19790615 TZHC Dar es Salaam1

IN THE HIGH COURT OP TANZANIA At Dar es Salaam APPELLATE JURISDICTION HIGH COURT CRIMINAL APAL No.22 OP 1979 (Original Criinal Case No.1701 of 1977 of the District Court of Dar es Salaarn District at Kisutu) Before L.J.R. Chua-Chief Resident Magistrate HAROID MTONDOO •,... •. to... ,o,o....o,c ,.•,•o•. APPELLANT (Original Accused) versus 'TIlE R.EPtJBLIC . . . . . . . , . . . . . . , , . , . . . , . , . . . * . . . , . RSPO11)ENT (Original Prosecutor) J U D G EM E N T KICHA, J. This is an appeal against conviction and sentence. The appellant in this case was convicted on two counts of stealing by servant c/s 265 and 271 of the Penal Code and senten ced to 5+ years' imprisonment on each count; sentences to run concurrently. The judgement of the, lower court is reproduced below for easy reference Harold Mtondoo and lassim tcie are charged as fo11ows In the ffrct count the two accused are jointly charged with.stealing by aervant c/s 265 and 271 of the Penal Code. In the second count the first accused is charged alone with stealing by servant c/s 265 and 271 of the Penal Code. The amounts of money involved in the first count is Shs.13009/20 while in the second count it is Shs.13691/20 the property of National Steel Corpo- ration. The facts of this case are simple. The first accused was employed as a credit Controller by the National Steel Corporation while the second accused was a cashier. One of the duties of the first accused was to follow up deb- tors who owed the Corporation money. There was no dispute that S.M. Merchant Ltd. had issued two cheques to the National Steel Corporation i.e. cheques No.M 106502 (Ex.A) for Shs.13009/20 and cheque No.A1 1O65 (Exh.B) for Shs.13691/20 and that both were dishonoured. It was also dot disputed that the first accused on 2/5/77 went to the offices of S.N. Merchant on a motor cycle and demanded payment in respect of dishonoured cheque A.106517 (Exh.B). He was handed over by Gamul Ilji (PW.4) Sh.l3691/2C and he issued receipt No.1336 (Exh.E). The accused adr1iis writing the receipt and signing it. . .. . . . .../2 V 2/......... On 4/6/77 G. Isr&i1 laiji states that he went to the offices of the National Steel Corporation and paid shs.13,009/20 in respect of dishonoured cheque A.106502 (Exh.) and was issued a receipt N0.1336 (Exh.C) by the first accused. G. Ismail Ia1ji stated in his evidence that at the office he had handed over the money to the second accused who walked to the office' of the first accused with the money and came back with the receipt for the money and handed it over to him. It was also part of the prosecution case which has not been denied that the two receipts issued were not from the book of receipts in current use and that in fact the book used could not be traced. It was also in evidence that the receipts issued by the accused No.1 did not bear Revenue stamps as they ought to. Furthermore there is evidence that the money recei- ved by the first accused has not been banked: to date and cannot be accounted for in any way by the first accused except for his defence which I now propose to deal with. • The defence of the first acáused is that he handed over the money to 'Joeni Rashidi Nduina without anything in writing. Joeni Mduma (PW.6) has denied receiving the money on two grounds. Firstly he states. that if the accused had handed him the.money there would have been something in writing on the receipt book. He also states that the receipt book would have been the current receipt book and not receipts which were not in official use. This court has to decided whether the defence of the first accused could reasonably be true. I am unable to find the defence credible for the following reasons: When the first accused drove to the offices of S.N. Mer- 'chant on a motor cycle and collected cash Shs.13,691/20 he was acting irregularly as all cash payments were supposed to be paid to the cashier in the office. The receipt he issued was not in regular use. On the second occasion Mr. Nduma had left the work of cashier to the second accused who must have had the current receipt books in his custody. When the first accused collected the cash and issued a receipt he was usurping the duty of the. second accused and he ought to have handed over the cash to him and not to Mduma who was absent. There is further evideie showing that a let- ter was wrItten to the first accused asking him to ex- plain the irregularities. He has not replied the letter which has been tendered as Exh.E.. For the above reasons I find the defence of the first accused cannot be true. I also find that he must be taken to have stolen the money and find him guilty 'on both counts as I am satis- fied beyond reasonable dou'bt that he is the one who collected the money and failed to remit it. Regarding the second accused his defence was simply that he did not receive the money from the fIrst accused. I find his story could reasonably be true and acquit him of the charge preferred against him. Delivered in open court this 3rd day of November, 1978. Signed: L.J.R. CHUA Chief Resident Magistrate, Previaus convictions: Nil Mitigation: I have relatives who depend on me. I still deny Th'Th '.•. . .13 1 3/.. SENTENOE: Taking into account the gravity of the offence especially the amounts involved I sentence the accused to 5+ years' imprisonment On each count sentence to run concurrently. ORDER: Accused to refund the amounts involved in both counts. ORDER: Right of Appeal explained. Signed: L.J.R. CHI.JA CHIEF RESIDENT MAGISTRJT The Appellant was represented by Mr. Nuccadam during the hoar ing of the appeal and the Republic was represented by Mr. IQiarbush. Their submissions are reproduced below for easy reference: MR. MUCCADAN: May it please your lordship, The appellant in this case is appealing against con- viction on two counts of the offences of stealing by ser- vant contrary to section 265 and 271 of the Penal Code. The appellant, who was accused No.1 in the lower court, was convicted on both counts, while Accd. No.2 was acquitted. The Appellant was working with National Steel Corporation (NSa) as a Credit ControUer. One of his duties was to follow up debtors who owed the Corporation money. It is also not disputed that a customer Imown as S.N. Merchant Ltd. had issued two cheques to the appellant i.e. cheque No.Al 106502 for shs.13,009/20 and cheque No. A.106517 for shs.13,691/20 and that both were dishonoured. It is also not disputed that the appellant, on 2/5/77 went to the offices of S.N. Merchant on a motor cycle and demanded payment in respect of the dishonoured cheque A.106517. He was handed over by Gemul Laiji (PW.4) Shs. 13,691/20 and he issued receipt No.1336. The appellant admits writing the receipt and signing it. The on 4/6/77 G. Ismail lalji went to the offices of NSC and paid Shs, 13,009/20 in respect of the dishonoured cheque A.106502 and was issued with a receipt No.1336 by the appellant0 My lord, two receipts were therefore issued f or these sums of money and the appellant admitted that the two receipts had been written and signed by him. It is the appellant's case that after having received these two separate sums of money he handed them over to one Joeni Rashid Mduma - Pt1.6. He (PW.6) received the money in the course of his duties. When PW.6 came to testify in court he denied having received these two sums of money from the appellant. My lord, it is the word of one person against the other which is to be believed - the appellant's or Nduma's (P14.6), This is a simple case my lord - which of the two per- • sons is to be believed? In this connection I would refer to the judgment of the learned trial mctistrate on page 2, para 4 ,..(quoted) My lord these are the two reasons given by the trial magistrate as defence by Mduma. 0• 0• • • 0 4/ 0 • • 0 • 0 0 In the first place, there is no evidence on record that there existed a practico within the NSC whereby when a credit controller or any other official of the NSC that whenever a sum of money was handed over to the cashier he or any other person was made to sign on the receipt. There was no evidence at all that there was a practice to that effect. My lord, Mduma (PW.6) is certainly a person who is so closely connected with these o±'fences - that he is a person who has an interest to serve, by shifting the blame to the appellant. And the trial magistrate never directed his mind to that important point of law. Mduma's evidence shou]d be taken into consideration with a degree of care. It is one that should have been cor- roborated by an independent witness, but such evIdence is lacking Although he has said that the two receipts appear to have been extracted from a receipt book which was not in use, if Mduma was the person given he would not have come to court and said he was not one who gave the receipt book. In the last para of his judgement the trial magis- trate said he found the second Accused's defence as reasonably true and acquitted him of the charge against him. Here the learned magistrate made a serious mistake. He should have posed a estion as to whether the appe- llant was to be blamed or Mr. Mdurna, and give reasons on both sides. But instead he merely said the court has to decide whether the defence of first Accused (Appellant) is proved reasonably. I would prefer, my loi,, to deal with these reasons, as given by the learned trial magistrate The first reason given by the magistrate was that when the appellant drove to the offices of S.N. Merchant on a motor cycle and collected shs.13,691/20 in cash, he was acting irregularly since all cash payr.ents are supposed to be paid to the cashier in the office. My lord, the appellant was the Credit Controller, Could there be a better evidence of this than that of a person who had worked with him for two year? I draw the court's attention to the evidence of Mduma (PW6) at page 14 of the lower court record - 8 lines from the bottom of the page "The 1st Accd, could receive cheques. The 1st Accd, could receive money from certain debtors and remit the money. If any of the accued received money he had to remit it to me," This witness - a former Assistant Accountant with NC says the fact that the Accd, used to come and collect the money was not contrary to the practice adapted to the Credit Controller in the N.S.C. (Although there are other witnesses the appellant could not go and open the office of Y.S. Merchant and collect cash therefrom but that evidence is at variance with the evidence of P.6 which was not considered in this regard). I would like to draw the court's attentIon to the evidence of P11.5 Pascal Mu0anga at page 12, (D Nuccadam). My lord the reasoning of the learned magistrate is that the appellant went outside the scope of his duties in collecting the moneys from the NSC debtors. This reason- in,g on the part of the magistrate does not take into account the evidence just quoted above. The second reason given by the magistrate to justify appellant's conviction was that the receipt book used by the appellant was not in regular use. . . . . . . j a 5/ I S • 0 •• 0 6 0 My lord, apart from the hearsay evidence that it was not in regular use 9 evidence to the effect that the person did keep stock of thO receIpt books had not been called. It is P1,J,6 - the person who has an interest to serve. PJ.6 was not a cashier. The appellant never denied in the first place that he had received the two suns of money. He was asked and he said I received the money and handed it over to PW.6. Although an officia'l'letter was written to him, the appe- llant never ropliod to this letter. At one time, infact, the appellant was forced to resign. His failure to reply to that letter was taken as an ingredient which constitu- ted this offence. But what was the purpOse of a written letter when he had aJxeady eplained verbally? It is just like saying because he did not reply to the letter, the appellant therefore stole the money undo' dispute. This is wrong reasoning. These, my lord, are the reasons given by the learhCd magistrate, on which he based his cone lusioh, The most important thing is to determine which of the two stole the money - the appellant or Mr. Mduma. According to evidence on record Mr. Mduxa was thrown out of his job (from NSa) because of forgery. Ref. p.12 evidence of PASCAL MUGANDA, Sales Officer with NSC, 12 lines from the bottom of the page). "Mdurna is no loier with N.S. Corporation. I hear he had forged documents from February to September. OBJECTION raised by Mr. }iarbush: This is pure hearsay, my bid. COURT: Yes, but itis on record. 0MUCCAD.AN: True, my lord, It is on record. It can never be hearsay. He resigned. I submit that the trial magistrate had not sufficiently weighed the evidence of Mduma in the circumstances of the case. Consequently he came to the conclusion that the appellant was not trustworthy and thus guilty. It is my submission that conviction was wrongly recorded on the part of the appe- l].ant. I would therefore pray this appeal be allowed, conviction be quashed and sentence be set aside. MR. KHARBUSH May it please your lordship, I do support conviction in this appeal. I am satisfied that there was sufficient evidence to convict the appellant for theft. The learned trial magistrate in his judgement was also satisfied that there was sufficient evidence to convict the appellant. My lord, I wish to ioint out a few things in the lower ourt proceedings: The first item was whether the appellant in this case could go out and receive money from the debtors. There are three witnesses, First I will point out PW.2 Mr. Matemu (on page 10 of the lower court record). According to him, all cash payments are made in the office and not outside the office. The second witness, P14.5, whom my learned friend has criticised 9 said that the Credit Controller was not allo- wed to issue receipts without Revenue stamps. The third witness- W.3 on page 8, para 3 - said that the Credit Controller is not allowed to receive cash from customers. He is allowed to receive cheques only. Thus, as elucidaed by PW,3, the appellant received cash from the customers which was outside the scope of his duties as Credit Controller. He should have handed the money cvc' to the second Accused'. . ,. . . . . . . /6 I 6/......,, My lord, it was c1etr from the proceedings, and evidence that the appellant did receive the money from S.N. Merchant j and that he did notissue receipts or pay cash to this exer• cisc is there. I have nothing more except to pray that this court uphold conviction and dismiss the appeal. . MUOCADM: My loi, at page 2 of the proceedings of see that I was to represent the appellant at the lower court, Kisutu. But neither were suonses issued, nor even an application for them was made. You will therefore observe my lord that I was not given the chance to present my submissions. After reading the record and after considering the submissions by counsel who have appeared in this appeal I am satisfied that the charges against the appellant were not proved beyond reasonable doubt. The appeal is for the above reason allowed. The conviction on both coun - s is quashed and the sentences are set aside. The appellant is to be set at liberty forthwith unless held lawfully under other charges. Delivered in open court this 15th day of June, 1979. ICHA) JUDGE 15/6/79