' AKHTAR ALI G. KAZI, J.--- Appellant Abdul Majeed Soomro was tried by the Special Court (Offences in Banks), at Karachi, for offences under sections 408, 468, 471 and 477-A, P.P.C. And was convicted for offences under sections 408 and 468, P.P.C. And sentenced to undergo R.I. For five years, and to pay fine of Rs,10,00,000, or in default of payment of fine to undergo R.I. For six months, for offence under section 408, P.P.C. And for offence under section 468, P.P.C. To undergo R.I. For four years and to pay a fine of Rs,1,00,000 or in default of payment of fine to undergo R.I. For three months more.
The substantive sentences have been ordered to run concurrently, while sentences in default of payment of fine are to run consecutively. The trial Judge has however given him benefit of section 382-B, Cr.P.C. And further ordered that if fine is recovered, Rs,5,00,000 shall be deposited with the bank and as the account-holder has suffered loss on account of misconduct of its manager, therefore, the Bank shall give credit to the account holder Arbab Ali, for the amount of Rs,4,05,000 plus interest/profit as on fixed deposit for three years for the loss suffered by him.
2. The trial Court has further directed that as the appellant has also been convicted in Case No,23/90, for similar offence, and has been sentenced under section 408, P.P.C. To undergo R.I. For 5 years and to pay fine of Rs,1,00,000 or in default to suffer R.I. For 3 months more, and as the offences committed by the appellant could have been charged and tried jointly for the two offences as laid down under section 222(2), Cr.P.C., hence the substantive sentences awarded in this case and in Case No,23/90, shall run concurrently while the sentences in default of payment of fine shall run consecutively. The appellant has filed this appeal against this judgment of conviction of the trial Court, announced on 13-6-1991, in Case No,22/90.
3. The brief facts as alleged by the prosecution in the trial Court are that the appellant was working as Manager in the Nationa Bank of Pakistan, in Ranipur Branch from the year 1987. He was transferred from this branch in the month of March 1989 and Mr. Saifullah Memon took over the charge as the Manager of the Branch on 16-4-1989. On 21-5-1989, account-holder Arbab Ali made an application to Mr. Saifullah Memon to know his balance in his P.L.S. Account No,2509, in the bank.
He also produced his Pass Book before Mr. Saifullah Memon, according to which, his balance was Rs,3,00,225 at his credit on that date. Mr. Saifullah Memon after verifying from the ledger of the bank found that balance stood as Rs,225 in the account of Arbab Ali. It is the case of the prosecution that Arbab Ali had opened his account in the bank with initial deposit of Rs,4,28,000 on 23-9-1987. Mr. Saifullah Memon found out from the record of the bank that an amount of Rs,4,00,000 was drawn by loose cheque, which was purported to have been issued to account holder Arbab Ali, on the basis of an application which was also purported to have been made by account-holder, who thumb-marked it. However, Arbab All denied having made any such application or having drawn Rs,4,00,000 on that date through a loose cheque. He gave an application to Mr. Saifullah Memon for conducting enquiry. On 26-9-1987 the appellant was Manager of the Bank. There was no entry or withdrawal of Rs,4,00,000 in the Pass Book of the account-holder, issued to him by the bank. On further enquiry, it was found that Rs,25,000 were also drawn on the basis of another loose cheque on 11-10-1989. There was entry about the withdrawal of this amount in all the relevant books of the bank, but no entry was made in the pass book of the account-holder Arbab Ali. Both the cheques of Rs,4,00,000 and Rs,25,000 have been passed b; the appellant, as the passing officer of the bank.
The record of the bank further showed that an amount of Rs,5,000 was drawn by debit voucher, purported to have been thumb-marked by Arbab Ali from his account, which was however denied by the account-holder.
4. After examination of the pass book, issued by the bank to the accountholder, Mr. Saifullah found that there were several entries of deposit and withdrawals in the pass book, but there were no corresponding entries in the record of the bank. The following entries have been shown in the pass book (Exh.2-D).
(1) deposit of Rs,13,000 on 10-7-1988.
(2) deposit of Rs,13,000 on 4-10-1988.
(3) withdrawal of Rs,10,000 on 10-10-1988.
(4) withdrawal of Rs,26,000 on 12-10-1988.
(5) withdrawal of Rs,20,000 on 12-10-1988.
(6) withdrawal of Rs,1,00,000 on 10-7-1988.
5. The above deposits and withdrawals have been authenticated by the appellant himself, with his initials in the pass book, although there were no corresponding entries in the account books of the bank. The manager of the bank lodged a complaint with the Federal Investigation Agency, and the F.IA. After investigating of the case arrested the appellant and challaned him in the Court to stand trial.
6. A formal charge was framed against the appellant for offence under sections 408, 468 and 471, P.P.C. To which the appellant pleaded not guilty.
7. The prosecution has examined P.W.1 Saifullah Memon (Exh.2), P.W.2 Arbab Ali (Exh.3), P.W.3 Mureed Hussain (Exh.4), who was working as Assistant in the bank at that time, P.W.4 Ghulam Kader another Assistant in the bank (Exh.5), P.W.6 Abdul Rauf, Handwriting Expert (Exh.7), P.W.7 Salim Ashraf, Assistant Vice-President of the Zone (Exh.8), P.W.8 Nazir Hussain Head Cashier of the Bank (Exh.9) and P.W.5 Qalander Bux, Investigating Officer (Exh.6).
8. We have heard Mr. Usman Ghani Rashid for appellant, Mr. Abdul Ghaffar Siddiqui, for the Bank and Mr. Zubair Qureshi for the State. We have also gone through the entire record and proceedings and the judgment of the trial Court.
9. The case of the appellant is one of denial, and he has further contended that he had acted on the instructions of Arbab Ali the accountholder.
10. The most important witness, who has been examined, on behalf of the prosecution is P.W. Arbab Ali, who is the account-holder of Account No,2509. He has clearly stated in his evidence that he had deposited Rs,4,28,000 on 23-9-1987, and had produced counterfoil of the pay-in-slip for saving account as (Exh.3-A-I) on the record of the lower Court. He has also stated that he had deposited the amount by this pay-in-slip with the accused (appellant) himself. He has further stated that appellant himself had given him counterfoil, which has been produced as (Exh.3-A). He further stated that cheque purported to have been issued to him by the appellant was not drawn by him, nor does it bear his thumb-impression. He further stated that he had not at any time withdrawn the amount of Rs,4,00,000 from his account. He has categorically denied having made any application for getting loose cheque and has further stated that application (Exh.2-A) was never made by him.
He has further stated that the thumb-impression on the specimen signature card (Exh.2-L) and photo copy of opening form (Exh.2/L-1) bears his thumb-impression. He has also clearly stated that he had not drawn Rs,25,000 by any loose cheque (Exh.2-B) nor had made any application (Exh.2-E) for the issuance of loose cheque. He has also denied his R.T.I. On the application for issuance of loose cheque (Exh.2-F). He has also specifically denied to have drawn Rs,5,000 by any debit voucher.. He has clearly stated that (Exh.2-G) does not bear his thumb-impression. He had not even obtained any debit voucher nor he thumb-marked (Exh.2-G). He has further stated that, the cheque book was issued to him on 10-7-1988 and that had he needed the money to be withdrawn in February, 1988 he would have utilised the cheque from the cheque book and would not have drawn any amount through debit voucher. He further stated that the documents have been forged and the amount has been misappropriated.
11. P.W. Mureed Hussain, who was working as Assistant in the bank at the relevant time, has clearly stated in his evidence that (Exh.2-B) for Rs,4,00,000 and (Exh.2/F) for Rs,25,000 have been passed by the appellant himself, and that the thumb-impressions have been verified by one Nazir Hussain, Head Cashier of the Bank.
12. All these documents, alongwith the thumb-impression of Arbab Ali, account-holder were sent to the Finger Print Bureau. Mr. Abdul Rauf has been examined in this case as P.W.6 (Exh.7). He has clearly stated that the thumb-impressions on all these documents are different, than what were on the original Specimen Signature Card and other documents of the bank. He has further stated that the specimen thumb-impression taken during investigation also do not tally with the thumb- impression purported to have been marked on cheques and other documents of the bank. This clearly supports the contention of P.W. Arbab Ali that the thumb-impressions on loose cheque and other documents, have not been put by him. Apart from this it is clear from the evidence on record and even admitted by the appellant himself that the cheque (Exh.2-B) has been written in his hand and he had written the same on behalf of Arbab. It has also come on record that Arbab Ali is an illiterate person.
13. So far as, withdrawal of Rs,5,000 by debit voucher is concerned, the witness has denied having withdrawn this amount on the basis of debit voucher. The evidence of expert Abdul Rauf also supports his contention. The accountholder had obtained cheque book from the bank on 10-7- 1988, and as such there was no need for him to draw the amount on the basis of debit voucher on 16-2-1989. It is also admitted by the appellant that the debit voucher (Exh.2-G) was prepared by him in his handwriting at the instance of Arbab Ali. Thumb-impression of Arbab Ali has not been attested by an officer of the bank as is required under the rules. The most important circumstance against the appellant in this case is that P.W. Arbab Ali being an illiterate person was dealing directing with the appellant. It is the case of the prosecution that an amount of Rs,4,28,000 was paid by the account-holder directly to the appellant and that the pay-in-slip was also issued to him by the appellant himself.
14. P.W. Saifullah (Exh.2) has also clearly stated that the appellant was working as Manager of the Bank at the time, when the cheque (Exh.2-B) was encashed. This withdrawal has been shown in the ledger of the account and the cash scroll, as well as pay book but no such entry has been made in the pass book, issued to the account-holder, which according to the evidence of this witness was also initialled by the appellant himself. He has further deposed that amount of Rs,25,000 has been drawn on the basis of loose cheque on 11-10-1987 (Exh.2-F). This cheque was also passed by the appellant himself. Thus entry of this cheque is also made in the record of the bank, but no such entry was made in the pass book of the account-holder (Exh.2-D). Again on 16-2-1989, according to this witness an amount of Rs,5,000 was drawn from the amount of Arbab Ali, on the basis of debit voucher. The same has been passed by the appellant without attestation of thumb- impression by any officer of the hank. The entry of this withdrawal is also in all the books, but not in the pass book of the account-holder.
15. The pass book issued to the account-holder mentions various entries, which have been initialled by the appellant, as stated by Mr. Saifullah Memon Manager, who was conversant and acquainted with the handwriting and signature of the appellant, as they had worked together in the Bank. In this pass book no entry has been made regarding withdrawal of Rs,4,00,000, Rs,25,000 and Rs,5,000.
16. It may be mentioned that some entries regarding withdrawal of amount have been shown in the pass book, but not have been entered in the bank registers and books of account. Some cheques including for Rs,1,00,000 appeared to have been issued by the account-holder, have been entered by appellant in the pass book, but no such entry has been made in the ledger. As per the books of the bank amount of Rs,1 lac was not in balance in the account of account-holder on that date. This was done by the appellant possibily with a view, that had the payment not been made by the appellant and had the cheque not been honoured the crime would have been brought to light much earlier. The fact that the entries in the pass book wefe different than those in the bank record, and that the pass book entries had been initialled by appellant himself, clearly lead to support the contention that these documents have been forged.
17. P.W. Ghulam Qadir, who was working in the branch, as Assistant at the relevant time, has stated in his evidence that Abdul Majeed appellant had asked him to write an application for issuance of loose cheque in Account No,PLS-2509 of Arbab Ali. He had written the application (Exh.2-E) on the instruction of the appellant. He has further stated that he had sent this application to the appellant who sent him a loose cheque. He has further stated that the appellant himself obtained the thumb-impression on the application and on the loose cheque. He has also stated that all the loose cheques were in custody of the appellant as usually the manager is incharge of the loose cheques and he issues the same to various account-holders. He has further stated that he had prepared loose cheque (Exh.2-E) for Rs,25,000 and sent it back to the manager as per his directions.
18. The prosecution witness No,8 Nazir Hussain who was Head Cashier, at the relevant time, in the bank, has however, stated that he had attested the thumb-impression of the account-holder Arbab Ali, on the application for loose cheque (Exh.2-A). He further stated that he had also authenticated the thumb-impression of account-holder on the second application for loose cheque (Exh.2-E). This witness has further stated that on the above disputed cheques for Rs,4,00,000 and Rs,25,000 there are thumb-impressions of the recipient of the cheque on the reverse and those thumb-impressions have not been attested by any one. With regard to the thumb-impression on the application for loose cheque it may be mentioned that P.W. Abdul Rauf, who has been examined as an expert has clearly stated that these thumb-impressions are not of account-holder Arbab Ali. The account-holder has also denied having thumb-marked these applications, and his evidence on this point has gone unchallenged. It appears that this witness has made an effort to help the appellant by giving such statement in the Court. He may have even acted as an accomplice of the appellant in the commission of this crime, but that does not help the appellant to absolve him from his criminal liability.
19. The learned trial Court on the basis of the evidence produced before him during trial came to the conclusion that the cheque for Rs,4,00,000 has been forged. He has also concluded that the application (Exh.2-A) for issuance of loose cheque purported to have been made by Arbab Ali is also forged. He has also come to a finding that the debit voucher (Exh.2-G) has also been forged and the thumb-impressions on these documents are not of accountholder Arbab Ali, in view of positive evidence on record given by the prosecution witness Abdul Rauf and other circumstances.
However, he has come to a finding that so far as the cheque (Exh.2-F) for Rs,25,000 is concerned, it has not been proved as the same was not sent to the Handwriting Expert for comparing the thumb-impression of Arbab Ali. According to him the case against the appellant was established for committing forgery and for misappropriating the amount mentioned in these documents.
20. We have also considered the entire evidence led by the prosecution in the trial Court, and we have come to the conclusion that the evidence of the prosecution witnesses has practically gone unchallenged and nothing has come on record in the cross-examination of the witnesses to show that they had any reason to falsely involve the present appellant in this case. It is admitted position that all the cheques for Rs,4,00,000, Rs,25,000 and debit vouchers have been passed by the appellant himself without performing formalities under the rules, regarding encashment of the cheques and debit voucher. It is also admitted position that the cheque for Rs,4,00,000 and debit voucher for withdrawal of Rs,5,000 are in the handwriting of the appellant himself. Sufficient evidence has come on the record to show that the pass book issued to account-holder Arbab Ali has been authenticated by the appellant with his initials. It has also come on record that the entries in the pass book do not tally with the entries in the ledger book and other books of account of the bank. An amount of Rs,4,00,000 has been shown to have been withdrawn in the account of the bank, whereas Rs,4 have been shown in the pass book to have been withdrawn on that day.
This entry has also been initialled by the appellant himself. Similarly an amount of Rs,1,00,000 has been shown to have been withdrawn from the account of account-holder in the pass book whereas no such entry has been made in the record of the bank, nor any such balance stood in the account of the account-holder to his credit in the account books of the bank. Besides there are some other entries which have been initialled by the appellant in the pass book, but there exist no relevant entries in the books of accounts maintained by the bank. The entries in the pass book are supposed to be made on the basis of the entries in the books of accounts, such as ledger, account books and other relevant books maintained by the bank. All these forgeries have been made by the present appellant and the documents have been forged to misappropriate the amount of the account-holder.
21. In view of the above facts and evidence, which has come on record and the documents produced by the prosecution in the trial Court, we have come to the conclusion that nothing has come on record to create any doubt about the evidence of prosecution and we feel that the prosecution has proved their case against the appellant beyond any reasonable possibility of doubt and under such circumstances we are not inclined to disturb the finding of the trial Court, which is based on sound reasons. However, as the appellant is likely to lose the job on his conviction, and will be disqualified for future employment, we therefore, reduce his sentences of R.I.
For 5 years for offence under section 408, P.P.C. And 4 years for an offence under section 468, P.P.C.
To that already undergone by him. The sentence of fine of Rs,10,00,000 under section 408, P.P.C. And Rs,10,000 under section 468, P.P.C. And in default of payment of fine, R.I. For six months and three months shall remain unaltered and the sentences in default of payment of fine shall run consecutively. The bank shall give credit of Rs,4,05,000 to the account-holder Arbab Ali plus interest/profit as on fixed deposit till the time, the payment is made to the account-holder for the loss suffered by him, due to misconduct of its official. With this modification in sentence the appeal is dismissed.
Sentence reduced.