Case No.:

AC.CR-RE V -107-1956

Court:

Court of Criminal Appeal

Issue No.:

1961

Principles

·  Criminal Law—Penal Code, s. 351—Criminal breach of trust—Entrusted property lost through negligence—Dishonest misappropriation and conversion are necessary elements

Because of the “sheer negligence” of the accused, money entrusted to him by his employer was lost.
Accused was charged with criminal breach of trust under Penal Code, 351
Held: Proceedings quashed because prosecution did not sustain burden of proving:
(a) dishonest misappropriation:
(b) conversion to his own use.
Obiter dictum: Negligence cc other misconduct causing the loss of entrusted property may make accused civilly liable

Judgment

(CRIMINAL REVISION)

SUDAN GOVERNMENT v. MOHAMED AHMED HASSAN ALl

AC.CR-RE V -107-1956

.

Advocate: Amin T. Shibli ……. for the accused

M. I. El Nur J. August 24. I956:- The facts of this case are briefly as follows:

Accused was employed by the E.P.B. as a book-keeper in their commercial section of Juba since June 1. 1954. at ¦E300 per annum. His work was then only confined to book-keeping and a certain Basheer Sirrel Khateni was then working as cashier responsible for the Board Treasury The latter was transferred on July 9. 1955 and a certain Abdalla Gumaa southerner) took over the duties of cashier.

On l)ecember 16,1955. the new cashier. Abdalla Gumaa. absconded with the key of his safe and on December 17 , 1955. Mr. Shorey. the manager of the E P B convened a board under his presidency and the n of two of his employees and opened the safe with its duplicate key which was deposited in a sealed envelope in the safes of the Barclays Bank of Juha The board found only £E10.550 in the safe and on checking the amounts, it transpired that the absconding cashier had embezzled and tied assay with £E201.200 together with original key of the safe. Acordingly the manager ordered accused to take over the duties of cashier, over and above his-duties as hook-keeper, and delivered to him the safe with the £E 10.550  remaining in it and the duplicate key.

On January 10,1956, EL Rasheed I ff Mustafa arrived in Iuha on transfer as head accountant of the EP.P, commercial section. and accused who, as stated by the manager P\V. 2 “ was also carrying the duties of t and due to shortage of staff had considerable work to do.” asked the head accountant to take over the treasury from him. hut the head accountant told him to wait until a new (ashier had arrived.

On February 6,1956, the head accountant, without any warning, checked accused’s treasury He found £E 214.905 in cash in the treasury. lie also found that the treasury book was not up to date, and that the last entry in its column of receipts was on January 2. 1956. and in the column of payments out was on January 25.. 1956. The head accountant after having himself posted the unentered receipts and payments orders he found in the safe, discovered that there was a deficiency of £E2 u and at once reported the matter to the manager who put the matter in the hands of the police.

On April 10, 1956. accused was prosecuted by the police before the resident magistrate of Juba. Mr. Mirza Raza Ali Baig on a charge of criminal breach of trust under Sudan Penal (ode s. 351, in respect of the £1292939. and though upon trial he admitted the shortage of the £E292,339 out of the treasury under his charge, he pleaded not guilty of the offence preferred against him. He totally denied having misappropriated that sum and raised the following points in defence:

(a) The original key of the safe was in the possession of the absconding cashier or any other person who, with or without design. had access to it.

)b) There was no key to the office in which the safe was kept.

)c) The office was in guard of one (affir who was not always present in spot.

The learned resident magistrate though clearly accepting those facts as true and undisputed, and though he threw the blame on the management of E.P.B. in so far as they allowed a safe with a recently stolen key to be used for custody of their money against all finance regulations. yet he said

"Leaving aside the neglect on the part of the management, accused should have taken his own care when he resolved to take such heavy responsibility on his own shoulder: If he had doubts about the safety and security of the cash with which he is entrusted he should have taken extra care and put his own seal and signature besides ….. his silence reflects a guilty conscience, and there is no doubt that due to sheer negligence of the accused, the concern was put to heavy loss. Circumstantial evidence as to how. the accused made use of the money is lacking in this case.”

On that very strange reasoning the learned resident magistrate fund accused guilty of having dishonestly misappropriated the £E292.939 found missing from the money entrusted to him and sentenced him to imprisonment for one year and £E50 fine, and in default to be imprisoned for a further three months.

In my view the finding of accused guilty under Sudan Penal Code, s. 351, is wrong and is based on no evidence. The charge against accused was not that he, through his negligence and lack of care, caused the loss of the £E292.939 entrusted to him by the management as the learned magistrate appears to have understood it. Negligence or other misconduct causing the loss of trust property may make the person entrusted civilly liable but will not make him guilty of criminal breach of trust. The gist of the offence proferred against the accused was that he dishonestly misappropriated the sum of £E292.939 or converted it to his own use. The burden of proving that point is on the prosecution who brought no evidence to prove it apart from the failure of accused to account for that loss.

The accused on his part, while totally denying that he misappropriated that sum, pleaded that there was another key of his safe in the possession of another person, and that the office in which the safe was kept had no key and was not properly guarded. It is possible that accused. anticipating to raise in his defence these facts which were accepted by the court as correct, ‘had made away with the money. but it is equally possible that the person who had possession of the original key of the

safe had access to it and ‘stoic that sum. This raises a great doubt and accused is entitled to the benefit of that doubt.

For all above reasons I think that the charge against accused was not proved beyond reasonable doubt and therefore hereby quash the finding and sentence against him and order that he should be released forthwith.