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Criminal Appeals Nos. 354 and J‑386 of 1968, heard on 23rd June 1969.

, S. 465‑Forgery‑Prosecution witness alleging for first time in cross‑examination that he found numbers on impugned receipts scored out when received‑No evidence to establish tampering of receipt by accused‑Accused neither charged nor convicted on this allegation‑Conviction set aside, in circumstances.

Ghulam Hyder Memon for Appellant No. 1.

Appellant (present in custody).

Noorul Hassan for A. A.‑G. for the State.

Date of hearing : 23rd June 1969.

These are two appeals against the judgment of Special Judge‑cum‑Enquiry Officer, Hyderabad convicting the appellant Ahmad pan for an offence under section 401, P. P. C. and sentencing him to undergo R. I. for 12 months and to pay fine of Rs. 1,200 or in default undergo R. I. for 6 months, while convicting Badal Khan appellant under section 465, P. P. C. and sentencing him to undergo R. I. for 12 months.

Abdur Rahim, Muhammad Amin and Muhammad Bashir were butchers and were occupying shops owned by the Town Committee, Padidan and used to pay rent at the rate of Rs. 248 per month for all the three shops. Appellant Ahmad Khan was Octroi Clerk while the appellant Badal Khan was an Octroi Inspector in the Town Committee, Padidan. Appellant Ahmed Khan recovered Rs. 992.00 as rent from Abdul Rahim and others and issued receipts Exhs. 5 to 8. Muhammad Ibrahim was also occupying the shop of town committee at a monthly rent of Rs. 6.50 and paid Rs. 32.50 to the appellant Ahmed Khan and obtained receipt No. 4. Subsequently appel lant Badal Khan took away the receipts from Abdul Rahim and passed a receipt to the effect "received from Mr. Abdul Rahim, the receipts of market for checking which shall be returned to him after checking". After some days the receipts Exhs. 5 to 8 were returned to Abdul Rahim but he did not take back the receipt Exh. 9. It appears that the amount received from Abdul Rahim by the appellant Ahmed Khan was not entered in the daily book and this was discovered subsequently. A report was lodged with the police and after holding an investigation and obtaining the sanction for the prosecution of the two accused both the appellants were challaned.

The learned Special Judge‑cum‑Enquiry Officer read out the substance of accusation to the appellants. It was to the effect that they being public servants had received Rs. 992 and Rs. 32.50 from Abdul Rahim and Muhammad Ibrahim res pectively on account of rent charges of the shops vide receipts and misappropriated the amount in collusion with each other as well as by destroying the serial numbers and dates of the receipts and not making the entry in the roznamcha and also did not credit the amount in the town committee and there fore they committed an offence under sections 409, 468, 477‑A, P. P. C. read with section 5(2) of Act II of 1947 The appel lants pleaded not guilty. The learned Special Judge examined 5 witnesses, namely, Ghulam Ali, Muhammad Ibrahim, Abdul Rahim, Mr. Mohiuddin, Anti‑Corruption Inspector and Mr. Addul Rashid, Anti‑Corruption Inspector. On the assessment of the evidence the learned Special Judge found the appellants guilty of the offences for which they were convicted and sentenced.

Before I examine the merits of the findings reached by the learned Special Judge, I would like to briefly state the evidence of the witnesses. The first witness is Ghulam Ali, he is the Secretary, Town Committee. He stated that appellant Ahmed Khan was the collection Munshi and he used to collect the rent of the shops and piri taxes etc., while appellant Badal Khan was Octroi Inspector. It was further stated by him that whatever amount was collected by recovery Munshi was mentioned by him in challan which he submitted to the Octroi Inspector who deposited it is the bank. On seeing the receipts Exhs. 4 to 8, he stated that thaw receipts were in the handwrit ing of appellant Ahmed Khan and bore his signature. With regard to receipt Exh. 9 by confirmed that it was in the handwriting and under the signature of appellant Badal Khan. He further stated that the amounts mentioned in Exhs. 4 to 8 were never entered into the daily book.

The second witness is Muhammad Ibrahim who stated that he had paid Rs. 32.50 as rent to the appellant Ahmed Khan and obtained the receipt Exh. 4 from him. He had produced the receipt before the police.

The third witness is Muhammad Ibrahim. He stated that he had paid money to appellant Ahmed Khan and obtained receipts Exhs. 5 to 8 from him. He further stated that Badal had taken away these receipts from him and issued receipt Exh. 9. He returned the receipts to him after two to four days. In the cross‑examination to appellant Ahmed Khan he stated that it was true that when appellant Badal returned the receipts to him, he had scored the numbers therefrom.

The remaining two witnesses, namely, Mr. Mohiuddin and Abdul Rashid are the Anti‑Corruption Inspectors. The sanction orders for the prosecution of the appellants have also been produced.

Now taking up the case of the appellant Ahmed Khan, the evidence which was relied upon by the learned Special Judge was of two witnesses, namely, Muhammad Ibrahim and Abdul Rahim. No fault can be found with regard to the assessments of their evidence against appellant Ahmed Khan. Both the witnesses stated in unmistakable terms that they had paid money to the appellant Ahmed Khan and he had passed the receipts Exhs.4 to 8. There is absolutely no reason to disbelieve their evidence. Nothing had been brought on record to discredit their testimony. Their evidence had also been supported by the evidence of Ghulam Ali, Secretary of the Town Committee who stated that all the five receipts were in the handwriting and under the signature of appellant Ahmed Khan. Denial by the appellant Ahmed Khan in respect of these receipts cannot be accepted. It is further in the evidence of Ghulam Ali that the amount recovered by the appellant Ahmed Khan was not entered in the daily book (roznamcha). It therefore follows that the amount was misappropriated by the appellant Ahmed Khan. It has been neither alleged by him nor it is established that this amount was credited by him in the town committee or delivered with the challan to Octroi Inspector for being deposited in the bank. Thus he is guilty of the offence for which he was convicted.

So far the appellant Badal Khan is concerned, he was convicted for an offence under section 465, P. P. C, on the ground that he had torn the numbers of the receipts. This conclusion of the learn.d Special Judge is not supported by the evidence on record. There is not an iota evidence to establish that the appellant Badal Khan had torn the numbers. Muhammad Ibrahim is the only witness who had deposed that the appellant had taken the receipts from him but he did not say a word in his evidence that when the receipts were return ed to him he had found them torn. The only allegation that he had made against appellant Badal Khan was that when the receipts were returned to him, he had found the numbers hav ing been scored. This allegation was for the first time made by him in the cross‑examination by appellant Ahmed Khan. The appellant Badal Khan was neither charged for this allega tion nor he was convicted of the offence on the basis of this allegation. It seems that the learned Special Judge did not consider this allegation to be true. I have also looked at the receipts and I do not find the numbers have been scored. It is not understood how the learned Special Judge found the allegation of tearing established against the appellant Badal and proceeded to convict him on account of that allegation.

In the result the conviction and sentence of appellant Ahmed Khan are maintained and his appeal is dismissed while the appeal of appellant Badal Khan is allowed and his conviction and sentence are set aside. Appellant Badal Khan is on bail. His bail bonds are discharged.

Orders accordingly.

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