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State v Dutt [2010] FJMC 138; CRC1568.2007 (30 November 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 1568 of 2007

STATE

V

NIRMALA DUTT d/o Jay Narayan
MARYLL CHAND d/o Jai Chand

For Prosecution: Mr. Daurewa J (DPP Office)
For both Accused: Ms. Savou (Legal Aid)
Date of Judgment: 30th November 2010

JUDGMENT

1. This case is for judgment today. All the prosecution evidence had lead before another magistrate where that magistrate overruled the 'no case to answer' submission by the accused persons. Both accused gave evidence before me.
   
2. Both Accused persons are charged with one count of "obtaining money by false pretence".
   
3. Since the previous magistrate had decided that there is a case to answer by the accused persons it is my duty to see whether both accused persons were successful in creating a doubt in the prosecution case by their defence. If the accused successful in establishing that there is a reasonable doubt to the satisfaction of the Court, then the prosecution must fail.
   
4. Previous magistrate who heard the case was of the view that "from the circumstantial evidence, the manner in which the two accused had conducted themselves and the indispensable links in the chain of event it could be inferred that two accused had intended to defraud the Complainant and that they had obtained money for their benefit or for the benefit of others".
   

Evidence of the first accused

5. Accused gave evidence on oath. According to the accused she had met one girl named Praveena at Pizza King who is known to the second accused. Accused repeatedly said in Court that Praveena was a stranger to her. This Praveena had informed both accused that she could arrange visa for any one who is willing to go abroad.
   
6. When both accused came back from Pizza King the complainant had inquired whether they know anyone who could arrange visa for him. Then first accused had informed the complainant that the second accused has such a friend. Together both accused had introduced Praveena to the complainant. Accused had witnesses the complainant giving $110 and his passport to Praveena. Accused re-iterated the fact that she had never took any money from the complainant.
   
7. According to the accused Praveena used to call her or the second accused as the complainant did not have any telephone contacts. Accused admitted introducing the complainant to Praveena.
   
8. During cross-examination accused admitted that the complainant gave money to Praveena in front of both accused and she had counted the money to see whether the amount was correct.
   

Evidence of the second accused

9. According to the accused Praveena was her friend and she had introduced her to the complainant and to the first accused. Second accused denied the knowledge about $2350 or the visa. Accused said that she never pretended to organize visa for the complainant.
   
10. During the cross-examination accused admitted witnessing the complainant giving an envelope to the first accused. When the accused inquired from the complainant what it was, complainant had informed that there was $400 inside the envelope to be given to Praveena.
    
11. According to the accused, after receiving that $400 from the complainant, the first accused had given her and Praveena $100 each. Accused considered that $100 as a loan she had requested from the first accused sometimes back and said that she paid that $100 back to the first accused.
    
12. Accused further said that she with the first accused met Praveena and the complainant during their lunch break few times and in some occasions other three had met without her presence. However, accused refused to accept any knowledge about the alleged fraud.
    

Analysis

13. When considering the evidence of first and second accused, it is clear that even though they maintained a consistent story regarding the meeting with Praveena both accused contradict each other regarding the issue of money exchanged between the complainant and the first accused.
    
14. According to the second accused, the first accused not only had obtained $400 from the complainant but had distributed $100 each amongst Praveena and to the second accused.
    
15. This aspect revealed during the prosecution case and first accused had failed to give an explanation regarding her conduct. Therefore, it is safe to conclude that first accused had kept some amount of money to herself which is given to her by the complainant.
    
16. First accused in her cautioned interview had admitted obtaining $320 from the complainant and sharing it with the second accused and Praveena. Cautioned Interview notes were not challenged.
    
17. According to the evidence of the complainant, on 01st September 2004 Praveen had called him and asked him to get his passport. He met both accused and Praveena at Pizza house and they told the complainant not to open his passport after obtaining $400 from the complainant. When the complainant opened the passport he found that there is no visa. By that time complainant had found the others had run away from the scene.
    
18. This piece of evidence had never subjected to cross-examination and never denied by both accused.
    
19. According to the written closing submission filed by the counsel for the accused "a promise to provide something in future is not a false pretence, it has to be about an existing or past fact". To support the argument following cases had been cited by the counsel. Ramesh Chand v. State [2004] FJHC; HAA 003 of 2004 [12th Mach 2004] and Fazir v. State [Unreported] HAA 25 of 2008 [Labasa High Court].
    
20. Unchallenged evidence of the complainant revealed that on 01st September 2004, he had received his passport from Praveena and other two accused. They have asked the complainant not to open the passport.
    
21. Return of the passport symbolized the final act between parties. Therefore, the argument advanced on behalf of the accused is without merit.
    
22. Evidence at hand in this case clearly demonstrates the fact that both accused had acted together with Praveena. There is no doubt that the missing accused Praveena is the main culprit of this incident. However, it is clear from above-mentioned findings that both the first and second accused have acted in joint enterprise to fulfil the crime.
    
23. Based on the above-mentioned grounds I decide that both accused failed to create a doubt in the prosecution case as required by the law. I find both accused persons guilty as charged.
    

On this Tuesday the 30th day of November 2010

Kaweendra Nanayakkara
Resident Magistrate.