Supreme Court of Mauritius, 27 avril 2026, 2026 PMP 2 – Police v Shyama Bissonauth

Police v Shyama Bissonauth

2026 PMP 2

IN THE DISTRICT COURT OF PAMPLEMOUSSES CN: 4421/23 In the matter of:- Police v Shyama Bissonauth JUDGMENT

A. The charge

1. The Accused stands charged with an offence of Embezzlement in breach of Section 333(1) of the Criminal Code.

2. The information avers that on or about the 19th day of March 2021, at Ramdhany Road, Plaine des Papayes, the Accused did wilfully and unlawfully embezzle to the prejudice of the owner, goods, which had been delivered to her merely in pursuance of a contract of deposit, to wit: the said Accused did embezzle to the prejudice of one Maheswaree Bissonauth several golden jewelleries which were delivered to her with the condition that same be returned to the complainant, which she failed to do.

3. The Accused pleaded not guilty to the charge and was legally represented throughout the trial.

4. The case for the prosecution was conducted by police prosecutor.

B. The case for the prosecution

5. Witness no.1 produced two defence statements of the Accused which were marked as DOC A and DOC A1.

6. In cross-examination, witness no.1 was made to confirm the following:

6.1. The declarant is the Accused’s daughter-in-law; 6.2. When the declaration was made, the declarant was not residing under the conjugal roof because of personal problems with her husband, one Madhev Bissonauth; 6.3. In her statement, the Accused clearly explained that at no point any alleged stollen jewelleries were remitted to her; 6.4. The Accused explained that this is a false allegation against her because the declarant was living separately from her son; 6.5. The Accused voluntarily gave the police permission to search her home and only one search was carried out on 11.05.21; 6.6. Nothing incriminating was found at the Accused’s house; 6.7. The declarant’s father is the ex-CP, Mr Dip.

7. In absence of witness no.2, the police prosecutor produced another defence statement recorded from the Accused and same was marked as DOC B.

8. Witness no.3 testified to the effect that in the year 2021, on the 24th of May, she gave a declaration of Embezzlement at Rose Belle police station. She was then civilly married to Mr Bissonauth and was living in a two-storey house at Ramdanee Road, Plaine des Papayes, together with their child and her in-laws. She started having issues with her then husband when she found out that he was having extra marital affairs. The latter then threw her out of the house with their minor child who was four years old at the time. She went to reside at her father’s house at Marie Jeanne Road, Rose Belle, leaving all her belongings which consisted of clothes, money, jewelleries, her child’s clothes and jewelleries in the house at Plaine des Papayes. The jewelleries were worth more than Rs.800,000- Rs.900,000 and they consisted of bangles, necklaces, wedding jewelleries, rings, and her child’s chains and bangles. The money amounted to Rs.300,000. On 22.04.21, at 11hrs, she was at her father’s place in Rose Belle when a man came in a van. She recognised the man as being her ex-husband’s driver. He came to deliver her belongings which were all packed in bin bags and carton boxes. The said man told her that her in-laws sent him and they had personally packed all her belongings to be delivered to her. She was remitted a bag which she opened in front of the man. In the bag were boxes which, when opened, were found to contain a couple of jewelleries but none of them were those that she had

mentioned. She opened the other boxes but still none of her jewelleries or that of her child were in there. She told the man that there was money left in her wardrobe and he replied that he knew nothing of it. She made the man verify everything on spot and requested that he draft a letter to confirm which items were remitted to her, who packed them, and who asked for him to deliver them to her. He willingly did as she asked and signed the paper. She took a picture of the man’s ID as well as the paper. She gave same to the police when she went to make her declaration. She also produced to the police photographs of the jewelleries which were missing and which were kept in a safe in her mother-in-law’s room. The safe belongs to her mother-in-law and all her jewelleries were kept in the latter’s safe since she married. She did not have access to the safe and she does not know how to open it. Each time she needed her jewelleries, her mother-in-law would give her and she would then give them back to her mother-in-law for safekeeping. She did not have any receipts for her jewelleries. She gave her mother-in-law her jewelleries as she did not have any place to keep them and she trusted her mother-in-law to keep them safe. She positively identified her mother-in-law as being the Accused in the dock.

9. In cross-examination, witness no.3 confirmed that she gave a precautionary measure on 21.03.21 at Sodnac police station. She was made to identify same and she positively did. She confirmed that she kept the money worth Rs.300,000 in her wardrobe without a key. Upon being asked why she would give the jewelleries to her mother-in-law to keep and not the money, she replied that the money was for her personal use. She confirmed that the jewelleries belong to her and that she would not be keeping a big necklace in her room without a key, nor would she be wearing it daily. Upon being confronted with the fact that she was keeping Rs.300,000 in her wardrobe without a key, she replied that the value of the jewelleries was more and that those jewelleries have always been kept with her mother-in-law since she got married. She was made to read part of her statement in court which was to the following effect: “fine garde sa pou zot mo bane beau parents ek mo missier, valeur en tout li Rs.300,000 en liquide et Rs.300,000 pou bijoux”. She was then asked to state the correct value of the jewelleries, whether it was Rs.900,000 or Rs.300,000, and she replied that she did not know the exact value but that the value should be more than what she had stated in her statement. She confirmed having stated that her husband’s driver came to drop her belongings. As per her statement, she stated that the driver told her “prend sa bane couyonad la” and she confirmed this was the case. When it was put to her that the driver never told her that, she replied that the driver was lying. She agreed that there were some jewelleries in the items that were remitted to her. Upon being asked why the Accused would keep some jewelleries and send some to her, she replied that those sent to her were not of significant value. She was not present when the driver

received the instructions from her in-laws. She did not know that nothing incriminating was found at the Accused’s place. She denied having levelled a false charge against the Accused.

C. The case for the defence

10. From the dock, the Accused stated that defence statement is correct and that the allegations were lies.

11. Two witnesses were called on behalf of the Accused.

12. Mr Titanand Coormiah testified to the effect that he knows Mrs Maheswaree Bissonauth as he used to work as driver for her husband, Mr Bissonauth. On 22.04.21, Mr Bissonauth called him and requested for him to drop some parcels with the wife. There was a bag which he had to remit in the wife’s hand. He did as he was told. He spoke to Mrs Bissonauth and told her that his boss sent him to remit to her her personal belongings. He denied having told Mrs Bissonauth “ou belle mere, ou beau pere fine dire ou prend sa bane couyonad la, vine zet devant ou laporte”. He also denied having stated to Mrs Bissonauth: “ala ceki ou beau pere ek belle mere fine avoyer, c’est bane la meme kin faire packing”. He was then made to identify the statement which he gave to the police. He confirmed the following averments in his statement: “si madam Cheetra dire qui mo ti impoli envers li, sa li menti sa” and “si aussi, a oken moment dans aine manier impoli mo pas fine dire li “ou belle mere ou beau pere in dire moi prend sa bane couyonad la” tou sa la li menti”.

13. In cross-examination, the said Titanand Coormiah stated having worked for Mr Bissonauth for 2-3 years. He did not know which years. He works as a driver for a contractor. He no longer works for Mr Bissonauth. Whilst working for him, his relationship with the Bissonauth family was okay; they had a good relation and they often worked together. On 22.04.21, he left the parcel with Mrs Cheetra, witness no.3. There were several parcels, including the bag which Mr Bissonauth stated to remit in her hands. He was not the one who drove there. He did not check what were in the parcels. He knew there were jewelleries in the bag. He did not open the bag but when he dropped the bag with Mrs Cheetra, she opened same and checked. He was made to identify his statement which he gave on 11.05.21 at 13:30hrs at CID Piton. He confirmed the following averments contained therein: “madam Cheetra ti prend sa ti sac la, line ouvert sa ti sac la ek line montrer moi qui ti ena inper bijoux ladan. Mo pa kapav dire qui bijoux ti ena. Madam

Cheetra fine dire moi qui tou sa ban zafer qui mone fine amener la, li fine faire aine la liste ek line faire moi signer”. He confirmed having signed it. He did not know how to read. He would not know whether the jewelleries were hers.

14. In re-examination, he was made to confirm the following averments as being the truth in his statement: “mo fine dire li qui mo pas cone lir et ecrire, ek line fine dire moi pena nanien ladans, li pou donne moi aine copi pou sa”.

15. Mr Madhoor Bissonauth testified that he was married to Mrs Maheswaree Bissonauth, also known as Cheetra Dip. At the material time, since they were not longer living together, he told his driver, Mr Titanand Coormiah, to drop her belongings and that of their daughter’s. He was his personal chauffeur. He was the only one who instructed his driver to do same. He also did the packing. He was made to identify the statement which he gave to the police wherein he confirmed the averments therein: “lerla mo fine dire mo chauffeur quitte sa bane zafer la, met dans aine van qui mo tip rend avec aine kam et alle quite avec mo madam” and “a oken moment, ni mo mama, ni papa in rent dans mo lavi conjugale et ni bane la fine embark sa bane zafer la”.

16. In cross-examination, the said Madhoor Bissonauth stated that the Accused is his mom. They live together and they have a good relationship. When asked how long his driver worked for him, he replied several years, since 2018. He stated the latter still works for him. He does not work full-time as sometimes he has other business. When it was put to him that he was lying as the driver stated not working for him anymore, he replied “ena fois li avec moi, ena fois li avec lezot business dans qui mo eter”. When it was further put to him that the driver stated having worked for him for 2-3 years, he replied that at some point, the driver had some medical issues and he had to stop working, and recently, he agreed for him to resume work. He stated that all the jewelleries were put in the bag which his driver remitted to her. He maintained his version, denied lying or taking his mother’s side.

D. Analysis

17. The Accused is being prosecuted for an offence of Embezzlement in breach of Section 333(1) of the Criminal Code. I thereunder reproduce the applicable provision:

“333. Embezzlement

(1) Any person who embezzles, squanders away or destroys or attempts to embezzle, squander away or destroy to the prejudice of the owner, possessor or holder, any goods, money, valuables, security, bill, acquittance or other document containing or creating an obligation or discharge, which ahs been delivered to such person merely in pursuance of any lease or hiring (‘louage’), deposit (‘dépôt’), agency (‘mandat’), pledge (‘nantissement’), loan for use (‘prêt à usage’), or for any work with or without a promise of remuneration with the condition that the same be returned or produced or be used or employed for a specific purpose, shall be punished by imprisonment and a fine not exceeding 100,000 rupees.”

18. Article 408 of the French Penal Code defines the offence of ‘abus de confiance’ which is equivalent to Section 333(1) of our Criminal Code. Encyclopédie Dalloz – Abus de Confiance – Note 7 succinctly states the constituent elements of the offence as follows 1 :

(1) ‘nature des choses sur lesquelles peut porter l’abus de confiance’; (2) ‘remise de la chose à titre précaire en vertu d’un des contrats determines par la loi’; (3) ‘détournement ou dissipation’; (4) ‘caractère frauduleux du detournement ou de la dissipation’; (5) ‘prejudice’.

19. Importantly, there would be no offence embezzlement unless the several golden jewelleries were remitted by virtue of an agreement which falls within one of the contracts listed in Article 333 of the Criminal Code as explained in paragraph 2626 of Garraud Droit Penal Français Vol 6:

“2626. Titre de la remise – Le délit suppose enfin que les effets, marchandises ou valeurs dissipés ou détournés, ont été remis à l’un des titres limitativement énumérés dans l’article 408… Le délit ne consiste pas simplement dans le fait de s’approprier frauduleusement un objet mobilier appartenant à autrui et dont on avait la possession ou la garde; il faut encore que la remise de cet object ait été faite en execution de l’un des contrats limitativement énumérés par l’article 408”

1 Sookur P v The State 2015 SCJ 137 2015 MR 184 2 Chopra v The State 2020 SCJ 252

20. I am also alive to the pronouncement of the Court in the case of Sewnarain v R 3 that the civil law rules of proof regarding contracts have no place in cases of embezzlement and that oral evidence should always be acceptable.

21. The several golden jewelleries which the Accused is charged in the information with having embezzled is said to have been delivered to her in pursuance of a contract of deposit (dépôt).

22. Encyclopédie Dalloz – Abus de Confiance defines Dépôt as follows:

“Le dépôt de l’article 408 du code pénal, dit ‘dépôt régulier’, est un acte par lequel le dépositaire reçoit la chose d’autrui, à la charge de la garder et de la restituer en nature (C. civ. Art. 1915) Il est essentiellement gratuit mais peut être salarié..”

23. Article 1915 of our Civil Code, as that of the French Civil Code, provides as follows:

“Le dépôt, en general, est un acte par lequel on reçoit la chose d’autrui, à la charge de la garder et de la restituer en nature.”

24. As a general rule, deposit is a transaction by which one receives the thing of another on condition of keeping it and returning it in kind. 6 To show that there was a contract of deposit, the prosecution has to establish three essential conditions:

(a) ‘la remise d’une chose mobilière et corporelle’; (b) ‘l’obligation de la garder’; and (c) ‘l’obligation de la restituer en nature’.

25. I have carefully assessed the evidence on record and the written submissions of defence counsel.

26. The whole of the prosecution case hinges on the testimony of witness no.3. The latter stated that her then husband, Mr Bissonauth, kicked her out of the matrimonial home. She

3 1986 MR 149 4 Sookur P v The State 2015 SCJ 137 2015 MR 184 5 ibid 6 ibid 7 ibid

had jewelleries worth more than Rs.800,000 to Rs.900,000 and money amounting to Rs.300,000 which were left thereat. The jewelleries consisted of bangles, necklaces, wedding jewelleries, rings as well as her daughter’s chains and bangles. The money was kept in her wardrobe and the jewelleries were kept in her mother-in-law’s safe. She did not have access to the safe. She explained that she gave the jewelleries to her mother-in-law as she did not have any safe place to keep them. Each time she needed her jewelleries, her mother-in-law would give her and she would then give them back to her mother-in-law for safekeeping. She then explained that on 22.04.21, the driver of her then husband brought her belongings, which were all packed in bin bags and carton boxes. The said driver told her that it was her in-laws who sent him to deliver her belongings. Her jewelleries were missing amongst the said items upon her verification. She then explained that she made the driver draft a letter to confirm each and every item remitted to her. She gave that letter to the police when she made her declaration and she also produced to the police the photographs of her jewelleries.

27. Having listened and observed the demeanour of the witness no.3, I have not been convinced of her credibility.

28. In a criminal case, it is presumed that the facts and circumstances which amount to the main complaint are put to a suspect at enquiry stage. When I analyse what was put to the Accused at enquiry stage and the testimony of the witness no.3 in court, I find that there are material inconsistencies.

28.1. The witness’ testimony was to the effect that her jewelleries, consisting of bangles, necklaces, wedding jewelleries, rings as well as her daughter’s chains and bangles, were kept in her mother-in-law’s safe. The said jewelleries were worth approximately Rs.900,000. However, her complaint only made mention of her wedding jewelleries being kept with her mother-in-law, and same consisted of “deux mangalsutra en or, aine haar en or, douze battana en or, aine pair Zanon en or, quatre bagues en or”. She made no mention of her daughter’s jewelleries and I find that, in court, she was unable to give a precise description of the jewelleries (as compared to her complaint) which were allegedly kept in her mother-in-law’s safe.

28.2. In court, the witness stated that the jewelleries were worth more than Rs.800,000 to Rs.900,000. However, in her complaint, she valued the jewelleries at Rs.300,000, and in cross-examination, she stated not knowing the exact value of the jewelleries

but that the value should be more than Rs.300,000. She thus gave three different versions as regards the value without justification.

29. Given the material inconsistencies highlighted with respect to the jewelleries and their value, I find that I cannot safely rely on the oral testimony of witness no.3. I do not believe that there was any remittance of jewelleries to the Accused for safekeeping on the condition that same be returned to her. The Accused has denied the charge in her defence statement and stated that she never kept any jewelleries for witness no.3, nor did the latter ever remit to her any jewelleries to safe keep. I have also taken note that nothing incriminating was found at the Accused’s house.

E. Conclusion

30. For the aforesaid reasons, I find that the prosecution has failed to prove the case against the Accused beyond reasonable doubt and accordingly dismiss the charge against her.

Mrs. M. D. Chung Kow Cheong District Magistrate 27.04.26