IN THE COURT OF SPECIAL JUDGE, ASSAM, GUWAHATIkamrupjudiciary.gov.in/Judgments 2014/special...
Transcript of IN THE COURT OF SPECIAL JUDGE, ASSAM, GUWAHATIkamrupjudiciary.gov.in/Judgments 2014/special...
1
IN THE COURT OF SPECIAL JUDGE, ASSAM, GUWAHATI
Present : Sri Gautam Baruah, AJS, Special Judge, Assam, Guwahati.
SPECIAL CASE NO. 22(A)/2003
STATE OF ASSAMVS.
1. Sri Anador Doley2. Sri Prafulla Chetia, 3. Sri Thaneswar Baruah4. Sri Padmeswar Gogoi5. Sri Rajen Saikia,6. Sri Prahlad Gogoi
................. Accused Persons
Date of hearing : 03.02.2012, 19.03.2012, 29.05.2012, 19.06.2012, 26.07.2012, 14.09.2012, 15.09.2012, 15.09.2012, 06.10.2012, 19.12.2012, 05.01.2013, 18.01.2013,20.03.2013.
Date of statement of accused : 15.11.2012
Date of argument : 13.02.2014 Date of Judgment : 25.02.2014
Result : Acquitted
Advocates for prosecution : Sri Joginder Singh, Sr. Advocate Ld. Special P.P. for the State, Smti. Nabasmita Gogoi Ld. Addl. Special P.P. for the State
Advocates for accuseds : Sri S. K. Lahkar Sri D. Talukdar Ld. Advocates
J U D G M E N T
1. The prosecution case started rolling with the lodging of
an FIR on 26.03.1999 by one Sri Kamaleswar Dutta, Dy. S.P.,
2
Vigilance & Anti Corruption, Assam, Guwahati interalia stating
that a regular enquiry bearing No. 44(9)97 was conducted and
during that enquiry it was found that (i) One Sri Prahlad
Gogoi, Head Pandit, Kawaimari LP School, Dhemaji district
incollusion with one Thaneswar Baruah, Center Secretary,
Dulimer LP Teacher's Center prepared false pay bill for the
month of October, November and December, 1999 in the
name of one Dhireswar Gogoi who had already retired from
service on 30.09.1996 as Head Pandit of Kawaimari LP
School and Sri Thaneswar Baruah drew an amount of Rs.
15634/- from Dhemaji Treasury vide bill Nos. 464 dtd.
31.10.96, 509 dtd. 30.11.96 and 579 dtd. 30.12.96 of Block
Elementary Education Officer office, Dhemaji and
misappropriated the same. However, the money was later
deposited to the Treasury by accused Thaneswar Baruah on
13.05.97 after fraudulently drawing the same on 30.10.96. (II)
Sri Prafulla Chetia, Center Secretary, No. 1 Maridol LP
Teacher's Center drew an amount of Rs. 42167.00 from
Dhemaji Treasury by preparing false house rent bill in the
name of 7 School Mistress vide bill No. 796 dtd. 11.4.97 of
BEEO office Dhemaji. It was also stated that Sri Prafulla
Chetia also drew an amount of Rs. 6000/- in excess vide bill
No. 806 dtd. 10.04.97 being the exgratia of the teacher of the
Center and misappropriated the same. On receipt of
complaint from the School Mistress Anadar Doley, BEEO,
Dhemaji issued notice to Prafulla Chetia to refund the money
and on receipt of the notice Prafulla Chetia deposited the
money in Dhemaji Treasury vide challan Nos. 58 dtd. 5.11.97,
227 dtd. 17.11.97, 103 dtd. 5.12.97, 154 dtd. 11.12.97 and
vide challan No. 299 dtd. 16.5.97. (III) Sri Anadar Doley,
BEEO, Dhemaji has passed the above noted false bills. Sri
Kamaleswar Dutta, the informant as such prayed the O/C,
V&AC to take necessary action against the above named
accused persons.
3
2. After receipt of the FIR Vigilance & Anti Corruption PS,
Assam registered ACB PS Case No. 1/99 u/s 409/468/420
IPC r/w Sec. 13(1)(c)/13(2) PC Act, 1988 and investigated
into.
3. After completion of investigation and after obtaining
necessary prosecution sanctions the I/O Farzan Ali Laskar,
DSP, V&AC filed chargesheet against accused Anadar Doley,
Prahlad Gogoi, Thaneswar Baruah, Prafulla Chetia,
Padmeswar Gogoi and Rajen Saikia u/s 409/471/120(B) IPC
r/w Sec. 13(1)/13(2) of PC Act, 1988.
4. In due course of time the accused persons have
appeared before this court and copies were furnished to the
accused persons and after hearing both sides my Ld.
Predecessor framed charge against the accused persons
namely Prafulla Chetia, Rajen Saikia and Anadar Doley for
misappropriation of Rs. 42,167.00 and Rs. 6000.00 u/s
120(B)/471/409 IPC r/w Sec. 13(1)(c)/13(2) PC Act. My Ld.
predecessor also framed separate charge against accused
persons namely Prahlad Gogi, Rajen Saikia, Anadar Doley
and Thaneswar Baruah u/s 120(B)/471/409 IPC r/w sec. 13(1)
(c)/13(2) PC Act for misappropriation of Rs. 15,634/- and also
framed charge against accused persons namely Padmeswar
Gogoi, Rajen Saikia and Anadar Doley u/s 120(B)/471/409
IPC r/w Sec. 13(1)(c)/13(2) PC Act for misappropriating Rs.
6000/- as excess exgratia. The charges were readover and
explained to the accused persons to which they pleaded not
guilty and claimed to be tried.
5. The prosecution in order to prove the charges against
the accused persons has examined as many as 13 Nos of
witnesses. The defence has also examined as many as 5 Nos
of defence witnesses. I have heard the argument put forward
by both sides and also carefully gone through the entire
record and the evidence brought into the record both oral and
4
documentary by both sides. I have also carefully gone through
the exhibits.
6. POINTS FOR DETERMINATION :
(i) Whether during the month of April, 1997 accuseds
Prafulla Chetia, Rajen Saikia and Anadar Doley being the
public servants entered into a criminal conspiracy to prepare
false house rent bills of 7 school mistress amounting to Rs.
42,167/- and false exgratia bill amounting to Rs. 6000/- and
used the forged false bills as genuine and thereby passed
those bills through the Treasury and misappropriated the said
amount of Rs. 42,167/- and Rs. 6000/- and thereby committed
an offence punishable u/s 120(B)/471/409 IPC r/w sec. 13(1)
(c)/13(2) PC Act?
(ii) Whether the accuseds Prahlad Gogoi, Rajen Saikia,
Thaneswar Baruah and Anadar Doley being public servants
during the period from October, 1996 to December, 1996
entered into a criminal conspiracy to prepare and submit false
bills in respect of retired Headmaster Dhireswar Gogoi to
fraudulently drew an amount of Rs. 15634/- and whether the
accuseds used forged bills as genuine and by passing the
bills through the Treasury misappropriated the said amount of
Rs. 15,634/- and thereby committed an offence punishable
u/s 120(B)/471/409 IPC r/w sec. 13(1)(c)/13(2) PC Act ?
(iii) Whether the accuseds Padmeswar Gogoi, Rajen Saikia
and Anadar Doley being public servants during the period
April 1997 entered into a criminal conspiracy to prepare and
drew false bills amounting to Rs. 17000/- including Rs. 6000/-
excess being the exgratia of school teachers and used the
false bills as genuine and passing the said bills through the
Govt Treasury withdrawn the excess amount of Rs. 6000/-
and misappropriated the same and thereby committed an
offence punishable u/s 120(B)/471/409 IPC r/w sec. 13(1)
(c)/13(2) PC Act?
5
7. DECISIONS, DISCUSSIONS AND REASON THEREOF
:-
The prosecution in order to bring home the charges
against the accused persons has examined altogether 13
Nos of witnesses. Out of these 13 Nos of witnesses 6 Nos of
witnesses namely PW-1 Smti. Niru Chetia, PW-2 Smti Kabita
Gogoi, PW-3 Smti Ghunusa Devi, PW-7 Smti Chenimai
Gogoi, PW-9 Smti Anima Dutta and PW-10 Smti Rangila
Chetia are the 6 Nos of school teachers whose house rent
bills are allegedly been falsely prepared for an amount of Rs.
42167/- and misappropriated by the accused persons.
8. PW-4 Prabat Baruah, PW-5 Deben Duwara are the
seizure witnesses. PW-8 Kamaleswar Dutta is the Enquiry
Officer who conducted Regular Enquiry No. 44(9)97 against
the accused persons. PW-11 Dharmeswar Gogoi and PW-12
Farzan Ali Laskar are the I/Os of the case. PW-6, Hemanta
Kr. Sarma and PW-13 Paramesh Dutta are the concerned
officers who accorded the prosecution sanction against the
accused persons.
9. PW- 1 Smti. Niru Chetia in her evidence deposed that in
October 1989 she joined as Asstt. Teacher, Barphukan LP
School, Maridal, District Dhemaji and since after joining she
has been drawing house rent every months. She deposed
that accused Prafulla Chetia was the Center Secretary of
several schools of that area and pay bills of teachers are
prepared by the Center Secretary. She deposed that in 1997
she came to know that arrear house rent in her name from the
period from August, 1989 to February 1992 has been drawn
by the Center Secretary Prafulla Chetia and after drawal of
the same was not given to her as she was not entitled to get
the same. She also deposed that accused Prafulla Chetia has
also drawn arrear house rent of her colleagues namely Kabita
Gogoi, Ghunusa Devi, Rangila Chetia, Niru Hazarika and
6
Anima Dutta. She also deposed that after preparation of the
bills the Center Secretary submitted the same to ASI of school
and thereafter the bills were passed by BEEO. She also
deposed that when the school authority did not take any steps
regarding the withdrawal they informed the matter to Dy.
Commissioner, Dhemaji. In her cross PW-1 deposed that her
husband Suran Baruah is also a government employee and
initially they both used to draw house rent. Thereafter govt
stopped this practice and allowed only one of the spouse to
draw the house rent. However, later government allowed both
the spouse to draw the house rent again. She also stated in
cross that she has not seen the complaint given to the Dy.
Commissioner and BEEO, Dhemaji in the case record. She
also stated that she has not seen the bills prepared by the
accused Prafulla Chetia in the record. She also stated in
cross that copies of treasury challans in respect of refunded
house rent was given to them.
10. PW-2 Smti Kabita Gogoi and PW-3 Ghunusa Devi also
stated in the same line as of PW-1 and deposed that during
that period Prafulla Chetia was the Center Secretary of that
area and he used to prepare the bills and in 1997 they came
to know that arrear house rent in respect of 7 teachers
including them for the period 1998 to 1992 has been drawn by
accused Prafulla Chetia. The have stated that they first
informed the matter BEEO Anadar Doley who initially denied
the withdrawal the such amount and thereafter they informed
the matter to Dy. Commissioner, Dhemaji. They have stated
that an amount of Rs. 42,000/- has been withdrawn as arrear
by the accused Prafulla Chetia. During their cross they have
admitted that both of their husbands were government
employees as of PW-1 and they both husband and wife used
to draw house rent initially. Thereafter govt stopped this
practice and then allowed only one spouse to draw the house
rent and later government allowed both the spouse to draw
7
the house rent. They have stated that the written complaint
submitted to the Deputy Commissioner and BEEO, Dhemaji
are not found in the case record. They have stated that they
have not seen the bills prepared by accused Prafulla Chetia.
11. PW-7 Smti Chenimai Gogoi deposed that in 1999 she
was serving as Asstt. Teacher in Khajua Block LP School
under Dhemaji PS and at that time Prafulla Chetia was their
Center Secretary. She stated that their bills were prepared by
their Headmaster then handed over to Center Secretary for
submitting to the BEEO office for onward submission to
Treasury office for payment. She stated that after collecting
the salary from the Treasury office/bank the Center Secretary
used to distribute their pay. She stated that Niru Chetia,
Ghunusa Devi also get house rent like her. She stated that
accused Prafulla Chetia used to collect their salary and other
allowances from the bank. In her examination in chief she
also stated that she later got the arrear house rent for about
two years.
12. PW-9 Smti Anima Dutta and PW-10 Smti Rangila Chetia
deposed that they were both working as Asstt. Teacher in
Naharani LP School and their colleagues Niru Chetia,
Ghunusa Devi, Kabita Gogoi and Niru Hazarika were serving
in different schools under the same Center being No. 1
Moridal Center. Both deposed that in 1997 they came to know
that their house rent along with the other 5 teachers named
above were withdrawn by Center Secretary Prafulla Chetia
without their knowledge. They also stated that thereafter they
made a complaint before the BEEO, Dhemaji with copies to
the Dy. Commissioner, Dhemaji and D/I of schools, Dehmaji
and on the basis of their complaint accused Prafulla Chetia
was directed to refund the house rent. Both PW-9 and PW-10
identified M. Exts. 8 as the copy of their complaint petition and
M Exts. 8(1) and 8(2) are the fecimal of the signatures
namely Smti Anima Dutta and Smti Rangila Chetia
8
respectively. PW-10 Smti Rangila Chetia also deposed that at
that time Anadar Doley was the BEEO. In their cross they
have stated that their arrear house rent was wrongly drawn by
accused Prafulla Chetia and after when complaint was made
he refund the same to the Treasury.
13. While appreciating the evidence of PW-1, PW-2, PW-3,
PW-7, PW-9 and PW-10 conjointly we found that during the
period between August, 1989 to February, 1992 the above
named PWs were serving as teachers/ assistant teachers in
different schools under the Moridal Center in the district of
Dhemaji. It also comes into record that at that time accused
Prafulla Chetia was the Center Secretary of the said Center
and at that time accused Anadar Doley was the BEEO. From
their evidences it also appears that in 1997 the above named
witnesses came to know that their arrear house rent for the
period between August, 1989 to February, 1992 was
withdrawn by the Center Secretary Prafulla Chetia without
their knowledge and after coming to know about the same
they complained the same before the BEEO, Anadar Doley
and also informed the then Dy. Commissioner, Dhemaji and
on being asked by the authority accused Prafulla Chetia has
returned the house rent to the Dhemaji Treasury. The
deposition of above named witnesses has brought into the
record the fact that the accused Prafulla Chetia being the
Center Secretary of that particular center in 1997 has
withdrawn house rent for the period from August, 1989 to
February, 1992 of those 6 Nos of teachers amounting to Rs.
42,000/-. It was also brought into the record that at that time
accused Anadar Doley was the BEEO of that area.
14. It is to be kept in mind that charge has been framed
against the accused persons u/s 120(B)/471/409 IPC and u/s
12(1)(c)/13(2) PC Act. To bring home the charges under the
above provisions of law the prosecution must prove that there
was meeting of mind between the accused persons and that
9
they have used false bills as genuine and thereafter by
misusing their official positions have misappropriated arrear
house rent of the above named school teachers.
15. PW-4 Sri Prabat Baruah who is the seizure witness has
been declared hostile by the prosecution. In his deposition
PW-4 deposed that on 11.05.1999 while he was serving as
Peon in the office of the BEEO, Dhemaji, police seized six
documents on being produced by Anadar Doley who was the
BEEO vide seizure list Ext. 1 and he identified his signature
as Ext. 1(1). He has specifically denied about the contents of
that documents. He also stated in cross that he put his
signature in Ext. 1 without knowing its contents.
16. PW-5 Sri Deben Duwara is also a seizure witness who
has been declared hostile by the prosecution. He stated in his
deposition that on 20.4.99 while serving as Peon in the office
of the BEEO, Dhemaji accused Anadar Doley was serving as
BEEO. He stated that police has obtained his signature in Ext.
3 and he put his signature without knowing the contents of the
same. In cross examination by the defence he stated that
except putting the signature he has not stated anything before
the police. In his cross by the Special P.P. he has denied the
fact that police seized 15 Nos of documents vide Ext. 3. He
also denied that on 20.04.1999 police seized treasury challan,
transit register No. 1 of Moridal LPC and Dalimar LPC for
1996-97, bill register of BEEO office, Dhemaji, Payment
registers of Moridal and Dalimar LPCs in BEEO office,
Dhemaji in his presence. He also denied that as office Peon
he knew that Thaneswar Baruah, Center Secretary of Dalimar
Center has drawn three months pay of Dhireswar Gogoi,
Headmaster, Kawaimari LPC, who retired on 31.08.1996 and
Prafulla Chetia had drawn Rs. 41,000/- falsely as arrear
house rent of 6 school teachers and Rs. 6000/- in excess was
refunded.
10
17. While appreciating the evidence of PW-4 it is found that
prosecution has only been able to prove the seizure list Ext. 1.
The contents of the documents in respect of seizure list Ext. 1
has not been proved. PW-5 though admitted his signature in
seizure list as Ext. 3(1) but has denied the seizure of the 15
Nos of documents by the police vide Ext. 3. The seizure of
the above documents vide Ext. 3 as such has not been
proved beyond doubt.
18. PW-8 Sri Kamaleswar Dutta, retired Additional S.P.,
V&AC deposed that on 4.9.97 while he was serving as
DSP,V&AC he was endorsed Regular Enquiry No. 44(9)97
against accused Anadar Doley, BEEO, Dhemaji. He deposed
that the allegation against the accused was that he incollusion
with Center Secretary and in-charge Head Pandit drew salary
of a retired teacher Dhireswar Gogoi for the month of October,
1996 to December 1996 amounting to Rs. 15634/- from
Dhemaji Treasury. He deposed that another allegation against
the accused Anadar Doley was that he incollusion with
Thaneswar Baruah, Center Secretary drew an amount of Rs.
15634/- and incollusion with Prafulla Chetia drew an amount
of Rs. 42,167/- and bill of Rs. 6000/-. He deposed that for the
purpose of enquiry he has gone though the concerned bill
submitted to Dhemaji Treasury and later came to know that
after 3/4 months the concerned Center Secretary through
BEEO Anadar Doley has refunded the drawal amounts to the
Treasury. He stated that on completion of enquiry he
submitted his report to Superintendent of Police, ACB PS and
Ext. 4 is the said report and Ext. 4(1) is his signature. He also
submitted that the Superintendent of Police referred the
matter to the Govt and after receipt of Govt approval he
lodged the FIR against Anadar Doley, Thaneswar Baruah,
Prahlad Gogoi and Prafulla Chetia which was registered as
ACB PS Case No. 1/99. He identified the FIR as Ext. 5 and
Ext. 5(1) is his signature. He stated that during enquiry he did
11
not seize any documents. In his cross he deposed that during
enquiry he interrogated some of the officials but he did not
record their statement. He denied the suggestion that he did
not make the enquiry properly and lodged the FIR without any
basis.
19. PW-11 Sri Dharmeswar Gogoi, retired DSP deposed
that on 26.03.99 while he was serving as Inspector of Police
V&AC the Superintendent of Police endorsed him ACB PS
case No. 1/99 for investigation and on 20.04.99 he seized the
following documents :-(1) Triplicate copy of Treasury Challan
No.299 dated 16.5.1997 for refunding excess Rs.6000/-
drawn in bill No.806 dated 10.4.1997 as exgratia by the
Secretary No. 1 Maridhal L Panchayat Center (M. Ext.1),
(2) Original Treasury Challan No.227 dated 15.11.1997 for
refund of excess drawal in house rent by Sri Prafulla Chetia.
(M.Ext.10), (3) Quadruplicate copy of Treasury Challan
No.103 dated 5.12.1997 for recovery of excess drawn in HR
bill No.796 and TB No.1222 dated 11.4.1997 by Sri Prafulla
Chetia Ex -Secretary of No.1 Maridal LP School (M. Ext.11),
(4) Origianl Treasury Challan No.154 dated 11.12.1997 for
recovery in HR bill No.796 and TB No.1222 dated 11.4.1997
at Maridal LP School Center by Sri Prafulla Chetia. Ex
-Secretary of No.1 Maridal LP School, (M. Ext.12), (5)
Original Treasury Challan No.58 dated 5.11.1997 for recovery
of cash drawn in HR bill No.796 TB No.1222 dated 11.4.1997
of No.1 Maridal LP School Center of Prafulla Chetia Ex
-Secretary of No.1 (M.Ext.13). (6) Original Treasury Challan
No. 206 dated 13.5.1997 for recovery of excess drawn
against bill No.2164 dated 31.10.1996 bill No.509 dated
30.11.1996 and 575 dated 30.12.1996 by Thaneswar Barua,
Dolimari LP School Center(M.Ext.14). (7) Original petition of
Sri Prafulla Chetia, Head Pondit Barphukan LP School to
BEEO to grant HR arrear w.e.f 1.8.1989 to 29.2.1992 to Mr.
Niru Hazarika alongwith 6 others with remarks on the petition
12
by the BEEO directing Saikia to check out and to put up in
note sheet in detailed (M.Ext.15). (8) Office order
No.BEEO/DMJ/17/641 dated 21.8.1997 from the BEEO
Dhemaji to Prfaulla Chetia to refund the arrear HR drawn in
excess vide his earlier order No.BEEO/DMJ/17/461-462 dated
25.5.1997(M.Ext.16). (9) Office order No.BEEO/DMJ/17/495-
97 dated 12.5.1997 from BEEO Anador Doley Dhemaji to
Prafulla Chetia No.1 Maridal LP School Center to refund
Rs.6000/- which was drawn in excess in exgratia bill by
13.5.1997 (M.Ext.17). (10) Transit registrar of No.1 Maridhal
LPC for the year 1996-97 (M.Ext.18). (11) Transit registrar of
Dhalimari LPC for the year 1996-97 (M.Ext.19). (12) Payment
registrar of Maridhal LPC for the year 1996-97 (M.Ext.20).
(13) Payment registrar of Dhalimari LPC for the year 1996-97
(M.Ext.21). (14) Bill registrar of BEEO, Dhemaji for the year
April 1996 to 22.7.1998. (15) Letter No.BEEO/DMJ/16/33/933
dated 22.08.1996 to Sri Direswar Gogoi Headmaster
Kowaimari LP School (M.Ext.22). Ext.3 is the said seizure list
and Ext.3(2) is his signature. He stated that on 22.4.1999 he
seized the following documents from the BEEO Anador Doley
(1) One petition (photostat copy) to BEEO Dhemaji submitted
by Smti Anima Dutta alongwith 5 others Asstt. teachers of LP
School regarding drawal of HR arrear of them by submitting
false HR arrear bills by Sri Prafulla Chetia No.1 Maridhal LPC
with the official order of BEEO dated 15.5.1997 to Chetia to
put up notice to pay the amount by 18.5.1997 (M. Ext.8) (2)
Supporting pay bill of Kawaimari LP school for the month of
November and December 1996 with signatures of Prahlad
Gogoi HM of Kawaimari LP School and Anador Doley BEEO
(M.Ext.23 & 23(1)). He identified Ext.6 as the said seizure list,
Ext. 6(1) as his signature, Ext.6(2) is the signature of accused
Anador Doley and Ext.6(3) as the signature of witness Dilip
Gohain.
13
20. PW-11 has also stated that on 18.06.1999 he seized the
following documents on being produced by Anadar Doley,
BEEO. (1) Original Treasury Challan No.324 dated
30.08.1997 showing refund of Rs.6000/-(six thousand) by Sri
Pademswar Gogoi Secretary Lague Bora LPC while was
drawn excess in Ex Gratia bill No.300 dated 17.4.1997 from
BEEO Dhemaji (M Ext. 3), (2) Office order No.
BEEO/DMJ/16/41/8801-04 dtd. 10.05.1996 appointing Sri
Padmeswar Gogoi Asstt. Teacher, Lakhtakia LP School as
Centre Secretary of LaguaBora LPC (M Ext. 4). He identified
Ext. 2 as the said seizure list, Ext. 2(2) as his signature, Ext.
2(3) as the signature of accused Anadar Doley, BEEO, Ext.
2(4) as the signature of Padmeswar Gogoi.
21. PW-11 further stated that on 11.05.1999 he seized the
following documents on being produced by Anadar Doley,
DEEO. These are :- (1) Appointment order of Sri Prafulla
Chetia, Headmaster of Barphukar LP School as Centre
Secretary of No. 1 Maridal LPC for the year 1996-97 vide
memo No. BEEO/DMJ/16/41/8873-76 dtd. 27.5.96 (M Ext.
24), (2) Appointment order of Thaneswar Baruah,
Headmaster Chengmai LP School as Centre Secretary of
Dalkimari LP C for the year 1996-97 vide memo No.
BEEO/DMJ/8839-43 dt. 18.5.96 (M Ext. 25), (3) Notice vide
memo No. BEEO/DMJ/17/461-62 dtd. 28.5.97 to Sri Prafulla
Chetia, Centre Secretary No. 1 Maridal LP C to refund Rs.
42,167/- drawn as House rent arrear within 1.6.97 by the
BEEO Dhemaji (M Ext. 26), (4) Office copy of order of BEEO
Dhemaji to 7 school mistress to submit arrear HR bill for the
year 1.1.89 to 29.2.92 (M Ext. 27), (5) Supporting bill of
Kawaimari LP School for the month of October 1996 for Rs.
10206/- with signature of Sri Prahlad Gogoi and the BEEO
Anadar Doley (M Ext. 28), (6) Payment Register of No. 1
Maridal LP Centre opf Aragula Circle for the year 1997-98
14
from page No. 1 to 464 (M Ext. 1). Ext. 1 is the said seizure
list, Ext. 1(2) is his signature.
22. During cross PW-11 stated that he simply seized those
documents vide Exts. 1, 2, 3 and 6 but did not investigate
regarding its contents. In cross he further stated that he did
not examine any witness regarding the seized documents and
he has mentioned in his chief about the seized documents as
per description in seizure list.
23. PW-12 Farzan Ali Laskar deposed that on 4.5.2000
while he was serving as DSP, V&AC he was endorsed to
investigate the case and after taking up the case he received
the case diary submitted by his predecessor Sri D. Gogoi. He
also stated that seizure of documents and examination of
witnesses were done by his predecessor. He deposed that
after perusal of the case diary he found that investigation has
almost been completed and during his part of investigation he
only moved to AG office, Assam to seize the original bills, but
the AG office informed that the original bills could not be
traced as the same are misplaced. He stated that he moved
for prosecution sanction from competent authorities and after
receiving the prosecution sanction he has filed the
chargesheet against the accused persons namely Anadar
Doley, Rajen Saikia, Prafulla Chetia, Prahlad Gogoi,
Padmeswar Gogoi and Thaneswar Baruah u/s
120(B)/409/471 IPC r/w section 13(1)(c)/13(2) PC Act vide
Ext. 7. He identified his signature as Ext. 7(1). During his
cross he deposed that he did not examine any witness nor
seized any document. He stated that he simply filed the
chargesheet.
24. PW-6 Sri Hemanta Kr. Sarma and PW-13 Sri Parameswar
Dutta during their evidence have deposed that they have
accorded prosecution sanction against the accused persons
after going through the ejahar and relevant documents and
after applying their own mind. They have exhibited M. Ext. 5
15
as the prosecution sanction against accused Rajen Saikia and
M Ext. 6 as the prosecution sanction in respect of accused
Prafulla Chetia, Prahlad Gogoi, Padmeswar Gogoi and
Thaneswar Baruah and Ext. 8 as the prosecution sanction
against the accused Anadar Doley. The evidence of PW-6
and PW-13 disclosed that they have simply accorded the
prosecution sanction after perusing the records and applying
their mind against the accused persons.
25. While appreciating the evidence of PW-8 Kamaleswar Dutta
we found that during the course of regular enquiry No.
44(9)97 he has enquired against the allegation brought out by
the above named 6 Nos of school teachers aginst the acused
Prafulla Chetia and Anadar Doley along with some other
allegations. However, admittedly during his cross examination
has stated that during enquiry he has not recorded the
statement of witnesses which he interrogated during enquiry.
He also stated that though he examined some documents,
after examination he returned the documents to the Treasury
Office, Dhemaji and to the office of the BEEO, Bordoloni,
Dhemaji. He did not seize any document. In such situation it
has become very difficult for the Court to come to the
conclusion on the basis of whose statement and on the basis
of which documents PW-8 Kamaleswar Dutta prepared the
Enquiry Report, Ext. 4. It further appears that on the basis of
the regular enquiry FIR was submitted and investigated into.
26. When we appreciate the evidence of PW-11
Dharmeswar Gogoi and PW-12 Farzan Ali Laskar the
Investigating Officer (I/Os) of this case we found that the I/O
PW-11 Dharmeswar Gogoi in his cross stated that though he
has seized several documents during his investigation he has
not investigated regarding the contents of those documents.
He also did not examine any witness regarding the seized
documents which he seized vide Ext. 1, 2, 3 & 6. On the other
hand, PW-12 the other I/O deposed that he has not seized
16
any document nor he examined any witness. He simply filed
the chargesheet. The statement of both the I/Os appears to
be contradictory regarding the examination of witnesses. The
I/O PW-11 in cross stated that he did not examine any
witness regarding the seized documents. The other I/O PW-
12 also stated that he also did not examine any witness
during investigation. PW-12 deposed that PW-11 D. Gogoi
was his predecessor regarding investigation of the case. Now
it becomes difficult to understand who has recorded the
statement of witnesses u/s 161 CrPC in such a
circumstances when both the I/Os have denied recording of
the statement of witnesses.
27. The I/O PW-11 during investigation has seized a
number of documents which has also been exhibited in this
case as M. Exts. 9 to 28. However, none of the witnesses
have stated anything regarding the contents of those
documents. The contents of those documents have not been
lawfully proved. Unless and until the contents of documents
are brought into record the same can not be considered as
evidence by the court. In this case charge has been framed
against the accused persons separately for separate
offences. Charge against accused Prafulla Chetia, Rajen
Saikia and Anadar Doley has been framed for
misappropriation of the arrear house rent of Rs. 42167/- and
another Rs. 6000/- as excess exgratia bills, charge has been
framed against the accuseds Prahlad Gogoi, Rajen Saikia,
Anadar Doley and Thaneswar Baruah for fraudulently
withdrawal and misappropriation of Rs. 15634/- by submitting
three months false salary bill of retired Headmaster Dhireswar
Gogoi and charge has been framed against accuseds
Padmaeswar Gogoi, Rajen Saikia and Anadar Doley for
withdrawal Rs. 17,000/- which includes Rs. 6000/- as excess
exgratia of school teachers and for misappropriating the
same.
17
28. While discussing the above evidence of witnesses it is
found that the witnesses have not stated anything regarding
the misappropriation of Rs. 15634/- as well as the
misappropriation of the excess Rs. 6000/- of the exgratia of
school teachers. The witnesses PW-1, PW-2, PW-3, PW-7,
PW-9 and PW-10 have only stated against the accused
Prafulla Chetia for withdrawing Rs. 42,000/- as arrear house
rent for the period of 1989 to 1992 and misappropriating the
same and they have also stated that at that time Anadar
Doley was the BEEO. In this regard charges were framed
against the above named accused Prafulla Chetia and
Anadar Doley with another accused Rajen Saikia u/s
120(B)/471/409 IPC r/w sec. 13(1)(c)/13(2) PC Act. Perusal of
evidence reveals that none of the witnesses has said anything
against accused Rajen Saikia. As the allegation against the
above named accused persons were misappropriation of
money by preparing false house rent bills and using the same
as genuine and thereby misappropriating the same by
abusing their official position the prosecution must prove the
documents which were forged by the accused persons and
used as genuine by them.
29. In this case while appreciating the evidence of PW-5
Deben Duwara it is found that he has denied the seizure of 15
Nos of documents by the police in his presence vide Ext. 3.
On the other hand, the I/O PW-11 D. Gogoi during his
examination in chief has stated that he has seized the original
petition by which Prafulla Chetia, Center Secretary wrote to
the BEEO Anadar Doley to release the HR area of the 7 Nos
of school teachers for the period from 1.8.1989 to 29.2.1992.
PW-11 further deposed that he has seized the office order
dtd. 21.8.1997 of BEEO, Dhemaji directing Prafulla Chetia to
refund the arear house rent drawn by him. The I/O further
deposed that he has seized the 4 Nos of Treasury challan by
18
which Prafulla Chetia has refunded the house rent drawn by
him in 4 installments.
30. It is the requirement of law that the contents of the
documents are to be proved by the maker of the documents
or by any other persons who has acquaintance with the
contents of the said documents. In the instant case PW-4 and
PW-5 seizure witnesses have denied the seizing of those
documents in his present. PW-11 the I/O in his cross
examination has also stated that he did not examine any
witness regarding the seized documents and also he did not
investigate as to the contents of the documents. This
evidence of the I/O shows that the prosecution has not made
any endevour to prove the contents of the said documents. As
the allegation was that false bills were prepared and used as
genuine the prosecution ought to have proved the
documents/bills which were forged by exhibiting the same,
who has prepared those documents / bills and under whose
signatures and handwritings those bills were passed as
required u/s 67 of Indian Evidence Act. Section 67 of the
Indian Evidence Act, 1872 states that if a document is alleged
to be signed or to have been written wholly or any part by any
person, the signature or the handwriting of so much of the
document as is alleged to be in that person's handwriting
must be proved to be in his handwriting. In the instant case
the prosecution has not exhibited any bills showing the same
as falsely prepared by accused Prafulla Chetia. The
prosecution has also not adduced any evidence to show that
the bills were prepared by the accused Prafulla Chetia or that
bills were passed under the signature of Prafulla Chetia or
under the signature of accused Anadar Doley, the then
BEEO. As such the allegation of preparing false bills and
passing the same as genuine remain not proved.
31. Ld. Special P. P. in course of argument has argued that
accused Prafulla Chetia vide M Ext. 15 dtd. 19.03.1997 has
19
prayed the BEEO, Dhemaji, Anadar Doley to release the
arrear house rent of 7 Nos of schools teachers for the period
from 1.8.89 to 29.2.92. The Ld. Spl. P.P. also submitted that
vide M Ext. 16 dtd. 21.8.97 accused Prafulla Chetia was
directed to refund the arrear house rent which he drew in
respect of the above school teachers. It was further submitted
that the accused Prafulla Chetia vide treasury challan Nos.
227 dtd. 15.11.97 (M Ext. 10), No. 103 dtd. 5.12.97 (M Ext.
11), No. 154 dtd. 11.12.1997 (M Ext. 12) and No. 58 dtd.
5.11.97 (M Ext. 13) has refunded a total amount of Rs.
42164/- of the house rent to the government treasury in 4
installments. The Ld. Special P.P. submitted that had the
accused Prafulla Chetia not misappropriated the said arrear
house rent he would not have refunded the same in
government treasury in installments. On the other hand, Ld.
defence counsel has submitted that any documents seized by
the I/O during investigation has to be proved as per procedure
of law. It is submitted that unless the contents of the
documents are proved by the maker of the documents or by
any other person acquainted with the documents the said can
not be accepted in evidence.
32. I have carefully gone through above mentioned M.
Exhibits and also gone through the evidence given by the
witnesses regarding the said M. Exhibits. PW-4 Prabat
Baruah and PW-5 Deben Duwara who were the seizure
witnesses in respect of the M Exts. were declared hostile by
the prosecution. They have denied the contents of the said
documents and also PW-5 denied the seizure of the said
documents. The I/O of this case PW-11 Dharmeswar Gogoi
who in his examination in chief stated that he had seized the
above mentioned M. Exhibits on being produced by accused
Anadar Doley, but during his cross has he stated that he
simply seized the documents and he did not investigate
regarding the contents of the documents. He also stated in
20
cross that he did not examine any witness regarding the
seized documents. The another I/O PW-12 Farzan Ali Laskar
during cross has stated that he did not examine any witness
and also did not seize any documents. From the above it
appears that the witnesses have not stated anything
regarding the contents of the M. Exhibits. The I/O also did not
take any step to investigate regarding the contents of the
documents nor examined any witness who are acquainted
with the contents of those documents.
33. The perusal of the record as well as the documents so
reveals that the I/O did not take any step to find out under
whose handwritings and signatures those above mentioned
M. Exhibits were prepared and submitted. I/O did not take any
steps to send those documents to FSL to examine the
handwritings or the signatures as to whether the same
belongs to the accused persons or not. In such event it is not
possible to come to a clear conclusion that the accused
Prafulla Chetia or Anadar Doley has written those documents
or passed those documents under their signatures.
34. From the above discussions and the available evidence
which has been brought into the record it is found that
prosecution has not been able to prove the charge against the
accused persons viz Anadar Doley, Prafulla Chetia and Rajen
Saikia in respect of criminal conspiracy to misappropriate the
arrear house rent of Rs. 42167.00 and subsequently
misappropriating the same by abusing their official position.
The evidence further discloses that the prosecution could not
bring into the record any material regarding the other
allegations for which charge has been framed against the
other accused persons namely Thaneswar Baruah,
Padmeswar Gogoi and Prahlad Gogoi.
35. It is the principle of criminal jurisprudence that the
prosecution case must stand on his own legs. It is the duty of
21
the prosecution to prove the charge brought against the
accused persons beyond all reasonable doubt. In this case as
appears from the foregoing discussions it is clear that the
prosecution could not bring home the charges against the
accused persons and as such I do not find it necessary to
discuss the evidence of defence witnesses in this case.
36. In view of the above discussions I am constrained to
hold that the prosecution has failed to bring home the
charges against the accused persons. Accordingly all the
accused persons namely Anadar Doley, Prafulla Chetia,
Padmeswar Gogoi, Prahlad Gogoi, Rajen Saikia and
Thaneswar Baruah are acquitted from all the charges. The
bail bonds of the accused persons are shall remain in force
for next six months as per provisions of section 437(A) CrPC.
The seized documents which have been seized by the I/O
during investigation by various MRs. be returned to the
concerned authority in due course of law.
37. Before parting with the judgment it is desirable to bring
into record the indifferent attitude of the Investigating officers
regarding the investigation. The Investigating Officers did not
examine any witness from the concerned office who has
acquaintance with the contents of the seized documents.
More surprisingly the Investigating Officers, who are senior
police officers, did not send the seized documents to the
Forensic Science Laboratory (FSL) to ascertain the
handwriting and signatures appearing in the seized
documents though the specific allegation in the FIR was
regarding false preparation of bills and using as genuine the
false bills and thereby misappropriating the Government
money. In this case the perfunctory nature of investigation has
cost the prosecution dearly. In my view, time has come to
make the Investigating Officers accountable for any
22
perfunctory investigation which is apparent on the face of the
record. It is desirable that the Investigating Agency will take
note of the matter.
Case is disposed of accordingly.
Given under my hand and seal of this 25th Day of
February, 2014.
Dictated and corrected by me.
Special Judge, Assam, Special Judge, Assam, Guwahati. Guwahati.
23
AP P E N D I X
Exhibited by the Prosecution.
1. Ext. 1 Seizure list2. Ext. 2 Seizure list3. Ext. 3 Seizure list4. Ext. 4 Enquiry Report5. Ext. 5 FIR6. M. Ext. 1, 20, 21 Payment Registered7. M. Ext. 2 Supporting bill8. M. Ext. 3, 7, 9 , 19, 11 to 14 Treasury challan9. M. Ext. 4 Officer order 10. M. Ext. 5 , 6 Sanction order11. M. Ext. 8, 15, 16, 17 Petition 12. M. Ext. 18, 19 Transit Book13. M. Ext. 22 Letter for retirement14. M. Ext. 23, 23(1) Bill15. M. Ext. 24, 25 to 27 Letter given by A. Doley 16. M. Ext. 28 Bill
Special Judge, Assam, Guwahati.