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Madhya Pradesh High Court · body

2008 DIGILAW 1197 (MP)

JAGDISH LALDAS BADOLE v. STATE OF MADHYA PRADESH

2008-09-26

A.K.SHRIVASTAVA

body2008
Judgment ( 1. ) FEELING aggrieved by the judgment of conviction and order of sentence dated 5-10-1996 passed by learned 5th Additional Sessions Judge and Special judge (CBI), Jabalpur in Special Case No. 52/87 convicting appellant under section 5 (1) (e) read with Section 5 (2) of Prevention of Corruption Act, 1947 (in short the Act) and thereby sentencing him to suffer R. I. of three years and fine of Rs. 30,000/-, in default of payment of fine, further RI of one year, the appellant has knocked the door of this Court by preferring this appeal under section 374 (2) of Code of Criminal Procedure, 1973. ( 2. ) IN brief, the case of prosecution is that appellant was serving on the post of Assistant Controller of Estate Duty of Income Tax Department at jabalpur. He joined his services in the year 1973 as Inspector of Income Tax and thereafter in 1982 he was promoted to the rank of Income Tax Officer. During the year 1986 he was holding the post of Assistant Controller of Estate Duty and thereafter on 4-11-1986 he was put under suspension by the Income Tax department. ( 3. ) IT is the further case of prosecution that appellant being a public servant accumulated and was possessing the huge assets in his own name and in the name of his wife and dependents, during the check period between January, 1981 to October, 1986, which were found disproportionate to the known sources of his income for which he was unable to submit necessary accounts. ( 4. ) THE residential house of appellant is situated at Jabalpur was searched on 21-10-1986 and during search incriminating documents relating to possession of assets both movable and immovable were seized and the assets were found to be disproportionate to the known sources of income to the extent of Rs. 2,24,103. 00, the details of which are mentioned in the charge-sheet. ( 5. ) THE Investigating Agency after investigation was over and after obtaining the requisite sanction to launch prosecution against the appellant, filed charge-sheet under Section 5 (1) (e) read with Section 5 (2) of the Act before learned Special Judge who framed charges punishable under Section 5 (1) (e) read with Section 5 (2) of the Act, which appellant denied and requested for trial. ( 6. ( 6. ) IN order to bring home the charges, prosecution examined as many as "28 witnesses and placed Exhs. P-l to P-288, the documents on record. The defence of appellant is of false implication. In support of his defence, he examined Suresh Rajaram (D. W. 1), H. R. Jhambhulkar (D. W. 2), Lala (D. W. 3), Sholaram Saduji Bhaisare (D. W. 4), Chintaman (D. W. 5), R. K. Modwani (D. W. 6), Sunil Balawani (D. W. 7), Purushottam Bhai Patel (D. W. 8), Nirmal prajapati (D. W. 9), Suresh Chand Bagadi (D. W. 10), Madhukar Retram gayakwad (D. W. 11) and Madhukar Rao (D. W. 12 ). ( 7. ) LEARNED Special Judge, on the basis of the evidence placed on record, came to hold that in total appellant was having income of Rs. 4,29,759/-during the check period (see Para 49 of the impugned judgment) and the appellant was having in his possession disproportionate assets to the known sources of his income of Rs. 95,666/-, as a result of which convicted him and passed the sentence which I have already mentioned hereinabove. ( 8. ) IN this manner, present appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. ( 9. ) THE contention of Shri S. C. Datt, learned Sr. Counsel for the appellant, is that the prosecution has accepted that the gold and silver ornaments, which were seized from the house of the appellant, were with him prior to the check period and belonged to his wife and, therefore, learned special Judge erred in adding the value of gold and silver ornaments of rs. 60,400. 00 in the assets of the appellant because these ornaments are the stridhan of wife of the appellant and, therefore, they were not required to be added in the assets of the appellant. It has also been put forth by him that it is not the case of prosecution that the gold and silver ornaments having value of rs. 60,400/-, which is Stridhan of the wife of appellant, is to be added in the assets of the appellant and, therefore, learned Special Judge has made out a case which is not even the case of prosecution. The contention of learned Senior Counsel is that if the valuation of Rs. 60,400. 00 of gold and silver ornaments is deducted from the alleged disproportionate assets of Rs. 95,666. The contention of learned Senior Counsel is that if the valuation of Rs. 60,400. 00 of gold and silver ornaments is deducted from the alleged disproportionate assets of Rs. 95,666. 00, the remaining balance would come to Rs. 35,266. 00 and the percentage of Rs. 35,266. 00 would be less than 10% of Rs. 4,27,757. 00, which is the total income assessed by learned Special Judge and, therefore, as per the decision of Supreme Court Krishnanand Agnihotri Vs. State of M. P. , AIR 1977 SC 796 , if the excess amount is comparatively small and is less than 10% of total income, it would not be right to hold that the assets found in the possession of the accused is disproportionate to his known sources of his income. Learned Senior Counsel has also placed reliance on State of maharashtra Vs. Pollonji Darabshaw Daruwalla, AIR 1988 SC 88 . ( 10. ) IT has also been put forth by learned Senior Counsel that learned special Judge in Para 40 of its judgment observed that according to Awdhesh pratap Singh (P. W. 16), the valuation of the house excluding the land value is rs. 3,30,000. 00 and the said house was constructed in between 1982 to 1984. The contention of learned Senior Counsel is that fixing the value of the house rs. 2,20,786. 50 by learned Special Judge is based on conjectures and surmises because as per the testimony of prosecution witness J. K. Verma (P. W. 6) who, at the relevant point of time was serving on the prestigious post of Commissioner, income Tax, has stated that the valuation of the house is Rs. 1,75,000. 00. In support of his contention, learned Senior Counsel has placed reliance on the decision of Single Bench of this Court in Cr. A. No. 35/1989 (A. G. Kale Vs. State of Madhya Pradesh), decided on 10-12-2004. By putting emphasis on the provisions of Section 313, Cr. PC, it has been argued that fixing the valuation of the house to be Rs. 2,20,786. 50 by learned Special Judge, in that regard, no explanation has been sought from the appellant in his statement recorded under section 313, Cr. PC, therefore, holding the valuation of Rs. 2,20,786. 50 cannot be accepted. In support of his contention, learned Counsel has placed reliance on Zwinglee Ariel Vs. 2,20,786. 50 by learned Special Judge, in that regard, no explanation has been sought from the appellant in his statement recorded under section 313, Cr. PC, therefore, holding the valuation of Rs. 2,20,786. 50 cannot be accepted. In support of his contention, learned Counsel has placed reliance on Zwinglee Ariel Vs. State of Madhya Pradesh, AIR 1954 SC 15 , Hate Singh bhagat Singh Vs. State of Madhya Bharat, AIR 1953 SC 468 and Sharad birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 . ( 11. ) ON the other hand, Shri Jayant Nikhra, learned Counsel for CBI argued in support of the impugned judgment. ( 12. ) HAVING heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed. ( 13. ) IN the present case, learned Special Judge has added a sum of rs. 60,400/-, which is value of the gold and silver ornaments of the wife of the appellant, in his assets. According to me, adding the said value in the assets of the appellant by Special Judge amounts to making out a case which is not even the case of the prosecution. In the present case, on going through the sanction order dated 21st -December, 1987 (Exh. P-142) to launch prosecution against the appellant, it is revealed that in the list of the documents annexed to this" order of sanction, value of gold and silver ornaments of the wife of the appellant has not been included. The list of assets of appellant on which prosecution is placing reliance is Exh. P-147 and which is annexed as Annexure "c" to the sanction order (Exh. P-142 ). It would be relevant to quote the entire list of assets, which reads thus: ( 14. ) NO evidence has been led by the prosecution adding the value of rs. 60,400/- of the gold and silver ornaments of the wife of the appellant and, therefore, taking into consideration this amount and adding it in the assets of the appellant by learned Special Judge is erroneous approach. The gold and silver ornaments were found prior to the check period and they belonged to the wife of the appellant since they have been obtained by her at the time of her marriage as gift and they have been obtained much before the check period. The gold and silver ornaments were found prior to the check period and they belonged to the wife of the appellant since they have been obtained by her at the time of her marriage as gift and they have been obtained much before the check period. No evidence has been led by the prosecution in order to establish that the gold and silver ornaments worth Rs. 60,400/- is of appellant and were obtained by her during the check period nor any such evidence can be led by the prosecution because it is not even their case. The Supreme Court in Krishnanand Agnihotri (supra), has held that though the prosecution alleged that certain amount lying in the name of accuseds wife was an assets belonging to the accused, no evidence at all was led on the side of prosecution to show that the moneys lying in fixed deposit in her name was provided by the accused. In this context, it would be fruitful to quote Paras 26 and 29, which read thus : "26. Then we must consider whether the sum of Rs. 11,180/- lying in fixed deposit with Allahabad Bank, Varanasi in the name of Shanti devi belonged to the appellant or to Shanti Devi. The case of the appellant in regard to this amount was as follows. The mother of the first husband of Shanti Devi died in 1945 after a brief illness. She loved Shanti Devi very much, particularly since Shanti Devis life was ruined by reason of being married to her son who was suffering from tuberculosis. She, therefore, gave away to Shanti Devi during her illness cash amounting to Rs. 2,500/-, ornaments and some gold. Subsequently, Shanti Devi sold these ornaments and gold alongwith some of her own ornaments and got an aggregate sum of rs. 5,500/- which she invested in the hosiery factory of the father of her first husband, namely, Ramadhar Avasthi on interest at the rate of 12 per cent, per annum. This amount together with interest was gradually returned by Ramadhar Avasthi to Shanti Devi and as and when the moneys were returned, they were deposited by Shanti devi in a Savings Bank account opened with Allahabad Bank, varanasi. This amount together with interest was gradually returned by Ramadhar Avasthi to Shanti Devi and as and when the moneys were returned, they were deposited by Shanti devi in a Savings Bank account opened with Allahabad Bank, varanasi. Since the interest in the Savings Bank account was small, shanti Devi, under the advice of Ramadhin Avasthi (D. W. 90), the uncle of her first husband, deposited the moneys in fixed deposit with the Allahabad Bank, Varanasi and these accumulated to Rs. 11,180/- as on 1st January, 1962. This case of the appellant was supported by the evidence of Ramadhar Avasthi (D. W. 22) and ramadhin Avasthi (D. W. 90 ). Vishwanath Avasthi (D. W. 16) also corroborated the testimony of these two witnesses on the point. It is difficult to see how in the fact of this overwhelming evidence it could be concluded that the sum of Rs, 11,180/- lying in fixed deposit in Shanti Devis name was an asset belonging to the appellant. It must be remembered that the fixed deposit stood in the name of Shanti Devi and the burden, therefore, lay on the prosecution to show that Shanti Devi was a benamidar of the appellant. It is well settled that the burden of showing that a particular transaction is benami and the apparent owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. [vide Jayadayal Poddar Vs. Mst. Bibi Hazra, (1974) 2 SCR 90 = (AIR 1974 SC 71)]. It is not enough merely to show circumstances which might create suspicion, because the Court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence. [vide Jayadayal Poddar Vs. Mst. Bibi Hazra, (1974) 2 SCR 90 = (AIR 1974 SC 71)]. It is not enough merely to show circumstances which might create suspicion, because the Court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence. Here, in the present case, no evidence at all was led on the side of the prosecution to show that the moneys lying in fixed deposit in Shanti Devis name were provided by the appellant and howsoever strong may be the suspicion of the Court in this connection, it cannot take the place of proof. It must, therefore, be held that the prosecution has failed to show that the sum of Rs. 11,180/- lying in fixed deposit in Shanti devis name belonged to the appellant. 29. There is also one further asset of Rs. 6,688/- representing the credit balance in the bank account standing in the name of Sheela devi to which we must refer. This bank account stood in the name of Sheela Devi and hence the burden of proving that the moneys in his bank account belonged to the appellant and Sheela Devi was merely his benamidar would be on the prosecution. When we turn to the evidence, we find that the prosecution has failed to discharge this burden. Beyond raising suspicion and doubt in the mind of the court, the prosecution has not been able to adduce any legal evidence of a definite character which would establish the benami character of this bank account. On the contrary, the evidence led on behalf of the appellant shows that Sheela Devi had means of her own. We have already pointed out above that from 1950 to 1953 sheela Devi was a teacher in Arya Kanya Inter College, Mirzapur and she was also giving tuitions which brought her an income of about Rs. 3,900/- [vide the evidence of Tilak Raj (D. W. 3) and Kali prasad Srivastava (D. W. 4)] and she was also carrying on insurance agency business. She could, therefore, very well have the sum of rs. 6,688/- in her bank account. Moreover, it may be noted that even after Sheela Devi went away to reside separately from the appellant, this bank account continued to stand in her name. We do not, therefore, think that the prosecution can be said to have established that the sum of Rs. 6,688/- in her bank account. Moreover, it may be noted that even after Sheela Devi went away to reside separately from the appellant, this bank account continued to stand in her name. We do not, therefore, think that the prosecution can be said to have established that the sum of Rs. 6,688/- standing to the credit of this bank account belonged to the appellant. And on the same reasoning we must hold that the National Saving Certificate for rs. 65/- standing in the name of Sheela Devi also could not be said to be an asset belonging to the appellant, since there was no legal evidence led on behalf of the prosecution which would establish definitely that the consideration for the purchase of these National saving Certificates was provided by the appellant. " ( 15. ) SIMILAR view has been taken by the Supreme Court in another decision Pollonji Darabshaw Daruwalla (supra), wherein the Supreme Court has held that if the joint deposits in the name of accused and another person, assumption that depositor whose name appears first in deposit alone is the beneficial owner of joint-deposit is erroneous and the benefit of doubt was given by the Supreme Court. In this context, Paras 12 and 13 of the said decision may be seen. ( 16. ) THUS, the value of gold and silver ornaments Rs. 60,400/-, which is the Stridhan of the wife of appellant, is to be deducted from the disproportionate assets of Rs. 95,666/-, which has been assessed by learned special Judge. After deducting Rs. 60,400/- the balance of disproportionate income would come to Rs. 35,266/- and this amount of Rs. 35,266/- is less than 10% of the total income of Rs. 4,27,757/- assessed by learned Special Judge in para 49 of the impugned judgment and, therefore, in view of the decision of supreme Court Krishnanand Agnihotri (supra), Para 33, it cannot be held that the assets found in the possession of the appellant were disproportionate to his known sources of income so as to justify raising of the presumption under sub-section (3) of Section 5 of the Act. According to me, learned Special Judge errored in convicting the appellant. ( 17. According to me, learned Special Judge errored in convicting the appellant. ( 17. ) ALTHOUGH the disproportionate asset is found to be less than 10% of the total income and I have already held that it would not constitute the offence under Section 5 (1) (e) of the Act, therefore, there is no need to decide about the valuation of the house of appellant. But, since it has been argued and I find that there is sufficient force in the submissions of learned Senior Counsel for the appellant in that regard, the said point is also being decided herewith. ( 18. ) IN the list of assets Exh. P-147 the valuation of House No. C-98, debendra Nagar, Sector II, Raipur, which was constructed during the years 1982 to 1984 has been assessed at Rs. 3,30,000/ -. However, according to J. K. Verma (P. W. 6) who is Commissioner of Income Tax, the valuation of the house in the year 1985-86 has been assessed by the income tax department to be rs. 1,75,000/- and in that regard assessment orders (Exhs. D-l and D-2) is of the income tax department is on record. Thus, the prosecutions own witness is saying that valuation of the house of appellant is Rs. 1,75,000/- and not rs. 2,20,786. 50 as held by learned Special Judge in Para 43 of its judgment. Even if the valuation of house of Rs. 1,75,000/- as admitted by prosecutions own witness J. K. Verma (P. W. 6) is ignored, holding the valuation of the house to be of Rs. 2,20,786/- by learned Special Judge in Para 43 is a conjecture. According to the statement of Awdhesh Pratap Singh (P. W. 16), the valuation of the house is Rs. 3,30,000/ -. In cross-examination Para 3, he has admitted that he was not informed about the valuation of Rs. 1,75,000/- assessed by the Income Tax department. In Para 6, he has further admitted that he has valued the house with the schedule rate of CPWD of Delhi. According to me, assessing the value of the house of appellant at Raipur from the rates prevailing at Delhi is arbitrary. Delhi is a Metropolitan city and is the capital of the country. It is a matter of common parlance that the valuation of the house at Delhi would be much higher than that the valuation of the house at Raipur. Delhi is a Metropolitan city and is the capital of the country. It is a matter of common parlance that the valuation of the house at Delhi would be much higher than that the valuation of the house at Raipur. Further this witness has admitted in Para 6 of his cross-examination that what was the rate of building material in between 1982 to 1984 at Raipur Town, he had no knowledge, therefore, according to me, it would be hazardous to accept the valuation of Rs. 3,30,000/-which has been assessed by the prosecution on the basis of the evidence of this witness. This witness has not at all stated that the valuation of the house and building material rate at Raipur is at par with that of the valuation of the building and building material rate at Delhi and, therefore, the evidence of this witness saying that the valuation of the house is Rs. 3,30,000/- is of no credential value.- ( 19. ) WHEN the valuation put by the prosecution is based on arbitrary material and data, reliance can be placed on the evidence of R. K. Modwani (D. W. 6) examined by the appellant in respect to the construction cost of the house. This witness is a Civil Engineer and is also the valuer of LIC. According to this witness, his services are also being taken by Bank of India for valuation purposes of the buildings. According to this witness, he had valued at least 3-4 thousands buildings. This witness has inspected the house of the appellant at debendra Nagar, Raipur and, according to him, in between 1982 to 1984, the valuation of ground floor is Rs. 95,750/- and valuation of first floor is Rs. 75,525/-and in this regard his valuation report is Exhs. D-7 and D-7-A. On going through these documents, it is revealed that very minutely expressing and touching each and every details, the valuation report has been given by this witness holding the valuation of the house to be Rs. 1,80,650/ -. According to him, valuation of rs. 1,80,650/- includes 10% rebate because the house was constructed in the supervision of appellant himself. According to learned Special Judge, this 10% rebate should not have been given on account of escalation of price. 1,80,650/ -. According to him, valuation of rs. 1,80,650/- includes 10% rebate because the house was constructed in the supervision of appellant himself. According to learned Special Judge, this 10% rebate should not have been given on account of escalation of price. Similarly on the basis of conjectures and surmises, learned Special Judge has held that because appellant was posted at Jabalpur, therefore, he must have obtained services of some contractor and, therefore, rebate of 10% of the cost of the house is not required to be given to him. Merely because appellant was posted at jabalpur would not mean that in his supervision the house could not be constructed. According to me, the same could have been constructed in the supervision of his father, wife and children etc. or even in the supervision of his friends and, therefore, the finding of learned Special Judge in Para 42 of the judgment is based on conjecture. ( 20. ) APART from this, holding the valuation of the house to be rs. 2,20,786. 50 by learned Special Judge and not asking any question and explanation from the appellant during his statement recorded under Section 313, Cr. PC, according to me, the valuable right of appellant explaining about the valuation of Rs. 2,20,786. 50 fixed by learned Special Judge, has been curtailed. The Supreme Court in Zwinglee Ariel (supra), has held that circumstances appearing against accused could not be considered unless opportunity is given to accused for explaining them in his examination. In this context, I may profitably place reliance on that part of Para 10 of the decision which reads thus: it further appears from his examination under Section 342, criminal Procedure Code that this case of delay was never put to him nor was he given any opportunity to explain the same. In the circumstances the alleged delay cannot be regarded as an incriminating circumstance. " ( 21. ) IN another decision Hate Singh Bhagat Singh (supra), the Supreme Court in Para 8 has held that statement of an accused is the most important matter to be considered at a trial. The Supreme Court further expressed that it has to be remembered that in this country an accused person is not allowed to enter the box and speak on oath in his own. defence. The Supreme Court further expressed that it has to be remembered that in this country an accused person is not allowed to enter the box and speak on oath in his own. defence. This may operate for the protection of the accused in some cases but experience elsewhere has shown that it can also be a powerful and impressive weapon of defence in the hands of an innocent man. In another decision Sharad Birdhichand Sarda (supra), the Supreme Court has categorically held in Para 142 that unless the circumstance appearing against an accused is put to him in his examination under Section 313 of Criminal procedure Code, the same cannot be used against him and, therefore, without providing opportunity to appellant to explain about the valuation of Rs. 2,20,786/- put forth by learned Special Judge, the same cannot be taken into consideration while holding the appellant to be guilty. ( 22. ) FOR the reasons stated herein above, I am of the view that the impugned judgment of conviction and order of sentence cannot be allowed to remain stand and the same is hereby set aside. The appeal succeeds and is hereby allowed. The appellant is acquitted from all the charges. He is on bail, his bail bonds are hereby discharged. The amount of fine, if deposited, be refunded to the appellant.