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Criminal Appeal No.196 of 1986, decided on 8th March, 1987.

---S.6--Penal Code (XLV of 1860), S.408--Criminal breach of trust- Accused, cashier in bank charged for embezzlement--Evidence on record clearly establishing guilt of accused--Fact that accused was giver relevant key as a Receiving Cashier during period in question admitted by him and fact that he had received amount proved by evidence- Conviction maintained.

--S.6--Penal Code (XLV of 1860), S.408--Jurisdiction--Investiga tion--Investigation of a case by an agency who was not empowered to investigate case, held, would not affect jurisdiction of Court and trial of the case--Irregularity in conduct of investigation would not affect either jurisdiction of Court or mode of trial.--[Jurisdiction].

Dost Muhammad v. Government of Baluchistan and 3 others PLD 1980 Quetta 1 ref.

Hizballah v. The State P L D 1984 Quetta 1 rel.

---S.6--Penal Code (XLV of 1860), S.408--Temporary embezzlement- Sentence--Accused depositing amounts in accounts of Account-holders on various dates and only a part of misappropriated amount left to be paid by him--Said amounts were not credited by him for a temporary period--Trial Court not awarding sentence of fine in proportion to gravity of offence--Sentence reduced.

---S.6--Penal Code (XLV of 1860), S.408--Sentence of fine--Provisions of subsections (3) & 4 of S.6 of Ordinance IX of 1984, held, were to be read jointly and actual loss would be primary conservation for imposing sentence of fine--Criterion would be actual amount to be paid to bank as compensation for loss caused to it by an accused person--Amount which had already been deposited in bank could not be considered for imposing sentence of fine.

Raja Shamsuzzaman for Appellant.

Syed Murtaza Hussain for the State.

Date of hearing: 17th February, 1987.

.--The appellant has been convicted under section 408, PPC by the Presiding Officer Special Court (Offences in Banks) and sentenced to suffer R.I. for four years and to pay a fine of Rs.6,00,000/- (rupees six lacs only) and in default of payment of fine to suffer R.I. for one year more. It was further ordered that in case the fine is recovered Rs.62,000/ out of this amount be paid to the City Bank by way of compensation for the actual loss sustained by it. The appellant was charged on the allegation that in December 1985 and January 1986 while working as a Cashier in the City Bank I.I. Chundrigar Road Branch Karachi he received Rs.2,77,902/44 from three account-holders but failed to deposit the said amount in their respective accounts on the dates when they , were received by him and thus he committed criminal breach of trust in respect of the said amounts between 1-12-1985 and 1-1-1986.

2. The facts in brief are that the appellant was working as cashier since 1984. The appellant was allotted Key No.10 on the following datse; vide Ex.2/A.

From 5-11-1984 till 13-3-1985

From 31-7-1985 till 14-9=1985

From 2-10-1985 till 8-1-1986

On 14-1-1986 Mr. Shaikh Idrees the account-holder complained that he deposited rupees one lac in his account on 1-12-1985 but the said amount was not credited in his account. Photostat copy of the deposit is Ex.2/B. It was discovered that the amount was received by the appellant on 1-12-1985 as he was using Key No.10. The statement of account of Shaikh Idrees Saleem is Ex.8/C, which does not show credit in respect of Ex.2/B. On 14-1-1986 some one had deposited rupees one lac in the account of Shaikh Idrees Saleem vide Ex.2/D. The account-holder was contacted but he repelled that he had not deposited the amount.

On 14-1-1986 a complaint was made by M/s. Mullar and Phipps account-holder that they had deposited Rs.32,975.89 in their account on 18-12-1985 in cash and Rs.46,746.13 on 19-12-1985 in cash and Rs.48,179.42 on 24-12-1985 in their accounts but these amounts were not credited in their accounts. They produced photo copies of the deposit slips as Exs.2/E, 2/E-1 and 2/E-2. These three slips show that the amount was received by the accused who was using the test Key No.10 on these dates. The statement of account Ex.2/F showed that the following amounts were deposited in their account as under: -

Rs.32,978/89 on 19-12-1985

Rs.32,976/E9 on 22-12-1985

Rs.48,172/42 on 1-1-1985

The account-holders were asked regarding above deposits but they denied having deposited these amounts by three pay-in-slips in question. Ex.2/G, 2/G-1 and 2/G-2.

Thereafter in January, 1984 Mr. Boman Botwala another account-holder complained that he had deposited Rs.50,000/- in his account on 1-1-1986 but the same not credited in his account. His statement of account is Ex.2/H. The appellant was called by P.W.1 Muhammad Yaqoob Shaikh, Manager City Bank and he admitted his guilt. The report was lodged with the police. After usual investigation the accused was sent up to face his trial. The accused did not plead guilty to the charge.

3. At the trial the prosecution examined P.W.1 Muhammad Yaqoob Shaikh, the then Manager of the City Bank, P.W.2 Syed Nadir Ali who was working as Account Clerk with M/s. Mullar and Phipps Pakistan, P.W.3 Tariq Ahmad who was Head of Cash Department in City Bank since August 1984 and P.W.4 Abdul Ghafoor, Assistant Sub-Inspector who investigated the case. After the close of the prosecution the accused was examined under section 342, Cr.P.C. He has admitted that he was given Key No.10 as a Receiving Cashier for the periods mentioned by P.W.1 in his deposition but he has denied the receipt of the amount in question. He has admitted that he gave statement Ex.2/ K-1 but his explanation was that in spite of the fact that he expressed complete ignorance about the pay-in-slips but they gave him show-cause notice and did not allow him even to read it and dictated to him a reply and compelled him to write in his own handwriting and sign the same which he did which is Ex.2/K-1. They further told him that if he gave reply as mentioned in Ex.2/K-1 no action will be taken against him when the inquiry in question will be filed and therefore he wrote Ex.2/K-1 as dictated to him by Mr. Gul Niazi a bank official in the presence of P.W.1 and P.W.3. He has admitted his initials on Ex.2/A in token of the receipt cf the test Key for these dates. He did not lead any defence. The learned trial Judge accepted the prosecution case, disbelieved the statement of the appellant and convicted him as stated above.

4. In order to bring home the charge the prosecution mainly relied on the statements of P.W.1 Muhammad Yaqoob Shaikh, P.W.2 Syed Nadir Ali and P.W.3 Tariq Ahmad.

P.W.1 Muhammad Yaqoob was working as Manager and he has corroborated the contents of the first information report and has categorically stated that the appellant had received the amount. He has further stated that the Key No.10 was allotted to the appellant. According to this witness the accused was confronted with the photo copies of the pay-in-slops Exs.2/B and 2/E on which accused admitted this guilt but stated that both the amounts have been deposited with shortfall of Rs.13,000/-. He admitted that he had received Rs.50,000/ on 1-1-1986 from Mr. Boman Botwala and voluntarily produced original pay-in-slip of the said amount and stated that he has not deposited this amount in the account of Mr. Boman Botawala. Show Cause Notice Ex.2/K waS given to the accused and he gave his reply as Ex.2/K-1 in which he admitted his guilt. The learned trial Judge did not use Ex.2/K-1 against the appellant on the ground that the accused has given this reply as he was assured that no notice will be taken against him and consequently no report was lodged with the police against him till July 1986 which confirms his assertion that Ex.2/ 1, 1 was executed by him on the assurance that no action will be taken against him.

P.W.2 Syed Nadir Ali has stated that he had seen the accused receiving cash at the counter of City Bank and he had deposited the amounts of Rs:32,976.89, fts.46,746.13 and Rs.48,179.42 by pay-in-slip as Exs.3/A, 3/A-1 and 3/A-2 respectively but after the lapse of nearly 18 months he could not identify the accused as a person to whom he paid these amounts. These amounts were not credited in the accounts of M/s. Mullar and Phipps Company.

P.W.3 Tariq Ahmad has corroborated the statement of P.W.1. Thus the evidence on record fully establishes that Key No.10 was delivered to the appellant when he was working as a cashier during these days and he has admitted these facts. On the basis of the evidence of the P.Ws. it is also established that the appellant had received the amounts. He has admitted his guilt before P. W.1. Though the learned trial Judge has disbelieved his admission in writing but before he gave his admission in writing he also admitted his guilt as stated by P.W.1. Irrespective of these facts the evidence on record clearly establishes the guilt of the appellant.

5. Learned counsel for the appellant has submitted that the investigation could only be done by the FIA but in the present case investigation has been conducted by the police therefore the trial of the appellant is bad in law. He has referred to the case of Mr. Dost Muhammad v. Government of Baluchistan and 3 others P L D 1.980 Quetta 1 but the facts are distinguishable and do not apply to the facts of the present case. The investigation of a case by an agency who is not empowered to investigate the case does not affect the jurisdiction of the Court and the trial of the case. Learned counsel for the appellant has failed to point out any illegality or irregularity in the trial. The learned trial Court had the jurisdiction in the matter and it took cognizance of the case. The witnesses were examined in his presence and after assessment of the entire evidence the appellant was rightly convicted. Therefore if there was any irregularity in the conduct of the investigation that does not affect either the jurisdiction of the Court or the mode of trial. We therefore see no, substance in this contention. We may refer to Hizballah v. The State P L D 1984 Quetta 1.

6. The learned counsel next submitted that the appellant had deposited the amount and only Rs.62,000/- had not been deposited by him. The amounts had been deposited in-the accounts of account holders on various dates but the sentence of imprisonment and fine are not in proportion to the offence committed by the appellant. The report was lodged on 2-8-1986, the appellant was arrested on the same day and conviction was recorded on 30-9-1986. He is in the custody since the date of arrest. The allegation against the appellant was that he had misappropriated Rs.2,77,902.44 and as per requirement of law the Court was bound to impose a sentence and fine not less than twice the amount, but in the present case the amounts have been deposited in the accounts of the account-holders subsequently on different dates and thus only Rs.62,000/- had not bee deposited. Rs.32,976.89 were deposited on 19-12-1985, again fts.32,976.89 were deposited on 22-12-1985 and Rs.48,179.42 were deposited on 1-1-1986 and Rs.50,000/- were also deposited on 1-1-1986. These amounts were not credited by the appellant for a temporary period. Therefore the conviction was proper but in the circumstances of the case we consider that the sentence of fine was not passed in proportion of the gravity of the offence. Section 6(3) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance No. IX of 1984) provides that where a Special Court asses a sentence of fine, whether in addition to any other punishment or not, the amount of such file shall be fixed by it having regard to the gravity of the offence for; which the accused person is convicted and, where the Special Court finds the offence to have been committed in respect of a specified amount, shall not be less than twice the said amount. Section 6(4) further provides that where a Special Court passes a sentence of fine, the Court shall order the whole or any part of the fine recovered to be applied in the payment to the bank in respect of which the offence was committed as compensation for the loss caused to it by the offence. The two provisions are to be read jointly and the actual loss is the primary consideration for imposing a sentence of fine. Temporary embezzlement or breach of trust may be considered for conviction but for imposing a sentence of fine that amount cannot be considered for imposing sentence of fine. The criterion would be the actual amount to be paid to the bank as compensation for the loss caused to it by an accused person. As such the amount which had already been deposited in bank cannot be considered for imposing a sentence of fine, as required under section 6(4) of the Ordnance. In the instant case Rs.62,000/- has not been deposited by the appellant. This amount was the actual loss caused to the bank. Therefore we hold that amount of fine should have been imposed in respect of this amount. Consequently while reducing the substantive sentence to one already undergone, the fine is reduced to Rs.1,25,000/-in default of payment of fine the appellant would suffer R.I. for mix months more. The fine if recovered, Rs.62,000/- be paid to the bank for the actual loss sustained by it as directed by the Court. With this modification the appeal is dismissed.

M.Y.H./M-170/K Appeal dismissed.

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