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State v Lal [2006] FJMC 10; Criminal Case No 385 of 2002 (16 June 2006)

IN THE FIRST CLASS MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION


CRIMINAL CASE NO.: 385 OF 2002


STATE


V


ANISH NAVIN LAL s/o Ishwari Lal


For Prosecution: Inspector Mr A. Prasad
For Accused: Mr Rajesh Gordon


Date of Hearing: 13/03/06, 17/03/06, 04/04/06
Date of Judgment: 16/06/06


JUDGMENT


The accused is charged with eight counts of Larceny by Servant. The charges read as follows:


FIRST COUNT


Statement of Offence (a)


LARCENY BY SERVANT: Contrary to section 274(a) (i) of the Penal Code, Cap. 17.


Particulars of Offence (b)


ANISH NAVIN LAL s/o Ishwari Lal, between the 1st day of December, 2001 and 3rd day of December, 2001 at Lautoka in the Western Division being servant of Ramesh Investment Limited, stole from the said Ramesh Investment Limited, $7,000.00 in monies.


SECOND COUNT


Statement of Offence


LARCENY BY SERVANT: Contrary to section 274(a) (i) of the Penal Code, Cap.17.


Particulars of Offence


ANISH NAVIN LAL s/o Ishwari Lal, between the 13th day of December 2001 and 14th day of December, 2001 at Lautoka in the Western Division, being servant to Ramesh Investment Limited, stole from the said Ramesh Investment Limited, $2,000.00 in monies.


THIRD COUNT


Statement of Offence (a)


LARCENY BY SERVANT: Contrary to section 274(a) (i) of the Penal Code, Cap.17.


Particulars of Offence (b)


ANISH NAVIN LAL s/o Ishwari Lal between the 23rd day of December, 2001 and 27th day of December, 2001 at Lautoka in the Western Division, being servant to Ramesh Investment Limited, stole from the said Ramesh Investment Limited, stole from the said Ramesh Investment Limited, $19,000.00 in monies.


FOURTH COUNT


Statement of Offence


LARCENY BY SERVANT: Contrary to section 2749(a) (i) of the Penal Code, Cap. 17.


Particulars of Offence


ANISH NAVIN LAL s/o Ishwari Lal, between the 7th day of February, 2002 and 8th day of February, 2002 at Lautoka in the Western Division being servant to Ramesh Investment Limited stole from the said Ramesh Investment Limited, $70.78 cents in monies.


FIFTH COUNT


Statement of Offence (a)


LARCENY BY SERVANT: Contrary to section 274(a) (i) of the Penal Code, Cap. 17.


Particulars of Offence (b)


ANISH NAVIN LAL s/o Ishwari Lal, between 15th day of February, 2002 and 18th day of February, 2002 at Lautoka in the Western Division, being servant to Ramesh Investment Limited, stole from the said Ramesh Investment Limited, $199.12 cents in monies.


SIXTH COUNT


Statement of Offence


LARCENY BY SERVANT: Contrary to section 274(a) (i) of the Penal Code, Cap. 17.


Particulars of Offence


ANISH NAVIN LAL s/o Ishwari Lal between the 20th day of February, 2002 and 21st day of February, 2002 at Lautoka in the Western Division, being servant to Ramesh Investment Limited, stole from the said Ramesh Investment Limited, $300.00 in monies.


SEVENTH COUNT


Statement of Offence (a)


LARCENY BY SERVANT: Contrary to section 274(a) (i) of the Penal Code, Cap. 17.


Particulars of Offence (b)


ANISH NAVIN LAL s/o Ishwari Lal between the 2nd day of March, 2002 and 4th day of March, 2002 at Lautoka in the Western Division, being servant to Ramesh Investment Limited, stole from the said Ramesh Investment Limited, $3,535.28 cents in monies.


EIGHTH COUNT


Statement of Offence


LARCENY BY SERVANT: Contrary to section 2749(a) (i) of the Penal Code, Cap. 17.


Particulars of Offence


ANISH NAVIN LAL s/o Ishwari Lal between the 7th day of March, 2002 and 8th day of March, 2002 at Lautoka in the Western Division, being servant to Ramesh Investment Limited, stole from the said Ramesh Investment Limited, $319.28 cents in monies.


The prosecution alleges that the accused stole a sum of $32,424.46 which is contained in the above eight counts. The burden of proof is upon the prosecution to prove beyond all reasonable doubt that the accused was employed by Ramesh Investment Limited (Company) and he stole the said sum of $32,424.46.


It is not in dispute that the accused was employed as head cashier between 01/12/01 to 07/03/02 the alleged dates of larceny as contained in counts 1 - 8. The accused commenced employment with the company on 03/07/97 as head cashier and he was suspended on 12/03/02.


Only two witnesses gave evidence in this case namely Rina Devi (PW1) who was employed as an auditor by the company and Rajesh Nand (PW2) who was employed as a security officer. The statements of the following witnesses were tendered by consent:


  1. Rajesh Singh – two statements dated 18/03/02 (Exhibit P4) and 09/04/02 (Exhibit P5) and 22/04/02 (Exhibit P6)
  2. Statement of Asha Lata dated 18/06/02 (Exhibit P7)
  3. Statement of Salochna Devi dated 18/06/02 (Exhibit P8)
  4. Statement of Santohoshni Reddy dated 18/06/02 (Exhibit P9)
  5. Statement of Pravina Singh dated 18/06/02 (Exhibit P10)
  6. Statement of Nur Nazrin Nisha dated 18/06/02 (Exhibit P11)
  7. Statement of Rahina Shariff dated 18/06/02 (Exhibit P12)
  8. Statement of Pranjita Pritika Chand dated 18/06/02 (Exhibit P13)
  9. Statement of Margeret. T. Brown dated 28/08/02 (Exhibit P14)
  10. The following exhibits were annex to the statement of Margeret .T. Brown which are bank deposit slips:
    1. Bank deposit slip dated 01/12/01 marked as (Exhibit P15 (a))
    2. Bank deposit slip dated 13/12/01 marked as (Exhibit P15 (b))
    1. Bank deposit slip dated 24/12/01 marked as (Exhibit P15 (c))
    1. Bank deposit slip dated 07/02/02 marked as (Exhibit P15 (d))
    2. Bank deposit slip dated 15/02/02 marked as (Exhibit P15 (e))
    3. Bank deposit slip dated 20/02/02 marked as (Exhibit P15 (f))
    4. Bank deposit slip dated 02/03/02 marked as (Exhibit P15 (g))
    5. Bank deposit slip dated 09/03/02 marked as (Exhibit P15 (h))
  11. Statement of Ragho Reddy dated 27/01/03 (Exhibit P16)
  12. Statement of Shyam. S. Sharma dated 27/01/03 (Exhibit P17)

The following documents were also tendered by consent:


  1. Record of Interview of Anish Navin Lal dated 08/04/02 as (Exhibit P1)
  2. Record of Interview of Anish Navin Lal dated 22/04/02 as (Exhibit P2)
  3. Charge Statement of Anish Navin Lal as (Exhibit P3)
  4. Cash Register Summary Sheet dated 01/12/01 as (Exhibit P18)

Deposit Slip dated 01/12/01 as (Exhibit P18 (a))


Bank Statement dated 03/12/01 as (Exhibit P18 (b))


  1. Cash Register Summary Sheet dated 13/12/01 as (Exhibit P19)
  2. Bank Deposit Slip dated 13/12/01 as (Exhibit P19(a))
  3. Bank Statement dated 14/12/01 as (Exhibit P19(c))
  4. Cash Register Summary Sheet dated 23/12/01 as (Exhibit P20(a))
  5. Cash Register Summary Sheet dated 24/12/01 as (Exhibit P20(b))
  6. Bank Deposit Slip dated 24/12/01 as (Exhibit P20(c))
  7. Bank Statement dated 27/12/01 as (Exhibit P20(d))
  8. Cash Register Summary Sheet dated 07/02/02 as (Exhibit P21)
  9. Bank Deposit Slip dated 07/02/02 as (Exhibit P21(a))
  10. Bank Statement dated 08/12/02 as (Exhibit P21(b))
  11. Cash Register Summary Sheet dated 15/02/02 as (Exhibit P22)
  12. Bank Deposit Slip dated 15/02/02 as (Exhibit P22(a))
  13. Bank Statement dated 18/02/02 as (Exhibit P22(b))
  14. Cash Register Summary Sheet dated 20/02/02 as (Exhibit P23)
  15. Bank Deposit Slip dated 20/02/02 as (Exhibit P23(a))
  16. Bank Statement dated 21/02/02 as (Exhibit P23(b))
  17. Cash Register Summary Sheet dated 02/03/02 as (Exhibit P24(a))
  18. Bank Deposit Slip dated 02/03/02 as (Exhibit P24(b))
  19. Bank Statement dated 04/03/02 as (Exhibit P24(c))
  20. Cash Register Summary Sheet dated 07/03/02 as (Exhibit P25)
  21. Bank Deposit Slip dated 07/03/02 as (Exhibit P25(a))
  22. Bank Statement dated 08/03/02 as (Exhibit P25(b))

The accused upon completion of the prosecution case elected to remain silent and did not call any witnesses on his behalf.


The company’s practice was that at the end of a business day all the cashiers collected the cash from their cash registers and put the cash in separate money boxes and handed over the boxes to the accused for safe keeping overnight and the following morning all the cashiers used to sit with the accused and hand over the cash to him and the accused used to acknowledge receipt of the cash by issuing a receipt for the amount that he received. The accused then prepared the Cash Register Summary Slips which has been exhibited above and then prepared the banking.


The Cash Register Summary Slips had amongst other columns had the following columns:


  1. Prepared by
  2. Audited by
  3. Approved by.

It is quite clear that the company’s accounting system was not very professional at all as some of the Cash Register Summary Slips have not been audited and most of the columns where it stated prepared by or approved by has been left blank. Also there appears to be a serious flaw in the auditing of the accounts of the company. According to PW1 she carried out the auditing in January 2002 and found some short banking but she was unable to ascertain the exact amount of short banking until 18/03/02. On 18/03/02 Rajesh Singh in Exhibit P4 stated that a total sum of $28,100.00 has not been deposited into the company’s account and this led to the accused being interviewed in respect of counts 1 - 3.


This information was not correct as Rajesh Singh in Exhibit P5 stated that a further sum of $4,085.45 was not deposited in the company’s account. As a result of the flaw in the company’s accounting system and its failure to ascertain the exact figures not banked the accused was subjected to two sets of caution interviews. The first interview took place on 08/04/02 (Exhibit P1) and the second one on 22/04/02 (Exhibit P2) both caution interviews were conducted by DC 938 Sharma. In the first record of interview the accused stated that the sum of $28,100.00 was stolen by Rajesh Nand (PW2) and in the second one the accused chose to remain silent.


Now I shall discuss the evidence tendered by the prosecution with respect to each count.


Count 1


The prosecution tendered the following documents by consent:


  1. Exhibit P18
  2. Exhibit P18(a)
  3. Exhibit P18(b)

Exhibit P18 shows an amount of $15,278.15 as total cash banking and Exhibit P18(a) shows an amount of $8,278.15 as deposited on 03/12/01 and both Exhibit P18 and P18(a) bear the date 01/12/01 which would suggest that the banking was done some two days later. Exhibit P18 (b) shows an amount of $8,278.15 and it does not show the date of banking except that it shows the total of twelve different amounts of deposits with some notes being made in pencil stating Namoli, Naviti, Plaza and F/Hall.


Exhibit P18 has a sum of $5.67 written in red as short cash. In Exhibit P14 Margeret. T. Brown the Customer Services Manager stated as follows "This is to confirm that the following deposits made of cash and cheques were accepted by our tellers and credited to the account of Ramesh Investments account number "0376900800" on respective dates shown on the deposit slips.


Date
Amount
01/12/01
$8,278.15
14/12/01
7,530.74
27/12/01
8,983.67
07/02/02
8,338.29
15/02/02
8,947.05
21/02/02
4,249.63
02/03/02
9,000.00
07/03/03
6,049.69

Exhibit P18 (a) shows that the date of deposit in the sum of $8,278.15 is on 03/12/01 and not 01/12/01 as suggested by Margeret. T. Brown.


Count 2


The following documents were tendered by consent:


  1. Exhibit P19
  2. Exhibit P19(a)
  3. Exhibit P19(b)

Exhibit P19 shows short banking in red of $0.51. It does not state as to who was it prepared by nor does it states as to who was it approved by except that it was audited by somebody and total cash banking is $9,516.74 and Exhibit P19 (a) also shows total amount bank was $7,536.74 and Exhibit P19 (b) shows an amount of $7,536.74 as being deposited whilst Exhibit P14 (a) (statement of Margeret. T. Brown) shows an amount of $7,530.74 as being deposited which has a different of some $6.00. I am not at all sure as to whether we are talking about the same banking as contained in Exhibit P19(a) or whether we are talking about some other banking.


Count 3


The following documents were tendered:


  1. Exhibit P20(a)
  2. Exhibit P20(b)
  3. Exhibit P20(c)
  4. Exhibit P20(d)

Exhibits P20 (a & b) show an amount of $5,193.50 and $22,890.17 as total cash banking and Exhibit P20 (a) shows an amount of $0.01 short banking and Exhibit 20(b) shows an amount of $0.85 short banking and Exhibit 20(c) dated 24/12/01 shows an amount of $8,983.67 as amount deposited and Exhibit P20 (d) shows an amount of $8,983.67 as deposited together with other numerous deposits. This deposit was made on 27/12/01 and Exhibit P14 also states that it was deposited on 27/12/01.


Count 4


The following documents were tendered:


  1. Exhibit P21
  2. Exhibit P21(a)
  3. Exhibit P21(b)

Exhibit P21 shows an amount of $8,409.27 as total banking and it shows an amount of $2.53 as short banking and it was prepared by Anish and audited by Arti and does not say who it was approved by.


Exhibit P21 (a) dated 07/02/02 shows an amount of $8,338.29 which was deposited on 08/02/02 and Exhibit P21 (b) shows an amount of $8,338.29. Exhibit P14 states that $8,338.29 was deposited on 07/02/02 and not on 08/02/02 as it is stated on Exhibit P21(a) again I do not know whether Margeret .T. Brown is referring to the same banking as contained in Exhibit P21(a) or as to whether she is referring to some other deposits


Count 5


The following documents were tendered by consent:


  1. Exhibit P22
  2. Exhibit P22(a)
  3. Exhibit P22(b)

Exhibit P22 shows an amount of $9,146.17 as total cash banking and it shows an amount of $11.07 as short cash and it is not stated as to who this was prepared by and approved by except that it was audited by Vikashni.


Exhibit P22(b) dated 15/02/02 with an amount of $8,947.05 as deposited on 15/02/02 and Exhibit P22(a) shows an amount of $8,947.05 as being deposited together with numerous other cash deposits.


Count 6


The following documents were tendered by consent:


  1. Exhibit P23 Cash Register Summary Sheet
  2. Exhibit P23(a) Deposit slip dated 20/02/02
  3. Exhibit P23(b) Bank Statement dated 21/02/02

Exhibit P23 shows an amount of $4,549.62 as total cash banking and shows a short cash of $23.20 and it shows that was it prepared by Anish and audited by somebody and does not say who it was approved by. Exhibit P23 (a) dated 20/02/02 shows an amount of $4,249.62 as deposited on 21/02/02 and Exhibit P23 (b) shows an amount of $4,249.62 as deposited together with numerous other deposits.


Count 7


The following documents were tendered by consent:


  1. Exhibit P24(a) Cash Register Summary Sheet
  2. Exhibit P24(b) Deposit slip dated 02/03/02
  3. Exhibit P24(c) Bank Statement dated 04/03/02

Exhibit P24 (a) shows an amount of $12,535.58 as total cash banking and shows a short cash of $123.75 and it shows that it was prepared by Anish and audited by Arti and does not say who was it approved by. Exhibit P24(b) dated 02/03/02 shows an amount of $9,000.00 as deposited on 04/03/02 and Exhibit P24(c) shows an amount of $9,000.00 as deposited together with numerous other deposits.


Count 8


The following documents were tendered by consent:


  1. Exhibit P25 Cash Register Summary Sheet
  2. Exhibit P25(a) Bank Statement dated 08/03/02
  3. Exhibit P25(b) Deposit slip dated 07/03/02

Exhibit P25 shows an amount of $6,368.97 as total cash banking and shows a short cash of $0.28 and it shows that it was prepared by Arti and audited by Kunal and does not say who was it approved by. Exhibit 25(b) dated 07/03/02 shows an amount of $6,049.69 as deposited on 08/03/02 and Exhibit P25 (a) shows an amount of $6,049.69 as deposited together with numerous other deposits. Exhibit P25 as I said earlier was prepared by Arti and further almost all the entries on Exhibit P25 has been white inked and is therefore not a safe document on which I can place much reliance.


In the record of interview the accused denied stealing the sum of $28,100.00 which is the amount shown in counts 1-3 (count 1 a sum of $7,000.00, count 2 a sum of $2,000.00 and count 3 a sum of $19,100.00).


With respect to count 1 the accused in his record of interview said as follows in questions and answers 21 – 31 which reads as follows:


Q.21 After preparing the banking then what you do with the money?

A. Send it to the main shop.


Q.22 What were you doing with the receipt?

A. I prepare summary and send it to head office for auditing.


Q.23 Look at summary of 01/12/01. How much money did you receive from the cashiers’ on 01/12/01?

A. $16,578.92.


Q.24 What was the amount you prepared for banking for this day?

A. Cash $8,278.15 and handycard to the total of $9,578.82. (Gave answer after referring to deposit voucher.


Q.25 When you received $16,578.72 why you only prepared $9,578.82 for banking?


A. At the time, I was preparing banking our security guard Rajesh Nand came into my office with a dagger and took $7,000.00 after threatening me not to tell anyone.


Q.26 Who all were in your office at the time Rajesh came in your office?

A. No one.


Q.27 What time was it?

A. 9.15 a.m.


Q.28 Did you raise alarm or call your boss about it?

A. No.


Q.29 Why did not you report to police?

A. I was frightened of him.


Q.30 What about now, aren’t you frighten of him?

A. Yes, I am frighten.


Q.31 It is alleged that you yourself took that $7,000.00. Is it true?

A. No.


With respect to count 2 the accused in his record of interview is stated as follows in questions and answers 32 – 36 which reads as follows:


Q.32 Look at the summary for 13/12/01. How much money did you receive from the cashier? (showed the summary)

A. $11,769.75.


Q.33 How much money you prepared for banking?

A. Cash $7,536.74 and handycard to the total $9,769.75.


Q.34 What happened to the rest $2,000.00?

A. I kept the money in $5.00 and $2.00 notes in the safe for use of cashier.


Q.35 You suppose to bank this money too, is it true?

A. Yes.


Q.36 Why did not you do the banking?

A. Because I did not have enough money for float that is why I used it to buy vegetables too.


With respect to count 3 the accused in his record of interview in questions and answers 37 – 50 stated as follows and which reads as follows:


Q.37 Look at summary for 23/12/01, how much money you received from the cashier?

A. $5,545.42.


Q.38 Look at the summary for 24/12/01, how much money did you receive from the cashier?

A. $25,712.00.


Q.39 How much money you have prepared for banking?

A. Cash $8,983.67 and with handycard the total of $12,157.42.


Q.40 Where is the entry for $2,000.00. What you kept on 13/12/01?

A. I did not make it.


Q.41 Why you prepared short banking?

A. Because security officer Rajesh Nand came and took the money on 27/12/01 in the morning after threatening me with the dagger.


Q.42 Did you tell anyone about this or report to police?

A. No.


Q.43 Why didn’t you tell anyone?

A. He was threatening me every morning on phone.


Q.44 If you were frighten of Rajesh, why you are telling me now?

A. I have told Rajesh in front of my father.


Q.45 Did you tell your father on the date of the incident?

A. No.


Q.46 It is alleged that you stole total of $28,100.00 from Ramesh Investment and now giving the false story, is it true?

A. No.


Q.47 Where is you office in Food Plaza?

A. Upstairs.


Q.48 Do you have a lock to the door?

A. Yes.


Q.49 Why didn’t you lock the door?

A. I locked the door but when Rajesh comes to ask for change then I had to open it.


Q.50 When Rajesh took $7,000.00 on first day, did you take any precautions about it?

A. No.


With respect to first 3 counts the accused gave two different explanations. For counts 1 and 3 he raised the defence of duress and for count 2 he stated that the money was used for cashier’s cash flow and that he used the same later for buying of vegetables and he failed to make a record in the sum of $2,000.00.


With respect to counts 4 – 8 the accused was caution interviewed on 22/04/02 wherein it was stated that he stole a further sum of $4,344.46. This caution interview was conducted by DC Sharma on the basis of the information provided by Rajesh Singh in Exhibit P5 in which he stated as follows:


  1. That Rajesh Nand (PW2) did his last duty on 01/12/02;
  2. That the accused on 07/02/02, 15/02/02, 20/02/02, 02/03/02 and 07/03/02 did a short banking in the sum of $4,085.45 whereas in the caution interview DC Sharma has stated that a sum of $4,344.46 was stolen (the difference is $259.01).

The accused was subjected to quite vigorous cross-examination by DC Sharma in the second record of caution interview about the answers he gave in the first record of interview. The counsel for the accused did not take any objections to the tendering of the record of interview dated 22/04/02 and I suspect that he may have done it purposely but what worry's me is that the line of questioning by DC Sharma was in breach of Judges Rule No. 7. Since the accused was subjected to cross-examination by DC Sharma I guess he is bound by the answers that he received as he was unable to establish that Rajesh Nand’s (PW2) employment came to an end on 01/12/01 as this is in direct conflict with the evidence of Rajesh Singh in Exhibit D5 in which he stated that Rajesh Nand commenced work for the company on 14/12/00 and resigned on 01/12/02.


Rajesh Nand’s (PW2) evidence is that he resigned on 01/12/01 and his evidence is again in direct conflict with the evidence of Rajesh Singh. Exhibit P5 was tendered by the prosecution by consent and they are bound by its content.


Rina Devi (PW2) was employed as an auditor by the company. As a result of her auditing the short banking came to light. She was unable to say as to who had the keys to the shop after it was closed but she said that the shop manager closed the shop. She was also unable to say as to whether he had access to the safe. She said that a telephone operator by the name of Salote who was also doing auditing and a person by the name of Saheel were terminated as a result of her investigations. She was not sure if these two persons were charged for any criminal offences.


Rajesh Nand (PW2) was the security officer employed by the company. He said that his employers knew about his criminal history and his previous convictions was tendered by consent as Exhibit D1 in which it is stated that he had a total of 25 previous convictions spread over a period of some 20 years from 1980 – 1999. Five previous convictions are for assaults occasioning actual bodily harm and one for common assault and one is for robbery with violence. His previous convictions would suggest that he was a very violent person. He also said that he use to go to the accused to get change for money and his bosses stopped him when the theft occurred and after this the cashiers’ used to go themselves. According to Rajesh Singh in Exhibit P5 the company only became aware of the short banking in mid January 2002 so this would confirm the accuseds’ version that PW1 was still employed when the alleged thefts took place.


The onus as I said earlier is on the prosecution to prove each count against the accused. There are problems with the prosecution’s case which can be summarized as follows:


  1. That the complainant company did not know about its exact amount of loss until 09/04/02 and as a result the accused was interviewed on two separate occasions. First it was suggested to the accused that he stole the sum of $28,100.00. The accused denied stealing and told the police that it was stolen by PW2. In the second record of interview it was suggested that he stole the sum of $4,344.46 when Rajesh Singh said that $4,085.45 was stolen (total $28,100.00 + $4,344.46 = $32,444.46). DC Sharma in his statement dated 27/01/03 which has been tendered as Exhibit P17 stated that a sum of $32,524.96 was stolen.
  2. DC Sharma in his second record of interview suggested that the accused was only employed till 01/12/01 when according to Rajesh Singh it was up to 01/12/02 and therefore the record of interview in my view was conducted in a manner which was grossly was unfair.
  3. There is admission by PW1 that he was stopped by his bosses to collect the change from the accused when the theft occurred. What does this suggest in light of the explanations given by the accused when he was first interviewed?
  4. There is also evidence that two other employees namely Salote and Saheel were terminated as a result of the investigations conducted by PW1 when she was attempting to ascertain the short banking. Why were these two people suspended when they did not do anything wrong?

These are matters for conjecture but it raises serious doubts as to what actually happened and in fairness those doubts have to be resolved in favour of the accused which I hereby do and in the circumstances I acquit the accused in respect of all 8 counts.


[Mohammed Shafiullah Khan]
Resident Magistrate

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