Rubul Gogoi vs The State of Assam

The Crl.A. 187/2011 and Crl.A. 214/2011 are taken up together as both of these appeals arose out of the judgment, dated 28.10.2011,

passed by the learned Special Judge, Assam, Guwahati in Special Case No. 4/2008.

Vide the said judgment, the learned trial court of Special Judge, Assam, Guwahati, convicted the accused-appellant Sri Rubul Gogoi of Crl.A.

187/2011 to rigorous imprisonment for 3 years and 6 months and to pay a fine of Rs. 25,000/- with a default clause for commission of offence

under Section 7 of the Prevention of Corruption Act (hereinafter referred to as PC Act) and also convicted the accused-appellant Sri Pranab Jyoti

Bhorali, in Crl.A. 214/2011, to rigorous imprisonment for 3 months and to pay a fine of Rs. 2,000/- with a default clause under Section 12 of the

PC Act in Special Case No. 4/2008.

None appears for the appellant in Crl.A. 187/2011. Mr. T.J. Mahanta, learned Senior counsel appears for the accused-appellant in Crl.A.

214/2011. In both the appeals, state respondent is represented by learned Additional Public Prosecutor Mr. N.K. Kalita.

In respect of Crl.A. 214/2011, I have heard learned senior counsel for the appellant Mr. T.J. Mahanta and for both the appeals I have heard

learned Additional Public Prosecutor Mr. N.K. Kalita, for the state respondent.

As none appears for the appellant in Crl.A. 187/2011, this court proposes to dispose of the appeal on merit on perusal of the trial court court''s

record as well as the impugned judgment including the evidence on record.

The fact leading to the case is that, on 28.3.2011, Mr. G.M. Hazarika, Additional Deputy Commissioner, Sivasagar, lodged an FIR with the

Sivasagar Police Station, alleging therein that on receipt of reliable information, as to corrupt practices indulged in passing nilbill of school teachers,

Executive Magistrate, Sri Ankur Bhorali was asked to keep vigil in the bill scrutiny room of the Office of the Deputy Commissioner, Sivasagar. At

about 3:30 pm, the accused-appellant Sri Rubul Gogoi, Audit Officer, Local Fund, was caught red-handed while receiving illegal gratification of

Rs. 1,000/- from Assistant Teacher of Kalugaon Girls ME School, Sri Pranab Jyoti Bhorali.

On receipt of such information, Sivasagar Police Station registered a case, being No. 79/2001, investigated into it, and after completion of the

investigation, laid charge-sheet against the accused-appellants of both the aforesaid appeals. During investigation, the accused-appellants were

arrested and they were sent to judicial custody.

After exhausting all the required legal formalities, charge was framed against the accused-appellant Sri Rubul Gogoi, under Section 7 of the PC

Act and against-accusedappellant Sri Pranab Jyoti Bhorali under Section 12 of the said Act.

The prosecution examined as many as 8 (eight) witnesses. 4 (four) witnesses were examined by court as court witnesses.

After closure of the prosecution evidence, statements of both the accused-appellants were recorded under Section 313 of the Cr.PC and in

their such statements, they were heard denying the allegations made against them.

Now, on the basis of the allegations as well as the evidence on record, this court is called upon to decide whether accused-appellant Sri Rubul

Gogoi, being the Audit Officer of the Local Fund, Sivasagar, accepted illegal gratification of Rs. 1,000/- from accused-appellant Sri Pranab Jyoti

Bhorali for passing his arrear bill and thereby committed an offence under Section 7 of the PC Act, and, whether accused-appellant Sri Pranab

Jyoti Bhorali, being Assistant Teacher, abetted the Audit Officer/appellant Rubul Gogoi, to receive illegal gratification of Rs. 1,000/- as reward for

passing his arrear nil-bill and thereby committed an offence punishable under Section 12 of the PC Act.

I have meticulously examined the evidence on record.

The evidence of PW1, who was an Extra Assistant Commissioner in the Office of the Deputy Commissioner, Sivasagar, is heard saying in his

evidence that at the instance of Additional Deputy Commissioner, Sri G.M. Hazarika, he was keeping vigil on accused-appellant Sri Rubul Gogoi

as there was an allegation of taking gratification by him for passing nil-bill of teachers. While keeping vigil, he found the accused-appellant Sri

Pranab Jyoti Bhorali paid an amount of Rs. 1,000/- in 10 rupee denomination notes for favouring him with passing of his arrear nil-bill. He caught

accused-appellant Rubul Gogoi red-handed. The accused-appellant Rubul Gogoi confessed before him and prayed for mercy. Thereafter, he took

both the accused appellants to the aforesaid Additional Deputy Commissioner, Sri G.M. Hazarika, who is examined by the prosecution as PW3,

and thereafter, police arrived at the place and the bundle of currency notes was seized from the possession of the accused-appellant Rubul Gogoi.

The FIR was lodged by PW3 vide Ext.1.

The evidence of PW3 makes it appear that the accused-appellant Pranab Jyoti Bhorali gave the amount of Rs. 1,000/- to the accused-

appellant Rubul Gogoi for passing his bills, and at that point of time, he was caught red-handed by PW1.

The evidence of PW6, who is the investigating officer of the case, shows that the money which is claimed to have been used in gratification was

seized on being produced by PW3 and not from the possession of the accused-appellant Rubul Gogoi meaning thereby that the seized money

which was allegedly given as bribe by the accused-appellant Pranab Jyoti Bhorali to the accused-appellant Rubul Gogoi was not seized from the

possession of the accused-appellant Rubul Gogoi, and rather, it was seized from the possession of PW3, Sri G.M. Hazarika.

On meticulous examination of the evidence of all the witnesses, it does not appear that there is any evidence of demand of gratification by the

accused-appellant Rubul Gogoi and acceptance thereof has also not been proved, as indicated above.

The learned counsel for the appellant has referred to the decision of the Hon''ble Supreme Court in the case of V.Sejappa -vs- State by police

Inspector Lokayukta, Chitradurga, reported in (2016) 12 SCC 150, particularly, paragraph-10 and 18 thereof. Both the paragraphs of the

aforesaid decision are quoted below for proper understanding of the matter at hand.

Para 10 In order to constitute an offence under Section 7 of the Prevention of Corruption Act, ''proof of demand'' is a sine quo non. This has

been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55, wherein

this Court held as under:-

Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute

the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt

that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of

this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P.(2010) 15 SCC 1 and C.M. Girish Babu

v. CBI (2009) 3 SCC 779.

Para 18 It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon

the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the

prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of

Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of

money was not enough to draw the presumption under Section 20 of the Act.

The Hon''ble Supreme Court has categorically laid down that it is a settled position of law that demand of illegal gratification is sine qua non to

constitute the offence under Section 7 of the PC Act and mere recovery of currency notes cannot constitute offence under Section 7 of the PC Act

unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money as gratification. The Hon''ble Supreme Court

further held in the said decision that it is the burden of the prosecution to prove that the accused accepted or obtained the amount other than legal

remuneration.

In view of the above position, settled by the Hon''ble Supreme Court, it is the burden upon the prosecution to establish that the gratification

was demanded and accepted by the accused-appellant, which burden the prosecution has not been able to discharge in the instant case as the

person from whom the gratification was demanded also faced the trial in the same case and in his statement under 313 of the Cr.PC he is heard

denying the allegations of gratification by him to the accused-appellant Rubul Gogoi. Since, such statement is made by the accused-appellant

Pranab Jyoti Bhorali under Section 313 of the Cr.PC, this court visited the entire evidence on record to find out whether there is any evidence led

by the prosecution as to the gratification alleged by the prosecution, its demand and acceptance. But, none of the witnesses are found leading

evidence to the effect that they saw the accused-appellant Rubul Gogoi demanding and accepting or obtaining gratification from the

accusedappellant Pranab Jyoti Bhorali. Therefore, the prosecution failed to discharge its initial burden regarding demand and acceptance of illegal

gratification and consequently failed to prove the offence against the accused-appellant Rubul Gogoi under Section 7 of the PC Act.

This being the position in respect of the accused-appellant Rubul Gogoi, the question of abating the offence under Section 7 of the PC Act by

the accused-appellant Pranab Jyoti Bhorali to rope him in for commission of an offence under Section 12 of the said Act cannot be said to have

been proved by the prosecution because Section 12 of the PC Act provides punishment for abetment of an offence defined under Sections 7 and

11 of the said Act. When the accusation under Section 7 of the PC Ac fails, the accusation in respect of the coaccused for abetting such offence

also fails.

In view of the above discussions on the evidence on record, and the findings recorded during the discussions coupled with the decisions of the

Hon''ble Supreme Court, referred to above, this court has no hesitation to hold that the judgment of the learned trial court, convicting both the

accused-appellant, is not based on evidence on record necessitating interference by this court.

In view of the above, both the appeals are allowed and the judgment of the learned trial court of Special Judge, Assam, Guwahati, passed in

Special Case No. 4/2008, dated 28.10.2011, is set aside.

Send down the LCR along with a copy of this judgment.