1958 Present: Basnayake, C.J., and de Silva, J.

FERNANDO, Appellant, and PIYADASA, Respondent

S. C. 294-D. C. Kandy, 2,030/MB

    Contract-Purpose of stifling criminal prosecution-Illegal consideration.

The defendant executed a mortgage bond in favour of the plaintiff for the purpose of stifling a criminal prosecution of his brother-in. law for criminal' breach of trust. When the bond was put in suit, the defendant pleaded that it was executed for all illegal consideration.

Held, that "all bargains tending to stifle criminal prosecution whether by suppressing investigation of crime, or by deterring citizens from their public duty of assisting in the detection or punishment of crime are void as against public policy. "

The fact that the same act creates a criminal liability as well as a civil obligation will not render void a contract for the settlement of the civil obligation even though a prosecution has been instituted and proceedings are pending. In such a case, however, the bond creating the civil obligation should not disguise the true nature of the transaction; it should contain a clear indication of the fact that it is given to secure the civil liability.

APPEAL from a judgment of the District Court, Kandy.

H. W. Jayewardene, Q.C., with N. D. M. Samarakoon and P. Ranasinghe, for Plaintiff-Appellant.

E. B. Wikramanayake, Q.C., with P. Somatilakam, for Defendant Respondent.

Cur. adv. vult.

March 21, 1958. BASNAYAKE, C. J.-

The plaintiff-appellant (hereinafter referred to as the plaintiff) sought to enforce a mortgage bond executed in his favour by the defendant- respondent (hereinafter referred to as the defendant) for a sum of Rs. 12,000. The defendant resisted the action on the ground that the bond was executed for an illegal consideration, viz. for the purpose -of stifling the criminal prosecution of his brother-in-law. The learned District Judge upheld the defendant's plea and dismissed the plaintiff's action. This appeal is from that judgment.

Shortly the material facts are a follows: The defendant's cousin, one H. Francis, was in January 1954: a storekeeper of the Gampola Kerosene Oil Depot of P. S. Fernando & Bros. of which firm the plaintiff was a partner. Francis suddenly disappeared on 10th January 1954 from his place of work. The defendant was informed of Francis's disappearance by the latter's wife. He thereupon went in search of him and found him at Mirissa. He recovered from him a sum of Rs. 2,800 and a key, the property of his employer. He then took Francis to the house of one Aladdin Fernando, 9nother partner of P. S. Fernando & Bros., and delivered to him the money and the key. Meanwhile-on 5th January

1954 Juan de Silva Patabendige Samuel de Silva, the Chief Clerk of P. S. Fernando & Bros., lodged a complaint with the police to the effect that Francis had -committed criminal breach of trust in respect of 6,807 gallons of Kerosene oil valued at Rs. 7,419/63. On 11th February 1954 G. Jayasinghe, Inspector of Police, made a report to the Magistrate under section 121 (2) of the Criminal Procedure Code intimating that he had inquired into the complaint made on 25th January 1954 by Juan de Silva Patabendige Samuel de Silva of P. S. Fernando & Bros., Kandy, to the effect that H. Francis of Keerapane who was employed as the Storekeeper of the Kerosene Oil Depot at Gampola since 1939 had committed criminal breach of trust in respect of 6,807 gallons of Kerosene oil valued at Rs. 7 ,419/63, an offence punishable under section 391 of the Penal Code, and that further inquiries were being made. On the same day Francis appeared in Court and was allowed bail in Rs. 1,000 to appear on 25th February 1954. When Francis appeared in Court on that day the Magistrate made the following order: "Prosecution to file plaint on 11.3 ". On that day Inspector Jayasinghe stated that the inquiries were incomplete as a large number of account books h