1 APEAL-270.01 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL APPEAL NO.270 OF 2001 Rajendra Jonko, residing at Flat No.101, 17/D MHADA Customs Colony, Adi S. Marg, Powai, Mumbai-400 076. .... Appellant - Versus - 1. The Superintendent of Police, Central Bureau of Investigation, Anti Corruption Bureau, Tanna House, Nathalal Parekh Marg, Coloba, Mumbai-400 005. 2. The State of Maharashtra .... Respondents S/Shri R.M. Agarwal, Senior Counsel with Prakash Naik for the Appellant. Shri Milind Sawant, Public Prosecutor for Respondent No.1-CBI. Ms P.P. Bhosale, Addl. Public Prosecutor, for Respondent No.2-State. 2 APEAL-270.01 CORAM : R.C. CHAVAN, J. RESERVED ON : SEPTEMBER 29, 2011 PRONOUNCED ON: NOVEMBER 25, 2011 JUDGMENT: 1. This appeal is directed against the conviction of the appellant, an Assistant Collector of Central Excise, for offence punishable under Section 12(2) r/w Section 13(1)(e) of the Prevention of Corruption Act, 1988 (for short, the PC Act, 1988 ) and sentence of RI for 4 years with fine of `5,000/- or in default further imprisonment for 6 months inflicted by the learned Special Judge, Mumbai. 2. It was alleged that the appellant had received towards pay and allowances from 15-11-1979 to 12-11-1987 a sum of `1,40,034.45, interest from Banks amounting to `57,672.51 and had borrowed `65,600/- from State Bank of India. He thus had amount of `2,63,306.96 available to him. His expenses for the period were quantified at `82,207.04 and thus was likely to have saving to the tune of `1,81,099.32. But as on 12-11-1987, the 3 APEAL-270.01 appellant was possessed of assets worth `6,42,882.42/- and thus the assets were disproportionate to the tune of `4,61,783.10 to his known sources of income. These conclusions were reached upon investigation which commenced on receipt of information by PI Prabhakar Shinde. On completion of investigation, papers were sent to appropriate authority seeking sanction to prosecute the appellant. Upon receipt of sanction, charge-sheet was filed before the Special Court on 5-3-1990 for offence punishable under Section 5(2) r/w Section 5(1)(e) of the Prevention of Corruption Act, 1947 (for short, the PC Act, 1947 ) . 3. The appellant pleaded not guilty to the charge of offence punishable under Section 5(2) r/w Section 5(1)(e) of the PC Act, 1947 on 28-11-1997. Since the appellant pleaded not guilty, he was put on trial at which prosecution examined in all 31 witnesses in its attempt to bring home guilt of the accused. The defence of the accused was that assets standing in the names of his wife Nirmala, sisters Rani and Munni and father were their own asset. He did not know if they had any independent source of income or not. The amounts were given by his father. He had not taken loan of `65,600/- from 4 APEAL-270.01 State Bank and had not purchased cars or house. He also filed a detailed written statement explaining his assets. After considering the evidence tendered, the learned Special Judge held that even if income as suggested by the appellant was taken into consideration, the assets were disproportionate by `3,86,570/- to the income of the appellant and therefore convicted and sentenced the appellant as mentioned earlier. Aggrieved thereby the appellant has preferred this appeal. 4. The appeal was first heard and allowed by Judgment dated 30-6-2004 by Hon'ble Shri Justice D.G. Deshpande. The State challenged the order before the Supreme Court. By its Judgment dated 25-9-2006 the Supreme Court set aside the Judgment of this Court and directed that this Court shall decide the appeal on merits and if this Court comes to the conclusion that case for upholding the conviction is made out, this Court shall correct the error of the trial Court in handing down conviction under Section 13 of the PC Act, 1988 and shall convict the appellant of offence punishable under Section 5(2) r/w Section 5(1) (e) of the PC Act, 1947. This is why the appeal was reheard. 5 APEAL-270.01 5. I have heard the learned counsel for the appellant and the learned PP for the CBI. With the help of both the learned counsel, I have gone through the evidence. In respect of assets attributed to the appellant, the evidence collected is as under:- Sr. No. Nature of Asset In the Names of Value Rs. Ps Evidence Remarks 1. Debentures of Tata Chemicals Munni+Nirmala +Rani+Nirmala 30000.00 PW-2 Yashodhara Exs.23, 24 2. FDRs of Mazgaon Dock ? 10000.00 PW-12 Selvaraj M Ex.80 3. FDRs of Stock Exchange 2FDs Nirmala, Rani, Munni 12000.00 PW-7 Coutinho Exs.49, 50 3 persons each 4. FDRs with Hindustan Construction Co. Ltd. Rani+Nirmala Munni+Nirmala 10000.00 PW-13 Kavita Exs.82, 83 5. Debentures with Mahindra & Mahindra Rani & Nirmala 15000.00 PW-11 Raghvachar i Exs.64 to 68, 69, 73 3x10x5 6. CDRs of Indian Oil Nirmala +Appellant, Munni+Nirmala, Rani+Nirmala 20000.00 PW-14 Vidyadhar Exs.86 to 88 (only 15000/- ?) 6 APEAL-270.01 7. FDRs of J.K. Synthetic Nirmala & Rajendra Jonko 12000.00 PW-1 Mahesh Shah Exs.17 to 21 Invest- ment by cheque. Source not traced. 8. FDRs with Hindustan Petroleum Munni, Rani, Nirmala, Gunjan (daughter) 20000.00 PW-6 Salunke Exs.44-47 4 FDs each in name of three persons Nirmala common in all FDs. 9. Debentures of Birla Jute Industries Gunjan+Nirmala Munni+Nirmala Nirmala+Rani Rani+Nirmala 30000.00 PW-8 Gajanan Agrawal Exs. 99-102. 10. FDRs/CTD Premier Automobiles ? 20000.00 PW-3 Roy D Souza Ex.26 11. Debentures Indian Hotels Co. Nirmala+Munni Munni+Nirmala Gunjan+Nirmala Rani+Nirmala 30000.00 PW-10 Prabhakar Phatak Exs.59-62 75 each pair of holders 12. FDRs of TELCO Nirmala, Rajendra, Rani, Munni 32000.00 PW-5 Navin Kumar Exs. 36 to 42 6 FDs each in Joint name of two persons each 13. Debentures of Reliance Ltd. Nirmala, Rani, Gunjan, Jonko 4000.00 PW-9 Padmakar Exs.54-57 10 each 7 APEAL-270.01 14. Bank balance Rajendra, Nirmala, Gunjan 34644.40 PW-4 Gopalan Aiyar Exs. 28-32. PW-21 Hiralal Jain Ex. 108. PW-22 Ramchandra Exs. 110-112. PW-23 Indrakant Canara Bank Exs. 114-114A. PW-26 Anant Maliar Central Bank Ex. 125. 15. Two Cars Nirmala Munni 180038.00 PW-15 Madan Mairal Exs.96, 97. PW-19 Rajan Masukar Ex.104. PW-20 Sanjay Chavan Ex. 160. Loans 16. National Savings Cetificate 82000.00 PW-15 Madan Mairal Ex. 91. PW-16 Narayan 8 APEAL-270.01 17. House at Chakradharpur 49500.00 PW-22 Ram- chandra Ex. 133-136, SBI. PW-25 K.C. Mishra Exs.122, 123 SBI. PW-28 Sujit Moitra Ex. 132 SBI. 18. Loan to Akundi Sundaramma 50500.00 - - 19. Telephone Deposit 1200.00 642882.42 20. Gold earrings 32.950 grams 21.984 Nirmal Jonko 6844.00 PW-8 Deepak Ex. 52 In addition to the above witnesses, other witnesses examined are: PW-17 Dr. Saifee, the appellant s landlord at Indore who states that the appellant paid rent @ Rs.700/- per month to him. PW-24 Ram Raj Bharati, Under Secretary, Government of India who proves sanction to prosecute. PW-27 Sunil Kumar of Biri Trading Company about income of the appellant s father 9 APEAL-270.01 (Exhibit-130), PW-29 PI P.B. Shinde, Investigating Officer. PW-30 PI Raman Tyagi, Investigating Officer. 6. The learned counsel for the appellant first submitted that the properties shown in the names of the appellant's father, wife or sisters would have to be excluded from being termed as the appellant's properties. He submitted that the charge does not show that the appellant was alleged to have held those assets benami. Therefore, according to him, since the charge does not show that the properties in the name of his relations were in fact owned by him, those properties ought to be excluded and if they are so excluded, the assets of the appellant are not at all disproportionate to his known sources of income. For this purpose, he relied on the following Judgments- 7. In Jaydayal Poddar (Deceased) through L.Rs. and another v. Mst. Bibi Hazra and others, reported in AIR 1974 SC 171, the Supreme Court was considering the question of nature of onus and proof in respect of benami 10 APEAL-270.01 transactions in the context of provisions of Section 54 of the Transfer of Property Act. In para 6 of the Judgment, the Court held as under: .... The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the 11 APEAL-270.01 transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No.1, viz. the source for determining whether the sale standing in the name of one person, is in reality for the benefit of another. This Judgment was followed up in Bhim Singh (dead) by L.Rs. and another v. Kan Singh, reported in AIR 1980 SC 727. 8. In Krishnanand Agnihotri v. State of M.P., reported in AIR 1977 SC 796, the Supreme Court considered the question of assets in the context of provisions of Section 5 of the Prevention of Corruption Act, 1947. The Court was considering, amongst other things, whether a sum of `11,180/- lying in fixed deposit with Allahabad Bank, Varanasi, in the name of Shanti Devi belonged to the appellant, a public servant, or to Shanti Devi. In this context, in para 26 the Court observed as under after relying on the Judgment in Jaydayal Poddar s 12 APEAL-270.01 case (supra): It is difficult to see how in the face of this overwhelming evidence it could be concluded that the sum of Rupees 11,180/- lying in fixed deposit in Shanti Devi's name was an asset belonging to the appellant. It must be remembered that the fixed deposit stood in the name of Shanti Devi and the burden, therefore, lay on the prosecution to show that Shanti Devi was a benamidar of the appellant. It is well settled that the burden of showing that a particular transaction is benami and the appellant owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. (Vide Jayadayal Poddar v. Mst. Bibi Hazra, (1974) 2 SCR 90 = (AIR 1974 SC 171). It is not enough merely to show circumstances which might create suspicion, because the court cannot 13 APEAL-270.01 decide on the basis of suspicion. It has to act on legal grounds established by evidence. Here, in the present case, no evidence at all was led on the side of the prosecution to show that the monies lying in fixed deposit in Shanti Devi's name were provided by the appellant and howsoever strong may be the suspicion of the court in this connection, it cannot take the place of proof. It must, therefore, be held that the prosecution has failed to show that the sum of Rs. 11,180/- lying in fixed deposit in Shanti Devi's name belonged to the appellant. This was followed up in P. Satyanarayan Murty v. State of Andhra Pradesh, reported in (1992) 4 SCC 39. 9. The learned counsel for the appellant submitted, relying on these authorities, that the difficulties of the prosecution in establishing that a transaction was benami do not relieve the prosecution of the onus to prove that the transaction was benami and that the Court cannot decide a case merely on the basis of suspicion. The learned counsel, therefore, submitted that the evidence tendered by the prosecution falls far too short of the standard of proof required to be tendered. 14 APEAL-270.01 10. He further submitted that since the charge does not mention that the assets standing in the name of the appellant s relations were held by the appellant benami in the names of his relations, the evidence could not at all be looked into and for this purpose relied on a Judgment of the Supreme Court in Shamsaheb M. Multtani v. State of Karnataka, reported in 2001 SAR (Criminal) 196. The Judgment was rendered in the context of a different offence. In that case, there was no charge of offence punishable under Section 304- B of the IPC and that the charge was only under Section 302 of the IPC. 11. The learned PP for the CBI countered by submitting that the charge categorically mentions all these properties and the details furnished with the charge-sheet also show names of the persons who were shown to be the holders of the assets concerned. He submitted that most of the fixed deposit receipts or debentures are either in the name of the appellant's wife or the appellant or the appellant and the appellant's wife together, or one or two of the appellant's sisters with the appellant's wife or the appellant's daughter and the appellant's wife together, as indicated in the chart in the 15 APEAL-270.01 earlier part of this Judgment. He submitted that the contention that the charge does not mention that the properties were held benami, therefore, has no substance. This charge categorically lists the properties and alleges that the appellant was possessed of those assets. Therefore, mere absence of use of the word benami would not matter. The learned PP further rightly submitted that the crucial test would be whether the persons concerned have any independent source of income to have been able to acquire the assets. He submitted that the evidence would show all these assets were acquired with the income of the appellant. Therefore, this contention about failure to mention that the appellant owned assets benami in the names of his relations has to be rejected. 12. The learned counsel for the appellant next submitted that the assets standing in the name of the relations were acquired by the relations themselves and there is nothing to show that they were acquired with the appellant s funds. He pointed out that the appellant's father Birsingh Ho was a respectable cultivator in Chakradharpur District. Birsingh Ho s father Budhan Ho was in 16 APEAL-270.01 fact Mukhiya of the village. He submitted that Birsingh was cultivating the land and was also working as a part-time accountant with Biri Trading Company and was not a biri worker. Birsingh had two wives, having married the second after the first wife died. The appellant had Budhan Jonko and Sukhram Jonko as his real brothers, Uday Jonko as his step-brother, Savitri Jonko as his sister, Jamuna Jonko, Munni Jonko and Rani Jonko as step-sisters. He stated that the appellant s father-in-law Dharamdas Mundari was an Assistant Commssioner of Sales Tax and retired as Additional Secretary, Finance Ministry in the State Government. The appellant married Nirmala, the daughter of Dharamdas in 1981. Nirmala s uncles also held big posts in Food Corporation of India and as a Civil Surgeon. Therefore, according to him, the family had sufficient nucleus to provide for acquisition of assets in the names of Rani and Munni, the appellant s step-sisters and Nirmala, the appellant s wife, coming from the appellant s father and father- in-law. The learned counsel also pointed out that there is nothing on the record to show that the investments came from the appellant. 13. He relied on a Judgment of the Supreme 17 APEAL-270.01 Court in D.S.P. Chennai v. K. Inbasagaran, reported 2006 Cri.L.J. 319, where the Court was considering the assets standing in the name of a public servant's wife. In this context, the following observations of the Court may be usefully reproduced as under: 15. .... Therefore, the initial burden was on the prosecution to establish whether the accused has acquired the property disproportionate to his known source of income or not. But at the same time it has been held in a case of State of M.P. Vs. Awadh Kishore Gupta and Others reported in (2004) 1 SCC 691 that accused has to account satisfactorily the money received in his hand and satisfy the court that his explanation was worthy of acceptance. In order to substantiate the plea taken by the accused that all the moneys which had been received belonged to his wife and in support thereof he has examined as many as 13 witnesses including himself, his wife and his son-in-law. D.W. 12 is the wife of the accused. She has deposed that the entire money belonged to her. She has admitted the raid on her house and she has also admitted that she has amassed the wealth by selling cycle rims and leather products without any bill and out of the money amassed by her she had persuaded her husband to deposit the same at various Banks. She has come forward and admitted the recovery of 18 APEAL-270.01 the foreign exchange at her house and she has accounted for the same. She has also admitted the recovery of the gold ornaments at her house and she has explained that she has purchased those gold ornaments. She has also submitted that some real estate was purchased out of self earning as well as the loan from the mother of the son-in-law and some contribution was made by the son-in- law and the son-in-law has also admitted. Likewise, D.W.8 - her son- in-law, Thiru S.Rajasankar also appeared in the witness box and admitted that he has also saved certain foreign exchange when he had gone on various visits abroad. He has also admitted to have carried some money to be deposited in the Bank. The accused has also come forward in the witness box as D.W.13 and has deposed that all the moneys belonged to his wife and when he came to know about the unaccounted money at his house, he gave his piece of mind to her. He has admitted that on one or two occasions money was carried by himself to be deposited in the account in Punjab National Bank and some money was also deposited on account of some of the members of the family by P.W.8, S. Rajasankar, son-in-law. Therefore, under these circumstances, the respondent has explained the possession of unaccounted money. 16. .... It is true that the prosecution in the present case has 19 APEAL-270.01 tried its best to lead the evidence to show that all these moneys belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by not showing in the Income-tax return and she has accepted the whole responsibilities, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In case of joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has not been prosecuted and it is only the husband who has been charged being the public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced on behalf of the accused coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by the Income-tax Department, it will not be proper to hold the accused guilty under the prevention of Corruption Act as his explanation appears to be plausible and justifiable. The burden is on the accused to offer plausible explanation and in the present case, he has satisfactorily explained that the whole money which has been 20 APEAL-270.01 recovered from his house does not belong to him and it belonged to his wife. Therefore, he has satisfactorily accounted for the recovery of the unaccounted money. Since the crucial question in this case was of the possession and the premises in question was jointly shared by the wife and the husband and the wife having accepted the entire recovery at her hand, it will not be proper to hold husband guilty. Therefore, in these circumstances, we are of the opinion that the view taken by the High Court appears to be justified and there are no compelling circumstances to reverse the order of acquittal. Hence, we do not find any merit in this appeal and the same is dismissed. It may be seen from the above observations that the wife of the public servant in that case had a plausible explanation about the assets standing in her name. Such is not the case of the appellant's wife. 14. The learned counsel for the appellant submitted that the burden on the appellant can be discharged with evidence which would be enough to create a probability. He submitted that the degree of burden of proof on the appellant is not as high as that on the State. For this purpose, he relied on a Judgment of the Supreme Court in Trilok Chand Jain v. State 21 APEAL-270.01 of Delhi, reported in 1977 Cri.L.J. 254 wherein, in para 8, the Court held as under: 8. Section 4(1) of the Prevention of Corruption Act reads: "Wherein any trial of an offence punishable under section 161 or section 165 of the Indian PenaI Code (or of an offence referred to in clause (a) or clause (b) of sub- section (1) of section 5 of this Act punishable under sub- s. (2) thereof, it is proved that an accused person has accepted or obtained, or has agreed to accept or attempt to obtain, for himself or for any other person, any gratification (other than legal remuneration or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161 or, as the case may be, without consideration or for a consideration which he knows to be inadequate." From a reading of the above provision it is clear that its operation, in terms, is confined to 22 APEAL-270.01 any trial of an offence punishable under s. 161 or s. 165, Penal Code or under clause (a) or (b) of s. 5(1) read with sub-section (2) of that section of the Act. If at such a trial, the prosecution proves that the accused has accepted or obtained gratification other than legal remuneration, the court