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IN THE COURT OF SPECIAL JUDGE, ASSAM, GUWAHATI

Present : Sri A. Bhattacharyya, AJS, Special Judge, Assam, Guwahati.

SPECIAL CASE NO. 2/2006(Arising out of ACB PS Case No. 2/2000

u/s120(B)/420/409/468/471 IPC r/w 13(1)(e)/13(2) of Prevention of Corruption Act, 1988)

STATE OF ASSAMVS.

Sri Jibon Kishore Mazumder Sri Raj Hussain Khan

................. Accused Persons

Date of hearing : 19.06.2008, 23.07.2008, 05.12.2008, 06.01.2009, 25.02.2009, 26.11.2009, 19.12.2009, 11.02.2010, 12.03.2010, 06.05.2010, 31.05.2010, 03.01.2012, 22.06.2010, 16.11.2011, 06.06.2012, 29.06.2012, 13.06.2014, 10.11.2014,11.12.2014, 11.02.2015, 09.03.2015,04.04.2015, 05.05.2015

Date of statement of accused : 27.07.2015, 06.08.2014, 28.08.2014

Date of argument : 13.08.2015 & 28.08.2015

Date of Judgment : 31.08.2015

Result : Acquittal

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Advocate for prosecution : Smti. Nabasmita Gogoi Ld. Addl. Special P.P. for the State

Advocate for accused : Sri S. K. Lahkar Sri P. Kalita, Sri H. Kalita, Sri P. Mahanta

J U D G M E N T

1. One Sri Kamaleswar Dutta, Dy. S.P., Vigilance & Anti Corruption, Assam vide an ejhar dtd. 29.03.2000 states before the O/C, ACB PS, Assam, Guwahati as follows : That in course of enquiry of Vigilance & Anti Corruption RE No. 5(1)98 it is transpired that Sri Jibon Kishore Mazumder, It. Director, IWT, Sri Pranab Kr. Dey, Director, IWT and Sri Raj Hussain Khan, AE, IWT, Assam, Guwahati entered into a criminal conspiracy in-collusion with the suppliers and builders for their pecuniary benefit by abusing their official positions and functions and thereby cheated the government and misappropriated government money amounting to Rs. 25,00,036/- during the period from 1990 to 1998 by showing false supply of mooring materials and other accessories to different boats and vessels of the IWT department and furnishing false certificate about the progress of construction of FRP boats. It was also further transpired during enquiry a disproportionate assets and properties amounting to Rs. 2,74,009/- found acquired by Jibon Kishore Mazumder for which he could not give satisfactorily accounts. Under the aforesaid circumstances it

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was prayed by the informant a case u/s 409/420/468/471 120(B) IPC r/w Sec. 13(2) of Prevention of Corruption Act is required to be registered against accused Jibon Kishore Mazumder, Raj Hussain Khan and Pranab Kr. Dey of Inland Water Transport (IWT) department, Assam.

2. The Vigilance & Anti Corruption police station on the basis of the said ejahar registered a case and took up the investigation and at the conclusion laid the chargesheet against the above named accused persons.

3. On the appearance of the accused persons and the perusal of the documents as referred to u/s 173 CrPC the charges u/s 420/409/468/471/120(B) IPC are framed against the accused Pranab Kr. Dey. Further charges u/s 420/409/468/120(B)/471 IPC r/w Sec. 13(2) were framed against accused Raj Hussain Khan. Also the charges u/s 420/409/468/120(B) IPC r/w Sec. 13(2) and 13(1)(e) of the P.C. Act were framed against accused Jibon Kishore Mazumder. The charges so framed were readover and explained to the accused persons to which the accused persons pleaded not guilty.

4. During trial accused Pranab Kr. Dey expired and the case was proceeded against the remaining two accused namely Jibon Kishore Mazumder and Raj Hussain Khan.

5. During trial the prosecution side examined as many as 15 PWs. Three persons were also examined as the CW-1, CW-2 and CW-3, and the defence examined as many as 8

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Nos of DWs. Statements of the accuseds were recorded u/s 313 CrPC. At the conclusion of the evidences I heard the arguments from both the parties.

6. NOW THE POINTS FOR DETERMINATION IN THIS

CASE WILL BE :

As to whether the materials surfaced in the testimonies of the PWs, DWs and CWs are sufficient enough to attract the ingredients of the offences charged of against the accused persons and they are liable to be convicted or not ?

7. DECISION AND REASON THEREON :-

To address the aforesaid points for determination let us have a look at the entire evidences on record.

8. PW- 1 Sri Debeswar Baruah during trial and in his examination in chief states as follows : He retired from the Directorate of IWT on 01.03.1999 on superannuation in the capacity of Accountant. In the capacity of Accountant of the aforesaid department, his duty was to deals with the accounts matter. He know the accused persons. Accused persons were working in the IWT department in the capacity of Director, Joint Director and Asstt. Engineer respectively. He does not know any thing about the alleged offences. He can not recall as to whether his statement was recorded by the I/O or not.

9. PW- 2 Sri Hari Charan Kalita states during trial and in his examination in chief as follows : He was retired in the

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year 2004 from the post of Cashier in the department of IWT. He was working as the Cashier in the Directorate of IWT. In their department there were boats under the name and style of Narakishore, Ranga Nadi and Panisai etc. His duty in the capacity of Cashier in the department was to draw and disburse money on behalf of the Drawing and Disbursing Officer. During his duty, he had to make payment of the bills in respect of the construction of the aforesaid boats. He does not know anything about the alleged offences. However, in the year 2006 the I/O of visited his house and asked him about the payment of bills etc. in the department during his tenure of service in the department.

10. PW-3 Sri Hirishikesh Goswami stated during trial and in his examination in chief as follows : He joined in the service in the year 1974 in the capacity of Sectional Asstt. in the Guwahati Division of Inland Water Transport. During the investigation of the case the investigating officer visited their office and seized some documents in his presence. Ext. 1 is the said seizure list wherein Ext. 1(1) is his signature. Ext. 2 is the relevant file whereby the I/O seized as many as 36 items. Ext. 2(1) relates to item No. 1 of Ext.1, Ext. 2(2) relates to item No. 2 of Ext.1, Ext. 2(3) relates to item No. 3 of Ext.1, Ext. 2(4) relates to item No. 4 of Ext.1, Ext. 2(5) relates to item No. 5 of Ext.1, Ext. 2(6) relates to item No. 6 of Ext.1, Ext. 2(7) relates to item No.7 of Ext.1, Ext. 2(8) relates to item No. 8 of Ext.1, Ext. 2(9) relates to item No.9 of Ext.1, Ext. 2(10) relates to item No. 10 of Ext.1, Ext. 2(11)

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relates to item No. 11 of Ext.1, Ext. 2(12) relates to item No. 12 of Ext.1, Ext. 2(13) relates to item No. 13 of Ext.1, Ext. 2(14) relates to item No. 14 of Ext.1, Ext. 2(15) relates to item No. 15 of Ext.1, Ext. 2(16) relates to item No. 16 of Ext.1, Ext. 2(17) relates to item No. 17 of Ext.1, Ext. 2(18) relates to item No. 18 of Ext.1, Ext. 2(19) relates to item No. 19 of Ext.1, Ext. 2(20) relates to item No. 20 of Ext.1, it consists of 3 sheets, Ext. 2(21) relates to item No. 21 of Ext.1, it consists of 3 sheets, Ext. 2(22) relates to item No. 24 of Ext.1, it consists of 4 sheets, Ext. 2(23) relates to item No. 26 of Ext.1, it consists of 4 sheets, Ext. 2(24) relates to item No. 27 of Ext.1, it consists of 3 sheets, Ext. 2(25) relates to item No. 28 of Ext.1, it consists of 4 sheets, Ext. 2(26) relates to item No. 29 of Ext.1, it consists of 4 sheets, Ext. 2(27) relates to item No. 30 of Ext.1, it consists of 21 sheets, Ext. 2(28) relates to item No. 31 of Ext.1, it consists of 24 sheets, Ext. 2(29) relates to item No. 32 of Ext.1, it consists of 18 sheets, Ext. 2(30) relates to item No. 33 of Ext.1, it consists of 15 sheets, Ext. 2(31) relates to item No. 34 of Ext.1, it consists of 36 sheets, Ext. 2(32) relates to item No. 35 of Ext.1, it consists of 35 sheets, Ext. 2(33) relates to item No. 36 of Ext.1, it consists of 38 sheets. The I/O during investigation further seized 6 Nos. of register on being produced by him. Ext. 3 is the seizure list wherein Ext. 3(1) is his signature. Ext. 4 to Ext. 9 are the payment register as enumerated in Ext. 3. The payment registers are used whenever some payments are made to the private

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persons/contractors. The materials received are also enumerated in the payment register against whom payments are made He did not know about the alleged offences nor he knows about the involvement of the accused persons in the commission of the alleged offences.

11. During crossexamination the PW-3 states that he was neither the custodian nor dealt with the aforesaid documents and registers. Also he did not know about the contents of the exhibited documents. He has only produced the aforesaid documents and register before the I/O on being directed by the then Director, IWT, Assam.

12. PW-4 Sri Mrs. Munu Dutta Deka during trial and in her examination in chief states as follows : In the year 1986 she joined in the IWT department in capacity of Junior Engineer. She knows accused persons of the case. While she was working in the capacity of JE in the aforesaid department on being directed by their Director she produced some official documents in connection with the instant case before the I/O of the case. The I/O seized those documents but did not obtain her signature therein. At the relevant point of time she dealt with the file pertaining to the construction of the vessel and so also liaison to the Govt. as regards the sending of proposals of plan She can not remember the alleged offence against the accused persons due to the laps of time.

13. PW-5 Sri Matindra Biswa Sarma during trial and in his examination in chief states as follows : In the year 1985 he

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joined in the IWT department in the capacity of JE. On 30.05.2000 while he was working in the capacity of JE in the said Deptt. he produced 5 Nos of documents before the I/O of the instant case, who seized the same vide Ext. 10 and obtained his signature therein under Ext. 10(1). Ext. 11 is the item No. 1 of Ext. 10, Ext. 12 is the item No. 2 of Ext. 10, Ext. 13 is the item No. 3 of Ext. 10, Ext. 14 is the item No. 4 of Ext. 10, Ext. 15 is the item No. 5 of Ext. 10. The aforesaid exhibits i.e. the files were handled by the SDO of the Technical Branch of the IWT department. He did not have knowledge as regards the contents of the aforesaid exhibits.

14. PW-6 Sri Kamaleswar Dutta stated during trial in examination in chief as follows : In the year 1966 he joined in the Assam Police in the capacity of SI. On 29.03.2000 while he was working as the DSP in the V&AC, Assam he laid the FIR under Ext. 16 wherein Ext. 16(1) is his signature. On the aforesaid FIR the then SP, Mr. R. K. Bania of V&AC, Assam registered a case. Ext. 16(2) is the signature of Mr. R. K. Bania with endorsement which he knows from long association. Ext. 17 is the proforma of FIR wherein Ext. 17(1) is his signature and Ext. 17(2) is the signature of Mr. R.K. Bania. Prior to the submission of the aforesaid FIR, he conducted regular enquiry being No. 5(1)98 against Sri Jibon Kishore Mazumder, Raj Hussain Khan and Pranab Kr. Dey. During the said regular enquiry he finds materials that the aforesaid accused persons hatched up a criminal conspiracy

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and misappropriated an amount of Rs. 25,00,036/- during the period 1990 to 1998 false supply of materials and other accessories to different boats and vessels of IWT department. Further he find materials that the aforesaid person namely Jibon Kishore Mazumder acquired disproportionate assets and properties to the tune of Rs. 2,74,009/- to his known source of income and i.e. why he laid the said FIR. On the basis of regular enquiry he laid the FIR. Before initiation of regular enquiry they received complaints and on the basis of the said complaints the regular enquiry was conducted. The papers relating to the aforesaid complaint and regular enquiry are not available in the case record in as much as he submitted it before the concerned branch and normally the same does not come to the court also

15. During cross examination being the informant of this case admitted as follows : that he can not recollect as to who laid the complaint against the aforesaid persons. He laid simply the FIR nor he investigated into the case and also seized no documents / articles. To misappropriate the government fund somebody must be entrusted with the said fund and without verification of the papers relating to the said regular enquiry he is not in a position to specify the amount of disproportionate assets and misappropriated amount. He deposed the aforesaid two amounts on perusal of FIR only. During RE he did not find the materials against the accused in regard the charges except the materials as

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he stated herein before. During RE he did not record statement of suspected officers including J. K. Mazumder.

16. PW-7 Md. Jamiruddin Laskar during trial and in his examination-in-chief states as follows : In the year 1965 he joined in the Assam Police in the capacity of SI. On 25.08.01 while he was working as the Inspector of Police, V&AC, Assam, he was entrusted with the investigation of the case and then he seized as many as 39 Nos of documents on being produced by R. H. Khan of IWT department vide Ext. 18 wherein Ext. 18(1) is his signature. As per seizure list Ext. 18, 39 documents were seized by him on 25.08.01. These documents are – (1) Cheque book in the name of Raj Hussain Khan vidoe A/C No. 9230/71 in the bank of the Assam Cooperative Apex Bank Ltd., Dispur Branch, Sl No. 987164 to 987180 unused (M Ext. 73), (2) One SBI A/C No. P/7/1027, Ledger Folio No. 2589 in the name of Raj Hussain Khan of Baguribari Branch, last balance Rs. 400/- as on 23.6.96 (M Ext. 74), (3) One pass book in the name of Raj Hussain Khan of Ali Ahmed Nagar, Khanapara vide A/C No.962 of Pragjyotish Gaalia Bank, Punjabari Branch., Last balance Rs.514/- as on 16.3.98. M Ext. 74) (A). (4) One duplicate pass book in the name of Raj Hussain Khan of Ali Ahmed Nagar Panjabari Ghy-22 vide A/C No 9230/71 of Assam Co-operative Apex Bank Ltd of Dispur Branch last balance of Rs.70,810.00/- on 28.5.2000. (M Ext. 75). (5) One Pass book of Assam Co-operative Apex Bank Ltd. of Dispur branch in the name of Nazneen Ara Rahman vide A/C

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No.7623/105/58 last balance of Rs 1039/- as on 3-1-2000. (M Ext. 76). (6) One F.D. B. No-0113532 of the Assam Co-operative Apex bank ltd. of Dispur Branch vide Account No.2622 dated 12.2.2001 in the name of Mrs. Nazneen Ara Rahman for Rs.60,000/- only. (7) One Re-investment plan deposit vide A-116105 vide Account No.2704 dated 12.4.2001 of the Assam Co-operative Apex Bank Ltd. Dispur Branch for Rs.60,000/- in the name of Mrs Nazneen Ara Rahman. (8) One re-investment plan deposit vide A/RP No. 0091309 vide A/C No.1903 dated 21.4.99 of the Assam Co-operative Apex Bank Ltd, Dispur Branch for Rs. 20,000/- in the name of Mrs. Nazneen Ara Rahman, (9) One re-investment plan deposit vide A/RP No. 0086146 vide A/C No.1840 dated 04.03.99 of the Assam Co-operative Apex Bank Ltd, Dispur Branch for Rs. 15,000/- in the name of Mrs. Nazneen Ara Rahman, (10) One re-investment plan deposit vide A/RP No. 0106368 vide A/C No.2267 dated 18.2.2000 of the Assam Co-operative Apex Bank Ltd, Dispur Branch for Rs. 20,000/- in the name of Mrs. Nazneen Ara Rahman, (11) One re-investment plan deposit vide A/RP No. 00991407 vide A/C No.2002 of the Assam Co-operative Apex Bank Ltd, Dispur Branch for Rs. 10,000/- in the name of Mrs. Nazneen Ara Rahman, (12) One re-investment plan deposit vide A/RP No. 0091335 vide A/C No.1928 dated 10.5.99 of the Assam Co-operative Apex Bank Ltd, Dispur Branch for Rs. 10,000/- in the name of Mrs. Nazneen Ara Rahman, (13) NSC 6 NS = 33EE239714 for Rs. 10,000/- dt. 18.1.01 in the name of Mrs.

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Nazneen Ara Rahman, (14) NSC 6 NS = 33EE 439780 for Rs. 10,000/- dt. 13.8.01 in the name of Mrs. Nazneen Ara Rahman, (15) NSC 6 NS = 19DD 560788 for Rs. 5,000/- dt. 12.2.99 in the name of Mrs. Nazneen Ara Rahman, (16) NSC 6 NS = 26DD 955323 for Rs. 5,000/- dt. 21.11.2000 in the name of Mrs. Nazneen Ara Rahman, (17) NSC 6 NS = 33EE239714 for Rs. 10,000/- dt. 18.1.01 in the name of Mrs. Nazneen Ara Rahman, (17) One S.B. Pass book vide A/C No.7623/58 of the Assam Co-operative Apex bank Ltd, Dispur in the name of Mrs Naznen Ara Rahman last balance Rs. 1020.75 (18) One gold bala weighing about 8 anas. (19) One gold locket weighing about 8 anas. (20) One necklace brass metal weighing about 1 ½ tola. (21) Five Nos of Kharu gold plated weighing about 12 anas . (22) One certificate of registration of maruti car No. AS-01/E-7897 in the name of Beni Madhab Baruah S/O late-A.B. Baruah, Dhubri. Later on 14-7-2000 transferred in the name of Mrs Nazneen Ara Rahman W/O Raj Hussain Khan M Ext. 77). (23) One passbook vide A/C No. 3044 in the name of Nazneen Ara Rahman for 12 months @ Rs. 600/- per month, maturity value Rs. 7553/-, balance Rs. 4200/-. (24) One cheque book of Pragjyotish Gaolia Bank of Punjabari Branch vide No. 813881 to 813890, No. 813887 to 813890 unused. (25) One Camera purchased in the year 1999 worth Rs. 4900/-. (26) One set of imitation ornaments worth Rs. 400/-. (27) One pair of zumka gold weighing 8 anas stone fitted . (28) One pair of Bala gold weighing 6 anas. (29) One gold necklace

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weighing 1 ½ tola. (30) One gold necklace weighing about 1 ½ tola. (31) One gold necklace weighing about 1 ½ tola stone fitted. (32) One gold necklace with gold locket weighing about 2 tola. (33) One pair gold earring weighing about 8 anas. (34) Four pairs of Kharu gold plated weighing about 8 anas. (35) One LIC Policy vide No. 481791262 in the name of Rajhussain Khan commencing from 20.03.99 for Rs. 50,000/- (M Exdt. 78). (36) One LIC Policy vide No. 481331143 in the name of Raj Hussain Khan commencing from 25.1.95 for Rs. 1,00,000/- (M Ext. 79). (37) One LIC Policy vide No. 481794122 in the name of Nazneen Ara Rahman for Rs. 50,000/- (M Ext. 80). (38) One LIC Policy vide No. 482179969 in the name of Nazneen Ara Rahman for Rs. 1,00,000/- w.e.f. 28.11.2000 (M Ext. 81) and (39) One LIC Policy vide No. 481332035 in the name of Nazneen Ara Rahman for Rs. 75,000/- commencing from 23.3.95 (M Ext. 82). On the same day all the seized 13 gold ornaments and one camera were given in the custody of Nazneen Ara Rahman. Ext. 21 is the said zimmanama and Ext. 21(1) is my signature. Ext. 21(2) is the signature of Nazneen Ara Rahman. During investigation of the case as per order of this court dtd. 12.10.2001 I/O Mr. M N Sarma handed over 7 Nos. of fixed deposit certificates, 2 Nos. of passbooks and 4 Nos. of NSCs in the custody of Nazneen Ara Rahman vide zimmanama Ext. 22 and Ext. 22(1) is the signature of I/O M N Sarma.

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17. During cross-examination the PW-7 states that he was the I/O in this case and on the strength of the search order issued from this court he made the search in the house and premises of the R. H. Khan and seized as many as 39 Nos of items vide seizure list Ext. 18. The documents were seized from the house and premises of accused R. H. Khan. In the seizure list he has not specifically mentioned as to who had produced these articles to him. Some of the documents which he had seized are in the name of Naznin Ara Rahman wife of accused R. H. Khan. He was not aware whether the wife of the accused R.H. Khan filed any petition before the Court seeking zimma of the articles. He was not aware whether any notice was given to them for filing objection if any regarding zimma of the said articles to the wife of accused R.H. Khan. On 31.03.2003 he was retired from service. Gold ornaments were given to Naznin Ara Rahman because it belongs to her. The calculation of the assets of the accused was not made by him. In DA case both movable and documents of immovable are to be evaluated which were possessed by the accused person. Receipt of the premium of LIC policy was not seized by him. He can not say whether these policies were in force or not. The ACB PS was situated in the ground floor of the building belonging to father -in-law of the accused R. H. Khan. At that time Naznin Ara Rahman was serving as Lecture of Dispur College.

18. PW-8 Sri Hatem Ali during trial and in his examination in chief states as follows : In the year 1976 he joined the

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Enforcement Directorate (FERA) in the capacity of Junior Stenographer. In the year 2000 the V&AC seized 327 US dollar and handed over to their department for necessary action under Foreign Exchange Regulation Act, 1973. The matter was adjudicated in the year 2001 during which the person from whom the US dollar was seized was penalized. The person concerned from whom the US dollar was seized is one Jibon Kishore Mazumder and the aforesaid foreign exchange was returned to him after realizing the penalty amount of Rs. 3000/-.

19. The said witness during cross examination conducted by accused J.K. Mazumder states as follows : Mr. J.K. Mazumder was sent abroad for official training. During that period he was given US dollars officially and the aforesaid amount was un-spent amount. MR. Mazumder acquired the aforesaid amount legally but he ought to have encashed the unspent amount within one month of his return to Assam, but as Mr. Mazumder failed to encash the amount within the stipulated period, therefore proceeding was initiated and the aforesaid penalty was imposed upon him. Thereafter Mr. Mazumder enchased the amount officially and certificate to that effect was furnished to Mr. Mazumder from the concerned department. The encash amount is Rs. 15,369/-

20. PW-9 Sri Likhan Kajknowar during trial and in his examination in chief states as follows : On 01.08.2000 while he was working as the Asstt. Manager in the Dispur Branch of SBI, the I/O of this case seized some jewelery from the

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locker of the Locker No. 81(b) of Dispur Branch of SBI. The then Locker in-charge Mr. P.K. Sarma, Dy. Manager of SBI opened the locker. The jewelery were removed from the locker in presence of himself, Mr. P.K. Sarma, Jibon Kishore Mazumder and Mera Mazumder. The jeweleries were seized vide the seizure list Ext. 19 wherein Ext. 19(1) and Ext. 19(2) are his signatures. Today he did not find the jeweleries.

21. During cross examination conducted by accused J. K. Mazumder he states as follows : The Holder of the locker can keep his article and others articles also. During the process the locker in-charge of the bank opened the locker by first key. Thereafter he will leave the place and holder of the locker can keep or remove articles if any and the same is not normally known to the bank official. Further the bank authority does not record what articles are kept or removed in or from the locker. 5 plastic containers wherein ornaments were kept and mentioned in the seizure list were found in the locker. 2 containers thereof bore the name of one Archana, who according to the locker holder was the sister-in-law of J.K. Mazumder. The value of the articles are not mentioned in the seizure list Ext. 19. He did not have any knowledge about the alleged allegation of the case.

22. PW-10 Dr. Gunamoni Mahanta during trial and in his examination in chief states as follows : Since August 2000 he was doing private practice. He was gynecologist by profession. On 29.7.2000 while he was residing in the house of Mr. J. K. Mazumder as the tenant then the I/O of this case

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seized ornaments, hard cash vide Ext. 20 from the house of MR. Mazumder. The seizure list consists of 10 pages and he put his signatures in every pages from Ext. 20(1) to Ext. 20(10). The seized articles were not shown to him nor did he has personal knowledge as to the offence alleged of.

23. The said PW during cross examination conducted by accused J.K. Mazumder states as follows : He arrived at the scene at the conclusion of the search and seizure. The I/O did not ask him at the time of the preperation of the Ext. 28. He does not know about the ornaments, hard cash and the other items mentioned in the seizure list.

24. PW-11 Sri Takhin Roy during trial and in his examination in chief states as follows : On 29.07.2000 while he was working in the house of Mr. J. K. Mazumder as the domestic help police seized ornaments and other items vide Ext. 20 and obtained his signatures therein from Ext. 20(11) to Ext. 20(20). Police did not show him the seized articles nor did he has personal knowledge as to why the same were seized.

25. During cross examination conducted by accused J.K. Mazumder he states that police did not record his statement nor did ask anything to him at the time of search and seizure and on being directed by the police he put his signatures in the seizure list.

26. PW-12 Sri Pradip Kr. Sarma during trial and in his examination in chief states as follows : On 01.08.2000 while

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he was working in the Dispur Branch of SBI in the capacity of Dy. Manager, Personal Banking Division police seized as many as 16 items vide seizure list Ext. 19 and obtained his signatures therein under Ext. 19(3) and Ext. 19(4). The aforesaid exhibit consist of 2 pages. The seized items were carried by the locker holder. The Ext. 19 is the seizure list by which Mr. N. N. Sarma, Inspector of Police, V&AC seized as many as 16 items. Ext. 19(3) is my signature in the seizure list. The seized items is as follows – (1) 3 Nos of Gold chain weight approximately 8 Anas per chain, (2) One gold necklace stone fitted weight approximately 1 tola 8 anas, (3) One small gold ring weight approximately 3 anas, (4) One pair ear-ring stone fitted weight approximately 4 anas, (5) One pair ear-ring stone fitted weight approximately 4 anas, (6) One gold necklace stone fitted weight approximately 2 tolas, (7) One gold ring stone fitted weight approximately4 anas, (8) One pair gold ear-ring weight approximately4 anas, (9) One pair Bauthi (gold quoted), (10) One gold ring stone fitted weight approximately 5 anas, (11) One gold necklace weight approximately 1 ½ tolas, (12) One pair gold ear-ring weight approximately 6 anas, (13) One gold ring stone fitted weight approximately 5 anas, (14) One gold ring stone fitted weight approximately 4 anas, (15) One gold ring stone fitted weight approximately 4 anas, (16) 5 Nos of plastic containers wherein the above ornaments were kept. M. Exts. 1, 1(1) and 1(2) are the 3 Nos of gold chain as per item No. 1 of seizure list Ext. 19. M Ext. 2 is one gold

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necklace stone fitted as per item 2 of seizure list Ext. 19, M Ext. 3 is one small gold ring as per item 3 of seizure list Ext. 19, M Ext. 4 is one pair gold ear-ring as per item 4 of seizure list Ext. 19, M Ext. 5 is one pair gold ear-ring as per item 5 of seizure list Ext. 19, M Ext. 6 is one gold necklace stone fitted japi desigh as per item 6 of seizure list Ext. 19, M Ext. 7 is one gold ring stone fitted as per item no. 7 of seizure list Ext. 19, M Ext. 8 is one pair gold ear-ring as per item 8 of seizure list Ext. 19, M Ext. 9 is one pair gold bauthi as per item 9 of seizure list Ext. 19, M Ext. 10 is one gold ring as per item 10 of seizure list Ext. 19. The seizure list was made in presence of Mr. Likjhan Rajkonwar the then Asstt. Manager of SBI, Dispur. Ext. 19(1) is his signature. The Ext. 19 bears the signature of the accused J.K. Mazumder. The seized articles were kept in locker No. 81(B) of SBI, Dispur in the name of J. K. Mazumder. The locker was opened on 01.08.2000.

27. PW-13 Sri Munindra Nath Sarma during trial and in his examination in chief states as follows : He joined in his service as Asstt. Sub-Inspector in the year 1971. On 29.3.2000 he was working as Inspector of Police, V&AC, Assam, Guwahati and on that day he was entrusted to investigate the ACB PS Case No. 2/2000. During the course of investigation he has recorded the statement of witnesses and conducted the search in the house and premises of Jibon Kishore Mazumder and Raj Hussain Khan. During investigation he has searched locker of SBI, Dispur Branch

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stood in the name of J. K. Mazumder and found as many as five items of articles namely (1) 3 Nos of gold chain, (2) 1 gold neckless, (3) 1 gold ring, (4) 1 pair ear-ring and (5) 1 pair of ear-ring seized vide Ext. 19 wherein Ext. 19(5) is his signature. The seizure was made in presence of three witnesses, Dy. Manager, SBI, Asstt. Manager, SBI, Dispur Branch and another. Ext. 19 is the seizure list and Ext. 19(5) is his signature. M. Exts. 1, 1(1) and 1(2) are the 3 Nos of gold chain as per item No. 1 of seizure list Ext. 19. M Ext. 2 is one gold necklace stone fitted as per item 2 of seizure list Ext. 19, M Ext. 3 is one small gold ring as per item 3 of seizure list Ext. 19, M Ext. 4 is one pair gold ear-ring as per item 4 of seizure list Ext. 19, M Ext. 5 is one pair gold ear-ring as per item 5 of seizure list Ext. 19, M Ext. 6 is one gold necklace stone fitted japi desigh as per item 6 of seizure list Ext. 19, M Ext. 7 is one gold ring stone fitted as per item no. 7 of seizure list Ext. 19, M Ext. 8 is one pair gold ear-ring as per item 8 of seizure list Ext. 19, M Ext. 9 is one pair gold bauthi as per item 9 of seizure list Ext. 19, M Ext. 10 is one gold ring as per item 10 of seizure list Ext. 19. The seizure was made in presence of witnesses namely Ahmed Malik and Kishore Das. The seized articles were kept in locker No. 81(B) of SBI, Dispur Branch. Ext. 19(6) is the signature of accused J. K. Mazumder and Ext. 19(7) is the signature of Smti. Mira Mazumder.

28. He further states during trial and in his examination in chief as follows : On 29.7.2000 he seized number of

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documents alongwith gold ornaments from the residence of accused J. K. Mazumder They are (1) Official personal file (M Ext. 14), (2) Personal file tour diary (M Ext. 15), (3) Lose papers covered by plastic (M Ext. 16), (4) one personal file containing some important records (M Ext. 17), (5) personal file of J. K. Mazumder (M Ext. 18), (6) Booklet (M Ext. 19), (7) Cash receipt (M Ext. 10), (8) ICIC safety bonds (M Ext. 21), (9) Money receipts for Rs. 410/- (M Ext. 22), Rs. 210/- (M Ext. 22(1) and Rs. 100(M Ext. 22(2), (10) Seven numbers of money receipts for Rs. 100/-, Rs. 200/- Rs. 400/-, Rs. 1500/-, Rs. 500/- Rs. 510/- and Rs. 210/- (M Exts, 23, 23(1) to 23(6) are those receipts respectively), (11) Two copies of ITC Classic Finance Ltd. in the name of Archana Das (M Exts. 24 & 24(1) are those documents), (12) Titan Indian Ltd. cheque counterfoil (M Exts. 25), (13) Correspondence letter of ITC (M Ext. 26), (14) Peerless Certificate in the name of Deveswar Mazumder (M Ext. 27), (15) Seventeen number of NSCs in the name of J. K. Mazumder for Rs. 10,000/-, Rs. 10,000/-, Rs. 5000/-, Rs. 10,000/-, Rs. 10,000/-, Rs. 10,000/-, Rs. 10,000/-, Rs. 10,000/-, Rs. 10,000/-, Rs. 1,000/-, Rs. 5,000/- Rs. 10,000/-, Rs. 10,000/- Rs. 5,000/- and Rs. 10,000/- respectively (which were given in the custody of accused), (16) Ten number of NSCs in the name of Smti Mira Mazumder for Rs. 5,000/-, Rs. 10,000/-, Rs. 5,000/-, Rs. 5,000/- Rs. 10,000/-, Rs. 1,000/-, Rs. 1000/-, and Rs. 5,000/- respectively (which were given in the custody of accused), (17) Fourteen numbers of passbook (four in the name of

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Mira Mazumder and eight in the name of J.K. Mazumder and three in the name of other persons) (M Ext. 28 are the passbooks), (18) Seven special term deposit in the name of Chandra Kr. Mazumder for Rs. 50,054/-, special term deposit in the name of J.K. Mazumder for Rs. 16,540/-, Rs. 9,365/-, Rs. 21,545/-, Rs. 15,000/-, Rs. 5,100/- and Rs. 5,000/- (which were given in the custody of accused), (19) One SBI mutual fund certificate in the name of J.K. Mazumder for Rs. 5,000/- , UBI reinvestment certificate in the name of Chandra Kr. Mazumder for Rs, 32,216/- and Rs. 48,900/- (given in the custody of accused), (2) UBI reinvestment certificate for Rs. 21,781/- in the name of Chandra Kr. Mazumder (given in the custody of accused), (21) SBI mutual fund certificate in the name of J.K. Mazumder (given in the custody of accused), (22) Cooperative City Bank letter (M Ext. 29), (23) Magnum certificate in the name of J.K. Mazumder for Rs. 5,000/- (given in the custody of accused), (24) Deep discount bond in the name of J.K. Mazumder for Rs. 2500/- (given in the custody of accused), (25) SBI dispur Bank locker key No. 46 (M Ext. 30), (26) UTI chilldren growth in the name of Chitrini Mazumder (given in the custody of accused, (27) UTI children growth certificate in the name of J.K. Mazumder, (28) UTI certificate in the name of J. K. Mazumder for Rs. 10,000/-, (29) UTI certificate in the name of Chandan Kr. Mazumder for 230 unit (M Ext. 31), (30) UTI certificate in the name of Chitrini Mazumder for 160 unit (M Ext. 32), (31) UTI certificate in the name of

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Mira Mazumder for Rs. 5000/- (M Ext. 33), (32) UTI certificate in the name of J.K. Mazumder for 750 unit (M Ext. 34), (33) UTI certificate in the name of J.K. Mazumder for 500 unit (M Ext. 35), (34) UTI certificate in the name of J.K. Mazumder for 300 unit (M Ext. 36), (35) UTI certificate in the name of Mira Mazumder for 200 unit (M Ext. 37), (36) UTI certificate in the name of Chandan Kr. Mazumder for 230 unit (M Ext. 38), (37) UTI certificate in the name of Chitrini Mazumder for 160 unit (M Ext. 39), (38) UTI certificate in the name of Chitrini Mazumder for 160 unit (M Ext. 40), (39) UTI certificate in the name of Chandan KR. Mazumder for 230 unit (M Ext. 41), (40) UTI certificate in the name of Chitrini Mazumder for 160 unit (M Ext. 42), (41) UTI certificate in the name of Chandan Kr. Mazumder for 230 unit (M Ext. 43), (42) UTI certificate in the name of J. K. Mazumder for 75 unit (M Ext. 44), (43) UTI certificate in the name of Mira Mazumder for 50 unit (M Ext. 45), (44) UTI certificate in the name of J.K. Mazumder for 30 uinit (M Ext. 46), (45) UTI certificate in the name of J.K. Mazumder for 60 unit (M Ext. 47), (46) UTI certificate in the name of Chandan Kr. Mazumder for 30 unit (M Ext. 48) (47) UTI certificate in the name of Chitrini Mazumder for 160 unit (M Ext. 50), (58) UTI certificate in the name of Mira Mazumder for 100 unit (M Ext. 50), (49) UTI certificate in the name of Mira Mazumder for 40 unit (M Ext. 51), (50) UTI certificate in the name of J. K. Mazumder fo 150 unit (M Ext. 52), (51) UTI certificate in the name of Chitrini Mazumder for 160 unit (M Ext. 53), (52)

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Titan Industries share certificate in the name of Prafulla Kr. Mahanta and Debendra Nath Mahanta (M Ext. 54), (53) Vengaurd India Finance Ltd. share certificate in the name of Mira Mazumder for Rs. 2000/- (M ext. 55), (54) Vacation tour slip agreement (M Ext. 56), (55) Nineteen Air tickets in the name of J.K. Mazumder (M Ext. 57), (56) Cash Rs. 3,853/- (given in the custody of accused), (57) Xerox copy of 327 American Dollar (original dollar sent to the Central Enforcement Department) M Ext. 58), (58) Registration certificate of Fiat Car No. AS 01 H 0572 in the name of J.K. Mazumder (M Ext. 59), (59) Vehicle insurance certificate (M Ext. 60), (60) Registration certificate of Scooter No. ASU 8830 (M Ext. 61), (61) Vehicle insurance certificate (M Ext. 62), (62) Eight numbers of LIC policy certificate (7 in the name of J. K. Mazumder and 1 in the name of Mira Mazumder given in the custody of accused), (63) Title deed no. 1743 in the name of J. K. Mazumder (M Ext. 64), (65) Sale deed no 1451 in the name of Mira Mazumder (M Ext. 65), (6) Sale deed no. 482 in the name of J.K. Mazumder (M Ext. 6), (67) Cash memo for Rs. 7500/-, donation receipts for Rs. 999/- and Rs. 530/- and cash memos for Rs. 1119/-, Rs. 5557/-, Rs. 59,500/-, Rs. 405/-, Rs. 9300/-, Rs. 1245/-, Rs. 18,800/-, Rs. 2000/-, Rs, 12,000/-, electricity bill for Rs. 2033.15, repairing charged of vehicle No. AMA 2425 Rs. 15,513/-, Rs. 1770/- and Rs. 270/-, cash memos for Rs. 340/- Rs. 12,800/-, Rs. 490, Rs. 2250/-, electricity bill for Rs. 1387/-, telephone bills for Rs. 650, Rs. 100/-, Rs. 650/-, Rs.

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667/-, Rs. 697/-, Rs. 686/- and Rs. 606/- (M Exts. 67, 67(1) to 67(28) respectively are the said cash memos, electric bill, telephone bills, receipts, vouchers etc.) Ext. 20(21) is his signature. He also seized one gold necklace (M Ext. 68), one gold ring (stone fitted) (M Ext. 69), one pair ear-ring (M Ext. 70), one ring (stone fitted) (M Ext. 71) and one ring (stone fitted) (M Ext. 72).

29. During cross-examination conducted by accused J.K. Mazumder the PW-13 states that in some cash memos the names of the persons are not mentioned. He does not know the relationship between J. K. Mazumder and the other persons. He does not know the details of the purchased articles and how these articles were purchased and how payments were made. He did not investigate as to the ownership also. He did not investigate the electricity bill. He did not interrogate the officials regarding bank passbook and other documents which were exhibited in this case. He prepared an inventory and later he did not investigate the case. He did not investigate as to the mode of payment and seller and source.

30. PW-14 Md. ANM Samiul Alam states during trial and in his examination chief chief as follows : On 16.02.1999 he was serving as Executive Engineer, Magazine Division, Dispur. On that day he submitted the evaluation report of the building belonging to Jibon Kishore Mazumder situated at Pub Sarumataria, The report was submitted to the SP, V&AC. There are three buildings – (1) Assam type builder, one two

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stories RCC building and one RCC building having one story. The area of the two stories RCC building of the ground floor was 170.86 Sqm. and cost was Rs. 3,51,895/- constructed in the year 1989-90. The first floor of that building had area 71.69 Sqm. and cost was Rs. 2,18,677/- constructed in the year 1990-91, (2) Assam type building's cost was Rs. 6,120/- constructed in the year 1989 but area is not mentioned and (3) Single story RCC building's area is not mentioned which was constructed in the year 1998 and cost was Rs. 3,12,721/-. The measurement of these three buildings was taken by their Asstt. Executive Engineer as requested by SP, V&AC and those measurement documents might be available in the office of the Asstt. Executive Engineer, JBC Sub Division, Dispur. His report contained two pages. Ext. Y(5) is the forwarding letter of his evaluation report and Ext. Y(5)(1) is his signature. Ext. Y(5)(2) is the evaluation report in two pages and Ext. Y(5)(3) is his signature.

31. The witness (PW-14) during cross-examination conducted by the accused J.K. Mazumder states as follows : He did not visit the place personally. The evaluation of the building was quoted by his subordinate Asstt. Executive Engineer and Asstt. Engineer. The report is submitted and forwarded by him. On the basis of the scheduled rate of the relevant period of the PWD the report was prepared by his subordinate. The hand writings of the report were of his subordinate. At the foot of the report it is written that

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abstract of the cost of the buildings. The report was submitted in the standard cyclostyle form. As per xerox copy of the DMDA and DMCA enclosed with his report the buildings were in the name of Smti. Mira Mazumder.

32. PW-15 Sri Prafulla Ch. Sarma during trial and in his examination in chief states as follows : On 01.08.2005 he was Addl. Chief Secretary to the Govt. of Assam having charge of Transport Deptt also. The application filed by Superintendent of Police, Vigilance & Anti Corruption, Assam, Guwahati vide letter No. DGVA/RI/2005/141 dt. 05.02.2005 prayed for prosecution sanction against accused Pranab Kr. Dey (Retd.) Director of IWT, Jiban Kishore Mazumdar, Jt. Director, IWT and Raj Hussain Khan, Asstt. Engineer, IWT. The allegation against them was that Sri Pranab Kr. Dey (Retd.) Director of IWT, Jiban Kishore Mazumdar, Jt. Director, IWT and Raj Hussain Khan, Asstt. Engineer, IWT from 1990 to 1998 committed misappropriation of the Govt. fund amounting to Rs. 25,00,036/- sanctioned by the Govt. for construction of Vesel namely S.B. Kajali, S. B. Ranganadi, P.T. Narakasur and three Fibre Glass Renf Forced Plastic twin screw boat (FRP) in the fitting of mooring materials violating the terms and condition of agreement and terms and condition of NIT. J K Mazumdar has also acquired assets amounting to worth Rs. 6,08,004/- disproportionate to his known sources of income. The said facts constitute the offence punishable u/s 409/420/468/471/ 120(B) IPC R/W sec. 13(1)(c)(d)(ii)/13(2) PC Act. Before

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according sanction to prosecute those accused persons he had gone through all the relevant documents like FIR, I/Os report and other relevant documents and after applying his mind he accorded prosecution sanction order vide Ext. 23 . Ext. 23(1) is his signature. The content of the sanction order was dictated by him of his Stenographer and after going through it he put his signature. The said sanction order was forwarded to the Superintendent of Police V&AC by Sri P C Mahanta, Under Secretary to the Govt. of Assam, Political (Vigilance Cell) vide Ext. 24 and Ext. 24(1) is his signature which is known to him for long association.

33. During cross-examination the said witness stated as follows : In Ext. 23 the Vigilance Case No. is not mentioned. That he applied his mind is not mentioned, but he had gone through all the relevant documents which were placed before him. Now he can not remember apart from FIR and I/O's report what other documents he had actually gone through at that time because it is a more than seven years old case. On this matter Political Deptt. forwarded the application for prosecution sanction and as administrative head of the Transport Deptt. sanction was accorded by him. There are two files maintained in two department for this purpose. The type of documents what he had gone through at that time might be found in those files. Today those files are not available in the court.

So these are all about the evidences on record.

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34. Three persons namely Smti Nazneen Ara Rahman, Sri Dinesh Ch. Bhagabati and Sri Farzan Ali Laskar were examined as the CWs.

35. CW-1 Smti Nazneen Ara Rahman during trial and her examination in chief deposed as follows : She is the daughter of Sri Abdur Rahman, Retired L.R. and Secretary to the Govt of Assam. Presently she is working as Senior Lecturer, Deptt. of History, Dispur College. She was married with Sri Raj Hussain Khan S/O Rahman Khan of Bhagribari of Dhubri district in the year 1998. Perhaps during the year 2001/2002 there was a raid in the house and premises of her father by the Vigilance & Anti Corruption Deptt. and at that time herself and her husband both were residing in the house of her father since her husband did get salary from his department. After raid police of Anti corruption had seized certain ornaments and some other valuable items which includes passbook and reinvestment plan from her possession. The ornaments were given to her by her mother at the time of her marriage with accused Raj Hussain Khan. During the course of investigation police had seized as many as 39 nos of article and out of which as many as 14 nos. of article namely (1) one gold bala wt. about 8 anas, (2) one gold locket wt. about 8 anas, (3) one necklace brass metal wt. about 1 ½ tola, (4) five nos. of kharu gold plated wt. about 12 anas, (5) one camera, (6) one set of lamination ornaments worth Rs. 400/-, (7) one paid of jhumkha gold wt. about 8 anas, (9) one gold necklace wt. 1 ½ tola, (10) one

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gold necklace wt. 1bout 1 ½ tola, (11) one gold necklace stone fitted wt. 1 ½ tola, (12) oen gold neck lace with gold locket wt. 2 tolas, (13) one paid of gold ear-ring wt. 8 anas and (14) 4 pairs of Kharu gold plated wt. 8 anas were given in her zimma with a direction to produce the same as and when call for. Presently these gold ornaments are lying with her and these gold ornaments excessively belong to her which were given to her by her mother at the time of her marriage.

36. During cross examination conducted by the prosecution the CW-1 states as follows : One divorce case was pending in court against her husband but today she has not brought any documents relating to pendency of the said case. She does not remember the date of filling of her divorce case against her husband, but she can say the divorce case No. 117/08. Today she has produced her identity card before the court as Senior Lecturer. Deptt. of History, Dispur College, but she has not produced her salary certificate before the court today. This identity card does not bear the scale of pay.

37. Further the CW-1 states as follows during cross examination by accused Raj Hussain Khan : Her husband Raj Hussain Khan was working as Asstt. Engineer in the IWT Deptt. She has no knowledge in which date of calendar month her husband used to receive his salary. She do not know whether he used to receive salary for a months together as he was working under 3(F). Ext. X is the

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photocopy of pan card in her name against No. ADSPR 9699B. She has been submitted her income tax returns regularly against that No.

38. CW-2 Sri Dinesh Ch. Bhagabari during trial and in his examination in chief states as follows : On 08.08.05 he was working as DSP, V&AC, Assam and on that day he was entrusted by the then SP, V&AC, Assam to completed the investigation of ACB PS Case No. 2/2000 u/s 409/420/468/471/120(B) of IPC r/w Sec. 13(2) of PC Act, 1988. During the course of investigation on 23.11.05 he had seized as many as 6 documents from the office of the Director, V&AC on being produced by Inspector G. Mohanta in presence of witnesses vide seizure list Ext. Y and Ext. Y(1) is his signature in the seizure list. Ext. Y(2) is the signature of witness G. Mahanta and Ext. Y(3) is the signature of witness Maneswar Bora. The documents are namely (1) Final progress report, (2) Evaluation report, (3) DA statement of J. K. Mazumder, (4) Addl. DA statement of J. K. Mazumder, (5) Inventory of articles belonging to R.H. Khan and (6) Inventory of articles belonging to J.K. Mazumder. Ext. Y(4) is the final progress report which relates to item No. 1 of seizure list Ext. Y. Ext. Y(5) is the evaluation report which relates to item No. 2 of seizure list Ext. Y, Ext. Y(6) is the DA statement of accused J. K. Mazumder which relates to item No. 1 of seizure list Ext. Y, Ext. Y(7) is the inventory of articles belonging to accused J.K. Mazumder which relates to item No. 5 of seizure list Ext. Y. Ext. Y(9) is the inventory of

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articles belonging to accused R.H. Khan which relates to item No. 6 of seizure list Ext. Y, Ext. Y(9) is the addl. DA statement of accused J.K. Mazumder which relates to item No. 4. of seizure list Ext. Y. After completing the investigation finally he has submitted the chargesheet against accused Jibon Kishore Mazumder, Raj Hussain Khan and Pranab Kr. Dey. The case u/s 409/420/ 468/471/120(B) IPC is agianst accused Raj Hussain Khan and Pranab Kr. Dey and case u/s 409/420/468/120(B) IPC r/w Sec. 13(2) of the PC Act, 1988 against accused Jibon Kishore Mazumder vide Ext. Z and Ext. Z(1) is his signature. It consists of two sheets of paper in four pages. The chargesheet was forwarded by the then SP, V&AC, and Ext. Z(2) is his signature with his office seal. He had recorded the statement of witnesses namely Ganeswar Mahanta and Maneswar Bora. In course of investigation of the case as directed by the I/O Inspector M N Sarma accused J K Mazumdar in his official capacity as Jt. Director of IWT submitted his D/A statement on 2.3.98 which is exhibited as Ext. Y(6). The check period was 1974 to December 1997. As per his statement immovable property – includes 5 Nos. of plot of land purchased with cost of Rs. 73,100/- and 3 Nos. of buildings worth Rs. 6,67,332/- (details is given in Ext. Y6(1) & Y 6(2). Movable property – includes 13 items ( Scooter, Freeze etc) worth Rs. 1,36,110/- (details in Ext.

Y6(3) & Y6(4) . Investment - includes bank deposit, Bank

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Balance, Cash in hand etc. worth Rs. 8,37,113/-(details in Ext. Y6(5), Y6(6), Y6(6a), Y6(6b), Y6(8), Y6(12) & Y6(16).

Expenditure - includes family maintenance, GPF, LIC, etc. worth Rs. 5,02,797/-(details in Ext. Y6(7), Y6(9), Y6(14), Y6(17), Y6(18), Y6(19) & Y6(20). Grand Total Assets and Expenditure comes to Rs. 22,16,452/-. Income – includes Salary from 1974 to 31.12.98 for Rs. 10,28,838/-, maturity investment Rs. 84,335/-, House building advance Rs. 11,000/-, His wife's income is Rs. 6,52,546/-. So total income (both husband and wife) comes to Rs. 17,76,719/-( details in Ext. Y6(10), Y6(11), Y6(13), Y6(15) & Y6(16). As per his statement his disproportionate assets comes to Rs. 4,39,733/-.

39. The CW-2 states during cross-examination conducted by accused Raj Hussain Khan as follows : He has no personal knowledge about the manner in which the documents of this case was seized by the I/O. In his chargesheet he has not specifically mentioned about the contract agreement executed by the department with the farm under which payments were made.

40. The CW -2 during cross-examination conducted by accused J. K. Mazumder stated as follows : He simply seizsed the documents but he did not separately investigate as to the documents. He did not examine any witness of this case. He has simply submitted the chargesheet against the accused persons in this case. He has seized the documents

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from the custody of Record Inspector, V&AC, but he has not mentioned in his seizure list where from they have collected the seized documents. In his seizure list he has not specifically mentioned in detailed that how much money was paid in the name of which farm. In his chargesheet he has not specifically mentioned the detailed of the income and expenditure and savings of accused J.K. Mazumder. He has not shown the details of Rs. 6,00,000/- came as a disproportionate assets in the name of the accused. In his chargesheet he has not specifically mentioned about the contract agreement executed by the department with the farm under which payments were made. He submitted the chargesheet in this case and he has not shown DA calculation in the chargesheet. He simply seized Ext. Y. DA statement of accused J.K. Majumder. He did not separately investigate as to the contents of Ext. Y. The house of the accused was searched on 29.7.2000. Ext. Y(6) was submitted on 2.3.98. Ext. Y(6) CBI proforma, DA statement submitted by the accused as on 31.12.97. He has stated in his re-examination in chief on 5.10.12 that the DA statement on the basis of Ext. Y(6) is up to 31.12.97. After house search one more DA statement in CBI proforma was submitted by the accused J.K. Mazumder on 6.10.2000 and details up to 29.7.2000 vide Ext. Y(9). Accused submitted his salary statement vide annexure 1 of Ext. Y(9) up to 29.7.2000 amounting to Rs. 14,63,315/- vide annexure 5 accused submitted details agricultural income till 29.7.2000

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amounting to Rs. 1,16,810/-. vide annexure 2 accused submitted detains of initial investment of NSC and maturity value, vide annexure 3 accused submitted initial investment and maturity value, vide annexure 6 accused submitted income of his wife till 29.7.2000, vide annexure A accused submitted rental income, business income, agricultural income, LIC commission of his wife Mira Mazumder, vide annexure B details of NSC with initial amount and maturity value, vide annexure G payment of income tax of Mira Mazumder wife of accused. He did not state about the contents of Ext. y(9) in his earlier deposition.

41. CW-3 Sri Farzan Ali Laskar during trial and in his examination in chief states as follows : He joined in his service in the year 1967 as Sub-Inspector of Police. On 17.5.2000 he was working as DSP, V&AC, Assam and on that day he received the case diary of ACB PS Case No. 2 dated 29.03.2000. The case was earlier endorsed to Inspector M.N. Sarma, On his deputation to police Training College, Dergaon this case was re-endorsed to him to proceed with the investigation and according he has started investigation. He has recorded the statement of complainant Kamaleswar Dutta, DSP, Vigilance & Anti Corruption, Assam. On return of Sri M. N. Sarma the case was re-endorsed to him for completing the investigation of the case. Accordingly he has handed over the CD to him. While giving the statement by complainant Sri Kamaleswar Dutta he supported the FIR and the prosecution case.

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So these are all about the evidences of CWs. 42. 8 persons were examined by the defence side as the

DWs. The DW-1 Sri Parag Patra during trial and in his examination in chief states as follows : He is a businessman and have been doing business for about 35/40 years. He used to let out rooms of his house for commercial purpose as the area falls in the commercial area. He knows Mrs. Mira Mazumder wife of J.K. Mazumder, who was the tenant in his one commercial room at Dr. B.K. Kakati Road, Ulubari. First in the month of August, 1990 said Mira Mazumder approached him for a commercial room for running a shop under the name and style 'Maspa and Sales Service' for charging and repairing battery and car electrical equipments. The said shop was started in the month of October, 1990 till December, 2002. After 2/3 years of 1990 they used to sale distil water of battery which was manufactured in their residential premises. The business was running good. They used to pay monthly rent of Rs. 600/- and it was enhanced to Rs. 800/- after five years. We did not execute any written agreement, everything was done on verbal agreement. The tenant Mira Mazumder gave one acceptance letter only accepting the room rent @ Rs. 600/- per month from October, 1990 and he accepted the same. Ext. A (under objection) is the carbon copy of the said acceptance letter written by Mira Mazumder with her signature and Ext. A(1) is his original initial accepting the

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same. The original of Ext. A which was submitted to him is not available with him because of passes long time. During 2002 his mother expired and Mira Mazumder also vacated the room on his request and they shifted the shop.

43. During cross-examination the DW-1 states that the business was run by the wife of J.K. Mazumder.

44. DW-2 Sri Thuleswar Saikia during trial and in his examination in chief states as follows : During the year 1991 he was working as Senior Inspector of Cooperative Society, Govt of Assam. He was tenant in the rented premises of Smti Mira Mazumder wife of J. K. Mazumder since July, 1991 to April, 1994. Thereafter he shifted to his own newly constructed residential house. He paid @ Rs. 1250/- per month as house rent to Smti. Mira Mazumder by cash up to March, 1994. During this period he paid total Rs. 41,250/- as house rent. In the last month i.e. April, 1994 he paid house rent of Rs. 1500/-. Altogether he paid Rs. 42,750/-. He paid the electricity bill separately. He did not obtain any monthly rent receipt from the land lady Mira Mazumder. Only he used to obtain annual rent certificate to submit the same before his government controlling office. He did not retain any copy of the rent certificate which was submitted to his department, the same may be retained to the land lady Mira Mazumder. He did not execute any house rent agreement, only on verbal agreement he stayed there as tenant. There was an Assam type house in the campus wherein a manufacturing unit of battery distilled water was run by Mira

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Mazumder. There was also one knitting embroidery unit run by her. She had also a battery repairing shop in Ulubari, Guwahati. Apart from this Mira Mazumder has some agricultural income from her agricultural produce. He stayed in the ground floor area and the land lady was staying in the first floor. The first floor roof was Assam type.

45. DW-3 Sri Ranjit Bhuyan during trial and in his examination in chief states as follows : He has been working in the Directorate of Census, Government of India in Guwahati since 1990. He was staying in the rented premises of Mira Mazumder at Sarumotoria from September, 1997 to March, 2001. He paid house rent @ Rs. 2600/- per month to Smti. Mira Mazumder wife of J.K. Mazumder from Sept, 1997 to March, 99 total Rs. 49,400/-. Thereafter he paid house rent @ Rs. 2750/- from April, 99 to March, 01 total Rs. 66,000/-. He left the house in the month of April, 01 and shifted to his own house at Bhetapara. During the said period he paid altogether Rs. 1,15,400/- to Mira Mazumder wife of J.K. Mazumder. He was staying in the ground floor of the building and the land lady was staying in the first floor. He do not remember now the structure of the roof of the first floor. In the same premises there was another house of RCC having ground floor where Gunamani Mahanta was the tenant. There was another Assam type house where some boys was staying as tenant. So far he remember one Niranjan, one Pradip were the tenant in the said Assam type house. There was one battery distilled water manufacturing

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unit in the said premises. Smti. Mira Mazumder was having one battery repairing shop at Ulubari, Guwahati. Smti. Mira Mazumder was having agricultural income from agricultural produce. Before he occupied the house there was one tenant namely Roy Barman. He does not know the tenant who has been occupying the said room after his vacation. He did not obtain any monthly rent receipt from the land lady, but he obtained only rent certificate to submit the same before his controlling office. He did not retained any copy of the said rent certificate. One office copy was retained by the land lady. He did not execute any written agreement, only on verbal agreement I stayed there.

46. DW-4 Smti. Archana Das Kalita during trial and in her examination in chief deposed as follows : Presently she was doing business of knitting and embroidery etc. and she was a qualified music teacher. She completed Senior Diploma in vocal in the year 1988 and Visharad from Sangeet Vidyapit in the year 2010. Ext. B is the certificate of Senior Diploma certificate (proved in original) and Ext. C is the certificate of Visharad of vocal (proved in original). She also did one Diploma of knitting and embroidery certificate in the year 1985. Ext. D is the said certificate (proved in original). She started doing business of embroidery and also started teaching music since 1988-89. She came to Guwahati and started business and music teaching in the year 1989. She stayed at with her elder sister Smti Mira Mazumder at Rukminigaon who stayed in the house of elder brother of her

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brother-in-law J. K. Mazumder. In the year 1989 her elder sister Mira Mazumder wife of J.K. Mazumder purchased a plot of land at Pub Sarumotoria and started construction of residential house. Her elder sister was also doing knitting and embroidery business and she also joined her in her business. They also shifted to the newly constructed house and started business jointly. Her elder sister Mira Mazumder started another business of battery charging in the name and style “Maspa” and also started one business of distilled water unit in her house in the year 1990. Then she started the business of knitting and embroidery independently. She earned about rupees 2 to 3 thousand income from knitting and embroidery per month and rupees 1 thousand per month from music teaching. Her elder sister was slowly constructing her house step by step from her own income and also from personal loan etc. Since she was staying with her elder sister she did not have regular expenses and she gave loan of Rs. 20,000/- in the year 1990, Rs. 30,000/- in the year 1992 and Rs. 12,000/- in the year 1997. She got married in the year 1997 and thereafter she has been doing business and running music teaching. Personal loan was returned by her elder sister in installments after 5 to 6 years from her income. They were 4 sisters and 3 brothers. Her parental family was a joint family and was known as Mahajan Family at her native place. After death of her father her mother inherited some properties. Cash savings of her mother were distributed among her 4 daughters. They

41

all the sisters received Rs. 18,000/- each and to that effect her mother Smti Bishnupriya Das executed one document to avoid future conflict, and she being the youngest daughter such family documents were with her. Ext. E is the said document. Ext. E(1) is the signature of her mother Bishnupriya Das and Ext. E(2) is the signature of her eldest brother Arjun Kr. Das, who put his signature as a witness. She is having one SB account in the SBI, Dispur Branch. The original passbook of the said account was seized by police during house search of her brother-in-law. She had also kept her valuable thing including passbook and jewelery in the house of her elder sister as she was staying in a rented house and even after her marriage she kept her jewelery which were received during her marriage in the locker of her elder sister Mira Mazumder wife of J.K. Mazumder. Today she has brought one duplicate copy of the said passbook and exhibited as Ext. F (proved in original). Her brothers and sisters were involved in business. One of her brother owned one petrol pump at Goalpara and is still in running condition.

47. DW-5 Sri Pradip Kumar during trial and in his examination in chief states as follows : He is presently doing private service and staying at Garchuka area. He knows Smti. Mira Mazumder wife of J.K. Mazumder as he was staying in her house as tenant. They three persons namely himself, Nikunja Kalita and Niranjan Das were staying in sharing in the Assam type house of Mira Mazumder since 1996 at Pub Sarumotoria. They all were doing private job.

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They were staying there for 5 years till 2001 and during the stay the house rent was Rs. 1200/- per month and paid the same by collecting shares among three of them. They paid electricity bill separately. The land lady used to issue house rent receipt in the name of any one of them every month though they did not require the same. They were bachelor and they vacated her house after marriage or joining other jobs. They did not retain any rent receipts.

48. DW-6 Sri Sailendra Kr. Mazumder during trial and in his examination in chief states as follows : He is doing business. Accused J. K. Mazumder is his uncle. His late father Ruhini Kr. Mazumder was the elder brother of J.K. Mazumder, he was working in the Forest Deptt, Govt of Assam and retired in the year 1989. The name of his aunt is Mira Mazumder wife of J.K. Mazumder. His aunt many times requested his father and borrowed some money for the purpose of construction of her house after the retirement of his father. His aunt Mira Mazumder asked him to search of any document which was executed by his father for the purpose of giving money to her. Accordingly he searched and found only one document and brought it today. By that document an amount of Rs. 28,000/- was given to Smti. Mira Mazumder wife of J.K. Mazumder on 7th day of August, 1994. Ext. G is the said document wherein Ext. G(1) is the signature of his father. They originally hailed from Goalpara district, now Bongaigaon district and our cultivable land are looked after by one of his uncle.

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49. DW-7 Smti Mira Mazumder states during trial and in her examination in chief as follows : She is a business woman doing business of knitting, embroidery, stitching, battery repairing, electrical unit, Maspa distilled water LIC agency etc since 1982. She is a post graduate in Economics from Gauhati University in the year 1979. Ext. H is the copy of MA passed certificate (proved in original). Thereafter she joined as a teacher in SBP Memorial HS School at Mornoi in Goalpara district. She has worked there about 2 ½ years. She got married in the later part of 1979 and her first child was born in the year 1982 and she left the job. Ext. I is the copy of appointment letter issued by Principal of the said school (proved in original). Initially she used to get about Rs. 700/- per month in the pay scale of Rs. 475 – 30 – 625 – EB – 35- 1125/- per month. Later she used to receive Rs. 800/- per month. She shifted to Guwahati permanently in the year 1982 since her husband was posted at Guwahati. They started staying in the house of elder brother of her husband at Rukminigaon. Her maternal family is a business family and we brother and sisters were inclined towards business and they were doing different business. Her elder brother owned a patrol pump. Also she has inclination towards business and as such she started private tuition at Rukminigaon house at Guwahati. She taught students of class- IX to XII and she continued tuition till 1989. Initially she started earning Rs. 400/- per month and finally increased about Rs. 900/- per month. During that period she

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also started knitting, embroidery business simultaneously from the same year and continued till 1990 since the Rukminigaon area newly developed area and as such she started earring about Rs. 1000/- to 1100/- per month. In the year 1989 she purchased a plot of land at Pubsarumataria, Jakirhussain Path at the considered amount of Rs. 35,000/- from one Bhaben Saikia. She purchased the said plot of land from own savings. The plot of land was having coconut, battle-nut, banana trees etc.

50. Thereafter she started construction of a RCC residential house in the said plot of land and they shifted to the said house at Pubsarumatoria in the last part of 1989 in a half done construction stage house since they were staying in the house of the elder brother of her husband. She stopped doing private tuition as the place was a new place, but she continued the knitting and embroidery business. Her younger sister Archana Das Kalita also joined her in the said business since she was trained in knitting and embroidery business and she was also trained vocationalist. They both continued in knitting and embroidery in two Assam type rooms in the said plot of land and her younger sister Archana started music class also. Archana joined her in business at Rukminigaon residence and she was staying with her. The construction of her residential house was in phases and she could complete the same in the year 2004-05. She borrowed money as loan from her relative and also her younger sister Archana. She took an amount of Rs.

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20,000/- as loan from Archana in the year 1990 and again in the year 1992 she took loan of Rs. 30,000/- from her and again she took a loan of Rs. 12,000/- in the year 1997 from her. Her mother Bishnupriya Das has distributed an amount of Rs. 18,000/- each to his all daughters and also received the amount in the year 1990. She also asked for financial help from her mother-in-law and she also gave her an amount of RS. 18,000/- in the year 1990. In the year 1993 she approached the elder sister of her husband Jayantia Das who was Head Mistress of Govt school for financial help and she also gave her an amount of Rs. 25,000/- though she asked the amount as loan but she asked her not to repay and in future to repay to her children if occasion arises. She also took a loan of Rs. 28,000/- from the elder brother of her husband, Ruhini Mazumder who was a retired Forest official. She knew her mother-in-law had savings and asked her mother-in-law for financial help for construction, she gave her Rs. 18,000/- in the year 1990, and again when she asked her she gave her an amount of Rs. 25,000/- in 1995. She took all those amounts on loan for the purpose of construction of her house and she also a part of the same loan invested in her business. She repaid the loan amount to her younger sister Archana after several years, but the other relatives refused to take the loan amount and asked her to repay the same to their children if occasion arises. She handed over the knitting and embroidery business to her younger sister Archana in the year 1990 and she started

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planning to set up another business. Accordingly she started one business of battery repairing, charging and car electrical etc. she knew one Parag Patra of Ulubari at Guwahati and when he constructed shop rooms in the commercial area at Ulubari and she took one room and she started the business of battery repairing, charging etc. in the year 1990 in the month of October under the name and style of 'MASPA SALES AND SERVICE'. The said business was registered in the District Industries Center, Kamrup, Guwahati. Ext. J is the copy of the said certificate of registration (proved in original). She started the said business with investment of Rs. 3000/- in the said unit. She engaged one technician and one helper. This business was running very good since Ulubari was a business area. In the year 1992 she set up another unit of distill water in her residence under the chali-roof in the name and style of 'Maspa Acqua Industries'. She purchased one water distilled water machine and water was of her tube well. The machine was purchased at an around of Rs. 10,000/-. She also registered this unit in District Industries Center, Kamrup, Guwahati. Ext. K is the copy of registration certificate (proved in original). This unit started in early part of 1993. These two business were running very good and she used to earn net more than Rs. 20,000/- per year after deducting all expenses. Land lord Parag Pathra asked her to vacate the shop in the month of December, 2002 and thereafter she closed the said business and kept the

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equipments in her residence. She stopped the business 'Maspa Acqua' in the year 2010 just before the marriage of her daughter as the space was necessary to perform the marriage ceremony in her residence. She constructed the first floor with Assam type roof and they shifted to the first floor in half done condition and let out the ground floor on rent to one Tuleswar Saikia who was Inspector of Cooperative Deptt, Govt of Assam in the year 1991. She did not execute any house rent agreement, only in verbal agreement she let out the house. She issued annually rent certificate to the tenant as it was necessary for him for submitting the same in his office. She used to keep one copy of the same for her record. Exts. L, L(1) to L(3) are the said rent certificates wherein Exts. L(4) to L(7) are her signatures. She received total Rs. 42,750/- from him as house rent. This tenant Tuleswar Saikia vacated the house in the month of April, 1994 and the house was vacated for two months and again she let out the same house to one Pradip Ray Barman, who was income tax practitioner from the month of July, 1994 and he also stayed for three years and paid total house rent of Rs. 63,700/-. She also issued him annually rent certificate keeping a copy of the same. Exts. M, M(1) to M(3) are the said rent certificates, wherein Exts. M(4) to M (7) are her signatures. The said tenant vacated the house in the month of July, 1997 and the house was vacated for one month. Again she let out the house to one Ranjit Bhuyan in the month of September, 1997 who

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was working in the Directorate of Census, Govt. of India and he paid total rent of Rs. 1, 15,400/-. She also issued annually rent certificates to him for his official purpose keeping the copy of the same for her record. The said tenant vacated the house in the month of March, 2001 and shifted to his own residential house. Exts. N, N(1) to N (3) are the rent certificates wherein Ext. N(4) to N(7) are her signatures. By 1996 there was a proposal of marriage of her younger sister Archana and for time being she stopped conducted music class and one room in the Assam type house became vacant, then they constructed one another room with attached bath room, latrine, kitchen and baranda along with the said room and let out the said room to three bachelor boys, who stayed in the said room in mess. The room was a big room having accommodation of three beds. From 1996 they paid rent @ 1200/- per month. She still remember the name of the boys one was Pradip Kumar, Nikunja Kalita, Niranjan Kalita who were doing private jobs and they vacated the house in the year 2001 after their marriage. Her younger sister Archana got married in the year 1997 and her room also became vacant and she also let out the said Assam type house to other persons. Since they were doing private jobs they did not require rent certificate, but on principle she issued monthly rent certificate, but she did not keep the copy of the same. In the year 1998 she constructed one small RCC house and let out the same to one Dr. Gunamoni Mahanta, Gynecologist and in the year

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1999 he also obtained annual rent certificate from her and she kept copy of the same for her record. Exts. O and O(1) are the said rent certificates wherein Exts. O(2) & O(3) are her signatures. He paid house rent total of Rs. 60,000/- till March 2001 @ Rs. 2500/- per month. She had also one LIC agency and she used to receive commission from the agency since 1989 till 2007 and she used to sale the agriculture product such as coconut, battle-nut, banana etc. from her own agriculture garden at Pubsarumataria. She used to earn around Rs. 6000/- approximately per year from the selling the said agriculture product and still continued the same. She have apart from the construction of her house she also invested as NSC, UTA etc. from her own income. She is an income tax assessee and submitting income tax return since 1982. Ext. P is the copy of the PAN being no. AIMPM6232C (proved in original). Exts. Q and R are the copy of building permission certificates (proved in original) issued by GMC and GMDA. Her child were married. Her son did M. Tech getting scholarship from IIT, Bombay and did fellowship from America. Her daughter also did Engineering from Assam Engineering College getting scholarship and M.Tech from NIT and did fellowship from Bengkok. Now her son is working in USA and daughter in Uman and they got scholarship on their merit.

So these are all about the evidences on record. 51. Herein this case two accused namely Jibon Kishore

Mazumder and Raj Hussain Khan are facing trial. Accused J.

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K. Mazumder has been facing trial u/s 420/409/468/120(B) IPC R/W Sec. 13(1)(e)/13(2) PC Act. On the other hand, accused Raj Hussain Khan has been facing trial u/s 420/409/468/120(B)/471 IPC r/w Sec. 13(2) of PC Act. For the sake of better appreciation of evidence on record now let us have a look at the ingredients of the aforesaid charges.

52. The following ingredients are required to be generated in order to bring the charges alleged of home. So far Section 120(B) is concerned the essential ingredients are – (i) an agreement between two or more persons ; (ii) The agreement should be to do or cause to be done some illegal act or some act which is not illegal, by illegal means, provided that where the agreement is other than one to commit an offence, the prosecution must further prove; (iii) That some act besides the agreement was done by or more of the parties in pursuance of it. In respect of Section 409 the essential ingredients are – (i) That the accused was entrusted property in any manner; or That such property was in his dominion in his capacity of a public servant, or as banker, merchant, factor, broker, attorney or agent, in the way of his business in such capacity; (ii) That the accused committed breach of trust in respect of that property. The essential ingredients so far Section 420 is concerned are – (i) There must be deception i.e. the accused must have deceived someone; (ii) That by the said deception. The accused must induce a person,- (a) deliver

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any property; or (b) to make, alter or destroy the whole or part of the valuable security or any thing which is signed or sealed and which is capable of being converted into a valuable property. (iii) That the accused did so dishonestly. The essential ingredients under the Section 468 are – (i) That the accused committed forgery; (ii) That he did so intending that the document or electronic record forged shall be used for the purpose of cheating. The essential ingredients in respect of Section 471 are – (i) Fraudulent or dishonest use of a document as genuine ; (ii) The persons using it must have knowledge or reason to believe that the document is a forged one. The important ingredients of Section 471 , IPC are that a document although not genuine, and a person knowing it not to be genuine or having reasons to believe that it is not a genuine but a forged document, uses it and that also fraudulently and dishonestly, and then it comes within the mischief of Section 471, IPC. It is not necessary that the use should be in a particular manner. If it is known to be not a genuine document and it is used, it is sufficient. The section does not lay down as to what would be the punishment for it, but it only lays down that the accused shall be punished in the same manner as if he had forged such document and although the section does not specify the punishment, but it clearly lays down that the punishment shall be just like a punishment for forgery. First of all it has to be proved that the document is forged, as contemplated by Ss. 462, 464

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and 471 can come into operation only if a document is not genuine but a forged one. The ingredients of the section 13(2) of PC Act is the materials as regards the commission of criminal misconduct by the public servant. On the other hand, the essential ingredients of section 13(1)(e) is the failure of the public servant to explain satisfactorily account of pecuniary resources or property disproportionate to his known source of income.

53. Now it is to be ascertained whether the materials surfaced in

the testimonies of the witnesses are sufficient enough to attract the

ingredients of the aforesaid sections as stated herein before or not ?

54. On a minute perusal of the entire evidences on record it is

revealed that the prosecution side examined a number of witnesses,

among them some are vital witnesses. But from their testimonies no

materials either u/s 120(B) or 409 or 420 or 468 or 471 IPC have so

far been made out. None of the PWs or CWs has recorded success to

implicate the accused persons with the charges of aforesaid sections.

A numbers of documentary evidences were also adduced, but the

witnesses could not state anything about the contents of the same. No

PW could depose as regards the entrustment of the govt. money with

the accused persons as revealed from the cross-examination of the

vital witnesses such as PW-6, PW-7 and PW-13. This apart no

witnesses has deposed about the commission of criminal conspiracy

hatched up by the accused persons. In regard to the commission of

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offence u/s 468 and 471 IPC nothing has come out from the

testimonies of the PWs or CWs. During trial a numbers of documents

were exhibited as documentary evidences. But its contents were not

exhibited, due to which purpose for the exhibition of the aforesaid

documents is not established.

55. For the aforesaid reasons I am constrained to observe that

herein this case the materials surfaced attracting the ingredients of the

aforesaid sections are lacking and i.e. why the same is insufficient to

establish the aforesaid charges In support of the offence allegedly

committed u/s 13(2) of PC Act the materials found to be lacking. In as

much as no PW is found to be able to bring cogent material in support

of the said charge. It needs to be mentioned here that the charges u/s

13(1)(e) was also framed against accused Jibon Kishore Mazumder.

The prosecution led the evidences in support of the said charge in the

following manner : As per PW-6 (Kamalesawar Dutta) accused J.K.

Mazumder acquired disproportionate assets and properties to the tune

of Rs. 2,74,009/- to his known source of income. CW-2 Dinesh Ch.

Bagawati being one of the I/Os of the case completed the

investigation and submitted the chargesheet. According to him the

check period was 1974 to December, 1997. CW-2 deposed that Grand Total Assets and Expenditure comes to Rs. 22,16,452/-. Income – includes Salary from 1974 to 31.12.98 for Rs. 10,28,838/-, maturity investment Rs. 84,335/-, House building advance Rs. 11,000/-, His wife's income is Rs. 6,52,546/-. So total income (both husband and

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wife) comes to Rs. 17,76,719/-( details in Ext. Y6(10), Y6(11), Y6(13), Y6(15) & Y6(16). As per his statement his disproportionate assets comes to Rs. 4,39,733/-. But the same CW-2 during cross examination conducted by accused J.K. Mazumder states as follows He simply seized the documents but he did not separately investigate as to the documents. He did not examine any witness of this case. He has simply submitted the chargesheet against the accused persons in this case. He has seized the documents from the custody of Record Inspector, V&AC, but he has not mentioned in his seizure list where from they have collected the seized documents. In his seizure list he has not specifically mentioned in detailed that how much money was paid in the name of which farm. In his chargesheet he has not specifically mentioned the detailed of the income and expenditure and savings of accused J.K. Mazumder. He has not shown the details of Rs. 6,00,000/- came as a disproportionate assets in the name of the accused. In his chargesheet he has not specifically mentioned about the contract agreement executed by the department with the farm under which payments were made. He submitted the chargesheet in this case and he has not shown DA calculation in the chargesheet. He simply seized Ext. Y. DA statement of accused J.K. Mazumder. He did not separately investigate as to the contents of Ext. Y. The house of the accused was searched on 29.7.2000. Ext. Y(6) was submitted on 2.3.98. Ext. Y(6) CBI proforma, DA statement

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submitted by the accused as on 31.12.97. He has stated in his re-examination in chief on 5.10.12 that the DA statement on the basis of Ext. Y(6) is up to 31.12.97. After house search one more DA statement in CBI proforma was submitted by the accused J.K. Mazumder on 6.10.2000 and details up to 29.7.2000 vide Ext. Y(9). Accused submitted his salary statement vide annexure 1 of Ext. Y(9) up to 29.7.2000 amounting to Rs. 14,63,315/- vide annexure 5 accused submitted details agricultural income till 29.7.2000 amounting to Rs. 1,16,810/-. vide annexure 2 accused submitted detains of initial investment of NSC and maturity value, vide annexure 3 accused submitted initial investment and maturity value, vide annexure 6 accused submitted income of his wife till 29.7.2000, vide annexure A accused submitted rental income, business income, agricultural income, LIC commission of his wife Mira Mazumder, vide annexure B details of NSC with initial amount and maturity value, vide annexure G payment of income tax of Mira Mazumder wife of accused. He did not state about the contents of Ext. y(9) in his earlier deposition.

56. The testimonies of DWs would show that wife of the accused J.K. Mazumder got Rs. 42,750/- as house rent from DW-2. She (wife of the accused J. K. Mazumder) got further an amount of Rs. 49,400/- as house rent from DW-3. Further wife of the accused took loan amount of Rs. 62,000/- from DW-4. Also she got an amount of Rs. 18000/- from her mother. DW-5 deposed that he alongwith the others had

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paid an amount of Rs. 28,800/- as house rent to the wife of the accused J.K. Maumder for the period from 1996 to 1998. DW-6 deposed that the wife of the accused J.K. Mazumder borrowed a sum of Rs. 28,000/- from his father. The wife of the accused J.K. Mazumder as DW-7 during trial had given the detailed accounts of her income and about her assets which she acquired during the said period. The aforesaid testimonies of CWs and DWs show that CW-2 being the most material witness i.e. the I/O, who completed the investigation and submitted the chargesheet did not show the D/A calculation in the chargesheet. Also there is discrepancies in the deposition of the informant and the CW-2 as the amount of disproportionate income of accused J.K. Mazumder.

57. This apart, there was no sanction to prosecute the accused J.K. Mazumder u/s 13(1)(e) of PC Act from the competent authority. In this regard Ld. defence counsel during argument invited the attention of the Court to the observation recorded by the Hon'ble Apex Court of the country in Criminal Appeal No. 1867 of 2012 (Nanjappa Vs. State of Karnataka) reported in (MANU/SC/0788/2015).

58. On the other hand, from the testimonies of the DWs it reveals that the accused J.K. Mazumder has attempted to explain the disproportionate income allegedly acquired for the check period. During trial prosecution cross-examined all those DWs who had accordingly attempted, but could not demolish their story. For the aforesaid reasons also it can

57

not be observed that the charge u/s 13(1)(e) of the PC Act has been established beyond all reasonable doubt against accused Jibon Kishore Mazumder.

59. Considering the aforesaid facts and circumstances in the light of the entire evidences of record it is to be observed that the evidences so far surfaced in the testimonies of the PWs are not at all sufficient to attract the ingredients of the charges alleged of. Therefore due to insufficiency of evidences the accused are entitled to get the benefit of doubt. Accordingly on benefit of doubt the accused are acquitted and set at liberty forthwith. There Bail bonds stands discharged.

The seized gold ornaments and other articles shall befurnished from whom the same were seized.

The case is disposed of accordingly. Given under my hand and seal of this Court on this 31st day of August, 2015.

Dictated and corrected by me.

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

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A P P E N D I X

Exhibited by Prosecution :

(1) Exts. 1, 3, 10,18 to 22, Y - Seizure lists

(2) Ext. 2, 11 to 15 - File

(3) Exts. 4 to 8 – Payment register

(4) Ext. 9- Register

(5) Ext. 16- FIR

(6) Ext. 17 – Format FIR

(7) Ext. 23 - Sanction order

(8) Ext. 24- Forwarding letter

(9) Ext. X- Photocopy of pan card

(10)Ext. Z – Chargesheet

(11)M. Exts. 1, 1(1) and 1(2) – gold chains,

(12)M. Ext. 2 – one gold neckless

(13)M Ext. 3 – small ring

(14)M Ext. 4- one pair ear-ring

(15)M Ext. 5- one pair ear-ring

(16)M Ext. 6- one neckless

(17)M Ext. 7- one ring

(18)M Ext. 8- one pair ring

(19)M Ext. 9- one pair bouti

(20)M Ext. 10- one ring

(21)M Ext. 11to 13 – containers

(22)M Ext. 14 – official personal file

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(23)M Ext. 15 – personal file (tour)

(24)M Ext. 16 – Lose papers

(25)M Ext. 17 – Personal file

(26)M Ext. 18- personal file of J.K. Mazumder

(27)M Ext. 19- Booklet

(28)M Ext. 20-Cash receipt

(29)M Ext. 21 ICIC Safety bonds

(30)M Exts. 22, 23- Money receipts

(31)M Ext. - 24 – ICIC Classic

(32)M Ext. 25- Cheque counterfoil

(33)M Ext. 26- Letter of ICIC

(34)M Ext. 27 – Peerless certificate

(35)M Ext. 28-Passbook

(36)M Ext. 29- Cooperative City Bank

(37)M Ext. 30 – SBI Locker key

(38)M Exts. 31 to 53 – UTI certificates

(39)M Exts. 54 & 55 - Share certificates

(40)M Ext. 56 – Vacation tour slip

(41)M Ext. 57- Nineteen Air ticket

(42)M Ext. 58 – American dollar

(43)M Exts. 59 & 61 – Registration certificates

(44)M Exts. 60 & 62 – Vehicle insurance certificates

(45)M Ext. 63- Title deed

(46)M Exts. 64 to 66- Sale deeds

(47)M Ext. 67 – Cashmemo

(48)M Ext. 68 – one gold neckless

(49)M Ext. 69 – one gold ring

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(50)M Ext. 70 – one pair ear ring

(51)M Exts. 71 & 72 – two ring

(52)M Ext. 73 – Cheque book

(53)M Exts. 74 to 76 – Passbooks

(54)M Ext. 77 – Registration certificate

(55)M Exts. 78 to 82 – Insurance policies

Exhibited by defence -

1. Ext. A- Letter

2. Ext B- Senior Diploma certificate

3. Ext. C- Diploma certificate(Vocal)

4. Ext. D- Diploma certificate of knitting and embroidery

5. Ext. E- Will letter

6. Ext. F- Bank accountant

7. Ext. - G- Declaration

8. Ext. H – Certificate of graduation

9. Ext. I – Appointment letter

10. Exts. J & K – Provisional registration certificates

11. Exts. L, M, NN, O – House rent receipts

12. Ext. P – Pan card

13. Ext. Q – Letter

14. Ext. R – NOC

15. Exts. S to T- Income tax returns.

Special Judge, Assam Guwahati.