[1948] EACA 89

## APPELLATE CRIMINAL

## Before Sir Barclay Nihill, C. J., and Modera, Ag. J.

## **NOOR MOHAMED, Appellant (Original Accused)**

## REX, Respondent (Original Prosecutor) Criminal Appeal No. 605 of 1948

Criminal Law—Obtaining money by false pretences, Penal Code, section 306— Representation of future event—Definition of false pretences; Penal Code, section 305—Evidence of theft, Penal Code, section 269—Accomplice— Corroboration—Conviction of theft, Criminal Procedure Code, section 188— Sentence.

The appellant was convicted under section 306 of the Penal Code that with another he obtained by false pretences a sum of Sh. 23,240 cash from the complainant. From the evidence the representation made was merely to the effect that the appellant could make East African currency notes and would make them if the complainant would advance moneys. The trial Magistrate found that the complainant did advance sums of money to the appellant and his confederate who converted them to their own use. There was no real corroboration of the complainant's evidence of the actual payments. The appellant was sentenced to 18 months' hard labour.

On appeal

*Held* $(14-12-48)$ —(1) That it is well established law that a representation as to what will be done in the future, even if at the time the intention is fraudulent, does not constitute the representation of a fact for the purpose of founding a charge of obtaining by false pretences as defined in section 305 of the Penal Code.

(2) That acting under section 188 of the Criminal Procedure Code the appellant should be convicted of theft as defined in section 252 of the Penal Code.

(3) That whilst the evidence of the complainant might be treated as that of an accomplice had he been giving evidence against the appellant on a charge of forgery he could not be said to be an accomplice in thieving from himself.

Conviction under section 306, Penal Code, quashed and a conviction of theft under section 269 substituted. Sentence already imposed considered not excessive and to stand.

Nene for the Appellant.

Holland, Crown Counsel, for the Crown.

JUDGMENT.-In this case the hearing against the accused was delayed in order that his co-accused Mohamed Ali Dossabhai might be arrested. This arrest was never effected and thus accused stood his trial alone upon a charge under section 306, Penal Code, of having obtained jointly with the said Mohamed Ali Dossabhai the sum of Sh. 23,240 cash from Keshavlal s/o Lalji by false pretences.

The evidence for the prosecution discloses that by various representations the complainant Keshavlal Lalji was induced to part with Sh. 23,100, that the representations were made firstly by the accused, later by Mohamed Ali Dossabhai and again later by both the latter and accused.

The complainant is the only witness who speaks to the nature of the representations and a perusal of his evidence reveals that these representations were nothing more nor less than to the effect that the accused could make East African currency notes and would make East African currency notes, if the complainant would advance moneys.

The definition of a false pretence is contained in section 305, Penal Code, and it is established law that a representation as to what will be done in the future, even if the intention at the time is fraudulent, does not constitute the representation of a fact, for the purpose of founding a charge of obtaining by false pretences.

ν.

In our view there is no evidence in this case which warrants a conviction of the offence charged and we must respectfully disagree with the decision of the learned Magistrate, who failed to direct himself correctly regarding the charge of false pretences. The conviction under section 306, Penal Code cannot be allowed to stand and is quashed.

We have been invited, as we are empowered by section 188, Criminal Procedure Code, to do, to record a conviction against the accused of stealing contra section 269, Penal Code.

If we are to accede to this suggestion we must be satisfied beyond all reasonable doubt that the accused was, in conjunction with Mohamed Ali Dossabhai, guilty of theft as defined in section 262, Penal Code.

In the course of his judgment the learned Magistrate has made use of the following expression: "In any case however I am completely satisfied that he (the complainant) did in fact part with the sum of approximately Sh. 23,240 and that this money was obtained from him by the accused jointly with Mohamed Ali Dossabhai".

If the complainant did part with the money or indeed any of it to the accused and his confederate there is no doubt that they did fraudulently convert that money to their own use.

The complainant claims that he first parted with Sh. 21,000 to the accused and later Sh. 20,000 to Mohamed Ali Dossabhai. As to the first payment there is no direct corroboration of the complainant's story, and as to the second there is merely the evidence of two witnesses P.12 and P.13 who state that they advanced to the complainant Sh. 10,000 and Sh. 6,000, respectively, without receipt or security.

There is no corroboration of the story of the complainant as to his actual payment of Sh. 1,000 to Fazin Din, P.8, the landlord of the house which was rented apparently only for the manufacturing of forged notes.

It has been argued that the evidence of the complainant must be treated as that of an accomplice; whilst this might have held good had he been giving evidence against the accused on a charge of forgery he cannot be said to be an accomplice in thieving from himself.

The learned Magistrate, in view of the manner in which complainant has become mixed up in this affair, has very rightly accepted his evidence with the utmost reserve, and he has referred to the complainant as foolish and gullible.

For these reasons we are not disposed to interfere with the finding of fact by the learned Magistrate and we in turn are satisfied that the offence which has been proved beyond all reasonable doubt is that of theft.

We accordingly record a conviction of theft *contra* section 269, Penal Code. The punishment awarded by the learned Magistrate can in no way be said to be excessive and we confirm the sentence of 18 months' I. H. L.