1978K121 (PLP)

This is an application under section 417(3), Cr. P. C. for leave to appeal against acquittal of respondents Nos. 1 and 2 by the Third A. C. M., Karachi in respect of offence under section 408/34, P. P. C. Since the respondent in this case had been sent up by the Police under a charge‑sheet and it was a state case and since no acquittal appeal has been preferred by the Slat ,1 this application by the private complainant has been allowed to be heard as a revision petition under section 439, Cr. P. C. against the said judgment of acquittal.

2. The facts in brief are that respondent No. 1 Mr. P. D. Bhadha was working as Head Cashier in the City Branch of Grindlays Bank and respondent No. 2 Feroze S. Divecha was working as the receiving cashier. The Bank received a complaint from their customer Messrs Macdonald Layton Costain Limited on 30th November, 1972 that cash deposits paid in their account on 6th and 13th November, 1972 amounting to Rs. 15,411.72 and Rs. 3,912.80 respectively had not been shown in the bank statement. About the same time a similar complaint was also received from another customer Messrs Asian Food Industries Limited that an amount of Rs. 30,000 deposited by them in cash in their account on 28th November, 1972 was omitted from their statement of account. These customers had sent photocopies of counterfoils of the paying‑in‑slips. They bore the initials of Mr. Divecha as the receiving cashier. The Bank Management appointed a Committee to enquire into the matter. It was found that 55 such deposits amounting to Rs. 3,20,000 in respect of 54 accounts i.e. 22 current accounts and 32 savings accounts had been embezzled and although the paying‑in‑slips had been duly signed in token of the receipt of cash deposits the same had not been entered in the account statements for the day and the cash had been misappropriated. The missing paying‑in‑slips were recovered by the Enquiry Officer from the custody of the Head Cashier Mr. P. D. Bhadha. The customers were given credit for these amounts by the Bank. The Head Cashier offered to compensate the Bank for the loss incurred on account of all these defalcations. Mr. D. P. Singha, the Enquiry Officer, however, sent a written report regarding the case to the Police. After usual investigation both the respondents were sent up to face this trial.

3. The trial Court recorded the testimony of five witnesses including the Investigating Officer and closed the case. It has transpired during the arguments that although there was clear documentary evidence available in the case the same bad not been properly exhibited. The 36 cash vouchers had been exhibited together in a bundle and no attempt was made to examine or compare the signatures of the receiving cashier or the Head Cashier on such vouchers. The admitted signatures of the respondents were not exhibited for comparison. The opinion of the handwriting expert had not been obtained nor was any handwriting expert examined. In the examination of the respondents under section 342, Cr. P. C. each voucher and the account statement showing non‑inclusion of that voucher were not put to the respondent, nor were they asked regarding their signatures on the paying‑in‑slips. The examination of respondent Feroze Divecha shows a general question having been put in respect of the misappropriation of the whole amount of Rs. 32,0131.61 and the next question that has been put is "why the .P.Ws. had deposed against him?" No circumstances appearing in evidence either oral or documentary were put to the respondents nor were they called upon to explain each such circumstance. It is thus an admitted fact that the Officer Incharge of the prosecution did not present the case in a proper manner and the trial Court also did not make efforts to bring essential facts on record for doing substantial justice.

4. Ordinarily it is the practice of the High Court not to interfere in l revision with orders of acquittal. There is, however, no doubt that the High Court can interfere in exceptional and proper cases. This is not the case where a vindictive complainant desires to persist in some charge which', he has failed to substantiate on enquiry or trial. Here is a case of Bank in which the members of the public deposit their money for safety. If the deposits of the customers are misappropriated and not accounted for in the bank records the public is bound to lose confidence in the banking system and the economy of the country is bound to suffer a setback. There can, therefore, be no doubt that this trial has resulted in failure of justice. The setting aside of the acquittal and the proper trial and appraisal of evidence would, therefore, be necessary in this case in the interests of public justice.

5. The order of acquittal is accordingly set aside and a re‑trial is ordered. The case may be remanded for being heard afresh and the accused/respondents may be examined in a proper manner enabling them to explain each item of evidence appearing against them and they should be confronted with the cash vouchers individually and the signatures or initials appearing on such vouchers. The petition is accordingly allowed. s. A. lI. Retrial ordered.