Cheating
This offence is created under section 304T PC. The offence of cheating is committed where:
1) Any person who by means of any fraudulent trick or device obtains from any other person anything capable of being stolen.
2) Any person by means of any fraudulent trick or device induces any other person to deliver to any person anything capable of being stolen.
3) Any person by means of any fraudulent trick or device induces any person to pay or deliver to any person anything capable of being stolen or to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered but for such trick or device.
To establish this offence the prosecution must prove:
Ø That the accused used a fraudulent trick or device.
Ø That as a result of that trick or device he obtained something capable of being stolen from someone.
There are however some difficult in drawing a distinction between this offence of cheating and other offences like obtaining goods by false pretences. Cheating is perpetrated by trick or device while obtaining goods by false pretences depends on false statement of existing fact. It is apparent that the words, which appear in the offence of cheating which in fact differentiate this offence from obtaining goods by false pretences, are fraudulent trick or device. In false pretence, inducement is perpetrated by the strength of false representation by words, writing or conduct. In cheating, inducement is perpetrated by a trick or device.
All the same, case law has shown that it is not easy to tell the difference between the offences of cheating and obtaining goods by false pretences.
In the case of PAULO MWANJITI V. R. (1967) H.C.D. No. 187, the accused was convicted on two counts of robbery posing as a police officer, he relieved two persons of Tshs. 304/10 after “arresting” them. He took the money as “bail” and told them to appear at the local police station the next day.
“…Conviction quashed because robbery as defined in the Penal Code section 285 involves stealing plus the use of threats or violence by the accused. Here the evidence disclosed not use or threat of violence, so the conviction of robbery could not be maintained. The evidence was, however, sufficient to support a charge of cheating contrary to section 304 of the Penal Code…”
This case shows how this offence is delicate. Here the accused is posed as a police officer and induced the complainants to give him the money a thing which is capable of being stolen.
In another case of ALI SIMBA V. R. (1968) H.C.D. No. 240, the accused was convicted of cheating. He had persuaded complainant to write out a receipt in a book produced by accused, gave a copy to complainant, and then ran away with the book containing the duplicate.
“…The accused may have enabled himself to put complainant in some difficulty, at a later date, by producing the receipt showing a payment by him to complainant. However, the receipt book was his own, and there was no showing that by his trick he had obtained anything capable of being stolen…”
In MOHAMED SALUM MZALAMO V. R. (1969) H.C.D. No. 127, the accused sold a tin of sand to the complainant pretending to be sugar, a layer of sugar having been spread over the sand inside.
“…The facts disclosed the offence of cheating…”
In another case of JOHN JOSEPH V. R. (1969) No. 171, the court was confronted with problem of putting a demarcation line between obtaining by false pretences and cheating. In this case the appellant had sealed a tin of water on top of it spread some groundnuts oil. He convinced the complainant it was groundnuts oil and that he was in a problem. In fact he demanded Tshs. 30 whereas a tin of groundnuts oil was Tshs. 60. He was arrested by police detectives who have been watching the game. He was convicted of cheating. On appeal Platt. J. (as then he was) said the following:
“…In the instance case the appellant said his tin contained groundnuts oil. It appeared from the facts that some groundnuts oil was on the top of the tin that was stated to be the content was true. While the manufacture of the tin with water in it might be seen as a trick or device, never the less it can hardly be doubted that it was the appellant’s statement that was the main deception, no doubt in deed to some extent by the stare of the tin. Had the appellant merely produced the tin, that would not have been sufficient to deceive the complainant…”
The court was inclined to the view that where money is obtained on the strength of statement as to the contents or quality ofsome objects, it is the false statement concerning the content of the thing is immaterial. For this reason, the court preferred to base the appellant’s conviction on section 302 PC.
The judge in reaching his decision added: “But in saying so I accept that it might be that either section can be employed according to circumstances of the particular case. Even in the present case the distinction is narrow indeed”.
Another case is BLASIUS V. R. [1973] E.A. 510 or 1973 L.R.T. No. 85; in this case the appellant was convicted of cheating. It was alleged that he had fish to sell. On receiving 943/= he entered a building and disappeared. On appeal:
The charge should have been one of obtaining money by false pretences. The High Court however noted that there were no material differences between obtaining money by false pretences and cheating. MFALILA, A.g. J. (As then was)
“…The appellant, if he did obtained this money by falsely pretending that he had fish to sell. In saying so, he did not use any trick strategies or device. He simply made a false statement of an existing fact. The charge under section 304 PC in these circumstances was therefore misconceive…”
Forgery
Forgery is the making of a false document with intent to defraud or deceive-section 333 TPC. A person is guilt of the offence if he makes a false instrument, and for this purpose instrument is defined as;
1) Any document, whether of formal or informal character.
2) Any stamp used or sold by the post office.
3) Any disc, tape, sound track or other device on or in which information is recorded or stated by mechanical, electrical or other means.
An instrument will normally be written on any material and the writings may consist in letter, figures, or any other symbols used for conveying information.
The essence of forgery is the making of a false document intending that it be used to induce a reasonable person to accept and act upon the message containing in it as if it were contained in a genuine document.
A document usually contains messages of two distinct kinds.
1) A message about the document itself=such as the message that the document is a check or a bill.
2) A message to be found in the words of the document that is to be accepted and acted upon=such as the message that a banker is to pay a specified sum or that property is to be distributed in a particular way.
According to section 334 TPC, the term document does not include a trademark or any sign used in connection with articles of commerce, though they may be written or printed.
In the case of SMITH V. R. (1858) Dear & B 566D where Smith sold baking powder in wrappers substantially resembled the wrappers of one George Borowick, a well- known manufacturer of baking powder. It was held that the wrappers were not forgeries since they were not document. The wrappers conveyed only one message that they were George Borowick wrappers and conveyed no further message concerning the genuine of the document. There was no message that the wrappers were to be accepted and acted upon.
To constitute an instrument for the purpose of forgery the document must do more than merely conveying information. It must be of such a nature that the information contained in it as a document is intended to be acted upon and thereby affected the rights or interests of some person(s).
A document will be considered forged if (Section 335 PC)
o It purports to have been made in the form in which it is made by a person who in fact did not make it in that form.
o It purports to have been made in the form in which it is made in the authority of a person who did not in fact authorize its making in that form.
o It purports to have been made in terms in which it is made by a person who did not in fact made it in those terms.
o It purports to have made on the authority of a person who didn’t in fact authorize its making in those terms.
o It purports to have been altered in any respect by a person who didn’t in fact alter it in that respect.
o It purports to have been altered on the authority of a person who didn’t in fact authorize the alteration in that respect.
o It purports to have been made or altered on a date on which or at a place at which or otherwise in circumstances in which it was not in fact made or altered.
o It purports to have been made or altered by an existing person but he did not in fact exist.
False
The document must not only tell a lie, it must also tell a lie about itself. Telling a lie doesn’t become a forgery because it is reduced into writing, it is a document, which must be false and mere the information. In its ordinary application the distinction is easy enough to grasp. If an applicant for job falsely states his qualifications the letter is not forgery but if he writes a reference which purports to come from his employer the reference is forgery.
In the case of HOPKINS & COLLINS (1957) 41 CR. APP. R. 231, Hopkins was a secretary and Collins a treasure of a football supporters club, received monies raised by member who made disbursement on behalf of the club. Over a period of time:
i) Entered in the books amounts less than they were paid.
ii) Entered amount in excess of what was paid out.
iii) Altered certain entries.
“…It is clear that the accounts were in accurate, but keep in accurate account is not forgery. To be false they must tell a lie about themselves. As far as (i) and (ii) are concerned, the accounts merely told a lie by purporting to be accurate accounts of Hopkins and Collins while they were inaccurate account…”
As for alterations, a document is not false merely because it has been altered, the alteration is forgery only if it purports to be made or authorized by one who made or authorized it. This is so long as the alterations were made or authorized by Hopkins and Collins they were forgery. Suppose however that only Hopkins, the secretary had been acting dishonestly and suppose further that Collins, the treasure authorized to keep the accounts, if Hopkins without Collins’ authority altered entries so that the alteration appeared to have been made or authorized by Collins, the account would by forgery.
In the case of GEORGE WALTER AND OTHERS V. R. [1980] T.L.R. 313, the first and second accuseds were both employed by Oyster Bay Hotel, the former as a storekeeper and the latter as the cook. The third accused was a fishmonger. Who used to supply the hotel with fish. On the 18th December 1976, General Manager, whilst looking out of a window of his room in the hotel, noticed that the accused were taking a ling time in weighing a basket of lobsters brought by the third accused. The weighing was taking place outside the store, which was visible from his point of observation. He went to the spot to investigate and found that the weighing of the lobsters shown on the scale was eight and a half kilos, whereas a receipt voucher, so termed by the witness written and signed by the first accused and countersigned by the second accused gave the weight of the lobsters as twenty five kilos. The lobster were weighed only eight and a half kilos. By the time the lobsters were weighed again, the third accused had already taken the receipt voucher to the cashier and was told to come for money on the morrow.
The magistrate convicted the first and second accused of the first count and acquitted them of the second. The third accused was convicted of the second count and acquitted of the first count.
“………First count was forgery, Second count was false pretences…..”
The issue raised on appeal was whether the making or signing of the false voucher constituted forgery?
“…Forgery is the false making of an instrument purporting to be that which is not, it is not the making of an instrument which purports to be what it really is, but which contains false statement. Telling s lie does not become forgery, because it is reduced into writing. A false document will only constitute forgery unless it tells a lie about itself. The voucher although containing a false statement, that the lobsters weighed 25kg. When in fact they weighed only 18 kg; the making of the voucher doesn’t constitute forgery…”
In ZAKAYO PWERE V. R. [1981] T.L.R. 182, the appellant was working for the Mbeya Co-operative Union and was assigned the duties of accountant to the Distribution Department of that Union. When the transporters carried good for Union his duty was to process payment to such transporters. In this connection he would prepare a payment voucher in the name of the particular transporters which voucher must be supported by such document as an invoice and goods received note. In doing this job the appellant was assisted by one MICHAEL MAJALIWA (PW8) and accountant clerk who worked directly under him. After the payment voucher was prepared, the appellant submitted it for authorization to the Distribution Manager one YUSUF LASENGA. After authorization the appellant makes out checks payable to the particular transporters. Signatories of the checks were Chief Accountant, the General Manager and the Regional Co-operative Officer. The check after signed is returned to the appellant who hands it to the particular transporter.
During December 1973 both PW8 and PW9 were away on leave and so the appellant performed their duties as well as that of his own. However when PW8 and PW9 resumed work in January 1974 the appellant declined to hand over to them their respective duties. He locked up the books in his drawers thus making it impossible, for instance, for PW8 to prepare vouchers. The drawers were broken and a day or two later the appellant disappeared from his office and never come back.
The investigation revealed that six checks of varying amounts were issued in favour of transporters by the name of A.A.ALLY. The seventh check was drawn in favour of another transporters one H.N.SHAH but endorsed in favour of A.A.ALLY. H. N. SHAH denied to have endorsed the check in favour of the said A.A.ALLY or to have received the check at all.
The union had dully paid all the seven checks amounting to 25, 907/= to A.A.ALLY but no one, even the appellant knew who this A.A.ALLY was. Some of the checks were written by the appellant and some by DAMASwho was employed temporarily to assist the appellant when PW8 and PW9 were away.
Police searched the bank and found a bank account belonging to one ABDU ALLY was opened on 26.10.73. The account holder has two addresses: P.o. Box 154, Mbeya and P. o. Box 243 Musoma. All the checks mentioned above were deposited in this account except one for Tshs. 2,955/= which was made payable to the distribution department because the department took it in exchange for hand cash. There were also withdraws from this account on drivers date. The police went to search the appellant’s house. The appellant was absent according to his wife; he was on safari to Musoma.
In the course of the search, the police came to locked cupboard and the wife said that she didn’t have the key to it. The police decided to force it open. In it they found among other things, a bank pass book in the name of ABDUL ANTHONY ALLY of box 254 Mbeya and some money to the tune of 800/=. The entries and withdraws in the passbook correspond with those found in the account of ABDUL ANTHONY ALLY at the bank. In December 1973, the appellant bought a motorcycle for Tshs. 7,007/50 and paid off by three installments only in a matter of just one week, telling the dealer that he got a loan from the union (His gross salary was 840/- p.m.)
Two of these installments corresponds the withdrawals as shown in the bank account and the bank passbook of A.A.ALLY. Thus on 11.12.73 both the account and bank passbook show a withdrawal of Tshs. 1000/= as initial deposits for his motorcycle. On 17.12.73 there was a withdrawal of Tshs. 4,000/= while the appellant on the same day paid 3,400/= as the second installment for the motorcycle. The final installment made on 18.12. 73 for Tshs. 2,070/= and this was the money from the distribution department for Tshs. 2,955/= on 17.12.734. On appeal:
“…Once it is established that the passbook was found in the appellant’s possession, it follows that it was the appellant who was operating the bank account in the name of A.A.ALLY using the passbook…”
That is the only reasonable conclusion to be drawn because otherwise it is not apparent for what purpose he was keeping that book. Indeed this conclusion is supported by the fact that withdrawals on 11.12.73 and 17.1.2.73 as shown in the passbook corresponds with the date on which the appellant paid installments for the purchase of his motorcycle.
“…Once it is established that the appellant was operating the bank account in the name of A.A.ALLY it matters not whether he was using his own hand or some one else’s hand to do the writing…”
Since the appellant cashed or deposited the checks into the account (A.A.ALLY) operated by himself then he must know those checks and the relevant payment vouchers were processed until the check eventually reached him. He was himself one of the persons concerned with the processing of payments in the distribution department, and in such a circumstances it is, in my opinion, impossible to see how the checks could find their way into his possession without himself knowing how they were processed.
“…The writing on the payment vouchers and the checks relating to a fictitious were forgeries. The act of taking and receiving monies under the fictitious name amounted to theft. To constitute forgery the hand of Jacob must purport to be the hand of Essau…”
Document
For the purpose of the law of forgery, a document is a writing in any form, or any material, which communicates to some person (s) a human statement whether of fact or fiction.-S. 334 TPC
In the case of WACHIRA V. R. [1957] E.A. 808, the accused in order to make it appear that he had come by a bicycle lawfully, altered a cash sale receipt from a cycle mart. He erased a pencil entry on the receipt referring to cycle bell and wrote in ink a non-existent sale of the bicycle in its place.
The cash receipt was held to be a false document.
Where a man authorized to fill in a blank check for e certain amount intentionally fills in an amount in excess of that amount authorized, he makes a false document.
similarly, where a person puts a false date for execution of a document, and the date is material, he ,makes a false document.
In the case of NAURANG SINGH S/O HUKAM SINGH V. R [1957] E.A. 443, the appellant with intent to defraud forged a judicial document. The written statement of Defense (WSD) was supposed to be filled on 22nd march 1957 or it would be out of time. The WSD was not filed on March 22 but the appellant took it to the general office of the court early on the morning of 23rd March and then in the absence of the clerks stamped the document 22nd March 1957 with the official stamp of the court and left the document lying on the table of the court clerk. He later informed the advocate of the plaintiff that the WSD had been filed on 22nd March.
“…The application of the official date stamp to a WSD is an alteration which had if, been authorized would have the effect of indicating that the WSD had been dully delivered at the court to a person authorized to accept it on the date shown by the stamp. Therefore the document with the official stamp upon it was a false document…”
But in the case of an illiterate, who is unable to write, he can’t be said to sign a document merely because he impresses his thumbprint thereon. It is necessary to show that such impression was intended to affect or signify the authenticity of the document.
In the case of MAGAZI V. R. (1971) H.C.D. No. 399, the appellant was a revenue collector employed by a District Council. One of his duties was to receive local rates. He was issued with receipt books, all for 1969 local rate. Each receipt had a space for inserting the receipt numbers on which local rate for the previous two years had been paid. He collected sums from taxpayers for both 1968 and 1969. He issued receipts inserting a receipt number in respect of 1969. He also inserted on the receipts, a receipt number for 1968 which was intended to give the impression to the authorities that the tax for 1968 had been collected and handed in some time before and receipts had been issued. The receipt numbers for 1968 were false in that the receipts corresponding to those numbers had been issued to persons other that the complainants. He pocketed the money.
“…Conviction of forgery could not stand except that of fraudulently false accounting…”
Writing is not forgery where it merely contains statements, which are false, but only when it falsely purports to be itself what it is not. In RAMADHANI ATHUMANI V. R (1968) H.C.D. No. 110, where a village executive officer retained a receipt book unlawfully and used to collect the money and pocketed.
“…That the receipt, which he issued, were unequivocally, what the purported to be, therefore they were not false document…”
In EDWARD MPOZI V. R. (1968) H.C.D. No. 438, the accused was convicted of forgery as a clerk with the East African Posts and Telecommunications Administration in Arusha. He failed properly account for a number of telegrams. In some cases, he had altered duplicate receipts, so that they showed a lesser charge than that shown in the original; in others, he had made false entries in summary sheets to indicate that he had received less money than he had. On appeal:
1) Merely to tell a lie in writing is not forgery. The writing must tell a lie about itself, must purports to be something which it is not.”
2) The alteration of duplicate receipts was forgery, for the duplicates receipts purported to show that a different transaction had taken place.
3) However, the making of false entries in the summary sheets, purporting to show that accused had received less money than he had actually received, was not forgery as defined in section 333 of the Penal Code, but fraudulent false accounting contrary to section 317.
