1. SIDDIKY, C. J.-The appellant who was an Assistant Cashier of the Ramna Branch of the National Bank of Pakistan was convicted under section 409 of the Penal Code and sentenced to rigorous imprisonment for five years and to a fine of Rs. 5,000 in default to rigorous imprisonment for further one year, on the following facts.
2. Appellant Bazlur Rahman, as Assistant Cashier of the Ramna Branch of the National Bank of Pakistan, was entrusted on 13-9-61 with a sum of Rs. 70,000 of the said Ramna Branch for depositing the said amount in the local office of the National Bank of Pakistan at Jinnah Avenue, Dacca. On 7-12-61, it came to the notice of the Manager of the local office of the National Bank of Pakistan, Dacca, from correspondence of its Head Office at Karachi, that the said sum of Rs. 70,000 was not deposited with the local office of the Bank on 13-9-61. On scrutiny of the records, it was detected that the said sum of Rs. 70,000 was defalcated and the Manager of the local office lodged a first information report with the Ramna Police on 9-12-61. The police on completion of investigation, submitted charge-sheet against the appellant under section 409 of the Penal Code and later submitted a supplementary charge-sheet against one Moshfequs Salehin, the Accountant of the local office at Dacca. Later the case against Moshfequs Salehin was withdrawn by the police and he was examined in the case as a prosecution witnessNo.
12. The prosecution alleged that somehow or other appellant Bazlur Rahman manufactured a memo. Receipt of the local office with the signature of the Accountant, Moshfequs Salehin, with a view to save his own skin but it was apparent from the records and the books of the local office that on 13-9-61 the amount in question had not at ail been tendered for deposit and had not been entered in any of the books of the local office. Later, a competent Magistrate framed charge against the appellant under section 409 of the Penal Code and committed him to take his trial in the Court of Sessions and he was tried by an Assistant Sessions Judge on the said charge.
3. The defence did not adduce any positive evidence, but from the trend of cross-examination of the prosecution witnesses, it is found that the case of the appellant has been that he deposited the amount in question with the local office and duly obtained a receipt for the same and handed over the said receipt to the Ramna branch of the Bank.
4. Prosecution examined as many as 15 witnesses in the case. The defence did not contend that the appellant was not the Assistant Cashier of the Ramna Branch of the National Bank of Pakistan, Dacca, at the relevant time. It also did not contend that he was not entrusted with the said sum of Rs. 70,000 on 13-9-61 for crediting the same with the local office of the -National Bank of Pakistan.
5. The defence case, as stated by the appellant in his examination under section 342 of the Code of Criminal Procedure, is that on 13-9-61 he along with the Guard Jiaul Hoque went to the local office of the Bank at Jinnah Avenue, deposited the sum of Rs. 70,000 got a receipt from the local office under signature of the then Accountant Moshfequs Salehin, and later deposited the said receipt on the very same day with the Ramna Branch of the Bank. Number of documents were exhibited in the case which are different registers and books of accounts of the Ramna Branch and of the local office of the Bank. The Cash Transit Register of the Ramna Branch of the National Bank (Exh. 6) shows an entry of Rs. 70,000 by appellant Bazlur Rahman (Exh. 6/I) in it on 13-9-61. Exh. 6/2 in the said register is the signature of P. W. 7 Habibur Rahman and Exh. Ei/3 is the signature of the Manager of the Ramna Branch. The entry in that Register which has been marked as Exh. 6/-1 at page 15 thereof has been found to be in the hand of the appellant Bazlur Rahman. The Cash Scroll Book (Exh. 7) shows that this sum of Rs. 70,000 was entered in it by the Manager in his own hand.
6. The Debit Voucher (Exh. S) for Rs. 70,000 dated 13-9-61 is alsm found to be in the hand of the appellant Bazlur Rahman as proved by P. W.
7. This Debit Voucher was prepared while sending the money from the Ramna Branch to the local office. All these go to prove that these was an entrustment of Rs. 70,000 with the appellant before us by the Ramna Branch of the National Bank of Pakistan. Exh. A/3 is the memo receipt obtained by appellant Bazlur Rahman showing the credit of Rs. 70,000 with the local office. This memo. Receipt is found to have been signed by M. Salehin, the Accountant of the local office of the Bank. The body of it is written by appellant Bazlur Rahman.
7. Exhs. 1, 2, 3 and 4 are the relevant books and registers of the local office of the National Bank at Dacca. From these exhibits, it has been shown by the prosecution that this amount of Rs. 70,000 was not entered in any of these exhibits on 13-9-61 or any day thereafter.
8. Through the mouths bf P. Ws. 1, 3 and 12, the Bank has proved the system of depositing money with the local office by the branches. It is the evidence of these witnesses that the Branch offices through their respective officers assigned for the job excess cash to be deposited with the local office and that officer tenders to the cashiers' counter, where two Assistant Cashiers and one Cashier sit in the local office, the cash to be deposited as well as a memo. Receipt prepared for the purpose of signature of the local office's Accountant as evidence of such deposit. Any of the Assistant Cashiers in the counter then counts the money, enters into the relevant books, and thereafter those books and the memo. Receipt prepared by the Branch are passed on to the Head Cashier who after scrutinising the papers and being satisfied forwards the books and memo receipt to the table of the Accountant of the Bank (in this case M. Salehin) who after checking the books and making an entry in his own Cash Scroll that he maintains for the day's receipt and disburse--ments signs the receipt which is then given to the officer of the Branch who takes the receipt back to the-Branch and deposits it.
9. According to P. W.
1. Md. Waliullah Khan no amount of Rs. 70,000 was deposited on 13-9-61 as is evident from his Cash book. Similarly, P. W. 2 Md. Abdun Nayem, the Head Cashier of the local office, stated that the appellant did not on 13-9-61 deposit any sum of Rs. 70,000. It is his evidence that he signs the papers after being satisfied about the receipt of the cash deposited in the Cash Counter, but it is also his evidence that he never personally sees the actual payment of any money to the Assistant Cashiers. P. W. 3 Abdul Hakim Talukdar who was also an Assistant Cashier in the local office of the Bank at the relevant time has also said that the appellant did not deposit the sum of Rs. 70,000 with him on 13-9-61. The evidence of P. W. 12 Moshfequs Salehin, the Accountant in the local office, is that appellant Bazlur Rahman, an Assistant Cashier of the Ramna Branch of the Bank, used to bring money for deposit in the local office and deposit the same in the Cash Department.
10. Any of the Assistant Cashiers receive the money, signs the credit voucher, forwards that credit voucher and memo receipt to the Head Cashier who signs the voucher seeing the signature of the Assistant Cashier and then the voucher is entered in the kutcha register. Thereafter the Head Cashier sends the kutcha register, credit voucher and memo receipt to the Accountant. It is his evidence that the memo receipt is not signed by the Assistant Cashier or the Head Cashier. He alone signs the memo receipt after being satisfied about entries in the kutcha register and signatures of Assistant and Head Cashier in the credit voucher. Before signing the memo receipt it was his practice to enter the amount of the voucher in the Accountant's Scroll Book. It was his further evidence that he never signs any memo receipt without entering the amount in the Scroll Book which he maintains and said that there was no entry in this book dated 13-9-61 of any amount of Rs. 70,000 paid by Bazlur Rahman. He has proved certain other payments of Rs. 70,000 by the Ramna Branch on different dates earlier than 13-9-61.
11. The prosecution tried to make out a case that some of the memo receipts from the Ramna Branch were missing and the memo receipt, Exh. A/3 may be one of those missing receipts which was manipulated by the appellant to show that on 13-9-61 he had deposited the sum of Rs. 70,000 with the local office, which was entrusted to him on the same day by the Ramna Branch. But according to the evidence of P. W. 13, the Investigation Officer, it is found that Exh. A/4 the memo. Receipt dated 13-9-6 1 showing deposit of Rs. 70,000 with the local office was seized from the Ramna Branch of the Bank which later the appellant had exhibited and which was marked as Exh. A/3. With regard to the signature on the memo receipt, Exh. A/3, the evidence of P. W. 12 M. Salehin, the Accountant of the local office at the time, is that the signature in the said receipt appears to be his but it was not issued by him on that date. In his cross-examination, he admitted that he was made an accused by a supplementary charge-sheet in this case and the legal Adviser of the Bank, Mr. Asrarul Hossain, Bar-at-law, appeared and prayed for his bail but this witness did not pay the fees of Mr. Asrarul Hossain who was the legal Adviser of the Bank. He has denied any knowledge of the case against him having been withdrawn by the National Bank. In answer to a question from the Court, this witness admitted the signature on Exh. A/3, the memo. Receipt in question dated 13-9-61, showing deposit of Rs. 70,000 to be his, although he attempted to say that the figure "13" at the top of the receipt and figures "13.9" in the middle appears to be in different ink. He denied the suggestion that the money was deposited and it was misappropriated by the Assistant Cashiers in collusion with him. 'there is one snore piece of paper which the prosecution brought on record as Exh. 15 to prove the case against the appellant. It is a statement of account of the appellant Bazlur Rahman with the United Bank Limited. From this statement of account, the prosecution has tried to show that on the 14th of November 1961 the appellant deposited in his S. B. A/C No. 547 with the United Bank Limited (Exh. 15) a sum of Rs. 18,500 and withdrew on the 9th of December by a self- drawn cheque the said sum of Rs. 18,500 to prove the misappropriation by the appellant. Here we may also mention a piece of evidence of P. W. 13 Mohammad Hossain, the Investigating Officer, which is relevant for the case. According to P. W. 13, the Investigating officer, he sent a= requisition to the Officer-in-Charge of Savar Police Station within whose jurisdiction the appellant's village home is situate and after enquiry the Savar Police submitted a report to the Investigating Officer to the effect that the pecuniary condition of the family of the appellant Bazlur Rahman was solvent and his standard of living was up to the mark. During the investigation, books of accounts of Hafez Khabiruddin, father-in-law of the appellant, were also seized and the Investigating Officer examined Hafez Khabiruddin. This was, as was stated by the learned Advocate for the appellant, when the defence during investigation disclosed to the police that the father-in-law of the appellant had given him a considerable amount of money for purchase of lands ; but strangely enough the prosecution has neither exhibited the books of accounts of Hafez Khabiruddin nor made any attempt to examine him as a witness for the prosecution.
12. This is all the relevant evidence for the prosecution in this case.
13. Mr. Abdus Salam Khan, the learned Advocate for the appellant, has raised two points for our consideration in this appeal. The first is that, in the face of Exh. A/3, the .Memo. Receipt dated 13-9- 61, showing a deposit of Rs. 70,000 with the local office of the Bank by the appellant which has been signed by Moshfequs Salehin, the Accountant of the local office, it does not lie in the mouth of the prosecution to show that this amount was not deposited with the local office of the Bank by the appellant on 13-9-61. Elaborating, Mr. Abdus Salam Khan submitted that his client's duty was to take the money, tender it to one of the Assistant Cashiers at the Cash Counter of the local office along with the memo receipt prepared by him and then wait until the local office had completed their part of the job and then take memo receipt signed by the Accountant as a token of the deposit of the money and to bring back the same and deposit it with the branch from which the money was sent and it is none of his concern as to whether inside the Cash Counter of the local office the Assistant Cashiers or the Head Cashier or the Accountant for that matter, prior to giving :, receipt to the depositor pursuant to their normal duties, enter the amounts in the relevant books of the local office or not. In view of the evidence of P. W. 12 Moshfequs Salchin, the Accountant, that Exh. A/3 contains his signature, Mr. Abdul Salam Khan's contention is that the local office, or for that matter the Bank, cannot now get out of the fact that the sum of Rs. 70,000 was, in fact, deposited with the local office of the Bank by the appellant on 13-9-61. He has drawn our attention to Exh. A/3 to show that from the handwriting on that piece of paper including the figures it cannot be said that there has been any interpolation of that document in any manner whatsoever. We have looked into this receipt very scrutinisingly and we find no signs of any interpolation in any of the handwritten portion of Exh. A/3. The signature of the Accountant which has been marked by the Magistrate as Exh. 7/1 on the memo receipt Exh. A/3 is clear and has been admitted by P. W. 12 M.
14. Salehin the Accountant. The receipt was not produced from the custody of the appellant but was seized from the custody of the Ramna Branch of the Bank where it was lying from 13-9-61. Further Mr. Abdus Salam Khan contended that the suggestion of the Bank, that some of the memo.
15. Receipts were missing from the Ramna Branch, one of which was got hold of by the appellant and was tampered showing the deposit of Rs. 70,000 op 13.9-61, cannot at all be accepted for the simple reason that the Bank has not produced any evidence whatsoever to show that receipts relating to particular deposits of certain specific dated are missing. Of the other receipts which have been exhibited, Exh. A dated 5-9-61 shows a deposit of Rs. 70,000 Exh. A/1 dated 22-8-61 shows yet another deposit of Rs. 70,000 and Exh. A/2 dated 16-8-61 shows a deposit of Rs. 75,000.
16. These exhibits in no way, according to Mr. Salam Khan, go to prove the case of the prosecution that a memo. Receipt showing a deposit of Rs. 70,000 on some other4ate, I.e. Other than 13-9-61 was, in fact, removed by the appellant from the Branch office and later he interpolated the same at least in respect of the date of deposit to show that the amount was deposited on the date mentioned therein. We entirely agree with Mr. Abdus Salam Khan that unless the Bank could have produced its books and registers to show that particular receipts of a specific date relating to the deposit of Rs.
17. 70,000 was, in fact, missing from the custody of the bank, it is difficult to rely on the mere suggestion that some receipts were stolen and one of such receipts is now being utilised by the appellant to show the deposit on 13-9-61.
18. The second contention of Mr. Abdus Salam Khan was that although the learned Assistant Sessions Judge had put to the appellant in his examination under section 342, Cr. P. C. That after the said sum of Rs. 70,000 was not deposited by the appellant with the local office or as misappropriated by him had purchased property worth Rs. 14,000 to Rs. 15,000 yet he did not put to the appellant Exh. 15, the statement of Account of the appellant with the United Bank Limited. In regard to this, Mr. Abdus Salam Khan further submitted that the police having been satisfied from an enquiry made through the Savar Police that the financial condition of the appellant and has family is affluent and that he lives at a certain standard, and the police having withheld the books of accounts of Hafez Khabiruddin, the father-in-law of the appellant, which the police seized during investigation, it becomes clear that there w 1s' no basis for the prosecution to suspect that there was acquisition of property by the appellant and if there has been any sometime at the end of November 1961 it will not go to prove conclusively misappropriation of any money, by the appellant of the National Bank or the said Rs. 70,000 alleged not to have been deposited with the local office on 13-9-61. Mr. Salam Khan has rightly said that for the non-placement of Exh. 15 to the appellant during his examination under section 342, Cr. P. C. He has been prejudiced to a great extent. If that exhibit, i.e. The Bank's statement of account with the United Bank Limited, would have been put to the appellant- during his examination under section 342, Cr. P. C. He would have had an opportunity to give an explanation about the deposit of Rs. 18,500 in his S. B. Account No. 547 on the 14th of November 1961.
19. If at all Exh. 15 may raise a mere suspicion but prove the prosecutions case.
20. From a scrutiny of the evidence on record, we are satisfied that the prosecution has not been able to establish beyond reasonable doubt the misappropriation of Rs. 70,000 or any part thereof by the appellant and/or the non-deposit of the said amount of Rs. 70,000 by him with the local office on 13-9-61. One P. W. 12 Moshfequs. Salehin has admitted his signature on the memo receipt, Exh. A/3, which was recovered from the Ramna Branch's custody by the police, it is difficult for the Bank now to say that this receipt does not evidence the payment of the amount mentioned therein on the date written thereon. It is in evidence that every week the Branch has to submit its statement of accounts with the local office and Ramna Branch has not been a defaulter in this respect during September, October and November 1961. Yet, the local office, if at all this amount was not deposited with it, did not or could not detect from the statement submitted by the Branch office that the sum of Rs. 70,000 was not deposited with it on 13-9-61. It is the Head Office at Karachi which has from the statement submitted by the Branch office detected the missing of this amount in the boons of the local office and then pointed out to the local office that this amount of Rs. 70,000 shown to have been deposited by the Branch with the local office is not to be found in their accounts, and then and then alone the local office woke tip and took the steps we have already observed earlier.
21. We are, therefore, of the opinion that the Bank has not been able to establish the misappropriation of this amount by the appellant.
22. We also agree with Mr. Abdus Salam Khan that the appellant has been seriously prejudiced by his attention not having been drawn to Exh. 15 by the Court at the time of his examination under section 342, Cr. P. C. This taken along with the non-production of the books of Accounts of Hafez Khabiruddin which the police had already seized and not citing him as a witness for the prosecution to prove that he had not given any money to the appellant for purchase of land, in our opinion, does not in any way help the prosecution to establish the misappropriation of the alleged amount by the appellant. If the prosecution could have proved to the satisfaction of the Court that there was no other source for the appellant to acquire the properties in November 1961 to the value of Rs. 14 or 15 thousand and/or to have deposited the sum of Rs. 18,500 in his account with the United Bank Limited on the 14th November 1961, then possibly, it could have only, in the facts and circumstances of the present case, created a doubt in the mind of the Court that the appellant was involved in this misappropriation. This we say because we have already on the point of Exh.
23. A/3 said that is a document which stands as an insurmountable obstacle in the way of the prosecution to prove the misappropriation by the appellant.
24. For the reasons stated above, we are statisfied that prosecution has not been able to bring home the charge of misappropriation against the appellant and the learned Assistant Sessions Judge has erred in convicting the appellant under section 409 of the Penal Code.
25. We accordingly allow his appeal, set aside his conviction and sentence and direct that he the discharged from his bail bond.
26. ABDULLAH JABIR, J.-I agree.