UNITED BANK LTD. Versus MUHAMMAD RAHIM KHAN

ORDER

1. Akhtar Kiyani has moved this Criminal Revision Application against acquittal of respondent No.2 Yawar Hussain in Case No.76 of 1992 by the Assistant Commissioner and A.C.M. Court No.XIl, South Karachi.

2. Admittedly respondent No.2 was Manager Service Wholesale Depot of Service Shoes Company at Karachi, with duty to sell goods of said company and remit the sale proceeds to head office of the company at Lahore. The allegation against the respondent No.2 was, that during the period from 16-11-1983 to 30-11-1983 there was sale worth Rs.4,17,368.32 and out of said amount respondent No.2 could deduct Rs.39,864.17 as miscellaneous expenses and balance of Rs.3;77,504.15 was to be sent by him to head office of Service Shoes Company at Lahore but he failed to send the same. In this way an amount of Rs.3,77,504.15 was alleged to have been misappropriated by respondent No.2 as an employee of the company. The case was tried by the A.C.M. Court No. XII South, who under the impugned judgment, dated 31-1-1993 acquitted the respondent No.2. Hence this revision application.

3. Mr. Dewan Bashir Ahmed learned counsel for the applicant argued that there was a clear misappropriation of money by respondent No.2, who was an employee of Service Shoes Company and was supposed to send the sale proceeds to said company at Lahore but he had failed to do so. In respect of delay in lodging of the complaint, learned counsel was of the view that such delay of six months was not of any consequence. In support he cited the case of Shrimati sawitri v. Gopaldas and another P L D 1963 (W.P.) Kar. 66 where delay of eight months in filing petition by a private party under section 439, Cr.P.C. was held to be not inordinate and the petition challenging acquittal was accepted and retrial was ordered.

4. After hearing learned counsel for the applicant, I am not satisfied with the fact that a criminal charge has been made out against the respondent No.2. Admittedly respondent No.2 was an employee of Service Sales Corporation (Pvt.) Limited, Lahore, which appears to have dispute with the former about non-payment of some amount realised out of sale of latter's goods at Karachi. This dispute appears to be of civil nature as the element of mens rea is almost non-existing.

5. Plea of the respondent No.2 during the trial was that he had remitted the entire sale proceeds, of the stock of shoes sold by him during the period 16-11-1983 to 30-11-1983 to the said Corporation, through bank drafts without committing misappropriation of the funds of the corporation. He claimed to have remitted to the corporation Rs.6,34,000 under documents Annexures Exh.3-K, Exh.3-M/1, Exh.3-M/2, Exh.3-M/3 and Exh.3-M/4. Respondent No.2 also took plea that some sales were made on credit basis. He produced before the trial Court list of the dealers and non-dealers as Exh.12-A and fortnightly statement Exh.12-B, dated 31-12-1983 for the period. 1-12-1983 to 15-12-1983 original of which was sent to the corporation at Lahore. Respondent No.2 also produced statement Exh.12-C showing that some amount pertaining to the period from 2-11-1983 to 6-11-1983 was lying with the dealers, who were supplied stock on credit basis.

6. In respect of supply of goods on credit basis, there is admission by Muhammad Zaheer Exh.5. The trial Court has mentioned that the Investigating Officer of the case admitted in cross that the documents Exh.3-C/1 and Exh.3-C/2 were the only documents relating to misappropriation.

7. There is also abnormal delay in lodging of the complaint. The complaint shows that the amount allegedly misappropriated was to be remitted to the company at Lahore by 1-12-1983. As against this, the complaint has been filed on 25-6-1984. In the case of Shrimati Sawitri P L D 1963 (W.P.) Kar. 66 there is no observation about delay in lodging of the complaint. There was observation about delay in filing the criminal revision application and it was held that delay of eight months in filing criminal revision by a private party was not inordinate. In this case, the delay in lodging the complaint is said to be due to obtaining of the sanction from the head office at Lahore for prosecution of respondent No.2. It is difficult to believe that in a private concern, such delay was due to obtaining of the sanction. Such delay' can occur in a Government Department but not in a private organization.

8. P. W. Muzaffar Javed Exh.4 stated in his evidence that the amount of arrears was outstanding against the parties and that the respondent No.2 after his discharge from the hospital used to collect the money from parties and credited the same in account of the company and that some money was still lying with the parties. All these facts show that there was no criminal intent on part of the respondent No.2 to misappropriate any amount. Consequently no criminal case is made out and the respondent No.2 was rightly acquitted.

9. It may, however, be pointed out here that interference with acquittal is not a matter of course where a Judge has read the evidence fairly and has formulated grounds of doubt which are not perverse or wholly illogical or unreasonable, there is a clear risk of departure from the rule of the benefit of doubt in reversing his findings, as observed in the case of Abdul Majid v. Superintendent and R.I.A. Government of E.P. P L D 1964 SC 422. In the case of State v. Abdullah and another 1979 P Cr. L J 891 it was held that while dealing with the acquittal appeals the High Court has to keep to view the factors that the trial Court had an opportunity of seeing the witnesses, that trial Court's opinion as to the credibility of witnesses deserves 'to be kept into consideration that the High Court is to be slow in displacing findings of innocence, and that after acquittal of an accused presumption of innocence in his favour has been strengthened. In the case of State v. Syed Mustafa Abbas and others 1986 P Cr. L J 1283 it was held that in deciding an acquittal appeal importance must be given to the views of the trial Judge as to the credibility of the witnesses whose the acquittal rests wholly on direct evidence of witnesses. It was also held that the High Court must be slow at disturbing a finding of fact arrived at by a Court which had the advantage of watching the demeanour of witnesses. In the case of State v. Muhammad Amin and others 1985 P Cr. L J 472 it was held that where in acquitting the accused the trial Court did not violate any principle of law and did not ignore any material fact in appraising the evidence on record and its conclusion did not suffer from any patent error or exception, then there is no justification for interference with the order of acquittal, even if different view on some of the matters is taken.

10. For the foregoing reasons I dismiss this criminal revision application but this would not stand in way of the applicant or Service Shoes Company from filing a civil suit against the respondent No-2 for recovery of any amount which is found due.

11. N.H.Q./A-1482/K ????????????????????????????????????????????????????????????????? Revision petition dismissed