SARATH WIMALAWEERA

SARATH WIMALAWEERA
VS.
ATTORNEY GENERAL

COURT OF APPEAL
K.T. CHITRASIRI.J.
MALINIE GUNARATNE .J
CA (PHC) APN 13/2013
HC 3529/2006
November 12, 2014

Penal Code - Section 403 - Offence of cheating - Filing of four separate indictments - Permissibility - Accused pleading guilty - moving in Revision to revise and mitigate sentence - Pleading exceptional circumstances - Is it a ground for the exercise of revisionary powers - Quantum of sentence is a matter for the discretion of the Trial Judge ? Criminal Procedure Code - Section 174.

The Accused - Petitioner was indicted alleging that the Accused - Petitioner had hired some vehicles from a Company called M on several occasions by fraudulently obtaining the possession of several vehicles fraudulently posing himself as a Police officer attached to the Attorney General Department - an offence under Section 403. In view of the provisions of Section 174 of the Criminal Procedure, the Respondent had filed separate indictment in the High Court of Colombo.

The Accused pleaded guilty to all the counts listed under separate indictments in all the cases. The High Court sentenced him to 2 years rigorous imprisonment per each count in the respective indictments. Thereafter he moved the Court of Appeal by way of Revision to set aside the sentence or in the alternative to impose a lesser sentence.

The Respondent contended that, the Accused has an alternative remedy which he has failed to exercise and that he has not pleaded exceptional circumstances - and that the Accused has not given a reason for the 4 1/2 years delay for the filing of the Revision application.

Held:

[1] On examining the Petition, it is important to note that the reason set out in the Petition cannot be considered as exceptional circumstances and the Accused Petitioner had an alternative remedy.

Per Malinie Guneratne, J.

"Using the name of the Attorney General's Department fraudulently cannot be considered as a single act to determine the gravity of the offence".

[2] That a Judge should in determining the proper sentence first consider the gravity of the sentence as it appears from the nature of the act itself and should have regard to the punishment provided in the Penal Code or other Statute under which the offender is charged.

[3] Court will exercise its revisionary powers if there are exceptional circumstances such as something illegal about the order made or when the application discloses circumstances which shock the conscience of the Court Revisionary jurisdiction is to remedy a miscarriage of justice. It means that the Court will exercise revisionary powers if there are exceptional circumstances, such as, illegality In order made.

Per Malinie Guneratne, J

"The Petitioner has not complained that the Order made is illegal or the Judge has improperly exercised the discretion vested on him Ho had only submitted that the sentence is excessive".

Per Malanee Gunerathne J.

"When a person commits a crime, he is punished with imprisonment, fine or any other mode of punishment which Is prescribed In law. A criminal is to be punished simply because he has committed a crime. If punishment is not properly imposed, the aggrieved party may take the law into their hands and attempt to punish the offender. The main objective of criminal justice is to

protect society from criminals by punishing them under the existing penal system. The Court has to weigh all relevant factors in order to determine the blameworthiness of the offender"

APPLICATION in Revision from a Judgment of the High Court of Colombo. Cases referred to:

1. Perera Vs. Silva 1908 4 ACR 79
2. Ameen Vs Rasheed 1936 -6 NCLW
3. Letchumi Vs. Perera and another 2000 3 SLR 151
4. Selliah Marimuttu Vs. Sivapakkiam 1986 1 CALR 264
5. Halwan and others Vs. Kaleelna Rahuman 2000 -3 SLR 50
6. Carolis Vs. Dharamaratne Thero and others 2006 2 SLR 321
7. Kumarasinghe and another Vs. Rajapaksha 2007

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