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2015 DIGILAW 151 (ORI)

Meghanad Nayak v. Republic of India

2015-03-02

B.P.RAY

body2015
JUDGMENT : B.P. RAY, J. This appeal is directed against the judgment dated 4.11.1995 passed by the learned Special Judge, Bhubaneswar in T.R. Case No. 34 of 1989 convicting the accused - appellant under Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 5(1) (e) of the said Act and sentencing him to undergo R.I for two years and to pay a fine of Rs. 1,00,000/- in default to undergo simple imprisonment for a further period of eighteen months. 2. Prosecution case, in brief, is that the accused-appellant while working in different capacities in the office of the Accountant General during the check period from 17.7.1971to 16.4.1988 acquired property to the tune of Rs. 3,21,300/-, which was disproportionate to his known sources of income. According to the prosecution, during the aforesaid period of time, while the income of the appellant was Rs. 3,28,321.95 paise and his expenditure was Rs. 2,00,325.89 paise, his assets were found to be to the tune of Rs, 4,49,206,36 paise. Mr. P.N. Parida, the then Inspector of Police, Special Police Establishment, Orissa, Bhubaneswar on receiving reliable information lodged an F.1. R on 15.4.1988 and on completion of investigation, the appellant was charge sheeted leading to the trial for the offence indicated above. Learned Special Judge framed charge against the appellant under Section 5(1)( e) read with Section 5(2) of the Prevention of Corruption Act. 1947 (for short, 'the Act') on 18.4.1991 and as the appellant pleaded not guilty, trial was taken up. In course of the trial, the prosecution examined as many as 33 witnesses and got admitted into the evidence, documents marked as Exts. 1 to 70. In support of his defence plea. The appellant also produced oral as well as documentary evidence. 3. On evaluation of the evidence adduced by both the sides, learned trial Court arrived at the finding that during the check periods, the income of the appellant from the known sources was Rs, 3,51,671.95 paise inclusive of Rs. 22,840/- which had not been taken into account by the Investigating Agency and that the appellant had spent Rs. 2,00,325.89 paise on himself and family members with a saving of Rs. 1,51,346.06 paise, whereas, the property in his possession during the check period was estimated at Rs 4,49,206.36 paise. The learned trial Court deducted a sum of Rs. 22,840/- which had not been taken into account by the Investigating Agency and that the appellant had spent Rs. 2,00,325.89 paise on himself and family members with a saving of Rs. 1,51,346.06 paise, whereas, the property in his possession during the check period was estimated at Rs 4,49,206.36 paise. The learned trial Court deducted a sum of Rs. 50,000/- on account of the gift received by the appellant from Rs., 2,97,860.30 paise (Rs. 4,49,206.36 paise - Rs. 1,51,346.06 paise) and ultimately, held that the property valued at Rs. 2,47,860.30 paise in possession of the appellant was disproportionate to the known sources of his income. 4. In course of argument, learned counsel for the appellant, while assailing the findings and conclusion arrived at by the learned Court below, submitted, inter alia, that the Court below for no valid reason disbelieved the evidence adduced by the defence and also failed to appreciate the prosecution evidence in right perspective inasmuch as the material discrepancies have not been taken into account and the elicitations in the cross examination of the prosecution witnesses affecting their credibility has not been given due weightage. He has taken me through the evidence of the prosecution witnesses vis-a-vis the defence evidence concerning the individual items purportedly constituting the income, expenditure and assets of the appellant. According to the learned counsel. The Court below got unduly influenced by the prosecution version, while making assessment of the income, expenditure and assets relating to the check period. On the other hand, Mr. Narasingha, learned counsel appearing for the C.8.1 sided with the findings arrived at by the learned trial Court. According to him, the learned trial Court has scrutinized the evidence meticulously and the conclusion leading to the verdict of conviction and sentence against the appellant warrants no interference in appeal. 5. Having regards to the rival contentions, at the outset, I embark upon the materials on record as regards the income of the appellant during the check period, Relying on the version of the prosecution, the learned trial Court assessed the net salary of the appellant at Rs. 95,801.95 paise and while making such assessment, the bonus amounting to Rs. 3397/- LTC advance amounting to Rs. 3725/- and the over time allowance of Rs. 95,801.95 paise and while making such assessment, the bonus amounting to Rs. 3397/- LTC advance amounting to Rs. 3725/- and the over time allowance of Rs. 1625.40 paise received by the appellant during the check period has not been taken into account, although D.W.7, the Assistant Accounts Officer in the Office of the Accountant General, has proved the aforesaid fact. Similarly, as revealed from the evidence of P.W. 19. and the documents vide Exts.30 series, the appellant has darwan a sum of Rs. 12, 9001 towards G.P.F advance which ought to have been added to his income. There is no dispute on record that the appellant had some landed property in his share and although there is no specific evidence from the side of the prosecution to controvert the defence plea that the land was being cultivated not on bhag basis but by the appellant himself, the learned trial Court assessed the agricultural income of the appellant at a reduced rate treating the land being under bhag tenant. Learned counsel for the appellant urged that on that count a sum Rs 23,1001- is to be added towards the income of the appellant. Having gone through the evidence on record in his behalf, this Court feels it to be reasonable to add Rs. 10,0001- to the income already assessed by the trial Court. 6, It would reveal from the evidence of the D.Ws. 13 and 17 coupled with the relevant cheque, bank ledger, etc. vide Exts T/24 and T/25, that the appellant had incurred a loan of Rs. 30,000/ from one, Jagamalla Singh on 16.01.1985. Similarly P.W.31, the Bank Officer, has proved that a loan of Rs. 5,000/- was availed by the wife of the appellant for the Drug House. Since the net income of the said Drug House has been taken into account by the prosecution while assessing the income of the appellant, the aforesaid amount of Rs 5,000/- ought to have been added to his income. 7. Learned trial Court has deducted a sum of Rs.100/- per month towards the salary of the salesman of the Drug House, although the net profit from that business has been estimated after excluding all the expenditures in respect of the Drug House. This Court agrees with the contention of the learned counsel for the appellant that on this count, a sum Rs. This Court agrees with the contention of the learned counsel for the appellant that on this count, a sum Rs. 5,100/- has to be added to the income of the appellant. 8. The appellant in course of the trial adduced evidence through D.W.1 that the furniture of the Drug House were sold at Rs. 15.000/-. But on the ground of absence of any documentary evidence to the above effect, the learned trial Court did not accept the defence plea in this regard. The D.W. 1 came to the witness box in the year, 1994 to speak about the sale of the furniture which took place in the year 1981. In normal course, the documents regarding the said transaction were not supposed to be preserved for a period of about 15 years. Since the closure of the Drug House is not in dispute, this Court is inclined to add Rs.5,000/- to the income of the appellant on account of sale of the furniture of the Drug House. 9. P.W.9 has deposed that pursuant to the request made by the appellant, he had lent a sum of Rs. 25, 000/- to the appellant to defray the expenses on construction of his house. Although this witness was subjected to cross - examination by the prosecution on being declared hostile, I do not find anything substantial to disbelieve the evidence of this prosecution witness in so far as his lending of a sum of Rs. 25,000/- to the appellant during the check period, is concerned. Similarly, Gadadhara Nayak, anot.her brother of the appellant, gave evidence that he had given Rs. 7,000/- to the appellant by Money Order in April, 1977 for the purpose of Medicine Shop of the appellant. The Money Order coupons entered into evidence as Exts. M-series afford corroboration to this version of the D.W.2. Regard being had to the evidence of the P.W.9 and D.W.2, a sum Rs. 32,000/- has to be added to the income of the appellant. In toto a sum of Rs, 1,08,747/- has to be added to the amount of Rs. 3,51,671/- raising the income of the appellant to Rs. 4,60,419/- during the check period. 10. Next comes the question of expenditure incurred by the appellant towards himself and his family members on different counts. In toto a sum of Rs, 1,08,747/- has to be added to the amount of Rs. 3,51,671/- raising the income of the appellant to Rs. 4,60,419/- during the check period. 10. Next comes the question of expenditure incurred by the appellant towards himself and his family members on different counts. In this context, the evidence of P.W.29, the then Statistical Investigator in the Office of the Director of Economics and Statistics assumes, significance. 11. Relying on the evidence of P.W. 29 and his reports vide Exts. 47 and 48, the learned trial Court held that the house - hold expenditure of the appellant under different heads was Rs. 1,15,738 /- whereas his income from salary was calculated at Rs. 95,802/-. The learned counsel for the appellant criticized the assessment made by P.W.29 as also the finding of the Court below in that respect on the ground that the standard expenditure of a public servant cannot be more than his salary income for a specified period. Relying on the decision in the case of Sajan Singh v. State of Punjab, AIR 1964 SC 464 , learned counsel argued that the expenditure of a public servant on household cannot be standarised at more than his salary income. 12. I have gone through the reported authority as relied upon. With due respect, may I state here that no principle was settled in the said case regarding calculation of household expenses vis-a-vis the salary income. In the facts and circumstance involved in the said case, the Hon'ble apex Court calculated the household expenditures of the appellant therein at 1/3rd of his salary income during the check period. 13. Be that as it may, to appreciate the defence contention, I have gone through the evidence of the P.W. 29. During cross-examination, this witness conceded that his report was least concerned with the practical way of life of a particular person. In paragraph -11, he stated that he prepared a mechanical report considering the facts supplied by the prosecution. He also admitted that in respect of Bhubaneswar, there was no National Sample Survey Report and Price Indices was supposed to vary in different parts of Orissa. He also agreed that the defence suggestion that no hard and fast rule could be laid down to prepare income and expenditure of an individual. He also admitted that in respect of Bhubaneswar, there was no National Sample Survey Report and Price Indices was supposed to vary in different parts of Orissa. He also agreed that the defence suggestion that no hard and fast rule could be laid down to prepare income and expenditure of an individual. His evidence reveals that he relied on National Sample Survey Reports an9 the Price Indices meant for Urban Non - Manual employees published by Central Statistical Organization, New Delhi without any specific reference to Bhubaneswar or the place of residence of the appellant during the check period. Having scrutinized the evidence of this official witness, this Court feels it reasonable to assess the expenditure of the appellant during the check period at the proportion of 75% of his net salary, which comes to Rs. 72,0001- 14. Now adverting to the valuation of the other items of property in possession of the appellant, I first take up the two residential buildings, one at Bhubaneswar and the other at Sahadapada. Relying on the evidence of P.W.13, learned trial Court held that the building at Bhubaneswar was valued at Rs. 3,35,912/- and that at Sahadapada was valued at Rs. 57, 323/-. The learned trial Court did not accept the defence evidence to the effect that the cost of construction of the house at Bhubaneswar was Rs. 2, 05, 0001- and the cost of the building at Sahadapada was Rs. 43, 0001 -. The learned trial Court while appreciating the evidence of P.W.13 has not given due weightage to the elicitations made during the cross- examination by the defence. In paragraph -9 of his deposition, this witness stated that the rate of construction will vary depending on the use of Granite stone, Laterite Stone or bricks and the cost of construction with Laterite Stone will be less compared to the cost involved in construction with Granite Stone or bricks. He admits not to have examined the nature of materials used in the construction of the building and compound wall and he calculated the cost on the basis of bricks. He has further admitted in paragraph-10 of his evidence that he did not assess the fabrication work separately. He failed to remember as to what was the quality of wood used in the door frame of the buildings. He has further admitted in paragraph-10 of his evidence that he did not assess the fabrication work separately. He failed to remember as to what was the quality of wood used in the door frame of the buildings. He agreed with the defence suggestion that if a house is constructed under personal supervision of the owner, some amount has to be deducted from the cost of construction. A scrutiny of the evidence of this witness leaves a room for doubt about the genuineness of the valuation made by him in respect of the building inasmuch as he concedes to have not been meticulous and practical while assessing the individual items of material used in the construction work. 15. So far as the house at Sahadapada is concerned, the P.W.13 has further conceded that the said house being situated at a rural area, the cost of labour was less compared to the cost of labour at urban area like Bhubaneswar. He did not deny or accept the defence suggestion that the cost of the building at Sahadapada was Rs.39,200/-. At the same time, he affirmed that if the building was constructed in the year 1981, the cost of construction would be less than what he calculated. It be mentioned here that according to the appellant, the said building was constructed in the year 1981. The ultimate version of P.W. 13 during cross- examination is that he did not take into consideration the actual while evaluating the buildings and that by measuring the plinth area, he evaluated the buildings basing on the CPWD rate. Having scrutinized the evidence of the P. W. 13 coupled with the evidence adduced by the defence, this Court fees it just and reasonable to deduct a sum of Rs. 50,000/-Jrom the assessed cost of the building at Bhubaneswar and Rs. 10, 000/ from the assessed cost of the building at Sahadapada. 16. It is rightly pointed out by the learned counsel for the appellant that although the net profit of the medicine shop was calculated by the Investigating Agency, obviously, after deducting all the expenditure including the cost of the Refrigerator, the cost of the Refrigerator amounting to Rs. 3654/- ought not to have been again included in the assets of the appellant. The learned trial Court lost sight of this aspect while assessing the value of the assets in terms of money. . 3654/- ought not to have been again included in the assets of the appellant. The learned trial Court lost sight of this aspect while assessing the value of the assets in terms of money. . In toto, a sum of Rs. 63,654/- therefore is to be deducted from Rs. 4,49,206/-. 17. As an obstruction it is found that while the income of the appellant during the check period. was to the tune of Rs. 4,60,419/- and expenditure was to the tune of Rs. 72,000/- leaving the savings amounting to Rs. 3,88,419/- the property in his possession was Rs. 3,85,552/-. Accordingly, during the check period, the appellant had not amassed any property disproportionate to his known sources of income. The findings of the learned trial Court leading to conviction of the appellant, being not based upon correct appreciation of evidence, cannot be sustained. 18. In the result, the appeal is allowed, the Judgment of conviction and sentence passed by the learned trial Court against the appellant is hereby set aside. The bail bond of the appellant be discharged.