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2014 DIGILAW 1575 (BOM)

Rita Leena D'Souza v. State Through CBI/ACB/GOA

2014-07-18

A.R.JOSHI

body2014
Judgment : 1. Rule. Rule made returnable forthwith with the consent of the learned Counsel appearing for the parties. Heard learned Senior Counsel for the petitioner/original accused no.2. Also heard learned Prosecutor for the State. 2. This criminal revision is filed by original accused no.2 challenging the order dated 12/03/2014 passed by Special Judge, CBI Court at Mapusa in Special Case No.2/13/D. The said impugned order was passed by the Special Judge, CBI Court on the arguments advanced on behalf of present petitioner/accused no.2. The said arguments were advanced before framing of charge. Certain factual position leading to the filing of the present criminal revision is narrated as under: Present petitioner/accused no.2 along with her husband accused no.1 were charge sheeted before the Special Court under Prevention of Corruption Act for the offences punishable under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 and Section 109 of Indian Penal Code. So far as present petitioner/accused no.2 is concerned charges against her are that she abetted the commission of the offence under Prevention of Corruption Act committed by her husband. The case against accused no.1 was that of having found in possession of assets disproportionate to his known sources of income to the tune of Rs. 32,26,000/- and odd during his tenure as Customs Superintendent during the check period 1/01/1985 till 9/08/2002. Present petitioner/accused no.2 being his wife, allegedly aided and abetted him and also conspired with him for commission of the offences punishable under Prevention of Corruption Act. 3. Initially vide order dated 6/04/2011, then Special Judge directed framing of the charges against both the accused including present petitioner/accused no.2 for the offences punishable under Section 13(2) read with 13(1)(e) of Prevention of Corruption Act, 1988 and offence punishable under Section 109 of Indian Penal Code. This order was taken before this Court in revision and by order dated 31/10/2012, this Court remanded back the matter for fresh appraisal by the trial Court so far as present petitioner/accused no.2 and directed the trial Court to again pass appropriate orders. Under this premise, when the matter came before the trial Court, arguments were advanced before charge on behalf of present petitioner/accused no.2 and the impugned order dated 12/03/2014 was passed. Under this premise, when the matter came before the trial Court, arguments were advanced before charge on behalf of present petitioner/accused no.2 and the impugned order dated 12/03/2014 was passed. As the position stands today, the charge earlier framed against both the accused is now valid so far as accused no.1 is concerned and he has not challenged the said framing of charge before this Court. 4. Learned Senior Counsel for the petitioner/accused no.2 argued at length taking this Court to the statements of witnesses and mainly the statement of one Branch Manager of Bank of India, one T. Ravindran and submitted that the statement of said bank officials do indicate that whatever amounts given from the account of the petitioner/accused no.2 for purchase of immovable property, were the amounts raised by way of taking loans from the Bank and said loan amounts were obtained on the security of fixed deposit receipts which were in the name of both the accused and also few receipts were in the names of children of the accused and present petitioner, jointly. In short, it is submitted that the written submissions put forth before the investigating agency during investigating stage were not properly appreciated by the CBI Officers and that they have arrived at the conclusion that present petitioner/accused no.2 is abettor to the main crime allegedly committed by her husband accused no.1. 5. In order to ascertain whether under the revisional jurisdiction, it is warranted for this Court to interfere with the directions for framing charge against the present petitioner/accused no.2, this Court has gone through the reasoning given by the Special Court and specifically the reasoning in paragraphs no.11 onwards. It appears that on prima facie scrutinizing the statements of the witnesses and the documents produced, the trial Court came to the conclusion that the present petitioner/accused no.2 had allowed the parking of the funds of accused no.1 in different investments and mainly in immovable properties which were taken in her name. The list of movable and immovable properties is seen by this Court which is forming part of the charge sheet and for example suffice it to say that there are two flats in the name of the petitioner which are respectively costing Rs.2.00 lakhs and Rs.8.00 lakhs and one shop in her name costing Rs.5.00 lakhs. So also there is another shop costing Rs.15.00 lakhs. So also there is another shop costing Rs.15.00 lakhs. In fact, this is the major chunk of investments in property and which itself goes to Rs.30.00 lakhs. In this context, it is to be ascertained that according to the charge sheet there are assets to the extent of Rs.32,26,000/-and odd disproportionate to the known source of income of the accused no.1 and in that calculation even the income derived by the present petitioner/accused no.2 is also considered along with the income of accused no.1, her husband. In the opinion of this Court, this is prima facie sufficient to frame the charge against the present petitioner/accused no.2 as an abettor. Though much is argued that the petitioner was and is in employment as a bank officer in Bank of India and had independent source of income and had also obtained financial assistance from her mother and her relatives, all that ordeal as to whether or not there is proper explanation for the assets held by the petitioner and her husband, is to be done in the full fledged trial. At the threshold of the matter, considering the material available during the investigations, it is not in the fitness of the situation and much less warranted, to give a clean chit to the petitioner/accused no.2 when most of the immovable properties are in her name and which are valued more than Rs.30.00 lakhs. Needless to mention that hair splitting of the material collected by the investigating agency and pros and cons of the same, is not warranted at the threshold of framing of charge as has been reiterated in various decisions by the Hon'ble Apex Court. Some of said decisions cited before this court by learned Special Public Prosecutor for the CBI are as follows: (i) (2014) 3 SCC 383 in the case of Bhaskar Lal Sharma & Anr. V/s. Monica & Ors. (ii) (1996) 1 SCC 542 in the case of State of Maharashtra V/s. Ishwar Piraji Kalpatri & Ors. 6. Counter to the above authorities, learned Senior Counsel Shri S.D. Lotlikar for the petitioner placed reliance on the following authority: (i) 1995 Cr.L.J. 1110 in the case of Janaki Ballav Patnaik V/s. State of Orissa. V/s. Monica & Ors. (ii) (1996) 1 SCC 542 in the case of State of Maharashtra V/s. Ishwar Piraji Kalpatri & Ors. 6. Counter to the above authorities, learned Senior Counsel Shri S.D. Lotlikar for the petitioner placed reliance on the following authority: (i) 1995 Cr.L.J. 1110 in the case of Janaki Ballav Patnaik V/s. State of Orissa. The observations of the Hon'ble Apex Court in the case of Union of India V/s Prafulla Kumar Samal reported in AIR 1979 SCC 366 were brought to the notice of this Court and which were reproduced in the said authority cited above. Those observations are to the effect as to what are the considerations to be taken into account by the Court while framing the charge and the Court do have undoubted power to shift and weigh the evidence for the limited purpose of finding out whether or not prima facie case against accused has been made out and whether there is any grave suspicion against the accused which has not been properly explained, then the Court is fully justified in framing the charge and proceeding with the trial. It is also reiterated by the Hon'ble Apex Court that the test to determine the prima facie case would depend upon the facts of each case and it is difficult to lay down rule of universal application. Bearing in mind the ratios propounded by the above cited authorities by rival parties in the opinion of this Court there is nothing to interfere with the directions given in the impugned order for framing of the appropriate charge against the petitioner, more so, when apparently prima facie there is material to show that accused no.1 took assistance of accused no.2 for obtaining immovable properties out of the monetary gain obtained by him. This is more so when various payments were made in the bank account of the petitioner from the account of the accused no.1, her husband and even the loan amounts were obtained by the husband and were utilised for purchase of the immovable property in the name of petitioner/accused no.2. In the result, there is nothing to entertain the present criminal revision for discharge and, hence, the criminal revision application preferred by petitioner/accused no.2 is hereby dismissed. Rule stands discharged.