21st July, 2017
A brief on the case between the Lagos State Government and two British citizens.
THE STATE OF LAGOS
VERSUS
DEEPAK KHILNANI (M)
SUSHIL CHANDRA (M)
CR.NO: 893/2013
(Supplementary)
The above stated case, your letter dated 5th July, 2014 Ref. No: AR: 3100/ZN.2/’X’ SQD/VOL.1 and our Legal Advice dated 30th April, 2015, Reference No: LJP/MISC/2014/387 refer please.
Further to the said Legal Advice, this Office had filed Information Papers before the High Court of Lagos State, Ikeja Judicial Division and same was assigned to Honourable Justice Ipaye.
However, in the course of prosecuting the case, several petitions were received by this office and other Legal Issues arose in the course of preparing for the trial of the case before the Honourable Court which necessitated a thorough Review of the facts of the case.
The facts contained in the duplicate casefile are insufficient to sustain the charges preferred against the defendants which are as follows;
- Conspiracy to Defraud contrary to Section 422 of the Criminal Code Law, Cap C.17, Vol. 2, Laws of Lagos State, 2003.
- Cheating contrary to Section 421 of the Criminal Code Law, Cap C.17, Vol. 2, Laws of Lagos State, 2003.
- Stealing contrary to Section 390(6) of the Criminal Code Law, Cap C.17, Vol. 2, Laws of Lagos State, 2003; and
- Making False Statement contrary to Section 436 of the Criminal Code Law, Cap C.17, Vol. 2, Laws of Lagos State, 2003.
- It is clear from the facts of the case that Mr. OlajideRosiji, Mr. Ahuwalia and Mr. Deepak Khilnani came together to form a company known as Greenfuels Ltd and that the share capital of the company was distributed amongst the three promoters.
That the Company Greenfuels Limited sometime in 2009 procured equipment from Gentec Limited, and it is not in dispute that equipment were supplied by Gentec Limited, however the allegation was that it was overpriced by Gentec Limited and the bases for the allegation is the KPMG report dated 2014 which states that in comparing the manufacturer’s price with the prices the equipment were supplied by Gentec Limited, there was a marked difference. Thus the Audit Firm posited that the equipment may have been over-invoiced by USD2, 076,944and on this basis the transaction was alleged to be fraudulent by Greenfuels Limited.
We also studied the contract for the supply of the equipment between Greenfuels Limited and Gentec Limited and observed that it was not a cost pass through contract. That indeed Gentec specifically highlighted the price regime of the equipment to be supplied and the modalities of the supply was duly agreed to by the contracting Parties.
The issue however is whether under Criminal Law, an offence has been committed either through trick or fraud.
Firstly, Gentec is a Limited liability company, a legal entity with a different legal personality from the Defendants.
Secondly, in order to sustain a charge of stealing, the Prosecution must show the following:
- The ownership of the thingstolen.
- That the thing stolen is capable of being stolen.
- The fraudulent taking or the fraudulent conversion.”
See GODWIN CHIANUGO (alias Godwin Isienei) &Ors v. THE STATE, (2001) LPELR- 7006 (CA),
There is absolutely nothing in the duplicate casefile to show that Gentec Ltd. or through its agents by tendering for the procurement of the equipment without more, defrauded or obtained the order by trick. The complaint is not that the invoice did not meet the order but that the invoice met the order but was expensive.
The fact that Mr. Deepak Khilnani also has interest in Gentec Ltd., is not by itself evidence of fraud or trick without more. It must be shown beyond reasonable doubt that there was some orchestrated scheme to cheat or to defraud Greenfuels Ltd. by Gentec Ltd. in consonance with the Defendants. There is no evidence of such in the duplicate casefile.
Furthermore, it is apparent from the facts in the duplicate casefile that the equipment supplied was further to a contract between Gentec Ltd. and Greenfuels and money paid to Gentec pursuant to that relationship. Therefore, property in the money had passed to Gentec legitimately and not fraudulently as contended by Greenfuels Ltd. Thus, the issue of stealing the money either by Gentec or the Defendants should not arise at this stage, if there is any claim as to inflation of prices, it should lie in a civil claim and not a criminal case. Please see The State vs Osler (1991) 6 NWLR, Pt. 199 at 576.
Also, there is nothing in the casefile to show that either of the Defendants influenced the quotation of prices to Greenfuels or benefitted from any profit that could have been made by Gentec Ltd. because there is nothing in the casefile that traced any profit of the sales to them or that showed that they influenced the alleged high prices presented to Greenfuels, a tender which Greenfuels could have rejected.
Facts also revealed that the 1st Defendant was actually a representative of Gentec in Nigeria when he was approached to join in promoting the new company. The facts reveal that at least Mr. Anil Ahulwalia knew of this fact.
Finally, on the issue of making false statement to the Corporate Affairs Commission knowing same to be false with intent to defraud the Shareholders and members of Greenfuels Ltd., it is clear from the statements of Pages A.8-A.11 A.15of the casefile that the responsibility of filing documents relating to the affairs and shares of the company lies with the Company Secretary of the company. Page A.18- NnennaEjekam of the law firm acting as company secretary for Greenfuel Ltd.stated that, by a board resolution, it was agreed that the shares of Anil Ahluwalia were to be transferred to Mr. Ola Rosiji but that regrettably, due to Administrative oversight and procedural lapses on the part of the law firm, a formal instrument was not prepared to show transfer of shares between Mr. Anil Ahluwalia and Mr. Ola Rosiji.
She stated further that recommendations were madeon the procedure for correcting the lapses but rather than the Directors of the Company accepting the recommendations, they went to court to challenge the transaction.
The Company Secretary also stated that the Form CO2 filed was based on information they were given and presented to the Directors and they duly signed.
On the other hand, Deepak Khilnani totally denied making any statement or submitting any forms to any Officer of CAC and there is no cogent evidence to suggest otherwise except speculative conclusion that he must have made the statement because he stood to benefit from the transfer.
In The Case OfSTATE V. GWANGWAN(2015) LPELR-24837(SC)It Was Held That Where There Is Doubt As To The Suspect Committing An Offence, The Doubt Must Be Resolved In His Favour.
The allegation against the Defendants is based mainly on speculation, suspicion and conjecture and mere suspicion no matter how strong, cannot take the place of legal proof; See Liman vs State (2016) LPELR-40260 (CA).
Your duplicate casefile is hereby returned.