1 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE (DIVISION BENCH: HON. MR. JUSTICE S.K. SETH & HON. MR. JUSTICE PRAKASH SHRIVASTAVA) Criminal Appeal No.1127/2000 Brijmohan Sakhi S/o Babulal Sakhi, Aged - 56 year, Occ. - Asst. Engineer, R/o - 340, Usha Nagr Extension, Indore (M.P.) .... Appellant Vs. State of M.P. Through Special Police Establishment, Lokayukt Office, Indore .... Respondent ------------------------------------------------------------------------------- Shri T.N. Singh, learned senior counsel with Ms. Hemlata Gupta Adv., for the appellant. Shri Anand Soni, learned counsel for the respondent. ------------------------------------------------------------------------------- Criminal Revision No.21/2001 State of M.P. Through Special Police Establishment, Lokayukt Office, Indore .... Applicant Vs. Brijmohan Sakhi S/o Babulal Sakhi, Aged - 56 year, Occ. - Asst. Engineer, R/o - 340, Usha Nagr Extension, Indore (M.P.) .... Respondent ------------------------------------------------------------------------------- Shri Anand Soni, learned counsel for the appellant. Shri T.N. Singh, learned senior counsel with Ms. Hemlata Gupta Adv., for the respondent. ------------------------------------------------------------------------------- Whether approved for reporting:- 2 JUDGMENT (Delivered on 11/7/2011) Per Prakash Shrivastava, J :- 1/ This judgment will also govern the disposal of Criminal Revision No.21/2001. The appellant, being aggrieved with the judgment dated 20.9.2000 passed by the Special Judge and First Additional Judge, Indore in Special Trial No.18/96 convicting the appellant for offence under Section 13(1)(e)/13(2) of the Prevention of Corruption Act (for short “PC Act”) and sentencing him for one year's RI and fine of Rs.50,000/-, in default one year RI, has filed the present appeal. 2/ The Criminal Revision No.21/2001 is at the instance of the State against the above judgment with a prayer for confiscating the disproportionate asset found in possession of the appellant. 3/ The appellant during the relevant time was working as Sub Engineer in the irrigation department of the State. On 17.7.1991, vide letter Annexure P/91, the Dy. Superintendent, Special Police Establishment, Indore had received the intimation that the appellant in his 17-18 years of service has amassed illegal disproportionate wealth. In the preliminary investigation it was found that the appellant was appointed as Sub Engineer in 3 the irrigation department on 10.10.1975 and prior to that he had joined service on 1.5.1963 in Jyoti Iron Works, Indore, where he had worked till 1.5.1966 and from 14.8.1966 to 30.6.1968 he had worked in Hukumchand Mill on monthly salary of Rs.1,00/-, and from 1.7.1968 to September 1968 he had worked in Vinod Steel Pologround, Indore on monthly salary of Rs.2,00/-, and from January 1969 to April 1969 he had worked in Gajra Gear, Dewas on monthly salary of Rs.2,50/-. It was also found that the appellant from 10.10.1975 to 3.9.1991 had received salary of Rs.1,79,552/-. During the preliminary investigation it was revealed that the appellant during the check period 10.10.1975 to 3.9.1991 had income of Rs.5,10,772/- from known sources of income, whereas he had spent Rs.7,90,885/- during this period, therefore, he had disproportionate asset of Rs.2,80,163/-, for which he could not furnish any satisfactory explanation. A Dehati Nalishi (Ex.P/1) was registered in Special Police Establishment, Lokayukt Office, Indore and intimation was sent to Special Police Establishment, Police Station, Bhopal, where FIR was registered for offence under Section 13(1)(e) of the PC Act and after completing the investigation and obtaining sanction of prosecution from the Law and Legislative Works Department, vide Annexure P/49, the Challan was filed. Trial Cort framed the 4 charge for commission of offence under Section 13(1)(e)/13(2) of the PC Act, 1988 and in alternative under Section 5(1)(e), 5(2) of the PC Act, 1947. Appellant had abjured the guilt and trial took place. 4/ As per the prosecution case, the appellant during the check period had earned income of Rs.5,10,722/-. The appellant had received a sum of Rs.1,79,552/- as salary for the period 10.10.1975 to 3.9.1991, he had taken loan of Rs.1,50,000/- for construction of house from Indore Cloth Market Bank, he had withdrawn Rs.36,900/- from GPF account, obtained Rs.10,450/- from Bank of India, Amjera Branch, received house rent of Rs.38,400/- and obtained the loan of Rs.86,420/- from the relatives. Thus he had received a total sum of Rs.5,10,722/- during the check period. 5/ As per the prosecution case as reflected in the FIR (Ex.P/1), the appellant had incurred an expenditure of Rs.7,90,885/- during this period under the following heads :- 1. House constructed on the plot. Rs.4,49,720/- 2. Purchased a shop No.3, Janpriya Centre, Mhow Naka, Indore. Rs.1,00,101/- 3. Purchased scooter. Rs.8,000/- 4. Spent on Mundan Sanskar of the child. Rs.3,000/- 5. Repaid loan to Indore Cloth Market Cooperative Bank. Rs.75,400/- 6. Spent on Modern Enterprises. Rs.20,000/- 5 7. 75% of the salary spent as household expenses. Rs.1,34,664/- Total Rs.7,90,885/- Thus as per prosecution case the appellant had disproportionate asset worth Rs.2,80,163/- (Rs.7,90,885 - Rs.5,10,722) 6/ Trial Court by the impugned judgment accepted the contention of the appellant in respect of the addition of expenditure relating to Modern Enterprises, Mundan Sanskar and cost of construction of house, and accepted the argument relating to the additional income excluding expenditure from the earlier employment and the salary for the period July 1991 to September 1991, and found an amount of Rs.91,429/- deductable from the alleged disproportionate asset under the aforesaid head. The trial Court found the deduction of Rs.91,429/- in different heads in the following manner :- 1. Difference of cost of construction of house. Rs.40,850/- 2. Expenditure on Modern enterprises. Rs.20,000/- 3. Expenditure on Mundan Sanskar. Rs.3,000/- 4. Salary for the period July 1991 to September 1991, which was not added by the investigating agency. Rs.7,750/- 5. Amount earned by the appellant from previous employment excluding household expenses. Rs.19,824/- The amount under item 1 to 3 is to be added in the expenditure head and in item 4 and 5 to be added in income head. 6 7/ In addition to the aforesaid, the trial Court also deducted 10% as margin from total expenditure of Rs.5,18,477/-, which comes to Rs.51,847/-. The said margin was deducted in terms of the judgment of the Supreme Court in the matter of Krishnanand Agnihotri V. State of M.P. reported in AIR 1977 SC 796. Thus the trial Court finally reached to the conclusion that the appellant was in possession of the disproportionate asset amounting to Rs.1,36,887/- during the check period, for which the appellant failed to furnish the satisfactory explanation. The trial Court accordingly convicted the appellant for offence under Section 13(1)(e)/13(2) of the PC Act. 8/ Learned counsel appearing for the appellant submitted that the cost of construction of the house has been wrongly calculated ignoring the statement of the relevant prosecution as well as the defence witnesses. He further submitted that the trial Court has committed has committed an error in calculating the household expenses on the higher side by adding the amount of the repayment of loan in the household expenses. He has also submitted that the income of the appellant has been assessed on the lower side and that rental income has not been properly assessed. 9/ Learned counsel appearing for the respondent supporting the judgment submitted that no error has been committed by the trial Court in passing the impugned award and that on the basis of the evidence on record, it has rightly been found that the appellant is in possession of the assets of value more than his known source of 7 income. 10/ We have heard the learned counsel for the parties and perused the record. 11/ Trial Court has found the appellant in possession of disproportionate asset of Rs.1,36,887/-, for which he failed to furnish any satisfactory explanation. 12/ The first contention of the learned counsel for the appellant is in respect of the assessment of the cost of construction of the house on plot no.340 at Usha Nagar Extension, Indore. The prosecution has examined PW-2 P.N. Aiyer, who had done the valuation of the house and had proved the valuation reports Ex.P/5 to P/9 in respect of the ground floor, first floor and second floor of the house. According to the statement of PW-2 P.N. Aiyer and the valuation reports Ex.P/5 to P/9, the appellant had incurred an expenditure of Rs.4,08,500/- in the construction of the house, from this amount trial Court has allowed 10% deduction of Rs.40,850/- as supervision charges on the ground that the construction of the house was done by the appellant under his own supervision. 13/ The PW-2 P.N. Aiyer has stated that the valuation of the construction was done on the basis of the rates of the Public Works Department. He has admitted that he had not verified the rates of building material from the market for the concerned period. He has admitted that if the material of lower quality is used then a saving up to 15% can be done. He has further admitted that the wood is cheaper 8 at Aasta and Sujalpur as compared to Indore and wood can be purchased at a very cheap rate in the forest auction. He has also admitted that the rate of stone at Rajasthan is much lower as compared to Indore and second quality tiles are 25% cheaper, and that sand and Gitti can be obtained at a lower rate if the supplier is known and that in the P.W.D. road contract the profit of the contractor is also included. He has also admitted that if the electric fittings are brought from Delhi, they are very cheap. 14/ The appellant in his statement under Section 313 Cr.P.C. has stated that he had purchased marble stone from Rajnagar (Rajasthan) and Kota stone from Kota, and wood from Aastha and brick from Shajapur at a cheaper rate. He has also stated that he had purchased the electric fittings in wholesale from Delhi, therefore, he had incurred much lesser cost of construction than the one valued by PW-2 P.N. Aiyer. 15/ DW-8 Amar Singh Sacheti, who is also an engineer by profession and a friend of the appellant, has stated that he had helped the appellant in purchasing the material for construction of house. He has stated that he had helped the appellant in purchasing Kota stone from Kota at half rate since he was in service at Kota. He had also helped the appellant in purchasing bricks from Shajapur and marble from Rajnagar at a very cheap rate. 16/ Considering the aforesaid evidence, it is found that the calculation of the cost of construction by the prosecution was on the 9 higher side since it was done on the basis of the PWD rates without taking into account the fact that PW-2 P.N. Aiyer had not done the valuation after obtaining the market rates for the relevant period and also without taking into account the cheaper material, which was purchased by the appellant from different places in bulk. Considering the aforesaid evidence, it is found that the trial Court ought to have permitted at least 15% deduction from the cost of construction estimated by PW-2 P.N. Aiyer to arrive at the actual cost of construction of house. Thus the appellant is entitled to a deduction of Rs.4,49,720/- x 15% = Rs.67,458/- under the head of cost of construction of the house. 17/ The second contention of counsel for the appellant is about calculation of household expenses. Trial Court has calculated the household expenses as Rs.1,34,665, which is 75% of Rs.1,79,552/- (income of the appellant) which is much on the higher side. In paragraph 18 as well as 19 of the judgment the trial Court has accepted the argument that only 1/3rd is required to be deducted from the income towards the household expenses. Trial Court noted that if 1/3rd is taken to be the household expenses, then the difference in household expenses comes to Rs.74,815/-. The trial Court even after accepting the argument of the appellant that household expenses should be calculated at the rate of 1/3rd of the income, has refused to delete the differential expenses of Rs.74,815/- only on the ground that during the check period the appellant had repaid the loan of 10 Rs.75,400/-, therefore, the said amount will be included in the household expenses. The trial Court failed to appreciate that the amount of Rs.75,400/- relatable to the repayment of Bank loan has been added under the head of repayment of loan in the expenditure of the appellant, therefore, the said amount cannot be added again while calculating the household expenses. The FIR (Ex.P/1) also shows that sum of Rs.1,34,665/- was not calculated after adding the loan repayment amount but was the amount calculated only towards the household expenses. Therefore, the appellant is entitled to a deduction of Rs.74,815/- which has been added under the head of the household expenses in excess of 1/3rd household expenses. 18/ Thus appellant is entitled to a deduction of Rs.1,42,273/- (Rs.67458/- under the head of cost of construction of the house and Rs.74,815/- under the head of the household expenses.), which furnishes a sufficient explanation to the sum of Rs.1,36,881/- found unexplained by trial Court. Considering the aforesaid analysis, it is clear that the appellant has successfully proved that he had purchased the assets in his possession from his known source of income. 19/ The Supreme Court in the matter of Sajjan Singh V. State of Punjab reported in AIR 1964 SC 464 referring to Section 5 of the Prevention of Corruption Act, 1947 has held that the legislature has not chosen to indicate what proportion should be considered disproportionate and the court should take liberal view of the excess of the assets over the receipts from the known source of income. 11 20/ Thus it is found that the alleged offence has not been proved against the appellant and his conviction under Section 13(1) (e)/13(2) of the Prevention of Corruption Act can not be sustained and is hereby set aside. The appellant is on bail, his bail and surety bonds stand discharged. (S.K. SETH) (PRAKASH SHRIVASTAVA) J u d g e J u d g e Trilok/-