027-NLR-NLR-V-73-W.-D.-A.-JAYAMANNE-Appellant-an-dC.-SIVASUBRAMANIAM-Officer-in-Charge-S.-C.-.pdf
Jayamannt v. Sivasubratnaniam
116
1969Present : de Kretser, J.
W. D. A. JAYAMANNE, Appellant, mid C. SIVASUBRAMANIAM(Officer in Charge, S.C.I.B., Colombo), Respondent.
S.C.21169—J.M.C.,Colombo, 37641Penal Code—Section 403—Cheating—Quantum of evidence.
Where A obtained a sum of money from B upon an undertaking that ho woulduso that money for securing for B, by bribing a Corporation official, a jobwhich was vacant in the Corporation, A is not liable to bo punished under. section 403 of the Penal Code for an offence of cheating if he foiled to securethe job for B and there is no evidence to show that he made no attempt, to ■bribe in connection with the job. The fact that the job- did not materialisemay only mean that A was unsuccessful in his efforts.
DE KRETSEK, J.—%Jayainannc v. Sivasubramaniom
119
Ax 'PEAL from a judgment of the Joint 3Iagistrato’s Court,Colombo.
T. S. P. Sznanayake, with V. E. Sehsarajah and D. P. Nendis, forthe accused-appellant.
Kosala Wijayatilake, Crown Counsel, for the Attorney-General.
Cur. ado. vult.
October 5, l'JO'.l. ue Kretsek, J.—
The accused in this case faced three charges of cheating before Mr.
S. Nethasinghe, the Magistrate presiding over the Joint Magistrates’Court of Colombo, who assumed the punitive powers of a District Judgefor the purpose of trying him. The charges were : (1) That he had deceived
H. P. Balasuriya on or about 15.1.67 into the belief that he couldsecure a job for his daughter.as a typist in the Fisheries Corporationand had thereby dishonestly induced Balasuriya to pay him Rs. 350.
That between 17.10.60 and 5.2.67 he had deceived G. A. Ariyaratneinto the belief that he could secure jobs for his brother and brother-in-lawas typist and Supervisor respectively in tbe Cement Corporation andthereby dishonestly induced Ariyaratne to pay him a sum of Rs. 950.
That between 25.1.67 and 5.3.67 he had deceived Emily Pereraof Wat tula into the belief that he could secure a job for her sister atRadio Ceylon on a salary of Rs. 300 a month and thereby dishonestlyinduced Emily Perera to pay him Rs. 450.
The .Magistrate allowed the application of the prosecuting Inspectorto withdraw count 1 on the footing that tbe evidence of the accused inCourt, showed that lie was going back on what he had told the Police.The Magistrate .who was shown the statement was presumably satisfiedas to the correctness of that submission.
Tiie Magistrate convicted the accused on the other two counts andtaking into consideration that the accused had repaid what he took andhad no previous convictions sentenced him to pay a fine of Rs. 250 indefault three months’ R.I. in respect of each count. The Magistratehad lost sight of the fact that a jail sentence is imperative in the caseof offences punishable under section 403 of the Penal Code. There isno need for mo to put that right in revision for in my opinion the Magis-trate should have acquitted the accused on all counts. The evidencemakes it clear that in each of these cases it was the person alleged tohave been deceived who had asked the accused who was well known tohim to obtain employment for the relation mentioned in the charge.An accountant in the Mercantile Investments Ltd., a clerk in the PortCargo Corporation, a retired operator of the Telephone Exchange wouldobviously know- that it was not in the power of a typist-clerk in the
120
DE K.RETSEK, -T.—Jayamaitiic v. £>ilasubnimaniant
Polico Office which is the post the accused held, to make appiontmeritsin the Fisheries Corporation, the Port Cargo Corporation or in Radio- Ceylon. And so they clearly knew that what accused was going to dowith the money lie asked for was to bribe someone in these offices whocould do so. Ariyaratue in fact says so, for he says “I accepted theposition, that the money was to bo paid to someone in the Corporation…. my sister and brother-in-law also accepted the position.”
Their acquiescence in taking no action when theaccuscd kept postponingthe date of the likely appointment points to the fact that? they realisedthat time and more than one effort on the part of the accused mightbe'needed for success, as docs the fact that they made no attempt tofix a date for the recall of the money if the effort- was unsuccessful.Ariyaratne says “because of the delay' I naturally' became anxious.”They all explain that why' they went to the Police was because accusedwas not to-be found. Their money was with him and they would jumpto t he conclusion that it had gone with him. But when he explained that,his keeping away was due to good reasons—ho had even been allowedto resume his post in the Polico Office—and that he would return theirmoney as he had not succeeded in obtaining the posts they were satisfiedwith his bona tides and said so to the Police.
It appears to me that there was no deception practised in that eachof the alleged victims knew why the money had t.o be provided. Thereis no evidence to show that tho accused made no attempt to bribe inconnection with the jobs mentioned, which the evidence shows wereavailable at the time. He can hardly be expected to divulge the namesof those whom he approached, and it would be the height of optimismto think that they would admit that ho had done so, and his false explana-tion to the Police in this regard is then understandable. Bribery in regardto the obtaining of employment is so notoriously rampant that it maywell be that the accused was taking advantage of the general impressionthat jobs in these places could be obtained by bribery to obtain moneyto what is popularly known ns “ roll ” if not to eventually misappropriate,but suspicion is no substitute for proof that the accused was takingmoney on representation that he was going to bribe someone and obtaintiie job for these people, and was making in reality no effort to do so.The fact that the jobs did not materialise may only mean accused wasunsuccessful in his efforts. I allow the appeal of the accused and acquithim. It appears to mo that this is a case into which the Bribery Commis-sioner should make some investigation. I therefore direct that the Recordin this case be sent to him for reference and return thereafter by him tothe Magistrate.
Appeal allowed.