State v Sinha [2010] FJHC 475; HAC046.2008 (18 October 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC046 of 2008

STATE

V

SALENDRA SEN SINHA

Hearing: 15th October 2010
Ruling: 18th October 2010

Counsel: Ms A. Tuiketei & Ms A. Lomani for State
Mr. H.A. Shah for Accused

RULING

[1] The defence applies for a no case to answer after close of the case for the prosecution.

[2] Section 231 of the Criminal Procedure Decree 2009 provides:

(1) When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defence may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person (or any one of several accused) committed the offence.

(2) When the evidence of the witnesses for the prosecution has been concluded, the court shall, it if considers that there is evidence that the accused person (or any one or more of several accused persons) committed the offence, inform each such accused person of their right –

• (a) to address the court, either personally or by his or her lawyer (if any); and
  
• (b) to give evidence on his or her own behalf; and
  
• (c) to call witnesses in his or her defence.
  

(3) In all cases the court shall require the accused person, or his or her lawyer (if any), to state whether it is intended to call any witnesses as to fact other than the accused person, and upon being informed of this the judge shall record the response to the question.

(4) If an accused person says that he or she does not intend to give evidence, or to adduce evidence, then the prosecutor may sum up the case against the accused person.

(5) If an accused person states that he or she intends to give evidence or to adduce evidence, the court shall call upon the accused person to commence his or her defence.

[3] Section 231(1) is in identical terms with its predecessor, section 293(1) of the Criminal Procedure Code. The test for a no case to answer therefore remains the same under the new law.

[4] The test is that there must be some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence.

[5] The credibility, reliability and weight of the evidence are matters for the assessors (State v. George Shiu Raj & Anr. Criminal Appeal No. AAU0081 of 2005S).

[6] The charges against the accused are:

COUNT ONE
Statement of Offence

FORGERY: Contrary to Section 335(2)(a) of the Penal Code, Cap 17.

Particulars of Offence

SALENDRA SEN SINHA s/o Jagendra Prasad between the 2nd day of June 2005 and 23rd day of August 2005 at Suva in the Central Division, with intent to defraud, forged a Fiji Islands Revenue and Customs Authority cheque number 133908 dated 2nd June 2005 by erasing the name of JONE VEIMATAYAKI and the figure $1,502.82 and inserting the name of HONEYMOON BEACH RESORT LIMITED and the figure $178,834.82.

COUNT TWO
Statement of Offence

CAUSING THE PAYMENT OF MONEY BY VIRTUE OF FORGED INSTRUMENT: Contrary to Section 345(1) of the Penal Code, Cap 17.

Particulars of Offence

SALENDRA SEN SINHA s/o Jagendra Prasad on the 23rd day of August 2005 at Suva in the Central Division, with intent to defraud, caused the payment of $178,834.82 to the HONEYMOON BEACH RESORT LIMITED account by virtue of a forged instrument namely, a Fiji Islands Revenue & Customs Authority cheque number 133908, knowing the same to have been forged.

COUNT THREE
Statement of Offence

FORGERY: Contrary to section 335(2)(a) of the Penal Code, Cap 17.

Particulars of Offence

SALENDRA SEN SINHA s/o Jagendra Prasad between the 1st day of April and 23rd day of August 2005 at Suva in the Central Division, with intent to defraud, forged a Fiji Islands Revenue and Customs Authority cheque number 123082 dated 4th April 2005 by erasing the name of PRAVIN KUMAR and the figure $1,710.31 and inserting the name of HONEYMOON BEACH RESORT LIMITED and the figure $93,384.75.

COUNT FOUR
Statement of Offence

CAUSING THE PAYMENT OF MONEY BY VIRTUE OF FORGED INSTRUMENT: Contrary to Section 345(a) of the Penal Code, Cap 17.

Particulars of Offence

SALENDRA SEN SINHA s/o Jagendra Prasad on the 17th and 23rd day of August 2005, at Suva in the Central Division, with intent to defraud, caused the payment of FJD93,384.75 to the HONEYMOON BEACH RESORT LIMITED account by virtue of a forged instrument namely a Fiji Islands Revenue & Customs Authority cheque number 123082 knowing the same to have been forged.

COUNT FIVE
Statement of Offence

MONEY LAUNDERING: Contrary to Section 69(2)(a) and (3)(a) of the Proceeds of Crimes Act 27 of 1997.

Particulars of Offence

SALENDRA SEN SINHA s/o Jagendra Prasad on the 17th and 25th day of August, 2005 at Suva in the Central Division, engaged directly by withdrawing the gross sum of FJD184,333.57, which was the proceeds of crime, from the account of HONEYMOON RESORT LIMITED held at the Westpac Banking Corporation and he knew that the money in that account was derived from an unlawful activity namely forgery.

[7] The focus of the application is the forgery counts, that is, counts one and three. Mr. Shah submits that there is no evidence that the accused committed forgery as alleged in counts one and three.

[8] Counsel for the State submits that the involvement of the accused can be inferred from the circumstantial evidence.

[9] Forgery is defined by section 332(1) of the Penal Code. It means making of a false document in order that it may be used as genuine. Section 333(1) of the Penal Code states that a document is false – "if any material alteration, either by addition, insertion, obliteration, erasure, removal or otherwise, has been made to the document."

[10] In counts one and three, the prosecution alleges that the accused forged cheques of Fiji Islands Revenue and Customs Authority by erasing details of two genuine taxpayers and by inserting details of a non-taxpayer namely, Honeymoon Beach Resort Limited.

[11] There is evidence that the accused was involved in the formation of Honeymoon Beach Resort Limited. There is also evidence that this Company was a shelf-company. It was never operational. The prosecution led evidence that Honeymoon Beach Resort Limited had not filed Value Added Tax (VAT) Returns and therefore was not entitled for any refund of tax. Evidence has been led that Honeymoon Beach Resort received VAT refunds and payments were deposited into the Company's bank account operated by the accused. Thereafter various cash withdrawals were made from the account. Some withdrawals were made to purchase an expensive vehicle.

[12] The two cheques subject of the forgery counts are P40 and P42. According to the evidence, the cheques belong to Fiji Islands Revenue and Customs Authority. The cheques contain computer generated signatures of the authorized senior employees of Fiji Islands Revenue and Customs Authority. The cheques are not altered as alleged in the charges. There is no evidence that details of the genuine taxpayers were erased and inserted with a false taxpayer's details. In this respect, the forgery counts are defective. However, that does not mean that the cheques are not forged. There is evidence from which the assessors can conclude that the cheques are forged.

[13] False details such as name of the taxpayer, cheque number of another taxpayer and amounts were added in genuine cheque leaves so that the documents could be used as genuine. It is in this sense that the cheques are forged, and not in the manner alleged by the prosecution in the charges.

[14] Counsel for the State submits that the forgery occurred outside Fiji Island Revenue and Customs Authority and not inside Fiji Islands Revenue and Customs Authority. Counsel submits that since there is evidence that the accused benefitted from the forgery, he is the forger.

[15] This submission cannot be sustained on the evidence. Whilst there is evidence from the employees of Fiji Islands Revenue and Customs Authority that the cheques P40 and P42 were not generated by their system, the witnesses offered no explanation how it was possible for the accused to obtain genuine computer generated signatures of authorized signatories on the cheques. In his caution interview, the accused admits that the cheques were given to him by two employees of Fiji Islands Revenue and Customs Authority. The prosecution led no evidence to rebut that this admission of the accused is a lie. In fact, the prosecution relies on the truth of the admission to prove the charges.

[16] It therefore follows that the only inference that can be drawn from these facts is that the cheques were forged by someone inside Fiji Islands Revenue and Customs Authority and then given to the accused as part of a conspiracy. Unfortunately, the prosecution neither alleges a conspiracy, nor a joint enterprise in relation to the forgery of the cheques. If the prosecution had alleged a joint enterprise, then it could have been argued that the accused was part of a common intention to do an unlawful act and it did not matter who the actual forger was. Since the prosecution has not presented the case in this manner, and any amendment cannot be made to the charges, without causing prejudice to the accused, I find there is no evidence to implicate the accused on counts one and three. I enter a verdict of not guilty in respect to counts one and three. On the evidence, I find the accused has a case to answer on counts two, four and five.

Daniel Goundar
JUDGE

At Suva
18th October 2010

Counsel:
Office of the Director of Public Prosecutions for State
Office of Messrs. Haroon Ali Shah for Accused