Stealing by Clerk or Servant Contra. Sec. 3.90 (6 )-Fraudulent Appeal False Accounting Contra. Sec. 438 (b) C.C.-Accused discharged in one count at Magisterial Investigation-that count revived by High Court-Order of Restitution.

Held: Conviction and order for restitution quashed and appeal allowed. Court. The facts of the case are sufficiently set out in the judgment

E. J. A. Taylor for Appellant.

A. R. W. Sayle for Crown.

The following judgment was delivered:-

BUTLER-LLOYD, J.

This is an appeal against conviction by the High Court of Enugu Division dated 16th October, 1H34, of

(1) Stealing by Clerks and servants contra. section 390 (6) of the Criminal Code.

(2) Fraudulent false accounting contra. section 438 (b).

The grounds of appeal as amended are that:-

(a) At the preliminary investigation before the Magistrate's Court at Enugu the Court decided that no case had been made out on the charge under section 390 (6), but committed the accused to the High Court on the charge of fraudulent false accounting only: at the trial before the High Court the accused was charged not only with the latter offence for which he ·had been committed for trial but also with the other count of stealing contra. section 390 (6) on which he had not been committed for trial, and on which the Magistrate bad found there was no case to answer.

(Ii) That there was no evidence before the High Court to support the count of fraudulent false accounting contra. section 438 (b) of the Criminal Code.

Counsel for the appellant appeared at first to argue that the decision of the Magistrate not to commit was equivalent to autrefois acquit which clearly cannot be maintained. His argument however then turned upon the fact that the court of stealing contra. section 390 (6) having been specifically rejected the Court could subsequently revivify and re-insert this charge; he refers to section 18 of the Protectorate Courts Ordinance No. 45 of 1933 which provides that criminal causes in the High Court shall be tried after committal by a Magistrate's Court holding a preliminary investigation or summarily in the manner and subject to the conditions laid down in the Criminal Procedure Ordinance so far as the same are applicable. Order XXXIX (Part IV p. 32 of Rules of Courts K o. 5 of 1934) gives the rules for trials after committal to the High Court, and sets out that criminal causes committed to the High Court for trial after a preliminary investigation shall not be tried upon information, but such trials shall be commenced by the Court placing upon record the charge or charges made against the accused and thereafter shall, subject to the provisions of section 19 of the Ordinance and of any orders made thereunder, be conducted, so far as may be in the manner laid down in Part III of the Criminal Procedure Ordinance. This, it is argued, confers no powers on the Court of altering or adding to the counts on which the accused is committed for trial by the High Court. To this Crown Counsel replies that there is no question of an information in trials before the High Court after committal by a Magistrate: section 77 of the Criminal Procedure Ordinance as amended by Ordinance No. 48 of 1933 section 14 definitely lays it down that subject to the provisions of the Protectorate Courts Ordinance, 1933 trials before the High Court shall be conducted summarily.

It is clear that there was no information here. The addition to Order XXXIX of Rule 5 of 1934 made by Rule of Court No.7 of 1934 dated 13th November, 1934, was not in force when this case was tried: it therefore has to be considered whether before this amendment there was any power in the High Court after committal to add a charge or charged to those on which the accused was committed. A distinction must be drawn between cases which are tried after committal and those tried summarily.

In this case the question is not whether the Court was empowered before the amendment to Order XXXIX of Rule 5 of 1934 to alter or amend the charge on which the accused was committed-this is now of purely academic interest-but whether, after the Magistrate's Court had at the conclusion of a preliminary investigation found that there was no case for the accused to answer on one of the two count's and committed him for trial on the other, the High Court could revive such charge and add it to the charge on which the accused was actually committed for trial. In the opinion of this Court there was in the circumstances no such power in the Court of trial.

With regard to the second ground of appeal. namely, that there was no evidence to support. the charge contra. section 438 (b), Counsel for the accused relied on R. v. Williams (1899) 19 Cox C.C p. 239; the defendant in that case was collector of poor rates whose duty it was to keep the overseers' receipt and payment book which showed the state of accounts as between the overseers and the Parish Authorities. The balance, which was correct as to the difference between receipts and expenditure, he stated as  balance in hand." He was unable to produce the amount stated and it was ,held on a case reserved that the words" in hand" did not make the entry false, the account being a correct record of receipt and expenditure, and that the collector could not be convicted of falsification of accounts even if he had misappropriated the amount.

It was pointed out by Crown Counsel, referring to Russell on Crimes Vol. II p. 1348, that the entry made was' balance in hand £131 10s. 5d.' and that that sum was the correct sum for which the overseers were responsible to the parish and ought to have been in the possession of the defendant, but it was, as between the overseers and the parish, a true entry.

The case cited is therefore essentially different from the case before this Court in which the defendant made an entry in his employer's book for which he was responsible, purporting to set out the state of accounts between his employers and himself and not between his employers and some other party.

The accused in the present case was charged with making one false entry and only one, to wit, an " entry in a cash book "belonging to Messrs. John Holt and Company, Limited, his " employer, purporting to show that on the said day there was a " cash balance of £792 5s. 7d. standing to the credit of the said " Messrs. ,John Holt and Company, Limited, whereas on the said " day the ' actual cash balance on hand consisted of the sum of " , £539 2s. 7d.' "

It is dear on the evidence of the principal witness for the prosecution that on the day in question £792 5s. 7d. was in fact the correct cash balance standing to the credit of Messr.. John Holt and Company, Limited, on the accounts between them and the accused. It is therefore obviously absurd to suggest that the entry the subject of the charge was a false entry. It follows that the accused ought not to have been convicted of making a false entry and the conviction to that effect must be quashed. The position might have been different had the particulars of the offence been otherwise framed.

The order as to restitution is obviously bad on the face of it.

There was no evidence that the money in respect of which restitution was ordered was in the possession of the accused. The order of restitution was really a civil judgment for a debt with a sanction of a year's imprisonment on failure to pay. For that reason the order of restitution is bad and must be quashed. Apart from that, the conviction upon which the order for restitution was made being quashed the restitution order falls with it.

Both convictions and the order for restitution are quashed and the accused is discharged.