1

IN THE COURT OF SPECIAL JUDGE, ASSAM, GUWAHATI

Present : Sri Gautam Baruah, AJS, Special Judge, Assam, Guwahati.

SPECIAL CASE NO. 40/2012(Arising out of Dibrugarh PS Case No. 55/2009

u/s 7 of Prevention of Corruption Act, 1988)

STATE OF ASSAMVS.

Taufique Ali................. Accused Person

Date of hearing : 13.02.13, 02.04.13, 24.04.13, 28.01.14, 19.11.13, 28.02.14, 27.03.14, 08.07.14, 20.10.14, 21.11.14.

Date of statement of accused : 11.08.2014

Date of argument : 12.12.2014 & 17.12.2014

Date of Judgment : 24.12.2014

Result : Acquittal

Advocates for prosecution : Sri Joginder Singh, Sr. Advocate Ld. Special P.P. for the State, Smti. Nabasmita Gogoi Ld. Addl. Special P.P. for the State

Counsel for accused : Sri S. K. Lahkar Ld. Advocate

J U D G M E N T

1. The prosecution case as unfolded during trial is that

on 27.01.2009 one Madhurya Phukan lodged a complaint

before the Dy. Commissioner, Dibrugarh alleging that he is

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the registered owner of a passenger bus bearing

registration no. AS 06 D 2458 and when he went to the

office of the District Transport Officer (DTO), Dibrugarh to

obtain fitness certificate the dealing assistant of that office

Sri Taufique Ali demanded Rs. 500/(Rupees five hundred)

only as illegal gratification from him to obtain counter

signature of the DTO in the fitness certificate. Thereafter a

trap was laid on 30.01.2009 with the help of the Assistant

Commissioner Sri Virendra Mittal, Circle Officer Sri

Sarangapani Sarma and other police officers and the

accused Taufique Ali was caught redhanded while

accepting the bribe money. In this regard on 30.1.2009 Sri

Sarangapani Sarma, Circle Officer (E), Dibrugrah lodged

formal FIR before the O/C, Dibrugarh Police Station. After

receiving of the said FIR O/C, Dibrugarh Police Station

registered Dibrugarh PS Case No. 55/2009 u/s 7 of P.C.

Act, 1988 and entrusted the case to Mahendra Gogoi,

APS, Dy. S.P. (HQ), Dibrugarh for investigation and after

completion of investigation the police filed chargesheet u/s

7 of PC Act,1988 against accused Taufique Ali.

2. In course of time the accused made his appearance

in the court and he was allowed to go on bail. The accused

was furnished as per section 207 of Cr.P.C. free copies of

documents relied by the prosecution. After going through

the available records and after hearing both the parties

charge u/s 7 of Prevention of Corruption Act, 1988 has

been framed against the accused. The charge has been

read over and explained to the accused to which he

pleaded not guilty and claimed to be tried.

3. The prosecution in order to bring home the charge

against the accused has examined 8 nos of PWs. The 313

CrPC statement of the accused was recorded. The plea of

the accused was of complete denial and the defence has

examined 2 nos of DWs in support of his plea.

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4. POINT FOR DETERMINATION :

Whether on 27.01.2009 while working as dealing

assistant in the office of the District Transport Office(DTO),

Dibrugarh the accused Taufique Ali demanded Rs. 500/

( Rupees five hundred) only as gratification, other than

legal remuneration, from the complainant Sri Madhurjya

Phukan for obtaining counter signature of the DTO on the

fitness certificate regarding bus no AS 06/D-2458 and

whether on 30.01.2009 the accused Taufique Ali was

caught red handed while accepting the bribe amount of Rs.

500/( Rupees five hundred) only and thereby committed

an offence punishable u/s 7 of Prevention of Corruption

Act, 1988 ?

5. DECISION, DISCUSSIONS AND REASONS

THEREOF :-

6. I have duly heard the ld. Spl P.P. assisted by the ld.

Addl. Spl. P.P. I have also heard the ld. defence counsel in

length. I have carefully gone through the entire record , the

evidence brought into the record by both the parties, oral

and documentary. I have also carefully perused the

exhibits brought into the record.

7. The prosecution in order to prove its case has

examined 8 nos of PWs including the complainant,

informant, trap witnesses and the Investigating Officers,

and the defence has examined 2 nos of DWs in order to

disprove the prosecution case.

8. The allegation against the accused person is that he

demanded and accepted illegal gratification of Rs.500/

( Rupees five hundred) only from the complainant for

obtaining counter signature of the DTO on the fitness

certificate of the bus of the complainant on 30.01.2009

while he was serving as dealing assistant in that office.

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9. Charge has been framed against the accused u/s 7

of the Prevention of Corruption Act, 1988 which reads as

follows :- “ Whoever, being, or expecting to be a public

servant, accepts or obtains or agrees to accept or attempts

to obtain from any person, for himself or for any other

person, any gratification whatever, other than legal

remuneration, as a motive or reward for doing or

forbearing to do any official act or for showing or forbearing

to show, in the exercise of his official functions, favour or

disfavour to any person or for rendering or attempting to

render any service or disservice to any person, with the

Central Government or any State Government or

Parliament or the Legislature of any State or with any local

authority, corporation or Government company referred to

in clause (c) of section 2, or with any public servant,

whether named or otherwise, shall be punishable with

imprisonment which shall not be less than six months but

which may extend to five years and shall also liable to

fine.”

10. In order to bring home the charge u/s 7 of the

P.C.Act, 1988 the prosecution has to prove the following

conditions :

(1) that the accused person is a public servant or expected

to be a public servant on the date of offence;

(2) that the accused person accepted or obtained or agreed

to accept or attempted to obtain illegal gratification;

(3) for himself or for others;

(4) such gratification was not a remuneration to which the

accused was legally entitled;

(5) that the accused person accepted the gratification as a

motive or reward for:

(a)doing or forbearing to do an official act; or

(b)doing or forbearing to show favour or disfavour to

any person in exercise of his official function; or

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(c) rendering or attempting to render any service or

disservice to any person.

11. The condition no 3 and its subsequent conditions are

subject to the fulfillment of condition no 1 and 2. Once

the prosecution establishes that the accused government

servant has accepted or obtained or agreed to accept or

attempted to obtain illegal gratification other than legal

remuneration the Court can take u/s 20 of the P.C.Act,

1988 presumption that the accused person has accepted

or obtained or agreed to accept or attempted to obtain

the gratification as a motive or reward for doing or for-

bearing to do or showing favour or disfavour to any per-

son in exercise of his official function.

12. PW 1 Sri Madhurjya Phukan deposed in his examin-

ation in chief that in 2009 he was the registered owner of

a passenger bus bearing no AS 06 D 2458 and to

have its fitness certificate renewed he went to the Office

of the District Transport Officer,Dibrugarh on 27.01.09,

and after preparation of the fitness certificate by the Mo-

tor Vehicle Inspector (MVI) he went to the accused

Taufique Ali who was serving as Lower Division Assistant

in that office to get the fitness certificate counter signed

by the District Transport Officer (DTO) and then the ac-

cused person demanded Rs. 500/( Rupees five hundrd)

only to get the fitness certificate countersigned by the

DTO.

13. PW 6 Sri Cheniram Dutta deposed that on

30.01.2009 while he was working as S.I. of Police under

Dibrugarh Police Station he seized one 500 rupee cur-

rency note vide Exbt. 1 from the possession of the ac-

cused Taufique Ali of the office of the DTO, Dibrugarh.

14. The accused in his 313 CrPC statement has de-

scribed his occupation as Senior Assistant, District Trans-

port Office, Dibrugarh.

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15. “Public servant” has been defined u/s 2(c) of the

Prevention of Corruption Act,1988, amongst others, (i) any

person in the service or pay of the Government or remu-

nerated by the Government by fees or commission for the

performance of any public duty, etc etc.. is a public ser-

vant.

16. The above evidence , more particularly the 313

CrPC statement of the accused person clearly shows that

on the day of occurrence the accused Taufique Ali was

serving as a dealing assistant in the office of the DTO,

Dibrugarh, and as such he is a public servant within the

meaning of the Act.

17. The vital point pending before the Court is whether

on 30.01.2009 the accused person accepted the illegal

gratification from the complainant. To arrive in a conclusion

in such circumstances the evidence of the complainant

and seizure witnesses are very crucial.

18. PW 1 Sri Madhurjya Phukan is the complainant of

this case . He has deposed before the court that in 2009

he was the registered owner of a passenger bus bearing

registration no AS-060D 2458, and on 27.01.09 he went

to the Office of the DTO, Dibrugarh to obtain the fitness

certificate of his bus. He stated that after preparation of the

fitness certificate by the motor vehicle inspector he went to

the accused Tauique Ali who was working as a lower divi-

sion assistant in the office to have the fitness certificate

countersigned by the DTO, and then the accused deman-

ded Rs. 500/( Rupees five hundred) only from him to get

the fitness certificate countersigned by the DTO. PW 1

also deposed that he instead of paying the money to the

accused lodged a written complaint on that day before

the Deputy Commissioner, Dibrugarh. On 29.01.09 he

was called to the office of the Deputy Commissioner where

he met Assistant Commissioner Virendra Mittal,IAS,

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told him the facts and was asked to come on the next date.

PW 1 stated that on 30.01.09 at about 11 am he met

Virendra Mittal in his office , two police persons namely

Gopi Dutta and Cheniram Dutta also came in civil dress,

and all they went to the office of the Circle Officer situated

near the office of the DTO, Dibrugarh. There they met

Circle Officer Sarangapani Sarma and at about 12`15 pm

all went to the office of the DTO. PW 1 stated that he

went inside the room and found the accused absent. They

all again went to the office at 3pm, PW 1 entered into the

office room, delivered the 500 rupee note with initial of

Virendra Mittal to the accused who kept the currency note

in his left trouser pocket and asked PW 1 to wait. PW 1 fur-

ther deposed that he came out of the office and informed

V. Mittal. IAS who was waiting near the door step of the

room and immediately V.Mittal, E.M. Sarangapani Sarma,

police Gopi Dutta entered into the room and Gopi Dutta

searched Taufique Ali and recovered the 500 rupee cur-

rency note from the pocket of the accused. PW 1 identified

the 500 rupee currency note as M.Exbt.1 and M.Exbt1(1)

as the signature of V. Mittal.IAS. PW 1 also stated that po-

lice seized the 500 rupee currency note vide seizure list

Exbt 1( Xerox copy) and Exbt. 1(1) is his facimal signature.

He stated that Virendra Mittal, Sarangapani Sarma, Gopi

Dutta and one Anima Handique also put their signature on

the seizure list.

19. In His Cross Examination PW 1 stated that he pur-

chased the bus bearing no AS-O6-D-2458 in November,

2003 and sold the bus to one Uttam Paul in 2007 and

transferred ownership to him. In 2009 he was not the re-

gistered owner of the bus. He stated that for fitness certific-

ate one has to deposit prescribed fee in the DTO office. He

deposited fee in the cash counter. He also stated that he

donot remember the amount of prescribed fee for fitness

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certificate and the exact date when he deposited the fee.

He denied that he did not deposit the fee before 30.01.09.

He stated that on the day of occurance the Magistrates

and police personnels were waiting outside the room

where the accused was working. He denied that he asked

the accused to deposit the prescribed fee of Rs.500/ on

the next day as by 3pm the cash counter was closed. He

denied that Taufique Ali did not demand Rs. 500/( Rupees

five hundred) only from him and he did not give any

amount to him. In cross he also stated that he put his sig-

nature in the original Exbt. 1 as Exbt. 1(1) in Dibrugarh Po-

lice Station. He stated that he has not seen the complaint

submitted by him before the Deputy Commissioner in

Court and also the relevant Fitness Certificate Application

Form. He denied that the complain is false and concocted

one as he was not the registered owner.

20. The Ld. defence counsel at the time of argument

has submitted that the seizure list Ext. 1 is a xerox copy

and as such the same can not be relied during trial. Ld. de-

fence counsel submitted that the PW-1, the original com-

plainant, has admitted that Ext. 1 is a xerox copy and he

has not seen the original before the court.

21. Before discussing the other evidence brought into

the record I deem it fit to discuss as to whether the Ext. 1

seizure list (xerox copy) can be admitted in evidence in this

case or not. Perusal of record reveals that during the

course of investigation the I/O through the Ld. Chief Judi-

cial Magistrate, Dibrugarh filed a petition submitting that

the original case diary of Dibrugarh PS case No. 55/09 has

been lost while shifting the office of the O/C, Dibrugarh PS

due to water logging in the year 2010 and as such submit-

ted prayer to allow him to reconstruct the case diary on

the basis of contents of available documents. This court

after considering the prayer submitted by the I/O has al-

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lowed reconstruction of the case diary on the basis of con-

tents of available documents vide order dated 13.7.12. It

is a practice that after registration of a case the original

FIR is sent to the concerned court and the I/O makes the

seizure lists alongwith the seized articles “seen” by the

court and thereafter takes back the original seizure lists

alongwith the seized articles for further investigation and

the court while allowing the same generally retains a copy

of the seizure list after being seen. Perusal of the record

shows availability of the original FIR in the record and a

copy of the seizure list “seen” by the Ld. CJM, Dibrugarh

on 31.1.09.

22. Section 65 of the Indian Evidence Act 1872 provides

the conditions when secondary evidence can be given dur-

ing trial. As per provisions 65(c) of the Evidence Act sec-

ondary evidence can be given when the original has been

destroyed or lost, or when the party affirming evidence of

its contents can not, for any other reason not arising from

its own default or neglect, produce it in the reasonable

time. In the case in hand record reveals the lost of the ori-

ginal case diary during the course of investigation which

generally contains the documents collected by the I/O dur-

ing investigation. In view of the above provisions and as

the court has allowed the I/O to reconstruct the case diary

on the basis of contents of available documents during the

course of investigation the prosecution is within its right to

exhibit the xerox copy of the seizure list the original having

been lost and as such I have not found any ambiguity in

accepting the Ext. 1 in evidence.

23. While examining the evidence of PW-1 we found that

though he in examination in chief stated that he was the

registered owner of AS 06 D 2458 passenger bus in the

year 2009 but admitted in cross that he has sold the said

bus to one Uttam Paul of Dibrugarh in 2007 and in the

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year 2009 he was not the registered owner of the vehicle.

We also found that on 27.1.09 he went to the office of the

DTO, Dibrugarh to obtain fitness certificate of his vehicle

and the same was prepared by the MVI and the accused

demanded illegal gratification of Rs. 500/( Rupees five

hundred) only from him to obtain countersignature of the

DTO in the said fitness certificate and thereafter he lodged

one written complain before the DC, Dibrugarh and on

30.1.09 a trap was laid in the assistance of V. Mittal, IAS,

Asstt. Commissioner, Sarangapani Sarma, Executive Ma-

gistrate, one S/I of police Cheniram Dutta and one Con-

stable Gopi Dutta. From his evidence it also come into re-

cord that it is within his knowledge that to obtain fitness

certificate one has to deposit the prescribed fee in the

DTO office. It also came into record that he do not remem-

ber the amount of prescribed fee required and the exact

date when he deposited the prescribed fee. He also did

not find the original application of fitness certificate as well

as his complaint petition filed before the Dy. Commission-

er, Dibrugarh. It also came into record that he has put his

signature in the seizure list in Dibrugarh police station.

24. PW-2 Sri Sarangapani Sarma, Circle Officer de-

posed that on 30.01.2009 while he was working as Circle

Officer(E), Dibrugarh he was called by the Dy. Commis-

sioner, Dibrugarh Sri Ashitosh Agnihotri and was told that

one Madhurya Phukan has lodged a complaint that

Taufique Ali, LDA of the office of the DTO, Dibrugarh has

demanded illegal gratification for renewal of fitness certific-

ate of the bus belonging to Madhurya Phukan. He also

stated that the DC also called V. Mittal to his chamber and

they met Madhurya Phukan and on the direction of the DC

they decided to trap accused Taufique Ali. He also stated

that Asstt. Commissioner V. Mittal put his initial in the 500

rupee currency note and on the very date he alongwith V.

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Mittal, S.I. of Police Cheniram Dutta, police constable Gopi

Dutta and complainant Madhurya Phukan went into the of-

fice of the DTO and Madhurjya Phukan went inside the

room where Taufique Ali was working and he alongwith

Asstt. Commissioner V. Mittal and the two police personnel

in civil dress were standing inside the room where accused

Taufique Ali was working. He stated that thereafter com-

plainant Madhurya Phukan talked with the accused and

handed over the 500 rupee currency note to him and im-

mediately after they rushed to him and he directed the po-

lice officer to search the accused and on being searched

one 500 rupee currency note with the initial of V. Mittal was

recovered from the trouser pocket of the accused. He

stated that thereafter police officer seized the currency

notes vide seizure list Ex 1 and he identified Ext. 1(3) as

his facimal signature. He stated that thereafter he lodged

the FIR before the O/C Dibrugarh PS vide Ext. 2. He also

identified 500 rupee currency note as M Ext. 1 and M Ext.

1(1) is the signature of V. Mittal.

25. In cross he stated that before proceeding to the

place of occurrence he did not make any separate inquiry

regarding the allegation, he did not ascertain the actual

ownership of the bus bearing No. AS 06 D 2458. He also

did not overhear the conversation between the complain-

ant and the accused. He also stated that he recovered the

money from the possession of accused Taufique Ali with

the help of S/I of Police and the Constable in presence of

other witnesses. He stated that one Anima Handique was

present at the time of seizure. He also stated in cross that

though other officials of DTO office were present at the

time of recovery but their signatures were not taken.

26. PW-3 Sri Virendra Mittal, IAS deposed that on

30.1.2009 he was working as Asstt. Commissioner at

Dibrugarh. He also stated that on 27.1.09 one Madhurya

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Phukan lodged a complaint before the Dy. Commissioner,

Dibrugarh regarding demand of illegal gratification of Rs.

500/( Rupees five hundred)only by one dealing assistant of

DTO office for fitness certificate of a bus. He also stated

that DC endorsed the complaint petition to him for action

and thereafter he called Madhurya Phukan to his chamber

on 30.1.2009 and put his initial on the 500 rupee currency

note given by Madhurjya Phukan in order to deliver it to

the accused dealing assistant. Thereafter they all went to

the office of the DTO in the forenoon, but did not find the

accused, in the same afternoon they again went to the of-

fice of the DTO at 3 PM. He stated that Madhurya Phukan

went inside the room where the accused was working and

they were waiting outside. After some time Madhurya

Phukan came out and informed them that he has delivered

500 rupee currency note to the accused and thereafter

they rushed to the accused and the police officer in

civil dress searched the accused and recovered 500 ru-

pee currency note from the left trouser pocket. He identi-

fied the currency note as M Ext.1 and M Ext. 1(1) is his

signature. He further deposed that I/O prepared the

seizure list Ext. 1 on the spot and took signatures of the

witnesses in his presence on the spot in the seizure list.

27. In cross PW-3 stated that he did not make any in-

quiry regarding the ownership of the bus. He also stated

that he has not seen the complaint petition lodged by

Madhurjya Phukan before the DC on 27.01.2009. He also

stated that when they approached DTO office there was

no independent witnesses with them, but one witness An-

ima Handique put her signature in the seizure list on the

place of occurrence. He stated that he had seen Madhur-

jya Phukan talking with Taufique Ali, but did not overhear

the conversation nor did not see any transaction. He

denied that trap was laid without any basis.

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28. PW-4 Smti Anima Handique deposed that she do not

know accused Taufique Ali and she did not visit the office

of the DTO, Dibrugarh on 30.01.2009 and she did not work

in the said office and she has not put her signature in the

seizure list.

29. PW-5 Sri Gopi Dutta, police constable deposed that

on 30.01.2009 while he was working as constable in Traffic

Branch of Dibrugarh PS he reported as per direction of his

superior alongwith S/I Cheniram Dutta before the Asstt.

Commissioner Sri V. Mittal at about 11.30 AM. He stated

that thereafter they went to the office of the DTO,

Dibrugarh where they made Circle Officer, Sarangapani

Sarma and thereafter Circle Officer alongwith S/I Cheniram

Dutta entered in to the DTO office and came out after

some time stating that they have to come again. At 3 PM

they again went to the office of the DTO accompanied by

one Madhurya Phukan. He stated that they were in

civil dress and were asked to wait in the baranda of the of-

fice of the DTO. He stated that at first Madhurjya Phukan

entered into the office of the DTO and thereafter Circle Of-

ficer alongwith Asstt. Commissioner and S/I, and after

some time Circle Officer called him inside the office and

showed him one 500 rupee currency note saying that the

said note was recovered from the possession of

Taufique Ali which was given to him by Madhurjya Phukan

with initial of V. Mittal. He stated that thereafter S/I

Cheniram Dutta seized the 500 rupee currency note and

he identified his signature as Ext. 1(5). He also identified

500 rupee note as M Ext. 1.

30. In cross the said witness stated that Ext. 1 is the

photocopy of the seizure list and he put his signature in the

seizure list in the police station. He also stated in cross

that initially he and Cheniram Dutta were waiting in

baranda and thereafter entered into the office. He do not

14

know anything about this case except the facts stated by

the Circle Officer Sarangapani Sarma. He also stated that

immediately after the recovery they went to the police sta-

tion. He also stated that he did not hear any conversation

between the complainant and the accused and also did

not see any transaction.

31. PW-6 Sri Cheniram Dutta deposed that on

30.01.2009 he was working as S/I of Police in Dibrugarh

PS and as per direction of the Superintendent of Police,

Dibrugarh he reported before the Asstt. Commissioner, V.

Mittal alongwith constable Gopi Dutta at about 11.30 AM

after making GD entry no. 1005 dtd. 30.01.2009. He

stated that at that time Circle Officer Sarangapani Sarma

and one person namely Madhurya Phukan were present in

the office chamber of Asstt. Commissioner. He stated that

the Asstt. Commissioner told them that he has received a

written complaint from Madhurjya Phukan regarding al-

leged demand of illegal gratification and put his initial in

one 500 rupee currency note and asked everybody to pro-

ceed to DTO office, Dibrugarh to lay the trap. PW-6 fur-

ther stated that before proceeding to DTO office he seized

the written complain given by Madhurjya Phukan in the

chamber of V. Mittal. He also stated that at first they ar-

rived at the DTO office at around 12 noon, but the ac-

cused was found absent and they again went to the office

of the DTO at 3 PM. He further stated that after reaching

the office Madhurya Phukan asked the accused about the

fitness certificate of his bus and the accused asked

Madhurjya Phukan whether he has arranged the money

and thereafter Madhurjya Phukan gave Rs. 500/( Rupees

five hundred) only to the accused and the accused kept it

in the left pocket of his trouser in their presence as they

were in civil dress. He stated that thereafter they searched

the accused and recovered 500 rupee currency note with

15

the initial of V. Mittal and he seized the same vide seizure

list Ext. 1. He identified his signature as Ext. 1(7) and the

signature of the accused as Ext. 1(8). He also stated that

the seizure list was made in presence of Sarangapani

Sarma, Anima Handique, Gopi Dutta and Madhurya

Phukan. He also identified the M Ext. 1 as the 500 rupee

currency note. He also stated that he has recorded the

statement of all the seizure witnesses. He further deposed

that the accused was brought to the police station and

was interrogated on the supervision of DSP, Mahendra

Gogoi and thereafter the accused was arrested and

on the same day Sarangapani Sarma lodged an FIR in

Dibrugarh PS and the O/C registered Dibrugarh PS case

No. 55/2009 u/s 7 of Prevention of Corruption Act.

32. In cross PW-6 stated that he was serving as S/I of

Police at that time and he did not conduct any preliminary

inquiry regarding allegation. He also stated that they went

to the place of occurrence on the basis of GD entry and

the case was registered after the occurrence took place.

He also stated in cross that they did not take any inde-

pendent witness alongwith them and he did not examine

any witness except Anima Handique from the office of the

accused. He also stated that he has not seen the com-

plaint filed by Madhurjya Phukan before the Dy. Commis-

sioner in the Court. He denied that he was not present in-

side the room and he did not hear the conversation

between the complainant and the accused and he

did not see the occurrence. He also stated that im-

mediately after the occurrence he started investigation,

prepared the seizure memo by seizing the money at the

place of occurrence and also recorded the statement of

witnesses. He also stated that he did not obtain any order

from court to conduct the above investigation. He also

16

stated that he knew that he was not competent to investig-

ate the offences under the PC Act.

33. While scrutinizing the prosecution case we have

found that the prosecution has exhibited the seizure list as

Ext. 1. Perusal of Ext. 1 reflects that the seizure officer S.I.

Cheniram Dutta seized the five hundred currency note

from accused Taufique Ali in the Office of the D.T.O.,

Dibrugarh on 30.1.09 at about 3-15 P.M. in presence of

witnesses namely (1) Sri Sarangapani Sarma(Executive

Magistrate), (2) Smti. Anima Handique, (3) Sri Gopi Dutta,

Constable, (4) Sri Virendra Mittal, I.A.S. Asstt. Commis-

sioner and (5) Sri Madurjya Phukan.

34. P.W.6 Sri Cheniram Dutta in his evidence deposed

that on 30.1.09 on the date of occurrence he started in-

vestigation immediately after the occurrence and prepared

the seizure memo by seizing the money at the place of oc-

currence and he also recorded the statement of the wit-

nesses. P.W.1 Sri Madhyurjya Phukan, the original com-

plainant in his cross examination have stated that he has

put his signature in Ext. 1 (seizure list) in Dibrugarh P.S.

P.W.5 Sri Gopi Dutta, Police Constable in his cross exam-

ination has also stated that he has put his signature vide

Ext. 1(5) in the police station. P.W.4 Smti. Anima

Handique in her evidence stated that she has not put her

signature in any paper and on 30.1.09 she even has not

visited the Office of the D.T.O., Dibrugarh. This P.W.4 was

the only independent witness regarding the recovery and

preparation of the seizure and she has denied putting her

signature in the seizure list. This witness having not

declared hostile by the prosecution her evidence remained

intact. P.W.2, the informant Sri Sarangapani Sarma who

lodged the FIR and P.W.3 Sri Virendra Mittal whose ini-

tial appears in the five hundred rupee currency note have

17

only stated that they have put their signatures in the

seizure list Ext.1 on the spot.

35. Ext.1 shows that except Smti. Anima Handique

there was no independent witness whose signature appear

in the seizure list. Witness Sri Sarangapani Sarma has

lodged the FIR. Sri Virendra Mittal has put initial in the five

hundred rupee currency note and Sri Madhurjya Phukan

was the complainant who lodged the original complaint be-

fore Deputy Commissioner, Dibrugarh and Sri Gopi Dutta

was the police Constable who accompanied the S.I. Sri

Cheniram Dutta,the seizing officer. Out of the above five

P.Ws independent witness Smti. Anima Handique denied

putting signature in the seizure list and complainant Sri

Madhurjya Phukan and Sri Gopi Dutta have stated that

they put their signatures in Ext.1 in the police station. From

the above it appears that the prosecution witnesses are

contradicting each other regarding the place of seizure of

the currency note.

36. P.W.1 Sri Madhurjya Phukan in his evidence de-

posed that on 30.1.09 at around 3 P.M. they all rushed to

the Office of District Transport Office, Dibrugarh and he

went inside the office room of the accused and at that

time the other witnesses including Sri Virendra Mittal, Sri

Sarangapani Sarma and the police personnel were waiting

outside and after delivering the five hundred rupee cur-

rency note to the accused he came out and informed Sri

Virendra Mittal, I.A.S. about the delivery and thereafter V.

Mittal, Executive Magistrate Sri Sarangapani Sarma and

police personnel entered into the room and out of them po-

lice constable Sri Gopi Dutta searched the accused Sri

Taufique Ali and recovered five hundred rupee currency

note from the accused. P.W.3 Sri Virendra Mittal, also

stated that on the day of occurrence P.W.1 entered into

the room of the accused and they were waiting outside

18

and after delivering the five hundred rupee currency note

to the accused by P.W.1 they were informed about the de-

livery and they immediately went inside the room of the

accused person and the two police officials in civil dress

searched the accused person and recovered the five

hundred rupee currency note from the left pocket of his

trouser. P.W.2 Sri Sarangapani Sarma on the other hand

deposed that on the day of occurrence he along with the

Asstt. Commissioner Sri Virendra Mittal and two police per-

sonnel in civil dress were standing inside the room where

accused Taufique Ali was working. He also stated that

after P.W.1 Sri Madhurjya Phukan handed over the five

hundred rupee currency note to the accused he immedi-

ately along with the Asstt. Commissioner and police of-

ficials rushed to him and on his direction the police official

searched the accused and recovered the five hundred

rupee currency note from the pocket of the trouser of the

accused. P.W.6 S.I. Cheniram Dutta had also deposed

that on the day of occurrence at the time of handing over

the money by P.W.1 Sri Madhurjya Phukan to the accused

they in civil dress were inside the room and seen the oc-

currence and as per instruction of the Asstt. Commissioner

has searched the accused person and recovered the five

hundred rupee currency note from the accused. On the

other hand P.W.5 Sri Gopi Dutta deposed that on the day

of occurrence at first P.W.1 Sri Madhurjya Phukan entered

into the office of the D.T.O., Dibrugarh and thereafter

Circle Officer along with the Asstt. Commissioner and S.I.

entered into the Office of the D.T.O. and after sometime he

was called by the Circle Officer inside the office and

shown one five hundred rupee currency note saying that

the same was recovered from the pocket of Taufique Ali.

From the above it appears that P.W.1 claims that at the

time of handing over the currency note to the accused the

19

other witnesses were waiting outside the office room for

his signal and the same is corroborated by the P.W.3 Sri

Virendra Mittal and P.W.5 Sri Gopi Dutta. On the other

hand P.W.2 Sri Sarangapani Sarma and P.W.6 Sri

Cheniram Dutta claims that they were inside the room

when P.W.1 Sri Madhurjya Phukan was delivering the

currency note to the accused. Though P.W.1 Madhurjya

Phukan claims that it was Sri Gopi Dutta who searched the

accused Taufique Ali and recovered the five hundred ru-

pee currency note but Sri Gopi Dutta in his examination in

chief deposed that he was waiting outside and the Circle

Officer called him inside the office room and showed him

the five hundred rupee currency note stating that the

same to have been recovered from the possession of the

accused. The prosecution witnesses as appears from the

above are contradicting regarding the manner how the

seizure was made.

37. The another aspect that has come into notice that

P.W.1 Sri Madhurjya Phukan has remembered the exact

day i.e. 27.1.09 when he went to the Office of the D.T.O.,

Dibrugarh for the fitness certificate of his bus, the

time( about 12 noon) when the accused demanded Rs.

500/- from him to get the fitness certificate counter signed

by the D.T.O. and also the date on 29.1.09 when he met

Asstt. Commissioner Sri Virendra Mittal and the time and

date i.e. at 11 A.M. on 30.1.09 when he again went to

meet Virendra Mittal and thereafter led the trap to the

catch the accused. However P.W.1 in his cross examina-

tion has stated that he do not remember the amount of

fee prescribed for fitness certificate and he also do not re-

member the date when he has paid the fee for fitness certi-

ficate . P.W.1 has stated that on 27.1.09 he went to the Of-

fice of the D.T.O., Dibrugarh to have fitness certificate

of his bus and after the fitness certificate was prepared by

20

the M.V.I. he took the same to Taufique Ali, the accused

for obtaining counter signature of the D.T.O. He also

stated that he delivered the five hundred rupee currency

note along with fitness certificate to the accused on

30.1.09. It suggest that the P.W.1 must had to pay the pre-

scribed fee for fitness certificate at least by 27.1.09 but

surprisingly the P.W.1 do not remember the amount of

fees prescribed for fitness certificate of a bus and also the

date of deposit of the said fees. On scrutiny of the evid-

ence of P.W.1 also shows that the alleged occurrence took

place on 27.1.09 and 30.1.09. P.W.1 purchased the pas-

senger bus bearing No. AS06-D-2458 in November, 2003

and he has sold the said bus to one Sri Uttam Paul in the

year 2007 and in the day of occurrence he was not the re-

gistered owner of the said bus. The P.W.1 has not stated

in his evidence as to why he has applied, if any, for the

fitness certificate of the bus of which he is not the re-

gistered owner. The prosecution has also not brought

anything in record as to whether P.W.1 has actually ap-

plied for the fitness certificate of the bus bearing No.

AS06-D-2458 and if applied why he has applied when he

is not the registered owner of the said bus.

38. The learned defence counsel while arguing the case

has submitted that practically the entire case was

investigated by P.W.6 Sri Cheniram Dutta, S.I. of Police

and as such it is hit by the provisions of Section 17(c ) of

Prevention of Corruption Act 1988. It is argued by the

learned defence counsel that though investigation of the

case was entrusted to Deputy Supdt. of Police and charge

sheet was laid by one Addl. Supdt. of Police( P.W.7)

however the entire investigation was done by S.I. of police

which is not authorized under the act.

39. Section 17(c ) of P.C. Act provides that no police of-

ficer below the rank of Deputy Supdt. of Police or equival-

21

ent shall investigate the any offence punishable under this

act without the order of Metropolitan Magistrate or the Ma-

gistrate of the Ist Class. It provides that a police officer not

below the rank of Inspector of Police if authorized by the

State Govt. by general or special order may also investig-

ate any such offence without the order of Metropolitan

Magistrate or the Magistrate Ist Class.

40. In this case the occurrence took place on 30.1.09 at

around 3-15 P.M. Perusal of record reveals that on the

same day at around 6 P.M. FIR was lodged by P.W.2 Sri

Sarangapani Sarma before the Officer-in-Charge,

Dibrugarh P.S. and after receiving the FIR the O/C

Dibrugarh P.S. on 30.1.09 registered Dibrugarh P.S. Case

No. 55/09 U/S 7 of P.C.Act 1988 and entrusted the invest-

igation of the case to one Sri Mahendra Gogoi, A.P.S.

Deputy Supdt. of Police H.Q., Dibrugarh.

41. Sri Mahendra Gogoi has been examined by the

prosecution as P.W.8. Mahendra Gogoi (P.W.8) in his

evidence deposed that on 30.1.09 he was working as

Deputy Supdt. of Police H.Q. at Dibrugarh and on that day

he was endorsed with the investigation of the case. He

deposed that S.I. Sri Cheniram Dutta has done the prelim-

inary investigation at the place of occurrence and after

lodging of the FIR the case was endorsed to him for in-

vestigation. He further deposed that S.I. Cheniram Dutta

has also seized the currency note from the accused, has

taken custody of the accused and also recorded the

statement of witnesses at the place of occurrence. PW 8

stated that thereafter he found that the investigation was

almost completed and accordingly on 4.6.09 he has ap-

plied for prosecution sanction to the Commissioner of

Transport , Govt. of Assam against the accused Taufique

Ali. However on being transferred before receiving the pro-

secution sanction he handed over the case diary on

22

1.2.2010. In his cross examination he has deposed that

he did not conduct any investigation, he had not been to

the place of occurrence. He also stated that he was en-

dorsed after the investigation was completed by S.I. Sri

Cheniram Dutta. He did not make any seizure nor he ex-

amined any witness. He also stated in his cross that all the

investigation was done by his previous I/O.

42. Prosecution has also examined another Police of-

ficer Sri Pranjit Bora P.W.7 , Addl. Supdt. of Police who

was endorsed with the investigation of the instant case

and he after finding that his predecessor has already ap-

plied for prosecution sanction after finding the investigation

complete, he filed the charge sheet against the accused

U/S 7 of P.C. Act. He didnot wait for prosecution sanction

order as he received an order from this court that I/O can

submit chargesheet without prosecution sanction order

after a period of 4 months of applying for the sanction.

He also did not conduct any investigation.

43. While examining the evidence of these two police of-

ficer P.W.8 and P.W.7, more particularly the evidence of

P.W.8 Sri Mahendra Gogoi we found that he was en-

dorsed with the investigation of this case on 30.1.09 on the

day of lodging of FIR. However, his evidence shows that

he has not conducted any investigation in connection with

this case and fully relied on the preliminary investigation

undertaken by S.I. Sri Cheniram Dutta on the basis of

G.D.Entry No. 1005 dated 30.1.09. P.W.8 Sri Mahendra

Gogoi after getting the endorsement did not even take

steps to confirm the preliminary investigation done by

S.I. Sri Cheniram Dutta. He did not take steps to confirm

the statement of the seizure witness which were recorded

by S.I. Sri Cheniram Dutta on the basis of G.D. Entry. He

also did not even recorded the statement of S.I. Cheniram

Dutta who conducted the preliminary investigation . P.W.8

23

being the I/O of this case could have taken steps to seize

the application for fitness certificate , the fitness certificate

as well as fees deposit register for fitness certificate.

P.W.8 further could have enquired regarding the actual

ownership of the bus bearing No. AS06-D-2458 on the day

of occurrence and recorded the statement of the then own-

er Sri Uttam Paul to enable to come to a finding as to why

P.W.1 Sri Madhurjya Phukan has applied, if any, for fitness

certificate when Uttam Paul was the registered owner.

However from the record it appears that I/O Sri Mahendra

Gogoi has not taken any steps during his course of invest-

igation.

44. The Prevention of Corruption Act deals with offences

committed by the public servant, and offences committed

by public servant are considered serious in nature. The Act

also aims to safeguard public servant from unnecessary

and vexatious complaints and as such the act provides

that such offences has to be investigated by a police of-

ficer not below the rank of Deputy Supdt. of Police or equi-

valent or in other circumstances if authorized by the State

Govt. by general or special order by a police officer not be-

low the rank of Inspector of Police. Under no circum-

stances an S.I. of Police can investigate any offence un-

der the P.C. Act. However there is no bar for an S.I. of

Police to conduct preliminary investigation on the basis of

G.D. Entry in respect of an offence committed under PC

as offences under the PC Act are cognizable offence .

The Hon’ble Supreme Court in 2004 (2) Crimes 450 (SC)

between State of Tamilnadu –Vs- Jaya Paul has held that

if a police Inspector is reported regarding the commission

of a suspected crime under the PC Act the same will not

disqualify him from taking up investigation of the offence

under the PC which is a cognizable one. However in our

case from the evidence it appears that though P.W.8 Sri

24

Mahendra Gogoi, Deputy Supdt. of Police H.Q. was en-

dorsed with the investigation of the case after registration

of the same he has not conducted any investigation and

fully relied on the preliminary investigation done by the S.I.

of Police on the basis of G.D.Entry. In my view, when the

I.O.PW8, Dy. Suptd. of Police after registration of the FIR

did not conduct any investigation and only relied on the

preliminary investigation done by the S.I. of Police before

registration of the case then it is hit by the provisions of

Section 17(c ) of PC Act, 1988.

45. The defence in support of their case has also ex-

amined two witnesses . D.W.1 Sri Trailukya Hatimuria , Sr.

Asstt. In the Office of the D.T.O., Dibrugarh has exhibited

the certified abstract copy of fitness certificate register from

27.1.09 to 2.2.09 vide Ext. A and shows that Ext. A do not

reflect payment of fitness certificate fee of Rs. 500/-

against the vehicle No. AS06-D-2458. He also exhibited

the counter foils of the receipt books from the period

27.1.09 to 2.2.09 vide Ext. B.C.D.E.F. and G. and stated

that these counter foils of receipt book also do not reflect

payment of fitness certificate fee of Rs. 500/- against bus

No. AS06-D-2458. D.W.1 also exhibited certified abstract

copy of combined registration of vehicle No. AS06-D-2458

vide Ext. H and shows that on 18.12.07 the said vehicle

was sold and transferred to one Sri Uttam Paul. D.W.2

Sri Dibyananda Dohotia has deposed that in the year 2013

he was working as MVI and Public Informant Officer in the

Office of the D.T.O. , Dibrugarh and being Information Of-

ficer he has provided one RTI reply to accused Taufique

Ali vide Ext. I and informed him that Sri Uttam Paul was

the registered owner of the vehicle No. AS06-D-2458 with

effect from 18.12.07 and also provided information that the

prescribed fees for fitness certificate of a bus was Rs.

500/-

25

46. The evidence of the D.Ws shows that on the day of

occurrence i.e. 27.1.09 and 30.1.09 P.W.1 was not the

registered owner of the bus bearing no AS06-D-2458 and

in the year 2007 he has sold the vehicle to one Sri Uttam

Paul. The defence evidence also shows that during

27.1.09 to 2.2.09 the complainant P.W.1 has not deposited

any prescribed fees for fitness certificate of the bus

bearing No. AS06-D-2458. It is the principle of Criminal jur-

isprudence that the evidence of defence witnesses are to

be measured on the principle preponderance of probability.

In our case we found the evidence of D.Ws are corrobor-

ated by the evidence of P.W.1 regarding the ownership of

the vehicle on the day of occurrence. Moreover the prosec-

ution witnesses has not also produced any document

showing the payment of prescribed fees by P.W.1 to ob-

tain the fitness certificate.

47. In view of the above discussions, more particularly in

view of the contradiction of the prosecution witnesses

regarding the manner of recovery and seizure of tainted

currency note from the possession of the accused and as

the prosecution has failed to produce the original com-

plaint petition which P.W.6 claimed to have seized from the

Office of the Deputy Commissioner , Dibrugarh and also

on the failure of the prosecution to seize and produce the

application form for fitness certificate , and the fitness certi-

ficate prepared by the MVI as well as the defence evid-

ence showing that no fees was deposited by the complain-

ant during the concerned period for obtaining the fitness

certificate, it creates doubt in the mind as to whether the

complainant(PW 1) had actually applied for the fitness cer-

tificate of the bus of which he was not the owner and

whether the accused Taufique Ali actually demanded any

bribe of Rs. 500/(Rupees five hundred) to obtain the

26

counter signature of the then D.T.O., Dibrugarh on the fit-

ness certificate of the bus bearing No. AS06-D-2458.

48. In a criminal case it is the duty of the prosecution to

prove the guilt of the accused beyond all reasonable

doubt. From the above discussion we have found that the

prosecution has not been able to prove beyond all reason-

able doubt all the necessary ingredients of section 7 of

P.C. Act,1988. Discussion above implies that the ac-

cused is entitled for benefit of doubt.

49. Considering the above discussion, the accused

Sri Taufique Ali is acquitted from the charges on the basis

of benefit of doubt. He is set at liberty forthwith. However,

his bail bond shall remain in force for 6 (six) months as per

provisions of Section 437 (A) Cr.P.C.

50. The money seized by the I/O during investigation be

deposited in the State Exchequer.

51. The case is disposed of accordingly.

Given under my hand and seal of this Court on this

24th day of December, 2014.

Dictated and corrected by me.

Special Judge, Assam, Special Judge, Assam, Guwahati. Guwahati.

27

A P P E N D I X

Prosecution witnesses :

1. Sri Madhurjya Phukan , PW 1

2. Sri Sarangapani Sarma, PW 2

3. Sri Virendra Mittal,IAS, PW 3

4. Smti Anima Handique, PW 4

5. Sri Gupi Dutta, PW 5

6. Sri Cheniram Dutta, PW 6

7. Sri Pranjit Bora, PW 7

8. Sri Mahendra Gogoi, PW 8

Defence witnesses:

1. Sri Trailukya Hatimuria, DW 1

2. Sri Dibya Nanda Dahatia, DW 2

Exhibits :

(A) For prosecution:

(1) Exbt.1--- seizure list

(2) Exbt. 2---F I R

(3) Exbt. 3--- Chargesheet

(4) Material Exbt. 1--- Rs. 500/ currency note

(B) For defence :

(1) Exbt. A--- Certified copy of fitness certificate

register.

(2) Exbt. B --- Counter foil of receipt books

(3) Exbt. C --- -- DO --

(4) Exbt. D --- -- DO –

(5) Exbt. E --- -- DO –

(6) Exbt. F --- -- DO –

(7) Exbt. G --- -- DO –

28

(8) Exbt. H --- Certified abstract copy of Combined

Register.

(9) Exbt. I --- RTI reply dated 18.05.13.

Special Judge, Assam

Guwahati.