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Criminal Appeals Nos. 29 to 31 of 1986, decided on 6th July, 1986.
‑‑‑Ss. 25 & 477‑A‑‑Expressions "fraudulently" and "with intent to defraud", connotation of‑‑Any act done "with intent to defraud", held, was fraudulent within meaning of S. 477‑A, P.P C., irrespective of fact whether anybody actually was deprived of any property or not as a result thereof.‑‑[Words and phrases].
A plain reading of section 477‑A , P . P . C . would show that it speaks of two offences; (1) falsification of accounts, and (2) making false entries or omitting, altering or abetting the omission or alteration of an entry both with intent to defraud. These two offences are distinct and independent of each other., This section makes falsification of accounts punishable whether there is or is no evidence to prove misappropriation of any specified sum of money. In order to make a person liable under section 477‑A , P . P . C . all that is to be proved that he falsified an entry in any book or register wilfully and with intent to defraud. The expression "intent to defraud" implies conduct couple with intention. A reference to section 25 of the P.P.C. shows that the expressions "fraudulently" and "with intent to defraud" are synonymous. The difference between an act done dishonestly and an act done fraudulently is that if there is an intention to cause wrongful loss by the deceit practised, it is dishonestly but even in the absence of such an intention if the deceitful act wilfully exposes anyone to risk of loss then it is fraud. The section, therefore, does not require any deprivation of property. When an act is done with intent to defraud then it is fraudulent within the meaning of section 477‑A, P.P.C. even though nobody is actually deprived of any property.
‑‑‑Art. 78‑‑Interpretation Expert evidence Examination of signatures‑‑Disputed writing not always be sent to Handwriting Expert.
Usman Ghani v. Muhammad Amin P L D 1975 Lah. 299; A I R 1967 Mys, 86; Maung Tint v. The King A I R 1939 Rang. 156; Krishna Murthy v. Abdus Subhan A I R 1965 Mys. 128; Abdul Rehman v. State 1981 S C M R 1105 (2); Muhammad Fazlul Karim v. The State and another P L D 1964 S C 792; A I R 1940 Lah. 54 and The State v. Hiralal A I R 1957 All. 342 ref.
‑‑‑S. 145‑‑Cross‑examination‑‑Presumption‑‑Evidence of a witness given by him in examination‑in‑chief not challenged by putting questions to him in cross‑examination‑‑ Such evidence, held, would be deemed to be true.
Qasim's case P L D 1967 Kar. 233 ref.
‑‑‑S. 25‑‑Motive‑‑Contention that specific evidence should have been led by prosecution regarding wilful falsification of accounts with intent to defraud by actual words from mouth of witness‑‑Contention, held, not correct and Court may conclude mens rea from overall facts and circumstances of case.
Saras Saligis's case A I R 1934 All. 711; A I R 1936 M W N 1017; A I R 1961 Pat. 362; Ahmad Nisar v The State 1977 S C M R 175; Atta Muhammad v. The State 1968 S C M R 502 and Sukhamoy Maitra v. Emperor A I R 1938 Pat. 165 ref.
‑‑‑S. 45‑‑Expert evidence‑‑Handwriting Expert not examined as witness‑‑Report of such Expert, held, could not be treated as a piece of evidence against accused.
Shahanshah Hussain for Appellant.
Murtaza Hussain for the State.
Date of hearing: 5th June, 1986.
.‑‑ Since common points of law and facts are involved in these three appeals, hence we have decided to dispose of these three appeals by this common judgment. The appellant was convicted by Presiding Officer Special Court of Sind (Banks) Karachi under section 477‑A. P.P.C. in all these appeals and has been sentenced to undergo R.I. for two years and a fine of Rs.25,000 in the first appeal and Rs.35,600 in each of the other two appeals and in default to suffer R.I. for six months. It was further directed that the substantive sentence awarded in the later two cases shall run concurrently with the substantive sentence awarded in the first case.
The allegations against the appellant who was a Grade III Officer in the National Bank of Pakistan Naval Dockyard Branch are reflected in the challans submitted against him initially in the Court of Special Judge Central Karachi on 6‑12‑1983 which read as under:‑----
"That in 1976 accused was working as an officer in the N. B. P. Naval Dockyard Branch Karachi and in this year he altered a credit balance of Rs.4,647.97 to Rs.10,047.97 in the ledger of S. B. Account No.2331 standing in the name of Mr. Mohammad Rashid. Azhar and thereafter permitted him to withdraw a total amount of Rs.7,500 from the said account and thereby caused a loss of Rs.2,852.03 to the N.B.P. falsifying the ledger of Account No. 2331 and in the course of this he also committed forgeries." (Appeal No. 229 of 1986).
"That in 1975 accused was working as an officer in the N . B . P. Naval Dockyard Branch Karachi and in this year he made a fictitious entry of Rs.16,905 in S.B. Account No. 2311 standing in the name of Mr. Rashid Azhar and thereafter allowed him to withdraw the said amount by different cheques and thus falsified ledger of Account No. 2331 and caused a loss of Rs.16,905 to the bank and in pursuance of this he also committed forgeries." (Appeal No. 30 of. 1986).
" That in 1975 accused was working as an officer in the N.B.P. Naval Dockyard Branch Karachi and in this year he made a fictitious entry of Rs.7,300 in S.B. Account No.2318 standing in the name of Mrs. M.A. Qureshi and thereafter allowed her to withdraw the said amount by different cheques and thus falsified ledger of Account No. 2318 and caused a loss of Rs.7,300 to the bank and in pursuance of that he also committed forgeries.' (Appeal No. 31 of 1986).
On promulgation of Ordinance IX of 1984 the above cases stood transferred from the Court of Special Judge Central Karachi to the Special Court of Sind (Banks) as Karachi. A consolidated charge was framed against the appellant in each of the cases under sections 467, 468, 474 and 477‑A. P.P.C. to which he pleaded not guilty and claimed to be tried.
3. The prosecution has examined Nazir Ahmed, Manager of National Bank of Pakistan Naval Dockyard Branch Muhammad Shamsuddin Inspector F.I.A. Iftikharun Nabi Zubairi Officer Grade It and Abdul Wahab the Investigating Officer, in each of these cases and. have closed their side. The appellant in his statement under section 342, Cr.P.C. has taken up a defence of total denial in respect of the allegations made against him except that he had admitted that he was working as an officer in the National Bank of Pakistan Naval Dockyard Branch at the relevant time.
4. The learned trial Court after taking into consideration the evidence thus adduced and after hearing the arguments of both the sides came to the conclusion that the offence of falsification of accounts as mentioned under section 477‑A, P.P.C. was proved against the appellant in all the three cases and therefore convicted and sentenced him as shown above. It however recorded an order of acquittal in respect of the remaining sections.
5. We have heard Mr. Shehanshah Hussain counsel for the appellant in all these three appeals and Messrs Murtaza Hussain, Abdul Sattar and Faiz Issa counsels for State separately in these appeals respectively.
Before we embark upon the appreciation of submissions made by the counsels of the parties it will be appropriate to have a bird's eye view of the law as to falsification of accounts under section 477‑A, P.P.C. In this connection first of all we would like to reproduce section 477‑A, P.P.C. which reads as under:‑---
"477‑A . Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, paper, writing valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully and with intent to defraud, makes or abets the making of any false entry in or omits or alters or abets the omission or alteration of any material particular from or in, any such book, paper writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Explanation.‑‑ It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the subject of the fraud, on any particular day on which the offence was committed."
A plain reading of this section would show that it speaks of two offences; (1) falsification of accounts and (2) making false entries or omitting, altering or abetting the omission or alteration of any entry both with intent to defraud. These two offences are distinct and independent of each other. This section makes falsification of accounts punishable whether there is or is no evidence to prove misappropriation of any specific sum of money. In order to make a person liable under section 477‑A, P.P.C. all that is to be proved is that he falsified an entry in any book or register wilfully and with intent to defraud. The expression "intent to defraud" implies conduct couple with intention. A reference p to section 25 of the P.P.C. shows that the expressions 'fraudulently' and 'with intent to defraud' are synonymous. The difference between an act done dishonestly and an act done fraudulently is that if there is an intention to cause wrongful loss by the deceit practised it is dishonestly but even in the absence of such an intention if the deceitful act wilfully exposes anyone to risk of loss then it is fraud. The section, therefore, does not require any deprivation of property. When an act is done with intent to defraud then it is fraudulent within the meaning of section 477‑A, P.P.C. even though nobody is actually deprived of any property.
6. Mr. Shahanshah Hussain who appeared for the appellant took us through the evidence of Nazir Ahmad Iftikharun Nabi Zubairi and contended that the same was not sufficient to prove that the appellant had falsified the account or had altered the entries referred to above wilfully and with an intent to defaud. In this connection it may be mentioned that Nazir Ahmed stated in Appeal No. 29 of 1986 that balance of Rs.4,647.97 in Account No. 2331 was changed to Rs.10,047.97 before this account was transferred to ledger No.12 on 1st July, 1976 and thereafter account holder was allowed to withdraw amounts from the enhanced balance which resulted in the loss of Rs.2,852 to the bank. He produced ledger of Account No. 2331 upto 30th June, 1976 as Exh.2/A which shows the real balance in the said‑ account is Rs.4,647.97. He further stated that this ledger also shows the alteration so made, but was unable to state whether such alteration was in the handwriting of the appellant. However, he confirmed that initials against altered balance was that of the accused and this inflated balance was carried to new ledger No. 12. In his cross‑examination he further stated that initials against the enhanced balance is also that of the accused but he cannot say if the figures are in the handwriting of the appellant. He further deposed that a total amount of Rs.7,500 after alteration in the credit balance was withdrawn from Account No. 2331 but he cannot say that the debit entry was in the handwriting of the appellant. He produced debit vouchers in respect of these debit entries.
In Appeal No. 30 of 1986 the, evidence of Nazir Ahmad is not to the point and, therefore, need not be reproduced.
In Appeal No. 31 of 1986 P.W. Nazir Ahmed deposed that entry of Rs.7,300 which is fictitious credit entry in S.B. Account No.2318 is initialled by the accused but he cannot say about the handwriting.
7. So far as the statement of next witness Iftikharun Nabi is concerned he has stated as follows in the various appeals:
In Appeal No. 29 of 1986 he has stated that he knew the appellant. They had worked together in one branch for 2‑3 years and because of this he became familiar with his handwriting, signature and initials and he had seen him writing, signing and initialling. He referred to Exh.2/A and stated that initials against entries, dated 26th June, enclosed in circle Exh.2/A against figures 4,647.97 and 10,047.97 were that of the appellant which he could identify. Entry in respect of amount of Rs.10,047.97 was also in the handwriting of the appellant.
In Appeal No. 30 of 1986 he stated that in 1978 he was an officer Grade‑2 in the Naval Dockyard Branch of N.B.P. while the appellant was an officer grade 3 in the said branch. He and the appellant had worked in this branch for about 3 years together. Because of this long association in same branch he had seen the appellant writing, signing and initialling many times and thus, he became familiar with his writing, signatures and initials. After referring to Exh.3/A he stated that it was an original saving bank ledger in respect of Account No. M‑2331 Muhammad Rashid Azhar. He referred to credit entry for Rs.16,905, dated 12th June, 1975 in this exhibit which he stated is in the handwriting of and also initiated by the appellant which shows that posting of this entry was done by the appellant.
In Appeal No. 31 of 1986 he stated that he knew accused present in Court. They had worked together in one branch for 2 or 3 years. Because of this he had become familiar with his handwriting, signature and initial as he had seen him writing, signing and initialling many times. After referring to Exh.2/A he stated that the figure 7,300 is not in the handwriting of the appellant whereas in respect of Rs.5,305 he states that he was doubtful but for the initials against these two figures he stated that these were of the appellant which he could identify.
8. From the above statements of these two witnesses it would appear that Nazir Ahmed cumulatively stated that the initials against the disputed entries were of the appellant and he was not in a position to state as to whether the handwriting of the disputed entries was of the appellant or not.
The statement of P.W. Iftikharun Nabi covered both the handwriting of the disputed entries as well as the initials against the same and he categorically stated that the handwriting as well as initials against the disputed entries were of the appellant. He went on to say that he had worked together with the appellant for about three years and, therefore, had the occasion to see his handwriting as well as initials and was of the opinion that both the handwriting as well as initials of the disputed entries were that of the appellant with which he was familiar as stated above. It would, therefore, appear that the statement of these two witnesses encompassed the disputed handwriting as well as disputed initials of the appellant with regard to the relevant entries. As already pointed out by me above Mr. Shahanshah Hussain has criticised the. evidence of these two witnesses on the ground that the same was insufficient and contradictory. Elucidating the point of insufficiency he contended that it was not sufficient to have examined these two witnesses and that the disputed entries should have been sent to the Handwriting Expert and his opinion should have been obtained. Thereafter, the Handwriting Expert should also have been examined to prove that the entries were made in the handwriting of the appellant and the initials against these entries were also in the handwriting of the appellant. He further contended that these witnesses should have stated that the appellant had wilfully made these entries with an intention to defraud. The omission of these witnesses to state that the entries were made wilfully and with intention to defraud had left a lacuna the benefit of which should go to the appellant. In other words what he meant to say was that the existence of evidence of mens rea should have come from the mouth of these witnesses. Regarding his contention that the statements of these witnesses were contradictory he pointed out that P.W. Nazir Ahmed stated that according to him the initials against the entries were of the appellant but the handwriting of the entries themselves was not of the appellant. As against this P.W. Iftikharun Nabi has stated that the initials as well as handwriting of the entries was of the appellant.
9. The contentions raised by Mr. Shahanshah Hussain do not hold any water. It is not correct to say that mere evidence of these two witnesses was not sufficient to prove the handwriting and initials of the witnesses. Article 78 of Qanun‑e‑Shahadat Order, 1984 does not make it obligatory upon the prosecution to examine the Handwriting Expert. The same may be reproduced as under:‑---
"78. Proof of signature and handwriting of person alleged to have signed or written document produced.‑‑I a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be 'in the person's handwriting must be proved to be in his handwriting.
10. In the case of Usman Ghani v. Muhammad Amin reported in PLD 1975 Lah. 299 Mr. Justice Muhammad Afzal Zullah, J (as he then was) rejected the contention of the counsel for the appellant who tried to argue that in a case like the present one it was always. essential for the Court to seek expert opinion on disputed signatures.
Appellant's counsel placed reliance on A I R 1967 Mys. 86 (In re: M. Gangadhariah) where it was held that no act amounts to a falsification of account unless as provided by section 477‑A there is an intent to defraud or there is a wilful and intentional falsification of accounts. This ruling is distinguishable from the facts of the present case because there was no material in that case from which it was possible to say that the opening of the current deposit account by the accused was actuated with any intention to defraud or was otherwise fraudulent or was wilfully made with intent to defraud, whereas in the present case the circumstances particularly that of actual loss caused to the bank clearly indicate that the appellant had the intention to defraud and that the falsification of account was wilful and intentional.
He then cited Maung Tint v. The King A I R 1939 Rang. 156. This ruling also does not apply to the present case because in that case the accused was a clerk of a Court and had made false entries in the diary of the Court' merely for the purpose of screening his own negligence of his duties as a clerk of the Honorary Magistrate's Court without facilitating any misappropriation or embezzlement nor there was any material loss caused to anyone nor advantage of a prospective nature which he could be held to have intended to gain by the deception whereas in the present case there is an actual loss to book which was facilitated due to the falsification of account thus made by the appellant.
The next ruling cited by him was Krishan Murthy v. Abdus Subhan A I R 1965 Mys. 128. This ruling is also not applicable to the facts of the present case because in that case retrial was not ordered due to lapse of time and the accused were acquitted.
Mr. Shahanshah Hussain also referred to Abdur Rehman v. State 1981 S C M R 1105(2) where it was held that wilful falsification of account with intent to defraud must be proved. This ruling would also not apply to the facts of the present case for the reasons already shown above.
He then cited Muhammad Fazlul Karim v. The State and another P L D 1964 S C 792 where it was held that the accused cannot be convicted merely because he told an untruth with regard to the allegations made against him by the prosecution. To say the least this ruling would also not apply to the facts of the present case because the conviction of the appellant is not based on the falsehood of any statement made by the appellant.
He then cited A I R 1940 Lah. 54 in which it was held that onus to prove an offence was always on prosecution and never shifts on the defence. This ruling would also not apply to the facts of the present case because the prosecution has already discharged the onus which was upon it by examining Nazir Ahmed and Iftikharun Nabi as shown by us above.
Finally he cited State v. Hiralal A I R 1957 All. 342 where it was held that non‑production of material witnesses by the prosecution would create adverse inference. This ruling is distinguishable from the present case because in the case referred the prosecution, after citing the proprietors of the firm as witnesses, failed to produce them without assigning any reason, whereas in the present case it was not so. The law that is laid down by a superior Court is a precedent on its own facts: Their Lordships of the Supreme Court have reiterated this principle time and again. Reference in this connection may be made to N L R 1978 Cr. C 688.
11. We are, therefore, satisfied that it was not necessary for the prosecution to have examined the Handwriting Expert. The evidence of P.Ws. Nazir Ahmad and Iftikharun Nabi was sufficient to establish the charge of falsification of accounts wilfully and with intent to defraud as provided under section 477‑A against the appellant. Enmity has not been claimed against either of these two witnesses, nor has it been alleged that any of them had any ‑motive to falsely implicate the appellant. Their evidence had not been challenged by cross‑examining them on such material point as regards their familiarity with the handwriting and signature of the appellants and other relevant points, that is, the initials and figures and with regard to the falsify of their evidence on these points. It is settled law that when the evidence of a witness given by him in examination‑in‑chief is not challenged by putting questions to him in the cross‑examination, the presumption is that the same is deemed to be accepted as true. Reference in this connection may be made to Qasim's case P L D 1967 Kar. 233 where Khamisani, J. held as under:‑---
"It is a settled position in law that if some fact is deposed to in examination‑in‑chief which is not questioned in cross‑examination the presumption is that that part of the evidence is deemed to have been accepted by the party against whom that evidence has been given. Acting on this principle I accept the evidence of Ghulam Murtaza, his evidence in respect of the production of property having not been questioned."
12. The contention of Mr. Shahanshah Hussain that specific evidence should have been led by the prosecution regarding the wilful falsification of accounts with intent to defraud by actual words from the mouth of the witnesses is also not acceptable to us. If the prosecution witnesses have not given specific evidence with regard to the intention of the accused, the Court can conclude mens rea of the intent to defraud from the fact and circumstances of the case.
In Saran Saligis case A I R 1934 All. 711 it was held that dishonestly may be presumed only if an unlawful act is done or if a lawful act is done by unlawful means. Same view has been taken in AIR 1936 Madras Weekly notes 1017. In yet another ruling reported in Sheodeni Singh v. State of Bihar A I R 1961 Pat. 362 (DB) it was held that every man is presumed to intend the actual consequences of his act and it is from the consequences that the Court has often to presume the intention of the accused in doing a particular act. Thus, where wrongful loss is caused to the owner, it must be presumed that the act was done with the intention to cause wrongful loss. In the case a house was demolished unlawfully and the material was taken away. It was held that taking of the material will be presumed to be dishonest.
Reference in this connection may also be made to Ahmad Nisar v, The State 1977 S C M R 175 where it has been held that generally speaking motive, more or less, is a guess on the part of the prosecution witnesses. What truly motivated an accused person to commit a crime is best known to him and not to others. Absence of motive or failure on the part of, the prosecution to prove it does not, therefore, adversely affect the testimony of eye‑witnesses if they be otherwise reliable.
Similar view has been reiterated in Atta Muhammad v. The State 1968 S C M R 502 where it was held that motive is after all a matter of speculation for what moves a person to take the life of another is within his own special knowledge and does not constitute a necessary ingredient for the offence of murder.
Moreover the appellant in his 342, Cr.P.C. statement has not taken any pleas to the effect that falsification of accounts made by him by making false entries or putting his initials against false entries was an innocent or at the most a negligent act nor he has made any such suggestion to the witnesses in cross‑examination. He has altogether denied having made these entries or having put his initials.
In Sukhamoy Maitra v. Emperor A I R 1938 Pat. 165 it was held that a reference to section 25 of the Penal Code shows that the expressions "fraudulently" and "with intent to defraud" are synonymous but there is no further definition of their meaning in the Code. The difference between an act done dishonestly and an act done fraudulently is this. If there is the intention by the deceit practised to cause wrongful loss that is dishonest but even in the absence of such an intention, if the deceitful act wilfully exposes anyone to risk of loss, there is fraud.
13. With the contention of Mr. Shahanshah Hussain, that there were contradictions and inconsistencies between the evidence of P.Ws. Nazir Ahmed and Iftikharun Nabi, we are not at all agreeable. We do not find any such contradiction or inconsistency. All that we find is that whereas regarding the handwriting of some of the disputed figures P;W. Nazir Ahmad says that he cannot say that the same were in the handwriting, of the appellant, he has nowhere stated that the same were not in the handwriting of the appellant while P.W. Iftikharun Nabi has stated that the same were in the handwriting of the appellant. We have carefully and minutely perused the evidence of both these P. Ws. and we do not find any material inconsistency or contradiction between the evidence of these two witnesses or any contradiction which would go to the root of the case.
14. We are, therefore, satisfied that the evidence of P. W. Nazir Ahmed and Iftikharun Nabi was sufficient to be made basis of conviction in these cases.
15. Although it was not necessary for the prosecution to have sent the disputed initials and handwriting to a handwriting expert, yet it would appear that in Criminal Appeal No.30 of 1986 the disputed entries and the initials were sent to the Handwriting Expert. The opinion of Sheikh Muhammad Din and Khalid Rasool Experts of F. I. A. Islamabad have been produced by Investigating Officer as Exh.60. The report is in the affirmative. No doubt the Handwriting Expert has not been examined hence the report cannot be treated as a piece of evidence against the accused. However, since the report has been produced and is available on record the appellant was at liberty to have shown that the same was in his favour and he cannot be allowed to argue that the disputed entries were not sent to the Handwriting Expert and, therefore, no presumption can be raised in favour of the appellant.
16. Now, we come to the question of sentence that has imposed on the appellant. The appellant has been convicted and sentenced before the amendment of section 477‑A, P.P.C. By subsection (2) of section 6 of offences in Respect of Banks (Special Courts) Ordinance, 19.84 whereby for the words 'may extend' the words 'shall not be less than five years' have been substituted. It was further provided that the fine that shall be imposed shall be not less than double the amount misappropriated or embezzled. But the fact of the matter is that the punishment, the substantive sentence as well as fine awarded to the appellant is such that it could have been awarded even under the unamended section. Hence the question of reducing the same does not arise. The learned trial Judge has already shown sufficient latitude to the appellant in the manner of awarding sentence in that he has awarded only two years' R.I. in each case and has further ordered that the substantive sentences in the latter two appeals shall run concurrently with the substantive sentence in the first appeal and has awarded imprisonment for 6 months only in. each appeal in default of fine.
17. We; therefore, dismiss all the three appeals and maintain the convictions and sentences recorded by the trial Court. Out of the amount of fine, if realised, .an amount equal to the amount of loss caused to the bank shall be paid to the Bank.
S. G. D. Appeals dismissed.
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