IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA ——————————————————————————————

In the matter of an Appeal in terms of Article 128 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Kapila Nishshanka Kumarage No. 102/03, Gnananlankara Mawatha, Ratnapura.

Accused - Appellant -Appellant SC Appeal No. 51/18 High Court Ratnapura Appeal No. HCR/APL 42/14 Vs.

Magistrate’s Court Ratnapura Case No. 68675

1. Officer-in-Charge, Special Crimes Investigation Bureau Police Station, Ratnapura.

Complainant - Respondent - Respondent

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

Respondent - Respondent Before: Priyantha Jayawardena, PC, J.

L.T.B. Dehideniya, J.

Yasantha Kodagoda, PC, J.

Appearance: Chathura Galhena for the Accused - Appellant -

Appellant.

Ganga Wakishta Arachchi, Senior State Counsel with Ruchindra Fernando, State Counsel for the Respondent - Respondent.

Argued on: 4th August, 2020 Written Submissions: Written submissions for the Accused -

Appellant - Appellant filed on 21st September 2018 and 7th December 2020.

Written submissions for the Complainant -

Respondent - Respondent tendered on 4th December

2020.

Judgment delivered on: 4th May, 2021 Yasantha Kodagoda, PC, J.

Background On 18th July 2008, the Officer-in-Charge of the Special Crimes Investigation Bureau of the Ratnapura Police Station (Complainant - Respondent - Respondent) instituted criminal proceedings against the Accused - Appellant - Appellant (hereinafter referred to as the “Appellant”) in the Magistrate’s Court of Ratnapura by filing a Complaint (commonly referred to as a ‘Plaint’) in terms of section 136(1)(b) of the Code of Criminal Procedure Act. (Number 68675 had been assinged to this case.) The charge sheet attached to the Complaint contained three charges, namely ‘Cheating’, ‘Criminal Breach of Trust’ and ‘Criminal Misappropriation of Property’. The Appellant pleaded ‘not guilty’ and a trial was held. Following the conclusion of the trial, on 29th August 2014 the learned Magistrate found the Appellant ‘guilty’ and accordingly he was convicted of all three charges. On 12th December 2014, the Appellant was sentenced to a term of 1-year rigorous imprisonment and a fine of Rs. 1,500/=, per each charge. The Appellant appealed against the said conviction and sentence to the High Court of the Sabaragamuwa Province, holden in Ratnapura. (No. HCR/APL 42/14 had been assigned to that Appeal.) Following the hearing of the Appeal, the High Court acquitted the Appellant with regard to the second and third charges, and hence quashed the corresponding sentences. The conviction and sentence pertaining to the first charge of ‘cheating’, was affirmed. Subject thereto, the Appeal was dismissed.

This Appeal is against the said judgment of the High Court of the Provinces.

Following a consideration of an Application seeking Leave to Appeal against the afore-stated judgment of the High Court, this Court on 16th March 2018 granted Leave to Appeal, on the following questions of law:

(i) “Did the Provincial High Court fail to analyze the lack of mens rea on the part of the Petitioner to constitute an act of cheating?”

(ii) “Did the Provincial High Court fail to analyze that the virtual complainant had not been deceived by the act of the Petitioner, which is a necessary ingredient to constitute a charge of cheating?”

[The reference to the ‘Petitioner’ in these questions, is a reference to the present ‘Appellant’.]

Offence According to the charge sheet, the offence in respect of which the Appellant stands convicted and sentenced, is as follows:

“That on or about the 25th September 2007, by asserting that money was required for a business purpose, having obtained Rs. 8,00,000/= from Kalawitigoda Pathirannalage Chandralatha, residing at No. 74, Polhengoda, Ratnapura, and in respect thereof having got her to repose confidence by tendering to her a cheque drawn for Rs. 8,00,000/= bearing No. 908494 drawn against Account No. 013001001397 maintained a