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 section