Munubhai R. Patel v. R. Crim. App. 674-D-68, 2/5/69, Daff J.

Munubhai R. Patel v. R. Crim. App. 674-D-68, 2/5/69, Daff J.

This is an appeal by the Director of Public Prosecutions by way of case stated against the decision of the Resident Magistrate Dar es Salaam, acquitting the respondent on six counts of theft c/s 265 of the Penal Code. The prosecution case was that one Jeram Kara was employed by Messrs. Mtibwa Saw Mills Limited, and one their behalf he received cheques which it was his duty to ledge in the bank, the proceeds to be credited to his employers’ account. Kara was indebted to the accused in the sum of 3,000/- and when pressed for payment he entered into an arrangement with the accused whereby cheques which were drawn in favour of Messrs. Mtibwa Saw Mills Limited were credited to the account of the accused, the latter then using the monies so ledged as if they were his own. The magistrate had no doubt that had the accused been charged with stealing the cheques, and not the proceeds of these cheque, conviction was inevitable, the stumbling block to a finding of guilty, on all the counts preferred, being the two decisions cited by Mr. Kapila in his arguments before the court.  

The earlier of two authorities quoted was R. v. Davenparte 1954 I AER. 602 and reference to this case was made in the judgment of Rudd Acting C.J. (as he then was) in Shiv Kumar Sofat v. R. 1957 E.A. 840, which was the second authority relied on by Mr. Kapila. The gist of these two judgments and as argued by Mr. Kapila is that while the accused may have been guilty of either stealing the cheques or of receiving stolen cheque he was not guilty of stealing the proceeds of the cheques which is what the prosecution had alleged nor could he be found guilty on the charges preferred of stealing the cheque.

            Held: “With respect to all concerned it appears to me that the judgment of the Court of Appeal in Menzour Ahmed s/o Sheikh Soleh Mohamed v. R. (1957) E.A. 386, which was referred to by the learned judge in the Sofat case, holds the answer to the problem that was facing the learned magistrate ……. In that case the accused was convicted of theft of a sum of 3, 000/- although in fact he stole a cheque for that amount by converting it to his own use without receiving cash or other money in exchange for it. In upholding the conviction the court of Appeal said: “It seems clear that in England proof that a cheque has been embezzled does not satisfy an allegation in an indictment that money has been embezzled. But in Kenya “money” is defined in s. 5 of the Penal Code as including, amongst other things, cheques …… it is permissible to look at the definition of “money” in the Penal Code for the purpose of interpreting a charge under that statute of theft of a sum of money. Although the word “money” was not used in the charge, a “sum of Shs. 3,000/=’ is in fact money. The definition of “money “could therefore be imported into the charge so as to make the words “the sum of Shs. 3,000/-“ embrace a cheque for the sum of Shs. 3,000/-. Accordingly, the words, “the – sum of Shs. 3,000/-“sufficiently described a valid cheque for the amount …….” Accepting the distinctions enunciated in that extract as being the law applicable to the present case and in applying what was stated by the learned Vice-President and bearing in mind that the definition of money in section 5 of the Kenya Penal Code is similar to the definition in s. 5 of our Penal Code can it be said that the misdescription in the charges preferred against the accused prejudiced him in anyway? …. If the accused was prejudiced, which I hold he was not, then I would agree that a conviction would not be justifiable but in all the circumstances of this case it is patently clear that he was aware of the nature of the charges preferred against him and his defense was geared to meet those charges. The case is accordingly remitted to the trial magistrate with a direction to find the charges on all six counts proved and thereafter to deal with the accused according to law.”