1. This is an appeal against he judgment of the learned Special Judge (Central), Karachi, convicting the appellant for an offence under section 409, P. P. C./5(2) of the Prevention of Corruption Act (II of 1947) and sentencing him to undergo R. I' for I year and pay a fine of Rs. 10,000 or in default to undergo R. I. For one year, ordering further that the amount of Rs. 7,096 out of the fine if recovered be paid to the Post and Telegraph Department.
2. The appellant was appointed Government auctioner of Telephone District Karachi on 4-6-59 and commissioned to function up to 30th December 1959. In his official capacity he gave public notice of an auction in `fang' daily dated 21-11-59 for auction to tie field on 10-12-59. The auction proceedings were supervised by Mr. Hashmi. The bids of Ismail and Kamil were accepted for Rs.
3. 3,500 and, Rs. 3,596 respectively. According to the rules the ruction-purchasers were required to deposit 25% of the price with the auctioner (appellant) for payment to the department on the following day of the auction and the balance was to be paid within one week. It is said that the bidders had paid the entire amount to the appellant but he failed to deposit it to the department. A telegram. Was therefore sent to him on 14th December 1959 and this was followed by letter dated 11-1-60. At last on 23-6-60 the appellant gave a cheque for Rs. 3,000 to Mr. Hashmi and obtained the delivery of one lot sold to Kamil. The delivery was taken by one Siraj Uddin. However Mr. Hashmi insisted that the appellant should give him to cheques for each lot and furnish details of the auction. On 29th January 1960 the appellant delivered, to cheques for Rs. 3,520-13-0 and Rs. 3,480- 5-0 after deducting the amount due to him. He also furnished the auction details. When these to cheques were given the cheque of Rs. 5,000 was returned to the appellant and the second lot was delivered to Ismail on 20th February 1960. Refund of security deposit to the appellant was also ordered on 22-2-60. So he withdrew the amount of the deposit. However, when the to cheques were presented in the bank the same were dishonoured. There was some correspondence between the parties and when it was found that the appellant was not prepared to, honour the cheque a complaint was filed with the Special Police on 29th June 1960.
4. The police after usual investigation challaned the appellant in the Court of Additional City Magistrate, Karachi, who after holding committal proceedings committed the appellant to the Court of Session. But subsequently the case was withdrawn under section 494, on the ground that the appellant was a public servant and, therefore, he could only be tried by the Special judge. So the case was brought on the the of the Special Judge on 3-7-65, The substance of the accusation was read over to the accused on 25th September 1965 and he pleaded not guilty. Thereafter evidence was recorded and on the conclusion of the prosecution evidence the statement of the appellant was taken down. He admitted having signed the agreement Exh. 8 and further admitted that he was required to deposit the amount received from the bidders. He also admitted that he had published the notice in the newspaper and the auction was held. His further case was that the bid was closed in the name of Choudhry Mohd. Siddik of Lalukhet. He denied that Mohd. Kamil and Ismail had purchased the lots. He also denied having received any money from the bidders. He admitted the receipt of the telegrams and letters from Mr. Hashmi demanding the deposit of the auction money. He denied that he had given a cheque of Rs. 5,000 to Mr. Hashmi and got the lots released. He maintained that the lot had been purchased by Sirajuddin who' paid the entire purchase price to Siddik Supervisor under the orders of Mr. Hashmi. So far the subsequent to cheques are concerned he stated that he gave the blank cheques bearing his signatures to Mr. Hashmi who subsequently filled the other particulars in the cheques without his knowledge. He denied having issued or received back the cheque of Rs. 5,000 in exchange for the other to cheques. He admitted that the letters and forms bore his signatures but maintained that the body of those letters had been written by Mr. Hashmi. So far the lot delivered to Ismail is concerned it was not included in the auction to which this case related. He did not know that all the cheques which he had given blank under his signatures were cashed or not or whether there was sufficient amount to meet the cheques. He further pleaded that his deposit was returned to him and a clearance certificate was issued. Consequently he was not guilty of any "offence. He also made allegations that Mr. Hashmi was his partner in equal shares and, therefore, Mr. Hashmi used to write letters in his name and he used to sign them. He examined three defence witnesses Ali Mohd. Jafri, Masoom Ali and Mir Ahmad Ali.
5. The learned Special Judge, on the assessment of the evidence found the appellant guilty of the offence and rejected his defence.
6. Taking up the prosecution case the first witness is Mr. Akram Hussain Hashmi. He was Assistant Director, Posts and Telegraph Deptt., Karachi and was incharge of the Stores. Some goods had become unserviceable in the store and, therefore, the same were put to auction through the appellant who was appointed as auctioner by the Government. The sanction was obtained from the General Manager and this is Exh. 8 which bears the signature of the General Manager as well as the appellant. Notice for the auction was published in the newspaper and this is supported by advertisement Exh. 9 and bill Exh.
10. The witness further stated that on 10-12-59 four auctions took place under his supervision and the same were conducted by the appellant. The various articles were mixed up and split into to lots for which separate bids were invited. Mohd. Ismail was bidder for one lot while Mohd. Kamil and others were bidders for the second lot, as reported to him .By the appellant. The bids were confirmed in their names for the amount of Rs. 3,500 and Rs. 3,596. He further stated that according to the rules of auction 25 % of the auction price was to be deposited by the bidder on the following day of the auction and the balance was to be deposited by them within a week's the. The amount was to be realised by the auctioner i.e. The appellant from-the bidders and he was required to deposit it with the department. Since the appellant failed to deposit the money a telegram was sent to him and there was an exchange of correspondence. On 23-1-60 the appellant delivered the cheque for Rs. 5,000 along with the details of the auction but he insisted that the separate cheques be given for each lot. On 29-1-60 to cheques were delivered by the appellant. The goods were released. The cheques were subsequently presented to the bank but the same were dishonoured. However, earlier the amount of Rs. 2,000 which was taken as deposit from the appellant was ordered to be refunded to him as he had delivered the to cheques. He denied the suggestion made to him that he was either a partner or he had prepared the documents in the name of the appellant and obtained his signatures. He also denied that the cheque of Rs. 5,000 was not given to him.
7. The next witness is Mr. Zahoor Ahmad Qureshi who was the Divisional Engineer, Telephones, Karachi. He also stated that the appellant was appointed auctioner and he executed the agreement. The auctioner used to realise the auction money from the purchasers and then gay to the department by way of cheques. The accounts were maintained by the Divisional Office. He accorded sanction for the auctioning of the goods which had become unserviceable. Thereafter the goods were auctioned and he had received to cheques in February 1960. The cheques were sent to the bank but they were dishonoured. There was correspondence with the appellant for the recovery of the amount.
8. The third witness is Mohd. Siddik who was incharge of the stores. He also stated that there was an auction of cable wire on 10-12-59 and it was conducted by the appellant under the supervi--sion of Mr. Hashmi one lot was purchased by Kamil and the other was purchased by Ismail. The delivery of one lot was given to Sirajuddin who was accompanying the appellant and was said to be agent of Kamil. Sirajuddin signed the delivery receipt. The second lot was handed over to Ismail on 2-2-60 when he brought the release order from Mr. Hashmi. The appellant was also with Ismail when the delivery was given.
9. The fourth witness is Mohd. Umer. He was cashier in the Divisional Engineer's Office. He had received the to cheques through Mr. Hashmi in the month of February 1960 along with the forwarding letter.
10. Sale account was received by him in the month of April 1960. Thereafter the cheques were sent to the bank but were dishonoured. He further stated that the security releasing authority is different from the Divisional Engineer.
11. The 5th witness is Ismail who was one of the bidders. He stated that he had purchased one lot in the auction conducted by the appellant for Rs. 3,500. Out of this amount he paid Rs. 900 at that very the to the appellant and the balance he paid to him in February 1960. He obtained the delivery of the lot in the presence of the appellant and clerks on 20th February 1960 and passed on receipt to that effect. He further stated that he gave Rs. 2,600 to the appellant on the day he had taken the delivery of the goods.
12. The 6th witness is Sacacsa Patel, who was the accountant in the Central Bank of India. He produced the account of the appellant from 1-1-60 to 30-4-60. This account showed a balance of Rs. 550 on 29th January 1960 and Rs. 598 on 14th April 1960.
13. The 7th witness is the other bidder, namely, Mohd. Kamil. He had purchased one lot for Rs. 3,600. He stated that he had paid Rs. 900 being 1/4th of the amount to the appellant and the balance he had paid to him about four days thereafter. Subsequently he had received the delivery of the goods. He also affirmed that the other lot was purchased by Ismail.
14. The last to witnesses are Mr. Nasrullah Khan and Mr. Abu---fakhar who were the investigating officers. So their evidence is of formal nature.
15. Taking up the defence witnesses, Ali Mohd. Jafri who claimed himself to be an auctioner stated that he had been working with Kamil as his partner. No partnership deed had been executed. He further stated that in 1959 Chaudhry Siddik had purchased the wires but he did not lift the goods and the same were offered to him but he refused. He further stated that Ismail, Chaoudhry Siddik, Jafri and others had given the-bids at the auction.
16. The next witness is Masoom Ali who had merely deposed about the procedure which is followed by the Kabaris to offer bids at the Government auctions. So his evidence is not material.
17. The third witness is Mir Ahmed Ali, who was a Kabari at Hyderabad. He stated that he had participated at the auction held for the disposal of the old cables. He had not purchased any goods from the Telephone Department in 1959. He however, purchased in 1960. He was present at the auction held on 15-1-60 when the final bid was accepted on behalf of Choudhry Siddik who lifted the goods in his presence, and 25% of the auction price was deposited with the appellant and the rest was also to be paid to the auctioner. Mr. Ansari, Assistant Director supervised the auction.
18. To take delivery only gate pass was to be shown and the auctioner never accompanied them.
19. This is the entire evidence which had been produced by the prosecution as well as the appellant.
20. On consideration of the evidence it is plain enough that the appellant had received the amount and did not deposit it but he misappropriated the amount. It was admitted by him that he was the auctioner appointed by the Government and had conducted the auction. It was also admitted by him that according to rules be was required to receive 25% of the auction price on the following day of the auction and the balance within one week and then he was required to deposit it with the department. Both the auction-purchasers, namely, Ismail and Kamil were examined and they stated that they had given 25%. Of auction money immediately after the auction to the appellant.
21. So far the balance was concerned Mohd. Ismail stated that he paid the balance in the month of February 1960 while Mohd. Kamil stated that he paid the balance amount to the appellant about four days after the auction. Thus this payment to the appellant has been fully established. There is absolutely no reason to reject their evidence. Nothing has been alleged against them nor there is anything on record to discredit their testimony. The allegations of the appellant that Mr. Hashmi was his partner and the auction was knocked down in favour of Choudhry Mohd. Siddik and Mr. Hashmi was doing everything and was obtaining his signatures on blank papers and cheques from him are false and deserve no serious considera--tion. These allegations were denied by Mr. Hashmi and there is nothing to disbelieve him. His evidence is supported by the various writings passed on by the appellant as well as the to cheques which were issued by him under his signatures. The appellant has taken a dishonest plea in order to save his own skin. Similarly the defence version is incredible and the learned Special Judge gave sound and cogent reasons for rejecting their testimony. The defence case was that Mohd. Siddik had refused to lift the goods but still the goods were taken delivery of by Sirajuddin and the appellant failed to explain why this delivery was made. No subsequent auction had taken place. The appellant had also failed to explain how he gave the receipt to Sirajuddin to enable him to obtain the delivery of the lot which Kamil claimed to have purchased in the auction. The statement of the appellant also stands contradicted by the evidence of his to defence witnesses Jafri and Ahmed Ali. There was also no evidence to show that Choudhry Mohd. Siddik had participated in the auction or he had purchased the goods in the auction. There was some reason on the receipt and this was explained by the learned Special Judge that it appeared to have been done by the appellant in order to forestall the defence. In spite of the appellant's assertions that Choudhry Siddik had not lifted the goods his own witness Mir Ahmed Ali belied him and stated that Choudhry Siddik had lifted the goods in his presence. Moreover, his evidence relates to some other auction held in January 1960 while the present auction took place in December 1959. Even according to Mir Ahmad Ali the purchaser was required to deposit 25% of the auction money to the auctioner. It therefore follows that 25% was actually deposited with the appellant but he failed to credit it in department. Ali Mohd. Jafri also claimed to be the partner of Kamil but there was no proof of his partnership. Even Exhs. 20 and 21 which are the details of the sales falsify the plea taken by the appellant. Both these exhibits are the printed forms of the appellant and they refer to the sale made to Ismail and Kamil. The entire correspondence exchanged between the parties also relate to the sale to Ismail and Kamal and not to anybody else. The learned special Judge also dealt with the contention that since the security amount was returned to the appellant the entire account was cleared and all the payments had been made. It was observed by him that even if the contention was correct the appellant should have been in a position to produce the copy of the letter issued to him on 8-1-60.
22. The refund of the amount was ordered as the to cheques and the statement of the sales were given to Mr. Hashmi. The Officers of the Telegraph Department did not suspect that the appellant had no sufficient funds in the bank and the cheques would not be honoured. It was further observed by the learned Special Judge that in case the appellant had cleared the accounts before 8-1-60 there was no occasion for writing letters and submit accounts Exhs. 14, 17, 20, 21, 27 and 28. In none of these letters the appellant pointed out that the amount had already been paid.
23. Lastly, it was pointed out by the learned Special Judge that the plea of the appellant that Mr. Hashmi was his partner must be rejected on the ground that it was not shown that the goods were sold below the probable market value of Mr. Hashmi was expected to make any profit out of this bargain.
24. In the end it was urged by the learned counsel for the appellant that even if it was presumed that the appellant had received the amount and had not deposited in the department, he could not be tried under the Prevention of Corruption Act but in the ordinary Court as the amount was received by him after he ceased to be a public servant, as the terms of the appellant expired on 30th December 1959. I do not find much force in this contention so far the lot purchased by Mohd. Kamil is concerned. Mohd. Kamil stated that he had paid Rs. 900 being 1/4th of the amount to the appellant after the auction and the balance was paid by him about 4 days later. The auction had taken place on 10-12-59. Thus the entire amount of Rs. 3,600 was paid to the appellant within the period he was a public servant. So far Mohd. Ismail is concerned he also stated that t--he had paid 1/4th of the auction price on the spot on the conclusion of the auction and the balance in February 1960. Thus the amount of Rs. 900 was paid to the appellant when he still in service and only the balance was paid when he was no longer in service. The plea taken by the learned counsel can be confined to this last amount while other payments remain unaffected.
25. In the circumstances I maintain the conviction and sentence passed against the appellant and dismiss the appeal. The appellant should surrender to his bail to undergo the un-expired period of his sentence.