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2012 DIGILAW 1671 (PNJ)

Bal Kishan v. State of Haryana

2012-12-01

K.C.PURI

body2012
K.C.Puri, J.;— Appellant-Bal Kishan has directed the present appeal against the judgment dated 11.7.2001 and order dated 13.7.2001 passed by Shri Rajinder Kumar Bishnoi, learned Additional Sessions Judge/Special Judge, Sonepat vide which the accused-appellant stood convicted under Section 13 (1)(E) of the Prevention of Corruption Act ( in short – the P.C.Act ) and sentenced to undergo rigorous imprisonment for a period of three years and six months and to pay a fine of Rs.10,000/-. In default of payment of fine to further undergo rigorous imprisonment for a period of six months. 2. The case of the prosecution in brief is that accused purchased agricultural land, plots etc. at so many places and during investigation, it transpired that the accused purchased a plot measuring 333 square yards at Prem Nagar, Kundli and constructed two shops and 22 quarters thereupon. He filed a false affidavit about this property. The costs of shops was assessed to be Rs.40,000/- each and cost of the quarters was assessed at Rs.16,000/- each. The total cost was assessed as Rs.5,92,000/-. The cost of the plot was assessed as Rs.67,500/-. Accused purchased another plot on Narela Road along with his brother for Rs.1,01,250/-. His share came to Rs.50,625/- and five shops and fourteen quarters were constructed thereupon and it was also assessed that thereupon he spent around Rs.1,50,000/-. He also married his two daughters and one son. It is assessed that he spent around Rs.1,20,000/-. He also spent Rs.50,000/- on the repair of his house and Rs.40,000/- on the business of his son. He spent Rs.12,09,461/- whereas his income was Rs.8,63,360/- as shown in report Ex.PD. The source of income were not sufficient. The total salary paid to him was Rs.4,09,260/- and 40% of the same was considered as savings amounting to Rs.1,95,704/-. He also sold a plot measuring 1000 square yards and got Rs.1,15,000/-. The income from the rooms and shops was considered as Rs.78,000/-. The income from two shops constructed at Kundli was considered as Rs.1,92,000/- for four years. Rs.40,000/- were taken on loan from the bank for starting the business. Rs.50,000/- were borrowed for repairing the house. The income from agricultural land was considered as Rs.1,92,156/- as shown in Ex.PD and Ex.PE prepared by the revenue authorities. The assessment of the cost of building is Ex.PA. Statements of the witnesses were recorded. The accused was arrested. Rs.40,000/- were taken on loan from the bank for starting the business. Rs.50,000/- were borrowed for repairing the house. The income from agricultural land was considered as Rs.1,92,156/- as shown in Ex.PD and Ex.PE prepared by the revenue authorities. The assessment of the cost of building is Ex.PA. Statements of the witnesses were recorded. The accused was arrested. After completion of investigations challan against the accused was presented in the Court for trial of the accused. 3. Copies of documents relied upon by the prosecution were supplied to the accused. The trial Court framed charges under Section 13 (1)(E) of the PC Act against the accused. The accused pleaded not guilty to the charges and claimed trial. 4. In order to prove its case, prosecution examined Navin Kumar Goyal SDO, Panchayati Raj (PW-1), Anup Singh Clerk (PW-2), Ishwar Singh, Office Kanungo, (PW-3), Purnand Parkash (PW-4), Vinod Kumar, independent witness (PW-5), Randhawa (PW-6), Ishwar Singh (PW-7), Rajinder Singh Rana (PW-8), Sewa Singh (PW-9), Rohtash Singh (PW- 10), Diunesh Sunder (PW-11), Ravinder Kumar Gupta, Clerk (PW-12), Siri Niwas (PW-13), Raghbir Singh Patwari (PW-14), ASI Ram Kumar (PW-15), Inspector Hari Chand (PW-16), DSP Jagdish Chander, investigating officer as PW-17 and closed its evidence. 5. The accused was examined under Section 313 Cr.P.C and he denied all the incriminating circumstances appearing against him and pleaded his false implication. He examined Partap Singh as DW-1, Surender Singh as DW-2, Brij Mohan Gupta as DW-3, VP Chhabra as DW-4 and AK Jain SDO as DW-5 and closed the same. 6. The trial Court, after hearing the learned counsel for the parties, convicted and sentenced the accused-appellant, as aforesaid. 7. Feeling dissatisfied with the aforesaid judgment and order, appellants -accused has preferred the present appeal. 8. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 9. Learned counsel for the appellant has submitted that present case relates to the disproportionate assets found in possession of the appellant. The prosecution story is based upon inquiry report, which formed the basis of FIR. 8. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. 9. Learned counsel for the appellant has submitted that present case relates to the disproportionate assets found in possession of the appellant. The prosecution story is based upon inquiry report, which formed the basis of FIR. As per allegation the total income of the appellant during the check period from 1975 to 1997 was calculated as Rs.8,63,060/- and the total expenditure of the appellant during the check period was assessed as Rs.10,70,125/-, so, in this manner the allegation is that the expenditure of Rs.2,06,765/- by the appellant remained unexplained and as such the accused has committed an offence under Sections 13(i)(e) of the Prevention of Corruption Act, 1988. 10. Learned counsel for the appellant has further submitted that expenditure of Rs.10,60,000/- shown in Ex.PA is on higher side. The prosecution has relied upon the testimony of PW-1 Navin Kumar Goel, SDO Punjab Raj in this regard. This witness has stated that his assessment is based upon the rough costs assessment. The scheduled rates have not been taken into consideration by this witness while making the assessment. The appellant has examined DW-4 Shri V.P.Chhabra, SDE, Public Works Department and according to the testimony of this witness, the total amount spent upon the construction comes to Rs.5,81,000/- only, which is almost half of the amount assessed by PW-1 Navin Kumar Goel. In case the testimony of DW-4 V.P.Chhabra is taken into consideration no offence is made out by the accused-appellant. 11. Learned counsel for the appellant has further submitted that even if the testimony of DW-4 is taken into consideration, in that case also, the appellant has been able to explain the variation in income and expenditure of the appellant. According to PW-3 Ishwar Singh Kanungo, Agriculture income of the appellant for the period 1985 to 1997 is taken into consideration, in that case there could be variation of 10% on either way. In case 10% variation is taken than the income of the appellant would increase roughly about Rs.15,000/-. The trial Court has not taken into account this aspect of the case. Further the check period in the present case is from 1975 to 1997. The agriculture income of the appellant from the land for the period from 1975 to 1985 has not been taken into account. 12. The trial Court has not taken into account this aspect of the case. Further the check period in the present case is from 1975 to 1997. The agriculture income of the appellant from the land for the period from 1975 to 1985 has not been taken into account. 12. Learned counsel for the appellant has further submitted that the case of the prosecution is that Rs.1,20,000/- were spent on the marriages of three children of the appellant. The said amount has been assessed only on conjectures. The prosecution has examined PW-4 Purmanad Parkash. This witness has stated that he attended the three marriages of the children of the accused and the appellant has spent Rs.20,000/- on each of the marriages. This witness has further stated that father of the accused has in fact spent the amount. The prosecution has not declared this witness hostile, so the prosecution cannot go beyond the testimony of this witness. The prosecution also examined PW-5 Vinod Kumar, who has also stated that appellant spent Rs.20,000/- on the marriage of each of the child. This witness was declared hostile but has denied the suggestion that Rs.40,000/- were spent on the marriage of each of the child of appellant. So, in these circumstances, the appellant has exaggerated the expenditure of Rs.60,000/- by making the expenses on marriages amounting to Rs.1,20,000/- instead of Rs.60,000/-. So, the amount of Rs.60,000/- stands counted for. 13. Learned counsel for the appellant has further submitted that the trial Court has taken the savings to the extent of 40% and 60% of the amount as expenditure on household needs. It is submitted that it depends upon the person to person that how much he spent on the upkeep of the family. One person may make saving more than 50% of the income whereas the other may not be able to save even 40%. So, the state jacket formula can not be applied in respect of the saving by the appellant as held by the trial Court. 14. Learned counsel for the appellant has further submitted that the trial Court has wrongly disbelieved the testimony of Partap Singh DW-1, father-in-law of Ramesh son of the appellant and the testimony of Surinder Singh brother-in-law of Ramesh son of the appellant, both of them have stated that accused Bal Kishan has borrowed a sum of Rs.50,000/- in January 1987. 14. Learned counsel for the appellant has further submitted that the trial Court has wrongly disbelieved the testimony of Partap Singh DW-1, father-in-law of Ramesh son of the appellant and the testimony of Surinder Singh brother-in-law of Ramesh son of the appellant, both of them have stated that accused Bal Kishan has borrowed a sum of Rs.50,000/- in January 1987. The testimony of Partap Singh DW-1 Surinder Singh DW-2 has been ignored on the ground that no writing has been produced in this regard. Learned counsel for the appellant has submitted that in case the father-in-law of son or brother-in-law of the son, advanced any amount, in that case, no writing is normally conducted. The trial Court has also wrongly disbelieved their testimony by observing that the said amount is not covered by the check period. The check period is upto 1997. So, that amount is covered. 15. Learned counsel for the appellant has submitted that 10% variation in the income and expenditure has to be excluded in view of the following authorities :- 1. Jaswant Singh versus State of Punjab reported in 2010 (1) RCR (Criminal ) page 880 ; 2. State of Maharashtra versus Pollonji Darabshaw Daruwalla, reported in AIR 1988 Supreme Court page 88 ; 3. Krishnanand Agnihotri versus State of M.P. reported in 1977 AIR (SC ) page 796 ; 4. Dalip Singh versus State of Punjab reported in 2003 (4) RCR (Criminal ) page 464 ; 5. Ashok Tshering Bhutia versus State of Sikkim reported in 2011 (4) SCC page 402 ; 16. It is submitted that total unexplained income, according to the prosecution is Rs.2,06,765/-, and the appellant has explained the income to the extent of Rs.1,75,000/- as detailed below :- 1. Expenditure on marriages exaggerated by the prosecution is Rs.60,000/- ; 2. Variation in agriculture income to the extent of 10% as stated by PW-3 Ishwar Singh, Office Kanungo ; 3. Loan from DW-1 Partap Singh and DW-2 Surinder Singh i.e. Rs.50,000/- each total Rs.1,00,000/-. 17. So, it is submitted that the learned trial Court has wrongly convicted the appellant under Section 13(1)(E) of the Act. 18. Learned counsel for the appellant has further submitted that sale deed Ex.PC is in favour of son of the appellant. Ramesh Kumar was major son and he has his own business for which he has taken a loan of Rs.40,000/-. 18. Learned counsel for the appellant has further submitted that sale deed Ex.PC is in favour of son of the appellant. Ramesh Kumar was major son and he has his own business for which he has taken a loan of Rs.40,000/-. So, the sale consideration of Rs.67,500/- added in the income of appellant is totally unjust. Prayer has been made for acceptance of the appeal and for acquittal of the accused/appellant. 19. In reply to the above noted submissions, learned State counsel has supported the judgment and order of the trial court. It is submitted that the appellant has not stated about the loan amount taken from DW-1 and DW-2 to the department. They have simply come forward to support the case of the accused/appellant being relative. So, prayer has been made for dismissal of the appeal. 20. I have heard learned counsel for the appellant and learned State counsel at length and have gone through the records of the case with their able assistance. 21. The case of the prosecution in brief is that during the check period appellant has spent an amount of Rs.10,70,125/- whereas his income from known sources comes to Rs.8,63,360/- and in this manner the accused/appellant possesses property of Rs.2,06,765/- in excess from his known sources of income. The appellant, according to the allegation is the owner of two shops and thirty two rooms constructed on the plots. The costs of each shop has been assessed as Rs.40,000/- and costs of each room/quarter has been assessed as Rs.16,000/- and in this manner the appellant has spent Rs.5,92,000/-. Rs.67,500/- have been spent for purchasing the said plot. Rs.1,01,250/- were found to be spent by the accused along with his brother on the purchase of plot on Narela road in which Rs.50,625/- has been invested by the appellant. Fourteen quarters and five shops were constructed in this plot in which accused has 50% share. If the costs of Rs.3,00,000/- has been assessed to be spent on these shops and quarters, then Rs.1,50,000/- was invested by Bal Kishan. He spent Rs.1,20,000/- on the marriages of his two daughters and one son. Rs.50,000/- was stated to be spent on the repair of the house in village. Rs.40,000/- was said to be spent on opening a shop by his son and in this manner total expenditure comes to Rs.10,70,125/-. 21. He spent Rs.1,20,000/- on the marriages of his two daughters and one son. Rs.50,000/- was stated to be spent on the repair of the house in village. Rs.40,000/- was said to be spent on opening a shop by his son and in this manner total expenditure comes to Rs.10,70,125/-. 21. Regarding income, it has been mentioned that he must have saved 40% of his income from salary which comes to Rs.1,95,704/-. Rs.1,50,500/- (being half share) was received by sale of plot measuring 1000 yards. His income from agriculture comes to Rs.1,92,156/-, Rs.78,000/- as income from 65 months from rent of 2½ shops and seven quarters @ 1200/-per month. Rs.40,000/- was raised as loan for opening of a shop. Rs.1,92,000/- as income of four years. Rs.4000/- per month from the shops and Rs.50,000/- was withdrawn from GPF by accused/appellant Bal Kishan. So, in this manner, income of the appellant comes to Rs.8,63,360/-. 22. The expenditure on 32 rooms and two shops was assessed as Rs.5,81,000/- by DW-4 V.P.Chhabra, SDE. So, there is difference of Rs.11,000/- in respect of assessment of the value of the two shops and thirty two quarters. It is settled law that where there are two views, the view in favour of the accused has to be given. So, in this manner, the benefit of Rs.11,000/- goes in favour of the appellant. 23. The prosecution has added expenditure of Rs.67,500/- in respect of sale deed Ex.PC in the name of Ramesh Kumar and Satish Kumar sons of Bal Kishan appellant. Both these sons, as per record were carrying on the business of Karyana Merchant. So, the expenditure on the sale deed in favour of Ramesh Kumar and Satish Kumar sons of Bal Kishan-appellant cannot be counted for the income of Bal Kishan-appellant. 24. The trial Court has taken income of appellant from agriculture to the extent of Rs.1,92,156/-. According to PW-3 Ishwar Singh, Office Kanungo variation on either side could be in respect of agriculture income to 10%. However, the share of the income of appellant has been assessed as Rs.1,47,157/- by this witness. In case the variation of 10% is taken in favour of the accused than the appellant would have income of Rs.14,700/- more. 25. The prosecution has taken the expenditure on the income of three children to the extent of Rs.1,20,000/-. However, the evidence in this regard produced by the prosecution itself is contradictory. In case the variation of 10% is taken in favour of the accused than the appellant would have income of Rs.14,700/- more. 25. The prosecution has taken the expenditure on the income of three children to the extent of Rs.1,20,000/-. However, the evidence in this regard produced by the prosecution itself is contradictory. Purnand Parkash (PW-4) has stated that he knew the accused and attended the marriages of his three children and on each marriages Rs.20,000/- were spent. In the cross-examination this witness has stated that father of appellant was alive in 1985 and 1989 when two marriages were performed and father of the accused had born the expenses of marriages. According to the evidence on the file, father of appellant was having agriculture land, which was later on inherited by the appellant and his brothers. This witness was not got declared hostile and as such the expenditure of Rs.20,000/- on marriage of each of the child of the appellant has to be accepted. Another witness of the prosecution Vinod Kumar (PW-5) has also deposed on the line of expenditure of Rs.20,000/- on marriages of each child of the appellant. Vinod Kumar (PW-5) has denied the suggestion that Rs.40,000/- each were spent on the marriages by the appellant. So, in this manner even if it is presumed that appellant had spent on marriages of each of the three children than the expenditure comes to Rs.60,000/- and not Rs.1,20,000/- as taken by the prosecution. So, in this manner, there is a variation of Rs.60,000/- in favour of the appellant. 26. The accused has examined Partap Singh DW-1 and Surender Singh DW-2 to depose that both of them have given Rs.50,000/- each to him in the month of January 1997. Their testimony is corroborated by documentary evidence Ex.DA and Ex.DB, in which the withdrawal of Rs.50,000/- each by both these witnesses is shown. The trial Court ignored the testimony of these witnesses on the ground that no writing regarding loan for giving the amount is mentioned. However, the fact remains that normally no writing is done if the amount is advanced to the son-in-law's father. The accused has simply to make out a probable case and the testimony of Partap Singh DW-1 and Surender Singh DW-2 being corroborative by documents Ex.DA and Ex.DB, the trial Court should have given the weight to their testimony. 27. However, the fact remains that normally no writing is done if the amount is advanced to the son-in-law's father. The accused has simply to make out a probable case and the testimony of Partap Singh DW-1 and Surender Singh DW-2 being corroborative by documents Ex.DA and Ex.DB, the trial Court should have given the weight to their testimony. 27. In authority Jaswant Singh's case (supra), this Court acquitted the accused where the amount advanced by the mother, wife and mother-in-law of the accused was not taken into account. 28. In authority State of Maharashtra versus Pollonji Darabshaw Daruwalla's case (supra) the Hon'ble Apex Court has held that burden of proof to prove the disproportionate property is on the prosecution. In the same authority, the Hon'ble Apex Court has further held that liberal view must be taken of what proportion of assets in excess of the known sources of income constitutes disproportion. 29. In authority Krishnanand Agnihotri's case (supra) the Hon'ble Court has held that onus to prove the benami lies on the prosecution. 30. In authority Dalip Singh's case (supra) this Court has held that there cannot be any hard and fast rule in respect of saving by the accused. In the present case, the accused was appointed as peon in the year 1975 and thereafter he was promoted gradually to the present rank. So, a person who has started his career as Class IV employee have a tendency to save more on increase of his income. 31. In authority Ashok Tshering Bhutia's case (supra), Hon'ble Apex Court has acquitted the accused where only a sum of Rs.2,71,000/- remained unexplained, which is a marginal/partly sum, which the Government employee can save every year. 32. The prosecution has produced evidence regarding the income from agriculture from 1985 to 1995. The appellant entered into service in the year 1975. The income of the appellant from agriculture from the year 1975 to 1985 has not been taken into account. The prosecution has not been able to produce the revenue record to the extent that the appellant has acquired agriculture land only in the year 1985. The father of appellant was having agriculture land. So, a father normally helps his children. So, that aspect has also not been considered. 33. The prosecution has not been able to produce the revenue record to the extent that the appellant has acquired agriculture land only in the year 1985. The father of appellant was having agriculture land. So, a father normally helps his children. So, that aspect has also not been considered. 33. So, considering all those circumstances and the discussion made above, it is held that prosecution has not been able to satisfactorily prove the disproportionate acquisition of property by the accused. Resultantly the appeal stands accepted. The judgment and order of the trial Court stands set aside. The accused stands acquitted by giving him benefit of doubt. 34. A copy of this judgment be sent to the trial Court for strict compliance.