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Criminal Petition for Special Leave to Appeal No. 93 of 1982, decided on 28th March, 1982.

(Against the judgment of the Lahore High Court, dated 15‑2‑1982, passed

in Criminal Appeal No. 404/1972).

Penal Code (XLV of 1860)‑

‑‑ S. 409/468/420‑Cheeating‑Forgery‑Criminal Breach of trust by Public Servant-Petitioner throughout acting as Secretary of a Co operative Society forging resolutions of Society permitting Society to take loan of certain amount from Bank on basis of a pronote to be executed by Society land authorising Bank to pay money to Treasurer of Society‑Bogus promote prepared by petitioner and Treasurer of Society authorised to draw money from Bank‑One of co‑accused posing himself to be such a Treasurer drawing amount on being identified by petitioner to be Treasurer of Society‑Petitioner having obtained money from Bank with help of his co‑accused by misusing his position through forgery and fraud a clear case of criminal breach of trust, held, made out against him‑Acts done by petitioner showing petitioner having dishonestly induced Bank with help of his co‑accused, to deliver money to co‑accused whom he identified to be real Treasurer of Society, offences of cheating and forgery, held further, also brought home to petitioner.

Hassan Ahmad Khan Kanwar, Advocate Supreme Court with Sh. Salahuddin, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 28th March, 1982.

ASLAM RIAZ HUSSAIN, J.

‑Shamir Ahmad petitioner seeks Leave to Appeal against the order of the Lahore High Court dated 15.2‑1982, dismissing his appeal against conviction in a case under section 409/468/420, P. P. C.

2. The facts giving rise to the petition are, briefly, that Shamir Ahmad accused, a school master by profession, was also serving as a Secretary Co‑operative Societies, Baqapur Kohna, Chunian, District Kasur. He joined hands with two other persons namely Sanaullah and Muhammad Din (since dead) and prepared a bogus document showing that the Managing Committee of the said Co‑operative Society had passed a resolution on 17-4‑1964 permitting the Society to take a loan of Rs. 6,200 from the Central Co‑operative Banl, Kasur, on the basis of a Pronote to be executed by the said Society and authorizing the Bank to pay the money to Muhammad Din, treasurer of the said Society. An entry to this effect was also made in the Minute Book (P. W. 12/B). It showed that the resolution had been passed by Shahabuddin as President of the said Society while Khushi Muhammad, Moosa and Muhammad Din, were shown as members of the Committee, who had attended the meeting in which the resolution in question was passed, although at the relevant time one Inayatullah was the President while Moosa was not even member of the said Society.

On the basis of the said resolution a bogus Pronote (P. W. 12/D) for a sum of Rs. 6,200 was prepared by Shamir Ahmad petitioner in the capacity of Secretary of the said Society which is shown as having been thumb marked by Shahabuddin, Khushi Muhammad and Sardar Muhammad, as members of the Committee. It was attested by Shamir Ahmad petitioner accused in his capacity as the Secretary of the Society, authorizing Muhammad Din to draw the money. Muhammad Din co‑accused posed him self to be the real Muhammad Din (i.e. P. W. 10), and affixed his thumb impression on the reverse of the Pronote. He went to the Bank drew Rs. 6,200 on the strength of the said Pronote. The debit voucher (Exh. P. W. 12/E) prepared by the Bank shows that Shamir Ahmad petitioner in the capacity of Secretary of the said Society identified Muhammad Din (co‑accused) as Muhammad Din (P. W. 10) who was the real treasurer. After receiving Rs. 6,200 from the Bank the petitioner in his capacity aforesaid credited the said amount to the account of the Society in the Cash Book. Out of this amount Rs. 700 were again deposited in the bank while the remaining amount was shown to have been distributed among Rehmatullah, Inayatullah Abdullah and Sanaullah as loan. This was done through a bogus resolution (Exh. P. W. 12/G) which was shown as having taken place on 22‑4‑1964. It is written in the hand of Shamir Ahmad petitioner and only the presence of one member of the Society, namely, Sardar Muhammad was shown therein although, according to the rules out of 5 members of the Managing Committee at least 3 members were required to participate in the meeting. Bogus bonds from the aforementioned four persons, who were shown as having been given the loans, were also fabricated. These are Exh. P. W. 12/H, J. K. and L. Each of them purported to bear the thumb impression of the said persons.

The fraud and forgery were discovered by Shabbir Ahmad (P. W. 12), Inspector of the Co‑operative Societies, Tehsil Chunian, when he visited the village and checked the account of the aforementioned Society and after investigation, all the three persons were put up for trial.

3. At the trial the prosecution proved the handwriting and signatures of Shamir Ahmad petitioner on most of the documents and resolutions etc. mentioned above through a Handwriting Expert. It also relied on the testimony of some of the persons who were falsely shown to be present at the meeting wherein the resolution in question was shown to have been passed. They stated that they had never participated in any such meeting. Rehmat Ullah (P. W. 4), Abdullah (P. W. 3) and Inayatullah (P. W. 6), were also produced who stated that they had not taken any loan from the said society, that they had not filled the alleged bonds, Exh. P. W. 12; H, J. K. and L and that the thumb‑impressions affixed thereon were not theirs. This was also confirmed, inter alia by Mr. Afraan (P. W. 14), Finger Print Expert produced by the prosecution.

Evidence was also led to show the guilt of the two co‑accused but that need not be mentioned here in detail as Muhammad Din co‑accused has since died, while Sanaullah co‑accused has not filed a petition against the dismissal of his appeal. In his statement under section 342, Cr. P. C., the accused denied his guilt and produced 7 Defence witnesses including the Finger Print Expert Hafiz Elahi Butt (P. W. 1).

The learned trial Court believed the prosecution evidence and convicted all the accused under section 409, 468/420, P. P. C. and sentenced Shamir Ahmad to 2 years' R. I. Similar sentence of imprisonment was also awarded to the other co‑accused. Shamir petitioner was also sentenced to pay Rs. 6.000 as fine under section 409, P. P. C. He filed an appeal in the High Court, which maintained his conviction but reduced his sentence of fine to Rs. 5,000.

Feeling aggrieved the petitioner

has now sought Leave to Appeal from this Court.

4. We have heard the petitioner's counsel at length. Copies of the statements of the P. Ws. have not been appended with this petition. As such we have only gone through the impugned judgment and are inclined to agree with the learned Judge in Chamber that the guilt has been clearly brought to the petitioner. The learned counsel submitted that the facts proved against the petitioner do not make any offence under section 420, P. P. C. He referred to the definition of cheating and submitted that the acts proved to have been done by the petitioner did not amount to cheating.

We are, however, of the view that the acts done by the accused‑petitioner which have been proved on the record clearly show that he had dishonestly induced the bank, with the help of his co‑accused, to deliver the money in question to Muhammad Din (co‑accused whom he identified as the real] Muhammad Din (P. W. 10) the treasurer of the Society. The contention, therefore, has not force and is repelled.

5. He contended next that there was no entrustment of money in this case as such the offence was not covered by section 409, P. P. C. This contention too is misconceived. Shamir Ahmad throughout acted ‑in. his capacity as the Secretary of the aforementioned Society and misusing hi, position obtained money from the Bank with the help of. his co‑accuse through forgery and fraud. We are, therefore, of the view that he is clearly guilty of breach of trust and was rightly convicted under section 409, P. P. C.

In view of the above discussion the petition is dismissed as being without any merit.

Petition dismissed.

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