REPUBLIC VRS ASIAMA (D6/328/16) [2024] GHACC 186 (3 May 2024)

IN THE CIRCUIT COURT, 28TH FEBRUARY ROAD HELD IN ACCRA ON 3RD DAY OF MAY, 2024 BEFORE HER LADYSHIP JUSTICE RUBY NAA ADJELEY QUAISON (MRS), HIGH COURT SITTING AS A CIRCUIT COURT JUDGE. ------------------------------------------------------------------------------------------------------------ SUIT NO. D6/328/16 THE REPUBLIC VRS JOSEPH YAW ASIAMA ------------------------------------------------------------------------------------------------------------ Accused present Complainant present Inspector W.B Kwafo holding brief for Superintendent Patricia Egyepong for prosecution present. Kuuku Welsing-Jones for accused absent ------------------------------------------------------------------------------------------------------------ JUDGMENT ------------------------------------------------------------------------------------------------------------ The accused was charged with the offence of defrauding by false pretences under section 131 of the Criminal and Other Offences Act 29, (1960). The accused person pleaded not guilty to the charge for which reason the onus was on the prosecution to prove the charges against the Accused person beyond reasonable doubt. In the case of ASARE VRS. THE REPUBLIC (1978) GLR 198 – 199, the court in holding (2) held: 1 “(2) As a general rule, there was no burden on the accused to establish his innocence rather it was the prosecution that was required to prove the guilt of the accused beyond all reasonable doubt” Sections 11(2), 13(1) and 22 of the Evidence Act 1975 (NRCD 323) set out the burden that prosecution bears in a criminal case of this nature. “11(2) In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt.” “13(1) (1) In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.” “22 In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt, and thereupon, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact.” S.A Brobbey in his book Essentials of the Ghana Law of Evidence, (2014) pages 48-55 (quoting from pages 50 & 51) deal extensively with the standard of proof required in criminal trials. He states inter alia; “Proof beyond reasonable doubt does not mean that there should be no doubt whatsoever in the case presented by the prosecution. It means that by the end of the trial, the prosecution must prove every element of the offence or the charge (but not all the facts) and show that the defence is not reasonable… 2 The consideration for the principle of proof beyond reasonable doubt can be illustrated this way: If there is any element of the charge which is essential for the accused to be convicted, that element should be established to the satisfaction of the trier of facts in such a manner that a reasonable mind could conclude that the accused is guilty of the offence or that the existence of the facts constituting the charge is more probable than its non- existence.” Also in the case of THE REPUBLIC v. FRANCIS IKE UYANWUNE [2013] 58 GMJ 162, C.A, it was held per Dennis Adjei J.A that; “The law is that the prosecution must prove all the ingredients of the offence charged in accordance with the standard burden of proof; that is to say the prosecution must establish a prima facie case and the burden of proof would be shifted to the accused person to open his defence and in so doing, he may run the risk of non- production of evidence and/ or non-persuasion to the required degree of belief else he may be convicted of the offence. The accused must give evidence if a prima facie case is established else he may be convicted and, if he opens his defence, the court is required to satisfy itself that the explanation of the accused is either acceptable or not. If it is acceptable, the accused should be acquitted, and if it is not acceptable, the court should probe further to see if it is reasonably probable. If it is reasonably probable, the accused should be acquitted, but if it is not, and the court is satisfied that in considering the entire evidence on record the accused is guilty of the offence, the court must convict him. This test is usually referred to as the three- tier test The prosecution sought to discharge the burden placed upon them by calling two (2) witnesses and tendered four (4) exhibits ; Exhibit ‘A’, and ‘B’ in evidence. The accused on the other hand gave evidence, called one witness and tendered 20 exhibits in evidence. 3 THE LAW (i) Section 131(1) of Act 29/60 states; “A person who defrauds any other person by False pretence commits a second degree felony” Also section 132 of Act 29/60 defines the offense of defrauding by false pretence as follows; “A person defrauds by false pretences if by means of any false pretence, or by personation that person obtains the consent of another person to part with or transfer the ownership of a thing” To ground a conviction, the prosecution would have to prove beyond reasonable doubt the following essential ingredients: 1. That the person charged made a false pretence or impersonated another person 2. That by means of the false pretence or personation he obtained the consent of another person to part with or transfer the ownership of the thing subject matter of the charge Section 133(1) of Act 29/60 defines false pretence as; “A false pretence is a representation of the existence of facts made by a person, either with the knowledge that such representation is false or without the believe that it is true and made with intent to defraud.” From the definition of false pretence, it follows that, three sub - ingredients are embedded therein each of which must be proven beyond reasonable doubt by the prosecution which are; 4 a. That the accused made a representation b. That the representation was false c. That the representation was with the intent to defraud THE EVIDENCE The prosecution commenced its case by calling the first prosecution witness (Pw1), Wonder Amamehio the complainant in this matter. Pw1 is a dispenser technician and resides at Shiashie East Legon. He stated in his testimony that in or about July, 2014 he discussed with one Naomi Banful (Dw1) that he would like to commence fish business. Dw1 then introduced accused to Pw1 as being in the importation of fish business. The accused together with Dw1 met Pw1 and upon their discussions A1 agreed to supply Pw1 with any fish to trade in. Pw1 told accused he would prefer house mackerel fish and in the presence of Dw1 the accused agreed and assured pw1 he could supply the said fish upon payment within two (2) weeks. The accused told Pw1 he could supply the said house mackerel fish at the price of $48,000.00 for one footer container should PW1 pay one third (1/ ) of the $48,000.00 and in two weeks’ time he would supply Pw1 with the 3 fish. The one third (1/ ) of the $48,000.00 was calculated into Ghana cedis at the current 3 exchange rate at that time. On 24th September, 2014, the accused together with Naomi Banful met Pw1 in his house and Pw1 paid cash of GH¢54,880.00 to the accused (A1) with the promise of delivering the fish in two weeks. Till date Accused has not received the fish or any of his monies refunded. Excerpts of Cross-Examination of PW1 by Counsel for Accused: … Q. When the Accused failed to supply the fish did he tell you of any reason? A. Yes, he said his suppliers had delayed in supplying the fish. … 5 Q. In your evidence you told this court that you signed an agreement with accused in respect of his sale of his property. Is that correct? A. That is not true. It was when we went to the police after the accused’s statement, we were taking to the crime officer, accused told the crime officer that he wanted to be given an ample time which will allow him to sell his landed property that he was having at his hometown to pay my money to me. … Q. When the Accused met you he told you that the fish you paid for has arrived at the Port not so? A. It was when I was looking for the Accused to retrieve my money that he came to tell me that the fish came but those who would buy the fish said the fish has a low fat content so therefore they would not buy it. He then gave the fish to a Ghanaian business man who showed interest so I asked Accused why you don’t inform me before selling the fish to that man, he said he was asked to give the fish to the man who bought the fish by his bankers. … PW2: is No. 3062, D/Sgt. Gloria Fiamable-Kpoh stationed at East Legon Police Station. In her testimony she stated that on February, 2016 she was the Detective on duty at East Legon Police Station. The complainant (Pw1) reported a case which was referred to her for investigation. According to complainant in the year 2015 he was interested in fish business and a lady friend one Naomi who id Dw1 herein introduced Accused to him as he deals in fish business and can assist him get the fish. Both Accused and Pw1 had a short meeting and after explanation by Accused, Pw1 expressed interest in the business. Pw1 requested for fish of 40-footer container which Accused made complainant pay the sum of GH¢50,0000.00 as the cost of the fish. Accused also made the complainant believe that the money would be sent to the manager of Nawako Company and the name of the manager is Mickel. That Accused had sent the money to Mickel in Denmark and Mickel 6 would ship the fish to Tema Harbour to be cleared by Accused and given to Pw1. The Pw1 waited for some months and never heard any response from Accused. He later contacted Accused again and Accused told him that the fish was shipped into Ghana as promised and after clearing the fish he realized the fish was bad, Accused without informing the complainant or asking complainant to come and see the fish for himself disposed off the fish. Complainant felt he had been defrauded and made the case to the police. After the report Accused was contacted on the phone several times to report himself to the police to assist investigation in the case of fraud reported by the complainant against him. But Accused refused to report himself. The police was forced to go and apprehend him but he was not met. The message was left for Accused church pastor, the pastor tried to solve the issue but he was unsuccessful. Accused was later arrested and he admitted all the offence. He also made a promise after his arrest and was granted bail that he is ready to pay the money for which he should be given sometime as he owns lands at Kwahu he would go and sell same and bring the money to pay for the cost involved. Pw2 gave him all the time to do that but he couldn’t fulfill his promise. The Accused Caution Statement dated 3rd March, 2016 is Exhibit A. The Accused charge statement dated 10th March, 2016 is also tendered as Exhibit B. The Accused has not refunded or paid any money to the Pw1. Excerpts of Cross-Examination of PW2 by Counsel for Accused: … Q. Did you really see the receipt that Accused gave to complainant? A. Yes. Q. Do you remember the amount? A. Yes. Q. Can you tell the court the amount? A. Gh¢54,880.00. 7 Q. Do you remember you have quoted a different amount of GH¢54,000 in your response to my question on the amount paid? A. I remembered I quoted GH¢54,880.00. … Q. What was the reason for showing you these photographs? A. Accused made me to believe that the fish was imported into this country and that he managed to clear the fish but later realized that the fish are not what he ordered for the complainant. And he took sample to the fish mongers to smoke for him. After Accused went for the fish and realized the condition of the fish was not as expected. So he took photographs of it and went to show it to complainant without inviting the complainant himself to have a look at the fish. Q. Could you tell the court whether or not you investigate the bank that paid the cost of the fish on behalf of the complainant? A. I didn’t. because Accused was not ready to assist the police to conduct further investigation. All his interest was to be given 2 weeks to pay the money. Q. Did you find out that genuinely the Accused paid some money to a supplier who would bring the fish to Ghana? A. Yes. Q. The knowledge you found from the document, what did you do with it? A. After reading the document, I quite remember I asked the Accused when the fish was being imported in Ghana after inspecting did he invite the complainant to come and have a look at it and he said No. Then I said how sure are you that the photograph on the smoked fish was for the alleged fish shipped into Ghana. The main reason why we did not trace the origin of the fish i.e. the importer is that the Accused promised that he would refund the money to the complainant. This was also known to Accused’s Counsel on the phone. We made a phone call on the 8 Accused phone to Accused’s Counsel and Counsel said he would make sure Accused would pay the money involved. … Q. So if you believe Accused transferred money for importation of fish then he could not have defrauded the complainant? A. Accused has defrauded the complainant, the reason being that the fish came to Ghana as Accused alleged, it might happen that Accused resold the fish to another person and took photograph of the smoked fish that the fish belonged to the complainant. Q. Do you have evidence to show Accused sold the fish to somebody else? A. That is what the Accused himself told me. Accused said because the fish was in bad state, he sold the fish to another person. Accused: is Joseph Yaw Asiamah. He resides in Kasoa and an importer of fish, Poultry product and meat. He admitted he knows Pw1 and had received monies totaling GH¢54,880.00 to import fish for Pw1`. He however was not able to deliver the fish to Pw1. He further stated that this was in the first week of September, 2014 when Dw1 who is a freight forwarder came to him and told him that a business partner called Wonder (PW1) expressed interest in fish business and that she ( Dw1) has spoken extensively about A1 to PW1. The following day Pw1 together with Dw1 went to PW1’s house. A1 said he told PW1 how the fish business operates. He further told PW1 that he works with the bank and that he has imported some of the fish but if Pw1 is fast and bring his money, he would order some of the fish for PW1 so that the containers would be two. A1 further admitted that PW1 said he would pay 30% and gave him GH¢54,818.00. A1 said he went together with Dw1 the same 14th September, 2014 to a bank called Union Savings and Loans and deposited the money paid into the company’s account. After receiving the GH¢54,880.00 9 he issued a receipt through Dw1 to PW1. The outstanding balance due him after the arrival of the container is GH¢108,740.00. The agreement was that after the container of fish arrives, complainant will pay the outstanding balance. A1 further stated that Dw1 is a clearing agent. She did the role of the clearing of the fish. Pw1 told the court that Dw1 is aware of the fact that the transaction is a frustrated transaction. And A1 said he did not defraud the complainant and have not sold the container also. It is a problem that arose in the cause of the transaction for which he rejected the Fish consignment which was brought. If he did not reject the fish consignment, the debt that would have incurred would be around GH¢350,000.00. Excerpts of Cross-Examination of Accused by Prosecution: Q. Mr. Asiama, since the transaction till date how many years is it now? A. About 5 years now. I have forgotten the exact date. Q. On 24th September, 2014 you collected GH¢54,488 from complainant (PW1) that makes it 7 years not 5 years? A. It would be about. Q. In that transaction you informed PW1 that you were going to supply him with frozen fish within 2 weeks? A. I did not give him 2 weeks. I did not say within 2 weeks. Q. How many weeks did you say you would supply PW1 with the fish? A. I told PW1 getting the frozen fish is a little difficult, it would take between one month and two months. Q. You told this court in your evidence in chief that the container arrived and you were notified? A. Yes. Q. And you informed PW1 of that. A. I told PW1. 10 Q. You also stated that the condition of the fish was not good therefore you sold it? A. I did not say I sold it. I said the fish was not good so we did not even go to clear the fish from the container. Q. Since you say you did not clear the fish, how did you get to know that it was not good? A. Since it was given to an agent, the buyer said he needs to examine it so a sample was brought and after it was smoked the buyer came to inform us that the fish is not good. Q. You are not being truthful to this court? A. I am speaking the truth. Q. Exhibit A, page 2, line 13, you stated that the fish arrived ...and given one container as sample… So you never gave the fish to anybody but you went for it yourself and got it smoked, is that not so? A. That is not what I told the police. Q. Whilst all these transaction went on the fish as stated above, the smoking etc, you never told PW1? A. Every information I do have, I pass on to PW1. Q. Mr. Asiama, after back and forth with PW1, you got your pastor to plead with PW1 that you would pay the money involved, is that not so? A. Yes. Q. You also told the police that you wanted to refund the money at the police station to PW1 in April, 2016? A. I cannot recollect. Q. Seven years down the line, how much have you refunded to PW1? A. Nothing. Q. I am putting it to you that you never imported any fish, that you had the mindset to defraud PW1 of an amount of GH¢54,488 using frozen fish supply as a bait? 11 A. That is not true. I imported 2 containers. Q. Unfortunately, PW1 did not see through your intention hence falling into your trap and you defrauded him? A. That is not true. DW1: is Naomi Bamfo. She stated in her witness statement that she is a Clearing Agent As part of my work, she sometimes collects on credit, quantities of frozen fish from cold stores as a distributor and supply them for profit. She decided to get her own money to buy in large quantities and not be restricted and so she discussed the issue with the Pw1 who expressed an interest in the business. She told Pw1 that she knows an importer who may be interested in doing business together for their mutual benefit. About September 2014, the Pw1 invited Mr. Yaw Asiamah and Dw1 to his house to discuss the possibility of the two (2) doing business together. About two (2) days later, the Pw1called Dw1 and invited A1again to his house. Pw1 told them that he has been able to get 30% of the cost of the consignment and instructed his wife to retrieve the said amount from his room. The money was counted to be GH¢ 54,880.00 which came to $16,000.00. Thereafter, the Pw1 drew up an Undertaking for A1 to sign so that later, A1 will issue a receipt to cover the GH54,880.00. Dw1 later sent the receipt to the Pw1.Dw1 admits the fish did arrive. She said there was an issue with the fish so the supplier asked they give to another person called Nick Annan. She also during her testimony in court Tendered Exhibit 20 and Exhibit 20A. She told the court Exhibit 20 and Exhibit 20A are photographs of the said Mr. Annan who bought the fish. Under cross-examination it came to light Dw1 did not know the said Mr Annan and had never met him befor save to say she spoke on phone on a few occasions with him. Again she said she downloaded the pictures she tendered from the watsup status of the telephone number she communicated with him on. Excerpts of Cross-Examination of DW1 by Prosecution: 12 … Q. So what was the duration for the arrival of the fish to be supplied to PW1? A. About one (1) month. And when the fish arrive, Accused is the one to sell the fish and only give the profit on the fish to PW1. Q. You are aware this case was reported at the police station? A. Yes. Q. And you were one of the sureties of Accused at the police station, is that not so? A. Yes. Q. You were also told the reason why Accused was arrested, that accused was to supply fish to PW1, is that not so? A. No. Q. You are not being truthful to the court? A. I am being truthful to the court. Q. Because in paragraph 4 and 5 of your witness statement shows you are not being truthful to this court? A. I am speaking the truth. … Q. I put it to you that the Accused was to supply PW1 with fish within 2 weeks of payment of the money? A. It is not true. Q. Can you tell the court if PW1 was introduced to Miss Florence in this business? A. No. Q. From the way you are talking it means PW1 did not meet Mr. Annan as well? A. No, he did not meet Mr. Annan. Q. But you met Mr. Annan in person, is that not so? A. No, I spoke to him. Q. You have physically not met Mr. Annan before? 13 A. No. Q. You have not met Mr. Annan before but you have tendered Exhibits 20 and 20A, which are his pictures. How did you know he is Mr. Annan? A. I have Mr. Annan telephone number and he used the Exhibit 20 series as his DP (Display picture). Q. You are not truthful at all? A. I am speaking the truth. Q. So are you saying that any picture on the dp (display picture) represents the owner of the phone? A. He is the person. Q. You also stated that you could not find Mr. Annan, is that not so? A. Yes, I said so. Q. And that you are bringing Exhibit 20 series to this court for the court to look for Mr. Annan? A. Yes, that is so. Q. How long have you had this picture? A. Since last year that has been the picture displayed with his telephone number. Q. If truly you were looking for Mr. Annan being a surety to Accused would it not have been prudent to give the pictures to the police? A. That is also possible. Q. You said you have known PW1 for 8 years, is that not so? A. That is so. Q. Is the 8 years from 2014 to now or from when? A. I cannot recollect. Q. You also stated in paragraph 27 of your witness statement that Accused and PW1 should sit together and make a payment plan? A. Yes, that is so. 14 Q. This case was dated back to 2014, making it 8 years now, did you have them sit down and make the payment plan as you knew both of them? A. I did not have that opportunity. Q. I put it to you that you have not been a good friend to PW1? A. That is not true. Q. I put it to you that you baited PW1 for Accused to defraud him? A. It is not true. Q. So you could achieve your aim as stated in paragraph 5 of your witness statement? A. That is not true. ANALYSIS OF EVIDENCE It is not in dispute that the accused made a representation he could assist Pw1 procure fish. A1 further represented that he could supply Pw1 with the house mackerel fish at the price of $48,000.00 for one footer container of the fish and that Pw1 should pay one third (1/ ) of the $48,000.00 and upon delivery of the said container load of fish he pays the 3 outstanding sum. The one third (1/ ) of the $48,000.00 was calculated into Ghana cedis at 3 the then current exchange rate at that time which amounted to GH¢54,818.00. It is again not in dispute that the quantum of money received by Accused from Pw1 for the purchase of one footer load of fish to be supplied is GH¢54,818.00. The evidence of both Pw1 and indeed the accused (A1) states so. Accused stated that Pw1 was introduced to him by Dw1 who is Naomi Bamfo a freight forwarder. That the terms of the transaction was that 30% of the amount would be paid up front and when the forty footer container of fish arrives the 70% would be paid. That is the system that operates in the fish business. These facts were further confirmed by accused under cross-examination and his statement to the police. (per Exh A ). From the inference of the evidence on record the fish was to be delivered between two weeks to two months of the payment of the initial instalment by 15 the Pw1. From the foregoing, I find as a fact that the accused made a representation to Pw1 and I hold same. I will now deal with the issue of the falsity or otherwise of the representation. It is the evidence of Pw1, corroborated by Pw2; and admitted by accused per Exh A which is his statement to the police that Pw1 did not get the fish. Pw1 after several failed promises sought after accused (A1) initially with the help of Dw1 and later the assistance of the police. Accused in Exh A admits the fish did arrive and he was given one container of the fish as sample, that he gave the fish to fishmongers to smoke for him but after the fish was smoked he realized that the oil on the fish is bad so he informed the supplier who gave the fish to a different company and promised a replacement but failed to replace the said fish. A1 further stated he therefore informed the Pw1 that it has become a debt so Pw1 should give A1 time to pay the money back to him. Per his evidence in court Accused admits he has not paid back any of the monies to Pw1. From the evidence on record A1 sought the court to believe only a few sample of fish was given to him and that he did not clear the fish. The further evidence on record is to the contrary as accused did clear one of the two containers of the fish with the assistance of Dw1. Again from the evidence of A1 on 21st June 2021 he did state that he got the bank to stop the transfer of the funds. “… I got a buyer so I went for a sample of the fish and showed it to the buyer. After the buyer went and processed the fish by smoking it, it came out that the fish had no fat so was not good. The fish monger took photograph of the fish, I scanned it and sent it to the supplier that the fish was not good. So Naomi and I sent the original photograph of the unwholesome fish to the supplier. I took some to the bank and stopped the bank from paying for the fish to the supplier as the fish was not good. I wish to tender it in court. [No Objection] Tendered and marked Exhibit 13 series (Exhibit 13, 13A, 13B and 13C). The supplier then said he would replace the containers for me. … After corresponding with NOWACO{supplier} (emphasis mine) they told me they want to sell the fish to other person in Ghana called Mr. Nick Annan…” 16 Clearly the A1 had every intention to keep the fish to himself as well as the money of Pw1. A1 after receiving the consignment of fish being two containers though A1 knew one of the container was for Pw1 and the other for another client most likely the said Mr. Nick Annan. A1 sold the container of fish without Pw1’s knowledge and consent and only reported back to the Pw1 that the quality of fish was not to the required standard thereby not giving Pw1 the opportunity to confirm or otherwise. A1 clearly cooked up a cock and bull story for Pw1 knowing very well Pw1 had little knowledge of the fish business and was very trustful of Dw1 who A1 was most likely in cohort with as she baited Pw1 for A1. A1 cleared one of the container of fish with the assistance of Dw1 but sought to give the court the impression that he only took a few samples and gave to some fish mongers to smoke for testing purposes. Who clears a full container load of fish and smokes all in the name of sample. From the evidence on record Pw1 was entitled to only one of the two containers imported by A1 so this story of one Nick having cleared the other container of fish through his own agent upon the instructions of the supplier is neither here nor there as Pw1 has no interest in the second container. Again the excuse of A1 that the supplier failed to send another consignment for Pw1 is also a story concocted to deceive the Pw1, this is because if indeed A1 instructed the bank not to send the monies to the supplier when he allegedly realized the fish was not good then there is no money with the supplier for which Pw1 should expect another consignment of fish as A1 directed the bank to stop the outstanding transfer of funds for the fish at the same time had cleared the said container and sold the fish to clients of his who are fishmongers. The court can therefore reasonably infer from the foregoing that the representation was false and made without the belief that it was true; as a result of the false representation the accused caused the complainant (Pw1) to part with -or transfer the ownership of the thing and in this case GH¢54,818.00. A1 at the time of making the representation knew of its falsity. 17 The learned author P.K Twumasi in page 242 of his book, Criminal Law of Ghana stated; “It is not sufficient to prove that the accused made a representation of an existing fact with knowledge of its falsity or without believe in the truth of the representation but must prove further that the accused had an intent to defraud at the time he made the false representation” I would now deal with the issue of whether Accused had an intention to defraud the Pw1 having given such false representation knowingly. In the book Contemporary Criminal Law in Ghana; written by Dennis Dominic Adjei, 2017@ page 309 states that; “Generally, intent to defraud refers to a situation where a person practices a fraud on another person to deprive the other person of his right or to cause the other person to act to his detriment or prejudice or cause him to act in a manner that he would not have acted irrespective of the fact that there was no intention to cause pecuniary or economic loss” From the evidence before the court, initially, accused (A1) told the court he took just a few fish as samples to be smoked which turned out to be bad, the evidence per A1 statement to the police indicates he cleared the whole container and had it smoked by some fish mongers who are his clients. Again A1 did not only sell the fish and keep the monies of Pw1 but also the profit from the sale. A1 then promised to refund the monies paid by Pw1 to him but has failed to refund any despite several promises made to Pw1. It is trite that an accused(A1) must give evidence if a prima facie case is established against him else he may be convicted and, if he opens his defence, the court is required to satisfy itself that the explanation of the accused is either acceptable or not. If it is acceptable, the accused should be acquitted, and if it is not acceptable, the court should 18 probe further to see if it is reasonably probable. Clearly the testimony of the accused failed to meet this standard. From the proven facts and the foregoing, I find as a fact that the accused had the intention to defraud the complainant irrespective of the fact that Accused for his defence sought the court to believe he had no intention to cause the Pw1 any loss. I therefore hold that the prosecution led sufficient evidence beyond reasonable doubt to prove that the intention of the accused was to defraud pw1. I will now turn to the last major ingredient of whether or not by means of the false pretence or personation the accused obtained the consent of pw1 to part with or transfer the ownership of the thing subject matter of the charge. From the proven facts Accused obtained the consent of the complainant (Pw1) to part with GH¢54,818.00 subject matter of the charge. CONCLUSION I have considered the totality of the evidence adduced by both the prosecution and defence and conclude that the prosecution led sufficient evidence to prove the charge of defrauding by false pretences under section 131(1) of Act 29, (1960) against the accused person. In sentencing the court took into consideration the A1 plea for mitigation, his age being 72years and being a first offender. A1 is sentenced to pay a fine of three thousand (3000) penalty units in default thirty-six (36) months imprisonment IHL. A1 to also refund the outstanding monies to complainant, failure to do so the complainant to take civil legal steps to recover same. H/L RUBY NAA ADJELEY QUAISON [MRS.] JUSTICE OF THE HIGH COURT 19 20