Present:

Mr. Justice Md. Shohrowardi Criminal Appeal No. 3855 of 2018

Md. Shahjahan Mia and others

-Vs-

The State and another

                               Mr. Md. Ahsan Ullah, Advocate with

Mr. S.M. Sanour Hossain, Advocate  

 …. For the appellants Mr. Md. Omar Farook, Advocate ………for the respondent No. 2 (ACC) Mr. Md. Monirul Islam, DAG with M/s.Anjuman Ara Begum, AAG with M/s. Kazi Shamsun Nahar, AAG with Mr. Md. Shamim Khan, AAG

….for the State

Heard on 22.01.2023, 30.01.2023, 12.02.2023, 14.02.2023, 15.02.2023 and 19.02.2023.

     Judgment on 26.02.2023

This  appeal  is  directed  under  Section  10  of  the  Criminal  Law Amendment Act, 1958(Act No. XL of 1958) challenging the legality of the judgment and order of conviction and sentence dated 28.03.2018 passed by the Special Judge, Court No.6, Dhaka in Special Case No. 06 of 2011 arising  out  of  Kafrul  Police  Station  Case  No.  40  dated  21.05.2008 corresponding A.C.C.G.R. No. 109 of 2008 convicting the appellants under Sections 409/109 of the Penal Code, 1860 and sentencing them to suffer simple imprisonment for 05 (five)  years and also to pay a fine of Tk. 19,64,459 (nineteen lac sixty-four thousand four hundred fifty-nine) against appellant Md. Shahjahan, to pay a fine of Tk. 32,75,870.50 (thirty-two lac seventy-five thousand eight hundred seventy point fifty) against appellant Md. Abdus Satter and to pay a fine of Tk. 1,65,152 (one lac sixty-five thousand one hundred fifty-two) against appellant Md. Humayun Kabir and also  convicting  the  appellants  under  Section  5(2)  of  the  Prevention  of Corruption Act, 1947 and sentencing them to suffer simple imprisonment for 05 (five) years and also to pay a fine of Tk. 19,64,459 (nineteen lac sixty-four  thousand  four  hundred  fifty-nine)  against  appellant  Md. Shahjahan, to pay a fine of Tk. 32,75,870.50 (thirty-two lac seventy-five thousand eight hundred seventy point fifty) against appellant Md. Abdus Satter and to pay a fine of Tk. 1,65,152 (one lac sixty-five thousand one hundred fifty-two) against appellant Md. Humayun Kabir, which shall run concurrently.

The prosecution case, in short, is that the accused persons received total  Tk.  1,23,39,958  from  the  owners  of  2659  motor  vehicles  and fraudulently forged the seal, tax tokens and the deposit slips (ACG-67) and without depositing the said amount to the BRTA misappropriated the same. Md.  Showkat  Ali,  former  Deputy  Postmaster  General,  at  the  time  of inspection, found that 06(six) accused persons  misappropriated the said amount  between  27.03.2005  to  29.06.2005.  Accused  Md.  Abul  Kalam former Sub-Post Master, Sub-Post Office, Mirpur was discharging his duty from  20.07.2003  to  20.07.2004  and  he  misappropriated  Tk.  68,09,868. Accused Md. Mohiuddin Ahmed, Sub-Post Master was discharging his duty from 21.07.2004 to 02.07.2007 in the Sub-Post Office, Mirpur, Dhaka and he  misappropriated  Tk.  18,  324.  Accused  Md.  Shahjahan  Mia  was discharging his duty as Postal Operator of said office from 27.12.2003 to 27.06.2004 and he misappropriated Tk. 19,64,459. Accused Md. A. Sattar was  discharging  his  duty  as  Postal  Operator  in  the  said  office  from 29.01.2014  to  30.07.2004  and  he  misappropriated  Tk.  32,75,870.50. Accused Md. Humayun Kabir was discharging his duty as Postal Operator in the said office from 09.02.2004 to 11.08.2004 and he misappropriated Tk. 1,65,152. Accused Kazi Md. Arif was discharging his duty as Postal Operator  in  the  said  office  from  23.12.2003  to  09.06.2004  and  he misappropriated Tk. 1,06,284.50.

P.W.  13  Md.  Talebur  Rahman,  the  Assistant  Director  of  Anti Corruption  Commission  was  appointed  as  the  investigating  officer  and during the investigation, he found the prima facie truth of the allegation against the accused persons and others. The Anti Corruption Commission vide Memo No. 13567 dated 06.09.2009 has given approval for submission of charge sheet against the accused persons under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 and the investigating officer submitted charge sheet on 30.09.2009 against the accused persons. Thereafter, the case record was transmitted to the Court of Metropolitan Senior Special Judge, Dhaka for trial and disposal who took  cognizance  of the offence  against the  accused persons under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947.

After that, the case was transferred to the Special Judge, Court No. 6, Dhaka for trial. The trial court by order dated 2.6.2011 framed charge against the accused persons under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. During the trial, the prosecution examined 14 witnesses  and  thereafter the accused persons  were  examined  under  section  342  of  the  Code  of  Criminal Procedure, 1898 and they declined to examine any DW.

P.W. 1 Md. Moshiur Rahman is the Inspector, Post Office, North Division, Dhaka. He stated that at the time of inspection  in July 2005 Deputy Post Master General, North Division, Dhaka found that Sub-Post Master Abul Kalam, Sub-Post Master (1) Mohiuddin Ahmed (2) Postal Operators Md. Shahjahan Mia, (3) A. Sattar (4) Md. Humayun Kabir and (5) Haji Md. Arif in connivance with each other fraudulently forged the seal,  receipt  of  tax  token  ACG-67  and  realised  tax  amounting  to  Tk. 1,23,39,958  from  the  2659  owners  of  the  motor  vehicles  between 20.07.2003 to 02.07.2007 and misappropriated the same amount. In the inspection report it has been mentioned that at the time of payment of the tax in the said post office, owners of the motor vehicles submitted tax tokens of the previous year which is kept along with the Bangladesh Form No.  403N.  At  the  time  of  inspection,  the  motor  tax  tokens,  the  daily schedule MT-17 tax register and the MP-22 ledger have been verified. At the time of renewal, the serial number of the tax token, account number, date of payment of tax, date of issue, etc. are required to be written. After scrutiny of the daily payment of tax schedule of that date, account number of the vehicle, vehicle number and period of payment of tax if not found in the schedule it is to be presumed that tax of the previous year has been misappropriated. As per paragraph No. 2 of Special Circular No. 26 dated 8.6.1991, the ledger was not maintained. The Sub-Post Masters and the Postal  Operators  who  discharged  their  duty  at  the  relevant  time misappropriated the amount. The Sub-Post Masters Md. Abul Kalam and Mohiuddin Ahmed misappropriated the tax deposited by the owners of the motor vehicles. Accused Md. Abul Kalam, former Sub-Post Master, BRTA Post Office during his tenure between 20.07.2003 to 20.07.2004 issued 274 forged  tax  tokens  and  misappropriated  Tk.  6,89,868.  Accused  Md. Mohiuddin  Ahmed,  former Sub-Post  Master, during his  tenure  between 21.07.2004 to 02.07.2007 issued 03 forged tax tokens and misappropriated Tk. 18,324. Accused Md. Shahjahan Mia former Postal Operator during his tenure between 27.12.2003 to 27.06.2004 issued 864 forged tax tokens and misappropriated  Tk.  19,64,459.  Accused  Md.  A.  Sattar,  former  Postal Operator during his tenure between 19.01.2004 to 30.07.2004 issued 1404 forged  tax  tokens  and  misappropriated  Tk.  32,75,870.50.  Accused  Md. Humayun  Kabir,  a  former  Postal  Operator,  during  his  tenure  between 23.12.2003 to 09.06.2004 issued 70 forged tax tokens and misappropriated Tk. 1,65,152. Accused Kazi Md. Arif, a former Postal Operator, during his tenure between 23.12.2003 to 09.06.2004 issued 44 forged tax tokens and misappropriated  Tk.  1,06,284.50.  As  per  instruction  of  DPMG,  North Division, Dhaka contained in Nothi No.

the informant lodged the FIR. He proved the FIR as exhibit-1 and his signature as exhibit-1/1.

He stated that on 14.09.2008 between 11:00 to 13:30 hours he took custody  of  the  goods  mentioned  in  the  seizure  list.  He  proved  the Zimmanama as exhibit-2 and his signature as exhibit-2/1. He proved the MT-17 register, total 03 (three) bundles of records (schedule of April, May and June of 2004) as material exhibit-II series. He proved the tax token Bangladesh Form No. 403N dated 15.09.2008. He proved the zimmanama as exhibit-3 and his signature as exhibit-3/1. During cross-examination, he stated  that  following  the  inquiry  report  made  by  Deputy  Post  Master General(PW.9), he lodged the FIR. He did not make any inquiry regarding the misappropriation as mentioned in the FIR. On 21.05.2008, the Deputy Post Master General has given approval to lodge the FIR. The occurrence took place between 20.07.2003 to 02.07.2007 and at the relevant time, he was posted at Mohammadpur, Newmarket, Jigatla, Inspection Division. The documents were seized from the concerned Post Masters of the G.P.O. A receipt is issued by the post office when a tax token is given. The money receipt is called ACG-67. The Deputy Post Master General instructed him to  lodge  the  FIR  and  during  the  investigation,  the  investigating  officer collected ACG-67 form from the GPO. During cross-examination, he stated that he is not aware as to whether between 02.07.2003 to 02.07.2004, the BRTA has given any objection as regards the adjustment of the tax tokens and during investigation he did not examine the MT-17 register and MT-12 ledger. 

P.W. 2 Md. Jalal Uddin is the Superintendent of Post Office, North Division, Dhaka. He stated that while he was discharging his duty at Post Office,  North  Division,  Dhaka  on  26.06.2008,  Inspector  Md.  Moshiur Rahman lodged the FIR with Kafrul Thana and the investigating officer seized total 153 pages of documents on 19.09.2008 from his office and circular No. 26 dated 06.01.1991. He proved the zimmanama as material exhibit-III and his signature as exhibit-2/2. During cross-examination, he stated that between 26.06.2008 to 03.05.2011, he was discharging his duty as Superintendent. He was not aware as regards the date of occurrence and at the relevant time he was not working in the Post Office, North Division, Dhaka. Mahbubul Haque was in charge of the Superintendent at the time of occurrence or before the occurrence.

P.W. 3 Md. Jahirul Islam stated that he signed the seizure list on 14.09.2008  sitting  in  Room  No.  228(Kha),  North  Division,  Dhaka.  He signed the seizure list  (exhibit-2) and his  signature as exhibit- 2/3. On 14.09.2008,  Deputy  Post  Master  General  Jalal  Uddin  seized  documents contained  in  Nothi  No.   M.Btax/BRTA,  Mirpur  and  the  Special Circular dated 08.06.1991 issued by Director General.

P.W. 4 Mozammel Haque Bhuiyan is the S.P.M., G.P.O, Dhaka. He joined as S.P.M. on 03.07.2007 in the office of BRTA Post Office, Mirpur. On 16.09.2008, Assistant Director Md. Talebur Rahman, Anti-Corruption Commission, seized 22 ledgers (MT22) which have been produced in Court and prepared a seizure list on 16.09.2008. He proved the seizure list as exhibit-4 and his signature as exhibit-4/1. He proved the zimmanama as exhibit-5 and his signature in the zimmanama as exhibit-5/1. He proved 22 ledgers (MT22) as material exhibit-IX.

P.W. 5 Md. Jane Alam is the Postal Operator, Tejgaon, Post Office, Dhaka. He stated that on 16.09.2008 while he was posted as Postal Operator at BRTA Post Office, Mirpur, Mozammel Haque Bhuiyan was the Sub-Post Master in that office. The investigating officer Talebur Rahman seized the MT-22 ledger in his presence and prepared a seizure list. He proved his signatures as exhibit-4/2 and 4/3. He stated that the material exhibit-IX has been seized in his presence.

P.W. 6 Sheikh Nazmul Islam is the Postal Operator at Mirpur Sub- Post Office. He stated that while he was discharging his duty in the mid of 2008 at BRTA Post Office. Investigating Officer Talebur Rahman, seized MT-  22  ledgers  from  Postmaster  Mozammel  Haque  Bhuiyan  in  his presence.  He  proved  his  signature  in  the  seizure  list  dated  16.09.2008 (exhibit-4) as exhibit-4/4.

P.W. 7 Khan Hasan Mohammad Iqbal Masud is the Deputy Post Master, Dhaka Division. He stated that between 22.10.2007 to 22.12.2010, he was posted in the Post Office, North Division, Dhaka and at that time former  D.P.M.G  Mr  Shaukat  Ali  (P.W.9)  found  that  the  tax  of  motor vehicles have been misappropriated and submitted a report as regards the misappropriation of Tk. 1,23,38,958 against the former Sub-Post Master Abul Kalam, former Sub-Post Master Md. Mohiuddin, Postal Operator Md. Shahjahan, Postal Operator A. Sattar, Postal Operator Humayan Kabir, and Postal  Operator  Kazi  Arif.  The  investigating  officer  took  specimen signatures of the employees in his presence.

P.W. 8 Syed Morshedur Rahman is the owner of the car No. Dhaka Metro  13-Ga-7989.  He  stated  that  he  paid  the  tax  on  his  vehicle  on 07.07.2004 at Mirpur BRTA Post Office. Thereafter, a receipt was issued and the same was submitted to the BRTA.

P.W.  9  Md.  Shawkat  Ali  is  the  Deputy  Secretary,  Ministry  of Education, Dhaka. He stated that between 29.4.2004 to 14.01.2007, he was discharging his duty as D.P.M.G, North Division, Dhaka and in July 2005 he visited BRTA Sub-Post Office, Mirpur between 27.3.2005 to 29.6.2005. During his inspection, he examined the records to ascertain whether the tax receipts for the previous years and the present year have been deposited in the government exchequer. During the inspection, he found that out of 74000 motor vehicles, the tax of 2659 motor vehicles, total Tk. 1,23,39,958 have  been  misappropriated.  Accused  Md.  Abul  Kalam  Azad misappropriated Tk. 68,09,868 between 20.07.2003 to 20.07.2004. Accused Mohiuddin  Ahmed  misappropriated  Tk.  18,314  between  21.07.2004  to 02.07.2007. Accused Md. Shahjahan Mia misappropriated Tk. 19,64,459 between 27.12.2003 to 27.06.2004. Accused Md. A. Satter misappropriated Tk.  32,25,870/50  between  29.01.2004  to  30.07.2004.  Accused  Md. Humayun  Kabir  misappropriated  Tk.  1,65,152  between  09.02.2004  to 11.08.2004. Accused Kazi Arif misappropriated Tk. 1,06,184/50 between 23.12.2003 to 09.06.2004. He proved the inquiry report as exhibit-6 and his signature as exhibit-6/1. He stated that based on his inquiry report Md. Moshiur Rahman lodged the FIR. During cross-examination, he affirmed that the tax of total 2658 motor vehicles have been misappropriated.

P.W. 10 Md. Najmul Hossain is the owner of the private car No. Dhaka Metro Kha-11-9909. He stated that on 11.04.2004 he paid the tax on his car in the BRTA Sub-Post Office and after the deposit, the tax token was issued.

P.W. 11 Md. Jahangir Alam is the Senior ASP, CID, Dhaka. He stated that on 29.1.2008, he was discharging his duty in the Office of the CID, Handwriting Branch, Dhaka. At that time, he received the documents in connection with Kafrul P.S. Case No. 40 dated 21.05.2008 from Md. Talebur Rahman, Assistant Director, Anti-Corruption Commission, Dhaka for the opinion which has been mentioned in Serial Nos. 1 to 18 of his opinion. He proved his report dated 12.11.2008 as exhibit-7. He proved his signature  on  6(six)  pages.  He  proved  the  42  tax  tokens  (39  pages)  as exhibit-8, signatures on 48 pages as exhibit-9 series and the extended 42 pictures have been proved as exhibit-10 series.

P.W. 12 Jesmin Mannan is the Lecturer of Independent University and owner of car No. Dhaka Metro Ga-15-6869. She stated that she paid the tax regularly and on  18.4.2004 she paid  all the taxes  in  favour of the government in the office of the BRTA Post Office.

P.W. 13 Md. Talebur Rahman, Assistant Director, Anti Corruption Commission, Dhaka is the investigating officer. He stated that he received the  report  from  Abul  Hossain,  Deputy  Assistant  Director  of  ACC  and thereafter started the investigation of the case and prepared 4 seizure lists. He handed over the alamat to Inspector Moshiur Rahman. He proved his signature as exhibit- 5/2. He proved his signature in the seizure list dated 14.09.2008 as exhibit-11/1. He proved the Zimmanama as exhibit-12 and his signature as exhibit-12/1. He proved the seizure list dated 15.09.2008 as exhibit- 13 and his signature as exhibit- 13/1. He proved the Zimmanama as exhibit-14 and his signature as exhibit-14/1. He proved his signature in the seizure list as exhibit-4/5 and he proved his signature in the Zimmanama as exhibit-5/2. He recorded the statement of the witnesses under section 161 of the  Code  of  Criminal  Procedure,  1898  and  sent  tax  tokens  to  the handwriting expert vide memo dated 12.11.2008 and after obtaining an expert opinion from the CID it is found that the accused persons (1) Md. Abul Kalam, (2) Mohiuddin Ahmed, (3) Md. Shajahan Mia, (4) Md. A. Sattar  and  (5)  Md.  Humayun  Kabir  signed  the  tax  tokens  and  without depositing the recovered tax misappropriated the same.

Accused  Abul  Kalam  fraudulently  issued  274  tax  tokens  and misappropriated  Tk.  12,98,102  without  depositing  the  money  to  the government  exchequer.  Accused  Md.  Mohiuddin  Ahmed  fraudulently issued 2 tax tokens and misappropriated Tk. 12,091 without depositing the money to the government exchequer. Accused Shajahan Mia fraudulently issued 864 tax tokens along with Md. Abul Kalam and they in connivance with  each  other  misappropriated  Tk.  39,28,918  without  depositing  the money to the government exchequer. Accused Abdus Sattar fraudulently issued 1414 tax tokens along with Md. Abul Kalam and in connivance with each  other  they  misappropriated  Tk.  65,91,741  without  depositing  the money  to  the  government  exchequer.  Accused  Md.  Humayun  Kabir fraudulently  issued  70  tax  tokens  along  with  Md.  Abul  Kalam  and  in connivance  with  each  other  they  misappropriated  Tk.  3,30,304  without depositing the money to the government exchequer. Thereafter, the Anti Corruption  Commission  vide  memo  No.  

has given sanction for submission of charge sheet  against  the  accused  persons.  He  proved  the  sanction  letter  dated 06.09.2009  and  memo  dated  30.09.2009  as  exhibit-15.  During  cross- examination, P.W. 13 stated that no report has been submitted by the BRTA stating that the tax of 2614 motor vehicles was not adjusted. He seized the office copy of the tax tokens from the office. He could not ascertain which office used to receive the tax tokens, money receipts, deposit slips and recovered  money.  He  denied  the  suggestion  that  the  accused  persons deposited the money to the office of BRTA.

Learned  Advocate  Mr.  Md.  Ahasan  Ullah  appearing  along  with learned Advocate Mr. S.M. Sanuour Hossain on behalf of the appellants submits that they were discharging their duty under P.W. 9 who submitted the inquiry report dated 21.06.2007 (exhibit-6) against the accused persons due to trade union activities and no audit objection has been submitted by the audit department as regards the misappropriation of tax recovered from the owners of the motor vehicles. He further submits that the tax recovered from the owners of the motor vehicles has been deposited to the BRTA and no complaint or allegation has been made by the BRTA to effect that after receiving the tax from the owners of the motor vehicles the accused persons did not deposit the money to the BRTA and in the absence of any report from the audit department or BRTA the offence of misappropriation cannot be proved and only to harass and humiliate the accused persons, P.W. 9 falsely implicated them in this case and the prosecution failed to prove the charge against the accused persons beyond all reasonable doubt. He also relied on the decision made in the case of Shakir Hossain vs. The State reported in 9 DLR(SC)(1957) 14.

The learned Advocate Mr. Md. Omar Farook appearing on behalf of respondent No. 2 submits that the appellants are the Postal Operators and they  received  the  tax  from  the  owners  of  motor  vehicles  and  issued false/forged  tax  tokens  to  the  owners  of  the  motor  vehicles  without maintaining the MT-17 register and MT-22 ledger and misappropriated the tax without depositing the same to the BRTA violating the Special Circular No. 26 dated 08.06.1991. In the expert opinion exhibit-7, P.W. 11 opined that the accused persons in connivance with principal accused Md Abul Kalam and A. Sattar issued the forged tax token (MT 17) and without making  any  entry  in  MT  22  ledger  misappropriated  the  tax  without depositing the same to the BRTA. P.W. 9 in his report (exhibit-6) opined that  the  accused  persons  violating  Circular  No.  26  dated  08.06.1991 misappropriated the tax amounting to Tk. 1,23,39,958 recovered from 2659 motor vehicles. Therefore, they committed offence under sections 409/109 of  the  Penal  Code,  1860  read  with  section  5(2)  of  the  Prevention  of Corruption Act, 1947 and the prosecution witnesses proved the charge to the hilt against the accused persons beyond all reasonable doubt. He also relied  on  the  decision  made  in  the  case  of  Shakir  Hossain  vs.  The State(Supra).

The issue involves in the instant appeal as to whether in the absence of any audit objection or any complaint from the BRTA, the prosecution proved the charge against the accused persons relying on the report dated 21.06.2007 (exhibit-6) submitted by P. W. 9 prepared based on tax token register  (MT-17)  material  exhibits-II  series  and  MT-22  ledger  material exhibit-IX.

At the very outset, it is noted that the DG of the Postal Department of Bangladesh issued Special Circular No. 26 dated 08.06.1991 as regards the acceptance of the tax of the motor vehicles and deposit of the tax of motor vehicles to the BRTA. Under the Special Circular No. 26 dated 08.06.1991 issued by the DG of the Postal Department of Bangladesh tax on motor vehicles is required to be paid in cash in the designated post office and BRTA shall supply a cash book of 3 foils against each motor vehicle at the time of receiving cash from each motor vehicles and the Postal Operator shall verify in details the purpose of depositing the cash in each foil. After receiving the cash, the Postal Operator shall deliver one foil to the owner of the vehicle and shall send another copy of the foil to the BRTA and a copy of  the  counterfoil  shall  preserve  in  the  concerned  post  office.  After examination of each foil supplied by the BRTA, the Postal Operator shall make  an  entry  in  the  concern  register  MT  17,  18,  19,  20  and  21  and thereafter, shall sign in 3 foils. The Post Operator shall file up the ACG-67 form used for the motor vehicles and shall submit the same along with the foil book to the APM/ Supervisor. After receiving the foil book and ACG- 67, the APM/Supervisor shall examine the same and put a seal and sign on the  fixed  place.  After  signing  the  foil  book  and  ACG  67,  the APM/Supervisor shall preserve the third foil and hand over a foil to the owner of the motor vehicle. No. 2 foil shall send to the BRTA along with the daily statement. The post office shall maintain separate registers of MT 17 and MT22 ledger permanently as proof of payment of tax of motor vehicles and deposit the recovered tax to BRTA.

The Sub-Post Master and the Counter Operator are jointly liable for making entry of tax of motor vehicles in the MT 17 register and MT22 ledger. In the inquiry report dated 21.06.2007 submitted by DPMG to the Additional Post Master General (exhibit-6) it is stated that from 27.03.2003 to 29.06.2005, total Tk. 1,23,39,958 have been recovered by the accused persons but did not maintain the MT 17 register and MT 22 ledger and without depositing the said amount to the BRTA the accused persons in connivance  with  each  other  misappropriated  the  same.  During  cross- examination, the defence suggested to P.W. 9 that the accused persons received the said amount and deposited the same to BRTA.

In the inquiry report dated 21.06.2007 submitted by P.W. 9 DPMG Md. Shawkat Ali to the Additional Post Master General, it has been opined that;

“

”

On perusal of the Special Circular No. 26 dated 08.06.1991, it appears that Sub-Post Master and Postal Operator shall jointly maintain the third foil of tax recovered from the owners of motor vehicles in the daily schedule (MT 17) and  also  maintained a permanent  register  as regards recovered tax against each motor vehicle after making entries in the MT 22 ledger. The defence did not cross-examine P.Ws. 1 and 9 as regards the maintenance of the MT 17 register and MT 22 ledger. MT 17 register and MT 22 ledger proved that after recovery of the tax on motor vehicles the concerned Postal Operators and the Sub-Post Masters deposited the realized tax to the BRTA. By giving suggestions to P.W. 9 defence admitted that they have received the tax from the owners of the motor vehicles, but the accused persons did not maintain the MT 17 register and MT 22 ledger. Therefore, I am of the view that no complaint or report is necessary from the  audit  department  or  from  the  BRTA  to  the  effect  that  the  Postal Operators and the Sub-Post Masters recovered the tax on motor vehicles and misappropriated the same without depositing to the BRTA. MT 17 register and MT 22 ledger are the only materials to prove that the tax on motor vehicles have been realized from the owners of the motor vehicles and the Sub-Post Master and the Postal Operator deposited the realized tax to the BRTA following the Special Circular No. 26 dated 08.06.1991.

The accused persons by giving suggestions to P.W. 9 admitted that they  have  received  the  tax  from  the  owners  of  the  motor  vehicles. Therefore, the accused persons have to prove that they have deposited the recovered tax amount to the BRTA. The prosecution is always bound to prove  the  charge  to  the  hilt  against  the  accused  persons  beyond  all reasonable doubt. Section 106 of the Evidence Act, of 1872 states that when any fact is especially within the knowledge of any person the burden of proving  that  fact  is  upon  him.  The  Sub-Post  Masters  and  the  Postal Operators are entrusted with the tax recovered from the owners of the motor vehicles. Under Section 106 of the said Act, the Sub-Post Masters and the Postal Operators are legally obliged to explain that following the Special Circular dated 08.06.1991 they have deposited the tax to the BRTA. The accused persons have failed to discharge their duty to prove that the tax recovered  by  them  from  the  owners  of  the  motor  vehicles  have  been deposited to the BRTA and thereby violated the Special Circular dated 08.06.1991 without maintaining the MT 17 register and MT 22 ledger and the trial court rightly convicted the accused persons under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947.

In the case of Shakir Hossain vs. The State reported in 9 DLR (SC)(1957) 14 it has been held as under:

“We have found on the evidence that the accused has given an explanation of what he did with the money which may well be true and that it is not proved that he  misappropriated  it.  It  is  true  that  under  the departmental rules, the money could not have been collected by the appellant or by the Patwari but we must not lose sight of the fact that the appellant was working under the Patwari as his Assistant and if the Patwari  required  him  to  collect  the  money  on  the representation that the Tehsildar had directed such collections to be made, the irregularity committed by the  appellant,  even  if  he  had  knowledge  of  such irregularity, would not  make him criminally liable unless it is proved that he knew that the amount thus collected was to be misappropriated by Ali Akbar Shah or somebody else. Of such knowledge, there is not the slightest indication on the record”.

Now another issue is required to be examined by this court as to whether the trial court was legally justified in awarding sentence passed against the appellants considering the gravity of the offence.

Criminal  breach  of  trust  committed  by  public  servant  is  also  a criminal misconduct punishable under section 5(2) of the Prevention of Corruption  Act,  1947.  Section  26  of  the  General  Clauses  Act,  1897 prohibits double punishment under two different enactments but the said provision does not prohibit trial or conviction under different enactments. Section 26 of the General Clauses Act, 1897 states that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.  In  the  instant  case,  the  accused  persons  were  convicted  and sentenced twice under section 409/109 of the Penal Code, 1860 and also under section 5(2) of the Prevention of Corruption Act, 1947. Section 5(4) of the said Act is more explicit. Section 5(4) of the said Act states that the provision of this section shall be in addition to, and not in derogation of any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him.

From the proposition discussed herein above it is crystal clear that trial and conviction under Sections 409/109 of the Penal Code, 1860 and under  Section  5(2)  of  the  Prevention  of  Corruption  Act,  1947  are permissible under the law but accused persons cannot be punished twice under the said enactments. In the above backdrop of the matter, the trial court  is  not  legally  justified  in  awarding  the  sentence  under  different provision  of  the  two  enactments.  The  trial  court  is  at  liberty  to  award sentence under either of the provision of the said enactments. 

The  above  view  of  this  Court  leands  support from  the  decision made in the case of Muhammad Sadiq Javeed vs. the state reported in 21 DLR (WP) 62 and ATM Nazimullah Chowdhury vs. the state reported in 65 DLR 500 para 81.

Accused  Abul  Kalam  is  the  Sub-Post  Master  General  and  the principal  accused.  The  trial  court  found  that  he  misappropriated  Tk. 6703583.50  and  sentenced  him  to  suffer  rigorous  imprisonment  for  05 years.  Accused  Md.  Shahjahan  Mia  is  the  Postal  Operator  and  he misappropriated  Tk.  1964459.  Accused  Md.  Abdus  Satter  is  the  Postal Operator and he misappropriates Tk. 3275870.50 and accused Humayun Kabir is the Postal Operator and he misappropriated Tk. 1,65,152.

Considering the facts and circumstances of the case and the gravity of the offence, I am of the view that ends of justice would be best served if the sentence passed against the appellants are modified as under;

The appellant Md. Abdus Satter is found guilty of the offence under section 409/109 of the Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947 and he is sentenced to suffer rigorous imprisonment  for  03  (three)  years  under  sections  409/109  of the  Penal Code, 1860 and to pay a fine of Tk. 32,75,870.50.

The appellant Md. Sajahan Mia is found guilty of the offence under sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of  Corruption  Act,  1947  and  he  is  sentenced  to  suffer  rigorous imprisonment  for  02(two)  years  under  sections  409/109  of  the  Penal Code,1860 and to pay a fine of Tk.19,64,456.

Appellant Md. Humayun Kabir is found guilty of the offence under sections 409/109 of the Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947 and he is sentenced to suffer rigorous imprisonment for 01 (one) year under sections 409/109 of the Penal Code and to pay a fine of Tk. 1,65,152.

In  view  of  the  above  observation,  findings  and  proposition,  the appeal is disposed of with a modification of the sentence.

The trial Court is directed to do the needful.

Send down the lower Court’s record at once with a copy of this

judgment.

The register of this Division is directed to send a copy of the judgment to all the Senior Divisional Special Judges and Special Judges for compliance of the above view of this court made as regards the provision made in section 26 of the General Clauses Act, 1897.

In  the  case  of  ATM  Nazimullah  Chowdhury  vs  State  reported  in  65 DLR(2013) 500 para-66

….So it is seen that the limitation of one year as contained in the proviso to sub-section (2) of section 222 is not applicable for trial of a person accused of more offences than one under the Criminal Law Amendment Act. In this respect,  it  seems  that  the  learned  Advocate  for  the  Anti-Corruption Commission-respondent  Mr.  Harunur  Rashid  has  rightly  relied  on  the decision in the case of Habibur Rahman Molla vs The State reported in 61 DLR 1. In that decision, it has been held that the period of one year is available in section 234 of the Code of Criminal Procedure; but it is absent in section 6(1B) of the Criminal Law Amendment Act and thereby section 6(1B) excludes the applicability of section 234 which relates to the period of commission of offences. So it is crystal clear that in respect of trial of offences punishable under section 409 of the Penal Code and section 5(2) of the Prevention of Corruption Act under the Criminal Law Amendment Act, the accused-Ambassador may be tried for all such offences irrespective of dates of commission of the same.