P L D 1959 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑This is an appeal by the State from the judgment of a learned Judge of the High Court of East Pakistan at Dacca reversing the conviction and sentence of Abu Raza respondent under Ss. 409 and ‑466 of the Pakistan Penal Code. In the year 1954, the respondent was the Superintendent, Amir‑ul‑Islam the Cashier, Joinul Abedin the Assistant Cashier, and Muslehuddin, brother of the wife of the respondent, the Assistant Miscellaneous Store‑keeper of the East Pakistan Government Press at Dacca. In response to a circular letter to certain parties some tenders for the purchase of off‑cut paper, which lay in the Press for disposal were received in the Press. One of the firms, Messrs Muhammad Taqi Muhammad Sadiq, made an offer of Rs. 62 per maund which being the highest was accepted and communicated to the firm on the 29th January, 1954. On the 30th January, 1954, the respondent ordered the Miscellaneous Store‑keeper and the Assistant Miscellaneous Store‑keeper to arrange for the delivery of paper on the 31st January 1954, which was a Sunday, intimating them that he himself would be present at the deal. This order was not communicated to the Miscellaneous Store‑keeper. On Sunday the respondent and his brother‑in‑law, Muslehuddin, went to the Press Godown at Tejgaon. The firm's proprietor, Muhammad Sadiq with another representative of the firm, Shamim Ahmad, came to the godown with two trucks and some coolies. Sixty seven maunds and thirty seers of off cut paper was weighed and delivered to Shamim Ahmad against a kacha receipt for Rs. 4,200/8/0 signed by the respondent. The goods were taken out of the godown under a special permit prepared by the respondent himself. No entry of the sale or of the receipt of the money was made in any of the official records except, according to the respondent, in a suspense account' on some loose papers. The money was not deposited in the treasury till 23rd March. In the beginning of March, 1954, the Special Police Establishment commenced investigation into a theft of off‑cut paper from the Central Government Press. In the course of this investigation Messrs Muhammad Taqi Muhammad Sadiq were questioned and they produced the kacha receipt which had been given to them by the respondent on the 31st January, 1954. It may be mentioned that a kacha receipt is an unstamped receipt on a blank paper as distinguished from a pucca receipt which is stamped and is on the outer‑foil of a printed receipt book. The investigating officer asked the firm to procure a pucca receipt. Accordingly, Shamim Ahmad pressed the respondent for a pucca receipt in substitution of the kacha one, and on the 19th March 1954, the respondent issued to the firm a pucca receipt. On the same date he made over the amount of Rs. 4,200/8/0, to the Cashier who after making an entry in the Unserviceable Articles register deposited the money in the Treasury on the 23rd March 1954. Audit of the accounts of the Government Press commenced on the 30th August, 1954, and some irregularities in the transaction having been detected the respondent was required to explain certain matters. The incident also came to the notice of the Government who at first dealt with the matter departmentally and later decided to hand over the case to the police. After investigation the police made a final report alleging that offences of criminal breach of trust and forgery had been committed by the respondent, Amir‑ul‑Islam, Joinulabedin and Muslehuddin. The offences were taken cog nizance of by Mr. G. R. Chowdhury, Sessions Judge, as ex‑officio Special Judge, who tried the respondent under S. 409 for having committed criminal breach of trust in respect of the amount of Rs. 4,200/8/0 and under S. 466 for having fabricated an entry in the Suspence Account Register (Ex. P. 3). Amir‑ul‑Islam, Joinul Abedin and Muslehuddin were also accused of forgery or criminal breach of trust but they were acquitted. The respondent having been found guilty on both the charges was sentenced to one year's imprisonment and a fine of Rs. 250 on each charge, the sentences of imprisonment having been ordered to run concurrently. Against his conviction and sentence the respondent appealed to the High Court where a learned Judge of that Court accepted his explanation that the case was no more than one of irregularity, unaccompanied by any dishonest intention. The conviction and sentences were, therefore, quashed and the respondent was acquitted. Being dissatisfied with the result the State applied to this Court for special leave to appeal which was granted and we have now heard the learned Advocate‑General in support of the appeal and Mr. Sayem for the respondent. The defence to the charges before the Special Judge was that because the firm could not produce the full amount of Rs. 4,20()/8/0 and the payment made by them was short by Rs. 500 a kacha receipt was issued for the sum of Rs. 3,700/8/0 and neither the transaction was entered in the official records nor the amount actually received deposited in the Treasury. It was pleaded that Muhammad Sadiq had gone out of Dacca and when on his return he paid the balance, the full amount was handed over to the Cashier on the 19th March, for being deposited in the Treasury. As regards the charge of forging the Suspense Account Register, the explanation given was that in consultation with some officials of the Press who knew the Rules the Suspense Account Register was ordered to be printed in the month of August and the entry charged as forgery was made correctly giving therein the date on which the full amount was received. The learned Judge thought that the central point in the case was whether the amount paid by Shamim Ahmad on 31st January, 1954, was Rs. 4,200/8/0 or less by Rs.

500. If it were found that the full amount was not paid on that date, the defence of irregularity not disclosing any dishonest intention was a reasonable possibility, which entitled the respondent to the benefit of the doubt. After examining the evidence of Muhammad Sadiq and Shamim Ahmad in the light of certain relevant circumstances the learned Judge came to the conclusion that it could not be accepted particularly because the firm did not maintain any books of accounts and there was no corroboration of ‑it. He, therefore, accepted the defence case and set aside the conviction under S.

409. As regards the conviction under S. 466 he took the view that since Joinulabedin had been acquitted by the Special Judge on the finding that he had no knowledge of the truth or falsity of the transaction to which the entry related, it was difficult to appreciate how the respondent could be said to have committed forgery. Having examined the case with the care and anxiety which it deserved we have came to the unhesitating conclusion that the respondent has been wrongly acquitted and that both the offences charged were proved against him with that certainty which a finding in a serious criminal case requires. The case is not one of merely believing or disbelieving the direct evidence in the case; it rests on a bed‑rock of circumstantial evidence of which the ingenuity of the learned counsel for the respondent has endea voured no solution. On the respondent's admission that the sale was arranged on a Sunday and a kacha receipt was issued for the money received, whatever its amount, the case ceases to be one of mere irregularity because we find it impossible to accept that the respondent, who is an experienced officer and fully conversant with the broad outline of financial procedure, should have been a party to a series of serious irregularities unless there was some dishonest motive underlying the whole transaction. The tender having been accepted on the 25th January, 1954, and the order of delivery having been made on 30th January, it has not at all been explained why the delivery should have been ordered to be made on the following day which was a Sunday in the absence of Badrul Islam, the Miscellaneous Store‑keeper who was in charge of the Store. There was no hurry. If the respondent could wait for almost a week after having accepted the tender he could equally well have waited for another day to complete the transaction on a working day when the delivery could have been made in the presence of the Store‑keeper, necessary entries made in the official registers and the money deposited in the Treasury. There is also no explanation of why the delivery was made before full payment had been received. If the purchaser was short of money, the respondent could have the paper weighed and directed the purchaser to take delivery on Monday after he had produced a receipted challan of full deposit in the Treasury. The very fact, therefore, that the respondent gave a kacha receipt to the purchaser and prepared a special gate‑pass tends to show that he had intended the paper to be removed in a surreptitious manner. Again no reasonable explanation is forthcoming of his having omitted to cause the necessary entries to be made in the Unservice able Articles' register and the cash book until it appeared to be certain that the matter would no longer remain suppressed and that the transaction was bound to come to light after the purchaser had been questioned by the Police. There was no reason for the respondent to suppose that the purchaser would not pay the full amount. The correct course for him, therefore, was to order the Store‑keeper or even his own brother‑in‑law Muslehuddin to bring the necessary registers, viz., the Unserviceable Articles' register, the cash book, the gate‑pass book and the receipt book to the godown so that necessary entries could be made therein after completing the transaction and the amount deposited in the Treasury on the next working day. The respondent states that he entered the payment of Rs. 3,700/8/0 in a suspense account, which he kept on some papers but we have not been shown any Rule by which a substantial amount like Rs. 3,700/8/0 could be kept out of regular account. Even for the maintenance of a printed suspense account register, which the respondent admittedly prepared after August there is no warrant in the Financial Rules. Add to this the fact that false entries were made later not only in the Unserviceable Articles' register but also in the suspence account register and it becomes perfectly clear that the plea of a mere irregularity put forward by the respondent is an impossibility in the circumstances. It is certain that all this could not have been done unless an improper motive prompted the respondent to act in the manner that he did. The learned Advocate‑General suggests that if the Special Police Establishment had not questioned Muhammad Sadiq in early March, nobody would have known anything about the transaction because no record of it had been kept anywhere accept perhaps in the file, if it was a file, relating to the invitation of tenders. While on the evidence it cannot be said' that the ultimate intention of the respondent was to misappropriate the whole amount, the evidence contains clear indications that some improper motive underlay the deal and the irregularities with" which it was accompanied. In a case like this it is not, and has never been understood to be, the duty of the prosecution to prove by evidence that the money received by the accused was actually converted to his own use; it is sufficient if the Government was deprived of the use of the money for an unexplained period, ‑it being presumed in such a case that the accused had applied this money to his personal needs. The respondent alleges that he had kept the amount of Rs. 3,700/8/0 in his own custody in the office, but of this there is no evidence and the truth of this allegation is extremely unlikely. We have no doubt that, while there may be reasons to suppose that the respondent and the purchasers were in league, the evidence given by Muhammad Sadiq and Shamim Ahmad that the full amount of Rs. 4,200/8/0 was paid is true. Their statements could easily be contradicted by the production of the kacha receipt which must have been returned to the respondent by the purchaser when a pucca receipt was issued to him. In our opinion, the respondent was clearly guilty under S. 409 and the High Court was in error in upsetting the conviction. As regards the charge of forgery, the prosecution case is equally proved. Admittedly, the printed suspense account register was prepared by the respondent in or after August whereas the entry in it which is signed by him is false both as to its contents and as to the alleged date of adjustment. He was thus rightly convicted by the Special Judge under S. 466 and the reasons given by the learned Judge of the High Court for setting aside the conviction are far from convincing because the acquittal of Joinulabedin on the ground that he was not aware of the real nature of the transaction to which the entry related does not mean that the respondent himself did not know of the falsity of' the entry. We, therefore, accept the appeal, set aside the order of the High Court acquitting the respondent and restore the convictions and sentences recorded by the Special Judge. The respondent will be arrested and committed to jail to undergo the unexpired portion of his sentence. K.B.A. Appeal accepted.