Rajiv Kumar v Uganda (Criminal Appeal No. 281 of 2021) [2022] UGCA 255 (14 October 2022)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CRIMINAL APPEAL NO. 281 OF 2021 CORAM: (Bamugemereire, Madrama, Luswata, JJA)

# **RAJIV KUMAR SABHARWAL .................................... VERSUS**

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UGANDA. .................................. [Appeal from the Decision of Jane Okuo Kajuga J, dated 25th November 2021 at the **High Court of Uganda sitting at Kololo)**

### JUDGMENT OF THE COURT

The appellant was indicted and convicted on one count of Embezzlement contrary to **Section 19 (b) (iii) of the Anti-Corruption Act, 2009**, Forgery contrary to Sections 342 and 347 of the Penal Code Act CAP 120, and 15 Uttering a False Document contrary to **Section 351 of the Penal Code Act** CAP 120.

# Background

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The brief facts as ascertained from the lower court record were that the Appellant and a one Rajendra Kumar (the Complainant) formed a 20 company, Global Wire Industries, with the aim of engaging in manufacture of binding wire which has multiple uses in the construction industry. It was agreed that Rajendra's main role was to send machinery and raw materials from India since he was based in India. On the other

hand, the Appellant's sole role was to manage the daily operations of the 25 company in Uganda. When Rajendra happened to return to Uganda, he discovered that the Appellant had on several occasions forged his

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signature and withdrawn largc sums of money from the comPany account. It was also discovered that sevcral comPany resolutions werc made bearing forged signatures of Rajendra. The mattc'r was reported to police and the cheques were submitted to a handwriting for analysis. It was establishcd that the only authentic signature on the chcques belonged to thc appellant. On the othe'r hand,, Rajcndra's signature appearing on the cheques was forged. It was on that basis that the appellant was charged with offences of Embezzlement, Forgery and Uttering Falsc Documents. At the beginning of the trial, the appcllant plcaded not guilty to a total of 66 counts. However, in the course of the trial and aftcr thrce prosecution witnesses had tcstified against the appellant, he changed his plea to guilty. Having pleaded guilty to all the 66 counts, he was convicte'd and sentenccd to a term of 4 years' imprisonment for Embezzlcment, lyear imprisonment cach for the counts of forgcry and uttering a false document to run concurrcntly with a compensation order of UGX 556,000,000/= Five hundred and Fifty Six million shillings) to be paid to the Co-dircctor. Dissatisficd, the Appellant appealed against both conviction and sentence.

# Grounds of Appeal

20 1 The learned Trial Judge erred in law by failing to follow the proper procedure for recording a plea of guilty (to convict and sentence the appellant) thereby occasioning a miscarriage of j ustice.

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2. The learned Trial judge erred in law and fact when she sentenced the Appellant to 4 years' imprisonment, which is excessive in the circumstances and imposed an unjustified compensation order in disregard of extenuating factors thereby occasioning a miscarriage of justice.

#### Representation

At the hearing of the appeal the Appellant was represented by Mr. Henry Kunya whilc the Respondent was reprcsentcd by Ms. Josephine Namatovu, Assistant DPP from the Officc of the Director of Public Prosecu tions. 10

# T A ellant's e

'15 In respect of Ground No. 1, Counsel for the Appellant submitted that the procedure adopted by thc Trial Judge whilst recording the change of plea from one of not guilty to one of guilty was erroneous and occasioned a miscarriage of justice. Counsel noted that when the matter came up for trial on 8d' Fcbruary 2027, the appellant pleaded not Suilty to the indictment but on 23"r November 2021, when prosecution had le'd evidencc of 3 witncsses, Mr. Mackay, counse I for the appellant addresscd the court informing the Trial Judge that his client intendcd to change plca. Counsel submitted that after reading cach count on the indictment, the appellant was askcd as to whether he understood thc charge read out to 2t)

him and after confirming it to be the casc, a ple'a of guilty was subsequently entered against him for each and every count and thc trial ludge went further to entcr a blanket plea of guilty on all counts'

Counsel further submitted that the State Attorney then stated the' facts pertaining to the alleged offcnces and upon the appellant confirming that hc understood the facts and that they were true, he was ultimately convictcd on his own plea of guilty on all the 66 counts in the indictment.

Counsel referred to Adan v R (1973) EA 445 on the procedure for rccording a plca of guilty. He averred that therc was a failure by the trial fudge to explain the salient elements of the offcnces for which the appellant was indicted' He added that this procedural steP was critical and that omitting it was not only prciudicial to the appcllant but also rcndered the whole proccss an illegality. Counsel invited this court tcr allow this ground on the basis that the plea of guilty was not properly entered leading to a wrong conviction. 15

Regarding ground No.2, counscl for the appellant argued that the sentence's meted out by the trial ludge especially the 4 years' imprisonment in respcct to count no.1 and the. attcndant compensation order were manifestly harsh and excessive.

Counsel submitted that had the trial |udge givcn due consideration to thc mitigating factors and othcr compelling revelations from thc evidence of the prosecution witnesscs on the record, she would not have passed such scvere sentences let alonc the order for compcnsation as she did' 20

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Conscquently, he praycd that the appellant's conviction bc quashed and thc impugned sentenccs and compcnsation orde r bc sct asidc'

# The Res ondent's Case

5 In reply to Ground No. 1, counsel for the respondent argued that the plea of guilty was properly taken by thc trial court after satisfying itse'lf that the appellant had understood the charges he was pleading to' Counsel submitted that thc Purposc of the procedural step in Adan v R (supra) which requires thc trial court to explain the clemcnts of the offence to the accused is for thc court to intentionally ensure and satisfy itself that thc accused person has understood the charges and the consequenccs of the charges to which he or shc pleads guilty. l()

It was counsel's submission that thcre was a sufficient evidence at trial to provc that the appellant had inde'ed understood the charges he was pleading to and that his decision to changc plea was informed by this unde'rsta nding.

Counsel further asserted that the cvents that preccded the appcllant's change of plea were based on the information counsel for the'appellant rclayed to thc court when he stated that the appcllant intendcd to change plea. Counscl furthered argued that thc change of plea having followcd three critical prosecution witncsses gave the impression that the appellant needcd to mitigate his losses, and attract morc sympathy from the trial court. Counsel added that the appellant had not only reached the decision to plcad guilty aftcr secking lcgal advice but personally madc a conscious

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well-informed decision to plead guilty well aware of the conseque'nces of his action. Counsel submitted that before she proceedcd to rcad out prior to soliciting a specific response to each of them, the Trial Judge found that the appellant had sufficiently consultcd his counsel and had understood thc mc'aning of a plea of guilty and undertakcn it willingly.

In further reply counsel for the respondent submitted that the brief facts of the case were read out to the appcllant and he confirmed that thcy werc truc and corrcct. It was counsel's argument that thc PurPose of cnsuring that the accused's plea of guilty was uncquivocal was spccifically achieved through the trial judge fully reading thc charge's once again and the elaborate facts which the appellant confirme'd to have understood before eventually confirming them as being correct. Counsel added that the facts together with the particulars of the offences in the indictment that was read out to the appellant clcarly cmbcdded the clements for each of the offcnces, which thc appcllant confirmed to have committed.

Counsel contcnded that contrary to what counsel for the appcllant submitted about the trial court entering a blanket plea of guilty on all thc 66 counts, the record shows that the chargcs were individually read out to the appellant and he scparately pleaded to each one of them and court scparately convicted the appellant on each count and specified the offences and counts in respect of which the appellant was convicted.

Counscl concluded that this honourable court be pleased kr uphold the appcllant's conviction as valid undcr S.53 of the Trial on Indictments Act.

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In response to Ground No.2, counsel for the respondcnt submitted that thc sentences were arrived at by the trial court after a detailed and cautious consideration of the mitigating and aggravating factors' It was counsel's submission that the appellant pleaded guilty to embczzlement of UGX 1,1-13,955,8591=. Having done so it is strange for him to exPect prosecution to adducc further evidence to Prove facts he had already

admittcd.

The first count of embezzlement carries a maximum sentence of 14 years and the other counts carry a maximum sentence of 3 years' imprisonment.

On the issue of compensation, counscl submittcd that S. 125 (1) of the Trial on Indictments Act, which emPowers the High Court to award compensation is not limited to the complainants as the bencficiaries of compensation in criminal matters but is all encompassing and covcrs any person who has suffe'red loss as the result of the offcnce with which an accused person has been convicted. l0 l5

Counsel contended that the trial Judge was justified in ordering compensation to the appellant's co-director (PW3) who had lost his equity in the company as a result of thc criminal activities of the appellant which resulted into a conviction and sentence. Counsel submittcd that thc compensation order was bclth lawful and justificd. It was counscl's submission that the sentence was commensurate to thc circumstances of this casc. In conclusion, counsel prayed that this court upholds the conviction, sentence and compensation order.

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# Dut of Court

This court as a I { Appellatc Court has discretionary duty to rcappraisc' the evidencc contained in thc record of proccedings and all other material that was placed beforc the trial court. It is the duty of this court to subjcct

.5 such evide'ncc to a fresh and exhaustivc scrutiny and draw its own infercnces on matters of fact bcaring in mind that it has ncithcr heard nor secn the witncsses testify unlike the Trial Judgc. (See Pandya v R [19571

EA 335, and Kifamunte Henry v Uganda SCCA No. 't0 of 19921.

# Consideration of the Court

l0 In Cround No.l, the appcllant faults thc lcarncd Trial Jtrdgc for failing to follow a propcr procedure in re'corcling a plea of gr-rilty.

Thc procedurc for rccording a plea of guilty was scttlccl by Spry Vp in Adan v Republic (supra) in thc following tcrms;

"When a person is charged with an offence, the charge and the particulars thereof should be read out to him, so far as possible in his own language, but if that is not possible in the language which he can speak and understand. Thereafter the Court should explain to him the essential ingredients of the charge and he should be asked if he admits them. If he does admit his answer should be recorded as nearly as possible in his own words and then plea of guilty formally entered. The prosecutor should then be asked to state the facts of the case and the accused be given an opportunity to dispute or explain the facts or to add any relevant 15

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2o facts he may wish the court to know. If the accused does not agree with the facts as stated by the prosecutor or introduces new facts, which if true might raise a question as to his guilt, a change of plea to one of not guilty should be recorded and the trial should proceed. If the accused does not dispute the alleged facts in any material respect, a conviction should be recorded and further facts relating to the question of sentence should be given before sentence is passed."

10 For a conviction to be bascd on a plca of guilty, the plea must be r-rnecluivocal. Whcre the plca taken does not appcar to bc uncquivocal the conviction must bc quashed see: R v Tambukiza s/o Unyonga [19581 EA 21.2). \Ne have borne the above principlcs in mind while rcsolving this appeal.

15 We obscrvcd fnrm the court record that dr-rring trial, the- appcllant pleadcd not guilty to 66 corrnts but aftcr threc pmsecution witnesses had givcn cvidence, he dccided to changc his plca kr that of guilty. For casc of rcfcrcncc wc wish to rcfcr to thc record;

> Rajiv Kumar: I have met and consulted with my new lawyer Robert Mackay. I understand and I want to plead guilty. That pleading guilty means that I accept all the charges against me and that the court will enter an appropriate sentence. I know its court that will enter the sentence. This isn't a plea bargain. I have willingly, freely and voluntarily taken the decision to accept the case and change my plea.

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Court: I'm satisfied that accused has understood the plea of guilty and undertaken it willingly. The charges will therefore be re-read to him, and he will take plea again. Charges read in English which accused understands.

Count 1: Embezzlement

Read out

Accused: I have understood the charge, it is true.

Court: PG entered.

## Count 2-Count 56...

Wc shall not reproducc the entire rccord but we observed that thc 66 counts werc rcad out to thc appcllant and he confirmcd that hc understood the.m. Thc trial court entcred a plea of guilty on all counts distinctivc'ly. Thereafter, thc bricf facts wcrc read out by the state. 10

Rajiv Kumar: I have understood the facts. The facts read out are correct.

Court: the accused, Rajiv Kumar Sabharwal is accordingly convicted on his own plea of guilty on all the 66 counts in the indictment, for the offences of Embezzlement contrary to S. 19 (b) iii of the Anti-Corruption Act in count 1. The counts of Forgery contrary to Sections 343 &,347 of the Penal Code Act on counts 2,4,6, 8, -1.0, 1.2, 1. 4, 76,'1.8, 20, 22, 24, 26, 29, 30, 32, 34, 36, 39, 40, 42, 44,46,48,50,52,55,57,59,62,64 and the offence of uttering false documents contrary to section 35 of the Penal Code Act in the

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remaining counts 3, 5, 7,9, 77, 73, \5, 17, 19, 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, 43, 45, 47 , 51., 53, 54, 56, 59, 60, 61., 63, 65, 66.

Basing on the above rccord therc is evidence that thc proccdure for recording of a plca of guilty as laid down in Adan v R (supra) was followed. The rccord clcarly shows that the appellant undcrstood all thc charges against him in all the 66 counts, which wcre exclusivcly rcad out to him and he pleaded guilty.

Wc wish to refer to Sebuliba Siraji v Uganda CACA No. 319 of 2009 where this court held that;

"The record clearly indicates that the indictment and facts were not only put but fully explained to the appellant. His answers to all the stages of the proceedings indicate that he understood what was said to him, its consequences, and what the proceedings were all about. Moreover, there is no protest on record from his counsel to indicate that the appellant did not understand or misunderstood anything, In the premises/ we conclude that the conviction was valid under section 63 of the Trial on lndichnents Act and uphold it for being unequivocal." I0 1.5

In the case before us, thc appellant indicated that he had undcrstood all thc charges against him. The appellant was represcnted by a lawycr who did not protcst, on the contrary hc cncouragcd his clicnt to changc plca and informed the court as much. This is an indication that the appellant plcadcd guilty from an informed perspective. In the. circumstances, we are. satisficd that the plca of guilty was clcarly unequivocal. 20

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As a result, we find that the conviction was valid trnder Section 63 of the Trial on Indictments Act. Cround No. 1 of the appcal lacks mcrit and thcrefore fails.

5 In considering Ground No.2, wc have. carcfully takcn into account thc arguments of counsel on whcthcr the scntcnccs of 4 years' imprisonment for Embczzlcment, I ycar imprisonment cach for the counts of forgery and uttering false docr-rments and the attcndant compensation orclcr wcrc nra n ifcstly harsh and exccssivc.

Section 2 of the Trial on lndictment Act providcs for the sentencinpl powcr of thc High Court in the following tcrms:

2. Sentencing powers of the High Court

- 1) The High Court may pass any lawful sentence combining any of the sentences, which it is authorized by law to pass. - 2) When a person is convicted at one trial of two or more distinct offences, the High Court may sentence him or her to the several punishments prescribed for them which the Court is competent enough to impose, those punishments, when consisting of imprisonment, to commence one after the expiration of the other in such order as the Court may direct, unless the Court directs the punishments to run concurrently. - 3) For purposes of appeal, the aggregate of consecutive sentences imposed under this section, in the case of convictions for several offences at one trial, shall be deemed to be a sing/e sentence.

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In dcaling with this grotrnd, we havc be'cn mindful of the often-quoted dicta below:

"An appropriate sente'nce is a matter for the discretion of the scntcncing Judgc. Each casc presents its own facts in which a Judge exercises his discre.tion. It is thc practicL. that as an Appellate court, this court will not normally interfcre with the discretion of thc sentencing Judge unlcss thc scntcnce is illcgal or unlcss court is satisfied that thc sentencc imposed by thc trial judge'was manifcstly cxccssive as to amount to an injusticc: Scc Ogalo s/o Owoura v R (1954) 1 EACA. 270 and, R v Mohamedali jamal [19481 1 EACA 125. The. sentences imposed by thc trial court in the instant matter were within the sentencing rangc prescribcd by law. Section 19 of the Anti-Corruption Act providcs for a maximum sentencc of 14 years for the offcnce of Embezzlement, Forgery provides for a maximum of 3 years'

imprisonment and thc offcnce of uttering falsc documents attracts a maximum scntence of 3 years imprisonment. l5

The Trial Judge reasone.d that the fine payablc under Count 1 as against thc cmbezzled money which amounted to Uganda Shillings One billion one hundred thirteen million nine hundred fifty-five thousand eight hundred fifty-nine ( UGX 1,113,955,859/= ) was not sufficiently punitive and found that indeed a fine would not mect the ends of justicc. The Trial Judge considcred the fact that the appellant had bee.n convictcd of othcr offences other than cmbezzlement; was aged 56 yc.ars at sentencing; and did not seem to suffer from any grave illncss. Thc Trial Judgc further

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considered the sentencing guidelines in Part IV of the third sche.dule, which provide the sentencing rangc for Embezzlement bctween 2-14 years. The mitigating factors were equally considered. The' trial Judgc took note of the fact that the'appellant had bcen granted bail on the first day of plca till conviction thus there was no period spent on remand. Shc imposed a scntcnce of 4 years' imprisonmcnt on count 1 (Embezzlement) and 1 year imprisonment in respect of each of the counts of forgery and uttering false documents to run concurrently. Wc find that thc sentencL.s imposed were within the scntencing rangc thus were appropriate in the 10 circumstances.

On the issue of compensation, the trial judge rejected the compensation order to the company reasoning that the convict was thc managing director of the company and therefore an order of compensation to the company would unjustly enrich him and thus would not mcet the cnds of justice. She instead ordered that the compensation of Uganda Shillings

Five Hundred Fifty-Six Million (UGX 555,000,000) be paid to the 2\*i director; Rajendra Kumar Jayantilal Thakkar who she bclicvcd directly suffercd financial loss as a rcsult of the appellant's fraud.

We havc carcfully studied thc court record and noted that PW3 the codirector clearly stated that his contribution to the company was machinery and raw materials, which he would send to the appcllant and in return, the appcllant was to sell the materials and save thc in the company and later repatriate some of profits to him. He also stated that he reccived approximately USD \$110,000 from the Appellant. In his 20

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testimony, he stated that his complaint was non-receipt of profit as a director and also money for received from selling the supplies. However, no roundcd figure was given.

The Trial Judge ordered for half the' amount of the embezzled funds that s is; UCX 556,000,000/= to be paid to the Co-Director which we find in our view justifiable given the circumstances of this case.

In conclusion this appeal fails and stands dismissed with the following orders;

- 1) The Appellant's conviction is upheld. - 10 2) The' Appellant's sentence is upheld. - 3) The compensation order of UGX 556,000,000/= is maintained.

We so order.

Dated at Kampala this. v+s Day of 2t)22.

Hon. Lady |ustice Catherine Bamugemereire Iustice of Appeal 2l) on. r. Justice Christopher Madrama Justic :[" 2S Hon. Lady ustice E K Luswata fustice of Appeal