High Court Division
Md. Omar Faruk v The State and others
Criminal Appeal(H) 7712/2014 · Appeal allowed; appellant acquitted · Decided 10 September 2026
The appellant, a postal operator who had acted as Upazila Post Master of Aditmari Upazila Post Office while the regular post master was on leave, was accused of misappropriating government money and absconding after failing to hand over charge. An inventory showed a shortage of Tk. 13,12,750.94. The Special Judge, Lalmonirhat convicted him under section 409 of the Penal Code and section 5(2) of the 1947 Act and sentenced him to imprisonment and fines. On appeal, the High Court Division accepted that a shortage was proved but found that no witness saw the accused take or convert the money. The prosecution had not shown that Tk. 9,00,000 drawn from the head post office reached Aditmari, nor that the accused personally received a Tk. 3,00,000 deposit, and there were gaps in evidence on cash balances, remittance and seizure. Proof of shortage and suspicion arising from his absence could not replace proof of entrustment and dishonest misappropriation. The conviction was set aside and the appellant acquitted.
- Whether proof of a shortage of postal money, without proof of entrustment or dominion and dishonest misappropriation by the accused, can sustain a conviction under section 409 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947.
- For an offence under section 409 of the Penal Code, the prosecution must prove beyond reasonable doubt not only a shortage but that the money was entrusted to, or within the dominion of, the accused in his official capacity and that he dishonestly misappropriated or converted it.
- Mere proof of shortage or loss of public money does not by itself establish criminal breach of trust.
- The existence of a transaction followed by a shortage cannot dispense with proof of the accused's possession or dominion over the particular money and his dishonest conversion of it.
- The accused's absence from office and failure to hand over charge may call for explanation but cannot, without reliable evidence linking him to the missing money, establish the ingredients of the offence; suspicion, however strong, cannot take the place of proof.
- As the essential ingredients of section 409 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 were not proved, the conviction and sentence were set aside and the appellant acquitted.
Mere proof of shortage or loss of public money does not, by itself, establish criminal breach of trust. The prosecution must independently prove the foundational fact of entrustment or dominion and thereafter establish dishonest misappropriation or conversion by the accused.
