Rex v Gella (Criminal Appeal No. 99 of 1947) [1947] EACA 31 (1 January 1947)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Nihill, C. J. (Kenya), Sir G. GRAHAM PAUL, C. J. (Tanganyika) and EDWARDS, C. J. (Uganda)

REX, Respondent (Original Prosecutor)

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ALIBHAI KASSAM GELLA, Appellant (Original Accused) Criminal Appeal No. 99 of 1947

## (Appeal from decision of H. M. High Court of Tanganvika)

Criminal Law—Uttering false documents—S. 342 P. C. Tanganyika—Coupons for wheat products—Guilty knowledge—Jurisdiction of Magistrate.

The appellant was convicted of knowingly and fraudulently uttering forged coupons contrary to section 342 Penal Code.

The appellant was a person working in a bakery and on a certain day he presented a large number of forged coupons for wheat products at the Rationing Office for the purpose of obtaining supplies of flour for the bakery. The learned Magistrate found that the forged coupons were so different from the genuine coupons that any person in the habit of handling genuine coupons could hardly have failed to notice the differences. The exact connexion of the appellant, however, with the bakery whether as proprietor, part owner, salesman, baker or employee was not established. The learned Magistrate held that the appellant's employment in and about the bakery having been established the onus lay on him to disprove that he was accustomed to handling wheat coupons and inferred guilty knowledge from his failure to do so.

On appeal to the High Court the appellant's conviction was upheld on the ground that the exact connexion of the appellant with the bakery was a fact especially within his knowledge; that under section 105 Indian Evidence Act as amended it was up to the appellant to give evidence to show that he was not employed at the bakery in a capacity which involved the constant handling of coupons; and that the appellant's guilty knowledge was rightly inferred from the fact that the appellant worked at the bakery and failed to disprove that he was accustomed to handling wheat coupons. The appellant appealed to the Court of Appeal for Eastern Africa.

Held (25-7-47).—That the prosecution had not adduced sufficient evidence of the nature of the appellant's employment as to make it possible for the Court to draw a reasonable inference that the appellant must have known that he was uttering forged coupons.

*Quarre* whether the Magistrate had jurisdiction to try this case, the coupons being "official documents"

Appeal allowed, conviction quashed

Case referred to: Fatch Ali Shah Mushhad v. Rex Criminal Appeal No. 44/39.

Childs-Clarke for the appellant.

Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by EDWARDS, C. J.).—This is an appeal from a judgment of the High Court of Tanganyika Territory in its appellate capacity dismissing an appeal from a conviction and sentence of twelve months' imprisonment with hard labour passed by the learned Resident Magistrate of the Uzaramo District, Dar es Salaam, on the present appellant for the offence of knowingly and fraudulently uttering to a Rationing Officer 2,840 false half-unit coupons and 4,475 false two-unit coupons for wheat products purporting to be genuine coupons originally issued by the Rationing Office, Dar es Salaam, contrary to section 342 Penal Code.

It is not in dispute that the appellant did present a number of false coupons to the Rationing Officer but we do not think that we need concern ourselves with the exact number of coupons proved to have been presented. In his judgment the learned Judge of the High Court said "The appeal was argued (and rightly so) on the basis that the false coupons were so different from the genuine ones that anybody in the habit of handling them must have recognized them, on sight, as not being the genuine article. Having examined the false coupons in Court (Ex. IX) and compared them with the genuine ones (Ex. XII) we agree with the learned Magistrate's finding that there are obvious differences which would have been immediately apparent to anyone whose employment entailed the continuous handling of these coupons. There are obvious differences in the size and boldness of the type used, in the colour of the ink and of the paper and in the method of perforation. So, if the prosecution could sufficiently prove that the accused was in employment entailing the constant handling of these coupons it would be a reasonable inference that he knew these coupons were not genuine". We have ourselves examined the coupons produced but none of us is so certain as the learned Judge appears to have been that there were strikingly obvious differences between the admittedly genuine ones and those which were alleged to have been false. As, however, this is a second appeal and as we accept the learned Judge's assurance that the appeal was argued before him on the basis stated by him, we do not feel disposed to labour this aspect of the case further. We respectfully agree with the learned Judge that it was for the prosecution to prove that the accused was in employment of a nature which entailed the constant handling of these coupons. The learned Judge went on to say "The evidence on this point is undoubtedly scanty". With this statement we fully agree. That evidence consisted of a statement made by the appellant to Inspector of Police Issa Fazal Dina as to the relative numbers of loaves of bread which could be baked in tin plates of three different sizes and as to the number of coupons required to be surrendered for loaves of different sizes. Fazal Dina further said that the appellant told him that certain loaves were sold at "10 cents each, the wholesale price". In this state of facts the learned Judge went on to say "The prosecution did not prove the exact connexion of the appellant with the bakery, whether the proprietor, or part proprietor, or salesman or baker. Nor did they prove the length of time the appellant had been employed at the bakery". With these remarks we also respectfully agree. The learned Judge, however, went on to hold that these facts were "especially within the knowledge of the appellant and that it would certainly have been difficult and perhaps impossible for the prosecution to give evidence on those facts". It is here that we part company with the learned Judge. We are unable to understand how it was impossible for the prosecution to prove that the accused's employment in the bakery was of such a nature as necessarily to entail the constant handling of these coupons. In other words, we do not think that the prosecution adduced sufficient evidence of the nature of the accused's employment as to make it possible for the Court to draw a reasonable inference that the accused must have known that he was uttering forged coupons. Had they done so, no doubt any answer by the accused or any failure by the accused to give evidence or make a statement would have emphasized the strength of the prosecution case. We decide this appeal on the sole ground that, in our view, the prosecution did not adduce sufficient evidence to establish the inference of guilty knowledge beyond reasonable doubt and therefore failed to prove the charge against the appellant.

We, accordingly, deem it unnecessary to consider the effect of section 105 Evidence Act, 1872, as applied to Tanganyika by section 2 Indian Evidence Act (Modification) Ordinance, 1936, nor must we be taken to cast any doubt on the soundness of the decision of Dalton, C. J., in Criminal Appeal No. 44/39, Fatch Ali Shah Mushhad v. Rex. Indeed, in our view, all that seems to have been laid down by the learned Chief Justice when quoting from Art. 96 of Stephen's "Digest of the Law of Evidence" was that, once the prosecution had adduced the necessary amount of evidence, the onus would then lie on the accused to rebut the suggestion that he was in a position from which guilty knowledge could be inferred. As we have said, in the present case we do not think that the prosecution did adduce the necessary amount of evidence.

For these reasons the judgments of both Courts below are set aside and the conviction of the appellant is quashed. The appellant will be forthwith set at liberty.

We cannot leave this case without remarking that it is at least doubtful whether the learned Resident Magistrate had jurisdiction to try the case. If, as we think must be conceded, these coupons were "official documents" it would appear, from a scrutiny of Division VII to the First Schedule to the Criminal Procedure Code, and in particular paragraph 5 of the Schedule, that the only Court which had jurisdiction to try the offence was the High Court (see sections 4 and 5 Criminal Procedure Code). As, however, neither this question of jurisdiction nor the point whether the coupons are official documents was raised in either of the Courts below or before us, and in view of the success of the appellant's appeal we find it unnecessary to make any definite pronouncement thereon.