Supreme Court of Mauritius, 9 avril 2026, 2026 INT 107 – Police v Karamuth & Ors – Ruling

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Police v Karamuth & Ors – Ruling

2026 INT 107

CN:147/2020

IN THE INTERMEDIATE COURT OF MAURITIUS (FINANCIAL CRIME S DIVISION)

In the matter of:

Police v/s 1. Mohammad Osman KARAMUTH 2. Nohman HEATHY 3. Farhana MULIA

RULING 1. The accused no.1 is being prosecuted under count 1 for the offence of Making use of a forged private writing in breach of sections 108(a), 111, 112 & 121 of the Criminal Code; under count 5 for the offence of Swindling in breach of sections 330(1) of the Criminal Code, and under count 6 for the offence of Money Laundering in breach of sections 3(1)(b), 6 & 8 of the Financial Intelligence and Anti-Money Laundering Act (FIAMLA) . The accused no.2 is being prosecuted under counts 2, 3 & 4 for the offence of Forgery in a bank writing in breach of sections 108(b) & 121 of the Criminal Code. The accused no.3 is being prosecuted under counts 7 & 8 for the above offence of Money Laundering and its corresponding sections. All three accused parties pleaded not guilty to the Information and were represented by their respective defence counsels.

2. During the course of the prosecution’s case and the examination-in-chief of witness no.5, the prosecution sought to have the witness produce three documents, briefly described as two ‘import permits’ and one ‘vaccination

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report’ respectively. Objection on behalf of the accused no.1 was initially raised on the ground that both documents would amount to hearsay evidence. The motion was subsequently revised as follows: The import permits as averred in the particulars section of count 5 of the Information and sought to be produced by the prosecution are not original documents. The law requires the original documents when the issue is one of forgery. The brief rebuttal from the prosecution was that; the proposed documents were indeed copies and they were produced as such to the bank. The documents are allegedly fake as particularised under count 5 of the Information.

3. Witness no.5 was examined for the purposes of the argument. He had stated at trial that he was the Barclays business support and corporate recovery manager at Barclays bank in 2009. He was deputed by the bank to report the matter to the police. During the argument, he stated that the bank was provided with three documents, namely, an import permit (062869) valid from 18.05.09 to 30.11.09, an import permit (062875) dated 18.05.09 and a vaccination certificate dated 01.08.09. He confirmed that they were all copies. Those documents were provided to the police as they were obtained by the bank. He maintained that there were no originals of the documents.

4. Under cross-examination, the witness stated that he did not personally receive the documents because that would be the task of the relationship manager. The file is transferred to him only when an issue arises with it. When asked whether he would be in a position to say whether any of the documents in the file transferred to him had been altered or removed, he stated he cannot confirm same. But he added that the documents in the file should be the same that were provided to the relationship manager.

5. It is not disputed that the three documents are not the originals. It is assumed that they have been photocopied. It is noted that the court is not privy to those documents for assessment. The count 5 laid against the accused no.1 is one of swindling. In broad terms, the count was particularised as; the accused no.1 made use of those documents, which are alleged to have been forged, to obtain a loan from the bank.

6. For the purposes of the argument, the case for the prosecution was that the three documents were obtained by the bank, in the state in which they are currently in. During the examination-in-chief of the witness no.5, it was made

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clear that such was the case. He was cross-examined on the issue that he did not personally receive the documents, but it would have been a relationship manager who would have taken possession of the documents from the bank customer. He maintained that it should be the same documents which would have been kept in the file. The issue raised by the defence as to whether a bank would have accepted copies of permits and not the originals for a loan, might be pertinent for trial. At this stage the case for the prosecution is that the bank accepted copies of the said documents as they are. I find that the evidence from the prosecution has not been shaken by cross-examination. The evidence of the witness is reliable and truthful, in that, it would be sensible for the bank to transfer the file with all the documents as they were received, to another department of the bank.

7. The initial principles of best evidence rule established that primary evidence should be adduced in court. The rule has been updated to fit the technological advances used for copying documents. If the primary evidence is not available, secondary evidence could be accepted and the weight would be assessed by the court. The evolution has now reached a point where the rule is rarely strictly applied, so that, the issue is no longer one of admissibility, but the weight that is to be attached to secondary evidence. The following is of relevance.

8. There are some references, mostly in old cases, to a 'best evidence rule' by which at common law only the best available evidence of a fact in issue was said to be admissible. However, whatever status this rule may once have enjoyed, there is now very little modern authority for its continued survival and some express assertions of its demise. The general rule now appears to be that whether a given item of evidence is the best available evidence or not goes only to its weight, not its admissibility, vide Halsbury's Laws of England > Criminal Procedure (Volume 27 (2021), paras 1–442; Volume 28 (2021), paras 443–938) > 10. Evidence and Witnesses > (1) General Principles of Evidence in Criminal Cases.

9. At common law, the general rule, now regarded as the only remaining instance of the best evidence rule, is that a party seeking to rely upon the contents of a document must adduce primary evidence of those contents, i.e. either the original document in question, a copy of an enrolled document, or informal admissions made by parties concerning the contents. Thus if an original document is available in one's hands, one must produce it and one cannot give secondary evidence by producing a copy (Kajala v Noble (1982) 75 Cr App R 149

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at p. 152). A party having a document available in his or her hands means a party who has the original of the document in court, or could have it in court without any difficulty (Governor of Pentonville Prison, ex parte Osman [1990] 3 All ER 701 at p. 308); vide Blackstone's Criminal Practice 2026 Part F Evidence, Section F8.

10. In R v. Governor of Pentonville, Ex Parte Osman [1990] 1 WLR 277, the Court addressing itself on the best evidence rule said that it had served an important purpose in the days of parchment and quill pens but that since the invention of carbon paper and, still more, the photocopier and the telefacsimile machine, that purpose had largely gone. It, however, observed that where there was an allegation of forgery the Court would attach little, if any, weight to anything other than the original; so also if the copy produced in Court was illegible. In plain terms, what the Court was saying is that with the advance of technology and the perfection of copying processes, the best evidence rule had lost much of its original lustre and “raison d’être” and that the original problem of admissibility would now be transposed into that of cogency where the Court would have to assess “ad hoc” the weight which it would be prepared to attach to a particular copy of a document in the particular circumstances of each individual case, vide State v Sir Bhinod Bacha 1996 SCJ 218

11. It is settled that primary evidence is to be adduced when it is either in possession of the witness in court or would be readily available if needed. The case for the prosecution is that the original documents were never provided to the bank, and thus are not available to be produced in court. No reasonable doubt has been established by the defence that the original documents actually exist. If the documents are ultimately proved to be forged, it is not borne out at this stage that the copies were not themselves the mechanism of the forgery.

12. For these reasons, I hold that the three documents, namely, the two import permits and the vaccination report, are admissible as proposed by the prosecution. Their weight is to be assessed at trial by the court. The motion of the defence as to their admissibility is thus set aside.

P K Rangasamy

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Magistrate of the Intermediate Court 09.04.26