in the court of the special judge, cbi, assam, addl. cbi ...kamrupjudiciary.gov.in/apr-15...
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IN THE COURT OF THE SPECIAL JUDGE, CBI, ASSAM, ADDL. CBI COURT NO.II,
CHANDMARI, GUWAHATI-3.
Special Case No. 06/2009.
State(CBI)
Vs
Sri Digish Ch. Barman,
the then Sub Post Master, Jaipur Rajabazar Sub Post
Office, Cachar, ASSAM ……Accused.
U/Secs 409,468,471,477A IPC and u/s 13(1)(c)
R/W section 13(2) of the P.C. Act. 1988.
P R E S E N T :
Sri P.C. Das (AJS),
Special Judge CBI, Assam,
Addl. CBI Court No.II,
Chandmari, Guwahati-3.
APPEARANCE:
For the State……………Mr. S.D. Purkayastha, Ld. Spl. P.P.; CBI for the prosecution.
For the accused……….Mr. A. Sahad &
Mr. N. Ahmed, Ld. Counsels for defence.
Evidence recorded on : 20.8.2013, 12.9.2013, 11.11.2013, 13.11.2013,
13.2.2014, 05.3.2014, 06.3.2014, 31.3.2014, 02.5.2014,
03.5.2014, 22.5.2014, 04.6.2014, 17.6.2014, 02.7.2014,
22.7.2014, 14.11.2014.
Accused examined on : 27.1.2015 ;
Arguments heard on : 11.2.2015, 16.2.2015, 04.3.2015, 11.3.2015,
17.3.2015 and 31.3.2015.
Date fixed for Judgment : 08.4.2015.
Judgment delivered on : 08.4.2015.
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J U D G M E N T AND O R D E R
In every criminal trial, truth is the quest.
“Truth must triumph” is the hallmark of justice.
[Nandlal Wasudeo Badwaik Vs Lata Nandlal Badwaik and another;
(2014) 2 SCC 576 para 19]
In such a voyage of quest for truth, as in the instant case in hand,
we may proceed to anatomize and oversee to what extent the truth so
intrinsically involved in this case is traced out, discovered and established by
the Prosecution.
Before proceeding any further, we may depict briefly the factual matrix
of the case, as projected by the prosecution.
FACTUAL MATRIX OF THE CASE
1. The brief factual matrix of the Prosecution case, shorn of
minute details, as it is revealed in the FIR dated 27.02.2009 is that reliable source
information surfaced to the effect that Digish Ch. Barman, the then Sub Post Master(SPM)
of the Jaipur Rajabazar Sub Post Office(SPO) during the period of February, 2001 to
07.06.2005 had dishonestly misappropriated a sum of Rs. 2.3 lakhs, in criminal breach of
trust as such public servant, which he had received from Jyotirmoy Choudhury of Natun
Bazar, PO- Jaipur Rajabazar in the District of Cachar, ASSAM for investment in KVP in the
said Sub Post Office on 30.07.2003, 03.09.2003 and 13.10.2003.
According to the Prosecution, the above named Digish Ch. Barman
as the SPM of the said Jaipur Rajabazar SPO had received various cash amount from the
above named Jyotirmoy Choudhury for investment in KVPs and accordingly, he issued KVP
certificates under his signatures and seals, as the SPM of the said SPO. But instead of
crediting the sale proceeds into the Government Account, by making entries in the SPO
Account Book and Sub Office Journal etc; he had dishonestly misappropriated the entire
cash amount of Rs.2.3 Lakhs so received from him in criminal breach of trust as such
public servant. The amount, so misappropriated by the accused, as it is found in the said
F.I.R. dated 27.02.2009 submitted by the then CBI, ACB, Shillong, are as follows:-
Date of
issue of
KVP
Denomination
of KVP(in
Rupees)
No. of
certificate
s issued
Sl. No. of KVP
certificates
issued
Amount in Rupees Name and
address of KVP
holders
3
30.07.2003 10,000 2 01CD399698 &
01CD399699
10000X2=20,000/- Joytirmoy
Choudhury,
Nutan Bazar,
PO:Joypur Raja
Bazar.30.07.2003 5,000 8 76BB217342 to
76BB217349
5000X8=40,000/- Joytirmoy
Choudhury,
Nutan Bazar,
PO:Joypur Raja
Bazar.03.09.2003 10,000 1 01CD399700 10000/- Joytirmoy
Choudhury,
Nutan Bazar,
PO:Joypur Raja
Bazar.03.09.2003 10,000 4 22CD384461
to
22CD384464
10000X4=40,000/- Joytirmoy
Choudhury,
Nutan Bazar,
PO:Joypur Raja
Bazar.03.10.2003 10,000 12 22CD384477
to
22CD384488
10000X12=
1,20,000/-
Joytirmoy
Choudhury,
Nutan Bazar,
PO:Joypur Raja
Bazar.Total Rs. 2,30,000/-
On the basis of the said F.I.R, SHG RC Case No. SHG 2009A0001 was registered and upon
completion of investigation, charge sheet was laid against the above named accused
Digish Ch. Barman, for offences u/s 468/471/477A of the I.P.C. and u/s 13(2) Read with
section 13(1)(C) of the P.C. Act. 1988.
2. Upon consideration of the relevant materials along with the Case
Diary and upon hearing the learned Counsels of both sides, my learned predecessor
framed charges against above named accused for offences u/s 409,468,471,477A IPC and
u/s 13(1)(c) R/W section 13(2) of the P.C. Act. 1988.
In this case, prosecution has examined as many as 14(fourteen)
witnesses, including the I.Os.
4
3. After closure of recording evidence of the Prosecution witnesses, the
statement of the accused u/s 313 Cr.P.C. was recorded with reference to the evidence on
record.
The accused has admitted in his statement recorded u/s 313, Cr.P.C.,
that during the period of 08.08.2001 to 08.06.2005, he was posted as the SPM of Joypur
Rajabazar Sub-Post Office. The other material evidence, appearing against the accused is,
however, denied by him.
According to accused, as stated by him in his statement recoded
u/sec 313 Cr.P.C., that it is false to state that he had issued the total 27(twenty seven)
numbers of KVPs on 30.07.2003, 03.09.2003 and on 13.10.2003 in the names of
Jyotirmoy Choudhury and Johar Choudhury for total amount of Rs. 2,30,000/- receiving
money from the purchaser, that he did not deposit the said amount into the Govt. Account
and that he had misused the same for his own use, during the period of 08.08.2001 to
08.06.2005, as the SPM of the Joypur Rajabazar SPO.
According to the accused, as narrated by him u/sec 313 Cr.P.C, it is
also false to state that he had issued the KVPs- Exts. 7 to 33 on application of Jyotirmoy
Choudhury, in favour of Johar Choudhury and the Jyotirmoy Choudhury.
As added by the accused in his statement recorded u/sec 313 Cr.P.C,
that for not crediting the sale proceeds, Bidit Bhushan Dutta, the then Postal Assistant,
who received the sale proceeds for those KVPs was only responsible and that he (the
accused) was not responsible for not crediting the same.
The accused has also pleaded innocence and that he is falsely
implicated in this case.
He has, however, examined no witnesses in his defence.
I have considered the materials on record very carefully and
cautiously.
I have also heard the arguments in detail, as advanced by the Ld.
Counsels of both sides.
4. POINTS FOR DETERMINATION:
(i) Whether the accused Digish Ch. Barman rendered his services as the SPM
of Joypur Rajabazar SPO, in the District of Cachar, Assam during the period of 08.082001
to 08.06.2005?
(ii) Whether the above named accused, in course of his holding such post, as
referred to in point No. (i), was entrusted with the total sum of Rs. 2.3 lakhs, being the
sale proceeds of the following KVP certificates-
Sl. KVP Certificate No. of Date Each for Exhibits Total(in
5
No. No. KVPs denominatio
n of Rs.
No. Rupees)
1. 76BB217342-49 8 30.07.2003 5,000/- 7-14 40,000/-2. 01CD399698-99 2 03.07.2003 10,000/- 20-21 20,000/-3. 22CD384461-64 4 03.09.2003 10,000/- 16-19 40,000/-4. 22CD384477-84 8 13.10.2003 10,000/- 22-29 80,000/-5. 01CD399700 1 03.09.2003 10,000/- 15 10,000/-6. 22CD384485-88 4 13.10.2003 10,000/- 30-33 40,000/- Total 27 Rs. 2,30,000/-
as purchased in the names of Jyotirmoy Choudhury and Johar Choudhury, but he did not
credit the above-referred sale proceeds of the KVPs into the Govt. Accounts and
misappropriated the same in breach of such trust, as such public servant and thereby
committed an offence punishable u/s 409, IPC?
(iii) Whether the above named accused in course of his holding such post as referred
to in point No.(i), committed forgery with respect to the documents, namely- Guard file,
Sub Post Office Account, Sub Office Journal, Stock Register etc. of the said SPO, intending
that it should be used for the purpose of cheating and thereby committed the offence
punishable u/s 468, IPC?
(iV) Whether the above named accused in course of his holding such post as referred
to in point No.(i), did not credit the sale proceeds of KVPs as mentioned in point No.(ii),
into the Govt. Accounts, more particularly in the Sub-Office Daily Account, Sub Office
Journal, Sub-Office Stock Register etc. and fraudulently and dishonestly used the same as
genuine those Official records, as mentioned in point No.(iii) which he knew or had reason
to believe, at the time of such use, to be forged documents and thereby committed an
offence punishable u/s 471, IPC?
(v) Whether the above named accused in course of his holding such post, as
mentioned in point No. (i) received the following blank certificates of KVPs from the
Silchar Head Post Office-
Sl.
No.
KVP Certificate No. Denomiantion Invoice No. Date
1. 76BB217342-49 5000/- 01/03 23.04.20032. 01CD384461-500 10,000/- 02/03 22.08.2003
and sold the KVP certificates on 30.07.2003, 03.09.2003 and 13.10.2003, in the names of
Jyotirmoy Choudhury and Johar Choudhury, but he did not maintain the postal records
properly intending to willfully defraud and falsify the Guard file, Sub Post Office Account,
Stock register, accounts etc., which were maintained/supervised by him and thereby
committed the offence punishable u/s 477A IPC.?
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(vi) Whether the above named accused being a public servant, holding the post of
SPM, as referred to in the point No.(i) received a sum of Rs. 2.3 lakhs being the sale
proceeds of KVPs sold in the names of Jyotirmoy Choudhury and Johar Choudhury, but he
did not credit the same into the Govt. Account and thus abusing his official position as
such public servant, committed criminal misconduct by dishonestly and fraudulently
misappropriating the said amount and converting the same for his own use and thus he is
punishable for offences u/s 13(1)(c), R/W section 13(2) of the P.C. Act.?
The case may be discussed under the following heads:-
(A) WHETHER THE ACCUSED DIGISH CH. BARMAN WAS POSTED AS
THE SPM OF THE JOYPUR RAJABAZAR SPO, DURING THE
RELEVANT PERIOD OF 08.08.2001 TO 08.06.2005:
5. Kripesh Ranjan Roy(P.W. 11), the then retired Superintendent of
Post, Cachar Division, Silchar has deposed that the accused Digish Barman was posted as
the SPM in the Joypur Rajabazar SPO during the period of 08.08.2001 to 08.06.2005.
Arun Jyoti Paul(P.W. 2). The then Assistant Superintendent of Post, North
Division, Silchar has also narrated in his evidence that the accused Digish Ch. Barman was
posted as the SPM of the Joypur Rajabazare SPO vide Ext. 5(personal file of Digish Ch.
Barman) and that he was relieved ffrom the said charge on 08.06.2005, vide Ext.
5/4(proved in original, the full signature of Digish Ch. Barman) as relieved officer.
This categorical evidence of P.W. 2 and P.W.11 are not disputed by the
accused, rather he has specifically admitted the same in his statement recorded u/s 313
Cr.P.C.
That being the position, it is reasonably and indisputably held that
the accused Digish Ch. Barman was posted as the SPM of the Joypur Rajabazar
SPO during the relevant period of 08.08.2001 to 08.06.2005.
(B) WHETHER THE JOYPUR RAJABAZAR SUB POST OFFICE WAS A
DOUBLE HANDED POST OFFICE? IF IT WAS SO, WHO WAS THE POSTAL
ASSISTANT AT THE MATERIAL POINT OF TIME?
6. It is admittedly stated by Bidit Bhushan Dutta(P.W.4), in his evidence that
during the period of 2000 to 23.01.2004, he was posted as the Postal Assistant at the
Joypur Rajabazar SPO and that at that relevant time Digish Ch. Barman was the SPM of
the said SPO. Similarly, we find from the evidence of Kripesh Ranjan Roy(P.W. 11), the
Retired Sr. Superintendent of Post that the said SPO was a double handed Post Office,
assisted by a Postal Assistant/Counter Assistant.
That Bidit Bhushan Dutta was the Postal Assistant of Joypur Rajabazar SPO
at the material point of time is also specifically admitted by the accused, in his statement
recorded under section 313 Cr.P.C.
7
Thus it is found established from the materials on record that the Joypur
Rajabazar SPO was a Double Handed Post Office at the material point of time, assisted
by Bidit Bhushan Dutta, as its Postal Assistant, besides the accused Digish Ch. Barman,
rendering his services as the SPM at the relevant period of time.
(C) WHO RECEIVED THE CASH AMOUNT FOR ISSUING KVP
CERTIFICATES UNDER5 EXTs 7 TO 33? TESTIMONIES OF P.Ws AS
REGARDS ITS PROCEDURE AND FOLLOW-UP ACTIONS
7. Jyotirmoy Choudhury(P.W. 6), has deposed that with his retirement
benefits, he purchased KVPs from the Joypur Rajabazar Sub-Post Office as follows:-
Sl.
No.
Date No. of
KVPs
Exhibits Denomination
(in Rupees)
Total
(In Rupees)a. 30.07.2003 8 7-14 5000/- 40,000/-
b. 30.07.2003 2 20-21 10,000/- 20,000/-
c. 03.09.2003 5 15-19 10,000/- 50,000/-
d. 13.10.2003 8 22-29 10,000/- 80,000/-
e. 13.10.2003 4 30-33 10,000/- 40,000/-
Total 27 Nos. Rs. 2,30,000/-
According to P.W. 6, at that relevant time of purchasing the Exts. 7 to 33
KVPs, the accused Digish Ch. Barman was the SPM of the Joypur Rajabazar SPO. As
added by P.W. 6 in his evidence, the aforesaid KVPs were purchased by him directly from
the Joypur Rajabazar SPO, handing over the price of each KVPs to the accused Digish Ch.
Barman and accordingly he issued and handed over the aforesaid KVPs to him.
Similarly, we find in the evidence of Arun Jyoti Paul(P.W.2), the then
Assistant Superintendent of Post, North Sub Division, Silchar that in KVP certificates, the
SPM must put his signatures and give the Registration number, as per his Guard file, date
of issue, name of purchaser in the certificate along with the Office stamp seal. On receipt
of KVPs from the Head Post Office, these are to be entered in the Stock Register of the
SPO and after selling out the KVPs, the same should be noted in the Stock register and
balance should be reduced. The application form for purchasing KVP/NSC is to be kept
with KVP/NSC Guard file in safe custody. In the application form, the SPM concerned must
put his signature with seal. The SPM will prepare KVP issue Journal, denomination-wise,
regarding the sale of KVPs. He also requires to credit the sale proceeds of the KVPs in the
Sub Office Account as well as Sub Office Daily Account. It is also specific evidence of P.W.
2 that in KVPs Exts. 7 to 33, Ext. 7/1 to Ext. 7/33 are the signatures of the accused Digish
Ch. Barman, as the then SPM of the Joypur Rajabazar SPO.
8
P.W. 2 has further deposed to the effect that at page 17 of Ext.
35 (Guard file of Joypur Rajabazar SPO), the application for purchase of eight(8) Nos. of
KVPs of Rs. 5000/- each denomination is available and it appears that KVP certificates
bearing No. 76BB217342 to 76BB217349, total eight(8) Nos. had been issued by the
accused Digish Ch. Barman, as the SPM of the Joypur Rajabazar SPO Ext. 35/1 is the said
application form, submitted by Jyotirmoy Choudhury, bearing registration No. 673, dated
10.09.2004; wherein Ext. 35/2 is the signature of the accused Digish Ch. Barman, as the
then SPM of the said SPO. Ext. 36 is the other Guard file(proved in original) for the period
of 30.03.2002 to 26.09.2006 for purpose of KVP, wherein, applications for purchase of
KVPs under Exts. 36/1 to 36/7 are placed. Further, as added by P.W. 2, it transpires that
vide Ext. 36(proved in original, Guard file) application for purchase of KVPs vide
Registration No. 672 to 657 and 681 to 683 were received at the Joypur Rajabazar SPO.
It is also added by P.W. 2 in his evidence that as per Ext. 1(certified copy of
the Stock register of KVP of Rs. 5000/- denomination) maintained at the Silchar Head
Post Office, w.e.f. 19.01.2003 to 24.04.2003) and as per Ext. 1/1, Ext. 7 to Ext. 14, KVP
certificates were sent to Joypur Rajabazar SPO by Silchar Head Post Office, vide Invoice
No. 01/03, dated 23.04.2003. Similarly, vide Ext. 2(certified copy of Stock register for
KVPs of Rs. 10,000/- denomination with relevant pages, maintained at Silchar Head post
Office, w.e.f. 23.04.2003 to 25.04.2003) and as per Ext. 2/1 entry, Exts. 15, 20 and 21
KVP certificates were sent to Silchar Head Post Office, vide Invoice No. 02/03,
dated 23.04.2003. As per Ext. 2/2 entry, Exts. 16 to 19 and Exts. 20 to Ext. 33 KVP
certificates were sent to Joypur Rajabazar SPO from Head Post Office, vide invoice No. 2,
dated 22.08.2003.
8. In the evidence of Bidit Bhushan Dutta(P.W. 4), the then Postal Assistant
during the period of 2001 to 23.01.2004, what we find is that at such relevant point of
time Digish Ch. Barman was the SPM of the said SPO and that he was overall in-charge of
the SPO. In the three(3) almirahs, where the KVPs, NSCs, Account Book, Guard file etc.
were kept, keys of those almirahs were kept by Digish Ch. Barman, the then SPM of the
Joypur Rajabazar SPO, except the key of the safe locker, where only cash amount was
kept, was lying with him. No other persons had access to those files, instruments and
records and that Digish Ch. Barman, the then SPM of the Joypur Rajabazar SPO was the
only authorized to sign the KVPs/NSCs and other documents of SPO. As added by P.W. 4,
Ext. 7 to 29, KVPs were issued in the name of Jyotirmoy Choudhury and Ext. 30 to 33
KVPs were issued in the name of Johar Choudhury from Joypur Rajabazar SPO, during the
year 2003. Those exhibits were written by Digish Ch. Barman, in his own handwriting and
that Ext. 7/1 to 33/1 are the signatures of Digish Ch. Barman with the seal of SPM of the
Joypur Rajabazar SPO.
9
P.W 4 has further added in his evidence that on 17.04.2009, the I.O. of this
case seized the exhibits 7 to 33, as produced by Jyotirmoy Choudhury.
According to P.W.4, the sale proceeds of KVPs are received by the SPM
himself when the purchaser pays money, the duty to credit the sale proceeds of
KVPs/NSCs in the Sub Post Office Account Book is entrusted to the SPM. As added by P.W
4, in the Sub Post Offices, the Sub Office Daily Account Book is also maintained by the
SPM. According to P.W. 4, it is mandatory to submit the Sub Office Daily Account to the
Head post Office, where Daily Transaction of the Sub Post Office are recorded.
P.W 4 has further narrated in his evidence that Ext. 38 is the certified copy
of the Sub Post Office’s Daily Account of the Joypur Rajabazar SPO, dated
30.07.2003. Ext. 7 to 14 and Ext. 20 and Ext. 21(KVPs) were issued on 30.07.2003,
but in Ext. 38 there is no mention of any such sale of KVPs on that day.
It further transpires from the evidence of P.W. 4 that the said Sub Office
Daily Account was submitted to the Head Post Office by Digish Ch. Barman in his own
handwriting and signatures. In place of joint custodian also Digish Ch. Barman used to put
his signature, apart from putting his signature on the column meant for the SPM.
According to P.W 4, Ext. 39 is the certified copy of the Sub Post Office Daily Account of
Joypur Rajabazar SPO, dated 03.09.2003. Ext. 15 to Ext. 19(KVPs) were issued on
03.09.2003, but in Ext. 39, there is no mention of any such sale of KVPs on that
day.
P.W 4 is also very much specific in his evidence that said SPO’s Daily
Account was submitted to the Head post Office by Digish Ch. Barman in his own
handwriting and signatures. In place of signature of joint custodian also Sri Digish Ch.
Barman used to put his signature, apart from his signature in the column meant for the
SPM.
Ext. 34 (proved in original) is the Sub Office Account Book of Joypur
Rajabazar SPO, for the period of June, 2003 to May, 2004. Ext. 34/1 is the relevant page
showing entries of transaction, dated 30.07.2003 to 28.08.2003, but there is no credit
on 30.07.2003, showing sale of KVPs.
Ext. 34/2 is the relevant page, showing entries of relevant transaction,
dated 29.08.2003 to 27.09.2003, but there is no credit entry on 03.09.2003,
showing sale of KVPs.
Ext. 34/3 is the relevant page, showing entries of transaction, dated
29.09.2003 to 29.10.2003, but there is no credit entry on 13.10.2003, showing sale
of KVPs.
10
It is also narrated by P.W 4 in his evidence that in the Sub Office Account
Book, daily transactions are entered daily under the relevant heads by the SPM. The
entries Ext. 34/1, 34/2 and Ext. 34/3 were made by the accused Digish Ch. Barman in his
own handwriting.
Thus, according to P.W 4, in its entirety, the sale proceeds of Ext.
7 to Ext. 33 have not been credited in ext. 34(Sub Office Account Book of the
Joypur Rajabazar Sub-Post Office) by the accused Digish Ch. Barman.
As added by P.W. 4 in his evidence, Ext. 35/1 is the original Application
Form for purchasing KVP by Jyotirmoy Choudhury, which bears the signature of accused
Digish Ch. Barman. Vide this Application (Ext. 35/1), KVPs bearing No. 76BB21734 to
76BB217349 on 10.09.2004, in the handwriting of the accused Digish Ch. Barman were
issued.
Ext. 35/3 is another application form from Jyotirmoy Choudhury for
purchasing KVP, which bears the signature of the accused Digish Ch. Barman. Ext. 35/4 is
the signature of the accused Digish Ch. Barman.
It is seen from Ext. 35/3 (application) for KVPs Bearing No. 01CD399700,
22CD384461 and 22CD3884462 were issued on 10.09.2004, which were written in the
handwriting of the accused Digish Ch. Barman.
Ext. 35/5 is another application form of Jyotirmoy Choudhury for
purchasing KVPs, which bears the signature of Digish Ch. Barman (Ext. 35/6). According
to P.W 4, vide Ext. 35/5(application form), it is shown that KVPs bearing No. 22CD384463
to 22ZCD384464 were issued on 10.09.2004, in the handwriting of the accused Digish Ch.
Barman.
Ext. 35/7 is another application form of Jyotirmoy Choudhury for
purchasing KVP, which bears the signature of Digish Ch. Barman (Ext. 35/8). Vide Ext.
35/7, according to P.W. 4, it is seen that KVP bearing No. 01CD399698 and 01CD399699
were issued on 10.09.2004 in the handwriting of the accused Digish Ch. Barman.
Ext. 22 to Ext. 25 were issued under registration Nos. 681, Ext. 26 to Ext.
29 were issued under registration No. 682 and Ext. 30 to ext. 33 were issued under
registration No. 683 by Digish Ch. Barman on 13.10.2003.
Further, it appears from Ext. 4 (KVP Stock Register of Rs. 10,000/- of
Joypur Rajabazar SPO) that on 25.08.2003 KVP bearing No. 22CD3844612 to 384500
were received at the Joypur Rajabazar SPO by Digish Ch. Barman, but no corresponding
entries were made by Digish Ch. Barman in respect of those KVPs. Further, in evidence of
P.W. 4 it appears that in Ext. 3(relevant pages Stock Register for Rs. 5000/- denomination
under the handwriting of Digish Ch. Barman) no entries, regarding the receipt of
KVPs bearing No. 76BB217341 to 76BB217360 on 23.04.2003 are made. P.W. 4
11
has further added in his evidence that during the said period, the accused Digish Ch.
Barman being the SPM of Joypur Rajabazar SPO, was responsible for maintaining the said
Stock Registers.
9. As regards the procedure for purchasing NSC/KVPs in such
SPO, the evidence of Laxmi Kanta Das(P.W. 8), the then Assistant Post Master of the
Silchar Head Post Office is that for that purpose the purchaser has to submit application at
the Post Office together with the amount.
According to P.W. 8, in the SPO, the SPM processes the same and issues
NSCs/KVPs, as applied for by the applicant. Further, the SPM is required to maintain the
issue journal, regarding the issuance of NSCV/KVPs, to enter the sale proceeds into the
Sub Office Account Book and to send Sub Office Account to the Head Post Office along
with the issue journal mentioning the sale proceeds received therein. The application for
NSCs or KVPs are kept in the respective Guard file consecutively, as per the allotted
registration number.
10. Prafulla Choudhury(P.W. 10), the then Head Post Master has
deposed that the SPM is the overall in-charge of the SPO concerned. The SPM is
responsible for receiving and issuing NSC/KVP, receiving price thereon, preparation and
sending of SPO’s Daily Account, maintaining of SPO’s Account Book, maintaining
application for NSCs/KVPs in Guard file.
11. P.W. 10 has further added in his evidence that the investor has to
collect and fill up the application form by himself or through authorized agent. The
purchaser has to put his signatures in the application form. If the investor/purchaser is
illiterate, in that case, he/she has to put his/her thump impression in the application form.
The application along with the cash amount is to be deposited to the SPM and the SPM
on receiving the same, will put the registration number, nominee registration number(if
there is a nominee) and serial number of the KVP/NSC along with denomination in the
application form. The SPM also requires to put his signature with seal and date in the
application form. Thereafter, the SPM fills up the KVP/NSC, mentioning therein the name
and address of the purchaser, registration number, date of issue, registration number and
also put the date stamp of the Post Office including his signature etc. Then the KVP/NSC
is handed over to the purchaser.
According to him, the SPM also prepares KVP/NSC Issue Journal
denomination wise, in triplicate, Sub Office Daily Account- wherein the sale proceeds of
KVPs/NSCs are entered and Sub Office Daily Account Book is also to be maintained by
entering the sale proceeds of KVP/NSC. The first copy and the last copy of the KVP of KVP
Issue Journal are then sent to the Head Post Office by the SPM. The application form for
12
purchase of KVP/NSC against which certificates are issued are to be kept in the Guard file
of the SPO.
It is also found from the evidence of P.W 10, that the Blank KVP/NSC are
supplied to the Head Post Office through invoice to the SPO on the basis of indent of
the concerned SPO. One copy of the invoice is to be kept in the SPO and the other copy is
returned to the Head Post Office for confirmation. In the SPO, Stock Register is
maintained denomination wise, in which on receipt of KVPs/NSCs, the SPM is to enter the
details of the KVPs/NSCs sold and reduce the stock accordingly.
12. Vivek Vimal(P.W. 12), the then Assistant Superintendent of Post has
also deposed to the effect that, as per Postal Manual, the Sub Post Office Account Book is
jointly prepared by the SPM and the Postal Assistant of the concerned SPO.
13. Thus, from the Official Post Office witnesses, as discussed
above and in so far examined by the Prosecution; more particularly from the
evidence of Arun Jyoti Paul(P.W. 2), Bidit Bhushan Dutta(P.W. 4), Laxmi Kanta
Das(P.W. 8), Prafulla Choudhury(P.W. 10) and Vivek Vimal (P.W. 12), in a
nutshell, it is clear that soon after the receipt of application for purchasing KVP
in a SPO, the SPM of the concerned SPO is to make entry of the sale proceeds in
the Sub Office Daily Account, which is regularly sent to the Head Post Office
concerned for further necessary action.
14. I have read and re-read, looked and re-looked the KVPs
under Exts 7 to 33, which evidently bear the signatures of the accused Digish Ch.
Barman, as the SPM of the Joypur Rajabazar Sub-Post Office under Exts. 7/1 to 33/1,
which cannot be reasonably denied.
(D) MATERIAL ANALYSIS:
15. As already discussed, it is admittedly established that the accused
Digish Ch. Barman was the Sub Post Master of the Joypur Rajabazar Sub Post Office,
during the period of 08.08.2001 to 08.06.2005. It is also established from the evidence of
Kripesh Ranjan Roy(P.W. 11) that the Joypur Rajabazar SPO was a double handed SPO
and that Bidit Bhushan Dutta was admittedly the Postal/Counter Assistant of the said
SPO at the material point of time of occurrence. This very fact is categorically
admitted by the accused in his statement recorded u/s 313 Cr.P.C.
16. At the cost of repeatation, as already discussed, it may be
recorded here that the main thrust of plea of the accused Digish Ch. Barman in his
statement recorded u/s 313 Cr.P.C is that Bidit Bhushan Dutta being the Postal
Assistant of the said Post Office at the relevant time, received the sale
proceeds from the customer concerned with respect to KVPs under Exts. 7 to
13
33 and therefore, he was only responsible for not crediting the sale proceeds of
those KVPs in the Sub Office Account Book of the Joypur Rajabazar SPO(Ext. 34) on
30.07.2003, 03.09.2003 and 13.10.2003 and that he (the accused) was not
responsible for such a phenomena. According to the accused, as narrated by him in
his statement recorded u/s 313, Cr.P.C. that the maintaining of KVP Stock register, Sub
Office Account Book were under joint responsibilities of Bidit Bhushan Dutta, the then
Postal Assistant of the concerned SPO and that of himself, as its SPM. The accused has,
however, denied the evidence on record against him that during the relevant period
of time, while he was rendering his services as the SPM at the Joypur Rajabazar SPO, he
had issued total 27(twenty seven) Nos. of KVPs on 30.07.2003, 03.09.2003 and
13.10.2003, in the names of Jyotirmoy Choudhury and Johar Choudhury for a total
amount of Rs. 2.3 lakhs, receiving the cash amount from the purchaser, that he had
not deposited the said amount in the Govt. Account and that he has misused the
same for his own use.
17. In such an eventuality, we may recapitulate the material evidence
on record, as adduced by the P.Ws.
18. According to Chanchala Rani Das(P.W. 1) and Arun Jyoti Paul(P.W.
2), both retired Postal Officials; through KVPs Stock Registers of Silchar Head post
Office(Exts. 1 and 2), besides other KVPs, KVPs under Exts. 7 to 33 were also issued to
the Joypur Rajabazar SPO. But, as it transpires from the evidence of P.W. 1, that there
are/were no entries of those KVPs Ext. 7 to 33 in the corresponding Stock
register (Exts. 3 to 4) of the Joypur Rajabazar SPO. Moreover, what we find from
the evidence of Arun Jyoti Paul(P.W. 2) that the sale proceeds of those KVPs, under Exts.
7 to 33 were not credited in the Sub Office Daily Account Book of joypur
Rajabazar SPO(Ext. 34) maintained for the period of June 2003 to May 2004.
19. From the evidence of Jyotirmoy Choudhury(P.W. 6), it is evident that
on his application vide Ext. 35/1, 35/3, 35/5 and 35/7; total 27(twenty seven) Nos. of
KVPs under Exts. 7 to 33 were issued by the Joypur Rajabazar SPO, in favour of him by
the accused Digish Ch. Barman, while he was the SPM of the said SPO.
20. As regards the procedure adopted in the Sub Post Offices, relating
to the Issue of KVPs what further, Laxmi Kanta Das(P.W. 8), the former Assistant Post
Master has narrated in his evidence that following receipt of applications for purchase of
KVPs together with the amount, the SPM processes the same and issues the KVps to the
applicant. He then enters the sale proceeds in the SPO Account Book, maintains the issue
14
Journals, regarding issue of the KVPs and sends Daily Account to the Head Post Office
along with the Issue Journal, mentioning the KVPs therein.
21. Similarly, we find from the evidence of Prafulla Choudhury(P.W. 10),
the Retired Post master to the effect that on receiving the application for purchase of KVP
from the investor or through his authorized agent along with the cash amount, as in the
instant case in hand, the cash amount is deposited with the SPM, while he(the SPM)
putting all other necessary particulars, including putting his signatures and seal of the Post
Office in the KVP certificates, issue the same in favour of the investor. The SPM also
prepares the Issue Journal and Sub Office Account Book, wherein the sale proceeds of the
KVP certificates so issued in favour of the investor are recorded. The SPM also prepares
Issue Journal in triplicate. The first and third copy of the Issue Journal along with the
SPO’s Daily Account are sent to the Head post Office by the SPM. The application so
received for purchase of KVPs on the basis of which the KVPs are issued, are put in the
Guard file. According to P.W. 10, the blank KVPs are received at the SPO from the Head
Post Office on the basis of indent/requisition from the SPM concerned.
22. According to Vivek Vimal(P.W 12), the then Assistant Superintendent
of Post Office, as per Postal Manual, the Sub Office Account Book is to be jointly prepared
by the SPM and the Postal Assistant of the concerned SPO.
23. On the back drop of such materials on record, we may now
proceed to examine the most relevant and vital circumstance in this case- to examine as
to upon whom the responsibilities are cast- either on the SPM or on the Postal
Assistant- to record or to make entry of the KVPs so sold in the corresponding
Stock Register, on receiving the sale proceeds in a double handed SPO, as in
the instant case in hand, under the Rules so framed for the purpose?
(E) Rules under the Post Office Savings Bank Manual, Vol-II:
24. In the above perspective, Rules under the above referred manual
appearing to be the most vital and relevant, I have taken judicial notice of the Rules,
Regulations and Procedures, as compiled under the Central Govt’s Small Savings Scheme
and Cash Certificates etc. under the above referred manual; u/s 57 of the
Evidence Act.
In fact, this manual is supplied by the Ld. Counsel for the accused,
in course of argument, with a view to take judicial notice of those Rules by this
Court.
25. CUSTODY OF CERTIFICATES:
15
Rule 4 of the said manual at page-4 deals with the custody of
certificates. Under Rule 4(1), the Post Master, i.e. the Sub Post Master in our instant case
in hand, issues certificates to the Counter Assistant for issue, as soon as an application for
purchase is received at the Counter. Under Rule 4(2), the Post Master will be responsible
for security of the certificates kept by him and all Postal Officials entrusted with the
certificates will be personally responsible in case of loss, theft or misuse, caused by their
negligence. Blank certificates shall always be exchanged under proper receipt. Rule 4(3)
also provides that certificate received in a Post office for any purpose should be kept in
the personal custody of the Post Master, who will be responsible for their safe custody till
disposal.
That being the position, the Post master cannot shift/avoid
responsibilities for safe custody of the KVPs issued from the Sub-Post Office.
26. On going through the KVPs- under Ext. 7 to 33, what I find is that
those KVPs evidently bear the signatures of the accused Digish Ch. Barman, under Exts.
7/1 to 33/1, as the SPM of the Joypur Rajabazar SPO, as deposed by Arun Jyoti Paul(P.W
2). This piece of credential evidence to the effect that the accused Digish Ch.
Barman had issued KVPs under Ext. 7 to 33 at the material point of time, while
he was discharging his duties as the SPM of the Joypur Rajabazar SPO, in the
absence of anything shown to the contrary, cannot be reasonably ignored or
brushed aside.
27. MAINTENANCE OF STOCK REGISTER:
Coupled with the custody of certificate under Rule 4, as already
discussed, the maintenance of Stock Register under Rule 5, is also equally very much
important and relevant. Rule 5(1) stipulates that all supplies of certificates received at the
SPO(as in our case), must be entered in the Stock Register(NC-12) on the date of receipt.
A separate Register or sheet of pages in the Register should be allotted for each
denomination and type. The first and last serial Nos. of each block of certificates, total
number received and the balance in hand shall be entered in the relevant column of the
Stock register. The total number of certificates issued along with the serial number shall
be shown in the issue column of the register against date of issue and the balance should
be verified once in a month by the post Master, who should initial and put date in the
registers in the column provided for the purpose, in token of having exercised the check.
In this connection, the specimen of form (NC- 12) is as follows:-
SPECIMEN FORM
Denomination Rs…………………………………..
16
Stock Register of…………………………………certificates Of…………………issue
Date of
transacti
on
No. and
date of
invoice
with
which
received
or issued
Name of
office from
which
received or
to which
issued or
designation
of official to
which issued
Block No.
of
certificate
s received
or issued
NUMBER INITIALS
Receiv
ed
Issu
ed
Balan
ce
of
counter
Assista
nt
of
Post
mast
er
Remar
ks
28. PREPARATION OF JOPURNALS OF CERTIFICATES ISSUED,
(Rule 20)
(i) The particulars of the certificates issued shall be entered in the
Journals of certificates issued in Form N.C. 18(S) for S.O.s. Separate journals shall be
prepared for each series and denomination of certificate. The entries will appear opposite
an “Entry No.” to be made in a consecutive monthly series and daily totals of all the
entries will be made in the column for remarks against the last entry of the day in each
journal instead of below it, in order that the entries of the following day may be
commenced from the next entry No. on the same sheet. Care must be taken to see that
the serial number of the certificates issued are entered clearly and distinctly and that the
index letter and No. prefixed to the serial No. are invariably included, as without these it
will be difficult for Postal Accounts Office to write up their records correctly.
(ii) In Head Offices and Sub Offices, where the counter work is done
by an Assistant, the postmaster or Supervising Officer, who holds the stock of
certificates, should check and initial the journal of certificates issued daily in
order to ensure that the value of every certificate taken out of stock during the
17
day and not returned to him at the close of the day has been credited in the
accounts.
Besides the credential oral testimonies, as already discussed, these rules
too, as depicted above, without any ambiguity cast supervisory duties and
responsibilities on the SPM more particularly, with respect to the custody of KVP
certificates, received at the SPO; Maintaining of Stock Registers, showing entries of KVPs
sold daily with specific reference to its preparation, maintenance and supervisory duties
entrusted on him to check and to put initials to ensure that the value of every
certificate taken out of Stock during the day and not returned to the SPM at the
close of the day, has been credited into the account.
In the above premises, the only plea in his statement recorded u/sec 313
Cr.P.C. as raised by the accused Digish Ch. Barman, the then admitted SPM of the joypur
Rajabazar SPO at the relevant time, to the effect that Bidit Bhushan Dutta , who was
rendering his services as the Postal Assistant in the same SPO at the relevant period of
time; received the cash amount for the KVPs issued under Exts. 7 to 33 was only
responsible for not crediting the sale proceeds of those KVps in the SPO’s Daily Account of
the said SPO, coupled with the above referred Post office Manual Rules, deserves top
most consideration.
29. As already depicted that the KVPs under Exts. 7 to 33 bear the
signatures of the accused Digish Ch. Barman as the SPM of the Joypur Rajabazar SPO,
under exhibits7/1 to 33/1 is evident from the materials on record. That the accused Digish
Ch. Barman was the SPM of the Joypur Rajabazar SPO at the relevant period of time is
also admitted position in this case. No material is placed on record, that he(the
accused) ever raised any such objection, in discharging his supervisory duties for
not crediting the sale proceeds of the KVPs in the Sub Office Daily Account of the
said SPO, by Bijit Bhushan Dutta, the then Postal Assistant.
30. Thus, astonishingly, amazingly and intriguingly relevant questions
that reasonably come to one’s mind are that-
(i) The accused Digish Ch. Barman being a sufficiently senior Postal
official, did he in any manner carried out his responsive supervisory duties, entrusted on
him at the relevant period of time, more particularly, did he raise any objection for
not recording the sale proceeds of the KVPs under Exts. 7 to 33 by Bijit Bhushan
Dutta, the then Postal Assistant in the Sub Office Daily Account, not preparing daily
journals etc. correctly?
(ii) Did he in any way bring the matter to the notice of the
Higher Authorities concerned, for not crediting the sale proceeds of the KVPs, sold
18
under Exts. 7 to 33 into the Sub Office Daily Account and for not preparing the Daily
Journals correctly etc.?
Big negative answers certainly emerge from the materials on record
on those questions.
In the above perspective, in my considered view the plea, as
raised by the accused above, must be viewed as having no basis, an
afterthought plea and therefore, the same cannot inspire confidence at all.
(F) REFLECTIONS IN THE SUBMISSIONS OF THE RESPECTIVE
LEARNED COUNSELS.
(i) DEFECTIVE INVESTIGATION :
In course of argument, learned defence Counsel Mr. A. Sahad has raised
that A.P. Roy, the I.O.(P.W. 14) having admittedly stated in his evidence that he is/was
not conversant with the postal manual, that he did not know whether Joypur Rajabazar
SPO was a single handed or a double handed Post Office at the relevant time of
occurrence, that he did not know whether Sub Office Daily Account is/was to be signed
jointly by the SPM and the Postal Assistant etc.; having gone to root of the case, the
investigation in this case is perfunctory and not in accordance with law.
True it is, that much more efficiency was expected from the I.O.
concerned during investigation of this case in those matters raised. But, these
circumstances, as raised by the learned Defence Counsel, in my considered view, cannot
go to the root of the case to render the Prosecution case fatal and therefore, the
submission of the Ld. Defence Counsel cannot be accepted.
(ii) NON APPLICATION OF MIND BY THE
SANCTIONING AUTHORITY :
The Ld. Counsel for the accused has further raised that Kripesh Ranjan Roy
(P.W. 11), did not apply his mind while according the sanction against the accused Digish
Ch. Barman in connection with this case.
In this connection, the learned Defence Counsel has relied on the decision
of the Hon’ble Supreme Court in CBI-vs-Ashok Kr. Aggarwal, reported in (2015)
1 SCC (cri) 344 ; (2014) 14 SCC 294, wherein it was held that for a valid sanction,
prosecution has to establish and satisfy the Court that entire relevant facts had been
placed before the sanctioning authority and the authority had applied its mind and
granted sanction in accordance with law.
19
On the other hand, Mr. Purkayastha, the Ld. Spl. P.P. relying on the decision
of the Hon’ble Supreme Court in State of Maharashtra (through CBI) –vs-
Mahesh G. Jain reported in (2013) 8 SCC 119 ; (2014)1 SCC (cri) 515, has
submitted that though grant of sanction is a secrocent act and it is intended to provide
safeguard to the public servant against vexatious litigation, but simultaneously, when
there is an order of sanction by the competent authority indicating application of mind,
the same should not be lightly dealt with. The flimsy technicalities cannot be
allowed to become tools in the hands of an accused.
The Hon’ble Supreme Court observed in the above referred case, as
submitted by the Spl. P.P. that -
“Minor irregularities or technicalities are not to be given Everestine status.
It should be borne in mind that historically corruption is a disquiet disease for healthy
governance. It has the potentiality to stifle the progress of a civilized society. It ushers in
an atmosphere of distrust. Corruption fundamentally is perversion and infectious and an
individual perversity can become a social evil.”
I have considered the rival submissions of the learned Counsels of both
sides. I have also carefully gone through the Sanction Order (Ext.42) in this case.
It may be usefully added here that the PW-11, in his evidence specifically
narrated that while according such sanction, he had perused the materials in its entirety,
as submitted by CBI against the accused, as contained in File No.F1-3/08-09, that he
applied his mind and being satisfied that it is/was a fit case to prosecute against the
accused before the Court of law, he accorded sanction vide Ext.42. It may be recorded
here that the witness was subjected to sufficient cross-examination, but no credible
material is elicited during such cross-examination so as to discredit the witness. Moreover,
no question was put during cross-examination of this witness, as to what materials, more
particularly, as to whether materials in the Case Diary, documents collected during the
course of investigation, statements recorded u/s 161 & 164 CrPC were placed before him
or not.
Nothing appears, on a bare perusal of the Ext.42, that the
sanctioning authority did not apply his mind, while according sanction against
the accused.
In the light of above discussions, I find no force in the submission of the
learned defence Counsel.
iii) SECONDARY EVIDENCE IS LIGHTLY UTILISED BY
THE PROSECUTION :
The next submission for the Ld. Counsel for the Defence is that the
secondary evidence are lightly utilised by the prosecution in this case. Sec.65 of the
20
Evidence Act, however, permits secondary evidence to be given of the existence,
condition, contents of documents and circumstances mentioned. The conditions laid down
in the said section must be fulfilled before secondary evidence may be admitted.
Secondary evidence of the contents of a document cannot be admitted without non-
production of the original being first accounted for in such manner as to bring it within
one or other of the cases, as provided in the section.
In this case, the learned defence Counsel has relied on the decision of the
Hon’ble Supreme Court in U. Sree (appellant) -vs- U. Srinivas, reported in
(2013)2 SCC 114.
On the other hand, Mr. Purkayastha, the Ld. Spl. P.P. has referred to the
provisions of Sec.76 to 78 of the Evidence Act, as counter to the submission to the Ld.
Defence Counsel.
With my humble respect to all concerned, I may be permitted to
record here that the above referred case before the Hon’ble Supreme Court is
distinguishable from the present case in hand because of the fact that in the above
referred case, the Hon’ble Supreme Court had the occasion to deal with the xerox copy
of the letter dated 18.10.1995 (Ext.R-8), whereas it is not such a case in the present
case in hand.
On the other hand, total 3(three) nos. of cases including the
present one stands against the same accused in this Court. At the first instance,
on looking to the certified xerox copy of the KVP Stock Registers of the Silchar Head Post
Office of Rs.5,000/- denominations (Ext.1); it is clearly transpires that its originals are kept
in the Spl. Case No.43/08 pending before this Court. Similarly, from the proved in
original copies of the KVP Stock Registers of the Joypur Raja Bazar Sub Post office (Exts.3
& 4), it is also found that the originals are lying with the case record of Spl. Case
No.43/08.
Moreover, the Sub Office Account of Joypur Raja Bazar Sub Post office
(Ext.34) and the Guard File of the Joypur Raja Bazar Sub Post office (Ext.36) reveal that
the original are lying with the other Spl. Case No.43/08.
On a careful perusal of the evidence on record, it manifestly transpires that
those documents are received in evidence without any objection from the defence side.
In the above premises, as in the instant case in hand, the originals of the
documents, as referred to above, are lying with the other case viz. the Spl. Case
No.43/08, pending before this Court against the same accused and that those
documents having received in evidence without raising any objection from the defence
side, in my considered view, no objection can be entertained at this stage too.
21
IV. FAILURE TO OFFER EXPLANATIONS IN THE
STATEMENT OF ACCUSED RECORDED U/S 313 CrPC :
CONSEQUENCES UNDER THE LAW FOLLOWS
As regards the plea raised by the accused in his statement recorded u/s
313 CrPC, without offering any explanation to those circumstances appearing against
him ; the Ld. Spl. P.P. has relied on the following decisions :-
1. Devender Kr. Singla -vs- Baldev Krishan Singla, reported in
(2005)9 SCC 15,
2. Jagroop Singh -vs- State of Punjab, reported in
(2013) 1 SCC (cri) 1136 ; (2012) 11 SCC 768,
3. Brajendra Singh -vs- St. of Madhya Pradesh,
reported in (2012) 4 SCC 289,
AND
4. Abdul Hakim Qadri -vs- State of Assam,
reported in (2013) 2 GLR 687.
Learned Special P.P. has submitted that the statement u/s 313 CrPC is not
evidence. It is only the accused’s stand or version by way of explanation, when
incriminating materials appearing against him are brought to his notice.
In the above referred Devender Kr. Singla case, the Hon’ble Supreme
Court held that mere denial by the accused, the circumstances appearing against him in
his examination U/Sec. 313 CrPC is of no consequence. Absence of any suggestion cannot
be made up by a statement u/s 313 CrPC.
In Jagroop Singh case (supra), the Hon’ble Supreme Court held on
putting the incriminating circumstance which point to the guilt of accused, if yet the
accused could not give any explanation u/s 313 CrPC except denial, the same can be
counted as providing a missing link for completing the chain of circumstances.
In Brajendra Singh -vs- State of Madhya Pradesh as referred to
above, the Hon’ble Supreme Court held that one of the main objects of recording the
statement u/s 313 CrPC is to give an opportunity to the accused to explain the
circumstances appearing against him as well as to put forward his defence, if he so
desires. But, once he does not avail this opportunity, then consequences in law must
follow.
In above referred Abdul Hakim Qadri -vs- State of Assam, wherein
the Division Bench of the Hon’ble Gauhati High Court held that false answers
given by an accused in his statement U/Sec. 313 CrPC, can also be counted as providing
missing link in the Prosecution Case.
22
In the instant case in hand, as already discussed, besides shifting his
responsibilities towards Bidit Bhusan Dutta, the then Postal Asstt. of the Joypur Raja Bazar
Sub Post Office, the accused Digish Ch. Barman, the then Post Master of the said Post
Office, has not preferred in any explanation in this regard as to under what circumstances,
he (the accused) could not receive the sale proceeds of the KVP under Exts.7 to
33 from Bidit Bhusan Dutta, the then Postal Asstt., as he was duty bound to receive the
same for those KVPs evidently sold in favour of the concerned purchasers, under his
signatures (Ext.7/1 to 33/1). Thus consequences under the law follows.
G. PROSECUTION UNFURLED, DEPICTED AND ESTABLISHED:
(i) In the instant case in hand, what the Prosecution has unfurled, depicted
and established are not only disturbing and disastrous but also reflective of the scenario
as to how hard earned retirement benefits of Jyotirmoy Choudhury (PW.6), was
deceitfully misappropriated for his own use by the accused Digish Ch. Barman in a well
planned manner and thus a pyramid of stresses, strains and sufferings were ingeniously
built by the accused taking advantage of his official position, as the Post Master of Joypur
Raja Bazar Sub Post Office at the relevant time.
(ii) From the discussion made above, what I find is that besides other
factors, the Prosecution clearly, successfully and beyond all reasonable doubt has
prominently established the circumstances that the accused Digish Ch. Barman was
admittedly and evidently the Sub Post Master of the Joypur Raja Bazar Sub Post Office
during the period of 08.8.2001 to 08.6.2005, that he issued/sold the KVPs under
Exts.7 to 33, under his signatures – Exts.7/1 to 33/1 as the Sub Post Master of Joypur
Raja Bazar Sub Post Office in favour of Jyotirmoy Choudhury and Johar Choudhury on
30.7.2003, 03.9.2003 and 30.10.2003 for an amount of Rs.2.3 lakhs, that he (the
accused) in his capacity as such public servant committed criminal breach of trust in
respect of those KVPs failing to reasonably account for the Sale Proceeds of those KVPs,
that he (the accused) fraudulently, tacitly and dishonestly did not make entry as regards
sale of those KVPs in the Sub Office Account Book, KVP Stock Register and the Journal
etc. of the said Sub Post Office, that he fraudulently used those Registers, documents etc.
of the said Sub Post Office as genuine knowing that those were forged, that he being a
public servant, willfully falsified those registers, books of accounts etc. with the intent to
dishonestly defraud the Postal authority concerned, that he being a public servant,
misappropriated the sale proceeds under the KVPs (Ext.7 to 33) for his own use, that he
being such public servant, committed criminal misconduct by dishonestly and fraudulently
misappropriating the sale proceeds of the KVPs under Ext.7 to 33 and converting the
same for his own use of the sale proceeds entrusted to him or under his control as such
public servant.
23
As already discussed, there reasonably appears nothing to show to the
contrary.
31. Accordingly, the accused Digish Ch. Barman is found and held guilty
for offences u/s 409, 468, 471 & 477A IPC and also for offence punishable u/s 13(1)(c)
r/w Sec.13(2) of the P.C. Act, 1988.
32. Heard the accused on the sentence and his statement U/Sec 248(2)
CrPC. is recorded.
The accused Digish Ch. Barman states that he being above 65 years of age,
is an ailing person.
He is the sole bread winner of the family.
In the aforesaid premises, prays to deal with the sentencing matter
leniently.
H. OBSERVATION OF THE HON’BLE SUPREME COURT ON:
1. WHITE COLLAR CRIMES, ON CORRUPTION :
In Nimmagadda Prasad (appellant) -vs- CBI (respondent) reported in
(2013) 7 SCC 466, at para 26, the Hon’ble Supreme court observed that
unfortunately, in the last few years, the country has been seeing an alarming rise in white
collar crimes, which has affected the fiber of country’s economic structure.
Incontrovertibly, economic offences have serious repercussions on the development of the
country as a whole.
In State of Maharashtra, through CBI (appellant) -vs- Mahesh G. Jain
(respondent) reported in (2013) 8 SCC 119, at para 17, the Hon’ble Supreme court
has further observed that it should be borne in mind that historically corruption is a
disquiet disease for healthy governance. It has the potentiality to stifle the progress of a
civilized society. It ushers in an atmosphere of distrust. Corruption fundamentally is
perversion as infectious and an individual perversity can become a social evil.
2. ON SENTENCE :
In Hazara Singh (appellant) -vs- Raj Kumar & others (respondent) reported
in (2013) 9 SCC 516, the Hon’ble Supreme court referred to its 3 Judge Bench
decision in Ahmed Hussein Vali, Mohammed Saiyed & another -vs- State of Gujarat
reported in (2009)7 SCC 254; wherein it was observed that justice demands that Courts
should impose punishment befitting the crime so that the Courts reflect public abhorrence
of the crime. The Court must not only keep in view the rights of the victim of the crime,
but the society at large too, while considering the imposition of appropriate punishment.
The Court will be failing in its duty, if appropriate punishment is not awarded for a crime,
24
which has been committed not only against the individual victim but also against the
society to which both the criminal and the victim belong.
Further, in Sumer Singh (appellant) -vs- Suraj Bhan Singh & others
(respondent) reported in (2014) 7 SCC 323, the Hon’ble Supreme Court referred to its
previous decision in State of M.P. -vs- Saleem @ Chamaru & another, reported in (2005) 5
SCC 554, wherein the Hon’ble Supreme court opined that the object of sentencing
should be to protect society and to deter the criminal that being the avowed object of law.
It further ruled that, it is expected that the Courts would operate the sentencing system
so as to impose such sentence which reflects the conscience of the society and the
sentencing process has to be stern where it should be.
I. SENTENCES TO UNDERFGO BY THE ACCUSED IN THIS CASE.
33. Considering the circumstances in its entirety, the accused Digish Chandra
Barman is sentenced to undergo R.I. for five years and to pay a fine of Rs.30,000/-, for
offence U/Sec 409 IPC. In default of payment of fine, he has to undergo R.I. for another
one year.
He is sentenced to undergo R.I. for three years and a fine of Rs.30,000/-
for offence U/S 468 IPC, in default of payment of fine, he is to undergo R.I. for another
one year.
The accused is sentenced to undergo S.I. for one year only for offence U/S
471 IPC.
The accused is also sentenced to undergo R.I. for five years with fine of
Rs.30,000/- for offence U/S 477A IPC , in default he is directed to undergo R.I. for
another one year.
Further, the accused is also sentenced to undergo R.I. for three years with
fine of Rs.30,000/- for offence U/S 13(1)(c) r/w Sec 13(2) of Prevention of Corruption Act,
1988. In default, he is directed to undergo R.I. for another one year.
The sentences are to run concurrently.
The period of detention, if any, already undergone by the accused, shall be
set off.
Supply a free copy of the judgment to the accused.
Send copies of the judgment and order to the District Magistrate, Kamrup
and the Hon’ble Gauhati High Court.
The seized documents, if there be any, may be retained in safe custody
until further order.
Given under my hand and seal of this court, today
the 8th April,2015.
25
DICTATED AND CORRECTED BY ME
(P.C. Das)
Special Judge, CBI, Assam,
Addl. CBI Court No. II,
CHANDMARI, GUWAHATI-3.
(P.C. Das)
Special Judge, CBI, Assam,
Addl. CBI Court No. II,
CHANDMARI, GUWAHATI-3.
26
A P P E N D I X
1) Prosecution Witnesses:- 1) Chanchalarani Das,
2) Arunjyoti Paul,
3) Shital Ch. Das,
4) Bidit Bhushan Dutta,
5) Kantimoy Nath,
6) Jyotirmoy Choudhury,
7) Amarendra Sen,
8) Lakshmi Kanta Das,
9) Shyamal Rajbongshi,
10) Prafulla Choudhury,
11) Kripesh Ranjan Roy,
12) Vivek Vimal,
13) W. Ashok Kumar Singh,
14) Atul Prasad Roy,
2) Defence Witnesses :- NIL.
3) Prosecution Exhibits :- Ext. 1 – Certified copy of KVP Stock
Register (Rs.5,000/-
Denomination),
Ext. 2 – Certified copy of KVP Stock
Register (Rs.10,000/-
Denomination),
Ext. 3 – Stock Register of KVP in
Jaypur Raja Bazar SO
(proved in original),
Ext. 4 – Stock Register of KVP
(proved in original),
Ext. 5 – Personal File of D.C. Barman,
Ext. 6 – Office Order File (O/O
the Sr. Suptdnt. of Posts,
Cachar Divn.),
Ext. 7 to 33 – KVPs,
Ext. 34 – Sub-Office Account,
Ext. 35 – KVP Issue Register of Jaypur
Raja Bazar SO,
27
Ext. 36 – KVP Issue Register of Jaypur
Raja Bazar SO (proved in original),
Ext. 37 – Seizure Memo dtd.17.4.2009,
Ext. 38 – Sub Office Daily Account of
Joypur Raja Bazar SO
dtd.30.7.2003,
Ext. 39 – Sub Office Daily Account of
Joypur Raja Bazar SO
dtd.03.9.2003,
Ext. 40 – Seizure Memo dtd.13.4.2009,
Ext. 41 – Seizure Memo dtd.13.5.2009,
Ext. 42 – Sanction Order,
Ext. 43 – FIR,
Ext. 44 – Forwarding Letter,
Ext. 45 – Seizure Memo dtd.27.4.2009,
Ext. 46 – Letter to CBI dtd.06.11.2009,
Ext. 47 – Charge-Sheet,
Ext. 48 – Forwarding Letter,
Defence exhibits : Nil.
(P.C. Das)
Special Judge, CBI, Assam,
Additional CBI Court No.2,
CHANDMARI, GUWAHATI-3.
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