1976 P Cr (PLP)

The appellant Asim Farooqui was tried by the Special Judge‑cum -Inquiry Officer, Hyderabad on charges under section 409, P. P. C. read with sections 5 (2) of the Prevention of Corruption Act, 420/468/477‑A, P. P. C. and on being found guilty of the said offence the appellant was by a judgment dated 28‑6‑1972 convicted and sentenced to varying terms of imprisonment to which fine was added. Since the terms of imprisonment were ordered to run consecutively the total sentence imposed on. the appellant was R. I. for 2 years and a fine of Re.

500. Alongwith the appellant four other persons namely, Moula Bux. Nizamuddin, Badar Ahmad and Abdul Salam were also tried and while the case against Abdul Salam abated on account of his death the remaining three accused were acquitted.

2. The appellant Asim Farooqui has filed an appeal through Mr. Azizullah Shaikh who has represented him before me and the State was represented before me by the Assistant Advocate‑General.

3. Briefly stated the facts of the prosecution case are that the appellant was a Nakedar of Hyderabad Municipality and was posted at Hyderabad Railway Station for collection of octroi charges. One Ibrahim who deals in sports goods received a consignment of goods from Sialkot and the railway receipt bearing No. 785957 was handed over by the said Ibrahim to acquitted Badar who is a clearing agent and is also referred to in the evidence as Commission Agent. The goods were cleared on the 4th of March 1368, and the total octroi payable on the goods was 37 paisas. The amount was duly collected by the appellant from acquitted accused Badar and a receipt bearing No. 100 from Book No. 886 was issued under the signatures of appellant Asim Farooqui. On 9‑3‑19b8 Messrs Bata Shoe Company of Hyderabad also received a consignment of shoes from up country and the railway receipt bearing No. 500631 was handed over by accused Abdul Salam (dead) to accused Badar for clearing the goods. The octroi charges in respect of this consignment amounted to Rs. 526.37. It is then the prosecution case that the original receipt in the name of Ibrahim dated 4‑3‑1968 was converted as to show the name of the consignee as the Manager of Bata Company ; and the amount of octroi charges to be Rs. 526.37, the amount payable by Bata Shoe Company ; and the date for payment of octroi charges was also altered from 4‑3‑1368 to 9‑3‑1968. Such mutilated receipt was given by acquitted accused Badar to M/s. Bata Shoe Company showing that an amount of Rs. 526.37 had been paid as octroi charges on the consignment of shoes. The Municipal Authorities on a checking of the Railway records discovered that octroi charges payable on account of the consignment in favour of Bata Shoe Company bad not been deposited and for such reason an Octroi Inspector went to the Manager of Bata Shoe Company who produced the receipt for Rs. 526.37 and on comparison of the receipt with the duplicate counterfoil in the receipt hook of the Municipal Committee it was found that the receipt given to M/s. Bata Shot Company was a copy of the receipt originally given to Ibrahim in regard to payment of 37 paisas which had been altered to represent the receipt given to Bata Shoe Company. On such facts coming to light an enquiry was held by three Octroi Inspectors of Hyderabad Municipality and they submitted a report to 'their Superior Officer on 19‑3‑1968. In this report it was stated that acquitted accused Badar was responsible for this forgery. of the receipt and further that Badar had admitted before the Octroi Inspectors to have forged the said receipt and it was also disclosed in the said report that Ibrahim whose goods were cleared on the basis of this receipt had not been given this receipt by acquitted accused Badar. The Nekedar‑cum‑Clerk at Station Road Octroi Post, Hyderabad, was directed to lodge a report which he accordingly did before the Circle Officer of Anti‑Corruption Establishment and the same was investigated into by the Anti‑Corruption Officer and after obtaining sanction for prosecution the appellant Asim Farooqui along with four co‑accused was sent up to stand his trial which has resulted in his conviction and sentence while the co‑accused have been acquitted.

4. At the trial the prosecution examined complainant Manzoor Ali who had lodged the report and Ashraf Shah, a Naka Munshi for the purpose of proving the two documents in this case namely, the genuine receipt fin the duplicate record of the Hyderabad Municipality and the forged receipt produced by M/s. Bata Shoe Company. These witnesses also described the procedure that was current in the matter of collection of octroi. The prosecution also examined Abdul Ghafoor, an Octroi Inspector who had carried out a departmental enquiry into the case. Besides these witnesses the prosecution examined Ibrahim, the consignee of sports goods, in whose name the original receipt for 37 paisas had been issued. The remaining witnesses were two camel cart drivers Khalil and Abdul Sattar who had removed the goods of Bata Shoe Company from the Railway Station to the premises of Bata Shoe Company and Investigating Officer Mr. Muhammad Shafi. The appellant examined no witnesses in his defence but in his statement under section 342, Cr. P. C. he stated that he bad issued a receipt for 37 paisas in favour of Ibrahim through co‑accused Badar and had delivered the receipt to him. He further stated that the amount of Re. 326.37 as shown in the receipt produced by the Bata Shoe Company was an inter polation which he had not done. He further went on to say that the original receipt issued by him in favour of Ibrahim had been mutilated or tampered by some other person and for such mutilation he was not responsible. While it is not necessary to examine the statements made by accused Moulabux and Nizamuddin, against whom the Special Judge found the case to be one of no evidence, it is necessary to examine the statement made by Badar, co‑accused who is the Commission Agent. Badar had stated in his statement that he had paid a sum of Rs. 526.37 to acquitted accused Moulabux and in regard to the receipt for 37 paisas in favour of Ibrahim he stated that although au amount of 37 paisas had been collected by appellant Asim Farooqui the latter had not given him a receipt. Badar however, went on to state that he has not tampered with the receipt and that he had collected the goods on payment of octroi. He pleaded that he is illiterate and for such reason could not read what was stated in the receipt that was given to him.

5. It would appear that at the initial stages the appellant was not at ail suspected. As stated above three Octroi Inspectors of Hyderabad Municipality carried out a sort of departmental enquiry into this case of forgery and fraud and submitted a report which has been produced on record as Exh. 13 by the prosecution witness Abdul Ghafoor. In this report which was made on the 19th March, 1968, the name of the appellant does not appear and the finding of the three Octroi Inspectors is that the Manager Bata Shoe Company and acquitted accused Badur were responsible for this fraud and forgery. It is also stated in the report that Badaru had admitted before them that he had deliberately kept away the receipt of Ibrahim and had later on given the same to the Manager of Bata shoe Company, after tamperaring with the receipt. Subsequently, the Taxation Officer of Hydrabad Municipal Committee also submitted a report to the Chief officer of the same Municipality on the 2?rd of April, 1968, in which report also the name of appellant Asim Farooqui does not appear and it is clearly stated that the importer viz. The Bata Shoe company and the agent viz. Badar were responsible for the forgery and fraud. In fact penal action was also contemplated against Bata Shoe Company but subsequently the Municipal Authorities considered that the case could be better dealt with by a prosecution, rather than statutory composition. The matter was thereafter referred to the Anti‑Corruption Establishment for registration of a case and investigation. It would also appear that the case initially set up by the prosecution was to the effect that the appellant had acted in conspiracy with Abdul Salam, the representative of Bata Shoe Company and Badar the clearing agent. Although there was no specific charge of conspiracy but to my mind it is very clear that the prosecution of Badar and Abdul Salam along with the appellant is prima facie indicative of the fact that the prosecution thought that these persons had acted in conspiracy. However, the fact is that while Abdul Salam died during the proceedings Badru has been acquitted.

6. There is no direct evidence against the appellant in respect of his having received an amount of Re. 526.37 payable or paid by Bata Shoe Company and all that is stated comes in the statement of acquitted accused Badar who too does not implicate the appellant but has gone to state that he had paid this amount of Rs. 526.37 to acquitted accused Moula Bux. Such being the state of evidence the only circumstance against the appellant was the existence of two receipts one the original, and the second the duplicate, showing varying figures and names of consignees and dates. While no expert has been examined by the prosecution to show that the alterations made in the receipt issued in favour of Ibrahim were in the handwriting of the appellant, the latter has admitted that the receipt in favour of Ibrahim was indeed issued by him but the same was for 37 paisas only and further that this receipt has been altered or forged by someone else and he had nothing to do with the receipt after the same was passed on to Badru. On that point it would be worthwhile examining the evidence. Manzoor Ali the complainant has stated in his evidence that he could identify the handwriting on the duplicate receipt viz. the receipt in the records of the Municipality to be that of appellant Asim Farooqui but he went on to state that while the original receipt in the name of Ibrahim but produced by Bata Shoe Company, bore the signature of the appellant, he was unable to say if the appellant had written the same. On the same point Abdul Ghafoor Octroi Inspector has also stated that he could not say whether the addition of the figure "526" representing the amount payable by Bata Shoe Company in the original receipt had been made by the appellant. This witness had however, stated that the original receipt bore the signature of the appellant but he had not stated whether the altered figures or text in the same had been written by the appellant. In that context the evidence of Ibrahim, the consignee who had paid 37 paisas is also relevant, as he has stated that he had been demanding the Octroi receipt from acquitted accused Badru who had told him that be had left it somewhere and would bring it later, on. Ifs went on to state that he demanded the receipt from Badru once or twice but the latter made an excuse that the same was lying with him. It is significant that Ibrahim does not state that Badru had told him that. appellant Asim Farooqui had not given him the receipt. It would thus appear that the original case as came to light did not show any complicity of the appellant, there is also no evidence to show that alterations in the original receipt whether in figures or words were made by the appellant and no expert has been examined on that point. On such facts the Special Judge observed that since the appellant had admitted that his signatures appeared both on the original and the duplicate receipt, the burden was on him to show that some other person had tampered with the writing. This process of reasoning is indeed very interesting. There is no doubt that both the receipts bear the signature of Asim Farooqui but it cannot be overlooked that in the original receipt issued in favour of Ibrahim some alterations have been made. These alterations are not shown to be in the handwriting of the appellant and on the other hand the statement of Badru made before Ibrahim was to the effect that the receipt was lying with him. What is more that the three Octroi Inspectors and the Taxation Officer of Municipal Committee in their reports clearly fixed the responsibility on Badru on the basis of their enquiry and admission of Badru himself. The case therefore, does not appear to be free from doubt because the original receipt was in possession of Badru and even the probabilities of the case clearly show that Badru having paid the amount of 37 paisas for clearing the consignment of Ibrahim should be having the receipt in his possession. There is no finding of the Special Judge on the point of comparison of handwriting.

7. For all such reasons I find that the prosecution has failed to prove the guilt of the appellant and he is for such reason eminently entitled to acquittal. In the result I set aside the judgment of conviction and sentence that has been imposed on the appellant and allow this appeal. The appellant is on bail and he need not surrender.

8. Appeal allowed. Appeal allotted.