[2024] UGHCCRD 54

#### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **CRIMINAL DIVISION CRIMINAL APPEAL NO.020 OF 2024** ARISING FROM CRIMINAL CASE NO.4763 OF 2022 **------------APPELLANT SURESH PARMAR--------VERSUS**

---------------RESPONDENT **UGANDA----------------**

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#### **BEFORE HON: JUSTICE ISAAC MUWATA JUDGEMENT**

The appellant being dissatisfied with the judgement in criminal case No.4763 of 2022 at the Chief Magistrates Court of Buganda Road sitting at City Hall appealed to this court against both conviction and sentence on the following grounds;

1. That the learned trial magistrate erred in law and in fact when he held that the special resolution dated 25^th April 2022 for the transfer of 80 shares from Platinum Plus **Enterprise PTE Singapore to Suresh Dharmadas Parmar was** a false document and that the appellant forged the signature of Jaynesh Patel Ratilal thereon thereby occasioning a miscarriage of justice.

2. That the learned trial magistrate erred in law and fact when he held that the transfer of share stock document dated the 25^th day of April 2022 was a false document and that the appellant forged the signature of Jaynesh Patel thereon thereby occasioning a miscarriage of justice.

3. That the learned trial magistrate erred in law and fact when he held that the transfer of share stock document dated the 25^th day of April 2022 was a false document and that the

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appellant forged the signature of Harimwomugasho Francis thereon thereby occasioning a miscarriage of justice.

- 4. That the learned trial magistrate erred in law and fact when he held that the transfer of share stock document dated 8^th or (9^th) February 2016 was a false document and that the appellant forged the signature of Jaynesh Patel Ratilal thereon thereby occasioning a miscarriage of justice. - 5. That the learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence on record regarding the execution of the alleged forged special resolution dated the 25^th day of April 2022, the transfer of share stock document dated the 25^th day of April 2022 and the transfer of share stock dated the 8^th or (9^th) of February 2016 thereby occasioning miscarriage of justice - 6. That the learned trial magistrate erred in law and fact when he failed to properly evaluate the document analysis reports on record thereby occasioning a miscarriage of justice. - 7. That the learned trial magistrate erred in law when he proceeded to hear and determine Criminal Case No.4763 of 2022 (Uganda V Suresh Parmar) despite the prior institution of Civil Suit No.343 of 2022 (Platinum Plus **Enterprises PTE Singapore Versus Suresh Parmar and 2** others. - 8. That the learned trial magistrate erred in law and fact when he sentenced the appellant to a consecutive term of seven years' imprisonment which was harsh in total disregard of

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the principles of sentencing thereby occasioning a miscarriage of justice.

The appellant made the following prayers;

- 1. That the court sets aside the conviction and sentence of the trial court - 2. That the court acquits the appellant of all the charges against him. - 65

3. That in the alternative, and without prejudice to the foregoing, the court be pleased to set aside the sentence imposed by the trial court and imposes a lenient sentence.

#### Duty of this court

This being a first appeal, it is the duty of this court as the first appellate 70 court, to reconsider, re-evaluate and reanalyze the evidence afresh and come to its own conclusion on that evidence. The court should however bear in mind that it did not see witnesses testify and give due consideration for that. See: Kifamunte Henry V Uganda SCCA No.1

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The parties filed their written submissions which I have considered.

#### **Resolution**

### The appellant argued ground 1,2 and 6 together. So I shall resolve them similarly in that order.

The gist of ground 1,2, and 6 as submitted by counsel for the appellant is 80 that the impugned special resolution dated the 25^th day of April 2022 and the transfer of share stock dated the 25^th day of April 2022 were both

executed by Jaynesh Patel(PW1), Nayanar Suresh Parmer(Appellant) and not forged as alleged by the prosecution.

It was their contention that learned trial magistrate erred in law and fact 85 when he failed to properly evaluate the document analysis reports in respect of the signatures on the impugned documents thereby arriving at a wrong decision.

Section 342 of the Penal Code Act defines forgery as the making of a false document with intent to defraud or deceive. The prosecution was 90 therefore required to prove beyond reasonable doubt that the appellant forged the complainant's signature on the impugned documents presented before URSB which was intended to defraud him of his shares in the company.

- The prosecution presented testimony from PW6 Sebwuffu Erisa a forensic 95 document examiner who had received two requests from the investigating officer to examine the documents in issue. It was his evidence that there were fundamental differences between the specimens, obtained from the complainant and the questioned signatures. - One of the observations was that the sample signatures provided by PW1 100 displayed fundamental differences with those appearing on the special resolution submitted to URSB. The differences were in skill of writing, initial stroke, and shape of design of certain letters among others. It was his conclusion that the authors of the sample signatures did not sign the questioned signatures on the impugned documents. His findings are 105 contained in the report exhibited in court as PEX57.

DW6 SSP Sylvia Chelangant conducted a forensic examination of the impugned documents and compared the signatures on it with the known samples submitted. Upon analysis and comparison of Jaynesh Patel (PW1) known and specimen signatures with those on the impugned documents presented at URSB, she determined that they were not made by the same hand.

She further observed that there were fundamental differences between the questioned signatures in the exhibits and the corresponding signatures. The differences included fluency in writing i.e. the sample signatures are naturally written unlike the questioned signatures in the impugned documents. It was her observation that based on the nature of the documents examined, there was strong evidence to suggest that the writer of the sample signatures did not sign the questioned signatures.

She detailed her methodology and presented her report as an exhibit 120 DWX6. The evidence of the experts thus corroborates the testimony of PW1 who told court that the he did not sign on the purported resolution of Platinum Plus (U) Limited dated the 25^th April 2022 sanctioning the purported transfer of shares from Platinum Plus Pte Singapore to Mr. Suresh Parmar the appellant herein. 125

It has been stated that the weight to be attached to an expert opinion depends on whether there is a demonstrably objective procedure that guided the expert to reach the opinion rendered in court. A court will not act on the opinion of the expert unless the facts upon which the opinion is based are proved in evidence. See: Iwa Richard Okeny V Obol George Okot Misc. Civil Application No.063 of 2012

Furthermore, expert evidence has to be considered alongside all other evidence, and the judge can reject the expert's opinion if it is not soundly based. See: **Uganda Vs Mugerwa James Criminal Appeal No.124 of** 2022

In the instant case, I find that the evidence of the handwriting experts with respect to the impugned signature provided no other hyposesis other than that the said signatures had been forged. This evidence corroborated that of the prosecution witnesses and was sufficient to prove that the said signatures had been forged.

The expert reports presented in court do not support the appellant's version that the PW1 signed the said documents. I therefore cannot fault the trial court's findings based on that expert evidence that the said signatures on the impugned documents had been forged.

With regard to the intention to defraud, it was clear from the prosecution 145 evidence that the intention was to sanction the transfer of shares from Platinum Plus Singapore to the appellant. The intention to defraud could therefore be deduced from the fact that the said document was presented to the Registrar of Companies to sanction the transfer of shares to the accused person whereas not. 150

With regard to the second document of the transfer of share stock dated 25^th April, 2023, there was also evidence from the handwriting experts that was corroborated by the evidence of PW1, and PW4 Mr. Francis Harimwomugasho who maintained that he did not witness the signing of the said transfer of share stock. It was also his evidence that the appellant

155 never appeared before him. The accused also confirmed in his evidence

$6$ that he had never seen PW4 and also admitted not appearing before him. His evidence was also that he did not see PW1 sign on the said document.

The appellant's insistence in his defense that he sent the document to India for PW1 sign was not backed any evidence. Whereas PW3 confirmed that he was given a document to take to India in April 2022, he stated that never met the complainant at any one time. That the accused just asked him to courier the document to his family in India. There was no evidence to show that PW1 received the said document and signed on it.

As for what was stated by DW4 who claimed that PW1 has received and 165 signed the transfer, the court found this questionable as the said document had not been notarized as required by law. Section 84 of the Evidence Act is to the effect that private documents purporting to be executed out of Uganda must be notarized. In the instant case there was no evidence that the same had been notarized leading to only one 170

inference that the said document bearing the signature of PW1 and PW4 was false and had not been signed by any of the person it purported to.

The intention as already established was to deceive the Registrar of Companies to act upon the impugned documents and transfer the shares belonging to the Platinum Plus Enterprise PTE Limited to the appellant 175 whereas not. The finding of the learned trial magistrate cannot be therefore faulted. The trial magistrate properly evaluated the evidence in that regard and came to the right conclusion.

Ground 1, 2 and 6 accordingly fail.

Ground 3 180

It's the appellant's contention that the trial magistrate erred in law when he held that the transfer of share stock document dated the 25^th day of April 2022 was a false document and that the appellant forged the signature of Harimwomugasho Francis thereon thereby occasioning a miscarriage of justice

Harismwomugasho Francis testified as PW4, in court he was presented with PEX.5 which was a transfer of share stock document. It was his evidence that the signature and the stamp had a semblance of his signature but that's not how he signs. It was his evidence that his signature is totally different and the stamps he uses are round and not oval. He categorically stated that the signature and the stamp did not belong to him. Furthermore he stated that as a commissioner for oaths, the appellant has never appeared before him.

It was therefore very contradictory for DW4 to state that the document was signed from India and yet PW4 whom the signature had been 195 attributed to was a commissioner of oath based in Uganda and had denied signing the said document. He stated that he had no recollection of the appellant appearing before him. This coupled with the evidence of PW6 the handwriting expert which showed that the sample signature he provided and the questioned signatures were fundamentally different was 200 sufficient to prove that the signature of Mr. Harismwomugasho Francis had been forged.

This ground also fails.

Ground 4 and 5.

The appellant further contends that the learned trial magistrate erred in law and fact when he held that the transfer of share stock document dated 8^th or (9^th) February 2016 was a false document and that the appellant forged the signature of Jaynesh Patel Ratilal thereon thereby occasioning a miscarriage of justice

It was the evidence of PW1 that he came across a share transfer $210$ document of 2016 where some shares had been transferred. It was his evidence that his signature had also been forged transferring 5 shares from Nayan Parma to Platinum Plus Singapore Limited.

He also admitted that on the said dates he transferred 75 shares from Suresh to Platinum but in the process of filing the same at URSB, the 215 document with the authentic signature which was dated was not presented but the one with a fake signature was presented. It was his evidence that the entire plot to defraud him started in 2016.

The said signature on this document was also submitted to the forensic expert for examination and the handwriting expert found that the same 220 was fundamentally different from the authentic signature of PW1. The intention as already found was to defraud the appellant. This ground also fails.

#### Ground 7

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It is the contention of the appellant that the learned trial magistrate erred 225 in law when he proceeded to hear and determine Criminal Case No.4763 of 2022 (**Uganda V Suresh Parmar**) despite the prior institution of Civil Suit No.343 of 2022 (Platinum Plus Enterprises PTE Singapore **Versus Suresh Parmar and 2 others.)**

There is no universal principle that proceedings in a criminal case must 230 necessarily be stayed when a similar or identical matter is pending before a civil court. See: Sebulime Baker Vs Uganda Criminal Appeal No. 21 OF 2018

Furthermore in Musumba Yahaya & Anor V Uganda Criminal **Revision Case No.4 of 2019, the court noted that no statutory law** 235 requires that a civil or criminal matter should take precedence over the other and the MCA made no provision for staying of criminal proceedings in preference of hearing a civil matter.

For the appellant to therefore argue that the trial court erred in proceeding and determining this criminal matter despite the prior institution of the 240 civil suit has no legal basis. It's not a hard and fast rule that whenever a civil suit has been instituted prior to the criminal proceeding based on the same facts the latter must be stayed. Each case must be determined on its own circumstances. Pendency of a civil suit does not necessarily bar the institution of criminal proceedings against anyone. 245

In the Supreme Court Case of Sarah Kulata Basangwa V Uganda Criminal Appeal No.03 of 2018, the court while quoting the earlier decision in the same matter by the Court of Appeal held that "it cannot be the correct proposition of the law that where a civil suit is pending between two parties, no criminal proceedings may be instituted against one of the parties arising from the same facts." The court went on to state that criminal proceedings may emanate from the same facts but it does not deter prosecutors to institute criminal proceedings because the facts are similar to that of the case. In light if the above position of the law, I find no fault in the trial magistrate

proceeding to hear and determine the matter albeit the appellant not raising the matter in the trial court. This ground therefore has not merit.

#### Ground 8

The appellant contends that the learned trial magistrate erred in law and fact when he sentenced the appellant to a consecutive term of seven 260 years' imprisonment which was harsh in total disregard of the principles of sentencing thereby occasioning a miscarriage of justice.

An appellate court will only alter a sentence imposed by the trial court if it is evident it acted on a wrong principle or overlooked some material factor, or if the sentence is manifestly excessive in view of the 265 circumstances of the case. Sentences imposed in previous cases of similar nature, while not being precedents, do afford material for consideration: See: Ogalo S/O Owoura v R (1954) 21 E. A. C. A. 270.'

It is the argued by the appellant that the trial magistrate erred in law when he considered the appellant's lack of remorse as a reason for 270 sentencing the appellant to a consecutive sentence of 7 years.

It is indeed the position of the law that it is erroneous for a trial court to consider an accused lack of remorse as an aggravating factor in sentencing. Whereas remorsefulness maybe a considered as a mitigating factor, the lack of the same cannot be used as an aggravating factor. This 275 was the position in **Mattaka Vs Republic (1971) E. A 495 at page** 512.

The learned trial magistrate therefore erred in considering the appellant's lack of remorse as an aggravating factor in arriving at a consecutive sentence of 7 years.

Similarly, it was erroneous for the trial magistrate to opine that the accused wasted courts time and considered it as an aggravating factor. It was within the accused's rights to maintain his plea of not guilty since he did not bear the burden to prove the case. The fact that he maintained his innocence throughout the trial cannot be taken as wasting courts time.

Further, the appellant was a first time offender. This ought to have been taken into consideration

In light of the above, I shall consider a more lenient sentence. The consecutive sentence of 7 years is set aside. The appellant is sentenced to 5months on each of the counts as convicted to run consecutively. In the result, the appellant shall serve a sentence of 35months.

The conviction of the trial court is upheld and the appeal partly succeeds with regard to the sentence.

I so find Judge $11/07/202$

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