1. ' Accused Shaukat Saeed, who in the year 1984 was working as Grade-3 Officer in the Administration Section of the National Bank of Pakistan, Zonal Office, Zone "B", Hyderabad, with duties which included preparation for payment of water, telephone and electricity charges payable by the Zonal Office, has been tried on the charge of committing offences punishable under sections 409 and 468, P.P.C., which charge was framed by my learned predecessor on 22-6- 1986.
2. ' The prosecution version as contained in the complaint, dated .25-6-1986, made by Saleem Ashraf, the then Zonal Chief of National Bank of Pakistan at Hyderabad reads as follows:- "Mr.Shaukat Saeed Memon s/o late Mohammad Ishaque who is at present serving as Officer Grade-III in Administration Section of Zone, 'B' NBP-Hyderabad was dealing with the maintenance of accounts of utility bills and other accounts pertaining to the Zonal Office. According to procedure credit vouchers were issued from this Zonal Office in favour of the concerned department to which the payment were tendered and sent to the NBP/Commercial Area, Latifabad, Hyderabad for issue of payment order.
3. However, the above-named accused who was responsible for payment of utility Bills through such payment orders, fraudulently added his name in the following ,credit vouchers in order to obtain payment order in his own name and get it encashed. Although as per procedure amount of the Bill was to be adjusted directly on the basis of payment orders but the said named accused obtained cash against the payment orders which he himself misappropriated and then fraudulently fixed forged Receipt stamp and signature over the utility bills showing thereby that the amount of the Bills had been duly credited in the accounts of the relevant departments keeping the forged receipts on record.
4. ' The following are the defaults of such misappropriation of the Bills:- CreditVoucherP.O.No. &date /Suspense A/C DateBills Pertaining toDate of theBank to which Pertaining Bill shown the bill was as paid up to be paid 7-2- 85360.00Debit Suspense A/c. dated 7-2-1985 H.D.A.Water 11-2-1985 Chargesbill of11-2-1985 Allied Bank of Pakistan.
5. Latifabad, Unit No.2 18-2- 855440.70E-496612 Dt.18-2-85Telephone Bills of Rs.3167/-& Rs.2273/70-- -18-2-1985-do--- 13-3- 85490.00E-496686 Dt: 13-3-85Electricity Bill WAPDAAmount drawn -do- by him but bill not paid, Amount subse--quently reco--vered from him and Bill paid on 28-3-1985 21-3- 856154.00E-496699 Dt.21-3-85Telephone Rs.1378.00 Rs.4776.00 Rs. 6154.0021-3-85 Allied Bank Bills of Pakistan, Latifabad, Unit No. 2.
6. ' On 26-3-1985, the Telephone Department made a demand on telephone for payment of the bill pertaining to the month of December, 1984 but they were informed that the Bill had , already been paid but on their insistence the matter was checked up with Allied Bank and it was revealed that no payment was at all made. Accordingly the accused was interrogated and the Bills examined which transpired that the accused. Had misappropriated the above amounts in the aforesaid manner, and he confessed his guilt in the presence of the undersigned . And Mr.Najamuddin Ahmed, Officer Grade-II, Manager Adminis4111 tration of this Zone in writing. The accused thereafter made good the misappropriated amounts which later on were paid to the relevant departments. The accused has also submitted his resignation from the Bank's service.
7. ' The matter was referred to the Controlling Officer who has directed us to file a case against the said accused. You are, therefore, requested to register a case against Mr.Shaukat Saeed Memon s/o (Late) Mohammad Ishaque residing at House No,448/4 Saddar Bohari Mohallah Hyderabad under section 409 Cr.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, and send a copy of the F.I.R. To this office."
8. ' Six witnesses have been examined by the prosecution in support of their case against the accused. They are (1) Saleem Ashraf, the Zonal Chief, who has lodged the complaint with the F1A against the accused; (2) Imam Bux Shaikh, an officer in the N.B.P., Commercial Area, Latifabad, who has testified that the amounts of the two pay orders, Ex.2/B-5 (Rs,5,440.70) and Ex.2/D-5 (Rs,6,154) were paid to the accused after he had passed the said two pay orders, while the amount of the pay order, Ex.2/C-4 (Rs,490) was paid to the accused after the pay order had been passed by Ghulam Mustafa, another officer of the branch; (3) Najmuddin Ahmed, Manager Administration, in the Zonal Office of the N.B.P., who had passed the debit vouchers, Exs.2/A-5, 2/B-3, 2/B-4, 2/C-2 and 2/D-3, after they had been prepared by the accused; (4) Abdul Haq, who was cashier at the commercial Branch of the N.B.P. At Hyderabad and who had made payment to the accused of Rs,5,440.70 on the pay order Ex. 2/B-5 and an amount of Rs,6,154 on the pay order Ex.2/D-5; (5)
9. Akhtar Hussain, Manager at the Public School Branch, Hyderabad, of the Allied Bank Ltd., who has stated that the stamps purporting to bp of the Allied Bank Ltd., on the bills, Exs.2/A-4, 2/8-2, "2/D-1 and 2/D-2 are forged and not genuine; and (6) Inspector Fazlur itehman, who had registered the F.I.R., arrested the accused and investigated the case. The prosecution have also produced a number of documents including the three confessional statements of the accused said to have been made before complainant Saleem Ashraf, Exs.2/A-1, 2/A-2 and 2/A-3; the utility bills, Exs.2/A- 4, 2/B-1, 2/B-2, 2/C-1, 2/D-1 and 2/D-2; debit vouchers, Exs.2/A-5, 2/B-3, 2/8-4, 2/C-2 and 2/D-3; the credit vouchers, Exs. 2/B-8, 2/C-3, 2/D-4, 2/E-1 and 2/8-2 and the pay orders Exs.2/B-5, 2/C-4 and 21D-5.
10. ' The accused, in his statement recorded under section 342, Cr.P.C., has admitted that he had received for payment to the relevant authority or utility concerned of the amounts of the utility Ex.2/B-1 (for lls.3,187), Ex.2/B-2 (for Rs,2,273.70), bills Ex.2/A-4 (for Rs,380), Ex.2/C-1 (for Rs,411), Ex.2/D-1 (for Rs,4,476) and Ex.2/D-2 (for an amount of Rs,1,378), but has asserted that he had handed over these amounts to the Manager Administration but had not retained the same. The accused has also admitted that he had made the confessions, Exs.2/A-1, 2/A-2 and 2/A-3, but he has asserted that these confessions were extracted from him by threats and pressure and that they were all taken from him on the same day, namely, 25-3-1085. He has also denied that he had subsequently added his name to the credit vouchers, Exs.2/B-8, 2/C-3 and 2/D-4. In his defence he has examined Cashier Abdul Haq and Murtaza Baluch but nothing worth-while has been stated by them. D.W. Abdul Haq has stated that he has not personal knowledge of this matter at all, while.
11. D.W. Chulam Murtaza has stated that he had put his second signature on the voucher, Ex.2/C-4, and thereafter passed on the voucher to the cashier for making payment to the person in whose favour the voucher was made out.
12. ' It was contended by Mr.Saleem Karamali, the learned counsel for the accused,-
(1) that the prosecution have failed to explain the delay of over three months in the lodging of the 17.1.R.; and
(ii) that it is inconceivable that the accused could have made three successive confessions, one after the other, In a matter of about 4 days, and that looking to the circumstances in which these confessions were made it is apparent that the confessions were the result of promises made to the accused and undue pressure exercised upon him.
13. ' Mr.Ansari, the learned Prosecutor, on the other hand submitted that there was not only unimpeachable evidence against the accused on the charge of criminal breach of trust, but the accused himself has admitted having received the amounts of the utility bills and has failed to account for the same. On the charge of forgery the learned Prosecutor relied upon the confession, Ex.2/A-1, made by the accused. He was, however, unable to explain why the accused should have made as many as three different confessions on different dates. The points which arise for determination in this case are:-
(1) Whether the accused had received the amounts of the utility bills, Exs.2/A-4, 2/B-1, 2/B-2, 2/C-1, 2/D-1 and 2/0-2, totalling Rs,12,440.70, for making payment for these bills?
(2) Whether the accused, instead of making payments of the bills, committed criminal breach of trust of the amounts received by him?
(3) Whether the accused forged seal of the Allied Bank Limited on the bills, Exs.2/A-4, 2/B-1, 2/B-2, 2/C-1, 2/D-1 and 2/D-2?
14. My findings on the above issues and the reasons in support thereof are as hereunder:- There is overwhelming evidence to show that the accused had received the amounts of the water, telephone and electricity bills Exs.2/A-4, 2/B-1, 2/B-2, 2/C-1, 2/D-1 and 2/D-2, totalling Rs,12,440.70.
15. The debit vouchers, credit vouchers as well as pay orders for these bills have been produced, all of which bear the signature or the initials of the accused. There is further the evidence of Cashier, Abdul Haq, by whom the amounts of the pay orders, Ex.2/B-5 (for Rs,5,440.70) and Ex.2/D-5 (for Rs,:3,154) were paid to the accused. The witness has also produced the entry from the cashier's payment book for 13-3-1985, Ex.5/A-3, for payment of an amount of Rs,490 in respect of the water bill, Ex.2/C-1, for the said amount. Finally there is admission of the accused himself that he had received the amounts, of these bills.
16. ' Although the amounts of the above-said bills were received by the accused, the bills were not paid, except that in the case of the water bill, Ex,2/C-1, though the amount of the bill was paid to the accused on 13-3-1985, the payment of the bill was made on 28-3-1985. There was thus temporary misappropriation of the amount of this bill while in respect of the remaining bills payment was not made at all. It has been asserted by the accused that though he had received the amount of these bills, he had paid the same to the Manager. There is not a particle of evidence in support of this claim by the accused. The Manager, PW. Najmuddin Ahmed, has been examined by the , prosecution but no question was even suggested to him in cross-examination that these payments were handed over by the accused to him. The credit vouchers were in the name of the accused as also the pay orders, Moreover, it was the duty of the accused to make the payment of the utility bills. There was, therefore, absolutely no reason for the accused to have made over the amounts of the bills to the Manager. Furthermore, if the accused had made over the amounts of the bills to the Manager, he would not have repaid these amounts as he has done under the cash vouchers, Exs,2/E-1 and 2/E-2. The accused, in his own hand, has written on the reverse of the cash voucher, Ex.2/E-1 "part amount refunded in connection with the amount already drawn by me on 18-2-1985 and 21-3-1985 for payment of telephone bills, voucher dated 8-2-1985 for Rs,5,440,70 and voucher dated 21-3-1985 for Rs,8,154 total Rs,11,594.70". Similarly on the reverse of the cash voucher Ex,2/E-2 for R1.4,454.70; the accused in his own hand has recorded "being the balance amount payable by me to the bank including bill of Rs,380 relating to water charges, voucher dated 13-2- 1985". It is thus clear that the accused has committed criminal breach of trust in respect of a total amount of Rs,12,440.70 on the above six utility bills.
17. ' The charge framed against the accused in regard to the criminal breach of trust committed by him is under section 409, P.P.C. That section is applicable to criminal breach of trust committed by a public servant, a banker, merchant, factor, broker, attorney or agent. There is no evidence indicating that the accused is a public servant, merchant, factor or broker. No power of attorney appears to have been given to the accused by the bank. At least none has been produced nor even it has been asserted that any such power of attorney was given to him. The accused thus cannot be considered to be an attorney or agent of the bank. The accused also cannot be considered to be a banker as he was merely a Grade-3 Officer in the Zonal Office of the Bank. He was neither entrusted with the duties of receiving cash on behalf of the bank nor making payment on behalf of the bank. The term "banker" has been defined in Black's law dictionary as: "In general sense, person that engages in business of banking. In narrower meaning, a private person who keeps a bank; one who is engaged in the business of banking without being incorporated. One who carries on the business of banking by receiving money on deposit with or without interest, by buying and selling bills of exchange, promissory notes, bonds or stock, or other securities, and by loaning money without being incorporated." In. Duriswami Chuttiar v. Dindigul Urban Cooperative Bank Ltd. A I ft 1957 Mad. 745, it was held by the Madras High Court that no person or body corporate or otherwise can be of banker who does not (1) take deposit accounts, (2) take the current accounts, (3) issue any cheques, and (4) collect cheques crossed and uncrossed for his customers. It has been held by the Calcutta High Court in the case reported in AIR 1950 Cal. 57 "that persons working in a bank are not bankers" and therefore section 409 has no application in respect of alleged criminal breach of trust by such person. Looking to the nature of duties of the accused and the low position held by him in the bank, it cannot be said that the accused is a banker. Accordingly the correct section which would be applicable to the accused regarding criminal breach of trust committed by him would not be section 409, P.P.C., but section 408, P.P.C., since undoubtedly he was an employee of the bank and it was in that capacity that he had been, entrusted with monies for the payment of the bills.
18. ' There remains the issue whether the accused forged the seal of the Allied Bank Limited on the bills Exs.2/A-4, 2/B-1, 2/B-2, 2/C-1, 2/D-1 and 2/D-2. The only evidence on this point, as conceded by the learned Prosecutor, is the confession of the accused, Ex.2/A-1, made in the presence of the Zonal Chief, Saleem Ashraf, and the Zonal Manager, Najmuddin Ahmed. Now in the first place, in the confession Ex.2/A-1, the accused has not stated that he had forged the stamp of the Allied Bank on the bills in question. What the accused has stated in the confession is: "I admit that the amount taken by me from the N.B.P. Was misappropriated by me and kept by me illegally producing receipts bearing ficticious stamps of Allied Bank Limited Latifabad Branch, Utility Service. It is possible that the forgery was committed by somebody else and the accused merely produced the forged documents. Moreover, I am inclined to look upon the confession with suspicion. In the first place I fail to understand why the accused had made 3 different confessions on 3 different dates.
19. No P.W. Has explained the reasons for the accused to make 3 different confessions. As the subsequent 2 confessions fill the lacunae in the first confession it would not be unreasonable to assume that the accused was being coerced into making full confession in respect of the various amounts misappropriated by him and also to furnish detailed evidence against himself. Moreover, the confessions have been made to the Zonal Chief who was obviously a person in authority vis-a- vis the accused. No doubt the Zonal Chief as well as Manager Najmuddin Ahmed have asserted that the confessions were voluntarily made by the accused and no threats, inducement, or promises were made to him, but the circumstances in which the confessions were made indicate otherwise. It has been admitted by complainant Mohammad Ashraf that the accused was called in the Zonal Office on 26-3-1985 at about noon for making the confession but was allowed to go home at about 9.00 P.M. It was not explained by complainant Mohammad Ashraf or any other witness why it took from noon to 9 P.M. For the accused to make the confession. The long time that the accused was made to be at the Zonal Office would seem to suggest that it was used for putting pressure on the accused to make the confession. There are 3 other circumstances which make the voluntary nature of the confession doubtful. It has been admitted by the Zonal Chief, Saleem Ashraf, that at least till 28-3-1985 the accused was in service and had not been suspended. If the accused had made a voluntary confession on 26-3-1985, admitting his guilt why was he allowed to continue in service. His continuation in service possibly suggests that a promise was held out to him that he would be allowed to continue in service if he confessed and repaid the amount misappropriated. The second circumstance is that though the complaint lodged by the Zonal Chief, Saleem Ashraf, wa's made almost 3 months after the misappropriation by the accused was detected and he had admitted his guilt, it does not make mention of the accused having made 3 separate confessions. Also it would appear from the complaint that the accused was not dismissed from service but he had submitted his resignation from the bank's service and it is only on the orders of the higher banking authorities that the case was registered against .The accused.
20. This explains the delay in the lodging of the complaint after such a lapse of time, as apparently upto the level of Zonal Chief, the lodging of the complaint was not suggested. Finally, it may be mentioned that though other documents were produced by the bank before the Investigating Officer, the 3 confessions were not produced before him.
21. ' The upshot of the above discussion is that there is no tangible and reliable evidence to hold that the accused has committed forgery and I would accordingly acquit the accused of the charge u/s 468 E PPC. There is, However, overwhelming evidence against the accused of his having committed criminal breach of trust in respect of the amount of Rs,12,440.70. I would accordingly convict the accused of an offence under section 408, P.P.C. The accused has already repaid the entire amount and has also resigned, from the service of the bank as appears from the complaint made to the police by the Zonal Chief, Saleem Ashraf. The accused is a young man and according to his learned counsel he comes from a good family and has repented of his F criminal activities. Taking all these factors into consideration I would sentence the accused to imprisonment till rising of the Court and also would impose on him a fine of Rs,25,000 or in default to undergo R.I. For 6 months.