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1999 DIGILAW 57 (GAU)

Narayan Chandra Saha v. State of Assam

1999-02-16

A.K.PATNAIK

body1999
This is an appeal against the judgment dated 11.12.90 passed by the learned Special Judge, Assam, Guwahati in Special Case No.8/86 convicting and sentencing the appellant to undergo rigorous imprisonment for three years and to pay a fine of Rs.20,000 and in default to a further period of rigorous imprisonment for three months under section 5 (2) read with section 5 (1) (e) of the Prevention of Corruption Act, 1947. 2. The facts briefly are that a first information report was lodged by the Superintendent of Police, SPE/CBI, Silchar on 27.2.85 alleging that the appellant who was a Goods Clerk, NF Rly, Silchar, was in possession of pecuniary resources or property disproportionate to his known sources of income and therefore was guilty of offence under section 5 (2) read with section 5 (1) (e) of the Prevention of Corruption Act, 1947. Pursuant to the said first information report, investigation was made by the CBI, and a charge sheet was filed before the Special Judge, Assam, Guwahati. On 20.1.87, the following charge was framed against the appellant by the learned Special Judge, Assam, Guwahati. That you Narayan Chandra Saha while being posted and functioning as Goods Clerk in NF Rly at Lumding, Badarpur and Silchar during 1.1.82 to 28.2.85 (check period) and being a public servant in the said capacity acquired and in possession of you/or on your behalf disproportionate assets valued Rs. 1,02,894.84 for which you cannot satisfactorily account and thereby committed offence punishable under section 5 (2) read with section 5(1) (e) of the Prevention of Corruption Act (Act II of 1947) and within the cognizance of this Court.” The appellant denied the Charge and the trial proceeded. After recording the prosecution and the defence evidence the learned Special Judge, Assam, Guwahati held in the impugned judgment that the appellant had assets amounting to Rs.34,978 on 1.1.82 and Rs.l, 13,008 during the period from 1.1.82 to 31.1.85 and that the assets of the appellant were disproportionate to his known sources of income. The learned Special Judge held the appellant guilty of the offence of possessing assets disproportionate to his known sources of income and convicted him under section 5 (2) read with section 5 (1) (e) of the Prevention of Corruption Act, 1947 and sentenced him to rigorous imprisonment and fine as indicated above. 3. At the hearing, Mr. CR Dey and Mr. 3. At the hearing, Mr. CR Dey and Mr. JM Choudhury learned counsel for the appellant, submitted that the assets found disproportionate to the known sources of income of the appellant as per the charge sheet included the cost of building valued at Rs.2,03,213, but the appellant led evidence in the trial to show that the valuation of the building was only Rs. 1,09,3 95 and that the said evidence led by the appellant through DW 2 in Exit A was accepted by the learned Special Judge, Assam, Guwahati in the impugned judgment. Hence, the difference between the valuation of Rs.2,03,213 made by the prosecution and of Rs.1,09,395 as given by the defence and accepted by the learned Special Judge, Assam, Guwahaji which works out to Rs.93,818 has to be deducted from the figure of Rs. 1,02,894.84 for the purpose of finding out the assets in possession of the appellant disproportionate to his known sources of income. So deducted, the amount is reduced to Rs.9,076.84 which is less than 10% of the total income of the appellant of Rs. 1,03,484.57 during the check period from 1.1.82 to 28.2.85. According to the learned counsel for the appellant an amount of surplus assets is only Rs. 9,076.80 which was less than the 10% of the total income of the appellant during the check period cannot held to be disproportionate to the known sources of income of the appellant and therefore the appellant cannot be held guilty of the offence under section 5 (2) read with section 5 (1) (e) of the Prevention of Corruption Act, 1947. In support of this submission learned counsel for the appellant relied on the decision of the Supreme Court in Krishnanand vs. The State of Madhya Pradesh, (1977) 1 SCC 816 and on the decision of the Orissa High Court in Hemanta Kumar Mohanty, 1973 (1) SLR 1121). 4. Mr. D. Das, learned counsel for the respondent, on the other hand, submitted that even after taking the lower valuation of Rs.1,09,395 as made by DW 2 in Ext A and as accepted by the learned Special Judge, Assam, Guwahati surplus assets is only Rs.9,076.84 is found to be in possession of the appellant. 5. 4. Mr. D. Das, learned counsel for the respondent, on the other hand, submitted that even after taking the lower valuation of Rs.1,09,395 as made by DW 2 in Ext A and as accepted by the learned Special Judge, Assam, Guwahati surplus assets is only Rs.9,076.84 is found to be in possession of the appellant. 5. The case of Krishnanand vs. The State of Madhya Pradesh (supra) was a case under section 5 (3) of the Prevention of Corruption Act, 1947 prior to its amendment by Act 40 of 1964. By the said section 5 (3) of the Prevention of Corruption Act, 1947 the Court was to draw presumption of the offence of criminal misconduct against the accused in discharge of his duty if the accused is in possession of pecuniary resources or property for which he cannot satisfactorily account. The Supreme Court held that since the value of the assets possessed by the appellant in excess of the surplus income available to him was less than ten percent of the total income of the appellant during the check period, it would not be right to hold that the assets found in the possession of the appellant were disproportionate to his known sources of income so as to justify the raising of the presumption under sub-section (3) of section 5 of the Act. 6. In Hemanta Kumar Mohanty vs. State of Orissa (supra) the accused was charged for the offence under clause (e) of section 5 (1) of the Prevention of Corruption Act, 1947 as in the present case and the Orissa High Court held : To sustain a charge under clause (e) of section 5 (1) of the Act, the prosecution has to show that (i) the appellant is/was a public servant, (ii) he himself or on his behalf some one else, (iii) is possessed or has, at any time during the tenure of his office, been in possession of (iy) pecuniary resources disproportionate to his known sources of income for which he could not satisfactorily account. The legislature has not chosen to indicate what proportion of the income would be considered disproportionate and the Court may take a liberal view of the excess of the assets over the receipts of the known sources of income. The legislature has not chosen to indicate what proportion of the income would be considered disproportionate and the Court may take a liberal view of the excess of the assets over the receipts of the known sources of income. It has been held that 'known sources of income' means 'known sources of income to the prosecution after, a thorough investigation' and the onus of satisfactorily accounting for it is not as heavy an onus as is on the prosecution to prove its case beyond all possibility of doubt. This accounting for by the accused had to be liberal construed in favour of the accused and he will not be called upon to prove to the pie any assets to be found disproportionate to his known sources of incomes. It is in this light that I would now proceed to assess the evidence in the case. No doubt, there are several items, but it is not necessary to discuss all of them, particularly the minor ones.” It is thus clear from the aforesaid decision of the Orissa High Court that the legislature has not chosen to indicate what proportion of the pecuniary resources or property found to be in possession of a person can be said to be disproportionate to his known sources of income and that the provision in section 5 (1) (e) of the Act has to be liberally construed in favour of the accused public servant and that the public servant cannot be asked to account for assets found to be in his possession with arithmetic precision or pie to pie. 7. In the instant case the charge against the appellant was that during the period from 1.1.82 to 28.2.85 he was in possession of disproportionate assets valued at Rs.1,02,894.84 for which he could not satisfactorily account. The assets in possession of the appellant included a house belonging to his wife valued at Rs.2,03,213 but the learned Special Judge, Assam, Guwahati in the impugned judgment rejected the said valuation made by the prosecution and instead accepted the valuation of Sri JC Karmakar, Assistant Engineer, Assam Govt (DW 2) in Ext A at Rs.1,09,395.90. Thus an amount of Rs.93,818.00 (2,03,213-1,09,395) has to be deducted from the disproportionate assets valued at Rs. 1,02,894.847-and so deducted, the surplus assets in possession of the appellant's amount to only Rs.9,076.84 which is less than the 10% of the total income of Rs. Thus an amount of Rs.93,818.00 (2,03,213-1,09,395) has to be deducted from the disproportionate assets valued at Rs. 1,02,894.847-and so deducted, the surplus assets in possession of the appellant's amount to only Rs.9,076.84 which is less than the 10% of the total income of Rs. 1,03,484.57 of the appellant during the check period from 1.1.82 to 28.2.85. The aforesaid surplus assets of Rs.9,076.84 cannot, in any considered opinion, be held to be disproportionate to the known sources of income of the appellant within the meaning of the section 5 (1) (e) of the Prevention of Corruption Act, 1947. The appellant is entitled to acquittal on this short ground and it is not necessary for me to deal with other contentions raised by the appellant. 8. In the result, the impugned judgment and conviction and sentence so passed by the learned Special Judge, Assam, Guwahati are set aside. The appeal is allowed and the appellant is acquitted of the charge.