Supreme Court dismissed appeal on forgery count but quashed other convictions and altered sentence.

[*1032] 1968 September 27

(VASSILIADES, P., TRIANTAFYLLIDES, JOSPHIDES, JJ.)

APPELLATE JURISDICTION

Kyriacos Papademetriou,

Appellant,

v.

The Police,

Respondents.

(Criminal Appeal No.3002).

Criminal Law - Conviction - Forgery, uttering false hill of exchange, fraud and stealing of money, contrary to sections 331, 332, 333(a), 336, 339, 255, 270(c) and 297 of the Criminal Code, Cap.154 - Appellant failed to satisfy Court of Appeal that the assessment of the evidence adduced before the trial Court and the conclusions reached thereon, were erroneous.

X. Clerides with X. Syllouris, for the Appellant.

A. Frangos, Senior Counsel of the Republic, for the Respondents.

JUDGMENT[1]*

The Judgment of the Court was delivered by:

VASSILIADES. P.: This is an appeal against conviction in the District Court of Larnaca, where the appellant was convicted on charges connected with a forged bill of exchange and the stealing of a sum of money. He was sentenced to imprisonment for one year.

The charge on which the appellant was tried, contained five counts, two of which, connected with the forgery, are triable by an Assize Court. In fact the appellant was committed [*1033] for trial before the Assize Court, hut the Attorney-General exercising his powers under section 155(b) of the Criminal Procedure Law (Cap.155) remitted the case on January 13, 1968, for summary trial in the District Court.

The hearing commenced before the President of the Court on January 20th, 1968, and was completed after a strongly contested trial (and some adjournments) on May 8, 1968, with a conviction on four out of the five counts in the charge; and a concurrent sentence of one year imprisonment on each count.

The five counts in question were:

(1) Forgery of a hill of exchange for £104 under the relevant sections of the Criminal Code, including section 336, which provides for the punishment of life imprisonment for the offence charged under the C.Cr.C. (Cap. 154).

(2) Uttering of the forged hill in question under section 339 of the C.Cr.C.

(3) Obtaining the amount of the bill by false pretences D under section 297 of the C.Cr.C.; and,

(4) Obtaining another sum of £660 by false pretences under section 297 of the C.Cr.C.; and,

(5) Stealing the said sum of £660 under sections 255 and 270(c) of the C.Cr.C.

The appellant pleaded not guilty to all counts and his defence was conducted by two experienced and able counsel. He was convicted on counts 1, 2,

3 and 5, and was acquitted on count 4. The reasons which led the trial Judge to his verdict appear in his fully reasoned and detailed Judgment, challenged by this appeal. [*1034]

In support of their case, the prosecution called 8 witnesses; and produced the forged hill and several other exhibit s. The appellant gave his version of the facts from the witness box where he was called for the defence.

Considerable part of the case is not in dispute. The appellant is a clergyman. After working as a parish deacon for about ten years, 1955-1965, he was interdicted by his Bishop; and, in order to earn a living for himself and his family, he said, he engaged in business, including the importation and sale of second-hand cars.

In March, 1967, the appellant with two other Cypriots whom he met in London and another person who now lives there, formed a private limited liability company which they registered in Cyprus under the name of "The Rock Finance Company Limited". Appellant agreed to contribute £2,000 in the share capital of the company. He was then in possession, he said, of about

200 bills of exchange of the total value of about £3,000. His place of business in Larnaca became the registered office of the company; and he became the Company Secretary. To avoid returning to the present relations between the appellant and his business associates at a later stage, we may say that according to his evidence there are already two civil actions pending between them in the courts of Nicosia and Larnaca.

Among the bills in appellant’s hands at the time of the formation of the company, in March 1967, there were those from the sale of a second-hand car which the appellant sold to a villager the previous month (February 1967) for £800, out of which the appellant received £150 in cash and the balance [*1035] of £650, in eight hills payable quarterly; seven for £83 each and the eighth for £86,600 mils.

The eight bills in question are before the Court as exhibits in this case. They are all on the same printed form, and the appellant admits having prepared them himself for signature by the buyer of a car. The handwriting on these bills he admits to be his own, excepting for the signatures and the rubber stamp which speak for themselves. One of such stamps is that of the appellant

where he is described as “Διάκονος Κ. Παπαδημητρίου – Ανιπρόσωπος Λάρνακος”, and

is over his signature under the endorsement "pay to the order of the Pock Finance Co, Ltd.". On an identical printed form and bearing the same endorsement and rubber stamps, but in somewhat different handwriting is the exhibit of the forged bill for £104 for the making and uttering of which the appellant was charged on the first two counts; and for the cash collected from the Bank on the third count.

It is not disputed by the defence that the bill in question is a false and forged draft; and there can be no doubt about it. Appellant’s version is that he had nothing to do with the forgery, and that he first came to know of the existence of this bill during the Police investigations in the present case. He denied that he had anything to do with the making, uttering or the circulation of this forged bill. The issue in the case is whether the Prosecution has established beyond reasonable doubt appellant’s guilt in the three counts connected with the forged bill.

The appellant admits that in February 1967 he went to the village of Alaminos in the District of Larnaca where [*1036] he agreed with witness Charalambos HjiGeorghiou to sell to the latter on hire purchase terms a motor-car under registration No.CZ.202 for £800; and that a formal contract (which, however, was not produced in this case) covering the transaction was duly signed. Appellant also admits that he received against the agreed price of the car £150 in cash from the buyer; and that the balance of £650 was payable in eight quarterly instalments, in respect of which he prepared eight bills which the buyer signed two or three days later, when the appellant produced them for signature to the buyer. The latter, who gave evidence for the prosecution, stated that he signed the bills at the coffee-shop of his village, where the appellant brought them, in the presence of several persons, who happened to be there. He definitely remembered that they were eight in number, having checked them twice. Seven of them were for £83 each and the eighth for £86.600 mils, payable quarterly as agreed, through a Bank where the seller would have them discounted. The first was payable on the 18th May, 1967.

In March, 1967 the appellant and his business associates formed their company (The Rock Finance Company Limited, already mentioned) to the order of which the appellant endorsed about 200 bills, he stated, of a total value of about £3,000, including the eight bills of witness HjiGeorghiou. He delivered them all in a bunch, he stated, to one of his associates who brought them back to the appellant two or three days later for endorsement. He signed all these bills, the appellant stated, without checking them; and this is how, he suggests, the endorsements on HjiGeorghiou’s bills (including the false one for £104) came to bear appellant’s seal and signature, put there innocently without noticing the fraud. [*1037] It was suggested on ‘behalf’ of the appellant before us that his company associate, or some other unknown person, must have forged the false bill; and mixing it in the bunch of the other bills of the appellant, got him to seal and sign it without any knowledge of the fraud.

As one may well think, the associate's evidence on the point is a completely different version. He states that the appellant delivered to him HjiGeorghiou*s hills from the sale of Car No.CZ.202 (including the forged one) together with other hills ready for discounting with the Bank, for the account of their company; and that the associate delivered the bills to the Bank in the condition in which they were handed to him by the appellant.

The fraud came to light in the following circumstances:

The first bill payable by witness HjiGeorghiou was due on the 18th May, 1967, i.e. three months after the sale of the car as agreed. The witness, however, finding himself in a position to pay the amount of the bill in question about a month before maturity he went to the Bank for that purpose. There he was informed, to his great surprise, that there were two hills in the hands of the Bank payable on the 18th May, 1967. One for £83, which the witness had in mind and went to pay, and a second bill for £104 also due on May 18, 1967, of which he had never heard before.

After discussing the matter with the Bank official, and after making sure that there was no mistake about it, the witness went directly to appellant's

office for an explanation. He took with him the Chairman of the Village Commission, who [*1038] knew of the transaction

regarding the sale of the car, and another person. In their presence he asked the appellant for an explanation regarding the hill for £104, which the witness had never signed, as he stressed to the appellant.

The reaction of the appellant to these representations throws, in our opinion, useful light on the issue of appellant’s guilt. He tried to calm the witness with the assurance that there was nothing to worry about as his hills were in order. And, to the protest of the witness how could a bill for £104, which he never signed, he in order, the appellant remarked that the witness had apparently signed it in duplicate without realising the position. (Το υπέγραψε εις διπλούν και δεν το αντελήφθη).

The witness, however, in the face of such a situation, proposed payment of the whole amount of £650, in return of all the bills he signed for that amount. This offer speaks clearly of the anxiety which the forged hill created in the mind of the witness - buyer of the car. The appellant could not, of course, decline the proposal, agreed to the suggestion and it was arranged that witness HjiGeorghiou would try to raise the money elsewhere and come with it the following day for payment of the balance of the price of the car and transfer of its registration to the buyer.

The following day the witness, together with another person who gave evidence for the prosecution, witness Lavithis, went to appellant’s office with the amount required for the settlement of the balance of the price (£650), in order to have the hills settled and returned and the registration of the car transferred. In the meantime, the buyer was informed [*1039] that the car was registered in the name of a third party, the transport company of Lefkaritis Bros. It became, therefore, necessary for the buyer and the appellant to proceed to the offices of Lefkaritis Bros.; witness Lavithis went along with them.

There, one of the Managers, who was referred to as Mr. Kallis, said that the car in question was the subject matter of a hire purchase to a third person, one Elias Sarmia, who still owed to Lefkaritis Bros. £551 out of the price of the car, and that Lefkaritis Bros, would not transfer the registration of the car to witness HjiGeorghiou, unless the said amount of £551 due by Sarmia were paid.

At the request of the appellant, witness HjiGeorghiou paid to Lefkaritis Bros, the said amount of £551, so that the registration could be transferred to witness HjiGeorghioa. Lefkaritis Bros, issued a receipt for the payment in question, dated 12.4.1967, which is before the Court as exhibit 2. The witness moreover paid to the appellant £109 in cash, which together with the £551 paid to Lefkaritis Bros, made the total of £650, plus £10 for interest, from the sale of the car in February. (£551+109=650 +10). For this payment, the witness obtained a receipt from the appellant which is exhibit No.3 in these proceedings.

This receipt (exhibit 3) is issued on a printed form bearing the name and ecclesiastical title of the appellant, as well as his business address. It is numbered; and it states that it was issued by the appellant "in full settlement of the account for the car CZ.202". It is dated 12.4.67 and signed by the person who made the payment (witness HjiGeorghiou) and by the appellant who received the money [*1040]

By the time all these formalities were completed, the Bank had closed for the public, and when the parties went there for the settlement of the bills the appellant undertook to see to it the following day and to forward to the buyer all the bills signed by him in respect of the car duly settled.

After "a few days" however, instead of the settled bills, witness HjiGeorghicu received from the Bank a formal notice requiring him to pay the two bills in the hands of the Bank due on the 18th May, 1967 i.e. the first bill for £83 and that for £104. Paced with this new surprise, witness Hji- Georghiou went again to the office of the appellant to whom he presented the notice of the Bank and asked for explanations,

The appellant again tried to re-assure the witness that everything was alright; and suggested that the latter should ignore the notice from the Bank. "How can I ignore it" the witness protested and finding himself in that unsatisfactory situation the witness went to the Police where he reported the matter. This also, in our opinion, throws useful light on the way in which the principal parties involved in this case reacted at the different stages.

The appellant was called at the Police station where he repeated the assurance that the buyer's bills would be duly returned to the complainant who had already paid for the car. There is no evidence as to what was said at the Police station regarding the bill for £104. Nor is there any evidence as to what became of the £109 which the appellant collected on the 12.4.67 for the company. But there is the fact that after appellant's assurances at the Police station the two of them [*1041] (appellant and witness) went to a lawyer’s office where a document was drawn up, intended to remove the anxiety of witness HjiGeorghiou regarding his bills.

The document in question was produced in these proceedings as exhibit 4 and speaks for itself. Unfortunately it is undated, but in our opinion it constitutes material and undisputed corroboration of the version of witness HjiGeorghiou, coming from the appellant himself and bearing his signature.

The exhibit in question speaks of nine bills of exchange for a total amount of £754 (that is to say the amount of £650 in respect of which the witness signed the eight bills described in his evidence, and the amount of £104 of the forged bill). Furthermore, the exhibit speaks of settlement of the interest and connects directly nine bills with the sale of car CZ.202, for a total sum of £754 i.e. the unpaid balance of the sale price of £650, plus the amount of the forged bill. The exhibit also states that the bills which are still with the Bank for the account of appellant's company have all been settled and shall be returned to the buyer of the car as soon as this can be arranged by the Directors of the company, who are out of Cyprus “for the time being.” This document, prepared by a lawyer, reflects the instructions given to him by the interested parties and the readiness of the appellant to remove the complainant’s anxiety regarding the forged bill.

Appellant's explanation for the reference to nine bills for a total sum of £754 instead of £650, is that he signed the document without attaching any importance to these particulars which were inserted at the request of the buyer, he said. [*1042]

But in addition to this material evidence, there is further support of HjiGeorghiou’s version in the evidence of the appellant, to which learned counsel for the Republic has drawn our attention. Answering questions put to him in crossexamination, the appellant admitted that after the signing of the hills for the balance of the price (£650) the appellant realised that while the hire purchase contract provided for the payment of irterest at the rate of 8% on the unpaid amount of the price, in preparing the bills the appellant had omitted to provide for the payment of interest. That was about a month after the signing of the bills for the £650, he said; and that having calculated the interest he found that this would amount to £104. In his evidence the appellant added that he mentioned this fact to the buyer; but he denied that he prepared the bill for £104 to cover the interest.

The trial Court accepted the evidence of witness HjiGeorghiou in preference to that of the appellant which it found to be untrue in several points. And, on the basis ofthe evidence so accepted, together with the undisputed evidence in the case, the trial court accepted the version of the prosecution and reached the conclusion that the appellant forged the false bill in question and put it in circulation, with the object of collecting its value. The trial court, therefore, found appellant guilty on the first three counts.

Moreover, the trial Judge convicted the appellant on count 5 for stealing of the £660 which witness HjiGeorghiou paid on the 12th April, 1967 appellant's request, to Lefkaritis Bros, and to the appellant himself in cash. And [*1043] acquitted the appellant on count 4 for obtaining the same amount of £660 by false pretences,

At the hearing of the appeal learned counsel for the prosecution submitted that the conviction on the last count (5) should be for the stealing of £109, which the appellant received for the Rock Finance Co. Ltd., and appropriated to his own use; and should not cover the amount paid to Lefkaritis Bros, for the account of Sarmia.

We find it unnecessary for the purposes of the present appeal to enter into this rather technical aspect of the case. In substance the offence is the same, excepting for the amount. As the change is rather in the interest of the convicted person, we decided to accept the submission; and to alter the conviction accordingly.

The appeal, which the advocates for the appellant presented with ability, was mainly based on the contention that the trial Judge found the evidence of appellant’s associate, who had passed to the Bank the forged bill, together with the other bills, as unsatisfactory in certain parts. And suggested, on behalf of the appellant, that the forgery may have been committed during the two or three days when the bills were in the possession of appellant’s associate, before the endorsements thereon were sealed and signed by the appellant. It was submitted that as the prosecution failed to connect by direct evidence the appellant with the forgery, the inference of the trial Judge that he committed the crime and uttered the bill knowing that it was forged, should not be allowed to stand; and the conviction based thereon should be set aside. [*1044]

We heard, counsel on both sides very carefully, in view of the seriousness of the charge and of the consequences of the conviction on the appellant and his family. And we have discussed the matter in detail on more than one occasion during the period which elapsed between the hearing of the appeal and this Judgment. We have not been persuaded that the assessment of the evidence by the trial Judge or that his conclusions were wrong or unreasonable.

There is, however, the fact that while the conviction on the first count (for the forgery) is based on an inference, drawn by the trial Judge from established facts, the conviction on the second count (for knowingly uttering the forged bill) is based on positive evidence directly connecting the appellant with the offence.

Learned counsel for the appellant submitted that the evidence in support of the forgery may create serious suspicion against the appellant; but it is not sufficient to establish his guilt beyond reasonable doubt.

In view of the fact that the first three counts arise from the same set of facts and constitute in substance one crime, this Court decided to take the view most favourable to the appellant and sustain the conviction on one of the three counts; the count on which direct evidence connects the appellant with the commission of the offence.

The version of the appellant that he uttered the forged bill innocently and without realising the position was rejected by the trial court. And, it is in the opinion of this Court completely unacceptable and inconsistent with the evidence which, in our opinion, was rightly accepted by the trial Judge. [*1045]

The appeal, therefore, against conviction on the second count is dismissed and the conviction on that count is affirmed.

As already stated, in substance this is sufficient to cover the offences connected with the false bill for £-104; and therefore the conviction on counts

1 and 3 may be set aside. Apparently, for the same reason, the trial court imposed concurrent sentences on all three counts.

Notwithstanding the serious nature of the crime, and the leniency of the sentence imposed for such offences by the trial Judge, in the view of appellant's previous conviction for a similar offence, this Court decided (bearing in mind the anxiety and the strain which this case must have caused the appellant and his family) to make use of its powers under section 147(1) of the Criminal Procedure Law (Cap. 155) and direct that the sentence shall commence from the date of conviction at the trial court.

In the result:

1. The appeal against conviction on the second count is dismissed and the conviction is affirmed.

2. The convictions on counts 1 & 3 in. the charge are set aside for the reasons stated above.

3. The conviction on count 5 is altered so as to stand for an amount of £109, instead of £660.

4. The concurrent sentences of one year imposed by the trial court to run as from the date of conviction.

Judgment and Order accordingly.

Appeal partly allowed; conviction

on counts 1 and 3 quashed; conviction

on count 5 altered; conviction

on count 2 affirmed; sentence to

run as above

* Copy of this Judgment in Greek as delivered is available at the Supreme Court Registry