Mr. I.A. Ansari V. Hindustan Fertilizer Corporation Ltd

Crl.A./9/2010

AI Insights

The case revolves around the appellant, who was convicted by the Special Judge, CBI, Assam, for amassing assets disproportionate to his known sources of income during his tenure as a manager at Hindustan Fertilizer Corporation Ltd from 1969 to 1994. The prosecution alleged that the appellant's income from all known sources amounted to Rs. 12,67,035, while he amassed assets worth Rs. 7,40,641, excluding expenses. The trial involved extensive examination of financial records, property valuations, and testimonies from numerous witnesses. The appellant denied the charges, and the defense presented evidence to counter the prosecution's claims. The appeal to the High Court highlighted several procedural and evidential shortcomings in the prosecution's case, leading to the appellant's acquittal.

• Counselvise Citation: [2010] 140 COUNSELVISE.COM (IT) 698299 (HC-ASSAM GUWAHATI)
• Appeal Type: Others
• Pronouncement Date: 16-01-2010
• Assessment Year: misc
• Laws Referred To: Prevention of Corruption Act, 1988
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: P N CHOUDHURY
• Assessee Lawyers: A C BORBORA; P KATAKI
• Keywords: Corruption; Disproportionate assets; Public servant; Known sources of income
• Section: 13(2); 13(1)(e)

Judgement Text

"Crl.A. 9/2010 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI This is an appeal against the judgment and order, dated 16.01.2010, passed, in S pecial Case No. 42 of 2004, by the learned Special Judge, Central Bureau of Inve stigation (in short, CBI), Assam, Guwahati, convicting the accused-appellant und er Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (in short, ’the PC Act’), and sentencing him to undergo simple imprisonmen t for a period of three years with fine of Rs.5,00,000/- and, in default of paym ent of fine, undergo simple imprisonment for a further period of 1 ‰ years. 2. The case of the prosecution may, in brief, be described as under: (i) Superintendent of Police, CBI (Anti-Corruption), Guwahati, lodged an Eja har, on 18.02.97, alleging, inter alia, that while appellant had been working as Manager, Hindustan Fertilizer Corporation Ltd (hereinafter referred to as, ’the HFCL’), from the year 1969 to 1994, he had amassed assets disproportionate to h is known source of income and, in this regard, it was alleged that though income of the appellant, from all known sources, during his service career, was Rs,12, 67,035/-, he was found to have amassed assets to the tune of Rs.7,40,641/- upon excluding expenses, which he might have had incurred. Treating the said Ejahar a s First Information Report (in short, FIR), RC No.4(A)/97 SHG came to be registe red under Section 13(2) read with Section 13(I)(e) of the PC Act. The Investigat ing Officer, on completion of investigation, laid charge sheet under the said pe nal provisions. (ii) During the course of investigation, appellant’s house was searched and m any documents, such as, passbook, cheque book, fixed deposits and insurance poli cies were seized. In terms of the charge sheet, the period, which had fallen for scrutiny of the appellant’s assets, started from 01.01.1981 to 18.03.1997 and t hough the said period started with a small sum of Rs.14,621/-, it ended, in term s of the statement furnished to the charge sheet, with a sum of Rs.33,78,054.24/ -, which included the value of one RCC three storied building valued at Rs.16,91 ,813/-. According to statement C, the detail income and other receipts, during t he check period, was Rs.23,96,553.16/-. According to the statement D, attached t o the charge sheet, the expenditure, during the check period, was Rs.9,95,526,31 /-. The investigating officer concluded that value of the total assets, found to be disproportionate to the known sources of income of the appellant, was Rs.19, 63,106.39/-. 3. At the trial, when a charge, under Sections 13(2) read with Section 13(I ) (e) of the PC Act, was framed, the appellant pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 50 witnesses. The accused was, then, examined under Section 313 Cr.PC and, in his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that the ac cused never possessed any asset disproportionate to his known sources of income. In support of its case, defence, too, examined six witnesses including the appe llant. 5. Having, however, found the accused-appellant guilty of the offence, whic h he stood charged with, the learned trial Court convicted him accordingly and p assed sentence against him as mentioned above. Aggrieved by his conviction and t he sentence passed against him, the accused, as a convicted person, has preferre d this appeal. 6. I have heard Mr. A. C. Borbora, learned Senior counsel, assisted by Mr. P. Kataki, learned counsel, for the appellant, and Mr. P.N. Choudhury, learned S tanding Counsel, CBI. 7. Upon hearing the learned counsel for the parties concerned and perusal o f the materials on record, what attracts the attention of this Court, most promi nently, is that in the case at hand, the informant, namely, Superintendent of Po lice, CBI, Guwahati, was not examined at the trial, though the informant was no t merely a formal witness inasmuch as he had, as the evidence on record disclose s, not accepted the initial valuation, which had been submitted to him and direc ted valuation to be made afresh by taking the year 1965 as the base year. Why th e valuation was not accepted, it has not been answered by the prosecution nor is there any explanation discernible, in this regard, from the evidence on record. It is also of some significance to note that PW5, who was Executive Engineer of CPWD, has deposed, in his cross-examination, that he had been instructed by the Superintendent, CBI, that the year of construction should be taken as 1965, 198 6 and 1992 and he had accordingly taken the cost index as per the CPWD Schedule of the year 1965, 1986 and 1992. Why the base years were fixed at 1965, 1986 and 1982 have also not been answered by the prosecution nor is there any explanatio n available from the evidence on record in this regard. The ramifications, as Mr . Borbora, learned Senior counsel, has rightly pointed out, was too obvious inas much as the cost assessment difference between the first valuation and the secon d one was as much as Rupees Eleven lakhs. 8. PW5 has deposed that while working as an Executive Engineer in CPWd, he was engaged by the SP, CBI, to do valuation of the land and building of the land of the appellant and, accordingly, he submitted a valuation report, but not bei ng satisfied with the valuation report, so submitted, the SP, CBI, instructed hi m to make re-assessment as indicated above. 9. In the circumstances indicated above, non-examination of the SP, CBI, wa s a fatal omission and it is tantamount to withholding a material witness so tha t the explanation, which he owed as to why he had not accepted the valuation rep ort (Ext.23), remains unanswered. 10. Coupled with the above, the learned trial Court has relied upon the valu ation report submitted by PW5. It is, in this regard, noteworthy that in terms o f the CPWD Manual vis-à-vis Assam Public Works Department’s Schedule, rates of c onstruction of a building are different and, in terms of the CPWD Manual, the co st price is higher in the schedule of the Assam Public Works Department. Why the valuation was done in terms of the CPWD Manual and not in terms of APWD Schedul e of rates of construction remains unknown and unanswered. 11. The learned trial Court has disbelieved the evidence given with regard t o the valuation of the immovable property of the appellant by DW4. The reason as signed for not believing DW4 is that he is a neighbour of the appellant and, the refore, an interested witness. There is not even an iota of evidence to show tha t DW4 was an interested witness. Merely because of the fact that DW4 happened to be a neighbour, his evidence could not have been discarded by terming him as an interested witness without any convincing reason having assigned therefor. Ther e is nothing in law that a prosecution witness’s evidence has to be rated higher than the evidence of a defence witness. All witnesses, under the law, stand on the same footing and, it is their intrinsic value, which shall determine the out come of the trial and not the fact whether the witness has been produced by the prosecution or by the defence. 12. Situated thus, it is clear that there are two valuation reports with reg ard to the immovable properties of the appellant and, in such circumstances, the learned trial Court ought to have either got the valuation assessed afresh or r ely on the valuation report, which supported the case of the defence, particular ly, when, as already indicated hereinbefore, there is no material to show that t he evidence of DW4 is the evidence of an interested witness. 13. Moreover, it has not been disputed, at the trial, that the appellant pur chased land, in the year 1981, on payment of consideration of Rs.1,20,000/-. It has also not been in dispute that at the time, when the appellant purchased the land, ground floor was already constructed, the first floor had its roof complet e and the second floor columns stood erected. Since the amount of consideration paid by the appellant was never disputed, the land and house, standing thereon, could not have been assessed at a value higher than Rs.1,20,000/- as on the date of purchase. 14. In the circumstances, indicated above, it becomes clear that apart from the fact that prosecution had failed to explain as to why 1965 was opted to be m ade as the base year for assessment of the constructional value of the appellant ’s immovable property, it also becomes clear that 1965 could not have been made as the base year for construction inasmuch as valuation of the property, when pu rchased by the appellant, was Rs.1,20,000/-. Similarly, why the year 1986 or 199 2 were selected as base years for making the assessment by the SP, CBI, remains a mystery. Over and above these factors, why valuation was made on the basis of the CPWD Manual and not on the basis of APWD schedule of rates has also not been addressed by the learned trial Court. 15. What can also not be ignored is that the appellant produced a register, which, according to the appellant, contained the day-to-day expenses, which he h ad incurred during the course of construction of the building. The entries in th e register have been totally discarded by the learned trial Court despite the fa ct that prosecution, nowhere, challenged the correctness of the entries as conco cted or falsified. Further-more, the valuation, submitted by PW5, could not have been implicitly relied upon by the learned trial Court in the face of the disqu ieting features, which have been pointed out above, and it was, in such circumst ances, the duty of the learned trial Court to make its own assessment in the fac ts and attending circumstances of the case. 16. Statement A contained the computation of the assets of the appellant pur chased during the beginning of the check period. The learned trial Court also fa iled, as has been rightly pointed out on behalf of the appellant, in computing t he assets reflected in statement A, B, C and D, which read as under: Statement A i.e., the assets in the beginning of the check period: i) The total salary income from 20.11.61 to 3.5.69 vide Ext. M-1 and M-2 an d Petitioner-8 is Rs.38,060.79/-. ii) Salary from FCI/HFC from May, 69, to December, 81, is Rs.1,27,998.23. iii) The P.F. loan received is Rs.8,472.52/- as on 4.1.79. iv) Conveyance and advances Rs.15,000/- on 20.08.79. v) Income tax refund Rs. 170/ -Ext.X. vi) The house inventory prepared vide Ext. 126. It may be pointed out that vide Serial No.1, 2, 4, 12, 13, 14, 15, 77, 37, 53, 55 and 64 were obtained before ch eck period. The total value of Rs.38,250/-. vii) As per return from assessment year 1981-82 vide Ext. Y-Y1, Rs.25,000/- was available for investment in building. viii) Value of immovable property as per Ext.U Rs.8000/- The total sum under the statement A comes to Rs.21,721.00 + Rs.2,05,598.74 = Rs . 2,27,319.79/- Statement B i.e. the assets at the end of the check period. The learned Court below failed to take into consideration of the following amou nt:- i) Value of the house property as per sale deed vide Ext.E is Rs.1,20,000/-. The total expenses for construction of first floor completed in the year 1983 and t he second floor completed in the year 1992. The expenses are mentioned vide Ext. AF of Rs.4,700,15.61/- and total comes to Rs.5,90,015.61/-. As per Ext.23-24, th e value of the property is shown at Rs.16,91,813/-. So it is exceeded by Rs.11,0 1,797.39/-. ii) That the appellant got married on 19.01.1977 and he received many bridal gif ts including furniture and the same has been received before the check period an d which ha been wrongly assessed during the check period. The items were mention ed in Serial No.8, 31, 45, 56, 67, 68, 69, 76, 77 to 83, 84, 88, 89. The total i s Rs.84,750/-. Thus, the total assets in the check period ought to have been Rs. 21,80,862.24. C - The statements shown income and received during check period. i) Provident Fund withdrawal vide Ext.AC as deposed by DW6 is Rs.40,000/-. ii) Income Tax Refund vide Ext. AJ/1, AJ/2 and AJ/3 of Rs.6757/-. iii) Medical claim refund vide Ext.AN-250/14 of Rs.10,700/-. iv) Subsidy received from District Industrial Center, Guwahati, for running prin ting press vide Ext.G of Rs.65,556/-. v) Voluntary declaration of income of Arifa Ahmed in the year 1988-89 and 1995-9 6 of Rs.61,701/-. vi) The value of the certificates of encashment of Foreign Currency Traveller ch eque of Rs.1,09,650/- The total income will be Rs.24,96,489.35 + Rs.2,94,364/- ( Rs.40,000 + 10,700 _ 65,556 + 61,701 + 1,09,650) = Rs. 27,90,853.35/-. D. Expenditure Statement during check period. Computation 1. The assets at the end of the check period - Rs.21,80,861.85/-. 2. The assets at the beginning of the check period (A) - Rs. 2,27,319.74/-. 3. The assets acquired at the end of check period (B-A) Rs.19,53,542.11/-. 4. The added expenses D Rs. 8,20,138.73/- 5. Total assets and expenditure (B-A) + D - Rs.27,73,680.84/-. 6. Income during the check period - Rs.27,90,853.35/-. 7. Likely savings - Rs.11,17,251/. 17. In the backdrop of the fact that the prosecution could not convincingly prove the assessment of the valuation of the immovable and movable properties of the appellant, the learned trial Court could not have held that prosecution has succeeded in proving its case beyond reasonable doubt. 18. Section 13(1)(e) of the PC Act lays down that if a 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, of pecuniary resources or property disproport ionate to his known sources of income, which the public servant cannot satisfact orily account, then, the public servant or such person shall be punishable with imprisonment for a term, which shall not be less than one year, but may extend u p to seven years and shall also be liable to fine. 19. It needs to be remembered that it is the burden of the prosecution to pr ove that the person, accused of having been found in possession of assets dispro portionate to his known sources of income, is proved, beyond reasonable doubt, t o have been found in possession of property disproportionate to his known source s of income. It is on discharge of this initial burden that the burden shifts to the defence to satisfactorily account for the properties, which the accused is found to be in possession of. Unless the initial burden is discharged by the pro secution, an accused cannot be made liable nor can he be imposed the liability t o satisfactorily account for valuation of the assets, which are claimed to have been found to be in his possession. 20. In the case at hand, as can be clearly gathered, the prosecution could n ot adduce consistent, coherent, logical, convincing and unimpeachable evidence p roving beyond reasonable doubt that the appellant had been found in possession o f assets disproportionate to his known sources of income. In such circumstances, the burden could not have been taken to have shifted to the defence. 21. Inextricably connected with the above is the fact that the defence, as a lready indicated above, too, adduced evidence and its evidence ought to have bee n given the value, which it deserved. 22. Because of the infirmities with which suffered the findings of the learn ed trial Court, this Court is clearly of the view that in the facts and attendin g circumstances of the present case, the accused could not have been held to hav e been proved guilty of the charge, which had been framed against him. At any ra te, in the face of the indeterminate value of the assets of the appellant, the a ppellant was entitled to, at least, benefit of doubt. 23. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the appellant and the sentence passed against him by the judg ment and order, under appeal, are hereby set aside. The accused-appellant is hel d not guilty of the charge framed against him and he is acquitted of the same un der benefit of doubt. 24. The bail bond of the accused-appellant is cancelled and his sureties sta nd discharged. 25. With the above observations and directions, this appeal shall stand disp osed of. 26. Send back the LCR. "