IN THE HIGH COURT OF JUDICATURE OF CHI-IATTISGARH( AT a Bxmspua, § gw% 6Lm erminal’kpgseal N .af 2002. APPELLANT mCUSED DURGA PRASAD SHARMA, son of Ganga Prasad Sharma, aged 47 years, Assistant Engineer, Water Resources Department, (Mahanadi), Raipur . VERSUS STATE OF cm—IATTISGARH. Through Police of P.S.sPecial Police Establishment. Lckayukta, BHOPAL-Unit Ra i‘pur (CH.G .) . AFFEAL UNDER SECTION 374 OF TEL“ C0333 OF£RIMINAL PROCEDUREgg 7‘x-FA. HIGH COURT OF CHHATTISGARH AT BILASPUR Hon’ble Mr. Justice Pritinker Diwaker Criminal Aggeal No. 548/2002 APPELLANT ‘Durga Prasad Sharma Versus RespormjENT State of Chhattisgarh ‘ v Shri Anil Khare, counsel for the appellant. u f Shri Akhil Mishra, Dy. G.A. for the respondent/State. § CRIMINAL APPEAL UNDER SECTION 374 (2) OI: THE CODE OF A ‘ CRIMINAL PROCEDURE JUDGMENT (n.1o.2o11) By this appeal the appellant has called in question the legality, . Qalidityi propriety and correctness of the judgment and order dated 30.04.2002 passed by Special Judge (PC Act), Raipur, in Special Case No. 10/2000 convicting him under Section 13 (i) (e) read with 13 (2) of the Prevention of Corruption Act, 1988 (for short the ‘Act of 1988’) and) sentencing him to undergo rigorous imprisonment for three years and pay 0ne of Rs. 5,000, in default of payment of fine to further undergo simple imprisonment for six months. 2. The facts of the case in nut shell are that at the relevant time the accused/appeiiant was working as Assistant Engineer in Water Resources Department and posted in the office of Chief Engineer, Mahanadi Pariyojna, Raipur. On 02.11.1995 upon receiving a secret information the Special Police Establishment, Office of Lokayukt, Branch Raipur conduétedi a raid in the residential premises of the appellant and during the course of the said raid, the officials of the Sp%cial Police Establishment prepared an inventory of the articles found in the residential premises of the appellant and certain documents pertaining to moveable and immoveable properties were also seized. V _2__ 3. After completion of investigation and obtaining necessary sanction required under the Act, a charge-sheet was filed before the competent Court calculating the income and expenditure of the appellant taking the check period from 01.01.1981 to 02.11.1995. According to the case ofrthe prosecution the total income of the \V appellant was assessed during the check period to a tune of Rs. 6,60,577 land the expenditure as assessed by the prosecution was to a tune of Rs 17,78,337. ln view of the income and expenditure, the Special :Police Establishment has assessed the amount disproportionate to the known source of income of the appellant to the tune of Rs."1‘1,14,847. After filing of the charge sheet, learned Special Judge framed charges‘against the appellant for the offence punishable u/s .13 (i) (e)sread with” 13 (2) of the Act of 1988 vide order dated 02.1 1.2000. 4. So as to hold the accused/appellant guilty, prosecution has examined 19 witnesses in support of its case. Statement of the accused lappellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. This apart, one M. S. Ghosh has also been examined by the defence in support of its case. 5. ln support of its case the prosecution has exhibited and proved as many as 164 documents which have been marked as Exs. P-1 to P- 164 whereas the appellant in his defence has proved 11 documents which have been marked as Exs. D-1 to D-11. Apart from this, the appellant has also produced four bound registers containing the details pertaining to income tax return of the appellant himself, his wife and parents. From the record it‘appe‘ars that most of the documents have been admitted by the appellant on different dates under the provision of Section 294 of the Code of Criminal Procedure. The details of the documents so admitted by the appellant are as under: Date 22.3.2001 23.03.2001 Documents P-3 to Ex. P-36 EX. P-37 to EX. P—65 t t 1 6. While convicting the appellant \1lde judgment impugned learned l'b Court below has come to the conclusion that during the check period income of‘*the appellant was to the tune of Rs. 6,63,490 whereas the QH§%%% ‘total expenditure for the aforesaid period comes to Rs. 11,61,240 and thus, acCording to the Court below the appellant was found in possession of the assets disproportionate to his known source of income to the tune of Rs. 4,97,750 and for this amount he has failed to prove his case. 7. Counsel for the appellant submits that the trial Court has not correctly calculated the income as well as the expenditure of the appellant. He submits that under various heads the appellant has proved his income but in an illegal manner the same has been completely ignored by the Court below and likewise an erroneous finding has been given in recording the expenditure of the appellant. 3% He submits that income of the appellant under the following heads has not been assessed properly. Salary prior to check period 7,282 Salary during the check period 4,22,285 10.404 Interest from Bank 1 .155 852 STDR of SB! 13,800 Withdrawal from GPF 1,20,000 73,014 1,726 10. Interest from Bank 2,041 STDR of Central Bank of lndia Agriculture income Interest from Bank 1 2 3 4. 5. Interest from Bank 6 7 8 9 26.03.2001 28.03.2001 29.03.2001 08.06.2001 02.08.2001 07.09.2001 04.10.2001 Ex. P-66 EX. P—68 Ex. P-71 & P—72 EX. P-85 to EX. P-89 EX. P-105 to EX. P—108 EX. P-115 to EX. P-118 Ex. P-121 0 G3 8. As regards Income from salary pnor to check period as well as dunng the check period counsel for the appellant submits that the total Income from the salary pnor to and dunng the check period according to the case of the prosecution was Rs 7 282 + 4 22 285 4 29 567 He ‘submlts that In the aforesaid figure, an amount of Rs. 13,474.60 Is required to bé added fo‘r the reason that at S.No.2 of the income chart, an amount of Rs. 4,22,285 has been shown as income from salary during the check period. According to him, the aforesaid figure is arithmeticaliy incorrect and is a calculation mistake and the same comes to Rs. 423,538.30. Counsel for the appellant drew the attention of this Courtto the exhibited documents Ex. P-91 to P—98, Ex. P-106 to P—108 and Ex. P-1 10 to Ex. P-1 14 and as such income from salary,prior to and during the check period comes to Rs. 7,282 +, Rs. 4,23,538 = 4,30,820.30. It is. pointed out that apart from this, other additions which are required to be made in the income from salary are based on the deposition of PW—1O who in paragraph 02 has stated that on the basis of documents marked as Ex. D—2 and Ex. D-3, an amount of Rs. 4,727 has been calculated less in the salary details which have been marked as Ex. P-91 to Ex. P-98. Similarly, PW—13 in paragraph No.2 of his deposition has admitted the fact that amount of Rs. 7,494.30 has been calculated less in the salary details marked as Ex. P-110 to Ex. P-114. Attention of this Court has been drawn to the statement of PW—13 which i is an exhibited document marked as Ex. D—4 and Ex. D-5 and it has been siiibmitted that amount of Rs. 4,727 and Rs. 7,494.30 is required to be added to the tune of Rs. 430,820.30 and in view of the aforesaid i facts, the total inCome of the appellant prior to and during the check period comes to Rs. 4,43,041.60 and thus an amount of Rs. 13,474.60 has been calculated less in the income chart Ex. P-156. ‘ ‘ 11. Interest from Bank 8,213 12. Interest from Bank 739 13. Interest from Bank 97 14. Interest from Bank 4,825 15. Interest from Bank 1,426 Total 6,60,577 9. Counsel for the appellant submits that there are certain incomes which :ihave not been taken into consideration either by the Special runden Police Establishment or by the Court below, which are detailed as (i) income from money back LIC policies. (ii) lncome from sale of agriculture land. (iii) lncome of the wife of the appellant. ln respect of income shown in clause (i) i.e. income from money back LIC policies, counsel ~for the appellant submits thez'appellant and his :family members haye received the amount from money back LIC policies to the tune of Rs. 70,000 during the check period. Attention of this Court has been inv‘ited to the fact that the prosecution has taken three policies under the head of expenditure, meaning thereby that the policies Were in existence. lt is pointed out by the counsel for the appellant that amount of premium taken under the head of expenditure is on the higher side and as far as amount of Rs. 70,000 received by the appellant, his wife and daughter is concerned, the same has been explained by the appellant in his evidence and on the basis of documents available on record. Counsel for the appellant submits that J“: \K on being put a question by the Court below, PW-2 has stated in _ paragraph No.6 of his deposition that the appellant received a total l 1‘ A namely Bhawna Sharma received Rs. 10,000 on 21.11 .1994. According ‘l‘ - to the counsel for the appellant, all the aforesaid amounts have been received under the money back policies and from the deposition of PW- ; 2 it is clear that the appellant against money back policy received an amountwf Rs. 40,000 in two installments. Money received by him in the year 2000 has been excluded from the arena of income as the same thas been received after the end of the check period. The wife of iappellant received Rs. 20,000 while his daughter received Rs. 10,000 and under these circumstances income of Rs. 70,000 is required to be added under the head Which has not been taken into consideration ‘ amount of Rs. 60,000 in three installments paid in the year 1990, 1995 and 2000 whereas his wife had received total amount of Rs. 40,000 in two installments paid on 13.3.1995 and 8.3.2000 while his daughter % T?] ._g._ either by the prosecution or by the Court below Learned counsel‘ appearing for the appellant submits that the Court below has not discussed the Issue m respect of Income generated by the appellant ,hls Wife and daughter by way of amount received under the money back pelletes 10. ln respect of Income shown In clause (n) I e Income from sale of agriculture land counsel for the appellant submits that the appellant has generated an Income of Rs 94 000 as prowded during the check penod from sale of agrrculture land He submits that hls Wife had recelved ‘an amount of Rs 1 15 000 from the sale of agriculture land iregardmg which a sale deed was executed on 12 11 1991 He drew the attention of this Courtto the order sheet dated 15.4.2001 to show that the prosecution has admitted the document Ex. D-11 which is the judgment passed by the Income Tax Appellate Tribunal Nagpur Bench dated 5 2 1999 He submits that from perusal of paragraphs 49 to 51 of the said Judgment It Is clear that Wife of the appellant had received a proft of Rs. 94,000 from the sale of agriculture land through sale deed dated 12.11.1991. Counsel for the appellant submits that though the aforesaid sale deed has not been exhibited in the present case, same t has been placed before the learned trial Court along with the register pertaining to Smt. Shashilata Sharma which tinds place at page Nos. 213 to 216. He submits that the said sale deed has been registered in the-office of Sub Registrar, Durg which being a public document can be looked into and relied upon though not exhibited He submits that smce L7 the prosecution has admitted the Judgment of the lncome Tax Appellate Tribunal and the prosecution did not raise any objection In regard to the contention mentioned In the judgment, the profit received by the Wife of the appellant through sale-of agriculture land i.e. Rs. 94,000 is required to be added in the income part of the appellant. lt has been pointed out that this amount of Rs. 94,000 through aforesaid sale of the land has also been disclosed by the assessee i.e. wife of the appellant in her income tax return for the assessment year 1992—93 which has been submitted by her in the month of September 1993 much prior to the date of raid He submits that the aforesaid documents Ie Income tax return and the sale deed executed on 12 11 1991 and duly registered In l l: _7_ the office of Sub Registrar, Durg Were much prior to the date of raid and therefore, it cannot be said that the same have, been got prepared in anticipation of raid. He submits that in view of the aforesaid facts the amount of Rs. 94,000 is the income of the wife of the appellant from the known sources of income and is required to be'added in income part. He submit that profit of Rs. 94,000 has been shown in the income tax return ais Well as judgment of the income Tax Appellate Tribunal though the sale deed has been executed for an amount of Rs. 1,15,000 because Rs. 21,000 was spent towards purchase of the aforesaid agriculture land. ‘11. Counsel for the appellant further submits that income from sale of agriculture land pertains to the income of the wife of the appellant as her expenditures under‘certain heads have been taken into account by the prosecution such as premium towards the insurance and other items arid therefore, the aforesaid income as profit from the sale of agriculture land to the tune of Rs. 94,000 is required to be taken as an income of the appellant during the check period. He submits that Ex. D— 11 is an important piece of evidence which has been admitted under Section 294 of the Code of Criminal Procedure and this document is part of the order passed by Income Tax Appellate Tribunal, Nagpur. He further submits that the aforesaid order has been passed in appeal which was preferred by the appellant/assessee against theorder passed by the Assessing Ofhcer whereby certain proceedings were taken up pursuant to the search which was conducted by the officials of the Special Police Establishment. lt is clear from the aforesaid order that four bound registers were produced before the lncome Tax Appellate Tribunal and the same were taken into consideration while‘ passing the appellate order by the Income Tax Appellate Tribunal. He s submits that though the registers were not exhibited before the trial Court,csame were part before the Income Tax Appellate Tribunal and also produced before the Income Tax Appellate Tribdnal as wellas before the Special Police Establishment as has been established in the evidence of DW—1 namely MS. Ghosh who has stated that the aforesaid documents were produced during the course of investigation. Copy of the said registers has been marked as Ex. D-9. " @ wg__ 12. Learned counsel for the appellant thus substantiated his' argument on the point that the income of the appellant is required to be escalated in the following manner: Rs. 13,474.60, Rs. 70,000 and Rs. 94,000. By adding the aforesaid amount, the income of the appellant is required to be enhanced by Rs. 1.77,474.60. ‘ lt is argued by the counsel for the appellant that the trial Court has not“ considered the defence of the appellant in respect of expenditure. He drew the attention of this Court towards document of Ex. P4156 (Parishishth-H), according to which expenditure chart comes as under: a 60% expenditure (prior to check period) 4,369/- 60% expenditure (during check period) 2,53,371l- Premium of LIC policy 73,26OI- NSC 1,000/- STDR 1 0,000/- UTI 2,100/- KVP 5,000/- Premium of‘LIC policy 45,101!- Premium of LIC policy 23,547I- UTI 2,100/— UTI 2,1 00/— Purchase of agriculture land 44,615l— Peerless General Finance (Policy) 4,800/— lron and Steel Co. Share 1,470/- Donation to temple ‘ 10,401l- Share (Reliance) 400/- Shares of Zenith Company 6,750/- Shares (Ass. Cement Co.) 500/- Peerless Policy 5000/- STDR 10,000/— Shares (Gujrat Ltd.) 250/- @ the triéi Court has only excluded the expenditure of flat shown at S.No. 25 of the same which according to the Special Police Establishment was assessed to the tune of Rs. 1,76,000.00. The trial Court has also excluded an amount of Rs. 4,41,097.00 towards the expenditure incurred on the gold ornaments shown at S.No. 42 of the said .,_3 _ 22. Cheque given to Shiva Builder for purchase of 20,000!- flat 23. Shares 3,735/- H24. FDR 13,8OOI- 25. Flat (oniy on the b‘asis of permission) 1,76,000l- 26. FDR 3000/- 27. Car Accessories 13,400l- 28. FDR . 4,209/- g. 29. i Agriculture income 34,168l- \‘r 30. Balance in Bank A/c 'k f 13,389/— 31. 32. Balance in Bank A/c Balance in Bank A/c 1,050/- 20,045l- 33. l Balance in Ba‘nk A/c 3,719/- 34. lBalance in Bank A/c 1,148/— 35. Balance in Bank A/c 25,896l- 36. Balance in Bank A/c 22,126l- 37. Balance in Bank A/c 1,21 1/- 38. Rent of locker 250/- 39. Rent of locker 1,055/- 40. Rent of locker 670/- 41. Boundary wall of agriculture land 31,3OOI- _ 42. Gold ornaments 4.64.800/— l _ 43- Silver ornaments 20,106l- wee“??? l 44. Rent of locker 6,630/— 45. Vehicles 1,68,915I- 46. Inventory 2,07,150l- l 47. Cash 18.800I— Total 17,78,937]- § l V ‘ ‘13. Counsel for the appellant submits that from the aforesaid chart, @ ~io- K expenditure chart: Thus according to the counse! fer the appellant if the entire entries of the expenditure chart are added, they come to Rs. 17,78,987. it is submitted that the triai Court finally assessed the expenditure of the appellant to the tune of"Rs. 11,61,240. He submits that the Court beiow has'taken certain expenditures in excess which are as under: (i) ‘ 60% expenditure ‘prior to check period and during check , period. (ii) tExpenditure incurred in the gold ornaments and silver ‘ ornaments. ‘ a f (iii) (iv) ‘ Expenditure incurred in car accessories. . (v) Rent of locker belonging to the mother. (vi) Expenditure incurred in the purchase of vehicle. (vii) ‘ Inclusion of house—hold articles forming part of inventory. 14. Ask regards first point regarding assessment of expenditure, counsel fcr the appellant submits that the trial Court has erroneously accepted the version of the prosecution'in respect of 60% expenditure towards house-hold. He submits that the expenditure of the appellant towards household has been assessed more by the prosecution because there is no method to take 60% of the salary as expenditure V towards house-hold with the prosecuting agency. He submits that standard of living of the appellant and his family members was very simple and in any condition 60% of the salary was not spent towards house—hold. He submits that though the appellant is not having exact figure for expenditure, looking to his standard of living, articles found in the house etc. it can be said that at the most only 50% amount of total salary i.e. prior to the check period and also during the check period has been spent by the appellant, as no evidence in this regard has been adduced by the prosecution. Counsel for the appellant submits that the prosecution has not proved the basis of 60% expenditure towards the house-hold items. Apart from this, according to the counsel for the appellant, the prosecution has also not alleged anything in respect of the living standard of the appellant and that being so the expenditure of the appellant towards house hold prior to and during the Premium towards LIC policies. iestw t >Myr l L " én >3 e«:59 @ check period Is required to be deducted by Rs 36 220 approxmately He further submits that though no challenge In respect of the aforesaid has been made by the appellant dunng the course of tnal looking to the -—H.. surrounding crrcumstances as discussed above this defence can be consrdered and an amount of Rs 36 220 can be deducted from the expenditure of 60% from household pnor to and dunng the check penod He further submits that the aforesald part of the defence has not been taken Into conSIderatlon by the tnal Court whlle passing the Judgment impugned ln support of hrs argument he placed reliance on the Judgment of this Court In the matter of Krishna Kumar Shukla v State of Chhatttsgarh passed In Criminal Appeal No 490/2002 on 30 3 2010 and submits that the household expenditure Is required to be deducted as 50% bf the total Income from salary and not 60% taken by the prosecution 15. As regards second pomt regarding expenditure Incurred In gold and Silver ornaments It has been submitted by the counsel for the appellant that entire expenditure on this head Is required to be deleted from the expenditure chart as the same falls within the purview of Stridhan. He further submits that the Court below in paragraph 24.1 of the impugned judgment has discussed the expenditure part of the‘ appellant wherein it has been held that the total jewelries found in the house of the appellant are valued to a tune of Rs. 4,64,800 only. Further discussing the said issue the Court below has held that out of the value of total jewelries, the jewelries valuing to Rs. 4,41,097 were purchased or received through gift prior to and during the check period as per the documents available with the case and therefore the Court below has held that only Rs. 23,703 is required to be taken towards the expenditure'for purchase ofjewelries. Counsel for the appellant submits ‘that from Ex. P-156 it is clear that the value of the total jewelries found in theJIous'e was Rs. 4,64,800 (for gold jewelry) and Rs. 20,106 (for silver jewelries). According to the counsel for the appellant, so far as the silver jewelries amounting to Rs. 20,106 are concerned, the same belongs to the mother of the appellant which is clear from the document Ex. D-11 — the judgment of the Income Tax Appellate Tribunal. According to him, the said fact has been admitted by the prosecution ‘IZ- during the:course of trial under the provisions of Section 294 of the Code of Criminal Procedure. Counsel for the appellant submits that income‘ of the mother of the appellant has not been accounted for while assessing the total income of the appellant and therefore, the expenditure incurred by the mother of the appellant towards purchase of silver ornaments is required to be deducted from the expenditure part of the appellant Apart from this counsel for the appellant submits that as per the settled posmon of law any person other than the Wife cannot » be the owner of Str/dhan and the said question has been demded by the Apex Court In the matter of Pratibha Rani v Sura] Kumar and another (AIR t985 SC 628) Counsel for the appellant thus submits that keeping In mind the aforesaid facts and also that smce there is no material on record to prove that the Jewelnes were purchased by the appellant, the complete amount taken as expenditLire towards purchase of jewelr‘ies is required to be deducted from the head of the appellant Counsel for the appellant fuither submits that the appellant has proved all the aforesaid facts In his defence but the Court below has totally Ignored the same So as to prove the defence of Str/dhan, counsel for the appellant placed reliance on the decision of M.P. High Court in the matter of Jagdish Laldas Badole v. State of M.P. reported in 2008 MPHT 268 According to the counsel for the appellant in view of the aforesald facts the expenditure towards purchase of Jewelries Ie Rs ¥@ 464 800 and Rs 20 106 are required to be deducted but the Court l below has