IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Appeal made under Section 331 of the Code of Criminal Procedure Act No.15 of 1979 CA 300/2016 HC/ COLOMBO/ 6852/2013 Hettinayake Mudiyanselage Lilanthi Dinesha Maliyedda ACCUSED-APPELLANT vs.

The Hon. Attorney General Attorney General’s Department Colombo-12 COMPLAINANT-RESPONDENT BEFORE : Devika Abeyratne J P. Kumararatnam J COUNSEL : Mr. Ranil Samarasoorya AAL with Amila Nawalage AAL for the Appellant.

Mr.Sudharsana De Silva DSG for the Respondent.

ARGUED ON : 02/02/2021

18/03/2021 29/03/2021 DECIDED ON : 03/05/2021 *******************

JUDGMENT

P. Kumararatnam J The above-named Accused-Appellant (hereinafter referred to as the Appellant) was indicted by the Attorney General with six charges in the High Court of Colombo. The first charge was Cheating Mahesh Jayantha Dias to give Rs.1800000/= to the Appellant to secure foreign employment. The second and third charges are for Misappropriation and Criminal Breach of Trust of the same amount. The fourth charge was Cheating Chandrika Sonali Mendis to give Rs.2000000/= to the Appellant to secure foreign employment. The fifth and sixth charges are for Misappropriation and Criminal Breach of Trust of the same amount.

After the trial the Learned High Court Judge has found the Appellant guilty for first, second, fourth and fifth charges and ordered to pay a fine of Rs.5000/= for each charge with a default sentence of three months simple imprisonment. For each count 06 months RI suspended for 10 years was imposed. Further the Appellant was ordered to pay Rs.2000000/= as compensation to PW01 with a default sentence of 03 months simple imprisonment and Rs. 1500000/= compensation to PW02 with a default sentence of 03 months simple imprisonment.

Being aggrieved by the aforesaid conviction and sentence the Appellant preferred this appeal to this court.

The Learned Counsel for the Appellant informed this court that the Appellant is on bail and has given consent to argue this matter in her absence due to the Covid 19 pandemic. With the permission of this Court the Appellant was present during the final day of the argument.

At the very out set the Learned Deputy Solicitor General informed this court that he is not contesting the conviction and sentence imposed on second and fifth charges by the trial court. Hence the counsel for the Appellant restricted his argument on the second ground of Appeal.

In the second ground of Appeal the Appellant contends that on a proper correct and impartial reading of the evidence in this case has the prosecution fallen short of establishing the charges against the accused in all their ingredients and in total.

Back ground of the case In this case PW01 and PW2 are wife and husband. PW01 is a beautician by profession and her husband PW02 was running an advertising firm during the period relevant to this case. As the couple were not successful in their respective businesses, both had decided to migrate to England for greener pasture. At this time the Appellant being a relative of PW01 had promised employment in England and PW01 had paid Rs.2000000/= to the Appellant on 13/03/2009 in the presence of PW04 who is a Justice of Peace (JP). The Appellant acknowledged the said sum by placing her signature to an affidavit attested by the said JP which had been marked as P1 in the trial. The Appellant had promised to secure a job in England in two months’ time.

Likewise, PW02 had paid the Appellant Rs.1800000/= on 04/04/2009 in the presence of the same JP. This occasion too the Appellant had placed her signature to an affidavit and acknowledged the receipt of the said money. The said affidavit was marked as P2 in the trial. After the payment the couple had handed over their passports and waited for the travel arrangement by the Appellant. After some time as the Appellant went incommunicado, PW01 and PW02 had lodged their complaints to Colombo Crime Division on 24/09/2009 as directed by their lo