IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal in terms of section 331 (1) of the Code of Criminal Procedure Act No. 15 of 1979.

Court of Appeal No: The Democratic Socialist Republic of Sri CA/HCC/0018/2021 Lanka COMPLAINANT Vs.

High Court of Colombo Ratnam Nadarajah Case No: HC/4638/09 ACCUSED AND NOW BETWEEN Ratnam Nadarajah ACCUSED-APPELLANT Vs.

The Hon. Attorney General, Attorney General’s Department, Colombo 12.

COMPLAINANT-RESPONDENT Before : Sampath B. Abayakoon, J.

: P. Kumararatnam, J.

Counsel : Anil Silva, P.C. with Amaan Bandara instructed by M/S Tharmarajah Tharmaja for the Accused-

Appellant : Udara Karunatilake, S.S.C. for the Respondent Argued on : 29-02-2024 Written Submissions : 19-07-2022 (By the Accused-Appellant)

: 06-06-2022 (By the Complainant-Respondent)

Decided on : 10-06-2024 Sampath B. Abayakoon, J.

This is an appeal preferred by the accused-appellant (hereinafter referred to as the appellant) on the basis of being aggrieved of his conviction and the sentence dated 18-02-2021 by the learned High Court Judge of Colombo.

The appellant has been indicted before the High Court of Colombo for deceiving one Grace Nirmala Balachandran, with the promise of providing a house for her and obtaining Rs. 2,939,773.78/- and thereby committing the offence of cheating punishable in terms of section 403 of the Penal Code. The offence is said to have been committed on or about 01-04-2002.

When the indictment was initially read to the appellant, he has pleaded not guilty to the charge, and while the evidence of the earlier mentioned Nirmala Balachandaran (PW-01) was in progress, the prosecution has amended the sum mentioned in the indictment to read as Rs. 1,439,773.78/-.

The learned High Court Judge of Colombo, after finding the appellant guilty as charged and after considering the aggravating and mitigatory circumstances, including the time period it has taken for the case to come to a conclusion and the age of the appellant, has decided that the appellant should not be punished with incarceration.

Accordingly, he has been sentenced to 2 years rigorous imprisonment suspended for a period of 10 years. In addition, he has been imposed a fine of Rs. 10,000/-

with a default sentence of 6 months simple imprisonment.

Having considered the sum cheated and the fact that it has taken place in the year 2002, it has been decided to award Rs. 4,000,000/- as compensation to PW-01. It has been ordered that if the appellant fails to pay the said sum, it shall be recovered as a fine, and in default, he shall be sentenced to 2 years rigorous imprisonment.

The Facts in Brief PW-01 Nirmala Balachandran has worked as a Secretary at University of Jaffna and was to retire in October 2002. Since she wanted to settle in Colombo after her retirement, she was on the lookout for a house in Colombo area. The appellant was a person well known to her and was a Bank Manager. She has come to know from the appellant that he is also looking for a land in Colombo and had been informed of an available land at Perera Lane, Dehiwala. It was a land of 10.08 perches and she had come to know that the appellant is planning to purchase the land together with a friend of him called Kaali. It has been informed to her that they are planning to build a twin house on the land because of the minimum land requirement restrictions when building a house in the Municipal Council area.

PW-01 has agreed to contribute to the building of the house and the appellant has agreed to transfer the ground floor of the house to her and for him to occupy the upper floor of one of the twin houses that were to be built on the land. The agreement between the PW-01, the appellant and the earlier mentioned Kaali had been for the said Kaali to own and occupy the other twin house that was to be built on the land. Accordingly, the appellant has agreed to give the title to the ground floor of the house after it was built.

The land has been purchased in the