D6/290/2020 [2022] GHACC 265 (19 April 2022)

IN THE CIRCUIT COURT 3, HELD AT ACCRA WEDNESDAY THE 19TH DAY OF APRIL 202 BEFORE HER HONOUR SUSANA EDUFUL (MRS.), CIRCUIT COURT JUDGE. COURT CASE NO. D6/290/2020 THE REPUBLIC VRS 1. ISAAC KRAMPAH 2. ATO BONFUL JUDGMENT The Accused Persons have been charged on twelve (12) counts with the offence of Issue of False Cheque, contrary to sect. 313(A)(1) of the Criminal Offences Act 1960 (ACT 29) The brief facts of the case as presented by Prosecution are that, ‚the Complainant is the Human Resources Manager of Far East Merchantile Company Ltd on the Spintex road and resident of Amasaman. A1 Isaac Krampah is an Accountant and resident of Spintex road. A2 Ato Bonful is a businessman and resident of Dansoman. On 18/05/2016. 7/06/2016, 16/07/2016, 31/10/2018, 27/06/2018, 4/09/2018, 23/10/2018, 23/10/2018, 29/11/2018 and 11/12/2018 respectively. Complainant supplied groceries and toiletries to A1 and A2 totaling GHC 445.405.00. That A1 and A2 issued Global Access saving and loans and FBN Bank cheques with their respective face values. These cheques were presented at the bank and were dishonored due to inadequate funds in the accounts. After investigation, A1 and A2 were charged with the offence and put before this honorable court. The Accused Persons pleaded not guilty to all 12 counts levelled against then on the amended charged sheet dated 1st of September 2021. On December 21, 2022, the court in her ruling ordered Accused Persons to open their defence. The evidential burden and the burden of persuasion was placed on the Prosecution to prove the charge preferred against him beyond reasonable doubt in accordance with Section 13 (1) of the Evidence Act, 1975, (NRCD 323). Reasonable doubt was explained by Denning J (as he then was), in Miller v. Minister of Pensions [1947] 2 All ER 372 @ 373 as "...it need not reach certainty, but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice‛. Under section 11(2) of the Evidence Act, 1975 (NRCD 323), in criminal cases the burden of proof is on the Prosecution throughout. The Prosecution is required to produce sufficient evidence on a fact essential to establish the guilt of the accused, so that on all the evidence a reasonable mind could find the existence of that fact beyond reasonable doubt. In the case of the Accused except in cases where a statute throws the burden upon him, he is not obliged to prove anything. All that the law requires of him is to raise a reasonable doubt as to his guilt on the fact in issue. But then unless and until Prosecution has discharged the burden of proving the guilt of the Accused to the requisite degree, no burden will be shifted on to the Accused or assumed by him. Prosecution called two witnesses and tendered three (3) exhibits in evidence. EVIDENCE OF PWI PW1 was Eric Kwadwo Yeboah. He is the Human Resources manager of Far East Mercantile Company Ltd. According to PW1 the company deals in fast moving consumables such biscuit, soap blue band margarine among others and the company has conducted business with Accused Persons Company for the past five years. The Company supplies the accused Persons goods on credit and receives payment by both cash and cheque. According to PW1 from 2016 till the time the complaint was made to the police in January 2020 most cheques issued to PW1’s company using Global Access Savings and Loans or FBN Bank were dishonored when they were presented. The bank charged GHC5.00, for the dishonored cheques the accused persons even though were informed about what transpired at the bank they did nothing about the situation. The practice of A1 and A2 led to the accumulation of debt to the tune of GHC 445,405.00. PW1 attached Cheques and Customer Ledger Report – Exhibit A series – K series EVIDENCE OF PW2 PW2 was No. 6570 Detective Corporal Debora Awigah. She is the investigator in this case. She told the court that she was presented with 14 copies of various cheques issued by Far East Mercantile Company Ltd by the Accused Person (A1 and A2). The cheques were presented to Global Access Saving and Loans, Osu and FBN Bank Sawmill Branch but they were all dishonored. PW2 took Investigation caution statement and charged statement from A1 and A2 exhibits L, M, N and P respectively. The two Accused Persons admitted issuing the cheques but indicated to Complainants not to present the cheques as they did not have enough funds to satisfy the amount owed. Other exhibits tendered by PW2 are: 1. 2. 3. 4. Investigation Caution Statement of Isaac Krampa - Exhibit L Charge Statement of Isaac Krampa - Exhibit M Investigation Caution Statement of Ato Bonful - Exhibit N Charge Statement of Ato Bonful Exhibit P Counsel of A1 and A2 indicated to the court that A2 is relying on A’s evidence. The 1st Accused (A1) stated in defense that he is one of the directors of Household Market Company Ltd (HMC) a distributor of fast moving consumer goods and started trading with the complainant as far back as 2014. According to A1 the Complainant company had a credit policy of 21days credit to its customers and HMC enjoyed this policy throughout its relationship with the Complaint. It is the defence of Accused that Complainant operates a soft wear which logs out a customer and prevents an invoice from being issued to a customer’s account as soon as a cheque is dishonored. This means that whenever an invoice is dishonored the customer must make payment in full before new invoices could be raised for the supply of new goods. Accused company had a good working relationship with complainant’s company that it received awards in 2015, 2016, and 2017. In 2018 the Accused received Tata vehicle award from Complainant Company. Accused attached exhibits of certificate of appreciation from Complainant Company (HMC) informed Complainant any time they want presentation of their cheques issued postponed and there were times where due to miscommunication cheques were presented to the banks even though HMC had issued directives to stop its presentation at the bank. Section 313A (1) (a) (b) and (c) of Act 29 provides that: (a) A person who without reasonable excuse, the proof of which lies on that person, issues a cheque drawn on a bank with which that person does not have an account or (b) issues a cheque in respect of an account with a bank when that person does not have a reasonable ground, … to believe that there are funds or adequate funds in the account to pay the amount specified on the cheque within the normal courses of banking business or (c) with intent to defraud stops or countermands a cheque previously issued by that person, commits a criminal offence.’ To determine whether or not the offence charged has been committed the prosecution must prove the charge against the Accused Persons beyond reasonable doubt. The prosecution must prove that: i. ii. That accused persons issued cheque(s) That accused persons had knowledge that there was not enough funds in the account to pay for the cheque issued or iii. Did not have reasonable cause to believe that funds will be available in the account to pay for the value of the cheque issued. Section 313 (1) consists of three sub sections. Subsection (a) and (b) creates an offence similar to the offence of fraud by false pretenses under section 131 of Act 29 except that under (a) and (b) the burden of offering reasonable excuse rests upon the accused. But under section (c) the burden rest on the prosecution throughout. And the purpose for the cheque not going through must be an intent to defraud. An intent to defraud on the hand is defined under section 16 of Act 29, among other things as follows: ‘…an intent to defraud means an intent to cause, by means of the forgery, falsification, or the other unlawful act, a gain capable of being measured in money, or the possibility of that gain, to a person at the expense or to the loss of any other person’ In other words, Prosecution must demonstrate under subsection (c) that Accused gained some advantage when she issued the cheques. Further, Prosecution need to demonstrate that the cheques served as the consideration. Where no advantage was obtained then under subsection (c) no offence seems to have been committed as the offence is not one of strict liability and mere stoppage of a cheque could not constitute the offence. See the judgment of Wiredu J. (as he then was) in the case of SEIDU v THE REPUBLIC [1976] 2 GLR After reading the Prosecution’s case as a whole the Court identifies that the Accused Person has been charged under Section 313 (A)(1)(b) and so the Court will proceed to evaluate the evidence under the said section. What is the evidence on record to demonstrate that Prosecution has been able to satisfy any of the sub sections of section 313 of Act 29? Prosecution led evidence that Accused issued three cheques, which is Ex ‘A’ series to be cashed on the 23/07/2018 and 12/12/2018 and upon presentation all the cheques were dishonored. Indeed, Accused even confirmed in Exhibit ‘B’, his Investigative Cautioned Statement that he did issue the cheque. The court therefore finds that the first element of the issue of cheque has been satisfied by prosecution Did Accused Persons at the time of issuance of the cheques have reasonable cause to believe that monies would not be available in his accounts to pay PW1? Making a finding on this issue rests on the subsequent conduct of Accused Persons after issuing the cheques. Indeed under sub section (a) and (b) of the law, if it has been established by prosecution that Accused issued the cheques. The burden of offering a reasonable excuse rests on the Accused. From what ensued when PW2 was cross-examined by counsel for Accused Person: Q. Because they knew it was a security cheque that is why the company still went ahead to take cash from the Accused Person although they had the cheque? A. That is not so. Q. The Accused Person in his statement to you at the Police Station indicated that he made the Complainant aware that they should not present the cheques? A. That is so but when we met at the crime officer’s office that was not what happened From the cross-examination, the Accused Person seems to suggest that he did not authorize the complaint to cash the cheque because he issued the cheque as a form of security. So the burden shifts to the Accused Person to provide the Court with such evidence. The offering of reasonable excuse by the Accused Person’s evidence is that the amount was redeemed after the cheque was dishonored. When PW2 was cross-examined the following ensured; Q. Take a look at exhibit ‘B3’, that amount was reversed on 23/7/2016, if that is correct which means the cheque was returned. A. Yes, that is correct. Q. On 22/7/2016, you receive a cheques to the tune of GH₵20,435.00 which was to redeem the earlier cheque which was dishonored, is that correct. A. It is false. The cheque they are saying is redeemed got dishonored by the bank. The modules is what we are considering now. Q. Did you receive the amount of GH₵20,435.00? A. Yes, we received. Q. I am putting it to you that the GH₵20,435.00 which you received subsequently was to redeem the earlier cheque which was dishonored. A. It is still false. The offence as stated is committed when a person issues a cheque when the person knows he does not have the face value of the cheque in the his or her bank account and so the cheque is dishonored Section 313A (1) (b). From the cross-examination captured above Accused Persons have not denied that the cheque was in deed dishonored. All that Accused Persons are saying is that the amount owed was paid after the cheques were dishonored. The Accused Person have also in defence stated that they issued direct instructions to the Complainant not to present the cheques but they went ahead and presented the said cheques. Prosecution however denied this assertion. According to Accused Person the Complainant company operated a 21 days credit policy which means that when a cheque is not cleared the Company’s system automatically blocks that customers account and there was no way new invoices would be issued to supply goods subsequently. PW2’s response to this accession is this when he was cross-examined; Q. Is it your testimony that without the payment of the cheques that were dishonored you were still supplying goods to the Accused Person? A. We did supply based on post-dated cheques issued to us on all invoices and based on this we supplied with the expectation that the cheques given would be cleared. This means that the goods were supplied to Accused Persons based on Post- dated cheques issued to the Complainant Company. The Accused Persons have not given reasonable evidence to defend why the cheques were dishonored. I think that the duty was on the accused if indeed the anticipated money was not received to have called Pw2 to stop all the cheques and not to wait to be called that the cheques had not been cleared. I find as a fact that there was no prior arrangement between accused and Pw2 that the latter was to call to confirm the availability of money in the account before presentation. And I find accused explanation not reasonably probable. By the conduct of the Accused Persons after the issuance of the cheque the court concludes that they had no reasonable cause to believe that the cheques issued would be paid upon presentation and prosecution has established all the ingredients of the offence beyond a reasonable doubt. I find both accused Persons guilty of all 12 counts charged and accordingly convict them. SENTENCE Accused Persons have no previous criminal record as indicated by prosecution. The court has also taken note of the fact that both Accused persons are advance in age. The law instructs and does not destroy and in sentencing them I am not unmindful that Accused Persons needs an opportunity to make amends. As the offence is not of grave in nature and the complainant has the right to summon the accused Persons before the civil court for the recovery of his money, I will sentence 1st and 2nd Accused Persons to a fine of one hundred (100) penalty units or in default serve two (2) months imprisonment without hard labour on each count the sentences will run consecutively. PROSECUTOR DSP KESSE LEGAL REPRESENTATION NII APETU – PLANGE FOR ACCUSED PERSON H/H SUSANA EDUFUL (MRS) (CIRCUIT JUDGE) 11