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IN THE COURT OF SPECIAL JUDGE, ASSAM, GUWAHATI

Present : Sri Gautam Baruah, AJS, Special Judge, Assam, Guwahati.

SPECIAL CASE NO. 22(A)/2003

STATE OF ASSAMVS.

1. Sri Anador Doley2. Sri Prafulla Chetia, 3. Sri Thaneswar Baruah4. Sri Padmeswar Gogoi5. Sri Rajen Saikia,6. Sri Prahlad Gogoi

................. Accused Persons

Date of hearing : 03.02.2012, 19.03.2012, 29.05.2012, 19.06.2012, 26.07.2012, 14.09.2012, 15.09.2012, 15.09.2012, 06.10.2012, 19.12.2012, 05.01.2013, 18.01.2013,20.03.2013.

Date of statement of accused : 15.11.2012

Date of argument : 13.02.2014 Date of Judgment : 25.02.2014

Result : Acquitted

Advocates for prosecution : Sri Joginder Singh, Sr. Advocate Ld. Special P.P. for the State, Smti. Nabasmita Gogoi Ld. Addl. Special P.P. for the State

Advocates for accuseds : Sri S. K. Lahkar Sri D. Talukdar Ld. Advocates

J U D G M E N T

1. The prosecution case started rolling with the lodging of

an FIR on 26.03.1999 by one Sri Kamaleswar Dutta, Dy. S.P.,

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Vigilance & Anti Corruption, Assam, Guwahati interalia stating

that a regular enquiry bearing No. 44(9)97 was conducted and

during that enquiry it was found that (i) One Sri Prahlad

Gogoi, Head Pandit, Kawaimari LP School, Dhemaji district

incollusion with one Thaneswar Baruah, Center Secretary,

Dulimer LP Teacher's Center prepared false pay bill for the

month of October, November and December, 1999 in the

name of one Dhireswar Gogoi who had already retired from

service on 30.09.1996 as Head Pandit of Kawaimari LP

School and Sri Thaneswar Baruah drew an amount of Rs.

15634/- from Dhemaji Treasury vide bill Nos. 464 dtd.

31.10.96, 509 dtd. 30.11.96 and 579 dtd. 30.12.96 of Block

Elementary Education Officer office, Dhemaji and

misappropriated the same. However, the money was later

deposited to the Treasury by accused Thaneswar Baruah on

13.05.97 after fraudulently drawing the same on 30.10.96. (II)

Sri Prafulla Chetia, Center Secretary, No. 1 Maridol LP

Teacher's Center drew an amount of Rs. 42167.00 from

Dhemaji Treasury by preparing false house rent bill in the

name of 7 School Mistress vide bill No. 796 dtd. 11.4.97 of

BEEO office Dhemaji. It was also stated that Sri Prafulla

Chetia also drew an amount of Rs. 6000/- in excess vide bill

No. 806 dtd. 10.04.97 being the exgratia of the teacher of the

Center and misappropriated the same. On receipt of

complaint from the School Mistress Anadar Doley, BEEO,

Dhemaji issued notice to Prafulla Chetia to refund the money

and on receipt of the notice Prafulla Chetia deposited the

money in Dhemaji Treasury vide challan Nos. 58 dtd. 5.11.97,

227 dtd. 17.11.97, 103 dtd. 5.12.97, 154 dtd. 11.12.97 and

vide challan No. 299 dtd. 16.5.97. (III) Sri Anadar Doley,

BEEO, Dhemaji has passed the above noted false bills. Sri

Kamaleswar Dutta, the informant as such prayed the O/C,

V&AC to take necessary action against the above named

accused persons.

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2. After receipt of the FIR Vigilance & Anti Corruption PS,

Assam registered ACB PS Case No. 1/99 u/s 409/468/420

IPC r/w Sec. 13(1)(c)/13(2) PC Act, 1988 and investigated

into.

3. After completion of investigation and after obtaining

necessary prosecution sanctions the I/O Farzan Ali Laskar,

DSP, V&AC filed chargesheet against accused Anadar Doley,

Prahlad Gogoi, Thaneswar Baruah, Prafulla Chetia,

Padmeswar Gogoi and Rajen Saikia u/s 409/471/120(B) IPC

r/w Sec. 13(1)/13(2) of PC Act, 1988.

4. In due course of time the accused persons have

appeared before this court and copies were furnished to the

accused persons and after hearing both sides my Ld.

Predecessor framed charge against the accused persons

namely Prafulla Chetia, Rajen Saikia and Anadar Doley for

misappropriation of Rs. 42,167.00 and Rs. 6000.00 u/s

120(B)/471/409 IPC r/w Sec. 13(1)(c)/13(2) PC Act. My Ld.

predecessor also framed separate charge against accused

persons namely Prahlad Gogi, Rajen Saikia, Anadar Doley

and Thaneswar Baruah u/s 120(B)/471/409 IPC r/w sec. 13(1)

(c)/13(2) PC Act for misappropriation of Rs. 15,634/- and also

framed charge against accused persons namely Padmeswar

Gogoi, Rajen Saikia and Anadar Doley u/s 120(B)/471/409

IPC r/w Sec. 13(1)(c)/13(2) PC Act for misappropriating Rs.

6000/- as excess exgratia. The charges were readover and

explained to the accused persons to which they pleaded not

guilty and claimed to be tried.

5. The prosecution in order to prove the charges against

the accused persons has examined as many as 13 Nos of

witnesses. The defence has also examined as many as 5 Nos

of defence witnesses. I have heard the argument put forward

by both sides and also carefully gone through the entire

record and the evidence brought into the record both oral and

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documentary by both sides. I have also carefully gone through

the exhibits.

6. POINTS FOR DETERMINATION :

(i) Whether during the month of April, 1997 accuseds

Prafulla Chetia, Rajen Saikia and Anadar Doley being the

public servants entered into a criminal conspiracy to prepare

false house rent bills of 7 school mistress amounting to Rs.

42,167/- and false exgratia bill amounting to Rs. 6000/- and

used the forged false bills as genuine and thereby passed

those bills through the Treasury and misappropriated the said

amount of Rs. 42,167/- and Rs. 6000/- and thereby committed

an offence punishable u/s 120(B)/471/409 IPC r/w sec. 13(1)

(c)/13(2) PC Act?

(ii) Whether the accuseds Prahlad Gogoi, Rajen Saikia,

Thaneswar Baruah and Anadar Doley being public servants

during the period from October, 1996 to December, 1996

entered into a criminal conspiracy to prepare and submit false

bills in respect of retired Headmaster Dhireswar Gogoi to

fraudulently drew an amount of Rs. 15634/- and whether the

accuseds used forged bills as genuine and by passing the

bills through the Treasury misappropriated the said amount of

Rs. 15,634/- and thereby committed an offence punishable

u/s 120(B)/471/409 IPC r/w sec. 13(1)(c)/13(2) PC Act ?

(iii) Whether the accuseds Padmeswar Gogoi, Rajen Saikia

and Anadar Doley being public servants during the period

April 1997 entered into a criminal conspiracy to prepare and

drew false bills amounting to Rs. 17000/- including Rs. 6000/-

excess being the exgratia of school teachers and used the

false bills as genuine and passing the said bills through the

Govt Treasury withdrawn the excess amount of Rs. 6000/-

and misappropriated the same and thereby committed an

offence punishable u/s 120(B)/471/409 IPC r/w sec. 13(1)

(c)/13(2) PC Act?

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7. DECISIONS, DISCUSSIONS AND REASON THEREOF

:-

The prosecution in order to bring home the charges

against the accused persons has examined altogether 13

Nos of witnesses. Out of these 13 Nos of witnesses 6 Nos of

witnesses namely PW-1 Smti. Niru Chetia, PW-2 Smti Kabita

Gogoi, PW-3 Smti Ghunusa Devi, PW-7 Smti Chenimai

Gogoi, PW-9 Smti Anima Dutta and PW-10 Smti Rangila

Chetia are the 6 Nos of school teachers whose house rent

bills are allegedly been falsely prepared for an amount of Rs.

42167/- and misappropriated by the accused persons.

8. PW-4 Prabat Baruah, PW-5 Deben Duwara are the

seizure witnesses. PW-8 Kamaleswar Dutta is the Enquiry

Officer who conducted Regular Enquiry No. 44(9)97 against

the accused persons. PW-11 Dharmeswar Gogoi and PW-12

Farzan Ali Laskar are the I/Os of the case. PW-6, Hemanta

Kr. Sarma and PW-13 Paramesh Dutta are the concerned

officers who accorded the prosecution sanction against the

accused persons.

9. PW- 1 Smti. Niru Chetia in her evidence deposed that in

October 1989 she joined as Asstt. Teacher, Barphukan LP

School, Maridal, District Dhemaji and since after joining she

has been drawing house rent every months. She deposed

that accused Prafulla Chetia was the Center Secretary of

several schools of that area and pay bills of teachers are

prepared by the Center Secretary. She deposed that in 1997

she came to know that arrear house rent in her name from the

period from August, 1989 to February 1992 has been drawn

by the Center Secretary Prafulla Chetia and after drawal of

the same was not given to her as she was not entitled to get

the same. She also deposed that accused Prafulla Chetia has

also drawn arrear house rent of her colleagues namely Kabita

Gogoi, Ghunusa Devi, Rangila Chetia, Niru Hazarika and

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Anima Dutta. She also deposed that after preparation of the

bills the Center Secretary submitted the same to ASI of school

and thereafter the bills were passed by BEEO. She also

deposed that when the school authority did not take any steps

regarding the withdrawal they informed the matter to Dy.

Commissioner, Dhemaji. In her cross PW-1 deposed that her

husband Suran Baruah is also a government employee and

initially they both used to draw house rent. Thereafter govt

stopped this practice and allowed only one of the spouse to

draw the house rent. However, later government allowed both

the spouse to draw the house rent again. She also stated in

cross that she has not seen the complaint given to the Dy.

Commissioner and BEEO, Dhemaji in the case record. She

also stated that she has not seen the bills prepared by the

accused Prafulla Chetia in the record. She also stated in

cross that copies of treasury challans in respect of refunded

house rent was given to them.

10. PW-2 Smti Kabita Gogoi and PW-3 Ghunusa Devi also

stated in the same line as of PW-1 and deposed that during

that period Prafulla Chetia was the Center Secretary of that

area and he used to prepare the bills and in 1997 they came

to know that arrear house rent in respect of 7 teachers

including them for the period 1998 to 1992 has been drawn by

accused Prafulla Chetia. The have stated that they first

informed the matter BEEO Anadar Doley who initially denied

the withdrawal the such amount and thereafter they informed

the matter to Dy. Commissioner, Dhemaji. They have stated

that an amount of Rs. 42,000/- has been withdrawn as arrear

by the accused Prafulla Chetia. During their cross they have

admitted that both of their husbands were government

employees as of PW-1 and they both husband and wife used

to draw house rent initially. Thereafter govt stopped this

practice and then allowed only one spouse to draw the house

rent and later government allowed both the spouse to draw

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the house rent. They have stated that the written complaint

submitted to the Deputy Commissioner and BEEO, Dhemaji

are not found in the case record. They have stated that they

have not seen the bills prepared by accused Prafulla Chetia.

11. PW-7 Smti Chenimai Gogoi deposed that in 1999 she

was serving as Asstt. Teacher in Khajua Block LP School

under Dhemaji PS and at that time Prafulla Chetia was their

Center Secretary. She stated that their bills were prepared by

their Headmaster then handed over to Center Secretary for

submitting to the BEEO office for onward submission to

Treasury office for payment. She stated that after collecting

the salary from the Treasury office/bank the Center Secretary

used to distribute their pay. She stated that Niru Chetia,

Ghunusa Devi also get house rent like her. She stated that

accused Prafulla Chetia used to collect their salary and other

allowances from the bank. In her examination in chief she

also stated that she later got the arrear house rent for about

two years.

12. PW-9 Smti Anima Dutta and PW-10 Smti Rangila Chetia

deposed that they were both working as Asstt. Teacher in

Naharani LP School and their colleagues Niru Chetia,

Ghunusa Devi, Kabita Gogoi and Niru Hazarika were serving

in different schools under the same Center being No. 1

Moridal Center. Both deposed that in 1997 they came to know

that their house rent along with the other 5 teachers named

above were withdrawn by Center Secretary Prafulla Chetia

without their knowledge. They also stated that thereafter they

made a complaint before the BEEO, Dhemaji with copies to

the Dy. Commissioner, Dhemaji and D/I of schools, Dehmaji

and on the basis of their complaint accused Prafulla Chetia

was directed to refund the house rent. Both PW-9 and PW-10

identified M. Exts. 8 as the copy of their complaint petition and

M Exts. 8(1) and 8(2) are the fecimal of the signatures

namely Smti Anima Dutta and Smti Rangila Chetia

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respectively. PW-10 Smti Rangila Chetia also deposed that at

that time Anadar Doley was the BEEO. In their cross they

have stated that their arrear house rent was wrongly drawn by

accused Prafulla Chetia and after when complaint was made

he refund the same to the Treasury.

13. While appreciating the evidence of PW-1, PW-2, PW-3,

PW-7, PW-9 and PW-10 conjointly we found that during the

period between August, 1989 to February, 1992 the above

named PWs were serving as teachers/ assistant teachers in

different schools under the Moridal Center in the district of

Dhemaji. It also comes into record that at that time accused

Prafulla Chetia was the Center Secretary of the said Center

and at that time accused Anadar Doley was the BEEO. From

their evidences it also appears that in 1997 the above named

witnesses came to know that their arrear house rent for the

period between August, 1989 to February, 1992 was

withdrawn by the Center Secretary Prafulla Chetia without

their knowledge and after coming to know about the same

they complained the same before the BEEO, Anadar Doley

and also informed the then Dy. Commissioner, Dhemaji and

on being asked by the authority accused Prafulla Chetia has

returned the house rent to the Dhemaji Treasury. The

deposition of above named witnesses has brought into the

record the fact that the accused Prafulla Chetia being the

Center Secretary of that particular center in 1997 has

withdrawn house rent for the period from August, 1989 to

February, 1992 of those 6 Nos of teachers amounting to Rs.

42,000/-. It was also brought into the record that at that time

accused Anadar Doley was the BEEO of that area.

14. It is to be kept in mind that charge has been framed

against the accused persons u/s 120(B)/471/409 IPC and u/s

12(1)(c)/13(2) PC Act. To bring home the charges under the

above provisions of law the prosecution must prove that there

was meeting of mind between the accused persons and that

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they have used false bills as genuine and thereafter by

misusing their official positions have misappropriated arrear

house rent of the above named school teachers.

15. PW-4 Sri Prabat Baruah who is the seizure witness has

been declared hostile by the prosecution. In his deposition

PW-4 deposed that on 11.05.1999 while he was serving as

Peon in the office of the BEEO, Dhemaji, police seized six

documents on being produced by Anadar Doley who was the

BEEO vide seizure list Ext. 1 and he identified his signature

as Ext. 1(1). He has specifically denied about the contents of

that documents. He also stated in cross that he put his

signature in Ext. 1 without knowing its contents.

16. PW-5 Sri Deben Duwara is also a seizure witness who

has been declared hostile by the prosecution. He stated in his

deposition that on 20.4.99 while serving as Peon in the office

of the BEEO, Dhemaji accused Anadar Doley was serving as

BEEO. He stated that police has obtained his signature in Ext.

3 and he put his signature without knowing the contents of the

same. In cross examination by the defence he stated that

except putting the signature he has not stated anything before

the police. In his cross by the Special P.P. he has denied the

fact that police seized 15 Nos of documents vide Ext. 3. He

also denied that on 20.04.1999 police seized treasury challan,

transit register No. 1 of Moridal LPC and Dalimar LPC for

1996-97, bill register of BEEO office, Dhemaji, Payment

registers of Moridal and Dalimar LPCs in BEEO office,

Dhemaji in his presence. He also denied that as office Peon

he knew that Thaneswar Baruah, Center Secretary of Dalimar

Center has drawn three months pay of Dhireswar Gogoi,

Headmaster, Kawaimari LPC, who retired on 31.08.1996 and

Prafulla Chetia had drawn Rs. 41,000/- falsely as arrear

house rent of 6 school teachers and Rs. 6000/- in excess was

refunded.

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17. While appreciating the evidence of PW-4 it is found that

prosecution has only been able to prove the seizure list Ext. 1.

The contents of the documents in respect of seizure list Ext. 1

has not been proved. PW-5 though admitted his signature in

seizure list as Ext. 3(1) but has denied the seizure of the 15

Nos of documents by the police vide Ext. 3. The seizure of

the above documents vide Ext. 3 as such has not been

proved beyond doubt.

18. PW-8 Sri Kamaleswar Dutta, retired Additional S.P.,

V&AC deposed that on 4.9.97 while he was serving as

DSP,V&AC he was endorsed Regular Enquiry No. 44(9)97

against accused Anadar Doley, BEEO, Dhemaji. He deposed

that the allegation against the accused was that he incollusion

with Center Secretary and in-charge Head Pandit drew salary

of a retired teacher Dhireswar Gogoi for the month of October,

1996 to December 1996 amounting to Rs. 15634/- from

Dhemaji Treasury. He deposed that another allegation against

the accused Anadar Doley was that he incollusion with

Thaneswar Baruah, Center Secretary drew an amount of Rs.

15634/- and incollusion with Prafulla Chetia drew an amount

of Rs. 42,167/- and bill of Rs. 6000/-. He deposed that for the

purpose of enquiry he has gone though the concerned bill

submitted to Dhemaji Treasury and later came to know that

after 3/4 months the concerned Center Secretary through

BEEO Anadar Doley has refunded the drawal amounts to the

Treasury. He stated that on completion of enquiry he

submitted his report to Superintendent of Police, ACB PS and

Ext. 4 is the said report and Ext. 4(1) is his signature. He also

submitted that the Superintendent of Police referred the

matter to the Govt and after receipt of Govt approval he

lodged the FIR against Anadar Doley, Thaneswar Baruah,

Prahlad Gogoi and Prafulla Chetia which was registered as

ACB PS Case No. 1/99. He identified the FIR as Ext. 5 and

Ext. 5(1) is his signature. He stated that during enquiry he did

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not seize any documents. In his cross he deposed that during

enquiry he interrogated some of the officials but he did not

record their statement. He denied the suggestion that he did

not make the enquiry properly and lodged the FIR without any

basis.

19. PW-11 Sri Dharmeswar Gogoi, retired DSP deposed

that on 26.03.99 while he was serving as Inspector of Police

V&AC the Superintendent of Police endorsed him ACB PS

case No. 1/99 for investigation and on 20.04.99 he seized the

following documents :-(1) Triplicate copy of Treasury Challan

No.299 dated 16.5.1997 for refunding excess Rs.6000/-

drawn in bill No.806 dated 10.4.1997 as exgratia by the

Secretary No. 1 Maridhal L Panchayat Center (M. Ext.1),

(2) Original Treasury Challan No.227 dated 15.11.1997 for

refund of excess drawal in house rent by Sri Prafulla Chetia.

(M.Ext.10), (3) Quadruplicate copy of Treasury Challan

No.103 dated 5.12.1997 for recovery of excess drawn in HR

bill No.796 and TB No.1222 dated 11.4.1997 by Sri Prafulla

Chetia Ex -Secretary of No.1 Maridal LP School (M. Ext.11),

(4) Origianl Treasury Challan No.154 dated 11.12.1997 for

recovery in HR bill No.796 and TB No.1222 dated 11.4.1997

at Maridal LP School Center by Sri Prafulla Chetia. Ex

-Secretary of No.1 Maridal LP School, (M. Ext.12), (5)

Original Treasury Challan No.58 dated 5.11.1997 for recovery

of cash drawn in HR bill No.796 TB No.1222 dated 11.4.1997

of No.1 Maridal LP School Center of Prafulla Chetia Ex

-Secretary of No.1 (M.Ext.13). (6) Original Treasury Challan

No. 206 dated 13.5.1997 for recovery of excess drawn

against bill No.2164 dated 31.10.1996 bill No.509 dated

30.11.1996 and 575 dated 30.12.1996 by Thaneswar Barua,

Dolimari LP School Center(M.Ext.14). (7) Original petition of

Sri Prafulla Chetia, Head Pondit Barphukan LP School to

BEEO to grant HR arrear w.e.f 1.8.1989 to 29.2.1992 to Mr.

Niru Hazarika alongwith 6 others with remarks on the petition

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by the BEEO directing Saikia to check out and to put up in

note sheet in detailed (M.Ext.15). (8) Office order

No.BEEO/DMJ/17/641 dated 21.8.1997 from the BEEO

Dhemaji to Prfaulla Chetia to refund the arrear HR drawn in

excess vide his earlier order No.BEEO/DMJ/17/461-462 dated

25.5.1997(M.Ext.16). (9) Office order No.BEEO/DMJ/17/495-

97 dated 12.5.1997 from BEEO Anador Doley Dhemaji to

Prafulla Chetia No.1 Maridal LP School Center to refund

Rs.6000/- which was drawn in excess in exgratia bill by

13.5.1997 (M.Ext.17). (10) Transit registrar of No.1 Maridhal

LPC for the year 1996-97 (M.Ext.18). (11) Transit registrar of

Dhalimari LPC for the year 1996-97 (M.Ext.19). (12) Payment

registrar of Maridhal LPC for the year 1996-97 (M.Ext.20).

(13) Payment registrar of Dhalimari LPC for the year 1996-97

(M.Ext.21). (14) Bill registrar of BEEO, Dhemaji for the year

April 1996 to 22.7.1998. (15) Letter No.BEEO/DMJ/16/33/933

dated 22.08.1996 to Sri Direswar Gogoi Headmaster

Kowaimari LP School (M.Ext.22). Ext.3 is the said seizure list

and Ext.3(2) is his signature. He stated that on 22.4.1999 he

seized the following documents from the BEEO Anador Doley

(1) One petition (photostat copy) to BEEO Dhemaji submitted

by Smti Anima Dutta alongwith 5 others Asstt. teachers of LP

School regarding drawal of HR arrear of them by submitting

false HR arrear bills by Sri Prafulla Chetia No.1 Maridhal LPC

with the official order of BEEO dated 15.5.1997 to Chetia to

put up notice to pay the amount by 18.5.1997 (M. Ext.8) (2)

Supporting pay bill of Kawaimari LP school for the month of

November and December 1996 with signatures of Prahlad

Gogoi HM of Kawaimari LP School and Anador Doley BEEO

(M.Ext.23 & 23(1)). He identified Ext.6 as the said seizure list,

Ext. 6(1) as his signature, Ext.6(2) is the signature of accused

Anador Doley and Ext.6(3) as the signature of witness Dilip

Gohain.

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20. PW-11 has also stated that on 18.06.1999 he seized the

following documents on being produced by Anadar Doley,

BEEO. (1) Original Treasury Challan No.324 dated

30.08.1997 showing refund of Rs.6000/-(six thousand) by Sri

Pademswar Gogoi Secretary Lague Bora LPC while was

drawn excess in Ex Gratia bill No.300 dated 17.4.1997 from

BEEO Dhemaji (M Ext. 3), (2) Office order No.

BEEO/DMJ/16/41/8801-04 dtd. 10.05.1996 appointing Sri

Padmeswar Gogoi Asstt. Teacher, Lakhtakia LP School as

Centre Secretary of LaguaBora LPC (M Ext. 4). He identified

Ext. 2 as the said seizure list, Ext. 2(2) as his signature, Ext.

2(3) as the signature of accused Anadar Doley, BEEO, Ext.

2(4) as the signature of Padmeswar Gogoi.

21. PW-11 further stated that on 11.05.1999 he seized the

following documents on being produced by Anadar Doley,

DEEO. These are :- (1) Appointment order of Sri Prafulla

Chetia, Headmaster of Barphukar LP School as Centre

Secretary of No. 1 Maridal LPC for the year 1996-97 vide

memo No. BEEO/DMJ/16/41/8873-76 dtd. 27.5.96 (M Ext.

24), (2) Appointment order of Thaneswar Baruah,

Headmaster Chengmai LP School as Centre Secretary of

Dalkimari LP C for the year 1996-97 vide memo No.

BEEO/DMJ/8839-43 dt. 18.5.96 (M Ext. 25), (3) Notice vide

memo No. BEEO/DMJ/17/461-62 dtd. 28.5.97 to Sri Prafulla

Chetia, Centre Secretary No. 1 Maridal LP C to refund Rs.

42,167/- drawn as House rent arrear within 1.6.97 by the

BEEO Dhemaji (M Ext. 26), (4) Office copy of order of BEEO

Dhemaji to 7 school mistress to submit arrear HR bill for the

year 1.1.89 to 29.2.92 (M Ext. 27), (5) Supporting bill of

Kawaimari LP School for the month of October 1996 for Rs.

10206/- with signature of Sri Prahlad Gogoi and the BEEO

Anadar Doley (M Ext. 28), (6) Payment Register of No. 1

Maridal LP Centre opf Aragula Circle for the year 1997-98

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from page No. 1 to 464 (M Ext. 1). Ext. 1 is the said seizure

list, Ext. 1(2) is his signature.

22. During cross PW-11 stated that he simply seized those

documents vide Exts. 1, 2, 3 and 6 but did not investigate

regarding its contents. In cross he further stated that he did

not examine any witness regarding the seized documents and

he has mentioned in his chief about the seized documents as

per description in seizure list.

23. PW-12 Farzan Ali Laskar deposed that on 4.5.2000

while he was serving as DSP, V&AC he was endorsed to

investigate the case and after taking up the case he received

the case diary submitted by his predecessor Sri D. Gogoi. He

also stated that seizure of documents and examination of

witnesses were done by his predecessor. He deposed that

after perusal of the case diary he found that investigation has

almost been completed and during his part of investigation he

only moved to AG office, Assam to seize the original bills, but

the AG office informed that the original bills could not be

traced as the same are misplaced. He stated that he moved

for prosecution sanction from competent authorities and after

receiving the prosecution sanction he has filed the

chargesheet against the accused persons namely Anadar

Doley, Rajen Saikia, Prafulla Chetia, Prahlad Gogoi,

Padmeswar Gogoi and Thaneswar Baruah u/s

120(B)/409/471 IPC r/w section 13(1)(c)/13(2) PC Act vide

Ext. 7. He identified his signature as Ext. 7(1). During his

cross he deposed that he did not examine any witness nor

seized any document. He stated that he simply filed the

chargesheet.

24. PW-6 Sri Hemanta Kr. Sarma and PW-13 Sri Parameswar

Dutta during their evidence have deposed that they have

accorded prosecution sanction against the accused persons

after going through the ejahar and relevant documents and

after applying their own mind. They have exhibited M. Ext. 5

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as the prosecution sanction against accused Rajen Saikia and

M Ext. 6 as the prosecution sanction in respect of accused

Prafulla Chetia, Prahlad Gogoi, Padmeswar Gogoi and

Thaneswar Baruah and Ext. 8 as the prosecution sanction

against the accused Anadar Doley. The evidence of PW-6

and PW-13 disclosed that they have simply accorded the

prosecution sanction after perusing the records and applying

their mind against the accused persons.

25. While appreciating the evidence of PW-8 Kamaleswar Dutta

we found that during the course of regular enquiry No.

44(9)97 he has enquired against the allegation brought out by

the above named 6 Nos of school teachers aginst the acused

Prafulla Chetia and Anadar Doley along with some other

allegations. However, admittedly during his cross examination

has stated that during enquiry he has not recorded the

statement of witnesses which he interrogated during enquiry.

He also stated that though he examined some documents,

after examination he returned the documents to the Treasury

Office, Dhemaji and to the office of the BEEO, Bordoloni,

Dhemaji. He did not seize any document. In such situation it

has become very difficult for the Court to come to the

conclusion on the basis of whose statement and on the basis

of which documents PW-8 Kamaleswar Dutta prepared the

Enquiry Report, Ext. 4. It further appears that on the basis of

the regular enquiry FIR was submitted and investigated into.

26. When we appreciate the evidence of PW-11

Dharmeswar Gogoi and PW-12 Farzan Ali Laskar the

Investigating Officer (I/Os) of this case we found that the I/O

PW-11 Dharmeswar Gogoi in his cross stated that though he

has seized several documents during his investigation he has

not investigated regarding the contents of those documents.

He also did not examine any witness regarding the seized

documents which he seized vide Ext. 1, 2, 3 & 6. On the other

hand, PW-12 the other I/O deposed that he has not seized

16

any document nor he examined any witness. He simply filed

the chargesheet. The statement of both the I/Os appears to

be contradictory regarding the examination of witnesses. The

I/O PW-11 in cross stated that he did not examine any

witness regarding the seized documents. The other I/O PW-

12 also stated that he also did not examine any witness

during investigation. PW-12 deposed that PW-11 D. Gogoi

was his predecessor regarding investigation of the case. Now

it becomes difficult to understand who has recorded the

statement of witnesses u/s 161 CrPC in such a

circumstances when both the I/Os have denied recording of

the statement of witnesses.

27. The I/O PW-11 during investigation has seized a

number of documents which has also been exhibited in this

case as M. Exts. 9 to 28. However, none of the witnesses

have stated anything regarding the contents of those

documents. The contents of those documents have not been

lawfully proved. Unless and until the contents of documents

are brought into record the same can not be considered as

evidence by the court. In this case charge has been framed

against the accused persons separately for separate

offences. Charge against accused Prafulla Chetia, Rajen

Saikia and Anadar Doley has been framed for

misappropriation of the arrear house rent of Rs. 42167/- and

another Rs. 6000/- as excess exgratia bills, charge has been

framed against the accuseds Prahlad Gogoi, Rajen Saikia,

Anadar Doley and Thaneswar Baruah for fraudulently

withdrawal and misappropriation of Rs. 15634/- by submitting

three months false salary bill of retired Headmaster Dhireswar

Gogoi and charge has been framed against accuseds

Padmaeswar Gogoi, Rajen Saikia and Anadar Doley for

withdrawal Rs. 17,000/- which includes Rs. 6000/- as excess

exgratia of school teachers and for misappropriating the

same.

17

28. While discussing the above evidence of witnesses it is

found that the witnesses have not stated anything regarding

the misappropriation of Rs. 15634/- as well as the

misappropriation of the excess Rs. 6000/- of the exgratia of

school teachers. The witnesses PW-1, PW-2, PW-3, PW-7,

PW-9 and PW-10 have only stated against the accused

Prafulla Chetia for withdrawing Rs. 42,000/- as arrear house

rent for the period of 1989 to 1992 and misappropriating the

same and they have also stated that at that time Anadar

Doley was the BEEO. In this regard charges were framed

against the above named accused Prafulla Chetia and

Anadar Doley with another accused Rajen Saikia u/s

120(B)/471/409 IPC r/w sec. 13(1)(c)/13(2) PC Act. Perusal of

evidence reveals that none of the witnesses has said anything

against accused Rajen Saikia. As the allegation against the

above named accused persons were misappropriation of

money by preparing false house rent bills and using the same

as genuine and thereby misappropriating the same by

abusing their official position the prosecution must prove the

documents which were forged by the accused persons and

used as genuine by them.

29. In this case while appreciating the evidence of PW-5

Deben Duwara it is found that he has denied the seizure of 15

Nos of documents by the police in his presence vide Ext. 3.

On the other hand, the I/O PW-11 D. Gogoi during his

examination in chief has stated that he has seized the original

petition by which Prafulla Chetia, Center Secretary wrote to

the BEEO Anadar Doley to release the HR area of the 7 Nos

of school teachers for the period from 1.8.1989 to 29.2.1992.

PW-11 further deposed that he has seized the office order

dtd. 21.8.1997 of BEEO, Dhemaji directing Prafulla Chetia to

refund the arear house rent drawn by him. The I/O further

deposed that he has seized the 4 Nos of Treasury challan by

18

which Prafulla Chetia has refunded the house rent drawn by

him in 4 installments.

30. It is the requirement of law that the contents of the

documents are to be proved by the maker of the documents

or by any other persons who has acquaintance with the

contents of the said documents. In the instant case PW-4 and

PW-5 seizure witnesses have denied the seizing of those

documents in his present. PW-11 the I/O in his cross

examination has also stated that he did not examine any

witness regarding the seized documents and also he did not

investigate as to the contents of the documents. This

evidence of the I/O shows that the prosecution has not made

any endevour to prove the contents of the said documents. As

the allegation was that false bills were prepared and used as

genuine the prosecution ought to have proved the

documents/bills which were forged by exhibiting the same,

who has prepared those documents / bills and under whose

signatures and handwritings those bills were passed as

required u/s 67 of Indian Evidence Act. Section 67 of the

Indian Evidence Act, 1872 states that if a document is alleged

to be signed or to have been written wholly or any part by any

person, the signature or the handwriting of so much of the

document as is alleged to be in that person's handwriting

must be proved to be in his handwriting. In the instant case

the prosecution has not exhibited any bills showing the same

as falsely prepared by accused Prafulla Chetia. The

prosecution has also not adduced any evidence to show that

the bills were prepared by the accused Prafulla Chetia or that

bills were passed under the signature of Prafulla Chetia or

under the signature of accused Anadar Doley, the then

BEEO. As such the allegation of preparing false bills and

passing the same as genuine remain not proved.

31. Ld. Special P. P. in course of argument has argued that

accused Prafulla Chetia vide M Ext. 15 dtd. 19.03.1997 has

19

prayed the BEEO, Dhemaji, Anadar Doley to release the

arrear house rent of 7 Nos of schools teachers for the period

from 1.8.89 to 29.2.92. The Ld. Spl. P.P. also submitted that

vide M Ext. 16 dtd. 21.8.97 accused Prafulla Chetia was

directed to refund the arrear house rent which he drew in

respect of the above school teachers. It was further submitted

that the accused Prafulla Chetia vide treasury challan Nos.

227 dtd. 15.11.97 (M Ext. 10), No. 103 dtd. 5.12.97 (M Ext.

11), No. 154 dtd. 11.12.1997 (M Ext. 12) and No. 58 dtd.

5.11.97 (M Ext. 13) has refunded a total amount of Rs.

42164/- of the house rent to the government treasury in 4

installments. The Ld. Special P.P. submitted that had the

accused Prafulla Chetia not misappropriated the said arrear

house rent he would not have refunded the same in

government treasury in installments. On the other hand, Ld.

defence counsel has submitted that any documents seized by

the I/O during investigation has to be proved as per procedure

of law. It is submitted that unless the contents of the

documents are proved by the maker of the documents or by

any other person acquainted with the documents the said can

not be accepted in evidence.

32. I have carefully gone through above mentioned M.

Exhibits and also gone through the evidence given by the

witnesses regarding the said M. Exhibits. PW-4 Prabat

Baruah and PW-5 Deben Duwara who were the seizure

witnesses in respect of the M Exts. were declared hostile by

the prosecution. They have denied the contents of the said

documents and also PW-5 denied the seizure of the said

documents. The I/O of this case PW-11 Dharmeswar Gogoi

who in his examination in chief stated that he had seized the

above mentioned M. Exhibits on being produced by accused

Anadar Doley, but during his cross has he stated that he

simply seized the documents and he did not investigate

regarding the contents of the documents. He also stated in

20

cross that he did not examine any witness regarding the

seized documents. The another I/O PW-12 Farzan Ali Laskar

during cross has stated that he did not examine any witness

and also did not seize any documents. From the above it

appears that the witnesses have not stated anything

regarding the contents of the M. Exhibits. The I/O also did not

take any step to investigate regarding the contents of the

documents nor examined any witness who are acquainted

with the contents of those documents.

33. The perusal of the record as well as the documents so

reveals that the I/O did not take any step to find out under

whose handwritings and signatures those above mentioned

M. Exhibits were prepared and submitted. I/O did not take any

steps to send those documents to FSL to examine the

handwritings or the signatures as to whether the same

belongs to the accused persons or not. In such event it is not

possible to come to a clear conclusion that the accused

Prafulla Chetia or Anadar Doley has written those documents

or passed those documents under their signatures.

34. From the above discussions and the available evidence

which has been brought into the record it is found that

prosecution has not been able to prove the charge against the

accused persons viz Anadar Doley, Prafulla Chetia and Rajen

Saikia in respect of criminal conspiracy to misappropriate the

arrear house rent of Rs. 42167.00 and subsequently

misappropriating the same by abusing their official position.

The evidence further discloses that the prosecution could not

bring into the record any material regarding the other

allegations for which charge has been framed against the

other accused persons namely Thaneswar Baruah,

Padmeswar Gogoi and Prahlad Gogoi.

35. It is the principle of criminal jurisprudence that the

prosecution case must stand on his own legs. It is the duty of

21

the prosecution to prove the charge brought against the

accused persons beyond all reasonable doubt. In this case as

appears from the foregoing discussions it is clear that the

prosecution could not bring home the charges against the

accused persons and as such I do not find it necessary to

discuss the evidence of defence witnesses in this case.

36. In view of the above discussions I am constrained to

hold that the prosecution has failed to bring home the

charges against the accused persons. Accordingly all the

accused persons namely Anadar Doley, Prafulla Chetia,

Padmeswar Gogoi, Prahlad Gogoi, Rajen Saikia and

Thaneswar Baruah are acquitted from all the charges. The

bail bonds of the accused persons are shall remain in force

for next six months as per provisions of section 437(A) CrPC.

The seized documents which have been seized by the I/O

during investigation by various MRs. be returned to the

concerned authority in due course of law.

37. Before parting with the judgment it is desirable to bring

into record the indifferent attitude of the Investigating officers

regarding the investigation. The Investigating Officers did not

examine any witness from the concerned office who has

acquaintance with the contents of the seized documents.

More surprisingly the Investigating Officers, who are senior

police officers, did not send the seized documents to the

Forensic Science Laboratory (FSL) to ascertain the

handwriting and signatures appearing in the seized

documents though the specific allegation in the FIR was

regarding false preparation of bills and using as genuine the

false bills and thereby misappropriating the Government

money. In this case the perfunctory nature of investigation has

cost the prosecution dearly. In my view, time has come to

make the Investigating Officers accountable for any

22

perfunctory investigation which is apparent on the face of the

record. It is desirable that the Investigating Agency will take

note of the matter.

Case is disposed of accordingly.

Given under my hand and seal of this 25th Day of

February, 2014.

Dictated and corrected by me.

Special Judge, Assam, Special Judge, Assam, Guwahati. Guwahati.

23

AP P E N D I X

Exhibited by the Prosecution.

1. Ext. 1 Seizure list2. Ext. 2 Seizure list3. Ext. 3 Seizure list4. Ext. 4 Enquiry Report5. Ext. 5 FIR6. M. Ext. 1, 20, 21 Payment Registered7. M. Ext. 2 Supporting bill8. M. Ext. 3, 7, 9 , 19, 11 to 14 Treasury challan9. M. Ext. 4 Officer order 10. M. Ext. 5 , 6 Sanction order11. M. Ext. 8, 15, 16, 17 Petition 12. M. Ext. 18, 19 Transit Book13. M. Ext. 22 Letter for retirement14. M. Ext. 23, 23(1) Bill15. M. Ext. 24, 25 to 27 Letter given by A. Doley 16. M. Ext. 28 Bill

Special Judge, Assam, Guwahati.