[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 1848/2007 ASHOK KUMAR THAKUR Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 29.11.2007 PASSED BY THE SPECIAL JUDGE, CBI CASES, JAIPUR IN SPECIAL CRIMINAL CASE NO. 12/1997. Date: 01/07/2008 HON'BLE MR. JUSTICE K.S. RATHORE Mr. R.N. Khandelwal for the accused-appellant. Mr. S.P. Tyagi, Special Public Prosecutor for the respondent CBI. *** REPORTABLE On 30.05.2008, the matter was listed on the stay application filed on behalf of the accused-appellant for staying the conviction/ judgment dated 29.11.2007 passed by the Special Judge, CBI Cases, Jaipur in Special Criminal Case No. 12/1997, by which the accused-appellant has been convicted under Section 13(1)(E) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 15,000/-, in default of payment of fine, to further undergo rigorous imprisonment for six months. An amount of Rs. 2,37,545/- was also ordered to be confiscated. [2] 2. On 20.05.2008, both the parties were agreed that the matter may be heard finally at this stage and on that date, learned counsel Mr. Tyagi, appearing for the respondent CBI prayed for some time to prepare and argue the case. Today the matter is listed for final arguments. 3. Learned counsel for the accused-appellant wishes to withdraw the stay application for staying the conviction/judgment dated 29.11.2007 passed by the Special Judge, CBI Cases, Jaipur. 4. Accordingly, the criminal misc. stay application stands rejected as withdrawn. 5. The present criminal appeal is directed against the judgment dated 29.11.2007 passed by the Special Judge, CBI Cases, Jaipur, by which the accused-appellant has been convicted under Section 13(1)(E) read with Section 13(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 15,000/-, in default of payment of fine, to further undergo rigorous imprisonment for six months. The Special Judge also ordered to confiscate the amount of Rs. 2,37,545/-. 6. Brief facts of the case are that on the basis of the source information, a case was [3] registered vide Ex.P/285 and the same is reproduced hereunder:- “It has been learnt from reliable source that Shri A.K. Thakur is a habitual corrupt public servant of the office of Income Tax, Jaipur. He joined Income Tax Department as LDC during 1969, was promoted as UDC during 1975 and promoted as Head Clerk during 1994. Shri Thakur while functioning as Public Servant in the said capacities had been abusing his official position and by corrupt and illegal means amassed huge assets which are disproportionate to his known sources of income and for which he has not satisfactory explanation. During the entire period of his service, his legitimate income has been only from the salary from his department. He has one son and one daughter, both are getting education in expensive schools at Jaipur. Shri Thakur has been leading luxurious life. His income, expenditure and assets have been computed as under:- I. Income (Rs.) (By way of salary from 1969 to 31.7.95) 4,60,000/- II. Expenditure (a) Household expenditure 2,30,000/- 50% of the income (taken on lower side) (b) Expenditure over education of children 40,000/- ----------- 2,70,000/- [4] III. Assets (a) House at F/237, Priyadarshani Marg, Shyam Nagar Extension, Jaipur. 8,00,000/- (b) Colour T.V. 10,000/- (c) Scooter 15,000/- (d) Car 1,25,000/- (e) Refrigerator 6,000/- (f) Furniture 25,000/- (g) Jewellery 60,000/- (h) Misc. Household articles 1,00,000/- (i) Bank deposits/LIC Policy/FDR 1,00,000/- ------------ 12,41,000/- Shri Thakur during the entire service period has amassed total assets of Rs. 12,41,000/- either in his own name or in the name of his family members are against his likely savings of Rs. 1,90,000/- (i.e. income Rs 4,60,000/-, expenditure Rs. 2,70,000/-). Thus, he has assets disproportionate to his known sources of income to the tune of Rs. 10,51,000/-, for which he has no satisfaction explanation. The aforesaid facts disclose commission of offences perpetrated by Shri AK Thakur, which are punishable u/s. 5(2) r/w 5(1)(e) of PC Act, 1947/ Sec. 13(2) r/w 13(1)(e) of PC Act, 1988. Hence, a regular case is registered and entrusted to Shri R.D. Kalia, Dy. SP, CBI, Jaipur for thorough probe.” 7. Raid was conducted by Shri R.D. Kalia, the then Deputy Superintendent of Police, Central [5] Bureau of Investigation, Jaipur and search of the complete house was made and Seizer Memo Ex.P1 was prepared. Thereafter investigation was conducted and after obtaining sanction from sanctioning authority, the charge-sheet was submitted in the Court of Special Judge, CBI Cases, Jaipur, whereby the CBI came to the conclusion that Rs. 10,51,000/- were disproportionate to his known sources of incomes. 8. The copies of the statements and documents were supplied to the accused-appellant and upon hearing the rival submissions of both the parties, the Court below framed charges in which the disproportionate property was observed as Rs. 7,63,783/-. On behalf of the prosecution, as many as 56 witnesses were examined and 332 documents were exhibited. Thereafter the statement of the accused-appellant was recorded under section 313 Cr.P.C. In defence 4 witnesses were examined and exhibited 8 documents. 9. The Special Judge, CBI Cases, Jaipur City, Jaipur after hearing the submissions of respective parties, vide its impugned judgment dated 29.11.2007, convicted and sentenced the accused- appellant as indicated herein above. 10. Being aggrieved and dissatisfied with the [6] impugned judgment dated 29.11.2007, the accused- appellant has preferred the instant criminal appeal on the ground that the judgment passed by the Special Judge is totally contradictory to the evidence available on record as except the Investigating Officer, none of the witness has supported the prosecution case. There is not a single witness who deposed that the financial position of the mother of the accused-appellant Smt. Lila Thakur and mother-in-law of the accused- appellant Smt. Sita Punjabi was not good and they were not in a financial position to support the accused financially and could not give the articles in question. 11. Further the prosecution while taking the income Rs. 7,52,704.41 has not considered the income of Sanjay, the son of the accused-appellant, as stated by PW50 Sanjay, DW1 Omprakash, DW2 Neelam and DW4 Brajesh and there is no cross-examination by the prosecution from the defence witnesses. So far as income from the sale of the house is concerned, the prosecution has taken only Rs. 49,245/- but the original amount invested and received by sale Rs. 61,755/- has not been considered, whereas most of the witnesses have stated that house was sold for Rs. 1,11,000/- including the Investigating Officer. [7] 12. So far as the articles given by Smt. Lila Thakur in gift; (1) Scooter, concerning documents are Ex.P246 and 247 and PW30 who had sold the scooter, he has categorically stated that the payment was made by Lila Thakur; (2) Fridge, the concerned documents are Ex.P259 to 262 and witnesses PW38 Rupendra has stated that the amount was received by cheque from the account of Lila Thakur; (3) Vacuum Cleaner, the concerned documents are Ex.P283 and 284 and in this regard PW54 R.D. Mathur has deposited that the amount was paid by Lila Thakur; (4) With regard to Gas Cylinder, the prosecution has not examined any witness to prove that the amount was paid by the accused for purchase of the Gas Cylinder, whereas PW8, PW9, PW12, PW42, PW43, PW50 and DW2 have categorically stated that the above items were purchased by Smt. Lila Thakur and had given in gift either to the accused-appellant or to his children. 13. It has been further contended that the Special Judge has drawn inference only on the basis of surmises and conjectures stating that the financial position of the mother was not good. The Special Judge in this connection has misread the evidence of Smt. Lila Thakur, in which she has stated that “मैं बडे लडके पर आिौत हं।ू" 14. At the time of search, mother-in-law of [8] the accused-appellant Smt. Sita Punjabi had claimed that the amount of Rs. 2,40,000/- belongs to her but the Search Officer malafidely did not mention this fact in the search memo, but in the cross- examination PW56 Shri R.D. Kalia has admitted that "मुिल् जम की सास ने कुछ नकद रािश अपनी होना बतायी थी।" 15. PW1 Sudeep Banerjee, the Motbir of the search, in his cross-examination has stated that “अिभयुक् त की सास ने यह रािश अपनी बतायी हो यह बात ध् यान नहीं है।" He has not denied. 16. Further PW4 R.L. Aheer, the another Motbir of the search has stated that “अगर मुिल् जम की सास ने रूपया अपनी होने की बात कही हो तो मुझे याद नहीं।" He has also not denied. 17. PW8 Lila Thakur, the mother of the accused-appellant, PW43 Kavita Thakur, the wife of the accused-appellant and PW50 Sanjay Thankur, who were present at the time of search, have also stated that mother-in-law of the accused-appellant had told the Search Officer that the amount belongs to her. 18. As per the evidence of PW8 Lila Thakur, PW7 Sita Punjabi, PW12 Deepak Thakur, PW22 Chuhar Mal Punjabi, the brother of Sita Punjabi, PW23 [9] Ashok Makhija, the son of the sister of Sita Punjabi, PW42 Mohini Bambani, the sister of the accused-appellant, PW43 Kavita Thakur, the wife of the accused-appellant, PW46 Harbans Singh Bhatia, PW50 Sanjay Thakur, DW2 Neelam Harjani and DW3 Prakash Makhija, they have categorically stated and admitted that she had brought about Rs. 5,00,000/- in cash when she came from Jodhpur. 19. Further the mother-in-law of the accused- appellant Smt. Sita Punjabi had given (1) Music System, (2) Motor Cycle, (3) Car, (4) Carpet, (5) Double Bed, (6) Television, (7) Deck, (8) Jhula and (9) Cooler and these items were purchased from her own money and given to the family of the accused- appellant in gift. 20. So far as Music System is concerned, Ex.P263 and 266 stand in the name of Sita Punjabi and PW23 Sanjay Periwal has stated that the amount was paid by Smt. Sita Punjabi through cheque. The another item is Motorcycle and the concerned documents are Ex.P281 and 282 which also stand in her name and PW53 Deepak Shrivastava has stated that the amount for the aforesaid item was paid by Smt. Sita Punjabi through cheque. 21. With regard to other items, PW8 Lila Thakur, PW9 Sita Punjabi herself, PW12 Deepak [10] Thakur, PW22 Chuhar Mal Punjabi, PW23 Ashok Makhija, PW42 Mohini Bambani, PW43 Kavita Thakur, PW50 Sanjay Thakur, DW2 Neelam Harjani and DW3 Prakash Makhija have categorically stated that these items were purchased by Smt. Sita Punjabi and given to the family members of the accused- appellant in gift. There is not a single witness from the prosecution side to controvert the fact that for purchasing these items, the accused- appellant paid the amount. Therefore, the amount of Rs. 1,45,538/- towards these items cannot be included in the assets of the accused-appellant. 22. The other contention that the cost of items has been taken by the Search Officer to the higher side and the difference of price claimed by the accused-appellant comes to Rs. 72,375/-, it may be stated that no witness including the Investigating Officer PW56 Shri R.D. Kalia has stated that the price mentioned by him at the time of search was given by the accused-appellant or by his any family member, rather the evidence of the prosecution is contradictory. PW1 Sudeep Banerjee, the Motbir of the search has stated that “मुिल् जम को कीमत का मालूम नहीं था।" He further stated that “कीमतों के सम् बन् ध में गवाहों से कुछ नहीं पूछा गया, हम तो केवल देख रहे थे, इसमें एिक् टव पािटर्िसपेशन नहीं िकया था।" 23. PW4 R.L. Aheer has admitted that “जो आइटम [11] वहां पर िमले उन सभी आइटमों की कीमतें, मैं नहीं जानता था, घरेलू छोटे मोटे सामान की कीमतें सीबीआई वालों ने अपने आप लगायी थीं।" 24. From the evidence of PW8 Lila Thakur, PW9 Sita Punjabi, the accused-appellant himself and the Investigating Officer in the cross-examination, it was brought on record that price of certain articles was taken on presumption basis to the higher side and when he was confronted with their bills, he admitted that the price taken in the search memo was in excess and he had admitted that “सूची में चीजों की जो कीमत िलखी वह कुछ की अनुमान के आधार पर िलखी है।" 25. He further stated that “जो दोनों गवाह वह सम् पित की कीमत के िवशेषज्ञ नहीं हैं।" He has nowhere stated that the prices were given by the accused-appellant. The Investigating Officer has admitted that the prices were taken on approximation basis and thus, there is no reason to disbelieve the contention of the accused-appellant that the prices were taken to the higher side. 26. As regards education of the children, most of the expenditure was being borne by the mother- in-law of the accused-appellant. Even PW3 Sudhir Kumar Singh, Director, Saint Admandus School, Jawahar Nagar has deposed that “तीनों बच् चों की फीस जमा [12] कराने अशोक ठाकुर की सास आती थी।" 27. So far as Rs. 3,000/- are concerned, Rs. 1,677/- were not paid till the search was made and was to be paid to M/s Asha Neeta PCO Services and for the remaining amount of Rs. 1,323/- , there is statement of PW18 Moan Kumar, who has categorically admitted that "कान् ृेिन् संग ए. के. ठाकुर के यहां से इनकी सास जोधपुर के िलये करती थी, क् योंिक वह एसटीडी पर आ नहीं सकती थी।" He further admitted that “ यह सही है िक अगः त 95 तक 1677.43 पैसा ए.के. ठाकुर की ओर बकाया थे।" 28. Thus, the remaining amount of Rs. 1,323/- which was being done by the mother-in-law to her relations at Jodhpur and as such this amount was being spend by the mother-in-law of the accused- appellant and this amount cannot be added in the expenditures of the accused-appellant. 29. So far as amount spent for purchasing 6 pieces of diamond worth Rs. 1,650/- is concerned, there is statement of PW6 Madhav Kalra, who has categorically stated that "मुिल् जम ए.के. ठाकुर को मैं नहीं जानता। जहां मुझे याद है इस मामले के िलये दो औरतें आई थी। पैसे दो औरतों में से बडी औरत ने िदये।" 30. There is no evidence of the prosecution to say that this amount was paid by the accused- [13] appellant and as such, the same cannot be included in the assets of the accused-appellant. 31. Further so far as amount of Rs. 8,134/- is concerned, the said amount pertains to the insurance premium paid on Bajaj Scooter and Fiat Car. The amount of Rs. 178//- comes to the insurance premium of the Scooter. This amount was borne by the accused-appellant, but as regards remaining amount of Rs. 7,956/-, the same is the premium of Fiat Car which was purchased by the mother-in-law of the accused-appellant out of her own funds and this amount cannot be included in the expenditures of the accused-appellant. 32. The another aspect relied upon is recovery of one bottle of IMF liquor, by which the Special Judge has presumed that the standard of living was high, but the Special Judge has totally ignored the evidence available on the record. By bare reading of the evidence of PW12 Deepak Thakur, it seems that there is typographical error as in the earlier cross-examination he has admitted that “रहन-सहन सामान् य नौकरी पेशा लोगों का होता है, ऐसा था, खचȸला नहीं था।" 33. Further this witness himself made it clear that "मेरे जीजाजी क् लास वन आिफ सर थे । वे शराब पीते थे। िवदेश में हमारे िरँ तेदार रहते हैं। वे जब भी आते थे, वे मुिल् जम को िगफ्ट देकर जाते थे।" [14] 34. The Special Judge has ignored the statement of PW9 Sita Punjabi, who has categorically stated that “अशोक ठाकुर के यहां शराब िमली, उसकी बहन के आदमी आते थे, वे लेकर आते थे।" 35. PW8 Lila Thakur has also stated that “अशोक के शराब बोतल िनकली वह मेरे जंवाईजी आिफ सर थे, वे दसरे जंवाई जो ू ऐ.जी. आिफ स में थे, अनके िलये वह लेकर आते थे, वह िमली थी।" 36. PW42 Smt. Mohini Bambani has also stated that "अशोक ठाकुर के गलत शौक दारू पीने व मीट खाने का नहीं था।" DW1 Omprakash also stated that "मुिल् जम शराब नहीं पीता।" As per DW2 Neelam Harjani "शराब पीने खचार् करने का शौकीन नहीं था।" 37. As per the accused-appellant the prosecution has taken the disproportionate income from the known sources to the tune of Rs. 7,52,704/- and he submitted his explanation as under:- i) The prosecution taken the income 7,52,704.00 ii) Income of Sanjay from tuition and other income not considered by the prosecution in spite of the prosecution evidence 24,500.00 iii) Sale price of the house of Jawahar Nagar. The prosecution has considered only Rs. 49,024.50 while the balance of Rs. 61,975.50 was also to be included in the [15] income because the investment in Shyam Nagar property has been taken full investment. 61,975.00 The double expenditure of property cannot be taken. 8,39,179.00 ------------- 16,88,002.66 iv) So far assets and expenditure is concerned, the prosecution in the charge-sheet has taken out of these at the stage of charge. The Special Judge deducted the cost of Rs. 8,39,500/- and has been taken only Rs. 3,45,000/- The price of the house deducted (-) 8,39,500.00 --------------- 7,49,502.66 Cost of the house taken (+)3,45,000.00 ------------ Thus value of the assets 11,39,502.66 Expenditure the prosecution has taken Rs. 4,28,581.01 but at the stage of charge Rs. 2,85,721/- were taken and those comes (-) 4,28,581.01 ----------- 7,10,921.65 The added expenditure (+) 2,85,721.00 ----------- 9,96,642.65 Out of these there is overwhelming evidence of the prosecution that cash found at the house belongs to mother-in-law and that is to be deducted (-) 2,40,460.00 Items of mother-in-law There is overwhelming evidence that these items were brought by her when she shifted from Jodhpur to Jaipur. (-) 1,42,093.00 ------------ 6,14,089.65 Items given by mother [16] There is overwhelming evidence of the prosecution valued (-) 3,92,219.00 Now remains Rs. 5,74,870.65 Investment in computer business. This amount was taken by Sanjay as loan (-)20,500.00 --------- Rs. 5,54,370.65 Gifts received from the mother-in-law and other relative. There is overwhelming evidence to this effect (-) 4,37,045.65 Difference of price There is no contradiction in the prosecution evidence and the evidence in favour of the accused. Almost all the witnesses have proved it (-) 72,304.00 ----------- Remains 3,58,741.65 38. Thus, the income of the accused to Rs. 8,39,179.00, while the assets and expenditures against the accused comes to only Rs. 3,58,741.65 and these are to be explained by the accused- appellant. 39. In this way, in view of Rs 8,32,679.50, the assets and expenditure to the account of the accused is their. 40. Though, the concerning witnesses have stated that mother-in-law was spending on the education of the children and was incurring [17] expenses of the kitchen. There is not a single witness of the prosecution to contradict the same. Thus, looking from any angle, no case of disproportionate assets is made out against the accused-appellant. 41. On the other hand, learned counsel Mr. Tyagi, Special Public Prosecutor appearing for the CBI controverted the submissions made by the learned counsel for the appellant and contended that looking to the facts and circumstances of the case and as per the material available on the record, the accused-appellant has rightly been convicted and sentenced by the Special Judge vide impugned judgment dated 29.11.2007. 42. I have heard learned counsel for the accused-appellant, learned Special Public Prosecutor appearing for the CBI and have also gone through the impugned judgment dated 29.11.2007 as well as the entire material available on the record. 43. The Hon'ble Supreme Court in the case of Krishnanand Agnihotri Vs. State of M.P., reported in AIR 1977 SC 796, has held that it is not enough merely to show circumstances which might create suspicion, because the court cannot decide on the basis of suspicion. It has to act on legal grounds [18] established by evidence. 44. Reliance on the aforesaid judgment has been placed by the learned counsel to show that income of the mother-in-law of the accused- appellant was not segregated from the assets of the accused-appellant and on the basis of the suspicion, assets of the mother-in-law of the accused-appellant have been added in the assets of the accused-appellant. 45. Further in the case of DSP, Chennai Vs. K. Inbasagaran, reported in (2006)1 SCC 420, the Hon'ble Supreme Court has held that the initial burden was on the prosecution to establish whether the accused had acquired the property disproportionate to his known source of income or not. In this case the prosecution has tried to establish that all the monies belonged to the accused and after taking sanction, prosecution was launched against the accused. At the same time, the accused has to account for the money in his hand satisfactorily and satisfy the court that his explanation was worthy of acceptance. In this case, the accused-respondent has explained the possession of the unaccounted money. 46. It has been further observed that when the accused has provided satisfactory explanation that all the money belonged to his wife and she has [19] owned it and the Income Tax Department has assessed it in her hand, then, in that case, whether he could be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe that this can be read in the hands of the husband or as the case may be, it cannot be fastened on the husband or the head of the family. It is true that the prosecution in the present case has tried its best to lead evidence to show that all these monies 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 returns and she has accepted the whole responsibility, 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 the wealth belonged to the husband and how much belonged to the wife. 47. In the instant case, the mother-in-law is admittedly living with the accused-appellant and it is also admitted that her husband died and she brought all assets with her. It is also not disputed that no separate seizure memo was prepared by the prosecution so far as belonging of the mother-in-law of the accused-appellants are [20] concerned and, therefore, it is very difficult to segregate that how much of the assets belonged to mother-in-law and how much belonged to the accused- appellant, as held by the Hon'ble Supreme Court in the case of DSP, Chennai Vs. K. Inbasagaran (supra). 48. The Andhra Pradesh High Court in the case of M. Sreeramulu Vs. State of A.P., reported in 2003 Cri. L.J. 2956, while dealing with Section 13 of the Prevention of Corruption Act has observed that “Case relating to alleged disproportionate assets- Prosecution has to establish that the various items which it attributes to the public servant are held by him directly or even indirectly- Items included in list of assets- Ownership in respect of these items accepted by prosecution on the basis of certain assumptions- Even the Investigating Officer was not sure about the ownership of the appellant vis-a-vis the said items- Appellant did not hold any assets disproportionate to his known sources of income- Conviction liable to be set aside. 49. Here in the instant case also, even at the time of search the mother-in-law of the accused- appellant has categorically stated that the money which was recovered from the Almirah belongs to