19710219 TZHC Mwanza2

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ISUOO USADS :5tDWJHD (10noDso1d t 2 t1 O)iLlciOd&I ° S * *OIlfldlI 5tHIJ S ' (opoonoo7 12u?O)Mj ITCCI7 2.lJi15LI o/s NOwfl S D2SiSO1 T10pI0D1 St OO - W t 02 5T )J [ 0tOj0EF ST 0 ) sqto jo Ta-nO0 TOTEISTC 0t. jo 6961 JO Lg• oso T 1 UT3 ISuPTlo oL6i iO lO?O'I nIV;ldcPJ rIVNINIZ15 'UOtOTpStXttf 01.STIDdd7 - 1ZN7! ,11 JT 7INZN71 A0 JJ?iflOO HOlE jHl NI I -- - ---- -- - - .-r•.N*.- -2— it and did not show in the account books to have received it on behalf of the company0 Ha was, therefore, charged witstealing these two sums of money and with fraudulently omitting to show those SUMS in the account hocks of his employer0 In his dafende on oath the appellant admitted to have made advance payments to the junior staff durin the months of 0ctobcr 1968 and January 1969. He contended, however, that at the end of October 1963 he did not recover the advances because the junior stff said they were in financial difficulties and therefore they requostod hith not to deduct their salaries. He further contended that he did not recover the advance payments in the mont4 of January 199 because at the end of that month ho was already transferred to another Ginnory called Nyamililo. In cross—examination, however, he admitted that at the arid of nary 1969 ho wa.2tjll at KasawaGinnory and had not yet transferred to Nyamililo Glnnery. The learned trialmagistrata after reviewing the evidence of bothsidas accepted the prosecution story and accordin1y convicted the appellant as charged. It would seem that there was sufficient evidence to sustain a conviction br stealin shs.1345/—, being thc amount of money advanced to and recovered from the junior staff durin Octcbor 1968. The appellant prepared a pay roll (Exhibit L) dated 15/10/68 in which he showed that he paid the sum of sis.1345/— to 22 employees. Four of those employees eavc evidence and said that the advances paid to them amountinh to shs.305/— were duly recovered by the appellant at the end of Uctobar 1968. It is unfortunate that tho remaininf; 18 employees were not celled, but it appears that there tac other evidence to fill in this :ap P.1,V.2 said that he took over from the appellant the duties of cashier whn the appellant was traneforred from Kasamwa Ginnory to hyamililo .Ginnory in Marett 1969. In April 1969, he paid salaries to tho junior staff which salaries took into account the advance payments made to thorn in October 1963. The junior staff then complained that their salaries had been deducted twice, the first deduction having been made by th appellant. hhareupon P.W.2 went to see the eepa1lant at Nyamililo Ginnery and informed him of the complaint aeainst him by members of the junior staff. The appellant admitted to him in the presence of another employee P,.3 that he duly recovered frcm the junior staff the advance payments for the month of October. Ha further asked these two to accompany him to his office at hyamililo Ginncry where ho duly produced and handed to them the sum of shso1345/—. The cppallant's admiezion and payment of t1e money to F.h.2 would su:gest that ha did make the necessary deductions of salaries from the junior staff. If he had not made these deductions I see no reason why he should hake the admission to P..2 and indeed there would be no point whatsoever in his givin' out —3- Aft, shs. 1 345/— to be paid to the junior staff. Eccondly, in the course of the investigation the appellant in a cautioned statement to the Police (Exh D) admitted that he deducted s1l..2.1345/— from the salaries of the jomior staff, being advance payments nado to the staff for the month of October 1968. Once again if ho had made no deductions of salaries I sea no reason why he should make this admission, and having regard to the evidence as a whole on this count I think that the conviction was justified. The conviction on the, related count of fraudulent false accounting is also sustained becauso there was evidence that the sum of shs. 1 345/- was not shom in the company's books of account to have boon received on behalf of tho company, and the intcn to defraud can be sufficiently inferred from the fact that the appellant mioaprcpriatcd this sum I now turn to consider the conviction on the count of stealing a10.1787/— being the amount alleged to have been recovered by the appellant as advance payments to junio: staff for the month of January 1969, s indicated earlier the aupollant in his defence admitted to havc made advance payments to mombors of junior staff during the month of January 1969. This admiesion is further suportcd by an entry in the oxpenditu a book (Exh H 2)meintainod by the appellant showing that during tao month of January he did make payment of sns.1787/— by way of salary advances to junior staff. Pour employees of the Kaeamwa Ginnory gave evidence saying that during the month of January 1969 they received from the appellant advance salary and that at the and of that month the advances were duly recovered from their salaries by, the ai:pollant. These witnesses ucre P.WW.3, 4, 5 and 6 who i refunded sas.lOO/—, shs.60/—, shs.50/— and shs.lOO/— respectively being the amounts they received by way of salary advancos for that month. These amounts added togother come to shs.310/—. No other employees wore called to show that they did refund money to the appellant and on looking through the record I find no evidence to fill in this gap. it therefore, follows that there was not sufficient evidence to prove theft of the whole of shs.l787/— as charged. The evidence of P.de,3, 4, 5 and 6, however, shows that the appellant did recover shs.310/—. The trial court believed •tfrsc witnesses and I am unable to say that he was wrong in doing so. In the circumstencs, I would uphold the appellant's conviction for stealing shs.31 0/- and not shs.1787/— as stated in the charge. For the reasons given elsewhere in this judmont the conviction on the related count of fraudulent false accounting is also upheld eut only to the extent that the apoollant omitted to make entry of frs.31 0 /— in his employer's receipt book. In sentencing the appellant to a total of 3 years imprisonment - • -4- with 24 strokes the icarned maistrate ueported to apply the provisions of the Minimuni Sentancas 4ct. There was no evidence adduced, however, to show that Nyanza Industrial Cothpány is one of those institutions which come under the rotcction of the Minimum. Sentences Lct. The provisions of that Ict therefore, were inappli- cable to the facts of this case. Since the of±cncedid not fall under the kinirnum Sentences Lct the order for corporal punishment is, thorefoi'c, sat aside. Furthermore, since the offenco3oro of a similar nature and were fairly closely connected in point of time., I think that it would be more appropriate to order the sentence to rim concurrently. Accordingly the ordor of sentence imposed by the trial court is varied to the extent that the sentences on all coimts shall run concurrently so that the appellant is to serve a substantive term of two years only. 3avo to the limited extent as indicated above the appeal is dismissed. Delivered in Court this 19th day of Iebruary, 19 1. ( k, KISLNGL.) icting Judo. '1 ..