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Criminal Appeals Nos. 178 and 193 of 1967; decided on 8th, April 1968.
S. 120-B-Conspiracy Matter going beyond stage of mere conspiracy and offences alleged to have been committed in pursuance thereof-Accused should be charged with substantive offence-Section 120-B not relevant in such case.
Mallimaggala Venkataramiah and others A I R 1938 Mad. 130 and Government of East Pakistan v. Zakir- Hossain and others 8 D. L R 48 eel.
, S. 237-Accused, originally charged for offence under S. 120-B, P. P. C.-Evidence on record showing that accused in pursuance of conspiracy commit ted offence of cheating-Accused can be convicted under S. 420, P. P: C., notwithstanding fact that he was not charged for such offence.
Crown v. Sultan Mahmood and others 7 D L R (F C) 78 ref.
, S. 420/109-Absence of positive' evidence-Suspicion only that accused abetted commission of offence-Suspicion however strong does not take place of proof- Accused given benefit o f doubt.
A. R. M. Amirul Islam Chowdhury for Appellant (in Appeal No. 178/67).
Pramode Chandra Bose and Habibur Rahman Khan for Appellant (in Appeal No. 193/67).
Muhammad Ali for the State.
Date of hearing: 5th April 1968.
These two appeals arise out of the same judgment and mostly common facts and so they are being disposed of by this one judgment.
Both the appellants have been convicted undo section 420/ 120-B of the Pakistan Penal Code and sentenced to simple imprisonment for 6 months and a fine of Rs. 500 each, or in default to simple imprisonment for a further period of 2 months each. Muhammad Shamsul Hoque, the appellant in Appeal No. 178 of 1967 has been further convicted under section 411 of the Penal Code and sentenced to simple imprisonment for 4 months. The trial was held by the Ex-Officio Special Judge, Dacca who passed the order of conviction and sentences.
The prosecution case briefly is that Muhammad Shamsul Hogue, an Assistant of Stamp-vendor Nasirud-din entered into a criminal conspiracy with accused Shamsuddin on 24-6-1963, handed over an impressed Court-fee stamp of the value of Rs. 3,000 along with an application for refund and an Agentnama purported to have been executed and signed by Mr. T. H.- Khan, Advocate, High Court, Dacca to Revenue Agent Nakunja Bihari Chanda for refund of the value of the stamp. The documents were filed at the office of the Additional Deputy Commissioner, Dacca on 26-6-1963-for the refund. On 11-7-63 Nikunja Bihari obtained refund of Rs. 2,812.50 paisa from the Dacca Treasury after deducting the commission fee of Rs. 187.50 paisa from the total sum of Rs. 3,000. Nikunja sent the money to Mr. T. H. Khan through another Advocate Mr. Pandey. This took Mr. T. H. Khan by surprise as he had never applied for the refund and had not executed the application or the Agentnama. This fact was brought to the notice of the Additional Deputy Commis sioner, Dacca by Nikunja Bihari. On verification it was found that stamp paper worth Re. 3,000 or any amount was sold to Mr. T. H. Khan on 18-4-63 or -any other date. The further prosecution case is that Shamsul Hogue by entering into a criminal conspiracy with Nasiruddin, the appellant in Appeal No. 193 of 1967, and other men of the Treasury managed to obtain refund of the value of the stamp from the Government Treasury by falsifying office records and forging signature of Mr. T. H. Khan thereby causing wrongful loss to the Government and wrongful gain for themselves. It was further alleged by the prosecution that in 1958 twenty impressed Court-fee stamps of the value of Rs. 3,000 each were stolen from the Dacca Treasury which led to a criminal case against one Shahjahan, the then dealing clerk of the Stamp Section and that the stamp in question was one of these stamps and was dishonestly retained in his possession by Shamsul Hoque knowing it to be stolen property.
Defence pleaded not guilty and raised a plea of bona fides.
The prosecution case rests on the oral evidence of 17 witnesses and certain documentary evidence.
The prosecution case that a refund of Rs. 2,812.50 paisa was obtained from the Dacca Treasury against the value of stamp amounting to Rs. 3,000 after deducting Rs. 187.50 paisa, at commission fee has been established beyond any shadow of doubt by the evidence of P. W. I Nikunja Bihari Chanda, P. W. 2 Mr. T. H. Khan, Advocate and P. W. 3 Birendra Chandra Panday, Advocate, High Court. P. W. 1 who is a Revenue -Agent Makhteer has proved the facts of the case in general and testified to the facts of the case in general and testified to the fact that on 24-6-63 appellant Shamsul Hoque handed over a stamp of the value of Rs. 3,000 together with an application and an Agentnama purporting to contain signatures of Mr. T. H. Khan. He obtained the signature of Shamsul Hoque on the Agentnama. which, is Exh. 1 (2). The application was duly submitted and a refund of Rs. 2,812.50 paisa was taken after deducting Rs. 187.50 paisa as commission fee at the rate of 1 anna per rupee. He was asked by Shamsul Hoque to endorse the cheque in his favour, but he refused. He got the cheque cashed through B. C. Chanda, a vendor's agent. Subsequently he sent the money to Mr. T. H. Khan through Mr. Panday who later on informed him that Mr. T. H. Khan expressed his surprise saying that he had never signed such petition or Agentnama and that he never purchatied any stamp to the tune of Rs. 3,000. Mr. B. C. Panday and Mr. T. H. Khan have fully corroborated him so far as they were concerned. Mr. T. H. Khan emphatically denied the signatures in the application and the Agentnama as also the factum of his having purchased the stamp of the value of Rs. 3,000.
P. W. 5 B. C. Chanda denied that he ever purchased any stamp of Rs. 3,000 on behalf of Mr. T. H. Khan either on 18-4-63 or any other date. He further deposed that the signature in the stamp endorsement on the back of the stamp paper appeared to him to be of appellant Nasiruddin, who was the Head Clerk in the Treasury Office. This witness further stated that he received a cheque for Rs. 3,000 from Nikunja Bihari Chanda minus com mission fee of Rs. 187.50 paisa and that after encashment he made over the money to Nikunja.
P. - W. 6 Jainal Abedin, an L. D. Assistant attached to the Collector's Nezarat, Dacca also put support to the prosecution case that one stamp paper of the value of Rs. 3,000 together with an application for refund and an Agentnama was submitted in his presence on 25-6-63 and that the Additional Deputy Commis sioner passed order for refund. This witness also deposed that the signature in the stamp on the back of the stamp paper was of appellant Nasiruddin.
Another L. D. Assistant attached to the office of the Sub. Divisional Officer, South, Dacca, namely, P. W. 7 Amirul Islam deposed that on 18-4-63, no amount in respect of purchase of stamp of the value of Rs. 3,000 by B. C. Chanda for Mr. T. H. Khan was entered in the relevant register.
P. W. 8 Hakim Wali Muhammad Jan deposed that being requested by Nikunja to accompany appellant Shamsul Hoque to the house of Mr. T. H. Khan at Magbazar he went with the latter in a rickshaw and Shamsul Hoque having gone to search the house of Mr. T. H. Khan returned and reported that he was not at home. He has also testified to the fact that on return they paid back the money to Nikunja. P. W. 9 Mr. A. Zafar was the Treasury Officer, Dacca in 1963. He testified to the procedure for payment in the Treasury and affirmed that the initial Exh. 6 (1) on the back of the stamp paper concerned is in the hand of appellant Nasiruddin.
P. W. 10 Abdul Khaleque, another L. D. Assistant of the Stamp Section, Dacca Treasury testified to the procedure regard ing the issue of stamps and the refund of value of stamp papers. This witness also deposed that the initial, Exh. 6 (1) appeared to be that of appellant Nasiruddin. This witness also stated that many stamps of higher denominations such as Rs. 3,000 and of Rs. 5,000 were stolen from Treasury during the incumbency of the office of the Head Clerk Nasiruddin.
P. W. 11 A. W. Talukdar is Hand-writing Expert, whose evidence is that on examining the writings and signatures on the application and the Agentnama, he was of the opinion that they were writings and signatures of appellant Shamsul Hoque. He opined that the writings and initials on the treasury stamp are not those of appellant Nasiruddin.
P. W. 15 S. Huq Mazumdar, Deputy Superintendent of Police held investigation in some cases against appellant Nasiruddin and seized the invoice Exh. 10. Local-investigation of this case was held by A. Hashem, P. W. 17, Assistant Inspector, D. A. B., Dacca. He seized necessary documents, obtained a specimen writings and signatures of the appellants, and on completion of investigation submitted charge-sheet after duly obtaining sanction of the appropriate authority.
The Court-fee stamp in question, Exh. 14 bears an endorse ment on its back-Exh. 6 which goes to show apparently that Court fee to the value of Rs. 3,000 was sold to Mr. T. H. Khan through B. C. Chanda. The alleged signatures on the application for refund and the Agentnama of Mr. T. H. Khan are Exhs. 1 (4) and 1 (3) respectively. As already stated these signatures were emphatically denied by Mr. T. H. Khan and there is not the least scope for doubt that he did not sign the application or the Agentnamat; It is also abundantly clear from his denial as well as other evidence adverted to that he did not purchase any stamp to the value of Rs. 3,000 at all. There is, therefore, no doubt that the Dacca Treasury was cheated and in consequence thereof there was dishonest inducement for payment of the said sum of Rs. 2,812.50 paisa.
Before I proceed further to discuss the evidence it will be convenient to dispose of a question of law raised by Mr. P. C. Bose, learned Advocate for appellant Nasiruddin. He has sub mitted that where the matter has gone beyond the stage of mere conspiracy, an offence which was alleged to have been committed in pursuance thereof, section 120-B is wholly irrelevant. In the case of Mallimoggala Venkataramiah and others A I R 1938 Mad. 130 the learned Judge observed as follows: -
"Section 120-B only applies where no offence has been actually committed and it is only in the latter rare cases where no crime has been committed . . . . . . But where the matter has gone beyond the stage of mere con spiracy and offences are alleged to have been actually committed in pur suance thereof, sections 120-A and 120-B are wholly irrelevant. Conspiracy is one form of abetment and where an offence is alleged to have been committed by more than two persons, such of them as actually took part in the commission should -be charged with the substantive offence, while those who are alleged to have abetted it by conspiracy should be charged with the offence of abetment under section 109."
This principle was followed by a Division Bench of this Court in the case of Government of East Pakistan v. Zakir Hossain and others 8DLR48. No authority to the contrary could be cited by Mr. Muhammad Ali representing the State. Acting on this principle it must be held that the- conviction under section 420/120-B of the Pakistan Penal Code in this case is not sustainable. It follows from the above principles that where an offence is alleged to have been committed by two or more persons, the person responsible for commission of the offence should be charged with the substantive offence, while the person alleged to have abetted it by conspiracy should be charged withthe offence of abetment under section 109, where the matter has gone beyond the stage of mere conspiracy and specific offences are alleged to have been committed.
In the present case appellant Shamsul Hoque was not charge with having committed the offence of cheating under section 42 of the Penal Code and appellant Nasiruddin was not charged that he abetted the commission of the said offence. The question i whether under such circumstances appellant Shamsul Hoque can b convicted under section 420 and Nasiruddin under section 420/109 of the Penal Code provided that the prosecution allegations against them are found to have been proved beyond reasonable doubt. In this connection Mr. Muhammad Ali representing the State has cited the case of The Crown v. Sultan Mahmood and others 7DLR(FC)78. Their Lordships of the Federal Court held in that case that reference to the statutory provisions relating to powers exercise able by the High Court in appeal and in revision will show that with two exceptions, powers exerciseable in the two modes are in all respects similar. The exceptions are that in an appeal sentence may not be enhanced whereas this may be done in revision and secondly, that in revision an acquittal shall not be converted into a conviction, whereas this may be done in an appeal against an acquittal Every other power, whether pro cedural or final, is equally exerciseable in appeal as it may be exercised in revision by the High Court. No restriction is placed upon the High Court's power in either case to examine all the facts and circumstances as well as the entire evidence, either in appeal or in revision, for type purpose of reaching the findings necessary for the disposal of the case.
A reference to the accusation in this case will show that the appellants were charged that during the period from 18-4-63 to 11-7-63 they entered into a conspiracy at the. Dacca Treasury Office to do or cause to be done an illegal act of defrauding and deceiving the Dacca Treasury to the extent of Rs. 3,000 minus the Commission fee of Rs. 187.50 paisa by fraudulently presenting an application for the refund of the value of the above-mentioned stamp after falsifying the records of the office of Treasury and<<<<<<
forging signature of Mr. T. H. Khan, an Advocate in the Agent nama and the said act of cheating was done in pursuance of that conspiracy. It is thus manifest that both the appellants were charged not only for conspiracy but also for cheating. If on examination of the evidence on record it is found that Shamsul Hoque committed the offence of cheating, then, in my opinion,
the principle of law to which reference has been made above will not stand in the way of this conviction under section 420 of the Code, and similarly if it is found that appellant Nasiruddin abetted him in the commission of the said offence, then he can be legally convicted under section 420/109 of the Penal Code.
I have already given a synopsis of the evidence, P. W. 1 Nikunja Behari Chanda has proved that the application for refund, the Agentnama and the Court-fee stamp in question were given to him by appellant Shamsul Hoque for the purpose of getting refund of the value of the stamp amounting to Rs. 3,000 on behalf of Mr. T. H. Khan, Advocate. His further evidence is that he duly submitted the necessary documents to the Refund Clerk whereupon Refund Case No. 518/62-63 was registered and sub sequently a voucher cheque was obtained for the value of the stamp minus the usual commission fee and that the cheque wa: duly cashed through B. C. Chanda on 11-7-1963. It is nec,;iess to reiterate here the emphatic evidence of Mr. T. H. Khan as also the testimony of P. W. 5 B. C. Chanda. There is no reason to doubt that the signatures on the application and the Agentnama were forged and they were forged by appellant Shamsul Hoque which fact is corroborated by the evidence of the Hand-writing Expert. It may be mentioned here that Shamsul Hoque did not dispute that he signed the application for refund and the Agent nama when he was examined under section 342 of the Code of Criminal Procedure. His whole defence was that whatever he did was done in good faith. Mr. Amirul Islam Chowdhury, learned Advocate for appellant Shamsul Hoque has employed the same argument in this Court. The question of bona fides does not arise. Shamsul Hoque was an Assistant of Stamp-vendor Shabjahan and his gontention was that all he did was done under instructions from Shabjahan. The Court-fee stamp Exh. 14 was, never sold to any one on any date and there is no such entry in' the sale register and no such money deposited in the Treasury. In face of these facts Shamsul Hoque falsely made endorsement on the back of the stamp paper and made entries to that effect. It has been proved by Mr. T. 1-I. Khan that Shamsul Hoque had no authority to write or sign the application for refund or Agentnama; but he did so. These were clearly mala fade acts and he cannot take cover now under a plea of bona fides. The ingredients of the offence under section 420 of the Penal Code have all been established against him. He deceived the officers of the Treasury and dishonestly induced them to deliver to him the sum of Rs. 2,812.50 paisa.
Another question that requires consideration so far as appellant Shamsul Hoque is whether he is guilty under section 411 of the Penal Code. The substance of the evidence of P. W. 9 Mr. A, Zafar, P. W. 10 Abdul Khaleeue and P. W. 14 Abu Tayeb
Khan, an Upper Division Assistant of the office of the Assistant Controller of Stamps as that stamps are supplied by the office of the Controller of Stamps to various Treasuries on the basis of indents accompanied by an invoice in each case giving details of the stamps supplied. Exh. 10 is the true copy of one such invoice
whereby 20 sheets of Court-fee stamps of the value of Rs. 3,000 each were-despatched through the Treasury clerk to the Dacca Treasury together with other stamps. The evidence of P. W. 12 Muhammad Serajul Huq, L. D. Assistant of the Stamp Section shows that the stamps supplied under Exh. 10 remained un accounted for in the Treasury Register. P. W. 15 S. Huq Mazumdar, Deputy Superintendent of Police investigated the case started over the theft of those stamps on the written complaint Exh. 13. Exh. 14 was one of those stolen stamps as will appear from the invoice Exh. 10. The fact that this stamp before us was in the possession of appellant Shamsul Hoque has not been seriously challenged. The suggestion on his behalf was that he obtained it in good faith from Vendor Shahjahan but this plea cannot be accepted in view of his complicity in the whole nefarious affair. I cannot help holding that he dishonestly retained the stamp knowing that it was stolen property. Thus his conviction under section 411 of the Penal Code is also well grounded.
The evidence against appellant Nasiruddin is slender. He is said to have put his signatures or initials in the treasury stamp on
the back of the stamp paper of the value of Rs. 3,000 Exh. 14, It is not a signature but an initial. The Hand-writing Expert has positively stated that this initial does not tally with the
specimen initials of appellant Nasiruddin. The conviction of this appellant has been based on the oral testimony of two witnesses, namely, P. W. 6 laynal Abedin and P. W. 9 Mr. A.
Zafar, who was Treasury Officer of the Dacca Treasury at the relevant time. Both of them have affirmed that this initial
Exh. 6 (1) is that of appellant Nasiruddin. Whether their evidence in this behalf can be relied upon in view of the Hand-writing Expert's evidence to the contrary is a question to be considered.
The opinion of the Haod-writing Expert as to the authorship of the questioned writings or signatures is not infallible; on the contrary it is not a safeguard for leading to any conclusion. In the nature of things in the present case the evidence of P. Ws. 5
and 9 cannot be treated as dependable regard being had to the fact that the initial Exh. 6 (1) consists of one or at best two letters without any break or full-stop between the two. The Court below did not himself examine this initial by comparison
with the specimen initials of Nasiruddin or with his admitted initials on the back of the other stamp papers. I have myself looked at the initial Exh. 6 ( 1) and compared the same with the specimen and admitted initials and I have to admit that I cannot draw any positive conclusion as to whether or not this initial Exh. 6 (1) is that of Nasiruddin. There are, however, certain
circumstances which cannot be ignored in this case. Nasiruddin had been working in the Treasury Office for 8 or 10 years and in 1958 a large number of Court-fee stamps involving a huge amount were stolen from the Treasury and Exh. 14 was one of such stamps.
The alternative plea of Nasiruddin that he might have in advertently put his initial is not strong enough to afford his complete immunity. Nevertheless; in the absence of positive evidence only a strong suspicion arises in the mind that Nasiruddin was an accomplice and abetted the commission of the offence o cheating by Shamsul Hoque, but suspicion, however, strong doe not take the place of proof. That being so, I give him benefit of doubt.
In the result, the Appeal No. 193 of 1967 is allowed and the conviction and sentence of the appellant are set aside. The appellant Nasiruddin be discharged from his bail bond. Appeal No. 178 of 1967 is dismissed subject to the modification that the conviction is altered from one under section 420/120-B to one under section 420 of the Penal Code. The appellant Muhammad Shamsul Hoque must surrender to his bail bond and serve out the remainder of the sentence and should also pay the fine now.
Order accordingly.
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