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Petitioner: PERVAIZ MAHMOOD VS Respondent: THE STATE
1986 P Cr. L J 1174
[Special Court of Offences in Banks]
Before Ghazanfar Ali Gondal, J
PERVAIZ MAHMOOD--Petitioner
Versus
THE STATE--Respondent
Case No. 63 of 1984, decided on 30th May, 1985.
(a) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)----
---S. 4--Penal Code (XLV of 1860), Ss. 468 & 409--Accused receiving an amount from a customer against a deposit receipt but failing to account for some amount out of total sum received by him--Defence plea that shortage was genuine due to his having not counted cash received by him from said customer not believed by any prosecution witness--Customer who paid said amount to accused, while appearing as prosecution witness not stating that accused had counted cash tendered by him in his presence--Amount deposited by customer being a substantial amount and proof of its having been counted on either side, held, was necessary to fasten responsibility on either side of parties.
(b) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)
---S. 4--Penal Code (XLV of 1860), Ss. 468 a, 409--Guilt of accused- Proof--On us--On us to prove that act of accused is not explainable on any other reasonable hypothesis except guilt of accused is always on prosecution.--[Burden of proof].
(c) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)----
---S. 4--Penal Code (XLV of 1860), Ss. 468 409--Accused allegedly failing to account for certain amount out of total amount received by him from a customer--Defence explaining shortage on basis of reasonable hypothesis of accused having not counted cash immediately on its receipt from said customer--Prosecution failing to prove that sum received by' accused from customer had been counted by accused immediately on its receipt--Statement of accused remaining un controverted--Statement of customer appearing to be motivated by prospect of losing deficient amount--Customer in his zeal to support prosecution case even denying fact admitted by other prosecution witness--Customer not appearing to be truthful - witness--Part of statement of accused that he contacted customer in his effort to make shortfall in funds of Bank, held, could not be belied by statement of customer--Number of other positive indications also existing on record which supported defence plea--Defence plea accepted in circumstances.
(d) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984) -
---S. 4--Penal Code (XLV of 1860), Ss. 468 409--Accused allegedly failing to account for certain amount out of amount received by him from a customer--Accused stating in his statement under S. 342, Cr.P.C. that he had informed Manager very next morning that he had discovered a shortage in a sum received by him on previous day--Letter addressed by Manager to higher authorities showing that even on third day of occurrence Manager of Bank did not choose to add allegation of any criminal import against accused in said letter--According to normal human nature Manager would have laid blame upon accused as he, as a Manager was answerable to all what had happened in his branch and was faced with necessity of exculpating himself too--Explanation of accused to Manager appearing to have neutralized mind of Manager vis-a-vis his criminal involvement in matter--Statement of accused believed.
(e) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)
---S. 4--Penal Code (XLV of 1860), Ss. 468 a 409--Shortage of money in Bank funds--Accused was first person who had given Manager of Bank information of shortage of money in Bank funds and had given his explanation for same--Accused giving such information and explanation on the very next morning of occurrence, which was first available opportunity--Information of shortage and explanation for money given by accused on very next morning, held, was of great significance as same showed first version of incident which accused had put forward at earliest opportunity--Fact that no F.I.R. had been lodged when accused gave such explanation, showed that accused had no reason to concoct a false story in relation to incident--Defence plea believed in circumstances.
Hasil v. Emperor A I R 1942 Lah. 37 rel.
(f) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)
---S. 4--Penal Code (XLV of 1860), Ss. 468 & 471--Criminals who commit their misdeeds in darkness of night or in cover afforded by dark corners during day do not voluntarily expose to light their misdeeds--Such criminals become all the more secretive to avoid detention and apprehension--Only innocent persons through whose inadvertent mistakes wrongful acts take place announce and proclaim such acts and appraise their superiors on first available opportunity of mishap occurred to them.
(g) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)
---S. 4--Penal Code (XLV of 1860): Ss. 468 a 471--Accused allegedly failing to account for a shortage in amount received by him from a customer--Accused issuing a deposit receipt to customer after posting an entry of said sum in ledger--Bank Officer with a shred of sense and a little bit of prudence, held, would not in such situation take away some sum out of deposited sum and expose himself to criminal prosecution--Defence plea that shortage occurred on account of having not counted cash by accused at time of its receipt found to be based on truth--Accused would not have sacrificed his entire career and destroyed means of his livelihood for sake of a small sum especially when during course of fifteen years of his service in Bank he could be visualized to have had innumerable opportunities to make misappropriations of much bigger sums from Bank--Conduct of accused of depositing of deficient amount in Bank within 5/6 days in order to avoid loss to Bank due to his mistake also found to be fair and upright- Shortage of amount found to be genuine in circumstances.
(h) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)
---S. 4--Penal Code (XLV of 1860). Ss. 468 & 409--Accused allegedly causing shortage in funds of Bank--Accused stating in his statement under S. 342, Cr.P.C. that case was registered against him due to instructions of Banking Council for prosecution of all officials responsible for shortage in Bank funds irrespective of fact that such shortages were genuine or not--Nothing on record available to show that before getting case registered against accused Bank authorities took any decision on first plea of accused which was plausible and did not stand negated by any adverse circumstance before them--Prosecution neither bringing on record any report of internal inquiry nor showing that Inquiry officer took into consideration specific plea of accused which he had raised before Manager--Defence plea that case was registered only on instructions of Banking Council found to be truthful in circumstances.
(i) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)----
---S. 4--Penal Code (XLV of 1860), S. 409--Accused allegedly failing to account for certain amount of total amount received by him from a customer--Prosecution failing to prove entrustment (which was sin qua non for offence of criminal breach of trust) of alleged deficient amount to accused beyond all shadow of doubt--Mere shortage of amount, held, was not by itself sufficient to prove charge of criminal breach of trust by a public servant, as dishonest misappropriation or conversion of deficient amount to one's own use which was other essential ingredient of criminal breach of trust as defined in S. 405, P.P.C., had not been established--Prosecution failing to discharge its duty by producing evidence to show that accused had put alleged deficient amount to his own use--Accused was not guilty of offence under S. 409, P.P.C. as no misappropriation by accused had been proved--Accused acquitted.
Mir Ahmad v. The State P L D 1962 S C 489 and Syed Mustafa Shah v. The State 1968 P Cr. L J 358 rel.
(j) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---
---S. 4--Penal Code (XLV of 1860), Ss. 468, 463 & 464--Forgery- Accused allegedly making a false and counterfoil voucher of certain amount after tearing off original voucher--No eye-witness of tearing off of voucher produced--Accused admitting to have prepared new voucher in his own hand in substitution of original voucher Accused furnishing plausible explanation for doing so--No intention found on part of accused to cause any wrongful loss to Bank or to commit any fraud upon Bank--Accused having no intention to cause wrongful gain to him--Offence of forgery as defined in S. 463, P.P.C. read with S.464 P.P.C. not proved--Intention to cheat which was essential ingredient of offence under S. 468, P.P.C. was negated by conduct of accused--Accused found to have made new voucher as a measure in order to tide temporarily over difficulty with which he was faced on account of his being all alone in Bank at closing hour when he discovered a deficiency of certain amount--Charge for offence under S. 468, P.P.C., held, was not proved in circumstances--Accused acquitted.
Raja Muhammad Anwar, Sharif. Hussain Bukhari and Muhammad Nawaz Khokhar for Petitioners.
Kh. Saeed-uz-Zafar, Special Prosecutor for the State.
JUDGMENT
The facts of the case are that by virtue of letter, dated 3rd 1982. Exh. P.W. 3/1, Muhammad Khalid Khan, Manager, U.B.L., Shamke Bhattian Branch, District Lahore, complained to S.H.O., P.S. Manga Mandi, District Lahore that Messrs Ghulam Rasool and Brothers, Fertilizer Dealers, had deposited a sum of Rs.23,200 in their account which amount was received by Pervaiz Mahmood, Officer Grade III of the bank, against proper counter-foil of the pay-in-slip issued on 11-11-1980. but the entry of the aforesaid amount of Rs.23,200 was missing and was shown as Rs.18.200 in the cash receipt book and that it had been discovered that accused Pervaiz Mahmood had removed original deposit slip of Rs.23,200 replaced the same with the slip of Rs.18,200 and thus defrauded the bank of a sum of Rs.5,000 and misappropriated the same dishonestly. He further alleged therein that accused Pervaiz Mahmood had confessed his criminal act of forgeries and misappropriation of the money and as a token of his confession, had refunded the said sum of Rs.5,000 in the bank. In the end, he requested (hat case be registered against the accused. As a result of this complaint, F.I.R. No. 30/81, Exh. P.W. 4/1, was registered in the said police station on 4-4-1982.
2. Abdul Haq, A.S.I. of the said police station was entrusted with the investigation of this case. On 8-4-1984, the Manager Muhammad Khalid Khan, who later appeared at the trial as P.W. 3, produced before him photo copy of deposit receipt for a sum of Rs.23,200, dated 11-11-1980 which is on record as Exh. P.W. 2/5, a photostat copy of cash credit voucher, dated 11-11-1980 for a sum of Rs.18,200 which is Exh. P.W. 2/2 and photo copy of the cash credit voucher, dated 17-11-1980 for a sum of Rs.5,000 alleged to have been written in the hand of and signed by the accused, by virtue of which he had refunded the sum of Rs.5,000 in the bank which is on record as Exh. P.W. 2/3. The said Investigating Officer, took these documents into possession by virtue of seizure memo. Exh. P.W. 2/4. The said memo was signed by Ghulam Rasool, P.W. 2, Muhammad Khalid Khan, P.W. 3.
3. The trial of the accused started in the Court of Special Judge (Central), Lahore who framed charge against the accused on 10-2-1983, for offences under sections 409, P.P.C. and 468, P.P.C. and section 5 of Act II of 1947. The first head of .the charge alleged that the accused had, while working as Officer Grade III, in the U.B.L., Shamke Bhattian Branch, District Lahore, received on 11-11-1980, a sum of Rs.23.200 from Ghulam Rasool and Brothers Fertilizer Dealers, Shamke Bhattian, for deposit in their account No..51 but had shown Rs.18,200 instead of Rs.23,200 in the bank record and had thus committed offence under section 409, P.P.C. The second head of the charge stated that he had forged deposit slip of Rs.18,200 after removing original deposit slip of Rs.23,200 with intent to cause loss to the bank and thus committed offence under section 468, P.P.C. The third head of the charge was one for offence under section 5 of Act II of 1947 which is not triable by this Court and would, therefore, not be commented upon.
4. Muhammad Arif the then Manager of Shamke Bhattian Branch of U.B.L. on 11-11-1980 appeared as P.W. 1. He produced in the Court, from the bank record, original credit voucher for a sum of Rs.18,200 alleged to have been prepared by the accused. It is Exh. P.W. 1/1. He also produced photo copy of sheet, dated 11-11-1980 of receiving cashier's book Exh. P.W. 1/2 showing an entry of receipt of a sum of Rs.18,200 instead o Rs.23,200 in Account No. 51 of Ghulam Rasool and Brothers. He also produced attested copy of the relevant sheet of the ledger showing an entry of Rs.23,200 as having been deposited on 11-11-1980 in the account of Messrs Ghulam Rasool and Brothers. This document is on record as Exh. P.W. 1/3. In narration of facts of the case, he stated that on 11-11-1980, he was working as Manager U. B. L., Shamke Bhattian Branch, Multan Road, Lahore and on 12-11-1980 when he checked the record, he found an entry of Rs.23,200 in the ledger, in the account of Messrs Ghulam Rasool and Brothers. in the hand of the accused but the cash credit voucher, Exh. P.W. 1/1, retained in the bank which was in the handwriting of the accused, was for a sum of Rs.18,200. He also stated that the original cash credit voucher filled in by the party, showing therein sum of Rs.23,200 as having been deposited by it, was destroyed by the accused who had thereafter prepared false credit voucher, Exh. P.W. 1/1, for Rs.18,200. He also stated that he checked the deposit receipt in possession of the party and had found that in that a sum of Rs.23,200 had been shown and on that he had made report to the Zonal Office. He also stated that in receiving cashier's book, the accused had made an entry (photo copy Exh. P.W. 1/2) for a sum of Rs.18,200. In cross-examination, the said witness stated that he left the bank on 11-11-1980 after 1-30 p.m. and that on 13-11-1980, the accused had told him that shortage of Rs.5,000 had occurred in cash received by him on 11-11-1980 and in that connection he had contacted the party also. He admitted that the accused had made up loss of the bank by depositing a sum of Rs.5,000 in the bank. He stated that the accused was ordered to perform the duties of the cashier on 11-11-1980 because the cashier was on leave on that day. Ghulam Rasool of Messrs Ghulam Rasool and Brothers who professed to run the fertilizer agency all alone appeared as P.W. 2 and stated that on 11-11-1980, he paid a sum of Rs.23,200 to the accused who had issued him a receipt. He also deposed in respect of Investigating Officer having taken into possession the photo copies of the documents Exhs.P.W.2/1 to 3 by virtue of memo. Exh. P.W. 2/1 attested by him. He denied that the accused told him on 11-11-1980 that there was a shortage of Rs.5,000 in the cash received by him as officiating cashier from him (said Ghulam Rasool) on 11-11-1980 or that he had told him that he had given him the full amount of Rs.23,200. He denied that the accused had in the presence of Noor Muhammad a Zamindar of Shamke Bhattian, and others asked him that he might have deposited Rs.5,000 less. He also denied that he was also summoned by M. Arif, Manager, on 12-11-1980 in that connection. Muhammad Khalid Khan, who was posted as Manager in this branch of the bank on 16-1-1980 appeared as P.W. 3. He admittedly was not Manager in the said branch at the time of the occurrence and, therefore, had to concede that he had no personal knowledge of the occurrence which had taken place before he was posted in the branch. His evidence on the details of the occurrence is of no consequence. His basic testimony in respect of his having sent a letter Exh. P.W. 3/1 drafted by legal adviser of the bank on the instructions of the Zonal Head and signed by him, to the S.H.O. for registration of a case against the accused. Ire also gave evidence in respect of production by him of three documents enumerated above which were taken into possession by the Investigating Officer. In cross-examination, he admitted that there can be genuine shortage on account of receipt by the cashier inadvertently of an incorrect amount. He also stated that the strong room cannot be closed till the receipt vouchers and the cash in hand do not tally. He, however, emphatically denied that for the sake of tallying the account with a view to close the strong room, a false receipt for a lesser sum or even a temporary receipt can be prepared in case of a genuine shortage. He explained that in such a contingency the procedure to be adopted is that the cashier immediately informs the Manager who when convinced that shortage is genuine, may contribute alongwith others to save the cashier and for that purpose the Manager and other members of the staff may take advances of salary from suspense account against vouchers signed by members of the staff as agree to take advances and contribute sums to the cashier to make-up the deficiency and close the strong room but if the Manager and other members of the staff do not contribute, then a report is made to Zonal Office in respect of shortage. He further stated that if the deficiency in cash is too much, then the Manager makes a voucher of the sundry deposit account in respect of cash shortage and thus tallies the accounts with the cash and closes the strong room. Abdul Haq, A.S.I. Investigating Officer, appeared as P.W. 4 and proved the seizure by him of the document P.W. 2/1 to 3 be virtue of memo. Exh. P.W. 2/3. After this prosecution evidence was closed.
5. The defence counsel had earlier filed an application Criminal Miscellaneous 91/85 for summoning some record of the bank which application had been allowed. He later filed another application Criminal Miscellaneous 92/85 for resummonging P.W. 1 alongwith the said record. He also prayed in the said application that till the recording of statement of P.W. 1 and production by him of the record recording of the statement of the accused be postponed. On a notice on this application, learned Special Prosecutor stated that he had absolutely no objection to the acceptance of this application, requisitioning of the said record and resummoning of P.W. 1. This application was also allowed and in consequence P.W. 1 Muhammad Arif, Manager of Shamke Bhattian Branch of U.B.L. at the time when the occurrence had taken place, reappeared 'on 29-1-1985. He was cross-examined by Mr. Sharif Hussain Bokhari Advocate, on behalf of accused. The said witness brought the original receiving cashiers' book and proved the copy of its sheet for 11-11-1980 as Exh. P.W. 1/2. He stated that the entries of 11-11-1980 in the said receiving cashier's book relating to Account No. 51 of Messrs Ghulam Rasool and Brothers were in the hand of the accused because cashier Ghulam Abbas was on leave and the accused was officiating as cashier on that day. He produced a carbon copy of the report which he made to the Zonal Office as per his Letter No. SKB/DMA/27/80, dated 12-11-1980, as Exh. P.W. 1/4. By means of said letter, he pointed out to the Zonal Chief that there was a glaring difference in receiving cashier's book and the C.D. Ledger of Account No. 51 of Messrs Ghulam Rasool and Brothers and in the receiving cashier's book, the cash entry is of Rs.18,200 instead of Rs.23,200 the receipt of which was with the account holder while ledger entry was of Rs.23,200. He also informed the Zonal Office that working of cash and posting of ledger was being carried out on 11-11-1980 by Pervaiz Mahmood. He prayed in the end of the said letter that the addressee, the Zonal Chief, may make enquiry into the matter which was of important nature. He also produced in the Court the original ledger and proved another copy of the ledger sheet as EXh.P.W.l/31A. He stated that note in red ink against entry, dated 11-11-1980 in the original ledger sheet re-dating to the Account of Messrs Ghulam Rasool and Brothers which read wrong entry posted may be corrected' was made by Fayyaz, Agricultural Credit Officer of the bank in his presence. He stated that when on 12-11--1980, he came to the bank and when vouchers and the ledger register were produced before him, he discovered the discrepancy, and called Fayyaz, the Agricultural Credit Officer to check up the matter and it was then that said Fayyaz made' the said entry in red ink in his own hand in his presence and initialled the same.
6. The prosecution evidence thus having finally come to an end, statement of the accused under section 342, Cr.P.C. was recorded. The accused stated when the sum had been given by Messrs Ghulam Rasool and Brothers to him, for deposit in their account, he did not count the same and had signed the credit receipt and the voucher which were for a sum of Rs.23,200 and had torn out voucher portion for retention as bank record and handed over the pay-in-slip book containing the deposit receipt of the sum of Rs.23,200 to-the party but subsequently at the closing hour when he counted the said cash, he found that the sum was deficient by Rs.5,000. He also said that by the dosing hour, the Manager, Muhammad Arif Khan and the Agricultural Credit Officer Fayyaz had already left the bank as they had to appear as witnesses in a departmental inquiry being held in Chauburji Branch of U.B.L. and he was the only officer left in the branch at that time and that, therefore, he contacted Ghulam Rasool and Brothers whose premises were just at hand but they refused to acknowledge that they had given the sum deficient by Rs.5,000 and stated that they had given full amount of Rs.23,200. He further stated that he could not close the cash book without balancing it with actual cash nor could close the staring room and, .therefore, he was constrained to prepare a fresh voucher now for a sum of Rs.18,200 in order to make the necessary balancing. He also stated that he had not destroyed the original cash credit voucher for a sum of Rs.23,200 and had kept it in his drawer after deleting his signature from it. He continued that next morning, he had informed the Manager that there was a shortage of Rs.5,000 and that in order to balance the account, he had charged the voucher and that he had done so to solve the problem faced by him. He also stated that he handed over the original voucher for a sum of Rs.23,200 from which he had deleted his signature as the new voucher for Rs.18,200 to the Manager. He further stated that he had made up short-fall in the funds of the bank within five days by depositing the sum of Rs.5,000 in the said branch by means of deposit voucher, dated 17-11-1980 Exh. P.W. 2/3. He denied that he had misappropriated any money belonging to the bank. He admitted that he had made entry of Rs.23,200 in the ledger after receipt of the said sum on the basis of the amount mentioned in the cash credit voucher, but added that when at the closing hour he discovered that the sum was deficient by Rs.5,000, he made an entry of having received a sum of Rs.18,200 in the receiving cashier's book. He had, however, not changed the entry of Rs.23,200 in the ledger in order to show the authorities that short-fall in the funds of the bank was due to his having not counted the cash at the time of its receipt. He stated that the witness had deposed against him due to departmental instructions issued by the Banking Council that all the cases of short-fall in the funds of the bank should be reported to police for registration of cases against the persons responsible for the short-fall (irrespective of the shortage being genuine or not). He stated that he would produce defence evidence.
7. On 4-5-1985, the accused produced Manawar Hussain Shad, Officer Grade-I U.B.L. Circle Officer, Lahore, as D.W.1 who produced the original of Letter No. SKB/DMA/27/20 of Muhammad Arif Manager addressed to the Zonal Chief, carbon copy of which, had earlier been exhibited as P.W.4/1. The carbon copy of the said letter exhibited as P-W. 4/1 shows 12-11-1980 as its date but the original produced from the record of the Zonal Office showed that after drawing a line of cancellation of the said date, new date 13-11-1980 had been substituted.
A photo copy of the said original letter was retained in the record of this Court as Exh. D.1 and the original letter was returned to this Witness. The said witness also produced the photostat of teleprinter message, dated 30-31982 and its confirmatory postal copy, respectively as D. 2 and D. 3. This message was from the Executive Vice-President of Head Office of U.B.L. Karachi addressed to Ziaullah Qureshi, Senior…
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