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State v Narayan [2015] FJMC 89; Criminal Case 314 of 2013 (27 July 2015)

IN THE MAGISTRATE'S COURT AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 314 of 2013

STATE

v

GANESH NARAYAN

Prosecution : PC Monish
Accused : Mr Fesaitu. M
Judgment : 27 July 2015

JUDGMENT

1. The Accused, Ganesh Narayan is charged with one count, of Obtaining Financial Advantage by Deception, contrary to section 318 of the Crimes Decree No. 44 of 2009, and one count of Causing a Loss, contrary to section 324 of the Crimes Decree No. 44 of 2009.
   
2. The particulars of the offence is that between 1st and 31st day of July 2012, at Labasa, in the Northern Division, by deception, dishonestly obtained the sum of $756.00 from Har Deo. The particulars of the offence for the two counts are the same. The additional particulars of offence for count two are causing a loss to the said Har Deo.
   
3. On 14 October 2013, the Accused pleaded not guilty to both the counts and the case proceeded for hearing on 20 April 2015.
   
4. The Victim, Har Deo is the only witness for the Prosecution as the caution interview and the charge statement were tendered by consent. The Accused is the only witness for the Defence. The Defence Counsel filed his closing submission on 11 May 2015.
   
5. The brief facts of the case that can be summarised from the evidence adduced at the trial are that the Victim wanted to buy a vacant land at Vunika, Labasa. The Victim gave $756.00 to the Accused to secure the vacant land for him. The Accused failed to secure the land, the Victim did not get the land and has not received his $756.00 back from the Accused when the case was heard on 20 April 2015.
   
6. On the first count, section 318 of the Crimes Decree 2009 provides - A person commits a summary offence if he or she by a deception, dishonestly obtains a financial advantage from another person.
   
7. On the second count, section 324 of the Crimes Decree 2009, provides – A person commits a summary offence if he or she, does anything with the intention of dishonestly causing a loss to another person.
   
8. The Victim paid $756.00 to the Accused. The Accused confirmed received that amount of money. The Victim did not get the land and has not received his $756.00 back from the Accused. These facts were not disputed. The money was paid to the Accused in 2012, when the Accused asked the Victim for that amount for the land processing fees and deposit. It almost 3 years now the Victim has not received his $756.00 back from the Accused. These facts or evidence satisfies the elements of obtaining financial advantage from another person for the first count and causing a loss to another person for the second count. The other elements that are left to be proved beyond reasonable doubt by the prosecution are dishonestly for both the counts and deception for the first count.
   
9. The money was given to the Accused to pay to the iTaukei Land Trust Board (TLTB) as processing fees and deposit for the land. In the caution interview, the Accused paid the money to Rusiate at the grog stall without any receipt issued. At the trial, the Accused state that the money is still with him. In cross examination he confirms that the money is still with him and he can pay back with interest. Further, in cross examination, the Accused deny a sentence in a letter of guarantee that he signed on 16 July 2012, which state that the money has been paid to TLTB office for the processing fees of the vacant lot in Vunika. That is the same land the Victim wants to purchase in this case. The inconsistent statement and evidence of the Accused clearly shows the dishonest and deceitful conduct and intention of the Accused in obtaining the $756.00 from the Victim and it also affects his credibility as a witness.
   
10. The Accused with his dishonest and deceitful motives says that he gave the money to Rusiate to pay for the lease processing and deposit. The Accused successfully advance his deceitful and dishonest motive that if the Victim wants that land he can talk to the Manager TLTB as they are friends and he can make the payments slowly. The Accused dishonestly influence the Victims that if he wants the land then the Victim has to give the money to the Accused, otherwise, he will give the land to another person.
    
11. According to the Accused, Rusiate is a TLTB staff from Suva. When it was put to him during the caution interview, that there is no Rusiate working for TLTB after the interviewing officer checked with TLTB, the Accused state that he is not aware of that. In cross examination, the Accused deny the content of the guarantee that the money has been paid to NLTB (TLTB) and state that it must be a wrong sentence. The Accused already confirmed that he wrote and signed that guarantee at the grog stall. The inconsistency of the Accused evidence affects his credibility as a witness
    
12. When the Victim noticed that someone has built a house on that land, he was calling the Accused on his phone but the Accused phone was diverted. That went on like for almost a year. According to the Victim before he notice the house on that land he used to call the Accused and the Accused told him that the Manager is in Suva and he will liaise with the Manager when he return. It was when the house was built on that land and when the Victim was calling the Accused on his mobile phone when the Accused phone was diverted. The Accused response was because he was in Navua where there is a problem with mobile reception. According to the Accused he stays at the junction of Navua. The Prosecution informed the Accused that phone reception at Navua is good where the Accused disagree. I reject this piece of evidence of the Accused.
    
13. The Accused at the trial state that he cannot pay the money back to the Victim because he was on bail with conditions. In the caution interview, on 11 April 2013, the Accused state that he will pay the money within one week, he fails to do that. The Accused was charged on 5 June 2013 and was bailed on the same date. It almost 2 months and that is sufficient time for the Accused to pay the Victim if he really meant to pay. The Accused failed because the money was obtained by dishonest and deceptive motives. I reject the Accused explanation or evidence in this regard.
    
14. The conduct of the Accused and his explanation clearly shows the deceptive and dishonest motive he has when he obtained the money from the Victim.
    
15. In considering and assessing the Accused evidence adduced at the trial, it clearly shows the dishonest and deceptive motive of the Accused when he obtain $756.00 from the Victim. With his dishonest and deceptive motive he gave contradicting statement and evidence with the attempt to avoid liability and guilty to the wrong he has committed.
    
16. In assessing the witnesses and their demeanour, I find that the Victim is a credible witness than the Accused.
    
17. I am satisfied that the Prosecution has proved the elements of both the offences in this case beyond reasonable doubt.
    
18. In my judgment, I find the Accused guilty for both the counts and I convict the Accused as charged for both the counts accordingly.
    

28 day to appeals

Cama M. Tuberi
RESIDENT MAGISTRATE