State v Raju [2011] FJMC 119; Criminal Case 1399.2007 (17 October 2011)

IN THE FIRST CLASS MAGISTRATES COURT
WESTERN DIVISION AT NADI

CRIMINAL CASE NO. 1399/07

STATE

v.

MANJULA WATI RAJU

Ms. Ilisapeci Whippy for state
Mr. Maopa for accused
Date of Judgment: 17.10.2011

JUDGMENT

[1] The accused was charged as follows:

The Charge

The accused is charged under the Penal Code Cap 17 as follows:

STATEMENT OF OFFENCE

CONVERSION: Contrary to Section 279(1) (a) of the Penal Code Cap 17.

PARTICULARS OF OFFENCE

MANJULA WATI RAJU between the 2nd day of March 2007 and the 31st of July 2007 at Nadi in the Western Division fraudulently converted to her own use and benefit the sum of FJD $59,000.00 which was entrusted to her by her brother ELVIS MAHENDRA for the payment of a house.

[2] The prosecution filed original information on 4 October 2010. However, the amended charge was filed on 31 March 2011. The amended charge was allowed by court as there was no objection by defence.

[3] At trial,the prosecution called five (5) witnesses. The complainant (Elvis Mahendra), two bank officers (Timaima Daulako and Peceli Raulle) and two police officers (Satendra Kumar and DC Arvind) gave evidence for the state. The state closed its case and the Court ruled there was a case to answer. The accused offered no evidence and silence.

PROSECUTION EVIDENCE:

[4] The complainant (PW1) gave evidence for state. He in evidence in chief stated as follows:-

"I live in Australia. I am citizen of Australia. I came back to Fiji on Sunday. I am a hospital attendant at government hospital. I was High School principal here before. That was in February 2007. I saw an advertisement for sale of a unit at Natabua for $5000.00. I was suspicious. I told my sister (accused) to verify the condition of the unit and the price. I don't know whether she checked or not but rang me and said it was not good. She asked why I wanted to buy a unit in Fiji. I told her when I retire I want to come and stay here. Then she asked how much I wanted to spend. I told her I didn't want to spend much money but about $60,000.00. In February, she rang me and said she has found a 3 bedroom house for $59,000.00 and somebody wanted to buy for $60,000.00 within one week. I asked her whether she has seen the house. She said 'yes, it's a beautiful house'. I asked her whether she has spoken to the owner and then she said she has spoken to the owner and he is ready to sell for $60,000.00. I said there is no way I will be coming to Fiji with the money. I asked if I could send the money by cheque. These conversations were on telephone. I heard in the background her husband telling ask your brother to send money by T.T. I told her I don't know very much about T.T. and I will go to my bank and let her know. Bank advised me I can transfer the money by T.T. and the money will reach within 48 hours. I collected all the detail and sent the money to her account. I told her I am sanding the money on transit and you must deposit the money in solicitors account and I must be able to draw the money when I come to Fiji. My sister rang me and told the house I wanted to buy has been sold. My sister is in court today. I asked her whether the money has reached. She said yes. On 20/02/2007 I received this call. Then I asked her to give the telephone number of the owner so that I could speak. She said she didn't have telephone number. All this happened within a week. How can owner sell this? Then I said I can't get leave to come to Fiji to collect the money and told her to deposit the money to a fix deposit account. She didn't put the money into my account but she had taken the money. She has deposited the money into her account. 31/07/07 I rang my sister and told her I am coming to Fiji on 01/08/07 to collect the money and prepare a cheque for the amount since it is a big amount. Then she replied what the money you are talking about. Did you send the money what's the proof you have. I got this money from my mortgage account in Australia. Bank statement was shown and identified by the witness. The witness' attention was drawn to the transaction of 13/02/2007 (Exh-1).

I have T.T. receipt. The beneficiary is Wati. Her bank account is with Westpac. (Telegraphic Receipt was marked as Exh-2). I inquired with my bank ANZ. They said the money has been reached the beneficiary. I got conformation letter. Manjula Wati is in Court. Accused pointed out the accused. Accused did not pay any effort to pay the amount until today. The house was not bought on my behalf. She has converted the money into her own use".

[5] PW1 under cross examination confirmed that he told the accused to deposit the money into a solicitor's account, whoever the solicitor the owner tells. He admitted that he did not tell this to police. He said 'no' when asked whether accused told that she has credited for loan repayment. He also denied accused telling that that she will return the money after the house was sold. He further told that he transferred the money to the accused's account at Westpec Bank, Nadi Brach with a message "loan repayment" PW1 also confirmed that he told the accused to put the money into a fixed account but she has put the money into her account.

[6] In Re-Examination PW1 stated that he didn't say to accused to settle any loan repayment and he did not tell accused to use the money any other way.

[7] PW2, Westpac Bank officer also gave evidence for the state and sated in evidence in chief as follows:-

"My role is now Customer Service Manager. I know Manjula Wati. On 02.03.2007 she was coming with her husband. They came to open an account. 02/03/2007 there was a withdrawal. It's separate account. She withdrew $50,000.00 on that day and put it into joint account. Wati's personal account number is 9800592090 and new account number is 9801458028. On 14.02.2007 she received an inward T.T. for $60,000.00 from overseas to Westpac (TT Exh-3). On 02/03/2007 M. Wati deposited $59,000.00 in this account-Joint Account (Bank Statement marked as Exh-5) I checked this account this morning this account has been closed. Both accounts have nil balance (Document marked Exh-6)".

[8] Under Cross Examination PW2 confirmed that the Inward TT carries a message 'loan repayment.

[9] In Re-Examination PW2 told that the message would mean anything what the sender meant.

[10] Next PW3, a Bank Officer with Westpac testified as follow:-

"In 2007 I was put of credit unit. On 18/09/2007 placed a search into account of M. wati. I do internal and external investigation now. She received $59,985.00 from abroad on 14/02/2007. On 02/03/2007 there was a withdrawal from the account. The same day it was deposited into account of M. Wati & Raju-joint account. This money came with the message of loan repayment. The sender has put the message she/he can mean anything".

[11] Under Cross Examination PW3 told that though there was a narrative of loan repayment it not necessarily loan payment. That's a narrative. It may mean loan payment.

[12] PW3 was not Re-Examined.

[13] PW4 Setendra Kumar PC, he is an Investigating Officer and Interviewing Officer in this case. He in Examination in Chief told that he investigated the matter and caution interviewed the accused in Hindi language. He said accused's husband was present during the caution interview. Transcript of the interview was tendered without objection. Record of Interview and its translation were marked as Exh-8 and Exh-9 respectively. (He read Q45 and Q58 and their answers).

[14] Under Cross Examination PW4 told the accused husband was present during caution interview. He also read Q53, Q54 and Q57 of the caution interview.

[15] Re Examination PW4 told that 'Accused told me she used the money for the car and renovation of the house'.

[16] The last witness for the state was PW 5. He was a charging officer. He tendered the charging statement marked as Exh-10 without objection. PW5 was neither cross examined nor re-examined.

[17] The accused offered no evidence. She opted to remain silent. The accused filed written submissions and stated that prosecution has failed to prove the charge beyond reasonable doubt.

ANALYSIS

[18] I note that the burden is the state to prove the charge beyond reasonable doubt. The need not prove her innocence, as she is presumed innocent until otherwise proved.

[19] The accused is charged with one count of conversion contrary to section 279 (1) (a) of the Penal Code. The state alleged that the accused fraudulently converted to her own use and benefit the sum of $FJD $59,000.00 which was entrusted to her by her brother, the complainant for the payment of a house.

[20] To establish a charge of fraudulent conversion the prosecution shall prove the following elements, namely:-

(a) That the money was entrusted to the accused person for a particular purpose;
(b) That s/he used it for other purpose;
(c) That the misuse of money was fraudulent and dishonest.

[21] The PW1 told court that he sent the money (AUSD $46,916.65- FJD $ 59,000.00) through TT from Australia to the accused account at Westpac in Fiji, Nadi Branch. The complainant's Statement of Account for February 2007 (Exh-1) confirms that he has transferred AUSD $46,916.65 on 13 February 2007. The complainant sent the money to the accused's account for the purchase of a house in Lautoka. Later the accused informed the complainant that the house was sold. The complainant informed the accused to deposit the money into a fixed account as he cannot come to Fiji to get the money. The accused is the complainant's sister. When the complainant enquired about purchasing a house in Lautoka the accused told him she can buy one and talked to the owner. Then the complainant sent the money to the accused's account. Sometimes later the accused informed the complainant that the owner of the house is not willing to sell the house. The complainant asked the contact number the owner but the accused said that she did not have any contact number. Later the complainant told the accused to deposit the money into a fixed account. Instead she withdrew the money and deposited into her joint account with her husband. It is evident that the complainant sent the money to buy a house in Fiji to come settle when he retires hence the money was entrusted to the accused for that purpose. Therefore the element of entrustment has been met.

[22] It was not a dispute that the accused received the sum of FJD $59,000.00 from the complainant. PW2 and PW3, the bank officers with Westpac in their evidence confirmed that the accused withdrew the money from her personal account on 02.03.2007 and deposited the money into her joint account with her husband the same day. They also proved these transactions by tendering documents marked Exh-1-Exh-7. PW2 and PW3 in Re-Examination stated that the message of loan repayment in the inward TT would mean anything what the sender meant. PW2 and PW3 cannot say how the money was used by the accused after withdrawal.

[23] The complainant told the accused that he is sending money to her account. This money was sent to purchase a house in Fiji. When the accused informed the complainant that the owner of the house not willing to sell the house he told the accused to deposit the money into a fixed account. She did not do this. Instead, she deposited the money into her personal account and withdrew the money and deposited into her join account with her husband and used the money to renovate her house. Re Examination PW4 told that 'Accused told me she used the money for the car and renovation of the house'. The complainant stated in evidence that he sent the money to accused for the purchase of a house in Lautoka for him to reside when he retires. He strongly denied that he sent the money for loan repayment.

[24] The accused did not even give the contact number of the house owner for him to contact when the purchase of the house failed. The accused used the money for her own purpose which was not allowed by the complainant hence the accused misused the money that was entrusted to her. Therefore there is evidence to show that the accused used the money for other purpose and thereby misused the money fraudulently and dishonestly.

[25] I therefore find that the prosecution has proved each element of the charge beyond reasonable doubts.

[26] For the foregoing reasons I find the accused guilty as charged and convict accordingly.

M H Mohamed Ajmeer
Resident Magistrate
17.10.2011