Abdullah Hassani v. R. Crim. App. 237-D-70 24/6/70; El-Kindy Ag. J.

Abdullah Hassani v. R. Crim. App. 237-D-70 24/6/70; El-Kindy Ag. J.

The allegation against the appellant was that while employed by the National Food Distributors he made a false entry on a cash sale receipt. He was charged with and convicted for fraudulent false accounting c/s 317 (b) and (c) of the Penal Code and stealing by public servant c/ss 270 and 265 of the Penal Code. the case was tried by two magistrates one doing the prosecution case and the other the defence case as well as delivering judgment. During the trial the prosecution was granted leave to file a fresh charge against the appellant on appeal, the charge for fraudulent false accounting was held to have been misconceived.

            Held: - (1) “I would respectfully agree with the learned State Attorney that the charge was misconceived. As the appellant was alleged to have made false documents with intent to defraud or deceive, the facts if proved would have mounted to forgery contrary to sections 333 and 335 of the Penal Code. it appears that the difference between forgery and fraudulent false accounting is that, in he former the document itself if forged, while in the latter it is the entering or omission to enter forged document in account books which is an offence. In this case, if the charge alleged that the appellant had entered or omitted to enter the details contained in the duplicate and triplicate in the account books, that would have been fraudulent false accounting. But here the charge alleged that the duplicate and triplicates were false documents then made with intent to defraud or deceive.” (2) To file a fresh charge during a trial is permissible by section 209 of the Criminal Procedure Code but the accused must be told that he has a right to have the previous witnesses recalled. (3) It does not appear that the second magistrate complied with the provision of section 169 of the Criminal Procedure Code as amended by the Criminal Procedure Code (Amendment Act No. 10 of 1969. “This provision makes it mandatory for the Taking magistrate to inform the person on trial not only that he was taking over the case but that the person on trial is entitled to ask the Court to recall all the witnesses who had given evidence previously. This court has held in the case of DAUDI RAPHAEL & MASANJA V. R Cr. App. No. 77/69 that the prerequisite to the second magistrate’s exercising jurisdiction is the informing of the accused of his right and that if this is not complied with the second magistrate would have nor jurisdiction and the trial would be a nullity. In this case, as the second magistrate had not complied with this provision, he had no jurisdiction to try this case and therefore the trial was nullity.” (3) Appeal allowed.