19701016 TZHC Mwanza

IN THE HiGH COURT OF TLNZINIA T MW1NZi. Jppcllato Jurisdiction. CRIMINIL LPPE'JL NO.373 OF 1970. Original Cximinal Case iJ0133 of 1969 of the District Court of Mwanza District at hwanza Bcforo V.DJhaiskar,i DLRNLi3JS SHLLL. . • , . • . . . MTHLLANT(Original !ccuso -. Vs. THE HEPTJbLIC. S • • • • . . • . , • RESPONDENT(Criginal Frcoco CHiRGE: Stealing by Servant c/ss 27 1 and 265 of the renal Codo (3 counts, JUDGMENT. EL-KINDY, g.J. The appellant was charged with three counts of stealing by servant c/ss 27 1 and 265 of the Penal Code, Cap.16, but he was only convicted in respect of the third count for which he was sentenced to tw years ana twenty-four strokes. He was also ordered to pay compensation to his credit & saving society in the sum of shs.780/-. He is now appcal ing against conviction and sentence. The appellant was a member of Nynza Savings & Credit Society L'd which is a registorud society. It the time of the alleged commission of this offence, the appellant was working as a treasurer of the Sooioty in place of one Mambo, who had gone to Moshi on a training course. It apporr':: that the treascrer was the only paid servant of the s'cioty alt1ough it was not clear whether the appellant was also to be paid or not. ccordiL[: to the sat procedure, any member of the society could ask for a loan and his application would be considered. Normally his aj'plioation is considered

and paid to the applicant by way of a cheque. Howover t in' cases of emergency an applicant could only be granted a loan of upto shs.200/ by the secretary of the society. This case arose out of the amount of sh.780/- which the appellant had received from his society, and the issue before the triourt was whether this money was authoris4 • loan o not. This cheque wsout, and counter-signed by the Regional Co-operative Officer after it had been signed by some of the authorisci si(:natories thereof, after the appellant hod submitted a certificate in the name of one Sadrudin M.H. (Exh N). In this document the appollant certified that the above named person was a member of Nyanza Credit Union and that he was the right payee of the amount of shs.700/- endorsed on the ctachod cheque, but the truth was that Sadrudin M.H. was never a mambcr of that society at any time. Ho 1105 simply a businessman. Lnd that the purpose of' payment was to purcho.so stationary and office equip- ment. Lgain the truth was that the purpose was not as the document stipulated, but that the appellant took the money and used it in buying phonogram suit case, attache etc for his om use. Ind although the chc:'L was in the name of the seller of these items, the money in fact was mcan for him. The appellant stated that the money was in fact a loan granted to him by the society, but this is contradiction to his own

letter Exh S 2) in which he admitted that he had used the money without the authorisation of the committoo - presumably • 1 ieant the loan's committo and that he was offering to refund the thoncy to the society within two wooks. The learned magistrate came to a definite finding that the monog was not loaned to the appellant, and therefore the taking, by the aprell:. amounted to theft in law. The learned magistrate relied on a number of facts in coming to this conclusion. He found that hxh N contained false information and that by use of this document, the appellant played fraud on his society in that ho was able to obtain the lost signature on the cheque. He argued, cccnvincingly in my view, that if the money was a to the appellant, as the appellant was claiming, he did not see the relevance of Exh N or the need of it. If the loan was given to the appo-1ant, than Exh N would have shown that the name of loanec was the appellant, but this was not the case. Thpurposo would have bean diffor':t from thatstated in the documeit Exh N. The learned magistrate also relic 1 —2— on the appellant's own admission as contained in xh 52, which showc.. that he had spent the money without lawful authority. If it was a loan, the appellant would have said it clearly and the rcturn of it would hav boon a repayment of the loan. The appellant argued that the learned magistrate was not justified in

concluding that the money was not given to him as a 1oa. Lcccrding to him if the money had not been given tc him as he claimed, the peopie who wore authorised to sign the cheque llxh Z would not have si.ncd it in the first place. From the evidence it appears that four people including the appellant were authorised t sign cheques, o'nC. the cheque itself bears four signatures including tit of the Rcgiona Co—operative Officer, but none of the prosecution witnesses (Basondole, Idala or Iitesigwa) was asked to identify any of the signatures appearong on Exh Z as the learned resident magistrate cc ably pointed out. Th.: learned magistrate considered this point and hcl. that the othcr three signatures were not known - the authors thcroof. 1 think this was an important point because tf the 3 signatures wore ne': genuine as it was implied by the prosecution or if they were obtained l:y way cf fraud (and there should have been evidence on this none was given), this fhcquo would not have boon paid by the bank in the first place. As it can be seen, the cheque was in fact paid and this meant that the three signatuz4v must have been genuine and if so the signatoric must have consented to making this cheque in favour of Sacirudin M.H. Ls it will be soon this not only raises doubt about the evidence of Basondolo when he claimed that it was not their practice to issue checuco to traders, but

lends support to the aj.pcillantts contention that thp signatories, who he claimed were the presacution witnesses, must have consented to the practice and that they were then denying it delihcra±cil;,. If the cheque ws signed and raid, then those who hove authorisod the pyment must have known the purpose for which the money was being paid t. Sadrudin M.H. Therefore, although the contents of document Exh N appeared to be false and although that the appellant admitted lator (Exh 52) that he had spent the money without authority, the possibility that the sioney, shs.780/— might have been given as a lean to the appellant was not ontire., ruled out and the appellant's explanation that ho was forced to writ the admission uuld not appear to ho unreasonable at all and the benefit of doubt shou'd have been given to the appellants For this reason, therefore, I find that it is unsafe to support the conviction0 The cc•nviction is quashed and the sentence and order j SOt aside. Delivered in Court on 16th Cctobor, 1 97 0 ff (z.N. EL—KIi\TDY.) Jp. JUDGE. 'S