Case No.:

PC-CR-APP-163- (Ed Darner)

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Criminal Law—Criminal breach of trust—Penal Code, s. 35 property lost through negligence—misappropriation and dishonest intention are necessary elements to be proved

Because of accused’s negligence, money entrusted to his care disappeared. He was convicted of criminal breach of trust under Penal Code, 5. 355.
Held: A conviction for criminal breach of trust cannot be based on negligence alone; prosecution must prove (a) criminal misappropriation, i.e., ‘ causing unlawful gain to himself or another or unlawful loss to any person,” and (b) dishonest intention.

Judgment

(PROVINCE COURT)

SUDAN GOVERNMENT v. MUSTAFA MOHAMED ALl

PC-CR-APP-163- (Ed Darner)

Fatih Awouda, Acting P.J—In cases of criminal breach of trust, after the trust has been proved, the next important ingredient is to prove the dishonest intention, the burden of proving such dishonest intention lies on the prosecution. The term “dishonestly” is defined in Penal Code, s. 18: “A person is said to do a thing ‘dishonestly’ who does that thing with the intention of causing wrongful gain to himself or another or of causing wrongful loss to any other person.” In other words, mens rea at the time of doing the act must be established. Such guilty intention is inferred from the circumstances of each case.

In the present case the trust is undisputed. It is also an established fact that on April 16, 1960. a sum amounting to £S.62, was discovered to be missing from the safe for which accused was the only person responsible. It is true that failing to account for the disappearance of such a sum on the part of accused is a piece of evidence which tends to prove that it was accused who misappropriated the money, i.e., caused unlawful gain to himself or another, or unlawful loss to any person, but it is not conclusive to prove the guilt of the accused.

The mere fact that the accused failed to produce the money which was entrusted to him is not in law sufficient to establish that he has committed the offence of criminal breach of trust in the absence of other evidence to prove some kind of conversion 3 Gour, Penal Law of India 1870 (6th ed. I956 Ratanlal holds a similar view on the matter. Ratanlal, Law of Crime 1017 (19th ed. 1956) states:

“In cases of criminal breach of trust, failure to account for the money proved to have been received by the accused or giving a false account as to its use is generally considered to be a strong circum stance against the accused. But accused must not be convicted on it alone. It is only an indication, a piece of evidence pointing to dis- honest intention, and must be considered along with other facts of the case.”

Now, considering the circumstances of this case, is there any evidence to prove that accused dishonestly dealt with the money in any of the modes enumerated in Penal Code, s. 347? In my opinion there is none except that he failed to account for the sum. He discovered the deficit on April 16, 1960. He immediately reported the incident to his superior without making any effort to make good the deficit prior to his report. His books of account were in order, and no single trace of alteration or deletion was detected. Public servants who commit this offence almost always make some alterations in their books in order to keep what they have done under cover. Accused gave an explanation that he sometimes left the key of the safe at his desk and thus the safe became accessible to a stranger. This amounts to negligence on his part and negligence in this sense is not a punishable crime.

To sum up, the prosecution has failed to establish accused’s dishonest intention.

Accused’s advocate informs me that a false duplicate key was found in the safe after the trial was over. I shall not consider this point as it has not been proved before the court and I need not send the case back for retrial.

I quash the proceedings and order release of accused forthwith.

Editors’ Note. —Accord, Sudan Government v. Mohamed Ahmed Hassan Au, AC-CR-REV-107-1956 (1961) S.L.J.R. 26, 28 (M. I. El Nur J.).