State vs Mohd. Akbar Shah

Syed Bashir-Ud-Din, J.—Four Challans were registered against respondent/accused at Police Station Daver Gurez on allegation that as

Manager of J&K Bank Branch Daver Gurez during 30-7-1975 to 31-7-1978 he embezzled various amounts of the creditors of the Bank by

falsification of accounts and cheating. The amounts were misappropriated. Acts of criminal breach of trust were attributed to accused. F.I.R. 10,

14, 16 and 17 were registered. Investigation culminated in sending up accused to stand trial. Charges were framed against accused u/s

409/420/467, R.P.C. Accused pleaded not guilty and opted for trial. Prosecution evidence was recorded. The trial Court/Judicial Magistrate,

Baramulla by a common judgment dated 2-9-1985 acquitted the accused of the charges. Against the acquittal order this appeal has been

preferred.

The judgment and order of acquittal is impugned mainly on the ground that the trial Magistrate did not apply its mind to the facts and

circumstances of the case. The judgment is not recorded as envisaged by law. The evidence has not been even discussed. The appeal has been

admitted way back on 18-10-1991. At the outset Government Advocate concedes that there is hardly any evidence or material to sustain the

conviction. He also canvasses that having regard to the age and the fact-situation of the case, no fruitful purpose could be served to keep the

appeal on board.

On request of the counsel for the parties, the matter is heard and record examined. We have examined the evidence minutely. We find that the

evidence is not conclusive. Though some witnesses have given evidence which is inculpatory in patches, but even so, their depositions are open

ended. Yet other witnesses statements are more exculpatory than inculpatory in nature. The cases are based mainly on the statement of Sh. P.N.

Khosa, the then Regional Manager of the Bank, who conducted the inspection of the Daver Gurez Branch of the Bank. It speaks more of

administrative lapses than criminal act of misappropriation, cheating etc. There is evidence to show that the accused remitted the money/interest,

but the same was not accepted on the ground that the currency notes were torn out. Charging of interest on overdraft accounts allegedly not

crediting the same under relevant head of the Bank, in FIR 16/78 is not positively and conclusively established. The record as also the oral

evidence does not show that the amount was misappropriated and that the petitioner committed criminal breach of trust thereto, moreso, when it is

in evidence that the cashier and other employees of the Bank were in-charge of records and responsible for the entries. Similarly, the alleged

misappropriation of Rs. 4956/- deposited by ""Gurez Supply and Sales Co-operative Societies"" in their current deposit Branch of the Bank, by

accused, in FIR 17/78, is not proved on record. The Ledger and Pass Book entries are existing. The other record has not come forth to

substantiate the charge. Then the other employees of the Bank were in-charge of records and responsible for making entries, in absence of any

expert evidence as to the handwriting, signature and relevant entries on records, accused cannot be said to have dishonestly cheated,

misappropriated and converted to his own use the amount when cogent and credible evidence has not forthcome on record.

Against the charge of short remittance of the amount in FIR 10/78, there is evidence on record to show that the accused in fact remitted the

whole amount, but the amount alleged to have been misappropriated by the accused was returned to him for the reason that the amount comprised

of torn out currency notes not acceptable to the Bank. The evidence on record does not in any case indicate misappropriation, cheating of the

amount.

In all the cases, almost same set of witnesses have been examined. Most of the witnesses have spoken of lack of knowledge in the matter. Bank

employees have given statements based on records, but these statements leave much of the incriminating allegations uncovered. Number of

witnesses referred in impugned order have not supported the prosecution case. Mohd. Khalil Lone; Abdul Karim Shah; Mohd. Ramzan Mir;

Mohd Khalik Parray; Ghulam Mohd. Kaloo; Mohd Sultan Dar; Din Lone; Abdul Rehman Kaloo; Habib Lone and S. Mesher Singh have not at all

inculpated the accused. Their depositions are either not supporting the prosecution case or are quite marginalised, disjunctive and useless when

considered in the context of the offence/charges. The evidence of witnesses on record is not sufficient, cogent and inculpatory enough to sustain the

guilt of commission of offence with which accused stands charged. The appeal cannot be sustained on merits.

However, before parting, we cannot but observe that deciding four cases when separate trials have been ordered and held in these cases, by a

common cryptic order is not in conformity with judicial standards and legal requirements of a judgment and order of acquittal. This practice has to

be deprecated. Since the then Judicial Magistrate, Baramulla who has tried the cases (Mr. Mohd. Arfan) has since died and the judgment and

order of acquittal of the said Magistrate has not caused prejudice to either of the parties, as even so conceded by Mr. Gh. Mustaffa, GA,

therefore, no useful purpose would be served by remitting the case(s) for fresh trial. This is moreso, as we have examined and appreciated the

evidence, as above, from the standpoint of guilt or otherwise, of the accused in these cases.

In the result, this appeal is dismissed with the observation that the order of acquittal and dismissal of this appeal shall not stand in the way of the

Bank, if they proceed to take any other action available to the Bank under law, against the accused, said Bank official(s).