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2017 DIGILAW 575 (GAU)

Phani Ch. Mahanta v. State of Assam

2017-05-12

AJIT BORTHAKUR

body2017
JUDGMENT & ORDER : Ajit Borthakur, J. Heard Mr. B.K. Mahajan, learned Senior Counsel, for the accused appellant. Also heard Ms. S. Jahan, learned Addl. Public Prosecutor, Assam. 2. This appeal under section 374(2) of the Code of Criminal Procedure, 1973, has been preferred against the judgment & order, dated 15.10.2012 passed by the learned Special Judge, Assam, Guwahati, in Special Case No. 04 of 2010 under Sections 13(1)(e)/13(2) of the Prevention of Corruption Act, 1988, whereby the accused appellant was convicted and sentenced to undergo rigorous imprisonment for 3 (three) years 6(six) months with a fine of Rs. 1,00,000/- in default of payment of fine, to undergo rigorous imprisonment for 1 (one) year. Prosecution case, investigation, trial & conviction: 3. The prosecution case, in brief, may be stated thus: On 14.03.2002, Sarbananda Gohai, Inspector of Police lodged an ejahar with the Officer-in-Charge of Vigilance & Anti-Corruption Police Station (ACB PS) stating that in course of inquiry of V&AC R.E. No. 37(97), it was found that Kameswar Saikia, the then Office Superintendent of the Office of the Director of Land Records was involved in fraudulent drawal of Government money by submitting false bills and UD Assistant Phani Ch.Mahanta was involved in corrupt practices in the selection list of Lat Mandols and thereby acquired disproportionate assets to his known sources of income. On the basis of the said ejahar, ACB P.S. Case No. 02/2002 was registered and the case was endorsed to Inspector of Police Nikilesh Dutta for investigation. In course of investigation of the case, incriminate documents were seized from the possession of the accused and concerned offices and statement of witnesses was recorded. On completion of the investigation, charge-sheet was filed against the accused appellant under Sections 13(1)(e)/13(2) of the PC Act. On appearance before the Court, the accused appellant in reply to the above charges, pleaded not guilty and claimed to be tried. In order to prove the case, the prosecution has examined altogether 12 witnesses as PWs whereas the defence has examined 2 persons including the accused appellant himself. The statement of the accused appellant was also recorded under section 313 of the Code of Criminal Procedure, 1973. In order to prove the case, the prosecution has examined altogether 12 witnesses as PWs whereas the defence has examined 2 persons including the accused appellant himself. The statement of the accused appellant was also recorded under section 313 of the Code of Criminal Procedure, 1973. After completion of trial and hearing the learned counsel of both sides, the learned trial Court held the accused appellant, herein, guilty of the charges and convicted and sentenced him, under Sections 13(1)(e)/13(2) of the PC Act 1988, as stated above. Grounds of Appeal The accused-appellant has assailed the above impugned judgment and order of conviction, inter alia, on the grounds- (a) that the learned trial Court relied upon the evidence of the prosecution witnesses, particularly the evidence of the investigating officer, the enquiry officer to be gospel truth; (b) that the learned trial Court did not consider the evidence of the defence witnesses and thereby did not accept income of his wife accrued from business, despite being Trade License, Sale Deed of Land, Lease Agreement, Fair Price Shop License and Income Tax returns were exhibited and such non-consideration has resulted in the failure of justice; (c) that the calculation of the learned trial Court in regard to the value of the disproportionate income is utterly erroneous. 4. Evidence of Prosecution Witnesses:- Let us look at the evidence on record. PW-1 Kajal Sharma, Development Officer, LIC, has stated that in May, 2009, he was holding the post of Manager, Chief Life Insurance Adviser, LICI, Guwahati Branch. The Policy No. 482009494 was issued by their Branch and the sum assured was Rs. 50,000/- Hly, premium Rs. 1589/- stood in the name of Shymal Kr. Mahanta, C/o Phani Mahanta, Anand Nagar (Lalmati), Guwahati-21 (M.Ext.1). The Policy No. 48133136 sum assured was Rs. 1,00,000/- Qly., premium Rs. 1809/- stood in the name of Bijoy Laksmi Mahanta, C/o Phani Mahanta, Anand Nagar (Lalmati), Guwahati-21 (M.Ext.2). The Policy No. 35337412 sum assured Rs. 5000/- Hly, premium Rs. 102.50/- stood in the name of Phani Mahanta, O/o the Director of Land Records, Bamunimaidam, Guwahati-21 (M.Ext3).The Policy No. 3587144 sum assured Rs. 3500/- Hly., premium Rs. 95.70/- stood in the name of Phani Mahanta, O/o the Director of Land Records, Bamunimaidam, Guwahati-21 (M. Ext.4). PW-2 Phanindra Kr. The Policy No. 35337412 sum assured Rs. 5000/- Hly, premium Rs. 102.50/- stood in the name of Phani Mahanta, O/o the Director of Land Records, Bamunimaidam, Guwahati-21 (M.Ext3).The Policy No. 3587144 sum assured Rs. 3500/- Hly., premium Rs. 95.70/- stood in the name of Phani Mahanta, O/o the Director of Land Records, Bamunimaidam, Guwahati-21 (M. Ext.4). PW-2 Phanindra Kr. Deka and PW-3 Jawaharlal Das are the employees of the Office of the Director of Land Records and they had stated nothing about the prosecution case. PW-4 Ramesh Ch. Kalita, Executive Engineer, PWD Magazine Division, has stated that the accused appellant has 2 buildings, one is Assam Type and other is RCC building having three floors. The plinth area of Assam type building was 78.29 sq.m. and as per the scheduled rate of their Department, the value of the Building was Rs. 27953/-. The area of the RCC building-ground floor 157.6 sq.m, 2nd Floor 83.12 & 3rd Floor 83.12 sqm. The total value of the RCC building was Rs. 8,82,755/-, as per scheduled rate of PWD. Ground floor was constructed in 1995 and 2nd and 3rd floor were constructed in 1997 and Assam Type Building was constructed in 1975. The rate was calculated as per prevailing rate of the year. The measurement of these two buildings were taken in presence of Inspector (vig.), owner of the building and AE Dilip Bora. M.Ext.7 is the evaluation report submitted by him which contains 5 pages. PW-5 Jitendra Chakraborty has stated that on 06.10.2009, he was serving as Inspector of Police, Vigilance. On that day, at about 11AM, Inspector B.N. Goswami seized 2 (two) documents produced by accused-appellant, Phani Mahanta in their office. These are: (1) One certified copy of land sale deed vide No. 183(ka) 1988 in between Amal Ch. Lahkar, s/o. Umesh Ch. Lahkar of Noonmati Sector-1, PS-Noonmati and Phani Mahanta, both of village Ananda Nagar and (2) One certified copy of land sale deed No. 182(ka) 1988, in between Sri Durgeswar Deka, Noonmati Sector-1, PS-Noonmati, and Phani Mahanta, both of village Ananda Nagar. M.Exts.9 and 7 are those two documents seized by the Police Inspector. Ext.2 is the seizure list. PW-6 Bidhan Sinha has stated that on 18.07.2009, he went to the residence of accused Phani Mahanta and on that day, police seized some documents from his residence vide Ext.2. M.Exts.9 and 7 are those two documents seized by the Police Inspector. Ext.2 is the seizure list. PW-6 Bidhan Sinha has stated that on 18.07.2009, he went to the residence of accused Phani Mahanta and on that day, police seized some documents from his residence vide Ext.2. The seized documents are:- (1) One UBI SB A/C No. 8145 in the name of Phani Mahanta (Duplicate) (M.Ext. 10); (2) One UBI SB A/C No. 8145 in the name of Phani Mahanta, last balance Rs. 759.18, dated 03.07.2009 (M. Ext. 11); (3) One SB A/C No. 4390 of UBI, in the name of Mrs. Bijoy Lakhmi Mahanta of Ananda Nagar, last balance Rs. 3132.94, dated 18.09.2008 (M.Ext. 12); (4) One SB A/C No. 8145 in the name of Phani Ch. Mahanta of DLR Office (Duplicate), last balance Rs. 1976.18, dated 01.08.2008 (M.Ext. 13); (5) One original Money Receipt of Rs. 40,000/- by Dipali Mazumdar, W/o Dhruba Mazumdar, from Bijoy Laksmi Mahanta, w/o Phani Mahanta of DLR Office, Bamunimaidam (M.Ext.3); (7) One Pension Book HP-59/76988 of Phani Mahanta (M.Ext. 15); (8) One Sale Deed of Maruti Car N0.ASO6 A 3837 executed in between Salma Afruza Ahmed and Bijoy Laxmi Mahanta (purchaser) dated 28.12.1997 (M.Ext. 16); (9) One Power of Attorney vide Deed No. 3981, dated 11.4.05 (M.Ext. 17); (10) One Agreement Letter in between Phani Ch. Mahanta and Binod Boro, dated 16.11.2000 (M.Ext. 18); (11) One Agreement Letter (baina patta) in between Phani Mahanta and Nabadeep Boro, dated 16.11.2000 (M. Ext. 19); (12) One Original LIC Policy No. 482009494, in the name of Shyamal Kr. Mahanta, C/o Phani Mahanta of Ananda Nagar (M.Ext. 1); (13) One Original LIC Policy No. 35871444, in the name of Phani Mahanta of DLR Office (M.Ext.4); (14) One Original LIC Policy No. 48133136, in the name of Bijoy Laxmi Mahanta, W/o Phani Ch.Mahanta of Ananda Nagar (M.Ext.2); (15) One imitated necklace valued at Rs. 800/-; (16) One pair of ear ring imitated gold valued at Rs. 80/-; (17) One pair of imitated bangles approx, valued at Rs. 40/-; (18) Three pieces of imitated suries approx. valued at Rs. 60/- and (19) One imitated necklace, ear ring two pieces, one imitated necklace valued at Rs. 1000/-. From Sl. No. 15 to 19 had been given in zimma. 80/-; (17) One pair of imitated bangles approx, valued at Rs. 40/-; (18) Three pieces of imitated suries approx. valued at Rs. 60/- and (19) One imitated necklace, ear ring two pieces, one imitated necklace valued at Rs. 1000/-. From Sl. No. 15 to 19 had been given in zimma. The said PW-6 had stated that on that day, police made an inventory vide Ext.3 with regard to 45 items of household articles found at the residence of accused appellant. Exts. 3(1), (2), (3), (4) and (5) are his signatures as witness. These are -(1) one ceiling fan (orient) with regulator Rs. 250/- (2) one refrigerator (Samsung) Rs. 9300/- (3) one pair single sofa with cushion (4) one tea table Rs. 1000/- (5) one Box bed Rs. 2500/- (6) one ceiling fan Rs. 250/- (7) one TV (Onida 21" colour) Rs. 19000/- (8) one TV stand (steel) Rs. 800/- (9) Frontek Home Theatre Rs. 1350/- (10) one Wall Almirah, PCO machine Rs. 500/- (11) one sofa wooden double chair with cushion Rs. 700/- (12) one steel Almirah (small size) Rs. 1500/- (13) one wooden table Rs. 600/- (14) one wooden chair Rs. 100/- (15) one wooden table Rs. 600/- (16) one wooden chair Rs. 100/- (17) one table fan (Usha) Rs. 250/- (18) one khaitan fan (small) Rs. 350/- (19) one almirah fitted in the wall Rs. 500/- (20) one wooden showcase Rs. 300/- (21) one looking glass Rs. 150/- (22) one steel almirah Rs. 2500/- (23) one sterio with two speakers Rs. 2900/- (24) one computer with table, UPS, CPU, Rs. 24000/- (25) one freeze (Godrej) with stabilizer Rs. 9900/- (26) one steel box (big size) Rs. 450/- (27) one ceiling fan (Usha) Rs. 300/- (28)two Nos. of wooden alna Rs. 300/- (29) one wooden mitchel Rs. 150/- (30) five Nos. of plastic bucket 50 ltrs Rs. 500/-(31) silver utensil, saucepan, steel gamla, steel filter, 1 No. Rs. 1000/- (32) one gas cylinder Rs. 300/- (33) two Nos. of steel filter Rs. 760/- (34) one pressure cooker 8 ltrs. Rs. 2500/- (35) One steel filter Rs. 760/- (36) dining table with six chairs Rs. 2500/- (37) plastic filter Rs. 150/- (38) one acqua guard filter Rs. 2500/- (39) one gas burner Rs. 600/-(42) cooking materials one pressure cooker, one saucepan, steel plates six nos., steel glass six nos., plasticjing three nos., plastic bucket 30 ltrs, spoons, etc., Rs. Rs. 2500/- (35) One steel filter Rs. 760/- (36) dining table with six chairs Rs. 2500/- (37) plastic filter Rs. 150/- (38) one acqua guard filter Rs. 2500/- (39) one gas burner Rs. 600/-(42) cooking materials one pressure cooker, one saucepan, steel plates six nos., steel glass six nos., plasticjing three nos., plastic bucket 30 ltrs, spoons, etc., Rs. 1500/- (43) one Maruti van Reg. No. ASOl 4 6945 (44) One scooter (Bajaj) AMY 6197 (45) one Motorcycle Regd. No. ASOl AE 7699. PW-7 Dilip Bhuyan had stated that on 18.07.2009, police went to the residence of his neighbour i.e. accused appellant and seized 19 Nos. of documents from the residence in his presence vide Ext.2. On that day, police also made an inventory of 45 items of household articles found at the residence of accused Phani Mahanta in his presence vide Ext.3. PW-8 Sarabananda Gohain, Inspector of Police, has stated that on 29.12.2000, the SP, ACB PS entrusted him the inquiry against Kamaleswar Saikia, the then Office Asstt. and Phaoni Ch. Mahanta, UD Asstt., to him. The check period was from 1965 to 1998. After taking up the inquiry, he asked accused to submit statement of assets of liability and as directed, accused to submit statement of assets of liability and as directed, accused Phani Mahanta submitted the same in 10 (ten) pages disclosing his movable and immovable properties. As per his statement, the accused person had a plot of land measuring 31/2 katha at Narikalbasti under Dag No. 42 and Patta No. 71, Mouza Beltola, worth Rs. 5,95,500/- which was purchased in 1997. Movable properties included Ambassador worth Rs. 40,000/-, Scooter worth Rs. 11,000/- and Maruti Van worth Rs. 20,000/-Radio & TV worth Rs. 20,250/-, Refrigerator worth Rs. 8,500/-, two wrist watches worth Rs. 1500/-, one wall clock worth Rs. 350/-, utensils worth Rs. 1000/-, Saving Rs. 800/-and Rs. 75,000/- in UBI, LIC sum assured Rs. 1 lakh, qty instalment Rs. 2411/- and cash in hand Rs. 5000/-, income from salary Rs. 10,80,000/-, House rent Rs. 10,418/-, sale of property Rs. 5,95,000/- total house rent Rs. 55,700/- which included value of Scooter Rs. 12000/-. M.Ext.20 is the assets and liability statement of accused Phani Mahanta and M.Exts.20( 1) to 20( 11) are his signatures. 1 lakh, qty instalment Rs. 2411/- and cash in hand Rs. 5000/-, income from salary Rs. 10,80,000/-, House rent Rs. 10,418/-, sale of property Rs. 5,95,000/- total house rent Rs. 55,700/- which included value of Scooter Rs. 12000/-. M.Ext.20 is the assets and liability statement of accused Phani Mahanta and M.Exts.20( 1) to 20( 11) are his signatures. In course of inquiry, he also obtained the evaluation report of the 3(three) storied RCC buildings and 1 Assam Type Building, which are all located at Ananda Nagar, Guwahati-21. The total value of RCC building was Rs. 8,82,755/- and value of of one Assam Type building was Rs. 27,953/-, Ext.7 is the evaluation report of both buildings. On 29.08.2002, Inspector of Police Nilokesh Dutta seized the evaluation reports vide Ext.-4 from him and Ext. 1 (1) is his signature in the seizure list. After going through the statement of the assets and liability of accused person, and evaluation report, he submitted the inquiry report in 11 pages to the SP vide Ext.5. On the basis of his inquiry report, Government directed him to lodge an ejahar against the accused person and accordingly, on 14.3.02, he lodged the ejahar with the SP, ACB, Assam, Guwahati, vide Ext.6. As per his inquiry report, total expenditure of accused was Rs. 31,82,872/- and his total income was Rs. 1414,76,000/- and disproportionate assets was Rs. 17,06,872/- during the period from 1965 to 1998. PW-9 Pankaj Das, LDA of District Transport Office, Kamrup, has stated that on 15.07.2009, police seized the registration particulars of a Maruti van bearing No. AS-01-G-6280 registered in the name of Phani Mahanta, S/o. T.C. Mahanta, Ananda Nagar, Lalmati. On 22.11.1999, this vehicle was transferred to the name of Mr.G Talukar, on 12.07.2001. This vehicle was transferred to the name of Raju Patgiri. On 08.03.2002, it was again transferred to the name of Kailash Koch. On 30.06.2004, it was transferred to Dipankar Das. On 05.05.2006, it was again transferred to Ganesh Deka. This vehicle was manufactured on 01.09.1998. M.Ext.22 (proved in original) is the relevant entry in the register of vehicles from AS-01 -G-6147 to AS-01-G-6300. PW-10 Smt. Deba Prabha Saikia is the UD Asstt. in the DT Office, Kamrup. According to him, the vehicle No. AS-01 -B-1362 stands in the name of Smt. Dipali Mazumdar and on 07.04.1993, this Ambassador Car was transferred to the name of Bijoy Laxmi Mahanta, W/o Phani Ch. PW-10 Smt. Deba Prabha Saikia is the UD Asstt. in the DT Office, Kamrup. According to him, the vehicle No. AS-01 -B-1362 stands in the name of Smt. Dipali Mazumdar and on 07.04.1993, this Ambassador Car was transferred to the name of Bijoy Laxmi Mahanta, W/o Phani Ch. Mahanta. M.Ext.21 is the relevant entry in the register. Phani Mahanta is the resident of Ananda Nagar, Lalmati, Guwahati. PW-11 Nikilesh Dutta, Inspector of Police, has stated that after taking up the case for investigation, on 29.08.2002, he seized the documents, namely, (1) Evaluation Report in original containing 6 pages, submitted by the Executive Engineer (P W-1) in respect of (1) Evaluation Report in original of accused P. Mahanta (M.Ext.7) (2) DA statement of accused P. Mahanta (M.Ext20). Ext.4 is the seizure list and Ext.4(2) is his signatures. On 13.09.2002, he went to the office of the Director of Land Records and seized 2 Nos. of Cash Books(M.Exts.5 and 6) vide Seizure list Ext. 1 and Ext.3 are his signatures. On 08.01.2002, he seized 10 Nos. of documents from the office of the DLR vide Ext 7 and 7(1) is his signatures. PW-12 Biswa Nath Goswami, Inspector of Police, has stated that in the course of investigation, on 06.10.2009, he seized one certified copy of land Sale Deed vide No. 183(ka), 1988 executed in between Amal Ch. Lahkar and Bijoy Laksmi Mohanta (M.Ext. 8) and another certified copy of land Sale Deed vide No. 182(ka)/1988 in between Durgeswar Deka and Phani Mahanta (M.Ext.9) vide seizure list Ext.2 and Ext.2(3) is his signatures. On 18.07.2009, he went to the house of accused and seized some document vide Seizure list Ext.2 and Ext.2(5) is his signature. These were (1) One UBI SB A/C No. 8145 in the name of P. Mahanta (M.Ext. 10) (2) One UBI SB A/c No. 8415 in the name of P. Mahanta, last balance Rs. 759.18, dated 03.07.2009 (M.Ext. 11), (3) one SB A/C No. 4390 of UBI in the name of Bijoy Lakshmi Mahanta of Ananda Nagar, last balance Rs. 3132.94, dated 18.09.2008 (M.Ext. 12), (4) One SB AC No. 8415 in the name of P. Mahanta, last balance of Rs. 1976.18, dated 01.08.2008 (M.Ext. 13), (5) One original Money Receipt of Rs. 40,000/- by Dipali Mazumdar (M.Ext. 11), (3) one SB A/C No. 4390 of UBI in the name of Bijoy Lakshmi Mahanta of Ananda Nagar, last balance Rs. 3132.94, dated 18.09.2008 (M.Ext. 12), (4) One SB AC No. 8415 in the name of P. Mahanta, last balance of Rs. 1976.18, dated 01.08.2008 (M.Ext. 13), (5) One original Money Receipt of Rs. 40,000/- by Dipali Mazumdar (M.Ext. 14), (6) One Original LIC Policy No. 35337412, in the name of P.Mahanta (M.Ext.3), (7) One Pension Book HP-59 76988 of P. Mahanta (M.Ext. 15), (8) One Sale Deed of Maruti Car N0.AS-O6A 3637, made in between Salma Afruza Ahmed and Bijoy Laksmi Mahanta purchased on 28.12.97 (M.Ext. 16), (9) One power of attorney vide Deed No. 3981, dated 11.04.2005 (M.Ext. 17), (10) One agreement in between P. Mahanta and Nadip Boro, dated 16.11.2000 (M.Ext. 18), (11) One agreement letter between P. Mahanta and Nadip Boro, dated 16.11.2000 (M.Ext. 19), (12) One original LIC Policy No. 482009494 in the name of Shymal Kr. Mahanta (M.Ext. 1) (13) One original LIC Policy No. 35871444 in the name of P. Mahanta of DLR Office (M.Ext.4), (14) One original LIC Policy No. 481331366 in the name of Bijoy Laxmi Mahanta (M.Ext.2). From Sl.No.15 to 19 ornaments were given in the custody of wife of the accused. The check period was from 1965 to 1998. Immovable property of accused was Rs. 10,55,000/-, movable properties were worth Rs. 3,03,900/-, deposit of Rs. 5,51,326/-, family maintenance of Rs. 13,75,551/-. Total expenditure was Rs, 22,14,370/-. Movable assets not disclosed in CBI proforma, but found in his possession during the search was worth Rs. 1,04,300/-and investment not reflected in the CBI proforma was Rs. 124493/-. So the total income of accused comes to Rs. 13,75,551/-.The total expenditure Rs. 22,14,370+ Rs. 1,40,300 + Rs.l2,443-> Rs. 23,67,113/-minus Rs. 13,75,551/-> Rs. 9,91,156/- was the total disproportionate assets of accused. After going through the statement of witnesses and contents of seized documents, he filed charge sheet against the accused Phani Mahanta under section 13(1)(e)/13(2) of the PC Act vide Ext. 10 and 10( 1) is his signatures. 5. Evidence of Defence Witnesses DW-1 Bipul Talukdar has stated that the accused appellant is known to him and his wife late Bijoy Laxmi Mahanta, who was doing business had grocery shop (fair price), cement shop and Mahanta Feed Shop (Poultry Feed). 10 and 10( 1) is his signatures. 5. Evidence of Defence Witnesses DW-1 Bipul Talukdar has stated that the accused appellant is known to him and his wife late Bijoy Laxmi Mahanta, who was doing business had grocery shop (fair price), cement shop and Mahanta Feed Shop (Poultry Feed). In 2009, the DW-1 had prepared her income tax return and submitted to the office of the Joint Commissioner of Income Tax, Range 3. In the statement income from Grocery Shop of Late Bijoy Laxmi Mahanta was stated for the period from 1977 to 1998 for 22 years to the tune of Rs. 5,28,000/-. Her income from cement shop during the period from 1982 to 1987 for 6 years was Rs. 72,000/-. Her income from Mahanta Feed products during the period from 1985 to 1988 for 14 years was Rs. 5,04,000/-. Ext. A is the Income Tax Return of late Bijoy Laxmi Mahanta filed by him in the office of the Joint Commissioner of Income Tax, Range 3. Late Bijoy Laxmi Mahanta showed him Trade License, Fair Price Shop License and vouchers of allotment of Poultry Feed and on the basis of those documents, he prepared the Income Tax Return. The income of the deceased was not taxable. DW-2 Phani Ch. Mahanta has stated that on 31.07.2002, he had retired from service as UDA from the office of the Director, Land Revenue. During his service period, in 1997, he got notice from Vigilance & Anti-Corruption to fill-up CBI Proforma giving particulars of his assets and liabilities during his service period. The Copy of the statement given to the Vigilance & Anti-Corruption was kept by him. On 08.10.1999, he submitted assets and liability statement: (1) copy of letter regarding fair price shop in the name of Smt. Bijoy Laxmi Mahanta (Ext.-A), (2) Copy of SBI Loan Sanction Letter for Rs. 15000/- in the name of Bijoy Laxmi Mahanta (Ext.-B) (3) Copy of letter of Purbanchal Bank Ltd. For sanctioning of an amount of Rs. 1,40,000/- (Ext.-C), (4) Copy of letter of certificate of permanent residence under Director of Industries (Ext.-D), (5) Copy of letter of the allotment of PCO in the name of his son (Ext.-E), (6) License for cement business in the name of Bijoy Laxmi Mahanta (Ext.-F), (7) Copy of letter taken for taking in the name of Bijoy Laxmi Mahanta for Rs. l,90,000/-(Ext.-G) and (8) Copy of the mutation of land (Ext.-H). DW-2 has also stated that some of the supporting documents were not filed at that time. During the Check period 1965 to 1998, his salary income was Rs. 10,80,000/-, sale proceeds of a plot of land measuring 3K, 15L, situated at Narikalbasti, covered by Dag No. 42, Patta No.71 was for Rs. 5,95,000/-in the year 1997 purchased by one Durgeswar Deka, Amal Lahkar and Mohan Ch. Kalita, vide Sale Deed No. 182(Ka) 1998 and 183 (ka)l 998. Income from the factory of M/s Mahanta Feed Products was for Rs. 5,04,000/- vide certificate issued by the Director of Industries, Guwahati, in the name of Bijoy Laxmi Mahanta. The original certificate was not available, because his deceased wife kept it and now he cannot trace out. In the name of this Firm, the Government of Assam had allotted a plot of land measuring 3500 sq.ft. @ Rs. 70/- per month vide Dag No. 381 to Village Bunda, Mauza Beltola Circle, Guwahati, District Kamrup, Assam. Ext-B is the said certified copy of Deed No. 127/90 of Assam Small Industry Corporation in the name of Bijoy Laxmi Mahanta along with photo copy of the certificate of the said factory. Cement business income was Rs. 72,000/- for the period 1982 to 1987. The original certificate of the trade license of cement business was given to the DC office, Kamrup. Those documents were shown to the vigilance Police Personnel during investigation of the case. The Trade License of Cement Business No. was ATAO/WS/GAU/EZ/12/86. There was one PCO in the name of his son Shyamal Kr. Mahanta and his income was Rs. 60,000/- for the period 1994-98. Ext.C is the allotment of STD PCO in the name of his son Shyamal Kr. Mahanta issued by the Commercial Officer of the office of the TDM, Guwahati-7. His wife had one Grocery (Fair Price Shop) and its income was Rs. 5,28,000/- for the period from 1977 to 1998. The License No. GFPS 2/77/PT/81/8210, dated 18.09.1979. Ext.Dl and D2 are Trade License No. 105510, dated 23.11.10 and allotment of Fair Price Shop. He had house building advance of Rs. 45,700/- and Scooter Advance of Rs. 12,000/-. House Building Advance certificate issued by Director, LR, on 20.12.2008(Ext.E) and the loan was issued vide No. SIDC/EA/87/210/695, dated 30.07.1991 for an amount of Rs. 1,90,000/-. Ext.Dl and D2 are Trade License No. 105510, dated 23.11.10 and allotment of Fair Price Shop. He had house building advance of Rs. 45,700/- and Scooter Advance of Rs. 12,000/-. House Building Advance certificate issued by Director, LR, on 20.12.2008(Ext.E) and the loan was issued vide No. SIDC/EA/87/210/695, dated 30.07.1991 for an amount of Rs. 1,90,000/-. Personal loan taken from Dilip Bhuiyan on 18.11.1998 was Rs. 2,00,000/-. The relevant documents were submitted to the I.O. A sum of Rs. 10,0000/- was gifted to his wife by his mother-in-law on 18.09.1992. A sum of Rs. 15000/- was taken as loan from SBI by his wife Bijoy Laxmi Mahanta (Ext.F). Loan amounting to Rs. 1,4.0,000/- was taken from Purbanchal Bank Ltd. Vide No. PURB/AOV/CHND/12(C)/04/8606, dated 24.9.84, in favour of his wife Bijoy Laxmi Mahanta. Car loan was given by financial company GMD vide No. GMD 98-99/GDD/232/001/202 dated 10.12.1998 for Rs. 1,00,000/- (Ext.G). Another sum of Rs. 3,00,000/- was taken as loan from Arambagh Hatcheries Ltd. dated 08.03.1997. A letter vide No. AHL/345/86, dated 18.03.1986, issued by the Director of that Firm addressed to Bijoy Laxmi Mahanta, Ext. H is the said letter. He had not acquired property disproportionate to his known source of income and the accusation made by the I.O. is false. Arguments:- Elaborating the grounds of the instant appeal, Mr. B.K. Mahajan, learned Senior Counsel for the accused-appellant submitted that the investigating officer, while determining the check period from 1965 to 1998 in regard to the sources of income of the accused-appellant, had not taken into consideration of the period of allegations of facts to ascertain a true and comprehensive picture of the known sources and his property acquired himself or through others of income of the accused appellant. Mr. Mahajan, learned Senior Counsel for the appellant further submitted that there is clear contradiction between the finding of the Enquiry Officer and the Investigating Officer in regard to the calculation of the approximate value of the alleged disproportionate property acquired by the accused-appellant during the check period. According to Mr. Mr. Mahajan, learned Senior Counsel for the appellant further submitted that there is clear contradiction between the finding of the Enquiry Officer and the Investigating Officer in regard to the calculation of the approximate value of the alleged disproportionate property acquired by the accused-appellant during the check period. According to Mr. Mahajan the Assam Type house of the accused-appellant was constructed in 1975, but assessment of its value was miscalculated in 1997 on most unscientific manner and that Dilip Bora, Assistant Engineer, who assessed the value of the house is not examined by the prosecution and the income of his deceased wife, who had source of independent income and an income tax assessee, was not at all taken into consideration and therefore, the entire prosecution case failed to be established beyond all reasonable doubt. Controverting the above argument of the appellant's side, Mr. S. Jahan, learned Addl. Public Prosecutor submitted that Dilip Bora, the Assistant Engineer, who assessed the value of the house, although not examined in the case, PW4 Ramen Chandra Kalita, retired Addl. Chief Engineer deposed on his behalf and the evaluation of it was done as per schedule rate of PWD in the relevant year of construction in 1975. Ms. Jahan, learned Addl. Public Prosecutor further submitted that the property of the wife of the accused-appellant was not taken into consideration, while calculating the approximate value of the disproportionate property to the source of income of the accused appellant, known to the prosecution and that the appellant failed to satisfactorily account for the aforesaid acquirement of property. Appreciation of Evidence: 6. In order to sustain an offence under Section 13(1)(e) of the P.C. Act, 1988, the prosecution must prove: (a) that the accused is a public servant; (b) the nature and extent of pecuniary resources or property which were found in his possession; (c) as to what was his known sources of income, i.e. known to the possession of the accused were disproportionate to his known sources of income. Once these ingredients are satisfactorily established, the offence of criminal misconduct is complete, unless the accused is able to account for such resources or property. If the prosecution has proved the required ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts to the accused. 7. Once these ingredients are satisfactorily established, the offence of criminal misconduct is complete, unless the accused is able to account for such resources or property. If the prosecution has proved the required ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts to the accused. 7. In the instant case, there is no dispute that the accused appellant was an employee in the Office of the Director of Land Records, Assam, Guwahati, during the check period from 10.05.1963 to 31.12.1998 and he retired from service as an Upper Division Assistant, on 31.07.2002. Therefore, the accused appellant was a 'public servant' within the meaning of Clause (c) of Section 2 of the RC. Act and his aforesaid check period was taken for the purpose of calculating his income and expenditure as well as his acquirement of immovable and movable properties in estimating his alleged acquiring of disproportionate property to his known sources of income. 8. The First Information Report (FIR), dated 14.03.2001, vide Ext.6, lodged by the Inspector Sarbananda Gohain (PW-8) of Vigilance and Anti-Corruption, Assam, (A.C.B.) before its Superintendent of Police and the Officer-in-Charge, revealed the allegations, inter alia, that in course of inquiry, in connection with V. & A.C. RE No. 38(7)97, that the accused appellant, while he was posted as L.D.A. in the said Directorate and dealing with selection of Lat Mandals, earned a huge amount of money by corrupt means and thereby, acquired disproportionate assets beyond his known sources of income. Based on the aforesaid First Information Report (FIR), ACB Case No. 02/2002 under Sections 409/420/471/120B IPC read with Section 12(2) of the PC. Act, was registered and in course of investigation; the Investigating Officer viz. Inspector Nikilesh Dutta, after taking-up the case on 29.08.2002, seized, inter alia, the building evaluation reports submitted by PW-4 Ramen Chandra Kalita, Executive Engineer, Public Works Department, vide M Ext.7, salary and DA Statements, vide M.Ext.20; by Ext.4, the seizure memo. PW-11 further seized 2 Nos. of cashbooks, vide M.Exts.5 and 6, by seizure memo Ext. 1 and also some other documents from the office of the accused appellant by Ext. 7, the seizure memo etc. Further, PW-12 Inspector Biswanath Goswami, the other Investigating Officer, seized the documents such as M Ext, 8, M.Ext.9, the land sale deeds by Ext.2, the seizure memo. He(PW-12) also seized the accused appellant's Bank Accounts vide Ext. 10, M.Ext.11, M.Ext. 1 and also some other documents from the office of the accused appellant by Ext. 7, the seizure memo etc. Further, PW-12 Inspector Biswanath Goswami, the other Investigating Officer, seized the documents such as M Ext, 8, M.Ext.9, the land sale deeds by Ext.2, the seizure memo. He(PW-12) also seized the accused appellant's Bank Accounts vide Ext. 10, M.Ext.11, M.Ext. 13 and his wife Bijoy Lakshmi Mahanta (since dead), vide M.Ext. 12, the LIC Policy vode M.Ext.3, his pension Book vide M.Ext. 15 and other documents pertaining to vehicle of his said deceased wife etc. PW-12, the Investigating Officer, who, on completion of the investigation, submitted the charge-sheet, vide Ext. I.O, calculated the disproportionate assets of the accused appellant as herein below quoted: "The check period was from 1965 to 1998. Immovable property of accused is Rs. 10,55,000/-, movable properties are worth Rs. 3,03,900/-, deposit of Rs. 5,51,326/-, family maintenance of Rs. 13,75,551/-, Total expenditure Rs. 22,14,370/-. Movable assets not disclosed in CBI proforma but found in his possession during the search is worth Rs. 1,40,300/- and investment not reflected in the CBI proforma worth Rs. 1,24,493/-. So the total income of accused comes to Rs. 13,75,551/-. The total expenditure Rs. 22,14,370 + Rs. 1,40,300 + Rs: 12,443 -> Rs. 23,67,113.00 minus Rs. 13,75,551.00 -> Rs. 9,91,1561 - is the total disproportionate assets of accused," 9. The evidence on record, thus, shows that the income of the deceased wife of the accused appellant was also mingled with while assessing the value of assets, purportedly of the accused appellant, but did not consider the Income-tax returns submitted by his said deceased wife, who was an income tax assessee, vide Ext. A series. What it appears from the evidence is that the Investigating Officer (PW-12) took into accounts, in his simple calculation, the value of the movable and immovable properties, bank and insurance credits vis-a-vis minus the approximate expenditures from his income from salary for coming to the inference that he acquired a total disproportionate assets amounting to Rs. 9,91,156/-. No evidence has been led to establish that the accused appellant incurred the cost of acquiring the movable/immovable properties, vide Ext.4 series, standing in the name of his deceased wife or jointly with him from his known sources of income during the aforesaid check period to calculate his disproportionate Income. 9,91,156/-. No evidence has been led to establish that the accused appellant incurred the cost of acquiring the movable/immovable properties, vide Ext.4 series, standing in the name of his deceased wife or jointly with him from his known sources of income during the aforesaid check period to calculate his disproportionate Income. The investigating agency, as it appears from evidence did not associate any chartered accountant, any revenue official or any other expert in assessing the value of the alleged acquired movable and immovable properties so as to remove doubt of miscalculation in the aforesaid calculation. 10. It is apparent on evidence led by the prosecution and the defence that income of the earning wife in acquiring the alleged properties, movable and immovable, was not taken into consideration while holding the accused appellant, who was a public servant, during the check period, made or spent more money in excess of his known sources of income. A close scrutiny evidence of DW-2, the accused appellant, shows that if his above evidence is given due weight, room still exists for taking the view that howsoever stronger opinion is raised against him, every reasonable possibility of his innocence has not been exhausted. The prosecution has relied on various circumstantial evidence, oral and documentary, but a careful scrutiny of those circumstantial evidence does not certainly lead to the only inference that the accused appellant acted dishonestly abusing his position as a public servant Conclusion:- 11. Situated thus, this Court is of the considered opinion that the prosecution has failed to prove the charges brought against the accused appellant beyond all reasonable doubt. The accused appellant, who is a retired Public servant, appears to have satisfactorily explained the sources of his income for acquiring his property during the check period. 12. Accordingly, the appeal stands allowed. The accused appellant is acquitted of the charges under Section 13(1)(e)/31 (2) of the PC Act and set at liberty setting aside the impugned judgment and order, dated 15.10.2012, passed by the learned Special Judge, Assam, Guwahati in Special Case No. 04/2010. Send back the LCRs along with a copy of this judgment and order.