19770502 TZHC Arusha

-0- -7 ...i.' 47

IN THE HIGH COURT OF TAUZANLA

AT ARUSHJ

APPLLLTE JURISDICTION HIGH COURT CRtW11NAL APPAL NO. 32/7 6 c/F 48 OF 1976 ORIGINAL CRIMINAL CASE NO. 341 OF 1975 10 OF THE DISTRICT COURT OF ARUSHA DIaTRIC AT ARUSHA Before: Mrs. E. itunuo ----- -- - --- Resident Magistrate ONESMO ALPHAAYO SALEMA)') ••• PLLTS PRIMI NGUNU 1INABO (Original Accuseds) versus THE REPUBLIC ........ ............. RPONJ)ENT (Original Prdsecutor) 20

JUDGMENT Jonathan, J. In the district court the two appellants whose petitions of pea1 are consolidated were charged jointly with another with conspiracy to defraud, stealing and destroying evidence. The first 30 appell\ant SALEMA was in addition charged with fraudulent false accounting. The other accused, to be referred to hereinafter as the 3rd accused was aoquitted of all the charges, but both the appellants were cànvicted as charged and each given a substantive term of 5 yrs. imprisonment. From their convictions and sentence they have appealed to this court. Representing SALEMA at tue hearing was Mr. D'SOUZA while Mr. MAWALLA argued the appeal of KINABC. It was the prosecution allegation the three accused on the relevant day conspired to defraud the IThtional Bank of Commerce A0 at its Uhuru Road Arusha Bx'anch of the sum of Shs.32,42O/= and that they infact proceeded to steal this money. It was also claimed that they destroyed cheque No. Zi 039520 of the said complainant Bank against which they had withdrawn the sum of Shs.32,420/=. As against SALEMA alone it was the further rosectition case that, he as cashier of the complainant bank a faisfied a p3Tment voucher by assigning account number 53309 t0 the afore mentioned cheque in place of the correct account number assigned to that c1oque which was 53903. 0 SALEMA at the relevant time was a cashier of the bank posted to its

Uhuru Road Arusha Branch. There is agreement on that day, July 2, 1975, he cashed cheque Number Zi for the sum of Shs.32,420/= to' someone and that tht cheque had been taken out of a cheque book issued by that branch of the bank to KILBC, the second appellant. SALEMA recorded the transaction in his payment sheet for the day noting that it related to account number 53309. It however transpired that this account had been that operated by a couple called Mr. & Mrs. Joseph and that it had since been closed at that branch. That is to say, thereforo,.that there was in feet no fund to meet the 60 cheque. The account of KIN4BC was itself then over—drawn to the extent of Shs.3/05. The cheque together :ith the payment sheet seem t0 have then been passed on in the normal way to what is known as the Waste Department of that branch. There, the -particulars of that transaction were 'recorded on the •ase Shoet. This unlawful transaction it seems could have been discovered in the Waste Depart- -ment for the balancing is done there, but it did not make any report about -it. It was in the Machine doom LJiLy. 5 P.W.6 - ..... 48 SEDUTE in the course of comparing the waster sheet with the corres- ponding vouchers of the Current jccount discovered and exposed the big fraud. The cheque should have been found intact but the witness found it missing. He discovered also that it had not been posted on

the ledger. It must have disappeared, he said, either in the Waste Department or in the current account Section. The foregoing facts as I have said are not in dispute. SLEMA is allged to have had complicity in the fraud firstly on account of failure on his part to comply with the normal procedure for making 10 payment on cheques. Such procedure required that, a customer upon presenting a cheque to a teller or cashier of the bak the latter had to pass it on to a cheque clerk for comparing the signature on it with the specimen signature of the account and for checking if the customer is in funds for the amount/intends to withdrat, .ocording to F.W.3 GUTTA who normally worked in the SecattyDepartment but who on the relevant day was the only cheque clerk, if the amount being withdrawn is less than the sum of Shs.1,000/= he would r'tarn it to the relevant teller for him to make payment. If it however exceeded that figure he would refer it to the officer inchar;s of the current 20 account who would have it ultimately returnee 'to the teller. The witness would however not remember seeing the relevant cheque. P.W. 4 BHMJI MAKTT1',_,',,TA was then the officer incharge of the Current Account. according to him he was achcrised to approve obe,ie for not more than Shs.10 2 0001= and that for greater sums then that the cheques are referred to the manager, or the assctant manager or

the accountant. He, too, would not remember dealinf eith the relevant cheque. It is common ground that SLEMJ. upo.:i 'eing interrogated told 30 P.W2 LET0, the manager that he had recelvd th.t cheque from an Indian customer after it had alreadti been aathcrio:d for payment. It is therefoe contended for the Republic t1nh the appellant by accepting from a customer a cheque which h','J been authorised and making payment on it violated the normal coo Jar'e. There was also evidei"ice of the appellant making contradictc': ;ta'tements to which the trial court appears to have given considerable weight. It seems he was interrogated first on July 8, 1975 ,n.l sub-inspector CHACH.A in the presence of P,W.2 and •J,7. There, as already stated he appears to have said that when the ohetie was first presented 40 to him by the IndIan Customer it had alrad7 bcn outhorised but he could not pay it as he was not then holdin coetficient money, so he referred him to the current account. On Julxy 9, P,W.l at the Police Station he recorded the appellant's sta'ternent In this exhibit the appellant appears to have said, inter, alia, that when the cheque was first presented'i't did not have the signature of the authorising officer and for that reason, coupled with the fact that he was not holding sufficient funds, he referred the caeacmer to the current account. Thre is however some doubt if P,tJ.l

recorded the statement faithfully and accurately for, in his evidence he said the version 50 the appellant gave on the second day was similar to that of the first day. The damning aspects on the statement in any case were not specifically put either to the recording police officer or to the appellant. Indeed, it does not even appear 'to have been read out for the benefit of the appellant. KILB0 is implicated' in that the cheqae that was used had been issued to him. P.W.1 on July 8, visited Ghe house of this appellant. He was present and upon being asked he prchnc the cheque book out of which the relevant cheque leaf had been ;acen. His explanation for the missing cheque was that he had previoaaly loft that cheque 60 book at the house of the 3rd accused and th,t hcn he had gone back to that house for the cheque book on the next he had found that leaf missing. - -- -it flpw ..... 49 The appellant then called the 3rd accused. riis accused denied however that he had torn off the cheque leaf frorci thet book. The foregoing was the rosecution case. S-I,%LEMA in his evidence said that the relevant day was pErticolarly ba-7 for him for he had to operate both the savings and current ccc ouno0 That day at about 11.00 a.m. an Indian customer prese:ited to Iiiir, a cheque for shs.32942 0/ which had already been authorised. He however ceked him to present it to another teller as he was buoy

TnEt cueeer returned to hjjj counter about half an hour later saying the oiher tellers did not nave 10 currency notes of Shs.1001= to make the payment. He then received the cheque and upon noticing it had already beauthorised by P.W.4 he paid him the money entered the transaction on the payment sheet. He then had the original payment sheet and th cheque passed on to the Waste Department. He retained copy of the Payment Sheet which he later made available to the police as th original, like the cheque, could not be traced. The defence adduced evidence that, subsequently to the present incident there had been two similar incidents although SLEMA had been suspended from service. P.W.2 when recalled as a witness for 20 the defence of S4LEMI said that on September 19, 1975 a cheque for the sum of Shs.15,800/= had been presented to a teller who had recently been transferred there. It puroortJd to have been duly authorised by P.14.4 MIKWINI. It seems the teller would have paid on the cheque had it not been that the amount as expressed in words differed from that in figures, whereupon he had to check with the authorised officers, hence the fraud being discovered. The impostor had in the meantime slipped out to avoid arrest. There was then the evidence of D.W. 2 SILEHE that on September 15, 1975 a cheque for Shs.35, 000 /= which appeared to have been authorisod by P.W.4 was 30 presented

to him by a customer. He made the payment and passed on thecheque to the Waste Department. Upon the forgery being detected that cheque could however not be traced. KIN4B0 in his defence said that bé.had loft the cheque book at the 3rd accused's house and that, upon being alerted that his bank accounthad a query he went for the cheque book only to find the relevant leaf missing. The 3rd accused's explanation to him was that hehad given that cheque to one Tarimo. The 3rd accused taking his turn in the witness box admitted he and PINIBO were friendso He also admitted that previously to their arrest KINABO 40 had claimed that he had left his cheque book at his house and that when he had later gone there for it he found a cheque leaf missing. He however denid any knowledge of the cheque bock. KIHIBO called a witfless, D.W.l whose evidence was that he had heard the appellant complaint that a leaf was missing from the cheque book after he had left it at the 3rd accused's house and that this accused in reply had said he had given that cheque to one JOSEPH TIHIIoC. The evidence in regard to KINIBO may be considered first. The learned resident magistrate in her judgment convicted him because she found contradictions in his evidence on the one hand.his Police 50 statement on the other and also on account of his failure to report loss of the relevant cheque leaf to either the maneger of

the bank or the police. The contradictions are in regard to whether or not he had entrusted the cheque book to the 3rd accused end whether or not the 3rd accused had given him the christian nmeof Tarimo. The trial court spems to hold him as hLiving stated in the police ..t statement that he had entrusted the cheque book to the 3rd accused. That is however not quite correct. For, he state the 3rd accused saw him keeping the cheque book there. Is for the ctherinconsistenoy the police statement does show him as having given TarImo's first name, 60 / cc Joseph but Pk •.....• 50 as Joseph but in his evidence he denied the 3rd accused mentioned such name. It is however pertinent to note that, this statement, like that of SALEMA O was pat in so casually by the prosecution without drawing the appellant's attention to the apparent inconsistencies it bears with his evidence0 Turning to the failure to report I think undue weight was given to this. According to the appellant he first knew of the missing cheque when someone told him the bank manager wanted to see him, whereupon it oourred to him it might have been something to do with his bank account, hence his 10 having to look up for the cheque book. He did not then report that a cheque leaf was missing, but I think some allowance was to be given that it was not long thereafter before he was arrested. As submitted by Mr. Mawalla and

conceded by Mr. Mwale for the Republic, the evidence with regard to IH,00 was too thin for a conviction. At best it gave rise to the suspicion that this appellant may have had a hand in the fraud0 There may be weaknesses in his defence but these could only have been used to buttress an otherwise strong prosecution case, that is to say, the shortcomings were to be turned to as providing the final assurance of guilt and ' 20 were not themselves to be the basis of 'c conviction. Accordingly, KINABC'S convictions are set aside together vitr the sentence and it is ordered he set at liberty if there are no other lawful reasons for detaining him. The case against SALEMA, is mainly that he did not follow the ibrmal, accepted procedure in dealing vth the relevant transaction. I take it that the bank officials in their evidence outlined the procedure as applied at all other branches of the National. Bank. of Commerce and were not confining tkiemsleves to that of the complainant branch. The appellant is said to have breached 30 the procedure ':when he accepted the authorised cheque from the castomei' and 'then paid him. 'It is not clear , however if this rule was rigidly enforced at this particular branch, where it would seem the appellant had only recently been traitsferred. There is uncon- troverted 'evidehce which the lower court gave little or no consi- deration, that there were two

oocassions subsequently to the present incident when a customer upon presenting what purported to be a cheque duly authorised for payment to a cashier, was paid without any further ado. That can only suggest that there was some laxity in the enforcment of the rule nd that the cashiers, especially 40 those recently posted there, had not been made to know the rule was sacrosant and that it was never in their discretion to depart from it. The learned resident magistrate correctly noted that P.W. 4 was not authorised to approve payment in excess of Shs.10,0001=, but it is not suggested that the appellant know or ought to have known this. The two other instances of fraud suggest not all the cashiers knew F.W.4 was not empowered to authorised payment of more than Shs.10,0001—. The lower court, as already noted, also relied on inconsi- stencies in the statements of the appellant. These as I have said, 50 however, were not adequately proved, and ho that as it may, as rightly argued by Mr. D'Souza who cited to me the decision of/court of Appeal in Raphael Muya v. Republic 1953 20 ,d.JgC.A. 226, their inculpatory effect cannot safely lead to an inference of guilt only if there is vIa substratum of evidence .... cc as to create an independent primafacic casel? against the appellant. This is a case, of circumstancial evidence. The facts as a whole, including such inculpatory facts as there

are do not in my view irresistibly lead to the guilt of the appellant, it is not a remote possibility that other persons 'may have conspired independen'Gly of the appellant 60 and 4,knownt0 him to steal the money. There is no dispute that - -- •..... 51 incidentally, that the appellant had no access to the Weste Department where the cheque seems to have mysteriously disappeared, and it is to be concluded some person with access to that department had deliberately destroyed the cheque to cover upthe fraud. It is unlikely that this was perpetrated by one person only but it could not be concluded the appellant was one of thb conspirators. In the result I find it unsafe to uphold SI4LEi4'S convictions and, like those of KINBO, they are hereby 10 set aside together with the sentences0 He shoiild be set at.libety if there is no other lawful reason for confinin him into custody. Dlivered in open court this 2nd day of May, 1977. 20 P. M. JO1,jTHIH 2

JUDGE I hereby certify this to be a true copy of the oriinai. DISTRICT TThTISTRR R[JSHI.. PTJ/RA. /