinance,No. 11 of 1920.
PPEAL from a conviction by the Police Magistrate of Matara.
R.L. Pereira, K.C. (with him Rajapakse and Senanayake), for accusedappellant.
H. V. Perera (with him S. W. Jayasuriya) for complainant, respondent.June 19, 1935. Poyser J.—
The appellant has been convicted, under section 36 (2) of OrdinanceNo. 11 of 1920, for making a payment to the Urban District Council ofthe rates and taxes due from certain voters with the object of inducingthe said voters to exercise their electoral rights in his favour. Therewas very little dispute as to the facts which are briefly as follows:—The appellant was a candidate for Ward No. 3 in the Matara UrbanDistrict Council elections. On nomination day, November 17, 1934,he went with his nomination papers to the Urban District Council Offices.The appellant had . 22 nomination papers but attached particularimportance to two of these, viz.:—one in which he was proposed byKarunanayaka and seconded by Coopman, and another one in which hewas proposed by Goonewardene and seconded by White. He attachedimportance to these particular nominations as he considered the above-mentioned persons were the most respectable of those who had signednomination papers on his behalf.
At the Urban District Council Offices the appellant heard a rumourthat his opponent was going to raise an objection to these nominationpapers on the ground that the persons signing them were in arrearswith their rates and taxes.
The appellant then, after a consultation with the clerk of the UrbanDistrict Council, in the course of which the latter suggested a depositof Rs. 50 in case he himself was in arrears, deposited a sum of Rs. 400on account of any arrears due by these proposers and seconders. Infact these persons were in arrears with their rates and taxes to the extentof Rs. 311.
When the Assistant Government Agent received the appellant’snomination papers no objection was recorded nor in fact could anyobjection have been recorded on the grounds that the proposer or seconderwere in arrears with their rates or taxes.
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POYSER J.—Samarasinghe v. Samarasekera.
A person is not entitled to have his name entered on the electoralroll if he has not paid all rates and taxes due by him (section 28 (2) (b) ),but there is no provision in the Ordinance requiring that all persons whonominate candidates shall have paid all rates and taxes that are due.
After the appellant’s nominations had been received by the AssistantGovernment Agent the appellant tried the same day to recover theRs. 400 he had deposited ; according to Goonewardene, the Secretaryof the Urban District Council, the application was made at 1.15 p.m.
This application was refused as the money had been sent to theKachcheri and he was told to make another application.
On November 21 the appellant applied again and the sum of Rs. 400was refunded to him. The Police Magistrate considers that the officialsof the Urban District Council acted improperly in permitting this refundbut 1 do not consider that point of importance in regard to the appellant.
The question in this case is whether the appellant’s conduct amountedto giving any gratification to the persons previously mentioned as amotive or reward for giving or promising to give their votes in his favourat the election. This question is not free from difficulty. There aremany points in favour of the appellant. He acted perfectly openly.He deposited the Rs. 400 at the Kachcheri in his own name in the presenceof a number of people. His immediate object was to avoid any objectionbeing raised to his nomination paper.
As the appellant himself has stated:—“If I was depositing this moneyas a bribe I should have sent others to pay it. I wanted it to remain asa temporary deposit to perfect my nomination papers. ”
Further, when no objection was made to his nomination papers heimmediately, applied for the withdrawal of the sum he had deposited andin fact withdrew it four days afterwards.
The only authority cited which has any bearing on the point to bedecided is a 'case under section 49 of 30 & 31 Viet. C. 102, whichlays down that the payment of rates to influence a vote at a futureelection is bribery. In that case, Oldham, Election Petition, Grandridge’sCase,' it was held that—
“ Paying the rates of a voter in order that he may be registeredis not bribery unless done corruptly and to influence the voter.Where, therefore, S, a partisan, paid the rates of G, who was of hisown politics, to enable him to be placed on the register, and both Gand S knew perfectly well that the payment was made with a view tothe election, it was held this was not within the Statute and the voteof G was good. ”
In this case it can be assumed that the persons who signed nominationpapers for the appellant were his supporters and were going to vote forhim, there was consequently no apparent need for him to give them anygratification for voting in his favour.
The Magistrate, however, has held that this money was depositedfor the sole purpose of pleasing his supporters and save them from anydisgrace or humiliation which they would have been exposed to if thequestion was raised, as it undoubtedly would have been, if arrears stood^against their names.
1 20 Law Times R&p. NS.t 311.
Silva v. King.
133
I do not think the finding of the Police Magistrate is altogether justified;there was no evidence that the appellant’s opponents had made anyinquiries into arrears of rates due by persons who nominated the appellantor that they had any intention of objecting to the appellant’s nominationpapers on these grounds, and in fact no objection could have beensustained on these grounds.
The Police Magistrate has, in my view, correctly observed that thepoint in the case is whether the appellant has acted corruptly. I do notthink that the evidence sufficiently establishes that the appellant didso act.
The persons on whose behalf the appellant deposited money in theKachcheri have all denied that they were aware of his intentions to doso. Their evidence the Police Magistrate rejects on the ground that if<they admitted knowledge of the appellant’s contemplated action theythemselves would be guilty of an offence.
On the other hand the Police Magistrate describes these persons aselderly respected people and certainly Goonewardene and White, bothpensioned Government officers, who were in arrears for a small sum forconservancy fees, appear to be thoroughly respectable.
There is consequently some doubt as to whether the evidence justifiedthis finding of the Police Magistrate.
Having carefully considered all the evidence in the case, I am of theopinion that the appellant’s object in paying this sum to the UrbanDistrict Council was as stated by him, viz.: to avoid objections beingtaken to his nomination papers, and I do not think he made this pay-ment with the object of pleasing his supporters or for inducing them tovote for him.
No doubt the appellant acted extremely foolishly but I do not thinkthe evidence proves that he acted corruptly. The appeal is allowed andthe conviction set aside.
Set aside.