Manubhai Patel v. R., Crim. App. 440-D-69; 20/3/1970; Georges C. J. Saidi J. and Hamlyn J.

Manubhai Patel v. R., Crim. App. 440-D-69; 20/3/1970; Georges C. J. Saidi J. and Hamlyn J.

The appellant was charged in the District Court of Dar es Salaam of theft, c./s 265 Penal Code. Particulars to count 2 read; “MANUBHAI RANCHODBHIA PATEL, on or about the 2^nd of January 1965 at Dar es Salaam stole Shs. 10,123/- being the proceeds of three cheques in that total amount drawn in favour of Messrs Ntibwa Saw Mills Ltd.” The evidence was that one Jeram Kara was authorized to endorse the company’s cheques for deposit in the company’s account. Between October 1964 and May 1965 he stole 13 cheques, endorsed them and passed them on to the appellant who deposited them in his own account. The total sum involved was about Shs. 35,000/-. It would appear that where the appellant’s account

Showed that more than one cheque had been deposited on a particular day he was charged with stealing the sum total of all the cheques deposited on that day. The appellant did not cash any of the cheques in the sense of obtaining money to the amounts stated on them. They were merely deposited in his account and it may reasonably be presumed that he would have been able to draw from this account as he wished.

            Held: (1) The proceeds of the cheques refer to the money which would be obtained if these documents had been converted into cash. They cannot refer to the documents themselves. “It is clear that when the appellant deposited the stolen cheques in the bank, the money which they represented became the bank’s money. Of course as a result of this deposit the appellant’s credit with the bank would improve, either by increasing the amount standing to his account there or lessening his debt if he was in overdraft. The fact is, however, that he never received money for the cheques but merely credit. He could not, therefore, be said to have stolen the money which the cheques represented, although he got the benefit of the credits they produced in the banks books. These principles cannot we think, be questioned and once they are accepted it is of great importance in a case of this sort to make sure that the accused is charged with theft of the article which he has in fact stolen.” (2) “The question is whether or not the appellant should be convicted on this form of count if indeed what he stole was a cheque and not the proceeds of the cheque. In this matter we are bound by authority. In the  case of Menzour Ahmed v. R. 1957 EAR page 386 the Court of Appeal held that the words “the sum of Shs. 3,000/-“ used in the particulars of a count for theft, sufficiently described a valid cheque for that amount. In that case the appellant, an advocate, had received a cheque for Shs. 3,000/- on behalf of a client. He had endorsed the cheque over to a commercial concern whom he owed money, thereby obtaining credit for the value of the cheque. At page 388 the judgment reads as follows: - “In our opinion the evidence could not support the conviction for stealing the proceeds of the cheque. This was conceded by Mr. Webber for the Grown. Although the appellant received credit for the amount on the cheque, he did not convert it into money by cashing it and no money as distinct from the cheque itself ever came into his possession. There must be an actual receipt of money before there can be a conversion of it.” This statement of the law is exactly applicable to the facts of this case. The appellant here did not at any stage receive money for the cheques. All he did was to obtain credit in account at the bank. He could not, therefore, be said to have stolen the proceeds of the cheques. This passage from the case of Menzour Ahmed makes it clear that a cheque and the proceeds of a cheque are two separate things, and that if one is charged of the theft of the of the, one may not, without amendment, be convicted of the theft there …… [it is] abundantly clear that he proceeds of a cheque are quite different from the cheque itself, and since the appellant on  the evidence in this case could only have stolen he cheques and not the proceeds the convictions cannot be supported.” (3) “A number of arguments have been advanced on the issue of case stated. The whole procedure has now been repealed in Tanganyika and no disrespect is intended of the argument advanced by counsel for the appellant, if we do not examine them in detail in this judgment. The difficulties which arise under this form of procedure will no longer be possible since the State is now permitted to appeal directly just as any other

Litigant.” (4) “Had the applicant been charged with receiving the cheques themselves, knowing them to have been stolen, it would have been possible to decide this case on its merits without being bogged in the arguments which have necessitated three appearances in this court.” (5) “Accordingly this appeal is allowed.”