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State v Verma [2013] FJMC 432; Criminal Case 1699 of 2010 (17 April 2013)

IN THE MAGISTRATES COURT
AT SUVA

Criminal Case No. 1699/2010

THE STATE –v- SANJAY SINGH VERMA

Dated: 17^th April 2013
For Prosecution: Ms. Fatiaki [DPP]
For Accused: Mr. Nandan S. with Mr. Chand A. [Defence]

JUDGMENT

1. The accused is being charged with one count of “Forgery” contrary to Section 341(1) of the Penal Code and one count of “Uttering Forged Documents” contrary to Section 343 of the Penal Code. The particulars of the two charges are as follows:

Count 1: On the 10^th day of July 2008 at Suva in the Central Division with intent to defraud forged the signature of Amit Prasad on the Tax Invoice Number 0343 purporting the same to be genuine.

Count 2: On the 10^th day of July 2008 at Suva in the Central Division, knowingly and fraudulently uttered a forged, Tax Invoice Number 0343 at the Small Claims Tribunal, Suva.

2. Upon the accused pleading not guilty to the above two charges, the Hearing commenced on 4^th of April 2013. The accused was represented throughout the Hearing process. Prosecution called four witnesses in support of their case. At the end of the Prosecution’s case, Defence made an application for “No Case To Answer”. The said application was turned down by the Court and the Defence was invited to present the case of the Defence. The charge was then again explained to the accused in terms of Section 179(1)(a) of the Criminal Procedure Decree and enlightened the accused on all his rights and options in terms of Section 179(1)(b) of the Criminal Procedure Decree.
   
3. The learned Defence Counsel then informed court that the accused will remain silent without offering evidence and will not call any witnesses on his behalf. The Defence is mainly relying on the written submission filed in “No Case To Answer” application. The learned Defence Counsel informed that now the court has to see whether the Prosecution has established the charges beyond reasonable doubt and it is totally different from “No Case To Answer” stage. This court fully agrees with the contention of the learned Defence Counsel. The learned Prosecutor did not intend to file any written submission after the Defence case being closed and took up the same stance of relying on the evidence led from the witness box as she did at the “No Case To Answer” stage. Further to the oral submissions of the learned Defence Counsel, he submitted a comprehensive written submission as well and the issues raised by the Defence will promptly address in the foregoing paragraphs.
   
4. In view of the general rule of the Criminal Justice System the accused is presumed to be innocent until otherwise proven by the prosecution and determined by a competent court of law. The proof that a court expects from the prosecution is of the standard of ‘beyond reasonable doubt’. There is no onus, burden or responsibility cast upon the accused at any stage of the Hearing, to prove his innocence or otherwise. Having considered the basic concept of evidential burden on the prosecution in a criminal trial, this court proceeds to discuss the evidence led by the prosecution in the course of the trial.
   
5. The first witness to call by the Prosecution was Mr. Semiti Cakacaka, a Bank Officer of the BSP. He re-called the month of July in the year of 2008 as he received Summons from Small Claims Tribunal (SCT) to attend there to answer to a claim filed by one Sanjay and Babita Verma. Both parties are alleged to be neighbours. Witness identified the accused as Mr. Sanjay Verma (Hereinafter referred as the accused).
   
6. According to the witness, the claim was for $550 for causing damages to the fence and a lamp post of the fence, which repeated for 10 times. Mr. Cakacaka had attended to SCT for the first and second call. Before attending the SCT for the second time, he had gone to meet Mr. Amit Prasad, (who was the 3^rd witness of the Prosecution) to ask about the ‘Invoice’ that he got with the Summons of the SCT, as he wished to verify whether the ‘Invoice’ was true or not. Mr. Prasad (Prosecution witness No. 3) had responded to Mr. Cakacaka saying that he does not have a licence to do residential wiring as he is a Automobile Electrician and therefore he did not do the work mentioned in the ‘Invoice’. Further, Mr. Prasad had denied issuing the ‘Invoice’ in issue which was attached to the Summons of the SCT.
   
7. Then the learned Prosecutor showed Prosecution Exhibit No. 1, Invoice No. 0343 of Amit’s Auto Electricals and the same was positively identified by the witness, Mr. Cakacaka.
   
8. At this point, the learned Defence Counsel submitted to court that “there is no issue of contents in Exhibit No. 1” and their concern is only with the signature on it.
   
9. Before proceeding towards the Cross Examination of Mr. Cakacaka, I now turn to see the ‘Agreed Facts’ tendered to court on 23^rd February 2012 with the signatures of the Counsel of both parties. I reproduce the 6^th, 7^th and 8^th paragraphs of the same for the convenience.

“(6) It is agreed that the Tax Invoice No. 0343 of Amit’s Auto Electrical is an authentic Tax Invoice normally used in the course of its business.

(7) It is agreed that the hand written entries on Tax Invoice No. 0343 of Amit’s Auto Electrical were made by the accused person.

(8) It is agreed that the accused person thereafter used the Tax Invoice No. 0343 when pursuing his claim against the said Semiti Cakacaka in the Small Claims Tribunal”.

10. As the learned Defence Counsel submitted that it was agreed in the “Agreed Facts” as well that the contents of the said Invoice No. 0343 were made by the accused himself. The actual issue in this case, as correctly pointed out by the learned Defence Counsel, is only the ‘signature’ reflected in Invoice No. 0343.
    
11. In Cross Examination, Mr. Cakacaka admitted that he was ordered to pay $760 to the accused by the SCT. Upon failing to adhere to the said order, Mr. Cakacaka was issued with a JDS (Judgment Debtor Summons). Mr. Cakacaka admitted that he filed 2 Affidavits of Mr. Amit Prasad in the Magistrates’ Court proceedings on different occasions. The witness was confronted with two Affidavits, alleged to have sworn on 6^th of April 2010 and (Defence Exhibit No. 2) and 2^nd of December 2009 (Defence Exhibit No. 1). The contention of the learned Counsel was that the witness tendered two Affidavits, containing similar contents, as the earlier Affidavit’s (Defence Exhibit No. 1) signature is much more similar to the signature of the Invoice (No. 0343) in issue.
    
12. It was agreed in the cross-examination that the witness failed at the SCT, Magistrates’ Court and in the High Court in respect of the initial claim made by the accused at the SCT. Mr. Cakacaka admitted that he had already paid $100 to the accused on this claim. The witness was confronted with his written submission filed at the SCT and upon he accepting it; the said written submission was marked as Defence Exhibit No. 3.
    
13. Women Detective Constable 3142 Arieta was the 2^nd witness of the Prosecution. WDC/Arieta testified to the effect that she was instructed by the Crime Officer to interview the accused under Caution and charge him. The Caution Interview had been done in English at the Crime Office of Totogo Police Station. She identified the signatures of the Record of Caution Interview, Prosecution Exhibit No. 2, the 2^nd Agreed document by the Defence along with the Invoice No. 0343 in the “Agreed Facts”. WDC/Arieta was the Investigating Officer of this case as well and she confirmed that she recorded the statements of the witnesses.
    
14. In Cross-Examination, WDC/Arieta admitted that the complainant, Mr. Cakacaka had not seen accused signing the Invoice No. 0343 and there is no evidence against the accused according to the complaint to charge the accused.
    
15. Further, she admitted that it is improper to call the accused for the Caution Interview as there is no evidence against him. But, she claimed that she received instructions from the Crime Officer to do so. She further admitted that in the two statements made by Mr. Amit Prasad to her on 6^th April 2010 and 26^th April 2010, did not tell that he saw accused signing the Invoice in issue or any time, place or date that the alleged incident/signing was done. Finally, the Investigating Officer agreed with the learned Counsel that there is no evidence or positive identification of the accused to charge him, but she did so with the instructions of the Crime Officer. The Investigating Officer confirmed that the ‘Alibi’ put forward by the accused was confirmed by Mr. Ritehswar Lal and his statement was recorded on 6^th of May 2010.
    
16. Mr. Amit Prasad was the 3^rd witness of the Prosecution. He claimed that he is an Auto Electrician for 10 years and at present he runs his garage near ASCO Motors and Bailey bridge. Mr. Prasad confirmed that Mr. Cakacaka came to see him when his garage was at Samabula and showed him a Invoice to verify whether it was done/prepared by him or not. Mr. Prasad has responded negatively. Upon showing Prosecution Exhibit No. 1, Mr. Prasad recognised the same as the Invoice Mr. Cakacaka showed him and it is a Tax Invoice of ‘Amit’s Electricals’, his business.
    
17. Mr. Prasad said a ‘Receipt’ is issued if the customers pay at the same time and ‘Invoices’ are issued if the payments are made at a later stage. He stressed that he did not write anything in Invoice No. 0343 and what it contains is not his ‘signature’. While confirming that it is he who prepares and signs all the Invoices in his company, Mr. Prasad told that he did not prepare this Invoice.
    
18. Mr. Prasad recognized the accused as a good friend of him who brings his vehicles to his garage for repairs. He said that the accused never worked for his company. Witness re-iterated that he knows only electrical issues of vehicles and he never employed anybody to carry out electrical services at houses/residences.
    
19. Mr. Prasad said that he did not see accused signing the Invoice in issue but/he is not at the garage some times and the Invoice Book always remains at the garage. Finally, he said that he did not authorize the accused to get any invoice or sign any invoice of his company.
    
20. In Cross-Examination the witness re-confirmed that he did not see accused signing any Invoice. He could not recall whether he met the accused on 10^th of July 2008, as it was long time back. Mr. Prasad said that the accused was a friend and a customer of him, but stopped coming to his garage after the problem with this ‘Invoice’. When the witness was confronted with questions whether he was paid $1,450 by the accused to repair a vehicle numbered CI/650, he said that he was never paid by the accused as he always came only to check the problems in his vehicles.
    
21. Mr. Prasad said that he did not check the Invoice Book even after he came to know No. 0343 was missing. Witness was shown 3 Receipts alleged to have issued by his company. He again said that he does not do any mechanical work though there was one mechanic in the company at that time. Mr. Prasad admitted that he employed one Mr. Riteshwar Lal in his garage to do Auto Electrical work with him but he is not aware as to other work Mr. Lal did apart from his garage work. Mr. Prasad denied him sending Mr. Lal to accused’s house twice to fix any housing electrical issues and did not recall wiring Tamavua Police Station.
    
22. Mr. Prasad did not recall him providing any samples of his signature to the Investigating Officer to be given to the Hand Writing Expert. Witness confirmed that he handed-over the Invoice Book in issue in its entirety to the police and said it is still with the police. When confronted with two Affidavits tendered to Magistrates’ Court in the JDS matter, Defense Exhibit No. 1 and 2, Mr. Prasad said that the signature in Exhibit No. 1 is of him and the other is not.
    
23. In answering to questions put by the court, Mr. Prasad categorically denied the hand writings and signatures of Prosecution Exhibit No. 1 (Invoice No. 0343, the Invoice in issue) and Defense Exhibit No. 4 (3 Invoices/Receipts alleged to have been issued to the accused by the witness/his company). It was then the witness disclosed that there is a Carbon Copy in the Invoice Book for each and every page.
    
24. Mr. Ritesh Amar Lal was called next by the Prosecution. But, the learned Prosecutor informed court that though she is calling the said witness on behalf of the Prosecution, she is not leading any evidence and if the Defense so wishes, they can proceed with cross-examination.
    
25. In this context, Mr. Lal was subjected only to cross-examination. Mr. Lal said that he worked for Mr. Amit Prasad from 1^st of January 2008 to 31^st of July 2008 as an Auto Electrician in the garage situated at the back of Samabula Taxi Union. He said that Mr. Prasad sent him to customer’s residences for jobs and in fact he went to the residence of the accused for two times to fix a broken light on the fence. He recalled 10^th July 2008 where the accused paid $550 to Mr. Prasad for the said repairs done for 10 times.
    
26. According to Mr. Lal, after accused paying $550 to Mr. Prasad, the Invoice Book had been given to the accused to write the contents, as Mr. Prasad does not know how to write properly and Mr. Prasad placed his signature on it. Mr. Lal said that they conducted House Wiring and General mechanical works apart from Auto Electrical works.
    
27. In answering to direct questions of court, Mr. Lal testified that the Invoice No. 0343 was filled and signed by the accused and Mr. Prasad respectively in front of him whilst the wife of the accused was also present. Mr. Lal also confirmed that there is a Carbon Copy to the pages in the Invoice Book.
    
28. It is with the revelation of the ‘carbon copy’ of the Invoice Book; the court thought it would be prudent to peruse the Invoice Book to have a clear picture of the invoice in issue. On the other hand, the court was of the view that it is essential to reach a final determination especially in a situation where Mr. Prasad denies his ‘signature’ and Mr. Lal says it was placed in front of him.

Thus, based on Section 116 of the Criminal Procedure Decree, court thought it is highly required to peruse the Invoice Book and therefore the Prosecution was ordered to submit the same to court.

29. The learned Prosecutor produced the original Invoice Book through Mr. Prasad and did not put any questions to the witness. The learned Defense Counsel did not have any objection to the court’s decision in calling for the Invoice Book and in fact cross-examined the witness/Mr. Prasad again on the Invoice Book.
    
30. The Invoice Book was perused by the Defense Counsel and it was observed both by the court and the Defense Counsel that the alleged ‘signature’ contained in Prosecution Exhibit No. 1 does not contain in the carbon copy of Invoice No. 0343. The Invoice Book was marked as ‘Exhibit X’ by the court for easy reference. The Defense Counsel suggested to the witness that after the accused wrote the ‘description’ on Invoice No. 0343, he removed the Invoice from the Book and placed his signature and that is why the ‘signature’ is not reflected on the Carbon Copy of No. 0343.
    
31. Upon perusal of the said Invoice Book (now contains only carbon copies), I would like to reproduce the following facts and figures.

32. This is the essence of the case of the Prosecution. Upon the closure of the Prosecution’s case Defense moved with a “No Case To Answer” application and the same was turn down by court and in terms of Section 179 of the Criminal Procedure Decree, the Defense was called. But the learned Counsel for the accused informed court that the accused would remain silent and will not call any witnesses on his behalf.
    
33. Before analyzing the evidence led in court, I wish to identify the elements of the two charges that the Prosecution has to prove beyond reasonable doubt.
    
34. For the first count of “Forgery” [Section 341(1)] the following elements have to be proved:
    • * The accused
    • * On the 10^th day of July 2008
    • * With intent to defraud
    • * Forged the signature of Amit Prasad on Tax Invoice No. 0343
    • * Purporting the said Tax Invoice to be genuine.
      
35. For the second count of “Uttering Forged Document” (Section 343) elements to be proved can be itemised as follows:
    • * The accused
    • * On the 10^th day of July 2008
    • * Knowingly and fraudulently
    • * Uttered the Tax Invoice No. 0343
    • * At the Small Claims Tribunal, Suva.
      
36. As correctly pointed out by the learned Defense Counsel during the Hearing process, the entire case against the accused would rotate around the ‘signature’ reflected on Tax Invoice No. 0343 of Amit’s Auto Electrical. As this court already highlighted in the Ruling to the turned down “No Case To Answer” application, the said signature does not appear on the carbon copy of the said Tax Invoice No. 0343. The sole reason for the court to initiate the perusal of the original Invoice Book was to see whether the ‘signature’ is reflected on the carbon copy as well. Had it been reflected in both, the original and the carbon copy, the court might have to agree with the Defense case theory in toto.
    
37. That is because Mr. Ritehswar Lal was very firm in his testimony that the accused wrote the description and Mr. Prasad placed his signature in front of him. Even $550 had also given to Mr. Prasad by the accused. The weight attracted to Mr. Lal’s testimony was shattered the moment this court observed that there was no ‘signature’ on the carbon copy. Had Mr. Prasad signed in front of Mr. Lal, how is it practically possible to make no impression of that ‘signature’ on the carbon copy. It aggravates as all the writings of the accused, which is readily admitted by the accused and alleged to have been seen by Mr. Lal, are clearly visible on the carbon copy as well.
    
38. Mr. Prasad, who claims that the accused is known to him as a friend and a frequently visiting customer, did maintain the position throughout the Hearing that he never wrote anything on Tax Invoice No. 0343 nor did he sign it. There was no reason highlighted by the Defense as to why Mr. Prasad testified against the accused, had they been on good terms. It was only after the carbon copy of the Tax Invoice No. 0343 was seen; the Defense took up the position, though rather belated, that it was signed by Mr. Prasad after removing it from the book. That proposition was never brought forward by Mr. Lal, who was alleged to be an eye witness to the entire process of “filling and signing” of Tax Invoice No. 0343.
    
39. It is in this context, this court has to think twice before accepting the testimony of Mr. Lal. If the suggestion of the Defense Counsel about the removal of Tax Invoice No. 0343 and signing it outside is correct, Mr. Lal has not seen that. Otherwise he would have told it to court during his testimony. When the fact remains that there is no ‘signature’ on the carbon copy, all the weight attached to the so-called eye witness’s testimony would evaporate as it is obvious that Mr. Lal has not seen as to what exactly took place and simply supporting the case theory of the Defense for the best reasons known to him. Thus, I refuse to accept the testimony of Mr. Riteshwar Lal.
    
40. Refusing the testimony of Mr. Riteshwar Lal does not necessarily mean Mr. Prasad’s testimony will be accepted and relied upon. But, the prevailing circumstances do insist that what Mr. Prasad testified was true. There is no benefit shown to court that Mr. Prasad will receive by taking up this stand. There was no motive highlighted by the Defense for Mr. Prasad to go against the accused. There was no ill conceived connection or relationship between Mr. Cakacaka and Mr. Prasad to act against the accused was brought to the notice of court. All what Mr. Prasad says is that the handwriting and the alleged ‘signature’ do not belong to him and that stance has been maintained throughout the entire process.
    
41. That is from the first day that Mr. Cakacaka enquired about the invoice and to the day he testified in this court. Though there is marked difference in the ‘signatures’ in the two affidavits tendered to court by the Defense as Defense Exhibit No. 1 and 2, the contents of the two affidavits are the same and Mr. Prasad sticks to his original version.
    
42. I do not wish to pursue the difference between the two signatures on the affidavits tendered as Defense Exhibit No. 1 and 2 as those do not have a direct bearing over the final outcome of this case. A fact finding mission as to why two affidavits were filed by one deponent in the same action, why the deponent had to swear on another affidavit containing the same facts apart from the same signature and was this issue of difference in signatures raised in that respective case, will complicate the matter in hand.
    
43. The accused had already agreed that he filled the Invoice in issue and Mr. Prasad placed his signature on it. Mr. Prasad totally denies any involvement of him, filling or signing the Invoice. There is no dispute between the Prosecution and the Defense that the accused ‘used the Tax Invoice No. 0343 when pursuing his claim against the said Semiti Cakacaka in the Small Claims Tribunal”. In other words, use of the said Invoice is not disputed. If the court is of the view that the signature reflected on Invoice No. 0343 is forged based on the evidence before court, the second count of uttering will automatically be proved.
    
44. Since the accused had used the Invoice No. 0343 for a claim against Mr. Cakacaka, it is apparent that he has placed all his reliance on the Invoice, its contents and the signature. It was this ‘signature’ which gives the authority to the accused to make his claim and pursue the same at the SCT. In the light of that context, when it was revealed in court that the ‘signature’ does not reflect on the carbon copy and the suspicion was directly focused to the accused for forging the ‘signature’ as reflected in the charges, it is the task of the accused to provide some plausible explanation as to why and how the carbon copy does not contain the signature. It should not be mixed up as the Burden of Proof cast upon the Prosecution has shifted to the accused. It is a statutory right of the accused to remain silent when a Defence is called. It is worth to note what the common law precedents are on the issue of ‘silence’ of the accused in this kind of a situation.
    
45. It was decided in Bathurst [1968] 2QB 99 that “comment by the Judge was permissible but the scope for it was limited, and it had always to be accompanied with a reminder that the accused was not bound to give evidence and that, while the jury had been deprived for the opportunity of hearing his story tested in cross-examination, they were not assume that he was guilty because he had not gone into the witness box”. (Blackstone’s Criminal Practice 2011, F19.19, page 2701). In Martinez – Tobon [1994] 1WLR 388, It was decided that “stronger comment was permitted where the Defense case involved the assertion of facts which were at variance with the Prosecution evidence, or additional to it and exculpatory, and which, if true, would have been within the accused’s own knowledge”.
    
46. In Murray v. DPP [1994] 1WLR 01, Lord Slynn made the following remarks:

“If there is no prima faice case shown by the prosecution there is no case to answer. Equally, if parts of the prosecution case had so little evidential value that they called for no answer, a failure to deal with those specific matters cannot justify an inference of guilt. On the other hand, if aspects of the evidence taken alone or in combination with other facts clearly call for an explanation which the accused ought to be in a position to give, if an explanation exists, then the failure to give any explanation may as a matter of common sense allow the drawing of an inference that there is no explanation and that the accused is guilty”.

It was further decided that the accused is not compellable to testify, but he must risk the consequences if he does not do so. (Blackstone, page 2705 F19.23). It was decided in Murray v. UK [1996] ECHR 3; (1996) 22 EHRR 29 that the accused should not be convicted “solely or mainly” on an inference from silence. The court of appeal decision in Whitehead [2006] EWCA Crim. 1486 was that “the direction to the Jury to find a prima facie case before considering the implications of the accused’s silence “amplifies and spells out” what is already implicit in the separate injunction that failure to give evidence cannot by itself prove guilt” (Blackstone F19.24 (page 2705).

47. Lord Slynn’s observation in Murray v. DPP (supra) was that “inferences of guilt should not be drawn from failure to give evidence to contradict a Prosecution case of “little evidential value” as it is improper for a Judge in the common law jurisdictions to bolster a weak prosecution case by making comments on an accused’s failure to give evidence”.
    
48. In the case of Mutch [1973] 1 All ER 178 the English Court of Appeal decided strong inferences can be made on the accused’s silence where the facts clearly call for explanation or there within the accused’s knowledge. This was followed in Martines-Tobon (supra) as well.
    
49. The explanation of the accused warrants not only on the ‘missing signature’. There is a drastic difference on the “issued dates” of Invoice No. 0342 (which was also alleged to have been issued to the accused by Amit’s Auto Electricals) and 0343, the one in issue. As reproduced in paragraph 31 of the Judgment, Invoice No. 0341 had been issued on 14^th of July 2008, to a job valued $40. Invoice No. 0342 (one exhibit in Defense Exhibit No. 4) alleged to had been issued on 5^th of July 2008 and Invoice No. 0343 (Prosecution Exhibit No. 1) had been issued on 10^th of July 2008. Then again Invoice No. 344 had been issued on 14^th of July and it continues according to the chronology of dates, such as 15^th July, 16^th July, and 17th July etc. The only mismatch this court observed with the date and Invoice number in the Invoice Book was in Invoice No. 0336 and 0337. That is a slight difference of one day and the same is acceptable in this type of a business due to an over-sight.
    
50. On the face of it, the dates reflect on Invoice No. 0342 and 0343 are indicative of false insertions while the business of the garage was in progress on 14^th of July 2008. That is why Invoice No. 0341 and 0344 bear 14^th of July. It is in this background the court recalls (as Mr. Prasad’s evidence revealed) that Mr. Prasad is not in the garage every time, but the Invoice Book is kept there. Anybody who wishes to have access to the said Invoice Book could have easily done so. As the accused expressly admitted that he filled the Invoice No. 0343, it is he who had to explain this remarkable discrepancy on dates as it is solely within his knowledge.
    
51. This court agrees with the learned Defense Counsel that there is no ‘direct evidence’ against the accused to implicate with the charges. But, affects of the ‘circumstantial evidence’ do play a major role in this instance. Lord Simon in the case of DPP v. Kilbourne [1973] AC 729 (at page 758) viewed ‘Circumstantial Evidence’ as “works by cumulatively, in geometrical progression, eliminating other possibilities”. It was stated in Exall [1866] EngR 22; (1866) 4 F & F 922 at page 929 that, “One stand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicious; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of”.

In the light of the above precedents, though looks like isolated and independent facts, namely, the absence of ‘signature’ from the carbon copy of Invoice No. 0343; the mismatch of the date on Invoice No. 0343 when comparing to other invoices and the notable silence of the accused, when taken together, create a strong conclusion of accused’s guilt.

52. That is the exact reason why an expert testimony is not necessarily essential in this instance to formulate an opinion in respect of the ‘signature’ on the first copy of Invoice No. 0343 as suggested by the learned Defense Counsel. It was decided in Turner [1995] AB 834 by Lawton LJ (at p. 841) that “Expert opinion evidence may only be received on a subject calling for expertise, which a lay person, such as a magistrate or juror, could not be expected to possess to a degree sufficient to understand the evidence given in the case unaided. If the tribunal of fact can form its own opinion without the assistance of an expert, the matter being within its own experience and knowledge, expert opinion evidence is inadmissible because it is unnecessary”. (Blackstone’s Criminal Practice; 2011, F10; p. 2475).
    
53. This court has no hesitation in concluding that the Invoice No. 0343 was taken out of the Original Invoice Book before the so called ‘signature’ was placed on it. Accused bears the liability of writing all the descriptions on it by his own handwriting including the date and the amount. He admits that it was he who tendered it to SCT to initiate a claim against Mr. Cakacaka. At the end of the day, it was the accused who was going to be benefited, had his SCT case been successful. (Accused has already got $100 from Mr. Cakacaka). Having had the benefit of observing the demeanor and deportment of Mr. Prasad and the consistency of his testimony maintained over the years, this court accepts the evidence of Mr. Prasad. Further, with all the highlighted facts about the Invoice No. 0343, there is no need of an expert opinion evidence to say that what reflects on the 1^st copy of Invoice No. 0343 was placed by somebody else, but not Mr. Prasad, as this matter does not proceed to the extent of comparison of signatures when the court does not believe that Mr. Prasad at any event placed his signature on the Invoice in issue. That somebody should definitely be the accused and the reasons for that conclusion are highlighted in the above paragraphs.
    
54. Before the conclusion, there are two minor issues to be addressed as those were highlighted by the learned Defense Counsel in his submissions. First one is the confusion or ambiguity or the inaccuracy of the two dates reflected on the two charges. Counsel argues that though the Invoice Number shows the ‘DATE’ as 10^th July 2008 nobody knows as to what the exact date of ‘making the document’. It could have been taken into consideration, had it caused any prejudice to the accused in preparing for his defense. While admitting that it was he who wrote the ‘description’ including the date, there is no purpose of complaining about the “existing date” as it was well within the accused’s knowledge. The date stipulated on Count No. 2, should be the date that the Invoice was uttered to the SCT and not the date it was prepared, if both acts were done on two different days. I do agree with the Defense Counsel in that regard. But, I see no prejudice caused to the accused in putting forward his defense with the existing date, as he has already admitted that he tendered the Invoice to SCT and the date he did so is surely within the accused’s knowledge.
    
55. Finally, the learned Defense Counsel argued that the assertion of Mr. Cakacaka to the effect that the accused has based his claim on a ‘forged Tax Invoice’ was rejected by the SCT, Magistrate’s Court and the High Court. His contention is that it was because that there is no merit in this allegation of Mr. Cakacaka. The decision of this court will not be based on a decision of any other court or tribunal. This court has come to a conclusion based on the evidence presented in the course of the Hearing. At the same time, this court has no clue whether the same evidence was presented before other courts or not. Thus, this is a totally independent decision irrespective of previous decisions of other forums.
    
56. Had nothing is been mentioned about the Investigating officer, it will be a lacuna in this Judgment. She herself demonstrated her incompetency to be an Investigating officer from the witness box. She could not support her decision to charge the accused and went on admitting all the suggestions put by the defense. Finally, she passed all the responsibilities to the ‘Crime Officer’. Apart from collecting the original Invoice Book from Mr. Prasad and keeping it intact, I see no substantive investigation skills have played any role throughout the investigation process.
    
57. As discussed in Silivenusi Koroi Bulivakarua and Reginam (Criminal Appeal No. 07 of 1984) the most essential element in the 1^st count of “Forgery” is the intention of the accused “to defraud”. It is obvious that the accused did posses the required intention “to defraud” by “forging” the signature of Mr. Prasad on Invoice No. 0343. As this Lordship Goundar pointed out in simple terms in the case of State v. Salendra Sen Sinha [2010] FJHC 588: HAC 046.2008 (21^st October 2010),

“ Forgery is making of a false document in order that it may be used as genuine. A false document can be made by material alteration to the document, either by addition, insertion, obliteration, erasure, removal or otherwise. To defraud is to intentionally use dishonest means to deprive another person of their property, or to imperil their rights or interests. It involves the intentional creation of a situation by one person to use dishonest means to deprive another person of money or property, or to imperil another person’s rights or interest, knowing that they have no right to deprive that person of money or property, or imperil that person’s rights or interests”.

(Summing-Up – paragraphs 10 and 11).

Therefore all the required elements of the 1^st count of ‘Forgery’ had been established beyond reasonable doubt with the so far led evidence. The moment it is established beyond reasonable doubt that the 1^st count of Forgery was committed by the accused the 2^nd count of ‘Uttering a forged document’ also succeeds as the accused’s knowledge of the said uttered forged document establishes his fraudulent intention when filing the claim at the SCT.

58. Based on the extensively discussed factual and legal analysis, I conclude that the prosecution has proved all the required elements of the two charges raised against the accused beyond reasonable doubt. It was produced before court in such a convincing manner that the three isolated pieces of evidence, Mr. Cakacaka’s testimony, Mr. Prasad’s testimony and the first copy and the carbon copy of the Tax Invoice No: 0343, when taken in totality, its cumulative effect establishes a strong circumstantial evidential background against the accused resulting in his total denial of the charges unacceptable. The defense did fail to create any doubt over the narrations of the said two (2) prosecution witnesses or to show court any motive in them to implicate the accused to the alleged crimes maliciously. The absence of the alleged ‘signature’ on the carbon copy of Invoice No. 0343 shakes the entire foundation of the defence. Therefore, I refuse to act upon the case theory of the defense. I convict the accused for the two counts separately.
    

. . . . . . . . . . . . . . . . . .

Mr. Janaka P. Bandara

Resident Magistrate, Suva

At Suva
Wednesday 17^th April 2013

Solicitors:

1. Office of the Director of Public Prosecutions, Suva for the State
2. Reddy & Nandan Lawyers, for the Accused