19701106 TZHC Mwanza9

IN TIlL HIGH COURT OP TdlZLNIL LT IIL7II'TZA Lppellate Jurisdiction 1 7i] k OPJIIAL Li-PULL NO, 471 OP 197 (Oripinol .j'1jp1 Case No. 166 of 1969 of tho district court of Kabindo bciore Be d. IR?/dCiiJO JiISC., C.isti'ict ncristrato). lIUJTLL s/o l..i[JDTL . , .APPELLLNT (orIGIIlIL ccioro) versus - LhR BEPUBLIC . . . • • , . . . . . • . • .REEPONDEFT (orIG•IITI1 rcsrcuo) CE1RGE:- 1st count - Ctcclin0, by person onploycd in the ub1ij povio c/s 270 and 265 of the Penal Cod •; fo T - , 2nd count - Pororv c/ss 333 and 337 of the .Pe4-e-c--- 2 5 NOV 197 JTJLLlLNT - DAR ES SAL' .ELKI11I:Y, A3.J. - The appellant Was charged with and convicted for sterlinC by porson • euployed in the public sEriOe contrary to sections 270 and 265 of the Penal Code on the firèt count and for forory contrary to sections 333 end 337 of the Penal Code. He was sentonôed to two years on the fcreior count, and twieve uonths onthe latter count :& These torus were ordered to be served consecutively; In addition he was ordered to soffcr twty-four trokos of'corperd punishueñt and ordered to refund .200/- to llrJOIoa crowers Co-operativô Society He is now appedir; oainst conviction, sentence and orders; The appellant was enployed by the NCona Growers Co-operative Socic (hereinafter referred to as the Society) as a Secretary. Besides his clutiec in respect of his society, he was also accepting aeposits collected by local rate collectors for keeping in the Society's safe; Whenever a local rate collector deposited noney with him he would be issued with a receipt, and the raonoy will be kept in deposit until it was collected later by the dopositbr or soLiebocly else on his behalf upon production of the original roccipt'o It was established thçt the appellant would prepare a paiont voucher upon receipt of the receitpt he had issued, and the receiver os well as tic payer would sign on the payne-nt viucher before the receiver takes thu cash, In this Case it was not in dispute that Charles Luhurgu (P.; .2) deposited S.55/ ith the appellant on the 10th Juus 1969 ud he was issued with a receipt No.73522 (ExhIbit B). A1 on 23rd Juno 19692 he egain deposited *ith the appellant a sun ofs1125/- and he was is sued with receipt No.7325. The date of this receipt was in fact altered to 13th SopteLaber 1969. The origiiaclreceipts were produced as ibthibit P and P1. In the afternoon of 23rd June, 1969, Charles Luhu.nigu handed over the originals to his asèistant Mtwde s/o Ewicnya (P.11.3) for collection of the deposited noney. Lltwolo said that he received the twh receipts and went with the District Council clerk to collect the money. lie said he handed over both receipts to the appellant, who then prepared payment vouchers Nbs.53649 and 53650 (Exhibits B & c) and collected a total aura of .l180/- from the appellant and hcñded jamorm it over to the District CouncIl clerk. Idoigula Chayo (P. 1, .4), the Chairnan of the Society, re cO that he had seen Mtwale rec dye one lump sun of b 61180/-. fron the appellant on 23rd June 1969 on payment vouchers 53649 and 53650. Ci the - other hand, the appellant said that he had nude double payment of h0110 0 - to Lltwele in the presence of the cheirinn of his society on the 23d Juno 1969, and he r.ied on payment vouchers llos ; e 53648, but Lltwalo denied thie end denied that the signature on 53643 was his. The choirnan (P.17.4) denied that he had authorised double payment of s1100/- to htwrie ,cnd he said the signature j3.earing on 53648 is not his Ilxfaert evidence showod thtt the signatures on exhibit payment voucher No 53643 was sinulatod On this evidence the ldnrncd urgistrtte concluded that the apje1lant had only gion one lump sun of 21l3O/- - vido pay.acnt vouchu No53649 and 536501n the presence of witnesses end that he had not paid the other sun of G3 61130/-- on payment voucher N66.53643. He hola tno appell ant forged the payment vouche No 53643 when the appollInt' a acOc.unt s were checked he had a shortae of .1100/'-. of Society s none. 0 These findins of fact bade by the leexncd:iq - itratc were not attacked on appeal. The evidence is lore than enough to support the convictions of the appellant on both counts. However, the learned counsel who appoexed on behalf of the appellaxrb said that there was no evidence to show that the society was a re4torod no so as to brine it within the aabit of the Iiininur2. Sentences Let. He KQxXx said the learned uari -trate erred in inposinr a sentence of two years and t%nty—fôur strokos'. He, relied on th case of ASI s/c Lb'JA T 1967 H,C.D. No.357 The learned State Attorney conceded that there wa, no evidence to show that the society in this case was a rofistered one. The learned cOunsel argued that the sentences were contrary to prnciplos of punishuent He said the lenmed na,istrate ordered the sentences to run ?consecutive lyit and this was. oontrary to the practico as laid doi in the case TTINATO TOTINATI LIAITGISTO v R'.(1967) H.C.D. No. 154. The learned State Attorney conceded thatit was iiroper in this case to order the sentences to run consecutive1y Hcwevcr, he suCcsted a sentence of two years was not c;rossly excessive.. I erree that there was no evidence to show that this society was a re'istered one, and therefore the provisions of the Liiniuun Sentences Act do not apply I also cannot see any reason why the learned aaistratc departed from the usual practice of passinG sentence Icexrnot see any justification for nekina the' sentences run consecutively. Beaini; in mind that the money stolen was co—operative ocioty' s money, thouh there was no evidence that it was re;istered society, that the appellant was a first offender, d the &iount is so exhorbitaxit, the sentence inposed should not be to lenient In my view, the ranre of sentthothces in this casO shcj. not be vastly different from that of theft froh a registered society. I therefore quash and set aside the sentence on count one add. substitute thoref or a sentence of eighteen menths without strokes The sentence on cotn: 2 is adequate, but is ucde concurrent with the sentence of 13 nonths' I do not wish to interfere with the arder for compensation as iV is justifi by the evidence As a resuJJ. the appeal adcinst conviction is dismissed but the appe:.:i 1;inst sentence is a1lod to the extent indicated 9 1)eljvcrod in Court at Idwanza on 6th November, 1970; 7 7 (z. N. El—I d ACTING JUDGE;