19740821 TZCA Dar es Salaam

\ IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM HIGH COURT CRIMINAL APPEAL NOo 92 OF 1974 (Original Criminal Case Noo 2134 of 1973 of the District Court of Dar es Salaam District at Dar es Salaam (Maktaba)) Before: S.M. Lamky (Mrso), Resident Magistrate. SELEMANI MBALANGE 0 0 0 o o o o o o o o o o o o o o o o o a o o o o o· e o o o o o • e e o APPELLANT versus THE REPUBLIC O O O O O O O O O Ct O O O O O O t, O O •••• 0 • 0 0 0 0 • 0 0 0 o, 0 0 0 0 •• RESPONDENT CHARGE: Stealing as a ·servant c/ss 265 and 271 of the Penal Code. JUDGMENT BIRON J. - The appellant was convicted of stealing as a servant Shsol50/- the property of the Dar es Salaam Motor Transport Company Limited and he was sentenced to imprisonment for three years. He is now appealing. The undisputed facts bf the case are briefly as followo The appellant was an employee of the Dar es Salaam Motor Transport Company Limited, hereinafter referred to by its abbreviated form of D.M.T., at the Kurasini Depot, and at the material time he was _ working in the section dealing with the hiring out of buses. On the 23rd August, 1973, one Optatus -K.; Ndimbo (P.W.1) came to the appellant in order to hire a bus, which he apparently wanted to convey mourners to a funeral. The appellant told him that the charge would be Shs.75/- per hour and asked him for a deposit of Shs.150/-, which sum Ndimbo handed over. The appellant told him that as the cashier was away he could not give him an official receipt and tore out a page from a_ memo book and wrote thereon to the effect that he had received from Ndimbo Shs.150/- as a . ' deposit on the hire of a bus which was to be taken out that day. This receipt w~s produced _as Exhibit 'B'. It is also stated on this memo receipt th~t ~s the officer concerned was absent, an official recei~t could not be issued. The appellant however· did not hand in the Shs.150/- to the accounts section1.____as he should have done. ~ Afte~ Ndimbo had used the bus the driver gave him a form to sign and he noticed on the form that the bus had been used for one and three quarter hours and the charge was Shs.131/25. He was therefore entitled to a refund of Shs.18/75. When he went to the Depot to claim his refund, the officials he saw~knew nothing about the matter, and the appellant .was away on leave. He was therefore told to return later. He eventually received a demand from the D.M.T. dated the 6th October, claiming from him Shs.r31/25 for the hire of the bus. This was produced as Exhibit ' ' 'D 1 • He went back to the Depot and showed his receipt written on the memo, Exhibit 'B', but as he had no official receipt he got no satisfaction, the appellant apparently had not then returned from leav.e. .., ~ oeoo2 -. , \ .., :\,. . " .• . T _, Some time after the appellant returned from his leave - he had twenty-eight days leave - he was transferred to the Msiinbazi Street office of the DoMaTo Ndimbo was still pursuing his claim for the refund of ShsalB/75 and the DaMat. had not received, ac~ording to their records, the Shsol31/25 for the hire of the buso Investigations weFe aet afoot, and eventually the appellant was arrested at the Msimbazi Street office, where Ndimbo came with a police officer and identified the appellant as the man who had taken his deposit of Shsol50/-o The appellant elected to give evidence on oath and stated that he gave Ndimbo the temporary receipt, Exhibit 1 B1 , because the cashier was away and then afterwards he did not hand in the money, because he waited for Ndimbo to come, as he had told him to do, but as he did not turn up, he took no further action, apparently awaiting his ultimate arrivala The learned magistrate did not accept the appellant '.s explanation and convicted him of stealing the Shsol50/- which he had received as the deposit on the hire of the bus a From this conviction the appellant is now appealingo The first ground of appeal as laid in the petition of appeal, drafted by counsel, is:- "(l) That the Learned Resident.Magistrate mis- directed herself in convicting the appellant in the absence of any evidence of stealing by hima"a It is therefore necessary to examine the evidence in detail, and I propose to do so as well as I can as the proceedings are a little confusing, stage by stagea It can, and I think it should, be accepted that the appellant did not hand in the Shsol50/- on receipt to the accounts section as he should have, because the cashier was away at the timea But he himself said in cross-examination when giving evidence, that the cashier was present on the following day, when he could, and should, have handed in the Shsol50;- so that an official receipt could be issuedo However, he says he did not do so because, having told Ndimbo to come and see him, he was waiting for him in order to give him the receipt personally: to q~ote him verbatim:- "So I thought I should wait until he comes when I shall detain the receipt from him for Shsol31/25 actual paymento This would have saved the usual long processo It was because I was expecting he would come on 24a8.73 that I did not mind keeping the money rather than the receipto I do not think that what I agreed with P.Wol (Ndimbo) was in contravention with the company's .regulations."o Pausing there, the appellant's excuse in not handing in the money on the following day when he himself admits the cashier was in attendance, is lame in the extremeo At some stage the matter.came·before Jacob Cogogwe Aihiyo (P.Wo2), who described himself as a Credit Controller and whose duty it was to receive and process the invoices for the hire of the buses after they came from the accounts , section, and he did see an invoice which showed that a· bu.s had been hired to Ndimbo and the,hire charge was Shsol31/25, And it was written on the invoice 'deposit Shs.150/- 10 But as . .,,,...,._... there was no official receipt to be found nor the number of the receipt on the invoice, it was apparently he who caused the demand for the Shsol31/25 to be sent to Ndimbo. The next stage is that when the appellant went on twenty-eight days leave, he could and should then have handed in the deposit of ShsolSO/- he had received and also the relevant invoices, which apparently it was his duty to prepare, although I am not quite certain on that scoreo He however, did not do so~ After investigations had been set afoot, the appellant wrote a letter addressed to the Chief Accountant of the DoMoTo stating that there were some difficulties apparently in obtaining hire charges and handing in deposits, and offering to repay any moneys received by him for the DoMaT ■ As remarked by learned State Attorney, this letter in effect amounts to confession that the appellant had retained the moneys intended for the D.MaTo, including the ShsolSO/- deposit he had received from Ndimboa Although, in so far as I am able to ascertain, this specific transadion concerning the hire of the bus to Ndimbo is not specifically set out in Exhibit 1 C 1 1 it is in another document produced as Exhibit 'E 1 which bears the signature of the appellant, and amongst other irregularities, there is specifically expressed an item Noo4 whj_ch .t:-eads: "Optatus Ko Ndimbo, Invoice No.4164, hours 1.45, deposit 150/-, refund l8a75''• I am inclined tio agree with learned State Attorney that this in effect constitut~s a confession that the appellant 7 whose defence all along had been that he had kept the money in a drawer and had left it there when he wen::: on leave, in fact used this money belonging to the DoMaT ■, which he subsequently offered to repayo The appellant in his defence in court stated that he all along kept the money in his drawer and he still had it ~ith him in court when he appeared at the trialo In arguing this appeal, Mr. Rahim who appeared for the appellant, stressed the fact that the appellant had all along kept the Shsol50/-- in his drawero When I asked M::-" Rahim whether when the Assistant Chief Accountant was investigating the matter and he questioned the appellant in respect of the Shsol60/- deposit, whether the appellant had told him that the money was still in his drawer, and if so, I said that I was quite prepared to adjourn the proceedings and call the i'.ssistant Chief Accountant to confirm thiso Mr. Rahim thereupon, after consulting and conferring with the appellant, stated that the appellant did not tell the Assis- tant Chief Accountant that the money was in the drawer, because, and I quote: "He had to see PoWal, Mr. Ndimbo". To recapitulate, the appellant should have handed the money on the very day after he received it, to the cashier as he himself stated that the cashier was then in the officeo Failing that, he should have handed the money over together with the necessary documentation before going off on twenty-eight days leaveo Failing that, he should have handed the money in to the accounts section when he was transferred to Msimbazi Street office. And further, when the matter was being investigated and he was questioned by the Assistant Chief Accountant the least one would have expected was that he would then have told the Assistant Chief Accountant that the money was still in the drawer, if indeed it waso It is thus to my mind, abundantly clear that he did not hand in the money at the various stages because he had utilised it for_ his own purposes, although at the time of the trial he had money with him and was prepared to refund it theno 0000 4 I am quite prepared to believe and to accept as a fact that, when the appellant originally took the deposit of 31.solSO/- and when he issued the unofficial receipt on the memo page, Exhibit 1 B', he did not really intend to keep the money, but to use it for his own purposes and hand it over to DoMoT. when he actually had to. Even so, such action on his part in utilising the money belonging to the D.M.T., even with the intention 6f repaying it, constitutes a fraudulent conversion and therefore stealing, as expressly laid down in section 258(e) of the Penal Code which reads:- "258. (1) A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, is said to steal that thing. (2) A person who takes or converts anything capable of being stolen is deemed to do so fraudu- lently if he does so with any of the following intents, that is to say - (e) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.". The second ground of appeal as set out in the petition of appeal is:- "(2) that the Learned Resident Magistrate's judgment contains no finding of fact that the appellant had taken or converted the money fraudulently and the conviction is therefore erroneous both on point of law and fact."o This ground has even less substance than the first ground, as the learned magistrate stated in her judgment inter alia:- "PoW.4 further identified a letter written by the accused to the Chief Accountant and copied to him. In it the accused states that he is willing to repay the amount stated in the invoices which amount has not been accounted for. One of the invoices in question is invoice Noa 004164 which shows that P.W.l has paid Shs.150/- as a deposit for private hire and that he is to be refunded Shs.18/75.". And again:- "The amount therefore should have been accounted for by the accused person. This as his duty, he failed to do and on the contrary elected to retain the money as well as the invoice which should have been sent to the Chief Accountant. No where on D.M.T. records is there a receipt number which proves that _Lhad P.W.l (Ndimbo)_Lpaid that amounto"• It is therefore abundantly Clear that the learned magistrate found that the appellant had converted the Shs.150/- to his own use and therefore stole it, in accordance with law, as above set outo And he was therefore convicted as charged, which conviction I ocooS s.; may; with respect, confirm, is fully supported and justified by the evidence" With regard to the sentence imposed, as the magistr~te directed herself, it is the minimum prescribed by law as the offence is a scheduled one under the Minimum Sentences Act, 1972; and the court had, to use her own expression, no option but to impose such minimum sentenceo In the result, the appeal is dismissed in its entiretyo Delivered in Court at Dar es Salaam this 21st day of August, 19740 (PHILIP BIRON) JUDGE I 'I