High Court
Case Details
Crl.A. 144/2009 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI This is an appeal against the judgment and order, dated 31-07-2009, passed, in S pecial Case No. 37 of 2005, by the learned Special Judge, Central Bureau of Inve stigation, Assam, Guwahati, convicting the two accused-appellants, under Section s 120(B), 468, 471, 465, and 420, and, additionally, convicting the accused-appe llant, Biswajit Das, under Section 13(1)(d) read with Section 13(2) of the Preve ntion of Corruption Act, 1988 (in short, ’the PC Act’), and sentencing each one of the two accused-appellants to (i) undergo, for their conviction under Section 120(B) IPC, rigorous imprisonment for two years with fine of Rs. 10,000/-, and, in default of payment of fine, suffer further rigorous imprisonment for six mon ths, (ii) undergo, for their conviction under Section 468, read with Section 120 (B) IPC, rigorous imprisonment for two years with fine of Rs. 10,000/-, and, in default of payment of fine, suffer further rigorous imprisonment for six months, (iii) undergo, for their conviction under Sections 471 and 465, read with Secti on 120(B) IPC, rigorous imprisonment for one year, (iv) undergo, for their convi ction, under Section 420 read with Section 120(B) IPC, rigorous imprisonment for two years with fine of Rs. 10,000/-, and, in default of payment of fine, suffer further rigorous imprisonment for six months; and, as far as accused-appellant, Biswajit Das, is concerned, he has been sentenced, additionally, to undergo, fo r his conviction under Section 13(1)(d), read with Section 13(2) of the PC Act, rigorous imprisonment for three years with fine of Rs. 20,000/-, and, in default of payment of fine, suffer further rigorous imprisonment for nine months. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be set out as under: (i) In the month of March, 2003, on having come across a newspaper r eport regarding some fraudulent transactions in the Life Insurance Corporation o f India (hereinafter referred to as ’the LICI’), Mirza Branch, relating to death claims and having also been reported by an employee of the LICI that a person, whose death claim had already been settled, appeared in the office of the LICI a nd since the person was known, people, in the office, got alarmed, because the p erson was the one, whose insurance policy had been closed by making payment of t he assured amount on the ground that he had died, though he had, in fact, not di ed, Senior Divisional Manager, LICI, Guwahati Division, (PW25) directed a prelim inary inquiry to be made by his subordinates and, having come to learn, on the b asis of the inquiry, so made, that some persons, other than the employees of the LICI, were involved in the fraudulent payments, he (PW25), in consultation with the Chief Vigilance Officer, LICI, lodged a complaint with the CBI, Guwahati. (ii) Having carried out its investigation and having obtained requisite sanct ion, under Section 13(1)(d) read with Section 13(2) of the P.C. Act, the CBI lai d charge-sheet, under Sections 120(B)/419 /420/468/471/201 IPC, against both the accused, namely, Dwijen Thakuria and Biswajit Das, and as against accused Biswa jit Das, prosecution was also sought for having allegedly committed offence unde r Section 13(1)(d) read with Section 13(2) of the P.C. Act. The case of the CBI, briefly stated, thus:
Legal Reasoning
(a) While functioning as Development Officer of the LICI, Mirza Branch, accused Biswajit Das had entered into a criminal conspiracy with accused Dwijen Thakuria , whose wife was an agent of the LICI. Pursuant to the criminal conspiracy, so e ntered into, two LICI policies, assured for the life of Phatik Thakuria (PW22), were settled on the basis of the claims, said to have been made by the nominees of the two policy holders aforementioned, that the policy holder, Phatik Thakuri a, had died. (b) The two insurance policies of Phatik Thakuria were purportedly settled as de ath claims in favour of Smti Bina Thakuria, wife and the nominee of Phatik Thaku ria, and the sums, assured in the said two Life Insurance Policies, were credite d into the bank account, which stood purportedly opened in the name of Smt. Bina Thakuria, in the Central Bank of India, Mirza Branch, the introducer of the sai d Smt. Bina Thakuria being accused Dwijen Thakuria, but in place of Bina Thakuri a’s photographs, as was required to be pasted on the account opening form and th e specimen card of the bank, the photographs of Smt. Bijuli Kalita, wife of accu sed Dwijen Thakuria, had been pasted/attached to. (c) The charge-sheet alleged that both the insurance policies of Phatik Thakuri a were settled on the basis of death claims said to have been made by his nomine es despite the fact that Phatik Thakuria was still alive and not even aware of t he fact that the death claims, as mentioned hereinbefore, had been made nor did his wife, Bina Thakuria, as the nominee, received the cheques in respect of the assured amounts, issued by the LICI, which had been deposited in the forged and fictitious account of Smt. Bina Thakuria and, thereafter, cheques of diverse sum s of money, seeking encashment of the amounts, mentioned in the cheques, were de posited in the said forged and fictitious account of Bina Thakuria, the cheques having been filled up by accused Biswajit Das and the money, covered by the said cheques, were shown to have been received by Bina Thakuria, wife of Phatik Thak The charge-sheet, as against the accused Biswajit Das, was laid after ha uria, though no such payment had ever been received by Bina Thakuria. (d) In fact, pursuant to the criminal conspiracy, which both the accused afo rementioned had entered into, they had visited the house of Phatik Thakuria in t he year 2000 and took away the two insurance policies, in question, including th e premium payment receipts, from Phatik Thakuria on the pretext that the policie s were required to be upgraded. The charge-sheet also alleged that Phatik Thakur ia had never made any death claim to the LICI. (e) ving obtained requisite sanction from the competent authority. 3. At the trial, charges against both the accused were framed under Section s 120(B), 420, 468, 465 and 471 IPC and, as against accused Biswajit Das, an add itional charge was framed under Section 13(1)(d) read with Section 13(2) of the PC Act, 1988. To the charges, so framed, both the accused pleaded not guilty. 4. In support of their case, prosecution examined altogether 30 witnesses. Both the accused were, then, examined under Section 313(1)(b) Cr.P.C. and, in th eir examinations aforementioned, both the accused denied that they had committed the offences, which were alleged to have been committed by them, the case of th e defence being that of total denial. While accused Dwijen Thakuria adduced evid ence by examining one witness, accused Biswajit Das declined to adduce any evide nce. Having, however, found both the accused guilty of the offences under Sec 5. tions 120(B), Section 468 read with Section 120(B) IPC, Sections 471 and 465 rea d with Section 120(B) IPC, Section 419 read with Section 120(B) IPC, Section 42 0 read with Section 120(B) IPC, the learned trial Court convicted them according ly and, having found accused Biswajit Das also guilty of an offence, under Secti on 13(1)(d) read with Section 13 (2) of the PC Act, convicted accused Biswjit Da s accordingly. Following their conviction, the impugned sentences were passed ag ainst the two convicted persons as mentioned above. 6. Aggrieved by their conviction and the sentences, which have been passed against them, both the accused, as convicted persons, have preferred appeals. Bo th the appeals, so preferred, have been heard together and are being disposed of by this common judgment and order. 7. I have heard Mr. DK Das, learned Senior counsel, appearing on behalf of the accused-appellant, Dwijen Thakuria, and Mr. P Bora, learned counsel, for the accused-appellant, Biswajit Das. I have also heard Mr. PN choudhury, learned St anding Counsel, CBI, appearing on behalf of the respondents. 8. While considering the present appeal, it needs to be noted that it is th e undisputed evidence of PW1 that Biswajit Das was, at the relevant point of tim e, Development Officer of the LICI at Mirza Branch and while Dwijen Thakuria was not an agent, his wife was an agent of the LICI, but people, generally, knew Dw ijen Thakuria as an agent of the LICI, because it was Dwijen Thakuria, who used to act as an LICI agent on behalf of his wife, Bijuli Thakuria. 9. Bearing in mind the fact that accused Biswajit Das was, at the relevant point of time, Development Officer, LICI, Mirza Branch, and accused Dwijen Thaku ria’s wife, Bijuli Kalita, was an agent of the LICI, let us, first come to the e vidence of PW22 (Phatik Thakuria), whose two insurance policies were allegedly u sed for the purpose of settling death claims on the false ground that he had die d. This witness’s evidence, being crucial, his evidence needs to be carefully no ted. 10. It is in the evidence of PW22 that he has been a businessman, his wife’s name is Bina Thakuria, he had two LICI policies, one policy being for a sum of Rs. 50,000/- and the other policy being for a sum of Rs. 75,000/-, and, in both the said policies, his wife, Bina Thakuria, was nominee and, as Mirza is a small place, he (PW22) knew both, Dwijen Thakuria and Biswajit Das, and that Dwijen T hakuria was known as an LICI agent. It is also in the evidence of PW22 that both the accused came once to hi 11. s house requesting him to take new policies, but he declined by saying that he a lready had two policies and showed his two visitors his said two life insurance policies and, on being shown the said two policies by PW22, both the accused too k away the said policies, along with money receipts of the premiums paid, tellin g PW22 that the said policies were required to be upgraded. 12. PW22 has deposed that after some days, one Sri Sarma, who was the then M anager, LICI, Mirza Branch, came to the residence of PW22, when PW22 was not pre sent at his house, and told his wife, Bina Thakuria (PW24), to ask her husband ( PW22) to meet him and PW22 accordingly went, on the following day, to the office of the LICI, Mirza Branch, and met the then Manager, Mr. Sarma, who informed P W22 that both his policies had been encahsed by Dwijen Thakuria and Biswajit Das in the name of PW22’s wife, namely, Smt. Bina Thakuria, showing PW22 as having died. PW22 has clarified that he had never asked Dwijen Thakuria and Biswajit Da s to encash his policies. 13. Though PW22 was put to cross-examination, nothing could be elicited from him to show that what he had deposed was untrue or false. In his cross-examinat ion, PW22 has, however, clarified that he had mentioned the name of Bina Thakuri a as nominee, in the said two policies, at the time, when his wife was not prese nt at home, and that Dwijen Thakuria, accompanied by Biswajit Das, had come to h is house and requested him to start a new policy, which he (PW22) declined, and it was, thereafter, that his said two visitors assured that the two policies, wh ich PW22 had handed over to them, would be upgraded and they would inform him af terwards. Though PW22 has admitted that he did not file any FIR, he claimed that he had come to know that cases had been registered against both, Biswajit Das a nd Dwijen Thakuria, and that on the advice of the Manager, LICI, Mirza Branch, h e filed an application before the Branch Manager, LICI, Mirza Branch. 14. In his cross-examination, PW22 has also clarified that he did not verify whether Dwijen Thakuria was LICI agent or not and that he, in ’good faith’, han ded over his two insurance policies to the two accused by putting his signatures on the said two policies. It is also in the evidence of PW22 that Biswajit Das came to his residence earlier also on the occasion of a ceremony, which was held on his daughter attaining puberty. In his cross-examination, PW22 has further c larified that though he had 3/4 policies of the LICI, those were discontinued as he could not pay the premiums. 15. It was suggested to PW22 by the defence that he (PW22) had difficult tim e in business and, that was why, he had called Dwijen Thakuria and Biswajit Das to help him surrender the policies and he had, accordingly, surrendered, volunta rily, the said two policies. This suggestion was, however, denied by PW22. 16. What needs to be noted, while discussing the evidence of PW22, is that t he facts that two accused had visited the house of PW22, as deposed to by PW22, that they had taken away the said two insurance policies on the pretext of upgra ding the said two policies, that in both the policies, Bina Thakuria, as wife of PW22, was the nominee, could not be shaken. Far from this, these facts were ta citly admitted inasmuch as the suggestion, offered to PW22 (though denied by PW2 2), was that it was PW22 himself, who had surrendered the policy by calling Dwij en Thakuria and Biswajit Das, meaning thereby that Dwijen Thakuria and Biswajit Das had, indeed, received the said two policies of PW22. It has also surfaced fr om the evidence of PW22 that besides the said two policies, the two accused had taken away, from PW22, all the receipts of premiums, which PW22 had paid in resp ect of his said two policies. 17. In his cross-examination, PW22 has asserted that when he had handed over the documents aforementioned, i.e., the said two insurance policies, premium pa id receipts with his signatures, except he (PW22), accused Dwijen Thakuria and B iswajit Das, none else was present. This assertion of PW22 went unchallenged by the defence. Though it has been pointed out by Mr. P. Bora, learned counsel for the a 18. ccused-appellant, Biswajit Das, that according to PW22, accused Biswajit Das had gone to his house ’once’ at the time of the ceremony, which had been observed o n the daughter of PW22 attaining puberty, it needs to be noted, in this regard, that the clear evidence of PW22 is that both the accused came to his house ’once ’ for the purpose of requesting him to open new LIC policy. It has never been in the evidence of PW22 that it was ’only once’ that accused Biswajit Das had come to his house. In this context, when the evidence given by PW22 is considered th at Biswajit Das had come ’once’ for attending the puberty attaining ceremony of his daughter, because he had been invited to attend that ceremony, it becomes ab undantly clear that the visit of accused Biswajit Das, accompanied by accused Dw ijen Thakuria, to the house of PW22 to collect the insurance policies on the pre text of upgrading the same cannot be described, or cannot be said to be, the ’on ly visit’ of accused Biswajit Das. 19. Nothing could, in fact, be elicited from PW22 to show that what he has d eposed is untrue or false. When there is nothing to show that PW22 has any animo sity with any of the two accused-appellants or that he or his wife, Bina Thakuri a, had received any part or portion of the amount(s), which had been released by the LICI on the basis of the death claims made in respect of the said two insur ance policies of PW22, there remains no manner of doubt that both the accused-ap pellants did visit the house of PW22, as deposed to by PW22, and, on the pretext of upgrading PW22’s said two insurance policies, they did collect the said poli cies, premium paid receipts, in this regard, with the signatures of PW22 on the said policies. 20. Close on the heels of the evidence of PW22 is the evidence of PW5, a doc tor, which needs to be, now, considered. The evidence of PW5 is that he joined a s Medical Examiner, LICI, Mirza Branch, during the year 1988-89, and that he is required to give his report as regards status of health of the policy holders. 21. It is the evidence of PW5 that he knew accused Dwijen Thakuria as an LIC I agent of the LICI office, Mirza Branch, and that accused Dwijen Thakuria came to him (PW5) and showed him a certificate received from Gaonburah (village headm an) regarding death of one Phatik Thakuria (PW22) and that at that time, accused Dwijen Thakuria had also brought, with him, another person, whom (according to the evidence of PW5), accused Dwijen Thakuria had introduced as a relative of Ph atik Thakuria. This apart, according to the evidence of the doctor (PW5), while approaching him (PW5) for obtaining death certificate of Phatik Thakuria, the ap plication, which accused Dwijen Thakuria had brought with him, had been duly fil led containing the information as regards the death of Phatik Thakuria, and, in good faith, he (PW5) issued a death certificate, in the name of Phatik Thakuria, and handed over the same to accused Dwijen Thakuria. In his evidence, PW5 has c larified that he did not personally know Phatik Thakuria and that his death cert ificate was based on the certificate, which had been given by Gaonburah. In his cross-examination, PW5 (doctor) has clarified that Dwijen Thakuri 22. a had been known to him as the agent of the LICI since 1990 and that since 1990, accused Dwijen Thakuria used to come to his house, but Dwijen Thakuria stopped coming to his house since the year 2005, when the present case was instituted. I n his cross-examination, PW5 has also clarified that upon inquiry made by him, a ccused Dwijen Thakuria told him that it was a fact that Phatik Thakuria had died . 23. Though denied by Dwijen Thakuria that he had carried to PW5 a certificat e, as regards death of Phatik Thakuria (PW22), from the Gaonburah, or that he ha d obtained death certificate from PW5 in respect of death of PW22 on the basis o f the certificate, which had been issued, in this regard, by the Gaonburha, both these suggestions have been denied by PW5. Nothing could be brought out from th e cross-examination of PW5 to show that what he had deposed was untrue or false. Crucially enough, lending support to the evidence of PW5, PW6, who was h 24. eadman of village Coachpara, has admitted, in his evidence, that he had issued t he death certificate, in question, without verifying if Phatik Thakuria was real ly alive or dead. Broadly in tune with the evidence of PW5 and PW6, PW27 has deposed that 25. he worked as a Field worker, at Sonapur Primary Health Centre, since the year 19 87 and he joined Uparhali Primary Health Centre, Mriza, as a Field Worker, in th e year 1991 and he used to issue death certificates. It is in the evidence of PW27 that whenever any person approached their 26. PHC for obtaining death certificate, the PHC issued death certificate, in the pr escribed form, on the basis of the death certificate issued by the doctor. It i s in the evidence of this witness (PW27) that he met Dwijen Thakuria, for the fi rst time, at his said PHC, when accused Dwijen Thakuria approached him (PW27) se eking to obtain death certificate of a person, namely, Phatik Thakuria and that while coming to the PHC, Dwijen Thakuria had already brought a death certificat e given by Dr. Dilip Das (i.e., PW5, whose evidence, we have already discussed a bove) and, thus, a death certificate, in the name of Phatik Thakuria, was accord ingly issued and handed over to accused Dwijen Thakuria. In his cross-examinatio n, this witness has clarified that it was in the year 2001, when police made inq uiry from him that he came to learn that Phatik Thakuria was still alive and he (PW27), immediately, informed the Medical and Health Officer, Uparhali PHC, abou t the fact that Phatik Thakuria was still alive. 27. Though PW27 has been cross-examined by the defence, nothing could be ext racted from his cross-examination to show that his evidence was false or incorre ct or his evidence that it was Dwijen Thakuria, who had obtained the death certi ficate, was not true. Thus, the evidence of PW27 could not be shaken on material aspects. 28. Coupled with the above, one must not lose sight of the fact that the ide ntification of accused Dwijen Thakuria, at the trial, is substantive evidence ag ainst the said accused unlike a Test Identification Parade (in short, ’TIP’), wh ich is conducted at the stage of investigation. 29. It is, therefore, permissible to rely on such substantive evidence of id entification of an accused at the trial, though rule of prudence demands that in the absence of a TIP having been held properly and in accordance with law, the conviction of an accused should not be based entirely on his being identified, a t the trial, by a witness, who did not know the accused. 30. With regard to the above, a reference may be made to the case of State o f U.P. vs. Boota Singh and Ors., reported in (1979) 1 SCC 31, wherein the High C ourt, relying on the Supreme Court’s decision, in the case of Budhsen vs. State of U.P., reported in (1970) 2 SCC 128, had held that there can be no two opinion s about the fact that the evidence of identification is very weak type of eviden ce and should be closely scrutinized before reliance is placed thereon. Not agre eing with such a broad proposition of law, which the High Court had set in Boota Singh’s case (supra), the Supreme Court has explained its decision in Budhsen’s case (supra). 31. The Supreme Court has, thus, explained, in Boota Singh’s case (supra), t hat while holding, in Budhsen (supra), that evidence of identification, for the first time, at the trial, is of a weak character, what the Court really meant wa s that where the evidence of a witness, in the court, is not tested by prior ide ntification parade, not much reliance can be placed on such evidence. The Supre me Court, in Boota Singh’s case (supra), has further pointed out that Budhsen (s upra) does not lay down a rule of universal application and that where a witness , who had identified an accused at a TI Parade held by a Magistrate after observ ing all the essential formalities and taking the necessary precautions, again, i dentifies the accused in Court, too, the evidence of identification can be belie ved unless the evidence of witness suffers from some other infirmity. Moreover, the evidence of identification becomes stronger if the witness has an opportuni ty of seeing the accused not for a few minutes, but for some length of time, in broad day light, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes. 32. To put it a little differently, what the decision, in Boota Singh’s case (supra), lays down is that the identification of an accused by a witness, at th e trial, is really substantive piece of evidence and even if such identification has not been tested by a prior identification parade, a court may still rely on such a piece of evidence of identification if the court is satisfied that the w itness had the time and the opportunity of seeing and noticing the features of t he accused and, hence, when a witness had only fleeting glace of an accused or h ad not seen the accused due to darkness or dim light and not for sufficient peri od of time to have noticed the features of the accused, such a piece of evidence may be unsafe to rely upon; but there is no law that identification of an accus ed by a witness, for the first time, at the trial, cannot, or must not, in all c ircumstances, be relied upon. Therefore, the value of identification of an accu sed by a witness, at a trial, depends on the facts of a given case. 33. In the case at hand, there was sufficient time and opportunity with PW27 to see, meet and talk to Dwijen Thakuria and the evidence of PW27, having remai ned completely unshaken in his cross-examination, I see no reason to disbelieve his evidence, or not to rely upon his evidence, which his evidence, otherwise, d eserves. On a cautious and combined reading of the evidence of PW22 (Phatik Thaku 34. ria), PW6, the headman of the village Coachpara, PW5, the doctor, and PW7, an em ployee of Uparhali PHC, it becomes abundantly clear that the two accused-appella nts, namely, Dwijen Thakuria and Biswajit Das, had gone to the house of Phatik T hakuria and, on the pretext of getting the two insurance policies of PW22 update d, they took away the said two policies along with the premium payment receipts and, thereafter, accused Dwijen Thakuria obtained a false death certificate from the village headman (PW6) and, on the basis of the said certificate, he obtaine d death certificate of Phatik Thakuria from PW5, who is a doctor, and, on the ba sis of the certificate, which had been so issued by the doctor (PW5), accused-ap pellant, Dwijen Thakuria, fraudulently obtained a death certificate from Uparhal i PHC. Bearing in mind what we have noted above, we, now, come to the evidence 35. of PW2, whose evidence is that on 21-05-2002, she functioned as Branch Manager, Central Bank of India, Mirza Branch. Describing the procedure for opening of a n ew account, this witness (PW2) has deposed that when someone wants to open a new account at their bank, the person needs to fill up the account opening form as well as specimen signature card and that the application form is required to be filled up in presence of the officials of the bank and though the application fo rm as well as the specimen signature card can be filled up by any person, the si gnature of account holder needs to be given at the respective places. This witne ss has proved Ext. 2 as the account opening form in the name of Bina Thakuria, w hose account was opened, on 11-09-2000, at the Central Bank of India, Mirza Bran ch, the introducer of the said account holder being Dwijen Thakuria. It is also in the evidence of PW2 that Ext.3 is the specimen signature card in the name of Bina Thakuria and that in the specimen signature card, Dwijen Thakuria was the i ntroducer. 36. Further evidence of PW2 is that Ext. 4 is a bearer cheque, amounting to Rs. 50,000/-, dated 03-10-2000, which appears to have been issued by Bina Thakur ia and that the said amount was withdrawn from the account of Bina Thakuria by D wijen Thakuria. It is in the evidence of PW2 that Ext. 6 is a bearer cheque, for Rs. 60,000/-, dated 13-10-2000, issued by Bina Thakuria and that the amount, me ntioned in the said cheque, was withdrawn by Bina Thakuria and that apart from t hese two cheques, Ext. 7 is yet another bearer cheque for Rs. 30,000/-, dated 16 -10-2000, issued by Bina Thakuria and the amount, mentioned in this cheque, too, was withdrawn by Dwijen Thakuria. In this manner, according to the evidence of PW2, two more payments were received by Dwijen Thakuria in respect of the bearer cheques, which are Ext. 8 and Ext. 9. My quest for an answer to the above questions brings me to the evidence 37. In his cross-examination, PW2 has clarified that signatures of Dwijen Th akuria are found affixed on each and every cheque, though in some of the cheques , Bina Thakuria’s name, too, appears. 38. In her cross-examination, PW2 has also clarified that the signatures of Dwijen Thakuria and Bina Thakuria were not put in her presence, but she has iden tified the said signatures, because of the names mentioned on the said cheques. 39. From the evidence of PW2, what clearly surfaces is that the accounts wer e opened in the name of Bina Thakuria, cheques were deposited there and the amou nts, mentioned in the cheques, were realized, by issuing several cheques for div erse sums of money by a person, claiming to be Bina Thakuria, and the amounts we re received by one Dwijen Thakuria. 40. In short, thus, the cheques aforementioned were encashed by someone, who claimed to be Bina Thakuria, and that the account was opened, in the name of Bi na Thakuria, on her being introduced by a person, who called himself Dwijen Thak uria. 41. Though it transpires that an account was opened at the Central Bank of I ndia, Mirza Branch, in the name of Bina Thakuria, on her being introduced by one Dwijen Thakuria, the questions, which still surface, are as to whether Bina Tha kuria, whose name was used for the purpose of opening the account, in question, was or was not the wife of Phatik Thakuria and whether accused Dwijen Thakuria w as the one, who had introduced the said Bina Thakuria ? 42. of PW20. 43. So far as PW20 is concerned, he has deposed that he has been, at the rel evant point of time, working as a clerk in the Central Bank of India, Mirza Bran ch. Having gone through Ext. 7, this witness has deposed that the cheque, bearin g No. 009704, was issued by Bipin Ch. Das and counter signed by Bichitra Narayan Deka. PW20 has proved the signatures of these two persons as Ext. 7/1 and 7/2 o n the ground that he had worked with them and was acquainted with their signatur es. This witness has also deposed that by Ext. 7, payment was made to Dwijen Tha kuria, who, in the presence of this witness (PW20), put his signature on the bac kside of the cheque and Ext. 4 is the said signature of Dwijen Thakuria. It is i n the evidence of PW20 that he knew Dwijen Thakuria as the latter was a regular customer of the bank and he used to come to their bank and he knew Dwijen Thakur ia as a customer of the bank. 44. PW20 has clarified that in the case of bearer cheque, payment can be mad e to anybody, who produces the cheque for payment. PW20 has reiterated that he n ot only knew Dwijen Thakuria, but he also knew Bijuli Kakoti and Bina Thakuria. PW20 has asserted that he knows that all the five cheques were given to Dwijen T hakuria and Dwijen Thakuria came to the bank alone and withdrew the amounts and that, out of the five cheques, he only made payment of one cheque for a sum of R s. 30,000/- (marked as Ext. 7) and that the cheque, in question, was issued by Bina Thakuria, account holder, the cheques being self-drawn cheques. 45. PW20 has also clarified that Ext. 21 is a cheque for a sum of Rs. 1,67,583/-, issued by the LICI, Mirza Branch, to Bina Thakuria, in her Acco unt No. 9582, at the Central Bank of India, Mirza Branch, and that the said amou nt had been deposited in the account of Bina Thakuria. 46. The material aspects of the evidence of PW20 have remained wholly unshaken. 47. When the evidence of PW20 is considered, in the light of the evidence of PW2, it becomes clear that it was accused Dwijen Thakuria, who had received pay ments of the bearer cheques, in question, from the Central Bank of India, Mirza Branch, the money having been released from the account of Bina Thakuria. 48. Let me, now, turn to the evidence of PW4, who has deposed that Purbancha l Bank was merged with the Central Bank of India and though he (PW4) was, origin ally, a clerk of Purbanchal Bank, he was posted at Central Bank of India, Mirza Branch, in the year 1991. This witness has deposed that Ext. 5 and Ext. 8 are t he self-cheques, signed by one Smt. Bina Thakuria, for Rs.16,000/- and Rs.3,000/ PW20 has deposed that Bina Thakuria’s account was opened on 11-09-2000. - respectively, and that the payments, in respect of these cheques, were made to one Sri Dwijen Thakuria and, similarly, Ext. 4, which was a cheque for a sum of Rs.50,000/-, was passed by his bank and the amount was received by Dwijen Thaku ria. To the same effect is the evidence of PW4 in respect of the Ext. 6, Ext. 7 and Ext. 9, which are also self-cheques for Rs. 60,000/-, Rs.30,000/- and Rs.8, 000/-, respectively, purportedly drawn by Bina Thakuria and that amounts, covere d by the said cheques, were encashed by Dwijen Thakuria. PW4 has deposed that Ex. 2 is the account opening form in the name of Bi 49. na Thakuria, in respect of Account No. 9582, and that said Bina Thakuria was int roduced by Dwijen Thakuria and that Ext. 2(1) is the signature of one B. C. Das, who had allowed opening of the said account. PW4 has further deposed that Ext.3 is the specimen signature card in the name of Smt. Bina Thakuria and that the i ntroducer of the said Smt. Bina Thakuria was Sri Dwijen Thakuria. 50. In his cross-examination, it has been clarified by PW4 that Dwijen Thaku ria was also an account holder in the said bank and that the amounts, covered by Ext.4 to Ext.9, which were in the name of Smt. Bina Thakuria, had been withdraw n by Dwijen Thakuria. 51. What needs to be noted is that though PW4 has admitted that despite the fact that he had made payments vide Ext. 5 and Ext. 8, there was no endorsement, given by him on the reverse side of Ext.5 and Ext.8, to the effect that he had made payment to Sri Dwijen Thakuria, this witness has nonetheless deposed that h e had known Dwijen Thakuria as one of the account holders and that the amounts, which were covered by the said cheques, had been withdrawn by accused Dwijen Tha kuria. Let me, now, turn to the evidence of PW10, who had, at the relevant poin 52. t of time, been working at the LICI, Mirza Branch, as an Assistant. He has depo sed that Ext.3 is the specimen signature card in the name of Bina Thakuria and E xt.2 is the account opening form and that he knows Bina Thakuria as she belongs to the same place to which he (this witness) belongs. What is, however, of imme nse importance to note, in the evidence of PW10, is that he has deposed that the photographs, affixed to Ext. 2 and Ext. 3, namely, the specimen signature card and account opening form, respectively, were not the photographs of Bina Thakuri a. 53. In his cross-examination, PW10 has also clarified that he had not visite d the house of Phatik Thakuria and his wife, Smt. Bina Thakuria, but very often, he used to meet them in the market and that he also knows Dwijen Thakuria, who visits the LICI office, Mirza. 54. From the unshaken evidence of PW10, what becomes clear is that the photo graphs, which had been affixed or attached to Ext.2 and Ext.3 (which are the spe cimen signature card and account opening form of the bank respectively), as the photographs of Bina Thakuria, were actually not of Bina Thakuria. 55. What clearly follows from the above discussion of the evidence on record is that the account, which had been opened in the Central Bank of India, Mirza Branch, in the name of Bina Thakuria (as rightly pointed out by the prosecution) , had not been opened by Bina Thakuria herself, but the said account was, indeed , opened in her name and the person, who had introduced the purported Bina Thaku ria, was accused Dwijen Thakuria inasmuch as it was accused Dwijen Thakuria, who had acted, as would be evident, as an introducer of the said Smt. Bina Thakuria . Logically extended, it would mean that accused Dwijen Thakuria had intro 56 duced someone, other than Bina Thakuria (PW24), wife of Phatik Thakuria, as Bina Thakuria, and got the account opened, at the Central Bank of India, Mirza Branc h, in the name of Bina Thakuria, and, then, the cheque, issued by the LICI, was deposited in the said account, and, by various self-cheques, diverse sums of mon ey were withdrawn and those amounts were received by none other than accused Dwi jen Thakuria. 57. Lending support to the evidence of PW10, PW12, who worked at the LICI of fice, Mirza Branch, in the year 1989, as an Assistant, has deposed that Ext.3 is the specimen signature card of savings bank account in the name of Bina Thakuri a and Ext. 2 is the account opening form in the name of Bina Thakuria. PW12 has deposed that he knows Bina Thakuria and the photographs, which stood attached t o the account opening form and the specimen signature card, are not of Bina Thak uria. The defence has not disputed, while cross-examining PW12, that he knew B 58. ina Thakuria and her husband, Phatik Thakuria. Considered in this light, it is clear, particularly, when the evidence of PW12 has remained unshaken (while bein g cross-examined), that the saving bank account, which was opened at Central Ban k of India, Mirza Branch, in the name of Bina Thakuria, was, in fact, a fictitio us account. 59. It is important to note that it is also the unshaken evidence of PW12 th at he knew Dwijen Thakuria and that as an agent of the LICI, accused Dwijen Thak uria used to visit their office. In his cross-examination, PW12 has clarified th at though he knows Dwijen Thakuria, he did not know Bijuli Kalita, agent of LICI . 60. The evidence of PW13 is similar, in material particulars, to the evidenc e of PW12 inasmuch as this witness (PW13), too, has deposed that he knows Bina T hakuria and that the photographs, on Ext.2 (i.e., the specimen signature card) a nd Ext.3 (account opening form), are not of Bina Thakuria. 61. There remains, in the light of the evidence of PW10, PW12 and PW14, no m anner of doubt that the photographs, which were attached, or affixed, to Ext. 2, which was specimen signature card, and Ext. 3, which was account opening form, in the name of Bina Thakuria, were not of Bina Thakuria (PW24), though Bina Thak uria (PW24) was the nominee in the insurance policies of Phatik Thakuria (PW22). 62. In short, thus, the saving bank account, which had been opened at the Ce ntral Bank of India, Mirza Branch, in the name of Bina Thakuria, was, if one may reiterate, a fictitious account. 63. So far as PW21 is concerned, his evidence is that he joined, as Clerk, o n 07.07.1986, at the Central Bank of India, Mirza Branch, and, till the date of giving deposition, i.e., on 12.12.2008, he has been working as Cash Payment Cler k. 64. Describing the procedure, followed by Central Bank, as regards making of payment, this witness has deposed as follows: (cid:28)When I receive any cheque, I see whether the amount of the cheque is written co rrectly or not in words as well as in figure. Thereafter, I see whether the date is correctly put or not. Then I see whether the signature of the account holder is verified by the passing officer or not. Thereafter, I see whether the pay or der is given by the passing officer or not and then I call the token holder to t ake the payment and if I know him as a customer, then, I make payment. In case of bearer cheque, I check the nature of the signature of the producer/be arer of the cheque to match his earlier signature given at the time of taking th e token. Thereafter, I made the payment after putting the seal and signature. In case of the cheque, which is drawn as self, but the cheque is brought to the ba nk by the bearer other than the account holder, then I make payment only after t aking the signature of the bearer. In case of cheque, which is drawn as self and if the account holder himself is p resent, then I make the payment to the account holder only after taking his sign ature on the back side of the cheque. (cid:29) 65. So far as Ext.4, i.e., the cheque No.009701, for Rs.50,000/-, is concern ed, this witness (PW21) has deposed that this cheque was passed by Ranjit Kumar Baruah and the pay order was given by Bipin Das and since PW21 is conversant wit h their signatures, which were exhibited as Ext.4/1 and 4/2 respectively, he him self put the seal ’cash paid’, which is Ext.4/3. 66. What is of immense importance to note, now, is that this witness (PW21) has identified and proved the signature, on the reverse side of the cheque, (whi ch was a bearer cheque), as the signature of Dwijen Thakuria at the time of taki ng of the token by Ext.4/4. 67. As regards Ext.6, PW21 has deposed that this cheque was passed by Ranjit Kumar Baruah and Binod Prasad Sharma and this witness has identified and proved the signatures of the said persons as Ext.6/1 and 6/2, respectively, and that h e (PW21) himself was the person, who had put the seal ’cash paid’ and proved the said seal as Ext.6/3. 68. What is of greatest significance to note, in the evidence of PW21, is th at he has very clearly deposed that he had made the payments to Dwijen Thakuria and that he can identify Dwijen Thakuria’s signature on the backside of the said cheque (i.e., Ext.6) and, thus, the signature of accused Dwijen Thakuria has be en proved by this witness as Ext.6/4. 69. As regards Ext.9, PW21 has deposed that this cheque was passed by Bipin Das and he (PW21) had signed this cheque after putting the seal ’cash paid, Ex.9 /1 is the signature of Bipin Das and Ext.9(2) is the signature of PW21 and that the payment was made to Dwijen Thakuria. PW21 has identified and proved the sign ature of accused Dwijen Thakuria on the reverse side of this cheque as Ext.9/3 a nd the cheque amount was below Rs.20,000/-. 70. As regards Ext. 32, too, PW21 has deposed that this cheque was passed by Ranjit Baruah and Kamal Devi, whose signatures have been identified by PW21 as Ext.32/1 and 32/2, respectively. According to the evidence of PW21, after havin g put the seal ’cash paid, vide Ext.32/3, he (PW21) made the payment to accused Dwijen Thakuria. PW21 has identified and proved the signature of accused Dwijen Thakuria on the reverse side of the cheque as Ext.32/4. 71. It is of vital importance to note, in the evidence of PW21, that he know s Dwijen Thakuria as he was a regular customer of their bank and used to come to their bank regularly. 72. Nothing could be elicited from the cross-examination of PW21 to show tha t what he had deposed were untrue or false. In fact, in his cross-examination, P W21 has clarified that the cheque, presented by accused Dwijen Thakuria, was sig ned by him, Bipin Das and Ranjit Baruah. PW21 has also clarified that Dwijen Tha kuria and Bina Thakuria have separate accounts in the Central Bank of India, Mir za Branch. 73. In the light of the evidence of PW21, it goes beyond any shadow of doubt that it was accused-appellant, Dwijen Thakuria, who had withdrawn money from Bi na Thakuria’s account, where the cheque, issued by LICI, Mirza Branch, as a resu lt of death claim of PW22, had been deposited. 74. So far as PW24 (Bina Thakuria) is concerned, she has deposed that she is a housewife and Phatik Thakuria (PW22) is her husband. PW24 has clarified that she has no knowledge either about her husband’s LIC policies or about the fact t hat she was nominee in the said LIC policies. 75. What is important to note, in the evidence of PW24, is that she has clea rly deposed that she has had no bank account either in the Central Bank, Mirza B ranch, or in any other bank. 76. Having gone through Ext.21, which is the cheque, issued in the name of B ina Thakuria, in her saving bank account No. 9582, PW24 has deposed that she doe s not know about the said cheque inasmuch as this cheque was never given to her, she never encashed the cheque and the amount, mentioned in the cheque, was neve r received by her. 77. As regards Ext.7, PW24 has deposed that the signature in the name of Bin a Thakuria, on the said cheque, was not her signature and, similarly, the signat ures, put on the cheques i.e., Ext.4, 5, 6, 8 and 9, in the name of Bina Thakuri a, are also not her signatures. 78. As regards Ext.3, i.e., the specimen signature card, this witness has de posed that the signature, put on the specimen signature card, in the name of Bin a Thakuria and the photographs, affixed thereto, are not her signature and/or he r photographs. 79. As regards Ext.2, i.e., the account opening form of the Central Bank of India, bearing account No. 9582, this witness (PW24) has deposed that the signat ures, put in the said account opening form, are not her signatures and the photo graphs, affixed thereto, are not her photographs. 80. It is of great importance to note that PW24 has clearly deposed that she knows Dwijen Thakuria and Biswajit Das, because these persons had visited her h ouse. This witness has also deposed that she never made any claim in respect of any LIC policy of her husband. 81. In her cross-examination, PW24 has clarified that she does not recollect when Biswajit Das visited her husband, but she remembers that her husband asked her to give him a cup of tea. 82. Explaining as to why she had not stated in her previous statement, made under Section 161, that Dwijen Thakuria and Biswajit Das had come to her house, PW24 has stated that she had not made any such statement before the police, beca use she was not asked any question in this regard. This assertion of PW24 went u nchallenged by the defence. In the light of the above unshaken evidence of Bina Thakuria (PW24), cou 83. pled with other evidence, which have been discussed above, the inference, which this Court has drawn above, gets strengthened that the account, which had been o pened in the name of Bina Thakuria, at Central Bank of India, Mirza Branch, was a fictitious account and that it was in this account that the cheque, which had been issued by the LICI, Mirza Branch, had been deposited and, it was from this account that money had been withdrawn by accused Dwijen Thakuria by presenting c heques of diverse sums of money and by putting forged signatures of Bina Thakuri a in the cheques, so presented. PW16 is a person, who has deposed that Dwijen Thakuria’s specimen signat 84. ures were taken, in his presence, at the office of the Central Bank of India and that Dwijen Thakuria gave his specimen signatures voluntarily and without any p ressure. This witness has proved Exts. 22/1 to 22/6, consisting of 6 pages, as s pecimen signatures of Dwijen Thakuria. 85. Coming to the evidence of PW14, who is Special Security Assistant, EPF, Regional Office, Guwahati, we notice that according to his evidence, he went, on 24.03.2005, to the office of CBI, Guwahati, on the instructions of his superior authority and, that on that day, specimen writings of Biswajit Das were taken i n his (PW14’s) presence, on 72 sheets of papers. These signatures of accused Bi swajit Das have been proved by this witness as Ext. 20(1) to Ext. 20(72). 86. PW29, one of the Investigating Officers, has deposed that during investi gation, it had come to light that accused Biswajit Das and Dwijen Thakuria had p ersonally visited the residence of Phatik Thakuria, the policy holder of policy Nos.480657491 and 481351823, and, on the pretext of upgradation of the policies, they had collected the original policy documents, premium payment receipts, etc , from Phatik Thakuria, but they never returned the policies to the policy holde r. Later on, when Phatik Thakuria came to know from the Branch Manager, LICI, Mi rza, about the said fact, he lodged a complaint. 87. In the light of the evidence of PW29, it is clear that the investigation , made by PW29, revealed that Dwijen Thakuria had deposited the claim cheques, i n respect of both the policies, in Central Bank of India in Account No.9582. The said account, which comprises of account opening form, i.e., Ext.3, and specime n signature card, i.e., Ext.2, have found to have borne the handwriting of Dwije n Thakuria by PW30, who is, as pointed out above, the Government Examiner of Que stioned Documents, Kolkata, (in short, GEQD), and that the introducer of the acc ount holder, in respect of the said account, was accused Dwijen Thakuria himself . 88. It is in the evidence of PW29 that the claim cheque was found to have be en deposited in the said account on 28.09.2000 and, thereafter, withdrawal was m ade, on 03.10.2000, for Rs.50,000, on 09.10.2000 for Rs.16,000/-, on 13.10.2000 for Rs.60,000/-, on 13.11.2000 for Rs.3,000/-, on 14.11.2000 for Rs.6000/- and o n 16.10.2000, for Rs.30,000/- and that it was confirmed by the officials of the Central Bank of India, Mirza Branch, that Dwijen Thakuria had collected the mone y in respect of aforesaid cheques from the bank. 89. The Investigating Officer (PW29) has also deposed that GEQD has proved t hat the signatures, on the cheques bearing the name of Smt Bina Thakuria, were o f Dwijen Thakuria. 90. PW29 has also deposed that the handwriting expert has proved that the pa rticulars, contained on the said cheques, other than the signatures put on behal f of the account holder, were all in the handwriting of accused Biswajit Das and that one Mithu Roy Choudhury (PW17), an employee of LICI, Mirza Branch, had ide ntified, as an independent witness, the handwriting of accused Biswajit Das on t he six withdrawal cheques. 91. In his cross-examination, PW29 has clarified that the Branch Manager of the Central Bank of India, Mirza Branch, during the relevant time, was asked by him (PW29) and the Branch Manager had admitted that he had allowed the opening o f the account and that though PW29 had gone to the address, given in Ext.2, (i.e ., account opening form), he (PW29) did not find the person concerned. PW29 has also clarified that, as per Ext.2, there were lapses, on the part of the bank a uthority, in opening of bank account inasmuch as the person, who opens an accoun t, has to be present in the bank and has to put his signature before the bank Ma nager; but, in the present case, this was not done and, as such, CBI, upon inves tigation, recommended for departmental action against the erring bank officers. 92. PW30 (Sri A.K. Singh) has deposed that in the year 2005, he was in the e stablishment of Government Examiner of Questioned Documents, Kolkata (in short, GEQD), Asstt. GEQD and he very carefully, thoroughly and scientifically examined the original disputed documents relating to this case. On comparing with the re levant specimen writings of four persons and, on the basis of similarities and d issimilarities, PW30 came to the following findings: (cid:28)(1) 1 to S144 in Ext.10 does not write the red enclosed signatures similarly stamped and marked as Q 34, Q 37 in Ext.9 Q.39, Q.40, Q.41, Q.46, Q.49 in Ext.2, Q.51 i n Ext.21, Q.54 Q.55 in Ext.4, Q.58, 59 in Ext.5, Q.63, Q.64 in Ext.7, Q.68, 69 I N Ext.6, Q.73 in Ext.8, Q.77 to 79 in Ext.9. (2) The person who wrote the blue enclosed writing stamped and marked as S.72 to S.103 in Ext.22 also wrote the red enclosed writings similarly stamped and mark ed as Q33 to Q37 in Ext.3, Q.38 to 41 in Ext.2, Q.44 to 50 in Ext.2, Q.51 in Ext .21, Q.54 to 56 in Ext.4, Q.58 to 61 in Ext.5, Q.62/1 in Ext.7, Q.63 to 66 also in Ext.7, Q.68 to 70 in Ext.6, Q.72 to Q.75 in Ext.8, Q.77 to 81 in Ext.9, Q.82 and 83 in Ext.16 and Q.84 in Ext.3. (3) The person who wrote the blue enclosed writings stamped and marked as S1 to S71 in Ext.20 also wrote the red enclosed writings similarly stamped and marked as Q.53 in Ext.4, Q.57 in Ext.5, Q.62 in Ext.7, Q.67 in Ext.6, Q.71 in Ext.8 and The person who wrote the blue inked signatures stamped and marked as S14 Q.76 in Ext.9. By cross-examining PW30, nothing could be elicited by the defence to sho Ext.41 is the report of PW30 and Ext.41/1 is his signature. (cid:29) After completion of examination of the documents, opinion was sent to SP 93. , CBI, ACB, vide letter No.DXC/321/2005/1502, dated 28.09.2005, which bears the signature of M.L. Sharma, the then GEQD, Kolkata, whose signature has been prove d by PW30 as Ext.41/3. 94. w that his report is incorrect and/or cannot be relied upon. 95. The above discussion of the evidence on record brings me to the evidence of PW7, who came to be posted to the Divisional Office of the LICI, Guwahati Di vision. According to the evidence of this witness, he was ordered by the then S enior Divisional Manager (PW5), in September, 2003, to investigate the false dea th claims, which, according to the newspaper reports, had been made and insuranc e money realized. It is in the evidence of PW7 that he had made investigation o n two insurance policies, both in the name of Phatik Thakuria. It is also in th e evidence of PW7 that though he had been entrusted with the enquiry, he could n ot make any investigation, because the basic documents could not be furnished by LICI Office and, later on, B. J. Choudhury and A. K. Bhowmik had been entrusted by the Divisional Office to investigate into the matter and, accordingly, they had submitted their report. In terms of the said report, which PW7 had gone thr ough, Phatik Thakuria was alive, though his death claim had already been settled . 96. 97 The above evidence of PW7 remains undisputed in his cross-examination. According to the evidence of PW25, he was the Senior Divisional Manager, at the Divisional Office, Guwahati Division, of the LICI from May, 2002 to May, 2005. The evidence of this witness is that in the month of March, 2003, he came across a newspaper report regarding some fraudulent transactions at LICI, Mirza Branch, regarding death claims and, at the same time, an employee of the LICI r eported to him that a person, whose death claim had been settled, appeared in th e office and since he knew the person, people in the office got alarmed and that he (PW25), thereafter, directed a preliminary enquiry by one of his officers an d, upon enquiry, the officer reported that something wrong was going on at LICI, Mirza Branch, and, thereafter, he (PW25) directed two other officers to go thro ugh all the cases of fraudulent payments made by the LICI, Mirza Branch. 98. PW25 has explained that there are two types of death claims in LICI. One is early claim and the other is non-early or normal claim. When death of the po licy holder occurs within two years from the date of commencement of the policy, then, it is called early claim and the early death claims are on their watch li st. 99. According to the evidence of PW25, when he received the full enquiry rep ort, he found that people, other than employees of the LICI, were also involved in fraudulent death claims and the payments made in respect thereof and he, ther efore, in consultation with the Chief Vigilance Officer of LICI, lodged a compla int with the CBI, the said complaint being Ext.34. PW25 has identified his signa ture, on the second page of the said complaint, as Ext.34/1. 100. According to the evidence of PW15, he worked as an Assistant Administrat ive Officer at LICI, Mirza Branch, from October, 1997, to October, 2002. This wi tness has given, in detail, the procedure to be followed for settling the claim of the sum of money assured under any insurance policy. This witness has deposed that Ext. 21 is a cheque of the Central Bank of India, dated 28-09-2000, for an amount of Rs. 1,67,583/- issued in favour of Bina Thakuria, her Account No. bei ng 9582 of the Central Bank of India, Mirza Branch, which, we have already indic ated above, is a forged and fictitious account. 101. In his evidence, PW15 has clarified that having gone through all the doc uments, cheques were issued to Smt. Bina Thakuria and that the same were handed over to Kameswar Boro, Branch Manager, LICI, Mirza Branch. This witness has expr essed his ignorance by saying that he does not know the person to whom Kameswar Boro handed over the said cheque. This witness has also clarified that they issu ed the said cheque, in good faith, without verifying the original signature, whi ch had been put in the LICI policy. This witness has further clarified that Bina Thakuria did not come to him personally to collect the said cheque and that he did not know her and that after disbursement of the cheque, the docket file of t he relevant insurance policy was kept in the safe custody of the Policy Servicin g Department. There was neither any effective cross-examination of PW15 nor was his evidence, on material aspects, was denied. 102. PW17 has deposed that he joined the LICI, Mirza Branch, in May, 2007, an d was posted in Death Claim Section of the said Branch. This witness has describ ed the procedure for settlement of death claim in terms of the LICI manual. 103. In his cross-examination, PW17 has clarified that he has known Biswajit Das as Development Officer, LICI, Mirza Branch, and he is acquainted with the ha ndwriting of Biswajit Das, because he worked with Biswajit Das. After going thro ugh the cheques, i.e., Exts. 4 to 9, PW17 has deposed that all these cheques wer e written by accused Biswajit Das. 104. as not even denied that Exts. 4 to 9 are in his handwritings. Situated thus, it becomes more than abundantly clear that accused-appell 105. ant, Biswajit Das, was the one, who had filled up the bearer cheques, in questio n, namely, Exts. 4 to 9, which were shown to have been issued by Bina Thakuria ( PW24) and that all these cheques were forged ones and, on the strength of these cheques, diverse sums of money had been withdrawn by accused Dwijen Thakuria. 106. The explanation of accused Biswajit Das, as regards writing of the said cheques, is that accused Dwijen Thakuria approached him with the said cheques an d as accused Dwijen Thakuria’s hand was trembling, he filled up the said cheques . In his cross-examination, on behalf of accused Biswajit Das, this witness (PW1 7) has further claimed that he knows the handwriting of Biswajit Das. 107. What is important to note in the evidence of PW17 is that according to h im, all the cheques (Exts. 4 to 9), were issued by a person, in the name of Bina Thakuria, and the amounts, mentioned in the cheques, were received by Bina Thak uria and Dwijen Thakuria and that all these cheques were issued as self or beare r cheques. In fact, it is of immense importance to note that accused Biswajit Das h 108. The evidence of PW19 is that Kameswar Boro, the then Branch Manager, LI CI, Mirza Branch, had taken from this witness (PW19) the dispatch register, but, thereafter, Kameswar Boro never returned the dispatch register and, in this reg ard, he (PW19) wrote a letter to Kameswar Boro. It is the evidence of PW10 that he had sent the cheque of Bina Thakuria by registered post with AD, but he never saw the acknowledgement receipt thereof and that he does not recollect or know whether Bina Thakuria received the cheque or not. What emerges from the discussion of the evidence on record is that the t 109. wo accused-appellants, namely, Dwijen Thakuria and Biswajit Das, went to the hou se of Phatik Thakuria and took away his two insurance policies along with the pr emium payment receipts on the pretext of upgrading the said policies, wherein Bi na Thakuria (PW24) was the nominee. Thereafter, accused-appellant, Dwijen Thakur ia, fraudulently obtained death certificate, in the name of Phatik Thakuria, in the manner as I have discussed above, and, on the basis of the claim, so raised, projecting Phatik Thakuria as having died, the claim was passed and a cheque wa s issued in the name of Smt. Bina Thakuria (i.e., the nominee of Phatik Thakuria in respect of the said two insurance policies), which was deposited in the fict itious account of Bina Thakuria (PW24), who had no knowledge about the said acco unt, the said account having been opened at the Central Bank of India, Mirza Bra nch, by accused Dwijen Thakuria and, in this regard, accused Dwijen Thakuria had acted as the introducer of the person, whom the two accused-appellants had proj ected as Bina Thakuria. Following the opening of the account and, on the cheque , issued by the LICI, having been deposited therein, cheques of various sums of money were shown to have been issued by Bina Thakuria and the amounts, covered b y the cheques, were withdrawn by the accused-appellant, Dwijen Thakuria, and tha t all the said cheques were filled up by the accused-appellant, Biswajit Das. 110. There is, thus, overwhelming evidence on record fastening the accused-ap pellant, Biswajit Das, in the offence of criminal conspiracy and the offence of criminal misconduct. 111. Considering the fact that the accused-appellant, Biswajit Das, was a pub lic servant, who was also liable for punishment, learned trial Court has rightly convicted him under Section 13(1)(d) read with Section 13(2) of the PC Act, 198 8. Though accused-appellant, Dwijen Thakuria, has adduced evidence to show that he was not LICI agent, the fact of the matter remains that the evidence on reco rd reveals that his wife was an agent of the LICI and he, admittedly, worked on behalf of his wife, and the people generally knew him as an agent of LICI. Though Mr. P. Bora, learned counsel, appearing for the accused-appellant 112. , has submitted that accused-appellant, Biswajit Das, has explained the circumst ances, whereunder he happened to fill up the cheques, and has relied on the deci sions, rendered in the case of Baiju Baby and Ors. vs. State of Arunachal Prades h and Ors., reported in 2009 (1) GLT 405, and Jayanta Kalai and Ors. vs. State o f Tripura, reported in 2013(2) GLT 450, it is noteworthy that the evidence, whic h has been adduced against accused-appellant, Biswajit Das, remained unshaken an d, in the face of such unshaken evidence, his explanation, that the he merely fi lled up the cheques, in question, does not hold water, particularly, when accuse d-appellant, Biswajit Das, miserably fails to shake the evidence to the effect t hat he, along with accused, Dwijen Thakuria, had gone to the house of Phatik Tha kuria and took away Phatik Thakuria’s two insurance policies, wherein Bina Thaku ria (PW24) was nominee, on the pretext of upgrading the policies, and never retu rned the policies and it was the sum, assured under the said two policies, which came to be deposited in the fictitious account of Bina Thakuria, opened by Dwij en Thakuria, and the cheques were written by none other than accused-appellant, Biswajit Das, for the purpose of withdrawing the money and the money was accordi ngly withdrawn from the said account by accused-appellant Dwijen Thakuria. 113. Because of what have been discussed and pointed out above, this Court do es not notice any infirmity, legal or factual, in the findings of guilt, reached against the two accused-appellant by the learned trial Court. The impugned con viction as well as the sentences, which have been passed against accused-appella nt by the judgement, under appeal, do not, therefore, call for any interference in appeal. 114.
Decision
In the result and for the reasons discussed above, both the appeals fail and the same shall accordingly stand dismissed. 115. The bail bonds of the two accused-appellants are hereby cancelled and th eir sureties are discharged. Both the accused-appellants are hereby directed to surrender, forthwith, in the Court of the learned Special Judge, CBI, Guwahati, for the purpose of undergoing the sentences of imprisonment passed against them. 116. Send back the LCR.