19701113 TZHC Mwanza2

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Es said that he did not' camt the money at ti t inc it was handed over to bin by the cashier beàauso he trusted the cashier who had ben doing that work for a lor tiae In support of the cashier, a noon6er'(P.:.6) claimed that he saw the appellant recaivà a total. of .33,000/- in his presence and that he sinod as a winess. IIC claimod that he too bounted the money and found that it was in fact s.339000/-. Prancis (P.V1.3) id Lawrence P.i.4) testified that they saw the appcllan receive b.33,000/- from the cashier In addition the appellant said that \ien he fOUnd this iotae, he wt back and told the cashier t1mt he had given him less lOO/-, and that he asked the cashier to refund the money. However, he said he did not report this incident to Ghe Executive Officer as he did not like to see the cashier lose his job The learned narhistr.:te considered this and caneto the conclusion that the appellant had received .33,000/- and not 3299 00/-. lIe disbelieved the appellant i s contention that he received the money from the appellant without countin., it and held that the appellant had not rported the shortage to anybody, if the money he had been iSiven was lose by On the face of it, the finding of the learned nagist±'ate was and appears to be well supported by the evidence led. Dut the leamed counsel, the argued the appeal on bo}lf of the appellant, submitted that the finding Was not proved beyond reasonable doubt, and that had the leaxai-. magistrate perused the entries kept by the cashier in'his cash 1)00k (Exhibj-t.J) he would not have come to that coxclusion The CaSh book (Exhibit-J) showed that on 3rd September 1966, there was cash, with the cashier, h.iOo/- which was acimowledged ..s hoving not been banked. The learned counsel's argument was that, if all the cash the cashier had handed over for banking, as he claimed, there should have been no entry of .ioo/- in the cash book as cash, and that this amount could only be the amount supposed to have been handed Over to the appellant at the tine vzhen the tppellant was going to the bank; As it can be seen, this er]tr:,T of .lOO/- bupported the contention of the appellant that he was ±ven less b.1001-, and that he had reported the shortage to the cashier. If theie was ffo shortage, the cashier would not have entered this in his cash book at the erie of September 1966, that .ioo/- was "casa remlGted lae" but not shown in the bank statement. In ity view, this implies that the cashier must hOve 'iven .33,OOO/- less ;ioo/- to the appellant on 3rd September 1966 If the appellant had not reported the shortage to -b1e cashier, the cashier would not only have found that the hank statement did not show the correct figure, but his cash book would not have bdanced This entry still continued to appear at the end of October and November and December 1966 in similar -terns, but it mysteriously disappeared at the end of January 1967 It cannot be said, therefore, that the explanation given by the appellant was not a possible one, and the bcnefit of doubt should have been given to h.ira' On the second count, the sane cashier said that he haftded over t in cash, 23.31,573/901 but the appellant banked cash 3.71,623/- Living a shortage of cash t.99945/90. Again he said he gave this money in the presence of witnesses who si€ned as witnesses and uho saw the appellant count the money received, but the appellant again said he reCeived the money without counting and he found the shortage at the bank Nc said when he went back he irillorued the cashier that he gave him less .99945/9C and that the cashier showed him his cash box wherein ha savi silver coins and a label showing over 9000 shillings were in it. The learned counsel advanced a like argument Pn this court, and I need not repeat it again. At the end of January 1967, the' cash book (Exhibit ) showed that there was I.l1,160/35noted as "cash - lately ronittcd* but not shown in the bank statement" This shows that there was cash with the cashier to tJit extent at the time of reconciling his accounts with the bank stat eueit. Iluch larger sums are shown, in similar terms, at the end oi each succaeat month. In the absence of any explanation regarding the dlc(cd presence of such large suns at the end of each month, the compelling iiiEcrence is a . . .3 that cash reLlained in possession of the cshicr, as shown by the recors, and that those aLlounts could also include the allUded 19,945/99.. This possibility has not been ruled out entirely Hence, in this cout aewoll, thc case against the appellant was not proved beyond reasonable doubt I find, therefore, as I have attempted to show, the findings of the isarned nmitate are not fully backed by the edence present, and it is not, therefore, safe to suppoxt the appellant s convictions on both coui: The convictions are aumshed, sentences and order set aside and ordered that the appellant be released forthwith wless ho is held on some other lawful puxpose Doliveredin Court at liwanza on 13th 1ovauber, 1970 (z. N. El-Kindy) ACTING JUDGI. 1. ~ I