Inferior Court
Appeal No. 1 of 1979
21st March, 1980.
Moe, J.

Mr. E. Flowers for the Appellant
Mr. G. Gandhi for the Respondent

Criminal law - Appeal from inferior court against conviction - Ground of appeal the decision cannot be supported having regard to the evidence - Fraudulent Embezzlement contrary to section 156(b) of Cap. 21 - What constitute Fraudulent Embezzlement - Need to prove dishonest Misapplication by Prosecution at the very least.

JUDGMENT

The Appellant was charged for that he between the 1st and 8th days of August 1977 at Corozal Town in the Corozal Judicial District, fraudulently embezzled the sum of sixty-nine dollars and twenty three cents ($69.23), the property of the Government of Belize contrary to section 156(b), Cap. 21. He was found guilty of the offence and against that conviction he appeals on the ground that the decision cannot be supported having regard to the evidence.

The evidence for the Prosecution showed that the Defendant was employed by the Government of Belize as the District Postal Clerk in charge of the Corozal Post Office. Amongst other things he was in charge of selling stamps to the public for which purpose he had a stamp imprest fixed at $300.00 which meant that he would replenish whenever necessary by purchasing with monies from the sale of these stamps from stock held by the District Officer. The Defendant was required to balance his stamp imprest at the close of each day so that the position of his imprest may be known daily. On the 8th August, 1977 at about 3:45 p.m. a check was carried out by the Chief Clerk in the presence of the Defendant on the position of his stamp imprest. The check revealed a total between stamps and cash of $230.77, thus a shortage of $69.23. When the Chief Clerk drew the Defendant's attention to the shortage he said he knew he was short, would make it good the following morning and asked the Chief Clerk not to mention the shortage to the District Officer. Sometime after 4:00 p.m. that day when the shortage was disclosed to the District Officer, the accused told him he did not know how he was short.

It was contended for the Appellant that the evidence does not support a finding that the Appellant fraudulently misapplied the whole or any part of the sum of $69.23. This would mean that the Prosecution had failed to establish one of the ingredients of the offence.

Section 178(3) of Cap. 21, which it will be useful to set out in full, provides as follows:

" (3) A person fraudulently embezzles any thing, if he, -

(a) being a clerk or servant or person employed in the capacity of a clerk or servant fraudulently converts, applies or otherwise disposes of for any purpose whatsoever other than that of his master or employer any thing delivered to or received or taken into possession by him for or in the name or on the account of his master or employer; or

(b) being employed in the public service of Her Majesty in any manner fraudulently converts, applies or otherwise disposes of for any purpose whatsoever except for the public service any thing entrusted to or taken or received into possession by him by virtue of his employment."

The Prosecution must therefore produce evidence at least sufficient to raise a presumption of dishonest misapplication by the Defendant of the object.

In this case, there was a failure to tally on the 8th August, 1977 which it is true may be due to more than one thing including negligence or forgetfulness. The Defendant did not deny the shortage but said he did not know how he was short. It was submitted on behalf of the Appellant that according to the magistrate's reasons, he relied on the admission by the Appellant that there was a shortage and his offer to repay as going towards establishing guilt, whereas admission that there is a shortage does not show fraudulent misapplication. Further, the magistrate did not appear to take into account the Appellant's evidence that he was overburdened and more than one person was involved in the sale of stamps. However, the Prosecution as part of its case led evidence which showed that the Defendant, on the said day, also failed to account for $724.47 which was missing from the money he had received for Money Orders which he had sold. This evidence of a similar act tended directly to prove that the failure to tally stamps and money on the 8th August, l977 was not due merely to carelessness, but rather to the intention of the Defendant to misapply the amount involved.

In my view, the magistrate had before him sufficient evidence on the basis of which he could properly find that the Defendant fraudulently embezzled the sum of $69.23. The appeal is therefore dismissed.

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