Thomas Jorrat v. R. Crim. App. 99-A-68, 16/12/68, Platt J.

Thomas Jorrat v. R. Crim. App. 99-A-68, 16/12/68, Platt J.

            The appellant was convicted of obtaining credit by false pretences c/s 305 of the Penal Code and sentenced to 6 month’s imprisonment. The facts were that on 3 December 1967 the appellant obtained a loan of Shs. 20/- from Pascal Mali and in return gave Pascal a postdated cheque. It was a cash cheque dated 10 December 1967 and the appellant gave Pascal to understand that on that day there would be money in his account at the National Bank of Commerce, Uhuru Road Branch, Arusha to cover it. It was also accepted that the appellant did have an account at that Bank and that on the material date Shs. 12/- stood to his credit. The Bank statement also showed that during 1967 very little money had been paid into his account and that from time to time it had been overdrawn. It appears that the Bank had allowed the appellant to overdraw his account but generally speaking there was usually a small credit. When Pascal presented the cheque on 12 December 1967 the Bank refused to accept it and it appears from his evidence that the Bank officials must have though that it was a false cheque. As a result thinking that he himself was in some trouble Pascal reported the matter to the Police. On appeal the Republic did not support the conviction.

Held: “It was acknowledged that obtaining a sum of money by way of loan against a cheque can amount to obtaining credit (R. v. Pryce (1949) 34 C.A.R. 21). But the fault found with the prosecution by the Republic was that as this was a postdated cheque, it has not been proved that the appellant had made any false pretences of an existing fact. Reliance was placed on R. v. Maytum-White (1958) 42 C.A.R. 165. In that case the accused issued a postdated cheque in payment of some theatre tickets but he had no account at the Bank on which the cheque was drawn. In those circumstances it was held that the offence was proved. Lord Goddard remarked that having written the cheque the accused had represented that he had an account with the Bank mentioned on  the cheque although it was not necessarily a representation that he had the amount of money stated on the cheque in his account with the Bank. Therefore he was representing that he had power and authority to draw the cheque on the Bank but not that he had power to draw a particular amount. He observe “surely there is all the difference in the world between a man giving a cheque on a bank in which he has no account and giving a cheque on a bank at which he is a customer, although this is for too much. If he gives a cheque on his own bank and gives it in excess of the amount of credit which he has in the bank there must be evidence that he knew that he had not enough money in the bank.” That case is not of course on all fours with the present case; for here the accused did have an account at the National Bank of Commerce in Arusha which was in credit. He had given Pascal to understand that here would be money in his account on the date on which the cheque should be presented to cover the cheque. Pascal accepted that. There was therefore no false representation as to an existing fact that there was sufficient money to cover the cheque at the time that it was made. What was accepted was a promise to meet the cheque in the future. Unfortunately that promise was not made good; but that did not amount to obtaining money by false pretences. I should perhaps also add that the appellant may have been unlucky in that the Bank did not accept the cheque and allow the account to be over drawn to the extent of Shs. 8/-. I am no to be understood as saying that the Bank did not have the right to refuse the cheque; but from the Bank statement it appears that on other occasions the appellant had been allowed to overdraw his account for sums greater than that. There is a possibility then that the appellant could have expected the cheque to be met although of course he knew that he had to cover the overdraft eventually.” Appeal allowed.

Robber – Sentence of two years excessive for juvenile instigated by father.

See case no. 153.