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AMOAKO v. COMMISSIONER OF POLICE


  • appeal
  • 1961-03-03
  • SUPREME COURT
  • GLR 134-136
  • Print

VAN LARE, SARKODEE-ADOO AND AKIWUMI, JJ.S.C.


Summary

Criminal law?-Stealing?-Absence of dishonest intent.

Headnotes

A cheque book belonging to the Africa Insurance and Import Company was lost. It was recovered by the police and thus came into the possession of the appellant, a police constable. Using a leaf from that cheque book he issued it in favour of one of his creditors. In fact, the appellant had no bank account. He was convicted of stealing the cheque leaf and of defrauding with false pretences. On appeal to the High Court the conviction and sentence for the false pretences were quashed, but the conviction for stealing was upheld. The learned judge (Apaloo, J.) said: "The appellant did not claim to have the authority of the owners to appropriate their cheque in this way but explained that he took out this cheque by mistake ... and that he intended to issue a cheque belonging to his brother. In this he was disbelieved ... I am of opinion that the special facts of this case justified the learned senior magistrate in drawing the inference that had Africa Co. known of the appropriation of this cheque by the appellant, they would not have consented. They presumably reported the loss of the cheque to the police."

Judgement

APPEAL against a conviction for stealing, before Bruce-Lyle, Esq., in the District Magistrate's Court, Kumasi on the 19th January, 1960, which was confirmed by the High Court, Kumasi, (Apaloo, J.) on the 12th November, 1960.

JUDGMENT OF VAN LARE, J.S.C.

Van Lare J.S.C. delivered the judgment of the court. The appellant in this case was a policeman who had in his custody and possession at all time material to the charges preferred against him a cheque book belonging to the Africa Insurance and Import Company. A complaint had been laid by the insurance company concerning their missing cheque book which was recovered by the police from a certain person concerning whom enquiries were proceeding. It was during the course of these investigations that the appellant came into possession of the cheque book. He used a leaf of this cheque book and gave it to a creditor apparently in the hope of avoiding worries from him. It turned out that the appellant in fact had no banking account. The very next day the appellant took steps to prevent his said creditor from presenting the cheque he had made out in his favour. Notwithstanding this warning the creditor presented the cheque and was told that the drawer, that is the appellant, had no account at the bank. The events led to the appellant being prosecuted and convicted for the offences of stealing the cheque leaf, property of the insurance company, and of defrauding by false pretences, i.e. that he, with intent to defraud his said creditor, gave the creditor a cheque to cover the goods he had bought on credit.

On appeal to the High Court the conviction on the charge of false pretences was quashed, but the conviction on the charge of stealing the cheque leaf on which he wrote out the cheque purporting to settle the [p.136] outstanding debt against him was confirmed. It is absolutely clear on the evidence that the appellant had no fraudulent intent whatsoever in all his acts including using a leaf from the cheque book he happened to be possessor of at the time in order to ward off his said creditor to whom he purported to have made out a cheque in settlement of the debt he had long owed. We are satisfied that there was never any intent to defraud and the circumstances of the case clearly show that the appellant had no intent of dishonest appropriation when he used someone else's cheque leaf.

The learned judge of the High Court erred in not considering the main intent of the appellant. If he had done so he would naturally have felt himself constrained also to find in favour of the appellant on the charge of stealing the cheque leaf.

Under the circumstances as we find that there was no intention of dishonest appropriation of the cheque leaf in respect of which the charge of stealing had been preferred against the appellant, we quash the conviction recorded on that charge against the appellant and enter an acquittal on the first count also. The appeal is allowed; the appellant is accordingly discharged on that count.

The sentence of one day's imprisonment and fine of G10 substituted by the learned judge for that imposed by the trial senior magistrate is set aside. If it has been paid it should be refunded to the appellant.

Decision

<P>Appeal allowed. </P> <P>Conviction quashed.</P>&nbsp;

Plaintiff / Appellant

J. Appiah for V. Owusu

Defendant / Respondent

K. Dua Sekyi

Referals

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