The State Vs. Md. Rafique Ahmed

Appellate Division Cases

(Criminal)

PARTIES

The State……………… Petitioner.

– Vs-

Md. Rafique Ahmed……………………. Respondent.

JUSTICES

Mohammad Fazlul Karim J

Md. Tafazzul Islam J

Md. Jovnul Abedin J

Judgment Dated: 1st August 2007

The Constitution of the People’s Republic of Bangladesh under Article 103

It is alleged that the accused respondent being a Junior Accountant, Central Office, Bangladesh Telegraph and Telephone Board, Dhaka in collusion with said Cashier, Abdus Salam Khan misappropriated the amount…………………. (2)

It appears that the respondent was not in charge of cash in question, but he had a duty to check the illegalities/irregularities, if any, committed by the Cashier and in the present case the respondent found to have failed to discharge his duty properly, though there is exclusive findings to the effect that the Cashier, Abdus Salam Khan since dead was solely responsible for handling the cash in question. It also appears that the authority got the entire matter investigated into by a special committee and the committee held the respondent responsible for an amount of TK. 13,080.25 and in pursuance of the said recommendation of the inquiry committed the Government issued official order holding the respondent responsible for negligence of official duty and ordered to pay an amount of TK.13,080.25 and the petitioner deposited the said amount on installment from January, 1995 to December, 1996 as the special inquiry committee found the respondent guilty for negligence of his official duty with a clear findings that the money in question was entirely in charge of Cashier, Abdus Salam Khan and only wrong found against the respondent was that the failed to exercise his supervisory power on day to days work of the Cashier inasmuch as the inquiry committee did not find the respondent responsible for misappropriation of the amount in question in league with the Cashier, Abdus Salam Khan. It appears that there is no allegation in the F.l.R. that any money was with the respondent inasmuch as the inquiry report indicates that the respondent failed to exercise his supervisory power regarding the day to day activities of the Cashier, Abdus Salam

Khan as referred to above. There is no evidence against the respondent about misappropriation of money in question but fact remains that he failed to exercise his supervisory power in due discharge of his official duties for which the authority has censured him with fine of certain amount as mentioned earlier………… (5)

Muhammad AH Akanda, D.A.G. instructed by Mr.Md. Sajjadul Huq, Advocateon-Record…………………………. For the Petitioner

For the Respondent ………………..None represented.

Criminal Petition For Leave To Appeal No.324 of 2004

(From the judgment and order dated the 18th September, 2004 passed by the High Court Division in Criminal Misc. Case No.3880 of 2003 with Crl. Misc. Case No.12521 of 2002, 3879 of 2004 and 2112 of 2004).

JUDGMENT

Mohammad Fazlul Karim J: This application for Leave to Appeal under Article 103 of the Constitution of the People’s Republic of Bangladesh is directed against the judgment and order dated 18.09.2004 passed by High Court Division in Criminal Miscellaneous Case No.3880 of 2003 making the Rule absolute quashing the impugned proceeding of Metro. Special Case No.5 of 2000 arising out of G.R. No. 103 of 1995 corresponding to

Ramna Police Station Case No. 101 dated 31.10.1995 pending in the Court of Divisional Special Judge, Dhaka, so far it relates to the accused Respondent.

2. The facts, in short, are that the accused-respondent served as a Junior Accountant during the period for 01.09.1986 to 14.07.1990 and Abdus Salam Khan, Cashier of the Central Telegraph Office, Ramna, Dhaka under Telegraph and Telephone Board of the Government of Bangladesh was the custodian of the cash and cash book who went to leave preparatory to retirement on 2nd March, 1992, but did not hand over the cash books and other papers to new Cashier, A.F.J. Rozario violating the instruction of the said office and the office examined the cash books and other documents and thereafter, the authority investigated and found that the Cashier, Abdus Salam Khan embezzled and defalcated Government money at TK. 13,05,452.22 and sent a notice vide Memo No.248/92,33 dated 09.06.1992 whereupon the said Cashier, Abdus Salam Khan by way of showing cause accepted the entire responsibility of the misappropriated money admitting that he alone defalcated the money and no one else was with him and also paid 50,000.00 by a cheque bearing No.035827 dated 04.05.1992 as part payment towards the defalcated

amount and also prayed to the authority to adjust the rest defalcated amount from his

leave benefit, pension, gratuity, provident fund, L.P.R. Salary etc. due to him on retirement and, as such, he was already on leave preparatory to retirement, the amount was sufficient to make adjustment. It is alleged that the accused respondent being a Junior Accountant, Central Office, Bangladesh Telegraph and Telephone Board, Dhaka in collusion with said Cashier, Abdus Salam Khan misappropriated the amount. Accordingly, the aforesaid four police station cases were started whereupon the investigating agency submitted charge sheet against the accused respondent along with others and ultimately the case records have been sent to the trial Court for trial.

3. Mr. Muhammad Ali Akanda, learned Deputy Attorney General, appearing for the petitioner submitted that the judgment and order of the High Court Division is neither proper nor in accordance with law and facts of the case. The learned Deputy Attorney General further submitted that the High Court Division ought to have held that the allegation brought against the respondent was proved during investigation and accordingly, the charge sheet was submitted against him along with others. That the mere deposit of a portion of defaulted amount as suggested by the inquiry committee is in no way justify that the offence alleged was not committed by the respondent.

4. It appears that the respondent was not in charge of cash in question, but he had a duty to check the illegalities/irregularities, if any, committed by the Cashier and in the present case the respondent found to have failed to discharge his duty properly, though there is exclusive findings to the effect that the Cashier, Abdus Salam Khan since dead was solely responsible for handling the cash in question. It also appears that the authority got the entire matter investigated into by a special committee and the committee held the respondent responsible for an amount of TK. 13,080.25 and in pursuance of the said recommendation of the inquiry committed the Government issued official order holding

the respondent responsible for negligence of official duty and ordered to pay an amount of TK. 13,080.25 and the petitioner deposited the said amount on installment from January, 1995 to December, 1996 as the special inquiry committee found the respondent guilty for negligence of his official duty with a clear findings that the money in question was entirely in charge of Cashier, Abdus Salam Khan and only wrong found against the

respondent was that the failed to exercise his supervisory power on day to days work of the Cashier inasmuch as the inquiry committee did not find the respondent responsible for misappropriation of the amount in question in league with the Cashier, Abdus Salam Khan. It appears that there is no allegation in the F.I.R. that any money was with the respondent inasmuch as the inquiry report indicates that the respondent failed to exercise his supervisory power regarding the day to day activities of the Cashier, Abdus Salam

Khan as referred to above. There is no evidence against the respondent about misappropriation of money in question but fact remains that he failed to exercise his

supervisory power in due discharge of his official duties for which the authority has

censured him with fine of certain amount as mentioned earlier. It appears in the facts

and circumstances of the case that it is very much difficult for the prosecution to prove the entrustment of money in question with the petitioner and for which it is very hard to succeed in the original case.

6. In view of the above, the submissions of the learned Deputy Attorney General for the petitioner merit no consideration.

7. Accordingly, the petition is dismissed.

Source : V ADC (2008), 178

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