P L D 1955 Dacca 77 (PLP)

ISPAHANI, J.

‑This is the appeal of the Superintendent and Remembrancer of Legal Affairs to the Government of East Bengal under section 417 of the Code of Criminal Procedure and section 9 (1) of Act XIX of 1948. The accused persons namely Mazharul Huq and Abdul Baset Khan were placed on trial before Mr. E. Rahman, Special Judge of Dacca, appointed under section 3 (1) of the Pakistan Criminal Law Amendment Act, 1948 (Act No. XIX of 1948) to answer various charges. The charges against Mazharul Huq were under sections 409, 465, 477(A) and 120B of the P. P. C. and those against Abdul Baset Khan were under sections 409/114 and 120B. By his judgment, dated the 26th April, 1952, he acquitted both the accused persons of‑a ‑the charges framed against them. The accused Mazbarul Huq was an Assistant Sub- Accounts Clerk and the accused Abdul Baset Khan was an Assistant Treasurer in the Dacca Head Post Office. It is the prosecution case that these two accused along with Suresh Chandra Dutta, Head Sub‑Accounts Clerk. Hari Das Seal, K. C. Chatterjee and A. C. Ghosh, Deputy Post Masters, defalcated money of the Dacca Head Post Office to the extent of Rs. 54,

825. Their modus oper‑andi was to change the carbon copy of the S.O. slip and to replace the cash bags meant for the Sub and Branch Post Offices by empty bags. In the Head Post Office the amount was shown on transit for some days in the S.O. summary and then the remittance was ticked off from the transit column of the S. O. summary showing that the remittance was acknowledged' by the Sub or Branch Post Office concerned, when in fact no acknowledgment from Sub or Branch Post Office was received. The entries were initialled by the Deputy Post Masters without checking up. On the date of the removal of the amount from the transit column of the S.O. summary, the total balances of the S.O. summary were inflated so that no shortage was found in the preparation of the Head Office Cash Accounts. Mazharul Huq wrote the S.O. summary and struck the total every day. The Deputy Post Masters did not check the account books for three years. The monthly accounts were submitted to the accounts office without checking up.. In this way, it is alleged, defalcation of the money of the Dacca Head Post Office continued for three years. These were detected during the audit inspection in 1947. Abdul Bari, Deputy Post Master, held a Departmental enquiry in the matter. The Head Post Master reported the matter to the Police by lodging a First Information Report at Sutrapur Police Station on the 15th of March, 1947. Mr. Moslehuddin, Deputy Superintendent of Police, Pakistan Special Police Establishment at Dacca, then took up the investigation of the case. The Investigating Officer seized all the relevant papers from the Head Post Office and took the specimen writing and signatures of the two accused and sent them to the handwriting expert, A. Sayed, for comparison and report. The case against the accused persons was confined to three items of defalcation by them.‑ (1) Rs. 500 on 2nd August, 1945. (2) Rs. 300 on 27th August, 1945. (3) Rs. 500 on 19th September, 1945. The first charge against the accused Mazharul Huq was that being employed as a public servant, he committed criminal breach of trust in respect of the above three items on the dates noted against each and thereby committed an offence punishable under section 409 of the Penal Code. The second charge against him was that he forged carbon copies of S.O. slips, dated the 2nd August, 1945 (Exh. 12). 27th August, 1945 (Exh. 22), and 19th September, 1945 (Exh. 33), and thereby committed an offence punishable under section

465. The third charge against him was that in order to cover his acts of criminal breach of trust, he made falsification of accounts in the S.O. summaries, dated the 8th August, 1945, 31st August, 1945 and 24th September; 1945 and thereby committed an offence punishable under section 477A, It is stated that he made a false entry of Rs. 500 as sent to Kanchanpur Sub‑Office on the 3rd August, 1945, and the date 2nd August, 1945, was altered to the 3rd August, 1945 in the transit column of the S.O. summary, dated the 6th August, 1945. He also inflated the total in the statement of balance attached to the cash balance reports for July, August and September, 1945. It is also stated that he made falsifications in the S.O. daily accounts of Kanchanpur, dated .the 6th August, 1945, and the 21st September, 1945. The fourth charge against him was that he committed the above offences in persuance of a criminal conspiracy between himself and Abdul Baset Khan, Suresh Chandra Dutta, Head Accounts Clerk and A. C. Ghosh, K. C. Chatter Jee and Hari Das Seal, Deputy Post Masters, who acted conjointly and in concert with one another for the commission of the offence and thereby committed an offence under section 120B. The charges against Abdul Baser Khan, were that he abetted accused Mazharul Huq in committing criminal breach of trust as a public servant and that he committed criminal conspiracy along with accused Mazn:,rul Huq, Suresh Chandra Dutta, A. C. Ghosh, K. C. Chatterjee and Hari Das Seal and thereby committed offences under sections 409/114 and 120B of the P. P. C. On receipt of the report of the handwriting expert and after completion of investigation, Mr. Mosleuddin, Deputy Superintendent of Police, Pakistan Special Police Establish ment, submitted a charge sheet against these two accused only on the 26th of June, 1951, as the other accused had by then left for the Indian Union. Both the accused persons pleaded not guilty, and. raised various objections, namely, that the, prosecution was bad in law for want of a valid sanction and on the ground of defect in the charges and the jurisdiction of the Court to try the case. The learned‑Special judge found in favour of the accused persons and acquitted them of all the charges framed against them. Hence, this appeal by the Superintendent and Re membrancer of Legal Affairs of East Bengal. Mr. A. K. Fazlul Huq, the learned Advocate‑General, has appeared on behalf of the Crown and Mr. D. C. Roy on behalf of the accused Mazharul Huq and Mr. Mesbahuddin and Mr. S. C. Bose on behalf of the accused Abdul Baset Khan. The learned Advocate‑General attacked the judgment of the learned Special judge on various grounds. He con tended that the learned Special judge erred in holding that P. W. 1, Syed Amanat Hossain, Police Inspector, was not competent to prove the sanctions (Exhs. 1 and 2). He argued that the learned Special judge ought to have held that even if P. W. 1, Syed Amanant Hossain had not seen Mr. S. N. Bakar write or sign, he was competent to prove his signature by reason of his having come to be acquainted in the ordinary course of business with Mr. S. N. Bakar's signature in official correspondence. He, therefore, submitted that in any event the learned Special judge ougt to have held that the sanctions had been legally proved under section 47 of the Evidence Act. He contended further that the learned Special judge ought to have held that even if Exh. 6, that is, the sanction accorded by the Post Master, General Post Office, Dacca, was not acceptable in evidence or was invalid, its invalidity or inacceptability did not affect the merits of the case inasmuch as no sanction under section 197 of the Code of Criminal Procedure was necessary in the case of the present accused persons. Finally, he argued that there was sufficient evidence on record to prove that the accused Mazharul Hug was guilty of the charge of forgery and the learned Special judge had erred in not con victing him under that section. So far as accused Abdul Baset Khan was concerned, the learned Advocate‑General conceded that there were not enough materials on record to argue the case against him and consequently the case against him was abandoned. He also did not press before us the charges under sections 409 and 477‑A against accused Mazharul Huq. Exhibit 1 is the sanction order for prosecution of Maznarul Hug under various sections of the P: P. C. and Exh. 2 is a similar order for prosecution of Abdul Baset Khan and Sayeduddin Khan. Both the sanctions were accorded by the Government of Pakistan, Ministry of the Interior, Home Division, and are dated the 18th of November, 1950 and signed by Mr. S. N. Bakar, Deputy Secretary to the Govern ment of Pakistan. The learned Special judge held that P. W. 1, Syed Amanant Hossain, Police Inspector, was not competent to prove them inasmuch as he did not know who typed the sanctions, had never worked under Mr. S. N. Bakar and had not seen. Mr. S. N. Bakar write and sign. According to the witness he had seen Mr. S. N. Bakar's signature in official correspondence. This, in the judge's opinion, was not sufficient to prove the sanctions under section 47 of the Evidence Act. He, accordingly, found that the sanctions had not been legally proved. Section 47 of the Evidence Act is as follows : "When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact". In the present case the witness Syed Amanant Hossain deposed that the sanctions were received from the Ministry of Interior, Home Division, in the ordinary course of business and they bear the signature of Mr. S. N. Bakar, Deputy Secretary. Under section 47 of the Evidence Act a person proving a document need not. be personally acquainted with the writing or signature o A the writer of the document. It is enough if he becomes acquainted with them in the ordinary course of business. Syed Amanant Hossain had seen the signature of Mr. S. N. Bakar in official correspondence iii the ordinary course of business and as such was a competent witness to prove the same. Mr. D. C. Roy, however, tried to argue that under sub section (1) of section 11 of Act XIX of 1948, the Central Government may frame Rules to carry out the purposes of this Act and as no rules had been framed authorising Mr. S. N. Bakar to exercise the power to sanction prosecutions on behalf of the Central Government in respect of various grades of public servants provided in clause (a) of sub section (2) of that section, Mr. S. N. Bakar, was not com petent to accord the sanctions. It is not the prosecution case that Mr. S. N. Bakar has accorded the sanctions. The Government of Pakistan irseh accorded the sanctions through Mr. S. N. Bakar, tree Deputy Secretary. Thus, it is amply clear that the learned Special judge erred in holding that the sanctions (Exhs, 1 and 2) had not been legally proved, and this was the substantial ground on which the accused persons were found not guilty. We, accordingly, find that Exhs. 1 and 2 have been legally proved and the reasons given by the learned Special Judge cannot be accepted. The learned Special Judge also found that Exh. 6, a sanction under section 197 of the Code of Criminal Procedure , accorded by the Post Master, General Post Office, Dacca, for the prosecution of the accused persons was not a valid sanction in law inasmuch as it was a typed copy and did not bear any date and was filed in Court at a late stage. Mr. D. C. Roy, appearing for accused Mazharul Hug, con ceded that this sanction was not 'necessary for the purpose of this case and consequently it does not call for consideration in coming to any decision. Coming now to the merits of the case against accused Mazharul Hug under section 465 of the Penal Code, the learned Special judge round that this accused had committed an offence under that section but did not convict him for want of a valid sanction namely, Exh.

1. He, accordingly, acquitted him of the charge under that section and the other sections. We have been taken through the entire recorded evidence in the case, particularly of P. W. 2, A. Bari, Deputy Post Master, who is the main witness in the case. The charge against Mazharul Hug under section 465 is that he forged the carbon copies of the S. O. slips, dated the 2nd August, 1945 (Exh. 12), 27th August, 1945 (Exh. 22), and 19th September. 1945 (Exh. 33). It is the prosecution case that these are false documents written by Mazharul Hug with the sole purpose and intention of defalcating the money of the General Post Office, Dacca. Exh. 7 is the pencil copy of the S. O. slip, dated the 2nd August, 1945 Exh, 21 is a similar copy of the S. O. slip, dated the 27th August, 1945 and Exh. 32 is the pencil copy of the S. O. slip, dated the 19th September, 1945. These documents were sent to the handwriting expert P. W. 6 A. Sayeed, with specimen writing and signatures of Mazharul Hug and in his opinion the writing and signatures in the carbon copies of the S. O. slips are those of Mazharul Hug. It is also the evidence of P. W. 2, A. Bari, Deputy Pos; Master, that he knows that writing and signature of this accused and writing and signatures in the pencil and carbon copies are in the handwriting of Mazharul Huq. The carbon copies are different from the pencil copies inasmuch as in the pencil copies advice of remittances was shown while in the carbon copies empty cash bags were shown and the initials "E.C.B." in the carbon copies meaning empty cash bag have been proved by the handwriting expert and the Deputy Post Master to be in the handwriting of this accused. Mr. D. C. Roy, appearing for this accused, has attacked the evidence for the prosecution on the ground that the evidence of a handwriting expert is of the weakest kind and no reliance should be placed on the same. He has also submitted that P. W. 2, A. Bari, the Deputy Post Master, was not competent to prove the writing and signature of this accused because he did not work in the Dacca Head Office from 1940 to 1948 as admitted by him. The alleged forgeries in question being of 1945, it is submitted, cannot be proved by this witness when he was not attached to the Head Office at Dacca and this accused never worked under him. It is true that the evidence of a handwriting expert is usually of a weak kind and it is unsafe to base a conviction thereon) In the present case; however, it is corroborated by the evidence of the Deputy Post Master who, in our opinion, is a competent and a truthful witness as will appear from other facts and circumstances of the case. What the Deputy Post Master stated in cross‑examination is as follows : "I came to the Dacca Head Office as Deputy Post Master in October, 1948. I was a clerk in that office from 1929 to 1940. During the latter period of those years, I was in the accounts section. I worked in the accounts bill section for 8 or 9 years then. I did not work in Dacca Head Office after 1949 and before 1948. Mazharul Huq never worked under me. The accounts bill section has no connection with remittances to Sub‑Offices. None of the exhibits proved by me was written and signed by Mazharul Huq in my presence. I do not remember if I saw Mazharul Huq as a sorting clerk in 1940. I cannot say without seeing records what works Mazharul Huq did during 1929 to 1940. As far as I remember, Mazharul Huq joined Dacca Head Office as clerk in 1935 or 1936". The learned Special judge found as a fact that at any rate from 1936 to 1940 this witness and Mazharul Huq both worked in the Dacca Head Post Office and during that period the witness must have seen the writing and signature of Mazharul Huq in official papers, and he might have come across similar papers after coming back to the Dacca Head Office again in 1948 and consequently it was possible for him to know his handwriting and signature. On this basis he accepted the evidence of A. Bari and held on the merits that the charge of forgery had been proved against this accused though he could not be convicted for want of a valid sanction. We agree with the reasons given by the learned Special Judge on the merits. We have not the least doubt that A. Bari became acquainted with the writing and signature of Mazharul Huq while both of them worked at the Dacca Head Office from 1936 to 1940 What is still more important is that it was the normal duty of Mazharul Huq to prepare S. O. slips of the Sub‑Offices, and in the course of such duty here prepared the relevant S. O. slips and the carbon copies. ` Faced with this difficulty, Mr. Roy raised a new point before us that it had not been established that Mazharul Huq was the First Assistant Sub‑Accounts Clerk and consequently Exh. 3, the duty card proved in the case, did not apply to him. In Exh. 3 one of the duties of the First Assistant Sub‑Accounts Clerk is to prepare Sub‑Office slips of 31 Sub‑Offices and to enter the balance of the Sub‑Offices in these slips This point was never raised before the learned Special judge nor was it stated by this accused when he was examined under section 342 of the Code of Criminal Procedure. It is, therefore, idle for Mr. Roy to urge this point at this late stage. The case proceeded on the footing that the S. O. slips, Exhibits 7, 21 and 32 were written by him in the normal course of his duties. We, therefore, dismiss this argument as being without any foundation. Mr. Roy also argued that some other person or persons may have written the S. O. slips and the carbon copies and Mazharul Huq cannot be geld responsible for the same. This case was never put to any witness, in particular to P. W. 2, A. Bari, nor did Mazharul Huq make any statement to this effect when examined under section 342 of the Code of Criminal Procedure. It seems to us that when confronted with the duty card Exh. 3, Mr Roy has put forward these arguments which are without any substance. There can be no doubt on the evidence on the record that the carbon copies Exhs. 13, 22 and 33 i1‑: the handwriting and bearing the signature of Mazharul Huq are materially different from the corresponding S. O. slips, Exhs. 7, 21 and

32. In the S. O. slips advice of remittances are shown while in the carbon copies empty cash bags are shown. Thus the charge under section 465 against him has been established beyond , any doubt. The learned Advocate‑General while arguing the case against Mazharul Huq under section 465 of the Code inci dentally mentioned that Mazharul Huq must have committed the forgeries in conspiracy with Abdul Baset Khan. and the absent accused and for their benefit. He, however, did not elaborate the point and from the way he argued the same it was clear that he did not wish to press the charge of conspiracy against Mazharul Huq. The appeal succeeds in part. We set aside the acquittal of Mazharul Huq under section 465 of the Code and convict him thereunder. From the order‑sheet of the lower Court it appears that he was on bail all along. In these circum stances, we sentence him to rigorous imprisonment for one year. The order of acquittal passed by the learned Special judge as regards the other charges will stand. Mazharul Huq will surrender to his bail bond and serve out the sentence now imposed on him. As the learned Advocate‑General did not press the case against Abdul Baset Khan the acquittal order will stand and he is ordered to be set at liberty forthwith. ELLIS, A. C. J.‑I agree. A. H. Appeal partly allowed.