Supreme Court of Mauritius, 15 janvier 2020, 2020 INT 5 – POLICE VS VEERASAWMY SOCKALINGUM CN 72.18

POLICE VS VEERASAWMY SOCKALINGUM CN 72.18

2020 INT 5

POLICE VS VEERASAWMY SOCKALINGUM Cause Number: 72/18 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) In the matter of:- POLICE VS VEERASAWMY SOCKALINGUM JUDGMENT INTRODUCTION The Accused stands charged with the offence of giving instructions for the commission of a crime in breach of sections 38(1), 108(a), 111, 112 and 121 of the Criminal Code. He pleaded not guilty and was assisted by Counsel. The particulars of the charge against the Accused are that on or about the 12 th February 2016, he wilfully and unlawfully gave instructions for the commission of a crime, in as much as he instructed Mr Iyacootee to make use of a forged private writing to purchase 90 bags of powder milk of 25 kgs each at Abdulla Ebrahim and Company Ltd and remitted to him a fake MCB cheque to effect the payment of the milk powder.

THE FACTS Mr Raman is a shop owner. He testified that in the year 2016, a person called at his shop to take delivery of milk in consideration of a bank cheque. In the afternoon, Mr Raman banked the cheque but the bank declared same to be forged. According to Mr Raman, the value of the cheque could be about Rs 270,000.

The version of the Accused is contained in his statement given to the police. He averred that he met Mr Ayacootee through Mr Chockalingum for whom the Accused sought clients for his new company. On the 12 th February 2016, Mr Ayacotee and Mr Chockalingum came to pick up the Accused and in the car, Mr Chockalingum remitted an envelop containing a cheque to Mr Ayacootee to take delivery of items to be delivered to Pailles. In fact, at Pailles, boxes of milk were delivered and the Accused found that they were purchased from Ebrahim shop. The Accused negotiated with Mr Mustapha in a supermarket to purchase the milk.

OBSERVATIONS I have assessed the evidence on record. The Accused is charged with the offence of giving instruction to commit a crime under section 38(1) of the Criminal Code. Section 38(1) reads as follows: Any person who, by gift, promise, abuse of authority or power, machination or culpable artifice instigates, or gives any instruction for, the commission of a crime or misdemeanour shall be punished as an accomplice in the crime or misdemeanour. According to the dicta in the case of MOHOBOOB M C v THE STATE (2012) SCJ 481, the instruction must be precise and not tenuous. Consequently, the Prosecution must prove the following elements of the offence: (i) There was a crime (ii) The Accused gave instructions to commit the crime

The crime The crime in question in this case is making use of a forged private writing. The private writing consists of a MCB cheque bearing number 82659671. According to Mr Adone, a senior fraud investigator, the cheque was not a genuine one.

Giving instructions to commit the crime “In a criminal case it is normal to assume that the version that is put to an accused party when recording his or her defence is the very complaint that was made by the victim”. (RE: P

MARDAY VS THE STATE (2000) SCJ 225). In the present case, the charge against the Accused is that on the 12 th February 2012, he met up with Mr Iyacootee and gave the latter instructions to take delivery of milk from Ebrahim shop. He also remitted to him a cheque for the purchase of the milk and delivery of items of Ebrahim shop to Pailles. This charge is denied by the Accused. I deem it to refer to the case of KEERPAL N. v. THE STATE (2017) SCJ 150, which defined the terms ‘giving instructions’, by referring to the case of M. J. C. BRASSE V. THE QUEEN [1988 SCJ 150] as follows:

“As pointed out in the case of Leong Hing v. R [1974 MR 252], on a charge of complicity by giving instructions it is necessary to prove that the accused gave “a l’auteur principal des renseignements de nature a faciliter la commission de l’infraction. Il faut que les indications données présentent une certain précision”. It is not enough to prove general advice or instigation of the accused. In R. v. Rengayah 1944 M. R. 73 it was held that “instructions” in the sense of Section 38 of the Criminal Code means much more than a mere advice. It means information or indications which are of use to perpetrator of the crime in the achievement of his purpose”.

However, in the present case, Mr Iyacootee never turned up to Court to sustain the charge against the Accused. He elected to be persistently and consistently absent and hence I find that the Prosecution has not been able to substantiate the charge against the Accused. I have also noted that SI Burumdoyal examined the cheque number 82159677. The handwritten signatures on the cheque were compared to the specimen writings and signatures of the Accused and it was found that they have been differently executed and bear different readings. In other words, the handwritten signatures on the cheque cannot be related to the writings and signatures of the Accused, such that there is no evidence that the Accused signed on the cheque. I therefore that there is no evidence connecting the Accused to the cheque bearing number 82659671.

CONCLUSION I find that the Prosecution has failed to prove that the Accused had any involvement in the present case and has failed to prove that the Accused gave instructions to Mr Iyacootee to

commit a crime, that is to make use of a forged cheque. I further find that there is no evidence of any intention on the part of the Accused to have committed the present offence since his involvement has not even been established. In light of the above, and by virtue of section 70 of the District and Intermediate Courts (Criminal Jurisdiction) Act, I find that the Prosecution has failed to prove its case against the Accused beyond reasonable doubt. I dismiss the case against the Accused.

Judgment delivered by: M.GAYAN-JAULIMSING, Magistrate, Intermediate Court Judgment delivered on: 15 th January 2020