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State v Ram [2010] FJMC 170; Criminal Case 1475.2009 (10 December 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 1475 of 2009

STATE

V

SATISH RAM s/o Shiu Ram

For Prosecution: Mr. Daurewa (DPP office)
For Accused: Mr. Singh

JUDGMENT

1. After leading evidence of 10 witnesses prosecution sought to withdraw some counts against the accused namely; count 01, 02, 03, 07, 08, 09, 13, 14, 15, 16, 17 and 18. As a result of the withdrawal accused is left with following charges against his name.
   
   1. 02 counts of Forgery – (Contrary to sec. 335 (1) (c) of the Penal Code).
      
   2. 02 counts of Uttering forged document – (Contrary to sec. 343 (1) of the Penal Code)
      
   3. 02 counts Obtaining Goods on forged document – (Contrary to sec. 345 of the Penal Code)
      
2. Duty of the prosecution is to prove all elements of the charges beyond reasonable doubt.
   

Elements to be proved

3. Definition of "Forgery" has laid down in the Sec. 332 of the Penal Code.
   

332.-(1) Forgery is the making of a false document in order that it may be used as genuine, and in the case of the seals and dies mentioned in this Division the counterfeiting of a seal or die, and forgery with intent to defraud or deceive, as the case may be, is punishable as provided in this Division.

(2) It is immaterial in what language a document is expressed or in what place within or without the Commonwealth it is expressed to take effect.

(3) Forgery of a document may be complete even if the document when forged is incomplete, or is not or does not purport to be such a document as would be binding or sufficient in law.

(4) The crossing on any cheque, draft on a banker, post office money order, postal order, coupon, or other document the crossing of which is authorised or recognized by law, is a material part of such cheque, draft, order, coupon, or document.

Uttering

343.-(1) Any person who knowingly and fraudulently utters any forged document, seal or die is guilty of any offence of the like degree (whether felony or misdemeanour) and is liable to the same punishment as if he himself had forged the document, seal or die.

(2) It is immaterial where the document, seal or die was forged.

False Pretence

345. Any person who, with intent to defraud, demands, receives, or obtains, or causes or procures to be delivered, paid or transferred to any person, or endeavours to receive or obtain or to cause or procure to be delivered, paid or transferred to any person any money, security for money or other property, real or personal-

(a) under, upon, or by virtue of any forged instrument whatsoever, knowing the same to be forged; or

(b) under, upon, or by virtue of any probate or letters of administration, knowing the will, testament, codicil, or testamentary writing on which such probate or letters of administration have been obtained to have been forged, or knowing such probate or letters of administration to have been obtained by any false oath, affirmation or affidavit,

is guilty of a felony. and is liable to imprisonment for fourteen years.

4. In the light of the above-descriptions, following elements has to be proved with regard to all the charges.
   
   1. The accused
   2. With an intention to defraud.
   3. Made a false document in order to use as genuine.
   4. Knowingly and fraudulently uttered that forged document.
   5. By virtue of such forged document
   6. Knowing that document is to be forged.
   7. Used to obtain some goods.
      
5. As per the written submission by the prosecutor, In Maharaj v. The State [1995] FJHC 63, "intent to defraud" had been analysed using two common law cases.

R v. Ferguson [9 Cr. App. R. 113] – The "intent to defraud" is an essential ingredient of the offence, though in many cases it may be inferred from the facts of the case".

Welham v Director of Public Prosecutions [1961] AC 135 Lord Denning held "put shortly 'with intent to defraud' means 'with intent to practice a fraud' on some or the other. It need not be anyone in particular. Someone in general will suffice. If anyone may be prejudiced in anyway by the fraud, that is enough".

Evidence

PW-1

6. Director for Administration and Finance at Ministry of Agriculture in 2006 / 2007. Empowered to authorise local purchase orders (LPO) valued up to $5000. In 2007 found a book contained certain LPOs is missing. Later on when police showed some LPOs to the witness, he was surprised as those LPOs are from the missing book and someone had forged his signature on those LPOs. Denied signing LPOs 592791 / 592792 and 592793.
   

PW-2

7. In 2006 was the Director of Animal Health and Production at Ministry of Primary Industries. Police has shown some LPOs to the witness and witness informed that his signature had been forged.
   

PW-3

8. In 2006 was the Principal Agricultural Officer for Central Division. Police had shown some LPOs to witness. None contained the witness's signature.

PW-4

9. In 2006 worked at Ministry of Agriculture. Job included writing LPOs. On 10th Jan 2006 had brought LPO book contained LPOs 592751 to 592800 from account section. On 17th Jan 2006 had written last LPO for the day and put the LPO book in the cupboard which is behind his table but could not recall whether he locked the cupboard before leaving for home. After reporting to work next day found out that LPO book is missing and had informed the superior in writing. Not been able to recover the LPO book during the investigation conducted in the office.
   

PW-5

10. In 2006 worked at Suva Bookshop as an accounts clerk. Accept LPOs from Ministry of Agriculture. When payments not done, give 30 days period. Extend to 60 days and if not paid call the customers personally, to collect the dues. Every month sent a statement copy to the customer indicating the outstanding amount, invoice number with date and LPO number. When called Agriculture Department with LPO numbers called them and Department informed about the missing LPO.
    
11. When Department of Agriculture failed to pay, complained to the boss and boss reported the matter to police. Later police had recorded a statement and witness had mentioned all unpaid LPO numbers in her statement. LPOs do not directly come to the witness. Salesman used to give it to the witness at the end of every month.
    

PW-6

12. Security officer at Suva Bookshop since 2004. Duty includes checking all stationeries, checking invoices with LPO. Every invoice should be with a LPO and if invoice carries "SUPPLY" seal and LPO number witness authorise delivery by putting his signature. Witness identified some invoices in the court which carries his signature. Accused admitted handing over invoices to one Abhinesh. All invoices had been presented to the witness by Abhinesh.
    

PW-7

13. Charging officer. Accused completely denied charges.
    

PW-8

14. Managing Director of Suva Bookshop. When receive a LPO from government department prepare invoice and goods delivered. Delivery sometimes by the Suva Bookshop delivery team. Invoice in two copies. One is customer copy and other is delivery copy. Delivery copy has to be sign by the customer and file in the office. When payments not made after 60 days account clerk informs the witness.
    
15. In the present case account clerk had been trying some months to get payments from Agriculture Department. On the request of one Mr. Nete from the agriculture department witness had visited him with LPOs which are not paid. Mr. Nete had informed the witness that those LPOs are from the missing LPO book. Witness had inquired as to why that fact had not been advertised by the department to caution the public. Later witness had come to know that the accused was the purchasing officer for ministry of agriculture and witness had met the accused.
    

PW-9

16. Sales representative at Suva Book shop. When receive a LPO, invoice it and give it to despatch department. Despatch department take out required items and prepare for delivery. On 28/2/2006 received an LPO from the accused. Drew an invoice. Delivered goods to Accused person's office with Avinesh. Accused opened the office for the witness to put the goods inside.
    
17. On 09/03/2006, received a LPO from the accused. Followed the same procedure. Accused had come to pick the items from Suva Bookshop. Accused person's vehicle had been parked in front of the Suva bookshop. Even though that vehicle was accused person's privately owned vehicle witness had seen it used by the agriculture department. Witness denied the knowledge of those LPOs are stolen.
    
18. During the cross-examination witness was asked whether he had been treated as an accused to this case and the answer was 'no'. Witness admitted to the fact that the signatures put by the accused on invoices when receiving goods look different. Witness re-iterated the fact that the accused acted as a receiving officer.
    

PW-10

19. Investigating officer to the case. Witness also accepted to the fact that the signatures appear in invoices are to be different from each other.
    

Accused

20. At the conclusion of the prosecution case, accused gave evidence on oath. Accused denied all the allegations levelled against him. Denied producing LPOs to Suva Book shop on 28/2/2006 and 09/03/2006 and denied receiving goods. Denied stealing LPO book and denied forging signatures.
    
21. Refused to accept signatures in invoices as his signatures and informed the court that his signatures are significantly different to those of appear in invoices. Only admitted being the stationery clerk at the Ministry of agriculture.
    

Analysis

22. The LPO book in question went missing on a day between 17th January 2006 and 20th Jan 2006. According to PW-3 he has received LPOs from the accused on 28th February 2006 and 09th March 2006.
    
23. LPO books are always kept at the office of Ministry of Agriculture and if anyone need access to such a LPO book either that person had to be an employee of the ministry or a person who has an access to the office with or without help from an employee.
    
24. At one point of the hearing of this case, the counsel for the accused wanted to treat the PW-9 as an accomplice to the case. In his submission counsel used the word "accomplice". According to the definition of the Oxford Dictionary "accomplice is a person who helps another to do something wicked or illegal".
    
25. It is not challenged that the accused was an employee of the Ministry of Agriculture and he had worked as a stationary clerk. However, there is no evidence to prove that PW-9 had access to the ministry. There is no evidence to prove that PW-9 had any connection with anyone in the ministry to fulfil this crime. Therefore, the allegation accused person's counsel tried to level against the PW-9 is without merit.
26. Evidence of PW-9 supported by the evidence of PW-6. Both witnesses confirmed the fact that receiving LPOs from ministry of Agriculture and delivering goods on the strength of the LPOs.
    
27. Therefore, it is proved by the prosecution that the LPOs from missing LPO book had been produced to Suva bookshop on 28/2/2006 and 09/3/2006 and obtained goods obtained goods on the strength of those LPOs.
    
28. Accused just denied the allegations and pointed out the fact that the signatures appear in invoices are different.
    
29. Court heard evidence of both parties. Even though that there is evidence to prove that the accused person had obtained some goods from Suva bookshop after producing LPOs from the missing LPO book, there is no evidence to prove that the accused person forged those LPOs in question.
    
30. I believe the evidence of PW-9 and PW-6, regarding the facts that it was the accused who produced the LPOs to Suva Bookshop and obtained goods on the strength of those LPOs.
    
31. Therefore, I acquit accused from both counts of Forgery and convict him for all the other charges against him.
    

On this Friday the 10th day of December 2010

Kaweendra Nanayakkara
Resident Magistrate