1986 PLP r (PCRLJ)

Mrs. Salima Nasiruddin for the State. Dates of hearing: 9th and 10th September, 1985. ABDUR REHMAN, J.‑‑This appeal is directed against the judgment of Mr. Justice (Retd.) Z.C. Valiani, Presiding Officer Special Court of Sind (Banks) at Karachi, whereby the accused was convicted and sentenced under section 477‑A, P.P.C. to R.I. for five years and a fine of Rs.8.00,000 and in default of payment of fine he was sentenced to undergo further R.1. for 5 years. By a separate order on a subsequent application this substantive sentence was ordered to run concurrently with another sentence of 12 years' R.1. passed on the appellant by a Military Court.

2. The accused was Manager of Bohrapir Branch, U.B.L., Karachi, in 1976. On 21‑8‑1976 in his capacity as Manager of the said Branch, he issued Inter‑Bank Credit Advice No. 2098764 for Rs.4,00,000 on Frere Street Branch, United Bank Limited, Karachi' and personally took the same for collection of the said amount. The entry pertaining the receipt of Rs.4,00,000 was not entered into the books of account of Bohrapir Branch after collection of the proceeds of the said I.B.C.A. On enquiry by his subordinates the accused informed them that he had destroyed the said I.B.C.A. but this was not a fact as the original I.B.C.A. and a receipt of having taken cash of Rs.4,00,000 were available in the Frere Street Branch of United Bank Limited. The alleged fraud and misappropriation came to light during an internal audit conducted by Regional Inspection Division. Consequently, F.I.R. was lodged by Mr. A.B.S. Jafferi the then Manager, Bohrapir Branch of United Bank Limited, Karachi with F.I.R. on 11‑6‑1979. After a haphazard scanty and incomplete investigation the accused was sent up before the Special Court of Sind (Banks) at Karachi.

3. A charge was framed against the accused under section 409/477‑A of P.P.C. The ingredients of section 409, P.P.C. (criminal breach of trust by public servant or by banker etc.) were given in the charge but the facts given in the charge were not enough to cover the ingredients of section 477‑A, P.P.C. (falsification of accounts). It appears that section 477‑A of the P.P.C, was simply inserted in the charge to read with section 409, P.P.C. This charge was framed by Additional City and S.D.M. Harbour and was adopted by the Banking Court without any amendment.

4. This charge in short, may fulfil the ingredients of section 409, P.P.C. of which the appellant was acquitted but it definitely does not fully set out the ingredients of section 477‑A, P.P.C. which reads as under:‑ "S. 477--A. Falsification of accounts.‑‑ Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant wilfully, and with intent t defraud, destroys, alters, mutilates or falsifies any book, paper writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud makes or abets the making of any false entry in or, omits or alters or abets the omission or alteration of any material particular from or in, any such book, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years or with fine or with both. Explanation.‑‑ It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the subject of the fraud, on any particular day on which the offence was committed."

5. It would, therefore, appear that the accused who was convicted under section 477‑A only, after being acquitted of the charge under section 409, P.P.C. was not given an opportunity to meet with the allegations of a charge under section 477 A, P.P.C. This in itself is sufficient to convince the Court that, the accused had no opportunity of defending himself against the charge of falsification of accounts and there was manifest danger of miscarriage of justice. Reference in this connection may be made to A I R 1958 All. 225 where the charge was only for a substantive offence, conviction for the offence read with section 149, P.P.C. was held to be unjustified when the accused had no opportunity of defending himself against the charge of constructive liability and there was manifest danger of miscarriage of justice.

6. Apart from that the receipt Exh. "2/B" shows that Rs.4,00,000 were paid to someone who had signed it. But the Cashier who made the payment has not been examined so as to depose who was the person who had signed this receipt and to whom he had made the payment. Even the books of accounts of Frere Road and Bohrapir Branches were not produced to show that this amount was actually debited from those books of former Branch and not entered in those of the latter Branch and was disbursed to any person. It was not correct for the Court to have come to the conclusion that the amount was actually debited from the books of Frere Road Branch or not entered in the books of Bohrapir Branch and disbursed to someone when there b was no evidence to that extent of the Cashier or of the entries of accounts books which could have been treated as evidence under the Bankers' Books Evidence Act. It was not possible for the Court to have given a finding on the basis of the receipt Exh. "2/B" alone that an amount of 8.4,00,000 has actually gone out from the Frere Road Branch on account of the I.B.C.A. signed and taken with himself by the accused and which he did not get cancelled. It was the duty of the prosecution to have examined not only the Cashier or the person, who had made this payment but also to have examined the Manager of Frere Branch as well as other officers who were connected with the said transaction.

7. No doubt P.Ws. Haroon Yousuf and Shakeel Muhammad Khan have made statements which implicate the accused in respect of omission to cancel I.B C.A. There is also no doubt that the accused who was not represented in the lower Court by an Advocate had cross‑examined these witnesses on this as well as other material points on which the have deposed against him. But it was not correct to treat the statements of Haroon and Shakeel as proof of all the ingredients of section 477‑A which could have been proved by better documentary evidence and by statements of officials who were in a position to give primary evidence, specially when such evidence was available.

8. We, therefore, feel that gross injustice has been done to the accused by convicting him under section 477‑A, P.P.C. without framing a proper charge thereunder and without bringing on record the necessary documentary as well as oral evidence which was the primary evidence in the case. We, therefore, set aside the conviction and sentence passed upon the accused and remand the case for re‑trial. We may also point out that according, to section 65, P.P. C. sentence in default of fine cannot exceed 1/4 of the maximum sentence provided for the offence. This should be kept in view by the Special Court while trying the case again. M. Y. H. Case remanded