Gauhati High Court
Basab Bijay Dutta vs C.B.I on 30 November, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)
CRIMINAL APPEAL (J) NO. 92/2015
Sri Basab Bijay Dutta
----- Accused
- VERSUS -
Central Bureau of Investigation
----- Respondent
BEFORE Hon'ble Mr. Justice Hitesh Kumar Sarma Advocate for the Accused : Mr. I Choudhury.
Advocate for Respondent : Mr. SC Keyal, learned Standing Counsel, CBI.
Date of hearing :26th of October, 2017.
Date of Judgment: 30th of November, 2017.
JUDGMENT & ORDER (CAV) The Criminal Appeal (J) No. 92/2015, has been preferred by appellant Sri Basab Bijoy Dutta against the judgment and order dated 06.06.2015 in Special Case No. 29/2005 passed by the learned Special Judge, CBI, Additional Court No. 1, Assam convicting and sentencing the appellant to rigorous imprisonment for 7 years and to pay a fine of Rs5,00,000 in default to undergo simple imprisonment for 1 year for his conviction under Section 420 of Indian Penal Code (IPC).
[2] The facts leading to this appeal may be summarized as follows:-
[3] On 30.8.2005, an FIR was lodged by the then Superintendent of Criminal Appeal (J) No. 92 of 2015 Page 1 of 8 Police, Central Bureau of Investigation (CBI), alleging that accused Sri Khagen Medhi, Md. Abdul Matlib, Smti Basanti Debnath and the present appellant Sri Basab Bijoy Dutta @ Sri Anup Gupta had fraudulently and dishonestly encashed 50 numbers of forged Kisan Vikas Patra (KVP) from the Gauhati University Head Post Office, Guwahati, and thereby caused wrongful loss to the government to the tune of Rs 10 lacs.
[4] A case, vide RC 14 (A)/2005, under Section 120B/420 IPC read with Section 13(2) and 13 (1)(d) of the Prevention of Corruption Act, 1988, was registered and upon completion of investigation, charge-sheet was filed against Md. Abdul Matlib for offences under Section 120B/420 IPC 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. As against Smti Basanti Debnath charge- sheet was laid for the offences under Section 120B/420 IPC and so far as the present appellant Sri Basab Bijoy Dutta @ Sri Anup Gupta, is concerned, charge- sheet was laid for commission of offences under Section 120B/419/420/467/468/471 IPC. Accused Khagen Medhi was not sent up for lack of sufficient materials against him and also for the reasons that he died before the laying of charge-sheet.
[5] After hearing both the sides, charges under Sections 120B/420 IPC were framed against the accused appellant to which he pleaded not guilty and claimed trial. Prosecution examined as many as 26 witnesses including the Investigating Police Officer. At the closure of prosecution evidence, all the incriminating materials, as required under Section 313 of Cr.PC, were put to the accused appellant. The accused appellant took a plea that he had signed on the KVPs as Anup Gupta as per the instruction of Mahima Ranjan Thakur and Govind Singh as they promised to give him some money. The accused appellant, Criminal Appeal (J) No. 92 of 2015 Page 2 of 8 however, denied having visited the post office. He also declined to adduce any defence evidence.
[6] By the impugned judgment the learned trial Court found that appellant herein guilty for the offence under Section 420 IPC but having found no materials against accused Abdul Matlib and Basanti Debnath acquitted them of all the charges.
[7] I have examined the trial Court's record including the evidence led by the prosecution as well as the judgment put to challenge in this appeal. [8] Heard Mr. Indranil Choudhury,the learned Counsel for the appellant and also heard Mr. S.C. Keyal, learned Standing Counsel, CBI. [9] Admittedly, the KVPs of the series No. 46 CC840001 to 46 CC 1000000 of Rs 10,000 denominations each were lost/stolen during its transit in 1997-98. The evidence of PW 20, Sri Bacha Singh, establishes that during his posting as SSO cum Inspector, GRP, Patna, there was a pending investigation regarding theft of large number of KVPs from Patna Railway Station.
[10] PW 14, Sri Madhab Mukherjee, who was then Asst Superintendent of Post, Baruipur, Kolkata, deposed that he had received a consignment of KVPs in a broken state at Howrah and he had received only 57,706 number of KVPs although 1,60,000 numbers of KVPs were sent from CSD, Nasik. The KVPs were kept in four numbers of boxes bearing No. 312, 313, 314 and 315. Out of the above boxes, box No 313 containing 40,000 KVPs could not be traced.
[11] It is not even in dispute that the KVPs encashed in the present case were of stolen series and hence were not issued by any post office. The Criminal Appeal (J) No. 92 of 2015 Page 3 of 8 evidence of PW 23, Mr. Bhakti Pada Mishra, Assistant Director cum Scientist-C (Documents), establishes that the handwriting in the encashed KVPs matches with the specimen handwriting of appellant Basab Bijoy Dutta. Infact the clear admission of the appellant in his examination under Section 313 Cr.PC leaves no manner of doubt that he had signed the KVPs as Anup Gupta. [12] Though the appellant has taken the plea that he had never visited any post office for encashment of the KVPs the evidence of PW 7, Sri Dinadhar Saikia, makes it clear that appellant had visited the post office for encashment. The evidence of PW 7, Dinadhar Saikia, a Postal Agent, establishes that Anup Gupta and the accused appellant are one and the same person. He also deposed that appellant had asked for his assistance to encash some KVPs. According to PW 7, he was not aware about the fake identity of Anup Gupta who was actually Basab Bijoy Dutta, a conman, and when he learnt about this fact he informed the CBI.
[13] In the same vein as PW 7, Dinadhar Saikia, is the evidence of Achyutananda Das, PW 8, who was then the Post Master at Assam Tribune Sub Post Office. PW 8 also deposed that accused appellant had encashed some KVPs from his office but after payment of amount against KVPs it was discovered that those KVPs are forged hence the appellant was apprehended with the help of Police and forwarded to Chandmari Police Station.
[14] It is, thus, clearly established that accused appellant not only signed the lost KVPs but he also presented those KVPs for encashment before Post Office and obtained the money against those KVPs. Criminal Appeal (J) No. 92 of 2015 Page 4 of 8 [15] The only question, now, which needs to be decided is whether the offence committed by the appellant falls under Section 419 IPC or under Section 420 IPC.
[16] It may be pointed out that the learned trial Court has convicted the appellant for the offence only under Section 420 IPC. The CBI has not preferred any appeal against the judgment. In view of this scenario this Court can only adjudicate upon the legality or otherwise of the order of conviction and consequent sentence passed upon the appellant.
[17] Learned Counsel, appearing for the appellant, has argued that no offence under Section 420 IPC has been made out and that evidence suggest materials only for the offence under Section 419 IPC.
[18] In Kanumukkala Krishnamurthy v. State of A.P, reported in AIR 1965 SC 333, the Hon'ble Supreme Court held that cheating can be committed in either of the two ways described in Section 415 IPC. "Deceiving a person" is common in both the ways of cheating. A person deceived may be fraudulently or dishonestly induced to deliver any property or to consent to the retention of any property by any person. The person deceived may also be intentionally induced to do or to omit to do anything which he would not have done if not deceived and which act of his caused or was likely to cause damage or harm in body, mind, reputation or property.
[19] The relevant observations in Kanumukkala Krishnamurthy (supra), are reproduced as follows:-
"Cheating can be committed in either of the two ways described in Section 415 IPC "Deceiving a person" is common in both the ways of cheating. A person deceived may be fraudulently or dishonestly induced to deliver any property or to consent to the retention of any property by Criminal Appeal (J) No. 92 of 2015 Page 5 of 8 any person. The person deceived may also be intentionally induced to do or to omit to do anything which he would not have done if not deceived and which act of his caused or was likely to cause damage or harm in body, mind, reputation or property."
[20] Cheating, as defined under Section 415 IPC has various forms, which are punishable as offences under Section 417, 418, and 420 IPC. It may be pointed out that cheating by personation has been specifically defined under Section 416 IPC as follows:-
"416: -Cheating by personation.--A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. Explanation.--The offence is committed whether the individual personated is a real or imaginary person."
[21] Cheating by personation is made punishable under Section 419 IPC. A reading of Section 415 IPC together with Section 416 IPC makes it clear that though cheating has two different forms, viz, cheating and cheating by personation. Cheating by personation has been made a distinct offence because the person not only cheats but he does so by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. Whereas cheating per se attracts substantive punishment of upto 1 (one) year imprisonment, cheating by personation attracts substantive punishment of imprisonment upto three years. Thus, it is evident that cheating by personation is graver and distinct offence than cheating made punishable under Section 417 IPC.
Criminal Appeal (J) No. 92 of 2015 Page 6 of 8 [22] In the present case, enacashment of all the KVPs were made in the name of Anup Gupta. The evidence on record has established that no person by the name of Anup Gupta could be found in the given address of Anup Gupta at Haspura, Uttar Pradesh. In any view of the matter, the Explanation to Section 416 IPC makes it clear that the offence under Section 416 IPC is committed whether the individual personated is a real or imaginary person. Such being the evidence, coupled with the admission of appellant in his statement under Section 313 of the Cr.PC that he signed as Anup Gupta, establishes that not only ingredients of cheating by personation, punishable under Section 419 IPC, is present but also there is clear evidence that accused appellant cheated the postal Authorities and thereby dishonestly induced them to deliver property, i.e. cash against the KVPs in the name of Anup Gupta. Hence, not only an offence under Section 419 IPC is made out the evidence on record also establishes the offence under Section 420 IPC. Now, as pointed out hereinbefore, the offence of cheating by personation is a distinct offence. The offence of cheating under Section 420 IPC can be committed by personation or without a personation. Hence, merely because there are materials also for the offence under Section 419 IPC would not mean that offence under Section 420 IPC is ruled out. If the evidence establishes the ingredients for the offence under Section 420 IPC with further evidence that such an act of cheating was committed by personation, the person would be guilty both under Section 419 IPC and under Section 420 IPC. [23] The learned trial Court has not recorded any conviction for the offence under Section 419 IPC, and as pointed out hereinbefore, no appeal has been preferred by the CBI. Hence, even though, on facts, evidence for commission of an offence under Section 419 IPC is found to exist, this Court, hearing an appeal by the accused appellant against his conviction, cannot convict Criminal Appeal (J) No. 92 of 2015 Page 7 of 8 him for any other offence for which he ought to have been convicted apart from the offence on which the conviction has been recorded. [24] In the result, the appeal, so far as the order of conviction of the accused appellant is concerned, fails.
[25] Now, coming to the sentence, record reveals that learned trial Court has given elaborate reasons for giving the maximum penalty under Section 420 IPC to the accused appellant. The organized manner in which the crime was orchestrated by the accused appellant deserves no leniency in terms of sentence awarded by the trial Court.
[26] Appeal is, accordingly dismissed.
[27] Send down the LCR with a copy of this judgment.
JUDGE
Nilakhi
Criminal Appeal (J) No. 92 of 2015 Page 8 of 8