Principles

·  CRIMINAL LAW— Cheating - “Deceived” - Sudan Penal Code, s. 357 – Government ” not a person” - Government Officer guilty of criminal breach of trust for conspiring  with vendors who cheated could not be ‘deceived”.

A sale of goods to the Ministry of Education in excess of authorized prices, in violation of Residual Control Ordinance 1950, s. 10, did not constitute the crime of cheating under Sudan Penal Code, s. 357, where the Education Officcer who ordered and received the goods had conspired with the vendors to effectuate the illegal sale , since the Officer was not “deceived” as required by Sudan Penal Code, s. 357.

Judgment

Advocates: Mohamed Ibrahim El Nur and Mubarak Zarroug ... …………..for accused.

MA. Abu Rannot, C.J December 4, 1960: — The two accused were charged and convicted under Residual Control Ordinance 195o, s. 10 .for selling goods to the Ministry of Education in excess of the fixed or authorised prices.

They were also charged and convicted for cheating under Penal Code, s. 362. I shall deal first with the case under the Residual Control Ordinance.

It has been proved that the two accused delivered to the Province Education. Officer (the third accused) the following goods on the dates shown against each lot:

I. On January 2, 1960, 1400 yards striped poplin and

700 blankets for ..        ..          ..          ..          ..          .. £S. 1043

(2) On January 9, 1960, 3000 yards blue poplin for .. £S. 1026

(3)  On January 9, 1960, 16000 yards plain poplin for..  £S. 5408

£S. 7477

It has also been proved that when the price of the second and third items was paid to accused on January 9, 1960, the whole quantity of goods mentioned therein was not delivered by them.

On January 13, 1960 some further 3200 yards of drill cloth were sent by the two accused to the store. It should be noted that this type of cloth differs from any of the other poplin cloth and it is also of a very inferior quality.

The accused denied that the goods found at the store are the same goods which were delivered by them. This is a very weak defence in view of the abundant evidence before the Court that the same goods were supplied by them. They also denied that the 3200 yards of drill were supplied By them. This is also a lie, and their learned advocate in his appeal concedes that these goods were also supplied by them, and that they made that defence order to avoid a criminal charge for selling goods in excess of fixed prices.

The Court found that the two accused received from the Government a sum of £S.3414 in excess of the authorised prices. The Court did not deduct from this amount the sum of £S.225, which was the cost of transport between Khartoum and Juba. The learned advocate for appellant submits that this amount should be deducted, as it is only just and equitable to do so.

The Court awarded the following sentence against the two accused under this charge:

(1) imprisonment for one year for each of the two accused;

(2) confiscation of all cloth and blankets which are the subject of this charge;

(3) fine of £S.7477 for both of them jointly, and in default of payment imprisonment for 6 months.

I am satisfied that the finding of guilty under the Residual Control Ordinance, s. 10 is correct, but the sentence requires alteration.

I confirm the maximum sentence of imprisonment for one year against each. This, in my opinion, is right in view of the fact that the accused were conspiring with the third accused to rob the Government of a large amount of money.

As to forfeiture of the goods, I think Residual Control Ordinance 1950, s. 10(1) (c) does not apply here. Ownership of the goods has already been transferred to the Government, and the goods to be forfeited should be the property of the offender. It is of course intended by the legislature that forfeiture should apply in cases of hoarding or concealment of goods which were found with the offenders. The appropriate sentence in addition to the term of imprisonment should be a fine. The fine should in the cir cumstances be more than the profit received by the accused in excess of the fixed price.

The accused received £S.3189 in excess of the lawful price and the fine should be more than this amount. In my view they should be fined £S.4000. The imprisonment in default of payment of the fine should be 3 months (see Penal Code, s. 70). It is observed that the Court did not order the levy of the fine by attachment of the accused’s movable property. I think such an order is necessary in view of the fact that the term of imprisonment in default of payment of the fine is short, and I have therefore made such an order.

Charge of Cheating:

I do not think that the correct charge against the accused is that of cheating. If I were in the place of the Court, I would have charged the three accused of the offence of criminal conspiracy under Penal Code, s. 95. The evidence shows that the three of them conspired to commit the offence of criminal breach of trust by the third accused, and that the means used for committing such an offence is to sell goods to the Government in excess of the fixed prices and also to supply a quantity less than the quantity appearing on their invoices in support of the payment orders. It is now too late to send the case back for such a charge to be framed against them.

The definition of cheating under Penal Code,s. 357 reads: “Whoever by deceiving any person .... “ The two accused did not deceive the Education Officer, as the e shows that he knew well what they were supplying to him and that he was in full agreement with them as to the quantity and quality of goods to be supplied. If I hold that the third accused was cheated by the first two accused, it would then be difficult to hold that he committed the offence of criminal breach of trust. I therefore refuse to confirm the finding of guilty under Penal Code, s.362.

Case against third accused:

The charge sheet against this accused consists of two counts. The first count reads that at the beginning of the month of January, he was entrusted with 4756 yards of poplin, which cost (S.1607.528m/ms)., and that he dishonestly converted them to his own use.

The second count reads that he caused wrongful gains to the first and second accused, and wrongful loss to the Government (Ministry of Education) by purchasing goods in excess of the lawful prices, and that the loss to the Government amounted to £S.3654.200 m/ms.

As to the first charge, it is contended by the through his advocates that the Court did not take into consideration the 3200 yards of drill cloth which were delivered at the store on January 13, 1960, and that if that quantity is taken into account, the total number of yards would not be less than the total quantity of goods for which the price was paid.

I agree that the 3200 yards was excluded fromthe quantity supplied because the first two accused denied that they ever supplied such goods. The denial was made by them because they were afraid of being faced, with a criminal charge for selling goods in excess of the fixed or authorised prices. This may be so, but the learned advocates should not overlook the fact that had it not been for the fact that the ‘Assistant Director of Education was then enquiries and that he appointed a Board to examine and count the goods supplied by the first two accused and accepted by the third accused, these 3200 yards of drill would not have been supplied. Another fact which should have been considered is that the 3200 yards are of very inferior quality, and that its description does not correspond with the description of the goods for which the price was paid.

The learned advocates raised the point that the goods found in the store on January 13, 1960 were not the goods supplied by the first two accused and agreed to by the third accused. In my view the evidence produced before the Court leaves no doubt that the goods found in the store were the goods which were supplied by the first two accused. The possibility that the goods were changed by the two stbre-keepers in collu sion with a merchant or merchants in Juba is too remote. There is no evidence at all that the goods which were delivered on January 2, 1960 or January 9, 1960 were tampered with. If any change were made during the daytime, the third accused could have seen it, as he was present in his office near the store itself, and if it were made at night, or after the’ working hours, the Ghaffir would have reported it as he has done in the case of the 12 bales of Khaki and parcels which were taken away by the accused.

The learned advocates also contend that the three accused are not experts in goods, and that it is difficult for them to know the exact quality or description of the cloth. If it can be conceded that the third accused is not an expert in cloth, it Can never be accepted that the first and second accused, who are dealers in cloth, did not know the quality of the goods supplied by them. Hassan Surur Rustom, the tenth prosecution witness, was an accountant, and naturally he can only speak about the material or the value of the cloth if he sees the trade mark.

The learned advocates contend that accused did not know of the existence of the financial circulars dealing with purchases by Government units. Even if it is conceded that he did not, the evidence of the Assistant Director of Education proves that he was instructed by him two months before these purchases were made that he should not buy goods without in tenders in case the Equatoria Products Board had not got the goods.

As to the blankets, though there were no blankets in stock with the Equatoria Products Board in January 1960, the third accused did not make any enquiry about them. His last enquiry was on January 1, 1958 in respect of cloth which was supplied by the Board and delivered to the Ministry of Education.

Another point was raised that there is evidence that some purchases in the past were made by private treaty. The evidence shows that such purchases were only made in emergency circumstances. Here there was not such an emergency.

I now turn to the second count of the charge.

In my opinion the evidence is overwhelming that accused in agreement with the first and second accused purchased goods at a very much higher price than is fixed or authorised by law. This can be proved by accused’s conduct. The goods supplied were not properly described in the invoices. He deliberately departed from the procedure for the purchase olsuch goods. He paid the price of the goods before all the goods were supplied. There was no excuse whatsoever for him to pay the price before all the goods were supplied. The explanation made by him that the payment was made on Saturday, because Sunday is a holiday, does not convince anybody. Why should the payments not be delayed until Monday or until the whole quantity is supplied?

Then, after the enquiry by the Assistant Director of Education and the Police investigation, he took away the files which prove the existing stocks in the store and how the goods were distributed.

Another piece of evidence which proves his dishonesty is the disappearance of 10 bales of Dainooriya and the fact that he removed from the store after office hours 12 bales of Khaki and some other parcels. The Ghaffir who gave evidence against the accused has no enmity or grudge against the accused. I do not want to burden this judgment with lengthy and detailed facts which prove his guilt, since I am satisfied that the conviction against him is correct, and I therefore confirm the finding of guilty under Penal Code, s.351.

Sentence:

The Court passed the following sentence on accused:

(1) imprisonment for five years;

(2) fine of £S.1608.528m/ms., and in default of payment of the fine, to imprisonment for 3 years.

In my view the substantive term of imprisonment is on the heavy side, having regard to the fact that he was a first offender and the amount which he wrongfully gained is not known with certainty. The appropriate sentence in my view is three years imprisonment, as from August 13, 1960.

Lastly, advocate for the first and second accused applied for recommendation for special treatment in view of the fact that they are over 30 years of age and that each of them pays a business profits tax amounting to £S.559 for one, and for the other, £S.189. According to Criminal Court Circular No. 9, they are entitled to such special treatment, and I make a recommendation to that effect.