SUDAN & WGOVERNMENT vs. FAYEZ GHALI GIRGIS ANNIS MICHEAL

(AC/CP/32/1957)

Principles

·  Criminal law — bank accountant wrongly debiting customers’ accounts — criminal breach of trust Sec. 347 of the Penal Code.

·  Procedure — joint trial of two accused — not concerned together in all charges — misjoinder — incurable irregularity.

A bank accountant who fraudulently debits customers’ accounts and credits the money to his own, or a third party’s account, is guilty of criminal breach of trust under Sec. 347 of the Penal Code.(1)

A bank accountant who fraudulently debits customers’ accounts and credits the money to his own, or a third party’s account, is guilty of criminal breach of trust under Sec. 347 of the Penal Code.(1)

Reference for Confirmation.

The first accused was charged with criminal breach of trust. He was an accountant of Barclays Bank at Wad Medani, and had, on at least three occasions fraudulently c his own account with the value of cheques intended for, and paid in by, customers. On one occasion he gave a cheque which had been returned unpaid to the second accused, and the latter purported to pay it into his own account at the bank, and was credited with its value under instructions from the first accused.

(1) Sec. 347 of the Penal Code states

Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.

Held

(i) the first accused was guilty of criminal breach of trust.

(ii) the second accused should not have been tried jointly with the first accused as he was not concerned with him in all the charges.

M.A. Abu Rannat C.J. An important procedural point was raised in respect of the joint trial of the two accused. It seems to me that there was a misjoinder in this case. I refer to sections 199 to 206 of the C.C.P. prescribing the rules for this purpose(1). The second accused is not charged with having committed or having been concerned with all the acts of the first accused. He must be concerned jointly in all the acts of the first accused in order to justify a joint trial. In my view there was a misjoinder of the parties, since we cannot ignore the provisions of sec. 206 of the C.C.P. This is not only an irregularity, but an irregularity which is not curable. This is supported by the authority of the Privy Council which is quoted in Sohoni’s Criminal Procedure, 14th. ed. p. 1053. The judgment of the Privy Council reads

“Their lordships are unable to regard the disobedience to an express provision as to mode of trial as a mere irregularity.”

This view was also followed in a House of Lords case in (1894) A.C. 494(2) where Lord Russell C.J. expressed his view with regard to joiner of parties in the following words

“If unwarranted by an enactment or rule, it is in my view much more than an irregularity.”

(1) Sec. 199 of the C.C.P. states:

For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the

cases mentioned in sections 200, 201, 202, 203 and 206.

The relevant parts of sec. 206 are as follows:

The following persons may be charged and tried together, namely,

c) persons accused of more than one offence of the same or similar character committed by them jointly;

d) persons accused of different offences committed in the course of the same transaction -

(2) The case referred to is Smurthwaite v. Hannay. Ed.

This means that the second accused should have been separately tried, and for this reason I think confirmation of his conviction must be refused. I also have doubts whether the second accused knew that the first accused was committing criminal breach of trust in respect of the cheque he received from him.

Let us now take the case of the first accused. I have no doubt in my mind that the conviction of this accused was proved. The first ground of appeal is that there was no trust and that therefore the first accused cannot be convicted of criminal breach of trust. The answer to this point is quite simple. The relation between a banker and a customer is in law that of debtor and creditor, but this does not necessarily mean that the banker cannot be a trustee for the customer, at any rate for this purpose. The customers who were concerned in this case were entitled to draw their money on demand. If the bank failed to pay them the amounts due the bank would be civilly liable for breach of contract, but suppose that the banker fails to pay, not because he has incurred losses, but because he has misappropriated the money to his own use, of what offence would he be guilty ? Surely he must be guilty of criminal breach of trust. Sec. 347 of the Penal Code is wide. It does not only speak of property entrusted to the accused, but it speaks of “dominion” over property. This phrase is wide enough to include the control of money entrusted to a bank.

The first accused was the most senior clerk in the bank. He no doubt had control over property deposited with the bank by the customers. The legal contract between the bank and its customers does not allow the bank to transfer the funds of one customer to another without the authority of the former. The first accused, as servant of the bank did this, and did it without the bank’s authority. He did all this dishonestly in order to convert the amounts which are the subjects of these charges to his own use.

I feel that I can only repeat the judgment of the Court below if I take every point raised in the memorandum of appeal. No fresh point was raised in this memorandum, and all these points were specifically dealt with by the Court below. The case was well tried and the President of the Court, Sayed Ali Ahmed Bitar, should be commended for the clear picture he presented to the confirming authority of the complicated transactions which were the subject of the charges.

Conviction of first accused confirmed.

Conviction of second accused not confirmed.