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2022 DIGILAW 2165 (RAJ)

Sita Kurria v. State

2022-08-01

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT 1. This Criminal Appeal under Section 374 CrPC have been peferred claiming the following reliefs: "It is, therefore most respectfully prayed that this appeal may kindly be allowed, judgment of conviction and sentence dated 27.11.2006 passed by the Learned Special Judge Prevention Of Corruption Act Cases, Bikaner in Sessions Case No. 166/97 may kindly be quashed and set aside and Appellant may be acquitted for the alleged offences." 2. This Criminal Appeal has been preferred against the judgment dated 27.11.2006 passed the learned Special Judge Prevention Of Corruption Act Cases, Bikaner in Sessions Case No. 166/97 whereby the learned Court convicted the appellant's late husband, Uda Ram, for the offences under sections 13 (1)(e) read with 13(2) of the Prevention of Corruption Act, and awarded him a sentence of 1 year S.I. along with a fine of Rs. 50,000/- and in default of payment of the same, he was to further undergo 6 months S.I. 3. Brief facts of the case as placed before this Court by learned counsel for the appellant are that an F.I.R, bearing F.I.R. No. 32/93 (Ex.P/61) was registered by the A.C.B., Sri Ganganagar against Late Uda Ram on the basis of a preliminary enquiry bearing no. 8/91, wherein it was alleged that Uda Ram, between the years 1991 - 1993 while posted as 'Bhu Prabandhan Adhikari' miused his official position, and acquired assets disproportionate to his known sources of income, at the time. And that, the investigating officer arrived at a finding that Uda Ram's valid income during the course of the check-period was Rs. 6,35,664/- whereas he acquired properties in his own name and in the name of his family members to the tune of Rs. 12,01,000/- and that thus, properties valuing Rs. 5,65,336/- were found to be in excess of the known sources of income. And that, accordingly a charge sheet was filed against him for the offences under Sections 13(1) (e) and 13(2) of the Prevention of Corruption Act, 1988 and the learned Court framed charges, and subsequently upon trial convicted Late Uda Ram. 4. Learned counsel for the appellant submitted that the prosecution examined as many as 25 witnesses and that his savings were shown as 1/3rd of his income, whereas it should have been more than half of his income. 4. Learned counsel for the appellant submitted that the prosecution examined as many as 25 witnesses and that his savings were shown as 1/3rd of his income, whereas it should have been more than half of his income. And that, the income of wife, from embroidery, stitching and dairy farming, which was her independent income and the income of his son, Arvind, who was engaged in the business of Oil, was incorrectly tallied along with his income. And that, it was in fact, his son who purchased the plot, bearing No. F-74 and that it was his wife who purchased the plot No. SF-184 in Balotra out of her own income, by taking a loan from R.F.C. and then sold the same and purchased an industrial plot in Sri Ganganagar and established an industry, and that the installments of R.F.C. were re-paid from the income derived from the said industry. And that, R.I.I.C.O. and R.F.C. granted subsidy to his wife, figures of which have not been accounted for in the total income of Late Uda Ram for the concerned time period. Furthermore, learned counsel contends that the evaluation of the construction of the factory was excessive, because the factory was constructed under Late Uda Ram's supervision, and that was the reason, the construction charges were 20-25% less than the P.W.D. valuation of the same. 5. Learned counsel for the appellant further submitted that Late Uda Ram had an ancestral home at Nagore, which was given on rent from time to time, and out of that, a sum of Rs. 78,000/- was earned from the same, and that Rs. 38,000/- was earned from the sale of their car, both of which were also not included in the income of Uda Ram. 6. Learned counsel for the appellant thus submitted that the learned Court below therefore incorrectly calculated the total income of Uda Ram, and erred in holding that Uda Ram's income was in an excess of Rs. 3,38,489/- of his known sources of income. 7. On the other hand, the learned Public Prosecutor submits that the learned Court below has rightly passed the impugned order after taking into due consideration the overall facts and circumstances, and the evidences placed on record before it. 8. Learned Public Prosecutor placed reliance on the judgments, rendered by the Hon'ble Apex Court in Krishnanand Vs. 7. On the other hand, the learned Public Prosecutor submits that the learned Court below has rightly passed the impugned order after taking into due consideration the overall facts and circumstances, and the evidences placed on record before it. 8. Learned Public Prosecutor placed reliance on the judgments, rendered by the Hon'ble Apex Court in Krishnanand Vs. The State of Madhya Pradesh (1977) 1 SCC 816 and by a Coordinate Bench of this Court in Vazir Shewaramani Vs. State of Rajasthan S.B. Criminal Appeal No. 1/1997 wherein the following observations were made:- In Krishnanand (supra):- "It will, therefore, be seen that as against an aggregate surplus income of Rupees 44,383.59 which was available to the appellant during the period in question, the appellant possessed total assets worth Rupees 55,732.25. The assets possessed by the appellant were thus in excess of the surplus income available to him. but since the excess is comparatively small - it is less than ten per cent of the total income of Rs. 1,27,715.43 - we do not think it would be right to hold that the assets found in the possession of the appellant were disproportionate to his known sources of income so as to justify the raising of the presumption under Sub-section (3) of Section 5. We are of the view that, on the facts of the present case the High Court as well as the Special Judge were in error in raising the presumption contained in Sub-section (3) of Section 5 and convicting the appellant on the basis of such presumption. We accordingly allow the appeal, set aside the order of conviction and sentence recorded against the appellant and acquit him of the offences charged against him. Since the appellant is on bail, the bail bonds will stand discharged." In Vazir Shewaramani (supra):- "8. The prosecution proved the fact that the accused acquired the following properties during the check period: 1. Plot No.182-C for a consideration of Rs.41,500/-; 2. Colour Television Videocon for a sum of Rs.10,000/-; 3. A scooter RNV-4996 for a sum of Rs.13,405/-. 9. In addition thereto, the accused was found in possession of sundry white goods, the total value whereof came to be Rs.86,563/-. As against this, the known source of income available to the accused, which primarily was his salary, was around Rs.28,700/- after deducting the expenditure. A scooter RNV-4996 for a sum of Rs.13,405/-. 9. In addition thereto, the accused was found in possession of sundry white goods, the total value whereof came to be Rs.86,563/-. As against this, the known source of income available to the accused, which primarily was his salary, was around Rs.28,700/- after deducting the expenditure. It may be stated here that for establishing the fact that the accused acquired assets disproportionate to his known source of income, the prosecution would have to prove by proper evidence the income of the accused during the check period and the total value of the assets acquired by him. Shri Gopal Krishna Parihar, the Dy.S.P. (PW-4), who registered the FIR, exhibited various salary statements of the accused, which have been proved cumulatively as Ex.P/35 & Ex.P/ 36. 10. The salary details of the accused are mentioned in the FIR (Ex.P/4) and the prosecution sanction (Ex.P/50), as per which, the accused earned salary/stipend to the tune of Rs.83,000/- during the check period; of which, 33% was taken to be the savings which came out to be Rs.27,390/-. It may be reiterated that Krishna Gopal (PW-7) categorically stated that the accused paid the sum of Rs.41,500/- to him for buying the plot at Bhilwara and no significant cross examination was made from Krishna Gopal on this aspect. The stand of the accused that he got a sum of Rs.9,000/- as rental income and that a sum of Rs.38,125/- was received by him by way of gifts etc. in the marriage and at the time of the birth of his daughter was accepted by the prosecution. The total gross value of assets of accused till the date of filing of the FIR came to be worth Rs.1,73,121/-. As per the FIR, the entire assessment was made by the Investigating Officer and finally the prosecution sanction (Ex.P/50) came to be issued with a conclusion that the accused acquired assets worth Rs.57,863/- which were in excess of his known source of income. A major percentage of this excess value was comprised of the plot, which, as per the prosecution, the accused had purchased from Krishna Gopal (PW-7). The prosecution duly proved by the evidence of Krishna Gopal (PW-7) that the plot was unquestionably sold to the accusedappellant for a consideration of Rs.41,500/-. A major percentage of this excess value was comprised of the plot, which, as per the prosecution, the accused had purchased from Krishna Gopal (PW-7). The prosecution duly proved by the evidence of Krishna Gopal (PW-7) that the plot was unquestionably sold to the accusedappellant for a consideration of Rs.41,500/-. The accused took a defence that this property was, as a matter of fact, procured by him for his sister-in- law Smt. Renu (DW-6). This fact was sought to be established from the evidence of Smt. Renu (DW-6) and from her income tax return. However, I find that the income tax return came to be submitted as a stand alone instance and that too much after the FIR had been registered. There being no reason to discard the testimony of Krishna Gopal (PW-7) and the documents (EX.P/17) establishing the fact that the accused appellant has acquired the said plot, this court has no hesitation in holding that the trial court was perfectly justified in concluding that the accused appellant himself purchased the plot for an amount, which was well beyond his known source of income i.e to say illegally derived money. Thus, the prosecution duly established the fact that the assets of the accused were well in excess of his known source of income and his act tantamounted to acquisition of disproportionate assets within the meaning of Section 13 (1) (e) read with Section 13 (2) of the Prevention of Corruption Act. The defence as produced by the accused primarily comprises the statement of Smt. Renu (DW- 6), which, in my opinion, is not tenable and is worthy of reliance. Smt. Renu is a resident of Ajmer and the plot in question was purchased at Bhilwara where the appellant was posted. As such, there was no occasion for Smt. Renu to have gone out of the way to purchase the plot at Bhilwara. Therefore, the defence theory regarding the plot at Bhilwara having been acquired by Smt. Renu is not substantiated and is a totally fictional plea put forth by the defence at a belated stage. There is no infirmity in the impugned judgment dated 19.12.1996 warranting interference therein. As an upshot of above discussion, I find no merit in this appeal, which is hereby rejected. The accused is on bail. His bail bonds are cancelled. There is no infirmity in the impugned judgment dated 19.12.1996 warranting interference therein. As an upshot of above discussion, I find no merit in this appeal, which is hereby rejected. The accused is on bail. His bail bonds are cancelled. He shall be taken back into custody to serve out the remaining sentence awarded to him by the trial court. Record of the trial court be returned forthwith. 9. Heard learned counsel for both parties, and perused the record of the case and the judgments cited at the Bar. 10. This Court observes that the ratio decidendi laid down by the Hon'ble Apex Court in the judgment of Krishnanand (supra) is that in case the assets possessed by the accused are in the excess of surplus income, if found to be less than 10% of the total income of the accused, then the same cannot be said to be disproportionate to his known sources of income and the presumption, under the Act, against such accused would fail. The same has been affirmed and upheld by the Honb'le Apex Court in subsequent decisions, namely M. Krishna Reddy v. State (1992) 4 SCC 45 and subsequently in Kedari Lal Vs. State of M.P. (2015) 14 SCC 505 and State of Karnataka and Ors. Vs. Selvi J. Jayalalitha and Ors. (2017) 6 SCC 263 . And that therefore, what requires to be seen is whether the surplus income attributed to the Late Uda Ram, is within the 10% upper limit, or beyond it. 11. This Court further observes that the learned Court below in computation of the income of the Late Uda Ram, has categorically found that no independent income was generated neither by his wife nor his son. In arriving at the said conclusion, the learned Court below rightly placed reliance on the fact that the same was proven through any cogent or substantial evidence. 12. This Court also observes that the learned Court below, has rightly computed the total income of the accused-appellant for the concerned time period, has rightly calculated the total income, disregarding the submission made on his behalf that income was generated by his wife and his son. 13. In light of the aforesaid observations, this Court does not find any legal infirmity in the impugned judgment passed by the learned court below. 14. Consequently, the present appeal is dismissed. 13. In light of the aforesaid observations, this Court does not find any legal infirmity in the impugned judgment passed by the learned court below. 14. Consequently, the present appeal is dismissed. Since the accused-appellant had already died during pendency of the appeal, therefore, no consequential order regarding taking him into custody and the sentence is required to be passed. All pending applications stand disposed of. Record of the learned court below be sent back forthwith.