Gauhati High Court
Page No.# 1/14 vs The State Of Assam on 28 October, 2024
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/14
GAHC010177592022
2024:GAU-AS:10500
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./218/2022
DEBESWAR TAUKDAR
S/O LATE KAMESWAR TALUKDAR,
RESIDENT OF HOUSE NO. 16, UJJAL NAGAR, PS DISPUR, GUWAHATI,
KAMRUP M ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY PP ASSAM
2:SUSHIL PATOWARY
S/O SRI RATNESWAR PATOWARY
RESIDENT OF HOUSE NO. 11
NIZARAPARA PATH
HENGRABARI
GUWAHATI
KAMRUP M ASSAM 78103
Advocate for the Petitioner : MR. B K MAHAJAN, MR. D BORA,MR. N MAHAJAN,MR. P K
DAS,MR. A CHAUDHURY
Advocate for the Respondent : PP, ASSAM,
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:: PRESENT ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Appellant : Mr. B.K. Mahajan,
Advocate.
For the Respondents : Mr. D. Das,
Addl. P.P., Assam.
Date of Hearing : 08.08.2024.
Date of Judgment : 28.10.2024.
JUDGMENT AND ORDER (CAV)
Heard Mr. B.K. Mahajan, learned counsel appearing for the appellant. Also heard
Mr. D. Das, the learned Addl. Public Prosecutor, Assam.
2. This is an appeal under Section 374(2) of the Code of Criminal Procedure against
the judgment and order dated 16.08.2022 passed by the learned Special Judge,
Assam in Special Case No.11/2018.
3. The informant Sushil Patowary wanted to purchase the 42 Seater Star Bus.
Therefore, on 14th December, 2015 at about 4.30 P.M., he went to the office of the
Transport Commissioner, Guwahati for getting an "Assurance Letter" for procuring road
permit. Mr. Patowary met the present appellant who was working there as the Senior
Assistant.
4. The appellant allegedly demanded an amount of ₹38,000/- as bribe for issuing
the said "Assurance Letter".
5. The informant Mr. Patowary, therefore, 07.12.2015 approached the Anti
Corruption Bureau (ACB) Police Station by filing a written complaint.
6. Police registered the ACB P.S. Case No.15/2015 under Section 7/13(1)(d)/13(2)
of the Prevention of Corruption Act, 1988.
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7. Police laid a trap. Accordingly, on 07.12.2015, Mr. Patowary paid a cash amount
of ₹8,000/- the appellant and the police team caught him red-handed.
8. Police further recovered an amount of ₹7,09,470/- from the possession of the
appellant. The appellant was arrested.
9. Finally, on conclusion of investigation, the Investigating Officer filed the charge
sheet against the appellant under Section 7/13(1)(d) and Section 13(2) of the
Prevention of Corruption Act, 1988.
10. The trial court framed charges under Sections 7 and 13(2) of the Prevention of
Corruption Act, 1988 against the appellant.
11. The prosecution side examined 16(sixteen) witnesses. The appellant examined
2(two) defence witnesses.
12. Finally, on the basis of evidence, the trial court convicted the appellant under
Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. He was sentenced to
undergo rigorous imprisonment of 3 years and to pay a fine of ₹8,000/- with default
stipulations. He was also sentenced to undergo rigorous imprisonment of 4 years and
was sentenced to pay ₹10,000/- with default stipulations.
13. Aggrieved by the aforesaid judgment, the present appeal has been filed.
14. The primary ground of appeal is that the trial court failed to appreciate the
evidence in its proper perspective. It has been pointed out that the PW.3 in his cross-
examination has stated that the appellant never demanded money on his behalf
though he used to issue the said "Assurance Letter".
15. I have gone through the prosecution evidence as well as defence evidence.
16. The first prosecution witness was Satyajit Das Choudhury. He is a constable. On
07.12.2015, he accompanied the police team who caught the appellant red-handed at
the time of accepting a cash amount of ₹8,000/-. The aforesaid incident took place in
front of his eyes.
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17. At the time of his cross-examination, the appellant had suggested that he was
not present at the time of occurrence. Apart from this suggestion which was denied by
the witness, there is nothing relevant in his cross-examination.
18. The second prosecution witness is Bhagawan Das. He is also a police constable.
He accompanied the police team on 07.12.2015 and witnessed the occurrence.
19. In his cross-examination, this witness has stated that he did not witness the
appellant receiving the bribe from the informant.
20. The third prosecution witness is Sushil Patowary. He is the informant. By
profession, he is a journalist. He narrated the prosecution story in his examination-in-
chief.
21. In his cross-examination, Mr. Patowary has stated that on 04.12.2015, when he
met the appellant for the first time, the appellant did not directly demand any money
from him. The appellant reportedly informed this witness that in order get the
"Assurance Letter", he would have to spend some money. This witness agreed to bear
the expenses. Accordingly, on 07.12.2015, Mr. Patowary paid ₹8,000/- to the appellant
for meeting the said expenses. The appellant accepted the said money and at that
time, a person called Jitu Talukdar was present there.
22. Mr. Patowary further stated that the appellant did not make any type of demand
for issuing the "Assurance Letter".
23. The informant was re-examined. At that time, he had reiterated that the
appellant demanded ₹38,000/- from him. He was also cross-examined by the defence
counsel. In his cross-examination, Mr. Patowary has stated that he had the prior
knowledge that whenever people ask for an "Assurance Letter", everyone paid
₹40,000/- in the said office. Mr. Patowary was inclined to pay the said money.
Therefore, he bargained the said price with the Joint Commissioner and the Joint
Commissioner, told him that he would tell the appellant to do the needful to that
effect.
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24. The fourth witness was Jitu Talukdar. At that time, he was working as a
cameraman for a T.V. channel. He has stated in his evidence that the informant Sushil
Patowary being a Senior Journalist, requested him to give him company on
04.12.2015 when he was going to the office of the Transport Commissioner. This
witness accompanied Mr. Patowary to the said office.
25. The witness Mr. Talukdar has further stated that the appellant told the informant
that an amount of ₹38,000/- will be required for issuing permit for a 42 Seater
Commercial Bus, which was intended to be used in Goalpara to Guwahati route. Mr.
Talukdar quoted the appellant as saying that he would have to share the said amount
of money with his superior officers.
26. The remaining part of his examination-in-chief is the narration of the prosecution
story.
27. In his cross-examination, Mr. Talukdar has stated that on 07.12.2015, Mr.
Patowary had paid the money to the appellant and while the appellant was counting
the money, he had signalled the waiting police team to step in. This witness has
stated that police caught the appellant red-handed.
28. The fifth prosecution witness is Binoy Kalita. He is a Journalist working with a
T.V. channel. He has stated in his evidence that on 07.12.2015, at about 1 P.M., he
was asked by the informant Sushil Patowary and the witness Jitu Talukdar to come to
the office of Vigilance & Anti-Corruption (V&A.C). He came to that office and learnt
that the appellant had demanded an amount of ₹38,000/-. Mr. Kalita has submitted
that police had laid a trap and he also accompanied the informant Sushil Patowary and
the witness Jitu Talukdar to the office of the Transport Commissioner. At the relevant
time of occurrence, this witness along with the other police officials were waiting
outside when Sushil Patowary and Jitu Talukdar had entered into the office. Mr. Kalita
had disclosed that Jitu Talukdar came out and gave them the signal. Accordingly, this
witness along with police officials stormed into the office and caught the appellant
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red-handed while the money paid by Sushil Patowary was still in the hands of the
appellant. Mr. Kalita stated that he had taken back the money from the hands of the
appellant.
29. In his cross-examination, the witness Mr. Kalita has stated that he did not notice
who handed over the cash amount of ₹8000/- to the appellant.
30. The sixth prosecution witness was Bipulanda Pathak. On the day of occurrence,
he was the Joint Commissioner of Transport in the office of the Commissioner of
Transport. He has stated in his evidence that on 07.12.2015 between 4 P.M. and 5
P.M., two persons came to his chamber and introduced themselves to be officials of
anti-corruption. They were also accompanied by some persons from the electronic
media. The police officers informed him that they have caught the appellant red-
handed while accepting bribe. According to this witness, police had seized 16 nos. of
500 rupee currency notes containing chemical signatures of the appellant.
31. In his cross-examination, Mr. Pathak stated that the seized amount of
₹7,000,00/- did not belong to his office. He quoted, the appellant as saying to him
that the said money belonged to the society of the employees of the office.
32. The seventh prosecution witness is Jitendra Chakraborty. At the relevant time of
occurrence, he was working as the Deputy Superintendent of Police in the Anti
Corruption Department. He narrated the entire prosecution story in his evidence-in-
chief.
33. In his cross-examination he has stated that he did not produce the official letter
by which the crack team was constituted. According to Mr. Chakraborty, the amount
of ₹8,000/- was first handed over to him by the informant at about 11.30 A.M. on
07.12.2015. He mixed small quantity of a chemical powder with the currency notes.
Mr. Chakraborty has disclosed that he did not accompany the police team who seized
the money from the appellant on 07.12.2015.
34. The eight prosecution witness is Kamal Chandra Rajbongshi. On the day of
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occurrence, he was working as an Inspector in the Anti Corruption Department. His
evidence-in-chief is the narration of the prosecution story.
35. In his cross-examination, he has stated that on 07.12.2015, he had accompanied
the police team to the place of occurrence. He has stated that when the shadow
witness signalled them, they all entered into the office and apprehended the appellant
red-handed.
36. The PW.9 is Dr. Rupali Bhattacharyya. She was the Scientific Officer at the
Forensic Science Laboratory. She has stated in her evidence that on 19.12.2015 police
sent one person through a special messenger to her office in connection with ACB P.S.
Case No.15/2015. The said parcel contained three sealed glass bottles having 180 ml.
each pink colour liquid and one sealed yellow envelope containing 16 nos. of 500
rupee currency notes.
37. The witness has stated that the liquids were examined and it was found that
they were phenolphthalein, sodium (Na+) ion, carbonate (Co 32-) ion and water (H2O).
38. In her cross-examination she has stated that she did not conduct quantitative
test rather she conducted qualitative test only.
39. The tenth prosecution witness is Pinaki Prasad Mitra. At that time he was the
Inspector of Police. He has stated in his evidence that on 07.12.2015, he was informed
by the Sri Karuna Bordoloi, the Dy. Superintendent of Police, Kamrup that a trap
team was constituted and he was made one of the members of the said team.
According to this witness, on that day at about 11 A.M. he along with the team
assembled in the office of V&AC, Assam and at that time, he came to know from the
Demonstrator Jiten Chakraborty that one Sushil Patowary had lodged the complaint on
that day alleging that on 04.12.2015, the present appellant demanded ₹38,000/- from
him for issuing "Assurance Letter".
40. According to the PW.10, when Jiten Chakraborty was telling him those things,
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two independent witnesses namely, Jitu Talukdar and Binoy Kalita were present. Sushil
Patowary gave this witness an amount of ₹8,000/- containing 500 rupee currency
notes for using the same to trap the appellant. He noted down the serial number of
the currency notes. In the meantime, Jiten Chakraborty had applied phenolphthalein
powder in the currency notes.
41. At about 4 P.M. on that day, Sushil Patowary entered into the office chamber of
the appellant. Jitu Talukdar had also followed him. This witness and other members of
the team were waiting outside the chamber of the appellant. The other independent
witness Binoy Kalita was also present there. At one point of time, Binoy Kalita
signalled the team waiting outside and all of them entered into the office chamber of
the appellant. The appellant was caught red-handed while accepting the bribe. Binoy
Kalita took away the money from the hands of the appellant and this witness tallied
the currency notes with the numbers which he had already recorded and found that
those were the currency notes that were taken from the hands of the appellant.
42. The PW.10 has stated in his cross-examination that in the month of December,
office hours was 9.15 A.M. to 4.15 P.M. When he and his team reached the office of
the appellant, it was about 4 to 4.30 P.M. but the office was very busy at that time.
43. The PW.11 is Sri Karuna Bordoloi, the Dy. Superintendent of Police, V&AC,
Assam. He has stated in his evidence that on 07.12.2015 at about 11.30 A.M., Sushil
Patowary lodged an FIR before the officer-in-charge of V&AC, Assam against the
present appellant alleging that for issuing one "Assurance Letter" of permit for
transport vehicle, he demanded ₹38,000/-. The ACB P.S. Case No.15/2015 was
registered on that day. This witness has stated that he constituted a trap team and
entrusted the Demonstrator Jiten Chakraborty to explain everything to the members of
the trap team. In the meantime, Jitu Talukdar was selected to be a shadow witness
and was asked to be with Sushil Patowary to witness the transaction with the
appellant. The independent witness Binoy Kalita was entrusted with the duty to
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monitor the activities of Jitu Talukdar.
44. This witness also accompanied the trap team. When the appellant accepted the
money, he was apprehended immediately. The appellant was directed to wash his
hand in water and the colour of the water turned pink because the currency notes
were treated with phenolphthalein.
45. In his cross-examination, this witness has stated that though Sushil Patowary
told him that the appellant wanted ₹38,000/-, he asked Sushil Patowary to pay
₹8,000/-. Accordingly, Sushil Patowary gave him a cash amount of ₹8,000/-.
Thereafter, phenolphthalein was put upon all the currency notes.
46. The PW.12 is Santosh Kumar Chaudhury. He was an ASI of Police with V&AC,
Assam. He was the member of the trap team led by Karuna Bordoloi. His evidence-in-
chief is similar to that of Karuna Bordoloi.
47. In his cross-examination he has stated that he had seen the Demonstrator
putting chemical powder upon all the 16 nos. of currency notes which were used to
trap the appellant. He has stated that he did not witness the transaction that took
place inside the chamber of the appellant. He only heard about that transaction.
48. The PW.13 is Derajuddin Ahmed. He was a constable of V&AC, Assam. He was
the member of the trap team. His evidence-in-chief is also similar to that of Karuna
Bordololi.
49. In his cross-examination he has stated that after reaching the office of the
Commissioner of Transport at Khanapara, he was waiting on the ground floor. He did
not remember in which floor the office of the appellant was situated. Other team
members head already towards the upper floors and he was asked to wait on the
ground floor. The other team members told him that whenever they will call him then
only he should come to the upper floor. The witness has stated that he was holding
the box containing the chemical kit. At one point of time, somebody called him to the
upper floors. At that time, it was about 5 P.M. The other employees of the office were
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not present in the chamber of the appellant.
50. The PW.14 is Rakesh Kumar. He has stated in his evidence that on 05.02.2018,
he was working as the Commissioner, Transport, Government of Assam. He has stated
that on 31.10.2017, the Superintendent of Police V&AC wrote a letter to the
Commissioner, Transport requesting him to accord prosecution sanction against the
present appellant for taking bribe. This witness has stated that he accorded
prosecution sanction.
51. In his cross-examination, he has stated that prosecution sanction was accorded
on the basis of the documents furnished by the investigating agency. He has stated
that he had examined all those materials before issuing the prosecution sanction
order.
52. The PW.15 is S.S. Badwal. On 22.06.2018, he was working as the Assistant
Director and Scientist in Central Forensic Science Laboratory, Urput, Kamrup, Assam.
On that day, he received a sealed envelope through proper channel. The said envelope
contained one USB Flash Drive. It contained a video. According to this witness, the
video was examined using UFED extraction device and physical analyser software. The
said USB file was examined by using other scientific methods. After examination, no
sign of editing was found in the said video file. This witness has stated that the audio
component of the video file could not be examined because of lack of facilities.
53. In his cross-examination, Mr. Badwal has reiterated that the audio component of
the video file could not be examined for lack of tools.
54. The PW.16 is Lakhi Narayan Baruah. He was the Investigating Officer of the
case. His evidence-in-chief is the narration of the entire prosecution story. He has
stated that after getting the prosecution sanction, he filed the charge sheet and the
additional charge sheet against the present appellant.
55. In his cross-examination, Mr. Baruah has stated that he never saw the appellant
accepting the tainted currency notes from the complainant.
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56. Sri Pradip Senapati is the first Defence Witness. He was a colleague of the
appellant in the office of the Commissioner of Transport. He has stated in his evidence
that whenever a new vehicle is purchased and the owner of the vehicle wanted the
vehicle to run on the road, he has to take permission from his office and for that the
owner has to pay official fees to get the permission. This witness has stated that on
07.12.2015, when the appellant was caught red-handed while taking money from the
complainant, he was present in the office. He has stated that he never saw the
appellant taking money. He had only heard about it. According to this witness, the
appellant did not have any jurisdiction to issue permit for a new commercial vehicle.
57. In his cross-examination he has stated that at the time of issuing such a permit,
the necessary file rolls over many tables including that of the appellant also. The
appellant was duty bound to transfer the file to the Superintendent. If the file was not
produced before the Superintendent, no permission would be granted.
58. The second defence witness is Guptajit Das. He was also a colleague of the
appellant in his office. His office is in the first floor in the building and the chamber of
the appellant is situated in the second floor. The witness Mr. Das has stated that he
had heard about the said incident. He also reiterated that for issuing permit for
commercial vehicle, the owner of the vehicle has to deposit fees in the office.
59. In his cross-examination, he has stated that the appellant was dealing with the
files which contained applications for issuing permit.
60. The learned counsel Mr. Mahajan has submitted that the fact that the appellant
had ever demanded money from Sushil Patowary was never proved in the trial court.
In order to buttress his argument, Mr. Mahajan has relied upon Neeraj Dutta v. State
(NCT of Delhi), (2023) 4 SCC 731 where the Hon'ble Supreme Court has held as under:
"88. What emerges from the aforesaid discussion is summarised as under:
88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as
a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the
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accused public servant under Sections 7 and 13(1)( d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first
prove the demand of illegal gratification and the subsequent acceptance as a matter of
fact. This fact in issue can be proved either by direct evidence which can be in the
nature of oral evidence or documentary evidence.
88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of
illegal gratification can also be proved by circumstantial evidence in the absence of
direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of
illegal gratification by the public servant, the following aspects have to be borne in
mind:
(i) if there is an offer to pay by the bribe-giver without there being any demand
from the public servant and the latter simply accepts the offer and receives the
illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a
case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe-giver
accepts the demand and tenders the demanded gratification which in turn is
received by the public servant, it is a case of obtainment. In the case of
obtainment, the prior demand for illegal gratification emanates from the public
servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand
by the public servant respectively have to be proved by the prosecution as a fact in
issue. In other words, mere acceptance or receipt of an illegal gratification without
anything more would not make it an offence under Section 7 or Sections 13(1)( d)(i)
and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to
bring home the offence, there must be an offer which emanates from the bribe-
giver which is accepted by the public servant which would make it an offence.
Similarly, a prior demand by the public servant when accepted by the bribe-giver
and in turn there is a payment made which is received by the public servant, would
be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.
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88.5. (e) The presumption of fact with regard to the demand and acceptance or
obtainment of an illegal gratification may be made by a court of law by way of an
inference only when the foundational facts have been proved by relevant oral and
documentary evidence and not in the absence thereof. On the basis of the material on
record, the court has the discretion to raise a presumption of fact while considering
whether the fact of demand has been proved by the prosecution or not. Of course, a
presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal
presumption stands.
88.8. (h) We clarify that the presumption in law under Section 20 of the Act is
distinct from presumption of fact referred to above in sub-para 88.5( e), above, as the
former is a mandatory presumption while the latter is discretionary in nature."
61. I have considered the submissions of learned counsel of both sides.
62. It is a settled position of law that demand for illegal gratification is sine qua non
for establishing an offence under Section 7 of the Prevention of Corruption Act, 1988
[See (2022) 4 SCC 574]. It is established in this case that the appellant had accepted
a cash amount of ₹8,000/- from Sushil Patowary. But except the evidence of Sushil
Patowary, there is no other evidence to support the fact that the appellant had ever
demanded an amount of ₹38,000/- from him for issuing permit. Whenever a
Government official accepts cash amount from an individual, the presumption under
Section 20 of the Prevention of Corruption Act cannot rise unless foundational facts
are proved by reliable evidence. There is no evidence to support the allegation of
Sushil Patowary that the appellant had demanded illegal gratification of ₹38,000/-. If
₹38,000/- was demanded, then why the appellant accepted ₹8,000/- only. No
explanation has been given by prosecution.
63. There is no evidence in this case to prove the reason as to why the appellant
accepted ₹8,000/- in cash from Sushil Patowary instead of ₹38,000/-. There is no
evidence at all in this case to prove that the appellant ever demanded bribe of
₹38,000/-. The evidence of Sushil Patowary cannot be held to be sacrosanct unless it
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is supported by reliable evidence.
64. For the aforesaid premised reasons, the judgment of the trial court requires to
be interfered with. The offences under Sections 7 and 13(2) of the Prevention of
Corruption Act, 1988 are not proved beyond all reasonable doubt against the
appellant.
65. The appeal is allowed. The judgment and order dated 16.08.2022 passed by the
learned Special Judge, Assam in Special Case No.11/2018 is set aside.
66. The appellant Debeswar Talukdar is found not guilty and he is acquitted from
this case.
The criminal appeal is disposed of accordingly.
Send back the LCR.
JUDGE
Comparing Assistant
