IN THE COURT OF SPECIAL JUDGE, ASSAM, GUWAHATI …
Transcript of IN THE COURT OF SPECIAL JUDGE, ASSAM, GUWAHATI …
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IN THE COURT OF SPECIAL JUDGE, ASSAM, GUWAHATI
Present : Sri G. Baruah, AJS,
Special Judge, Assam,
Guwahati.
SPECIAL CASE NO. 29(A)/2001.
(Arising out of SVC P.S. Case No.2/1999)
U/S.120(B)/420/468/471 IPC and U/S.13(1)(c)/13(2) of Prevention of Corruption Act, 1988.
STATE OF ASSAM
VS.
(1) Jogen Bora@ Jogendra Bora
(2) Sri Kamala Sarma.
(3) Smti. Deepika Devi.
(4)Sri Jogeswar Barpatragohain,
Accused Persons.
Date of hearing : 23.8.2004, 27.9.2004, 18.12.2004, 9.3.2005, 6.4.2005, 16.5.2005, 15.6.2005, 18.7,2005, 18.8.2005, 19.9.2005, 28.10.2005, 01.12.2005, 03.01.2006, 8.2.2006, 13.4.2006, 12.1.2007, 6.3.2007, 17.11.2008, 16.7.2009, 18.11.2011, 15.12.2011, 15.12.2011, 20.12.2011 .
Date of statement of accused :20.6.2006, 26.7.2006, 10.8.2006,19.12.2018, 7.01.2019, 05.2.2019, 06.4.2019.
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Date of argument : 03.05.2019.
Date of Judgment : 14.5.2019.
Result : Acquittal.
Advocate for prosecution : Sri M. Haloi, Learned P.P.
Smti. N. Gogoi, Ld. Addl. P.P. .
Advocate for accused : Sri Z.Kamar, Ld. Advocate.
Sri Z. Alam, Ld Advocate.
Sri N.J. Das, Ld. Advocate.
J U D G M E N T
1. The prosecution case started with the lodging of an F.I.R.
by Sri Jagadish Sarmah, Inspector of Police, Vigilance Police Station,
Assam on 24.3.1999 before the Officer-in-Charge, Vigilance Police
Station . In the F.I.R. the informant submitted that he has conducted an
enquiry being Inquiry No.SVC E No.2/1997 against Sri Kamala Sarmah,
Office Assistant in the office of S.I. of Schools, Jonai, Sri Khagen Deori,
UDA, Siba Dutta, UDA, Sri Tarini Gogoi, LDA, Sri Jogen Borah, S.I. of
School under Dhemaji Sub-Division and a police officer namely Medhi of
Dispur Police Station on receipt of allegation through the Chief Minister’s
Office which was originally submitted by one Sri Kirti Kamal Gogoi,
Secretary,Assam Primary/Middle Schools Co-ordination Committee
under Dhemaji district.
2. In the F.I.R. the informant submitted that in the year
1989, hundreds of L.P. School teachers were illegally appointed by the
then S.I. of Schools, Dhemaji Sub-Division against non existent posts
without following departmental norms and procedure and the service of
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such illegally appointed teachers were later terminated by the
Government. It is submitted that most of the terminated teachers
approached the Hon’ble Gauhati High Court and the Hon’ble Gauhati
High Court upheld the decision of the State Government to terminate
the illegally appointed teachers but at the same time the Hon’ble
Gauhati High Court passed order directing the State Government to pay
salaries to the terminated teachers for the period they actually remained
present in their respective schools. In the FIR the informant also
submitted that during enquiry he found that in pursuance to the order of
the Hon’ble Gauhati High Court to pay salary to the terminated teachers
of Dhemaji for the period they actually served as teachers, a total
amount of Rs. 3,73,80,396/- (Rupees Three Crores seventy three lacs
eighty thousand three hundred ninety six) only were sanctioned by the
Government of Assam vide Govt. Letter No. EAA 18/87/596 dated
29.3.1994 and Govt. Letter No. ELC/94-95/26-A dated 23.3.1995 on the
basis of datas furnished by the Block Elementary Education Officers
(BEEOs) of Dhemaji and Dhakuakhana Sub-Division. The petitioner
submitted that after payment of due salaries to a total of 280 nos of
terminated teachers by cheques, an amount of Rs.84,92,802/- (Rupees
Eighty four lacs ninety two thousand eight hundred two) only remained
in Bank as excess amount. The informant submitted that the FIR named
accused persons who were employees of D.I. Office had entered into
criminal conspiracy to misappropriate a portion of the excess amount
which was lying in the Bank by drawing salaries against some non
existent teachers.
3. The informant in the F.I.R. submitted that in order to
misappropriate the part of the above excess money the FIR named
accused persons prepared a list of 20 persons who were relatives,
neighbours, sons/daughters of Sri Kamala Sarmah and UDA Khagen
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Deori and submitted affidavits before the Hon’ble Gauhati High Court
claiming that they were appointed as teachers in the year 1989 and
were terminated in 1992, and by submitting false documents in CR Case
No.2223/95 mislead the Hon’ble Gauhati High Court in believing that
the petitioners of CR Case No.2223/95 were genuine terminated
teachers like that of other petitioners of CR cases which were disposed
off by the Court. The informant also submitted that the Hon’ble Gauhati
High Court on 5.6.1995 passed an order for payment of salary to 20 nos.
of petitioners with a direction that “ Director Elementary Education,
Assam would examine the matter and if the averments made in the
petition are found correct, the petitioners shall be paid their pay and
allowances for the period served within a period of two months”.
4. The informant submitted that the FIR named accused
persons collected a copy of the said order of the Hon’ble Gauhati High
Court directly from the Court without the knowledge of the Director,
Elementary Education, Assam, Guwahati and added ten more fictitious
names of these teachers by typing the same in the vacant space along
with the Hon’ble High Court order and thereby increasing the number of
terminated teachers to thirty. The informant submitted that on the basis
of the above noted Court order obtained fraudulently and later on
tampered with, S.I. Jogen Bora of D.I. of School, Dhemaji issued 30
(thirty) nos. of cheques against 30 (thirty) so-called terminated
teachers and drew an amount of Rs.14,78,820/- (Rupees fourteen lacs
seventy eight thousand eight hundred twenty) only from Dhemaji
Branch of United Bank of India. He submitted cheques for an amount of
total of Rs.49,294/- each (Rupees forty nine thousand two hundred
ninety four) only were issued in favour of 30 (thirty) persons (total
amounting to Rs. 14,78,820) /- (Rupees fourteen lacs seventy eight
thousand eight hundred twenty) only who never worked as L.P. School
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teacher in Dhemaji district between 1989 to 1992, such as Rajesh
Sarma, Rotneswar Doley, Chandan Sarma, Manoj Sarma, Prasanta
Chetia, Lakhi Gohain, Smti. Kabita Gogoi, Smti. Kumari Pegu, Smti
Niroda Devi, Smti. Santana Changmai, Sri Pradip Chetia, Sri Deba Kanta
Sonowal, Sri Pabitra Sonowal, Sri Lukumoni Chetia, Sari Ramen Dutta,
Smti. Dipika Devi, Smti. Annapurna Devi, Sri Anupam Deori, Smti Manika
Deori, Sri Ripunjay Deori, Sri Deba Sarmah, Sri Nipen Deori, Sri Lila
Kanta Chutia, Sri Kalia Deori, Sri Ashok Sarmah, Sri Mintu Deori, Sri
Deben Dutta, Sri Krishna Sharma, Sri Gudunga Deori and Sri Gobin
Changmai.
5. In the FIR the informant also stated that one Jogeswar
Barpatra Gohain of village Verpara of P.S. Dhemaji had identified most
of the above named fake school teachers as genuine before the Bank
Manager of United Bank of India, Dhemaji Branch and facilitated
fraudulent withdrawal of lakhs of rupees of the Government with active
cooperation of Jogen Bora, Khagen Deori, Kamala Sarma and Mohendra
Gogoi.
6. The informant submitted that during enquiry he has found
sufficient prima facie materials regarding misappropriation of Govt.
money totaling Rs.14,78,820/- (Rupees fourteen lacs seventy eight
thousand eight hundred twenty) only by committing offences like
impersonation, furnishing of false documents, tampering of Court’s
order, misappropriation of Govt. money etc. against accused persons
(1) Sri Kamala Sharma, Office Assistant of the office of S.I.of School,
Jonai, (2) Sri Khagen Deori, U.D.A, D.I.’s office, Dhemaji, (3) Sri Jogen
Bora, the then S.I. of School, Dhemaji, (4) Sri Mehendra Gogoi, S.I. of
School, Dhemaji, (5) Sri Udayaditya Phukan, UDA, D.I. office, Dhemaji,
(6) Smti Dipika Devi, wife of Sri Kamala Sharma and (7) Sri Jogneswar
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Barpatra Gohain. The informant accordingly prayed to register a case
against the above named-accused persons under proper provisions of
law and to take necessary action.
7. On receipt of the said F.I.R., the Officer-in-Charge,
Vigilance Police Station registered Vigilance P.S. Case No.2/1999 U/S.
120B/420/468/471/408/409 IPC read with Sec.13(2) of P.C. Act, 1988.
The police during the course of investigation had visited the place of
occurrence, recorded the statement of several witnesses, arrested the
accused persons, seized several documents, collected FSL report and
after completion of investigation had submitted Charge sheet against
accused (1) Sri Jogen @ Jogendra Bora , the then D.I. of Schools,
Dhemaji, (2) Sri Khagen Deori, U.D.A. of D.I.’s office, Dhemaji, (3) Sri
Kamala Sharma, UDA, Office of the S.I. of Schools, Jonai, (4) Smti
Dipika Devi, wife of Sri Kamala Sharma, L.P. School teacher of Leluoni
L.P. School, Dhemaji, (5) Sri Mehendra Gogoi, S.I. of School, Dhemaji,
(6) Sri Udayaditya Phukan, UDA, D.I. office, Dhemaji and (7) Sri
Jogneswar Barpatra Gohain of village Verpara
U/S.120B/420/468/471/409 IPC read with Sec.13(2) of P.C. Act, 1988.
The investigating officer also submitted prosecution sanction order
against accused Sri Jogen @ Jogendra Bora, Sri Khagen Deori, Sri
Kamala Sharma, Sri Udayaditya Phukan and Smti. Dipika Devi. The
investigating officer has not submitted Charge sheet against accused Sri
Siba Dutta, Sri Tarini Gogoi and Sri Naren Medhi as no evidence were
found against them.
8. After submission of the Charge sheet by the investigating
officer, cognizance of offences were taken against the accused persons
U/S.120B/420/468/471/409 IPC read with Sec.13(2) of PC Act, 1988 and
summons were issued for their appearance before the Court. In course
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of time accused Jogen @ Jogendra Bora, Sri Khagen Deori, Sri Kamala
Sharma, Smti. Dipika Devi, Mohendra Gogoi and Jogeswar Barpatra
Gohain appeared before this Court and they were allowed to go on bail.
9. Accused Udayaditya Phukan expired at the stage of
appearance and as such the case was abated against him vide order
dated 31.8.2002.
10. Copies were supplied to the accused persons as per
provisions of Sec.207 Cr.P.C. The learned counsels for the accused
persons as well as the learned P.P. for the State were heard. My learned
predecessor after going through the case record and after hearing the
learned counsels of both sides had framed charges against accuseds Sri
Jogen @ Jogendra Bora, Sri Khagen Deori, Sri Kamala Sharma, Smti
Dipika Devi and Mohendra Gogoi U/S.409 IPC and U/S.13(2) read with
Section 13(1)(c) of P.C. Act. My learned predecessor also framed
charges against accused Jogen @ Jogendra Bora, Sri Kamala Sharma,
Khagen Deori, Smti Dipika Devi , Mohendra Gogoi and Jogeswar
Barpatra Gohain U/S.120B/420/468/471 IPC. On being read over and
explained all the accused persons pleaded not guilty and claimed to be
tried.
11. During the course of trial accused Khagen Deori and
Mohendra Gogoi had expired and the case against accused Khagen
Deori was abated vide order dated 3.7.2018 and the case against
accused Mohendra Gogoi was abated vide order dated 26.11.2018.
12. During trial the case against accused Smti. Dipika Devi was
split up vide order dated 9.3.2009 due to her mental illness. Record
reveals that thereafter periodical report regarding her mental condition
was obtained from the office of the Joint Director, Health Services,
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Dhemaji . Perusal of record also reflects that my learned predecessor in
his order dated 1.12.2016 observed that “accused Smti. Dipika Devi has
improved after her treatment in the Department of Psychiatric at
Assam Medical College & Hospital at Dibrugarh and she is fit to stand
trial “ and thereafter vide order dated 21.7.2017 the split up case in
respect of accused Smti. Dipika Devi was tagged with the main record.
13. From the above, it appears that at present accused Jogen
@ Jogendra Bora, Sri Kamala Sarmah, Sri Jogeswar Barpatra Gohain
and Smti. Dipika Devi are facing the trial.
14. Prosecution in order to bring home charges against the
accused persons has examined altogether 31 (thirty one) nos. of
witnesses including the informant, the FSL Expert, seizure witnesses
and the I.O’s. Court also examined one court witness.
15. The 313 Cr.P.C. statement of the accused persons were
recorded. Accused Sri Kamala Sharma in his 313 Cr.P.C. statement
denied all the allegations and submitted that at the time of alleged
offence i.e. between 5.6.1995 to 8.6.1995 he was working as an UDA in
the office of S.I. of Schools, Jonai which is far away from the place of
occurrence at Dhemaji. He submitted that he would adduce defence
evidence in support of his defence. Accused Jogen @ Jogendra Bora in
his 313 Cr.P.C. statement submitted that all documents for payment
were prepared by the concerned Headmaster of the school and are
submitted to the concerned S.I. of Schools and after verification of
records of teacher like Appointment Letter, joining report etc. are
submitted to the Block Elementary Education Officer (BEEO) and then
the Block Elementary Education Officer (BEEO) submits the relevant
record from S.I. of Schools with his comments for preparation of
cheques to the Accountant of D.I. of Schools. The accused claimed
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that he is innocence, and he also desired to adduce defence evidence.
Accused Jogeswar Barpatra Gohain and Smti Dipika Devi have claimed
their innocence in their 313 Cr.P.C. statement and they have declined to
adduce defence evidence.
16. The accused persons adduced 5 nos. of D.W’s. in their
defence.
17. I have heard the argument put forwarded by the learned
Special P.P. for the State as well as by the learned defence counsels. I
have carefully perused the entire record and the evidence brought into
record by both the parties, both oral and documentary. I have carefully
analyzed all the materials which are available before this Court.
POINTS FOR DETERMINATION
(1) Whether during the period from 1989 to 1992 accused Jogen
@ Jogendra Bora , D.I. of Schools, Dhemaji, Sri Kamala
Sharma, UDA, Office of the S.I. of Schools, Jonai, Sri
Jogenswar Barpatra Gohain and Smti Dipika Devi, wife of Sri
Kamala Sharma entered into criminal conspiracy and
fraudulently shown 30 (thirty) nos. of fictitious persons as
terminated school teachers for misappropriating a total
amount of Rs.14,78,820/- (Rupees fourteen lacs seventy
eight thousand eight hundred twenty) only and thereby
committed an offence punishable U/S.120B IPC ?
(2) Whether during the said period the above named accused
persons cheated the Government by dishonestly inducing to
deliver a total sum of Rs.14,78,820/- (Rupees fourteen lacs
seventy eight thousand eight hundred twenty) only as salary
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for the 30 nos. of fictitious terminated teachers and thereby
committed an offence punishable U/S.420 IPC ?
(3) Whether during the said period the accused persons forged
order of the Hon’ble Gauhati High Court, prepared false
appointment letters , Education Certificates etc. for the
purpose of cheating and thereby committed an offence
punishable U/S.468 IPC ?
(4) Whether during the said period the above named-accused
persons fraudulently and dishonestly used the forged
documents as genuine and thereby committed an offence
punishable U/S.471 IPC ?
(5) Whether during the said period accused Jogen @ Jogendra
Bora and Kamala Sharma being public servants entrusted
with an amount of Rs.14,78,820/- (Rupees fourteen lacs
seventy eight thousand eight hundred twenty) only against
the salaries of fictitious terminated school teachers and
committed criminal breach of trust by misappropriating the
said amount which is punishable U/S.409 IPC ?
(6) Whether accused Jogen @ Jogendra Bora and Sri Kamala
Sharma during the said period working as public servants in
the office of D.I. of Schools, fraudulently misappropriated
an amount of Rs.14,78,820/- (Rupees fourteen lacs seventy
eight thousand eight hundred twenty) only against the salary
of 30 nos. of fictitious terminated teachers and converted the
same to their own use or to the use of others and thereby
committed criminal misconduct which is punishable U/S.13(2)
read with Section 13(1)(c) of P.C. Act, 1988 ?
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FACTS AS WELL AS MATERIALS BROUGHT INTO THE RECORD
18. Prosecution has examined all together 31 nos. of
witnesses in this case in support of its case.
19. P.W.1 Sri Rajani Phukan deposed that he joined in the
office of D.I. of Schools, Dhemaji in the year 1994 as Statistical Assistant
and his duty was to look after the number of teachers and students. He
deposed that police had seized 6 nos. of documents from him vide
Seizure list (Ext.1). He identified his signature as Ext.1(1). He exhibited
the Counterfoil of Cheque Book pertaining to Account No. CD 155 of UBI
Dhemaji as Ext.2. He deposed that Ext.3 is the Allotment of fund for
payment of arrear to the irregular teachers and Ext.3(1) is the signature
of the then Director of the Elementary Education, Assam. He also
exhibited as Ext.4 , the allotment of fund for payment of arrear pay and
allowances to the irregular teachers. He exhibited 30 nos. of cheque as
Ext.5 to Ext.34.
20. During his re-examination, PW.1 Rajani Phukan deposed
that on 8.4.1997 police seized 1. File for High Court CR Case No.2223/95
which contains certified copy of order dated 5.6.95 passed in
connection with Civil Rule No.2223/95 (Ext.37) and 44 pages of Xerox
copies relating to the said case. 2. Counterfoil cheque book Sl. No.
MDC/B 700776 to 700875 (CD A/C 155). 3. File for irregular teachers
appointment against non sanctioned post under Dhemaji Sub Division in
1989 (Ext.59), this file contains letter No. EAA.18/87/346 dtd.12.5.92
which was given by the DEE to the DI of Schools, Dhemaji, another
letter regarding irregular teachers appointment No.EAA/18/87/229
dtd.17.3.92, one HSLC certificate in the name of Anupam Deori, one
appointment letter issued by D.I. of Schools, Dhemaji appointing one
Smti. Dipali Koch, statement of Sri Kirti Kamal Gogoi in Assamese,
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another illegible appointment letter of Tabin Barpatra Gohain,
appointment letter in the name of Chandra Prabha Borgohain, 4. File for
CR cases of irregular teachers appointed in the year 1989 (both group
and individual cases) Vol.1 & II (Ext.60), Ext.60(1) is the signature of
the then DI of Schools, Dhemaji Sri Dimbeswar Gogoi, this file contains
another list of vacancies in Assamese ,Ext.60(2), Ext.62 is the part
documents of Ext.60. 5. Register relating to High Court cases, No. of
registers-2 (Vol. 1 & II), 6. Sanction letter received from DEE, Kahilipara
vide Sanction letter No.EAA-18/87/598 dtd.29.3.94 (Ext.3), for
Rs.2,36,92,518/- and another Sanction letter No.ELC 8/94/95/26-A
dtd.23.3.95 for Rs.1,36,87,878/- (Ext.4).
21. In his cross-examination for accused Khagen Deori, PW.1
deposed that he is not the Drawing and Disbursing Officer and Ext.2 to
Ext.34 were seized from D.I. of Schools on being produced by Khagen
Deori in his presence. He also stated that he was not allowed to peruse
the documents of the files at that time. He stated that he had seen
Ext.37 and he did not go through the other documents. He stated that
Ext.59 contains Xerox copies only and he had seen only the first page
and register not seen by him. He stated that Ext.3 is also a Xerox copy
but Ext.60 is original. He stated that in Ext.61 and Ext.61(1) the case
number 2223/95 is not mentioned.
22. In cross-examination for accused Jogen Bora, PW.1 stated
that he maintained records of number of schools, number of school
teachers, number of children and number of teachers undergoing
training.
23. Prosecution examined the original complainant Kirti Kamal
Gogoi as PW.2. He deposed that in the year 1989 he was working as
teacher in Dhemaji Town ME School and at that time he was the
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Secretary of All Assam Primary Middle School Union Santha of Dhemaji
district and also the president of Dhemaji District M.E. School Teachers.
He also stated that during the year 1989 when Dimba Gogoi was the
D.I. of Schools, Dhemaji, he appointed some L.P. School teachers
against non existent posts. He deposed that after detection of the
irregularities he made a complaint before the Chief Minister of Assam
for which ultimately a case was registered.
24. In his cross-examination for accused Khagen Deori, PW.2
stated that the original complaint lodged by him on the basis of which
investigation has started is not available in the record and the same is
also not shown to him. The other accused persons have not cross-
examined him.
25 Prosecution examined Sri Prakash Bordolai as PW.3 who
deposed that in the year 1987 he was working in the Dhemaji Branch of
United Bank of India as cashier cum general clerk and during his tenure
police seized 30 nos. of cheques from Babul Hazarika, the Rural
Development Officer vide seizure list (Ext.35). He identified his signature
as Ext.35(1). He also identified the seized cheques as Ext.5 to Ext.34.
This witness was not cross-examined by any of the accused persons.
26. Prosecution examined one Lalit Rajkhowa as PW.4. He
deposed that in the year 1995 he was working as UDA in the office of
D.I. of Schools, Dhemaji and on 8.4.1997 police seized vide Ext.1
Seizure list some documents from their office. He deposed that Ext.5 to
Ext.34 , the cheques were issued from their office which were written
by Khagen Deori, Head Assistant and signed by the then D.I. of
Schools, Jogen Bora as DDO. He further deposed that he knows their
signatures as he was working in the same office.
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27. During his re-examination, PW.4 deposed that on 8.4.1997
police seized 1. File for High Court CR Case No.2223/95 which contains
certified copy of order dated 5.6.95 passed in connection with Civil Rule
NKo.2223/95(Ext.37) and 44 pages of Xerox copies relating to the said
case. 2. Counterfoil cheque bok Sl. No. MDC/B 700776 to 700875 (CD
A/C 155). 3. File for irregular teachers appointment against non
sanctioned post under Dhemaji Sub Division in 19879 (Ext.59), this file
contains letter No. EAA.18/87/346 dtd.12.5.92 which was given by the
DEE to the DI of Schools, Dhemaji, another letter regarding irregular
teachers appointment No.EAA/18/87/229 dtd.17.3.92, one HSLC
certificate in the name of Anupam Deori, one appointment letter issued
by D.I. of Schools, Dhemaji appointing one Smtyi. Dipali Koch,
statement of Sri Kirti Kamal Gogoi in Assamese, another illegible
appointment letter of Tabin Barpatra Gohain, appointment letter in the
name of Chandra Prabha Borgohain, 4. File for CR cases of irregular
teachers appointed in the year 1989 (both group and individual cases)
Vol.1 & II (Ext.60), Ext.60(1) is the signature of the then DI of Schools,
Dhemaji Sri Dimbeswar Gogoi, this file contains another list of vacancies
in Assamese ,Ext.60(2), Ext.62 is the part documents of Ext.60. 5.
Register relating to High Court cases, No. of registers-2 (Vol. 1 & II), 6.
Sanction letter received from DEE, Kahilipara vide Sanction letter
No.EAA-18/87/598 dtd.29.3.94 (Ext.3), for Rs.2,36,92,518/- and letter
No.ELC 8/94/95/26-A dtd.23.3.95 for Rs.1,36,87,878/- (Ext.4).
28. In his cross-examination for accused Khagen Deori, PW.4
stated that at the relevant time accused Khagen Deori was the Head
Assistant of their office and the cheque books were in his custody. He
also stated that the cheque books were shown to him by the
investigating officer and then he learnt that the cheque books were in
the custody of accused Khagen Deori. He stated that he do not know
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who prepared the bills against the cheques. He further stated that at the
time of seizure he was the UDA I/C of Non Formal Education in the
same office. He stated that Non Formal pay bill was prepared separately
but DDO was the same. He further stated that at the relevant time the
arrear pay bill was prepared by the then Head Assistant Khagen Deori.
He stated that bills were prepared as directed by the DDO (D.I. of
Schools) and thereafter the Head Assistant prepared the cheques. He
further stated that after preparing of the cheques the same were placed
before the DDO for his signature and the DDO after consulting with the
bill put his signature in the cheques. He stated that he do not know
when and how Ext.37 was delivered in their office which contains three
pages. He further stated that Ext.37 was seized from D.I’s chamber but
he do not know who and when the documents was delivered in D.I.
chamber. He stated that he do not know about the facts of this case. He
further stated that the arrear bills are prepared only after approval of
DEE on the basis of concurrence of Finance Department, Govt. of
Assam.
29. During cross-examination for accused Jogen @ Jogendra
Bora he stated that salary bills of school teachers are prepared by the
Headmaster concerned and then the bills are sent to the D.I. of
Schools. He stated that he do not know who made the original
requirement. He further stated in cross-examination that the concerned
teachers made prayer in the office of D.I. and payment was made as
per order of the High Court. He stated that all the documents including
Ext.37 was seized by the investigating officer from the office of the D.I.
of Schools, Dhemaji on being produced by Khagen Deori.
30. Prosecution examined one Ashok Sharma as PW.5 who
deposed that Ext.29 is a cheque amounting to Rs.49,294/- issued in his
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name by the D.I. of Schools, Dhemaji on United Bank of India. He
deposed that he is a cultivator and he never received the cheque nor
encash the same.
31. In his cross-examination for accused Jogen @ Jogendra
Bora, PW.5 deposed that he do not know whether there is any other
Ashok Sharma in Dhemaji . The other accused persons did not cross-
examine him.
32. Prosecution examined Rajesh kr. Sharma as PW.6. He
deposed that in the year 1995 he came to know that a cheque (Ext.5)
for an amount of Rs.49,294/- was issued in his name. he deposed that
the cheque was never handed over to him nor he encashed the same.
33. In his cross-examination for accused Jogen Bora, he stated
that Ext.5 , the cheque might have been issued to some other Rajesh
Sharma. He denied that Ext.5 was not issued in his name. He also
stated that no money was due to him from D.I. of Schools. Other
accused persons did not cross-examine this witness.
34. Prosecution examined Babul Ch. Hazarika as PW.7 who
deposed that while he was working as Rural Development Officer
attached to UBI, Dhemaji on 18.8.1997 he was officiating Manager of
the Branch and on that day police seized 30 number of documents vide
Ext.35 (Seizure list). He identified the seized documents as cheques
being Ext.5 to Ext.34. This witness was not cross-examined by the
accused persons.
35. Prosecution examined Loknath Gogoi as PW.8. He deposed
that on 20.8.1997 he was working as Sub Inspector of Schools attached
to the D.I. of Schools, Dhemaji and on that day police seized two
17
documents namely certified copy of order dtd.5.6.95 passed by the
Hon’ble Gauhati High Court in Civil Rule No.2223/95 and a subsidiary
cashbook vide Seizure list (Ext.36) from their office.
36. In his cross-examination for accused Khagen Deori, PW.8
stated that he made an enquiry in respect of the appointment of teacher
and thereafter he submitted one report .
37. In his cross-examination for accused Kamala Sharma,
PW.8 stated that he do not have any personal knowledge regarding the
occurrence of this case and at the relevant time accused Kamala Sharma
was working in the office of D.I. of Schools, Jonai.
38. Prosecution examined one Lukumoni Chutia as PW.9 who
deposed that in the year 1995 he was working as casual worker in the
office of D.I. of Schools, Dhemaji and one day accused Uday Phukan
took him to UBI, Dhemaji where he was asked to put his signature on
some papers assuring that his service will be regularized. He also stated
that Mr. Phukan took his signature on a cheque and withdrew the
money. He stated that he did not get the job nor the money. He
identified his signature on the reverse of the cheque dated 8.6.1995 as
Ext.18(1) and Ext.18(2). Cross-examined of this witness was declined.
39. Prosecution examined another witness Khargeswar
Changmai as PW.10 who deposed that on 23.10.97 he was serving as
Headmaster of No.2 Ghilaguri LP School. He deposed that by an
application (Ext.39) he informed to S.I. of Schools that no lady teacher
Annapurna by name worked in his school.
40. In his cross-examination for accused Sri Kamala Sharma,
he stated that in Ext.39 there is no mention as to in which context the
18
said letter was issued. However he stated that he issued the letter as
per verbal direction of S.I. of Schools, Loknath Gogoi.
41. Prosecution examined one Chandan Sharma as PW.11 who
deposed that on 20.8.1987 he was serving as a teacher of Sangkong
Narayanpur L.P. School. He stated that he never served as teacher in
Jamunaguri L.P. School and he also never submitted any bill and never
received any money from that school.
42. In his cross-examination for accused Sri Kamala Sharma,
PW.11 stated that he do not know if there is any other person by his
name Chandan Sharma in the locality. He also stated that he has no
knowledge regarding occurrence of this case and also do not know
regarding preparation of teacher’s bills, submission of the same in the
Bank and thereby withdrawing of money from the Bank by cheque.
43. Prosecution examined Sri Anupam Deori, son of Khagen
Deori as PW.12. He deposed that his father worked in D.I. office
Dhemaji and in the year 1989 to 1992 he was a student of High School
and during that period he never served as teacher in any school and
also had not received any money as salary during that period.
44. In his cross-examination, he stated that his statement was
not recorded by the investigating officer and the police took his
signature in a blank white paper. He further stated that his father’s
name is Khagen Deori not Dhoni Deori. The other accused persons have
not cross-examined this witness.
45. Prosecution examined one Sri Surjya Chutia as PW.13 who
deposed that in the year 1992 he worked in Nagakhulia LP School as
Headmaster and he prepared the salary bill of teachers serving in his
19
school namely, Smti. Bhanima Kakati, Lili Dutta, Khargeswar Dutta and
for himself.
46. In his cross-examination for accused Kamala Sharma,
PW.13 stated that the bills which he had referred in his examination-in-
chief has not been shown to him in the Court. He also stated that the
Dispatch Register of the Bill is also not shown to him. The other accused
persons did not cross-examine him.
47. Prosecution examined one Smti. Debajyoti Baruah as
PW.14 who deposed that during the period 1989 to 1992 she was
serving as Assistant Teacher in Machkhowa Pathalia L.P. School and at
that time Robin Baruah was the Headmaster and there were three
teachers in that school.
48. In cross-examination for accused Sri Kamala Sharma,
PW.14 deposed that she cannot say the name of the person for whom
the bills were prepared as she herself did not prepare the bills. She also
stated that during the period 1989 to 1992 Debeswar Borgohain was the
Headmaster of their school. Other accused persons did not cross-
examine PW.14.
49. Prosecution examined Bolin Lahon as PW.15 who deposed
that during 1989 to 1992 he was serving as Headmaster at Napam L.P.
School and at that time there were six teachers in their school and he
used to prepare the bills for those teachers including himself namely
Smti Padma Handique, Jagat Gohain, Smti. Rekha Gohain and Puspalata
Gohain. PW.15 further stated that another teacher Mahibur Baruah was
transferred.
20
50. In his cross-examination for accused Kamala Sharma,
PW.15 stated that the bills which he referred has not shown to him in
the Court . He also stated that the despatch register of the bill is also
not shown to him. Other accused persons did not cross-examine him.
51. Prosecution examined Sri Sarat Ch. Hazarika as PW.16 He
deposed that he joined as teacher in the year 1967 and he was
promoted to SI of Schools in the year 1971 and he was again promoted
to Elementary Education Officer at Bihali in the year 1992. Thereafter
he was promoted to DI of Schools at Dhemaji and retired in that office
in the year 2000. PW.16 stated that on 20.8.1997 police seized
subsidiary cashbook of DI of Schools commencing from 1994 from page
1 to 42 vide Ext.36, the seizure list through MR No.10/99 from him and
Ext.36(2) is his signature. Ext.38 is the said subsidiary cashbook.PW.16
further stated that police showed him a list of teachers and asked him
whether those teachers were working during the relevant time and he
directed three S.I.s of Schools to verify the matter and the S.I.s of
Schools reported him that such teachers were not working during the
relevant time.
52. In his cross-examination for accused Kamala Sharma,
PW.16 stated that in the Court he has not seen the list of name of
teachers which was furnished to him by the police for verification neither
he remembered the name of the said teachers whose names were
mentioned in the said list of teachers given by the police. PW.16 further
stated that the report submitted by the S.I. is not available in the Court
and neither it has been shown to him and also do not know the actual
contents of the said report. PW.16 further stated that the written order
issued by him to the S.I. of Schools to verify the list of the teachers is
also not shown to him in the Court. PW.16 further stated that he did not
21
give any oral statement to the police during the investigation of this case
but as per direction of the police he submitted a written statement to
the police. PW.16 further stated that Ext.38 was maintained by the
Head Assistant K.N. Deori and he knows nothing about Ext.38, the
cashbook. He only put his signature as a seizure witness. PW.16 further
stated that he do not know about the cash book(Ext.38) as because he
was shown the cashbook (Ext.38) only on the day of seizure. The other
accused persons have not cross-examined this witness.
53. Prosecution examined Sri Tarini Mohon Gogoi as PW.17.
He deposed that he is working as UDA in the office of DI of Schools,
Dhemaji . The Head Assistant of the office K.N. Deori asked him to verify
the case regarding case No.2223/95 but this case has not been found in
any office record of their office.
54. In his cross-examination for all the accused persons,
PW.17 stated that he do not know anything about the Civil Rule
No.2223/95 which was filed before the Hon’ble High Court . He also do
not know the name of the petitioner of the aforesaid Civil Rule. PW.17
further stated that he was working in different branches of the office
and he was not given any such important work nor allotted to him.
PW.17 further stated that though he was examined during investigation
of the case, his statement was not recorded by the I.O. However the
investigating officer asked him to write what he knew about the case
and accordingly he wrote, signed and gave the same to the investigating
officer. PW.17 further stated that at the time of occurrence accused
Kamala Sharma was working in D.I. of Schools, Jonai.
55. Prosecution examined Smti. Aimoni Lahon as PW.18 She
deposed that she joined the D.I office, Dhemaji in the year 1984. In the
year 1997 she was working in the D.I. office as L.D. Assistant. She
22
further stated that as L.D. Assistant her duty is to prepare the salary bill,
maintenance of leave account. She also prepared other clerical works.
She stated that on 8.4.1994 police seized certain documents vide Ext.1,
the seizure list in her presence and Ext.1(3) as her signature.
56. In her cross-examination for accused Jogen Bora, PW.18
stated that she has no personal knowledge about the documents seized
by police. She further stated that she do not know anything about the
facts of the case except putting her signature in the seizure list(Ext.1).
57. Prosecution examined Sri Siba Dutta as PW.19. He
deposed that he joined in the office of D.I. of Schools, Dhemaji in the
year 1992 and on 9.4.1997 he was working as U.D. Assistant in the
office of District Elementary Education Officer, Dhemaji. The witness
identified the signature of D.I. of Schools, Dhemaji Jogen Bora on Ext.5
to Ext.34 being Ext.5(1) to Ext.34(1).He also stated that they used to
maintain a court case register in respect of any cases filed in the Hon’ble
Gauhati High Court and in other courts where they used to make entries
regarding registration of case. He also stated that in the said court
case register which is maintained in their office there is no entry of C.R.
Case No.2223/95.
58. In his cross-examination for accused Sri Kamala Sharma,
he deposed that he has not shown the Court case register in the Court
and police also has not seized the same. PW.19 further stated that he
worked in the office of D.I. of Schools, Dhemaji but at the relevant time
when occurrence took place he was not working in the said office and
did not maintain court case register.
59. In his cross-examination for accused Jogen Bora, PW.19
stated that since he did not work in the Accounts department he can not
say who has written the cheques. He further stated that Ext.5(1) to
23
Ext.34(1) appears to be the signatures of Jogen Bora but he is not sure.
60. Prosecution examined one Sri Hiranya Ch. Das as PW.20
who deposed that he retired as Headmaster of Khajua L.P. School,
Dhemaji in February,1998. He stated that he was the Headmaster and
Ganesh Borgohain was the Assistant Teacher of the said school and
there was no other teacher in Khajua L.P. School. He stated that he do
not know if prior to his appointment in the said school any teacher
namely Durna Kanta Sonowal worked in that school.
61. In his cross-examination, PW.20 stated that police had not
seized any school register. He also stated that police had not seized the
Attendance Register of his school or any other relevant documents from
him to show that there were two nos. of teachers working at the
relevant time.
62. Prosecution examined one Sri Keshab Ch. Phukan of
United Bank of India as PW.21. He deposed that in the year 1993 he
was working as Manager of UBI, Dhemaji Branch. He stated that on
5.2.1998 police seized one photocopy of circular regarding SB Account
and Fixed Deposit vide Ext. 40, the seizure list. PW.21 also deposed that
Ext.5 to Ext.34 are the cheques issued by the then D.I. of Schools,
Dhemaji in the name of various teachers mentioned in the cheques. He
also stated that the cheques were duly encashed by the respective
persons.
63. In his cross-examination, PW.21 stated that the persons
who had encashed the cheques had their Accounts in the Bank and that
all the cheques were Account Payee cheques. He further stated that the
persons who had withdrawn the money put their signatures on the
back of the cheque. He further stated that the persons who opened
24
Account in their Bank were themselves present at the time of opening
the Account.
64. Prosecution examined one Sri Trailukya Nath Konwar,
Block Elementary Education Officer, Bordoloni, Dhemaji as PW.22. He
deposed that he joined the Education Department in the year 1972 and
that normally salary of school teachers are paid to them in cash. He
stated that in case of M.E. School teacher, the Headmaster used to draw
the salary of his school and he disburse the same among the school
teachers. He stated that in case of LP school teacher, the Center
secretary used to draw the salary and disburse the same. He further
stated that in case of drawal of arrear the mode of drawal and payment
are the same. This witness was not cross-examined by the defence.
65. The prosecution examined one Hemanta Kr. Sharma as
PW.23. He deposed that on 13.7.2000 he was working as Director of
Elementary Education, Assam, Kahilipara, Guwahati and on that day he
had accorded prosecution sanction against three nos. of accused
persons. He exhibited the Forwarding Letter as Ext.41 and Ext.42 being
the sanction order accorded against accused Khagen Deori , Ext.43
being the Sanction Order accorded against accused Kamala Sharma and
Ext.44 being the Sanction order accorded against accused Udayaditya
Phukan. He stated that before according prosecution sanction he had
gone through all the documents placed before him and being satisfied
with them he accorded prosecution sanction against the said three nos.
of accused persons.
66. In his cross-examination for accused Khagen Deori, PW.23
stated that he has accorded prosecution sanction as per the format
given by the prosecuting agency. He stated that by the word “format”
he did not mean that there was a format for according prosecution
25
sanction. He denied that he has accorded prosecution sanction order as
per instruction of police. He further stated that he do not remember
whether there is any copy of order regarding disbursement of salary of
teachers issued by the Hon’ble High Court placed before him. He
denied the suggestion that he accorded prosecution sanction as per the
format given by the police.
67. In cross-examination for accused Kamala Sharma, he
deposed that in the sanction order he has not mentioned the fact
constituting the offence against the accused person. He stated that he
also has not mentioned the amount misappropriated by the accused
persons. He also stated that in the sanction order he has not mentioned
the name of terminated LP school teachers of Dhemaji district in the
year 1995 and has not mentioned the case number which was tampered
with. He also stated that in the sanction order he has not mentioned
that he is the competent authority to remove accused Kamala Sharma.
He denied the suggestion that the sanction order was issued without
following due procedure.
68. Prosecution examined one Dinesh Ch. Barman, IAS as
PW.24. He deposed that on 17.5.2000 he was working as Commissioner
& Secretary in the Govt. of Assam, Education Department and on that
day he accorded sanction to prosecute accused Jogendra @ Jogen Bora
who was the District Elementary Education Officer, Dhemaji. He
identified the sanction order as Ext.45. He also stated that before
according prosecution sanction he has gone through the documents and
other materials carefully and applied his mind.
69. In his cross-examination for accused Jogen Bora, he stated
that in the sanction order there is no mention that he has gone through
the documents and applied his mind. He denied the suggestion that the
26
vigilance authority prepared the sanction order and he simply put his
signature therein.
70. Prosecution examined one Sri Mohendra Bharali as PW.25.
He deposed that since 1981 he is working as peon in the office of D.I. of
Schools, Dhemaji. He stated that he was handed over a file by the then
Head Assistant of D.I. of Schools, Dhemaji, Sri Khagendra Deori to keep
in the file of cases and the file referred to case no.2223/95 of High
Court. He further stated that on being asked he handed over the file to
Khagendra Deori. He further stated that after a few days he handed
over the file to U.D. Assistant Tarini Mohon Gogoi.
71. In his cross-examination for accused Khagen Deori, he
stated that he do not know what was inside the file. He further stated
that the then Head Assistant Tarini Mohon Gogoi used to deal with the
file relating to High Court cases.
72. Prosecution examined one Sri Budheswar Bora as PW.26
who deposed that on 17.7.2002 he was working as Dy. Inspector of
Schools, Dhemaji. He stated that on that day he accorded prosecution
sanction against accused Smti Dipika Devi, the L.P. School teacher ,
Dhemaji. The cross-examination of this witness was deferred as accused
Smti. Dipika Devi has taken the plea of insanity. Later on, accused
Dipika Devi after medical treatment recovered and was declared fit for
trial. The learned counsel for accused Smti Dipika Devi after accused
Dipika Devi was declared fit filed a petition for recalling PW.26 for the
purpose of cross-examination. PW.26 was not cross-examined as the
petition filed by the learned defence counsel to recall PW.26 was not
allowed.
27
73. Prosecution examined one Prasanta Chetia as PW.27. He
deposed that in the year 1992 he passed higher secondary examination
but he never worked in any LP school namely Mora Kathani LP School
in Dhemaji district. He further deposed that Ext.9 is the cheque showing
payment of Rs.49,294/- in his name but he has never received the
cheque nor he drew the money. He further submitted that accused
Kamala Sharma married his elder sister who is suffering from mental
illness.
74. In cross-examination for accused Jogen Bora, he stated
that he do not know who has entered his name in Ext.9 and also do not
know who has withdrawn the money by putting his name on the
backside of the cheque.
75. In cross-examination for accused Kamala Sharma, he
stated that he has never given any statement before the investigating
officer and also has not heard the name of any school as Mora Kathani
LP School. He also stated that police obtained his signature on a blank
paper. He further stated that there were other persons by name
Prasanta Chetia in his village but he do not know whether they have
received any money or cheque. He also stated that his elder sister
Dipika Devi is not working in any school as she is suffering from some
serious disorder.
76. Prosecution examined Sri Hareswar Das, Dy. Director, I/C
Question Document Division, Forensic Science Laboratory, Assam,
Guwahati as PW.28. He deposed that on 12.5.2000 he was working as
Dy. Director in the Questioned Document Division of Assam Forensic
Science Laboratory, Assam, Guwahati. On that day he received certain
documents in connection with Vigilance Case No.2/99
U/S.120B/420/468/471/408/409 IPC read with Sec.13(2) of P.C. Act,
28
1988 from the Superintendent of Police, Special Vigilance Cell, Assam,
Guwahati vide his memo no.SVC/PS Case No.2/99/460 dtd.10.5.2000.
PW.28 stated that he examined the documents carefully and thoroughly
and marked the questioned items referred in this case in Q series and
specimen writings and signatures supplied for the purpose of
comparison in S series and contemporaneous writings in A series. He
had carefully and thoroughly examined the questioned items in this case
and compared them with the relevant standard materials from the
original documents in all aspects of handwritings, identification and
detection of forgery with the necessary scientific aids in the Forensic
Science Laboratory, Assam, Guwahati and finally he formed his opinion
as follows:
77. The person who wrote the blue enclosed signatures
stamped and marked S1, S1(1), S2, S2(1) and A6 to A10 also wrote the
red enclosed signatures similarly stamped and marked Q31 to Q39,
Q39/1, Q40 to Q53, Q53/1 and Q54 to Q60.
78. The person who wrote the blue enclosed writings and
signatures stamped and marked S3, S3(1), S4, S4(1), A1, A2(1), A3,
A3(1), A4, A4(1), A5 and A5(1) also wrote the red enclosed writings and
signatures similarly stamped and marked Q1 to Q30, and Q31/1,
Q30(1). PW.28 stated that his opinion were communicated to the
forwarding authority vide Memo No.FSL/24/2000/691 dtd.9.6.2000 by
the then Director, FSL, Assam, Kahilipara, Guwahati Dr. K. Goswami.
Vide Ext.47 , the forwarding letter and Ext.47(1) is the signature of Dr.
K. Goswami, the then Director, FSL, Assam, Kahilipara, Guwahati .
Ext.48 is his opinion and Ext.48(1) is his signature.
79. PW.28 further stated that Ext.5 to Ext.34 are the
questioned cheques which contains their markings as Q1 to Q60 and
29
Q1(1) to Q30(1), Q39(1) to Q53(1). Ext.49 and Ext.50 contains the
specimen signatures of accused Jogen Bora wherein, in his markings S1,
S1(1), S2 and S2(1) contain. Ext.51 and Ext.52 are the documents
containing specimen writings and signatures of Sri Khagen Deori
wherein in his markings S3, S3(1), S4, S4(1), exists. PW.28 stated that
Ext.38(1) to Ext.38(5) are the pages of cashbooks containing admittedly
genuine writings of Sri Khagen Deori. Ext.38(6) to Ext.38(10) are
admittedly the genuine signatures of accused Jogen Bora in the above
cash book. Ext.53 is the document containing reasons of his opinion.
Ext.53(1) is his signature. He exhibited Ext.54 as the Forwarding Letter
of Superintendent of Police, CM’s Special Vigilance Cell, Assam.
80. In cross-examination for accused Jogen Bora, PW.28
stated that in Ext.49 and Ext.50 there is an over writing in the figure for
day in the date which was authenticated by his initial. There is no
distinct demarcation for initials and signatures by definition. As the
questioned items contains the letter form for J & B representing Jogen
Bora, they can term them as initial and also as short signature.
81. In cross-examination for accused Khagen Deori, PW.28
stated that there is a variation in certain alphabet of a person’s writings.
This variation which is a natural for everybody’s writings are called
natural variation and it is an integral part of genuine writing. This
variation cannot be termed as different. He stated that in his report,
most of the significant feature which identities the writer and which are
convincing and significant they have been mentioned only. All the
features appearing in all the alphabets are not required to be
mentioned.
82. PW.29 Deben Konwar deposed that he worked as Assistant
Teacher in Goal Chapari MV School and he was the teacher of Rajen
30
Sarmah, Prasanta Chetia and Deepika Devi and further stated that the
above three persons never worked in his school and identified the
certificate issued by him in this regard as Ext.55.
83. In cross-examination, he stated that he has not brought
the register on the basis of which he issued the certificates (Ext.55).
84. Prosecution examined the one Nabab Imdad Hussain as
PW.30 who simply deposed that on 14.8.2000 while he was working as
Superintendent of Police, in CM’s Special Vigilance Cell he forwarded the
Charge sheet No.1/2000 dtd. 14.8.2000 submitted by I.O. Jagadish
Sharmah along with forwarding note. He exhibited the Charge sheet as
Ext.56 and Ext.56(1) as his signature and Ext.56(2) as the signature of
I.O. Jagadish Sarma. He stated that he has not taken part in the
investigation.
85. In cross-examination, he confirmed that he only forwarded
the Charge sheet and has not done any investigation.
86. Prosecution examined I.O. Jagadish Sharma as PW.31. In
his evidence PW.31 (I.O) deposed that on the basis of complaint
submitted by one Kirti Kamal Gogoi, Secretary, Assam L.P. School
Teacher Co-ordination Committee, Dhemaji district, the then
Superintendent of Police, Vigilance endorsed him to take up a regular
enquiry. He stated that during enquiry he collected documents and other
materials from the concerned D.I. of Schools, Dhemaji and submitted
his regular Inquiry Report before the Superintendent of Police, CM’s
Special Vigilance Cell. He also deposed that after conducting regular
enquiry he filed an ejahar before the O/C cum Superintendent of Police,
C.M’s Vigilance Cell as a result SVC Case No.2/99
U/S.120B/420/468/471/408/409 IPC read with Sec.13(2) of PC Act, 1988
31
was registered against the accused persons. He further submitted that
he was endorsed to investigate the case. He deposed that Ext.57 in five
sheets is the FIR submitted by him. He exhibited the printed format of
FIR as Ext.58. He stated that vide Ext.1, the seizure list he seized six
nos. of documents from the Head Assistant of D. I. of Schools, Dhemaji,
Khagen Deori . He exhibited the file relating to the appointment of
irregular teachers against non sanctioned posts as Ext.59. He exhibited
as Ext.60 in six sheets the list of irregular teachers appointed against
non sanctioned posts along with entire office record. He further
deposed that by Ext.35 he seized as many as 30 nos. of documents and
vide Ext.40 he seized as many as 2 nos. of documents. He identified the
subsidiary cashbook of schools of Dhemaji seized by him as Ext.36. He
exhibited the subsidiary cashbook as Ext.38. he stated that vide Ext.35,
30 nos. of cheques were seized from the Bank. He stated that Ext.61 is
the register relating to court cases Vol. No.II seized by him. He identified
as Ext.37 the certified copy of order dtd. 5.6.95 passed by the Hon’ble
Gauhati High Court in Civil Rule No.2223/95. He identified the
undertaking given by the teachers in D.I. office as Ext.62. He deposed
that he obtained the prosecution sanction order against the accused
persons and also sent the cheques to the hand writing expert for opinion
regarding writings and signatures in the cheques. He deposed that after
obtaining sanction he submitted charge sheet against accused Jogen
Bora, D.I. of Schools, Dhemaji, Khagen Deori, UDA, office of the D.I. of
Schools, Dhemaji, Kamala Sharma, UDA office of the S.I. of Schools,
Jonai, Udayaditya Phukan, and Smti Deepika Devi, wife of Kamala
Sharma. He identified the charge sheet as Ext.56.
87. In his cross-examination for accused Kamala Sharma and
others, he deposed that PW.2 kirti Kamal Gogoi is the complainant of
this case on the basis of which this case was registered but he has not
32
seized the original complaint of PW.2 Kirti Kamal Gogoi during his
enquiry and investigation. He also stated that the alleged occurrence
took place in the office of D.I. of Schools, Dhemaji during the period
from 5.6.95 to 8.6.95. He further stated that during investigation he
could not detect as to who has submitted the certified coppy of order
dtd. 5.6.1995 in connection with Civil Rule No.2223/95 in the office of
D.I. of Schools, Dhemaji. He stated that during his investigation he has
not visited any office of the Hon’ble High Court comprising Civil Rule
Section, Record Section, Copy Section etc. He also stated that he did not
collect any certified copy of the original petition of Civil Rule No.2223/95
from the Hon’ble Gauhati High Court. He further stated that he has not
obtained the specimen signatures of any teacher who alleged to have
received the cheques and money.
88. In cross-examination he also stated that during his
investigation he has not seized any application form for obtaining bank
account including the specimen card and other relevant documents. He
also started that he did not find any introducer of the Bank Account. He
further stated that he do not know if the office had prepared any bill
against cheques (Ext.5 to Ext.34). He further stated that he had not
seized the dispatch register of the bill of the teachers who were working
in that school at that time. He also stated that he did not seize any
attendance register of the school involved in this case. He stated that
Ext.62 has been proved and exhibited for the first time in the Court on
that day. He stated that Ext.62 are undertaking given by S.I. of Schools
and the candidates. He further stated that he has not made any
person/petitioner who approached the Hon’ble High Court as accused
persons in this case and also has not made any of them as witness in
this case.
33
89. In cross-examination, he admitted that he conducted
regular enquiry before lodging of the FIR and submitted his report to the
Superintendent of Police , C.M’s Special Vigilance Cell and the concerned
Superintendent of Police asked him to file an FIR after going through his
report . He identified the FIR as Ext.57. He also stated that after
completion of investigation he submitted Charge sheet. He stated that
he has done everything from beginning to end in this case. PW.31
further stated that the petitioners of Civil Rule No.2223/95 were not
made accused in this case as they did not personally committed the
offence but somebody else committed the offence on their behalf.
90. In cross-examination for accused Khagen Deori, the
I.O.(PW.31) stated that he did not make any effort to obtain the original
record of Civil Rule No.2223/95. He further stated that the enquiry was
made on the basis of GD Entry at the behest of kirti Kamal Gogoi, but
the number of G.D Entry is not mentioned in the ejahar. He also stated
that he has recorded the statement of thirty persons whose names
appears in Ext.37.
91. After examination of the prosecution witnesses, Court
examined one Mridul Kalita, the then Joint Register (Judl.II) of Hon’ble
Gauhati High Court as Court witness No.1. In his evidence on oath
before this Court, CW.1 deposed that as asked by this Court the original
record of Civil Rule No.2223/95 between Dipika Devi and others –vs-
State of Assam is produced before this Court. He identified the original
record of Civil Rule No.2223/95 as Ext.63 and Ext. 64 as the Forwarding
Letter. He further stated that as per Ext.63 there were twenty
petitioners namely (1) Smti. Deepika Devi, (2) Sri Krishna Sharma, (3)
Gobin Changmai, (4) Sri Rajesh Sarma, (5) Sri Deba Sarma, (6) Sri
Ashok Sarma, (7) Smti Monika Devi, (8) Smri. Annapurna Devi, (9) Sri
34
Ramjoy Deori, (10) Sri Nripen kr. Deori, (11) Sri Anupam Deori, (12) Sri
Lukumoni Chutia, (13) Smti Santana Changmai, (14) Sri Kalia Deori, (15)
Sri Mintu Deori, (16) Sri Chandan Sarma, (17) Sri Prasanta Chetia, (18)
Deba Kanta Sonowal, (19) Sri Godunga Deori and (20) Sri Pabitra
Sonowal. He further stated that as per record, (Ext.37), the certified
copy of order dtd.5.6.1995 was issued from the Hon’ble Gauhati High
Court. He stated that in the certified copy there are names of thirty
petitioners.
92. During his cross-examination, CW.1 stated that he cannot
say who had in fact applied for the certified copy of order dtd. 5.6.1995
(Ext.37) and he also can not say who had in fact received the same from
the Hon’ble High Court. He stated that he has no personal knowledge
about the forgery of Ext.37.
93. The defence in order to prove their case has examined
altogether 5 D.Ws.
94. The defence examined one Kamal Hussain as DW.1 who
worked as Dy. Inspector of Schools, Dhemaji. He deposed that he is
working as Dy. Inspector of Schools in Dhemaji district and he knew
accused Kamala Sharma for a long time. He stated that accused Kamala
Sharma was working as Lower Division Assistant in the office of the Dy.
Inspector of Schools, Dhemaji upto 18th April, 1990 and thereafter he
was transferred to the office of the Dy. Inspector of Schools, Jonai vide
memo No. DEL/Esstt./DIS/2/89-90/3121-27 dtd.27.3.1990. He exhibited
the said letter as Ext. A and identified the signature of Dilowar Hussain,
the then District Elementary Education Officer, Lakhimpur as Ext. A(1).
He further deposed that after receiving the transfer order accused
Kamala Sharma joined in the office of D.I. of Schools, Jonai as L.D.
Assistant and till date he is working there. He further stated that he has
35
brought Ext.A as directed for the same and Ext.A was under his custody
in his official capacity.
95. In his cross-examination, DW.1 stated that on 27.3.1990
he was at Golaghat district as Sub Inspector of Schools. He further
stated that in his service life he never worked under Dilowar Hussain,
the then District Elementary Education Officer, Lakhimpur. He stated
that Ext.A does not contain any official seal. He denied that Ext.A is not
an official document. He stated that during the period 1989 to 1992 he
never visited Dhemaji and Jonai and has no personal knowledge when
accused Kamala Sharma was joined in which place.
96. Defence examined Sri Haliram Chamua, D.I. of Schools,
Jonai as DW.2. He deposed that he joined as D.I. of Schools, Jonai on
15.6.2005. He deposed that he has appeared before the Court after
receiving summon where he has been directed to produce the joining
order and other documents of Kamala Sharma, the then office Assistant
of D.I. of Schools, Jonai. He deposed that Ext.C is the Transfer Order of
Kamala Sharma and Ratneswar Das vide Memo No.
DEL/Esstt./DIS/82/89-90/3121-27 dtd.27.3.90. He deposed that by the
said order accused Kamala Sharma working as L.D. Assistant in the
office of D.I. of Schools, Dhemaji was transferred to the office off D.I.
of Schools, Jonai. He exhibited as Ext.D, the Release Order of accused
Kamala Sharma vide memo No. E-1/88/2937-39 dtd.18.4.90 from D.I. of
Schools, Dhemaji. He exhibited as Ext. E , the Joining Report of accused
Kamala Sharma dtd. 19.4.1990 as L.D. Assistant in the office of D.I. of
Schools, Jonai. He deposed that since the date of joining on 19.4.1990
Kamala Sharma is working under him in the office of D.I. of Schools,
Jonai till today the date of his deposition ( i.e. 12.1.2007).
36
97. In his cross-examination, DW.2 stated that during the
period 1989 to 1992 he hadnever been to Dhemaji or Jonai. He further
stated that in the year 1990 he was at Nagaon district as S.I. of Schools
and joined as D.I. of Schools at Jonai only on 15.6.2005.
98. Defence examined one Sri Jogantor Deori as DW.3 who
deposed that he joined as a teacher of Moridhal Dholagaon LP School in
the year 1995. He deposed that in the year 1995 he had to file a case
before the Hon’ble Gauhati High Court for non receipt of his salary and
recovery of his arrear pay. He deposed that the Hon’ble High Court has
directed the Govt. to release his arrear bill. He deposed that he received
his arrear pay and dues in the year 2000. He deposed that he received
the cheque issued by D.I. of Schools, Dhemaji in compliance of the
order of the Hon’ble Gauhati High Court. He further stated that as per
direction of the Director, Elementary Education on the strength of order
of the Hon’ble Gauhati High Court , the D.I. of Schools, prepared the
advice and sent it to the Head Clerk of the office to write the cheque
as per advice and placed before the D.I. of Schools for his signature
and thereafter the cheque was handed over to him after the signature of
D.I. of Schools.
99. In his cross-examination, he stated that he had applied
lonely before the Hon’ble Gauhati High Court for release of his salary. He
further stated that at the relevant time the school was under Govt. but
even then he did not receive his salary for which he had to approach
before the Hon’ble Gauhati High Court.
100. The defence examined one Haren Ch. Kalita,L.D. Assistant
posted at the office of District Elementary Education Officer, Dhemaji as
DW.4. He deposed that he knew Jogen Bora who served in the office of
District Elementary Education Officer , Dhemaji during 1994 -1995. He
37
also stated that during that period Jogen Bora also worked as I/C Dy.
Inspector of Schools. DW.4 stated that normally the teachers of primary
school are required to submit their bills before the Dy. Inspector of
Schools who passed the bills and thereafter the bills are required to be
sent to the BEEO who after passing the bills again returned back to the
Dy. Inspector of Schools and finally sent to the Treasury for
encashment. He stated that the salary bills of Primary teachers are
prepared center wise. But arrear bills are separately prepared and
passed.He stated that the S.I. of Schools of the office of the Dy.
Inspector of School is required to examine and to ascertain the existent
of the post concerned and thereafter Dy. Inspector of Schools is
required to examine and to ascertain the allotment of fund etc. He
stated that Dy. Inspector of Schools normally does not get any scope to
examine and ascertain all those aspects. He further started that he
know the signature of focused Jogen Bora for his long association with
him. He stated that he do not know who put signatures in Ext.5 to
Ext.34.
101. In his cross-examination, he stated that he did not sit in
the same room of accused Jogen Bora and he was not present when
the cheques were signed. He denied the suggestion that accused Jogen
Bora put his signatures in Ext.5 to Ext.34.
102. Defence examined one Sri Nirmal Konwar , Jr. Assistant in
the office of District Elementary Education Officer , Dhemaji as DW.5. He
deposed that in the year 1993 he joined in the office of DEEO , Dhemaji
in the capacity of Jr. Assistant cum Typist. He stated that in the capacity
of Jr. Assistant cum Typist he was allotted the duty to type out various
papers pertaining to the office administration. He submitted that it is
within his knowledge as to how the bills regarding the pay and arrear of
38
L.P. Schools are prepared. He submitted that the Headmaster of L.P.
Schools are required to prepare the salary bills etc. on the basis of
attendance register. He stated that the concerned Headmaster after
preparation of the bills normally submits it before the S.I. of Schools
who check its correctness and thereafter S.I. of Schools forward the
bills to the D.I. of Schools. The D.I. of Schools countersigned the bills
and thereafter forward to the Treasury for encashment. He further
stated that in respect of arrear bills of L.P. School Teachers the
aforesaid procedure is followed. He further stated that accused Jogen
Bora was working as District Elementary Education Officer, Dhemaji in
the year 1995 and at the same time also working as I/C, D.I. of Schools,
Dhemaji and worked in the capacity of D.I. of Schools. He stated that at
that relevant time arrear of some L.P. School teachers were released
from the office of District Elementary Education Officer, Dhemaji but the
same was done as per direction of Public Instruction (Elementary
Education). He stated that for release of the aforesaid arrear amount
some important officials from Director, Public Instruction, Guwahati
came to Dhemaji and under their supervision it was done. He further
stated that the arrear salaries were released on the basis of official
record submitted by the concerned Headmaster of school.
103. In his cross-examination, DW.5 stated that since 2005 he
is dealing with the files of pension , retirement benefit of the teachers
and employees of the office of District Elementary education Officer. He
stated that the salary bills and the arrear bills are not prepared in their
office. He also stated that he has no personal knowledge in regard to
the preparation of the aforesaid bills. He further stated that no payment
can be made without the approval of D.I. of Schools. He also stated that
at the relevant point of time accused JogenBora was working as D.I.
of Schools. He further stated that at the relevant time one Dy. Director
39
namely Mr. Narzari came to their office and he was present at the time
of disbursement of cheques to the L.P. school teachers.
DECISION AND REASONS THEREOF
104. Charge has been framed against the accused persons
U/S.120B/409/420/468/471 IPC and U/S.13(2)/13(1)(c) of P.C. Act,
1988.
105. Section 120B I.P.C deals with punishment for committing
criminal conspiracy. “Criminal conspiracy” has been defined in Section
120-A of I.P.C. as follows: “When two or more persons agree to do, or
cause to be done (1) An illegal act, or (2) An act which is not illegal by
illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence
shall amount to a criminal conspiracy unless some act besides the
agreement is done by one or more parties to such agreement in
pursuance thereof. Explanation.- It is immaterial whether the illegal act
is the ultimate object of such agreement, or is merely incidental to that
object.”
106. A bare perusal of the above section clarifies that in
order to bring home the charge U/S 120B I.P.C. prosecution must
prove the following: 1. That there must an agreement between the
persons who are alleged to conspire, and 2. That agreement should
be for (i) doing an illegal act, or (ii) for doing by illegal means an act
which by itself may not be illegal. 3. One or more persons in
pursuance of that agreement has done an overt act.
107. Charge was also framed against the accused persons
U/S 420 I.P.C. which reads as follows: “Whoever cheats and thereby
40
dishonestly induces the person deceived to deliver any property to
any person, or to make, alter or destroy the whole or any part of a
valuable security, or anything which is signed or sealed, and which is
capable of being converted into a valuable security, shall be punished
with imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.”
108. A careful perusal of section 420 I.P.C. reflects that in
order to bring home the charge U/S 420 I.P.C. prosecution must
prove the following ingredients: I. That there must be deception i.e.
the accused must have deceived someone, II. That by the said
deception the accused must have induce a person, (a) to deliver any
property, or (b) to make, alter or destroy the whole or part of the
valuable security or anything which is signed or sealed and which is
capable or being converted into valuable property. III. That the
accused did so dishonestly.
109. Charge was also framed against the accused persons
U/S 468 I.P.C. which deals with committing forgery for the purpose
of cheating. Section 468 I.P.C. reads as follows: “Whoever commits
forgery, intending that the document [or electronic record] forged
shall be used for the purpose of cheating, shall be punished with
imprisonment of either description for a term which may extend to 7
years and shall also liable to fine.”
110. A careful perusal of section 468 I.P.C. shows that in
order to bring home charge U/S 468 I.P.C. prosecution must prove
that (i) the accused has committed forgery by making false
document or false electronic record, and (ii) that the accused had
done so intending that the forge document or electronic record shall
be used by him for the purpose of cheating.
41
111. Charge was also framed against the accused persons
U/S 471 I.P.C. which reads as follows: “Whoever fraudulently or
dishonestly uses as genuine any document or electronic record which
he knows or has reason to believe to be a false document, or
electronic record shall be punished in the same manner as if he had
forged the document.”
112. In order to bring home the charge U/S 471 I.P.C.
prosecution has to prove the following ingredients- (i) the accused is
using fraudulently or with dishonest intention a document as
genuine, and (ii) that the accused using that document has the
knowledge or has reason to believe that the document is a forge
one.
113. Charge has been framed U/S.409 IPC also, which deals
with criminal breach of trust by public servant, banker, merchant or
agent. A careful perusal of Section 409 IPC read with Sec.405 IPC
reflects that in order to bring home charge U/S.409 IPC prosecution
must prove that there was entrustment of property or dominion of
property upon the accused person, and the accused person
dishonestly misappropriates the same or disposes the same in
violation of prescribed procedure of law.
114. Charge was also framed against accused persons U/S
13(1)(c) r/w section 13(2) of P.C. Act. Section 13(2) of P.C. Act deals
with punishment for committing any criminal misconduct by any
public servant. As per Section 13(1)(c) of P.C. Act a public servant is
said to commit the offence of criminal misconduct, if he by corrupt
or illegal means misappropriates or allows any other person to do
upon any property entrusted to him.
42
115. Prosecution in order to bring home the charge U/S
13(1)(c) r/w section 13(2) of P.C. Act must prove that the accused is
a public servant, and the accused while discharging his duties as
public servant by corrupt or illegal means by abusing his position as
a public servant misappropriates the property or allows any other
person to do so.
116. During course of argument learned P.P. submitted that
during the year 1989, hundreds of L.P. School teachers were illegally
appointed by the then S.I. of Schools, Dhemaji against non existent
posts which were subsequently terminated by the Government in the
year 1992. Learned P.P. submitted that the terminated teachers had
approached the Hon’ble Gauhati High Court by filing several Civil Rules.
Learned P.P. submitted that the Hon’ble Gauhati High Court has upheld
the order of termination of teachers by the Government and at the
same time directed the Government to make payment to the terminated
teachers for the period for which they actually served. Learned P.P.
submitted that in compliance of the order of the Hon’ble Gauhati High
Court, the Government vide Ext.3 and Ext.4 had released more than Rs.
3 Crores to the D.I. of Schools, Dhemaji for arrear payment of the
terminated teachers. Learned P.P. submitted that after making the
necessary payment of about 280 number of terminated teachers, an
amount of Rs.84,92,802/- (Rupees Eighty four lacs ninety two thousand
eight hundred two) only remained in excess. Learned P.P. submitted
that in order to misappropriate a part of the said excess amount the
then D.I. of Schools, Dhemaji accused Jogen Bora, Khagen Deori, Head
Assistant, Sri Kamala Sharma, Jogeswar Barpatra Gohain and others
entered into criminal conspiracy and in pursuance to that conspiracy
43
filed Civil Rule No.2223/95 before the Hon’ble Gauhati High Court in
respect of twenty number of fictitious petitioners showing them as
terminated teachers and was able to obtain an order on 5.6.1995 from
the Hon’ble High Court directing the Director of Elementary Education,
Assam to examine the matter of the petitioners and if found correct to
pay their pay and allowances for the period they served within a period
of two months from the date of order. The learned P.P. submitted that a
certified copy of order dtd. 5.6.1995 passed in Civil Rule No.2223/95
was obtained and added ten more names as petitioners in the certified
copy of that order (Ext.37) and thereby forged the said document and
on the basis of the said document accused Jogen Bora, the then D.I. of
Schools, Dhemaji released payment in favour of thirty nos. of fictitious
terminated teachers on 8.6.1995 vide Ext.5 to 34. Learned P.P.
submitted that PW.19 Siba Dutta who worked in the office of D.I. of
Schools, Dhemaji and PW.4 Lalit Rajkhowa who also worked as U.D.
Assistant in the office of D.I. of Schools, Dhemaji had identified the
signatures of accused Jogen Bora in Ext.5 to Ext.34, the cheques
through which payment were made. Learned P.P. submitted that the
witness PW.28 Hareswar Das, the Scientific Expert also confirmed that
Ext.5 to Ext.34 appears the signatures of accused Jogen Bora. Learned
P.P. submitted that prosecution has examined several witnesses like
PW.5 Ashok Sharma, PW.6 Rajesh Kr. Sharma, PW.12 Anupam Deori,
PW.27 Prasanta Chetia in whose favour cheques were issued and who
deposed on oath before the Court that they never received such
cheques. Learned P.P. submitted that the accused persons prepared and
issued the cheques in favour of fictitious persons and misappropriated
the same. Learned P.P. further submitted that accused Smti. Dipika Devi
and Sri Kamala Sharma are husband and wife and accused Kamala
Sharma used to work as L.D. Assistant in the office of D.I. of Schools,
Dhemaji before his transfer to the office of D.I. of Schools, Jonai.
44
Learned P.P. submitted that accused Sri Kamala Sharma had conspired
with accused Jogen Bora and Khagen Deori (since deceased) and took
Rs.49,294/- by issuing a cheque in the name of his wife Smti. Dipika
Devi and as such both are liable U/S.120B IPC. Learned P.P. also
submitted that accused Jogeswar Barpatra Gohain was involved in
opening of fictitious bank account at UBI, Dhemaji Branch by becoming
introducer. Learned P.P. accordingly prayed to convict all the accused
persons as per the relevant provisions of law.
117. On the other hand, learned counsel for accused Jogen
Bora has submitted written argument and took the plea that the
evidence of prosecution witnesses like PW.5 Sri Ashok Sharma, PW.6 Sri
Rajesh Kr. Sharma, PW.10 Sri Khargeswar Changmai, PW.12 Sri
Anupam Deuri and PW.27 Prasanta Chetia by which prosecution
establishes the fact that cheque amounting to Rs.49,294/- were
issued against their names from the office of D.I. of Schools, Dhemaji
but their evidence also disclosed that there may be other persons of
the same name and these prosecution witnesses does not implicate
accused Jogen Borah. Learned defence counsel for accused Jogen Bora
also took the plea that the prosecution has not examined any witness to
show that there was meeting of mind of the accused persons to attract
Sec.120B IPC. Another plea taken by the learned defence counsel is that
the investigating officer admitted that he could not find out who had
obtained the certified copy of order passed by the Hon’ble High Court
dtd. 5.6.95 in Civil Rule No.2223/95 from the Hon’ble Gauhati High
Court and who had submitted the same before the office of D.I. of
Schools, Dhemaji. It is submitted that the I.O. also failed to find out who
has inserted the name of ten petitioners in addition to the existing
twenty number of petitioners in the certified copy of the said order
(Ext.37). Learned defence counsel submitted that so the ingredients of
45
Sec.468/471 IPC were missing. Learned counsel for accused Jogen Bora
also submitted that in this case the informant is himself the investigating
officer of this case being PW.31 Jagadish Sharma. Learned defence
counsel submitted that as the informant himself is the investigating
officer there cannot be any fair investigation. Learned counsel for
accused Jogen Bora also submitted that the prosecution sanction
accorded against accused Jogen Bora was accorded mechanically
without application of mind. Learned defenece counsel accordingly
prayed for acquittal of accused Jogen Bora.
118. Learned counsel for accused Smti. Dipika Devi submitted
that none of the witnesses have stated anything against accused Dipika
Devi. He submitted that the investigating officer has implicated accused
Smti Dipika Devi only because her name appears as one of the
petitioners of Civil Rule No.2223/95. Learned defence counsel submitted
that in the said Civil Rule the name of Smti Dipika Devi appears without
the name of her father or of her husband and of her address. Learned
defence counsel submitted that the present accused Smti Dipika Devi is
not the petitioner whose name appears in Civil Rule No.2223/95 and
accordingly prayed for acquittal of accused Smti Dipika Devi.
119. Learned counsel for accused Kamala Sharma submitted
that the main allegation of this case is that on 5.6.1995 the Hon’ble
Gauhati High Court passed the order in Civil Rule No.2223/95 and the
certified copy of the order was obtained on 7.6.95 and the D.I. of
School, Dhemaji issued the cheques for payment against some alleged
fictitious teachers for payment on 8.6.1995. The learned counsel
submitted that during this period from 5.6.1995 to 8.6.1995 accused
Kamala Sharma was not posted at the office of D.I. of Schools, Dhemaji
but he was posted at the office of D.I. of Schools, Jonai. Learned
46
defence counsel submitted that PW.17 Sri Tarini Mohon Gogoi as well as
DW.1 Kamal Hussain and DW.2 Haliram Chamua corroborates the
above claim and DW.2 who was working as D.I. of Schools, Jonai by
produced relevant transfer order(Ext.C) of accused Kamala Sharma
which was issued on 27.3.1990. Learned defence counsel submitted that
accused Kamala Sharma was released from the office of D.I. of Schools,
Dhemaji on 18.4.1990 vide Ext.D and accused Kamala Sharma joined as
L.D. Assistant in the office of D.I. of Schools, Jonai on 19.4.1990 (Vide
Ext.E). Learned defence counsel for accused Kamala Sharma as such
submitted that accused Kamala Sharma was not present in the office of
D.I. of Schools, Dhemaji at the time of occurrence and that he has been
falsely implicated in this case and accordingly prays for acquittal of
accused Kamala Sharma.
120. Learned counsel for accused Jogeswar Barpatra Gohain
submitted that not of the single witness has uttered a single word
against accused Jogeswar Barpatra Gohain. He also submitted that the
I.O. during investigation has not seized any bank account opening form
from the bank to show the role of accused Jogeswar Barpatra Gohain in
opening such account. Learned counsel accordingly prays for acquittal
of accused Jogeswar Barpatra Gohain .
121. Charge has been framed accused Jogen Bora , Kamala
Sharma, Smti Dipika Devi and Jogeswar Barpatra Gohain
U/S.120B/420/468/471 IPC. Separate charge has been framed against
accused Jogen Bora, Kamala Sharma and Smti Dipika Devi U/S.409 IPC
and U/S.13(2) read with Sec.13(1)(c) of P.C. Act.
122. Let us now appreciate the evidence which has been
brought into record by both the parties to see if prosecution has been
able to bring home the charges against the accused persons. The gist of
47
the allegation which the prosecution is trying to establish in this case is
that on 5.6.1995 the Hon’ble Gauhati High Court passed an order in
Civil Rule No.2223/95 in respect of twenty number of petitioners
whereby the Hon’ble Gauhati High Court directed the Director of
Elementary Education, Assam to examine the matter and if the
averments made in the petition are found to be correct then to make
payment to the petitioners for the period they served as teachers. The
case of the prosecution is that the above twenty petitioners who
approached the Hon’ble Gauhati High Court vide Civil Rule No.2223/95
were fictitious teachers, and after obtaining the certified copy of the
said order from the Hon’ble Gauhati High Court the same has been
tampered with and forged by adding the name of ten more petitioners.
The case of the prosecution is also that on 8.6.1995 the D.I. of Schools,
Dhemaji had issued cheques vide Ext.5 to Ext.34 amounting to
Rs.49,294/- each in favour of the 30 nos. of fictitious terminated
teachers and misappropriated the same.
123. Prosecution exhibited the original record of Civil Rule No.
2223/95 as Ext.63 which was forwarded by the then Joint Registrar
(Judl.II) of the Hon’ble Gauhati High Court vide Memo No.1/Record
Room dtd. 18.11.2011 vide Ext.64. The perusal of the original record of
Civil Rule 2223/95 clearly reflects that there are twenty nos. of
petitioners namely (1) Smti Dipika Devi, (2) Sri Krishna Sharma, (3)
Gobin Changmai, (4) Rajesh Sharma, (5) Deba Sharma (6) Ashok
Sharma, (7) Smti Monika Devi, (8) Smti. Annapurna Devi, (9) Ramjoy
Deori, (10) Nipen Kr. Deori, (11) Sri Anupam Deori,(12) Lukumoni
Chutia, (13) Smti. Santana Changmai, (14) Kolia Deori, (15) Mintu Deori,
(16) Chandan Sharma, (17) Prasanta Chetia, (18) Deba Kanta Sangmai,
(19) Gudunga Deori and (20) Pabitra Sonowal. In the petition filed
before the Hon’ble Gauhati High Court the address of all the petitioners
48
are shown as resident of Dhemaji, P.O., PS & District-Dhemaji but the
name of the father/husband of the petitioners are not mentioned.
Prosecution exhibited the certified copy of order dtd. 5.6.1995 passed in
Civil Rule No.2223/95 as Ext.37, which was applied on 5.6.1995 and
received on 7.6.1995. Perusal of Ext.37 reflects that the name of ten
nos. of petitioners are added in that certified copy of order apart from
the name of twenty nos. of petitioners whose names appeared in the
original record of Civil Rule No.2223/95. The newly added names in
Ext.37 are in serial no. 21. Ratneswar Doley, 22. Ranju Sarma, 23.
Lakshmi Gohain, 24. Smti. Kabita Gogoi, 25. Smti. Kumari pegu, (26)
Smti Niroda Devi, 27. Pradip Chutia, 28. Smti Renu Dutta, 29. Lilla Kanta
Chutia and 30. Deben Dutta.
124. After perusal of Ext.63, the original record of Civil Rule
No.2223/95 together with the certified copy of order dated 5.6.1995
passed in Civil Rule No.2223/95 (Ext.37) it clearly reflects that the order
of the Hon’ble Gauhati High Court is manipulated and forged vide
Ext.37.
125. We have found that prosecution examined one Sri Babul
Ch. Hazarika, Manager, United Bank of India, Dhemaji branch as PW.7
who deposed that on 18.7.1997 while he was working as manager of
UBI, Dhemaji Branch police seized from him 30 nos. of cheques vide
Ext.35 and he identified the cheques as Ext.5 to Ext.34. The evidence of
PW.7 regarding the seizure of the cheques being Ext.5 to Ext.34 vide the
Seizure list Ext.35 is duly corroborated by PW.3 Prakash Bordolai who
was working as cashier at the relevant point of time in UBI, Dhemaji
Branch. This two witnesses were not cross-examined by the defence
and as such seizure of the cheques are not disputed.
49
126. PW 4 Lalit Rajkhowa who worked as UD Assistant in the
office of D.I. of Schools, Dhemaji deposed that Ext.5 to Ext.34 were
issued from the office of D.I. of Schools, Dhemaji and the same were
written by the Head Assistant of the office of D.I. of Schools, Khagen
Deori (since deceased) and the then D.I. of Schools, Dhemaji, accused
Jogen Borah signed in all those cheques as DDO. The evidence of PW4
is duly corroborated by the evidence of PW19 Siba Dutta, another U.D.
Assistant of the office of D.I. of Schools, Dhemaji who deposed that
Ext.5 to Ext.34 the cheques were issued by the then D.I. of Schools,
Dhemaji, accused Jogen Borah
127. Perusal of Ext.5 to Ext.34 reflects that the cheques were
issued on 8.6.1995 in favour of thirty nos. of petitioners whose names
appeared in the certified copy of order (Ext.37) dtd. 5.6.1995
purportedly passed by the Hon’ble Gauhati High Court in Civil Rule
No.2223/95. The above evidence clearly proves that after tampering
and forging with the order of the Hon’ble Gauhati High Court dtd.
5.6.1995 payments were immediately made in favour of the thirty nos.
of fictitious petitioners.
128. Prosecution examined PW.5 Ashok Sarma , PW.6 Rajesh
Kr. Sharma, PW.9 Lukumoni Chutia, PW.11 Chandan Sarma, PW.12
Anupam Deori and PW.27 Prasanta Chetia whose names appears in
Ext.37 and the above witnesses have stated on oath before this Court
that they have not received any cheque ( Ext.29, Ext.5, Ext.18, and
Ext.9 etc. ) amounting to Rs.49,294/- each as they never worked as
teachers at the relevant point of time. Suggestions were given by the
defence that there were some other persons of the same name in that
locality. Suggestions are mere suggestion unless proved. The defence in
order to prove the suggestion that there were some other persons of the
50
same name in the locality has not examined any witness , as such the
suggestion of the defence in my view is not sustainable.
129. PW.4 Lalit Rajkhowa , UD Assistant of the office of D.I. of
Schools , Dhemaji in his deposition stated before this Court that Ext.5 to
Ext.34, the cheques issued from their office were written by Khagen
deori, (since deceased) the then Head Assistant of the office of D.I. of
Schools, Dhemaji and accused Jogen Bora, the then D.I.of Schools,
Dhemaji signed in all the above cheques as DDO. In cross-examination
PW.4 confirmed that at that relevant time chequebooks were in the
custody of the Head Assistant of D.I. of Schools Khagen Deori. He
denied the suggestion that the cheques were not written by accused
Khagen Deori and signed by Jogen Bora.
130. It is to be noted that the then Head Assistant of the office
of D.I. of Schools, Dhemaji, Khagen Deori (since deceased) has been
charge sheeted as accused in this case but he expired during trial for
which the case against accused Khagen Deori has been abated .
131. Prosecution examined PW.19 Sri Siba Dutta, the then U.D.
Assistant of the office of D.I. of Schools, Dhemaji who identified the
signatures of accused D.I. of Schools, Jogen Bora in Ext.5 to Ext.34 as
Ext.5(1) to Ext.34(1).
132. Prosecution examined the Forensic Science Expert Sri
Hareswar Das as PW.28. In his evidence, PW.28 deposed that he
examined the documents carefully and thoroughly and marked the
questioned items referred in this case in Q series and specimen writings
and signatures supplied for the purpose of comparison in S series and
contemporaneous writings in A series. He further deposed that he
carefully examined the questioned items and compared them with the
51
relevant standard materials from the original documents in all aspects of
handwritings, identification and detection of forgery with the necessary
scientific aids. He deposed that Ext.5 to Ext.34 are questioned cheques
which contained with marking as Q1 to Q60 and Q1(1) to Q30(1),
Q39(1) to 53(1). Ext.49 and Ext.50 contains the specimen signatures of
accused Jogen Bora wherein, in his markings S1, S1(1), S2 and S2(1)
contain. Ext.51 and Ext.52 are the documents containing specimen
writings and signatures of Sri Khagen Deori wherein in his markings S3,
S3(1), S4, S4(1), exists. PW.28 stated that Ext.38(1) to Ext.38(5) are
the pages of cashbooks containing admittedly genuine writings of Sri
Khagen Deori.Ext.38(6) to Ext.38(10) are admittedly the genuine
signatures of accused Jogen Bora in the above cash book. He deposed
that after careful examination he found that who wrote the blue
enclosed signatures stamped and marked S1, S1(1), S2, S2(1) and A6 to
A10 also wrote the red enclosed signatures similarly stamped and
marked Q31 to Q39, Q39/1, Q40 to Q53, Q53/1 and Q54 to Q60.PW.28
also deposed that the person the person who wrote the blue enclosed
writings and signatures stamped and marked S3, S3(1), S4, S4(1), A1,
A2(1), A3, A3(1), A4, A4(1), A5 and A5(1) also wrote the red enclosed
writings and signatures similarly stamped and marked Q1 to Q30, and
Q31/1, Q30(1). In cross-examination, PW.28 stated that there is no
distinct demarcation for initials and signatures by definition. As the
questioned items contains the letter form for J & B representing Jogen
Bora, they can term them as initial and also as short signature. In cross-
examination he also stated that there is a variation in certain alphabet
of a person’s writings. This variation which is a natural for everybody’s
writings are called natural variation and it is an integral part of genuine
writing. This variation cannot be termed as different.
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133. After careful perusal of the Ext.5 to Ext.34 and the
evidence of PW.4 Lalit Rajkhowa , PW.19 Siba Dutta and the evidence of
the Forensic Expert (PW.28), we found that the evidence of these three
witnesses could not be demolished by the defence and their evidence
proves that Ext.5 to Ext.34, the cheques were signed by the then D.I. of
Schools, Dhemaji, accused Jogen Bora which were prepared by Khagen
Deori (since deceased), the then Head Assistant of D.I. of Schools,
Dhemaji. Now, the question comes into the mind of the Court as to
whether the fact proved by the prosecution that accused Jogen Bora,
the then D.I. of Schools, Dhemaji released the amount by issuing
cheques being Ext.5 to Ext.34 is sufficient to convict him or any other
accused persons in this case in respect of the offences for which charge
has been framed against them .
134. If we go through the evidence of the witnesses more
particularly the evidence of I.O. PW.31 Jagadish Sharma, we found that
PW.2 Sri Kirti Kamal Gogoi was the original complainant of this case on
the basis of which the regular enquiry was initiated and the I.O. has not
seized the original complaint in this case. We also found that the
occurrence of this case took place in the office of the D.I. of Schools,
Dhemaji during the period from 5.6.1995 to 8.6.1995 and the I.O.
during the course of investigation could not detect the person who had
obtained the certified copy of order (Ext.37) passed by the Hon’ble
Gauhati High Court on 5.6.1995 in Civil Rule No.2223/95. The I.O. also
could not detect whohas tampered with the order of the Hon’ble
Gauhati High Court by adding the name of ten more petitioners in that
certified copy of order (Ext.37). We also found that the investigating
officer during his course of investigation could not detect who had
submitted the certified copy of order in the office of D.I. of Schools,
Dhemaji . The very basis of the prosecution case was that the order of
53
the Hon’ble Gauhati High Court was tampered and forged with vide
Ext.37 and on the basis of the forged document the thirty nos. of
cheques were issued in favour of fictitious terminated teachers. As
discussed above we have found that the prosecution, more particularly
the investigating officer, could not produce any evidence to show as to
who has tampered or fabricated the certified copy of order (Ext.37) of
the Hon’ble Gauhati High Court. As such it appears that there is no
material to attract Sec.468 IPC against any of the accused persons.
135. The case of prosecution is also that accused Jogen Bora
had released the cheques on the basis of tampered and forged
documents (Ext.37). However while analyzing the evidence as discussed
above, we have found that there is no evidence to show that accused
Jogen Bora at the time of releasing the cheques was aware that Ext.37
was a forged and tampered document. None of the witnesses have
stated that any of the accused persons were aware that the Ext.37 was
forged. As such there is no material against any of the accused person
to show that the accused persons were aware that the Ext.37 was a
false document and they used the same as genuine inspite of knowing
the same as tampered and forged. As such the ingredient of Sec. 471
IPC is missing against all the accused persons.
136. While analyzing the evidence it has come into record
from the prosecution witnesses as well as from the defence witnesses
that accused Kamala Sharma during the relevant period between
5.6.1995 to 8.6.1995 was not working in the office of D.I. of Schools,
Dhemaji but he was working in the office of D.I. of Schools,
Jonsai.PW.17 Tarinmi Mohon Gogoii as well as DW.1 Kamal Hussain ,
the then D.I. of Schools, Dhemaji and DW.2 Haliram Chamua, the then
D.I. of Schools, Jonai have categorically deposed that accused Kamala
54
Sharma was transferred from the office of the D.I. of Schools, Dhemaji
to the office of the D.I. of Schools, Jonai vide order dated 27.3.1990
(Ext.C) and accused Kamala Sharma joined in the office of the D.I. of
Schools, Jonai on 19.4.1990 (Ext.E). DW.2 Haliram Chamua, D.I. of
Schools, Jonai also deposed that accused Kamala Sharma since the date
of his joining in the office of D.I. of Schools, Jonai has been working in
the same office till the date of his deposition (I.e. 12.1.2007). The
evidence of PW.17 along with the evidence of DW.1 and DW.2 clearly
established that accused Kamala Sharma was not working in the place of
occurrence i.e. the office of D.I. of Schools, Dhemaji at the relevant
period, i.e. from 5.6.1995 to 8.6.1995. Moreover none of the witnesses
have stated any incriminating materials against accused Kamala Sharma
in respect of any of the charge that has been brought against him.
Accordingly, accused Kamala Sharma is entitled for acquittal in respect
of all the charges.
137. While going through the entire evidence we have found
that the prosecution has not brought any material against accused Smti
Dipika Devi. There is no material in the record except the appearance of
the name of Smti. Dipika Devi as one of the petitioners of Civil Rule
No.2223/95. As such accused Smti Dipika Devi is also entitled for
acquittal in respect of all the charges.
138. While going through the evidence and the materials
brought into record, we have also found that the prosecution evidence is
completely silent in respect of accused Jogeswar Barpatra Gohain .
None of the witnesses including the bank witnesses have stated
anything against accused Jogeswar Barpatra Gohain. As such accused
Jogeswar Barpatra Gohain is also entitled for acquittal in respect of all
the charges.
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139. While analyzing the above evidence we have found that
accused Jogen Bora had issued the cheques being Ext.5 to Ext.34. We
have also found that prosecution has not been able to bring any
ingredient to attract Sec. 468 IPC and Sec.471 IPC against accused
Jogen Bora for which accused Jogen Bora is entitled for acquittal in
respect of charge U/S.468/471 IPC.
140. While going through the evidence that has been brought
into record by the prosecution, we found that prosecution has not been
able to brought into record as to who had encased the cheques issued
by accused Jogen Bora vide Ext.5 to Ext.34. There is no evidence to
show that accused Jogen Bora being public servant has misappropriated
the said amount which has been released by him vide Ext.5 to Ext.34.
141. PW.21 Sri Keshab Ch. Phukan, retired Manager of United
Bank of India, Dhemaji Branch has deposed that Ext.5 to Ext.34, were
the cheques issued by D.I. of Schools, Dhemaji in the name of various
teachers mentioned in the cheques and the said cheques were
encashed by the respective persons. He further stated in cross-
examination that the persons who had encashed the cheques had their
account in his Bank and all these cheques were Account Payee
Cheques. He also stated in cross-examination that the persons who had
withdrawn the money put their signatures on the backside of the
cheques. There is nothing to disbelief the evidence of PW21 who is an
independent witness.
142. The evidence of PW.21 reflects that the cheques being
Ext.5 to Ext.34 were encashed by persons who had account in their
Bank. Prosecution has not led any evidence to show that the cheques
were encashed by accused Jogen Bora by himself or by through any
other persons. It appears that there is lack of ingredient to attract
56
Sec.409 IPC against accused Jogen Bora. The above evidence also
shows lack of ingredient to attract Sec.13(2)/13(1)(c) of Prevention of
Corruption Act, 1988 against accused Jogen Bora . As such accused
Jogen Bora is acquitted of the charge U/S.409 IPC and
U/S.13(2)/13(1)(c) of PC Act.
143. While going through the evidence we have found that
accused Jogen Bora who was working at the relevant point of time as
D.I. of Schools, Dhemaji had dominion over Government money which
was released by the Government for payment towards terminated
teachers vide Ext.3 and Ext.4. PW.1 Sri Rajani Phukan in his evidence
has deposed that Ext. 3 is the Allotment of Fund order for payment of
arrear pay to the irregular teachers and Ext.3(1) is the signature of the
then Director, Elementary Education, Assam. He also exhibited another
allotment of fund order for payment of arrear of pay and allowances to
the irregular teachers as Ext.4. Accused Jogen @ Jogendra Bora had
dominion over the Govt. money being D.I. of Schools, Dhemaji cannot
be disputed on the ground that he had issued cheques being Ext.5 to
Ext.34 from the Account of D.I. of Schools, Dhemaji being Account No.
CD 155 maintained at United Bank of India, Dhemaji Branch and those
cheques were duly encashed . Now, the question arise before this Court
whether accused Jogen Borah @ Jogendra Bora is guilty of offence
U/S.420 IPC for cheating the Govt. by paying a total sum of
Rs.14,78,820/- (Rupees fourteen lacs seventy eight thousand eight
hundred twenty) only as salary in favour of 30 nos. of fictitious
terminated teachers.
144. There cannot be any dispute that accused Jogen @
Jogendra Bora had issued the cheques (Ext.5 to Ext.34) on the basis of
certified copy of order dated 5.6.1995 issued by the Hon’ble High Court
57
in Civil Rule No.2223/95. A careful perusal of the said order dated
5.6.1995 passed by the Hon’ble High Court reflects that the Hon’ble
Gauhati High Court disposed off the said Civil Rule with a direction to
the Respondent No.2, the Director of Elementary Education, Assam,
Guwahati to examine the matter and if the averments made in the
petition are found correct the petitioners shall be paid their pay and
allowances for the period they served within a period of two months
from the date of receipt of this order. The order of the Hon’ble Gauhati
High Court is clear and specific that the Director of Elementary
Education, Assam, Guwahati would examine the correctness of the
averment made by the petitioners in Civil Rule No.2223/95 and if the
Director , Elementary Education, Assam finds the averment correct then
he would make payment to the petitioners within a period of two
months from receipt of the said order. In this case, it is clear that the
certified copy of the said order was obtained on 7.6.1995 and accused
Jogen @ Jogendra Bora issued the cheques for payment in favour of
thirty nos. of petitioners (fictitious petitioners) on 8.6.1995. Accused
Jogen @ Jogendra Bora clearly showed his malafide intention by
violating the order of the Hon’ble Gauhati High Court by not waiting for
any direction to be received from the Director, Elementary Education,
Assam, Guwahati . The act of accused Jogen Bora clearly reflects his
malafide intention to release the amount in a haste manner.
145. While going through the entire evidence that has been
brought into record , we found that it is the investigating officer (PW.31
Jagadish Sharma) who had conducted regular enquiry and submitted
report. It is PW.31 who lodged the FIR after completion of the regular
enquiry and it is PW.31 who was entrusted with the investigation of this
case and completed the entire investigation and thereafter submitted
Charge sheet. It shows that PW.31 was the Inquiry officer, informant as
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well as the investigating officer of this case. It is PW.31 Sri Jagadish
Sharma who has done entire things from regular enquiry to submission
of charge sheet in this case. There is no other police officer who has
investigated this case.
146. The Hon’ble Supreme Court in the case between
State of Haryana –vs- Bhajanlalreported in AIR 1992 SC 604
regarding Section17 of Prevention of Corruption Act observed as
follows:
“It has been ruled by this Court in several decisions that Sec.5-A
of the Act is mandatory and not directory and the investigation
conducted in violation thereof bears the stamp of illegality, but that
illegality committed in the course of investigation does not affect the
competence and jurisdiction of the Court for trial and where the
cognizance of the case has in fact been taken and the case is proceeded
to termination, the invalidity of the preceding investigation does not
vitiate the result unless miscarriage of justice has been caused thereby.
However, if any breach of the said mandatory proviso relating to
investigation is brought to the notice of the Court at an early stage of
trial, the Court will have to consider the nature and extent of violation
and pass appropriate order as may be called for rectify the illegality and
cure the defects in the investigation. “
Sec.17 of the Prevention of Corruption Act relates to
person or officer who are authorized to investigate offences under the
Prevention of Corruption Act.
147. The Hon’ble Supreme Court in the case of Mohon
Lal –vs- State of Punjab reported in (2018) AIR SC 3853 has
dealt with the question of whether the informant can be the
59
investigating officer of the same case. The three Judges Bench of
the Hon’ble Supreme Court has discussed the case law of
Bhagaban Singh –vs- State of Rajasthan (1976) 1SCC 15,
Megha Singh –vs- State of Haryana (1996) 11SCC 709,
Inspector of Police, Narcotic Intelligence Bureau –vs- Rajangan
(2010) 15 SCC 369, State of Punjab –vs- Baldev Singh (1999) 6
SCC 172, Surendra –vs- State of Haryana (2016) 4 SCC 617,
Nausad –vs- State of Kerela (2000) 1 KLT 785, Kedar –vs- State
of kerela (2001) Crl. LJ.4044 and observed in para 25 of the said
judgment as follows:
25. “In view of the conflicting opinions expressed by different two
Judge Benches of this Court, the importance of a fair investigation from
the point of view of an accused as a guaranteed constitutional right
under Article 21 of the Constitution of India, it is considered necessary
that the law in this regard be laid down with certainty. To leave the
matter for being determined on the individual facts of a case, may not
only lead to a possible abuse of powers, but more importantly will leave
the police, the accused, the lawyer and the Courts in a state of
uncertainty and confusion which has to be avoided. It is therefore held
that a fair investigation, which is but the very foundation of fair trial,
necessarily postulates that the informant and the investigator must not
be the same person. Justice must not only be done, but must appear to
be done also. Any possibility of bias or a predetermined conclusion has
to be excluded. This requirement is all the more imperative in laws
carrying a reverse burden of proof.”
148. A careful perusal of the judgment passed by the Divisional
Bench of the Hon’ble Supreme Court of India in Mohon Lal –vs- State of
Punjab, it appears that for fair investigation which is the foundation of a
60
fair trial postulates that the informant and the investigating officer can
not be the same and one person. The Judgment of the Hon’ble Supreme
Court of India reflects that if the informant become the investigating
officer there is possibility of biasness or a predetermined conclusion. In
the present case in our hand, it is PW.31 Jagadish Sharma who not only
conducted the regular enquiry against the accused persons but also
submitted the FIR, conducted the investigation and ultimately submitted
Charge sheet against the accused persons. The Hon’ble Supreme Court
observed that there is possibility of biasness and pre-drawn conclusion if
the informant and the investigating officer is the same and one person.
As in this case the informant and the investigating officer is the same
and one person, accused Jogen Borah deserved benefit of doubt and as
such accused Jogen Bora is acquitted of the charge U/S.420 IPC on
benefit of doubt. As all the accused persons are acquitted, Sec.120 IPC
has become redundant and all the accused persons are acquitted of this
section also.
149. In view of the above discussions, accused Kamala Sharma,
Smti. Deepika Devi, and Sri Jogeswar Barpatra Gohain are acquitted of
the charge U/S.120B/420/468/471 IPC. Accused Jogen @ Jogendra
Bora, Sri Kamala Sharma and Smti. Deepika Devi are also acquitted of
the charge U/S.409 IPC and U/S.13(2) read with Sec.13(1)(c) of
Prevention of Corruption Act, 1988. Accused Jogen Bora is also acquitted
of the charge U/S.120B/468/471 IPC.
150. Accused Jogen Bora @ Jogendra Bora is acquitted of the
offence U/S.420 IPC on benefit of doubt.
151. The accused persons are set at liberty forthwith. However
their bail bonds shall remain in force for next 6 months as per provisions
of section 437A Cr.P.C.
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152. Original documents, articles seized during the course of
investigation be returned to the department/ person concerned in due
course of time.
153. Judgment is delivered in the open Court under given my
hand and seal of this Court on this 14th day of May, 2019 at Guwahati.
Dictated & corrected by me.
Special Judge, Assam. Special Judge, Assam.
Guwahati. Guwahati.
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A N N E X U R E S
Name of Exhibits(PROSECUTION)
1. Ext.1 is the Seizure list.
2. Exts.2 is the Counterfoil of Cheque Book.
3. Ext.3 and Ext.4 are the allotment order of fund for payment of arrear pay & allowances to the irregular teachers.
4. Ext.5 to Ext.34 are the cheques.
5..Ext.35 and Ext.36 are the Seizure lists.
6. Ext.37 is the certified copy of order of High Court in Civil Rule No.2223/95.
7.Ext.38 is the subsidiary cashbook.
8.Ext. 39 is an application filed by PW.10 to Sub- Inspector of Schools
9. Ext.40 is the seizure Memo.
10. Ext.41 is the Forwarding Letter (under objection).
11. Ext.42 is the Prosecution Sanction Order against accd. Khagen Deori.
12. Ext.43 is theProsecution Sanction Order against accd. Kamala Sarmah
13. Ext.44 is the Prosecution Sanction Order against accd. Udayaditya Phukan.
14. Ext.45 is the Prosecution Sanction Order against accd. Jogendra Bora.
15. Ext.46 is the Sanction Order accorded against Smti. Deepika Devi.
16. Ext.47 is the Forwarding Letter of Dr. K. Goswami, the then Director, FSL, Assam.
17. Ext.48 is the opinion of PW.28 Hareswar Das, Dy. Director, FSL, Assam, Guwahati.
18.Ext.49& Ext.50 are the Specimen signatures of accused Jogendra Bora.
19.Ext.51& Ext.52 are the Specimen writings and signature of accused Khagen Deori.
20. Ext.53 is the document containing reasons of
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opinion of PW.28.
21. Ext.54 is the Forwarding letter of S.P, C.M’s Special
Vigilance Cell, Assam, Guwahati.
22. Ext.55 is the Certificate issued by PW.29 Deben
Konwar, retired Headmaster Goal- Chapari MV
School.
23. Ext.56 is the Charge sheet and Ext.56(1) is the
is the signature of PW.30 Nabab Imdad Hussain.
24. Ext.57 is the ejahar lodged by PW.31 Jagadish
Sarmah .Ext.57(1) is the signature of PW.31.
25. Ext.58 is the printed form of FIR,Ext.58(1) is the signature of PW.31.
26. Ext.59 is the file relating to appointment of
Irregularity of teacher against the non-sanction
Posts.
27. Ext.60 is the list of irregular teachers appointed
against the non-sanction post with entire office
record.
28. Ext.61 is the register relating to Court cases Volume No.II seized by PW.31 (I.O) maintained in the office Of the D.I. of Schools, Dhemaji.
29. Ext.62 are the undertakings given by the teachers
Submitted in the D.I. office,Ext.62(A) are writing portion.
30. Ext.63 is the record of Civil Rule No.2223/95/
31. Ext.64 is the forwarding letter of CW.1 Sri Mridul Kr. Kalita, the then Jt. Registrar (Judl.II), Gauhati High Court.
Name of prosecution witnesses:
PW.1 Sri Rajani Phukan.
PW.2 Sri Kiriti Kamal Gogoi.
PW.3 Sri Prakash Bordolai.
PW.4 Sri Lalit Rajkhowa.
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PW.5 Sri Ashok Sharma.
PW.6 Sri Rajesh Kr. Sharma.
PW.7 Sri Babul Ch. Hazarika.
PW.8 Sri Lok Nath Gogoi.
PW.9 Sri Lukumoni Chutia.
PW.10 Sri Khargeswar Changmai.
PW.11 Sri Chandan Sarmah.
PW.12 Sri Anupam Deuri.
PW.13 Sri Surjya Chutia.
PW.14 Sri Debajyoti Baruah.
PW.15 Sri Bolin Lahon.
PW.16 Sri Sarat Ch. Hazarika.
PW.17 Sri Tarini Mohon Gogoi.
PW.18 Smti Aimoni Lahon.
PW.19 Sri Siva Dutta.
PW.20 Sri Hiranya Ch. Das.
PW.21 Sri Keshab Ch. Phukan.
PW.22 Sri Trailakya Nath Konwar.
PW.23 Sri Hemanta kr. Sarmah.
PW.24 Sri Dinesh Ch. Barman.
PW.25 Sri Mohendra Bharali.
PW.26 Sri Budheswar Boro.
PW.27 Sri Prasanta Chetia.
PW.28 Sri Hareswar Das.
PW.29 Sri Deben Konwar.
PW.30 Sri Nabab Imdad Hussain.
PW.31 Sri Jagadish Sarmah (I.O.)
CW.1 Sri Mridul Kr. Kalita.
NAME OF DEFENCE WITNESSES :
DW.1 Md. Kamal Hussain.
DW.2 Sri Haliram Chamua.
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DW.3 Sri Jogantar Deori.
DW.4 Sri Haren Ch. Kalita.
DW.5 Sri Nirmal Konwar.
DEFENCE EXHIBITS :
1. Ext.A is the letter vide Memo No. DEL/Esstt-DIS/2/89-90/3121-27 dtd.27.3.1990 .
2. Ext.B is the summon.
3. Ext.C is the transfer order of Kamala Sarma and Ratneswar Das vide memo No.DEL/Esstt.DIS/82/89-90/3121-27 dtd.27.3.90.
4. Ext.D is the release order of Kamala Sarmah vide memo No.E-1/88/2937-39 dtd.18.4.90 issued by DI of Schools, Dhemaji.
5. Ext.E is the Joining Report of Kamala Sarmah on 19.4.90.
6. Ext.F is the undertaking of Anupam Deori.
Special Judge, Assam.
Guwahati.