The Republic Vrs Prosper Asong & Anor. [2022] GHACC 40 (27 September 2022)

IN THE CIRCUIT COURT HELD AT AMASAMAN – ACCRA ON TUESDAY THE 27TH DAY OF SEPTEMBER, 2022 BEFORE HER HONOUR ENID MARFUL-SAU, CIRCUIT COURT JUDGE CASE NO. D1/16/2021 THE REPUBLIC VRS. 1. PROSPER ASONG 2. ROGER BORKARVI _____________________________________________________________________ _________________ ACCUSED: A2 PRESENT PROSECUTION: C/INSP. AWUAH ANSAH ABSENT NO LEGAL REPRESENTATION JUDGMENT The Accused is charged with one count of falsification of accounts contrary to section 140 and one count of stealing contrary to section 124(1) all of the Criminal Offences Act, 1960 (Act 29). The facts as presented by prosecution are that the complainant Philip Appiah Mensah is the Chief Executive Officer of UDF Micro Finance. Prosecution says that somewhere in the year 2019, the company accountant during a routine audit of the company’s account detected that A2 who is one of the company's mobile bankers had fraudulently credited some amount of monies to A1 and other customers accounts amounting to GHȼ21,860.00 and had same withdrawn. Prosecution says that on 11th August, 2020, complainant made a report at the station and the Accused persons were arrested, charged, and arraigned before this court. Prosecution called three witnesses in support of its case. PW1 was Philip Appiah-Mensah, PW2 was Kwame Donkor and PW3 was D/L/Cpl. Theophilus Mensah. By a Ruling dated 27th September, 2022, A2 was called upon to open his defence to counts two and three. A2 testified on oath. According to him, he started working with UDF Microfinance in September, 2015 as a mobile banker. He stated that the Accountant called him and said he had realized that he had not been making account for some of the monies he takes from customers, so he asked that he goes through the records and the accountant informed him that it was an amount of GHȼ2,000.00 and he left. He testified that later the accountant called him and informed him that the amount was GHȼ6,000.00 and subsequently he informed him that it was GHȼ20,000.00 and so management has decided to use his salary to defray the debt. He stated that he was told that the commission on his collections will be given to him in order for him to use that to take care of himself. He testified that along the line, he was not given the commission therefore he worked for about three years without salary and commission. He stated that he was later called by the accountant who informed him that Management had decided to free him of the debt because of his hard work. He stated that he was shown entries for July and the fourth entry in March and by then he was not working with the company. As already indicated, count 2 is a charge of falsification of accounts contrary to section 140 of Act 29/60. It provides as follows: Section 140 of Act 29 provides as follows: “1) A clerk, a servant or a public officer, or an officer of a partnership, company or corporation commits a second degree felony who does any of the acts mentioned in paragraph (a) or (b), with intent to cause or enable a person to be defrauded, or with intent to commit or to facilitate the commission, personally or by any other person, of a criminal offence; (a) conceals injures, alters or falsifies a book, or an account kept by or belonging or entrusted to the employers or to the partnership, company or corporation; or corporation; or entrusted to the officer, or to which the officer has access, as an officer or omits to make a full and true entry in an account of anything which the officer is bound to enter in the account; or (b) publishes an account, a statement or prospectus, relating to the affairs of the partnership, company or corporation, which the officer knows to be false in a material particular.40(40) (2) For the purposes of subsection (1), “officer” means a clerk, a servant, a public officer or an officer of a partnership, company or corporation.” The particulars of offence indicate as follows: ‚ROGER BORKARVI AGE 24 YEARS: For that on 20th December, 2019 at Pokuase in the Greater Accra circuit and within the jurisdiction of this court, then being the mobile banker of UDF Micro Finance, you omitted to make a full and true entry in daily saving ledger card belonging to the said company to wit; you omitted to enter therein particulars of daily savings which you were bound to enter therein.‛ In the case of LOGAN & LAVERICK V THE REPUBLIC [2007-2008] SCGLR 76 it was held as follows: “Whatever evidence that was led in support should directly concern and be in line with the particulars of the offence as given by the prosecution.” The evidence led by prosecution to support this charge is the testimony of PW1 that in 2019 his regular auditing checks reveled that the Accused had fraudulently credited several customers accounts without depositing the amount collected amounting to GHȼ21,860.00. I note that there is before this court copies of saving ledger cards of three customers only. These are Exhibit A which is a Saving Ledger Card bearing the name Cadja Jeremie, Exhibit B which bears the name Cadja Din Jeremie, Exhibit D which bears the name Stella Hienne and Exhibits E ,F, J and J1 bearing the name Prosper Asong. There is no evidence before this court as to which amount exactly was supposed to be the true entry on the daily ledger for 20th December, 2019. A number of questions arise, are the several customers these three customers or there are more? Which daily savings ledger cards of the company exactly are referred to in the particulars of offence? What exactly was the daily savings on the date being 20th December, 2019 was the Accused to report which he did not? If the three named customers’ ledger cards are what the particulars refer to, exactly how much was paid by each customer and how much was suppressed by the Accused? The charge of falsification against the accused cannot succeed because in the light of the unavailable answers to the questions raised, it has not been proven beyond reasonable doubt that the accused omitted to make a true entry in the saving ledger card of the company on 20th December, 2019. Again, although PW1 states that an amount of GHȼ21,860.00 was fraudulently credited on several customers accounts, there is no evidence of the various sums collected from the various customers and the amounts that the accused was obliged to make entries of on the sales ledger card for 20th December, 2019. See THE STATE v. AGYEKUM AND AMOFA [1962] 1 GLR 442. As the evidence at trial fails to fill the gaps of the issues raised, the Accused is therefore acquitted on count two. Count three is a charge of stealing. The particulars of offence indicate that on 20th December, 2019 the Accused dishonestly appropriated cash of GHȼ21,860.00 the property of UDF Micro Finance. In support of this Prosecution tendered Exhibit G which is an audit report. The report indicates that Accused in responding to the issues of the audit process accepted that an amount of GHȼ20,178.00 was stolen by him in the year 2017 and management was using his commission to defray the said amount. It also states that as of 19th August, 2020 an amount of GHȼ21,860.00 has been uncovered. Attached to the audit report is a list of certain transactions from 10th August, 2015 till 17th April, 2018 totalling GHȼ20,178.00. Indeed, Accused person in his defence indicated that he was not paid a salary and commission from the year 2017 to defray an amount of about GHȼ20,000.00 which the accountant said the Accused was unable to account for. From the evidence, it is apparent that the Accused is not on trail for monies disclosed from the 2017 audit but monies alleged to have been stolen on 20th December, 2019. During cross examination of the Accused prosecution stated as follows: ‚Q: You did steal for the first time; you were forgiven because of that you went ahead and stole a second time. A: No that is not true.‛ It is therefore apparent that the attachment to Exhibit G is irrelevant in supporting the charge of stealing GHȼ21,860.00 on 20th December, 2019 against the Accused. PW1 testified that in 2017, he did an audit and found that Accused had not reported some cash collections. According to him, in 2019 his regular auditing checks revealed so many issues totalling GHȼ21,860.00. In proving this, Prosecution relied on Exhibit K. Exhibit K is similar to the attachment to Exhibit G except that it is for a period between 10th August, 2015 till 6th July, 2020 and consists of seven pages. The total amount on this document is GHȼ21,860.00. I note from Exhibit K that the total sum of GHȼ21,860.00 is derived from between 1st March, 2019 till 6th July, 2020. I note also that even though page 6 of Exhibit K seems to commence from 1st March, 2019, inclusive in these amounts are transactions from 2018. It is therefore unclear whether the amounts flowing from Exhibit G are included in Exhibit K. Again, from the said Exhibit K, I am unable to find a transaction for 20th December, 2019 which the Accused is said to have stolen. In REPUBLIC v. ATTORNEY- GENERAL AND OTHERS; EX PARTE OWUSU [1982-83] GLR 311 it was held that: “An audit inquiry was concerned principally with the examination of books of accounts, records of transactions, financial management procedures were in line with sound economic procedures and if so whether those procedures were being followed. Such an examination could best be done by an accountant… An audit inquiry was not a lis inter partes. In it, documents were the accusers unless they were forged. A person making an audit inquiry was not under any duty to adopt a procedure analogous to a judicial procedure. He was not required to determine questions of law and facts and he did not exercise a limited or judicial discretion.” It was also stated that though the audit inquiry was not a judicial process, those engaging in same had a duty to act fairly and therefore before they condemned or criticized a man, they should have given him a fair opportunity for correcting or contradicting what was said against him by giving him an outline of the charge. I note from the audit report dated 20th August, 2020 that PW1 stated that he invited the Accused and interrogated him about his findings about his fraudulent activities and he without coercion accepted that he did that because management was using his commission to defray an amount of GHȼ20,178 he stole in the year 2017. I note that PW1 and Accused both signed the attachment to Exhibit G. On the document the date underneath PW1’s signature is 10th August, 2020 and that underneath the signature of Accused is 11th August, 2020. I find also that page 7 of Exhibit K bears only the signature of PW1 dated 19th August, 2020. There is no evidence as to why Accused person’s signature does not appear on page 7 of Exhibit K. In a case such as this, the amount misappropriated and the date on which the said amount was misappropriated ought to be proven. In R. V. OKORODUDU (1947) 12 W. A. C. A. 129 at p. 130 “It is in these days generally conceded that great difficulty is imposed upon the prosecution in proving actual conversion in such cases as this, and the tendency is to restrict rather than to extend the application of the general rule from which such difficulty arises. It is clear that the mere omission to pay over moneys received by a clerk or servant does not suffice to show a conversion, nor does the mere fact of there being a deficiency as shown by the accounts, for he may have done no more than fail properly to enter items of disbursement in his books, or may have lost the money by negligence, or have spent it on his master's account. There must, therefore, be some evidence that the particular amount specified was misappropriated at a particular date and place.” In THE STATE v. HAGAN [1961] GLR 652 it was found that the conviction of an Accused was not an instance of general deficiency in the account, but rather of misappropriation of a specific amount at a particular date and place, and the misappropriation was satisfactorily proved. See also the case of THE STATE v. AGYEKUM AND AMOFA [1962] 1 GLR 442 where it was held that ‘a mere shortage in accounts without proof of how the shortage occurred is not enough to support a charge of stealing’. In this case I am unable to find evidence of misappropriation of GHȼ21,860.00 by Accused on 20th December, 2019. In YEBOAH AND OTHERS v. THE REPUBLIC (CONSOLIDATED) [1972] 2 GLR 281 the court held that: “Under section 202 (8) of Act 30, an indictment or charge must contain sufficient description of the time and place of the offence for which an accused is charged. Therefore, where events leading to the commission of a crime are diverse, the indictment or charge must specify the dates and places.” In the same Yeboah case supra, the court held that: “In criminal trials the guilt of the accused must be proved with that degree of certainty required by law. Thus, where the evidence for the prosecution contains such conflicts and discrepancies as to mar that degree of certainty such as in the instant case, an appellate court can quash the conviction of an accused on such evidence.” As a trier of law and facts, I find that Prosecution has fallen short of the degree of proof imposed by law, in view of the reasons advanced in this decision, the Accused person is therefore acquitted on count three. H/H ENID MARFUL-SAU CIRCUIT JUDGE AMASAMAN (SGD) 8