Bombay High Court
Rajendra Jonko vs The Superintendent Of on 25 November, 2011
Bench: R. C. Chavan
1 APEAL-270.01
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL APPEAL NO.270 OF 2001
Rajendra Jonko,
residing at Flat No.101,
17/D MHADA Customs Colony,
Adi S. Marg, Powai,
Mumbai-400 076.
ig .... Appellant
- Versus -
1. The Superintendent of
Police, Central Bureau
of Investigation,
Anti Corruption Bureau,
Tanna House, Nathalal
Parekh Marg, Coloba,
Mumbai-400 005.
2. The State of Maharashtra .... Respondents
S/Shri R.M. Agarwal, Senior Counsel with
Prakash Naik for the Appellant.
Shri Milind Sawant, Public Prosecutor
for Respondent No.1-CBI.
Ms P.P. Bhosale, Addl. Public Prosecutor,
for Respondent No.2-State.
::: Downloaded on - 09/06/2013 17:57:04 :::
2 APEAL-270.01
CORAM : R.C. CHAVAN, J.
RESERVED ON : SEPTEMBER 29, 2011
PRONOUNCED ON: NOVEMBER 25, 2011
JUDGMENT:
1. This appeal is directed against the
conviction of the appellant, an Assistant
Collector of
ig Central Excise, for offence
punishable under Section 12(2) r/w Section
13(1)(e) of the Prevention of Corruption Act,
1988 (for short, the PC Act, 1988 ) and
sentence of RI for 4 years with fine of
`5,000/- or in default further imprisonment for
6 months inflicted by the learned Special
Judge, Mumbai.
2. It was alleged that the appellant had
received towards pay and allowances from
15-11-1979 to 12-11-1987 a sum of `1,40,034.45,
interest from Banks amounting to `57,672.51 and
had borrowed `65,600/- from State Bank of
India. He thus had amount of `2,63,306.96
available to him. His expenses for the period
were quantified at `82,207.04 and thus was
likely to have saving to the tune of
`1,81,099.32. But as on 12-11-1987, the
3 APEAL-270.01
appellant was possessed of assets worth
`6,42,882.42/- and thus the assets were
disproportionate to the tune of `4,61,783.10 to
his known sources of income. These conclusions
were reached upon investigation which commenced
on receipt of information by PI Prabhakar
Shinde. On completion of investigation, papers
were sent to appropriate authority seeking
sanction to prosecute the appellant. Upon
receipt
before
of
the
ig sanction,
Special
charge-sheet
Court on
was
5-3-1990
filed
for
offence punishable under Section 5(2) r/w
Section 5(1)(e) of the Prevention of Corruption
Act, 1947 (for short, the PC Act, 1947 ) .
3. The appellant pleaded not guilty to
the charge of offence punishable under Section
5(2) r/w Section 5(1)(e) of the PC Act, 1947 on
28-11-1997. Since the appellant pleaded not
guilty, he was put on trial at which
prosecution examined in all 31 witnesses in its
attempt to bring home guilt of the accused. The
defence of the accused was that assets standing
in the names of his wife Nirmala, sisters Rani
and Munni and father were their own asset. He
did not know if they had any independent source
of income or not. The amounts were given by his
father. He had not taken loan of `65,600/- from
4 APEAL-270.01
State Bank and had not purchased cars or house.
He also filed a detailed written statement
explaining his assets. After considering the
evidence tendered, the learned Special Judge
held that even if income as suggested by the
appellant was taken into consideration, the
assets were disproportionate by `3,86,570/- to
the income of the appellant and therefore
convicted and sentenced the appellant as
mentioned
earlier.
appellant has preferred this appeal.
Aggrieved thereby the
4. The appeal was first heard and allowed
by Judgment dated 30-6-2004 by Hon'ble Shri
Justice D.G. Deshpande. The State challenged
the order before the Supreme Court. By its
Judgment dated 25-9-2006 the Supreme Court set
aside the Judgment of this Court and directed
that this Court shall decide the appeal on
merits and if this Court comes to the
conclusion that case for upholding the
conviction is made out, this Court shall
correct the error of the trial Court in handing
down conviction under Section 13 of the PC Act,
1988 and shall convict the appellant of offence
punishable under Section 5(2) r/w Section 5(1)
(e) of the PC Act, 1947. This is why the appeal
was reheard.
5 APEAL-270.01
5. I have heard the learned counsel for
the appellant and the learned PP for the CBI.
With the help of both the learned counsel, I
have gone through the evidence. In respect of
assets attributed to the appellant, the
evidence collected is as under:-
Sr. Nature of Asset In the Names Value Rs. Evidence Remarks
No. ig of Ps
1. Debentures of Tata Munni+Nirmala 30000.00 PW-2
Chemicals +Rani+Nirmala Yashodhara
Exs.23, 24
2. FDRs of Mazgaon Dock ? 10000.00 PW-12
Selvaraj M
Ex.80
3. FDRs of Stock 2FDs Nirmala, 12000.00 PW-7 3
Exchange Rani, Munni Coutinho persons
Exs.49, 50 each
4. FDRs with Hindustan Rani+Nirmala 10000.00 PW-13
Construction Co. Munni+Nirmala Kavita
Ltd. Exs.82, 83
5. Debentures with Rani & Nirmala 15000.00 PW-11 3x10x5
Mahindra & Mahindra Raghvachar
i
Exs.64 to
68, 69, 73
6. CDRs of Indian Oil Nirmala 20000.00 PW-14 (only
+Appellant, Vidyadhar 15000/-
Munni+Nirmala, Exs.86 to ?)
6 APEAL-270.01
7. FDRs of J.K. Nirmala & 12000.00 PW-1 Invest-
Synthetic Rajendra Jonko Mahesh ment by
Shah cheque.
Exs.17 to Source
21 not
traced.
8. FDRs with Hindustan Munni, Rani, 20000.00 PW-6 4 FDs
Petroleum Nirmala, Salunke each in
Gunjan Exs.44-47 name of
(daughter) three
persons
Nirmala
common
in all
FDs.
9. Debentures of Birla
Jute Industries
Gunjan+Nirmala
Munni+Nirmala
30000.00 PW-8
Gajanan
Nirmala+Rani Agrawal
Rani+Nirmala Exs.
99-102.
10. FDRs/CTD Premier 20000.00 PW-3 Roy
Automobiles ? D Souza
Ex.26
11. Debentures Indian Nirmala+Munni 30000.00 PW-10 75 each
Hotels Co. Munni+Nirmala Prabhakar pair of
Gunjan+Nirmala Phatak holders
Rani+Nirmala Exs.59-62
12. FDRs of TELCO Nirmala, 32000.00 PW-5 Navin 6 FDs
Rajendra, Kumar Exs. each in
Rani, Munni 36 to 42 Joint
name of
two
persons
each
13. Debentures of Nirmala, Rani, 4000.00 PW-9 10 each
Reliance Ltd. Gunjan, Padmakar
Jonko Exs.54-57
7 APEAL-270.01
14. Bank balance Rajendra, 34644.40 PW-4
Nirmala, Gopalan
Gunjan Aiyar Exs.
28-32.
PW-21
Hiralal
Jain Ex.
PW-22
Ramchandra
Exs.
110-112.
PW-23
Indrakant
ig Canara
Bank Exs.
114-114A.
PW-26
Anant
Maliar
Central
Bank Ex.
15. Two Cars Nirmala 180038.00 PW-15 Loans
Munni Madan
Mairal
Exs.96,
PW-19
Rajan
Masukar
Ex.104.
PW-20
Sanjay
Chavan Ex.
16. National Savings 82000.00 PW-15
Cetificate Madan
Mairal Ex.
PW-16
Narayan
8 APEAL-270.01
17. House at 49500.00 PW-22 Ram-
Chakradharpur chandra
Ex.
133-136,
SBI.
PW-25 K.C.
Mishra
Exs.122,
123 SBI.
PW-28
Sujit
Moitra Ex.
132 SBI.
18. Loan to Akundi ig 50500.00 - -
Sundaramma
19. Telephone Deposit 1200.00
642882.42
20. Gold earrings Nirmal Jonko 6844.00 PW-8
32.950 grams Deepak Ex.
In addition to the above witnesses, other
witnesses examined are:
PW-17 Dr. Saifee, the appellant s landlord at
Indore who states that the appellant
paid rent @ Rs.700/- per month to him.
PW-24 Ram Raj Bharati, Under Secretary,
Government of India who proves sanction
to prosecute.
PW-27 Sunil Kumar of Biri Trading Company
about income of the appellant s father
9 APEAL-270.01
(Exhibit-130),
PW-29 PI P.B. Shinde, Investigating Officer.
PW-30 PI Raman Tyagi, Investigating Officer.
6. The learned counsel for the appellant
first submitted that the properties shown in
the names of the appellant's father, wife or
termed as
sisters would have to be excluded from being
the appellant's properties. He
submitted that the charge does not show that
the appellant was alleged to have held those
assets benami. Therefore, according to him,
since the charge does not show that the
properties in the name of his relations were in
fact owned by him, those properties ought to be
excluded and if they are so excluded, the
assets of the appellant are not at all
disproportionate to his known sources of
income. For this purpose, he relied on the
following Judgments-
7. In Jaydayal Poddar (Deceased) through
L.Rs. and another v. Mst. Bibi Hazra and
others, reported in AIR 1974 SC 171, the
Supreme Court was considering the question of
nature of onus and proof in respect of benami
10 APEAL-270.01
transactions in the context of provisions of
Section 54 of the Transfer of Property Act. In
para 6 of the Judgment, the Court held as
under:
.... The essence of a benami is the
intention of the party or parties
concerned; and not unoften such
intention is shrouded in a thick
veil which cannot be easily pierced
through. But such difficulties do
not relieve the person asserting the
transaction to be benami of any part
of the serious onus that rests on
him; nor justify the acceptance of
mere conjectures or surmises, as a
substitute for proof. The reason is
that a deed is a solemn document
prepared and executed after
considerable deliberation, and the
person expressly shown as the
purchaser in the deed, starts with
the initial presumption in his
favour that the apparent state of
affairs is the real state of
affairs. Though the question,
whether a particular sale is benami
or not, is largely one of fact, and
for determining this question, no
absolute formulae or acid test,
uniformly applicable in all
situations, can be laid down; yet in
weighing the probabilities and for
gathering the relevant indicia, the
courts are usually guided by these
circumstances: (1) the source from
which the purchase money came; (2)
the nature and possession of the
property, after the purchase; (3)
motive, if any, for giving the
11 APEAL-270.01
transaction a benami colour; (4) the
position of the parties and the
relationship, if any, between the
claimant and the alleged benamidar;
(5) the custody of the title-deeds
after the sale and (6) the conduct
of the parties concerned in dealing
with the property after the sale.
The above indicia are not exhaustive
and their efficacy varies according
to the facts of each case.
Nevertheless No.1, viz. the source
for determining whether the sale
standing in the name of one person,
is in reality for the benefit of
another.
This Judgment was followed up in Bhim Singh
(dead) by L.Rs. and another v. Kan Singh,
reported in AIR 1980 SC 727.
8. In Krishnanand Agnihotri v. State of
M.P., reported in AIR 1977 SC 796, the Supreme
Court considered the question of assets in the
context of provisions of Section 5 of the
Prevention of Corruption Act, 1947. The Court
was considering, amongst other things, whether
a sum of `11,180/- lying in fixed deposit with
Allahabad Bank, Varanasi, in the name of Shanti
Devi belonged to the appellant, a public
servant, or to Shanti Devi. In this context, in
para 26 the Court observed as under after
relying on the Judgment in Jaydayal Poddar s
12 APEAL-270.01
case (supra):
It is difficult to see how in the
face of this overwhelming evidence it
could be concluded that the sum of
Rupees 11,180/- lying in fixed
deposit in Shanti Devi's name was an
asset belonging to the appellant. It
must be remembered that the fixed
deposit stood in the name of Shanti
Devi and the burden, therefore, lay
on the prosecution to show that
Shanti Devi was a benamidar of the
appellant. It is well settled that
the burden of showing that a
particular transaction is benami and
the appellant owner is not the real
owner always rests on the person
asserting it to be so and this burden
has to be strictly discharged by
adducing legal evidence of a definite
character which would either directly
prove the fact of benami or establish
circumstances unerringly and
reasonably raising an inference of
that fact. The essence of benami is
the intention of the parties and not
unoften, such intention is shrouded
in a thick veil which cannot be
easily pierced through. But such
difficulties do not relieve the
person asserting the transaction to
be benami of the serious onus that
rests on him, nor justify the
acceptance of mere conjectures or
surmises as a substitute for proof.
(Vide Jayadayal Poddar v. Mst. Bibi
Hazra, (1974) 2 SCR 90 = (AIR 1974 SC
171). It is not enough merely to show
circumstances which might create
suspicion, because the court cannot
13 APEAL-270.01
decide on the basis of suspicion. It
has to act on legal grounds
established by evidence. Here, in the
present case, no evidence at all was
led on the side of the prosecution to
show that the monies lying in fixed
deposit in Shanti Devi's name were
provided by the appellant and
howsoever strong may be the suspicion
of the court in this connection, it
cannot take the place of proof. It
must, therefore, be held that the
prosecution has failed to show that
the sum of Rs. 11,180/- lying in
fixed deposit in Shanti Devi's name
belonged to the appellant.
This was followed up in P. Satyanarayan Murty
v. State of Andhra Pradesh, reported in (1992)
4 SCC 39.
9. The learned counsel for the appellant
submitted, relying on these authorities, that
the difficulties of the prosecution in
establishing that a transaction was benami do
not relieve the prosecution of the onus to
prove that the transaction was benami and that
the Court cannot decide a case merely on the
basis of suspicion. The learned counsel,
therefore, submitted that the evidence tendered
by the prosecution falls far too short of the
standard of proof required to be tendered.
14 APEAL-270.01
10. He further submitted that since the
charge does not mention that the assets
standing in the name of the appellant s
relations were held by the appellant benami in
the names of his relations, the evidence could
not at all be looked into and for this purpose
relied on a Judgment of the Supreme Court in
Shamsaheb M. Multtani v. State of Karnataka,
reported in 2001 SAR (Criminal) 196. The
Judgment was
igrendered in the
different offence. In that case, there was no
context of a
charge of offence punishable under Section 304-
B of the IPC and that the charge was only under
Section 302 of the IPC.
11. The learned PP for the CBI countered
by submitting that the charge categorically
mentions all these properties and the details
furnished with the charge-sheet also show names
of the persons who were shown to be the holders
of the assets concerned. He submitted that most
of the fixed deposit receipts or debentures are
either in the name of the appellant's wife or
the appellant or the appellant and the
appellant's wife together, or one or two of the
appellant's sisters with the appellant's wife
or the appellant's daughter and the appellant's
wife together, as indicated in the chart in the
15 APEAL-270.01
earlier part of this Judgment. He submitted
that the contention that the charge does not
mention that the properties were held benami,
therefore, has no substance. This charge
categorically lists the properties and alleges
that the appellant was possessed of those
assets. Therefore, mere absence of use of the
word benami would not matter. The learned PP
further rightly submitted that the crucial test
would be whether the persons concerned have any
independent source of income to have been able
to acquire the assets. He submitted that the
evidence would show all these assets were
acquired with the income of the appellant.
Therefore, this contention about failure to
mention that the appellant owned assets benami
in the names of his relations has to be
rejected.
12. The learned counsel for the appellant
next submitted that the assets standing in the
name of the relations were acquired by the
relations themselves and there is nothing to
show that they were acquired with the
appellant s funds. He pointed out that the
appellant's father Birsingh Ho was a
respectable cultivator in Chakradharpur
District. Birsingh Ho s father Budhan Ho was in
16 APEAL-270.01
fact Mukhiya of the village. He submitted that
Birsingh was cultivating the land and was also
working as a part-time accountant with Biri
Trading Company and was not a biri worker.
Birsingh had two wives, having married the
second after the first wife died. The appellant
had Budhan Jonko and Sukhram Jonko as his real
brothers, Uday Jonko as his step-brother,
Savitri Jonko as his sister, Jamuna Jonko,
that
Munni Jonko and Rani Jonko as step-sisters. He
stated the appellant s father-in-law
Dharamdas Mundari was an Assistant Commssioner
of Sales Tax and retired as Additional
Secretary, Finance Ministry in the State
Government. The appellant married Nirmala, the
daughter of Dharamdas in 1981. Nirmala s uncles
also held big posts in Food Corporation of
India and as a Civil Surgeon. Therefore,
according to him, the family had sufficient
nucleus to provide for acquisition of assets in
the names of Rani and Munni, the appellant s
step-sisters and Nirmala, the appellant s wife,
coming from the appellant s father and father-
in-law. The learned counsel also pointed out
that there is nothing on the record to show
that the investments came from the appellant.
13. He relied on a Judgment of the Supreme
17 APEAL-270.01
Court in D.S.P. Chennai v. K. Inbasagaran,
reported 2006 Cri.L.J. 319, where the Court was
considering the assets standing in the name of
a public servant's wife. In this context, the
following observations of the Court may be
usefully reproduced as under:
15. .... Therefore, the initial
burden was on the prosecution to
establish whether the accused has
acquired the property
disproportionate to his known source
of income or not. But at the same
time it has been held in a case of
State of M.P. Vs. Awadh Kishore
Gupta and Others reported in (2004)
1 SCC 691 that accused has to
account satisfactorily the money
received in his hand and satisfy the
court that his explanation was
worthy of acceptance. In order to
substantiate the plea taken by the
accused that all the moneys which
had been received belonged to his
wife and in support thereof he has
examined as many as 13 witnesses
including himself, his wife and his
son-in-law. D.W. 12 is the wife of
the accused. She has deposed that
the entire money belonged to her.
She has admitted the raid on her
house and she has also admitted that
she has amassed the wealth by
selling cycle rims and leather
products without any bill and out of
the money amassed by her she had
persuaded her husband to deposit the
same at various Banks. She has come
forward and admitted the recovery of
18 APEAL-270.01
the foreign exchange at her house
and she has accounted for the same.
She has also admitted the recovery
of the gold ornaments at her house
and she has explained that she has
purchased those gold ornaments. She
has also submitted that some real
estate was purchased out of self
earning as well as the loan from the
mother of the son-in-law and some
contribution was made by the son-in-
law and the son-in-law has also
admitted. Likewise, D.W.8 - her son-
in-law,ig Thiru S.Rajasankar also
appeared in the witness box and
admitted that he has also saved
certain foreign exchange when he had
gone on various visits abroad. He
has also admitted to have carried
some money to be deposited in the
Bank. The accused has also come
forward in the witness box as D.W.13
and has deposed that all the moneys
belonged to his wife and when he
came to know about the unaccounted
money at his house, he gave his
piece of mind to her. He has
admitted that on one or two
occasions money was carried by
himself to be deposited in the
account in Punjab National Bank and
some money was also deposited on
account of some of the members of
the family by P.W.8, S. Rajasankar,
son-in-law. Therefore, under these
circumstances, the respondent has
explained the possession of
unaccounted money.
16. .... It is true that the
prosecution in the present case has
19 APEAL-270.01
tried its best to lead the evidence
to show that all these moneys
belonged to the accused but when the
wife has fully owned the entire money
and the other wealth earned by her by
not showing in the Income-tax return
and she has accepted the whole
responsibilities, in that case, it is
very difficult to hold the accused
guilty of the charge. It is very
difficult to segregate that how much
of wealth belonged to the husband and
how much belonged to the wife. The
prosecution has not been able to lead
evidence to establish that some of
the money could be held in the hands
of the accused. In case of joint
possession it is very difficult when
one of the persons accepted the
entire responsibility. The wife of
the accused has not been prosecuted
and it is only the husband who has
been charged being the public
servant. In view of the explanation
given by the husband and when it has
been substantiated by the evidence of
the wife, the other witnesses who
have been produced on behalf of the
accused coupled with the fact that
the entire money has been treated in
the hands of the wife and she has
owned it and she has been assessed by
the Income-tax Department, it will
not be proper to hold the accused
guilty under the prevention of
Corruption Act as his explanation
appears to be plausible and
justifiable. The burden is on the
accused to offer plausible
explanation and in the present case,
he has satisfactorily explained that
the whole money which has been
20 APEAL-270.01
recovered from his house does not
belong to him and it belonged to his
wife. Therefore, he has
satisfactorily accounted for the
recovery of the unaccounted money.
Since the crucial question in this
case was of the possession and the
premises in question was jointly
shared by the wife and the husband
and the wife having accepted the
entire recovery at her hand, it will
not be proper to hold husband guilty.
Therefore, in these circumstances, we
are of the opinion that the view
taken by the High Court appears to be
justified and there are no compelling
circumstances to reverse the order of
acquittal. Hence, we do not find any
merit in this appeal and the same is
dismissed.
It may be seen from the above observations that
the wife of the public servant in that case had
a plausible explanation about the assets
standing in her name. Such is not the case of
the appellant's wife.
14. The learned counsel for the appellant
submitted that the burden on the appellant can
be discharged with evidence which would be
enough to create a probability. He submitted
that the degree of burden of proof on the
appellant is not as high as that on the State.
For this purpose, he relied on a Judgment of
the Supreme Court in Trilok Chand Jain v. State
21 APEAL-270.01
wherein, in para 8, the Court held as under:
8. Section 4(1) of the
Prevention of Corruption Act reads:
"Wherein any trial of an
offence punishable under
section 161 or section 165 of
the Indian PenaI Code (or of an
offence referred to in clause
(a) or clause (b) of sub-
section (1) of section 5 of
this Act punishable under sub-
s. (2) thereof, it is proved
that an accused person has
accepted or obtained, or has
agreed to accept or attempt to
obtain, for himself or for any
other person, any gratification
(other than legal remuneration
or any valuable thing from any
person, it shall be presumed
unless the contrary is proved
that he accepted or obtained,
or agreed to accept or
attempted to obtain, that
gratification or that valuable
thing, as the case may be, as a
motive or reward such as is
mentioned in the said section
161 or, as the case may be,
without consideration or for a
consideration which he knows to
be inadequate."
From a reading of the above
provision it is clear that its
operation, in terms, is confined to
22 APEAL-270.01
any trial of an offence punishable
under s. 161 or s. 165, Penal Code
or under clause (a) or (b) of s.
5(1) read with sub-section (2) of
that section of the Act. If at such
a trial, the prosecution proves that
the accused has accepted or obtained
gratification other than legal
remuneration, the court has to
presume the existence of the further
fact in support of the prosecution
case, viz., that the gratification
was accepted or obtained by the
accused as a motive or reward such
as mentioned in s. 161, Penal Code.
The presumption however, is not
absolute. It is rebuttable. The
accused can prove the contrary. The
quantum and the nature of proof
required to displace this
presumption may vary according to
the circumstances of each case. Such
proof may partake the shape of
defence evidence led by the accused,
or it may consist of circumstances
appearing in the prosecution
evidence itself, as a result of
cross-examination or otherwise. But
the degree and the character of the
burden of proof which s. 4(1) casts
on an accused person to rebut the
presumption raised thereunder,
cannot be equated with the degree
and character of proof which under
s. 101, Evidence Act rests on the
prosecution. While the mere
plausibility of an explanation given
by the accused in his examination
under s. 342, Cr.P.C. may not be
enough, the burden on him to negate
the presumption may stand
discharged, if the effect of the
23 APEAL-270.01
material brought on the record, in
its totality, renders the existence
of the fact presumed, improbable. In
other words, the accused may rebut
the presumption by showing a mere
preponderance of probability in his
favour; it is not necessary for him
lo establish his case beyond a
reasonable doubt - see Mahesh Prasad
Gupta v. State of Rajasthan, AIR
1974 SC 773.
15. Evenig this Court had held in N.P.
Lotlikar v. C.B.I. and another, reported in
1993 Cri.L.J. 2051, that the accused needs to
establish only through preponderance of
probabilities that the defence is plausible.
There can be no doubt about this proposition.
But unfortunately the material produced by the
accused first, is restricted to his own
father's income and properties, which is
rendered improbable by proof of the fact that
funds flowed, not from his father to him, but
from him to his father. Secondly, while the
appellant was keen to establish his father's
sound financial position, when questioned about
assets in the names of his other relations, the
learned counsel submitted that it was for those
others to explain and that it was not necessary
for the appellant to furnish an explanation. I
have considered these contentions. As the
discussion to follow would show, the
24 APEAL-270.01
explanations furnished by the appellants are so
unreasonable and unbelievable that the learned
trial Judge could not but have rejected them.
The appellant had not even made a case of his
explanation being probable.
16. The learned PP submitted that the
appellant too could have shown that the source
of these investments in the names of Nirmala,
Munni, Rani and Gunjan were from the income of
Birchand Ho or Nirmala s father Dharamdas. The
learned PP submitted that Nirmala, Rani, Munni
or Gunjan are not shown to have any independent
source of income. The learned counsel for the
appellant submitted that it was not for the
appellant to show whether these persons had any
independent source of income or not. It would
be for the prosecution to establish that they
had no source of income. This contention could
have been accepted but for the fact that the
appellant took upon himself the task of
explaining as to how his father was a man of
means by submitting a written statement to
supplement his statement under Section 313 of
Criminal Procedure Code and also by annexing
supporting documents. Thus, if he could explain
the income of his father, there is no reason
why he could not similarly come out with an
25 APEAL-270.01
explanation about the income of Nirmala, Munni
and Rani, who are admittedly shown to be
persons without any income. Therefore, though
ideally the prosecution ought to have shown the
source from which money came for each of these
investments, failure to do so need not
necessarily result in rejecting the prosecution
case.
17.
not that
The learned PP submitted that it is
the prosecution has not shown the
source from where money for investments came.
He pointed out that the appellant s father
Birsingh Ho, who was supposed to be a man of
means and supposed to have funded acquisition
of properties by his daughters or daughter-in-
law, in fact did not have money for the
purchase of a house at Chakradharpur. He
pointed out that the appellant s father was in
fact working in a biri factory on meagre wages
as could be seen from the evidence of PW-29 PI
Shinde. PW-30 Raman Tyagi had also stated that
Birsingh Ho did not have much of income from
cultivation or other activities. The learned PP
also drew my attention to the evidence of PW-27
Sunil Kumar who was working for the Biri
Trading Company where the appellant s father
was employed. PW-27 Sunil Kumar had proved the
26 APEAL-270.01
statement of wages paid to Birsingh Ho from
time to time, which is at Exhibit-130, which
would show that the monthly wages paid to
Birsingh Ho ranged between `98.50 in 1970 to
`442/- in 1987. Therefore, according to the
learned PP, Birsingh Ho could not at all have
been in a position to finance the investments
by his daughters or daughter-in-law.
18.
had an
The learned counsel for the appellant
objection to receipt of evidence of
PW-30 Raman Tyagi. According to the learned
counsel, just as PW-29 PI Shinde had been
authorised by order dated 2-11-1987
(Exhibit-140) to investigate into the crime in
exercise of powers under Section 5-A(1) of the
PC Act, 1947, similar authorisation was not
issued in the name of Tyagi. Therefore, he
submitted that the entire investigation carried
out by Tyagi in Jharkhand, which includes
evidence collected about the properties of
Birsingh Ho and his income would have to be
excluded from consideration. The learned PP
submitted, and rightly in my view, that the
order at Exhibit-140 authorised PI Shinde to
conduct investigation with the assistance of
other officers as well. Therefore, it is not
that services of Raman Tyagi could not have
27 APEAL-270.01
been employed for the purpose of carrying out
investigation. The learned counsel for the
appellant relied on a Judgment of the Supreme
Court in State Inspector of Police,
Vishakhapatnam v. Surya Sankaram Karri,
reported in 2007 All MR (Cri.) 555 (SC) on the
question of unauthorised investigation. He
submitted that Tyagi had no authority to
investigate into the offences since there was
no order issued in the name of Tyagi. It has,
however, to be noticed that the Court observed
in para 21 of its Judgment as under:
21. It is true that only on the
basis of the illegal investigation a
proceeding may not be quashed unless
miscarriage of justice is shown, but,
in this case, as we have noticed
herein before, the respondent had
suffered miscarriage of justice as
the investigation made by P.W.41 was
not fair.
Therefore, the illegality of investigation per
se would be unhelpful. It is not shown that the
investigation carried out by Tyagi was not
fair. In any case, Raman Tyagi stated in his
deposition at Exhibit-145 that he had been
asked by the S.P. Shri A.L. Verma to gather
evidence about the income derived by the father
of the accused and in pursuance of those
28 APEAL-270.01
directions he had gone to Chakradharpur. Though
ideally Verma could have passed an order in the
name of Tyagi as well just as he had passed the
order in the name of PI Shinde, the absence of
such order on record in itself would not make
any material collected by Tyagi inadmissible in
evidence. In any case, the evidence of PW-30
Tyagi is negative, in the sense that he states
that Birsingh Ho did not own properties worth
biri factory
the name. The evidence about income from the
has been tendered by PW-29 PI
Shinde himself.
19. The learned PP further submitted that
if Birsingh Ho did have substantial income to
finance the investments of his daughters in
Mumbai, there would be no question of monies
flowing from Mumbai, where the appellant was
posted, to Jaraikela where Birsingh Ho was
residing. He pointed out that consideration for
purchase of a house at Chakradharpur from
Akundi Sundaramma and loan advanced to her, in
fact went from Mumbai to Chakradharpur by a
circuitous route which has been duly traced by
the prosection. Akundi Sundaramma was paid a
sum of `49,500/- by cheque dated 13-3-1985
which is marked as Exhibit-F in the evidence of
PW-28 Sujit Moitra, the Deputy Manager of State
29 APEAL-270.01
Bank of India, Jaraikela at the relevant time.
On 13-3-1985 and 14-3-1985, Nirmala, the
appellant s wife, had issued two cheques in
favour of Akundi Sundaramma for `49,500/- and
`50,500/- respectively. They were drawn on
Nirmala s account No.9897 from Chakradharpur
Branch. The amount came from a draft for
`1,00,000/- issued in the name of Birsingh Ho
and Nirmala Jonko on 22-2-1985 from the State
Bank of India, Fort, Bombay Branch, drawn on
State Bank of India Jaraikela Branch. This was
credited to account No.9897 from where the
consideration went for the purchase of property
of Akundi Sundaramma. The learned PP also
pointed out that it is not an isolated
transaction of money flowing from Mumbai to
Jharkhand. He pointed out that on the same
date, that is on 22-2-1985 another sum of
`20,000/- was remitted by drawing a draft in
the name of Birsingh Ho and Nirmala Jonko,
payable at Jaraikela Branch of State Bank of
India. This too was issued by State Bank of
India, Fort Banch, Mumbai. On the same day
another draft in the name of Nirmala Jonko and
Munni Jonko for `52,500/- was issued by the
State Bank of India, Fort-Bombay, payable at
State Bank of India, Jaraikela. All these
drafts have been identified in the course of
30 APEAL-270.01
evidence of PW-28 Sujit Moitra. The draft for
`52,500/- was credited in Nirmala and Munni s
account on 4-3-1985 vide extract of account
Exhibit-132. The learned PP, therefore, rightly
submitted that if Birsingh Ho was a man of
means, amounts should have been remitted by him
to his son at Mumbai rather than amounts
flowing from Mumbai for purchase of property at
Chakradharpur. Curiously remittances from
Mumbai have
ig been made in
which, in each case, includes the appellant s
favour of persons
wife. Therefore, the contention that the
persons in whose names the assets were acquired
had their own source of income or that
acquisition of assets was financed by the
appellant s father Birsingh Ho was rightly
rejected by the learned trial Judge as an eye-
wash.
20. It would be interesting to note as to
what the appellant states in his written
statement to supplement his statement under
Section 313 of Criminal Procedure Code. He
stated that his father was the richest person
from the village and therefore could educate
all his children. He has filed on record
certificates from Anchal Adhikari, Bandgaon and
Sarpanchs of Gram Panchayats, Otar and
31 APEAL-270.01
Buddigoda to support his claim about the status
of his father. The certificate of Anchal
Adhikari, Bandgaon shows that the appellant s
father owned land worth `90,000/-, possibly
3.12 hectares in area. The certificates of
Sarpanchs of the two Gram Panchayats are
similarly worded and both state that Birsingh
Ho had about 8 to 10 acres of cultivable land
from which he could save at least 80 quintals
of paddy
after the household
certificates show that one puda of paddy is
expenses. The
about 12 to 15 quintals and the yield was about
15 pudas, that is about 225 quintals of paddy.
It is not known whether 8 acres of land or 3
hectares of land could yield 225 quintals of
paddy per annum.
21. Considering all this, the evidence
tendered about investments was rightly accepted
by the learned trial Judge, who had in fact
given an allowance to the appellant by adding
to his salary income. The income which the
learned Judge took into consideration was
`2,69,688/- against `1,40,188/- from salary.
The learned Judge had also increased the likely
savings to `2,44,688/- from `1,58,188/- shown
in the charge. Even then the assets were found
to be disproportionate to the extent of
32 APEAL-270.01
`3,87,570/-.
22. The learned PP submitted that though
two cars are shown to have been purchased in
the names of the appellant's sister and wife by
taking loan, since they had no income, it is
not clear as to how the loan was to be repaid.
The appellant had stated in his written
statement at Exhibit-152, in para 4, that the
amounts standing in the name of his wife in the
Nepean Sea Road Branch of State Bank of India
were amounts received by her as gifts from her
parents and the appellant's father from time to
time, and therefore were stridhan. He submitted
that as per the traditions of the tribal
society of the accused, the accused was getting
25% agricultural produce of his family and that
he was getting grain and cereal from his native
place. Therefore, he had claimed that he could
save 70% of his income. The learned Judge too
had taken only 30% of the salary as the
household expenditure. Therefore, this argument
does not take the appellant s case further.
23. On the question of disproportionate
assets, the learned counsel for the appellant
referred to a Judgment of the Supreme Court in
State of Maharashtra v. Pollonji Darabshaw
33 APEAL-270.01
Daruwalla, reported in 1988 Cri.L.J. 183 = AIR
1988 SC 88. The observations of the Court in
para 13 of the Judgment may be usefully
reproduced as under:
13. However, these errors of
approach and of assumption and
inference in the judgment under
appeal do not, by themselves,
detract from the conclusion reached
by the High Court that, in the
ultimate analysis, the prosecution
has not established the case against
respondent beyond reasonable doubt.
The discussion of and the
conclusion reached on the contents
and parts (c) to (e) by the High
Court tends to show that the
disproportion of the assets in
relation to the known source of
income is such that respondent should
be given the benefit of doubt though
however, on a consideration of the
matter, if cannot be said that there
is no disproportion or even a
sizeable disproportion. For instance,
Shri Bhasme is right in his
contention that the acceptance by the
High Court of the case of the alleged
gift from the mother is wholly
unsupported by the evidence. There
are also other possible errors in the
calculations in regard to point(e).
The finding becomes inescapable that
the assets were in excess on the
known sources of income.
34 APEAL-270.01
But on the question whether
the extent of the disproportion is
such as to justify a conviction for
criminal misconduct under Section
5(1)(e) read with Section 5(2), we
think, we should not, in the
circumstances of the ease, interfere
with the verdict of the High Court
as, in our view, the difference would
be considerably reduced in the light
of the factors pointed out by the
High Court. A somewhat liberal view
requires to be taken of what
proportion of assets in excess of the
known sources of income constitutes
"disproportion" for purpose of
Section 5(1)(e) of the Act.
There can be no doubt about the proposition
that merely because the assets are in excess of
known sources of income, that in itself cannot
amount to criminal misconduct, and unless the
assets are shown to be disproportionate, the
accused s conviction should not follow. In the
case at hand, the disproportion held as proved
by the learned Judge is significant.
24. The learned counsel for the appellant
next submitted that the prosecution must fail
because it is not shown that sanction for
prosecution was accorded by authority competent
to do so. He relied on a Judgment of the
Supreme Court in Mohd. Iqbal Ahmed v. State of
Andhra Pradesh, reported in 1979 Cri.L.J. Page
35 APEAL-270.01
633 = AIR 1979 SC 677 on the question of
sanction to prosecute. The observations of the
Supreme Court in para 3 of the Judgment may be
usefully reproduced as under:
.... It is incumbent on the
prosecution to prove that a valid
sanction has been granted by the
Sanctioning Authority after it was
satisfied that a case for sanction
has been made out constituting the
offence. This should be done in two
ways; either (1) by producing the
original sanction which itself
contains the facts constituting the
offence and the grounds of
satisfaction and (2) by adducing
evidence aliunde to show that the
facts placed before the Sanctioning
Authority and the satisfaction
arrived at by it. It is well settled
that any case instituted without a
proper sanction must fail because
this being a manifest difficult (sic-
defect) in the prosecution, the
entire proceedings are rendered void
ab initio.
25. In State of T.N. v. M.M. Rajendran,
reported in 1998 SCC (Cri.) 1000, on which
reliance was placed by the learned counsel for
the appellant, the Supreme Court was again
considering the question of a valid sanction
and observed as under:
36 APEAL-270.01
.... The High Court, has come to
the finding that all the relevant
materials including the statements
recorded by the Investigating Officer
had not been placed for consideration
by the City Commissioner of Police,
Madras because only a report of the
Vigilance Department was placed
before him. The High Court also came
to the finding that although the
Personal Assistant to the City
Commissioner of Police, Madras has
deposed in the case to substantiate
that proper sanction was accorded by
the City Commissioner of Police, the
witness has also stated that the
report even though a detailed one was
placed before the Commissioner by him
and on consideration of which the
Commissioner of Police had accorded
the sanction, it appears to us that
from such deposition, if cannot be
held conclusively that all the
relevant materials including the
statements recorded by the
Investigating Officer had been placed
before the Commissioner of Police. It
appears that the Commissioner of
Police had occasion to consider a
report of the Vigilance Department.
Even if such report is a detailed
one, such report cannot be held to be
the complete records required to be
considered for sanction on
application of mind to the relevant
materials on records. Therefore, it
cannot be held that the view taken by
the High Court that there was no
proper sanction in the instant case
is without any basis. ....
37 APEAL-270.01
26. The learned counsel for the appellant
drew my attention to the evidence of PW-24 Ram
Raj Bharti who was at the relevant time serving
in the Ministry of Finance. The sanction at
Exhibit-120 was signed by him as Under
Secretary to Government of India. He stated
that the President is the authority to sanction
prosecution in such cases. But the officers of
the level of Under Secretary are authorised to
pass such orders. He stated that all the papers
concerning the case of the appellant were sent
by CBI to him. He sent those papers to the
Minister with his short note and received the
papers back after the Minister's approval. He
states that after going through the papers he
was satisfied that the officer had committed
offence and accordingly he accorded sanction
for prosecution. In cross-examination he stated
that before the papers came to him, they were
initially sent to the concerned Ministry but
could not tell the date on which they were sent
to the Ministry, or the date when the papers
were considered by the Ministry and then sent
to him. He denied the suggestion that while
according sanction he took report of the CBI to
be truthful, implying that he had applied his
mind to the material.
38 APEAL-270.01
27. The learned counsel for the appellant
submitted that under the Rules of Business of
Government of India, the Department, which is
the cadre controlling authority, and not a
particular officer of that Department, is the
authority competent to accord sanction. There
could be no doubt that Department would be
sanctioning prosecution. But since the
Department functions through individuals,
approval by
ig the Minister
Department should be enough to indicate that
who heads the
the Department had authorised the prosecution
of the appellant. The hierarchy in the
Department obtained by the appellant by filing
a query under the Right to Information Act
which he has made available for my perusal,
does not show that the Under Secretary was not
authorised to issue sanction order. Therefore,
reliance on the Judgments of the Supreme Court
in the State of Rajasthan v. Dr. A.K. Datta,
reported in AIR 1981 SC 20 and Parmanand Dass
v. State of Andhra Pradesh, reported in 1978
Cri.L.J. 1802 = AIR 1978 SC 1745, which deal
with the factual question as to who was the
sanctioning authority in those cases is
unhelpful. For the same reason, it may not be
necessary to discuss the Judgment of this Court
in Pravin Kumar v. The State, reported in 2005
39 APEAL-270.01
Cri.L.J. 2714. There is nothing to show that
there is any defect in the sanction and
therefore the objections on this count have to
be rejected.
28. The learned counsel also submitted
that the sentence inflicted upon the appellant
is unduly harsh and since it pertains to
incident 24 years ago, at this point of time
maintaining that sentence would be unjust. The
learned trial Judge has considered this aspect
as well in para 24 of his Judgment and has
rightly held that delays caused due to the
system cannot work to the advantage of the
appellant who should have been served with just
dessert long ago.
29. In view of the above, the appeal is
dismissed. However, the order convicting the
appellant is modified and the conviction of the
appellant for the offence punishable under
Section 13(2) r/w Section 13(1)(e) of the PC
Act, 1988 is altered to that for the offence
punishable under Section 5(2) r/w Section 5(1)
(e) of the PC Act, 1947. The appellant shall
surrender to his bail within a period of four
weeks to suffer his sentence and if he does
not, the learned trial Judge shall have him
40 APEAL-270.01
arrested and committed to prison.
Sd/-
(R.C. CHAVAN, J.)
