IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA An application made under and in terms of Section 331 of the Criminal Procedure Code of No. 15 of 1979.

The Democratic Socialist Republic of Sri Lanka Complainant Court of Appeal Case No:

CA-HCC 11/14 HC of Ampara Case No:

HC1472/2011 Vs.

Meragal Pedige Senarathne Accused AND NOW BETWEEN Meragal Pedige Senarathne Accused-Appellant Vs.

Hon. Attorney General.

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

B. Sasi Mahendran, J.

Counsel: Saliya Pieris, PC with Eshan De Zilva for the Accused-Appellant Dilan Rathnayake, SDSG for the Respondent Written 10.12.2018(by the Accused-Appellant)

Submissions: 11.01.2021(by the Respondent)

On Argued On : 17.05.2023 Decided On : 24.07.2023 Sasi Mahendran, J.

The Accused Appellant (hereinafter referred to as ‘the Accused’) was indicted in the High Court of Ampara on the following count;

That on or between the 1^st of August 2005 and the 5^th of September 2005, by producing, fraudulently or dishonestly, knowingly or has a reason to believe to be a forged document which is bearing No. 1012 to one Giripura Senerath Palihawadanage, Upali Abahayathilake who was the manager in the Peoples Bank in Ampara, thus committing an offence punishable under the terms of Section 459 of the Penal Code.

Prosecution led the witnesses of PW1, PW2, PW5, PW6, PW7, PW9, PW10 and PW11 and closed its case wherein marked productions from P1 to P13. The Accused also gave evidence. Both the Prosecution and the Defense made submissions. The learned Trial Judge by his judgement dated 18^th of February 2014 convicted the Accused on the indictment and sentenced the Accused to a term of 5 years RI and a fine of Rs.25000/-.

Being aggrieved by the said conviction and sentence the Accused had preferred an appeal to this court and submitted the following grounds of appeal.

a. That the learned trial judge has failed to determine that the PW3 namely Puwapilleyi Thawamani is an instrumental witness in proving the innocence of the Appellants;

b. That the learned trial judge has not considered the version of the defense at all times;

c. In any event, the sentence imposed on the appellant is excessive.

Before we analyse the evidence led at the trial it is pertinent to refer to the relevant section which describes the Using as genuine a forged document.

Section 459 of the Penal Code:

Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document shall be punished in the same manner as if he had forged such document.

Withers J in the case of The Queen v Kapurala 2 NLR 330, has described what are the elements to be proved in such a situation:

" A person is said to make a false document " who dishonestly or fraudulently makes, signs, seals, or executes " a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed, or executed by or by the authority of a person by whom or by whose " authority he knows that it was not made, signed, sealed, "or executed, or at a time at which he knows that it was "not made, signed, sealed, or executed."

(emphasis added)

With the above proposition in our mind, we have to consider whether the Prosecution had proved the case beyond reasonable doubt.

The facts and circumstances giving rise to this appeal are that:

According to PW1 Upali Abahayathilake the Manager of Peoples Bank Ampara, stated that the Accused had obtained a loan after submitting the allegedly forged document, evidence document marked as P1 according to the prosecution.

According to the evidence of PW1, he explained that this document Marked as P1 Financial Regulations No. 238(5) acts as a guarantee that monthly installment will be bank by the Accounts Department.

P1, the form consists of two copies which have to be duly filled by the relevant officials after plac