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“Hidden
hand” behind Eardley’s probe The agreement was reached when the matter came up before Justice I.S. Imam in the Court of Appeal in the resumed hearings where Ms. Seneviratne PC made an application for a Writ to quash the Attorney General from indicting her brother Eardley Seneviratne, a lawyer practising in Avissawella who was subjected to a Police investigation for allegedly attesting a Power of Attorney executed by the late business tycoon Upali Wijewardene, on a charge of forgery. The then Additional Solicitor General Rienzie Arsecularatne had decided on 2 January, 2001 to indict Mr. Seneviratne based on the Police investigation and the report of the EQD (Examiner of Questioned Document ). Mr. Seneviratne died a little over two weeks later. It transpired during the hearings that the Attorney General had not given his approval for Mr. Seneviratne to have been indicted. It also transpired during the proceedings that Rienzie Arsecularatne's decision was based on the report of the EQD who had himself relied on the Police investigation that had submitted the Notary's protocol copy and not the original Power of Attorney for comparison of the signatures of Upali Wijewardene and witnesses. The Police conducted investigations on a complaint made by the two sisters of the late Upali Wijewardene, viz., 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 during a flight from Malaysia in 1983, on the eve of his 44th birthday. In this case, shortly after Eardley Seneviratne died, The Sunday Leader newspaper had published a news item in its issue of March 25, 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 October 12, 1982. The Attorney General told court that no such decision was taken by the Attorney General to indict Mr. Eardley Seneviratne at that time. On reading this news item, the Petitioner (Ms. Maureen Seneviratne PC), 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 stated 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. Ms. Maureen Seneviratne submitted this report on the Power of Attorney to the Attorney General and requested him to grant her an interview in order to enable her to state her position fully. She thereafter met the Attorney General in his Chambers with her lawyer, Desmond Fernando PC, at which interview the Attorney General admitted having received and read the report of Professor Chandra Sekharan. At the interview, the Attorney General stated that he accepted the Expert's findings and that there was no decision to indict the late Eardley Seneviratne, Attorney-at-Law. These were all matters referred to in the Petitioner's affidavit with supporting documents in her application for a Writ of Certiorari. Mr. R.K.W. Goonasekera, Counsel for the Petitioner, in the course of his submissions brought it to the notice of the Court that although Mr. 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 had sworn an affidavit stating, inter-alia, that the Power of Attorney is in her possession and custody, and that neither the CID, the EQD nor the Attorney General's Department made a request of her to release it, which she would have done. But Rienzie Arsecularatne had stated in his affidavit that the CID could not trace the original of the purported Power of Attorney, nor the duplicate, and as such that there was no alternative but to rely on the Protocol of the purported Power of Attorney. Mr. Goonasekera told court that Rienzie Arsecularatne failed to ask the EQD why his report was on a Protocol and not the original or even the duplicate of the Power of Attorney before making a decision to indict Eardley Seneviratne. He also said that Rienzie Arsecularatne 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. In his submissions to court, Mr. R.K.W. Goonasekera stated that 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. 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, he said. The issue of the genuineness of the Power of Attorney of Upali Wijewardene assumed importance when the popular businessman's two sister's Mrs. Kalyanai Attygalle and Mrs. Anoja Wijesundera filed testamentary proceedings against the third inestate hier, his wife, Lakmini (later Mrs. Welgama) in the District Court of Colombo in respect of the wide-spread properties owned by the flamboyant Upali Wijewardene. Letters of Administration and an Order Nisi was granted, but Mrs.Lakmini Wijewardene intervened to have the Order Nisi vacated as there was no proof of Upali Wijewardene's death, and the then presumption of death period of seven years had not lapsed. Court then refused to grant Letters of Administration, and the law was later changed to reduce 7 years to one year. Subsequently, Upali Wijewardene's two sisters, by agreement decided to grant Letters of Administration to Ms. Lakmini Wijewardene. Fifteen years after the disappearance of Upali Wijewardene - in 1998, the two sisters and a nephew Shalitha Wijesundera complained to the CID that the Power of Attorney of Upali Wijewardene was a forgery. The EQD admitted during the course of the Writ proceedings that he had not investigated the original Power of Attorney nor the duplicate, but only the Protocol, and based his report on the Protocol. In his submissions to court, R.K.W. Goonasekera stated that 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. 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, he said. R.K.W. Goonesekera with S C Crossette Thambyah instructed by Sheila Jayatillake appeared for Ms. Maureen Seneviratne PC. C R de Silva, PC Solicitor General appeared for the Attorney General and the then Additional Solicitor General Rienzie Arsecularatne PC. Wijedasa Rajapakse PC appeared for Mrs. Kalyani Attygalle and Mrs. Anoja Wijesundera, the Intervenient Respondents. |
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