Bharat Chandra Roul vs State Of Odisha
2022 Latest Caselaw 5113 Ori

           IN THE HIGH COURT OF ORISSA AT CUTTACK
                       CRA No.87 of 1995

        Bharat Chandra Roul                     ....            Appellant

                                     -Versus-

        State of Odisha                         ....          Respondent

      Advocates appeared in this case:

      For the Appellant              : Mr.Saroj Kumar Mohanty and
                                       Mr.Manoj Kumar Mohanty,
                                       Advocates.
      For the Respondent             : Mr.Prasanna Kumar Pani,
                                       Standing Counsel for Vigilance
                                       Department.
                 CORAM:
                 THE CHIEF JUSTICE
                 JUSTICE CHITTARANJAN DASH
                             JUDGMENT

26.09.2022

Chittaranjan Dash, J

1. This appeal under section 9 of the Orissa Special Courts Act,1990 arises from the Judgment and order dated 6th March 1995 passed in Special Court Case No.4 of 1993 of the Single Judge of this Court wherein the learned Single Judge having tried the offences against the Appellant under Section 13 (2) of Prevention of Corruption Act,1988 ( in short, the 'Act') read with Section 8(3) of the Orissa Special Courts Act,1990 ( in short, the 'Special Act') held him guilty there under, convicted and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rupees Five lakhs (Rs.5,00,000/-), and in default of payment of fine to undergo rigorous imprisonment for a further period of eighteen months.

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2. The case of the prosecution are that the Appellant while being engaged as employee of the government, being a public servant under section 2 (c) of the Act during the period between 12th June 1963 to 24th March 1990 acquired assets to the tune of Rs.8,03,395.08 which was disproportionate to his known source of income.

3. It is the case of the prosecution that on 24th March 1990 PW-11 Banabihari Nayak, Inspector of Police attached to Vigilance Directorate, Cuttack conducted raid in a house located at Aparna Nagar, Chauliaganj, Cuttack on the basis of search warrant (Ext.64) wherein the Appellant was residing with his family members. The raiding party comprised Yudhistir Ojha, the Executive Magistrate, Cuttack (PW-20), Ramesh Chandra Mohanty, the Deputy Superintendent of Police, Vigilance (PW-17) and others. Search was conducted in the house and various articles were seized as enumerated in the seizure list vide Ext.45.

4. The further case of the prosecution is that the valuation of different articles under Ext.45 was indicated on the basis of information given by the Appellant except the valuation of gold ornaments which was prepared as per the statement of goldsmith viz., Pramod Kumar Sahoo (PW-15) who was also present during the raid. Zima of the properties seized vide Ext.45 was given to the Appellant except certain documents.

5. On the very same day raid was also conducted in the office and official residence of the Appellant at Khurda by Nityananda Patnaik, Sub-Inspector of Police (Vigilance) (PW-1) in presence of others but in absence of the Appellant and the articles found were seized as per

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the seizure list vide Ext.19. The value of different articles enumerated under Ext.19 was reflected as per the version of witnesses present there. However, a steel Almirah that could not be opened during the search on that day was sealed and was opened on 26th March, 1990 and the articles found therein were seized vide seizure list, Ext.21. All the articles except Life Insurance Policies and one building plan were handed over in the zima of Udayanath Mahalik, the Watchman.

6. After the search, valuation was made of the seized articles and the disproportionate asset of the Appellant was worked out at Rs.5,20,610.00. The first information report vide Ext.46 was lodged before the Superintendent of Police, Vigilance City, Cuttack and accordingly the case was registered.

7. After registration of the case, the investigation of the case was entrusted to Sri Radhamohan Patra, Inspector of Police, Vigilance, Cuttack (PW-26), who took up the investigation on 29th March, 1990.

8. The prosecution case further reveals that the valuation work of the buildings situated at Aparnanagar, Chauliaganj was undertaken from 11th June 1990 to 13th June 1990 by Sri Rabindra Nath Mohanty, the Asst. Engineer (PW-23) who was assisted by Kantha Behera, Building S.I., Vigilance Directorate (PW-2) and two valuation reports vide Exts.89 and 90 were submitted to PW-26. Upon completion of the investigation, the Investigating Officer obtained sanction from the Competent Authority vide Ext.102 and charge sheet was submitted showing the Appellant to have acquired disproportionate assets to his known source of income to the tune of Rs.8,03,395.08 paise.

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9. The case record further reveals that during the course of trial it was conceded by the prosecution that the income to the tune of Rs.50,000/- wrongly assessed which was a loan obtained by the Appellant from the General Provident Fund besides Rs.2,000/- in respect of salary which was taken into consideration and as such the Appellant was ultimately found to have acquired disproportionate assets for the value Rs.7,51,395.08 paise.

10. To substantiate its case, the prosecution examined 26 witnesses in all and proved documents marked Exbt.1 to 144. The defence on the other hand too examined 23 witnesses in support of its case and proved documents marked Exbt.A to Exbt.W/1.

11. The learned trial court having assessed the evidence led before it, taking into consideration the income and expenditure of the Appellant during the period between 12th June 1963 to 24th March, 1990 came to the conclusion that the Appellant was in possession of disproportionate assets to the tune of Rs.5,00,000/- as proved by the prosecution vis- a-vis the Appellant's known source of income and accordingly held the Appellant guilty of the criminal misconduct for the offence under Section 13(1)(e) of the act punishable under section 13(2) of the Act read with section 8(3) of the Special Act and having convicted him there under sentenced as stated above.

12. Learned counsel for the Appellant assailed the impugned judgment and order of conviction dated 6th March, 1995, inter alia, on the ground that the learned trial court failed to appreciate the evidence on record more particularly in respect of the advance of Rs.15,000/- as claimed by the Appellant to have received by his wife (DW-20) for sale of Shaira land during the charge period and further claimed the

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net income from salary of the Appellant was Rs.3,57,114/-. He further contended that the learned trial court did not take into account the loan of Rs.20,000/- received from DW-7 for the purchase of giving a car to the first daughter of the Appellant at the time of marriage; that the construction of the buildings at Aparnanagar undertaken by late Jagannath Mohanta; that the learned trial did not accept the transfer of the building in favour of DW-20 by virtue of Ext.50 (partition deed) under the pretext that Ext.50 is not a genuine document and the Appellant to have spent money for construction of two buildings entirely and it was not a part under Ext.50.

13. The further contention of the learned counsel for the Appellant is that the learned trial court did not take into account a sum of Rs.40,000/- claimed by the Appellant to have received by DW-20 against her share after the death of late Jagannath Mohanta and that the expenditure of the Appellant and his family members on food, clothing, light and footwear etc. ought to have been assessed at Rs.2,35,000/-. According to the learned counsel, the expenses on electricity charges to the tune of Rs.6,501/-, the educational expenses to the tune of Rs.23,482.56 paise and expenses towards purchase of stamp and registration charges to the tune of Rs.3,098.50 paise too have not been considered.

14. Similar contention was also raised by the learned counsel for the Appellant to the effect that the learned trial court did not take into account the marriage expenses of the first daughter of the Appellant to the tune of Rs.1,14,250/- and that of the second daughter at Rs.1,00,000/- and held the joint account in the State Bank of Bikaneer and Jaipur standing in the name of Ramahari Rout and Saswati Rout

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to have no relevance with the income of the Appellant and that the value thereof could not have been included against the income of the Appellant.

15. Learned counsel also submitted that the plea of the Appellant that the television set and refrigerator found during the course of raid belonged to one Malati Jena, mother-in-law of the Appellant and should not have been added to the income of the Appellant. He also contended that the scooter found at the time of raid belonged to one Rabindranath Mishra, a friend of the son of the Appellant should not have been taken as the asset derived from the known source of income of the Appellant and further the articles found during the raid in the official residence of the Appellant at Khurda to the tune of Rs.4,470/- ought to have been excluded and the expenditure of the Appellant ought to have been taken at Rs.68,530/-.

16. It is also the contention of the learned counsel for the Appellant that the claim of the Appellant that part of the gold seized during the raid belonged to his daughter (DW-19) and the balance of the gold were gifted to his wife (DW-20) at the time of her marriage and further that the rent receipts and counter foils ought not to have been taken into consideration and that the claim of the Appellant to have received Rs.2,03,150/- towards house rent and the house rent was taken at Rs.1,45,000/-.

17. Learned counsel further assailed the impugned judgment contending that the learned trial court did not take into account the claim of the Appellant that he had received an interest from Bank and postal deposits to the tune of Rs.9,560/- and that the agricultural

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income from his native Hanupur standing in the name of DW-20 and the acceptance of the evidence of the prosecution that the Appellant was enjoying the shares of the agricultural income of his brothers and that there was piscicultural activities and plantation of trees in an area of land measuring Ac.0.46 decimals purchased by DW-20 as income of the Appellant and the extent of land in Mouza - Sahira and Sanamanga to the extent of Ac.0.91 decimals 5 kadies ought to have been included as its value to the tune of Rs.5,000/-, besides the sum of Rs.2,000/- from the land at Saliancha and further a sum of Rs.6,000/- towards sale price of the land in Aparnanagar.

18. Finally, the learned counsel vehemently urged that the learned trial court did not take into account the claim by the Appellant as regards his income from different sources and the expenditure made by him during the check period in proper prospective thereby reached an erroneous conclusion, convicting the Appellant which he claimed to be not in consonance with the evidence and prayed to set aside the impugned judgment and order of conviction.

19. Per contra, the learned counsel for the State submitted that the impugned judgment is akin to the evidence led by the prosecution and the same being consistent to the documents proved in the case justifying the conclusion arrived at by the learned trial court to hold the Appellant to have acquired disproportionate assets qua his known source of income at Rs.5,00,000/- and canvassed the impugned judgment require no interference and the same being well assessed both in fact and law deserves confirmation.

20. It is consistently propounded by the Apex Court as held in the matter of disproportionate assets, that, "the prosecution has to

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establish that the pecuniary assets acquired by the public servant are disproportionately larger than his known sources of income and then it is for the public servant to account for such excess". The offence becomes complete on the failure of the public servant to account or explain such excess. The burden of proof regarding the first limb is on the prosecution whereas the onus is on the public servant to prove the second limb. This principle has been consistently expounded by the Hon'ble Apex Court in the case of K.Veeraswamy v. Union of India (1991) 3 SCC -655, wherein it has been held that:

"It is for the prosecution to prove that the accused or any person on his behalf has been in possession of pecuniary resources or property disproportionate to his known sources of income. When that onus is discharged by the prosecution, It is for the accused to account satisfactorily for the disproportionality of the properties possessed by him. The section makes available statutory defence which must be proved by the accused. It is a restricted defence that is accorded to the accused to account for the disproportionality of the assets over the income. But the legal burden of proof placed on the accused is not so onerous as that of the prosecution. However, it is just not throwing some doubt on the prosecution version. The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily". That means the accused has to satisfy the Court that his explanation is worthy of acceptance. The burden of proof placed on the accused is an evidential burden though not a persuasive burden. The accused however, could discharge that burden of proof "on the balance of probabilities "either from the evidence of the prosecution and/or evidence from the defence."

21. The same view has been reiterated by the Apex Court in the case of Ashok Tshering Bhutia v. State of Sikkim 2011 Crl. L.J. 1770.

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22. In the backdrop of the parameter of law set out as above, this court proceeds to examine whether in the facts and circumstances of the case, the prosecution has been able to discharge its initial burden and, if so, as to whether the Appellant has been able to satisfactorily discharge the burden of proof on the balance of probabilities.

23. In this regard, having heard the parties this Court has carefully perused the impugned Judgment and on a reassessment of the evidence this court finds the prosecution to have successfully brought out cogent and clinching material attributing a clear case in respect to the acquisition of assets by the Appellant disproportionate to the known source of his income which the Appellant failed to explain against each and every article and property acquired by him during the check period extending from the year 1963 to 1990.

24. The very contention of the learned counsel for the Appellant as regards the advance received by the Appellant in respect to the sum of Rs.15,000/- claimed by the Appellant has been vividly discussed by the learned trial Court. The evidence of DW-4 in this respect goes to show that while he was Bhag tenant in respect of the agricultural land situated at village Sahira and wanted to purchase the same from the Appellant, entered into an agreement executed on 21st March, 1990 for a consideration of Rs.30, 000/- and stated to have paid Rs.15,000/- in advance. According to the witness (DW-4) since he could not arrange the balance money in course of time, the agreement for cancellation of the earlier agreement was executed and that the advance paid by him i.e the sum of Rs.15, 000/- was out of his own savings. In the evidence of this witness, there is clear indication that the agreement was executed two years prior to the visit of the Investigating Officer.

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The evidence of P.W.26 (the I.O.) reveals that the visit was in the year 1990. Accordingly, the agreement ought to have been executed in the year 1998. But the evidence tacitly discloses the agreement to have been executed on 21st March, 1990. Further, according to the evidence of DW-20, the wife of the Appellant, the agreement was registered and the cancellation of agreement proved vide Ext.F was purported to have been executed on 12th April, 1992. If the statement of DW-20 was to be believed then the agreement of cancellation could not have been executed on 12th April, 1992 as claimed. Since DW-4 stated the existence of Ext.F to have commenced 15 to 20 days prior to the visit of the Investigating Officer (PW-26), the evidence of neither DW-4 nor DW-20 could be believed as it is contrary to the document referred and proved by them vide Exbt.F. As such, the learned trial court had justly discarded the said part of claim of the Appellant and rightly did not take into account a sum of Rs.15,000/- as advance received to be read while computing the income of the Appellant at the relevant time received from DW-4.

25. Coming to the salary accumulated by the Appellant during the check period, while the prosecution claimed the salary of the Appellant to be Rs.3,55,262/-, the Appellant claimed his salary to be Rs.3,58,894/-. In this regard, the contention of the prosecution having found conceded to the effect that the net amount of Rs.1,852/- ought to have been added to the income of the Appellant, the salary of the Appellant claimed by the prosecution on the face of its own evidence comes to Rs.3,57,114/- in place of Rs.3,58,894/- has rightly been assessed by the learned trial court and in absence of any cogent evidence substantiating the claim led by the Appellant as regards his salary it could not have been accepted as Rs.3,58,849/-.

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26. On the claim of the learned counsel for the Appellant to the effect that a sum of Rs.20,000/- as loan was obtained from the brother of DW-20 is a matter that requires analysis. It is brought out in the evidence that on the occasion of marriage of Swati, the first daughter of the Appellant gifted a second-hand car and for the said purpose a loan of Rs.20,000/- was taken from the brother of DW-20. In this regard, the evidence of DW-7 has also been taken into account besides the evidence of DW-15 and DW-20. In the property statement of the eldest son-in-law Ganeswar Pradhan (Ext.43), there is a mention that he has received a 2nd hand car at the time of his marriage at the cost of Rs.54,000/-. DW-7 in his evidence initially stated that he had advanced money as loan, but later on he changed his version and stated that money belongs to his wife and he had simply handed over the same to the wife of the Appellant, DW-20. However, the wife of DW-7 has not been examined although it came out from the evidence of DW-7 that she was alive, hale and hearty. Nothing came out from the statement of DW-7 as to the source from which his wife could give the said money. Consequently, nothing could be established as to the source of wife of DW-7 giving her the capacity to advance loan. Consequently, the mere statement of another person as to have advanced money in absence of his/her examination ought not to have been accepted as a piece of primary evidence so as to give a satisfactory explanation as to the advancement of loan.

27. The trial court has rightly relied on the decision of the Supreme Court in Sreelekha Banerjee v. Commissioner of Income Tax, Bihar and Orissa (1963) 49 ITR 112, wherein it was held that:

"Version of a man of straw, posing to be a man of means that he had advanced the loan

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or had given credit would not be sufficient, unless the source of it is satisfactorily explained."

28. In the instant case, the same having not been done, it is rightly held by the learned trial court that the claim of the Appellant that a sum of Rs.20,000/- was received from DW-7 as loan is not acceptable.

29. Coming to the income from house property at Aparnanagar, the evidence set forth by the prosecution has been refuted by the defence and in the defence evidence under Ext.50 (partition deed) it is brought out that after her father's death, DW-20 out of the cash amounting to Rs.73, 000/- got Rs.40, 000/- besides the gold ornaments weighing five tolas kept in the almirah. Source of the saving of father of Manorama (D.W.20) did not come to light in the evidence. Consequently, the bald statement of D.Ws.15 and 20 that cash amounting to Rs.73,000/- was found in the almirah of Jagannath after his death seems to be a story hatched by the defence to suit to the case without a substance and hence rightly not accepted by the learned trial court.

30. The evidence to the effect that two buildings were standing in the name of DW-20 situated at Aparnanagar, Chauliaganj has not been disputed by the prosecution. However, the learned Counsel for Appellant challenged the case of the prosecution that the house in Aparnanagar stands over both the plot nos.164 and 165. According to the case of the Appellant the same stands only over plot no.164. With reference to Ext.50, it may be stated that on 4th December, 1981, by an unregistered deed all the immovable properties of Jagannath Mahanta

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were divided between Woomanath Mahanta (DW-15) and Manorama (DW-20).

31. The cost of the land and the building at Aparnanagar was estimated at Rs.60,000/- and it was given to Manorama, whereas the agricultural lands at Hanupur was estimated at Rs.25,000/- and the house at Hanupur was valued at Rs.35,000/-. Needless to say that the document referred to in Ext.50 ought to have been a registered document. It came out from the evidence of DW-15 and DW-20 that there was never any practice of registering documents in the family of Jagannath and accordingly, the said document vide Ext.50 was not registered. It is also forthcoming in the evidence of the defence that since Manorama and Woomanath did not show any interest to register the document, the same remained unregistered and upon the death of late Jagannath Mahanta, a few months after execution of the deed, the same could not be registered.

32. On examination of Exbt.50 (partition deed), it came to light that it is a tripartite agreement among the adoptive father Jagannath, Woomanath and Manorama and at one place the document states that the father of Jagannath relinquished his share in the ancestral property. However, absence of a deed of relinquishment makes whole the defence plea unacceptable. Needless to say that Section 17(1) (b) of the Indian Registration Act, 1908 provides for family arrangement and if such arrangement was in fact reduced to the form of a document for the purpose of recording the arrangement, registration was inevitable in terms of Section 17 of the said Act and absence of registration, makes the document inadmissible under Section 49 of the Registration

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Act in support of a family arrangement. The Apex Court in Sahu Madho Das v. Mukand Ram AIR 1955 SC 481 observed as under:

"it is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is; each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it, to the portions allotted to them respectively. The arrangement or compromise would set out and define that the title claimed by 'A' to all the properties in dispute was his absolute title as claimed and asserted by him and that it had always resided in him."

xxx xxx xxx "When family arrangement is reduced into writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that document requires registration because it is then that it would amount to a document of title declaring for future what rights and in what properties the parties possess.(Tek Bahadur Bhujil v. Debi Singh Bhuiil AIR 1966 SC 292)."

33. The very fact that borne out from the statement of the defence witnesses that there was never any tradition or custom of getting any document registered is certainly not an acceptable statement on the face of the requirement of law for registration of certain document. Consequently, the document under Ext.50 and the counter foils of the receipt book for rent being received by Jagannath stated to have been handed over to her (DW-20) 15 to 20 days after execution of Ext.50 is out of context in as much as the evidence while discloses that Jagannath to have purchased the paper upon which Ext.50 was

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reduced to writing bears no signature of Jagannath at the reverse page acknowledging the same to have been purchased by him.

34. Further, the signatures and addresses of the witnesses does not appear on each page of the document save and except in the last page. No date has been assigned to the signatures and the electric connection proved to have been given as evident from Ext.38 is w.e.f from 24th April 1980 whereas the application for allotment of holding was made on 12th March,1980 i.e much prior to 4th December 1981. If the claim of the defence is accepted that for the first time Manorama became the owner after execution of Ext.50 (partition deed), no explanation from the side of the defence is forthcoming as to how she could apply for electric supply, and allotment of holding to the Orissa State Electricity Board and the Municipal authorities respectively prior to that. Very surprisingly, the property statements filed in the year 1984 vide Ext.74 reveals nothing to have been mentioned about the transfer of house in favour of Manorama.

35. Furthermore, neither Manorama nor Woomanath threw any light as to the period of construction or the source from which Jagannath made the investment. The plea was taken by the defence that he was a big businessman and was carrying business on a large scale and had shops at different places, whereas DW-15 in his evidence accepted that there was no record to show that Jagannath was either paying sales tax or income tax. The defence case, therefore, is shrouded with mystery as to how and from what source investment was made in the construction as claimed by the Appellant and mere statement that Jagannath constructed the building would not be sufficient in absence of complete explanation and material to substantiate the same.

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Consequently, in absence of material to show that Jagannath had sufficient means and there was source for investment, burden on the Appellant to show that it was in fact who did it and the source of Jagannath to do it could not be proved as claimed by the Appellant.

36. As far as the question of acceptable source of investment in a case of the present nature is concerned, the onus is on the Appellant as because he has the special knowledge about how a particular asset was acquired or an investment therein was made. The onus is at least similar to that as is expressed under section 68 of the Income-tax Act, 1961, has rightly been adjudicated by the learned trial court in the light of the observation of the Apex Court in Kale Khan Mohammad Hanif v. CIT: (1963) 50 ITR 1, that "the onus is on the assesse to explain the nature and source of cash credits, whether they stand in the assessee's account, or in the account of a third party. In either case, the burden lies upon the assesse to explain the credit entry. Similar observation has also been made in Sreelekha Banerjee's case (supra) that "the assessee has a legal obligation to explain the nature and source of such credit in the books of account of the assesse. Such proof includes proof of the identity of the person who according to the accused provided the source, capacity of such person to advance or spend the money, and lastly, the genuineness of the transaction. These things must be proved prima facie by the accused and only after the accused has adduced evidence to establish prima facie the aforesaid, the prosecut6ion has to establish as to how the stand of the accused is not acceptable."

37. It is submitted by the learned counsel for the Appellant that Ext.50 could have been used for a collateral purpose and it shows as to how

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Manorama (DW-20) came in possession of the building. In essence, absence of material to show that Jagannath made investment in the buildings bears no substance and the investment has to be taken to have been made by the Appellant. It is not in dispute that declaration of assets has to be made by a Government servant in terms of Rule 21 of the Orissa Government Servants Conduct Rules, 1959. In the case in hand, it is conceded that only property statements were filed under Ext.73 and Ext.74 and there is no mention of the purpose of acquisition and it reads "establishment full ownership and further construction of house". Cumulatively, the whole thing falsifies the Appellant's stand that investment was made by Jagannath.

38. Again, as regards the cost of construction of the building, according to the prosecution, the ground floor of the building was constructed during the period 1974 to 1977 and reliance was placed on the plan submitted by Jagannath Mahanta vide Ext.18. It was originally considered that the first and second floors were also constructed during the period 1974-77. So far as the second building is concerned, there was no permission to construct the same, and relying on Exbts. 47, 48 and 49, it was claimed that the construction started after execution of the aforesaid documents (sale deeds). With reference to Ext.45 i.e. in respect of the ground floor, it is mentioned "under completion for finishing" and it is stated that the building was under finishing stage. According to the Appellant, the period of construction was between the years 1974 to 1980.

39. It is not disputed by the Appellant that certain sanitary articles were purchased vide Exts.57, 58 and 59, while prosecution states that the second building was in its finishing and completion stage because

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sanitary fittings were not fully completed, the period of construction is between 1986 to 1989. The Appellant takes the stand that the investment made by him is Rs.56, 607/-. With reference to Ext.128, the building plan, it is stated that the construction was over plot no.164 and the G.P.F loan of Rs.50,000/- was taken on 5th February,1988 vide Ext.125 for remodeling the house. The original application made for grant of G.P.F loan would have thrown substantial light on the question of the purpose for which it was taken. Strangely, the Appellant had taken away the same from official records. Further the unchallenged evidence of PW-26 in this regard amply demonstrates that the Appellant intended truth to be remained unveiled.

40. It is further stated that the cost of the structure of the second floor was Rs.17, 161/-and the rear side of the second floor was Rs.23,916/-. Exts.57 to 59 are for a value of Rs.19,486.15 paise. The sanitary portion, if adjusted from the total cost of the structure on the second floor and the rear side of the second floor would be Rs.37,121/- by taking out the sanitary cost at Rs.3,956/- It is conceded by the Appellant that a sum of Rs.56,607/- was spent by him between the period from 1986 to 1989. Considering the submission of the parties, the valuation of the two buildings as taken by the learned trial court taking into account the period for construction to be between 1974 and 1977 in the approved area as per plan is 800 sq.ft. though the actual construction was over 1500 sq.ft. The cost of the construction as per Ext.90 is as follows:

Cost of ground floor construction - Rs.45, 084/-

      Cost of first floor construction -       Rs. 35,702/-
      Cost of second floor construction        Rs. 7,096/-

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      By adding the cost of compound
      Wall, grill the cost is                Rs. 6,471/-

      Cost of the building                   Rs.94,353/-
      Electric installation charges
      In the ground floor                    Rs.5, 636/-
      -do-in the first floor                 Rs.4,463/-
      -do- in the second floor               Rs. 887/-
                                             Rs.10, 986/-

So far as water supply and sanitary installation are concerned, the costs are as follows;

      Against the ground floor               Rs. 9,636/-
      Against the first floor                Rs.9, 463/-
      Against the second floor               Rs. 887/-
     Total is worked out at                  Rs.19,986/-

So the cost of the construction of the first building including electric installation, water supply and sanitary installations comes to Rs.1,25,225/-.

41. So far as the second building is concerned, there is no approved plan, but the constructed area is over 1160 sq.ft. According to the prosecution, the first floor and the second floor were constructed during the period from 1982 to 1985. By taking the period of construction to be 1986 to 1989, the valuation has been made at Rs.2,19,842/- after deducting 12 ½ as against personal supervision. If it is certain that two buildings were not constructed simultaneously which is also stated by the Appellant and if the first building is constructed between 1974 and 1977, obviously the second building has been constructed thereafter. According to the Appellant, both the buildings were completed by 1980. Under Ext.66 it appears that for

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holding no.1005-B remittance of holding tax from the 4th quarter, 1979-80 was there, and the tax paid was Rs.202/- and the same was paid by Manorama Mahanta (DW.20).

42. In view of the above, period of construction could have been clearly ascertained if there had been approved plan. Admittedly, the constructions have been brought without any approved plan. Since Exts.47, 48 and 49 have been executed after 1968, the prosecution stand that construction commenced after 1986 seems to be acceptable in as much as Exts.57 to 59 show purchase of sanitary materials in 1989. Further, there are other materials which can be taken note of such as statement of PW-23, and valuation reports Exts.89 and 90 shows that the building under construction was not a complete one and doors, shutters were to be affixed, and painting was to be done. Furthermore, at page 4 of Ext.45, the seizure list, there is mention about state of the building and therefore, the valuation of the second building by taking its period of construction to be between 1986-89 can fairly be assessed at Rs.2,19,842/- and has rightly been accepted by the learned trial court. After giving due margin for personal supervision, etc, the value on round figures is taken at Rs.3,35,000/- for both the buildings.

43. As stated above, there are certain other features which throw grave doubt on the authenticity of Ext.50 could well be appreciated. In Exts.68 and 70, reference is made to building over plot no.164. The cost of construction over 800 sq.ft. Plinth approximately 2' below plinth level is shown to be Rs.5, 000/- which appears to be absolutely low.

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44. So far as purchase of the land in plot no.164 allegedly by Jagannath Mahanta is concerned, it is seen that the document brought by the Appellant vide Ext.S is doubtful one. Purchaser is shown to be Jagannath Mohanty, and not Jagannath Mahanta. Originally Mahanta was written, but subsequently in the deed by way of correction "Mohanty" was written. The caste of the purchaser is shown to be Karan, whereas it is accepted by Manorama that Jagannath belonged to Khandayat caste. Further, in Ext.74, though the Appellant stated about land standing in the name of Manorama in village Sahira, it did not spell the property at Chauliaganj.

45. It is relevant to mention here that there was bank balance and post office Savings of Rs.40,000/- by wife- Manorama representing "share of ancestral property (82-83)" and ornaments gold worth Rs.7,000/- being "share of ancestral property 82-83". These relates to claim of Rs.40, 000/- out of Rs.73,000/- and gold ornaments allegedly found in the almirah of Jagannath after his death. As regards the registration of the building situated at Aparnanagar, the plea that on account of ill health, registration could not be done, apart from the reasons indicated above, has no substance. According to DW-15 and DW-20 Jagannath had already prepared the document before their reaching and they only put the signatures. Further, after 15 to 20 days of execution he was fit enough to hand over old receipt books, as has been stated by DW-20 and there could be no manner of doubt that Ext.50 is not genuine document and the Appellant had not spent money for construction of the two buildings in entirety and not a portion as pleaded. The statement of DW-15 at different point vis- a-vis Ext.50 seems to be inconsistent and hence, this very evidence raises doubt that Jagannath was source for meeting construction expenses and money allegedly

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found in almirah. It is more so in absence of any formidable evidence to show that he had the means to do so and the plea of the Appellant in this regard deserves no merits for consideration as rightly observed by the learned trial court.

46. So far as the expenses incurred by the Appellant during the check period is concerned while the prosecution projected the Appellant to have incurred expenses to the tune of Rs.5,42,837.16, the Appellant claimed it to be Rs.3,29,844.76. The disputed items against which the assessment has been made by the learned trial court are food and clothing, electricity charges, educational expenses, stamp and registration charges and marriage expenses of daughters. Consequently, this court finds it necessary to delve in to a scrutiny of the evidence against these heads of expenditure.

47. As against food and clothing while the prosecution assessed the Appellant to have incurred expenses to the tune of Rs.2,41,697.71, the Appellant claimed his expenditure in this head to be Rs.1,76,277.71. As against electricity charges, the prosecution assessed the expenditure to be Rs.9,791.99, whereas the Appellant claimed the expenditure in this head to be Rs.5,201.00. As against the educational expenses while the prosecution projected the Appellant to have incurred expenses to the tune of Rs.25,328.26, the Appellant claimed to have spent Rs.23,482.56.

48. So far as the expenses against the Stamp and Registration charges are concerned, the prosecution while assessed the expenses of the Appellant in this head to be Rs.3,098.50, the Appellant claimed the same to be Rs.1,840.50. Similarly, as against the marriage expenses of the daughters, while the prosecution assessed the expenditure of the

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Appellant to be Rs.2,50,000/-, the Appellant claimed it to be Rs.1,10,000/-.

49. There is, however, no dispute with regard to the expenses incurred by the Appellant in respect of the Municipality tax to the tune of Rs.2,272/-, premium against LIC to the tune of Rs.1984.20, M.V.Tax for scooter at Rs.1329/-, locker fee in the U.Co.Bank at Rs.475/- and finally telephone charges of Rs.6,490/-.While substantiating his claim contrary to one assessed by the prosecution, the Appellant made a feeble attempt in bringing the positive evidence failed to substantiate the same. In other words, while the assessment of the prosecution as regards the expenditure incurred by the Appellant in so far as the food and clothing is based upon the National Sample Survey report pertaining to Ext.37, no basis could be assigned to his claim by the Appellant.

50. However, there is some variation in the assessment made by the Prosecution with that of the claim of the Appellant keeping in view the place of his posting as in Urban and Rural areas and accordingly, there has to be a reduction of the amount of expenses as one assessed by the prosecution on the basis of N.S.S report. In absence of any cogent evidence subscribed from the side of the Appellant vis-a-vis the well accepted standard of expenditure prudently to be incurred by a person in normal course of his leaving, no amount of importance can be given to the figure assessed by the Appellant, meaning thereby, in the instant case while the prosecution based its assessment of the expenditure incurred by the Appellant against the food and clothing on a standardized format basing on a reasonable assessment, the claim of the Appellant being not based on any principle cannot be sustained

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save and except the one assessed by the learned trial court as found vividly narrated against each and every aspect of the manner of living and place of posting of the Appellant at the relevant time. Consequently, this Court finds no reason to differ with the assessment made by the learned trial court on the expenditure shown to have been incurred by the Appellant against food and clothing.

51. Similar is the assessment on expenditure incurred by the Appellant against the electricity charges, educational expenses, Stamp and registration charges and marriage expenses of the daughters of the Appellant. The evidence adduced from the side of the prosecution in these heads to assess the accurate income and expenditure of the Appellant is based on the documents and by giving a pragmatic approach to reach a logical end. On the contrary, the Appellant miserably failed to substantiate the plea propounded by it in as much as non of the explanation forthcoming in the evidence from the side of the defence could be one where the source of income is disclosed in respect to the gift or loan received.

52. The statement of the defence witnesses in this regard is also scanty since they did not give account of their financial capacity to extend loan or gift of gold to the Appellant on the occasion of the marriage of his daughters or otherwise thereby falsifies the claim of the Appellant. To be more specific, in her evidence, the wife of the Appellant (DW-

20) stated that she had received 20 to 25 tolas of gold at the time of her marriage whereas no such mention has been made in the property statement of the Appellant submitted to his authority in the year 1966 and 1984.

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53. Further, while not disputing the fact that the gold ornaments were received at the time of marriage of the daughters, great emphasis was led on the ward "received by way of gift from the friends and relatives". In absence of any tangible material as to who were the person who gifted the gold ornaments and if those persons have the capacity to gift such ornaments and further that in reciprocity whether the Appellant had any occasion to gift such gold ornaments to such persons raises a strong eyebrow to the conduct as regards to the acceptance of gold of such quantity from the friends and relatives. The property statement under Ext.43 shows that 25 tolas of gold were received by Swati, the daughter of the Appellant from the sources of friends and relatives while her husband received 5 tolas from the relatives.

54. As far as the 2nd daughter of the Appellant is concerned, it is stated that there was no demand of dowry. It is forth coming in the evidence of the defence that the eldest son-in-law received Rs.30 tolas from his friends and relatives at the time of marriage. According to the prosecution, the valuation of gold found with the Appellant is assessed at Rs.90,000/- and other expenses made has been valued at Rs.35,000/-. The Appellant while did not dispute the other expenses assessed by the prosecution, disputed the valuation made on the gold. According to the Appellant, the 2nd daughter (DW-19) had received 10 to 12 tolas from her parents and the balance 8 tolas were given from her father-in-law's side. DW-20, the wife of the Appellant on the contrary stated that 4 to 5 tolas of gold were given at the time of marriage of her 2nd daughter. DWs.15, 16 and 22 stated to have gifted gold articles. No evidence, however, has been led to show receipt of gold from the side of father-in-law. Further, in the property statement

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filed by the son-in-law vide Ext.41, there is mention of 30 tolas of gold received from friends and relatives during the marriage ceremony. The property statement, apparently found in variance with the statement DW-19 who puts the figure at 20 tola to have received from her parents' side and in-laws side. Be that as it may, the assessment made by the learned trial Court as regards the valuation of the gold received through gift with minute assessment by reaching a logical conclusion to the extent of Rs.75,000/- in place of Rs.90,000/- assessed by the prosecution appears reasonable. There is neither any exaggeration nor inaccuracy in calculation and hence is acceptable.

55. A similar approach has been given to the assessment on the expenses incurred in the overall marriage expenses of the daughters of the Appellant by the learned trial court. The detailed analysis of the evidence to arrive at the assessment by the learned trial court being based on a reasonable approach requires no interference.

56. Coming to the quantum of assets of the Appellant acquired from different sources such as the property held by him at Chauliaganj, the agricultural land, cash found during search and the car possessed by him besides the bank deposits, the accrued interest and the other house hold articles except the rent received from the house situated at Aparnanagar, it can be held that the projection made in the assessment by the prosecution does not vary much to the assessment of the Appellant and the final assessment made on those aspects by the learned trial court with a microscopic analysis seems quite reasonable and does not deserve a different view by this Court.

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57. As regards the house rent, according to the prosecution, the Appellant received a sum of Rs.64,850/-, whereas claims the same to be Rs.2,03,150/-. While the prosecution found the Appellant to have inducted seven tenants at different points of time, the Appellant claimed the number of tenants to be thirteen. The counter foils of the receipts as against the rent produced in course of evidence vide Ext.B to B/13 and C to C/37 assumes importance. The evidence brought from the side of the defence through some of the tenants such as DWs-18, 21, 14, 13 and DW-17 need be examined.

58. According to the Appellant, the learned trial Court ought to have accepted the consistent evidence of the tenants such as DWs-2, 11, 18 and DW-21 who supported the documentary evidence such as the rent receipts issued against their staying in the building since 1980 and the payment of rent made by them to late Jagannath Mahanta till 1980 and to Manorama (D.W.20), the wife of the Appellant from 1982. It is submitted by the learned Counsel for the Appellant that the learned trial Court ought to have accepted the contentions of the defence as regards the receipt of rent instead of giving much importance to the electrical and water charges since prior to transfer of holding in the name of DW-20 in the year 1982 the agreement was entered into between DW-15 and DW-20 in respect to the land and building at Aparnanagar i.e much prior to the actual transfer.

59. Having regard to the argument of the Appellant as above, on scrutiny of the evidence it is seen that the counter foils of the receipts produced from the side of the defence speaks a different view as one urged by the Appellant. As regards the production of the rent receipts, the explanation offered by the Appellant is that these receipts were in

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a bag and did not receive notice by the raiding party during the search. In this regard, the Appellant placed emphasis on the evidence of PW-7 and PW-8 who referred to the counter foils proved under Exts.B to B/13 and C to C/37. It is the accepted case of the Appellant that there was no disclosure of counter foils by him at any point of time till the same were produced for the first time during trial. The explanation of the Appellant that it did not receive the notice of the raiding party, in the circumstance of the case, is not believable in as much as a large number of documents having seized, chance of going unnoticed of the bag containing such huge number of counter foils seems improbable.

60. Even if, it is accepted for the sake of argument that the prosecution witnesses have made reference to the counter foils, evidence of PW-7 and PW-8 clearly suggest the defence version to be a false since the house rent was being paid to Manorama as the owner of the house. According to PW-7 he was a tenant in the house of Sri B.C.Roul who received the rent and he is none other than the Appellant himself. He further stated that the original receipts which were issued bear the signatures of B.C.Roul, the Appellant. So far as PW-8 is concerned, he too has stated that he was a tenant in the house of Sri B.C.Roul, the Appellant. According to him, usually Mrs. Roul (DW-20) used to issue the receipts. It is the case of the Appellant that the receipts were issued by Manorama (DW-20).

61. So far as the counter foils are concerned apparently it does not appear to be genuine since it is written by different inks by different persons. Interestingly, DW-13 stated that he had never seen the counter-foils prior to seeing them in Court. DW-20 stated that her son Saurav and tenants used to write the counter-foils of the receipts.

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Consequently, there is no unanimity in the statement of the DWs. In some counter foils, also the material aspects have been scored out and rubbed. The witnesses mostly could not say the details of the rooms of the building which they were occupying and the size of the rooms in their possession. DW-18 stated that he had seen the counter-foils for the first time in the court and further stated that he does not recollect whether the rent which was paid included water and electricity charges.

62. Further from the evidence of DW-2 it appears that he was curious enough to protect the Appellant and did not even give positive answer in respect of certain query. All the DWs claimed that they have put their signatures, amount and date. Surprisingly, the receipts were not written by Manorama while she was a educated lady. As regards to the version of DW-12, he has accepted that his father was a tenant, but his father has not been examined. No reason has also been assigned for non examination of his father. Whereas all the tenants and PW-7 and PW-8 have categorically accepted that there was no written agreement for tenancy. There was also no fixed term as regards the date by which the rent is to be paid. DW-14 could not say as to who were the neighbours in the building of Sri B.C. Roul. The rent receipts show that the payment of rent has been made even before the month was over. Illustratively, in case of DW-14 for the month of May, 1987 rent was paid in the month of May, 1987 itself. DW-17 claimed himself to be a broker. Though he failed to prove his license to that effect, he has no idea about the number of rooms and number of quarters in the building in question.

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63. So far as DW-21 is concerned, he stated that he belonged to the neighbouring village of Sri B.C.Roul and deposed in the case as per the advice of the Appellant's counsel. He too accepted that in receipt nos.4 and 8 of Book No.IV, the name was subsequently inserted and originally what was written was rubbed off. In receipt no.13, dust has been rubbed and the portion relating to name of tenant was rubbed off and his name has been inserted. He further accepted that he did not know who were neighbours and when he came to be a tenant and about the number of quarters. Furthermore, he stated that he was told by Jagannath Mahanta to pay rent to Manorama. But he does not remember the month and year when Jagannath told him. He also stated that in receipt no.4 there was no mention about the month for which the rent was paid and in receipt no.6 the figure Rs.150/- has been corrected to Rs.1,050/-. Similarly, in receipt no.16 he accepted that the holding number has been corrected and in receipt nos.6 and 11 signatures of Manorama were different and that he did not know what amount was to be paid as electricity and water charges. More surprisingly, in his evidence DW-1 stated that he does not know who were co-tenants and accepted that in his official correspondence, address was given to be the house of Sri B.C.Roul.

64. According to DW-10,in the receipt dated 5th June 1989 originally the name was written as P.S. Jena and was written in different handwritings under Ext.J. He too accepted that in receipt no.1, the name has been rubbed off and Jagannath Mahanta's name has been inserted. In receipt no.12 there is overwriting in respect of the month and tenant's name has been scored through and the name of Dinabandhu Sahu has been inserted. Similarly, in receipt no.18, there was correction and in receipt no.7 Dinabandhu's name has been

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scored through and total amount has been corrected. He too stated that he cannot say whether the house belongs to Manorama.

65. So far as DW-20 is concerned, she stated that she cannot say who were the tenants in 1980 and stated that the signatures appearing in Exts.D/1 to D/4 and Ext.50/A-2 are different and those are her signatures. Further, the signature in the application for income certificate (Ext.R) and the depositions are clearly different. DW-20 states that the counter foils under Ext.D/9 is stated to be issued by P.S. Panda and written by P.S. Panda himself but in respect of others she cannot say who wrote the same. She even could not say as to who were the tenants in 1981, 1983 and 1984.

66. In view of such discrepancy in the evidence forthcoming from the side of defence, both through documents and oral, deters this Court to have any reliance on it to support his case. The fact however, that Exts.142 and 143 suggests that no mention to have been made about separate payment of electricity and water charges in absence of any document substantiates that there was any agreement for payment of water and electricity charges separately and in view of the unsatisfactory nature of evidence, the plea of the defence cannot be accepted that the water and electricity charges were being separately collected and the advance was received against it. Further in absence of any evidence, it cannot be accepted that Sadhu Charan Nayak, Golakh Patra and Bimbadhar Jena were the tenants under the Appellant. Consequently, the amount as against the rent can fairly be taken as Rs.1, 45,000/- as correctly assessed by the learned trial court.

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67. Coming to the asset accrued through interest is concerned, while the prosecution assessed the same Rs.5,282/-, the Appellant claimed the same to be Rs.9,559/-. In this regard, the evidence through Exts. 61 and 62 besides Exts.140, 141 and Ext.W appears to be correct and accordingly the income through interest claimed by the Appellant at Rs.9,559/- is correct.

68. So far as the share of income from ancestral agricultural property is concerned, on scrutiny of the evidence, the learned trial court seems to have gone in minute detail and requires no further analysis, but to accept that the same is one projected by the prosecution is absolutely correct and the claim made by the Appellant stands not established.

69. So far as the claim of the Appellant as regards the income to the tune of Rs.6,000/- as against the sale of land has been duly proved and the same is accepted.

70. In absence of any other claim under challenge by the Appellant, this Court has no hesitation to arrive at the conclusion that the learned trial Court has rightly assessed the allegations vis-à-vis the evidence and the same requires no interference.

71. Having regard to the nature of evidence already brought by the defence during trial, the documents sought to be brought through additional evidence as prayed for in the Petition U/s 391 Cr.P.C in Misc. Case No 99 of 2007, in absence of a plausible explanation as to the diligence shown in bringing those documents during trial cannot be accepted. This is more so, because such a petition has been made not even at the time of filing of the Appeal but after a period of 12 years thereof, therefore, serves no fruitful purpose and hence dismissed.

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72. The CRA accordingly stands dismissed being devoid of merit.

73. Now, the Court is confronted with the question if the quantum of punishment awarded by the learned trial court requires modification keeping in view lapse of considerable time from the fact that the Appeal was filed in the year 1995 and it took about 27 years to conclude. As submitted by the learned counsel, the Appellant has reached the age of 87. In such eventuality insisting for his incarceration for the entire period of 3 years as awarded by the learned trial court seems not proper. Considering therefore, the age of the Appellant, this Court feels proper to award the minimum period of imprisonment as prescribed U/s.13 (2) of the (old) Act and as such sentence the Appellant to undergo simple imprisonment for 1(one) year and to pay fine of Rs. 5, 00,000/- (Rupees Five Lakh), in default of payment of fine to undergo simple imprisonment for a further period of 4(Four) months. Modified warrant be issued accordingly.

74. The bail bond is hereby cancelled. The Appellant is directed to surrender forthwith and, in any event, not later than 15th October, 2022 failing which the IIC concerned will take steps to take him into custody to serve out the sentence.

(Chittaranjan Dash) Judge

(Dr. S. Muralidhar) Chief Justice

KC Bisoi, Secretary/ B.C.Mohanty