ABDULLAH JABIR, J.-This appeal arises out of judgment of Mr. A. S. F. Islam Chowdhury, Additional Sessions Judge, Khulna convicting the accused-appellant A. F. M. Abu Sayeed under section 477-A, P. P. C. And under section 420, P. P. C. And sentencing him to suffer rigorous imprisonment for four years and to a fine of Rs. 15,000 in default to rigorous imprisonment for one year and nine months more under section 477-A, P. P. C. No separate sentence was passed under section 420, P. P. C.
The prosecution case is that the accused A. F. M. Abu Sayeed was the bill clerk of the People's Jute Mills of Khulna and one Shariful Islam was the representative of two companies Messrs Pakistan Bamboo Traders and. United Corporation. Berth the companies used to do construction works in the People's Jute Mills. It was the duty of the accused appellant to receive the bills, to check the bills, to prepare cheque vouchers, to write out cheques to obtain signatures of the competent persons on the cheque and to arrange both final and advance payments in respect of construction and other bills. The People's Jute Mills gave United Corporation works for construction extension godown under order ADMN/622 dated 27th January 1962 Exh. 4 and subsequently gave supplementary work for construction of river side godown under order No-dated 7-2-1962 Exh- 4 (1). Both the work orders were accepted by one S. Ahmad one of the proprietors of the companies; Pak Bamboo Traders and United Corporation. United Corporation took some other works from the Jute Mills under orders. The United Corporation carried out those works and submitted bills. Bill No. 2824 dated 10-8-62 Exh. 10 relates to work order No. 622 dated 27-1-62 and bill No. 2829 dated 10-8- 62 Exh. 10 (1) related to work order No. 621 dated 7-2-62. These bills were written by Shariful Islam a representative of two companies named above. These bills along with other bills were submitted to the bill clerk namely the accused appellant together with measurement books and summary bills, put his signature and initial on the back of the bill showing checking of the bills by him and then brought the bills to Mr. Fidai who was the accountant-in-charge of the People's Jute Mill. Deduction for advance payments both in cash and kind were shown in the summary bills and cheque vouchers. The appellant produced the cheque voucher Exh. 5 (10) summary of bills Exh.
6. Journal voucher Exh. 7, showing therein the amount due to the United Corporation against the bills Nos.
2824 and 2829, as well as the advance taken by the said Corporation and showing a sum .Of Rs.
19,065.68 paisa as still due to the United Corporation on 15-8-62. He also wrote out cheque Exh. 8 for that amount which was ultimately cashed by the corporation. According to the prosecution case the appellant had interpolated the bills Exhs. 10 and 10 (1) submitted by Shariful Islam to the appellant and made corresponding interpolations in the cheque voucher No. 5634 Exh. 5 (10), in summary of bills Exh. 6, in the Journal voucher No. 503 of August 1962 Exh. 7 and in measurement books Exhs. 12 and 13 and thereby made an excess payment of Rs. 10,000 to the United Corporation.
It was further stated that the appellant had cheated the People's Jute Mills of the said amount by falsification of their account books. A written First Information Report Exh. 1 was lodged by P. W. 1 Ahmad Reza, Administrative Officer of People's Jute Mills on 11-2-63 alleging that the appellant along with Shariful Islam had misappropriated or defalcated a sum of Rs. 12,000 of the complainant Company. P. W. 10 Abdus Sattar, the then Officer-in-charge of Daulatpur P. S. Filed up the F. I. R.
Form and took up investigation of the case. He seized various papers from the People's Jute Mills under seizure list Exh. 9 and also seized 15 cheques including the cheque Exh. 8 from the National Bark of Pakistan under seizure list Exh. 9 (1), produced the accused appellant Abu Sayeed before a Magistrate obtained his specimen handwriting and signature Exits. 14, 14 (1) and 14 (2) endorsed by the Magistrate and sent the same along with the bills cheque vouchers etc. To the Handwriting Expert attached to the C. I. D., East Pakistan, Dacca P. W. 9 Azizur Rahman who is the Handwriting Expert received the documents referred to above from the Officer-in-Charge cat Daulatpur P. S. Examined and compared them and came to the conclusion that the writer of the specimen writing marked by him as 1, 2 and 3 was the writer of the questioned writings and figures. Police submitted charge-sheet against the appellant and Shariful Islam and others. There was a preliminary enquiry by a competent Magistrate who committed the appellant and Shariful Islam to the Court of Sessions charging them under sections 467 and 477-A. P. P. C. And 467 and 477-A read with section 109, P. P. C. Respectively and discharged two others against whom charge-sheet was committed.
At the time of trial appellant along with Shariful Islam were charged under sections -120/34, P. P. C.
And 477-A/34, P. P. C. The learned Additional Ses--sions Judge found accused appellant Abu Sayeed guilty and convicted and sentenced him as stated. He acquitted the other accused Shariful Islam.Hence this appeal.
In this case prosecution examined in all 11 witnesses and no witness was examined on behalf of the defence.
P. W. 1 Ahmed Reza who is the Administrative Officer of People's Jute Mills and' he lodged written first information report Exh. 1 in this case. He stated that the accused appellant was the bill clerk in their mill and as such. It was his duty to receive the bills, to check the same, to prepare cheque vouchers, to write out cheques, to obtain signatures, 'of competent persons on the cheques and to arrange both final and advance payments in respect of construction and other bills. He stated that on 11th February 1963 he was informed by P. W. Fedai that the accused appellant had tampered with certain documentsand defalcated a sum of about Rs. 12,000 and sent a written first information report to the Officer-in-Charge, Daulatput P. S. P. W . 2 S. H. Fidai is the Secretary and Chief Accountant of People's Jute Mills and from 1961 he was Accountant-in-Charge in the Mills. He also stated that the appellant was bill clerk to Account's section of their Mills and Shariful Islam, the acquitted accused was representative of Pak Bamboo Traders and United Corporation who were entrusted with some construction world in the Mills. He proved work order No. ADMN/622 dated 27-1-1962 Exh. 4 under which the United Corporation was gig en some extra item for construction of extension godown. He also proved work order No. ADMN/621 dated7-2-62 Exh. 4 (1) under which the said corporation was given supplementary item for construction of river side godown.
Both the works were approved by representative of the Jute Mills and the Corporation. He further stated that United Corporation was given some other works also by their Mill. : The Corporation carried out the works and submitted bills. Bill No. 2824 dated 10-8-62 Exh. 10 related to work under order No. 622 dated 27-1-62 and Bill No. 2829 dated 10-8-62 Exh. 10 (1) related to work under order 621 dated 7-2-62. According to him both these bills were written by acquitted accused Shariful Islam who submitted the same to, the Bill Clerk namely the appellant with measurement books and the appellant after checking the bills and writing out cheque voucher No. 5634 dated 15-8-62 Exh. 5 (10), the summary of bills Exh. 6, the journal voucher No. 503 Exh. 7, brought them to him along with the measurement books for passing the bills. He stated that when he approved these bills, etc. He did not, find any interpolations or over-- writings in any of the papers namely Exhs. 5 to 5 (10) 6, 7, 10 and 10 (1) and according to him these over writings were done by the appellant. Lastly he stated that the appellant made over--payment of Rs. 10,000 to the United Corporation through the accused Shariful Islam, and defalcated the said amount, by cheating the Company. The witness also proved some cheques Exh. 8 series which were written by the appellant and according to him the cheque for Rs. 19,065.68 paisa was collected by the accused Shariful Islam.
P. W. 3 is the witness of seizure list Exh. 9, P. W. 4 Syed Raihan Ali is an internal auditor of People's Jute Mill. He was junior Assistant Accountant of the said Mill from 1961 to 1963. He stated that in the first part of 1963 .During audit some defalcations were detected by P. W. Munir Ahmad and he reported the matter to P. W. 2 who was Accountant---in-charge. Under the instruction of P. W. 2 he along with P. W. Munir Ahmed made thorough checking on the following day. They reported to P. W.
2 that defalcation was real where--upon P.. W. 2 informed P. W. 1 who filed written F.
1. R. Accord-- ing to this witness he knows the handwriting of the accused-- appellant as well as the handwriting of Shariful Islam and that Shariful Islam had written the bills Exhs. 10 and 10(1) and that the accused-appellant had written the cheque vouchers Exh. 5 series including Exh. 5(10) showing figures 1,77,665.68 and the figures 1,58,600.00 in Exh. 5 (10). He further stated that the appellant had written the figures in Exh. 7, that the figure 19,317.36 paisa and the word "nineteen" in Exh. 10 and the figure 12,208.69, the figure 17,261.13 and the word `seventeen' in Exh. 10 (1) are in the handwriting of the accused-appellant. He further stated that the word `nineteen' and the figure 19,317.36 on the back side of the last page of Exh. 10 are in the handwriting of the accused-appellant and the word 'seventeen' and the figure 17,261.13 on the back side of Exh. 10 (1) are in the handwriting of the accused-appellant. He denied the defence suggestion in cross-examination that he along with P.
Ws. Fedai, Monir and Abu[ Hashem had committed the defalcation. He also stated in cross- examination that he did not remember if he had stated in the Committing Court that Exh. 10 was in the handwriting of Shariful Islam and did not remember if he stated to the Investigating Officer that alterations and over writings in papers mentioned by him were done by appellant. His evidence in the Committing Court was put in under sec--tion 288, Cr. P. C. By the defence.
P. W. 5 is Kazi Monir Ahmed who was a clerk in Accounts Section in the People's Jute Mills from 1961 to 1963. He stated that he was attending the audit of account of the Mill in 1963 and the auditor noticed some irregularity and he reported about the matter to P. W.
4. He stated that the endorsement on the back of the last page of Exhs. 10 and 10(1) were in the hand--writing of the accused-appellant who had signed his name. Accord--ing to him the figures in Exh. 6 were written by the accused-- appellant and the over writings in cheque vouchers Exh. 5 (10), over writings in journal voucher Exh. 79 overwriting in Exh. 10 and 10 (1) are all in the handwriting of the accused appellant. In cross-examination he stated that: he dill not say in the Committing Court that the endorsement Exhs. 10 and 10 (1) were in the handwriting, of the accused nor did he say that the over writings in summary of bills Exh. 6, and the writings in Exh. 5 (10), and the overwriting in Exh. 10 and Exh. 10 (1) were in the handwriting of accused-appellant as this question was not put to him. He denied the defence suggestion that he along with other; committed defalcation. His evidence in the Committing Court was put in under section 288, Cr.P. C. By the defence.
P. W.6-is Abul Hashem who was construction Overseer in the People's Jute Mills from 1961,1963. He supervised the constructions and took measurements of 3 works in the measure--ment hooks and wrote pages 20 to 22 Exh. 12 in the measurement books and the acquitted accused Shariful Islam agreed to the measurements taken by him and put his signature in the measurement book.
According to him the total cost calculated and written by him in the measurement books relating to supplementary works of extension of godown was Rs. 14,317.36 paisa but by overwriting the figure, it was converted into the figure of Rs. 1,931.36 paisa. This was done by changing some figures of item 12 of the measurement book. He further stated that he also took measurements of the construction of river side godown and entered the measurements in page No. 32 to 34 of the measurement book Exh.
13. The total cost assessed by him for that work came to 12,261.13 paisa and the acquitted accused Shariful Islam had agreed to the measurements and put his signature in measurement book but some figures of item No. Yin Exh. 13 were interpolated and the total amount of Rs. 7,208.59 paisa was converted into Rs. 12,208.59 paisa. The amount of Rs. 5,000 was shown excess in item No. 1 and it wascarried over and came to the figure Rs. 17,261.12 paisa in place of Rs.
12.261.13 paisa. He denied the defence suggestion that he along with others did the interpolations.
P. W. 7 is Matiur Rahman Khan. He stated that he was attached to Khulna Branch of National Bank of Pakistan in 1962 and People's Jute Mills had account in Khulna Branch and the cheque Exh. 8 series were drawn on their Bank by the Mill in favour of United Corporation and the cheques were presented to Habib Bank, Khalishpur Branch who forwarded these to the clearing Bank for collection and the cheques were duly cleared by them and payments made to Habib Bank.
P. W. 9 is the Handwriting Expert. He stated that he received some bills containing figures marked as C-1, C-2, C-4 and C-6 and figures in words marked as C-3, C-5, C-7 and C-8.
2. One bill marked as D containing figures marked as D-1 and D-2.
3. One bill marked as E containing figures marked as E-I and E-2.
4. One bill marked as F containing figures and writings marked, as F (1), F (2) and F (4) and writings marked F (3) and F (5) in words.
5. Vouchers No. 5634 marked as H, containing figures marked H-I and H-2 and writings marked as H-3 and H-4.
6. One bill Extract marked as I containing figures marked as 1 (1) to 1 (4).
7. Voucher No. 543 marked as K containing writings in figures and words marked as K-I, K-2, K-4 and K-5.
8. One measurement book marked N containing writings in figures and words marked as N-I to N- 4.
9. Another measurement book marked as O containing writings in figures and words marked as O
(1) to O(8).
10. Specimen writings in figures and words marked as 1, 2 and 3 in three sheets. He examined the documents made necessary comparisons and in his opinion the writings and figures in words marked C-3, C-5, I (3) O (1) and O (7) agreed with the writings and figures marked as C-7, C-8; F-6, F-8 and H (3) in movement pen position stout, etc. And according to him the writings referred to above are the product of one and the same hand. He further stated that the specimen writings marked as 1, 2 and 3 were consciousness and distorted but still they showed agreement with the writings marked as C-3, C-5, I (3), C (7) and 1 (3). In cross-examination he stated that there was no mention about the name of the persons whose specimen handwritings were examined by him. He denied the defence suggestion that he had examined some ether handwriting at the time when he was doing work in connection with this case and submitted report relating to another case in this case.
P. W. 10 is the Investigation Officer.
P. W. 11 one A.K. Md. Rafiqul Khair is a chartered accountant. He audited the accounts of the People's Jute Mill and stated that the figures in green ink in the item No. I of bill No. 2829 dated 10-8-62 were in his handwriting and he changed the figures on the basis of measurement book produced to him by the accused-appellant who told him that the alteration in the measurement book were done by the Engineer.
There is no dispute that the accused-appellant was the bill clerk of the People's Jute Mills during the period from 10-8-62 to 11-2-63 and that it was his duty to receive - the bills, check the same, prepare cheque vouchers, write out cheques, obtain signature from competent person on the cheques and arrange payments in respect of construction and other works. It is also evident from the evidences of P. Ws. 2 and 4 that United Corporation was given work under order No. 622 dated 27-1-62 Exh. 4 in respect of which they submitted bill No. 2824 dated 10-8-62 Exh. 10 and that the said Corporation were also given supplementary work under order No. 621 dated 7-2-62 Exh. 4 (I) in respect of which they submitted bill No. 2829 dated 10-8-62 Exh. 10 (1). It is also evident from the evidences of P. W. 4 and P. W. 6 that two bills were submitted by Shariful Islam who wrote the same.
There is no dispute that the two bills Exh. 10 and 10 (1) were written and submitted by Shariful Islam on behalf of the United Corporation. Some figures in item No. 12 of Exh. 10 shove interpolations resulting in further interpolation in the total "Rs. 19,317.36". The word 'nineteen marked as C-3 by the Handwriting Expert P. W. 9 also shows interpolation. In the endorsement on the back of Exh. 10, the word `nineteen' marked as C-5, also appear to be interpolation. The signature of the appellant in endorsement was marked as C-8 by P. W. 9 and his writings "thousand . . . . Thirty six only" were marked as C-7 by him. So also item No. I of Exh. 10 (1) show--ing the figures "12,208.59" against that item and `Rs. 12,328.73' in the total in the first page, Rs. 15,304.36", in the total in the second page and Rs. 17,261.13" in the total in third page and the word `seventeen' therein are apparently interpola-- tions. In the endorsement on the back of Exh. 10 (1) which was also signed by appellant Abp Sayeed his signature marked as .F-7 by P. W. 9-shows interpolations. According to the evidences of P. W. 2 and P. W. 4, these interpolations were in the handwriting of the appellant. P. W. 5 also stated that the endorsements on the back of Exhs. 10 and 10 (1) were in the handwriting of the accused- appellant and the over writings in the two bills were also in his hand. P. W. 6 checked items of measurement and wrote pages 20-22 Exh. 12 in the Measurement Book and according to his calculation the cost of the work done under order No. 622, i.e. Bill Exh. 10 came to Rs. 14,317/36 but it was subsequently interpolated and converted to Rs. 19,317.36 showing excess of Rs. 5.000. He had also checked some measurements in respect of work under order No. 621, i.e. Bill EXh. 10.(1) and wrote out pages 32-34 Exh. 13 in the Measurement Book and according to his calculation the total cost came to Rs. 12,261.13 paisa but some figures in item No. 1 in Exh. 13 marked as 0-I and 0-2 by P.
W. 9 were interpolated converting Rs. 7,208.59 to 12.208.59 showing Rs. 5.000 in excess in item No. 1 and this amount was carried over by interpolating ether figures and came to the total figure of Rs.
17,261.13 paisa marked as 0-7 by P. W. 9 in place of Rs. 12,261.13 paisa.
According to P.W.2 and P.W. 4, the cheque voucher were written by the appellant P. W. 2 also stated that the summary of bills Exh. 6 and journal voucher Exh. 7 were written by the accused appellant.
The writing of the appellant in Exit. 5 (10) was marked as H (3) by P. W.
9. These papers also show interpolation of figures, viz. "Rs 1 77 665.68" "Rs. 1,58,600.00" in Exh. 5 (10). "Rs. 19,317.36" marked as 1-1 by P. W. 9, "Its. 17,261.13" marked as 1-2 by him, and "Rs. 1,77,665.68" marked as I-3 in Exh. 6 and "Rs.
89,125.02", "Its. 88,540.66" and "Its. I,77,665,68" in Exh. 7 and according to P. Ws. 2. 4 and 5 these interpolations were in the hand of the accused-appellant. The evidences of these witnesses that the interpolations and over writings were done by the accused-appellant could not be challenged either at the time of trial or at the time of hearing of this appeal. The evidence of the Handwriting Expert who had compared the impugned over writings with the specimen writing and signature of the accused-appellant also show that alt the writings viz. C-3, C-5, L(3), O (1), O (7), C-7, C-8, F-6.
F-7, F-8 H(3) and specimen writ--ings 1, 2 and 3 were in the same hand. It is, therefore evident that the amount of Rs. 19,065.68 paisa shown in the cheque voucher Exh. 5 (10) and in the summary of bills Exh. 6 as payable to United Corporation for which a cheque Exh. 8 of the said amount was issued in their favour, represented an excess amount of Rs. 5.000 in connection with bill Exh. 10 and another excess amount of Rs. 5,000 in respect of bill Exh. 10 (1). A sum of Rs. 10.000 was thus paid in excess to the United Corporation through interpolations of books of account, viz. The measurement book Exhs. 12 and 13. Summary of bill Exh. 6 and cheque voucher Exh.5(10) which belonged to the People's Jute Mills and also by interpolating the figures in the two bills Exh. 10 and Exh. 10(1) submitted by the United Corporation. The appellant had wilfully with intent to defraud the, said Mills had falsified the account books referred to above and cheated the said Mills of a sum of Rs. 10,000.
In the circumstances, we find that the charge under section 477-A, P. P. C. As well as that under section 420, P. P. C. Have been proved beyond reasonable doubt against the appellant.
It was contended by Mr. Akhtaruddin Ahmed, the learned Advocate appearing on behalf of the accused appellant that since P. W. 2 Fedai had admitted that when he checked the papers in question, namely, cheque voucher Exh. 5 (10) summary of bills Exh. 6, journal voucher Exh. 7 and the bills Exhs. 10 and 10 (1). There was no interpolation it cannot be said at the People's Jute Mills had been defrauded of any amount by the payment of Rs. 19,065.68 paisa under cheque Exh. 8 and consequently the charges against the appellant fall through. In order to sustain a conviction under section 477-A, P. P. C. The prosecution .Is not required to show at what point of time the falsification of accounts had been made. He charge is brought home by proving the factum of falsification P of accounts wilfully with the intention of defrauding a person. In the case the accused-appellant had no authority to make -any entry in respect of estimate of work done or cost involved in the two bills which were prepared and submitted by Shariful Islam and in respect of calculation of work and cost in the Measurement Book which were done by P. W. 6 who was the person authorised to do so.
The appellant made the entries wilfully to inflate each of the two bills with intent to make excess payment of Rs. 10,000 without any justification whatsoever may also be stated here that the accused appellant did not offer any explanation as to when and under what circumstances he made the interpolations. In the circumstances the contention raised on behalf of the appellant is of no avail. The learned Additional Sessions Judge, of course, fund that the interpolations had been made by the accused-appellant after issuing the cheque Exh. 8 for Rs. 19,065.68 and he based his finding on the evidence of P. W. 2 who stated that he did not find any over writings or erasing when he approved the bills, etc. The evidence of P. W. 2 on this point does not appear to be convincing, for it appears that. There was no interpolation with regard to the amount of Rs. 19,065.68 paisa either in the cheque voucher Exh. 5 (10) or in the summary of bills Exh. 6 or in the cheque Exh. 8 itself.
The amount shown due asRs.19,065.68 , in the aforesaid papers could not have been arrived at other--wise than by over writings showing the amounts "Rs. 1,77.665.68" and "Its. 1,58,600.00" in Exh.
5 (10) and "19,317.46" and "Rs. 17,261.13" in Exh. 6 and "Rs. 89,125.02" and "Rs. 88,540.66" with total of "Rs.
1,77,665.68" in Exh.
7. It appears that either P. W. 2 had failed to detect. The interpolations in the said papers or having detected the over writings mistook them as corrections of clerical errors. Be that as it may, as already stated, it is not necessary for tile prosecution to prove t tithe of falsification of accounts.
The next contention that was raised on behalf o the appeal ant eras that the prosecution did not examine the Magistrate in whose presence the alleged writings and signature of the accused appellant had been taken and there is nothing to show from the evidence of the Hand writing Expert that he had compared the writing and signature of the accused appellant with the impugned writings and signatures, The Investigating Officer P. W. 10 stated that he had taken the specimen writings of the accused appellant in presence of one Magistrate named Toshenuddin and he proved the specimen handwriting of the accused appellant Exhs. 14, 14 (1) and 14 (2) which were endorsed by the Magistrate under Exhs. 15 and 15 (1) P. W. 10 also stated that he sent the said specimen writings to the Handwriting Expert who had marked the same as 1, 2 and 3 and compared the same with the impugned writings. Hence the mere fact that the Magistrate was not examined by the prosecution does not cast any doubt as regards the identity of the specimen writings.
In view of what have been stated above we see no ground for interference with the conviction and sentence passed against the accused-appellant.
The appeal is accordingly dismissed and the conviction and sentence passed by the learned Additional Sessions Judge are confirmed. The order of stay with regard to the realisation of fine is vacated.
He is directed to surrender at once to serve out the remainder of the sentence imposed upon him.
SIDDIKY, C. J.-I agree.