State v Khan [2015] FJMC 47; Criminal Case 1624.2009 (16 April 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case : - 1624/2009

STATE

V

ASLEEM KHAN

Counsel : Ms. J.Prasad for the State
Ms.P.Preetika for the Accused
Date of Ruling : 16th April 2015

RULING ON NO CASE TO ANSWER

1. The accused has been charged with one count of Larceny by Servant, 11 counts of Forgery, 11 counts of uttering a forged document and 11 counts of obtaining money on forged documents under various provisions of the Penal Code.
   
2. At the conclusion of the prosecution case the learned counsel for the defence made a no case submission and elected to file written submission regarding that. In her comprehensive submission with the relevant case laws the counsel argued that there are no evidence to show that the accused withdraw these amounts from the account or he forged any documents or used them . Therefore she submitted her client should be acquitted from this charge.
   
3. Section 178 of the Criminal Procedure Decree is relevant with regard to this application. That section states that “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 defence, the court shall dismiss the case and shall acquit the accused”.
   
4. A practical note issued by the Queen’s Bench Division held that :
   

“A submission that there is no case to answer may be properly made and upheld :When there has been no evidence to prove an essential element in the alleged offence

1. When the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it
   

5. In Fiji the position with regard to no case submission was discussed in a number of cases. His Lordship Justice Grant in R v Jai Chand 18 FLR 101 at page 103 stated that:-“..... the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution case, the court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the trial. But the question does not solely depend on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused to his defense. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence”.
   
6. In State V Aiyaz [2009] FJHC 186 his Lordship Justice Goundar held that :
   

“ The test for no case to answer in the Magistrates’ Court under section 210 is adopted from the Practice Direction, issued by the Queen’s Bench Division in England and reported in [1962] 1 All E.R 448 (Moiden v R (1976) 27 FLR 206). There are two limbs to the test under section 210:

[i] Whether there is no evidence to prove an essential element of the charged offence;

[ii] Whether the prosecution evidence has been so discredited or is so manifestly unreliable that no reasonable tribunal could convict.

An accused can rely on either limb of the test under section 210 to make an application for no case to answer in the Magistrates' Court."

7. Having considered the applicable law I would now summarise the evidence presented by the State. The prosecution called 02 bank officers and the interviewing officer as witnesses. PW1 (Ms.Chand ) said in 2009 the accused was working as a teller officer in Colonial bank and based on a complaint made by one Sangeeta Devi the bank found that there were some withdrawal slips regarding those transactions . The slips contained the signature of the accused as well as the teller code stamp which he was using at that time . The accused was investigated about the allegations by the bank . She also identified the withdraw slips and the signature of the accused in them.
   
8. PW2 ( Ms.Jeniffer) said in 2009 she was the assistant branch manager at Dominon House Brach and the accused worked as a teller there. The bank account No 6968769 belonged to one Rahul Prasad and the Sangeeta Devi was the sole trustee of that account and she has authority to withdraw money from that . One day she came and complained that about some withdrawals made from the account without her knowledge .The witness summoned all the withdrawal slips to investigate. She also identified them as prosecution exhibits 4-15 (withdraw slips and a deposit slip). According to cashier listing at the time of these withdrawals the teller was the accused. She also said on 20/03/2009 there was a deposit slip showing bank received $191.44 to the account of Rahul Prasad but the transaction history reveled cash deposit of only $141.44 was deposited in the account . The handwriting in the deposit slip looked like the accused. PW3 (DC 2836 Lagi ) was the investigating officer and he also conducted the caution interview of the accused on 16/11/2009 which was marked as prosecution exhibit 01. According to the interview apart from denying the deposit of $191.44 (subject of the 1st count) the accused admitted from 15/05/2009 to 1/07/2009 he produced the signature of the Sangeeta Devi and obtained $2690.00 from the account. He admitted he signed the withdrawal slips and withdrew these amounts without the knowledge of the complainant.
   
9. After considering the above evidence I find that the prosecution has produced relevant and admissible evidence at this stage to satisfy all the counts in the charge . Therefore I decide that there is a case against the accused and dismiss this application by the defence .
   

H.S.P.Somaratne
Resident Magistrate, Suva