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2018 DIGILAW 131 (GAU)

Bhagirath Kalita v. State of Assam

2018-01-25

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : 1. This is an appeal filed under Section 374 (2) of the Cr.P.C. challenging the judgment and order, dated 24.12.2008, passed by the learned Special Judge, Assam, in Special Case No. 10/2001 convicting and sentencing the accused-appellant to rigorous imprisonment for 6 (six) months under Section 120 (B) of the IPC and further sentencing him to rigorous imprisonment for 1 (one) year and to pay a fine of Rs. 3,000/- on each count for offences under Section 409/420 of the IPC with a further sentence to rigorous imprisonment for 1 (one) year and to pay a fine of Rs. 25,000/- with a default clause under Section 13 (1) (c) of the Prevention of Corruption Act (hereinafter referred to as the PC Act) . The sentences are ordered to run concurrently. 2. The fact leading to the case is that, the informant, Inspector of Police, Sri Chandra Kanta Kalita lodged an FIR on 01.03.1993 with the Vigilance Police Station, Dispur, Assam that on an enquiry made by the State Vigilance Commission vide SVC Enquiry No. 55 (986) it was revealed that during the financial year 1988-1989, Rs. 5,92,050/- was sanctioned by the Director Dairy Development Department, Government of Assam, Khanapara out of the total grant of Rs. 17,00,000/- under the Flood Damage Repair grant as released by the Government of Assam, Revenue (G) Department for relief and rehabilitation and restoration of damage caused by the flood in 1988. It was revealed in the said enquiry that an amount of 5,72,050/- was drawn against RC bill No. 1,2 and 3, T.V. No. 6, 7 and 8, dated 27.03.1989 from Dispur Treasury, without entering the same into Bill Transit Register by Dr. Golok Ch. Saikia, the then Superintendent of Town Milk Supply Scheme. The bills aforesaid were prepared by the Accountant, Sri Bhagirath Kalita (present accused-appellant) and the amount so drawn was not entered into the cash book and the accused Dr. Golok Ch. Saikia paid a sum of Rs. 4,22,703/- up to 24.07.1989 for Flood Damage Relief works of the cash balance in hand as per cash book and accordingly the aforesaid drawal was criminally misappropriated with the help of the present accused-appellant, the then Accountant of the aforesaid department. The amount misappropriated was Rs. 5,61,827/-. Golok Ch. Saikia paid a sum of Rs. 4,22,703/- up to 24.07.1989 for Flood Damage Relief works of the cash balance in hand as per cash book and accordingly the aforesaid drawal was criminally misappropriated with the help of the present accused-appellant, the then Accountant of the aforesaid department. The amount misappropriated was Rs. 5,61,827/-. The enquiry report aforesaid named the accused-appellant and Aminur Rahman of the same department along with some others as accused in the case. 3. On receipt of the FIR, the Chief Ministers Special Vigilance Cell Police Station registered a case, investigated into it, collected evidence, and on completion of the investigation, laid charge-sheet against the accused-appellant and the co-accused under Sections 120 (B)/420/409 of the IPC read with Section 13 (2) and 13 (1) (c) and (d) of the PC Act. 4. After exhausting all the required legal formalities, the learned trial court framed a formal charge against the accused-appellant and other co-accused under Section 120 (B) /420/409 of the IPC read with Section 13 (1) (c) of the PC Act to which the accused persons pleaded not guilty and therefore the trial commenced. 5. During the trial, the prosecution examined as many as 13 (thirteen) witnesses and the defence examined one witness. 6. After closure of the prosecution evidence, the statement of the accused-appellant and other co-accused was recorded by the learned trial court under Section 313 of the Cr.P.C and in their such statements, they denied the allegations leveled against them by the prosecution. 7. I have heard Mr. D Talukdar, learned counsel for the accused-appellant as well as Mr. BJ Dutta, learned Additional Public Prosecutor, appearing for the State of Assam. 8. The learned counsel for the accused-appellant has submitted, with reference to paragraph 27 of the judgment passed by the learned trial court, that conviction of the accused-appellant is based on inference drawn by the learned trial court as it has been specifically indicated in the aforesaid para 27 of the judgment itself that the documentary evidence regarding preparation of bills, encashment thereof and as to whether they were entered into the cash book, etc were not produced in the Court. The allegation is of misappropriation of money by the accused-appellant and other co-accused. The accused- appellant was the Accountant of the department involved in this case and an amount of Rs. The allegation is of misappropriation of money by the accused-appellant and other co-accused. The accused- appellant was the Accountant of the department involved in this case and an amount of Rs. 5,61,827/- was misappropriated by the accused persons including the present accused-appellant and others as they had the said amount drawn from the Dispur Treasury on producing false bills which were not entered in the relevant records of accounts of the department by the present accused-appellant and other co-accused. 9. The evidence on record shows that except the mere allegation in the FIR and statement of few of the accused persons in their evidence that the aforesaid amount was drawn vide RC bill No. 1, 2 and 3, T.V. No. 6, 7 and 8, dated 27.03.1989, there is nothing to show that the bills were really prepared by the present accused-appellant or it was his responsibility to enter the same in the relevant record of the accounts. Even if it is presumed for the sake of argument that it was his responsibility to put the same in the register yet in the absence of production of those records of the accounts, such as the bills, cashbook, bill register, etc, it cannot be presumed that those were not entered in the aforesaid records and were prepared by the accused-appellants. 10. The learned trial court made an observation in para 27 of the aforesaid judgment that the records were not produced as evidence and inferred commission of the offence by the accused-appellant. But, the accusations leveled against the accused-appellant and other co-accused makes it clearly appear that the accusation itself is based on those registers/records bills, and non-production of those records/registers, bills itself amounts to cracking the foundation of the prosecution case. 11. It is a settled principle of law that a case has to be proved against the accused beyond reasonable doubt and there cannot be inference for holding the accused-appellant guilty of commission of a particular offence. 12. Therefore, this Court is in agreement with the submission made by the learned counsel for the accused-appellant and holds that the decision rendered by the learned trial court convicting the accused-appellant under the aforesaid provisions of law is not based on correct appreciation of evidence on record, and therefore requires interference by this Court. 13. 12. Therefore, this Court is in agreement with the submission made by the learned counsel for the accused-appellant and holds that the decision rendered by the learned trial court convicting the accused-appellant under the aforesaid provisions of law is not based on correct appreciation of evidence on record, and therefore requires interference by this Court. 13. Therefore, the appeal is allowed and the judgment and order, dated 24.12.2008, passed by the learned Special Judge, Assam, in Special Case No. 10/2001 is set aside. 14. Send down the LCR, if any along with a copy of this judgment.