Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Acquittal Appeal No. 294 of 1961, decided on 18th May 1964.
S. 409‑Criminal breach of trust‑Prosecution not required necessarily to prove actual manner of misappropriation as well.
For sustaining a charge of criminal breach of trust it is not necessary that misappropriation in fact must be proved. If in the circumstances of the case or by long lapse of time, the prosecution is not able to trace the misappropriated property or to produce evidence of the manner in which the misappropriation or conversion in fact took place, .it cannot be said that the prosecution must fail even if there is other evidence which leads to the conclusion that the property which was entrusted to the accused or over which he had domain and which was found missing, was misappropriated by him.
State v. Abu Raza P L D 1959 S C (Pak.) 309 rel.
Harakrishna Mahatab v. Emperor 31 Cr. L J 249 distinguished.
Ss. 409, 466 & 477‑A‑Charge under Ss. 466 & 477‑A‑Sustainable even if accused be found not guilty of criminal breach of trust.
M. Haleem, Assistant A.‑G. for the State.
Azizullah K. Shaikh for Respondent.
Dates of hearing: 1st, 5th and 6th May 1964.
This is an acquittal appeal by the State. The accused Tahir Beg was tried by the Special Judge, Sukkur Mr. Azizullah M. Memon for offences under sections 409, 466, 468 and 477‑A, P. P. C., and was acquitted by him by his judgment dated 31st January 1961 in Corruption Case No. 37 of 1960. The State filed an appeal against this acquittal and this was heard and disposed of by a Division Bench of this Court by their order dated 11‑4‑62. Their Lordships while holding in the concluding para of the judgment that the learned Special Judge had paid no proper attention to the evidence on record ordered the retrial of the case and directed the Special Judge to consider the evidence against the accused on its merits. Against this order the accused preferred an appeal to the Supreme Court which appeal was accepted. The order of retrial was set aside and this appeal was sent back to his Court for disposal according to law. This judgment was delivered in Criminal Appeal No. K‑2/62 on 8th April 1963. That is how this appeal has now come before us. The accusation against the accused is contained in the Roobkari Exh. 1, which was read out to him by the Special Judge at the commencement of the trial. This reads as follows:‑
"That you Tahir Baig, son of Siddiq Baig were during the year 1954‑55 a public servant namely Assistant Superintendent in Charge of Factory Central Prison, Sukkur.
(2) That in your capacity as Assistant Superintendent in charge of the Factory you had dominion over yarn which was Government property.
(3) That on or about 18‑10‑1954 you made a false entry in Register No. 28 showing that 10,000 lbs. of yarn was issued and sent to Central Prison, Hyderabad whereas no such yarn was actually issued nor was any requisition made from Hyderabad to the issue of this yarn.
(4) That again on or about 26‑7‑54 yarn weighing 1,200 lbs. was sent to Hyderabad but you made false entries in the relevant books of accounts altering the figure of 1,200 lbs. into 4,200 lbs. with the dishonest intention of causing it to be believed. that actually 4,200 lbs. of yarn was issued.
(5) That being entrusted with yarn of the total value of Rs. 26,508 you dishonestly misappropriated the same.
(6) That you made false entries in the relevant books of accounts namely registers Nos. 23 and 28 causing it to be believed that during 1954 yarn weighing 4,200 lbs. were issued to Central Prison, Hyderabad whereas in fact only 1,200 lbs. was issued.
(7) That you have committed offences under sections 409, 466, 468 and 477‑A, P. P. C. and you are called upon to show cause why you should not be convicted."
2. The accused pleaded not guilty and was accordingly tried upon the said accusation.
3. The accused had taken over charge as Assistant Superinten dent Central Prison, Sukkur in December 1955 and was throughout in charge of the factory inside the prison which manufactured commodities such as cotton carpets, etc. until October 1955 when he was transferred from the Central Prison, Sukkur. Being in charge of the factory he was entrusted with cotton yarn which was received in the prison and was responsible for maintaining the accounts thereof.
4. It is the case of the prosecution that the accused misappropriated 13,000 lbs. of yarn and with the intent to defraud the Government fabricated false entries in the registers maintained by him. One such false entry is Exh. 3‑D In the register No. 28 maintained by the accused. This entry relates to October 1955 and purports to make out that 10,000 lbs. of yarn had been issued and despatched to Hyderabad Central Prison. With regard to the misappropriation of the remaining 3,000 lbs. it is the case of the prosecution that the accused altered an entry dated 26‑7‑54 in the register No. 23 from 1,200 into 4,200 by turning the digit 1' into digit 4'. 1,200 lbs. of yarn were properly issued to the Central Prison, Hyderabad but the addition of 3,000 lbs. to this entry by altering it into 4,200 lbs. was alleged to have been done to defraud the Government in respect of 3,000 lbs. of yarn. This register No. 23 is also maintained by the accused. A corresponding entry was made in November 1954 in respect of these 4,200 lbs. in the register No. 28. The entry is marked Exh. 4‑A.
5. This alleged defalcation was not discovered until the year 1957 when an audit party from the Controller's Office came to the Central Jail, Sukkur to audit the accounts for the year 1954. With regard to the alleged issue of 10,000 lbs. to Hyderabad Central Prison; which is the one which was discovered in the first instance by the audit party, the accused was called upon by the Superintendent, Central Prison, Sukkur to render an explanation. This, the accused did in writing on 28‑11‑57. This is marked Exh. 3‑B. In this explanation the accused said that this entry on page 27 of register No. 28 dated 28‑10‑54 as regards 10,000 lbs. of yarn was erroneously marked as H. C. P. (Hyderabad Central Prison) instead of S. C. P. (Sukkur Central Prison). The idea was to show that this 10,000 lbs. had been expended in the Central Prison Sukkur's factory itself and had not been issued to H. C. P. The accused went on to add that while correcting the accounts on physical verification he had gathered the information that since the time of his taking over charge of the factory of the prison in December 1950 ropes for the jail used for garden animals and for the Khichis', etc. of about 150 looms had been issued but had not been struck off (from the stock register No. 28) and accounted for properly at the correct times during the last four years. The accused then went on to give the reasons why he had committed this default and it was said that he was very heavily worked and did not have any assistance with regard to the work of the factory. He then went on to explain how these 10,000 tbs. of yarn had been expended. It would be convenient to reproduce this part of the explanation:
lbs.
"(a) Cotton ropes for garden animals (about
15 to 20) at 100 lbs. per month for four years 4,800
(b) Cotton ropes for about 150 looms Khichis',
etc. and duryy looms i.e., for tighting up the
Addas in casual and habitual factories @ 200 lbs.
per month for 4 years ... ... 9,600
Approximate total expenditure of yarn in this
connection ... ... ... 14,400
Leaving a margin of excess of about 4,400 tbs. it was struck off as only 10,000 lbs. on this account and was a jail to jail transaction of Sukkur Central Prison and not H.C.P. as written by an oversight. I admit that this ought to have been done in every month in the account of jail on monthly consumption which could not be done and transacted regularly due to the facts stated by me in (1) of my explanation."
The Superintendent of the Prison Mr. L. G. Cardeiro, who later on figured as prosecution witness No. 1, having received this explanation of the accused dated 28‑11‑57 sent a confidential report to the D. I: G. Prisons on 11‑12‑57, Exh. 3‑A, and said that the accused had admitted having made the entry and that his explanation was not acceptable and it appeared to be a clear case of fraud. The D. I. G. then ordered another party headed by one Mr. A. K. Sheikh to checkup the accounts. This was done and a report was made to the D. I. G. on 16‑1‑58, Exh. 3‑E. It was stated in this report that all receipts of yarn from 1951 to 1955 was checked and found to have been properly taken on register No. 28. With regard to the explanation of the accused about the alleged expenditure of 10,000 lbs. in ropes, etc. for the jail it was pointed out with reference to register No. 27 (work register) that this was not correct. It was added that whenever even a few ounces of yarn were used for ropes it was entered in the books and if this yarn had been used as well there was no reason why it should not have been so shown in register No. 27. It was for that reason stated that the explanation of the accused was not acceptable.
6. This party found another fraudulent entry. While verifying register No. 23 (sales journal) it was discovered at page 77 that the entry with regard to 4,200 lbs of yarn as having been sent to the Central Prison, Hyderabad was a fabrication and .what had actually been sent to H. C. P. was 1,200 tbs. of yarn. This had been verified from the Superintendent, Hyderabad Central Prison.
7. A further explanation was submitted by the accused to the Superintendent, Central Prison, Sukkur on 13‑11‑58. This is Exh. 3‑G. This, he said, was in continuation of his explanation dated 28‑11‑57. In this he said that he had attended the office of the Sukkur Prison from 6‑1‑58 to 9‑1‑58 as ordered by the D. I. G. of Prisons and having gone into the matter and having properly recollected the fact, had found that against the " so‑called shortage of 10,000 lbs." there was a total consumption which worked out to 20,400 tbs. of this he gave the particulars as follows:‑
(1) A riot had taken place in April and May 1951 in Sukkur Central Prison. 50 looms were broken and all the cloth and yarn of different kinds on looms and shed in Habitual Factory was totally burnt by the rioters (prisoners) in the day (sic) of Mr. G. A. Isani, the then Superintendent of Sukkur Central Prison; witnessed by the S. P. A. Police officers and the then Superintendent of Police of Sukkur, present at that scene. Total amount of loss thus sustained is estimated to be . . . . . . 3,000 lbs.
lbs.
(2) Loss of wastage not charged from December 1950 to December 1952 on the total
expenditure of 38, 184 @ 5% ... ... 1,909
(3) Ropes manufactured for different camps for 4 years 1950 to 1954 which were
supplied not shown as manufactured ... ... ... ... 1,901
Total 6,000
Total B/F 6,000
Plus the account shown in my statement of 28‑11‑57
page (2) para. 3 (a) and (b) ... 14,400
Grand Total .. 20,400
Mr. Cardeiro in his further report dated 2nd February 1958 dealt with the explanation of the accused in detail. With regard to the statement reproduced above which was filed with the second explanation of the accused relating to the alleged destruction of 3,000 tbs. of yarn during the riot, 1909 lbs. of alleged loss of wastage and 1,091 lbs. on account of ropes for different camps, Mr. Cardeiro effectively demonstrated that nothing of all this was true. His report is dated 2nd February 1958 and is marked Exh. 3‑H. In another report, Exh. 3‑I, he dealt with the alteration of the entry of 1,200 lbs. into 4,200 lbs.
8. The matter was then handed over to the Anti‑Corruption Police and a final report was made on 15‑3‑58, Exh. 7‑B, by the Anti‑Corruption Inspector Syed Fayyaz Hussain, P. W. 5, and thereafter a sanction for prosecution having been obtained a challan was put up in the Court of the Special Judge.
9. At the trial the evidence against the accused consisted mainly of the documentary evidence. The oral evidence of the Superintendent Central Prison, Sukkur, P. W. 1, Mr. E. G. Cardeiro was in respect of the discovery of the two false entries in respect of 10,000 and 3,000 lbs. of yarn and the explanation of the accused thereof in the manner narrated above. He proved the entries, Exh. 3‑C and Exh. 3‑D, in the registers Nos. 23 and 28. He also proved the reports, Exh. 3‑E, 3‑F, 3‑G, 3‑H and 3‑I referred to above. The next witness Ali Ahmad, P. W. 2, Deputy Superintendent, District Jail stated that the entries in Exhs. 3‑C and 3‑D and Exh. 4‑A were in the handwriting of the accused. The third witness Mustafa Hussain, a clerk of the Central Prison, Sukkur, stated that the accused was in charge of the factory and was maintaining the factory registers. In the sale register (No. 23) he said that all the entries were made by the accused except the ledger entries which were made by him. With regard to the entries Exhs. 3‑C and 3‑D he stated that these were in the hand of the accused. The remaining two witnesses were the Anti‑Corruption Inspectors who had investigated the case. These are Muhammad Hanif, P. W. 4, and Fayyaz Hussain, P. W. 5. There is nothing in their evidence which needs mention.
10. When the accused was examined in Court under section 342, Cr. P. C. he was asked whether he had made the entry in register No. 28 on or about 18‑10‑54 showing that 10,000 lbs. of yarn had been issued and sent to Hyderabad Central Prison, whereas in fact no such yarn had actually been sent, he first answered:
" No sir, I have not made this false entry." He was then shown the entry, Exh. 3‑D, from the register and again asked the same question, to which he answered:
"I cannot remember as long time has passed." His attention was then drawn to his explanation, Exh. 3‑B, wherein he had admitted having made this entry and to that he replied that he had submitted this explanation and it was correct. He added that he had handed over the charge in July 1955 and when he was called upon to explain in 1957 he found on going through the accounts that the entry H. C. P.' was a mistake for S. C. P. and therefore he had given this reply. To a further question with reference to his explanation, 3‑B, he eventually stated that this entry might have been made by him. When asked as to what was his explanation with regard to this entry he said:
"It may be due to the fact that I noticed shortage for which my predecessors were responsible and I have covered up their fault."
When asked as to why he had not reported the matter to the authorities he said that this was due to his inexperience. He was next shown the entry, Exh. 3‑C in the register No. 23 which showed that 4,200 lbs. of yarn had been sent to Central Prison. Hyderabad on 26‑7‑54, whereas in fact only 1,200 lbs. had been sent. He was asked as to what he had to say to this and he answered that he had only sent 1,200 lbs. and that he had not converted the figure 1' into 4 and that it appeared that somebody else had done it after he had handed over. He was then shown the entry, Exh. 4‑A in the register Exh. 28 and he said that this was not in his hand and that it was made by somebody else. He was then asked if he could explain the absence of the entry relating to 1,200 lbs. of yarn in the ledger (register No. 28) and to that he only said that all the entries in the ledger had not been made by him. With regard to the evidence of P. W. 2 Ali Ahmad Sarhindi he said that he had some disputes with him and he produced an order; Exh. 8‑A, by which the confirmation of this accused had been cancelled upon an appeal from Ali Ahmad Sarhindi with regard to the evidence of Cardeiro he said that he had no personal knowledge and he had based his opinion on his conjectures. When he was asked if he had anything else to say he merely produced certain documents which are Exhs. 8‑B and 8‑C to 8‑I. He led no evidence in defence.
11. The learned Special Judge dealt with the question of misappropriation in paras. 7 to 11 of his judgment. He observed that the most important fact in the whole case was whether the prosecution had been able to prove that 13,000 lbs. of yarn had been misappropriated. He then observed that the burning question which had continued to occupy his thought was as to how this huge quantity of 13,000 lbs. of yarn could be smuggled out of the jail premises. He referred to the evidence of Mr. Cardeiro and to the final report, Exh. 7‑B, which had been filed by the Inspector Anti‑Corruption and observed that they had themselves not found the proof of the actual removal of the yarn from the jail. He then went on to observe that though the accused was the head of the factory he had got some clerks working under him and though the accused was supposed to be on duty from the opening of the jail till it was closed yet the keys according to the rules were to be kept at the gate. He, however, noted the statement of Mr. Cardeiro to the effect that in practice the keys are retained by the factory incharge during the day time and at night they are kept in the key box at the gate. The learned Judge, therefore, observed that at night the factory could have been opened by the gate‑keepers and therefore it could not be said that the accused alone had the dominion over the factory. He, however, stressed the point that to him it was inconceivable that this huge quantity of yarn could have been smuggled out from the jail by the accused even if he had taken the other employees into confidence. Later on, though he noted that the entries with regard to the two items of misappropriation had been found to be false but the question would arise as to how to account for such a shortage. He then observed that the accounts of the factory "appeared to be in complete mess". He noted that Mr. Cardeiro had admitted that there was a riot in July 1951 and though the evidence of Mr. Cardeiro did not support the burning of any yarn the learned Judge went on to conclude:
I have carefully gone through the documents produced in this case and I feel that good quantity of yarn also was reduced to ashes without being detected or properly accounted for. This is not a case where a property entrusted to the accused was such that it could have been smuggled without having been detected. In view of the fact that there is not the least suggestion as to how this huge quantity of yarn could have been misappropriated by any body, it would be more safe to say that this quantity of yarn had either been burnt away or the wastage allowed by the rule is in fact less than the actual one. It is the duty of the prosecution to prove beyond all reasonable doubt that this huge quantity of yarn was in fact misappropriated. The burden of proof lies upon them and it has not been discharged to the satisfaction of the Court."
The learned Judge on these conclusions went on to hold that the first and the most important charge of misappropriation thus stood not proved. With regard to the other offences of sections 466, 468 and 477‑A, P. P. C. he appeared to have accepted the contention of the defence counsel that if the prosecution had failed to prove the misappropriation charge against the accused the other charges could not stand for the reason that the prosecution had failed to prove the dishonest intention of the accused. He accordingly acquitted the accused of all the charges.
12. Admittedly the accused was in charge of the prison factory in Sukkur from December 1950 till October 1955 except for a very short interval during 1951. Being in charge of the factory it was he who received the cotton yarn which was received into the Sukkur prison from time to time. Whenever such yarn was received it was entered in the book namely register No. 28. When any part of this yarn was either sold or despatched to any other prison or to Government an entry to that effect was made in register No. 23 called the sales registers. When any such transaction takes place an entry to that effect is made in the sales journal and a corresponding entry is made in the stock register No. 28 striking out that much of cotton yarn which may have been transferred in any of the three manners stated above. There are two parts of this stock register. In one part is recorded the coming in of yarn and in the other part is recorded any going out of the yarn. In the third register, namely No. 27 register which is also described as the work order register, every item of issue of yarn to the Sukkur prison factory itself for the purpose of production is entered. When any yarn is so issued and an entry is made in this register a corresponding entry would be made in the stock register striking out the quantity of yarn issued to the factory itself. In this way the balance is maintained in register No. 28 between the expenditure of yarn and the receipt of yarn. All these three books were maintained by the accused. The accused was in the charge of the factory. He was also in charge of receiving the yarn which came into the Sukkur prison factory and of disposing it of and maintaining accounts thereof. According to the evidence of the Superintendent Mr. Cardeiro, in practice the keys were retained by the factory in charge during the day time and it was kept in the key box at the gate during the night. We have no reason to disbelieve this statement. The learned Special Judge observed that as the keys would be with the gate‑keepers during the night the factory could have been opened by them and, therefore, it could not be said that the accused alone had the dominion over the factory in question. We do not agree. In the first place, the keys would be in the key box according to the evidence of Mr. Cardeiro and there is nothing on record to show that the key box was broken open at any time during this period. But apart from this, merely because the gate‑keepers had the opportunity of breaking into the factory and removing the yarn does not negative the fact that it was the accused who was entrusted with and had the dominion over this property. Any misappropriation of the yarn such as in the circumstances of the present case, could not be possible without the accused being in it, because it was he who was maintaining the registers and the shortage would have to be accounted for in the registers. Admittedly, an attempt was made to explain the shortage of 10,000 lbs. by the accused by making the entry, Exh. 3‑D, in the register No. 28 showing that this yarn had been sent to Hyderabad Central Prison, it cannot, in our opinion, be disputed that the accused had the dominion over the cotton yarn which came into the Sukkur prison during the time he was in office in that prison.
13. The next question is whether the accused misappro priated 13,000 lbs. of yarn or any part thereof. It is true, there is no direct evidence of physical appropriation of this yarn or its conversion. But the absence of such direct evidence does not necessarily absolve the accused. It often happens that misappropriated property is not found or traced, but if the fact of misappropriation is otherwise satisfactorily established an accused would still be liable for breach of trust if he had been entrusted with or had the dominion over that property. In the present case, it is not disputed that having regard to the quantity of yarn received in the Sukkur prison and the expenditure thereof which was duly accounted for, there was the shortage of 13,000 lbs. According to the prosecution, the accused attempted to conceal the misappropriation by making two fraudulent entries with regard to 10,000 lbs. and 3,000 lbs. With regard to the entry of 10,000 lbs., the accused in his examination in Court had, in the first instance, flatly denied having made, that entry. It was only when his attention was pointedly drawn to his admission in his first explanation which he had rendered to the Department that he very half heartedly admitted it. Before us, Mr. Azizullah Sheikh, the learned Advocate appearing for the accused, did not dispute that this entry was made by the accused. He admitted that this entry was made by the accused but he denied that the interpolation of the entry of 1,200 lbs. into 4,200 lbs. was done by him. In respect of this entry the accused had given no explanation to the Department. We will, therefore, examine the question whether this entry was also made by the accused.
14. According to the evidence of the clerk Mustafa Hussain P. W. 2, and Ali Ahmad, Deputy Superintendent of jail, this entry Exh. 3‑C was made by the accused. Except the ledger entries in register No. 23 where this entry Exh. 3‑C, appears, the rest of the entries are made by the accused. Mr. Azizullah admitted that the original entry of the issue of 1,200 lbs. was made by the accused. What he disputes is that the figure 1' was not altered into 4' by his client. The accused himself stated in his examination that he had only sent 1,200 lbs. but he had not converted the figure 1' into 4' and that somebody else appeared to have done it after he had handed over. It is important to remember this entry was dated 26‑7‑54 and the quantity of 1,200 lbs. of yarn having been issued out from the stock to the Central Prison. Hyderabad would have to be struck out in the stock register No. 28. This would have to be done by the accused, but the entry which appears in the stock register is of 4,200 lbs. and not of 1,200 lbs. This entry in the stock register is Exh. 4‑A. The accused was asked in his examination if he could show any entry of 1,200 lbs. in the ledger book (stock register) corresponding to the entry Exh. 3‑C and the only answer that he could give was that all the entries made in the ledger book had not been made by him. P. W. 2. Ali Muhammad stated that the entry, Exh. 4‑A, was in the handwriting of the accused. He was not cross‑examined on that point. Besides there is the additional circumstance that it was the accused who was interested in explaining the shortage of the cotton yarn. The entry, Exh. 3‑C, in the sales register is dated 26‑7‑54. This quantity would have to be entered in the stock register. This was done on 24th November 1954. The accused did not hand over charge until October 1955. On his own showing he made one entry of 10,000 lbs. to cover up the shortage as he puts it. Obviously, therefore, it would be the accused who would be interested in explaining further shortage before he handed over the charge so that at the time of the handing over the entries in the stock register and the sales register tallied. Moreover, this entry, Exh. 4‑A, does appear to be in the hand of the accused. We are, therefore, satisfied that the alteration in the entry of 1,200 lbs. in Exh. 3‑C as well as the whole entry in the stock register, Exh. 4‑A is in the hand of the accused.
15. There is thus the undisputed shortage of 13,000 lbs of yarn. There are also two false entries made in the registers by the accused attempting to show that this quantity of cotton yarn had been despatched to the Central Prison, Hyderabad. The question which then falls for consideration is whether the explanation given by the accused of this shortage can be accepted as true or even plausible and further whether there are circumstances, apart from the explanation, which suggest that the explanation may reasonably be true. There is no doubt that the prosecution has to prove not only entrustment of dominion over property but also that the accused either dishonestly misappropriated the property or converted it to his own use or disposed it of himself or willfully offered some other person to do so. However, it is not the duty of the prosecution to prove by direct evidence the fact of actual misappropriation, conversion, disposal or use. In the present in case, the accused has given two explanations to the Department and yet another in Court. We will now proceed to examine them.
16. In his first explanation dated 28‑11‑57, to the Superin tendent Central Prison, Sukkur, Exh. 3‑B, the accused explaining the entry of 10,000 lbs. in Exh. 3‑D had said that while correcting the account and on physical verification he had found the difference between the stock and the books and he was informed and had reached the conclusion that since the time of his taking over charge of the factory, that is, December 1950, ropes for the jail use, for garden animals and for khitchis', etc. of about 150 looms were issued and manufactured but could not be struck off and accounted for properly at correct time during the last four years and they were not even properly shown as manufactured nor were the transactions correctly recorded in the various relevant registers. He then gave the figure of 4,800 lbs. for cotton ropes for garden animals and 9,600 lbs. for ropes for about 150 looms and Khitchis', etc. making a total of 14,400 lbs. Thus according to him, there was an excess of 4,400 lbs. after accounting for the entry of 10,000 lbs. About two months thereafter the accused submitted another explanation after he had attended the office of the Sukkur prison for four days from 6‑1‑58 to 9‑1‑58 under the orders of the D. I. G. In this he added three more items of expenditure, namely (1) 3,000 lbs. of yarn were burnt during the riot, (2) 1,909 lbs. on account of wastage not charged from December 1950 to December 1952, (3) 1,091 lbs. on account of ropes manufactured for different camps for four years (1950 to 1954) which were not shown in the manufacture register. The total came to 6,000 lbs. and this on being added to the 14,400 lbs. of the first explanation brought the grand total to 20,400 lbs. This explanation was so unreasonable on the face of it that it was not adhered to even by the accused at the trial. In the cross‑examination of the two important witnesses from the jail namely Mr. E. G. Cardeiro and Ali Ahmed Sarhindi not one question was asked about the alleged expenditure of the ropes and Khitchis'. These explanations had already been effectively dealt with in the report of Mr. Cardeiro and Mr. Shaikh which has been referred to in the earlier part of the judgment. It was said therein that if the ropes had been manufactured or any expenditure of yarn on this account was made in the factory it would have found place in the work register. That register contained a large number of entries with regard to the issue of yarn for the purposes of the manufacture of ropes. There were entries even of a few ounces of yarn when it was so received in the factory for the purposes of manufacture. We have, therefore, no hesitation in rejecting the explanation of the accused in this regard. In fact, as we have already pointed out, he himself did not adhere to it. Then as regards the alleged destruction of 3,000 lbs. of yarn in the fire during the riot in the jail even in the report dated 21‑4‑51 in respect of this riot, a copy of which was produced by the accused along with the statement and which is marked Exh. 8‑E it is clearly stated "the damage to property was confined to the breakage of the looms in the habitual weaving factory and the damage of the cloth thereon". There is no mention of destruction of any yarn, and Mr. Cardeiro when asked about it in cross examination clearly stated that in that riot some cloth was burnt but not yarn. The fact that the loss of this cloth was not written is of no consequence, because if yarn had been issued for cloth it would find place in the work register and thus there would have been no shortage of yarn in the stock register. As regards the allegation in the explanation that 1,909 lbs. of yarn had been omitted from the account because wastage in the process of manufacture was not shown Mr. Cardeiro stated that 3 % wastage was allowed. But this waste, which evidently arises in the process of manufacture of articles from yarn, was disposed of by auction. However the important point to note is that the wastage would take place after the yarn is issued to the factory and once it is issued and received in the factory it would be entered in the work register and a corresponding deduction would be made in the stock register. There would, therefore, be no shortage in the books. Likewise, the explanation that 1,091 lbs. were expended for ropes for different camps is equally unacceptable for the same reasons as given above. There is thus no plausibility in the two explanations given by the accused to the Department. The accused evidently realised this because when he was asked by the Special Judge if he could give any explanation why he had made the entry of 10,000 lbs. afterwards, he replied that "it may be due to the fact that I noticed shortage. My predecessors were responsible and I had to cover up their faults". There is no material on record upon which this explanation, namely of covering up the fault of the predecessors could, in the least, be substantiated.
17. The learned Special Judge himself again and again observed that it was not possible for him to comprehend how such a large quantity of cotton yarn was taken out of the jail and not finding an answer to this question to his satisfaction and not being able to accept the explanation rendered by the accused with regard to the making of ropes and Khitchis', he eventually reached the conclusion which may be reproduced in his own words:
"I have carefully gone through the documents produced in this case and I feel that good quantity of yarn was reduced to ashes without being detected or properly accounted for."
This finding is clearly erroneous. Even the accused had limited the alleged loss of the yarn in his second explanation to 3,000 lbs only. Moreover, the learned Special Judge has by oversight made a mis‑statement of fact when he says that in the report sent by the Superintendent to the I. G. of Prisons about the alleged riot it was mentioned that "even the yarn was burnt by the rioters". No such mention was made in the report, the material portion of which we have reproduced earlier from the copy produced by the accused, Exh. 8‑E. The learned Judge referred to the answer of Mr. Cardeiro to a question put to him by the Court. The question and answer may be reproduced:‑--
Q.‑Can you explain as to how this huge quantity of yarn could have been smuggled out of the prison
Ans.‑I cannot give a definite reply. It is possible that this quantity might have been smuggled out in instalments for a number of months. There is no positive proof as to how this huge quantity of material was converted by the (accused) to his own use. His mala fides are only proved by the fact that he did not report at all.
He then picked out a passage from the final report of the police, Exh. 7‑B, and reproduced it in his judgment, the extracts read as follows:
"Enquiries have been made to find out as to when and to whom the yarn misappropriated was sold or given but nothing could be found to this effect. There would be a question as to how the yarn was taken out of the jail when there was a strict watch at the gate by the jail staff. This could only be done with the connivance of the persons on duty. But to prove this there is no evidence whatsoever on record."
From these and other material the learned Judge recorded his conclusion as follows:‑--
"It is the duty of the prosecution to prove beyond all reasonable doubt that this huge quantity of yarn was in fact misappropriated. The burden of proof lies upon them and it has not been discharged to the satisfaction of the Court. As a matter of fact, no body could have played any mischief unless all persons, from Jamadar right up to Superintendent, had conspired. It is a riddle how this kind of property could have been smuggled out of the prison and then misappropriated. The first and the most important charge of misappropriation thus stands not proved."
The statement of law made by the learned Judge in the opening part of this passage is, in our opinion, not well founded. We do not agree that misappropriation, in fact, must be proved before a conviction for the offence of criminal breach of trust can take place. If in the circumstances of the case or by long lapse of time as it is the case here the prosecution is not able to trace the misappropriated property or to produce the evidence of the manner in which the misappropriation or conversion in fact took place, it cannot be said that the prosecution must fail even if there is other evidence which leads to the conclusion that the property which was entrusted to the accused or over which he had domain and which was found missing, was misappropriated by him. The Supreme Court in the case of State v. Abu Raza (P L D 1959 S C (Pak.) 309) observed:
"While on the evidence it cannot be said that the ultimate intention of the respondent was to misappropriate the whole amount, the evidence contains clear indications that some improper motive underlay the deal and the irregularities with which it was accompanied. In a case like this it is not, and has never been understood to be, the duty of the prosecution to prove by evidence that the money received by the accused was actually converted to his own use; it is sufficient if the Government was deprived of the use of the money for an unexplained period, it being presumed in such a case that the accused had applied this money to his personal needs."
In this case their Lordships were dealing with a criminal appeal against the acquittal of the accused by the Dacca High Court on a charge under sections 409 and 466, P. P. C. This was a case of temporary misappropriation. The accused‑respondent in this case was a Superintendent of the East Pakistan Government Press at Dacca. In pursuance of the acceptance of a tender by one Shaikh Ahmad a certain quantity of cut paper was delivered to him and a kutcha receipt for Rs. 4,200‑8‑0 signed by the respondent was issued to him. This was done on 31st January 1954. In connection with the investigation into a theft of cut paper the police came by the kutcha receipt which had been issued by the Superintendent. They insisted upon the production of a pucca receipt and this was issued to Shaikh Ahmad on 19th March 1954. On the same day, the respondent made over the amount of Rs. 4,200‑8‑0 to the cashier who after making the entry in the relevant register deposited the money in the treasury on 23rd March 1954. The accused along with others was prosecuted for temporary misappropriation of this amount. On these facts their Lordships reached the conclusion which has been reproduced above. It would be noted that it was recognised that the ultimate intention of the respondent may not have been to misappro priate the whole amount and yet having regard to the irregularities it was held that there was some underlying improper motive. It was further held that it was not the duty of the prosecution to prove by evidence that the money received by the accused was actually converted to his own use. In the same judgment while dealing with the charge under section 466 their Lordships held:‑--
"Admittedly, the printed suspense account register was prepared by the respondent in or after August, whereas the entry in it which is signed by him is false both as to its contents and as to the alleged date of adjustment. He was thus rightly convicted by the Special Judge under section 466."
18. The learned Special Judge relied and quoted from a judgment of the Patna High Court reported in Harakrishna Mahatab v. Emperor (31 Cr. L J 249) but the facts of this case were entirely different. The accused in this case was the Chairman of a District Board and a grant of Rs. 2,000 towards the construction of a certain Middle School of the Committee of which he was also the President, was said to have been misappropriated because when the Board subsequently recalled this amount after a new Chairman had come, the explanation given by the accused was that this money was already spent in buying building materials for that, school. Certain irregularity in the manner in which this money was dealt with was alleged. Their Lordships observed that that might be a matter with regard to the fixing of a civil liability but with regard to the charge of misappropriation they found that the explanation given by the accused that certain advances bad been made for purchase of building material had not been proved to be false. It was also noted that building material was actually lying and had been shown to the investigating officer in the course of investigation. It was upon these facts that the observations quoted by the Special Judge were made. The need for "clearer evidence of dishonest intention" was required in this case because of the facts of that case which has been briefly referred to above. In the case before us there is no doubt that the accused had dominion over the cotton yarn. A large quantity of this cotton yarn, namely 13,000 lbs. were missing. The accused deliberately made twp ' false entries to cover up the shortage of this yarn. He must have known that after he had handed over, the shortage would be discovered. The fact that this happened in Jail, which is otherwise guarded, is not a circumstance which outweighs the other circumstances. It is also to be remembered that the accused .himself was the Assistant Superintendent of the jail. It may even be that there were smaller frys who were also involved into this misappropria tion, but the mere fact that they cannot be found out does not mean the accused must also escape liability, Any misappro priation of the yarn would not be possible without the complicity of the accused. It was he who used to maintain the registers and record the entries of receipt of yarn, its issue and expenditure and also the adjustment after issue in the stock register. The explanation which he offered from time to time is not even plausible as we have attempted to show earlier and there are no circumstances from which any reasonable way for accounting of the shortage of such a large quantity of the yarn can be satisfactorily explained. Therefore, disagreeing with the finding of the learned Special Judge we hold that the charge against the accused under section 409 has been established beyond reasonable doubt.
19. With regard to the charge under section 466, there are the two false entries of 10,000 lbs. Exh. 3‑D and of 4,200 lbs. Exh. 3‑C which purported to show that this quantity had been issued to Hyderabad Central Prison. This clearly amounted to forgery because the intention of the accused was to falsely explain away and suppress the discovery of the missing quantity of cotton yarn which was the property of the Government and by the making of that false entry Government would suffer injury. The charge under section 466 is, therefore, established both in regard to entry Exh. 3‑b as well as in regard to entries Exhs. 3‑C and 4‑A. The charge under section 477‑A is also established because the accused was an officer and in that capacity wilfully and with intent to defraud made the alteration in the stock book as well as in the sale register by making the entries, Exhs. 3‑D, 3t and 4‑A. This charge would be sustained against the accused even if he, had been acquitted of the charge of criminal breach of trust. 20. The charge under section 468 is also established because the forgery was committed with the dishonest intention that the Government may be deceived into believing that the two items of property, namely 10,000 lbs. and 3,000 lbs. of yarn had been issued to Hyderabad Central Prison and, therefore, omit to take any action against the accused which would have been promptly taken if that deception had not been played.
21. In view of our findings we set aside the judgment of the learned Special Judge and convict the accused under sections 409, 466, 468 and 477‑A, P. P. C. Under section 409 we sentence the accused to 6 months' rigorous imprisonment and a fine of Rs. 26,508 which was the value of 13,000 lbs. of yarn. On his failure to pay the fine he shall suffer further imprisonment for a period of 6 months. Under sections 466, 468 and 477‑A we sentence the accused to imprisonment for 6 months under each count. The substantive sentence under section 409 and under sections 466, 468 and 477‑A, P. P. C. shall run concurrently. The appeal is accordingly allowed.
K.B.A. Appeal accepted.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer