IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

        (CRIMINAL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Shohrowardi

Criminal Appeal No. 6831 of 2017 Md. Rafique Ahmed

...Convict-appellant

          -Versus-

The State and another

...Respondents

Mr. Abdus Salam Mamun, Advocate with Mr. Ahsanual Hoque (Liton), Advocate

...For the convict-appellant

Mr. Md. Shahidul Islam, A.A.G with

Mrs. Sharmin Hamid, A.A.G

...For the State

Ms. Quamrun Nessa, Advocate

...For the respondent No. 2 Heard  on  10.11.2024,  25.11.2024, 11.11.2024 and 18.11.2024.

Judgment delivered on 26.11.2024

This criminal appeal under Section 10 of the Criminal Law Amendment Act, 1958 is directed challenging the legality and propriety of the impugned judgment and order dated 04.06.2017 passed by Divisional Special Judge, Chattogram in Special Case No. 19 of 2012 arising out of Kotwali Police Station Case No. 37 dated  25.07.2004  corresponding  DAB  GR  No.  23  of  2004 convicting the appellant under Section 409 of the Penal Code, 1860 and section 5(2) of the Prevention of Corruption Act, 1947 and sentencing him to suffer rigorous imprisonment for 03(three) years  and  fine  of  Tk.  10,000,  in  default,  to  suffer  rigorous imprisonment for 6(six) months.

The prosecution case, in short, is that the appellant Md. Rafique  Ahmed  was  the  Deputy  Manager,  Sales,  Jiban  Bima Corporation,  Sales  Office,  Chattogram.  From  20.05.1995  to 30.12.1995, he received total premium amounting to Tk. 1,20,190 from the policyholders (1) Md. Azizur Rahman, Insurance Policy No.  1019330-8,  Insurance  Policy  No.  1019329-0,  Insurance Policy  No.  1048409-5,  Insurance  Policy  No.  3103837-5,  and Insurance Policy No. 3100329-6 and (2) Saidul Haque, Insurance Policy No. 1046274-5. After recovery of the 5 premium from Md. Azizul Haque and one premium of Tk. 30,020 from policyholder Saidul Haque, he did not deposit the recovered premiums against their policy and misappropriated it.

Md. Shamsuddin Ahamed, Sub-Assistant Director of the Anti-Corruption Commission took up the investigation of the case and  during  the  investigation,  he  recorded  the  statement  of witnesses under section 161 of the Code of Criminal Procedure, 1898, seized documents and after completing the investigation, he submitted the memo of evidence. After that, he was transferred and  P.W.  10  Md.  Humayun  Kabir,  Sub-Assistant  Director  of Anti-Corruption Commission, Combined District Office, Cumilla took up investigation of the ease and on 14.06.2010 he obtained the  approval  for  submitting  charge  sheet  and  accordingly,  he submitted charge sheet on 11.08.2010 against the accused under section 409 of the Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947.

After that, the case record was sent to the Senior Special Judge, Chattagram who took cognizance of the offence against the  accused  under  section  409  of  the  Penal  Code,  1860  and section 5 (2) of the Prevention of Corruption Act, 1947 and sent the  records  to  the  Divisional  Special  Judge,  Chattogram  for disposal of the case. During trial, charge was framed against the accused under section 409 of the Penal Code, 1860 and section 5(2) of the Prevention of Corruption Act, 1947 which was read over and explained to the accused and he pleaded not guilty to the charge and claimed to be tried following the law.

The  prosecution  examined  10  witnesses  to  prove  the charge against the accused and the defence cross-examined the prosecution  witnesses,  After  examination  of  the  prosecution witnesses, the accused was examined under section 342 of the Code of Criminal Procedure, 1898 and the defence declined to adduce  any  DW.  After  concluding  trial,  the  trial  court  by impugned  judgment  and  order  convicted  the  accused  and sentenced him as stated above against which he filed the appeal.

P.W. I Md. Ali Hussen stated that in 1999, he joined with Jiban Bima Corporation as Assistant Manager. The accused Md. Rafique  Ahmed  was  Deputy  Manager  of  Sales,  Jiban  Bima Corporation.  From  20.5.1995  to  30.12.1995  he  received  Tk. 12,080, 12,080, 13,980, 58,440 and 10,590 against 5 insurance policies of policyholder Md. Azizur Rahman and Tk. 13,010 as a premium from policyholder Saidul Haque. He did not deposit the said  amount  against  the  insurance  policies  of  the  said policyholders  and  misappropriated  for  which  departmental proceeding  was  initiated  against  him.  He  conducted  the departmental  proceeding  and  the  accused  was  found  guilty. Subsequently,  he  was  dismissed  from  service.  During  cross- examination,  he  stated  that  the  departmental  proceeding  was initiated in 2003. Abdus Salam Sarker was the inquiry officer of the departmental proceeding. He could not say whether Saidul

Haque deposed in the departmental proceeding. He admitted that the departmental proceeding was initiated in the absence of the accused Md. Rafique Ahmed. The policyholder Sarwar made the allegation against the accused. In the departmental proceeding, evidence  was  recorded  in  one  day  and  the  inquiry  officer submitted the report on 14.7.2003. He denied the suggestion that without taking evidence from the policyholders, he submitted a false report.

P.W.2 Md. Monjurul Islam is the Assistant Manager, Jiban Bima  Corporation,  Dhaka.  He  stated  that  the  records  of  the departmental proceeding, total 109 pages, and the note sheet, total 27  pages,  were  seized  and  handed  over  to  his  custody.  He produced the photocopy of the seized document and the original document  is  lying  with  Special  Case  No.  18  of  2012.  The submitted  photocopies  of  the  documents  are  identical  to  the original documents. The seized documents were handed over to his  custody.  He  proved  the  Zimmanama  as  exhibit-I  and  his signature as exhibit-1/1. He proved the documents given to his custody as exhibit 2. During cross-examination, he stated that the accused Md. Rafique Ahmed was not known to him. He came to know about the irregularity of the accused from 1999 to 2000. Immediately after the complaint, no step was taken against him. He could not say whether the policyholders submitted an affidavit stating that the accused misappropriated the premium.

P.W. 3 Md. Aminur Rahman stated that from 16.01.2004 to 2006 he discharged his duty as Inspector of the Bureau of Anti- Corruption. He conducted the inquiry of the nothi No. 87/2003( Tax force-I) on 12.02.2004. On 20.04.2004 at 12.30 he seized record  from  Manjurul  Islam,  Assistant  Manager,  Jiban  Bima Corporation. He proved the seizer list as exhibit 3. He handed over  the  seized  documents  to  the  custody  of  Manjurul  Islam. During the inquiry, he made a recommendation to file cases year- wise for misappropriation of total Tk. 7,08,238.50. While he was discharging  his  duty  as  Deputy  Manager  (Sales),  Jiban  Bima Corporation,  Sales  Office,  Chittagong,  he  lodged  the  FIR regarding the misappropriation of Tk. 1,20,190 from 20.05.1995 to 30.12.1995. He proved the FIR as exhibit-4 and his signature as exhibit-4/1.  He  partly  investigated  the  case.  On  4.10.2002  he seized 5 items of documents. He proved the seizure list as exhibit- 5 and his signature as exhibit-5/1 and handed over the documents to the custody. On 6.10.2004 at noon, he seized documents from Ahmed Sagir.  He proved the seizure  list as exhibit-6 and  his signature as exhibit-6/1. On 7.10.2004, he seized documents from Shafiqur Rahman. He proved the said seizure list as exhibit-7 and his  signature  as  exhibit-7/1.  He  handed  over  the  documents mentioned in the seizure lists (exhibits 6 and 7) to the custody. On 8.10.2004, he seized one item of documents from AKM Sarwar. He  proved  the  seizure  list  as  exhibit-8  and  his  signature  as exhibit-8/1. Subsequently, he handed over the seized documents mentioned  in  exhibit-8  to  the  investigating  officer.  In  the meantime, the Bureau of Anti-Corruption was abolished and the Anti-Corruption Commission was formed. After that, he handed over the records to the new investigating officer. During cross- examination, he stated that during the inquiry, he did not visit the Divisional Office of Jiban Bima Corporation, Chattagram. He did not seize the annual audit report. He could not say whether he sent notice to the accused through registered post. He could not say anything about whether any notice was sent to the accused. He

denied the suggestion that no notice was sent to the accused. He affirmed that a copy of the notice is lying with the records and he did not record the statement of the policyholders. On recall by the prosecution, he stated that he submitted the documents seized based on the seizure list dated 8.10.2004 and proved the same as exhibit 9.

P.W. 4 Mohammad Shah Alam is the Junior Officer, Jiban Bima Corporation. He stated that on 20.4.2004 Inspector Aminur Rahaman,  Bureau  of  Anti-corruption  sized  documents  of  the departmental  proceeding  initiated  against  the  accused  Md. Rafique  Ahmed.  He  signed  the  seizure  list.  He  proved  his signature  on  the  seizure  list  as  exhibit-3/2,  He  denied  the suggestion that he deposed falsely.

P.W.5 Md. Abdus Salam Sarker stated that at the time of occurrence,  he  was  discharging  his  duty  as  Assistant  General Manager,  Jiban  Bima  Corporation,  Head  office,  Dhaka.  A departmental proceeding was initiated against the accused Md. Rafique Ahmed for misappropriation of the premium received from  the  policyholders.  He  was  the  inquiry  officer  of  the departmental proceeding. After inquiry, he submitted the report on 14.07.2003. During cross-examination, he stated that he was the president of the Trade Union of Jiban Bima Corporation. The accused  was  not  present  in  the  departmental  proceeding.  He admitted that the Officers of the Trade Union having published the PR book received the premium from the policyholders for which they were punished. He admitted that in 2001, the name of the accused was included in the list for promotion. He denied the suggestion that he deposed falsely.

P.W.  6  Ahmad  Sagir  stated  that  on  5.10.2004  he discharged  his  duty  as  Manager  of  Area  Office,  Jiban  Bima Corporation, Chattogram. On that day, Inspector Aminur Rahman seized documents, took his signature and handed over the seized documents to the custody of Shafiqur Rahman. He proved his signature as exhibit-7/2. During cross-examination, he stated that the copy of the PR receipt, hand receipt and other documents were seized.

P.W.7  Mizanur  Rahman  is  the  Deputy  Manager,  Jiban Bima Corporation, Chittagong. He stated that on 05.10.2004 he discharged his duty as Assistant Manager, Regional Office. On that day, Inspector Aminur Rahman seized documents from his office and took his signature. He proved his signature as exhibit- 7/3.  During  cross-examination,  he  stated  that  PR  receipt  and insurance records bank deposit slips and other documents were seized. He denied the suggestion that he deposed falsely.

P.W.  8  Md.  Shafiqur  Rahman  Khan  is  the  Assistant Manager, Jiban Bima Corporation, Chittagong. He stated that on 24.10.2004 at 12.45 noon the documents were handed over to his custody. He proved those documents as exhibits 10 to 14. The documents seized on 06.10.2004 at noon were also given to his custody. He proved two sets of records of insurance policy as exhibits-15 to 16. The documents seized on 7.10.2004 at 4.00 pm were given to his custody. He proved the documents as exhibit 17. During cross-examination, he stated that he heard that the accused misappropriated the premium received from the policyholders. The policyholder made the allegation.

P.W. 9 Md. Rashedul Bari was a clerk of Zia and Brothers. He stated that he was a policyholder of Jiban Bima Corporation.

After payment of the premium for five years, he withdrew the money  of  his  policy.  He  stated  that  his  premium  was  not misappropriated. The defence declined to cross-examine P.W.9.

P.W.10 Md. Humayun Kabir is the Sub-Assistant Director, Anti-Corruption Commission, Combined District Office, Cumilla. He  stated  that  the  previous  investigating  officer  Sub-Assistnat Director  Md.  Samsuddin  Ahamed  submitted  the  memo  of evidence. Thereafter, he was transferred. After that, he took up investigation of the case. On perusal of the records, he found that the accused Md. Rafique Ahmed received total Tk. 1,20,190 from the  policyholders  and  misappropriated  without  depositing  the premium against the policies. He obtained approval on 14.6.2010 for  submitting  charge  sheet.  He  proved  the  said  approval  as exhibit 18. During cross-examination, he affirmed that he did not make any investigation. He submitted the charge sheet based on the memo of evidence submitted by the previous investigating officer.

The learned Advocate Mr. Abdus Salam Mamun appearing on behalf of the appellant submits that the accused Md. Rafique Ahmed  was  Deputy  Manager,  Sales,  Jiban  Bima  Corporation, Chattogram and the prosecution failed to prove any money receipt issued  by  the  accused.  He  further  submits  that  the handwriting/specimen signature of the  money receipt No. Cha 62776 (exhibit-9) and 5 money receipts (exhibit-2 series) were not sent to the handwriting expert to prove that the accused received the premiums from the policyholders. The prosecution failed to prove the charge against the accused beyond all reasonable doubt and the trial Court failed to assess and evaluate the evidence of the  prosecution  witnesses  applying  correct  principle  of

appreciation of evidence. Therefore, he prayed for allowing the appeal.

The  learned  Advocate  Mrs.  Quamrun  Nessa  (Ratna) appearing on behalf of respondent No.2 (ACC) submits that the accused received total Tk. 1,20,190 against 5 insurance policies of policy  holder  Md.  Azizur  Rahman  and  one  premium  from policyholder Syed Saidul Haque and the prosecution proved the money receipt No. Cha 62776 issued for Tk.13,020 in favour of Sayed Saidul Haque as exhibit 9 and 5 money receipts regarding payment of the premium by Md. Azizur Rahman as exhibit-2 series. The prosecution proved  the charge  against the  accused beyond  all  reasonable  doubt  and  the  trial  court  on  correct assessment and evaluation of the evidence passed the impugned judgment and order. She prayed for the dismissal of the appeal.

I have considered the submission of the learned Advocate Mr.  Abdus  Salam  Mamun  who  appeared  on  behalf  of  the appellants and learned Advocate Mrs. Quamrun Nessa (Ratna) who appeared on behalf of respondent No. 2(ACC), perused the evidence,  the  impugned  judgments  and  orders  passed  by  the courts below and the records.

It  has  been  alleged  that  the  accused  received  total  Tk. 1,20,190 from two policyholders namely, Md. Azizur Rahman and  Md.  Saidul  Haque  and  the  accused  Md.  Rafique  Ahmed issued the money receipts to the said policyholders.

On perusal  of the money receipt No. Cha  62776 dated 30.12.1995 (exhibit-9) reveals that by issuing said money receipt Tk. 13,020 was received from the policyholder Saidul Haque. The prosecution proved the photocopies of the money receipt No. Cha 521274  dated  26.12.1995  for  payment  of  Tk.  10,590,  money receipt No. (not eligible for reading) dated 23.5.1995 for payment of Tk. 12,080, money receipt No. Cha 433964 dated 26.9.1995 for payment  of  Tk.58,440,  money  receipt  No.  Cha  49773  dated 20.5.1995 for payment of Tk.12,080 and money receipt No. Cha 459965  dated  20.6.1995  for  payment  of  Tk.  13,980.  All  the money receipts (exhibit-2 series) were allegedly issued in favour of  policyholder  Md.  Azizur  Rahman  by  accused  Md.  Rafique Ahmed. As a recipient of the said premium one officer put his initial on the money receipts and there is a seal of the Jiban Bima Corporation, Chattogram on exhibit-9 and 2 series. There is no seal of any particular officer on exhibit- 9 and 2 series. During the trial, the prosecution did not examine the said policyholders as witnesses in the case.

The  original  of  exhibit-2  series  and  9  was  lying  with Special  Case  No.18  of  2012  and  the  photocopy  of  those documents was legally proved in the case. The alleged signatures on the money receipts (exhibit-2 series and 9) were not sent to the handwriting expert to ascertain that the accused issued the money receipts (exhibit-2 series and 9). In the absence of any opinion of the handwriting expert as regards the alleged signature of the accused Rafique Ahmed on the money receipts (exhibit-2 series and 9) it cannot be held that the accused Md. Rafique Ahmed issued those money receipts (exhibit-2 series and 9).

P.W. 5 Md. Abdus Salam Sarker admitted that he was the President of the Trade Union of Jiban Bima Corporation, Area Office, Chattogram and at the relevant time, the Officers of the Trade Union having published the PR book used to receive the premiums from the policyholders for which they were punished.

Therefore, the false implication of accused Md. Rafique Ahmed cannot ruled out.

Because of the above evidence, facts and circumstances of the case, findings, observation and the proposition, I am of the view that the prosecution failed to prove the charge against the accused to the hilt beyond all reasonable doubt.

I find merit in the appeal.

In the result, the appeal is allowed.

The  impugned  judgment  and  order  of  conviction  and sentence  passed  by  the  trial  Court  against  the  accused  Md. Rafique Ahmed is hereby set aside.  

However, there will be no order as to costs.

Send down the lower Court’s records at once.