R v Mwila (Criminal Review Case 41 of 1938) [1938] ZMHCNR 3 (31 December 1938)

12 Vol. II] R. v. MWILA. Criminal R eview Case N o. 41 of 1938. Penal Code section 317— uttering as and for a subsisting and effectual document a document the operation o f which has ceased by effluxion of time—Native Tax receipt issued under the N ative T ax Ordinance (Cap. 65) for the year 1935 tendered after alteration o f year as such receipt for year 1937— conviction under section 317— conviction upheld. The facte appear from the judgm ent hereunder. Since the date o f this judgment the N ative Tax Ordinance (Cap. 65) has been replaced (in respect o f native tax payable for the years 1939 and after) by the Native Tax Ordinance, Cap. 161, section 14 (1) (6) of which makes it an offence punishable, on conviction for a first offence under the section b y a fine not exceeding £5 and for a subsequent offence under the section by a fine not exceeding £15 or to imprison­ ment for a term not exceeding three m onths to evade or attem pt to evade payment o f the tax b y any means whatsoever. R obinson, J .: This case has been sent to the H igh Court for review as it is said to be in the nature o f a test case. The facts shortly are that the accused came to the D istrict Office at Kasama on the 25th March and produced to the native ta x clerk a tax receipt which purported to be for the year 1937. It obviously was not for 1937, the “ 7 ” having been clearly substituted in indelible pencil. Suspicions were aroused, but when pressed, the accused very definitely persisted in his story that he had paid his tax for 1937 and the produced document was the receipt for that year. A t a later stage he admitted the produced document was the 1935 receipt and asked to be allowed to go to his village to get the 1937 receipt which was there. Still later he admitted he had never paid the 1937 tax and paid it then and there at the office. The result, therefore, is that the accused produced a 1935 tax receipt on which the dates had been altered, crudely, to 1937. H e then said he had paid the 1937 tax and that was the receipt. I f all had gone as he had hoped he would have avoided paying the 1937 tax altogether. Clearly some offence has been com m itted and the only question for the High Court is whether the accused has been rightly charged under section 317, Penal Code. In my opinion the charge can correctly fit the facts o f this case. The relevant parts o f section 317 are as follow s: " Any person who knowingly utters as and for a subsisting and effectual document, any document the operation o f which has ceased by effluxion o f time, is guilty o f an offence o f the same kind and is liable to the same punishment, as i f he had forged the docum ent.” [Vol. II I am satisfied the words “ any document ” are wide enough to include a false document. I would have preferred the charge to have been laid contra section 316. The document was clearly false, see section 310 (6). The evidence shows the accused knew all about it and it was fraudulent (see section 311) because there was in existence at the relevant time the Administrative Officer and through him the Government capable o f being defrauded thereby. Section 317 is more clumsy in that the dual meaning o f the produced document has to be kept in mind. In its proved true capacity as a 1935 receipt its operation as a receipt for 1937 has ceased b y effluxion o f tim e; in its false capacity, it was uttered as and for a sub­ sisting and effectual document. I do not propose to disturb the finding, conviction or sentence. If, as I think was at one time contemplated, the charge had been laid contra section 312, Penal Code, the Crown would have had to be able to “ Uttering ” was prove that the accused himself made the alteration. the more convenient charge under the circumstances, and, as I said supra, other cases with similar facts should be brought contra section 316, Penal Code.