SILVA v. COORAY

005-NLR-NLR-V-33-SILVA-v.-COORAY.pdf


Silva r. Cooray.
25
1081Present: Drleberg J,
SILVA v. COORAY.
182—P.C. Colombo, 22t418
Bribery—Employmentof canvassers forpayment—Employmentof voter
for canvassing—Purchase of vote—Act of agent—Liability of candidate—Ceylon (Legislative Council) Order in Council, 192$, Article 46, sub-section (J) (a) and (<*).
Employment, for payment, of a canvasser, who is not a voter, ianot bribery witbiu the meaning of Article 46, „ sab-section (1) (c), of theCeylon (Legislative Council) Order in Council, 1923. Payment to avoter for canvassing is not bribery, uolesa the payment is made for thepurchase of his vote.
Where the accused (a candidate for election to the Legislative Council),placed a sum of money with his agent for the purpose of obtaining votesthroughcanvassers, andtheagent, indoing so,committed acts of
bribery.—
Held,thatthe accusedwasnot guiltyofbriberyunless he authorized
or connived at the acts of the agent.
T
HE accused was convicted of three charges of bribery under Article 46of the Ceylon (Legislative Council) Order in Council, 1923.
On the first charge he was convicted of giving through his agent asum of Rs. 25 to T. S. Daniel, a registered voter of the Colombo SouthElectorate, to induce him to vote for him. On the second charge he wasconvicted of a similar offence by payment of Rs. 25 to another voter,M. S. Perera.
On thethirdcharge hewasconvictedofhavinggiven through his
agent a sum ofRs. 107.50to G. ]$ajaratnamin order to induce him to
procure or endeavour to procure his return as a member of the LegislativeCouncil.
H. I. Perera, for accused, appellant.—Rule 4 of the Order in Councilspecifies the persons who may be employed for payment. The employ-ment of any others, e.g., c'anvassers, is only an illegal practice undersection 17. and not a corrupt practice within the meaning of Art. 46,section 1 (c). The application of this section is limited to t4 procuring ”,
e., the purchasing of influence, and does not extend to mere canvassing.{11, Rogers 291: Lambeth Case Coventry Case Tamworth Case3,Plymo'uth Case 4, Rambulcwslle v. Silva,.*).
Though payment to canvassers would be within the. words of thesection, the Court must have regard to the mischief aimed at by the lawand the history of the statute in construing the section. {Beale LegalInterpretation, p. 407-9: BradlaAigh v. Clarke Dyke v. Elliot 7.)
Agency in election petitions has a special significance. Section 39deals only with election petitions. {RambukweUe v. Silva ®.)
1 (1857) W. db U. 129.5 (1924) 26 N. L. R. 231.
* 1 O.'M. & H. 97.3 1 0:M. & H. 79.< 7 O'M. <* H. 101.
• (1833) 3 A. C.,atp. 372.
(1872) L. R. 4 P. Cp. 191.
26 N. L. R.y at p. 246.
26J)KIKBERG J.—Silva tt. Cooray.
In a criminal prosecution it is necessary to prove that there wasAuthorisation expressed or implied to do the particular act or particularclass of acts. (77. Roger*1, p. 386, 390, 406: Cooper v. Slatlr. Greenoch>Case a.)
J.E. M. 0beye8ekere, C.C. (with him M. F. S. Pulle, C.C.), for theCrown, respondent.—There can be little doubt that de Sovsa made thealleged payments. The question is whether the appellant authorizedthem or had knowledge of them. All the circumstances point in thisdirection. De Soysa undoubtedly had charge of the appellant's electoralcampaign in Maradana. The appellant placed him in charge of a fund,from which these payments must have been made. The necessaryinference is that the appellant knew to what purpose this fund was put.(7lewdly Cane :t.) The return of election expenses furnished hv theappellant is manifestly false. See 1 O'M & H. 30. On question ofauthorization see Cooper v. Slade 4 for degree of proof necessary.
The payments were undoubtedly made to influence the votes of thesemen. Their employment, if any, as workers was colourable only.(77. Hagers, p. 974.)
The evidence objected to is admissible under section 10 of the EvidenceOrdinance. There is evidence oi a conspiracy. (Amir AH, p. 155;Ilescoc, Criminal Evidence (13th ed.), p. 354.) An issue as to con-spiracy is not necessary. (1909) 37 Calcutta 91.)
In any case, the appellant would be guilty of an illegal practice as headmits that he authorized the employment of canvassers. The appealCourt can vary the conviction under section 347 of the Criminal Pro-cedure Code (The King v. Baron Silva et als.
II. V. Per era (in reply).—Section 347 applies only if the original chargenecessarily implies a charge of the smaller offence. Bribery and illegal-practice are not offences of the same class and a charge of bribery does notnecessarily imply a charge of illegal practice. The accused should beprejudiced under section 347 (Windus v. Veeravpen r*; Shoni CriminalProcedure Code, section 937, commentary.)
July 7, 1931. Drieberg J.— •
The appellant appeals from a conviction on three charges of bribery-under Article 46 of the Ceylon (Legislative Council) Order in Council, 1923..The first two charges are of bribery of voters under sub-section (1) (a) of theArticle and the third is under sub-section (1) (c). I shall first deal withthe last charge, which stands on a different footing from the first two.
On this charge the appellant, was convicted of having given on June 10.1930, through A. H. T. de Soysa a sum of Rs. 107.50 to C. Rajaratnamin order to induce him to procure or endeavour to procure the return ofthe appellant as a member of the Legislative Council.
The appellant had named himself as his own election agent but it isclear that he had De Soysa to represent him and make payments at theelection office in Maradana for that area. Rajaratnam is not a registered
1 (16M) 6 H. L. C. 746.* i O’M. <fr H. 249.O’M. & B. 21.
4 10 E. R. 1488.
4 T.C. L. R. 3.
8 C. W. R. 11.
27
DRIEBERG J.—Silva v. Cooray.
voter but he makes a business of canvassing at elections. He says hewas asked by De Soysa to work for the appellant. He told De Soysawhat his terms were and the remuneration for the staff he needed, a^supervisor and eight assistants. He says he worked it out on a salarybasis as he had done ;it> previous elections. De Soysa said he wouldconsult the appellant and later said that he had done so and that theappellant agreed to his terms. He then gave De Soysa a list of his staff,Karunaratne as supervisor who was to receive the same amount as himself,Rs. 50, and five workers, Junaid, U. S. Perera, Mathis Perera, AlbertKristnaratne and Dep. each of whom was to receive Rs. 25. P 8 is a list ofpayments made to these men. Bs. 107.50 is a half of the sum of Bs. 225due to Bajaratnam and his fellow-workers after deducting a previouspayment of Rs. 10; this sum of Bs. 107.50 was paid to Bajaratnam,and his and Kai*unarattie’s acknowledgment was noted on P. 8. I accept(the evidence that part- of it was written by De Soysa and that it is anaccount by him of the payments then made by him to these men forworking 2nd and 3rd Divisions, Maradana, Kynsey road. Campbell place,Thurston road, and Borella. P 7 is also a list of these workers and theirremuneration. It is said by the handwriting expert, Mr. Symons, tobe in De Soysa’s handwriting but the identification of it by Daniel as oneof the papers taken by him from the Maradana office is not clear and i.t isnot necessary to consider it for the purpose of this charge.
Bajaratnam and his staff, none of whom had votes, worked as paidcanvassers and 1 accept the evidence that they were paid for their servicesbv De Soysa and I accept the finding of the Police Magistrate that thiswas done under the directions of the appellant.
But the employment of canvassers for payment is not bribery withinthe meaning of Article 46 (1) (c), I am dealing now with the simple-case of the employment as a canvasser of one who has no vote: where a■voter is engaged for payment as a canvasser spmewhat differentconsiderations arise.
Rule 4, made under the Order in Council, specifies the persons who maybe engaged for payment—an election agent, a polling agent for eachpolling station, and a reasonable number of clerks and messengers. Theemployment of any others, e.g., canvassers for payment, is an illegalpractice which would render the candidate liable under rule 17 on con-viction to a fine of Rs. 300 and render him incapable for a period of threeyears of voting at any election and of being elected a member of theLegislative Council.
The Lambeth Case 1 and the Coventry Case 2 were governed by theprovisions of 17 & 18 Viet. c. 102 (1854); section 2 (3) of that, statutehas the same wording as Article 46 (1) (c) and enacts that the person soacting shall be guilty of bribery and shall be punished accordingly. Itwas held in the Lambeth Case that the statute did not extend to paidcanvassers though emplojed on a very extensive scale. The report isnot available, and I am quoting from jthe reference to it in II Rogers (20thed.) 291; it is also referred to by Willes J. in the Coventry Case.
{1857) W. <£? D. 129.
1 {1869) 1 O'M. 4 H. 97.
28
DRIEHEKti J.—Silva c. Cooray.
In the Coventry Case it was held that, though this section, taken in itsliteral terms, would extend to payment to canvassers to induce them toprocure votes by canvass, its proper application was limited to thepurchase of influence—" a payment to some person who has influencein a place in order to purchase that influence; it must be a payment orgift, or loan of something valuable, to him in consideration of his lendinghis influence or his countenance in the election The distinction inprinciple between such a person and one engaged and remunerated merelyfor his work as a canvasser is clear; cases may occur where the applicationof the principle is difficult, but the case of Kajaratnam presents no suchdifficulty.
It was apparently not until the Corrupt and Illegal Practices PreventionAct, 18831 that payment to canvassers was declared an illegal practice;the local rules on this point are taken over from section 17 and schedule 1of that statute.
The difference in these two forms of employment was recognized inlater legislation in England. In the Municipal Corporations Act, 1882 2bribery for the purposes of the Act was declared to be the same as underany parliamentary Act in force at the time and punishable in the samemanner. The parliamentary Act then in force was the Act* of 1854,3section 2 (3) of that Act has the same definition of bribery as Article40 (1) (c) which was punishable as a misdemeanour by fine andimprisonment, the offender being further liable to forfeit .€100 to theparty suing. The Municipal Corporations Act of 1882 had a specialprovision, section 82, prohibiting the employment for payment orreward of a burgess of a borough as a canvasser- and making the personso employing one liable on conviction to a fine of €10. If paymentto any canvasser was bribery under provisions of the earlier section 77,there was no occasion for the prohibition in section 82 of theemployment of particular persons as paid canvassers; further, if pay-ment to a canvasser is an offence, the employment of one who is a voteris a much more serious offence for it is open to the suggestion that paymentwould necessarily secure the vote of the canvasser, yet we find the penaltyin the case of employment of a voter much less severe than in the case ofone who ha6 no vote. ;
In the case of RambuhweUe v, Silva4 the election of the successfulcandidate was declared void on an election petition on the ground of briberyunder Article 46 (1) (c). Sir Anton Bertram C.*T. there quoted withapproval the Coventry Case and examined the evidence that the personto whom the candidate gave financial aid and who canvassed for him byspeaking in public and by publishing pamphlets bearing his name was aperson in a position to influence votes. This was entirely irrelevant, ifpayment to any canvasser is bribery within the meaning of Article 46
(c)-
This distinction has been recognized in a case decided in 1629, thePlymouth Case *. The. charge there was of bribery, not by the candidateMoses, but by Ballard who was said to be his agent. Ballard was aphilanthropist who had founded in Plymouth a Boys' Club or Institute of
1 46 <fc 47 Piet., c. SI.* 27 4t 18 Vietc. 102.
* 45 df 46 Viet., c. SO.* (1924) 26 N. L. It. 231.
* 7 O'M. <6 B. 101.
DRIEBEKQ J.Silt a v. Co may.
29
about 7,000 members whom he organized as a band of canvassers in supportof Hoses. Ballard promised the boys for their efforts food, fireworks,and entertainment if they were successful and further said that if theywere not he would consider closing the club; dealing with this aspect ofthe case Talbot J. said:'*1 agree with the contention of the learned
cQunsel for the defence that it was really an offer to the boys of an induce-ment tc them to be active in promoting the election of Mr. Moses.Whatever else this might bet it is not bribery." Though payment to acanvasser would be within the words of this section it is open to a Courtto hold as a matter of construction that it is not within the purview ofthe section—see Bradlaugh v. Clarke where the cases on this point areconsidered on page 372. On the question whether this constitutesbribery T cannot do otherwise than follow the settled opinion of the HighCourt of England on a statute the provisions of which are identical withours.
The Police Magistrate held that the construction in the Coventry Casewas a relic of the days of pocket boroughs and that he was not obliged toread that meaning into Article 46t but that even for the purpose of thatconstruction there was evidence that Bajaratnam was a well known,man in Maradana and that he was paid to use his influence as well as tobuy or treat prospective voters. The purchase of votes rather negativeshis ahility to secure them by his influence and the same observationapplies to treating which is an entirely different offence. All that weknow of Bajaratnam on this point is his statement that at anotherelection he had been invited as a man of influence to work for a candidate.He approached 70 or 80 voters but could not say how many had consentedto vote for the appellant. He says he is a dealer in curios at 2ndDivision, Maradana, which is not a position in which he could exerciseinfluence. The* evidence shows that he is nothing more than aprofessional canvasser.
For these reasons I am of opinion that the third charge of briberymust fail.
On the first charge the appellant was convicted of giving on June .10,1980, through De Sovsa a sum of Bs. 25 to T. S. Daniel, a registeredvoter of the Colombo South Electorate, to induce him to vote for theappellant, and on the second charge he was convicted of a similar offencecommitted on the same day by payment of Bs. 25 to another voter,M. S. Perera. It has to be considered whether these payments weremade, and if so, whether they amounted to bribery; the further questionarises of the criminal responsibility of the appellant for these payments.
P5 is a statement of the amounts to be paid for the supervisors andworkers, as they are termed in it, of certain parts of the Maradana sectionof the constituency. Against each is noted the names of the supervisorsand workers and-the words '* No. of voters. ", but the number is onlyentered in the case of the Dean's road section; it is 204. The remunera-tion of the supervisors and workers is noted against Arab place andDean's road; P8 is a similar document dealing with 2nd and 3rdDivisions, Maradana, and certain other roads. P5 has against the name-of Abdul Hamid as supervisor Bs. 75; and Bs. 50 against each of the*
1 (10**) 5 A. C. 3S4.
80DRIBBERG J.—Silva v. Cooray.
workers Daniel, M. S. Perera, Mohamed Saleem, Tj. J. Perera, ThasimNona, and Subadasa, the last three of whom were not registered voters;Thasim Nona is a mistake for Thasim Nana, a Muslim. It does notappear whether Mohamed Saleem had a vote. The .total of thesepayments, Rs. 375, is noted; on the margin is written “ Pd. Rs. 200 ”und this is entered against the total of Rs. 375 and the balance, Rs. 175,struck. Daniel speaks to De Soysa writing P 5 in his presence. It is■difficult to believe the evidence of De Soysa on important points regardingthe Maradana office, his position there, and what he did there, andas difficult to believe the appellant regarding these matters. Mr. Samara-weera is the Courts reporter of the “ Ceylon Independent he was one ofthe polling agents for the appellant at the Maradana Station, and I mustpresume he was a person whom the appellant trusted, the other agentbeing Mr. 0. A. Jayasekera, a well known proctor. He worked with DeSoysa and knew that he was acting as the appellant’s agent at theMaradana office. De Soysa admits that canvassers would report theprogress of their work and information about votes which he would ■record and file. Yet he says he did not know Daniel or M. S. Perera whowere often at the office according to Samaraweera. De Soysa has notproduced any record made by him at the time ol the arrangement of-canvassers and his disbursements. It is clear that be must have keptsuch p. record and I believe that P 5 is a part of it.
Mr. Perera contended that even if P 5 was a part- of De Soysa’s record ofhis payments, such payments being remuneration to canvassers wouldnot be bribery and -that Daniel and M. S. Perera should not be believedwhen they say that payment was to secure both their votes and theirservice for they were paid the same as canvassers who had no vote.
Payment to a voter for canvassing is not of itself bribery though it is,an illegal practice. Whether it is bribery is a question depending onwhether the payment was made to influence the canvasser’s vote. Thecase of M. S. Perera in particular was not in my opinion a bona fidepayment to a canvasser. He had a tailoring shop at Maradana whereDavid de Zilva, a shoemaker, worked. David de Zilva had a son Francis,and Wiekreinesinghe, also referred to as Wickrama-aratchi, boardedwith them; they were all registered voters. M. S. Perera said that hehad been seen by a canvesser of the other candidate, Col. JayewaTdene.and had decided to give him his vote. Later the appellant came to himwith Abdul Hamid and asked him for his vote and his support but hedid uot consent. Thereafter he was taken by Abdul Hamid to theMaradana office where he met De Soysa. The other five workers appear-ing in P 5 were there. De Soysa said the appellant had spoken to himabout him and that he would give him Rs. 50 for his vote and those of the■ other three, the two De Zilvas and Wickremasinghe. He agreed and wasthen given Rs. 25; he says he would not have promised to vote for theappellant except for the promise of payment. All that he did was to goin a car provided by Hamid to see De Zilva and Wickremasinghe atKotahena and. Mount Lavinia and get the promise of their votes,. Hereported this to the Maradana office and on the day of the election hetook the three voters to the polling station in a car given him by Hamid.David de Zilva, who was called by the defence, admitted that on being
DBIEBEBG J.—$ttoa t>. Cooroy.
31
asked by M. S. Perera he promised to give his vote to the appellant andthat he undertook to get for him the other two votes.
Even apart from the evidence of the promise of payment for his vote,his employment as a canvasser was in my opinion merely colourable andthe arrangement was in fact and reality a purchase of his vote and thoseof the other three. Rs. 50 is a very large sum to a person in Perera’sposition and the only work he had to do in return for it was to go withHamid Jg make a formal request of the other three for their votes. Hewas apparently quite sure that they would vote as he wished even beforehe had asked them. Apart from personal expenses of a candidate theelection expenses allowed for his electorate is 75 cents for each electoron the register; the cost of each of these four votes Avas Rs. 12.50.
But there is the express evidence of Daniel and M. S. Perera that DeSoysa, in paying them, secured the promise not only of their help butof their vojtes. The Magistrate fully realized that great caution ■ wasneeded in accepting this evidence and he has formed a clear opinion thatit is true. I see no reason to differ from him. Daniel and Perera beingthemselves guilty of an oifence and accomplices of De £>oysa theirevidence needed corroboration; sufficient corroboration is afforded bythe writing P 5. The fact that others who were engaged at the same timeand who had no votes were paid the same amount does not necessarilyaffect the evidence of the return Daniel and M. S. Perera were to makefor the payment to them. It is not known what services the othersrendered.
It being proved that De Zoysa did procure the votes of Daniel and M. S.Perera by bribery, it remains to be considered whether the appellant iscriminally responsible for this. He is charged with having bribed them,using De Soysa as a medium for the purchase, and this had to be proved.
The Magistrate has found that the appellant placed De Soysa in fundsand that these payments were made with his authority, but he says inany case, whether the appellant knew that De Soysa was bribing voters. or not. the law quoted by counsel for the prosecution definitely shows-that he is guilty as principal under section 46 of the order. This is notso. One argument for the prosecution was that under section 39 briberyis a corrupt practice on the part of a candidate if committed by an agent,even without his knowledge or consent; but that is for the purpose ofdeclaring the election void under that section. In the case of briberyas a crimihal offence the ordinary principles of the criminal law applyand individual guilt must be proved. Except where otherwise expresslyor by necessary implication provided by statute, no principal is criminallyliable for any act or omission of his agent unless he authorized or connivedat such act or omission (Hardcastle v. Beilby 1 and Wake v. Dyer2), The-cases cited by counsel are examples of liability existing by implication.In Mousel Brothers v. London and North-Western Railway Co* cited bythe prosecution, the general rule of the principal's freedom from criminalresponsibility for the acts of his agent was stated and the statute was *considered from the point of view whether the Legislature had prohibitedan act or enforced a duty in such words as to make the 'prohibition or-
* (1892) 1 Q. B. 709.* (1911) 104 L. T. 443.* {1917) 2 K. B. 83$.
£. M
32
.DRIEBERG .1.—Silva v. Cooray.
-duty absolute, in which case the principal would be liable if the act wasin fact done by his servant. To ascertain whether the particular statutehad that effect or not Atkin J. said: “ Regard must be had to the objectof the statute, the words used, the nature of the duty laid down, theperson on whom it is imposed, the person by whom it would in ordinarycircumstances be performed, and the person upon whom the penalty isimposed ”. There was in the Railways Consolidation Act. 1845, a provisionthat every person being the owner or having care of any carriage or goodson a railway should give to the collector of tolls an exact account inwriting of the number and quantity of goods and the respective quantitiesliable to each toll. By section 99 of the Act it was made punishable asan offence for any person to fail to give such an account, or to give a falseaccount with intent to avoid payment of toll. It was held that when afalse account was so given by their servant the owners, the defendantCompany, was guil.ty without a mens rea. The principal grounds of•decision were that an absolute duty was cast on the Company of givingthe collector of tolls an exact account of goods for revenue purposes,and that, being a duty which ordinarily would be performed by itsservants the Company would be liable for a false account submitted bythem.
Two cases cited are illustrations of absolute nrohibitions, under theFood and Drugs Act (Pearks, Gunston, and Tee v. Ward '), and under theLicensing Act, 1872 (Mullins v. Collins"). In Mullins v. Collins (supra) theprovision in question made it an offence for any licensed person to supplyliquor to any constable on duty except on the authority of the superiorofficer of the constable. It was held that the licensed person was liablewhere bis servant so supplied liquor to a constable; this too is an exampleof an absolute prohibition on a licensed person in regard to a class ofacts which would ordinarily be done by servants. The other case citedfor the prosecution (Cooper v. Slade3), deals only with the question ofwhat amounts to authorization of an act of an election agent. A questionarose in the committee room whether paying the expenses of out-voterswas legal. The candidate consulted a law book aud said that paymentof out-of-pocket expenses was legal. The agent without any furtherdirection added in n letter to a voter a postscript that his railway expenseswould be paid. It was held that the candidate must be regarded asauthorizing the postscript.
These cases are no authority for the proposition that the appellant iscriminally liable for acts of bribing by De Soysa whether he knew of themor not. It is to be regretted that the Magistrate was led to accept thisview or the law; so far as the verdict against the appellant is based onit the conviction is bad and the question arises whether there is evidenceto support the finding that he authorized the bribing by De Soysa and-further whether the value of that finding is so impaired by the mistakenview of the appellant’s liability merely as principal as to render a-conviction based on it bad.
It has been proved that the appellant provided De Soysa with Rs. 500,that he was the appellant’6 agent at Maradana and that he engaged andpaid canvassers and supervisors to control them. There is evidence that* {1902) 2 K. B. 1.• {1874) 9 Q. B. 292.• (1858) 6 H. L. C. 746.
DRIEBERG J.—Si&o v. Coot ay.
33
in the case of Rajaratnam and Karuuaratne that De Soysa told themthat he had referred to the appellant their claims, for remuneration andthat the appellant had agreed to (hem; an objection was taken to thisevidence on the ground that the condition for its admissibility undersection 10 of the Evidence Ordinance had not been established, but it isnot necessary to consider this; Bajar&tnam and Earunaratne had novotes and if this evidence is accepted it proves nothing more than thatthe appellant was engaging through De Soysa canvassers for payment.The Magistrate has found, and T think rightly, that the appellant arrangedthat this should be kept secret for he could not have shown thisexpenditure without confessing to an illegal practice, which would havecost him his seat; but I cannot infer from De Soysa .being given authorityto engage canvassers for payment that he was given authority to bribevoters.
Daniel was first approached by Abdul Hamid who told him he wouldget him payment if he would agree to work for the appellant. He wasthen taken to De Soysa who, he says, offered him Rs. 50 if he would votefor the appellant and get his friends* votes for him. Daniel never saw theappellant. He canvassed votes and went to "the office four or five timesacid reported results to De Soysa. There is nothing to connect theappellant with what De Soysa told Daniel when he engaged him beyondthe general responsibility which the appellant had for what De Soysasaid and did there.
M. S. Perera was first seen by the appellant, to whom he was introducedby Abdul Hamid. The appellant told M. S. Perera that he should votefor him and help him. M. S. Perera said that he would consider thematter. Later Abdul Hamid took him to De Soysa who told him thatthe appellant had spoken about him and De Soysa then offered himRs. 50 for his voAe and those of the other three. I do not think it mustnecessarily be inferred from this that the appellant had authorizedDe S.ovsa to stipulate for M. S. Perera’s vote as well as his aid as canvasser.1 ilo not know whether the Magistrate has believed Perera’s evidenceon this particular point.
He found that the appellant gave De Soysa Rs. 500 for the purpose of4< gaining votes ” and that De Soysa spent it with the knowledge, con-nivance, and authority of the appellant. Regarding these two charges,he says that it was not to be believed that the payment was not to securethe canvassers’ own votes as well. This can be said as well of every casewhere a voter is employed as a canvasser. It is not easy to say in everycase whether a voter has beer: engaged as a canvasser in order to securehis vote. But, as I have pointed out in the case of Mi S. Perera, hisemployment was merely colourable and ii it could be shown that theappellant knew what was expected, of M. S. Perera for the Rs. 50 paidhim there would be a case against the appellant. But I do not think thishas been brought home to him with the certainty which would justifya conviction. The appellant says he paid little attention to Maradanawhere canvassing would not much affect his chance of success, andconcentrated on the southern end of the constituency where he waswell known. At the poll he got for the southern section, Wellawatta,and Colpetty, 1,677 votes against his opponent's 1,023; in the Maradana
2J. N- A 99010 (8/50)
Si
QRIEBERG J.—Nicholas v. Fernando.
Ward he got 289 votes and his opponent 315. The evidence of all thewitnesses shows that he had very little to do directly with the Maradanaoffice. Daniel never met him at all. M. S. Perera, after the appellantvisited him at his shop, never saw him again, though both Daniel andPerera were often in the office. Kajaratnam, a prominent worker—he was paid as supervisor—says he never met the appellant at any time;Karunaratne who had the same position saw him once in the office, butdid not speak to him. In view of this evidence I think the appellant'sevidence of his connection with the Maradana office and that he wasthere for a few minutes on only two or three occasions should be believed.
The circumstantial evidence—there is no direct evidence—does nomere than show that the appellant placed money with De Soysa for thepurpose of procuring votes by canvassing agents; it does not necessarilyshow that he authorized De Soysa to stipulate for the votes of Danieland M. S. Perera or, in the case of the latter, that he knew before or whenDe Soysa made the payment how little service was expected of him as acanvasser.
1 set aside the conviction and acquit the appellant.
Set aside.
♦
1931