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2018 DIGILAW 266 (GAU)

ANIL GOGOI v. STATE OF ASSAM

2018-02-13

HITESH KUMAR SARMA

body2018
JUDGMENT/ORDER : 1. This is a criminal appeal, filed under Section 374 (2) of the Cr.PC, challenging the judgment and order, dated 5.11.2012, passed by the learned Special Judge, Assam, in Special Case No. 7/2011, convicting and sentencing the accused-appellant to undergo rigorous imprisonment for 3 years and to pay an fine of Rs. 10,000/- in default to undergo rigorous imprisonment for 6 months. 2. None appears for the accused-appellant on call. I have heard Mr. B.J. Dutta, learned Additional Public Prosecutor for the state respondent. 3. I have perused the impugned judgment and the record of the learned trial court including the evidence of the witnesses. 4. The fact leading to the prosecution case is that, on 17.9.2009, the Project Director of DRDA, Sivasagar, lodged an FIR with the officer-in-charge of Sivasagar Police Station to the effect that, after making an enquiry into the complaint, made by Smt. Gitali Sarma, he found that the Secretary of Salguri Gaon Panchayat, Sri. Anil Gogoi (accused-appellant) had taken bribe of Rs. 500/- from Smt. Biju Sarma at the time of drawing Rs. 19,000/- allotted to her under the IAY Scheme, from her bank account. The Enquiry Report was furnished along with the FIR which includes the statements of two witnesses. 5. On the basis of the FIR, the Sivasagar Police Station registered a case, being No. 440/2000 under Section 7 of the Prevention of Corruption Act (hereinafter referred to as "PC Act"), investigated into it, collected evidence, and finally, submitted charge-sheet against the accused-appellant showing him as absconder. 6. After exhausting all the required legal formalities, a formal charge under Section 7 of the PC Act was framed against the accused-appellant, to which he pleaded not guilty, and 7. In this case, the prosecution examined as many as 5 (five) witnesses and defence examined 2 (two) witnesses including the accused-appellant himself. 8. After closure of the prosecution evidence, statement of the accused-appellant was recorded, and in his such statement, he denied the accusation leveled against him. 9. Now, the point for determination is, whether the accused-appellant had taken gratification of Rs. 500/-, out of which Rs. 19,000/-, granted to her sister Smt. Biju Sarma for construction of her house under IACY Scheme. 10. I have scanned the evidence on record. 11. 9. Now, the point for determination is, whether the accused-appellant had taken gratification of Rs. 500/-, out of which Rs. 19,000/-, granted to her sister Smt. Biju Sarma for construction of her house under IACY Scheme. 10. I have scanned the evidence on record. 11. In the instant case, Smt. Gitali Sarma, examined as PW3, stated before the Project Director of DRDA, in her statement in writing that she accompanied Smt. Biju Sarma, her elder sister, for drawal of the sanctioning amount from the bank, and after drawal of the amount of Rs. 19,000/-, the accused-appellant asked for an amount of Rs. 500/- for necessary expenditure and he had taken one 500 rupee denomination note while the amount withdrawn from bank was being counted by her. PW2, who is the Executive Engineer of DRDA, made the enquiry at the instance of the Project Director, who is examined as PW1. The evidence of PW1 is that, he got a complaint from PW3 Gitali Sarma, and entrusted the enquiry to the PW2. The witnesses have stated that an amount of Rs. 500/- was taken by the accused-appellant from the aforesaid amount withdrawn from the bank by Smt. Biju Sarma, elder sister of PW3, Gitali Sarma. The evidence of all the witnesses makes it appear that the said amount was taken for certain expenditure by the accused-appellant which the accused-appellant had also admitted in his statement, recorded under Section 313 of the Cr.PC. None of the witnesses are heard saying that this amount was demanded by the accused-appellant as gratification. 12. In a case of the instant nature, offence under Section 7 of the PC Act, the demand and acceptance of gratification are required to be proved and the demand or acceptance of the gratification must be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in exercise of his official functions, favour or disfavour to any person in rendering or attempting to render any service or its service to any person. 13. In the instant case, what is most important is that Smt. Biju Sarma, from whom the accused-appellant allegedly demanded Rs. 500/- in connection with doing some favour to her as a reward therefor has not been examined by the prosecution. 13. In the instant case, what is most important is that Smt. Biju Sarma, from whom the accused-appellant allegedly demanded Rs. 500/- in connection with doing some favour to her as a reward therefor has not been examined by the prosecution. There is also no evidence, on record, to show existence of any of the ingredients of Section 7 of the PC Act has been brought in by the witnesses. But, the fact remains that the person from whom the money was obtained by the accused-appellant has not been examined in this case, and therefore, the evidence of PW1 and PW2 has no relevance for the decision of this case since they were not themselves knew about the alleged offence. 14. In the absence of any evidence, led by the prosecution, as to from whom the alleged bribe was taken, and in the face of the evidence on record that it was taken by the accused-appellant for some expenditure, prosecution has not been able to establish the constituents of offence under Section 7 of the PC Act. 15. In this connection, this court has also relied upon by the decision of the Honble Supreme Court, in the case of V. Sejappa vs. State by police Inspector Lokayukta, Chitradurga, reported in (2016) 12 SCC 150 , wherein also, it has been held that the demand and acceptance, in the case of the instant nature, are required to be proved by the prosecution. 16. As discussed above, both the aforesaid factors have not been proved by the prosecution in the absence of evidence of Smt. Biju Sarma from whom the money was allegedly demanded. Otherwise also there is no evidence that there was any gratification demanded by the accused-appellant. 17. Accordingly, the appeal is allowed, and the judgment and order, dated 5.11.2012, passed by the learned Special Judge, Assam, in Special Case No. 7/2011, is set aside. 18. Send down the LCR along with a copy of this judgment.