19750217 TZHC Mwanza

V l~ IGl COITRT C.LTNLJ L.PPPLL No 140 OF 1974 - '.Oi'iginal Criminal Caso' No. 442 of 1973 . of tho District Court. BukobaDistrict at Bukoba boforo \7.RO .LIr&iba, Esq., R. L. TRYPH0NI13,KE 1 0 . . • . . . . • • • • • LPPELLLNT

VOTSUS H , , , . , Puc1u1 ut f..'1a accowliflg c/s 317 (b) of the Pen1 Code Cap. 16 of hi laws. . 2ndCor Sta)ing by a pcun employed inthc publiô ser'iic c/Os 270 .:..nd 265 of th. Pn1 Code Cap. 16 of 1'30 3rd Count: Stalin by a parson (-., mp1ord in the Public T±c c/cs 27 0 nd 265 of the. Pai CodG Cap. 16 of 1ws' 4thCou.nt Frudu1nt f'.lje accounting c/s '317 (c)'of'bhc Penal Code' Cap. 16 of thelaws. - Ith C2t: Saling -V by a rcon nploy in the PublIc Fieó c/s0 270 311d 265 of the Penal Code Cap. 16 of .iclawo. 6thCount St 1ii b, a p - n ci-iploy d in the Public i1 Vicc c/ ss 270 "nd 265 of the Pcnal Code Cap. 16 of ti laws. lthCourit: Praudul nt fL;: ccountin c/s 317 (b) of the Penal Code C'p. 1..' o bi' lmc. 8th Count: Staa1in by p': son mp1oyed in Public ce:r'vi6o' c/os 270 - 265 0.. the F ual Code Cap. 11 of tlic l ws. LUGLKINGIlU, LG. J. — 'rrphoie flbckeng as hargcdith tin'ec counts of fraudulent false acco.: and five counts' of 'tealin by public , crvant and convict. d on all c'nins. lie was awad'var'ious cjrhtc's ran inL from ori to five 3rfl5 -. , psonrnant a n d all sc.ntcno 's order d to run corcuri iily. h ,ac elso ord( red to r f.nd the amount of bh..J8,222.30, the total amount said to hey': IY. i-u tolan in the five theft couns. Prom 'the convictions, s: nt - no - s end order hi hs uot' appled. The 2cl1ant wao mplo o of tho Bukoba Co—oper Lic iLuion — wnich I shall

for bravty r - i 'r to cc 'thc Union . and vtas se'.e to — cornmit't'c1. the oficnor s cnard ;Y1LI.1" cxiployed as a Ce.s.iGr and iook K ?-r in the ciurette bvsiness oicti'ci oL tha Union. The offence a ör'ed were said to have baen committed hetye:'u: D,,cenbr:r 8,1972 and LpriJ. 21,1973. Bcforo procccdinC to consider 'hi. .7u'rits of the appeal on each of the count involved - whose- facts will al:.a h r:viewed briefly alcn dth :,',:ch count 'I heve' found it desirable io" cons.der first whethar , the appollai-u -t'was'in facto public 'servent. Th result tof , th±'s exercise may also have abeari on' sentences for thefts wh'i'cn IY:;r. 'imposed unacr the thnjmum S'-n'':nces c 1972. In section 5 of th: P. ::al Uo a eper s on employed in the scrvicc is defined vaiouslr. I -hunk 'that for thc purposy of 'this j , the rd ':vant dcfinitjon irj 'th -t e b found under (i) irmadi-'tL" afte introductory words 'ccording te t:is a person is a public servant i holds auiy civil office ±;icic'.d the office of President and any of f ice the powr of apoi: -GInL a person to'which or of removing from which is vaet.d' in the Prcsidtorin - '-- co'nriisionorbocrc. to 1. Lhc Prsicj nt has. dolcg t d his functi or of, or icnis _jrite nl for the pu'osa 1D of ,' .,:ahti' oppointrn.'i -ta to nr office; . (empaeis upr1i:d). *._.. d -* -2- The Union is a sCe nce:y e.ci h within the moaning of section 2 of

the Cooperati?Q So ot 5.'0t, No. 27. .pf 1966. This is because it clo.:s not contain m(;.:'b'rs who arc i divi L, 131A L, 2o up sa vra1 pri"ery so'i and it is not a national socict: its area of op'ration does not o.tcnd thioghOut Thnganyika. For ts i n the Union is a sooity to ..ich the proviaion of tne Unifd Co—op S"zvi ct, io. 44 of 1968 apply by virtue of the provisions of a' otion 3(b) thereof, although there is no direct evicicncc on this, it can he a :f' ly inferred from the record generally that the appellant was employed, on peraen nt terms. Ho was thercfrc an employee to whom the provisions of tii: leeL mentioned ct applied. by virtue of the provisions, of sction.3(d) thereof. For that reason he was a cnhei' of the Unified Co—opc±ativo Service established under section.. 13. cf :c.to,.. 44. of 1968 by virtuc of the provisiorie o± section 13 (2) (a) thereof. te'otion 4 of 'the said .LOt No,. 44 of 1.968 cetobliohes an Unifid. Co—operative S rvice Qommission o ccording to aection 3 (b) of the said ict the SOIl1. Commi.ssion is given powe Hto appoint persche to hold or act in any office in thc'Scrvico, namely, the Urificd Co—operti'vc Office to which, we hove already seen the appellant was a member. .. . . . avor.'ting to the definition quoted above we sco..that a. parson is a public servant if he holds "any civil office • . '. .—.'or ......."office the power of

appointing a persOn to which . . a • . . . is vested in a. commission or board. . •. •. a . • which is established by written law for the purpoc of nahii appoin icnts • • . . Now, tuc' Tjrjfj. r Cooprra'tive Service Commission was established by written law. It has power to make appointma'rts to the officc,h ld. by the appellant by virtue of his membership to the tJnifiad Co—operative rcrvice. It therefore fofl6ws that the appellant was a person employed in the public service or a public servant. It appears to mz from this definition, that the person concerned need not actually' have been appointed by the Coernffaion. It is enough if he holds office, or performs tin duty thereof, weLch is one to which the Commission has the power of appointmcit. Having come to these conclusions, I am satisfied that the appellant was pron ny charo ao a public uervant and. th the 11inimum Sentncos act, 1972, was ri,htly invoked. I 'wi.1l now turn to consider the various counts with which he chorged and convicted. The first count was oiof fraudulent fals account3n, cn'rary to ,soction 317(b) of the Penal CoUc. The charge alleged that between 8th and 12th Dcccobtr, 1972 tin appcL 'node a ±alsc ontr in a cash book of the Uflion at column 129-130 purpoating to show that on.the..said cIa's the balance brought down in cash bock was Sha.. 332,458/85 which ih'fact was not 'true. The .carge was not

entirely correct and I have dosistcd from quoting the same in full in order to avoid confusion. The true .Position as revealed by the ovicJncc was"that the total en'h.'rid as collected at th bottod of folio 129 of the cash bo'ok was given as Shs, 33505 2 .55 (which wa' coroect) but the amount carried forward.to the top of folio 13 0 was given as Shs,. 332085.85. This meant the amount carried forward was 1"sa by 5hz. 21893070 which constituted the amount stolen in the socn•d count. The prosecution contended that the error was not accidental but. was intended to defraud.. ..... Something s, oul.d be said 1orc regarding the charge. The error committed .n framing it was in my view one of form not substance. .From.thc evidence record and the appellant's own d,cfencc it is clear that the appellant well 'erstood the charge he was Scacing. , I am strengthened in..,-thia belief by the owing passage from the appcLant's defence: 'I filled. foliO 129.. .1 made "ning total hero. I also filled the total of folio 130. Thorn i,s a 'nec between the amoont at the bottom of folio 129 and thet on top of . ' which is shown to be brought forward,. .1 carried forward the total at folio No. 1 29. On account of this, I are satioff 3. that the as not. embarrassed in his defonco, henoc' the defective charge did INC 'ea failure of justice. It i.a therefore curable undor section 346 .1 Procedure Code. ount

one, it has olr.::ady been pointed out that the prosecution was. intended to defraud. The 'Court of ppcal in ,jL,(l959) .I 525, h ld, following Ghc. judment of ordoui eii3.Cloba Finance Cor,p,orotion Ltd (1) (1903) 1 Oh. ..' is to upvr by c''ccrt tuet it is by 3. cat to inriuce jure, Lcpariffn on tnic 'th Coui& i'enL on to sttc, at . ... . • ./3. '7 — .3 — "To be defrauded, th'n,a parson must either have ben doprived which has b:.en :l to eean iivd of h..vng some economic value (how v:r sail), or he must havo b:n inducod to act to his 0 injuity, not n;ccissarily an ecruo..ic injuy.; and both from 0' an—sense and froe the decided wthori;ios it seems clear that, ir this PUrP0, being. ±nducd. to 2ct would include boing iiducei to rccain inactive ti Wehac seen th:.t ti apllant figuxes at folios 129 and: 13 0 of hash:bobk shôuod e diifrenc of 3is.2,893.7 0 . If that dicrepancy w r' ioolateU it coti b reasonably rud +ht prcbbly it was,by accident. But there zs lurti c of r lat'd intri s ifvolv. the caine amount. For isene, on the .........folio 129, it was shorn by tho appellant .*and he öid not deny it— -Lht :L:s on 11.12.72 rea1is.d a to;ai. of She.. 90,771.75. On the ea'u: folio h s ..owd tnat the amount banked was 1s. - 8.7j878. 0 5 and this was supported by cont-:nts of a duplicate pay—in—slip.wh.icii he did. • not dchi writing. The diif :renc betw on the two figure a is

again She. 21893.7 0 . Ho did :.ct stop there. In his salis ana1y4i,book.he appellant showed that total discounts for Dccebr, 1972 was Shs. 15,957.30. When ".1 transferred this figuri to the pbating lodger he inflated it to She. 18,351.00. . goin, the difference b.twecn the two figures is ohs, 2,893.70, coo.ug to P.'I.6, the Union's accouriient and intrna1 auditor, the latter devis: was -nr ,,.dln to enable the pelant to prepare a J. balance whi c h appear proper. In fact, hee ,1d prepare one which appeared so. Th:rc. can be no .Thubt, and I errcc with the tr.a1 niagiatrat.i, that this exercise in reanoaurri: figures,. particularly when iiwas indulged in with repetition, must h;:ve be.'n in -tsndcci to defraud. It was intended to deprive the Unioi the • a..ent of She. 2 1 893.70 wh±0h was not:shdwn, to have boon bankcd at folio 129 o tjlC cbsh book. nd by the preperation f a trial balance which dppuarcd px'oper it was intended to induce the Union to remain iractivo with regard o ul cIi,crcpancic s at folios 129 :d 130 of the said • - cash book. I ciii t thcreforo iatisfic d that the first eoeint wee established by evidence and I suctein th. conviction and sentence thereon. In the s cocu c it s alleg''u that the appal a t stole the amount of She. 2,893.7 0 w i9h concerned the fclsificaticir in the first count. The first pros cutii1 witness appears to have h en in oharge of

the appellant's cigarette sotion. He told the trial cout th.t after discovering thê.disàrepancies at foiiol29and 13 0 of the cesi: hokh: went to the Bank and saw from the bank •c±etemeìt that th. , amount of Shs. 2893,70 had not b..'i Thru us not tcidercd in cot.rt. The appcllant attacked this evidence in .ia memorandun of appeal and I t.ink he had good resson±o do so. This :vihencc, as it rloted to nn—bankiigofthe money, was sebondarj and inadeieiol in the bsncs of cofaiti i..c cht could bring it wi -thin the ambit o:i s:dtion 67 of the Evidence act, ho. 6 of 19 6 7- Subs ction (1) (g) of ction provid s tint s cu'try vid Ylc may b given "w iCfl th, e originlz cc i-si t of nun rous acco'a' or oth r docm nts which cannot conveni:1 -.- t.1; be: xamind in court, and the fact to bG proved is the general result o the wlole collection. nd sübsction (5) thereof goes on to provide that in tn. case of the above quot.d subsection "evidence may be. given as to t1i genra1 rs.ltof the accounts or dobu.mcnts by any • person who has examinl th.m, apd. who is skilled in;the. exeminatin of such accounts or documents. In J,B.M'sa (1957) .i!..n. 67, . bank inspector was p rrniitu'do give evidence, at the tial 'abou th: abcount of i rm without t dr.ug hank statcnicnts. It was held. by the high Ccurt of Uganda. on appeal that .evid:'ncc of the bank inspct.or was admissible brcauce the condit.

p'ion1ng to section 63(9), of th Uganda A,idcnca 0rdnancc, Cap. 9 1 :the equI - alcnt, of oi± s'ctioi 67(1) (g) and. (5), had been fulfilled. This docs i r ferrd to W3th approval b t Cort of LppeL in Cr, 1 pp. No. 120 of 9714 (1971) HcD. 43J, reversing (1971) 1CD 307. • • . . The positio 1 app ar diffrnt in th i 1 5ii1 c a . Thrc was no evia:-nce that P . 1 'r c siei1lcd i th. .examination of bank documents. Unlike the Ugaiida cas i-ihers the witness wee in fact amploy:d as a bank inspctor, in this eec.: F0W,1 was not employed by the hank.in any capacity. - . ,.............../4. - 4'- w an cmp1occ of nc F'orj. Th rc wps also no cv c dcucnts CXS.TIiflcd WCTO 11UC:TOU3 and iricpablc of buin cx in in court. In fcb, tr c rr onlj to a bank s t a tr i w 1 understandl to be. singic Sh'.t, In 'n se cirCuia -tencj I am ccns"GraIn:d to holu that the C'ViLL uc of P. .1 g1, ad ut -ted, Howovcr, the was also th cvidricc of P.46, thc Union's accoun -tan-t and in - riOl audi -tar. Th:i.s witnsa who •ndc rod the cash book showed to th trial court }ow aJu folio 129 of L ic so o tzn cppelirt had r corded r cciv]ng Sle. 90 1 77175 o u o. iki-ig Shs, 87,878.05. it no LL iid the appellant deny mokine the "ntri a. In fact ho told. the tn ci court, u1 filled folio 12 9. P.W.6 won -b ftu - Lr and produced a book of poy—in—lipa which a-ain ahow:d °bhc Sha. 87,878.05 bnly had boon bank ci. Of course 7

the book t of py-in—olipa h1d dupl coto only which were ticmo1ves as much of scbobldbny cvidcncc. Bub tbc appellant dci not objct, to the book being tendered nor question bhc uthontioity of the contents th000f, In the Francis Kioko case 7 above, bho Court of appeal said:' "We agree that in a criminal case there canbc no acui050enoc or consent on the part of an ccctacdh person, but in considering whether to apply the provisions of section 346 of the Criminal' Proccdur Cho.o the absenco of any objection by the defnoe is ane1ovant factor. In considorind h abova two pieces of evidence coupled with the apcllant's admias ons or acquiescence, I find it difficuLt to come to any • other conclusion than fhot he did not bank the money and in the absence of any plausible explanation that ho pocketed the' same, I hoto that the trial magistrate was guided by this tamO circwnsbantial evidence. 41thouh it would have been more desirable for the original pay—in—slip or the bank statement or both to be produced I thinkthe irregularity - was, in these circumstances, curablç under section 346. It is equally difficult to imagine that the original Olip nd bank statement would have shown thet the appellant banked the entire coli -'o -tion of 11.12.72 when the dunlicate and the'cash book which were in his custociy did not. I therefore hold, that there was sufficient evidence upon which to enter a

conviction on the second count and I accordingly uphold the same and the sentence theron, • The third count wasalso one of stcalin' by public srvant. It was alleged that between 2nd and 3rd pni1, 1973, the appellant stoic Shs. 509.80 1 the proprty of the Union. The evidence on this was vary brief. In the same cash book at folio 150 the appe11at recorded on 3,4673 that he had received Shs. 4 2 ,447.75. On the same folio he further rocorded that ti entire amount hd ban banked, But the duplicate pay-in—s1ip, in the same book as in count. two 7 sowed that bhs. 4 1 037.95 only had seen bank9d. The appellan -t admitted writing folio 150 in the cash book and voiccd no' objection to the incrimina-Lind pay—in—slip. On the same roasn.ing as that in count two I likewise findthat the third count was established. The conviction and sentence thereon will remain undisturbed. On the fouxth count the appellant was again changed with fraudulent false accounting, this -time under subsection (c) of section 317 of the Penal Code, It was said -tha'b on 16th Jpni1 1973 he omitted to cntor cheque No 47587 for Shs. 5,318-8O in hin cash book, 1 had some difficulty with this count bccause it was tied up with count five. In the fifth coünt it was alleged that thc appellant stole the equivalent a:ount of Shsa5 818 . 80 : a5 Iwill presontlydemonstrote. On 16.4.73 thcapellañt rCceivcd the cheque which he did

not enter into the cash book. On 19,4,73 the;cash book showed that between l7thand 19th the appellant received cash totalling Sha. 73063.90. On 21.4.73 the cash book and the pdy—in—slip shoiedthat he had banked the same amount of Shs. 739463.9.0, but the pay—in—slip went further to show that bhis amount included a chequ Ito. 475807 f Shs, 5,818.80. In other words, - fcm the cash of 19.4.73 the appellant was alleged to have pocketed 51'cs. 5,818.80 and substituted the cheque of 16.4.73 -• in its place. ••. • . : • • •.. ..s.. . • 4 • a ... ,• . —5- The qucstoi J Cl ii appellantts omi ci to rcord ne c G'UG n .hi qasil book, albei.t t.hat it was later shm on a pay in slip and banked, — — was intndcd to defrc-id. I have difficultis in arr±v ng at a positive answcr.' To., 'a •niind as 1 o-us as the ,chcque appear-ad s.oaewhurc in the. Union's ,b'ools ,and was. subsequly banked there arose a neation of aiiy inention. to •dcfraud. The o;ais;ion to record it in the cash book was of. course 'unprce ur a b1U bhat al o would not found ciiina1; .côlv icti.T-.. The 4act tht- cqi.al amount in cifshfron the collection of 19.4.73 was subsequently .not banked' does not' in my opinion alter the position, it was c1ear to t1c appellant's superiorc, P.U.l and 6, that by 19.4.73 the ape11.an -t .reccive '-:.afld rc.ordci Shs. 73,4 6 3.9 0 cash. It w very clear to the same pevsons that on 21.:4.73

tic appellant bar4ized. le-so cash as clearly sot out in the pay—in—slip. The fact that the cheque ws then added may have been intc1d.,o,,nceal the 'fact that loss ask : been banked if one merely glanced at the total. ....What was fraudulent. tl;en, .nd. for which the appellant shou].d. hav.e bce charged, was his omiosion to include in the. pay—iri—sli.p cash Shs. 5,.818.70 or his action in implying that the cash stated in the pay—in—slip represented the eri - iTe collection of 19.4,73. when in fact it did not. lor ,th ­ ~sc, reasons . I.acqui -t the appellant on the fo4rt1i count and '.sct aside th sentence imposod. The fifth count, ,m:othc on of theft, does not from o:thers aliaadydisous.:d0 The, cash, book showed that ,or 1,o4.73 the pe]lant had Shs.73,.463.90 in cah. It was also clear, from the.. ciu.plica-be pqyin_ s lip tha -tn 21.4,73.thc ay.ellant banked that sUn3 ]es Shs.5818.70. In view •of thc reasoning in count to abcut the evidcnc,e and the.....1l1art!s failure to satisfactorily . accuni•.icr .thc , laz' mount I. have no .hesitati' in hdidtn"that the offence was conc1uaiiel i'r9ved. Conviction arid sn.te:cc td.11 therefore stand, - , Count six was likawice one of theft. It was alleged tht.. 17th . January, 1973, the appcl:Lunt sto1 cah. Ss. .,26 1 000/. the 'pr.opetyf the Union. The re was an ar.':angon'nt in the Union's administratad.:whercby

t'he"nin..p"-ficc could borrow molicy f:. :ie cigaiatba s.oction. On 13.1.73, ,P.Tc!.4 'roni t;e main offic-' went to t e c' arctic sac ion and bor't'oiied Sns. 26,000.00. lIe was given. talS money by the appellant. n 17.1.73, P.W.4 repaid tc a4 monsy to the cigarette- eact.on but n tiis occasion he found P.W:.]. who received the monçy rand iscuc a receipt J'io. 4639,, The appellant had briefly done out. It was than icstified by PW.1 that - when the appellant returned, he imdIate1y handci over, the money to him 'together with the rclevont.rcceip -t book. Howovor, he- got no written acknowledgement by the appellaht of the fact of, the han-ovar nor was there any eye vitnoss to the t'ans'ac -tion The appel1a denied to h-ye rc,ccived any such money from P.l. Be explained that in his receipt hookhc neither found a receipt bca±ing No.. 4639northe duplicate therof anct t oLgjat it to oe a printing error. Thc rcceptbook was not tendered as it could not b. traced. In his judgemont, the le-arndi trial magistrate was cicaly meertan which of the two storiurj.was the true one, He admitted that P.Wl may' iii. fact have pocketod the money and removed the duplicate of the receipt from the rcce•ip -t book. He however went on to convict the appellant on the ground that 'Ho woild stubbornly insist on a lie': in the face of facts -that proved him- wrong' and that he did not rpp.prt, -tho absence

of receipt Ho,, 4639 when it came to hisknowledge, With respect, I think the learned magistrate did not poperly direct himself in relying on the CC grounds,, in the first place it was definitely 'wrôngto assume that everything the appellant said was false merely because he had been prvcd to lie on ç.thc.r occCion, This only shows that the learned knagistra -ta did not give any or 'sufficient consideration to the defence story althoigh' earlier on he had conceçlodtjiat the appellant c.'.uid be telling the truth. In similar situation in da v. (1973) E'..l98, 'the. High Court of Kcnya'guash - d the appellant's conviction and I fully agree with that decision. The f. ct that the apc!lant did not report the missing rcàeipt was purely a circumstanti:l factor which could not be relied upon in the absence of batter evidence unless it suggested nothing elc but the appellant's guilt. The trja1ma'?ist te.,acu1d have considered co—existing factors which. tendod to weaken tho su;astion, e.g., the existence generally of a degree of irresponsibility and sluggishness in the workings OfthO Union, He should have considered, for ivaY'ncc - 6 - that PG1,-01 was prepared to hand over She. 26 1 000,00 to too appe1ant - as he himsoif said witoout aemending for a receipt. ho sio1d have consider.d. the -t P.W.3 wab T1eo perd - as he himrj1±' said - to hand ow.r to the appellant the cheque for Shs.

5,818,80 on 16.473 without 1so demanding f areccipt. He should hay: considered that although theeppollairt's falsifications wc-r d.etccLd as early as the second wack of January, 1973, he was allowed to coretinu3 with tbe same job until about the and, of ipri1; was allowad to had ovr to a aucccsoor witot any prior or prop ohacking; and hig books were not audited uirtil 27th June, 1973. Was it ea1ly abnormal, in thea circumstances, that the appallant did not consider it necessary to report oie receipt book which did not contain a singld folio that had never been known to exist? The courts cannot takc judicial notica of the existence of a folio in a rccoit book. I cannot with certainty say the -t th6 magistrate would have arrived at the conclusion he didhd he - considered the story told by the appellant and the co—existing factors, stated 3bo-va. I therefore allow the appeal on this count, quash 'the conviotibnand sat aside the scntcnOe nnd order. • I now come to the seventh count which was also one of fraudulent false accounting. It was isaid that on 6,4.73 the appellant made an entry at folio 150 of the cash book showing that on the said day he hd given Shs. 6,400.00 to the main ofice when in fact ha had not. I. hastn to point out that the cvic1cncd on this count left much to be desired. It was••• .st by p:...w.5 that on 5.4.73 he went to the appellant and borrowed She.

3,000,1= on behalf of the main office a He was givcn a receipt w ich was tcndcrad:in evidence. 'However 1 at an unknown date, - the prosecutionsaid it could be 5th, 6th or 7th fpril - the appellant recorded in his cash book that he had loaned to the main bfiic; the amount of Shs. 6,0001=. He did not enter the payment voucher nwnhc:r u:'on which and the date when the loan was given out. The prosecution cash was that this entr of Shs. 6 9 000.00 was supposed to rclhta to the loh'of Slis. 3,000.00, It was therefore con±eid.cd. that the appellant had inflated the ±'iguro in order to defraud the Union. The trial magistrate agroedwith tIis-ärgurn:nt but I find myself constrained -to disagree. There was no cvidnce whatsoever to conn:: ct the loan given out on 5,4.73 and the entry made on an unknown date. The prosecutionargued that the connection could be inferred from the fact that no loan of Shs, 3,000.00 was recorded in the caaLi book and. that, according to PW.5, no other loan was taken from the appellant. I will answer these hricfl: If theloan of Shs,3 1 000,00 taken by PW,5 had not been recorded then thd appellant should have bean - charged with fraudulent false accounting by omitting to rcooidthat loan. Secondly, although PW5 may not have returned to take another loan from the appol1antit did not me:'n that no one else d,id. There was evideitce that the taking of loans for the

main office was not a privilege of one man, On 13.1073 1 fOr instance, it was P.W.4, not P.W.5, who took the 'loan of Shs. 26,000.00. On the other hand P.W.1 told the court that the main offiec denied to have rccaivnd She. 6 2 000.00. That was hearsay and inadmissible in eVidence. The main of:ioc should, have come to deny the receipt in court. It is hardly a hundr' - d. motres from the resident Magistrate's court. In total'I find 'tha -L this coon -b was not conclusively proved, It is possible that some person from the main office may have aquirad Shs.6,000.00 from the appellant aith: b fore or after 5.4.73. Jbcordingly, conviction on this count is similarly quashed and sentence set aside. • The eighth and last count presents no difficulty in view of what has 'been said regarding the mavc'nth counto It was one of th--'ft It 'was alleged that after the appellcur:. had made the false entry of Sha. 6,000,00 in tie last count he 'thon stole Ohs. 30(O.00 the excess. is I h've already argued it was possible that soeenc from the main officc may have taken Shs. 6 2 000.00 from thoappdllant b:,fore 'Or after 5,4.73.'' I slay only add that there noovidnc of any rc Joss,. o money.: It was '011 speculative. I therefore allow the appeal on this count as well, quash the conviction and 'set aside the scntencc and order. * .. -:• -7- In summary, the appeal has been allowed on the fourth,

sixth, sevcnth and eighth counts. It has been dismissed in its entirety on the first, s cond, third and fifth counts. 2is the appellant was awarded the minimum sentence of five years' imprisonment on the fifth count, tho results of this judcment do uot aI'cct sentencing. However, in view of the success in -the sixth and eig]th counts, the appellant will have to refund Shs. 9,222.30 only to the Btiloba Co—operative Union Ltd. Mwzr. K. 5, 1 LUGKEGIRJ HFEBFWIRY, 1975, PCTING JtIDGE.