Find a Lawyer

Criminal Appeal No. 205 of 1986, decided on 29th December, 1986.

‑‑‑Ss. 408, 465, 477 & 471‑‑Offence in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss. 3 & 10‑‑Accused, a bank employee, convicted for drawing amount on forged cheques from account of other persons‑ Ingredients of 5.471, Penal Code not established by prosecution beyond reasonable doubt‑‑No evidence available on record to show that two forged cheques were used by accused‑‑Charge under S.471, Penal Code, not proved against accused‑‑Charges against accused under Ss. 408, 465 & 477‑A, P.P.C. not proved on account of complete absence of evidence‑‑No possibility of conviction of accused, held, existed under S.471, Penal Code‑‑Conviction and sentence set aside.

Azad Bin Haider for Appellant.

Anwar Mansoor Ahmed for the State.

Date of hearing: 29th December, 1986.

‑‑The appellant who has been convicted by the Special Court constituted under section 3 of the Offence in Respect of Banks (Special Courts) Ordinance, 1984, under section 471, P.P.C. has filed this appeal under section 10 of the Ordinance to challenge his conviction and sentence.

The appellant who was working as Incharge of Saving Bank Account Department of Muslim Commercial Bank, Main Branch, I.I. Chundrigar Road, Karachi, was tried for the offence under sections 408/468/471 and 477‑A, P.P.C. It was alleged by the prosecution that during the period from 28th October, 1980 to 23rd November, 1981, while the appellant was working as Incharge of Saving Bank Account Department of Muslim Commercial Bank, Main Branch, I.I. Chundrigar Road, Karachi, he had a saving account in his name with the said branch under Account No. 6/4495. That the appellant was issued a cheque book containing cheques bearing No. 679911 to 679920 in respect of the above account. That the applicant out of the above cheques allegedly forged cheque No. 679916 and managed to withdraw a sum of Rs.10,000 from account No. 11360 maintained by one Khalilur Rehman. That similarly on 27th February, 1981, the appellant allegedly withdrew another sum of Rs.10,000 by forging another cheque No. 679917 out of the account of one Saif Ali, which he maintained with the Bank under No. 5600. It was also alleged that the appellant further committed forgeries and falsified the ledgers of account No. 11360 and 5600. It is an admitted position in the case that both cheques were drawn in the names of two different persons who had their accounts in different banks and their accounts were credited after collection of the proceeds of that cheques. In the challan submitted against the appellant as many as eleven witnesses were cited but out of them only one witness, namely, Mohammad Sharful Haq, the Controller of Main Branch of Muslim Commercial Bank, I.I. Chundrigar Road, Karachi was examined, besides examining Mohammad Aslam, a Sub‑Inspector of Police who produced the F.I.R. and the challan in the case. Neither the Investigating Officer nor the two account holders from whose accounts the amount was allegedly withdrawn by the appellant after forging the above cheques nor the persons in whose account the amounts were transferred as a result of above forgery were examined in the case. The learned Special Court found that there was no evidence to establish that the signatures of the account holders Khalilur Rehman and Saif Ali. on the forged cheques were forged by the appellant. It was also found by the learned Court that there was no evidence to prove that the appellant had realized the proceeds of the two forged cheques. It was further found by the learned Judge that there was no evidence to show that the ledger of account No. 11360 and 5600 were falsified or forged by the appellant. As a result of above conclusion the appellant was acquitted of the charges under, sections 408/468 and 477‑A, P.P.C. The appellant was, however, convicted under section 471, P.P.C. by the learned Judge on the ground that he admitted in his statement under section 342, Cr.P.C. that the two cheques bearing No. 679916 and 679917 were those which were issued to him and that he passed the same for payment in spite of the knowledge and having reasons to believe that they were forged cheques. After hearing the learned counsel for the appellant and the State we are of the view that the ingredients of section 471; P.P.C. were not established by the prosecution beyond reasonable doubt and as such the conviction and sentence awarded by the learned Special Judge cannot be maintained. Section 471, P.P.C. reads as follows:‑

"471. Using as genuine a forged document: Whoever fraudulently or dishonestly uses as genuine any document which he knew or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document:"

A careful reading of the above section will show that in order to sustain conviction of appellant under above section, the prosecution should have established firstly the use of the document by the appellant; secondly, such use by the appellant was fraudulent and dishonest and, lastly, the appellant used the same as a genuine document while he knew or has reason to believe to be a forged document. There is no evidence on the record to show that the two forged cheques were used by the appellant. The fact that the appellant had admitted before the Court that the two forged cheques were those which were issued to him did not necessarily mean that he used them to be forged. It may be true that as these cheques were not issued to account‑holders it would have arisen suspicion and doubt in the mind of the appellant while passing the same for payment as to their genuineness but this fact alone was not sufficient to sustain the conviction of the appellant under section 471, P.P.C. Further as a result of failure of charges under sections 408, 468 and 477‑A, P.P.C. against the appellant on account of complete absence of evidence, there was no possibility of conviction of appellant under section 471, P.P.C. After going through the evidence on record we are satisfied that the prosecution had failed to establish the charge under section 471, P.P.C. against the appellant and we accordingly accept this appeal. The conviction and sentence of appellant is set aside and he is directed to be set at liberty forthwith unless he is required by the Authorities in some other case.

M.Y.H./T‑14/K Appeal accepted.

Find a Lawyer Near You

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