1
Present:
Mr. Justice Md. Shohrowardi
Criminal Appeal No. 5493 of 2022
Md. Waliuddin
...Convict-appellant
-Versus-
The State and another
...Respondents
Mr. Mohammad Mojnu Mollah, Advocate
...For the convict-appellant Mr. Rezaul Karim (Reza), D.A.G with
Mr. Md. Shahidul Islam, A.A.G with
Ms. Sharmin Hamid, A.A.G
...For the State
Mr. Mohammad Ashraf Uddin Bhuiyan, Advocate
...For the respondent No. 2, Anti-Corruption Commission
Heard on 25.08.2024, 28.08.2024 and 24.10.2024 Judgment delivered on 28.10.2024
This criminal appeal under Section 410 of the Code of Criminal Procedure is directed challenging the legality and propriety of the impugned judgment and order dated 30.05.2022 passed by Special Judge, Faridpur in Special Case No. 03 of 2017 convicting the appellant under Section 467 of the Penal Code, 1860 and sentencing him to suffer rigorous imprisonment for 1(one) year and fine of Tk. 50,000(fifty thousand), in default, to suffer imprisonment for 01(one) month, convicting him under Section 471 of the Penal Code, 1860 and sentencing him to suffer rigorous imprisonment for 1(one) year and fine of Tk. 50,000(fifty thousand), in default, to suffer imprisonment for 01(one) month and convicting him under Section 5(2) of the Prevention of Corruption Act, 1947 and sentencing him thereunder to suffer rigorous imprisonment for 1(one) year and fine of Tk. 50,000(fifty thousand), in default, to suffer imprisonment for 01(one) month.
The prosecution case, in short, is that 92 decimals of land of S.A. Khatian No. 122, Dag No. 1841, 1854, 1841/2001 under No. 70 Dhipur Mouza of Gosairhat Thana, Shariatpur belonged to Harendra Chandra Nondy. He left for India long ago and the said land was recorded in the khas khatian. After that, Abdur Rashid Rari obtained settlement of 45 decimals of land of Dag No. 1841 as a landless person and after payment of the rents, he was enjoying and possessing the land. One Nilufa Begum, wife of accused Md. Waliuddin, applied on 26.01.1993 to the AC Land, Gosairhat for correction of record in her name. In the said application, it has been stated that he got the said property by auction purchase in Certificate Case No. 873 GH/76-77. The Assistant Commissioner of Land, Gosairhat initiated Miscellaneous Case No. 12-35/92-93 and directed the Assistant Land Officer, Edilpur Union Parishad to give a report on physical inspection. The Assistant Land Officer Edilpur in his report dated 30.03.1993 opined that Harendra Chandra Nondy was the S.A. recorded owner of the property and Nilufa Begum purchased the said land in the certificate case initiated for realization of the unpaid rent. In the said report, it has been also opined that one Abdur Rashid Rari of Char Samontasar obtained settlement of the land. Accordingly, the land development tax was also paid. On receipt of the said report, the Assistant Commissioner of Land, Gosairhat called for the record of the disputed Certificate Case No. 873 GH/76-77 from the Assistant Land Officer, Damuda. The Assistant Commissioner of Land, Damuda by memo dated 22.05.1993 sent a report stating that the record of the said certificate case is not available in his office. After that, to settle the dispute the record was sent to the Additional Deputy Commissioner, Shariatpur and a mutation case was started. The Additional Deputy Commissioner (Revenue) by order dated 18.12.1993 opined that there is a doubt about the existence of the said certificate case and accordingly, he rejected the application for mutation holding that accused Waliuddin, husband of Most. Nilufa Begum, paid the rent of the disputed Khatian No. 122 for the year 1390-1997, before mutation. Since he is the Assistant Land Officer, he illegally paid the rent. Nilufa Begum, the wife of the accused Waliuddin, filed Title Suit No. 12 of 1994 praying for a decree to set aside the said order passed by the Additional Deputy Commissioner, Shariatpur and recording the said land in her name. The Assistant Judge, Gosairhat by judgment and order dated 03.05.1995 passed in Title Suit No. 12 of 1994 dismissed the suit holding that the record of the said certificate case was forged recently and directed to take necessary steps against the person responsible for forging the documents against which Most. Nilufa Begum filed Title Appeal No. 20 of 1995 and the appellate Court by judgment and order dated 26.05.1996 dismissed the appeal directing to take necessary steps against the person responsible for the forgery and receipt of rent. Thereafter Md. Shahidul Islam, Assistant Inspector DAB, Shariatpur lodged the FIR on 25.05.2004 against the appellant and his wife Most. Nilufa Begum under Sections 420/467/468/471/109 of the Penal Code, 1860 read with Section 5(2) of the Prevention of Corruption Act, 1947.
P.W. 5 A.S.M Sazzad Hossain, Assistant Director, ACC, Combined District Office, Faridpur was appointed as Investigating Officer. During the investigation, he seized documents and recorded the statements of witnesses under Section 161 of the Code of Criminal Procedure, 1898. After completing the investigation, he submitted the memo of evidence on 30.03.2016 for submitting charge sheet against the accused-persons. The Anti-Corruption Commission, Head Office, by memo dated 15.06.2016 had approved for submission of charge sheet against the accused Md. Waliuddin and his wife Nilufa Begum. After that, the Investigating Officer
submitted charge sheet on 22.06.2016 against the accused Md. Waliuddin and accused Most. Nilufa Begum under Sections 420/467/468/471/109 of the Penal Code, 1860 read with Section 5(2) of the Prevention of Corruption Act, 1947.
After that, the case record was sent to the Senior Special Judge, Shariatpur who by order dated 06.09.2016 took cognizance of the offence against the accused persons and sent the case to the Special Judge, Faridpur for disposal of the case. During trial, charge was framed on 05.09.2017 against the accused Md. Waliuddin and his wife Nilufa Begum under Sections 420/467/468/471/109 of the Penal Code, 1860 read with Section 5(2) of the Prevention of Corruption Act, 1947 which was read over and explained to them who pleaded not guilty to the charge and claimed to be tried following the law. During trial, the accused Nilufa Begum died and the trial Court by order No. 18 dated 31.10.2018 discharged the accused Nilufa Begum. During the trial, the prosecution examined 7(seven) witnesses to prove the charge against the accused. After examination of the prosecution witnesses, the accused Md. Waliuddin was examined under Section 342 of the Code of Criminal Procedure and he declined to adduce any D.W. After concluding the trial, the trial Court by impugned judgment and order convicted the accused Md. Waliuddin as stated above against which he filed the instant appeal.
P.W. 1 Abdur Rob Miah is the Lower Division Assistant of the Office of the Deputy Commissioner (Revenue Section), Shariatpur. He stated that from 1990 to 08.09.1999 he discharged his duty as Lower Division Assistant in the Office of the Deputy Commissioner, Shariatpur. On 11.11.1998 at noon the Inspector of DAB seized documents presented by Abdul Gani Mia and Abdul Jalil Mridha and he signed the seizure list. He proved the seizure list as exhibit 1 and his signature on the seizure list as exhibit 1/1. He
submitted the records of Miscellaneous Case No. XIII-35/92-93 of the Office of the AC Land, Gosairhat, Shariatpur (total 27 pages). He proved the said documents as exhibit 2 series. He proved the
Settlement Case No. XII-D-637/78-79
records of the XII-SD-573/78-79 total 08(eight)
pages as exhibit 3 series. During cross-examination, he stated that the rent is realized based on register No. 2.
P.W. 2 Kazi Shahab Uddin is the Sherestadar of the Assistant Judge, Gosairhat, Shariatpur. He stated that he discharged his duty in the Office of the Assistant Judge, Gosairhat from 1992 to 1998. He proved the judgment passed in Title Suit No. 12 of 1994 (total 6 pages) as exhibit 4 series. He proved the documents submitted on behalf of the plaintiff in Title Suit No. 12 of 1994 (total 23 pages) as exhibit 5 series. He proved the documents (total 18 pages) submitted on behalf of defendant No. 5 in Title Suit No. 12 of 1994 as exhibit 6 series. He proved the letter dated 29.05.1987 sent by the Officer of the ACC as exhibit 7. He proved the letter along with the documents dated 23.06.1997 as exhibit 8 and his signature as exhibit 8(1). He admitted the suggestion that the Assistant Judge did not send him by issuing any letter to ACC. On recall, he stated that Narendra Chandra Das was the Joint District Judge in 1995-96 in the Court of Joint District Judge, Court No. 2, Shariatpur. He discharged his duty as Sherestadar of the said Court. The learned Court passed judgment in Title Appeal No. 20 of 1995 on 26.05.1996. The judgment was sent to the Anti-Corruption Commission, Shariatpur. He proved the judgment as exhibit 10 series. During cross-examination, he admitted that the record of Title Appeal No. 20 of 1995 was not kept in his custody.
P.W. 3 Md. Sagir Hossain is the General Manager (Transport), North City Corporation, Dhaka. He stated that from January 2016 to January 2017, he discharged his duty as UNO, Gosairhat and he also discharged his additional duty as AC (Land). In the record of register No. 9 of the Land Office in serial No. 244, ‘1977-78’ was written in place of ‘1976-77’. Nilufar Begum obtained the auction purchase. On 22.03.2016 the Assistant Union Land Officer sent the information to him and he sent the same to the ACC. He proved the 7 pages of register No. 9 as exhibit 9 series. During cross-examination, he stated that Khas land is registered as
VP property and in register No. 9 the land of certificate case is mentioned. The rent was received from the certificate purchaser issuing the DCR. He denied the suggestion that he deposed falsely.
P.W. 4 Md. Saidur Rahman is the Assistant Inspector, ACC, Faridpur. He stated that from 2010 to 2015 he discharged his duty along with the informant Shahiddul Islam of this case in the Office of the Anti-Corruption Commission, Faridpur. His signature is known to him. He proved the FIR as exhibit 11 and the signature of the informant as exhibit 11/1. During cross-examination, he stated that he was not aware of the FIR and at the time of lodging the FIR, he was not present there. He denied the suggestion that the informant is not known to him.
P.W. 5 A.S.M Sazzad Hossain is the Deputy Director, ACC, Dhaka. He stated that from 2016 to 2018 he discharged his duty as Assistant Director, ACC, Combined District Office, Faridpur. He was appointed as Investigating Officer on 17.02.2016. On perusal of the records, he found that 92 decimals of land of S.A. Khatian No. 122 under Mouza No. 70 Dhipur of Gosairhat are khas property and in the year 1977-78, the said land was given settlement in favour of Abdur Rashid. The accused Md. Waliuddin and his wife Nilufa Begum who are the adjacent owner of the said land filed an application on 26.01.1993 for correction of record to the AC Land, Gosairhat. The accused Nilufa Begum created the forged Bainanama and letter of possession. Subsequently, the Office of the Additional Deputy Commissioner (Revenue) started Case No. XIII-73/92-93. In the said case, it has been mentioned that before mutation rent was paid by the husband of the accused Nilufa Begum as he was the Assistant Union Land Officer and said case was rejected. After that Nilufa Begum filed Title Suit No. 12 of 1994 in the Court of Assistant Judge, Gosairhat and in the judgment and order dated 03.05.1995, it has been opined that the records of Case No. 873 GH/76-77 were forged against which Nilufa Begum filed Title Appeal No. 20 of 1995 which was dismissed on 26.05.1996. The record was sent to ACC for forgery against the accused which was registered as ER No. 13 of 1996. During the investigation, he found that the documents of Case No. 873 GH/76-77 were forged. On perusal of the register of the rent, it was found that the rent receipt was recorded in the ‘register of 1977-78’ in place of the rent register of 76-77. The ACC vide memo dated 15.06.2016 issued a sanction letter which was proved as exhibit 12. After that, he submitted the charge sheet on 22.06.2016. During cross-examination, he stated that the suit land is the Khas property. He did not seize the Khas Khatian rent register. In the register No. 9, at serial No. 244, the disputed land is mentioned. The government accepted the rent by issuing a rent receipt. The disputed land is part of the Khas property. He affirmed that before mutation, the accused paid rent on behalf of his wife. Out of 92 decimals of land 45 decimals of land were given settlement in favour of Abdur Rashid. He was not aware of the recording of 47 decimals of land in the name of Nilufa Begum. He denied the suggestion that the accused was not involved in the occurrence.
P.W. 6 Md. Abdur Rashid is the Record Keeper of the Office of the Deputy Commissioner, Shariatpur. He stated that from 01.09.2019 he was discharging his duty as Record Keeper of the Office of the Deputy Commissioner, Shariatpur. Following the order of the Court, he brought the ROR(Record of Rights) Register. 92
decimals of the land of S.A. Khatian No. 122, SA Dag No. 1841, 1854, 1841/2001 were recorded in the ROR Register in the name of Harendra Chandra Nondy. He submitted page No. 30 of the register and produced the original of the register and the photocopy of the register is identical to the original register. He proved the photocopy of the page No. 30 of the register as exhibit 13. During cross- examination, he stated that he deposed falsely.
P.W. 7 Sujan Das Gupta is the Assistant Commissioner (Land), Gosairhat. He stated that from 03.08.2021 he is discharging his duty as Assistant Commissioner (Land), Gosairhat. On 26.01.2022 a requisition was sent from the Edilpur Union Land Office, Gosairhat for ROR Register. Since the said Register was not found, it is not possible to produce the same in Court.
Learned Advocate Mr. Mohammad Mojnu Mollah appearing on behalf of the appellant submits that Nilufa Begum, wife of the accused Md. Waliuddin, purchased the land in Certificate Case No. 873 GH/76-77 and she filed an application on 26.01.1993 to the Assistant Commissioner (Land), Gosairhat for recording her name as owner of 45 decimals of land of S.A. Khatian No. 122 of No. 70 Dhipur Mouza, Gosairhat, Shariatpur and against the order dated 18.12.1993 rejecting the mutation case passed by Additional Deputy Commissioner Revenue, Nilufa Begum filed Title Suit No. 12 of 1994 in the Court of Gosairhat and against the order dated 03.05.1995 passed in Title Suit No. 12 of 1994, she also filed Title Appeal No. 20 of 1995 and the accused was not a party in the Title Suit No. 12 of 1994 and Title Appeal No. 20 of 1995. No order has been passed by either of the courts against the accused Md. Waliuddin. No documentary evidence was adduced by the prosecution to prove the charge against accused and the trial Court on mere conjecture and surmises passed the impugned judgment and
order. The prosecution failed to prove the charge against him. Therefore, he prayed for the allowing the appeal.
Learned Advocate Mr. Mohammad Ashraf Uddin Bhuiyan appearing on behalf of respondent No. 2, Anti-Corruption Commission, submits that the application dated 26.01.1993 was filed by accused Md. Waliuddin and he forged the record of Certificate Case No. 873 GH/76-77 and before recording the name of the wife of the accused in the mutation case, he paid the rent. The prosecution proved the charge against the accused beyond all reasonable doubt. Therefore, he prayed for the dismissal of the appeal.
I have considered the submissions of the learned Advocate Mr. Mohammad Mojnu Mollah who appeared on behalf of the appellant and the learned Advocate Mr. Mohammad Ashraf Uddin Bhuiyan engaged on behalf of respondent No. 2, Anti-Corruption Commission, perused the evidence, impugned judgment and order passed by the trial Court and the records.
On perusal of the records, it appears that the accused Md. Waliuddin is the Assistant Union Land Officer of Kachikata Union Land Office, Thana Sakhipur, Shariatpur and accused Nilufa Begum is his wife. Nilufa Begum applied on 26.01.1993 to the Thana Revenue Officer, Gosairhat for mutation of her name stating that she purchased 92 decimals of land of S.A. Khatian No. 122, SA Dag No. 1841, 1854, 1841/2001 in Certificate Case No. 873 GH/76-77 and paid the rent. Thereafter, under the instruction of the Assistant Land Officer, Gosairhat, the Assistant Union Land Officer, Edilpur by memo dated 30.03.1993 given a report stating that Nilufa Begum purchased the land in Certificate Case No. 873 GH/76-77 and paid the rent. 1.49 acres of land along with 45 decimals of land of SA Dag No. 1841 was given settlement in favour of Abdur Rashid Rari of village Char Samontasar and he paid the rent. After that, the Assistant Commissioner (Land), Gosairhat called for the records of the said certificate case from the Office of the Assistant Commissioner (Land), Damuda who in memo dated 22.05.1993 stated that the records of the said certificate case were not available in his office. Thereafter, the application dated 26.01.1993 (exhibit 2/2) was sent to the Additional Deputy Commissioner (Revenue), Shariatpur who by order dated 18.12.1993 rejected the mutation case holding that there is no existence of the Certificate Case No. 873 GH/76-77 against which Nilufa Begum filed Title Suit No. 12 of 1994 which was also dismissed by judgment and order dated 03.05.1995 against which she filed Title Appeal No. 20 of 1995 and the appellate Court by judgment and order dated 26.05.1996 dismissed the appeal.
On perusal of the application dated 26.01.1993 (exhibit 2(2)) and the judgment and orders passed in Title Suit No. 12 of 1994 and Title Appeal No. 20 of 1995, it appears that the accused Md. Waliuddin is not a party to said application, suit and the appeal. Nilufa Begum herself was examined as P.W. 1 in Title Suit No. 12 of 1994. The accused Md. Waliuddin was not examined as a witness in the suit. No documentary evidence was adduced by the prosecution to show that the accused filed application to the Assistant Commissioner (Land) for mutating the name of his wife Nilufa Begum in the records. The trial Court opined that Certificate Case No. 873 GH/76-77 was forged and recommended to take departmental action against the persons responsible for the forgery. The Subordinate Judge, Court No. 2, Shariatpur dismissed the Title Appeal No. 20 of 1995 directing to initiate the departmental proceeding against the Assistant Union Land Officer and the relevant staff of the Assistant Commissioner of Land, Damuda or Gosairhat and sent a copy of the judgment to the Deputy Commissioner.
On perusal of the judgment and order passed in Title Suit No. 12 of 1994 and the judgment and order passed in Title Appeal No. 20 of 1995, it further appears that both the Courts below directed the concerned authority to initiate proceedings against the concerned Union Assistant Land Officer or Staff of the Office of the Assistant Commissioner, Damuda or Gosairhat. No direction was passed in those judgments against the accused Md. Waliuddin. No step was taken by the concerned authority against the concerned Union Assistant Land Officer or Staff of the Office of the Assistant Commissioner Land, Damuda or Gosairhat who were also responsible for forgery of the Certificate Case No. 873 GH/76-77. None of the Staff of the concerned Union Land Office or Assistant Commissioner (Land), Damuda or Gosairhat was examined by the prosecution to prove the involvement of the accused Md. Waliuddin who allegedly paid the rent before mutation of the disputed land in the name of the Nilufa Begum, wife of the accused Md. Waliuddin.
The prosecution is bound to prove the charge against the accused to the hilt beyond all reasonable doubt by adducing legal evidence. The Investigating Officer P.W. 5 stated that Nilufa Begum and the accused Md. Waliuddin applied on 26.01.1993 to the Assistant Commissioner of Land, Gosairhat for mutation of 92 decimals of land of S.A. Khatian No. 122. On perusal of the said application (exhibit 2), it reveals that the accused Nilufa Begum (now dead) only filed the said application for mutating her name in the records. A person cannot be convicted for the offence committed by his wife. In the instant case, the accused Nilufa Begum (now dead) forged the records of Certificate Case No. 873 GH/76-77 and the accused is a scapegoat. The charge under Sections 467/471 of the Penal Code, 1860 cannot be proved against an accused unless forgery of the document is proved against him. The prosecution
failed to prove the charge against the accused Md. Waliuddin by adducing documentary evidence.
In view of the above evidence, facts and circumstances of the case, findings, observation and the proposition, I am of the view that the prosecution failed to prove the charge against the accused beyond all reasonable doubt.
I find merit in the appeal.
In the result, the appeal is allowed.
The impugned judgment and order of conviction and sentence passed by the trial Court against the accused Md. Waliuddin is hereby set aside.
Send down the lower Court’s records at once.
However, there will be no order as to costs.