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IN THE SUBORDINATE COURT SSN/09/2010

OF THE FIRST CLASS HOLDEN AT NDOLA


(Criminal Jurisdiction)

BETWEEN:

The People

Vs

George Wello Mpombo

Coram: K. Limbani
Mr. M. Mudenda for the State
Mr. B. Mutale of Ellis & Co. and
Mr. W. Kabimba of Kabimba & Co. for the Accused

JUDGMENT

Delivered in Open Court

STATUTE REFERRED TO:

National Payment Systems Act Number 1 of 2007 as read with


the Bank of Zambia Act Number 387 of the Laws of Zambia

CASE REFERRED TO:

Re Wood and Lewis Contract (1898) 1 ch 433

The accused, George Wello Mpombo, stands charged with a count of


dishonoured cheque contrary to Section 33 (1) of the National Payment
Systems Act number 1 of 2007 as read with Bank of Zambia Act
Chapter 387 of the Laws of Zambia. The particulars are that the
accused, on the 18th day of December, 2009 at Ndola in the Ndola
District of the Copperbelt Province of the Republic of Zambia, with
intent to defraud, willfully and dishonestly did issue one cheque
Number 000014 to Colywn Company Limited in the sum of

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K10,000,000.00 on insufficient funded account namely Standard
Chartered Bank Number 0100120696200 which rendered such a
cheque dishonoured. The accused denied the charge.

I warn myself at the outset that the onus is upon the prosecution to
prove its case beyond all reasonable doubt and that there is no onus
on the accused to prove his innocence. The accused is entitled to give
and call evidence or say nothing at all and if he elects to say nothing
this shall not affect the burden on the prosecution. If after considering
the evidence in this matter, there is any doubt in my mind as to the
guilty of the accused, then the accused must be given the benefit of
that doubt.

In order to establish the guilty of the accused, the prosecution must


satisfy me upon each and every ingredient of the charged offence.
The offence is premised under Section 33 (1) of the National Payment
Systems Act Number 1 of 2007 as read with the Bank of Zambia Act
Number 387 of the Laws of Zambia. The section provides that:

“Any person who willfully, dishonestly or with intent to


defraud issues a cheque on an insufficient funded
account or causes to be issued a cheque to be drawn on
that account and which cheque when it is presented for
payment is dishonoured commits an offence and is liable
on conviction to a fine not exceeding one hundred
thousand penalty units or to imprisonment for a term not
exceeding two years or to both.”

For the offence to stand, the prosecution must show that,

1. The accused issued the said cheque Number 000014.

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2. The cheque was issued on an insufficiently funded account.
3. The accused did so willfully, dishonestly or with intent to
defraud.
4. The said cheque was dishonoured.

The prosecution have alleged that the accused committed the charged
offence, if this is true then he is certainly guilty as charged. The state
called six witnesses in this matter, PW1 Iyan T. Findley, PW2
Clementina Mubanga N. Lungu, PW3 Sydney Makwaza, PW4 Obbrey M.
Kashita, PW5 Liya N. Munzela and PW6 Peter Witola while DW1 George
Wello Mpombo gave evidence for the defence. Both the state and the
defence filed written submissions. I shall consider the evidence before
me.

PW1 testified that on the 11th December, 2009 while he was in his
office in Ndola, DW1 approached him asking for K10,000,000.00. PW1
told him that he did not have but when DW1 insisted he told him his
company would lend him the money on condition that he issued a post
dated cheque. PW1 instructed his company official to draw a cheque
and ask DW1 to issue a post dated cheque for the 18 th December,
2009. PW1 asked PW2 to draw a cheque from Colwyn Company
Limited for the money to be lent to DW1, a post dated cheque was left
by DW1. DW1 collected the money. On the 21 st December, 2009, the
post dated cheque that DW1 had issued bounced. PW1 had warned
DW1 that if the cheque bounced, he would take it to the police. He
upon receipt of the returned unpaid cheque directed PW3 to take it to
the police. After the matter was reported at the police, DW1 sent
someone to pay the borrowed money but PW1 told the person that had
been sent that the matter was being handled by the police. The
money was paid at the police and PW2 and PW3 were sent to collect it.
Under cross examination, PW1 stated that DW1 called him the day

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before the cheque bounced asking him not to deposit the cheque as he
had the cash with him in Lusaka. PW1 advised him to deposit the cash
in Lusaka instead of taking it to Ndola. Under re-examination, PW1
stated that the arrangement for the repayment of the money that DW1
borrowed was the post dated cheque.

PW2, a cashier at Colwyn Company limited was called by PW1 on the


11th December, 2009 to his office. She found DW1 in the office where
PW1 instructed her to raise a cheque of K10,000,000.00 payable to
herself in exchange of a K10,000,000.00 post dated cheque for the 18th
December 2009, PW1 was given the deposit slip and after he saw it,
she filed the slip. On the 24th December 2009, PW2 took other
cheques to the bank for banking and while at the bank she discovered
that the cheque DW1 had drawn bounced. PW1 was informed about
the development. The matter was reported to the police by PW3 after
PW1 instructed him to do so. Under cross examination, PW2 stated
that she collected the K10,000,000.00 from the police with PW3 after
the cheque had bounced.

PW3 reported the matter of the cheque bouncing to the police after he
was instructed by PW1. He was present when the person DW1 had
sent to pay back the K10,000,000.00 took the money to the police.
PW4’s evidence was that on the 18th December 2009 a cheque of
K10,000,000.00 was deposited into Colwyn Limited account at Finance
Bank were he works as a Banker. The cheque was from Standard
Chartered Bank. The cheque was sent for clearing but returned unpaid
with words Refer to Drawer. The cheque was collected by PW2 on
the 24th December 2009. PW4 stated that the cheque was number 14
in the amount of K10,000,000.00, the drawer was DW1 and the drawee
bank being Standard Chartered Bank, Manda Hill Branch.

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PW5, the Bank Manager at Standard Chartered Bank Manda Hill
Branch, gave evidence that on the 22nd January 2010, she was in her
office when a police officer, PW6, presented a search warrant for the
account of DW1. She stated that PW6 explained why he wanted to
search the account, that is, in relation to the bounced cheque of
K10,000,000.00 that DW1 had issued to Colwyn Limited. PW6
presented the said cheque number 14 that was written RD. He wanted
to find out if at the time the cheque was presented there was sufficient
money in DW1’s Account. PW5 printed a statement and explained
what was written on the cheque and what was in DW1’s account. She
stated that the cheque in issue went to the account of DW1 on the 18 th
December 2009 and that the balance on the account was K46,600.54.
The cheque was unpaid on the 21st December 2009 due to insufficient
funds.

PW6 investigated the matter after PW3 reported the bouncing of the
cheque on behalf of Colwyn Limited. DW1 borrowed money from PW1,
that is K10,000,000.00, which PW2 paid in exchange for a post dated
cheque in the sum of K10,000,000.00 dated 18th December 2009 that
DW1 issued. The post dated cheque was deposited but returned
unpaid by Standard Chartered Bank due to insufficient funds. DW1
was warned and cautioned. The Bank statement from Finance Bank of
Ndola, Bank Statement from Standard Chartered Bank of Lusaka,
cheque number 000014 dated 18th December 2009 that DW1 issued
and the Bankers book search warrant were tendered as evidence and
marked P1,P2,P3 and P4. Under cross examination, PW6 stated that he
paid the K10,000,000.00 that was paid at the police by DW1’s
representative to PW1. Under re-examination, PW6 stated that at the
time the K10,000,000.00 was paid into the police by DW1’s
representative, the cheque in issue had been dishonoured.

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DW1’s evidence was that he had a problem at his farm and requested
for K10,000,000.00 to solve the problem. K10,000,000.00 was paid to
DW1 in exchange of a post dated cheque. DW1 stated that at the time
his account did not have sufficient funds and PW1 was aware and
agreed to lend the K10,000,000.00. The cheque was dated 18 th
December, on the 17th December, DW1 called PW1 and told him that
he was still mobilizing money and that the cheque should not be
deposited. DW1 stated that when he told PW1 not to deposit the
cheque he agreed. On the same 17th December, DW1 organized the
K10,000,000.00 but stated that PW1 told him that he could make the
payment any other day. DW1 denied that PW1 asked him to deposit
the cash in Lusaka. He also stated that he never issued the cheque
with the intention to defraud. Under cross examination, DW1 stated
that he wrote the bounced cheque and that he was to pay PW1
although it was written in Colwyn Limited. He also stated that the
K10,000,000.00 that he organized on the 17th December 2009 was paid
to the police after the matter was reported at the police. He stated
that the cheque being dated 18th December 2009 meant that the
money he borrowed had to be in the account by that date. Under re-
examination, DW1 stated that PW1 had assured him that the cheque
would not be deposited on the 17th December 2010.

It is not in issue that DW1 borrowed K10,000,000.00 from Colwyn


Limited and issued a post dated cheque dated 18 th December 2009. It
is also not in issue that on the said 18 th December 2009, DW1’s
account did not have sufficient funds hence the said issued cheque
number 000014 bounced. The evidence of all the prosecution
witnesses and that of DW1 confirm the above position. It was PW1’s
evidence which was also confirmed by PW2, PW6 and DW1 himself,
that the payment of the K10,000,000.00 (that DW1 borrowed) was in
exchange of the post dated cheque dated 18th December 2009. DW1

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was therefore expected, as per the agreed condition, to ensure that his
account had sufficient funds on the 18th December 2009 for the
condition of his borrowing to be met. DW1 called PW1 on the 17 th
December 2009 with a view to repay what he had borrowed by cash
but was advised to deposit the money. He was therefore fully aware of
his indebtedness and cannot therefore claim otherwise. Any failure to
meet his obligation would be willful as he had full knowledge of his
obligation. As held in the old case of Re Wood and Lewis Contract
(1898) 1 ch 433, mortgagees and other persons holding securities
are liable for losses caused by their willful default. From the evidence
before court, it is clear that the non depositing of the said
K10,000,000.00 in DW1’s account was willful as he stated in his own
evidence that he had the said amount on the 17th December 2009 and
opted to pay cash instead of the agreed mode. The position that the
payment was not made as PW1 advised that it could be made any
other day would not stand. He was fully aware of the consequence of
not honouring his obligation. His explanation is a mere after thought
meant to cover his act of omission that was done with intention.

As I earlier stated, it is not in issue that DW1 issued the bounced


cheque for the K10,000,000.00 that he borrowed from Colwyn Limited.
He was aware on the 17th December 2009 that his account did not
have sufficient funds and that he had made an obligation to honour a
cheque on the 18th December 2009 that he had issued for the
borrowed sum. DW1 stated that on the 17th December he had
mobilized the cash, it would have been reasonably expected that he
would have deposited the said money as per the agreement of the
borrowing. Failure to do so was deliberate. I should also state that the
cheque in issue was issued in Colwyn Limited a legal person at law and
therefore any dealings with PW1 cannot be an excuse for the non

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depositing of the said K10,000,000.00 that belonged to Colwyn
Limited.

On the totality of the adduced evidence and after considering all the
circumstances, I find that the state has proved its case as per the
required standard and that the accused committed the charged
offence, that is, dishonoured cheque contrary to Section 33 (1) of the
National Payment Systems Act No. 1 of 2007 as read with Bank of
Zambia Act, Chapter 387 of the Laws of Zambia, and I accordingly
convict him.

DELIVERED AT NDOLA THIS 6TH DAY OF AUGUST 2010.

……………..………………………
K. LIMBANI
CHIEF RESIDENT MAGISTRATE

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