official charged with stealing $121,000 from the Bank of Bermuda.

Puisne Judge the Hon. Mr. Justice Ward ruled that Calvin Shabazz could not be charged with the theft under the criminal code.

He said under the code, in a debtor-creditor relationship, a written direction from the bank specifying how the money must be used must be broken before charges can be laid.

"As there is no document, the count of stealing is not properly included in the indictment,'' he said. "Without such a document the underlying basis for the charge falls away. There can be no charge for stealing without the proper document.

"There is only one count (listed on the indictment) and no application has been made to amend the count,'' he said. "As a result, the indictment is quashed.'' Shabazz, formerly the bank's assistant manager of retail banking operations, stood to face trial by jury on charges that he stole the funds between July 25 and September 14, 1988 while still a bank employee.

Yesterday, Mr. Justice Ward said that Shabazz received a $310,000 bank loan on July 26, 1988 with which he was to pay off his first mortgage to be redeemed from L.P. Gutteridge Ltd.

Instead of sending the cheque directly to the real estate, travel and insurance company, Mr. Justice Ward said, the bank deposited the money into Shabazz's current account.

Of the $141,000 required to pay off the mortgage, Shabazz paid only $20,000, using the remainder to pay off his credit cards and his loan principal.

As a result, he was charged with stealing $121,000.

At Wednesday's hearing, Crown Counsel Ms Sharon Kenny said the money was the bank's property and had been loaned to Shabazz with the understanding it was to be used to pay off his mortgage.

"$141,000 was owing on the mortgage,'' she said. "After he pays out various amounts, he's left with a little under $105,000 in the account which in no way would be able to cover what was owed on the mortgage. It is the Crown's belief that he in no way intended to pay it off.

"We're dealing with a bank officer who was privy to bank operations. He knows what those funds were to be used for and he signed the form at the bottom. He tells the bank why he wants the money and signs the loan to that effect.

"There was an implied direction in writing (on the loan form). Given the circumstances, your client knew exactly what the funds were to be used for.'' Mr. Ian Kawaley, defending Shabazz, said that all monies were now repaid. And he argued that "a loan application does not constitute a direction of writing under the criminal code''.

"Criminal law only applies if there has been a direction in writing,'' he said. "There needs to be very clear words to constitute a direction and it has to come from the (bank). He said the form was signed "prior to the release of the funds into Mr. Shabazz's account'' and that its purpose and wording was "ambiguous''.