IDDAGODA

Vs.

MAGISTRATE OF COLOMBO AND ANOTHER

COURT OF APPEAL
OBEYESEKERE, J. (P/CA)
CA/WRIT/211/2020
JUNE 7, 2021

Writs of certiorari and prohibition-Code of Criminal Procedure Act, No. 15 of 1979, sections 136(1)(a), 139-Private plaint-Unfair competition Undisclosed information-Sufficient grounds to issue summons- Intellectual Property Act, No. 36 of 2003, section 160(8)(a)

The 2nd respondent company filed an action in the Commercial High Court against the petitioner, a former employee, alleging that the petitioner was engaging in acts of unfair competition by using confidential information/ undisclosed information/commercially sensitive business information of the 2nd respondent in his new employment, contrary to a confidentiality obligation. The case was settled by the petitioner giving an undertaking that he would not make use of and/or disclose directly and/or indirectly to any party any undisclosed information of the 2nd respondent for a period of one year. After the period of the petitioner's undertaking had expired, the 2nd respondent filed an action against the petitioner in the Magistrate's Court in terms of section 136{1)(a) of the Code of Criminal Procedure Act, No. 15 of 1979, as amended, alleging that the petitioner had willfully disclosed the 2nd respondent's undisclosed information to

his new employer, an offence punishable under section 160(8)(a) of the Intellectual Property Act, No. 36 of 2003. The application to have summons issued on the petitioner was supported before the Magistrate and the Magistrate made order directing that summons be served. The petitioner sought a writ of certiorari to quash the order of the Magistrate to commence proceedings and/or issue summons on him and a writ of prohibition preventing the Magistrate from taking any further steps in the case.

Held:

1. The Magistrate has not considered the ingredients of the offence the petitioner was charged with nor the material put forward by the 2nd respondent by way of the affidavit of its Managing Director in order to ascertain if the averments in the affidavit support the charge. The Magistrate has therefore clearly acted in breach of the obligation cast upon him by section 139 of the Code of Criminal Procedure Act to issue summons only where he is of the opinion that there is sufficient grounds to proceed against the petitioner in respect of the offence specified in the charge sheet.

2. While considerations relating to maintaining the requisite balance between preventing unfair competition and restraint of trade would normally be taken into account at the end of the trial, given the complex nature of the offence and the intricacies thereof and especially the fact that the petitioner is a former employee of the 2nd respondent who is now said to be engaging in the same business as that of the 2nd respondent, there must be due consideration of these issues even at the stage the Magistrate is called upon to issue summons.

3. A Magistrate who is called upon to decide if sufficient grounds exist to issue summons on a private plaint must act with circumspection for the reason that such a complaint is not preceded by an investigation by an independent law enforcement agency and can arise from private animosity or may have been filed for a collateral purpose.

Cases referred to:

1. Malinie Guneratne v. Abeysinghe and another [1994] 3 Sri LR 196

2. Sundra Rajoo Nadarajah v. Menteri Luar Negeri, Malaysia and others (Civil Appeal No. 01 (F)-38-12-2020W - 9th June 2021)

3. Peter Leo Fernando v. Attorney General [1985] 2 Sri LR 341 at 349

4. Derek Kelly and another v. Yasasiri Kasthuriarachchi (CA/PHC/APPEAL/57/2018, CA Minutes of 07.09 2012)

cur. adv. vult.

APPLICATION for Writs of Certiorari and Prohibition.

Ramesh De Silva, P.C., with Shanaka Cooray for the Petitioner.

Shaheeda Barrie, D.S.G., for the 1st Respondent.

Nishan Premathiratne with Krishan Fernandopulle for the 2nd Respondent.