Tshering Gyeltshen, the former manager of a fuel depot in Trongsa appealed to the Supreme Court on December 7 after he lost the case against his employer.
He was convicted to have embezzled Nu 16.76 million by selling fuel to a construction company working at the Mangdechu Hydropower project site.
The High Court on December 5 upheld the Trongsa Dzongkhag Court’s judgment and gave Tshering Gyeltshen a concurrent prison term of three years and nine months. He was also ordered to restitute the embezzled amount to his employer.
Trongsa court issued the judgment in December 2021 and the High Court rendered its judgment on December 5, 2022.
He appealed to the Supreme Court and requested reinvestigation into the case since the case had started as a civil case and was given a judgment like a criminal case by both the Trongsa and High Courts. “The way they decided the case defeated the principles of international law and criminal procedure,” he said.
According to the petition, the case should have been studied properly from the beginning and followed the relevant procedure after the case type is established. “If the case is criminal it must be routed through the police, the Anti-Corruption Commission, and the Office of the Attorney General.”
However, the court directly heard the case and the client was not given the chance of interrogation, cross-checking, and investigation according to the appeal letter. “Besides depriving the client of criminal procedure, police arrested him without an arrest warrant. Officials from his company seized his documents without seizure order and search warrant.”
Tshering Gyeltshen said that he was deprived of all the investigation that the criminal case should get and it violated sections 15 and 17 of Article 7 of the Constitution of Bhutan.
Section 15 states that all persons are equal before the law and are entitled to equal and effective protection of the law and shall not be discriminated against on the grounds of race, sex, language, religion, politics or other status.
Section 16 states a person charged with a penal offence has the right to be presumed innocent until proven guilty in accordance with the law.
Tshering Gyeltshen said the investigating team from the company confiscated all the documents that he had maintained at his office and he could not prove to the court that he has not embezzled. He said he requested both courts to order the company to return his documents but the courts did not consider it. “I was penalised by leaving all my evidence and documents with my employer which is unfair.”
He said the then Trongsa Drangpon did not accept his case when he went to register on July 14, 2014. He said the Drangpon remarked on his petition saying that there is no need that he files the case since his employer will be registering the case. “On the same day, the Drangpon had remarked on the court’s case register that my employer had already registered the case while it wasn’t actually registered.”
The High Court’s judgment stated that as per section 161 of the Civil and Criminal Procedure Code of Bhutan, any criminal case should be investigated by the police and Anti-Corruption Commission but the court did not receive any investigation report in this particular case. “But the previous court has conducted a joinder hearing.”
Tshering Gyeltshen was also convicted of producing fictitious credit bills and other documents.
The judgment stated that, although Tshering Gyeltshen is liable for a second-degree felony, he was given a concurrent prison term of three years and nine months. The consideration was made based on the mitigating circumstances, procedural lapses during the case investigation, and systemic flaws by the employer in maintaining up-to-date accounts on fuel transactions, according to the judgment.