Find a Lawyer

Criminal Appeal No.18 of 1981, decided on 7th December, 1985.

‑‑‑Ss. 409, 468 & 471‑‑Forgery and using forged documents as genuine believing them to be forged‑‑Accused charged for offences of forgery and misappropriation‑‑Trial Court finding that charge of embezzlement against accused had not been proved, held, him guilty of forgery, evicted and sentenced him Allegation convicted that accused committed forgery for purpose of cheating and had fraudulently or dishonestly used cheques believing them to be forged not proved‑‑Accused neither as genuine bell having any intention nor actually doing so to embezzle amount of cheques nor obtained any undue advantage therefrom‑‑Signatures of officer, drawing and disbursing amount, allegedly forged by accused, cheques no dissimilarity with his specimen signatures‑‑Allegation that cheques were obtained from Office of Comptroller Audit and Accounts without any supporting bills also not proved‑‑Held, since acquittal of accused under S.409, Penal Code, was not challenged in appeal by State, acquittal of accused from charge of embezzlement would automatically prove that he had neither committed forgery for purpose of cheating nor had fraudulently used cheques believing them to be forged Prosecution failing to bring home guilt of accused under S‑ 468/471, Penal Code, and trial Judge failing to appreciate that' offence under said two charges could neither be pressed nor proved against accused‑‑Accused after his acquittal under S.409, Penal Code, held, could not be convicted under Ss.468 & 471, Penal Code, because prosecution failed to produce any evidence to show intention of accused about cheating and ,fraudulently using cheques for any ulterior purpose‑ Conviction and sentence set aside in circumstances.

M. Muqim Ansari for Appellant.

Muhammad Nawaz Ahmed for the State.

Date of hearing: 7th December, 1985.

Appellant Muhammad Anwar was Cashier in the Office of the Deputy Director, Local Government, Quetta Division, Quetta in the year 1976. On 8th September, 1977 the Deputy Director wrote a letter to the Director, Local Government, Baluchistan, Quetta informing the latter that it had transpired during audit that the appellant had received two cheques on 12‑3‑1976 and 1‑6‑1976 for Rs.10,000 and Rs.15,000 respectively and had cashed them on 16‑3‑1976 and 2‑6‑1976 respectively, and necessary inquiries made in the matter revealed that the record of the office was totally silent on the subject as no bill had been prepared and submitted to the Comptroller Baluchistan for these amounts. 1t was further mentioned in the said letter that there were no entries of these amounts either in the Cash Book or in any other Accounts Register and it appeared that the appellant had embezzled the said two amounts. On the basis of this report an F.I.R. No. 11/77 was recorded in the Police ' Station Anti‑Corruption Establishment, Quetta on 19‑9‑1977 and investigation was started. During investigation it transpired that the appellant had' also received another cheque for Rs.7,500 on 19‑1‑1976 and had also misappropriate the amount of that cheque as well. The appellant was sent up for trial before the Special Judge Anti‑Corruption for forgery and misappropriation. The trial Judge charged the appellant for offences under sections 468, 471 and 409, P.P.C. read with section 5(2) of the prevention of Corruption Act. The appellant pleaded not guilty and claimed trial. The State produced 9 witnesses in support of the prosecution story. Sanction for prosecution was also accorded on 26‑4‑1979. The prosecution evidence recorded in the case showed that the three cheques in question, Exhs.P/2, P/3 and P/4, were duly issued by the Office of Comptroller Baluchistan Quetta. They were allegedly signed by the Deputy Director, Local Government and the amounts were received by the appellant. There was no evidence led by the prosecution to prove that no bills were submitted to the Office of the: Comptroller regarding these amounts. It is also common knowledge the cheques are issued from the Office of the Comptroller against bills, submitted to that office. It, therefore, could not be alleged that the said three cheques had been issued without any bills. It was also not proved that the appellant had misappropriated or embezzled the amounts' of the said three cheques. The only evidence which came on record was that the Deputy Director, P.W.2, Abdur Rehman, had denied his signature on the three cheques. It was alleged by him that his signature thereon had been forged. Specimen handwriting and signatures of the Deputy Director and the appellant were taken and were examined P.W.9, Ghulam Abbas, Handwriting Expert. According to his examination and opinion the disputed signatures on the cheques were not in the hand writing of P.W.2 Abdur Rehman. The appellant in his state under section 342, Cr.P.C. admitted that he was Cashier during the period in question and it was his duty to obtain cheques from Officer of Comptroller Baluchistan, to encash them and then to disperse the amounts but he denied that he had committed any forgery or embezzlement.

The learned trial Judge found that the charge of embezzlement against the appellant had not been proved but he held him guilty of forgery so he vide judgment, dated 20‑9‑1981 convicted the appellant section the 468/471, P.P.C. and sentenced him to undergo S.I. for years and to pay a fine of Rs.32,250 and S.I. for two years respectively and acquitted him of the charge under section 409, P.P.C. Hence the present appeal.

3. I have heard learned counsel for the parties at length and have also minutely gone through the record of the case. It is admitted in the prosecution evidence that the cheques in question were validly issued by the Comptroller Baluchistan against bills presented in that office. It was also not proved that the appellant had embezzled or misappropriated the amounts of the said cheques. The only question which required determination was whether the appellant had committed any forgery and for what purpose. Section 468 pertains to the offence of forgery for the purpose of cheating. It was alleged that the appellant had committed forgery but it was not proved that he had committed forgery for the purpose of cheating. Actually charge of cheating had not been proved against the appellant. As such the charge under section 468, P.P.C. could not be levelled and pressed against the appellant. Similarly, the offence under section 471, P.P.C. pertains to using as genuine a forged document. It was also not proved against the appellant that he had fraudulently or dishonestly used the said three cheques as genuine believing them to be forged. He had not embezzled the amounts of the said cheques. He had also not obtained any other advantage in connection with the said cheques. It could not, therefore, be alleged that he had fraudulently or dishonestly used the cheques believing them to be forged.

4. I have not been able to understand as to why the appellant should forge the signatures of the Deputy Director when he had no intention to misappropriate the amounts of the cheques. I have myself compared the signatures of the Deputy Director on the cheques with his specimen signatures and his ordinary signatures and I have not been able to find any dis‑similarity in any signature. The opinion of the Handwriting Expert has not impressed me for the simple reason that the appellant did not derive any undue advantage from the cheques and so it does not appeal to reason that he should forge the signatures of the Drawing and Dispersing Officer. It would have been a different matter if the prosecution could prove that the amounts of the cheques in question had been misappropriated by' the appellant. In that event it could be reasonably believed that the appellant might have forged the signatures of the Drawing and Dispersing Officer. When the appellant had no intention to, and he actually did not, misappropriate the amounts of the three cheques, he definitely had no intention to forge the signatures of Drawing and Dispersing Officer. It was also not proved that the cheques were obtained from the office of Comptroller without any supporting bills.

5. The State, had, therefore, failed to prove the charge under section 468/471, P.P.C. the acquittal of the appellant under section 409, P.P.C. has also not been challenged in any appeal filed by the State. The acquittal of the appellant from the charge under section 409, P.P.C. would automatically prove that the appellant had neither committed forgery for the purpose of cheating nor had fraudulently used the cheques 'believing them to be forged. The State had failed to bring home the guilt of the appellant under section 468/471, P.P.C The learned trial Judge failed to appreciate that the offence under the aforesaid two charges could neither be pressed nor was it proved against the appellant. Actually after his acquittal under section 409 P.P.C the appellant could not be convicted under section 468/471. P.P.C. because the State had failed to produce any evidence to show the intention of the appellant about cheating and fraudulently using the cheques for any ulterior purpose. I would, therefore, accept this appeal, set aside the impugned judgment and would acquit the appellant of the offences under section 468/471, P.P.C. He is on bail, his bail bonds are also discharged.

M.Y.H. Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.