Chattisgarh High Court

Radheshyam Mehra vs State Of Chhattisgarh on 14 December, 2022

                                               1

                                                                                  AFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                      Judgment reserved on : 16/09/2022
                      Judgment delivered on : 14/12/2022
                                CRA No. 1277 of 2017
       Radheshyam Mehra S/o Latelram Mehra, Aged About 58 Years
        Occupation Service, The Then Chief Municipal Officer, Janpad
        Panchayat Pandariya, District Kabirdham, Chhattisgarh.,
        Chhattisgarh
                                                                      ---- Petitioner
                                          Versus
       State Of Chhattisgarh Through The State Economic Offences
        Wing Investigation Bureau/Anti Corruption Bureau, Raipur,
        Chhattisgarh.
                                                                    ---- Respondent



For Appellant                   :        Dr. NK Shukla, Sr. Adv. with Mr. Vivek
                                         Sharma, Adv.
For Respondent/State            :        Mr. Vimlesh Bajpai, Govt. Adv.


                      Hon'ble Smt. Justice Rajani Dubey
                                     C A V Judgment
01.     Challenge in this appeal is to the legality, validity and propriety of

the judgment of conviction and order of sentence dated 4.8.2017

passed by the Special Judge (Prevention of Corruption Act),

Kabirdham (CG) in Special Sessions Case No.01/2016 whereby the

appellant stands convicted under Section 13(1)(e) read with Section

13(2) of the Prevention of Corruption Act and sentenced to undergo RI

for five years and pay a fine of Rs.1 lac with default stipulation.

02.     Facts

, in brief, of the prosecution case are that the

accused/appellant was working as Chief Executive Engineer of Janpad

Panchayat and was posted at various places between 1.9.2003 to

10.3.2011. The prosecuting agency obtained search warrant from the

competent Court on 8.3.2011 and effected search at four different

places at a time on 10.3.2011. According to the prosecution, the check

period starts from 1.9.2003 and ends on 10.3.2011. During this period,

the appellant acquired properties of Rs.75,43,891/- which is

unexplained earning of the appellant. The prosecution obtained

sanction from the Additional Secretary, Govt. of Chhattisgarh, Law &

Legislative Affairs Department and after completion of investigation,

charge sheet was filed against him and accordingly, charges were

framed by the trial Court under Section 13(1)(e) read with 13(2) of

Prevention of Corruption Act which was denied by him and he pleaded

for trial.

03. In order to prove its case, the prosecution examined as many as

31 witnesses and thereafter, statement of the accused/appellant was

recorded under Section 313 of CrPC wherein he denied all the

incriminating circumstances appearing against him in the prosecution

case, pleaded innocence and false implication. In his defence, he

examined 10 witnesses and filed documents Ex.D/1 to D/10.

04. The trial Court after hearing counsel for the parties and

appreciation of oral and documentary evidence available on record, by

the impugned judgment convicted and sentenced the appellant as

mentioned in para 1 of this judgment. Hence this appeal.

05. Learned counsel for the appellant has submitted that the

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

is arbitrary, illegal and contrary to the law applicable to the facts and

circumstances of the case. The prosecution did not prove its case

beyond reasonable doubt. There is no cogent evidence available

against the appellant to connect him with the crime in question. The

appellant is an employee of Panchayat Department but the sanction for

prosecution was given by the Additional Secretary, Govt. of

Chhattisgarh, Law & Legislative Department, which is not proper.

During the search, the articles which were seized were not valued by

the authorized or unauthorized valuer but valuation of the articles

including the preparation of inventory is done by the police officers on

their own. The entire prosecution case stands vitiated on account of

withholding of important witnesses who are related to market value of

the seized articles and are foundation of the conviction. Even before

filing of charge sheet, no attempt was made by the prosecution to get

the seized articles examined by the valuer or the official valuers to

establish their value.

06. It is further contended on behalf of the appellant that the income

of the appellant prior to the check period has been completely ignored

by the trial Court. In his defence, the appellant proved the income of

his wife and sons but the trial Court did not appreciate the income of

the other family members of the appellant. The agricultural income

which is evident from several revenue documents belonging to wife of

the appellant and his major son, have also been included on the

ground that for this agricultural income, there is no reference in the

income tax returns or any other public document. Despite there being

evidence to show that the properties were purchased in the name of

appellant's sons Vivek Mehra and Vikas Mehra, by his grand-father,

this fact has been totally rejected by the trial Court and further, the fact

that appellant's wife Shakuntala Mehra purchased certain properties

from her stridhan is also rejected by the trial Court.

Vivek Mehra was the major son of the appellant, he was running

a Daisey Travels and Daisey Shringar with his wife Jyoti who was also

a teacher in Ratanpur and earning from tuitions as well. All these

income were included in the income of the appellant ignoring the

evidence of the defence witnesses and the documents filed by the

appellant to substantiate the above contention. The statements of the

prosecution witnesses are not sufficient to prove the case against the

appellant. Therefore, the impugned judgment being patently illegal is

liable to be set aside.

Reliance has been placed on the decisions in the matters of

Vasant Rao Guhe Vs. State of MP, AIR 2017 SC 3713; Manoranjan

Kalita Vs. The State of Assam, 2014 Cri.L.J. 689; State of MP Vs.

Rajendra Singh Yadav, AIR Online 2021 Chh 155; Pozir Uddin

Ahmed Vs. Union of India, 2014 Cri.L.J. 238; M. Krishna Reddy Vs.

State Deputy Superintendent of Police, Hyderabad, (1992) 4 SCC

45; Krishnanand Agnihotri Vs. State of MP, AIR 1977 SC 796;

Ashok Kumar Thakur Vs. State of Rajasthan, 2008 SCC Online Raj

777, DSP Chennai Vs. K. Inbasagaran, AIR 2006 SC 552 and State

of Chhattisgarh Vs. Chandrabhushan Shukla, AIR Online 2019

Chh 1125.

07. On the other hand, learned counsel for the State supporting the

impugned judgment submits that the Special Judge is absolutely

justified in holding that the appellant possessed properties which are

disproportionate to his valid known source of income and therefore, the

present appeal being without any substance is liable to be dismissed.

08. Heard learned counsel for the parties and perused the material

available on record.

09. Before the learned trial Court, this is an admitted fact that the

appellant was married on 3rd June, 1982 with Shakuntala, resident of

Village-Devri and that the eldest son of the appellant Vivek Mehra had

taken loan and purchased a vehicle which was being used on rent. It is

also an admitted fact that the appellant was an employee of Indian

Post and Telegram Department as Postal Assistant since 1982 and

worked there up to August, 1987 and thereafter, he was selected as

Cooperative Extension Officer and since August, 1988 he worked as

Cooperative Extension Officer. It is also not in dispute that Shakuntala

Mehra purchased a house by sale deed dated 19.9.2003 from PK

Manoharan and one house by sale deed dated 4.5.2010 from one

Madhavram and others. Vikas Mehra purchased the land bearing

Khasra No.619, area 6.63 acres by sale deed dated 26.4.2006 from

Mayaram and Khasra No.411, area 0.14 acre and Khasra No.419, area

0.52 acre were purchased by sale deed dated 7.6.2010 from

Deendayal and others. Further, it is also admitted that the land bearing

Khasra No.1099, area 0.46 acre was purchased by sale deed dated

7.6.2010 by Vikas Mehra from Deendayal and that land bearing Khasra

No.469, area 0.14 acre, Khasra No.470, area 0.38 acre, Khasra

No.471, area 0.28 acre were purchased through sale deed dated

9.6.2005 from Bhanu Kumar and others by Shakuntala and others and

likewise, land bearing Khasra No.618/01, 618/02 area 1.83 acre was

purchased by Shakuntala and others vide sale deed dated 24.6.1998

from Rameshwar and others.

10. As per the FIR, the check period was from 1.9.2003 to

10.3.2011 and during this period, income of the appellant was

calculated as Rs.38,10,556/-. Valuation of the movable and immovable

properties of the appellant was calculated at Rs.76,93,008/- and the

expenditure during the check period was assessed at Rs.36,61,439/-

and the unaccounted money is calculated at Rs.75,43,891/-.

11. PW-31 Anil Baxi, the investigating officer, in his detailed

examination accepted various documents. Article 95 to Article 136 are

various policies in the names of Shakuntala Mehra, Vikas Mehra and

Vivek Mehra whereas Articles 138 to 140 are the insurance policies

and Kisan Vikas Patra in the name of Shakuntala Mehra. Articles 141

to 151 are the bank passbooks of Shakuntala Mehra, Geetabai Mehra

and Vikas Mehra. Jewellery bill and cash memo are Articles 152 and

153 in the name of Vikas Mehra. Articles 156, 158, 159 and 160 are

the jewellery bills in the name of Shakuntala Mehra. The prosecution

exhibited number of documents which were not only in the name of the

appellant but in the names of his wife, sons and even his daughter-in-

law.

12. The trial Court recorded a finding in para 114 of the impugned

judgment that the prosecution has not proved that the earning from the

sale of vehicle bearing No.CG 10 F 1317 and the expenditure of the

difference of transfer of the said property, house construction

expenditure, entire jewelleries expenditure, three houses shown in the

inventory and the agriculture produce obtained from the land situate at

Village-Kekti, the policies of Geeta Rajaram, CS Mehra etc., are the

expenditure of the appellant but as per the documents filed, it is proved

that the appellant acquired properties in excess of his income during

the check period.

In para 115 of the impugned judgment, the trial Court has drawn

a table and calculated the expenditure of the appellant during the

check period and in the table at para 116, the vehicle purchase amount

is mentioned as Rs.8,59,808/- and again vehicle purchase amount is

mentioned in the said table as Rs.11,53,193/-. However, no reason has

been assigned or any explanation given by the trial Court as to on what

basis two different amounts have been mentioned under the same

head.

13. Rajaram Mehra (DW-7) states in examination-in-chief that in

May-June, 2005 he purchased 80 decimal of land with his sister-in-law

(appellant's wife) Shakuntala Mehra in Village-Kekti and in 1998

Shakuntala Mehra purchased two acres of land in Village-Kekti. DW-8

Jyoti Mehra, daughter-in-law of the appellant, states in examination-in-

chief that since 1.4.2008 she was working as teacher in Mahamaya

Public School, Ratanpur and her experience certificate is Ex.D/13. Her

father had given her Rs.2 lacs as gift and she was running a shop in

the name of Daisy Travels and Shringar with her husband Vivek

Mehra. She filed income tax returns Exs.D/14 & D/15 of the years

2009-10 and 2010-11 respectively.

14. DW-9 Jayprakash Mehra exhibited the documents of income tax

return as EXs.D/6, D/7 of Shakuntala Mehra and D/16, D/17 & D/18 of

Vikas Mehra. DW-10 Shakuntala Mehra states in her examination-in-

chief that she purchased land in 1996 from her Stridhan i.e. gold

ornaments and her father-in-law got the said land registered in her

name in 1998. She states that the house in Shantinagar is also in her

name since 2003 and that she purchased 80 decimal of land in June,

2005 with her brother-in-law.

15. The prosecution has also filed number of property papers in the

name of Shakuntala, Vikas and Vivek Mehra. In these circumstances,

the prosecution has to prove this fact beyond all reasonable doubt that

all these properties were purchased by the appellant in the name of his

family members from his own income but the prosecution did not

examine any witness in this regard or file any document which shows

that these properties were purchased by the appellant. The defence

witnesses have clearly stated that the appellant's wife, his major son

and daughter-in-law are earning members.

16. The investigating officer Anil Baxi (PW-31) admitted this fact in

para 65 of his deposition that he did not enquire from Shakuntala

Mehra regarding acquisition of said property. This witness prepared

inventory but admitted in para 74 that the documents of Ex.P/3 and P/4

are not in his handwriting. In reply to the question put to this witness by

the Court as to what does he mean by mentioning in page number 2 of

Ex.P/3 "one big size almirah worth about 15 years", he states that the

appellant had told that the big size almirah is about 15 years old and

therefore, before mentioning its value, "about 15 years" was written. In

para 79 again he admits that at Sl.No.7 of page No.3 of Ex.P/3 the

weight of silver plate "about 348 gm" is written at the instance of the

appellant after obtaining opinion of the independent witnesses and

whether the said plate was of silver, was not got examined from

anyone but was written at the instance of the appellant and the

witnesses.

17. In para 80, PW-31 Anil Baxi admits that weight of the silver tray

mentioned at Sl.No.8 of page No.3 of Ex.P/3 is not written. He could

not enquire about the weight of the said silver plate. He admits that had

he got weighment of all those silver articles mentioned in Ex.P/3 done

from any goldsmith, then their weight and genuineness could have

been ascertained. He expressed his inability to tell the price of silver at

the relevant time. He admits that he did not enquire as to how old the

said silver articles were. In para 83 he admits that he cannot tell that

out of 48 numbers of saris, how many saris were synthetic, georgette,

silk, cotton, banarsi and how old they were, and on being asked it

could have been told by Shakuntala Mehra but admittedly, it has not

been written in his inventory that Shakuntala Mehra was asked about

the same. In para 94 he states that he did not mention in the inventory

that the jewelleries shown at Sl.No.54,55, 56 of page No.4 of Ex.P/6

are of 23 carat. He cannot tell the weight of golden nose-pin mentioned

at Sl.No.59 of page No.5 of Ex.P/3 because it has not been mentioned

in the inventory. The golden jewelleries shown at Sl.No.60 to 63 of

page No.5 of Ex.P/3 were of 23 carat, has not been mentioned in the

inventory. He admits that he has not got any training of examining the

carat of golden jewelleries, and volunteers that he can tell on the basis

of experience.

In para 95 he admits that had the jewelleries mentioned at

Sl.No.52 to 56 and 59 to 63 of page No.4 of Ex.P/3 been examined by

a goldsmith, its genuineness and weight could have been ascertained

and on that basis, its value at that time could have been known. At

Sl.No.5 of page No.5 of Ex.P/3 beads necklace is mentioned, but he

cannot tell as to how many beads were there, what was the size of

beads and necklace and whether the beads were genuine or fake. He

volunteers that if the beads necklace was fake, the same would have

been mentioned in the inventory. He admits that it has not been

mentioned that the necklace was genuine and further clarifies that the

necklace was genuine, therefore, it was not written. However, he

admits that he has no experience of distinguishing beads.

18. Thus, from perusal of deposition of the investigating officer PW-1

Anil Baxi, it is clear that this witness has mentioned the articles in

Ex.P/3 without getting the same valued by any valuer, on the basis of

his own or at the instance of the appellant and/or the witnesses. It is

also admitted by the prosecution that before the check period, the

appellant was posted in other department but his salary before the

check period was not calculated by the prosecuting agency.

19. In the matter of Rajendra Singh Yadav (supra), this Court

referring to various judgments of the Hon'ble Supreme Court held in

paras 9, 10 and 11 as under:

"9. In order to prove the charge under Section 13(1)(e) of the PC Act, 1988, the prosecution must prove the following ingredients, namely (1) the prosecution must prove that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which are found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution, (4) it must prove quite objectively that the resources or property found in possession of the accused were disproportionate to his known source of income. Once the abovementioned ingredients are satisfactorily proved, the offence of criminal misconduct under Section 13(1)(e) of the PC Act, 1988 is complete, unless the accused is able to account for such resources or property and it is only thereafter the burden shifts to the accused to prove his innocence.

10.The Supreme Court in the matter of State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, AIR 1981 SC 1186, dealing with Section 5(1)(e) of the Prevention of Corruption Act, 1947 which is parimateria to Section 13(1)(e) of the PC Act, 1988, has held that the accused having been found in possession of disproportionate assets, he is duty bound to account satisfactorily for such possession. It was observed as under:

"13.....To substantiate the charge, the prosecution must prove the following facts before it can bring a case under S. 5(1)(e); namely, (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession,(3) it must be proved as to what were his known sources of income i.e. known to the prosecution, and (4) it must prove, quite objectively, that such resources or property

found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under S. 5(1)(e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets....."

11. Similarly, in the matter of M. Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad, AIR 1993 SC 313, Their Lordships of the Supreme Court again analyzing the provisions contained in Section 5(1)(e) of the Prevention of Corruption Act, 1947 (parimateria provision to Section 13(1)(e) of the Act of 1988) held that it is not the mere acquisition of property that constitute an offence under the provisions of the Act but it is the failure of accused to satisfactorily account for such possession that makes the possession objectionable as offending the law. Their Lordship further held that 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. It was observed as under:

"6. An analysis of Section 5(1)(e) of the Act, 1947 which corresponds to Section13(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.

7. To substantiate a charge under Section3(1)(c) of the Act, the prosecution must prove the following ingredients, namely, (1) the prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession (3) it must be proved as to what were his known sources of income, i.e. known to the prosecution and (4) it must prove,

quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. 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."

20. The investigating officer has also admitted this fact that he had

not investigated into this fact as to how many members of the

appellant's family were working and what was their financial condition.

The defence witnesses have clearly stated that major son of the

appellant Vivek Mehra is working and his wife also stated that she has

agricultural income but the prosecution did not investigate into this fact.

21. The Hon'ble Supreme Court in the matter of Krishnanand

Agnihotri (supra), held in para 25 as under:

"25. The next item of assets to which we must refer is the land at Varanasi which was purchased for Rs. 2,500/- in 1956. The sale deed of this land was in the name of Shanti Devi and hence it must be presumed, unless the contrary is shown by the prosecution, that the land belonged to Shanti Devi in whose name it was purchased and it stood in the records of the Municipal authorities. The case of the appellant was that this land was purchased by the father of Shanti Devi for her benefit and the consideration for the sale was also provided by the father of Shanti Devi. Ramadhar Avasthi D. W. 22, the father of the first husband of Shanti Devi, clearly stated in his evidence that Anant Ram, the father of Shanti Devi had purchased a plot of land for Shanti Devi for Rs.

2,500/- and this was supported by Bachhalal D. W. 11 who was one of the attesting witnesses to the sale deed. It is indeed difficult to see how this evidence led on behalf of the appellant could be brushed aside and without any evidence whatsoever led on behalf of the prosecution, it could be concluded that the purchase price of the land was paid by the appellant and that the land was purchased by the appellant in the name of Shanti Devi. We must, therefore, exclude this land in computing the total assets belonging to the appellant."

In the present case also, wife of the appellant has clearly stated

that she purchased the agricultural land from her Stridhan with support

of her father-in-law and that she purchased land with her brother-in-

law. Without any evidence led on behalf of the prosecution, it cannot

be proved that the purchase price of the land was paid by the

appellant.

22. In the case of Manoranjan (supra), the Hon'ble Supreme Court

held in paras 19 & 20 as under:

"19. Merely submitting a list of assets and liabilities is not enough to attract the offence under Section 13(1)(c) of the PC Act. Someone has to prove the correctness of the entries made in such a list.

20. In order to sustain an offence, under Section 13(1)(e) read with Section 13(2) of the PC Act, 188, three essential conditions are required to be satisfied. Firstly, the prosecution has the burden to prove that the value of the property or properties, which the accused was alleged to have had in possession, either personally or through any member(s) of his family. Secondly, there must be proof of

known source of income and, thirdly, there must be proof that properties, in question, are disproportionate to known source of income. In short, thus, the prosecution ought to have, in the present case, disclosed, on record, with the help of evidence, as to what known source of income of the accused-appellant had been. If mere valuation of property of the accused is given without providing or adducing any evidence with regard to the income of the accused from his known source, the prosecution cannot be said to have discharged its burden of having proved the offence, under Section 13(1)(e) read with Section 13(2) of the PC Act, 1988, and, until the prosecution discharges its initial burden of proving its case, the onus does not shift to the accused to satisfy the Court with his explanation, by adducing evidence, that either the valuation of his property has not been correctly done, or that his known source of income, or in the light of his known source of his income, he has never been in possession of property or properties disproportionate to his known source of income."

In the case in hand also, the inventory was prepared by the

investigating officer and valuation of all the articles was written only on

the basis of experience or presumption. The investigating officer has

admitted that he did not got valuation of the golden and silver

ornaments done from any goldsmith or any other competent person.

23. In the matter of DSP, Chennai (supra), the Hon'ble Apex Court

held in para 16 as under:

"16. Now, in this background, when the accused has come forward with the plea that all the money which has been recovered from his house and purchase of real

estate or the recovery of the gold and other deposits in the Bank, all have been owned by his wife, then in that situation how can all these recoveries of unaccounted money could be laid in his hands. The question is when the accused has provided satisfactorily explanation that all the money belonged to his wife and she has owned it and the Income-tax Department has assessed in her hand, then in that case, whether he could be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband or as the case may be, it cannot be fastened on the husband or head of family. It is true that the prosecution in the present case has 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 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."

In this case also, the appellant's wife, son and brother have

clearly stated about their separate income but the learned trial Court

did not appreciate this fact and assigned no particular reason to

disbelieve the evidence of the defence witnesses, especially the

statement of earning wife, major son and daughter-in-law of the

appellant. It is not proved by the prosecution on the basis of legal and

cogent evidence that the aforesaid properties were purchased by the

appellant in the name of his wife, son and brother. All the defence

evidence has been disbelieved by the trial Court without giving any

definite finding on the issue. In this case, the offence of

disproportionate property has been registered against the appellant on

the basis of suspicion, assumption and presumption as is evident from