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State v Talemaitoga [2007] FJMC 9; Criminal Case No 1479 of 2006 (30 April 2007)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 1479 of 2006

STATE

V

NETANI TALEMAITOGA

Prosecution: DPP: Ms Puamau
Defence: Mr Naro

Before: RM Ajmal G Khan

Date heard:
Judgement: 30.4.2007

JUDGMENT

The accused has been charged with larceny contrary to section 289 and 262 of the Penal Code.

Particulars are Netani Talemaitoga on 25th February 2006 stole 3 pkts of Black Pearls worth $4000 being the property of Decrement Lodhia.

The Prosecution alleys the accused was known to the director of a jewelry company in Suva. Accused sold pearls for the company to private buyers and he used to get commission for his sales. At times he used to pay upfront but also took it on credit and paid after sales.

On 25th February 2006 the accused went to the office of Deemant Lodhia .His office has glass walls and the interior can be seen by people outside the office.

The shop has security guards at the doors. It was a busy Saturday... a bon of pearls was being examined by accused in the office. Party’s were interpreted by a phone call. Lodhia was attending to an overseas call which took about 30 minutes.

Later, the accused left the office a staff who is unable of Lodhia came into office and asked about the accused. Lodhia closed the boxes of pearls and had them put away in the safe by his staff.

On Monday Lodhia found 3 packets of black pearls missing. He waited 2 more days for accused to come back with the pearls or money but he didn’t .So matter was reported to police.

Under cross examination Lodhia grew he had business dealings with the accused. He sold pearls for him and no receipts were given. The second prosecution witness said he ...kept an eye on Decrement Lodhia when the managing Director was away. He said he saw a man in office of Decrement .He saw him pick and put something in his pocket.

He went straight after the phone call to tell the Decrement Lodhia what he has seen.
However, Lodhia was busy and didn't pay much attention to this witness.

On 18th April the accused was on the street then he was pointed out by the 2nd prosecutors witness and he was brought to CPS for questing.

He was later charged.

At the end of prosecutors case a no to answer was submitted however I held the elements of the charge was prima FACIE proven against the accused.

The accused gave sworn evidence. He said he bought and sold Pearls for cash or credit and later paid full sum to Deemant Lodhia.

He used to do it on 50% commission and got no receipts.

He admitted been given the Pearls to sell. He was to sell and pay back.

He returned to the shop on Monday with money. Deemant had gone overseas. So the money was used by the accused.

There appears to be a business relationship between the accused and Deemant Lodhia as complaint in this case.

The charge of larceny requires permanent deprivation and taking away without consent of owner.

The facts here show otherwise Lodhia was told by PW2 (uncle) that he had seen accused put something in his pocket. Yet Lodhia did not check it immediately. The shop has security guards but this uncle did not take any action to stop accused from leaving the shop or having the guards search him before he left the premises.

The theft was also not reported till Monday and time was allowed by Deemant for the accused to come back with money or Pearls.

It is evident from the facts before me, that this was a business transaction which went raw.

Accused admits talking the Pearls and also went back to pay but the complainant was not available so he used the money.

It appears more like a case of goods sold but moneys unpaid to complainant in a civil suit.

I am not satisfied beyond reasonable doubt that the prosecution has proved larceny by the accused.

Any reasonable complainants would not have acted as the present one did in case of a theft from their shop.

The accused is found guilty on both counts as charged.

Dated this 20th day of January 2006.

Ajmal G. Khan
RESIDENT MAGISTRATE