Abdul Jalil Sarder Vs. The State

Appellate Division Cases

(Criminal)

PARTIES

Abdul Jalil Sarder ………………………………………….Appellant

Vs

The State…………………………………………………… Respondent

JUSTICE:

Md. Ruhul Amin J

K. M. Hasan J

JUDGEMENT DATE: 12th April, 2003

section 409 of the penal code read with section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947). section 342 of the Code of Criminal Procedure

Misappropriation of 8 metric tons of wheat as has not been established beyond reasonable doubt nsequently the appellant is entitled to the benefit thereof.

It is the case of the appellant and 2 other accused persons that they completed the project upon utilization of entire quantity of wheat lifted and that 3r” Master roll was submitted to the project Implementation officer.

The Master roll so submitted, as claimed by the appellant and not discarded by the High Court division, with the project plementation officer, who was cited as witness but not examined and consequent thereupon as with certainty it cannot be said that in the said master roll utilization of 31 metric tons of wheat was not shown the High Court Division, in our opinion, was in error in not taking into consideration the prosecution case and defance of the appellant in correct perspective and thereupon in holding that prosecution was able to establish at least partial isappropriation of wheat i. e. 8 metric tons of what by the appellant …………(13)

Criminal Appeal No.5 of 1998 (From the Judgment and Order dated April 28. 1998 passed by the High Court Division in Criminal Appeal No. 1039 of 1993)

Mr. Anisul Huq, Advocate instructed by Mr. Md. Nawab Ali, Advocate-on record………………… For the Appellant

Mr. A. H. Amin, Advocate-on-record………For the Respondent

JUDGMENT

1. Md Ruhul Amin ,1 :- The instant appeal, by leave, is against the judgment and order dated April 28. 1998 of a Single Bench of the High Court Division in Criminal Appeal No. 1039 oM993 . The High Court Division by the aforesaid judgment dismissed the appeal of the present appellant upon modification of sentence of 3 years to one year and the fine of Tk. 52,000/- to TK. 39,000/-. in default to suffer rigorous imprisonment for 3 months and acquitted two (2) other appellants. The appellant was convicted under section 409 of the penal code read with section 5(2) of the Prevention of Corruption Act. 1947 (Act II of 1947) and was sentenced only under section 409 of the Penal Code.

2. Prosecution case, in short, is that appellant was the chairman of project committee for the development of the field of a school and for filling up of a pond and a ditch, the other 2 accused (since acquitted) were members of the Project committee. It has been alleged by the prosecution that appellant lifted 69 metric tons (MT) of wheat in three equal installments of 23 MTs and submitted Master rolls for the 1st and 2 n” installments after completing work fo 34 MTs of wheat. The appellant, as the prosecution case is, did not file any Master rill for the remaining 31 MTs of wheat worth TK. 1, 55,000/- and he and his associates is appropriated the said quantity of wheat.

3. The appellant and others were put on trial to answer the acquisition under Section 409/109 of the Penal Code read with Section 5(2) of the Act II of 1947.

4. The defiance of the appellant and the others (Since acquitted) was that entire work of the project was completed upon utilizing the wheat lifted and the third Master roll was also submitted to the Project Implementation officer (PIO) and the same was deliberately withheld by the prosecution.

5. Prosecution in all examined 6 witnesses of whom 4 were official witness including the investigating officer and the 2 others (P. Ws. 3 and 4) were the Persons connected with the implementation of the project.

6. The trial Court on consideration of the evidence on record upon arriving at the finding that the accused persons did not submit the 3 Master roll show ing utilization of entire wheat lifted by them and could not account lor 3 1 MTs of wheat convicted the appellant under Section 409 of the Penal Code read with Section 5(2) of act II of 1947 and 2

others under Section 409/109 read with Section 5(2) of Act II of 1947 and sentenced all of them to 3 years rigorous imprisonment and to pay fine of TK. 52,000/- each, in default to suffer rigorous imprisonment for further one year. No separate sentence under section 5(2) of Act II of 1947 was passed.

7. On appeal by the convicts the learned Judge of the High Court Division noticed the case of the prosecution that only 2 Master rolls were submitted and the 3r c Master rill was not submitted and the defiance of the accused that 3rd Master roll was not submitted and the defense of the accused that 3rd Master rolls was also submitted to the project Implementation officer (PIO). In the background of aforesaid case of the prosecution and the defense as the PIO was not examined the High Court Division observed “it cannot be said that the prosecution proved the fact that the 3rd Master rill was not submitted and that the work of the 3rc’ instalment of wheat was not done” and the prosecution could not prove beyond reasonable doubt as to whether the work of the 3rd instalment was completed or not as well as prosecution could not prove beyond  reasonable doubt that 31 metric tons of wheat was misappropriated, but has proved this much by the admitted documentary evidence that the work of 8 metric tons of wheat was not done or completed. Thereupon the High Court Division proceeded to consider how much quantity of wheat in the 2 Master rolls shown to have been utilized and noticed that in the aforesaid 2 Master rolls utilization of 38 Metric tons was shown and in that context

was of the view that there was no explanation about the remaining 8 Metric tons of wheat.

8. The High Court Division considered the case of the other 2 appellants who were found guilty by the learned special .Judge under Section 409/100 read with Section 5(2) of Act II of 1947 and observed that prosecution could not prove the roll played by the said 2 convicts as members of the project committee and prosecution case of misappropriation of wheat has not been wholly proved but only proved to the extent of 8 metric tons of wheat and the charge of misappropriation has been proved only partially against the appellant No. 1.

9. Leave has been granted to consider the submissions that the learned Judge of the High Court Division having himself found that the prosecution could not prove the charge of misappropriation of 31 metric tons of wheat as alleged by it the conviction and sentence of the appellant ought to have been set aside, that the High Court Division Acted illegally in convicting the appellant on a 3rd case of alleged misappropriation of 8 metric tons of wheat which was not the case of the prosecution, thai the appellant could not be convicted in any case for misappropriation of 8 metric tons of wheat since the learned Judge found that the prosecution could not prove its case in respect of alleged case of misappropriation of 31 metric tons of wheat which includes 8 metric tons not accounted for in the first and second master Rolls (for 38 metric tons) which were admittedly submitted and the conviction as upheld by the High Court Division is not sustainable because the same is based on a third case or a new case and at any rate upon a misconception of facts and contrary to the findings of the learned Judge of the High Court Division.

10. Prosecution case against the appellant at the trial was that he in total withdrew 69 metric tons of wheat for development of school field and for filling up a pond and a ditch, but without completing the work of the Project misappropriated 31 metric tons of wheat. At the time of examination of the appellant under section 342 of the Code of Criminal Procedure prosecution case that was placed for his reply vvas that in 3 equal instilments he withdrew 69 metric tons of wheat for development of the school field and to fill up a pond and a ditch, but without ompleting the project misappropriated 31 metric tons of wheat. It was also the ease of the prosecution that no master roll for the 31C instalmt vvas submitted to the Project Implementation Officer. The defiance of the appellant and 2 other accused persons was that work of the entire Project was completed with the wheat which was lifted and the 3rd Master roll was also submitted to the project Implementation Officer which was deliberately withheld by the prosecution.

11. The learned Counsel for the appellant submitted that appellant was called upon to answer the charge of is appropriation of 31 metric tons of wheat out of total 69 metric tons of wheat which he received for completion of the project. As against the said allegation it was the case of the appellant that he completed the project upon utilizing the entire wheat lifted by him and that submitted 3 master roll with the Project Implementation officer showing utilization of entire quantity of wheat. It may be mentioned that project Implementation officer, a government functionary, was cited as witness in the prosecution report, but no explanation was offered for not examining him. In that state of the matter the High Court Division observed that prosecution failed to prove beyond reasonable doubt as to whether the work of the 3″^ installment of wheat vvas completed of not and further observed that prosecution could not prove beyond reasonable doubt that 31 metric tons of wheat was misappropriated by the appellant and his associates. But the High Court division in the background of the Master rolls (2) submitted show ing utilization of 38 metric tons of wheat out of total 46 metric tons of wheat held though prosecution could not prove misappropriation of 3 1 metric tons of wheat, but established misappropriation of 8 metric tons of wheat and thereupon maintained conviction of the appellant. It has been submitted by the learned Counsel for the appellant that P .Ws. 3 and 4. members of the Union Council, who were also the members of the project committee and signed 1st and 2nd Master roll, specifically stated that the work of the project was completed and that being the evidence as regard completion of the project and consequent thereupon as the logical conclusion could be drawn that the project was completed upon utilization of the whole quantity of wheat lifted in 3 installments, as such the High Court division was in error in maintaining conviction of the appellant only because in the two Master rills utilization of the entire quantity of wheat received in 1st and 2nd installmts was not shown. The learned Counsel for the appellant has also submitted that since 3rd Master roll submitted by the appellant was withheld by the prosecution and as such as it could not be established by the prosecution that utilization of wheat of 3 installment and balance quantity of the other two installments was not shown in the 3rd Master roll filed with the project Implementation officer, who being a witness cited in the prosecution report, was withheld without explanation the High Court Division was in etTor in maintaining conviction of the appellant basing its decision of the condition in the undertaking given by the appellant that Master roll for each installment would be submitted showing utilization of entire quantity upon discarding the case of the appellant that he submitted the 3rd Master roll showing utilization of the entire quantity of wheat received in 3 installments. Since no material has been placed by the prosecution before the Court to establish that work of the project done by the appellant was surveyed finally and thereupon it was found that the project remained incomplete or inother words entire work was not completed upon utilization of wheat received in 3 installments and on the contrary it having been deposed by P. Ws. 3 and 4 that work of the project was completed in our view the High Court Division was in error in maintaining conviction of the appellant on the view that work for 8 metric tons of wheat was not accounted for or in other words of being of the opinion that prosecution proved case of misappropriation of 8 metric tons against the appellant. It has already been mentioned that appellant and 2 other accused persons were called upon to answer the acquisition of misappropriation of 31 metric tons of wheat out of 69 metric tons of wheat. It is the case of the appellant and 2 other accused persons that they ompleted the project upon utilization of entire quantity of wheat lifted and that 3rd Master roll was submitted to the project Implementation officer. The Master roll so submitted, as claimed by the appellant and not discarded by the High Court division, with the project Implementation officer, who was cited as witness but not examined and consequent thereupon as with certainty it cannot be said that in the said master roll utilization of 31 metric tons of wheat was not shown the High Court Division, in our opinion, was in error in not taking into consideration the prosecution case and defance of the appellant in correct perspective and thereupon in holding that prosecution was able to establish at least partial misappropriation of wheat i. e. 8 metric tons of what by the appellant.

12. It has been submitted by the state since appellant did not account for 8 metric tons of wheat as per condition in the undertaking in the two Master rolls and as such the High Court Division has quite legally found the appellant guilty of misappropriation 8 metric tons of wheat. In the background of the claim of the appellant, which was not discarded by the High Court Division, that 3 Master roll was submitted to the project Implementation officer, who was not examined in the case without offering explanation by the prosecution, nor the Master roll was brought on record, and for that as probability of showing utilization of wheat the 3™ installment and the left over quantity of earlier 2 installments could altogether be not ruled out ol with certainty as it cannot be said that there was no such thing in the said 3rc’ Master roll and consequent thereupon as doubt remains as to whether 8 metric tons of wheat was in fact misappropriated of not the aforesaid submission of the state appears to be not well founded. In the afore state of the matter misappropriation of 8 metric tons of wheat as has not been established beyond reasonable doubt consequently the appellant is entitled to the benefit thereof.

13. In the background of the discussions made hereinabove the appeal is allowed and the conviction of the appellant under Section 409 of the Penal Code read with Section 5(2) to Act II of 1947 is set aside and he is acquitted of the charges leveled against him. The appellant is discharged from his bail bond.

Ed.

Source : I ADC (2004), 9.

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