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, read with Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Court of Appeal No: Democratic Socialist Republic of Sri Lanka CA/HCC/0024/22 COMPLAINANT Vs.

High Court of Colombo Case No. HC 461/2001 Hemantha Pushpa Kumara alias Kurumbapitiyalage Hemantha Pushpalal ACCUSED AND NOW BETWEEN Hemantha Pushpa Kumara alias Kurumbapitiyalage Hemantha Pushpalal ACCUSED-APPELLANT Vs.

The Attorney General, Attorney General’s Department, Colombo 12 RESPONDENT Before : Sampath B. Abayakoon, J.

: P. Kumararatnam, J.

Counsel : Kasun Liyanage for the Accused Appellant : Anoopa De Silva, DSG for the Respondent Argued on : 02-05-2023 Written Submissions : 22-12-2022 (By the Accused-Appellant)

: 27-04-2023 (By the Respondent)

Decided on : 12-06-2023 Sampath B. Abayakoon, J.

The accused appellant (hereinafter referred to as the appellant) was indicted before the High Court of Colombo on 8 counts of criminal breach of trust and criminal misappropriation for committing offences punishable in terms of sections 389 and 386 of the Penal Code.

Count number 5 and 6 of the indictment had been withdrawn by the prosecution at the trial. After the trial against the appellant, the learned High Court Judge of Colombo by his judgement dated 12th December 2019 found the appellant guilty only for the first count preferred against him. He was acquitted on the 2nd count on the basis that the said count should be a count alternative to the 1st count for which the appellant was found guilty. He was acquitted of 3rd, 4th, 7th and the

8th count on the basis that the prosecution has failed to prove the said counts against him.

Accordingly, by his sentencing order of the even date, the learned High Court Judge, after having considered the mitigatory circumstances pleaded on behalf of the appellant and the other relevant facts and the circumstances, has sentenced the appellant for 30 months rigorous imprisonment for the count he was found guilty, in addition to the fine and the default sentence imposed and the compensation ordered to be paid to Singer Sri Lanka Ltd who was the aggrieved party.

The count no. 1 for which the appellant was found guilty reads as follows. 1. The accused appellant on or about 3rd May 1999 in Colombo committed the offence of criminal breach of trust by using a pay order handed over to him by Singer Sri Lanka Ltd for a sum of Rs. 825,094/= by failing to get the goods as required from Sri Lanka Customs, and instead getting some other goods released contrary to the agreement entered by him with the said Singer Sri Lanka Ltd, and thereby committing an offence punishable in terms of section 389 of the Penal Code.

The facts that led to the conviction of the appellant to the above-mentioned count are briefly as follows.

The appellant functioned as the owner of a clearing agency called Janaranjana Enterprises, in assisting importers to clear goods from Sri Lanka Customs. In his capacity as a clearance agent, it was the appellant who handled the relevant paperwork and paid the relevant Customs levies on behalf of his clients and got the goods imported by them released.

According to the evidence of PW-01, who was the Items Manager of Singer Sri Lanka Ltd during the relevant period, the company has been dealing with the appellant since 1999 for the purposes of getting their goods cleared from the Customs. As of usual practice, when the company was informed of the relevant sum that needs to be paid to the customs in relation to the goods imported by them relating to the 1st count preferred against the appellant, they have obtained the pay order no. 272748 marked P-01 from their bank for a sum of Rs. 825,094/= and handed over to the appellant for the relevant purpose. Along with the pay order marked P-01, the company has handed over another pay order for a sum