BEFORE: HON. MR. JUSTICE J.B.A. KATUTSI
 JUDGEMENT:

This is an appeal by the Director of Public Prosecutions against the decision of a Magistrate Grade 1 passed on the 21^st day of February, 2000. The respondent was charged on three counts. On the first count he was charged with Forgery, Contrary to section 326 of the Penal Code Act. On court 2 he was charged with uttering a false document contrary to section 330 of the Penal Code Act and court 3 with obtaining goods by false pretences contrary to section 289 of the Penal Code Act. He was convicted on courts 1 and 2 and sentenced to a fine of shs. 150,000 or one year in default an enluct. He was acquitted on the third court. The appeal is against both the acquittal on count 3 and the sentence imposed in respect of counts 1 and 2. There are two grounds of appeal. These are:-

1.       The Learned Trial Magistrate erred in law and fact when she made a finding that prosecution had not proved count III of the charge relating to obtaining goods by false pretence when in fact there was evidence on record, thereby accessioning a gross miscarriage of justice.
2.       The learned trial magistrate misdirected herself in passing a sentence too lenient to mitigate the loss suffered by the respondent, thus occasioning a miscarriage of justice. In court Susan Nafula who appeared for the D.P.P. enlarged on the above grounds of appeal. Mr. Nyakana counsel for the respondent supported both the acquittal on court 3 and the sentences imposed in respect of courts 1 and 2.

During the hearing of the appeal I did… pg3 to both counsel that the first ground of appeal had no merit. The arguments of the Learned State Attorney on this found were outside the particulars of the offence as were laid down before the Lower Court. The particulars were that:-
“Patrick N.W. Mugenyi on the 25/9/96 at Kampala in the Kampala District with intent to defraud obtained us $5,400. From Ochaki Kasoro by falsely pretending that he would buy a Toyota Dyna Truck”.

Prosecution had to prove that the pretence was made, that money was received, with intent to defraud, and that the pretence was false to the knowledge of the respondent. Prosecution had to prove the making of the pretence, as stated in the particulars of the offence. Any variance in substance between the pretence in the particulars of the offence and that proved would be fatal. Learned State Attorney was arguing the pretences proved and not those laid down in the particulars of the offence. The evidence as supplied by PW1 who was the complaint was that he had sent the money to Japan personally through serif. Therefore to turn round and say respondent had “on 25/9/96 at Kampala in the Kampala District with intent to defraud, obtained US $5,400 FROM Ochaki

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