IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the case of an Appeal from the Judgement pronounced on 2017.08.31 by the High Court of the Western Province Holden in Gampaha in High Court Appeal No.64/16 in terms of section 9(a) of the High Court of the Provinces (Special Provisions) Act, No.19 of 1990 read with Article 154P of the Constitution and the Supreme Court Rules 1990 Officer In Charge, Special Crime Investigating Branch, Gampaha Complainant Vs.

Nishashanka Arachchige Mahesh Chaminda Priyantha Kumara, No.140/C, Megoda Thammita, Makewita.

Accused AND BETWEEN Nishashanka Arachchige Mahesh Chaminda Priyantha Kumara, No.140/C, Megoda Thammita, Makewita.

Accused- Appellant Vs.

Officer In Charge, Special Crime Investigating Branch, Gampaha Complainant- Respondent Hon. Attorney General, Attorney General’s Department, Colombo 12. Respondent AND NOW BETWEEN Nishashanka Arachchige Mahesh Chaminda Priyantha Kumara, No.140/C, Megoda Thammita, Makewita.

Accused- Appellant-Appellant Vs.

Officer In Charge, Special Crime Investigating Branch, Gampaha Complainant- Respondent- Respondent Hon. Attorney General, Attorney General’s Department, Colombo 12.

Respondent- Respondent BEFORE: P. PADMAN SURASENA, J K. KUMUDINI WICKREMASINGHE, J MAHINDA SAMAYAWARDHENA, J COUNSEL: R .A. Priyantha Jayawardana for the Accused-

Appellant- Appellant V. Hettige, SDSG for the Respondent WRITTEN SUBMISSIONS:Written submissions for the Respondent Respondent on 21.09.2021 ARGUED ON: 06.06.2022 DECIDED ON: 05.06.2024 K. KUMUDINI WICKREMASINGHE, J The application for special leave to appeal was preferred by the Accused Appellant Appellant (hereinafter referred to as the Appellant) against the judgment of the High Court dated 31.08.2017 affirming the judgment of the Learned Magistrate subject to the variations. Aggrieved by which the Accused Appellant Appellant appealed to the Supreme Court.

Accordingly, this court by order dated 25.07.2018 granted special leave to appeal on the following question of law:

1.Did the Learned High Court Judge err by failing to consider the basic elements to prove the charges of section 386 and 389 of the Penal Code.

The Accused Nishanka Arachchige Mahesh Chaminda Priyantha Kumara was charged in the Magistrate Court of Gampaha under sections 403, 386 and 389 of the Penal Code. The Accused once the charges were read over and explained to him, pleaded not guilty to all the charges. The trial commenced on 24.07.2014. The prosecution called 03 witnesses and closed its case marking a document P.01 as evidence. When defense was called, 03 witnesses gave evidence on behalf of the Accused and marked a document V.01. At the conclusion of the trial the Learned Magistrate convicted the Accused for all three charges. The Accused was sentenced to 6 months simple imprisonment and ordered Rs.100,000/- as compensation.

The facts of the case briefly are as follows:

The Accused Appellant Appellant namely Nishanka Arachchige Mahesh Chaminda Priyantha Kumara had been serving in the Sri Lanka Army with the Husband of the Complainant Jayasuriya Kuranage Priyanka Jayasuriya (PW1) both of them were members of the Sri Lanka Army Volleyball Team. They had been acquainted with the Husband of the Complainant for approximately 8 years. As per the Testimony of PW1, the Accused Appellant Appellant had needed to show “proof of funds” in order to send a relative of the Appellant abroad for which he needed to show he had Rs 2,000,000.00/- in his bank account and sought the assistance of the Complainant’s Husband in order to furnish the same. On 10.09.2012 the Complainant (PW1) had handed over the said amount of Rs 2,000,000.00/- to the Accused Appellant Appellant at the Sampath Bank branch at Gampaha and the Accused Appellant Appellant had signed a document (P1) which stipulated that he had promised and agreed to repay the Complainant by 10.10.2012 in tranches. The Complainant had obtained this money from her husband who had received the same as a pe