Allegation against accused, Muhammad Anwar Bhatti is that whil he was employed during 1972-73 as Sub-Accountant in N.B.P. Sunn View Branch, Lahore, he had Account No,M-192 in the said branch in connection with which he had been issued cheque book 888276-88830 and thereafter he had opened in Commerce Bank Ltd., Lahore, AccounliA No,62 in the name of Mst. Farah Anwar, his minor daughter to b operated by him and after taking leaves of blank cheques from his ow cheque book of N.B.P. Sunny View Branch, he forged five cheque with fake signatures of different account- holders of N.B.P., Sunn View Branch as drawers and Mst. Farrah Anwar as drawee-beneficiar for Rs,5,000 each and deposited them in the 'account of Mst. Farrah Anwar in Commerce Bank Ltd., Lahore and when these cheques were received in Sunny View Branch for collection, he passed the same as he was competent to pass a cheque upto Rs,5,000 and thus authorised the transfer of the total sum of Rs,25,000 to Commerce Bank Ltd., Lahore and thereafter destroyed the cheques and when after collection, the money was credited in the said account of his mintor daughter in Commerce Bank Ltd., he withdrew the sums of all the said five cheques totally Rs,.25,000 from the Commerce Bank Ltd., Lahore, on the basis of cheques from cheque book of her minor daughter and misappropriated the same. It is also alleged that none of these sums of the said five cheques were debited to the accounts of relevant account holders to avoid detection and thus it was solely the money of the NBP Sunny View Branch, which had thus been taken away and misappropriated.
2. Charge was framed against the accused for offence under sections 468, 471, 409, 420, P.P.C. And section 5 of Act II of 1947.
3. The trial of the accused stood concluded in The Court of Special Judge Central, before the case was sent to this Court. Prosecution had produced five witnesses where after statement of the accused had been recorded on 10-11-83. Accused produced 2 P.Ws. In his defence. In this Court under suo moto exercise of my powers under section 540-A, Cr.P.C. I recalled Aziz-ur-Rehman, P.W. Alongwith record and recorded his statement and received documents from him and also summoned record of N.B.P. Sunny View Branch, Lahore, and recorded the statement of Abdul Razzaq, Manager of said branch who submitted documents.
4. The five cheques on the basis of which the sum of Rs,25,000 each had been credited in Account No,62 of Mst. Farah Anwar in Commerce Bank Ltd., are stated to be missing and were not produced.
Furthermore, there is no record available in NBP Sunny View Branch except the day book and cheque book register Exh. P.W.2/2 bearing a signature against entry of issuance of cheque book 888276-888300 which signature purports to be of the accused. The day book stand exhibited as P.W. 1/20. It bears the following five entries relevant to the present case: {{TABLE}} Cases Page Folio Name A/c No, Amount Date Exhibit 1 32 7 A.K.Minhas A/14 5,000 3-4-73 PW1/16 2 52 86 A.W.Siddiq A/94 5,000 30-4-73 PW1/17 3 59 170 A.K.Minhas A/14 5,000 9-5-73 PW1/18 4 105 105 A.Rashid A/114 5,000 30-6-73 PW1/19 5 97 97 Barish Ahmed B/13 5,000 21-6-73 PW2/1 ' Abdul Razzaq, Court witness, produced certified copies of ledger pertaining to Account Nos. A-14 as C.W.1/1, A/94 as Exhs. C.W.1/2, A/114 as Exhs. C.W.1/3 and B/13 as Exh. C.W. 1/4 showing that there was no debit entry of a sum of Rs,5,000 each in the ledgers of these accounts on the dates mentioned in the day book.
5. P.W. 1 Iftikhar-ud-Din was a Senior Clerk in N.B.P. Sunny View Branch, Lahore, during 1972-73. He maintained the Day Book Exh. P.W. 1/20. He deposed that accused Sub-Accountant in the said Branch also used to make entries in the Day Book and accused was personally known to him and had worked with him in the Sunny View Branch and therefore, he identified his handwriting and that original entries in the Day Book were in the hand of accused.
6. P.W. 2 Pervez Ahmed, the then Manager of N.B.P. Sunny View Branch, also deposed that he being colleague of the accused could identify his writing and signature and that said entries on the day book were in the hand of the accused and the said signatures against said entries were of the accused. He also stated that cheque book register Exh.2/2 contained an entry of issuance of cheques book 888276-888300 and there was a signature against the said entry which he identified to be of the accused. This witness also related the story as given above in first para of this judgment but it is obvious that he was not an eye-witness of the said occurrence and had related story which could be constituted on the basis of documents of the bank. P.W.3 Aman Ullah, account-holder of Account No,A/44 in N.B.P. Sunny View Branch, deposed that he had not withdrawn any money from his account from March, 1972 to August, 1972 and had not issued any cheque to any person for withdrawal from his Account. His evidence was a wholly irrelevant in the present case as entries in the Day Book in respect of withdrawals from different accounts do not include in them any entry pertaining to the account of this witness, P.W.4 Aziz-ur-Rehman, Officer in Commerce Bank Ltd., Badami Bagh, Lahore, deposed in respect of accused having opened Account No,62 in the name of his minor daughter Mst. Farah Anwar in Commerce Bank Ltd., Lahore, which was to be operated by him and thereafter deposited 5 cheques and withdrew money through cheques. He produced specimen signature card of the said account with specimen signature on it of the accused Muhammad Anwar Bhatti to show that accused was operating the said account of his said daughter. P.W. 5 is Abdul Majid, A.S.I. Investigating officer. This is all the prosecution evidence.
7. Five cheques on the basis of which a sum of Rs,25,000 had been drawn in collection from N.B.P., Sunny View Branch and credited in Account No,62 of Farrah Anwar were not produced before the investigating officer nor produced in evidence in the case. Those were stated to be missing. For proof of forgery production of the forged documents is essential. The five cheques alleged to have been forged and having not been produced, there is no question of offence o forgery having been proved. In my opinion, therefore, offence under section 468, P.P.C. Is not proved against the accused. Since the forgery of the cheques has not been established, there is no question of the accused having used any forged cheques as genuine knowing them t be forged. The mere fact that there are entries in the day book in his hand relating to 5 withdrawals does not prove conclusively that th accused used any forged cheques knowing them to be forged. Therefore, the offence under section 471, P.P.C. Is also not proved against the accused.
8. The next allegation of the prosecution is that the accused had submitted cheques from his cheque. Book fictitiously shown to hay been drawn by account holders N.B.P. Sunny View Branch and passe them as a result of which the sums of their cheques, five thousand each, was credited in the account of Mst. Farah Anwar which the accused withdrew. To prove this allegation, it was necessary for the prosecution to have proved at least the number of cheques on the basis of which collection had been made from N.B.P. Sunny view Branch so that it may be established from their numbers that they were from the cheque book 888276-888300 issued to the accused for his Account M-192 as Shown by the relevant entry in cheque book issue registe Exh. P.W.2/2. That evidence could have pin-pointed the accused to be the person who had cheated N.B.P. Sunny View Branch and had thus perpetrated the fraud. However, there is no evidence what the number of those cheques were. Five entries of withdrawals in the day boo relevant in this case, do not give the number of cheques on which said withdrawals had been allowed. No doubt the 'Statement of Account' Exh. P.W.4/2 shows the numbers of the cheques on which a sum of Rs 5,000 each had been received in Account No,62 of Mst. Farah Anwar as 888279, 888280, 888R281, 888282, 888284, .888285, 888286, 888287, and 8822888 which all pertain to the cheque book proved to have been issued to the accused but when original ledger of Mst. Farah Anwar was produced in this Court by Aziz-ur-Rehrnan when recalled, it was discovered that the said Nos. Of the cheques were not available in the original ledger and Aziz-ur-Rehman states that these had been added subsequently by him as the police wanted him to trace out those numbers and put them on the said copy and he had after searching out the same from the record of the bank, given those numbers in the said copy. This however, was not permissible as he had to produce a true copy of the original ledger sheet which did not, contain the numbers of the cheques deposited in the Commerce Bank for receipt of sums through collection from N.B.P. Sunny View Branch and this was a wholly illegal interpolation of the 'Statement of Account'. The said entries in the, said statement of account Exh. P.W.4/2 shall, therefore, have to be excluded from consideration. Thereafter there remains no evidence on the record to show what were the numbers of the cheques on the basis of which five sums of five thousand each had been obtained from the N.B.P., Sunny View Branch, Lahore, through collection. Aziz-ur-Rehman should have produced in the Court the record from which had got the numbers of the cheques, received from the accused and sent to N.B.P. Sunny View Branch, Lahore, for collection to enable this Court to make the decision of its own in respect of actual numbers of those cheques. The statement of Aziz-ur-Rehman as to conclusion which he arrived at regarding numbers of the said cheques on perusal of the record cannot be taken to be a gospel truth and had to be scrutinized by this Court for its correctness. The Court cannot accept the same without seeing the said record. Accepting the statement of Aziz-ur-Rehman without seeing that record would amount to surrendering judicial functions by his Court to Aziz-ur-Rehman Which is not permissible. If the cheques had been lost or were not traceable in the Commerce Bank as deposed to by P.W.4 Aziz-ur-Rehman or if the said cheques had been lost from N.B.P. Sunny View Branch, where they had been sent for collection, it was incumbent on the prosecution to have at least proved the numbers of the said cheques drawn on the account-holders of the NBS Sunny View Branch from some other record available in the Commerce Bank Ltd. It is common knowledge that for the presentation/deposit of the cheques drawn on account-holder of another bank, the depositor has to fill in a pay-in-slip which is submitted to the officers/officials of the bank who sign and stamp the same, return the receipt portion to the depositor and retain voucher portion in the bank as record of the bank. The prosecution could have easily recovered the said vouchers duly signed by the depositor to prov that the said cheques which had been deposited in the account of Mst. Farah Anwar were from the cheque book of Muhammad Anwar Bhatt issued to him in connection with his Account No,M-192 of N.B.P., Sunny View Branch and that those had been deposited by the accuse as the said voucher bore the signature of accused Muhammad Anwar, Bhatti. However, neither the said deposit vouchers nor any other record of the Commerce Bank Ltd., was produced to show that the accuse had used any cheques from the said cheque book and deposited the same in Commerce Bank for withdrawal of sums from accounts of account holders of N.B.P. Sunny View Branch. Since this has not been done, there is absolutely no evidence on the record in respect of commission by the accused of offence under section 420, P.P.C.
9. It is true that the day books contains 5 entries of withdrawals of Rs,5,000 each which have been detailed above and it is also proved on the basis of evidence of P.W.1 and P.W.2 that the said entries are in the hand of the accused but the mere fact that these entries are in the hand of the accused does not connect the accused with the offence under section 420, P.P.C. With which he has been charged in this case.
10. It is necessary ingredient of the offence under section 420, P.P.C. That accused should cheat any person and thereby induce him to deliver any property to him but there is nothing on the record to show that the accused did either of these things. Thus the offence under section 420, P.P.C. Is also not proved against the accused.
11. Statement Exh. P.W.4/2 shows that a sum of Rs,5,000 on each of the five occasions was withdrawn from Account No, 62 of Mst. Farah Anwar in Commerce Bank Ltd., Lahore. However, no cheque on the basis on which these withdrawals were made, has been produced on the record.
The case was investigated in the year 1973 when entire record can be expected to be available with the Commerce Bank Ltd. However, neither any cheque was produced then, nor subsequently by Aziz-ur-Rehman P.W., the representative of the said bank when he appeared in evidence in 1980.
The %pecimen signature card which is available in the record and is exhibited as Exh. P.W.4/1 gives the specimen signature of accused, Muhammad Anwar Bhatti instead of Mst.' Farah, Anwar which shows that he was operating the account for her said minor daughter Mst. Farah Anwar. It is submitted by the learned Special Prosecutor as well as the learned counsel for the complainan that proved that it was the accused who had withdrawn said sum under his own signature from the said Account No, 62 of Mst. Fara Anwar. I am afraid, I cannot accept this contention as it is only a assumption of fact which does not necessarily flow out of the said circumstances. Furthermore, the cheque by virtue of which sums had been withdrawn from the said account can be expected to be available in the bank and constituted best evidence in the case had not been produced by the Commerce Bank to show that the accused withdrew the said sums as guardian--operator of account of Mst. Farah Anwar. The mere fact that in the statement of account it is stated that the sums were withdrawn from the account does not conclusively show that it was the accused who had withdrawn the said five sums. If the cheques were not available, the token book could have been produced to show that the accused deposited the cheques for the said withdrawals from the said account. Furthermore, the prosecution has not proved that the cheques on the' basis of which said five sums were withdrawn from Account No,62 as mentioned in column No,3 of statement of accoun Exh. P.W.4/2, were out of the cheque book issued for the account o Mst. Farah Anwar. In these circumstances, the factum of receipt o these sums totalling Rs,25,000 which belonged originally to the N.B.P. Sunny View Branch and had been received in Commerce Bank by was of collection has not been proved. In consequence, the factum o entrustment of the said sum of Rs,25,000 to the accused is also no established. The accused is not for that reason proved to have received and misappropriated the said sum of Rs,25,000 or to have drawn an pecuniary advantage by misusing his position as a public servant. It is, therefore, not established that the accused committed either the offence of Criminal breach of trust or criminal misconduct in his capacity as a public servant.
12. For all the above reasons, I acquit the accused of the scheduled offences under sections 468, 471, 420 and 409, P.P.C. And section 5 of Act II of 1947. He is on bail. His baii bonds stand discharged.
Accused acquitted.