In a complete overhaul of judgment, the High Court’s bench three on August 2 acquitted a Royal Bhutan Army Major Sigay Tshewang and a non-commissioned officer, Pelpon Nima Gyeltshen, who were convicted by the Army court for embezzling DeSuung training funds in 2013.
The court reviewed eight issues and scrutinised whether the diary Major Sigay Tshewang maintained detailing the accounts could be considered as valid evidence.
The judgment stated that besides examining if the defendants have misused the alleged amounts from the fund, the court also examined the issue surrounding tax deducted at source.
The court ruled that Major Sigay Tshewang, while being questioned by the Anti-Corruption Commission (ACC) stated that he noted the details of payments and adjustments in his diary.
“He also presented the diary as evidence in the trial court and the sequence of events in the diary matched those in other documents the shopkeepers submitted,” the judgment stated. “Moreover, under normal circumstances, it is impossible to create such a diary which is why it is accepted as a valid evidence as per the Evidence Act 2005.”
Last year, the RBA court convicted Major Sigay Tshewang for misusing Nu 949,670 from the funds for the ninth DeSuung training programme at Military Training Centre (MTC) in Wangduephodrang where he served as the administrative officer. The trial court sentenced him to four years in prison and terminated him from service without any retirement benefits.
Major Sigay Tshewang was convicted of four counts of misuse of funds. While he had bought goods worth Nu 1,064,939 from Ms GD general shop in Wangdue, the shopkeeper Thinley Jamtsho’s statement to the Anti-Corruption Commission (ACC) stated that he had received only Nu 777,722 in payment. The RBA court convicted him of misusing the remaining amount of Nu 287,217.
The High Court judgment stated that Thinley Jamtsho had submitted to the lower court that he received Nu 250,000 as an advance payment from the defendant, which the shopkeeper could not recollect when he gave his statement to ACC. The vendor submitted that as the ninth batch training was a long time ago, he could not recollect clearly during the interrogation. Major Sigay Tshewang had submitted to the trial court that he had only adjusted Nu 37,217. The High Court thus ruled that the adjusted amount was Nu 37,217.
Similarly, he had bought meat worth Nu 823,015 from Anil Meat Shop but the vendor’s statement to ACC stated that he had received only Nu 443,354. The trial court convicted Sigay Tshewang of misusing the remaining amount of Nu 379,661.
Major Sigay Tshewang’s statement to the trial court stated that he had paid Nu 450,000 to Jai Narayan Gatani in two advance installments. He also paid Nu 343,354 through cheque. He admitted to adjusting Nu 29,661.
“The shopkeeper’s submission to the trial court and the ACC complemented his statement,” the HC judgment stated.“The prosecutors had not considered the advance payments to the meat vendor Jai Narayan Gatani and had considered only the payment made through the cheque and charged the remaining amount as the adjusted amount,” the High Court judgment stated. “They could not produce adequate evidence to convince the court beyond a reasonable doubt on these charges. Thus, the High Court ruled that Sigay Tshewang had adjusted Nu 29,661.”
While the goods receipts or bills of Ms Chandra Maya shop and JKD restaurant and bar showed the sale of goods worth Nu 789,435 and Nu 131,183, the statements of the shopkeepers to ACC showed that they had received Nu 547,826 and Nu 90,000. Major Sigay Tshewang was penalised for pocketing the remaining amount of Nu 282,792.
Major Sigay Tshewang had admitted in court to adjusting Nu 41,609 from Chandra General Maya shop. He had submitted in the lower court that he had paid Nu 200,000 as advance to the shopkeeper and another Nu 547,826 through two cheques. The statement was also supported by the shopkeeper’s statement to the same court.
The High Court judgment stated that the prosecutors could not produce evidence to convince the court beyond a reasonable doubt on these charges. The High Court ruled that Major Sigay Tshewang had adjusted Nu 41,609.
On the amount adjusted on the bills from JKD restaurant and bar, Major Sigay Tshewang submitted in lower court that he had only adjusted Nu 318. The shopkeeper had told ACC that the bills could be higher than Nu 90,000.
The High Court found that the shopkeeper’s wife submitted with evidence to the lower court that Major Sigay Tshewang had made an advance payment of Nu 57,000 besides the cheque payment of Nu 73,865.
The High Court found Major Sigay Tshewang had adjusted Nu 108,805 from four shops: Nu 37,217 from Ms GD tshongkhang, Nu 29,661 from Anil Meat shop, Nu 41,609 from Ms Chandra Maya General Shop, and Nu 318 from JKD tshongkhang. The High Court found that Major Sigay Tshewang had recorded the details of adjustments in his diary.
Major Sigay Tshewang submitted to the lower court that the shortage of Nu 108,805 was adjusted in prizes paid to dancers and other performers, purchase of prohibited items served during the training, and other expenses such as dinner for the helpers, and archery match among others. “These expenses were made as per the superiors’ orders, precedence, and in good faith and not for personal gains,” Major Sigay Tshewang had submitted.
All bills were verified and signed by the MTC commandant Brigadier Thinley Tobgay, Pelpon Nima Gyeltshen and Major Sigay Tshewang.
The shopkeepers also submitted to the lower court that during the ACC interrogation, they could not recall clearly about the payments as the ninth DeSuung training programme occurred years ago.
The High Court stated that section 287 of the Bhutan Penal Code 2004 states that a person shall be guilty of embezzlement if he misuses or misappropriates government funds or property and makes the illegal expenditure.
The High Court stated in its judgment that the Royal Audit Authority had not raised the issue on the adjustments. “Further, the MTC commandant submitted that such adjustments were necessary,” the judgment stated.
The judgment also stated that the prosecutors could not prove beyond reasonable doubt that Major Sigay Tshewang had adjusted the amounts for his personal gains and interest. “The adjustments which were routinely done are not embezzlement,” High Court ruled.
It also stated that as per section 66 of the Evidence Act of Bhutan, “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.”
Meanwhile, the HC ruled that the prosecutors could not prove beyond reasonable doubt that Pelpon Nima Gyeltshen had taken Nu 45,000 from Anil Meat Shop owner Jai Narayan Gatani. The lower court convicted him to six months in prison without retirement benefits.
The judgment stated that the only evidence submitted before the court was the defendant’s statement to ACC and a deposit slip on Nu 30,000.
During the trial at HC, Pelpon Nima Gyeltshen had contended that his statement to ACC was made under duress since his son was admitted in the hospital when the commission questioned him. He claimed that ACC officials said he couldn’t go and visit his sick son if he didn’t agree to the embezzlement.
The judgment also stated that although the defendant retracted his statement to the ACC in the lower court and submitted that the Nu 30,000 in his account was the amount his wife earned through the sale of her hand-woven clothes, the lower court did not summon the wife and confirm it.
The judgment stated that the shopkeeper did not provide any statement about Nima Gyeltshen’s adjustment or embezzlement to ACC. “The deposit slip also did not have his name or signature on it.”