Find a Lawyer

Case No. 195 of 1984, decided on 22nd December, 1984.

‑‑‑S. 5‑‑Penal Code (XLV of 1860), S. 409‑‑Banking Companies Ordinance (LVII of 1962), S. 5‑‑Permanent Procedure (Instructions Circulars) Circular No. 227, dated 14‑10‑1963‑‑Misappropriation‑‑Mens rea‑‑Accused a Branch Manager of Bank, allegedly taking advance pay fraudulently through debit cash voucher without permission of any competent authority and appropriating same but after registration of case paying said money back‑‑Accused claiming to have no knowledge of Circular Instructions forbidding staff members to draw salary in advance‑‑Prosecution failing to prove conclusively that accused had knowledge of any such instructions and plea of prosecution about existence of mens rea in accused thus shaken‑‑Accused although negligent yet had no guilty conscience and his ignorance of existence of said instructions affording a valid ground to hold that he had no guilty intention when he withdrew advance salary for future months‑ Evidence available on record establishing that accused had informed Zonal Chief of Bank by an entry made in return called 'Statement of Daily Affairs' which further showed that accused had acted innocently and in good faith and he did not intend to cause wrongful loss to bank or wrongful gain to himself‑‑Fact that sum withdrawn was payable back to bank by means of small deductions from salary of future months also excluding existence of mens rea in accused‑‑Accused acquitted in circumstances.‑‑[Mens rea].

Hayat Muhammad v. The State 1983 S C M R 551 rel.

‑‑‑--S. 5‑‑Banking Companies Ordinance (LVII of 1962), S. 5‑‑Penal Code (XLV of 1860), S. 409‑‑Permanent Procedure (Instructions Circulars) Circular No. 227, dated 14‑10‑1963‑‑Bank employee‑ Instructions forbidding staff members to draw salary in advance‑‑Mere existence of instructions, held, would not connote awareness of their existence by an employee of‑bank.

‑‑‑S. 5‑‑Banking Companies Ordinance (LVII of 1962), S. 5‑‑Penal Code (XLV of 18601, S. 409‑‑Permanent Procedure (Instructions Circulars) Circular No. 227, dated 14‑10‑1963‑‑Bank employee‑ Instructions forbidding staff members to draw salary in advance‑‑Question whether accused had guilty conscience merely because he had not acted in accordance with a particular instruction, held, would arise only when it was proved that he had knowledge of such instruction and violation of it was intentional.

‑‑‑S. 5‑‑Banking Companies Ordinance (LVII of 1962), S. 5‑‑Penal Code (XLV of 1860), S. 409‑‑Permanent Procedure (Instructions Circulars) Circular No. 227, dated 14‑10‑1963‑‑Bank employee‑ Instructions that employee of a bank was not to withdraw any sum from bank as advance of his salary without permission of his higher authorities, held, was administrative in nature and did not constitute law so as to attract application of maxim 'Ignorance of law is no excuse' as said instruction was neither a provision of a statute nor having any statutory force nor falling under any banking practice so as to be considered to have acquired force of law.‑‑[Maxims].

F. B. Ali v. The State P L D 1975 S C 506 rel.

M. Nazir Sheikh for the Accused.

Raja Muhammad Yaqoob and Muhammad Amin Lone, Special Prosecutor for the State.

The allegation against the accused is that while posted as Manager, Shakrilla Branch of the United Bank Ltd., he without any authority vested in him and without any sanction from any higher authority, withdrew, by means of a debit cash voucner, dated 25‑5‑1978, a sum of Rs.15,000 from the funds of the bank as advance payment towards his salary and had thus misappropriated the said sum. The matter came to knowledge of Syed Talat Hussain, Senior Vice‑President, UBL, Gujrat on a report made by Zafar Iqbal Niazi, Controller UBL, Zonal Office, Gujrat to that effect, vide his letter, dated 7‑6‑1978 addressed to said Talat Hussain. In the said report, it was also alleged that entry of this withdrawal had been made in the bank record two days thereafter, on 27‑5‑1978. It was pertinently pointed out in the said report that accused was not at all authorized to withdraw this amount and he had thus committed criminal breach of trust of said sum. In consequence of the said report, said Talat Hussain wrote a letter, dated 11‑6‑1978 to the Superintendent of Police, Gujrat for registration of a case against the accused under section 409, P.P.C. He attached the letter containing the report of Zafar Hussain Niazi and photo‑copy of debit cash voucher alongwith his said letter undertaking therein to produce original as and when asked for. In his letter Syed Talat Hussain also gave out that the accused had neither been authorised nor was competent to withdraw the said sum on the basis of said debit cash voucher. On the basis of said letter of Talat Hussain, F.I.R. No, 95/78 was registered in Police Station Sara‑i‑Alamgir, Tehsil Kharian, District Gujrat on 16‑6‑1978. It appears that during the investigation it was found that the accused had deposited the said amount of Rs.15,000 in the Zonal Office/Main Branch, UBL, Gujrat by means of a deposit slip, dated 3‑7‑1978 photostat copy of which was taken into possession by Ashiq Hussain A.S.‑I. on 4‑7,‑1978 vide memo exhibited on record as Exh. P. B.

2. The charge against the accused was framed in the Court of Special Judge (Central), Lahore for offences under sections 409, P.P.C. and 5 of Act, II of 1947. However, offence under section 5 of Act, II of 1947 is not triable by this Court. I would not, therefore, deal with the said charge. The head of charge for offence under section 409, P.P.C. was to the effect that the accused while posted as Manager, UBL, Shakrilla Branch had fraudulently taken advance pay through debit cash voucher, dated 25‑5‑1978 without permission of any competent authority and had misappropriated the same but had after registration of the case paid back the said sum to the bank and had thus committed offence under section 409, P.P.C.

3. At the trial Raja Muhammad Siddiq who was Cashier on 25‑5‑1978 in Shakrilla Branch, United Bank Ltd. appeared as P.W.1 and deposed that the accused had taken advance from the said branch, vide debit cash vourcher EXh.P.1. He also stated that the accused did not produce any permission of the higher authorities before taking sum of Rs.15,000 from him. P.W. 2 Feroze Din Gunman of the Bank stated that he knew nothing about the occurrence. He was declared hostile but in cross examination, the prosecution could not elicit from him any answer favourable to the prosecution. His evidence is, therefore, of no consequence. P.W. 3 Ch. Muhammad Qasim, A.S.‑I., stated that he partly investigated the case and handed over the investigation to Ashiq Hussain on 4‑7‑1978. P.W. 4 Asghar Ali stated that on receipt of complaint Exh. P.A. He recorded the formal F.I.R. Exh. P.A./1 which is in his hand and is signed by him. Ashiq Hussain appeared as P.W. 5 and stated that on 4‑7‑1978 he was posted as A.S.‑I., P.S. Sara‑i -Alamgir and had partly investigated the case and on 4‑7‑1978 by means of memo. Exh. PB, he had taken into possession photostat copy of deposit receipt Exh. P.2, by virtue of which the accused had deposite back in the main branch of the UBL, Gujrat, the said sum of Rs.15,000 Syed Mat Hussain, Senior Vice‑President, UBL, Karachi appeared w P.W. 6. He stated that on 8‑6‑1978 while posted as Zonal Head, UB1 Gujrat, he had made complaint Exh. P.A. to S.P., Gujrat, which way; signed by him and had sent the inquiry report signed by Mr. Zafar Iqbal Niazi, Controller of the UBL, Zonal Office, Gujrat, alongwith the said complaint. He also stated that he had sent the photostat of debit cash voucher Exh. P. 1 also alongwith the complaint. He also deposed that the accused was Manager of UBL, Shakrilla Branch and he had withdrawn Rs.15,000 from the Bank unauthorisedly. In cross‑examination, he denied the suggestion that accused had disclosed the withdrawal of amount of Rs.15,000 in the daily statement sent by him to Zonal Office on 25‑5‑1978. He stated that he had not brought the said return with him. He also stated that he had not seen the payment register anti suspense register which remain in the Bank in this connection. He al‑o stated as another place that he did not remember if the amount in question had been included in payment register, suspense account ledger and statement of daily affairs. He further said that he did not know if the accused had made any entry regarding withdrawal of this amount in the said register or not. He also stated that during the days occurrence, there were no rules by which the working of the Bar was governed but departmental instructions were there, which he could produce in Court if so directed. The witness was directed to produce the above‑said instructions, which the said witness did on the next date of hearing. He produced book named Permanent Procedure Instructions Circulars. According to him the relevant circular was Circular No. 227, dated 14‑10‑1963 printed at page 35 of the said book, photostat of which was placed by him on record as Exh.PW6/1. This circular prohibits the receipt through withdrawal from the funds of the bank of advance of salary by any employee of the bank even for a month without sanction of competent authority of the bank. He stated that he did not know the aforesaid instructions at the time of alleged occurrence when he was Zonal Chief, United Bank Ltd., Gujrat. In further cross‑examination, he informed that Shakrilla Branch of UBL was opened before 1976, but he could not say if it existed in 1963 or not nor could refute the suggestion that it was opened in 1975. He contended that circulars are sent to every branch of the bank and also to the Zonal Chief direct. He, however, conceded that the edition of book containing said circulars was of 1979. He also stated that he did not know if the circulars were sent to the accused or not but volunteered that in routine accused is supposed to know the instructions contained in the circular in question. After this, evidence of the prosecution was closed.

4. Thereafter, statement of the accused under section 342, Cr.P.C. was recorded. He admitted that he was posted as Manager Shakrilla Branch and had withdrawn a sum of Rs.15,000 as advance vide voucher Exh.P.1 without permission. In Urdu record of his statement, the question put to him was whether it was correct that he had withdrawn a sum of Rs.15,000 as advance of his salary by virtue of voucher Exh. P.1 and he had not been able to produce any sanction (from his higher authorities) in that connection. His reply to this question was that it was correct. He had, however, denied that he had misappropriated the said sum and explained that he had withdrawn the said amount in accordance with law. He added that specific instructions of the Bank were not there to withdraw the amount. This sentence in his said statement in English record is not clear. In Urdu record he is shown to have stated that there were no definite instructions of the Bank in that connection. This Urdu version of his statement further shows that he had also stated that he had deposited the said sum back in the Bank. The accused also said that he did not want to produce any defence.

5. I heard arguments in this case on 27‑10‑1984 and 28‑10‑1984 and fixed the case for 31‑10‑1984 for announcement of the decision. However, on 31‑10‑1984 as per my order of even date, in exercise of my powers under section 540, Cr.P.C., I summoned the present Zonal Chief alongwith the return named Statement of Daily Affairs for 25‑5‑1978 and 27‑5‑1978 submitted by the accused to the Zonal Office. The reason for this was that plea of the accused in cross‑examination appeared to be that he had informed his higher authorities of his having withdrawn a sum of Rs.15,000 as advance of his salary for future months by including the same in the return called Statement of Daily Affairs submitted by him to that Zonal Office and Head Office, but although P.W. 6 Talat Hussain Zonal Chief denied the same, he had not produced the said return in the Court nor had looked into the payment register in which entry of said withdrawal is also made and, therefore, on that ground it appeared to me essential for the just decision of the case to verify the correctness of the said plea of the accused. Furthermore, since, some un exhibited documents available on the record of the case, namely, certified copy of the sheet of the token book for 27‑5‑1978 and copy of the sheet of paying cashier's book for 25‑5‑1978 showed an entry of withdrawal of said sum of money on 27‑5‑1978 and not on 25‑5‑1978 and there was also an allegation in the report attached to the complaint that the entry of withdrawal of said sum had been made in the Bank record two days thereafter, on 27‑5‑1978 and it appeared to be a suspicious matter, in order to get the matter clarified, I further found it essential, for the just decision of the case, to summon the original registers containing the said documents and also recalled P.W.1 Raja Muhammad Sadiq, who worked both as Token Clerk and Cashier at the relevant time in the said Branch and had in those capacities made entries both in the token book in respect of issuance of the token for the said debit cash voucher on 27‑5‑1978 and in the paying cashier's book in respect of payment by him to the accused of said sum on 27‑5‑1978. I also called Zafar Iqbal Niazi, Controller of Branches, who had in his report, dated 7‑6‑1978 pointed out that the payment of amount in question had been found entered in the record two days later on 27‑5‑1978.

6. The witnesses who appeared in response to summons were examined by me on 2‑12‑1984. Inayatullah Butt, Zonal Chief of the UBL, Gujrat, appeared as C.W.1. He also brought with him original Statements of Daily Affairs of two dates, namely, 25‑5‑1978 and 27‑5‑1978. I saw the original and returned the same and got true copies of the same exhibited on the record as C.W.1/1 and C.W.1/2. The sum of Rs.15,000 is not shown in the Statement of Daily Affairs, dated 25‑5‑1978 but it is shown in. that of 27‑5‑1978. The said witness conceded the existence of this entry in the said return but stated that there was no explanation in the said entry or in the said return, that it was the accused who had taken the advance of the salary nor there was any explanation in it as to why and to whom the said advance of money had been made and whether it was with authority of any officer competent to grant the advance or not. In cross‑examination, he stated that if money is paid to a customer or anybody else by the Bank after the counter hours, namely 9.00 a. m. to 1.00 p. m., the entry of the said withdrawal is made on the next working day in the books of the branch. He also stated the 26th May, 1978 was Friday and a public holiday. He further gave out in cross‑examination by the Special Prosecutor that the accused never made any application to the Zonal Office for grant of advance to him.

7. C.W. 2 Zafar Iqbal Niazi, the then Zonal Officer (who had made the report, dated 7‑6‑1978 Exh. P.A./2 in which he had stated that the entry of unauthorised withdrawal of a sum of Rs.15,000 by the accused on 25‑5‑1978 had been made in the record two days after the actual transaction) stated in his examination‑in‑chief that the transaction in respect of withdrawal of a sum of Rs.15,000 as advance salary was the first entry in the sheet relating to 27‑5‑1978 of paying cashier's book, copy of which was Exh. C.W. 2/1. He admitted in his cross examination that it was Friday on 26‑5‑1978 and on the sheet relating to 27‑5‑1978 of Token Book the entry in respect of the sum of Rs.15,000 was also the first entry. Raja Muhammad Sadiq, who was re‑examined, appeared as C.W. 3 and stated that the accused had drawn a sum of Rs.15,000 after counter hours on 25‑5‑1978 and for that reason he had entered the same in the registers of 27‑3‑1978 because 26th May, 1978 teas Friday and a public holiday.

8. I have re‑heard arguments in this case and gone through the entire record and have given my serious consideration to the entire evidence in the case.

9. On account of admission of the accused in his statement under section 342, Cr.P.C. that he had withdrawn a sum of Rs.15,000 as advance, vide voucher P.1 without sanction of higher authorities, it appears to me that the matter of withdrawal as per debit cash voucher Exh. P.1, without permission by the accused of a sum of Rs.15,000 as advance of his salary for future months stands established on record. The said debit cash voucher Exh. P.1 also shows that this sum was withdrawn by the accused as advance of his salary.

10. The accused had taken plea in his statement under section 342, Cr.P.C. that he had made withdrawal of said sum of money in accordance with law and had also added that there were no definite instructions of the Bank regarding the withdrawal of the sums by a Manager in connection with advance of his salary which he may wish to take.

11. As far the explanation of the accused that he had withdrawn the said sum in accordance with law, he had not produced any rule, regulation or instruction of the Bank, authorising him to withdraw in advance huge sum of money to the tune of Rs.15,000 which appears to me to be his salary for a number of months. P.W. 6 Syed Talat Hussain was not confronted with any such instruction. The accused himself never submitted the same either alongwith his statement under section 342, Cr.P.C. or in his defence which he had declined to offer. His learned counsel has also not been able to refer to any provision of law, rule or instruction authorising the accused to withdraw the said sum of money as advance of his salary for future months. I, therefore, find that the plea that in withdrawing the said amount, accused had acted in accordance with law is not made out.

12. As for the next plea that he had withdrawn the amount in question as there were no definite instructions at the relevant time in connection with withdrawal of sums by Manager of the Bank as advance towards his salary, I find that the Syed Talat Hussain had appeared as P.W. 1 and had stated that during the days of occurrence, there were departmental instructions of UBL, and on the next date of hearing, he had produced a copy of the relevant instruction as Exh. P.W. 6/1. It reads as below:‑

October 14, 1963.

Reference may kindly be made to our Ins. Circular No. 155 of 11th August, 1962, regarding the above subject.

We find that in spite of our clear instructions that no staff member should draw his salary in advance or take any advance against his salary for the following month, such advances are still being allowed at many of our branches. We desire that under no circumstances should this practice be allowed to continue. In very exceptional cases, however, advances may be drawn against salary after obtaining prior sanctions of the Head Office.

It is our intention that staff should not get into the habit of drawing frequently against his salary for the following month. In cases, however, of genuine requirements of staff, loans may be allowed on the merit of every case, adjustable in six months or one year by instalments, after such loans are sanctioned by the Head Office."

It stands established from this document that the said instruction was existing on 25‑5‑1978, the date when the said sum of Rs.15,000 had been withdrawn by the accused. Thus this other plea of the accused has also not been substantiated and on the other hand, appears to have been rebutted by the said documentary evidence.

13. However, in spite of negation of the said two pleas of .the accused and in spite of the fact that it stands established on record that the accused had withdrawn a sum or Rs.15,000 as advance salary of future months unauthorisedly without sanction from any competent authority, in my view the question still remains whether in withdrawing the said sum of Rs.15,000 over which he had dominion as Manager of the Bank, he had, in terms of section 405, P.R.C. done so dishonestly in the sense in which the said word has been defined in section 24, P.P.C. that is to say, with the intention of causing wrongful loss to the Bank and wrongful gain to himself, or in other words had the accused any mens rea (criminal intent) in withdrawing the said sum of money from the bank funds as advance, towards salary for future months It is on the answer to this question that the fate of this case hangs.

14. The first circumstance to be reckoned with in that connection is the suspicion which lurked in my mind why the entry of withdrawal of said sum on 25‑5‑1978 had been made in token book and paying cashier's book on 27‑5‑1978. Certain words in the debit cash voucher, dated 25‑5‑1978 appeared to have been deleted and made undecipherable by drawing lines of cancellation over them and on one side of those the words 'Suspense Account' had been written and on the other side words 'Advance Salary'. This circumstance read with the entry of the said withdrawal on 27‑5‑1978 in books of the bank gave an impression that perhaps the sum had originally been withdrawn by the accused unauthorisedly to meet his needs by showing on 25‑5‑1978 some other basis for the said withdrawal but later on, on 27‑5‑1978 in order to cover the said criminal act, words 'suspense account' and 'advance salary' were written to avoid detection and penal consequences. Zafar Iqbal Niazi, who had pointed out the same in his report Exh. P.A./2, however, failed to suggest in his said report what those defaced words in the debit cash voucher could be. None of the prosecution witnesses said anything in that regard. Further Raja Muhammad Sadiq, the then Cashier stated that accused had got cash on the basis of the said cash debit voucher on 25‑5‑1978 after the counter hours and he and other witnesses had explained that entries of transactions, which take place after counter hours, are made in token book and paying cashier's book on the next working day. Since 26‑5‑1978 was a holiday it is clear that entries of the said withdrawal had rightly been made on 27‑5‑1978 in the Token Book and Paying Cashier's Book and there was nothing fishy in them. My suspicion in respect of any chicanery on the part of accused, therefore, stands allayed.

15. The next circumstance to be considered in that regard is whether the accused was aware of existence of instruction forbidding him to withdraw the said sum of Rs.15,000 as advance towards his salary without permission of higher authorities. Instruction may be there forbidding withdrawal by a Bank employee of any money as advance of his salary without permission of his superior authorities but the mere existence of such instructions does not, in my opinion, connote awareness of their existence by an employee of a Bank. The accused had stated in his statement under section 342, Cr.P.C. that there was no definite instruction in that regard by the Bank. From this statement of his, it appears that he was not aware of the instruction that he had to get permission from the higher authorities to draw money from the Bank as advance of his pay and the impression in his mind was that he could withdraw advance salary without permission of higher authorities. In evidence on record too, no witness stated that any such instruction had been sent to and was available in Shakrilla Branch of the Bank to fasten the accused with knowledge of the same. Even P.W. 6 Talat Hussain, Zonal Chief had not been able to establish conclusively that the accused had knowledge of the said instruction. According to him the circular letter comprising the said instruction was of the year 1963 but the book containing the said circular letter was published in 1978 while Shakrilla Branch of the Bank had been opened sometimes before the year 1976. There is nothing on record to show that the said book was sent to the said Branch of the Bank at the time when the said branch was opened sometimes before 1976 or even thereafter. It is true that the said witness stated in cross‑examination that circular letters are sent to every branch of the Bank but he did not state that the said instructional circular of the year 1963 had been sent to Shakrilla Branch of the Bank when it was opened before the year, 1976. To add to it, the said witness conceded that he did not know if circulars were actually sent to the accused or not. It is true that the said witness had voluntarily said further that in routine the accused is supposed to know the instructions contained in the circular letter in question but there is an element of conjecture and surmise in this assertion and on the basis of it, it cannot be said that it stood conclusively proved that accused had knowledge of the said instruction. On this evidence, therefore, there is no escape from the conclusion that the accused had no knowledge of the said circular letter and the said instruction contained therein.

16. The question whether the accused had guilty conscience merely because he had not acted in accordance with a particular instruction, in my opinion arises only when it is proved that he had knowledge of the said instruction and the violation of it was intentional. Lack of conclusive proof by the prosecution in this case that accused had knowledge of the said instruction has taken away the very basis of prosecution plea of existence of mens rea in the accused while withdrawing the said sum from the Bank.

17. I am fortified in this view of mine by the observations made by their Lordships of the Supreme Court in Hayat Muhammad v. The State 1983 S C M R 551. In that case, payment of a sum of Rs.1,08,250, cost of 35 jerseys, supplied to Punjab Police was paid to Zubair A. Hameedi, representative of Messrs Valika Woollen Mills Ltd., Karachi, in contravention of the express instruction of the said Mills contained in their letter that the said sum be sent to them directly through cross‑cheque. Zubair A. Hameedi did not pay the said sum to the said Mills and misappropriated it. The said letter of the said Mills was kept in a file which was recovered from the custody of Bashir Ahmed, one of the accused in that case. The crux of the allegation against the said accused was that the said letter was deliberately suppressed by him and he and other accused had conspired together and joined hands with Zubair A. Hameedi for misappropriation of the said amount. Their Lordships of the Supreme Court had, so far as said Bashir Ahmad is concerned, held that merely because the said letter was recovered from a file which was in the custody of the said accused did not necessarily lead to the conclusion that he was aware of the contents of the said letter and although he might have been negligent, he did not appear to have done so with any criminal intention. Their Lordships did not find any conspiracy and further observed that they were of the view that guilty conscience or mens rea was completely lacking in that case. Respectfully following the said observation of their Lordships of the Supreme Court, I hold that although the accused was extremely negligent (because with a little effort, he could have found out the correct position), he had no guilty conscience when he had withdrawn advance salary to the extent of Rs.15,000 as he had no knowledge of the existence of said instruction on the day when he withdrew the said money as advance of his salary for future months.

18. I am aware of the well‑known maxim that ignorance of law is no excuse. I am also aware that in Hayat Muhammad's case (supra), ignorance on the part of the accused was of factual matter namely contents of the letter while in the present case, the ignorance on the part of the accused is one in regard to an instruction issued by the Head Office of the Bank. However, in my opinion, the instruction that an employee of a Bank is not to withdraw any sum from the Bank as advance of his salary without permission of his higher authorities does not constitute law so as to attract the application of the said maxim. The said instruction is obviously not a provision of any statute. It does not appear to have been issued under any such provision of a statute and cannot be considered to have any statutory force. It was laid down in F.B. Ali v. The State P L D 1975 S C 506 that the law in its generally accepted connotation is positive law, that is to say the formal pronouncement of the will of a competent law‑giver. The said instruction is clearly not law in that sense. It does not appear to fall under any banking practice too so as to be considered to have acquired the force of law. Any banking practice must have some nexus with the business of banking itself. In section 5 of the Banking Companies Ordinance, 1962, the word banking has been defined to mean, accepting for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise and with drawable by cheque, draft, order or otherwise. The forms of business enumerated in section 7 of the said Ordinance in which a banking company may engage are on the basis of the very wording of the said section, businesses in addition to the business of banking. Therefore, the real and basic business of a Bank remains to be banking as defined above. A banking practice, therefore, must partake of matters relating to the abovementioned definition of banking. However, instead of dealing with banking as defined, the said instruction deals with a matter concerning pay and salary of the staff. The instruction that any employee of a Bank cannot withdraw from the Bank any sum by way of advance of his salary for future months does not, therefore, constitute banking practice and does not have the force of law. It is at best an administrative instruction and cannot be equated with 'law' so as to attract the maxim that ignorance of law is no excuse. Ignorance of the existence of the said instruction is, therefore, a valid ground in this case to hold that the accused had no mens rea when he withdrew the said sum by way of advance of his salary for future months.

19. Furthermore, evidence has come on record establishing that accused had informed the Zonal Chief by an entry made in the return named 'Statement of Daily Affairs' submitted by him on 27‑5‑1978 that a sum of Rs.15,000 had been withdrawn from the Bank as advance towards salary etc. which further shows that the accused had no guilty conscience while withdrawing the said sum from the Bank. He did not intend to cause wrongful loss to the Bank or wrongful gain to himself, as on the view which he held at that time it was not wrong on his part H to have withdrawn the said sum towards advance of his salary which was payable back to the Bank by means of small deductions from his salary of future months. It is true that the accused had not specified in the said Statement of Daily Affairs that it was he who had withdrawn it and that he had not got any prior permission from any higher authority for the same but the fact remains that he gave information to his higher authorities that a sum of Rs.15,000 had been withdrawn from the Bank as advance towards salary. In this state of affairs, it was for the Bank authorities to enquire, if they so wished, as to how and to whom the said sum had been advanced. If they did not do so, their said default would neither disprove the fact that the accused had given information of the said withdrawal to the higher authorities nor would rob the said circumstance of its natural consequence namely the absence of any criminal intention on the part of the accused. If the accused had any criminal intention in withdrawing the said sum, he would not have taken the hazard of giving that information to his Zonal Chief in the 'Statement of Daily Affairs', dated 27‑5‑1978. The fact that he gave information of the said withdrawal to his higher authorities shows that while withdrawing the said sum of money he had I acted altogether innocently and in good faith and had absolutely no guilty intention in that regard.

20. In my opinion, therefore, the prosecution has failed to prove that the act of the accused in withdrawing the said sum of money as advance towards his salary was accompanied by any mens rea. Furthermore, the proved circumstance of the accused having informed his higher authorities in respect of withdrawal from the Bank of said sum of money as advance of his salary for future months has positively excluded the existence of any mens rea on the part of the accused while withdrawing the said sum from the Bank.

21. For the foregoing reasons, I acquit the accused of the charge for the scheduled offence under section 409, P.P.C. He is already on bail. His bail bond stands discharged.

M.Y.H. Accused acquitted.

Find a Lawyer Near You

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