CA
243
WIJERATNE BANDARAvs.
DIRECTOR GENERAL OF PREVENTION OF BRIBERY ANDCORRUPTIONCOURT OF APPEALBALAPATABENDI, J.
DE ABREW, J.
CA 138/2001
H. C. COLOMBO B 1121/95APRIL 29TH, 2005MAY 25TH, 2005JUNE 20TH 2005
Bribery Act – Sections 2(a), (b), 20(b), 28(b) – Trial – Convicted – Charges generaland ambiguous ? – Wider construction to be given – Code of Criminal ProcedureAct – Section 165.
The accused -appellant was indicated on two counts for committing offencesunder Section 28(b) of the Bribery Act. After trial the High Court Judge convictedthe accused appellants.
On appeal it was contended that :
Section 20(b) on its own makes reference to seven instances where theconduct amounts to offences, as spelt out in section 20(a), even though theseven instances which spelt out in section 20(a) are contained in items (i) to(vii), the charges in the indicment did not specify the offences committed withreference to any of the limbs (i) to (vii) or section 20(a).
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Held
Section 20 is designed to punish those who use the advantage ofpersonal or family position for the actual or pretended purpose ofinfluencing the commission by offici als of offences under other sectionsof the Act.
The legislature intended to prevent or punish even ordinary citizen whoaccept gratifications as inducement to influence public offcials with aview to acting or not acting in a particular way in the discharge of theofficial functions;
The words “grant or benefit” in section 20(vi) must be widely
construed ;
The two charges have specified the purpose of soliciting and acceptingthe money,and thus contain all necessary particulars enough to givethe accused appellant a notice of the nature of the offence chargedwith.
APPEAL from the judgment of the High Court of Colombo.
Cases referred to :
Gunasekara vs. Queen, 70 NLR 457
Perera vs. Attorney – General 1. Sri Kantha LR 73(sc)
Dr. Ranjith Fernando with H. Gunawardena for accused appellant.
M. Liyanage, Deputy Director General, Bribery Commission for'complainant
respondent.
Cur.adv. vult.
October 6, 2005JAGATH BALAPATABENDI, J.The Accused-Appellant was indicted on two counts for committingoffences under section 28(b) of the Bribery Act. After trial the learned High
CA Wijeratne Bandara vs. Director General of Prevention of Bribery and 245
Corruption Jagath (Balapatabendi, J.) •
Court Judge convicted the Accused-Appellant as charged, and sentencedhim to 5 years R. I. on each count and directed that both sentencesshould run concurrently, and a fine of Rs. 2500 imposed on the 1st countin default one year R.l, a fine of Rs. 2500 imposed on the 2nd count indefault one year Rl, a further penalty of Rs. 3,000 imposed in default oneyear R. I., the default terms to run consecutively.-
At the hearing of the Appeal the counsel for the Accused-Appellantcontended that, the evidence led at the trial did not support the particularsof the offence described in the indictment, and the charges mentioned inthe indictment under section 20(b) of the Bribery Act were general andambiguous, thus not in compliance with the section 165 of the Code ofCriminal Procedure Act No 15 of 1979. The Counsel for the Accused -Appellant alleged that section 20(b) of the Act on its own makes referenceto seven instances where the conduct amount to offences as spelt out insection 20(a) of the Act, Eventhough the seven instances spelt out insection 20(a) are contained in limbs (i) (ii) (iii) (iv) (v) (vi) and (vii), thecharges in the indictment did not specify the offence committed withreference to the any of the limbs (i) to (vii) of the section 20(a) of the Act.
The charges in the indictment read as follows
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It was stated in the 1st and 2nd counts of the indictment that utheAccused-Appellant “solicited” and “accepted” (a sum of money asmentioned in the charges) “to procure a benefit from the Government”.
The Section 20{a) limb(vi) states as follows:
“A person who offers any gratification to any person as an inducementor a reward for “his procuring, or furthering the security of, any grant, leaseor other benbefit from the Government, for the first mentioned person or forany other person.”
In the case of Gunasekera vs. Queen(1) H. N. G. Fernando C. J.observed that “section 20 of the Bribery Act is designed to punish thosewho use the advantage of personal family position for the actual or pretendedpurpose of influencing the Commission by “officials” of offences underother sections of the Act, it is obvious that if ordinary citizens are deterredfrom using their position in that way, there is likelihood that ‘officials’ canbe bribed. Again, although it may be very difficult to prove a direct act ofbribery by or to an ‘offcial’, it may be well easy to prove the taking of agratification by a person who is only an actual or pretended intermediary.
I am satisfied that the Legislature intended as far as possible to prevent orpunish even ordinary citizen who accept gratifications as inducements toinfluence public officials with a view to acting or not acting in a particularway in the discharge of the official functions. Common sense thereforerequires that in paragrah (vi) of section 20 the expression ‘grant orbenefit’ must be widely construed. It was held that “ the operative wordin paragraph (vi) is the word 'benefit’ and that its ordinary wide meaning isnot narrowed down by its association with the words/grant’ or ‘lease’which precede it.”
In the case of Perera vs. Hon. Attorney-General{2)
It was held “Section 20 of the Bribery Act is not restricted toand does not refer to the offering or taking of gratification to
CA Wijeratne Bandara vs. Director General of Prevention of Bribery and 247
Corruption Jagath (Balapatabendi, J.)
or by public officer. Any person who solicits or acceptsgratification as an inducement for procuring, or furtheringthe securing of any grant, lease or other benefit from theGovernment,is guilty of Bribery.
For the reasons aforesaid, it is very clear the two charges in the.indictment have specified the purpose of soliciting and accepting the money,thus contain all necessary particulars sufficient enough to give theAccused-Appellant a notice of the nature of the offence charged, also thecharges were incompliance with the section 165 of the Code of CriminalProcedure Act. Hence, the point raised by the Counsel for the Accused-Appellant is not tenable in law.
The facts in brief are as follows : On the 30th May 1991 one Dayapalahad been arrested by Ratnapura Police for investigation on a charge ofattemped murder of one Jayantha Watowita and for being involved in JVPactivities. Dayapala’s wife Lalitha Padmini (prosecution witness No. 1)had testified that the Accused-Appellant (the Chairman of GramodayaMandalaya in the area) had visited her and her uncle Dingirimahatmaya(procecution witness No. 3) several times during the period between 29thMay to 15th July 1991 and informed them if a payment of Rs. 3500 ismade to a police officer named one Wijeratne they could get Dayapalareleased from Police Custody. Both witnesses No. 1 and No. 3 have testifiedthat the solicitation of Rs. 3500 was made by the Accused-Appellant atDingirimahatmaya’s residence (at the Residence of witness No. 3).Eventually during the said period a sum of Rs. 3000 had been given to theAccused-Appellant by the Witness No. 3 (Dingirimahatmaya) in thepresence of the witness No. 1( Lalitha Padmini) at the residence ofDingirimahatmaya.
Dayapala had been given a suspended jail term for the attemped murdercase, and was sent to Boossa Detention camp for his involvement in J. V.P.activities. Thereafter, in August/September 1992 Dayapala was releasedfrom Boossa Detention Camp. The complaint was made by Lalitha Padmini(wife of Dayapala) in October 1992 against the Accused-appellant in theBribery Commission.
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At the trial the Accused-Appellant had made a dock-statement denyingthe allegation, and had stated that Lalitha Padmini thinks that Dayapalawas arrested on the information given by him. (The Accused-Appellant).
The evidence led at the trial was very clear that the solicitation ofRs. 3500 had been made by the Accused-Appellant from both witnessesnamely Lalitha Padmini (wife of Dayapala) and her uncle Dingirimahattaya,a sum of Rs. 3000 was given to the Accused-Appellant by Dingirimahattayain the presence of Lalitha Padmini at Dingirimahattaya’s residence.
On a perusal of the Judgement it is clear that the learned High CourtJudge had correctly considered with reasons the two infirmities in theevidence of Lalitha Padmini alleged by the Counsel for the Accused-Appellant eventhough it was immaterial, and the findings of the learnedHigh court Judge had been based on correct evaluation of the evidence ledat the trial and on corroborated testimony of Lalitha Padmini.Hence, I donot see any irregularity in the Judgement of the learned High Court Judge,as alleged by the counsel for the Accused-Appellant.
Thus, we affirm the conviction and the sentences imposed, anddismiss the appeal.
Judge of the Court of Appeal.
SISIRA DE ABREW, J. — I agree.
Appeal dismissed.