false pretence

This is the making of a representation that a certain state of affairs exists, by either conduct or
spoken words which the maker knows to be false or does not believe to be true38.
The ingredients include;
(i) Subject matter, only things capable of being stolen39 can be
obtained by false pretence. Land and other intangible objects such as a job cannot be stolen
thus
not a subject to false pretence.
(ii) Obtaining, the accused must have obtained the object with
intent to defraud.
(iii) Pretence, a representation made by words, writing or conduct of a matter
of fact and which the person who makes it knows to be false or believes not to be true4
On the subject matter of a false pretence: -
(a)Things capable of being stolen (already covered in THEFT).
1. Abdulrahman Hussein Esmail v. R. (1965) E.A. 1
(b)The Right obtained – i.e. transfer of ownership – This is an important
element, which distinguishes a false pretence from theft, since in theft it is only possession,
which passes.
(c) The pretence: - words, writing or conduct; capable pretence must be
shown in the charge sheet.
d)A fraudulent intent in the pretence.
(e)Past or present fact: future representation excluded
f) Effect of the pretence: - the handing over of the property must have
actually been caused by the pretence.
For court to convict of an accused of the offence of obtaining money by false presence the
following elements must be proved beyond reasonable doubt
1. Obtaining or taking away something capable of being stolen
2. Taking must be by false pretence
3. There must be intent to defraud
4. That the accused person participated in the commission of the offence.
the principle established by decided cases in regard to the offence of obtaining money by false
pretence. “a statement of intention about further conduct, whether or not it be a statement of
existing fact, is not a statement that will amount to a false presence in criminal law”. - See R vs.
Dent [1975] 2 ALL ER 806 at page 807. The principle was confirmed in the case of Uganda vs.
Daudi Bosa [1977] HCN 235 where Sekandi J held that “/( person who obtaining money from
fraudulently on promising to render services or to deliver goods cannot be convicted of
obtaining money by false pretenses or of obtaining credit by fraud, the reason being that a
statement of intention about further conduct whether or not it be a statement of existing fact,
is not such a statement as will amount to a false presence in criminal law
Kavuma denis v u ca 38/21

Forgery
Forgery C/s 342 and 347 of The Penal Code Act. — this offence entails the making of a false
document, with intent to defraud or deceive and proof that the document was made by the
accused person. It involves making a document purporting to be what in fact it is not or making
a material alteration to a document.t — Forgery is the false making of an instrument purporting
to be that which it is not; it is not the making of an instrument which purports to be what it
really is, but which contains false statements —The false document must be clearly stated in
the charge sheet and identified at the trial. The prosecution cannot expand its case to rely on
the falsity of other documents that are attached or annexed to the document specified in the
charge sheet
Ingredients
the offence of Forgery. For a prima facie case to be made out with regard to the offence of
Forgery C/s 348(1) of The Penal Code Act, the prosecution had to lead credible evidence on
each of the following essential ingredients;
1. The making of a false document.
2. With intent to defraud or deceive.
3. The document was made by the accused.
1. Forgery is the creation of a false document or material alteration of a document. It involves
making a document purporting to be what in fact it is not or making a material alteration to a
document, i.e. taking a genuine document and changing it, in some significant way by making of
a material alteration in or addition to a document which is genuine. A person "makes" a new
document when he or she alters an existing document (see R v. Ondhia [1998] 2 Cr App R 150).
Altering, or dealing with a document so that the whole of it or a material part of it purports to
be what in fact it is not; or purports to be made, altered or dealt with by a person who did not
make, alter or deal with it
] According to section 2 (b) of The Evidence Act, “document” means any matter expressed or
described upon any substance by means of letters, figures or marks, or by more than one of
those means, intended to be used, or which may 6 be used, for the purpose of recording that
matter. Therefore, a "document" includes: any book, map, plan, graph or drawing; any
photograph; any label, marking or other writing which identifies or describes anything of which
it forms part, or to which it is attached by any means whatsoever; any disc, tape, sound track or
other device in which sounds or other data (not being visual images) are embodied so as to be
capable (with or without the aid of some other equipment) of being reproduced therefrom; any
film (including microfilm), negative, tape or other device in which one or more visual images are
embodied so as to be capable (with or without the aid of some other equipment) of being
reproduced therefrom; and anything whatsoever on which is marked any words, figures, letters
or symbols which are capable of carrying a definite meaning to persons conversant with them.
Forgery is the false making of an instrument purporting to be that which it is not; it is not the
making of an instrument which purports to be what it really is, but which contains false
statements. Telling a lie does not become a forgery because it is reduced into writing (see Ex
parte Windsor (1865), 10 Cox C.C. 118 at 123). The document must "tell a lie about itself." To be
"false", the document must purport to be something which it is not (see Brott v. R (1992) 173
CLR 426). The material included must have been fabricated or altered significantly in order to
represent something it is actually not. It is possible for some lines or words or even letters to be
subsequently added, deleted, erased or obliterated from original text changing the meaning or
value of the original document considerably. A document which is false in reference to the very
purpose for which the document was created is certainly one which is false in a material
particular. A document is "false" if it purports:- to have been made in the form in which it is
made by a person who did not in fact make it in that form; or to have been made in the form in
which it is made on the authority of a person who did not in fact authorise its making in that
form; or to have been made in the terms in which it is 7 made by a person who did not in fact
make it in those terms; or to have been made in the terms in which it is made on the authority
of a person who did not in fact authorise its making in those terms; or to have been altered in
any respect by a person who did not in fact alter it in that respect; or to have been altered in
any respect on the authority of a person who did not in fact authorise the alteration in that
respect; or to have been made or altered on a date on which, or at a place at which, or
otherwise in circumstances in which, it was not in fact made or altered (for example a valuation
of non-existent goods (as the goods needed to exist before the valuation could properly be
made, see R v. Donnelly [1984] 1 WLR 1017 - or a document that purported to be made in the
presence of people who were not present, see R v. Warneford [1994] Crim LR 753); or to have
been made or altered by an existing person who did not in fact exist (this does not include
documents made using a false identity, an alias or nom de plume, - see R v. More [1987] 1 WLR
1578 and Brott v. R (1992) 173 CLR 426 at 446). [14] The false document must be clearly stated
in the charge sheet and identified at the trial. The prosecution cannot expand its case to rely on
the falsity of other documents that are attached or annexed to the document specified in the
charge sheet (e.g., supporting documentation for a loan application).

2. Whereas acts of destroying, alteration, or mutilation, of any original document are

considered as falsification, the act is not unlawful if it occurred out of negligence, without an
intention to deceive. "To deceive is ..... to induce a man to believe that a thing is true which is
false, and which the person practicing the deceit: it is by deceit to induce a man to act to his
injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to
defraud is by deceit to induce a course of action" (see R v. Bussey (1931) 22 Cr App R 160 at
162; See also: Attorney – General's Reference No. 2 of 1980 (1981) 72 Cr App R 64; [1981] 1 All
ER 493 and R v. Turner (1981) 72 Cr App R 117). The intention to deceive commonly arises as
the way to trick people into parting with money or some other property. Forged documents are
commonly used to substantiate false claims, for financial or extraneous gains usually causing
wrongful loss to others. For purpose of this offence, the accused must have the intention that
someone be induced to accept the document as genuine (see R v. Utting [1987] 1 WLR 1375).
The prosecution must prove that this intention existed at the time the accused made the
document (see R v. Ondhia [1998] 2 Cr App R 150 and R v. Tobierre [1986] 1 WLR 125). To
defraud is to deceive by deceit and to deceive is to induce a man or woman to believe that a
thing is true which is false. Shortly put, to deceive is falsehood to induce a state of mind; to
defraud is by deceit to induce a course of action (see R. v. Wines [1953] 2 ALL E.R ER1497). It is
not necessary to show that the accused achieved his or her intended purpose. The gist of the
offence lies in intention, rather than consequence (see Attorney General’s Reference (No 1 of
2000) [2001] 1 WLR 331and R v. Garcia (1988) 87 Cr App R 175).

3. A person "makes" a document if he or she is ultimately responsible for it coming into

existence. Making of a document is different from causing it to be made. A charge of forgery
cannot be imposed on a person who is not the maker of the same
Defences
1.

Cheating contrary to s 307 PCA

The offence is provided for under section 307 of the PCA which states that any person who by
means of anyfraudulent trick or deviceobtains 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 or device,
commits a misdemeanour and is liable to imprisonment for three years.
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 49 [1975] EA 118. 27 such trick.
The offence is a misdemeanour punishable by imprisonment for three years. In effect, cheating
is obtaining property of another by a deceitful of illegal practice. 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. 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, 50 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 evidence51 will be exercised
in favour of the prosecution. The distinction between these two offences has been considered
in the case of Blasius v R.52 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. On
receiving Shs. 34/- he entered a building and disappeared. The charge as laid did not specify the
trick or device used by the appellant. 50 [1974] EA 552 51 52 [1973] EA 510 28 On appeal the
court discussed two cases to illustrate the difference. The first one is Mohamed Selemani
Mzaramo v R53 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. The second case is John Joseph v R 54 where 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.’ It was further stated that:
In the instant case, the appellant said his tine contained groundnut oil. It appeared from the
fact that some groundnut oil was on the top of the tin, that what was stated to be the contents
was true. While the manufacture of a tin with water in it might be seen as a trick or device,
nevertheless it can hardly be doubted that it was the appellant’s statement that was the main
deception, no doubt aided to some extent by the state of the tin. Had the appellant merely
produced the tin, that would not have been sufficient to deceive N. I am inclined to the view
that where money is obtained on the strength of the statement as to the contents or quality of
some object, it is the false statement concerning the contents of the object rather than the
presence of the thing that is material. For this reason, I would prefer to base the appellant’s
conviction on section 302 of the Penal Code that of obtaining money by false pretence rather
than cheating. But in saying so, I accept that it might be that either section can be employed
according to the circumstances of a particular case. Even in the present case, the distinction is
narrow indeed. One has to compare the decisions in these two cases to conclude that such a
distinction is non-existent or if there is, is of no consequence. In both cases, a trick or device
was used (in one case a tin of sand, in the other a tin of turbid water), in both cases a layer of
the actual substance (sugar in one case and oil in the other) was spread over the top to give the
impression that the tin contained sugar or oil and finally in both 53 (1969), H.C.D. 127 54
(1969), H.C.D 171 29 cases the appellants falsely represented to the complainants that the tins
contained sugar or oil. These false representations deceived the complainants in both cases. Yet
in one case the transaction was said to cheating and in another to obtaining money by false
pretences. In the instant (Blasius)case, the judge observed that the problem underlying the
distinction between these two offences is that in every cheating situation, there is involved a
false pretence for in order to succeed, the trick or device must be accompanied by false
description of it, which therefore is a false statement, leading to the offence of obtaining
whatever is obtained by false pretences. He therefore opined that both the above cases could
quite properly have been charged as obtaining by false pretences. The result of this analysis is
that all cheating situations contain elements of obtaining by false pretences, although certainly
the converse is not true. The court therefore held that the present case was one of obtaining
money by false pretences and not cheating. The appellant, if he did, obtained money by falsely
pretending that he had fish to sell. In saying so, he did not use any trick or device. He simply
made a statement of an existing fact. The charge for cheating was therefore misconceived.
From the above case, two conclusions can be made and summarized as below: 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.