(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. ABDEL GADIR AP ALT

AC-CP-145-1970

Principles

  Criminal Law—Cheating by issuing cheque without funds—Penal Code, s. 362B (b), imposes an absolute criminal responsibility on drawer of the cheque—No question of mens rea

The Penal Code s. 362B (b) imposes an absolute criminal responsibility on the drawer of the cheque, fixed on the date of payment. No question of mens rea should arise.

Advocate: El Sir Khalil for the accused

Judgment

Osman El Tayeb C.J. April 21, 1970 : —The facts of the case as proved and admitted are very simple: On January 8, 1970, accused made and executed a cheque for the value of £S.789.000m/ms. payable on February 2, 1970 in the name of complainant as holder, on Barclays Bank, Sharia El Gamhoria. On the payment day the cheque was presented to the bank for payment, but no payment was effected and it was returned to drawer. Accused had no funds to meet the cheque and his account showed a debit of about £S.225.000m/ms.

The learned Magistrate charged accused under the Sudan Penal Code, S. 362B (b), and accordingly convicted him, and sentenced him to imprisonment for three years and fine for the value of the cheque, and in default of payment to imprisonment for one year. It was further ordered that the fine be levied by seizure and sale of accused’s property, so that it might be paid to the holder of the cheque

Accused’s only defence before the court, and as repeated by his advocate, .is that he was hoping to secure sufficient funds to meet the cheque on the day for payment, that he had given the cheque in good faith and that he had requested the holder to delay the presentation for some time. Of course nothing of what was said can amount to a defence. This section which was recently enacted imposes an absolute criminal responsibility on drawers of cheques, fixed on the date of payment. No question of mens rea should arise. Once the cheque is dishonored for any of the causes shown in the section the offence has been committed. It is immaterial that the cheque was given in good faith with the intention, hope or expectation of securing funds to meet it, or that honest or genuine endeavors were made to secure those funds.

Pausing for a while on those causes: these briefly are (a) lack of account, (b) lack of sufficient funds, (c) countermanding without reasonable cause and (d) lack of credit available for payment; which seem to be not applicable to the present case, where accused had an account, but that account showed a debit. We should not be puzzled by this because here the position is worse than that of the drawer who has insufficient funds.

I think the conviction is correct: that I confirm.

As to the sentence, I think it is too high. Accused being a first offender it would be adequate punishment to give him three months’ imprisonment together with a fine and the other orders.