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Criminal Appeals Nos. 12 and 13 of 1986, decided on 19th May, 1986.

‑‑‑S. 408/471/109‑‑Evidence, appreciation of‑‑Admittedly cheque book issued by accused to account‑holder, on basis of requisition slip, purporting to have been signed by him and after taking all precautions‑ No direct evidence produced to establish that accused forged signatures of account‑holder on requisition slip or cheques in dispute‑‑Payment under forged cheques admittedly received by co‑accused‑‑Accused not convicted on principal charge but for abetment yet no evidence to prove complicity between accused and co‑accused brought on record‑ Conviction and sentence set aside, in circumstances.

Usman Ghani Rashid for Appellant.

Anwar Mansoor Khan and Abdul Sattar Pingar for the State.

Date of hearing: 13th May, 1986.

The appellant is being aggrieved against the judgment dated 30‑1‑1986 passed by the Presiding Officer Special Court of Sind (Banks) in Criminal Case No. 242 of 1984 and 243 of 1984 and preferred two appeals which are being disposed of by the common judgment as the facts and the evidence in both the cases are similar.

2. The appellant has been convicted by the separate judgments under section 408/109, P.P.C. and under section 471/109, P,P.C and was sentenced to suffer R .I. for two years on both the counts and to pay fine of Rs.40,000 in default of payment of fine to suffer R.I. for six months, in Case No. 242 of 1984.

In Case No. 243 of 1984 he was convicted under section 408/109 and under section 471/109, P.P.C. and was sentenced to suffer R.I. for two years and to pay fine of Rs.1,25,000 in default of payment of fine to suffer R.I. for six months.

3. The first information report Exh. 13/A in Case No. 242 of 1984 and Exh.10‑A in Case No. 243 of 1984 was lodged by Mr. Shahid Raza, Manager, United Bank Limited wherein he has stated that on 13‑5‑1981 at about 10‑30 a.m. Mr. Habibullah holder of Account No. CD 802 complained that two cheques bearing No. 382002 for Rs.20,000 and No.382005 for Rs.5,000 have been encashed from his account on 10‑5‑1981 respectively and these cheques were not issued by him. On enquiry it was revealed that on 10‑5‑1981 a new cheque book bearing Nos. 382001 to 382025 has been issued to him on presentation of requisition duly signed by him which Mr. Habibullah has denied in his complainant that he has not signed such requisition. Further, it was revealed that a bearer Cheque No. 382002 for Rs.20,000 has been encashed on 10‑5‑1981 and payment has been received by Mr. Jaweed and again on 11‑5‑1981 another bearer Cheque No. 382005 for Rs.55,000 was presented on the counter and the payment has been received by Mr. Rasheed. It appears that the bank has been defrauded to the amount of Rs.75,000 by some culprit by getting issued a cheque book with the similar signature of Mr. Habibullah.

After usual investigation the accused were sent up for trial. Charge was framed by the learned trial Judge which reads as under:‑--

"That you accused Tariq Saleem was an Officer in the C D Department of Garhikhata, Station Road Branch of the United Bank Ltd. on 10th May, 1981, when you hatched a plan to defraud the said bank by withdrawing the amount from account of one Mr. Habibullah and in pursuance of the said plan hatched by you and in furtherance of the said intention, you issued Cheque Book bearing Nos. 382001 to 382025 on requisition purporting to have been made by the account‑holder, which requsition was denied by the said account‑holder and used Cheque No. 382002 from the said Cheque Book for withdrawing of Rs.20,000 and realized the said amount and misappropriated the same with the active help and connivance of co‑accused Ishrat Ali, Irfan, Rasheed Ahmad, Abid Butt and Shabbir Ahmad and thus you accused Tariq Saleem have committed offences punishable under sections 408, 468, 471 and 477‑A, P.P.C. within my cognizance.

That you accused Irfan Ali, Ishrat Ali, Shabbir Ahmad, S. Zafar Abbas, Abid Butt and Rasheed Ahmad abetted accused Tariq Saleem in commission of the said offences and, therefore, you accused persons have committed offences punishable under sections 408, 468/471 and 477‑A, P.P.C, read with section 109, P.P.C. within my cognizance.

Therefore, I hereby direct that you all the accused persons be tried by this Court on the aforesaid charges."

4. In Criminal Appeal No. 12 of 1986 Rehmat Shah, Syed Rashid Raza, Tariq Jamil, Najmi Shahnaz, Tahsin Raza, Muhammad Ali, Habibullah, Jamma, Allah Bachaio, Muhammad Hanif, Shamsuddin, A. Karim Rasool Bux and Abdul Ghafoor were examined as prosecution witnesses.

In Criminal Appeal No. 13 of 1986 Rehmat Shah, Syed Shahid Raza, Najmi Shehnaz, Malik Shafiq, Syed Mahmood Ali, Abdul Rasheed Khan, Habibullah, Allah Bachaio, Shamsuddin and Abdul Ghafoor were examined as prosecution witnesses.

The evidence of P.Ws. Tariq Jamil, Najmi Shahnaz, Tahseen Raza, Muhammad Ali and Habibullah are material as the evidence of these witnesses are relevant for the disposal of these appeals.

In Criminal Appeal No. 13 of 1986 the evidence of Malik Shafiq in addition to the evidence of the witnesses named above is worthy of consideration.

P.W.7 Jamma in Criminal Appeal No. 12 and P.W. Abdul Rasheed in Criminal Appeal No. 13 of 1986 are the Mashirs of identification of Zafar Abbas and Rasheed respectively. P. W. Allah Bachaio is Mukhtiarkar who conducted the identification in respect of accused Rasheed Ahmad. P.W Muhammad Hanif was declared hostile. P.W.10 Shamsuddin recorded judicial confession of Zafar Abbas and P.W.11 Abdul Karim, Special Magistrate recorded judicial confession of accused Rasheed Ahmad P.W.Shamsuddin in Criminal Appeal No. 13 of 1986 recorded judicial confession of Irfan Ali. The present appellant was tried alongwith Zafar Abbas, Irfan Ali, Abid Butt and Ishrat Ali. The other accused were acquitted but the appellant and accused Zafar Abbas in Appeal No. 12 of 1986 and appellant and accused Rasheed in Appeal No. 13 of 1986 were convicted as stated above.

5. P. W. Syed Shahid Raza was the first informant. He has stated that Habibullah denied his signature on requisition slip on the basis of which cheque book was issued by the appellant dated 10‑5‑1981. Cheque Exh.2/E was passed for payment by accused Tariq Saleem and supervising signatures were done by Mrs. Najmi Shahnaz whereas cheque Exh.2/F was passed for payment by accused Tariq Saleem who had no authority to pass such cheque for payment without obtaining signature of some other officer.

P.W. Tariq Jamil has deposed that a bearer Cheque No. 382002 for Rs.20,000 has been cashed on 10‑5‑1981 and payment has been received by Mr. Jawed and again on 11‑5‑1981 another bearer Cheque No. 382005 for Rs.55,000 was presented and payment has been received by Mr. Rasheed.

P.W. Najmi Shahnaz has identified her signatures on Exh.2/E cheque for Rs.20,000 which she has signed in supervisory capacity. This cheque was passed for payment by accused Tariq Saleem.

P.W. Syed Muhammad Ali has stated that Exh.2/D is a normal requisition slip given by account‑holder for issuance of cheque book and it was accepted by the appellant who issued the cheque book. He has also identified the signatures‑ of appellant on Exhs. 2/E and 2/F.

P.W. Habibullah has not 'admitted his signatures on Exhs. 2/D, 2/E and 2/F

6. The learned trial Judge framed six points for determination. Point No.2 relates to the appellant and it reads as under:‑---

"Whether accused Tariq Saleem issued a cheque book bearing Nos. 382001 to 382025 on forged requisition slip in the name of account‑holder Habibullah and from the said cheque book, he used Cheque No. 382002 for withdrawal of Rs.20,000 from the account of said Habibullah with the active help and connivance of the other accused persons by using false cheques as genuine and committed criminal breach of trust in respect of the said amount and also consequently falsified ledger of the account of said Mr. Habibullah "

7. The appellant in his statement denied the allegations. He admitted that cheque book was issued by him but that was a genuine requisition slip. He has further stated that he tallied the signature which were apparently the same. He had shown the signatures on requisition slip to Mrs. Najmi Shahnaz and she also agreed with him and then he issued the cheque book. He did not know any of the accused persons in this case. He did not forge the signatures of the account‑holder. The cheque in question 'was not posted by him in the ledger although it was credited for payment by him. He did not receive the proceeds of the cheque on encashment. On the question as to why the P.Ws have deposed against him, the accused stated that the bank employee deposed against him because they asked him to sit in the CD department. They must have conspired with each other.

8. The learned trial Judge has come to the conclusion that the cheque book was issued by the appellant and the appellant has not denied this fact but he has stated that on a valid requisition slip, he had issued the cheque book. After discussing the evidence of the witnesses, the learned Presiding Officer has observed that the prosecution has led no direct evidence to establish that it was accused Tariq Saleem who forged the signatures of account‑holder Habibullah. On the contrary P.W. Tariq Jamil who was token clerk deposed that he was presented token for encashment of cheque for Rs.20,000 Exh.2/F by one Jawed Khan to whom he paid the money and had picked him up in the identification test held before the Magistrate, when he came to know that his real name was Zafar Abbas.

Similarly in Appeal No.13 of 1986 it has been observed by the learned trial Judge that P.W. Malik Shafiq has deposed that payment of cheque Exh.2/E for Rs.55,000 was made by him to Rashid Khan alias Rasheed Ahmad to bearer of the cheque after taking his second signature on the back of the cheque and he picked up accused Rasheed Ahmad in the identification test. After discussing such evidence he came to the conclusion that it cannot be said that accused Tariq Saleem used this cheque as genuine for encashment and/or realized the proceeds of this cheque and consequently falsified the ledger of the account of Habibullah although it is established that he issued cheque book in question on requisition slip and assisted accused Zafar Abbas and Rasheed Ahmad in encashing Cheques Exhs. 2/E and 2/F which were forged. There is no finding that he had any nexus with the accused. The prosecution has not produced any evidence to prove complicity between accused and the appellant. There is also no evidence that the appellant has received any amount or presented the cheque for encashment. In fact the cheques were presented by the accused Rasheed Ahmad and Zafar Abbas and they have received payments.

9. The appellant has been convicted under section 408/109, P.P.C. and 471/109, P.P.C. The ingredients of section 408, P.P.C. are that whosoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property commits criminal breach of trust in respect of the property. The prosecution has absolutely failed to establish that any entrustment was made to the accused and he has committed the criminal breach of trust. The appellant has not been convicted on the principal charge as the judgment shows, but under section 109, P.P.C. for abetment. The other charge for which the appellant has been convicted is under section 471/109. The basic ingredient of this section is that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, There is no evidence to establish the ingredients of section 471. The judgment shows that the appellant has been convicted for abetment. No amount has been received by the appellant and the other accused who have been convicted received the payment according to the prosecution evidence. The view taken by the learned trial Judge is that the accused had issued a cheque book on slip Exh.2/D which did not bear the genuine signature of the account‑holder. The learned trial Judge had himself admitted that it has not been established that the signatures of the account holder on Exh.2/D has been forged by the appellant. P.W. Syed Shahid Raza the star witness of the prosecution has admitted in his statement that accused had told him that prior to the requisition slip Exh.2/D some one brought a letter from Mr. Habibullah for issuance of fresh cheque book and he told him that he did not accept such letter but gave him a requisition slip to be filled in by the account‑holder. This also shows 'that the appellant had taken all the precautions before issuing a fresh cheque book to the account‑holder. This witness has admitted that Exh.2/D was passed for payment by appellant and Mrs. Najmi Shehnaz also signed Exh.2/E. Thus, Mrs. Najmi Shahnaz was vicariously liable for any omission or commission if committed by the appellant. The witness has also admitted that the appellant was posted in C.D. Department on the day for the first time by Mr. S. Mahmood Ali second officer of his branch. The appellant in his statement has stated that the cheque book was issued by him but that was on a genuine requisition slip. He tallied the signatures which were apparently the same. He has shown the requisition slip to Mrs. Najmi Shehnaz and she also agreed with him and then he issued cheque book. He did not forge the signature of the account‑holder. The cheque in question was not posted by him in the ledger. The accused would have been saddled with the liability if his connection with the convicted or acquitted accused has been established. In the absence of any evidence on this score the appellant cannot be convicted for abetment as the evidence about abetment is lacking in the present case.

10. In these circumstances, we are of the opinion that the prosecution has absolutely failed to bring home the charge against the appellant. The appeals are accepted and the conviction and sentences recorded against the appellant in both the above appeals. Criminal Appeal No. 12 of 1986 and Criminal Appeal No. 13 of 1986 are set aside. He shall be released forthwith if not required in any other case. The appeals were accepted by the short order and the aforesaid are the reasons in support of the same.

S. G. D. Appeals allowed.

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