•'•li-T /"•• ;ntr;-»;f~!Tl . "^sfi"* :-:'f"*'?-: TA T*'T*T*':rv*<-.i' T^'r'T 'A T* "n'TT •t! IN'THE HK3H COBRT'CF:;C8MlTTIS3ft.gl3AT~BIIASp@R, ^SPc&L ;ON££fiSB^TION' 374 ® ,THE C®e:.,®:: S.MStXgB.i..:- ,:%:$:i-|g| CRMI»LA»aL-NO ..••^ L/2<--^< ..••'•• s^ "^' Kristina Ruraar .Staife:3fi, ' • : . • • . ' S/.ei' .^i K.lsboxe Qs&la. ,,•.':::•, ; aged aBot.i^t 46 'years,.,,;: :' ^ Ass-fc-fc. Si-igaaeer teftte: %fice^ •®f" ^he CKief. EagiBeer Etep.t-t.. - ag ,Wa:'fei;i: ssuree's, ^iteaear*^ —•. •1', .'•.',': m Sta'te of Gtihat'fclsgarKT:'''.;1'?:^1 ;'.: -:,' 'thEougti Speeial' Pe^a.ee ,g®'t:a;teM^m@||g l:(Lds.:^&yia]it)—P@li&e':Matibi3i^&h.opa3.^a|g /Qni.'t. •^'•^^'•'•^'•''-••• '•'"" •'-" •:-':"'-''' • • '•:'':'••''\:-::''' ^^'•^^^•IS i!c^%Vi';Baa.pB.z. : • • , ;.' ;'^:-..^.^;Hg ^•:-.^^ :':^''-.s^ffi r ^ss:; .-.f ''!ia"s?'^^Ya 1^;^ ^k ' • "wl? 1/0 HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 490 of 2002 APPELLANT RESPONDENT VERSUS Krishna Kumar Shukla. State of Chhattisgarh. -^' -^<\<^' . o^ .^' ^0'.^ .IA' J^' C71o^ Post for pronouncement ofjudgment on 3o-3-2010 Sd/- Pritiriker Diwaker 'auuSt •" m K II'i ; ^•^^ HIGHCOURTOFCHHAmSGiARHATBILASPUR (Hon. M^ Justice Pritinker Diwaker) Criminal Appeal No. 490 of 2002. APPELLANT RESPONDENT Krishna Kumar Shukla. VERSUS . . State of CBhattisgarh. ShriAnilKharewithShriSomMishracounselforappellant. Shri Pravin Das Dy. GAfo[;respondent/State. GRIMINAL APPEALUNDEI%SECTl£»N^74OFTHECODEOF CRllVilNAL.PROCEDl.JRE. JUDGMENT (%i'>.63.20%) This appeal is directed against the judgmentdated 19.4.2002 passed bySpecial Judge (Gonstityted under the provisions of Prevention of Corruption Act, 1988), Raipur, in Special CaseNo. 09/1996 convicting the iaccused/appettant for the offence punishable under Section 13(1)(e) read jwith 13(2)0fthe Prevention of Corruption Act (for short "theActof 1988") ^nd seratencing him to undergo rigorous imprisonment forthree years and pay fine of Rs. 5000, in default of payment offine to further undergosimple imprisonment for one year. 2. Case of the prosecution in brief is ithat at the relevant time the jppellant was working as Assistant Engineer in Water Resources Ejiepartment. On 4.2.1993 a raid was coriducted in the house of the abpellant and an inventorywas made. On enquirytheappellantwasfound tc( bein possession of theassets disproportionate to his known sources of irjcome. After investigation charge sheet was filed fbr the offence under 1 : : " ' " :. . •'."..: . • . • ' .. .:: :! : :. S^ction t3(1) (e)read with 13(2) of the Act of TO88. It is aHeged'tliat dui-ing th]e eheck^eriod i.e. from 1.1.1981 t6 5.2.1993 Ihetotalincomeoflthe a^peKant] comes to a tune of Rs.10, 30,12Q but his experiditure fbrlthe --=i.^^—^ tsy^.;':^i: ^ <? i* i: '^ ^ ,.--•?'• -2-- aforesaid check period comes to a tune of Rs. 18, 54,293. Thus, according to the case of the prosecution the appellant was found to be in possession of the assets disproportionate to his known source of income to a tune of Rs. 8, 24,173. Thereafter, on 18.8.1999 the trial Court framed the charge against the accused/appellant under Section 13(1) (e) read with 13(2) of theActof1988. 3. In support of its case the prosecution has examined as many as 17 • 'itnesses. Statement of the gccused/appellant was also recorded under Section 313 of the Code of Criminal'Procedure in which he denied the charge levelled against him and pleaded false implication in the case. This apart, two witnesses namely Smt. Usha Shukla (DW-1) and Krishna Kumar Shukla (DW-2) were also examined by the defence in support of its case. 4. In support of its case, the prosecution has exhibited its documents from Ex. P-1 to Ex. P-308 whereas the documents exhibited by the defence are from Ex. D-1 to Ex. D-24. It appears from the record that most of the documents have been admitted by the appellant on different dates under the provisions of section 294 of the Code of Criminal Procedure. Details of the admitted documents are as under: Date 23.2.2000 26.2.2000 10.5.2000 12.5.2000 9.9.2000 11.9.2000 16.2.2001 7.3.2001 8.3.2001 9.4.2001 10,4.2001 Admitted documents Ex. P.1 to Ex. P.64 Ex.P.65 Ex.P.70 to Ex.P.72 Ex.P.73 to Ex.P.79 Ex.P.102toEx.P.108 Ex.P.109toEx.P.118and Ex.P.121 to Ex.P.232 Ex.P.237 Ex.P.238 to Ex.P.286 Ex.P.288 to Ex.P.298 Ex.P.299 Ex.P.302 to Ex.P.304 --Z ^ 5. While convicting the appellant by the impugned judgment learned Court below has come to the conclusion that during the check period income of the appellant waS to the tune of Rs. 11,55,826 but the total expenditure for the aforesaid period comes to Rs. 17,28,587 and thus a categorical finding has been recorded by the Court below that the appellant was found in possession of the assets disproportionate to his known source of income to the tune of Rs. 5,72,761 and for this amount he _ 3S failed to give satisfactory explanation and prove his case. \. 6. Shri Anil Khare counsel for the appellant submits that the trial Court has not calculated the income as well as expenditure of the appellant correctly. He submits that under various heads the appellant has proved his income but in an illegal manner the same h^ been completely ignored by the trial Court and likewise erroneous finding has been by it regarding the expenditure of the appellant. According to Shri Khare, counsel for the appellant the income of the appellant under following seven heads has not been assessed properly: (i) Salary of the appellant during the check period. (ii) Rental income. (iii) Loans received from the relatives. (iv) Income ofwife as declared in Income Tax Return. (v) Amount received through bank after maturity of certain deposits under various deposit schemes. (vi) Income through sale of vehicles. (vii) Income throi<gh sale of old fridge which was received by him as gift in his marriage. 7. In respectof first point i.e. salary of the appellant during the check period, counsel for the appellant submits that the total income from the salary of the appellant during the check period has been taken by the prosecution and also the Court below to the tune of Rs. 3,25,382 which :fepss-s^,, .^•^ s^r^-" ~1/— according to him is not correct as the prosecution and the Court below have completely overlooked the fact that salary of Rs. 4,310 for the month of January was received by the appellant on 3.2.1993 and as the check period wastill 5.2.1993, this amount ought to have been included in the salary head of the appellant. It has been argued that Investigating Officer namely Gandhi Ram Banjare (PW-16) has admitted this fact that monthly salary is received in the next month and likewise the defence witness Krishna Kumar Shukla (DW-2) in his deposition has stated that salary for the month of January 1993 was received on 3.2.1993 i.e. prior to the date on which raid was conducted. It is argued that ifthis amount of Rs. 4,310 is included, salary income of the appellant during the check period comes to Rs. 3,29,692 and not 3,25,382. :t¥ ' 8. In respect of second point i.e. rental income, counsel for the appellant submits that the rental income of the appellant has not been assessed properly. It is argued that neither the prosecution nor the Court below has calculated the said income correctly. According to him, both prosecution and the defence have taken the total rental income of the appellant as Rs. 2,87,039 whereas the actual rental income during the period from 1.7.1986 till the date of raid comes to Rs. 3,25,239. He submits that some of the receipts of rent received by the appellant and his wife during the period from 1.7.1986 to 31.1.1993 were missing and therefore the appellant has submitted a letter mentioning the details of the same before the Investigating Officer and the said letter has been marked as Ex. D-7. He submitsthat as per the said letter monthly rental income of the appellant regarding which the receipts were not available with him is to the tune of Rs. 32,000 and similarly the rent of Rs. 6,200 for the month of January 1993 was received by the appellant prior the date of raid in the month of February, 1993. Thus according to the counsel for the appellant SiSK.":;. g ^- E. — <^— this amount of Rs. 38,200 is also required to be added in the rental income of the appellant. He submits that the explanation regarding receipts of the rent was also furnished by the appellant in his income tax returns. He submits that the explanation regarding receipt of rental income was also t furnished to the Investigating Officer during the course of investigation but the Investigating Officer did not conduct any enquiry regarding the aforesaid fact nor has he examined any tenant of the appellant or the wife of the appellant. He submits that some of the receipts for the mid period were missing. However, the appfillant has given reasonable explanation regarding the same to the Investigating Officer and also to the learned trial Court. He submits that though the Investigating Officer was having complete information regarding the missing receiptsfte did not make any effort to investigate the matter in respect of the same. Thus according to Shri Khare the amount of Rs: 38,200 is required to be added in the rental income of the appellant. 9. In respect of third point i.e. the loan amount received by the appellant from his several relatives has also not been calculated properly. According to Shri Khare the finding of the trial Court recorded in paragraph 28 of its judgment is highly perverse and inappropriate. He submits that in respect of loan having been taken by the appellant from his relatives, the trial Court has simply stated that as the Investigating Officer has deposed in his evidence that the appellant was in possession of huge amount, there was no need for him to take loan from the relatives and based on this statement ofthe Investigating officer, the trial Court has given a finding that the appellant was not required to take loan and thus struck down his defence holding that the appellant has not proved his income under this head. He submits that the appellant and his wife had taken loan of Rs. 2,84,164 from their relatives for construction of the house on different ^ '( ••:,.-,'': ^ -&-- dates and during the check period an amount of Rs. 1,10,000 only was refunded by them. He submits that up to the period of raid i.e. 4.2.1993 Rs. 1,74,164 was still outstanding and therefore this amount should be included in the income part of the appellant. He has drawn the attention of this Court to the document Ex. D-20 which is letter dated 24.2.1987 given to the department while taking permission for construction of the house informing about the loan taken by him from his relatives. He submits that through this letter it has been intimated to the department that he had received Rs. 82,000 from Mr. N.P. Dubey, Rs. 25,000 from Shri S.P. Mishra, Rs. 25,000 from Shri S.P. Dixit, Rs. 21,000 from Shanti Shukla, Rs. 15,000 from Nirmal Shukla, Rs. 24,000 from the G.P.F and Rs. 12,500 from the saving of his wife. He submits that apart fromlhe aforesaid loan amount, the appellant and his wife had also received loans from their relatives regarding which they have given a declaration before the Income Tax Authorities and the documents in that regard such as income tax returns have been duly exhibited vide Ex. D-19 and D-21 which contain the details of the loan amount. He argued that at the time of trial all plausible explanation regarding loan amount was given but the trial Court did not even discuss anything in respect .of the same while passing the impugned judgment. He also submits that during the course of investigation also the appellant had given an information regarding receipt of loan to the Investigating Officer vide letter dated 4.3.1996 (Ex. D-8) and along with this document he had also submitted a descriptive chart mentioning all the details of loan and its repaymentAccording to Shri Khare, though the Investigating Officer was having complete information regarding the loan amount but he did not enqulre into the same and most erroneously the trial Court has rejected the defence of the appellant on flimsy ground. He submits that sirice the appellant had intimated to his department as well as to the Income Tax authorities regarding the receipt of loan amount from his ^ „-^_ relatives, the same being a known source of income of the appellant is required to be taken into account. He also submits that in respect of the loan amount and its details, the appellant has also proved his case vide documents Ex. P-28 and Ex. P-238 (a), Ex. 240 to 243 and Ex. D-1 to Ex D-6 and Ex. D-20. 10. In respect of the businesS income of the wife of the appellant which according to the appellant-has been declared in the income tax return but ha's not been taken into consideration by the authorities or by the trial Court, it has been argued by the counsel for the appellant that wife of the appellant was the income tax assessee since 1977 - 78 to 1995-96. He submits that for this period wife of the appellant has submitted her income tax return before the Income Tax authorities but the learned trial Court has rejected his contention only on the ground that the appellant had not intimated to his department about the business of his wife. The trial Court has further held that wife of the appellant has not submitted the income tax return regularly before the Income Tax authorities. It has been argued by the counsel for the appellant that though the wife of the appellant did not submit her return on regular basis but almost all the returns were submitted by her prior to the date of raid and therefore it cannot be said that those returns were filed in anticipation of registration of the criminal case. It has been argued that on. the one hand the trial Couri: has taken the expenditure towards payment of income tax but the income as declared in the income tax returns has not been taken into account. He submits that the Income Tax authorities had also given a notice under Section 148-A of the Income Tax Act to the wife of the appellant and after assessment found the declaration given by her to be genuine. He also submits that copy of the said notice has been duly exhibited vide Ex. D-23 and the assessment orders are enclosed with the bunch of Ex. D-19. He submits that the total 'S*S';;'^^i^Ei^'^ ^ '<Qy~'y i "'b,. 8- incomeofthe wife ofthe appellant as declared in the income tax returns to the tune of Rs. 2,87,000 as the income from known sources and therefore the same is required to be added in the income part ofthe appellant as the expenditure incurred by his wife has been taken on the head of the appellant. He submits that though the aforesaid information and the income tax returns were categorically proved by the appellant in his defence during the course of trial but the trial Court did not discuss even a single word about the same. He placed reliance on the decision of the Supreme Court in the matter of State of M.P. v. IVIohanlal Soni reported in 2000 (6) SCC 338 and submits that income of the wife of the appellant as declared in Income Tax returns is required to be taken into consideration. 11. In respect of the 5 point i.e. the amount received through bank after maturity of certain depqsits under various deposit schemes, it has been argued by Shri Khare, counsel for the appellant that the amount received through bank after maturity of some of the schemes has not been assessed properly. He submits that maturity of the some of the bank deposits under different schemes has been completely ignored by the Investigating Officer though during the course of his deposition the Investigating Officer has admitted the same. According to Shri Khare, while dealing with this issue in sub paragraph 3 of paragraph 28 of the judgment impugned, the trial Court has completely overlooked this important issue. He submits that the prosecution has taken only Rs. 1,41,801.56 into account whereas the actual income from maturity of deposits comes to Rs. 3,64,455.68 which according to him is clear from the document Ex. P-272, Ex. D-18, Ex. D-17 and Ex. D-22 and also from the deposition of Nirmal Kumar Banerjee (PW-8), S.K. Yadav (PW-9), Gandhi Ram Banjare (PW- '?- '^..iiis^^^ 16) and Krishna Kumar Shukla (DW-2). Counsel for the appellant has also placed reliance on the following chart: Sr.N o. Date o1 purcha se Face Value Description Date ol Maturity Mature d amoun t Taken SPE Ignore d by SPE 1. 19.1.78 5000 SBI, Durg STDR 49080 1.2.88 13,535 13,535 /- !-2. 10.11.8 o 4000 SBI, BhDai STDR 831968 10.11.86 7236/- 7236/- 3. 10.11.8 o 4000 SBI, Bhilai STDR 831969 10.11.87 7986/- 79861- 4. 10.11.8 o 4000 SBI.Bhilai STDR 831970 11.11.88 8816/- 8816/- 5. 08.08.8 1 5000 Canara KDR 175/81 8.8.84 6725/- 67251- 6. 08.08.8 1 5000 Canara KDR 176/81 8.8.84 6725/- 6725/- 7. 13.08.8 1 2500 Canara KDR 155/81 13.8.84 3450/- 3450/- 8. 01.09.8 3 1200 o Canara KDR 235/83 1.9.88 206461 206461 9. 18.01.8 4 5000 B.0.1. Durg DBD 9/13(No.903 ) 10.6.88 6725/- 6725/- 10. 14.08.8 4 5000 Dena Bank Durg FDR 933674 & 1536245 13.1.93 2016/- 2016/- 11. 25.8.84 5000 Canara KDR 25.8.87 6725/- 6725/- ^- ?/ OOCOfr l/OOSOt' ZS'Q'Z eqpjeMe» u.104 SOSN o oooz o Q'SO'90 •oz o S-Z099 o S-Z098 06'6'SZ (S09 •ON)LOOZ/OI. aaa 'Bjna ioa ooos 9 9'60'SZ •61. -/Z099 -/Z099 06'6'fr ^szzs aais B4pJBMB» las ooos 9 8'60'TO "91. s Z-1.1S9 s Z'l.l£9 Z9'£'8Z (99066£'ON) 98/z^ aa» Bjeueo ZI.W s 8'60'ZZ 'S S 8'90'SO •Zt -/ L089Z /Z089Z 06'Z't set'zzQ aais eqpjGMex las o OOSl 9 8'ZO'I.O •91. /96S6t' /86S617 99'Z'ZI. pUB 99'S'IZ (syajesaqi uo (usiuAed 8jn}BLU9jd ua>|ei) syOd 9Nd o 0001 o ooos o 0001. s 8'ZO'SZ'sl g.so'oz's 8'W8Q •SL -/ osi^ei- /osi^ei. ZQ'ZI-'frt (99/Z) ^LWW aa>i /- BJBUB3 o 0001. s S'l-O'l-O •t?l. -/OZ08 -/OZ09 99'ri. (98/e) szt's^g • aa» BJBUBQ 0009 9 S'l.0'1-0 'ei- -/9ZZ9 -/SZZ9 Z9'8'9Z (fr9/89Z) 99Z£^9 aax ejeueQ ooos ^ 8'90'SZ •Zl (fr9/Z9Z) Z9ZSTO imnBn if.l..^?! 'i lb:ii? ^.. •II- Thus according to Shri Khare the maturity amount ofRs. 2,22,654.12 has been ignored bythe Investigating Officer though the same was admitted by him in his evidenee and therefore, same being the income from known ^.D 21. 10.11.8 6 7200 SBI, Bhilai STDR 193480 8.7.88 8602.5 6 8602. 56 22 01.02.8 8. 1350 o SBI Durg STDR 472573 20.7.88 14045/ 14045/ 23. 25.10.8 9 500 Dena Bank Durg - FDR 1536276 31.1.93 550/- 550/- 24 10,11,8 7 7900 SBI, Bhilai STDR. 'l 144662 . 14.11.88 8635.4 9 8635.4 9 25. 08.08.8 4 5000 Canara KDR 261/84 29.9.85 5412.5 o 5412.5 o 26. 08.08.8 4 5000 Canara KDR 262/84 8.8.87 67251- 67251- 27 18.01.8 8 7314. 78 BOI Durg FDR 13/6 9.10.88 7473.1 3 7473.1 3 28. 04.09.9 o 8602 SBI Kawardha (renewal of ltemNo.18) 7.9.92 10000/ 10000/ 29/. 07.08.7 6 100 per mont h Canara Bank RD No.39 1.9.83 3682/- 3682/- 30. 14.09.7 9 1000 o Canara KDR 103/79 1.1.85 16045. 75 16045. 75 31. 29.09.8 3 1200 PER MON TH Canara Bank RD No.155 24.10.91 25236/ 25236/ Total • 36445 5.68 14180 1.56 22265 k12 &fr' i^.^/ —12.- sources of the appellant is required to be assessed as his income. He submits that although the Investigating Officer has admitted his fault, even then the learned trial Court did not take the aforesaid amount as income part of the appellant. 12. In respect of 6 point i.e. income through sale of vehicles, counsel for the appellant submits thaf the appellant had sold his motorcycle and therefore the sale proceed of the same is required to be added in the ihcome part of the appellant but uttfortunately the same has been ignored by the prosecution as well as the trial Court. It is argued that learned trial Court has not even digcussed the said defence of the appellant in the impugned judgment though all plausible defence had been pr%duced by the appellant during trial. It has been submitted that the appellant had intimated to the department regarding sale of the motorcycle and receipt of amount of Rs. 16,800 towards sale consideration which is clear from Ex. D-10 and Ex. D-11. Counsel for the appellant submitted that the said information was also furnished to the Investigating Officer but the same was completely ignored by him and the reason given by the Investigating officer in his evidence for not accepting the said amount as income of the appellant is that the vehicle was in the name of the appellant. Counsel for the appellant submits that though there is no document on record to establish that on the date of raid the vehicle was in the name of the appellant yet the Investigating officer has not taken the said amount as income of the appellant. He submits that on the contrary the appellant had duly intimated to the department much prior to the date of incident in respect ofthe sale of motorcycle and therefore amount of Rs. 16,800 being the income from his known source, is required to be added in the income partofthe appellant. ^ "'•^i^ ^.:^ -^!'i'' ^IZ- 13. As regards 7 point i.e. the income through sale of old fridge received by the appellant as gift in his marriage, counsel for the appellant submits that the appellant had purchased a fridge in the year 1973 i.e. much prior to the check period and also prior to his joining the service in the Water Resources Department. The said fridge was subsequently sold to one Chandrika Prasad for an amount of Rs. 4,500 onlS.08.1986 and mentioning the aforesaid fact the appellant has also sought the permission tci purchase the new fridge from his department on 23.8.1986. He submits that the said letter and receipt are contained at Page No. 59 and 60 ofthe explanation submitted by the appellant to the prosecution agency and the same is the part of the record of the case. Thus it has been submitted that the aforesaid income of the appellant being from the known source of his income, is required to be added in his income part, which has not been discussed by the trial Court while passing the judgment impugned. Thus according to the counsel for the appellant it is clear that income of the appellant under various heads has not been correctly calculated either by the prosecution or by the Court below. Details of the income of the appellant which has not been taken into account are given below: (A) Income as taken by the SPE Rs.10,30,120/- (B) Income as taken by court Rs. 11,55,826/- (C) Income which has not been taken into account:- Salarydifference , - Rs.4,310/- | Rentallncome - Rs.38,200/- : Outstanding loan amount Income of wife Rs.1,74,164/- Rs.2,87,000/- ia .-)t<- Maturity of deposits Interest of S.B.Accounts Sale of motorcycle Sale of Fridge (D) Actua! income ofappellant Rs.2,22,654=12 Rs.4,861/- Rs.16,800/- Rs.45,00/- (10,30,120/+3501+4310+38200+1,74,164+287000+222654.1 2+4861+ 16800+4500)= .Rs.1786110.12 14. Counsel for the appellant submits that the trial Court has also not considered the defence of the appellant in respect of the expenditure. He drew the attention of this Court towards Ex.D-17 showing the heads of expenditure which reads as under: S.No. Description with dates Amount (Rs.) 1. 60 % household 1.1.73 to 31.12.80 30911/- 2. Fridge 1973 5000/- 3. FDR 1.9.78 5000/- 4. STDR10.11.SO 4000/- 5. 60% household 1.1.81 to 31.1.93 1,95.229/- 6. Plot purchase 3.7.81 15,6207- 7. Plot purchase 3.7.81 15,620/- 8. RDR 8.8.81 5000/- 9. KDR 8.8.81 5000/- 10. KDR 13.8.81 2500/- 11. REVOLVER 7.9.81 7442/- r- u »! 8 " "^;& B -. y' ..1' *e. ^....^sd.' u •~~1 v>\ 01 u 01 Sl u>\ 01 u N1 u v\ 01 N <o M oo N -J M 01 M| 011 Kl M| col f0 M Ml Mo CD oo 01 01 w\ M M| c| II om 0| ~n ilv\ >1 ;0|d -i| 001 o] 0| oo 1 oo 1 oo 1 ~~1 o0|2| m -1 M oo v\ 00 ~^ Il 0| c| cn 1 m| 011 oo a> I Qlc Mm -^k 01 03-1 011 "nl 0|