IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA WEDNESDAY, THE 3RD DAY OF NOVEMBER 2010/12TH KARTHIKA 1931 CRL.A.No. 713 of 2010 ( ) ------------------------- CC.28/2005 of ENQ.COMMR. & SPL.JUDGE,TRIVANDRUM APPELLANT(S): ------------------- T.G.NATESAN, RANGE OFFICER, SOCIAL FORESTRY, PONKUNNAM. BY ADVS.SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.P.M.SANEER RESPONDENT(S): ----------------------- DY.SUPDT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI.B.VINOD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-11-2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.Hema, J. ---------------------------- Crl. Appeal No.713 of 2010 ----------------------------- Dated this 3rd November, 2010 JUDGMENT Can a public servant be convicted for offence under Section 13(1)(e) of the Prevention of Corruption Act ('the P.C. Act' for short), only on proof that his wife or any other person is or has been in possession of pecuniary resources and property during the relevant period? Is a public servant bound to account for such possession under Section 13(1)(e) of the P.C. Act? These are the main questions to be decided in this appeal. 2. The Superintendent of Police (Vigilance) laid a charge sheet against appellant, who is a public servant, before the Court of Enquiry Commissioner and Special Judge ('the Special Judge', for short), alleging offence under Section 13(1)(e) read with Section 13(2) of the P.C. Act. After trial, the trial court convicted appellant under the said Section and sentenced him to undergo rigorous imprisonment for a period of one year and, in addition, to pay Rs.2 lakhs as fine. In default of payment of fine, he was also directed to undergo rigorous imprisonment for one year. The CRA 713/10 2 said conviction and sentence are challenged in this appeal. 3. Prosecution case, briefly: The appellant was a public servant working in the Forest Department during the period from 01.01.1990 to 16.11.2000. It was disclosed in an enquiry conducted by the Vigilance and Anti-Corruption Bureau ('VACB', or 'the Vigilance', for short) that appellant was in possession of assets disproportionate to the known sources of income, worth Rs.19 lakhs. He acquired estate in the form of land, building and other movables and costly articles, since 1990. 4. The income of appellant and members of his family was about Rs.15.9 lakhs and he incurred an expenditure at Rs.9.3 lakhs. The likely savings which can be generated from the income is about Rs.6.62 lakhs. As against the above savings, appellant and members of his family acquired movables and immovable assets, worth Rs.25.6 lakhs. Hence, the assets disproportionate to the known sources of appellant's income are worth about Rs. 19 lakhs. The enquiry thus, revealed that appellant committed offence under Section 13(1)(e) of P.C. Act. 5. On 16.11.2000, the Superintendent, VACB (Special Cell) CRA 713/10 3 registered F.I.R. A search was conducted in the house of appellant on 17th and 18th November, 2000. Several documents were seized; inventory was prepared. The search list is Ext.P5. Investigation was conducted by PWs79, 80 and 83. The final report was filed by PW83, on the allegation that appellant acquired estate, which is disproportionate to his known sources of income. The appellant and his wife are in alleged possession of pecuniary resources and property, to the extent of Rs.32,71,780.05 and 188.93 grams of gold ornaments, but he could not account for such possession and thereby, he committed offence under Section 13(1)(e) read with Section 13(2) of the P.C. Act. 6. PWs 1 to 84 were examined and Exts.P1 to P199 were marked on the side of the prosecution. The accused, while questioned under Section 313 of the Code of Criminal Procedure ('the Code', for short), took up several contentions and stated that he is innocent. The trial court held that the prosecution succeeded in proving that accused and PW2, his wife, were in possession of disproportionate assets during the check period. CRA 713/10 4 Thereby, he committed offence under Section 13(1)(e) read with 13(2) of P.C.Act. 7. Heard Sri.Sasthamangalam S.Ajithkumar, learned counsel for the appellant and Sri.B.Vinod, learned Public Prosecutor. Perused the records. While considering the rival contentions, I find it necessary to read Section 13 of the P.C. Act first. The provision (excluding the portions which are not relevant for disposal of this appeal) reads as follows: "13. Criminal misconduct by a public servant.-- (1) A public servant is said to commit the offence of criminal misconduct,-- (a) xxxxx ; or (b) xxxxx; or (c) xxxxx; or (d) xxxxx; or (ii) xxxxx; or (iii) xxxxx; or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known source income. Explanation.-xxxxx (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be CRA 713/10 5 not less than one year but which may extend to seven years and shall also be liable to fine". 8. A reading of Section 13 reveals that at any time during the period of office of a public servant, if any person on his behalf, is or has been in possession of pecuniary resources or property which is disproportionate to his known source income, and if the public servant cannot satisfactorily account for such possession, he will be guilty of offence of "criminal misconduct" under Section 13(1)(e) of the P.C. Act. So, a public servant may be liable for the offence under Section 13(1)(e) not only for possession of pecuniary resources or property by himself, but for such possession by any other person on his behalf. 9. The expression, “on his behalf” in Section 13(1)(e) is very important. As per Oxford Concise Dictionary – New 7th Edn. (1) “on behalf of” means, in the interest of (person, principle, etc.); (2) as representative of”. As per Webster's New Collegiate Dictionary, the expression “on behalf of” means, “in the interest of, as a representative of”. So, in cases in which a public servant is prosecuted for offence under Section 13(1)(e) of the P.C. Act, CRA 713/10 6 on the ground that his wife or any other person on his behalf is or has been in possession of property or pecuniary resources at any time during his office, prosecution is bound to allege and prove that such possession was in the interest of the public servant or as his representative. 10. To establish offence under Section 13 (1)(e) of the P.C Act, it is not enough if prosecution merely proves that the wife of a public servant or any other person was in possession of pecuniary resources or property during the relevant period. It must be further alleged and proved that such possession was “on his behalf” i.e., in the interest of the public servant or as his representative. If there is no such allegation or proof that the prosecution of pecuniary resources or property by his wife was on behalf of the public servant, he cannot be convicted for offence under Section 13(1) (e) read with Section 13 (1) (2) of the P.C Act. 11. To prove the most crucial fact under Section 13(1)(e) of the P.C. Act, PW2, the wife of appellant, was examined in this case. But it has come out in evidence that PW2 was not even his CRA 713/10 7 wife, at the commencement of the check period on 01.01.1990. As on that date as per the admitted case of prosecution itself, appellant had another wife and she was divorced only as per a decree dated 10.5.1993 much after the above date. PW2 was allegedly married to accused only on 25.04.1990, after 4½ months of commencement of the check period. These facts are all elicited during investigation and borne out by prosecution records. 12. Still, interestingly, the property in possession of PW2 as on 01.01.1990 is also seen taken into account for proving the assets of accused and his guilt under Section 13(1)(e) of the P.C. Act. The prosecution has absolutely no explanation why and under what circumstances, the properties of PW2, who was not even his wife during that period, was taken into account for computing appellant's assets. The evidence of PW2 also reveals that she was working abroad and the properties which are subject matter of this case were purchased by using her own fund ,on her own behalf. PW2 gave detailed evidence how she raised the fund. 13. In the chief examination itself, PW2 stated that she CRA 713/10 8 purchased property by sending money while she was in Gulf country and the transaction was dealt with by her brothers. She also stated in the chief examination that whatever amount was received by sale of property was deposited in her own account in Dhanalakshmi Bank. She also stated that the said property was sold by her to one Thomas Mathew and the copies of those documents were seized as per the search list. In cross- examination, further details of the properties were also elicited. 14. PW2 admittedly, is an Income Tax assessee. To establish that her income was assessed by the Income Tax Department, various documents were seized during investigation and those were produced in court. Even the PAN card number was stated by PW2 in her evidence. She deposed that the house which is constructed by her in the property purchased by her was shown in the Income tax returns and the value was assessed at Rs.27.5 lakhs. This assessment was accepted by the trial court also and there is no reason to hold otherwise. 15. PW2 is not hostile to prosecution. No request was made by prosecution to treat her as hostile. She was not declared CRA 713/10 9 hostile. The prosecution cannot, therefore, disown evidence of PW2. Though PW2 was cross-examined at length, re-examined and her re-examination itself runs to several pages, PW2 did not depose that any property, money or gold which were in her possession were held by her on behalf of the accused. There is nothing in her evidence to show the properties which stood in her name were purchased by her husband in her name or that she was in possession of those properties “on behalf of” her husband, in his interest or as his representative. 16. As per the case records, prosecution does not have a case that possession of property or pecuniary resources by appellant's wife PW2 during relevant time was on behalf of appellant ie., in his interest or as his representative. Several questions were put to several witnesses during trial and several facts were brought out also, in an attempt to show that PW2 had no source of income for purchasing the property in her name. But, there is nothing in evidence to show that possession of any of the property or pecuniary resource by PW2 was on behalf of appellant. CRA 713/10 10 17. There is also no whisper even in the charge submitted by VACB or framed by the court that whatever pecuniary resources or property was in possession of PW2 was held by her on behalf of the appellant. Learned Public Prosecutor however, argued that a reading of the charge as a whole will reveal that the allegation was that the wife was holding the property on behalf of the appellant. I shall extract the charges, excluding the details relating to name, places etc. In the charge sheet laid by PW83, it is stated as follows: “Charge against the accused .....is that he, being a public servant......during the period from 1.1.1990 to 16.11.2000 acquired assets which is disproportionate to his known sources of income and as on 16.11.2000 he has been in his and in possession of his wife ....of pecuniary resources and property to the extent of Rs.32,71,780.05 and 188.93 gm of gold ornaments (as per statements attached) which is disproportionate to his known sources of income and for which he could not satisfactorily account for and thereby committed offence under Section 13(1)(e) of PC Act, 1988 and punishable under Section 13(2) of the said Act ....” 18. The charge framed by the court is extracted as hereunder, excluding the details relating to name, places etc.: CRA 713/10 11 “That-you the accused being a public servant ......during the period from 1.1.1990 to 16.11.2000 acquired assets which is disproportionate to your known sources of income and as on 16.11.2000 you the accused has been in your and in possession of your wife, ....., of pecuniary resources and property to the extent of Rs.32,71,780.05 and 188.93 gram of gold ornaments which is disproportionate to your known sources of income and for which you could not satisfactorily account for and thereby committed offences under S.13(1)(e) of P.C. Act, 1988 which is punishable under S.13(2) of the Act and within my cognizance.” 19. What is stated in the charge sheet laid by VACB as well as in the charge framed by the court is that appellant was in his possession and also in possession of his wife, pecuniary resources and property to the extent of Rs.32,71,780.05 and 188.93 grams of gold ornaments. But, there is absolutely nothing in the charges to show that such possession of pecuniary resources or property by PW2 was “on behalf of” appellant. 20. Referring to the discrepancy in the charge, learned Public Prosecutor also argued that it is only a mere omission in the charge to mention the expression “on his behalf”, but it cannot be fatal to prosecution. In the light of Section 464 of the CRA 713/10 12 Code, accused cannot be acquitted on the mere ground that there is an omission in the charge, it is argued. It was also strongly argued by learned Public Prosecutor that when there is an omission in the charge and a failure of justice has been occasioned thereby, the court can only order that the charge be framed and that trial be recommenced from the point, immediately after the framing of the charge, as per Section 464 of the Code. 21. It is also argued by learned Public Prosecutor that this court can direct a new trial be put upon a charge framed in whatever manner it thinks fit. Therefore, a re-trail may be ordered instead of acquitting the accused, it is submitted. To appreciate the above argument, a reading of Section 464 of the Code is necessary. Section 464 of the Code reads as follows: “464. Effect of omission to frame, or absence of, or error in, charge.—(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any mis-joinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure CRA 713/10 13 of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may- (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction”. 22. On a close reading of Section 464 of the Code and on a reading of provisions contained in Chapter XVII of the Code, I am unable to accept the arguments advanced by learned Public Prosecutor for the following reasons: First of all, this is not a case in which there is any omission to frame charge. Charge is framed for offence under Section 13(1)(e) of the P.C. Act. The failure to incorporate the expression ”on his behalf” in the charge cannot CRA 713/10 14 be treated as a mere omission. The charge submitted by the VACB itself does not disclose that possession of property by accused's wife, PW2 was “on his behalf”. The records produced by prosecution also do not reveal such fact. 23. Therefore, the trial court could not have framed a charge, by incorporating the relevant expression, “on his behalf” in the charge. If for want of materials on records, the relevant facts could not have been stated in the charge framed by court, it cannot be said that there is only a mere omission to state the relevant fact or expression in the charge. It will be a case where a proper charge could not have been framed by court by incorporating the expression “on his behalf” for want of sufficient materials or record. Hence, it cannot be said that there was only an omission, error or irregularity in the charge, as stated in Section 464(1) of the Code. 24. It is also relevant to note that as per the proviso to Section 464(2) of the Code, if the Court of appeal is of opinion that the facts of the case are such that no valid charge could be CRA 713/10 15 preferred against the accused in respect of the facts “proved”, it shall quash the conviction. In this case, no valid charge could be framed under section 13(1)(e) of the P.C. Act, in respect of the facts “proved”. The fact that possession of the pecuniary resources and property by PW2 is on behalf of accused is not “proved” in this case. Therefore, the proviso to Section 464(2) of the Code squarely applies to the facts of this case and hence, the court shall quash the conviction. 25. Even if the entire arguments advanced by learned Public Prosecutor are accepted, this case cannot be remanded under Section 464(2) of the Code as requested by him. This is for the reason that no valid charge can be framed against accused in this case for offence under Section 13(1)(e) of the P.C. Act, by incorporating the expression, “on his behalf”, for want of proof of such facts. Therefore, instead of remanding the case, the conviction passed against accused has to be quashed, as per the proviso to Section 464(2) of the Code. CRA 713/10 16 26. It is clear from the dictum laid down in Sou. Vijaya v. State of Maharashtra ((2003) 8 SCC 296) that if there is no evidence on record to disclose an important ingredient of the offence, that itself can be made a ground for acquitting the accused for the offence. The Supreme Court held in Sou. Vijaya v. State of Maharashtra ((2003) 8 SCC 296) thus: “Though in a given case defective charge does not vitiate trial in terms of Section 464 of the Criminal Procedure Code, 1973 (for short “the Code”), where the omission is vital and even the substance of accusations is totally different from what is sought to be established by the prosecution, and there is no evidence on record to attribute knowledge of commission of the offence by the other accused that can be an additional factor for acquitting the accused”. 27. It is also to be mentioned in this context that though it is stated in the charge that appellant was in possession of pecuniary resources and property, as per the prosecution record itself (vide basic statement-Ext.P165), appellant was not having any pecuniary resources and property in his possession as on 16.11.2000, though such a statement is made in the charges. The records in this case, particularly Ext.P165, which is the basic CRA 713/10 17 statement, reveals that prosecution does not have a case that appellant had any assets, pecuniary resource or property in his own name. 28. The specific allegation as per the records is that PW2, appellant's wife was having certain properties (1.64 acres of land and house and gold ornaments in her possession). But, prosecution failed to allege and prove that such possession was “on behalf of” appellant. Unless the prosecution asserts and proves that alleged possession of the property etc., by wife of the public servant is on his behalf, he cannot be convicted for offence under Section 13(1)(e) of the P.C. Act. 29. For the mere reason that a public servant's wife or any other person is in possession of pecuniary resources and property, he cannot be found guilty of offence, under Section 13 (1)(e) of the P.C. Act, unless it is further proved that such possession “on his behalf”. It is also to be borne in mind that there is no provision which permits a presumption of fact or law that possession of pecuniary resources or property by any member of the family of a public servant or any other person is CRA 713/10 18 “on his behalf”. No provision was pointed out also by which the court can presume that possession that pecuniary resources or property by the wife or any member of the family of a public servant is “on his behalf”. 30. Therefore, in the absence of any provision of law which permits the court to presume that possession of any property or pecuniary resources by a public servant's wife is “on his behalf”, the court shall not presume, assume or proceed on any surmise or conjuncture that such possession is only on behalf of such public servant, especially if such an allegation is absent in the records. There may be cases in which wife of a public servant may be have her own property, in her name. It may be inherited by her or acquired by herself with her own funds. It may be gifted to by her near relatives other than her husband also. 31. Therefore, merely because a woman happens to be the wife of a public servant, the court shall not jump to the conclusion that all the properties held by her were purchased in her name by the husband. If the prosecution has a case that pecuniary resources or property was acquired by any person with CRA 713/10 19 the funds of a public servant and it is in his/her possession on his behalf, such fact must not only be alleged but, it must also be proved by prosecution to establish offence under Section 13(1)(e) of the Act. 32. The court below however, without consideration of the most crucial fact whether possession of property or pecuniary resources by PW2 during the check period was on behalf of appellant, as his representative or in his interest, convicted appellant. Of course, there is a one-line finding that possession of property etc., by PW2 was on his behalf, but such finding is not based on any evidence on the relevant facts. The entire discussion in the impugned judgment is in respect of the property and the other assets which were in the possession of PW2 but, the most crucial aspect whether those were held by her on his behalf of accused was not considered by the lower court. 33. It is also pertinent to note that while questioned under Section 313 of the Code, no question was also put to the accused whether any one of the items of property or pecuniary resources which was in possession of PW2 was held by her on his behalf. CRA 713/10 20 From this fact itself, it is clear that there is nothing in evidence against the accused to hold that possession of any one of the items of property by PW2 was on behalf of appellant. It is well settled that an accused cannot be convicted, unless the relevant incriminating facts are put to the accused while questioned under Section 313 of the Code. Therefore, this is also an added factor to hold that the conviction under Section 13(1)(e) against the appellant is bad and unsustainable. 34. However, learned Public Prosecutor strongly argued that in