19710526 TZHC Mwanza

IP TI-It I-ITOH OCJItT CH P ZhI'TIL AT IHJittZA Appellate Jixciodiction CFJ1MItJ.LL LI'PEJil 110, 297 OP 1970 (Ooinal Oairnl Case Nb. 271- of 1969 of the distulct court of Mwan:a before H. N. Kazimoto Esq., roeilentcdistratc). JOHN THIHtOiT . . . . . AP]IELLLJTT (ozaloilJI ;ccus) - . veraus TI-IL IIEPUBLIC . . . . . . . . . . . . . I RESP0NDE1TT (o1ioI1ILI PR0SLCuidIt) CHART-N:- 3 counta of fordery C/S 337 of Penal Code.; 1 C0Ufl1 of fraudulent false accountin(: C/s 317(c) of Penal Todd; 1; 4 co aits of stea1in by servant c/ss 271 and 265 of P0n21 (Joic. JUDGT,7 ffIT EL-KIIDY, A0 1 J. The appellant, John Triplow, was chored with and convicted at hroo forpery contra to action 337 of Penal Code, one count of fraudulent false accounting contraVy to section 317(c) of the Penal Code, ad tour counts of oteolinI by servant contrary to section 271 and 265 of the Penal Code, On each conviction of foroery and fraudulent false accountilh:, the a ppellnt. n a vas sent n ecd to three onthst inpriso.Lent; ni. and on ouch conviction of sec1in(-; by servant he was steneedto two years 1 i:laria:cn- nent and twonty-four strokes of corporal punishuent This neant that tiie appellEflt was awarded a total of nine (9) yearst iuprisonieent and 192 strokes of corporal punishuent, thouh the learned nad:istrate said tilur tIe appellant would undergo 24 strokes of corporal punishuent. However,

th sentences for .1 orpory and fraudulent false accountint were ordered to non consecutively- i thus fivinl the appellant a tern of 12 uonths The sent ncca for theft by servant were ordered to run concurrently, thus oivinC, appellant a tern of two years in iJrison This pave the appellant a total of tixcee years inprisonrient and a set of 24 strokes of coxporel punishra-nt. Then for reasons which I shall refer to later in this judpuent, the learned maistTate purported to suspend the corporal punishiaent but the accused (appella nt) is to underpo a total of three (3) years as ordere d The appellant is now appeolinp udainst his conviction und sentence. On appeal he was represented by the learned counsel Mr, 1Iuparubiau At the triol, he woro represented by the then learned counsel TIr P'arelth. The tepub1ic was represented by the learned State Attorney, Mr. Senatta The appellant V/as not present at the hearinp itse]1. The urouncils of, appeal are brief and I shall quote thaa in full. They read as follows:- (l) That there was no evidence to prove that Mwanza Developacnf Sche'rie fell-within those bodies to vthich the idininun Sente:iooa Act applies. (2) Tho sentence is uar1ifcstly excossive. ... 2 The appeal therefore did not seal:. to challenghe conviction itself eacost in so for as it rob: ed to the applicability of the HirWouri Sentences iet Ccp.526 Basically, it was an apsoal

egoinet the sontonce The apooll cn-t was ompi eyed by Mwanza Devel opmenb Scheme referred to s the sc ehaa& 1 ) as a cashier,since 15th of Hovember, l968 His duty jnclucb- d th handling of all cash payments of the scheme. Ito kept all the receipts for payments made by him on behalf of the Schene, and Ito also banked the money on its bchlf It would oppecr that as from Ilovc:ebee, 1968, the accounting system used was that of cash iriproot, i.e. the scheme: used petty cash books, payment vouchers, receipt books and cheoue books Lnclas from' the end of february 1969, the scheme began to prepare and maintain proper hooks of ace OUit using the payment vouchers, cash sale receipts snd'Jthor documents then in possessien of the appellant The appellant also ked the keys to the two safes' Mworibeilaswa (P.11.3) was the account tnt Of the scheme, and he regularly checked the accounts of the appellant • On 6th March, 1969, he checked the appellant' s ace ounto ahin he discovered that payuents made out by the appellant were not entered-in the petty cash book. The appellant was instructed to nake the entries, but he cUd not Co so until the 18th of March 1969. Although he made the cute -ic later, the appellant failed to make .the sunmies as well and Uworibalas 'a. was forced to make a thoroih. check He discovered that the appellant acts supposed to have balance of S.3,390/40 hiter tahing into

account the eatount paid out and the cash in band There wqs no bank balance then. When the appellant was eslind to account for this money, the appellant could not explain how The loss occurod, eaTd it is alleged that he told Mworibalam:a that the money vas lost • Upon further exeaiinot ion of documents, it was discovered that certain documents had been tampered aith to show either more or less was paid out or received and that false entries had been made. As aresult of the discovery of these irrc -d;ularitics, the appellant was accordingly ciirged In respect of the 3rd end 4th counts, Saluetu 4) told the trial court that he hod a contract with the scheme to paint one of their buildin: ci, It was agreed that he would receive payreants in instalments and that is tint in fact happened, end that pnt was provided by the scheme itself, His contract was worth S.520/- and this eriount was fully pitid to hii.' He was shown pa7aocnt voucher (fxhi'oit 6). He said on thisvouchcr he viassieepiy paid .lOO/-, sad not.I.2100/- ccc it then appeared in the duplicate; Obviously, the amount of ioo/— stated in words and in figures, bad been croased out and in their place, ±1i word:: and in figures, the onount of 2.2100/- was added. The appellant agreed th:a he had cAtered the mecunts because, apst from the silount Icaid out to Kassin Salun, another amount of 20001- was paid out for building

clegeajc.le. The learned -ajar istrate rejected this ex1:lcnati on mod held that the sit was forgery. in my flew, the boanoed magistratça' s finding was justified. If 1-ic had spent an ct,dditionoi aciount of h.2000/- towards purchase of / buildirlhiea tends, this would not have appeared in the oa:ie- voucher rth the amount paid out to Kassija lc1uci asreoumeration for services rendored nan, the- words purchase of Di1oiri- materials" appear to have bce-n ci different appearance to the words 1 Mr. Kssim apainter on contract. There would also h-:ve been cash sale. or invoice- to support it • There in doubt that this docunont was altered. The learned trial Liq3-istrnte hcld further that the alteration amounted to forery as it told lies aain3t itself, and that the appellant must have stolen the amount of s.2OOO/- These- findins vlerc; not attacked on appeal. In roe-pact of count 5 an7l 6 9 hury Hair (P.7.9) told the trial c.ri that on 3rd of i-iarch, 1969, he sold brake linin; to the scheme for .350/-. He said that he issued a receipt to the customer, ad he retained its duplicate which he showed as cash sale receipt No.073 in Exhibit 9' , The duplicate showed tht the amount received from the scheme was He said that \Thite-sido (P.7.5) was the one who collected the ooc1s and paic the money in cash. However, the, oriainal of this cash receipt (073) SiiOyTod tbnt the amount paid was

S1350/- Hair denied that he received .1350/- on this anount'. Phitosida did not say enythin. about this amount of money. Nor was he asked anythin - about it. The ori5inel cash sale receipt was in possession of the appollant On this isue, the- appellant did not nay any- thing specifically but he alle;ed ;enerc1ly that he was ov-jiloacled vdth wor:: and that 1-ic kept the documents in his office On tile-se counts, the trial man-istrate "felt compelled" to hold tli:-t the appellant Z,orged cash sale re-c ipt No.073 addinE a fiure of one in irOnI of the fi;urcs 350 so tha'the amount cane to be 1350/-, 111d inferred that the appellant pocketed the ba1;nce. Jain, these findinics of the b --med trial ma:;istrnate wore- not attacked on cppeal. In respect of the 7th and 8th counts, Mwanja (P.7.1) told the trial court that on the 10th of blanch, 1969, he took 14 cases of empty bottles, to Teng anyika Br.oweris - Mi!anza, suid that he was iven a rofund- of b.2801-9 He claimed that thereafter, he-handed over the cash sale io.40915 (Exiiieit II) and the money to the appellant; However, Mwanja was not given receipt do:c- i... money he paid out G-iga (p.-. i- ), euployc-p of Tanganka Breweries Ltd.-, Nwanza, .confixieod that he paid out l.280/-, in cash, to a customer in ronpact of Exhibit 11, but he could not raeenber the ne-ne of the- cue- tcner. Nor he asked if he d identify the material

customer if he saw him again, so that his evidence did not confirm Mwanja' s claim. On this issue-., the appellant said that lie did not take the s.280/- from Tang anyiko lirowerics Ltd., and that he did not steal the sun of .154/70 from the schcme an However, Mwbalaswa (P.7.3) sai d that when he checked the appellants s accounts, the appellant "agree-cl that he received -the moncy" 0 Also in-thc course of checldaig, IvIwambale-swa (P.7.3) discovered pauent voucher-No.19.2 (Exhibit 5), which purported to show that the appellant paid out .280/- . . . 4. to Tanganyika Breweries Ltd. This anount is sir.iilar to thet on each a: 409159 an:1 the peyment voucher referred to this cash sole as the one in support of the trensaction The alleged payment voucher too, showed was not ci, nod by onybody, although this does not appear to be iaipor'h":h, as there wore :cieny genuine payment vouchers which nero not signe a oi':nor. Havever, ho learned ricgistrate held that the appellant received the cccount of .280/-, and that, therefore. it vas not correct that, by the sane cash sole, the appellant paid out 5b.2801.-. He was satisfied that the nalaLag of the paraent voucher Was fraudulent and that it was intended to cover the amount he had ciisappropriaed. I think his finding that llie nancy was received by the appellant cannot be challenged as there wtcs- evidence fron Mwenja and also the

appellant's own adoission to L'iwcnbalasa. If he recei'occT the anount together with the cash sole receipt No.40915 (Inhibit 11), it was clearly fraudulent to use this sne cç,sh sale to support his allege.- . tion that he poid a similar amount of S.280/- to Tanganyiha cwerios LidE And in respect of counts.9 and 10, Chohan (P..i.7) , an enployoe of Tenganyiko Bus Service Co. Ltd., said that he issued cash sale receipt ITo. 1043 (Blthibit 14) after he sold one inner column steering spindle for S's.541/70. lIe said this amount wow paid to him by chcquc-.(Exhibit 13), ord that there was his endorsement at the back of the cheque The cash solo showed that the cheque given in payment was NooP.041964, end this talliod with the number on Exhibit 13 Tho amount on Exhibit 13 is Si.541/70 and. signed by the sciicne But the amount on the cash sole receipt was a.1541/70. Cholmn did not recollect who the custaeer was P'hitesidc said that he authorised payment of 541/700 Then there was a cash voucher (Exhibit ? 1`10.1178), in the hondwriting of the appellant, showing th:tan amount ofl54l/70 was paid for steering spindle, and. in support of ouch payment, tbz cash sole (Enhibit 14) was quoted The duplicate of this cash sole (ethibit 15) showed the amount as .541/70 On this evidence, the trialncaistrnte held that the amount in fact paid out was h.541,/7C and not h'.1,5d.1/70. As the pa::ent

voucher (Exhi±t? IT01178) was in t]:o handwriting of the appellant, he was satisfied that the appellant Was the one who forged the cash sole (Eiibit 14) ,d that he pocketed the balance. I think the evidence shows clearly, that the cash sale was forged and a one was inserted bef'e the 541/70'; As it con be seen, therefore there was apple evidence in suppt or of' each of these counts.' However, the learned counsel for the appellant c'.rgaod that there was no edence that 'the scheme was registered society for the purposes of the Minimum Sentence Act, Cap.526, and the learned State Attorney conceded on this point' It is clear from the record Of the evidence that no such evidence was led, and therefore the learned magistrate erred whom he - acted under the Liininum Sentences nct, Cap.526 when he passed the sontoncem. . .15 In addition it was ardued that the sentences were excessivo. Nith due respect, I do not think that the sentence was so excessive so as to reçuiao the interference of this ceurt I set aside the teas Of impriSonment. imposed, end impose therofor a sentence of three (3) aioeitlis in count 3 tbree (3) years in cout 4 9 taree (3)months in count 5; two (2) yc2 ars in count 6; three (3) months in count 7, nine (9) months in count 8, three (3) months in count 9, and two (2) years in count iO' iai these teri:as ohouid served concurrently. The learned no.istratet s scheme

of servind the of inprisonueiit wifld not necessarily have been illeyal in vievi of the Iii,h Court decision in the case of IGhihLI v. F (1968) Et.C.D. No, 331, if he had not erred as I have explained'. Purther to thtt, the learned ma('istrate purported to. suspend' the sentences and imposed an or.mibus sentence of three years, In this oain he erred, as he had no power to suspend and impose another sentence as he was already functus officio and he could not impose omnibus sentence as he purported to do, as thet wol:Lld be contrary to many decided authorities of this court o If the learned oayistrete discovered subsequantly that he erred in imposind the sentences, the course open to.hirl was to remit the case file to the i'i±yh Court for appropriate action . ORDEN:- This appeal is dismissed D(--, livercd in Court on 26th May, 1971. (z. LT 11-K.ndy) 1T .JUDC, MWANZA . 26/5/71'. Present: li. Sekule, Absent : Mr • ih' arab onu and Appellant.