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Criminal Appeal No. 549 of 1960, decided on 8th October 1962.

Person employed by Undertaking, while it was privately owned, continuing in service after purchase of Undertaking by Government‑Public servant.

Objection to validity of, cannot be allowed at appellate stage‑Sanction once proved to have been given‑Presumption that it was regularly given‑Evidence Act (I of 1872), S. 112, illus. (e).

S. M. K. Alvi v. The Crown P L D 1953 F C 189 and F. D. Costa v. The State P L D 1959 Dacca 744 ref.

‑Thirty‑one acts of misappropriation committed within period of one year‑Setting out in one charge gross sum of amount misappropriated between first and last date, without specifying each item or exact dates, sufficient‑Criminal Procedure Code (V of 1898), S. 222 (2).

Manzoor Elahi v. The State P L D 1960 Kar. 607 and Sailendra Prasad Bose v. Crown P L D 1952 Dacca 81 ref.

Appellant. in person.

S. Murtza Hussain for Respondent.

Dates of hearing : 19th December 1961, 20th, 21st, 26th March, 30th April and 7th May 1962.

The appellant was convicted under section 409, P. P. C. by the Special Judge‑cum‑Inquiry Officer, Hyderabad (Late Mr. Muhammad Yakoob Nurnabi) on 26‑7‑60 and sentenced to suffer R. I. for 4 years and also to pay a fine of Rs. 40,000 or in default of payment of fine to suffer further R. I. for 2 years. The amount alleged to have been embezzled by the appellant is said to be Rs. 36,500. The appellant filed this appeal through Advocate but at the time of hearing no Advocate appeared for him and I had to call and hear him personally.

2. The facts, briefly, are that the appellant was Head‑cashier appointed in 1951 in the Electric Supply Undertaking, Hyderabad (Sind) and was there up to and after 1957. From August 1954 to July 1957, he is alleged to have dishonestly mis appropriated Rs. 1,20,275‑10‑9 from the amounts received by him as Head=cashier. The periods and the amounts were bifurcated for purpose of his trial and the present prosecution against the appellant is in respect of Rs. 36,500 dishonestly mis appropriated by him during the period December 1955, to November 1956.

3. The first point for consideration is whether the appellant is a public servant. There is no doubt that he is a public servant within the meaning or section 21, P. P. C. The Electric Supply Undertaking belonged to the Hyderabad (Sind) Electric Supply Company Limited. The concern was owned by Hindu evacuees. By Notification No. 7564‑S dated 29th November 1950, the licence of the Hindu owners was cancelled under section 4 of the Electricity Act IX of 1910 (1 of 1910) with effect from 16th January 1951. By Notification No. 7564‑S dated 30th January 1951, the Sind Government decided to purchase the Hyderabad (Sind) Electric Supply Undertaking which had become evacuee property. By letter No. F‑16(9)/52‑P dated the 26th July 1952, the Government of Pakistan sanctioned the sale of the Under taking in favour of the Sind Government under the provisions of section 12 (3)(b) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (XV of 1949). By, resolution No. 1407‑E/(3) dated the 12th January 1951, the Sind Govern ment directed that the staff then working at Hyderabad Electric Supply Undertaking including the Chief Engineer (but excluding the General Manager) should continue, on the existing rates of their emoluments, in service up to 28th February 1951. The staff continued to remain in the Sind Government service after the purchase of the Undertaking and remains so still. Under nineth description of section 21, P. P. C. "any officer whose duty it. is as such officer to take, receive or spend any property on behlaf of the Government is a public servant." Explanation 1 to section 21 states that "persons falling under any of the above descriptions are public servants whether appointed by the Government or not." The appellant is thus a public servant within the meaning of section 21, P. P. C.

4. The next important point is whether there is sufficient evidence to connect the appellant with the offence. It will be necessary to give the details of the working of the Undertaking as far as they relate to the facts involved in the present case. The appellant was Head‑cashier. Under him were assistant cashiers like P. W. 2 Gul Muhammad and others. Over him was the Resident Engineer P. W. 3, A. S. Farooqui. There was Assistant Commercial Manager also P. W. 1 Muhammad Hasan.

5. The payments to the Undertaking were made by cash or by cheques. Payments for electricity bills were made to the assistant cashiers working under the direct supervision of the appellant. The assistant cashier concerned, issued receipts in respect of the amounts and prepared a statement called, a collection sheet. The collection sheet along with the amounts covered by it was handed over to the appellant (Head cashier) who issued a receipt for the same and also made an entry to that effect on the collection sheet indicating his own receipt number and date. So far as the present case is concerned these collection sheets are 20 in number, namely, Exhs. 3/1 to 3/20.

6. The assistant cashier when he received the amounts by cheque entered them in a register called "Consumer Branch Cheque Register". The Consumer Branch Cheque Register' concerned in this case is from January 1956 to. November 1956, (Exh. 61).

7. The Head‑cashier (appellant) maintained a cash book in his own writing. All cash received and acknowledged by him from an assistant cashier and all cash payments (other than electricity bills directly received by the Head‑cashier) were entered in this Cash Register on the receipts side each receipt being entered separately and the entries mentioning the cashier from whom the amounts had been received and the respective collection sheets' under which they were received. In this case we are concerned with five such cash books Exhs. 46 to 50 . which are in the handwriting of the appellant.

8. The Consumer's Branch Cheque Register along with the cheques was sent to the Head‑cashier (appellant) who initialled each entry in the register and sent the register back keeping the cheque amounts. The Head‑cashier himself maintains a register called Head‑cashier's Cheque Register' Exh. 99, from 9th November 1955 to 15th December 1955. The Head‑cashier prepares duplicate challans' in respect of each cheque received from the assistant cashiers and enters them in the Head‑cashier's cheque register' and the same are sent either to the Resident Engineer or the Assistant Commercial Manager who signs the endorsements on the cheques and initials the entries in the Head -cashier's Cheque Register. Thereafter the cheque, the two duplicate challans with the Head‑cashier's Cheque Register are sent to the National Bank for collection. The Bank's clerk initials the relevant entry in the Head‑cashier's Cheques Register which is returned to the Head‑cashier. After the cheque amount has been collected by the bank, one copy of the challan called Receipted Challan' is sent to the Undertaking and the other copy is sent to the Treasury. It is only after the receipted challan has been received back by the Head‑cashier that the payment is treated as cash and receipts for such payments are issued to the person who has paid the amount by cheque, by the Head‑cashier or by his assistant. It is also after the receipted challan has been received that the Head‑cashier enters payments in his Cash Book'. The receipted challans in this case found from the Treasury Office are Exhs. 14 to 45. Some of their duplicates were recovered from the office of the Head‑cashier (appellant) by the police during the course of investigation.

9. The Head‑cashier enters in his "Cash Book" register on the receipt side, all the receipts and Brakes and carries over the grand total from day to day. After deducting the day's expenditure shown in the expenditure side of cash book he sends the balance, next morning, to the bank. For this purpose the Head‑cashier maintains a Treasury Remittance Book' in which he enters the amounts, and obtains initials of the bank clerk against the entries by way of acknowledgment. The remittance book is Exh. 138 in this case.

10. It is thus clear that it was the appellant who received all cash either through his assistant or himself. He also received cheques from his assistants and sent these cheques along with the duplicate challans entering them in his cheque register to the bank. He received back one copy of the receipted challan, that he had sent in duplicate, after the bank had collected the amount. It was the appellant who then made the relevant entries in his Cash Register. Thus there is no doubt that it was the appellant who received the amounts and disbursed them.

11. The modus operandi adopted for dishonestly misappro priating the amounts by the appellant was surprisingly simple and perhaps for that reason remained undetected till 1958. This can better be understood by reference to item 25 of Exh. 60. Exhibit 60 has been prepared by P. W. A. S. Farooqui and contains the various items of embezzlement, totalling Rs. 36,500, committed by the appellant. This corresponds to the analysis of Exh. 139/162 at page 118 of the paper book. The progressive total receipts at the opening of the day on 11‑2‑56 at page 129 of the cash book Exh. 46 is Rs. 79,575‑13‑3. The progressive total of the receipts at the close of the day as shown at page 131 of the cash book Exh. 46 is Rs. 85,232‑6‑0. In other words the total receipts on this date were Rs. 5,656‑8‑9. Of this amount of Rs. 5,656‑8‑0 the amount of receipts challans was Rs. 1,633‑1‑9 as shown in Exh. 46 i.e., the cash received was Rs. 4,023‑7‑0. This amount should have been sent to the bank on the next day but instead Rs. 3,423‑7‑0 were sent as per remittance book Exh. 138. The amount of Rs. 600 not deposited in the bank was misappropriated. This misappropriation was covered. by the manipulation of the accounts kept by the appellant with respect to item 25 of Exh. 60. The assistant cashier's cheque register Exh. 61 shows at Exh. 63 that cheque for Rs. 15‑5‑6 was sent to the Head‑cashier. The cheque register of the appellant Exh. 99 also shows as per Exh. 52 that he had received Rs. 15‑5‑6. The appellant prepared two challans in respect of this amount Exb. 97 (Exh. 20) and Exh. 83. Exhibit 97 was sent to the Treasury and shows the amount as Rs. 15‑5‑6 while Exh. 83 the receipted challan, received by the appellant back from the bank shows the amount Rs. 615‑5‑6. It is obvious that the appellant has added figure 6 in the copy of the receipted challan Exh. 83 received by him. The appellant then made an entry in Exh. 46 his cash book which shows that this entry is for Rs. 615‑5‑6 with respect to the same receipted challan received on 11‑2‑56 i.e., under item 25 of Exh. 60.

12. I have got prepared a statement myself marked A attached to the judgment which shall be deemed to be a part of this judgment. It corresponds to Exh. 60 prepared by Mr. Farooqui for the learned Special Judge. A look at Exh. 60 or at the statement marked by me clearly shows that the appellant has by falsifying the receipted challans deposited less amount . to the extent of the forged amount in the respective challans in the bank on the respective dates. He thus criminally misappropriated the amount of cash received by him that day and showed by falsifying the receipted challans that the amount had been credited in the bank under the forged receipted challan and thus criminally misappropriated the amount to the extent of forgery. The total of 43 items in the receipted challans forged by him comes to Rs. 36,500 vide the statements Exhs. 139 to 162 and Exh. 60, and also statement marked A, prepared by me. The letter Exh. 59 from the Treasury Officer also mentions the amount of defalcation made by the appellant. This also shows the amount of defalcation to be Rs. 36,500.

13. The appellant does not deny his having received the Amount irl cash from his Assistant nor lie denies the receipt of the cheques and the original amounts of the cheques or his signatures on the collection sheets, or the cheque books of his assistants. He also does not deny he maintained his cheque book register and cash register and the Remittance Register. He also does not deny the entries made in the above registers or entries in the duplicate challans as originally seen by him on 31 treasury challans Exhs. 14 to 45. He says that figures added to the original entries made by him in the receipted challans recovered from his office are not in his hand. This explanation is futile. Since the cash book is maintained by him and the cash book does contain the additional amounts added to the receipts challans by forgery, no one but the appellant who maintained the books could have made these forgeries. There is no charge of forgery against the appellant, however. The fact remains that the appellant had received on the particular days certain amount in cash. He had received certain receipted challans back also. No one else besides the appellant was interested in forging those challans since the original amount had been realised by the bank already. On the supposition that the appellant had received back a forged receipted challan the appellant would (at once by striking the balance next morning, when he was supposed to deposit the surplus cash in his hand in the bank) came to know that the cash in hand was much more than what his accounts showed. He could also by reference to his corresponding entry in the cheque book find out that the cheque sent by him for collection was of a lesser amount than the duplicate challan he had received. All additions in respect of challans have happened after the appellant had received the receipted challan back from the Treasury. There are in all 31 such cases. All this cannot be accidental or un‑intentional. There was certainly a dishonest intention behind them. The design was to dishonestly misappro priate the amounts thus forged in the receipted challans by adding figures to the receipted challans to the extent the cash received was misappropriated and not credited in the bank by the appellant. P. Ws. Farooqui and Muhammad Hasan are definite that the forgeries in the receipted challans are in the hand of the appellant. Mr. Farooqui was the Resident Engineer. He had seen the appellant's hand‑writing since he had to sign the cheque book register and sign the endorsements on the cheques made by the appellant. Similarly Muhammad Hasan was Assistant Commercial Manager and had an opportunity to sign the books or the endorsements on the cheques and also knew the hand‑writing of the appellant very well. The appellant examined Abdul Rashid, a witness given up by the prosecution. Abdul Rashid has stated in his evidence that he was in the Undertaking from 19th January 1956 to 2nd June 1958. In cross‑examination he said that he would not be able to identify the hand‑writing of the appellant but when shown Exhs. 8 and 4 he thought it appeared to be of the appellant but was not sure. This D. W. was examined on the point that there was sufficient check on the appellant's work.

I have carefully considered the different items of misappro priation and I find that the modus operandi is the same in each case, The appellant has also not denied that less amount was credited than was received as per entries in the cash book Exh. 48 and the remittance register Exh. 128. His explanation only is that he has not misappropriated the amounts.

14. I have also considered the objection taken by the appellant in his memo. of appeal against the propriety of sanction Exh. 168. No such objection appears to have been taken before the trial Court. The objection to the validity of sanction to prosecute cannot be allowed to be agitated at the appellate stage. S. M. K. AM v. The Crown (P L D 1953 F C 189) and F. D. Costa v. The State (P L D 1959 Dacca 744). Once it is proved that a sanction has been given, the presumption shall be that it has been regularly given. Under section 6 sub‑clause (5) of the Pakistan Criminal Law Amendment Act XL of 1958, previous sanction of the appropriate Government' is a pre‑requisite for the prosecution of a public servant for an offence under the Act. Under section 2 (a) of the Act the Provincial Government shall be the "appropriate Government" in this case. Under section 12 (2) the appropriate Government may frame rules which may provide for "(a) authorisation of persons to exercise powers to sanction prosecution on behalf of appropriate Government in respect of various groups of public servants". Under No. C. B. 5‑75/56 dated the 14th April 1956, rules were framed by the appropriate Government under the Pakistan Criminal Law Amendment Act, 1948. Under rule 3 the power to sanction the prosecution of a public servant was given on behalf of the Provincial Government to an officer competent to remove such public servant from office. Under Notification No. Integ‑15/6‑57 dated the 25th October 1958, in exercising the powers conferred on him by clause (1) of Article 2 of the Laws (Continuance in Force) Order, 1958, read with sub clause (b) of clause (2) of Article 182 of the late Constitution, the Governor of West Pakistan framed rules called "the Electricity Department Delegation of Powers Rules, 1958" wherein, under serial No. 4, "All Non‑Gazetted Ministerial and Technical Establishments borne on Regional Cadre" could be dismissed by Additional Chief Engineer/Deputy Chief Engineer/ Superintending Engineer. The sanction in this case is accorded by the Deputy Chief Engineer Electricity on 13‑8‑59. The perusal of the sanction order shows that the sanctioning authority had applied its mind to the facts involved in the case and gave the sanction under sub‑clause (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958.

Another objection taken in the memo. of appeal by the appellant is to the joinder of charges. As has been shown above there are 31 items which go to make up the amount of Rs. 36,500 with which the appellant was indicted in the rubakari Exh. 1. Section 222(2), Cr. P. C. is a clear authority for this purpose It provides that

"When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234.

Provided that the time included between the first and last of such dates shall not exceed one year.

Vide also, Manzoor Elahi v. The State (P L D 1960 Kar. 607) and Sailendra Prasad Bose v. Crown (P L D 1952 Dacca 81). The rubkari Exh. 1 shows that the charge is within the provisions of section 222(2), Cr. P. C. as authorized by law.

15. The appeal is dismissed. Under the law the imposition of fine at least to the extent of defalcation is essential. The punishment awarded is not severe looking to the magnitude of the amount criminally misappropriated.

K. B. A.

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