State v Verma [2013] FJMC 163; Criminal Case 1699.2010 (11 April 2013)

IN THE MAGISTRATE'S COURT
AT SUVA

Criminal Case No. 1699/2010

STATE

–v-

SANJAY SINGH VERMA

Prosecution : Ms. Fatiaki for the DPP
Accused : Mr. Nandan S. with Mr. Chand A. for the Defense

On 11th Day of April 2013

RULING ON NO CASE TO ANSWER

1. The accused is being charged for committing the offences of "Forgery" contrary to section 341 (1) of the Penal Code and "Uttering Forged Documents" contrary to section 343 of the Penal Code. The Particulars of Offences state as follows:
   

COUNT # 01

SANJAY SINGH VERMA, on the 10th day of July 2008 at Suva in the Central Division, with intent to defraud forged the signature of AMIT PRASAD on the Tax Invoice Number 0343 purporting the same to be genuine.

COUNT # 02

SANJAY SINGH VERMA, on the 10th day of July 2008 at Suva in the Central Division, knowingly and fraudulently uttered a forged Tax Invoice Number 0343 at the Small Claims Tribunal, Suva.

2. At the end of the case of the prosecution, the learned counsel for the accused made an application for "No case to Answer". Apart from the oral submissions, it was supported by a comprehensive written submission as well.
   
3. On behalf of the accused, it was averred that the case of the prosecution had not proved the essential elements of the two charges as expected by the law. In respect of the first count of Forgery, the learned counsel submitted that there is no evidence presented before court to say that it was the accused who committed the alleged offence, namely, placing the signature in issue on Invoice No: 0343. He said that all the prosecution witnesses including the Investigating officer got identified the accused as Sanjay Singh Verma and not as the person who placed the signature on the Invoice. Further, the learned counsel argues that no expert opinion is sought to verify the specimen signatures and the hand writings of the accused. His contention is that there is no "positive identification" as far as the perpetrator is concerned.
   
4. Defense disputes the date of the alleged offence saying that there is no evidence to say that the offence took place on that date. The learned counsel stated that the prosecution relied on the said date, 10th of July 2008, simply because that is the date reflected in the Invoice in issue. The 3rd element defense identified in the charge was "intent to defraud". Counsel said that there is no admission by the accused to that effect and Mr. Riteshwar Lal's evidence supports the defense case theory. He contended that the evidence of Mr. Cakacaka and Mr. Amit Prasad are contradictory inter se and per se and therefore the court cannot place any reliance on them. When it comes to the "Actus reus", counsel said that when Mr. Prasad said that he didn't sign the Invoice that does not mean it was signed by the accused and Mr. Lal confirmed that it was signed by Mr. Prasad. Counsel stressed that the evidence of Mr. Lal is very consistent and did not deviate from consistency as of Mr. Cakacaka or Mr. Prasad.
   
5. While addressing on the 2nd count, the learned counsel submitted that if the prosecution fails in proving the "Forgery" charge, the 2nd count of "Uttering Forged Document" will automatically fall. He insisted that the date in the charge should be the date on which the document was uttered to the SCT and not the date the Invoice reflects. The counsel drew the attention of the court to the facts that the two Affidavits filed at the Magistrate's Court by Mr. Cakacaka and the way police reacted in charging the accused even before they accrue any evidence against the accused. He concluded that there is no enough evidence presented by the Prosecution to call for a defense. Going a step further, the learned counsel said that these charges shouldn't have made at all, at least, on the collected evidence alone.
   
6. The response of the prosecution to such a lengthy and legal submission was rather passive, if not lethargic. The learned Prosecutor informed court that the Prosecution is simply relying on the evidence placed before court.
   
7. In this background I proceed to consider the legal framework of the application for "No case to Answer". Section 178 of the Criminal Procedure Decree says:
   

(178) Acquittal of accused person where no case to answer:

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defense, the court shall dismiss the case and shall acquit the accused. (Emphasis added)

8. In the light of the above, it is worth to note what reflects in section 231 (1) of the Criminal Procedure Decree – 2009 as that seems to be the corresponding section which guides the procedure in the High Court in a situation of 'NO CASE TO ANSWER'.
   

" When the evidence of the witnesses of the prosecution has been concluded, and after hearing (if necessary) any arguments which the prosecution or the defense may desire to submit, the court shall record a finding of not guilty if it considers that there is no evidence that the accused person ( or any one of several accused) committed the offence." (Emphasis added)

9. Section 293 (1) of the old Criminal Procedure Code also substantially denotes the same contention of section 231 (1) of the present Decree as to the most important portion of "no evidence".
   
10. When section 178 speaks of 'a case is not made out' against the accused, section 231(1) speaks of 'no evidence'. Therefore, it is quite evident that both the sections do speak of a situation where there is no evidence to substantiate the case of the prosecution at its end. In this context, the analysis in respect of sections 293(1) ( Criminal Procedure Code) and 231(1) (Criminal Procedure Decree) done by the higher courts can be taken into consideration as guidelines in determining the issue of 'no case to answer', though it is been raised in the Magistrate's court.
    
11. His Lordship Justice Gates, as he was then, in State vs Tieri Raitini and two others (Criminal Action HAC005.03S, Dated 20th October 2003) noted that,
    

" There is no perceptible difference between the two tests; that is between whether the court considers there is 'no evidence', the High Court test [section 298] and that for the Magistrate's Courts ' a case is not made out.... Sufficiently...' [section 210 CPC]. ... [emphasis added]

12. In State vs Semesi Wainiqolo (HAC 015 of 2004 S), His Lordship Justice Gates, as he was then, elaborated this issue in this manner.
    

" In order that section 293 of the Criminal Procedure Code be satisfied there must be available for consideration by the assessors, evidence which is to be considered as more than " no evidence" in the sense no evidence that it was the accused who had committed the offence."

13. His Lordship Justice Priyantha Nawana in FICAC vs Sunil Kumar ( HAC 181 of 2008) held that,
    

" The credibility and the weight of the evidence indisputably can be considered only after all the evidence including that of the accused is led; and, that stage is yet to come. The test, referred to above, therefore pertains only to the issue of existence of evidence to satisfy all the elements of the offence so as to enable court to proceed with after the case for the prosecution is closed."

In reaching to this conclusion, Justice Nawana, got the assistance of the view formulated by His Lordship Justice Goundar in FICAC vs Rajendra Kumar and Jaswant Kumar ( HAC 001/2009 decided on 11th of February 2010).

14. His Lordship Justice Goundar, in the above case held that,
    

" The test is that there must be some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence. The credibility, reliability and weight of the evidence are matters for the assessors."

The same stand was taken by Justice Goundar in State v Simon John Macartney (Criminal Case # HAC 175 of 2007) by saying;

" The question for me is whether there is some relevant and admissible evidence, direct or circumstantial, touching on all the elements of alleged murder."

15. In Macartney's case, Justice Goundar cited the following portion of the case of State v George Shiu Raj & Shashi Shalendra Pal ( AAU 0081 of 2005 S, decided on 01st July 2006) in agreement with the view of the three bench panel of the Court of Appeal.
    

"..while there may be extreme cases where evidence could be so classed for example if it is arrant nonsense or manifestly contrary to reason and therefore warranting the application of s.293(1), such a qualification cannot be used to extend the enquiry into an overall assessment of reliability or credibility." (paragraph 11)

16. As cited by His Lordships of the Court of Appeal in Moidean v Reginam (Criminal Appeal # 41 of 1976), the Practice note, issued by the Queen's Bench Division in England, which is reported in [1962] 1 All. E. R. page 448 discusses about two points where the application for a 'no case to answer' can be entertained.
    

# When there is no evidence to prove an essential element of the offence concerned and

# When the evidence adduced by the prosecution is so discredited or is so manifestly unreliable that no reasonable tribunal could rule the accused a convict.

Their Lordships, referring to matter in hand in Moidean, said;

" Instead of adopting this procedure the learned Magistrate, wrongly in our opinion, did treat the matter as if he was compelled at that stage to decide whether to acquit or convict, and therefore gave reasons for not accepting the evidence of witnesses whose testimony, if believed would, as the learned

Magistrate himself said, undoubtedly have established a case to answer."

17. Her Ladyship Madam Justice Shameem in the case of Abdul Gani Sahib v The State [2005] FJHC 95; HAA0022J.2005S (28th April 2005) made following observations.
    

"In the Magistrate's Courts, both tests apply. So the magistrate must ask himself or herself firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence, and second whether on the prosecution case, taken at its highest, a reasonable tribunal could convict. In considering the prosecution case at its highest, there can be no doubt at all that where the evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a submission of no case to answer. However, where a possible view of the evidence might lead the court to convict, the case should proceed to the defense case."

18. As His Lordship Justice Goundar has observed in The State v Abdul Aiyaz s/o Abdul Gafoor (HAC 33 of 2008), the Galbraith guidelines were expressly rejected by the Court of Appeal of Fiji Islands in Sisa Kilisoqo v Reginam ( Criminal Appeal # 52 of 1984) as the specific area of law is not governed by any statute in England. (paragraph 08) It was approved by the Court of Appeal in Fiji Islands in State v Mosese Tuisawau (Criminal Appeal # 14 of 1990) that if there is some direct or circumstantial evidence on the charged offence, then a judge cannot say there is no evidence on the proper construction of section 293(1).
    
19. His Lordship Justice John Connors stated in State vs Sudesh Jeet (Criminal Case # 21 of 1998) that it is not appropriate to apply the corroboration caution at the stage of 'no case to answer'.
    
20. Taking into account the above mentioned legal guidelines, the task of this court is to decide whether there is some relevant and admissible evidence, may it be direct or circumstantial, touching on all the necessary elements of the said offence of 'Forgery' implicating the accused with the offence. As stated earlier, though the accused is been charged with one count of "Forgery" and one count of "Uttering Forged Documents", it is obvious, that, if the first count of "Forgery" fails, the second count will face a natural death. Thus, now it is the duty of the court to see whether the already led evidence by the Prosecution crosses the threshold with some relevant and admissible evidence touching on all the necessary elements of 'Forgery'.
    
21. The 1st count contrary to section 241(1) of the Penal Code comprises following elements to be proved by the prosecution in bringing home a successful prosecution:-
    
    • The accused
    • With intent to defraud
    • Forged the signature of Amit Prasad on Tax Invoice No: 0343
    • Purporting the Tax Invoice to be genuine
      

22. The 2nd count contrary to section 343 of the Penal Code contains following elements;

• The accused
• Knowingly and fraudulently
• Uttered the Tax Invoice No: 0343
• At the Small Claims Tribunal, Suva
  

23. The essence of the so far led evidence can be summarized as follows. It is agreed upon by both parties that the accused filed a claim against Mr. Cakacaka at the SCT based on the Tax Invoice No. 0343 of Mr. Amit Prasad's Company. It was undisputed by the accused that all the handwriting contained in the said Invoice was written by him except the 'signature' on it. Mr. Amit Prasad, the person who was alleged to have signed the Invoice vehemently denied him placing his signature on the said Invoice. His contention is that neither the handwriting nor the 'signature' was of him.
    
24. In contrary, Mr. Lal, who was alleged to have worked for Mr. Prasad during the period in issue says that he saw the accused writing on the Invoice (as Mr. Prasad was not that educated) and Mr. Prasad placing his signature on the Invoice. This is a marked drastic difference when compared to Mr. Prasad's testimony. The learned Prosecutor didn't have a single question to ask from Mr. Lal and his testimony went on record almost undisputed, if not admitted.
    
25. As the testimonies of Mr. Prasad and Mr. Lal were two sides of a coin, distinctly different, the court thought it would be more practical and logical to peruse the Original Tax Invoice Book, with the main intention to see the Carbon Copy of Tax Invoice No. 0343. The initiative of the court was not objected by the Defense and the Prosecution co-operated in full by providing the original Tax Invoice Book without any delay. The Invoice Book is said to have been kept in Police custody throughout this period. The observation on the carbon copy of Invoice No. 0343 was rather interesting.
    
26. All the handwriting that the accused alleged to have made on the first copy of the Invoice was reflected on the carbon copy as well. But, the purported 'signature' is notably missing from the carbon copy. As the learned Defense Counsel quite rightly submitted that the entire case rotates around the nucleus of this 'signature' on the Invoice No. 0343. Now, at this juncture there are two conflicting versions, about this signature, one is favorable to the Prosecution while the other supports the case theory of the Defense.
    
27. The Court has not decided yet as to whose testimony is to be accepted, trusted and relied upon. All what appears on the face of the hearing proceedings is that the Prosecution has managed to tender evidence to Court which is capable of negating the proposition that 'there is no evidence against the accused on any element of the two charges'. So far led evidence has managed to touch all the necessary and essential elements of the two charges and reflect 'some evidence' to each and every element. When it is 'some evidence', it has to be borne in mind that it can be either direct or circumstantial. Further, it is still premature to determine whose evidence is untrustworthy or unreliable. On the other hand, one should not forget the fact that it is fully agreed by the accused that he filled the Invoice No: 0343 and uttered the same to the SCT.
    
28. This court is not prepared to analyze the evidence in toto led against the accused person at this juncture as this is not the time to reach a final decision in this case or to decide whether the Prosecution has discharged their burden by proving the charges beyond reasonable doubt. All what this court would look at is whether a prima facie case is been made out against the accused to go beyond the periphery of section 178 of the Criminal Procedure Decree or not.
    
29. Considering all the above material, this court concludes that the accused has a case to answer. Therefore Defense is called from the accused and the application to 'no case to answer' is dismissed.
    

Janaka Bandara [Mr]
Resident Magistrate, Suva