High Court
Case Details
Crl.A. 122/2005 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI By the judgment and order, dated 29.03.2005, passed, in Special Case No. 91/2004, by the learned Special Judge, Assam, the accused-appellant, namely, Mu kti Nath Borthakur and Sanjib Kr. Sarkar, stand convicted under Sections 120B, 4 68, 471 and 420 of the Indian Penal Code (hereinafter referred to as the ’IPC’), and sentenced (i) to undergo, for their conviction under Section 120B IPC, rigo rous imprisonment for 6 (six) months; (ii) to undergo, for their conviction, und er Section 468 IPC, rigorous imprisonment for 1 (one) year and pay fine of Rs. 1 ,000/- each, and, in default of payment of fine, suffer simple imprisonment for 15 (fifteen) days; (iii) to undergo, for their conviction, under Section 471 IPC , rigorous imprisonment for 1 (one) year and pay fine of Rs. 500/- each, and, in default of payment of fine, suffer simple imprisonment for a period of 10 (ten) days; and (iv) to suffer, for their conviction, under Section 420 IPC, rigorous imprisonment for 1 (one) year and pay fine of Rs.1,000/- each and, in default o f payment of fine, suffer simple imprisonment for 15 (fifteen) days. The accuse d-appellant, namely, Mukti Nath Borthakur, has also been convicted, by the impug ned judgment and order, under Section 13(1)(d) read with Section 13(2) of the Pr evention of Corruption Act, 1988 (hereinafter referred to as ’the PC Act, 1988) and, consequent upon his conviction, he has been further sentenced to suffer rig orous imprisonment for 1 (one) year and pay fine of Rs. 1,000/- and, in default of payment of fine, suffer simple imprisonment for 15 (fifteen) days with direct ion that in the case of both the accused-appellants, the sentences shall run con currently. 2. described as under: The case of the prosecution, as emerged at the trial, may, in brief, be
Legal Reasoning
(i) Sri B. Chawngthuama was the District Manager, Food Corporation of In dia (in short, ’FCI’), Nagaon, with Mukti Nath Borthakur (hereinafter referred t o as M. N. Borthakur), as Assistant Manager (Accounts), FCI, Nagaon, and Abdul J abbar (since acquitted) as Cashier, at the FCI Office, Nagaon, had entered into a criminal conspiracy with accused Anil Chandra Paul (since deceased), a busines sman of Hojai, and accused Sanjib Kr. Sarkar, an employee of Anil Ch. Pal. Purs uant to the criminal conspiracy, which was so entered into, accused Sanjib Kr. S arkar submitted two false and fictitious transport reimbursement bills, amountin g, in all, to Rs. 67,577/-, for having allegedly transported rice from the FCI’s Depots, at Hojai, to the Godown M/s Socheng Large Size Multipurpose Cooperative Limited (in short, Socheng LSMCL), Socheng, which falls in the district of Karb i Anglong. The said bills were fraudulently entertained by the accused employees of the FCI and passed for payment through open account cheques, one cheque bein g in the name of Sri B. Kalita and the other cheque being in the name of Sri B. Bokolial, who were claimed to be employees of Socheng LSMCL. The bills aforemen tioned were passed, as indicated hereinbefore, and the two cheques, one in the n ame of B. Kalita, and the other, in the name of B. Bokolial, were issued, on 15. 11.1984 and 29.11.1984, respectively, though neither B Kalita nor B Bokolial was ever employees of Socheng LAMPS. The cheques, so prepared, and issued by the F CI, were received by the accused, Sanjib Kumar Sarkar and credited into the acco unt of accused Anil Ch. Pal, who encashed the said cheques. With these facts, a First Information Report (in short, ’FIR’) was lodged, on 31.10.1999, by Sri S. K. Saikia, the then Superintendent of Police, CBI, Anti Corruption Branch, Shil long, who, upon investigation, found that out of the three accused persons, name ly, Sri B. Chawngthuama, Sri MN Borthakur and Abdul Jabbar, two of them, namely, accused MN Borthakur and Abdul Jabbar had entered into a criminal conspiracy wi th accused Sanjib Kr. Sarkar and accused Anil Chandra Paul and that pursuant to the criminal conspiracy, so entered into, accused Sanjib Kr. Sarkar had prepared and submitted two false and fictitious transport reimbursement bills, amounting , in all, to Rs. 67,577/-, in the name of Sri B. Kalita and Sri B. Bokolial, two non-existent persons, the bills having been passed by M. N. Borthakur, (i.e., t he appellant herein), Assistant Manager (Accounts), FCI, and, then, based on the bills, cheques were prepared by accused Abdul Jabbar and the same were received by Sanjib Kr. Sarkar and deposited in the account of accused Anil Chandra Paul. By following the modus operendi, as indicated hereinbefore, the cheques were e ncashed. (ii) Having completed their investigations, the CBI submitted charge-sheet for p rosecution of accused M. N. Borthakur, accused Abdul Jabbar (since acquitted) an d accused Sanjib Kr. Sarkar, under Section 120B, 420, 468 and 471 IPC, with an a dditional charge, under Section 13(1)(d) read with Section 13(2) of the PC Act, 1988, against accused MN Borthakur and accused Abdul Jabbar. So far as accused Anil Chandra Paul is concerned, he died before the completion of the investigat ion of the accused. 3. At the trial, charges, under Sections 120B, 420, 468 and 471 IPC were fr amed against the three accused, namely, M. N. Borthakur, Abdul Jabbar and Sanjib Kr. Sarkar inasmuch as accused Anil Ch. Paul had, in the meanwhile, died. In addition thereto, a charge was also framed, under Section 13(1)(d) read with Sec tion 13(2) of the PC Act, 1988, against accused M. N. Borthakur and accused Abdu l Jabbar. All the three accused pleaded not guilty to their respective charges. 4. In support of their case, prosecution examined altogether 33 (thirty-thr ee) witnesses. The three accused persons, namely, M. N. Borthakur, Abdul Jabbar and Sanjib Kr. Sarkar, were, then, examined under Section 313(1)(b) Cr.PC and, in their examinations aforementioned, they denied that they had committed the of fences, which were alleged to have been committed by them, the case of the defen ce being that of denial. The defence also adduced evidence by examining 4 (four) witness.
Legal Reasoning
Having found accused Abdul Jabbar not guilty of the charges, framed agai 5. nst him, the learned trial Court acquitted him accordingly. Having, however, fo und accused M. N. Borthakur and accused Sanjib Kr. Sarkar guilty of the offences , which they stood charged with, the learned trial Court convicted them accordin gly and passed sentences against them as mentioned above. Aggrieved by their con viction and the sentences, which have been passed against them, the two accused persons, namely, M. N. Borthakur and Sanjib Kr. Sarkar, have preferred these app eals. As against the acquittal of accused Abdul Jabbar, no appeal has been prefe rred by the State. 6. I have heard Mr. A. R. Sikdar, learned counsel for the accused-appellan t, M. N. Borthakur, and Mr. D. Talukdar, learned counsel for the accused-appella nt, Sanjib Kr. Sarkar. I have also heard Mr. P. N. Choudhury, learned Standing counsel, CBI, appearing on behalf of the respondents. 7. Because of the fact that both these appeals have arisen out of one judgm ent and order, dated 29.03.2005, which stand impugned in these two appeals, both the appeals have been heard together and the same are being disposed of by this common judgment and order. While considering the present appeals, following facts, as discernible f 8. rom the materials on record and which have not been disputed, may be taken note of. (i) During the relevant period, B. Chawngthuama (PW33) was the District Manager, FCI, Nagaon, accused Abdul Jabbar was the cashier at the said office and the ac cused-appellant, M. N. Borthakur, was Assistant Manager, (Accounts) there. The s aid office of the FCI received two bills, which were raised seeking reimbursemen t of the expenses incurred for transporting the FCI’s goods from the FCI’s godow n, at Hojai, to the godown of Socheng LSMCL, at Kherani, Karbi Anglong, Ext. 6 and Ext. 7 being the said two bills. While B. Kalita, purportedly an employee of Socheng LSMCL, was authorized to receive the cheque, in respect of one of the bills, B. Bokolial, who was also projected as an employee of Socheng LSMCL, was authorized to receive the cheque in respect of the other bill. (ii) On the investigation being made, it was, however, found that neither B. Kal ita nor B. Bokolial, were employees of Socheng LSMCL. Thus, the bills, which we re raised seeking payments in the name of B. Kalita and B. Bokolial, were false and fictitious, the two bills being Ext. 6 and Ext. 7. Both the bills were pass ed by accused-appellant, M. N. Borthakur, and, on the basis of said two bills pa ssed by the accused-appellant, MN Borthakur, Sri B Chawngthuama, District Manage r, FCI, Nagaon, cleared the bills. Cheques were, then, accordingly issued, and, on being allowed, the cheques were allegedly received by Sanjib Kr. Sarkar and p ut into the bank account of Anil Ch. Paul (since deceased) and, in course of tim e, the money was realized and the cheques were, thus, encashed. (iii) Coupled with the above, while accused-appellant, Sanjib Kumar Sarkar, deni ed and disputed the fact that he had prepared or raised the bills, in question, and/or received the cheques or helped in encashment thereof, accused-appellant, M. N. Borthakur, did not deny and dispute the fact that he had passed the bills and the cheques, having been prepared by accused Abdul Jabbar (since acquitted), on the basis of the said two bills, which had been passed, the cheques were pur portedly received by the said B. Kalita and B. Bokolial. 9. The case of the accused-appellant, MN Borthakur, has, however, been that based on the verification of the two bills, in question, i.e., Exts. 6 and 7, c arried out by his subordinates in the Account Section, he had cleared the bills. In this regard, the case of the defence is that it was PW2 (Pulin Bora), who ha d already checked the bills before the accused-appellant, MN Borthakur, had pass ed the bills. 10. Apart from the fact that PW2 has denied that he had ever checked and pas sed the bills, in question, it needs to be pointed out that a careful perusal of the two bills, in question, namely, Exts. 6 and 7, clearly shows that the said two bills were not checked or verified by anyone other than the accused-appellan t, MN Borthakur, and, then, on the said bills having been cleared by the then Di strict Manager, FCI, Nagaon, Sri B Bokolial (PW33), accused Abdul Jabbar (since acquitted) had prepared the cheques, which were signed by the competent authorit y and handed over to the so-called representatives of Socheng LSMCL. 11. What has also surfaced from the evidence on record is that the accused-a ppellant, MN Borthakur, wrote to the then District Manager (PW3) to expedite the process of clearing the bills and making of the payments thereof. Why the accu sed-appellant, MN Borthakur, took such a keen interest in the subject-matter of clearance of the two bills has not been explained by the accused-appellant, MN B orthakur, nor is any explanation discernible, in this regard, from the materials on record. The learned trial Court has, therefore, correctly pointed out that MN Bo 12. rthakur, the then Assistant Manager (Account), owed explanation as to how he cou ld entertain the bills, in question, without having been checked or passed by hi s subordinates, in the Account Section, or the bills having not been forwarded t o him on being checked by the Account Section. The appellant, MN Borthakur, rema ined, however, silent, on this aspect. The defence, therefore, taken by the accu sed-appellant, MN Borthakur, that the bills, having found to be correct on being checked and verified by the Account Section, he (MN Borthakur) had put his sign atures on the said two bills, is palpably false. In the light of the incriminating materials, which have come on record a 13. gainst the accused-appellant, MN Borthakur, there can be no escape from the conc lusion that he was, indeed, involved, in a criminal conspiracy with accused Anil Chandra Paul (since deceased) to clear the two forged bills, namely, Ext. 6 and Ext. 7. 14. There is, however, not even an iota of evidence on record to show that t he accused-appellant, Sanjib Sarkar, was ever an employee of accused Anil Ch. Pa ul (since deceased). There is, admittedly, no evidence on record to show that it was accused Sanjib, who had submitted the bills and/or received the cheques. Th e entire case of the prosecution, on this aspect, rests on the sole testimony of the hand-writing expert. Ordinarily, the handwriting expert’s opinion, though r elevant, is not binding on the Court. In a case of present nature, when there is not even a particle of eviden 15. ce showing that accused Sanjib Sarkar was ever an employee of Anil Ch. Paul or w as the one, who has gone to the FCI’s Office and deposited the said two bills, i .e., Exts. 6 and 7, it was, in the considered view of this Court, too hazardous to conclude and hold, boldly and confidently depending solely on the opinion of hand writing expert that it was none, but the accused-appellant, Sanjib Sarkar, who had prepared the said two forged bills, submitted the same for clearance to
Decision
FCI’s Office and received the cheques, which were encashed. 16. In view of the fact that it could not, in the light of the discussions h eld above, be proved, beyond reasonable doubt, by the evidence on record that t he accused-appellant, Sanjiv Kumar Sarkar, was the one, who had submitted the bi lls, in question, got the bills passed and received cheques and helped in encash ment thereof, he could not have been, in the face of the evidence on record, hel d to have been proved guilty of the offences, which he stood charged with, and h e ought to have been acquitted by according, at least, benefit of doubt. 17. So far as the accused-appellant, Mukti Nath Borthakur, is concerned, it has surfaced, beyond reasonable doubt, that he had entered into a criminal consp iracy with accused Anil Chandra Deka (since deceased), in whose account the cheq ues, in question, had been deposed and the money was released. 18. In the circumstances indicated above, I see no reason to interfere with the conviction of the accused-appellant, Mukti Nath Borthakur, and/or with the s entence, which has been passed against this accused-appellant. 19. While, therefore, the appeal, which has been preferred by the accused-ap pellant, Sanjiv Kumar Sarkar, and which has given rise to Crl. Appeal No. 100/20 05, needs to be allowed, the appeal, preferred by accused-appellant, Mukti Nath Borthakur, giving rise to Crl. Appeal No. 122/2005, has to be disallowed. 20. In consequence of the above conclusions, which this Court has reached, t he conviction of the accused-appellant, Sanjiv Kumar Sarkar, by the judgement an d order, under appeal, are hereby set aside and he is acquitted, under benefit o f doubt, of the offences, which he stands convicted of. The bail bond of the ac cused-appellant, Sanjiv Kumar Sarkar, is hereby cancelled and his surety is disc harged. 21. In the result and for the foregoing reasons, the appeal, namely, Crl. Ap peal No. 122/2005, preferred by accused-appellant, Mukti Nath Borthakur, is here by dismissed. The conviction of the accused-appellant, Mukti Nath Borthakur, an d the sentences, passed against him by the judgement and order, under appeal, ar e accordingly maintained. 22. d and his surety stands discharged. The accused-appellant, Mukti Nath Borthakur, is hereby directed to surre 23. nder, forthwith, in the learned Court below so as to serve the sentence of impri sonment passed against him. 24. The bail bond of the accused-appellant, MN Borthakur, is hereby cancelle Send back the LCR.