High Court
Case Details
Crl.A. 143/2010 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI By the judgment and order, dated 24.08.2010, passed, in Special Case No. 06/2007, by the learned Special Judge, Guwahati, Assam, the accused-appellant, namely, Manoranjan Kalita, stands convicted under Section 13(1)(e) read with Sec tion 13(2) of the Prevention of Corruption Act, 1988 (in short, ’PC Act, 1988’) and sentenced to suffer rigorous imprisonment for 2 (two) years and pay fine of Rs. 25,000/- and, in default of payment of fine, suffer rigorous imprisonment f or a further period of 3 (three) months. 2.
Legal Reasoning
The case of the prosecution may, in brief, be described as under: (i) On the basis of an enquiry, conducted by the Vigilance and Anti Corr uption, Assam, Guwahati, a First Information Report (in short ’FIR’) was lodged, alleging, inter-alia, thus: Accused Manoranjan Kalita (i.e., the appellant here in) was appointed, on 01.04.1970, as Range Officer in the Department of Soil Con servation, Government of Assam, at the pay scale of Rs. 375/- and, later on, he was promoted to the rank of Divisional Officer and posted to various places in A ssam. During the period of his service, from 01.04.1970 to 31.12.1992, he acqui red properties, both movable as well as immovable, worth R s. 7,52,992/-, approximately, either in his own name or in the name of his famil y, which were found to be disproportionate to his known source of income. Based on the FIR, the Anti Corruption Branch Police Station Case No. 2/1995, under Se ction 13(1)(e) read with Section 13(2) of the PC Act, 1988, was registered and i nvestigation commenced accordingly. (ii) During investigation, a large number of documents were seized. Following the investigation, final report was submitted, under Section 173(2)(i) CrPC, to the effect that there was no sufficient material for the purpose of enabling the investigator to take the view that the accused had, at any point of time, eithe r in his possession or in the possession of his family, property, movable or imm ovable, the value whereof exceeded his known source of income. However, this f inal report was not accepted, the investigation was carried further and, eventua lly, a charge-sheet was laid, under Section 13(1)(e) read with Section 13(2) of the PC Act, 1988, against the accused. 3. At the trial, when a charge, under Section 13(1)(e) read with Section 13 (2) of the PC Act, 1988, was framed against the accused, the accused pleaded not guilty thereto. In support of their case, prosecution examined altogether 11 (eleven) wi 4. tnesses. The accused was, then, examined under Section 313 Cr.PC and, in his ex amination aforementioned, he denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of de nial. 5.
Legal Reasoning
I have heard Mr. D. Talukdar, learned counsel for the accused-appellant Having, however, found the accused guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sent ence against him as mentioned above. Aggrieved by his conviction and the sentenc e, which has been passed against him, the accused, as a convicted person, has pr eferred this appeal. 6. . I have also heard Mr. K. A. Mazumdar, learned Addl. Public Prosecutor, Assam. 7. While considering present appeal, it may be noted that PW1 (Birendra Kr. Das), a retired Executive Engineer, PWD, was the one, who had, admittedly, ass essed the value of the residential building of the accused-appellant, the valuat ion of the building being Rs. 7,13,589/-. 8. In his cross-examination, PW1 has admitted that he did not visit the sit e himself and that he has made the assessment on the basis of the measurements o f the building, which had been collected by his subordinate field staffs. The m embers of subordinate field staff, who were, according to the evidence of PW1, i nvolved in taking measurements of the said building, have not examined at the tr ail. However, the correctness of the valuation, made by PW1, was never disputed or challenged. 9. Notwithstanding, therefore, that PW1 was not the person, who had visited the site, his assessment of the valuation of the building, in question, was nev er questioned. 10. As far as PW2 is concerned, his evidence is to the effect that he used t o purchase milk from the appellant on payment. Similarly, PW3 has deposed that the wife of the accused had a nursery and was in the business of sale of articl es of nursery. 11. So far as PW4 is concerned, he is a witness to the seizure of certain do Lending support to the evidence of PW3, PW5 has deposed that the wife of the accused had a business of flowers and, in the year 1980, the wife of the ac cused took a loan of Rs. 20,000/- from one Rajib Ahmed in his presence. This ap art, the undisputed evidence of Rajib Ahmed (PW6) is that he (PW6) gave an amoun t of Rs. 20,000/- to the appellant’s wife as loan. 12. cuments. 13. PW7, who was a Police Officer, at the relevant point of time, in the Ant i Corruption Department, Assam, merely seized some documents. PW8 is the Investi gating Officer, who had submitted the final report. PW9 is also a Police Office r, who, on having found nothing against the accused-appellant, had submitted the final report. PW10 was the one, who had submitted inquiry report alleging the accused appellant to have been in possession of assets disproportionate to his i ncome. As can be clearly seen from what have been brought on record is that exc 14. ept the value of the building, as assessed by PW1, nothing else was brought on r ecord to show as to what was the known source of income of the appellant. 15. The above discussion of the evidence on record brings me to PW11, who ha s, eventually, submitted the charge-sheet and who had prepared a list of assets and liabilities of the appellant as well as his income and expenditure. 16. What is, now, of immense importance to note is that the prosecution did not examine any witness, who had the knowledge as to what had been the known sou rce of income of the accused-appellant. 17. While considering the commission of an offence, under Section 13(1)(e) o f the PC Act, 1988, it is relevant to note that the initial burden to prove, tha t either the accused or any member of his family had, at any point of time, been in possession of property disproportionate to his known source of income, lies on the prosecution. If the initial burden is not discharged by the prosecution, the onus does not shift to the accused to offer his explanation as to how he co uld have ever been in possession of, either directly or through some other membe r of his family, in possession of property disproportionate to the known source of income. 18. In the case at hand, while the assessment, as regards the value of the p roperty of the accused-appellant, has been provided by PW1, there is no evidence whatsoever of any person claiming to have the knowledge of any known source of income of the accused. 19. Merely submitting a list of assets and liabilities is not enough to attr act the offence under Section 13(1)(c) of the PC Act. Someone has to prove the correctness of the entries made in such a list. 20. In order to sustain an offence, under Section 13(1)(e) read with Section 13(2) of the PC Act, 1988, three essential conditions are required to be satisf ied. Firstly, the prosecution has the burden to prove that the value of the pro perty or properties, which the accused was alleged to have had in possession, ei ther personally or through any member(s) of his family. Secondly, there must be proof of known source of income and, thirdly, there must be proof that properti es, in question, are disproportionate to known source of income. In short, thus , the prosecution ought to have, in the present case, disclosed, on record, with the help of evidence, as to what known source of income of the accused-appellan t had been. If mere valuation of property of the accused is given without provi ding or adducing any evidence with regard to the income of the accused from his known source, the prosecution cannot be said to have discharged its burden of ha ving proved the offence, under Section 13(1)(e) read with Section 13(2) of the P C Act, 1988, and, until the prosecution discharges its initial burden of proving its case, the onus does not shift to the accused to satisfy the Court with his explanation, by adducing evidence, that either the valuation of his property has not been correctly done, or that his known source of income, or in the light of his known source of his income, he has never been in possession of property or properties disproportionate to his known source of income. 21. In the case at hand, as already indicated above, no one has been examine d by the prosecution, who has any personal knowledge, or knowledge based on docu ments, as regards the known source of income of the accused-appellant. In the circumstances indicated above, the prosecution could not have bee 22. n held to have proved its case beyond reasonable doubt against the accused-appel lant. Consequently, the accused-appellant, in the facts and attending circumsta nces of the present case, ought to have been acquitted. Because of what have discussed and pointed out above, this appeal succee 23. ds. The impugned conviction of the accused-appellant and the sentence passed ag ainst him by the judgment and order, under appeal, are hereby set aside. The ac cused-appellant is held not guilty of the offence, which he stands convicted of and he is acquitted of the same. 24. 25. of. Send back the LCR. With the above observations and directions, this appeal stands disposed