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2013 DIGILAW 351 (GAU)

Nalin Chandra Buragohain v. State of Assam

2013-05-28

P.K.MUSAHARY

body2013
JUDGMENT P.K. Musahary, J. 1. Heard Mr. P. Kataki, learned counsel for the petitioner. Also heard Mr. K. Munir, learned Addl. P.P., Assam, for the opposite party. This is an application filed under Section 482 Cr.P.C. challenging the legality and validity of the order dated 29.4.2005 passed by the learned Special Judge, Assam at Guwahati, in Special Case No. 3(A)/2001 whereby the charge under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 have been framed against the petitioner. 2. The prosecution case, in short, is that an enquiry being RE No. 26(5)/88, was conducted by the Vigilance and Anti Corruption Organisation (hereinafter called as VACO, in short) against the accused petitioner and in the enquiry, it was found that he acquired huge assets (movable/immovable) which are prima-facie, disproportionate to his known and legal sources of income. Accordingly, the ACB P.S. case No. 3/1992 under Section 13(1)(e)/13(2) of the P.C. Act, 1988 was registered, at the instance of the Government of Assam and the case was investigated into. 3. During investigation, the petitioner's house was searched and many documents relating to LIC/UTI, Bank account etc. and also many household properties, including hard cash of Rs. 37,684/- were seized. Some of the documents stand in petitioner's name and some of them in the name of his wife, two sons and cousins (brothers), who could not satisfactorily account for the same. Having found prima-facie case, the I.O. laid charge sheet No. 2/99 dated 30.3.1999 against the petitioner for acquiring huge assets worth approximately Rs. 26,81,713.77 in the name of his wife, Smt. Punya Buragohain, his two sons, namely, Sri Chandra Shekhar Buragohain and Sri Rajshekhar Buragohain and his two cousins, namely, Sri Pulin Buragohain and Dilip Buragohain, during his service period from 1960 to 31.5.1992. The petitioner could not account for the said assets and as such he was sent up for trial. In the meantime, prosecution sanction was obtained from the Government and the learned Special Court, on consideration of materials found on record and upon hearing the parties framed the above charges against the petitioner vide impugned order dated 29.4.2005. 4. The petitioner's case in brief, is that he joined the department of Irrigation and Flood Control as Asset Engineer in the month of July, 1967. He was posted at the various places and on 2.5.1984, he was promoted as Executive Engineer. 4. The petitioner's case in brief, is that he joined the department of Irrigation and Flood Control as Asset Engineer in the month of July, 1967. He was posted at the various places and on 2.5.1984, he was promoted as Executive Engineer. While he was holding the post of Executive Engineer, a preliminary enquiry was instituted by the Vigilance and Anti-Corruption Branch. The said inquiry relates to allegations of acquiring huge assets, which is disproportionate to the legal and known sources of income. The said inquiry was initiated as far back as in 1988 leading to registration of case RE No. 26(5)/88. The inquiry was conducted by Inspector of Police Sri S.S. Rahman and Sri S. Saikia of the Vigilance and Anti-Corruption and after completion of the said enquiry are port was submitted under the supervision Sri K. Deshmukh, IPS, Superintendent of Police, VACO. In the enquiry, it was found that the petitioner purchased immovable properties at Beltola without obtaining prior permission from the competent authority in violation of Rule 11(2) of the Assam Civil Service Conduct Rule, 1965. In the said enquiry, the Inquiry officer took note of the fact that the petitioner owned RCC Building at Milan Nagar, Dibrugarh in the name of his wife Smt Punya Prava Duragohain. The petitioner's wile disclosed her sources of income in her statement before the enquiry officer. As per the said report, the petitioner was found to have acquired assets for the check period 1966 to 31.3.1988 which is disproportionate to his known sources of income to the tune of Rs. 57,042.67 and thereafter, the Enquiry Officer made a recommendation for taking necessary departmental action as deemed fit. The said report was submitted on 24.10.1991. 5. The further case of the petitioner is that the said enquiry officer viz. Sri S. Saikia, Inspector of Police, VACO who submitted the said enquiry report before the Officer-in-charge, VACO on 28.5.1992 stating that he conducted an enquiry and in the said enquiry it was found that the petitioner acquired huge assets which was prima-facie disproportionate to the known and legal source of his income. The said Inspector of Police requested to register a case under Section 13(1)(e) and 13(2) of the P.C. Act and accordingly, on receipt of the said complaint, the S.P.-1, VACO treating the said complaint as FIR, registered a case being Vigilance Anti-Corruption No. 3/92 under the aforesaid sections of law. The said Inspector of Police requested to register a case under Section 13(1)(e) and 13(2) of the P.C. Act and accordingly, on receipt of the said complaint, the S.P.-1, VACO treating the said complaint as FIR, registered a case being Vigilance Anti-Corruption No. 3/92 under the aforesaid sections of law. 6. The petitioner has stated that the charge of investigation was initially given to Inspector K.S. Doss, DSP, and after his retirement it was handed over to Sri Bhudhar Bora, DSP arid thereafter, again it was handed over to Sri P. Chaudhury, Inspector of Police, VACO. The investigation was finally handed over to Sri Khagen Deka, another Inspector of Police, VACO. It is specifically mentioned in the petition that the Inspector of Police, Sri P. Choudhury, on 23.6.95, submitted a detailed report alongwith the materials collected during the course of investigation. According to the said Inspector Sri P. Choudhury, the total value of assets found in possession of the petitioner is Rs. 3,95,627 and his total expenditure was calculated at Rs. 3,63,019. Thus, the total expenditure amounted to Rs. 7,38,646/-. According to prosecution, the total income of the petitioner for the check period from 1966 to 31.5.1992 comes to Rs. 8,86,187/-. Thus, the total saving comes to Rs. 1,47,541/- only. Therefore, assets found in the name of the petitioner, are not disproportionate to the known source of income of the petitioner. However, from the report of the investigating officer, the properties which were found in the name of Smt. Punya Buragohain, wife of the petitioner, were also taken into consideration and total assets found in the name of Smt. Punya Buragohain is Rs. 8,56,690/- and total expenditures were shown as Rs. 11,19,690/-. Thus, her total income was taken as Rs. 7,09,649/-. But the investigating officer did not add Rs. 3,00,000/- as disclosed by petitioner's wife in her statement. 7. In respect of properties found in the name of Sri Chandra Shekhar Buragohain, the eldest son of the petitioner, it is stated in the petition that the petitioner's said son received agricultural land as gift from his grand father. According to the prosecution the total assets standing in the name of Chandra Sekhar Buragohain is Rs. 5,49,147.77 paise. 8. 7. In respect of properties found in the name of Sri Chandra Shekhar Buragohain, the eldest son of the petitioner, it is stated in the petition that the petitioner's said son received agricultural land as gift from his grand father. According to the prosecution the total assets standing in the name of Chandra Sekhar Buragohain is Rs. 5,49,147.77 paise. 8. In respect of properties of Sri Raj Shekhar Buragohain, the youngest son of the petitioner, it is stated that he was engaged in partnership business at Dibrugarh with his cousin (brother) Sri Pulin Buragohain. The partnership business commenced in the year 1989 after execution of a deed of partnership dated 30.11.1989. The petitioner's son Raj Shekhar also received gift properties from his grand father, which includes house located at Sibsagar. According to the prosecution, the total assets found in the name of Sri Raj Shekhar Buragohain is Rs. 10,12,00,876/- 9. The petitioner has stated that his cousin, Sri Pulin Buragohain, is a Government Contractor. As per the prosecution their landed properties stand in his name and the total assets found in his name is Rs. 2,59,618.68 Paise. 10. The petitioner has stated that his other cousin Sri Dilip Buragohain, is also a Contractor by profession. The prosecution claimed that the total assets standing in the name of Dilip Buragohain is Rs. 3,50,925.00. The prosecution also claims that since the documents relating to the assets of his family members were recovered from his residence and the relatives of the accused petitioner could not satisfactorily account for the assets held by them, inference could be drawn that all the properties belonging to the family members actually belong to petitioner and he had shown the said properties in different names with a view to avoid detection. 11. The petitioner claims that as sought for by the investigating agency, the petitioner furnished his income tax return. He also furnished the income tax return of his family members alongwith the balance sheet as on 31.3.1991 before the DIG of VACO on 16.11.92. The I.O. concerned submitted the charge sheet showing the total disproportionate assets as Rs. 31,86,421.71 paise taking into account the properties standing in the name of his wife, two sons and two cousins ignoring the independent income of his aforesaid family members which were shown in the relevant income tax return and balance sheet. The I.O. concerned submitted the charge sheet showing the total disproportionate assets as Rs. 31,86,421.71 paise taking into account the properties standing in the name of his wife, two sons and two cousins ignoring the independent income of his aforesaid family members which were shown in the relevant income tax return and balance sheet. As alleged by the petitioner, the learned trial Court also, while framing the charge, which is under challenge, did not take into account the independent income of the family members of the petitioner shown in their respective income tax return and balance sheet, which are submitted by them and brought on record. The basic submission of the learned counsel for the petitioner is that the assets of his wife, sons and cousins should not have been included in his total assets and properties for the purpose of showing that the petitioner is possessing assets and properties disproportionate to his known and legal source inasmuch as his wife, sons and cousins have their independent sources of income and they have shown the same in their respective income tax return and balance sheet. His submission is that if the income tax of his wife, sons and cousins are excluded, the assets and properties owned by the petitioner would not be beyond the known source of income. In support of his submission the learned counsel for the petitioner has relied upon the decision of this Court in Anand Bezbarua Vs. Union of India reported in (1993) Supp. (1) GLR 63 and State of M.P. Vs. Mohan Lal Soni reported in (2000) 6 SCC 338 . 12. As against the aforesaid submission made for the petitioner, it is submitted by Mr. K. Munir, learned Addl. P.P., Assam, appearing for the respondent State that the Court is not required to examine and consider the income tax return, balance sheet etc at the time of framing the charge and those could be taken into consideration at the time of taking evidence during hearing in the trial Court. According to him the learned trial court is to examine whether on the materials found on record, a prima-facie case is found, for framing a charge against the accused. He meant to say that it is for the accused to prove it in the trial by adducing evidence whether the wife, sons and cousins have their independent source of income. According to him the learned trial court is to examine whether on the materials found on record, a prima-facie case is found, for framing a charge against the accused. He meant to say that it is for the accused to prove it in the trial by adducing evidence whether the wife, sons and cousins have their independent source of income. It is a matter of trial and it cannot be decided at the time of framing the charge. In support of his submission learned Addl. P.P., has relied upon the State of Orissa Vs. Debendra Nath Padhi reported in 2004 AIR SCW 6813. 13. I have perused the judgment of this Court rendered in Ananda Bezbaruah's case (supra). An allegation was made against the petitioner in the said case that he amassed huge wealth by dishonest and corrupt means during his service which was grossly disproportionate to the known source of his income inasmuch as he allegedly constructed two storied building in the name of his wife and found to be in possession of disproportionate assets to the tune of Rs. 2,50,000/- apart from his own total assets worth Rs. 8,22,796.53 and the petitioner could account for Rs. 2,75,821.51 only and thereby he possessed disproportionate assets of Rs. 5,46,923.57 paise. The wife of the petitioner in the said case furnished the income tax return showing the building in her name from her own source of income and the said materials on record were not considered while framing the charge under Section 5(1)(e) and 5(2) of the P.C. Act. While disposing of the criminal revision petition, in the said case, this Court took into consideration the following question: (a) Whether the charge framed u/s. 5(1)(e) and Section 5(2) of the Act was passed after consideration of the record of the case and documents submitted therewith and were sufficient for presuming the petitioner guilty under the said Section of the Act? (b) Whether the property in the name of petitioner's wife Mrs. Era Bezbarua is a benami property and, whether materials on record, if unrebutted, is such, on the basis of which, conviction under the said Section could be said unreasonably possible. (b) Whether the property in the name of petitioner's wife Mrs. Era Bezbarua is a benami property and, whether materials on record, if unrebutted, is such, on the basis of which, conviction under the said Section could be said unreasonably possible. While answering the said question, this Court, perused the entire records including the income tax return submitted by the petitioner's wife and found that the learned trial Court at the time of framing charge did not consider the documents, particularly, the income tax return collected by the prosecution and without evaluating the same held that there was, prima facie, case against the petitioner. It was, therefore, held by this Court that the inclusion of property of the wife as benami without evaluating the materials on record, i.e., documents pertaining to income tax return etc. vitiated the proceeding as ingredient of Section 5(1)(e) of the P.C. Act were not established prima-facie. The said revision petition was allowed with the following observations: 16 The important and vital material on record was not considered by the learned Special Judge in framing the charge under Section 5(1)(e) read with Section 5(2) of the Act. Those materials on record are sufficient which gives a satisfactory account for total assets of the accused petitioner. I find it is a fit case to interfere with the order of framing of charge under the said Section of Act and accordingly I quash the same. 14. The decision of this Court in the above case has been approved by the Apex Court in the judgment rendered in Mohan Lal Soni's case (supra). The accused respondent in the above cited case was working as a road transport Inspector in the Road Transport Corporation, Bhopal, and was a public servant. A complaint was made against him alleging that he had acquired property in excess of the known source of his income. During investigation, the properties and assets belonging to his mother-in-law, father, brother and nephew, were shown as assets of the accused respondent. The assets of his wife, who was an income tax payer and as self-earning member, were also connected with the assets of the accused respondents. 15. In the above referred case, while submitting the charge sheet, several important documents related to the income tax return or income tax assessment orders collected during the course of investigation were withheld. The assets of his wife, who was an income tax payer and as self-earning member, were also connected with the assets of the accused respondents. 15. In the above referred case, while submitting the charge sheet, several important documents related to the income tax return or income tax assessment orders collected during the course of investigation were withheld. At the time of framing charge the accused respondent made an application seeking production of those documents in Court but his application was rejected stating that for the purpose of framing charge, only the documents forwarded to the Court under Section 173(5) Cr.P.C. were required to be considered. On a criminal revision filed by him, the High Court concerned allowed the same directing that the documents collected during the investigation be produced and may be taken into consideration by the Court below while framing the charge. Thereafter, the trial Court framed charges under Section 13(i)(e) read with Section 13(2) of the Act Aggrieved by the order of framing charges, the accused respondent again filed a criminal revision which was accepted by the High Court setting aside the order of learned Trial Court framing the charges and discharged the respondent. The State filed SLP which was dismissed by the Apex Court holding that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. It was also held that the Court is not required to appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, can not show that the accused committed the particular offence, then the charge could be quashed. 16. In my considered view, the decision of the Hon'ble Supreme Court in the above two cases is based on the principle of law laid down in the State of Haryana Vs. Bhajanlal reported in 1992 Supp (1) SCC 335. 16. In my considered view, the decision of the Hon'ble Supreme Court in the above two cases is based on the principle of law laid down in the State of Haryana Vs. Bhajanlal reported in 1992 Supp (1) SCC 335. To clear the position of law it would be enough if paragraph 76 of the said judgment is quoted hereunder: The gravamen of the accusation is that Sri Bhajan Lal has amassed huge assets by misusing his ministerial authority earlier to 1986 which assets are disproportionate to his known and licit source of income. It has been repeatedly pointed out that mere possession of any pecuniary resources or property is by itself not an offence, but it is the failure to satisfactorily account for such possession of pecuniary resources or property that makes the possession objectionable and constitutes the offence within the ambit of Section 5(1)(e) of the Act. Therefore, a police officer with whom an investigation of an offence u/s. 5(1)(e) of the Act is entrusted should not proceed with a pre-conceived idea of guilt of that person indicted with such offence and subject him to any harassment and victimisation, because in case the allegations of illegal accumulation of wealth are found during the course of investigation as baseless, the harm done not only to that person but also to the office he held will be incalculable and inestimable. 17. I have carefully gone through the record of the case as made available at the time of hearing. The petitioner's wife, two sons and two cousins furnished their respective income tax return to the investigating agency during investigation. They have also furnished balance sheet as on 1992 in respect of petitioner's two sons and two cousins. Those documents were submitted vide letter dated 16.11.1992 addressed to the DIG, Vigilance and Anti-Corruption, Assam, Sundarpur, Guwahati-5. From the said communication/letter, it appears that the following documents were furnished: (i) Balance sheet of Nalin Ch. Buragohain as on 31.3.1991 (ii) Balance Sheet of Punya Buragohain as on 31.3.1991. (in) Balance sheet of Pulin Buragohain as on 31.3.1992 (iv) Balance sheet of Chandra Sekhar Buragohain as on 31.3.1992 including copy of tax return. (v) Balance sheet of Raj Sekhar Buragohain as on 31.3.1992 including copy of tax return. (vi) Return and Balance sheet of M/s. R.B. Brothers (a partnership farm) for the assessment year of 31.3.1991 in favour of Dilip Buragohain. 18. (v) Balance sheet of Raj Sekhar Buragohain as on 31.3.1992 including copy of tax return. (vi) Return and Balance sheet of M/s. R.B. Brothers (a partnership farm) for the assessment year of 31.3.1991 in favour of Dilip Buragohain. 18. The petitioner filed application (No. 711/04) on 7.9.2004 before the learned trial Court for calling the copies of income tax return, Balance sheet etc. which were submitted/furnished earlier vide the aforesaid letter dated 16.11.92. From an order dated 7.7.2004 passed by the learned Special Judge, Assam, it appears that the learned P.P. failed to trace out the document and on his prayer, allowed time till 16.7.2004 to place the said application before the Court but it was never placed before the Court and no older was passed on the said petition, either rejecting or allowing the same. From the impugned order dated 29.4.2005, it also appears that the learned trial Court never bothered to get the petitioner's aforesaid application for placing the income tax return and balance sheet filed by him earlier, placed for consideration at the time of framing the charges. 19. I have, for my own satisfaction gone through the income tax return and the balance sheet as submitted by the wife, sons and cousin of the petitioner, which are available on record, although the same were not looked into and considered by the learned trial Court. 20. I find that Smt Punya Buragohain, wife of the petitioner in her income tax return for the assessment year 1992-93 had shown the landed property and assets which includes plot of land at Tinsukia, Khanapara in Guwahati and, Milanpur at Dibrugarh. The petitioner's son Chandra Shekhar Buragohain, in his income tax return for the assessment year, 1991-92, had shown details of his income from house property and other sources. His younger son Raj Shekhar Buragohain, in his income tax return for the assessment year 1992-93, had shown details of his income from business, house property, agriculture and other sources. Sri Pulin Buragohain, cousin of the petitioner, in his income tax return had shown income from business, agriculture and other sources. The other cousin of the petitioner in his income tax return for the assessment year 1991-92 had shown his profit and loss in trade. 21. Sri Pulin Buragohain, cousin of the petitioner, in his income tax return had shown income from business, agriculture and other sources. The other cousin of the petitioner in his income tax return for the assessment year 1991-92 had shown his profit and loss in trade. 21. From the documents submitted by the wife, sons and cousin of the petitioner, there is no doubt that they have their own independent business and source of income. The correctness or otherwise of the income tax return and the balance sheet submitted by them have not been questioned by the prosecution at the time of consideration and framing of charges. The prosecution has not claimed that the income tax returns submitted by the aforesaid persons have not been accepted or questioned by the income tax authority. In the eye of law unless the contrary is shown, the income tax returns submitted by them must be accepted as valid documents for the purpose of showing that they have the independent source of income and their sources of income are not dependent on the ones pertaining to the petitioner. The prosecution could not show prima-facie that the petitioner is possessing benami properties and format matter, his wife, sons and cousins are benamdars. It appears that the learned trial Court, contrary to the decision of a the Apex Court in Bhajan Lal's case (supra), proceeded with a pre-conceived idea of guilt of the present petitioner as indicted by the prosecution and passed the impugned order framing the charges mechanically without applying its independent judicial mind objectively and acted like a post office of the prosecution. Such approach of the learned Special Court is not at all acceptable in law and it must be interfered with to prevent the abuse of the process of the Court and securing the ends of justice. 22. The present case, in my considered view, is squarely covered by the decision of this Court in Anand Bezbaruah's case which has received the seal of approval of the Apex Court in Mohan Lal Soni's case(supra) and it needs no further discussion. I am also of the considered view that if the present criminal proceeding in question, is allowed to continue, it will occasion abuse of process of the Court and cause injustice to the petitioner. I am also of the considered view that if the present criminal proceeding in question, is allowed to continue, it will occasion abuse of process of the Court and cause injustice to the petitioner. Having considered the entire facts and circumstances of the case and also settled position of law, 1 set aside and quash the impugned order dated 29.4.2005. The accused petitioner stands discharged. 23. Criminal revision stands allowed. Return the LCR.