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Criminal appeal No. 47 of 1981, decided on 26th April, 1984.

‑‑‑Ss. 405 & 409‑‑Prevention of Corruption Act (11 of 1947), S.5(2)‑ Accused a bus conductor charged for misappropriation of a certain amount collected by sale of tickets or a route for a day and not depositing amount of sale on that day but depositing same two days after‑‑accused taking plea that as per practice he spent some amount on purchase of petrol, oil etc. and on reimbursement of bills thereof he was to deposit sale amount‑‑Statements of witnesses showing that it was a. regular practice prevailing in Road Transport Corporation that conductors of buses used to deposit their collection not on same day but even after four or five days as in some cases they purchased petrol. mobile‑oil and other material during journey and made payments of sale collection as soon as these bills were reimbursed to them‑‑No show‑cause notice served on accused to enable him to offer an explanation and prosecution of accused ordered by administration right away‑ Ingredients of Ss.405 & 409, Penal Code, remaining unproved‑‑Practice of depositing money after four or five days having become an established rule in Road Transport Corporation and no exception taken by any body at time of such a practice‑‑Held, if money collected by an agent in due course of law was retained by him for benefit of principal for a little longer than it was supposed to be restored to principal, the question whether or not it amounted to a criminal breach of trust would be answered in light of attending circumstances and if element of mens rea was absent from story, agent could not be attributed a conduct justifying punishment under Ss. 405 is 409, Penal Code‑‑It was a case of departmental action and a departmental problem calling for reform in working of department to set things right by rejecting this practice and regularizing procedure for depositing cash in time‑‑Without regularizing procedure and correcting practice prevailing in department as a rule and making an exception in case of accused by singling him out for prosecution would smell some motive which might be anything but unfair‑‑Conviction set aside in circumstances.

‑‑Ss. 405 & 409‑‑Prevention of Corruption Act (11 of 1947), S.5(2)‑ .Appreciation of evidence‑‑Prosecution witnesses giving incriminating statements against accused and in cross‑examination they gave obliging statement‑‑Witnesses neither declared hostile nor at any stage their version belied by any other witness on behalf of prosecution‑‑Conclusion arrived at by Court below that witnesses had given obliging statements and acted in collusive conduct to exonerate accused from criminal liability, held, not justified.

G.M. Durrani for Appellant.

Zawar Hussain Jaffery, A.A.‑G. for the State.

Date of hearing: 25th April, 1984.

The appellant has been convicted under section 409, P.P.C. read with section 5(2) of the Prevention of Corruption Act II of 1947 and has been sentenced to suffer imprisonment for 5 days and pay a fine of Rs.500 or in default to undergo imprisonment for another 5 days. He has filed the appeal against this conviction.

The appellant is a bus conductor in the employment of the Sind Road Transport Corporation, Sukkur Depot. According to the prosecution he was assigned duty of bus conductor on route No. LA‑18, Sukkur Multan, on 9th July, 1980. It is alleged that he collected a sum of Rs.2.465.50 by sale of tickets on this route on that day. This amount he was supposed to deposit on his return and. it is admitted position in the case that this he failed to do. He deposited this amount on the 11th of July. 1980. A conduct which gave rise to this prosecution resulting in his conviction. Exh.2‑E is the office noting in the department and it would show the thinking of the department how [hey initially took up this case on the 10th of July, 1980. The clerk concerned prepared a note complaining about this default on the part of the accused and stated; It is serious as well as objectionable from audit point of view". The next senior officer forwarded to the next higher officer with his note that "It was very serious from audit point of view". The D.M. put up the final note "Case to be registered against him. Write a letter to S.P. ACE Sukkur for action": This is how the action was initiated on the 10th of July, 1980. F.I.R. was lodged on the letter, dated 10th of July, 1980 and the case was challaned and the appellant was put on trial before the learned Special Judge Anti Corruption who framed a charge Exh.1 which runs as follows:‑

"It is alleged that you were posted as bus conductor in S.R.T.C. Sukkur in the year 1980 and as such were public servant. It is alleged that you while on duty on 8‑7‑1980 on Bus No. LA 18 on Multan route, you collected Rs. 2,467.50 as sale‑proceeds of the tickets sold by you to the passengers but on return at Sukkur‑you did not deposit the said amount to tire credit of the Government and dishonestly misappropriated the same and thereby committed an offence punishable under section 409/420, P.P.C. read with section 5.(.2) d Act 11 of 1947 within the cognizance of this Court."

Five witnesses were examined on behalf of prosecution. Akbar Ali Exh. 3 is the Investigating Officer and had recorded F.I.R. in the case. He has produced certain documents which it is not relevant for the purposes of the present discussion to quote in extenso. I would pass on the main prosecution witnesses who have narrated the working in the S.R.T.C. and also disclosed how the money collected by the conductors of buses operating on different routes is dealt with by the conductors. There are four witnesses on this point, namely, Abdul Majeed Cashier Exh.2, Jamil Ahmed Booking Clerk Exh.4, Tufail Ahmed Traffic Assistant Exh.5 and Nabi Bux Senior Clerk S.R.T.C. Exh.6. They have in their statements taken a common position to prove that the appellant was on duty on 9th of July, 1980, that his collections of the day on account of sale of tickets was Rs.2,467.50, that he failed to deposit this money till the 11th of July, 1980. As a matter of‑fact the accused himself has accepted the collection of this money when he was questioned by the Special Judge, Anti‑Corruption on 30th of July, 1981 and it pertinent to examine his defence:‑

"Q. Is it correct that you were posted as bus conductor in S.R.T.C. Sukkur in the year 1980

A. Yes Sir.

Q. Is it correct that you were incharge of the Bus No. LA/80 on Multan route and you collected Rs.2,467.50 as the sale‑proceeds of the tickets, but you did not deposit this amount at Sukkur

A: I have deposited this amount on 11th instead of 9th. We purchase oil, mobile oil on the route, so till our bill is cashed we don't deposit, there is no such law but it is a practice that deposits are made late, after payments of the bills.

Q: Do you want to examine witness in' defence

A: Yes (1) Mashooq Ali, Stand Incharge Sukkur in S.R.T. Office, Sukkur."

This witness Mashooq Ali was examined and he has supported the accused by saying:‑

"It is a practice in the department that conductor can withhold the payment till his bills are cleared when conductor purchases oil on the route. He made payment after 3 days. He made late payment because his bills were not paid."

In the cross‑examination he said:‑

"It is not a fact that payment is to be made immediately by the conductor and there is no such practice Conductor himself deposit the money in the bank. Accountant makes the payment of the bills."

This defence witness may have given an obliging statement but the assertion of the accused is supported by all the prosecution witnesses in very clear and unambiguous terms and it is pertinent to quote their replies in cross‑examination. P.W. Abdul Majeed in cross‑examination has stated: "There is also practice in our department that the conductors deposit the money after 4 or 5 days." P.W.4 Jamil Ahmed Booking Clerk states: "Payments always are deposited late by the conductors, due to long procedures of bills etc.". P.W.5 Tufail Ahmed has stated it is a fact that payments are delayed due to long procedures of bills. It is fact that there is Anti‑Corruption case of the misappropriation of theft of transport material against the District Manager Ghulam Nabi Chachar. There has been no complaint previously against this member of the staff." P.W. Nabi Bux Exh.6 has stated in his cross‑examination: "Cash is deposited on 11th instead of 9th. Sometime cash is deposited late. Previously there are also complaints for depositing cash late".

The above 'statements clearly show that it is a regular practice prevailing in the S.R.T.C. that conductors of the buses deposit their collection not on the. same day but even after 4 or 5 days. It sometimes happens that they purchase petrol, mobile oil and other material during the journey and make payments out of these collections. As reimbursement of these bills takes time and the collections out of which these bills were paid remain unpaid to the cashier till the amounts for the bill are reimbursed to the conductor concerned. It may be a very unhealthy and unsavoury practice but practice it is as established by the evidence, recorded on behalf of the prosecution. The question arises whether it would amount to misappropriation of public money within the meaning of section 405 and misappropriation of Government money within the meaning of section 409. If the money collected by an agent in due course of law is retained by him for the benefit of principal for a little longer than it was supposed to be restored to the principal; does it amount to a criminal breach of trust, the answer is to be found in the light of the, attending circumstances and if the element of mens rea is absent from the story, the agent cannot be attributed a conduct justifying punishment under these sections. In my opinion it was a case of departmental action; calling for reform in the working of the department to set, things right by rejecting this practice and regularising the procedure for depositing the cash in time. It is an administrative problem and the conductors are to be reimbursed for the expenses incurred by, them during journeys on purchase of fuel and other spares. Without; regularising the procedure and correcting the practice prevailing in the department as a rule and making an exception in the case of the appellant by singling him out for prosecution. It smells of some motive which may be anything but unfair.

Now I would advert too the treatment the learned Judge has given to this situation in his judgment. The relevant portion of the judgment of the learned Judge is as follows:‑

"If the contention is that it was the practice followed by the concerned officer to receive the payment after he clearance of the bills first, of the conductors who spent money on the purchase of oil on the route or other purchases concerned the vehicles, no law or the rule or the notification has been shown to me that S.R.T.C: District Office had any such authorisation. Nowhere also, the endorsement of the District Manager also has shown on the audit observation that such procedure was prevailing in the office to withhold the receipt of the Government money till the conductor bails are cleared. So, if the department witnesses of that office have in the evidence that such was the procedure. I am unable to agree and hold that all witnesses have given the obliging statements and acted in collusive conduct to, exonerate the accused from criminal liability when Nazar Muhammad Conductor had to deposit the Government money on the very day. I agree with Mr. Nabi Bux, Senior Clerk incharge of Audit that Government money is to be accounted every day. If Mr. Nazar Mohammad, assuming has deposited cash on 11th, after 2 days which the department witnesses otherwise admit and support Nazar Muhammad, the main question is when he deposited."

The above analysis would show that the objection raised by the clerk incharge of Audit section was from audit point of view. This theory is supported by noting on. Exh.2‑E which has been quoted above in extenso. But any irregularity from audit point of view would be an administrative problem to be rectified at the administrative level. If it is not rectified and allowed to prevail as a general practice among all the conductors how one of them could be trapped without any C previous warning to stop such a practice. It may be stated that in this case not even a show‑cause notice was served on the appellant to enable him to offer an explanation. Prosecution was ordered by the Head of the local administration right away. The next point which the learned Judge has discussed in his judgment is that the statements of the prosecution witnesses are to be rejected because "all the witnesses have given obliging statements and acted in collusive conduct to exonerate the accused from criminal liability." I see no justification to reach this conclusion. As a matter of fact all the witnesses have given incriminating statements against the appellant. It is only in cross-examination that this practice has been brought to light. Moreover, they were not declared hostile nor at any stage their version was belied by any other witness on behalf of the prosecution. In my opinion the ingredients of sections 405 and 409 remain unproved. The practice of depositing money even, after 4‑5 days is an established rule in the S.R.T.C. and no exception has been taken by any body at any time of such a practice. I would therefore, allow this appeal and set aside the conviction of the appellant. The bail bonds of the appellant stand discharged.

M. Y. H. Appeal allowed.

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