Md. Fazlul Haque Vs. The State and another, 3 LNJ (2014) 705

Case No: Criminal Appeal No. 2499 of 2009

Judge: Md. Abu Zafor Siddique,

Court: High Court Division,,

Advocate: Mr. Md. Ashif Hasan,Mr. Md. Bashir Ahmed,Mr. Md. Shajjad Ali Chowdhury,Mr. A.K.M. Fazlul Hoque,,

Citation: 3 LNJ (2014) 705

Case Year: 2014

Appellant: Md. Fazlul Haque

Respondent: The State and another

Subject: Law of Evidence,

Delivery Date: 2011-04-27


HIGH COURT DIVISION
(Criminal Appellate Jurisdiction)
 
Md. Rezaul Haque, J,
And
Md. Abu Zafor Siddique, J.

Judgment on
24.07.2011
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Md. Fazlul Haque
. . . Accused-Appellant
-Versus-
The State and another
... Opposite Party
 

Evidence Act (I of 1872)
Section 155
From the evidence of the prosecution witnesses it appears that they are not willing to disclose the real facts or to support the prosecution case. Trend of their deposition indicate that they appeared before the trial court as a mere formality and not to disclose their knowledge about the allegation of misappropriation....(26)

Evidence Act (I of 1872)
Section 3
Considering the facts and circumstances and other aspects of this case, the prosecution failed to prove their case beyond reasonable doubt. The learned Special Judge without properly considering the evidence on record convicted and sentenced the appellant and therefore the impugned judgment is liable to be set aside and the convict-appellant is to be acquitted....(27)

Mr. Md. Ashif Hasan, Advocate
. . . For the appellant

Mr. Md. Bashir Ahmed, A. A. G.
.... For the opposite Party

Mr. Md. Shajjad Ali Chowdhury, Adv.
. . . For accused-appellant.

Mr. A.K.M. Fazlul Hoque, Advocate
. . . For respondent No.2.

Criminal Appeal No. 2499 of 2009
JUDGMENT
Md. Abu Zafor Siddique,J:
 
This Appeal has been preferred against the judgment and order dated 24.03.2009 by which the learned Divisional Special Judge, Rajshahi, in Special Case No.2 of 1998 (Naogaon) convicted the appellant under sections 409, 420 and 477(a) of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him under section 409 of the Penal Code to suffer rigorous imprisonment for 10(ten) years and also to a pay fine of taka 1,00,000/-(one lac), in default, to suffer rigorous imprisonment for 2(two) years more.
 
The prosecution case, in short, is that the convict-appellant Md. Fazlul Haque, while acting as an officer of the Janata Bank, Nozipur Branch, Naogaon, misappropriated a total amount of Tk. 1,30,223.90 during the calendar year 1984. This money relates to the agricultural loan activities of the Bank. The appellant misappropriated the said money in the following manner:
  1.  he realized Tk. 1,16,218.90 from 68 loanees, but without depositing the same, he recorded the amount in the ledger book of the Bank against the names of false and imaginary loanees;    
  2. he recorded entries in the ledger book about 8(eight) false vouchers showing distribution of Tk. 6,508/- as loan for purchase of fertilizers;
  3. he realized from 3(three) loanees an excess amount of Tk. 497 and misappropriated the same;
  4. he showed some false and imaginary (ভূয়া) persons as loanees receiving Tk. 4,000/- as loan, and misappropriated the same.
The District Anti-corruption Officer, Naogaon lodged the First Information Report (shortly the FIR) on the basis of a preliminary inquiry on an application made by another officer of the Bank named Md. Rezaul Karim, recorded as DAB E.R.No.22/91. After lodging FIR, the informant himself conducted part of the investigation. Upon his transfer, his two successors conducted the remaining part of the investigation. The 3rd investigating officer submitted charge-sheet on 21.01.1998 under sections 409/420/477(Ka)/109 of the Penal Code read with section 5(2) of the Anti-corruption Act, 1947 against the convict-appellant and another person named Samorendra Nath, being a fertilizer dealer.

The case was ultimately transferred to the learned Divisional Special Judge, Rajshahi for trial. Charge was framed under sections 409/ 420/477(Ka)/109 of the Penal Code read with section 5(2) of the Anti-corruption Act, 1947. During trial the prosecution produced oral and documentary evidence through 13 out of 25 witnesses cited in the charge-sheet. The defence produced none. From the trend of cross-examination of the P.Ws., the defence pleas appear to be of innocence and wrong investigation and conspiracy. After hearing arguments and on an appraisal of the evidence and materials on record and in view of the facts and circumstances of the case, the learned trial Judge found that the prosecution succeeded in bringing the charge home as against the appellant. Accordingly, he convicted and sentenced the appellant by the impugned judgment, but acquitted the other accused Samorendra.
Being aggrieved by and dissatisfied with the aforesaid the impugned judgment and order of conviction and sentence, the appellant preferred the instant appeal.

Mr. Md. Sajjad Ali Chowdhury, the learned Advocate appearing on behalf of the convict-appellant, submitted that the learned Divisional Special Judge, has misread the evidence and misinterpreted the law, and thus passed the impugned judgment and order which is not tenable in the eye of law.
 
He further submitted that the prosecution miserably failed to prove its case beyond reasonable doubt, as not a single witnesses supported the prosecution case, and that this is a case of no evidence.
 
Mr. Chowdhury, the learned advocate, lastly submitted that the trial court did not apply judicial mind to the facts and circumstances of the case and thus arrived at a wrong decision.
 
In reply Mr. A.K.M. Fazlul Haque, the learned Advocate on behalf of the respondent No.2, being the Anti-corruption Commission, submitted that the prosecution, by producing the relevant documentary and oral evidence, successfully proved its case beyond reasonable doubt and there is nothing wrong in the impugned judgment calling for interference by this court and therefore the appeal should be dismissed.

We have considered the submission of both sides and perused the materials on record of the trial court including the entire evidence and the impugned judgment.

The essence of the charge is that the accused, by taking advantage of his official position as an officer of the Janata Bank, Nozipur Branch, Naogaon, misappropriated Tk.1,30,223.90. The major portion of this amount was Tk.1,16,218.90 which was realized from 68 loanees of the Bank, but this realized money was recorded in the ledger book in the names  of false and imaginary loanees. The remaining amount of the misappropriated money relates to other activities of the accused. So these allegations are basically account matters. The accusations appear refer to various documents. In an attempt to prove these documents. The officers of DAB seized a number of documents in terms of several number seizure lists being Exts.3, 4, 5, 6, 7 and 10. Photo copies of the bank documents, seized by those seizure lists, have also been produced. A part from the said seizure list and the bank documents, a report of the handwriting expert (Ext.8) has also been produced.

We have perused these documents and other documentary and oral evidence. But the contents of these documents are not traceable in the deposition of the witnesses. Their statements hardly identify the contents of those documents so asto relate them to the charge. This will be clear from the following discussion on the statements of the P.W’s.

P.W.1, Md. Naimul Haq, Assistant Police Super (Retd.) is the informant of the case and he partly investigated the case. He proved the FIR as Ext.1 and a seizure list as Ext.10. He stated that he only stated that the accused misappropriated Tk.1,30,223.90 including the Tk.1,16,218.90 realized from 68 loanees. In his cross-examination he denied the defence suggestions.

P.W.2, Noor Ahamed is the second investigating officer of the case. In examination in-chief he deposed about his actions, during preliminary Inquiry and his part of investigation, namely seizure of the relevant Bank 11 ledger Books of the Banks. He proved the photo copies of the seized documents as Exhibit 3(Ka)/series.

But in his cross-examination he stated that “বিগত ১৮.১২.৯১ ইং তারিখে জব্দকৃত আলামত আদালতে উপস্থাপিত হয় নাই। আলামত গুলি সীজ করিবার পরে যাচাই করিয়া মতামত দিতে পারি নাই।” He further stated that- “অনুসন্ধানকালে আমি কোন প্রতিবেদন দাখিল করি নাই।”

P.W.3, Md. Abul Kalam Azad, Manager of the Janata Bank, Amin Bazar Branch. He stated in examination-in-chief that the seized documents of the Bank seized on 09.09.1991 and 18.12.1991 were given in his custody. But in his cross-examination he stated that- “জিম্মাকৃত কাগজগুলি আদালতে উপসহাপন করা হয় নাই। সীজকৃত কাগজ সম্পর্কে আমার ব্যক্তিগত কোন ধারনা নাই।”

P.W.4, S.M. Ezaj Farid is a Field Assistant Cum-Supervisor of the Janata Bank, Nozipur Branch. At the time of occurrence, he was acting as U.D. Assistant (Krishi) and he witnessed the seizure of the Bank documents. He proved his signatures as on Exhibit 3/3 and 5/1 on the two seizure lists (Ext.3 and 5). He stated in his cross-examination that- “সীজার লিষ্টের স্বাক্ষর করা ব্যাতিত আমি আর কিছু জানি না। সীজকৃত কাগজাদি আদালতে নাই।”

P.W.5, Md. Abdur Razzak is a clerk of the Janata Bank BESIC Branch, Bogra and at the time of occurrence he was working at the Nozipur Branch, Patnitala, Naogaon. He witnessed the seizure of some bank documents and he proved his signatures as 4/3 and 6/1 on the two seizure lists Exts.4 and 6 prepared on 18.12.1991. He stated in his cross-examination that- “কি কারনে ঐ সকল কাগজাদি সীজ করা হয় তাহা জানি না। ঐ সকল কাগজাদির বিষয়ে আমার ব্যত্তিুগত জ্ঞান নাই।”

P.W.6, Md. Khademul Islam, is an officer of the Janta Bank. He witnessed the seizure of some bank documents and he proved his signature as 7/1 on the seizure list Exhibit-7 that was prepared on 12.9.1995. He stated in his cross-examination that- “আমি মামলার ঘটনার বিষয়ে কিছু জানি না।”

P.W.7, Shris Chandra Mondal, Second Officer of the Janata Bank, Nozipur Branch, witnessed the seizure of some bank documents. He proved his signature as Ext.5/2 on the seizure list (Ext.5). He stated in his cross-examination that-“এই মামলার সংশ্লিষ্টতার বিষয়ে আমার ব্যক্তিগত জ্ঞান নাই।”

P.W.8, Shamim Ahamed, Assistant General Manager of the Janata Bank. He witnessed the seizure of some documents of the Bank. He proved his signature as Exhibit-7/2 on the seizure list (EXt.7). He stated in his cross-examination that- “ঘটনার সময় আমি নজিপুর শাখায় ছিলাম না।”

P.W.9, Jatindra Nath Mondal, is the Manager, Janata Bank, Dhamur Hat Branch, Naogoan. He witnessed the seizure of some documents of the Bank. He stated that his signature was there in the seizure list (Ext.3). He stated in his cross-examination that- “মামলার সংশ্লিষ্টতার সময় আমি নজিপুর শাখায় ছিলাম না।”

P.W.10, Zafor Uddin, is an employee of the Janata Bank Traning Center. He was tendered and not examined by the prosecution. He was not cross-examined.

P.W.11, Md. Zahangir Alam is the hand writing expert. He deposed and proved the report and his signature as Ext.8 and 8/1. 

P.W.12, Md. Muzammel Hossain, is a retired officer of Janata Bank. At the time of occurrence he was acting as officer of the same Bank, Nozipur Branch. He stated in examination in-chief about his actions taken in the departmental enquiry relating to activities of the accused by realizing loan money, and about making false entires in the Bank ledger books. But in his cross-examination that-“আমি সংশ্লিষ্ট অফিসারকে জিজ্ঞাসা করি নাই। কোন লিখিত বত্তুব্য লই নাই। স্বাক্ষরের বিষয়ে কোন বত্তুব্য লিখি নাই। স্বাক্ষর সংত্রুামত বত্তুব্য আমার অনুমান ভিত্তিক। এই মামলায় নিদৃষ্ট ভাবে বলিতে পারিব না যে কি কি অনিয়ম হইয়াছে।”

P.W.13, M.H. Rahamat Ullaha, Deputy Director of the Anti-corruption officer, Barishal District. He was the 3rd and last investigating officer of the case. He stated that having taken up investigation thereof, he visited the place of occurrence and seized some alamats, prepared seizure list, during investigation, he examined the witnesses and recorded their statement and examined the result of his two predecessor investigation investigating officers and having found prima-facie case he prepared memora-ndum of witnesses and submitted charge sheet under sections 409/420/477 (Ka)/ 109 of the Penal Code  read with section 5(2) of the Anti-corruption Act, 1947 and he supported the prosecution case.

In the cross-examination he denied all the suggestions.

From the evidence of the prosecution witnesses it appears to us that they are not willing to disclose the real facts or to support the prosecution case. Trend of their deposition indicate that they appeared before the trial court as a mere formality and not to disclose their knowledge about the allegation of misappropriation.

Considering the facts and circumstances and other aspects of this case, we are of the view that prosecution failed to prove their case beyond reasonable doubt. The learned Special Judge without properly considering the evidence on record convicted and sentenced the appellant and therefore the impugned judgment is liable to be set aside and the convict-appellant is to be acquitted.

Accordingly, the appeal is allowed. The judgment and order dated 24.03.2009 passed by the learned Divisional Special Judge, Rajshahi Division, Rajshahi in Special Case No.2 of 1998 (Naogaon) arising out of Patnitala P.S. Case No.7 dated 29.05.1994 corresponding to G.R. Case No.105 of 1994 and E.R. Case No. 22 of 1991 is here by set aside. The appellant Md. Fazlul Haque is found not guilty of the charge framed in that case against him and accordingly he is acquitted of the said charge.

The appellant be set at liberty at once, if not wanted in connection with any other case.

Let a copy of this judgment and order along with lower court records be sent down to the learned Divisional Special Judge, Rajshahi at once.

Ed.