Rex v Monsesamy (Cr. App. 63/1931.) [1931] EACA 16 (1 January 1931)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya); PICKERING, C. J. (Zanzibar), and THOMAS, J. (Kenya).

## $_{\rm REX}$

(Respondent) (Original Prosecutor)

97.

## D. S. MONESAMY

(Appellant) (Original Accused).

## Cr. App. 63/1931.

(From Original Criminal Case No. 57/1931 of the High Court, Tanganyika).

- Criminal Procedure Code (Tanganyika), section 226 (b)—Power of Attorney General as to tendering evidence in High Court which was not adduced at preliminary inquiry. - $Held$ (4-7-31):—That the withdrawal of a charge at the preliminary<br>inquiry before the accused is called upon to enter upon his defence<br>does not debar an information being filed on the charge so with-<br>drawn and that the Att information to be drawn by him against a committed person is not fettered.

Master for Appellant.

Abbott, Crown Counsel, for Crown.

The appellant was originally charged before the Magistrate Section 224 of the with offences of forgery and uttering. Criminal Procedure Code (Tanganyika) provides that an authenticated copy of the written charge (if any) and the depositions shall be transmitted to the Attorney General; and section 226 provides that the Attorney General may call such witness or witnesses at the trial as he may think fit, notwithstanding that such witness or witnesses did not give evidence before the Court which committed the accused.

Master.-Section 85 of the Criminal Procedure Code provides that the Public Prosecutor in the Subordinate Court may with consent of the Court, or on the instructions of the Attorney General, withdraw from the prosecution, and that if such withdrawal is made before the accused person is called upon to make Quoted sections 235 (3), 226 his defence, he shall be discharged. and 250 of the Criminal Procedure Code. The notice served on the accused under section 226 Criminal Procedure Code in this case was too short and accused was embarrassed in his Submitted that there was no sanction for accused's defence. prosecution in High Court with offences of forgery and uttering. Accused was only committed on charge of uttering, but information contained counts of forgery and uttering although in Lower Court the charge of forgery was withdrawn.

Crown not called upon.

JUDGMENT.—The appellant Daniel Stanley Monesamy was originally charged before the Magistrate with two separate offences of forgery and uttering. The charge of forgery was. withdrawn and the accused was discharged. The evidence as tothe uttering was heard and the accused was committed for trial.

At the trial the information contained two counts: one being for forgery and the other for uttering. It was objected that the Crown could not frame a charge against an accused person on a count which had never been considered by the Magistrate and in respect of which the accused had not been committed. That objection was over-ruled and the accused was eventually convicted of the offence of forgery. It now becomes the first ground of appeal, viz.: that the Attorney General could not after committal add a count charging the appellant with forgery on the same facts on which the appellant has been discharged by the Magistrate.

It has not been suggested that the accused person had been called upon to make his defence to the charge of forgery when. it was withdrawn; therefore the discharge does not operate as a bar to subsequent proceedings.

No further proceedings were taken before the Magistrate, but, as stated above, the first count in the information by the Attorney General related to a charge of forgery.

Now after committal the various papers are sent to the Attorney General (s. 224 Cr. P. C.). If he is of opinion that the case is one which should be tried upon information before the High Court an information shall be drawn up in accordance with the provisions of the Code (s. 228). Every information shall contain a statement of the specific offence with which the accused is charged (s. 235). There is no suggestion that the Attorney General is limited to repeating any charge upon which the accused was committed or even that the Attorney General might not vary the charge from that upon which the accused was. committed. It is the duty of the Attorney General to frame a charge or charges from the evidence adduced before the The Attorney General is further entitled after Magistrate. notice to adduce additional evidence. Therefore the action of the Attorney General in this case in adding a charge of forgery wasfully justified by the Criminal Procedure Code.

The Attorney General gave notice that he intended to adduce aditional evidence at the trial. The name of the witness was. given to the accused and also an abstract of his evidence. Section 226 of the Criminal Procedure Code only requires notice to be given and does not specify what notice is required. Presumably such notice should be reasonable. If the accused had not considered that he had had sufficient notice he might have made an application for the postponement of the trial; but nosuch application would seem to have been made prior to the commencement of the trial.

At the trial an objection was made to the evidence being That was an attempt to exclude the evidence and not given. an attempt to gain increased time for the consideration of such evidence. The objection was rightly disallowed.

Section 226 of the Criminal Procedure Code further requires that a copy of the evidence should be supplied. By that language it is not intended that there should be a verbatim statement of the evidence. A precis or abstract is all that in practice is supplied. That was supplied in this case. Copies of the proposed exhibits were not supplied. The reason for putting in these exhibits was to prove the handwriting of the accused. Copies would not have assisted in this respect. If the accused had applied for an adjournment in order to inspect these documents there is no doubt that such would have been granted. And if that had been his only requirement even in the course of the trial itself an adjournment might have been granted. It does not seem that the accused wanted an adjournment. $\rm{He}$ did not ask for one and he did not obtain one. He preferred to attempt to make the alleged irregularity a means of excluding the evidence altogether. The notice and the copy having sufficiently complied with the requirements of the Code this ground of appeal also fails.

It is further urged that the findings of fact are against the weight of evidence. The trial Judge had the opportunity of seeing the witnesses.

At the trial he added a note after the evidence of Asmani Bin Said that he was a most reliable witness. He has compared the various writings and carefully considered all the evidence. There was ample evidence to support the conviction and it is noticeable that the accused did not choose to give evidence and incur the risk of being cross-examined. This ground of appeal also fails.

It is suggested that the sentence is too severe. The Court of Appeal does not lightly alter sentences that have been passed. It must be fully satisfied before doing so that the sentence is so excessive as to be unsustainable. The chief reason suggested by the appellant's counsel for a reduction of the sentence is that it is the accused's first offence.

Forgery is a serious offence and the Court is entitled to deal with it seriously. This forgery related to a cheque which is an important matter in a business community. Two offences were proved, viz.: the forging and the uttering of the cheque, but the same sentence of two years was passed on each count to run concurrently. The trial Judge has considered not only the offence but also all the circumstances, and this Court sees no reason to interfere with his decision.

The appeal must be dismissed.