Abhimanyu Singh [After Midday ... vs State Of U.P.Throgh Principal ...
2015 Latest Caselaw 852 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Judgment Reserved On 24.03.2015
 
  						Judgment Delivered on 08.06.2015            
 
Court No. - 12
 

 
Case :- U/S 482/378/407 No. - 250 of 2006
 

 
Applicant :- Abhimanyu Singh
 
Opposite Party :- State Of U.P.Throgh Principal Secy,Home Civil Sectt,Lko.
 
Counsel for Applicant :- Manohar Singh,K K Singh,Nisar Ahmad,Rakesh Kumar Singh,Santosh Kumar Singh,Vikas Vikram Singh
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Shashi Kant,J.

1. Heard Sri Vikas Vikram Singh, learned counsel for applicant and learned A.G.A. for the State of U.P.

2. This application under Section 482 Criminal Procedure Code, 1973 (in short 'Cr.P.C.') has been filed for quashing the Charge Sheet No. 2/05 dated 17.10.2005 and Summoning Order dated 09.11.2005, passed by Special Judge, Prevention of Corruption Act, Lucknow in Criminal Case No. 36 of 2005.

3. Brief facts as transpire from the record are as under :

3.1 A First Information Report (in short 'FIR) (Annexure No. 1 to the application), was lodged on 30.09.2002, as Case Crime No. 526/02, under Section 13(1)E read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'Act, 1988'), at Police Station - Gazipur, District - Lucknow against the applicant on the allegation that he has accumulated more wealth than his known sources of income.

3.2 After investigation, Charge Sheet dated 17.10.2005 (Annexure No. 2 to the application), was submitted in the court of Special Judge, Prevention of Corruption Act, Lucknow, who took cognizance of the same and vide order dated 09.11.2005 (Annexure No. 3), summoned the applicant under Section 13(1)E read with Section 13(2) of the Act, 1988.

3.3 Being aggrieved by the Charge Sheet and Summoning Order, this application under Section 482 Cr.P.C. has been filed, by the applicant for grant of relief as stated above.

4. I have considered the rival submissions made by the learned counsel for parties and perused the record.

5. Learned counsel for petitioner urged that :

5.1 Above FIR was lodged against applicant under instructions given by Inspector General, Corruption, pursuant to Government Letter dated 21.09.2009 and investigation commenced on 30.09.2002.

5.2 No complaint regarding corruption was being made by any private party against the applicant. The enquiry was conducted malafidely and charge sheet was filed against the applicant under pressure of some hostile authorities, though there is no evidence against him.

5.3 The applicant joined his service on 24.08.1981, during his service period he held various important posts as Station Officer at Police Stations and during his posting on such posts, there was no complaint of corruption against him, except the present FIR.

5.4 In the FIR, allegations of corruption relate for the period 1981 to May, 1999, but during investigation this period was extended up to October, 2005 i.e. when investigation concluded.

5.5 The Investigating Officer has committed several irregularities and has taken into consideration various improbable facts while calculating income of applicant. Income of applicant has been calculated in a manner that property of applicant could be shown to be more than his income.

5.6 The facts of Fixed Deposit, amount deposited in applicant's saving account, ownership of house, income from agriculture etc. are the assets generally found in every joint Hindu Family and the same are being calculated arbitrarily and added in the applicant's income to aggravate the same. Neither there is any material on record nor any cogent evidence has been collected by the Investigating Officer to proceed further in the case.

5.7 Neither the Investigating Officer nor the learned Court below have considered the facts in their correct perspective and have proceeded wrongly.

5.8 The impugned charge sheet is marred with conjectures and surmises and is liable to be quashed.

6. Controverting the above arguments, learned A.G.A., representing the State of U.P. has argued that FIR was lodged on the direction given by I.G., Corruption vide letter dated 21.09.2002 and charge sheet has also been filed after due and proper investigation of the case. The court below has rightly taken cognizance of the matter and summoned the applicant.

7. In reply, learned counsel for applicant has reiterated his earlier submissions and placed reliance on the Apex Court's decision in Krishnanand Agnihotri Vs. The State of Madhya Pradesh [(1977) 1 SCC 816] and Ashok Tshering Bhutia Vs. State of Sikkim [(2011) 4 SCC 402].

8. The Hon'ble Apex Court in paragraph no. 33 of the judgment in Krishnanand Agnihotri (Supra) has held as under :

"33. ........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 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........"

9. Further, the Apex Court in paragraph no. 48 of the judgment in the case of Ashok Tshering Bhutia (Supra), has said as under :

"48. In view of above, at the most a sum of Rs.2,71,613.69 remained unexplained. The appellant entered into service in 1972 and there is no break-up so far as assets and expenditures, etc. are concerned in the charge-sheet though the check period covered both the Acts i.e. the PC Acts, 1947 or 1988. Even if the said amount is spread over the period from 1987 to 1996, the alleged unexplained income remains merely a marginal/paltry sum which any government employee can save every year."

10. Alongwith the application following documentary evidence have been filed by the applicant :-

(i) True copy of the F.I.R. 30.09.2002 (Annexure No. 1)

(ii) Certified copy of the Charge Sheet dated 17.10.2005 (Annexure No. 2)

(iii) True copy of Summoning Order dated 09.11.2005. (Annexure No. 3)

(iv) True copy of report submitted by Investigating Officer (Annexure No. 4)

(v) True copy of written intimation given by applicant to Superintendent of Police, Gonda. (Annexure No. 5)

(vi) True copy of bank statement of Savings Bank account of applicant for the period 01.03.1999 to 24.05.1999. (Annexure No. 6).

(vii) Photo copy of the Land Holding Consolidation Form No. 23. (Annexure No. 7).

11. The opposite party no. 1 has filed following documentary evidence :

(i) True copy of letter no. lh,&,Mhtk&fu0&12 @ 07 ¼,lhvks½ dated 27th August, 2007 (Annexure No. CA-1 to the counter affidavit).

12. Following questions crop up before this Court for proper disposal of this application :

(1) Whether charge sheet is bad due to not obtaining sanction for prosecution of applicant from the competent authority?

(2) Whether charge sheet and summoning order dated 09.11.2005, based on above charge sheet are sustainable in the eyes of law?

13. It is submitted on behalf of applicant that prior to filing of charge sheet no sanction from the competent authority was obtained and charge sheet has been filed against him without proper sanction for prosecution of the applicant, by the competent authority.

14. It is stated in paragraph no. 5 of the counter affidavit of Smt. Sunita Singh, dated 22.11.2013, that higher authorities of the department considered the enquiry report of Anti Corruption Bureau and after due consideration of that, F.I.R. was lodged against applicant and on the basis of oral and documentary evidence collected by the deponent, on 17.10.2005, after approval of the Anti Corruption Bureau and sanction for prosecution by D.I.G., Lucknow Range, Lucknow, charge sheet was filed against the applicant in the Court of Special Judge, Anti Corruption on 09.11.2005 and cognizance of the same was also taken by the Court on the basis of above charge sheet.

15. In paragraph no. 9 of Rejoinder Affidavit filed against above counter affidavit, contents of paragraph no. 5 of counter affidavit are denied as wrong, false and incorrect and in its reply contents of paragraph no. 3 of the application are reiterated to be true and correct.

16. This Court is of the view that with regard to specific averment for obtaining sanction for prosecution of applicant and grant of sanction by D.I.G., Lucknow Range, Lucknow, general and vague denial of the applicant in paragraph no. 9 of his affidavit and reiteration of contents of paragraph no. 3 of his application as true and correct is of no consequence and submission of applicant that charge sheet is filed against him without proper sanction is not tenable. Therefore, question no. 1 is answered in negative and against the applicant.

Discussion Question no. 2.

17. In the F.I.R. (Annexure No. 1 to the application), following income and expenditure have been shown:

dze la0

vk;

dze la0

O;;

osru ls izkIr :0 8]43]172-55

ikfjokfjd O;; :04]21]586-27 osru dk 50izfr'kr

euh cSd ikfylh ls :036]000-00

Hkou fdLrksa ij :021]100-00

onhZ HkRrk :0 1000-00

vfrfjDr fuekZ.k ij :01]66]500-00

lfClMh eksVj lkbfdy :02]500-00

nwjHkk"k fcy :0 4]918-00

,u ,l lh ls :0 20150-55

,u ,l lh ij :0 30]000-00

;ksx :09]82]822-55

cpr [kkrs esa vo'ks"k :0 68]853-00

okf'kax e'khu :0 10]500-00

f'k{kk ij :0 53]000-00

nks dwyj :0 2]000-00

ia[kksa ij :0 3]200-00

jaxhu Vh0oh0 :0 8]000-00

Vsi ij :0 500-00

onhZ ij :02]000-00

,y0vkbZ0lh0 ij :0 96]336-00

eksVj lkbfdy ij :0 5]000-00

eksVj lkbfdy dh ejEer @ isVªksy ij :0 1]49]000-00

fo|qr fcyksa ij :0 65]500-00

euksjatu ij :0 5]400-00

dSejk ij :0 400-00

fpfdRlk ij :0 20]000-00

fQzt ij :0 8]000-00

lksQk lsV ij :0 10]000-00

vyekjh ij :0 2]000-00

;ksx :0 11]53]793-27

On the basis of differences between the expenditure and income having disproportionate assets of Rs. 1,70,970.72P. against the applicant is shown.

18. After investigation, the Investigating Officer has submitted charge sheet dated 17.10.2005 (Annexure No. 2 to the application), in which he has given details of income and expenditure of the applicant as follows :

On the basis of above details of income and expenditure and difference between them following report is submitted in coloumn 5 of the charge sheet.

Þ------------rekeh r¶rh'k ls vkjksih dh psd vof/k esa fn0 24-8-81 ls ebZ 1999 rd dqy vk; :0 9]18]858-55 iSlk rFkk mlh vof/k esa fofHkUu ifjlEifRr;ksa ij O;; :0 10]34]129-82 fd;k x;k gS tks vk; ds lkis{k :i;k 1]15]271-27 iSlk O;; vf/kd gS ftldk vkjksih vfHk0&&&&& dksbZ lek;kstu ugh dj ldkA vr% vfHk;qDr ds fo:) /kkjk 13¼1½¼bZ½ Hkz0 fu0 vkfn dk izekf.kr gSA ------------ß

ipkZ la[;k%& 22

fnukad %& 23-03-04

dze la0

vk;

dze la0

O;;

osru la izkIr :0 8]59]208-55

Hkou ds dz; ij fdLrksa ds :i esa :01]13]431-55

euh cSd ikfylh ls izkIr :0 36]000-00

mDr Hkou esa vfrfjDr fuekZ.k dk;Z :0 1]66]500-00

onhZ HkRrk :0 1]000-00

,u0,l0lh0 ij :0 30]000-00

eksVj lkbfdy lfClMh :0 2500-00

okflax e'khu ds dz; ij :010]500-00

,u0,l0lh0 ls :020150-00

,y0vkbZ0lh0 ij :096]181-00

dqy vk; :0 9]18]858-55

eksVj lkbfdy ij O;; :05]000-00

Vh0oh0 ds dz; ij :08]000-00

cpr [kkrk esa vo'ks"k :084]853-00

,Q0Mh0vkj0 dz; djus ij :090]040-00

ikfjokfjd Hkj.k iks"k.k ij osru dk [email protected] :04]29]604-00

dqy ;ksx :010]34]129-82

As such, Investigating Officer has drawn conclusion against the applicant for having disproportionate and unexplained expenditure of Rs. 1,15,271.27p.

19. Against the above charge sheet, the applicant has raised grievance that the Investigating Officer has committed gross illegality and irregularity in calculating his income. He has calculated income and expenditure of the applicant with intention to show his expenditure greater in comparison to his income. In doing so he has calculated his expenditure 1/2 of his income, which is in violation of Vigilance Manual No. ifj0 la0 & l0v0 @ vuq&2&fel&27 @ 05] fn0 tqykbZ 11] 2005] pSd fyLV ¼ifjlEifRr lEcU/kh tkapksa gsrq fu/kkZfjr ekud½] issued by U.P. Vigilance Department (Annexure No. SA-2 to the supplementary affidavit). Relevant part of which reads as follows :

Þ¼n½ & ikfjokfjd Hkj.k iks"k.k ij O;; dh x.kuk gsrq ekud

Hkkjr ljdkj dsUnzh; vUos"k.k C;wjks ikfylh ,.M dks&vkfMZus'ku fMohtu ukFkZ Cykd ubZ fnYyh ds yksd lsodksa dh lEink ds vkdyu dh foospuk gsrq izfdz;k ds ekudhdj.k ds mn~ns'; ls fuxZr ifji= la[;k & 21 @ 40 @ 99&ih Mh ¼ih Vh½ fn0 29-11-01 esa fufgr funsZ'kksa ds vuqlkj vkjksfir vf/kdkjh ds ikfjokfjd Hkj.k iks"k.k dh lR;kiu u gksus ;ksX; enksa] tSls fd jlksbZ [kpZ] x`gLFkh rFkk oL= bR;kfn ij dqy O;;] ldy ¼xzkl½ osru ls vnk fd;k x;k vk;dj ?kVkdj tks /kujkf'k cprh gS] dk ,d frgkbZ eku fy;k tk;A ldy xzkl osru dh x.kuk djus esa dsoy osru dks gh vk/kkj cuk;k tk; rFkk bl osru esa chp&chp esa gqbZ osru o`f);ksa ds QyLo:i izkIr gq;s ,fj;j] chp&chp esa c 20. In this regard, it is submitted by the learned A.G.A. that above direction for calculation of income was issued vide letter No. lh,&,Mhth&fu0&12 @ 07 ¼,lhvks0½ fnukad vxLr 27] 2007 (Annexure No. SCA-2 to supplementary counter affidavit). This argument of learned A.G.A. is not sustainable being contrary to the material available on record (Annexure No. 3 to the application), which was issued on 09.11.2005 and charge sheet in this case has been filed in the Court on 17.10.2005. As such, annexure no. 3 was issued earlier to filing of charge sheet and expenditure was required to be calculated as per direction no. ¼n½ of the Vigilance Manual (Annexure No. SA-2 to the supplementary affidavit). Not only this, according to directions contained in the above Manual certain items were also expected to be excluded from calculation of expenditure from his income. Items of expenditure shown in the charge sheet by the Investigating Officer clearly show that he has calculated the expenditure at the rate of 50% of the total income, which is contrary to the directions and guidelines given in Annexure No. SA-2 to the supplementary affidavit, and if expenditure was calculated on the direction given in Annexure No. SA-2 to the supplementary affidavit, then figure of expenditure of applicant came to Rs.2,86,402.67 instead of Rs.4,29,604.00, as has been shown in the charge sheet.

21. It is further contended on behalf of applicant that cash deposit in his bank account is shown in the charge sheet as Rs.84,853/-, while in the period under consideration total deposit in the account was Rs.68,853/-, as such, Rs.16,000/- has been shown in excess in the charge sheet. In support of this contention applicant has filed bank statement of his Bank Account No. 108030 (for the period 01.03.1999 to 24.05.1999) Annexure no. 5 to the compilation which clearly indicate that total deposit in his Bank Account no. 108030, on the date was Rs.68,853.00, by which, it is established that on 24.05.1999, in the Bank Account no. 108030 of the applicant the balance available was Rs.68,853/- and not Rs.84,853/- as has been mentioned in the charge sheet and as such excess amount of Rs.16,000/- is shown to be deposited in the bank account of the applicant.

22. It is also contended on behalf of applicant that the Investigating Officer has wrongly calculated the maturity amount of FDR at Rs.90,040/-, while it was expected to be calculated and shown only the initial amount deposited, which was Rs.50,000/- and has been given by his father on his retirement for marriage of applicant's daughter. Applicant has also informed to S.P., Gonda vide letter dated 09.03.1992 (Annexure No. 5 to the application), in that regard During investigation, applicant has also given a copy of Annexure No. 5, to the Investigating Officer.

23. In reply to the above arguments it is submitted by learned A.G.A. that on verification that application was not found in the Office record of S.P., Gonda.

24. It is not the case of State respondents that above application and the endorsement made on it is forged and that a false document has been prepared by the applicant in this regard.

25. In these circumstances, mere non availability of the said application in the Office record of Superintendent of Police, Gonda is of no consequence and it may be presumed in the facts and circumstances of the case that receipt of Rs.50,000/- from his father for marriage of applicant's daughter was given to the Superintendent of Police, Gonda and that information cannot be said to be not given to the S.P., Gonda only on the basis of non availability of that in the office record of S.P., Gonda. Otherwise also, the Investigating Officer is expected to take into consideration only the initial amount i.e. Rs.50,000/-, and not the maturity amount of Rs.90,040/-.

26. Now, if the expenditure of applicant is calculated in the light of above findings, then his income may be enhanced in comparison to that expenditure and expenditure will be reduced, as per following chart :

Income

Expenditure

Head

Amount

Head

Amount

Amount received from Salary

859208.55

Instalment for purchase of House

113431.55

Amount received from Money Back Policy

36000

Amount spent on additional construction of house

166500

Uniform Allowance

N.S.C.

30000

Subsidy on Motorcycle

Purchase of Washing Machine

10500

N.S.C.

20150

L.I.C.

96181

Total

9,18,858.55

Expenses on Motorcycle

Expenses on purchase of T.V.

Balance of Saving Bank Account

68853

Purchase of FDR

50000

Family Expenses : 1/3 of salary

2,86,402.67

Total

8,34,868.22

27. It is clear from the above chart showing income and expenditure that income of applicant comes to Rs.9,18,858.55 and expenditure comes to Rs.8,34,868.22. While in the charge sheet, charge against the applicant is only of having unexplained expenditure of Rs.1,15,271.27p., which is lesser than the income of the applicant shown above, and when the above calculated income of the applicant is on the higher side in comparison to his expenditure, there is no question of raising dispute regarding disproportionate assets in comparison to known source of applicant's income.

28. In view of the discussion made above and also in view of the well settled proposition of law laid down by Hon'ble Apex Court, Question No. 2 is answered in negative i.e. in favour of applicant.

29. In the facts and circumstances of the case as well as in view of discussion made above, this application deserves to be allowed.

30. Accordingly, this application is allowed. The impugned Charge Sheet dated 17.10.2005 (Annexure No. 2 to the application) as well as Summoning Order dated 09.11.2005 (Annexure No. 3 to the application) are hereby quashed.

31. No order as to costs.

Order Date :- 08.06.2015

A. Verma