1989 P Cr (PLP)

AHED ALI U. QURESHI, J.‑‑ This appeal is directed against the judgment of learned Presiding Officer, Special Court (Offences in Banks), Karachi, dated 6‑2‑1988, whereby he convicted the appellant under section 408, P.P.C., and sentenced him to imprisonment till rising of the Court, and to pay fine of Rs.7,00,000 or in default of payment whereof to undergo R.I. for 12 months.

2. The brief facts of the prosecution case are, that in the years 1982‑84, the appellant was posted as Agricultural Credit Officer in the U.B.L., Matiari Branch. During this period he recovered Rs.47,256 from various borrowers but failed to deposit the said amount in the bank though he credited the amounts so received in the ledger of accounts of borrowers. On 3‑3‑1985 P.W. Qamar Din Memon, after taking over charge as Manager, checked the account and record of the bank and found above‑mentioned discrepancy in the accounts. He contacted the concerned borrowers, who confirmed having repaid to the appellant the loan taken by them. When confronted with this position, the appellant gave in writing to Mr. Qamar Din admitting to have received the amount of repayment of loan from 17 different parties, whose names also he gave in the written confession; which he admitted to have misappropriated. The appellant subsequently reimbursed to the bank through five different vouchers a total amount of Rs.1,71,500, which he had embezzled. On 14‑7‑1985, P.W. Qamar Din lodged the complaint with the F.I.A, Police, which was recorded by Inspector Iqbal Ahmed Mughal. After usual investigation, the appellant was sent up under three separate challans arising out of the above complaint filed by the Manager Qamar Din. These cases were numbered as 23, 23/A and 23/B of 1986. This appeal pertains to the conviction of the appellant in Case No. 23 of 1986.

3. The appellant had pleaded not guilty to the charges under sections 477‑A and 408, P.P.C. In his statement under section 342, Cr.P.C. the appellant had admitted, that he was Agricultural Credit Officer in the Matiari Branch of U.B.L. and that in that position he used to deal with the agricultural loans and. also received the payment of the same: However, he has denied to have received the repayment of loans in question amounting to Rs.47,

256. He has admitted, that entries Exhs. 2/B‑1 to 2/B‑17 in the loan‑ledger were in his handwriting and bear his signatures. He has also admitted, that these entries show `Nil' balance against she loanees. He stated, that loanees had not paid the said amount to him. He denies to have made any oral confession before P.W. Qamar Din; but he admits to have given in writing Exhs.2/C‑1 and 2/C‑

2. However, he states, that he was compelled by the complainant to make these written admissions. He admits to have repaid to the bank Rs.1,71,500 through five credit vouchers which bear his signatures. He states, that these amounts were paid by his relations,

4. The prosecution in support of their case have examined complainant Qamar Din, Zahiruddin, Cashier Ghulam Nabi, Zonal Officer, Naimuddin Siddiqui, Manager, Gul Muhammad of Matiari Branch at the relevant time and Investigating Officers Iqbal Ahmed and Sher Muhammad.

5. The evidence of Manager, Qamar Din shows, that on taking charge he verified the accounts and found, that though the ledger of certain loanees of agricultural loans showed nil outstanding balance which indicated that loans had been repaid, but still there was no corresponding entries regarding receipt of these amounts in the cash register etc. He has produced list of accounts of loanees, who had repaid loan, as Exhs.2/A and 17 entries from the ledger accounts of these loanees Exhs. 2/3‑1 to 2/3‑

17. He has further stated, that appellant had orally as well as in writing admitted his guilt and had given the names of the persons in writing from whom he had received the amount, which he had misappropriated. According to him the appellant misappropriated Rs.47,

256. He states that the appellant reimbursed through five vouchers, the total amount Rs.1,71,500, which included not only the amount pertaining to the case in question, but to other two cases also. He has produced five credit vouchers Exhs. 2/D‑1 to 2/D‑

5. He has also produced the confessioned statements of appellant as Exhs.2/C‑1 to 2/C‑2.

6. P.W. Qamar Din is supported by P.W. Zahiruddin, whose father Wali Muhammad and brother Ghulam Rasool had taken loan of Rs.6,000 each. He states, he repaid the loan of Rs.6,000 on behalf of his father to the appellant but he did not give him receipt, though he kept him on promises. Cashier Ghulam Nabi has deposed, that no payment had been deposited by or on behalf of loanees, whose names appear in 'the list as Exh.2/A. Naimuddin Siddiqui, the Zonal Officer made enquiries with regard to alleged misappropriation. He admits that, the appellant dented the allegations against him. P.W. Gul Muhammad was Manager of Matiari Branch of U.B.L. from 4‑6‑1981 to 28‑11‑1983. He states, that appellant was incharge of the documents regarding the agricultural loans and that he was also responsible for the recovery of the loans.

7. It is admitted, that the appellant was incharge of agricultural loans in Matiari Branch of U.B.L. during the relevant time. It is also admitted, that loanees, who were 17 in number and whose names are shown in Exh2/A, were granted a total amount of Rs.47,

256. It is also submitted, that the ledger pertaining to these amounts shows no loan was outstanding against them. In other words, these; loans had been paid by the loanees. It is also admitted, that the entries in the ledger which have been produced as Exhs.2/B‑1 to 2/B‑17 are in handwriting of the appellant and bear his signature. He denies to have received any payment but has failed to explain as to why he made entries in the ledger indicating receipt of payment. P.W. Zahiruddin, who as pointed above, was son of one of the loanees, and brother of another, states, to have made payment to the appellant. It is not disputed, that repayments of these loans were not deposited in the bank. The evidence of Cashier Ghulam Nabi fully proves this fact.

8. Apart from the above evidence the main evidence against the appellant is, his own admissions in writing which Exh.2/ C‑1 and Exh.2/C.‑

2. In Exh.2/C.‑1 the appellant had admitted to have misappropriated amount repaid to him. He has also‑given the names of the persons who repaid their loans and the amounts repaid by them. In his statement under section 342, Cr.P.C., the appellant alleges; that he was compelled to write the admission, though he admits to have written and signed the same. The learned trial Court has considered this plea of the appellant and disbelieved it on the ground that payments shown in confessional statement were corroborated by the entries in the ledger which are Exhs. 2/B‑1" to 2/B‑17 which are admittedly in the hand of the appellant and that neither the appellant had indicated as to how he was compelled nor he had suggested sushi question to the complainant to whom this admission in writing was given by' appellant. The other admission Exh.2/C‑2 does not pertain to the loans of the' instant case as such it does not require any further consideration. The other incriminating circumstance against the appellant is, that he reimbursed Rs.1,71,500 to the bank apparently for the amount misappropriated by him. He; has not alleged that he was pressurised to pay this amount to the bank, nor has he explained as to why he made the payment. The only presumption that can be drawn is, that he made this payment to escape criminal liability, when confronted with the documentary evidence of the alleged misappropriations.

9. Mr. Faiz Muhammad Soomro, learned counsel for the appellant was not able to explain as to why the appellant made entries in ledger showing nil balance, against the names of loanees and as to why he made payment of Rs.1,71,500 to the bank. Rather he stressed the point, that the appellant had already made good the alleged misappropriated amount to the bank, but that would not absolve the appellant of criminal liability. The offence of misappropriation became complete, when the appellant, as employee of the bank received the amount from the loanees but instead of depositing it in the bank misappropriated the same. However, this fact can be taken into consideration while considering the question of punishment.

10. In view of the evidence and facts discussed above, in our opinion, the guilt of the appellant has been proved by the prosecution beyond reasonable doubt. Mr. Soomro, however, submits, that the appellant has undergone sufficient punishment as he had faced the prosecution for more than three years, has lost the job with no prospects of getting any other job, and has also made good the loss to the bank. As such he prayed, that the appellant may be leniently dealt with. In view of the above facts, we are inclined to agree with Mr. Soomro, that the appellant deserves leniency. We accordingly reduce the sentence in default of payment of fine from 12 months to 6 months. With this modification, the appeal of the appellant is dismissed. M.Y.H./M‑619/K Appeal dismissed.