THE HIGH COURT OF MALAWI
APPEAL CASE NO. 30 OF 2008
the Principal Resident Magistrate Court sitting at Lilongwe. Being
Criminal case no. 19 of 2008.
Banda, Counsel for Respondent
Mbewe, Court Reporter
appellants: George Betha and Stonard Kamwimbi, and another convict
Evance Mtindo appeared before the Principal Resident
Court sitting at Lilongwe from 28th
January to 5th
February, 2008. It was on a charge containing 3 counts:
Count: Conspiracy to commit a felony contrary to section 405 of the
count: Forgery contrary to section 357 of the penal code.
count: Uttering a false document contrary to section 360 of the
They all pleaded
not guilty. After full trial they were found guilty, convicted and
sentenced as follows:
appellants were each sentenced to 6, 36, and 12 months I.H.L. on 1st,
counts respectively. The 3rd
convict Evance Mtindo was sentenced to 480 hours community service.
The two appellants
have presented a petition of appeal against conviction and sentence.
appellants grounds of appeal are as follows:
I was denied
justice from the word go it took the police 4 days to take my
statement and ten days to take me to the court of law.
My boss Mr
Patel was in the court to tender his evidence on the case I was
charged (the one brought in court had no idea whatsoever
on the said
deposit slips. The one that had been accepting them was not present
I was denied
bail and also to be represented by a prominent legal practitioner.
I was working
for Deekay Suppliers as a truck driver and not a debtor collector;
hence I had no idea of how the banking matter
go by. If there was
any mistake concerning the said deposit slips it could have been my
bosses responsibility. But that never
happened I am surprised.
On the list of
the purported Deekay Welfare Fund my name was not there. Had
it been that I am one (of) the beneficiaries
would not my name be
These are the
grounds of appeal for the 2nd
I am surprised
to learn that I am charged with a forgery case. (All I know is that
Mr Dyson whom the police refused to apprehend
coaxed me to withdraw
the money at NBS Bank using my driving licence a thing I did). A
thing I never did.
complainant Deeekay Suppliers denied me in court.
When I asked
the NBS personnel represented in court to clarify my involvement in
this case, he failed to answer my questions.
All he said was that
the document used when opening the said account was fake. How could
a prominent bank like NBS accept fake
documents in the first place,
if that really happened.
I was denied
justice in this case (it took 4 days for the police to get my
statement and ten days to appear before the court of
I was denied
bail and also a chance to be represented by a lawyer.
The way the
case was handled was somehow tricky there were a lot of adjournments
and within these times, I could see the magistrate,
the NBS and Deekay personnel smiling at each other.
Before I proceed,
I remind myself that I did not have the advantage, which the lower
court had, of assessing the demeanour of witnesses.
remind myself to bear in mind the provisions of section 5(1) of the
Criminal Procedure & Evidence Code.
Facts show that
the complainant Deekay Suppliers runs a business in Lilongwe. Mr
Patel (Pw1) testified on behalf of the complainant.
It is not in his
testimony whether he is the appropriator or an employee.
Pw1 said that the
appellant was employed as a driver. He was also being detailed to
deposit cheques issued by customers of complaint to the National
Bank. The complainant has a bank account with this bank.
Whenever Pw1 sent
appellant to deposit cheques, the 1st
appellant used to bring back deposit slips stamped Teller No. 8 of
National Bank- city centre. Later he received enquiry from
Building Society Bank (NBS) about the Deekay Suppliers Staff Welfare
Fund account. He testified that the complainant did not
Deekay Suppliers Staff Welfare Fund. Pw1 said that he was not aware
about that fund. He also noted cheques which had an
NBS stamp. He
said that the complainant lost over K900,000 through this dubious
Pw2 Mr Mlombwa a
manager at NBS city centre branch testified said that the 2nd
appellant and 2 others opened an account in the name of Deekay
Suppliers Staff Welfare Fund at his bank. On 21st
January, 2008 the 2nd
appellant wanted to withdraw K130,000. When Pw2 checked the account
he observed that K280,000 was already withdrawn from it.
further payments on this account because he was suspicious with
transactions. He wanted to verify with NBS old town.
Pw3 Mr Lipenga
said that he is an NBS teller. He said that he called Mr Kanthiti to
collect a cheque which had become stale.
It was 3rd
convict who came on behalf of Kanthiti to collect the cheque. The
convict was arrested at the bank.
Pw4 S Mwanza
of National Bank city centre testified that there was no counter
Teller No. 8 at their bank. He also said that
no cheques of the
complainant were deposited with their bank on 8, 10 and 17 January,
Chilondola was in charge of police investigation. He tendered in
evidence identity cards and drivers licence. The
licence belonged to 2nd
appellant. The identity cards belonged to persons who were not
employees of complainant. They were marked exp1. He tendered
cheques deposited at NBS which were marked exp2, withdraw slip for
K130,000 exp3, statements marked exp4, 5, and 6 for 1st,
appellants and 3rd
appellant said that he deposited cheques with National Bank at the
counter of teller no. 8. On another occasion he deposited cheques
the First Merchant Bank (FMB). The 1st
appellant denied to have deposited cheques at the NBS. He
categorically denied committing the offences.
appellant said that he worked for Kalaria as a truck driver. On 8th
January, 2008 he met Mr Dyson at a market. He helped him open a bank
account with NBS. He was given K5,000. Two weeks later
he was asked
to withdraw K280,000 which he did. He was given K5,000. After
another two weeks he was asked to withdraw K130,000.
This time he
was arrested at the bank. He denied committing the offences.
convict said that he was sent by one Kanthiti into the bank to meet
Mrs Maloya to collect a letter. He was arrested in the bank.
denied being involved in the crime. This was evidence before the
I will proceed to
deal with 1st
appellant. The 1st
appellant insisted that he deposited the cheques with National Bank
teller no. 8. Evidence of Pw3 S. Mwanza said that there was
counter of teller no. 8 at their bank. The trial court found as a
fact that 1st
appellant actually deposited the cheques with NBS, not National Bank.
I concur with that finding.
On the ground that
he was denied bail, legal representation and unjustly tried. It is
my view that it was upon the discretion of
the trial court to or not
grant bail. There is no basis to condemn it for having denied him
bail. As for legal representation there
is no record that 1st
appellant indicated to the court of this position. He has not
disclosed the name of the so called prominent lawyer.
I would like to
observe that if indeed there was truth of what the 1st
appellant complained of. His so called prominent lawyer was at
liberty to seek an order from the High Court to have access to
appellant). The said lawyer was also at liberty to represent 1st
appellant in this appeal. I dismiss this ground as baseless.
appellant admitted opening the account with NBS. He admitted
withdrawing money amounting to K280,000 from the account. He
that police failed to find Dyson. The trial found that it
was on 2nd
appellant to call Dyson not the State. I concur with this finding.
that the magistrate, prosecutor and witnesses showed conduct of
familiarity in the course of hearing. This allegation
is baseless as
it is meant to win the sympathy of this court. I dismiss it. The
convictions are upheld.
On sentences I
find that they are proper. I would not interfere. They are upheld.
In conclusion the appeal is dismissed in its
in Open Court on this 11th
day of June, 2008 at Lilongwe.