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.
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.
Read more https://www.nairalaw.com/why-case-against-two-britons-was-discontinued/