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2016 DIGILAW 554 (ORI)

Ashok Kumar Sahoo v. State of Orissa

2016-07-22

D.DASH

body2016
JUDGMENT : D.DASH, J. The appellant in this appeal assails the judgment of conviction and the order of sentence passed by the learned Addl. Special Judge (Vigilance), Bhubaneswar on 21.05.2011 in T.R. No. 102/12 of 2007-2002 arising out of Bhubaneswar Vigilance Case No.21 of 1999. The appellant has been convicted for having committed the offence under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter called in short as 'the Act') having found to be in possession of assets disproportionate to his known sources of income and sentenced him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.30,000/-(Rupees Thirty thousand) with default stipulation to undergo further R.I. for a period of 6(six) months. 2. Facts necessary for the purpose of this appeal be stated as under : The appellant while was working as the Sub-Inspector of Police in the district of Puri, on 21.07.98, the Vigilance Officials carried out the search of his official quarter at Bhubaneswar. During then, the house-hold articles, bank deposit receipts, motor bike and one jeep were found to be in his possession. His own land and building in occupation along with all other articles and assets were assessed to be of the value of Rs.5,96,286.35 (Rupees five lakh ninety six thousand two hundred eighty six and paisa thirty five only). The salary of his wife, who was working as a Librarian at K.B. College, Barang came to be Rs.3,83,022.50 (Rupees three lakh eighty three thousand, twenty two and paisa fifty only). The expenditure stood calculated at Rs.2,69,405.00 (Rupees two lakh ninety six thousand four hundred five only). With this probable savings was placed at Rs.1,13,617.50 (Rupees one lakh thirteen thousand six hundred seventeen and paisa fifty only) as against the assets worth of Rs.5,96,286.35 (Rupees five thousand ninety six thousand two hundred eighty six and paisa thirty five only). Thus, the disproportionate assets in the hands of the appellant stood calculated at Rs.4,82,668.85 (Rupees four lakh eighty two thousand six hundred sixty eight and paisa eighty five only). This being the state of affair as found by the Vigilance Officials, the F.I.R. to that effect was lodged with the Superintendent of Police, Vigilance, Bhubaneswr Division and a case being registered under Sec. 13(2) read with 13(1)(e) of the Act, the investigation continued and finally the charge sheet as aforesaid being placed, the appellant faced the trial. 3. This being the state of affair as found by the Vigilance Officials, the F.I.R. to that effect was lodged with the Superintendent of Police, Vigilance, Bhubaneswr Division and a case being registered under Sec. 13(2) read with 13(1)(e) of the Act, the investigation continued and finally the charge sheet as aforesaid being placed, the appellant faced the trial. 3. The appellant, while pleading as not guilty for not having any such assets in his hands, disproportionate to his known sources of income as alleged by the prosecution, placed his further case that prosecution version is not proper, inasmuch as it has not given the complete picture of his income from some known sources, which have rather been suppressed for the purpose. Moreover, while going to deny the seizure of house-hold articles from his house, it is his contention that the motor bike and the jeep, which were said to be lying there at the time of search do not belong to him and he does not own those. 4. With the above rival case, the trial court has rightly formulated following four points for determination :-(i) whether the total income of the appellant and his wife during the check period has been correctly taken, (ii) whether the total expenditure of the appellant and his family members have been correctly assessed; (iii) whether the prosecution has correctly valued the probable savings of the appellant; and lastly that if there remains in the hands of the appellant the assets disproportionate to his known sources of income. 5. At this stage, it would be profitable to place a comparative table of income and expenditure:-. COMPARATIVE TABLE OF INCOME & EXPENDITURE. Sl. 5. At this stage, it would be profitable to place a comparative table of income and expenditure:-. COMPARATIVE TABLE OF INCOME & EXPENDITURE. Sl. No. Heading As per F.I.R. As per Charge Sheet As per Judgment of the trial court 1 Income 3,00,000.00(Net Salary of the appellant) +83,022.50 (Net Salary of wife) = 3,83,022.50 2,93,349.00(Net Salary of the appellant)+99,074.00 (Net Salary of wife)+19,500.00(GP) +1,102.00(Int.)= 4,13,025.00 3,10,519.00(Net Salary of the appellant)+19,500.0 0(GP)= 3,30,019.00 2 Expendi ture 2,50,00000(F&C) +11,236.00(R.C.) +7,000.00(E.C.) +400.00(W.T.) +769.00(Reg.Fee) =2,69,405.00 1,66,225.00(F&C) +304.00(Hol.Tax) +11,236.00(Sale deed) +538.00(E.C.) +11,20000(R.Tax &Vehicle maintenance) +9,945.00(Edn.Exp.) +19,500.00 (Marriage Exp.) +769.00(Reg.Fee) =2,19,413.00 1,66,225.00(F&C) +2,559.00(Sale deed) +11,236.00(Sale deed) +10,145 (Edn.) +10,200.00(M.cycle exp.) =2,00,365.70 3 Probable Savings 1,13,617.50 1,93,612.00 1,29,653.30 4 Assets 1,04,625.00(House hold) + 7,562.35(Bank Deposit) +33,270.00(Heo Honda) 56,700.00(Land) +4,969.00(Land) +59,160.00(Land) +2,50,000.00(Jeep) =5,96,286.35 1,28,420.00(Land) +2,45,498.00(Buildin g) +39,243.55(Bank Deposit) +33,270(Hero Honda) +57,500.00(House hold) +1,900.00(Gold &Silver) +38000(Cash) =5,09,948.55 5,96,286.35(As per FIR) - 50,000.00(Marriage Gift) =5,46,386.35 See Para-12) 5,45,008.35 – 54,200.00(40% of Net Salary of pre check period) =4,90,808.35 (Plz see para-15) 5 D.A. 4,82,660.85 3,16,336.55 3,61,155.05 6. The claims of the appellant under the aforesaid headings run as under:- (i) Further the income as shown in serial no.1, over and above the amount as found in the judgment, a claim is laid to include a sum of Rs.1,102.00 towards interest and Rs.95,589.00 towards the Net Salary of his wife, as income and then according to him, the same comes to Rs.4,26,710.00. (ii) For the assets under serial no.4, the appellant claims for deduction of Rs.2,80,000.00 from the value of the assets i.e. towards house building loan taken by his wife, a sum of Rs.2,00,000.00 and towards the price of vehicle i.e. Rs.80,000.00 which does not belong to him. Thus for reduction of above it comes to Rs.2,10,808.35 which has been calculated by the trial court at Rs.4,90,808.35. In this way the appellant claims that he is having no asset in his hands disproportionate to his known sources of income. 7. Learned counsel for the appellant submits : A. - that the trial court while going for the analysis of evidence on record, has ignored the material evidence and interpreted the same in a different manner and those, if would have been taken into consideration in their proper perspective, no finding could have been rendered that the prosecution has established its case against the appellant for having assets in his hands which are disproportionate to his known sources of income. In order to be very specific, he contends that the trial court in para-9 of the judgment has unjustifiably gone to reject the contention of the appellant regarding loan of Rs.2 Lakh from the Society for construction of the house merely on the ground of non-examination of Mr. K.M. Rao, the then President of the Society or the wife of the appellant in whose name the house and land stood. It has also been placed by him that observation of the trial court that no documentary evidence in relation to the land is available is wholly an error of record on the face of the documentary evidence which have been marked as Ext.2 and Ext.14 series being very much seized by the Investigating Officer. So according to him, the loan amount of Rs.2 Lakh either should have been added with the income or deducted from the value of the assets calculated to have been in the hands of the appellant. B-His next contention is with reference to the discussion made by the trial court in para-10 of its judgment. It has been stated that the jeep was found in the house of the appellant at the relevant time of search is not at all a fact and that has not been corroborated by any independent evidence. On the other hand, the documents of the jeep having been seized from the owner, the Investigating Officer had rightly not taken that jeep to be an asset in the hand of the appellant and that had thus rightly not shown in the final report and therefore not projected by the prosecution. With such state of affair in the evidence on record, the trial court has fallen in grave error in adding the cost of the jeep towards the value of the assets of the appellant. C.-Now the contention is again with reference to para 6 & 15 of judgment of the trial Court. It is submitted that the trial court in clear and categorical terms has stated to have calculated the income of the appellant and his wife at Rs.3,30,019.00. This being so, it has committed an error by again going to state at a later stage towards the conclusion that the income of the appellant and his wife comes to Rs.4,26,710.00. It is submitted that the trial court in clear and categorical terms has stated to have calculated the income of the appellant and his wife at Rs.3,30,019.00. This being so, it has committed an error by again going to state at a later stage towards the conclusion that the income of the appellant and his wife comes to Rs.4,26,710.00. To sum up, he contends that the evidence on record when duly not considered and appreciated in the backdrop of the settled proposition of law, here is a case where it can be well said that the prosecution has failed to prove its case against the appellant and the findings of the trial court in the ultimate recording the conviction and imposing sentence as above, are unsustainable. 8. Learned Senior Counsel, Vigilance, in response contends that - A-1. the trial court has discussed the evidence in rightly coming to conclude that the income of the appellant and his wife during the check period from his own known sources comes to Rs.4,26,710.00; B-1. the trial court has rightly not accepted the assertion of the appellant as regards the receipt of a sum of Rs.2 lakh by his wife towards house building loan from one Mr. K.M. Rao and that has been discussed in detail in para-9 of the judgment of the trial Court in which no such perversity surfaces; C-1. the trial Court has rightly discarded the plea of the appellant to exclude the value of the jeep since it was recovered during search of the house premises of the appellant. In summing up, he places that the trial court 's calculation on all the heads are absolutely just and proper and even after giving 10% cushion on the income as per the ratio decided in the case of Krishnananda Agnihotri V. State of M.P.; AIR 1977 SC-706, the assets in the hands of the appellant still stand disproportionate to his income from all the known sources. 9. Going to address the first limb of the submission of the learned counsel for the appellant, it is seen that it was argued before the trial court that the wife of appellant had incurred loan of Rs.2 lakh for construction of the building. For the purpose reference had also been made to the evidence of the Investigating Officer P.W.13. 9. Going to address the first limb of the submission of the learned counsel for the appellant, it is seen that it was argued before the trial court that the wife of appellant had incurred loan of Rs.2 lakh for construction of the building. For the purpose reference had also been made to the evidence of the Investigating Officer P.W.13. The contention has been negatived on the ground of non-production of any documentary evidence and non-examination of wife of the appellant or the President of that Society. Let us now have a look at the evidence of P.W.13. He admits to have seized the document regarding the membership of the wife of the appellant under the seizure list Ext.2. These documents were seized from the custody and on production of one Mr. K.M. Rao, M.D. of the Society. The documents then after the seizure had been left in zima of Mr. K.M. Rao. The seizure list Ext.2 reveals that there had also been the seizure of the sale deed, loan application of the wife of the appellant, registers of the Society and the money receipt showing payment of Rs.1 Lakh. So from this, it can be said that the prosecution is quite aware of such loan transaction. Under that circumstances, it was the bounden duty of the prosecution to place before the trial court leading necessary evidence in showing as to whether such a transaction was genuine or an eyewash or bogus one created for the purpose of wriggling out of the case. The Investigating Officer was under the obligation in that event to further probe into the matter and prosecution was thus obliged to place all those evidence in showing that the transaction as above is of no relevance for the purpose for the reasons as stated above and to have not been actually availed of. It being not a case where the defence is for the first time disclosing about the loan transaction during trial that he has to shoulder the burden to establish that factual aspect by leading evidence, oral as well as documentary. It being not a case where the defence is for the first time disclosing about the loan transaction during trial that he has to shoulder the burden to establish that factual aspect by leading evidence, oral as well as documentary. The prosecution in such state of things at least was required to lead some evidence so as to establish that said amount of loan as claimed has rightly been ignored and in that event the defence would have been called upon to prove the fact that said loan transaction was a genuine one which has been actually availed of. It is the settled law that when the prosecution is required to prove its case through clear, cogent and acceptable evidence beyond reasonable doubt, the standard of proving the case projected by the defence through evidence is by preponderance of probabilities. The defence for the purpose of projecting his case so as to be accepted either can lead evidence at the appropriate time during trial or can very well rely upon the evidence of prosecution witnesses and also documentary evidence let in by the prosecution in support of his case. Viewing the evidence on record on the above aspect of loan through the above legal spectrum when the prosecution does not appear to have come up in placing a clear picture by proving the documents seized in this case being given in zima of Mr. K.M. Rao remaining under the obligation to produce as and when so directed by the court, with the defence having no control over the same, the blame has to be shared by the prosecution. The Investigating Officer P.W.13 has not whispered a word that such transaction was a fake one nor even has gone to point out anything so suggestive and even pointing any such indications. Thus, I find no reason as to why it would not be accepted that there was a loan of Rs.2 lakh for the purpose of construction of the building. The trial court has fallen in error in the above state of affair in evidence by going to discard this aspect and thus refusing to take into consideration putting the blame on the defence for non-examination of the appellant's wife or Mr. Rao and not proving the documents in that regard. 10. The trial court has fallen in error in the above state of affair in evidence by going to discard this aspect and thus refusing to take into consideration putting the blame on the defence for non-examination of the appellant's wife or Mr. Rao and not proving the documents in that regard. 10. Next in so far as the second limb of submission of the learned counsel for the appellant is concerned, the trial court as is seen has made the calculation with regard to the income of the appellant and his wife at para-6 of the judgment. The defence had filed the pay particulars of the wife of the appellant. There was a G.P.F. loan amounting to Rs.19,500.00. The total income of the appellant has been assessed at Rs.3,30,019.00. The wife of the appellant was working as the Librarian at K.B. College, Baranga. The defence has filed her pay particulars. The check period is from 1.1.92 to 21.7.98 as deposed by P.W.13. Ext. C is the pay particulars of the appellant's wife, which reflects the salary so received to be Rs.95,589.00. Thus, finally the trial court has calculated the total salary income with the bank interest of sum of Rs.1102.00 at Rs.4,26,710.00. Rightly it has been further stated therein that this net income is to be taken into consideration for the purpose of calculation of income, instead of considering the gross income inasmuch as the entire family expenses and the probable savings are based on the net income. But when para-15 of the judgment of the trial court is read, while concluding, it is stated that - "I have already calculated the income of the accused and his wife at Rs.3,30,019.00" This clearly contradicts as to what has already been calculated at para-6 of the judgment as aforesaid. This is the catch point where the appellant now harps very much in urging that the trial court has committed such a mistake at the conclusion totally different from and running contrary to its own finding. The submission of the learned counsel for the appellant on this score is thus found to be having force. 11. Coming to the last limb of submission of the learned counsel for the appellant relating to the attack upon the judgment of the trial court for inclusion of Rs.80,000.00 towards the price of the jeep as the value of the asset. 11. Coming to the last limb of submission of the learned counsel for the appellant relating to the attack upon the judgment of the trial court for inclusion of Rs.80,000.00 towards the price of the jeep as the value of the asset. It may be stated that in the charge sheet, it was not so included. Seizure of a particular vehicle from the house premises of the appellant in a case of this nature always cannot lead to conclude that it is owned by the appellant. Accepting for a moment that the jeep was seized from the house premises of the appellant, the registered owner of said jeep is some one else. The original documents relating to the jeep most importantly were with that particular owner and have never been seized from the house of the appellant or from his custody. There also remains no evidence that the appellant was in fact using said jeep continuously for a quite long period even to give rise to a strong inference that the appellant is the real owner for all practical purposes and the person in whose name the vehicle stands is merely a name lender and the investigation has also not been directed to collect and place any such material that the same had been purchased with the funds being provided by the appellant and not by that owner. In view of all these, the prosecution having not projected that as the asset in the hands of the appellant, the Trial Court thus, is not right in including this price of said jeep to the value of the assets. Thus, I find no reason to repel the submission of the learned counsel for the appellant on this score and that stands accepted for the reasons as aforesaid. In view of aforesaid discussion and reasons, this Court finds that the ultimate finding of the trial court that the appellant was having the assets disproportionate to his income from all known sources, is not sustainable and as such, is liable to be set aside, which is hereby done. 12. In the result, the appeal is allowed. The judgment of conviction and the order of sentence impugned in this appeal are hereby set aside.