When the application of Miss Maureen Seneviratne,
President’s Counsel for a Writ of Certiorari against the
Honorable Attorney General, Mr. K C Kamalasabeysan, President’s
Counsel and Mr. Rienzie Arsecularatne, President’s Counsel to
have an order indicting Eardley Seneviratne, Attorney-at-Law, on
a charge of forgery quashed, was resumed before His Lordship,
Justice I S Imam, His Lordship stated that he had great sympathy
for the Petitioner and fully understood the pain of mind she had
suffered as a result of the publicity given in the Leader
Newspaper regarding the action taken by the Attorney General
against her late brother Eardley Seneviratne.
His Lordship suggested to the parties that the
Petitioner’s grievances could be suitably remedied by an agreed
statement to be published in the newspapers. Thereafter when the
case was resumed Mr. R K W Goonesekera, Senior Counsel for the
Petitioner, informed Court that the Petitioner has given thought
to His Lordship’s suggestion and also out of deference to the
suggestion of Court, has submitted the text of a statement which
she is satisfied with for consideration. The Respondents to the
Application have been served with a copy of the Statement Mr. C
R de Silva, President’s Counsel, Solicitor General who appeared
for the Attorney General and the Additional Solicitor General
stated that he is not disputing the correctness of the facts set
out in the Statement. The Court accepted the contents of the
motion and the statement which it described as appropriate and
justifiable and permitted the Petitioner to withdraw her
application.
The contents of the statement are; that the
Additional Solicitor General Mr. Rienzie Arsecularatne after
consideration of a report submitted by State Counsel at the
conclusion of Police investigation had taken a decision on 2nd
January 2001 that there was material to indict the late Mr.
Eardley Seneviratne, Attorney-at-Law who had attested a Power of
Attorney the original, the duplicate and the protocol on a
charge of forgery.
There was no contemplated charge by Mr. Rienzie
Arsecularatne that the said Notary had himself written the said
two signatures on the said Power of Attorney.
The said decision of Mr. Arsecularatne was based
on the report of the Examiner of Questioned Documents to whom
the Police had submitted the Notary’s protocol copy and not the
original Power of Attorney for comparison of the signatures of
the Executants and witnesses with the signatures appearing on
other documents.
Mr. Arsecularatne’s said decision was not a
final decision. It was capable of review by the Attorney
General. The Attorney General had himself taken no decision on
this matter.
Mr. Eardley Seneviratne died on the 17th January
2001 and up to date an indictment had not been prepared and
signed to be served on him.
The Police made investigation on a complaint
made by the two sisters of Upali Wijewardene, Anoja Wijesundera
and Kalyani Attygalle and Shalitha Wijesundera, 15 years after
the Power of Attorney was executed and 15 years after the
disappearance of Upali Wijewardene.
In this case, after Eardley Seneviratne died on
17th January 2001, the "Sunday Leader" newspaper published a
news item on 25th March 2001 that the Attorney General had
decided to serve indictment on Eardley Seneviratne for being a
party to a forged document, namely a Power of Attorney, executed
by the late Upali Wijewardene dated 12th October 1982. But
before indictment could be served on Eardley Seneviratne, he
died.
On reading this news item, the Petitioner who is
the sister of the late Eardley Seneviratne, obtained reports
from a world renowned handwriting expert, Professor Chandra
Sekharan, M.A., M.Sc, Ph.D, B.L.Del, F Inst P (London)
F.F.S.(India) F.AFS., C.FISC, DABF, which specifically state
that the Power of Attorney and the Protocol of the Power of
Attorney bore the genuine signatures of Upali Wijewardene and
the late R T de Mel, who was one of the witnesses to the
documents, giving detailed reasons for this conclusion. Mrs R T
A de Mel has sworn an affidavit that it was her husband’s
signature.
The Petitioner submitted this report on the
Power of Attorney, to the Honourable Attorney General and
requested him to grant the Petitioner an interview in order to
enable her to state her position fully. The Petitioner
thereafter met the Attorney General in his Chambers with her
Lawyer, Desmond Fernando, President’s Counsel at which interview
the Hon. Attorney General admitted having received and read the
report of Professor P Chandra Sekharan. At the interview, the
Hon. Attorney General commented on the excellence of the report
which he had before him and stated that he accepted the Expert’s
findings as stated in the Report and that it was a shame that
the local handwriting experts were unable to produce such a
report, that he had examined the file (which he had before him)
but there was no decision to indict the late Eardley Seneviratne,
Attorney-at-Law. Therese were all matters referred to in the
Petitioner’s affidavit with supporting documents in her
application for a Writ of Certiorari to the Court of Appeal and
told to Mr. Desmond Fernando P.C. and the Petitioner at the
interview. The Hon. Attorney General did not deny these facts by
way of Affidavit, nor did he deny the contents of the letters
sent to him by the Petitioner, which the Petitioner had annexed
to her petition. That is why Counsel for the Petitioner, R K W
Goonesekera, in the course of his submissions stated that since
the Attorney General had not filed objections by way of
affidavit to the Petitioner’s application, he cannot be heard on
any matter referred to in the petition or supporting affidavit
of the Petitioner, nor could the Solicitor General who appeared
for the Attorney General speak for the Attorney General.
Thereafter the Petitioner made an application to the Court of
Appeal for relief.
Counsel for the Petitioner, Mr. R K W
Goonasekera, in the course of his submissions brought it to the
notice of the Court that although Eardley Seneviratne was
charged for being a party to a forged Power of Attorney, up to
date neither the Attorney General, the Additional Solicitor
General Rienzie Arsecularatne, the CID, the EQD or any member of
the Attorney General’s Department had seen the original Power of
Attorney or the duplicate of the Power of Attorney,. The EQD’s
report was on a Protocol and not the original Power of Attorney,
but the indictment was framed on a forged Power of Attorney. The
Power of Attorney was available from the Registrar General, the
duplicate from the Registrar of Lands and the original from the
widow of Upali Wijewardene, who has sworn an affidavit stating
inter-alia that the Power of Attorney is in her possession and
custody and that neither the CID, the EQD or the Attorney
General’s Department made a request of her to release it, which
she would have done, provided her interests were protected.
When Rienzie Arsecularatne stated in his
affidavit that "the Criminal Investigation Department could not
trace the original of the purported Power of Attorney, nor the
duplicate, and as such there was no alternative but to rely on
the protocol of the said purported Power of Attorney", it is a
blatant falsehood. Rienzie Arsecularatne before making a
decision to indict Eardley Seneviratne on a Protocol failed to
ask the EQD why his report was on a protocol and not the
original or duplicate of the Power of Attorney; he did not
direct the EQD to obtain the original or the duplicate of the
Power of Attorney from the Registrar of Lands or the Registrar
General.
That the complaint of forgery was made by the
two sisters of Upali Wijewardene, namely, Anoja Wijesundera,
Kalyani Attygalle and the son of Anoja Wijesundera - Shalitha
Wijesundera on 5th June 1977, fifteen years after Upali’s
disappearance alleging that they suspected that the Power of
Attorney executed by Upali Wijewardene to be a spurious one.
This Power of Attorney was executed on 12th October 1982, 15
years prior to the making of the complaint.
Upali’s Intestate heirs were his widow, Lakmani
and his two sisters Mrs A K Attygalle (Kalyani) and Mrs H A D
Wijesundera (Anoja). On 8th October 1987, the afore said two
sisters filed testamentary proceedings in the District Court of
Colombo. Claiming Letters of Administration in respect of
Upali’s estate and Order Nisi was granted ex-parte. Lakmani
intervened to have the Order Nisi vacated as there was no proof
of Upali’s death, nor could his death be presumed as 7 years had
not lapsed. Thereupon the Court refused to issue Letters of
Administration. Thereafter, the law was changed substituting one
year for 7 years. On 28-04-1988 Lakmani applied for Letters of
Administration and the dispute as to who was entitled to the
Letters of Administration was settled by an agreement entered
into on 18-01-1989 in the Court of Appeal. Mrs Attygalle and Mrs
Wijesundera, the sisters of Upali, agreed that the Letters be
issued to Lakmani and further agreed to withdraw their
application.
Even before letters were issued, Lakmani (later
Mrs Welgama) was using Upali’s Power of Attorney and continued
to do so after letters were issued to her. The sisters of Upali
Wijewardene raised no objection to her administering the Estate
on the Power of Attorney, which they complained of 15 years
after it was executed, was a forged document. The complaint made
by the two sisters of Upali Wijewardene to the CID was not
produced by the Attorney-at-Law for the sisters of Upali
Wijewardene, although an undertaking was given by Counsel for
the sisters of Upali Wijewardene that it would be produced. Mr.
Rienzie Arsecularatne, in the affidavit filed by him makes no
mention of the complaint made to the CID by the sisters and
Shalitha Wijesundera, which geared them into action. No one
knows the contents of the complaint. The total failure to
produce the complaint is a big lacuna in the case of the
prosecution. For the EQD to arrive at a conclusion that the
Power of Attorney bears a forged signature of Upali Wijewardene,
he must examine the original document, which should have been
handed over to him by the CID on completion of its
investigation. The CID had failed to do so. It is beyond doubt
that the report of the EQD is not on the original Power of
Attorney. The EQD himself admits that the reports are on the
protocol.
Mr. Rienzie Arsecularatne totally failed to take
into consideration any of these matters when deciding to convert
a summary offence into an indictable offence. He can do so only
after a careful consideration of all these matters, which he
failed to do. Mr. Rienzie Arsecularatne’s decision to indict
Eardley Seneviratne shows that he acted arbitrarily, unfairly
and failed to take into consideration that the EQD’s report was
not on the original Power of Attorney which was alleged to be
forged or that the complaint on which the CID acted was not
produced. He made a decision to convert a summary offence to an
indictable offence only on the reports of the EQD which Reports
were on the Protocol. There is no doubt that there is a hidden
hand behind this, said Mr. Goonesekera in concluding his
submissions.
R K W Goonesekera with S C Crossette Thambyah
instructed by Sheila Jayatillake appeared for the Petitioner.
C R de Silva, P.C. Solicitor General appeared
for the Attorney General and the Additional Solicitor General
Wijedasa Rajapakse, P.C. appeared for the Intervenient
Respondents.
HOME
