19771005 TZHC Mwanza

Y. jt IN THE HIGH COURT OF TTZANIA

AT IIUANZA

APFELLITE JURISDICTION HIGH COURT CRIMINAL APPEAL NO.70 OF 1977 ORIGINAL CRIMINAL CASE NO.826 OF 1975 OP THEDISTRICT COURT OF J3UKOBA DL5TRICT AT

BUKOBA I ANWA IARY IiAISHOZI . . • ,.• , . • APPELLANT versus THE REWTSBLIC •,........,......., RESPONDENT lstcount Forgery c/s.333 & 337 of the Penal Code. (two counts) 2ndcount Stealing by a person emp1oyed in the Public Service c/ss.270 and 265 of the Penal Code:.(four counts) I 3rdcouit: Fraudulent. false Accounting c/s.317(c) of the Penal Code.

JTJD GEHENT The appellant, Anna Mry Iraishozi, was charged with and convicted on two counts of forgery, one of fraudulent false accounting arid four of stealing by public. Servant. She was a cashie±' at Kagemu.Medical Training Centre in Bukoba. Her duties included payment of allowances to students and for this purpose sha used to prepare vouchers. It is some of these vouchers she was said. to have forged and stolen money in the process. In all, she was. said to have stolen a total of 2,910/ .. Following conviction, she was sentenced to terms of imprisorent ' aggregating to three years. he then appealed. In this judgernent I will refer to the vouchers according to the descri- ption used by the trial magistrate in order to avoid unnecessary confusion. . . The first count was one of forgery.. The appellant prepared voucher No.49 (exh.4) for 1,700/=. It was then 6igned by Principal of the centre, Dr.F.Z, Njau (Pw2), and sent to the RDD's office for issuance of heque. The cheque (exh.12) for .8,893/55 was duly issued and cashed. This cheque combined other vouchers, hence the hig/.?,er amount. When it came to' . . . . . . . /2 - Iwo - - •4 4 payment, however, it turned out that there were less students to be paid than exhibit wasintended for. The apeellant paid out 1,5501= and there TjIas a balance of 1501=. She there- fore altered the triplicate of exh.4 in her custody to

read 1,550/=. I reject, as did the trial magistrate, the appellantts reported alloga tion that the alterations were effected before the voucher went to the PLDD. If it were so this should have been reflected on the quadruplicate that was produced from the office of the FJDD However, in forgery there must be an intent to defraud and this must ho alleged in the charge. It was not so allsed in--respect of thiscount. In other words, the count failed to disclose any offence for which the appellant could be convicted. Making alterations in written material is itself not criminally offensive. It could ho by negligence, mistake or nure accident. It is therefore necessary to allege and prove an intent to defraud. As there was no such allogation here, there was no offence charged. I will accordingly quash the conviction and sot aside the sentence imposed. In the second count J4t was alleged that the appellant stole shs 1501= which remained unpaid on oxh.4. The appellant testified generally that she usodto remit any unpaid balance to Dr. Njau. She -caid that even payment itelf wo.s always done in Dr..Njau's presence. Dr. i'Tjau denied receiving any balances from her . The trial magistrate accepted the denial and said this in the course do not agree with the accused that she handed the balance of money to Dr. Njau (Pw2) after payments to the staff. If ever the accused Jiahdod the balance

to 2, then she would as well handed the P/vs to Thi2 Dr. hjau. Put this- was not the case • There was in fact rio evidence that vITLe vouchers were found in the appellantts own custody. The auditor, Joseph Macha (Pwi), did net say whore ho found them. That apart, and rather sadly, it seems that the learned trial magistrate did not revert to the evidence of Dr. Njau when cross-examined, by 'the appellant The doctor himself -had this to says- - The accused handed to me these paym:nt voucie r exhibits and rhon r iu- em. I d not get Ir J. any money frem the accused. " It is therefore settled that the appellant used to deliver - the vouchers to Dr. Njau after payment. As the alterations - were also made after payment it follows that Dr. Njau used I. - to receive them already altered whenever this occurred. I now find it difficult to believe that Dr. Njau could receive vouchers silowing less paymont without demanding for the balance of money. I have to say so because the alterations are not ones that could escape anybodyts attention. They were not fa1sificntioi of figures or erasurers of such figures.: The on ginal figures were neatly cancelled, leaving them conspicuous, and. the. cancella'ti,ons wère even- initialled by the appellant. The appellant made simila amendments in - the accompanying lists of students:, also in neat straight lines, using rod ink, and the amendments were

similarly initialled by her thus I leaving no doubt as to how she arnivod at different figures in the vouhe", Surely, Dr. Mjau could not have failed to notice all this. But Dr.' Njau said he did ilot' receive any unpaid. money. • In the--t case there was the wordy cf the appellant against that r of Dr. Njau and in such ciraunctances it is not always easy to tell where the truth li,os. -However, as the cIoc -toradmitted receiving and koema re vo'cJlLrs thc Cv Pe±ice PC flt more to the remittance of the money to the doctor than to its non-remittance. ' I 1'- There was, tIorefore, a rcaso:aabic doubt raised which ohcrld have gone to the appellonts favour. ior thet reason I will similarly allow the apeal on the seconu Qount and set as:.de' the conv:.ctii'i. and sortonce thereon. Fraudulent false accou.ntia' was the eubj.ct of the third count, it : aiL:od 'et the appdllont omitted to enter into the Cash ,i3ook (exh.17) xajmont voucher No.3 (exh.l) of 19.7.73 for 1,920/=. What Cash. Book I-h is a nirhtmare. It was kopu .n the moot hapxaoare sianner one could posebly imagine. It contains 19 shoots ('i.Ti.th cont inuat ions in some cases) that arc arrsn;od in the most c1iscoura<ing fashion and style. What is more, the on -h±ies therein have no pretence • to any chronoloi:ical soquenco. The c::poiditures of 197.73, like, thany others are scattered anyhow threuhout the Cash • Book. For

enami1o, one of such expenditures appears on sheet No..1B, another cn shoot No.8,another on sheet No.15 and yet another on shoot No.19. In between those are othor oxponditures of 1973 and oven 1972 and 1974. It..cannot therefore be said' with certainty that the ecpenditure on h.l was not entered somewhere in this confusod Cash Book. Alternatively, it might have been entered i.n some other Cash Book for cxh.17 is used up and some oilier Book aust have been in current use. I have noted, too, that the Cish Book, exh.17, was not handled by one person. 1t conthi.ns a variety of handwritings. It cannot then be, said that the voucher in question had necessarily to be entered by tho appellant. The third count was thus not proved and the conviction and sentence thereon are likwiso set aside. In thO fourth count the appellant was alleged to have stolen 600/=. It W. said the -h she paid 1,3201= only on exh.1 (cound three) and pocoted the balance. I do not know how this was arrived at. Thure was in this case no a1leation of. forgery. The tripllcate vononor kept at tao Centre was noi tendered to show that less money was paid than stated the'oon. There was tendered only a list of payc-os shohiLñg that they received a total of l,320,'=. But it was not in evidence ±hatthe list was exhaustive. It is dobtful, therefore, whether Y there.,was any money left uppaicI in this instarce. i-nd if

there was, it is 'eaually doubtful whether ii was not remitted to the Princixs1. The evidence was thus scanty and the theft was more imaginary than real. I acquit the appellent on this count too and set aside the sentence imposed on her. The fifth count was another alleged theft. This time it was said that on voucher 1\To.4 (exh.2) of 24.7.73 for 2,3401= the appellant paid. out 1,9801= and stole the balance of 360/=. Once agaJ.n, no forory was alleged hero. And the triplicate copy kept at the centre was not produced to show that a lessor amount had been paid out. Bu -b what is worse is that no list of payoes was produced e ither. Instead, there is a copy of a letter from the Principla, Dr. Njau, to the Principal Secretary, Ministry of Health, reporting on the performance of some 33 students in some crash course examination. This letter had no relevance to payment of allowances but to the crash course examination. It therefore remains unknown as to the number of students paid. In this case, too, I will be pardoned for saying that the theft was more imaginary than real. The conviction is therefore quashed end the sentence is set aside. I will consider together the sixth and seventh counts. It was alleged in the sixth count that the appellant forged voucher No.33 (exh.3) of 25/8/73 for 4,500/= to read 2,700/=. In the seventh count it was seid th".t she stole the difference of 1 9

800/=. Again, the alleged for8cry is in the form of neat concella'tions duly initialled by the appellant. It is only a fool who would sot cu -h to defraud any person and leave evide-nce incrir'inniiiv to himself. The fact that the appellant initialled the alteraiioi.e ad. srs';cr'tod them wi..th /4 -4- in the studqnt hots, leaves no doubt that she had ilo intent to dfroid or ceivc onvone imi1orl it s difI'icul to believe that she did not ramli the balance to Dr. Njau in view of the self evident alterations. The position here is similar to that in the second count, similar daut was thus raised and for these reasons 1. will quash the convictions and soetencee on those counts. In the course of iiovestjgations the aupQllont offered to refund in protest, the meooy allegedly not accounted for. T6 that end she wrote a latter (exh.6)stntiug I have admitcd. to the Auditor i/c :ooa Office Branch the responsibility for nnkin: good the eun of shs.2,910/=(etc)." Indeed, she rondo an initial pnyment of shs.l,400/= (oxh.16) but dosisted. from making further pannnts when She sensed that the money was bei:ag, recdived with.other moti.ps. Poithur the letter nor the fact of payment amounted to aftiissioie of the off encc-o. The contentof]ae letter is clear on this issue.. The appellant merely accepted responsi.hihioty for making good the alleged loss but not responsibility for the loss as such. I

accept hor evfdonco that sue pajd the roney in protest. What tile: ovjdenco revealed in this case is what to expect when unqualified people are made to perform duties that are w tbout their coroveheasi on The n 1 nt all eged tbt from a more clerk s]le was idessed to perform accounting duties. That she was unqualified to shoulder these . duties is evident from her, practice of altering voucbors already ]cmssc d and maintaining the Cash Book in a mariner that made it fit for the dustbin.Somcthin must ho done to arrest this indifference in 0-overumont account in if only to dor.ionstrate concern for public funds. With t-hat said, however, .1 mm satisfied that the appellant was far from roved as being responsible fo. any loss or theft. The appootl iso thoroforo allowod in its entirety and she should be released from custody imless further lawfully held. She ebeuld iso be refunded her 1,400/=. MWAN ZA K.S.K. LuGAIWC- IRA OQ3LR1371. JtJDG-E