On about 18 October 1993 John Scott, the former network manager of Shellmade a "spot check&quok" of the depot and had discovered
certain discrepancies. It appeared that company records had been altered and that fuel had been supplied to one Ram Pyare free of
charge. The matter was reported to the Police. The Respondent was interviewed and charged with three offences of larceny by servant
contrary to section 274 (a) (i) of the Penal Code, Cap 17 it being alleged that he had stolen 10,500 litres of diesel worth approximately $6,400 during the period May to August 1993.
At thel the Respondent's cautioned interview was tendered as Exhibit 19. No objection was taken eken either as to its contents or
its admissibility. In his interview the Respondent admitted that he had altered records of fuel supplied, that he had supplied fuel
to Ram Pyare without charging him for it and that he had not obtained permission from his superiors for acting as he had done. He
stated that he had supplied the fuel by way of compensation for fuel lost by Pyare as a result of leakage from old fuel drums. He
admitted that he had not kept records of the amount of the leakages claimed by Pyare and that he had not actually seen fuel leak
from a faulty drum. He however denied receiving any payment for the fuel and said that he was only following a practise adopted by
his predecessor in the cause of good customer relations. Pyare was a customer of at least 20 years standing.
When the Respondes formally charged he denied stealing the fuel and once more stated that he had given it onit only as compensation.
In due course the r came on for trial and the Respondent gave evidence on oath. He repeated that he had only only supplied fuel in
order to compensate customers for losses. He admitted supplying Ram Pyare with 10,500 litres of diesel. He told the court that this
was a small amount when compared with Pyare's purchases which averaged 25-30,000 litres per month. The fuel given was surplus fuel
which came either from pipe cleaning, from returned drums or from cleaned tanker compartments. He said (Page 59 of the record):
ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "we clean 120 drums a day during the crushing season. The company expects us to dest destroy the oil we get in cleaning. If it
is not contaminated we sell it. I decide whether to destroy of sell. It is considered as waste. It does not come in the stock card."
The Resident Magistrate acquitted the Respondent at the end of the trial and the DPP now appeals on the ground that the Resident Magistrate
erred in law in acquitting the Respondent when the evidence against him was sufficient to prove the case beyond all reasonable doubt.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The judgment is to be found at pages 63 to 75 of the record. The Resident Magistrate found that "the prosecution evidence shows
beyond any doubt that the fuel in question had been delivered to Ram Pyare free of charge as compensation for the leakages or shortages
without any benefit derived by the accused in such an exercise". In my view this overstates the position.
For the prosecution to succeed it had to be proved that the accused, as bailee had converted fuel belonging to Shell intentionally
without a claim of right made in good faith, without mistake and with knowledge that Shell's property was being converted. The Respondent's
defence was that what he had taken was surplus fuel and while the existence of such surplus fuel and its source was not agreed (see
evidence of PW3, Kamlesh Kumar) it was conceded that fuel lost during the process of supply to customers was sometimes replaced free
of charge. This was a small but important concession since it appeared to allow the manager a discretion to supply fuel otherwise
than by sale and of course otherwise then by fraudulently converting it.
The Resident Magistratehe end of his judgment criticised the system of compensating for fuel lost. He found that ihat it was open
to abuse and exploitation by dishonest managers. In the present case however, he accepted the Respondent's explanation which certainly
received some support from some of the prosecution evidence.
Probably the prosecution's strongest argument was that the Respondent had clearly gone supplying the fuel in an u an under hand manner.
When asked to explain the discrepancies he was initially unable to do so. There was also the logical difficulty in the defence case
that had the fuel supplied actually being "surplus fuel" than there would have been no need to alter the records. The Respondent's
account at the trial of the origin of the surplus fuel was significantly different from that given by him in the cautioned interview.
The amount of fuel supplied over a 3 month period strikes me as being very large particularly as the Respondent had never seen a
leaking barrel and had no records of leakage.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Reading throug record I do not share the Resident Magistrate's confident assessment of the prosecution's on's case. In my view the
circumstances taken in the round are distinctly suspicious. But suspicion is not enough to prove a case beyond reasonable doubt and
there was no onus on the Respondent to prove that he had acted honestly. Once the supply of free fuel for compensation had been conceded
the Resident Magistrate was, in my view, justified in coming to the conclusion that the burden of proof against the Respondent had
not been discharged. The appeal fails and is dismissed.
