IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

In the matter of an appeal in terms of Article 138 (1) of the Constitution of the Democratic Socialist Republic of Sri Lanka read with Section 331 of the Criminal Procedure Code and Section 19 (B) of the High Courts of the Provinces (Special Provision) Act No.

19 of 1990.

Court of Appeal Case No:

Hon. Attorney General CA / HCC / 229 / 2014 Attorney General’s Department High Court of Gampaha Case No:

Colombo 12.

HC 121 / 2006 Complainant – Respondents Vs.

Ajith Nishantha Accused AND NOW BETWEEN Ajith Nishantha Accused – Appellant Vs.

Hon. Attorney General Attorney General’s Department Colombo 12. Respondent Before: Menaka Wijesundera J.

B. Sasi Mahendran J.

Counsel: Dr. Jayatissa de Costa, PC with Chamila Ekanayaka and D.D.P Dasanayake for the Accused – Appellant.

Riyaz Bary, D.S.G for the State.

Argued on: 14.03.2023 Decided on: 16.05.2023 MENAKA WIJESUNDERA J.

The instant appeal has been filed to set aside the judgment dated 17.12.2014 of the High Court of Gampaha.

The appellant in the instant had been indicted in the High Court for the theft of a case record under the provisions of the Public Property act, the appellant had been serving in the Attangalla Magistrates Court when he is alleged to have committed the instant offence.

The main grounds of appeal had been that the learned trial judge had not, 1) Considered the evidence led by the prosecution, 2) The trial judge had failed to consider the dock statement by the appellant, 3) Not givben reasons for her findings.

The evidence of the prosecution is that the case records are handled by three clerks and they are the, 1) the subject clerk.

2) the day book clerk 3) the record keeper.

The case records are not handled by the peons in the Court house other than for the reason of taking the case records from one branch to another. But for that purpose, it had to be entered in to a delivery book of the respective clerk. The case record in question bears the no 26213. The said case record had been filed on 25.7.2000. The case record had been last called on 24.10.200 and the Magistrate had issued an open warrant against the accused. The case record had been misplaced and it had not been called thereafter and subsequently the case record had been found on top of a cupboard in the office, which had been allocated to keep letters in the office.

In the evidence of the registrar, it had been brought to the notice of him of a possible contradiction where he had said that the alleged case record was found from the drawer of Rosy Ekanayake who was a clerk in the Court house which he had denied. It was also suggested to him that Menke Ratnayake was responsible for the misplacement of the record.

The clerk who maintains the day book Ashoka Jayasekera had given evidence and according to her evidence she had been told by another colleague that he had seen the appellant talking to some outsiders and thereafter opening a drawer and going through some files and thereafter had been seen tearing off a page from the delivery book which is used to send the records relating to the day on which the accused had been warranted. When she had confronted the appellant, he had admitted that he did so. According to the day book clerk the alleged case record had been called in open Court on 24^th of October and an open warrant had been issued to the accused.

Thereafter the record had gone missing.

The explanation given by the appellant is that the case record was found from the drawer of Rosy Ekanayake who is the subject clerk and the appellant had admitted of tearing off a page in the delivery book of the day book clerk and rewriting on the same. The missing page according to the record keeper is the page pertaining to the impugned date and the appellant had admitted that particular page had been torn off after it had been recovered from the drawer of the subject clerk to whose custody the record had been sent by the record keeper. The said page had been page