Kishorilal Dhaniram Aggarwal v. R., Crim. App. 238-D-68, 7/6/68, Saudi J.

Kishorilal Dhaniram Aggarwal v. R., Crim. App. 238-D-68, 7/6/68, Saudi J.

Accused was convicted of seven counts of obtaining goods b;y false pretences. [P.C. s. 302]. Three of the counts referred to transactions which took place on 27^th November 1964; two referred to events taking place on 28^th November; and two referred to events taking place on 29^th November.

He was sentenced to a total of five years imprisonment, the counts referring to each single day to run concurrently with each other but consecutively to the counts referring to the previous days. There was evidence that for many years accused had purchased goods from Mwanza merchants on credit. He then distributed the goods to smaller towns in the area and paid the Mwanza merchants by post-dated cheques. In the transactions in question, he issued post-dated cheques totalling Shs. 108,000/- and then flew to Bombay without depositing any funds in his bank account, which at the time had a balance of Shs. 88/95. The appeal was against the severity of sentence only, and it was alleged that accused was in poor health.

            Held: (1) Accused had for years purchased goods with post-dated cheques which he had regularly paid until the events in question, an in the circumstances he should have been charged with obtaining credit by false pretences [P.C. s. 305] rather than obtaining goods by false pretences [P.C. s. 302]. (2) As accused was represented by counsel both at the trial and on appeal, and as the matter of the error in the charge was not raised at the trial an the appeal is against sentence only, the complaint against the conviction cannot be entertained, but the error may be considered in assessing sentence. (3) The trial magistrate acted properly in ordering that the sentences on the counts referring to each single day run concurrently with each other the issuance of several cheques on the same day could be considered to be one transaction because the offences were of the same nature. It was also proper to order that counts referring to each successive day run the offences on separate days constituted separate transaction. (4) The total sentence should be reduced, “not necessarily on the grounds of … ill health,” but because the maximum sentence for obtaining credit by false pretences is one year, whereas the maximum sentence for. Obtaining goods by false pretences is three years. This does not constitute interference with the conviction itself. Sentences reduced to a total of three years imprisonment, the maximum that would have been permissible if accused had been convicted under section 305, and if the counts referring to a single day are to run concurrently.