State v Narayan [2016] FJMC 96; Criminal Case 1197.2012 (21 July 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: 1197/2012

STATE
V
PRATHISNA NARAYAN

Counsel : Ms.J.Prsaad for the State

Mr.N.Shivam and Ms.J.Lalfor the Accused

Date of Judgment : 21^st of July 2016

JUDGMENT

1. The accused has been charged with 7 countsofTheft contrary to section 291(1) of the Crimes Decree No 44 of 2009. The accused pleaded not guilty for all the counts wherefore this proceeded for hearing. The Prosecutioncalled 18 witnesses and 49 documents were marked as exhibits. The accused and her husband gave evidence for the defence and also marked 3 documents as exhibits. I would first summaries the evidence presented by both parties.
2. PW1 ( Mr.Brij Lal)– He was running a liquor and grocery shop in 2012 and used to purchase liquor from MH. He paid the full amount for the invoice 17467(PE1) to Ravin(Sales rep) . During cross-examination also the witness said he paid the full amount ($5775.00) to the Ravin.
3. PW2 ( PawanPranit Sharma)- He was the head of Group Human Resources for the Carpenters Group of companies and said that the accused joined the company in 2002 as wholesale marketing manager and finished as Supervisor of Wholesale Department. Her responsibilities included upkeep of wholesale department, ensuring quotations were given to the customer, preparations of invoices, preparation of report to the financial team and ensuring reconciliation cash and delivering cash and raising credit notes. The accused service was terminated in 2012 after they found discrepancies to the amount of $30,000.00. During cross-examination the witness said there were clerks and sales reps working under her in the Wholesale department during that time.
4. PW3 ( AbuBakkar) – Witness was the manager at MH ware house at Walu bay from 2011-2012 and was responsible for managing the stock . He was working closely with the Wholesale department which was under the control of the accused. When there was a short supply or the goods returned to the ware house a credit note would be issued. He was shown PE1 and said full supply of 150 cartoons was made for that. He was shown credit note 17782 for 50 cartoons of Fiji bitter for the amount of $1,925.00 prepared by the accused. Also he was shown branch load summary 434712(PE3) and said the goods were supplied. Stock card 17467 (PE4) was shown and PW3 said 150 cartoons were supplied. He said the credit note should not have been made for this transaction.
5. He also identified invoice 004725(PE5) for 200 cartoons. The amount was $7,640.00 and full goods were delivered and no goods returned. But there was a credit note 729(PE6) for the full amount. Branch load summaries of 431412(PE8) and 431386(PE9) shows all the goods were supplied. The witness said the credit note should not have been passed.
6. PW1 was also shown invoice 005511(PE10) for 200 cartoons to the total amount of $8,260.00 and there was no notation from him or ware house about short supply or returned goods. There was a credit note 726(PE11) for 50 cartoons but the stock card 5511(PE12) shows 200 cartoons (full delivery) were removed from the ware house.
7. Invoice 17952(PE13) for 100 cartoons was for urgent delivery. Branch load summary 17952(PE14) shows 100 cartoons were supplied and stock card 17952(PE15) shows 100 cartoons gone out. No notation about items returned or short supplied.
8. The witness was also shown invoice 4908(PE16) which shows 300 cartoons were supplied, returned and resupplied again. The amount was $11,400.00, but there was a credit note for that 728(PE17) for 150 cartoons. Branch load summary 431580(PE18), branch load summary 4908(PE19) and stock card (PE20) all shows full amount supplied.
9. The witness was further shown invoice 17587(PE21) for 50 cartoons and after checking from branch load summary (PE22) said full supply was made.
10. PW3 also look to the invoice 5416(PE23) for cartoons of 150 and said full supply was made after looking at branch load summary 431473(PE24). But there was a credit note 752(PE25) for that with no notationto show short supply and said there was no reason for the credit note.
11. Pw3 was also shown invoice 5570 (PE26) and said 100 cartoons of bitter and 50 cartoons of gold had been supplied according to branch load summary (PE28) and there was a credit note 724(PE27) for unsupplied goods.
12. The witness was shown invoice 4651(PE29) and said everything been supplied apart from 2 broken bottles. But according to wholesale copy (PE30) the amount to be replaced was 40 cartons of bitter and 30 cartoons of gold. Branch load summary (PE32) shows only 2 bottles to be replaced but there was a credit note (PE31) for 60 cartoons of bitter and 20 cartoons of gold.
13. During cross-examination the witness said a customer copy can be reprinted. He was shown copy of customer invoice (PE21) and said based on the accused insistence he passed the credit for that even though the goods were delivered. He told the accused he would report about that to the manager.
14. PW4 ( Ravin Prasad)- He was working as a sale person for MH in 2012 and used to pick orders and collect the money . He was working under the accused and she prepared the invoices. He signed the customer copies and brought the money to the office and gave to the accused. She also counted itin front of him when receiving the money. There was a book where invoice numbers and monies given to the accused were recorded. He also said following amounts were given for the various invoices to the accused.

Invoice 4725( PE5) - $7600.00

Invoice 5416(PE23) - $5805.00

Invoice 17467(PE1) - $5775.00

Invoice 5511( PE10)- $8260.00

15. The witness further said the accused always counted the money when she received it and then signed the book. He resigned from the job on 01/01/2012. During cross-examination the witness denied issuing personal receipts and said the customer copy would be with the customer. There was a video camera in the office. Only the people who received the money counted it. He always gave the money to the accused. He was shown PE23 and denied his signature there for amount $3,870.00. He also said for invoice 4725 he brought $7600.00 to the accused. The book came in to operation from 11/11/2011. In PE23 he wrote paid cash and not red signature. He further denied making amendments to the delivery copies. He did not write paid $3849.00 in PE1 using a customer copy. For PE10 the witness denied giving the wholesale department only $6,195.00. During re-examination he denied seeing Amani amending PE5 and said for PE23 there was no amendments in the customer copy and the delivery copy was with the accused. He did not make any amendments in the delivery copies and they were with the accused. He gave the full amount as noted in the book and the accused would count it separately with the invoices in front of him.
16. Pw5(SanjanaNand)–She was cashier at MH Walu Bay and used to go an collect cash from the Wholesale department. She would receive the money and cash summary and invoices were not given to her with the cash. She received the following cash summary forms from the accused. Even though she asked for it she did not receive invoices to check the cash.

PE33 Interim /final cash summary 8564

-Invoice 17476 -$3849.00

-Invoice 5416 - $3870.00

- Invoice 5511- $6195.00

PE34 Interim /final cash summary 8681

-Invoice 17952-$1925.00

-PE35 Interim /Final cash summary 8589

- Invoice 4908-$5700.00

PE36 Interim /Final Cash summary 8529

-Invoice 4651-$2764.00

17. PW6 ( Rohit Prasad)– He was also a sales rep working under the accused and used to take orders and collect the cash. When the customers gave the money he counted it and signed in the customer invoice and brought it back. The Customer copies remain with the customer and the money put to the locker and the accused got the key for that. In the collection book the amount was written and the accused or sarojini also counted the money. The invoices were in files with the accused and the collection book was kept in the office. He and Ravin started the book because there were some discrepancies earlier. He received following amounts for the invoices.

Invoice 17587(PE21) - $4180.00

Invoice 5570(PE26) - $5925.00

Invoice 4651(PE29) - $5876.00

Invoice 17952(PE30)- $3850.00

18. The monies were handed over to the accused and she counted the amounts and signed the book. She counted on her table. He also tendered the book as PE37. For the above invoices he received the full payments from the customers. He also said he did not make notation on PE30 .For PE13 he collected the payment of $3850.00 and there was a credit note of $104.00 which were noted in the book. She counted the money after receiving it. For PE16 (invoice 4908) he gave her $11,400.00 but he did not mark it in the collection book as he was in a rush and was not working on the next day. He did not have any issues with her.
19. During cross-examination the witness denied brining the customer copies back and said the money was counted on the accused table on her advice as she was their boss. He with Ravin and the accused put the book. He did not make amendments to PE13. In the cash book she has to count and sign. He asked for receipt book from the accused but she did not give that to him. He said he was not aware about reprinting the customer copy and said he brought the total amount of $4180.55. He did not collude with Sarojini to reprint a customer copy. In delivery copy (PE30) he did not make amendments. During re-examination the witness confirmed that he was not making amendments on the invoices and gave full amount to the accused. For PE21 the copy shown by the defence was not same as there was no signature.
20. PW7 (Poonam Wati)– She was the credit controller of MH. She was not always getting the invoices with the cash summary. When she inquired about that she was advised from the Wholesale department that there was a partial payment or credit note. The accused was responsible for ensuring the money collected by the Wholesale department was given to the credit Department. During cross-examination she said she was not aware about the procedure in the field. When collecting the money she was not always getting the receipts. She reported about that to the Financial Controller. During re-examination witness said according to standard procedure she would receive invoices for partial payments only when the full payments made. When there were partial payments the accused would inform about credit note or there would be another payment later.
21. PW8(Navin Narayan)–He was running the liquor land and grocery shop in 2011 and was purchasing liquor from Rohit Narayan and paid $5876.50 for him on invoice 4651(PE29).
22. PW9(Sarojini Devi)-She was working as a wholesale clerk under the accused in 2012 . When they receive money from sale reps the cash summary prepared and given to the credit department. There was a register to record the money brought by the sale reps. There was a table to receive the money with a camera focused on that but the accused used to count on her table most of the time. The accused would get approval from the GM to prepare the credit notes. PW9 and the accused only passed the credit notes. She also said the credit not should not have passed for these disputed transactions as full deliveries were made. The witness also said for PE37 even though the accused received $5575.00 according to cash summary prepared by accused only $3849.90 was given to the credit department. For invoice 4725 (PE6) even though the accused received $7600.00 according to cash summary only $3800.00 was given. For invoice 5511(PE10) there should not have been credit note as full delivery was made. Full amount of $8260.00 was received by the accused but according to cash summary prepared by the accused only $6195.00 was given to the credit department. For invoice 17952(PE13) full deliver was made and the accused received full amount of $3850.00. But the credit department was given only $1925.00 through the cash summary. For invoice4908 (PE16) full amount was supplied but only half the value of the goods ($5700.00) was given to the Credit department. For invoice 17587 full deliveries was made and the accused received $4180.00. For invoice 5416 the accused got $5805.00 but according to cash summary only $3870.00 was given. For invoice 5570 only 150 cartoons were supplied and the accused received $5925.00. For invoice 4651 the sale rep collected $5876.00 and gave to the accused and for that the witness passed the credit note on the instruction of the accused. The accused gave only $2764.00 to the credit department.
23. During cross-examination the witness said the sale reps counted the money and entered that in to the book and whoever received it also counted it also. The book came to operation after discussion with the accused. The credit department got the invoices later based on the instruction of her supervisor. She also said she did not reprint the customer copy for PE21. She also said to carbonize in the delivery copy a reprint can be also used instead of the original customer copy. She said the money given by the reps was signed in the book. The accused could have make alteration on reprinted copy. During re-examination the witness said she, the accused and viniana can print invoices.
24. PW10 (VinianaSalele)-She was working as wholesale assistant under the accused in 2011 and when the sale reps brought the money they enter them in to the cash book. Whoever collect the money also count it in front of sale reps and sign the book. The book came in to the operation after there were issues raised by the sales reps about missing money .For PE5 the money was received by the accused. Even though she prepared the cash summary 37547 (PE38) the accused received a sum of $7600.00. But the witness received only $3800.00 from the accused. She also in re-examination said she would not sign if the sales rep gave less money than the figure entered in the book and she would count every time before signing the book. Also the video camera would not capture the accused table.
25. PW11 ( AmaniDelaitubuna)-He is working as security in the ware house at walu bay and denied making alterations in PE6. Further the witness denied making any marks crossing the amount of beer supplied.
26. PW12 (SimioneVikai)–He was working as a delivery boy and said when taking the goods he took 2 invoices and 2 BLS. He denied making any alteration to the invoice PE16. During cross-examination the witness said he delivered the 300 cartoons to Totatoka and the customer asked him to sign the BLS.
27. PW13(SiamoniVakarusabi) –He was working as Supervisor Liquor Department in Walu Bay and marked stock cards as PE39 and PE40 to show the movement of beer. He also denied making changes in PE1, PE16 and PE10. Once the delivery was made the delivery copy would be given to the office. During cross-examination the witness said he would be the only person seeing the stock cards.
28. PW14(RavumaNayago)- The manager IT in Carpenters Fiji Ltd and looking after the entire system of the Group . He marked the screen shots of the credit notes as PE41 to PE47 and summary table of screen shots as PE48 and informed that following people prepared the credit notes.

invoice 4725 and 4651- Sarojini

Invoices 4908, 5511, 17467, 5416, 4651 and 5570- The accused

29. During cross-examination the witness said the credit notes were raised on one day and the reason would be processing multiple credit notes. Also he said he failed to find credit notes for invoices 17952 and 17458 and in re-examination said if the user did not enter the invoice number he would not able to find the credit note in the system.
30. PW15(MeliRadrekusa)-The security manager dealing with all the security installations in MH and said there was a security camera in the accused office focused on the table where the money should be counted. The camera overwrites every 3 monthsand hecould not retrieve the footage from 2011 and 2012. During cross-examination the witness said the video shows the accused was not counting in the table. He also said the camera would have shown the people going to other table.
31. PW16(Ravindra Singh)-He was doing a shop in Navua and said he made full payment($11,400.00) for PE16 for 300 cartoons of beer. During cross-examination the witness said one invoice was taken by the police whilst the other one was missing. He paid the full amount to Ravin.
32. PW17(AsithaSunndeniya)- The financial controller of the Carpenters Group and described the procedure in the wholesale department. The sale rep when collecting the money would sign in the customer copy. He came to be aware of shortcoming in 13/03/2012 and checked the book and saw the money was not given to the credit department. After the audit they discovered unauthorized credit note being processed. He was also shown the various documents and informed the court that the credit notes were passed without the proper approval from GM or from him. He also said a party to act on amendment in the invoices there need to be some signature and instruction from the warehouse. He was shown PE21 and said Baka signature was there to pass the credit for that. He also said the invoice can be reprinted. He also marked his report as PE49.
33. During cross-examination the witness said for the customers they are not issuing separate receipts. Also when there was part delivery she should have asked about that. Also she has to ask the ware house manager before passing the credit note. The witness was shown PE1 and said the alteration there was not signed. Also the accused was not given the authority to pass the credit for these transactions .The witness also said he did not have any problem with the husband of the accused. In re-examination the witness said only for the pre-sale the authority was given to make reversal. Also after considering with the credit notes he said he was not agreeing with the spread sheet and also he has not seen that before the hearing and it has to be verified.
34. PW18(DC 3698 Rakesh Prasad) –He was the investigating officer in this case and said after the lodge of the complainant he uplifted the documents and conducted the caution interview of the accused. During cross-examination the IO said after the accused informed in her interview about the camera he went to investigate and found it was removed. In re-examination the witness said PW17 informed him about the camera and the PW15 informed him that data could not be retrieved. He could not record the statement from PW15 because he was not available. The customers also verified that full amount was paid for the invoices. The witness was also not aware about the purpose of the tick marks in the book.
35. The Accused (Prathisnar Narayan) – She was wholesale department supervisor from 2002-2012 and said salesmen went and brought the orders. The department raises invoices. After the delivery again the salesmen collected thecash, brought to the department and filled the book. Most of the time Sarojini collected the cash and other times the accused and Viniaan used to collect it. The accused implemented the book on 11/11/11 for reconciliation purpose. She also accepted that as a general practice when the money is received it has to be counted. Even though she signed the book she did not receive the money. The accused also denied the money was counted on her table. Salesmen wanted to leave for work and therefore she would sign the book to release them. She also was not checking about markings and narrations in the delivery copies and was only helping her staff. She made credit notes on 06/01/2012 for 3.7 million based on instruction of PW17 and his email was marked as DE1. Normally she has to get the authority from PW17 to do the reversal. She also marked an email as DE2. She received the amounts in the delivery copies and prepared the cash summaries. She was the boss in the department and was not wasting time to count the money. When she was preparing the cash summary she did not have branch load summary or stock card to verify. For invoice 17587 she found 2 customer copies and after inquiring from Sarojini the accused went to Abu bakar and got the marking for passing the credit note. This was marked as DE3. She was not aware there would be reversal of transaction and she implemented the book only for reconciliation purpose. When she was first accused about these allegations she told the financial manager to check about the video camera which was the main evidence in her favor. Her husband was group operation manager of the Carpenters and one week after her termination he was also dismissed.
36. During cross-examination she said she was assisting sarojini with her work and collecting cash on behalf of her without counting. She agreed that the camera was not focused on her table. She also agreed to pass the credit note there must be confirmation from Abu bakar or someone acting in his capacity that had access to the stock card and branch load summary. She also agreed that a person would put a normal carbon and write on delivery copy. She also said for signing it would take only few seconds and she was doing that as a help to Sarojini and the salesmen so they can go back to field work. But she denied making alterations in the delivery copies.
37. DW2(Sanjay Lal) –The husband of the accused and said he also worked for the complainant company as whole group operational manager and directly reporting to the owner of the company ,Sir Morgan. The witness was making inquiries about booking by the company and one week after the termination of the accused he also got fired. In order to put him in trouble and defame him in the eyes of the owner the management used his wife. During cross-examination the accused said the financial controller manipulated the witnesses against her wife and admitted that she has to follow the proper procedure.
38. At the conclusion of the hearing both parties filed comprehensive closing submissions which I have carefully perused also for this judgment.
39. Now I would consider the applicable law in this case. 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).

40. 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 (emphasis added).”

41. The accused has been charged with 07 counts of Theft contrary to section 291(1) of the Crimes Decree which reads :

“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.”

42. Therefore the Prosecution has to prove following elements beyond reasonable doubt :
    1. The accused ;
    2. Dishonestly appropriates property ;
    100. Belonging to the complainant ;
    4. With the intention of permanently depriving the complainant of the property.
43. In this case there is no direct evidence to show the accused committed any of the offences. Accordingly the Prosecution is relying on circumstantial evidence to prove their case.
44. Pollock CB, likening circumstantial evidence to a rope comprised of several cords, said:

One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.

Thus it may be circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of. (Exall (1866) 4F & F 922, at p. 929).

45. ‘It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference’ (Teper v The Queen [1952] AC 480, per Lord Normand at p. 489)
46. Fiji Independent Commission Against Corruption [FICAC] v Mohammed - Summing Up [2015] FJHC 454 Justice Madigan said :

“Circumstantial evidence can be very powerful evidence , but it is important that you examine it with care, and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case. Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence , and mere speculation. Speculation in a case amounts to no more than guessing or making up theories without good evidence to support them and neither you nor anybody else should do that.”

47. Having considered the applicable law in the above manner, I am going to first analyse the evidence presented by the prosecution. The accused is charged with 07 counts of Theft and therefore each count would be considered separately to see if the prosecution has proved their case.
48. The 1^st count –“Pratishna Narayan between the 11th day of November 2011 and the 14th day of November 2011 at Suva in the Central Division whilst being employed as a Wholesale Supervisor for Morris Hedstrom dishonestly appropriated $3,800.00 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.”

PW4 in his evidence said he collected $7600.00 for the invoice 4725(PE5) on 11/11/2011 and gave to the accused who acknowledged by signing the red book. She counted the money before signing the book. PW10 said she was given only $3800.00 by the accused to prepare the cash summary (PE38) and this was the amount given to the credit department. The accused instructed PW5 to prepare a credit note for that which was not proper according to PW3 and PW18 as full delivery was made and no instruction from the ware house to pass the credit note. The Prosecution is inviting this Court to draw inference that the accused took the balance &3800.00 from this transaction.

49. The 2^nd count –“Pratishna Narayan between on or about the 14th day of December 2011 at Suva in the Central Division whilst being employed as a Wholesale Supervisor for Morris Hedstrom dishonestly appropriated $3,114.60 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.”

PW6 in his testimony said he gave $5876.50 to the accused on invoice 4651(PE29) on 14/12/2011 and she counted and sign the book to admit that. PW5 said she collected only $2761.00 from the accused with the cash summary (PE36). There was a credit note passed without the instruction from the ware house. According to the Prosecution the balance $3114.60 was taken by the accused in this count.

50. The 3^rd count –“Pratishna Narayan on or about the 29th day of December 2011 at Suva in the Central Division whilst being employed as a Wholesale Supervisor for Morris Hedstrom dishonestly appropriated $5,916.00 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.”

PW4 collected the following amounts from the customers and gave to the accused on 29/12/2011.

Invoice 5416(PE23) - $5805.00

Invoice 17467(PE1) - $5775.00

Invoice 5511 (PE10)- $8260.00

The accused counted the monies and signed the book to accept receiving them. PW5 received only the following amounts for these invoices with the cash summary (PE33).

Invoice 5416(PE23) - $3849.00

Invoice 17467(PE1) - $3870.00

Invoice 5511 (PE10)- $6195.00

The balance amount of $5926.00 was not given to the credit department and later the accused passed credit notes which were not authorizedby the ware house manager. The Prosecution contends that the only reasonable inference is that the accused took this balance $5926.00.

51. The 4^th count- “Pratishna Narayan on or about 3rd day of January 2012 at Suva in the Central Division whilst being employed as a Wholesale Supervisor for Morris Hedstrom dishonestly appropriated $4,180.55 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.”

PW6 gave the accused $4180.55 to the accused on invoice 17587(PE21) and she counted the money in front of him and signed the book. PW5 said that the credit department did not receive this amount and this was also confirmed by PW18, the financial manager during his testimony. The accused got the approval from PW3to pass the credit note on a customer copy even though he said the full delivery was made. The accused insisted on having him passing a credit note even though he informed her that full delivery was made. Therefore the Prosecution argues that the full sum for this invoice was taken by the accused.

52. The 5^th count–“Pratishna Narayan between the 4th day of January 2012 at Suva in the Central Division whilst being employed as a Wholesale Supervisor for Morris Hedstrom dishonestly appropriated $5,700.00 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.”

PW6 testified that he gave $11,400.00 to the accused for invoice 4908(PE16) but he did not sign the book as he was in a rush. PW5 informed the court that she received only $5700.00 for this invoice as per the cash summary (PE35). The accused passed an Unauthorised credit note PE17 (which was confirmed by ware house manager and the financial controller) even though full delivery was made and the customer (PW17) confirming paying the full payment. Therefore the Prosecution submits that even without the entry in the book only reasonable inference that can be drawn is that the accused stole the balance $5700.00.

53. The 6^th count–“Pratishna Narayan on or about the 10th day of February 2012 at Suva in the Central Division whilst being employed as a Wholesale Supervisor for Morris Hedstrom dishonestly appropriated $1,925.00 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.”

PW6 in his testimony said he gave the accused $3850.00 for the invoice 17952(PE13). She counted the money in front of him and signed the book to acknowledge that. But as per the evidence of PW5 the credit department received only $1925.00 on cash summary (PE34). Therefore the prosecution submits that the accused stole the balance $1925.00 in this count.

54. The 7^th count- “Pratishna Narayan on or about the 21st day of February 2012 at Suva in the Central Division whilst being employed as a Wholesale Supervisor for Morris Hedstrom dishonestly appropriated $5,925.00 in cash belonging to Morris Hedstrom with the intention of permanently depriving Morris Hedstrom of the said sum.”

PW6 testified that he handed over $5925.00 for the invoice 5570(PE26) to the accused and she counted the money in front of him and signed he book. According to PW5 and the financial manager (PW18) the credit department did not receive this amount. Also there was unauthorized credit note passed by the accused for this transaction later. Therefore again the prosecution submits that the accused took this amount.

55. Having analysed the prosecution case, now I turn to the testimony of the accused. The accused strongly denied all these offences. The accused said she gave the full amount received from the sales reps and did not take any money for any of these counts. As for signing the book she further said she did not count the money in any of these occasions and she just signed the book to release the sales reps to their field work. Accepting her evidence alone means, prosecution witnesses e.g. sales reps, ware house manager, financial manager, her clerks, security manager and even customers were all colluding and lying in the court for no valid reason which I find hard to accept.
56. But to show some kind of motive the defence called the husband of the accused as a witness and he said the management was not happy with him and to defame him they made these allegations against his wife. But as correctly submitted by the prosecution during the hearing these were never raised whilst their witnesses were giving evidence and kind of unfair to them. Further I also can’t understand what benefit some of the prosecution witnesses would get by lying in the court when they are no longer employed with the complainant company.
57. From the line of cross-examination and the evidence of the accused, I find that the accused is submitting that she was helping Sarojini with her work. Her version is that since Sarojini was busy with printing invoices the sales rep used to come to her with the book after entering all the figures and she just signed the book so they can go back to work. She never counted the money in front of them and used to rely on the delivery copies to prepare the cash summaries. She never made amendments in these delivery copies and based on the alterations which she though genuine, passed the credit notes.
58. Since the accused is denying making amendments in the delivery copies this means they had to be made by the sales reps and also they were making false entries in the book also. Therefore I am going to consider one example to see if this could have happened the way the accused is alleging. As the accused denied signing the book in some counts (Count 2) and giving the money to another to prepare cash summary (court1) the best scenario would be in my mind is count 6.
59. In this count according to prosecution sale rep (PW6) handed over $3850.00 to the accused on invoice 17952 on 10/02/2012. The accused admitted signing the book but denied counting the money. She prepared the cash summary for $1925.00 based on the delivery copy which had amendments consistent to that figure and denied making these changes. So this means the sales rep made changes in the delivery copy. But then what prevented him from entering this figure in the book instead of $3850.00 when he could have seen the accused was not counting the money in front of him and accepting whatever he gives to her. He could have been aware; if the accused for a change counted the money in front of him or asked another clerk to count she could have easily found out that the PW6 giving a different figure from the amount entered in the book. Also since this book as submitted by the accused has no value and was only for reconciliation there was no obstacle for the sale rep to enter the figure consistent with the amended delivery copy for the sum of $1925.00. But in all the counts figures were entered consistent with the original figures in the delivery copies. The reason in my view is that these were the figures the sale reps were giving the accused. This example is sufficient to show that the sales reps were not making changes in the copies. I am also satisfied there is no motive for delivery boys, ware house people ,customers and other clerks to make these changes and this leaves me only with the accused.
60. Now I turn my attention the issue about video camera in this case which was according to the defence their main evidence and which could have exonerated the accused. Due to the unforeseen circumstances this was not available during the hearing. According to the evidence it was shown that there was a video camera focused on the counting table and the everything would be recorded. What the accused was trying to show to the court is that this footage would have shown that she was not counting the money when the sales reps gave that to her. But she also admitted that her table was not focused from camera. Sales reps (PW4 and PW6) as well as SarojiniDevi( PW9) said the accused used to count on her table . Sales reps further said since the accused was their superior they did not have a choice about she is counting in her table. Therefore even if this CCTV footage was available it would not be relevant for the defence case and in my view would have even confirmed the prosecution evidence.
61. One of the main evidence the prosecution is relying on is passing the unauthorized credit notes by the accused. According to the evidence for these counts the accused passed the credit note or asked Sarojini to pass the note. Having gone through the documents during the hearing the accused admitted these notes should not have been passed. The defence taken by the accused was that she prepared them according to the amendments in the delivery copies and she did not have other documents (BLS and stock card) to confirm about full deliveries.But the ware house manager (PW3) and financial controller said these credit notes should not have passed without proper notations from the ware house. In all the amendments there was no proper signature or instruction from the ware house to pass the credit note. Only for the 4^thcount she got the approval from ware house manager even though he did not agree with that and informed full delivery made on that. This also shows the accused was fully aware about the procedure about getting the approval from the ware house for passing credit notes.
62. The accused during her evidence said all these were passed on a single day (06/01/2012) with other credit notes and got the approval from the financial controller for that. She also marked spread sheet purporting to show the approved credit notes and said this was prepared by Sarojini . The defence did not put this spread sheet to Sarojini who was supposed to prepare that and the financial controller said the figures were not correct in that sheet and also he has not seen that before and this has to be verified . Also in my view there is no evidence to show this spread sheet was even attached to the mail seeking approval from the management. Further the financial manager was firm in his position that there would not be authority to pass credit notes for these transactions. Therefore I do not give any weight for this spread sheet and find there was no authority given by the management to pass these credit notes.
63. This brings me to the cash book (PE37) which is the most crucial evidence for the Prosecution and not surprisingly the defence tried so hard to downplay. According to the accused she implemented this book only for reconciliation purpose and she just signed the book when receiving the monies from the sales reps. she never counted which if accepted is like giving someone signed blank cheque. She was working in the wholesale department from 2002 and accepting such big amounts without counting is improbable in my view.In fact the accused admitted as a general practice when someone is receiving the money that person has to count it . Also Sarojini and Viniana who were also collecting the money said they count the money before signing the book. If the book is only for reconciliation purpose, I do not think other people would count the money like that manner when signing the book.
64. The defence in closing submission and during the hearing tried to highlight that the accused would not have committed these offences as she implanted the book, but I accept the evidence of the prosecution witnesses that this was implemented by the sales reps after there were some disputes about missing monies. This was corroborated by Sarojini and Vinaina too.
65. Further in her evidence the accused said she collected the money on behalf of Sarojini because she was busy with printing invoices. According to the accused it took only few minutes to sign the book as she was not counting the money. Then there was no reason why the Sarojini would not have made the same thing even if she was busy with printing invoices. Further the defence did not ask Sarojini about accused helping her with collecting money whilst she was printing invoices.
66. During cross-examination the learned defence counsel tried to show PW10 (Viniana) was doing the same thing as the accused when collecting the cash on the book but PW10 said clearly that whenever she received the money from the sales reps she counted before signing the book.
67. Sales reps in their evidence said they implemented the after there was some discrepancies and this was confirmed by Sarojini and Viniana also. According to sales reps the accused used to count the money in her table away from the video camera and in all these occasions apart from the 5^th count she counted the money before signing the book. I have no reason to doubt their evidence.
68. Now I again turn back to the amendments in the delivery copies which have been shown to be invalid alterations. The delivery copies were in wholesale department and the accused had access to that when she was preparing the cash summaries. Also the accused admitted that to make amendments in the delivery copy there is no need for the customer copy and just using the normal carbon it can be made.
69. The defence also marked a photocopied customer copy as an exhibit but during the hearing it was also shown even though there is normally only one customer copy available, this would be reprinted and the accused also has the access to reprint that.
70. So much was emphasized by the defence about receipts and MH standard procedure during the hearing. The prosecution witnesses whilst admitting there were no receipts issued to the customers submitted that the invoices were considered as alternative for that. Further witnesses from the credit department said the invoices were not submitted by the Wholesale department on time. The accused was the supervisor of that department at that time.
71. Also during the hearing as well in their closing submission the defence tried to show that the accused would not have been aware about the credit reversal. If this issue was properly raised during the prosecution case and especially when the financial manager was giving evidence he would have given an answer whether this happened also in previous years in the company and when they started considering about reversing these transactions in 2011.
72. Having considered the credibility of the witnesses also I accept the evidence presented by the prosecution witnesses (sales reps, ware house manager, clerks and financial manager) based on the demeanor, impartiality, consistency and probability. I have explained my reasons for that in the above paragraphs.
73. The crucial witnesses for the prosecution were the sales reps (PW4 and PW6) and the defence failed to raise doubt about their evidence through the lengthy cross-examinations. They clearly stated the accused received the money, counted and signed the book and they were not involved in making changes in the delivery copies. I accept these 2 witnesses as credible witnesses.
74. Even though the defence submitted that the prosecution failed to call all the customers, in the end what matter in a criminal trial is quality of the evidence and not the quantityand in this case the prosecution has produced the cogent and credible evidence through their witnesses to prove their case.
75. Based on the above mentioned reasons, now I am going to summaries my finding in the following manner ;
    1. For 1,2,3,4,6 and 7 count the accused received the money from the sales reps counted the money in front of them and signed the book to acknowledge that ;
    2. But the different amounts were given to the credit department through the cash summaries;
    100. For the 5^th count even though the accused did not sign the book she received the amount in the invoice and again only partial amount was given to the credit department through a cash summary ;
    4. Even with the specific instructions the accused was counting the money in her table which was not focused by the camera;
    5. Unauthorised credit notes were passed for these transactions by the accused or on her instructions by other clerks without the proper notation from the ware house and approval from management ;
    6. Even with the knowledge that full delivery was made the accused managed to get the approval from the ware house manager to pass a credit note for PE21;
    7. There were Unauthorised amendments in the delivery copies and the accused had access to them as well as capacity to reprint the customer copies ;
76. I mentioned earlier the prosecution case is based on circumstantial evidence and based on the above facts only reasonable inference I can draw in this case is that the accused committed all these offences.
77. Therefore I find the prosecution has proved all the counts beyond reasonable doubt. Furthermore I find the accused guilty for all the counts and convict her accordingly.
78. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate