The High Court’s (HC) bench I on October 26 acquitted all the five officers and four non-commissioned officers (NCOs) of Royal Bhutan Army (RBA) in the desuung fund embezzlement case.
Major Ugyen Nidup and his assistant peljab Sangay Drakpa were the last two that the court cleared off the embezzlement charges in the DeSuung case judgment hearing attended by the officers’ relatives, spouses and the media.
The judgment from the military court in Lungtenphu was fully reversed.
Major Ugyen Nidup served as the administrative officer for the seventh and 22nd batches of desuung training programme.
The military court found him guilty of embezzling Nu 356,972 from the funds meant for the seventh batch desuung training that was held for five weeks in 2013 and Nu 981,260 from the three-week 22nd batch in December 2013.
He was ordered to refund the embezzled amount and given a six-year prison term each for the two embezzlement charges.
The court ordered his assistant peljab Sangay Drakpa to refund Nu 50,000 and sent him to eight months in prison.
The defendant argued that he had not embezzled but adjusted by inflating the bills to include expenses on restricted items, cash prizes to dancers, and helpers among others.
The High Court scrutinised the bills, statements and other evidence at length even conducting cross-examination of Anti-Corruption Commission’s (ACC) investigation officials, the defendants and the shopkeepers.
The High Court ruled that Nu 295,670 of the Nu 356,972 that he was charged of embezzling from the seventh batch was a legitimate expense.
For the 22nd batch, of the Nu 981,260 that the lower court found him guilty of embezzling, the High Court found that Nu 858,019 from that amount was actually spent for the training programme.
The balance from the charged amount was Nu 61,302 for the seventh batch and Nu 123,241 for the 22nd batch.
The High Court accepted that the money was spent on restricted items and other things that they could not reflect in the bill due to audit objections.
The High Court also compared the expenses on such items during desuung training programme of similar nature in terms of the number of people, and events organised and found that there was not much difference in expenses.
NCO Sangay Drakpa was found guilty of embezzlement based on a shopkeeper, Karna Bdr’s statement to ACC that he had given the money.
However, the statement was withdrawn in the military court. Besides Karna Bdr’s statement to ACC, the High Court found no supporting evidence to prove that Sangay Drakpa took the money.
The High Court cited section 66 of the Evidence Act of Bhutan for accepting the adjustment made: “Evidence of the habit or routine practice of a person or a corporation is relevant to prove that the conduct of that person or corporation on a particular occasion was in conformity with the habit or routine practice.”
The High Court acquitted both the officer and the NCO, as it did not find adequate corroborative evidence. For instance, Major Ugyen Nidup was convicted for the amount the shopkeepers had given to the ACC in their statements. The shopkeepers did not give an exact amount and also said that they could not remember clearly as the payments were made years ago. However, what they had told the ACC was that they had received full payment for the items they supplied for the training programme.
The court ruled that ACC only based their charges on the vendors’ statements but did not take into account the actual circumstances.
The court’s judgment stated that as per section 96.2 on the burden of proof in the criminal case, the finding of guilt against one or more of the parties can only be given when the prosecution to the full satisfaction of the court has established a proof beyond reasonable doubt.
Further, the amount paid as tax to the revenue and customs department, and ration returned to the shopkeepers were also charged as the embezzled amount.
The court also acquitted five shopkeepers who were convicted with the officers for aiding and abetting in the case.
The court’s judgment stated that the shopkeepers did not benefit from the adjustments made by the officer.
The litigants have until November 13 to appeal against the judgment to the larger bench of the High Court.