Jharkhand High Court

Ashutosh Kumar vs Union Of India Through Cbi ... Opposite ... on 12 December, 2023

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

1 Criminal Revision No. 1081 of 2022
With
Criminal Revision No. 1084 of 2022
With
Criminal Revision No. 1085 of 2022

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 1081 of 2022
Ashutosh Kumar ... Petitioner
-Versus-
Union of India through CBI ... Opposite Party
With
Criminal Revision No. 1084 of 2022
Chaynika Kumari ... Petitioner
-Versus-
Union of India through CBI ... Opposite Party
With
Criminal Revision No. 1085 of 2022
Keshav Vats ... Petitioner
-Versus-
Union of India through CBI ... Opposite Party
-----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

-----

            For the Petitioners      : Mr. Indrajit Sinha, Advocate
                                       Mr. Ankit Vishal, Advocate
                                       Mr. Rishav Kumar, Advocate
            For the CBI              : Mr. Anil Kumar, A.S.G.I.
                                       Mr. Nitish Parth Sarthi, A.C. to A.S.G.I.
                                            -----

10/12.12.2023     All these three cases are arising out of same FIR, however, discharge

and charge orders are different and in view of that, all these cases are

being heard together with consent of the parties.

2. Heard Mr. Indrajit Sinha, learned counsel for the petitioners and

Mr. Anil Kumar, learned A.S.G.I., appearing for the CBI.

3. In all these petitions, the prayer is made for quashing the orders

dated 12.08.2022 passed by the learned Special Judge, CBI, Ranchi in

connection with R.C. Case No.17(A)/2016-R registered for the offences

under Section 109 of the Indian Penal Code and under Section 13(2) read

with Section 13(1)(e) of the Prevention of Corruption Act, 1988, whereby,

discharge petitions filed under Section 227 of Cr.P.C. by the petitioners have 2 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

been rejected. The prayer is also made for quashing the order dated

21.11.2022 passed by the learned Additional Judicial Commissioner-XVII

cum Special Judge, CBI, Ranchi, whereby charges have been framed against

the petitioners under Section 109 of the Indian Penal Code and under

Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988.

4. The FIR was lodged alleging therein that the petitioner-Ashutosh

Kumar was working as Deputy General Manager, MSME Tool Room,

Jamshedpur (Indo Danish Tool Room), Ministry of Micro, Small and Medium

Enterprises, Government of India and he had acquired pecuniary resources

and property disproportionate to his known source of income to the tune of

Rs.1,40,37,414/- during the check period 01.04.2007 to 23.09.2016 which

cannot be satisfactorily accounted for by the accused persons. It was

further alleged by the prosecution that after investigation, the petitioner-

Ashutosh Kumar while working and being posted in different capacities at

Indo Danish Tool Room, Jamshedpur during the check period 01.04.2007 to

07.10.2016 was in possession of assets in his own name and in the name of

his family members which is disproportionate to the known source of

income to the tune of Rs.1,96,97,628/-. It was also alleged by the

prosecution that the petitioners-Keshav Vats and Chaynika Kumari abetted

Ashutosh Kumar in acquisition of assets beyond the known sources of

income and in dealing with unaccounted money.

5. Mr. Indrajit Sinha, learned counsel for the petitioners at the outset

submits that the petitioner-Ashutosh Kumar has earlier moved before this

Court in W.P.(Cr.) No.112 of 2022 challenging the sanction order, which was

dismissed by this Court vide order dated 20.09.2023 and the said order has 3 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

been affirmed by the Hon'ble Supreme Court. He further submits that the

charge orders with regard to the petitioners are not in accordance with law

and parameters of charge have not been considered by the learned Court

and the petitions filed for discharge have been rejected. He submits that the

father-in-law of the petitioner-Ashutosh Kumar retired from the Government

service and he received huge amount of retiral benefit apart from retiral

benefit, he also had income from the agricultural land situated at his native

village prior to check period as such at the beginning of the check period,

the father-in-law of the petitioner-Ashutosh Kumar was also having amount

of Rs.5 Lakhs which was intentionally not considered by the CBI. He further

submits that in the charge-sheet, there is nothing against the petitioner-

Ashutosh Kumar and in view of that, he is required to be discharged.

6. Mr. Indrajit Sinha, learned counsel for the petitioners further submits

that the case of the petitioner-Chaynika Kumari has been rejected by the

leaned Court without appreciating the proposition of law in its right

direction. He also submits that the Investigation Officer overlooked the

income certificates and documents in support of agricultural income and

income from dairy business of father-in-law of the petitioner and assets

have been undervalued by the authority without any reason. He submits

that the petitioner-Chaynika Kumari has not participated in disproportionate

income of the petitioner-Ashutosh Kumar and in view of that and in light of

the allegation, no case is made out so far as the petitioner-Chaynika Kumari

is concerned. He further submits that in view of Section 107 of the Indian

Penal Code, abetment is not attracted so far as the petitioners- Chaynika

Kumari and Keshav Vats are concerned. He submits that the entire 4 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

allegations against them are made after the alleged disproportionate income

gathered by Ashutosh Kumar and in view of that, the learned Court has not

passed the orders in accordance with law. To buttress this argument, he

relied upon the judgment passed in the case of State by S.P. through

the SPE CBI v. Uttamchand Bohra, reported in 2021 SCC OnLine SC

1208. Paragraphs 24 and 31 of the said judgment are quoted hereinbelow:

"24. The chargesheet further does not contain any allegation which can amount to an offence under Section 109 IPC. The prosecution has not suggested that he abetted A-1 to acquire disproportionate assets in any manner; the only allegation is that the title deeds to the flat, which is in the name of M/s. Raviteja Trading Co. Pvt. Ltd. was seized from his custody and that he had instructed his employee to witness the document. An allegation of the existence of signatures of Uttamchand's employee, as a witness to the sale deed cannot amount to his aiding or abetting A-1 to acquire disproportionate assets. Witnessing a sale deed is a formal requirement. Likewise, the fact that the sale deed was in Uttamchand's residence cannot satisfy the ingredient of any of the offences alleged against him.

xxx xxx xxx

30. This Court explained the essence of conspiracy in the context of acts or omissions, and allegations relating to conspiracy along with offences under the PCA, in K. Narayana Rao (supra), and observed that:

"24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of

5 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence."

31. The material to implicate someone as a conspirator acting in concert with a public servant, alleged to have committed misconduct, under the PCA, or amassed assets disproportionate to a public servant's known sources of income, thus, has to be on firm ground. In the present case, only two circumstances - the custody of the sale deed (of the property allegedly belonging to A-1) and the fact that it was witnesses by Uttamchand's employee - are alleged against the respondent. These are wholly insufficient to raise a reasonable suspicion, or make out a prima facie case against him, for conspiracy."

Relying on this judgment, he submits that an offence of conspiracy

cannot be deemed to have been established on mere suspicion and

surmises for reference which are not supported by acceptable evidence and

in view of this judgment, the case of the petitioners are covered and the

petitioners may kindly be discharged.

7. Mr. Indrajit Sinha, learned counsel for the petitioners further submits

that there are parameters of considering the discharge petitions and the

Court is not merely a post office. The satisfaction is required for framing of

the charge that too must be on some material. To buttress this argument,

he relied upon the judgment passed in the case of Dipakbhai

Jagdishchandra Patel v. State of Gujarat and another , reported in

(2019) 16 SCC 547. Paragraph 23 of the said judgment is quoted

hereinbelow:

"23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not 6 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence."

Relying on this judgment, Mr. Indrajit Sinha, learned counsel for the

petitioners submits that the petitioners-Chaynika Kumari and Keshav Vats

are required to be discharged and in view of that, the impugned orders may

kindly be set aside.

8. Mr. Indrajit Sinha, learned counsel for the petitioners further submits

that no evidence is there with the CBI to suggest that the property of

Ashutosh Kumar was utilized by Chaynika Kumari and Keshav Vats for

repayment of loan amount.

9. The said argument of Mr. Indrajit Sinha, learned counsel for the

petitioners is being resisted by Mr. Anil Kumar, learned A.S.G.I., appearing

for the CBI. He draws attention of the Court to the charge-sheet annexed

with the criminal revision petitions and submits that it has been revealed

that during the check period from 01.04.2007 to 07.10.2016, the petitioner-

Ashutosh Kumar and his family members were having an income of

Rs.1,80,61,384/- from all known sources which were mainly from salary,

interest accruing in the bank accounts and postal accounts, mutual funds,

NSCs, rental income, agriculture etc. Out of as total income of the family

during the check period amounting to Rs.1,80,61,384/-, the income of the 7 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

petitioner-Ashutosh Kumar and his two sons comes to Rs.1,02,20,365/- and

the income of the petitioner-Chaynika Kumari comes to Rs.78,41,019/-. He

submits that Statement-C is there in the charge-sheet, which reveals the

said calculation. He further submits that the income of the petitioner-

Chaynika Kumar was also bifurcated in the charge-sheet. He also submits

that in the charge-sheet, it has also been revealed that Chaynika Kumari

has filed her Income Tax Returns during the check period wherein she has

claimed her income from various sources. She has claimed her income from

agriculture which has been taken into account while calculating her income.

She has further claimed her income from house property which has also

been taken into account while calculating her income. She has also claimed

her income in the ITRs from business/consultancy/profession and during

investigation, notice was sent for producing the documents related to

business/consultancy/profession, which could not be made available for

investigation. During examination, she has claimed that she was having

income by way of providing private tuition for which she did not maintain

any record. The benefit of this income has not been given while computing

the extent of DA as the income claimed in the ITR differs from the claim

during her examination and also because she has claimed this income under

different heads during the check period i.e. profession, consultancy,

business. He submits that the expenditure of the petitioner-Ashutosh Kumar

and his family members is disclosed in Statement-D of the charge-sheet. He

further submits that expenditure of the petitioner-Chaynika Kumari is also

mentioned in the charge-sheet at internal page 29. He further submits that

the claim of repayment of loan amount by the petitioner-Keshav Vats out of 8 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

his own income was considered and it has been revealed that three loans

were availed from Central Bank of India, Adityapur in the name of Keshav

Vats and Chaynika Kumari and the loan amounts have been transferred in

the account of the Keshav Vats. The said details have been mentioned at

internal page 38 of the charge-sheet. It has also been revealed that two

loans were availed by mortgaging an FD in the name of Chaynika Kumari.

The petitioners-Ashutosh Kumar and Chaynika Kumari claimed that the said

loans were actually taken by Keshav Vats, who himself has repaid the loan

amount in cash. Keshav Vats also claimed that the said loans were used by

him and he has repaid the entire amount in cash out of his own earning

from his works executed as civil contractor, but during investigation, it was

found that Keshav Vats was not having sufficient income to repay the loan

amount. He submits that Keshav Vats claimed to be a contractor, but he

could not produce any agreement where he had executed work during the

relevant period. He neither has any books of account nor has any document

to show that he was a civil contractor. He has not filed his ITRs during the

relevant period. Keshav Vats has filed his ITRs in the year 2017 after

registration of the case. He further submits that it has also been revealed

during investigation that the first loan of Rs.10 Lakhs was invested as Fixed

Deposit without utilizing the loan amount and in view of that, the CBI has

found the case true against all the petitioners. He further submits that

parameters of discharge petition was considered by the Hon'ble Supreme

Court in the case of State of Tamilnadu v. R. Soundirarasu and

others, reported in (2023) 6 SCC 768. Paragraphs 34 to 40 of the said

judgment are quoted hereinbelow:

9 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

"34. Section 13(1)(e) of the 1988 Act including Explanation thereto reads as under:

"13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct--

* * *

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

Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."

35. The Explanation to Section 13(1)(e) defines the expression "known sources of income" and states that this expression means the income received from any lawful source and also requires that the receipt should have been intimated by the public servant in accordance with any provisions of law, rules or orders for the time being applicable to a public servant. This Explanation was not there in the Prevention of Corruption Act, 1947 (for short "the 1947 Act"). Noticing this fact in Jagan M. Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N., (2002) 9 SCC 639 : 2003 SCC (L&S) 1494] , this Court has observed as under : (SCC p. 642, para 7) "7. A bare reading of Section 30(2) of the 1988 Act shows that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of the Act. It does not substitute Section 13 in place of Section 5 of the 1947 Act. Section 30(2) is applicable 'without prejudice to the application of Section 6 of the General Clauses Act, 1897'. In our opinion, the application of Section 13 of the 1988 Act to the fact situation of the present case would offend Section 6 of the General Clauses Act, which, inter alia provides that repeal shall not (i) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or (ii) affect any investigation, legal proceedings or remedy in respect of any such rights, privilege, obligation, penalty, forfeiture or punishment. Section 13, both in the matter of punishment as also by the addition of the Explanation to Section 13(1)(e) is materially different from Section 5 of the 1947 Act. The presumption permitted to be raised under the Explanation to Section 13(1)(e) was not available to be raised under Section 10 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

5(1)(e) of the 1947 Act. This difference can have a material bearing on the case."

36. The Explanation to Section 13(1)(e) of the 1988 Act has the effect of defining the expression "known sources of income" used in Section 13(1)(e) of the 1988 Act. The Explanation to Section 13(1)(e) of the 1988 Act consists of two parts. The first part states that the known sources of income means the income received from any lawful source and the second part states that such receipt should have been intimated by the public servant in accordance with the provisions of law, rules and orders for the time being applicable to a public servant.

37. Referring to the first part of the expression "known sources of income" in N. Ramakrishnaiah v. State of A.P. [N. Ramakrishnaiah v. State of A.P., (2008) 17 SCC 83 : (2010) 4 SCC (Cri) 454] , this Court observed as under : (SCC pp. 86- 87, para 17) "17. '... 6. The emphasis of the phrase "known sources of income" in Section 13(1)(e) [old Section 5(1)(e)] is clearly on the word "income". It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term "income" by itself, is elastic and has a wide connotation. Whatever comes in or is received is income. But, however, wide the import and connotation of the term "income", it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investment, and being further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "Income". Therefore, it can be said that, though "income" in receipt in the hand of its recipient, every receipt would not partake the character of income. Qua the public servant, whatever return he gets from his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft crime or immoral secretions by persons prima facie would not be receipt from the "known source of income" of a public servant.' [Ed. : As observed in State of M.P. v. Awadh Kishore Gupta, (2004) 1 SCC 691 at p. 697, para 6] "

38. The above brings us to the second part of the Explanation, defining the expression "such receipt should have been intimated by the public servant" i.e. intimation by the public servant in accordance with any provisions of law, rules or orders applicable to a public servant.

39. The language of the substantive provisions of Section 5(3) of the 1947 Act before its amendment, Section 5(1)(e) of the 1947 Act and Section 13(1)(e)of the 1988 Act continues to be the same though Section 5(3) before it came to be 11 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

amended was held to be a procedural section in Sajjan Singh v. State of Punjab [Sajjan Singh v. State of Punjab, AIR 1964 SC 464] . Section 5(3) of the 1947 Act before it came to be amended w.e.f. 18-12-1964 was interpreted in C.S.D. Swami v. State [C.S.D. Swami v. State, AIR 1960 SC 7] , and it was observed : (C.S.D. Swami case [C.S.D. Swami v. State, AIR 1960 SC 7] , AIR pp. 10-11, paras 5-6) "5. Reference was also made to cases in which courts had held that if plausible explanation had been offered by an accused person for being in possession of property which was the subject-matter of the charge, the court could exonerate the accused from criminal responsibility for possessing incriminating property. In our opinion, those cases have no bearing upon the charge against the appellant in this case, because the section requires the accused person to "satisfactorily account" for the possession of pecuniary resources or property disproportionate to his known sources of income. Ordinarily, an accused person is entitled to acquittal if he can account for honest possession of property which has been proved to have been recently stolen [see Illustration (a) to Section 114 of the Evidence Act, 1872]. The rule of law is that if there is a prima facie explanation of the accused that he came by the stolen goods in an honest way, the inference of guilty knowledge is displaced. This is based upon the well-established principle that if there is a doubt in the mind of the court as to a necessary ingredient of an offence, the benefit of that doubt must go to the accused. But the legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily", and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the court that his explanation was worthy of acceptance.

6. Another argument bearing on the same aspect of the case, is that the prosecution has not led evidence to show as to what are the known sources of the appellant's income. In this connection, our attention was invited to the evidence of the investigating officers, and with reference to that evidence, it was contended that those officers have not said, in terms, as to what were the known sources of income of the accused, or that the salary was the only source of his income. Now, the expression "known sources of income" must have reference to sources known to the prosecution on a thorough investigation of the case. It was not, and it could not be, contended that "known sources of income" means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge"

12 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

of the accused, within the meaning of Section 106 of the Evidence Act. The prosecution can only lead evidence, as it has done in the instant case, to show that the accused was known to earn his living by service under the Government during the material period. The prosecution would not be justified in concluding that travelling allowance was also a source of income when such allowance is ordinarily meant to compensate an officer concerned for his out-of-pocket expenses incidental to journeys performed by him for his official tours. That could not possibly be alleged to be a very substantial source of income. The source of income of a particular individual will depend upon his position in life with particular reference to his occupation or avocation in life. In the case of a government servant, the prosecution would, naturally, infer that his known source of income would be the salary earned by him during his active service. His pension or his provident fund would come into calculation only after his retirement, unless he had a justification for borrowing from his provident fund. We are not, therefore, impressed by the argument that the prosecution has failed to lead proper evidence as to the appellant's known sources of income. It may be that the accused may have made statements to the investigating officers as to his alleged sources of income, but the same, strictly, would not be evidence in the case, and if the prosecution has failed to disclose all the sources of income of an accused person, it is always open to him to prove those other sources of income which have not been taken into account or brought into evidence by the prosecution."

(emphasis supplied)

40. Even after Section 5(3) was deleted and Section 5(1)(e) was enacted, this Court in Wasudeo Ramchandra Kaidalwar [State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, (1981) 3 SCC 199 : 1981 SCC (Cri) 690] has observed that the expression "known sources of income" occurring in Section 5(1)(e) has a definite legal connotation which in the context must mean the sources known to the prosecution and not sources relied upon and known to the accused. Section 5(1)

(e), it was observed by this Court, casts a burden on the accused for it uses the words "for which the public servant cannot satisfactorily account". The onus is on the accused to account for and satisfactorily explain the assets. Accordingly, in Wasudeo Ramchandra Kaidalwar [State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, (1981) 3 SCC 199 : 1981 SCC (Cri) 690] it was observed : (SCC pp. 204-205, paras 11-

13) "11. The provisions of Section 5(3) have been subject of judicial interpretation. First the expression "known sources of income" in the context of Section 5(3) meant "sources known to the prosecution". The other 13 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

principle is equally well-settled. The onus placed on the accused under Section 5(3) was, however, not to prove his innocence beyond reasonable doubt, but only to establish a preponderance of probability. These are the well-settled principles : see C.S.D. Swami v. State [C.S.D. Swami v. State, AIR 1960 SC 7] ; Sajjan Singh v. State of Punjab [Sajjan Singh v. State of Punjab, AIR 1964 SC 464] and V.D. Jhingan v. State of U.P. [V.D. Jhingan v. State of U.P., AIR 1966 SC 1762] The legislature thought it fit to dispense with the rule of evidence under Section 5(3) and make the possession of disproportionate assets by a public servant as one of the species of the offence of criminal misconduct by inserting Section 5(1)(e) due to widespread corruption in public services.

12. The terms and expressions appearing in Section 5(1)(e) of the Act are the same as those used in the old Section 5(3). Although the two provisions operate in two different fields, the meaning to be assigned to them must be the same. The expression "known sources of incomes" means "sources known to the prosecution". So also, the same meaning must be given to the words "for which the public servant cannot satisfactorily account" occurring in Section 5(1)(e). No doubt, Section 4(1) provides for presumption of guilt in cases falling under Sections 5(1)(a) and (b), but there was, in our opinion, no need to mention Section 5(1)(e) therein. For, the reason is obvious. The provision contained in Section 5(1)(e) of the Act is a self- contained provision. The first part of the section casts a burden on the prosecution and the second on the accused. When Section 5(1)(e) uses the words 'for which the public servant cannot satisfactorily account', it is implied that the burden is on such public servant to account for the sources for the acquisition of disproportionate assets. The High Court, therefore, was in error in holding that a public servant charged for having disproportionate assets in his possession for which he cannot satisfactorily account, cannot be convicted of an offence under Section 5(2) read with Section 5(1)(e) of the Act unless the prosecution disproves all possible sources of income.

13. That takes us to the difficult question as to the nature and extent of the burden of proof under Section 5(1)(e) of the Act. The expression "burden of proof"

has two distinct meanings (1) the legal burden i.e. the burden of establishing the guilt, and (2) the evidential burden i.e. the burden of leading evidence. In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and that burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case

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of certain offences, the burden of proving a particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. The ingredients of the offence of criminal misconduct under Section 5(2) read with Section 5(1)

(e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the following facts before it can bring a case under Section 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 Section 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. The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under Section 5(1)(e) cannot be higher than the test laid by the Court inJhingan case [V.D. Jhingan v. State of U.P., AIR 1966 SC 1762] i.e. to establish his case by a preponderance of probability. That test was laid down by the court following the dictum of Viscount Sankey, L.C., inWoolmington v. Director of Public Prosecutions [Woolmington v. Director of Public Prosecutions, 1935 AC 462 (HL)]. The High Court has placed an impossible burden on the prosecution to disprove all possible sources of income which were within the special knowledge of the accused. As laid down inSwami case [C.S.D. Swami v. State, AIR 1960 SC 7], the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income i.e. his salary. Those will be matters specially within the knowledge of the public servant within the meaning of Section 106 of the Evidence Act, 1872. Section 106 reads:

'106.Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.' In this connection, the phrase the "burden of

15 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

proof" is clearly used in the secondary sense, namely, the duty of introducing evidence. The nature and extent of the burden cast on the accused is well-settled. The accused is not bound to prove his innocence beyond all the reasonable doubt. All that he need to do is to bring out a preponderance of probability."

(emphasis supplied)"

10. Mr. Anil Kumar, learned A.S.G.I., appearing for the CBI further submits

that in the said judgment, the scope of revision has been considered in

paragraphs 78 to 83, which are quoted hereinbelow:

"78. In Munna Devi v. State of Rajasthan [Munna Devi v. State of Rajasthan, (2001) 9 SCC 631 : 2002 SCC (Cri) 775] , this Court held as under : (SCC p. 632, para 3) "3. ... The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."

79. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with the appellate power. A Revisional Court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure.

80. This Court in Asian Resurfacing of Road Agency (P) Ltd. v. CBI [Asian Resurfacing of Road Agency (P) Ltd. v. CBI, (2018) 16 SCC 299 : (2020) 1 SCC (Cri) 686] , has held that interference in the order framing charges or refusing to discharge is called for in the rarest of rare case only to correct the patent error of jurisdiction.

81. The High Court has acted completely beyond the settled parameters, as discussed above, which govern the power to 16 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

discharge the accused from the prosecution. The High Court could be said to have donned the role of a chartered accountant. This is exactly what this Court observed in Thommandru Hannah Vijayalakshmi [CBI v. Thommandru Hannah Vijayalakshmi, (2021) 18 SCC 135 : 2021 SCC OnLine SC 923] . The High Court has completely ignored that it was not at the stage of trial or considering an appeal against a verdict in a trial. The High Court has enquired into the materials produced by the accused persons, compared with the information compiled by the investigating agency and pronounced a verdict saying that the explanation offered by the accused persons deserves to be accepted applying the doctrine of preponderance of probability. This entire exercise has been justified on account of the investigating officer not taking into consideration the explanation offered by the public servant and also not taking into consideration the lawful acquired assets of the wife of the public servant i.e. Respondent 2 herein.

82. By accepting the entire evidence put forward by the accused persons applying the doctrine of preponderance of probability, the case put up by the prosecution cannot be termed as "groundless". As observed by this Court in C.S.D. Swami [C.S.D. Swami v. State, AIR 1960 SC 7] that the accused might have made statements before the investigating officer as to his alleged sources of income, but the same, strictly, would not be evidence in the case.

83. Section 13(1)(e) of the 1988 Act makes a departure from the principle of criminal jurisprudence that the burden will always lie on the prosecution to prove the ingredients of the offences charged and never shifts on the accused to disprove the charge framed against him. The legal effect of Section 13(1)(e) is that it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term "known sources of income" would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. It is for the accused to account satisfactorily for the money/assets in his hands. The onus in this regard is on the accused to give satisfactory explanation. The accused cannot make an attempt to discharge this onus upon him at the stage of Section 239CrPC. At the stage of Section 239CrPC, the court has to only look into the prima facie case and decide whether the case put up by the prosecution is groundless."

11. Relying on the above judgment, Mr. Anil Kumar, learned A.S.G.I.,

appearing for the CBI submits that the learned Trial Court has rightly passed

the orders as the orders are elaborate considering entire aspect and not

only the suspicion but the cogent materials are there against the petitioners 17 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

and in view of that, these criminal revision petitions may kindly be rejected.

12. The Court has gone through the materials on record including the

charge-sheet as well as the impugned orders, which are the subject matter

in all these criminal revision petitions. In the charge-sheet, it has been

revealed that the petitioners-Ashutosh Kumar and Chaynika Kumari have

adopted modus operandi for converting the unaccounted money into legal

money. For this purpose, multiple loans were being disbursed in the name

of the petitioners-Chaynika Kumari and Keshav Vats from Central Bank of

India, Adityapur Branch, created assets out of the same and repaid the loan

amount within very short period mostly in cash. By this method, they have

received legal money from the bank for which unaccounted money was

used for repayment of the loan amount. During the investigation, it was

found that the petitioner-Keshav Vats is a relative (maternal cousin) of

Ashutosh Kumar. In the investigation, it was further found that Keshav Vats

did not have sufficient income to refund such huge amount in very short

span of time. Keshav Vats has never filed his ITRs during the relevant

period of time. Rather, ITRs have been filed by him after registration of the

present case which is nothing but an afterthought. In the year 2013, a loan

of Rs.10 Lakhs was availed in the name of Keshav Vats from Central Bank of

India, Adityapur Branch by mortgaging a Fixed Deposit of Chaynika Kumari.

This loan amount of Rs.10 Lakhs was invested as fresh Fixed Deposit. The

total repayment against this loan amounting to Rs.10,41,803/- (including

interest) was made to the bank at Jamshedpur out of which Rs.7,85,000/-

was deposited in cash. In that way, the loan amount which has been

invested as Fixed Deposit is shown as legal and the repayment of loan by 18 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

cash out of unaccounted money. Further, another loan of Rs.15 Lakhs was

availed by the petitioner-Chaynika Kumari for renovation of house which

was also transferred in the account of Keshav Vats and the same was also

invested as Fixed Deposit. During check period i.e. 01.04.2007 to

07.10.2016, repayment of Rs.4.99 Lakhs towards the loan of Rs.15 Lakhs

was made through the account of Chaynika Kumari. Both the FDs have

been taken as assets of Chaynika Kumari by the investigating agency and

the details of loans availed in the name of Chaynika Kumari and Keshav Vats

are there in the charge-sheet, which has been noted in the arguments of

Mr. Anil Kumar, learned A.S.G.I., appearing for the CBI. Further, what are

the materials in the charge-sheet has been recorded in the arguments of

Mr. Anil Kumar, learned A.S.G.I. (supra). Thus, it is crystal clear that all

these petitioners are involved in disproportionate of assets case and they

have supported Ashutosh Kumar to justify the disproportionate income and

this was the modus operandi and in view of that, all were involved from the

very beginning to convert the disproportionate amount as legal money. Thus

in view of the facts of the present case, the argument of Mr. Indrajit Sinha,

learned counsel for the petitioners with regard to abetment is not accepted

by this Court and in view of that, the judgment relied by him in the case of

State by S.P. through the SPE CBI (supra) is not applicable in the facts and

circumstances of the present case.

13. The ambit and scope of exercise of power under Sections 239 and

240 CrPC, are fairly well settled. The obligation to discharge the accused

under Section 239 arises when the Magistrate considers the charge against

the accused to be "groundless". The section mandates that the Magistrate 19 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

shall discharge the accused recording reasons, if after: (i) considering the

police report and the documents sent with it under Section 173 CrPC, (ii)

examining the accused, if necessary, and (iii) giving the prosecution and the

accused an opportunity of being heard, he considers the charge against the

accused to be groundless i.e. either there is no legal evidence or that the

facts are such that no offence is made out at all. No detailed evaluation of

the materials or meticulous consideration of the possible defences need to

be undertaken at this stage nor any exercise of weighing materials in golden

scales is to be undertaken at this stage. The only consideration at the stage

of Sections 239/240 Cr.P.C. is as to whether the allegation/charge is

groundless or not.

14. Further, it is well settled that the revisional power cannot be equated

with appellate power. The Revisional Court cannot undertake meticulous

examination of the material on record as is undertaken by the Trial Court or

the Appellate Court.

15. Section 13(1)(e) of the Prevention of Corruption Act makes a

departure from the principle of criminal jurisprudence that the burden will

always lie on the prosecution to prove the ingredients of the offences

charged and never shifts on the accused to disprove the charge framed

against him. This aspect of the matter has been recently considered by the

Hon'ble Supreme Court in paragraph 83 of the judgment passed in the case

of State of Tamilnadu v. R. Soundirarasu, which has been discussed (supra).

16. In the above judgment, the Hon'ble Supreme Court has further

considered the scope of discharge in paragraphs 75 as well as revisional

power in paragraph 79 of the said judgment.

20 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

17. Thus, there is no doubt that the Court should not act as a Post Office

only. The materials should be there for framing of the charge and that

cannot be on suspicion i.e. the ratio of the judgment in the case of

Dipakbhai Jagdishchandra Patel (supra) , relied by Mr. Indrajit Sinha, learned

counsel for the petitioners and that is not in dispute. The learned Court has

not acted as Post Office. The materials are there as discussed hereinabove

and in view of that, the judgment relied by Mr. Sinha in the case of

Dipakbhai Jagdishchandra Patel (supra) is not applicable in the facts and

circumstances of the present case.

18. In the case in hand, it has been revealed that how modus operandi

has been adopted by these petitioners to make disproportionate amount as

a legal one. The High Court is not required to enter into the merits of the

case and to consider whether on the basis of materials on record, accused

is rightly to be convicted or not. The High Court is only required to consider

whether prima facie case was made out or not and whether the accused is

required to be further tried or not. This aspect of the matter has been

considered by the Hon'ble Supreme Court in several judgments and

reference of few of them will suffice the purpose. A reference may be made

to the judgment in the case of State of U.P. v. Uday Narayan and

others, reported in (1999) 8 SCC 741 and in the case of State of

Rajasthan v. Ashok Kumar Kashyap, reported in (2021) 11 SCC 191.

19. So far as the orders framing charge dated 21.11.2022 is concerned,

the Court finds that the said orders are in accordance with law. At the state

of framing charge, it is immaterial whether the case is based on direct or

circumstantial evidence. The charge can be framed if there are materials 21 Criminal Revision No. 1081 of 2022 With Criminal Revision No. 1084 of 2022 With Criminal Revision No. 1085 of 2022

showing possibility of commission of crime as against certainty. The relevant

circumstances was put to the accused and, thereafter, charge has been

framed. In view of that, the Court finds that there is no illegality in the

orders framing charge against the petitioners.

20. In view of the above facts, reasons and analysis, the Court finds that

there is no illegality in the impugned orders passed by the learned Court,

whereby, the discharge petitions filed by the petitioners have been rejected.

21. Accordingly, these criminal revision petitions are dismissed.

(Sanjay Kumar Dwivedi, J.) Ajay/ A.F.R.