IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM AND ARUNACHAL PRADESH)

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM AND ARUNACHAL PRADESH) CRIMINAL APPEAL 98 OF 2010 Md. Abdur Rezzak Ahmed -Accused-appellant - Versus - The State of Assam - Opposite party BEFORE HON BLE MR. JUSTICE I. A. ANSARI Advocate present: For the appellent : Mr. P. Kataki, Mr. A. D. Laskar, Mrs. R. Begum For the respondent : Mr. K. A. Mazumdar, Addl. P. P., Assam. Date of judgment & hearing: JUDGMENT & ORDER (ORAL) By the judgment and order, dated , passed, in Special Case No. 80(A)/2001, by the learned Special Judge, Guwahati, Assam, the accused-appellant, namely, Abdur Rezzak Ahmed, stands convicted under Sections 120B and 409 of the Indian Penal Code (hereinafter referred to as the IPC ) and also under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988

2 Page No. 2 (in short, PC Act ). Pursuant to his conviction, he has been sentenced, for his conviction under Section 409, to undergo rigorous imprisonment for 2 (two) years and pay a fine of Rs. 5000/- and, in default of payment of fine, undergo rigorous imprisonment for 2 (two) months and also to undergo, for his conviction under Section 120B IPC, rigorous imprisonment for 2 (two) years and pay a fine of Rs. 5000/- and, in default, undergo rigorous imprisonment for 2 (two) months and, further, to undergo, for his conviction under Section 13(2) read with Section 13(1)(c) of the PC Act, rigorous imprisonment for 2 (two) years and pay a fine of Rs. 5000/- and, in default, undergo rigorous imprisonment for 2 (two) months, all the sentences having been directed to run concurrently. 2. The case of the prosecution may, in brief, be described as under: (i) A First Information Report (in short FIR ) was lodged, at Anti Corruption Branch Police Station, by one Chandra Kanta Kalita (PW2), an Inspector, Chief Minister s Special Vigilance Cell, Assam, alleging, inter-alia, that as per the report submitted by Deputy Superintendent of Police, Indeswar Bailung (PW10), on , while Abdur Rezzak Ahmed (i.e. the appellant herein),

3 Page No. 3 functioning as Superintendent, Town Milk Supply Scheme (in short, TMSS ) was transferred as Superintendent, TMSS, Khanapara, he could not hand over cash amount of Rs. 6,28,450/-, which was the cash balance as per the relevant cash book (Ext. 2) inasmuch as the cash balance, at the time of the handing over of the charge, was Rs. 10,62,040/-, but Abdur Rezzak Ahmed was able to hand over an amount of Rs. 4,34,390/- only with an assurance note in the cash book that he would repay the balance amount within sixty days. As the amount remained unpaid, Abdur Rezzak Ahmed shall be treated to have misappropriated the said amount of Rs. 6,28,450/- in connivance with Accountant, Bhagirath Kalita, and Cashier, Aminur Rahman, who had been maintaining the accounts of TMMS at the relevant point of time. (ii) During investigation, the cash book, in question, along with many other documents, were seized and chargesheet was laid against the 3 (three) accused persons aforementioned, namely, Abdur Rezzak Ahmed, Bhagirath Kalita and Aminur Rahman, under various penal provisions. 3. At the trial, when charges, under Sections 120B and Section 409 of the IPC and Section 13(2) read with Section

4 Page No. 4 13(1)(c) of the PC Act, were framed against the three accused persons named above, all of them pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 17(seventeen) witnesses. One more witness was examined by the Court as a court witness. The three accused persons, namely, Abdur Rezzak Ahmed, Bhagirath Kalita and Aminur Rahman, were, then, examined under Section 313 Cr.PC and, in their examinations aforementioned, they denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. The defence also adduced evidence by examining 1 (one) witness. 5. Having found accused Bhagirath Kalita and accused Aminur Rahman not guilty of the offences, which they had been charged with, the learned trial Court acquitted them accordingly. 6. Having, however, found accused Abdur Rezzak Ahmed guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentences against him as mentioned above. Aggrieved by the conviction and the sentences, which have

5 Page No. 5 been passed against him, accused Abdur Rezzak Ahmed, as a convicted person, has preferred this appeal. 7. I have heard Mr. P. Kataki, learned counsel for the accused-appellant. I have also heard Mr. K. A. Mazumdar, learned Addl. Public Prosecutor, Assam. 8. While considering the merit of this appeal, this Court is constrained to observe that, in the present case, the conduct of the trial and the conclusion, reached by the learned trial Court, on the basis of the evidence brought on record, disclose, to say the least, complete lack of knowledge of the law, relevant to the charges, which had been framed against the accused-appellant and his two coaccused, who already stand acquitted. 9. It is shocking to note that the cash book and the audit report along with many other documents, which were seized during the course of investigation, have been proved by the Seizing Officer and the witnesses, who were witness to the seizure of various documents. However, the contents of the documents, so seized, have not been proved at all. 10. As I proceed further, it would become transparent that though the learned trial Court has held the accused-

6 Page No. 6 appellant guilty of the offence, which he had been charged with, there was, logically speaking, not even a particle of substantive evidence, which could have justified the conviction of the accused-appellant. 11. To begin with, I may point out that PW1 (Prafulla Ch. Sarma) is the witness to the seizure of the report of the vigilance inquiry inasmuch as he has deposed that while functioning as an Inspector of Police, in the Chief Minister s Special Vigilance Cell, Assam, Mahendra Nath Saikia, Inspector of Police, Chief Minister s Special Vigilance Cell, re-seized, on , one original seizure list, dated , in connection with the Special Vigilance Cell Enquiry No. 55(9)86. He has clearly deposed, in his cross-examination, that he has no personal knowledge about the documents, which had been seized. 12. Obviously, this witness (PW1) had no knowledge about the Special Vigilance Enquiry, which had been conducted, nor was he acquainted with the entries in the cash book. No wonder, therefore, that he has very clearly stated that he has no personal knowledge about the documents seized by seizure list (Ext. 1). 13. Coming to PW2 (Chandra Kanta Kalita), I notice that he, on , was Inspector of Police in the Special

7 Page No. 7 Vigilance Cell and he was the one, who had lodged the FIR. This witness has, in no uncertain words, admitted, in his cross-examination, that he has no personal knowledge about the alleged offence meaning thereby that on the basis of the report, received by him, he has lodged the FIR, but he has no personal knowledge if the accused-appellant had entered into any criminal conspiracy with anyone or had misappropriated money belonging to the government. 14. So far as PW3 and PW5 are concerned, they have, admittedly, not given any incriminating evidence against the accused-appellant inasmuch as they were mainly witnesses to the seizure of the cash book and they had no personal knowledge as regards maintenance of the cash book. 15. The evidence of PW4, who is also an Officer of the Chief Minister s Special Vigilance Cell, stands on the same footing as do the evidence of other witnesses, whose evidence I have discussed above inasmuch as he has deposed, in clear terms, that he knows nothing about the present case and he had not even participated in the investigation of the case in any manner. 16. Though PW6 (Surendra Kr. Das), who had been working at TMSS, Khanapara, at the relevant point of time,

8 Page No. 8 proved Ext. 8 and Ext. 9, which are audit reports, he has very clearly deposed that he does not have personal knowledge about the correctness or veracity of Ext. 8 and Ext Thus, the evidence of PW6, too, does not help the prosecution in improving their case. 18. When I turn to the evidence of PW7, who is an employee of Veterinary Department, Government of Assam, I notice that he has also proved the seized documents, but he has conceded that except the factum of seizure of Ext. 12, he knows nothing about the facts of the present case. 19. The prosecution could not have, therefore, derived any strength from the evidence of PW7 nor could the evidence of PW7 have been made the basis for conviction of the accused-appellant. 20. The evidence of PW8, who is yet another employee of the Veterinary Department, Government of Assam, stands on no better footing inasmuch as he (PW8), too, was a witness to the seizure of some documents, but he had, according to his own evidence, no knowledge about the facts of the present case or about the inquiry.

9 Page No I, now, come to the evidence of PW9, a Sub-Inspector of Police at the Chief Minster s Vigilance Cell, and I notice that he, too, was a witness to the seizure of certain documents and he has, in clear terms, deposed that he knows nothing about the facts of the present case except the fact that the seizure of Ext. 1 was made at the time of investigation of the present case. 22. The evidence of PW9 does not, thus, add any value to the prosecution s case and to the set of evidence adduced at the trial. 23. As regards the evidence of PW10, who was, at some point of time, a Police Officer in the Chief Minster s Vigilance Cell, it may noted that this witness has deposed that he made an enquiry in the office of the Superintendent, TMSS, Khanapara, and seized some documents from the said office, the enquiry having been made against a number of employees of the said office, including the present appellant and, then, he submitted the enquiry report. However, this witness could not prove any document, which had been seized during enquiry. 24. The evidence of PW10 does not, therefore, lend any strength to the case of the prosecution. At best, he was an

10 Page No. 10 Enquiry Officer and mere proof of an enquiry report is not a proof of the materials contained therein. 25. In the case at hand, PW10 had no personal knowledge about the contents of the documents, seized by him, except the fact that he had seized the documents as it is apparent from the enquiry report. 26. Coming to the evidence of PW11, an employee of the Veterinary Department, Government of Assam, I notice that he, too, is a witness to the seizure of a number of documents, such as, letters, etc., and suffice it to point out that he has clearly deposed that he cannot say whether, at the time of handing over of the charge, the present appellant had handed over the cash balance or not and he has no personal knowledge about the documents, which he has proved. This witness also did not, thus, know if the present appellant had entered into a criminal conspiracy or had misappropriated the government fund or not. 27. When I read the evidence of PW12, who was an Auditor in the office of the Accountant General, Assam, I notice that though he has proved Ext. 8 and Ext. 9, which are audit reports, he has clearly deposed that he has no personal knowledge about the documents, which have been inspected by the Auditor in the present case, nor did

11 Page No. 11 he carry out any audit. By no means, therefore, the evidence of PW12 could have been treated as incriminating evidence against the accused-appellant. 28. Same is the state of affairs in the case of PW13, who, too, is from the office of the Accountant General, Assam. Notwithstanding the fact that he has proved the documents, he has clearly deposed that he has no personal knowledge about the documents, which were seized and have been proved. 29. Even the Investigating Officer (PW14) has clearly deposed that he does not know who had prepared Ext. 8 and Ext. 9, which are audit reports. His evidence cannot, admittedly, be said to have disclosed any misappropriation of money on the part of the appellant. 30. To add to the misery of the prosecution, PW15, a Police Officer from the Chief Minister s Special Vigilance Cell, has clearly deposed that he has no personal knowledge about the seizure of the documents. 31. So far as PW16, another Police Officer in the Chief Minister s Special Vigilance Cell, is concerned, he also deposed that he does not know why the Investigating Officer seized the documents, in question, and he does not

12 Page No. 12 know about the contents of the FIR and that he merely witnessed the seizure of the documents, because he put his signature on the seizure list. 32. Though PW17, an Audit Officer from the office of the Accountant General, has deposed that he had performed the test check audit in the TMSS Office, he has conceded, in his cross-examination, that he cannot say whether he was the one, who had prepared the audit reports (i.e., the Ext. 8 and Ext. 9) inasmuch as Ext. 8 and Ext. 9 are the inspection report, but he was not signatory thereto and he has no personal knowledge about the contents of Ext. 8 and Ext What emerges from the above discussions is that the prosecution has, in the present case, miserably failed to adduce evidence to show as to who had maintained the cash book, in question, far less proving, that, at the time of handing over the charge by the appellant, he had not given a sum of Rs. 6,28,450/- to the officer, who had relieved him. 34. Situated thus, it becomes abundantly clear that there was, as against the accused-appellant, no legally admissible and substantive evidence, which could have become the foundation for holding that there was criminal conspiracy for misappropriation of government money or that money

13 Page No. 13 belonging to the government was misappropriated by the accused-appellant. The conviction of the accused-appellant cannot, therefore, be suspended. 35. In the result and for the reason discussed above, this appeal is allowed. The impugned conviction of the accused-appellant and the sentences passed against him by the judgment and order, under appeal, are hereby set aside. The accused-appellant is held not guilty of the offences, which he stands convicted of and he is acquitted of the same. 36. Send back the LCR. 37. With the above observations and directions, this appeal stands disposed of. JUDGE Kalpana