In the Supreme Court of Bangladesh High Court Division

(Criminal Appellate Jurisdiction)

Present:

Mr. Justice Mustafa Zaman Islam And

Mr. Justice Md. Aminul Islam

Criminal Appeal No. 7233 of 2014.

Md. Sarwar Hossain

…….Convict-Appellant.

-Versus-

The State and another

…...Respondents.

Mr. Md. Muslem Uddin Bhuiyan, Advocate

……For the Appellant. Mr. Shaheen Ahmed Khan, DAG with

Mr. Md. Asaduzzaman, A.A.G

Mr. Md. Mizanur Rahman, AAG and

Mr. Md. Akbor Hossain, A.A.G

……..For the respondent No.1

Mr. Shaheen Ahmed, Advocate

……For the respondent No.2

Heard On 01.12.2022 and 05.01.2023 Judgment on 12.01.2023.

Md. Aminul Islam, J:

This Criminal Appeal is directed against the judgment and order of conviction and sentence dated 20.10.2014 passed by the learned Special Judge, Court No. 02, Dhaka in Special Case No. 06 of 2012 arising out of Dhanmondi Police Station

Case No. 53 dated 30.06.2004 corresponding to G.R. No. 104 of 2004 convicting and sentencing the convict appellant and sentencing him to suffer rigorous imprisonment for 3 (three) years with a fine of Taka 18,78,000/-(eighteen lakh seventy eight thousands) under section 409 and read with section 109 of the Penal Code.

The prosecution case, in short, is that one Mr. Md. Abu Bakar Siddique, Inspector, Anti Corruption Commission, Dhaka Anchal, Dhaka as informant lodged an First Information Report (FIR) with Dhanondi Police Station on 30.06.2004. It was stated that the accused persons including accused-appellant who are serving in Agrani Bank Limited, Green Road Branch, Dhaka created a false loan in collusion with each other under fraudulent and misusing their power with a view to obtain illegal gain and having withdrawn the amount of Tk. 18,78,000/-/-(eighteen lakh seventy eight thousands) embezzled the said amount of money for which the said FIR was lodged under sections 406/409/420/34 of the Penal Code and read with section 5(2) of the Prevention of Corruption Act, 1947 noted that the appellant was the Jamader (MLSS) of the said Branch of the Agrani Bank. Hence, the prosecution case.

Ram Mohon Nath, Deputy Director of Anti Corruption Commission, Main Branch, Dhaka (P.W.6) was assigned with the investigation and investigated the case. Thereafter completing the investigation submitted charge sheet being No. 88 dated 19.06.2011 against the accused appellant and others under section 409/109 of the Penal Code and read with section 5(2) of the Prevention of Corruption Act, 1947. The learned Judge of Senior Special Court, Dhaka upon taking cognizance and the case was ready for trial, then the case was sent to the learned Judge of Special Court No. 02, Dhaka for trial and disposal. The learned Judge of Special Court No. 02, Dhaka was framed charge on 19.06.2012 under section 409/109 and read with section 5(2) of the Prevention of Corruption Act, 1947 against the accused appellant and others and the charge was read over him, he pleaded not guilty and claimed to be tried.

The prosecution examined as many as 6 (six) witnesses out of 8 (eight) charge sheet witnesses, which the defence examined none.

Having gone through the impugned Judgment and order of conviction and sentence, it finds that the prosecution witnesses along with Exhibits and material Exhibits to prove the case in hand and the defense has also cross-examined the witnesses thoroughly to ascertain veracity and credibility. Now let us discuss the evidence of the aforesaid prosecution witnesses in order to assertion how far the prosecution has succeeded improving the charge leveled against the appellant.

During trial P.W.1 Shafiuddin Ahmed deposed that, while he was working as an officer in Agrani Bank, Green Road Branch, Abu Bakar Siddique, the investigating officer of this case, on behalf of the then Anti-Corruption Bureau on 22.10.2003 at 15.00 hours from Zulfiqar Ali, Assistant General Manager, seizure list Ka to Umma prepared seizure list in front of him and his signature on it which was m