R v Rubin and Another

• Jurisdiction: South Africa
• Judge: Price JP and Jennett J
• Judgment Date: 21 August 1956
• Citation: 1956 (4) SA 225 (E)
• Hearing Date: 03 August 1956
• Court: Eastern Districts Local Division

R v Rubin and Another
1956 (4) SA 225 (E)

1956 (4) SA p225

Citation	1956 (4) SA 225 (E)
Court	Eastern Districts Local Division
Judge	Price JP and Jennett J
Heard	August 3, 1956
Judgment	August 21, 1956

Flynote : Sleutelwoorde

Criminal law — Fraud — Representation that cheques issued of good value — Request that cheques if dishonoured, should be represented — Banking account such that none would have been met G on re-presentation — Prima facie proof that representation false — Drawer allowing use of banking account — Agreement that cheques to be issued only if funds in account to meet them — Drawer not associated with party so cashing cheques — Sec. 381 (7) of Act 56 of 1955 not applicable.

Headnote : Kopnota

H A charge of fraud averred that the appellants had represented that certain cheques drawn by the second appellant, the last of which was drawn on 11th February, 1956, were good and available cheques of the value stated, that there were sufficient funds in the bank to meet them and that such cheques would be met on presentation. The evidence disclosed that the first appellant had requested the complainants to cash the cheques, that he informed the complainants that should the cheques be dishonoured they should be

1956 (4) SA p226

re-represented within 14 days or less of the issued date, and that none of the cheques would have been met on 1st March, 1956. In terms of a written statement given by the second appellant to the Crown, it appeared that he had agreed to allow the first appellant the use of his banking account on condition that he paid into that account enough money to cover any drawings before withdrawals were made and that he would receive 10 per cent of the value of each cheque drawn by the first A appellant. On an appeal from a conviction,

Held, that the evidence constituted prima facie proof that the representations had been false and as no evidence had been given by the appellants to displace that inference, it remained undisturbed.

Held, further, that the second appellant had not been associated with the first appellant and consequently section 381 (7) of Act 56 of 1955 was not applicable.

B Held, further, as it had not been proved that the second appellant, when he signed the cheques, knew that they would not be met, that his conviction should be set aside.

Case Information

Appeal from a conviction in a magistrate's court. The facts appear from the reasons for judgment.

D. D v Kannemeyer, for the appellants.

M. Imber, for the Crown: Whenever a person, in the ordinary course, issues a cheque he makes a representation, by such issue, that he believes that the cheque will be paid and intends that it shall be paid. That representation is a representation concerning, not future conduct, D but an existing fact, namely his state of mind. If such representation is false, it will substantiate an allegation of fraud. See Rex v Oakley, 1935 OPD 38 at p. 40; Rex v Bird, 1944 CPD 105 at p. 107. The nature of the representation made by appellant No. 1 related to an existing fact, namely, that the cheques forming the subject of counts 1 - 5 were good and valid orders for payment at the time of delivery, E coupled with a statement as to future intention. See Rex v Mohr, 1944 T.P.D. 105 especially at pp. 108 et seq.; Rex v Larkins, 1934 AD 91 at p. 93; Rex v Kruse, 1946 AD 524 at pp. 527 et seq.; Halsbury's Laws of England, 3rd ed., vol. 10 at p. 825; English and Empire Digest, vol. 15 at p. 991, especially R v Bates & Pugh, (1848) 3 Cox C.C. 201; Henty v Holt, (1875) 3 C.A. 20; R v Thorland, (1884) 5 N.S.W. F L.R. 412, and R v Apfel, (1872) 3 V.K. Law 172 Aus. As it is difficult for the Crown to show what appellant's state of mind was at the time of the issue of the cheques, his own evidence and his subsequent conduct will be taken into account. If such conduct does not fit into the pattern of honest intention, the inference that he had a fraudulent object in view at the time, will be warranted. Failure to G give evidence must weigh heavily against the appellant. See R v Mohr, supra at pp. 108, 110, 111, 112; R v Bird, supra at pp. 107 - 108, and Rex v Persotam, 1938 AD 91 at pp. 96 - 97. Nor can it make any difference that the fact could only be established at some future date that this representation was actually a fraudulent one and not merely the expression of a futile hope. Rex v Deetlefs, 1953 (1) SA 418 (AD) H at pp. 421 - 422. That the appellant, in making the representations he did, did envisage the possibility that the cheques would not be met clearly establishes an absence of honest belief at the time the representations were made. See Rex v Myers, 1948 (1) SA 375 (AD) at pp. 382 et seq., and de Wet & Swanepoel on Strafreg at p. 351. In so far as appellant No. 2 is concerned, it is submitted that because of the association which existed between appellant C

1956 (4) SA p227

No. 1, who had the facilities of appellant No. 2's banking account, and appellant No. 2, who received 10 per cent of the face value of cheques which he had signed in blank, but which were filled in, presented and cashed by No. 1, he, No. 2, being a member of such association is guilty A in terms of sec. 381 (7) of Act 56 of 1955 unless he can discharge the onus placed upon him by the section. On the section, see Rex v Van den...