IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 32 OF 1994

Between:

RAGHWA NAND MAHARAJ
s/o Gaya Prasad Maharaj
Appellant

- and -

STATE
Respondent

Mr. A. Kohli for the Appellant
Mr. D. McNaughtan for the State

JUDGMENT

The appellant was on 9 July 1994 after trial in the Magistrate's Court, Labasa convicted on each of the six counts of obtaining money by false pretences contrary to section 309(a) of the Penal Code. The offences were alleged to have been committed on 10th and 11th January 1990. In respect of each count he was sentenced to imprisonment for 3 years to be served concurrently.

He appeals against conviction and sentence on the following grounds:

(a) That the Learned Trial Magistrate erred in law and in fact in coming to a finding that the accused falsely represented to the Complainants that there was land for sale and the accused knew this to be false.

(b) That the Learned Trial Magistrate erred in law and infact in failing to make a finding that the accused in fact knew that the representation was false or did not believe the same to be true.

(c) That the Learned Trial Magistrate erred in law and in fact in failing to give reasons for not accepting the testimony of the accused.

(d) That the Learned Trial Magistrate erred in law and in fact in failing to evaluate the total evidence adduced in Court and therefore his findings cannot be supported by having regard to all the evidence adduced in this case.

(e) That the sentence imposed on the Petitioner is harsh and excessive in all the circumstances of the case.

(f) Prosecution has failed to prove the alleged false pretence in the particulars of charge.

The facts may be shortly stated. In each of the six counts the prosecution case is that with intent to defraud the appellant obtained from six different people various sums of money on each of the six counts respectively, namely $1200, $500, $500, $500, $500, and $1500 totalling $4700 by falsely pretending that he was in a position to secure "a piece of land" for them. Each of the six complainants testified on oath how each parted with the said respective sums of money.

Although Mr. Kohli argued each of the grounds separately, all these grounds, except the one on sentence, could be dealt with in one main ground, in that according to him the essential ingredients of the offence have not been proved and that the evidence adduced in support of each count failed to prove those ingredients required to sustain convictions. This is how I propose to deal with this appeal.

This case involves both fact and law as is clear from the said grounds of appeal. Therefore in considering this appeal I have borne in mind the approach to be followed by an appellate court in such cases. As has been said in KAMCHAN SINGH v THE POLICE by HYNE CJ (4 FLR p.69) that:

"An appellate court will not allow an appeal on facts where the conclusion in the Court below is arrived at after careful consideration of the evidence, unless the conclusion arrived at was clearly and plainly wrong."

The principles to be applied are set out in the following passages in the speech of LORD THANKERTON in WATT (OR THOMAS) v THOMAS (1947) 1 AER 582 which reads:

"I. Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion.

II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question."

Also on the above passage the following observations of LORD REID in BENMAX v AUSTIN MOTOR CO. LTD (1955 1 AER 326 at 329 is noted:

"I think that the whole passage ...... refers to cases where the credibility or reliability of one or more has been in dispute and where a decision on those matters has led the trial judge to come to his decision on the case as a whole. If that be right, then I see no reason to doubt anything that was said by Lord Thankerton. But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion."

Mr. Kohli argued ground (f) first and submitted that intent and defraud has not been proved and the learned Magistrate has failed to make a finding as to what acts on the part of the appellant amounted to intention to defraud. He said that after the appellant was charged he promised to refund the money and "in one case did refund out of goodwill and in rest gave cheques which bounced."

On ground (a) he disagrees with the learned Magistrate's finding that the appellant falsely represented to the complainants that there was land for sale and that the appellant knew this to be false. Mr. Kohli argues that the evidence is to the contrary in that the evidence suggests that the appellant believed that land was available at Korosomosomo.

As to ground (b) he said that the learned Magistrate misdirected his mind. The question he said is whether the appellant "knew" that the representation was false or did not believe the same to be true. He said that the appellant believed that there was land because the plans were there and some of the complainants were also taken to the Native Land Trust Board office.

As for ground (c) he says that the learned Magistrate should have given reasons as to why he disbelieved the appellant. The appellant has not denied that he did not receive the money when we look at the facts that there were plans and the N.L.T.B. was approached.

The ground (d) has already been covered hereabove.

As to ground (e) which is against sentence, he says that it is harsh and excessive for a person who has not offended for ten years.

The learned State counsel on ground (c) said that at p.87 and p.81 of the Record the learned Magistrate has given his reasons for not accepting the testimony of the accused when he said at page 87:

"I believe the prosecution witnesses and the evidence proves the charge against the accused beyond reasonable doubt. The accused's evidence is teeming with contradictions and shows the desperation of a man driven against the will".

On the remaining grounds he said that the learned Magistrate made his findings on (page 81 of Record 3rd paragraph. On question of knowledge Mr. McNaughtan refers to a question in the interview of the appellant (at page 121 of the Record), namely "Q. Did you inquire from the Native Land Trust Board main office in Labasa whether there was any land up for lease in Korosomosomo" and he replied "A. No". He said that it was for the learned Magistrate to decide whether there was land for sale or not. He said the case depended on the credibility of witnesses including the evidence of the appellant. Mr. McNaughtan stated what the powers of an appellate court were on findings of fact and he referred the court to ASMAT ALI s/o Hanumanta and STATE (Crim. App. 12/91) in this regard where the passages I have already referred to from THOMAS and BENMAX are quoted.

On sentence he said that three years' imprisonment is neither harsh nor excessive when one bears in mind that the maximum is five years.

I shall now deal with the grounds of appeal.

In this case the learned Magistrate found for the prosecution in respect of each of the six counts. This Court which is sitting as an appellate Court is asked to decide whether the learned Magistrate could on the evidence before him come to the findings which he made. In view of the able submissions of both counsel I have carefully considered the issue before me and am satisfied that the manner in which the learned Magistrate dealt with the matter, the way he analyzed the evidence and came to the findings to which he did with reasons, there was evidence upon which he was entitled to find the appellant guilty on the six counts and convicted him.

There are certain essential elements in the offence which has to be proved. There is need to show that (a) that pretence was made, (b) the money was obtained thereby and that it was done (c) with intent to defraud and (d) that the pretence was false to the knowledge of the accused (R v. Dutt 8 Cr. App. R.51).

The false pretences were that he "was in a position to secure a piece of land" (as stated in the particulars of offence and later adduced in evidence by each of the six complainants). In this way the appellant induced each of them to part with the various sums of money referred to hereabove. The modus operandi of the appellant was the same in respect of each count.

The section under which the appellant is charged reads:

"309. Any person who by any false pretence -

(a) with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; or

(b) .......................................

is guilty of a misdemeanour, and is liable to imprisonment for five years."

And s308 of the Penal Code defines "false pretence" as:

"Any representation made by words writing or conduct of a matter of fact either past or present which representation is false in fact, and which the person making it knows to be false, or does not believe to be true, is a false pretence."

In a carefully prepared judgment, I do not propose to reiterate its contents at any length other than those facts necessary to consider the grounds of appeal, the learned Magistrate found all the essential elements of the offence proved against the appellant. He found that there was representation, which was false and which he knew to be false; according to the Manager of N.L.T.B. there was no land available for lease or sale. It is clear from the evidence that the complainants believed what the appellant told them about the availability of land. This is the false pretence which operated on the mind of the complainants. These are important factors and evidence had to be adduced in this regard together with intent to defraud to enable a conviction to be obtained. (HARTLEY GEORGE GRAIL 1944 30 Crim App. R. p.81). But:

"proof that the false pretence operated on the mind of the prosecutor need not in every case be afforded by the direct evidence of a witness to that effect, if the facts are such that the alleged false pretence is the only reason which could be suggested as having been the operative inducement. R. v. Sulivan, 30 Crim App. R. 132".

Thus, after reviewing the evidence the learned Magistrate deals with the essential elements of the offence particularly the element of "intent to defraud". The false pretence need not be by words; the conduct and acts of the party will be sufficient: R v. BARNARD 7 C & P 784. Here apart from the words the conduct was also sufficient to find the ingredients of the offence proved.

The Manager of N.L.T.B. said that there was no such land to be sold and he suggested to some of the complainants to report the matter to police. The appellant promised to pay back the money when he was taken to the Police Station. Similarly, he returned the money to complainant Chandrika Prasad but the cheque was dishonoured on presentation. The appellant's employer Chandrika Prasad Garib also reported to police about the appellant using his official receipt book collecting from the complainants and not accounting to him for it.

On the evidence before him the learned Magistrate found that there was intent to defraud on the part of the appellant when he stated on page 81 of the Record thus:-

"As regards the element of intent to defraud, I have shown earlier (vide supra) how the accused had made the false representation to the complainants that land was available for sale or lease in the Korosomosomo area when in actual fact land was not available and obtained money from them by false pretences. It was also shown that the accused should have known the fact that no such land was available at the time. When these facts taken together and considered the accused's intent to defraud the person concerned is obvious for he knew that there was no land available and that he was not in a position to secure these land."

These are his specific findings of fact on the evidence before him.

The intent to defraud "is an essential ingredient of the offence, though in many cases it may be inferred from the facts of the case": (R v FERGUSON, 9 Cr. App. R. 113). Where money is obtained by pretences that are, prima facie, false, there is an intent to defraud: (R v HAMMERSON, 10 Cr. App. R. 121). As the learned Magistrate said this essential element has been satisfied. There is evidence also that the appellant had "intention to pay" but that will not afford a defence to the charge he still has an intent to defraud. In this regard I refer to the following passage from ARCHBOLD 36th Ed. paragraph 1962 which is apt:

"1962. Intention to pay. The fact that the prisoner at the time when he obtained goods by false pretences intended to pay for them when it should be in his power to do so affords no defence to an indictment for obtaining such goods by false pretences: R . v. Naylor, L.R. 1 C.C.R. 4. If a man makes statements of fact which he knows to be untrue, and makes them for the purpose of inducing persons to deposit with him money which he knows they would not deposit but for their belief in the truth of his statements, and if he intends to use the money thus obtained for purposes different from those for which he knows the depositors understand from his statements that he intends to use it, then, although he may intend to repay the money if he can, and although he may honestly believe, and may even have good reason to believe, that he will be able to repay it, he has an intent to defraud: R. v. Carpenter, 76 J.P. 158, approved in R. v. Kritz [1950] 1 K.B. 32; 33 Cr. App. R. 169."

In R v. CARPENTER (1911) 76 J.P. 158 CHANNELL, J in directing the jury said, inter alia, (quoting from R v. KRITZ 1949 2 AER 406 at 409):

"... you may by fraud get hold of money, even if you mean to repay it, and thoroughly believe that you can repay it - you are still defrauding the depositor."

In WELHAM v DIRECTOR OF PUBLIC PROSECUTIONS (1961) AC 135 at 133 LORD DENNING said:

"Put shortly "with intent to defraud" means "with intent to practice a fraud" on someone or other. It need not be anyone in particular. Someone in general will suffice. If anyone may be prejudiced in any way by the fraud, that is enough."

The learned Magistrate has set out quite clearly his reasons for coming to the conclusions to which he did including why he rejected the appellant's evidence. The learned Magistrate was entitled to find as he did on the evidence before him and convict the appellant. The appellant was therefore properly convicted on the various counts.

I therefore do not find any merit in the grounds of appeal on conviction.

For the above reasons the appeal against conviction on each of the six counts fails and is therefore dismissed.

I shall now deal with the appeal against sentence on the ground that it is harsh and excessive.

The appellant was sentenced to three years' imprisonment on each of the six counts to be served concurrently. The maximum sentence for this offence is five years' imprisonment. Although he has six previous convictions, the only relevant one akin to the present offence namely forgery etc was in 1983 when he was merely fined $20.00. This the learned Magistrate noted. For all intents and purposes for sentencing in this case he could be regarded as a first offender. Looking at all the surrounding circumstances in this case, and bearing in mind that the complainants are known to the appellant or are his relatives and his intention even at this stage to repay the sums involved, the sentence is on the high side. May be this sentence was passed because the learned Magistrate formed a firm opinion that the appellant was a "danger to society" as he said. The learned Magistrate, however, was quite right in treating the offence as serious. But the question of length of sentence in the light of sentences meted out in such cases a less severe sentence is warranted. Just to refer to some cases, the sentences in such cases have been: MORARI LAL (CRIM APP 7/79 F.C.A) reduced from 18 months to 12 months; BRIJ NAND MAHARAJ (Crim. App. 132/77 F.C.A) reduced from 4 years to 3 years (last convictions of this nature was 10 years ago); ILAITIA MATADRADRA and REGINAM (Crim Appeals Nos 49 & 50/74, High Court) 15 months varied so that the term of imprisonment would be suspended for 2 years.

Therefore, without in any way suggesting that the learned Magistrate applied a wrong principle in assessing the sentence, yet in view of the maximum term fixed by law, I am of the view that the sentence of 3 years' imprisonment is, in all the circumstances of the case, excessive to some degree.

For the reason given hereabove by virtue of the powers conferred in this Court by s319 of the criminal procedure code I will allow the appeal against sentence.

The sentence of 3 years' imprisonment imposed on counts 1 to 6 respectively is set aside and in lieu thereof a sentence of two years' three months imprisonment on each count is substituted. The sentences are to run concurrently.

D. Pathik
Judge
At Labasa
30 March 1995
HAA0032J.94B