A Nairobi Court Thursday ordered a businessman to pay a fine of Sh1 million in default and serve one year in jail for obtaining credit.
Suresh Devchand Pethad was found guilty of obtaining a credit of Sh5 million from Rohit Shah by falsely pretending that he was in a position to trade in the motorcycle business and pay a good profit.
The offense was committed on diverse dates between 2014 and 2016 at Parklands in Nairobi.
This was contrary to Section 316(a)(b)(c) of the Penal Code.
Pethad had also been charged with issuing a bad cheque where the court heard that on June 8, 2020, at Parklands, he issued a cheque of Sh999,999 in favor of Shah.
Milimani Chief Magistrate Susan Shitubi was told that the convict had issued it to be withdrawn from GTB, Kimathi Street branch knowing that the said branch had been closed.
During the trial, the court heard that Pethad and Shah met through common friends and in 2015, the latter gave the accused a friendly loan of Sh5 million to pay back after six months to one year.
The loan agreement was oral and in exchange for the same, Shah was given cheques for the amount.
The said cheques were however not dated but each was Sh999,999, all totaling about Sh5 million.
Shah testified that he waited for four to five years and then asked Pethad to refund his money as soon as it was possible, on a date that he could not recall.
Instead of paying, Pethad however resulted in giving responses that were not good and using different excuses to evade.
On January 9, 2020, Shah decided to bank one of the cheques only to find that the account had been closed.
On June 8, 2020, when they again tried to bank a cheque, they found that the account was closed.
At this point, Pethad had stopped communicating forcing Shah to report the matter to police.
He reiterated that he had not received any payment for the loan.
On July 19, 2020, Pethad was arrested.
When he was put on the defense, Pethad claimed that he had paid the amount back on a monthly basis for four years.
He could not tell how much he paid back but said he used to pay installments of Sh135,000 to Sh185,000 on each occasion totaling Sh2 million.
This was before Shah moved to India.
He said when Shah was leaving for India, he instructed him to make the repayments to his wife or in her absence his sister.
He maintained that he continued repaying monthly but sometime in 2018 or 2019, Shah suddenly called him from India.
Pethad claimed he failed to pick up some calls, blaming the same on his health.
He claimed that at some point, he even told Shah that his business and health were not doing well and promised to pay once he got the money.
Pethad accepted that he had closed his account and was using a different one.
He however did not inform Shah since he was expecting his cheques back when the latter returned from India.
He told the court that he did not also inform the bank to stop the cheques for the same reason.
Despite his claims that he paid back the money, the court found that there was nothing to show for it.
Shitubi ruled that the fact of closing an account through which he had committed by way of signed cheques to pay Shah, showed his intention to permanently deprive.
“The cheques were used to convince the complainant that he was ready to pay back the money any time.
They had no dates meaning that the complainant could insert any date of his choice and cash,” Shitubi said.
She noted that Pethad’s decision to close the account without informing Shah or his bank to stop payment, and went on to open other accounts as he claims, showed the intention was to defraud.
“I find that the charge is proved on the first count beyond a reasonable doubt.
I find the Accused person guilty as charged and convict him accordingly under Section 215 of the Criminal Procedure Code (CPC),” Magistrate Shitubi ordered.
On the second count of issuing a bad cheque, it was the court’s view that it was not necessary and should have been an alternative count to the first.
This is given that the fraudulent intent was towards facilitating the obtaining in the first count.
“The accused having been convicted on the first count this count will remain in abeyance.”
