Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Buwaneka Aluwihare PC, Preethi Padman Surasena and E. A. G. R. Amarasekara, JJ., partly allowed an appeal that was filed in order to seek answer to the question whether the sentence imposed on the accused-appellant-appellant was excessive.

The accused had been convicted for the offence of Criminal Breach of Trust in a sum of Rs 527,496.00, punishable under Section 391 of the Penal Code. Upon conviction, the accused has been imposed with a sentence of a term of 5 years rigorous imprisonment and in addition a fine of Rs. 700,000.00 was also imposed, which carried a default sentence of 21 months rigorous imprisonment. Aggrieved by the conviction and sentence, the accused had appealed to the Court of Appeal but the Court of Appeal dismissed the appeal. Thus, the instant appeal was filed.

The Counsel for the appellant, Mr Faisz Musthapha PC with Kamran Aziz and Ershan Ariyaratnam contended that 30 years have elapsed since the date of the offence, and it was highly inappropriate to incarcerate a person who has had a clean life since then after the lapse of such a long period. It was also submitted that the accused was incarcerated for a period of 8 months consequent to the conviction and sentence by the High Court before he was released on bail, pending the appeal by the Court of Appeal. The attention of the court was also drawn to the deteriorating medical condition of the accused.

The Court while party allowing the appeal observed that financial fraud was committed by the accused when he was placed in a position of trust in the capacity of the Accounts Executive by his employer. Thus, setting aside the sentence imposed by High Court, the Court modified and reduced the sentence and fine. [State v. Udugamaralalage Walter Mendis, 2020 SCC OnLine SL SC 6, decided on 11-09-2020]

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Case BriefsHigh Courts

Tripura High Court: Recently, the Court decided an appeal against the acquittal by a Sessions Court in Tripura which had set aside the conviction recorded by the Magistrate Court in a criminal misappropriation case under Sections 408 and 468 IPC. While hearing the appeal, the Court examined the Police Report on which the Magistrate took cognizance as well as the evidences and witnesses examined by the trial court Judges.

The Court while examining the documents relied upon (for alleged embezzlement of funds) by the Magistrate to convict the accused-respondent noticed that they were not specifically proved which was sufficiently noticed by the Sessions Court as well. Counsel for the respondent submitted that police took about eight years in submitting charge-sheet and thereafter it took another four years in concluding the trial before the Magistrate and that the accused had been subjected to harassment because of such long delay in the investigation and trial stating that that the charges framed against the accused were vague and the prosecution utterly failed to prove the charges and hence the order of acquittal should not be disturbed.

The Court observed that the fundamental principle of criminal justice is that an accused should be tried with an initial presumption of innocence and burden absolutely lies on the prosecution to prove the charges framed against the accused which can’t be shifted. Also, the Court further stated that that if two views on the basis of the evidence are reasonably possible the High Court should not interfere in an order of acquittal recorded by the trial court or by the appellate court and in an appeal under Section 378  CrPC or under proviso to Section 372  CrPC, the High Court has full power to review and re-appreciate the evidence on which the initial order of conviction was recorded by the trial Court and the subsequent order of acquittal recorded by the appellate Court to arrive at a reasonable conclusion.

The Division Bench further explained that a case of criminal breach of trust has to be proved by documentary evidence and the prosecution must be clear as to what are the documents which required to be proved to take the charges against the accused at home, and, how those documents to be proved. The Judges expressed shock over the fact that neither the investigation nor the prosecution was conducted aiming to prove before the Court the material allegation in respect of the charges of breach of trust and also that such an important case of criminal misappropriation and criminal breach of trust by a public servant was not attached with any importance by the investigating agency and even, the prosecution was conducted without any aim and object.

Further, the Court noticed that the trial court Judge was not attentive enough while hearing the matter, at the time of recording evidence and said that a trial Judge can’t be a mute spectator while proceedings are going on. Explaining the duties of a trial Judge, the Bench said that it also should not take the role of the prosecutor but he should ensure that the materials on the basis of which charges have been framed are properly and legally proved. It is the duty of the trial Judge to see and to find out all the material aspects of evidence of a case for fair ends of justice.

It directed that a trial Judge should not remain silent but should control a criminal case by actively participating therein to find out the truth and must question the witnesses in order to unearth the truth. Finally, the Court directed all trial Judges to remain alive at the time of recording evidence and to actively participate in the process and should control the criminal trial by such active participation to find out the truth and to ensure justice and dismissed the appeal upholding the acquittal. [Teliamura Nagar Panchayat v. Shri Samar Bhusan Sarkar and State of Tripura,  2017 SCC OnLine Tri 63, decided on 21.02.2017]