' MUHAMMAD SAIR ALI, Through this criminal appeal, the appellant has challenged judgment dated 9-12-2005 of High Court of Sindh at Karachi dismissing his Criminal Accountability Appeal No,1 of 2005 and maintaining his conviction and disqualification pronounced in Reference No,30 of 2003 by Accountability Court No,II, Karachi through judgment dated 31-12-2004 but reducing the sentence from 10 years to 7 years and fine from Rs,42,20,000 to Rs,20,00,000 with benefit of section 382-B, Cr.P.C.
2. The appellant was Manager, Small Business Finance Corporation, (now named as Small and Medium Enterprises (SME) Bank), Larkana and Shikarpur Branches. The prosecution alleged that during the year, 1994 to 1995 the appellant obtained eight loans in the names of Abdul Sattar, Muhammad Sultan, Ahmed Ali Memon, Faiq Ali Khan, Behram, Shah Nawaz, Khair Muhammad and Abdul Rauf and misappropriated the released amounts. On 15-11-2003 reference was filed before the Accountability Court, Karachi. A charge was framed against the appellant for offences under section 9 (a)(iii), (iv), (vi) and (ix) read with section 10 of the NAB Ordinance. He pleaded 'not guilty'.
3. The prosecution examined 11 witnesses. The appellant, in his statement recorded under section 342, Cr.P.C. Denied the allegation but pleaded that all the borrowers had paid the loans and the Bank had not suffered any loss. The appellant without submitting himself for examination under oath, produced three defence witnesses. Two borrowers Muhammad Sultan and Ahmed Ali as D.Ws. Supported the case of the appellant and Ghulam Murtaza, the then Senior Assistant/ Incharge Recovery as D.W, admitted receipt of entire loan payments by the Bank from the loanees Shah Nawaz, Behram and Faiq Ali.
4. On conclusion of the trial, the appellant was convicted and punished by the Accountability Court to 10 years' R.I., fine of Rs,42,20,000 or to one year's R.I. For default and disqualification for 10 years under section 15 of the NAB Ordinam;e, 1999.
5. Against the above judgment, his Criminal Accountability Appeal No,1 of 2005 was dismissed by a learned Division Bench of the High Court of Sindh, Karachi through judgment dated 9-12-2005 whereby his conviction and disqualification was maintained but sentence was to reduced to 7 years and fine to Rs,20,00,000 with benefit under section 382-B, Cr..P.C.
6. Present Criminal Appeal No,640 of 2006 through leave, now assails High Court's judgment dated 9-12-2005 qua loan of Faiq Ali as matters relating to the loans of other loanees meanwhile lost relevance. We will, therefore, restrict our opinion to the matter pleaded and addressed before us in this appeal i,e, Faiq Ali's loan.
7. The main argument of the learned counsel for the appellant was that the entire loan amount of Rs,300,000 outstanding in the name of Faiq Ali stood deposited with the Corporation/Bank, therefore, the Bank neither suffered any financial loss nor was the issue alive any more. He also read out the statements of witnesses to prove settlement of the loan amount and also meekly pleaded for reversal of the impugned judgment. In contrary arguments, the learned counsel for the NAB supported the impugned judgment and emphasized that loan payment cannot condone the appellant from the offences under the provisions of National Accountability Ordinance, 1999 for misappropriation of finance.
8. Attending to the submissions of the learned counsel for the parties, we agree with the respondents' plea that mere deposit of the loan amount in the Bank by the appellant or any one else, did not absolve the appellant of his criminality for misappropriation of the Bank-funds which were obtained by him in the name of the loanee.
9. The appellant as the Manager of the Bank was under statutory as well as contractual obligations to promote, protect and preserve the functional and financial interests of the Bank/Corporation, the primary object of which was to do the business of finances and deposits. A Bank or a Corporation acts, functions and speaks through its Managers or employees who normally also hold its Power of Attorney. Such employees or Managers as agents and representatives of such Institutions have higher moral, ethical, legal, professional and contractual duties towards their employers. They are the face and the mouth of the Financial Institutions. They in their dealings with the customers and the general public are the bank or are perceived to be so. They, wherefor, are to act only in the supreme interest of the Bank.
10. Regrettably, acting otherwise than was his duty towards his B employer, the appellant misused and abused his authority as Manager. On the recommendation of the appellant, loan of Rs,3,00,000 was sanctioned by the Corporation/Bank for Faiq Ali who was disbursed only the first instalment of Rs,30,000. The remaining amount of Rs,2,70,000 was released by the bank for this customer but this money was not paid to the loanee. The Accountability Court as well as the High Court through concurrent findings of fact on the basis of evidence held the appellant to have misappropriated and misapplied this amount and thus to have committed offences punishable under section 10 of the NAB Ordinance, 1999. The appellant was thus convicted and punished.
11. The learned counsel for the petitioner has not been able to show us any reason or material to differ with the findings of the learned courts that the loan obtained by the appellant from the Financial Institution in the name of Faiq Ali was wholly paid to him or that the said loan was disbursed in accordance with the terms and conditions of the Sanction Advice of the Corporation/Bank. The evidence on record overwhelmingly demonstrates that the appellant misappropriated sum of Rs,2,70,000 out of the sanctioned loan of Rs,3,00,000. Faiq Ali, as P.W.5, categorically stated that he only received Rs,30,000 and did not receive Rs,2,70,000. Zahid Hussain Abro, P.W.3, as the then Manager of SME Bank, discovered in 2001 the fraud and misappropriation of the appellant by devising methodology of obtaining loans in the name of others with object to pocket the same himself. As per the depositions of Mukhtar Ali, P.W.4 (of SME Bank) and P.W.10 Band-e-Ali, (Manager, Allied Bank Limited), the cross-cheque dated 27-10-1999 issued in the name of Faiq Ali, was converted into an open or a bearer cheque by the appellant by cutting out the parallel lines indicative of crossing. On examining the said cheque, we found appellant to have issued the said cross-cheque as the Bank Manager in the name of Faiq All and then to have changed the cross-nature of the cheque into bearer by deleting of the parallel lines with his signatures. When confronted the learned counsel for the appellant was unable to deny or defend such conversion which was also contrary to the Sanction Advice of the Corporation. The modified cheques, being bearer, was encashed on the counter from Allied Bank, Limited on 28-10-1999 by the holder who collected Rs,2,70,000 which did not reach the customer Faiq Ali. The Sanction Advice also required disbursement of the loan only in instalments but appellant for his own benefit obtained amount of Rs,2,70,000 in lump sum. Faiq Ali's credible and categorical statement of not having received the cheque or the amount of Rs,2,70,000 could neither be discredited nor dislodged by the appellant despite a gruelling cross-examination. None of the three defence witnesses could go beyond the deposit of the loan amount in the Bank and they were unable to dilute the charges against the appellant.
12. In view thereof, we do not find any material in the present appeal which is accordingly dismissed. The conviction of the appellant and his punishment are maintained as pronounced in the judgment dated 9-12-2005 the High Court of Sindh at Karachi.