Page No.# 1/12 GAHC030001022018 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./27/2018 Sapmawia Aizawl, Mizoram VERSUS State of Mizoram Aizawl, Mizoram Advocate for the Petitioner : Mr. Aldrin Lallawmzuala Advocate for the Respondent : Mrs. Linda L Fambawl (Addl.PP, Mizoram) ::: B E F O R E::: THE HON’BLE MR. JUSTICE NELSON SAILO Date of Hearing : 25.03.2025 Date of Judgment : 27.03.2025 J U D G M E N T & O R D E R (CAV) Heard Mr. Aldrin Lallawmzuala, learned counsel for the appellant and Ms. Mary L. Khiangte, learned Addl. Public Prosecutor for the State. This is an appeal filed by the appellant under Section 347 Cr.PC read with Section 27 of the Prevention of Corruption Act, 1988 (P.C Act) against the Judgment & Order dated Page No.# 2/12 07.08.2018 passed by the Court of Special Judge in S.R (PCA) No. 5/2013 convicting the appellant under Section 13(1)(c) of the P.C Act and sentenced to undergo imprisonment for a period of one (1) year and to pay a fine of Rs. 20,000/- with a default clause. [2.] A joint complaint was submitted to the Superintendent of Police, Anti- Corruption Bureau (ACB), Mizoram on 01.08.212 by Mr. C. Vanlalpeka and Mr. P.C. Laltanpuia, Chairman and Secretary of the Joint Action Committee, Kanhmun alleging misappropriation of development fund received from Zawlnuam Rural Development Block during 2009 - 2012. The ACB registered preliminary enquiry No. 19/2012 dated 06.08.2012 and the designated enquiry officer who after conducting the enquiry found the appellant who was the Village Council Chairman (VCP) of Kanhmun village had misappropriated Rs. 4,66,395/-. In view of such preliminary finding, an FIR was lodged against the appellant and ACB P.S Case No. 12/2012 dated 22.11.2012 under Section 120B/406/468/477A IPC and Section 13(1)(c)(d) read with Section 13(2) of the P.C Act was registered and investigated into. Upon conclusion of the investigation, the Investigating Officer having found a prima facie case well established against the appellant filed the charge sheet against the appellant i.e., Charge sheet No. 1/2014 dated 28.01.2014 for prosecution of the appellant under the aforesaid Sections of law. [3.] Charge was framed against the appellant under Section 120B/406/468/477A Page No.# 3/12 IPC and Section 13(1)(c)(d) read with Section 13(2) of the P.C Act and the same was read over and explained to him in language he understood. The appellant pleaded not guilty and claimed for trial. Therefore, trial began and during which the prosecution examined 16 prosecution witnesses. Upon closure of the prosecution evidence, the appellant was examined under Section 313 Cr.PC. The appellant in his defence examined one (1) defence witness. Consequently, the learned Trial Court upon hearing the parties convicted and sentenced the appellant in the manner already stated in the preceding paragraph. [4.] Mr. Aldrin Lallawmzuala, learned counsel submits that the preliminary enquiry report prepared by the designated officer was not a part of the charge sheet. The RTI reply relied upon by the two (2) complainants was also not produced and exhibited during the trial. In fact, it was only due to certain political rivalry that the appellant is alleged to have misappropriated the fund meant for developmental purpose under the MNREGS. [5.] The learned counsel by referring to the evidence of PW-1&2 submits that the said prosecution witnesses were the complainants and instead of approaching the office of the Block Development Officer, Zawlnuam RD Block, they apparently approached the office of the District Rural Development Agency (DRDA) and the therefore, not knowing the actual facts that have submitted the complaint solely on the basis of suspicion. The learned counsel submits that a perusal of the evidence Page No.# 4/12 led by the prosecution witnesses would go to show that their evidence only supports the case of the appellant. He submits that the departmental witnesses including the BDO concerned and the staff in the BDO office clearly deposed that no complaint was received from any quarters regarding misuse of fund and therefore, the charge framed against the appellant being baseless and having not been proved, the impugned Judgment & Order cannot be sustained and the same should be set aside. To support his submission, the learned counsel has read out the evidence led by the rival parties. [6.] Per contra, Ms. Mary L. Khiangte, learned Addl. Public Prosecutor submits that the allegation of misappropriation of fund against the appellant which were three (3) in numbers as can be seen from the charge framed on 30.01.2015 by the learned Trial Court. Firstly, the misappropriated amount is Rs. 2,26,395/- sanctioned for construction of slab culverts at Goboi to Hmarkaih WRC Road, Kanhmun. Secondly, another amount of Rs. 1,50,000/- which was sanctioned for construction of slab culverts at Agri Quarter road to Lianzawilala road, Kanhmun. Thirdly, it was a sum of Rs. 90,000/- sanctioned for construction of retaining wall at Kanhmun. Thus, the total amount of fund misappropriated adds up to Rs. 4,66,395/-. The learned Addl. Public Prosecutor submits that as per the deposition of PW-9 who was the then Village Council Secretary and also seizure witness on 10.09.2009 as per the instructions of the appellant, went to the office of the BDO, Page No.# 5/12 Zawlnuam and he took a sum of Rs. 1,50,000/- from the cashier on the same day and came back to Kanhmun and handed over the said amount to the appellant. The money was sanctioned for construction of truckable road from Agri Quarter road to Lianzawilala slab culvert. However, as far as he knew, the sanction was not utilized for the purpose it was sanctioned. In respect of the amount of Rs. 2,26,395/-, the same was paid to the appellant in two (2) installments. The amount of Rs. 1,81,116/- was paid to the appellant vide the APR exhibit as Exhibit M-16 while a sum of Rs. 45,279/- was again paid to him vide the APR exhibited as Exhibit M-17. Since no explanation has been made as to how the same was utilized, it is clear that the appellant has misappropriated the said amount. [7.] Further, the learned Addl. Public Prosecutor submits that in respect of the sum of Rs. 90,000/-, the BDO of Zawlnuam RD Block who deposed as PW-6 stated that a sum of Rs. 1,64,520/- was sanctioned for construction of WRC road slab culvert but on actual verification, he found the sanctioned amount to be in excess and therefore applied for re-sanctioning of the work of construction by reducing Rs. 1,64,520/- to Rs. 90,000/-. Therefore, the learned Addl. Public Prosecutor submits that the charge of misappropriation of a sum of Rs. 90,000/- has not been established. However, in respect of other two (2) misappropriated amount, the learned Trial Court has rightly found the appellant to have misappropriated the same and therefore, the impugned Judgment & Order rightly been passed and the Page No.# 6/12 same should be upheld. [8.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. As already stated, charge was framed against the appellant for misappropriation of development fund totaling to a sum of Rs. 4,66,395/. PW-6 who was the BDO of Zawlnuam R.D Block from the month of January, 2010 till 31.03.2011 clearly stated in his deposition that the amount sanctioned for construction of WRC road slab culvert amounting to Rs. 1,64,526/- was found to be on the higher side and accordingly, he applied for re- sanctioning of the work @ Rs. 90,000/-. The said amount was released after obtaining all the required photograph of the work already done. As for the remaining balance of Rs. 74,520/-, the same was diverted to other villages for a more durable work. [9.] PW-9 who was the Village Council Secretary and seizure witness in his examination-in-chief stated that he was the Kanhmun Village Council Secretary for the period from 2009-2012 and the developmental works at Kanhmun were executed by the Village Monitoring Committee under wages component. That the wages is the money collected/contributed from the MGNREGS beneficiaries from two days each for the purpose of hiring JCB for developmental works. The wages money was under the custody of the Village Council Treasurer. On 10.09.2009, as per the instructions of the appellant, who the Village Council President, he went to Page No.# 7/12 the office of BDO, Zawlnuam and took a sum of Rs. 1,50,000/- from the cashier on the same day and returned back to Kanhmun and handed over the same to the appellant. The said money was sanctioned for the construction of truckable road from Agri Quarter road to Lianzawilala slab culvert. However, as far as he knew, the sanctioned money was not utilized for the purpose for which it was sanctioned. PW-9 exhibited the APR amounting to Rs. 1,50,000/- received by him from the cashier of BDO office on 10.09.2009 as Exhibit M-1 and his signature as Exhibit M- 1(A). [10.] In his cross-examination, PW-9 stated that it was a fact that the money sanctioned towards wages components and material component was given to the Village Council President. He also stated that it was not a fact that when the said 1,50,000/- was handed over to the Village Council President, other members of the Village Council were present and it was decided to use the money for other departmental work instead of construction of truckable road from Agri Quarter road to Lianzawilala road. [11.] PW-17, who is also the seizure witness in his examination-in-chief stated that on 18.12.2012 at noon, Inspector R.H. Lalrinhlua, ACB and his party including himself visited the BDO office at Zawlnuam in order to verify the seized documents in connection with the case. He witnessed the seizure of the APR amounting to Rs. 1,81,116/- paid to the appellant for construction of slab culvert at Kanhmun, which Page No.# 8/12 was exhibited as Exhibit M-16 amongst others. In his cross-examination, PW-17 however stated that he did not know any irregularity in connection with Exhibit M- 13 to M-16. [12.] PW-19 who is the case I/O in his examination-in-chief stated that from the site verification, he found that the works such as construction of slab culvert at Goboi - Hmarkaih WRC road; Construction of slab culvert at Agriculture Quarter to Lianzawilala road and contruction of retaining wall at Kanhmun were not executed. Therefore, he found that a sum of Rs. 4,66,395/- had been misappropriated by the appellant. In his cross-examination, he however stated that during the site verification, he was not accompanied by the Technical Assistant and that the relevant APRs were countersigned by the BDO who is the Programme Officer. [13.] PW-3, who is the Inspector of ACB who conducted the preliminary enquiry in his examination-in-chief stated that the sanctioned amount of Rs. 4,66,395/- which is said to have been diverted for other works within the village was found to be not executed. He also examined witnesses to verify that the same amount was not utilized by the appellant for the purpose it was meant but for his own purpose. He therefore submitted the enquiry report and an FIR as per the instructions of the Government. In his cross-examination, he stated that he has not found the enquiry report submitted by him in the case record. He also stated that he did not examine anybody from the BDO office who actually verified and supervise the works Page No.# 9/12 executed by the Village Council President, Kanhmun. Further, he has no opinion regarding the statement of the BDOs and staff of the BDO office that the VCP had executed all the works to their satisfaction. Also, he did not know the reason why his enquiry report was not submitted along with the charge sheet by the I/O. [14.] The prosecution examined two (2) BDOs of Zawlnuam RD Block as prosecution witness Nos. 6 & 7. PW-6 hd the tenure as BDO from January, 2010 to 31.03.2011 and as already noticed in the preceding paragraph, he has given the explanation that a sum of Rs. 90,000/- was released after obtaining all the required photograph of the work already done while the remaining Rs. 74,520/- was diverted to other villages for other works. He also stated in his cross-examination that during his tenure, he did not find any irregularity in the work executed by the appellant under the MGNREG Scheme and that from the records maintained in his office, he did not find any loss or misappropriation of any money handed over to the VCP, Kanhmun. [15.] PW-7, who served as the BDO from April 2011 to September, 2014 stated that a total amount of Rs. 4,66,395/- was released before he joined his post and the documents in this regard was given to the ACB for inspection. In his cross- examination, he stated that he took charge from PW-6 and did not find any discrepancy of any kind or misappropriation of fund earmarked for developmental work of Kanhmun. He also did not see any complaint regarding mismanagement of Page No.# 10/12 fund given to him. All the works entrusted to the appellant under the MGNREGS were supervised by the Technical Assistant under the BDO Zawlnuam R.D Block. He also stated that as far as he knew, no formal complaint was received by the office of the BDO, Zawlnuam R.D Block regarding the works executed by the appellant (the works in question). [16.] The appellant was examined under Section 313 Cr.PC and the evidence led by the prosecution was put across to him in the form of questions and to which, the appellant denied the allegations and stated that all the steps taken by him were done in consultation with the BDO, Zawlnuam R.D Block and the works supervised by officers and staff of BDO, Zawlnuam. [17.] The appellant in his defence examined one Sh. Zorinsanga, who was working as Addl. Programme Officer under BDO, Zawlnuam since 2009 as DW-1. In his examination-in-chief, he stated that if the work mentioned in the sanction letter is not required to be done and/or the money is required for other purpose in the village, the change is made by the BDO agreeing to the need of the village. According to him, the allegation that the appellant misappropriated Rs. 4,66,395/- is not correct and he knows that the appellant utilized the money paid to him from the BDO officer towards the work earmarked by the BDO office. He has also verified the works executed by the appellant and it was commensurate to the amount paid to him as per the re-sanction done by the BDO office. However, in his Page No.# 11/12 cross-examination, he stated that he does not know whether slab culvert at Goboi - Hmarkaih WRC road was constructed or not and likewise, he did not know whether slab culvert for Agriculture Quarter - Lianzawilala road was constructed or not. [18.] Upon perusal and appreciation of the evidence led by the parties before the learned Trial Court, one is reminded of the fact that in order to convict a person of a certain charge under the criminal law, the prosecution is required to prove the case against him beyond all reasonable doubt. The prosecution cannot seek for conviction of the accused on the basis of the weakness in the defence led by the accused person. [19.] In the present case, it may be seen that PW-1 apart from saying that he had found some irregularity has not exhibited the preliminary enquiry report based on which the FIR was registered against the appellant. That apart, he stated that he did not examine anyone from the BDO’s office who actually supervised the execution of the works. Likewise, PW-19 who was the case I/O in his cross- examination stated that during the site investigation, he was not accompanied by the Technical Assistant and in fact, he does not know who the Technical Assistant is. He also stated that he did not seize the documents obtained by the two (2) complainants as regards the RTI information secured by them. He also stated that he did not go through the instructions, rules under MGNREG Schem. Also, from the bank account statements of the appellant, he did not find huge/bulky transaction Page No.# 12/12 being made commensurate to the amount alleged to have been misappropriated. [20.] Thus, upon due consideration of the case in its entirety, I am of the considered view that the prosecution has been unable to prove the charge against the appellant with proof beyond reasonable doubt and therefore, under the circumstance, the appellant deserves to be given the benefit of doubt. Accordingly, the impugned Judgment & Order dated 07.08.2018 convicting and sentencing the appellant under Section 13(1)(c) of the P.C Act is hereby set aside. Bail bonds, if any, stands discharged. [21.] Registry shall send back the LCR to the Trial Court immediately. JUDGE Comparing Assistant