Uganda v Elia Dragu (Criminal Revision No. 41 of 91) [1991] UGHC 76 (19 August 1991)

## CT THE REPUBLIC OF UGANDA in the chief magistrate's court of moyq CRIMINAL REVISION NO. 41 OF 91

UGANDA PROSECUTOR VERSUS

ELIA DRAGU :::::::::::::::::: ACCUSED

BEFORE: THE HON. MR. JUSTICE G. M. OKELLO

## REVISION NO. 41/90

The accused was charged with obtaining credit by fraud contrary to section 292 (a) of the Penal %de Act. He denied the charge but he was tried and convicted as charred. He was a first offender and was sentenced to either months imprisonment or to a fine of shillings two hundred (200/=,

It was during my usual inspection of the monthly Criminal case Returns that I was struck by the optional order of sentence which I consider was improper. I then directed that the relevant case file be called and placed before me for inspection. <his was done. On perusal<sup>t</sup> I am of the view that the conviction is not proper because it is not . supported by the evidence on record. I am also of the view that- the order of sentence which rives to an accused the option to either serve a prison sentence or to pay a ''fine is not known to our law and therefore illegal. A proper order would be to impose an amount of fine with a prl.s\*n term in default of payment of the fine.

When the relevant file was sent to the D. P. P. for his view, NandawvlaBetty, a State Attorney who wrote the opinion of the DPP in her letter Ref. 6/4/2 of 24/7/91 shared the view that the conviction is bad as it is not supported by the evidence on record. She therefore did not wish to be heard in the event of a Revision order being made.

It is trite law that for a conviction to be properly secured for any criminal offence, the evidence adduced must prove beyond reasonable doubt all the essential ingredients of the offence alleged\* In the instant case, the essential ingredients of the offence alleged are as follows:-

- (1) the accused must have incurred a debt or liability, - (2) in doing so, he must have obtained credit - (a) by false pretence or ' - (b) by any other fraud.

On record the evidence shows that the accused asked for a local . brew from the complainant who (save him two glass full of the stuff for shs. 100/=. That in the end the accused paid a fake or specimen 100/= note. There was no evidence of any pretence\* But. the complainant denied a>n oath that he ?ave to the / a fake or specimen Note. He asserted that he paid to the complainant a total of shs. 120/= which was the cost \*of the brew.' That he paid a two fifty shillings notes note and one twenty shilling note. The alleged specimen or fake note was never tendered in evidence.

From the above evidence, the prosecution have not discharged the burden of proving that credit was incurred by the accused either by false pretence or by any other fraud. Consequently the conviction based on t that flimsy evidence can not be allowed to stand. It is unsafe, It is therefore quashed and the resulting sentence is also set aside.

I perhaps need to mention here that an order of sentence which ,chose either to serve a prison gives to an accused an option to^entence or to pay a fine is not known to our law. A proper order should impose a term of fine with a fixed period of prison term in default payment of the fine.

Order: In case the accused pa-id the fine ordered, the same should refunded to him. *<sup>I</sup>*

> G. M. CKELLO JUDGE. 19/8/91.

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