Maharaj v Reginam [1978] FJSC 3; Criminal Appeal 132 of 1977 (19 January 1978)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. 132 of 1977

BRIJ NAND MAHARAJ
s/o Ram Samujh Maharaj
Appellant

v.

REGINAM
Respondent

JUDGMENT

The appellant was convicted by the Magistrates Court Suva of Fraudulent Conversion contrary to section 311(1)(c)(1) of the Penal Code, on three counts, and was sentenced on each count to 4 years' ,imprisonment, the sentences to be served concurrently.

He appeals against his conviction and sentence.

The prosecution evidence was that the appellant was given $150 by one Premila Devi so that he, the appellant, would obtain an Australian visa for her and arrange for her travel to that country.

In relation to the second count the evidence was that one Satya Nand gave the appellant $292 for the purpose of obtaining a visa for New Zealand and tickets for travel to that country.

Similarly, the prosecution evidence in relation to the third count was that the appellant received $824 from Ram Dhani Singh so that he, the appellant, would obtain Australian visas for Ram Dhani Singh and his wife and arrange for their travel to that country.

No visa was obtained for any of them. None of the four was able to go either to Australia or to New Zealand. None of them has received back any of the money given to the appellant.

The appellant, in his evidence, denied receiving any money from Premila Devi. According to him, Premila was a friend of his and he had offered to pay her plane fare to Australia if he could get a visa for her. This he was unsuccessful in obtaining.

The appellant admitted receiving $292 from Satya Nand for the purpose of obtaining a visa for New Zealand and a plane ticket to that country but, when Satya Nand later advised him he was no longer interested in going to New Zealand, he, the appellant, returned the money to him.

In case of Ram Dhani Singh, the appellant said that he had, at Ram Dhani Singh's request, agreed to advance him the money to obtain plane tickets for him and his wife. He had in fact purchased these for them but when their applications for a visa was turned down he returned the tickets and obtained a refund. He denied receiving $824, or any other sum, from Ram Dhani Singh.

The prosecution produced a great deal of other evidence supporting the evidence of the three complainants. The learned Magistrate had no hesitation in accepting their evidence and convicting the appellant.

The appellant has put forward several grounds the main one being that there was no evidence from which fraudulent intent on his part could be inferred. If the prosecution evidence was accepted, as it was in this case, the learned Magistrate was correct in holding that it pointed inescapably to planned fraud on the appellant's part. I also accept the learned Magistrate's view that, while the particulars of offence in each count mention only "visa" and not the "plane ticket", they were adequate for the purpose of giving the appellant all the necessary information concerning the case he was to meet. This complaint which forms another ground of appeal has little merit.

Another ground of appeal alleges that the learned Magistrate should have made "an order for the appellant's witnesses to be present for the completion of defence case". On 22nd August 1977 after he had given his own evidence the appellant applied for an adjournment to enable him to get two witnesses whose names he gave to the Court. He did not ask f or Court's assistance. The case was adjourned until 1st September 1977. The appellant was ill and did not turn up on that day. The trial resumed on 5th September 1977, when the appellant said, "I have no witnesses present. I close my defence." Even then he did not ask for the Court's assistance in getting his witnesses.

I do not find any merit in this ground.

I also find no merit in the ground which alleges that the learned Magistrate misdirected himself on the onus of proof.

The appeal against conviction is dismissed.

With regard to the appeal against sentence, the appellant points out that at about the same time before the same learned Magistrate he had been charged with five counts of fraudulent conversion in a separate trial. To these he had pleaded guilty and had been sentenced to 18 months' imprisonment on each count, sentences to be served concurrently. He submits that a total of 5 1/2 years' imprisonment is excessive. He has appealed against the sentence of 18 months' imprisonment in that other case and it forms the subject of Criminal Appeal No. 133 of 1977 before this Court.

Learned Counsel for the respondent concedes that if all the offences were included in the same charge it is unlikely that a total of 5 1/2 years' imprisonment would have been imposed. He cannot offer any reason why they could not have been so included. He also points out that, while the appellant has a bad record, the last conviction of this nature was entered against him more than ten years ago.

I will, therefore, set aside the sentence of 4 years' imprisonment in this case and, in its place, substitute a sentence of 3 years' imprisonment on each count to be served concurrently so that the totality of sentences to be served by the appellant would be 4 years instead of 5 1/2 years.

(G. Mishra)
JUDGE

Suva,
19th January 1978