THE HIGH COURT OF MALAWI
APPEAL NO 68 OF 2002
the Second Grade Magistrate Court sitting at Mchinji. Being Criminal
Case no. 69 of 2002.
Miss Ntaba, Counsel for the
E.S. Mlenga, Court Interpreter
Mrs Namagonya, Court Reporter
J U D G
M E N T
The appellant ANDISEN SELEMAN
appeared before the Second Grade Magistrate Court at Mchemani,
Mchinji district. He was charged
with Forgery and Uttering contrary
to sections 357 and 360 of the penal code. He pleaded not guilty and
full hearing was conducted.
At the end of trial he was acquitted on
the forgery count but convicted on the uttering count. The lower
court sentenced him
to suffer 12 months I.H.L. The case was
concluded on 22nd October, 2002.
The brief facts of the case are
that appellant and the state witnesses are small scale traders at
Mkanda trading center in Mchinji.
The appellant is a sugar retailer
whereas pw1 and pw2 sell maize. On 19th September, 2002
appellant bought maize worth K5,200 from pw1. This money was in K2oo
About two days later appellant
bought more maize from pw2, but the amount is not disclosed. It was
suspected that K1,200 in K200
bank notes was fake money. It was fake
because there were no serial numbers. The matter was reported to
police which led to appellant
arrest by D/Sub/Inspector Qaba (Pw3).
Pw3 searched appellant he found money in his possession. Some bank
notes were genuine currency
other bank notes were fake currency.
Unfortunately pw3 did not state how much was genuine or fake
According to defence it is said
that that money was received from New Building Society in Lilongwe.
It was placed together with
acid which caused serial numbers to
disappear on the bank notes. The actual person who withdrew and
received money from the bank
was invading to testify.
The lower court acquitted appellant
on the 1st count of forgery. The lower court reasoned
that there was insufficient evidence that appellant was responsible
for forgery. The
lower court convicted him on the second count of
uttering because appellant was aware that there were defects on the
There is evidence from appellant that he once purchased
goods from an Indian who enquired only the bank notes had holes.
told him that acid had spilled on them. The Indian
accepted the money as legal tender.
I would concur with the lower court
that there was insufficient evidence to incriminate appellant on the
forgery count. The acquittal
was proper. However I am reluctant to
support the conviction on uttering false document. There is no
expert evidence to prove
that K1,200 were fake bank notes. It is my
view that police in the course of investigation would have consulted
a competent institution
for example the Reserve Bank of Malawi or any
commercial bank for expert opinion. To merely rely on the evidence
of police and
witnesses who have no expertise on money issues is
dangerous. That would be encouraging injustice to be perpetrated to
souls like the appellant.
Finally I find that there was
insufficient police investigation as well as lack of thorough of
facts by the lower court. This
being the position it is clear that
the evidence does not support the conviction. The conviction is
quashed and sentence of 12
months I.H.L. set aside. Appellant to be
released forthwith unless held on other lawful ground. Appeal
PRONOUNCED in Open Court on this
19th day of February, 2003 at Lilongwe.
J U D G E