R. v. Kundasari Crim. App. 89-A-70; 29/6/70; Bramble J.

R. v. Kundasari Crim. App. 89-A-70; 29/6/70; Bramble J.

This is an appeal by the Republic against a decision dismissing four counts of Stealing by a person employed in Public Service contrary to section 270 and 265 of the Penal Code and five counts of Forgery contrary section 337 of the said Code. The respondent was a tax officer employed by the East African Community. It was alleged that he forged five cheques which he obtained as refund of income tax by signing certain forms in the name of ficticious persons and in the course of his employment and received the benefits from them. He was charged with stealing the sums stated on the cheques. The evidence shows that except in counts 2 and 6 the cheques were deposited toward respondent’s account in the bank. In the case of count 2 it was proved that the appellant paid it in the course of the purchase of a pair of shoes. The witness, who testified to this fact said that he gave the respondent change but did not remember the amount. Nothing could be presumed against the respondent and there was no satisfactory proof that he did receive any change. As to count 6 there was evidence that the relevant cheque was paid towards the purchase of maize and that the vendor was holding Shs. 77/- change for the respondent. He had not delivered it when investigations started and the charge was brought. On the counts of forgery the court below examined the question as to whether the handwritings on the forms were that of the respondent. There was confusion over the point of handwritings and no expert was called.

            Held: (1) “While the learned Resident Magistrate did not specifically find that the respondent had not received any cash, this is supported by the record and it was upon this he based his decision. Two cases were cited by respondent’s advocate. The first was R. v. Davenport (1954) A. E.R. 602. In that case the facts were that he appellant received cheques signed by the directors of the company in which he was employed to pay to the company’s creditors and he used a number of cheques to pay his own creditors by making the cheques payable to

the creditors’ bankers and handing them to the creditors. It was held that the money which the appellant was charge with stealing was not the money of the company, but that of the company’s bankers and the convictions were quashed. A distinction was made in cases where the appellant had cashed cheques and the convictions for stealing were sustained. The second case Shir Kumar Sofat v. R (1957) E.A.L.R. p. 840 followed these principles. This was decision of the Supreme Court of Kenya but more recently a Full Court here cited the principles with approval in the case of Manubhai Patel v. R. (1970) H.C.D. 142. As a matter of Law, therefore, no case was made out against the respondent in any of the stealing charges and the dismissals were sound. The appeals must b and are accordingly dismissed”. (2) “As to the necessary ingredients of Forgery, that is the making of a false document and the intention to defraud or deceive, the learned trial magistrate did not make such findings facts as is necessary. He said “I think there is sufficient evidence to support all five counts.” This is not the sort of language that would have any meaning a criminal case, the finding of facts ought to be specific. There was proof that the names on the forms were fictitious; that money was paid out by cheques on the basis of the forms and that the respondent received the benefits of those cheques. In his unsworn statement the appellant admitted issuing the forms in question. I hold that the documents were false and that there was an intention to defraud”. (3) “Section 49 (1) of the Evidence act make admissible opinion evidence of handwriting by anyone acquainted with another’s handwriting. Subsection (2) provides that: - For the purpose of subsection (1) a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person or when in the course of ordinary business, documents purported to be written by that person have been habitually submitted to him. The learned Magistrate rightly pointed out that none of these conditions were apparent from the evidence of either of the witnesses and he could not rely on the testimony of [first witness]. Moreover, he added that the handwriting differed from one claim form to another which would make it difficulty for a person inexperienced in the art of handwriting differed from one claim form to another which would made it difficulty for a person inexperienced in the art of handwriting to give conclusive evidence. He had reasonable doubt as to whether the respondent was the guilty party and resolved that doubt in his favour. The decision is fully justified from the evidence. This was a fit case in which a handwriting expert should have been called. In any case there should have been alternative counts of uttering”. (4) “The appeals are accordingly dismissed”.