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1 DALAM MAHKAMAH SESYEN DI SEREMBAN DALAM NEGERI NEGERI SEMBILAN DARUL KHUSUS (BIDANG KUASA SIVIL) NO KES: NA-61R-15-12/2021 ANTARA PENDAKWARAYA ...PERAYU LAWAN GANESH A/L NATHAN ...RESPONDEN ALASAN PENGHAKIMAN The charge against the accused is as follows: Pertuduhan “Bahawa kamu pada Disember 2017 jam lebih kurang 11.00 pagi berhampiran Restoran Kassim Dua Puluh Dua Puluh, sebagai penjawat awam iaitu Penolong Pegawai Kesihatan Gred U29 di Unit Inspektorat dan Pendakwaan, Pejabat Kesihatan Daerah Seremban telah menyetuju terima untuk diri kamu, suatu barang yang berharga dengan tanpa balasan iaitu wang tunai berjumlah RM1,400.00, daripada Mohamed Kassim bin Mohamed Sharip, pemilik Restoran Kassim Dua Puluh Dua Puluh, yang mana kamu mengetahui ianya ada kaitan dengan kerja-kerja rasmi kamu dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 165 Kanun Keseksaan” The accused understood the charge and claim trial. Brief facts The accused is a public servant a public as defined under Section 21 of Penal Code. PW1 was called to give evidence on the employment of the accused as a public servant. The Defence did not dispute that the accused is a public servant. PW2 is a SPRM Officer. PW2 arrested the accused as per the notice under Section 53(3) of SPRM Act 2009. This is an admitted fact. PW3 is the complainant. PW3 is the owner of Restoran Kassim 2020, which has two branches located at Garden Homes and Taman Permai. According to PW3, on 16.11.2017, officer from Pejabat Kesihatan Daerah (PKD) came to the Taman Permai restaurant for an inspection. Two workers of the restaurant were issued with summons for failure to wear head cover and apron. The third summons issued against PW3 as the owner of the restaurant in Taman Permai. He was not at that restaurant during the inspection. The rubber stamp of Garden Homes restaurant was used in acknowledging receipt of the summons. PW3 said he is well versed with the summons process as he was summons by PKD many times before. PW3 went to PKD to inquire about the summons. He met the accused at PKD Office. He knew the accused. They have met several times before. The accused gave PW3 two weeks to settle the summons which amounted to RM800. On 20.12.2017, PW3 went to PKD Office to settle the summons. He brought RM800 with him. However, the accused told PW3 that he was two days late and the summons have been registered in court. The amount to be paid is RM1,400. PW3 was told by the accused that he is the Prosecuting Officer (PO) of the case and PW3 can give the money to him to settle the fines in court. The accused instructed PW3 to hand over the money at Taman Permai restaurant. The accused came to Taman Permai restaurant on 22.12.2017. He was driving a black colour Honda. PW3 got into the front passenger seat and gave the accused RM1,400 and the summons. PW3 reminded the accused to give him the receipt. The accused dropped PW3 in front of the restaurant. At that moment PW3 called his worker (Palamivelu Arunraj) and warned the worker to wear head cover and apron in the presence of the accused. Whilst PW3 was in India, he was informed by his worker that they have received a letter to attend court on 4.10.2018. Upon returning from India, PW3 went to PKD Office to inquire about the court matter. The accused was not at the office. PW3 attended court on 4.10.2018. The accused was the PO. The accused instructed PW3 not to stand up when his name is called in court. When PW3 case was called in court, PW3 did not stand up. The accused who was the PO, proceeded to apply for warrant of arrest. Warrant of arrest was issued against PW3. This proceeding was recorded in court RVT system and tendered to this court as exhibit. After that, PW3 tried for several days to contact the accused but to no avail. PW3 then went to PKD Office and met PW5. PW3 told PW5 what transpired between him and the accused. This conversation was recorded by PW5. After PW3 made the complaint to PW5, the accused called him. The accused ask PW3 about his conversation with PW5. PW3 informed the accused that he told PW5 about the money taken by the accused. The accused pleaded to PW3 to change his story. The accused told him that he used the money for his mother medical treatment. PW3 refused to change his statement. PW3 secretly recorded his conversation with the accused which was 29 minutes long. PW3 gave this recorded telephone conversation to PKD Office. This recorded conversation was not tendered in court. PW4 is an officer of PKD. PW4 served the summons to PW3 and his workers to appear in court on 4.10.2018. These summons were marked as exhibits in this court. PW5 is the superior officer of the accused in PKD. According to PW5, the accused is responsible for the summons issued against PW3 and his workers. If the summons are not paid on time, the summons will be registered in court. PW5 met PW3 at PKD Office. PW3 told PW5 what transpired between him and the accused. In cross examination, PW5 informed that court that the accused took over the Investigation Paper (IP), from Mohd Nazir. Referring to the IP, it was the accused who requested consent to prosecute against PW3 and his workers. PW6 is an officer at PKD. He was the one who inspected the restaurant in Garden Homes and issued the summons against PW3. According to PW6, PW3 was in attendance when the summons were issued. PW7 is an officer at PKD. He was involved in the inspection of the restaurant in Taman Permai and served the summons to PW3’s workers. PW8 is an officer at PKD. He was in the inspection team at Taman Permai restaurant and served the summons to PW3’s workers. PW9 is the finance clerk in PKD. She confirms that no payments were received in respect of the summons issued against PW3 and the workers. PW10 is the former IO for the summons of PW3 and the workers. PW10 handed the IP for the summons to the accused when he was transferred out from PKD Seremban. At that juncture, the summons were still at compound stage. PW11 is a SPRM officer. PW11 received instruction from his superior to open a report against the accused. PW11 never met PW3. The information in the report was given by his superior. PW12 is the IO from SPRM. PW12 open an investigation upon receiving the report from PW11. PW12 called PW3 to record his statement. PW3 told PW12 that he went to PKD Office and met the accused. PW3 asked for a reduction of compound amount and was informed by the accused that the amount is RM800. PW3 further informed PW12 that when he came back to PKD Office about two weeks later to pay the compound, PW3 was informed by the accused that he was two days late. The accused informed PW3 that the amount is increased to RM1,400. However, since the accused is the PO of the case, he can help to settle the case in court. The accused instructed PW3 to hand over RM1,400 to the accused personally. PW3 agreed to do so. The money was handed over by PW3 near Taman Permai restaurant in a car driven by the accused. PW12 was told about the incident in court whereby arrest warrant was issued against PW3. After that, PW3 made a complaint to PW5 about the accused conduct and money that was paid. PW3 hander over the recorded telephone conversation he made to PW5. Based on the complaint made to PW5 and the recorded audio conversation between PW3 and the accused, PKD conducted a domestic inquiry against the accused. Dr. Hafizan Arifin, who chaired the domestic inquiry, seeked the assistance of an Indian officer to translate the conversation which was in Tamil. The translated version is produced in PW12 Witness Statement. However, the audio conversation that was kept in Dr. Hafizan’s computer was lost because of virus. PW12 unable to retrieve the recorded audio conversation from PW3 telephone because he had sold off his telephone. As for the call logs of the telephone, PW12 stated that it cannot be obtained since it happened more than the one year before the investigation started. Findings The Prosecution’s case against the accused is based on the oral testimony of PW3. This is a past payment case. The money that is said being paid to the accused cannot be traced anymore. As such, the prosecution built it case on the surrounding circumstances which support the assertion made by PW3. This court is well aware that in situation of past payment, whereby the accused is not caught red handed, the Prosecution can still be successful in its case by producing surrounding supporting evidence. Authorities on this issue are numerous as referred to in the Prosecution Written Submissions. Each case has its own peculiar set of facts. Bearing in mind to the authorities of past payment referred by the Prosecution, this court will now proceed to examine the evidence of PW3 and the surrounding evidence that can point to the guilt of the accused. PW3 is an interested witness. Summons were issued against him and his workers and PW3 was anxious to settle the summons. And this was not the first-time summons were issued against him. PW3 is well informed about the procedures of summons issued by PKD. Thus, after being issued with the summons, PW3 went to PKD Office to ask for a reduction. PW3 met with the accused who is a known individual to him. PW3 admitted to this fact. PW3 alledged that the accused told him the compound amount is RM800. However, PW3 was two days late in paying the compound sum which resulted the summons being filed in court. The accused told him to pay RM1,400 personally to him. For reasons only known to PW3, he handed the accused RM1,400 to settle the summons. This transaction happened in the accused car. There was no witness of the handing over of the money. The charge against the accused is for a specific sum of RM1,400. It is the duty of the court to make a finding that the accused did receive the cash money of RM1,400. At this juncture, this court has only the words of PW3. The Prosecution submitted that the evidence of PW5 and PW12 supported the allegation against the accused and it can be concluded that the accused did receive the RM1,400. This court has perused the evidence of PW5 and PW12 and found nothing that can add value to the assertion of PW3. PW5 and PW12 merely repeating what was told by PW3. This court is reminded that it is crucial for it to make a finding on the specific amount of RM1,400 since it is the crux of the charge against the accused and a finding of different amount would render the charge defective. This court must entertain the possibility of PW3 having an axe to grind against the accused especially after analysing what transpired during the court proceedings. Clearly, PW3 was upset when an arrest warrant was issued against him. This pushes PW3 to make a complain to PKD Office and then to SPRM. The evidence have shown that the accused is friendly with PW3 and he tried to get a favourable treatment from the accused. Instead of treating PW3 favourably, the accused sought the consent to prosecute PW3 and the workers in court. PW12 tendered ID16 which is the report of a domestic inquiry conducted by PKD. It contains the transcribe of the recorded audio conversation between PW3 and the accused. The content is damning for the accused. In the recorded audio, the accused pleaded to PW3 not to pursue the report made against him. The accused told PW3 that he had used the money for the medical treatment of his mother. The accused promise to pay back the RM1,400 to PW3. It is very tempting to use the evidence in the recorded audio because it completed the puzzle of evidence in this case. Everything falls into places so to speak. The domestic inquiry report remains as an ID document and the content is hearsay. The recorded audio was lost by Dr. Hafizan Ariffin and the veracity of the transcription was not proven by he Prosecution. As per the rules of evidence, ID16 is not admissible and cannot be used against the accused. In conclusion, the Prosecution case falls without the content of ID16. This court is duty bound to undertake a maximum evaluation of the evidence in court and found Prosecution’s case fell short of prima facie proof. The accused is acquitted and discharged. BERTARIKH: 19 November 2025 (MEOR SULAIMAN BIN AHMAD TARMIZI) HAKIM MAHKAMAH SESYEN 1, SEREMBAN. Peguam bagi pihak Perayu : Fatin Nur Athirah Binti Zainudin, Timbalan Pendakwaraya Peguam bagi pihak Responden : Rajindar Singh a/l Gurbacahan Singh, Tetuan Morthi, Segaran & Co.