KUMARAGE

Vs.

OFFICER-IN-CHARGE, SPECIAL CRIMES INVESTIGATION BUREAU,  RATNAPURA AND ANOTHER

SUPREME COURT
JAYAWARDENA, J.
DEHIDENIYA, J.
KODAGODA, J.
SC/APPEAL/51/2018
HC/APPEAL/HCR/APL/42/2014
MC RATNAPURA 68675
AUGUST 4, 2020

Criminal law-Penal Code, sections 398, 400, 401, 402, 403-Code of Criminal Procedure Act, No. 15 of 1979, sections 136, 165-Penal Code of India, section 415-Evidence Ordinance, sections 7, 8, 14, 15, 54-Cheating-Deception-Dishonesty-Causal connection between deception and parting with the property-Admissibility of evidence of bad character-Application of foreign judgments in Sri Lanka

The accused-appellant was charged in the Magistrate's Court with cheating, criminal breach of trust and criminal misappropriation on a dishonoured cheque issued by him to the virtual complainant. The cheque was given voluntarily as assurance for due payment of a loan obtained previously. After trial, the appellant was convicted of all three offences and sentenced to a term of one year rigorous imprisonment and a fine of Rs. 1,500 for each offence. On appeal, the High Court acquitted him of the second and third charges but affirmed the conviction and sentence of cheating. The appellant appealed to the Supreme Court. The Supreme Court granted leave to appeal on two questions of law: whether the High Court failed to consider (a) the lack of mens rea on the part of the appellant and (b) that the virtual complainant had not been deceived by the act of the appellant, both of which are necessary ingredients in the offence of cheating.

Held:

1. The offence of cheating may be committed in multiple ways. The facts of the case relate to the commission of the offence of cheating by inducing a person to deliver property by means

of deception. Deception is the core ingredient in the offence of cheating; dishonesty, which constitutes the mens rea of the offence of cheating, is embedded in the ingredient of deception.

2. The offence of cheating would not be constituted if the victim parted with the property due to a reason independent of the deceptive assertion made by the offender.

3. The cheque was handed over to the virtual complainant sometime after the virtual complainant decided to tend money to the appellant and the former knew that the appellant did not have money in the account. The prosecution has not proved that the impugned deceptive act of the appellant preceded and induced the virtual complainant to lend him money.

4. The prosecution has failed in establishing that the appellant committed the offence of cheating in the manner in which the prosecution has alleged in the charge. The evidence in the case is not compatible with the charge.

Held further:

5. Section 54 of the Evidence Ordinance lays down the general rule that in criminal proceedings, the fact that the accused is of bad character is irrelevant. Evidence of bad character may be relevant: (a) where the character of the accused is a fact in issue; (b) where the accused acting in terms of section 52 of the Evidence Ordinance has presented to court evidence of good character; (c) where the prosecution seeks to present evidence in terms of sections 14 or 15 of the Evidence Ordinance for the purpose of establishing the existence of a particular state of mind of the accused at the time of committing the offence which would constitute the mens rea of the offence, or for the purpose of establishing a state of body or bodily feeling; or (d) to establish the cause of and the motive for the commission of the offence under sections 7 and 8(1) of the Evidence Ordinance. The circumstances of the instant case do not come within any of the four situations described above and, therefore, evidence of bad character is irrelevant and inadmissible.

6. The doctrine of judicial precedent does not require a court of a sovereign and independent country to be bound by the judgment of

a foreign country even if the foreign judgment ha