JABANUDDIN CHOWDHURY vs The STATE

1. HAMOODUR RAHMAN, C. J.-The petitioner, who was at the relevant time the Chairman of the Kashiram Belpukur Union Council of P. S. Saidpur, was convicted by the Assistant Sessions Judge and Ex-officio Special Judge, Rangpur, under section 409 of the Pakistan Penal Code read with section 5(1) of the Preven--tion of Corruption Act, 1947. He was sentenced to suffer rigorous imprisonment for two years as also to pay a fine of Rs. 2,000 or in default undergo further rigorous imprisonment for one year. On appeal, a learned Single Judge of the High Court of East Pakistan has upheld the conviction but reduced the sentence of rigorous imprisonment from two years to six months. The sentence of fine together with the sentence in default have, how--ever, been maintained. The petitioner now seeks special leave to appeal to this Court.

2. The case against the petitioner was that he had failed to pro--duce, on demand, the amounts found to be standing to the credit of the Union Council on the checking of its accounts by the Circle Officer, Development, Saidpur. He was accordingly charged with having criminally misappropriated a sum of Rs. 5,379.37 between the period 29-3-1964 and 10-8-1964.

3. The case of the prosecution was that the Circle Officer had inspected the books of account on 29- 3-1964, 13-7-1964 and 10-8-1964 and found certain amounts to be standing to the, credit of the Union Council but the petitioner could not, on demand, produce the amounts in cash.

4. Unfortunately, the said Circle Officer himself was not avail--able at the time of the trial of the petitioner, as he was ill and not in a position to give evidence, but other subordinate officers who accompanied him on these occasions gave evidence.

5. The High Court, it appears, was not satisfied that there was satisfactory evidence about the illness of the Circle Officer but, nevertheless, examined the other evidence on record and relied upon the evidence of the Circle Officer's clerk, who had accom--panied the latter on each of the occasions he went there, and the Secretary of the Union Council, who also supported the prosecu--tion case with regard to the demand and the non-production of the amount.

6. The High Court gave the benefit of doubt to the petitioner about the demand alleged to have been made on 29-3-64, as there was nothing about the demand in the remark (Exh. A) recorded by the Circle Officer himself in the cash book on that date. Benefit of doubt was also given to the petitioner about the demand on the 10th of August 1964, because, the Circle Officer had not recorded any note on the cash book on this date.

7. The evidence of the demand made on 13-7-1964 was, however, accepted, as this was corroborated by the entries in the cash book and the register of education cess made in the hand of the Circle Officer himself, vide Exhs. 3 and 4. This related to a sum of Rs. 3,453.14 in the general cash book and Rs. 1,881.61 in the education cess fund.

8. The defence of the petitioner was that the criminal intent to misappropriate had not been established in this case, as there was no allegation that the petitioner had either converted the amount to his own use or that he had dealt with the amounts in any manner contrary to law or rules. The mere entrustment, it is contended by learned counsel, was not sufficient to establish the guilt of the petitioner.

9. In the present case, however, if the prosecution version regarding the demand and the non- production of the amount by the petitioner is accepted, then there is a clear breach of trust and the criminal intent is established. Even if there was no system of depositing the moneys of the Union Council in the local treasury or with a bank, there was no justification for the petitioner not producing the money when the Circle Officer demanded it. The petitioner could not take up the position that the money found by the Circle Officer to be standing to the credit of the Union Council in its books was correct but that he was not bound to produce the same whenever demanded.

10. Even if he was keeping the funds of the Union Council mixed up with his own funds, it was his duty to produce the amount found to be standing to the credit of the Union Council as soon as the same was demanded. His failure to do so, even for a short while, would amount to, at least, temporary criminal misappropriation.

11. Learned counsel for the petitioner himself admits that the Circle Officer had, on the first occasion, asked the petitioner to deposit the money in a bank, but even with this direction the petitioner did not comply. This was, therefore, a clear case of misappropriation and the petitioner has, in our opinion, been rightly convicted. We see no justification, therefore, for granting leave in this case.

12. This petition is, accordingly, dismissed.