|court type:||By MOHAMED MAHMOUD ABU GISSEISA*|
HE OFFENCE OF GIVING AN UNCOVEREDCHEQUE IN PRACTICE
By MOHAMED MAHMOUD ABU GISSEISA*
This is a new offence in 1969 1 and added to the Penal Code as Section 362(B), after the offence of cheating 2• It was thought necessary to make this addition to the Penal Code as the number of uncovered cheques was proceeding towards• the red light and most cases were not caught by the offence of cheating : s requires proof of intent to receive which proof in difficult if not impossible for prosecutors in many cases. A cheque being a promissory Note was, generally speaking. remediable in the Civil Courts alone. There was then the need to invite the Criminal Law so that people should learn to be meticulous in thawing cheques Section 362(B) reads —
“Whoever gives to any person a cheque which is dishonored by the drawee
a.) he has no account with the drawee at the time the cheque is presented for payment; or
b) he has insufficient funds with the drawee; or
c) he has countermanded the payment for the cheque; and without a reason able cause; or
d) his credit, to his knowledge, is not available for payment; or
e) he intentionally draws the cheque in such an irregular manner that the drawee to refuses to honour it; shall be punished with imprisonment for a term may extend to seven years or with fine o with both”.
The offence was held to be one of absolute responsibility and no question of means read arises 4 where the conviction is under Para. (b).
The offences is made cognizable only on complaint by a new section in the Code of Criminal Procedure, viz Sec 134(A)5. The explanatory note to this new section of the Code of Criminal Procedure says 6
“To exonerate the officia1 and agents of drawee from criminal responsibility for not initiating criminal proceedings under the new section, it was found appropriate to’ add a new section after Section 134 of the Code of Criminal Procedure to limit the intention of such proceedings to the aggrieved person”.
This is sound logic and is. in accordance with principle. But what ought to have followed after this, which did not follow, has given rise to the first problem before the course: the offence was not made compoundable.
Nothing in principle should prevent being made compoundable. The explanatory note referred to above s to recognize that the interest to be protected is individual as distinguished from public interest.
Moreover, there are instances in the law where even when public interest is involved, there is power to compound, and a ready example for that is the power given to the Director of Customs to compound offences under the Custom” Ordinance7
Moreover, it would be harsh on a person where through unforeseeable conditions in the. market he is unable to meet a cheque when it falls due but is ready to furnish funds in a short while, to be brought to trial even though the complainant is ready to compound. It seems natural that an offence which is made cognizable only on complaint should be compoundable by the complainant. Indeed this seems to be the spirit of the Code of Criminal Procedure in this respect, for there appears to be no offence which is cognizable only on complaint (marriage offences apart), that is not compoundable 8• Such offences are not many and they are listed in Sections 1 3 and 134 of the Code of Criminal Procedure 9.
Now we come to look at the matter from the point of view of the Criminal Courts. Cheque litigation was mainly an area for the Civil Court. With the new enactment there was a shift to the Criminal Court. In the period between July. first, 19.71, to October 25, .1971 there are 105 cases under Section 362 (B) of the Penal Code in Khartoum West Police Station 10
No attempt was made to arrive at the statistics of Khartoum East Police Station 11•
This shows there is a good deal of case . load newly added to the Criminal Court. How does this effect the litigant and the Court.
It does this in two ways: speed and waste of manpower and material:
If there are 105 cases before the Police Magistrate in four months, then he will have to see over three hundred cases a year from one Police station. And there are actually two Police Station, which shows that the number of cases is great. A cheque case should be speedily tried or the law would serve no useful purpose. If many cases are compounded at the request of the complainant where he is paid, room is left in the magistrate’s diary for the cases that remain for trial and he can have the chance to try them speedily.
WASTE OF MANPOWER AND MATERIAL:
That the offence is not compoundable does not mean that the case will be tried. The case is given a date and comes in on the day’s list. The complainant is often advised by his lawyers not to turn up on the date fixed for the trial. Because of his absence the accused is discharged 12 by the Court. The complainant has succeeded; he does not want a trial and flow there is no trial. But the Court has lost time in which it could try another case. Not only that, but the Court has issued the summons, and has served the summons and done every thing in preparation for the trial, which effort should have been useful had the case been compoundable from the start and another case tried in its stead. To turn to statistics again, we find that in sixty seven cases the accused was discharged under Section 154 of the Code of Criminal Procedure and the cases filed.
For these reasons it is suggested that a new addition be made to Section 286 of the Code of Criminal’ Proced4re so that the offence becomes compound able. Jam now under the impression that the omission was by oversight, for, having read the explanatory note ref to above, I found nothing to suggest that offence should not be compounded Such a slip can happen and has happened before when Section 316 (A of the Penal Code was added. Through oversight, the. Court with least power try that offence was not shown in Schedule (1) of the Criminal Procedure. This was done 13 This is about the first problem.
The second problem is about the jurisdiction of the Court. An offence under Section 362 (B) is tribal by a first Class Magistrate 14 The powers of a first Class Magistrate are imprisonment for up to two years and fine up to two hundred pounds only 1 Where cheque is for more than two hundred pounds the magistrate usually commits the accused for trial by a Major Court which is the only Court which at present has greater powers under the Code of Criminal Procedure 16 The law is not different, the ingredients of the offence and the arguments for and against the accused are the same whether the value of the cheque is under or over two hundred pounds. The question is that of the punishment. But a trial by Major Court causes delay, for the committing Magistrate hears the evidence and sends the case to the Province Judge who sends the case back together with a convening order and the case will he heard afresh by the Major Court. In cheque cases there is not much evidence to be sorted out by the committing magistrate as would happen in e.g. fights, and criminal breaches of trust And the delay can be extremely harmful One of its effects is to encourage persons not to be careful with their cheques, a matter which defeats the purpose of the new legislation. Indeed some Government
Commercial Institutions have suffered from this and there was recently an outcry in the local press 17, A solution seems to be an ad. hoc, increase in the jurisdiction of First Class Magistrate in fines only. Where the Magistrate thinks the punishment should be imprisonment for more than two years, he can in the normal way commit the accused for trial by Major Court.
This suggestion is by no means novel and we have seen it in the Customs Ordinance where a specially appointed First Class Magistrate can sit as a Court of unlimited jurisdiction 18,
In SUDAN GOVERNMENT v. ABDEL GADIR ABDALLA ALI19 ‘ was convicted under Section 362(B) (b) for “he had insufficient funds with the drawee”. The Honourable Osman El Tayeb, C.J., said:
“This section which was r enacted imposes an absolute criminal responsibility on drawers of cheques fixed on the date of payment. No question of mens rea should arise” 20
Probably this applies also to sub-section (a) where an accused “has account with the drawee at the time the cheque is presented for payment”. No reference to intent or knowledge appears iii these two sub-sections. The same is not true with the other three sub-sections,
Sub-section (c) applies when the accused:
“has countermanded the payment of the cheque; and without a reasonable case”.
Sub-section (d) when:
“this credit, to his knowledge, is not available for payment”.
Sub-section (e) when he:
“intentionally draws the cheque in such an irregular manner that the drawee refuses to honour it”.
The words italicized suggest that means rea is not excluded in these three sub-sections 21 unlike sub-sections (a) and (b).
The problem of means rea and strict’ responsibility has given rise to long if fruitful discussions in Englan4l and elsewhere recently. Glanville Williams notices “There is a half-way house between means rea and strict liability which has not, yet been properly utilised and that is responsibility for negligence 22,
Glanville Williams seems to suggest a wider use of negligence instead of absolute responsibility. 23
Professor Howard 24 makes the same observation between the two extremes. Either there is means rea which the prosecution has to prove, or there is absolute responsibility and the prosecution is to prove the actus reus only, “the question has become too black and white with insufficient allowance for the shades of grey which lie between these extremes”. He refers to the solution found by the High Court of Australia, where an offence does not require full means Tea, it is nevertheless normally a good defence to a defendant to prove that he acted under a reasonable mistake of fact 25 The proposition then, is that in cases of absolute liability, the prosecution proves the actus reus alone and then the Burdon is shifted to the accused to prove reasonable mistake of fact. This vi imported from Australia, seems to gain ground in England.
The question has arisen recently, though obiter, in the House of Lords in SWEET v. Sparsely 26• The decision in that case appears to be that the offence in question is not of absolute liability. But Pearce L.J.27 and also Diplock L.J.28 were prepared to recognize the def of reasonable mistake of fact, the. burden of proving it resting on the accused on a balance of probabilities in . strict liability cases. Pearce L.J. concludes: .
“When a statutory prohibition is cast in terms which as first sight appear to impose strict responsibility, they should be understood merely as imposing responsibility for negligence but emphasizing that the burden of rebutting negligence by affirmative proof of reasonable mistake rests upon the defendant”.
This is sound logic. And if it is a new development in England, it is submitted it is not new in the Sudan, as the Sudan recognizes, though to a rather limited extent, the defence of mistake of fact 20 Professor Howard (in the reference above) distinguishes the Common Law defence of mistake of fact from the defence of reasonable mistake of fact in statutory offences.
Whatever be the situation elsewhere, our Criminal Law is not Common Law, for we have a Code fixing the general conditions of liability. Whatever we say about other statutory offences, Section 362 (b) is part of the Penal Code to which the defence in the Penal Code apply. When a section of the Penal Code imposes absolute liability, it does not deny a defence under the Code, it only relieves the prosecution from proof mans rea (which would otherwise be a heavy burden on them), and the accused proves his defence. In SUDAN GOVERNMENT V. ABDEL GADIR ABDALLA ALl, accused’s defence was good faith and that he was hoping to secure sufficient funds to meet the cheque on the day of payment. In other words he was pleading absence of mens Tea. On that the Justice,
rightly, said this is a case of absolute liability and no question of mens rea should arise.
This does not mean that no defence will be accepted from the accused. One can imagine circumstances when an accused person can raise this defence. Suppose an accused receives as a bank statement saying in error that he has a certain sum of money, which sum is excess of the actual sum at his bank. Suppose in absence of cheating he draws a cheque which is later unmet. It would seem unjust to punish such person for the fault of another person.
To this defence of reasonable mistake of fact, Howard says, there appears to he an exception., and that is where the offences charged exists only to “protect a civil right by or drastic means of enforcement” 30 Section 362 (b) says nothing about civil rights, which are protected by the Civil Law. The high punishment (up to seven years) seems to suggest that the object is deference, and therefore, the protection, of ‘the civil rights would be incidental..
There are cases where the accused disputed his liability to pay under the cheques. This has nothing to do ‘ with the defence of mistake, for the issue of The cheque is an offence of absolute responsibility. These are civil defences, e.g. contractual defences to be raised by civil action. An example is SUDAN GOVERNMENT v. ATTA EL ZUBEIR M20 Which will be dealt with separately.
The attitude of the courts towards punishment differed at first. This is not surprising where there is a new legislation, but the courts seem to be approaching more or less near uniform principles, the offence being now more than two years old with frequent appeals to higher courts.’ The cases may be grouped into three groups:—
1. Cases where the accused has made restitution.
2. Cases where the accused has not made restitution.
3 Cases where the accused disputed his liability to pay under the cheque
1. WHERE THEACCUSED HAS MADE RESTITUTION
Here the principle has been that restitution is a good ground for mitigation 31 This hardly needs any comment for cheque cases are for money and that is what the complainant s interested in. In SUDAN GOVERNMENT v YALLS FAHIM SAEED32 the cheque was for LS. 315.000 m/ms. The accused paid that sum. He was released on probation of good conduct for one year. In SUDAN GOVERNMENT v. CAMEEL GEORGE and ANOTHER 33. the two accused paid the value of the cheque. Each of them was fined twenty pounds. In this group of cases there are usually two grounds for mitigation. When the complainant receives his money he usually applies to the Court to withdraw the case. But the case is not compoundable. This application is also considered a ground for mitigation.
2. WHERE THE ACCUSED HAS NOT MADE RESTITUTION:
Here the Court compels the accused to make restitution. The Courts have taken different courses towards that end. In SUDAN GOVERNMENT v. BESHIR BEREIR MOHAMED 34, Salah Eddin Shibeikt, J., by authority of the Chief Justice, confirmed a sentence of payment of fine, and imprisonment in default of fine, and order to pay part of the fine as compensation He gave the accused a space of four months to pay the fine.
In SUDAN GOVERNMENT v. AEDEL GADER ABDALLA ALl (supra) the cheque was for LS. 789.000 m/ms. and the accused was sentence by Major Court to imprisonment for three years and fine for the value of the cheques, and in default of fine to imprisonment for year. It was further ordered that the fine be levied by sezure and sale of accused’s property so that it might be paid to the holder of the cheque. Commenting on the sentence the Chief Justice said:
“I think it is too high. Accused being a first offender it would be adequate punshment to give him three months imprisonment together with a fine and the other orders”.
There is also SUDAN GOVERNMENT v. EL AMIN AHMED EL SHAFIE 35. In that case the cheque was for LS. 1150.000 m/ms. A Major Court sentenced the accused to three months imprisonment and to LS. 1150.000 m/ms. fine or imprisonrnent for two years and ordered the fine if paid to be given to the complainant in compensation.
Attig, J., by authority of the Chief Justice, reduced the term imprisonment to three weeks and reduced the fine to LS. 30.000 rn/ms. and ordred the value of the cheque to be paid by the accused to the complainant as compensation under Section 77 (b) of the Penal Code.
In SUDAN GOVERNMENT v. SULEIMAN ABDALLA MAHGOUB36 the cheque was for LS. 315.000 rn/ms. accused to be paid therefrom.
The cases above seem to warrant the following conclusions in this group.
(i) The Court gives its punishment for the contravention.
(ii) The Court also compels restitution. This can be either by ordering a fine out of which compensation is to be paid 37, with a deterrent term of imprisonment in default of fine, or with an order to seize and sell the property of the accused 38, in appropriate cases.
iii) In SUDAN GOVENMENT v. FAROUK MOHA MED AHMED, the Chief Justice directed the payment of compensation under Section 77(b) of the Penal Code. In that case the cheque was for 25 pounds, and the Trial Court had ordered 30 pounds fine, from which 25 was to be paid to complainant. But accused stayed 21 days in prison, which meant he was not able to pay the fine. It is only wise in such circumstances to order compensation under Section 77 (b), as Chief Justice directed. Such order can be to a Civil Court for execution 40
To treat such a person as in point (ii) above will be harsh upon him, and the value of the cheque will remain unpaid. But for those who can pay, though reluctantly, compensation out of fine appears more appropriate. Execution in Civil Court takes longer time than payment under threat of imprisonment. Longer time may be seriously derimental to the complainant. The decision of the Chief Justice here does not seem to extend to these cases. The Court is left with these alternatives to apply in different circumstances, and not to use one and neglect the others. The decision of the Chief Justice in SUDAN GOVERN MENT v. FAROUK MOHAMED AHMED39, therefore, does not conflict with his decision in SUDAN GOVERNMENT v. ABDEL CIDER ABDALLA ALI19.
3. WHERE THE ACCUSED DISPUTED HIS LIABILITY TO PAY UNDER THE CHEQUE:
In SUDAN GOVERNMENT v. FAROUK MOHAMED AHMED the Chief Justice urges Courts to see that restitution is made in cheque cases. The reason for that, he says, is that in most cases the complainant omits to protest the cheque in the Civil Court and therefore, loses his right under the cheque. The Criminal Court has to order compensation especially when it is clear to it that the complainant will be successful in a civil suit. In that case, as we have seen, the Chief Justice ordered compensation under Section 77 (b) of the Penal Code.
In SUDAN GOVERNMENT v. ATTA EL ZUBEIR MUKHTAR the cheque was for around 231 pounds. Accused was sentenced to 250 pounds fine or imprisonment for six months in default of fine. The Court ordered that value of the cheque to be paid as compensation out of the fine. Attig, J., by authority of the Chief Justice, thought otherwise. He reduced the fine to thirty pounds and annulled the compensation order. Apparently the 30 pounds fine
is for the contravention only, for he says that the offence is a strict responsibility offence. He gives various reasons for annulling the compensation order. His most important reason seems to be that by ordering restitution, a Criminal Court denies the accused any defence open to him the Civil Courts. If we bear in mind that Section 311 (b) of the Code of Criminal Procedure enables a Criminal Court to award compensation “where substantial compensation is in the opinion of the Court recoverable by civil suit” we feel we must agree with Attig, J. If the accused denies his liability to pay under the cheque, and there is something to support that in the opinion of the Court, why does the Criminal Court deny the accused his civil defence. This does not mean that the Criminal Court will make itself a Civil Court to examine all civil defenses. A Judge in a Criminal case is a lawyer and weighs things. He is not expected to refuse compensation whenever an accused says: I contest liability. In fact SUDAN GOVERNMENT v. FAROUK MOHAMED AHMED 39 quoted above, the accused did deny his 1 ability to pay under the cheque. But the Trial Court found that the cheque was given in of a debt and ordered compensation. Nevertheless, the Province Judge in revision cancelled the order for compensation. The Chief Justice restored the order to pay compensation 42 .That seems absolutely right. The accused denied liability, but the Trial Court found there is a debt and naturally “compensation is in the opinion of the Court recoverable by civil suit”. The order for restitution is therefore correct in SUDAN GOVERNMENT v. FAROUK MOHAMED 39, and does not conflict with the decision in SUDAN GOVERNMENT v. EL ATTA EL ZUBEIR MUKHTAR41: it would be strange if we say an accused person has to pay the value of the cheque if there is e.g. fraud which is a valid civil defence. SUDAN GO VERNMENT v. FAROUK MOHAMED AHMED 93 should not be made to say what it did not actually say. If the Court thinks there h a civil defence, then following SUDAN GOVERNMENT v. EL ATTA EL ZUBEIR MUKHTAR41, it should not order restitution and should only punish accused for the contravention if on the other hand, it considers that compensation is recoverable by a civil suit, then following SUDAN GOVERNMENT v. FAROUK MOHAMED AHMED 39, it is bound to order restitution.
* LL.B. (Khartoum), LL.M. (London) of the Judiciary.
1. (1969 Act No. 33).
2. Cheating is defined by Section 357 of the Penal Code and punishable by Sections 359, 360 and 362.
3. Section 357 reads:
“Whoever by deceiving any person (a) fraudulently or dishonestly induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to cheat.
Explanation — A dishonest concealment of facts is deception within the meaning of this section.
4. Per the Honorable Osman El Tayeb, C.J., in Sudan Government v. Abdel Gadir Abddlla Au (1969) S.L.J.R. 157.
5. (1969 Act No. 32).
6. Ministry of Justice file number MJ/LEGIS/13—14 Vol. IV. lam grateful to Senior Legal Council Sayed Hussein Abu Sham for his kind permission to examine the file.
7. Section 213 of the Customs Ordinance.
8. Complaint is distinguished from the sanction to be given by public official in their official capacities. In these cases the word complaint appears as an alternative to the sanction — see Section 130 of the Code of Criminal Procedure.
9. They are cases of criminal breach of contract, defamation, adultery and enticing a married woman.
10. 1 am indebted to Chief Inspector of Police Sayed Badr El Din Abu Raffas for preparing a detailed list of statistics.
11. Both Khartoum East and Khartoum West are within the jurisdiction of Central Khartoum Police Magistracy. There is another Police Magistracy at Khartoum South and a separate Police Station there. These statistics are on Central Khartoum Police Magistracy alone.
12. By Section 154 of the Code of Criminal Procedure. The section applies only when the proceedings are instituted upon complaint, which fits very well with offences under Section 362 B.
13. MJ/LEGIS/13—14, Vol. IV.
14. 1969 Act No. 32.
15. Section 18 of the Code of Criminal Procedure.
16. Section 16 of Criminal Procedure. It can pass any sentence authorised by law. Minor Courts have been abolished.
17. El Sahafa newspaper, November, II, 1971, Page 8.
18. Section 216 (2) of the Customs Ordinance. Such Magistrate is nominated by the Chief Justice.
19. (1969) S.L.J.R. 157.
20. See also Sayed Attig, J., by authority of the Chief Justice, in Sudan Government v. El Atta El Zubeir Mukhtar — AC/MC/19/71.
21. See Morris and Howard, Studies in Criminal Law.
22. Criminal Law, the General Part, 2nd. ed. p. 262.
23. op. cit. p. 261 et seq.
24. 76 L 547.
25. op. cit. p. 548.
26. (1969) I All E.R. 347.
27. (1969) I All E.R. 347 at p. 357.
28. (1969) I All E.R. 347 at p. 362.
2 Sections 44 and 47 of the Penal Code
30. 76 LQR p. 548.
31. See Thomas, Principles of Sentencing, for the practice In the English Court of Appeal.
32. MC/1/71 Khartoum Central.
33. MC/40/70 Khartoum Central.
36. N.S. 1050/71 Khartoum Central.
37. Under Section 311 of the Code of Criminal Procedure.
38. Under Section 267 of the Code of Criminal Procedure.
39. AC—CP—545——71 (1970) S.L.J.R.
40. Section 77 B (3) of the Penal Code.
41. AC—.CP—---114--—71 (1970) S.L.J.R.
42. But under Section 77 B of the Penal Code instead of Section 311 of the Code of Criminal Procedure.