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2018 DIGILAW 79 (GAU)

Md. Moinuddin Ahmed v. State of Assam

2018-01-17

HITESH KUMAR SARMA

body2018
JUDGMENT & ORDER : 1. This criminal appeal, filed under Section 374 (2) of the Cr.PC, challenging the judgment dated 14.5.2009, passed in Special Case No. 10 (A)/2004, by the learned Special Judge, Assam, Guwahati, convicting the accused-appellant under Section 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act.) and sentence him to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 5,000/- with a default clause. 2. The fact leading to the case is that the Su- Divisional Magistrate, Hojai, Sankardevnagar, Sri Alok Khare, IAS, lodged an FIR on 17.1.1995 in the Sankardevnagar Police Station to the effect that the Krishna Cinema Hall of Hojai Town was closed down for non-renewal of its license and for non-payment of Charity money. The accused-appellant who is the owner of the said Krishna Cinema Hall, visited him on 16.1.1995, and told him that he had deposited the entire charity money and had also executed an affidavit seeking permission to allow him to run the Cinema Hall pending renewal of the license, which request was responded in negative by the informant, aforesaid. At that point of time, the accused- appellant told him that he was willing to spend money for getting interim order and then the informant, asked him as to when he could give money to which the accused-appellant responded saying that he would bring the money on 17.1.1995. Accordingly, on 17.1.1995, the accused-appellant visited the chamber of the informant at about 12 noon and offered him Rs. 4,000/-, and at that point of time, he was caught while attempting to bribe the informant by the in-charge of the Sankardevnagar Police Station, in presence of Sri S.K. Das, Executive Magistrate along with one Peon Lakhi and PSO Koch. 3. On receipt of the FIR, Lanka Police Station registered a case, investigated into it, collected evidence, and finally, laid the charge-sheet against the accused-appellant under Section 165 (A) of the IPC read with Section 12 of the PC Act. 4. A formal charge against the accused-appellant was framed under Section 12 of the PC Act, to which the accused-appellant pleaded innocence, and hence, the trial commenced. 5. The prosecution examined as many as 8 (eight) witnesses whereas defence examined 3 (three) witnesses. 6. 4. A formal charge against the accused-appellant was framed under Section 12 of the PC Act, to which the accused-appellant pleaded innocence, and hence, the trial commenced. 5. The prosecution examined as many as 8 (eight) witnesses whereas defence examined 3 (three) witnesses. 6. The statement of the accused-appellant was recorded under Section 313 of the Cr.PC, in which he denied the allegations levelled against him. 7. It has been specifically submitted in his statement recorded under Section 313 of the Cr.PC that he brought the money for payment of the charity money as well as the license fees as his Cinema Hall was closed for non-payment of the charity money and non-renewal of the license. He came for a discussion to the chamber of the informant on the previous day of the date i.e. on 16.1.1995 and on the date of occurrence i.e. on 17.1.1995, he came with the money for the payment of the charity money as well as the license fees. 8. I have heard Mr. B. Gogoi, learned counsel for the accused-appellant as well as Mr. B.J. Dutta, learned Additional Public Prosecutor for the state respondent No. 1. 9. I have also meticulously examined the evidence on record adduced by both sides. 10. The evidence of PW7/informant is that, on 17.1.1995, the accused-appellant went to his chamber to bribe him, and then, he, in presence of Executive Magistrate, S.K. Das, PSO Koch and one Peon Lakhi, caught the accused-appellant. Such evidence of the PW7/informant receives no corroboration from the PW1, who is the Executive Magistrate, S.K. Das, referred to by the PW7 in his evidence as well as in the FIR. This PW1 states in his evidence that he was only told by the informant/PW7 that the accused-appellant came to bribe him for which he was caught, meaning thereby, that apprehending of the accused- appellant did not take place in his presence and rather he was only told by the PW7 about attempt of the accused-appellant to bribe him of which he did not have independent knowledge. So, the core issue of attempting to bribe the PW7 or abetting him to take bribe by the accused-appellant is not established by the evidence of PW1, who, according to PW7 was present at the relevant time of occurrence. So, the core issue of attempting to bribe the PW7 or abetting him to take bribe by the accused-appellant is not established by the evidence of PW1, who, according to PW7 was present at the relevant time of occurrence. His evidence makes it appear that he was called to the chamber of the informant/PW7 only after the accused-appellant was apprehended. 11. PW2 is the peon of the Office of the Sub-Divisional Magistrate, Hojai, who is a witness to the seizure, but, in his evidence, he has categorically stated that he did not witness the alleged occurrence of attempting to bribe the informant/PW7 by the accused-appellant, and as such, his evidence is not implicating the accused-appellant. 12. PW3 is the person who is named in the FIR itself by the PW7 as witness to the occurrence. It is found from his evidence that he saw the accused-appellant offering bribe to the informant/PW7. But, the statement in the FIR itself shows that he was called by the PW7/informant, meaning thereby, only after offering alleged bribe by the accused-appellant, this witness appeared at the place of occurrence, and therefore, logically he could not have seen the accused-appellant offering the bribe to PW7/informant. That apart, his such evidence is not corroborated by the evidence of PW1 and PW2, who, as per the statement made in the FIR, were supposed to be readily present at the place of occurrence at the time of apprehending the accused-appellant by the informant/PW7 with the help of the in-charge of Sankardevnagar Police Station. 13. PW4, Police Officer, whose evidence is of routine nature as regards submission of the charge-sheet. He even did not investigate the case. 14. PW6, the Investigating Officer, is heard saying in his evidence that on being asked by the informant/PW7, he arrived in his office chamber in civil dress and found the accused- appellant offering bribe to him and then the accused-appellant was caught. 15. But, the evidence of DW1 makes it appear that they used to pay the charity money in the Office of the Sub-Divisional Magistrate (SDO), Hojai, in respect of their Cinema Hall, and after a discussion on the previous day, he went next day, i.e. on the date of occurrence, to the Sub-Divisional Magistrate (SDO), for making payment of the charity money when he was allegedly caught. On the basis of the evidence on record, as aforesaid, it appears that the allegation is in respect of offering an amount of Rs.4,000/- as bribe to the informant/PW7 whereas the stand taken by the accused-appellant is that he went to the PW7/informant on the previous day of the date of occurrence for a discussion as regards payment of the charity money as well as the renewal of his license and at the advice of PW7/informant, next day he went there with the money for payment of charity charge when he was caught. 16. The evidence of the witnesses could not make it succinctly clear that, in fact the accused-appellant offered bribe to the PW7/informant and rather there is an admission that the charity charge is paid in the Office of the Sub-Divisional Magistrate, Hojai. The accused- appellant went to the informant/PW7 for payment of charity money as discussed with him is also an admitted position. Therefore, the allegation of abetment to take bribe does not appear to have been substantiated. 17. So, the evidence on record, as aforesaid, does not bring the allegation made against the accused-appellant under the purview of Section 12 of the PC Act, and as such, in the absence of any specific proof there for, this court cannot hold that the alleged offence under Section 12 of the PC Act is attracted in this case. 18. That being so, the judgment rendered by the learned trial court of Special Judge, Assam, Guwahati, holding the accused-appellant guilty of commission of offence under Section 12 of the PC Act appears to have not based on evidence on record, and therefore, requires to be interfered with. 19. Accordingly, the appeal is allowed. 20. Send down the LCR along with a copy of this judgment.