John Joseph v. R. Crim. App. 247-A-68, 26/2/69, Platt J.

John Joseph v. R. Crim. App. 247-A-68, 26/2/69, Platt J.

The appellant was convicted of cheating contrary to section 304 of the Penal Code and sentenced to three years’ imprisonment. The appeal was admitted to consider whether the offence disclosed by the evidence was one of cheating or obtaining money by false pretences. On the 27^th May, 1968, the appellant had had constructed for himself a sealed tin containing turbid water. He then got the witness Ndesiotaw Sindate at the bus stand and explained that he was in difficulty. He asked Ndesiotaw to advance him Shs. 30/-. In return for which the appellant would deposit his tin containing groundnut oil valued at Shs. 60/. It appeared as if the tin had a few drops of groundnut oil on the top. Ndesiotaw

understood that the appellant was a relation of a neighbour whom Ndesiotaw knew. Ndesiotaw then completed his purchases and decided to help the appellant. The latter put his tin on to the bus for Ndesiotaw and as Ndesiotaw was giving him the money, the Police who had been watching the game, arrested him. The tin was found to contain only water. It was accepted that Ndesiotaw had believed the appellant’s general story and that his security would be the groundnut oil in the tin. There is no doubt that the appellant had obtained the Shs. 30/- on the false representation that he was offering Ndesiotaw a tin of groundnut oil as a security.

            Held: “The question was of what type of fraud was the appellant guilty? The learned Magistrate considered at length the question whether the offence of cheating would arise out of a private transaction. He quoted learnedly from Rhodesia and Nyasaland (as they then were) and correctly concluded that under the present Penal Code, it was not necessary to prove a cheat affecting the public at large. The code does not follow the English Common Law in this matter. But in not so doing, the distinction between obtaining by false pretences and cheating was largely obscured. All that is left is that cheating is perpetrated by a trick or device while obtaining by false pretences depends on a false statement of existing fact. But considering that such a false practice may be made by an act or conduct, the distinction may be very fine, if not non-existant. Take for instance the case of R. v. BULL (1877) 13 Cox. 608. The facts are conveniently set out in Russell on Crime 11^th Ed. Page 1357. The prisoner was in the service of a railway company and one of the rules of the company was, as the prisoner knew, that no servant should be entitled to claimed payment of any wages due to him on leaving the company’s service, until he should have delivered up his uniform clothing. On leaving the service, the prisoner gave up part of his uniform and was asked for his overcoat. The prisoner went away and soon afterwards returned with an overcoat, which in fact was not his as he knew. He gave up this overcoat and o obtained his wages. He was convicted of obtaining money by false pretences. He had presented a coat which by his conduct he falsely represented to be his own. Was it not a trick or device? Presumably it was. It was certainly a false pretence as well. The old English cases covered false tricks or devices in a private transaction where by property was fraudulently obtained. In the instant case, the appellant said his tin contained groundnut oil. It appeared from the fact that some groundnut oil was on the top of the tin, that what was stated to be the contents was true. While the manufacture of the tin with water in it might be seen as a trick or device, nevertheless, it can hardly be doubted that it was the appellant’s statement that was the main deception, no doubt aided to some intent by the state of the tin. Had the appellant merely produced the tin that would not have been sufficient to deceive Ndesiotaw. I am inclined to the view that where money is obtained on the strength of a statement as to the contents or quality of some object, it is the false statement concerning the contents or quality, rather than the presence of the thing that is material. For this reason then I would prefer to base the appellant’s conviction on section 302 of the Penal Code – that of obtaining by false pretences – rather than cheating. But in saying so, I accept that it might be that

either section could be employed, according to the circumstances of particular cases. Even in the present case the distinction is narrow indeed. Nevertheless, I shall substitute a conviction under section 302 of the Code by virtue of section 187 of the Criminal Procedure Code.”