Ram Adhar Ram (A) Ram Adhar Rai vs State Of U.P.
2012 Latest Caselaw 2373 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
(Reserved)
 
Court No. - 23
 

 
Case :- CRIMINAL APPEAL No. - 321 of 1999
 
Petitioner :- Ram Adhar Ram (A) Ram Adhar Rai
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Anup Srivastava,Santosh Srivastava
 
Respondent Counsel :- Govt Advocate,Bireshwar Nath
 

 
Hon'ble Sudhir Kumar Saxena,J.

This criminal appeal filed under Section 374(2) Cr.P.C. is directed against the judgment and order dated 03.07.1999 passed by Sri A.N. Dwivedi, Special Judge, Anti-Corruption (West), U.P., Lucknow convicting the appellant, Ram Adhar Ram @ Ram Adhar Rai under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 ('Act' in short) and sentencing him to rigorous imprisonment for one year in addition to Rs. 50,000/- as fine. Failure to pay the fine would bring further six months' R.I.

Briefly stated facts are that an F.I.R. was lodged on 23.09.1983 to the effect that Ram Adhar Ram while functioning as Postal Assistant (Clerk) in the Postal Division, Barabanki and Lucknow is said to have earned Rs. 2,45,000/- by corrupt and illegal means which are disproportionate to known sources of income. This report was lodged by Sri S.C. Chaubey, S.P. C.B.I. After investigation, chargesheet was submitted on 05.06.1985 whereupon, case was registered, cognizance was taken and accused was summoned. Charge was framed on 14.05.1987 which accused denied and claimed trial.

Prosecution examined as many as 22 witnesses. In the statement made before charge and under Section 313 Cr.P.C. accused denied the allegations and submitted that whatever amount was in his name actually did not belong to him. The amount deposited in F.D.R. was of a Swami Ji, namely, Rudradevanand Saraswati of a 'Math' and on maturity same was taken by Swami Ji/Math. F.D.Rs. were taken on the instructions of Swami Ji. Money belonged to Swami Ji and he had no concern with the said money. It has been submitted that money was deposited by Swami Ji/Math and was taken back by him on maturity. Swami Ji used to live in solitude and did not indulge in any activity except spiritualism. Rama devi, an old lady, resided in Ashram and she was known as 'Gurumata'. No evidence was led in defence. He referred to other sources of income also.

Trial court found that from 02.01.1979 to 26.02.1979 a sum of Rupees 3,60,000/- was deposited by the accused which amount remained in his name for some months which was in excess of Rs. 40,000/- income from known sources, consequently, it will be presumed that accused earned Rs. 3,40,000/- by foul means, as such, he was guilty under Section 5(2) read with Section 5(1)(e) of the Act. Trial court, accordingly, convicted and sentenced him as above vide judgment and order dated 03.07.1999, which has been impugned in this appeal.

Sri Santosh Srivastav, learned counsel for the appellant submitted that trial court has failed to consider that the money shown to be available with the appellant was actually not 'his money', as such, said money cannot be said to be assets which is disproportionate to known source of income. It was further submitted that trial court has failed to consider the defence of the appellant in correct perspective and convicted on the basis of presumption and in any case, sentence awarded is excessive.

Sri Bireshwar Nath, learned counsel for the C.B.I. defended the order of trial court.

Before adverting to the submissions made by the appellant it is necessary to give a look into the evidence adduced by the C.B.I. which examined as many as 22 witnesses.

P.W.-1 Rajendra Swaroop Khusro, Assistant Director, Postal Services has deposed that appellant was posted as Postal Assistant in the postal department at Raebareli. He has proved the signature of appellant.

P.W-2 Manmohan Lal Kapoor, Head Clerk, State Bank of India, Main Branch, Lucknow has stated that he was posted as Honorary Assistant Secretary of Co-operative Credit and Thrifts Society Ltd., Lucknow. He proved Exhibit-Ka-2. He states that Society used to give loan to employees of State Bank of India. Money collected from public was deposited in New Bank of India and on the basis of said receipt society would issue the F.D.Rs. It has further been deposed that in the year, 1979, appellant, one Swami Ji and a lady used to come to the Bank for depositing the money, (which is subject matter of present case).

P.W.-3 Paramjeet Arora, Head Clerk, S.B.I., main branch, Lucknow proved F.D.Rs nos. 295, 300, 301, 303 and 305 which contained his as well as signatures of Secretary, Sri R.K. Sagar. He also proved the account opening Forms which contained the signature of appellant. He also proved five cheques dated 29.09.1980 issued in favour of the appellant Ram Adhar. In Para 7 witness says that in Thrifts Society money of public was deposited and office bearers of the society used to approach the public for depositing the money in the society and he himself requested Ram Adhar to deposit the money in the Society. In para-9 witness deposed that appellant came to deposit the money alongwith one lady and one Bhagwa clad Baba. Witness said that accused also deposited the money in the State Bank of India apart from the Society. He proved account opening Form which was in the name of Ram Adhar Ram and Rama Devi. Money could have been withdrawn by either or survivor. A request for premature payment was made by Rama Devi and appellant D;ksafd iSlk vkJe dks belong djrk gS. Swami Rudradevanand Saraswati deposited a sum of Rs. 50,000/- etc.etc.

P.W.-4, Rajendra Kumar Sagar, Head Clerk, S.B.I., Secretary of the Society from 1977 to 1982 proved the account opening Form and stated that the payment against the F.D.Rs. was made to Ram Adhar Ram. In cross-examination it is admitted that they used to persuade the public as well to deposit their money in the Society. Collected money was deposited in New Bank of India, Lalbagh. On page-10 witness states that paper no. 5-v/6 is account opening Form for fix deposit and Swami Rudradevanand had deposited Rs. 50,000/- on 21.07.1979 in the Society. This document is Exhibit-Kha-12. F.D.R. was also prepared in the name of Rudradevanand on 21.07.1979 and said Swami Ji had taken payment on 11.08.1980. Similarly, Exhibit Kha-17 and Kha-23 are Forms whereby Swami Rudradevanand deposited Rs. 50,000/-. F.D.R. was prepared in the name of Swami Rudradevanand and payment was also collected by Swami Ji.

P.W.-5 Gopal Singh stated that Rama Devi resided in his Mohalla. She was financially weak and was dependent upon the residents of the locality. Witness stated that Rama Devi told her that she had gone to bank on the persuasion of Ram Adhar Ram.

P.W.-6 Shashi was Clerk-cum-Cashier of the Bank of Madurai in Aminabad, Lucknow. He proved the account opening Form which was signed by Ram Adhar Ram. In cross-examination witness states that a sum of Rs. 50,000/- was deposited on 08.02.1979 and on 24.07.1979 a sum of Rs. 50750/- was withdrawn after closing the account, and then sum of Rs.1,20,000/- was deposited in the name of Swami Rudradevanand Ji. Swami Ji himself had converted the deposited amount in the Monthly Interest Deposit Scheme and account was closed on 26.11.1980. Swami Ji himself used to come Bank for transactions.

P.W-7, Abdul Aziz, Office Assistant in the office of Senior Superintendent Post Offices, Nainital proved the service record of appellant.

P.W.-8, Waquar Ahmad, Sub Post Master, Haidergarh, Barabanki proved the Exhibit-Ka-27 & Ka-28.

P.W.-9, Hari Shanker Mishra, retired Post Master proved the signature of the appellant and papers i.e. Exhibit Ka-21, K-21/1 Ka-22/1, Ka-23/1, ka-25/1 as well as Exhibit Ka-29 to Ka-38.

P.W-10 Sri Dinesh Chandra, Accountant at office of Superintendent Post Offices, Barabanki proved the salary statement of the appellant.

P.W-11 Rama Devi Panditani stated that she is residing in the house of Sardar Harbaksh Singh, Barabanki. She knew Ram Adhar Ram and his money was deposited in her name. She admitted having come to Bank. She also admitted her thumb impression and photo.

P.W.-12 & P.W.-13 proved the seizure memo prepared by R.P. Kaushal, Inspector.

P.W.-14 Bharat Prakash Mehta, Cashier, S.B.I., Hazaratganj, Lucknow proved the account opening Form. He had gone alongwith Ram Adhar Ram for opening the account. He proved the signature of Ram Adhar Ram on various papers. On page-3 he stated that Swami Ji gave Rs.30,000/- to Parmjeet Arora which was deposited in the name of accused and Rama Devi.

P.W.-15 Sri T. Satya Murthi, the officer of the Bank of Madurai Aminabad also proved the account opening Form Exhibit Ka-18. On page-10 he stated that Investigating Officer has not taken his statement and further stated that Mr. Mehta of State Bank of India had come to the bank.

P.W.-16, Chandrakant Dabeer, Tax Collector, Nagar Nigam, Allahabad stated that House No. 92-H/2, Sohabatiyabagh, Allahabad, comprises only two rooms, inhabited by Ram Adhar Ram and 48 rupees were paid as house tax.

P.W.-17, A.M. Pandey, employee of U.P. Electricity Board, Allahabad proved the electricity connection in House No. 92-H/2, Sohabatiyabagh, Allahabad.

P.W.18, Rajkumar, Inspector Income Tax Department, Allahabad proved the search in the house of appellant, Ram Adhar Ram.

P.W.-19, S.S. Chaddha, Manager, Punjab and Sindh Bank, Hardwar proved the signature of introducer, who had introduced Ram Adhar Ram for the opening of saving bank account in the bank.

P.W.-20, Rakesh Kumar Srivastava, Clerk, Nagar Nigam, Allahabad proved that House No. 92-H/2 was recorded in the name of appellant vide order dated 23.11.1982 but firstly this house was in the name of Hanumant son of Jhallar Singh.

P.W.-21, R.P. Kaushal, Deputy S.P., C.B.I. proved the investigation. Chargesheet was submitted on 05.06.1985. He also proved the signature of S.S.Ali, Inspector as deponent was transferred on 04.02.1984. Witness pleaded ignorance about any complaint made by the accused against him. Exhibit 102 shows that appellant had complained against R.P. Kaushal for demanding of Rs. 10,000/-.

P.W.-22 Amar Singh employed in G.E.Q.D., Haiderabad collected and proved that signature (Exhibit Ka-105 etc.) was made by Ram Adhar Ram. This witness was however not cross-examined.

From the above evidence, it is manifest that in the Society accounts were opened. Society also used to persuade public to deposit money. Society in turn issued F.D.Rs. The defence of the appellant is that money belonged to one Swami Rudradevanand Saraswati and Smt. Rama Devi and it was not his money, as he merely deposited the money of Ashram sometime in the joint name and sometime in the name of Swami Ji and after maturity, money was paid back to Swami Ji. Office bearers of the society admitted that society not only initially accepted the money from the public but also persuaded public to deposit the money with them.

The entire case of C.B.I. proceeds upon the premises that the money which was deposited by appellant Ram Adhar Ram was his money, which was in excess of known source. It is true that public servant had to explain the mode by which money came to him. In this case, appellant has not led any evidence in defence but he has come with the categorical case that signatures are his, he had opened the account but it was money of Ashram and the same was given back to Swami Ji.

Submission of learned counsel for the appellant is that appellant may have committed irregularity or misconduct (for which he has been punished) in depositing other's money in his name but he has not indulged in any corruption as he was an employee in the post office from where he had no occasion to earn money.

It is not the case of prosecution nor established by it, that he had earned money by corrupt practice from the unknown sources. His weak financial condition also supports the defence. He has two room house in Allahabad. It is also proved from the prosecution evidence that some amount was indeed paid to Swami ji, therefore, it cannot be said that defence taken by the appellant was absolutely implausible or same is absolutely unfounded.

Submission of learned counsel for the appellant that in India people have faith in spiritual Guru or Swami and whatever they say is followed by disciples has also some substance.

Prosecution has failed to prove that appellant had earned money by illegal means. Albeit it is proved that appellant had money for sometime in his name which was in excess of known source of income but prosecution has failed to track source from which the money came or the place where it went after repayment. Evidence led indicates that money came from Swami Ji and it was paid back to him. It may be pertinent to state that there is no complaint at all on record against appellant Ram Adhar Ram indicating that he had taken money from anybody for discharging his duties as postal Assistant in the postal department. The passbooks recovered from his house did not justify the charge of corruption nor he has any other movable or immovable property which justifies this charge against the appellant.

Section 5(1)(e) of the Act 1947 is being reproduced hereinbelow:

"(e) if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income."

From the above, it appears that the prosecution for proving the case under Section 5(1)(e) has to prove :-

1.The accused is a public servant.

2.Nature and extent of pecuniary source or property which are or has been in his possession (or any person on his behalf).

3.For which there is no satisfactory explanation and that property found to be in possession was disproportionate to his known sources of income.

Question is whether a temporary possession or retention of any property can be treated to be the pecuniary resources or property of the accused ? somebody while going on pilgrimage entrusts the money or valuables to the accused only to be kept till he returns, can it be said that during that period holder of the property became owner also, so as to attract Section 5(1)(e), [Section 13(1)(e) of the Act No. 14 of 1988] ? Mere possession will not be a criminal misconduct unless it is shown that possession could not be satisfactorily explained by the accused. 'Has' connotes 'to own or to hold'. Therefore, there has to be some semblance of title to the property found to be in possession. If accused is able to explain that it was not his property then above provision would not be applicable. This does not mean that accused has to establish beyond doubt that property does not belong to him. What is required is the explanation by the accused for the impugned possession. It is for the prosecution to establish that explanation furnished by the accused is not satisfactory. Unless, prosecution is able to establish that explanation offered by accused is not satisfactory or that he has not explained the possession of the property satisfactorily, presumption of guilt cannot be drawn against him.

In the case of M. Krishna Reddy Vs. State Deputy Superintendent of Police, Hyderabad, AIR 1993 SC 313 in Para 6 Hon'ble Apex Court observed as under :-

"An Analysis of Section 5(1)(e) of the Act, 1947 which corresponds to Section 13(1)(e) of the new Act of 1988 shows that is not the mere acquisition of property that constitutes an offence under the provisions of the Act but it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending the law."(emphasis mine)

It can be concluded that it is for the prosecution to establish that the property actually belongs to the accused and then possession thereof in excess of known sources becomes criminal misconduct punishable under the Act. Mere possession of property does not attract Section 5(1)(e) of the Act. There has to be absence of satisfactory explanation as well.

It is significant to point out that now Section 5(3)'s presumption Clause has been omitted. Section 5(3) enabled the Court to draw presumption only on such proof.

Section 5(3) was in the nature of rule of evidence. It did not create a new offence but merely lays down the rule enabling the Court to raise presumption if accused is not able to satisfactorily explain the possession of pecuniary sources. Section 5(3) having been deleted, presumption having been withdrawn under Section 5(1)(e) of the Act, 1947, on mere presumption conviction cannot be based.

Therefore, accusation of possessing disproportionate assets should have some nexus to the official discharge of duty and in this background it becomes incumbent upon the prosecution to establish apart from other ingredients that accused has not been able to explain satisfactorily such possession or retention of pecuniary resources/property.

In such case the burden of accused to explain satisfactorily is not a burden to discharge beyond reasonable shadow of doubt as is the case with the prosecution where burden of proof is to prove beyond reasonable doubt. This burden can be discharged even by the preponderance of probabilities.

Apart from other ingredients prosecution must prove that property was in his possession. In Para 7 Apex Court in the case of M.K. Reddy (Supra) observes as under :

"Once the above ingredients are satisfactorily established, the offence of criminal misconduct under Section 5(1)(e) is complete, unless the accused is able to account for such resources or property. In other words, only after the prosecution has proved the required ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts to the accused."

Evidently, 'his possession' has to take colour from 'satisfactory accounting' occurring in the provision. This could not mean obviously a temporary possession. Before filing the charge sheet Investigating Officer has to be satisfied that accused a public servant has property disproportionate to known sources of his means for which there is no satisfactory explanation.

I.O. therefore is required to show that explanation submitted by accused is not satisfactory. For this I.O. is duty bound to verify, after thorough investigation, the truthfulness or probability of defence. If he finds that explanation set up by accused is groundless, he can say that it was not satisfactory. Suppose accused says that he inherited property from Grand-ma but fails to give any whereabouts of Grand-ma, it can be said that he did not account for satisfactorily.

It is, thus, first I.O.'s satisfaction after investigation which will lay the foundation for filing the chargesheet. This presupposes the investigation into the explanation or defence set up by accused before him. I.O. cannot be heard to say that satisfaction has to be examined and recorded by court. In fact, first I.O. has to record his opinion regarding explanation/accounting offered by accused. If on verification I.O. finds that source of the property disclosed by accused is genuine, or that certain expenditures alleged by accused were not supported by reliable material, can he still file charge sheet ? Obviously answer is no. Fair investigation has been held to be sin qua non for fair trial guaranteed under Article 20 of the Constitution. [Babubhai Vs. State of Gujrat and others (2010) 12 SCC 254]. Relevant observation is as under :

"45. Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Article 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law."

After chargesheet is filed and evidence is led, it is the Court that examines whether the non-satisfactory explanation recorded by I.O. is supportable from evidence or not.

In my view, once accused offers an explanation for possession of resources or property, I.O. is duty bound to verify the same after thorough investigation before filing charge Sheet under Section 5(1)(e)/13(1)(e) of the Act. Absence of such investigation regarding the 'non-satisfactory accounting' may make the charge groundless.

In Para 72 of judgment given by Apex Court in the case of K. Veeraswami Vs. Union of India and others (1991) 3 SCC 655 it is said :

"But the legal burden of proof placed on the accused is not so onerous as that of the prosecution........

The burden of proof placed on the accused is an evidential burden though not a persuasive burden. The accused however, could discharge that burden of proof "on the balance of probabilities' either from the evidence of prosecution and/or evidence from the defence."

In Para 75, Apex Court permits :

"In the course of the investigation, he may examine the accused. He may seek his clarification and if necessary he may cross check with him about his known source of income and assets possessed by him.

..........He just collects materials from all sides and prepares a report which he files in the court as charge sheet."

Para-94- "If the prosecuting authority after making a suitable enquiry, by taking into account the relevant documents and questioning relevant persons, forms the opinion that the accused cannot satisfactorily account for the accumulation of disproportionate wealth in his possession, the Section 5(1)(e) is attracted." (emphasis supplied)

Thus, although I.O. is not required to give notice to accused alongwith material collected, it is definitely expected of him to collect material from all sides, examine accused, seek clarifications and cross check with him. After doing above exercise, he can form opinion that chargesheet can be filed as explanation submitted by public servant is not satisfactory. This becomes necessary to prevent harassment of public servant on the one hand and save public money and time of court in prosecuting a matter, sure to fail, on the other hand.

To me it appears that before submitting chargesheet under Section 173 of Cr.P.C., I.O. has to satisfy himself about sufficiency of material for prosecuting accused and this satisfaction in the case under Section 5(1)(e) of the Act has to be examined after considering and examining inter alia the explanation, if any, submitted by accused, as well.

In this case, I.O. has not collected material from all sides and did not cross check the information/source provided by appellant. No such thing has been stated by I.O. in his statement. May be Swami Ji would have acknowledged impugned transactions. Trial court committed self same error by non suiting appellant merely because he could not examine Swami Ji in defence and could not establish the source of money to Swami Ji. In fact, trial court appears to have considered the defence but non-suited because of non-examination of Swami Ji. Trial court failed to consider that under Section 5(1)(e) accused could have discharged his burden by preponderance of probability or from prosecution evidence. Such a burden has been placed by trial court in violation of view expressed by Apex Court in the case of V. Rama Swami (Supra).

In view of the above legal position, it is to be seen in the present case whether explanation was satisfactory or not ?

Pass-books show deposit of Rs. 213.85/-, Rs. 5/-, Rs. 340/-, Rs. 440/-, Rs. 50/-, Rs. 15/- etc. Thus, the evidence collected by the prosecution and produced before the court does not show any connection between the amount deposited in the fixed deposit in 1979 and withdrawn in 1980, from his service. Prosecution has failed to bring any evidence on record to show the source from which money has come or the destination to which money has gone. In the absence of any such material, it would be a case of temporary possession of the money. Moreover, prosecution witnesses have also deposed that Swami Rudradevanand Saraswati and one lady Rama Devi had come to bank to deposit the money in the compound account and then payment was also made to Swami Ji.

P.W.-3., Paramjeet Arora, Head Clerk, S.B.I., main branch, Lucknow at Page 10 stated that Rama Devi had come to bank alongwith accused. He also joined them. On Page 14 witness says that :

esjh lkslkbVh esa Lokeh :nznsokuUn ljLorh us 21-07-1979 dks ipkl ipkl gtkj :i;s dh rhu deposits djkbZA

P.W.-4, Rajendra Kumar Sagar, Head Clerk, S.B.I. mentions in Para 8 (page 8) the address of the accused care of Rama Devi, Panditani, 102 Lajpat Nagar, Barabanki. On page 11 witness proves one F.D.R. Exhibit Kha-12 and states that :

bUgsa eSaus 21-07-1979 dks Lokeh :nznsokuUn ljLorh ds i{k esa cuk;k FkkA bl ij mijksDr yksaxksa O;fDr;ksa ds gLrk{kj eSa igpkurk gwWaaA ml ij Exhibit&d&13 Mkyk x;kA bldh maturity date 20-07-1980 FksA

Account opening form ds }kjk Lokeh :nznsokuUn ljLorh us 21-07-1979 dks [email protected]& :i;s lkslkbVh esa fix deposit ds fy, tek fd;k FkkA mlesa yky esa f?kjk gqvk endorsement esjh gkFk dk gS vkSj eksgj ds mij nLr[kr diwj lkgc ds gSaA ist&12A

On Page 15 witness specifically says that :

tc tc eqfYte jke vk/kkj :i;k tek djus vkrk Fkk rks mlds lkFk ;gh Lokeh th vkSj ,d ysMh Hkh lkFk esa vkrh FkhA :i;k dHkh Lokeh th vius ikl ls fudky dj tek djrs Fks vkSj dHkh ysMh fudky dj nsrh FkhA eqfYte us Hkh tc :i;k lkslkbVh esa tek fd;k Fkk rks lkFk esa ;gh Lokeh th o ysMh lkFk esa vkrs Fks rks :i;s dh basket ;k rks Lokeh th ds ikl gksrh Fkh ;k lady ds ikl gksrh FkhA

-----------------------mijksDr rhuks ,Q0Mh0vkj0 ds isesaV ;gh Lokeh th ys x;s FksA

P.W.-14, Bharat Prakash Mehta, Cashier, S.B.I., Hazaratganj, Lucknow on page 3 states that :

tc ge yksx cSad vkQ enqjk igqWaps rks ogkW ,d Lokeh th igys ls ekStwn FksA ;g rhl gtkj :i;s Lokeh th us vius ikl ls fudkydj ijethr vjksjk dks fn;s vkSj ogh :i;k eqfYte vkSj bl vkSjr ds uke ls tek gqvkA Exhibit&d&18 esa eqfYte dk irk o jke nsoh dk la;qDr irk] vHk; lU;kl vkJe okjkulh fy[kk gSA eSus Lokeh th ls dgk fd vxj ;g :i;k bl cSad esa tek fd;k tkrk gS rks esjh cgu ds appointment esa effective gksxkA Lokeh th us ;g Hkh crk;k Fkk fd muds ;w0 ih0 esa dbZ eB gSa vkSj lHkh eBksa ds Vsªtjj eqfYte gSaA

On Page -4 in cross examination by the prosecution, witness says :

eSaus tks vkt cSad esa Lokeh th ds ekStwn gksus dh ckr dgh gS og vkt vnkyr essa igyh ckj dgh gS D;ksafd blls igys fdlh us iwWNk gh ughA lh0ch0vkbZ0 baLisDVj us eq>ls iwWNrkN dh FkhA muls eSaus ;g ugh crk;k Fkk fd Lokeh th cSad esa feys Fks vkSj mUgksaus :i;k fudkydj fn;k Fkk D;ksafd ;g ckr mUgksaus eq>ls iwNh ugha FkhA eSaus mudks ;g c;ku fn;k Fkk fd %"Sri Ram Adhar Ram desired to deposit his money in the Bank in the form of F.D.R."

P.W.-15 Sri T. Satya Murthi, the officer of the Bank of Madura Aminabad on page 9 states that :

bu rhuksa principal amount ds total ,d yk[k chl gtkj ls ,d turn deposit Sixty-three months FkkA Lokeh :nznsokuUn ljLorh ds uke ls [kqy x;kA

In the statement of accused before charge, it was stated by the appellant that money did not belong to him but it belonged to Math/Ashram which was got deposited by Swami Rudradevanand Saraswati and lady through him. He specifically denied having received any money. On page 4 of the statement he stated that :

;g lkjk :i;k Lokeh th dk Fkk tks mUgkasus fudyok dj ys fy;kA mUgha ds funsZ'k ij eSaus gLrk{kj fd, FksA

---------------------------:i;k Lokeh th dk Fkk mUgksaus ckn esa vius uke :i;s 50][email protected]&transfer djk fy;k FkkA

Similar statement has been made by the appellant under Section 313 Cr.P.C. on 18.05.1999 wherein he stated that:

;g lkjk :i;k Lokeh th dk FkkA tks esajs mij xyr Fkksik tk jgk gSA eSa funksZ"k gwWaA jkek nsoh vkJe esa jgrh Fkh og cgqr o`) efgyk FkhaA mUgsa xq:ekrk dgrs Fks eSa Lokeh th dk fo"oklikrz Fkk esjs mij os Hkjkslk djrs FksA eSa Lokehth dk f'k"; FkkA os eqa>s iqrz leku ekurs Fks ;s lkjk :i;k mUgha dk Fkk tks viuh lgwfy;r ds fy, esajs uke os tek djok;s FksA os ,dkUrfiz; fl) riLoh egkiq:"k FksA yksaxksa ds lEidZ esa cgqr de jgrs FksA ge yksx muds HkDr Fks] os v/;kRe ds vykok O;FkZ dh ckrphr ls cprs Fks blfy, ;g dke eq>s lkSais FksA :i;k tek djrs o fudkyrs le; os ekStwn jgrs Fks esjs lkFkA

From the above, it is apparent that since beginning it has been the case of the appellant that he was disciple of Swami Rudradevanand Saraswati who trusted him and carried on all the financial transaction through him. In the bank whenever money was to be withdrawn Swami Ji received his money after withdrawal. This defence finds support from the prosecution witnesses who have admitted having seen Swami Ji in the bank, having opened account in the name of Swami Rudradevanand Saraswati, having prepared the F.D.Rs. and transferred/paid money to Swami Ji. In the light of this evidence coupled with the fact that there was no evidence suggesting that appellant earned money through corrupt means or he retained money after withdrawal and invested the same in movable or immovable property, it can be safely said that appellant had satisfactorily explained the possession. It might have been misconduct under the service rules or improper on his part, but it cannot be said to be the misconduct as defined under Section 5 in respect of discharge of duties.

Trial court has non-suited the appellant on the ground that he did not produce Swami Rudradevanand Saraswati as defence witness. In fact, this burden lay with the prosecution as accused appellant had already taken his specific defence that money belonged to Swami Ji. It was for the prosecution to have tracked the sources and destination of the money. This could have been easily done by interrogating Swami Ji. Thus, withholding the evidence of Swami Rudradevanand Saraswati could not be used against the appellant. In any case, court itself could have summoned Swami Ji to clarify the position. Trial court seems to have worked under the impression that burden on accused is as grave as that of prosecution.

Similarly, the trial court has failed to consider the evidence of the prosecution wherein it was admitted that money was paid by Swami Ji and payment was also made to Swami Ji. The observation in the judgment that ;g lkfcr ugha gS fd Lokeh :nznsokuUn ljLorh ds ikl og iSlk dgkWa ls vk;k is absolutely uncalled for as Swami Ji was not on trial.

In view of the above, it was not possible for the appellant to have proved, a negative thing Investigating Agency who has vast resources could have and should have done it. Large money coming from unknown sources was sufficient to raise suspicion regarding source. No such, effort was made by the agency. At least it could have ensured that money is not coming from banned organizations, terrorist outfit or through hawala and was not going to be used for unlawful purpose.

Complaint made by appellant accusing I.O. Sri R.P. Kaushal of demanding Rs.10,000/- as bribe (Exhibit-102), therefore needs no discussion.

Since, there is no evidence to show that money had come to appellant by any corrupt or foul means or utilized by the appellant it remained a case of temporary possession of money which according to appellant belonged to Swami Rudradevanand Saraswati. In the absence of any other evidence, temporary possession of money, even if money was deposited in bank cannot be said to be his money (in his possession), so as to attract the mischief of Section 5(1)(e) of the Act. Accused had discharged his burden but prosecution has failed to establish that the explanation submitted by the accused was not satisfactory. Thus, benefit must go to appellant. In the absence of such a proof, it was not open for the court to have found appellant guilty.

Trial court too did not appear to be convinced with the prosecution case and recorded conviction by drawing presumption as is evident from the finding recorded in Para 43 of the judgment as under :

"vr% esajs fopkj ls vfHk;qDr dks mi;qZDr /kujkf'k dk Lokeh ekuk tk;sxk vkSj ;g ekuk tk;sxk fd og /kujkf'k mlds dCts esa jghA vr% esajs fopkj ls vfHk;qDr ds fo}ku vf/koDrk ds }kjk mi;qZDr ftl ekeys dk voyEc fy;k x;k gS mlls rF; fHkUu gksus ds dkj.k] mUgsa dksbZ ykHk izkIr ugha gksrk gS D;ksafd vfHk;qDr us U;k;ky; dk lUrks"ktud --------------------------------------vr% ;g ekuk tk;sxk fd vfHk;qDr us vius Kkr vk; ds Jksr ls vf/kd /kujkf'k dks dnkpj.k djrs gq, izkIr fd;kA esajs fopkj ls Qyr% ;g ekuk tk;sxk fd yxHkx :0 3]40][email protected]& ;k mlds lehi /kujkf'k dks mlus dnkpj.k djrs gq, izkIr fd;k] D;ksafd mi;qZDr 40 gtkj :i;s dh /kujkf'k esa 20 gtkj :i;s dh /kujkf'k vf/kd ls vf/kd mldh cpr ekuh tk ldrh gSA"

Presumption available under Section 5(3) of the Act, 1947 having been withdrawn by the legislature long back, it was not open to the trial court to have convicted on the basis of presumption. Consequently, conviction based on mere presumption cannot be sustained by this Court.

Appeal is allowed.

Conviction and sentence as well as judgment and order dated 03.07.1999 passed by Special Judge, Anti-Corruption (West), U.P., Lucknow are set aside.

Lower court record be sent back to trial court for disposal in accordance with law.

Appellant is on bail. He need not surrender.

Sureties are discharged.

Order Date :- 31/05/2012

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