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2006 DIGILAW 700 (ORI)

Narahari Bhoi v. Republic of India

2006-10-11

R.N.BISWAL

body2006
JUDGMENT R. N. BISWAL, J. : The appellant calls in question the legality and propriety of the judgment and order dated 3.4.2001 passed by the Special Judge (C.B.I.), Bhubaneswar in T.R. 50/13 of 99/94 wherein he convicted the accused-appellant for the offence under Section 13(1) (e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the P.C. Act’) and sentenced him to undergo R.I. for two years and to pay a fine of Rs.1,50,000/- and in default to undergo R.I. for a further period of six months. 2. Succinctly stated the prosecution case is that it was learnt from reliable sources that the accused while working as a Messenger in Indian Overseas Bank, Jagannathpur branch under Puri district, during the period 31.3.1978 to 7.8.1992 acquired as¬sets, disproportionate to his known sources of income to the tune of Rs.1,44,040/- which he would not be able to satisfactorily accounted for. As per the allegation he received salary, advance, house rent etc. to the tune of Rs.3,15,600/-, approximately spent Rs.1,02,000/- towards food, clothing, foot-wear etc. and thus against the likely savings of Rs.2,13,600/-, he acquired assets including one building at village Jaharsasan, and another buil¬ding at his native village Garajajpur to the tune of Rs.3,57,540/-, which is disproportionate to the tune of Rs.1,44,040/- approximately. Since the allegation revealed commission of offence under Section 13(2) read with Section 13(1)(e) of the P.C. Act, a case was registered thereunder against the accused under the orders of Superintendent of Police (C.B.I.) S.P.E., Bhubaneswar authorizing Shri G. B. Pati, Inspec¬tor of Police (CBI) SPE, Bhubaneswar (P.W.24) to investigate into the case. During investigating, house of the accused was raided, inventory in respect of his assets during check period was made, on evaluation of which the same came to Rs.5,80,567.08. The income of the accused from all legitimate sources during the check period was found to be Rs.3,95,108/- out of which he spent an amount of Rs.1,71,962/- and as such his likely savings was Rs.2,23,145/-. But he was found to have possessed assets worth Rs.5,80,567/- which was disproportionate to his known sources of income by Rs,3,57,421/- and when asked, he could not satisfacto¬rily account for the same. Accordingly, after observing all formalities charge sheet was submitted against the accused for the offence under Section 13(1)(e) read with Section 13(2) of the P.C. Act. 3. But he was found to have possessed assets worth Rs.5,80,567/- which was disproportionate to his known sources of income by Rs,3,57,421/- and when asked, he could not satisfacto¬rily account for the same. Accordingly, after observing all formalities charge sheet was submitted against the accused for the offence under Section 13(1)(e) read with Section 13(2) of the P.C. Act. 3. The defence plea is that the prosecution did not take into account the income of the accused from diary and poultry and the income of several allowances, which he received from the Bank and that the cost of his building was grossly over valued. 4. To bring home the charge leveled against the accused, prosecution examined as many as 24 witnesses and exhibited 62 documents. The accused examined 5 witnesses and exhibited 3 documents to establish his plea. 5. After scanning the evidence on record, the trial Court evaluated the total assets of the accused at Rs.4,26,506/-, total income at Rs.4,38,108/- and the approximate expenditure at Rs.1,71,962/-, during the check period, and as such the likely saving was Rs.2,66,146/-. Since he accumulated assets worth Rs.4,26,506/- which was disproportionate to his known sources of income by Rs.1,60,360/- and he could not satisfactorily account for the same, the trial Court found the accused guilty of the offence under Section 13(1)(e) read with Section 13(2) of the P.C. Act and convicted and sentenced him thereunder as stated earlier. Being aggrieved with the said order of conviction and sentence the accused (hereinafter referred to as ‘appellant’) has preferred this appeal. 6. Learned counsel for the appellant submits that the trial Court over-valued the building standing in the name of the appellant in village Jaharsasan. Admittedly the plinth area of the house is 119.13 or 1260.3 sft. P.W.6 who worked as an Asst. Engineer, C.P.W.D., Bhubaneswar from 1985 to 1993 stated in his evidence that the building situated at Jaharsasan was assessed at Rs.4,55,178/- as per the C.P.W.D. rate. During cross-examination he stated that the cost of construction of house in rural areas would be less than the cost of construction in urban areas. Admittedly, Jaharsasan is a village. D.W.5, an Asst. Engineer (Building) office of the Chief Engineer (R&B) Orissa stated that valuation of a building is calculated on the basis of plinth area and that valuation of 1 sq. ft. Admittedly, Jaharsasan is a village. D.W.5, an Asst. Engineer (Building) office of the Chief Engineer (R&B) Orissa stated that valuation of a building is calculated on the basis of plinth area and that valuation of 1 sq. ft. of mosaic floor building would be Rs.500/- approximately on the date of his examination, on 20.2.2001 before the trial Court. But, in 1991 the same cost was Rs.192/- to Rs.200/- including the profit of the contractor. He further deposed that if the owner himself procures the materials and supervises the construction work then the cost would come down by 20%. In rural areas the cost would further come down to 10 to 20%. During cross-examination it was elicited from D.W.5 that the rate quoted by him was in respect of houses with mosaic flooring in kitchen and toilet and ordinary flooring in other rooms, and that the cost of construction of building in rural area would be less if clamp burnt bricks are used. The cost of other materials would be the same. If teak wood are used in the house, construction cost would naturally go up. In the present case all the rooms are of mosaic flooring. The doors and windows are fitted with panelled shutters of second-class teak wood. The windows are also fitted with ornamental M.S. grill and brass fittings. Finishing of the inner house has been made with oil bound distemper. There is a c.c. well. The house is also bounded by a wall of 4.10 metres. So it would be improper to evaluate the house in question at the rate of Rs.200/- per square feet of the plinth area. The Special Judge did not rely upon the evidence of P.W.6. He deducted 20% of the cost of the building as assessed on behalf of the prosecution and held that the cost of the building was Rs.3,64,144/-. In my view the building has been properly valued. 7. It is next, submitted by learned counsel for the appel¬lant that the expenditure found to have been incurred by the appellant with his family members is not proper. The trial Court relying on the decision of the apex Court in Sajjan Singh v. State of Punjab; 1964 SC 464 assessed the expenditure at 1/3rd of the total income, which does not appear to be improper. 8. The trial Court relying on the decision of the apex Court in Sajjan Singh v. State of Punjab; 1964 SC 464 assessed the expenditure at 1/3rd of the total income, which does not appear to be improper. 8. Learned counsel for the appellant, next, submits that the quantification of income from diary and poultry as made by the trial Court is very less which is opposed by the learned Standing Counsel, C.B.I. It transpires from the evidence of D.W.4 that the father of the accused had two country cows and some poultry birds and that he was selling 3 litres of milk per day at the rate of Rs.3/- to Rs.3.50 per seer. If the rate of milk is held to be Rs.3/- per seer, then his daily income was Rs.9/- and as such the monthly income was Rs.270/-. It was elicited from D.W.4 during cross-examination that a country cow usually gives milk for seven months in a year.So at the rate of Rs.270/- per month,the income of the father of the appellant for seven months would come to Rs.1890/-. In other words, his annual income was Rs.1890/- from selling milk. There is no evidence whatsoever with regard to income from poultry. The trial Court took a moderate view and assessed the income of the father of the appellant from diary and poultry at Rs.2,000/- per annum which in no event can be said to be on lesser side. 9. Next, the learned counsel for the appellant submits that the agricultural income of the father of the appellant was also assessed at a very low rate. It transpires from the evidence of D.W.2 that the annual yield of the land of the father of the appellant was 20 to 30 bags of pady and that the cost of one bag of paddy was Rs.200/- to Rs.220/-. His evidence is silent with regard to the extent of land possessed by father of the appel¬lant. On the other hand, it transpires from Ext.7/1, the report of the Tahasildar, Balikuda that the father of the appellant cultivated only Ac.0.11 decs. of land from 1979-80 to 1991-92.As appears, subsequently he cultivated Ac.0.14 decs. of land more from 1982-83 to 1991-92. Further he cultivated Ac.0.18 decs. of land more from 1985-86 to 1991-92 and Ac.0.5 decs. still more from 1986-87 to 1992. of land from 1979-80 to 1991-92.As appears, subsequently he cultivated Ac.0.14 decs. of land more from 1982-83 to 1991-92. Further he cultivated Ac.0.18 decs. of land more from 1985-86 to 1991-92 and Ac.0.5 decs. still more from 1986-87 to 1992. As per the report of the Tahasildar the agriculture income of the father of the appellant for the entire check period was Rs.1462/-, but the trial Court took a moderate view and fixed the annual income at Rs.1000/- per annum. So this assessment also cannot be said to be on the lesser side. 10. I do not find any reason to interfere with the order of conviction as passed by the trial Court,but with regard to the sentence imposed, in my view it is somewhat excess. The T.R. case is of the year 1994 and the judgment was passed in the year 2001. The accused-appellant underwent agony of the criminal proceeding for those seven years. Again the appeal against the order of conviction and sentence continued for a period of about six years. The appellant was a petty messenger of a Bank and his disproportionate assets to his known sources of income for a period of 14 years was only Rs.1,60,360/-. Taking all these facts into consideration, in my view it would meet the ends of justice if the sentence is reduced to R.I. of one year and the fine to Rs.1,00,000/-. 11. In the result, while the order of conviction under Section 13(1)(e) read with Section 13(2) of the P.C. Act stands confirmed, the order of sentence passed thereon by the trial Court is modified to the extent that the accused-appellant is sentenced to undergo R.I. for a period of one year and to pay a fine of Rs.1,00,000/- (one lakh) and in default to undergo R.I. for a further period of four months. The period of detention in custody, if any, be set off and the bail bonds be cancelled. Accordingly the Criminal Appeal stands dismissed with modi¬fication of the sentence only. Crl. Appeal dismissed.