State v Sharma [2010] FJMC 84; Criminal Case 238 of 2010 (17 September 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal case No 238/10

BETWEEN

THE STATE

AND

ATIL SHARMA

JUDGEMENT

1. The accused is charged with one count of obtaining financial advantage by deception. The statement of offence and particulars of offence are as follows;
   

Statement of offence

Obtaining financial advantage by deception contrary to Section 318 of the Crimes decree No 44 of 2009.

Particulars of offence

Atil Sharma s/o Vishwa Ram Sharma on the 30th day of April 2010, in the Western Division deceived Bijay wati d/o Shiu Kumar by dishonestly obtaining 3640 dollars, this being the financial advantage from the said Bijay Wati.

BACKGROUND

2. The accused was produced before the court on the 05th May 2010. The offence is alleged to have committed on the 30th April 2010. The accused was explained his right to counsel and the accused waived his right to counsel. He pleaded not guilty to the charge. The case was taken up for hearing on the 09th August 2010. The accused was unrepresented and the prosecution was conducted by a police prosecutor.
   
3. The accused was inquired at the commencement of the trial whether he wants the evidence to be translated. He informed court that there is no need to translate the evidence. The prosecution called four witnesses. After the case of the prosecution, the court held that there is a case for the accused to reply. The charge was explained to the accused again. He was explained the options available to him under Section 179 of the Criminal Procedure decree. The accused informed court that he will remain silent.
   

THE LAW

4. Section 318 of the Criminal Procedure Decree reads as follows;
   

"A person commits a summary offence if he or she, by deception, dishonestly obtains a financial advantage from another person."

Penalty – Imprisonment for 10 years.

5. The prosecution has to prove the following ingredients to prove the guilt of the accused;
   
   1. date and place of the alleged incident
      
   2. identity of the accused
      
   100. deception
        
   4. dishonestly obtained a financial advantage
      

ANALYSIS

6. It should be noted that on the very first day when the accused was produced, he informed court that he was assaulted and was forced to admit the offence. The accused was not represented and he remained silent, during the trial. I am of the view that although the accused did not challenge the caution interview, it would not be fair to admit it as evidence as he informed at the very out set that he was forced to admit the offence. Therefore in fairness to the accused I decide to disregard the caution interview of the accused.
   
7. The complainant, Bijay Wati gave evidence and said that on the 29th April 2010 she received a call from a person and she was informed to come for an interview. She said some time back, she put an advertisement on paper looking for a job. The person who called her had told her that he is an owner of a garment factory and he is the company director. He had introduced himself as Vimlesh Sharma. She was told to come for an interview for a job as a care taker of a house.
   
8. According to her evidence, she had been already employed by a doctor in Suva. However the person who called her had insisted her to attend the interview. She had been told that she will be given a permanent job. She said that she was doing a casual job and with the anticipation of getting a better job she took leave and came to Lautoka on the same day. She was picked up by three persons from Lautoka bus stand. She identified the accused as the person who introduced himself as the company director. She said;
   

"I met him at the bus stand. I met him with two persons. He introduced them to me as his drivers. He came to the bus stand in one red van. Then he took me to a place. When we got down I followed him to his office in an upstairs. But he told me to stay with the drivers downstairs. He went upstairs and in few minutes he came down and asked for 500 dollars. He said it's the company procedure. He said they will return the money in ten days. He said upstairs is his office."

9. The witness said that when she went to the ATM machine to get 500 dollars the accused asked for another 500 dollars. She had given him 1000 dollars and it was corroborated by the bank statement tendered by the prosecution, marked as exhibit 1. The witness said;
   

"When I gave him 500 dollars he asked for another 500 dollars. He said he needs another 500 dollars as he did not have money then. He said his father took all money. Promised to give me that 500 on next Monday. Since it was getting dark I told him to put me at my cousin's place in Lautoka. But he said why do you want to go to your cousin's place when the company pays for a hotel for me to stay. They took me to Cathy Hotel. He told me to pay for the hotel 60 dollars and said they will refund it.

10. The witness identified a copy of her FNPF card which was given to the hotel and it was tendered as evidence, marked exhibit 2. She said three of them brought her dinner and the accused left saying that he has to go for a wedding. The accused had told her that he will come on Saturday morning. She said;
    

"On Saturday morning he came. I said I don't have cloths. He said you do the shopping and they will pay me the money later. He also did shopping and bought lot of cloths and told me to pay for that too. He said he will pay back all the money on Monday. I paid about 637 something. I paid only 60 dollars for my clothes. Same time he asked me to withdraw some more money for him"

11. She said two withdrawals of 500 dollars were made on the 1st May 2010 for the use of the accused. She said all the other payments and withdrawals were made at Meenoos shop. The bank statement produced by the prosecution shows that altogether 1702.70 dollars have been withdrawn at Meenoos Shop itself. The witness said that in total 3640 dollars was withdrawn to give the accused to pay for his shopping.
    
12. The complainant said that the accused did not come back on Sunday. She had complained about this to the receptionist of the hotel and had gone back to Suva. Having failed to contact the accused on Monday she reported the matter to the Police. She said "I did not get the job I was promised".
    
13. The accused did not cross examine the complainant. When he was explained his right to cross examine he said that he has no questions to ask and said; "I am ready to take any thing the court impose."
    
14. The prosecution called the receptionist of the Cathy Hotel, Saleshini Devi. She corroborated the evidence of the complainant. She said on the 30th April 2010 the complainant and three others came to her hotel. She identified the accused as a person who came with the complainant. She said that the accused came in and out several times. The witness said on Sunday the complainant informed her that she is waiting for her boss. She further said;
    

"I met Bijay Wati on Sunday. I asked for her to pay for the room. She said that she is waiting for her boss. I gave her sometime. She was calling on mobile. She said he does not pick up. She tried from my phone too. Still no reply. It was 12 pm. I checked her put. I did not get the payment. She said she does not have money."

15. The witness Shaleshini Devi identified the exhibit 2 as the photo copy she made from the complainant's FNPF card. She said later she gave a statement to the Police and identified the accused at an identification parade. The accused did not cross examine the witness.
    
16. The prosecution called the officer who arrested the accused. Corporal 2848 Rajnesh Prasad said that on the 4th May 2010 he was informed that a false pretender is traveling in a vehicle registration No DU 444 towards Rakiraki. He said he was given the name of that person as Atil Sharma. He said he has seen him several times before. He said he went with another three officers and intercepted the vehicle and stopped it. He said Atil Sharma was driving it and when he approached the vehicle he drew off the car at a very high speed. They have followed the vehicle and found it gone off the road in a drain with the engine still on. Atil Sharma was running away and the Police officers have chased him and arrested. The Police witness identified the accused as Atil Sharma. The accused did not cross examine this witness and informed court that he will remain silent.
    
17. The prosecution called one ASP Iserili Vana to give evidence regarding a photo identification parade. He said that on the 5th July 2010 he conducted the photo ID parade. He said a witness identified the photo of the accused out of ten photos, as the person who came to their hotel on the 30th April. However it should be noted that the evidential value of this ID parade is eroded as the ID parade was held after two months the accused was arrested. Then the accused was in custody and was appearing in court. Besides the witness did not say the name of the witness who identified the picture of the accused at the ID parade. I believe if the court relies on this evidence it would cause prejudice to the accused. Thus I decide to disregard the evidence of ASP Iserili Vana.
    
18. According to the complainant's evidence she first met the accused on the 30th April 2010. However according the prosecution evidence several transactions have taken place on the 01st of May 2010 as well. According to the charge the alleged offence is committed on the 30th April 2010. But it appears that this alleged incident was continuing to the 01st of May 2010 as well. This was further corroborated by the bank statement produced as evidence and by the evidence of the receptionist of Cathy Hotel. However it has to be considered whether the variance between the charge and the evidence with regard to the date could cause any prejudice to the accused.
    
19. Section 182(3) reads as follows;
    

"Variance between the charge and the evidence produced in support of it with respect to-

(a) the date or time at which the alleged offence was committed or

(b) the description, value or ownership of any property or thing the subject of the charge,-

is not material and the charge need not be amended for such variation."

20. Thus it is clear that the charge need not be amended as the alleged offence was continuing to the following day. It appears that in all circumstances it's the same transaction which runs in to the 01st May 2010. I am of the view that the accused is not misled or deceived by the variance of the charge in relation to the date and the evidence adduced. I decide that although the charge mentions 30th April 2010, the evidence produced in relation to the alleged incident which expands to the 1st of May 2010 is also relevant to this case. Further the prosecution produced evidence that the whole transaction took place in Lautoka.
    
21. The complainant positively identified the accused as the person who took money from her. The evidence revealed that she was closely associating the accused over a period of two days. The complainant first saw the accused on the 30th April and she gave evidence on the 9th August 2010. She identified the accused within a short period of three months since she saw the accused last. I am satisfied that the complainant identified the accused without any difficulty or doubt. Further the receptionist of the Cathy Hotel too identified the accused as the person who came to her hotel on the 30th April with the complainant. She said the complainant didn't have money to pay for the Hotel and I am convinced as to how she could remember the accused and the complainant in those circumstances. I am satisfied that the prosecution proved the identity of the accused beyond reasonable doubt.
    
22. Section 316 of the Crimes Decree stipulates that deception means an intentional or reckless deception, whether by words or other conduct, and whether as to fact or as to law, and includes a deception as to intentions of the person using the deception or any other person. The court has to now consider whether the prosecution proved deception.
    
23. The complainant is a 43 year old lady who does not seem to have had much education. She said that she came to Suva from Labasa. Although this story may sometimes appear as an improbable one, it should be noted that the complainant gave evidence in a very convincing and consistent manner. I think at this juncture it would be pertinent to note the demeanor of the accused as well. The accused is a middle aged man blessed with a pleasing personality. He expresses himself in a very convincing and pleasant manner. He greets the court every day and sometimes he didn't even forget to say "God bless you sir". He attires nicely and on the day of the trial he came to court in full suit. He is polite to court unlike most of the accused persons.
    
24. The complainant explained how she was deceived by the accused. Her evidence revealed as to how the accused promised her to give a better job and to reimburse the money he took from her. She said how he pretended like a company director with his so called "drivers". According to the evidence given by the complainant I would not be surprised as to why she did not suspect the accused. She said;
    

"After shopping he put me back to the hotel. He said I will receive the whole money on Monday. Promised me the job and the home. I believed him from the way he said things to me. When I asked from him why he needs money from me, he just said that I will receive the money on Monday."

25. The complainant's evidence regarding the issue of deception was very consistent and I do not have any reason to disbelieve her evidence. It appears that she was deceived by the accused by false promises of giving her a better job and reimbursing the money he obtained from her. I am satisfied that the evidence led by the prosecution clearly reveals the existence of deception right through out the episode.
    
26. The term financial advantage has a broader meaning in relation to fraud cases. In a Tasmanian case, Murphy [1987] Tas R 178 it has been held that the term "financial advantage" includes the obtaining of cash as well as other forms of intangible benefits. According to the evidence of the complainant she spent 3640 dollars altogether. This includes the money obtained by the accused and the money spent for the accused's shopping. Also it includes money she was asked to pay for the hotel on the promise that she will be reimbursed. I am satisfied that the accused obtained financial advantage from the complainant.
    
27. The accused remained silent during the trial. He did not cross examine or try to challenge the evidence of the prosecution. He did not put forward any defence or give any evidence. However even in the absence of any dispute by the accused regarding prosecution evidence, the burden is on the prosecution to prove the ingredients of the offence beyond reasonable doubt. I did not see any contradictions in the prosecution evidence. Specially the complainant's evidence was solidly corroborated by the evidence of the receptionist of the hotel and the bank statement produced as evidence. The evidence produced by the prosecution in this case was cogent, consistent and corroborative. In the circumstances I am satisfied that the prosecution discharged its burden of proof.
    
28. I decide the prosecution proved its case beyond reasonable doubt. I find the accused guilty and convict him for the offence he is charged with.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
17.09.2010