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IN THE COURT OF SPECIAL JUDGE, ASSAM, GUWAHATI

Present : Sri A. Bhattacharyya, AJS, Special Judge, Assam, Guwahati.

SPECIAL CASE NO. 6/2014(Arising out of Dispur PS Case No. 1284/1998u/s 7 of Prevention of Corruption Act, 1988)

STATE OF ASSAMVS.

Sri Padma Ram Talukder ................. Accused Person

Date of hearing : 18.12.2014, 20.01.2015, 10.02.2015, 03.03.2015, 25.03.2015, 27.04.2015,15.06.2015.

Date of statement of accused : 27.04.2015 & 02.07.2015

Date of argument : 20.07.2015 Date of Judgment : 31.07.2015

Result : Acquittal

Advocate for prosecution : Smti. Nabasmita Gogoi Ld. Addl. Special P.P. for the State

Advocate for accused : Sri Pulin Goswami. Ld. Advocate

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J U D G M E N T

1. Sri Dilip Kr. Das the then Executive Magistrate, Kamrup, Guwahati vide an ejhar dtd. 22nd December, 1998 states that today i.e. on 22nd December, 1998 at about 10 AM on being informed by Sri S.K. Roy, ADC, Kamrup he reached Dispur Police Station at about 10.30 AM in connection with a trap to be laid against an employee namely Sri Padma Ram Talukder, UDA of the office of the Director, Elementary Education, Assam, Kahilipara, Guwhati-19 for his alleged demand of gratification from one Anupam Borkakati arranging him to offer a post of ME School teacher. Accordingly he alongwith Sri Abu Sufian,DSP, Dispur Division, Sri B.D. Sarma, SI, Dispur Police Station and Sri Anupam Borkakati proceeded towards the office of the Director, Elementary Education, Assam, Kahilipara, Guwahati with 4 bundles of 10 rupee notes denomination, each bundle containing Rs. 1000/- with a view to trap Sri Padma Ram Talukder. Sri Anupam Borkakati on being asked the amount of Rs. 45,000/- by Sri Padma Ram Talukder offered him the bundles numbering 4 of amounting to Rs. 4000/- in his office chamber. At that moment they entered into the office chamber and on being searched his pocket by SI Sri Sarma found 4 bundles of Rs. 10 denomination which were signed by him earlier. The search and seizure were made in presence of independent witnesses and he was arrested by the police. Thus the occasion of filing the ejhar.

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2. The Dispur police station on registration of a case took up the investigation and on completion of the investigation submitted the chargeseheet against the accused u/s 7 of PC Act.

3. On the appearance of the accused charge u/s 7 of P.C Act was framed. The charge so framed, was readover, explained and interpreted to the accused to which he pleaded not guilty.

4. During trial the prosecution side after examining as many as 7 PWs closed their side. One CW is also examined. Statement of accused is recorded u/s 313 CrPC. The accused did not adduce the DW. I have heard the arguments of the case from both the parties.

5. NOW THE POINT FOR DETERMINATION IN THIS

CASE WILL BE :

As to whether the materials so far surfaced in the testimonies of the PWs and CW are sufficient to attract the ingredients of Section 7 of PC Act and thereby the accused is liable to be convicted u/s 7 of PC Act or not ?

6. DECISION AND REASON THEREOF :-

To address the aforesaid point for determination perusal of evidences on record is necessary. So, let us have a look at the entire evidences on record.

7. PW- 1 Sri Dilip Kr. Das during trial and in his examination in chief states as follows : On 22.12.1998 he was serving as Circle Officer in the Dispur Revenue Circle,

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Guwahati. On that day the then ADC Sri S.K. Roy have informed him that one UDA Sri Padmaram Talukdar of the office of the Director, Elementary Education, Assam, Kahilipara demanded illegal gratification from one Anupam Barkakati of Margerita for giving him a job of ME school teacher and the ADC asked him to trap the accused. Thereafter he reached the Dispur police station at around 10.30 AM and thereafter he alongwith the then DSP Abu Sufian, S/I B.D. Sarma and the complainant Anupam Barkakati went to the office of the Director, Elementary Education. Anupam Barkakati stated that the accused demanded Rs. 45,000/- for the job of teacher. On that day complainant Anupam Barkakati was carrying 4 bundles of 10 rupee denomination totaling Rs. 4000/- and he has put his initial on 4 notes of each bundle totaling 16 Nos. After reaching the office of the Director, Elementary Education the complainant went inside the room of the accused and they were waiting outside and on being demanded by the accused the complainant handed over the 4 bundles of 10 rupee notes to the said UDA. After some time of handing over the money they went inside the room and the police personal accompanied them searched the pocket of the UDA Padmaram Talukdar and recovered the 4 bundles of 10 rupee denominations totaling 4000/- from his possession. Thereafter the police seized the said 4 bundles of 10 rupee denominations in his presence and in presence of other witnesses. After the incident he has lodged the FIR before

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the O/C Dispur police station on that day. Ext. 1 is the said FIR wherein Ext. 1(1) is his signature. M Exts. 1, 2, 3 & 4 are the said 4 bundles of 10 rupee denominations which are seen today in the court. M Exts. 1(1) to 1(4), M Ext. 2(1) to 2(4), M Exts. 3(1) to 3(4) and M Exts. 4(1) to 4(4) are his signatures.

8. During cross-examination the PW-1 being the informant stated that at the time of handing over the money by the complainant to the accused they were waiting outside the room of the accused.

9. On a minute perusal of the testimonies of the PW-1 it appears that the PW-1 is the witness of the recovery of the tainted money from the possession of the accused, but he did neither witness the handing over the money to the accused by the complainant nor he witnessed that the accused voluntarily accepted the tainted money in question from the complainant.

10. PW-2 Sri Anupam Borkakari is the complainant, who during trial and in his examination in chief states as follows : In the year 1997 he has appeared in an interview for ME School Teacher. At that time he was working in a Venture School at Margerita and regarding that school he used to go to the office of the Elementary Education, Kahilipara where he met one Padmaram Talukdar, UDA of that office. Said Padmaram Talukdar asked him to give Rs. 45,000/- for providing him teacher job. At that time he has no such amount, so he has asked for the money from his brother Dr.

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Rupam Borkakati. His brother informed that when he will come to Guwahati he will give the money. On 22.12.1998 he came to Guwahati and at that time his brother came to Guwahati for his own official work at AG office. Thereafter they went to the office of the Dy. Commissioner, and his brother discussed the matter with the DC, then the DC called one Executive Magistrate, accordingly Magistrate came, thereafter they gave 4 bundles of 10 rupee notes to the Magistrate who put his initials in the first two and last two notes of the each bundles and returned back the same to him. Thereafter from the DC office one DSP Abu Sufian of Dispur PS was called, and then alongwith Magistrate and DSP with police team went to the office of the Elementary Education, Kahilipara. After reaching there he went inside the office and met Padmaram Talukdar. Thereafter Padmaram Talukdar asked him whether he has brought the money, he stated that he could not arrange all the money but he has arranged some of the demanded money, and accordingly he handed over the money to him and when he was about to keep the same in his drawer of the table the Executive Magistrate and Police Officer caught him redhanded. Thereafter the accused was arrested and the money was also seized and brought to the Dispur PS. M Ext. 1 to 4 are the four bundles of 10 rupee notes which are seen in the court today. M Exts. 1(1) to 1(4), 2(1) to 2(4), 3(1) to 3(4) and 4(1) to 4(4) are the signatures of the said

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Magistrate. Accused Padmaram Talukdar is present in the court today.

11. During cross-examination the PW-2 stated that the demand made by the accused was not informed to the D. C by himself and it was informed by his elder brother.

12. On a minute perusal of the testimonies of the PW-2 it appears that PW-2 had implicated the accused with the allegation of demand so also acceptance of bribe given by him to the accused.

13. PW-3 Sri Ganesh Ch. Deka during trial and in his examination in chief states as follows : On 22.12.98 he went to the office of the Elementary Education at Kahilipara to meet a person whose name he has forgotten, but he was nearby the person when police came and seized a packet containing some money and police asked him to put his signature in the seizure list as a witness and he has put his signature in the said seizure list Ext. 2 wherein Ext. 2(1) is his signature.

14. During cross examination the PW-3 stated that he had not seen the contents of the packet seized by police, but it was informed to him that it contains some money. Before putting his signature in Ext. 2 he had not gone through the same and he had seen the packet in the hands of police person before putting his signature in the seizure list.

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15. A. perusal of his testimonies would show that being the seizure list witness the PW-3 did not support the story of seizure set forth by the prosecution.

16. PW-4 Sri Pradip Konwar during trial and in his examination in chief states as follows : On 22.12.1998 he was serving as Typist in the office of the Directorate of Elementary Education, Assam, Kahilipara. He know accused Padmaram Talukdar as he was one of the employee of their office. He and accused Padmaram Talukdar used to sit in the same room in the office. On the day of occurrence when he was busy with his typing work some persons entered into the room and talked with Padmaram Talukdar and thereafter the persons told him that they are taking out Padmaram Talukdar with them and asked him to put one signature in a paper and accordingly he has put his signature as Ext. 2(2).

17. During cross-examination the PW-4 stated that he does not know the contents of Ext. 2 where he had put his signature.

18. From a perusal of testimonies of PW-4, who was an employee of the DPI office, Kahilipara it is seen that he was also the witness of seizure list, but he did not support the story of seizure.

19. PW-5 Md. Abu Sufian during trial and in his examination in chief states as follows : He was serving as DSP, Dispur Division from 29.4.97 to 31.12.98. On 22.12.98 one Anupam Borkakati of Tinsukia district came to the O/C

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Dispur Police station informing that he has earlier appeared in an interview of ME school teacher and one UDA of the office of the Director, Elementary Education, Assam, Kahilipara demanding gratification of Rs. 45,000/- to enable him to get the job. Thereafter the O/C informed the matter to the Superintendent of Police, who in turn contacted with the ADC Mr. S.K. Roy, who in turn instructed Circle Officer of Dispur Revenue Circle Sri Dilip Kr. Das to lay a trap with the help of police. As he was the DSP of Dispur Division at that time the O/C informed the matter to him and at that time he was present in the police station and as the case is of P.C. Act a gazetted officer has to investigate the case, so he accompanied the Executive Magistrate Dilip Kr. Das. The Executive Magistrate Dilip Kr. Das and the complainant Anupam Borkakati came to the Dispur PS and Anupam Borkakati gave 4 bundles of 10 rupee denomination notes to the Executive Magistrate who put his initials at first two notes and last two notes of each bundles. Thereafter he accompanied by complainant Anupam Borkakati, Executive Magistrate Dilip Kr. Das and S/I B.D. Sarma together went to the office of the Director, Elementary Education and they were waiting out side. Thereafter complainant Anupam Borkakati went inside the office of the Director of Elementary Education and after delivering the bundles to one UDA Padmaram Talukdar, who earlier demanded the gratification came out and informed them about the delivery of the bundles. Thereafter he alongwith the Executive

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Magistrate and S/I went inside the premises and searched the body of Padmaram Talukdar and recovered 4 bundles of 10 rupee notes wrapped in a paper from the pocket of Padmaram Talukdar in presence of witnesses, and thereafter he by preparing a seizure list seized 4 bundles of 10 rupee notes in presence of witnesses vide seizure list Ext. 2 wherein Ext. 2(3) is his signature. Accused Padmaram Talukdar also put his signature in the seizure list as Ext. 2(4). Thereafter he recorded the statement of complainant and the seizure witnesses namely Anupam Borkakati, Ganesh Ch. Deka, Pradip Konwar and Lachit Basumatary. After returning to the PS the Executive Magistrate Dilip Kr. Das lodged the formal FIR and he also recorded his statement. He has also taken the accused in custody from the place of occurrence and he has also recorded his statement in the police station. After registering the case by the O/C, Dispur PS as per instruction of the Superintendent of Police he was endorsed with the investigation of the case. He also forwarded the accused to the judicial custody and thereafter as he got transferred on 31.12.98 he could not complete the remaining part of the investigation, so he handed over the case diary to the O/C, Dispur PS. After getting the FIR the then O/C Ujjal Baruah registered the case as Dispur PS case No. 1284/98 u/s 7 of PC Act dtd. 22.12.98. Ext. 1 is the FIR wherein Ext. 1(2) is the signature of O/C Ujjal Baruah. Ext. 3 is the printed form of FIR wherein Ext. 3(1) is the signature of Ujjal Baruah, O/C, Dispur PS. Today in

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the court he has seen the 4 bundles of 10 rupee denomination notes which he seized vide seizure list Ext. 2 along with 16 nos of 10 rupee denomination notes with the initials with dates of the then Executive Magistrate Dilip Kr. Das.

20. During cross-examination the said PW stated that he had not personally seen the delivery of money by the complainant to the accused.

21. PW-6 Sri Uddav Ch. Das stated during trial in his examination in chief as follows : On 04.06.2014 he was serving in the capacity of Director of Elementary Education under Govt. of Assam. While he was working in the aforesaid capacity he received a letter dtd. 17.04.2014 written by the then Senior Superintendent of Police, City alongwith some enclosures whereby the Senior Superintendent of Police, City sought prosecution sanction against accused Padma Ram Talukdar. On perusal of the aforesaid annexures, petition he was satisfied to accord prosecution sanction against the aforesaid accused, and accordingly he accorded the prosecution sanction against accused Padma Ram Talukdar. Ext 4 is the aforesaid prosecution sanction order wherein Ext. 4(1) is his signature.

22. PW-7 Sri Suprative Lal Baruah during trial and in his examination-in-chief states as follows : On 18.01.2013 while he was serving as DSP, Dispur Division he was entrusted with the investigation of this case. It needs to be mentioned here that the case was investigated into by his predecessor

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Mr. Debasis Bara, DSP. On being entrusted with the investigation he perused the C.D. On perusal of CD he found that substantial portion of the investigation was completed by his predecessor I/O. Only the prosecution sanction was yet to be obtained. Therefore he prayed before the concerned authority for prosecution sanction. Accordingly the concerned authority accorded the prosecution sanction. He collected the prosecution sanction under Ext. 4 and finally at the conclusion of the investigation he laid the chargesheet. Ext. 5 is the chargesheet wherein Ext. 5(1) is his signature. So these are all about the evidences of PWs.

23. One CW namely Sri Biren Ch. Deka was examined in order to exhibit the GD entry in question. During trial the aforesaid CW-1 states as follows - This court directed him to bring the GD Entry No. 1210 dtd. 22.12.98. I check up the materials available of the police station but he could not trace out the GD Entry No. 1210 dtd. 22.12.98 within the available record of police station. Therefore he submitted a report. Ext. X is his report wherein Ext. X(1) is his signature. However, during verification of the record he found photo copy of the aforesaid GD Entry in the CD. I certified it and submit before this court. Ext. Y is the said xerox copy of the GD entry wherein Ext. Y(1) is his signature as the certifying official. So these are all evidences on record.

24. On a minute perusal of entire evidences on record it appears that the accused at the relevant point of time was working in the capacity of UDA in the office of the Director,

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Elementary Education, Kahilipara, Guwhati. As per allegation of the complainant (PW-2) the accused had demanded a sum of Rs. 45,000/- from the complainant Anupam Borkakati to give a job in school. Anupam Borkakati informed the matter to his elder brother, who had informed the matter to the then D.C., Kamrup and accordingly an arrangement to lay the trap was prepared by the Dy. Commissioner and in pursuance of the said arrangement on the date in question some money signed by PW-1 was handed over to the accused by the complainant (PW-2). Thereafter as per plan of the said trap the tainted money were allegedly recovered from the possession of the accused. So far allegation of demand is concerned it was allegedly made by the accused before the complainant Anupam Borkakati (PW-2), who informed the matter to his elder brother and the said elder brother informed the matter to the then Dy. Commissioner, Kamrup. So it is very much clear that the complainant Anupam Borkakti did not apprise about the demand directly to the Dy. Commissioner. Under this circumstances the then Dy. Commissioner and elder brother of the complainant Anupam Borkakti would have been the vital witnesses, but the prosecution side did neither cite them as witnesses nor they were examined during trial by the prosecution.

25. This apart at the very initial stage of the trap the then ADC had also played an important role, but the aforesaid ADC namely Sri S. K. Roy was neither cited as witness nor

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examined by the prosecution during trial. Further it is clear from the testimonies of the PW-1, PW-5 and PW-7 a trap was laid before the accused, but no memorandum as to the post trap or pre trap was prepared during investigation of the case.

26. The evidences of PW-1 would show that he is the witness of recovery of the tainted money from the possession of the accused only. He did not witness the delivery of the same to the accused nor the accused demand of money made by.

27. PW-2 Anupam Borkakti is the complainant, who has implicated the accused with the offence alleged of. PW-3 Ganesh Ch. Deka being the seizure witness did not support the story of seizure of the prosecution. PW-4 Pradip Konwar being the another seizure witness had also not supported the story of seizure of the prosecution. PW-5 Md. Abu Sufian being the I/O of the case has supported the story of recovery of the tainted money from the possession of the accused, but he had not personally seen the delivery of the money by the informant to the accused. PW-6 Uddav Ch. Das being the sanctioning authority has exhibited the sanction and the defence was furnished ample opportunity to cross-examine the sanctioning authority. PW-7 Suprative Lal Baruah being the I/O, who laid the chargesheet and the CW-1 Biren Ch. Deka during trial exhibited the GD entry in question under Ext. Y, which is a xerox copy.

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28. Now on a minute perusal of the entire evidences on record it is revealed that herein this case so far demand of bribe and so also its voluntary acceptance are concerned PW-2 i.e. the complainant is the only witness, whose solitary testimonies had not been corroborated by any witness. So it is to be examined as to how far the solitary evidence of PW-2 can be relied on with a view to convict the accused under the offence alleged of.

29. In this regard the essential ingredients of Section 7 of PC Act have been narrated by the Hon'ble Apex Court of the country n the following manner in a decided case law i.e. A. Subair v. State of Kerala (2209) 6 SCC 587. The relevant para of the aforesaid judicial authority is reproduced herein

below- “13. The essential ingredients of Section 7 are :

(i) that the person accepting the gratification should be

a public servant; (ii) that he should accept the

gratification for himself and the gratification should be

as a motive or reward for doing or forbearing to do any

official act or for showing or forbearing to show, in the

exercise of his official function, favour or disfavour to

any person.”

30. Further the observation of Hon'ble Apex Court of the country in B. Jayraj Vs. State of A.P (2014) CriLJ SC 2433 is pertinent and the said observation under para no. 7 is

reproduced herein below : “7. In so far as the offence

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Under Section 7 is concerned, it is a settled position in

law that demand of illegal gratification is sige qua non

to constitute the said offence and mere recovery of

currency notes can not constitute the offence Under

Section 7 unless it is proved beyond all reasonable

doubt that the accused voluntarily accepted the money

knowing it to be a bribe. The above position has been

succinctly laid down in several judgments of this Court.

By way of illustration reference may be made to the

decision in C.M. Sharma v. State of A.P., (2010) 15 SCC

1 and C.M. Girish Babu v. C.B.I., (2009) 3 SCC 779”. Also the Hon'ble Apex Court of the country in regard to the aforesaid aspect observed in Mukut Bihari and others v. State of Rajasthan (AIR) 2012 SC 2270 under para no. 11 in

the following manner : “11. The law on the issue is well

settled that demand of illegal gratification is sine qua

non for constituting an offence under the Act 1988.

Mere recovery of tainted money is not sufficient to

convict the accused, when the substantive evidence in

the case is not reliable, unless there is evidence to

prove payment of bribe or to show that the money was

taken voluntarily as bribe. Mere receipt of amount by

the accused is not sufficient to fasten the guilt, in the

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absence of any evidence with regard to demand and

acceptance of the amount as illegal gratification, but

the burden rests on the accused to displace the

statutory presumption raised under Section 20 of the

Act 1988, by bringing on record evidence, either direct

or circumstantial, to establish with reasonable

probability, that the money was accepted by him, other

than as a motive or reward as the court is required to

consider the explanation offered by the accused, if any,

only on the touchstone of preponderance if probability

and not on the touchstone of proof beyond all

reasonable doubt. However, before the accused is

called upon to explain as to how the amount in

question was found in his possession, the foundational

facts must be established by the prosecution. The

complainant is an interested and partisan witness

concerned with the success of the trap and his

evidence must be tested in the same way as that of

any other interested witness and in a proper case the

court may look for independent corroboration before

convicting the accused person. (Vide : Ram Prakash

Arora v. The State of Punjab AIR 1973 SC 498; Panalal

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Damodar Rathi v. State of Maharashtra AIR 1979 SC

1191; Suraj Mal v. The State (Dlehi Admn.) AIR 1979 SC

1408; Smt. Meena Balwant Hemke v. State of

Maharashtra AIR 2000 SC 3377; T. Subramanian v. The

State of T.N. AIR 2006 SC 836; A. Subair v. State of

Kerela (2009) 6 SCC 587; State of Maharashtra V.

Dnyaneshwar Laxman Rao Wankhede (2009) 15 SC 200;

C.M. Girish Babu v. CBI, Cochin, High Court of Kjerela,

AIR 2009 SC 2022; and State of Kerela and Anr. v. C.P.

Rao (2011) 6 SCC 450)”.

31. Now on a careful scanning of the testimonies of the complainant in the light of the aforesaid judicial authorities it is found as follows :

(a) Herein this case the the Dy. Commissioner, Kamrup, the then ADC, Kamrup MR. S.K. Roy and the elder brother of the complainant (PW-2) were vital witnesses as they were involved in the preparation trap laid by the investigating agency before the accused, but they were not cited as the witnesses nor examined by the prosecution. Why they were not examined or not cited as the witnesses is not explained during trial satisfactorily by the prosecution;

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(b) The demand of bribe made by the accused was not informed to the Dy. Commissioner by thecomplainant himself; (c) So far demand of bribe and its voluntary acceptance by the accused are concerned the story of the complainant was not corroborated by any witness;(d) No pre-trap or post-trap memorandums were prepared by the investigating agency during investigation; (e) Herein this case two independent persons namely Ganesh Ch. Deka (PW-3) and Pradip Konwar (PW-4) were asked to witness the seizure and the aforesaid persons put their signatures in the seizure list, but during trial they did not support the story of seizure of the prosecution.

32. For the aforesaid reasons it is felt difficult to rely the complainant (PW-2) to convict the accused under the offence alleged of. Thus under the aforesaid premises it is felt that the evidences so far surfaced are not sufficient to bring home the ingredients of the offences alleged of beyond all reasonable doubt and as such due to insufficiency of evidences the accused is entitled to get the benefit of doubt. Accordingly on benefit of doubt the accused is acquitted and set at liberty forthwith. His bail bond stands discharged.

Seized money be confiscated to the State.

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The case is disposed of accordingly.

Given under my hand and seal of this Court on this 31st day of July, 2015.

Dictated and corrected by me.

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

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A P P E N D I X

Exhibited by Prosecution :

(1) Ext. 1- FIR(2) Ext. 2- Seizure list(3) Ext. 3 – Printed form of FIR(4) Ext. 4- Prosecution sanction(5) Ext. 5- Chargesheet(6) M Exts. 1 to 4 – 4 bundles of currency notes(7) Ext. X – Report of Biren Deka, O/C Dispur PS(8) Ext. Y – Xerox copy of GD Entry.

Special Judge, Assam Guwahati.