' The prosecution story, as made out in the complaint filed by Muhammad Ashraf, ex-Manager of M.C.B., Hajiabad Branch, Faisalabad, is that on 26-2-1981 at about 9 a.m. Accused Muhammad Sadiq, Senior Vice-President, M.C.B. Regional Office Faisalabad, directed him on telephone that a sum of Rs,50,000 should be advanced as house purchase loan to Abdul Khaliq, Assistant in his branch (M.C.B., Hajiabad Branch) as he had completed five years of service in the bank and was entitled to the said loan and that he should keep ready the said sum and that after a moment he would be coming to get the same. Thereafter accused Muhammad Sadiq, after half an hour, reached there and Muhammad Ashraf paid him the said sum of Rs,50,000 when he was standing outside the branch by the side of his car. On inquiry accused Muhammad Sadiq informed Muhammad Ashraf that in order to show in the bank record justification for the said payment, pay order should be made in the name of Parveen Akhtar and that Abdul Khaliq would get the signature of Mst. Parveen Akhtar, the seller of the house on the same. The complaint further continues that after complainant Muhammad Ashraf had got the said pay order made, he handed over the same to accused Abdul Khaliq. The said accused himself signed the said pay order as Parveen Akhtar and returned it to him which was illegal and that the loan had not been sanctioned and the sum had been obtained by cheating the bank by making a false signature on the pay order. Towards the end of the complaint it was stated that with the said sum Muhammad Sadiq had purchased a flat in Lahore and shown its ownership in the name of Abdul Khaliq. On the basis of this complaint F.I.R. No, 289/81 for offences under sections 420/409/467/468 and 471, P.P.C. Was registered at Police Station Civil Lines, Faisalabad.
2. Muhammad Akram, Inspector/S.H.O. P.S. Civil Lines, Faisalabad, investigated this case. He firstly went to the concerned branch on 11-5-1981, made a sketch, Exh.P.W.8/2, of the place of occurrence.
He recorded the statements of the P.Ws. On different dates. He produced Mst. Parveen Akhtar and accused Abdul Khaliq before Khaliq Dad M.I.C., Faisalabad, on 12-5-1981 and obtained in his presence specimen signatures reading as `Parveen Akhtar' from accused. Abdul Khaliq and specimen signatures of Mst. Parveen Akhtar who was and is the wife of accused Muhammad Sadiq. The said specimens of Mst. Parveen Akhtar are on sheets Exh.P.W.5/7 to 9 and those of Abdul Khaliq are on sheets Exh.P.W.5/10 to 12. On 18-8-1981 he produced accused Abdul Khaliq before Malik Mushtaq, M.I.C., Faisalabad and obtained in his presence specimen signatures as `Parveen Akhtar, on sheets Exhs.P.W.5/1 to 6 in the hand of accused Abdul Khaliq. The said M.I.C. Attested the said specimen sheets. Thereafter, the said pay order, dated 26-2-1981 along with the said specimen sheets were sent to the handwriting expert for his opinion and report. The report, dated 25-11-1981 received was that the questioned signatures as `Parveen Akhtar' on the reverse side of the said pay order were forged with reference to the specimen Urdu writing/signatures made by Mst. Parveen Akhtar on said specimen sheets. Accordingly, both Muhammad Sadiq and Abdul Khaliq were challenged in this case.
3. Initially on 16-6-1985 accused Muhammad Sadiq was charged for offences under sections 409, 468/109 and 471/109 and accused Abdul Khaliq was charged for offences under sections 468, 471 and 409/109, P.P.C. But later on, additional charge was framed against accused Muhammad Sadiq for offences under sections 420/109, 420, P.P.C. And for offence of misconduct under section 5 of Act II of 1947 and accused Abdul Khaliq was additionally charged for offence under section 420, P.P.C. And for offence of misconduct under section 5 of Act II of 1947.
4. Eight P.Ws. Were examined in this case by the prosecution. The Investigating Officer appeared as P.W.B. He gave substantially the same evidence as narrated above. Khaliq Dad and Malik Mushtaq Ahmad, Magistrates appeared respectively as P.Ws. 6 and 7 and proved that the specimens of signatures of Mst. Parveen Akhtar and the specimen writing of accused Abdul Khaliq with words written as Tarveen Akhtar' on the said specimen sheets had been taken in their presence. Qamar Ahmad Bhatti, Handwriting Expert, appeared as P.W.5 and stated that after comparison made by him with the help of enlargements, Exhs.P.W.5/14 to 19 produced by him in this Court, his conclusion was that the two signatures, Exh.P.W.1/1-B and Exh.P.W1/1-C on pay order Exh.P.W.1/1, reading as Parveen Akhtar' did not tally with the specimen signatures of genuine Mst. Parveen Akhtar on Exhs.P.W.5/7 to 9 and were forged. He gave detailed reasons for the same in the said evidence.
Learned counsel for neither of the two accused cross-examined this witness and thus accepted that the statement of this P.W. Duly supported by reasons was absolutely correct and was not open to any exception.
5. Muhammad Ashraf is the star witness of the prosecution in this case. He appeared as P.W.3 and made substantially the same statement which he had made in the complaint submitted to the police. He stated that accused Muhammad Sadiq had told him on telephone that accused Abdul Khaliq had already completed five years of service in the bank and was entitled to get house loan and thus a sum of Rs,50,000 should be advanced to him as house purchase advance. He further stated that on his enquiry accused Muhammad Sadiq informed him that the pay order should be made in the name of Mst. Parveen Akhtar, his wife. It is necessary to mention here that as stated by P.W.3 Muhammad Ashraf also in cross-examination, according to rules and regulations of the bank, in case of house building/house purchase loans, the pay order regarding the payment of the price of house is issued in the name of the seller of the property from whom the bank employee getting the loan has purchased the property. PW.3 Muhammad Ashraf further stated that Mian Muhammad Sadiq told him that he would get the documents completed and give the sanction of this transaction after coming back from Lahore where he was immediately going. The witness continued that Muhammad Sadiq in the end said that he himself was coming to the branch within half an hour and directed him to keep ready a sum of Rs,50,000 in currency notes of Rs,100 denomination each, and, after about half an hour accused Muhammad Sadiq came to the branch in a car, got out of the car, kept standing there, by the side, of his car and on that he (the witness) called Abdul Jabbar, Cashier, sitting unengaged at the time and asked him to bring a sum of Rs,50,000 in currency notes of Rs,100 denomination as he had to pay the said sum to accused Mian Muhammad Sadiq, Zonal Chief, as Iftikhar cashier who was on payment duty at that time was busy.
According to the said witness, Abdul Jabbar P.W. Thereupon, brought a sum of Rs,50,000 from Iftikhar P.W. In the shape of currency notes of Rs,100 denomination and he paid the said sum to Mian Muhammad Sadiq. This P.W. Further stated that he told Mian Sadiq that this payment was illegal and was in violation of the banking law and practice and asked how he should show this payment in the books of the bank and what sort of entry and in whose name it should be made in the bank record and that accused Muhammad Sadiq replied that after completing a pay order in the name of Parveen Akhtar, the same should be handed over to Abdul Khaliq who would get the signature of Mst. Parveen Akhtar, his wife, on the same and the said sum be debited in the books of the bank on the basis of the said pay order in the name of Mst. Parveen Akhtar. Accused Muhammad Sadiq also informed him that he would give sanction of that transaction after coming back from Lahore where he was immediately going and accordingly after going inside the branch he asked Khalid, a clerk in the branch, to prepare a pay order for Rs,50,0(X) in the name of Parveen Akhtar and on completion of the same he handed over the same to Abdul Khaliq and asked him to go and get the signature of Mst. Parveen Akhtar on the said pay order. Continuing the said P.W.
Stated that accused Abdul Khaliq did not move out of the branch and he (the P.W.) asked him after sometime whether he had gone and got the signature of Mst. Parveen Akhtar on the said pay order and Abdul Khaliq accused replied in the affirmative and produced the pay order. The said pay order was found by him to contain the signatures, Exh.P.W.1/1-B, Exh.P.W.1/1-C and Exh.P.W./1/1-E (last on revenue stamps), purporting to be of Mst. Parveen Akhtar and the P.W. Then told accused Abdul Khaliq that the said signatures were not of genuine Parveen Akhtar because he (Muhammad Ashraf P.W.) knew that Abdul Khaliq had not moved out of the branch at all. The P.W. Then asked Abdul Khaliq that since the signatures were not of genuine Parveen Akhtar who would attest the said signatures and on that Abdul Khaliq replied that he would do the same and he (Abdul Khaliq) actually attested the said signatures by appending his own signature Exh.P.W.1/1-D on the back of the said pay order. The said P.W. Further deposed that after getting the entries of the said pay order made in the hooks of the branch, he authorised payment of the said sum of Rs,50,000 by signing the pay order on its face. He further stated that the said entire payment was wholly illegal but he was compelled to make it as he had been ordered to do so by the Zonal Chief, accused Muhammad Sadiq. He also deposed that it was he who had filed complaint, Exh.P.W.3/1. The said P.W. Muhammad Ashraf conceded in cross-examination on him on 6-5-1986 that an application for the grant of loan had been filed by accused Abdul Khaliq which was Exh.D.1 on the record, and on the back page of the said application there was recommendation by him for the approval of the said loan and that he had forwarded the loan application to the Zonal Chief by means of a letter, dated 26-2-1981, Exh.D.2 and loan in question was disbursed in the name of accused Abdul Khaliq and that loan account in the name of Abdul Khaliq had been opened in the branch and that the said sum of Rs,50,000 was shown as debit in the said account and entries to the same effect were made in the books of the branch. He also conceded that accused Abdul Khaliq had subsequently produced in the branch mortgage deed, dated 12-3-1981 registered on the same date, showing the mortgage of the purchased house, namely, Flat No, 81-C, Angoori Bagh Housing Scheme, Lahore, in favour of the bank for the amount of the said loan and that the said mortgage deed was Exh.D.3 on the record of this case. He was shown transfer letter No, NC/ABHS/EC/AO/743, dated 23rd February, 1981 by National Construction Limited Angoori Bagh Scheme, Lahore, informing accused Abdul Khaliq that Flat 81-C in Angoori Bagh Scheme had been transferred in his name on same terms and conditions with a copy to Mst. Parveen Akhtar which letter had been brought by the then Manager of the branch on that day and had been marked Exh.D./4 but he stated that the said transfer letter was never produced before him in the branch. He, however, did not object to the authenticity of the said document and impliedly accepted that the said house now stood transferred in the said scheme in the name of Abdul Khaliq accused. He was also shown original transfer vouchers brought by the Manager of the branch. One was a debit transfer voucher debiting the sum of Rs,50,000 to the loan account of Abdul Khaliq and the other was credit transfer voucher crediting the said sum to the pay order account of Mst. Parveen Akhtar. These original documents were exhibited as Exhs.D.5 and D.6. He conceded that these documents bore his counter-signature and were prepared in the branch by Khalid Ali Clerk. Iftikhar Ahmad, Cashier, appeared as P.W.1 and deposed that on 26-2-1981 Abdul Jabbar had obtained from him a sum of Rs,50,000 (against a pay order which he said would be given later on) for being handed over to P.W.3 Muhammad Ashraf, Manager, who had to pay the same to accused Muhammad Sadiq. He further deposed that later on, after the payment had been made by him, the pay order which bore the signature of Muhammad Ashraf, Manager, in token of his having passed the same as fit for payment and also bore the signature of Mst. Parveen Akhtar, the beneficiary was received by him.
This P.W. Denied that any woman with the name of Mst. Parveen Akhtar had come to the bank and signed the said pay order on its back in his presence and got the payment. This P.W. Thus clearly supported the statement of Muhammad Ashraf P.W.3. Similarly, P.W.2 Abdul Jabbar stated that he had obtained a sum of Rs,50,000 from P.W.1 Iftikhar Ahmad, Cashier, to give it to Muhammad Ashraf, Manager, for being paid to accused Muhammad Sadiq against a pay order. He further deposed in cross-examination that the said pay order was never given to him and that he knew nothing about the said document. He denied the suggestion that Mst. Parveen Akhtar had directly got the payment from P.W.1 Iftikhar Ahmad, Cashier, and signed the pay order on the back in token of her having received the sum right in the presence of said Iftikhar Ahmad. This P.W. Also, therefore, supported P.W.3 Muhammad Ashraf.
6. As against the above prosecution evidence regarding the actual facts of the case the two accused produced Mst. Parveen Akhtar as D.W.1, Badar Din as D.W.2, and Ghulam Jilani Shahid as D.W.3. The pith of their evidence is that Mst. Parveen Akhtar came to the branch on 26-2-1981 in a Toyota car given to Muhammad Sadiq accused by the bank which was driven by D.W.2 Badar Din, driver, and that Mst. Parveen Akhtar had signed the pay order which had been brought to her while she was sitting in the car and she had obtained the sum of Rs,50,000 while sitting in the same car.
So far as Ghulam Jilani Shahid is concerned he deposed that he was a gunman in Hajiabad Branch of M.C.B. At that time and was posted on the gate of the branch and had seen that Mst. Parveen Akhtar had come in the branch along with Badar Din driver, and in his presence she made signatures on pay order Exh.P.W.1/1 and thereafter Abdul Khaliq accused and Muhammad Ashraf, Manager of the branch came out of the branch and gave a sum of Rs,50,000 in his presence to Mst.
Parveen Akhtar on the basis of the said pay order. This evidence was diametrically opposed to the express suggestions given by the defense counsel to the P.Ws. To the effect that Mst. Parveen Akhtar had come to the branch, entered the premises of the same and had signed pay order and obtained a sum of Rs,50,000 from Iftikhar Ahmad, P.W.1. To be more specific it occurs in the cross- examination of P.W.1 that it was incorrect to suggest that any woman Mst. Parveen Akhtar by name had come to the branch and signed on the back of the payment order in his presence and got the payment from him. P.W.2 also stated in cross-examination that it was incorrect to suggest that Mst.
Parveen Akhtar had got directly payment from Iftikhar Ahmad. Again P.W.3 stated in his cross- examination that it was incorrect that on the basis of token No,12, marked on the back of the pay order Exh.P.W.1/1 payment of Rs,50,000 had been made to Mst. Parveen Akhtar and not to Muhammad Sadiq. This shows that the instructions originally given by the accused to their learned counsel were that Mst. Parveen Akhtar had gone inside the branch of M.C.B. Hajiabad, Faisalabad and had signed the said pay order Exh.P.W.1/1 and had obtained the said sum of Rs,50,000 from P.W.1 Iftikhar Ahmad, Cashier of the branch, personally. It appears to me, therefore, that the evidence of the said three defence witnesses, namely, Parveen Akhtar, Badar Din and Ghulam Jilani to the effect that Mst. Parveen Akhtar came outside the branch in car and remained sitting inside it where she signed the pay order and where she was given the said sum of Rs,50,000 was a later thought and was absolutely incorrect and actually had not been concocted at the specific time when the prosecution evidence was being recorded. This circumstance is sufficient to discredit the evidence given by the said three D.Ws. I accordingly reject their testimony.
7. The upshot of the above discussion is that all the facts as stated in the statement of P.W.3 are absolutely correct and that the said facts are that accused Muhammad Sadiq had directed Muhammad Ashraf P.W.3 to pay him a sum of Rs,50,000 which he needed immediately to purchase a house in Lahore and to enter it into the books of the branch as a loan in favor of Abdul Khaliq accused who had already completed five years of his service in the bank and that he had A obtained the said sum before application for house purchase loan was even written, signed by said Abdul Khaliq or the said loan was sanctioned. It also' stands proved that the pay order had been made in the branch and had been handed over to accused Abdul Khaliq and he had not moved out of the branch and had given back the pay order, then bearing ostensibly the signatures of Mst. Parveen Akhtar to Muhammad Ashraf P.W. This part of the statement of Muhammad Ashraf was never contested in cross-examination by the accused. In any way, it was fully corroborated by the statement of P.W.5 Qamar Ahmad Bhatti, Handwriting Expert, who had given a clear opinion based on sound reasons showing that the said signatures on the back of the pay order did not correspond in writing characteristics with the specimen signatures of Mst. Parveen Akhtar, duly proved in evidence.
8. In the context of above facts, found proved on record, the question of the authority of the accused Muhammad Sadiq to sanction the loan to accused Abdul Khaliq is now to be examined in the light of the evidence on record. P.W.3 Muhammad Ashraf stated that on 26-2-1981 accused Muhammad Sadiq had informed him that he would give sanction for the said house purchase loan after coming back from Lahore where he was immediately going. In cross-examination P.W.3 Muhammad Ashraf had stated that accused Muhammad Sadiq was not authorized to sanction the loan (house purchase loan) because for house building or house purchase loans for the staff members, a committee consisting of Circle Executive, as Chairman, Vice-President of the concerned Zone and Head of the Inspection Cell of Circle Office, alone could sanction the loan. The post of Circle Executive is superior in rank to S.V.P. Or V.P. Of the concerned Zone who are called Zonal Chiefs or Regional Managers and accused Muhammad Sadiq was the Zonal Chief/Regional Manager, in his capacity as S.V.P. Of Faisalabad Zone and was only one of the members of the said committee and could not have sanctioned the loan without the concurrence of the other two members. P.W.4, S. Aminullah, Circle Executive M.C.B., Faisalabad, on 26-2-1981, stated that firstly accused Muhammad Sadiq had absolutely no authority to sanction the house building/purchase loan of any amount to an employee of the bank and that he (witness S. Aminullah) had that authority and that the loan case in respect of advance of house building loan to accused Abdul Khaliq had been submitted to him but he had rejected the same as the documents attached thereto were incomplete. In cross-examination he conceded that an employee of the bank who had completed five years of service became entitled to house building/house purchase loan under the rules of the bank and accused Abdul Khaliq had completed five years of service. He also stated that he had given an order that the said loan had been wrongly paid and that the same should be got back from the persons to whom it had been given, in lump sum. He conceded that letter No, REF-ASS/549, dated 16-12-1980, Exh.D.A., issued by the Senior Executive Vice-President, M.C.B.
Authorized Muhammad Sadiq accused to sanction loan to the extent of Rs,2,50,000 against pledge of goods but the said letter did not give any power to accused Muhammad Sadiq to give house building/purchase loan nor it gave him power to grant loan against mortgage of immovable property. He also denied the suggestion that on the basis of Exh.D.A. The Zonal Chiefs used to sanction loan even for house building purposes against mortgage of property. The P.W. Further deposed that if at all they were doing so it was illegal and could not have been allowed. He accepted that circular letter No, H0/10/STAFF, dated 14-1-1979, Exh.D.B. Had been issued by the Senior Executive Vice-President of M.C.B. He also conceded that Exh.D.C. Was a power of attorney given by the bank to accused Muhammad Sadiq. He, however, voluntarily stated that the said power of attorney is in respect of commercial transactions only.
9. In defence, so far as the question of authority of accused Muhammad Sadiq to sanction the house purchase loan is concerned, besides relying on hank letters, Exhs. D.A., D.B. And power of attorney Exh.D.C., the accused also produced Safdar Hussain as D.W.4 who was working as Assistant in M.C.B., Baghbanpura, Lahore, and accused Muhammad Sadiq himself appeared as D.W.5 and produced M.C.B. Circular letter No, H0/534/PI, dated 22-10-1980, Exh.D.W.5/1 and letter NoADV/008/Co, dated 14-11-1981 of Circle Executive as Exh.D.W.5/2 I have looked into the said documents. They appear to show that a Zonal Chief/Regional Manager has power to sanction loan to the extent of Rs,2,50,000 against pledge of goods in commercial transactions but has no power to grant house building loan. However, para. 8 of the power of attorney, Exh.D.C. Shows that accused Muhammad Sadiq had the power to issue any loan. Apart from that Safdar Hussain D.W. 4 stated that he had been granted house building loan by the Regional Chief of M.C.B. Lahore. He produced certified copy of the order of the sanction of house building loan in his favor which is Exh.D.W.4/1 on the record. This document clearly shows that it was issued by the Regional Office and was signed by the Regional Manager/Zonal Chief and is a document showing a sanction of Rs,50,000 as house building loan. Seen in the light of the above circumstances it seems to be extremely doubtful that the accused was not authorized to grant house building loan. As a matter of fact statement of Safdar Hussain and the document Exh.D.W.4/1 appear to show that the Zonal Chief had also the authority to issue loans in that connection to an employee of the bank and in any way on the basis of the said provision in the said letter of authority he could entertain a bona fide belief that he had that authority. It is true that P.W.4 S. Aminullah stated that if that was done it was illegal but the question remains that on the basis of the said para. In the power of attorney and the practice generally prevailing, accused, Muhammad Sadiq, in his capacity, as Regional Manager, could have a bona fide impression that he had the authority to issue loan of that nature too although in fact he may have had no such authority. P.W.3 Muhammad Ashraf conceded in his cross-examination that if a loan is to be immediately given to a person, the Zonal Chief can sanction the same orally also. In these circumstances, it will have to be taken for granted that accused Muhammad Sadiq had also a bona fide impression that he had the authority to sanction the said loan orally too. That takes away the fog of criminality from around the accused Muhammad Sadiq in that regard.
10. The question that now arises is whether in obtaining the said sum of Rs,50,000, in advance of the preparation of the pay order in favor of Mst. Parveen Akhtar, his wife, accused Muhammad Sadiq had committed any offence. I have given my serious thought to that question and have come to the conclusion that in doing so he had not committed any offence. The moment he had sanctioned the loan, even if orally, the said sum became the property of Abdul Khaliq and through him 'of Mst. Parveen Akhtar to whom admittedly it was to be paid on account of sale of the property by her to Abdul Khaliq. The said sum had not been entrusted to Muhammad Sadiq for the purpose of being kept in safe custody on behalf of the bank and the act of handing over of the said sum to him did not amount to entrustment within the meaning of the said word as used in section 405, P.P.C. Apart from that in the same breath in which accused Muhammad Sadiq asked P.W.3 Muhammad Ashraf Manager on telephone to pay him a sum of Rs,50,000, he also said that the said sum was to be a house purchase loan in the name of accused Abdul Khaliq, Assistant, who was undoubtedly entitled to it. The assertion that it was to be a loan was not taken at some later time so as to give an impression of camouflage of amount sought to be embezzled from the branch. It was clearly a loan right from the beginning. It, therefore, was abs initio a loan in the name of accused Abdul Khaliq and was undoubtedly refundable by said Abdul Khaliq accused whether in lump sum or by installments with interest and the said loan stood regularly shown in the books of accounts of the branch as house purchase loan in the name of accused Abdul Khaliq and accused Abdul Khaliq had been proved to have purchased flat from Mst. Parveen Akhtar which he mortgaged also in favor of the bank to secure the money of the bank and there was no question of said sum having been misappropriated by accused Muhammad Sadiq who had received the same. Accused Muhammad Sadiq had, therefore, not committed the offence under section 409, P.P.C. Since no offence under section 409, P.P.C. Had been made out against Muhammad Sadiq no offence can be said to have been made out under section 409/109, P.P.C. Against accused Abdul Khaliq too.
11. The said accused had also been charged under sections 468/109 and 471/109, P.P.C. While accused Abdul Khaliq had been charged for the offence under sections 468 and 471, P.P.C. In this context, therefore, the incidents of offence of forgery under section 468, P.P.C. Have got to be considered. Let the same be considered first against accused Abdul Khaliq. It is true that according to my findings on the factual plane, accused Abdul Khaliq had made signature of Mst. Parveen Akhtar on the pay order but Abdul Khaliq was the husband of the real sister of Mst. Parveen Akhtar wife of accused Muhammad Sadiq and thus can be deemed to have an implied authority to make signature as Parveen Akhtar on behalf of Parveen Akhtar. Making of a false document is the basis of forgery as defined in section 463, Cr.P.C. And para. Firstly of section 464, P.P.C. Provides that a person is said to make a false document who dishonestly or fraudulently signs a document with the intention of causing it to be believed that such document had been signed by the authority of a person by whose authority he knew that it was not signed. In the present case, however, it appears that accused Abdul Khaliq had the implied authority to sign on behalf of said Mst. Parveen Akhtar as Mst. Parveen Akhtar never made any complaint against the said signature because P.W.1 Iftikhar Ahmad in his cross-examination stated that no person by the name of Mst. Parveen Akhtar even came to him and complained that she had not received the sum of Rs,50,000. And assuming that accused Abdul Khaliq had not even the implied authority from Mst. Parveen Akhtar to make her signature, even then, at worst signatures made by him on the said pay order were only unauthorized signatures which were capable of ratification and Mst. Parveen Akhtar did ratify the said signatures by appearing in the witness-box and not objecting to the said signatures and on the other hand owning them to be her own signatures. Apart from that in making signature of Mst.
Parveen Akhtar, on the said pay order, accused Abdul Khaliq had not done so dishonestly i,e, with the intention of causing wrongful gain to himself or wrongful loss to Mst. Parveen Akhtar or fraudulently, i,e, with intent to defraud the bank. Mens rea was thus conspicuously absent in his said act. I am fortified in this view of mine by the law laid down in Pramatha Nath v. State AIR 1951 Cal. 581 in which it was held that in every case of forgery when the question of authority is raised it is essential to prove not only the lack of authority but also dishonest intention with probably more than usual care and that mere abuse of authority did not necessarily lead to the conclusion that there was forgery and that it was not forgery where the act was done under the honest belief that the authority doing it had a right to do it although in point of fact he had no such authority.
Accordingly in the act of making of the said signatures on the pay order, accused Abdul Khaliq had no criminal intention to cheat Mst. Parveen Akhtar and misappropriate the said sum given thereon but for the valid purpose of showing that Mst. Parveen Akhtar had received the said sum of Rs,50,000 as the seller of the property. In these circumstances, I am of the view that accused Abdul Khaliq committed no forgery in making the signature of Mst. Parveen Akhtar on the said pay order.
12. Since the offence of forgery under section 468, P.P.C. Has not been proved against accused Abdul Khaliq there is no question of offence under section 471, P.P.C. Being proved against him and offence under sections 468/109 and 471/109 being proved against accused Muhammad Sadiq.
13. Accused Muhammad Sadiq had also been additionally charged for offence under sections 420 and 420/109, P.P.C. However, facts of the case recounted above, do not show that he made any misrepresentation and played any deception as a result of which he induced P.W.3 Muhammad Ashraf to deliver him the said sum. P.W.3 Muhammad Ashraf paid him the sum knowing fully well that it was to be a loan in favour of Abdul Khaliq. Accused Muhammad Sadiq cannot, therefore, be said to have committed offence under section 420 or 420/109, P.P.C.
14. Accused Muhammad Sadiq had also been charged with offence of misconduct under section 5 of Act II of 1947. There is, however, nothing to show that dishonestly by abusing his official position he procured the pecuniary advantage of said sum of Rs,50,000. The said sum was obtained by his wife validly as consideration for sale of flat by her to accused Abdul Khaliq. Accordingly offence of misconduct under section 5 of Act II of 1947 does not stand proved against him.
15. The accused, Abdul Khaliq, has also been additionally charged for offence under section .420, P.P.C. And misconduct under section 5 of Act II of 1947. It is apparent from the evidence that accused Abdul Khaliq neither cheated the bank at any time nor drew any pecuniary advantage by abusing his official position. Accordingly, no offence under section 420, P.P.C. And no offence under section 5 of Act II of 1947 has been made out against the said accused too.
' For the foregoing reasons, I am of the view that no scheduled offence has been proved to have been committed in this case by either of the two accused.
' I, therefore, acquit the said two accused, Muhammad Sadiq and Abdul Khaliq of all the above- mentioned scheduled offences with which they were charged in this case. They are on bail. Their bail bonds stand discharged. .