State v Kumar [2004] FJMC 3; Criminal Case No 2666 of 2003 (2 July 2004)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 2666 of 2003

STATE

V

HINESH KUMAR

BEFORE AJMAL G KHAN ESQ
RESIDENT MAGISTRATE

2ND JULY 2004

Prosecution: Insp. Permal
Defence: Mr S Sharma.

JUDGMENT

The accused in this case has been charged with the following offence:

STATEMENT OF DEFENCE.

Obtaining money by false pretence contrary to section 309 (a) of Penal Code Cap 17.

PARTICULARS OF OFFENCE.

Hinesh Kumar s/o Raman Lal Chibhabhai between 23rd day of April 2002 and 23 of May 2002 at Suva with intent to defraud obtained $5,800 cash from Mohd. Haroon s/o Biniyamin by falsely pretending that he was in a position to arrange for his family migration to New Zealand.

The prosecution called 3 witnesses and the accused elected to give sworn evidence in his defence.

FACTS:

Prosecution allege as follows:-

The complainant approached the accused at his travel agency in April 2002. The accused was a senior travel consultant in charge of Lodhias Travel Agency in Suva. The complainant wanted a permanent visa to migrate to New Zealand for himself and his family. The accused quoted him a full fee of $9,000 for a visa under general skills and asked him to bring certain documents namely marriage certificate, passports, Taxi permits, bank statement, land title, a sponsor letter from New Zealand and $3,000 cash deposit.

The complainant besides driving his taxi was also a carpenter but had no trade certificates. On 23rd April the complainant paid $3,000 cash and handed all documents to asked for except the sponsor letter which was given at a later date to accused. A receipt was given by the accused for $3,000 on a piece of paper (Exhibit 3a). A further $2,000 was requested and paid on 9/5/02 which is also noted on a piece of paper by accused.

The complainant was then asked to await a call from accused for his medical and police clearance. He was called to fill and sign his medical forms later. The accused asked for further $800 for medical which was paid on 23/5/02 (Exhibit 3b) Thereafter various enquires were made by the complainant who was told to await approval of visa. Accused assured complainant he could obtain his visa. The complainant was getting agitated about his payments made without any results. The accused showed a New Zealand High Commission receipt of application but the complainant noticed it didn’t have the name of the complainant on it. The complainant refused to pay further. He was told to pay $2,000 so he would not have to sit the English test required for the application. The complainant at first refused as he was English educated and would have had no problem. However, he later paid $2,000 (Exhibit 3c).

Once the accused made a phone call from his office in presence of complainant allegedly to New Zealand High Commission as the complainant was concerned about his progress on application. Immediately after putting down the phone accused told the complainant that his Visa would be issued next week. He asked for final $1,000 which the complainant paid. The complainant made enquires at his office but was told that the accused had left for New Zealand. The complainant then reported the matter to police.

Accused states:

The accused on the other hand does not deny receiving the moneys receipted. He said his fees was $3,000. He said he was to obtain a migration visa for complainant and family. The application was not lodged as he says the complainant did not provide the details of his sponsor and trade certificate of a carpenter asked by accused in April/02.

He said he did not guarantee the visa to complainant on payment of $9,000. He was a senior consultant and was in charge of Lodhias Travels. He had extensive knowledge and wide experience in visa applications. In answer to his counsel’s question the accused said I did not refund the money as $3,000 was my legal fees. He also said his fee was not prescribed.

FINDING OF FACTS.

I have considered whole of evidence. The complainant and the accused both gave sworn evidence in court. The complainant was well spoken and related his story without hesitation. The accused on the other hand was brief and appeared a little hesitant to speak out openly at times in court.

I find the following facts:-

1. That the complainant agreed and relied on the accused to obtain a migration visa for a fee $9,000.
   
2. The accused requested for $3,000 as deposit and particulars as outlined in the prosecution case.
   
3. That all particulars requested and the deposit was paid to the accused in April/02 except for the sponsor letter which was given a week later.
   

I do not accept the accused waited for sponsors details to lodge application. I accept the complainant when he says if accused needed any further details of sponsor he would have provided it with the sponsor letter.

4. That the complainant had informed the accused that he was a taxi driver but was also a carpenter but without any trade certificates.
   
5. The accused received a total of $7,800 as payments for visa from the complainant.
   
6. That there was no question of refunding any money as it was paid to accused for the purpose of obtaining the visa.
   

The accused did not dispute the following:-

1. Accused showed a lodgment receipt for visa application of New Zealand High Commission to complainant.
   
2. Accused pretended to talk to someone on phone in presence of the complainant and immediately after the call said "visa will be issued next week."
   
3. Accused asked for $2,000 payment saying he does not have to sit the English test required by the New Zealand High Commission.
   
4. That accused promised to obtain a visa for complainant and family was promised and it was to be issued soon. The complainant relied upon it and kept paying as requested.
   
5. That no application for a visa for complainant and family was lodged at the New Zealand High Commission by the accused.
   
6. Accused asked for $800 for medical examination of complainant but none was carried out.
   

LAW.

In the present charge of obtaining money by false pretence, the prosecution has to prove the following ingredients:

1. The accused obtained
   
2. Money
   

100. For own use
     

4. By
   
5. False pretence
   
6. With intent to defraud.
   

The case of R –v- D..... (1955) 2 ALL ER 806 described false pretence as "a representation of an existing fact which is false."

In the case of Ramesh Chand –v- State which has been heavily relied on by the learned defence counsel as a binding authority on this court. Madam Justice Shameem there quoted a conviction of a Magistrates court where money was obtained to apply for visas. It was also seen as a future promise and there was no misrepresentation of an existing fact. The court also found the prosecution facts to be ambiguous as it referred to the money obtained as a loan and the complainant was not paid back the money nor visa obtained.

Thus the court could not find any existing fact which was represented by the accused as false. The case was on a guilty plea where court did not venture to find facts.

In the case of Morari Lal –v- Reg. Vol 15 FER 115 the Fiji Court of Appeal said in a case of false pretence that "a false pretence may be made by conduct and actions and the inference was irresistible that he intended the company to believe that what took place was an accident . . . . ". This was a false insurance claim to obtain damages insured on a motor vehicle.

ANALYSIS.

The accused in the present facts admits obtaining money. The total of receipts in evidence is $7,800 which is undisputed by the accused. Since the charge has not been amended and related to $5,800, the court will limit it to the charge. The accused also admits the money was his fee and for his benefit. This is also evidenced by the receipts given (Exhibit 3 a b c). These show it was not Lodhia’s Travel Agency receipts but personal to the accused.

The only question is whether it was by false pretence with intent to defraud?

The accused was a senior travel consultant in charge of a reputed firm of travel agents. He had extensive knowledge and experience about visa applications.

He initially asked for $3,000 which he says was his fee. But he receipted a total of $7,800. Although he may have made a promise to obtain visa and obtained money but I find the following facts to be misrepresented by the accused:

1. The application was not lodged but accused spoke to someone on phone in presence of complainant and said your visa, will be issued next week.
   
2. The application was not lodged but he asked for $800 and filled a medical form without an examination being conducted.
   
3. That after initial deposit of $3,000 he continued to ask for payments for various reasons which did not in fact exist.
   
4. The most essential requirement i.e. trade certificate was not available yet the accused continued with processing of application and requesting payments, medical etc. when in fact no application had been lodged and the accused knew or ought to have known by his experience that the complainant had no skills required under general skills.
   
5. Accused showed a receipt of lodgment of application from NZHC, which did not have the complainant’s name upon it. This was done when complainant was concerned of making payments without any progress on his application. However, the fact was that the application was not lodged so no receipt was available to be shown.
   
6. The receipt Exhibit 3 a, b, c are scribbled on pieces of paper. Exhibit 3 (b) is written in pencil.
   

It shows it was not Lodhias Travels nor meant to be used by the complainant for any official purpose.

7. Accused agreed to provide a visa for a full fees of $5,000. He took $3,000 deposit. If complainant had failed to provide details and documents as asked the accused ought to have stopped further process and demand for further payments. As a consultant he had full knowledge of the requirements and the process involved. He also knew the application was not lodged.
   
8. There was no agreement to refund money paid.
   

I find that the conduct of the accused and his actions show false pretence. The facts show an irresistible inference that the accused led the complainant to believe that his visa was on the verge of approval in fact ‘within a week’. However, the true state of affairs was well known to the accused i.e. no application had been lodged by him. The accused may have made a future promise and quoted a fee for his work as a travel consultant initially. But the seeds of his criminal intention were shewn when he continued to request for further payments by:

1. Showing him a false lodgment receipt of NZHC
   
2. Talking to someone and saying, ‘visa will be issued next week.’
   
3. Asking money for medical undone.
   
4. Asking for further payments so not to sit for the English test in accordance to requirements.
   

The presence or absence of an intent to defraud is a question of fact – KAT –v- Diment (1980) 2 ALL ER 657 I find it as a fact that the accused in the process after his initial promise to obtain a visa formed an intent to defraud on the circumstances above stated. In order to obtain payments the accused was deceitful in showing circumstances to the complainant which required further payment; when in fact no circumstances arose as the application was neither pending nor being processed. In the case of London and \Globe Finance Corp. Ltd. (1903) 1 CE. 728 the court on a question of deceit and defraud in a forgery case said "to deceive is . . . to induce a man to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. To defraud is to deprive by deceit. It is by deceit to induce a man to act to his injury. More tersely put that to deceive is by falsehood to induce a state of mind to defraud is by deceit to induce a course of action."

The facts in this case show the accused by design formed an intention to extract the total sum from the complainant by misrepresenting the facts and running away overseas. I warn myself of the complainant who may now concoct history to revenge the accused but I accept the evidence of the complainant as a credible witness.

Accused knew that a visa would not be granted without a trade certificate under the skilled category application. He knew the financial position of the complainant; by having access to his bank statements. Yet he continued to obtain full payment by leading the complainant to believe by his conduct and actions that visa will be issued next week.

I am satisfied beyond reasonable doubt that the accused obtained the full payments from the complainant under false pretence that he was going to obtain a migration visa. In fact he at all times knew there was no trade certificate and no application was ever lodged. He obtained the payments under false pretence with intent to defraud.

The accused is found guilty as charged.

Dated 2nd day of July 2004.

Ajmal G. Khan
RESIDENT MAGISTRATE