(From previous issue) :
27. The learned Advocate for the appellant also submits that before issuing the DO letter by the Thana Food Officer they usually go through the Bank scroll and when they are satisfied that the Bank had admitted the deposit of the money, then only the Thana Food Office issue the DO letter for the delivery of wheats. The learned Advocate for the appellant very categorically submits that though the PW 12 Md Zohurul Alam Gani testified that he was entrusted at the relevant time to write the Bank scroll but he did not write and send the Bank scroll related to the disputed DO letter and in the estimation of the leacned Advocate this evidence is not sufficient to prove that the exhibit No. 4(ka)3 was forged.
28. In my consideration, the evidence of PW 12 in order to prove the disputed Bank scroll as forged is more than sufficient because he was the right person who was entrusted with at the relevant time to write the Bank scroll to say whether the disputed Bank scroll exhibit 4(ka)3 was written by him or not. His evidence run as follows:
ÒAvwg MZ 9-4-92 n‡Z b‡f¤^i/92 ch©šÍ †mvbvjx e¨vsK MvBevÜv kvLvq Dc-wnmv‡e iÿb c‡` Kg©iZ wQjvg| H mg‡q Avwg e¨vsK ¯Œj †jLvi KvR KiZvg| 25-7-92, 3-8-92, 10-10-92 Zvwi‡Li e¨vsK ¯Œj¸‡jv Avgvi nv‡Zi †jLv bq| G¸‡jv‡Z cÖ`Ë ¯^vÿi Avgvi cwiwPZ bq| Z‡e 15-10-92, 18-10-92, 24-10-92 Zvwi‡Li ¯Œj¸‡jv‡Z ZrKvjxb g¨v‡bRvi ‡iRvDj Kwi‡gi mwn Av‡Q | Avwg Zvi mwn wPwb|Ó
29. PW 2 categorically said that the Bank scroll dated 10-10-1992, exhibit No. 4(ka)3 was not written by him. Now, it is found that this scroll is forged which was received by this appellant in order to issue DO letter. PW 12 also said that the Bank scroll dated 18-10-1992, exhibit No. 3(ka)2) by which money was deposited in the Bank in the name of Dewan Mills was written by him. In my consideration PW 12 is the most competent person to say which scroll was issued by him. So, in my consideration by the evidence of PW12, the prosecution has been able to prove that this appellant had issued the DO letter relying on some forged and false Bank scroll on 10-10-1992.
30. The learned Advocate for the appellant argued before me that after the discovery of the occurrence of this case the money have been deposited by this accused and others and the challans of the same were recovered from them, so, he should not be held guilty for the alleged misappropriation. In my consideration after clear misappropriation of the government fund, depositing of the money later on will not absolve the appellant from the charge of misappropriation. After misappropriation, any attempt to repair the same depositing the amount of misappropriated found will not let him off from the charge and if any lenient view is taken upon the same that will be sheer indulgence to the offender to be more dangerous and aggressive in committing the further offence of the same kind. So, I find it difficult to place any importance on this fact of the case.
31. The total prosecution case is concentrated whether this appellant inconnivance with others had issued the DO letter for the delivery of wheats without having any deposit for the same and the said allegations have been proved by the DO letter itself and also for the evidence of PW 7. PW 7 testified that the DO letter dated 10-10-92 was written by accused Abdul Bari and signed by him and Rezaul Huq and he knows their signatures. There appears no cross-examination of PW 7 of his evidence and there is nothing to discard or to disbelieve his such evidence in any way.
32. More over, the very plain and simple prosecution case as brought against this appellant that he inconnivance with the others in order to misappropriate the wheats issued DO letter having knowledge of no deposit for the same has not been challenged by him (appellant) in any manner. He being an important office bearer of the said office could have asserted that the money was deposited duly or he had issued the challan and DO letters on being misdirected but nothing has been asserted by this appellant. The accused at trial was totally silent. So I find it difficult to disbelieve the prosecution case as well as the evidence of the prosecution witnesses.
33. The trial Court on proper scanning of the evidence found him guilty under sections 409/109 of the Penal Code read with section 5(2) of the Prevention and Corruption Act and sentenced him to suffer rigorous imprisonment for two years with a fine of Taka 10,000. The trial Court also found him guilty under sections 467/109 of the Penal Code and sentenced him to suffer rigorous imprisonment for two years with a fine of Taka 10,000 in default to suffer rigorous imprisonment for six months. From the discussion made above it has been found that the DO letter exhibit No. 2(ka) was a false document which was created to misappropriate 1,000 Kgs wheats and this appellant is one of the author of the said document as the same was signed by him along with others. So in view of sections 464 and 465 of the Penal Code, the said document is forged documents and since the appellant is one of the author of the document so, his conviction and sentence under section 467 of the Penal Code appears to be legal and fair. It is also fact that this appellant has the legal right and authority to prepare the genuine DO letter but the exhibit No. 2(ka) was not genuine document which was prepared without having any deposit within the knowledge of the appellant and the appellant in order to misappropriate the government wheats using his official capacity created the forged DO letter. So conviction and sentence of the appellant under section 647 also did not call for any interference from this Court.
34. The trial Court also directed to run the substantive sentences concurrently. In fact, the trial Court took very lenient view in sentencing the appellant and all the legal facilities available in the hands of the trial Court was also given to the appellant. I find no point to interfere in the conviction and sentence of the appellant as he has been already blessed by the trial Court in all the possible ways. So, the judgment of the trial Court did not call for any interference from this Court.
35. In the result, the appeal is dismissed.
The convict appellant is directed to surrender in the trial Court within l(one) calendar month from the dated of reading the judgment there to undergone his remaining sentence.
Let a copy of this judgment and order be sent to the trial Court along with Lower Courts Record for information and necessary action.
(Concluded)
27. The learned Advocate for the appellant also submits that before issuing the DO letter by the Thana Food Officer they usually go through the Bank scroll and when they are satisfied that the Bank had admitted the deposit of the money, then only the Thana Food Office issue the DO letter for the delivery of wheats. The learned Advocate for the appellant very categorically submits that though the PW 12 Md Zohurul Alam Gani testified that he was entrusted at the relevant time to write the Bank scroll but he did not write and send the Bank scroll related to the disputed DO letter and in the estimation of the leacned Advocate this evidence is not sufficient to prove that the exhibit No. 4(ka)3 was forged.
28. In my consideration, the evidence of PW 12 in order to prove the disputed Bank scroll as forged is more than sufficient because he was the right person who was entrusted with at the relevant time to write the Bank scroll to say whether the disputed Bank scroll exhibit 4(ka)3 was written by him or not. His evidence run as follows:
ÒAvwg MZ 9-4-92 n‡Z b‡f¤^i/92 ch©šÍ †mvbvjx e¨vsK MvBevÜv kvLvq Dc-wnmv‡e iÿb c‡` Kg©iZ wQjvg| H mg‡q Avwg e¨vsK ¯Œj †jLvi KvR KiZvg| 25-7-92, 3-8-92, 10-10-92 Zvwi‡Li e¨vsK ¯Œj¸‡jv Avgvi nv‡Zi †jLv bq| G¸‡jv‡Z cÖ`Ë ¯^vÿi Avgvi cwiwPZ bq| Z‡e 15-10-92, 18-10-92, 24-10-92 Zvwi‡Li ¯Œj¸‡jv‡Z ZrKvjxb g¨v‡bRvi ‡iRvDj Kwi‡gi mwn Av‡Q | Avwg Zvi mwn wPwb|Ó
29. PW 2 categorically said that the Bank scroll dated 10-10-1992, exhibit No. 4(ka)3 was not written by him. Now, it is found that this scroll is forged which was received by this appellant in order to issue DO letter. PW 12 also said that the Bank scroll dated 18-10-1992, exhibit No. 3(ka)2) by which money was deposited in the Bank in the name of Dewan Mills was written by him. In my consideration PW 12 is the most competent person to say which scroll was issued by him. So, in my consideration by the evidence of PW12, the prosecution has been able to prove that this appellant had issued the DO letter relying on some forged and false Bank scroll on 10-10-1992.
30. The learned Advocate for the appellant argued before me that after the discovery of the occurrence of this case the money have been deposited by this accused and others and the challans of the same were recovered from them, so, he should not be held guilty for the alleged misappropriation. In my consideration after clear misappropriation of the government fund, depositing of the money later on will not absolve the appellant from the charge of misappropriation. After misappropriation, any attempt to repair the same depositing the amount of misappropriated found will not let him off from the charge and if any lenient view is taken upon the same that will be sheer indulgence to the offender to be more dangerous and aggressive in committing the further offence of the same kind. So, I find it difficult to place any importance on this fact of the case.
31. The total prosecution case is concentrated whether this appellant inconnivance with others had issued the DO letter for the delivery of wheats without having any deposit for the same and the said allegations have been proved by the DO letter itself and also for the evidence of PW 7. PW 7 testified that the DO letter dated 10-10-92 was written by accused Abdul Bari and signed by him and Rezaul Huq and he knows their signatures. There appears no cross-examination of PW 7 of his evidence and there is nothing to discard or to disbelieve his such evidence in any way.
32. More over, the very plain and simple prosecution case as brought against this appellant that he inconnivance with the others in order to misappropriate the wheats issued DO letter having knowledge of no deposit for the same has not been challenged by him (appellant) in any manner. He being an important office bearer of the said office could have asserted that the money was deposited duly or he had issued the challan and DO letters on being misdirected but nothing has been asserted by this appellant. The accused at trial was totally silent. So I find it difficult to disbelieve the prosecution case as well as the evidence of the prosecution witnesses.
33. The trial Court on proper scanning of the evidence found him guilty under sections 409/109 of the Penal Code read with section 5(2) of the Prevention and Corruption Act and sentenced him to suffer rigorous imprisonment for two years with a fine of Taka 10,000. The trial Court also found him guilty under sections 467/109 of the Penal Code and sentenced him to suffer rigorous imprisonment for two years with a fine of Taka 10,000 in default to suffer rigorous imprisonment for six months. From the discussion made above it has been found that the DO letter exhibit No. 2(ka) was a false document which was created to misappropriate 1,000 Kgs wheats and this appellant is one of the author of the said document as the same was signed by him along with others. So in view of sections 464 and 465 of the Penal Code, the said document is forged documents and since the appellant is one of the author of the document so, his conviction and sentence under section 467 of the Penal Code appears to be legal and fair. It is also fact that this appellant has the legal right and authority to prepare the genuine DO letter but the exhibit No. 2(ka) was not genuine document which was prepared without having any deposit within the knowledge of the appellant and the appellant in order to misappropriate the government wheats using his official capacity created the forged DO letter. So conviction and sentence of the appellant under section 647 also did not call for any interference from this Court.
34. The trial Court also directed to run the substantive sentences concurrently. In fact, the trial Court took very lenient view in sentencing the appellant and all the legal facilities available in the hands of the trial Court was also given to the appellant. I find no point to interfere in the conviction and sentence of the appellant as he has been already blessed by the trial Court in all the possible ways. So, the judgment of the trial Court did not call for any interference from this Court.
35. In the result, the appeal is dismissed.
The convict appellant is directed to surrender in the trial Court within l(one) calendar month from the dated of reading the judgment there to undergone his remaining sentence.
Let a copy of this judgment and order be sent to the trial Court along with Lower Courts Record for information and necessary action.
(Concluded)
