It is not an essential element in the offence of attempting to obtain goods or anything by false pretences that the mind of the prosecutor shall have been affected by the false representations. The ownership in the property must not pass, but the acts committed by the accused must be immediately connected with the full offence of fraud by false pretences and indicate beyond reasonable doubt the end towards which they were directed. The gravamen of the charge is the intention to defraud and therefore in this present case it was sufficient if the intention of the second and third appellants was to induce the cashier to do something contrary to what it would have been his duty to do, had he not been deceived, see R. v. Welham.
“To deceive is to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit; it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.”
False pretence is defined in section 133(1) of Act 29 and by that definition, false pretence must involve a false representation of an existing fact. A promise of an event in the future can found liability if it is coupled with a false statement of an existing fact: see Chief Superintendent of Police v Ceesay (1957) 3 WALR 87. And a mere representation that something will happen or is likely to happen does not amount to fraud by false pretences
With respect, we differ from the opinion of the learned Judge that the facts support a conviction for obtaining money by false pretences. In the first place, it is not clear that the appellant had in fact no spraying machine for sale; secondly, even if there was any misrepresentation that the appellant had a spraying machine for sale it was certainly not made by the appellant himself, but rather by the other person named Mensah. The evidence is clear that if any person induced the complainant to part with his moneys if it was not the appellant, but somebody else. In view of all these considerations the conviction for false pretences could not be permitted to stand.
Intent to defraud as an element of false pretences
The definitions given in sections 132 and 133 (1) show that the terms “defrauding” and “false pretence” are technical terms and that for “false pretence” to constitute the offence of “fraud by false pretences” created by section 131, it must be a pretence made “with intent to defraud” or “for the purpose of defrauding.” It follows that without intent to defraud, a pretence however false, may only amount to deceit, falsehood, which is not the same thing as fraud.
To induce is to persuade, to prevail upon a person to believe something and to act upon it. In the case of false pretence, to induce is to persuade a victim to accept a representation made to him as true and to act upon it to his detriment or the detriment of another. Such a victim must be in a position that he cannot of his own knowledge, or without reference know of the truth or falsity of the representation. Therefore if it is within the knowledge of the person to whom the representation is made that that representation is false, and yet he acted upon it, he cannot be said to have been induced by the false representation; in such a case he is not a victim of the representation.
if one obtains goods on credit and defaults in paying, or receives money from people to do some work but fails to do the work, the default in each case amounts to a breach of the contract, the remedy of which lies in the civil courts and not the police station. Neither situation amounts to fraud.
Obtaining the consent of a corporation through its servant
The argument seemed to be that the cashier, Henry Kwasi Gyan, could not part with or transfer the “ownership” of moneys belonging to the bank to others. But the answer to this argument is that Barclays Bank, D.C.O. is a corporate personality and it functions only through its servants with express or implied authority. The rule of the common law is expressed in the well-known maxim qui facit per alium facit per se, and in the normal course of banking business it is the duty of a cashier to transfer to anyone who presents a genuine cheque not only the possession but also the ownership of the cash represented by such cheque.
The District Magistrate, however, is recorded as finding that these two appellants were “not guilty of stealing, but guilty of fraud by false pretences”. In this the learned Judge of the Divisional Court supported him. (His lordship read Section 39 of the Criminal Code and Section 154 of the Criminal Procedure Code, as reproduced in the headnote, and continued:—) In our opinion, the combined effect of these two provisions is (1) that if upon a charge of stealing it be found that the facts do not support such a charge, but do support a charge of fraud by false pretences, an accused person may be found guilty of such a charge by substitution although it formed no part of the indictment; but (2) that if the facts do support a charge of stealing, it is upon that count, and that count alone, that an accused person must be dealt with and convicted, and if wrongly acquitted upon such a charge the same facts cannot be used in order to convict him on a substituted charge, particularly where it appears (as it does in the instant case) that the ownership of the money was not severed from the person who handed it to the accused by way only of a temporary loan. The same reasoning would apply to Section 155 of the Criminal Procedure Code. A person wrongly acquitted on a charge of false pretences cannot on the same facts be convicted of stealing unless the facts support a charge.
Variance between the pretence alleged and the pretence proved
It must be pointed out that the law does not require that evidence in a case of false pretences as to the pretences made should reproduce the words alleged in the charge before the charge can be sustained; what the principle amounts to is, that representations alleged in the charge as made which induced the parting with the money or goods, should be the same in substance as the pretence of which evidence is given, and where it varies substantially from the one alleged in the charge, the variance would be fatal.
