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State of Madhya Pradesh through Lokayukt Office, Bhopal v/s Hemkaran Raj


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    Acquittal Appeal No. 63 of 2009

    Decided On, 25 January 2021

    At, High Court of Chhattisgarh

    By, THE HONOURABLE MR. JUSTICE SANJAY K. AGRAWAL

    For the Appellant: Ravi Bhagat, Dy.G.A. For the Respondent: Rajat Agrawal, Advocate.



Judgment Text

1. This acquittal appeal is directed against the judgment of acquittal dated 14.5.1999 passed by the Special Judge under the Prevention of corruption Act, 1988, Bilaspur in Special Case No.9/96 acquitting the respondent herein for offence under Section 13(1) (e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter called as 'PC Act') alleging that during check period from 1.8.1980 to 10.10.1990 while working as public servant on the post of Executive Engineer, Public Works Department he amassed Rs. 9,77,816/­ (morethan his known source of income) and thereby committed the aforesaid offence.2. The appellant/State filed the charge­sheet against the respondent herein for commission of offence under Section 13(1)(e) read with Section 13(2) of the PC Act stating that he has committed the aforesaid offences as he has amassed Rs. 9,77,816/­during the check period while working as Executive Engineer in Public Works Department.3. The respondent abjured the guilt and entered into defence. The prosecution examined as many as 32 witnesses and exhibited documents Exs.P­1 to P­158. In defence, the respondent examined himself and three other witnesses in his support.4. Learned Special Judge after full­fledged trial acquitted the respondent herein from the aforesaid charges holding that the State has failed to prove the offences under Section 13(1)(e) read with Section 13(2) of the PC Act beyond reasonable doubt and the respondent is entitled for benefit of doubt, against which, this acquittal appeal has been preferred.5. Mr.Ravi Bhagat, learned Deputy Government Advocate for the appellant/State, would submit that learned Special Judge committed illegality in holding that the respondent has not amassed Rs. 9,77,886/­ (morethan his known source of income) as it has been proved by the State and the respondent has failed to satisfactorily account of the pecuniary sources of property which was disproportionate to known source of income, as such, the judgment of acquittal deserves to be set aside.6. On the other hand, Mr.Rajat Agrawal, learned counsel for the respondent would support the impugned judgment and submit that leaned Special Judge after giving its elaborate reason in well merited judgment acquitted the respondent from the aforesaid offences, which cannot be said to be passed on perverse ground and no interference is warranted in this acquittal appeal.7. I have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.8. The respondent has been acquitted for offences under Section 13(1)(e) read with Section 13(2) of the PC Act.9. In order to consider the plea raised at the Bar, it would be appropriate to notice unamended Section 13 (1) (e) of the PC Act, 1988 (amended w.e.f. 26.7.2018) which states as under:­“13. Criminal misconduct by a public servant.­(1) A public servant is said to commit the offence of criminal misconduct,­(a) to (c) xxx xxx xxx(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 sources of income.Explanation.­ For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.”10. In order to prove the charge under Section 13(1) (e) of the PC Act, 1988, the prosecution must prove the following ingredients, namely (1) the prosecution must prove that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which are found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution, (4) it must prove quite objectively that the resources or property found in possession of the accused were disproportionate to his known source of income. Once the above­mentioned ingredients are satisfactorily proved, the offence of criminal misconduct under Section 13(1)(e) of the PC Act, 1988 is complete, unless the accused is able to account for such resources or property and it is only thereafter the burden shifts to the accused to prove his innocence.11. The Supreme Court in the matter of State of Maharashtra v. Wasudeo Ramchandra Kaidalwar (AIR 1981 SC 1186) dealing with Section 5(1)(e) of the Prevention of Corruption Act, 1947 which is pari­materia to Section 13(1)(e) of the PC Act, 1988, has held that the accused having been found in possession of disproportionate assets, he is duty bound to account satisfactorily for such possession. It was observed as under:­“13.....To substantiate the charge, the prosecution must prove the following facts before it can bring a case under S. 5(1)(e); namely, (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under S. 5(1)(e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets.....”12. Similarly, in the matter of M. Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad (AIR 1993 SC 313), Their Lordships of the Supreme Court again analyzing the provisions contained in Section 5(1) (e) of the Prevention of Corruption Act, 1947 (pari­materia provision to Section 13(1)(e) of the Act of 1988) held that it is not the mere acquisition of property that constitute an offence under the provisions of the Act but it is the failure of accused to satisfactorily account for such possession that makes the possession objectionable as offending the law. Their Lordship further held that only after the prosecution has proved the required ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts to the accused. It was observed as under:­“6. An analysis of Section 5(1)(e) of the Act, 1947 which corresponds to S. 13(1)(e) of the new Act of 1988 shows that (it) is not the mere acquisition of property that constitutes an offence under the provisions of the Act but it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending the law.7. To substantiate a charge under S.5(1)(e) of the Act, the prosecution must prove the following ingredients, namely, (1) the prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession (3) it must be proved as to what were his known sources of income, i.e. known to the prosecution and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once the above ingredients are satisfactorily established, the offence of criminal misconduct under Section 5(1)(e) is complete, unless the accused is able to account for such resources or property. In other words, only after the prosecution has proved the required ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts to the accused.”13. The Supreme Court in the matter of K. Veeraswami v. Union of India and others (1991 (3) SCC 655) with reference to Section 5(1) (e) of the PC Act, 1947 observed as under:­"Clause (e) creates a statutory offence which must be proved by the prosecution. It is for the prosecution to prove that the accused or any person on his behalf, has been in possession of pecuniary resources or property disproportionate to his known sources of income. When that onus is discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionality of the properties possessed by him. The Section makes available statutory defence which must be proved by the accused. It is a restricted defence that is accorded to the accused to account for the disproportionality of the assets over the income. But the legal burden of proof placed on the accused is not so onerous as that of the prosecution. However, it is just not throwing some doubt on the prosecution version. The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily". That means the accused has to satisfy the court that that his explanation is worthy of acceptance. The burden of proof placed on the accused is an evidential burden though not a persuasive burden. The accused, however, could discharge that burden of proof "on the balance of probabilities" either from the evidence of the prosecution and/or evidence from the defence.(emphasis added)”14. In the matter of State of Maharashtra and others v. Ishwar Piraji Kalpatri and others (AIR 1996 SC 722) the Supreme Court following the principle of law laid down in K. Veeraswami (supra) has held that the opportunity which is to be afforded to the delinquent officer under Section 5(1)(e) of satisfactorily explaining about his assets and resources is before the Court when the trial commences and not at an earlier stage. It was observed as under:­“15. In our opinion, there is a complete misreading of the aforesaid provision by the High Court. It is no doubt true that a satisfactory explanations was required to be given by the Delinquent Officer. But this opportunity is only to be given during the course of the trial. It is no doubt true that evidence, had to be gathered and a prima facie opinion formed that the provisions of Section 5(1)(e) of the Act are attracted before a first information report was lodged. During the course of gathering of the material, it does happen that the officer concerned or other person may be questioned or other queries made. For the formation of a prima facie opinion that an officer may be guilty of criminal misconduct leading to filing of the First Information Report. There is no provision in law or otherwise which makes it obligatory of an opportunity of being heard to be given to a person against whom the report is to be lodged. That such satisfactory account had to be rendered before a Court is also borne out from the judgment of this Court in Veerswami' case (supra).16. The aforesaid passage leaves no manner of doubt that the opportunity which is to be afforded to the delinquent officer under Section 5(1) (e) of the Act of satisfactorily explaining about his assets and resources is before the Court when the trial commences and not at an earlier stage. The conclusion arrived at by the learned Single Judge that principles of natural justice had been violated, as no opportunity was given before the registration of the case is clearly unwarranted and contrary to the aforesaid observations of this Court in K. Veeraswami's case (supra)”15. The Madhya Pradesh High Court in the matter of Permanand Kedar Natha Jha v. State of M.P. (2000(1) M.P.L.J. 360) has held that investigative trial before filing chargesheet and after completion of investigation not contemplated by any provision in law and also also held that there is no provision in law, or otherwise which makes it obligatory for an opportunity of being heard to be given to the person against whom the report is to be lodged. It was observed as under:­“9. In these judgments the Court was nowhere faced with the question whether an investigative trial before filing the charge­sheet and after completion of the investigation is called for on the part of investigating officer. In our case the investigations are completed and challan has been filed showing the extent of properties being beyond the known sources of income and in the face of the explanation of the wife of the accused that only accused could explain about her acquisition. The trial Court, in rejecting the objection of the petitioner on the point of need of prior notice prior to filing of challan, relied upon the observation of the Supreme Court in AIR 1996 SCW 15 where the Court observed that it was no doubt true that a satisfactory explanation was required to be given by the delinquent officer, but, this opportunity is only to be given during the course of trial. It was also no doubt true that evidence had to be gathered and prima facie opinion formed whether the provisions of section 5(1)(e) of the Act (old Act) are attracted before the first information report was lodged. During the course of gathering of the material it does happen that the officer concerned or other person may be questioned or other queries made for the formation of guilty criminal misconduct leading to filing of first information report. There is no provision in law or otherwise which makes it obligatory for an opportunity of being heard to be given to the person against whom the report is to be lodged. The said satisfactory account is to be rendered before the Court. The same result was reached by the Supreme Court in case of Veera Swami cited at 1991 (3) SCC 655. The trial Court has observed regarding assets of the son of the accused and his sources of income that there is a vast difference between them also and similar about the wife of the accused on the basis of the material placed on record. So the Court said that the trial was necessary. The accused could give satisfactory account, in his evidence after the prosecution has discharged the initial burden of proof placed on them to prove the various ingredients of the offence. The accused could disprove by giving satisfactory account by evidence worth acceptance, the accused could discharge the burden which comes on him on the balance of probability either from the evidence of the prosecution or from the defence or both as was held in Veeraswami's case by the Supreme Court. So the trial Court has fully discussed the material placed before it and kept in mind the various guidelines laid down by the Supreme Court.”16. The Supreme Court in the matter of State of M.P. v. Awadh Kishore Gupta and others (AIR 2004 SC 517) has held as under:­“5. Section 13 deals with various situations when a public servant can be said to have committed criminal misconduct. Clause (e) of sub­section (1) of the Section is pressed into service against the accused. The same is applicable when the public servant 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 pecuniary resources or property disproportionate to his known sources of income. Clause (e) of sub­section (1) of S.13 corresponds to Cl. (e) of sub­section (1) of S.5 of the Prevention of Corruption Act, 1947 (referred to as 'Old Act'). But there has been drastical amendments. Under the new clause, the earlier concept of "known sources of income" has undergone a radical change. As per the explanation appended, the prosecution is relieved of the burden of investigating into "source of income" of an accused to a large extent, as it is stated in the explanation that "known sources of income" mean income received from any lawful source, the receipt of which has been intimated in accordance with the provisions of any law, rules orders for the time being applicable to a public servant. The expression "known sources of income" has reference to sources known to the prosecution after thorough investigation of the case. It is not, and cannot be contended that "known sources of income" means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106 of the Indian Evidence Act, 1872 (in short the 'Evidence Act').17. The phrase "known sources of income" in S.13(1)(e) (old S.5(1)(e)} has clearly the emphasis on the word "income". It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term "income" by itself, is elastic and has a wide connotation. Whatever comes in or is received, is income. But, however, wide the import and connotation of the term "income", it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investment, and having further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "income". Therefore, it can be said that, though "income" is receipt in the hand of its recipient, every receipt would not partake into the character of income. Qua the public servant, whatever return he gets of his service, will be the primary item of his income. Other incomes which can conceivably are income qua the public servant, will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime, or immoral secretions by persons prima facie would not be receipt from the "known sources of income" of a public servant.18. The Legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily" and the Legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance. ”19. Reverting to the facts of the present case in the light of legal position noticed hereinabove, it would appear that learned Special Judge has considered the case of the prosecution in the light of oral and documentary evidence available on record and reached to the conclusion in para­49 that the prosecution has failed to prove the nature and extent of the pecuniary recourses or property, which were found in possession of the respondent and further failed to prove as to what were his known sources of income i.e. known to the prosecution and therefore, burden could not be shifted to the accused to prove his innocence by satisfactorily accounting of his pecuniary recourses.20. Learned Special Judge held in para 49 as under:­“LANGUAGE”21. A careful perusal of aforesaid finding would show that learned Special Judge has clearly recorded a finding that the prosecution has not calculated the income of the responden

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t/accused prior to the check period and ornaments seized from possession of the respondent have not been valued properly and income & expenses during check period have not been filed and further held that the investigating officer has not disclosed the basis of income and expenses of the respondent, whereas firstly appointed investigating officer S.K.Verma (PW­29) has not supported the case of the prosecution and has clearly stated that the accused was not found in possession of disproportionate property as his income was in accordance with law and he was not declared hostile. It was also held that subsequently appointed investigating officer Ramesh Pandey (PW­31) has also not made any statement in regard to income and expenses of the respondent, as such, the prosecution has failed to establish the ingredient of offence under Section 13(1)(e) of the PC Act, therefore, burden could not be shifted to the accused, yet the respondent/accused has examined his wife Smt. Mrudula Raj as DW­1 to explain his income.22. Learned State Counsel took me through the statements of the prosecution witnesses in detail, but could not point out any perversity to contradict the aforesaid findings recorded by learned Special Judge in para­49, as such, I do not find any perversity or illegality in the findings recorded by learned Special Judge holding that the respondent was not found in possession of income disproportionate to his known source of income, which has not been satisfactorily accounted by the respondent herein. In fact, the appellant/State has failed to establish the ingredient of Section 13(1) (e) of the PC Act as noticed hereinabove and therefore, benefit of doubt has been extended by learned Special Judge to the respondent herein, which is neither perverse nor contrary to record. No illegality or perversity is pointed out by the State Counsel in the impugned judgment acquitting the respondent for offences under Section 13(1)(e) read with Section 13(2) of the PC Act.23. Concludingly, the acquittal appeal being without substance is liable to be and is hereby dismissed.
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