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GAUHATI HIGH COURT
C.R. Sarma, J.
Amiyo Kumar Borah - Appellant
Versus
Central Bureau of Investigation - Respondent
Crl. A. No. 125 of 2013
Decided On : 26-02-2016
For the Appellants :D.K. Mishra, Sr. Advocate, B.M. Choudhury, U. Choudhury, M.S. Sundi and D.K. Kalita, Advocates.
For the Respondent:P.N. Choudhury, Sr. Retainer Advocate, CBI.
Headnote:
PC Act - Section 13(1)(d)- Indian Penal Code,1860 - Sections 468, 420/ 511, 420/468 - Prevention of Corruption Act, 1998 - Section 13(2) read with Section 13(I)(d) – Criminal Procedure Code,1973 - Section 313 - Cheating and dishonesty – Appeal against convicted – Examinatin of accused - Appeal is against judgment and order passed by learned Special Judge, CBI, Addl. CBI Court No. II, in Special Case - Judge convicted and sentenced appellant to suffer simple imprisonment of 3 years and pay fine of for his conviction under Section 468 of Indian Penal Code, simple imprisonment for 1 year and pay fine of R for his conviction under Sections 420/ 511 IPC and in default suffer simple imprisonment for 1 month, on each count - Appellant has also been sentenced to suffer simple imprisonment for 1 year and pay fine of for his conviction under Section 13(2) read with Section 13(I)(d) of Prevention of Corruption Act - It has also been directed that all the sentences shall run concurrently - Chairman of Railway Recruitment Board, NF Railway entered into a criminal conspiracy with some candidates and released a list of 165 candidates declaring candidates to have qualified in written test and eligible for appearing in Typing Test against employment notice No. for category - Appellant receipt of computerised list from evaluator i.e. computer farm – Held, Lawful source and such receipt has been intimated in accordance provisions of any law, rules or orders for time being applicable to a public servant - Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but may extend to seven years and shall also be liable to fine - Court held that for offence under Section 5(1)(d), read with Section 5(2) of PC Act, prosecution has to prove that accused obtained valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant - Careful reading of Section 13(1)(d),(i)(ii) and (iii) leads to understand that to hold a person guilty of said offence, it must be proved that he obtained any valuable thing or pecuniary advantages either by corrupt or illegal means or by abusing his official position - In present case, there is no legal evidence to show appellant had either obtained any valuable thing or took any pecuniary advantage, illegally or by abusing his position - Court observed that primary requisite for consisting an offence under Section 13(1)(d) of PC Act, is proof of demand or request of a valuable thing or pecuniary advantag offence under Section 13(1)(d) of P.C. Act cannot be held to be established been Court am inclined to hold that prosecution failed to prove - Appellant with fraudulent and dishonest intention with a cheat NF Railway had inserted handwritten roll numbers in Ext. 2 i.e. Ext. 2(1) to 2(19) and falsely prepared the Ext. 1 - Provided by Section 20 of PC Act, no presumption can be drawn in respect of offence under Section 13(1)(d) of PC Act - Appeal is allowed
C.R. Sarma, J.
The challenge made by the appellant in this appeal is against the judgment and order dated 30.3.2013, passed by the learned Special Judge, CBI, Assam, Addl. CBI Court No. II, Chandmari, Guwahati in Special Case No. 166/2004.
2. By the impugned judgment and order, the learned Special Judge convicted and sentenced the appellant to suffer simple imprisonment of 3 (three) years and pay fine of Rs. 1,000.00 for his conviction under Section 468 of the Indian Penal Code (hereinafter referred to as the IPC), simple imprisonment for 1 (one) year and pay fine of Rs. 1,000.00 for his conviction under Sections 420/ 511 IPC and in default suffer simple imprisonment for 1 (one) month, on each count. The appellant has also been sentenced to suffer simple imprisonment for 1 (one) year and pay fine of Rs. 1,000.00 for his conviction under Section 13(2) read with Section 13(I)(d) of the Prevention of Corruption Act, 1998 (herein after referred called the P.C. Act). It has also been directed that all the sentences shall run concurrently.
3. The prosecution case, as may be necessary for the purpose of disposal of this appeal, may, in brief, be stated as follows:
The appellant, namely, Sri Amiya Kumar Bora, while functioning as the Chairman of the Railway Recruitment Board, NF Railway (for short, RRB), Guwahati, during the period 1997-98, entered into a criminal conspiracy with some candidates and released a list of 165 candidates declaring the said candidates to have qualified in the written test and eligible for appearing in Typing Test against the employment notice No. 1/1996 for the category of "Junior Accounts Assistant". According to the prosecution, the appellant after receipt of the computerised list from the evaluator i.e. the computer farm, while decoding the merit list, instead of entering the roll numbers of the qualified candidates against the respective code numbers, fraudulently entered the roll numbers of unsuccessful candidates and thus, published a provisional merit list of candidates qualified in the written examination, thereby showing some unsuccessful candidates as qualified candidates and not including the roll numbers of some successful candidates in the said merit list.
4. In the said process the appellant, for showing undue favour to the said candidates omitted the names of 48 successful candidates and included, in the merit list, the names of 46 unsuccessful candidates by abusing his official position.
5. The matter was referred to the CBI for investigation. Accordingly, the CBI registered a case, being R.C. 24(A)/2002 under Section 420/511 IPC and Section 13 read with Section 13(1)(d) of the PC Act and launched investigation into the matter.
6. During investigation, the Investigating Officer (I.O.) recorded the statement of the witnesses, collected relevant documents from the office of the RRB and at the close of the investigation submitted charge sheet against the appellant for the offences, under Sections 420/511 IPC and Section 13(2) read with Section 13(1)(d) of the PC Act.
7. On receipt of the charge sheet, the learned Special Judge, CBI, Guwahati, after hearing the learned counsel for both the parties, framed charges under Sections 420/468 IPC and Section 13(2) read with Section 13(1)(d) of the PC Act. The charge was read over and explained to the accused person, to which he pleaded not guilty and claimed to be tried.
8. In order to prove its case, the prosecution examined as many as 19 witnesses and exhibited various documents in support of the prosecution case. The defence cross-examined the prosecution witnesses. The defence plea was a denial one.
9. At the close of the examination of the prosecution witnesses, the accused person was examined under Section 313 Cr.P.C. He denied the allegations, brought against him and declined to adduce defence evidence.
10. The learned trial Judge framed the following points for determination:-
(1) Whether during the period between 1997-98, the accused Sri Amiyo K
