1988 PLP 1792 (MLD)

Charge against accused Muhammad Shafi in this case is that while posted as Manager, National Bank of Pakistan, Chhappar Branch, he firstly on 31‑3‑1979 withdrew a sum of Rs.21,933.35 from the interest account of the Bank and disbursed only Rs.20,933.35 as interest on three different types of accounts and so far as the remaining sum of Rs.1,000 is concerned, he, by means of a transfer voucher dated 31‑3‑1979, Exh. P.W.3/2, transferred the same to account No. 31 of Muhammad Akram and on its basis showed in the said account of the said account‑holder the credit of the said sum, received the sum of Rs:1,000 in cash from the said account‑holder and misappropriate the same but satisfied him with the said credit entry of Rs.1,000 in his account. Secondly, on 30‑4‑1979 the accused withdrew a sum of Rs.22,474.52 from the interest account of the bank and disbursed the said interest to the total extent of Rs.21,274.52 in three accounts and so far as the remaining sum of Rs.1,200 is concerned, he transferred the same by means of credit voucher dated 30‑4‑1979, Exh. P.W.3/5 to, and credited the same in account No. 487 of Muhammad Aslam account‑holder and thus showed the said account‑holder Muhammad Aslam that the sum of Rs.1,200 paid by him for being credited in his account had been credited in his ledger account and he thus misappropriated the said sum of Rs.1,200 which he had obtained in cash from Muhammad Aslam and, thirdly, on 29‑11‑1979, the accused withdrew a sum of Rs.18,008.22 from the interest account of the Bank, disbursed the said interest to three accounts to the extent of Rs.16,008.22 and so far as the remaining sum of Rs.2,000 is concerned he transferred the same by means of credit voucher, Exh. P.W.3/8, to account No. 3 of Mst. Iqbal Begum which sum was credited by him in the said account of Mst. Iqbal Begum and he thereby satisfied the said account holder from whom he had got the said sum of Rs.2,000 by showing her that the said sum had been credited in her ledger account but he retained the said sum of Rs.2,0W and misappropriated the same. Thus the charge against the accused in all is in respect of criminal breach of trust by him of a total sum of Rs.4,200 in this case.

2. Complaint Exh. P.W.1/1, dated 20‑10‑1981 in this case was lodged by the succeeding Manager, Shaukat lqbal, P.W.3, while Muhammad Inayat, P.W.1' who was then posted as Naib Moharrar in P.S. Sarai Alamgir recorded formal A.I.R Exh. P.W.1/2 on the basis of the said complaint. P.W. 2 Muhammad Ashraf, S.I. S.H.O., P.S. Sarai Alamgir investigated this case. He went to the place of occurrence, prepared site plan, Exh. P.W.2/1, recorded statements of Shaukat Iqbal and Pervaiz Akhtar P.Ws., completed the investigation and submitted challan in the Court.

3. Trial in this case started in the Court of the Special Judge (Central), Rawalpindi, who framed charge against the accused on 21‑1‑1984, for offence under section 409, P.P.C. in respect of said three misappropriations. It may be mentioned that in the said charge in respect of. transaction dated 30‑4‑1979, the relevant sum had erroneously been written as Rs.9,200 (while it was in actual fact Rs.1,200 only) as a result of which the criminal breach of trust was stated in the charge to be for a total sum of Rs.11,

300. The actual fact is that the criminal breach of trust was in respect of a total sum of Rs.4,200 only.

4. After the framing of the charge, consequent upon promulgation of Offences in Respect of Banks (Special Courts) Ordinance, 1984, w.e.f. 23‑2‑1984, this case was sent to this Court for trial.

5. P.W. 3 Shaukat Iqbal gave evidence in respect of filing by him of the complaint Exh. P.W.1/1. His evidence to that extent is of a formal nature. P.W. 1 Muhammad Inayat gave evidence in respect of his having recorded the F.I.R. Exh. P.W.I/2 on the basis of the said complaint, EXh.P.W.1/1. His evidence is also of a formal nature. P.W 2 Muhammad Ashraf gave evidence in respect of his investigation m this case. So far evidence on the merits of the case is concerned, it is P.W. Shaukat Iqbal only who made statement in that regard.

6. P.W. 3 Shaukat Iqbal who took charge of the branch from accused Muhammad Shari, deposed that on checking he found that on 31‑3‑1979 the accused made a debit entry Exh. P.W.3/1‑A of a sum of Rs.21,933.35 in the interest account of the Bank on credit side of page 225 of clean cash book, certified copy Exh. P.W.3/1. According to this P.W. this amount was then to be credited by him in provisional interest account from where it was to be disbursed to different parties at the end of every six months. He further stated that the accused made the following credit entries on debit side of the said clean cash book on page 225 on 31‑3‑1979; (i) Interest on statutory deposits Rs.1,007.65. This entry is Exh.P.W.3/1‑B on Exh. P.W.3/1. (ii) Fixed deposit interest account No. 242.74. This entry is Exh.P.W.3/1.‑C on the said document. (iii) Cumulative deposit interest account, Rs.5,082.96. This entry is Exh. P.W.3/1‑D on the sail document. (iv) Saving hank interest account Rs.1,400 which entry is Exh..W.3/1‑E on Exh. P.W.3/1 The said P.W. further stated that the total of these credit entries came to Rs.20,933.35 but the accused had credited a sum of Rs.21,933.35 to the interest account of the N.B.P. as already stated. According to him the remaining sum of Rs.1000 was credited by the accused in the ledger account No. 31 of Muhammad Akram account‑holder, EXh.P.W.I/3 (on 31‑3‑1979) by virtue of credit voucher Exh.P.W.3/2 dated 31‑3‑1979).

7. In respect of the next transaction, P.W. 3 Shaukat Iqbal deposed as under:‑ "Similarly on 30‑4‑1970 on a spare page (photostatic copy Exh.P.W.3/4) of clean cash book (pasted in the beginning of the said book) the accused Muhammad Shafi made a credit entry of Rs.22,474.52, Exh. P.W.3/4‑A, on credit side of the said page. This amount was to be credited in the provisional interest account from where it was to be disbursed half yearly to different parties and in the case of fixed deposit disbursed immediately, on the presentation of the instrument on its having received maturity. The account, however, made following credit entries on the debit side of the said page of the clean cash book on the said date:‑ (i) Interest on statutory deposits Rs.1,290.29 which entry is Exh. P.W.3/4‑B. (ii) F.D.R. interest account Rs.316.96, which entry is Exh. P.W.3/4‑C. (iii) C.D.C. interest account Rs.5,477.27 which entry is Exh. P.W.3/4‑D. (iv) Saving interest account Rs.14,190 which entry is Exh. .W.3/4‑E. The total of these entries comes to Rs.21,274.52. There still remained a sum of Rs.1,200 out of the original sum of Rs.22,474.52 debited to the interest account in the clean cash hook. The accused fraudulently and .dishonestly deposited the said amount in account No. 487 of Muhammad Aslam account holder by preparing credit voucher which is Exh, P. W.3/5." In the same way P.W. 3 deposed as below in relation to the third transaction:‑ "In the same manner on 29‑11‑1979, on page 174 of the clean cash book, photostatic copy Exh. P.W.3/7, the accused, Muhammad Shari, made a debit entry of Rs.18,008.22, Exh. P.W.3/7‑A on the credit side of the said page. This amount was to be credited in the provisional interest account from where it was to be disbursed to different parties half yearly and in case of fixed deposit, immediately on presentation of the instrument on maturity. The accused, however, made the following three credit entries on the debit sick of the page of the clean cash book on the said date:‑ (i) F D R interest account, Rs.208.22 which entry is Exh. P.W.3/7‑B. (ii) C.D.C. interest account. Rs.3,000 which entry is Exh. .W.3/7‑C. (iii) Saving bank interest account, Rs.12,800, Exh. P.W.3/7‑D. Total of these comes to Rs.16,008.22. There was still a sum of Rs.2,000 un-disposed of out of the said sum of Rs.16,008.22 debited to the interest account of the bank. The accused abused his position as the Manager and credited this sum of Rs.2,000 fraudulently and dishonestly in the ledger account of Mst. Iqbal Begum after preparing credit voucher for the said sum on the same day. The said credit voucher is Exh.P.W.3/8 on the record of this case." The original clean cash book and the original ledger were summoned and certified copies of the relevant accounts therein were placed on the record with the permission of the Court. Original credit vouchers, three in number, relating to each one of the said three accounts were also placed on the record. The said P.W. in his statement deposed that the accused had been working alongwith him and on many occasions he saw him writing and making initials and signatures and on that account he was in a position to identify his writing, initials and signatures. He identified the writing on both sides of the clean cash book (on one side of which the accused had made debit entries of Withdrawal of the sums from the interest account of the bank and on the other. side of which he had made entries of disbursement of the said interest to different accounts) to be in the hand of the accused. He also identified the entries in the ledger crediting the sums in the accounts of three account holders to be in the hand of the accused and initials on the side of each entry to be in the hand of the accused. Similarly he identified the said three original transfer vouchers to be in the hand of the accused. He also identified the full signature on the three transfer vouchers in red ink for having allowed the transfer of the sums given in the three vouchers to the said accounts, namely, account No. 31 of Muhammad Akram, account No. 487 of Muhammad Aslam and account No. 3 of Iqbal Begum to be of accused Muhammad Shar. There was no cross‑examination on this witness regarding his source of acquaintance with the handwriting/signature/initial of the accused, Muhammad Shat and, therefore, that part of the statement of this witness was obviously accepted to be true. The source of knowledge described by this witness falls within the peripheri of explanation to Article 61 of the Qanoon‑e‑Shahadat, 1984. 1 Apart from that there is nothing on record to shake credit of this witness. His statement is fit to he given full Credence to. From the above, portion of the statement of this witness, it stands proved that accused transferred, by means of said three separate transfer vouchers the said three sums from the interest account of the bank to the private accounts of the said account holders. So far as each ,of the first two transactions. one dated 31‑3‑1979 and the other dated 30‑4‑1979, relating respectively to Muhammad Akram and Muhammad Aslam account‑holders are concerned, the dates in relevant entries in clean cash book, the transfer vouchers and the ledger entry correspond with each other but as regards the third transaction relating to Account No.3 of Mst. Iqbal Begum account‑holder, the date on the relevant entries in clean cash hook is 29‑I1‑1979, but in transfer voucher Exh. .W.3/a' the actual year is missing while the date is slovenly written and is not legible. Apart from that in the ledger account of Mst. Iqbal Begum relevant credit entry of the said sum of Rs.2,000 shows the date to be 28-11‑1980. Now the year 1.980 in the said date i5 clearly result of an error and must be deemed to be 1979 as the said entry is placed in, between entry dated 24‑11‑1979 and entry dated 3‑12‑1979. The date 28th also appears to be sheer error and seen in the light of the entries dated 29‑11‑1979 in the clean cash book whereby a sum of Rs.2,000 was left outstanding and had to be disposed of on the same day to balance the books of the branch, it is clear that the correct date of the said entry is 29‑11‑1979. Similarly correct date of transfer voucher Exh. P.W.3/8 is 29‑11‑1979. Thus the said difference in dates given in transfer voucher, Exh. P.W.3/8 and ledger account Exh. P.W.3/9 from the date given in clean cash book as regards the said third transaction does not detract from the correctness of my finding given above that the accused had transferred the said three sums from interest account of the bank to private accounts of said account‑holders.

8. Statement of Shaukat Iqbal P.W.3 was also to the effect that the modus operandi of the accused was to obtain sums first from the account‑holders and then transfer sums from the interest account or general account of the bank and credit the same in the account of the persons from whom he had obtained any sum and in this way he satisfied the account‑holders of the bank by showing credit entry in the relevant ledger account and also balanced account of the bank and thereby succeeded in misappropriating the said sums.

9. There was no eye‑witness to the factum of the accused having received the said sums of Rs.1,000, Rs.1,200 and Rs.2,000 respectively from Muhammad Aslam, Muhammad Akram and Iqbal Begum. The said P.W.3 Shaukat Iqbal deposed that he had not called lqbal Begum, Muhammad Akram and Muhammad Aslam account‑holders to find out whether in fact they had paid the sums to the accused. He explained that it was no use calling those persons as their accounts showed the credit entries of the said sums all right. He further deposed that the accused could not have made credit entries in the account of the said account‑holders just for the fun of it and that he must have received the said sums from the said account‑holders. He also made a categorical statement that there was no cash deposit voucher (Bank portion of the pay‑in‑slip) available in the branch of the bank because no sum was actually deposited there and that the said three vouchers got exhibited by him were the only vouchers in the branch in respect of the said three transactions. These statements had been elicited from the said P.W. by accused Muhammad Shafi himself in cross‑examination. It is clear. therefore, that there was no cash deposit voucher available in the branch showing deposit of relevant amounts of cash by the said three account‑holders in the branch. The question in these circumstances is that in face of the said entries in the clean cash book, in the accounts of the said account-holders in the ledger and the transfer vouchers themselves having been proved to be in the hand of and bearing the signature/initial of the accused. Whether it can be said that the accused had first received the said sums and then manoeuvred to make credit entries in the accounts of the said account‑holders by transferring equal sums from interest account of the bank to their accounts by means of said transfer vouchers. In my opinion, such a thing can be inferred from the said proved circumstances. P.W. 3 Shaukat Iqbal correctly stated that the accused could not have made credit entries in the accounts of the account‑holders just for the fun of it and he must have received the sums and it is then alone that he had made the said credit entries. The said credit entries were obviously not result of any error but they were intentional acts of the accused as he had made transfer vouchers of the said sums transferring the said sums by way of credit in the accounts of the said account‑holders without any justifiable cause whatsoever. The sums which he was transferring belonged exclusively to the bank as those belonged to the interest account of the bank from which the interest is payable to the depositors accruing on their deposits. He was Manager of the bank and it cannot be said that he had no knowledge or no understanding that the sum of interest account could not be transferred to the account of private persons. The fact that he intentionally and advisedly prepared transfer vouchers transferring the sums of the interest account of the bank to ledger account of private persons maintaining accounts in the branch, seen in the context of the circumstance that there are no deposit vouchers in the branch in respect of deposit of said sums in the said accounts but the sums stand credited in the account of the said account‑holders in the handwriting of the accused Manager of the bank, raises a presumption that he had received the said sums in cash from the said account‑holders. This is an inference which a rational mind normally and naturally draws from the existence of the above facts. The presumptions take the place of direct proof and arc a substitute for the same and prove the matter when there is no direct evidence. The same is the case in the present case. From the circumstances detailed above, a clear presumption follows that the accused received the said sums of Rs.1,000 Rs.1,200 and Rs.2,000 respectively from Muhammad Akram, Muhammad Aslam and Iqbal Begum, account‑holders respectively on 31‑3‑1979, 30‑4‑1979 and 29‑11‑1979. It is thus proved that he received the said sums from the said account holders on those dates. Now in transferring equal sums of the bank to the accounts of said private persons instead of crediting the said sums in their accounts on the basis of cash credit vouchers of said parties and including the said sums (received by him from said account‑holders) in the daily cash of the branch, there could be no other purpose except the misappropriation of the said sums. He did not place the said sums in the daily cash of the branch on the said dates and pocketed the same. It thus, stands proved on the basis of the prosecution evidence itself that he received the said sum of Rs.4,200 from the said three account holders and misappropriated the same and is thus proved to have committed criminal breach of trust of the said amount.

10. In his statement under section 342, Cr.P.C. the accused did not deny that he made the .said entries in the clean cash book and the ledger accounts. He also admitted that he said transfer vouchers were in his hand whereby he had transferred the said sums of the bank into the accounts of Muhammad Akram, Muhammad Aslam and Iqbal Begum. He, however, stated that he had advanced the said sums to the said account‑holders as Manager of the branch in order to oblige the said account‑holders in the interest of the bank. The question therefore, is whether in transferring the said sums to the accounts of said three account‑holders, the accused had in fact advanced the said sums as loan to the sat,‑ three account‑holders. In the prosecution evidence no question was put to P.W.3 Shaukat Iqbal, Manager of the branch that he (the accused) had credited the said sums in the accounts of said three account‑holders by way of loan advanced by him as Manager of the branch. If and when a bank advances any sum by way of loan to a constituent of the bank, it gets many documents executed from such a person to ensure the refund of the sum advanced to him. If any question had been asked from P.W. 3 Shaukat Iqbal who was the succeeding Manager and had checked the record of the branch, he would have stated precisely whether any such documents showing said transfer of money were loans were available in the branch or not. He was, however, not asked the said question. It is clear, therefore, that the said plea of the accused was an after thought which had not yet been concocted by the accused when P.W. 3 was examined. Apart from that the accused did not produce any witness to prove the same in defence. He did not even summon the said account‑holders to prove his said pica. The said plea of the accused the detail of which was in his personal knowledge and could have been established by him alone, was not proved by the said accused. This Court, had itself ex debito justiciae in exercise of its powers under section 540 Cr.P.C. summoned the said three account‑holders on the basis of their addresses given in the certified copies of their ledger accounts on the record of this case. So far as Muhammad Akram account‑holder is concerned, report on the back of his summon was that no person with the said name etc. was living in Chhapper and the said report was duly signed by Muhammad Arif. Councillor of that part of the ward in which Chhapper was situate. Since the evidence of this witness could not on that account be procured it was closed as per interim order dated 19‑3‑1988. So far as the report on the back of the summons of Muhammad Aslam and Iqbal Begum was concerned the report was that they had left for London. Both the said reports were duly signed in each case by Gul Nawaz, Councillor of the Town Committee, Sarai Alamgir. It was, therefore,. clear to me that the procuring of the attendance of the said two witnesses to give evidence in this case as Court witnesses was not possible without an amount of delay and expenses which in the circumstances of this case would be unreasonable. I, therefore, closed their evidence too on the said date. The result is that there is no evidence on record to support the said plea of accused Muhammad Shaft. On the other hand, there are on the record of this case, documents which completely negate the truth of the claim of the accused that he had advanced the said sums to the said account‑holders by way of loan. These documents are certified copies of accounts of said three account‑holders which show that the statement to that effect of the‑accused is wholly false. The extracts from the relevant portions from the said accounts of the said account‑holders alongwith necessary comments are given as below:‑‑ Exh. P.W.3/3 Account of Muhammad Akram Date Particulars Cheque No. Debit Credit Balance March 13 To W.D. 001467 1,600 41,014.36 March 31 By Transfer 1,000 42,014.36 April T w/f 001548 1,000 41,014.36 It is clear from this extract of account of Muhammad Akram that on 31‑3‑1979 he had a sum of Rs.41,01‑1.36 as credit balance in his account since 13‑3‑1979. Therefore, he did not need a sum of Rs.1,000 from the accused by way of loan. In anyway even if it is assumed that he needed the said paltry sum of Rs.1,000 over and above the said sum of Rs.41,014.36 which he had already in the said account then on crediting of the said sum of Rs.1,000 he should have immediately withdrawn the entire sum of Rs.42,01436 but he did not do so and instead in April withdrew a sum of Rs.1,000 only by means of a cheque which reduced his balance again to the original amount. The story of accused Muhammad Shafi having advanced a sum of Rs.1,000 as loan to said account‑holder is clearly, therefore, a mere canard. Exh. P.W.3/6 ACCOUNT OF MUHAMMAD ASLAM Date Particulars Cheque No. Debit Credit Balance Feb. 1 To cash 2,54,932 2,030 18 April 30 By Transfer 1200 1,218 May 7 To cash 2,54,935 1,210 8 It is clear from the extract that on 1,2‑1979 in the said account of Muhammad Aslam, he had only an amount of Rs.18 only and on the basis of transfer on 30th April, 1979 of a sum of Rs.1,200 to the said account, the said sum had swelled to Rs.1218. But, if said Muhammad Aslam needed any money and had obtained the said sum as loan from the accused, he would have withdrawn the said sum of Rs.1,200 right on the same day or the next date but he is shown in the said account to have withdrawn the said sum of Rs.1,200 on as distant a date as 7th May, 1979. The story of accused having advanced the sum of Rs.1,200 as loan to Muhammad Aslant account‑holder is, therefore, clearly false. Exh. P.W. 3/9 ACCOUNT OF MST. IQBAL BEGUM Date Particulars Cheque No. Debit Credit Balance Nov. 4 . 32,350 44,429.44 6,079.45 28.11.1980 2,000 8,879.45 (actually 29‑11‑1979) Dec. 3 1,000 9,879.45 Dec.11 3,000 6,879.45, It is clear from the above that Mst. Iqbal Begum was having a sum of Rs.6,079.45 as her credit balance in her account since 24th November, 1979. It is obvious, therefore, that she did not need loan of Rs.2,000 only from the accused at that time. Even if it is assumed for the sake of argument that she needed, apart from the sum of Rs.6,079.45 which was her balance in her account, another sum of Rs.2,000 then in that case, on crediting of the said sum in her account on 29‑11 1979, she should have with drawn the entire sum of Rs.8,879.45 immediately thereafter. However, instead of that, after the deposit of Rs.2,000 on the basis of the said credit entry she ran the other hand made a further deposit of a sum of .Rs.1,000 which swelled her balance to Rs.9,879.45. It was only an the 11th of December! 1979 that she withdrew a sum of Rs.3,

000. In these circumstances, the plea of the accused that he had advanced a sum of Rs.2,000 to Iqbal Begum is a pure concoction and undiluted falsehood.

11. Again in his statement under section 342, Cr.P.C. the accused in reply to question No. 5 while conceding that he transferred a sum of Rs.1,000 from interest account of the bank to private account of Muhammad Akram claiming to advanced this sum as loan to Muhammad Akram stated that there was no dishonesty in his doing so. Again in reply to question No. 7 while accepting that he had transferred the sum of Rs.1,200 from interest account of the bank to the account of Muhammad Aslam account‑holder and pleading that he advanced the said sum of Rs.1,200 to Muhammad Aslam by way of loan stated that the said sum of Rs.1,200 which exceeded actual payments of interest to account‑holders should have been credited back by him in the interest account and that he had committed a mistake in utilizing the said sum of Rs.1,200 and crediting it in the account of Muhammad Aslam account‑holder and that he had done so in the interest of the bank and not for any pecuniary advantage to himself and that, no doubt, was illegal but he had no criminal intention. Again in reply to question No.11 while stating that he had transferred the said sum of Rs.2,000 to the account of gist Iqbal Begum and raising the plea that in doing so he had advanced the said sum as loan to her, also claimed that there was no dishonesty or fraud involved in his doing so and further stated that although the said payment was not in accordance with rules, regulations and instructions of the. bank, he was not aware of the same. The accused had thus pleaded unintentional mistake on his part in his making each of the said three transfer entries on account of lack of knowledge on his part of the instructions, rules and regulations of the bank. However, making of any unintentional mistake by the accused in the said acts appears to be negated by facts and circumstances of the case. Managers of branches are appointed from category of persons who have been in the service of the bank for some length of time and have experience of working of the bank as well as available knowledge of relevant instructions, rules and regulations of a bank and, therefore, accused Manager of the branch cannot be said to be ignorant of said instructions; rules and regulations. As a matter of fact it appears to me that no knowledge of instructions, rules and regulations of bank was at all required to understand that when a sum is withdrawn from the interest account of the bank for disbursement of interest to account‑holders, the sum in excess of that actually defrayed in paying interest to account‑holders should be refunded to the said interest account. It is a matter of simple common‑sense that the sum drawn from interest account of the bank is the sum owned by the bank and when any portion of it falls in excess, it has to be credited back in the interest account of the bank and cannot be doled away to any private person and credited in his account. No amount of knowledge of instructions etc. of the bank is required to understand that common place fact. Accordingly the acts of the accused in transferring three sums to the accounts of the said account‑holders were neither mistaken nor I unintentional. Apart from that, the accused had transferred these sums to the accounts of said three account‑holders by staking transfer vouchers. The said acts were clearly, therefore, planned, intentionally, wilful and not inadvertent. As far the plea of absence of dishonesty or mens rea on his part in making the said transfers, apart from the fact that these acts clearly appeared to be mala fide acts on his based on ulterior motives, there is the further circumstance that the accused had had in his said statement under section 342, Cr.P.C. tagged them with his plea of his having advanced said sums by way of loan. Now with the plea of the accused in respect of his having advanced said sums by way of loan having been positively found to be false, the plea of inadvertent mistake and lack of dishonesty and mens rea ors his part in making said transfers also goes by the board. In consequence, from the circumstance of accused having admittedly transferred said sums. illegally or in violation of instructions, rules and regulations of the bank from interest account of the bank to the private accounts of constituents of the bank, the inference to be drawn is that he had dishonestly for the purpose of gaining pecuniary advantage therefrom made the said transfers and he had mens rea in doing so.

12. Ch. Ali Muhammad, learned counsel for the accused has cited Chandrika Prasad v. Emperor I R 1930 Oudh 324 to contend that credit entries of said sums made by the accused in the accounts of said account‑holders were mere wrong entries which only raise strong suspicion which though a ground for scrating could not justify conviction of accused for offence of criminal breach of trust and only made out a case for departmental action against the accused. He further submitted on the basis of the said decision that mere book entries of said sums made by the accused in the accounts of said three account‑holders without any proof of actual entrustment of said sums by the said account‑holders to the accused do not by themselves prove commission of offence of criminal breach of trust by the accused. I have given my serious thought to the said point raised by learned counsel for the accused. As already found, the said credit entries were not mere wrong entries made inadvertently but were entries which had been made by the accused on the basis of three transfer vouchers by virtue of which he transferred the said sums of the bank from its interest account to the accounts of the said private persons. There was no justifiable reason for transfer of said sums of the bank from its interest account to accounts of said account‑holders. The said unusual and extra‑ordinary acts of the accused were obviously intentional and wilful and clearly showed mens rea on his part as those acts were not explainable except on the hypothesis of criminal intention on the part of the accused and of his getting said sums in cash from account‑holders and misappropriating them and, thereafter his making credit entries of the said sums in their accounts by transferring said sums from interest account of the bank to their accounts in order to satisfy the said account‑holders. The fact that there were no cash deposit vouchers (bank portion of the pay‑in‑slip) in the bank as deposed to by P.W.3 Shaukat Iqbal and yet the sums were credited in the accounts of said account holders conclusively shows that the accused received the said sums from the said account‑holders. He could not have made the said credit entries in their accounts wilfully and intentionally as the case is unless he had received the said sums in cash from the said account‑holders for credit in their accounts. This is the only reasonable inference which can be drawn in the circumstances of this case and that inference makes for the absence of direct evidence of entrustment of the said sums by the account‑holders to the accused. In F.C. Hay v. Emperor A I R 1925 Oudh 469 the accused was alleged to have permitted large stores belonging to Railway Department pass into the ownership of Cheedi Ram and Maiku Lai without any payment It was held that even if there be no proof of the accused, public servants, of having received even a single rupee, on the said facts they would be liable to conviction under section 409, P.P.C. and that necessarily under the said circumstances benefit to the accused would be presumed on proof of above facts because it cannot be thought that they permitted such wrongful gain to Chhedi Ram and Maiku Lal and wrongful loss to other persons out of pure kindness of heart or out of charity for poor starving Kalwars at the expense of rich Railway Company. Similar presumption stands raised in the,, present case. Accordingly receipt by the accused of sums of Rs.1,000, Rs.1,200 and RS.2,000 has legitimately been presumed by me in the present case. From the above proved circumstances an inference compatible with non‑receipt by accused of sums of Rs.1,000, Rs.1,200 and Rs.2,000 is not possible and furthermore the above proved circumstances are incapable of explanation upon any reasonable hypothesis other than receipt by the accused of the said sums from the relevant account‑holders. 1, therefore, reject the said contentions of the learned counsel for the accused and hold that it has been proved that the accused was entrusted with the said three sums by the said three account‑holders which he did not deposit in the bank but misappropriated the same and in order to satisfy the said account‑holders made credit entries of said sums in their accounts by dishonestly and fraudulently transferring said sums from the interest account of the bank and had thus committed the offence of criminal breach of trust.

13. In any way, quite apart from the above finding and irrespective of the fact whether the accused actually received said sums from the account‑holders or not, on other facts and circumstances found proved in this case, the commission of offence of criminal breach of trust has been proved against the accused on the. basis of another portion of the definition of criminal breach of trust made in section 405, P.P.C. which provides that `whoever being in any manner entrusted with property or with dominion over property, dishonestly disposes of that property in violation of any legal contract, express or implied which he has made touching the discharge of such trust commits the offence of criminal breach of trust. The accused was Manager of the branch and it would be acknowledged at all hands that as such he was entrusted with dominion over the bank funds. fie transferred the sum of Rs 4,200 of the bank to private accounts of Muhammad Akram, Muhammad Aslam and Iqbal Begum, account‑holders and thus disposed of the said sum of the bank in violation of the implied contract which he had made with the bank at the time of his entering into bank's service that he would deal with the funds of the bank in accordance with the instructions, rules and regulations of the bank and not arbitrarily. From the circumstance of accused Muhammad Shafi being in the service of the bank during the year of occurrence and from nature of work in a bank, a clear presumption stands drawn that he had implied contract with the bank that he would dispose of the funds of the bank in accordance with the instructions, rules and regulations of the bank and not in any manner which he liked. There was no earthly reason in disposing of the said sums in the manner in which he had done. He had disposed of the said sums dishonestly within the meaning of the said word as defined in section 24, P.P.C. which reads as below:‑ "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly"." The accused had at least tried to cause wrongful gain to the said account‑holders and to cause wrongful loss to the bank. The case of the accused is, therefore, fully covered b that portion of section 405, P.P.C. He is thus roved to have committed the offence of criminal breach of trust of said sum ofpRs.4,200 on the basis of that part of definition of `criminal breach of trust' made in section 405, P.P.C.'

14. In his statement under section 342, Cr.P.C., accused Muhammad Shafi, stated that he had recovered the said three sums advanced by him from the said three account‑holders and deposited the same in the sundry account of the bank maintained in current account ledger. In reply to the question whether he would produce defence he prayed that the present Manager of National Bank of Pakistan, Chappar Branch alongwith current account ledger containing sundry deposit account for the year 1980 be summoned in his defence. Accordingly the said Manager was summoned alongwith the said record. Abdul Latif the present Manager of the branch appeared alongwith the said record and was examined by the accused as D.W:

1. The said witness, however, stated that in the current account ledger containing the sun deposits recovered account, there was no entry of the said amounts of Rs.1,000 Rs.1,200 and Rs.2;000 in regard to account Nos. 31,487 and 3 of Muhammad Akram, Muhammad Aslam and Iqbal Beg um respectively. The said D.W. however, stated that the total amount which had been found embezzled by the accused from the branch was Rs.1,06,157 and that the said sum due from the accused had been aid by the accused in the branch by depositing the said sum in this account and nothing was now due from him. This shows that the accused had aid the said sum of Rs.4,2W which was a part of the said total sum of Rs.1,06,157 in the branch. P.W. 3 Shaukat Iqbal had also accepted in cross‑examination the suggestion that the accused had deposited the sum of Rs.4,

200. However, since it has already been conclusively proved that credit entries of said three sums in the account of said three account‑holders were not advances by way of loan the said portions of evidence of the said two witnesses do riot exculpate the accused inasmuch as restitution of any amount fraudulently withdrawn from the bank does not wash off the offence shown to have been committed by an accused person.

15. For the foregoing reason I am of the view that it stands roved to the hilt that the accused had committed the offence of criminal breach of trust of the said sum of Rs.4,200 from the branch, partly during March, April, 1979 and partly in. the end of 1979.

16. The accused was a public servant as defined in clause ninethly of section 21 of P.P.C. Apart from that, he was a public servant under second explanation to section 161, 1.P.C. as the accused was an employee of the National Bank of Pakistan which is a corporate body set up, controlled and administered under the authority of the Federal Government. The offence of criminal breach of trust of said sum of Rs.4,200 committed by the accused, therefore, falls under section 409, P.P.C. 1, therefore, convict accused Muhammad Shari of offence under section 409, P.P.C.

17. D.W. 1 Abdul Latif had stated that the total sum of Rs.1,06,157 was deposited by the accused in the branch after the checking/audit of the branch and consequent discovery that sums of bank were deficient or had been embezzled Refund by the accused of the said sum of Rs.4,200 in respect of which he had committed criminal breach of trust was not voluntary and had not been made till discovery of short falls consequent upon checking through audit of the branch and after a delay of many months together and,, therefore, the said circumstance does not constitute an extenuating circumstance justifying any reduction in the quantum of sentence to be imposed on the accused. Accordingly for the said offence under section 409 P.P.C. I sentence the accused Muhammad Shafi to R.I. for two years and to a tine of.Rs.6200 and in default of the payment of the said amount of fine to further R.I. for six months. The accused shall be entitled to the benefit of section 382‑B, Cr.P.C. in the matter of sentence of imprisonment. Out of the‑ fine, if recovered, a sum of Rs.3,000 shall be paid to the complainant bank as compensation for expenses incurred by it in prosecuting the accused and remaining sum shall, be confiscated to the State. AA.,/31/Spl.B Accused convicted.