P L D 1962 Supreme Court 489 (PLP)

CORNELIUS, C. J.‑--Special leave was granted to Mir Ahmed appellant‑to appeal against a judgment of a learned Single Judge of the Dacca High Court confirming his conviction by a Special Judge on a charge of misappropriation of a sum of rupees three thousand which had been entrusted to him in his capacity as cashier in the office of the Superintendent of Police at Comilla. The grounds upon which leave was given were of a technical nature, namely (1) whether the trial of the accused was valid, after there had been a withdrawal of the case in the Court A of a Sub‑Divisional Officer, who discharged the accused, and (2) whether after such a withdrawal a fresh sanction for prosecution was necessary. We have heard interesting and learned argument on these questions, but it seems clear enough that the withdrawal of the case by the Court Inspector on the 24th August 1956 was made without authority in view of section 9, subsection (3) of the Criminal Law Amendment Act 1948, which lays down that no prosecution under that Act shall 'be withdrawn "except under the orders in writing of the appropriate Government". Admittedly, the action of the Court Inspector had not been so authorised. The fact of the withdrawal is however not without signi ficance in regard to the merits of the case. The offence of misappropriation was allegedly committed on the 15th July 1954, and it came to light, as the proved facts show, on the 24th July 1954. The case was put into Court (i.e., the Sub Divisional Officer) on the 21st September 1954, plainly with commendable speed. This is an important feature, in view of the observations made in the judgments of the Special Judge and the learned Single Judge to the effect that the Police Officers at Comilla at the time of the occurrence were unduly sympathetic towards the accused. The Superintendent of Police at the time was Mr. Mohsin who has given evidence as P. W. 4, and it was to him on the 24th July 1954 that Mir Ahmed confessed that there was a shortage of Rs. 3,000 in his cash box. At the same time, as appears from the evidence of Habibur Rahman, the then Head Clerk who was examined as P. W. 1, Mir Ahmed told the Superintendent of Police exactly the same story which he presented as his defence at his trial, which did not commence until more than six years later, viz., the 3rd November 1960. The accused pleaded that on the 16th July 1, 54, he had received a visit in his office room from his brother‑in‑law Abdul Halim and while the latter was there, he himself had been called away to the office of the Additional Superintendent of Police, Mr. Montazuddin Ahmed. He left the key of the cash box in the box itself by mistake. When he returned, Abdul Halim was still there, but shortly after he went away and some time later, when Mir Ahmed opened the box he found that a bundle of 30 hundred‑rupee notes had been removed. He realised it could only be Abdul Halim who had removed the money, and therefore he did not at once disclose the matter, but decided to make efforts to collect the money so as to make it good. It appears that since that time Abdul Halim has been absconding. Mir Ahmed was under orders of transfer, and was due to hand over his charge on the 24th July 1.954. It has been proved ‑ that on the 20th July 1954, he was asked to produce the cash box for physical verification, but he said it was in the Treasury, and it was not sent for. There is evidence too that on the 21st July 1954, he was again asked to produce the box, and again avoided it by the excuse that he had left the key at home. On the following two days he was absent from hid seat through illness. The next day, the S. P. himself asked for the box to be produced, and then Mir Ahmed first made the statement regarding the removal of the money, and then produced the box from which Rs. 3,000 was actually found missing. Presumably, the S. P. put pressure on Mir Ahmed to make good the money and it proved that at about 8 p.m. the same day, the accused went to his superiors, accompanied by his father‑in‑law, Abdul Wadud and some others and handed over 'a sum of Rs. 3,

000. He told Habibur Rahman, P. W. 1 that he had borrowed the money from Abdul Wadud and his other relatives. On the statement of Mir Ahmed, the S. P. ordered that a report should be entered against Abdul Halim and investigations were held, apparently in the absence of Abdul Halim. These ended in a final report that the case against Abdul Halim i.e., the explanation of the accused, was true. By the time, however, Mr. Mohsin had probably left Comilla as he was transferred away on the 1st August 1954. The case against Mir Ahmed was put in Court on the 21st September 1954 and as has been seen the withdrawal order was made on the 24th August 1956. It is to be noted with some regret that in the intervening period of two years no attempt had been made to go forward with the case, although sanction of the Government to the prosecution had been received on the 6th August 1955. The delay at first was due to there being no Special Judge and later to the failure to nominate the Special Judge to whom the case could be transferred. It seems sufficiently clear however that the learned Single Judge may' have misdirected himself in so far as he has characterised the attitude of Mr. Mohsin towards the accused as "sympathetic". Whether that be correct or otherwise, it was clearly not the reason for the filing of the application for withdrawal of the case. The learned Single Judge has commended Mr. Ali Bashir who succeeded Mr. Mohsin as S. P. for "not allowing the case to be shelved", but it seems that Mr. Ali Bashir was only posted at Comilla in October 1954, and that he left Comilla in the first week of April 1956. Therefore, while it may be true that Mr. Ali Bashir was responsible for having the final report in the case against Abdul Halim converted from a "true" report to a "false" report, the institution of the case against Mir Ahmed which took place on the 21st September 1954 could not have been ordered by him as he only joined Comilla in October 1954, nor could he have been instrumental in having the order of withdrawal set aside, since that took place in August 1956, after he had left Comilla. So far as we can make out from the records of the case which have been placed before us in full, there is nothing to indicate either undue leniency or undue severity towards the accused in the case on the part of his superiors in the Police establishment at Comilla. It was not to be expected that the superior officers would be inclined to take a lenient view of the loss of so large a sum of money as Rs. 3,000 from their funds and this becomes clear from the swift action taken to have the loss made good. But it is clear also, that the authorities took serious notice of Mir Ahmed's explanation, and had it investi gated formally. It is a factor in his favour that the investigation showed that his explanation was true. It is not necessary to suppose that this result was due wholly to the fact of Mir Ahmed having made good the loss through his own efforts. On the facts, the case is thus simple. The shortage was found in the cash box held by Mir Ahmed on the 24th July 1954. He was under orders of transfer and there can be no question but that when he was to hand over the charge of his office to his successor, he would have been required to account for the correct sum of money due according to the books. The Special Judge who convicted the appellant made a point of the fact that on the 15th July 1954 there had been a physical verification of the cash which had been found correct, and appears to have thought that the accused expected that there could be no further verification of the cash before he handed over his charge so that he could safely make away with the money, leaving his successor to make up the loss. It is not a view which commends itself to us, since it is clear that Mir Ahmed did continue to hold his office until the 24th July. The idea that, by any means in his exclusive power, he could have avoided giving a true account of the money which had been entrusted to him, before he was relieved of his duties as cashier, does not appear to us to be at all well‑founded. The explanation that the key was left by mistake in the box did not impress the Special Judge, but it is a natural enough mistake, and after all, Abdul Halim was a relation. Again, the Special Judge thought that as soon as the accused discovered the shortage on the 16th July 1954, he should have reported the matter to his superior officers and set them on the track of Abdul Halim, so that the money might have possibly been recovered immediately. The accused explained that he did not do so at once for fear of losing his position, but that explanation did not satisfy the Special Judge. The point appears to have been overlooked that, apart from the danger of losing his position; it was a question of honour as well to the accused, if possible, to conceal the misdeed of his relative and try to make good the, loss to Government. The decision to gain time may be fully explained in this way. It does not necessarily point to the misappro priation being by Mir Ahmed himself. The Special Judge then asked himself how the accused could have procured so large a sum as Rs. 3,000 within a day, and appears to have concluded that this money was in fact the same which he had himself removed from the cash box, and that the whole story of the removal by Abdul Halim was false. In arriving at this conclusion, the Special Judge ignored the evidence that the money came from the accused's father‑in‑law, who would naturally be interested to save not only the accused but also the accused's brother‑in‑law. The approach of the Special Judge appears to have been influenced greatly by his belief that the accused expected to be able to avoid another check of his cash after that of the 15th July, before he handed over charge, and thus be free of responsibility. The conduct he was attributed to the accused, namely that he removed the money on the 15th July, and only handed it over on the 24th July when he saw there was no escape, is only explicable on this hypothesis. If this hypothesis be accepted, then of course the story of the removal by Abdul Halim would appear to be a later invention. But, in our opinion, the hypothesis is untenable, and with it must fall the conclusion that the money which the accused produced was money which he had himself removed. In the High Court, the learned Single Judge accepted this finding, viz., that the accused restored the very money taken from the box, and that he himself had removed it, as a "finding of fact". Even as such, it was not binding on the appellate Court, but in our opinion, it was not a finding which could be sustained on the facts. The High Court judgment does not examine in detail the various grounds upon which the final conclusion of the Special Judge had been based. To the argument raised that the explanation given by the accused "is plausible, reasonable and acceptable in the facts and circumstances of the case", the learned Single Judge returned the reply that he could not accept this explanation, adding that the Special Judge too had, "rightly", not accepted the explanation. He emphasised the delay in disclosing the deficiency and the explanation for it to the superior Police Officers and declined to admit that it was due to Mir Ahmed's fear of losing his job. Finally, the learned Single Judge observed that he had "no doubt" in his mind that the appellant had removed the money. The case raises a familiar question namely, the question of the correct treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances. This matter received careful consideration by the Federal Court in the case of Safdar Ali v. The State ((1952) F C R 238= P L D 1953 F C 93) where it was held that the decision in such stases must not be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence, and if thereafter the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, this opinion reacts upon the whole case, and the accused is entitled to the benefit of such doubt, on the ground that the prosecution has not proved its case beyond reasonable doubt. Here, the charge was of misappropriation of the sum of Rs. 3,000 which was found short in the cash box kept by the accused. The mere absence of the money without more is not, in all cases, sufficient to establish misappropriation. The accused is under a duty of furnishing an explanation for the' shortfall since the custody is exclusively his, but cases are conceivable, e.g., of faulty accounting, or of lack of control in access to the safe‑deposit, where it would also be necessary to furnish something by way of proof of conversion to sustain a conviction. Here, the accused admitted that the money was actually missing, and at the same time put forward an expla nation for the disappearance of the money which was factual and circumstantial and which is shown to have received independent examination by the investigating agency of the Police in consequence of which it was believed. There was delay in making the disclosure, but in our opinion, the explanation offered for this was not necessarily unreasonable or unacceptable. It has not been considered by the Courts below from the view‑point of a man situated as was the accused. He had been negligent, and felt it his duty to make good the loss. The true culprit was a close relation of his, who may have fallen a victim to sudden temptation, and if time could be gained and the money made good, there would be no need for the public disgrace to himself and his family which must follow a Police prosecution. There are indications on the record to support his case that in the interval, he made an effort to collect the money. Naturally, it would not be until the persons he approached were satisfied that there was an actual shortage, that they would come forward to his assistance. This was assured when the cash‑box was opened on the 24th July 1954, and the authorities threatened severe action. In our opinion, this circumstance explains the swiftness with which the money was produced on the 24th July, as contrasted with the accused's failure to procure it during the previous three or four days from the same sources. When the matter is taken in that light, it seems to us that the explanation put forward by the accused and his conduct could not have been rejected out of hand in the manner appearing from the judgment of the learned Single Judge. There is no evidence of his having converted any part of the money, such as, for instance, that he had been seen spending sums of money beyond his visible means shortly before the discovery of the loss. Following the principles laid down in the case of Safdar Ali' cited above, we are of the view that when all the facts and circumstances of the case against Mir Ahmed are taken into account in particular his conduct, there is a reasonable possibility that the explanation which he put ,forward is true. This would naturally detract from the case of. misappropriation which the prosecution attempted to make out against him on the basis merely of the shortage. We accordingly allow this appeal and acquit the appellant. A.H. Appeal allowed.