Supreme Court of Mauritius, 29 avril 2026, 2026 LPW 16 – Police v Gino Louis Judex Malepa

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Police v Gino Louis Judex Malepa

2026 LPW 16

CN: 1764/20

IN THE DISTRICT COURT OF LOWER PLAINES WILHEMS

In the matter of –

Police

v/s

Gino Louis Judex Malepa

JUDGMENT

The charge

The Accused stands charged with having, in or about the months of February and March 2016, at Royal Road, Beau Bassin, criminally, wilfully and fraudulently embezzled money, to the prejudice of the owner, which had been delivered to him merely in pursuance of a contract of work with promise of remuneration with the condition that same be used for a specific purpose, in breach of section 333(1) of the Criminal Code.

He pleaded not guilty to the charge.

The Accused was initially legally represented. Upon repeated absences of Defence Counsel (there are in all seven letters from him on record requesting for a postponement) or the Accused, the latter was granted a last postponement for the defence case to be in shape. On the next date when the case was fixed to be heard, Defence Counsel was again not in attendance. Exceptionally, the Accused was granted a very last opportunity to secure the attendance of his legal representative. On the following occasion when the case was called for trial, Defence Counsel was customarily absent.

In the absence of any legal representative, the Accused conducted his own defence – Chuckooree v The Queen (1981 MR 8) , S.O.S Medical et Laboratoire (MTIUS) Ltd v DHL (Mauritius) Ltd (2020 SCJ 37) and Guya v The State (2024 SCJ 367).

The case for the Prosecution

The prosecution case relied, inter alia, on the oral testimonies of three witnesses.

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Inspector Gokhool (Witness 1) produced the unsworn statement of the Accused.

PS Munien (Witness 2) then produced two other out-of-Court statements that he had recorded from the Accused. He also explained that, during the course of the police enquiry into the present matter, he had carried out an identification exercise between the Accused and the declarant following which the latter had positively identified the former as being the one to whom money had been remitted.

Then came the turn of Mr Eddy Lim Ka Lan (Witness 3), the complainant in the present matter. He explained that he owns a business in Beau Bassin involved in printing and signages. The Accused had approached him telling him that he could manufacture transparent keyholders made out of resin with a logo imprinted thereon and had showed him some samples. Witness 3 saw the samples, held them in his hand and thought that it was an interesting product. The Accused also told him that he already had some clients lined up but that he lacked the required resources to proceed with the production. The Accused showed to Witness 3 some paperwork in relation to orders supposedly placed by some clients. Being given the nature of his business, Witness 3 believed that he could also get some clients of his own for the said product.

The Accused solicited the help of Witness 3 to get the business started. A reasonable agreement was reached – Witness 3 would finance the project while the Accused would manufacture the products and they would then share the profit equally between them. This agreement was reduced in writing and was produced by Witness 3 in Court. Believing it to be an honest deal, Witness 3 withdrew money from a credit card to hand over to the Accused being given that Witness 3 did not have the required funds available as he had just started his own business. In all, Witness 3 incurred a debt and remitted a total sum of Rs 80,000 to the Accused over several occasions. The money was meant for the purchase of raw materials by the Accused for the manufacture of the keyholders in relation to orders supposedly already secured by the Accused.

The Accused took the money of Witness 3 and disappeared. When Witness 3 tried to contact the Accused, the latter stopped answering his phone. There was an exchange of text messages between them, a copy of which was produced by Witness 3 in Court. Witness 3 had also lent a colour printer and a drill to the Accused that were meant to be used for the manufacture of the keyholders. Witness 3 went to the place of residence of the Accused and took possession of his equipment, in the absence of the Accused, through the latter’s mother. Witness 3 confirmed that he neither received his money back nor did he receive the products. With interest, he had lost a sum of about Rs 130,000.

Under cross-examination, Witness 3 stated that –

(a) it is not his style to forge documents and the Accused has not reported him for such an offence;

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(b) the documents produced in Court mention a sum of Rs 60,000 but do not include a last sum of Rs 20,000 given to the Accused that was the last straw before the reported the Accused to the police;

(c) the Accused has made a gross abuse of his trust and never called him to reimburse any sum of money; and

(d) the sum of Rs 130,000 is arrived at by factoring in accrued interest being given that the money was taken from a credit card.

The case for the Defence

After being explained his rights, the Accused elected to depose under oath.

He explained that he had approached Witness 3, a man of principle, who had lent him Rs 10,000 out of trust after the Accused had shown some samples to Witness 3. The Accused placed an order for raw materials but did not get them in time. He completed a first order from the raw materials he already had in store – 200 units and 300 units. By the time the raw materials arrived, he could not complete the remaining order as he had run out of time. When he informed Witness 3, the latter got angry. The Accused asked Witness 3 to come to his house to take the money and his equipment. Witness 3 took his equipment but wanted Rs 80,000 which is the profit he would have made from the project. The Accused only signed for Rs 10,000

Under cross-examination, the Accused stated that –

(a) a pail of 25 kg of resin cost about Rs 3,700 at the time and some 300-400 keyholders could be made from it;

(b) in the exchanges that were produced in Court, Witness 3 wanted Rs 100,000 but he did not have so much money at once to return to him;

(c) it is correct to say that the drill and the printer was given to him by Witness 3 despite it being handwritten in the agreement; and

(d) on each occasion, he was bringing a sample to show to Witness 3 only to apprise him of the other orders that he had received.

In his defence statements, the Accused stated that –

(a) Witness 3 gave him Rs 10,000 to buy raw materials for the purposes of his business and also handed over to him a drill and a printer;

(b) he received an order for 300 keyholders and informed Witness 3 who was not happy as he wanted the Accused to work for him;

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(c) when he completed the order, he contacted Witness 3 again and the latter informed him that he had received an order;

(d) when the Accused refused to complete the order, Witness 3 told him to return back his equipment and the sum of Rs 60,000; and

(e) he never took more than Rs 10,000 from Witness 3 who did not make him sign for the other occasions.

Analysis

I have carefully weighed the evidence on record.

I must say, at the outset, that Witness 3 did strike me as a witness of truth. His testimony was calm, composed and coherent. He explained the circumstances that led him to hand over money to the Accused on several occasions believing it to be a unique business opportunity. He appeared to be bitter at the prospect of having lost his hard-earned money to a scam and angry about the fact that the Accused had made an abuse of his trust – bitterness and anger that cannot be faked. I have no hesitation in accepting his evidence as true.

True it is that there were minor inconsistencies in the account of Witness 3 in Court notably insofar as the sums mentioned are concerned. Yet, I am of the opinion that these are perfectly understandable given the time elapsed. Besides, Witness 3 seems to have focused on the interest that has accrued on his credit card which is where he obtained the money from. In Court, Witness 3 went to the extent of stating that, with all the interest, the prejudice suffered by him now amounted to some Rs 130,000. Be that as it may, for the purposes of the present exercise, I shall circumscribe myself to the sum of Rs 59,100 – a sum buttressed by the documents on record and that was confronted to the Accused during the course of the enquiry.

In any event, inconsistencies are to be measured by the yardstick of seriousness and materiality which must be linked with the overall issue of truthfulness – Saman v The State (2004 SCJ 3). As stated previously, having had the opportunity to see Witness 3 depose in Court and having assessed his demeanour, I am convinced that he has been telling the truth. I believe him. The minor inconsistencies were not so material and serious as to impeach his overall credibility.

The Accused has claimed in Court that he was given only a sum of Rs 10,000 by the Accused. That contention seems to have been premised on the fact that in the written agreement between him and Witness 3 that was produced in Court, the signature of the Accused appears as acknowledgement for having received that sum of money only with further handwritten entries as to further sums having been handed over to the Accused by Witness 3. However, the fallacy of that argument lies in the fact that the Accused admitted having received a printer and a drill from Witness 3 that were meant to help him in the manufacture of the keyholders. I have noted, from the document produced, that the entries pertaining to the drill and the

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printer are also handwritten. This lends further credence to the version of Witness 3 and belies the account of the Accused.

I have also noted that the Accused seems to have been quite confused as to his own version. According to him, the alleged false allegation levelled against him by Witness 3 seems to have stemmed from the latter’s anger. As per his version to the police, that anger aroused due to a refusal of the Accused to complete an order. In Court, however, the Accused stated that it was his inability to complete an order due to lack of raw materials that gave rise to such anger.

It is clear to me that the Accused has been concocting a story to try and exculpate himself from a tricky situation. I have also factored in the several exchanges between the Accused and Witness 3 whereby it is clear that the Accused started playing a game of cat and mouse with Witness 3 when it dawned on the latter that he had been duped.

In Dalloz Droit Pénal V o Abus de Confiance, the elements of the offence of embezzlement are listed as follows –

“L’abus de confiance, tel qu’il est défini par l’article 408 du code penal implique les éléments constitutifs suivants : 1 o nature des choses sur lesquelles peut porter l’abus de confiance ; 2 o remise de la chose à titre précaire en vertu d’un des contrats déterminés par la loi, 3 o détournement ou dissipation ; 4o caractère frauduleux du détournement ou de la dissipation ; 5 o préjudice.”

In relation to the first element, money is definitely one of the items that may give rise to the offence of embezzlement.

Insofar as the second requirement is concerned, the embezzlement of money delivered to a person merely in pursuance of a contract of work with a promise of remuneration with the condition that same be used for a specific purpose is clearly one of the type of contracts covered by section 333 of the Criminal Code.

As to the embezzlement and the prejudice caused, Witness 3 has explained, under oath, that the works had not been carried out by the Accused as covenanted nor did the latter refund to him the money that was remitted in confidence. He has had, as a result, to incur interest on the money being given that it came from a credit card.

The fraudulent character of the embezzlement is also evident from the fact that the Accused repeatedly showed samples to Witness 3 to try and induce the latter into handing over more money to him. The Accused knew fully well that the money had been remitted to him for a specific purpose (as evidenced by the document entitled ‘Acknowledgement’ that was produced in Court) that was not being carried out nor did he intend to do so.

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I have already canvassed the issue of prejudice suffered by Witness 3. For reasons mentioned earlier, I shall consider only the sum mentioned in the Information, that is, Rs 59,100. As confirmed by Witness 3 in Court, he never received back any sum of money.

The prosecution has, therefore, been able to establish a prima facie case against the Accused which the latter has been unable to impeach.

There is clearly no merit in the plea of Not Guilty entered by the Accused.

Conclusion

For the reasons mentioned above, given that the prosecution has proved its case beyond reasonable doubt, I find the Accused guilty as charged.

H. H. A. Rohamally Senior District Magistrate

29 April 2026