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State v Arora [2011] FJHC 817; HAC125.2007S (12 December 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL JURISDICTION


CRIMINAL CASE NO. HAC 125 OF 2007S


STATE


vs


MONIKA MONITA ARORA


Counsels : Mr. P. Bulamainaivalu and Ms. R. Drau for the State
Mr. P. Sharma for the Accused


Hearings : 22nd to 24th, 28th to 30th November and 5th to 7th December, 2011
Summing Up: 12th December, 2011


SUMMING UP


  1. ROLE OF JUDGE AND ASSESSORS
  1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
  2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
  3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
    1. THE BURDEN AND STANDARD OF PROOF
    1. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove her innocence. Under our system of criminal justice, an accused person is presumed to be innocent until she is proved guilty.
    2. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that she is guilty. If you have any reasonable doubt about her guilt, then you must express an opinion, that she is not guilty.
    3. Your decision must be based exclusively upon the evidence which you have heard in this Court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
    1. THE INFORMATION
    1. The accused, Monika Monita Arora, was charged with two counts; first, of "money laundering", contrary to section 69(2)(a) and 3(b) of the Proceeds of Crime Act 1997, and second, of "corrupt practices", contrary to section 376(b) of the Penal Code, Chapter 17. On the first count, it was alleged that, between 9th December 2005 and 11th May 2007, at Nabua in the Central Division, she and others laundered money by disposing of $472,466.47, being proceeds of crimes, for her and others benefit, which she ought reasonably to know, was derived indirectly, from the falsification of Vinod Patel Company's books of account. On the second count, it was alleged that, on 13th May 2007, at the Sports City Plaza at Laucala in the Central Division, she corruptly offered $10,000 cash to Navin Sen, a Vinod Patel Company accountant, to stop him from investigating the cashing of suspicious Vinod Patel cheques.
    1. THE MAIN ISSUES
    1. In this case, as judges of fact, each of you will have to answer the following questions:
      • (i) On count No. 1, did Monika Arora, between 9th December 2005 to 11th May 2007, at Nabua in the Central Division, laundered money by disposing of $472,466.47, being proceeds of crime, for her and others benefit, which she ought reasonably to know, was derived indirectly from the falsification of Vinod Patel Company's books of account?
      • (ii) On count No. 2, did Monika Arora, on 13th May 2007, at Sports City Plaza at Laucala in the Central Division, corruptly offered $10,000 cash to Navin Sen, an accountant for Vinod Patel Company, to stop investigating the cashing of suspicious Vinod Patel Company cheques?
  1. THE OFFENCES AND THEIR ELEMENTS
  1. On Count No. 1, for the accused to be found guilty of "money laundering", the prosecution must prove beyond reasonable doubt, the following elements:
  2. The word "disposed", in the "Shorter Oxford English Dictionary", Oxford University Press, 1970, is defined as, "To place suitably, adjust; to arrange in a particular order; to put away; to put in place, distribute; to regulate; to order, control, direct; to bestow, make over; to deal out, distribute; to make fit or ready; to fit, prepare". In other words, the word "disposed" in the context of the offence, as described, meant the accused must deal with the money in the way described above.
  3. The phrase "proceeds of crime" meant "the proceeds of a serious offence". At this stage, we must also discuss what is meant by the phrase "unlawful activity", as described in the offence. The two phrases are interlinked, as far as the offence of "money laundering" is concerned. An "unlawful activity" in the criminal law context, is an offence. For example, in the context of this case, the State is relying on "the falsification of the Vinod Patel Company books of account", as the "unlawful activitiy", on which it based its case. An employee who wilfully and with intent to defraud, alters or falsifies any book, paper, valuable security or account of her employer, is guilty of a misdemeanour and is liable to 7 years imprisonment. (Section 307(1) of the Penal Code, Chapter 17). Falsification of a company's books of account is a serious offence. Any money derived indirectly from the falsification of a company books of account, would qualify as "proceeds of a serious offence", and hence are "proceeds of crime". In the context of this case, any money derived indirectly from the falsification of the Vinod Patel Company books of account, would qualify as "proceeds of a serious offence", and hence are "proceeds of crime".
  4. For the accused lo be liable in count No. 1, it is mandatory that the prosecution prove beyond reasonable doubt that, the accused "ought reasonably to know that the money she disposed of, was derived indirectly from some form of unlawful activity ie. the falsification of Vinod Patel Company books of account. In answering this issue, you, as assessors and judges of fact, will have to carefully consider what the accused did, said and the surrounding circumstances, as revealed by the other witnesses. In other words, you will have to examine the time the accused started working for the company, her positions in the various sections of the company, her training and knowledge of the policies and procedures in the company, her cashing of the company cheques, what she said she did with the company cash, and what company officials said happened with the company cash. You will have to draw inferences of facts from the proven primary facts to answer the issue that, the accused ought to reasonably know that the money she disposed of, was derived indirectly from the falsification of the Vinod Patel Company's book of accounts.
  5. On count No. 2, for the accused to be found guilty of "corrupt practices", the prosecution must prove beyond reasonable doubt, the following elements:
  6. The word "corruptly" means "dishonestly or immorally" ie. to do something dishonestly or immorally. "Gift" means "any money or property". The word "forebearing" means "to stop yourself from saying or doing something that you could or would like to say or do". In the context of this case, the allegation was that, on 13th May 2007, the accused corruptly offered $10,000 cash to Navin Sen, Vinod Patel Company's accountant, to induce him to stop investigating the suspicious cash cheques.

F. THE PROSECUTION'S CASE


  1. The prosecution's case were as follows. The accused started working for Vinod Patel Company, at Centerpoint, in March 1999. She started as a cashier, and did such work for 3 years, earning about $1.82 per hour. Therefter, she was promoted to be an accounts clerk, earning $2 per hour. In 2004, she became the Managing Director's secretary, earning $2.60 per hour, and in 2005, she was paid $3 per hour. Between 2004 and 2007, the accused's annual salary was between $6,000 and $7,500.
  2. While working as an accounts clerk, according to the prosecution, the accused underwent 6 to 7 months training in the account's department on its policies, procedures and its computer software. According to the prosecution, the accused was familiar with the workings of Vinod Patel Company's accounts section, and she was responsible for doing telegraphic transfers at ANZ Bank Centrepoint for overseas payments. However, she was not allowed to process and do local payments.
  3. According to the prosecution, the accused began to prepare and forged four Vinod Patel Company cheques from 6th January to 10th February 2006. These are cheques D33, D34, D35 and D36 [Prosecution Exhibition No. 144 to 147].
  4. Between 13th June 2006 to 11th May 2007, according to the prosecution, the accused systematically falsified Vinod Patel Company's books of account, by raising fictitious invoices, payment vouchers and cheques. A summary of the relevant documents and cheques are itemized in Prosecution Exhibit No. 37. According to the prosecution, the accused forged the signatures and initials of various employees and Directors of Vinod Patel Company, in preparing and raising the above invoices, vouchers and cheques. According to the prosecution, the accused secretly flouted the rules, policies and procedures in raising the above invoices, vouchers and cheques.
  5. Between 6th January 2006 and 11th May 2007, according to the prosecution, the accused went alone to the ANZ Bank Centrepoint, on numerous occasions. She dishonestly used her position as an employee of Vinod Patel Company, to put the ANZ Bank tellers into a false sense of security. She then, with an intend to defraud, encashed 35 forged Vinod Patel Company's cheques, and obtained a total of $472,466.47 cash. She took the money home. According to the prosecution, only $41,272.38 had been recovered from the accused. A total of $431,194.09 remained unrecovered.
  6. On 12th May 2007, the accused's fraudulent activities were discovered by the company's Chief Financial Officer, Mr. Kumar Shankar. He found that company cheque No. 37010 (D1) was cashed for $15,172.38. He found this unusual, and he directed Navin Sen, a company accountant to check the matters out. According to the prosecution, the accused confessed to Kumar Shankar that she fraudulently encashed the cheque, and asked for the investigation into the matter to stop.
  7. On 13th May 2007, the accused approached Navin Sen at the Sports City Plaza for a meeting. She offered Mr. Sen $10,000 cash to induce him to stop investigating the cashing of suspicious company cheques. Mr. Sen refused to take the offer, and informed Mr. Shankar later. The prosecution is asking you, as assessors and judges of facts, that given the above, you must find the accused guilty as charged on both counts. That was the case for the prosecution.
  8. G. THE ACCUSED'S CASEOn 22nd November 2011, the first day of the trial, the information was put to the accused, in the presence of her counsel. She pleaded not guilty to the two counts. In other words, she denied the allegations against her. When a prima facie case was found against her, at the end of the prosecution's case, she choose to give sworn evidence, in her defence. Her defence was very simple. She denied falsifying the Vinod Patel Company books of accounts. Referring to Prosecution Exhibit No. 37, which itemized the relevant invoices, payment vouchers and company cheques, the accused denied falsifying and/or forging the above invoices, payment vouchers and cheques. She appeared to admit cashing the above company cheques and more than 36 cheques.
  9. However, in cashing the above company cheques, the accused said, she was merely following the instructions of her superiors. She said, the company's Chief Financial Controller, Mr. Kumar Shankar, and the Managing Director, Umakant Patel, sent her to ANZ Bank, Centerpoint, to cash the cheques mentioned in Prosecution Exhibit No. 37. She said, after cashing the cheques, she got the cash, and gave the same to Mr. Kumar Shankar and Umakant Patel. She denied taking the $472,466.47 cash home. She said, she did not launder any Vinod Patel Company money, and denied count No. 1.
  10. On count No. 2, the accused denied offering $10,000 cash to Navin Sen, on 13th May 2007, to induce him to stop investigating the cashing of suspicious company cheques. She said, she did not meet Mr. Sen on 13th May 2007, and spent all that day at home. She said, she did not commit the offences alleged against her, and ask you, as assessors and judges of fact, to find her not guilty as charged on both counts, and acquit her accordingly. That was the case for the accused.

H. ANALYSIS OF THE EVIDENCE


Count No. 2: Corrupt Practices:


  1. Before dealing with count No. 1, I will deal first with count No. 2. The parties' position on this allegation are completely at odds with one another. Mr. Navin Sen said that, on 13th May 2007, the accused rang him on his mobile phone, and arranged to meet him at the Sports City Plaza at Laucala. He went over there, and met the accused, in her car, registration No. EM 291. According to Mr. Sen, the accused offered him $10,000 cash, in $50 bills, to induce him to stop investigating the suspicious cashing of Vinod Patel Company cheques at ANZ Centerpoint Bank. Mr. Sen said, he did not take the offer, and later reported the attempted bribery to Kumar Shankar.
  2. The accused, on the other hand, denied Mr. Sen's allegation. She said, she never offered $10,000 cash to Mr. Sen as alleged, and never met him on 13th May 2007. She said, it was mother's day on 13th May 2007, and she spent the whole day at her home. In any event, as she was a married woman, she said she would not meet a man alone, in her car. Which version of events to accept, is a matter for you, as assessors and judges of fact. In fact, your decision will be based on your assessment of the credibility of Mr. Navin Sen, as against that of the accused. You have heard both witnesses in the witness stand, and your decision of who is the credible one, is a matter for you.

Count No. 1: Money Laundering


  1. In connecting the accused to the offence of "money laundering", the State primarily relied on direct and circumstantial evidence. In other words, the State's case against the accused, will depend on whether or not, you, as assessors and judges of fact, accept the States' direct and circumstantial evidence.
  2. In terms of direct evidence, the State, through Kumar Shankar (PW3), the company's Financial Controller at the time, provided the originals of 36 company cheques, and its supporting invoices and payment vouchers, to prove the falsification of Vinod Patel Company's book of accounts. Kumar Shankar prepared a list, which he submitted as Prosecution Exhibit No. 37, in which he itemized the serial no. of the company cheques, the no. of the payment voucher, the date of the payment voucher, the AP invoice no., the AP Invoice Reference, the amount in the AP invoice, the voucher made payable to, the cheque no., the payee of the cheque, the date of the cheque, the amount encashed and the date on which the cheques were encashed. A copy of Prosecution Exhibit No. 37 is with you, and its original will be provided to you, during your deliberation, and you must study it carefully.
  3. The originals of the invoices, the payment vouchers, and the Vinod Patel Company cheques, and its corresponding ANZ Bank Statements in Cheque Account No. 1555134, were submitted as Prosecution Exhibits No. 5 to 151. These exhibits will be given to you during your deliberation. Mr. Shankar, in his evidence, said that the above documents were not properly prepared, and most of the signatures and initials in the invoices, payment vouchers and cheques were forged. However, he said, he didn't know who did the forgeries in those documents.
  4. Likewise, Navin Sen (PW4), a Vinod Patel Company accountant at the time, and head of its payment department, said the above invoices and payment vouches were not approved by him or his department. He said, his and his staff's signatures and initials, were forged in the above documents. He said, the documents were highly irregular in that the payee in the payment voucher was not the same as the payee in the cheques. Also, payments to the invoices were not done in cash. It was done only in not negotiable cheques, unless prior arrangements were made. Mr. Shankar also confirmed what Mr. Navin Sen said. Mr. Sen said, he did not know who did the above forgeries, and falsification of company records.
  5. The originals of the 36 company cheques mentioned in Prosecution Exhibit No. 37 were shown to Mr. Jitendra Patel (PW5), on 5th and 22nd June 2007, by the police, to observe. PW5 is a director of Vinod Patel Company and one of those authorized to sign company cheques. In his evidence, he said, the cheques contained his purported signature. He said, he didn't sign the cheques, and someone forged his signatures. However, he said, he didn't know who forged his signature, in those cheques.
  6. Abdul Gaffar (PW6); Heena Bilimoria (PW7), Rajnitu Sharma (PW8) and Veeral Patel (PW9) were Vinod Patel Company employees responsible for preparing, checking, and approving company invoices and payment vouchers. Some of the invoices and payment vouchers were shown to them. They denied preparing and signing the same. Arvindra Udit (PW11) of Carpenters Shipping; Salesh Sharma (PW12) of Neptune Shipping; Edward Lockington (PW13) of Pacific Agencies and Eric Leong (PW14) of Shipping Services, all said they didn't receive any payments from Vinod Patel on the mentioned vouchers, although their companies were named as payees in the same.
  7. The defence complained that the abovementioned invoices, payment vouchers and cheques were not examined by a handwriting expert. They appear to say that, as a result, it cannot be accepted that the above documents were forged. Even if their submission was rejected, they said, it cannot be proven it was the accused who prepared the allegedly forged invoices, payment vouchers and cheques. Which version of events you accept, is a matter for you, as assessors and judges of fact. The prosecution have provided the original invoices, payment vouchers and cheques, as itemized in Prosecution Exhibit No. 37, and tendered as Prosecution Exhibit Nos. 5 to 151. Kumar Shankar, the Vinod Patel Company Chief Financial Controller, Mr. Jintendra Patel, Director of the Company, Navin Sen, the company's accountant, other employees of the company and other shipping services employees, have jointly stated that the abovementioned invoices, payment vouchers and cheques were forged and falsified. Whether or not, you accept their view, is a matter for you, as assessors and judges of fact.
  8. To connect the accused to the above alleged forged and falsified invoices, payment vouchers and cheques, the State relied on circumstantial evidence. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime. It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think it would be an unusual case indeed in which a jury can say "We now know everything there is to know about this case". But the evidence must lead you to the sure conclusion that the charge which the defendant faces is proved against him. Circumstantial evidence can be powerful evidence, but it is important that you examine it with care, and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case. Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, and neither the prosecution, the defence nor you should do that.
  9. In this case, there was evidence that the accused presented the 35 Vinod Patel cheques itemized in Prosecution Exhibit No. 37, to the ANZ Bank Centrepoint, for cashing between 6th January 2006 and 11th May 2007 - a period of approximately 1 year 5 months. Elenoa Sikivou (PW15), an ANZ teller at the time, said she remembered the accused encashing cheques 51553, 51550, 51549 and 55138 [i.e Prosecution Exhibit No. 144, 145, 146 and 147], between 6th January and 10th February 2006. When cross-examined, she said, she remembered the accused cashing two cheques only. Anare Sovu (PW16), Kaveeta Kirpal (PW17), James Kumar (PW18), Tanya Koi (PW19), Rajneeta Maharaj (PW20), Ritesh Rattan (PW21), Farina Bi (PW22) and Nazmeen Latif (PW23), all ANZ Bank tellers at Centerpoint, at the time, remembered cashing the other Vinod Patel cheques listed in Prosecution Exhibit No. 37. They said, the accused encashed the above cheques. They said, the accused often came alone, and took the bundles of $50 notes in paper bags. They said, the accused was always friendly and chatting when the cheques were encashed. They said, the accused took the money out of the bank.
  10. In her evidence, the accused admitted that she had been cashing Vinod Patel's cheques since 2004. She said, she may have cashed the cheques listed in Prosecution Exhibit No. 37, but she couldn't recollect. She said, she may have cashed more than 36 cheques for Vinod Patel Company. She said, in this case, she was directed by Kumar Shankar and Umakant Patel, to cash the cheques at ANZ Centerpoint. She said, at the relevant times, she cashed the cheques, took the money out of the bank, and gave the same to Kumar Shankar and Umakant Patel. However, Kumar Shankar, as Chief Financial Officer of Vinod Patel at the time, denied the above. He said, as of today, $431,194.09 still has to be recovered from the accused.
  11. According to Mr. Shankar, the accused's alleged offending came to light on 12th May 2007, when he was looking at the company's bank statement. He discovered that cheque No. 37010 was encashed on 11th May 2007, for $15,172.38. The voucher said the money was payable to Carpenters Shipping. Mr. Shankar then directed Mr. Navin Sen, head of department for Accounts payment, to investigate the matter. They found some irregularities in the relevant invoice and payment vouchers. On the same day, the accused saw Kumar Shankar, and admitted that she cashed the above cheques, and had the money with her. She asked that the investigation into the matter be stopped, and she will return the $15,172.38 on Monday. According to Shankar, the accused returned the money on Monday. According to the accused, she admitted cashing the above cheque, but she said, she gave it back to Mr. Shankar on 11th May 2007. Which version of events to accept is a matter for you.
  12. We have discussed the allegation in count No. 2, and if you, as assessors and judges of fact, accept the State's version of events on that count, this may further constitute strong circumstantial evidence against the accused. It is a matter for you.
  13. According to Mr. Shankar, the accused's husband asked for a meeting with the company on 15th May 2007. He came to the Vinod Patel Company premise on 15th May 2007, and paid a total of $26,100 as part-settlement of the missing company money. The accused's husband used the accused's ATM cards. According to Mr. Shankar, the accused and her husband, had paid a total of $41,272.38 to the company, in part settlement of the $472,468.47 allegedly taken by the accused. The accused, on the other hand, said she did not authorize her husband to pay $26,100 from her account. According to her, the company stole her $26,100 on 15th May 2007, but she admitted, she had not reported the matter to the police, as of today. Which version of events you accept, is a matter for you.
  14. The prosecution points to the properties owned by the accused and her husband, including their liabilities, as possible motives for her to commit the offences. On 18th January, 2006, the accused and her husband loaned $210,000 to buy their residential property at 70 Sekoula Road, Laucala Beach Estate. They were required to pay $1,354 per month for the next 24 months. They had a business in Arora Holding Limited, incorporated on 23rd April 2004. They had a taxi, registration No. LT 507. They owned two motor vehicles, registration No. DU 884 and EM 291. In January and February 2006, they spent $6,680 on overseas travel. At a time when the accused was taking on more financial responsibilities, she allegedly encashed Vinod Patel Company cheques totalling $33,000 [see D33, D34, D35 and D36 cheques]. According to Mr. Shankar, $400,000 plus have not been recovered. Were Vinod Patel Company's money being used by the accused to meet her new found financial responsibilities? This is a matter for you.
  15. In considering the above, do you think that the accused:

These are matters for you, as assessors and judges of fact, to decide.


  1. You have heard the evidence of all the prosecution and defence witnesses. You have observed their demeanour in the courtroom, while they were giving evidence. How did they behave in the courtroom? Were they forthright when examined-in- chief, cross-examined and re-examined? Were they evasive or argumentative when examined-in-chief, cross-examined and re-examined? How did they dress to court? Given the above, my address to you on the law, your life experiences and common sense, you should be able to decide which witness's evidence or part of his evidence is reliable and therefore to accept, and which witness's evidence or part of his evidence is unreliable and therefore to reject, in your deliberation in this case.

I. SUMMARY


  1. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove her innocence, or prove anything at all. In fact, she is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the acccused's guilt, you must find her guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find her not guilty as charged.
  2. Your possible opinions in this case are:

Accused - Guilty or Not Guilty


(ii) Count No. 2: Corrupt Practices

Accused - Guilty or Not Guilty


  1. You may retire to deliberate. Once you have reached your decisions, you may inform the clerk, so that we could reconvene to receive them.

Solicitors for the State : Office of Director of Public Prosecution, Suva.
Solicitors for Accused : R. Patel Lawyers, Barristers & Solicitors, Suva.

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