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THE STATE v. AMANKWA & ANOTHER


  • New
  • 1981-01-14
  • HIGH COURT
  • GLR 56-59
  • Print

CRABBE, J.


Summary

Criminal law?-Forgery?-Intent to defraud?-Causing someone to falsify?-Criminal Code, Cap. 9(1951 Rev.) s.295.Criminal Procedure?-Power of court to amend charge?-Criminal Procedure Code, Cap. 10 (1951 Rev.), s. 244.

Headnotes

The first accused was the wife of the second accused. The prosecution alleged that sometime in 1960, Edward Osei Amankwa, the second accused, who was manager of the Bank of West Africa Ltd., Berekum, went to Japekrom, to see one Kofi Num, a customer of the bank. He reported to the said Kofi Num that there was some trouble about his, Num's, savings bank book, and that he required it for transmission to the head office in Accra. Num gave the book to the second accused.On the 23rd April 1960, the second accused told Mr. Tetteh, P.W. 10, the cashier at the Bank of West Africa Ltd., Berekum, that Kofi Num had asked to withdraw G1,000 from his savings bank account, which accused had paid and that P.W. 10 being the officer who normally enters up withdrawals in savings bank books, should enter the said withdrawal of G1,000 in Num's book. The second accused then gave to P.W. 10 the savings bank book, together with a withdrawal form duly completed, with a thumb-print purporting to be that of Kofi Num.It turned out that Kofi Num had not in fact withdrawn the sum of G1,000 but the second accused had withdrawn the amount for himself, had got his wife, the first accused to thumb-print the withdrawal form, and had got the cashier, P.W. 10, innocently to make the necessary entries, both in the savings bank book and in the bank?'s cash books.On these facts the police charged the first accused in count 2 of the charge sheet with forgery of the withdrawal form, contrary to section 314(2) of the Criminal Code, Cap. 9, (1951, Rev.) ?"with intent to defraud the Berekum branch of the Bank of West Africa Ltd.?", and in count 3, jointly with the second accused with stealing the sum of G1,000. The second accused was [p.57] charged in count 1 with abetment of forgery, contrary to section 46 (1) and section 314(2) of the said Cap, and in count 4 with falsification of accounts, contrary to section 29(1) of Cap. 9.The particulars of offence in count 1 (the abetment of forgery) read:-"Edward Osei Amankwa, on the 25th day of April, 1960, at Berekum in the Brong-Ahafo Judicial Division of Ghana, did encourage one Beatrice Amankwa to commit forgery in that he procured the said Beatrice Amankwa to affix her thumb-print intending it to pass as that of one Kofi Num on a withdrawal form of the Berekum Branch of the Bank of West Africa Ltd., which form was dated 25th April, 1960, without the authority of the said Kofi Num with intent to defraud the said Bank of the sum of G1,000."The particulars of offence in count 4 read:-"Edward Osei Amankwa at the same time and place aforesaid, did cause one Joshua Okoe Tetteh to falsify a Bank of West Africa Ltd., Berekum, Savings Bank Book No. A/1003256 belonging to one Kofi Num, with intent to facilitate the commission by himself and one Beatrice Amankwa of the crime, to wit: Stealing,"At the close of the case for the prosecution, counsel for the defence submitted that the accused persons had no case to answer, by virtue of the main grounds that:-(a) Counts 1 and 2 are defective because the intent to defraud is wrongly laid. The person defrauded is Kofi Num, not the bank.(b) Count 4 is bad, because section 295 does not create any offence of " causing someone to falsify . . .?" The accused must have done the falsification himself.

Judgement

SUBMISSION of no case to answer.

Crabbe, J. In dealing with the two submissions of learned counsel for the defence I consider it my duty, before deciding to call upon each accused person to answer the charges, to examine the evidence adduced by the prosecution and to determine whether there is a prima facie case against the accused persons on the various counts on which they are charged.

The case against the second accused on count 1 depends on the evidence against the first accused on count 2. As regards the submission by learned counsel that the intent to defraud is wrongly laid in the Bank of West Africa Ltd., I would say in the words of the judgment of C.O.P. v. A. S. Addaquay1 that:

"the short answer to this submission is that where as in this case, by virtue of section 317 of the Criminal Code an intent to defraud is a constituent element of the offence of forgery it is not necessary to allege in the charge or information or to prove an intent to defraud any particular person. It is sufficient to prove that the accused did the acts charged with intent to defraud and this intent is to be inferred from the deliberate and wilful use by the appellant of the forged instruments to obtain payment of the money the subject of the third charge."

It seems to me that the same principle would apply where the charge is under section 314 of Cap. 9. However, I consider the evidence of P.W. 9 in relation to the finger-print of the first accused on exhibit B as very doubtful and highly unsatisfactory. Besides, it appears to be the law that the "intent to defraud" in section 314 (1) and (2) of Cap. 9 "must be on the part of the perpetrator of the substantive crime", which in this case is the stealing of G1,000: see Amoah v. C.O.P2 and also Mensah v. [p.59] Regina3. What the first accused is alleged to have done is that she forged exhibit B to enable the second accused to steal the sum of G1,000 from the Berekum branch of the Bank of West Africa Ltd.

As regards count 3 there is not a shred of evidence that the first accused stole any money from the Bank of West Africa Ltd., Berekum branch. I accordingly hold that there is no case for the first accused to answer on counts 2 and 3 and she is accordingly discharged on these counts. Consequently the second accused is also discharged on count 1.

I agree with the contention of counsel for the defence that section 295 (1) of Cap. 9 does not create an offence of causing someone to falsify accounts. But there is prima facie evidence in my view that the falsification of exhibit A was done by Joshua Okoe Tetteh on the instructions of the second accused. The defect on the face of this count is quite apparent and objection should have been raised immediately after the information had been read over to the second accused. I would therefore regard the words "cause one Joshua Okoe Tetteh to" as mere surplusage and order by virtue of the power contained in section 244 (2) of Cap. 10 that the information be amended by deletion of these words: see R. v. Fraser4, Dankwa Ors. v. The King5 and Regina v. Smith6. Since I am of the opinion that the second accused would not in any case be prejudiced or embarrassed by the deletion of the word "cause one Joshua Okoe Tetteh to" I order that the particulars of count 4 of the information be amended to read as follows:

Edward Osei Amankwa at the time and place aforesaid, did falsify a Bank of West Africa Limited, Berekum Savings Bank Book No.A/1.003256 belonging to one Kofi Num, with intent to facilitate the commission by himself and one Beatrice Amankwa, of the crime, to wit; stealing."

I hold therefore that there is a case for the second accused to answer on counts 3 and 4 and he is accordingly called upon on these two counts.

Decision

<P>Submission of no case to answer overruled.</P> <P>Second accused called upon.</P>

Plaintiff / Appellant

K. Narayan

Defendant / Respondent

K. E. Boison

Referals

(1)  C.O.P. v. Addaquay, W.A.C.A., January 22, 1956, unreported.

(2)  Amoah v. C.O.P., Court of Appeal, June 19, 1959, unreported.

(3)  R. v. Mensah [1959] G.L.R. 314, C.A.

(4)  R. v. Fraser (1923) 17 Cr. App. R. 182; 87 J.P. 208; 40 T.LR. 81, C.C.A.

(5)  Dankwa v. The King (1951) 13 W.A.C.A. 134.

(6)  R. v. Smith [1950] 2 All E.R. 679; 34 Cr. App. R. 168

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