1. ' MUHAMMAD AFZAL SOOMRO, J.---By this appeal the appellant Syed Siraj Hassan has challenged the judgment dated 11-11-2003 passed by VII Judicial Magistrate, Karachi-Central in case No.168 of 2002 whereby the respondent/accused were acquitted under section 245(1), Cr.P.C.
2. ' The brief facts of the case are that the appellant filed direct complaint under section 200, Cr.P.C.
3. For offences punishable under sections 409, 420, 468 and 471, P.P.C. Against respondents Nos.1 to 3.
4. The appellant is stated to be the sole proprietor of M/s International Printers. The respondent No.1 is the brother-in-law (husband of sister) of respondent Nos.2 and 3 while the respondent No.3 is brother-in-law (husband of sister) of the appellant. The appellant started business of printing under the name and style of M/s Sharp Printer and M/s International Art Printers. The appellant is stated to have made respondent Nos.2 and 3 as partners in the said business. The said partnership is stated to have been dissolved amicably on 26-8-1995 and the appellant became the sole proprietor of the above stated firms with the consent of respondents Nos.2 and 3. Thereafter the record of the firm was examined and misappropriation of a colossal amount was found. It further revealed that respondent No.3 showing himself as owner of the firm received from M/s Fateh Sports War Limited Hyderabad a Cheque bearing No. 90465544 dated 9-9-1995 for Rs.11033/50. The said cheque, is stated to have been deposited by respondent No.3 by opening a fictitious A/C No.1137 in the name of firm with Habib Bank Limited. Bara Bus Stop Branch, Nazimabad, Karachi in collusion with respondent No.1, who is stated to be posted as Manager in the said branch of. Habib Bank Limited.
5. ' At trial, the charge was framed to which the respondents did not plead guilty and claimed to be tried.
6. ' The appellant was examined as C.W.1 and C.W.2 Saeed Ahmed and C.W.3 Abdul Qudoos were also examined: They all were also cross-examined and the appellant closed his side. Statements under section 342, Cr.P.C. Of respondents were also recorded. They produced their witnesses D.W.1 Syed Salman Aziz and D.W.2 Jawaid Shaukat. Both the above witnesses were examined' and cross- examined. Shamsul Hassan (Bank Manager, HBL) was examined as a Court witness and he was also cross-examined. Thereafter on the basis of additional evidence recorded under section 540, Cr.P.C., the statements under section 342, Cr.P.C., of respondents were again recorded. They claimed their innocence and did not wish to lead any further evidence.
7. ' After perusal of, the record as well as the written-oral arguments of the counsel, appearing for both the parties, learned trial Court framed the following points for determination:--
(1) Whether accused Kamran Ali received the Cheque No.90465544 dated 2-9-1995, amounting to Rs.11033.50 from Fateh Sports Wear showing himself to the Sole Owner of International Printing Press?
(2) Whether accused Kamran Ali opened a fictitious A/c No.1137 at HBL, Bara Bus Branch, Nazimabad, in connivance of accused Tahir Ali, in the name of International Art Printers and deposited the Cheque No.90465544 dated 2-9-1995, amounting to Rs.11033.50 received from Fateh Sports Wear for the purpose of misappropriation?
(3) What offence, if any, is made out against accused Syed Raees Ahmed?
(4) What should the judgment be?
8. ' I have heard the learned counsel, appearing for the appellant as well as learned counsel appearing for the respondents and gone through the record, placed before me.
9. ' The learned Advocate for the appellant has contended that the trial Court has failed to appreciate that from all the four corners the involvement of the respondents was proved and therefore the trial Court ought to have convicted the respondents and further that the impugned judgment has resulted in serious miscarriage of justice.
10. ' He further contended that the trial Court has failed to appreciate the complicity of the respondents in commission of the offence which was proved from the documentary evidence and further that as the respondents during trial have failed to explain their position as to the fraudulent act committed, in all fairness, the trial Court ought to have convicted the respondents for the offence. He further contended that the trial Court has committed error while not appreciating that the respondents have committed the offence under section 419, Cr.P.C. At the time when he approached the Nazimabad branch, Karachi of Habib Bank Limited for opening forged account by showing himself as proprietor of M/s International Art Printers. He further contended that this aspect of the matter has been completely overlooked by the trial Court. He also contended that it was proved that forged documents were prepared and used by the respondents as such the offence under sections 468, 471, P.P.C. Was proved from all the four corners and by ignoring this aspect the trial Court acquitted the respondent, which judgment is liable to be stuck down. He also contended that the trial Court has failed to appreciate that the cheque had been withdrawn on 2- 9-1995 while the partnership was dissolved on 26-8-1995 and that such cheque was issued in the name of the firm for which the respondent No.2 had no right to receive. He also contended that this view of the matter the fraudulent and dishonest act on the part of the respondents proved involvement of the respondents from all the four corners. He also contended that respondent No.1 was not only guilty of committing the offence but he is also guilty of misconduct being bank employee and hence he ought to have been penalized under the P.P.C. As well as under the relevant laws as he has misused his authority. Lastly, he contended that the trial Court has erred in holding that the complaint is outcome of the family dispute and that the case against the respondents does not stand proved and further that such a finding is against the admitted position on record inasmuch as the- impugned judgment is the result of misreading and misappreciating the evidence brought on record therefore the impugned judgment is liable to be set aside.
11. ' On the other hand, the learned Advocate for the respondents fully supported the impugned judgment and contended that the same has been passed after taking into consideration all the material on record. He prayed that the appeal be dismissed.
12. ' I have considered the arguments, advanced on behalf of respective parties.
13. ' C.W. Abdul Qudoos has clearly stated in his evidence that besides the other discrepancies in the accounts of the firm owned by the appellant, he found that a cross cheque of Rs.11,037 issued in the name of appellant's firm (M/s International Art Printers) by M/s Fateh Industries Hyderabed was received by respondent No.2, posing himself to be the owner of said firm, was deposited in an account at HBL Bara Bus Stop Branch, North Nazimabad, Karachi and was got encashed with the collaboration of respondents Nos.3 and 1. However, upon correspondence with bank making query about the encashment of the said cross cheque, the bank on its own accord without the demand of the appellant sent a pay order of the said amount but the appellant did not accept the same and returned to bank asking the bank about the account number and its holder but no such information was supplied to him. The learned trial Court has questioned the legal value of the statement of this witness by observing that he could not produce any appointment letter, in respect of his being the authorized person to audit the account of the firm and so also the witness was not a Chartered Accountant. Mere fact that C.W.-Abdul Qudoos failed to produce Appointment Letter showing him to be the authorized person to audit the account of the firm and his not being a Chartered Accountant does not absolve the accused persons of their guilt.
14. Statement of Bank Manager that due to rush of work the amount of the said cross cheque was mistakenly deposited in Account No.CD1137, being maintained in the names of respondents Nos.1 and 2 is also surprising and does not appeal to my mind for the reasons firstly, how a cross cheque, issued in the name of a 'Firm' could be deposited in an account being maintained in the names of exclusive persons; secondly, that who took that cheque to the said bank where the firm of the appellant does not maintain any account; and thirdly, that why deposition of said cross cheque was made in the account of respondents Nos.1 and 2.
15. Consequently, I am of the considered view that the crucial point involved in this case appears to be that the cheque, in question, being crossed one, was said to have been obtained by respondent No.3, Syed Raees Ahmed, which was, otherwise in the name of the firm, and then he is said to have deposited/credited the , same in his personal account, with active connivance of the Bank Officer namely Muhammad Tahir Ansari, respondent No.1, and therefore, the duty of trial Court was to have elaborately discussed such aspect of the case, which does not appear to have been done by it.
16. Accordingly, I remand the case to the trial Court for re-framing its points in view of the observations, made as above, by re-examining the evidence.