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Madhya Pradesh High Court · body

2005 DIGILAW 251 (MP)

Ram Swaroop Rathore v. State of M. P.

2005-02-17

A.K.SHRIVASTAVA

body2005
ORDER 1. Appellant Ram Swaroop Rathore died on 15.6.2001. An application under section 394, CrPC was filed on behalf of his widow; praying not to abate this appeal. This Court, on 19.4.2002 allowed the application and the widow of Ram Swaroop was directed to continue the appeal. 2. Feeling aggrieved by the judgment of conviction and order of sentence dated 27.8.1997 passed by Vth Additional Sessions Judge and Special Judge (CBI), Jabalpur in Special Case No. 4/90 convicting the accused under section 13(1) (e) and 13(2) of the Prevention of Corruption Act, 1988 (for brevity 'the Act') and sentencing him to suffer rigorous imprisonment of two years and six months and fine of Rs. 25,000/-, in default, further imprisonment of one year, this appeal has been preferred under section 374(2) of the Code of Criminal Procedure, 1973. 3. The facts in brief are that Ramswaroop (hereinafter referred to as 'the accused') was serving on the post of Charge man Grade-I in the Vehicle Factory, Jabalpur. On being received a complaint against him by the CBI, his house was trapped by the CBI Inspector R.K. Shukla and S.Y. Khan. The house was searched in presence of R.K. Sahni and K.K. Sarin. An inventory as well as an observation memo was prepared. On the basis of the observation memo it was found that the accused was having disproportionate assets to the tune of Rs. 1,55,405.33. According to the prosecution, the accused being public servant was found in possession of disproportionate assets without having any pecuniary resources and from his known sources of income. According to the investigating agency the accused committed the offence under section 13(2) read with section 13(1) (e) of the Act. Shri V. Pilani Pandit gave sanction to prosecute the accused and thereafter a charge sheet was submitted. 4. The accused was charged under section 13(1) (e) read with section 13(2) of the Act which he denied and prayed for the trial. The defence of the accused is that he is innocent and has been falsely implicated. According to the accused he was contractor in the year 1958, thereafter he was appointed on the post of Supervisor Grade B in the year 1964. He became Supervisor Grade A in the year 1967. Thereafter in the year 1971 he joined Vehicle Factory where he was appointed on the post of Chargeman Grade I in the year 1980. According to the accused he was contractor in the year 1958, thereafter he was appointed on the post of Supervisor Grade B in the year 1964. He became Supervisor Grade A in the year 1967. Thereafter in the year 1971 he joined Vehicle Factory where he was appointed on the post of Chargeman Grade I in the year 1980. According to the accused, in the year 1980, while discharging his duties on the post of Chargeman Grade I, he was drawing wages to the tune of Rs. 3,500-4,000/- per month including overtime, etc. His wife was also earning certain amount by doing the stitch and tailoring work. His mother was obtaining pension since 1967. Apart from this, his son being highly qualified, as he did M.Sc. and M. Phil, was earning Rs. 1,000/- per month. The further defence of the accused is that in the year 1975 he deposited Rs. 5,000/- in the Central Bank of India for ten years. In 1979 he deposited Rs. 20,000/- in Kashi Nath Bank (V.P.), in the same year he deposited Rs. 25,000/- in Central Bank of India, Gokulpur Branch for ten years. In the year 1977 he sold the ancestral house for Rs. 10,000/- and the sale price Rs. 10,000/- he deposited in the form of FDR in the year 1981. He also sold his gun for Rs. 25,000/and in the year 1979 he sold the agricultural land situated in the State of V.P. for Rs. 13,000/-. Apart from this, he is also getting night duty and over time allowances and thus, the assets and property which he is possessing, has been acquired by him by the known sources. 5. In order to prove the charges, the prosecution examined its witnesses and the accused also examined certain witnesses in his defence. 6. The trial Court, after analyzing the evidence came to hold that the accused committed the offence for which he was charged and eventually convicted him and passed the sentence which I have mentioned hereinabove. Hence this appeal. 7. In this appeal Shri Surendra Singh, Senior counsel assisted by Shri B.M. Shrivastava, counsel, for the appellant, has submitted that the income of mother of the accused which is Rs. 58,952/- should have been added as his mother namely Yashoda Bai was living with the accused. His another contention is that the assets Rs. Hence this appeal. 7. In this appeal Shri Surendra Singh, Senior counsel assisted by Shri B.M. Shrivastava, counsel, for the appellant, has submitted that the income of mother of the accused which is Rs. 58,952/- should have been added as his mother namely Yashoda Bai was living with the accused. His another contention is that the assets Rs. 49,000/- was invested by the accused prior to the check period which is January, 1980 to January, 1989. It has been further contended that assets of Rs. 49,000/- is the amount which the accused deposited in the bank and this amount became matured and the same was reinvested by the accused and, therefore, Rs. 49,000/- should not be added as this amount was prior to the check period. The contention of learned counsel is that no reason has been assigned by the trial Court that why this amount has been taken into consideration. It has been further contended by learned counsel that the house is double storeyed and the ground floor was constructed prior to the check period while the first floor and second floor of the house were constructed during the check period and the prosecution did not examine any witness in order to prove that the ground floor was constructed in the year 1980. It has been further canvassed that the television set has been valued for Rs. 8,500/- which is incorrect as the same was black and white and its value was not more than Rs. 3,000/-. It has also been contended that previous sanction which has been obtained has not been given by the person who is competent to remove Chargeman Grade-I and, therefore, in absence of valid sanction there cannot be a valid prosecution and on the basis of invalid sanction, no conviction could have been accorded. 8. Per contra, Shri Jayant Nikhra, learned counsel for the respondent, argued in support of the impugned judgment and has contended that the trial Court considered each and every aspects of the matter and thereafter it rightly came to hold that the charges are proved and eventually the accused was rightly convicted. . 9. The finding of the trial Court is that accused was having assets of Rs. 95,940/- as a public servant without having any pecuniary resources as well as this amount was disproportionate to known sources of his income. 10. . 9. The finding of the trial Court is that accused was having assets of Rs. 95,940/- as a public servant without having any pecuniary resources as well as this amount was disproportionate to known sources of his income. 10. It be seen that according to the prosecution, the total income of accused during the check period is Rs. 5,33,281.33 and the total expenditure is Rs. 1,59,630.00. The total assets according to the prosecution is Rs. 5,39,056.64. An amount of Rs. 49,000/- was invested by the accused prior to the check period and the details are as under: (i) Central Bank 1975 Rs. 5,000/- (ii) Kashinath Bank 1979 Rs. 20,000/- (iii) Central Bank 1979 Rs. 24,000/- Total Rs. 49,000/- This amount matured and was reinvested by the accused. Indeed this amount of Rs. 49,000/- should not be added as they were prior to the check period. The statement of DW 3 A.K. Suhane and DW 5 J.S. Ahulwalia is quite relevant on this point. It would be quite relevant to rely the decision of apex Court in the case of State of Maharashtra v. Pollonji Darabshaw AIR 1988 SC 88 wherein the apex Court has held that the assets spilling over from the anterior period, if their existence is probabilised would, of course, have to be given credit to on the income side and would go to reduce the extent and the quantum of the disproportion. 11. So far as the double storeyed house of the accused is concerned, the prosecution has valued the house to Rs. 1,17,300/-. The defence of the accused is that ground floor was built in the year 1979 i.e. prior to the check period. The contention of learned counsel for the accused is that valuation put by the prosecution of Rs. 1,17,300/- of the house on the basis of the statement of PW 6 Omchandra Sahu is arbitrary. In this regard, it would be appropriate to consider the statement of PW 6 Omchandra Sahu. This witness on the date of examination was serving on the post of Executive Engineer in Jabalpur Development authority. According to him, he had inspected the house of the accused. As per his own statement, the ground floor of the house was built in the year 1979-80, first floor in the year 1983 and the second floor in the year 1984. According to him, he had inspected the house of the accused. As per his own statement, the ground floor of the house was built in the year 1979-80, first floor in the year 1983 and the second floor in the year 1984. This, he has stated on the basis of the enquiry made by him from the accused. According to him the area of ground floor of the house was 87.75 sq. metre, first floor 93.40 sq. metre and the constructed area of second floor was 11.87 sq. metre but he ascertained the value on the basis of the price index of 1983-84. It be seen that when the prosecution's own case is that the ground floor was constructed in the year 1979-80, then why Omchandra Sahu, who has been examined by the prosecution has based the cost of construction prevailing in the year 1983-84. It is a matter of common knowledge that the construction cost in the year 1979 would be lesser while it would be higher in the year 1983-84. Thus, for this reason, the valuation of Rs. 1,17,300/- put by this witness is arbitrary. In the cross-examination, he has admitted that he is not an authorized valuer on behalf of the State Government. This witness is also not an engineering graduate. In his report Ex. P-38 he has not mentioned the number of the house, name of owner, plot number and even where the house is situated. On close scrutiny of the evidence of this witness, it is found that he is unable to say in which locality he did go to inspect the house. Thus, it is difficult to hold that the house which he examined and made the valuation is the same house which is impugned in this case. No doubt he has said that he was accompanied by CBI Officer Shri Dubey but said Shri Dubey has not been examined in this case. On further scrutiny of his evidence, it is revealed that he did not measure the land. A very important fact, which cannot be marginalized and blinked away, is that the valuation report Ex. P-38 which he prepared, does not bear his signature. Thus, in this manner it is very difficult to hold the valuation put Rs. 1,17,300/- by PW 6 Omchandra Sahu is the correct valuation. According to the accused the valuation of the house is Rs. P-38 which he prepared, does not bear his signature. Thus, in this manner it is very difficult to hold the valuation put Rs. 1,17,300/- by PW 6 Omchandra Sahu is the correct valuation. According to the accused the valuation of the house is Rs. 76,275/- for this purpose he has examined DW 2 R.N. Singh. Even if the evidence of DW 2 R.N. Singh is ignored the question is on what basis the evidence of PW 6 Omchandra Sahu is to be accepted. I have already marshalled the evidence of PW 6 Omchandra Sahu, his evidence is nothing but is a conjecture and surmises and it would be hazardous to hold that the valuation of the house was Rs. 1,17,300/- on the basis of his evidence. It is the case of the prosecution that the first floor was constructed during the check period. Thus, the question hinges that when the ground floor was constructed. Indeed, in all fairness there should be a cogent evidence on behalf of the prosecution that the ground floor was also constructed during the check period. The prosecution has not examined any witness in order to prove that the ground floor was constructed in the year 1980. The trial Court in para 27 of the judgment has held that the accused in his statement, recorded under section 313, CrPC, did not deny the fact that Omchandra Sahu examined his house. However, on perusing the accused statement, it is revealed that he had specifically denied that Omchandra Sahu inspected his house. True, the accused also did not examine any witness in order to prove that the house was constructed in the year 1979, but, it is for the prosecution that the accused is in possession of pecuniary resources disproportionate to known sources of his income. It is only then for the accused to account satisfactorily for disproportionately of the property possessed. The prosecution evidence has to be assessed beyond the reasonable doubt and for discharging that burden, if such evidence is not forth coming the accused would be given the benefit of the same. It is only then for the accused to account satisfactorily for disproportionately of the property possessed. The prosecution evidence has to be assessed beyond the reasonable doubt and for discharging that burden, if such evidence is not forth coming the accused would be given the benefit of the same. To substantiate a charge under section 13(1) (e) of the Act the prosecution must prove the following ingredients, namely; (i) that the accused is a public servant; (ii) Nature and extent of the pecuniary resources or property which were found in his possession; (iii) It must be proved as to what were his known sources of income, i.e. known to the prosecution; and (iv) 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 the above ingredients are satisfactorily established, the offence of criminal misconduct as envisaged under section 13(1) (e) of the Act is complete, unless the accused is able to account for such resources or property. In other words, only after the prosecution has proved the required ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts to the' accused. In this context, I may profitably rely the decision of the apex Court in the case of M. Krishna Reddy v. State, Deputy Superintendent of Police, Hyderabad AIR 1993 SC 313 . At this juncture, it will also be fruitful to place reliance on the another decision of the Supreme Court in the case of Pollonji Darabshaw (supra). In a later decision in the case of P. Nallammal and another v. State Represented by Inspector of Police [ (1999) 6 SCC 559 ] the Supreme Court while analyzing the scope of section 13(1) (e) of the Act has held that burden of proof regarding the first limb is on the prosecution whereas the onus is on the public servant to prove the second limb. 12. Trial Court assessed that during the check period, the accused purchased milk of Rs. 14,000/-. However, milk vendor did not support the case of the prosecution. In this regard the statement of Smt. Jasveer Kaur (PW 4) is quite relevant. According to her, one Rathore was her neighbourer but she is not acquainted by his face. She cannot say the full name of said Rathore. According to her, she was selling 1 Ltr. 14,000/-. However, milk vendor did not support the case of the prosecution. In this regard the statement of Smt. Jasveer Kaur (PW 4) is quite relevant. According to her, one Rathore was her neighbourer but she is not acquainted by his face. She cannot say the full name of said Rathore. According to her, she was selling 1 Ltr. milk daily to one Rathore who was residing as her neighbourer. But, she was unable to state what was the rate of the milk in the year 1983 and 1987. This witness was turned hostile but there is nothing in her evidence in order to prove that she sold the milk to the accused. Thus, the finding of trial Court holding that the accused purchased milk to the tune of Rs. 14,000/- cannot be accepted. Merely this witness has said that I Ltr. milk was being sold by her to some Rathore, it cannot be said that said Rathore is accused only. There is no evidence on record in order to show that in the said locality, except accused there is no other Rathore. The selling of milk to the accused is not proved by the evidence of this witness. 13. According to the prosecution, during the check period the expenditure towards house-hold of accused is Rs. 81,000/- but this has not been satisfactorily proved. Purchase of milk from Jasveer Kaur is not proved, similarly the prosecution examined PW 3 Babulal Agrawal who runs the business of grocery by the name and style of M/s. Agrawal Kirana Stores. According to him, accused happens to take grocery items from his shop of Rs. 70 to 100/- per month. This witness was not declared hostile. On going through the statement of Babulal Agrawal as well as other witnesses namely: PW 7 Uday Chand and PW 8 Kanchhedilal, it is not proved that the house-hold expenditure of accused during the check period was Rs. 81,000/-. The prosecution has taken into account of Rs. 81,000/- for house-hold expenditure, but no cogent evidence has been placed in that regard. The trial Court has assessed Rs. 68,000/- towards house-hold expenditure during the check period. 14. The prosecution has assessed the value of Keltron Television set to be Rs. 8,500/-, however, there is no evidence that the said television set is a colour television. 81,000/- for house-hold expenditure, but no cogent evidence has been placed in that regard. The trial Court has assessed Rs. 68,000/- towards house-hold expenditure during the check period. 14. The prosecution has assessed the value of Keltron Television set to be Rs. 8,500/-, however, there is no evidence that the said television set is a colour television. PW 5 R.K. Sahini who was examined by the prosecution and before whom the search was made was unable to state that the television set which was checked, was a coloured one or black and white, and therefore, the cost of Rs. 8,500/- is arbitrary. The defence of accused is that the television set is a black and white and, according to him, its costs is Rs. 3,000/-. Since there is no evidence in order to show that the Keltron Television set was a coloured one, according to me, the value of Rs. 8,500/- assessed for the said television set is' arbitrary. 15. In the accused statement, the accused has specifically stated that he stated to A.O. Kaul, who searched the house, that his mother is drawing pension but the same was not taken into consideration. In this regard the accused has examined DW 1 Treasury Officer O.S. Marko who has stated that Yashoda Devi (the mother of the accused) is drawing family pension since 2.10.1967. Exs. D-1 and D-2 are the relevant documents in that regard. According to this witness earlier to 31.12.1991 said Yashoda Devi was drawing Rs. 518/- per month family pension. The contention of learned counsel for the appellant is that income of the mother has not been added by the prosecution and the trial Court has also not paid any heed to it. The finding of the trial Court is that the mother of the accused cannot be said to be the family member, since no evidence has been adduced in this regard by the accused. The finding of the trial Court is that, as per accused, he is having brothers, and if that is the position, the income of the mother shall be divided equally in the income of each brother. But, on going through the statement recorded under section 313, CrPC of the accused, there is no whisper in this regard. I failed to understand that from where learned trial Judge has arrived at such a finding. But, on going through the statement recorded under section 313, CrPC of the accused, there is no whisper in this regard. I failed to understand that from where learned trial Judge has arrived at such a finding. On the contrary it has been specifically stated by the accused in his statement of section 313, CrPC that his mother is drawing pension since 1967 and-she is residing with him. If the mother is residing with the accused, according to me, her income ought to have been added in the total income. No doubt, the accused has not examined his mother, but, there is definite evidence of DW 1 O.S. Marko that Yashoda Devi is drawing family pension. I am unable to understand that why the income of mother has not been added. The reason assigned by learned trial Judge is off the record. The finding of the trial Court is that since, the mother is not the member of joint Hindu Family of the accused, her income cannot be added in the total income. From where this finding is arrived at, I am unable to understand. Since according to the above stated case-law, the initial burden was on prosecution to prove that the mother was residing separately and was maintaining herself separately and because there is no evidence to that effect, it cannot be said that the old aged mother of the accused was residing separately. There is nothing on record to show that accused was having brothers and the mother was residing with them. Since, it has not been proved by the prosecution that mother was residing separately, therefore, her income should be added in the total income of the accused. Since the prosecution has not added the income of the mother in the total income and the trial Court refused to accept the contention of the accused in that regard, according to me, the finding arrived at by the trial Court is not in accordance with law. Indeed, the income of mother should be added in the total income of the accused. 16. So far as previous sanction under section 19 is concerned, according to me, there is no substance in the contention of learned senior counsel that it was not accorded by the competent authority. It has come in the evidence of PW 2 V. Pilani Pandit that he is the appointing authority of the Charge-man Grade 1. 16. So far as previous sanction under section 19 is concerned, according to me, there is no substance in the contention of learned senior counsel that it was not accorded by the competent authority. It has come in the evidence of PW 2 V. Pilani Pandit that he is the appointing authority of the Charge-man Grade 1. This witness is serving on the post of Deputy Director Ordnance Factory Board and in that capacity he has given permission to prosecute and the order is Ex. P-37. Thus, according to me, the sanction Ex. P-37 cannot be said to be bad in law. 17. On the basis of the reasons stated hereinabove, the conviction of deceased appellant Ram Swaroop Rathore is hereby set aside. This appeal is allowed. ............................