State v Hassan [2015] FJMC 62; Criminal Case 478.2011 (3 June 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case : 478/2011

STATE

v

MOHAMMED REYAZ HASSAN

Counsel : Mr.R.Kumar for the State
Mr.R.Singh for the Accused

Date of Judgment : 03rd June 2015

JUDGMENT

1. The accused has been charged with 06 counts of Embezzlement contrary to Section 274(a) (11) of the Penal Code, 1 count of Forgery contrary to section 355(1) (c) of the Penal Code, 1 count of Uttering Forged Document contrary to section 343(1) of the Penal Code and 1 count of Obtaining Money by virtue of Forged Document contrary to section 345(a) of the Penal Code.

2. The accused pleaded not guilty for the charge wherefore this proceeded for hearing. During the hearing the prosecution called 10 witnesses whilst the accused gave sworn evidence. Both parties also filed closing submissions.

3. I would first summarize the evidence presented by both parties. PW1 was Bimal Prasad who was an audit manager at Post Fiji in 2008 and prepared an audit report which was marked as PE-01. Audit inspection found out that there was an outstanding payment of $22,876.77 from the accused and also no proper procedure was followed. In addition the report showed that some goods were not returned to the ware house, some of the goods were not invoiced and the goods were sold below the price. In cross- examination the witness said his staff got the invoices and he made the findings based on them.

4. PW2 was Dharmendra Prasad who conducted the audit in 2008 after getting the invoices and matching with the money received to the Post Fiji .His statement to the police was marked as PE-02 without any objection by the defence as the witness said this statement contained the particular invoices and receipts that was subjected to the audit. In cross- examination the witness said he compared these from the accused invoice books and the accused was paying to Post offices. In re- examination the witness again confirmed that the audit revealed the discrepancies per sales conducted by the accused.

5. PW3 was InokeNilumu, a teacher in Muiara School in Naitasiri in 2007 and the accused came to his school with stationeries . PW3 in 3 different occasions paid the accused $900, $1300 and $2300 as payments for the stationeries delivered to his school. The accused issued receipts for these payments.

6. PW4 was EroniKatonisau, who was the school manager at Nailagobokola Primary School in Naitasiri in 2007/2008 and the accused used to deliver goods to his school and collected money from him.

7. PW5 was LitianaVuladromu, who was working as a teacher at Lodoni Primary School and paid $500.00 for the goods delivered by the accused to her school around 2009.

8. PW6 was Rakesh Kumar a team leader Audit at Post Fiji but his evidence was not completed as he passed away prior to continuation of hearing. Since his evidence was not subjected to cross- examination I would not give much weight for this evidence.

9. PW7 was SalaseniMaro, who was working as human Resource Manager at Post Fiji at that time and she said that even though the goods were delivered the cash was not received to the Post Fiji . The accused was responsible for collecting the cash but it was not brought back to Post Fiji. This was discovered after an audit report. After refreshing the memory she said the amount owed is about $17,000 from the accused. In cross- examination the witness said that the accused was given time to collect the balance but he failed to pay this amount back to the Post Fiji .

10. PW8 was JasminNisha, who was working as a typist at Muslim Primary School and in 2008 they purchased goods to the value of $3,549.66 from the accused and handed a cheque as payment to him. It was crossed cheque for Post Fiji and was signed by the President of the school. She also identified the cheque and said there were some amendments made which were not her handwritings. The cheque was marked as PE-03. In cross- examination the witness said that the accused collected the cheque and later Post Fiji called and informed them that they still owe that amount.

11. PW9 was Samad khan who was the president of the school at that time and signed the cheque. He also said after looking at the cheque that the signature on top was not his signature. In cross- examination the witness said it was crossed for post Fiji and in re- examination said there were some amendments made to the cheque.

12. PW10 was Abdul Janif, the treasure of the school and made a cheque for the goods brought from post Fiji. It was a crossed cheque for Post Fiji and they did not write pay cash in that and the top signature was also not his.

13. By consent the caution statement and the charge statement were tendered and marked as PE-04 and PE-05 respectively. The prosecution closed their case after that and the accused was given his rights pursuant to section 179 of the Criminal Procedure Decree and he elected to give evidence.

14. The accused in his evidence said he was employed by Post Fiji as a sales representative from 2006-2008 and used to visit schools, taking orders and supplying goods. He was paid in cash as well as in cheques . Cash was given to the Post Shops and the cheques were delivered to account sections. Cashier at the Post Shops took the cash and gave him receipts. The accused prepared an audit file with the receipts and invoices. Dharmendar and Bimal took the audit file and that was the only copy the accused had. Later whilst he was sick the Post Fiji suspended his service. When the items were refused he used to bring them back to ware house. The accused was not given the opportunity to recover the money or the goods. There are some items still in the schools to be collected. Cash was given to the cashier. The cheque was delivered to the account section. The accused was shocked to learn the cheque was cashed. He was not given a receipt when he delivered the cheque to the account section and he did not do any alteration or cashed the cheque from the bank. He denied all the allegations against him.

15. In cross- examination the accused admitted that he was in the court when Mr.Bimal gave evidence and he through his lawyers keep requesting the audit file from the DPP's office . The Audit report shows that the money was not returned the Post Fiji. The money was given to the post shops by him and in some cases he did not receive receipts as it was busy period. For the $500 collected from Lodoni Primary School he received a receipt and this was attached to his audit file. The accused also admitted receiving money from schools in other occasions as per the charge and giving it to the Post Shops. Also the cheque was handed back to the account section. The defence closed their case after that.

16. In his closing submission the learned state counsel submitted that PW3, PW4, PW5 testified that the money was given to the accused and he also admitted receiving them. PW1, PW2 and PW7 evidence as well as the audit report shows that there was outstanding amount of $17,000 from the accused and therefore this point that the accused has failed to return some amount. As for the cheque the prosecution has proved that this was given to the accused and PE-02 reveled that this amount was not received by Post Fiji. The witnesses called by the prosecution confirmed that this cheque was altered without their knowledge and the court can draw inference that this happened whilst it was in the possession of the accused. Therefore the state further submitted that based on the testimonies as well as documentary evidence they have managed to prove this charge beyond reasonable doubt against the accused.

17. In his submission the counsel for the accused argued that the prosecution has failed to prove that the monies referred in Counts 1-6 were not paid to the Post Fiji and there was no evidence to show also that the accused forged the cheque and produced in the Westpac Bank and got the money. Therefore the defence submitted that the prosecution has failed to prove this charge beyond reasonable doubt and the court has to acquit the accused from this case.

18. Having considered the evidence in the above manner now I would consider the applicable law in this case.

19. In Woolmington v DPP [1935] AC 462 it was held that:

"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained" (per Viscount Sankey L.C. at pp. 481-482).

20. In State v Darshani [2006] FJHC 24; HAC0007S.2005 (26 January 2006) in the summing up his Lordship Justice Gates (as he then was) defined burden placed on the prosecution in the following manner and this is relevant for this case also.

"The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an accused which is enshrined in the Constitution. The State brings the charge against the accused. Therefore it is for the State to prove the charge against the accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused. In summary, the Accused does not have to prove anything.

The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that the Accused is guilty of the charge you must be satisfied so that you are sure of her guilt beyond reasonable doubt. The test is not doubt, or slightest doubt. The test is reasonable doubt. If you consider her innocent of the charge you must give your opinion that she is not guilty. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty."

21. In this case the accused has been charged with 06 counts of Larceny and Embezzlement by clerks or servants contrary to section 274 of the Penal Code, one count of Forgery contrary to section 335(1) of the Penal Code, one count of Uttering contrary to section 343(1) of the Penal Code and one count of Demanding property on forged documents contrary to section 345 of the Penal Code.

22. The elements of the offences are as follows :

Count 1-6 ( Larceny and embezzlement by clerks or servant )

1. The accused
2. Whilst being employed by PFL as a servant

100. Fraudulently embezzled monies received by him in the name of PFL
     

Count 7 ( Forgery )

1. The accused
2. With intention to defraud

100. Forged bank note, namely Westpac Bank cheque no.00178
     

Count 8 ( Uttering )

1. The accused
2. Knowingly and frequently uttered forged Westpac cheque no.001718
   

Count 9 ( Obtaining money by virtue if forged document )

1. The accused
2. With intent to defraud

100. Obtained cash of $3549.66

4. By virtue of Westpac cheque no.001718
   

23. As for the counts 1-6, I find that there is no dispute that the accused was given these monies from the schools for the goods supplied by Post Fiji. He also admitted receiving them in his evidence as well as in his caution statement. His defence is that he handed all these monies to Post Shops and he was not responsible for them after that .

24. But an Audit report conducted by Post Fiji in 2008 shows that nearly $23,788.81 was outstanding from the accused and he was given time to rectify this amount. PW7 who was the Human Resource manager of Post Fiji also said that the accused was given time to collect the amount and even after that there was $17,000 owed by the accused to Post Fiji.

25. Even though the defence submitted in their closing submission that the prosecution has failed to prove that the monies collected from the schools were not paid to the Post Fiji I find that PW2 in his testimony said that they have matched the invoices with the money collected and found that these amount in the charge sheet was not given to Post Fiji. His statement was also marked as PE-02 without any objection by the defence and this statement clearly shows that these monies from the schools as well as the cheque from Makoi Muslim School were not credited to the Post Fiji which further confirms his evidence .

26. Now I would consider the explanation given by the accused. As noted earlier he submitted that these were handed over to Post Shops. But I find this version not acceptable for the following reasons. In his caution statement he said he did not receive receipts for these as it was busy period. According to the charge sheet as well as caution statement the accused received these payments from November 2007 to end of January 2008. I find it hard to accept that the Post Shops would be busy whole this period and they would fail to issue receipts for the payments collected that time to one of its own employee. Also the accused just handing over these monies to Post Shops without getting any acknowledgment from them is not probable considering his experience as a sales rep in Post Fiji.

27. In in his evidence taking a different position the accused said he got some receipts from the Post Shops for these payments. As for failure to produce these during his testimony his explanation was that they were attached to an audit file and this was taken from him by Dharmendar( PW2) and Bimal ( PW1). But this was never put to these witnesses when they were giving evidence by the defence. Also even though the accused in his evidence said his lawyers have asked for a copy of this file from the Office of DPP there were no correspondences produced to prove this request. These contradictions in the defence evidence makes accused's version not credible. Therefore I would accept the version presented by the prosecution witnesses and come to the conclusion that the accused failed to hand over these monies to Post Fiji.

28. The accused also admitted receiving the cheque and the prosecution has proved that this was altered .Also it is not disputed that this cheque was cashed and the money was not credited to Post Fiji . The prosecution version is that it was the accused that made these alterations in the cheque and used that to collect the cash from Westpac. The accused said this cheque was handed over to the account section and no receipt was issued to him for that. Unlike the payments for the Post Shops (busy period and no receipts) no clear reason was offered by the accused for not getting a receipt for this cheque. Accused in his caution statement also mentioned one Christina as the person who collected it from him. But in his evidence there was no mention of her or any other person who collected this cheque. All these grounds make his version regarding the cheque also not believable. Therefore only reasonable inference I can draw from these is that the accused altered the cheque and used that to collect the money from the Westpac.

29. Based on all the reasons mentioned above I find that the prosecution has proved all these counts beyond reasonable doubt.

30. Therefore I find the accused guilty for this charge and convict him accordingly.

31. 28 days to appeal

H.S.P.Somaratne
Resident Magistrate