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2013 DIGILAW 848 (GAU)

Thirmal Talukdar v. State of Assam (CBI)

2013-12-05

INDIRA SHAH

body2013
Dr. Indira Shah, J. This is an appeal against the judgment and order dated 30.05.2012, passed by the learned Special Judge, C.B.I., Assam in Special Case No. 01/2005, convicting the accused appellant under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 ('PC Act', in short) and sentencing him thereby to undergo rigorous imprisonment for 4 years with fine of Rs. 5,000/- in default of payment of fine, further rigorous imprisonment for one month. Heard Mr. T.C. Chutia, learned counsel for the appellant as well as Mr. P.N. Choudhury, learned Standing Counsel appearing on behalf of the C.B.I. 2. The appellant, herein, was a LDC and subsequently promoted as UDC in the office of the Regional Passport Officer, Guwahati, allegedly acquired assets to the tune of Rs. 28,63,822/- (approx.) in the form of land, building, Maruti Car, costly household items, Investment Certificates etc. from 01.01.1990 onwards, which was grossly disproportionate to his known sources of income. The house of the accused appellant was searched on 08.08.2002 in connection with RC-15(A)/2001 -SHG against his known sources of income of Rs. 7,23,032/-. After allowing the probable expenditure of Rs. 2,41,010/- (approx.) and also probable savings of Rs. 53,176/- (approx.) prior to 01.01.1990 i.e. the beginning of the check period, the appellant was found in possession of assets disproportionate to his known sources of income to the tune of Rs. 23,28,624/- (approx.) as on 08.08.2002. Hence, a case was registered and the Inspector of CBI, ACB, Guwahati, investigated the case. 3. On completion of investigation, charge sheet under Section 13(2) read with Section 13(1)(e) of PC Act was submitted against the accused appellant. The accused pleaded not guilty to the charge framed against him under Section 13(2) read with Section 13(1)(e) of PC Act and claimed to be tried. 4. During investigation, the prosecution examined altogether 14 witnesses and exhibited 187 No. of documents in support of its case. One witness was examined as Court witness. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded, wherein, he denied the allegations levelled against him and pleaded that he is innocent. However, he declined to adduce any defence evidence. The learned Trial Court, on conclusion of the trial, held that the total savings of the accused during the check period from 01.01.1990 to 08.08.2002 was Rs. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded, wherein, he denied the allegations levelled against him and pleaded that he is innocent. However, he declined to adduce any defence evidence. The learned Trial Court, on conclusion of the trial, held that the total savings of the accused during the check period from 01.01.1990 to 08.08.2002 was Rs. 4,89,574.52 and after deducting of 1/3 of his total income as compulsory expenditure towards household maintenance of his family, the amount comes to Rs. 4,76,118/-, on adding loan amount of Rs. 13,456.52, the amount remain with the accused but he (accused) acquired assets during that period to the tune of Rs. 19,00,141.70. The accused failed to prove that the assets found was not disproportionate to his known sources of income. Therefore, the value of assets both movable and immovable acquired by the accused within the check period was more than 10% of his known sources of income and as such, it is disproportionate to his income. Accordingly, he was held guilty under Section under Section 13(2) read with Section 13(1)(e) of PC Act. 5. It is submitted by the learned counsel for the appellant that the learned trial court considered the income of the appellant during the check period from 01.01.1990 to 08.08.2002 whereas, the appellant was in service with effect from 01.06.1985, his income from 01.06.1985 prior to 01.01.1990 was not considered. Had the income of the appellant been taken into account from the date of joining of his service, the alleged acquisition of properties by the appellant, would not have been disproportionate to his known sources of income. That apart, the income of his wife was not considered along with the income of the accused appellant. The value of the property of the appellant was also not properly assessed. The provisions of Section 17 of the PC Act was violated as the investigation of the case was done by the Inspector of Police, CBI, ACB and the charge sheet was also submitted by another Inspector of Police, CBI whereas Section 17 of the PC Act stipulates that the investigation must be done by a Deputy Superintendent of Police (DSP) or by a Police Officer of equivalent rank. 6. It was submitted that the sanctioning authority was not examined by the prosecution. 6. It was submitted that the sanctioning authority was not examined by the prosecution. In support of his submissions, learned counsel relied upon the case of State Inspector of Police, Visakhapatnam v. Surya Sankaram Karri, reported in : (2006) 7 SCC 172 , wherein in para 13, it was held as under:-- 13. Provisions of the 1988 Act, no doubt, like the 1947 Act seek to protect public servant from vexatious prosecution. Section 17 provides for investigation by a person authorized in this behalf. The said provision contains a non obstinate clause. It makes investigation only by police officers of the ranks specified herein to be imperative in character. The second proviso appended to Section 17 of the Act provides that an offence referred to in clause (e) of sub-section (1) of Section13, shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. Authorization by a Superintendent of Police in favour of an officer so as to enable him to carry out investigation in terms of Section 17 of the Act is a statutory one. The power to grant such sanction has been conferred upon the authorities not below the rank of a Superintendent of Police. The proviso uses a negative expression. It also uses the expression "shall:, Ex facie it is mandatory in character. When the authority of a person to carry out investigation is questioned on the ground that he did not fulfil the statutory requirements laid down therefor in terms of the second proviso, the burden, undoubtedly, was on the prosecution to prove the same......" 7. It is submitted by the learned Standing Counsel, CBI that as per Section 17 of the PC Act, an Inspector of Police can investigate the case in the case of Delhi Special Police Establishment, the appellant was an employee in the department of Regional Passport Office, so, there was no question of authorization by the State Government as contained in sub-clause (a) of Section 17 of the PC Act The second proviso to Section 17 states that an offence referred to in clause (e) of Sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. There is nothing on record to show that the Inspector was authorized by the Superintendent of Police to conduct the investigation. There is nothing on record to show that the Inspector was authorized by the Superintendent of Police to conduct the investigation. It is clear from the proviso to Section 17 that an offence referred to in clause (e) of Section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. 8. The salary statement of the accused from 12.06.1985 to 04.08.1985 and 04.08.1985 to 16.05.1990 to 2002 was exhibited vide Ext. 84 and Ext. 85 through Amal Ch. Biswas (P.W. 10). His salary statement from 1990 to 2002 was also exhibited vide Ext. 86 to 98. The total amount received as salary during the said period was Rs. 7,14,177/-. The loan amount of Rs. 1,00,000/-, which was sanctioned in the name of the accused, on 22.11.1997 was exhibited through Area Manager, LIC Housing Finance Ltd. (P.W. 2). As per the evidence of P.W. 2, till 08.08.2002, the accused repaid Rs. 64,533.27 as interest and Rs. 10,853.33 against the principal amount. Again on 10.12.1998, loan amount to the tune of Rs. 50,000/- was sanctioned to the accused, which was paid by him in two installments. Accused paid Rs. 11,156.88 as interest and Rs. 50,000/- as principal amount. Thus, he availed two housing loan amount of Rs. 1,50,000/- against which he made payment of Rs. 1,36,543.48. The amount remained with the accused out of the loan amount was thus Rs. 13,456.52. Therefore, the total income of the accused appellant during the check period was Rs. 7,27,633.52. 9. P.W. 4, Sri Sarbananda Das, Administrative Officer, LICI, Branch-II, Silpukhuri, Guwahati, has stated that the insurance policy of the accused issued on 28.11.1993 for sum assured Rs. 1,00,000/- with half yearly premium of Rs. 2797/- and as per his evidence and Ext. 13 (status report), the accused had paid an amount of Rs. 50,346/- towards the premium till 08.08.2002. Another LIC Policy of the accused for the sum assured of Rs. 1,50,000/- with yearly premium of Rs. 10,297/- was exhibited through P.W. 5 Smti Indrani Das. For the said LIC Policy, the accused had paid Rs. 20,594/- as premium till 08.08.2002. One more LIC Policy of the accused was exhibited through P.W. 36, Sri Birendra Kumar Das, in which, the accused had paid Rs. 20,572.50 as premium of the said policy. Thus, the total amount of Rs. 10,297/- was exhibited through P.W. 5 Smti Indrani Das. For the said LIC Policy, the accused had paid Rs. 20,594/- as premium till 08.08.2002. One more LIC Policy of the accused was exhibited through P.W. 36, Sri Birendra Kumar Das, in which, the accused had paid Rs. 20,572.50 as premium of the said policy. Thus, the total amount of Rs. 91,512.50 was paid by the accused against the LIC Policies in his name during the check period. 10. Apart from investment in the LIC policies, the accused procured certificates of Peerless General Finance and Investment Co. Pvt. Ltd. The accused appellant has several accounts in the State Bank of India, Fixed deposit account, MMDC certificate, & Children gift growth fund scheme certificate in the name of his daughter. Altogether the assets acquired by the accused was calculated to the tune of Rs. 3,33,104.82. The accused also acquired immovable property during the check period. The accused sold plots of land to P.W. 13 as well as P.W. 14 for an amount of Rs. 30,000/- and Rs. 25,000/- respectively. He had constructed one double storied RCC building and one Assam Type building during his service. The value of the land and buildings were ascertained by Shri S.K. Dutta, Assistant Engineer, Project Division-II, CPWD, Guwahati. The cost of RCC building was assessed at Rs. 11,99,684/- as per Delhi Plinth Area Rate. The total costs of the buildings were assessed at Rs. 13,09,382/- and the value of the land was assessed at Rs. 55,000/-. The value of the land was assessed as per Assam PWD rate excluding the value of land and value of the building was assessed Rs. 13,09,382/-. 11. It is Submitted by the learned counsel for the appellant that the value of the land and buildings were assessed as per Delhi Plinth Area Rate, whereas the property is situated within Assam and therefore, the value as per Delhi Plinth Area Rate would not be applicable here. The expenditure incurred by the accused during the check period was also assessed. P.W. 16 exhibited the payment of electricity bills by the accused. The expenditure incurred by the accused during the check period was also assessed. P.W. 16 exhibited the payment of electricity bills by the accused. By adducing evidence of P.W. 18, P.W. 21 and P.W. 38, the expenditure incurred by the accused towards the studies of his children, the municipality tax paid by the accused, an scooter along with helmet purchased by him, registration of the vehicle, telephone bills, charges against the mobile phones, were all considered, which comes to Rs. 1,11,142.38. The learned trial court came to the finding that the total assets acquired by the accused during the check period comes to Rs. 19,00,141.70. He received the salary during the check period to the tune of Rs. 7,14,177/-. During that period the accused also availed two loans from the LIC housing loan amounting to Rs. 1,50,000/- out of which he repaid Rs. 1,36,543.48. Therefore, an amount of Rs. 13,456.52 remained with the accused and then total income of the accused during the check period comes to Rs. 7,27,633.52 and this amount can be accepted as income of the accused from his known sources of income. The accused must have also incurred expenditure in maintaining his family. Therefore, taking into account of 1/3 of his salary income as compulsory expenditure towards household maintenance of his family, thus, savings from his income will remain at Rs. 4,76,188/- and in addition of remaining loan amount of Rs. 13,456.52, the total savings during the check period comes at Rs. 4,89,574.52 but his acquired assets during check period come to Rs. 19,00,141.70 which is much more than 10% of his known sources of income. The accused neither adduced any evidence in his defense nor could demolish the evidence adduced by the prosecution witnesses, it was held by the trial Court. 12. The cost of total plinth area of RCC double storied building was assessed at Rs. 11,996,84/- as per Delhi Plinth Area rate instead of Assam PWD rate. The price index of 1998 was taken into consideration for cost of land and building, whereas, the buildings were constructed in the year 1992. Therefore, there was no proper assessment of the cost of the buildings. 13. Learned counsel for the appellant has submitted that there was no proper sanction for the prosecution and therefore conviction of the accused appellant is not sustainable, in law. Therefore, there was no proper assessment of the cost of the buildings. 13. Learned counsel for the appellant has submitted that there was no proper sanction for the prosecution and therefore conviction of the accused appellant is not sustainable, in law. He stated that the sanctioning authority was not examined by the prosecution and therefore, the accused was prejudiced because he could not avail the opportunity of cross-examination of the sanctioning authority, which has caused miscarriage of justice, that apart, there was violation of Section 17 of the PC Act 14. In the case of Inspector of Police, Vishakhapatnam (supra), although the investigation was held by a person not authorized in law. In para 21 of the judgment, it was observed that only on the basis of illegal investigation, a proceeding may not be quashed unless miscarriage of justice is shown. 15. It appears from the case records that the sanction for prosecution was exhibited as Ext. 182 through the court witness, Ajoy Kumar. The contents of Ext. 182 clearly shows that the sanctioning authority on perusal of all materials placed before him and after applying his mind, accorded the sanction for prosecution. In the cited case of State of Karnataka v. Ameerjan, reported in (2007) 11 SCC 273 , the sanction was accorded sole on the basis of report made by IG Police and the court held that the sanction was not proper. That apart, it was observed that if the amount involved relatively small, if it is a single isolated instance and there is no evidence of habitual bribe taking or assets disproportionate to the known sources of income, that the sanctioning authority will have to carefully evaluate as to whether the interest of justice will not be adequately served by taking disciplinary action rather than by hardening the courts with full-fledged prosecution in a case of relatively trivial facts. The amount involved in the case was a sum of Rs. 300/- only. 16. For the reasons, as indicated above, this Court finds, that the investigation of the case was not fair, not authorized to conduct. The Investigating Officer was not authorized in terms of proviso to Section 13 of the Act to investigate the case for the offence committed under clause (e) of Section13 of the Act and therefore, the conviction of accused under Section 13(1)(e) and sentence thereupon are liable to be set aside. The Investigating Officer was not authorized in terms of proviso to Section 13 of the Act to investigate the case for the offence committed under clause (e) of Section13 of the Act and therefore, the conviction of accused under Section 13(1)(e) and sentence thereupon are liable to be set aside. Accordingly, it is set aside. 17. The appeal is allowed. The conviction of the accused appellant under Section 13(1)(e) is set aside and he is acquitted and set at liberty forthwith, if he is not wanted in any other case. Send back the LCRs to the learned court below along with a copy of the judgment and order. _