NATTEY v. COMMISSIONER OF POLICE [1966] GLR 284

Division: SUPREME COURT

Date: 4 APRIL 1966

Before: OLLENNU, BRUCE-LYLE AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) Reindorf v. R., Court of Appeal, Cyclostyled Judgments, January-June 1958, p. 90, unreported.

(2) Commissioner of Police v. Danquah [1962] 2 G.L.R. 114, S.C.

(3) R. v. Hazelton (1874) L.R. 2 C.C.R. 134; 44 L.J.M.C. 11; 31 L.T. 451; 39 J.P. 37; 23 W.R. 139; 13 Cox C.C. 1, C.C.R. (4) R. v. Walne (1870) 23 L.T. 748; 35 J.P. 185; 11 Cox C.C. 647, C.C.R.

(5) R. v. Kuree (1941) 7 W.A.C.A. 175.

NATURE OF PROCEEDINGS

APPEAL from conviction for the offence of fraud by false pretences by His Worship Mr. Aryee, District Magistrate, Kumasi, which was affirmed by the High Court, Kumasi. The facts are sufficiently set out in the judgment of the Supreme Court.

COUNSEL

Appellant in person.

J. N. K. Taylor, Senior State Attorney, for the respondent.

JUDGMENT OF SIRIBOE J.S.C.

Siriboe J.S.C. delivered the judgment of the court. On 16 December 1965, we allowed this appeal, quashed the convictions and sentences of nine months’ imprisonment with hard labour concurrent passed upon the appellant and acquitted and discharged him, reserving to be given later, our reasons which are as follows: The appellant was convicted on 29 January 1962, by Mr. Aryee then District Magistrate, Kumasi, on two counts of fraud by false pretences contrary to section 131 of the Criminal Code.1 The particulars of the two counts were that he on 23 and 28 December 1960, obtained [p.286] of [1966] GLR 284 store goods to the value of £G293 1s. and £G274 5s. respectively, from the store of Messrs. C.F.A.O., Kumasi, by reason of certain representations he knew to be false. The alleged representations being the issue by the appellant of two cheques, Nos. 273/61726 for £G293 1s. and 273/61728 for £G274 5s. drawn on Barclays Bank, (D.C.O.), Kejetia, Kumasi, in payment of the goods in question, which cheques were dishonoured upon presentation for payment.

The undisputed facts are that some time in the month of December 1960, the appellant, a trader, applied by a printed form exhibit A, to the company for credit facilities upon payment of a deposit of £G100 by cheque to the said company. The cheque was drawn on his bankers, Barclays Bank (D.C.O.), Kejetia Branch, Kumasi, which was duly met upon presentation. On or about the same day that the appellant paid his deposit, he obtained goods worth £G98 3s. On two subsequent occasions, as mentioned in the charges, he collected other goods, for which he issued the two cheques in question (tendered at the trial as exhibits C and D respectively). These constitute the subject-matter of the offences charged, for as already stated, the prosecution’s contention is that upon presentation for payment by the company, they were dishonoured.

The appellant’s case is that although it was a deposit of £G100 that was paid, nevertheless, the sales manager who dealt with him, agreed to grant him credit facilities up to a limit of £G600. Furthermore that he agreed to withhold for a period of about one to two months, the two cheques in question, to enable the appellant to augment his accounts with the bank by moneys he would collect from his own customers, before presenting the cheque for payment, and that the time was not due when the presentation was made, and so he had no intention to defraud the company.

The trial magistrate, however, convicted the appellant holding that he did not think that he was given credit facilities up to £G600 as alleged; for if it were so, there would have been some record of it in the books—which kind of books, of course, he did not specify, and none was tendered either. He also said he did not accept the defence case that the sales manager agreed to delay the cheques for some time before presentations. It should be pointed out that the sales manager referred to did not give evidence at the trial. Dissatisfied with his conviction, the appellant appealed to the High Court, Kumasi, but his appeal was summarily dismissed. He accordingly appealed further to this court. The substance of his brief submission (not being represented by counsel) was almost the same as the defence put up at the trial with this bit added to it:

[p.287] of [1966] GLR 284

That when he was told that the cheques had been dishonoured, he paid on account, an amount of £G80. Later he was contacted by the police and questioned about the matter, but was allowed to go away after explaining the position to them. He thereafter paid a further amount of £G180 to the company but soon after this, he was arrested and charged. Since then, according to the appellant, other payments have been made by him. He therefore concluded by submitting that the prosecution failed to prove against him any intent to defraud.

In reply, learned senior state attorney said there were three aspects of the case which the court must examine:

(1) Was the appellant given credit facilities up to £G600 ?

(2) Did the sales manager agree not to present the cheque for payment ?

(3) Did the bank give the appellant overdraft facilities?

If the answer to these questions is no, then his submission was that the court would have to apply the principle laid down in Reindorf v. R.2 and Commissioner of Police v. Danquah.3 Question (3) does not arise, for it is not the defence case that overdraft facilities were obtained.

As to questions (1) and (2), it was submitted that the answer was no, because exhibit A limited the appellant’s credit facilities to only £G100. Also, according to the first prosecution witness if any credit facilities had been given to the appellant as contended by the latter, the first prosecution witness would have known, because he would have been informed. But in answer to a question by the court, it was admitted by the learned senior state attorney that it appeared none of the prosecution witnesses who are employees of the complainant company had personal knowledge of the transactions in question. He also conceded that there was no proof of the extent of credit which the company gave the appellant. That, in our view, should have been the end of the case, it being clear from the answers given by the learned senior state attorney that the case for the prosecution had not been conclusively proved. He, however, persisted in his efforts to support the conviction by making this further submission: “That credit facilities or no credit facilities, the giving of the cheques is a representation that the appellant had ready money in the bank to meet the cheques upon presentation, unless it can be shown that he had made arrangements for presentation

[p.288] of [1966] GLR 284 of the cheques to be delayed, until he is sure that funds are available to meet them, then he would tell the manager to present the cheques. In that case the giving of the cheques will not be an offence.” The above submission was based upon the principle laid down in the case of R. v. Hazelton.4 Learned senior state attorney relied on it, in support of his contention that there was no agreement to withhold the cheques, because, according to the appellant’s statement to the police, he went to inquire from the sales manager whether he had cashed the cheques. Secondly, that according to the first prosecution witness the sales manager brought the appellant to the agent and was questioned as to why the cheques had been dishonoured.

In the light of this submission, it is necessary to examine the case of R. v. Hazelton from which the other cases cited, i.e. Reindorf v. R. and Commissioner of Police v. Danquah derive their authority. In that case the facts were as follows: The prisoner was indicted for obtaining goods by (among others) the false pretence that certain cheques were good and valid orders for the payment of their amount. It was proved that the prisoner ordered goods of the prosecutors, and said he wished to pay money for them. He gave cheques on a bank for the price, and took away the goods. The prisoner had shortly before opened an account at the bank, but had drawn out the amount deposited except a few shillings. Various cheques of his had been refused payment, and he would not have been permitted to over-draw. He did not intend when he gave the cheques to the prosecutors to meet them, but intended to defraud. It was held that there was evidence of the false pretence that the cheques were good and valid orders for the payment of their amount.

Upon consideration of the above it is obvious that there are material differences between that case and the present one so as to make the application of the principle decided in the former to the latter unjust. First, there is evidence in the instant case that the appellant, unlike the prisoner Hazelton, obtained the goods in question in his capacity as the company’s credit customer, and not as a person who went to purchase goods and pay ready money for same. Secondly, there is no evidence here as in Hazelton’s case, that other cheques of the appellant had been refused payment apart from those in question (exhibits C and D). Thirdly there is the evidence of the appellant, unchallenged in any way, that he was expecting payments from customers of his to whom he had sold on credit those goods [p.289] of [1966] GLR 284 obtained from the company to augment his accounts with the bank, hence the arrangement made with the sales manager to withhold the cheques from presentation.

Now the questions as to whether or not such an arrangement was made and whether there was a limit of £G600 given to the appellant or not, are vital matters in issue, about which, as rightly conceded by the learned senior state attorney, no witness from the prosecution’s side could speak from his personal knowledge. Nor, as was further conceded by him, was there any proof of the extent of credit facility which the company gave the appellant.

We do not accept the submission that by necessary inference to be drawn from exhibit A, on the face of which there is nothing to show that the company was a party to anything therein stated, the limit given to the appellant was £G100. If as the evidence so clearly shows, the appellant deposited the sum of £G100 with the company as the latter’s credit customer, and the contention of the prosecution is that he was limited to take goods only up to that amount, then we fail to see how he could rightly be called a credit customer. This is because that term in the sense that it is generally used, as in the present proceedings refers to a person, i.e. a trader, who buys goods for sale on credit from another (person, firm or company) upon certain terms agreed between him and the vendor as to (1) the limit of goods to be supplied the amount of which always exceeds the security given; (2) the type of security to be provided by him (which may be cash deposit, mortgage or personal guarantee); (3) time for payment of any amount that may be found due and (4) steps to be taken to recover the same after default has been made to settle the indebtedness. On the evidence appearing on the record we find the appellant to be such a type of credit customer. Therefore in the absence of positive or direct evidence to the contrary, the court is bound to accept what he says, that the limit given him was £G600. Similarly, it is to be accepted that there was an agreement to withhold the cheques until funds were made available by him in the bank, before presentation, but nevertheless, they were tendered for payment before the agreed time. In the circumstances the case seems to us to be governed by the principle: “That if the prisoner, at the time when he gives the cheques, believes, although he has no account at the banker’s, that the cheque will be paid on presentation, he cannot be convicted of a false pretence.” Archbold, Pleading, Evidence and Practice in Criminal Cases (34th ed.), p. 742, para. 1972; and the case there cited R. v. [p.290] of [1966] GLR 284

Walne.5 In that case according to Archbold:

“The prisoner bought a mare, and paid for her on Thursday by a cheque drawn on a banker with whom he had no account, but told the prosecutor not to present the cheque until Saturday, to which the prosecutor assented, but nevertheless did present it on Thursday, it was dishonoured, and it appeared from the evidence that the prisoner was on Thursday in daily expectation of having money paid to him which would have enabled him to place the banker in funds to meet the cheque on Saturday, this was held not to be criminal because the prisoner had no intent to defraud.”

Those supposed to be in the know as to what exactly took place are the sales manager and the agent, neither of whom gave evidence. The record shows that at the time of the trial the sales manager was on leave in France, but there is nothing to show where the agent was. The absence of any evidence from the two material witnesses, therefore left unsolved, the vital matters in issue, namely, the limit of credit given and the arrangement made, if any, about the cheques upon which alone, the determination of the case depended.

In circumstances such as these, the authorities are quite clear that all the relevant evidence has not been placed before the trial court for it to gauge the truth one way or the other, a situation which enures to the benefit of the appellant: see R. v. Kuree6 and other cases following it.

For the above reasons, we were of the opinion that the conviction and sentence could not stand. We accordingly allowed the appeal quashed the conviction and sentence, and acquitted and discharged the appellant.

DECISION

Appeal allowed.

S. K. T.