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2. A Legal Perspective on the Procedure for Recovering Funds Mistakenly Transferred through the Public Prosecution
3. Dr. Ibrahim Gism Al-Sayed
4. Introduction
5. In practice, it is not uncommon to find that established procedures differ from the requirements of the law or from legally correct procedures. Such discrepancies often arise when an incorrect procedure is initially adopted by a particular authority and is subsequently perpetuated over time until it becomes an accepted administrative practice, as though it were the legally prescribed procedure.
6. One notable example is the procedure followed by certain Public Prosecution offices for recovering funds that have been transferred by mistake. This raises important legal questions concerning the validity and legality of such a procedure. This article seeks to examine these questions and provide a legal assessment of the current practice.
7. First: Financial Transfers through Modern Technology
8. With the widespread use of mobile phones and other digital technologies, financial transactions have undergone a significant transformation. Among the most prominent developments is the ability to transfer money electronically using mobile devices.
9. One common method is known as mobile credit transfer, whereby a user transfers a monetary value from one mobile account to another. This process requires only a mobile phone with sufficient prepaid credit (hereinafter referred to as the sender) and another mobile phone designated to receive the transferred amount (hereinafter referred to as the recipient). The sender enters the recipient's mobile number, follows the transfer procedure prescribed by the relevant telecommunications provider—usually by entering a specific transfer code—and completes the transaction. The recipient may then utilize or sell the transferred credit, often for an agreed commission.
10. A more advanced form of electronic financial transfer emerged with the digitization of banking services. Commercial banks have developed electronic banking applications enabling customers to perform various banking transactions remotely. To access these services, the customer downloads the bank's application onto a mobile phone or personal computer and receives secure authentication credentials, including a confidential password. Once authenticated, the customer may conduct a wide range of banking transactions, most notably transferring funds electronically from his or her bank account to another account.
11. Second: Errors Associated with Electronic Financial Transfers
12. Although these technological developments have greatly facilitated financial transactions, they are not free from risks.
13. Apart from cybercrimes involving unauthorized access to bank accounts or mobile devices for the purpose of stealing funds, another significant risk arises from the sender's own mistake. Such errors typically occur when the sender inadvertently enters an incorrect mobile number or bank account number before confirming the transaction.
14. Once the transfer command is executed, the entire amount is credited to an unintended recipient who has no legal entitlement to the funds. The money is deposited into that person's bank account or mobile wallet, after which the sender faces the difficult task of locating the unintended recipient and attempting to recover the mistakenly transferred amount.
15. The sender's predicament is generally more complicated when the erroneous transfer is made to a bank account rather than to a mobile phone number. In the former case, the sender must first identify the account holder. This normally requires approaching the bank and requesting the customer's identity. However, the bank will ordinarily refuse to disclose such information pursuant to its legal obligation to maintain banking confidentiality. For the same reason, it will likewise refuse to disclose details relating to transactions conducted on the account.
16. By contrast, where the mistaken transfer is made to a mobile phone number, recovery may appear relatively easier. The sender may directly contact the holder of the number and explain the mistake. Three possible scenarios may then arise:
17. The recipient voluntarily returns the transferred amount.
18. The sender is unable to contact the recipient for any reason.
19. The recipient deliberately refuses to return the funds.
20. In the latter two situations, the sender may resort to the Public Prosecution. The same course of action is often followed where the identity of the unintended bank account holder cannot be determined.
21. The question that then arises is: What legal procedure follows in such circumstances?
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23. Third: Procedures Followed by the Public Prosecution in Requests for the Recovery of Funds Mistakenly Transferred
24. In practice, when a person who has mistakenly transferred money approaches the relevant telecommunications company or bank to report the error, the company or bank usually advises the individual to refer the matter to the Public Prosecution.
25. Once an application is submitted, the prevailing practice is for the Public Prosecutor to instruct the police to undertake preliminary inquiries pursuant to Article 47 of the Criminal Procedure Act, 1991. This provision authorizes the Public Prosecutor to conduct preliminary investigative measures before formally initiating criminal proceedings. Such measures are generally employed where the complaint is ambiguous or where the facts alleged do not, on their face, disclose the commission of a criminal offence.
26. After recording the complainant's statement, the Public Prosecutor typically issues an official communication to the telecommunications company or the relevant bank directing it to reverse the transaction and restore the transferred amount to the person who mistakenly initiated the transfer.
27. The question therefore arises: Is such a procedure legally valid?
28. In our opinion, the answer is no. Indeed, such a procedure exceeds the statutory powers of the Public Prosecution. This conclusion may be supported by the following considerations.
29. 1. Lack of Statutory Authority
30. A decision directing the return of money—regardless of the circumstances under which the dispute arose—is, in substance, a judicial determination concerning civil rights and obligations. Such determinations fall exclusively within the jurisdiction of the competent courts after legal proceedings have been instituted and adjudicated in accordance with the applicable procedural laws.
31. Moreover, directing a bank or telecommunications company to restore funds is not merely equivalent to rendering a judgment; it also amounts to enforcing that judgment. Since the Public Prosecution is neither vested with judicial authority to adjudicate private financial disputes under the Criminal Procedure Act, 1991, nor empowered to enforce judicial decisions in such matters, issuing such an order clearly exceeds its statutory mandate and is therefore unlawful.
32. 2. Potential for Fraud and Abuse
33. This practice also creates opportunities for fraudulent claims.
34. For example, where one person legitimately transfers money to another in discharge of an existing debt, the payer may subsequently approach the Public Prosecution alleging that the transfer was made by mistake. If the Public Prosecution orders the recovery of the funds without judicial scrutiny, it may effectively restore money to a person who has no legal entitlement to recover it.
35. A further scenario may arise where a fraudster becomes aware that a financial transfer has taken place between two individuals and somehow obtains the relevant telephone numbers or account details. The fraudster could falsely impersonate the sender and submit an application seeking recovery of the transferred amount. Should the Public Prosecution grant such a request without adequate verification, it would inadvertently facilitate fraud.
36. These examples demonstrate that permitting the Public Prosecution to order the recovery of disputed funds without judicial proceedings exposes both financial institutions and the justice system to significant legal risks.
37. What Is the Proper Legal Characterization of Such Cases?
38. In our opinion, where the unintended recipient knowingly refuses to return the mistakenly transferred funds, the conduct may constitute the offence of Criminal Misappropriation under Article 180 of the Sudanese Criminal Code of 1991, which provides that:
39. Any person who takes, borrows, finds, or acquires possession of movable property belonging to another by mistake and thereafter dishonestly denies ownership thereof or wrongfully disposes of such property shall be liable to the prescribed punishment.
40. An examination of the constituent elements of this offence reveals two essential requirements relevant to mistaken bank transfers.
41. The first is possession acquired by mistake. This element is clearly satisfied where funds are credited to a person's account as a result of the sender's error.
42. The second is the existence of criminal intent, manifested through the recipient's dishonest denial of the owner's rights or refusal to return the funds.
43. Accordingly, once the unintended recipient is informed of the mistake and nevertheless deliberately refuses to restore the money, the offence is complete. At that stage, the Public Prosecution should initiate criminal proceedings under Article 180, arrest the accused where legally justified, and, where appropriate, release the accused on bail subject to a financial guarantee equivalent to the disputed amount.
44. Thereafter, the case should either be referred to the competent criminal court for adjudication or terminated by reconciliation if the parties reach an amicable settlement, since the offence is one in which the private right may be waived in accordance with the applicable law.
45. Should the court ultimately convict the accused, it may also order restitution of the funds to the complainant as part of its judgment.
46. Civil Remedy Based on Unjust Enrichment
47. Conversely, where the recipient cannot be identified or located for any reason, the sender retains the right to institute civil proceedings based on the doctrine of unjust enrichment.
48. Upon hearing the claimant's evidence, the competent civil court may issue a default judgment ordering repayment of the mistakenly transferred funds.
49. Furthermore, even where the recipient's identity and whereabouts are known, nothing prevents the sender from pursuing a civil action based on unjust enrichment instead of initiating criminal proceedings, particularly where the facts do not disclose the existence of criminal intent.
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51. Findings
52. The foregoing analysis leads to the following conclusions:
53. The continuous expansion of modern financial technologies has resulted in a corresponding increase in cases of funds being mistakenly transferred to unintended recipients.
54. The current practice whereby the Public Prosecution orders the recovery of funds mistakenly transferred to their sender lacks a proper legal basis and is inconsistent with the powers conferred upon the Public Prosecution under the law.
55. The issuance of such recovery orders by the Public Prosecution may inadvertently facilitate fraudulent schemes by enabling dishonest individuals to reclaim funds to which they are not legally entitled.
56. Where a recipient knowingly retains funds that were mistakenly transferred and refuses to return them after becoming aware of the mistake, such conduct may constitute the offence of Criminal Misappropriation under Article 180 of the Sudanese Criminal Code of 1991. In other circumstances, the matter may instead give rise to a civil claim founded on the doctrine of unjust enrichment.

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58. Recommendations
59. In light of the foregoing, the following recommendations are proposed:
60. The Public Prosecution should refrain from issuing administrative or prosecutorial orders directing the return of funds solely on the basis of an allegation that the transfer occurred by mistake, as such orders fall outside its statutory jurisdiction.
61. Whenever an application for the recovery of mistakenly transferred funds is submitted, the Public Prosecution should carefully examine the facts to determine whether they disclose the constituent elements of the offence of Criminal Misappropriation under Article 180 of the Sudanese Criminal Code of 1991 or whether the matter constitutes a purely civil dispute based on unjust enrichment.
62. Where the evidence establishes that the recipient, after acquiring possession of the funds by mistake, intentionally refuses to return them, the Public Prosecution should institute criminal proceedings under Article 180 of the Criminal Code. Conversely, where criminal intent is absent, the applicant should be advised to pursue the appropriate civil remedy based on the doctrine of unjust enrichment before the competent civil court.

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64. Conclusion
65. The increasing reliance on electronic financial transactions has undoubtedly enhanced the efficiency and convenience of modern commerce. However, it has also generated novel legal challenges that require responses firmly grounded in the rule of law.
66. Although the desire to provide an expeditious remedy for individuals who mistakenly transfer funds is understandable, administrative convenience cannot justify the exercise of powers that have not been conferred by law. The recovery of disputed funds affects proprietary rights and therefore falls, as a matter of principle, within the jurisdiction of the judiciary rather than the prosecutorial authorities.
67. A clear distinction must consequently be maintained between cases involving criminal conduct—where the recipient knowingly and dishonestly retains funds received by mistake—and those involving no criminal intent, which should be resolved through the ordinary civil law principles governing unjust enrichment. Such an approach preserves the constitutional separation of powers, safeguards procedural fairness, and protects individuals from both arbitrary interference and fraudulent claims.
68. And Allah is the Granter of Success.

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70. Dr. Ibrahim Gism Elseed
71. July 2020