Mathata Peter Massenge vs Republic (HC Criminal Appeal No. 195 of 1977) [1978] TZHC 271 (5 April 1978)

1i I IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTICN (Tabor,a Registry) (Hc) CRflINAL JIEAL NC. 195 OF 1977 ORIGINAL CRiMINL CASE NC. 876 OF 1977 OF THE DISTRICT CCURT OF S.INANGA DISTRICT AT SHINyANGA Beforc.:.B. P. Loshi, Esq.,. Resident Hagistrate. MATHAIk PETER MASSENGE' . ... ......... APPELLANT yersus TH REPUBLIC RESPONDENT CH.JGE: Counts: 1, 4, 7, 10, 13, 16, :22, 25, 28, 31 & j4 - Forgery c/s 339: of the Penal Code. 2 9 5', 8 1 ii', 14, 17, 20, 23, 26, 29 1 . 32 and. 35 - Uttering a falè document c/s 3.42 of the Penal Code.' ' 3 1 6 9 9 1 12 9 15, 1-8 21 0 24 30, 33, 36 1 37 and 38 - Stealing by Public Servant' c/s 270 and 265 of the Penal Code. . NAPIG.ANC, J: The accused MATHAIA PETER MASSENGE, now the appellant, was Chjed with and convidted of thirty eight offence.s in the district 'c&urt at Shinyanga. Thirty six of those counts Comprised of treble sets of forgery C/s 338 Of the Penal Code, Uttëx±nc a1se doournent c/s ''2. of the Penal Code and Stealing by public servant C/ss 265 and 270 of the Penal. Code. It was common grQnd that at the material period the accused y4p employed, in the Public 'Serviäe'. ' He was an accoun's clerk in the' office of 'the Mwadui Divisional Police Commander. There. h. used to .prepare payment vouchers ; enter them in :the.votebook, write cheques, prepare rnonth],y return of the roney expended, forward the returns to headqurters at Dar es 5 alaam together with' the rel"evant payment vouchers: and ,Vote Book summaries., SUch, in brief, were his dutieà 'Until he was, suspoaded and:brought to court on' the charges. • It wa 'also common ground that 'one ,Lemomo (PW3) was the warrant 'holder of the funds: appropriated to the office of the .". ..../2

Divisicna]. Police Commander (D.P.C.). He and PW. 2 Ulomi and three other officers, who did not include the accused, were the checpe signatories. The office of the D.P.C. had an acunt withthe Shinyanga branch of the Natidnal Bank of Conmeree (N.B.C.) and as usual that bank had acard bearing the specimen signaturesof all the above five signatories. Evidence was led, and not challenged that on 11/11/76 a query erinating from headquarters was received at the office of the 1).P.C. and it concerned several.cheaues which accused had despatchbdto headquarters.. It poixitedout that payment vouchers had not accomapnied those cheques and called upon .the D.P.C. to forward the s.atae. Jtccordingly, P;,2 who dealt with th cuery instructed th. accused to send the relevant vouchers under cover of a letter. The accused wrote a letter saying that the payment vouchers were being sent and brought 'it to P\iJ.2 fc1 Signatjro. But 'he did not showPW.2 the paythent Vouchers. PW..2 therefore deplined to, sign the letter and quired the accused to bring the payment vouchers for his perusal. Subsequently, the accused caine and informed him that the payment vouchers had disappered. This aroused the suspiicn of PW.2 and put..him on inquiry as to whether every- thing was well with the accounts of that office. In the process, all the chques with which the query was concerned were traced either at the bank or in the same office. They were scrutinised and found to bear different amounts from those shown on the counterfoils and in the cash book.: I That was not 'the only discrepancy. For while the folios read that the aniounts l were payable to the D...i.C, the corre-.. sponding countcrfoils indicetcu th 1 t th. a ounts were paid to •. .differentpersons - There waa no sp.ute that all tho Cheques, the.counterfojls and the entries in theca.sh book hadbeen written, or made by th accused. . . . Those cheques carried signatures on both their front and back oices purporting to. be. those of P.2 and PW..3, twoof th signatories. . The prosecuti o n:s ou ght to prove that 1:.2 and PW.3 were not the authors of those signatures and that it was the accused who actually signedthe choaues in the flames of tha two witnesses and that :he did that without their knowlodge or authority.. Both the witnesses denied signing the che.ucs.( P.2 went on and' said thatsoine of the cheques, six innumbder, were appartlywritten and signed when he was away ci leave at 1 :oshi. '-'hat allegation ,wa,s not disputed. As for Pf)3, he also alleged and it was hot. disputed that One • ,. . .13

of the checues was drawn an( signed while he was in Zanzibar attending a conference. The oviderce of a handwriting expert, PW.iO S.S.P. Bunga, tended to lend weight to the evidence of these. :iitnossos arid to the prosecution case. dunga, stated -. that, in the course of his duties and upon a request from the Shinyanga Police he exained the cheaues as well as the specimen handwritings, of PW.2 1 P 1 .3 and the accused. He found out that although the signatures on the chequ's had pictorial resemblance to. the specimen signatures of PW2' and Ph .. 3, the, letter formationswere different. Asrogarcis his comparison of the .signEtures on thecheques with the specimen signatures provided bythoaccused,.he said that ho detected, he said,thathe detected that they pl.kowed the same letter formations, albeit that they differed in style. Further, the prosecution ledovidence .thrcugh three bank clerks to showthat all the cheques were in, fact brought and cashed with the bank by the accused andthat it was him who received all the proceeds. Asked why they cashed the cheques, these viitnesses replied to say that they oxarinud the signatures on the cheques, compared the same with the:' SpOCiLen signttures o the, signatories hold by the bank and were satisfied that. ther was no material disparity, and, theref ro, paid out the moneys in the belief that the signatures • weregonuine. The accused admitted that he did not forward the payment • voucher respecting th cheues to headuartors. He claimed that ho was instructedñôt to send tcm by one clerk, P.9 Nyabangi. However, it is pertixont to observe that he, PW.9, had i T n. i'TiS evidence stated that the vouchers were exclusively bing dealt .with by thcacciised end no question was put to him as to %Thethor hQ had instructed the accused riot to forward any payment vouchers to headquarters. , 'He, the accusàd, further agreed that he dealt with the query and wrote a reply thereto. He alleged that at the time he sent •his reply to P.2 for signature, the relevant payment vouchers were lying on his, accused's, table, but that when he went back to fetCh them upon PJ.2 1 s insistence, hc,found them missing. And as show., he admitted that ho wrcte the cheques and their respective counterfoilsand that he made the entries in the sh book. But he denied that he did not sign the cheques in the names of P lvj.2 and P'J.3 and that he went to oash them with the bank. He alleged, and this was in harmony with the evidence of Pi4.2 and P40, that he was not authbtisod to cash such cheques. . S .

With regard to the first ppint, the learned magistrate observed that both and P.3, the signatories had denied that tho3 signed the cheques and had stated that -someof the cheques were apparently drawn and signed when they were far away from Mwadui. The learned mgisrate also directed his attention to the evidence of tlie handwriting Specialist, which tended, to excluc9ePe.2, and P.3 from involvement in the transactions. And after tJakin . g into consideration the other evdonco. surrounding the incidents and weighing the same, the learned magistrate came tb the.f.inring thv the signatures on those choeues, were all forged. I have to colisider,indoed it is th bentral question raised by this -appeal,.whethcr the evideice supported the learned hagistrate'.s..:finding. In my considered opinion, it did. Learned-Advocate for the accused has poitecbut that apparently the ••signatures on the cheques were similar with the specimen signatures-of 1'14.2 and PW3 hold by the bank. He has roforredihis court to the evidence of th; bank clerks in that regard and made the point that-the evidence of the handwriting expert. did not advance the prosecution case any further as the best the export could compFetely do was to point out similarities and dissimilarities between one signature and tho other. I agree with the lear. nea but only up to a point0 I wish to point out two things. irst,. that by virtue of his learning and : training, a handwriting expert is ordinarily more proficient in such identification, thougia, of course, his evidence remains opinion- evidence, whtover his qualification. Secondly, there is other Circumstantial evidence, pointed out in this judgment, which il-resistibly excluded both PW.2 and PW.3. I would, therefore, agree with the finding of the trial magistrate on the first point. -, That then brings raeto consider the second point: whether it was the accused who made the forgeries. The learned - magistrate directed himself that it was not in dispute that it was the accused who wrote th relevant checues and that it was his duty, after writing the cheoues, to take them to the signatories.. He also observed that that-being the case, the accused would know very well who forged the cheques. He then referred to the disparities between the figures in the count-orfoils and in thecash book on the one hand, and those in the cheques on the otr, as well asto the opinion evidence of the- export and- - then came to the finding that it was the accused who-perportrated the forgeries. I agree with him in - tote and I do not think that I have anytLing useful to add. . . . . . ./5

-5- Then I pass to the euesti.on whether it was the accused who cashed the checues and collected the ioneys. The learned magist.-ate considered the evidence as a whole and in Partic:lar that of the bank clerks who, admittedly, had often times seen and dealt with the accused, and that of the handwriting expert who tended to confirm that it was accused who endorsed the chocues. He found that this evidence strongly pointed to the accused and he answered yes to the question. Again, on the evidence, I am unable to fault that findig. I would only add that in any event it is clear in this case that it was scarcely possible that the cheques would have boon cashed by another person without the collaboration or procuration of the accused. It has been asked how the accused could have cashed the cheoucs without the authority of tho D..C. I think, the learned Magistrate dealt with that point sufficiently and it is not necessary here to revert to it. It has also been asked how could the accused obtain the cheques in the first place, if, as the evidence revealed, the ch , ue book was always in the etody of PJ.2. That point was net considered by the learned mc.gistrate, but i think tht the .vidence of, PW.2 would shed light to it. He said Under cross-examination:- "I keep cheque books in my safe. Whenever accused wants to write a cho0uo he comes to me. I trusted him so much that I was not taking much effort to examine the c cuntorfoils and the payment vouchers. H No doubt, therefore, that the accused made the forgeries and uttered the cheques as ch'rged. No doubt that these were fraudulent acts. Tho rCmounts on the. cheques were far bigger than those siown on the counterfoils and in the :cash book.. No doubt that it was the accused who collected them. They were not given to the D..C. or to any' other official in his office. They must have been stolen by the accused. will affirm the convictions. The sentences were warranted, little surprise that they have not been appealed from, in the final result, this appeal is dis:issod in its entirety. Delivered in Court. • Appellant in person. • Mr. Songwaji for the flepublic. Tabora, D. P. MAPIGANC, 5th April, 1978- JUDGE.