Present

Where a nominated member of an Urban District Council as the paid manager of a firm, which tendered into a contract with the council and took no part in negotiating the contract,-

Held, that the member cannot be said to be concerned or interested in the contract within the meaning of section 237 of the Local Government Ordinance.

from an acquittal by the Police Magistrate of Hatton.

C. V. Ranawake (with him Kariapper), for appellant.

H. V. Perera (with him D. W. Fernando), for respondent.

January 29, 1934. POYSER J.-

The respondent, a nominated member of the Hatton-Dikoya Urban District Council, was charged under section 237 of the Local Government Ordinance, No. 11 of 1920, with being concerned or interested in certain contracts with the said Council, and was acquitted.

The complainant, having obtained the necessary sanction under section 336 of the Criminal Procedure Code, appeals against this acquittal.

The accused is the son-in-law of one Jainul Abdeen, the owner of a business known as K. Jainul Abdeen Saibo and Company. He is the manager of this business and holds, together with another person, a general power of attorney from his father-in-law to manage the business, whether the owner is absent or not.

Jainul Abdeen was the sole owner of the business up to December 19, 1932, on which date he admitted the accused and other persons into partnership.

On December 23, 1932, the accused was nominated to the Council; he was in India on this date and returned to Ceylon on December 30.

On January 23, 1933, the partnership was dissolved and Jaimal Abdeen became once again the sole owner of the firm, and the accused became once again the manager of the firm on a salary of Rs. 150 per month.

The partnership was admittedly dissolved on account of the accused's nomination to the Urban District Council, as Jainul Abdeen had during 1932 supplied goods to the Council and both he and the accused realized that, if the latter was a partner in the firm, they could no longer enter into contracts with the Council.

There were two charges against the accused. The first was in regard to the tendering for and the obtaining of a meat stall in the Council's Market. The Magistrate acquitted the accused on this charge on the grounds that the provisions of section 229 of the Local Government Ordinance had not been complied with as the prosecution was instituted more than three months after the commission of the offence.

I think the Magistrate was correct in coming to this conclusion. It is however unnecessary to consider the evidence in regard to this charge in detail, as counsel for the appellant conceded that the principal question arising on this appeal could be more suitably considered in connection with the second charge.

The second charge against the accused was " that he did tender for and enter into a contract in March, 1933, with the said Council for the supply of cement for which he was paid Rs. 600."

The facts in regard to this charge are as follows: -In February, 1933, the Council called for tenders for fifty barrels of cement. The lowest tender was sent in by the firm of K. Jainul Abdeen Saibo and Company, and they were awarded the contract and have been paid a sum of Rs. 600 for the cement they supplied.

On these facts the Magistrate held that this charge could not be maintained. He points out that the accused was only a paid manager of the firm at the time the contract was entered into, and that he did not appear to have had any share in negotiating the contract, that the proprietor of the firm made a quotation for the supply of the cement and the Chairman of the Council accepted it. He also held that the cancellation of the accused's partnership had no ulterior motive behind it, but was genuinely intended to rectify an irregularity.