(a)Penal Code (XLV of 1860)--
---Ss.468 & 471--Criminal misappropriation--Opinion of handwriting expert, value of--Accused as Manager, of Bank allegedly forging cheque by using unused cheque from surrendered cheque book by an account-holder after closing account--Sum of Rs.2,000 withdrawn from account by allowing temporary overdraft and passing cheque in capacity of Manager--Signatures of account-holder on cheque found tallying with specimen signatures of accused by handwriting expert--No corroboration of opinion of expert forthcoming--Opinion of handwriting expert, held, required further corroboration--Offence of forgery punishable under S.468, PPC was not proved--Accused acquitted of charge in circumstances.--[ Evidence].
(b)Penal Code (XLV of 1860)--
---S.471--Using forged cheque as genuine--Cheque found to be passed and cancelled by accused as Manager during audit--Amount of cheque not shown to be received by accused--Accused acquitted from charge under 5.408--Charge under S.471, held, had not been brought home to accused for insufficient evidence--Accused acquitted of charge in circumstances.
Nooruddin Sarki for Appellant.
Abdul Sattar for the State.
Date of hearing: 17th September, 1985.
MANZOOR AHMAD VS THE STATE1987 M L D 1615[Karachi]Before Abdul Qadeer Chaudhry and Mamoon Kazi, JJMANZOOR AHMAD--AppellantVersusTHE STATE--RespondentCriminal Appeal No.61 of 1985, decided on 30/01/1986.
JUDGMENT
MAMOON KAZI, J. --This appeal is directed against the judgment passed by the Presiding Officer, Special Court of Sind (Banks), Karachi, dated 31-3-1985, whereby appellant Manzoor was convicted under section 468, P.P.C. and sentenced to suffer R.I. for four years and to pay a fine of Rs.10,000 and in default of payment of fine to suffer further R.I. for one year. The appellant was also, convicted under section 471 P.P.C. and sentenced to suffer R.I. for one year and to pay a fine of Rs.5,000 and in default of payment of fine to suffer further R.I. for three months. Both the substantive sentences awarded under section 468 and section 471, P.P.C. respectively were to run concurrently.
The appellant was also charged for committing offence under section 408 P.P.C. but was acquitted by the learned Presiding Officer of the said charge.
The appellant was acquitted by us by a short order the reason '` for which were to be recorded later. The reasons are as follows: -
The case of the prosecution against the appellant is that the appellant was serving as Manager in United Bank Limited, Tilak Incline Branch, at Hyderabad, where one Mst.Sher Bano (P.W-6) had a Saving Account No.1956. On 12th April, 1974, the appellant used cheque No.414166 from cheque book of Mst.Sher Bano which she hadi surrendered with some unused cheques as she had closed her account in the bank. It is alleged that by using the aforesaid cheque and by, forging the signature of Mst. Sher Bano thereon the appellant withdrew a sum of Rs.2,000 from the said account by allowing temporary overdraft and passing the cheque for payment. It was further alleged that after collecting the aforesaid amount of Rs.2,000 from the bank the appellant criminally misappropriated the same, thus causing wrongful loss to the bank.
A written complaint in respect of the offence was received from Mazhar Hussain Khan, Manager, United Bank Limited, Tahk Incline Branch, Hyderabad by P.W-8, Abdul Ghafoor, Inspector, F.I.A., Hyderabad on the basis of which the first information report was prepared. The case was thereafter investigated by Abdul Ghafoor who recorded statement of the complainant and other prosecution witnesses and also secured the relevant documents. The specimen signatures of Mst.Sher Bano and the appellant were also taken before a Magistrate and later forwarded to the handwriting expert for comparison. After completion of the investigation the appellant was charge sheeted before the Special Judge (Anti-Corruption). Central, Karachi, from where the case was transferred to the Special Court (Banks) on promulgation of the Ordinance IX of 1984.
The prosecution in support of its case examined eight witnesses. P.W.1 Mazhar Hussain was also examined by the appellant in his defence.
The appellant in his statement before the trial Court denied the allegations made against him. According to him, he had been involved in the case falsely due to enmity with one Saleem Malik, the 1617
Bank's Zonal Chief, on account of his forming an association of Hyderabad Zone in 1973.
The learned Presiding Officer after considering the evidence of the witnesses came to the conclusion that the appellant had forged the signatures of Mst. Sher Bano on the cheque in question and further passed the cheque for payment by allowing temporary overdraft, in the closed account of Mst. Sher Bano. He, therefore, found the appellant guilty of offences under sections 468 and 471 of the P.P.C. He however found the appellant not guilty under section 408 of the P.P.C. as according to him the prosecution had failed to prove that the appellant had himself received the payment against the cheque in question.
The first question is, whether the accused had forged' the signature of P.W. Mst. Sher Bano on the cheque. In this respect there is evidence of Mst. Sher Bano and Ahmad Saeed Rizvi (P. W-7). Both of them have stated that the cheque in question was surrendered by Mst. Sher Bano through Ahmad Saeed Rizvi, her son, to the appellant who was then the Manager of the United Bank Limited. Tilak Incline Branch, Hyderabad. They further deposed that Mst.Sher Bano had not withdrawn any amount through the cheque in question and the signature thereon was forged. The prosecution have also examined Khalid Rasool (P.W.-5) who was the handwriting expert and to whom the signature on the cheque alongwith specimen signatures of Mst.Sher Bano and the appellant had been sent for comparison. This witness, according to his report, did not find the signatures of Mst.Sher Bano on the cheque to be genuine. The witness also found that the signature on the cheque tallied with the specimen handwriting of the appellant. This is all the evidence that was produced by the prosecution in support of its plea qua the forging of the signature of Mst.Sher Bano on the cheque.
This evidence, we are afraid, is not sufficient to bring home guilt to the appellant. The evidence of Mst. Sher Bano and Ahmad Saeed Rizvi only shows that the signature on the cheque was forged. There is no evidence however to connect the appellant with the alleged forgery except that of the handwriting expert. It hardly, needs to be mentioned here, that the handwriting expert only gives his opinion which requires further corroboration. There being no such corroboration available to show that the appellant had forged the signature on the cheque, we are afraid, he cannot be found guilty of the offence of forgery. We are, therefore, of the view that charge under section 468, P.P. C. has not been proved against the appellant.
The next question is whether the appellant used the forged cheque as genuine. On this point, besides the evidence of Mst. Sher Bano (P.W.-6), and Ahmad Saeed Rizvi (P.W.-7), there is evidence of Mazhar Hussain (P.W-1), Abdul Qayyum (P.W.2), Abdul Mananl (P-W-3) and Abdul Sattar (P.W-4). According to the evidence of these witnesses, during the audit of the bank's accounts, it was revealed that cheque No.414166 for Rs.2,000 was passed by the appellant when he was working as Manager in the said Branch. The evidence further shows that the cheque in question had been cancelled and passed by the appellant in his capacity as Manager. This evidence again is not sufficient in our opinion, to bring home the charge under section 471, P.P.C. to the appellant. The prosecution has failed to prove that the amount of Rs.2,000 in respect of fraud is alleged to have been committed was received by the In fact, the learned Presiding Officer has acquitted the appellant the charge under section 408 of P.P.C. How the learned Officer then reached the conclusion that the offence under. 471, P.P.C. was committed by the appellant can hardly be understood. We are, therefore, of the considered view that the prosecution failed to establish the charge under section 471, P.P.C. against the appellant.
In view of the aforesaid, we set aside the conviction under sections 468 and 471 P.P.C. and sentence awarded to the appellant and acquit the appellant.
S. A./M-204/K??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.
(a)Penal Code (XLV of 1860)--
---Ss.468 & 471--Criminal misappropriation--Opinion of handwriting expert, value of--Accused as Manager, of Bank allegedly forging cheque by using unused cheque from surrendered cheque book by an account-holder after closing account--Sum of Rs.2,000 withdrawn from account by allowing temporary overdraft and passing cheque in capacity of Manager--Signatures of account-holder on cheque found tallying with specimen signatures of accused by handwriting expert--No corroboration of opinion of expert forthcoming--Opinion of handwriting expert, held, required further corroboration--Offence of forgery punishable under S.468, PPC was not proved--Accused acquitted of charge in circumstances.--[ Evidence].
(b)Penal Code (XLV of 1860)--
---S.471--Using forged cheque as genuine--Cheque found to be passed and cancelled by accused as Manager during audit--Amount of cheque not shown to be received by accused--Accused acquitted from charge under 5.408--Charge under S.471, held, had not been brought home to accused for insufficient evidence--Accused acquitted of charge in circumstances.
Nooruddin Sarki for Appellant.
Abdul Sattar for the State.
Date of hearing: 17th September, 1985.
JUDGMENT
MAMOON KAZI, J. --This appeal is directed against the judgment passed by the Presiding Officer, Special Court of Sind (Banks), Karachi, dated 31-3-1985, whereby appellant Manzoor was convicted under section 468, P.P.C. and sentenced to suffer R.I. for four years and to pay a fine of Rs.10,000 and in default of payment of fine to suffer further R.I. for one year. The appellant was also, convicted under section 471 P.P.C. and sentenced to suffer R.I. for one year and to pay a fine of Rs.5,000 and in default of payment of fine to suffer further R.I. for three months. Both the substantive sentences awarded under section 468 and section 471, P.P.C. respectively were to run concurrently.
The appellant was also charged for committing offence under section 408 P.P.C. but was acquitted by the learned Presiding Officer of the said charge.
The appellant was acquitted by us by a short order the reason '` for which were to be recorded later. The reasons are as follows: -
The case of the prosecution against the appellant is that the appellant was serving as Manager in United Bank Limited, Tilak Incline Branch, at Hyderabad, where one Mst.Sher Bano (P.W-6) had a Saving Account No.1956. On 12th April, 1974, the appellant used cheque No.414166 from cheque book of Mst.Sher Bano which she hadi surrendered with some unused cheques as she had closed her account in the bank. It is alleged that by using the aforesaid cheque and by, forging the signature of Mst. Sher Bano thereon the appellant withdrew a sum of Rs.2,000 from the said account by allowing temporary overdraft and passing the cheque for payment. It was further alleged that after collecting the aforesaid amount of Rs.2,000 from the bank the appellant criminally misappropriated the same, thus causing wrongful loss to the bank.
A written complaint in respect of the offence was received from Mazhar Hussain Khan, Manager, United Bank Limited, Tahk Incline Branch, Hyderabad by P.W-8, Abdul Ghafoor, Inspector, F.I.A., Hyderabad on the basis of which the first information report was prepared. The case was thereafter investigated by Abdul Ghafoor who recorded statement of the complainant and other prosecution witnesses and also secured the relevant documents. The specimen signatures of Mst.Sher Bano and the appellant were also taken before a Magistrate and later forwarded to the handwriting expert for comparison. After completion of the investigation the appellant was charge sheeted before the Special Judge (Anti-Corruption). Central, Karachi, from where the case was transferred to the Special Court (Banks) on promulgation of the Ordinance IX of 1984.
The prosecution in support of its case examined eight witnesses. P.W.1 Mazhar Hussain was also examined by the appellant in his defence.
The appellant in his statement before the trial Court denied the allegations made against him. According to him, he had been involved in the case falsely due to enmity with one Saleem Malik, the 1617
Bank's Zonal Chief, on account of his forming an association of Hyderabad Zone in 1973.
The learned Presiding Officer after considering the evidence of the witnesses came to the conclusion that the appellant had forged the signatures of Mst. Sher Bano on the cheque in question and further passed the cheque for payment by allowing temporary overdraft, in the closed account of Mst. Sher Bano. He, therefore, found the appellant guilty of offences under sections 468 and 471 of the P.P.C. He however found the appellant not guilty under section 408 of the P.P.C. as according to him the prosecution had failed to prove that the appellant had himself received the payment against the cheque in question.
The first question is, whether the accused had forged' the signature of P.W. Mst. Sher Bano on the cheque. In this respect there is evidence of Mst. Sher Bano and Ahmad Saeed Rizvi (P. W-7). Both of them have stated that the cheque in question was surrendered by Mst. Sher Bano through Ahmad Saeed Rizvi, her son, to the appellant who was then the Manager of the United Bank Limited. Tilak Incline Branch, Hyderabad. They further deposed that Mst.Sher Bano had not withdrawn any amount through the cheque in question and the signature thereon was forged. The prosecution have also examined Khalid Rasool (P.W.-5) who was the handwriting expert and to whom the signature on the cheque alongwith specimen signatures of Mst.Sher Bano and the appellant had been sent for comparison. This witness, according to his report, did not find the signatures of Mst.Sher Bano on the cheque to be genuine. The witness also found that the signature on the cheque tallied with the specimen handwriting of the appellant. This is all the evidence that was produced by the prosecution in support of its plea qua the forging of the signature of Mst.Sher Bano on the cheque.
This evidence, we are afraid, is not sufficient to bring home guilt to the appellant. The evidence of Mst. Sher Bano and Ahmad Saeed Rizvi only shows that the signature on the cheque was forged. There is no evidence however to connect the appellant with the alleged forgery except that of the handwriting expert. It hardly, needs to be mentioned here, that the handwriting expert only gives his opinion which requires further corroboration. There being no such corroboration available to show that the appellant had forged the signature on the cheque, we are afraid, he cannot be found guilty of the offence of forgery. We are, therefore, of the view that charge under section 468, P.P. C. has not been proved against the appellant.
The next question is whether the appellant used the forged cheque as genuine. On this point, besides the evidence of Mst. Sher Bano (P.W.-6), and Ahmad Saeed Rizvi (P.W.-7), there is evidence of Mazhar Hussain (P.W-1), Abdul Qayyum (P.W.2), Abdul Mananl (P-W-3) and Abdul Sattar (P.W-4). According to the evidence of these witnesses, during the audit of the bank's accounts, it was revealed that cheque No.414166 for Rs.2,000 was passed by the appellant when he was working as Manager in the said Branch. The evidence further shows that the cheque in question had been cancelled and passed by the appellant in his capacity as Manager. This evidence again is not sufficient in our opinion, to bring home the charge under section 471, P.P.C. to the appellant. The prosecution has failed to prove that the amount of Rs.2,000 in respect of fraud is alleged to have been committed was received by the In fact, the learned Presiding Officer has acquitted the appellant the charge under section 408 of P.P.C. How the learned Officer then reached the conclusion that the offence under. 471, P.P.C. was committed by the appellant can hardly be understood. We are, therefore, of the considered view that the prosecution failed to establish the charge under section 471, P.P.C. against the appellant.
In view of the aforesaid, we set aside the conviction under sections 468 and 471 P.P.C. and sentence awarded to the appellant and acquit the appellant.
S. A./M-204/K??????????????????????????????????????????????????????????????????????????????????? Appeal accepted.
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