Appellate Division Cases
Mahbubur Rahman …………………………………………………..Petitioner
The State, represented by the Deputy Commissioner, Dhaka…….. Respondent
Syed J. R. Mudassir Husain CJ.
Mohammad Fazlul Karim J.
M. A. Aziz J.
Amirul Kabir Chowdhury J.
Date of Judgment
1st August 2004
The Penal Code (XLV of I860), Sections 201, 409, 467, 468.
Important part of the evidence of such important witness has not been denied nor even there is any cross-examination on that point. There is nothing on record to disbelieve the evidence of witnesses including aforesaid P.W. 1. On perusal of the impugned judgment we find that the trial court as well as the High Court Division considered the evidence on
record and pass the impugned judgment and order. (5)
Abdul Malek, Senior Advocate, instructed hv Md. Nowab AH, Advocate-on-Record. For the Petitioner. Not represented Respondent.
1. Amirul Kabir Chowdhury J: Convict Mahbbur Rahman seeks leave to appeal against the judgment and order dated 03.08.2003 passed by the High Court Division in Criminal Appeal No. 777 of 1987 allowing the appeal in part modifying the sentence of Rigorous Imprisonment of 7 (seven) years under Sections 409 and 467 of the Penal Code to run concurrently instead of consecutively and reducing the amount of fine of fk. 40,000/- Trom Tk.l(one) lac in default to suffer Rigorous Imprisonment for 3(three) months.
2. The facts, in brief, leading to the leave petition are that the petitioner was serving in Dhaka General Post Office as a leadgcrclerkand in the said post offfice an ordinary savings accounts in the name of one 01 i ur Rahman was opened with a deposit of Tk. 100/- only though the said Oliur Rahman was a fictitious person and in the account the amount deposited was manipulated to Tk. 35,100/- writing figure ’35’before 100 in the ledger book signed by Majibul Hoque. Assistant Post Master and the petitioner as a ledger clerk and on 09.01.1980 on further fictitious petition filed in the name of the Oliur Rahman, the ordinary savings account was converted into a cheque account and a cheque book was issued in the name of aforesaid account holder and on that date co accused Majibul Hoque and the petitioner Mahbubur Rahman worked as Assistant Post Master and ledger clerk respectively and thereafter on different dates from 10.01.1980 to 12.05.1982 a total sum of Tk. 1,40,900/was withdrawn from the said account through cheques keep in a balance of Tk. 100/- in the account and the aforesaid fact being revealed, Motijheel P.S. Case No. 170(11)82 was started against the petitioner, co-accused Majibul Hoque and others under Sections 409/467/468/201 of the Penal Code and after investigation charge sheet was submitted and the case was thereafter sent for trial and the learned Special Judge after recording evidence convicted four accused including the petitioner and aforesaid Majibul Hoque. Appeals were filed before the High Court Division by the convicts and the High Court Division after hearing the parties disposed of the appeals by the impugned judgment whereby accused Syed Shamsuddin Ahmed and Kazi Shamsul Alam have been acquitted of the charge while the conviction of the petitioner and co-accused Majibul Hoque was affirmed, modifying the sentence as mentioned above and recording order of acquittal under Section 201 of the Penal Code. It may be mentioned that during pendency of the criminal appeals co accused Majibul Hoque, the Assistant Post Master died and as such the order of imprisonment against him stood abated but the High Court Division reducing the amount of fine from Tk. l(one) lac to Tk. 40,000/-under Sections 409 and 467 of the Penal Code modified the sentence, setting aside the conviction and sentence against him under Section 201 of the Penal Code.
3. The petitioner feeling aggrieved with the impugned judgment passed by the High Court Division has filed this leave petition.
4. In support of the petition, Mr. Abdul Malek, learned Counsel has taken us through the judgments passed by the courts below and submits, interalia, that the High Court Division committed error in disregarding the fact that the petitioner being a ledger clerk had no hand in the alleged offence of misappropriation or forgery inasmuch as he discharged his routine duties only as a ledger clerk and that in the application for transfer of the account and in the cheque showing payment of Tk. 35,000/onl0.01.1980 the petitioner’s signature is conspicuously absent and the petitioner being a ledger clerk he had infect no role to play in making payment of the amount in question and that there is no evidence against the petitioner to maintain conviction against the petitioner and as such the impugned judgment calls for interference.
5. We have considered the submissions made by the learned Advocate and perused the materials on record. It appears from the evidence of P.W.I Sheikh Saber Ali who was Senior Post Master attached to Dhaka General Post Office during the relevant period that in the ledger book in question containing the disputed account the figure ‘100’ was turned to 35,100/- adding the figure 35 before the figure 100 and in the ledger book in question all the entries were made by the accused petitioner Mahbubur Rahman. This important part of the evidence of such important witness has not been denied nor even there is any cross-examination on that point. There is nothing on record to diselieve the evidence of witnesses including aforesaid P.W. 1. On perusal of the impugned judgment we find that the trial court as well as the High Court Division considered the evidence on record and pass the impugned judgment and order.
6. The learned Counsel also submitted that the sentence has been too harsh calling for interference. On perusal of the Judgment of the High Court Division it appears that the sentences awarded under Section 409 and 467 of the Penal Code, after modifying the order, have been ordered now to run concurrently instead of consecutively as was ordered by the trial court and also the amount of fine has been reduced to Tk.40,000/- from Tk.l(one) lac. After giving our consideration to the facts and circumstances and evidence on record and the submissions made on behalf o the petitioner we do not find any ground to lay our hands. They’re being no substance in the petition, the said leave petition
Source: III ADC (2006) 578