' KHALIL-UR-REHMAN RAMDAY, J.--- Iqbal Ahmad appellant was charged with the alleged commission of offences punishable under sections 403 and 420 of the P.P.C.
2. Through a judgment, dated 31-10-1988, passed by the learned Special Court (Offences in Banks), Lahore, the said Iqbal Ahmad was acquitted of the charge under section 403, P.P.C. But was convicted for the commission of an offence punishable under section 420, P.P.C. And was sentenced to five years' R.I. As also to pay a fine of Rs,25,000 or in default of payment of the same, to undergo a further R.I. For 1-1/4 years. Out of the said amount of fine, if realised, an amount of Rs,20,000 was to be paid to the Timber Market Branch of H.B.L., Lahore and the remaining amount was to be confiscated to the State.
3. This is an appeal filed by Iqbal Ahmad challenging his conviction and the resultant punishments as above-described.
4. Iqbal appellant was maintaining a Savings Account bearing No,3546 at the Lahore Timber Market Branch of Habib Bank Limited. On 19-5-1981, the amount lying to his credit in the said account, as per the ledger (Exh.P.W.3/4), was Rs,4,535. He withdrew Rs,500 on 30-5-1981 vide cheque No,909489 (Exh.P.W.1/1) and the balance now amounted to Rs,4,035.
5. The prosecution case is that on the left side of every entry in the ledger, an 'Equal to' sign (=) is made to avoid any fraudulent addition to the amount entered. It was alleged that the sign ( = ) was scribbled in a way that it was mistakenly read as the figure 2 and the balance entry of Rs,4,035 in the appellant ledger came to be read as Rs,24,035 as on 30-5-1981.
6. This is where the problem started.
7. On 2-6-1981, Iqbal appellant presented a cheque bearing No,909490 (Exh.P.W.1/2) for an amount of Rs,500 which was paid and on account of the above-described mistake, the balance in the ledger, was entered as Rs,23,535.
8. It is claimed by the prosecution that while receiving the above-mentioned payment of Rs,500 on 2-6-1981, Iqbal appellant asked Nazar Hussain (P.W.5) about the balance amount in his account and was informed that he had Rs,23,535 lying to his credit.
9. Iqbal appellant immediately got a new cheque book issued as the above-mentioned cheque bearing No,909490 (Exh.P.W.1/2) was the last cheque in his cheque book. He then allegedly.
Approached the Manager of the Branch (Zawar Hussain P.W.1) and requested him to fill up a cheque for Rs,20,000. Iqbal appellant is allegedly, not educated enough so as to fill out cheques.
10. Zawar Hussain Manager (P.W.1) filled up the cheque in question for Rs,20,000. This cheque bears No,633231, is dated 2-6-1981 and is Exh.P.W.1/3.
11. Since the account held by Iqbal appellant was a Savings Account and since withdrawal of an amount exceeding Rs,15,000 required a prior notice, as per Bank regulations, therefore, P.W.1 claims to have informed Iqbal appellant accordingly.
12. The appellant allegedly pleaded that he was employed in Saudi Arabia and had to carry out some repairs to his house before he returned to work, therefore, he was in urgent need of money.
P.W.1, then, allegedly got an undated withdrawal notice signed by the appellant and paid him the said amount of Rs,20,000. This notice is Exh.P.W.1/4.
13. The appellant allegedly came back the next day i,e, on 3-6-1981 and presented another cheque for Rs,3,500.
14. While posting the entry on the ledger, against this cheque, the posting clerk (P.W.5) detected the mistake and payment of Rs,3,500 against this cheque No,633232 was accordingly refused and Iqbal appellant was informed that, on account of mistake, he had already overdrawn the money from his account by Rs,16,465 and that he should pay back this amount to adjust the account.
15. It is alleged that instead of doing the needful, the appellant started making representations to the Zonal Office of the Bank and even to the Martial Law Authorities leveling allegations of fraud against the Manager of the Bank (Zawar Hussain P.W.1).
16. The prosecution alleges that some enquiries were held in pursuance of these representations of Iqbal appellant but the allegations leveled by him were found to be incorrect. No inquiry report has, however, been placed on record in support of this claim.
17. It was finally on 8-3-1982 i,e, after a lapse of more than eight months that Zawar Hussain P.W.1 finally submitted an application (Exh.P.W.i/5) to the S.H.O. Of Police Station Ravi Road on which an F.I.R. Bearing No,80, dated 21-3-1982 was recorded at Police Station Ravi Road, with respect to the alleged commission of offence punishable under section 420/468/471, P.P.C. This F.I.R. Is Exh.P.W.7/4.
18. The prosecution thus claims that withdrawal of Rs,20,000 by the appellant knowing that he did not have that kind of an amount to his credit constituted offences pu ishable under sections 403 and 420, P.P.C.
19. The appellant, on the other hand, has been insisting eversince 3-6-1981 i,e, when he was refus d payment of Rs,3,500, that he had never received any payment of Rs,20,000 a alleged by the Bank.
20. His case is that on 2-6-1981, he required to draw Rs,200 from his account and requested the Manager of the Bank (P.W.1) to fill in the cheque for him for Rs,200. His claim is that the Manager obliged and got him a payment of Rs,200 where after he came away from the Bank.
21. He alleges that it was the Bank Manager (P.W.1) who had dishonestly written the amount of Rs,20,000 while filling in the cheque; had drawn the said amount by making a fraudulent entry to the same effect in his ledger; paid Rs,200 to the appellant and fraudulently pocketed the remaining amount of Rs,19,800.
22. In support of this appeal, the learned counsel for the appellant has made various submissions both, on legal and on factual planes.
23. He submits that although the case of the appellant is that he never received the alleged payment of Rs,20,000 yet, even if it he presumed, for the sake of arguments, that he had received this amount, the same gave rise only to an action under the civil law and no criminal offence was made out against the appellant.
24. We would like to deal with this aspect of the matter first and advert to the factual submissions only if any need arises for the same.
25. The process of maintenance of Bankers' Books and the precautions built into the system have been explained on record by P.W.2 in the following terms:- "Before a cheque is passed, it passes first into the hand of the ledger clerk, who looks first into the balance of the customer in the ledger and if there is sufficient balance to meet the amount of the cheque, he makes a posting of the debit entry in his ledger account. He makes an initial in token of his having made the posting of the said debit entry. If the cheque exceeds a sum of Rs,5,000 then another employee who must be the officer of the bank again checks up the entries of balance etc. In the ledger against the amount demanded in the cheque by the customer and makes his signature on the face of the cheque in token of his having approved the payment of the said sum on the basis of his checking which in the technical language of H.B.L. Is called supervision.
Thereafter, the cheque whether of a sum of Rs,5,000 or of a sum less or more than Rs,5,000 goes to another officer who compares his signatures on the cheque with the one available on a specimen signature card available in the bank and if he thinks that they agree he makes a long signature across the face of the cheque in token of his having passed the cheque as fit for payment. This process is called cancellation. It is correct to suggest that when the cheque is for more than Rs,15,000, it is supervised by two employees of the bank, both being the officers of the bank. This supervision done by the said two officers is quite apart from the normal checking by the posting clerk who initials such a cheque before supervision is undertaken by the said two officers. In the terminology of H.B.L. The person performing the duties of posting of cheques is called `Assistant'. If a sum of more than Rs,15,000 has to be withdrawn by a customer from saving bank account in H.B.L.
According to the rules of the H.B.L. Seven days notice in advance has to be given by the customer to the branch."
26. It is thus obvious and so it is admitted by the concerned Bank officials i,e, P.W.1, P.W.4 and P.W.5 that the alleged payment in question to the appellant was a result of 'inadvertence' and 'mistake' on their part.
27. And when the payment is admitted to have been caused through a mistake of the Bank, in the commission of which mistake, the appellant was obviously not a party, then the appellant cannot be held guilty of having dishonestly induced the Bank officials to part with the amount in question or to have induced the same through dishonest concealment of the true state of his account as the said account is being maintained and is in the custody of the Bank officials themselves.
28. The appellant cannot be punished for the mistake, the negligence or the malfeasance of the Bank officials.
29. Accordingly, we hold that even if the facts as alleged are presumed correct, they do not constitute an offence punishable under section 420 of the P.P.C.
30. Consequently, this appeal is accepted. The impugned judgment dated 31-10-1988 passed by the learned Special Court (Offences in Banks), Lahore, including the conviction and the punishments recorded against the appellant, is set aside.
31. The appellant is thus acquitted of the charge under section 420, P.P.C. Also. He shall be set at liberty forthwith, if not required to be detained in any other case.
32. And since we have accepted this appeal on the basis of this legal question, we do not consider it necessary to go into the submissions on the factual plane, made by either side.
33. We may, however, add that this judgment shall not, in any manner, stand in the way of the Bank, in seeking recovery of the alleged overpayment made to the appellant, after establishing its claim before a Court of competent jurisdiction.