Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 974 (MP)

Dhaniram Lakhera v. State of M. P.

2016-10-27

R.S.JHA, V.K.SHUKLA

body2016
JUDGMENT : V.K. SHUKLA, J. 1. This appeal has been filed by the appellant being aggrieved by the Judgment dated 24-7-2008, passed by the Special Judge (appointed under the Prevention of Corruption Act)/First Additional Sessions Judge, Jabalpur, in Special Criminal Case No. 07/1996, whereby the Court below has found the appellant to be guilty of offences punishable under section 13(1)(e) read with 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as the “Act”). The appellant has consequently been sentenced to R.I. for a term of two years with a fine of Rs. 25,000/- and in default of payment of fine, an additional imprisonment for a term of six months. 2. The prosecution case against the appellant in brief is that the appellant at the relevant time was working as Sub Engineer in the Irrigation Department. A search was conducted in the appellant's residence on 26-3-1992. The criminal law was set at motion and after investigation a charge-sheet was filed against the appellant before the Court below under the provisions of the Act, according to which during the check period between 1976 to 26-3-1992 the appellant's income was stated to be Rs. 23,07,545/- and his expenditure was found to be Rs. 47,54,471/- and, therefore, he was found to have acquired disproportionate assets of Rs. 24,46,926/-. The prosecution examined 22 witnesses while in defence the appellant examined nine witnesses. 3. During the trial, the trial Court found that necessary tabulation chart, Form-H, which is required to be filed by the prosecution along with the charge-sheet had not been filed by them along with the charge-sheet and this chart was ultimately produced by the investigating officer, Naresh Singh Saiyam (PW-18) before the Court at the time of his examination and was marked as Ex.D-71. The Court below on examining the aforesaid tabulation chart in paragraph 20 of its judgment held that the income of the appellant during the check period was Rs. 17,29,980/- and his expenditure during the check period was Rs. 37,47,472/- and, therefore, he was in possession of disproportionate assets worth Rs. 20,17,492/-. 4. After analyzing the evidence on record and the statement of the investigating officer and after deleting the income of the company concerned, the trial Court ultimately recorded a finding in paragraph 52 of its judgment to the effect that the income of the appellant during the check period was Rs. 20,17,492/-. 4. After analyzing the evidence on record and the statement of the investigating officer and after deleting the income of the company concerned, the trial Court ultimately recorded a finding in paragraph 52 of its judgment to the effect that the income of the appellant during the check period was Rs. 6,24,452/- and his expenditure during the check period was Rs. 8,73,547/- and, therefore, he was in possession of disproportionate assets worth Rs. 2,49,095/-. The aforesaid aspect is apparent from a perusal of paragraphs 52, 99 and 100 of the judgment of Court below. 5. The trial Court on recording a finding to the aforesaid effect has held that the appellant guilty of offences punishable under the provisions of the Act and sentenced him to R.I. for a term of two years with a fine of Rs. 25,000/- as stated in the preceding paragraph of this judgment. 6. The learned counsel appearing for the appellant, Ku. Pallavi Khare submits that the appellant has been found to be in possession of disproportionate assets amounting to Rs. 2,49,095/-. She submits that the Court below while recording the aforesaid finding has totally ignored the fact that during the check period the appellant had sold two houses situated on Plot Nos. 61 and 61-A, of Katanga Colony, Jabalpur to Rajesh Kumar Awasthi (PW-5) and his wife Mrs. Shashi Kiran Awasthi (PW-13) and from the sale thereof had received a sum of Rs. 3,50,000/-. It is stated that the Court below has treated the income of the appellant from the sale of the houses during the check period to be only Rs. 50,000/- instead of Rs. 3,50,000/- and in case the aforesaid income of Rs. 3,00,000/- is added to the income of the appellant during the check period, the finding of the Court below regarding possession of disproportionate assets would become erroneous. She submits that she, therefore, confines her argument only to this issue regarding non-consideration of the income of Rs. 3,00,000/- from the sale of house property during the check period. 7. 3,00,000/- is added to the income of the appellant during the check period, the finding of the Court below regarding possession of disproportionate assets would become erroneous. She submits that she, therefore, confines her argument only to this issue regarding non-consideration of the income of Rs. 3,00,000/- from the sale of house property during the check period. 7. The learned counsel for the appellant submits that a perusal of the document, Ex.P-29 which is the agreement to sell the houses executed by the appellant and his wife on 20-8-1990, the document Ex.D-124 which is the ultimate sale deed executed by the appellant in respect of the houses, dated 11-1-2001, the tabulation chart, Ex.D-71 (in fact Form-'H') produced by the investigating officer, Naresh Singh Saiyam (PW-18), makes it abundantly clear that the amount of Rs. 3,50,000/- as consideration of the sale of two houses was received by the appellant during the check period soon after the execution of the agreement itself and, therefore, the finding recorded by the Court below to the effect that only Rs. 50,000/- was received during the check period and the remaining was received today, is in ignorance of the aforesaid documents, Ex.P-29 and Ex.D-71 submitted by the investigating officer and is therefore perverse and deserves to be set aside. 8. The learned counsel for the appellant has taken us through the note appended at the bottom of Ex.P-29, the agreement to sale which clearly envisages the fact of receipt of the entire remaining amount of consideration by the appellant. It is submitted that this note appended to the agreement has been totally ignored by the Court below resulting in recording an erroneous finding of fact. It is submitted that a perusal of the document, Ex.P-29 makes it clear that the entire amount of consideration was received by the appellant and that the investigating officer while preparing the tabulation chart, Ex.D-71, has duly taken this aspect into consideration and in the said chart at item No. 5 has specifically mentioned that the appellant has derived income of Rs. 3,50,000/- from the sale of two houses in Katanga Colony, Jabalpur. The learned counsel has drawn the attention of this Court to the statement of the investigating officer Naresh Singh Saiyam (PW-18) made in paragraph 42 of his statement wherein he has clearly stated that the appellant received the entire consideration of Rs. 3,50,000/- from the sale of two houses in Katanga Colony, Jabalpur. The learned counsel has drawn the attention of this Court to the statement of the investigating officer Naresh Singh Saiyam (PW-18) made in paragraph 42 of his statement wherein he has clearly stated that the appellant received the entire consideration of Rs. 3,50,000/- from the sale of the houses at the time of execution of the agreement itself. The learned counsel submits that this fact is also clearly established from a perusal of the recital made in the sale deed, Ex.D-124 wherein it has been clearly stated that the entire amount of consideration for the sale of the two houses, in question, was received by the appellant at the time of execution of the agreement and that subsequently the sale deed was executed by the parties on 11-1-2001. 9. The learned counsel for the appellant submits that the Court below by ignoring the aforesaid facts has recorded a finding against the appellant in this regard solely on the basis of the fact that in the statement of the appellant made before the Court it has wrongly been recorded on account of a typographical error that the appellant received the entire sum towards consideration of the sale of two houses at the time of execution of the sale deed and not at the time of execution of the agreement. It is submitted that the aforesaid statement recorded in the deposition of the appellant is clearly a typographical mistake which becomes apparent when the same is read along with the documents Ex.P-29, Ex.D-71 and Ex.D-124 as well as the statement of the investigating officer who has emphatically and clearly stated that the appellant has in fact received the entire consideration of Rs. 3,50,000/- at the execution of the agreement. 10. The learned counsel for the appellant, on the basis of the aforesaid submissions submits that the finding recorded by the Court below to the effect that the appellant had received a sum of Rs. 50,000/- only from the sale of the two houses in Katanga Colony, Jabalpur is erroneous. It is submitted that if the additional sum of Rs. 3,00,000/- is added to the income of the appellant, it becomes clear that his income during the check period was in fact Rs. 9,24,452/- which is more than the expenditure of the appellant during the check period of Rs. It is submitted that if the additional sum of Rs. 3,00,000/- is added to the income of the appellant, it becomes clear that his income during the check period was in fact Rs. 9,24,452/- which is more than the expenditure of the appellant during the check period of Rs. 8,73,547/- and, therefore, he was not in possession of assets disproportionate to his income. The learned counsel submits that in the light of the aforesaid, the impugned judgment be set aside and the appellant be acquitted of the offences of which he has been found guilty. 11. The learned counsel appearing for the respondent, per contra, submits that the Court below has discussed this issue extensively in paragraph 44 to paragraph 47 of its judgment wherein the Court, after taking into consideration the statement of Rajesh Kumar Awasthi (PW-5), his wife, Smt. Shashi Kiran Awasthi (PW-13) as well as the statement of the accused/appellant (DW-9) and the documents, Ex.P-29 and Ex.D-124 has categorically and specifically recorded a finding to the effect that the appellant during the check period received only a sum of Rs. 50,000/- at the time of execution of the agreements to sell and that it was subsequently at the time of execution of the sale deed on 11-1-2001 that the appellant received the remaining amount of consideration. It is submitted that in view of the statement of Rajesh Kumar Awasthi (PW-5), his wife, Smt. Shashi Kiran Awasthi (PW-13) and the statement of the accused/appellant himself (DW-9) no fault can be found with the finding recorded by the Court below. 12. We have heard the learned counsel for the parties at length and perused the record including the impugned judgment of the Court below. 13. As the arguments in the appeal has been confined by the learned counsel assailing to the finding recorded by the Court below in respect of the income derived by the appellant regarding sale of the two houses situated in Katanga Colony, Jabalpur during the check period, we think it appropriate to confine the issues involved in the appeal to the aforesaid aspect alone. 14. 14. From a perusal of the record as well as the judgment of the Court below it is apparent and is in fact not disputed that after the search and investigation conducted by the respondent/authorities they had filed a charge-sheet before the Court below but had not filed the tabulation sheet prepared in accordance with the statutory Form-H along with the charge-sheet and that, admittedly, the said tabulation sheet was in fact produced in the Court by the investigating officer Naresh Singh Saiyam (PW-18) and has been brought on record as Ex.D-71. From a perusal of this document it is clear that at Item No. 5 of the tabulation sheet the investigating officer has clearly recorded that the income of the appellant and his wife from the sale of the two houses during the check period was Rs. 3,50,000/- which fact has been recorded on the basis of the two agreements which have been conjointly marked as Ex.P-29. From a perusal of the judgment it is also apparent that the document Ex.P-29 has been filed by the prosecution comprising of four pages which in fact includes the two agreements and not one, both comprising of two pages each. The first is the agreement executed by the appellant Dhaniram Lakhera in respect of his house in favour of Rajesh Kumar Awasthi (PW-5) wherein he has agreed to sell his house for a consideration of Rs. 1,75,000/- whereas the third and fourth page of this document, Ex.P-29 is the agreement executed by the appellant's wife, Smt. Meena Devi Lakhera (DW-4) in favour of Smt. Shashi Kiran Awasthi wife of Rajesh Kumar Awasthi, (PW-13) wherein she has agreed to sell her house for a consideration of Rs. 1,75,000/-. According to the order sheets and the mention made by the trial Court in the judgment this document, Ex.P-29 comprising of four pages which includes both the agreements, has been admitted by the appellant on 30-7-2002. Apparently, though the prosecution should have enlisted the agreement in respect of the house executed by the appellant's wife Smt. Meena Devi Lakhera (DW-4) separately, however, they chose not to do so and have conjointly filed Ex.P-29 as a four pages document which has been admitted by the appellant. 15. A further perusal of this document, Ex.P-29, makes it clear that at the bottom of the said document there is an endorsement showing receipt of a sum of Rs. 15. A further perusal of this document, Ex.P-29, makes it clear that at the bottom of the said document there is an endorsement showing receipt of a sum of Rs. 1,50,000/- which was the remaining part of the consideration by the appellant on 21-9-1990. Similar endorsement finds place at the bottom of the agreement executed by the appellant's wife wherein a receipt of a sum of Rs. 1,50,000/- which is the remaining amount of consideration of the sale of the house on 20-9-1990. 16. From a perusal of the judgment of the Court below and the documents, Ex.D-71 and Ex.P-29 it is apparent that this note appended and added at the end of the two agreements showing receipt of the entire remaining sum of the consideration for sale of the houses has not been taken note of by the Court below while considering these documents and recording a finding against the appellant. At the same time it is also apparent that the appellant or his witnesses did not also make any mention about the fact of this note showing receipt of the entire amount of consideration either in the deposition or during the arguments before the Court below, nor did the prosecution point out the aforesaid note to the Court below while the matter was being heard and decided and, therefore, it is apparent that these notes showing receipt of the entire remaining amounts of consideration have escaped consideration of the Court below. 17. When we conjointly read the statement of the investigating officer Naresh Singh Saiyam (PW-18) made in paragraph 42 wherein he has clearly stated that the appellant had received the entire amount of consideration for sale of the houses, Rs. 3,50,000/- and along with this statement we take into consideration item No. 5 mentioned in the tabulation chart, Ex.D-71 wherein this aspect has specifically been mentioned by the investigating officer along with the receipt shown at the bottom of Ex.P-29, it becomes clear that the prosecution itself while filing the case against the appellant was of the opinion that the appellant had received the entire amount of consideration of Rs. 3,50,000/- during the check period, which was the consideration from the sale of the two houses and in fact, according to the investigating officer and the tabulation chart no allegation in this regard was made against the appellant. 18. 3,50,000/- during the check period, which was the consideration from the sale of the two houses and in fact, according to the investigating officer and the tabulation chart no allegation in this regard was made against the appellant. 18. A perusal of the document Ex.D-124 which is the sale deed executed on 11-1-2001 in respect of the two houses, it is further apparent that the appellant while executing the sale deed has clearly specified and stated that the entire amount of consideration had already been received by the appellant at the time of execution of the agreement. From a conjoint reading of the statement of the investigating officer, Naresh Singh Saiyam (PW-18), the tabulation chart Ex.D-71, the agreement Ex.P-29 and the endorsement showing receipt of the remaining amount of sale consideration as well as the stipulation made in the sale deed, Ex.D-124 it becomes apparent that the appellant had in fact received the entire amount of consideration during the check period and in fact the statement of the appellant (DW-9) which has been taken into consideration by the Court below appears to be a typing mistake as he has in fact specifically admitted Ex.P-29 which contains a specific stipulation regarding receipt of the amount of consideration. 19. In the light of the apparent conflict between the specific written endorsement on Ex.P-29 and the statement of the accused/appellant, we are of the considered opinion that contention of the learned counsel for the appellant that a typographical error has occurred in the statement of the accused/appellant (DW-9) deserves to be and has to be accepted. We are also of the considered opinion that the finding recorded by the Court below in paragraphs 44 to 47 based on the statement of Rajesh Kumar Awasthi (PW-5), his wife Smt. Shashi Kiran Awasthi (PW-13), the documents Ex.P-29 and Ex.D-124 is apparently erroneous and perverse. We are also of the considered opinion that the finding recorded by the Court below in paragraphs 44 to 47 based on the statement of Rajesh Kumar Awasthi (PW-5), his wife Smt. Shashi Kiran Awasthi (PW-13), the documents Ex.P-29 and Ex.D-124 is apparently erroneous and perverse. We are constrained to say so as the document Ex.P-29 which are the agreement in respect of the sale of the two houses were filed by the prosecution themselves and are the documents that have been admitted by the appellant which apparently contain an endorsement showing receipt of the entire amount of consideration and though these documents had been filed by the prosecution itself, Rajesh Kumar Awasthi (PW-5) or his wife Smt. Shashi Kiran Awasthi (PW-13) who are the alleged persons in whose favour the agreements had been executed were not confronted with the said endorsement in the agreements when their statements were recorded. Apparently, the appellant and his wife Smt. Meena Devi Lakhera, DW-9 and DW-4, respectively, were also not confronted with the said documents by the prosecution. The Court below has overlooked this aspect while considering the statement of Rajesh Kumar Awasthi (PW-5) or his wife Smt. Shashi Kiran Awasthi (PW-13) as well as the statement of the accused/appellant, Dhaniram (DW-9). Had these witnesses been confronted with the said note the picture would become clear. 20. Apparently, this duty which was cast upon the prosecution and this burden which lay upon them for proving their case beyond reasonable doubt was not discharged by them. It is also apparent from a perusal of the aforesaid paragraphs that the trial Court has itself failed to take into consideration the aforesaid notes at the bottom of the agreements showing receipt of the remaining amount of consideration and therefore, the finding recorded by the Court below is in ignorance of the aforesaid notes. It is also clear that this aspect had in fact been taken into consideration by the investigating officer, Naresh Singh Saiyam (PW-18) and, therefore, he has clearly mentioned in the tabulation chart, Ex.D-71 that the appellant had received a sum of Rs. 3,50,000/- pursuant to the agreement to sale executed by them in respect of the houses in question during the check period and he has in fact specifically clarified this aspect in paragraph 42 of his deposition. 21. 3,50,000/- pursuant to the agreement to sale executed by them in respect of the houses in question during the check period and he has in fact specifically clarified this aspect in paragraph 42 of his deposition. 21. Apparently all these aspects have also escaped the attention of the Court below and, therefore, the finding recorded by the Court below in this regard is perverse. 22. The Supreme Court in the cases of C.S.D. Swami vs. State, AIR 1960 SC 7 , Sajjan Singh vs. State of Punjab, (1964) 4 SCR 631 and State of Maharashtra vs. Wasudeo Ramchandra Kaidalwar, (1981) 3 SCC 199 has held that in cases relating to Prevention of Corruption Act the prosecution is required to prove beyond reasonable doubt the nature and extent of pecuniary resources of the property which is found in possession of the accused, what were the known sources of income of the accused and objectively prove that the sources of income or property found in possession of the accused are disproportionate to his known sources of income. Once these basic ingredients of the offence under the Prevention of Corruption Act are established by the prosecution, the burden thereafter shifts on the accused. Apparently, the prosecution in the present case has failed to establish the basic ingredients for constituting an offence as far as the income from the sale of the houses of the appellant is concerned and, therefore, we are unable to sustain the finding recorded by the Court below in this regard. 23. At this stage, it is necessary to clarify that the aforesaid proposition of law and finding recorded by this Court has been arrived at looking to the peculiar facts and circumstances of the present case. It needs no emphasis to state that had the prosecution and the Court below taken note of the note appended at the bottom of Ex.P-29 and had the prosecution confronted the signatories of the said document, Rajesh Kumar Awasthi (PW-5) and Smt. Shashi Kiran Awasthi (PW-13) with the same and clarified the aforesaid aspect, this Court might not have been persuaded to take a different view from that which has been taken by the trial Court in spite of the statement of the investigating officer, Naresh Singh Saiyam (PW-18) and the document, Ex.D-71. To put it differently, we have set aside the finding recorded by the trial Court in respect of the issue raised in the present appeal only on account of the perversity and non-application of mind by the trial Court in respect of the oral and documentary evidence on record and not on any other ground. 24. In the light of the aforesaid discussions we are of the considered opinion that the appellant had in fact received the entire sale consideration of Rs. 3,50,000/- during the check period and the finding to the contrary recorded by the trial Court in paragraphs 44 to 47 of the impugned judgment is apparently perverse and erroneous and is therefore quashed. We are of the considered opinion that when this amount of Rs. 3,00,000/- which is the remaining amount of consideration received by the appellant from sale of the two houses is added to the income of the appellant during the check period, it increases from Rs. 6,24,452/- to Rs. 9,24,452/-. It is, therefore, held that the income of the appellant during the check period was Rs. 9,24,452/- and his expenditure, as held by the Court below, during the check period was Rs. 8,73,547/- and, therefore, we are of the considered opinion that during the check period the petitioner was not in possession of the assets disproportionate to his income. 25. In the circumstances, the appeal filed by the accused/appellant is allowed. The impugned judgment dated 24-7-2006 passed by the Court below is set aside and the appellant is acquitted of the offences punishable under sections 13(1)(e) read with 13(2) of the Act. The appellant is on bail. His bail bonds and personal bonds are discharged.