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1 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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Page 1: IN THE COURT OF THE SPECIAL JUDGE, CBI, ASSAM, ADDL. CBI ...kamrupjudiciary.gov.in/apr-15 jdgmnt/8.4.15-addl.CBI2-Special Case … · [Nandlal Wasudeo Badwaik Vs Lata Nandlal Badwaik

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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

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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.

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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

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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.

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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.

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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.

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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.

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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

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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

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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

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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

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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:

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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…………………………………..

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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

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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

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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.

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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

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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.

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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.

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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.

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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,

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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.

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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.

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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,

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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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