Jadav v. R. Crim. App. 8-M-71; 16/9/71; El-Kindy J.

Jadav v. R. Crim. App. 8-M-71; 16/9/71; El-Kindy J.

The appellant was the guest of the complainant from whom he borrowed various sums of money totaling Shs. 1570/=. He told his creditor that he would repay the money by cheque and issued a post-dated cheque in his favour for

the amount. When presented on the due date it was returned with the remarks “No account”. The appellant around the same time borrowed Shs. 1500/= from another and issued a cheque for that amount. The cheque was presented at the wrong bank and was therefore returned unpaid. The appellant had a bank account but insufficient funds to satisfy the debt. The court found that if both cheques had been presented to the bank on the dates they were due to be paid, payment would not have been effected because of insufficient fund. The appellant contended that he was expecting Shs. 25000/= to be paid into his bank account by his brother before the due dates. The court found him guilty on 2 counts of obtaining money by false pretences c/ss 301 and 302 of the Penal Code and sentenced him to a term of imprisonment for 2 years. He appealed.

            Held: (1) “To succeed in a charge based on S. 302 of the Penal Code, the prosecution must prove, beyond reasonable doubt that (a) the person charged has obtained or caused another to deliver to another something capable of being stolen by (b) means of false pretence, and (c) with intent to defraud. In the absence of proof of any of these ingredients conviction cannot be obtained or, if obtained, cannot be sustained for obtaining by false pretences.” (2) “The representation of a matter of fact is held to be false if the representor knew that it was false or he did not believe in its truth, and this representation has to relate to past or present fact. It could not relate to the future for the simple reason that what is in future is unknown and could not therefore be said to be false. In this case, with respect, both post-dated cheques relate to the future and therefore if was not within the meaning of Section 301 of the Penal Code. The appellant at no time told Balsara and Barai that he had money when he drew the cheque. What he told them was that money would be available on the dates mentioned on the cheques.” (3) [Dealing with the Republic’s submission that  a conviction for cheating c/ss 304 of the Penal Code could be substituted on the present facts]; “Cheating is obtaining or causing another person to deliver to the other something capable to being stolen by means of a device or a fraudulent trick. It cannot be said in this case that the appellant used a fraudulent trick bearing in mind what he said about his money not coming from Uganda, and the post-dating of the cheques.” (Citing Machoea Binmasapi v. R. 1 T. L. R. (R)\ p. 305). (4) Appeal allowed.