This appeal under section 410, Cr. P. C. is directed against the judgment of Mr. A. A. Dareshani, Additional Sessions Judge, Karachi dated 31-3-1968, whereby he convicted the appellant under section 408, P. P. C. and sentenced him to 3 years' R. I. and a fine of Rs. 1,000 in case of default to suffer further R. I. for six months, he also convicted the appellant under section 47l, P. P. C. and sentenced him to R. I. for two years and a fine of Rs. 1,000, in case of default to pay fine, further six months' R. I. The sentences to run concurrently and it was also ordered that half of the fine if recovered should be paid to Ali Automobiles Ltd. as compensation under section 544-A, Cr. P. C. '
2. The facts shortly according to the prosecution are that the appellant was employed in Ali Automobiles, Karachi as Incharge, Pricing, Supply and Tender Section in their offices at West Wharf, Karachi. In the year 1963, an order was placed by one Siddique Ismail to purchase a Anglia car and he paid Rs. 13,000 for that purpose which was received by the appellant. The appellant had already directed the Accounts Department to purchase bonus vouchers for import of cars, but he failed to hand over the amount ofRs. 13,000 to the Accounts Department on the ground that the car was being imported on the order of an up-country agency, The car in fact was imported and received by Ali Automobiles, which was then sent to the Service Station, from where the appellant is alleged to have obtained delivery of it for the purposes of handing it over to the customer. About a year after handing over the car, checking of the Accounts Department was made and it was found that the price of the car has not been credited to the Company, which was deprived illegally of the price of the car. The appellant in the meanwhile absented himself from duty and sent his resignation to office, however, after thorough enquiry by the Company at Karachi and its Branches at other places, a complaint was lodged with the Police.
Investigation was taken in hand by the Police and the car also was recovered by the Police from possession of one Siddique Isamil who brought the same incidentally to the Service Station of Ali Automobiles for repairs and service.
3. The appellant pleaded not guilty to the charge framed against him and stated that the case was entirely false. He admitted his own signatures on the documents with which he was confronted in the trial Court but at the same time he denied having forged the signatures of the Chief Accountant and also denied to have given direction to the Accounts Department for purchase of bonus vouchers although he admitted his signatures on the relevant documents where such direction exists and he attempted to explain that he had only placed an order for a car already purchased against bonus vouchers. As regards to receipt of Rs. 13,000 from Siddique Ismail, the customer he denied to have received any such amount and also denied his signatures and putting seal of firm on the documents, purported to have been made and signed by the Chief Accountant.
But he had to admit his signatures on the slip Exh. l2 which was sent to the Service Station for delivery of the car to Chaman Driver. This he stated had been done by him under instructions of General Manager. The receipt and delivery of the car is denied by him but again he had to admit his signature on Sale Certificate given to Siddique Ismail for registration of the car, with the short explanation that he put his signatures under the directions of the General Manager. With regard to evidence of prosecution witnesses against him, he stated that they are false and they are giving evidence against him under influence of Ali Automoblies. He however, led no evidence.
4. The prosesution examined a number of witnesses to bring home the charge against the appellant including the General Manager who deposed that the appellant was employed in the company as Tncharge of Pricing, Supply and Tender Departments. Other employees of the company namely, P. Ws Abdul Rahman, Mohammad Ilyas, Asad Ali, Rashid Ahmad, Chaman Khan, Azizuddin, Zakirullah, Mama and Zahid Hussain identified him as the employee of the company.
This fact himself was admitted by the appellant but he contended that he was Incharge of only Tender Department and not of Sale and Delivery Department.
5. I have heard Mr. Yacoob Sabuwala, Advocate for the appellant and Mr. A. A. Mohammadally, Advocate for the State at length. In my opinion there is more than sufficient documentary as well as oral evidence against the appellant. P. W. Siddique Ismail from whose possession the car was recovered and who is the person who placed the order for purchase of the car and paid the money, has been examined and he stated that he has received the delivery of the car imported by the company and he has further proved the same that the car has been registered in his name. Not only this he produced the documents including a receipt of Rs. 13,000 issued and signed by the appellant as well as a certificate Exh. 16/2 for the purposes of registration issued to him and signed by the appellant. No malice or motive has been assigned against this witness by the appellant and also he admits his signature. This witness is a natural witness who in fact took delivery of the car against the payment made by him and he was emphatic in his statement before the Court that he did pay Rs. 13,000 to the appellant and it was appellant and nobody else who gave the receipt Exh. 16/1 and also he stated that it was the appellant who gave him the delivery order and the dealers warranty and it was the same car which was later on recovered by the Police from him and this car is the case property in the case. The statement of this witness is also corroborated by documents Exhs.
16/1 and 16/2 one is receipt of Rs. 13,000 and the other is the Sale Certificate. There are other documents Exhs. 16/3 and 16/4 having been signed and issued by the appellant therefore, there is little doubt left in my mind that the appellant had received the money against the delivery of the car which was the property of the company and it was the appellant's first and foremost duty to deposit that money in the Accounts Department which he failed to do. It was pointed out however, at the time of argument by counsel for the appellant here as well as in the trial Court that this witness should not be believed because the price of the car is shown less than its actual price which was more than Rs. 19,000 but this can be explained in the sense, that there may have been some understanding between the appellant and this witness, under which the appellant was to enrich himself to the tune of Rs. 13,000 at the cost of Ali Automobiles. As this witness was not put on trial as a co-accused before the trial Court his statement is sufficient to implicate the appellant with regard to the receipt of Rs. 13,000, which belonged to his employer which he misappropriated.
The two important documents amongst others are Exhs. 16/1 and 16/2 and the appellant admits his signature on them, for sake of better understanding of the case of the prosecution these documents are reproduced as under : "Ali Automobiles Ltd.
Ford Distributors.
Telephone : 38591 Post Box No. 4206 to 38598 West Wharf.
Invoice No. SP/AO 14145 Karachi 11th May 1963.
Address : A. M. 10 Frere Road, Sent by------------------------- Karachi R/R No.----------------- --- Post Receipt No.--------------- Air F/Receipt No.------------------- Your order No. Nil------- --- Dated--------- Nil.
Item Part No. Description of Goods. Quty. Rate No.
1. One Anglia Deluxe 1963 Model bearing Engine No 105-E- 663538 Chassis No. D22G-400008 1 13.000 13.000 'B' (Sd). Illegible.
Rs. Thirteen thousand only.
Received with thanks from Mr. Siddique Ismail of A. M, 10 Frere Road, Karachi a sum of Rs. 13,000 (Rupees thirteen thousand) in Cash on account of the sale of the above car.
In the. course of Trial. (Sd). Illegible-- Chief Accountant Ali Automobiles Ltd. on Four Revenue Stamps of one anna each.
E & D. E.
For Ali Automoblies Ltd.
(Sd). Illegible.
Prepared by : Sales Manager.
(Sd). Illegible.
Checked by.......... "
"ALI AUTOMOBILES LTD.
Direct Ford Dealers for West Pakistan.
West Wharf Karachi. v 11th May 1963.
To whom it may concern.
This is to certify that we have sold one Anglia Deluxe 1963 Model Car to Mr. Mohammad Siddique Ismail A.M. 10 Frere Road, Karachi bearing Engine No. 105E-663538 Chassis No. D-22-C-400008 under Bonus Voucher Scheme.
The sales tax and duty on the above vehicle has been paid by us.
(Sd). A. A. Mahmood (A. A. Mahmood)
Incharge Pricing & Tender Deptt."
There is another document Exh. 5/2 sent by the appellant to the Accounts Department authorising them to purchase bonus vouchers for the import of the car. Although the bonus vouchers were purchased and paid by the company but it has not received ,118. 13,000 and the non-receipt of this amount is testified by the threeofficers of the company, General Manager, Head Accountant, and Accountant and no satisfactory explanation has been given for this lapse by the appellant. His case is of simple denial therefore, it cannot be said in the circumstances that the appellant has not received the payment which has been proved sufficiently in my opinion. Had he deposited the money with the relevant Department after receiving it from the purchaser it was natural for him to get it duly entered in the company's documents. Not only this, it is revealed from the record that the form on which the receipt was given to the purchaser was not the proper form, naturally it was done by the appellant to avoid detection. Then there is evidence of the General Manager and the Head Accountant and other employees of the company that the appellant was lncharge of the Prices, Supply and Tender Department. He therefore received the amount on behalf of the company as its employee to which he actually issued a receipt referred above under his signatures and it was his legal as well as moral duty to credit the amount with the Accounts Department but he misappropriated the same which is a clear breach of trust on his part.
6. No doubt there is delay of about one year in detection of the offence committed by the appellant but this does not absolve him from the culpability of offences particularly when there is overwhelming documentary evidence on record. This delay in detection of the money may have been due to negligence on the part of the Accounts Department of the company but / delay by itself is no reason to absolve the appellant from the offence. May be, this delay as observed by the trial Judge to detect the fraud was manipulated by the appellant by misleading and misguiding the Accounts Department by saying that the order was placed by an up-country branch of the company i.e. the Lahore Branch.
7. Another interesting feature of this case is that the receipt Exh. 16/1 was produced by P. W.
Siddique Ismail when the car was recovered from his possession. This receipt for Rs. 13,000 is purported to have been signed by P. W. Mama, the Chief Accountant of the Company but this officer has denied that it was signed by him. He contended that the signatures appeared on the documents were not his. It may be noted here that even this receipt is endrosed by the appellant and he admits its endorsement as well. 1 have compared this alleged signature of Mama on this receipt with his other specimen signatures on other documents and there is such a great dissimilarity in the two signatures that it cannot escape the conclusion that definitely an attempt of forgery has been made. As no handwriting expert was examined by the prosecution therefore, the appellant was not charged and convicted for fraud. Yet it cannot be said that the appellant who was working with the company for many years while endorsing documents could remain ignorant with the genuine signature of Mama had somebody else than him attempted to sign on behalf of Mama. This also goes to show in my opinion the guilty conduct of the appellant. Over and above, the seal of Chief Accountant Mama has also unauthorisedly been put under the signature and P. W. Mama has denied having signed the documents or having put the seal on it.
8. From the above it may safely be presumed that the appellant knowingly that the documents were forged yet he used them as genuine; therefore, I am of the opinion in view of the discussion above that the prosecution has proved its case against the appellant for the offence alleged beyond reasonable doubt.
9. In view of the sufficient documentary as well as oral evidence against the appellant, I see no reason to interfere with the judgment of the learned Additional Sessions Judge. The result is I sustain the order of the learned Additional Sessions Judge, Karachi dated 31-3-1968 and dismiss this appeal. .