Supreme Court of Mauritius, 27 février 2020, 2020 PL2 21 – Pce v Abdolla

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Pce v Abdolla

2020 PL2 21

POLICE v ABDOOLLA Haroon-Al-Rashid

CN:10145/17 IN THE DISTRICT COURT OF PORT LOUIS (2nd Division) In the matter of:

POLICE V ABDOOLLA Haroon-Al-Rashid

JUDGMENT

Accused stands charged under one count of information, with the offence of Embezzlement in breach of section 333(1) of the Criminal Code. Accused pleaded not guilty to the charge and was represented at trial stage.

Prosecution called witness no.1, CPL Poteeram who read and produced the two defence statements of the accused, marked as Doc A and Doc A1.

The witness was duly cross-examined.

Prosecution then called witness no.2, Mr Hemman Kumar Hurrynaran, the complainant, who stated that in 2012 or 2013, he was staying in a convent and that he went to Italy to undergo dialysis. Whilst at

hospital he met with the accused, who brought him food. As he was sleeping on the streets, he contacted social security and they made arrangements for him to go to a home. He stayed thereat for approximately a year. He explained that the accused stays in Plaine Verte and that the latter used to visit him at the convent to bring him food. Mr Hurrynaran stated that he gave the accused the sum of rs 25,000 for safe keeping and that the said sum represented arrears on his pension. He explained that he remitted same because he was then sleeping on the streets. He also explained that he remitted a treadmill to the accused, which he obtained from his boss and valued at Rs 19,000. He asked the accused to keep same, given it was a gift from his boss for as long as he was sleeping on the streets. It also came to light that the parties had a joint account and that same was cancelled. The witness explained that the accused is well-known to him and that he recovered neither the money nor the treadmill.

The case was then closed for the Prosecution. The accused testified under oath. The accused confirmed the content of his statement and added that the accused picked up the treadmill in presence of his daughter. He denied having taken money. The accused was cross-examined. Counsel for the Defence called as defence witness, Mr Oomar Abdoolla, son of the accused, who explained that the complainant came to pick up the treadmill with his daughter. The witness was cross-examined. The case was then closed for the defence. The Court has given due consideration to the evidence on record. With regard to the offence, the law is as follows:

“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 has 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.”

The following was stated in the case of NILMONY D VS THE STATE (2007) SCJ 173 where their Lordships made reference to notes 447 and 448 of GARÇON, CODE PÉNAL ANNOTÉ (1959 EDITION) : “The learned author points out, in another part of note 447, that remittances “pour un travail salarié ou non salarié” (“for any work with or without a promise of remuneration” as per the words of sect. 333 of our Criminal Code) do not fall within the ambit of a mandat : “Les mots ‘pour un travail salarié ou non salarié’ visent le cas où l’auteur du détournement s’est engagé à accomplir pour autrui un travail matériel ou à lui rendre certains services qui ne constituent pas un acte juridique” (emphasis added)

The Law provides that an offence of embezzlement takes place when a person fails to uphold the purpose for which money was remitted to him in pursuance of a contract of work with promise of remuneration.

The case of SBM Mohamad v State[2012] SCJ 270 made reference to Cheveau et Helie – Theorie du Code penal – Tome 5 – paragraph 2303,commenting on Article 408 French Penal Code, for a successful prosecution in the present case it would be incumbent to demonstrate that the following conditions are mutually present :- “1. Qu’un détournement frauduleux ait été consommé 2. Que ce détournement ait été commis au préjudice des propriétaires, 3. Qu’il porte sur les deniers, 4. Que les effets ont été remis pour un travail non salarié à la charge d’en faire unusage ou un emploi déterminé.”

The Court took note of the following in the present case: • The declaration was given three years after the alleged offence occurred. There is no certainty regarding the time frame within which the offence occurred, given that the term “That on or about in the year 2013” appears to be a very long period with regard to the alleged offence and lacks substance.

• The subject matters of the present case, namely the money and treadmill were never recovered. • No receipt was produced to establish the basic ownership or the very existence of the treadmill. In Court, the complainant made mention of his boss who allegedly gifted him a treadmill, but there is no tangible evidence to establish that the complainant in effect owned a treadmill which he left in the custody of the accused. • The evidence reveals that the police ascertained that the complainant received a sum of money from the Social security. Other than the word of the complainant, there is no other piece of evidence to establish that the sum of Rs 25,000 was in effect remitted to the accused. • The complainant cut a poor figure in Court. He appeared to have a highly selective memory. He was unable to remember essential details in the course of cross-examination. True it is to say that cross-examination is not a memory test, but when taken globally, the testimony of the complainant appears dubious. • The accused maintained his version when he testified under oath and the Court found him to be convincing. • The Defence witness brought no enlightening evidence in this case so that the Court found his version to be of no effect.

The Court takes the view that there are major loopholes in the evidence ushered by the Prosecution, given there is no evidence to implicate the accused, save and except for the shabby testimony of the complainant. The Court takes the view that the shadow of a doubt has been cast over the present case, which should benefit the accused. The Prosecution having failed to prove its case beyond reasonable doubt, the case is accordingly dismissed.

Mrs Manjula Kumari Boojharut ( A.Senior District Magistrate) Delivered on 27 February 2020