Overturning the lower court’s ruling, the HC stated that prosecuting agencies should charge all criminal cases

Judiciary: The High Court recently overturned the lower court’s rulings on two cases pertaining to the 12 flat buyers and have set aside 66 years of imprisonment unless the defendant, real estate developer Dechen Tshering is charged through a criminal process.

The charges of fraudulent insolvency and evasion of taxes after selling flats, according to the High Court rulings would not be imposed and the defendant shall not be held criminally liable because the case is civil in nature and that there has been no charge sheet from relevant prosecuting agencies.

The proprietor of Sambhav Estate Builders, Dechen Tshering, appealed to the High Court after the Thimphu district court’s bench V in March, convicted and sentenced him to 132 years and nine months in prison for committing various offences, including tax evasion, fraudulent insolvency, forgery and breach of contract.

However, since it was a civil case, the court allowed him to pay a fine of Nu 5.973M (million) in lieu of the sentence.

Dechen Tshering requested the appellate court to dismiss his conviction, saying all charges framed against him were baseless and irrelevant.

Of the 132-year nine-month prison term, 66 years and nine months pertained to the non-payment of the monthly loan installment to the Bhutan National Bank Limited  (BNBL) and the issue with the nine buyers, who bought flats from the appellant.

On the fraudulent insolvency of having sold mortgaged apartments without the consent of the bank, the High Court ruled that the charge was not imposed since the apartments were transacted as per the normal real estate businesses with the buyers having given the option to transfer the bank loan on their names, and the bank too having provided for no objection certificates.

On the alleged evasion of tax amounting to Nu 2.025M, for which the lower court sentenced him to 45 years, Dechen Tshering said he was not charged by the Office of the Attorney General or the revenue and customs office for evading tax, which is an offence under the penal provision.

Dechen Tshering was also found not liable for breach of contract and for damages of Nu 45,000 that the lower court awarded to each of his apartment buyers. The verdict also stated that the apartment buyers have not claimed for any damages except the ownership transfer that remained pending.

Dechen Tshering had submitted to both the lower and appellate courts that he had no intention of dishonoring the agreement signed between him and his buyers but that he was only constrained by certain situations, which were beyond his control.

He submitted that certain deviation of the building from the blue print delayed him in obtaining occupancy certificate necessary for transaction while a freeze notice from Anti Corruption Commission to one of his buyers and also the 2012 National Cadastral Resurvey that kept pending all building and land transactions until recently had contributed to the delay.

Setting aside all criminal charges, the court ordered him to transfer the ownership tittle of the sold apartments as per the agreements and compensate the buyers within two weeks.

Legal counsel Younten Dorji said that in one of the appeal cases that ended in an amicable settlement, Dechen Tshering and his apartment buyers have negotiated to compensate each other on extra works done on the apartments, and for the few months delay in handing over the apartments.

Criminal and civil cases

Can the judiciary accept both civil and criminal cases filed directly by the affected parties?

This is an emerging question among people who in seeking justice still feel that they can file a case whether civil or criminal directly at the court of their jurisdiction.

Such problem crops up, according to observers, due to lack of awareness and when they aren’t able to distinguish a civil and criminal case.

According to judiciary officials, the courts do not entertain or accept a case in criminal nature directly file by a litigant. All cases that are criminal in nature have to come through police or the Office of the Attorney General if it is a corruption case investigated by the Anti Corruption Commission.

Based on this, the High Court recently overturned the lower court’s verdict on the real estate developer because the relevant prosecuting agencies had not filed the charges.

As per the civil and criminal procedure code of Bhutan 2001, it is the duty of police personnel to promptly detect and apprehend all persons for whose apprehension, sufficient ground exists and to bring offenders to justice.

It also states that a person may make a criminal complaint to the police or in the absence of police, to any appropriate public authority, when he or she or a member of his or her family has been the victim of a crime, has witnessed a crime or has prior knowledge of a crime which may occur or the intention to commit a crime.

If a complaint is lodged with a public authority other than the police, such public authority, upon receipt of the criminal complaint, shall submit it to the police expediently and without delay.

Criminal cases like murder, rape, theft, gambling, domestic violence has to be routed through police.

However, civil cases like monetary, matrimonial dispute, adultery, land, and inheritance, could be instituted directly by a litigant himself or herself or member of his or her joint family or a legal counsel of his or her choice with the court.

In a recent order issued by the Supreme Court, it stated that civil matters may be joined with criminal during adjudication and decided. However, criminal charges cannot be framed by the judges and sentence imposed during the adjudication of a civil matter.

Younten Dorji said that the High Court’s ruling has set aside the suo moto conviction by the lower, which greatly strengthens the rule of law and draws a fine distinction between civil and criminal cases.

The High Court’s ruling stated that any criminal liability such as evasion of tax, corrupt act or any other criminal offences if at all committed should follow the due process of criminal procedure.

Meanwhile, the High Court is yet to pass its verdict for the remaining 66 years and nine months imprisonment passed to the appellant in the BNBL case.

The BNBL filed a case against Dechen Tshering for foreclosure of the nine loan accounts, and seizure of the mortgaged properties on grounds of non-payment of monthly loan installment amounting to Nu 175.666M on September 13, 2011.  Six of the loan accounts were housing loan accounts.

Dechen Tshering, however, said that, after holding several negotiations with BNBL, the total default amount has reached to Nu 24.669M, including overdue of scheduled loans, bullet loan’s interest and overdue from other loan accounts, as of December 31, 2013.

Rinzin Wangchuk