State v Naidu [2007] FJMC 1; Criminal Case No 244 of 2006 (15 February 2007)

IN THE RESIDENT MAGISTRATES COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CRIMINAL CASE NO.: 244 OF 2006

STATE

V

APPAL NAIDU s/o Krishan

Prosecution: Acting Inspector Shaukat Ali
Defence: Mr Kamal Kumar

Date of Hearing: 08/02/07
Date of Judgment: 15/02/07

JUDGMENT

The accused is charged with the offence of Larceny.

It is alleged that he stole a sum of $10.40 from Lautoka City Council on 11/06/05 and at the time he was an employed by Lautoka City Council and as such he should have been charged with the offence of Larceny by Servant. I find it rather intriguing that the prosecution choose to take this course and the prosecution did not offer any explanations for taking this course.

The accused was employed as a parking metre technician by Lautoka City Council since 1999 until his suspension on 14/06/05.

On 11/06/05 at around 9.00 a.m Mr Pushp Raj (Raj) the town clerk and one of his staff Mr Kaleem Begg (Begg) were traveling in the former’s motor vehicle on Naviti Street. The motor vehicle was driven by Begg and just after Lautoka Hotel Raj saw the accused putting coins in his tool kit which was supplied by the Lautoka City Council. As soon as he saw that he asked Begg to stop the car and he got off and walked across the road to the accused who was doing the work on the right hand side of the street.

He immediately questioned the accused as to why did he put the money in his tool kit and the accused denied that and Raj told the accused that he saw him putting the coins in his tool kit. According to Raj the accused apologized and said that he will not do it again. Raj then asked the accused to open the tool kit and he saw plenty coins in there.

Raj then called Kaleem over for him to see the coins and Kaleem got upset at the accused and by this time Raj was a bit furious and said to the accused that the coins were meant for the parking meters and not for keeping them in the tool kit.

Raj said that he tried to count the coins and as there were too many coins he did not do so. He said he put 80 cents in a parking metre (20c x 4). On the issue of counting money Begg said that he counted the money at the scene and it was $10.40 which was handed over to Raj in the presence of the accused. Raj subsequently took the coins to his office together with the accused and he got Ramend Sharma to do the counting and the coins totaled $9.60. If Begg’s version is correct then Raj could not have put the 80 cents in the parking metre.

Raj got the cashier to lock the coins and he said that accused was again pleading for mercy and asking for forgiveness. Raj told the accused that the matter would be reported to the Lautoka City Council and he asked the accused to hand over the tool kit and keys and the diary. He said that the accused also wrote a letter in which he was pleading for mercy (Exhibit P1). In Exhibit P1 accused said in paragraph 1 "I admit that I have taken about $10.00 from the parking metre". Exhibit P1 was on the face of it was an admission and a confession and I am surprised that the counsel for the defence did not challenge its admissibility in a trial within a trial as the admission was made to Raj who in my view was a person in authority.

On 14/06/05 (Exhibit P2) the accused was suspended by Raj without pay and in the letter it is stated that accused was caught stealing on the spot.

Raj explained the mechanism of the parking metre. He said that the money eventually ends up in the vault to which the accused had no access and that the upper part of the metre would only contain two coins – either: 2 x 20c or 1 x 10c and 1 x 20c. If this was the correct position then the accused was indeed carry excess moneys as he was required to slot in moneys in the metre which had empty vaults.

Francis Vijay Ram (Ram) is the parking metre supervisor and has been working for Lautoka City Council for the last 18 years. He said in his evidence in chief that the upper portion of the parking metre would contain either one or two coins but in cross examination he said after looking at (Exhibit D3 (a)) that the top portion would have up to $2.00 and he further said that the $2.00 collected from the top portion should be put in the tool kit. He further said that it was quite possible that parking metre could be full in succession and he also said that the accused should put money in the metre which was empty.

The accused in his unsworn statement said that five parking metres were full in succession and the prosecution has not adduced any evidence to suggest that the five parking metres were not full in succession. This creates a huge doubt which has to be resolved in the favour of the accused. In light of Ram’s evidence the confession made to Raj cannot be true and I therefore reject the confession. I find that the prosecution has not been able to put this case beyond all reasonable doubt and the accused is acquitted of the charge of Larceny.

[Mohammed S. Khan]
Resident Magistrate

15/02/2007