IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal to the Supreme Court from a Judgment of the High Court in an Appeal to the High Court against a Judgment of the Magistrates Court.

Bopitiya Vidanagamage Sarath alias Sarath Michal Sander, No. 9/4, De Saram Road, Mount Lavinia.

Accused-Appellant-Petitioner SC. SPL. LA. No. 05/2020 HC Colombo Case No. HCMCA 12/2016 MC Colombo Fort Case No.19911/14 Vs.

1. Hon. Attorney-General, Attorney-General's Department, Colombo 12.

Respondent – Respondent

2. Officer-in-Charge, Colombo Fraud Investigation Bureau, Wellawatte, Colombo-06.

Complainant – Respondent - Respondent Before: Yasantha Kodagoda, PC, J.

A.H.M.D. Nawaz, J. &

Janak De Silva, J Counsel: Dulinda Weerasooriya, PC with Pasan Malinda for the Accused-Appellant-Petitioner.

Varunika Hettige, Senior Deputy Solicitor General for the Respondents.

Argued, decided and Judgment pronounced on 27th November 2023.

Yasantha Kodagoda, PC, J.

In this matter, having heard learned President’s Counsel for the Petitioner in support of the Application seeking the grant of Special Leave to Appeal and learned Senior Deputy Solicitor General for the Respondents, this Court granted Special Leave to Appeal on the following questions of law:

1. Was the procedure followed by the learned Judge of the High Court in determining the sentence to be imposed on the Accused – Appellant - Petitioner, lawful?

2. Were the enhanced penal sanctions imposed by the High Court on the Accused –

Appellant - Petitioner lawful?

Following the grant of Special Leave to Appeal, acting in terms of the proviso to Rule 16 of the Supreme Court Rules and having obtained the consent of both parties, the hearing of the substantive Appeal took place forthwith.

Background On 14th October 2014, the Complainant (the present ‘Complainant – Respondent - Respondent’) instituted criminal proceedings against the Appellant in the Magistrates Court of Colombo Fort, for having allegedly committed the following offences:

(1) That on or about 29th October 2013 in Colombo committed the offence of Cheating, an offence punishable in terms of section 403 of the Penal Code, by having deceived Liyanage Sriyani Anoma and thereby got her to handover a sum of Rs. 1,862,490.00 on the pretext that a jeep would be imported from a foreign country and it would be given to her, and thereafter by not having delivered that jeep to her.

(2) That on or about the same day and place, having obtained a sum of Rs. 1,862,490.00 from Liyanage Sriyani Anoma on the pretext that a jeep will be imported from a foreign country, criminally misappropriated the said sum of money, and thereby committed the offence of Criminal Misappropriation of Property punishable under section 386 of the Penal Code.

Following trial, the learned Magistrate found the Accused (the present ‘Accused – Appellant - Appellant’) ‘guilty’ of having committed the offence of Cheating, and convicted him for having committed the first offence on the charge sheet. He was acquitted of the second count of Criminal Misappropriation of Property. A term of simple imprisonment of 1 year suspended for 5 years and a fine of Rs. 1,500.00 with a default sentence of 1 month imprisonment was imposed on the Accused in respect of the conviction.

Aggrieved by the conviction and the sentence, the convicted Accused appealed to the High Court. Following a hearing of the Appeal, the learned Judge of the High Court affirmed the Judgment of the learned Magistrate. However, he varied the sentence imposed by removing the period of suspension of the term of imprisonment and thereby making the term of imprisonment operative [by converting the suspended (non- custodial) term of imprisonment into a substantive (custodial) term of imprisonment], and by making order that the Accused – Appellant pays the virtual complainant a sum of Rs. 1,862,490.00 as compensation.

At the hearing of the Petition urging the grant of Special Leave to Appeal, it was decided by this Co