P L D 1963 Dacca 867 (PLP)

7. P. W. 5, the Treasury Officer while in the dock gave a different story than what was stated in the First Information Report. In the First Information Report it was stated, as I have already observed that the amount was made up by the appellants by borrowing money from shop‑keepers whereas while in dock the said officer stated that on his demand the shortfall was made up from the single lock and thereafter within a few hours the deficiency thus caused in the single lock was filled up but how, he does not say.

8. The Treasury Officer was in‑charge of the treasury. Immediately under the Treasury Officer there was a treasurer who was a public‑servant. Under him a Head Poddar was commissioned who in his turn used to engage Assistant Poddars on Security who duly received payment of money at the counter: Head Poddar was responsible to the treasurer, whereas the Assistant Poddars were responsible to the Head Poddar. According to the prosecu tion witness No. 1, who is one of the Assistant Poddars on duty on that day, the appellant Solaiman received Rs. 1,699‑9 and the witness Dhirendra Lal Roy Chowdhury received Rs. 2,990‑7‑7 and the appellant Majibar Rahman received Rs. 3,173‑14 and these made a total Rs.7,863‑14‑

7. This witness further stated that from the counter on that day pay ment of Rs. 4,642‑14 was made according to the payment orders received by them. Nothing turns upon Exh. 4, the balance sheet book of the treasurer maintained by treasurer and as such no reference need be made to this exhibit. On that day, accord ing to this witness, there were inside the single lock the appellants, deceased accused Obed Ali, the three clerks and the peon on duty. The duty of Obed Ali was to make the currency notes into bundles. The bundles used to be made of 100 rupee currency notes of any particular denomination. On that day which was a Friday the counter was kept open for receiving deposit from 8 a.m. to 9 a.m. This witness has further stated that the loss was detected by appellant Md. Solaiman. He has said in his examina tion‑in‑chief that the amount was missing between 10 a.m. to 10‑30 a.m. from the custody of appellant Majibar Rahman, the Head Poddar. In this statement of the witness it will be seen that this statement has no bearing upon the question whether the appellant Majibar Rahman has misappropriated the money except that he being the Head Poddar ultimate responsibility lies on him. From the evidence of P. W. 2 we get that at about 10‑30 a.m. the appellant Solaiman told him that two bundles of Rs. 1,000 each were found missing and requested the witness to call Head Poddar Majibar Rahman who had gone out of the single lock. He also said that at that time there was none in the single lock except Solaiman. This witness further said that the duty of Ahad Ali was to prepare accounts of entire money after receipt from different poddars and to inform the treasurer about the amount to be taken to the double lock although personally he was not responsible to take the money to the double lock. Exh. A is an account prepared by Ahad Ali, on that day of the total amount received in the single lock counter. Ahad Ali handed over it to the treasurer and thereafter it is found in evidence that Ahad Ali had gone out for the market on some personal business. The treasurer had admitted that Ahad All Informed him that Rs. 3,900 had to be taken to the double lock. The time factor as to actually when Ahad Ali left the single lock or Majibar Rahman left the single lock or as to when the loss was detected or the Treasury Officer had come to put the money inside the double lock is not so material in this case as it is admitted that there was a loss of Rs. 2,000 when the money was in single lock and that the same was made up by the appellants on demand by the Treasury Officer. As prosecution itself could not be sure from whose custody actually Rs. 2,000 was lost from the single lock, section 34 of the Pakistan Penal Code was resorted to in this case.

9. P. W. 4, a treasury clerk who was working in the single lock had said that after Ahad Ali, had left the single lock, Obed Ali took his pen and marked the bundles of notes meant for the double lock and asked somebody to take the money to double lock. He tried to be precise with regard to the fact that Ahad Ali left the single lock when Obed Ali took his pen. From all his evidence seems, he was a little anxious to help Ahad Ali.

10. P. W. 5, the Treasury Officer, as I have already stated, made a new story. Apart from this according to the Treasury Officer when he went to the single lock enclosure he found therein two clerks and a peon besides the appellants. This is all the evidence that was led by the prosecution in the case.

11. So considering the evidence on record, I find nothing which can go to show that any of the appellants or the whole lot of them conjointly had misappropriated the sum of Rs. 2,000 on the 15th January 1960 from the single lock of the Jessore Treasury. The prosecution has signally failed to establish the elements of section 34 in the present case. The unusual delay in filing the First Information Report raises doubt about the genuinity of the prosecution case.

12. In the evidence of P. W. 1 it is seen that there were three clerks, a peon and the treasurer in the single lock on the day of occurrence and that table of the Poddar was approachable by outsiders through windows and also in view of the fact that the evidence led by the prosecution against the appellants is not only insufficient but unreliable and vague. It is dangerous to affirm the judgment of conviction of Special Judge against the appellants.

13. Mr. Rab, appearing for the appellants before me, submitted that the appellants who are Poddars of the Treasury not being public‑servants, cannot be tried by Special Judge and therefore, the learned Special Judge had no jurisdiction to try the present case. Section 5 of the Criminal Law Amendment Act of 1958 provides that the offences specified in the Schedule shall be triable exclusively by a Special Judge. Clause (h) of the Schedule to the said Act mentions offence under section 409 of the Penal Code as triable by the Special Judge when committed by any public servant as such or by any person acting jointly with or abeting or attempting to abet or acting in conspiracy with any public servant as such. Mr. Rab argues that the appellants pot being public‑servants, the Special Judge‑had no jurisdiction to try this case and also because they had not committed the offence if at all conjointly with any public servant. He has relied on two decisions in support of his contention. First one is the case of Modun reported in I L R 4 Calcutta 376, where the Poddar of the Bengal Bank which used to conduct the treasury business of the Government of Bengal was held not to be public servant. Second decision relied on by Mr. Rab is the case of Salimullah Khan v. The Crown ((1953) 6 D L R 527). In that case the learned Advocate appearing for the appellants contended that he was a cashier of the Central Co‑operative Bank at Jessore, and as such being a public‑servant could not be tried by Assistant Sessions Judge and should have been tried by a Special Judge under the Criminal Law Amendment Act. The learned Advocate tried to bring his client within clause 10 of section 21 of the Pakistan Penal Code. Dealing with the point, Ellis, Chief Justice having quoted 10th clause of section 21 of the Pakistan Penal Code observed as follows :‑ "We are unable to see that a cashier of a bank falls within the terms of this definition. It has been held authoritatively that a Poddar of the Bank of Bengal is not a public servant within the definition and it has also been held that a President of a Co‑operative Society is not such a public servant. We ourselves are unable to accept the argument that the appellant as the cashier of a Central Co‑operative Bank, is to be construed as a public servant within the definition in section 21 of the Penal Code." Although Chief Justice Ellis has not given reference to the Bengal Bank case it seems His Lordship was referring to the case reported in I L R 4 Calcutta 376 to which I have already referred to.

14. The learned Advocate, appearing for the State could not produce before me in spite of demand the letter of appoint ment either of appellant Majibar Rahman or of other appellants nor there is anything on record to show that the appellants were appointed by the Government and were public‑servants. On the contrary, it is found from evidence that the Assistant Poddars two of whom are appellants before me, gave security of Rs. 500 each to the Head Poddar and were engaged by him. As far as I have checked up the Treasury Rules I do not find anywhere any mention of the Poddars therein. On the contrary, S. R. II of the Treasury Rules of East Pakistan and the subsidiary rules made there under go to show that the treasurer is responsible for the handling of the money at a Treasury. It is the duty of the Collector to see that he furnishes sufficient security to protect Government interest against loss due to his negligence or fraud. From this it becomes clear that nobody other than the treasurer is responsible for handling of the money in the treasury at the first instance, thereafter the Treasury Officer is responsible for the affairs of the Treasury and ultimately the Collector, who is in over‑all charge of the Treasury in the district. The prosecution did not lead any evidence to show that the appellants were public servants and I have already stated that the learned) Advocate for the State failed to produce anything before me to show that the appellants are public servant. Nor from the reading of section 21 of the Penal Code I feel inclined to hold, that the Poddars of Treasury are public servants.

15. In the result, therefore, the contention of Mr. Rab that the appellants not being public servants the learned Special Judge had no jurisdiction to try them succeeds.

16. Mr. Aminul Islam, learned Advocate for the State has. frankly conceded that in absence of any evidence on record he cannot maintain that the Poddars of Treasury are public servants. He cannot controvert the proposition taken up by Mr. Rab on this point.

17. In the result, therefore, these appeals succeed both on merits and in law. The order of conviction and sentence passed by the learned Special Judge against the appellants in Special Case No. 28 of 1960 (Jessore) is hereby set aside and they are acquitted of the charge under section 409/34 of the Pakistan Penal Code. They will be discharged from their bail bonds. S. B./A. H. Appeals accepted.