Orissa High Court

Alok Prakash Rout vs State Of Orissa And Another on 13 February, 2025

          THE HIGH COURT OF ORISSA AT CUTTACK

                       CRLA No.899 of 2024

(In the matter of an appeal under Section 11 of Criminal Law Amendment
Ordinance, 1944)



Alok Prakash Rout             .......                     Appellant

                              -Versus-

State of Orissa and another    .......                     Respondents

For the Appellant : Mr. Bibudhendra Kumar Rath, Advocate

For the Respondents : Mr. Sanjay Kumar Das, Standing Counsel, (Vigilance)

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 21.10.2024 : Date of Judgment: 13.02.2025

S.S. Mishra, J. The present Criminal Appeal has been filed by the

appellant under Section 11 of Criminal Law Amendment Ordinance,

1944. The appellant has assailed the order dated 23.12.2023 passed by

the learned Special Judge, Vigilance, Cuttack in Criminal. Misc. Case No.09 of 2015 (09/2015) arising out of T.R No. 65 of 2013

corresponding to Cuttack Vigilance P.S Case No. 35 of 2006, whereby

the application moved by the State under Section 3 of the Criminal Law

Amendment Ordinance, 1944 has been allowed and the interim order of

attachment dated 24.06.2016 passed against the scheduled property of

the present appellant has been made absolute.

2. The matter was taken up by this Court on 29.08.2024 in CRLREV

No.214 of 2024 and the following order was passed:-

"1. In the present petition, the petitioner has assailed the order dated 23.12.2023 passed by the learned Special Judge, Vigilance, Cuttack in Crl. Misc. Case No.09 of 2015 (09/2015), whereby the application moved by the State under Section 3 of the Criminal Law Amendment Ordinance, 1944 has been allowed and the order of attachment has been passed.

2. Mr. Das, learned Standing Counsel appearing for the opposite party-Vigilance Department, at the outset, points out that against the order passed under Section 3 of the Criminal Law Amendment Ordinance, 1944, the petitioner ought to have filed an appeal under Section11 of the Ordinance, 1944.

3. At this stage, Mr. Rath, learned counsel for the petitioner makes an oral prayer to convert the Criminal Revision to an appeal.

4. Considering the submissions made by the learned counsel for the parties, the oral prayer of the learned counsel for the petitioner is allowed.

5. The Registry is directed to renumber the present case changing the nomenclature from "Criminal Revision" to "Criminal Appeal". After renumbering the case, the matter be listed before the assigned Bench, subject to the approval of the Hon'ble Chief Justice."

Accordingly, the present Criminal Appeal has been registered.

3. The prosecution case, in short, is that, the accused persons,

namely, Arjuna Charan Rout (Respondent No.2 in this Appeal) and his

wife had accumulated disproportionate assets to the tune of Rs.

21,78,188/- which is 61% over their known source of income. In this

regard, F.I.R. was registered vide Cuttack Vigilance P.S Case No. 35 of

2006 corresponding to T.R Case No. 65 of 2013, whereby the accused

persons were charged for the alleged commission of offences under

Sections 13(2) /13(1)(e) of the Prevention of Corruption Act, 1988 read

with Section 109 of I.P.C. The present appellant is the son of the accused

persons. During the investigation, the I.O. discovered that a four-storied

building has been built over the piece of land that is purchased in the

name of the present appellant and his deceased brother when they were

both minors. Basing on these findings during the investigation, the I.O.

factored the appellant's alleged self-acquired property, located in Mouza

Arunoday Nagar, Cuttack vide Plot No. 604 and measuring an area of

Ac.0.067 decs., on the count of disproportionate assets of the principal

accused. After filing the charge sheet, as there was apprehension of sell

of the above building standing over the plot by the appellant, the

prosecution (Respondent No.1) filed an application under Section 3 of

the Criminal Law Amendment Ordinance, 1944, vide Misc. Case No.

9/2015 to attach the appellant's property until the disposal of the case.

The appellant and Respondent No.2 (accused) filed their objections, the

learned trial Court after hearing both the parties directed attachment of

the scheduled property.

4. Being aggrieved by the aforementioned attachment order dated

23.12.2023 passed by the learned Special Judge, Vigilance, Cuttack, the

appellant has preferred the present Appeal.

5. Heard Mr. B.K. Rath learned counsel for the appellant and S.K.

Das, learned Standing Counsel for the Vigilance Department.

6. Mr. Rath, learned counsel for the appellant precisely submitted

that, the property in issue was purchased by the appellant's maternal

grandfather, Gajendra Roul, who was serving as Asst. Foreman in Tata

Company using his retirement benefits and due to love and affection,

such property was purchased in the name of appellant and his deceased

brother who were minors during the time of purchase. Now the appellant

is the sole owner, who is an income tax assessee, and constructed the

house on the said land by availing bank loans. Learned counsel further

submitted that, there is no contribution or nexus exists between the

accused persons and the property in subject. The appellant had obtained

permission from Cuttack Development Authority (BP No. 685/1998) to

construct a double-storied building and also availed housing loans (Rs.

9,90,000/- and Rs. 4,00,000/-) from Allahabad Bank, where the monthly

rental obtained from the tenant are adjusted towards the monthly

instalments to repay the loans. Learned counsel had further submitted

that learned Trial Court has failed to appreciate the aforementioned

pivotal facts of this case which clearly proves the ownership of the

appellant over the scheduled property.

7. Learned counsel for the appellant further submitted that after

completion of the house, the appellant approached the Allahabad Bank to

rent out the said house on monthly rent basis as it being mortgaged

before the Bank and out of monthly rent, the monthly installments shall

be adjusted towards the loan. The Bank has also agreed for the said

proposal and entered into tripartite agreement with the tenant. He has

also submitted that the property in question and its sale deed are not

seized by the Investigating Agency except measurement and calculation

made by the J.E., Vigilance Department, which is mentioned in serial

No.39 of the seizure list and it is natural that when the property and its

title documents are not seized, the same cannot be factored the

prosecution case.

8. Learned counsel for the appellant further submitted that it is

doubtless that the property in question is the self acquired property of the

appellant. The accused persons have no contribution towards purchase of

land and construction thereon. The said property and building has no

nexus with the case of the prosecution against the accused. Therefore, he

prayed for recall of the attachment order passed by the learned trial

Court.

9. On the contrary, Mr. Das, learned Standing Counsel for the

Vigilance Department has vehemently opposed the contentions of the

appellant and to prove the nexus between Respondent No.2 and the

purchaser of the property, he has relied upon the charge-sheet in extenso.

He has also submitted that the I.O has rightly factored the appellant's

alleged self-acquired property on the count of assets of the principal

accused, as the property has been purchased on 07.10.1994, which falls

within the check period of 01.01.1990 to 31.01.2004. It is evident from

the sale deed that at the time of registration of the property, the appellant

and his younger brother were minors. He further submitted that the

appellant had never submitted any substantial document which may

establish that his maternal grandfather was working as Asst. Foreman

except one affidavit which is prior to execution of the sale deed.

10. Mr. Das, learned counsel for the Vigilance has further brought my

attention towards inconsistency in the value of the consideration of the

scheduled land reflecting in the documents relied upon by the appellant,

which clearly shows the deceitful intention of the respondent No.2 to

acquire assets disproportionate to his known source of income. The value

of the scheduled land as mentioned in the agreement to purchase is Rs.

3,00,000/- (Three lakhs), whereas the value mentioned in the sale deed is

Rs 81,000/-. At the same time in the affidavit furnished by the

appellant's maternal grandfather, the value of the scheduled land has

been mentioned Rs. 1,00,000/- (Rupees one lakh). Three documents

which have been seized by the Vigilance Department reflects three

different valuation of the property, that itself speaks volume about the

complicity.

11. Mr. Das, learned counsel for the Vigilance Department also

submitted that even if the documents relied upon by the appellant is

taken into consideration, it fails his case because the valuation of the

property reflecting in all the documents are contrary to each other.

Therefore, it is inevitable for the appellant to thrash out the disputed

question of facts in the trial alone. In that view of the matter, the

attachment order passed by the learned trial Court cannot be interfered

with. He further submitted that it is apparent on record that out of the

immovable assets, pursuant to the investigation by the Vigilance

Department, the land standing in the name of the appellant and his

younger brother (when both of them were minors) was purchased by

Arjun Charan Rout (Respondent No.2), their father and in their names,

through maternal grandfather, namely, Sri Gajendra Roul as guardian of

the minors by paying the entire consideration amount to the vendor of

the land. He has also submitted that the father of the appellant within the

above mentioned check period, spent huge amount of Rs.29,29,902/- by

constructing four storied building over the said land.

12. I have carefully gone through the record placed before me and

taken into consideration the submission made by the learned counsel for

the parties. All the arguments advanced by the appellant have been duly

taken into consideration by the learned trial Court in the impugned order.

Relevant would be to reproduce the operative part of the impugned

order:-

"Perused the case record i.e. the present misc. case as well as materials available in T.R. Case No.65 of 2013. After initiation of Cuttack Vigilance P.S. Case No.35 of 2006 U/s. 13(2) r/w section 13(1)(e) of Prevention of Corruption Act, 1988, investigation was taken up and

after completion of investigation charge-sheet has been submitted against the opp. Party No.1 and his wife namely Smt. Jyoshnarani Roul @ Rout for the offence U/s. 13(2) r/w section 13(1)(e) of Prevention of Corruption Act, 1988 and section-109 of IPC as they were found in possession of disproportionate assets to the tune of Rs.21,78,188/- i.e. 61%. The investigating agency has taken the check period in this case from 01.01.1990 to 31.01.2004. The schedule property purchased vide registered sale deed No.3549 dt.07.10.1994. Fact remains that on the date of search by vigilance personnel there exist four storied building over the said land and according to the prosecution a sum of Rs.29,29,902.00 has been spent for the said construction. There is no quarrel over the matter that the schedule property purchased in the name of opp. party No.2 and his deceased brother represented through their maternal grand father for a consideration amount of Rs.81,000/- and the consideration amount had been paid through bank draft. Though it has been contended by the opp. parties that the maternal grand father was working as Foreman in TATA company but, not a single scrap of paper has been produced in this regard. There is no material to show that the consideration money paid through bank draft was the hard earned money of the grand father of opp. party No.2. Besides the above though it is contended that by availing loan the opp. party No.2 had made construction of four storied building over the scheduled property, the same can be adjudicated during course of trial of the case, particularly, when it is the contention of the prosecution that the estimated value of the scheduled property is Rs.3,10,902.00/- and are part of the disproportionate assets besides the other assets accumulated and possessed by the opp. party No.1 beyond his known source of income which he could not account for. It further reveals from the case record that the vigilance wing during course of investigation has seized as many as twenty four registered sale deeds including the

present registered sale deed. The apprehension of the petitioner is that in case of alienation of transfer of the scheduled property is depicted in the schedule property during pendency of the trial, the prosecution will suffer irreparable loss. On examination of the entire materials, it prima-facie appears that the schedule property acquired by the opp. parties is an disproportionate to the known source of income of opp. party No.1 and existence of apprehension is that the opp. parties may alienate or transfer the same, which would definitely cause irreparable loss and prejudice to the State. On the other hand if the ad interim order will become absolute, the opp. party No.2 will not be prejudiced in any manner. Earlier this court vide order dt.24.06.2016 attached the schedule properties. Admittedly, the opp. parties has not challenged the said order before the higher forum, as such it has attained its finality. For the discussion made hereinabove, I find force in the contention of the petitioner. Hence, the order:-

The Criminal Misc. Case is allowed on contest against the Opp. parties. The order dt.24.06.2016 is hereby made absolute. The opp. parties are hereby restrained from alienating, pledging or transferring the immovable property as depicted in the schedule of the present proceeding in any manner whatsoever till disposal of T.R. No.65 of 2013."

13. It is relevant to point out that vide order dated 24.06.2016, the

learned trial Court passed the interim attachment order vis-à-vis the

property in subject. The said interim order has not been challenged by

the appellant before any forum. The learned trial Court by the impugned

order dated 23.12.2023 has confirmed its earlier interim order dated

24.06.2016. Perusal of the impugned order makes it abundantly clear that

the appellant himself has relied upon the documents to substantiate his

case which are contradictory in terms. Hence, the disputed question of

fact emerging out of the case placed before the learned Court below by

the appellant himself needs to be segregated. With so much of disputed

facts being brought on record by the appellant, it is crucial to separate

the grain from the chaff. That discernibly could happen in the trial alone.