IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA Attorney General, Attorney General’s Department, Colombo 12.

PLAINTIFF COURT OF APPEAL CASE Vs.

CASE No. CA 235/2011 Athputharaja Wijayarajan, HIGH COURT COLOMBO No. 21, CASE NO. HC 4574/2009 Maitland Crescent, Colombo 07 ACCUSED AND NOW Athputharaja Wijayarajan, No. 21, Maitland Crescent, Colombo 07 ACCUSED-APPELLANT Vs.

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

PLAINTIFF-RESPONDENT Before: N. Bandula Karunarathna J.

&

R. Gurusinghe J.

Counsel: Faiz Musthapha PC with Neville Abeyratne PC, K. Thilakarathna and Kaushalya Abeyratne Dias for the accused-appellant Sudharshana de Silva DSG for the complainant-Respondent Nalin Dissanayake PC with Vishwa Rajapaksha for the Aggrieved Party Written Submissions: By the accused-appellant on 30.01.2017 By the complainant-Respondent on 23.03.2017 By on behalf of the Aggrieved Party on 16.03.2017 Argued on : 26.07.2021 Decided on : 22.11.2021 N. Bandula Karunarathna J.

The accused-appellant (hereinafter referred to as the appellant) Athputharaja Wijayarajan was indicted before the High Court of Colombo along with two others namely Rupasinghe Arachchige Naveen Aruna Perera and Daluwatta Patabendige Siripala for the offence of cheating punishable in terms of section 403 of the Penal Code. The accused-appellant was the 1^st accused before the High Court, Rupasinghe Arachchige Naveen Aruna Perera was the 2^nd accused and Daluwatta Patabendige Siripala was the 3^rd accused.

They were indicted in the high court of Colombo on 11.12.2008. According to the indictment, the 1^st accused-appellant was indicted on counts 1, 4 and 7.

Count nos. 2, 3, 5, 6, 8 and 9 were preferred against the 2^nd and 3^rd accused persons and both of them were acquitted by the learned High Court Judge after the conclusion of the trial.

At the trial, 6 witnesses gave evidence on behalf of the prosecution namely; Sunil Suriyaarachchi (PW 01), Nimal Kanthi Vithana (PW 03), Noel Dunken Ranasinghe Gunasekara (PW 04), Sarathchandra Kumara Vithana (PW 05), Manager, Commercial Bank, Kotahena (PW

07) and S.I. Piyathilaka from CID (PW 08).

The accused-appellant was convicted of counts number 1,4 and 7 and sentences imposed by the court were as follows:

Sentence for count number 1 - 3 years’ rigorous imprisonment and a fine of Rs 25,000/ in default, 1 year’ simple imprisonment.

Sentence for count number 4 - 3 years’ rigorous imprisonment and a fine of Rs 25,000/ in default, 1 year’ simple imprisonment.

Sentence for count number 7 - 3 years’ rigorous imprisonment and a fine of Rs 25,000/ in default, 1 year’ simple imprisonment.

Being dissatisfied with the said conviction and sentence, the appellant had preferred this appeal to the Court of Appeal seeking to set aside the conviction and sentence imposed upon him.

The charges in the indictment on count Number. 1, 4 and 7 refer to the commission of an offence of cheating punishable in terms of section 403 of the Penal Code. It is the main argument of the accused-appellant that the learned Trial Judge has failed to analyse, assess and evaluate the evidence of the prosecution witnesses and thereby failed to address his mind to the most important main ingredient of the offence of cheating. The relevant facts relating to the proof of deceiving of Sunil Suriyaarchchi (PW 01) by the accused-appellant before the delivery of money to the accused-appellant.

According to the complainant Sunil Suriyaarachchi, he has a vehicle sale centre at Nawala. He imports vehicles from Japan and also buys vehicles from Sri Lanka to sell. Sunil Suriyaarachchi had got to know the 1^st accused-appellant and handed over money on eight occasions to the 1^st accused-appellant to import vehicles. For three years they had been doing business and the 1st accused-appellant had promised to import vehicles from Singapore. Whenever he gave money, the 1^st accused used to hand over a cheque for the same amount to the complainant. In the beginning, the 1^st accuse