Magistrates Court of Fiji

"the decision as to whether or not there> a case to answer&#16r shoupend not so much onch on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. In other words, at the close of the prosecution case the Court should adopt an objective test as distinct from the ultimate subjective test to be adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence".

The Prosecution Witnesses Evidence

The Prosecution called 5 witnesses. The Caution Interview and Charge Sheets were tendered by consent.

The Elements of the Offence

Section 350 of the Penal Code Provides as follows: "Any person who, by means of any false and fraudulent representations as to the nature, contents or operation of a document, procures another to sign or execute the document, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had forged the document."

The elements of the offence are as follows:

(i) The accused,
(ii) By means of any false and fraudulent representation as to the nature, contents or operation of a document,
(iii) Procured another to sign or execute the document.

Analysis

This Court has noted all the evidence and the documents that were tendered in this Court. Having considered the evidence of the prosecution witnesses, the Court at this stage is not so much concerned at this stage on conviction or acquittal but on whether the evidence is such that the Court properly directing its mind to the law and the evidence could or might convict on the evidence so far laid before it. From the evidence tendered in Court at the close of the prosecution case the Court has adopted an objective test as distinct from the ultimate subjective test as adopted at the close of the trial.

The prosecution case was based on the premise that the accused did not have legal authority to issue notice for the seizure of the items from K Naidu Investment Proprietary Limited. This Court has noted the High Court decision in K Naidu Investments Proprietary Limited v. Merchant Finance and Investment Limited, HBC 333.2009 where the Plaintiff conceded that there was no requirement to give notice for the seizure of the assets.
This Court has laid out the elements of the offence for ease of reference. The prosecution needed to prove that the accused person, Lalin Chand on the specified dates, by means of any false and fraudulent representation as to the nature, contents or operation of a document, procured another to sign or execute the document. In this case the other persons that the accused is alleged to have made false and fraudulent representations and procured them to sign or execute the documents were Nitya Ram and Shailesh Kumar.

As the Plaintiff Company was not required to give any notice for the seizure of the assets, the accused, Lalin Chand, as Manager of Merchant Finance was not required to give any notice for the seizure of the assets in the event of default by the complainant. From the evidence in Court the Complainant Company defaulted in payments to Merchant Finance and the assets were lawfully seized. Mr Naidu in Court admitted default in re-payments to Merchant Finance. There was no false or fraudulent representation by the accused as he acted lawfully and in the best interest of his employers (Merchant Finance). From the evidence in Court of the prosecution witnesses, Lalin Chand was in position of authority to seek that the assets be seized to protect the interest of Merchant Finance.

The prosecution contended that the accused failed to follow procedures as laid down in the Standard Operation Manual of Merchant Finance. These procedures were for the Merchant Finance and as such internal procedures which guided its staff and management. If a staff or management does not follow these procedures these are internal matters for Merchant Finance to investigate and discipline staff if there are breaches of those procedures. Merchant Finance will be in a position to also seek criminal investigation if there is criminal element involved and laid down procedures have been criminally breached. According to the prosecution witnesses this was not the case. The accused, Lalin Chand was the Branch Manager and he had authority to seek re-possession of assets to protect the interests of the Finance Institution.

The wording of the section 350 of the Penal Code is related to forgery and the words "procures another to sign or execute the document" upon reading of the section does not mean to carry out the intentions of the document, such as the execution of the bailiff notice. It in fact refers to the signing of the document or due performance of all formalities to give validity to the document. As the charge is framed and laid it is alleged that the accused by false and fraudulent representations procured Nitya Ram and Shailesh Kumar to execute bailiff authorization notice against K Naidu Investments Propreitory Limited for seizure of security assets as annexed in the Bill of Sale dated 30th May 2007 under Loan Contract Number PA1155965 with Merchant Finance and Investment Company Limited, which in fact refers to the carrying out of the instructions of the Bailiff notice.

No evidence was tendered in Court that the accused, Lalin Chand made any false or fraudulent representation to Nitya Ram and Shailesh Kumar to execute (sign) the Bailiff notice. In fact the Bailiff notice was issued by Merchant Finance and the Bailiffs where charged with the execution (service and delivery) of the notice. The Prosecution has misconstrued the term execute in this case and wrongly interpreted it. In any event, the accused did not procure Nitya Ram and Shailesh Kumar by any false or fraudulent means to sign the Bailiff notice for seizure of the assets.

This Court finds that there has been no evidence to prove the essential elements of the alleged offence and also that the evidence adduced by the prosecution, mainly PW-1 has been so discredited as the result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. The evidence in this case does not support the charge laid against the accused to sufficiently require him to make a defence.

This Court finds that the accused has no case to answer. Accused is acquitted. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
9th May 2013