R v Ikando Entertainment (Pty) Ltd (CR 96/2019) [2021] SCSC 972 (30 July 2021)

IN THE SUPREME COURT OF SEYCHELLES ('t- ~ Reportable [2021] SCSCo/ Cr 96/19 IF \ In the matter between THE REPULBIC (rep. by Mr. Revera) And Ikando Entertainment Director Veronique Anna Gonthier (rep by Mr B Julie) (pty) Ltd rep by ACCUSED Neutral Citation: TIle Republic v Ikando Entertainment (Pty) Ltd (Cr96/l9) [202l} SCSC~ Govinden CJ Accused convicted for the offence of issuing of a cheque without provision; defence of lack of mens rea; strict liability 18th; 21; 28 September 2020 30th July 2021 ORDER Before: Summary: Heard: Delivered The charge [1] The accused stands charged with one count of the offence of issuing cheque without provision contrary to and punishable under Section 299(A) (1) of the Penal Code. The charge reads as follows; Count 1 Statement of offence Issuing Cheque without Provision contrary to Section 299A (1) (a) of the Penal Code. (CAP 158) In that, Ikando Entertainment ( Pty) LTD represented by the director Veronique Anna Gonthier of Roche Caiman, Mahe , on the 3/'d day of July 2018, issued Mauritius Commercial Bank Cheque number 000546, in the sum of Seychelles Rupees Three Hundred and Fifty Thousand only ( SCR 350,000),to Monster Garage represented by its director Vanessa Sylvie Sinon, for the payment of which Cheque there is no sufficient provision. The law [2] The provision of the law under which the accused stands charged is to the following effect; Issuing cheque without provision 299A (1) Any person who- (a) issues a cheque on a bank, within or outside Seychelles, for the payment of which cheque there is no, or no sufficient, pre-existing, adequate or free provision; or .... shall be guilty of an offence and liable on conviction to imprisonment for jive years or to ajine of Rs. 50,000 or to both such imprisonment and jine. [3] There is also a procedural prescription requirement that needs to be met by the prosecution in this case and this is found under the provisions of Section 299A (2), which to the following effect; (2) A prosecution shall not be commenced in respect of an offence under subsection (1) (a) of this section unless the payee of the cheque, within one month of the date of such cheque, makes a complaint to the Police or to the Attorney General. [4] In India, the corresponding offence to our Section 299(A) (1) offence is found in Section 138 of the Negotiable Instruments Act 1881, which provides as follows: Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque withinfifteen days of the receipt of the said notice. [5] The essential ingredients of the offence under Section 138 are: (a) cheque is drawn by the accused on an account maintained by him with a banker; (b) the cheque amount is in discharge of a debt or liability; and (c) the cheque is returned unpaid for insufficiency of funds or that the amount exceeds the arrangement made with the bank, the offence standing committed the moment the cheque is returned unpaid. [6] The Indian case law on the application of Section 138 revolves mostly around the following issues; Cases oj "post -dated cheques". where it has been held that on the faith of payment by way of a post-dated cheque, the payee alters his position by accepting the cheque. If stoppage of payment before the due date of the cheque is allowed to take the transaction out of the purview of Section 138, it will shake the confidence which a cheque is otherwise intended to inspire regarding payment being available on the due date, Goaplast (P) Ltd. v. Chico UrsulaD'Souza, (2003) 3 SCC 232. In cases of "Signatures do not match", where it has been held that the expression "amount oj money ... is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such as "account closed", "paymentstopped", "referred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the "signatures do not match" or that the "image is not found ", would constitute a dishonour within the meaning of Section 138 of the Act, Laxmi Dyechem v. State of Gz,ljarat,(2012)13 SCC 375. It will not be available as a defence to the drawer that he had no reason to believe, when he issued the cheque, that it would be dishonoured, Dashrath Rupsingb Rathod v. State of Maharashtra, (2014) 9 SCC 129. [7] Having considered all the above, I have come to the conclusion that similar to the situation prevailing on India, Offences under our Section 299(A)(1) are of strict liability and as such the prosecution is only required to prove the material elements of the offence to the required standard of proof in order to obtain a conviction. [8] I am further comforted by the ruling of Judge Renaud in the case of R vs Pillay (Criminal Side No: 16 of 2006) [2013} scse 45 (06 May 2013); In which case he held that Offences under Section 299(A)(1) are of strict liability and as such, the Prosecution is only required to prove all the elements of the offence to the required standard of proof in order to obtain a conviction. [9] In Seychelles the essential elements of the offence that the Prosecution needs to prove beyond reasonable doubt, is however different from that of India given the differences in the wording of the respective penal provisions. Here the Republic simply needs to prove that; (1) the accused issues a cheque on a bank, within or outside Seychelles, for the payment of which cheque (2) there is no, or no sufficient, pre-existing, adequate or free provision; or .... [10] The procedural requirement that also needs to be proven beyond a reasonable doubt is that the payee of the cheque, within one month of the date of such cheque, made a complaint to the Police or to the Attorney General. The evidence [11] The prosecution was led by the evidence of police constable Karen Bonnelame who is attached to the Commercial Crime Unit. She was appointed as the Investigating Officer in this case and as part of her investigation, she sought for and obtained the incorporation documents of the accused. She also served Bank Warrants upon the Mauritius Commercial Bank, also hereinafter referred to as "the MCB ", for the obtention of information on the accused, IKando Entertainment (Pty) Ltd's bank account. This consisted of the "Opening Documents" of the account; specified signatures; signatories to the account, details of cheque books issued to the account holder and bank statements and any other information from the bank as to why cheque 00546 was dishonoured. She produced the Bank Warrant in evidence. During her investigation, she also issued a Bank Warrant and sought for information regarding the account of the Virtual Complainant, the business Monster Garage as represented by Vanessa Sinon, Account no. 565528. She had obtained all the information queried from the bank. She also produced this Bank Warrant in evidence. [12] During the course of her investigation, she sought for and obtained the registration document of the company Ikando Entertainment (Pty)Ltd, which proves that it is a proprietary company registered under the Companies Act and that its shareholders and directors are Veronique Alma Gonthier and her son Neil Gervais Jean Yves Gonthier, [13] Also as part of her investigation, the witness took a Statement under Caution from the representative of the accused, however, the Statement was not challenged. In her Statement, she stated as follows: I want to inform the Police that Vanessa is an ex employer of mine and there is a sense of trust amongst the two of us. During the course of the year, I came in an agreement with Paul Jean Vole. I had a plot of landfor sale and he brought a client to buy the land. After sometime, Paul told me that he was having some financial problems and asked me to lend him some cash, which I agreed, and then give him some money. Paul asked for more so I asked Vanessa to lend me two hundred and fifty thousand rupees. I do not want her to be aware so I told her that soon there shall be some money to be deposited on my Bank account therefore I shall refund her three hundred and fifty thousand rupees. Vanessa accepted and she transfer the money in my Bank account. I gave her a post -dated cheque with serial number 000546 on the name of my company, I can do Entertainment account number 0000000314757. I completed every details on the said cheque for them to realise that I wrongly wrote the date. 1til of June 2018 instead of II'h of July 2018. I expected the money to be deposited on my account for the said cheque to cash but unfortunately, that was not the case. Paul has not given the money for the land sales hence the referral to the drawer of the said cheque. I informed Vanessa that the money was not banked yet and that she should refrain from cashing the cheque. On the 1ih of July 2018 Vanessa called me when I invited her to my place where again 1related all the facts I shall be able to refund her that money as long as Paul does not refund me. It is true that I took the money from Vanessa. It is true that when I gave you the cheque there was no cash on my account. I am willing to refund Vanessa the money when I shall. The Republic also called the Head of Legal and Compliance of the Seychelles Commercial Bank Seychelles Limited (MCB), Mrs Brigitte Sabino. She was summoned with regards to giving evidence with regards to the accused company banking information, which are information that she retrieved following being served with a bank warrant by the police in this case. The witness confirms that the authorised signatories on the accused company are Veronique Anna Gonthier and Neil Gervais Jean Yves Gonthier. According to their signatory mandate either of them could sign for a cheque. She proceeded to produce the Bank Statement of the Ikando Entertainment (Pty) Ltd and the witness attention was drawn to the transactions pertinent to this case. She testified that there were two transactions on the 3rd of July 2021. The l·ttransaction was a credit transfer in the sum of two hundred and fifty thousand Seychelles rupees. The transaction details were entered as construction payment and it was from Monster Garage. The 2nd transaction on this date is a transaction whereby the accused company made a loan repayment to the bank in the sum of fifty two thousand and eight hundred, five rupees and zero four cents. [14] On the 4th of July, there was an issuance on an MCB cheque in the sum of three hundred and fifty thousand Seychelles rupees. Soon after that, there was a reversal transaction wherein the same cheque was reversed as the cheque was not cleared, followed by a 3rd transaction wherein the customer was charged a fail fee for the return of the cheque in the sum of RS 500. At the time that the cheque was issued, the account had only a positive balance of one hundred and twenty seven four hundred and twenty eight point thirty five cents. [15] Mrs Sabino testified that the returned cheque, Exh P12, was dated the 11thof June 2018.1t was drawn in favour of the Monster Garage by Anna Gonthier and that at the back of it contained the phone number 2527733. [16] The witness testified further that the Monster Garage, whose signatory is Vanessa Sinon, the Virtual Complainant in this case also holds an account with the MCB. It is a United States dollar account. She says that on the 3I'd of July 2018 there was an account transfer from this account in favour of the accused company, the sum was eighteen thousand, two hundred and eight dollars and thirty cents. [17] Mrs Sabino was not cross-examined. [18] The prosecution also called the Virtual Complainant. She testified that she is the owner of the business Monster Garage, which holds a foreign currency account number 0000565528 with the Mauritius Commercial Bank of Seychelles and she produced all documents in relation to the bank account. She testified that in the year 2018, the accused approached her and requested for a loan of SR 250,000 so that she could secure a loan from the Central Bank of Seychelles. She accepted the offer and on the 3rd of July 2018she transferred the sum of USD 187,208.30 which was equivalent to RS 250, 000 from the bank account of the Monster Garage to that of the accused as a loan. According to her, Ms Gonthier for the accused had promised that she would pay back the loan by the 11th day of July 2018 and that further she would give her SR 100, 000 as a gift in consideration of her help. She further stated that Ms Gonthier gave her Exh P12 for the amount ofRS 350,000 on behalf of the lKANDO Entertainment (LTD) on the same day and she presented the cheque on the same day. However, she testified further that on the 4th of July 2018 she was contacted by the bank and she was informed that the cheque had been dishonoured as the account of the payer had insufficient funds. The bank also sent to her Exh P 18, which was an unpaid cheque advice. She testified further that she was only aware of the date inserted on the cheque after she was given this information by the bank. She then contacted Ms Gonthier, who failed to give her any satisfaction and waited up to the 13th day of July 2081 and then reported the matter to the police. [19] The Defendant gave evidence under oath. She does not deny giving to the Virtual Complainant the cheque for the amount of RS 350,000 on the 3rd of July and that on that day there was no fund to honour the said cheque in her account. She stated that she dated the Cheque the 1101 of June instead of the 11th of July erroneously and the Virtual Complainant was to cash it on the 1101 of July. However, the latter banked the cheque before the said date and it bounced. She said that later she gave to Ms Sinon Rs 10,000 as part payment for the debt. As regards to the outstanding sum, she testified that both the Virtual Complainant and herself entered into a subsequent agreement that it will be set off against consideration of her renovating a house for the Complainant at Anse Royale at a price of RS 234,000 by one of her companies. She produced a written document purporting to have been signed by both of them regarding the construction work that she claimed was completed at the time of her testimony. She even invoiced Ms Sinon for the sum of RS 234,000. She claimed that the reasons why she could not repay back the Rs 250,000 ,with the additional RS 100000 in cash and on time was that she was scammed of this the sum loaned to her by a 3rd party and that it was that party that would have paid her back the RS 350, which was to be paid by to the Virtual Complainant. Under cross examination she admitted that the account of Ikando Entertainment (Pty) Ltd did not have RS 350,000 even on the 11til of July 2018. [20J The defence also called a constIUction worker who testified that he worked on the house referred to by Ms. Gonthier in her evidence. Analysis and determination. [21] I have scrutinised the evidence tendered before the court and I have tested the veracity of the different witnesses especially after they had been tested through cross examinations. Having done so I am satisfied that at the time of the presentation of the cheque by the Director of the Accused Company, there were no funds in its account to honour the cheque. Ms. Gonthier claim that this was a post-dated cheque and it should have been dated the 11th of July 2018 (though erroneously the date was entered as the 11th of June). However, through her own testimony and her Statement under Caution even on or after the 11th of July, at which time she claimed she informed the Virtual Complainant that she should have cashed the cheque, evidence shows there was still no money in the accused account. This is supported by the evidence of Mrs Sabino and the Virtual Complainant. I am therefore satisfied beyond a reasonable doubt that the Director of the accused company, Ms Veronique Anna Gonthier, issued a Mauritius Commercial Bank Cheque bearing number 000546 in the sum of Seychelles Rupees Three Hundred and fifty thousand on the 3rd of July 2018 to Monster Garage represented by its Director, the Virtual Complainant, within Seychelles, for the payment of which cheque there was no sufficient provision. [22] I am also satisfied, on this standard of proof that the Virtual Complainant in this case made a complaint to the Police within one month from the cheque being returned to her for insufficiency of funds. [23] The argument of the Accused in its defence that the Creditor ought to have informed her prior to presenting the cheque for payment, in my judgment, cannot provide a defence in law, given the nature of this offence. The same applies for the argument that the cheque should not have been presented on the 3rd of July because evidence shows that irrespective of the date of presentation there was never any funds in the account in order to satisfy payment. Moreover, the predating of the cheque by Ms Gonthier to a date prior to it being made only served to further confused the Complainant. [24] Moreover, the strict liability nature of this offence prevents the defence of set-off against the consideration of building the Virtual Complainant's house to come to fruition. In law, it will not matter whether an accused attempts to repay the debt founded on a bounced cheque after it is returned for lack of payment, if the Virtual Complainant decides to maintain her complaint. [25] I have further considered the defence of the accused to the effect was scammed. To me this defence remains un-proven. I do not believe Ms. Gonthier in that respect. She informed the Virtual Complainant that the funds were going to secure a Central Bank loan with the financial assistance that she was given. I believe the evidence of Ms Sinon to that effect and I disbelieve her evidence. She was not honest in her transaction with the Virtual Complainant. This is further confirmed by the fact that Ms Gonthier paid her personal loan out of the funds given to her on the very day that the money was transferred to the accused account. Having carefully analysed the evidence, I am of the view that the insertion of the date of the 11th of June on the cheque was intentionally done by the accused in an attempt to provide her with a defence of carelessness on the part of the creditor and failure to carry out her due diligence on the document. [26] I therefore reject these lines of defences taken by the Accused as being simply frivolous excuses for its failure to honour the undertaking. [27] On the basis of my findings above, it is my judgment that the prosecution has proved beyond reasonable doubt that the accused issued a cheque on the Mauritius Commercial Bank in Victoria, Mahe, Seychelles, being for the payment of which cheque there was no sufficient provision, contrary to and punishable under Section 299(A)(l) of the Penal Code. [28] I accordingly convict the Accused the Ikando Entertainment (Pty) LTD as represented by its Director Veronique Anna Gonthier as charged. Signed, dated and delivered at Ile du Port Victoria on 30th July 2021. Govinden CJ 11