19840928 TZHC Mbeya

- - - - - ThE 29.. 1111 HI OT-PANZANIA 4 AT MBBYA A71LIjA JURISDICTION (MEYA REGISTRY) HIGH COURT CRIMINIL SESSIONSC CASE NU.h1. c 1914 (0RIGIwAI CRIMINAL dASE NUMBER 95 OF 1913 Cl TIi DISTRICT COURT OF MI3EYA DISTRICT AT 1A-33:i BfORE W N • 3, I(APAYi L 4: 1i SflIIOR L i) JAiN? D/O kIMMBE () NISaAH D/OiLANG verts 10 ¶IHE RUBLIC --------. ----- --- -- --- RES2ONDENL HAGE: IT COMNTi Conspirecy to conimit eu otfenc c/s 384 of the P.O. 2TD ComJTt audiilent fa1s. aecounting c/s 317 (b) c -f -Lhe C. 31t COUNT: Intent to drai.d c/s 336 & 337 of the P.C. 411 COUNT: Uttering a false document b/s 342 & 337 of the 5TI COUNT: Stealing by public 20 srvant c/s 270 and 265 of the I 4 JtJ]IENT * *- BAHATt,J. •- JANE KALYHtBE and KISSA1 MALAIa-O who wtre fiit and sd acos . respectively were jointly .dharged With five bount tinder Poal Code. Ihere was ori count of conspiracy to commit anfferie c/384 of -the Penal Codel This was :eor both accused persons. Then the second count - relating to 2nd accused was frauduLent false qccAntitLg 17 of the P€nal Codet There was also third count fQv 2nd accused only which was 30 intent to defraud clss 336 and 337 of the Penal Code, The fourth count o f iitteringa false document c/ss 342 and 337 of the Penal Code related to 1st accused only. Finally the 5th count of stealing by pubUc•t c/ss 270 and 265 of the Penal Cod was for both cos d. Thy were convicted as

charged and sentenced to substantive 1cm of 5 years iupris onmen t eacb • There v iao azi o i'd or of ref'undin g, Pi c. ste loLl rioney to T.C. Mbeyi. I will retain the descrip.tiors ofthe apacilants as. they appeared a.50 . in the trial. I should point out from the outset that there is no offence of intent to defraud d/s 336 of the Penal Code. Section 33.is an explanatory section as to the moaning of 'tintent to defraud it does not create any offence. Silarly the offence of uttering a false docuijent is contrary to.sedtion 342 of tao Peial Codea Section 337 is not supposed to be Cited for on bffehce di uttering a false docinent Having sa at-4-w1l now ct oub to deal vvith the appe l on it rierits facts were mostly not in dIspute 4 The 2nd accused va wotidng for R.T.C. Mbeya at Sanil-ya as a cashier. I should e:cplairihe i'e that the w term R.T.Ce means Regional trading dmpany 4 The is -b acCused Wea also a cashier at R 4 T j C6 Mbeya at the head office i,e at Mbey Pa eccused brought the sun of Slist 45683/25 k, thehad osftibe. This sum of money was acthompanied with te dash spie ieceipts used in collectinr this sa. When added the cash sale deiptC dne to the £igi±ae f Shs& 1B63/2 Also tde 2nd àbcused had DIepqrCa i pay-.in—slip and bank uo±ifiocLtLon fox' thC jst acottsed. The páy—iu-diip prepared by the iid acuod showed varioth duins of money in oath to the tune of Shs. 43 9

843/ plus a cheque of Sh$ 84b/= The total amount ô the pay-4n—s lip wad Cliown as Shs 45AV=4 When act'al1y it was only Shs.. 3683/r if ecldecl properly 20 Thesd oümeits together Wit4 th6 money whose total is a point in dispute were haMad over to 1st ancusd by 'the 2nd accusef4 iien the lot accused issudd n official receipt ofhbey5 R.T.C. of Shs 15683/b wheh eke handed CvCr to the 2nd. acuied. The 2nd accused left :b:r kr pl cc of work at San±ilya which is some dist', .-Ace from Mbeya tovni Ou tha nixt day the 1st adcus ed tool: the money to the hank. She first oi1htod tkç; ai and she w5 satisfied that it was ca1reci. The lot acOused found Joyce 9 P73 at the Natj,onal Bank of dônmerce Tbalizi Branch. PJ3 counted the money in cah and iouh4 it to. be. s 4,843/= There was also a cheque for Shs 844 On the pay—hs1tp 'the total was shown as Shs 45,6a3/=. bat 30 the ±guds on the :pay_jsijp aU4ed to only Thai 35683/=. The officer in—chrgd of P113 altered the payaa_s1ip to read iiS 35,(133/=. Then a bark statemeht fot Rd was seht on the sane dcy When the alteration was being made on the pay-iJlip on the same day ft was broht, the 1st accused had already left with the other pay-iiilip whic1 had also been stamped and initialled by PT34. p fter soiao tine it was discovered tht th e 1st accu&d had banked only 51: 35,633/= and nct45,683/=A qhis was just a weôk aftei the banking iithe hank

brouht the bank statement to RTC Mboy showing only Sha. 35,68/ bankod. It was aisc6vared then That th ere was a shortage of Si• 10,000/=. 21fter trroe weeks the 2nd accued-e e ±0 ±tie hed office and wgI.° howfl the bank pay III—slijij The matter was brought jo the attention of the polc and D/06 0igen,15 fon the Frouds Depi'trent. investigated the ease' He seized the pay..in-s1tp dated 22/12/82 for Shs. 45,683/ V5 interrogated the two accused. The 2nd accused to1dP?15 that she gave the money to 1st accused who issued an official receipt4 1c second ccused 10 on the other hand said that she did not receive the Sh5. 10,000/25 andthot she issued the receipt by mistaicco Fy75 decided to charge both accused. The report of the Chiof Accountant l\Ir. Kezoyc, F112 c1..ted 14/12/8 laid the blame of the loss of hs, 10,900/25 on the 1st nccUscd. In defenbe the 1st accuod sdd that The 2nd pccused brouht money to the headquarters on 22/12/82i The 2nd accused filled her pay in s.ip to shoW hoiq much money she had brought and in what denonination. She filled the peyin-s1ip at the head officei The totil cTsh \*a3 Shs. 34,843/, plus the äheque the tot::1 cmc to 35,683/= on tLG pay-ins1ip The 1st accused counted the aicney and saw it wis Sha. .34 2 043/= in cash. 20 She therl isued an official xeceipt for Shs,45,683/=. Trio following day she took -the 6r1oy to the bank s where The money was

received iad tic pay in slip stampedi She then returned to the officewifn the pay.in slip (eDthibit o)° After a wock the bank brought the bank statemert of .ibeya Rat, Tho bank statement showed that 8he had banked 35,683/=. Thn the Chief Cashier daked he' about the diffcrcnce She said she bad receilre.1 the money accoithng to the pay in slip, ae shortage of Shs. 10 9 000/= was therefore discovered* The Chief Cashier decided to wait for the 21id ccused. After 3 weks the 2nd accused cane to the head offiCe. She was shown the pay.in slip and the. (2nd ac&usod) said it was true IC forgot to h'ing the abs. 10,000/= and said that she would go for it ' There v/ore people in th office who heard this. The ne;t day she said that he had brought all The money. 30 The 1st acáused said in cross examination that siao had recoivcl les :nc that she dscovered this latere The witness :t'or 1st accused Tiffe, DW1 2 said that she was employed by RTC 1beyo as a cashier, She (mi) had hoerd from the bank ;bont short baking by ist. accused. D11 was also present when 2nd aCCUSed baatded money to 1st --iccuaed# Thn DW1 and others Eskod 2nd accused abott the short banking, - 4 . 4 ..32 .. The 2nd accused said that she was not sure iuid that when she goes back to .Santi.lyo she would find out whether there was any excess cash. It was • either Kadeya (i) or one Mboc who asked e . 2nd accusod ab'owt the

handing over betweeii her, ('2nd accused) arid- 1st aocused When the 2nd aCcused was about thononey she said that she had seen some excess amount of noney but how much excess she could not say. iore were ricny in tho office when this happned, The other defence witness for 1st accused was EVA (Dv2), 7 12 was a cashier w1t1i RTC and handed over her 'duties to 3.st accused when. she went on leave. It was the first time for 1st accused to do the job of a cashier; 10 After her leave DW2 came back to the office m'd was told about a Chortage • of Shs. .10 1 006/= 8 The 1st accused called 'the 2nd accused to fisk ber why in her previous transaction she did not bring all the 'money s There was then an argument between the two, The 2nd accused later said that perhaps she forgot it at Sinti1y and she'wanted to go and find out. The second accused left, Inter the 2nd aco -tised said that she dtd not say these words about 'forgotting the money at anti1ya and going to check. The defence of the 2nd accused was that she took She1 45,603/25 from Santilya and handed it over to the 1st accused. ' The oacrt :ao1ice'n was present ..uring this handing over of the money. The lot 'ceused counted 20 the nioney before receiving, it, She 'then issued a receipt (edaiit 'B') for Shs, 45,683/25, The 2nd adoused ohowod in court tao pay in slip (c3x1a "D") which she prePared, The pay in slip shows She.

45,683/. 'Tho 2nd - accused went on to say that the 25 cents were omitted on The pay in siipo When writing the pay in, slip the 2nd accused omitted to on-tar ths. 10,000/25 in the iay in slip, If she had entered it the total would have come, to She, 45683/25. She got her' official reoipt and returned tb Sn tilyc. The 2nd accused goes on in her d'efelece to say that when she cane to • bank other monies sh was told of the shortaeI The lot accused showed' I it to her t The 1st accused told 21id occue that 2nd accused he,d made a mistake in the - py in slipi The 2nd accuCd replied that the let accuced 30 could have corrected it before going- to the bank I/hon The (thief cashier asked her about the ma"tter The 2nd aecuaod deoded later o see the Chief Accountont ' The nd accuced 'taid"Thë Chief Accountant that there was .a aistake in wxLtiiag that pay in slip but that she' had handed over the money. She never stid ,Thet she he,d 'nOt brourht the money or that she Would' go- to Santilya' for"it' • ':• •' " ' ' I. 006s-ex.mined by the prosecution tiib 2nd accused said that she had often filled jy in slips, ross-exained by Mr.wakilssa for the 1st accused,:the2rid accusad sold inter alia th&-the Shsj io,000/ he omitted to enter on the pay in slip was in Shs, 10/ notes. But SilC nadc a mis take in the addition. I have purpo'sly' set out the defence ceci 'he dtàiled:',as possible because

it is Only then that this appeal may ,b disposd.d of properly. I did not sdt out the prosecution case in sudhdeta:ils because àL'iiost all the facts are adr.utted1b The learned trial magistrate found in his judgment that, th accued 10 were not speaking the' ti-uth. He also wondered how the 'p-3y-in-sli.pwas dated 23/12/82 whereas the official reeei± issued by the 1st accused wa dated 22/12182t But this ieod not have surprised tho learned trihl Magistrate because it is not quite true tliat -the pay in slip'wos dated 23/12/82 on 22/12/82 when it was preparedè A glance at Exh. "C which is the copy Of pay in slip which wa not alteed by the bank, ahc'wa that this copy only bears the month of Decenberi It has no day or year. The other copy of pay in slip which was altered by the bank has as its 'dote 23/12/82. .It is door here that the date was inserted an he''actuo1 day of banking. That was good sense bcause the data o:' the p:y in slip was 20 supposed to reflect the date of the banking and not too do te . *o ,ay slip was prepared,' Be thct as it may the ]earr.ed thn1 m"iati ....h went on to find 'cOnspiracy to.stea1:beveon the - cci;cd. II 0 toon convicted them as charged. The 1st accused filed her petition of appeal and relied on it in her, appeal anddid not add anything to it. . She Oct out seven grounds ofappeal which amount to this' that thc counts were -had for duplicity and

that there was not enough evidence tO p±'ove any of the-cotthts On tIie other hand the 2nd accused was iepresentod- at, the hea'ing of the appea). by Mr, Batunga 3 learned counsel' Who bed repi'eeontod her 30 in the trial c'oun't M±. Batoyunga: 'set' out 5 g±'ounds ot oppeal. tie attacjrQd the conviCtiors under as 317 ('b) and 270 of the Penal Coda aO tber was no flrLding on such convictiohs in the judgment. 'The Republic did not support the convictjoiis'. " I have retrained fm setting out the fUll ground of appeal and the aruLTents of Counselg Who appeared before me not because of disrespect but because I did not find it necessary to 40 reapitu1ate suchIengthy atguments, But it shOuld be borne in mind that I have takn due consideratioh in my jüdmont. of the grounds of appeal .. 34 .. and argunents given in arrivag at my conc1usions I will start the analysis of this eeoc at the end i.e. at the bank where The money was deposited Ff3 received cash and a cheque fran the 1st accused together with a pay in slip, It is now clear from the evidence that F13 simply stamped end initialled one copy of the pay in slip ai gave it to the 1st accused who left with it before Pf13 had actually counted the money and compared it with the pay in slip to see whether the two ta11ied This is clear from the evidence of the 1st accused .nd it is also clear from the two copies of the pay in slip. Indeed

Pf3 gave the original-copy of the pay in slip and remained with what is clearly nrked duplicate. - 10 But this does not mean that the copy with which Ff3. remained woo actually . the carbon paper copy because the person who filled the pay in slip might hove inteohenged them and written on what is marked duplicate thereby makig what s]aou].d hove been the original a carbon copy, Be that as it may, looking at exhibit "D" (copy pay in slip which remained in the bank) and exhibit Ct(copy of pay in slip which 1st accusef. was given) we can see that exhibit t tDt t has got ticks on each sun of money shown oit it. This implies actual comparing of the money with the pay in slip and ticking against ech alaount % Exh. "C 2' does not hE4ve such ticks. That is another reason to show that the money was not checked in 'the presence of the 1st 20 accused otherNise her copy of pay in slip Would have ticks as well. The guiding principle here are the documents, The bank receives cash and cheques by pay in blips, The pay in slip here shows actK4l total of Shs. 35,683/u al-though it is written Shs, 45, 6337=. It is renthinkable that a otstorr of the bank would have any guarrel with exhibit "D" which was cocte to read the correct total, If the 1st accused had t'ken to the bank SI-is. 45683/= the same would have been ref1eted on the pay. in slip. ior.i the above analysis I find that F13 received the

sum of Shs 35,6837= as re2ected on exhibit I come now to 1st accused because I said I was starting at the end 30 and ending with the beginning i,e, the 2nd accuse1's taking the money to 1st accused, Here again the 1st accused xeceived the money as per exhibit "C" and "D" namely the t wo copies of the pay in slip She counted the money as shown on cxhjbits "C" and "D" and found it to be in order and. oorreo Then she issued an official receipt showing the amount shown on the pay in slip (exl-ijbits "C" &D") There cannot be any question of 10,000/25 having been omitted from the pay in siip Iike 'PW3 at the bank the 1st accused vas receiving the money by using th pay in slip. Unlike ?H3 the 1st accused did not add up the suns onthe pay in slip 'to see whether they totalled to Shs. 45,683/=. 'Bit instead she issued a •receit for 45,633/25 But thiS receipt was is.ied on the basis, of the Day in slip. There would appear to be no reason for 1st accused when couitting the money given to her not to use the pay in slip where the money she was receiving was Chown and instead start writing somewhere else and make the tdtnii Everything had been prepared for her on the pay inslip, All she had to do was to see if each stun of money talljed with \vhat was on the pay in slip according 10 to the denominations of the money# Again like ifl the bank it is inconceivable that anyone would say that let

accused had received more than what The pay in Slip shows to be The correct totali What is important on the pay in slip is the actua1 total according to the amounts shown for each denomination and not the total which is written there which is in fadt not the correct total The only way the 2nd accused can show that she paid Shs'. 45,683/= to the 1st accused is by means of the pay in slip she used to iy - the money to 1st accused - Finally I come to the 2nd.laccusedl She remitted money to )st accused using The pay in slip, On. the pay in slip she had shown all the money in 20 different denominations which was to be remitted. UnfortJnately her atbtJ. was pretty bad. She showed a total of Shs, 451,683/= whell infact it was Shs. 35,53/ On the basis al that 'total of Shs. 45,683/= she got a receipt for Shs, 45,683/25 from, the. let accused . The receipt fox She', 45,683/25 would have a meaning. ..if there-were no pay in slip (exh. C" & "D") When therefore the lsTb eccused....says :inher defence that she issued the receipt (exil. "w) in error. she is supported by exs" ± -the pay iii' slip whiei was also errerleous, I bold', that exhibit.'. iBIT is worthiese here' in view of the pay in slip. (cxii., 'D) I could have stopped here with rega"to thisenalysis of the ease 30 but since there. are.other factors in.thia'mctter;I will go on to raaie further analysis, I should point, out trofli

the outset 'that see tioli )DO of the Evidence Act specifically recluires the exclusion of-oral evidence in proof of any matter whore there is 'documentary. evidence, 'It 'rieanS that where like here there is a document to prove a certain s.en as having - been disposed no evidence shall be giVen in proof of the teims of such dispoitjon except the douaneii.t its.e1-ee there are twoa docuisants 2. -r-.------ I ,. 36 e. namely the pay in slip and taerceipt. Since the Dceit was given on the strength of the pay in s1ip once-the pay inslipis proved rong then the receipt must also he wrons e - The evidence of 1st accused and her bvo witnesses is not in proof of the sum she received from the 2nd accused. it merely S1IOWs how the 2nd accused when confronted with the erro.oOus pay in slip s - id -that she would have to check again what had happened, These is no reason to ignore this evidence which has nothing to do with the proving ot the amount on the pay in slip, On the other hand, the evidence of the 2nd accused. on the question of how much she handed oyer goes to prve that the pay in slip is wrong.. 10 (after the eorcct addition hasbeen made) This cannot bo allowed under sectiofl 100 of the Evidence .ct - It follows from The above that the convictioa of Theft in respect of the 2nd accused is teiiable thd must be ipheld. But it is clear that the conviction of theft in resyect oi the

1st accused is not tens ble and it must be qishëd and I hereby quash the conviction of theft by public servant in respect of 1st accused TennyKelyémbe and the sentence is set asjae. With ega.rd to t1ae other counts of which the 1st accue onnyia1yenthe was convicted of they are hereby quashed and the sentences set aside 1 20 It is , c1sar nowThot no evidence was available to prove the same. With regard to -the 2nd accused Kissah Malango, the coniction on the first cbunt cannot stand and it is hereby quashed ar1 seiytcnce set aside because theie cannot be any qustion of conspiracy oto comait a felony in the eirc'zstances of this case. Even for the oniction on the second count of fraudulent false sccountin, thereis a reasonable doubt as to whether the 2nd accused intelided to defraud The evidence on rord shcvs hat sho may have gc-uine1y forgotteft to enter the money on The pay in slip One may ask why the count of stealing by public servant still stands. - The answer is not far to find., 1t. is that aftex failing to enter the She. 10,OpO/25 on the pay in slip whethqib mistakenly'- br otheivise, the 2nd aocisod nirer 30 remitted the money to the head o fic• e at any tine. That means tha t she decided to ruupDropriater -the sane Ii' t1 e 2hC. acosecl ad remit ued the money as she promiood l -i 1st accuEod that sbc iou1d do ti en no conviction of theft by public sorvoxi -tou1d stand

ith re,rd to 3rd count, as I said in the beginnin of this x1gneiit there is to offence c.reato& by section 336* Convictiofls ..........:: . .' ;•,,.. ....... - p 4 3 I. •à di 2nd and third counts ro therefoequashed and sentence set eside. All in oil the conviction cn eentence on 5th count against 2nd accused HP Kissah Malano are upheld. The' sentence is the bore oiniuun under the low The appeal by 1st accuod Janny .aI.yesrbe is: allowed, in its entirety. She should be released forthwith unless ôthxwise lawft1l held.' A. Raha ti '.

JUGE 28/09/1984 ' COURT: Judgment delivered in court on 28/9/1984. 10 MR. NDUNG-UIW for respondent, MR. 114TEYUITGA for appellant D.- • £4n • AT UBEYA JTJ1-E 281H SEPdIR, 1984 28/09/1984

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