' The appellant herein was tried by the learned Special Judge-cumInquiry Officer, Anti-Corruption, Hyderabad, for offences under section 409, P. P. C. Read with section 5 (2) of Prevention of Corruption Act II of 1947 for having committed the criminal breach of trust of Rs, 1,33,556.22 and sentenced him to undergo R.
1. For one year and to pay a fine of Rs, 1,34,000 ; in default of payment of fine, he was directed to suffer R. I. For three years more. For awarding lesser sentence of only one year of imprisonment, the learned Judge had observed that the case had lingered on for about six years and the appellant had also lost his job. The appellant has filed this appeal against the judgment of conviction and sentence.
2. The facts of the prosecution case, briefly, are that the appellant was appointed in March, 1967 as a salesman in Rural Supply Corporation Ltd., Sales Depot at Tando Jam. He took over the 'charge on 3rd April, 1967 from P. W. Khudadino Shah, his predecessor. The 'Charge Fard' (Exb. 3) was signed by both, the appellant, as well as, Khudadino Shah and was countersigned by the District Manager Moula Bux (P. W. 1). The details of the stock handed over to the appellant were written in the Charge Fard. The appellant was also given Rs, 999.86 in cash, for which he had issued the receipt (Exh. 25).
3. The appellant had received, from the District Manager P. W. Mania Bux and other sources, at different times, a total stock of 7,319 bags of Ammonium Sulphate, 6584 bags of Urea, 75 bags of Ammonium Sulphate Nitrate and 900 bags of Triple Phosphate under receipts duly signed by him.
Exhs. 4, 5, 7, 8, 9, 10 and 13. Most of the stocks were entered by the appellant, in the stock register (Exh. 6), which was maintained by him. Relevant entries were made in Exh. 6-A at page 338 ; Exh. 6- B at Page 581 ; Exh. 6-C at page 41 and Exh. 6-D.
' The appellant had received the following stocks from Hyderabad Depot and the Punjab Depot and had signed the receipts. The other stocks were entered in the Stock Register (Exh. 6) wherein, the entries, in respect of receipt of the stocks were signed by him.
' The details of the Stocks received by the appellant, as per receipts signed by him were as under :-
(I) On 8th April, 1967-2000 bags of Ammonium Sulphate and Triple Super Phosphate as per. Receipt Exh. 4 signed by the appellant.
(ii) 1st June, 1967-200 bags of Triple Super Phosphate as per receipt (Exh. 5).
(iii) 3rd June, 1967-200 bags of Urea as per entries made by the appellant in Stock Register Exh.
6. Entry is Exh. 6-A.
(iv) 13th June, 1967-400 bags of Urea as per Exh.
8.
(v) 8th July, 1967-1000 bags of Ammonium Sulphate and 200 bags of Urea, as per Exh.
9.
(vi) 4th September, 1967-200 bags of Triple Super Phosphate and 200 bags of Urea as per Exh.
10.
(vii) 11th September, 1967-3560 bags of Urea as per monthly statement Exh.
11.
(viii) 5th October, 1967-1540 bags of Urea statement Exh.
12.
(ix) 9th October, 1967-350 bags of Triple Super Phosphate as per entry itv Stock Register Exh. 6 at Exh. 6-B
(x) 24th October, 1967-1000 bags of Ammonium Sulphate as entry in Stock Register Exh. 6 at Exh,
(xi) 1st December, 1967-2000 bags of Ammonium Sulph;,te as per Exh.
13.
(xii) 4th January, 1968-400 bags of Ammonium Sulphate as per entry in the Stock Register Exh. 6 at Exh. 6-D.
' These entries were shown, quality-wise, in the statement (Exh. 21) prepared by the District Manager P, W. Moula Bux Kazi.
4. On 1st April, 1968, according to the general orders, P, W. Rehmatullah, District Manager, Rural Supply Corporation, Sanghar, had gone to the sale depot, in charge of the appellant, at Tando Jam, for general physical checking. He completed the physical checking of the depot on 3rd April, 1968.
Lie noted the balance from the Stock Register and then counted the stocks physically lying in the stores. He detected the shortage of 3070 bags of Ammonium Sulphate. 200 bags of Triplicate Super Phosphate, 276 bags of Urea, 40 Clow and 2263 bags of Urea 50 Clow. He found that some bags were under weight and some were torn. He got all the bags refilled according to the standard weight. Still there was a shortage of 198 bags of Ammonium Sulphate, and 44 bags of Triple Super Phosphate and 167 bags of Urea 50 Kilo. He prepared the report, in respect of the shortage and the .Number of missing bags (Exh. 33). It was signed by him as well as, the appellant. When he was called upon to explain the shortage, the appellent could only say, that he had sold the stock to some persons on credit. Such a note was made by him (Rahmatullah) in the column of remarks in Exh.
33. The appellant requsted P. W. Rehmatullah to give him one day's time for crediting, the amount of the missing bags. He left for Hyderabad instead and did not contact him. During the checking, the appellant never informed P. W. Rehmatullah of any theft having been committed in the godown. P. W. Rehmatullah, under the circumstances, sent a report to his Head Office (Exh. 34). He also wrote a letter Exh. 35, to the Head Office that the appellant was not co-operating.
5. Moula Bux (P. W. 1) was the District Manager of the Corporation. He used to inspect and superwise the accounts of the Sale depots in four (4) Talukas, which were under his charge, including the Depot at Tando Jam. After completing the inspection, he used to submit consolidated statement to the head office. When P. W. Moula Bux reached Hyderabad, he came to know of the shortage, detected by P. W. Rahmatullah Pahore, on 6th April, 1978. He also reached Tando Jam on 7th April, 1978. On inquiry by him, the appellant admitted the shortage and stated that he had given away the missing bags on credit to his friends. Under the standing orders, the appellant was not authorised to sale any of the Government material on credit. When demanded by P. W. Moula Bux, the appellant neither gave the record, nor the list of the persons, to whom he had given the Fertilizer on credit. The appellant had requested for one day time for crediting the amount of the bags, found short, which he was allowed. The appellant was asked to produce A the Stock Register, but he refused it, on the plea that it was not complete, and promised to bring it on the next day, but never came again. P. W. Moula Bux sent a person on 9th April, 1978 after the appellant, who saw the appellant at the Bus stop, but the appellant slipped away and never turned up. When P. W. Moula Bux went to inspect the depot, he found the Depot locked. He had seen the statement Exh. 33 prepared by P. W. Rahmatullah Pahore. Under the circumstances, he sent a registered letter Exh. 14 to the appellant, for his explanation, but the latter was returned undelivered. Such an information was telegraphically, sent to the head office at Lahore, from where telegraphic instructions (Exh. 15) were received to suspend the appellant immediately and to report the matter to the Police Anti- Corruption. In the meantine a telegram Exh. 16 was received from the appellant for two weeks leave, which was refused. Since the appellant had absconded with the record, P. W. Moula Bux approached the District Magistrate as per Exh. 18 for forfeiture of the stocks, stores in the depot. In presence of the Magistrate, the lock of the depot was broken opened and the stocks lying in it, were checked under the mashirnama Exh. 19, which was prepared, in presence of the mashirs and the Magistrate. One godown of the depot contained 10 bags of Urea and 21 bags of Ammonium Sulphate. The other godown of the depot was inspected and the stocks were checked on the following day. It contained 1000 bags of Ammonium Sulphate, 215 bags of Urea, 30 bags of Ammonium Nitrate and 10 bags of Tripple Super Posphate. It was further found that appellant had transferred .800 bags of Urea to the depots of other depot-holders. After adjustment of the stocks recovered, as well as, transferred to other depots, it was found that the appellant had dishonestly misappropriated the fertilizer-stocks valued at Rs, 1,33,556.22 P. W. Moula Bux, therefore, lodged a written complaint addressed to the Deputy Superintendent of Police Anti-Corruption Establishment on 27th April, 1968 and the case was registered by the Circle 0 ei cer of Hyderabad District on 13th June, 1970. During the investigation the necessary documents were seized and the witnesses were examined and the appellant was arrested. Sanction for prosecuting the appellant was obtained from the General Manager of the Corporation. After completing the investigation, the case was challenged in the Court.
6. The case of the appellant, on the other hand, was of denial of the prosecution allegations, in respect of misappropriation of the fertilizer stocks valued at Rs, 1,33,556.22. He asserted that the witnesses were interested and were accordingly deposing against him. He however admitted being a public servant, as he was appointed as a salesman, in the Rular Supply Corporation Limited. He further admitted having been entrusted with the alleged stock of fertilizer, which was duly entered in the Stock Register. He also confirmed that he had transferred 800 bags of Urea to other depots. He further admitted having signed the statement Exh. 33 regarding the fertilizer stock position, as on 3rd April, 1968, but denied, if there was any shortage disclosed in it. He explained, that in the column showing the shortage, the columns relating to the shortage and remarks, were left blank at that time. He also denied having confessed before P. Ws. Rahmatullah and Moula Bux that he had disposed of the missing stocks, on credit, to his friends. He also denied having deserted his duties. He claimed that he had not received any registered notice.
' He had however, admitted that he had received Rs, 291 and 30 30 as rent of the go down.
7. In this defence, the appellant had examined Farooq Ahmed, Assistant Accountant, in the head office of the Corporation at Lahore, who had only produced the appointment order of the appellant as Exh.
42. In his cross-examination, this defence witness, had admitted that appellant had sent Rs, 87,700.08 by demand draft to the head office, at Lahore, as sale proceedings of the fertilizer, and Rs, 10,398.66 were sent by his predecessor Allandino, which were duly credited. Nothing was stated by this witness, in respect of the allegation of criminal breach of trust of Rs, 1,33,556.22,
8. The second witness was Muhammad Safdar, Assistant Accounts Officer R.. S. C. C. In the Head Office at Lahore, who had inspected and audited the account or Tando Jam sale depot on 12th December, 1977 ; but had not physically verified the fertilizer stocks stored in the godowns. He had only audited the accounts, on the basis of the books maintained by the appellant, but had not physically verified the stock position. The accounts were verified and found correct as per his report Exh. 44, which does not show, as to from what date to what date, the accounts were checked.
9. The third witness is Moosa Khan S. D. I. Who had received an application dated 29th March, 1968 from the appellant, in respect of a theft of fertilizer. The application was forwarded on 18th April, 1968, to the S. H.
0. Tando Jam, for legal action. The witness was unable to say, whether any case was at all registered, by the police, and what was the result. The witness had admitted that, if any cognizable offence was indicated, the F. I. R. Would have been drawn up, and the case would have been registered.
10. The prosecution examined seven witnesses in support of their case. Moula Bux P. W. 1 was the District Manager in the Corporation. He had four Talukas in his charge, where the sale depots were situated. He used to supervise the accounts, relating to the sales and also inspected the accounts and submitted the consolidated statements to the Head Office, at Lahore. P. W. Moula Bux had narrated the procedure that the appellant used to receive the fertilizer stocks and sale them, on down cash payment. The appellant was required to submit weekly and monthly returns to the office of the District Manager. The duty of the appellant, further, was to remit the sale proceeds to the Head Office, through demand drafts. He was not allowed to accumulate the accounts and retain with himself, more than Rs, 1,000 under any circumstances. The appellant was to maintain stock register, sale register, railway receipt register, demand draft register, weekly and monthly returns.
11. The appellant had taken the charge lard' from P. W. Khuda Dino Shah as per Exh. 3 which the appellant as well as, P. Ws Khuda Dino Shah and Moula Bux District Manager, had signed. The witness had given the date wise, details of the receipt of the fertilizer stocks and their disposal.
While comparing them with the monthly statement, he had given the details of the shortage. The fertilizer stocks that were found in the godowns on 11th and 12th of July, 1968 were shown in the mashirnama Exhs. 19 and 20. The evidence further discloses that the appellant had transferred some 800 bags of Urea, to other depots. The fertilizer misappropriated as per the statement Exh. 21 amounted to Rs, 1,33,556.22.
12. When P. W. Moula Bux had visited the godowns, he had contacted the appellant, who on inquiry, had admitted to Moula Bux that there was a shortage, because he had given the material to his friends, on credit basis. When Moula Bux demanded the record mentioning the list of the persons, whom he had given the material on credit, the appellant could not produce it, and had, in fact, absented himself and never turned up again in the office.
13. The next witness is Khuda Dino Shah P. W.
2. He was the salesman in the R. S. C. C. He had handed over the charge, to the appellant on 3rd April, 1967. The charge lard' was prepared, which was signed by him, as well as, the appellant, containing the details of the stocks, physically checked and delivered to the appellant. Cash of Rs, 999.86 was also paid to the appellant, against receipt Exh. 25, which was duly signed by the appellant, who was also handed over all the registers and cash books mentioned in the charge lard'. This witness was not cross-examined on the point of the allegation of criminal breach of trust.
14. Barkat Ali is P.W. 3, who was the Circle Officer, Anti-Corruption, District Hyderabad. He had recorded the F. I. R. Exh. 28 and had registered the case against the appellant. He examined P. Ws.
Moula Bux, Rahmatullah, Khuda Dino Shah and Abdul Majeed, whereafter he was transferred.
15. After him, the prosecution examined Muhammad Usman P. W.
4. He was the Circle Officer, Anti-Corruption Establishment Hyderabad. He had arrested the appellant and had put up the challan in the Court. He had produced the sanction for the prosecution of the appellant, Exh. 29-A.
16. P. W. 5 is Rahmatullah. He was the District Manager R. S. C. C. Corporation Sanghar, during the year 1966. On 1st April, 1968 he had conducted the general physical checking of fertilizer Depot at Tando Jam and completed it on 3rd April, 1968. He detected shortage of 3070 bags of Ammonium Sulphate, 200 bags of Triple Super Phosphate, 276 bags of Urea 40 Kilo and 2263 bags of Urea 50 Kilo. Some bags were found under weight and some were torn. He got all the bags refilled according to standard weight ; but still there was shortage of 198 bags of Ammonium Sulphate, 44 bags of Triple Super Phosphate and 167 bags of Urea 50 Kilo. He had prepared the report of the shortage and missing number of the bags as Exh.
33. He had also confronted the appellant about the shortage. The appellant had admitted the shortage and explained that he had given the bags to some persons on credit, and such a note was made by Rahmatullah in his report Exh. 33, in the column of 'remarks'. The appellant had asked for one day time to credit the amount of missing stocks. Instead of depositing the amount, he absented himself from duty. Such a report was sent by P. W. Rahmatullah to the Head Office Exhs.
34 and 35.
17. P. W. 6 is the mashir, Khair Muhammad, shopkeeper. He was a B. D. Member at Tando Jam Committee. He was made a mashir. In his presence, the fertilizer godowns were opened, in presence of the Magistrate. The Mashirnamas Exhs. 19 and 20 were prepared in his presence and stocks, found lying there, were noted down in his presence and he had affixed his signatures. One godown contained 10 bags of Urea and 21 Ammonium Sulphate. Second godown contained 1009 bags of Ammonium Sulphate, Urea 215. Ammonium Sulphate Nitrate 29 (A Class) and one bag 'B'
Class, total 30. Triple. Super Phosphate 93 'A' Class and 8 Class, total 101.
18. I have heard at great length the learned counsel, Mr. Niamatullah Qureshi, appearing on behalf of the appellant.
19. The first contention is that the appellant himself had loged the report on 29th March, 1968 at Tando Allahyar police station, and in support thereof, had examined in defence Moosa Khan D. W. 3, in respect of the theft of the fertilizer stocks. Therefore the appellant was not responsible for the shortage, as is alleged.
' This contention of the learned counsel has no force. It is in evidence of D. W. Moosa Khan that some application was made by the appellant in 1968, which was forwarded for investigation to the S. H.
0. Tando Jam Police. It is rather strange, why the application was not made to the Police at Tando Jam which had the jurisdiction to investigate the case. It is further strange, to note that why the application was made to the Police at Tando Allahyar, when the appellant knew that there was a Police Station at Tando Jam. Since the application was made in March, 1968, D. W. Moosa Khan, had no knowledge of the facts, as he was posted at Tando Allahyar in 1973. There is, therefore, no evidence as regards the theft as well as the result of the application and as to the action taken on it, by the Police. The appellant in his statement, under section 342, Cr. P. C. Had not raised any such plea that the theft of the fertilizer was committed in the depot, before the checking took place and that the shortage was, as a result of the theft. Mere oral statement about the filling of the application and reporting the theft, appears to be an effort to create a false plea and also to misguide the Police in the investigation of the case.
20. P. W. Rahrnatullah had taken up the checking of the fertilizer stocks. He had prepared the statement, mentioning the details of the fertilizers bags available in the godown (Exh. 33). At no time, the appellant had pleaded theft, before P. W. Rahmatullah. The shortage was reported to the District Manager, as well as, Head Office, but the appellant, at no time, had informed any of them officially, about the theft. In support of the plea of theft, a letter written by D. W. Moosa Khan to the S. H.
0. Tando Jam Police Station, wherein, a mere reference is made, regarding an application. There is nothing to show that application was about the theft of the fertilizer. The application itself was not produced. It appears that this plea of theft, was not taken up seriously and was dropped, realising that it had no legs to stand on. On one hand the plea of theft was put forth. On the other hand, the appellant had contended that unaccounted stocks were given, on credit, to his friends. As a result of contradictory pleas advanced by the appellant, the plea of theft is a mere concoction, and cannot be considered in favour of the appellant.
21. It is next argued by the learned counsel, that there was inordinate delay in lodging of the F. I. R., which creates doubt on the entire prosecution version. It is contended that the shortage shown in the F. I. R. Is different from that shown in the statement Exh.
33. This argument is opposed to facts on the record. The physical checking of the stock was taken up by P. W. Rahmatullah on 1st April, 1968. The approximate misappropiation roughly estimated, at that time, was about Rs, 1,00,000 and such a report was submitted to the Regional Manager Hyderabad. The physical stock taking report was prepared the next day, on the request of the appellant, in order to enable him to complete the record, by making the entries regarding the sales, labour charges etc. When P. W. Rehmatullah went to inspect the godown, on the next day, he found the appellant absent. Accordingly, cash in hand, expenditure and sale from 1st February, 1968 onwards, and the original vouchers of expenditure, incurred, on physical verification, made by the appellant could not be collected by P. W. Rahmatullah. Therefore, an incomplete report (Exh. 34) was immediately submitted to the General Manager of the Corporation at Lahore, under the covering letter Exh.
35. When the statement (Exh. 33) was prepared on the basis of physical stock checking, on 3rd April, 1968 the appellant was present. He had signed the statement Exh.
33. In the remarks column, it was mentioned by P. W, Rahmatullah that there was too much difference between the stock, according to stock register and the stock actually accounted. For the shortage, P. W. Rahmatullah, had put a note in the 'remark' column, what the appellant had told him. The actual words of the appellant were noted down reading "as stated by salesman, the stock has been given to certain persons, on credit, on his own risk."
22. The application (Exh. 17) to the Deputy Superintendent of Anti-Corruption Police, Hyderabad is dated 27th April, 1968 on the basis of which, the case was registered. It includes the fact of checking the go down at Tando Jam by P. W. Rehmatullah on 3rd April, 1968. He found the shortage of 3070 bags of Ammonium Sulphate, 200 bags of Triple Super Phosphate, 276 bags of Urea K. L. W. And 2263 bags of Urea 50 K. L. W., were found short. It is true that the value of thefertilizer was given, as about Rs, 99,665 Exh.
17. This valuation was approximately given. Subsequently, when complete valuation was calculated, it came to Rs, 1,33,556.22, as per the details mentioned in Exh. 21, which was prepared by P. W. Moula Bux Kazi.
23. It has further been argued by the learned counsel that Exh. 21 is a further statement of the witness and is hit by the provisions of section 161, Cr. P. C. And cannot be looked into, as a piece of evidence "dust the appellant. I would not call Exh. ;I, a further statement, under section 161, Cr. P. C.
Of the witness. In fact Exh. 21 is a mere calculation of the value of the bags which were found short.
In respect of which the appellant was alleged to have committed the criminal breach of trust. If the shortage is admitted, the value of the bags is calculated on the rate fixed .By the Government. It further shows that the amounts deposited by the appellant to the head office of corporation at Lahore, through Demand Drafts of the sale proceeds of the fertilizers, have been shown deducted, and the amount misappropriated had been calculated, as Rs, 1,33,556.22.
24. In cases of misappropriation, when the checking is continuing, it is rather difficult, to immediately give the correct figure of the amount. When the final checking is completed on the basis of the record and the value is calculated, that alone is the correct figure, which is to be considered as the total amount.Misappropriated. The contention of the learned counsel, is therefore, without substance. The learned counsel has finally placed reliance on Exh. 23 which was the weekly statement. Re has submitted that the appellant had given the reports and had submitted the statements signed on 2nd March, 1968. This is a weekly statement, for the week commencing from 18th February, 1968 to 29th February, 1968. This statement, in view of the above discussion, has no bearing on the merits of the case and cannot be isolated, to strengthen the argument that the appellant had not misappropriated the alleged fertilizer bags.
25. It was alsO faintly argued that the amount of shortage was exaggerated, was not borne out from the record. I have carefully checked the statement Exh. 21 and have compared it with the F. I. R.
Exh. 17 and the evidence of Moula Bux P.W. 1 and Rahmatul lah P. W.
5. I. Have no doubt in my mind that amount mentioned is correctly calculated, on the basis of which the substance of accusation was read over to the appellant. No arguments were advanced on the point of sanction, in view of the order dated 25th October, 1974 dismissing the Cr. Rev.
Application No, 49/1974.
' As a result of the aforementioned discussion, I find no merit in the appeal, which is accordingly dismissed.