State v Nand [2005] FJMC 17; Criminal Case No 214 of 2005 (2 December 2005)

IN THE FIRST CLASS MAGISTRATES’ COURT
AT LAUTOKA IN THE WESTERN DIVISION

CRIMINAL CASE NO. 214 OF 2005

STATE

V

PARMA NAND

For the Prosecution: P C Vijay Kumar
For the Accused: Mr Faiz Khan

Date of Hearing: 22/11/05
Date of Judgment: 02/12/05

JUDGMENT

The accused is charged with the following:

CHARGE

FIRST COUNT

Statement of Offence (a)

FORGERY: Contrary to section 341(1) of Penal Code Cap 17.

Particulars of Offence (b)

Parma Nand s/o Shiu Charan on the 18th day of February, 2004 at Lautoka in the Western Division with intent to defraud, forged a certain document namely Land Transport Authority Application for Transfer of ownership of motor vehicle form for vehicle registration number AL 688 purporting to have been signed by Ashween Ajay Nand s/o Parma Nand.

SECOND COUNT

Statement of Offence

UTTERING FORGED DOCUMENT: Contrary to section 343(1) of Penal Code Cap 17.

Particulars of Offence

Parma Nand s/o Shiu Charan on the 18th day of February, 2004 at Lautoka in the Western Division with intent to defraud, uttered a certain forged document namely Land Transport Authority Application for Transfer of ownership of motor vehicle form for vehicle registration number AL 688 knowing the same to have been forged.

THIRD COUNT

Statement of Offence (a)

OBTAINING MOTOR VEHICLE ON FORGED DOCUMENT: Contrary to Section 345 of Penal Code Cap 17.

Particulars of Offence (b)

Parma Nand s/o Shiu Charan on the 18th day of February, 2004 at Lautoka in the Western Division with intent to defraud obtained ownership of motor vehicle registration number AL 688 by virtue of forged instrument namely Land Transport Authority Application for Transfer of ownership of motor vehicle form for vehicle registration number AL 688 of Ashween Ajay Nand s/o Parma Nand, knowing the same to have been forged.

FORTH COUNT

Statement of Offence

FORGERY: Contrary to section 341(1) of Penal Code Cap 17.

Particulars of Offence

Parma Nand s/o Shiu Charan on the 18th day of February, 2004 at Lautoka in the Western Division with intent to defraud, forged a certain document namely Land Transport Authority Application for Transfer for Ownership of motor vehicle form for vehicle registration number D7826 purporting to have been signed by Ashween Ajay Nand s/o Parma Nand.

FIFTH COUNT

Statement of Offence (a)

UTTERING FORGED DOCUMENT: Contrary to section 343(1) of Penal Code Cap 17.

Particulars of Offence (b)

Parma Nand s/o Shiu Charan on the 18th day of February, 2004 at Lautoka in the Western Division with intent to defraud uttered a certain forged document namely Land Transport Authority Application for Transfer of ownership of motor vehicle form for vehicle registration number D8726 knowing the same to have been forged.

SIXTH COUNT

Statement of Offence

OBTAINING MOTOR VEHICLE ON FORGED DOCUMENT: Contrary to section 345 of Penal Code Cap 17.

Particulars of Offence

Parma Nand s/o Shiu Charan on the 18th day of February, 2004 at Lautoka in the Western Division with intent to defraud obtained ownership of motor vehicle registration number D8726 by virtue of forged instrument namely Land Transport Authority Application for Transfer of ownership of motor vehicle form for vehicle registration number D8726 of Ashween Ajay Nand s/o Parma Nand, knowing the same to have been forged.

It is not in dispute that the trucks registration number AL 688 and D8726 belonged to Ashween Ajay Nand (Ashween). Ashween is the son of the accused. It is also not in dispute that the accused paid for and bought the trucks in the sum of $4,500.00 and $7,000.00 in 1990 and 1995 respectively. AL 688 is a Bedford truck and D8726 is a Toyota truck. The accused bought AL 688 on 13/02/90 and it was transferred in his name and he transferred it on 17/09/96 in the name of his son Ashween (see Exhibit P7). The accused bought the truck registration number D8726 on 09/06/95 and it was transferred in Ashween’s name on the same day. The trucks were used to cart sugarcane and the accused kept all the income although the trucks were in Ashween’s name.

The accused is 56 years old and is married and lives with his wife and they have four children – three daughters and one son (Ashween). The accused was working for Fiji Electricity Authority and retired in 2001 and Ashween was staying with his parents at Drasa Vitogo on their farm.

Ashween married Radhika Anand Sharma (PW 1) in 1999 and they have one daughter. Ashween was working for Fiji Electricity Authority as a linesman and died on 11/01/04. He was electrocuted whilst at work. After Ashween’s death Radhika stayed with the accused and his family and her brother Ritesh Anand Sharma (PW2) came to live with her to give her comfort and support. Radhika left the accused’s house on 02nd of February 2004 due to some unhappy differences. She took her daughter with her and as well as PW2.

The prosecution’s case is that the accused forged Ashween’s signatures on the transfer forms in respect of the two trucks and had the trucks transferred in his name on 19th February 2004. Counts 2 and 3 follow Count 1 and likewise Count 5 and 6 follow Count 4.

The burden of prove is on the prosecution. It has to prove beyond all reasonable doubt that the accused forged Ashween’s signatures on the two transfer forms.

The definition of forgery is contained in section 332 of the Penal Code which reads as follows:

Definition of forgery

"(1) Forgery is the making of a false document in order that it may be used as genuine, and in the case of the seals and dies mentioned in this Division the counterfeiting of a seal or die, and forgery with intent to defraud or deceive, as the case may be, is punishable as provided in this Division.

(2) It is immaterial in what language a document is expressed or in what place within or without the Commonwealth it is expressed to take effect.

(3) Forgery of a document may be complete even if the document when forged is incomplete, or is not or does not purport to be such a document as would be binding or sufficient in law.

(4) The crossing on any cheque, draft on a banker, post office money order, postal order, coupon, or other document the crossing of which is authorized or recognized by law, is a material part of such cheque, draft, order, coupon, or document".

The definition of false document is contained in section 333 of the Penal Code which reads as follows:

False document

"(1) A document is false if the whole or any material part thereof purports to be made by or on behalf or on account of a person who did not make it nor authorize its making; or if, though made by or on behalf or on account of the person by whom or by whose authority it purports to have been made, the time or place of making, where either is material, or, in the case of a document identified by number or mark, the number or any distinguishing mark identifying the document, is falsely stated therein; and in particular a document is false –

(a) if any material alteration, whether by addition, insertion, obliteration, erasure, removal, or otherwise, has been made therein; or

(b) if the whole or some material part of it purports to be made by or on behalf of a fictitious or deceased person; or

(c) if, though made in the name of an existing person, it is made by him or by his authority with the intention that it should pass as having been made by some person, real or fictitious, other than the person who made or authorized it.

(2) A document may be a false document for the purposes of this Division notwithstanding that it is not false in any such manner as is described in subsection".

It is not in dispute that the trucks were transferred in the name of the accused on 19/02/04. The differences between the accused and Radhika became very bitter and as a result that Radhika filed a civil claim against the accused and she also lodged a complaint with the Land Transport Authority which respect to the transfer of the trucks in February 2004 and also reported the matter to the police in June 2004.

As a result of the police report the accused was interviewed on 29/10/04. It was put to the accused that the trucks were transferred in his name by forgery of Ashween’s signature. It was not suggested to him as to who forged the signatures nor was it suggested to him that he forged the signatures. The accused denied the allegation and said that his son Ashween had executed the transfer forms during his life time and he only effected the transfer with the Land Transport Authority after his death and he further explained that the transfer forms were filled by a girl at Sun Insurance office at Lautoka. This girl was not called to give evidence. She may have shed some light as to whether the transfer forms were already signed. The accused also explained that he produced Ashween’s and his driver’s licence to the Justice of Peace and the Land Transport Officer when the transfer was witnessed and processed.

The accused was formally charged on 25/11/04 and in Counts 1 and 4 it was put to him that he forged Ashween’s signature. The accused did not make a statement.

Radhika said that she did not agree to the transfer of the trucks. She said that the accused asked for the third party polices in respect of the trucks and she gave the same to him as she was under pressure. She said that the accused asked her to sign her husband’s signatures on the transfer forms and she refused to do so. She also said that she saw one Rohit Rai who is the accused’s cousin practice the accused’s signature in her presence and in presence of her brother PW2. She was unable to say as to who signed on the transfer forms and she also gave two statements to the police one on 15/7/04 and the other one on 28/12/04. She said that she compared her husband’s signature on the two transfer forms with the signature on their marriage certificate and she said that the signatures on the transfer forms did not belong to her husband. She was quite adamant that her husband did not sign the transfer forms before his death.

Kala Singh (PW3) was the Justice of Peace who witnessed the signatures on the transfer forms. She said that the accused came in with the two transfer forms already completed and had a person with him who claimed to be the owner and the accused’s son. She said that the accused produced his driver’s licence as identification and the other person did not have a driver’s licence so he produced his birth certificate and she accepted the birth certificate as sufficient identification and got this person to sign as the owners. She said that she just took the accused’s words for granted that the other person was his son. She was quite extensively cross-examined and she agreed that she cannot identify a person through a birth certificate. She said that she would not sign a document without a person being present. She was unable to identify the other person except to say that she was persuaded by the accused that he was his son and owners of the two trucks. In fairness to this witness it was never suggested to her that she witnessed the two sets of transfer forms which were already signed. I have some difficulties with her evidence. She said that the transfer forms produced to her had all the particulars filled in. The two transfer forms has the owners (Ashween’s) driver’s licence number 701233 as identification. If the driver’s licence was not produced then PW3 should have crossed that portion off and perhaps instead inserted that a birth certificate was produced as identification. The prosecution did not ask her to explain this matter and in the absence of any explanation the two transfer forms would in my view speak for themselves that the driver’s licence was indeed produced. I guess I have no choice but to draw that inference that the licence was indeed produced when she witnessed the transfer forms.

Sanjani Reeta Prasad (PW4) is Land Tranport Authority (LTA) Officer who processed the transfer forms. She said that before she did that she checked in the LTA records and more importantly she said that they have the signatures of the owners in the record and she checked the signatures on the transfer forms with the signatures in their record and she said that the signatures were correct and so she processed the transfer of the trucks in the accused’s name.

I do not have Ashween’s signature from LTA Office as it was not produced in evidence. However, what matters most in this case is that PW4 checked Ashween’s signatures on the transfer forms with the signatures in their record and the signatures matched and thereafter she processed the transfer. She was in the best position to do so.

The prosecution expects me to match the signatures on the various documents which bears Ashweens’s signatures. I must confess that I do not hold any expertise in identifying signatures. I believe that is the province of the experts however I have ventured to compare the two signatures on Exhibit 4 and from what I have noticed these two signatures are very different.

PW1 and PW2 have an interest in this case. PW1 said that if she wins this case it will improve her chances of success in the civil claim and PW2 said that he will go to any length to back up his sister PW1. Unfortunately PW3 has been placed in an awkward situation in light of my findings against her and I cannot treat her as a witnessed who is totally unbiased. PW4 in my view is a totally independent witness and I accept her evidence and consequently I accept the version given by the accused that the two transfer forms were signed by his son during his lifetime and therefore hold that the accused did not forge Ashween’s signatures himself or got anybody else to do it for him.

The date 18/02/04 was inserted on 18/02/04 itself on the transfer forms but the prosecution is not relying on that issue at all. The prosecution is only alleging that the accused forge Ashween’s signatures. The particulars of the charge do not contain anything about inserting the date 18/02/04 so I can not hold that against the accused.

In the circumstances I acquit the accused of Counts 1 and 4 as I said earlier that Counts 2 and 3 follow Count1 and likewise Counts 5 and 6 follow Count 4 so I acquit the accused of Counts 2, 3, 5 and 6 as well.

Mohammed Shafiullah Khan
Resident Magistrate