State v Khan [2012] FJMC 239; Criminal Case 680.2010 (10 April 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 680/10

BETWEEN

THE STATE

AND

MOHAMMED ILIYAZ KHAN

JUDGEMENT

1. The accused is charged with one count for larceny by servant for the period from 31st January 2008 to 31st January 2010 and another count of theft for the period from 1st February 2010 to 9th September 2010. The statements of offences and the particulars of offences are as follows;
   

First count

Statement of offence

Larceny by servant contrary to Section 274(a)(i) of the Penal Code.

Particulars of offence

Mohammed Iliaz Khan between the 31st day of January 2008 and 31st day of January 2010 at Lautoka in the Western Division being employed as a Manager by City Spares stole assorted motor vehicle parts valued at $ 50,353.51 the property of said City Spares.

Second count

Statement of offence

Theft contrary to Section 291(1) of the Crimes Decree No 44 of 2009.

Particulars of offence

Mohammed Iliaz Khan between the 1st day of February 2010 and 9th day of September 2010 at Lautoka in the Western Division dishonestly appropriated assorted motor vehicle parts valued $21,015.27 belonging to City Spares with the intention of permanently depriving the said City Spares.

2. The case was taken up for hearing on the 29th August 2011. The Prosecution called 10 witnesses. After the case for the Prosecution was closed the Court held that there is a case for the Accused to reply. The Accused opted to remain silent.
   
3. Section 274(a)(i) of the Penal Code reads as follows;
   

"Any person who being a clerk or servant or person employed in the capacity of a clerk or servant steals any chattel, money or valuable security belonging to or in the possession or power of his master or employer is guilty of a felony, and is liable to imprisonment for fourteen years."

4. Section 291(1) of the Crimes Decree reads as follows;
   

"A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property."

5. Section 259 of the penal Code speaks of theft as follows;
   

259.-(1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:

Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner.

(2) (a) The expression "takes" includes obtaining the possession-

(i) by any trick;
(ii) by intimidation;
(iii) under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained; or
(iv) by finding, where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps.

(b) The expression "carries away" includes any removal of anything from the place which it occupies, but in the case of a thing attached, only if it has been completely detached.

(c) The expression "owner" includes any part owner, or person having possession or control of, or a special property in, anything capable of being stolen.

6. The elements of larceny can be summarized as follows;
   
   1. the taking and carrying off, resulting in a change of possession
   2. removal without the consent of the owner
   3. property capable of being stolen
   4. the intent to deprive permanently
   5. without a claim of right made in good faith
   6. fraudulently
      
7. The Accused has been charged for purportedly stealing items during the period of 31st January 2008 to 9th September 2010. The Prosecution divided this period and brought up two charges for larceny by servants and for theft as the offence of larceny by servant was substituted by theft after the introduction of the Crimes Decree which came into force on the 1st February 2010 by Gazette no 4 dated Monday 1st February 2010.
   
8. It is clearly evident that although the Accused is charged with two counts for two different periods, the basis of the two charges is stealing assorted motor spare parts. Thus as far as the two counts are concerned the prosecution has to prove beyond reasonable doubt that the Accused stole assorted motor spare parts.
   
9. I have considered the evidence produced by the Prosecution. According to the Prosecution evidence the Accused was employed by a Motor spare parts shop named City Spares. The Accused was the manager of the said spare parts shop during the period relevant to this case. It was revealed that an audit was done in 2010 and it was found out that $ 71, 368.78 worth of spare parts stocks had been taken by manipulation of stock cards. Accordingly it was reported to the Police and the Accused was charged for stealing assorted spare parts all to the total value of $ 71,368.78 during the said period.
   
10. The Prosecution tendered 826 stock cards as Prosecution Exhibits pertaining to 826 varieties of spare parts. The evidence of the Prosecution was that all those stock cards were falsified by entering wrong receipt numbers. The Prosecution witnesses gave evidence that the false entries on the said stock cards are the hand writings of the Accused. Furthermore the Prosecution produced evidence that there were frequent cash deposits into the bank accounts which belonged to the Accused.
    
11. However there was no evidence produced by the Prosecution to show that the accused in fact took any spare parts. The whole Prosecution case was all about falsifying stock cards by entering false details. The elements of larceny by servant or theft were not touched by the Prosecution. It should be noted that for the offence of larceny there should be an act of taking or carrying of resulting change of possession of a particular property which is capable of being stolen. Similarly for the offence of theft the Prosecution has to prove that the Accused dishonestly appropriated the property. There was no evidence to establish theses elements and no witness said that the Accused stole spare parts valued at $ 71,368.78.
    
12. On the other hand the Court cannot assume that the Accused took the items by falsifying the stock cards. There were Prosecution witnesses who worked with the Accused at the same spare parts shop during the periods pertaining to this case. However none of them did say that the accused took the spare parts or effected any change of possession of the missing stocks of spare parts.
    
13. It was held in Peter Jackson Pty Ltd v Consolidated Insurance (Aust) Ltd [1975] VicRp 47; [1975] VR 480 that where the servant has custody of property, larceny as a servant is only committed when there is some movement of the property by the servant involving a departure from the employer's instructions.
    
14. In the instant case the Accused is charged for stealing assorted motor spare parts. He is not even charged for stealing money or for falsification of accounts. There was no evidence whatsoever to incriminate the accused for stealing motor spare parts. Although the property had been in the custody of the Accused as the Manager of the said spare parts shop during the time pertaining to this case, there was no evidence to prove any movement of the property by the Accused.
    
15. It should be noted that in a criminal case the test is beyond reasonable doubt. The Prosecution can either produce direct or circumstantial evidence to prove a charge. However in the absence of direct or circumstantial evidence to prove the elements of an offence, the Court cannot assume the missing links and convict an Accused person. It is the duty of the Prosecution to prove the elements of the offences the Accused is charged with beyond reasonable doubt. Although the prosecution was able to prove that the stock cards had been tampered with by entering false entries I must say that it is not sufficient to constitute the offences of larceny and theft.
    
16. For the foregoing reasons I decide that the Prosecution could not prove the first and the second counts beyond reasonable doubt. Accordingly I acquit the Accused from the first and the second counts.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

10.04.2012