Find a Lawyer

Criminal Revision No. 3 of 1962, decided on 13th April 1962.

Ss. 409 & 477‑A‑First trial on charge under 5.409‑Acquittal on ground of signature being made in good faith‑Subsequent trial for falsification of accounts on same facts not maintainable in circumstance of case‑Criminal Procedure Code (V of 1898), S. 403.

Emperor v. Jabbar Mull Lakkar I L R 49 Cal. 924 and Mahadev Prosad v. Emperor A I R 1937 All. 117 rel.

Abdus Salam Khan with Shaukat Hossain for Petitioner. K. M. Sobhan for the State.

This revisional application arises in the following circum stances :‑

The petitioner as alleged by the prosecution was the officer in‑charge of the Nawabganj Police Station in the district of Rajshahi and Syedur Rahman, Senior Assistant Sub‑Inspector of Police at that station, was placed in charge of cash and other properties of Malkhana as well as Malkhana itself. The accused petitioner Abdul Majid and Syedur Rahman were placed on trial for misappropriation of a sum of Rs. 1,164‑11‑0, on different date within the period from 5‑3‑58 to 31‑5‑59 and alternatively the petitioner was charged under section 409/109 for aiding the principal accused Syedur Rahman in the commission of the offence of misappropriation.

2. The defence of the two accused persons being conflicting, the cases were split up and Abdul Majid was tried for the said offences in Special Case No. 34 of 1960 and acquitted of both the charges.

3. The allegations against Abdul Majid were that he put his signatures against certain entries in the cash book showing deposit of amounts in treasury although, in fact, nothing was done and thus committed or aided the commission of misappropriation of Government money.

4. The defence of Abdul Majid is that he was the Officer‑in Charge of a very busy police station and that he could hardly have any time to be vigilant about the cash. He placed his signatures or initials in the entries made by Syedur Rahman in good faith. He further asserted that on the dates on which misappropriation took place he was away from the station and on his return, he put his signatures in good faith. There is no other evidence as to his guilt except the said signatures. The learned Judge did not think that these entries were done with intent to commit the offence. On a consideration of the evidence led in the case, the learned Special Judge came to the following conclusion :‑

"The signatures of this accused in the cash book as they stand show that he put these signatures first on 8‑3‑58 and then on 31‑5‑58. But the fact admitted is that he was absent from the police station at the relevant date and time. So the mis appropriation in question took place when this accused was absent. This being the position, I fail to understand how the accused can be said to have aided Syedur Rahman in committ ing the offence. The offence being admittedly committed behind his back, it is preposterous to say that he abetted Syedur Rahman in the commission of the offence."

5. After the acquittal of the petitioner on a charge of mis appropriation or abetment thereof, the present prosecution has been launched under section 477‑A of the Pakistan Penal Code on the allegation of falsification of accounts for having put the self‑same signatures and the petitioner is being tried in the Special Case No. 48 in the Court of the Senior Special Judge of Rajshahi and in this revisional application quashing of the said proceeding has been prayed for.

6. Mr. Abdus Salam Khan, learned Advocate for the petitioner has submitted that his client Abdul Majid is being prosecuted on a charge of falsification of accounts under section 477‑A of the Penal Code founded on the same signatures and therefore the prolongation of the present trial will work injustice to the petitioner who will have to go through the jeopardy of a second trial in complete disregard of section 403 of the Criminal Procedure Code.

7. Mr. K. M. Sobhan, learned counsel appearing for the State, admits that although the ingredients of the two offences are different, they are based in this case absolutely on the same facts. He also fairly and frankly concedes that there can be no conviction in this case unless it is found that the same signatures were put with the criminal intent as alleged by the prosecution,

8. In the earlier trial, the finding was to the effect that the same signatures have been done in good faith. I really do not see how the present case can end in conviction, inasmuch as, there can be no conviction for falsification of accounts, unless it is possible to reach conclusion that these very same signatures were done with the criminal intent as specified in the section. In the peculiar circumstances of this case, it seems to me, that) the facts alleged to constitute the present offence are those alleged in the former trial. In that view of the matter, I am of opinion that continuance of the proceedings will put the petitioner into unnecessary harassment. Therefore, in the ends of justice the impugned proceedings on this ground alone should be quashed.

9. Sanderson, C. J., discharged the accused in similar circumstances in Emperor v. Jabbar Mull Lakkar (I L R 49 Cal. 924). In that case an accused was tried under section 408 of the Penal Code and it was part of the prosecution case that he made three false entries to conceal the acts of misappropriation. He was acquitted of the charge of misappropriation but was subsequently charged on the same evidence under section 477‑A of the Penal Code. The learned Chief Justice observed as follows :‑

"The accused ought not to be put on his trial in respect of these charges. If he were so tried, in my judgment, it would in effect amount to trying him again for the same offences on those upon which he had already been tried and acquitted by the jury, although the charges now before the Court are framed in a different manner."

It seems to me that this observation equally applies to the facts of the present case.

Similar view was also taken in the case of Emperor v. Nand Kishore Prosad (A I R 1919 Pat. 384).

10. In the case of Mahadeo Prasad v. Emperor (A I R 1937 All. 117), Thom J., observed as follows :‑

"The acts which the prosecution alleged amount to an offence under section 408/ 109 are precisely those acts which it is now alleged amount to an offence under section 477‑A. It is quite clear that the prosecution in the first instance could not have charged the applicant with an offence under section 408/109 and also under section 477‑A. It might well have charged him with an offence under section 408/109 or in the alternative with an offence under section 477‑A, but certainly it could not have preferred two distinct and separate charges, one under each section, against him. Therefore, the provisions of section 403 (2), Criminal P. C., do not warrant the committal of the applicant upon a fresh charge in the present instance. I am supported in this conclusion by the decision in 49 Cal. 924."

11. In the case before me also precisely the same facts which formed the basis of the charge under section 408/109 of the Penal Code, are being alleged for a trial under section 477‑A of the Penal Code. Facts in Manickchand Agarwala's case reported in 56 C. W. N. 384 also appear to be similar to the instant case. In that case a person was being tried for offering bribe to an officer for the purpose of antedating receipt of a return filed on the 9th March, 1951 as alleged by prosecution although it was 3rd March, 1951. The accused petitioner was previously tried for not filing the return on due date, i.e., on the 3rd March, 1951, but he was found not guilty as the Court was satisfied that the return was, in fact, filed on the 3rd March. The point made was if the return was filed in time as was found in the previous trial there could be no question of giving bribe at all. Permission sought by the accused for adducing evidence of the acquittal in the previous trial having been refused, the question was raised in the High Court in a revisional application Haries and Guha, JJ. relying on the Privy Council case of Sambasivam v. The Public Prosecutor Federation of Malaya, observed as follows :‑

"The very basis of the case is the fact that the return had not been filed. But clearly on the case for the prosecution it is not open to the prosecution to allege that it had not been filed and if they cannot allege that then quite obviously no prosecution for bribery could ever succeed."

12. Similarly in the case before me also the basis for prose cution under section 409/109 was petitioner's signatures against the entries in the cash book and because of the acquittal in that case it cannot any longer be alleged that the same signatures had been made with the criminal intent as required under the law. Mr. Khan has rightly placed his reliance in the aforesaid Privy Council case of Sambasivam v. The Public Prosecutor Federation of Malaya, after having been acquitted of the charge of illegal possession of ammunition, the accused was being tried for illegal apossession of rms, and their Lordships of the Privy Council observed as follows :‑

"The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge on after a lawful trial is not completely stated by saying that the person acquitted can= not be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammuni tion in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the fire‑arms charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for, at that first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other."

13. As already indicated, I am satisfied it is not now open to the prosecution to allege criminal intent to the self‑same signatures against entries in question. That being the position D continuance of the proceedings will mean unnecessary harassment to the petitioner. I would, however, confine my judgment to the facts of this case as was done by Sanderson C. J. in Jabbar Mull Lakkar's case.

For these reasons, the Rule is made absolute, impugned proceedings are quashed and petitioner is discharged from his bail bond.

S. B./A. H.

Find a Lawyer Near You

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