Md. Nowsher Ali and others Vs. The State 2016 (2) LNJ 269

Case No: Criminal Appeal No. 957 of 2002

Judge: Md. Nizamul Huq,

Court: High Court Division,,

Advocate: Mr. Kamal Uddin Ahmed,,

Citation: 2016 (2) LNJ 269

Case Year: 2016

Appellant: Md. Nowsher Ali and others

Respondent: The State

Subject: Criminal Law,

Delivery Date: 2015-11-25

Md. Nowsher Ali and others Vs. The State 2016 (2) LNJ 269
HIGH COURT DIVISION
(CRIMINAL APPEALATE   JURISDICTION)
Md. Nizamul Huq, J
 
Judgment on
25.11.2015
  Md. Nowsher Ali and others
.. Convict-Appellant
-Versus-
The State
... Respondent

Penal Code (XLV of 1860)
Sections 409/109
Considering all this things that 930 feet road was constructed beyond the Project proposal and that has not been measured in the final measurement of the Project and this part of extra work had to be done by the Project committee because the fact that the Project road falls in the land of the one of the Sugar Mills. Thus a doubt is created weather the non consideration has caused any miscarriage. And I am of the view that for this reasons a doubt is created in the prosecution case as a whole. And as such the accused appellants are entitled to get the benefit of doubt. The case of defalcation against the accused appellants have not been established by the prosecution beyond reasonable doubt and as such the appellants are entitled to get benefit of doubt and the appeal is to be allowed.                    . . . (13 and 14)

No one appears
… For the appellants.
Mr. Kamal Uddin Ahmed, D.A.G.
.......For the Respondent
JUDGMENT

Md. Nizamul Huq, J.
This appeal at the instance of the appellants has been filed against the judgment and order of conviction and sentence dated 21.04.2002 passed by the Divisional Special Judge, Rajshahi Division, Rajshahi in Special Case No. 3 of 1998 (Natore) convicting the appellants under section 409/109 of the Penal Code and sentencin them to suffer rigorous imprisonment for 02 (two) years and to pay a fine of Tk. 1,20,130/- ( One lac twenty thousand and one hundred thirty) only in default to suffer imprisonment for 03 (three) months more.
  1. The prosecution case in short is this that to reconstruct a road from Lokmanpur School to Maria Railgate, Surappur and Gaonpara, Rampara care Road, the Project Chairman and Union Porishod Chairman accused appellant Nowsher Ali was allotted by Bagatipara Upazila Porishod through memo no. 142(5) dated 09.02.1986, 500 monds of wheat at the first installment then through memo no. 56 (5) dated 02.04.1986, 700 monds of wheat in 2nd installment then through memo no. 143(5) dated 28.04.1986, 700 monds of wheat in 3rd installment and vide memo no. 201 (5) dated 13.05.1986, 900 monds of wheat in the 4th installment in all 2800 monds of wheat was allotted and those wheat were withdrawn as usual. After calculation of the seize of the work done by Care engineer Rajshahi and Upazila Project Implement Officer Bagatipara, of the said Project an amount of 695.17 monds of wheat were kept which has not been used in the hand of the Project committee and a letter was issued vide memo no. 663 to the Project committee to return the said wheat or equivalent money but those has not been deposited and the accused persons conjointly with each other has defalcated the said wheat neighing 695.17 maunds value of which is taka 1,25,130.60 poisa.   
  2. The case was investigated by the Anti-Corruption Officer Natore and after receiving sanction and perusal of the records he submitted a charge sheet against the appellants under Section 409/109 of the Penal Code read with Section 5(2) of Act II of 1947 on 31.10.1997. Then the case was transferred to the divisional Special Judge, Rajshahi and was mumbered as Special Case No. 03 of 1998 (Natore). Against the accused appellant Nowsher Ali charge under Section 409 of the Penal Code read with section 5(2) of Act II of 1947 was framed. Against the other accused appellants charge under sectioin 409/109 of the Penal Code read with Section 5(2) of Act II of 1947 was framed to which they pleaded not guilty and claimed to be tried.
  3. The prosecution examined 14 PWs and then the accused persons were examined under Section 342 of the Code of Criminal Procedure they again claimed innocence and they further stated that they will not produce any defence witnesses.
  4. Accused Abdul Kuddus expired during pendency of this trial and as such the case proceeded against the accused appellants. Then the learned Judge vide Judgment and order mentioned above found the appellants guilty and convicted and sentenced them as mentioned herein above. Against the said Judgment and order of conviction and sentence the appellants have preferred this appeal.
  5. During pendency of this appeal and at the time of admission of the appeal the accused appellants have been enlarged on bail by this court and they are still continuing on the same bail.
  6. Points for determination of this appeal is weather the accused appellants have done any offence under Section 409 and Section 409/109 of the Penal Code read with Section 5(2) of Act II of 1947 and also weather the judgment and order of conviction and sentence passed by the trial court can be upheld.
  7. No one appears for the appellants all though the appeal is in the list for quite a long time. However the state has been represented by the learned Deputy Attorney General.
  8. I have heard the learned Deputy Attorney General and perused the impugned Judgment and the Lower Courts Records. It appears that PW. 1 in his evidence stated that he was the Chairman of the Upazila Porishod of Bagatipara Upazila in 1986 and at that time accused appellant Md. Nowsher Ali was the Union Porishod Chairman of number. 1 Paka Union. At that time from Lokmanpur School to Maria Railgate, Surappur and Gaonpara to Rampara for reconstruction of the road, a case Project was taken and the work was under the year 1985-86. For the said Project in 4(four) installments a total of 2800 monds of wheat was allotted. According to the technical committee the Project committee did not do any work in the Project and the work has not been done for the amount of 695.17 sers of wheat. He admitted that he has filed the FIR the Project Chairman was asked to return the remaining wheat but he did not return it. He further stated that he gave the letter to the Project Chairman on 01.10.1986 to return the defalcated wheat and again letter was given on 11.10.1986 but the Project Chairman did not return the money. He stated in cross-examination that eajher was lodged on the basis of the technical report. He cannot say what was the length of the Project road. He also stated that he does not remember weather a part of the Project field fell within the land of Sugar Mill and as such the direction of the road was abit changed and more 930 feet road was cut. He was not present at the time of the post work measurement. He admitted that he has heard that the calculation of 930 feet road has not been taken PW. 2 the anti-corruption officer name Rammohon Nath stated that he was inspector of Natore DAB from 11.11.1985 to 21.06.1990 and he investigated the instant case. He further stated that the Upazila Chairman asked the Project Chairman to return the wheat weighing 695 monds 17seers but that was not returned and as such the case was lodged. He admitted in this cross-examination that he has not taken the post work measurement and that on 03.08.1986 Project Implement Officer Lutfur Rahman and supervisor Birandro Nath took the measurement of the Project and on 14.06.1986 Care engineer Project Chairman jointly took measurement of the Project and in both the measurement Project Chairman was present PW. 3 was tendered. PW. 4 stated regarding seizure of some documents. PW. 5 is the seizure list witness. PW. 6 stated that he deposited the report regarding taking measurement of the Project on 12.06.1986. On 03.06.1986 the Project Implication Officer in presence of him measured the Project work. He stated in his cross-examination that he does not remember whether a part of the Project road falls in the land of Natore Sugar Mills and as such the route was abit changed and the measurement of that road was taken. The Care engineer also took measurement of the project and he does not remember whether any difference between the two majormeants are available.
  9. PW. 7 the project Implementation Officer stated that the I.O seized some documents in his presence. PW. 8 denied his signature in the seizure list exhibit 4 and was declared hostile. He stated that he has got knowledge about seizing of documents exhibit number. 4 and he denied his signature there. PW. 9 was tendered. He stated in cross-examination that the work has been done as directed in the Project but he is not expert in the Project. PW. 10 stated that he is a labour and he has received his wheat for his work. PW.11, PW. 12 are also labours and they have also admitted that they had received their wheat for their works. PW. 13 P.I.O stated that for this Project 2977 monds wheat was allotted and the Project committee withdrawn 2800 monds of wheat in 04 (four) installments and the work was done for 2240 monds of wheat and no work was done for 560 monds wheat and the accused persons defauleted those wheat. He was engaged in the looking after of the Project work. The Project work ought to have been completed within 31.05.1986 and on 03.06.1986 he took the post work measurement of the work. He admitted in cross-examination that 930 feet road of Lokmanpar Bazar to Maria rail gate was diverted and the calculation of that work has not been taken at the time of final calculation. He denied the suggestion that the road was diverted as the road of the Project involves the land of Gopalpur sugar mill. After 03.06.1986 no measurement of the work has been taken. He admitted that on that road of the Project now a days the cars of cow and buffalo moves. PW. 14 only submitted the charge sheet.
  10. These are the evidence available in this case. It appears that by producing documents, the prosecution has been successful to prove that the wheat in question amounting 2800 monds of was given to the Project committee for construction of the Project road. There is no denial of the fact that the work was done but the question is for not doing the work in full for 560 monds of wheat. It is available in the evidence that the road was diverted may be for the reason that the Project road falls in the land of the one sugar mill or for any other reason but it has been admitted by the prosecution witnesses that the road was diverted and more 970 feet road was constructed.
  11. It is available in the evidence even by the Project Implementation Officer and other witnesses that finally when the measurement was taken then the measurement of that road measuring 930 feet was not taken. The learned trial Judge in his Judgment stated that at the time of measurement the 930 feet of road was not measured is not acceptable and reasonable but he has not given any reason for that observation rather we have in evidence that those 930 feet road was not measured in the final measurement. As such now the question is what is the cost involved in construction of that 930 feet of road and there is no evidence in this case and also in the Judgment passed by the learned trial court that for this 930 feet of road this much of wheat is required to be used.
  12. The prosecution is silent in this respect. Considering all this things that 930 feet road was constructed beyond the Project proposal and that has not been measured in the final measurement of the Project and this part of extra work had to be done by the Project committee because the fact that the Project road falls in the land of the one of the Sugar Mills. Thus a doubt is created weather the non consideration has caused any miscarriage. And I am of the view that for this reasons a doubt is created in the prosecution case as a whole. And as such the accused appellants are entitled to get the benefit of doubt.
  13. Considering all this things I am of the view that the case of defalcation against the accused appellants have not been established by the prosecution beyond reasonable doubt and as such the appellants are entitled to get benefit of doubt and the appeal is to be allowed.
  14. The appeal is thus allowed.
  15. The judgment and order of conviction and sentence passed upon the appellants by the learned Divisional Special Judge, Rajshahi is hereby set-aside. The accused appellants are released from their bail bonds.
  1.     Send down the Lower Courts Records immediately.
Ed.
 

Criminal Appeal No. 957 of 2002