High Court
Case Details
Crl.A. 139/2011 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI JUDGMENT & ORDER (ORAL) This is an appeal against the judgment and order, dated 13.07.2011, passed, in S pecial Case No. 27/2009, by the learned Special Judge, Central Bureau of Investi gation (in short, ’CBI’), Assam, Guwahati, whereby the appellant, Md. Pashan Ali , stands convicted under Section 7 and also under Section 13(1)(d) read with Sec tion 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to a s the ’PC Act, 1988’) and sentenced, for his conviction under Section 7 of the P C Act, 1988, to undergo rigorous imprisonment for a period of 2 (two) years and pay fine of Rs. 10,000/- and, in default of payment of fine, suffer rigorous imp risonment for a further period of 3 (three) months and also to undergo, for his conviction under Section 13(1)(d) read with Section 13(2) of the PC Act, 1988, r igorous imprisonment for 2 (two) years and pay fine of Rs. 10,000/- and, in defa ult of payment of fine, suffer rigorous imprisonment for 3 (three) months, both the sentences having been directed to run concurrently. 2. The case of the prosecution, as surfaced at the trial, may, in brief, be described as under: (i) One Md. Nijamuddin went, on 18.11.2009, to Mayanbari Sub Post Office, carryi ng with him duly filled up requisite forms, numbering 32, with signatures of the applicants concerned, who were beneficiaries of Job Cards under NREGA Scheme. On presenting the papers aforementioned to the accused, who was Sub Post Master of the said Sub Post Office, the accused demanded Rs. 50/- each for opening new accounts of the said beneficiaries of NREGA Scheme. The said filled up forms in cluded the form of the said Nijamuddin’s wife, Aklima Khatun. In other words, t he said post master, who is, now, the appellant, had, allegedly, told the said N ijamuddin that unless and until a sum of Rs. 50/- was given for opening of each account, no account for beneficiaries of the NREGA Scheme would be opened. At t he time, when the said Nijamuddin carried the said filled up forms to the said p ost office, he was accompanied by Md. Sohrab Ali and Shahjahan Ali, who, too, ha d no job cards in their names. (ii) On failing to make the said post master open the accounts, in favour of the said 32 job card beneficiaries of NREGA Scheme, without raising the demand for money, the said Nijamuddin lodged an Ejahar, in this regard, with the Superinten dent of Police, CBI, Anti Corruption Branch, Guwahati, and a case accordingly ca me to be registered against the accused. A trap was, then, planned by the Offic ers of the CBI to catch hold of the accused red handed. (iii) In accordance with the laid trap, the said Nijamuddin, accompanied by some officials of the CBI and two independent witnesses, went to the said post offic e and handed over a sum of Rs. 1,600/-, along with 32 numbers of application for ms for opening of accounts, and the accused took the said applications along wit h the money. No sooner had the accused put the application forms and the money aforementioned on his table, the CBI officials walked in, caught hold of the han ds of the accused and dipped his hands into two glasses, filled with chemical so lution and, on dipping the hands of the accused in the solution, the colour of t he solution turned pink, which established that the money, which had been given by the CBI officials and carried by the said Nijamuddin and offered to the accus ed, had been accepted by the accused as an illegal gratification. Thereafter, t he money and the application forms were seized, the accused was arrested and, in course of time, a charge-sheet, under Section 7 and also under Section 13(1) (d ) read with Section 13(2) of the PC Act, 1988, was laid seeking prosecution of t he accused. At the trial, when charges, under Section 7 and under Section 13(1)(d) r 3. ead with Section 13(2) of the PC Act, 1988, were framed against the accused, he pleaded not guilty thereto.
Legal Reasoning
4. In support of their case, prosecution examined altogether 13 (thirteen) witnesses. The accused was, then, examined under Section 313 Cr.PC and, in his examination aforementioned, the accused denied that he had committed the offence s, which were alleged to have been committed by him, the case of the defence bei ng that of denial and his plea being, briefly stated, thus: An amount of Rs. 1 ,600/- was handed over by the said Nijamuddin (PW1), along with 32 numbers of ap plication forms, for opening accounts in the name of 32 beneficiaries under the NREGA Scheme, but so far as the accused was concerned, he had never demanded any money, as alleged against him, and that he had merely accepted the application forms, which had been handed over to him by PW1 along with the said sum of Rs. 1 ,600/- for the purpose of opening the accounts by making a deposit of Rs. 50/- e ach in the names of the account holders inasmuch as many of the beneficiaries, u nder the NREGA Scheme, deposited their money, with the said post office, in orde r to gain interest @ 3.5% on the deposited amount, though, as a rule, no sum of money is required to be deposited for opening an account by a job card beneficia ry under the NREGA Scheme. No evidence was adduced by the defence. Having found the charges, framed against the accused, proved, the learne 5. d trial Court convicted the accused accordingly and passed the sentences against him as mentioned above. Aggrieved by his conviction and the sentences, which h ave been passed against him, the accused, as a convicted person, has preferred t his appeal. 6. I have heard Mr. A. Choudhury, learned counsel, appearing for the accus ed-appellant. I have also heard Mr. P. N. Choudhury, learned Standing counsel, C BI. While considering the present appeal, it needs to be borne in mind that 7. it is the case of the prosecution that as many as 32 application forms, seeking opening of accounts in the name of job card beneficiaries, under the NREGA Schem e, along with a sum of Rs. 1,600/-, were handed over to the accused-appellant by the informant, namely, Nijamuddin (PW1), on 20.11.2009, because the accused-app ellant had demanded, on 18.11.2009, a sum of Rs. 50/- for opening each account, when the informant, Nijamuddin, had gone to the said post office, on 18.11.2003 , with the duly filled up forms, which were 32 in numbers, including the applica tion form for opening of the account in favour of the informant’s wife, Aklima K hatun, and that he had been, at that point of time, accompanied by Sohrab Ali a nd Shahjahan Ali to the said post office. 8. The fact that 32 application forms for opening of the accounts, in quest ion, along with a sum of Rs. 1,600/- were received by the accused-appellant, on 20.11.2009, has not been disputed at the trial. What has been in dispute is the correctness of the counter-case of the defence, the case of the defence being, as already indicated above, that the accused had never demanded any money as bri be or illegal gratification and that the said sum of Rs. 1,600/- was given to hi m not as a bribe or illegal gratification, but to open the accounts of the 32 jo b card holders, under the NREGA Scheme, by making deposit of Rs. 50/- in the acc ount of each of the said 32 job card holders. 9. The fact, therefore, that the said sum of Rs. 1,600/- was found in the p ossession of the accused-appellant, while he was caught by the CBI officials, wo uld not prove the offence unless there is any unimpeachable and wholly convincin g evidence on record, proving beyond reasonable doubt, to the effect that the sa id sum of Rs. 1,600/- had been received by the accused-appellant as an illegal g ratification, pursuant to the demand, which the accused-appellant had, allegedly , made, on 18.11.2009, and not for opening of the bank accounts with a deposit o f Rs. 50/- each. 10. What is, now important to note is that the prosecution has examined the informant, namely, Najimuddin (PW1), as the sole witness with regard to the dema nd for money, which had, allegedly, been raised by the accused-appellant on 18.1 1.2009. 11. Let us, therefore, consider, first, the evidence of PW1 (Nijamuddin). T his witness’s evidence is that he went to the said sub post office for opening a ccount in the name of his wife, Aklima Khatun, and also in the names of other pe rsons and at that time, he (PW1) was accompanied by two persons, namely, Sohrab Ali and Shahjahan Ali, the total number of accounts to be opened being 32 inasmu ch as there were as many as 32 job card holders, under the NREGA Scheme, whose a ccounts were required to be opened at the said post office, and when he (PW1) ap proached, on 18.11.2009, the accused-appellant for opening the accounts in the names of the said job card holders, the accused-appellant demanded Rs. 50/- each for opening the said 32 accounts, though no money was required to be deposited at the time of opening of account for a job card holder under the NREGA Scheme. 12. Considering the fact that PW1 was, admittedly, accompanied by Md. Sohrab Ali and Shahjahan Ali, Md. Sohrab Ali and Shahjahan Ali ought to have been exam ined by the prosecution, as witnesses, to lend corroboration to the sole testimo ny of PW1. However, neither Md. Sohrab Ali nor Shahjahan Ali has been examined, in the present case, as a witness by the prosecution and no explanation has been offered by the prosecution, in this regard, nor is there any explanation discer nible from the evidence on record for their non-examination. 13. In the circumstances indicated above, one has no option but to draw an adverse inference against the prosecution, the inference being that had Md. Sohr ab Ali and Shahjahan Ali been examined as witnesses, they would not have support ed the case, which PW1 has set up, and it was for this reason that both these wi tnesses were not examined by the prosecution. 14.
Legal Reasoning
Coupled with the above, PW1 claims that, on 18.11.2009, when he had gone to the said post office, he had carried with him account opening forms for 32 j ob card holders, which included his wife, Aklima Khatun. Surprisingly enough, h owever, though, on 20.11.2009, too, PW1 carried 32 account opening forms for 32 job card holders, under NREGA Scheme, the application forms did not, admittedly, include the application of Aklima Khatun. The question, as to who had replaced Aklima Khatun as a job card holder, has remained unanswered by the evidence on record. This is yet another deficiency with which suffers the case of the prose cution, particularly, when one has to rely upon, entirely on the sole testimony of PW1, with regard to what had happened, on 18.11.2009, at the said post office , between the informant (PW1), on the one hand, and the accused-appellant, on th e other. 15. Coming to the occurrence of 20.11.2009, it may be noted that, according to PW1, he went to the said post office, on 20.11.2009, at about 2.15 PM, and ap art from the CBI officials, two more persons were present as independent witness es, the said two persons being one Shri Tankeswar Das (PW3) and one Abdul Mazid (PW4). It is in the evidence of PW1 that he started talking to the accused and 16. told him that he had come to meet him along with the job cards and the money as instructed. 17. It is also in the evidence of PW1 that he handed over the said 32 number s of job cards to the accused for opening the accounts and since the accused had demanded, for opening the accounts, money, he (PW1) accordingly handed over Rs. 1,600/-, too, to the accused and, on receiving the said amount, the accused kep t the money below the job cards on the left side of his table and, immediately, thereafter, Md. Abdul Mazid (PW4) arrived there and, on receiving signal from Ab dul Mazid (PW4), the CBI team, which was standing outside, entered into the offi ce of the accused and caught hold of the hands of the accused and performed nece ssary chemical test by dipping the hands of the accused into two glasses filled up by chemical solutions, whereupon the colour of the solution turned pink. Close on the heels of the evidence of PW1, PW3 (Tankeswar Das), has depo 18. sed that, on entering into the said post office, he found the accused inside the post office and, then, PW1 went near the accused and had some sort of conversat ion with him and, then, the accused asked him (PW3) to sit and wait for a while and, after some time, Nijamuddin (PW1) again started conversation with the accus ed and the accused enquired whether he had brought the bribe money and the job c ards, whereupon Nijamuddin (PW1) gave the bribe money and the job cards to the accused and the accused accepted the bribe money and kept it inside the job card s on the left side of his table. 19. A close scrutiny of the evidence of PW1, on the one hand, and PW3, on th e other, shows that according to PW1, it was he (PW1), who had informed the accu Situated thus, it is clear that the evidence, given by PW4, is not only sed that he had come to meet the accused with the job cards and the money as ins tructed and took out Rs. 1,600/- for 32 job cards, at the rate of Rs. 50/- each, for opening accounts in the names of the said 32 job card holders, and handed o ver the said sum of Rs. 1,600/- to the accused; whereas PW3 claims that it was t he accused, who had enquired from PW1 if he (PW1) had brought the money and the job cards and it was, thereafter, that PW1 handed over the money to the accused and the accused kept the same inside the job cards and put the job cards with mo ney on his table at the left side. 20. Similarly, PW4, who is another independent witness, has deposed that on entering into the sub-post office, PW1 had a conversation with the accused and it was the accused, who had asked PW1 whether he (PW1) had brought the money and , thereafter, the accused took the money and kept the same inside the job cards, on his table; whereas, as I have already indicated above, according to PW1, it was he (PW1), who had informed the accused that he had come to meet him along wi th the job cards and also the money, as per instructions of the accused, and too k out the sum of Rs. 1,600/- and handed over the same to the accused. Notwithstanding the above version, which PW4 had presented before the Co 21. urt, in his examination-in-chief, he has twisted and turned his version of the o ccurrence, in his cross-examination, inasmuch as he has deposed, in his cross-ex amination, that it was the complainant (PW1), who had told the accused that he h ad brought all the things for opening the accounts and took out the money from h is pocket and handed over the money to the accused. 22. If the evidence, so given by PW4, is believed, then, it was not the accu sed, who had demanded the money; rather, it was PW1, who had handed over the mon ey. 23. self contradictory, but also contradictory to the evidence of PW3. 24. Considering the fact that it has not been disputed that Rs. 1,600/- had been received by the accused-appellant for opening 32 numbers of accounts in the names of 32 job card holders, under the NREGA Scheme, what is required to be de termined is whether the said amount had been received by the accused-appellant a s a bribe, which is alleged to have been demanded by him, on 18.11.2009, or it w as given to him by PW1 in the manner as described above. 25. In the circumstances indicated above, it was incumbent, on the part of t he prosecution, to prove that the accused had, indeed, demanded, on 18.11.2009, a sum of Rs. 50/- for each of the accounts to be opened against the job card hol ders. In this regard, however, though corroboration could have been offered wit h the help of the evidence of Sohrab Ali and Shahjahan Ali, prosecution, for som e unexplained reason, did not produce them. There is also no explanation as to why the said 32 application forms, which had been submitted to the accused, on 20.11.2009, by PW1, did not include the application form of PW1’s wife, Aklima K hatun, though, according to the evidence of PW1, when he had gone to the said po st office, on 18.11.2009, to open the accounts, which were as many as 32 in numb ers, the 32 application forms included the application form of his wife, Aklima Khatun. 26. In the absence of any corroborative evidence having been offered, though allegedly available, with regard to the fact that the accused had demanded ille gal gratification, on 18.11.2009, and when the evidence, given by the prosecutio n witnesses, as described above, are intrinsically contradictory and irreconcila ble in nature, it was wholly unsafe, on the part of the learned trial Court, to have implicitly relied on the evidence of PW1, PW3 and PW4 to hold the accused g uilty of having demanded and received illegal gratification. 27. Because of what have been discussed and pointed out above, this Court do es not find that the prosecution could have been held to have proved its case be yond reasonable doubt and, in the facts and circumstances of the present case, t he accused-appellant ought to have been accorded, at least, benefit of doubt. 28.
Decision
In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the accused-appellant and the sentence, passed again st him, by the judgment and order, under appeal, are hereby set aside. 29. The accused-appellant is hereby held not guilty of the offences, which h Bail bond of the accused-appellant is cancelled and his surety stands di e stands convicted of, and he is acquitted of the same under benefit of doubt. 30. scharged. 31. of. 32. With the above observations and directions, this appeal stands disposed Send back the LCR.