IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION) Present:

Mr. Justice Md. Shohrowardi

Criminal Appeal No. 6270 of 2023 Khandaker Soikat

-versus-

The state and another

with

Criminal Appeal No. 6376 of 2023  

Md. Awal Hossan and another -versus-

The state and another

with

Criminal Appeal No. 6314 of 2023

Chinmoy Sarkar -versus-

The state and another

Criminal Appeal No. 6194 of 2023

Md. Kamal Hossain -versus-

The state and another

Mr. Md. Moniruzzaman, Advocate

…..For the appellant in Crl. Appl. No. 6270 of 2023 MS. Farzana Sharmin, Advocate

   …For the appellant in Crl. Appl. No. 6376 of 2023 Ms. Marjina Raihan, Advocate

….For the appellant in Crl. Appl. No. 6314 of 2023 Mr. Charan Chandra Talukder, Advocate

….For the appellant in Crl. Appl. No. 6194 of 2023  Mr. Md. Omar Farook, Advocate

…For the respondent No. 2 in all the appeals Mr. Rezaul Karim, DAG with

Mr. Md. Shahidul Islam, AAG with

M/s. Sharmin Hamid, AAG

….For the State in all the appeals. Heard on 27.10.2024, 28.10.2024, 29.10.2024, 3.11.2024.

     Judgment delivered on 05.11.2024

The  above-mentioned  appeals  have  arisen  out  of  the  impugned judgment and order passed by the trial court. Therefore, all appeals were heard analogously and disposed of by this single judgment.

The  criminal  appeals  mentioned  hereinabove  are  directed  under section 10 (1)(a) of the Criminal Law Amendment Act, 1958 challenging the  legality  and  propriety  of  the  impugned  judgment  and  order  dated 20.06.2023 passed by Divisional Special Judge, Rajshahi in Special Case No. 03 of 2016 (Natore) convicting the appellants under section 511 of the Penal  Code,  1860  and  sentencing  them  thereunder  to  suffer  rigorous imprisonment  for  04  (four)  months  and  to  pay  fine  of  Tk.  1000  (one thousand), convicting the appellant Khandaker Soikat and Chinmoy Sarkar under section 467 of the Penal Code, 1860 and sentencing them thereunder to  suffer  rigorous  imprisonment  for  04  (four)  months  and  fine  of  Tk. 1000(one thousand) and convicting the appellants under section 471 of the Penal Code, 1860 and sentencing them to suffer rigorous imprisonment for 4(four) months and fine of Tk. 1000(one thousand) each which will run concurrently.

The prosecution case in short, is that on 27.03.2014 at 1:00 pm 3 bills were presented in the purchase section of the North Bengal Sugar Mills to pay the value of sugarcane. On 28.03.2014 at 9.00 am 10 bills and at noon 11 bills, total 24 bills, were presented in the account section of the said mills for payment of the value of sugarcane. On examination of the total 24 bills, it was found that the bills were forged and a false seal was

used on the bills and there was no similarity between the submitted bills and the original bills. The mills' authority by office order contained in Memo No. dated 28.03.2014 formed 3 members committee headed by (1). DGM, Naimuddin Uddin (2). Deputy Manager Md. Anowar Hossain,  and  (3).  Deputy  Manager  Atiquzzaman  of  North  Bengal Sugarcane Mills. After inquiry, the inquiry committee found that 24 bills were forged and the names of the cultivators mentioned in the bills are innocent. During the inquiry, it was found that Md. Kamal Hossain, Md. Awal Hossan, Md. Farid Hossan and Md. Shahabuddin presented the forged bills. On 28.03.2014 at 6.00 pm, 4 persons were called to the office of the Deputy General Manager Naim Siddique and they admitted that out of total 24 bills, they received 10 bills from Chinmoy Sarkar and 14 bills from Khandaker  Soikat.  The  accused  persons  in  connivance  with  each  other created/forged the said bills to misappropriate total Tk. 66,820.

After that, S.I. AFM Asaduzzaman took up investigation of the case. Since the alleged offences are scheduled offences under the Anti-Corruption Commission  Act,  2004  the  case  was  sent  to  the  Anti-Corruption Commission, Head Office, Dhaka. After that Wajed Ali Gazi, Assistant Director, Anti-Corruption Commission, Rajshahi was entrusted with  the investigation  of  the  case.  During  investigation,  the  investigating  officer seized the documents and recorded the statement of witnesses under section 161  of  the  Code  of  Criminal  Procedure,  1898.  After  completing  the investigation,  the  investigating  officer  found  prima  facie  truth  of  the allegation made against the accused Khandaker Soikat, Chinmoy Sarkar, Md.  Kamal  Hossan,  Md.  Awal  Hossan  and  Md.  Farid  Hossain  and submitted charge sheet on 04.10.2015 under sections 420/467/468/471/511/ 109 of the Penal Code, 1860 against them. The Senior Judicial Magistrate, Cognizance Court No. 5, Natore took cognizance of the offence against the accused persons and sent the records to the Senior Special Judge, Natore who took cognizance of the offence against the accused under sections 420/467/471/511/109 of the Penal Code, 1860 and sent the records to the Divisional Special Judge, Rajshahi for trial and disposal of the case.

During  the  trial,  charge  was  framed  against  the  accused  under sections 420/467/468/471/511/109 of the Penal Code, 1860 which was read over and explained to them and they pleaded not guilty to the charge and claimed  to  be  tried  following  the  law.  The  prosecution  examined  24 witnesses  to  prove  the  charge  against  the  accused  persons.  After examination of prosecution witnesses, they were examined under section 342 of the Code of Criminal Procedure, 1898 and they declined to adduce any DW. After concluding the trial, the trial court by impugned judgment and order convicted the accused persons and sentenced them as stated above against which they filed the instant appeal.

P.W.  1  Al-Farook  Omar  Sharif  Galib  is  the  Deputy  Manager (Admin)  of  North  Bengal   Sugar  Mills.  He  stated  that  at  the  time  of occurrence on 27.03.2014 he was the Assistant Manager of the said Sugar Mills.  On  that  day,  Farid  presented  3  bills  and  on  28.03.2014  Kamal presented 10 bills, and Awal presented 11 bills for payment of the bills for the sugarcane. On examination of the said bills, it was found that those bills were forged. On 28.03.2014 an inquiry committee was formed. The inquiry committee informed that those bills were forged. 10 bills submitted by Kamal were supplied by Chinmoy Sarkar and 14 bills submitted by Farid and Awal were supplied by the accused Khandaker Soikat. After that, under the instruction of the authority, he lodged the FIR against Khandaker Soikat and  accused  Chinmoy  Sarkar.  He  proved  the  FIR  as  exhibit-1  and  his signature on the FIR as exhibit-1(Ka). During cross-examination, he stated that the bills were not submitted to him. He affirmed that the names of Kamal,  Farid  and  Awal  were  not  mentioned  in  those  bills.  He  was  a member of the inquiry committee formed on 28.03.2014 and he lodged the FIR following the inquiry report. The persons mentioned in the bills were not examined by the inquiry committee. On recall, P.W. 1 proved 24 bills and 3 note sheets (as exhibit-2 series), inquiry report dated 05.06.2014 as exhibit-3, records of the departmental case and the order of dismissal of the accused Khandaker Soikat as exhibit-4, office order dated 21.11.2013 of the said sugar mills, 2 attendances register from December 2013 to March 2015 as exhibit-5 series. The carbon copy of order receipt No. 810, book No. 80901281000 was proved as exhibit-6 series and the weight receipt register of 2013-2014, pages No-1 to 95 as exhibit-7 series. On 10.04.2014 at 2.05 pm ASM Asaduzzaman seized 24 sugarcane-weight receipts. He proved the seizure list as exhibit-10 and his signature as exhibit-10/1. On 16.07.2014 at 10.00 am Wajed Ali prepared the seizure list. He proved the seizure list as exhibit-11 and his signature on the seizure list as exhibit-11/1. He proved 24 sugarcane weight receipts of North Bengal  Sugar Mills Ltd, Natore as material exhibit-I, I/1, I/II. The attendance register of the employees of the North Bengal Sugar Mills from December 2013 to March 2014, 8+8=16 pages,  as  material  exhibit-II,  II/1   and  II/2  series,  photocopies  of  the sugarcane weight receipts No. 810 as material exhibit-III, weight receipt register (description) for 2013 to 2014 (1 to 34 page) as material exhibit-IV. During  cross-examination,  he  stated  that  he  was  not  a  member  of  any departmental proceeding. No payment was made based on the alleged 24 forged weight bills.

P.W. 2 Md. Anowar Hossain was the Deputy Manager of North Bengal   Sugar  Mills.  He  stated  that  on  27.03.2014,  3  bills  and  on 28.03.2014, 21 bills, total 24 bills, were presented. It was suspected that those  bills  were  forged.  An  enquiry  committee  was  formed  for  the examination of the bills. On examination of those bills, it was found that bills were forged. After that a 3 members committee was formed and he was the member of the committee. The accused attempted to withdraw the money but they could not succeed. During cross-examination, he stated that on 28.03.2014 he was instructed to inquire and on 29.03.2014 he submitted the report which was not produced to the court. No letter was issued to the accused Nos. 1 and 2 to appear before the inquiry committee. He did not find any documents that accused No. 1 and 2 forged those bills.

P.W. 3 Khaled Mahmud was the Manager (Production) of North Bengal Sugar Mills. He stated that a committee was formed regarding the said  bills  and  he  was  a  member  of  the  committee.  After  inquiry,  the committee submitted the report. He proved the inquiry report as exhibit-3 and his signature as exhibit-3/Ka. During cross-examination, he stated that he was not a member of the initial inquiry committee. He was a member of the second inquiry committee. In the report, it has been noted that the accused Khandaker Soikat and Chinmoy wrote those bills. He compared the signatures  of  Khandaker  Soikat  and  Chinmoy  Sarkar  in  the  statement recorded during the inquiry and the handwriting on the bills. He admitted that he had no training as a handwriting expert. He denied the suggestion that they did not inquire correctly.

P.W.  4  Md.  Naim  Siddique  was  the  Deputy  General  Manager (Collection)  of  North  Bengal  Sugar  Mills.  The  authority  formed  a  3 members  committee  including  him.  On  examination  of  24  bills,  the committee found that those were forged and accordingly he submitted the report. He proved his signature on the report (exhibit-3) as exhibit-3/Kha. During  cross-examination,  he  affirmed  that  during  the  inquiry  accused Soikat did not admit his guilt.

P.W. 5  Md.  Atiquzzaman is  the Deputy Manager (Accounts) of North Bengal Sugar Mills. He stated that on 28.03.2017, 24 disputed bills were submitted to the North Bengal Sugar Mills. The authority formed a 3- member committee to submit the report within 24 hours and he was the member of the said committee. During the inquiry, the statements of the carriers of the bills and the suspected persons were recorded and all of them stated  that  they  took  the  bills  from  the  accused  Khandaker  Soikat  and Chinmoy Sarkar and submitted the bills to North Bengal Sugar Mills. The inquiry committee found that the accused Khandaker Soikat and Chinmoy Sarkar were responsible for forging those bills and accordingly submitted the report on 29.03.2014. He proved his signature on the report (exhibit-3) as exhibit-3/Ga. In the opinion part of the report, the names of Khandaker Soikat and Chinmoy Sarkar were not mentioned. In the 24 bills, it has been mentioned that accused Khandaker Soikat and Chinmoy Sarkar were the carriers of those bills.

P.W. 6 Akhter Hossain was Deputy General Manager, North Bengal Sugar Mills. He stated that the occurrence took place in 2014. A four- member  committee  was  formed  and  he  was  a  member  of  the  said committee.  Khaled  Mahmud,  Saifur  Rahman  and  Chand  Ali  were  the members of the said committee. A committee was formed in the year 2013- 2014  regarding  24  suspected  forged  bills.  A  complaint  was  filed  on 05.04.2014 regarding the forgery of the sugarcane weight receipts against the accused Khandaker Soikat and on 22.04.2014 another complaint was made  on  the  same  issue.  Khandaker  Soikat,  an  employee  of  the  said sugarcane mills, had given his reply which was found not satisfactory. After that,  a  four-member  committee  was  formed.  During  the  inquiry,  the committee  recorded  the  statement  of  witnesses  and  collected  the  audio record  of  the  concerned  persons  who  submitted  the  sugarcane  weight receipts and submitted the report on 05.06.2014. He proved his signature on the report (exhibit-3) as exhibit-3/Gha. During cross-examination, he stated that  on  13.05.2014  the  inquiry  committee  was  formed.  On  19.05.2014 another amended committee was formed. He was a member of the second inquiry committee which was a high-powered committee and recorded the statement of total 16 witnesses. He could not say the name of the person who had written the weight receipts. In the report, it has been mentioned that the handwriting of accused Khandaker Soikat was compared with the handwriting  of the weight  receipts. Kamal submitted 10 receipts, Awal submitted  11  receipts  and  Farid  submitted  3  receipts.  Farid  was  an employee of the Mills. He did not name the Kamal as accused. In the report, it has been mentioned that the accused Chinmoy was not an employee of the mills. Kamal, Awal and Farid stated that they got the weight receipts from accused Khandaker Soikat. During the inquiry, the committee did not find any receipts in the custody of the accused Soikat and Chinmoy. Shohidul

Islam, uncle of the accused Soikat, was the President of the CBA of North Bengal Sugar Mills. He admitted that he is not a handwriting expert. He affirmed that an attempt was made to misappropriate total Tk. 66,820. He denied the suggestion that the accused persons were not involved in the occurrence. He affirmed that he did not make any recommendation against the accused Kamal, Awal and Farid.

P.W.  7  Biddut  Kumar  Pal  is  the  Account  Assistant,  Accounts Section, North Bengal Sugar Mills. He stated that on 28.03.2014 weight receipts were submitted for examination. On examination, he found that one bill was forged. Subsequently, 9 receipts were given. On examination of the 10 bills, he found that those were forged. After that 11 bills were submitted which were also found forged. He examined the exhibited bills. During cross-examination, he stated that he examined total 21 receipts.

P.W. 8 Saidur Rahman was a Workshop Helper of North Bengal Sugar Mills. He stated that on 29.01.2015 Assistant Director Md. Wazed Ali Gazi of the Anti-Corruption Commission seized documents from the Deputy General Manager Khaled Mahmud. He proved the seizure list as exhibit-8 and his signature on the seizure list  as exhibit-8/1. He was a member of the inquiry committee. The Deputy General Manager Khaled Mahmud, Chand and Akhter were the members of the committee. Akter sir had given the proposal to the inquiry committee. The committee found the truth of the allegation against the accused Khandaker Soikat and Chinmoy Sarkar. He proved the attested copy of the inquiry report (total 7 pages) as exhibit-9. During cross-examine, he stated that he was the Joint Secretary of the CBA and Shahidul Islam was the President of the CBA and accused Khandaker Soikat is the nephew of Shahidul Islam. He was a member of the inquiry committee and represented the labour. The officers conducted the inquiry and he was along with them. He signed the inquiry report following the instruction of Akhtar Hossain. He denied the suggestion that he deposed falsely.

P.W.  9  Chand  Ali  was  discharging  his  duty  as  Manager  on 13.05.2014. He was a member of 4 members committee. He found the truth of the forgery against accused Khandaker Soikat. He stated that he signed the report (exhibit 9). During cross-examination, he stated that he did not compare the signature of accused Soikat. He affirmed that Farid submitted 3 bills, Awal submitted 11 bills and Kamal submitted 10 bills.

P.W. 10 Liakat Ali Khan was the Head of the Centre of Sugar Mills. On  27.03.2014  Shahabuddin  presented  3  weight  receipts  to  compare whether those receipts were genuine or not. He requested to keep those for verification.  He  informed  me  that  he  got  those  bills  from  Farid.  On examination of the bills, he found that none of the mills signed the bills. After that, he informed the matter to the department for taking necessary action. During cross-examination, he stated that Shahabuddin was known to him.

P.W. 11 Zahedul Islam is the Purchase Clerk of North Bengal Sugar Mills.  He  stated  that  since  2000  he  has  been  discharging  his  duty  as purchase clerk. He used to take the weight of the empty vehicles. After taking  weight,  he  signed  the  weight  bills.  The  authority  of  the  mills presented 24 bills to him. He affirmed that he did not sign 24 bills. The accused Chinmoy Sarkar was not an employee of the mill. Shahidul Islam was the President of the North  Bengal   Sugar Mills and Soikat  is  the nephew of Shahidul Islam. The officers of the ACC also produced the bills to him. He denied the suggestion that he signed the bills or he deposed falsely.

P.W. 12 Md. Showkat Hossain is the Seasonal Purchase Clerk of North Bengal Sugar Mills. He stated that the weight of the vehicles was taken along with the sugarcane. He took the weight of the vehicles. After taking weight, he signed the weight receipts. In the receipts, the net weight and the weight of the sugarcane is written. He did not sign the weight receipts produced by the officer of the Anti-Corruption Commission. He did not take the measurements of the vehicles mentioned in the weight receipts. He did not sign the exhibited weight receipts (24 receipts). During cross- examination, he could not say where the receipts were produced.

P.W. 13 Md. Shahid Alam is the Checking Clerk of the Sugarcane Accounts Section. He stated that he has been discharging his duty in the mill since 2007. The occurrence took place during 2013-2014. He was entrusted with the duty to examine the value of the sugarcane and  the weight of the vehicles and sugarcane. He did not sign 24-weight receipts. The mill authority did not issue the receipts. During cross-examination, he stated that he was not aware where from the bills were produced.

P.W. 14 Md. Monjur Rahman was the Seasonal Checking Clerk of North Bengal Sugar Mills. He stated that he was discharging his duty since 2011. The occurrence took place in the year 2013-2014. On 28.03.2014 he came to his office. It was informed that a forged bill was found. He heard from Biddut Kumar that 1 forged bill was found from Kamal. He called Kamal to find out whether there was any other forged bill. He admitted that there were 9 forged bills. He affirmed that he got those bills from Soikat. The accused Soikat handed over those forged bills. Biddut Kumar Pal took the bills from Kamal. At 11-11.30, Awal also had given a few bills to verify. On examination, he found that those bills were forged. After that, he along with Awal and bills went to Deputy General Manager (Accounts). He handed over those bills to the Deputy General Manager from the hand of the accused Awal. The General Manager (Accounts) handed over those bills to Biddut Kumar for verification. He affirmed that he did not sign any bill. During  cross-examination,  he  affirmed  that  he  heard  from  Kamal.  He denied the suggestion that he deposed falsely.

P.W. 15 Md. Nurul Islam is the Head of Center (Sugar), North Bengal Sugar Mills. He stated that he has been discharging his duty since 2009. In 2013-2014, he was the Head of the Center. He did not sign the exhibited bills. He did not sign the book No. 810. The exhibited weight receipts and Book No. 810 were forged in connivance with the accused persons. During cross-examination, he stated that the officers of the mills produced those bills. No payment was made as regards the disputed weight receipts. He could not say who had written the disputed weight receipts. He could not say from home the weight receipts were produced.

P.W. 16 Ahamed Ali has been discharging his duty as Head of the Center(Sugar), North Bengal Sugar Mills since 2012. In 2013-2014, he was discharging his duty in the mill. The officer of the mill and the officer of the Anti-Corruption  Commission  produced  the  photocopy  of  the  weight receipts and book No. 810. He did not sign the weight receipts and book No. 810. Soikat forged those bills. During cross-examination, he stated that at the relevant time, he was the Head of the Center(Sugar). He did not sign the weight receipts and no payment was made regarding the weight receipts. He could not say when the weight receipts were submitted. At the time of producing the forged bill to him, the accused Soikat and Chinmoy were not present. He could not say who signed the bills.

P.W. 17 Md. Jamal Hossain was the General Manager (Accounts) of North Bengal Sugar Mills. He stated that on 28.03.2014 he was discharging his duty as General Manager of North Bengal Sugar Mills. On that day, the Seasonal Checking Clerk Md. Monjur Hossain presented Awal to him and told that there were some weight receipts. At that time, he instructed me to produce those receipts. Md. Monjur Hossain handed over those receipts to Biddut Kumar Pal who verified those weight receipts. He found that those were  forged.  He  prepared  the  note  sheet  and  instructed  them  to  take appropriate action based on the report submitted by the inquiry committee against the accused Soikat and Chinmoy. He denied the suggestion that he was instructed to file the case without knowing anything.

P.W. 18 Md. Obaidullah stated that since 2011 he was discharging his duty as Sugarcane Purchase Clerk. In 2013- 2014, he was discharging his duty as a checking clerk. He was entrusted to write the daily weight and number on the weight receipts. He did not sign 24 sugarcane weight receipts (material exhibit-I). He did not write the daily number and current number of the 24-weight receipts. He heard from Biddut that accused Soikat and Chinmoy forged those bills. During cross-examination, he stated that he was the checking clerk. He denied the suggestion that he did not hear or see anything.

P.W.  19  Md.  Atiur  Rahman  stated  that  since  2007  he  was discharging his duty as seasonal purchase clerk at the mill gate. He was entrusted to write the names of the cultivators and weight in the weight receipts. He did not sign 24-weight receipts (material exhibit-I). Biddut Babu said that Soikat and Chinmoy forged those bills. He stated that he is not aware whether he stated to the investigating officer that the accused Soikat and Chinmoy forged those bills.

P.W. 20 Shahinur Rahman, Seasonal Purchase Clerk, was tendered by the prosecution and declined by the defence.

P.W.21 Wazed Ali is the Deputy Director (retired) Anti-Corruption Commission, Khulna. He stated that from January 2014 to November 2015 he  was  discharging  his  duty  as  Assistant  Director,  Anti-Corruption Commission,  Combined  District  Office,  Rajshahi.  He  was  appointed  as investigating officer vide Memo No. 1787 dated 30.06.2014. During the investigation, he visited the place of occurrence, recorded the statement of witnesses, seized the documents and prepared the seizure list. The accused Khandaker Soikat, Chinmoy Sarkar, Md. Kamal Hossain, Md. Awal and Md. Farid made attempt to misappropriate Tk. 66,840 by forging sugarcane weight  receipts.  During  the  investigation,  he  found  the  truth  of  the allegation against the accused persons and submitted a memo of evidence on 09.09.2015 against them. After getting approval, he submitted charge sheet on 04.10.2015 against the accused persons. During cross-examination, he stated that he took up investigation of the case on 11.07.2014. He is the second investigating officer. He denied the suggestion that on perusal of the inquiry report submitted by the mill authority, he submitted a charge sheet. He did not seize 24 forged weight receipts from accused Khandaker Soikat and Chinmoy Sarkar. In the FIR, the name of the accused Md. Kamal Hossain, Md. Awal Hossan and Md. Farid Hossan were not mentioned.

P.W.  22  Motiar  Rahman  stated  that  on  04.04.2014  he  was discharging his duty as officer-in-charge of Lalpur Thana, Natore. On that day, Al-Faruque Omor lodged a written FIR and he recorded the same. He proved  his  signature  on  the  FIR  as  exhibit-1(Kha),  1(Ga)  and  1(Gha). Initially,  Sub-Inspector  AFM  Asaduzzaman  was  appointed  as  the investigating officer. Since the offence alleged is a scheduled offence under the Anti-Corruption Commission Act, 2004 the case was sent to the Anti- Corruption Commission. During cross-examination, he stated that he only recorded the FIR.

P.W.  23  AFM  Asaduzzaman  is  the  Police  Inspector,  DB, Lalmonirhat. He stated that on 04.04.2014, he discharged his duty as Sub- inspector of Lalpur Thana, Natore. He took up the investigation of the case from the Officer-in-Charge. He visited the place of occurrence and prepared the sketch map and index. He proved the sketch map as exhibit-12 and his signature  as  exhibit-12/1.  He  proved  the  index  as  exhibit-13  and  his signature on the index as exhibit-13/1. He seized 24 weight receipts. He proved his signature on the seizure list (exhibit-10) as exhibit-10/2. He recorded  the  statement  of  witnesses  under  section  161  of  the  Code  of Criminal Procedure, 1898. Since he was transferred, he handed over the records  to  Iqbal.  The  accused  Khandaker  Soikat  did  not  make  any confession.

P.W. 24 Md. Reazul Haque is the Security Officer (retired) of North Bengal Sugar Mills. He stated that on 10.04.2014 he discharged his duty as Security  Officer  of  North  Bengal  Sugar  Mills.  On  that  day,  S.I.  AFM Asaduzzaman prepared the seizure list at 2.05 pm and he signed the seizure list. He proved his signature on the seizure list (exhibit-10) as exhibit-12/2. During cross-examination, he stated that he only signed the seizure list and he is an employee of the security section.

The learned Advocate Mr. Md. Moniruzzaman appearing on behalf of the appellant Khandaker Soikat submits that the weight receipts (material exhibit-I) was not sent to the handwriting expert to prove that the bills were written  by  accused  Khandader  Soikat  and  the  signature  of  the  accused Khandaker Soikat given at the time of examination of the accused under section 342 of the Code of Criminal Procedure, 1898 is not identical to the handwriting of the material exhibit-1 and the trial court most illegally held that 24 bills were written by the accused Khandaker Soikat and he handed over those weight receipts and bills to accused Md. Awal Hossan, Md. Farid Hossan  and  Md.  Kamal  Hossain.  He  further  submits  that  the  accused Khandaker Soikat did not present the bills to the North Bengal Sugar Mills and the prosecution failed to prove the charge against the accused beyond all reasonable doubt. He prayed for allowing the appeal by setting aside the impugned judgment and order passed by the trial court.

The learned Advocate Ms. Marjina Raihan appearing on behalf of the appellant Chinmoy Sarkar submits that no evidence was adduced by the prosecution to prove that the accused had written the bills and submitted to the  North  Bengal  Sugar  Mills.  The  trial  court  relying  on  the  hearsay evidence convicted the accused and the prosecution failed to prove the charge against him beyond all reasonable doubt.

The learned Advocate Ms. Farzana Sharmin appearing on behalf of the  accused  Md.  Awal  Hossan  and  Md.  Farid  Hossan  submits  that  no evidence was adduced by the prosecution to prove that the accused Md. Awal Hossan and Md. Farid Hossan presented the bills knowing that those are forged bills. The prosecution failed to prove that the accused Md. Awal Hossan and Md. Farid Hossan forged the bills and the trial court without any legal evidence convicted the accused persons. Therefore, she prayed for setting aside the impugned judgment and order passed by the trial court.

The learned Advocate Mr. Sharon Chandra Talukder appearing on behalf of the accused Md. Kamal Hossain submits that the prosecution failed to prove that the accused forged any bill (material exhibit-I series) and submitted the bills knowing that the bills were forged. The trial court without any legal evidence convicted the accused. He also prayed for setting aside the impugned judgment and order passed by the trial court.

The learned Advocate Mr. Md. Omar Farook appearing on behalf of respondent No. 2 (ACC) in all the appeals submits that in the report dated 05.06.2014 (exhibit 3/Ka), it has been opined that the accused Khandaker Soikat  forged  the  bills  and  the  trial  court  on  correct  assessment  and evaluation of the evidence adduced by the prosecution arrived at a finding that the signature of the accused Khondaker Soikat given at the time of examination under section 342 of the Code of Criminal Procedure, 1898 is identical  to  the  handwriting  on  the  bills  (material  exhibit-1  series).  He further submits that the accused Khandaker Soikat and accused Chinmoy Sarkar forged the bills and submitted forged bills through the accused Md. Kamal Hossain, Md. Farid Hossan and Md. Awal Hossan to the North Bengal Sugar Mills to misappropriate total Tk. 66,840 and the trial court on proper  assessment  and  evaluation  of  the  evidence  rightly  convicted  the accused persons. He prayed for the dismissal of the appeals.

I have considered the submission of the  learned Advocates who appeared on behalf of the appellants, learned Advocate  Mr. Md. Omar Farook  who  appeared  on  behalf  of  respondent  No.  2(ACC)  in  all  the appeals, perused the evidence, the impugned judgments and orders passed by the courts below and the records.

On  perusal  of  the  records,  it  appears  that  on  27.03.2014  and 28.03.2014, total 24 bills (material exhibit-I) were presented to P.Ws. 5 and 7 to verify the genuinity of those bills and after verifying the bills, P.Ws. 7 and 10 had given 3 notes on 28.03.2014. In the note dated 28.03.2014 given by  P.W.  10  Md.  Liakot  Ali  Khan  it  has  been  stated  that  3  bills  were presented by one Md. Shahabuddin (exhibit-2). Two notes were given by P.W. 7 Biddut Kumar Pal which were exhibited as exhibits- 2/1 and 2/2. In exhibit-2/1  it  has  been  mentioned  that  11  bills  were  presented  to  the accounts section for verification and in exhibit-2/2, it has been mentioned that Md. Kamal Hussain, a labourer of the factory, presented 10 sugarcane bills valued at Tk. 27,500 for verification. On perusal of the FIR (exhibit-1), it reveals that the accused Khandaker Soikat and Chinmoy Sarkar are the FIR-named accused and accused Md. Kamal Hossain, Md. Awal Hossan and Md. Farid Hossan are witnesses of the FIR. Therefore, it is clear as daylight that accused Md. Farid Hossan and Md. Awal Hossan did not present any bill to the North Bengal Sugar Mills for verification.

On perusal of the evidence, it appears that after the presentation of 24 bills (material exhibit- I series), the authority of North Bengal Sugar Mills formed 2 committees. One committee was formed headed by Md. Naimuddin Siqquique (P.W. 4) and PWs. 2 Md. Anwar Hossain and P.W.5 Atiquzzaman were the members of the said committee who submitted the report on 29.3.2014 (exhibit-3/Kha) and the inquiry committee found the involvement of accused Khandaker Soikat and Chinmoy Sarkar. No adverse remark has been made by the said committee against the accused Md. Farid Hossain, Md. Kamal Hossain and Md. Awal Hossan. Another committee was formed headed by Akter Hossain (P.W. 6) and P.Ws. 3, 8 and 9 were the  members  of  the  said  committee.  After  inquiry,  the  said  committee submitted the report on 05.06.2014. In the report dated 05.6.2014(exhibit- 3), it has been opined that the accused Chinmoy Sarkar and Khandaker Soikat created/supplied 24 bills (material exhibit-I series). P.W. 2 stated that the inquiry committee did not find any evidence that accused Nos. 1 and 2 forged the bills. Bills were not seized from the possession of Khondaker Soikat and Chinmoy Sarker and at the time of presentation of the bills they were not present.

On the assessment of the evidence of the prosecution witnesses, the trial court held that the signature of the accused Khandaker Soikat given at the time of examination of the accused under section 342 of the Code of Criminal  Procedure,  1898  is  identical  to  the  handwriting  of  24  bills (material exhibit-I series). Under section 73 of the Evidence Act, 1872 the court  is  empowered  to  compare  the  admitted  signature  of  any  person. During the investigation, the signature of accused Khandaker Soikat and the alleged handwriting of the bills were not sent to the handwriting expert to ascertain that the signature of accused Khandaker Soikat given at the time of examination of the accused under section 342 of the Code of Criminal Procedure, 1898 is identical to the alleged handwriting of the bills (material exhibit- I series.) No evidence was adduced by the prosecution that accused Khandaker Soikat and Chinmoy Sarkar presented any bill.

It is the duty of the prosecution to prove the charge against the accused to the hilt beyond all reasonable doubt by adducing legal evidence. The  court  will  not  act  as  a  prosecutor  to  ensure  the  conviction  of  the accused. No step was taken by the prosecution to ascertain the alleged handwriting of the accused Khandaker Soikat on the bills (material exhibit-I series) sending those bills to a handwriting expert. Nowadays, science has developed  to  the  highest  peak.  The  trial  court  should  not  compare  the signature of the accused by it resorting to the unsatisfactory and dangerous mode  of  comparison  of  the  disputed  signature  or  handwriting  with  the admitted signature or handwriting without expert opinion.

At this stage, it is relevant here to rely on a decision made in the case of Tarak Chandra Majhi vs Atahar Ali Howlader and others reported in 8 BLC (AD) (2003) 67(Md. Ruhul Amin, J), judgment dated: 29.10.2002 para 14 wherein it has been held that;

“In case of contentious writing, signature, etc, though the  provision  of  section  73  of  the  Evidence  Act permits  the  court  to  compare  the  contentious signature with the admitted signature, the safe and best course, in our view, for the court would be to avoid  the  practice  of  comparing  the  writing  or signature, etc and should not stake its judgment on the opinion formed or view taken upon resorting to risky  or,  in  other  words,  ‘unsatisfactory  and dangerous’ procedure.”

Since  the  trial  court  compared  the  signature  of  the  accused Khandaker Soikat,  it  is the bounden duty of this court to  compare the admitted signature of the accused Khandaker Soikat put at the time of examination of the accused under section 342 of the Code of Criminal procedure, 1898. On careful examination of the signature of the accused Khandaker Soikat given at the time of examination under 342 of the Code of  Criminal  Procedure,  1898  and  the  alleged  handwriting  of  24  bills (material exhibit-I series) it reveals that the handwriting of said 24 bills are not identical to the signature of accused Khandaker Soikat given at the time of examination under section 342 of the Code of Criminal Procedure, 1898. Therefore, I am of the view that the trial court wrongly held that the accused Khandaker Soikat wrote 24 bills (material exhibit-1 series).

No  evidence  was  adduced  by  the  prosecution  that  the  accused Chinmoy  Sarkar  forged  the  bills  (material  exhibit-I).  The  signature  of Khandaker Soikat at the time of his examination under section 342 of the Code of Criminal Procedure, 1898 is not identical to the handwriting on the material exhibit-I. The prosecution failed to prove that accused Khandaker Soikat and Chinmoy Sarkar forged 24 bills (material exhibit-I). There is no allegation against the accused persons that they have withdrawn the money of 24 bills.  It  is  found that one Shahabuddin  presented 3 bills  but  the prosecution neither cited him as accused nor examined him in the case as witness.

In view of the above evidence, facts and circumstances of the case, findings, observation and proposition, I am of the view that the prosecution failed to prove the charge against the accused persons beyond all reasonable doubt  and  trial  court  without  proper  assessment  and  evaluation  of  the evidence illegally passed by the impugned judgment and order.

In the result, all appeals are allowed. The impugned judgment and order  of  conviction  and  sentence  passed  by  the  trial  court  against  the accused 1). Khandaker Soikat 2). Md. Awal Hossan 3). Md. Farid Hossan 4). Chinmoy Sarkar and 5). Md. Kamal Hossain are hereby set aside.

Send down the lower Court’s record at once.