' The appellant, Mohammad Akbar Khan was tried by the 1Vth Additional Sessions Judge. Karachi, who, by a judgment dated 4th April, 1973, found him guilty of an offence under section 420, P. P. C., and sentenced him to imprisonment till rising of the Court and to pay a fine of Rs, 2,00,000 (in default R. I. For 12 months). A sum of Rs, 10,000 out of the fine, if realised, was ordered to be paid to the Bank of America, the complainant, as compensation. The appellant filed an appeal and at the time of admission my Lord the late Chief Justice, Tufail Ali A. Rehman, also issued a notice to the appellant to show cause why his sentence should not be enhanced. Both the appeal and the suo motu motion for enhancement were heard together and are being disposed of by this judgment.
2. I have heard Mr. Hassan Inamullah for the appellant, Mr. M. I. Memon for the State and I had also called Mr. Liaquat Merchant to find out if the decree in respect of the amount involved in the case had been satisfied. Mr. Liaquat Merchant has stated before me that in respect of the amount which is the subject-matter in this case a decree has been obtained but the same remaining unsatisfied as the appellant had disposed of his assets. Such statement of Mr. Liaquat Merchant was not controverted. I had called Mr. Liaquat Merchant as the motion for enhancement of sentence did require consideration of the fact and request for re-assessment of the case made by the appellant.
3. , The brief facts of the case are that the appellant Mohammad Akbar was a client of the complainant Bank, viz. The Bank of America, Karachi Branch. By an arrangement between the Bank and the appellant several loans amounting to a sum of about Rs, 7,00,000 had on different times been advanced to the appellant between the years 1964 and 1968. The complainant had extended these facilities because the appellant had executed agreements of general pledge, deed of hypothecation and mortgage of his properties at Karachi. Additionally, an arrangement had existed between the appellant and the Bank whereby the collection of the amount of bills payable to the appellant by other persons, including the Government were to be collected by the Bank and applied to the credit account of the appellant with the Bank in satisfaction of the amounts outstanding. To put it in other words, the arrangement was that if the appellant had to recover some monies from say a Government Department in respect of supplies made by the appellant he would hand over the relevant documents to the Bank for realisation o" the amount and credit the same to the appellant's over draft account. It seems the appellant used to borrow amount from the Bank to make purchases of goods for supply to his customers including some Government Departments.
4. The facts germane to the decision of this appeal are that between 28th September, 1968, and 14th November, 1968, seven separate bills drawn by the appellant on the Audit Officer, Industries, Supply. And Food Department of the Government of Pakistan, were handed over by the appellant to the Bank for collection. The arrangement that existed between the appellant and the Bank was that on submission of each bill he could obtain an advance from the Bank to the extent of 80% of the amount stated in the bill. The total amount of these 7 bills was Rs, 2,97,420 and it was arranged that in respect of these 7 bills the appellant could at the maximum obtain a sum of Rs, 2,00,000 from the bank. Each one of these 7 bills was sent to the complainant Bank together with a forwarding letter signed by the appellant as Managing Director of Northern Electric Company Limited. In each one of these letters it was stated that the related documents (Bills) accompanied the forwarding letter. Such forwarding letters also contained a request to the complainant Bank to collect the amount and also to pay him 80%, of the amount of the bill as an advance by crediting the same to his account. These 7 bills were for varying amounts and the total amount of 7 bills was Rs, 2,97,420. On the presentation of each bill the appellant did receive 80% amount of the bills and the total amount paid to the appellant was Rs, 2,00,000 as per the arrangements made with the Bank. These bills were forwarded by the complainant Bank to the Audit Officer of the relevant department but the same were not paid. In fact, no amount was outstanding against the said department so that the question of the department honouring the bills did not arise. The case of the complainant is that all these bills were fake documents and the same were produced solely with a view to obtain an amount of Rs, 2,00,000.
4. The complainant Bank examined Menu Burger, the Assistant Manager of the Bank of Amercia and Ali Hassan Khan, Superintendent in the Audit Office of the Industries, Supply and Food Department of the Government of Pakistan. * While the former of the two witnesses disclosed . The entire prosecution case as has been_stated above, the latter witness stated that the complainant Bank did transmit the demand for monies payable to the appellant but such demand letter did not have the relevant annexures, viz. The bills. He admitted that there was some correspondence between the complainant Bank and his department in regard to the bills but such bills were not traceable in his office. On the other hand, the appellant has admitted the entire case of the prosecution and has set up a case that being a client of the Bank he required a clean overdraft to the extent of Rs, 2,00,000 between September and November 1968, and by an arrangement with the Bank it was stipulated that the appellant should send such letters requesting the Bank to collect the amounts from the department and obtain 80% of the face value of such bills as were mentioned in the letters, subject of course to the limit of Rs, 2,00,000. He has admitted having written those letters and having received the amount. In short the entire controversy in this case is in regard to the appellant having submitted bills as being payable by the Government Department.
The relevant portion of the statement made by the appellant before the trial Court has been reproduced by the trial Court in paragraph 4 of the judgment and it is therefore, not necessary to mention the same in details. The appellant examined no witness in his defence.
5. In view of the admission of the appellant the sole point that requires consideration is whether the 7 bills payable by the Audit Officer to the appellant were also submitted as annexures to the seven letters written by the appellant to the Bank. These letters are couched in almost the same language and it will be profitable to reproduce one of them in order to understand the correct import of the letters and to find if the bills were submitted as annexures to the letters. One letter dated 11th November, 1968 (Exh. 8) reads as follows :- {{TABLE TEXT}} N. E. C. NORTHERN ELECTRIC COMPANY Lit'.
NEW HEAD OFFICE Haq Nawaz Building 11 West Wharf Karachi (Pakistan)
Cable 'NORELCO' KARACHI, Phones : PBX-222571-3-4 11th NOVEMBER, 1968.
The Manager, Bank of America NT & SA McLeod Road, KARACHI Re : SALES proceed of our 8111 No, 2341, dated 23rd October, 1968 for Rs, 53,280.00 ' Gentlemen !
' We are forwarding the aforesaid bill for Rs, 53,280.00 together with the relative documents and would request you to kindly present the same for collection of payment to : ' The Audit Officer Industries Supply & Food Government of Pakistan. KARACHI ' The relative 80% advance of the bill amount may kindly be credited to our current account, immediately, under advice to us.
' Very truly yours ' NORTHERN ELECTRIC COMPANY LTD.
(Sd.) M. A. TAREEN, ' ENCL : MANAGING DIRECTOR.
' CC. Audit Officer, Industries Supply & Food, Karachi SEAL Bank of America NT and SA KARACHI BRANCH UD 6209 3085 Karachi Pakistan...........................
6. On a reading of these 7 letters one finds that the same statement in regard to the amount of the bill referred to the related documents touching the transaction between the appellant and the Audit Officer, a demand of 80% advance of the bill amount and a further endorsemet that the copy of the said letter had also been forwarded to the Audit Officer. Together with the letter the complainant had also produced copies of the forms relating to collection instructions and receipts.
These documents also make a reference to the details of the bill as well as an authority to the Bank to collect the amount. I have given a very careful consideration to the case of the appellant who has stated that these bills bad not been submitted and he had only written the forwarding letters and further that he did so because by an internal arrangement the officers of the Bank bad persuaded him to write such fake letters in order to help him obtain the overdraft. Such allegations have been denied by Manu Burgar who is a responsible officer of an organisation of the status of the Bank of America and who on the other hand may have sympathy with the appellant so as to dissuade him from making false allegations against the appellant. The appellant, as stated above, has not examined any witness in his defence to substantiate his case. What is more that the complainant Bank would not possibly send a mere demand letter to the Audit office of a responsible Government Department without any bills from its clients. There is correspondence on the subject and the complainant Bank had written a letter to the Audit Officer on 7th January, 1969 (Exh. 15) demanding the amounts related to the bills that had been sent. In this letter it has been clearly stated by P. W. Manu Burgar that the bills had been submitted to the Audit Officer for payment to be received by the Bank under a power of attorney granted by the appellant in its favour. A request is contained in this letter for early payment. This letter was replied to by the Audit Officer on 17th January, 1969 (Exh. 17) in which a reference was made to a Power of Attorney executed by the appellant in favour of the complainant Bank. The Assistant Audit Officer who had written that letter stated that the bills had not been received in the office and he further stated that his office record disclosed that the Power of Attorney which had been registered in the Audit Office on 21st August, 1964, had been earlier cancelled. In this letter a veiled threat was also extended to the Bank as to how these bills have been discounted so that they should report the matter to the Auditor-General of Pakistan. The complainant Bank then wrote a letter to the appellant on 6th February, 1969 (Exh. 20) asking him to supply some information in regard to these bills. This letter discloses that earlier there was some verbal discussion between the appellant and Mann. Burgar when the appellant had told the latter that the file concerning the documents was not traceable immediately. However, Manu Burgar had written him a letter that during this fortnight the file must have been located and he requested for the full particulars. This letter was not replied by the appellant so that Manu Burgar on 1st March, 1960 wrote another letter (Exh. 21) almost to the same effect in which he asked the appellant to make efforts to provide the information and the documents as the complainant Bank had to reply to the letter from the Audit office. A notice was then given by the complainant Bank to the appellant's Company on 19th September, 1969 (Exh. 22) in which besides making demands for the documents it was stated that the appellant had made a promise to furnish the information and submit some documents but he had failed to do so. This notice was replied to on 30th September, 1969 (Exh. 24) by the Advocate for the appellant in which it was stated that the original letters requesting the Bank to discount the Bills were only by way of book-keeping mechanics in order to facilitate the credit facilities in favour of the appellant. It would thus seem that while the amounts were collected by the appellant between September and October, 1968, it was only after a year that the appellant raised a defence in the reply to the notice from the complainant Bank that these letters contained false particulars in regard to the bills payable by the Audit Officer and such particulars had been given only after prior arrangement with the officials of the Bank in order to accommodate the appellant. For all these reasons I am left in no doubt that the 7 letters written by the appellant to the complainant Bank asking for 80% of the face value of the bills did carry the fake bills as annexures. No doubt, such bills according to the Audit Officer were not available in their office. What may be the reasons for the Audit Officer to so state has been explained by the trial Court on the hypothesis that the appellant was able to succeed in removing or getting the bills removed from the Audit office in order to destroy the traces this evidence. All Hassan Khan, the Superintendent, in the Audit office was examined in Court and he was directed to trace the bills in dispute but stated that such bills were not traceable. This 'Witness had however, stated that even earlier his Audit officer had asked him to trace the bills of this case but the same could not be traced. It is of course not easy to find out who was the person actually responsible for removal of the bills but from the correspondence carried on between the complainant Bank and the appellant it is not difficult to arrive at a conclusion that the requisite letters for advance did carry the bills as annexures. In that context I may also state that normally no Bank would advance any money to any person in respect of bills drawn on a third party unless the bills, whether genuine or fake, were produced before the Bank. In this case I am Convinced that some fake bills had been submitted by the appellant to the Bank in order to obtain this amount o Rs, 2,00,000.
7. In these circumstances, I see no force in this appeal which dismissed.
8. The next question that has engaged my attention is that o sentence. Mr. Hassan Inamullah who was lukewarm in arguing about the merits of the case has opposed the motion for enhancement of the sentence on the ground that the transaction related to the year 1968, that the appellant was now aged about 48 years and that he was not in good health. In regard to bad health of the appellant no evidence has been produced. The appellant has also not appeared in Court so that it cannot be said that he was in bad health. The other ground that Mr. Hassan Inamullah urged was that in respect of this amount there was a decree of this Court passed on the original side and he stated that such decree was a consent decree. I was anxious to find if that decree had been satisfied because if that was so it would be a relevant consideration in at least the matter of sentence. I was told by Mr. Hassan Inamullah that Mr. Liaquat Merchant had appeared in that suit and since Mr. Liaquat Merchant was present in Court I asked him if the decree had been satisfied.
Mr. Liaquat Merchant stated that there was a decree against the appellant for a sum exceeding 9,00,000 of rupees which he owed to the Bank but nothing has been realised as the appellant has disposed of all his assets. In these circumstances, I am of the view that the sentence awarded is inadequate. I enhance the sentence to imprisonment for a period of one year and I also maintain the sentence of fine imposed in this case. The B appellant shall be forthwith arrested and remanded to custody to serve the sentence. In respect of the sentence of fine a Bank guarantee has been furnished by the appellant at the time of admission of this appeal. The Nazir shall forthwith take steps to realize the amount. I also vary the order of the trial Court in respect of compensation to the Bank so that the entire amount of fine, if realized, shall be paid to the complainant Bank as compensation.