Jharkhand High Court
Bharat Mishra Son Of Late Lal Bahadur ... vs The State Of Jharkhand Through C.B.I on 15 October, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 960 of 2003
Bharat Mishra son of Late Lal Bahadur Mishra, residing at Hirapur,
Dhanbad, Adarshnagar, P.S. and District- Dhanbad (Jharkhand)
... ... Appellant
-Versus-
The State of Jharkhand through C.B.I. ... ... Respondent
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellant : Mrs. Jasvindar Mazumdar, Advocate
For the Respondent : Mrs. Priya Shrestha, Spl. P.P.
Reserved on 25.07.2024 Pronounced on 15.10.2024
---
This criminal appeal has been filed against the judgment of conviction
and order of sentence dated 03.07.2003 passed by the learned Special
Judge, Vigilance, Dhanbad in Special Case No. 22 of 1992, arising out
of Vigilance P.S. Case No. 30 of 1992, whereby and whereunder the
appellant has been convicted under Section 5(2) of the Prevention of
Corruption Act, 1947 converted into corresponding Section 13(2) r/w
13(1)(e) of the Prevention of Corruption Act, 1988 and has been
sentenced to undergo Rigorous Imprisonment for two years with fine
of Rs.4,000/- for offence under Section 13(2) of the P.C. Act and in
default of payment of fine, to undergo Simple Imprisonment for two
months.
Arguments on behalf of the appellant
2. Learned counsel appearing for the appellant submitted that the
evidence of PW-3, DW-2 and DW-3 are consistent on the point of cost
of the construction of the house. PW-3 at Para-9 of his cross-
examination has clearly admitted that the cost of construction of the
house would be Rs.16,000/- which he found to be correct and as such,
PW-3 had assessed the cost of construction of the house as
Rs.16,000/- and DW-2 and DW-3 have also deposed that the cost of
construction of the house was between Rs.15,000 to 20,000/-. PW-3
has not been declared hostile by the prosecution on the point of
expenditure incurred on the construction of the house and nothing has
come in the cross-examination of DW-2 and DW-3 to disbelieve their
testimony. She further submitted that the source of money spent in the
construction of the house has been properly and sufficiently explained
by DW-2 wife of the appellant and the prosecution has failed to elicit
any contradiction during her cross-examination. She further submitted
that the valuer in its Valuation Report dated 30.07.1987 (Exhibit-10)
had assessed the value of the house as per Plinth Area Method as
Rs.70,125/-, but admittedly the construction was done in between the
years 1976 to 1981. The valuer has not mentioned the calculation done
as per the check period i.e. cost of the cement, sand, bricks, labour,
etc. and in fact, no table was prepared by the valuer as per the relevant
period on which the valuation was done.
3. The learned counsel for the appellant further submitted that it is
admitted case of the prosecution that total salary and total allowance
obtained by the appellant was Rs.92,096 and 1/3 rd of that amount
stands as Rs.30,658.66. The admitted case of the prosecution and
defence proves that the total cost of construction of the house was
Rs.15,000/- - 20,000/- which was well within 1/3rd of the savings of
the appellant.
4. The learned counsel for the appellant further submitted that the
Explanation to Section 13(1)(e) of the Prevention of Corruption Act,
1988 is not applicable in the present case against the appellant as the
check period was prior to 1988. The presumption under the
Explanation to Section 13(1)(e) of the Prevention of Corruption Act,
1988 was not available to the prosecution to be raised against the
appellant for the check period of the base years 1979-80-81 under
Section 5(1)(e) of the Prevention of Corruption Act, 1947. To support
her submissions, she relied upon the judgment passed by the Hon'ble
Supreme Court in the case of Jagan M. Seshadri v. State of T.N.
reported in (2002) 9 SCC 639.
5. The learned counsel for the appellant further submitted that the
prosecution has failed to prove the charge against the appellant
beyond reasonable doubt and hence, the impugned judgment is fit to
be set aside and the appellant is fit to be acquitted from the charge
thereunder and this appeal is fit to be allowed.
Arguments on behalf of the respondent
6. Learned counsel appearing for the respondent, on the other
hand, opposed the prayer made on behalf of the appellant and
submitted that the appellant has committed serious nature of offence.
She submitted that the appellant had not taken permission from the
department either for purchase of the land in the name of his wife or
construction of the house, nor he had informed the department. The
appellant had also not produced any explanation or valid paper
regarding his claim that the land was purchased by his mother-in-law
in the name of the wife of the appellant and she had also helped them
to construct the house. The claim of the appellant is falsified by the
Enquiry Report (Exhibit-1/3), as it shows that his father-in-law had
died in the year 1975 and the house was purchased in the year 1976
and his mother-in-law also died in the year 1978. The mother-in-law
of the appellant had neither any source of income, nor any immovable
property in her name or in the name of her husband. She submitted
that in view of the aforesaid facts and circumstances of the case, the
impugned judgment does not call for any interference. The learned
counsel has relied upon following two judgements: -
a) 1959 SCC Online SC 82: (1960) 1 SCR 461: AIR 1960 SC 7
C.S.D. Swami Vs. State (para 4,5,6 and 7)
b) (2007) 7 SCC 358 (N.P. Jharia Vs. State of M.P.) para 16
Findings of this Court
7. The prosecution case is that the Informant Kalika Prasad Singh,
Inspector of Police, Vigilance Cell, Bidyut Koshang, Vigilance
Branch, Patna gave a written complaint to the Officer-in-charge,
Cabinet (Vigilance) P.S., Bihar, Patna alleging that the Electricity Cell
of Vigilance Branch received a Complaint against the appellant in the
year 1980 that the then Accounts Assistant, Electrical Circle, Ranchi
posted in the office of Electrical Supply Sub-Division, Dhanbad
having acquired disproportionate assets by illegal means through part
payment of the bills of consumers. The Complaint was verified by the
Vigilance Cell which revealed that the appellant has constructed a
house in the name of his wife Shobha Devi at Mouza- Hirapur,
District- Dhanbad on a land measuring 33 x 25 Square Feet bearing
Plot No.2460, Khata No.62 and he had got the land purchased from
one Rakesh Prasad, resident of Jharia vide Deed No.5503 dated
26.05.1976 for a consideration amount of Rs.1,000/- and he has
constructed three rooms, varandah, bathroom, etc. on the land. The
house-in-question was assessed through the Assistant Engineer, Civil,
Vigilance Cell fixing the base year 1979-80-81 and found of worth
Rs.75,528/-.
It was asserted that the appellant came in service in the month
of April, 1966 in the Electricity Board and from April, 1966 to 1981,
he received Rs.92,096.60 from his salary and allowances. 1/3rd of that
amount stands Rs.30,658.66 and also received Rs.5,719.48. The total
income comes upto Rs.36,448.14, but he constructed the house worth
Rs.75,528/-. The cost of the land is Rs.1,000/-. The appellant did not
obtain any permission from the department for purchase of the land or
construction of the building. The explanation given by the appellant
about the construction of the building and purchase of the land as
economic assistance provided by his mother-in-law Jaga devi is not
satisfactory. In course of enquiry, it has come that the mother-in-law
of the appellant died in the year 1978 and his father-in-law died in the
year 1976. His mother-in-law had neither any source of income, nor
any stable property standing in her name. As per the technical
evaluation report, it appears that the house-in-question was
constructed in the year 1979-1980-81, which is a period when his
mother-in-law had already expired. During investigation, it also came
that the appellant had gone to the vendor of the land Rakesh Prasad
son of Dr. Rajendra Prasad, resident of Jharia, P.S.- Jharia, District-
Dhanbad to purchase the land and had paid the consideration amount.
In this way, it was alleged that the appellant while posted as
Cashier and Accounts Assistant at Dhanbad and Ranchi Circle
misused his post and for getting illegal monetary gain by illegal
means, accumulated disproportionate property for which a prima-facie
case is made out against him. The Informant prayed for institution of
F.I.R. and legal action against the appellant for the offence of being in
possession of disproportionate assets worth Rs.36,079.86 under
Section 5(2) r/w 5(1)(e) of the Prevention of Corruption Act, 1947
converted into Section 13(2) r/w 13(1)(e) of the Prevention of
Corruption Act, 1988.
8. On the basis of the written complaint, the case was registered as
Vigilance P.S. Case No.30 of 1992 dated 14.07.1992 under Section
5(2) r/w 5(1)(e) of the Prevention of Corruption Act, 1947 converted
into Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act,
1988 against the appellant and the investigation was entrusted to
Mahendra Kumar, DSP, Crime Investigation Department (Electrical
Cell), Vigilance, Patna.
9. After completion of investigation, the Investigating Officer
submitted Charge-sheet No.15/1994 dated 27.07.1994 against the
appellant and on 03.08.1994, cognizance of the offence under Section
5(2) r/w 5(1)(e) of the Prevention of Corruption Act, 1947 converted
into Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act,
1988 was taken against the appellant.
10. On 14.05.1997, the charge under Section 5(2) of the Prevention
of Corruption Act, 1947 converted Act Section 13(2) r/w 13(1)(e) of
the Prevention of Corruption Act, 1988 was framed against the
appellant which was read over and explained to him in Hindi to which
he pleaded not guilty and claimed to be tried.
11. In course of trial, the prosecution examined altogether 07
witnesses in support of the case. PW-1 is Banwari Lal, PW-2 is Kalika
Prasad Singh who is the Informant of the case, PW-3 is Raj Kishor
Tiwary, PW-4 is Mahendra Kumar, Investigating Officer, PW-5 is
Sita Ram, PW-6 is Rajendra Prasad and PW-7 is Raj Bansh Mishra.
12. The prosecution exhibited the Enquiry Report dated 22.02.1983
and Exhibit-1, Enquiry Report dated 05.10.1983 as Exhibit-1/1,
Enquiry Report dated 31.07.1991 as Exhibit-1/2, Enquiry Report dated
23.08.1991 as Exhibit-1/3, Typed Report as Exhibit-2, formal F.I.R. as
Exhibit-3, Enquiry Report dated 10.07.1980 as Exhibit-4, Enquiry
Report dated 02.09.1980 as Exhibit-4/1, statement of Rakesh Prasad,
vendor of land-in-question as Exhibit-5, statement of Dhirendra
Chandra Chatterjee as Exhibit-5/1, application of the appellant as
Exhibit-6, Annexure-2 of Charge-sheet as Exhibit-7, statement of
salary drawn as Exhibit-8, sanction order as Exhibit-9 and Valuation
Report as Exhibit-10.
13. PW-1 (Banwari Lal) in his examination-in-chief deposed that in
the year 1990-91, he was posted in C.I.D. as Inspector of Police and as
per the direction of the S.P., C.I.D., he had investigated the case on
two counts. Firstly, the tenants residing in the house of the appellant
and secondly, the immovable property of the mother-in-law of the
appellant. During enquiry, he found that two tenants namely, Kapil
Deo and Bhola Singh were residing in the house and secondly, the
mother-in-law of the appellant had died and the brother-in-law of the
appellant has given in writing that his father has got no land in his
name and his father used to do the work of priest and from the said
income, the land in the name of the wife of the appellant has been
purchased. PW-1 further stated that after enquiry, he had submitted his
Enquiry Report. In his cross-examination, he admitted that he had
investigated the case before lodgment of the case and not in the year
1980. He further admitted that he had not investigated the case on
other points, except the two counts that what was the economic status
of the wife and mother-in-law of the appellant at the time of
purchasing the house at Telipara, Dhanbad and what was the monthly
rent paid by the two tenants residing in the house-in-question. He
further admitted that he had not found out the khata, plot and area of
the land and had not seen the documents of the land. One renter used
to pay Rs.1,500/- and Bhola used to pay Rs.500/- as rent, but he had
not seen the rent receipts.
14. PW-2 (Kalika Prasad Singh) is the Informant of the case. In his
examination-in-chief, he deposed that in July, 1992, he was posted as
Inspector of Police in Special Cell, Vigilance Branch, Electricity
Board, Patna and on 14.07.1992, he was directed by the Senior Officer
to institute a case on the basis of Complaint No.306/1980 related to
the appellant while he was posted as Accounts Assistant, Electricity
Board in Ranchi and Dhanbad. The appellant had constructed a house
at Hirapur, Dhanbad after purchasing land in the name of his wife
namely, Shobha Devi by acquiring disproportionate assets. Inspector
Satyendra Narayan Singh and A.S.I. Banwari Prasad had conducted an
enquiry in this connection. He exhibited the Enquiry Report dated
22.02.1983 submitted by Satyendra Narayan Singh as Exhibit-1 and
the Enquiry Report dated 05.10.1983 submitted by Satyendra Narayan
Singh as Exhibit-1/1. He also exhibited the Enquiry Report dated
31.07.1991 submitted by Banwari Prasad as Exhibit-1/2 and the
Enquiry Report dated 23.08.1991 submitted by Banwari Prasad as
Exhibit-1/3. He came to know from the enquiry reports that the
appellant has purchased a land measuring 33 x 25 Square Feet in the
name of his wife at Hirapur, Dhanbad from Rakesh Prasad, Jharia vide
registered Deed No.5503 dated 26.05.1976 for a consideration amount
of Rs.1,000/- and the appellant had finalised the deal with the land
owner. Thereafter, the appellant had constructed a house consisting of
3 rooms, verandah and toilet on the land in between 1978 to 1981. Sri
R.B. Mishra, Assistant Engineer, Civil, Electrical Cell, Vigilance had
estimated the value of the house as Rs.75,500/-. The salary statement
of the appellant from April, 1966 to 1981 were obtained from which
he came to know that the appellant had received Rs.92,000/- as salary
and allowance during period and considering 1/3rd of the said amount
as saving, it comes to Rs.30,600/-. The appellant had also got
Rs.5,700/- as bonus during this period. Accordingly, the appellant had
acquired disproportionate amount of Rs. 36,000/- approximately
during this period, for which he has no accounts and he had also not
taken any money or permission for purchasing land or constructing
house from the department. On the basis of the aforesaid facts, he had
prepared the written complaint which was typed by Rajeshwar Prasad,
typist and he had made his signature and on the basis of which,
Vigilance P.S. Case No.30 of 1992 dated 14.07.1992 was registered.
He exhibited the written complaint as Exhibit-2 and the formal F.I.R.
as Exhibit-3. In his cross-examination, PW-2 admitted that he himself
had not conducted any enquiry in the matter and the enquiry was made
before preparing the written complaint. It is mentioned in the typed
report that the case is registered as Vigilance P.S. Case No.30 of 1992
dated 14.07.1992 under Section 5(2) r/w 5(1)(e) of the Prevention of
Corruption Act, 1947, converted Section 13(2) r/w 13(1)(e) of the
Prevention of Corruption Act, 1988 against the appellant and the
investigation is entrusted to Mahendra Kumar, DSP, Crime
Investigation Department (Electrical Cell), Vigilance, Patna. He
further admitted that he had not mentioned the names of Satyendra
Narayan Singh and Banwari Prasad in the typed report. He stated that
his re-statement was taken by the Investigating Officer, but he does
not remember as to whether he had taken the names of these two
persons. He also admitted that the valuation report is not before him.
15. PW-3 (Raj Kishor Tiwary) in his examination-in-chief deposed
that when he was posted as Inspector of Police in Vigilance Cell,
Ranchi in the year 1980, he had received a complaint from Ambika
Prasad Singh for enquiry against the appellant and accordingly, he had
conducted the enquiry. He exhibited his First Enquiry Report dated
10.07.1980 as Exhibit-4 and Second Enquiry Report dated 02.09.1980
as Exhibit-4/1. He further exhibited the statement of the vendor of the
land-in-question Rakesh Prasad recorded by him as Exhibit-5,
statement of Dhirendra Chandra Chatterjee, Deed Writer as Exhibit-
5/1 and the letter written by the appellant as Exhibit-6. In his cross-
examination, PW-3 admitted that he had received the letter from the
appellant on 22.08.1980 and in course of enquiry, he had found that a
case being M.P. Case No.1186/1978 was pending between the
appellant and Visheshwar Thakur. He also admitted that the appellant
had submitted an explanation to the Electricity Department in which
he had stated that his mother-in-law had purchased the land-in-
question in the name of her daughter i.e. wife of the appellant and had
contributed Rs.4,000/- for construction of the house. He had not found
the house of the appellant as luxurious and he had found that the cost
of construction of the house as Rs.16,000/- was correct. He stated that
when he had visited the house for enquiry, he had found the house
constructed and its one room was given on rent. He had not prepared
any separate diary in connection with the enquiry.
16. PW-4 (Mahendra Kumar) is the Investigating Officer of the
case and in his examination-in-chief, he deposed that when he was
posted as Deputy Superintendent of Police in the Vigilance Cell of
Electricity Board, Kalika Prasad Singh, Informant (PW-2) had filed a
complaint against the appellant on 14.07.1992 alleging that the
appellant has acquired disproportionate assets of Rs.36.079/- without
obtaining permission from the senior officers of the Board in the form
of purchasing and constructing a house over 825 Square feet land in
Plot No.2460, Khata No.62, Hirapur, Dhanbad in the name of his wife
namely, Smt. Shobha Devi. On the basis of the said written complaint,
Harihar Choubey, Deputy Superintendent of Police-cum-Officer-in-
charge, Cabinet (Vigilance) P.S. had registered the case as Vigilance
P.S. Case No.30 of 1992 dated 14.07.1992 under Section 5(2) r/w
5(1)(e) of the Prevention of Corruption Act, 1947, converted Section
13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988 against
the appellant and the investigation was entrusted to him. In course of
investigation, he recorded the statement of the informant and on
17.07.1992, he had inspected the house-in-question which is a double
storeyed building till plinth area measuring 33' x 25' i.e. 825 Square
Feet situated in Mohalla Adarsh Nagar near Hirapur. The house
consists of four rooms, one kitchen and one lavatory without plaster
walls on the upper floor in which the appellant resides with his family
and the ground floor consists of varandah, kitchen, lavatory and four
rooms with plaster walls having a courtyard of 8' x 10'. Two tenants
are residing in the ground floor. He had recorded the statements of
Banwari Lal Inspector of Police, Sitaram retired Accountant, Rajbansh
Mishra Assistant Engineer (Civil), Satyendra Singh Inspector of
Police, wife of the appellant namely, Shobha Devi. He had also
recorded the statement of the appellant and has annexed his statement
with the charge-sheet. He has obtained the documents related to the
case from the original file of the vigilance enquiry and a list was
prepared as Annexure-2 which was typed on his dictation. He
exhibited Annexure-2 as Exhibit-7. He had found a prima-facie case
against the appellant under the alleged sections and after obtaining
sanction from Sri R.L.S.N. Bala prasad, Secretary, Bihar State
Electricity Board, he had submitted Charge-sheet. In his cross-
examination, PW-4 admitted that the Informant Kalika Prasad Singh
himself had not verified the statements made in his written complaint
before submitting the written complaint. He further admitted that he
had not made Ambika Prasad Singh as a witness in the list of
witnesses. He stated that Raj Kishor Tiwary in his statement had
stated that the enquiry is being conducted on the complaint made by
Ambika Prasad Singh and Banwari Lal had verified the complaint
before its registration.
17. PW-5 (Sita Ram) is a formal witness. He deposed that he was
working on the post of Accountant in Electricity Department in the
year 1975 and he has retired on 31.01.1988. He exhibited the
statement of pay of the appellant as Exhibit-8.
18. PW-6 (Rajendra Prasad) is also a formal witness. He deposed
that on 23.04.1994, he was posted as Upper Divisional Assistant in the
office of the Manager-cum-Chief Engineer in the Dhanbad Regional
Electricity Board. He exhibited the sanction order for prosecution of
the appellant accorded by Sri R.L.S.N. Bala prasad, Secretary, Bihar
State Electricity Board as Exhibit-9.
19. PW-7 (Raj Bansh Mishra) is the valuer who had assessed the
value of the house-in-question of the appellant. In his examination-in-
chief, he deposed that on 30.07.1987, he was posted as Assistant
Engineer (Civil) in the Electricity Board Headquarter, Patna and he
had received Order No.306/80 dated 19.06.1987 of S.P., Vigilance for
valuation of the house of Shobha Devi wife of the appellant situated
over Plot No.2460, Khata No.62, Touzi No.7, Hirapur, Dhanbad. He
had submitted his report on 30.07.1987 to the S.P., Vigilance, Patna in
which he had found the house constructed upto plinth area measuring
33' x 25' = 825 Square Feet and had assessed the value of the house as
per Plinth Area Method as Rs.70,125/-. After adding the cost of the
electric fittings of Rs.1,402.25, its total cost was assessed as
Rs.71,527/-. He exhibited the Valuation Report as Exhibit-10. In his
cross-examination, PW-7 stated that the value of the house was
assessed on the basis of the rate prescribed in the years 1979, 1980
and 1981. He further stated that it is written in the report that the said
house was constructed in between the years 1979-1981 and the value
was assessed on that basis, whereas he had gone to assess the value of
the house in the year 1987 and he had not sent any brick, plaster, etc.
of the constructed house for examination. He has not stated in the
report that pucca house was constructed or how much portion of the
house was pucca and how much portion was kuchha. The value of the
house was not assessed on the basis of the market rate, rather it was
assessed by Plinth Area Method. He also admitted that there may be
difference in the valuation assessed as per Plinth Area Method and the
market value.
20. On 08.10.2002, the statements of the appellant were recorded
under Section 313 of Cr.P.C. wherein he admitted that he was working
on the post of Accounts Assistant in the Electricity Department of the
Bihar State Electricity Board in the year 1980, but denied that he had
constructed a house at Telipara, Dhanbad after purchasing land in the
name of his wife Shobha Devi and had acquired disproportionate
assets of Rs.36,079.36. He further denied that after valuation, the cost
of the house constructed between 1978-1981 was estimated as
Rs.75,528/- which was disproportionate to his savings. He stated that
he would produce witness in his defence.
21. Thereafter, the appellant examined 04 witnesses in his defence.
DW-1 is Ambika Prasad Singh, DW-2 is Shobha Devi, wife of the
appellant, DW-3 is the appellant himself and DW-4 is Rakesh Prasad.
22. DW-1 (Ambika Prasad Singh) in his examination-in-chief,
deposed that he knows the appellant since 1975-76 and the house of
the appellant is situated at a distance of 300 yards from his house. The
land-in-question is in the name of Shobha Devi and the land was
purchased in the year 1976 and he had facilitated as a mediator in the
purchase and sale of the land at a consideration amount of Rs.1,000/-
and Rakesh Prasad was the seller of the land and he was a witness in
the Sale Deed No.5503 dated 25.05.1976 which was written by
Dhirendra Chandra Chatterjee. He exhibited his signature on the sale
deed as Exhibit-A and the signature of Dhirendra Chandra Chatterjee
as Exhibit-A/1. The mother-in-law of the appellant had paid the cost
of the land in presence of the registrar. Three rooms of small size were
constructed in the house till 1977-78 and total Rs.20-25 thousand was
spent by the mother-in-law of the appellant to construct the house.
One tenant was residing in the house and rent was about Rs.600-700/-
per month for half potion. The wife of the appellant had kept 2-3
Jersey Cows and she used to earn some money from milk and cow
dung. The appellant also has agriculture and he used to get foodgrains
from the house of his brother. The appellant had also invested 5-6
thousand rupees from the savings of his salary. He stated that he had
never made any complaint against the appellant, but Mahendra Kumar
DSP had enquired him in this connection and had shown a copy of the
complaint to him. The complaint neither bears his signature, nor it is
in his writing. He stated that whatever he deposed in court, he had
stated the same to the DSP. The wife and mother-in-law of the
appellant used to pay the charges against the labour and mason. In his
cross-examination. DW-1 admitted that he and the appellant used to
work in the same department and the sale deed was written in his
presence and he has no personal knowledge as to who had paid the
amount. He further admitted that he does not know the name of the
tenant and he has also not seen any receipt issued to the tenant. He had
heard that the tenant used to pay Rs.600/- as rent.
23. DW-2 (Shobha Devi) is the wife of the appellant. In her
examination-in-chief, she deposed that her marriage was solemnized
in the year 1967 and the appellant was in job. The appellant has
agricultural lands in Chhapra and Champaran districts and he used to
get products as well as cash money from there. The land-in-question is
in her name which was purchased by her mother in her name and she
and her mother have constructed the house investing Rs.15,000 to
20,000 thousand. She had collected Rs.8,000/- and her mother had
given Rs.4,000/- and she had invested the rest amount after collection.
Initially, the appellant had not invested any amount in the construction
of the house, but he had invested Rs.3,000 to 4,000 thousand later on.
She had kept two Jersey cows and she had earned money by selling
milk and cow dung. One tenant was also residing in her house who
used to pay Rs.650/- as rent. She used to pay all the charges of the
labour used to purchase the articles. In her cross-examination, DW-2
admitted that she had purchased one Jersey Cows at a cost of
Rs.2,000/- before 3-4 years before constructing the house. Earlier she
used to live in a rented house and she is illiterate. She had gone to the
registry office at the time of purchasing the land. Her father had died
before purchasing the land and her mother died after about 6 years of
purchasing the land. She used to get 4 to 5 liters of milk and she used
to sell the milk @ Rs.6 per liter and she used to keep one liter for
consumption. She had also kept money after selling jewellery. This
witness has not been cross examined on the point of value of the
construction of the house.
24. DW-3 (Bharat Mishra), the appellant himself, deposed in his
examination-in-chief that he was posted as Accounts Assistant in the
Electricity Board since April, 1966 to November, 1978 and he was
posted at Dhanbad at the time of institution of the case. He was posted
at Ranchi from 1978 to 1992 and he was residing in a rented house at
that time. He further deposed that apart from his salary, he had landed
property at his Village- Dhanav, P.S.- Baliyapur, Saran, District-
Chhapra and at Village- Patjirwa, P.S.- Bairiya, West Champaran,
Betiya and he used to get 9 to 10 quintals of foodgrains and
Rs.10,000/- cash per year from Chhapra and Betiya. He further stated
that his wife had kept cows and she used to sell milk and she also used
to get Rs.600 to 650/- monthly rent from one tenant. The land was
purchased by his mother-in-law in the name of his wife and the house
was constructed by his mother-in-law and wife in between 1976 and
1978 at a total cost of Rs.20,000/-. He had invested Rs.4,000 to
5,000/- in the house. He further deposed that after construction of the
house, he had received two show cause notices from the department.
He exhibited Letter No.C-2015/78/95 dated 27.01.1979 issued by Sri
S.N. Choudhary, Joint Secretary, Patna as Exhibit-B (with objection)
and Letter No.7/C-2015/78/829 dated 10.08.1979 issued by Sri R.N.
Sharma, Deputy Director, Personal, Patna as Exhibit-B/1 (with
objection) and he had submitted his show cause dated 14.09.1979
through registered post. He exhibited the show cause dated 14.09.1979
as Exhibit-B/2 and the Registry Receipt No.1487 of Ranchi Post
Office as Exhibit-C. He further stated that as the land was in the name
of his wife, prior permission for construction of the house was not
required. In his cross-examination, DW-3 admitted that his wife,
mother-in-law and father-in-law do not file any income tax return and
he himself has also not filed any income tax return in the department.
He has never informed the department that he has income from
agriculture. He did not maintain the details of his income. He denied
the suggestions that the house was completed in the year 1979, 1980
and 1981 and he has constructed the house beyond his known sources
of income. He also denied the suggestion that his wife and mother-in-
law had no source of income.
25. DW-4 (Rakesh Prasad) is the vendor of the land. In his
examination-in-chief, he deposed that he had sold the land to Shobha
Devi vide Sale Deed No.5503 dated 25.05.1976 for a consideration
amount of Rs.1,000/-. He exhibited the Sale Deed No.5503 dated
25.05.1976 as Exhibit-D. He further deposed that Shobha Devi and
her mother had paid the consideration amount to him. The sale of the
land was finalized by Ambika Singh, Shobha Devi and the mother of
Shobha Devi. He had not made any conversation with the appellant in
connection with the sale and purchase of the land. In his cross-
examination, he admitted that he was present at the time of writing the
sale deed and Shobha Devi and her mother through the mediator
Ambika Singh to finalize the sale and purchase of the land. He denied
the suggestion that the appellant had made talks with him for purchase
and sale of the land and he had also paid the amount.
26. Accordingly, the defence exhibited the signature of DW-1
Ambika Prasad Singh on Sale Deed as Exhibit-A, Signature of
Dhirendra Chandra Chatterjee on Sale Deed as Exhibit-A/1, Letter
N.95 dated 27.01.1979 of Sri S.N. Roy Choudhary, Joint Secretary as
Exhibit-B (with objection), Letter No.829 dated 10.08.1979 of Sri
R.N. Sharma, Deputy Director, Personal, Patna as Exhibit-B/1 (with
objection), Show Cause dated 14.09.1079 addressed to Joint Secretary
as Exhibit-B/2, Postal Registry Receipt No.1487 of Ranchi Post Office
as Exhibit-C and Sale Deed No.5503 dated 25.05.1976 as Exhibit-D.
27. The learned trial court considered the evidences and materials
available on record and summarized its findings at Para-24, 25, 26, 27
and 28 which read as under:
"24. On marshalling of the evidence on record and giving a
thoughtful consideration on the argument canvassed on behalf of the
accused, this court finds that the accused has been charged on 14th
May, 1997. The prosecution case was launched against him on
14.07.1992. The accused has been charged for an offence
punishable U/s. 5(2) of P.C. Act, 1947 converted to corresponding
Section 13(2) r/w 13(1)(e) of the P.C. Act, 1988. therefore, it is an
admitted fact that the case was launched when the new Act came
into existence leaving no dispute that when the offence was
committed, it was the 1947 Act which in operation and the same was
converted by the new Act of P.C. Act, 1988 and the provisions of
Section 13(2) r/w Sec. 13(1)(e) of the P.C. act, 1988 was well legally
enforceable. Therefore, I am of the humble view that the authority
relied by the defence that the charge is defective on the basis of the
observation of our Lordship of Hon'ble Supreme Court in which the
facts and circumstances were different. There in that case, the
offence related and the criminal proceeding was initiated prior to
coming into force of the new P.C. Act, 1988.
25. To substantiate the charge U/s. 5(1)(e) of the P.C. Act, 1947
punishable U/s.5(2) of the P.C. Act, 1947 which corresponds to Sec.
13(1)(e) of the New P.C. Act, 1988. The following ingredients are
required to be considered:
(I) The prosecution must establish the accused is a public
servant, (II) the nature and extent of the pecuniary resources or
property which were found in his possession, (III) it must be proved
as to what were his known sources of income i.e. known to the
prosecution and (IV) 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 satisfactory accounting for the possession
of such resources of property shifts to the accused.
At first, admittedly the accused is a public servant while
working in the Electricity Department as Accounts Assistant at
Ranchi as well and in the same capacity. Admittedly there is land
and building standing in the name of Shobha Devi, the wife of the
accused. The known sources of income of accused has come from
Ext-3 statement of salary drawn as from 5.4.66 to October, 1981
comes to Rs.92,503.64 paise. As per F.I.R., he has been made
accused to be found in possession of disproportionate assents other
than his known source of income. The defence has tried to make out
a case that the first report Ext-4 and the evidence of P.W.-3 and the
Raj Kishor Tiwary will show that the total cost as estimated by these
P.W. comes to Rs.16,000/- whereas Ext-4/1 shows that this witness in
his report has denied this fact. According to him, this amount of
Rs.16,000/- estimated value of the Electricity Vigilance Cell. Further
according to the P.W.-7 Raj Bansh Mishra, the estimated value of
the house and land as per Plinth Area Method alongwith electricity
comes to Rs.71,527.50 paise. Valuation report is Ext-10. Therefore,
the total estimated cost during check period comes to the tune of
Rs.36,079.86 paise. This amount is the amount which appears to be
disproportionate and which was found in possession of the accused
to his known sources of the income. This fact has been established by
the prosecution.
26. Now further on marshalling of the evidence on record
adduced by the defence, it appears that the accused has attempted to
give an explanation through the mouth of D.W.-2 Shobha Devi the
wife of the accused as well as from D.W.-3. On carefully examining
the evidence of D.W.-2 what I find that she is a perfect housewife
and she has attempted to safeguard her husband accused Bharat
Mishra. She has stated that she invested Rs.15,000/- to Rs.20,000/-
in the construction of the house. Her source of income was the sale
proceed of milk and cow dung. From the trend of evidence of this
witness, it appears that earlier before purchase of the land, they
were residing in a rented house. It will appear from the defence
document Ext-B/2 the explanation given by the accused to the Joint
Secretary, Bihar State Electricity Board, Patna where practically it
was not possible to her to maintain two jersey cows. Apart from that,
the accused never disclosed these sources of income anywhere prior
to the allegation levelled against him about the disproportionate
assets. D.W.-3 in his cross-examination has clearly stated that his
wife never paid any income tax, nor furnished any return. On-laws
have also not ever furnished return of the income tax. Apart from
that, the accused has not been able to bring on record any single
chit of paper in support of his in-laws having any landed property.
On the other hand, the evidence has come through the documents
that the in-laws of were having big family depending upon them. The
accused has flatly denied of making investment in the said building
except in the belated stage of check period. The evidence has also
come that D.W.-2 is an illiterate lady and no one can believe on the
earth that a female will move for purchase of land without the
assistant of her husband. Meaning thereby the accused has not come
with clean hand through the explanation. Merely he has attempted to
discharge his duty by adducing simple oral evidence. Whereas there
is ample evidence on record that the house in question is double
storeyed building.
27. There is valid sanction against the accused for his
prosecution (Ext.-9). The authority after due scrutinization has
accorded sanction for the prosecution of this accused.
28. On the face of the totality of the above circumstances and the
cumulative effects thereof, this court is of the view that the accused
Bharat Mishra has acquired disproportionate assets of Rs.36,079 in
the shape of building standing in the name of his wife Shobha Devi
for which he never informed to his department, nor took any
permission for construction of a building or purchase of land being
a public servant and thereby committed a criminal misconduct
coming in the mischief of provisions of Sec. 13(1)(e) punishable
under Section 13(2) of the P.C. Act, 1988. This is an asset
disproportionate to the known source of his income. In view of the
matter, I am further of the view that the prosecution has been able to
prove the charge beyond reasonable doubt against the accused
Bharat Mishra U/s. 5(2) of the P.C. Act, 1947 r/w Section 13(2) of
the P.C. Act, 1988."
28. The learned trial court convicted the appellant under Section
5(2) of the Prevention of Corruption Act, 1947 converted into
corresponding Section 13(2) r/w 13(1)(e) of the Prevention of
Corruption Act, 1988 and sentenced to undergo Rigorous
Imprisonment for two years with fine of Rs.4,000/- under Section
13(2) of the P.C. Act and in default of payment of fine, to undergo
Simple Imprisonment for two months. The learned trial court was of
the view that the appellant would be governed by the Prevention of
Corruption Act, 1988 and not by the earlier Act of 1947 as the FIR
was lodged and the charges were framed after coming into force of the
Act of 1988 and the provision of section 13(1) (e) of the Act of 1988
was the section corresponding to section 5(1) (e) of the Act of 1947.
The learned trial court has also recorded that the appellant did not
disclose the other sources of income of his family and did not disclose
his asset in the shape of building standing in the name of his wife
Shobha Devi for which he never informed to his department, nor took
any permission for construction of a building or purchase of land
being a public servant and thereby committed a criminal misconduct
coming in the mischief of provisions of Sec. 13(1)(e) punishable under
Section 13(2) of the P.C. Act, 1988. This is an asset disproportionate
to the known source of his income. Thus adverse inference has been
drawn against the appellant referrable to explanation to section 13(1) (
e) of the Act of 1988.
29. After going through the impugned judgment and the materials
on record, this Court finds that Vigilance P.S. Case No.30 of 1992
dated 14.07.1992 was instituted against the appellant for committing
the offence under Section 5(2) r/w 5(1)(e) of the Prevention of
Corruption Act, 1947 converted into Section 13(2) r/w 13(1)(e) of the
Prevention of Corruption Act, 1988 in purchasing the land measuring
33' x 25' = 825 Square Feet bearing Plot No.2460, Khata No.62,
Mouza- Hirapur, District- Dhanbad vide Deed No.5503 dated
26.05.1976 in the name of his wife namely, Shobha Devi from one
Rakesh Prasad and constructing a house on the land during the years
1979, 1980 and 1981 by acquiring disproportionate assets beyond his
known sources of income. The value of the house was also assessed
on the basis of the rates prescribed during the years 1979, 1980 and
1981.
30. The Prevention of Corruption Act, 1988 came into force w.e.f.
09.09.1988 and by virtue of its Section 30, the Prevention of
Corruption Act, 1947 was repealed.
31. The corresponding provisions under Section 5 of the Prevention
of Corruption Act, 1947 and Section 13 and other relevant sections of
the Prevention of Corruption Act, 1988 are as under:
Prevention of Corruption Act, 1947 Prevention of Corruption Act, 1988
5. Criminal misconduct in discharge 13. Criminal misconduct by a public
of official duty - servant--
(1) A public servant is said to commit (1) A public servant is said to commit
the offence of criminal misconduct in the offence of criminal misconduct--
discharge of his duties--
(a) .......................... (a) ............................
(b) .......................... (b) ...........................
(c) .......................... (c) ............................
(d) .......................... (d) ..................................
(e) if he, or any person on his behalf is (e) if he or any person on his behalf, is
in possession of or has, at any time in possession or has, at any time
during the period of his office, been in during the period of his office, been in
possession, for which the public possession, for which the public
servant cannot satisfactorily account, servant cannot satisfactorily account,
of pecuniary resources or property of pecuniary resources or property
disproportionate to his known sources disproportionate to his known sources
of income. 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.
(2) Any public servant who commits (2) Any public servant who commits
criminal misconduct shall be criminal misconduct shall be
punishable with imprisonment for a punishable with imprisonment for a
term which shall not be less than term which shall be not less than
one year, but which may extend to one year, but which may extend to
seven years and shall also be liable seven years and shall also be liable
to fine: to fine.
Provided that the Court may, for
any special reasons recorded in 30. Repeal and saving--
writing, impose a sentence of (1) The Prevention of Corruption Act,
imprisonment of less than one year. 1947 (2 of 1947) and the Criminal
Law Amendment Act, 1952 (46 of
1952) are hereby repealed.
(2) Notwithstanding such repeal, but
without prejudice to the application of
Section 6 of the General Clauses Act,
1897 (10 of 1897), anything done or
any action taken or purported to have
been done or taken under or in
pursuance of the Acts so repealed
shall, in so far 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 provision of this Act.
32. The Hon'ble Supreme Court in the case of Jagan M. Seshadri
v. State of T.N. reported in (2002) 9 SCC 639 at Para-5, 6 and 10 has
observed as under:
"6. There is no dispute that when the offence was committed it
was the 1947 Act which was in operation. It is also not in dispute
that at the time when FIR was lodged, it was also the 1947 Act
which was in operation. Reliance on Section 30(2) of the 1988 Act
to hold that offence for which the appellant should have been
charged was one which fell under Section 13 of the 1988 Act is
wholly misplaced.
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 5(1)(e) of the 1947 Act. This difference can have a
material bearing on the case.
10. We have carefully perused the explanation given by the
appellant regarding the source of receipt of Rs.50,000 and
Rs.40,000 which amounts alone were canvassed before us to be
beyond the "known sources of income" of the appellant and find
ample support for his explanation in the prosecution evidence itself.
The evidence of PW 19, PW 27, PW 30 and PW 31 clearly support
the explanation given by the appellant. The appellant had thus,
discharged the burden of explaining the sources of those amounts.
Their non-mention in the property statement of the appellant would
have no consequence because Explanation to Section 13(1)(e) is
not to be read as an Explanation to Section 5(1)(e) of the 1947
Act." (emphasis supplied)
33. This Court further finds that as per the F.I.R., the check period
in the present case was taken to be the base years 1979-1980-81 when
the provisions of the Prevention of Corruption Act, 1947 was in
operation. The required enquiries began immediately after receipt of
the Complaint against the appellant and the Inspector of Police
Satyendra Narayan Singh had submitted the first enquiry report i.e.
Enquiry Report dated 22.02.1983 (Exhibit-1) which suggests that the
entire allegations are related to the period before coming into force of
the Prevention of Corruption Act, 1988, although the first information
report was instituted on 14.07.1992. Even the valuation report which
has been heavily relied upon by the prosecution (Exhibit-10) is of the
year 1987. Further, the learned trial court has not only held that
Section 13(1) (e) was applicable, but also has drawn adverse inference
against the appellant on account of non-disclosure of additional
sources of income of his wife and also non-disclosure of the
documents relating to the house standing in the name of his wife and
such adverse inference is certainly referrable to Explanation to section
13 (1) (e ) of the Prevention of Corruption Act, 1988 which has been
held to be materially different from Section 5(1)(e) of the Act of 1947
and admittedly, the alleged act of acquisition of property is relatable to
the period much before coming into force of the Act of 1988 and even
the enquiry with regards to the allegation made in the year 1980 had
commenced much prior to coming into force of the Act of 1988
though the FIR was registered in the year 1992. This Court is of the
considered view that under the aforesaid facts of the case, framing of
the charge under Section 13(2) r/w 13(1)(e) of the Prevention of
Corruption Act, 1988 against the appellant was inconsistent and
wholly misconceived. The charge could have been framed only under
Section 5(1)(e) read with Section 5(2) of the Act of 1947. Section
13(1)(e) of the Act of 1988 read with its explanation being materially
different from Section 5(1)(e) of the Act of 1947, the appellant could
not have been convicted by referring to Section 13(1)(e) of the
Prevention of Corruption Act, 1988.
34. Having held as aforesaid, it is required to be considered as to
whether the prosecution has been able to prove the charge under
Section 5(1) (e) of the Act of 1947.
35. As held by the learned trial court at the first instance, it is for
the prosecution to establish the basic ingredients to attract misconduct
under section section 5(1)(e) of the Act of 1947 and once the
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 satisfactory accounting for the possession of such resources of
property shifts to the accused.
36. This Court further finds that PW-3, Inspector of Police in
Vigilance Cell, Ranchi, has exhibited his First Enquiry Report dated
10.07.1980 as Exhibit-4 and has also exhibited subsequent report
dated 02.09.1980 (exhibit-4/1). From perusal of Exhibit-4, this Court
finds that PW-3 had assessed the cost of construction of the house as
Rs.16,000/- and in exhibit-4/1, P.W-3 has mentioned that the
estimated value of construction was of the authorities of the vigilance
cell of the electricity department who had conducted enquiry in this
regards. In his cross-examination at Para-8, PW-3 has admitted that
the appellant had submitted an explanation, which he proved as
Exhibit-6, to the Electricity Department in which he had stated that his
mother-in-law had purchased the land-in-question in the name of her
daughter i.e. wife of the appellant and had contributed Rs.4,000/- for
construction of the house. PW-3 has further admitted at Para-9 that he
had not found the house of the appellant as luxurious and he had found
that the cost of construction of the house as Rs.16,000/- was correct.
However, PW-3 has not been declared hostile by the prosecution on
the point of his assessment of the cost of construction of the house as
Rs.16,000/-.
37. PW-2 Informant in his examination-in-chief at Para-1 and 2 has
stated that the Inspector of Police Satyendra Narayan Singh and A.S.I.
Banwari Prasad had conducted an enquiry of the house and he has
exhibited the Enquiry Report dated 22.02.1983 submitted by
Satyendra Narayan Singh as Exhibit-1. From perusal of Exhibit-1, this
Court finds that in course of enquiry, Inspector of Police Satyendra
Narayan Singh had found the house as extremely general type and he
had assessed the cost of construction of the house in the year 1977 as
Rs.15,000/- only. This Court also finds that the D.W-2 (the wife of the
appellant) in whose name the disproportionate asset is said to have
been acquired has clearly stated in her examination-in-chief that the
expenses incurred in construction was 15,000/- to 20,000/- and has
also disclosed the sources of money for buying the land and for
construction, but there is no cross-examination of this witness on this
point. D.W-1 who is a witness to the sale deed of the land in the name
of the wife of the appellant has deposed that the consideration money
was paid by the mother of the wife of the appellant. This Court further
finds that the explanations of the appellant vide Exhibit-6 submitted
before the Inspector of Police, Cabinet (Vigilance) Department,
Ranchi-1 and Exhibit-B/2 submitted before the Joint Secretary, Bihar
State Electricity Board, Patna-1 have been fully supported by DW-1,
DW-2, DW-3 and DW-4 regarding the known sources of income of
the appellant and the source of purchasing the land and the
expenditures made for construction of the house. From perusal of the
evidences of DW-2 wife of the appellant and DW-3 appellant himself,
this Court further finds that the sources of money spent in the
construction of the house have been properly and sufficiently
explained by both of them and the prosecution has failed to elicit any
contradiction during their cross-examinations to discredit their
evidences. Accordingly, the appellant has discharged his burden of
explaining the sources of those expenditures.
38. This Court finds that the learned trial court has not all discussed
and considered the cross-examinations of the prosecution witnesses
and has also failed to properly consider the aforesaid aspects of the
case and has passed the impugned judgment of conviction on certain
presumptions and assumptions. The learned trial court has rejected the
oral and documentary evidences adduced on behalf of the defence on
the presumption that the wife of the appellant was a perfect housewife
and it was not possible to her to maintain two jersey cows and she did
not have any source of income. The learned trial court has further
presumed that as the wife of the appellant was an illiterate lady, no
one can believe on the earth that a female will move for purchase of
land without the assistance of her husband. The learned trial court has
also presumed that the mother-in-law and father-in-law of the
appellant had no landed property and they had no source of income.
This Court is of the considered view that such presumptions cannot be
basis for conviction of the appellant in the present case.
39. This Court further finds that the evidence of PW-3, DW-2 and
DW-3 are consistent. In fact, PW-3 has estimated the cost of
construction as Rs.16,000 (approximately) and DW-2 and DW-3 has
also deposed the cost between Rs.15,000 to Rs. 20000. In fact, PW-3
has not been declared hostile by the prosecution on the point of
expenditure incurred on the construction of house and nothing has
come in the cross examination of the prosecution to disbelieve the
testimony DW-2 and DW-3. Sources from where the construction of
house was done have been properly explained by DW-2 wife of the
appellant and no contradiction has come in the cross-examination of
DW-2.
40. The valuer has given the report on 30.07.1987 stating that the
cost of construction is Rs. 70,125/-, but admittedly the construction
was done in between the year 1976-81 and on perusal of the valuer
report (Exhibit-10), it would be evident that the valuer has not
mentioned the calculation done as per the check period (i.e. cost of
cement, sand, bricks, labour, etc.). In fact, no table has been prepared
by the valuer as per the relevant period on which the valuation was
done. The valuation done in 1987 could not have been relied upon by
the trial court to come to a conclusion that the construction was valued
at Rs.70,125/- ignoring the other consistent evidences on record that
the expenditure on the construction was only to the extent of
Rs.15,000/- to 20,000/- . Accordingly, the finding of the learned trial
court that the construction with electricity comes to Rs. 71,527.50 and
hence estimated cost during check period comes to Rs. 36,079.86 calls
for interference and is set-aside. On the aforesaid discussions of the
materials on record, this Court finds and holds that construction was
only to the extent valued at Rs. 15,000/- to Rs. 20,000/-. Even if the
value is taken as Rs. 20,000/- plus cost of land Rs. 1,000/-, the
construction was well within the available sources of income of the
appellant from his salary and other allowances. As per the prosecution
total salary and allowance received by the appellant was Rs.92,096.60
and 1/3rd of that amount stands as Rs. 30,658.66 which was available
with the appellant and the undisclosed income was calculated by the
prosecution by taking Rs. 30,658.66 in to account. This is over and
above the fact that the sources of money for acquisition of land and
construction over the land by the wife of the appellant were well
explained by the defence.
41. So far as the allegation of not taking prior permission for
purchase of the land or construction of the house to the department is
concerned, this Court is of the considered view that the non-disclosure
regarding purchasing the land and construction of the house to his
department is inconsequential since Explanation to Section 13(1)(e) of
the Prevention of Corruption Act, 1988 is not to be read as an
Explanation to Section 5(1)(e) of the 1947 Act. This Court is of the
view that the presumption under the Explanation to Section 13(1)(e)
of the Prevention of Corruption Act, 1988 was not available to the
prosecution to be raised against the appellant for the check period of
the base years 1979-80-81 under Section 5(1)(e) of the Prevention of
Corruption Act, 1947.
42. Considering the entire facts and circumstances of the case, this
Court finds that the prosecution has failed to prove the case against the
appellant beyond reasonable doubt and therefore, the judgment passed
by the learned trial court is perverse and calls for interference to
prevent miscarriage of justice.
43. Accordingly, the judgment of conviction and the order of
sentence dated 03.07.2003 passed by the learned Special Judge,
Vigilance, Dhanbad in Special Case No.22 of 1992, arising out of
Vigilance P.S. Case No.30 of 1992, is set-aside and the appellant-
Bharat Mishra is acquitted from the charge under Section 5(2) of the
Prevention of Corruption Act, 1947 converted into corresponding
Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988.
44. The bailors of the appellant are discharged from the liability of
their bail bonds.
45. Accordingly, this criminal appeal is allowed.
46. Pending Interlocutory Application, if any, is closed.
47. Let the original trial court records of the case be transmitted to
the court concerned.
48. Let a copy of this judgment be communicated to the learned
trial court through FAX/E-mail.
(Anubha Rawat Choudhary, J.)
Mukul
