Juma s/o Athumani v. R., Crim App. 915-D-67, 9/2/68, Biron J

Juma s/o Athumani v. R., Crim App. 915-D-67, 9/2/68, Biron J

Accused was convicted of simple theft [P.C. s. 265]. He had presented a cheque for payment at a bank, and was alleged to have received Shs. 300/- more than the amount indicated thereon, due to a cashier’s mistake. He denied having received the additional amount at all. When questioned on the same day at his office, he was found to be in possession on only shs. 110/-.

            Held: Accepting that accused did receive the additional amount, it is not clear that he discovered the mistake at the time he received the money. The point of law raised is “not free from difficulty and it is a hoary old one. There are numerous --- and not all of them reconcilable --- cases as to whether money legitimately and innocently received by mistake …. And subsequently converted by the receiver constitutes theft.” The same as the English Larceny Act, under which “there must be an animus furandi at the time when the defendant takes the property ……” [Quoting Moynes v. Cooper (1956) 40 Cr. App. R. 20]. The case of Russell v. Smith (1957) 41 Cr. App. R. 198, apparently to the contrary, is distinguishable; in that case, which involved sacks of coal, the defendant could “not be said to have received and  been in possession of (the goods) until he discovered their presence, and ….. there and then misappropriated them ….” The evidence in this case does not show a taking or misappropriation with animus furandi.