Thanker Singh v. R., Crim. ( H.C.D. 1969) App. 715-D-68, 15/1/69, Biron J.

The appellant was convicted on his own pleas, of failing to complete and forward to the Director of the National Provident Fund, the appropriate forms in respect of contributions to the Fund, and of failure to pay into the Fund the contributions from his employees, c/s 38(1) and 38(1)(d), National Provident Fund Act, No. 36 of 1964. He was sentenced respectively to a fine of Shs. 200/- or imprisonment for two months in default and a fine of Shs. 400/- or imprisonment for two months in default. He is now appealing from the sentences.

Held: “In mitigation the appellant’s counsel is recorded as stating that the appellant employed his labour on contractual work from the Dodoma District Council, and as the Dodoma District Council had delayed payments due on the contract, he was therefore unable to forward the contributions towards the Provident Fund ….. There is nothing I the record to indicate whether the

magistrate believed the plea in mitigation or not. The facts stated in the plea, if untrue, could easily have been disproved, and as they are by no means

improbable they may will be, in fact probably are, true, therefore, in the absence of any contradiction they should be accepted as true. To my mind, the fact that the appellant  Himself did not receive payment from the District Council, and therefore was unable to forward the contributions to the Fund, constitutes a very strong mitigating factor, particularly so, as submitted by learned counsel who appeared for the appellant at the hearing of the appeal, as he is not a rich man and he was not therefore deliberately withholding the contributions of his employees, and his should have been taken into consideration by the magistrate in imposing sentence. The appeal is accordingly allowed and the fine awarded on each conviction is reduced to Shs. 100/-“.