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IN THE COURT OF SPECIAL JUDGE, ASSAM, GUWAHATI

Present : Sri G. Baruah, AJS,

Special Judge, Assam,

Guwahati.

SPECIAL CASE NO. 29(A)/2001.

(Arising out of SVC P.S. Case No.2/1999)

U/S.120(B)/420/468/471 IPC and U/S.13(1)(c)/13(2) of Prevention of Corruption Act, 1988.

STATE OF ASSAM

VS.

(1) Jogen Bora@ Jogendra Bora

(2) Sri Kamala Sarma.

(3) Smti. Deepika Devi.

(4)Sri Jogeswar Barpatragohain,

Accused Persons.

Date of hearing : 23.8.2004, 27.9.2004, 18.12.2004, 9.3.2005, 6.4.2005, 16.5.2005, 15.6.2005, 18.7,2005, 18.8.2005, 19.9.2005, 28.10.2005, 01.12.2005, 03.01.2006, 8.2.2006, 13.4.2006, 12.1.2007, 6.3.2007, 17.11.2008, 16.7.2009, 18.11.2011, 15.12.2011, 15.12.2011, 20.12.2011 .

Date of statement of accused :20.6.2006, 26.7.2006, 10.8.2006,19.12.2018, 7.01.2019, 05.2.2019, 06.4.2019.

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Date of argument : 03.05.2019.

Date of Judgment : 14.5.2019.

Result : Acquittal.

Advocate for prosecution : Sri M. Haloi, Learned P.P.

Smti. N. Gogoi, Ld. Addl. P.P. .

Advocate for accused : Sri Z.Kamar, Ld. Advocate.

Sri Z. Alam, Ld Advocate.

Sri N.J. Das, Ld. Advocate.

J U D G M E N T

1. The prosecution case started with the lodging of an F.I.R.

by Sri Jagadish Sarmah, Inspector of Police, Vigilance Police Station,

Assam on 24.3.1999 before the Officer-in-Charge, Vigilance Police

Station . In the F.I.R. the informant submitted that he has conducted an

enquiry being Inquiry No.SVC E No.2/1997 against Sri Kamala Sarmah,

Office Assistant in the office of S.I. of Schools, Jonai, Sri Khagen Deori,

UDA, Siba Dutta, UDA, Sri Tarini Gogoi, LDA, Sri Jogen Borah, S.I. of

School under Dhemaji Sub-Division and a police officer namely Medhi of

Dispur Police Station on receipt of allegation through the Chief Minister’s

Office which was originally submitted by one Sri Kirti Kamal Gogoi,

Secretary,Assam Primary/Middle Schools Co-ordination Committee

under Dhemaji district.

2. In the F.I.R. the informant submitted that in the year

1989, hundreds of L.P. School teachers were illegally appointed by the

then S.I. of Schools, Dhemaji Sub-Division against non existent posts

without following departmental norms and procedure and the service of

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such illegally appointed teachers were later terminated by the

Government. It is submitted that most of the terminated teachers

approached the Hon’ble Gauhati High Court and the Hon’ble Gauhati

High Court upheld the decision of the State Government to terminate

the illegally appointed teachers but at the same time the Hon’ble

Gauhati High Court passed order directing the State Government to pay

salaries to the terminated teachers for the period they actually remained

present in their respective schools. In the FIR the informant also

submitted that during enquiry he found that in pursuance to the order of

the Hon’ble Gauhati High Court to pay salary to the terminated teachers

of Dhemaji for the period they actually served as teachers, a total

amount of Rs. 3,73,80,396/- (Rupees Three Crores seventy three lacs

eighty thousand three hundred ninety six) only were sanctioned by the

Government of Assam vide Govt. Letter No. EAA 18/87/596 dated

29.3.1994 and Govt. Letter No. ELC/94-95/26-A dated 23.3.1995 on the

basis of datas furnished by the Block Elementary Education Officers

(BEEOs) of Dhemaji and Dhakuakhana Sub-Division. The petitioner

submitted that after payment of due salaries to a total of 280 nos of

terminated teachers by cheques, an amount of Rs.84,92,802/- (Rupees

Eighty four lacs ninety two thousand eight hundred two) only remained

in Bank as excess amount. The informant submitted that the FIR named

accused persons who were employees of D.I. Office had entered into

criminal conspiracy to misappropriate a portion of the excess amount

which was lying in the Bank by drawing salaries against some non

existent teachers.

3. The informant in the F.I.R. submitted that in order to

misappropriate the part of the above excess money the FIR named

accused persons prepared a list of 20 persons who were relatives,

neighbours, sons/daughters of Sri Kamala Sarmah and UDA Khagen

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Deori and submitted affidavits before the Hon’ble Gauhati High Court

claiming that they were appointed as teachers in the year 1989 and

were terminated in 1992, and by submitting false documents in CR Case

No.2223/95 mislead the Hon’ble Gauhati High Court in believing that

the petitioners of CR Case No.2223/95 were genuine terminated

teachers like that of other petitioners of CR cases which were disposed

off by the Court. The informant also submitted that the Hon’ble Gauhati

High Court on 5.6.1995 passed an order for payment of salary to 20 nos.

of petitioners with a direction that “ Director Elementary Education,

Assam would examine the matter and if the averments made in the

petition are found correct, the petitioners shall be paid their pay and

allowances for the period served within a period of two months”.

4. The informant submitted that the FIR named accused

persons collected a copy of the said order of the Hon’ble Gauhati High

Court directly from the Court without the knowledge of the Director,

Elementary Education, Assam, Guwahati and added ten more fictitious

names of these teachers by typing the same in the vacant space along

with the Hon’ble High Court order and thereby increasing the number of

terminated teachers to thirty. The informant submitted that on the basis

of the above noted Court order obtained fraudulently and later on

tampered with, S.I. Jogen Bora of D.I. of School, Dhemaji issued 30

(thirty) nos. of cheques against 30 (thirty) so-called terminated

teachers and drew an amount of Rs.14,78,820/- (Rupees fourteen lacs

seventy eight thousand eight hundred twenty) only from Dhemaji

Branch of United Bank of India. He submitted cheques for an amount of

total of Rs.49,294/- each (Rupees forty nine thousand two hundred

ninety four) only were issued in favour of 30 (thirty) persons (total

amounting to Rs. 14,78,820) /- (Rupees fourteen lacs seventy eight

thousand eight hundred twenty) only who never worked as L.P. School

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teacher in Dhemaji district between 1989 to 1992, such as Rajesh

Sarma, Rotneswar Doley, Chandan Sarma, Manoj Sarma, Prasanta

Chetia, Lakhi Gohain, Smti. Kabita Gogoi, Smti. Kumari Pegu, Smti

Niroda Devi, Smti. Santana Changmai, Sri Pradip Chetia, Sri Deba Kanta

Sonowal, Sri Pabitra Sonowal, Sri Lukumoni Chetia, Sari Ramen Dutta,

Smti. Dipika Devi, Smti. Annapurna Devi, Sri Anupam Deori, Smti Manika

Deori, Sri Ripunjay Deori, Sri Deba Sarmah, Sri Nipen Deori, Sri Lila

Kanta Chutia, Sri Kalia Deori, Sri Ashok Sarmah, Sri Mintu Deori, Sri

Deben Dutta, Sri Krishna Sharma, Sri Gudunga Deori and Sri Gobin

Changmai.

5. In the FIR the informant also stated that one Jogeswar

Barpatra Gohain of village Verpara of P.S. Dhemaji had identified most

of the above named fake school teachers as genuine before the Bank

Manager of United Bank of India, Dhemaji Branch and facilitated

fraudulent withdrawal of lakhs of rupees of the Government with active

cooperation of Jogen Bora, Khagen Deori, Kamala Sarma and Mohendra

Gogoi.

6. The informant submitted that during enquiry he has found

sufficient prima facie materials regarding misappropriation of Govt.

money totaling Rs.14,78,820/- (Rupees fourteen lacs seventy eight

thousand eight hundred twenty) only by committing offences like

impersonation, furnishing of false documents, tampering of Court’s

order, misappropriation of Govt. money etc. against accused persons

(1) Sri Kamala Sharma, Office Assistant of the office of S.I.of School,

Jonai, (2) Sri Khagen Deori, U.D.A, D.I.’s office, Dhemaji, (3) Sri Jogen

Bora, the then S.I. of School, Dhemaji, (4) Sri Mehendra Gogoi, S.I. of

School, Dhemaji, (5) Sri Udayaditya Phukan, UDA, D.I. office, Dhemaji,

(6) Smti Dipika Devi, wife of Sri Kamala Sharma and (7) Sri Jogneswar

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Barpatra Gohain. The informant accordingly prayed to register a case

against the above named-accused persons under proper provisions of

law and to take necessary action.

7. On receipt of the said F.I.R., the Officer-in-Charge,

Vigilance Police Station registered Vigilance P.S. Case No.2/1999 U/S.

120B/420/468/471/408/409 IPC read with Sec.13(2) of P.C. Act, 1988.

The police during the course of investigation had visited the place of

occurrence, recorded the statement of several witnesses, arrested the

accused persons, seized several documents, collected FSL report and

after completion of investigation had submitted Charge sheet against

accused (1) Sri Jogen @ Jogendra Bora , the then D.I. of Schools,

Dhemaji, (2) Sri Khagen Deori, U.D.A. of D.I.’s office, Dhemaji, (3) Sri

Kamala Sharma, UDA, Office of the S.I. of Schools, Jonai, (4) Smti

Dipika Devi, wife of Sri Kamala Sharma, L.P. School teacher of Leluoni

L.P. School, Dhemaji, (5) Sri Mehendra Gogoi, S.I. of School, Dhemaji,

(6) Sri Udayaditya Phukan, UDA, D.I. office, Dhemaji and (7) Sri

Jogneswar Barpatra Gohain of village Verpara

U/S.120B/420/468/471/409 IPC read with Sec.13(2) of P.C. Act, 1988.

The investigating officer also submitted prosecution sanction order

against accused Sri Jogen @ Jogendra Bora, Sri Khagen Deori, Sri

Kamala Sharma, Sri Udayaditya Phukan and Smti. Dipika Devi. The

investigating officer has not submitted Charge sheet against accused Sri

Siba Dutta, Sri Tarini Gogoi and Sri Naren Medhi as no evidence were

found against them.

8. After submission of the Charge sheet by the investigating

officer, cognizance of offences were taken against the accused persons

U/S.120B/420/468/471/409 IPC read with Sec.13(2) of PC Act, 1988 and

summons were issued for their appearance before the Court. In course

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of time accused Jogen @ Jogendra Bora, Sri Khagen Deori, Sri Kamala

Sharma, Smti. Dipika Devi, Mohendra Gogoi and Jogeswar Barpatra

Gohain appeared before this Court and they were allowed to go on bail.

9. Accused Udayaditya Phukan expired at the stage of

appearance and as such the case was abated against him vide order

dated 31.8.2002.

10. Copies were supplied to the accused persons as per

provisions of Sec.207 Cr.P.C. The learned counsels for the accused

persons as well as the learned P.P. for the State were heard. My learned

predecessor after going through the case record and after hearing the

learned counsels of both sides had framed charges against accuseds Sri

Jogen @ Jogendra Bora, Sri Khagen Deori, Sri Kamala Sharma, Smti

Dipika Devi and Mohendra Gogoi U/S.409 IPC and U/S.13(2) read with

Section 13(1)(c) of P.C. Act. My learned predecessor also framed

charges against accused Jogen @ Jogendra Bora, Sri Kamala Sharma,

Khagen Deori, Smti Dipika Devi , Mohendra Gogoi and Jogeswar

Barpatra Gohain U/S.120B/420/468/471 IPC. On being read over and

explained all the accused persons pleaded not guilty and claimed to be

tried.

11. During the course of trial accused Khagen Deori and

Mohendra Gogoi had expired and the case against accused Khagen

Deori was abated vide order dated 3.7.2018 and the case against

accused Mohendra Gogoi was abated vide order dated 26.11.2018.

12. During trial the case against accused Smti. Dipika Devi was

split up vide order dated 9.3.2009 due to her mental illness. Record

reveals that thereafter periodical report regarding her mental condition

was obtained from the office of the Joint Director, Health Services,

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Dhemaji . Perusal of record also reflects that my learned predecessor in

his order dated 1.12.2016 observed that “accused Smti. Dipika Devi has

improved after her treatment in the Department of Psychiatric at

Assam Medical College & Hospital at Dibrugarh and she is fit to stand

trial “ and thereafter vide order dated 21.7.2017 the split up case in

respect of accused Smti. Dipika Devi was tagged with the main record.

13. From the above, it appears that at present accused Jogen

@ Jogendra Bora, Sri Kamala Sarmah, Sri Jogeswar Barpatra Gohain

and Smti. Dipika Devi are facing the trial.

14. Prosecution in order to bring home charges against the

accused persons has examined altogether 31 (thirty one) nos. of

witnesses including the informant, the FSL Expert, seizure witnesses

and the I.O’s. Court also examined one court witness.

15. The 313 Cr.P.C. statement of the accused persons were

recorded. Accused Sri Kamala Sharma in his 313 Cr.P.C. statement

denied all the allegations and submitted that at the time of alleged

offence i.e. between 5.6.1995 to 8.6.1995 he was working as an UDA in

the office of S.I. of Schools, Jonai which is far away from the place of

occurrence at Dhemaji. He submitted that he would adduce defence

evidence in support of his defence. Accused Jogen @ Jogendra Bora in

his 313 Cr.P.C. statement submitted that all documents for payment

were prepared by the concerned Headmaster of the school and are

submitted to the concerned S.I. of Schools and after verification of

records of teacher like Appointment Letter, joining report etc. are

submitted to the Block Elementary Education Officer (BEEO) and then

the Block Elementary Education Officer (BEEO) submits the relevant

record from S.I. of Schools with his comments for preparation of

cheques to the Accountant of D.I. of Schools. The accused claimed

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that he is innocence, and he also desired to adduce defence evidence.

Accused Jogeswar Barpatra Gohain and Smti Dipika Devi have claimed

their innocence in their 313 Cr.P.C. statement and they have declined to

adduce defence evidence.

16. The accused persons adduced 5 nos. of D.W’s. in their

defence.

17. I have heard the argument put forwarded by the learned

Special P.P. for the State as well as by the learned defence counsels. I

have carefully perused the entire record and the evidence brought into

record by both the parties, both oral and documentary. I have carefully

analyzed all the materials which are available before this Court.

POINTS FOR DETERMINATION

(1) Whether during the period from 1989 to 1992 accused Jogen

@ Jogendra Bora , D.I. of Schools, Dhemaji, Sri Kamala

Sharma, UDA, Office of the S.I. of Schools, Jonai, Sri

Jogenswar Barpatra Gohain and Smti Dipika Devi, wife of Sri

Kamala Sharma entered into criminal conspiracy and

fraudulently shown 30 (thirty) nos. of fictitious persons as

terminated school teachers for misappropriating a total

amount of Rs.14,78,820/- (Rupees fourteen lacs seventy

eight thousand eight hundred twenty) only and thereby

committed an offence punishable U/S.120B IPC ?

(2) Whether during the said period the above named accused

persons cheated the Government by dishonestly inducing to

deliver a total sum of Rs.14,78,820/- (Rupees fourteen lacs

seventy eight thousand eight hundred twenty) only as salary

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for the 30 nos. of fictitious terminated teachers and thereby

committed an offence punishable U/S.420 IPC ?

(3) Whether during the said period the accused persons forged

order of the Hon’ble Gauhati High Court, prepared false

appointment letters , Education Certificates etc. for the

purpose of cheating and thereby committed an offence

punishable U/S.468 IPC ?

(4) Whether during the said period the above named-accused

persons fraudulently and dishonestly used the forged

documents as genuine and thereby committed an offence

punishable U/S.471 IPC ?

(5) Whether during the said period accused Jogen @ Jogendra

Bora and Kamala Sharma being public servants entrusted

with an amount of Rs.14,78,820/- (Rupees fourteen lacs

seventy eight thousand eight hundred twenty) only against

the salaries of fictitious terminated school teachers and

committed criminal breach of trust by misappropriating the

said amount which is punishable U/S.409 IPC ?

(6) Whether accused Jogen @ Jogendra Bora and Sri Kamala

Sharma during the said period working as public servants in

the office of D.I. of Schools, fraudulently misappropriated

an amount of Rs.14,78,820/- (Rupees fourteen lacs seventy

eight thousand eight hundred twenty) only against the salary

of 30 nos. of fictitious terminated teachers and converted the

same to their own use or to the use of others and thereby

committed criminal misconduct which is punishable U/S.13(2)

read with Section 13(1)(c) of P.C. Act, 1988 ?

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FACTS AS WELL AS MATERIALS BROUGHT INTO THE RECORD

18. Prosecution has examined all together 31 nos. of

witnesses in this case in support of its case.

19. P.W.1 Sri Rajani Phukan deposed that he joined in the

office of D.I. of Schools, Dhemaji in the year 1994 as Statistical Assistant

and his duty was to look after the number of teachers and students. He

deposed that police had seized 6 nos. of documents from him vide

Seizure list (Ext.1). He identified his signature as Ext.1(1). He exhibited

the Counterfoil of Cheque Book pertaining to Account No. CD 155 of UBI

Dhemaji as Ext.2. He deposed that Ext.3 is the Allotment of fund for

payment of arrear to the irregular teachers and Ext.3(1) is the signature

of the then Director of the Elementary Education, Assam. He also

exhibited as Ext.4 , the allotment of fund for payment of arrear pay and

allowances to the irregular teachers. He exhibited 30 nos. of cheque as

Ext.5 to Ext.34.

20. During his re-examination, PW.1 Rajani Phukan deposed

that on 8.4.1997 police seized 1. File for High Court CR Case No.2223/95

which contains certified copy of order dated 5.6.95 passed in

connection with Civil Rule No.2223/95 (Ext.37) and 44 pages of Xerox

copies relating to the said case. 2. Counterfoil cheque book Sl. No.

MDC/B 700776 to 700875 (CD A/C 155). 3. File for irregular teachers

appointment against non sanctioned post under Dhemaji Sub Division in

1989 (Ext.59), this file contains letter No. EAA.18/87/346 dtd.12.5.92

which was given by the DEE to the DI of Schools, Dhemaji, another

letter regarding irregular teachers appointment No.EAA/18/87/229

dtd.17.3.92, one HSLC certificate in the name of Anupam Deori, one

appointment letter issued by D.I. of Schools, Dhemaji appointing one

Smti. Dipali Koch, statement of Sri Kirti Kamal Gogoi in Assamese,

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another illegible appointment letter of Tabin Barpatra Gohain,

appointment letter in the name of Chandra Prabha Borgohain, 4. File for

CR cases of irregular teachers appointed in the year 1989 (both group

and individual cases) Vol.1 & II (Ext.60), Ext.60(1) is the signature of

the then DI of Schools, Dhemaji Sri Dimbeswar Gogoi, this file contains

another list of vacancies in Assamese ,Ext.60(2), Ext.62 is the part

documents of Ext.60. 5. Register relating to High Court cases, No. of

registers-2 (Vol. 1 & II), 6. Sanction letter received from DEE, Kahilipara

vide Sanction letter No.EAA-18/87/598 dtd.29.3.94 (Ext.3), for

Rs.2,36,92,518/- and another Sanction letter No.ELC 8/94/95/26-A

dtd.23.3.95 for Rs.1,36,87,878/- (Ext.4).

21. In his cross-examination for accused Khagen Deori, PW.1

deposed that he is not the Drawing and Disbursing Officer and Ext.2 to

Ext.34 were seized from D.I. of Schools on being produced by Khagen

Deori in his presence. He also stated that he was not allowed to peruse

the documents of the files at that time. He stated that he had seen

Ext.37 and he did not go through the other documents. He stated that

Ext.59 contains Xerox copies only and he had seen only the first page

and register not seen by him. He stated that Ext.3 is also a Xerox copy

but Ext.60 is original. He stated that in Ext.61 and Ext.61(1) the case

number 2223/95 is not mentioned.

22. In cross-examination for accused Jogen Bora, PW.1 stated

that he maintained records of number of schools, number of school

teachers, number of children and number of teachers undergoing

training.

23. Prosecution examined the original complainant Kirti Kamal

Gogoi as PW.2. He deposed that in the year 1989 he was working as

teacher in Dhemaji Town ME School and at that time he was the

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Secretary of All Assam Primary Middle School Union Santha of Dhemaji

district and also the president of Dhemaji District M.E. School Teachers.

He also stated that during the year 1989 when Dimba Gogoi was the

D.I. of Schools, Dhemaji, he appointed some L.P. School teachers

against non existent posts. He deposed that after detection of the

irregularities he made a complaint before the Chief Minister of Assam

for which ultimately a case was registered.

24. In his cross-examination for accused Khagen Deori, PW.2

stated that the original complaint lodged by him on the basis of which

investigation has started is not available in the record and the same is

also not shown to him. The other accused persons have not cross-

examined him.

25 Prosecution examined Sri Prakash Bordolai as PW.3 who

deposed that in the year 1987 he was working in the Dhemaji Branch of

United Bank of India as cashier cum general clerk and during his tenure

police seized 30 nos. of cheques from Babul Hazarika, the Rural

Development Officer vide seizure list (Ext.35). He identified his signature

as Ext.35(1). He also identified the seized cheques as Ext.5 to Ext.34.

This witness was not cross-examined by any of the accused persons.

26. Prosecution examined one Lalit Rajkhowa as PW.4. He

deposed that in the year 1995 he was working as UDA in the office of

D.I. of Schools, Dhemaji and on 8.4.1997 police seized vide Ext.1

Seizure list some documents from their office. He deposed that Ext.5 to

Ext.34 , the cheques were issued from their office which were written

by Khagen Deori, Head Assistant and signed by the then D.I. of

Schools, Jogen Bora as DDO. He further deposed that he knows their

signatures as he was working in the same office.

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27. During his re-examination, PW.4 deposed that on 8.4.1997

police seized 1. File for High Court CR Case No.2223/95 which contains

certified copy of order dated 5.6.95 passed in connection with Civil Rule

NKo.2223/95(Ext.37) and 44 pages of Xerox copies relating to the said

case. 2. Counterfoil cheque bok Sl. No. MDC/B 700776 to 700875 (CD

A/C 155). 3. File for irregular teachers appointment against non

sanctioned post under Dhemaji Sub Division in 19879 (Ext.59), this file

contains letter No. EAA.18/87/346 dtd.12.5.92 which was given by the

DEE to the DI of Schools, Dhemaji, another letter regarding irregular

teachers appointment No.EAA/18/87/229 dtd.17.3.92, one HSLC

certificate in the name of Anupam Deori, one appointment letter issued

by D.I. of Schools, Dhemaji appointing one Smtyi. Dipali Koch,

statement of Sri Kirti Kamal Gogoi in Assamese, another illegible

appointment letter of Tabin Barpatra Gohain, appointment letter in the

name of Chandra Prabha Borgohain, 4. File for CR cases of irregular

teachers appointed in the year 1989 (both group and individual cases)

Vol.1 & II (Ext.60), Ext.60(1) is the signature of the then DI of Schools,

Dhemaji Sri Dimbeswar Gogoi, this file contains another list of vacancies

in Assamese ,Ext.60(2), Ext.62 is the part documents of Ext.60. 5.

Register relating to High Court cases, No. of registers-2 (Vol. 1 & II), 6.

Sanction letter received from DEE, Kahilipara vide Sanction letter

No.EAA-18/87/598 dtd.29.3.94 (Ext.3), for Rs.2,36,92,518/- and letter

No.ELC 8/94/95/26-A dtd.23.3.95 for Rs.1,36,87,878/- (Ext.4).

28. In his cross-examination for accused Khagen Deori, PW.4

stated that at the relevant time accused Khagen Deori was the Head

Assistant of their office and the cheque books were in his custody. He

also stated that the cheque books were shown to him by the

investigating officer and then he learnt that the cheque books were in

the custody of accused Khagen Deori. He stated that he do not know

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who prepared the bills against the cheques. He further stated that at the

time of seizure he was the UDA I/C of Non Formal Education in the

same office. He stated that Non Formal pay bill was prepared separately

but DDO was the same. He further stated that at the relevant time the

arrear pay bill was prepared by the then Head Assistant Khagen Deori.

He stated that bills were prepared as directed by the DDO (D.I. of

Schools) and thereafter the Head Assistant prepared the cheques. He

further stated that after preparing of the cheques the same were placed

before the DDO for his signature and the DDO after consulting with the

bill put his signature in the cheques. He stated that he do not know

when and how Ext.37 was delivered in their office which contains three

pages. He further stated that Ext.37 was seized from D.I’s chamber but

he do not know who and when the documents was delivered in D.I.

chamber. He stated that he do not know about the facts of this case. He

further stated that the arrear bills are prepared only after approval of

DEE on the basis of concurrence of Finance Department, Govt. of

Assam.

29. During cross-examination for accused Jogen @ Jogendra

Bora he stated that salary bills of school teachers are prepared by the

Headmaster concerned and then the bills are sent to the D.I. of

Schools. He stated that he do not know who made the original

requirement. He further stated in cross-examination that the concerned

teachers made prayer in the office of D.I. and payment was made as

per order of the High Court. He stated that all the documents including

Ext.37 was seized by the investigating officer from the office of the D.I.

of Schools, Dhemaji on being produced by Khagen Deori.

30. Prosecution examined one Ashok Sharma as PW.5 who

deposed that Ext.29 is a cheque amounting to Rs.49,294/- issued in his

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name by the D.I. of Schools, Dhemaji on United Bank of India. He

deposed that he is a cultivator and he never received the cheque nor

encash the same.

31. In his cross-examination for accused Jogen @ Jogendra

Bora, PW.5 deposed that he do not know whether there is any other

Ashok Sharma in Dhemaji . The other accused persons did not cross-

examine him.

32. Prosecution examined Rajesh kr. Sharma as PW.6. He

deposed that in the year 1995 he came to know that a cheque (Ext.5)

for an amount of Rs.49,294/- was issued in his name. he deposed that

the cheque was never handed over to him nor he encashed the same.

33. In his cross-examination for accused Jogen Bora, he stated

that Ext.5 , the cheque might have been issued to some other Rajesh

Sharma. He denied that Ext.5 was not issued in his name. He also

stated that no money was due to him from D.I. of Schools. Other

accused persons did not cross-examine this witness.

34. Prosecution examined Babul Ch. Hazarika as PW.7 who

deposed that while he was working as Rural Development Officer

attached to UBI, Dhemaji on 18.8.1997 he was officiating Manager of

the Branch and on that day police seized 30 number of documents vide

Ext.35 (Seizure list). He identified the seized documents as cheques

being Ext.5 to Ext.34. This witness was not cross-examined by the

accused persons.

35. Prosecution examined Loknath Gogoi as PW.8. He deposed

that on 20.8.1997 he was working as Sub Inspector of Schools attached

to the D.I. of Schools, Dhemaji and on that day police seized two

17

documents namely certified copy of order dtd.5.6.95 passed by the

Hon’ble Gauhati High Court in Civil Rule No.2223/95 and a subsidiary

cashbook vide Seizure list (Ext.36) from their office.

36. In his cross-examination for accused Khagen Deori, PW.8

stated that he made an enquiry in respect of the appointment of teacher

and thereafter he submitted one report .

37. In his cross-examination for accused Kamala Sharma,

PW.8 stated that he do not have any personal knowledge regarding the

occurrence of this case and at the relevant time accused Kamala Sharma

was working in the office of D.I. of Schools, Jonai.

38. Prosecution examined one Lukumoni Chutia as PW.9 who

deposed that in the year 1995 he was working as casual worker in the

office of D.I. of Schools, Dhemaji and one day accused Uday Phukan

took him to UBI, Dhemaji where he was asked to put his signature on

some papers assuring that his service will be regularized. He also stated

that Mr. Phukan took his signature on a cheque and withdrew the

money. He stated that he did not get the job nor the money. He

identified his signature on the reverse of the cheque dated 8.6.1995 as

Ext.18(1) and Ext.18(2). Cross-examined of this witness was declined.

39. Prosecution examined another witness Khargeswar

Changmai as PW.10 who deposed that on 23.10.97 he was serving as

Headmaster of No.2 Ghilaguri LP School. He deposed that by an

application (Ext.39) he informed to S.I. of Schools that no lady teacher

Annapurna by name worked in his school.

40. In his cross-examination for accused Sri Kamala Sharma,

he stated that in Ext.39 there is no mention as to in which context the

18

said letter was issued. However he stated that he issued the letter as

per verbal direction of S.I. of Schools, Loknath Gogoi.

41. Prosecution examined one Chandan Sharma as PW.11 who

deposed that on 20.8.1987 he was serving as a teacher of Sangkong

Narayanpur L.P. School. He stated that he never served as teacher in

Jamunaguri L.P. School and he also never submitted any bill and never

received any money from that school.

42. In his cross-examination for accused Sri Kamala Sharma,

PW.11 stated that he do not know if there is any other person by his

name Chandan Sharma in the locality. He also stated that he has no

knowledge regarding occurrence of this case and also do not know

regarding preparation of teacher’s bills, submission of the same in the

Bank and thereby withdrawing of money from the Bank by cheque.

43. Prosecution examined Sri Anupam Deori, son of Khagen

Deori as PW.12. He deposed that his father worked in D.I. office

Dhemaji and in the year 1989 to 1992 he was a student of High School

and during that period he never served as teacher in any school and

also had not received any money as salary during that period.

44. In his cross-examination, he stated that his statement was

not recorded by the investigating officer and the police took his

signature in a blank white paper. He further stated that his father’s

name is Khagen Deori not Dhoni Deori. The other accused persons have

not cross-examined this witness.

45. Prosecution examined one Sri Surjya Chutia as PW.13 who

deposed that in the year 1992 he worked in Nagakhulia LP School as

Headmaster and he prepared the salary bill of teachers serving in his

19

school namely, Smti. Bhanima Kakati, Lili Dutta, Khargeswar Dutta and

for himself.

46. In his cross-examination for accused Kamala Sharma,

PW.13 stated that the bills which he had referred in his examination-in-

chief has not been shown to him in the Court. He also stated that the

Dispatch Register of the Bill is also not shown to him. The other accused

persons did not cross-examine him.

47. Prosecution examined one Smti. Debajyoti Baruah as

PW.14 who deposed that during the period 1989 to 1992 she was

serving as Assistant Teacher in Machkhowa Pathalia L.P. School and at

that time Robin Baruah was the Headmaster and there were three

teachers in that school.

48. In cross-examination for accused Sri Kamala Sharma,

PW.14 deposed that she cannot say the name of the person for whom

the bills were prepared as she herself did not prepare the bills. She also

stated that during the period 1989 to 1992 Debeswar Borgohain was the

Headmaster of their school. Other accused persons did not cross-

examine PW.14.

49. Prosecution examined Bolin Lahon as PW.15 who deposed

that during 1989 to 1992 he was serving as Headmaster at Napam L.P.

School and at that time there were six teachers in their school and he

used to prepare the bills for those teachers including himself namely

Smti Padma Handique, Jagat Gohain, Smti. Rekha Gohain and Puspalata

Gohain. PW.15 further stated that another teacher Mahibur Baruah was

transferred.

20

50. In his cross-examination for accused Kamala Sharma,

PW.15 stated that the bills which he referred has not shown to him in

the Court . He also stated that the despatch register of the bill is also

not shown to him. Other accused persons did not cross-examine him.

51. Prosecution examined Sri Sarat Ch. Hazarika as PW.16 He

deposed that he joined as teacher in the year 1967 and he was

promoted to SI of Schools in the year 1971 and he was again promoted

to Elementary Education Officer at Bihali in the year 1992. Thereafter

he was promoted to DI of Schools at Dhemaji and retired in that office

in the year 2000. PW.16 stated that on 20.8.1997 police seized

subsidiary cashbook of DI of Schools commencing from 1994 from page

1 to 42 vide Ext.36, the seizure list through MR No.10/99 from him and

Ext.36(2) is his signature. Ext.38 is the said subsidiary cashbook.PW.16

further stated that police showed him a list of teachers and asked him

whether those teachers were working during the relevant time and he

directed three S.I.s of Schools to verify the matter and the S.I.s of

Schools reported him that such teachers were not working during the

relevant time.

52. In his cross-examination for accused Kamala Sharma,

PW.16 stated that in the Court he has not seen the list of name of

teachers which was furnished to him by the police for verification neither

he remembered the name of the said teachers whose names were

mentioned in the said list of teachers given by the police. PW.16 further

stated that the report submitted by the S.I. is not available in the Court

and neither it has been shown to him and also do not know the actual

contents of the said report. PW.16 further stated that the written order

issued by him to the S.I. of Schools to verify the list of the teachers is

also not shown to him in the Court. PW.16 further stated that he did not

21

give any oral statement to the police during the investigation of this case

but as per direction of the police he submitted a written statement to

the police. PW.16 further stated that Ext.38 was maintained by the

Head Assistant K.N. Deori and he knows nothing about Ext.38, the

cashbook. He only put his signature as a seizure witness. PW.16 further

stated that he do not know about the cash book(Ext.38) as because he

was shown the cashbook (Ext.38) only on the day of seizure. The other

accused persons have not cross-examined this witness.

53. Prosecution examined Sri Tarini Mohon Gogoi as PW.17.

He deposed that he is working as UDA in the office of DI of Schools,

Dhemaji . The Head Assistant of the office K.N. Deori asked him to verify

the case regarding case No.2223/95 but this case has not been found in

any office record of their office.

54. In his cross-examination for all the accused persons,

PW.17 stated that he do not know anything about the Civil Rule

No.2223/95 which was filed before the Hon’ble High Court . He also do

not know the name of the petitioner of the aforesaid Civil Rule. PW.17

further stated that he was working in different branches of the office

and he was not given any such important work nor allotted to him.

PW.17 further stated that though he was examined during investigation

of the case, his statement was not recorded by the I.O. However the

investigating officer asked him to write what he knew about the case

and accordingly he wrote, signed and gave the same to the investigating

officer. PW.17 further stated that at the time of occurrence accused

Kamala Sharma was working in D.I. of Schools, Jonai.

55. Prosecution examined Smti. Aimoni Lahon as PW.18 She

deposed that she joined the D.I office, Dhemaji in the year 1984. In the

year 1997 she was working in the D.I. office as L.D. Assistant. She

22

further stated that as L.D. Assistant her duty is to prepare the salary bill,

maintenance of leave account. She also prepared other clerical works.

She stated that on 8.4.1994 police seized certain documents vide Ext.1,

the seizure list in her presence and Ext.1(3) as her signature.

56. In her cross-examination for accused Jogen Bora, PW.18

stated that she has no personal knowledge about the documents seized

by police. She further stated that she do not know anything about the

facts of the case except putting her signature in the seizure list(Ext.1).

57. Prosecution examined Sri Siba Dutta as PW.19. He

deposed that he joined in the office of D.I. of Schools, Dhemaji in the

year 1992 and on 9.4.1997 he was working as U.D. Assistant in the

office of District Elementary Education Officer, Dhemaji. The witness

identified the signature of D.I. of Schools, Dhemaji Jogen Bora on Ext.5

to Ext.34 being Ext.5(1) to Ext.34(1).He also stated that they used to

maintain a court case register in respect of any cases filed in the Hon’ble

Gauhati High Court and in other courts where they used to make entries

regarding registration of case. He also stated that in the said court

case register which is maintained in their office there is no entry of C.R.

Case No.2223/95.

58. In his cross-examination for accused Sri Kamala Sharma,

he deposed that he has not shown the Court case register in the Court

and police also has not seized the same. PW.19 further stated that he

worked in the office of D.I. of Schools, Dhemaji but at the relevant time

when occurrence took place he was not working in the said office and

did not maintain court case register.

59. In his cross-examination for accused Jogen Bora, PW.19

stated that since he did not work in the Accounts department he can not

say who has written the cheques. He further stated that Ext.5(1) to

23

Ext.34(1) appears to be the signatures of Jogen Bora but he is not sure.

60. Prosecution examined one Sri Hiranya Ch. Das as PW.20

who deposed that he retired as Headmaster of Khajua L.P. School,

Dhemaji in February,1998. He stated that he was the Headmaster and

Ganesh Borgohain was the Assistant Teacher of the said school and

there was no other teacher in Khajua L.P. School. He stated that he do

not know if prior to his appointment in the said school any teacher

namely Durna Kanta Sonowal worked in that school.

61. In his cross-examination, PW.20 stated that police had not

seized any school register. He also stated that police had not seized the

Attendance Register of his school or any other relevant documents from

him to show that there were two nos. of teachers working at the

relevant time.

62. Prosecution examined one Sri Keshab Ch. Phukan of

United Bank of India as PW.21. He deposed that in the year 1993 he

was working as Manager of UBI, Dhemaji Branch. He stated that on

5.2.1998 police seized one photocopy of circular regarding SB Account

and Fixed Deposit vide Ext. 40, the seizure list. PW.21 also deposed that

Ext.5 to Ext.34 are the cheques issued by the then D.I. of Schools,

Dhemaji in the name of various teachers mentioned in the cheques. He

also stated that the cheques were duly encashed by the respective

persons.

63. In his cross-examination, PW.21 stated that the persons

who had encashed the cheques had their Accounts in the Bank and that

all the cheques were Account Payee cheques. He further stated that the

persons who had withdrawn the money put their signatures on the

back of the cheque. He further stated that the persons who opened

24

Account in their Bank were themselves present at the time of opening

the Account.

64. Prosecution examined one Sri Trailukya Nath Konwar,

Block Elementary Education Officer, Bordoloni, Dhemaji as PW.22. He

deposed that he joined the Education Department in the year 1972 and

that normally salary of school teachers are paid to them in cash. He

stated that in case of M.E. School teacher, the Headmaster used to draw

the salary of his school and he disburse the same among the school

teachers. He stated that in case of LP school teacher, the Center

secretary used to draw the salary and disburse the same. He further

stated that in case of drawal of arrear the mode of drawal and payment

are the same. This witness was not cross-examined by the defence.

65. The prosecution examined one Hemanta Kr. Sharma as

PW.23. He deposed that on 13.7.2000 he was working as Director of

Elementary Education, Assam, Kahilipara, Guwahati and on that day he

had accorded prosecution sanction against three nos. of accused

persons. He exhibited the Forwarding Letter as Ext.41 and Ext.42 being

the sanction order accorded against accused Khagen Deori , Ext.43

being the Sanction Order accorded against accused Kamala Sharma and

Ext.44 being the Sanction order accorded against accused Udayaditya

Phukan. He stated that before according prosecution sanction he had

gone through all the documents placed before him and being satisfied

with them he accorded prosecution sanction against the said three nos.

of accused persons.

66. In his cross-examination for accused Khagen Deori, PW.23

stated that he has accorded prosecution sanction as per the format

given by the prosecuting agency. He stated that by the word “format”

he did not mean that there was a format for according prosecution

25

sanction. He denied that he has accorded prosecution sanction order as

per instruction of police. He further stated that he do not remember

whether there is any copy of order regarding disbursement of salary of

teachers issued by the Hon’ble High Court placed before him. He

denied the suggestion that he accorded prosecution sanction as per the

format given by the police.

67. In cross-examination for accused Kamala Sharma, he

deposed that in the sanction order he has not mentioned the fact

constituting the offence against the accused person. He stated that he

also has not mentioned the amount misappropriated by the accused

persons. He also stated that in the sanction order he has not mentioned

the name of terminated LP school teachers of Dhemaji district in the

year 1995 and has not mentioned the case number which was tampered

with. He also stated that in the sanction order he has not mentioned

that he is the competent authority to remove accused Kamala Sharma.

He denied the suggestion that the sanction order was issued without

following due procedure.

68. Prosecution examined one Dinesh Ch. Barman, IAS as

PW.24. He deposed that on 17.5.2000 he was working as Commissioner

& Secretary in the Govt. of Assam, Education Department and on that

day he accorded sanction to prosecute accused Jogendra @ Jogen Bora

who was the District Elementary Education Officer, Dhemaji. He

identified the sanction order as Ext.45. He also stated that before

according prosecution sanction he has gone through the documents and

other materials carefully and applied his mind.

69. In his cross-examination for accused Jogen Bora, he stated

that in the sanction order there is no mention that he has gone through

the documents and applied his mind. He denied the suggestion that the

26

vigilance authority prepared the sanction order and he simply put his

signature therein.

70. Prosecution examined one Sri Mohendra Bharali as PW.25.

He deposed that since 1981 he is working as peon in the office of D.I. of

Schools, Dhemaji. He stated that he was handed over a file by the then

Head Assistant of D.I. of Schools, Dhemaji, Sri Khagendra Deori to keep

in the file of cases and the file referred to case no.2223/95 of High

Court. He further stated that on being asked he handed over the file to

Khagendra Deori. He further stated that after a few days he handed

over the file to U.D. Assistant Tarini Mohon Gogoi.

71. In his cross-examination for accused Khagen Deori, he

stated that he do not know what was inside the file. He further stated

that the then Head Assistant Tarini Mohon Gogoi used to deal with the

file relating to High Court cases.

72. Prosecution examined one Sri Budheswar Bora as PW.26

who deposed that on 17.7.2002 he was working as Dy. Inspector of

Schools, Dhemaji. He stated that on that day he accorded prosecution

sanction against accused Smti Dipika Devi, the L.P. School teacher ,

Dhemaji. The cross-examination of this witness was deferred as accused

Smti. Dipika Devi has taken the plea of insanity. Later on, accused

Dipika Devi after medical treatment recovered and was declared fit for

trial. The learned counsel for accused Smti Dipika Devi after accused

Dipika Devi was declared fit filed a petition for recalling PW.26 for the

purpose of cross-examination. PW.26 was not cross-examined as the

petition filed by the learned defence counsel to recall PW.26 was not

allowed.

27

73. Prosecution examined one Prasanta Chetia as PW.27. He

deposed that in the year 1992 he passed higher secondary examination

but he never worked in any LP school namely Mora Kathani LP School

in Dhemaji district. He further deposed that Ext.9 is the cheque showing

payment of Rs.49,294/- in his name but he has never received the

cheque nor he drew the money. He further submitted that accused

Kamala Sharma married his elder sister who is suffering from mental

illness.

74. In cross-examination for accused Jogen Bora, he stated

that he do not know who has entered his name in Ext.9 and also do not

know who has withdrawn the money by putting his name on the

backside of the cheque.

75. In cross-examination for accused Kamala Sharma, he

stated that he has never given any statement before the investigating

officer and also has not heard the name of any school as Mora Kathani

LP School. He also stated that police obtained his signature on a blank

paper. He further stated that there were other persons by name

Prasanta Chetia in his village but he do not know whether they have

received any money or cheque. He also stated that his elder sister

Dipika Devi is not working in any school as she is suffering from some

serious disorder.

76. Prosecution examined Sri Hareswar Das, Dy. Director, I/C

Question Document Division, Forensic Science Laboratory, Assam,

Guwahati as PW.28. He deposed that on 12.5.2000 he was working as

Dy. Director in the Questioned Document Division of Assam Forensic

Science Laboratory, Assam, Guwahati. On that day he received certain

documents in connection with Vigilance Case No.2/99

U/S.120B/420/468/471/408/409 IPC read with Sec.13(2) of P.C. Act,

28

1988 from the Superintendent of Police, Special Vigilance Cell, Assam,

Guwahati vide his memo no.SVC/PS Case No.2/99/460 dtd.10.5.2000.

PW.28 stated that he examined the documents carefully and thoroughly

and marked the questioned items referred in this case in Q series and

specimen writings and signatures supplied for the purpose of

comparison in S series and contemporaneous writings in A series. He

had carefully and thoroughly examined the questioned items in this case

and compared them with the relevant standard materials from the

original documents in all aspects of handwritings, identification and

detection of forgery with the necessary scientific aids in the Forensic

Science Laboratory, Assam, Guwahati and finally he formed his opinion

as follows:

77. The person who wrote the blue enclosed signatures

stamped and marked S1, S1(1), S2, S2(1) and A6 to A10 also wrote the

red enclosed signatures similarly stamped and marked Q31 to Q39,

Q39/1, Q40 to Q53, Q53/1 and Q54 to Q60.

78. The person who wrote the blue enclosed writings and

signatures stamped and marked S3, S3(1), S4, S4(1), A1, A2(1), A3,

A3(1), A4, A4(1), A5 and A5(1) also wrote the red enclosed writings and

signatures similarly stamped and marked Q1 to Q30, and Q31/1,

Q30(1). PW.28 stated that his opinion were communicated to the

forwarding authority vide Memo No.FSL/24/2000/691 dtd.9.6.2000 by

the then Director, FSL, Assam, Kahilipara, Guwahati Dr. K. Goswami.

Vide Ext.47 , the forwarding letter and Ext.47(1) is the signature of Dr.

K. Goswami, the then Director, FSL, Assam, Kahilipara, Guwahati .

Ext.48 is his opinion and Ext.48(1) is his signature.

79. PW.28 further stated that Ext.5 to Ext.34 are the

questioned cheques which contains their markings as Q1 to Q60 and

29

Q1(1) to Q30(1), Q39(1) to Q53(1). Ext.49 and Ext.50 contains the

specimen signatures of accused Jogen Bora wherein, in his markings S1,

S1(1), S2 and S2(1) contain. Ext.51 and Ext.52 are the documents

containing specimen writings and signatures of Sri Khagen Deori

wherein in his markings S3, S3(1), S4, S4(1), exists. PW.28 stated that

Ext.38(1) to Ext.38(5) are the pages of cashbooks containing admittedly

genuine writings of Sri Khagen Deori. Ext.38(6) to Ext.38(10) are

admittedly the genuine signatures of accused Jogen Bora in the above

cash book. Ext.53 is the document containing reasons of his opinion.

Ext.53(1) is his signature. He exhibited Ext.54 as the Forwarding Letter

of Superintendent of Police, CM’s Special Vigilance Cell, Assam.

80. In cross-examination for accused Jogen Bora, PW.28

stated that in Ext.49 and Ext.50 there is an over writing in the figure for

day in the date which was authenticated by his initial. There is no

distinct demarcation for initials and signatures by definition. As the

questioned items contains the letter form for J & B representing Jogen

Bora, they can term them as initial and also as short signature.

81. In cross-examination for accused Khagen Deori, PW.28

stated that there is a variation in certain alphabet of a person’s writings.

This variation which is a natural for everybody’s writings are called

natural variation and it is an integral part of genuine writing. This

variation cannot be termed as different. He stated that in his report,

most of the significant feature which identities the writer and which are

convincing and significant they have been mentioned only. All the

features appearing in all the alphabets are not required to be

mentioned.

82. PW.29 Deben Konwar deposed that he worked as Assistant

Teacher in Goal Chapari MV School and he was the teacher of Rajen

30

Sarmah, Prasanta Chetia and Deepika Devi and further stated that the

above three persons never worked in his school and identified the

certificate issued by him in this regard as Ext.55.

83. In cross-examination, he stated that he has not brought

the register on the basis of which he issued the certificates (Ext.55).

84. Prosecution examined the one Nabab Imdad Hussain as

PW.30 who simply deposed that on 14.8.2000 while he was working as

Superintendent of Police, in CM’s Special Vigilance Cell he forwarded the

Charge sheet No.1/2000 dtd. 14.8.2000 submitted by I.O. Jagadish

Sharmah along with forwarding note. He exhibited the Charge sheet as

Ext.56 and Ext.56(1) as his signature and Ext.56(2) as the signature of

I.O. Jagadish Sarma. He stated that he has not taken part in the

investigation.

85. In cross-examination, he confirmed that he only forwarded

the Charge sheet and has not done any investigation.

86. Prosecution examined I.O. Jagadish Sharma as PW.31. In

his evidence PW.31 (I.O) deposed that on the basis of complaint

submitted by one Kirti Kamal Gogoi, Secretary, Assam L.P. School

Teacher Co-ordination Committee, Dhemaji district, the then

Superintendent of Police, Vigilance endorsed him to take up a regular

enquiry. He stated that during enquiry he collected documents and other

materials from the concerned D.I. of Schools, Dhemaji and submitted

his regular Inquiry Report before the Superintendent of Police, CM’s

Special Vigilance Cell. He also deposed that after conducting regular

enquiry he filed an ejahar before the O/C cum Superintendent of Police,

C.M’s Vigilance Cell as a result SVC Case No.2/99

U/S.120B/420/468/471/408/409 IPC read with Sec.13(2) of PC Act, 1988

31

was registered against the accused persons. He further submitted that

he was endorsed to investigate the case. He deposed that Ext.57 in five

sheets is the FIR submitted by him. He exhibited the printed format of

FIR as Ext.58. He stated that vide Ext.1, the seizure list he seized six

nos. of documents from the Head Assistant of D. I. of Schools, Dhemaji,

Khagen Deori . He exhibited the file relating to the appointment of

irregular teachers against non sanctioned posts as Ext.59. He exhibited

as Ext.60 in six sheets the list of irregular teachers appointed against

non sanctioned posts along with entire office record. He further

deposed that by Ext.35 he seized as many as 30 nos. of documents and

vide Ext.40 he seized as many as 2 nos. of documents. He identified the

subsidiary cashbook of schools of Dhemaji seized by him as Ext.36. He

exhibited the subsidiary cashbook as Ext.38. he stated that vide Ext.35,

30 nos. of cheques were seized from the Bank. He stated that Ext.61 is

the register relating to court cases Vol. No.II seized by him. He identified

as Ext.37 the certified copy of order dtd. 5.6.95 passed by the Hon’ble

Gauhati High Court in Civil Rule No.2223/95. He identified the

undertaking given by the teachers in D.I. office as Ext.62. He deposed

that he obtained the prosecution sanction order against the accused

persons and also sent the cheques to the hand writing expert for opinion

regarding writings and signatures in the cheques. He deposed that after

obtaining sanction he submitted charge sheet against accused Jogen

Bora, D.I. of Schools, Dhemaji, Khagen Deori, UDA, office of the D.I. of

Schools, Dhemaji, Kamala Sharma, UDA office of the S.I. of Schools,

Jonai, Udayaditya Phukan, and Smti Deepika Devi, wife of Kamala

Sharma. He identified the charge sheet as Ext.56.

87. In his cross-examination for accused Kamala Sharma and

others, he deposed that PW.2 kirti Kamal Gogoi is the complainant of

this case on the basis of which this case was registered but he has not

32

seized the original complaint of PW.2 Kirti Kamal Gogoi during his

enquiry and investigation. He also stated that the alleged occurrence

took place in the office of D.I. of Schools, Dhemaji during the period

from 5.6.95 to 8.6.95. He further stated that during investigation he

could not detect as to who has submitted the certified coppy of order

dtd. 5.6.1995 in connection with Civil Rule No.2223/95 in the office of

D.I. of Schools, Dhemaji. He stated that during his investigation he has

not visited any office of the Hon’ble High Court comprising Civil Rule

Section, Record Section, Copy Section etc. He also stated that he did not

collect any certified copy of the original petition of Civil Rule No.2223/95

from the Hon’ble Gauhati High Court. He further stated that he has not

obtained the specimen signatures of any teacher who alleged to have

received the cheques and money.

88. In cross-examination he also stated that during his

investigation he has not seized any application form for obtaining bank

account including the specimen card and other relevant documents. He

also started that he did not find any introducer of the Bank Account. He

further stated that he do not know if the office had prepared any bill

against cheques (Ext.5 to Ext.34). He further stated that he had not

seized the dispatch register of the bill of the teachers who were working

in that school at that time. He also stated that he did not seize any

attendance register of the school involved in this case. He stated that

Ext.62 has been proved and exhibited for the first time in the Court on

that day. He stated that Ext.62 are undertaking given by S.I. of Schools

and the candidates. He further stated that he has not made any

person/petitioner who approached the Hon’ble High Court as accused

persons in this case and also has not made any of them as witness in

this case.

33

89. In cross-examination, he admitted that he conducted

regular enquiry before lodging of the FIR and submitted his report to the

Superintendent of Police , C.M’s Special Vigilance Cell and the concerned

Superintendent of Police asked him to file an FIR after going through his

report . He identified the FIR as Ext.57. He also stated that after

completion of investigation he submitted Charge sheet. He stated that

he has done everything from beginning to end in this case. PW.31

further stated that the petitioners of Civil Rule No.2223/95 were not

made accused in this case as they did not personally committed the

offence but somebody else committed the offence on their behalf.

90. In cross-examination for accused Khagen Deori, the

I.O.(PW.31) stated that he did not make any effort to obtain the original

record of Civil Rule No.2223/95. He further stated that the enquiry was

made on the basis of GD Entry at the behest of kirti Kamal Gogoi, but

the number of G.D Entry is not mentioned in the ejahar. He also stated

that he has recorded the statement of thirty persons whose names

appears in Ext.37.

91. After examination of the prosecution witnesses, Court

examined one Mridul Kalita, the then Joint Register (Judl.II) of Hon’ble

Gauhati High Court as Court witness No.1. In his evidence on oath

before this Court, CW.1 deposed that as asked by this Court the original

record of Civil Rule No.2223/95 between Dipika Devi and others –vs-

State of Assam is produced before this Court. He identified the original

record of Civil Rule No.2223/95 as Ext.63 and Ext. 64 as the Forwarding

Letter. He further stated that as per Ext.63 there were twenty

petitioners namely (1) Smti. Deepika Devi, (2) Sri Krishna Sharma, (3)

Gobin Changmai, (4) Sri Rajesh Sarma, (5) Sri Deba Sarma, (6) Sri

Ashok Sarma, (7) Smti Monika Devi, (8) Smri. Annapurna Devi, (9) Sri

34

Ramjoy Deori, (10) Sri Nripen kr. Deori, (11) Sri Anupam Deori, (12) Sri

Lukumoni Chutia, (13) Smti Santana Changmai, (14) Sri Kalia Deori, (15)

Sri Mintu Deori, (16) Sri Chandan Sarma, (17) Sri Prasanta Chetia, (18)

Deba Kanta Sonowal, (19) Sri Godunga Deori and (20) Sri Pabitra

Sonowal. He further stated that as per record, (Ext.37), the certified

copy of order dtd.5.6.1995 was issued from the Hon’ble Gauhati High

Court. He stated that in the certified copy there are names of thirty

petitioners.

92. During his cross-examination, CW.1 stated that he cannot

say who had in fact applied for the certified copy of order dtd. 5.6.1995

(Ext.37) and he also can not say who had in fact received the same from

the Hon’ble High Court. He stated that he has no personal knowledge

about the forgery of Ext.37.

93. The defence in order to prove their case has examined

altogether 5 D.Ws.

94. The defence examined one Kamal Hussain as DW.1 who

worked as Dy. Inspector of Schools, Dhemaji. He deposed that he is

working as Dy. Inspector of Schools in Dhemaji district and he knew

accused Kamala Sharma for a long time. He stated that accused Kamala

Sharma was working as Lower Division Assistant in the office of the Dy.

Inspector of Schools, Dhemaji upto 18th April, 1990 and thereafter he

was transferred to the office of the Dy. Inspector of Schools, Jonai vide

memo No. DEL/Esstt./DIS/2/89-90/3121-27 dtd.27.3.1990. He exhibited

the said letter as Ext. A and identified the signature of Dilowar Hussain,

the then District Elementary Education Officer, Lakhimpur as Ext. A(1).

He further deposed that after receiving the transfer order accused

Kamala Sharma joined in the office of D.I. of Schools, Jonai as L.D.

Assistant and till date he is working there. He further stated that he has

35

brought Ext.A as directed for the same and Ext.A was under his custody

in his official capacity.

95. In his cross-examination, DW.1 stated that on 27.3.1990

he was at Golaghat district as Sub Inspector of Schools. He further

stated that in his service life he never worked under Dilowar Hussain,

the then District Elementary Education Officer, Lakhimpur. He stated

that Ext.A does not contain any official seal. He denied that Ext.A is not

an official document. He stated that during the period 1989 to 1992 he

never visited Dhemaji and Jonai and has no personal knowledge when

accused Kamala Sharma was joined in which place.

96. Defence examined Sri Haliram Chamua, D.I. of Schools,

Jonai as DW.2. He deposed that he joined as D.I. of Schools, Jonai on

15.6.2005. He deposed that he has appeared before the Court after

receiving summon where he has been directed to produce the joining

order and other documents of Kamala Sharma, the then office Assistant

of D.I. of Schools, Jonai. He deposed that Ext.C is the Transfer Order of

Kamala Sharma and Ratneswar Das vide Memo No.

DEL/Esstt./DIS/82/89-90/3121-27 dtd.27.3.90. He deposed that by the

said order accused Kamala Sharma working as L.D. Assistant in the

office of D.I. of Schools, Dhemaji was transferred to the office off D.I.

of Schools, Jonai. He exhibited as Ext.D, the Release Order of accused

Kamala Sharma vide memo No. E-1/88/2937-39 dtd.18.4.90 from D.I. of

Schools, Dhemaji. He exhibited as Ext. E , the Joining Report of accused

Kamala Sharma dtd. 19.4.1990 as L.D. Assistant in the office of D.I. of

Schools, Jonai. He deposed that since the date of joining on 19.4.1990

Kamala Sharma is working under him in the office of D.I. of Schools,

Jonai till today the date of his deposition ( i.e. 12.1.2007).

36

97. In his cross-examination, DW.2 stated that during the

period 1989 to 1992 he hadnever been to Dhemaji or Jonai. He further

stated that in the year 1990 he was at Nagaon district as S.I. of Schools

and joined as D.I. of Schools at Jonai only on 15.6.2005.

98. Defence examined one Sri Jogantor Deori as DW.3 who

deposed that he joined as a teacher of Moridhal Dholagaon LP School in

the year 1995. He deposed that in the year 1995 he had to file a case

before the Hon’ble Gauhati High Court for non receipt of his salary and

recovery of his arrear pay. He deposed that the Hon’ble High Court has

directed the Govt. to release his arrear bill. He deposed that he received

his arrear pay and dues in the year 2000. He deposed that he received

the cheque issued by D.I. of Schools, Dhemaji in compliance of the

order of the Hon’ble Gauhati High Court. He further stated that as per

direction of the Director, Elementary Education on the strength of order

of the Hon’ble Gauhati High Court , the D.I. of Schools, prepared the

advice and sent it to the Head Clerk of the office to write the cheque

as per advice and placed before the D.I. of Schools for his signature

and thereafter the cheque was handed over to him after the signature of

D.I. of Schools.

99. In his cross-examination, he stated that he had applied

lonely before the Hon’ble Gauhati High Court for release of his salary. He

further stated that at the relevant time the school was under Govt. but

even then he did not receive his salary for which he had to approach

before the Hon’ble Gauhati High Court.

100. The defence examined one Haren Ch. Kalita,L.D. Assistant

posted at the office of District Elementary Education Officer, Dhemaji as

DW.4. He deposed that he knew Jogen Bora who served in the office of

District Elementary Education Officer , Dhemaji during 1994 -1995. He

37

also stated that during that period Jogen Bora also worked as I/C Dy.

Inspector of Schools. DW.4 stated that normally the teachers of primary

school are required to submit their bills before the Dy. Inspector of

Schools who passed the bills and thereafter the bills are required to be

sent to the BEEO who after passing the bills again returned back to the

Dy. Inspector of Schools and finally sent to the Treasury for

encashment. He stated that the salary bills of Primary teachers are

prepared center wise. But arrear bills are separately prepared and

passed.He stated that the S.I. of Schools of the office of the Dy.

Inspector of School is required to examine and to ascertain the existent

of the post concerned and thereafter Dy. Inspector of Schools is

required to examine and to ascertain the allotment of fund etc. He

stated that Dy. Inspector of Schools normally does not get any scope to

examine and ascertain all those aspects. He further started that he

know the signature of focused Jogen Bora for his long association with

him. He stated that he do not know who put signatures in Ext.5 to

Ext.34.

101. In his cross-examination, he stated that he did not sit in

the same room of accused Jogen Bora and he was not present when

the cheques were signed. He denied the suggestion that accused Jogen

Bora put his signatures in Ext.5 to Ext.34.

102. Defence examined one Sri Nirmal Konwar , Jr. Assistant in

the office of District Elementary Education Officer , Dhemaji as DW.5. He

deposed that in the year 1993 he joined in the office of DEEO , Dhemaji

in the capacity of Jr. Assistant cum Typist. He stated that in the capacity

of Jr. Assistant cum Typist he was allotted the duty to type out various

papers pertaining to the office administration. He submitted that it is

within his knowledge as to how the bills regarding the pay and arrear of

38

L.P. Schools are prepared. He submitted that the Headmaster of L.P.

Schools are required to prepare the salary bills etc. on the basis of

attendance register. He stated that the concerned Headmaster after

preparation of the bills normally submits it before the S.I. of Schools

who check its correctness and thereafter S.I. of Schools forward the

bills to the D.I. of Schools. The D.I. of Schools countersigned the bills

and thereafter forward to the Treasury for encashment. He further

stated that in respect of arrear bills of L.P. School Teachers the

aforesaid procedure is followed. He further stated that accused Jogen

Bora was working as District Elementary Education Officer, Dhemaji in

the year 1995 and at the same time also working as I/C, D.I. of Schools,

Dhemaji and worked in the capacity of D.I. of Schools. He stated that at

that relevant time arrear of some L.P. School teachers were released

from the office of District Elementary Education Officer, Dhemaji but the

same was done as per direction of Public Instruction (Elementary

Education). He stated that for release of the aforesaid arrear amount

some important officials from Director, Public Instruction, Guwahati

came to Dhemaji and under their supervision it was done. He further

stated that the arrear salaries were released on the basis of official

record submitted by the concerned Headmaster of school.

103. In his cross-examination, DW.5 stated that since 2005 he

is dealing with the files of pension , retirement benefit of the teachers

and employees of the office of District Elementary education Officer. He

stated that the salary bills and the arrear bills are not prepared in their

office. He also stated that he has no personal knowledge in regard to

the preparation of the aforesaid bills. He further stated that no payment

can be made without the approval of D.I. of Schools. He also stated that

at the relevant point of time accused JogenBora was working as D.I.

of Schools. He further stated that at the relevant time one Dy. Director

39

namely Mr. Narzari came to their office and he was present at the time

of disbursement of cheques to the L.P. school teachers.

DECISION AND REASONS THEREOF

104. Charge has been framed against the accused persons

U/S.120B/409/420/468/471 IPC and U/S.13(2)/13(1)(c) of P.C. Act,

1988.

105. Section 120B I.P.C deals with punishment for committing

criminal conspiracy. “Criminal conspiracy” has been defined in Section

120-A of I.P.C. as follows: “When two or more persons agree to do, or

cause to be done (1) An illegal act, or (2) An act which is not illegal by

illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence

shall amount to a criminal conspiracy unless some act besides the

agreement is done by one or more parties to such agreement in

pursuance thereof. Explanation.- It is immaterial whether the illegal act

is the ultimate object of such agreement, or is merely incidental to that

object.”

106. A bare perusal of the above section clarifies that in

order to bring home the charge U/S 120B I.P.C. prosecution must

prove the following: 1. That there must an agreement between the

persons who are alleged to conspire, and 2. That agreement should

be for (i) doing an illegal act, or (ii) for doing by illegal means an act

which by itself may not be illegal. 3. One or more persons in

pursuance of that agreement has done an overt act.

107. Charge was also framed against the accused persons

U/S 420 I.P.C. which reads as follows: “Whoever cheats and thereby

40

dishonestly induces the person deceived to deliver any property to

any person, or to make, alter or destroy the whole or any part of a

valuable security, or anything which is signed or sealed, and which is

capable of being converted into a valuable security, shall be punished

with imprisonment of either description for a term which may extend

to seven years, and shall also be liable to fine.”

108. A careful perusal of section 420 I.P.C. reflects that in

order to bring home the charge U/S 420 I.P.C. prosecution must

prove the following ingredients: I. That there must be deception i.e.

the accused must have deceived someone, II. That by the said

deception the accused must have induce a person, (a) to deliver any

property, or (b) to make, alter or destroy the whole or part of the

valuable security or anything which is signed or sealed and which is

capable or being converted into valuable property. III. That the

accused did so dishonestly.

109. Charge was also framed against the accused persons

U/S 468 I.P.C. which deals with committing forgery for the purpose

of cheating. Section 468 I.P.C. reads as follows: “Whoever commits

forgery, intending that the document [or electronic record] forged

shall be used for the purpose of cheating, shall be punished with

imprisonment of either description for a term which may extend to 7

years and shall also liable to fine.”

110. A careful perusal of section 468 I.P.C. shows that in

order to bring home charge U/S 468 I.P.C. prosecution must prove

that (i) the accused has committed forgery by making false

document or false electronic record, and (ii) that the accused had

done so intending that the forge document or electronic record shall

be used by him for the purpose of cheating.

41

111. Charge was also framed against the accused persons

U/S 471 I.P.C. which reads as follows: “Whoever fraudulently or

dishonestly uses as genuine any document or electronic record which

he knows or has reason to believe to be a false document, or

electronic record shall be punished in the same manner as if he had

forged the document.”

112. In order to bring home the charge U/S 471 I.P.C.

prosecution has to prove the following ingredients- (i) the accused is

using fraudulently or with dishonest intention a document as

genuine, and (ii) that the accused using that document has the

knowledge or has reason to believe that the document is a forge

one.

113. Charge has been framed U/S.409 IPC also, which deals

with criminal breach of trust by public servant, banker, merchant or

agent. A careful perusal of Section 409 IPC read with Sec.405 IPC

reflects that in order to bring home charge U/S.409 IPC prosecution

must prove that there was entrustment of property or dominion of

property upon the accused person, and the accused person

dishonestly misappropriates the same or disposes the same in

violation of prescribed procedure of law.

114. Charge was also framed against accused persons U/S

13(1)(c) r/w section 13(2) of P.C. Act. Section 13(2) of P.C. Act deals

with punishment for committing any criminal misconduct by any

public servant. As per Section 13(1)(c) of P.C. Act a public servant is

said to commit the offence of criminal misconduct, if he by corrupt

or illegal means misappropriates or allows any other person to do

upon any property entrusted to him.

42

115. Prosecution in order to bring home the charge U/S

13(1)(c) r/w section 13(2) of P.C. Act must prove that the accused is

a public servant, and the accused while discharging his duties as

public servant by corrupt or illegal means by abusing his position as

a public servant misappropriates the property or allows any other

person to do so.

116. During course of argument learned P.P. submitted that

during the year 1989, hundreds of L.P. School teachers were illegally

appointed by the then S.I. of Schools, Dhemaji against non existent

posts which were subsequently terminated by the Government in the

year 1992. Learned P.P. submitted that the terminated teachers had

approached the Hon’ble Gauhati High Court by filing several Civil Rules.

Learned P.P. submitted that the Hon’ble Gauhati High Court has upheld

the order of termination of teachers by the Government and at the

same time directed the Government to make payment to the terminated

teachers for the period for which they actually served. Learned P.P.

submitted that in compliance of the order of the Hon’ble Gauhati High

Court, the Government vide Ext.3 and Ext.4 had released more than Rs.

3 Crores to the D.I. of Schools, Dhemaji for arrear payment of the

terminated teachers. Learned P.P. submitted that after making the

necessary payment of about 280 number of terminated teachers, an

amount of Rs.84,92,802/- (Rupees Eighty four lacs ninety two thousand

eight hundred two) only remained in excess. Learned P.P. submitted

that in order to misappropriate a part of the said excess amount the

then D.I. of Schools, Dhemaji accused Jogen Bora, Khagen Deori, Head

Assistant, Sri Kamala Sharma, Jogeswar Barpatra Gohain and others

entered into criminal conspiracy and in pursuance to that conspiracy

43

filed Civil Rule No.2223/95 before the Hon’ble Gauhati High Court in

respect of twenty number of fictitious petitioners showing them as

terminated teachers and was able to obtain an order on 5.6.1995 from

the Hon’ble High Court directing the Director of Elementary Education,

Assam to examine the matter of the petitioners and if found correct to

pay their pay and allowances for the period they served within a period

of two months from the date of order. The learned P.P. submitted that a

certified copy of order dtd. 5.6.1995 passed in Civil Rule No.2223/95

was obtained and added ten more names as petitioners in the certified

copy of that order (Ext.37) and thereby forged the said document and

on the basis of the said document accused Jogen Bora, the then D.I. of

Schools, Dhemaji released payment in favour of thirty nos. of fictitious

terminated teachers on 8.6.1995 vide Ext.5 to 34. Learned P.P.

submitted that PW.19 Siba Dutta who worked in the office of D.I. of

Schools, Dhemaji and PW.4 Lalit Rajkhowa who also worked as U.D.

Assistant in the office of D.I. of Schools, Dhemaji had identified the

signatures of accused Jogen Bora in Ext.5 to Ext.34, the cheques

through which payment were made. Learned P.P. submitted that the

witness PW.28 Hareswar Das, the Scientific Expert also confirmed that

Ext.5 to Ext.34 appears the signatures of accused Jogen Bora. Learned

P.P. submitted that prosecution has examined several witnesses like

PW.5 Ashok Sharma, PW.6 Rajesh Kr. Sharma, PW.12 Anupam Deori,

PW.27 Prasanta Chetia in whose favour cheques were issued and who

deposed on oath before the Court that they never received such

cheques. Learned P.P. submitted that the accused persons prepared and

issued the cheques in favour of fictitious persons and misappropriated

the same. Learned P.P. further submitted that accused Smti. Dipika Devi

and Sri Kamala Sharma are husband and wife and accused Kamala

Sharma used to work as L.D. Assistant in the office of D.I. of Schools,

Dhemaji before his transfer to the office of D.I. of Schools, Jonai.

44

Learned P.P. submitted that accused Sri Kamala Sharma had conspired

with accused Jogen Bora and Khagen Deori (since deceased) and took

Rs.49,294/- by issuing a cheque in the name of his wife Smti. Dipika

Devi and as such both are liable U/S.120B IPC. Learned P.P. also

submitted that accused Jogeswar Barpatra Gohain was involved in

opening of fictitious bank account at UBI, Dhemaji Branch by becoming

introducer. Learned P.P. accordingly prayed to convict all the accused

persons as per the relevant provisions of law.

117. On the other hand, learned counsel for accused Jogen

Bora has submitted written argument and took the plea that the

evidence of prosecution witnesses like PW.5 Sri Ashok Sharma, PW.6 Sri

Rajesh Kr. Sharma, PW.10 Sri Khargeswar Changmai, PW.12 Sri

Anupam Deuri and PW.27 Prasanta Chetia by which prosecution

establishes the fact that cheque amounting to Rs.49,294/- were

issued against their names from the office of D.I. of Schools, Dhemaji

but their evidence also disclosed that there may be other persons of

the same name and these prosecution witnesses does not implicate

accused Jogen Borah. Learned defence counsel for accused Jogen Bora

also took the plea that the prosecution has not examined any witness to

show that there was meeting of mind of the accused persons to attract

Sec.120B IPC. Another plea taken by the learned defence counsel is that

the investigating officer admitted that he could not find out who had

obtained the certified copy of order passed by the Hon’ble High Court

dtd. 5.6.95 in Civil Rule No.2223/95 from the Hon’ble Gauhati High

Court and who had submitted the same before the office of D.I. of

Schools, Dhemaji. It is submitted that the I.O. also failed to find out who

has inserted the name of ten petitioners in addition to the existing

twenty number of petitioners in the certified copy of the said order

(Ext.37). Learned defence counsel submitted that so the ingredients of

45

Sec.468/471 IPC were missing. Learned counsel for accused Jogen Bora

also submitted that in this case the informant is himself the investigating

officer of this case being PW.31 Jagadish Sharma. Learned defence

counsel submitted that as the informant himself is the investigating

officer there cannot be any fair investigation. Learned counsel for

accused Jogen Bora also submitted that the prosecution sanction

accorded against accused Jogen Bora was accorded mechanically

without application of mind. Learned defenece counsel accordingly

prayed for acquittal of accused Jogen Bora.

118. Learned counsel for accused Smti. Dipika Devi submitted

that none of the witnesses have stated anything against accused Dipika

Devi. He submitted that the investigating officer has implicated accused

Smti Dipika Devi only because her name appears as one of the

petitioners of Civil Rule No.2223/95. Learned defence counsel submitted

that in the said Civil Rule the name of Smti Dipika Devi appears without

the name of her father or of her husband and of her address. Learned

defence counsel submitted that the present accused Smti Dipika Devi is

not the petitioner whose name appears in Civil Rule No.2223/95 and

accordingly prayed for acquittal of accused Smti Dipika Devi.

119. Learned counsel for accused Kamala Sharma submitted

that the main allegation of this case is that on 5.6.1995 the Hon’ble

Gauhati High Court passed the order in Civil Rule No.2223/95 and the

certified copy of the order was obtained on 7.6.95 and the D.I. of

School, Dhemaji issued the cheques for payment against some alleged

fictitious teachers for payment on 8.6.1995. The learned counsel

submitted that during this period from 5.6.1995 to 8.6.1995 accused

Kamala Sharma was not posted at the office of D.I. of Schools, Dhemaji

but he was posted at the office of D.I. of Schools, Jonai. Learned

46

defence counsel submitted that PW.17 Sri Tarini Mohon Gogoi as well as

DW.1 Kamal Hussain and DW.2 Haliram Chamua corroborates the

above claim and DW.2 who was working as D.I. of Schools, Jonai by

produced relevant transfer order(Ext.C) of accused Kamala Sharma

which was issued on 27.3.1990. Learned defence counsel submitted that

accused Kamala Sharma was released from the office of D.I. of Schools,

Dhemaji on 18.4.1990 vide Ext.D and accused Kamala Sharma joined as

L.D. Assistant in the office of D.I. of Schools, Jonai on 19.4.1990 (Vide

Ext.E). Learned defence counsel for accused Kamala Sharma as such

submitted that accused Kamala Sharma was not present in the office of

D.I. of Schools, Dhemaji at the time of occurrence and that he has been

falsely implicated in this case and accordingly prays for acquittal of

accused Kamala Sharma.

120. Learned counsel for accused Jogeswar Barpatra Gohain

submitted that not of the single witness has uttered a single word

against accused Jogeswar Barpatra Gohain. He also submitted that the

I.O. during investigation has not seized any bank account opening form

from the bank to show the role of accused Jogeswar Barpatra Gohain in

opening such account. Learned counsel accordingly prays for acquittal

of accused Jogeswar Barpatra Gohain .

121. Charge has been framed accused Jogen Bora , Kamala

Sharma, Smti Dipika Devi and Jogeswar Barpatra Gohain

U/S.120B/420/468/471 IPC. Separate charge has been framed against

accused Jogen Bora, Kamala Sharma and Smti Dipika Devi U/S.409 IPC

and U/S.13(2) read with Sec.13(1)(c) of P.C. Act.

122. Let us now appreciate the evidence which has been

brought into record by both the parties to see if prosecution has been

able to bring home the charges against the accused persons. The gist of

47

the allegation which the prosecution is trying to establish in this case is

that on 5.6.1995 the Hon’ble Gauhati High Court passed an order in

Civil Rule No.2223/95 in respect of twenty number of petitioners

whereby the Hon’ble Gauhati High Court directed the Director of

Elementary Education, Assam to examine the matter and if the

averments made in the petition are found to be correct then to make

payment to the petitioners for the period they served as teachers. The

case of the prosecution is that the above twenty petitioners who

approached the Hon’ble Gauhati High Court vide Civil Rule No.2223/95

were fictitious teachers, and after obtaining the certified copy of the

said order from the Hon’ble Gauhati High Court the same has been

tampered with and forged by adding the name of ten more petitioners.

The case of the prosecution is also that on 8.6.1995 the D.I. of Schools,

Dhemaji had issued cheques vide Ext.5 to Ext.34 amounting to

Rs.49,294/- each in favour of the 30 nos. of fictitious terminated

teachers and misappropriated the same.

123. Prosecution exhibited the original record of Civil Rule No.

2223/95 as Ext.63 which was forwarded by the then Joint Registrar

(Judl.II) of the Hon’ble Gauhati High Court vide Memo No.1/Record

Room dtd. 18.11.2011 vide Ext.64. The perusal of the original record of

Civil Rule 2223/95 clearly reflects that there are twenty nos. of

petitioners namely (1) Smti Dipika Devi, (2) Sri Krishna Sharma, (3)

Gobin Changmai, (4) Rajesh Sharma, (5) Deba Sharma (6) Ashok

Sharma, (7) Smti Monika Devi, (8) Smti. Annapurna Devi, (9) Ramjoy

Deori, (10) Nipen Kr. Deori, (11) Sri Anupam Deori,(12) Lukumoni

Chutia, (13) Smti. Santana Changmai, (14) Kolia Deori, (15) Mintu Deori,

(16) Chandan Sharma, (17) Prasanta Chetia, (18) Deba Kanta Sangmai,

(19) Gudunga Deori and (20) Pabitra Sonowal. In the petition filed

before the Hon’ble Gauhati High Court the address of all the petitioners

48

are shown as resident of Dhemaji, P.O., PS & District-Dhemaji but the

name of the father/husband of the petitioners are not mentioned.

Prosecution exhibited the certified copy of order dtd. 5.6.1995 passed in

Civil Rule No.2223/95 as Ext.37, which was applied on 5.6.1995 and

received on 7.6.1995. Perusal of Ext.37 reflects that the name of ten

nos. of petitioners are added in that certified copy of order apart from

the name of twenty nos. of petitioners whose names appeared in the

original record of Civil Rule No.2223/95. The newly added names in

Ext.37 are in serial no. 21. Ratneswar Doley, 22. Ranju Sarma, 23.

Lakshmi Gohain, 24. Smti. Kabita Gogoi, 25. Smti. Kumari pegu, (26)

Smti Niroda Devi, 27. Pradip Chutia, 28. Smti Renu Dutta, 29. Lilla Kanta

Chutia and 30. Deben Dutta.

124. After perusal of Ext.63, the original record of Civil Rule

No.2223/95 together with the certified copy of order dated 5.6.1995

passed in Civil Rule No.2223/95 (Ext.37) it clearly reflects that the order

of the Hon’ble Gauhati High Court is manipulated and forged vide

Ext.37.

125. We have found that prosecution examined one Sri Babul

Ch. Hazarika, Manager, United Bank of India, Dhemaji branch as PW.7

who deposed that on 18.7.1997 while he was working as manager of

UBI, Dhemaji Branch police seized from him 30 nos. of cheques vide

Ext.35 and he identified the cheques as Ext.5 to Ext.34. The evidence of

PW.7 regarding the seizure of the cheques being Ext.5 to Ext.34 vide the

Seizure list Ext.35 is duly corroborated by PW.3 Prakash Bordolai who

was working as cashier at the relevant point of time in UBI, Dhemaji

Branch. This two witnesses were not cross-examined by the defence

and as such seizure of the cheques are not disputed.

49

126. PW 4 Lalit Rajkhowa who worked as UD Assistant in the

office of D.I. of Schools, Dhemaji deposed that Ext.5 to Ext.34 were

issued from the office of D.I. of Schools, Dhemaji and the same were

written by the Head Assistant of the office of D.I. of Schools, Khagen

Deori (since deceased) and the then D.I. of Schools, Dhemaji, accused

Jogen Borah signed in all those cheques as DDO. The evidence of PW4

is duly corroborated by the evidence of PW19 Siba Dutta, another U.D.

Assistant of the office of D.I. of Schools, Dhemaji who deposed that

Ext.5 to Ext.34 the cheques were issued by the then D.I. of Schools,

Dhemaji, accused Jogen Borah

127. Perusal of Ext.5 to Ext.34 reflects that the cheques were

issued on 8.6.1995 in favour of thirty nos. of petitioners whose names

appeared in the certified copy of order (Ext.37) dtd. 5.6.1995

purportedly passed by the Hon’ble Gauhati High Court in Civil Rule

No.2223/95. The above evidence clearly proves that after tampering

and forging with the order of the Hon’ble Gauhati High Court dtd.

5.6.1995 payments were immediately made in favour of the thirty nos.

of fictitious petitioners.

128. Prosecution examined PW.5 Ashok Sarma , PW.6 Rajesh

Kr. Sharma, PW.9 Lukumoni Chutia, PW.11 Chandan Sarma, PW.12

Anupam Deori and PW.27 Prasanta Chetia whose names appears in

Ext.37 and the above witnesses have stated on oath before this Court

that they have not received any cheque ( Ext.29, Ext.5, Ext.18, and

Ext.9 etc. ) amounting to Rs.49,294/- each as they never worked as

teachers at the relevant point of time. Suggestions were given by the

defence that there were some other persons of the same name in that

locality. Suggestions are mere suggestion unless proved. The defence in

order to prove the suggestion that there were some other persons of the

50

same name in the locality has not examined any witness , as such the

suggestion of the defence in my view is not sustainable.

129. PW.4 Lalit Rajkhowa , UD Assistant of the office of D.I. of

Schools , Dhemaji in his deposition stated before this Court that Ext.5 to

Ext.34, the cheques issued from their office were written by Khagen

deori, (since deceased) the then Head Assistant of the office of D.I. of

Schools, Dhemaji and accused Jogen Bora, the then D.I.of Schools,

Dhemaji signed in all the above cheques as DDO. In cross-examination

PW.4 confirmed that at that relevant time chequebooks were in the

custody of the Head Assistant of D.I. of Schools Khagen Deori. He

denied the suggestion that the cheques were not written by accused

Khagen Deori and signed by Jogen Bora.

130. It is to be noted that the then Head Assistant of the office

of D.I. of Schools, Dhemaji, Khagen Deori (since deceased) has been

charge sheeted as accused in this case but he expired during trial for

which the case against accused Khagen Deori has been abated .

131. Prosecution examined PW.19 Sri Siba Dutta, the then U.D.

Assistant of the office of D.I. of Schools, Dhemaji who identified the

signatures of accused D.I. of Schools, Jogen Bora in Ext.5 to Ext.34 as

Ext.5(1) to Ext.34(1).

132. Prosecution examined the Forensic Science Expert Sri

Hareswar Das as PW.28. In his evidence, PW.28 deposed that he

examined the documents carefully and thoroughly and marked the

questioned items referred in this case in Q series and specimen writings

and signatures supplied for the purpose of comparison in S series and

contemporaneous writings in A series. He further deposed that he

carefully examined the questioned items and compared them with the

51

relevant standard materials from the original documents in all aspects of

handwritings, identification and detection of forgery with the necessary

scientific aids. He deposed that Ext.5 to Ext.34 are questioned cheques

which contained with marking as Q1 to Q60 and Q1(1) to Q30(1),

Q39(1) to 53(1). Ext.49 and Ext.50 contains the specimen signatures of

accused Jogen Bora wherein, in his markings S1, S1(1), S2 and S2(1)

contain. Ext.51 and Ext.52 are the documents containing specimen

writings and signatures of Sri Khagen Deori wherein in his markings S3,

S3(1), S4, S4(1), exists. PW.28 stated that Ext.38(1) to Ext.38(5) are

the pages of cashbooks containing admittedly genuine writings of Sri

Khagen Deori.Ext.38(6) to Ext.38(10) are admittedly the genuine

signatures of accused Jogen Bora in the above cash book. He deposed

that after careful examination he found that who wrote the blue

enclosed signatures stamped and marked S1, S1(1), S2, S2(1) and A6 to

A10 also wrote the red enclosed signatures similarly stamped and

marked Q31 to Q39, Q39/1, Q40 to Q53, Q53/1 and Q54 to Q60.PW.28

also deposed that the person the person who wrote the blue enclosed

writings and signatures stamped and marked S3, S3(1), S4, S4(1), A1,

A2(1), A3, A3(1), A4, A4(1), A5 and A5(1) also wrote the red enclosed

writings and signatures similarly stamped and marked Q1 to Q30, and

Q31/1, Q30(1). In cross-examination, PW.28 stated that there is no

distinct demarcation for initials and signatures by definition. As the

questioned items contains the letter form for J & B representing Jogen

Bora, they can term them as initial and also as short signature. In cross-

examination he also stated that there is a variation in certain alphabet

of a person’s writings. This variation which is a natural for everybody’s

writings are called natural variation and it is an integral part of genuine

writing. This variation cannot be termed as different.

52

133. After careful perusal of the Ext.5 to Ext.34 and the

evidence of PW.4 Lalit Rajkhowa , PW.19 Siba Dutta and the evidence of

the Forensic Expert (PW.28), we found that the evidence of these three

witnesses could not be demolished by the defence and their evidence

proves that Ext.5 to Ext.34, the cheques were signed by the then D.I. of

Schools, Dhemaji, accused Jogen Bora which were prepared by Khagen

Deori (since deceased), the then Head Assistant of D.I. of Schools,

Dhemaji. Now, the question comes into the mind of the Court as to

whether the fact proved by the prosecution that accused Jogen Bora,

the then D.I. of Schools, Dhemaji released the amount by issuing

cheques being Ext.5 to Ext.34 is sufficient to convict him or any other

accused persons in this case in respect of the offences for which charge

has been framed against them .

134. If we go through the evidence of the witnesses more

particularly the evidence of I.O. PW.31 Jagadish Sharma, we found that

PW.2 Sri Kirti Kamal Gogoi was the original complainant of this case on

the basis of which the regular enquiry was initiated and the I.O. has not

seized the original complaint in this case. We also found that the

occurrence of this case took place in the office of the D.I. of Schools,

Dhemaji during the period from 5.6.1995 to 8.6.1995 and the I.O.

during the course of investigation could not detect the person who had

obtained the certified copy of order (Ext.37) passed by the Hon’ble

Gauhati High Court on 5.6.1995 in Civil Rule No.2223/95. The I.O. also

could not detect whohas tampered with the order of the Hon’ble

Gauhati High Court by adding the name of ten more petitioners in that

certified copy of order (Ext.37). We also found that the investigating

officer during his course of investigation could not detect who had

submitted the certified copy of order in the office of D.I. of Schools,

Dhemaji . The very basis of the prosecution case was that the order of

53

the Hon’ble Gauhati High Court was tampered and forged with vide

Ext.37 and on the basis of the forged document the thirty nos. of

cheques were issued in favour of fictitious terminated teachers. As

discussed above we have found that the prosecution, more particularly

the investigating officer, could not produce any evidence to show as to

who has tampered or fabricated the certified copy of order (Ext.37) of

the Hon’ble Gauhati High Court. As such it appears that there is no

material to attract Sec.468 IPC against any of the accused persons.

135. The case of prosecution is also that accused Jogen Bora

had released the cheques on the basis of tampered and forged

documents (Ext.37). However while analyzing the evidence as discussed

above, we have found that there is no evidence to show that accused

Jogen Bora at the time of releasing the cheques was aware that Ext.37

was a forged and tampered document. None of the witnesses have

stated that any of the accused persons were aware that the Ext.37 was

forged. As such there is no material against any of the accused person

to show that the accused persons were aware that the Ext.37 was a

false document and they used the same as genuine inspite of knowing

the same as tampered and forged. As such the ingredient of Sec. 471

IPC is missing against all the accused persons.

136. While analyzing the evidence it has come into record

from the prosecution witnesses as well as from the defence witnesses

that accused Kamala Sharma during the relevant period between

5.6.1995 to 8.6.1995 was not working in the office of D.I. of Schools,

Dhemaji but he was working in the office of D.I. of Schools,

Jonsai.PW.17 Tarinmi Mohon Gogoii as well as DW.1 Kamal Hussain ,

the then D.I. of Schools, Dhemaji and DW.2 Haliram Chamua, the then

D.I. of Schools, Jonai have categorically deposed that accused Kamala

54

Sharma was transferred from the office of the D.I. of Schools, Dhemaji

to the office of the D.I. of Schools, Jonai vide order dated 27.3.1990

(Ext.C) and accused Kamala Sharma joined in the office of the D.I. of

Schools, Jonai on 19.4.1990 (Ext.E). DW.2 Haliram Chamua, D.I. of

Schools, Jonai also deposed that accused Kamala Sharma since the date

of his joining in the office of D.I. of Schools, Jonai has been working in

the same office till the date of his deposition (I.e. 12.1.2007). The

evidence of PW.17 along with the evidence of DW.1 and DW.2 clearly

established that accused Kamala Sharma was not working in the place of

occurrence i.e. the office of D.I. of Schools, Dhemaji at the relevant

period, i.e. from 5.6.1995 to 8.6.1995. Moreover none of the witnesses

have stated any incriminating materials against accused Kamala Sharma

in respect of any of the charge that has been brought against him.

Accordingly, accused Kamala Sharma is entitled for acquittal in respect

of all the charges.

137. While going through the entire evidence we have found

that the prosecution has not brought any material against accused Smti

Dipika Devi. There is no material in the record except the appearance of

the name of Smti. Dipika Devi as one of the petitioners of Civil Rule

No.2223/95. As such accused Smti Dipika Devi is also entitled for

acquittal in respect of all the charges.

138. While going through the evidence and the materials

brought into record, we have also found that the prosecution evidence is

completely silent in respect of accused Jogeswar Barpatra Gohain .

None of the witnesses including the bank witnesses have stated

anything against accused Jogeswar Barpatra Gohain. As such accused

Jogeswar Barpatra Gohain is also entitled for acquittal in respect of all

the charges.

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139. While analyzing the above evidence we have found that

accused Jogen Bora had issued the cheques being Ext.5 to Ext.34. We

have also found that prosecution has not been able to bring any

ingredient to attract Sec. 468 IPC and Sec.471 IPC against accused

Jogen Bora for which accused Jogen Bora is entitled for acquittal in

respect of charge U/S.468/471 IPC.

140. While going through the evidence that has been brought

into record by the prosecution, we found that prosecution has not been

able to brought into record as to who had encased the cheques issued

by accused Jogen Bora vide Ext.5 to Ext.34. There is no evidence to

show that accused Jogen Bora being public servant has misappropriated

the said amount which has been released by him vide Ext.5 to Ext.34.

141. PW.21 Sri Keshab Ch. Phukan, retired Manager of United

Bank of India, Dhemaji Branch has deposed that Ext.5 to Ext.34, were

the cheques issued by D.I. of Schools, Dhemaji in the name of various

teachers mentioned in the cheques and the said cheques were

encashed by the respective persons. He further stated in cross-

examination that the persons who had encashed the cheques had their

account in his Bank and all these cheques were Account Payee

Cheques. He also stated in cross-examination that the persons who had

withdrawn the money put their signatures on the backside of the

cheques. There is nothing to disbelief the evidence of PW21 who is an

independent witness.

142. The evidence of PW.21 reflects that the cheques being

Ext.5 to Ext.34 were encashed by persons who had account in their

Bank. Prosecution has not led any evidence to show that the cheques

were encashed by accused Jogen Bora by himself or by through any

other persons. It appears that there is lack of ingredient to attract

56

Sec.409 IPC against accused Jogen Bora. The above evidence also

shows lack of ingredient to attract Sec.13(2)/13(1)(c) of Prevention of

Corruption Act, 1988 against accused Jogen Bora . As such accused

Jogen Bora is acquitted of the charge U/S.409 IPC and

U/S.13(2)/13(1)(c) of PC Act.

143. While going through the evidence we have found that

accused Jogen Bora who was working at the relevant point of time as

D.I. of Schools, Dhemaji had dominion over Government money which

was released by the Government for payment towards terminated

teachers vide Ext.3 and Ext.4. PW.1 Sri Rajani Phukan in his evidence

has deposed that Ext. 3 is the Allotment of Fund order for payment of

arrear pay to the irregular teachers and Ext.3(1) is the signature of the

then Director, Elementary Education, Assam. He also exhibited another

allotment of fund order for payment of arrear of pay and allowances to

the irregular teachers as Ext.4. Accused Jogen @ Jogendra Bora had

dominion over the Govt. money being D.I. of Schools, Dhemaji cannot

be disputed on the ground that he had issued cheques being Ext.5 to

Ext.34 from the Account of D.I. of Schools, Dhemaji being Account No.

CD 155 maintained at United Bank of India, Dhemaji Branch and those

cheques were duly encashed . Now, the question arise before this Court

whether accused Jogen Borah @ Jogendra Bora is guilty of offence

U/S.420 IPC for cheating the Govt. by paying a total sum of

Rs.14,78,820/- (Rupees fourteen lacs seventy eight thousand eight

hundred twenty) only as salary in favour of 30 nos. of fictitious

terminated teachers.

144. There cannot be any dispute that accused Jogen @

Jogendra Bora had issued the cheques (Ext.5 to Ext.34) on the basis of

certified copy of order dated 5.6.1995 issued by the Hon’ble High Court

57

in Civil Rule No.2223/95. A careful perusal of the said order dated

5.6.1995 passed by the Hon’ble High Court reflects that the Hon’ble

Gauhati High Court disposed off the said Civil Rule with a direction to

the Respondent No.2, the Director of Elementary Education, Assam,

Guwahati to examine the matter and if the averments made in the

petition are found correct the petitioners shall be paid their pay and

allowances for the period they served within a period of two months

from the date of receipt of this order. The order of the Hon’ble Gauhati

High Court is clear and specific that the Director of Elementary

Education, Assam, Guwahati would examine the correctness of the

averment made by the petitioners in Civil Rule No.2223/95 and if the

Director , Elementary Education, Assam finds the averment correct then

he would make payment to the petitioners within a period of two

months from receipt of the said order. In this case, it is clear that the

certified copy of the said order was obtained on 7.6.1995 and accused

Jogen @ Jogendra Bora issued the cheques for payment in favour of

thirty nos. of petitioners (fictitious petitioners) on 8.6.1995. Accused

Jogen @ Jogendra Bora clearly showed his malafide intention by

violating the order of the Hon’ble Gauhati High Court by not waiting for

any direction to be received from the Director, Elementary Education,

Assam, Guwahati . The act of accused Jogen Bora clearly reflects his

malafide intention to release the amount in a haste manner.

145. While going through the entire evidence that has been

brought into record , we found that it is the investigating officer (PW.31

Jagadish Sharma) who had conducted regular enquiry and submitted

report. It is PW.31 who lodged the FIR after completion of the regular

enquiry and it is PW.31 who was entrusted with the investigation of this

case and completed the entire investigation and thereafter submitted

Charge sheet. It shows that PW.31 was the Inquiry officer, informant as

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well as the investigating officer of this case. It is PW.31 Sri Jagadish

Sharma who has done entire things from regular enquiry to submission

of charge sheet in this case. There is no other police officer who has

investigated this case.

146. The Hon’ble Supreme Court in the case between

State of Haryana –vs- Bhajanlalreported in AIR 1992 SC 604

regarding Section17 of Prevention of Corruption Act observed as

follows:

“It has been ruled by this Court in several decisions that Sec.5-A

of the Act is mandatory and not directory and the investigation

conducted in violation thereof bears the stamp of illegality, but that

illegality committed in the course of investigation does not affect the

competence and jurisdiction of the Court for trial and where the

cognizance of the case has in fact been taken and the case is proceeded

to termination, the invalidity of the preceding investigation does not

vitiate the result unless miscarriage of justice has been caused thereby.

However, if any breach of the said mandatory proviso relating to

investigation is brought to the notice of the Court at an early stage of

trial, the Court will have to consider the nature and extent of violation

and pass appropriate order as may be called for rectify the illegality and

cure the defects in the investigation. “

Sec.17 of the Prevention of Corruption Act relates to

person or officer who are authorized to investigate offences under the

Prevention of Corruption Act.

147. The Hon’ble Supreme Court in the case of Mohon

Lal –vs- State of Punjab reported in (2018) AIR SC 3853 has

dealt with the question of whether the informant can be the

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investigating officer of the same case. The three Judges Bench of

the Hon’ble Supreme Court has discussed the case law of

Bhagaban Singh –vs- State of Rajasthan (1976) 1SCC 15,

Megha Singh –vs- State of Haryana (1996) 11SCC 709,

Inspector of Police, Narcotic Intelligence Bureau –vs- Rajangan

(2010) 15 SCC 369, State of Punjab –vs- Baldev Singh (1999) 6

SCC 172, Surendra –vs- State of Haryana (2016) 4 SCC 617,

Nausad –vs- State of Kerela (2000) 1 KLT 785, Kedar –vs- State

of kerela (2001) Crl. LJ.4044 and observed in para 25 of the said

judgment as follows:

25. “In view of the conflicting opinions expressed by different two

Judge Benches of this Court, the importance of a fair investigation from

the point of view of an accused as a guaranteed constitutional right

under Article 21 of the Constitution of India, it is considered necessary

that the law in this regard be laid down with certainty. To leave the

matter for being determined on the individual facts of a case, may not

only lead to a possible abuse of powers, but more importantly will leave

the police, the accused, the lawyer and the Courts in a state of

uncertainty and confusion which has to be avoided. It is therefore held

that a fair investigation, which is but the very foundation of fair trial,

necessarily postulates that the informant and the investigator must not

be the same person. Justice must not only be done, but must appear to

be done also. Any possibility of bias or a predetermined conclusion has

to be excluded. This requirement is all the more imperative in laws

carrying a reverse burden of proof.”

148. A careful perusal of the judgment passed by the Divisional

Bench of the Hon’ble Supreme Court of India in Mohon Lal –vs- State of

Punjab, it appears that for fair investigation which is the foundation of a

60

fair trial postulates that the informant and the investigating officer can

not be the same and one person. The Judgment of the Hon’ble Supreme

Court of India reflects that if the informant become the investigating

officer there is possibility of biasness or a predetermined conclusion. In

the present case in our hand, it is PW.31 Jagadish Sharma who not only

conducted the regular enquiry against the accused persons but also

submitted the FIR, conducted the investigation and ultimately submitted

Charge sheet against the accused persons. The Hon’ble Supreme Court

observed that there is possibility of biasness and pre-drawn conclusion if

the informant and the investigating officer is the same and one person.

As in this case the informant and the investigating officer is the same

and one person, accused Jogen Borah deserved benefit of doubt and as

such accused Jogen Bora is acquitted of the charge U/S.420 IPC on

benefit of doubt. As all the accused persons are acquitted, Sec.120 IPC

has become redundant and all the accused persons are acquitted of this

section also.

149. In view of the above discussions, accused Kamala Sharma,

Smti. Deepika Devi, and Sri Jogeswar Barpatra Gohain are acquitted of

the charge U/S.120B/420/468/471 IPC. Accused Jogen @ Jogendra

Bora, Sri Kamala Sharma and Smti. Deepika Devi are also acquitted of

the charge U/S.409 IPC and U/S.13(2) read with Sec.13(1)(c) of

Prevention of Corruption Act, 1988. Accused Jogen Bora is also acquitted

of the charge U/S.120B/468/471 IPC.

150. Accused Jogen Bora @ Jogendra Bora is acquitted of the

offence U/S.420 IPC on benefit of doubt.

151. The accused persons are set at liberty forthwith. However

their bail bonds shall remain in force for next 6 months as per provisions

of section 437A Cr.P.C.

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152. Original documents, articles seized during the course of

investigation be returned to the department/ person concerned in due

course of time.

153. Judgment is delivered in the open Court under given my

hand and seal of this Court on this 14th day of May, 2019 at Guwahati.

Dictated & corrected by me.

Special Judge, Assam. Special Judge, Assam.

Guwahati. Guwahati.

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A N N E X U R E S

Name of Exhibits(PROSECUTION)

1. Ext.1 is the Seizure list.

2. Exts.2 is the Counterfoil of Cheque Book.

3. Ext.3 and Ext.4 are the allotment order of fund for payment of arrear pay & allowances to the irregular teachers.

4. Ext.5 to Ext.34 are the cheques.

5..Ext.35 and Ext.36 are the Seizure lists.

6. Ext.37 is the certified copy of order of High Court in Civil Rule No.2223/95.

7.Ext.38 is the subsidiary cashbook.

8.Ext. 39 is an application filed by PW.10 to Sub- Inspector of Schools

9. Ext.40 is the seizure Memo.

10. Ext.41 is the Forwarding Letter (under objection).

11. Ext.42 is the Prosecution Sanction Order against accd. Khagen Deori.

12. Ext.43 is theProsecution Sanction Order against accd. Kamala Sarmah

13. Ext.44 is the Prosecution Sanction Order against accd. Udayaditya Phukan.

14. Ext.45 is the Prosecution Sanction Order against accd. Jogendra Bora.

15. Ext.46 is the Sanction Order accorded against Smti. Deepika Devi.

16. Ext.47 is the Forwarding Letter of Dr. K. Goswami, the then Director, FSL, Assam.

17. Ext.48 is the opinion of PW.28 Hareswar Das, Dy. Director, FSL, Assam, Guwahati.

18.Ext.49& Ext.50 are the Specimen signatures of accused Jogendra Bora.

19.Ext.51& Ext.52 are the Specimen writings and signature of accused Khagen Deori.

20. Ext.53 is the document containing reasons of

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opinion of PW.28.

21. Ext.54 is the Forwarding letter of S.P, C.M’s Special

Vigilance Cell, Assam, Guwahati.

22. Ext.55 is the Certificate issued by PW.29 Deben

Konwar, retired Headmaster Goal- Chapari MV

School.

23. Ext.56 is the Charge sheet and Ext.56(1) is the

is the signature of PW.30 Nabab Imdad Hussain.

24. Ext.57 is the ejahar lodged by PW.31 Jagadish

Sarmah .Ext.57(1) is the signature of PW.31.

25. Ext.58 is the printed form of FIR,Ext.58(1) is the signature of PW.31.

26. Ext.59 is the file relating to appointment of

Irregularity of teacher against the non-sanction

Posts.

27. Ext.60 is the list of irregular teachers appointed

against the non-sanction post with entire office

record.

28. Ext.61 is the register relating to Court cases Volume No.II seized by PW.31 (I.O) maintained in the office Of the D.I. of Schools, Dhemaji.

29. Ext.62 are the undertakings given by the teachers

Submitted in the D.I. office,Ext.62(A) are writing portion.

30. Ext.63 is the record of Civil Rule No.2223/95/

31. Ext.64 is the forwarding letter of CW.1 Sri Mridul Kr. Kalita, the then Jt. Registrar (Judl.II), Gauhati High Court.

Name of prosecution witnesses:

PW.1 Sri Rajani Phukan.

PW.2 Sri Kiriti Kamal Gogoi.

PW.3 Sri Prakash Bordolai.

PW.4 Sri Lalit Rajkhowa.

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PW.5 Sri Ashok Sharma.

PW.6 Sri Rajesh Kr. Sharma.

PW.7 Sri Babul Ch. Hazarika.

PW.8 Sri Lok Nath Gogoi.

PW.9 Sri Lukumoni Chutia.

PW.10 Sri Khargeswar Changmai.

PW.11 Sri Chandan Sarmah.

PW.12 Sri Anupam Deuri.

PW.13 Sri Surjya Chutia.

PW.14 Sri Debajyoti Baruah.

PW.15 Sri Bolin Lahon.

PW.16 Sri Sarat Ch. Hazarika.

PW.17 Sri Tarini Mohon Gogoi.

PW.18 Smti Aimoni Lahon.

PW.19 Sri Siva Dutta.

PW.20 Sri Hiranya Ch. Das.

PW.21 Sri Keshab Ch. Phukan.

PW.22 Sri Trailakya Nath Konwar.

PW.23 Sri Hemanta kr. Sarmah.

PW.24 Sri Dinesh Ch. Barman.

PW.25 Sri Mohendra Bharali.

PW.26 Sri Budheswar Boro.

PW.27 Sri Prasanta Chetia.

PW.28 Sri Hareswar Das.

PW.29 Sri Deben Konwar.

PW.30 Sri Nabab Imdad Hussain.

PW.31 Sri Jagadish Sarmah (I.O.)

CW.1 Sri Mridul Kr. Kalita.

NAME OF DEFENCE WITNESSES :

DW.1 Md. Kamal Hussain.

DW.2 Sri Haliram Chamua.

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DW.3 Sri Jogantar Deori.

DW.4 Sri Haren Ch. Kalita.

DW.5 Sri Nirmal Konwar.

DEFENCE EXHIBITS :

1. Ext.A is the letter vide Memo No. DEL/Esstt-DIS/2/89-90/3121-27 dtd.27.3.1990 .

2. Ext.B is the summon.

3. Ext.C is the transfer order of Kamala Sarma and Ratneswar Das vide memo No.DEL/Esstt.DIS/82/89-90/3121-27 dtd.27.3.90.

4. Ext.D is the release order of Kamala Sarmah vide memo No.E-1/88/2937-39 dtd.18.4.90 issued by DI of Schools, Dhemaji.

5. Ext.E is the Joining Report of Kamala Sarmah on 19.4.90.

6. Ext.F is the undertaking of Anupam Deori.

Special Judge, Assam.

Guwahati.