Cheating, Obtaining credit by false

pretence & Receiving or retaining

stolen property
Cheating

 Under section 307 of the penal code, a person commits cheating

when by means of any fraudulent trick or device obtains from any
other person anything capable of being stolen, or induces any other
person to deliver to any person anything capable of being stolen or to
pay or deliver to any person any money or goods or any greater sum
of money or greater quantity of goods than he or she would have
paid or delivered but for such trick.

 The offence is a misdemeanour punishable by imprisonment for

three years
Cheating cont’d

 In effect, cheating is obtaining property of another by a deceitful of illegal

practice. In Tanzanian case of Ali v. R the appellant represented to a
simple village woman that he was a magician who could increase money
by his art.
 With the village woman’s consent, he put her money in a hole in the
ground and covered it with a plate he then asked the woman to fetch
ashes to mix with his medicines, and while she was away, he removed the
money.
 Upon her return, the appellant mixed the ashes and medicines in the plate
and told the woman that if she came back next morning, she would find
her money much increased. It was held that the appellant was rightly
convicted of cheating.
 NB. It has to be established that a person has by any fraudulent trick or
device obtained anything capable of being stolen from another person.
Cheating Cont’d

 Examples of cheating include presenting of false invoices to

the customers and obtain release of the goods on payment of
a lower amount of duty that was properly charged; or
fraudulent use of weighing machines.
 In Uganda v Ndyanabo [1974] EA 552 the accused was
convicted on his own plea of cheating by selling salt at more
than the controlled price. No fraudulent trick or device was
alleged and the accused said that the mistake was his son’s.
It was held that the offence of cheating under section 307 of
the Penal Code was not disclosed because the particulars as
stated did not in any way suggest that the accused employed
any fraudulent trick or device
 The Distinction between Obtaining Money by False
Pretence and Cheating

 The distinction between the offence of obtaining money by false

pretence and cheating is very thin.
 However, it is very important since charging a person with a
wrong offence may lead to an acquittal and there is no absolute
guarantee that the powers of court to substitute a charge in
favour of one proved by evidence will be exercised in favour of the
prosecution.
 The distinction between these two offences has been considered
in the case of Blasius v R. [1973] EA 510. In this case, the appellant
was convicted of cheating. The prosecution alleged that he had
falsely represented to two persons that he had fish to sell.
Distinction cont’d

 Mohamed Selemani Mzaramo v R (1969), H.C.D. 127 where the

accused sold a tin of sand to the complainant with the pretence that it was sugar.
A layer of sugar had been spread on the top of the tin. It was held that the facts
disclosed the offence of cheating.
 John Joseph v R (1969), H.C.D 171where the appellant had constructed for
himself a sealed tin containing turbid water. He then got a witness N at a bus stand
and explained that he was in difficulty. He asked this witness to advance Shs. 30/-
in return for which the appellant will deposit his tin containing ground nut oil
valued at 60
 It appeared as if the tin had a few drops of ground nut oil on the top. N agreed to
help the appellant as requested. The appellant was shortly arrested by a
policeman who had been watching the proceedings. The tin was found to contain
only water. It was noted that ‘…..cheating is perpetuated by a trick or device while
obtaining by false pretences depends on a false statement of an existing fact. But
considering that such false statement may be made by act or conduct, the
distinction may be very fine if not non-existent.’
Summary


a)Where a person obtains anything by a
false representation with or without a
trick or device, it is obtaining by false
pretences.
 b) Where a person obtains anything
solely by trick or device (although it is
rare), it is cheating.

Obtaining credit by false pretence

Under Section 305 it is an offence for any person incurring any debt or
liability to obtain credit by false pretence. The prosecution must prove
 1) the incurring of a debt or liability
 2) the obtaining of credit
 3) the false pretence
 4) Intent to defraud.
 In Rajani v R, [1958] EA 646 the appellant who resided in Mwanza
ordered some bicycle parts from a company at Kampala.
Obtaining credit by false pretence
cont’d
 Before the goods were dispatched, the appellant agreed to pay the
company by two promissory notes payable after sixty and ninety days
respectively. The goods were dispatched to the appellant with two
promissory notes for his signature, which he did not return. The appellant
later gave another set of promissory notes to the company which were
dishonoured.
 The appellant was charged and convicted of obtaining credit by fraud. In
his judgment, the magistrate found that at the time of ordering for the
goods, the appellant had no intention of subsequently paying for them.
 On appeal, it was argued that mere intention not to pay does not amount
to obtaining credit by fraud. It was held that when the appellant
accepted the credit terms offered by the Kampala company for the goods
he had ordered, having no intention of paying for them and concealing
that intention, he had obtained credit by fraud
Receiving or retaining stolen
property
 Under section 314 of the Penal Code Act, it is provided any person who receives
or retains any chattel, money, valuable security or other property, knowing or
having reason to believe the same to have been feloniously stolen, taken,
extorted, obtained or disposed of, commits a felony and is liable to
imprisonment for fourteen years.
Ingredients
1. Possession
 A person commits an offence of receiving stolen property if to his or her
knowledge that the property had been stolen and he receives it with a guilty
knowledge. In order to prove receiving, it is sufficient to show that the accused
person has either alone or jointly with some other person had the thing in his
possession or has aided in concealing it of disposing of it. Even mere assisting in
disposing of the thing without having control over it is receiving. i.e. the
prosecution must prove that the accused had knowledge that the property was
stolen and he receives it.
Receiving or retaining stolen
property
 Section 2 (v) provides a very wide definition of the word possession. It
includes not only having in one’s own personal possession, but also
having anything in the actual possession or custody of any other
person, or having anything in any place (whether belonging to or
occupied by oneself or not) for the use or benefit of oneself or of any
other person. Further, under this section, if there are two or more
persons and any one or more of them with the knowledge and
consent of the rest has or have anything in his or her or their custody
or possession, it is deemed and taken to be in the custody and
possession of each and all of them
Receiving or retaining stolen
property cont’d
 In the case of Kara v R 1971] EA 191 that this broad definition does not
apply to the offence of stolen property. In this case, the appellant was charged
with receiving a tape recorder knowing it to have been stolen. The appellant
when shown the parcel containing the tape recorder admitted that someone
had left it there. He did not admit knowing that it contained a tape recorder.
 Possession, in the context of this offence seems to be physical possession. In
the case of Kateba v R, 1967] EA 215 the appellant offered to sell a radio in
circumstances which apparently made one of the persons present, Hamisi,
suspicious. Hamisi offered to buy the radio and took it away. Subsequently,
Hamisi sought out the appellant and took him to his house where he collected
the radio and then took it and the appellant to the police station, where the
appellant was arrested and charged with possession of property suspected of
having been stolen. He was convicted and appealed. It was held that the
appellant having parted with possession of the radio when it was taken from
him by Hamisi was not ‘in possession’ of it when arrested
Possession cont’d

 Mere manual possession of a stolen article without having control over it

does not amount to possession of it. Possession may be sole or joint
possession. In Said Kigozi v R, [1958] EA 1. the appellant was convicted by a
magistrate of receiving a bicycle knowing it to have been stolen. Evidence
was led to show that the bicycle had been taken to the appellant for repairs
and had been found in the appellant’s house in a dismantled condition.
Further evidence showed that the appellant had removed the small part
which bears the number. The magistrate drew an inference of a guilty
knowledge from the manner in which the appellant dealt with the bicycle. It
was argued on appeal that the appellant did not have possession of the
bicycle of the nature that must be proved to establish a charge of
receiving. It was held that although mere manual possession of a stolen
article without having control of it does not amount to possession in law, in
this case evidence showed that the appellant had at least joint possession
and had at least joint control over the article.
Possession cont’d

 Circumstantial evidence that property must have been stolen can be

sufficient. For example, if a person takes a brand new car to the
garage, he repaints it from blue to white or someone hides it. In Idi
s/o Waziri v. R, the accused was found in his possession of some
property but there was no evidence to prove conclusively that the
property had been stolen. However, the circumstances under which
he received the goods showed that the goods were stolen.
 In this case, he had a bag of coffee in a maize field. He attempted to
sell it below the true value of the coffee and he tried to sell it secretly.
When questioned about the coffee, he denied it. The court observed
that on a charge of theft or receiving stolen, there need not be direct
evidence that the goods were stolen goods.
Possession cont’d

2. Property received
It must be proved that the property received had been previously stolen or
obtained by means of an act constituting a felony or misdemeanor. It is not
sufficient to show that the goods had previously been stolen. They must continue
to be stolen goods at the time when the accused person received them. In David
Kasule v Uganda 1966] EA 338. the appellant was convicted of receiving stolen
property. There was evidence that about sixteen car armatures were missing from
the store of a car company and that the appellant attempted to sell an armature
to a police officer when the police officer visited his shop in the course of
investigations. The appellant tried to run away when the police officer disclosed
his identity and volunteered the information that the armature was a gift from one
S. which was denied by S. The magistrate stated in his judgment that it had not
been proved that the armature was one of the armatures stolen from the store nor
could the company’s manager positively identify it. [
Possession cont’d

3. Guilty Knowledge
 It must be shown that the accused at the time of receiving the
goods knew they were stolen or obtained by means
constituting a felony or misdemeanor. Guilty knowledge may
be proved by direct or circumstantial evidence or confession.
 What is required of the accused is to give a reasonable
explanation of how he came into contact with the property in
question. He does not need to prove affirmatively that the
property in question actually belongs to him or her
The Doctrine of Recent Possession

 This is a way of referring to the inference of fact which in the

absence of satisfactory explanation by the accused may be shown
as a matter of common sense from the fact that he was in
possession of the goods recently stolen. The burden of proof shifts
to the accused.
 The general principles in relation to the doctrine are: the court may
presume the person in possession of the goods soon after their theft
is either a thief or has received the goods knowing that they are
stolen unless he can account for his possession.
 NB where it is difficult for the prosecution to prove theft, the charge
should be framed in the alternative, first of theft then of receiving
because a person cannot be convicted of both theft and receiving
stolen property. He may be convicted of either of them.
The Doctrine of Recent Possession
Cont’d
 In Mbazira Siragi & Baguma Henry, Supreme Court
Criminal Appeal No.7 of 2004 the Supreme Court stated
that: ‘The doctrine of recent possession of stolen
goods is an application of the ordinary rule relating
to circumstantial evidence. The fact that a person is
in possession of goods soon after they are stolen
raises a presumption of fact that that person was
the thief or that that person received the goods
knowing them to be stolen, unless there is a
credible explanation of innocent possession.
The Doctrine of Recent Possession
Cont’d
 .It follows that the doctrine is applicable only where
the inculpatory facts, namely the possession of the
stolen goods, is incompatible with innocence and
incapable of explanation upon any other reasonable
hypothesis than that of guilt. The court must also be
sure that there are no other co-existing
circumstances that weaken or destroy the inference
of guilt.
The Doctrine of Recent Possession

Conversion of stolen property

 A steals a sum of money and offers it to B who
knowingly receives it. B is guilty of receiving stolen
property. In D’Andrea v. Woods (1953) 1 WLR
1307, two girls stole savings stamps and converted
them into cash, part of which they handed to the
accused who admitted that when he received the
money, he knew it was part of the proceeds of
stolen stamps. He was convicted of receiving money
knowing it to be stolen.