Hassan Mzee Mfaume vs Republic (High Court Criminal Appeal No. 80 of 1977) [1977] TZHC 523 (30 December 1977)

ul TJNZLNIA at Dar es Salawn JPPELLTE JIJRISD ICT ION HIGH COURT CRIMIL APPEAL No.80 OF 1977 (Original Criminal Case No.158 of 1976 of the District of Dar es Salaam District at Kivukoni) Before: H.J.M5J1LRI, Jsq. Resident Mqtstrate R srAN MZEE ]Y.Ftj1jff , • • , , , • • . . , • . . . . , • . , . . . . . . . . . . . . JPPELL.LThTT versus (Original Jccused) T 1t REPUBLIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RESPONDgNT

• (Original Prosecutor) JUDGEIENT S AN KIMICHi, J.— The appellant in this case was convicted on 10 counts of obtaining money by false pretences and sentenced to five year& imprisonment for each count, sentences to run concurrently. He was also convicted on 10 counts of forgery and sentenced to .5 years imprisonment for each count, sentences to run concurrently. It was also ordered that the sentences of imprisonment to run concurrently. The lower court judgement is reproduced below for easy refe- rence. JUDGEMENT Hassarii Mzee Mfauine is charged with 24 COUfltS f 12 counts of forgery and 12 counts of obtaining money by false pretenôès. Counts No.7 and 8 and counts No.15 and 16 were withdrawn under 3.86(a) of the criminal procedure code by the prosecution and altogether there remained twenty counts, 10 for forgery and 10 for obtaining money by false pretences. 1411 fail under sections 333, 335 and 337 and 302 of the Penal Code, respectively. The particulars are that at various occasions on different dates as charged the accused Hassan Mzee Mfaunie at the N.B.C. City drive branch within LLala District, Dar es Salaam Region, with intent to defraud or deceive did forge a signature of one Mohamed Kilewa on N.B.C. withdrawal forms, purpo- ting to show that the said withdrawal forms had been prepared and signed by Mohamed Kilewa owner of Passbook No.32821, whereas, inf act, they' were not.

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2/. The particula's for obtaining money by false pretences are that for the various counts, at different dates as charged the accu.sed obtained various sums of money at the N.B.C. City Drive Branch from Pass book No.32821 of Mohamedi Kilewa by falsely pretending that the various withdrawal forms of various dates which he prepared and signàd were good and valid orders au.thorised by Mohamed Kilewa, the owner of pass-book No.32821 whcreaa, in fact, it was not true. The accused pleaded not guilty to all counts. Evidence adduced by the prosecution is that at various times money was withdrawn from the account No.32821 of Mohamed Kilewa not by him and,.ot under his authority. He said at several occasions he discovered that he had never gone to withdraw money from his account. That includes on 17/4/74 where shs.990/- were withdrawn and on 18/4/75 where shs. 5,680/- were withdrawn from his account and on 19/4/74 where shs.900/- were withdrawn. PW.l Mohamedi Kilewa said in court that because he could not fill the forms properly, at times he asked for : help from several members of staff of N.B.C. and that the accused had helped him several times. He said that on 16/4/76 he deposited shs.3,0001- and that on that dy the accused helped him to fill the forms. Lltogether in the bank he said he had she. 10,000/- and that it was the accused who helped him to fill the forms. He said he was given his old book exh.l and another new book exh.2. He put them in his pocket and that when he went home and looked at the books he discovered that wrong entries had been made in the old book that dates which he never went to withdraw money had been entEred and money withdrawn. He said the dates were 16/4/74 for with- * drawal of shs.5,680/-, 17/4/74 shs.990/- and 19/4/74 shs.9001-. He said his balance instead of reading shs.9,000/- in the new book he was given it read shs.2 9 517/90 after the withdrawal of only shs.l,0001-. after this finding, he reported the matter to the police. Evidence given by bank officials is to the effect that money is paid to the customer when a withdrawal form is authorised by the supervisor and that money can be paid without pass book at the autho- rity of the supervisor only. Evidence shows that it is true as also supported by the exhibits that money was withrawri from. the account of Mohamed Kilewa through a forgery of his signature and that he was on those several occassions not repporisible for the withdrawals. The question now in issue is on who is responsible for the forgery and the taking of the money from the PW.1 account on the various days in issue. On 17/4/74 and on 19/4/74, it indicates that money was withdrawn also in exh.13 and 14 and Exh.!A'± the pass book. Entries in the pass book exh.'I' are made in ink instead of being type-written as the practice applied in the bank. according to bank procedure entries are type-written by the punching machine. They are never handwritten unless on that date there is no electricity to run the machines. But if that is the case, such is written by officials that those were the circumstances which led to writing bi hand. Such was not endorsed on the 17/4/74 and 19/4/74 where money was withdrawn in exh.'L'. PW4 said the accused used to help him several times • including on 16/4/74 and 22/4/74 to fill his forms. On 16/4/76 PW.l deposited shs.3,0001-, on 22/4/76 he withdrew she.1,0001-. In between those days he ......../3

oveed that something fishy had gone about with his account. PW.5 said the accused brought exh.13 and 14 to withdraw money in respect of the account of Kilewa. He told Pi.5 to process the documents., as PW.5 was the checks clerk. PW.5 processes the var±ous documents for king money for the accused in respect of lYlohamedi Ki1ewas account as per exh.13 and 14. The accuaed was given sha. 990/- and 900/- respectively. The accused came with a pass book similar to that account. PW.5 said he remembered the accused as they worked together and that on those days that is on 19/4/74 he had brought withdrawal form for the account of Kilewa written 'Mlipe huyo Kijan.a Pesa zangu M. Kilewa - meaning pay my money to that young man. In defending himself the accused defended himself under affirmation. He said he was, sur- prised to be told he had stolen the money of Mohamedi Kilewa because he was not the officer in- charge. He agreed that he worked at the bank as a messenger. He said he was called by authorities for questioning on 23/4/74 on whether he knew a customer called Dilohamed Kilewa. He agreed to have helped Mohamed.Kilewa, 4 customer, on 16/4/74 to deposit shs.3,0001- and, on 22/4/74 for the withdrawal of the sum of shs.1,000/- the accused said he was the one who helped the PW.1 to fill those forms. The accused said further that all cashiers were cal- led and no cashier was found saying that he saw the accused tnking the money using the book of Mohamedi Kiowa. Jiccording to evidence and exhibits given money had been stolen from the account of Mohamed. Kilewa. The accused is implicated in that he was used to helping the 1st Pi. Iviohamed Kilewa to fill forms for deposits and withdrawal of money. The accused is further implicated by the evidence of PW.5 who said that the accused personally brought exhibit 13 on 17/4fl4, and exh.14 on 19/4/74 for the withdrawal of shs.990/- and shs.9001- 9 respec- tively. .Axh.14 was written 'Mlipe hu,yo kijana pesa zangu". On those days according to evidence that is from 16th to 22nd Lpril, 1974 it is when the account of the 1st 1W. was greatly disturbed. It is when false withdrawals were mostly made and figures scribbled for withdrawal of money in exh." whereas the 1st P.W. never withdrew money. It is when PW.l was given a new book on 22.4.76 and he discovered that his money was stolen. Further it is when the accused was found on 17th and 19th with withdrawal forms of P.W.l's account. In all those circumstances the defence of the accused must fail. It fails in that the court finds that the accused took advantage of obtaining money by false pretences from the old man. Kilewa. Lifter having helped him several times to fill the with- drawal forms and the deposit forms the accused stu- died the account of Mohamed Kiowa. He tempered the entries and withdrew money continuously in that account. Though handwriting experts were not called to prove that it was the accused who wrote all those withdrawal forms, the finding that it was the accused is based on circumstanc evidence and eye-witnesses. 9 . . . . . ./ 4

The accused as I have earlier observed, was on those nearest dates used to help P.W.1. This was on 16.4.74 and on 22.4.74. On those same or in between those same dates the defects are disco- vered. Secondly, PW.5 saw the accused personally with a pass book in the name of P1.1 and that he brought forms on 17.4.74 and 19.4.74 purporting that he was sent by P.W. to take money for him and according to PW.l money was given to him (accused). He used the words. 'ivilipe hu.yo kijana pesa zangu'. On those grounds I find that the accused was concerned with the forgeris and the obtaining the money by false pretences on the variou8 dates as charged. (Sigd.) (M. J. MSiMiRI) S IDENT Mf.G ISTRJT1 17/9/76 Conviction: I convict the aceu.sed with 10 offences of for- gery and 10 offences of obtaining money by false pretences as charged. PP: I have no previous records for the accused. The court should take into account that the bank is a place where money by citizens is safuarded and it should be discouraged for officials of the bank to steal money for customers. Accused: Mitigations: I have got 3 children and other dependents. My parents are very old. 1 am a first offender. Sentence: For each offence of forgery the accused is sentenced to a term of 5 years. For each count of obtaining money by false pretences the accused is sentenced to a term of 5 years. Sentences of imprisonment to run concurrently. R.A. explained against both conviction and sentence. Delivered in open court this 17th day of April, 1976 by Sigd. (U. M54XAMARI) Resident Magistrate 17 .9 .76 After reading the record and after considering the appel- lants submissions before this court, I am satisfied that there was sufficient evidence before the lower court justifying the 96 • .-S • / 5

R nellants conviction. I also do not consider the sentences $cj be excessive0 The appeal is therefore dismissed in its entirety0 (i0P. BVI Hi) JUDGE 23/12/77 Delivered in open court this 30th day of December, 1977. JUDGE 30/12/77