Rex v Shah (Criminal Appeal No. 199 of 1940) [1941] EACA 36 (1 January 1941)

# COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and BARTLEY, $J.(Kenya)$

## REX, Respondent

#### $\mathbf{v}$ .

# SAYED HADI HUSSEIN SHAH, Appellant

## Criminal Appeal No. 199 of 1940

$\epsilon$

### Appeal from decision of H. M. High Court of Tanganyika.

Criminal Law—Fraudulent false accounting—Intent to defraud—False entries in banker's books made by teller—Tanganyika Penal Code, section 301 (a) and (b).

Appellant was charged with eleven counts of fraudulent false accounting • contra section 301 of the Tanganyika Penal Code. He was acquitted on the second. count and convicted on each of the other counts. He was a teller in a bank and counts 1, 3, 4, 5 and 6 referred to fictitious entries which he had made in the bank specification book and in his teller's jotter to the effect that he had a sum of silver coin in his possession and control which was Sh. 10,000 more than the amount of silver coin of which he had in fact possession and control. Counts 7 and 8 referred to entries made by the appellant purporting to show the payment of two cheques. on 3-5-40, whereas in fact no cash had been paid out on either of those cheques. on that day.

In counts 9, 10 and 11 he was charged with failing to make the entries: necessary on a sale by him of three currency notes each of £5 value. According to his books on 2-5-40 he had £5 notes to the value of £375, whereas on 3-5-40 $\cdot$ his books showed that he had only £360 worth, which was the amount he actually had on 3-5-40 in £5 notes. There was nothing to account for the discrepancy. There was no evidence that he had sold notes.

Held $(5-2-41)$ .—(1) That the appellant had been properly convicted on counts 1, 3, 4, 5, 6,. 7 and 8. Reg. v. Williams, 19 Cox 239, distinguished.

(2) That in the absence of any evidence of a sale of the currency notes in question the appellant should have been acquitted of fraudulent false accounting on counts 9,. 10 and 11.

Reg. v. Williams supra followed.

(3) That if the intention with which false entries are made is to conceal a fraudulent or dishonest act previously committed the intention would be to defraud and the case. would fall within section 301 of the Tanganyika Penal Code.

Dictum of Woodroffe, J. in Emperor v. Rash Behari Das. 35 Calc. 450 at 453,. approved and applied.

Burke for the Appellant.

### Stacey, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The accused, in thecapacity of teller of the Standard Bank of South Africa, Ltd., Tanga, was convicted by the High Court of Tanganyika of fraudulent false accounting on ten counts. Seven of the counts refer to making false entries in the bank books with intent to defraud contrary to the provisions of sections 301 (a) and (b) of the $\frac{1}{2}$ Penal Code. We are quite satisfied he was rightly convicted on those seven counts. It is abundantly clear that the entries were made and that they were false and weagree with the learned Chief Justice who tried the case that the facts of the caseare only reasonably consistent with an intent to defraud.

Counts 1, 3, 4, 5 and 6 are concerned with a sum of Sh. 10,000. Besides an admission by the accused to the Bank Manager and the Accountant that the entry with regard to this sum covered by the sixth count was a fictitious entry there is adequate evidence to prove that it was a fictitious entry and that the other entries relating to that sum were also fictitious entries. The entries regarding that sum purported to show that the accused had in his possession or under his control as teller a definite sum of money in silver when in fact the sum was Sh. 10,000 less than the entries represented. Mr. Burke, who said everything that was to be said for the accused, contended on the authority of Reg. v. Williams, 19 Cox 239, that while the evidence might support a charge of embezzlement, an offence with which the accused was not charged, it did not prove false accounting much less fraudulent false accounting. The facts in the case of Williams are clearly distinguishable from those in the present case. In the former case the account which formed the basis of the charge was clearly a true representation of the state of the account between the overseers and the inhabitants of the parish and the fact that the accused, who was a poor rate collector and kept the account, might have embezzled some of the money did not affect the question at issue. The account showed as the judgment at page 24.1 states: -

"It was, however, literally and exactly true; it would have been mis-" stated, if stated otherwise. It is said that this was a statement by the collector that that sum of money was in his cash-box, but that is not so. Regarded as a statement of account it was true. It showed a balance which showed the auditor an amount for which the overseers must account."

The case might be put simply in the following terms. A is employed to keep accounts between B and C and while so engaged embezzles some of the funds passing through his hands; his books when examined show a true and exact. account as between B and C of what was owing by one to the other. Obviously if A robs the cash box, that fact does not affect the correctness of the account. In the present case in contradistinction the accused on three occasions in the Bank Specification book and on one occasion in the teller's jotter, books which should have shown, *inter alia*, the amount of silver he had in his possession or under his control, entered a sum of Sh. 10,000 more than he actually had. Mr. Burke contended that of the counts relating to the sum of Sh. 10,000 count 6 alone could possibly be supported by the evidence. His contention was based on the fact that when the cash was checked on the 4th May it was found to be correct and that it was not checked again until the morning of the 9th May. Mr. Burke argued that it must be presumed that the cash was correct between those dates. Mr. Burke was clearly wrong in thinking that his contention, if accepted, would affect all the counts dealing with the sum of Sh. 10,000 except count 6. Counts 4 and 5 deal with entries made on the 8th May and these entries are equally with the entry covered by count 6 proved to be false by the check on the morning of the 9th May. Our view, however, is that all the counts dealing with the shortage of Sh. 10,000 are inter-related. The fact that the accused admitted he had made a fictitious entry of a deposit of Sh. 10,000 in his jotter on the 8th May and the fact that the same sum figures in a comparison of the entries in the teller's jotter with the entries in the Bank Specification book on the 6th and 7th May, point to one conclusion only, that the differences between the entries in the specification book and the jotter on the 6th and 7th May are part. and parcel of the same transaction as that represented by the fictitious entry of a deposit of Sh. 10,000 on the 8th May.

It is unnecessary for us to refer to the evidence which is very full and was fully considered by the learned Chief Justice and fully criticized in this Court on. behalf of the accused. It suffices to say that it establishes a case of false accounting against the accused on the counts to which we have referred.

The seventh and eighth counts refer to entries in connexion with two cheques of Sh. 2,000 each and with regard to these counts there was evidence adduced at the trial which was accepted by the learned Chief Justice that those entries were false and that no cash had or could have been paid out against those cheques on the 3rd May, the date on which they were entered in the books of the bank. As to the intent to defraud, a necessary ingredient of the offences charged, the judgment reads:

"It remains to deal with the question whether the accused in making the false entries referred to in counts 1, 3, 4, 5, 6, 7 and 8, and in omitting to make the entries referred to in counts 9, 10 and 11 had an intent to defraud, which means, in my opinion, an intent to deprive the bank of money, or to conceal or attempt to conceal, the fact that he had been using the bank's money for his own purposes. Evidence has been given to show that he has but little money of his own, and that he is indebted to Gulamali Merali Jiwa and to Mohamed Jamal Rawij to a considerable extent. Further, where it is proved, as I have found it proved in this case, that a person in such a position as the accused held has made a series of false entries, knowing them to be false, and involving large sums of money, the inference is irresistible that he did so with intent to defraud."

With this conclusion we agree in so far as the counts to which we have referred are concerned. And here we would refer to the case of Emperor v. Rash Behari Das, 35 Calc. 450 at 453, where Woodroffe, J., says:

"In my opinion, even if the intention with which the false entries were made was to conceal a fraudulent or dishonest act previously committed, the intention would be to defraud and the case would fall within section 477<sub>A</sub> of the Indian Penal Code."

(There is no material difference between that section and the section under which the accused was convicted). With regard to counts 9, 10 and 11, inasmuch as the accused was not proved to have sold any sterling bank notes he could not have been convicted of fraudulent false accounting on these counts. He may have stolen the notes, but as in the case of Reg. v. Williams this would not affect the question of fraudulent false accounting. The convictions and sentences on these three counts are quashed. In so far as the other counts are concerned, the appeal is dismissed. As the sentences on all counts were directed to run concurrently, the quashing of the convictions and sentences on counts 9, 10 and 11 will not affect. the period of imprisonment the appellant has to serve.