CRIMINAL MISC.-M NO.41560 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 25, 2008 Kishan Chand .....Petitioner VERSUS State of Punjab and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.R.S.Ghuman, Advocate, for the petitioner. Mr. A. S. Brar, DAG, Punjab, for the respondent. **** RANJIT SINGH, J. This petition is for quashing of FIR No.4 dated 7.3.2007 registered under sections 13(1)(E) read with Section 13(2) of the Prevention of Corruption Act, 1988. The petitioner claims that this FIR is totally false, concocted and baseless and so the petitioner has been victimised by lodging of the said FIR. Petitioner pleads that he has been in service for 32 years and has never misused his position in any manner. He also claims that there has never been any complaint against him in discharge of his official duties. Disclosing that sons of the petitioner, CRIMINAL MISC.-M NO.41560 OF 2007 :{ 2 }: named, Jasvir Singh and Jatinder Singh have settled in Greece and Italy, respectively, and have been sending money for him, which he utilised for purchasing the property which is now being alleged to be disproportionate to his known source of income, he has pleaded for quashing of this FIR. This FIR has been registered by Vigilance Bureau, Jalandhar on the basis of an enquiry against the petitioner, who has served as Inspector PUNSUP, Nawashahar. It is alleged that during his said posting, the petitioner has accumulated money through corrupt means to make immovable property in his name. It is stated in the FIR that the petitioner has received total income of Rs.11,78,239/- from 30.6.2001 to 20.6.2006, but has spent an amount of Rs.33,09,560/- during this period. Thus, he is alleged to have spent a sum of Rs.21,31,321/- more than his income and, thus, is answerable for an offence under Section 13(1)(E) and 13(2) of the Prevention of Corruption Act. The petitioner has made an attempt to explain the assets which he has acquired to say that he has been able to account for his assets, which explanation has not been taken into consideration by the Vigilance Bureau. The counsel appearing for the petitioner made reference to the averment in the petition to say that he has purchased 10 marlas land in Nawashahar in 1980 and built a house thereon. The petitioner jointly with his wife bought another house at Nawashahar on 12.12.1991 for Rs.31,000/-. He further states to have bought another house on 19.11.2003 for an amount of Rs.6,50,000/-, which was further sold on 16.11.2005 for Rs.12,87,000/-. With this money, the petitioner purchased land measuring 15 marlas 1 sarsahi CRIMINAL MISC.-M NO.41560 OF 2007 :{ 3 }: for Rs.6,04,000/- and another land measuring 10 marlas 8 Sarsahi for Rs.4,40,000/- and, thus, would account for this property which is alleged to have been acquired being a disproportionate to his known source of income. Similarly, he has made reference to other properties to account for the acquisition of the same to ultimately urge that no property acquired by the petitioner is disproportionate to his known source of income. On notice having been issued, the reply has been filed on behalf of the Punjab Vigilance Bureau, Nawashahar. It is disclosed in the reply that after investigation, challan in this case has been presented in the court of Special Judge, Nawanshahar. While replying to the submissions made on merits, the answering respondent would point out that FIR is based on true facts established during enquiry and investigation. It is further submitted that as per the conduct Rules, the employee is required to seek permission or intimate the Department regarding any money received from abroad or from his relatives, which obviously has not been done in this case. The answering respondent would also refer to Explanation under Section 13(1)(e) of the Act, which says that the “known source of income” means an income received from any lawful source of income and such receipt has been intimated in accordance with provisions of any law, rules or orders for the time being applicable to the public servant. The submission accordingly is that the property, which was acquired without intimating the lawful source, cannot be treated as a known source of income. Accordingly, it is prayed that no case for quashing the FIR is made out. Mr.R.S.Ghuman, counsel for the petitioner by referring to CRIMINAL MISC.-M NO.41560 OF 2007 :{ 4 }: the provisions of Section 13(1)(e) would say that the petitioner can be charged with this offence in case he is found in possession of some property for which he cannot satisfactorily account for a pecuniary source or a property disproportionate to his known source of income. It appears that the counsel has attempted to make out a case that he has accounted for his assets and as such offence under Section 13(1)(e) of the Act is not made out. Apparently, the counsel has not been able to appreciate that he is seeking quashing of the FIR and the manner in which he has made an attempt to account for or explain his assets obviously cannot be done for quashing of the FIR, as he has to prove all these facts by leading relevant evidence before the trial court. While exercising jurisdiction under Section 482 Cr.P.C., this court cannot, on the basis of affidavit, conclude that explanation offered by the petitioner is to be accepted. The prosecution is to be given a chance to prove the allegations against the petitioner by leading cogent evidence. The petitioner thereafter would get an opportunity to offer his defence and in the process would explain that the assets, which are alleged to be in his possession, are due to known source of income and only then the trial court will be able to decide if any offence is made out or not. How on the basis of the averments made in the petition, this court would decide this issue is really not understood. Reference is made to the case of Krishnanand Agnihotri Vs. State of M.P. AIR 1977 SC 796. Counsel seeks support from the observations made by the Hon'ble Supreme Court in this case to the effect that the excess was comparatively small-it being less than ten per cent of the total income-it would not be right CRIMINAL MISC.-M NO.41560 OF 2007 :{ 5 }: to hold that the assets found in possession of the accused were disproportionate to his known source of income. These observations were made by the Hon'ble Supreme Court while dealing with the criminal appeal filed by the appellant therein and it was not in the context of quashing of the FIR. It is yet to be established on the basis of evidence as to what is the disproportion alleged against the petitioner. Counsel also refers to some supplementary challan having been presented in this case but there is nothing on record in this regard. As per the allegations in the FIR, the disproportion alleged against the petitioner is to the tune of Rs.21,31,321/- with his income being Rs.11,78,239/-. This certainly cannot be said to be comparatively small. In any case, the Hon'ble Supreme Court in the case of Krishnanand Agnihotri (supra) was dealing with the presumption that would arise in terms of the provisions of Prevention of Corruption Act. While dealing with Section 5 of Prevention of Corruption Act, 1947, the Supreme Court has observed that this section consists of two parts. The first part sets out the facts which if proved give rise to a rebuttable presumption. It is then observed that it would be open to the accused to establish that despite the disproportion of his pecuniary resources of a property to his known source of income, he is not guilty of criminal misconduct in the discharge of his official duty. This burden of displacing the presumption is on the accused and if he failed to discharge the same, he would be liable to be convicted for the said offence. It is in this background that the Hon'ble Supreme Court observed that the excess in the said case was comparatively small so as to justify the presumption under Section 5(3) of the Act. How this would be CRIMINAL MISC.-M NO.41560 OF 2007 :{ 6 }: relevant consideration for quashing of the FIR really is not understood. Question of drawing presumption would arise during the course of trial and such a presumption, even if drawn, would be a rebuttable one on the basis of the evidence and the material led by an accused person. The counsel is completely ignoring another very vital aspect that there has been drastic amendments in Section 13 of the provisions of Prevention of Corruption Act, 1988, when compared with corresponding Section 5 of the Prevention of Corruption Act 1947. Under the new Clause, the earlier concept of “known source of income” has undergone a radical change. In State of Madhya Pradesh v. Awadh Kishore Gupta & Ors., AIR 2004 SC 517, it is held that the prosecution is relieved of burden of investigating into a “source of income” of an accused to a large extent, as it is stated in the explanation that “known source of income” mean income received from any lawful source, the receipt of which has not been intimated in accordance with the provisions of any law, rule or orders for the time being applicable to a public servant. It is further observed that it is not and cannot be contended that “known source of income” means sources known to the accused and that the prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be the matters “specially within the knowledge” of the accused, within the meaning of Section 106 of the Indian Evidence Act and required to be so established during the course of trial. Thus, it will not be possible to interfere in exercise of jurisdiction under 482 Cr.P.C. on such grounds as is pleaded. In Awadh Kishore Gupta's case (supra),, it has also been held that CRIMINAL MISC.-M NO.41560 OF 2007 :{ 7 }: the High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. It is also observed that inherent power should not be exercised to stifle a legitimate prosecution and that it would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that proceedings are to be quashed. It is further held that it is not permissible for the High Court to act as if it was a trial Judge and that the court cannot appreciate evidence to conclude whether materials produced are sufficient or not for convicting the accused. In Chand Dhawan (Smt.) v. Jawahar Lal and Ors., AIR 1992 Supreme Court 1379, it was observed that when materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. Accordingly, there is no ground made out either from the petition or otherwise for quashing this FIR in exercise of inherent jurisdiction by this court. There being no merit, the petition is dismissed. September 25, 2008 ( RANJIT SINGH ) ramesh JUDGE CRIMINAL MISC.-M NO.41560 OF 2007 :{ 8 }: