POLICE V PLAICHE ADELE JAYNE LYSA

2019 ROD 17

Cause Number: 664/2018

THE COURT OF RODRIGUES

In the matter of:-

POLICE

LYSA JAYNE ADELE PLAICHE

Introduction.

1. Accused stands charged with the following offences.

2. Under the first count, Accused stands charged with the offence of larceny by servant in
breach of section 301 (1) and 309 (2) (a) of the Criminal Code.

3. Under the second alternate count, Accused stands charged of possession of property
unlawfully obtained by means of a crime in breach of sections 40, 301 (1) and 309 (2) (a)
of the Criminal Code, as amended.

4. Accused pleaded not guilty to both counts and Accused was represented by counsel for
part of the trial.

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The trial.

5. At the opening of its case, the prosecution produced the following documents.
(i) an album containing two photographs of a car battery, make- Éclair (Doc.A, A1
and A2).
(ii) A certificate of incorporation of Rod Island Traveller’s Pride Ltd (Doc.B).
(iii) The business registration card of Rod Island Traveller’s Pride Ltd (Doc.B1).
(iv) A shipping order in respect of 49 packages, 4 tyres, 3 batteries, 5 pail of engine
oil and 37 cartons of spare parts was produced (Doc.C).

6. Four statements which were recorded from Accused were read and produced by
Woman Police Constable Favienne (Doc. D, D1, D2 and D3).

7. Thereafter, Joseph Wilson Cupidon (“W4”) testified that he is a shareholder in Rod

Island Traveller’s Pride Ltd. He stated that after an inventory which he conducted, he
noticed that a value of Rs. 52,000 of goods were missing. He stated that it was Accused
who was working as a salesgirl at the shop at the material time and that she was earning
a sum of Rs. 6,000.

8. Surendranath Bickharry (“W4”) was the last witness to be called for the prosecution. He
testified that W4 gave a declaration to the police against Accused for fraud and this was
regarding motor vehicle spare parts which included car batteries, gallons of oil, car
shampoo and many other items which have been stolen. He testified that the value
stolen was between Rs. 50,000 and Rs.55,000.

9. For the defence, Accused made a statement from the dock and stated that the
statements which she gave to the police are true. She went on to say that she took
employment in February and was in charge of the spare parts and that there was the
niece of W3 who was in charge of the till and of the administration. The niece was made
redundant and she (Accused) was made in charge of the shop and also of the cash till.

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 She informed the direction that they will have to look for someone else to work on the
cash till but nothing was done in that direction. She then looked for another job in
Mauritius. She informed W3 that she was going to leave and also that there were
batteries which have been sold on credit terms. An inventory was conducted for two
days and W3 told Accused that everything was in order. She was then informed that a
declaration was made against her by W3 on the day that she had to travel to Mauritius.

The law.
10. As regards to the case against Accused, section 309 (1) and 309 (2) (a) provides that

(1) The punishment of penal servitude for a term not exceeding 12

years shall be applied to any person convicted of the crime of
larceny committed with external or internal breaking, scaling, or
false keys, but not attended by any of the circumstances specified in
the preceding sections.

(2) The like punishment shall be applied-

(a) where the offender is a servant, or a person on wages, even

if the larceny has been committed upon an individual whom he
did not serve, but who was either in the house of the master of
such offender, or in that to which such offender had accompanied
his master;

Assessments.

11. I have assessed all the evidence on record.

12. It is not in dispute that Accused was employed at Rod Island Traveller’s Pride Ltd at the
time when the larceny was committed at the said company.

13. Now, as regards to the case for the prosecution, there are four statements which were
recorded from Accused and which Accused stated from the dock that what she said in
those statements were the truth.

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 14. In the statement which was recorded from Accused on 10 January 2018 by Woman
Police Constable Favienne (Doc.D2), Accused was confronted with a guarantee card of
a car battery which was sold at the time when she was still working for the company and
that the sale was made to Emmanuelle Raboude. However, no receipt was issued for
the said sale. Furthermore, it was put to Accused that the car battery was part of the
items which were missing during the inventory. In rebuttal, Accused denied of not having
issued a receipt and maintained that she gave Emmanuelle Raboude his receipt, the
guarantee card and that she also inserted all the entries in the sales book. She went on
to say that she sold two batteries on credit sale and one of those sales is in respect to
the sale made to Emmanuelle Raboude. She stated that she was given the money for
the credit sales which was in the sum of Rs.8,000.

15. However, on 24 January 2018, a further statement was recorded from Accused by
Police Constable Perrine. In that statement, Accused agrees that she made the sale of
the car battery to Emmanuelle Raboude on 28 August 2017 and that the sale was in the
sum of Rs.3,400. She further agreed that she did not give any receipt to Emmanuelle
Raboude and stated that she forgot to issue a receipt to the latter and also forgot to
make the necessary entry.

16. In my view, the explanation given by Accused makes no sense and I find same to be
illogical. This is being said because it would make no sense that Accused would issue
the guarantee card to Emmanuelle Raboude but will forget to issue to him his receipt
and make the necessary entry in the sales book. Furthermore, this explanation only
came forward when Accused was confronted with the version of Emmanuelle Raboude
and if that was not the case, she would have maintained her position that she did issue a
proper receipt as per her version in her previous statement. Hence to that effect, I find
that, relying on the strong evidence adduced, I find Accused guilty of the larceny of the
battery which belong to Rod Island Traveller’s Pride Ltd and which Accused sold to
Emmanuelle Raboude and took the money for her.

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 17. As regards to the mens rea, I find the circumstances can only lead me to the irresistible
inference that Accused wilfully committed the said act.

18. As regards to the other items which were missing during the inventory and which came
to a total sum of Rs.52,805 as per the information, true it is that there is a possibility that
Accused may have stolen same but the point remains that apart the case of Emmanuelle
Raboude, there is no direct nor sufficient circumstantial evidence to say that it is
Accused who committed the larceny of the other items which has been found to be
missing during the inventory. True it is that it was Accused who was in charge of the
shop at some point in time but there is nothing to say that all the items were there or
were missing at the time when the niece of W3 was made redundant. Hence, in that
context, I find that the prosecution has failed to prove the remaining items which have
been stolen and which comes to a total of Rs. 52,805 minus Rs. 3,400 which the price of
the battery which Accused sold to Emmanuelle Raboude. Hence, this being so, I amend
the information proprio motu and delete the sum of Rs.52,805 and substitute therefor by
the figure Rs.3,400. I also delete the “and several spare parts” after the word Éclair so
that it reads that it is only an Éclair battery which has been abstracted. This amendment
is being made as no prejudice has been caused to Accused by the said amendment.

Conclusion.

19. Therefore, for the reasons set forth above, I find Accused guilty under the first count and
the alternative Count II is dismissed against her.

D.J.A Dangeot
Senior District Magistrate
Delivered on 28 May 2019.
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