Research › Search › Judgment

Madhya Pradesh High Court · body

2001 DIGILAW 176 (MP)

N. P. JHARIA v. STATE OF M. P.

2001-02-24

S.P.KHARE

body2001
S. P. KHARE, J. ( 1 ) APPELLANT N. P. Jharia has been convicted under Section 5 (1) (e) read with Section 5 (2) of the Prevention of Corruption Act, 1947 (hereinafter to be referred to as the Act) and sentenced to rigorous imprisonment for three years and to a fine of Rs. 75,000/ -. ( 2 ) IT is not in dispute that the appellant was appointed as Sales Tax Officer on 16-9-1975 and he was occupying that post during the check period of 16-9-1975 to 31-12-1983. He was married to Pushpa Jharia (DW1) in the year 1969 and he has three children. ( 3 ) THE prosecution case is that during the period 16-9-1975 to 31-12-1983 the appellant was in possession of pecuniary resources and property worth Rs. 10,19,210/- as disproportionate to his known sources of income. A detailed discussion will be made later in this judgment. After investigation the Special Police Establishment had submitted "final Report" on 1-3-1990 informing the Court that no offence is made out against the appellant. That final report was accepted by the Special Judge on 17-4-1990. But on 1-7-1992 the S. P. E. submitted an application before the Special Judge for permisison for further investigation. The Special Judge permitted reinvestigation. Thereafter, the sanction for prosecution was obtained from the State Government on 1-3-1995 and that is Ex. P. 19. The charge sheet was filed in the Court on 24-7-1995. ( 4 ) THE accused pleaded not guilty. His defence is that he has satisfactorily accounted for all the properties in his name and in the name of his wife. ( 5 ) THE Special Judge after an exhaustive and elaborate consideration of all the documentary and oral evidence on record came to the conclusion that the total income of the appellant and his wife was Rs. 9,32,086. 90 P. and the expenditure was Rs. 18, 81,745. 81 P. and thus the value of the disproportionate assets was Rs. 9,49,658. 00. It has been further held that the submission of the F. R. once by the investigating agency was not a legal bar to make further investigation and file the charge sheet. It has also been found that the sanction for the prosecution is valid and proper. 81 P. and thus the value of the disproportionate assets was Rs. 9,49,658. 00. It has been further held that the submission of the F. R. once by the investigating agency was not a legal bar to make further investigation and file the charge sheet. It has also been found that the sanction for the prosecution is valid and proper. ( 6 ) IN this appeal it has been argued that (a) the calculation of the income and expenditure by the trial Court is erroneous and against the evidence on record, (b) there was in fact no further investigation or reinvestigation and the charge sheet has been submitted on the same evidence on which the investigating agency had formed the opinion that no case is made out and (c) the order sanctioning the prosecution is without appliction of mind as the relevant material was not considered. These are the three points which arise for determination in this appeal. ( 7 ) BEFORE dealing with the points referred above it would be appropriate to look at the relevant law. According to Section 5 (1) (e) of the Act a Public Servant is said to commit the offence of criminal misconduct :"if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income". Clause (e) was added by the Anti Corruption Laws (Amendment) Act, 1964 and the possession of assets disproportionate to known sources of income of a public servant was made a substantive offence. A corresponding provisions has been made in Section 13 (1) (e) of the Act of 1988 with certain charges but that need not be noticed as the offence in the present case is said to have been committed when the Act of 1947 was holding the field. ( 8 ) THE language used in Section 5 (1) (e) of the Act has been interpreted in several decisions of the Supreme Court. It would be enough to refer to two such decisions. ( 8 ) THE language used in Section 5 (1) (e) of the Act has been interpreted in several decisions of the Supreme Court. It would be enough to refer to two such decisions. In State of Maharashtra v. Wasudeo Ramchandra, AIR 1981 SC 1186 : (1981 Cri L 884) it has been stated that the ingredients of the offence of criminal misconduct under Section 5 (2) read with Section 5 (1) (e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the following facts before it can bring a case under Section 5 (1) (e), namely, (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known sources of income i. e. known to the prosecution and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under Section 5 (1) (e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproprtionate assets. The nature and extent of the burden cast on the accused is well settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability. ( 9 ) THE Constitution Bench of the Supreme Court in K. Veeraswami v. Union of India (1991) 3 SCC 655 has reiterated the said principles. It has been held that clause (e) creates a statutory offence which must be proved by the prosecution. It is for the prosecution to prove that the accused or any person on his behalf, has been in possession of pecuniary resources or property disproportionate to his known sources of income. When that onus is discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionality of the properties possessed by him. The section makes available statutory defence which must be proved by the accused. When that onus is discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionality of the properties possessed by him. The section makes available statutory defence which must be proved by the accused. It is a restricted defence that is accorded to the accused to account for the disproportionality of the assets over the income. But the legal burden of proof placed on the accused is not so onerous as that of the prosecution. However, it is just not throwing some doubt on the prosecution version. The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily". That means the accused has to satisfy the court that his explanation is worthy of acceptance. The burden of proof placed on the accused is an evidential burden though not a persuasive burden. The accused however, could discharge that burden of proof "on the balance of probabiliities" either from the evidence of the prosecution and /or evidence from the defence. It has been further observed that this procedure may be contrary to the well knwon principle of criminal jurisdiction laid down in Woolmington v. Director of Public Prosecutions (1935 AC 462) that the burden of proof is always on the prosecution and never shifts to the accused person. But Parliament is competent to place the burden on certain aspects on the accused as well and particularly in matters "specially within his knowledge. " (Section 106 of the Evidence Act ). Adroitly as observed in Swamy Case and reiterated in Wasudeo case (1960 Cri LJ 131) , the prosecution cannot, in the very nature of things, be expected to known the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income. It is for him to explain. Such a statute placing burden on the accused cannot be regarded as unreasonable, unjust or unfair. Nor it can be regarded as contrary to Art. 21 of the Constitution. If one possesses assets beyond his legitimate means, it goes wihtout saying that the excess is out of ill gotten gain. The assets are not drawn like nitrogen from the air. It has to be acquired for which means are necessary. It is for the public servant to prove the source of income or the means by which he acquired the assets. The assets are not drawn like nitrogen from the air. It has to be acquired for which means are necessary. It is for the public servant to prove the source of income or the means by which he acquired the assets. That is the substance of clause (e) of Section 5 (1 ). ( 10 ) POINT (a) - Assets Now the evidence on record should be appreciated bearing in mind the principles laid down in the aforesaid cases. The facts are not very much in dispute. The trial Court has summarised the assets found in possession of the appellant and his wife in para 91 of its judgment. The most valuable item is the house in the name of the appellant's wife in Dayanagar, Jabalpur. This house is on two plots bearing numbers 45 and 46 having an area of 4620 sq. ft. which was purchased on 1-3-1979 for Rs. 31,000/- A three storeyed building was constructed on these plots during the period January, 1981 to June, 1983. The constructed area is 231 Sqm on the ground floor, 252 sqm on the first floor and 251 sqm on second floor. There is a separate garage on 23 sqm. These details are available in the valuation report Ex. P 11 of the Executive Engineer (Valuation) of the Income-tax Department, Jabalpur. The value of the house has been arrived at Rs. 6,91,000/- on the basis of the cost of material and labour during the period of construction. The valuation is reasonable and it has not been disputed by the appellant. His case is that the cost of the plots is included in this valuation. That is not true. The cost of the plots is separate. Thus, the value of this house and the plots on which it has been built comes to Rs. 7,22,000/ -. ( 11 ) THE appellant has admittedly acquired House No. 40 in Padamnabhpur, Durg at a cost of Rs. 1,43,671. 00 in the year 1982 from the M. P. Housing Board as per letter dated 25-3-1986 (Ex. P. 12 ). He has further purchased five plots in Kotia Kala, Durg for Rs. 19,360/ -. Thus the value of the immovable property found in possession of the appellant and his wife is Rs. 8,85,031. 00. ( 12 ) NOW comes the cash and movables. P. 12 ). He has further purchased five plots in Kotia Kala, Durg for Rs. 19,360/ -. Thus the value of the immovable property found in possession of the appellant and his wife is Rs. 8,85,031. 00. ( 12 ) NOW comes the cash and movables. The appellant had bank accounts in Canara Bank, State Bank of Indore, Maharashtra Bank and Allahabdad Bank either in his name or in the name of his wife. The trial Court has treated the amounts deposited in these accounts as "expenditure" and the amounts withdrawn as "income". According to the learned counsel for the appellant this method of computation is faulty. After considering this aspect it is found that this would not make any substantial difference. The amount deposited from time to time is Rs. 7,39,931. 00 and the amount which has been withdrawn is Rs. 6,25,524. 00 leaving a balance of Rs. 1,14,407. 00. This must be added to the asets of the appellant and his wife. ( 13 ) ACCORDING to the prosecution the value of other movable properties found in the house of the appellant at the time of the search in the year 1986 is Rs. 1,22, 283. 00. The appellant says that the value of these articles is Rs. 80,000/ -. The list of the articles has been perused. Let the value be scaled down to Rs. 80,000/ -. Thus the total value of the immovable and movable properties comes to Rs. 10,79,438. 00. ( 14 ) EARNINGS and Savings. The trial Court has held that the income of the appellant from the salary and allowances was Rs. 89,561. 95 P during the check period of 16-9-1975 to 31-12-1983. His salary which he earned from the date of his appointment as Sales Tax Officer has been taken into account. An application has been submitted by the learned counsel for the appellant on 9-1-2001 which incorporates his explanation and arguments. It is submitted that the appellant was working as a Lecturer before joining the post of the Sales Tax Officer and during that period he had earned Rs. 50,000/ (approximately ). He has not furnished the details of his salary as Lecturer. Pushpa Jharia (D. W. 1) has deposed that her husband was posted as Lecturer at Mandsour for four years and he was getting a salary of Rs. 500/- per month at that time. 50,000/ (approximately ). He has not furnished the details of his salary as Lecturer. Pushpa Jharia (D. W. 1) has deposed that her husband was posted as Lecturer at Mandsour for four years and he was getting a salary of Rs. 500/- per month at that time. Thus the salary earned during those years comes to Rs. 24,000/- but he must have spent a major portion of it in food, clothing and the other expenses for his own maintenance and that of his family. It is not the case of the appellant that he had any saving out of his income as Lecturer and he was keeping the same in bank or elsewhere and he utilised the same in acquiring the properties after he started working as Sales Tax Officer. There is no evidence on that point. Therefore, the salary earned before the check period cannot be taken into account. ( 15 ) THE trial Court has held that the appellant's income from the agricultural land (10-15 acres) was Rs. 1,49,000/ -. This has been done on the basis of the statements Ex. P. 30 A to F. There has been no futher scrutiny. The appellant in these statements had shown that the house and some agricultural land at Mandla in the name of his father constituted joint family property. The trial Court has been very liberal in giving the allowance of Rs. 1,49,000/- as income of the appellant from his share in the joint family property simply on the basis of the said statements. That need not be disturbed by this Court as that is not challenged on behalf of the State. Thus the total income of the appellant himself during the check period has been found to be Rs. 2,38,561. 95 paise. That is not assailed on behalf of the appellant. ( 16 ) THE trial Court has held that the appellant must have used half of his income from the salary for food, clothing and other expenses of the family consisting of five persons. That is quite reasonable. The appellant could not have saved more than fifty percent of his earning from the salary. Thus he must have spent about Rs. 44,500/- The saving of the appellant from the income of his salary and the agricultural income was Rs. 1,94,061/ -. That is quite reasonable. The appellant could not have saved more than fifty percent of his earning from the salary. Thus he must have spent about Rs. 44,500/- The saving of the appellant from the income of his salary and the agricultural income was Rs. 1,94,061/ -. ( 17 ) PUSHPA Jharia (DW 1) has deposed that she was doing the work of knitting. She was found in posession of a knitting machine at the time of the search of her house. In cross examination in para 5 she has admitted that she was doing this work from the year 1975 to the year 1980 at Jabalpur while living with her husband. She used to charge Rs. 15/- to Rs. 35/- per sweater. She has not produced any account to show the scale of her knitting business. It is apparent that it was at a very moderate scale. She did not employ any other person for doing this work. She was doing it herself. The trial Court has again been charitable in treating the income of the wife of the appellant from kniting as Rs. 68,000/ -. Again this finding of the trial Court has not been challenged on behalf of the State and therefore, it is accepted as correct. Thus, the total income of the appellant and his wife from the 'known sources" as satisfactorily accounted for was Rs. 2,62,061/ -. ( 18 ) ACCORDING to the appellant his wife Pushpa Jharia had taken some land on Adhia at Sagar and she earned an amount of Rs. 32,000/- from the said land. It is further submitted that the appellants father had given an amount of Rs. 80,000/- to Pushpa Jharia by his Will. It is also contended that an amount of Rs. 75. 000/- was received by the appellant from his father's property after his death. It is also submitted that the income of Pushpa Jharia from the knitting was in fact Rs. 1, 35,000/ -. An attempt has been made to bridge the gap between the income and the property but there is no "satisfactory" explanation. It is highly abused that Pushpa Jharia (D. W 1) was cultivating the land on Adhia. The alleged Will of the father of the appellant has not seen the light of the day. The Will has not been produced. An attempt has been made to bridge the gap between the income and the property but there is no "satisfactory" explanation. It is highly abused that Pushpa Jharia (D. W 1) was cultivating the land on Adhia. The alleged Will of the father of the appellant has not seen the light of the day. The Will has not been produced. There is no evidence to show that the father of the appellant was in possession of an amount of Rs. 80,000 /- which he could give to his daughter-in-law. Similarly there is no satisfactory evidence in support of the plea that an amount of Rs. 75,000/- was received by the appellant from the property of his father after his death. These items have been rightly rejected by the trial Court. It was argued before the trial Court that an amount of Rs. 2,74,000/- was taken as loan from the relations. That argument has not been pursued in this Court in the absence of any evidence to support that plea. The accused has to satisfy the Court that his explanation is worthy of acceptance. The accused has not been able to account for satisfactorily on the basis of preponderance of probability that the total savings out of the earning of himself and his wife could be more than Rs. 2,62,061/ -. As discussed above the assets found in possession of the appellant during the check period were to the tune of Rs. 10,79,438/- Out of this the amount of Rs. 2,62,061/- should be deducted as savings. Thus, the value of the disproportionate assets comes to Rs. 8,17377/ -. This is the position which emerges even after adopting a very liberal and charitable approach towards the appellant. He has not been able to explain the sources of this income which he invested in acquiring immovable and movable properties. The gap is so large that one cannot resist the conclusion that this is an earning from dishonest means. It is an ill gotten gain. The appellant acquired disproportionate assets during the short period of the assumption of his office as the Sales Tax Officer. His income from the known sources was his salary. He could not construct a building of the type which he did during the years 1981 to 1983 from his honest earnings. It is an ill gotten gain. The appellant acquired disproportionate assets during the short period of the assumption of his office as the Sales Tax Officer. His income from the known sources was his salary. He could not construct a building of the type which he did during the years 1981 to 1983 from his honest earnings. It is to meet such type of cases that the possession of disproportionate assets was made a substantive offence by the Anti-Corruption Laws (Amendment) Act, 1964 by adding clause (e) to Section 5 (1) of the Prevention of Corruption Act, 1947 on the recommendation of the Santhanam Committee. The provision contained in Section 5 (1) (e) of the Act became a self-contained provision. The burden is on the public servant to account for the sources for the acquisition of disproportionate assets. He has to explain the disproportionality of his assets. If he fails to do so the inference would be that it has been acquired by means which were not legitimate. ( 19 ) POINT (b) :-Arguments of the learned counsel for the appellant centred around the plea that the investigating agency had submitted a final report after it was satisfied that the appellant has not committed any misconduct and therefore, investigation could not be re-opened. It appears that the investigating agency was highly mistaken in submitting the F. R. As discussed above the facts werenot very much in dispute. It was rather a matter of calculation. A computer or a calculator could do a better job than the investigative skill. It is clear that on a second thought it was found that a public servant is wrongly escaping from the clutches of the criminal law and therefore, a sanction was obtained from the Court concernd for further investigation. There is no legal bar in making such further investigation or reinvestigation or considering the case for the second time on the basis of the material which had been obtained during earlier investigation. It is only when a person has been once convicted or acquitted that he is not to be tied for the same offence. This principle has been incorporated in Section 300 of the Code of Criminal Procedure, 1973. A man should not be vexed twice for the same offence. It is only when a person has been once convicted or acquitted that he is not to be tied for the same offence. This principle has been incorporated in Section 300 of the Code of Criminal Procedure, 1973. A man should not be vexed twice for the same offence. This principle is not stretched to this extent that there could be no re-investigtion or further investigation after the submission of the final report by the investigating agency. There is nothing like res judicata in criminal proceedings at the stage of investigation. The learned counsel for the appellant has placed reliance on the decision of the Supreme Court in K. Chandrasekhar v. State of Kerala , AIR 1998 SC 2001 : (1998 Cri LJ 2897) and K. Ramsubbu v. State 1987 (1) Crimes 914 : (1988 Cri LJ 214 ). These cases dealt with different situations and have no bearing with the points in issue. No doubt, the investigating agency took about twelve years in submitting the charge sheet against the appellant. That must have caused a lot of mental agony to him. But the offence proved against the appellant is not such which can be wiped out because of the delay in the investigation or trial. That aspect can be considered while determining the quantum of sentence. ( 20 ) POINT (c)It is contended on behalf of the appellant that the sanction of the State Government vide Ex. P. 19 is not proper as it was accorded without proper application of mind. A perusal of the sanction order Ex. P. 19 and its annnexure Ex. P. 20c shows that the facts of the case were seriously considered by the officer who accorded the sanction. There could not be better case of the application of mind by the sanctioning authority. Every item of the income and the investment was considered by him in the sanction order itself and then the order was passed. There can hardly be any legitimate criticism to such a sanction order. ( 21 ) IN view of the above discussion the conviction of the appellant for the offence punishable under Section 5 (1) (e) read with Section 5 (2) of the Prevention of Corruption Act 1947 is unassailable. Keeping in view the inordinate delay in the investigation and trial (about sixteen years), the sentence of rigorous imprisonment for three years is reduced to one year. Keeping in view the inordinate delay in the investigation and trial (about sixteen years), the sentence of rigorous imprisonment for three years is reduced to one year. The sentence of fine of Rs. 75,000/- is maintained. With this modification in the sentence the appeal is dismissedappeal dismissed. .