Research › Search › Judgment

Gauhati High Court · body

2007 DIGILAW 207 (GAU)

Rajendra Rai v. Central Bureau of Investigation

2007-03-14

P.G.AGARWAL

body2007
JUDGMENT P.G. Agarwal, J. 1. Criminal Appeal Nos. 268/2003, Criminal Appeal No. 269/2003 and Criminal Appeal No. 277/2003 have been heard analogously and disposed of by this common Judgment and Order as these three appeals have arisen out of the Judgment and Order dated 28.7.2003 passed by the Special Judge, Assam at Guwahati in Special Case No. 9 (CV2000 whereby the trial court convicted the accused appellants Under Section 120B, 420, 471 IPC r/w Section 13(1)(d), P.C. Act, 1988 and awarded different sentences and all the sentences were ordered to run concurrently. 2. Heard the learned Counsel for both sides. 3. The prosecution case in brief is that during the period 1985 to 1996 accused appellants were serving as Sub Inspectors, Line Inspectors, etc. The prosecution case is that all these accused persons pursuant to a criminal conspiracy, decided to cheat the Government in the Telecom Department and thereupon accused A-1 to A-6 fabricated false Experience Certificates in favour of accused A-7 to A-33 and these were approved by A-1 and using these certificates as genuine, accused A-7 to A-33 were shown as regular casual Mazdoors working in the Office of the BSNL during the period 1988-96 and thereafter they were given the status of TSM and paid as such. According to the prosecution, accused A-7 to A-33 were not serving as casual Mazdoors in view of the ban imposed and the Experience Certificates were forged documents. 4. During trial, the prosecution examined as many as 14 witnesses. The defence plea as seen from the trend of examination is that accused A-7 to A-33 were working as casual Mazdoors and as such, accused A-1 to A-6 issued experience certificates and these were counter signed by A-1 on verification. 5. We, thus, find that in the present case, there is no dispute at the Bar as regards issuance of experience certificates by accused A-1 to A-6 and counter signature thereupon by A-1. The fact that accused A-7 to A-33 received pecuniary advantage pursuant to the above experience certificates, is also not challenged or disputed before us. 6. In view of the above, the first point for consideration is whether accused A-7 to A-33 were serving/working as casual Mazdoors during relevant period under TSMs, under SDE(P), B. Chariali or not. 7. The fact that accused A-7 to A-33 received pecuniary advantage pursuant to the above experience certificates, is also not challenged or disputed before us. 6. In view of the above, the first point for consideration is whether accused A-7 to A-33 were serving/working as casual Mazdoors during relevant period under TSMs, under SDE(P), B. Chariali or not. 7. PW1 proved and exhibited experience certificates and as the experience certificates are not challenged, the evidence of this witness is not material. The prosecution came up with a plea that the accused persons were not serving or working as casual Mazdoors and that there was a ban for engagement of casual workers. So far the first part is concerned, the prosecution has not led any evidence regarding the factual aspect and although a number of witnesses were examined and these persons were serving under the TDM, Tezpur during the relevant period, none of these witnesses have stated a single word to the effect that they never saw these accused persons A-7 to A-33 working as casual workers or Mazdoors. 8. So far the circular providing for a ban on engagement of casual Mazdoors, the admitted position is that it was applied more in violation and casual mazdoors used to be engaged for taking care of contingency and emergent works. PW M.K. Gogoi has deposed that a circular was issued on 17.12.93 providing that persons who were engaged as casual workers from 1985 till June, 1988 may be given the status of TSM provided that they fulfill certain conditions. The said circular was applicable to whole of India and the prosecution has also accepted the above position modifying the earlier circular banning engagement of casual workers. 9. Ajit Kumar Sarkar (PW 7) has deposed that the TDE M.K. Gogoi had constituted a selection committee for conferment of TSM status on casual labourers. 10. Thus, we find that so far the selection committee consisting of A-1 to A-6 are concerned, was constituted by the competent authority to select and recommend the names of persons for conferment of the status of TSM and out of 32 candidates, the committee recommended the names of 27 candidates. The selection committee considered the experience certificates issued by A-1 to A-6. Md. I. Ahmed (PW-2) has deposed about the payment which is not under challenge in this case. The selection committee considered the experience certificates issued by A-1 to A-6. Md. I. Ahmed (PW-2) has deposed about the payment which is not under challenge in this case. Prosecution witness has deposed about the circular banning appointment of casual workers after 31.03.95. The said circular is not relevant for our purpose. Rajib Yadav (PW4) had granted sanction for prosecution and we find that the said sanction is not under challenge. 11. In this case, we find that Mr. M. Bhuyan, SDE (Cable) who constituted the selection committee for the purpose of examining the cases of 27 persons including A-7 to A-33 had not been examined and he has also not been arrayed as an accused and although the entire process was initiated by him, Mr. Bhuyan would have been the best person to say whether A-7 to A-33 were working as casual Mazdoors or not or as to what led him to constitute the committee to consider the cases of these accused persons. 12. So far the plea of the prosecution that the accused persons-A-7 to A-33 should not have worked as casual Mazdoors because of the ban imposed, it has not much basis, more so, in view of the circular which provides that the casual Mazdoors, who worked during the period 1985 to 1988, can be given the status of TSM on fulfillment of certain conditions which goes to show that in spite of the ban, casual Mazdoors used to be engaged every where in India. 13. As stated above, none of the prosecution witnesses has come forward to depose that although they were working under the TDM, Tezpur during the period 1985 to 1996, they never saw these accused persons A-7 to A-33 serving or working as casual Mazdoors in the capacity of Sub Inspector, Cable Splicer etc. and they have issued the experience certificates and they are before us as accused. 14. The main foundation on the basis of which the trial court has recorded the order of conviction is the Accounts Books and the system prevailing in the Telecom Department which was narrated by PW 8, the Chief Accounts Officer, TDM, Tezpur. He has deposed as follows: For execution of capital work and maintenance works of temporary advance were sanctioned to SDOs and Field Officer including JTO by head of the SSA. He has deposed as follows: For execution of capital work and maintenance works of temporary advance were sanctioned to SDOs and Field Officer including JTO by head of the SSA. Capital work means and signify execution of new works while maintenance means execution of day to day maintenance works. For execution of works man power is necessary. For execution of maintenance works employment of casual labour is necessary. The payment to the casual labourers were made out of the temporary advance given to the SDO concerned. Payment is made through LI, SI and JTO and CS to the casual labourers. All kinds of payments are made through ACG 17 including payment to the casual labourers. ACG should contain the signature of the payee and the payer. All expenditures made by LI, SI, CS and JTO etc. will be entered into in ACE 3 forms and it will be submitted to the SDO who will incorporate the same in ACE 2 accounts. ACE 2 accounts will contain the annexure like ACE 3 bills etc. Form ACE 2 accounts will be forwarded to accounts section for its scrutiny. The expenditure made through ACE-2 were finally adjusted in the cash book in the accounts section. All expenditure made through ACE-2 are to be kept in the accounts section for audit purpose. After one year of the audit the documents of accounts can be destroyed. All accounts including ACE-2 are stored by the department in the godown under a store incharge. SDE (general) is the store Incharge. Every documents maintained in the course of official business should be preserved. 15. The evidence of PW 8 has been reiterated by PW9, the Asstt Director, Establishment, Telecom Department. 16. In the present case, the prosecution has not produced the vouchers ACG 17 for the relevant period to show that in these vouchers, the names of the present accused appellants-A-7 to A-33 do not appear. These documents were vital documents to support the prosecution that no such payment was made to the accused persons during the relevant period as casual Mazdoors. 17. On the other hand, the prosecution has led evidence to show that the vouchers under ACG 17 were not available. These documents were vital documents to support the prosecution that no such payment was made to the accused persons during the relevant period as casual Mazdoors. 17. On the other hand, the prosecution has led evidence to show that the vouchers under ACG 17 were not available. Although no evidence has been led as to the reasons of non availability, the prosecution argued that although the Accounts under ACG 17 are not available showing the names of the accused persons, it must be presumed that the names of the accused persons do not appear in these accounts and the inference may be drawn against the accused persons. The trial court also accepted the above and held that when ACG 17 forms are not available in respect of A-7 to A-33, it must be deemed to have not worked as casual workers. We are unable to comprehend such a situation in a criminal trial. The burden is on the prosecution to establish the guilt and the prosecution may either lead direct evidence or indirect evidence. Moreover, there is no evidence on record to show that the accounts books/vouchers under ACG 17 were kept in the custody of the accused persons or that they were responsible for their safe custody and they have destroyed the same to screen out the evidence of criminal offence. 18. From the evidence of the prosecution witnesses, we find that there is another aspect of the matter also. The vouchers under ACG 17 are entered into ACE 3 forms and thereafter the amount is incorporated in ACE 2 accounts and finally adjusted in the cash book. Admittedly, the cash books from 1985 onwards are available and the prosecution could have produced these cash books or ACE 2 accounts to show that during the relevant period, no payment was made to any casual worker or Mazdoor. Further, the Government Department must have some audit to the accounts and audit report, if any could have been produced; but no document has been produced by the prosecution in support of their contention. 19. Merely because the prosecution utterly failed to trace out the ACG 17 vouchers and produce the same before the court, it can not be presumed by any stretch of imagination that no payment was made to the accused persons during the relevant period as casual Mazdoors. 19. Merely because the prosecution utterly failed to trace out the ACG 17 vouchers and produce the same before the court, it can not be presumed by any stretch of imagination that no payment was made to the accused persons during the relevant period as casual Mazdoors. The learned trial court fell in error in holding that the failure of the TDM Office to produce the record has no bearing in the matter and on the other hand, it can be inferred that TDM Office did not appoint any casual Mazdoor including A-7 to A-33. The trial court also observed that appointment of casual Mazdoor during the period 1995-1996 was misplaced and it was irrelevant. 20. We also find the trial court has placed much reliance on the evidence of B.K. Goswami (PW 3) who has deposed that during his period, ACG 17 vouchers for the period 1988 to February, 1996 were not available and he had joined in September, 1995 and worked till 3.11.98. The witness has further stated that despite the ban in the engagement of causal labourers, such engagement continued and labourers were engaged during 1985-88 and they were regularized. 21. The members of the selection committee appointed by M.K. Gogoi considered the cases of A-7 to A-33 along with other persons and on being fully satisfied about the genuineness of the cases, they recommended the cases of A-7 to A-33 for conferring the status of TSM. They have also deposed that they did not find any anomaly in respect of experience certificates and these experience certificates were issued on the basis of work done during the calendar year on the basis of ACG 17. Hence, if ACG 17 was considered by the selection committee while recommending the names of the accused persons, subsequent non production of documents, can not be held against the accused persons. 22. At this stage, we may have a look in the evidence of G.S. Mathur (PW 12) who has deposed that all the labourers mentioned in Ext. 1 to Ext. 27 were engaged and working under him. The evidence of PW 12 has been supported and corroborated by Promod Kr. Pathak (PW 13) who states that the casual workers mentioned in Ex. 2 to 10, 12, 20, 21, 23 and 24 were actually engaged during the relevant period. Both PW 12 and PW 13 were Supervising Officers. 1 to Ext. 27 were engaged and working under him. The evidence of PW 12 has been supported and corroborated by Promod Kr. Pathak (PW 13) who states that the casual workers mentioned in Ex. 2 to 10, 12, 20, 21, 23 and 24 were actually engaged during the relevant period. Both PW 12 and PW 13 were Supervising Officers. Their evidence strikes the final nail in prosecution coffin. 23. In a criminal trial, the burden is on the prosecution to establish the offence beyond all reasonable doubt. The distance between the accused 'may be guilty' and 'must be guilty' must be travelled by the prosecution and no conviction can be based on surmises and conjectures. 24. In the present case, we find that there is no reliable evidence to hold that accused A-7 to A-33 were not working as causal workers during 1985-88 or the experience certificates Ext. 1 to Ext. 27 issued by the accused A-1 to A-6 and counter signed by accused A-1 are forged documents. As the very foundation of the prosecution allegation is missing, we hold that this is a case of no evidence and the accused persons are entitled to acquittal. 25. In the result, the appeals are allowed. The impugned order of conviction and sentence is set aside and the accused appellants are acquitted and they are set at liberty forthwith. The accused appellants are on bail and as such, they need not surrender to their bail bonds. 26. Send down the records. Appeal allowed.