Nand Kishore Rai vs Central Bureau Of Investigation
2022 Latest Caselaw 3144 Cal

                IN THE HIGH COURT AT CALCUTTA
               CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                            C.R.A 95 of 2018

                            Nand Kishore Rai
                                  Vs.
                   Central Bureau of Investigation

     For the appellant:            Mr. Milon Mukherjee, Sr. Adv.,
                                   Mr. Santanu Talukdar, Adv.

     For the Respondent:           Mr. Pulakesh Bajpayee, Adv.

C.R.A 96 of 2018

Smt. Bandana Rai Vs.

                   Central Bureau of Investigation



     For the appellant:            Mr. Milon Mukherjee, Sr. Adv.,
                                   Mr. Santanu Talukdar, Ad.

     For the Respondent:           Mr. Pulakesh Bajpayee, Adv.


Heard on: 23 March, 2022.
Judgment on: 10 June, 2022.

BIBEK CHAUDHURI, J. : -

1. By filing two appeals against the same judgment and order of

conviction and sentence, appellants Nand Kishore Rai and Smt. Bandana

Rai have assailed the judgment passed by the court below in Special Case

no. 12 of 2013. Both the appeals were heard analogously and are being

disposed of by the following composite judgment.

2. In Special Case No.12 of 2015 arising out of RC Case No.3A of 2013

both the appellants were found guilty to the charge under Section 13(1)(e)

of the Prevention of Corruption Act read with Section 109 of the IPC and

appellant Nand Kishore Rai was sentenced to suffer imprisonment for six

years and with fine and default clause. Appellant Smt. Bandana Rai is

sentenced to suffer imprisonment for two years for committing offence

under Section 109 of the IPC with fine and default clause.

3. At the outset it is worth mentioning that the appeal against

Bandana Rai abated on her death during pendency of the appeal.

4. Undisputedly, appellant Nand Kishore Rai was a superintendent of

Customs (preventive), Nepal and Bhutan unit. He was posted at Customs

House, Kolkata. It is the allegation of CBI that the said Nand Kishore Rai

amassed assets disproportionate to his known source of income. The

defacto complainant gathered information that a case being RC-

01(A)/2013/AC-III CBI/New Delhi was registered against the said Nand

Kishore Rai, Superintendent of Customs under various penal provisions

of the Prevention of Corruption Act, 1988 (hereafter described as the said

Act for short) and searches were conducted on 9th January, 2013 at

various places in the states of West Bengal, Punjab, Delhi, Mumbai etc.

During investigation in the aforesaid case it was disclosed that the

appellant acquired assets worth Rs.67,55,776/- during the period

between 31st March, 2005 and 9th January, 2013. It is also ascertained

that appellant and his wife Smt. Bandana Rai accumulated assets in the

form of huge bank balances, mutual funds and fixed deposits. They are

also in possession of a car, costly jewellery items and modern electronic

gadgets. During search huge amount of cash money amounting to

Rs.36,42,000/- was recovered from different locations of their master

bedroom in Kolkata and they could not give any satisfactory reply.

However, Smt. Bandana Rai pleaded that out of the said amount of

money, some part of the cash was earned by him from sale of paintings.

In the complaint it was also stated that the appellant accumulated a sum

of Rs.67,27,191/- approximately during the period between 31st March,

2005 to 9th January, 2013, while his income from salary was

Rs.30,37,334/-, agricultural income was Rs.2,98,600/-. He had incurred

expenditure of Rs.57,35,777/- towards his household expenses, payment

of LIC premium/medi claim policy, repayment of loan, education of

children and other expenses. The value of assets of the appellant is

Rs.82,27,232/- at the end of the check period, i.e., 9th January, 2013. He

had also assets worth Rs.14,71,456/- at the beginning of the check

period, i.e., on 31st March, 2005. Thus, he accumulated assets worth

Rs.67,55,776/- and also incurred expenditure of Rs.57,35,777/- which is

disproportionate to his known source of income.

5. On the basis of the said information submitted by the Deputy

Inspector General of Police, CBI/AC(III)/New Delhi RC Case No.3A of 2013

was registered against the accused persons for committing offence under

Section 13(2) read with Section 13(1)(e) and under Section 7/12/13(1)(d)

of the said Act together with Section 120B of the IPC for acquisition of

disproportionate assets against the known source of income.

6. PW15 Suryakant Prasad took up the case for investigation. He

collected the documents seized in RC 1(A)/2013 in order to implicate the

accused persons in this case after obtaining an order from the learned

Special Judge, Patiala Court, Delhi. During investigation of RC Case

No.1(A)/2013 a sum of Rs.36,42,000/- was recovered. On completion of

investigation he submitted charge-sheet against the accused persons.

7. It appears from the lower court record that the learned trial judge

framed charge against the appellant under Section 13(2) read with Section

13(1)(e) of the said Act and charge was also framed against Smt. Bandana

Rai under Section 13(2) read with Section 13(1)(e) of the said Act with

Section 109 of the IPC. As the accused persons pleaded not guilty, the

learned Judge, Special Court CBI took up the case for trial.

8. During trial, prosecution examined 15 witnesses. Amongst them

PW1 Sri Brojen Thamar was posted as the Principal Commissioner of

Customs, airport and administration at Kolkata Customs House. Being

the competent authority he accorded sanction for prosecution against Mr.

Nand Kishore Rai, Superintendent of Customs. PW2 Omprakash Singh

was the Secretary of a multistoried flat owners association under the

name and style of Asha Tower Welfare Resident Association. He submitted

a report to the Superintendent of Police, CBI, New Delhi on 18th October,

2013 stating, inter alia, that on 31 st March, 2005 the appellant paid a

sum of Rs.5,790/- towards security and on 9th January, 2013 he

deposited a sum of Rs.1930/- for the same purpose to the above named

welfare association. PW2 Barun Agarwal, an employee of M/s Dewars

Garage Ltd confirmed that the appellant purchased one Swift VXI car on

18th April, 2006. PW4 Sanjay Kajaria confirmed purchase of bathroom

fittings worth Rs.8595/- from the shop of PW4 on 7th December, 2011.

PW5 Nihar Ranjan Ganguly is the proprietor of M/s Ganguly. He

confirmed two cash memos dated 26th July, 2012 and 17th July, 2012

wherefrom it was learnt that the appellant purchased some electrical

fittings from the said shop. PW6 Amir Hussain is the proprietor of M/s

Mobile Kitchen on 14th November, 2011 Smt. Bandana Rai, wife of the

appellant purchased one chimney and cook top from his shop at

Rs.22,300/-. PW7 Abhijit Dalal is a witness to search and seizure of some

documents from the house of the appellant at Bondelgate near Park

Circus. His signatures on eight pages of the seizure list were marked as

exhibits. PW8 Jiten Chawla is the proprietor of an electronic business

under the name and style of Cams Corner. On 25th August, 2011, 2nd

November, 2012 and 16th May, 2012 Smt. Bandana Rai purchased some

electronic items from his shop at a consideration price of Rs.21,100/-.

PW9 Mr. Jyoti Bagga is a chartered accountant by profession. Under the

instruction of CBI he examined the books of accounts and income tax

return of M/s Sherpur Cold Storage Pvt. Ltd and Smt. Keshori Devi. On

examination he submitted his report in writing to the investigating officer

through email. Mr. Lolit Mohan Joshi and Mr. Manik Roy PW10 and

PW11 respectively are the witnesses to the search and seizure in respect

of the ancestral house of Nand Kishore Rai at Gazipur. PW12 and PW13

Rakesh Tiwari and Krishna Kant Rai are the witnesses to the search and

seizure in respect of the houses of a person by a team of CBI Officers near

Benaras Hindu University, Benaras. PW14 Ajit Kumar Pandey is an

Inspector of CBI who conducted search in connection with

RC1(A)/2013/CBI/AC(III)/New Delhi. PW15 is the Investigating Officer of

the case.

9. Mr. Milan Mukherjee, learned Senior Counsel on behalf of the

appellants at the outset submits the background of the case. It is

submitted that in connection with RC1(A)/2013/CBI/AC(III)/New Delhi,

house of the appellants at Bondelgate was searched by the CBI. CBI filed

charge-sheet in RC Case NO.1(A)/2013 at Patiala Court, Delhi for

disproportionate asset of the appellants amounting to Rs.36 lacks

approximately under the penal provision of Section 13(1) read with

Section 13(1)(d) of the Prevention of Corruption Act, 1988. In the case

under appeal, CBI filed charge-sheet under Section 13(1)(e) of the

Prevention of Corruption Act, 1988. Section 13(1)(e) runs thus:-

"Section 13(1)(e) A public servant is said to commit the

offence of criminal misconduct:-

(a)...

(b)....

(c)....

(d)....

(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 source of income."

10. Thus, it is contended by Mr. Mukherjee that the appellants were

allegedly found in possession of the pecuniary resources or property

disproportionate to their known sources of income and the accused could

not satisfactorily account for the said account of pecuniary resources.

11. Mr. Mukherjee has urged that in RC 1(A)/2013 CBI gave final

report at the end of the check period i.e 9th January, 2013. Against the

instant case another charge-sheet was filed by CBI for the same period.

12. Mr. Mukherjee next submits before me that the appellant joined his

service on 17th November, 1988. His income from November, 1988-2005

was not taken into consideration. Asset statement of the appellant was

also not seized. It is ascertained during investigation that the appellant

No.1 has ancestral family business in Uttar Pradesh. There is a cold

storage in the name of mother of the accused. He and his wife gets share

of profits from the said business. Under such circumstances, had the

asset statement been seized, it might have been found that the appellants

do not possess any asset amount disproportionate to their income. Under

such circumstances, the appellants are entitled to have the benefit of

Section 114(e) of the Evidence Act.

13. It is further submitted by Mr. Mukherjee that the penal provision

under Section 13(1)(e) of the said Act will attract only when the "public

servant cannot satisfactorily account of pecuniary resources or property

disproportionate to his known sources of income." However in the instant

case the accused No.1 deposed as a defence witness. He stated on oath

how he received money from his mother and brother. It is specifically

stated by him that his wife received Rs.19 lakhs by cash from his mother.

Out of Rs.19 lakhs the brother of Nand Kishore Rai brought a sum of Rs.8

lakhs on 19th December, 2012 and his wife received a sum of Rs.11 lakhs

from the mother of accused Nand Kishore Rai during puja vacation of

2012. The wife of accused No.1, namely Bandana Rai earned a sum of

Rs.1 lakh by selling her paintings during the financial year 2012-2013.

On 19th December, 2012 the brother of accused Nand Kishore Rai handed

over a sum of Rs.16 lakhs as advance of sale price of a piece of land

belonging to his wife. Furthermore, the accused in his deposition gave

detailed account of purchase of household goods and electronic items.

14. Mr. Mukherjee next draws my attention to the evidence of DW2

Sandeep Kumar Singh who is a Chartered Accountant by profession. As

per direction of the Investigating Officer he submitted a copy of the audit

report of Sherpur Cold Storage Pvt. Ltd. for the financial year 2012-2013

to the Investigating Officer. The said audit report was marked as Exhibit-

97. He also deposed that the said Sherpur Cold Storage Pvt. Ltd. was

owned by one Kaushal Kishore Rai and another Mr. Rai together with the

widow of their deceased brother and Smt. Bandana Rai, the appellant of

criminal appeal NO.CRA 96 of 2018. From the audit report (Exhibit-97) it

appears that Bandana Rai executed an agreement with other directors of

Sherpur Cold Storage Pvt. Ltd. to sale a portion of land in favour of said

cold storage and the entire amount of consideration price was paid to her

in advance. The learned trial judge failed to consider such aspect. He also

failed to consider the specific evidence of the DW1 Nand Kishore Rai that

he and his wife had kept the said money in their house because of the

fact that they could not decide as to whether they would purchase a

studio for Bandana Rai or a piece of land which he wanted to purchase. It

is also submitted by Mr. Mukherjee that the said amount of money was

not seized by the Investigating Officer in this case. Under such

circumstances, the court cannot come to a conclusion that the appellant

have acquired money disproportionate to known sources of income. The

learned trial judge recorded an order of conviction against the appellants

on the basis of the evidence adduced by the witnesses on behalf of the

defence. However, defence is under obligation to prove its case on the

basis of preponderance of probabilities. It is the primary duty of the

prosecution to prove charge beyond any shadow of doubt. When the

accused persons claimed that they received substantial amount of money

from Sherpur Cold Storage Pvt. Ltd and also as advance for the sale of a

piece of property belonging to his wife in favour of the said Sherpur Cold

Storage Pvt. Ltd, the audit report, books of account, IT return and other

relevant documents of Sherpur Cold Storage Pvt. Ltd. ought to be

considered by the trial court to come to a decision as to whether the case

of the prosecution was proved beyond any shadow of doubt or not. In the

absence of such documents being considered, the judgment of trial court

is perverse.

15. Learned P.P-in-Charge, on the other hand, submits that the

argument made by the learned Senior Counsel on behalf of the appellants

is hyper-technical. The case of the prosecution is that a sum of

Rs.36,42,000/- was recovered from the residential flat of the appellants.

The appellants could not satisfactorily account for the source of the said

money. The recovered amount was disproportionate to the known source

of income of the appellants. The appellants were examined under Section

313 of the Cr.P.C where they flatly admitted the recovery of the said sum

of Rs.36,42,000/-. It is the duty of the defence to show as to why said

huge amount of money was kept in the bed room of the appellants. It is

also submitted by the learned P.P-in-Charge that the explanation offered

by DW1 as to the legal source of money was also not proved satisfactorily

by the defence. Therefore, there is no reason to interfere with the

judgment and order of conviction and sentence passed by the trial court

against the appellants.

16. Having heard the learned Counsels for the appellants and the

respondent and on perusal of the evidence on record, it appears that

recovery of a sum of Rs.36,42,000/- is not denied by the accused persons.

The said amount was recovered from the master bed room of the

appellant and his wife. It is the case of the prosecution that the appellant

No.1 who was the Superintendent of Customs (Preventive) disclosed that

his income during the period between 31 st March, 2005 and 9th January,

2013 was Rs.67,27,191/- which includes income from his salary to the

tune of Rs.30,37,334/-. He incurred expenditure during the said period

approximately of Rs.57,35,777/-. According to the prosecution the

appellant was found in possession of assets to the tune of Rs.82,27,232/-

at the end of the check period, i.e., 9th January, 2013. He had also assets

worth Rs.14,71,456/- at the beginning of the check period, i.e., on 31st

March, 2005. Thus, during the check period he amassed assets

disproportionate to his known source of income to the tune of

Rs.57,64,362/-. Out of the said amount a sum of Rs.36,42,000/- was

recovered from the master bed room of Nand Kishore Rai. The said

amount is the subject matter of the RC No.3(A)/13 out of which Special

Case 12/2015 was registered.

17. I have already discussed the evidence adduced by the witnesses on

behalf of the prosecution during the trial of the case. It is pertinent to

mention that the officers and members or staff of CBI who conducted

search and recovered a sum of Rs.36,42,000/-, the Officers who seizes

the said amount, the witnesses to such seizure etc. were not examined in

the instant case. From the evidence on record it is ascertained that the

said amount was seized in RC 1(A)/2013 by the CBI Officials. Since the

said sum of Rs.36,42,000/- was recovered from the Kolkata residence of

the appellants, they were separately booked for committing offence under

Section 13(1)(e) of the said Act in Kolkata. In the instant case the

prosecution did not care to examine the witnesses who recovered the said

money or under what circumstances the said money was recovered. The

Investigating Officer only seized certain documents procured by CBI in

connection with RC1(A)/2013.

18. The said documents were also not proved in accordance with law in

this case. Therefore, I do not have any hesitation to hold that the

prosecution has failed to prove in the instant case that a sum of

Rs.36,42,000/- was recovered from the master bed room of the

appellants.

19. The appellants came up with an explanation that a sum of Rs.30

lakhs in two installments were received by them from Sherpur Cold

Storage Pvt. Ltd. Amongst the said money, the wife of Nand Kishore Rai

received Rs.19 lakhs as advance towards sale of her immovable property

in favour of Sherpur Cold Storage Pvt. Ltd. She also received a sum of

Rs.11 lakhs from her brother-in-law during puja vacation of 2012. During

the check period Bandana Rai earned Rs.1 lakh by selling her paintings.

Her mother-in-law paid some amount towards gift to the children of Nand

Kishore Rai. In order to ascertain the veracity or truthfulness of the

evidence adduced by DW1, it was absolutely necessary for trial court to

consider books of accounts, audit report and IT return of M/s Sherpur

Cold Storage Ptv. Ltd. The prosecution has failed to produce those

documents during trial of the case.

20. For the reasons stated above this Court is not in a position to

concur with the findings arrived at by the learned trial judge.

21. The accused persons, therefore, are entitled to get benefit of doubt.

22. For the reasons stated above, the impugned judgment and order of

conviction and sentence is liable to be set aside.

23. Accordingly, the instant appeal is allowed on contest.

24. The judgment and order of conviction and sentence passed by ld.

Trial Judge in Special Case No. 12/15 against the appellant is set aside.

25. The appellant Nand Kishore Rai is acquitted of the charge and

discharged from his bail bond.

26. Both the appeals are thus, disposed of, on contest.

(Bibek Chaudhuri, J.)