19851011 TZHC Dar es Salaam

THE UiJITED R:2:;;:UBLIC OF TANZANIA IN TI-:E ~-IIGI-I COURT OF TANZANIA ·AT DJ~R ES SALA.AM APPELLATS JURISDICTION HIGH COURT CRII-CIIJAL APPEAL N0.105/84 ORIGINAL CR:nr.:nu... L CASE HO. 7 OF 1 982 OF TI·IJ: DI:::iTRICT COURT OF M0:20GORO DISTRICT AT i-iOROGORO Before: Manento, Esq., Resident Magistrate. MUSSA 'JAZIRI MHINA • • • • • • • • • li?'2 :CLLAHT (Original Accused) versus THE UNITED l?.EPUBLIC • • • • • • • • RESP 01-JDENT (Origin-al Prosec~tor) Charge.~ Occassioning loss to t~rn Government, contrary to section 284A (1) of the Penal Code. JUDGMENT LUBUVA 1 J • In this judgment I shall deal with two appeal.a' consoli- dated. These are Crimin.al App~al No:._105 of. 15)84 and Criminal ... Appea1 ifo. 106 of' 1984 both of which involve ()ll-e- and same person, the appella:;.1.t. Except :for t~o plaoes of incident and. t:i,.me, otherwise th0 :fact::, in both ca:ses are on the whole, similar and in eacb of ths cases, the appellant advanced similar type of' defence, In ·botb. cases, the app0llant was e_:f:fectively represented by tho abl0au..:. ci::..st=!-r..guished advocate Hr. Haule who in arguing one o:,: t~"10 ap~)cal, before this court, · adopted the arguments and subr.ii.:::..,ions in the otherappeal. Both appea1s were argued before this court on the same day one after the other, - 2 - For the Republic, lear;:.!.od counsel ]Vle.ssrs Kb.aday and Mapalala appeared. In these circumstances a consolidated judgement was deemed not in appropriate. The facts, though :fairly lo:ng arc or.. the main, not . seriously dic:::,·c.:"toci.. They are auff'iciently brought out in the judgments of thetwo learned Resident Magistrates who tried the cases. I will set them out briefly in seque~ce f'or easy appreciation of the matter. In appeal, Uo.105 of 1984 which origina~es from Morogoro Resident Magistrate 1 s Court Criminal Case No.7 of 1982 (herein to be referred to as the Kilombero Case) the appellant who had beon charged with other four accused porsons was convicted of' the offence of obtaining money by false pretences contrary to section J02 of the Penal Code. The othor co-accused prsons were acquitted. He was sentenced to 8 years imprisonment 11ith the attendant order of' compensating the government the amount of shs.59,840/= involved in the charge. 'l":ie sentence was ordered to run concurrently with tho sentence of' imprisonment that the . ;app~llant was serving in. Morogoro Resident l"'J.agistrate 1 s Court Criminal Case No.8 of 1982 which is the subjectmatter of' the consolidated. Crir:,L--Lal Appeal Ho.106 o:f 1984 :in this court. as noted. It ·was the prosecution~. s case that on the basis of the Local Purchase· Order No,. C J4J491 and voucher No.180/12 both o:fw'.c.ich were issued on 20th Novemb<:)r;. 1981 from the District ~:Tater .:.'.,'ngineer Kilombero, chequ~ No.DaD 61.21l.l7 of' 5th i.)ecomber, 1981 :fol!r.· shs:,-59,840/= was issued in the favour of' tho appellantts firm Xanzari..ia Typew.r'.i.ters Service Co. This was supposeq. to be payment f'or the various ~terns ofstationery supplied by the appellant to the of':f'ice of' tl:::e Dictrict ·;-rater ~i.lleer Kilombero. That the appel1a..T'l.t claimed. p2.yment f'rom the lulombero D.i,strict Engineer (PW 4) :for the stationary which. he (appel,1ant) claimed was awaiting collection and delivery at the Parish -Guest House within the neighbourhood of the office Qf the - 3 - District Water Engineer at Ifakara. It was the p:;:--osecutiori 1 s further allegation that the appellant navil'lg been paid as a result of hie claim and rep:c0oe::,.ta tion, h0 not only disappeared but there was no stationery at all for delivery. Consequently, he was charged and d.uly convicted. At the .. trial before the learned Magistrate, the appellant's defence in an \..msworn statement was remarkably brief if not scanty, He simply stated that on tl10 bacio or the Local Purchase Order, (exhibit P.10) he had delivered the stationery at the Parish Guest House I:fakara which were ~~ecci vcd by the d£f':Lcfor. 1.-iho had written the Local Purchase Order (PW 6) one 1-'lr. Mpona, He further claimed that the phys?l::cal coui-~ti:--.:.c of thG stationery 1rras done at the office of the District ·:rater fugL1.eer (PU 4) where upon Plf 4 being satisfied that t::-:.o statio:r~cry ~,,as in correct qua.11tity as required, authorised t~e ?uyr.1ent, Consequently, in his defence, he was paid the choqt:•.. e in q\.:estion, I will revert to this matter at length in due course. Now, a brief outli:2e of t~e fact.sin the other appeal namely Criminal Appeal No, 106 of' 1984 which I will.refer to as the Kilosa case in thin jud~nent~ As printed out before~ i t origina teo :from Eorogoro Resicient Magistrate I s Court Criminal Case No. 8 of 1982. In this casG, the appellant was charged wi:th three others. Oa the count of obta:i.,.---u.ng money by false pretences contrary to section J02 of the Penal Code he was convicted while the otI:.er co-accused were e.cqui tted. The appellant was ser~te:c::.cGd to 5 years imprisor..ment with an order to refwid to the gov :;Tr,.me~:. t Gh.s • 60, 520/ = involved, From that conviction, the appellant 1~ow e. :;_:,::_~eals to this court. It was the prosecut:1.on caso ·tha·c trn ap~:•cllant, being.··:a businessman trading in the name a::-.Ld. style of E/S Tanzani.a 'fyp,ewci ters Service Company I,~orogo:;-:-o, :falsely obtained shs,60,.520/- from ·the office of' the District ~Jater ~ngineer Kilosa ! by . pretending to have sold and doli vorod to that office w:hen in.fact i t was not true. - 5 - in my judger.1ent, :::ot material :for t:::.e determination of' the appeal• As already i:.1.dica ted, i:_;_--1. the Ifiiombero case, the appellant was paid by cheque in the name of his business firm Tanzania Typewriters G0rvic0 Company slw.59 9 8~-0/-. In this connection, 11r. · Haule, learned co:..n-~sol argued both in this court and the trial court that as the Local Purchase Order exhibit P. 1 supported the evidence of' accused No. ·;2-·: (nw.2) who was acquitted, i t was wrong :for the trial magistrate to reject the ap~ellant 1 s story that he had delivered the stationery. It was Mr. Haule 1 s contention that it was erroneous in law for the trial magistrate iL believing one part of the story o:f accu.::::ed Ho.2 (D:1.2) which resulted in his acquittal and at t~-~e sa:netirne rejecting the other side of' the story which was :favourable to tr.:.c appellant. 0~ the basis of the exhibit P • 1, tl10 Local ?urci:1aso Order, and the evidence of accused Ifo~·2 (rn--r.2), lir. Eaule submitted that the appellant hacl proved his in:.:wcence a:._<i -chat ~:0 si:ould. i.1.ave been acquitted~ The case of' Atht.:,mani s/o :Jhaoa:r.:. (1976) LRT Part I a...-id II No.15 was ci·ced by 1--·.x-. Eau.lei::.: oup~1 or-c of' t~-_;_e common principle that i t is the du.ti o:f the prooecu.tion to prove -their case beyond all reasonable doubt. It 1:r✓-as l'urther subr:i.i tted that the mere :fact that t:·:o otationery was not seen &1'::·1!'ounc1 in the store was not sufficient to warrant the conviction of the appellant, i t was mere suspicion. Alternatively, Mr. Haule argued that the charge of' obtai!:"ling by f'alse pret.ence.a. could not stand in Law as the alleged f'8.lr.:;e protGnce was in regard to services to be rendered in future. Illiss Ii.½.aday., .. .1earned State Attorney argued that f'rori.1 the oviconce of' PW!4~ and PW.6 no delivery of the :::d:;atio::::.ary had. been e:fi'ectod by the appellant and that the oheque i:1ad b0e:-l. i;:;cued at a time when no delivery of' the goods had taken place. That the conduct of the appellant of' disappeari~g a:fter he ::..ad received the cheque u,..-itil he was finally apprGhanded by the police 1-ras such as to --:--rarrant an inference of' f'raudulent ir.. tor.:.t. '. - 6 It is indeed ele1:.o:1.tary and co1~1r:,o:-2 lrr10wledge that as rightly submitted by the learE0d :Jtate L.ttorney, a persons intention cai--; be in:fer::.~od from· his 01-n-: conduct. It is not always easy or possible to e:::;t;2:,blish 01"'0'::; intentj_on in isolation from his or her co~duct. I:;.-: .this cas 0, as a matter of fact, tne trial magistrate quite properly believed in the evidence of' P:1 • 4 e.1,.d P:11• 6. This is d1.10 to the well Im.own fact that when the issue as wG.s tr_e case i:n. t::.is ap::..::eal is one entirely dependent on the Credibility of' tho witnesses, the trial court before whom that eviC:011c0 io [;iven is in a much better pooi -tion to jt.1dgo anc~. a::::secs e,:1 t!:-'"e weigb:I; of' such i ,vidence than an appellate court, In this cace• tl-;.elearned ... trial magiot;rate J::cavii::-..::; c0eri tho demoa,2our of' tl1.e ·witnesses and having regard to L·.. o wl::.olo circ'.::.ri,ota:.'lces of tho case, rejected and gave l"easons f'or :::;_c,t bolicvin~ i:r~ certai11. of' the evidence adduced in court L:::.cl,.2.c.i:r:.g t::.:.a t of' t::0 a:,:::;;oJ.lar~t, This I think, he was entitled a1-.:.dw::~s not i:.:. ru1:;c error mc.d misdil'ection as the:. learned de:::'e1:.ce co;."nc.:el cL:b::1i tted. In tl"~is way, thepostion remaiD.ed e.o a cr.:oc-bi0:.·.. of :fact which as fot.mdL~y the learned trial magi.strate that the goods in quGstion~ namely, the statior.:.ery :1ad not boe:.1. c}olo':r0red by the ap_pella.-it f'or. which as noted, l:.e :.-:ad bomc. dL1ly :_)aid. The fact that there was a11. Gl".:doroemer.:.t in tl-.. e ~ocal ::?-urcr-...ase Ord.en~ Ex.~10 il-"l.dicating strongly shoald ~ave boo~ acceptee and considered as sufficient in suppo:i,t ofti::e appella...-;.t I o cJ.aim to havGJ delivered the atationery, m10uld b0 lcoked at in ti:10 ligl:.t of the reot of' evidence~ Irl ·l;t.dsrogard, t7.~ore wao the evidence o:f fW4, the IHlombero ·pistrict 'i-Jator irr~z:~::.'l00r which was believed· and accepted 'by the_ learr,.ed trial hagiztra-ce that on 5th December, 1981 theappella:nt caDe tc, i.:.io (PU4) of'f'ice with the Local Purcb.ase Orel.er :Sx,::. 10 and theinvoice (E,r:1 P11) der.:ia.ri.ding payment of shs • .59,840/- f'or the stationery which :ithe appellant 7 claimed he had left at tlie Parioh Guost Bouse Ifakara, reamy for delivery. From the evi~ence of thio witness (P~.4) i t is shown that as a result o:: ::;·..-.ch :;:"c::ir:;co:.:-:.tatic;:.., payi~1ent was authorised by p-;J, l.i- whic~1. :fact rec<-,1 tod in the issue of the cheque to the appellant -::~:at c.ay ~ Ir: s-..::.c~1. circu,_--:-is tanc es, with respGct, i ti~ould soc,'i,. to :-.,o t~,_at i 1:r. Ifoulo I s contention that the authorisation and endorseoent on the Local Purchase Order (exhibit P • 10) was by i. toGlf suff'icie:.1.t evidence to prove that the statio;:i.ary had been delivered is untainable for as demonstrated, PU.4 effected the endorse□ ent on the understanding and express roprooentatior::. ·0y the ap!,)ellant that the stationary was at tho Parish Gueot House If'akara awaiting delivery. Theref'orep if' a:ftor the authorisation and endorse.:. men t of' the Looal P-...;.rchas o Order exhibit F'. 1 0, and the cheque was issued for p_·_yr::0,:1-t to tho :'.:(Pl:;olla.nt, tl-~eap:9ellant disappeared without delivering the stationery as claioed by the prosecutionp the appellant cannot tal:e advantage of such authorisation or endorsement as proof o:f delivery. On this point 9 I do not accept Mr. Haul0 1 s ::a.:::x1ission tl-:at the lea~ed trial Magistrate errered in his approach. At this juncture i tsho:..:lc.1 be :noted t!-,_at as rightly submitted by the 100.rx:od State Attorney, the appellant's immediate disappearance soon after receiving the cheque for shs 1 .59, 840/ .. is not wi tt~out significance. From the evidence o:f PW.4 and PW.6 it ~-ms sho,-r.:i that after the receipt of' the oheque, theappella::.--.,_-~ wao r:.o r.1ore to bo seen at Ifakara and the alleged .statio;:-.:.o ..~y c.t t~:.o ?arisl-: Gueot I-fouse was no where to be found~ Tho ovic:c:-:cc o:f F'J. 6 f't.:.rther shows that effort was made to t:;:--ace ·:;::.o 2.ppellant at l'-~orogoro on 1 Jth and 14th Decer.1ber, ~ s;c·1 ~~:·..:Jc uas no-t; i.:ie fo:.--,nd until he (appellant) was fir_c;lly -~::.·aced. by the police. This, in my understanding is notthe norr;ml roactior:,_ of' a bona fide business man, Why did the ct::.)pGllar.d; lake to hiding soon after he had 8 been paid for t~e stat~onory~/In ~tatingao, i t is appropriate to hasten to quali:fy at this stage that the act of' hiding by itself is not a:c1. offence or a basis I'or conviction-. Rather, i t is a co,:-~c.~uct which, d.epo;:idir.:.g upon the irmnediate circumstances, sor:10 in:fer0nce relevant to the issue at hand could be made, I:n this case, as can be gathe:t>ed f'rom the evidence, the fact the appellant could not ~e traced for long af'ter he was paid is such a conduct .:f:i.~o □ which an in:ference could validly be drawn which supports the rest of' the evidence against him in the charge preferred. From such evidence as found by the learned trial magistrate, i t ii:; pertinent non to e1m1~1i11c ,1hethe:r- the offence of obtai~i~g by falso ~retences was ectablished? On the evidence as accep-tec and believed by the trial court, i t was Hr. Haule I s subr:iission that the o:f:fence under Gection 302 of tb.e ?enal Code h2.d not been proved. The r0ason advanc0d by Mr. Haulo, loe..rned co1.mG0l was that the false represen.ta tion conc0rrwc1. matters of :fac-t in the future which is not covered under t1:rn law. 1:Ii -th the grea teGt reopect, this submission isentirely without :foundation in law. No doubt,_ the learned Counsol would bo aware of' the .:tact that the definition. of :false :9J:.~etences =i:-s clearly set out under section 301 of' the Penal Code af't0r the amendmen.twhich was effected by Act Ho.13 of' 1980 section 13• Unlike the provision 1,.rhich was previously obtaining prior to this enactment, where the offence of' obtaining by false pretences concerned matters of.' :fact p_,st ar:d preGent only, the present provision is extenc10d so as to ·aover matters of facf both past, present anci. futu:;.~e. In this case,_ the appellflJ.7.t represe'nted .• that he had. tl-:.e stationery await;i.ng delivery at the Parish Gue.st House Ii'akara :for which he was demanding and was paid shs.59,840/-. This as notedt was false infact as there we.a no statio1:.ery of' any dcscript:i.on to be found at the Parish Guoat Hous0 or anywhere else. for that matter. - 9 - That, n0 aoubt was to the knowledge of the appellant when he was making the representation to the Kilombero District Water Engineer (FU. 4). Ee was a~,mre that he die :;.~ot have the stationery at tj::.e ti1:1e P nonetheless herepresented so. With such representation r.:iade 9 there can be no doubt in my mind that such representation was made with intent to defraud which he succeedeed in obtaining the mo;:~oy from the Kil9mbero District Engineer' o o:ffice, In my judg-::1e:1t, the false repre- sen·tation was amply established :from the evidence which shows the ap90llant 1 s representation as being infact false in regard to an existing fact. In such circumstances and f'orti:fying myself with the decision of' ·;;l'le Cot.u-t of' Appeal of Tanzania in the case of Dastan KayanGa and J others in Crimin.al Appeal Ho.47 of' 1979 Mbeya (unreported) whose :facts are on the whole similar 9 I am satisfied that the decision of the learned trial r;1agistrat0 in tr2e case cam1.ot be Caul ted. There was suf':.ticiorLt 0vid0nco upon which the conviction in the :a101~1b0ro caco could bo sustained. The sentence, being tlrn mini;:n.:;.m proscribec. is also to stand. Now briefly on tho Kilosa caoe4 In arguing the appeal before thi.s court :~::, com~ecticn with this case, i t has been noted that :Mr. Haule 9 learned cot.:.nsel :for the appellant invited tne court to adopt the theme of his argu..r!1ent a..'"ld authorities ·which he had ac1var.i.ced while pursuing the appeal in the :iiilombero case (supra), Therefore, he addressed the court vGry briefly but with force;_ Quite properly, he courteously pointed out to the court the main issue in the appeal as one revolving on whether or not the goods had been delivered by ·cile appellant. Ui th this issue resolved i t would tlc.en ·:::ie poscible to exe.mi.ne the establish- ment of the of':feoce of' obtai:::L:::.g by :felse pretences, Like in the Kilombero case, the. f'ncts· as established are not much in controversy,;• -· ·; 0 - It was eotablis~o~ in evido~ce that in July 1981, the Ki1osa District :};!!.cineer (FI. J) 2ad duly signed a Local Purchase Order (Li?O) I'o:;:, an order of Stationary to be delivered by the appellant 1 s firm in the name and style af'orer,1entioned of' Lescrs Tan::;ania 'fype1-·1:ci·;;ers Service Company Morogoro. The order was worth sl:.s. 60, 520/-. As PU. 3 was scheduled to go to Singida for a ser.1inar, a cheque was prepared in advance though co1.. trary to govern.raent f'in·ancial regulations ready f'or payment when the appellant made delivery of the c,i:;n tioriary. As a matter of' fact 9 i t would appear that ti:1ough P1:l. 3 had authorised payment on the Local Purchase Order f'or shs.51,870/- but a cheque f'or shs.60,520/- was issued d-..1.ly . sigr1ed. With tho in.vol ver.~ent of' t::::.e other J co-accused who vrnre acqui tted. 9 t:i:~e ap:;;>ellant collected the cheque from the of:C'icG oi' tho District :Sngineer Kilosa (PW.J). The amount of shse60,520/- :wo.s:.ultioately,..,pa.l:d. ±mb6 :tm.a ae:count of his firm in ad7a:,.ce of any delivo::.~y o:f the stationary~ This is made clear fr01:1 tLe ovic:once of' i?~'!. 3 the e.xerpt. of' which is as :fo1lowoz 11 Isigned in ac".vanc0 be:fore the receipt of' goods becat.~s0 I ,·ms going away to Gingida for a seminare 11 On this 9 Mr. Hau.le has stre~eously argc,ed that as the Local . Purchase Order "';·Tas duly enclorsed as a result of'which payment was o:f:.fected, such, in his submission was proof of the fact that the goods had been deliverec~ by tl'J.o appellant. This argur11ent indeed can hardly hold water as th.ere was sufficient evidence led o::..-::. tJ:;.e point Dhowin.g that under the applicable regula tior"'s p~ .yr:1en-c in advaj:1.ce o:f delivery could 0 not be effected ur-'-lessthere 'iras st:.ch an endorsement with the requisite particulars on t:1.e ~ocnl Purc:-;.ase Order. Tb.erefore 9 as found by the trial maG·istrato the cheque was obtained in advance in order to use i t :for the purchase of the stationery was an un.disputed :fact. Having accepted ·the evidence of' PW .J, 11 the Kilosa District Engin0er, the learned trial magistrate· found it as a fact which he was entitled that the appellant had not delivered the stationery for which he had been duly paid ·shs.60,520/- in advaace by cheque which was issued in the manner I have illustrated. Learned Counsel for the appel.lant illlr. Haule raised strong complaint against the magistrate's acce-tamce pf P:-T.J's evidence alleging that he was an accomplice. This argument was also raised by Mr. Hau10 at the trial where he appeared. Regiettably, I have been unable to appreciate any cogent grounds upon which the District Engineer could be regarded as an accomplice in law in the circumstances as explained. The learned trial magistrate properly rejected this arg-..u:1ent. It was also art,ued by 1-'.lr. Haule learned co1.:msel, that i t was a misdirection on the pc.st of' the magistrate to convict the appellant when he had believed the evidence of accused 2, J and 4 who i·rere charged with the appellant. In this way, IVIr. Haule asserted that the trial magistrate had placed a heavier burden on the appellant which is contrary to the law in cri,::inal easel:). It would be noted that as a restateoent o~ the applicable principle in criminal cases as regards the burden of' proof., Nr, HauJ.els statement can hardly be said to be in error. It ishowever in applicable the circumstances of this case in which, as a matter of :fact 'the trial magistrate ~ade a proper ovalution nnd analysis of the evidence following which he accepted :i.t without in anyway casting a heavier burden 011. the appellant as claimed by the learned counsel.., Iii.tr. Hnule, lei:lrned coUJ."l.sel has aga;µi argued that it was wrong i:;. l 2w :for the t1~ial magistrate to have acquitted accused 2, J and 4 a:icl at the sa1~1etime to c~nvict 1 the appellant on sir.1ilar evidence. '1i th respect, I do not accept this argutll.ent. It is cormnon ground that in a trial, it does not follow automatically that in rejecting certain aspecta of' the evidence of scme witnesses 1 necessq.rily there - 12 - has to be a rejection of the evidence each and every witness or accused peroon·. In this case, the learned trial magistrate on examination of' the evidence as a ·whole, gave reasons for r0jecting or disbelieving certain of the evidence and was convinced that a case had boen mo.do out against the appellant on the offence o:f obto.i:2ing by false pretences. Forinstance, in the· case of the 2nd accused, Abdallah Ngorome1a, the learned trial magiotrate clearly gave ronaoris in ~is judgment at p::::ge 10 for disoelievir::.g hir.1. At one stage he is (2nd accused) shoim on :i.. $COl ds oto. ting to ?;f. J tho. t 1 1 the appellant had not delivered the statio~cry and at come later stage the very person Ul1.l 0Gc:.. vodly., tootif'iod c~·,:cictly t:-:e opposite of 1 1 his previous teotiuonyo · Thio, itohould be no·ted, cannot be true both ways. Hu muot bo a lier o::-.:.o way or Jche other. It was therefore p1 oper :for tho trial mo.eiotrate to reject 1 such evidenco cor.1ing a.a it did f'rom a person who 1-10.s as shown, not f'ree :from teliing lies. Yet, a lier tlic1-tgh he may be, according to th13 :findings o:f the t:i. iul ccurt, he was not 1 suf'f'iciently proved to be connected with the charge at hand~ Consequently, he was acquitted which, :r think it was not in error in law or :fact as the learned o ~ c l would·..want the cou:r:t to hold. On an individual analysis o•:f tho evidence, the learned trial mag:l.,at.'i. tt-co concludecl:- 1 1.&',I'he :fact that the 1st accused (appellant) has so far ~ailed to mo.ke such delivery of' the statio:;.1.ery and th0 f'act he now claims to have r:1ade such deli very, would show that the 1st nccuood did not intend to deliver the said Sto.tionory to tl:.o o:ff'ice of K:lloso. District Engineer of' ·;:rorko when he collected the said Shs. 60,.520/=. ii'or -that reo.scn, theraforo, he obtained thisLlonoy from this o:f'fice by f'alse :Pretences~ As already indicnt0c1, tl:.o a::-pollc.nt I s de:fence was that he had delivered the staticr:ory. fie o.lso relied on the Loca1 Purchaoe Order, (2~:.:(-' ) the endorsenent o:f ul".dch, in ;::.isclaim 1 supported such clol:1..very., - 13 - trial magistrate a.s beir.:.g nutrue. It was therefore, rejected. The trial magistrate alco r2.jt)c·ced E1e learned couns0l' s submisGion that i:f deliv0ry o:Z' tho ctntio:nery ·was believed not to have been eff'ected 9 t:10 r:iattei~ c:'loulcl be treated as a Civil debt againot the app0lla:Lt. Such rejection was based upon the fol~owing reasoning oz the learned magistrate:- 11The1st accuse.d has all along maintained that he h~s delivered the ctationery 9 when, in fact 9 he has not done so. He did not even reply to tho letters (exhibit P.7 - exhibit P.12) iT-J.J wvote him to det:iand the delivery of' the goods ~,, • • • • • . • . . • • It ,-rould appear while receiving the cheque of shs~60,520/= the 1 r::t accused was intending not to deliver the stationery. 11 Up to this stage 9 and from such facts as I have endeavoured to out.~_ine 9 t:1.ore can bo no doubt that the 1earned Principal Resid01-it l11agistrate scrupulously analysed the case in his ·well reasoned j,_._dgment of a.."1. ot:1erwise intricaJce case. I-Io,.revcr P as . shown fron: the evidence and as found by the lea:;:-:acd trial r.12..g-iotr2.te, this is a case in which the appellan-:: had failed to ma1,:e delivery of' the stationery for which he had been paid shs.60,520/- from the office of the =a1ocn District :2:::igineer. The: appellant claimed to have eff'ectea the delivery. Effort was made to have the appellant deliver the stationery by physically sending 2nd accused to Morogoro to trace the appellant as well as by w:.·iting letters (exhibit P.7 - exhibit P.12) to which the appe1lfu-it did not bot::er to respond. On _such evidence as foc.::6 "oy -:;'..:.0 l.c,::~r::i~d trial r:1agistrate the next pertinent quecticn for c::;:.·::.c:;..Coratj_on in t~-iis appec:!.l is whether the of:fe~-icG of' 0·0t.:d.ni:.1.g -::,y fc:.lse pretences could properly be suctaL:e(~.c ·u:.:.:::o:.~ 3oc-'.:;ion J01 of the Penal Code, - 14 - 301. ::_~:):;,:i:;:_•o sentation made by words, writing 11 1\.::.,::;r or conduct of a matter of fact or of intention, which representation is :fa15e and the person making it knows to be :fase or does not believe to be true is false pretence," Under Section 302 of the Pene.l Code, Obtaining goods by false pretences is also defined as.follows:~ 302. "Any person who by any fal.se pretence and with intent to defraud, obtains :from any other person anything capable of being stole:n. 9 or induces any other pers-on to deliv0r to any person anything, capable o:f being stolen is guilty of a misdemeanour, and is liable to ir,1prisonoent :for seven yeare:;," From the difinition o:f false pretences as set out under section 301 of' the Penal Code, it is quite clear that for an offence to be establinhed, the es::,ential. ingredient are:- (a) representati..en, (b} such..·representation must be :false in ~.a.c..t. ( c) such fnlso re:.:,rcsEmtation 171ust be to the knowledge of the one making it or does not b9lieve it to be true. (d) ac a result of such representation the geode in questio~ are obtai~ed• I:n this case, i t b.(·_::; bcon sb.own on evidence that :f'ollowing :ft-om an order :for the purchacc of' the stationery by the office of the District ~nginoer Kilosa the cheque was prepared after which the said cheque (exhibit P.4) was handed over to the appella.,-,,t by t:rn 4th accused to the appell2.nt, It is not quite clear on reco:.:'d as to the exsc.t representation made by the appall.ant prior to the issue of the cheque, It is indeed undisputed that on the basis of the Loca1 Purchase Order which had been authorised and endorsed by P::l • .'.3 the appellant had submitted a bill f'or the amount fol.lowed by the process as described vnLich ultimately culminated in the issuing o:f' the cheque a...~d paynent of the amoUJ..,_t of shs.60,520/- to the appeUant•s :firm, Tanzania T-ypewr:i.ters Services Company Morogoro. - 15 - This was in advan.co of an.y c10livory of ti-:c stationery. On this basis, the eviclGncc ao adduced and accepted by tho trial court, the nature o:'.: t:1.e representation made by the appellant· resulting in the issuance of the cheque being unclear~ i t j_c doubtful that the offence ui1.c:i.er section 302 o:f Obtainir~g by £a1se pretences vas estab1ishedi, T!1.e essential ingredients of the offence as defined are lacking• ~ith respect, i t was erreneous on the part of' the Principal Resident Magictrcte to conclude that the offence had been ectablished by tho :fact that the appellant had failed to deliver the statio!lary and did not intend to make ouch deli ver-.1 a.t t:.,.o tiao he was issued with the cheque for ohs.60,520/-. On the other hand however, as indicated 9 these same :facts as found and accepted by t:·10 trial nagistrate abundantly show that the appellnnt was paid by cheque (exhibit P.4) shs.60,520/- Zor the stationery ~n1.ich he did not deliver. That the appellant claims to have delivered the stationery which was also :found as untruthfuln Under section 305 of the Penal Code it is provided:- 305. Any person who - (1) in incurrine c:.n-J debt o::::- liability obtQi~s credit by a....~y false pretence or by r;1ea,_,.s of ar1y other :fraud is guil tjr of a misdeoeanour, and is liable to im:,?:1.~ison,,1e:n.-c for five years. Thus, to my understa:.1di:1.g 9 the situ2,tion as an.2..lysed, when 1ooked at in the lig~t of this provision resolves itself as follows• That there can be no doubt that t"i.1.e appellant having been paid the money sho.60,520/- frorn the Office of the District Enginnel" K:Llosti. in tt;.e circumstancl!)s as Det but, incurred a debtl Secohdly~ the fact that the· appeliant did not effect any delivery of the stationery as found and not only claims to have delivered t"!:-~o otationery· but also did not bother to r respond to theletters of deQand are indicative and proof of f'randulent intention on t-:::Le part of the ap::>ellant in the tran- saction• - 16 - To my mind, it 0001:1s cryotal clear that t·~10 ci:,:,cumstan.ces of the case are such that it could with a considerable degree of certainty be stated that the appellant incurred a debt 0£ shs.60,520/- by £ran.dulcnt □ eanse This is all the □ ore manifest from the appel.la.... tc subsequent conc:.uc:t of' tak::Lng advantage over ti:Le endorser:ient on the Local Purchase Order indicating receipt of the goods w'hich as chovm was done in order to facilitate th0 isouing of' th.0 cheque and alGo by claiming to have delivered the goods which is false no doubt, to his knowledge. Consequently, as I have indicated, the essential ingredients 0£ the offence under oection 302 of the Penal Code 0£ obtaining by false pretences were not brought out, under the evidence, while at the;eQQJetiwe,. there is no doubt that an of'fe:noe under section J05 ( 1) of'_.•the Penal Code has, as noted, clearly been established•- In the result, involving the powers rested in this court under section 319 of the Criminal Procedure Code, I would set aside the conviction in this case under section 302 of the Penal Code <4~d substitute in lieu thereof a conviction under section 305(1) of the Penal Code for the offence of incurring a debt by fraqd. The sentence of five (5) years imprisonment is set aside and substituted for one of four years imprisonment. The order o:f compen:::iation for shs.60,.520/~ wouJ.d remain undisturbed.·. Final.ly, one observation on the drawing of the charge 'to which the attention of the learned trial mag·istrates is d~wn, In both the Kilombero and Kilosa oases, it ~s note~ that in the particulars pertaining to the counts which are the subject matters o~:' the a9peal; it is indicated that the appellant falsely obtaL'led cash sho,.60 • .520/- or shs • .59,840/-. ··- 17 - This was not cor:;_~ect for as c1..rnply dcmonstrat0d in the evidence, the appel:ant was ~ct ?&id in cash money but it was by cheque. The correct position is to :.:c:-:tion shs.60,520/- or 59,840/- as the case may be. In the result, to the extent indicat0d in regard to the substitution and veriation of' t;:10 conv:Lction. and ·sentence, the appeals are otherwise dismiss0d. SGD. D. z~- LUBUVA JUDGE 11010.1985 Del.ivered in Chambers at Dar es Sal.aam this 11th day of October, 1985 in the presence of Mr. I-Iaule for t:1.e Appell.ant and Miss IChaday for t::10 :a.epublic. , SGD. D. z. LUBUVA JUDGE DAR ES SJJ..,.AAJ!J. 11th October, 1985. Certified tr:..,e copy of' the original~ :-n::.:;;:-I CO·JT?.T 03' TLN .J,.I'TIA