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2018 DIGILAW 376 (GAU)

Sangamitra Bharali v. State of Assam

2018-02-28

HITESH KUMAR SARMA

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JUDGMENT : Hitesh Kumar Sarma, J. 1. This is an appeal against the judgment and order, dated 21.11.2012, passed by the learned Special Judge, Assam in Special Case No. 1/2012 convicting and sentencing the accused-appellant to rigorous imprisonment for 4 (four) years with a fine of Rs. 10,00,000/- and in default of payment of fine to rigorous imprisonment for another 1 (one) year for commission of offence under Sections 13(1)(e)/13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act'). 2. I have heard Mr. SS Dey, learned senior counsel assisted by Mr. M Nath, appearing for the appellant as well as Mr. BJ Dutta, learned Additional Public Prosecutor appearing for 3. The fact of the case is that, PW 7 Sri Debajit Hazarika, Additional Superintendent of Police, Vigilance & Anti Corruption, Assam lodged an FIR with the officer-in-charge, ACB Police Station, Assam, Guwahati as follows:- "In course of enquiring of the allegations against Smt. Sanghamitra Bharali (Das) now serving as Asstt. Language Officer, Assam Legislative Assembly Secretariat, Guwahati, it is transpired that said Sanghamitra Bharali during her tenure of service since 1991 till date acquired huge disproportionate assets and properties worth of several lacs of rupees. She has acquired one HIG Flat at Housefed Complex, Rukminigaon, G.S. Road, Guwahati, Maruti Zen Car, Mobile Phones and Bank balances of more that Rs. 11 lacs. Besides these properties she acquired one Flat at Godavari Complex, Mumbai and businesses establishment at Mumbai where she invested crores of rupees. In this regard, I request you kindly to register a case under Section 13(2) of the PC Act for violation of provisions of Section 13(e) of the PC Act, 1988 against Smt. Sanghamitra Barali (Das), W/o Dr. Monideep Das, Asstt. Language Officer, Assam Legislative Assembly Secretariat, Guwahati." On receipt of the FIR, the ACB Police Station registered a case being No. 8/2001 under Sections 13(2) of the PC Act. 4. During the course of investigation, the Police seized some documents relating to properties owned by the accused-appellant including investment documents worth Rs. 32,72,835.62/- which was disproportionate to the known sources of income of the accused-appellant. 5. 4. During the course of investigation, the Police seized some documents relating to properties owned by the accused-appellant including investment documents worth Rs. 32,72,835.62/- which was disproportionate to the known sources of income of the accused-appellant. 5. After exhausting all the required legal formalities, the learned Special Judge, Assam framed a formal charge against the accused-appellant under Sections 13(1)(e)/13(2) of the PC Act to the effect that for the period from 1991 to 22.08.2001 in her capacity as Assistant Language Officer, Assam Legislative Department, Secretariat, Dispur acquired disproportionate assets amounting to Rs. 32,72,835.62/-. The accused-appellant pleaded not 6. I have scanned the evidence on record of the 16 (sixteen) prosecution witnesses. 7. After closure of the prosecution witnesses, statement of the accused-appellant was recorded under Section 313 of the CrPC. In her such statement, the accused-appellant denied the accusations. She also declined to adduce defence evidence. 8. The evidence of PW 10, who was initially investigating the case, is that on 22.08.2001, the instant case was endorsed to him for investigation. It is found in his evidence that the accused-appellant acquired 1. One HIG Flat at Housefed Complex, Rukminigaon, GS Road, Guwahati, 2. Maruti Zen, 3. Mobile Phone and 4. Bank Balance more than Rs. 11 lakhs. The accused-appellant acquired another flat at Godabari Complex, Mumbai and also investigated cores of money in business establishment at Mumbai. After obtaining search warrant from the learned Court, he searched the house and premises of the accused-appellant at Guwahati and Mumbai. The flat at Godabari at Godavari Housing Society, Mumbai was under lock and key and also there was no caretaker for the flat. So, he could not search the Godabari flat, and on his request, the Secretary of the Society furnished him the documents relating to purchase of the flat. The Secretary of the Society was Mr. GB Patil. He seized the agreement for sale of the flat executed, between Suchitra Puzari and the accused-appellant, on 03.01.2001, for transfer of the flat at Rs. 18,00,000/-. The amount was drawn in Canara Bank. The details of the flat is plot is RDP 2CR14 Versova NHADA, Bombay-53. He seized the agreement vide Ext-9 wherein the Ext 9(1) is the signature of Mr. GB Patil, i.e. the Secretary of the Society of the flat. The agreement seized vide Ext. 9 was given in the custody of said Mr. The amount was drawn in Canara Bank. The details of the flat is plot is RDP 2CR14 Versova NHADA, Bombay-53. He seized the agreement vide Ext-9 wherein the Ext 9(1) is the signature of Mr. GB Patil, i.e. the Secretary of the Society of the flat. The agreement seized vide Ext. 9 was given in the custody of said Mr. GB Patil on condition to produce as and when called for. He also seized the Passbook A/C No. 01190035386 in the name of the accused-appellant in the State Bank of India, Dispur Branch with balance of Rs. 84,332/- as on July, 2001, vide M Ext-30 and Passbook A/C No. 4063 of Canara Bank, Dispur Branch in the name of the accused-appellant with deposit of Rs. 2,30,445.20 on being produced by the accused-appellant, vide Ext. 10. 9. The PW 14 is another Investigating Police Officer, who has taken charge of the investigation of the case after PW 10. He seized the following from PW 8, Nandini Deka, in-charge, Record Branch on 26.12.2011:- i. enquiry report, dated 22.04.2001 submitted by the PW 7 Sri Debojit Hazarika, the then Additional SP Law, vide Ext M.Ext-16, ii. Paper cuttings of the news papers with the relevant news items, iii. Salary statement of the accused-appellant since her joining till her dismissal from service on 07.11.2002, vide Ext. 9, iv. Some photo copies of the documents regarding the flat of the accused-appellant at Versova Godavari Cooperative Housing Society Limited, Mumbai, vide M Ext-19, v. Letter of Ashok Agarwal, proprietor of M/s. AK Agarwal and Company, dated 3.08.2001 with enclosure addressed to Sri K Dalto, DSP, Vigilance & Anti Corruption regarding details of his company and particulars of share transaction with the accused-appellant, vide M. Ext-1, vi. Statement of Bank account of M/s. AK Agarwal and Company, vide M.Ext.1 (1) to M.Ext. 1 (3), vii. A letter of Manik Chand & Son (Jewellery) Pvt. Limited, dated 23.12.2011 addressed to the DSP, Vigilance & Anti-Corruption regarding value of gold ornaments, vide M.Ext. 21. On the basis of the seized documents and statement of the witnesses, he made calculation of assets and liabilities of the accused-appellant, vide Ext. 12, wherein Ext. 12(A) is the calculation sheet in 12 pages. The net income of the accused-appellant was Rs. 28,30763/-. The total expenditure was Rs. 61,03598.62/-. The heads of income of the accused-appellant are:-i. Net salary-Rs. 6,07586/-, ii. 12, wherein Ext. 12(A) is the calculation sheet in 12 pages. The net income of the accused-appellant was Rs. 28,30763/-. The total expenditure was Rs. 61,03598.62/-. The heads of income of the accused-appellant are:-i. Net salary-Rs. 6,07586/-, ii. Sold out of share-(a) Rs. 9,75,000/- and (b) Rs. 9,28,440, iii. Withdrawal of term deposits alongwith interest amount is Rs. 3,19,737/-, iv. Expenditure/investment Rs. 2,53,277.77/-, inventory of household goods, value of flats Rs. 55,93,236.85/- and other expenditures are Rs. 2,57,084, total expenditure Rs. 61,03,598.62/- and the disproportionate assets is Rs. 32,72,835.62/-. Thereafter, he filed the charge-sheet, vide Ext. 12. 10. The evidence of PW 1 is that he is a licensed share broker. It appears from his evidence that the accused-appellant purchased shares from him worth Rs. 70,000/- on 12.11.1999 and sold the same on 04.12.2000 for an amount totalling to Rs. 19,03,160/- and she got the money through two cheques for Rs. 9,75,000/- and Rs. 9,28,440/- respectively 11. The PW 2 is Sri, Nava Barman who is the witness to the seizure, vide Ext. 2. Vide this exhibit, the Police seized some gold ornaments and other documents from the residence of the accused-appellant. He also deposed that the seizure list and the items were written in English and he does not know the contents as he did not knew English. He specifically stated that he had simply put his signature, in Ext. 2 vide Ext. 2(1) to Ext. 2(4). At the time of search in the house of the accused-appellant he was working with an electrician in a flat near to the house of the accused-appellant. 12. The PW 3, is the then Senior Manager of Canara Bank, Dispur Branch. The Police seized some documents from his bank on 03.06.2008, vide Ext. 4. These documents are as follows:- i) Original application of the accused-appellant, ii) Original demand draft challan application from, dated 23.12.2000 submitted by the accused-appellant for obtaining demand draft of Rs. 18 lakhs in favour of Suchitra Altha Pujari, Mumbai, Maharashtra, marked as M.Ext.3. The accused-appellant was introduced by Sri Manidip Das, her husband, examined as PW 5. Police also seized another five documents, vide Ext. 5, which were i. Original money (cheque) deposit voucher, dated 20.12.2000 for Rs. 18 lakhs in favour of Suchitra Altha Pujari, Mumbai, Maharashtra, marked as M.Ext.3. The accused-appellant was introduced by Sri Manidip Das, her husband, examined as PW 5. Police also seized another five documents, vide Ext. 5, which were i. Original money (cheque) deposit voucher, dated 20.12.2000 for Rs. 9,75,000/-, vide No. 139792 of UBI AT Road Branch for crediting to SB A/C No. 4063 in Canara Bank of the accused-appellant, M.Ext.4 is the documents and M.Ext.4(1) is the signature of the accused-appellant, ii. One original money (cheque) deposit voucher, dated 20.12.2000 for Rs. 9,28,440, vide cheque No. 139793, dated 20.12.2000 of UBI for crediting to SB A/C No. 4063 in Canara Bank of the accused-appellant, vide M.Ext-5, iii) One original money (cash) deposit voucher, dated 26.02.2000 for Rs. 1,50,000/- for crediting to SB A/C No. 4063 in Canara Bank of the accused-appellant, vide M.Ext.6, iv) One original money (cash) deposit voucher, dated 11.02.2000 for Rs. 35,000/- for crediting in SB A/C No. 4063 in Canara Bank of the accused-appellant, vide M.Ext.7 and v) One original money (cash) deposit voucher, dated 07.03.2000 for Rs. 20,000/- for crediting in SB A/C No. 4063 in Canara Bank of the accused-appellant, vide M.Ext.8. He also deposed that on 23.12.2000, she applied for demand draft for Rs. 18 lakhs. 13. The PW 4, is the Retired Senior Financial Advisor, Assam Legislative Assembly, whose evidence in relevant so far salary statement and the dismissal of the accused-appellant from service is concerned. His evidence is that the accused-appellant was serving from 22.08.1991 till her dismissal on 07.11.2002 and her total salary was Rs. 6,07,586. 14. The PW 5 is the husband of the accused-appellant who deposed that he got married with the accused-appellant in the year 1986 and their marriage was dissolved in the year 2002 and sine the year 2000, the accused-appellant is residing separately from him. According to his evidence, at the time of their marriage, the accused-appellant did not have any property in her name and he never contributed to purchase any property by her. However, in 1998, the accused-appellant purchased a Maruti 800 car for which he contributed a sum of Rs. 70,000/- or Rs. 75,000/- only. 15. The PW 6 is the Senior Inspector of Co-operative Society, Assam, Sri Razzaqul Hussain. However, in 1998, the accused-appellant purchased a Maruti 800 car for which he contributed a sum of Rs. 70,000/- or Rs. 75,000/- only. 15. The PW 6 is the Senior Inspector of Co-operative Society, Assam, Sri Razzaqul Hussain. He deposed about having a flat by the accused-appellant of Higher Income Group for which she applied for on 16.02.2000 and Rs. 1 lakh was paid in advance to the total price of Rs. 11,79,800/-. The advance of Rs. 1 lakh was paid in two instalments @ Rs. 50,000/- each. She paid total of Rs. 11,79,800/- in 19 instalments for the flat she purchased from the said Co-operative Society. It has come out from his evidence that the flat was allotted to the accused-appellant after observing all required rules and procedures. 16. The PW 7 is the informant who deposed that on the basis of the news paper report published in "The Telegraph" on 17.08.2001 and "Amar Assam" on 17.08.2001 about acquisition of huge asset, disproportionate to her known sources of income, he took up the enquiry and after making the enquiry, he came to know that the accused-appellant possessed one HIG Flat C-305 worth Rs. 11,79800/- at Housefed Complex, Rukmini Gaon, GS Road, Guwahati, a fixed deposit in the State Bank of India, Dipur Branch for Rs. 106903 in three accounts as stated by him in his evidence. In that account No. 01190035386, the accused-appellant deposited an amount of Rs. 7 lakhs and this amount was withdrawn by cheque No. 00833624 for making a draft. During that year, she had purchased a maruti zen car and one mobile handset. He also came to know that she has acquired a flat at Godavari Apartment, Versova, Mumbai disproportionate to her income as a government servant. On 22.08.2008, this witness submitted his enquiry report to the IGP, Vigilance & Anti-Corruption, vide Ext. 16. Thereafter, on the basis of the direction issued by the IGP, he lodged the FIR, vide Ext. 6. He also claimed that she led a luxurious life. He has admitted that during enquiry he never visited Mumbai to confirm the possession of the flat by the accused-appellant and on the basis of the information he gathered. 17. The PW 8 is the DSP, Vigilance & Anti-Corruption, Guwahati and also the record Incharge. 6. He also claimed that she led a luxurious life. He has admitted that during enquiry he never visited Mumbai to confirm the possession of the flat by the accused-appellant and on the basis of the information he gathered. 17. The PW 8 is the DSP, Vigilance & Anti-Corruption, Guwahati and also the record Incharge. The Investigating Police Officer seized from her the enquiry report, dated 22.08.2001 submitted by the PW 7 as well as the paper cutting of the news items, referred to by the PW 7, salary statement of the accused-appellant, some photo-copies of documents relating to flat of the accused-appellant at Mumbai, accounts of the Ashok Agarwal Proprietor of M/s. AK Agarwal & Co. and a letter from Manikchand & Sons Jewelleries, dated 23.12.2011. 18. The PW 9 is the Assistant General Manager, SBI, Dispur. He has deposed regarding the following seizure of documents, vide Ext. 8.8(1). i. One certificate of cash voucher in the name of the accused-appellant depositing Rs. 7 lakhs in A/C No. 01190035386 on 19.02.2001 issued by the Deputy Manager, vide M. Ext. 22. ii. One original copy of A/C opening from in the name of the accused-appellant's A/C No. 01190035386 which was opened at SBI, Dispur branch on 19.06.2000 with her original photograph, vide M.Ext.-23. iii. One original cheque No. 833624, dated 19.02.2001 for Rs. 701400/- A/C No. 01190035386 issued by the accused-appellant. iv. One term deposit receipt in original No. 8778003 for rupees one lakh, dated 18.09.2000 in the name of the accused-appellant due on 18.09.2002 with a maturity value of Rs. 106579/-, vide M.Ext-25, which is the said TDR. v. One term deposit receipt in original No. 878012, dated 29.09.2002 for Rs. 1,00000/- in the name of the accused-appellant due on 20.09.2002, vide M.Ext. -26, which is the said TDR. vi. One term deposit receipt in original No. 878004, dated 18.09.2000 for Rs. 10,0000/- in the name of the accused-appellant due on 18.09.2002, vide M.Ext. - 27, which is the said TDR and vii. One statement of account in the name of the accused-appellant's A/c No. 01190035386 from 19.06.2000 to 05.01.2005, vide M.Ext.-28. 19. The PW 11 was an officer of the UBI, AT Road, Guwahati Branch. The Police seized from him two cheques, vide seizure list, Ext. 11. Vide Ext. 11, the Police seized one cheque No. 139792, dated 14.12.2000 of UBI for Rs. 9,75,000/- and Rs. 19. The PW 11 was an officer of the UBI, AT Road, Guwahati Branch. The Police seized from him two cheques, vide seizure list, Ext. 11. Vide Ext. 11, the Police seized one cheque No. 139792, dated 14.12.2000 of UBI for Rs. 9,75,000/- and Rs. 9,28,440/- issued in favour of the accused-appellant by Ashok Agarwal, Proprietor of AK Agarwal and Company (M.Ext. 32). 20. The PW 12 issued notice to the accused-appellant, and so far he remembered, the accused-appellant, did not submit her assets and liability statement in accordance with the notice. 21. The PW 13 is another Investigating Police Officer, who seized certain documents from the State Bank of India, Dispur Branch on being produced by the Deputy Manager of SBI, which are as follows:- i) one certificate of Cash voucher in the name of Smt. Sanghamitra Das Bharali on 19-02-2001, which seized by the authorized officer, Deputy Manager, Radha Ch. Sarkar of Dispur SBI Rs. 7,00,000/- (M. Ext. 22), ii) one original Pass Book of A/C No. 01190035386, in the name of Sanghamitra Das Bharali, with her photograph containing seal and signature of the SBI, Dispur Branch (M. Ext. 23), iii) one original cheque of Rs. 7,01,400/-, dated 19-02-2001, from Cheque No. 833624 against the Account No. 01190035386 (M. Ext. 24), iv) one term deposit receipt No. 878003, in original, of Rs. 1,00,000/- in the name of Smt. Sanghmitra Das Bharali, dated 18-09-2000 and due on 18-09-2002 with seal and signature of the SBI Dispur Branch, maturity value of Rs. 1,06,579/- (M. Ext. 25), v) One term deposit receipt, in original, No. 878012, dated 20-09-2000, due on 20-09-2002, of Rs. 1,00,000/- in the name of Smt. Sanghamitra Das Bharali, with seal and signature of the SBI, Dispur Branch, maturity value of Rs. 1,06,579/- (M. Ext. 26), vi) one term deposit receipt, in original, No. 878004, dated 18-09-2000, of Rs. 1,00,000/- in the name of Smt. Sangamitra Das Bharali, maturity value Rs. 1,06,579/- (M. Ext. 27), vii) one photocopy of SBI Account No. 01190035386 of Smt. Sanghamitra Das Bharali, at Dispur Branch of SBI, starting from 19-06-2000 (M. Ext. 28). In his cross-examination, he is found to have stated that he went to the Bank to seize the documents after seven years of registration of the case. 22. The PW 15 was the DSP of ACB Police Station, Assam who was entrusted to complete the investigation of the case. 28). In his cross-examination, he is found to have stated that he went to the Bank to seize the documents after seven years of registration of the case. 22. The PW 15 was the DSP of ACB Police Station, Assam who was entrusted to complete the investigation of the case. After taking up the investigation of the case, on 03.06.2008, he went to the Canara Bank, Dispur Branch to seize the documents as stated by the PW 3. His evidence is same with the evidence of PW 3 in respect of the seizures. 23. The PW 16 is the Manager of M/s. Manik Chand & Sons Jewelleries Pvt. Limited, Christianbasti, GS Road, Guwahati. The said firm deals in Gold ornaments. On 23.12.2011, the Deputy Superintendent of Police, Mr. K Bordoloi (PW 4) came to their firm for valuation of the following gold ornaments:-1) Gold Bangles one pair 1.5 tolas, 2) Gold chain two pieces 1.5 tola each, 3) Gold long chain one piece 5 tolas, 4) Gold Bala one pair 2 tolas, 5) Gold earring one pair 4 annas, 6) Gold chain with locket (Ganesh) one piece 2 tolas, 7) Jumka one pair 12 annas, 8) Gold chain with locket two pieces 4 annas, 9) Gold chain silver moti fitted one piece 4 annas, 10) Gold chain one piece 1.5 tolas, 11) Gold earring one piece 6 annas, 12) Gold necklace one piece 2 tolas and 13) Gold ring one piece 8 annas. The PW 16 certified the gold to be valued at Rs. 94,560/-, for the check period, vide M.Ext-21. The valuation of the gold was given on 240 grams. In his cross-examination, he admitted that he had submitted the valuation report of the gold, vide the aforesaid Ext. -21. But, the golds were not produced before him and he did not get the chance to weigh the gold. He has also admitted that he is not appointed as by the Government as a gold valuer. 24. Before discussing the evidence on record to weigh the merit of the case for the prosecution, this Court would like to take up the first argument advanced by the learned senior counsel for the accused-appellant that to the effect, the prosecution did not obtain sanction for prosecuting the accused-appellant under Section 19 of the PC Act although she was a government servant at the relevant time of the check period. There is no dispute at the bar that the accused-appellant was dismissed from service on 07.11.2002, and as such, she ceased to be a public servant at the time of laying of the charge-sheet as well as at the time of taking cognizance by the learned Special Judge, Assam on 09.02.2012. Therefore, in view of the decisions, rendered by the Hon'ble Supreme Court, in L Narayana Swamy v. State of Karnataka and Ors., reported in (2016) 9 SCC 598 and Abhay Singh Chautala v. Central Bureau of Investigation, reported in (2011) 7 SCC 141 , this argument of the learned senior counsel for the accused-appellant has no force and thus not accepted by this Court. 25. The learned trial court in the judgment found the disproportionate assets in the possession of the accused-appellant to the tune of Rs. 28,65,671/- as against the charge for disproportionate assets amounting to Rs. 32,72,835.62/-. 26. The evidence of PW 16 is that he determined the value of the gold ornaments at Rs. 94,560/- which weighed 240 grams. But, in his cross-examination, he admitted that the gold ornaments were never produced before him for valuation. As such, he did not logically get chance also to certify the genuineness of the gold, apart from not being able to weigh the same. That apart, he deposed about the quantity against each of the gold ornaments, for which he was asked to issue valuation certificate. There is no evidence, on record, as to who weighed the gold ornaments to indicate the weight against each items of the ornaments. Therefore, it is clear from the evidence of PW 16 that the weight and valuation of the gold ornaments were certified without the same being produced before him. In view of such position, appearing from the evidence of PW 16, this Court is unable to accept the valuation of the gold ornaments issued by the PW 16, vide M.Ext-21. It deserves a mention here that PW 16 is admittedly not a approved gold valuer and for this reasons also the M. Ext-21 cannot be taken to be correct and genuine. What is surprising is that the valuation certificate was issued by this witness and obtained by the investigating officer without producing the gold ornaments is not a fact disputed. 27. What is surprising is that the valuation certificate was issued by this witness and obtained by the investigating officer without producing the gold ornaments is not a fact disputed. 27. It has come out from the evidence PW 10 that apart from a flat at Guwahati, Rukminigaon, she had purchased a flat at Godavari Housing Society, Mumbai, which was under lock and key while he visited the flat. The Secretary of the Society, Mr. GB Patil, produced him the agreement for sale of the flat at Mumbai to the accused-appellant for Rs. 18,00,000/-. This agreement, claimed to have been seized by the PW 10 has not been produced in the Court as evidence and it has come out from the evidence of PW 8 that the Investigating Police Officer seized from her some photocopies of documents relating to the flat of the accused-appellant at Mumbai. This evidence is led by the PW 8 against Sl. No. 4 in her evidence in respect of the seizure made from her. Admittedly, the original agreement for sale, seized by the PW 10, was put in the custody of GB Patil, the Secretary of the Godavari Housing Society, Mumbai. This original agreement for sale was never produced before the Court nor the said GB Patil has been examined by the prosecution. Even if, for the sake of argument, it is presumed that the said agreement is produced before the Court as evidence, yet it would not have proved that the accused-appellant had purchased a flat at Mumbai at the price of Rs. 18,00,000/- as the agreement for sale is not a deed of conveyance of ownership or title. No document to proof that the accused-appellant is the owner of the flat at Mumbai, referred to by the Investigating Police Officer in his evidence. On the other hand, although the agreement for sale is mentioned by PW 10 in his evidence yet same is also not produced and proved, as stated above. Therefore, the allegation of disproportionate assets worth Rs. 18,00,000/- being the price of the flat at Mumbai has not been substantiated by the prosecution. On the other hand, the PW 9, who is the Assistant General Manager, State Bank of India, Dispur Branch, deposed against Sl. No. 1 in his evidence that one certificate of cash voucher in the name of the accused-appellant depositing Rs. 18,00,000/- being the price of the flat at Mumbai has not been substantiated by the prosecution. On the other hand, the PW 9, who is the Assistant General Manager, State Bank of India, Dispur Branch, deposed against Sl. No. 1 in his evidence that one certificate of cash voucher in the name of the accused-appellant depositing Rs. 7 lakhs in Account No. 01190035386 on 19.02.2001 was seized, vide M.Ext. -22. He also stated in Sl. No. 3 of his evidence that one original cheque No. 833624, dated 19.02.2001 for Rs. 7,01,400/- in the same account, i.e., the A/C No. 01190035386 issued by the accused-appellant, was also seized, vide M.Ext. -24. So, the cheque for Rs. 7,01,400/- is not a credit in the aforesaid account of the accused-appellant. But, as per the calculation sheet, marked as 12(A), under the heading "As per Search Seizure List MR No. 9/2008 dated 23.06.2008" against Sl. No. 1, one certificate of cash voucher, dated 19.02.2001 was seized. But, in Sl. No. 3, thereof, one original cheque bearing No. 833624, dated 19.02.2001 credited to her aforesaid A/C No. 01190035386 is shown. But, the cheque mentioned at Sl. No. 3 cannot be shown to have been credited in the aforesaid account of the accused-appellant. But, the Investigating Police Officer, in his calculation sheet, Ext. 12(A), showed this amount to have been credited in the aforesaid account of the accused-appellant. Therefore, the amount of Rs. 7,01,400/- has to be taken as not credited, and therefore, this amount cannot be calculated while calculating the alleged disproportionate assets of the accused-appellant. Therefore, the calculation made in respect of this Rs. 7,01,400/- cannot be shown as disproportionate assets of the accused-appellant. 28. On the other hand, it appears from the judgment of the learned trial court, at para 22, that the household materials purchased by the accused-appellant during the check period is of Rs. 3,49,199/- (this amount is calculated by this Court on the basis of the findings of the learned trial court in para 22 of the judgment). But, the evidence of PW 14, who made the calculation of the house hold items of the accused-appellant, clearly shows that he has no technical knowledge for calculation of the value of the house hold goods. But, the evidence of PW 14, who made the calculation of the house hold items of the accused-appellant, clearly shows that he has no technical knowledge for calculation of the value of the house hold goods. That apart, it has not come out from his evidence that what is the basis on which calculation of the value of the household goods of the accused-appellant was made. That being so, his calculation cannot be accepted to be correct and accurate. 29. On the other hand, the evidence of PW 5/the former husband of the accused-appellant, does not appear to be reliable to this Court. His evidence is that in the year 1999 he has given an amount of Rs. 70,000/- or Rs. 75,000/- to the accused-appellant to purchase a maruti car at the price of Rs. 2,20,000/- in the year 1998. The PW 5 claims that the accused-appellant had no property in her name at the time of her marriage and he also did not give anything to her except the aforesaid amount of money to purchase a car. It cannot be said that at the time of marriage, the accused-appellant did not bring any clothes or utensils with her. That apart, the evidence of the PW 5 is not reliable for the reasons that he has not mentioned in his evidence that the accused-appellant had purchased shares and sold such shares for Rs. 19,03,160/- in the year 2000 before the marriage between them got dissolved, which she admittedly earned from sale of shares during the subsistence of their marriage. He even introduced the accused-appellant in the Canara Bank on 23.12.2000 while she applied for the bank draft for Rs. 18,00,000/- as found from the evidence of the PW 3, meaning thereby, he knew about such income of the accused-appellant during the check period. It also deserves a mention that some utensils and wearing clothes have also been assessed, being household goods, while calculating the disproportionate assets. But, clothes and utensils shown in the calculation sheet by the Investigating Police Officer are of daily use which are also said to have not been therewith the accused-appellant at the time of her marriage, and therefore, the evidence of her husband/PW 5 does not inspire confidence. The evidence shows that the accused-appellant got married with the PW 5 in the year 1986 and she entered into service in 1991. The evidence shows that the accused-appellant got married with the PW 5 in the year 1986 and she entered into service in 1991. Therefore, during the period of 5 (five) years after marriage and before joining the service, the accused-appellant did not have any property is absolutely unbelievable being unrealistic. 30. Therefore, it appears from the discussions above, and the findings recorded therein, that, the alleged disproportionate assets worth Rs. 18,00,000/-, Rs. 7,01,400/-, and the house hold goods worth Rs. 3,49,199/- and gold ornaments worth Rs. 94,560/-, beyond the known sources of income of the accused-appellant, could not be established by the prosecution beyond all reasonable doubt, and therefore, the findings recorded by the learned trial court about possession of disproportionate assets by the accused-appellant, beyond her known sources of income, is not based on materials on record. 31. This Court, in Criminal Appeal No. 9/2010 (Pozir Uddin Ahmed v. The Union of India), held in para 19 as follows:- "It needs to be remembered that it is the burden of the prosecution to prove that the person, accused of having been found in possession of assets disproportionate to his known sources of income, is proved, beyond reasonable doubt, to have been found in possession of property disproportionate to his known sources of income. It is on discharge of this initial burden that the burden shifts to the defence to satisfactorily account for the properties, which the accused is found to be in possession of. Unless the initial burden is discharged by the prosecution, an accused cannot be made liable nor can he be imposed the liability to satisfactorily account for valuation of the assets, which are claimed to have been found to be in his possession." 32. Therefore, the initial burden to prove the accusations against the accused-appellant, beyond all reasonable doubt, is on the prosecution. Only after discharge of such burden by the prosecution, the burden shifts to the defence. In view of the forgoing discussions, the prosecution fails to discharge its initial burden mentioned above. 33. In the instant case, in view of the inaccurate calculation of the alleged disproportion assets of the accused-appellant and also failure to prove ownership of the flat at Mumbai at a cost of Rs. In view of the forgoing discussions, the prosecution fails to discharge its initial burden mentioned above. 33. In the instant case, in view of the inaccurate calculation of the alleged disproportion assets of the accused-appellant and also failure to prove ownership of the flat at Mumbai at a cost of Rs. 18,00,000/-, beyond her known sources of income, this Court is of the view that the prosecution failed to prove the accusations against the accused-appellant beyond all reasonable doubt; therefore, the judgment of learned trial Court needs to be interfered with. 34. Accordingly, the appeal is allowed and the judgment of the learned trial court is set aside. 35. Send down the LCR alongwith a copy of this judgment.