Sylvester v Swarath

• Jurisdiction: Trinidad & Tobago
• Judge: Warner, J.A.
• Judgment Date: 26 July 1988
• Neutral Citation: TT 1988 CA 29
• Docket Number: Mag. No. 156/86
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 26 July 1988

Court of Appeal

Des Iles, J.A.; Warner, J.A

Mag. No. 156/86

Sylvester

and

Swarath

Appearances:

J. Pantor for appellant

D. Allum for respondent

Criminal Law - Obtaining credit by false pretences — Larceny Act Ch.11:12, S. 34(3) — Respondent issued a post-dated cheque (which was subsequently dishonoured) to obtain goods from the appellant — Complaint dismissed by a magistrate — Finding on appeal that there was no evidence that at the time of drawing the post-dated cheque the respondent had no reasonable prospect of it being honoured on or after the stated date and consequently there was no false pretence by the respondent — Appeal dismissed.

Warner, J.A.

1 When we dismissed this appeal on 17th November 1986 and affirmed the magistrate's decision, we stated that we would give our reasons at a later date. We now do so with apologies for the delay.

2 This was an appeal against the refusal of the magistrate to convict. The respondent Geeta Swarath was charged with the indictable offence of obtaining credit to the amount of $1,475 during the period Wednesday 29th August 1984 and Wednesday 3rd April 1985 at Tunapuna in incurring a debt or liability to the House of Rags under false pretences contrary to section 34(3) of the Larceny Act Ch. 11:12”.

3 The prosecution having recommended summary trial and the accused having elected the same, the hearing proceeded summarily, the respondent/defendant pleading not guilty.

4 The case for the prosecution was that on 30th August 1984 goods valued at $1,475 were delivered to respondent from the House of Rags. The transaction was to be one for cash on delivery. However, the respondent at the time of delivery asked one Annette files who was making the delivery to accept a post-dated cheque which could be Cashed in two weeks’ time. The cheque was taken. It was deposited at Republic Bank in the name of House of Rags after the two weeks had expired and returned to them with the endorsement “Return to drawer”. When the cheque was returned, the respondent said that she was expecting some money and that the cheque should be re-deposited. It was again dishonoured. A report was made to the police as a result of which the appellant interviewed the respondent on 3rd April 1985. She said that she was having problems with the bank. She also said that she had offered to Cayenne of the “House of Rags” that she would pay $700 as she had sold part of the garments. This, she said, he refused. She added that she had since sold all the garments and used the honey for other purposes. It was elicited in cross-examination that on 17th September 1984 the respondent who was allowed overdraft of $25,000 had used $19,585 of this, so that a further $5,415.00 then remained for her use by way of overdraft. The Notes of Evidence do not record the submission made by counsel who appeared for the respondent. However, the magistrate's reasons show that on a submission by counsel for the defendant, now the respondent, he dismissed the complaint.

5 Before us it was submitted for the appellant that while the issue of the post-dated cheque at the time did not fall under the heading of obtaining a chattel, money or valuable security by false pretences, the drawing of the post-dated cheque together with the subsequent conversion or disposal of the goods amounted to proof of obtaining credit under false pretences contrary to section 34(3) of the Larceny Act, Ch. 11:12.

6 For this proposition counsel relied on the final paragraph of section 34(3) which is as follows:

“It shall be prima facie proof of such false pretences or of intent to defraud if it is established by evidence that at the time such person incurred the debt or liability or obtained the credit, he had not a reasonable prospect of paying the amount due, or that after any conversion or disposal by such person of the property, he...