This criminal appeal arises from the judgment of the learned Special Judge, Anti-Corruption, Lahore whereby he on 3-2-1986 convicted Ashraf Mahmood appellant under section 409, P.P.G, read with section 5 of the Prevention of Corruption Act, 1947 and sentenced him to one year's R.I.
And a fine of Rs.500 or in default thereof to further R.I. For one month.
2. The appellant was Booking Clerk in the Punjab Road Transport Be, rd, Central Bus Stand, Lahore.
The charge against him was that he misappropriated Rs.12,641.90 the sale-proceeds of the tickets sold by him during the period from March, 1979 to December, 1979. He denied the charge and claimed to be tried.
3. To prove its case the prosecution examined 8 witnesses. Khawaja Riaz Ahmed P.W.1 is the Special Magistrate P.R.T.B. He held enquiry into the matter and submitted report Exh.P.A. Wherein he found that the appellant had embezzled an amount of Rs.11,539. Aftab Muzaffar Butt, Inspector A.C.E. P.W.3, Bastur Hussain S.C.O. A.C.E. P.W.6, Rana Daud Ali inspector A.C.E. P.W.7 had partly investigated the case. Tassadaq Rasool Khan, the then District Manager P.W.4 and Manzoor Ahmed P.W.5 deposed about the loss of the enquiry file. Ali Hussain P.W.2 stated that the report of Special Magistrate alongwith R. P. T. Books and Way Bills, were sent to the District Manager, G. T. S. For departmental action against the appellant. The documents were, however, stolen away and a case was got registered in this behalf. Sanaullah Accounts Officer P.W.8 deposed that the appellant while posted as Booking Clerk from March, 1979 to December, 1979 had misappropriated a sum of Rs.12,641 and a few paisas and that he had deposited Rs.10,000 out of the alleged misappropriated amount on 5- 3-1980.
4. When examined under section 342, Cr.P.C. The appellant denied all the incriminating circumstances. He, however, admitted to have deposited the whole of the alleged embezzled amount. He appeared as a witness in disproof of charge against him. He stated that due to heavy rush on the booking and because of various types of tickets, incorrect entries of tickets used to arise in the Way Bills which were corrected by the order of Incharge. He did not produce any other witness in defence.
5. The learned counsel for the appellant contends that the prosecution has failed to prove its case beyond reasonable doubt; that there is no evidence of the misappropriation of the amount by the appellant and in any case, the appellant having deposited the whole of the alleged misapropriated amount, he should not have been convicted under section 409, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947. Conversely, the learned counsel for the State has supported the judgment of the learned trial Court.
6. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that there is no evidence of criminal misappropriation of the amount by the appellant and that no case of criminal breach of trust is also made out against him. Admittedly he was booking clerk and had sold bus tickets.
When during the audit, shortage amounting to Rs.12,641.90 was detected and he was asked to explain, he deposited Rs.10,000 and promised to deposit the balance which he actually deposited after the registration of' the case. The relevant provisions of law may be reproduced advantageously:-- "Section 405. Criminal breach of trust.-- Whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly use or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust."
From the examination of the aforesaid provisions of law, it is very much clear that a person accused of an offence under section 409, P.P.C. Cannot be convicted unless prosecution proves that he had dishonestly misappropriated or converted to his own use or dishonestly used or disposed of the property entrusted to him in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust. In the case in hand, there is no evidence of criminal misappropriation or conversion to his own use the misappropriated amount by the appellant.
Since the prosecution R has failed to bring on record or show any direction of law prescribing the mode in which the, sale-proceeds of the tickets were to be deposited by the appellants or any legal contract expressed or implied in this behalf, therefore, it cannot be said that the criminal breach of trust in respect of sale-proceeds of the tickets was committed by the appellant. Since the appellant has already paid the alleged shortage therefore, no case punishable under section 409, P.P.C., read with section 5 of the Prevention of Corruption Act is made out against him inasmuch as mere retention' of entrusted amount for some time does not amount to criminal misappropriation within the meaning of section 405, P.P.C.
For what has been said above, the appeal is accepted and the appellant is acquitted of the charge. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.