Azizul Hoque Vs the State of Assam

The petitioner, by way of instituting the present revision petition, has assailed the Judgment and Order dated 06.04.2013, passed by the learned Chief

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Judicial Magistrate, Bongaigaon, in GR Case No. 207/2008, convicting the appellant, herein, under Sections 420/34 IPC and sentencing her to undergo Simple Imprisonment for 2 (two) months, and to payment of a fine of Rs. 7,000/-, in default, to undergo further Simple Imprisonment for 2 (two) more months, for the offence under Sections 420/34 IPC, and the Judgment and Order dated 09.09.2013, passed by the learned Additional Sessions Judge (FTC), Bongaigaon, in Criminal Appeal No. 20(2)/2013, whereby the appeal was dismissed, upholding the Judgment of conviction passed by the learned trial Court.

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The prosecution case in brief is that the petitioner, herein, along with other accused had assured the informant, Khitish Chandra Mandal, to secure a job for him in the Railway Department, on payment of Rs. 50,000/-. On 26.03.2008, at Mahabirsthan, it was projected that the accused persons had taken Rs. 13,000/from the informant and had assured him of the appointment letter being handed over to him on 04.04.2008, on payment of the rest amount. The accused persons had also given to the informant, a medical fitness certificate. On 04.04.2008, when the informant, along with his brother, Gaurang Mandal had gone to Tuniapar for making payment of the rest amount, the accused persons, including the petitioner, herein, had come there for receiving the payment of the rest amount. While the accused persons were talking over telephone with one Hitesh Sharma and Majibur Rahman, regarding the appointment letter, the Police had apprehended the accused persons. On 04.04.2008, the informant had lodged a written ejahar to that effect, before the Officer-In-Charge, North Bongaigaon Police Outpost and the same was, thereafter, forwarded to the Bongaigaon Police Station.

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3.1. On conclusion of the investigation, a charge sheet was laid by the Police under Sections 420/34 IPC, against the accused persons, including the petitioner, herein. The petitioner, herein, appeared before the learned Trial Court. A charge under Sections 420/34 IPC was framed against the petitioner and other accused persons, sent up for trial. The petitioner, herein, had, on the charge being read over to him, pleaded not guilty and had claimed to be tried. Accordingly, a trial ensued.

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3.2. During the trial, the prosecution had examined 7 (seven) witnesses as prosecution witnesses, including the Investigating Officer. Thereafter, the petitioner, herein, was examined under Section 313 CrPC. The learned Trial Court, on conclusion of the trial, upon appreciating the evidences coming on record, was pleased vide Judgment dated 06.04.2013, to convict the petitioner, herein, under Sections 420/34 IPC. On such conviction, the petitioner, herein, was sentenced to undergo Simple Imprisonment for 2 (two) months, along with payment of a fine of Rs. 7,000/- (Rupees Seven Thousand Only), in default, to undergo further Simple Imprisonment for 2 (two) more months, for the offence under Sections 420/34 IPC.

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3.3. Being aggrieved by his conviction by the learned Trial Court, the petitioner, herein, and one Makibur Rahman assailed the same, by way of instituting a Criminal Appeal, being Criminal Appeal No. 20(2)/2013, before the Court of the learned Sessions Judge (FTC), Bongaigaon. The learned Appellate Court, upon considering the materials available on record, was pleased vide Judgment and Order dated 09.09.2013, to dismiss the appeal, upholding the conviction of the appellants, therein, including the petitioner, herein.

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3.4. Being aggrieved, the petitioner has instituted the present revision.

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4. The learned Trial Court, upon considering the evidences coming on record, had drawn the following conclusions:-

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“ 14. The fact of the case remains that the accused persons facing trial and the accused persons namely Hamed Ali and Khagen Sharma and Majibur Rahman assured the informant that they would get him appointed in railway department on payment of Rs.50,000/-. In pursuance of the aforesaid assurance on 26.03.2008 at 12:00 Noon at Mahabirsthan he made the payment of Rs.13, 000/- and the rest amount was decided to be paid on 04.04.2008. As per assurance the appointment letter had to be delivered on payment of the rest amount of money. From the cross-examination of the informant, Sri Khitish Mandal marked as PW1 it appear that at the time of making payment of Rs.13, 000/- on 26.03.2008 one Jagannath Sarkar was present. It has been submitted by the Ld. Defence Counsel that non-examination of the Sri Jagannath Sarkar is fatal to the prosecution case. The investigating officer marked as PW7 had admitted in his cross-examination that he did not examine Sri Jagannath Sarkar. Considering the nature of case, I am of the opinion that for nonexamination of Jagannath Sarkar the prosecution case cannot be totally brushed aside. From the evidence of PW2 it appears that the informant gave a sum of Rs.13,000/- to the accused Azizul Haque on 26.04.2008. From his evidence it appears that prior to 04.04.2008 accused Azizul Haque received a sum of Rs. 13,000/- from the informant for getting appointment in railway department. Evidence of the PW3 also shows that prior to apprehending of the accused persons facing trial they took Rs.13, 000/- from the informant for giving him appointment. From the evidenced of PW4 it appears that he came to know that some people had received some money from the informant for giving him appointment and they had come for taking the rest amount.

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15. The core question the Court is to ascertain whether the accused persons dishonestly induced the informant to deliver a sum of Rs.13, 000/- on 26.03.2008 to them as advance. It has been submitted by the Ld. Advocate appearing on behalf of the accused persons facing trial that the cross-

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examination of PW1 clearly shows that the sum of Rs. 13,000/- was received by one Hamed Ali on 26.03.2008 from and as such the accused persons facing trail cannot be fastened with the section 420/34 IPC. There is clear and unchallenged evidence on record showing that on 26.03.2008 the accused persons facing trial and the accused persons namely Hamed Ali and Majibur Rahman met the informant and at the time of payment of Rs 13,000/- the accused persons facing trial were present. Hence it can be presumed safely that the accused persons facing trial took part in the alleged occurrence taken place on 26-3-2008. It is pertinent to mention that the Court during the trial took cognizance U/S.420/34 IPC against the Majibur Rahman and Hamed Ali @ Haren Sharma also. As the prosecution failed to furnish communicating address the newly implicated accused persons under section 319 CrPC, the case against them was filed declaring them as absconders. In view of the discussion made above, I find no force in the submission made by the Ld. Defence Counsel.

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18. PW7 the Investigating Officer has stated in his testimony that on call given by the informant over mobile phone the accused person facing trial came to Tuniapar and on being identified by the informant he arrested them. In contrary evidence of the informant marked as PW1 is silent that on his call given through mobile phone the accused persons facing trial came to Tuniapar and the police arrested them there. From the evidence of PW1 to PW3 it appears that Rs 13000/- was paid on 26-03-2008. Evidence of PW4 and PW5 it appears that prior to the apprehending of the accused persons facing trial. From the evidence of PW4 and PW6 it appears that a part payment was made for the purpose of getting appointment prior to the occurrence taken place on 04-042008. According to PW5, the informant informed him that the accused persons facing trial took Rs.25,000/- from him in advance in the name of appointment.

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19. From the evidence of PW3 to PW6 it appears that the accused persons came on 04.04.2008 to Bongaigaon for taking of rest amount from the informant

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as scheduled. According to the Section 8 of the Indian Evidence Act motive, preparation and pre or post conduct of any party come within purview of relevant facts. It is evident that the accused persons gave the informant a medical fitness certificate marked as Ext A. Even if we admit that allegations in the complaint do make out a dispute, still it ought to be considered that the same is merely a breach of contract and the same cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction. It is not disputed that M-ExtA was given by the accused person Hamed Ali @Haren Sarma. It shows that it was issued on 25.03.2008 by Chief Personal Officer, NF Rail, Maligaon directing Chief Medical Officer to examine the informant on 26.03.2008 and the Chief Medical Officer, NF Railway on 26.03.2008 prepared his report on it. There is no evidence on record shows that the informant attended medical test conducted by the Chief Medical Officer, NF Railway, Maligaon. His cross-examination shows that he was not allowed to meet the Medical Officer who prepared his medical fitness certificate. Apart from this, evidence of PW2 shows that he and the informant approached a Railway Officer who opined that M-Ext A is fake one. It can be presumed safely that the accused persons used M-Ext A for causing the informant fraudulently to deliver Rs 13,000/- to them.

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20. It is evident that PW2 is the brother of the informant and PW3 is the brother-in-law of the informant. They were not present with the informant on 26.03.2008 while the accused persons met him and the transaction of Rs. 13,000/- was made. Of course the entire prosecution case in respect of the occurrence took place on 26.03.2008 rests on the evidence of the informant. There is no evidence on record showing that there is/was any enmity between the informant and the accused persons. The occurrence taken place on 04.04.2008 is highly related with the occurrence taken place on 26.03.2008. There is corroborative evidence on record showing that the accused persons facing trial were apprehended on 04.04.2008. Considering all aspects, I find no way to discard the evidence of PW1 that the accused person caused him fraudulently to deliver Rs. 13,000/- to them.”

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On perusal of the said conclusions drawn by the learned Trial Court, in the light of the evidences coming on record, during the trial, this Court is of the considered view that the conclusions so drawn by the learned Trial Court, extracted, hereinabove, are not erroneous. No infirmity has been found in the said conclusions drawn by the learned Trial Court. Accordingly, the conviction of the petitioner, herein, under Sections 420/34 IPC, would not call for any interference.

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Having drawn the said conclusions, this Court would now examine the conclusions drawn by the learned appellate Court, vide the Judgment and Order dated 09.09.2013. The appellate Court had, in the said Judgment, considered the grounds as urged by the petitioner, herein, before it. The learned Appellate Court upon discussing the evidences on record, had drawn the following conclusions:-

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“ 9. As per evidence of PW-1 and PW-2 they came to know that the medical fitness certificate, is a forged one. Then the complainant and his Brother took the help of the police and captured the accused persons 4.4.08. It is evident from the testimony of PW-1 that Azizul Hoque and Makibur Rahman were also present along with one Hamed Ali alias Haren Sarma and Mojibur Rahman at the time of transaction and delivery of medical certificate (Material Exhibit-A). From this piece of evidence it is established that accused persons in furtherance of their common intention made a plan to deceive the complainant and they dishonestly induced the complainant to deliver Rs. 13,000/- to them. This being the position accused persons can be roped with the aid of section 34/IPC and it hardly matters who has received the payment. It is evident that element of deception was very much present in the mind of ali accused persons from the inception., Ld. Trial Court in para fifteen(15) and para nineteen (19) of the Judgement has appreciated the evidence in its proper perspective and arrived at just decision.

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10. Now incident of 4.4.08 is the continuation of incident dated 16.3.08 and PW-2, 3, 4, 5, 6, are the witnesses of the incident of 4.4.08 Defence has failed to shake the evidence of PW-1, the complainant, regarding the incident of 26.3.08 and thus it is established that accused persons in further of their common intention dishonestly induced the complainant to deliver Rs. 13,000/to them and accused persons cheated the complainant by giving him a forged medical certificate on 26.3.08.”

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The said conclusions drawn by the learned Appellate Court are found to be supported by the evidences coming on record in the matter, during the trial. No infirmity is found by this Court, with regard to the conclusions drawn by the learned appellate Court.

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In view of the said conclusions drawn by this Court with regard to the conclusions drawn in the matter by the learned Trial Court as well as Appellate Court, this Court upholds the conviction of the petitioner, herein.

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Having drawn the said conclusions, this Court finds that the incident alleged in the matter had occasioned on 26.03.2008, followed by the incident occasioning on 04.04.2008, 17 (seventeen) years have been found to have elapsed, since the date of occasioning of the incident alleged against the petitioner in the proceedings involved in the matter. The learned trial Court, while proceeding to sentence the petitioner, herein, had not considered the provisions of the Probation of Offenders Act, 1958, in its proper perspective and by considering the nature of the offence alleged against the petitioner, herein, had proceed to sentence the petitioner, as noticed hereinabove. It is found that the petitioner, herein, had been litigating the matter since the last 19 years initially, before the Trial Court, and, thereafter, before the Appellate Court and

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presently, in the instant criminal revision proceedings, before this Court. It is also found that the informant in the matter had also sought to make unlawful gain for himself by trying to procure an employment in an illegal manner.

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In view of the long lapse of time occasioning since the date of occurrence of the offence, the fact that the petitioner, herein was litigating the matter since the last 19 years at various forums, and also the role of the informant in the matter, this Court is of the opinion that this is a fit case, wherein the petitioner is entitled to be extended the benefits under the provisions of the Probation of Offenders Act, 1958.

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Accordingly, for the reasons recorded hereinabove, it is directed that the petitioner be given the benefit under the provisions of the Probation of Offenders Act, 1958, and accordingly, the sentence imposed upon him by the learned trial Court, is modified to that effect and it is provided that instead of sending him to jail, he be given the benefits under Section 4 of the Probation of Offenders Act, 1958. However, the sentencing towards payment of fine of Rs. 7,000/-, in default, to undergo Simple Imprisonment for 2 (two) months, as passed by the learned Trial Court, is not interfered with and the petitioner is required to pay the same.

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Accordingly, it is directed that the petitioner, herein, will file 2 (two) sureties to the tune of Rs. 20,000/- (Rupees Twenty Thousand) Only each, along with a personal bond before the learned trial Court, i.e., the Court of the learned Chief Judicial Magistrate, Bongaigaon, and undertake to the effect that the petitioner shall maintain peace and good behaviour during the period of 1 (one) year from the date of filing of the bond. The aforesaid bond be filed by the petitioner, within a period of 1 (one) month from today. The petitioner shall

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also, along with submission of the bond, deposit the fine amount, as directed, hereinabove.

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With the above observations and directions, the present revision petition stands disposed of.

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Send down the records to the learned trial Court, along with a copy of this Judgment and Order, for information and necessary action.

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JUDGE

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Azizul Hoque v. the State of Assam

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Azizul Hoque v. the State of Assam

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