Appellant was employed by S.C.O.A. in Freetown as shopmaster in charge of their wholesale shop. On February 6, 1960, he sold sixteen bundles of sheets and received £76 16s. Od. in payment. He failed, however, to enter this transaction in his books, and was charged with embezzlement. At the trial, the appellant stated that, owing to the pressure of work, he had forgotten about the transaction and that, when he later discovered that he had surplus cash in his till, he had, following an accepted practice, passed the surplus cash to two separate items in his cash Sales Book. Two other witnesses testified that this was an accepted practice. The magistrate, however, disbelieved appellant's story, found him guilty and sentenced him to six months' imprisonment with hard labour. He appealed to the Supreme Court. Held, allowing the appeal, that, where the defendant advances a defence which might reasonably be true, a judge sitting alone may not convict him merely because he disbelieves his explanation. Cases referred to: Regina v. Norman (1842) C. & Mar. 501; Regina v. Grunshie (1955) 1 W.A.L.R. 36. S. Beccles Davies for the appellant. Donald Macauley for the respondent. BANKOLE JoNEs J. The Appellant was charged on February 18th, 1960, before Mr. Marcus-Jones at the Police Magistrates Court No. 1 with two offences of embezzlement each forming a separate count. The amounts involved were £60 and £76 16s. Od. respectively. As to the first count, the learned magistrate found the appellant not guilty and acquitted and discharged him. He however found him guilty on the second and sentenced him to six months' imprisonment with hard labour. It is against this conviction and sentence that the appellant has appealed. The appellant was employed by Messrs. S.C.O.A., Kissy Street as shopmaster in charge of their wholesale shop. On February 6, 1960, he sold sixteen bundles of C.I. sheets the property of his employers and received the price for them, namely, the sum of £76 16s. Od. Nowhere in his books did he enter this transaction. That the transaction took place is not denied because there is evidence that the appellant made out to the storekeeper a requisition for the sixteen bundles and the appellant himself admitted selling and receiving the money. He however stated that owing to pressure of work he forgot about the transaction and when he later discovered that he had surplus cash in his till, following an accepted practice, he passed the surplus cash to two separate items by entering in his cash Sales Book a record of fifty bundles C.l. shee~ sold to Choithram instead of forty bundles the quantity actually sold and allocating about £32 to the sale of fishing lines. 

The substance of the grounds of appeal against conviction argued by counsel may be considered under two heads namely: (1) misdirection as to law, and (2) that the verdict is unreasonable and cannot be supported having regard to the evidence. The first ground reads as follows : " That the learned trial magistrate misdirected himself in not accepting the excuse made by your petitioner and confirmed by prosecution witness Baudoin Rogers (first prosecution witness) that it was an allowed practice to account for cash receipts whose items the salesman had forgotten to enter by entering such cash against sundry items such as the salesman could remember ; and that this practice had been followed by your petitioner and to a large extent explained the shortage upon which the charge of embezzlement was founded, and raised a claim of right on your petitioner's behalf." Counsel submitted that the learned magistrate dismissed as false the story told by the appellant as to the manner in which he accounted for what he did not then remember represented the price he had received for the sixteen bundles of C.I. sheets. The appellant's story, he continued, amounted to an excuse explaining why he did not enter in his books the transaction as he should have done. Two witnesses for the prosecution he said swore that the appellant was entitled to account for surpluses in the way he did. Baudoin Rogers, the goods manager of Messrs. S.C.O.A., said: "Some shopmasters account for their surplus cash by attributing it to the sale of some other articles." Samuel Walker, clerk, Wholesale Shop, S.C.O.A. said: "Sometimes we have surplus cash. This is passed to other items." Counsel pointed out what the learned magistrate said about this matter in his judgment. He said: "He (the Accused) has not denied the receipt but what he is now saying is that he accounted for the amount by assigning it to two items, that is by increasing the amount on Bill of Sale Exh. 2 page 16095 from £192 to £230, and assigning a further sum of £32 to sale of fishing lines. This is plainly false." It is difficult, with respect, to understand why the learned magistrate came to the conclusion that the appellant's story was false, and, as a result, found him guilty. The learned magistrate went on: " Even if it were so, it does not account for the whole amount of £76 16s. Od." But on the evidence it is clear that the appellant did not set out to account for the exact sum of £76 16s. Od. He set out to account for a surplus which he had in hand and which when worked out amounts to at least £70. The appellant may have accounted for more than this amount because in his evidence he said as follows: " I also included about £32 to another sale of fishing lines." Crown Counsel conceded that these extracts from the learned magistrate's judgment were unfortunate. My attention was directed to Archbold's Criminal Pleading Evidence and Practice, 34th ed., at para. 1736, p. 658. It reads: " If, instead of denying the appropriation of the money, the party in rendering his account admits it, alleging a right in himself, however unfounded, or  setting up an excuse, however frivolous, he ought not to be convicted of embezzlement." Counsel cited the case of Regina v. Norman (1842) C. & Mar. 501 which is an authority for this proposition. In the present case where the prosecution admitted that a system existed whereby surplus cash could be allocated to other items of sale and the appellant purported to have followed this system, even though such a system may be considered deplorable as the learned magistrate, in my view rightly, thought, yet it is a defence which was available to the appellant and even though the learned magistrate disbelieved the appellant, it did not necessarily follow that the appellant was guilty. In Shaw's Evidence in Criminal Cases, 4th ed., at p. 61, is found the following: " In many cases the defence which is put forward may fail to convince the court-they may even think it is untrue-but if it is disbelieved it is not a necessary consequence that the defendant should be convicted; the real point is not whether the defendant has proved his innocence but whether the prosecution have proved their case." And see also the case of Regina v. Abisa Grunshie, 1 West African Law Reports, at p. 36. It seems to me, therefore, with the utmost respect, that the learned magistrate was wrong in convicting the appellant simply because he thought his story false. The appellant did not deny receiving the money but gave an excuse or explanation which appeared substantial even from the prosecution's point of view. On this ground alone the appellant must succeed. As to the other grounds of appeal, I do not feel myself called upon to consider them in consequence of my finding on the first ground. It follows that the appeal must be allowed and I order that the conviction be set aside and that the appellant be acquitted and discharged.