20131011 TZHC Iringa2

IN THE HIGH COURT OF TANZANIA ATIRINGA (Iringa Registry) (DC) CRIMINAL APPEAL NO. 39 OF 2012 (Originating from Criminal Case No. 78 of2011 of the District Court of Njombe District at Njotnbe · -<• ~ . Before: 0. S. H. Chanjarika - PRM) !KLEEN S/O MLOWE .................. APPELLANT VERSUS THE REPUBLIC ....................... RESPONDENT (Date of last Order 27.9.2013 Date of Judgement 11.10.2013) JUDGEMENT MADAM SHANGALI, J. The Appellant, Ikleen Mlowe was charged before the Njombe District Court with three counts: 1 st count of the offence of Obtaining money by false pretences u/ s 302 of the Penal Code, Cap. 16 R.E. 2002; 2 nd count of the offence of ; Cheating u/s 304 .. of the.Penal Code, Cap. 16 R.E. 2002; 3 rd ~ .. r~ . -.. 1 count of-the offence of Kite-flying u/ s 332B (3) and 5 of the I Penal Code, Cap. 16 R.E. 2002. On ·17/10/2011, the appellant was convicted of all th_e_ three counts as c~arged and sentenced to a term of three (3) years imprisonment on· each count, sentepc~s to run concurrently and ordered to pay ,.. w compens~tion:·to~·the . - .. ·complainant, one Ayoub ~/o Mwinuka (PW. l). Th~ _Appellant now appeal against conviction, order and. serfrence. . ... .,. ·-~~;:~~~::/~. ~- ·.. ..... _ - . Th~- particulars of the offence given by the prosecution at ,>, ... _.. the trial. court were that, the appellant, for the 1st count; on . the 12 th day of Decer:nber, 2010 at about 08.00 hours at Mjimwem<;l Makambako within Njo:mbe District, by false pretence .~th intent to defraud_ did obtajn TShs. 10,000,000/= ·f~-e_m PW. l, one- Ayo1:1b Mwinuka, for business purposes; for .· the 2nd count; on the 26 th day of March, 2011 at about 09.00 hours at Mjimwema Makarr.i.bako within Njombe District, by m~ans of fraudulent trick or device did submit false cheque to PW.1 as compensation of Tshs. _10,000,000/= which in the circumstances he knew that there was no such amount in his account; for the 3 rd count; on the 26 th day of March, 2011 at ~bout 09.00 hours at Mjimwema Makambako within Njombe District, by means of fraudulent trick or device did .submit false cheque to PW. l as payment of Tshs. 10,000,000/= which in the circumstances he knew that there was no such amount in his NMB account. ... 2 The prosecution case at the trial court, as· presented by -its four witnesses was as . ·, ' follows. . PW. l, Ayoub Mwinuka is a businessman staying at Makambako. ·The appellant ~ \. was also a businessman and they are known to each other. On 09 th December, 2010 the_ appellant sent his wife Anatoria Mgeni and his brother in~ law Gaitana Mgeni to PW. 1 asking for a loan of Tshs. 15,000,000/=. Upon being given that: amount, al though not through the appellant's wife or his brother in-law Gaitana Mgeni, the appellant failed to ·pay back on time as - agreed despite several demands._ Later on the appellant gave PW. i a cheque of TShs. 10,000,000/= and when PW. l took it to the bank, the same was dishonored fo~_ lack of funds in the appellant's account. P~. l reported the matter _to the police and thereby the appellant was apprehended and charged. In his defence the appellant who testified on oath stated that he took a loan of TShs. 6,400,000 / = from PW. l in agreement to pay him TShs. 10,000,000/=. The appellant gave PW.1 a cheque of TShs. 10,000,000/= on condition not to draw it until when he is cleared by the appellant who was e:xpecting some funds from another source. However PW. l returned that dishonoured cheque to the appellant whereupon the appellant then issued two cheques of TShs. 5,000,000/= and TShs. ·1,000,000/= to PW. l which were fully paid to PW. l. The appellant stated that he was able to pay that less amount 3 • • .1 because'. _he was not paid his dues 1n full from the other source, the Government. At the conclusion of the trial, the trial court convicted and sentenced the appellant as shown herein above. Aggrieved by both, the appellant filed in the High Court a Memorandum of Appeal containing three grounds of appeal. These are:- . 1. . The .trial Court errecf irt ·law ··and· in fact when it failed to consider that there was no neither False Pretence nor Cheating as there was clear ' consent . and contractual agreement between the . contr_acting part!es, 1.e. the appellant and the . complainant herein. 2. The Trial Court erred in law and in fact when it failed to consider that there was no kite flying - as the issued cheque blank (sic) and :its presentation to the bank for payment was subject to confirmation by ~he appellant. -3. Conviction in absentia was contrary to Section 226 (2) Cap. 20 R.E 2002. In the conduct of this appeal Mr. Mbedule, learned counsel· appeared for the appellant while Mr. Ma~anda, 4 f< ...,,. learned State Attorney appeared for 'the resporrden t;· the Republic. . .. At the hearing of the appeal Mr. Mbedule· submitted to . . . the effect that the trial Magistrate erred in law and fact when ♦ ... he failed to discover that there was no false pretence · nor cheating; there was no kite flying because the cheque was blank and its presentation to the bank was subject to confirmation by the appellant and further the cohviction and sentence• were against Section 226 (2) of the ; Criminal - Procedure Act. In general, Mr. ~bedule argued that there was no sufficient prosecution evidence to prove the charges against the appellant. He stated that it was necessary the prosecution to prove that at the time of entering the agreement the appellant had intended to cheat or defraud because for the offence of false pretence to stand, there ought to be proved of some conducts of the accused person especially when entering into the agreement. The learned counsel submitted that it is quite clear that the appellant and PW.1 entered into a loan agreement of which the .appellant failed to honour his promise as stipulated in the. agr~ement. Under such situation money received in such transaction and consequential to the appellants failure to r~pay on time constitute a suit on contract but not an offence of false pretence. To support his contention the counsel cited ., -. ' two cas·e authorities namely: Emmanuel s/ o· Kaba.no Vs. 5 ·•.;,.: .> :f'. .. - <c4": :~~ - .._-t,t : , . _'":.-1. ... •· Republic (1983) TLR 81 (HC), and the Republic Vs. Titus Petro (1998) TLR 395. On top of that Mr. Mbedule argued that the mere fact . that the appellant toqk money frqm PW .1 does not constitute }_ fraud or false pretence. There is good explanation as to why the appellant failed to return the money. PW. l and the appellant were businessmen supplying Government with fertilizers. All depended on" the · Government payments. The trial court had failed to consider all that . . On the issue of cheating Mr. Mbedule · contended that Section 304 of the Penal Code define cheating; however the; c~eque was_ issue by the· appellant as a security and both the· appellant and PW .1 knew that the appellant's account had insufficient fund to meet the cheque. PW.1 was told by the appellant not to deposit the cheque until further notice from the appellant and that the other blank cheques wen~ issued by the appellant to keep PW. l out of worries. In his submission, Mr. Maganda learned State Attorney conceded to this ground of appeal.. . False pretence Is defined In section 301, of the Penal Code, (supra) as:- . "any representation by words, writing or conduct of a 6 ., I •• .-.·, · matter of fact or of intention, which representation is false and the person making it knows to be false or does not believe to be true". ii, Section 302 of the same code provides also that: -· '!i. "Any person who by false pretence, and with intent to defraud, obtaining from any · other person anything capable of being stolen, isryJuilty of a misdemeanor (an offence), and is liable to · imprisonment for seven years".. ·'J 'i, Section 304 of the same Code provides for an offence of· ~heating that:- '. "Any person who by means of any fraudulent trick or device obtains from any other person anything capable of being stolen or any other person to or . ' ' deliver to any person anything capable of being stolen or to pay or deliver to any person anything capable of being stolen or to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device, is guilty of an offence and is liable to imprisonment for three years. The. records .speaks very clearly thaf the ··appellant and·. 7 --~ -. _.,,... ~ '-~ ·•<f ;~"!.r•':.~ _,., ._:-;~ _I• . . .. . . PW.1 knew each other as businessmen. The appellant, on 11 th ' I December, 2010 took a loan of TShs.5,400,000/= from PW.1 and an agreement· to that extent was written which was tendered and admitted in a trial court as Exhibit P 1. The said agreement shows that the appellant was required to repay that amount plus the interest ·or Tshs. 1,000,000/= on or before .... 11 th January, 2010. On 20 th December, 2010 the appellant .was_ also given Tshs. 1,000,000/= and a bank pay-in-slip was te!}de.red and admitted in court as Exhibit P2. On 22 nd _·December, 2010 the appellant was given TShs. J,000,000/= <" • - ~--, 'at).d .P:"ba:n:k pay-in-:-slip was tendered and admitted in court as ~~;· . ·Ex~ii>?r{.:~~- ...Aiair/on 23 rd .December, 2010 the appellant was . . ;- ... ·"· ,·, ; · . . ... giv~b-·rshs. 2,600,000/= unfortunately there was no written doc-µmerit for this last amount. That makes a total of TShs . . _-_}0,000,000/=: On _the same date the appellant was also given Tshs. •J?..,QQ0,000/=. The appellant issued a cheque worth TShs. 10,000,000 /= which was dishonored by the bank for ~~sufficient fund in the· appellant's account. Later on the appellant issued two cheques to PW.1 ·worth TShs. 6,000,000/= to PW.I, which was fully paid to PW.l. The matter was then discussed between PW.l, PW.2, P\V.3 and the appellant. On 26 th March, _2011 the appell.mt conceded to the debt amounting to Tshs.9,000,00n/= promising to l?ay the same later. . J, A promise to do something in the future is not by it~ lf a 8 . , . - ........ _ false pretence, but such a promise may be coupled with false statement of existing fact, and where a·· promise in future expressly or impliedly contains a false statement of existing fact the offence can be proved. -The particulars ·of the charge must set out with sufficient particularity the existing statement of fact which is alleged to be false. See for.instance RV. Dent (1955) 39 Cr. App. R. 131 and Alli Mohamedi V . . R [1968] H.C.D. 277. In the offence of obtaining money by false pretence, it should be proved that the accused had made any false pretences of an existing fact. In the case of Thomas Jorrat V. R [1969] H.C.D. 157, Platt, J. made the following.· observations:- - " ...for here the accused did have an account at the National Bank of Commerce in Arusha which was in credit. He hgd given ?as cal to understand that there would be money in his account on the date on which. the cheque should be presented to cover the cheque. Pascal accepted that. There was therefore no false representation as to an existing fact that there was sufficient mor1;ey to cover the cheque at the time that it was made.- What was accepted was promise to meet the cheque in the future. Unfortunately that promise was not made good; buf that did not amount · -to obtaining money bJ/false pretences." 9 - . :' :f / ~. ~-- .;._, _( . 4 •• •~ >: .:_,.: . :-f~;:_~ ,;'.•-. ·-:- -~~-~h:~;: •.~:•;-. ': -• . . Thus 1n order for th~ charge of false pretence to stand,· there must be false representation and intention to defraud -l?Y an accused person. Looking at the evidence on record there was no false representation on ·the part of the appellant because the appellant and PW. I knew each other as businessmen and PW. l in lending the_ alleged amount to the appellant he did so believing that he was giving the appellant as a businessman who- was familiar to him with expectations that the appellant will refund him as they have agreed . •_ .... •• • < • • •• ,• ·.,,~- ••• -· - C-, • - • • • • . ,_ .... -_ Jh_e_ al?pellant made efforts to issue two cheques to PW. I to -~ettle 'l'shs. 6,000,00Q/= which were fully paid. The appellant had tried to settle the remaining balance but failed. PW. I went ahead and claim to the appellant which ended up by writing -down the agreement that the appellant will pay the remaining Tshs. 9,000,000/= any time from the date of the signing of the said agreement (Exhibit PS). Money was already issued from PW. I to the appellant, at the time the appellant issued that cheque meaning the -issuance of cheque does not instigate the lending of that money. What was accepted by PW.1 at the time of the agreement was the appellant's promise that he will refund that amount of money in the future time, in that sense the money passed to the appellant without fraudulent trick or device and I can see . . no false representation with intent t_o defraud on the side of the appellant as per the evidence on record. Henceforth I join 10 ... . .:,, ,.:;. . _~L--..; -_ ·~ ::..·; .. +-:·;, - hand .with both partie~·· that· the· first ground of appeal has merits .. Regarding the 2nd ground .· of appeal, .Mr. Maganda contends that, the appellant is guilty of an offence of kite- flying since, in issuing the cheque which · was later on dishonored by a bank, the appellant knew that his account has insufficient funds to meet the cheque; Although it is also true that the bank did not inform the appellant within 8 days as required by the law. Again the appellant's defence that he had issued that cheque to PW. I with further instructions · that the cheque should not be deposited with the bank until the appellant had informed PW. I cannot be left without proper consideration by the court. Meaning the appellant knew that his account had insufficient fund to meet the cheque but he had expected some amount of money to. be depo~sited in his account and thus from when he was about to receive that money then he would. have informed PW. I and. from there the appellant could have been held responsible. I entirely agree with the defence proposition and convinced that the mental status of the appellant when engaging in this transaction and drawing the cheque in question negates him from the liability of all three counts. The.· · cheque ·was drawn and delivered :to the PW. I~ by the appellat).;t 11 . .-·.. ., .,, '_ .. ;.. under specific co~ditions but for the flash quick of PW. l the· che_que k_as presented at the bank and bounced. However, upon returning the sa1d cheque the appellant issued two ~ . cheques -worth TShs.6,000,000/= to the- PW. l which were fully paid. Had the trial Magistrate considered and evaluated the defence evidence the same way he considered the prosecution evidence ;he would have found that the whole case is based on civil claims rather than criminal case. There is no sufficient prosecution evidence to prove the alleged criminal offences to the required standard of proving beyond reasonable doubt. ·. _The. third ground of appeal was withdrawn by Mr. ; · Mbed't:ile_ whert he realized that the appellant was correctly convicted on 17/10/2011 when he was present in court, and by all means Section 226 (2) of the Criminal Procedure Act Cap. 20 is not applicable in this case. Finally, this appeal is meritorious and ought to succeed. 1 .. The appellant was wrongly convicted and sentenced. The appeal is hereby allowed; conviction and sentences against the appellant are. set a,side and quashed. Order of compensation is equally set aside and the appellant is to be set free forthwith from prison unless_ otherwise lawfully held. M. S. SHANGALI · JUD.GE 11.10.2013 12 ' ~ .. --~ ~ . . . . . . -:_ ...,Jp .. • •• . jbd~~ritenf ·d~li;~r~d'· tod;~t~'. !ih '·tJid:, p~esen~e•; ·of 'JYh,:. • I ~ ,• • .• .• It . •. .' "' 0 '/ • 1- !'" • ~ • •· •~. ~ I ,; "#, ~ '· ' ~ ~ ,.i,, t • • f Mgavilerizi, learned . State · Attorney · representing · the r~spo~dent/Republic artd th~ appellan\ pre~eht irt·pet'soir. M: S'. SHANGALI JUDGE 11.10.2013 13 ; . ., . ~.. •· .. :,)~, ·.·: :~\ ~~:;~ ,li- :'.\':~'.;:.,:·· >...; .