Gauhati High Court
Jol Bahar Sheikh vs Central Bureau Of Investigation on 30 March, 2026
Page No.# 1/13
GAHC010234972013
2026:GAU-AS:5357
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./304/2013
JOL BAHAR SHEIKH
S/O LT. ROHIMUDDIN SHEIKH, C/O MOKSHED ALI MAULABI,
VILL.NARABARI, P.O. and P.S.KOKRAJHAR, DIST. KOKRAJHAR, ASSAM.
VERSUS
CENTRAL BUREAU OF INVESTIGATION
ASSAM.
Advocate for the Petitioner : MS.A A LASKAR, MS.M KONCH,MR.S ISLAM,MR.A
CHOUDHURY
Advocate for the Respondent : PP, ASSAM, ,,
BEFORE HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR For the Appellant : Mr. A Choudhury For the Respondent : Ms. M Kumari Date of Hearing : 05.12.2025 Date of Judgment : 30.03.2026 Page No.# 2/13 JUDGMENT AND ORDER (CAV) Heard Mr. A Choudhury, learned counsel for the appellant and Ms. M Kumari, learned Retainer counsel, CBI for the respondents.
2. The present criminal appeal has been instituted assailing the judgment and order dated 12.09.2013, passed by the Court of learned Special Judge, CBI, Assam in Special Case No. 03/2011, convicting the appellant, herein, under Section 477A IPC, read with Section 13(2) and 13(1)(C) of the Prevention of Corruption Act, 1988 (as amended) and sentencing him to undergo Rigorous Imprisonment for 1 (one) year for the offence under Section 477A IPC and further, to undergo Rigorous Imprisonment for 1 (one) year with fine of Rs.1,000/-, in default, to undergo further Rigorous Imprisonment for 2 (two) months for the offence under Section 13(2) read with Section 13(1)(C) of the Prevention of Corruption Act, 1988. Both the sentences were to run concurrently.
3. The prosecution case in brief is that on 28.12.2010, Sh. T. D. Saha, the then Superintendent of Post Offices, Goalpara Division, Dhubri, lodged an FIR with the Central Bureau of Investigation, Anti Corruption Bureau, Guwahati, alleging, therein, that the appellant, while functioning as Sub-Post Master at Sukchar Sub-Post Office under Dhubri Head Post Office in Goalpara Postal Division, w.e.f. 01.10.2008 to 25.06.2010, had misappropriated public money from the Savings Account of Sakad Ali Mandal, Shaju Ahmed, Md. Kalam and Jahanara Khatun, amounting to Rs.1,20,400/-.
Accordingly, on receipt of the said FIR, the same was registered and Page No.# 3/13 endorsed to one Sh. N. Mukherjee, SI of Police, CBI, ACB, Guwahati for investigation.
On completion of investigation, sufficient materials having come on record implicating the petitioner to the charges leveled against him, a charge-sheet came to be submitted against the appellant, herein, under Sections 409/467/471/477A IPC, read with Section 13(2)/13(1)(c) of the Prevention of Corruption Act, 1988.
In the charge-sheet, it was disclosed that the appellant, herein, had fraudulently misappropriated a sum of Rs.31,400/- from the SB Account No. 552692 of one Md. Kalam on 25.06.2010; an amount of Rs.50,000/- was misappropriated by the appellant from the SB Account No. 554635 of Sakad Ali Mandal on 25.06.2010; a sum of Rs.19,000/- was misappropriated by the appellant from the SB Account No.553815 of one Shaju Akand and a sum of Rs.20,000/- was misappropriated by the appellant from the SB Account No.551927 of Jahanara Khatun on 25.06.2010.
On appearance of the accused appellant, formal charge under Sections 467/471/477A IPC read with Section 13(2)/13(1)(c) of the Prevention of Corruption Act, 1988 was framed against the appellant and the same, on being read over and explained to him, he having pleaded not guilty and claimed to be tried, a trial ensued in the matter.
The prosecution, in support of its case, had examined 17 witnesses, including the Investigating Officer. One Court witness was also examined in the case.
The statement of the appellant was recorded under Section 313 Cr.P.C. and Page No.# 4/13 therein, he had denied misappropriation of any money from any account and had submitted that the entries made by him in the records were made unintentionally and it was on account of a bonafide mistake/error.
The learned Trial Court, upon appreciating the evidences coming on record proceeded vide judgment dated 12.09.2013, to convict the appellant under Section 477A IPC read with Section 13(2)/13(1)(c) of the Prevention of Corruption Act, 1988 (as amended) and sentenced him, as noticed hereinabove.
Being aggrieved, the appellant has instituted the present proceeding.
4. Mr. Choudhury, learned counsel for the appellant, by taking this Court through the depositions of the prosecution witnesses during the trial, has submitted that the same would bring on record that the appellant had no intention to defalcate any amount from the customers involved and had made a bonafide mistake in making necessary entries in the ledgers/passbooks of the customers. He submits that the evidences coming on record does not establish the offence against the appellant beyond reasonable doubt.
4.1 Mr. Choudhury, further submits that the appellant, having returned the amount involved, would also go to reveal that he had no intention to misappropriate any amount of the customers and the wrong entries made, was a bonafide error on his part. Accordingly, he submits that the charges under Section 477A IPC as well as under Section 13(1)(c) of the Prevention of Corruption Act, cannot be held to have been established against the appellant and accordingly, no punishment under the said Sections, were permissible to be so imposed upon the appellant by the learned Trial Court.
5. Per contra, Ms. Kumari, learned Retainer counsel, CBI, by referring to the Page No.# 5/13 evidences of the customers, the Investigating Authority as well as the Handwriting Expert, who had deposed as PW15, has submitted that the offence alleged against the appellant, was found to have been established beyond reasonable doubt. She submits that the learned Trial Court, had appreciated the evidences coming on record in proper perspective and had, thereafter, come to its conclusion that the appellant, herein, was guilty of the charges framed against him under Section 477A IPC read with Section 13(2) and 13(1)(c) of the Prevention of Corruption Act. Accordingly, she submits that the impugned judgment & order of the learned Trial Court would not mandate an interference from this Court.
6. I have heard the learned counsels for the parties and also perused the materials available on record.
7. The learned Trial Court, upon appreciating the evidences coming on record, had drawn the following conclusions:
"17. It is not disputed in the case that on 25.6.2010 accused Jol Bahar Sheikh was working at Sukchar Sub Post Office as Sub Post Master. However during the course of argument the learned defence counsel has submitted that Mahadev Ch. Das (PW-7) was also on duty on 25.6.2010 at Sukchar Sub Post office. But on perusal of the evidence of PW-7 Sh. Mahadeb Ch. Das we come to know that he joined in Sukchar Sub Post Office on 25.6.2010 in the afternoon and he started work at Sukchar Sub Post Office on 26.6.2010. On the other hand it reveals from the evidence on record that the alleged anomalies had taken place at Sukchar Sub Post Office prior to date 26.6.2010. The defence side has not categorically denied about those anomalies occurred at Sukchar Sub post office. The evidence on record clearly establishes the fact that while the accused was working at Sukchar Sub Post Office as Sub Post Master then some anomalies had taken place in respect of the accounts of four account holders namely Shaju Page No.# 6/13 Akand. Md. Kalam. Sakad Ali Mondol and Jahantra Khatun. It transpires from the evidence on record that from the accounts of aforesaid four persons total amount of Rs. 1,20,400/- was misappropriated. The defence side has not disputed the amount. But in his statement recorded u/s 313 CrPC the accused has taken the plea that it was an unintentional error/mistake on his part and as such he returned the entire amount of Rs. 1,20,400/-. During the course of argument the learned Defence Counsel has also submitted that the accused did not misappropriate any money and the alleged anomalies in the accounts of four persons took place due to the mistake of the accused and that was quite unintentional and that is why when the said anomalies were detected then the accused himself returned the entire money. That the accused returned the entire amount of Rs. 1,20,400/- this fact however has been confirmed from the evidence of Prosecution Witnesses. But it has been submitted by the learned Special PP for the Prosecution that the way in which the accused manipulated the entries in the accounts books and Pass Book of four account holders there is no scope to believe that the accused had no intention to misappropriate the money and it happened due to mistake. From the evidence of PW-1 it reveals that he accorded sanction for prosecution against accused Jol Bahar Sheikh for the alleged misappropriation of money from the Savings A/C of the account holders at Sukchar Sub Post Office. It is stated by PW-1 that after going through the relevant papers and after application of his mind he accorded the said sanction order. According to PW-1 he is the competent authority to accord the said sanction against the accused. Though PW-1 was suggested by the defence side that he did not go through the documents and also did not apply his mind in according the sanction but PW-1 denied the same On the other hand from the cross-examination of PW-1 nothing has come out to disbelieve his evidence on that count. I also find no defect in the case in granting the Prosecution sanction.
18. From the evidence on record and the exhibited documents it has been clearly established that though one Sakad Ali Mondol deposited an amount of Page No.# 7/13 Rs. 60,000/- in his Savings A/C no. 554635 but accused Jol Bahar Sheikh credited only Rs. 10,000/- by manipulating entry in the record and misappropriated Rs. 50,000/-One Shaju Ahmed took withdrawal of Rs.10,000/- from his S/B a/c no. 553815 but the accused showed withdrawal of Rs. 29,000/- and thus accused Jol Bahar Sheikh misappropriated an amount of Rs. 19,000/- Again it has been established that one Jahanara Khatun bati deposited an amount of Rs. 20,000/- in her account no: 551927 and accused Jol Bahar Sheikh entered the said amount in the Pass Book of Jahanara Khatun but did not show the amount credited in the Govt. account and thus misappropriated the amount. From the account no 552692 of Md. Kalam an withdrawal of Rs. 31,400/- was made though here was no such balance in the account and also the accused did not make any entry in the concerned Pass Book in that regard. Thus the accused misappropriated the said amount. It is seen that all the anomalies in the accounts of four account holders took place on 25.6.2010. Though the defence plea is that the alleged anomalies were unintentional error of the accused but in case of account of Md. Kalam bearing a/c no. 552692 the withdrawal was more than the balance in the account. It has been stated by PW-17 that there may be human error in making entries in the pass book but there can not be withdrawal more than the total balance. From this and also from the entries made in different records in different manner regarding deposit/withdrawal in respect of the accounts on the same day I find it hard to believe that the anomalies occurred due to unintentional error of the accused. Rather I am of the clear view that the accused with criminal intention manipulated the records and misappropriated total amount of Rs. 1,20,400/- from the savings accounts of the account holders. Though it reveals from the record, that the accused person returned the entire amount of Rs. 1,20,400/- when the anomalies were detected but that can not absolve him from the offence. In this connection we may refer to a case law reported in 'AIR 1983 SUPREME COURT 174', wherein it has been observed by the Hon'ble Apex Court that" The fact that the accused refunded the amount when the act of his defalcation came to be discovered, does not absolve him from the offence Page No.# 8/13 committed by him."
19. In view of the above, it has been established beyond reasonable doubts that accused Jol Bahar Sheikh falsified books of accounts and Postal records and misappropriated an amount of Rs 1,20,400/- from different account holders of Sukchar Sub Post Office. It has also been established beyond doubt that the accused being a public servant committed criminal misconduct by fraudulently or dishonestly misappropriating the said money which was under his control or was entrusted to him as such public servant by the the account holders of Sukchar Sub Post office and converting the amount for his own use. As such I find the accused guilty U/S 477A IPC and U/S 13(2) R/W 13 (1)(C) of the PC Act. However the materials on record do not substantiate the offence U/S 467/471 IPC. against the accused. Under the circumstances the accused is acquitted from the charges U/S 467/471 IPC. Accused Jol Bahar Sheikh is convicted only U/S 477A IPC and U/S 13(2) R/W 13 (1)(C) of the PC Act. 1988."
8. Basing on the said conclusions, the learned Trial Court convicted the appellant under Section 477A IPC read with Section 13(2) and 13(1)(c) of the PC Act and sentenced him, as noticed hereinabove.
9. This Court has carefully perused the conclusions drawn by the learned Trial Court in the light of the evidences coming on record and finds that the conclusions so drawn by the learned Trial Court to be not erroneous.
10. In view of the above conclusions drawn by this Court, the conviction of the appellant, herein, under Section 477A IPC read with Section 13(2) and 13(1)
(c) of the Prevention of Corruption Act, 1988 stands upheld.
11. Having drawn the above conclusions, this Court notices that the offence was committed by the appellant during the period 01.10.2008 and 25.06.2010. The investigation, having been completed, a charge-sheet was filed in the Page No.# 9/13 matter. The trial had commenced in the year 2012 and the learned Trial Court, had on conclusion of the trial, passed the impugned judgment on 12.09.2013. Thereafter, the appellant is found to have been persecuting the present appeal. It is thus seen that from the date, the FIR in the matter was lodged, more than 15 years have lapsed. The appellant is found to have been persecuting the present appeal for the last around 12 years.
12. It is submitted at the bar that the appellant presently on account of his advancing age, is suffering from various old aged related ailments.
13. This Court, having upheld the conviction of the appellant by the learned Trial Court, would now consider as to whether in the light of the mitigating circumstances placed on record, such as advanced age of the appellant, his deteriorating health condition and prolonged delay in conclusion of the proceeding, the sentencing of the appellant by the learned Trial Court, would mandate a reconsideration.
14. In criminal jurisprudence, sentencing is not merely a mechanical exercise, but involves a careful balancing of aggravating and mitigating factors. While aggravating circumstances highlight the gravity and impact of the offence, mitigating factors provide insight into the personal circumstances of the offender which may require a lesser punishment.
15. Mitigating factors may include the age of the accused, absence of prior criminal record, mental or physical health conditions, socio-economic background, duration of trial, and good conduct during incarceration. In this regard, the Hon'ble Supreme Court in Mohammad Giasuddin Vs State of Andhra Pradesh, reported in (1977) 3 SCC 287, inter-alia, held as under:
Page No.# 10/13 "9. ......... It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-
social behaviour has to be countered not by undue cruelty but by re- culturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an "in terrorem" outlook, should prevail in our Criminal Courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw: "If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries." We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield: "If you are going to have anything to do with the Criminal courts, you should see for yourself the conditions under which prisoners serve their sentences". In the same strain a British Buddhist-Christian Judge, speaking to a BBC reporter underscored the role of compassion: "Circuit Judge Christmas Humphreys told the BBC reporter recently that a Judge looks 'at the man in the dock in a different way, not just a criminal to be punished, but a fellow human being, another form of life who is also a form of the same one life as oneself. In the context of Page No.# 11/13 karuna and punishment for karma the same Judge said: 'The two things are not incompatible. You do punish him for what he did, but you bring in a quality of what is sometimes called mercy, rather than an emotional hate against the man for doing something harmful. You feel with him, that is what compassion means."
16. ......... A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances extenuating or aggravating of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental conditions of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence. These factors have to be taken into account by the Court in deciding upon the appropriate sentence.
17. It will thus be seen that there is a great discretion vested in the Judge, especially when pluralistic factors enter his calculations. Even so, the Judge must exercise this discretionary power, drawing his inspiration from the humanitarian spirit of the law, and living down the traditional precedents which have winked at the personality of the crime-doer and been swept away by the features of the crime.
Page No.# 12/13 What is dated has to be discarded. What is current has to be incorporated. Therefore innovation in all conscience, is in the field of judicial discretion."
16. From the aforesaid judgment(s), it is clear that the objective of sentencing has to be a combination of deterrence and rehabilitation, both have to coexist and in the absence of one, the purpose of the other cannot be achieved. No hard and fast formula or mechanism for combining deterrence with rehabilitation can be laid down, but the same has to be worked out in relation to the individual concerned and on case to case basis.
17. The Hon'ble Supreme Court in its decision in the case of Ketan B. Parekh Vs. Central Bureau of Investigation , reported in 2024 SCC OnLine SC 2435, had also reiterated the above position.
18. In view of the above discussion, considering the long delay occasioning in culmination of proceedings against the appellant and also noticing his age and the old age ailments suffered by him, this Court is of the considered view that, the said factors would mandate a reconsideration of the sentencing of imprisonment of the appellant, as awarded by the learned Trial Court and a reduced sentence of imprisonment is called to be awarded.
19. In view of the above position coming to the notice of this Court, considering the mitigating factors, the sentencing of the appellant is modified, as under;
The appellant is sentenced to undergo imprisonment for 3 (three) months, along with payment of fine of Rs.5,000/-, in default, to undergo further Simple Imprisonment for 15 (fifteen) days for the offence under Section 477A IPC. The Page No.# 13/13 appellant is also sentenced to undergo imprisonment for a period of 3 (three) months, along with payment of fine of Rs.5,000/, in default, to undergo imprisonment for a period of 15 (fifteen) days for the offence under Section 13(2) read with Section 13(1)(c) of the PC Act. The said sentencing of imprisonment shall run concurrently.
20. In view of the above, while upholding the conviction of the appellant in terms of the impugned judgment & order of the learned Trial Court, the sentencing of the appellant stands modified to the extent, as directed hereinabove.
21. The appellant is directed to approach the learned Trial Court within a period of 3 (three) months from today and to undergo the sentence of imprisonment and also to deposit the fine amount, as directed hereinabove.
22. With the above observation and directions, the present criminal appeal stands disposed of.
23. Send down the records of the case to the learned Trial Court along with a copy of this order for information and necessary action.
JUDGE Pratibha Digitally signed by Pratibha Baruah DN: c=IN, o=Personal, postalCode=781004, l=Kamrup Metro, st=Assam, street=FLAT NO 204 GAUHATI HIGH COURT PRIVATE SECRETARY COMPLEX, Kharguli, Guwahati Assam India 781004, title=3293, 2.5.4.20=71a530be2ea040bbb22c00931aced04f63e681f6cae3635c78d478f0226 Baruah 6cde4, serialNumber=cb2a7c22627f9ea771f18f3983e02b66130df764108b79dd12f3a3e 40cd1d082, [email protected], cn=Pratibha Baruah Date: 2026.04.17 14:07:54 +05'30' Comparing Assistant