Habib v. R. Crim. App. 364-D-71; -/8/71; Onyiuke J.

 

Habib v. R. Crim. App. 364-D-71; -/8/71; Onyiuke J.

The appellant, an Assistant accountant in Tanganyika Tefry Plastics company Ltd., was charged with 12 counts of stealing by servant c/ss 271 and 265 of the Penal Code, 12 counts of fraudulent false accounting c/ss 317(c) and 265 of the Penal Code and one count of stealing by agent c/ss 273 and 265 of the Penal Code. The evidence against the appellant binged on the testimony of one Sachoo, a Cash Sales Clerk with the Company, and the case arose out of the appellant’s handling of the monies received from Sachoo. The proper procedure was for Sachoo to

Collect money from customers on cash sales and hand it over to the appellant whose duty was to bank the money. Sachoo kept a Cash Summary Book in which he entered all receipts from cash sales in duplicate for the day and on the following day the appellant would check the entries, collect the monies and sign for them. The appellant would then pay the monies into the Company’s account with the Bank. As a result of a surprise check by the Company’s chief Accountant, discrepancies were found between receipts by the appellant as shown in the Cash Summary Book and payments as per Bank Pay-in-slips kept by his and these shortages related to cash had not cheques which were duly paid by appellant into the Bank. In his unsown statement, the appellant claimed that although he signed the Cash Summary Book, Sachoo continued to keep the money thereafter until he was ready to pay it into the Bank. Sachoo admitted the point on cross-examination but added that he did not keep the money after the appellant had signed for it. In his judgment, the trial magistrate held, inter alia, that: - “PE. 1’s (Sachoo’s_ evidence is a simple one and to my mind untainted. He used to prepare the C. S. S. and hand over the money to the accused who used to sign for it ……………… As far as the court is concerned the time of handing over the money is not of any particular importance. What is important is the fact that a signature was obtained for the receipt of the money. If the accused was foolish enough to hand back to PW. 1 the money he had receipted for he has himself to blame.” Counsel for the appellant contended that the trial magistrate had misconstrued the defence, the consequence of which was that the trial magistrate made a wrong finding of fact as to whether or not the appellant signed and immediately collected the money. Counsel added that the trial magistrate having failed to appreciate the defence, did not subject the prosecution witness to close scrutiny.

            Held: (1) “The learned magistrate set out the evidence of the prosecution witnesses in his judgment but, with respect, he failed to evaluate or analyse it in the light of the defence. He dealt with the submissions made by defence counsel but he did not adequately consider whether the case had been affirmatively proved by the prosecution. It is established law that a conviction should not be based on the weakness of the defence but on the strength of an affirmative prosecution case. Pyaralal Bassan v. R. (1960) E. A. 854. A consideration of defence counsel’s submissions may involve a consideration, to some extent of the evidence but it does not relieve a trial Court of the duty to make definite findings of facts on the issues raised at the trial. The main issue raised by the defence was whether PW. 1 kept the money after the appellant signed for it an it was an issue that called for a finding of fact by the learned trial magistrate. I have to state that the learned magistrate misdirected himself as to the defence and in his dealing with the defence submissions. The nature of the defence has been already considered in this judgment. PW. 1 was the most material witness for the prosecution. The defence was alleging that he retained the money after the appellant had signed for it and therefore had the opportunity to misappropriate the money and to shelter under the fact that the appellant had already signed for it. The learned magistrate stated that it might well be that he had the opportunity to do so but that there was

no evidence that he stole the money. This, with respect, was a wrong approach to the matter. The appellant has not got to prove that PW. 1 stole the money. All he had to do was to raise a reasonable doubt that he (the appellant) did no steal the money. He tried to create this doubt by pointing out that PW. 1 had the opportunity to steal, arising out of the fact that he retained the money after obtaining the appellant’s signature. This called for critical evaluation of the PW. 1’s evidence and a consideration of other available evidence before accepting or rejecting it. I am satisfied that on a proper direction the learned magistrate might easily have held that PW. 1 had no such opportunity as alleged but the point was that the learned magistrate did not seem to direct his mind to the question.” (2) “The learned magistrate failed to properly distinguish between civil and criminal liability when he stated that the appellant had himself to blame if he was foolish enough to hand the money over to PW. 1 after he had signed for it. Negligence or foolishness may found a civil action but it is not a sufficient basis for criminal liability for the offence of stealing. The prosecution has to prove fraudulent asportation or fraudulent conversion by an accused to succeed in a charge of stealing. One does not prove stealing within the meaning of s. 258 of the Penal Code by showing that an accused person was foolish or negligent. Finally I have to state that although the learned magistrate correctly stated the principle of the burden of proof beyond reasonable doubt he did not adequately apply it to the case before him.” (3) Appeal allowed and retrial ordered.