The essence of a benami is the intention of the party or parties concerned

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

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.

Bombay High Court

Rajendra Jonko vs The Superintendent Of on 25 November, 2011

Bench: R. C. Chavan

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. Nature of Asset In the Names Value Rs. Evidence Remarks No. of Ps
1. Debentures of Tata Munni+Nirmala 30000.00 PW-2 Chemicals +Rani+Nirmala Yashodhara Exs.23, 24
2. FDRs of Mazgaon Dock ? 10000.00 PW-12 Selvaraj M
Ex.80
3. FDRs of Stock 2FDs Nirmala, 12000.00 PW-7 3 Exchange Rani, Munni Coutinho persons Exs.49, 50 each
4. FDRs with Hindustan Rani+Nirmala 10000.00 PW-13 Construction Co. Munni+Nirmala Kavita Ltd. Exs.82, 83
5. Debentures with Rani & Nirmala 15000.00 PW-11 3x10x5 Mahindra & Mahindra Raghvachar i
Exs.64 to
68, 69, 73
6. CDRs of Indian Oil Nirmala 20000.00 PW-14 (only +Appellant, Vidyadhar 15000/- Munni+Nirmala, Exs.86 to ?) Rani+Nirmala 88
6 APEAL-270.01
7. FDRs of J.K. Nirmala & 12000.00 PW-1 Invest- Synthetic Rajendra Jonko Mahesh ment by Shah cheque.
Exs.17 to Source
21 not
traced.
8. FDRs with Hindustan Munni, Rani, 20000.00 PW-6 4 FDs Petroleum Nirmala, Salunke each in Gunjan Exs.44-47 name of (daughter) three persons
Nirmala
common
in all
FDs.
9. Debentures of Birla Gunjan+Nirmala 30000.00 PW-8 Jute Industries Munni+Nirmala Gajanan Nirmala+Rani Agrawal Rani+Nirmala Exs.
99-102.
10. FDRs/CTD Premier 20000.00 PW-3 Roy Automobiles ? D Souza Ex.26
11. Debentures Indian Nirmala+Munni 30000.00 PW-10 75 each Hotels Co. Munni+Nirmala Prabhakar pair of Gunjan+Nirmala Phatak holders Rani+Nirmala Exs.59-62
12. FDRs of TELCO Nirmala, 32000.00 PW-5 Navin 6 FDs Rajendra, Kumar Exs. each in Rani, Munni 36 to 42 Joint name of
two
persons
each
13. Debentures of Nirmala, Rani, 4000.00 PW-9 10 each Reliance Ltd. Gunjan, Padmakar Jonko Exs.54-57 7 APEAL-270.01
14. Bank balance Rajendra, 34644.40 PW-4 Nirmala, Gopalan Gunjan 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 180038.00 PW-15 Loans Munni Madan
Mairal
Exs.96,
97.
PW-19
Rajan
Masukar
Ex.104.
PW-20
Sanjay
Chavan Ex.
160.
16. National Savings 82000.00 PW-15 Cetificate Madan Mairal Ex.
91.
PW-16
Narayan
8 APEAL-270.01
17. House at 49500.00 PW-22 Ram- Chakradharpur 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 50500.00 - - Sundaramma
19. Telephone Deposit 1200.00
642882.42
20. Gold earrings Nirmal Jonko 6844.00 PW-8 32.950 grams Deepak Ex. 21.984 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 has to presume the existence of the further fact in support of the prosecution case, viz., that the gratification was accepted or obtained by the
accused as a motive or reward such as mentioned in s. 161, Penal Code. The presumption however, is not absolute. It is rebuttable. The accused can prove the contrary. The quantum and the nature of proof
required to displace this presumption may vary according to
the circumstances of each case. Such proof may partake the shape of
defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of
cross-examination or otherwise. But the degree and the character of the burden of proof which s. 4(1) casts on an accused person to rebut the
presumption raised thereunder, cannot be equated with the degree
and character of proof which under s. 101, Evidence Act rests on the
prosecution. While the mere plausibility of an explanation given by the accused in his examination
under s. 342, Cr.P.C. may not be
enough, the burden on him to negate the presumption may stand discharged, if the effect of the
23 APEAL-270.01
material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere
preponderance of probability in his favour; it is not necessary for him lo establish his case beyond a
reasonable doubt - see Mahesh Prasad Gupta v. State of Rajasthan, AIR
1974 SC 773.
15. Even this Court had held in N.P. Lotlikar v. C.B.I. and another, reported in 1993 Cri.L.J. 2051, that the accused needs to establish only through preponderance of probabilities that the defence is plausible. There can be no doubt about this proposition. But unfortunately the material produced by the accused first, is restricted to his own father's income and properties, which is rendered improbable by proof of the fact that funds flowed, not from his father to him, but from him to his father. Secondly, while the appellant was keen to establish his father's sound financial position, when questioned about assets in the names of his other relations, the learned counsel submitted that it was for those others to explain and that it was not necessary for the appellant to furnish an explanation. I have considered these contentions. As the discussion to follow would show, the 24 APEAL-270.01
explanations furnished by the appellants are so unreasonable and unbelievable that the learned trial Judge could not but have rejected them. The appellant had not even made a case of his explanation being probable.
16. The learned PP submitted that the appellant too could have shown that the source of these investments in the names of Nirmala, Munni, Rani and Gunjan were from the income of Birchand Ho or Nirmala s father Dharamdas. The learned PP submitted that Nirmala, Rani, Munni or Gunjan are not shown to have any independent source of income. The learned counsel for the appellant submitted that it was not for the appellant to show whether these persons had any independent source of income or not. It would be for the prosecution to establish that they had no source of income. This contention could have been accepted but for the fact that the appellant took upon himself the task of explaining as to how his father was a man of means by submitting a written statement to supplement his statement under Section 313 of Criminal Procedure Code and also by annexing supporting documents. Thus, if he could explain the income of his father, there is no reason why he could not similarly come out with an 25 APEAL-270.01
explanation about the income of Nirmala, Munni and Rani, who are admittedly shown to be persons without any income. Therefore, though ideally the prosecution ought to have shown the source from which money came for each of these investments, failure to do so need not necessarily result in rejecting the prosecution case.
17. The learned PP submitted that it is not that the prosecution has not shown the source from where money for investments came. He pointed out that the appellant s father Birsingh Ho, who was supposed to be a man of means and supposed to have funded acquisition of properties by his daughters or daughter-in- law, in fact did not have money for the purchase of a house at Chakradharpur. He pointed out that the appellant s father was in fact working in a biri factory on meagre wages as could be seen from the evidence of PW-29 PI Shinde. PW-30 Raman Tyagi had also stated that Birsingh Ho did not have much of income from cultivation or other activities. The learned PP also drew my attention to the evidence of PW-27 Sunil Kumar who was working for the Biri Trading Company where the appellant s father was employed. PW-27 Sunil Kumar had proved the 26 APEAL-270.01
statement of wages paid to Birsingh Ho from time to time, which is at Exhibit-130, which would show that the monthly wages paid to Birsingh Ho ranged between `98.50 in 1970 to `442/- in 1987. Therefore, according to the learned PP, Birsingh Ho could not at all have been in a position to finance the investments by his daughters or daughter-in-law.
18. The learned counsel for the appellant had an objection to receipt of evidence of PW-30 Raman Tyagi. According to the learned counsel, just as PW-29 PI Shinde had been authorised by order dated 2-11-1987 (Exhibit-140) to investigate into the crime in exercise of powers under Section 5-A(1) of the PC Act, 1947, similar authorisation was not issued in the name of Tyagi. Therefore, he submitted that the entire investigation carried out by Tyagi in Jharkhand, which includes evidence collected about the properties of Birsingh Ho and his income would have to be excluded from consideration. The learned PP submitted, and rightly in my view, that the order at Exhibit-140 authorised PI Shinde to conduct investigation with the assistance of other officers as well. Therefore, it is not that services of Raman Tyagi could not have 27 APEAL-270.01
been employed for the purpose of carrying out investigation. The learned counsel for the appellant relied on a Judgment of the Supreme Court in State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri, reported in 2007 All MR (Cri.) 555 (SC) on the question of unauthorised investigation. He submitted that Tyagi had no authority to investigate into the offences since there was no order issued in the name of Tyagi. It has, however, to be noticed that the Court observed in para 21 of its Judgment as under:
21. It is true that only on the basis of the illegal investigation a proceeding may not be quashed unless miscarriage of justice is shown, but, in this case, as we have noticed
herein before, the respondent had
suffered miscarriage of justice as the investigation made by P.W.41 was not fair.
Therefore, the illegality of investigation per se would be unhelpful. It is not shown that the investigation carried out by Tyagi was not fair. In any case, Raman Tyagi stated in his deposition at Exhibit-145 that he had been asked by the S.P. Shri A.L. Verma to gather evidence about the income derived by the father of the accused and in pursuance of those 28 APEAL-270.01
directions he had gone to Chakradharpur. Though ideally Verma could have passed an order in the name of Tyagi as well just as he had passed the order in the name of PI Shinde, the absence of such order on record in itself would not make any material collected by Tyagi inadmissible in evidence. In any case, the evidence of PW-30 Tyagi is negative, in the sense that he states that Birsingh Ho did not own properties worth the name. The evidence about income from the biri factory has been tendered by PW-29 PI Shinde himself.
19. The learned PP further submitted that if Birsingh Ho did have substantial income to finance the investments of his daughters in Mumbai, there would be no question of monies flowing from Mumbai, where the appellant was posted, to Jaraikela where Birsingh Ho was residing. He pointed out that consideration for purchase of a house at Chakradharpur from Akundi Sundaramma and loan advanced to her, in fact went from Mumbai to Chakradharpur by a circuitous route which has been duly traced by the prosection. Akundi Sundaramma was paid a sum of `49,500/- by cheque dated 13-3-1985 which is marked as Exhibit-F in the evidence of PW-28 Sujit Moitra, the Deputy Manager of State 29 APEAL-270.01
Bank of India, Jaraikela at the relevant time. On 13-3-1985 and 14-3-1985, Nirmala, the appellant s wife, had issued two cheques in favour of Akundi Sundaramma for `49,500/- and `50,500/- respectively. They were drawn on Nirmala s account No.9897 from Chakradharpur Branch. The amount came from a draft for `1,00,000/- issued in the name of Birsingh Ho and Nirmala Jonko on 22-2-1985 from the State Bank of India, Fort, Bombay Branch, drawn on State Bank of India Jaraikela Branch. This was credited to account No.9897 from where the consideration went for the purchase of property of Akundi Sundaramma. The learned PP also pointed out that it is not an isolated transaction of money flowing from Mumbai to Jharkhand. He pointed out that on the same date, that is on 22-2-1985 another sum of `20,000/- was remitted by drawing a draft in the name of Birsingh Ho and Nirmala Jonko, payable at Jaraikela Branch of State Bank of India. This too was issued by State Bank of India, Fort Banch, Mumbai. On the same day another draft in the name of Nirmala Jonko and Munni Jonko for `52,500/- was issued by the State Bank of India, Fort-Bombay, payable at State Bank of India, Jaraikela. All these drafts have been identified in the course of 30 APEAL-270.01
evidence of PW-28 Sujit Moitra. The draft for `52,500/- was credited in Nirmala and Munni s account on 4-3-1985 vide extract of account Exhibit-132. The learned PP, therefore, rightly submitted that if Birsingh Ho was a man of means, amounts should have been remitted by him to his son at Mumbai rather than amounts flowing from Mumbai for purchase of property at Chakradharpur. Curiously remittances from Mumbai have been made in favour of persons which, in each case, includes the appellant s wife. Therefore, the contention that the persons in whose names the assets were acquired had their own source of income or that acquisition of assets was financed by the appellant s father Birsingh Ho was rightly rejected by the learned trial Judge as an eye- wash.
20. It would be interesting to note as to what the appellant states in his written statement to supplement his statement under Section 313 of Criminal Procedure Code. He stated that his father was the richest person from the village and therefore could educate all his children. He has filed on record certificates from Anchal Adhikari, Bandgaon and Sarpanchs of Gram Panchayats, Otar and 31 APEAL-270.01
Buddigoda to support his claim about the status of his father. The certificate of Anchal Adhikari, Bandgaon shows that the appellant s father owned land worth `90,000/-, possibly 3.12 hectares in area. The certificates of Sarpanchs of the two Gram Panchayats are similarly worded and both state that Birsingh Ho had about 8 to 10 acres of cultivable land from which he could save at least 80 quintals of paddy after the household expenses. The certificates show that one puda of paddy is about 12 to 15 quintals and the yield was about 15 pudas, that is about 225 quintals of paddy. It is not known whether 8 acres of land or 3 hectares of land could yield 225 quintals of paddy per annum.
21. Considering all this, the evidence tendered about investments was rightly accepted by the learned trial Judge, who had in fact given an allowance to the appellant by adding to his salary income. The income which the learned Judge took into consideration was `2,69,688/- against `1,40,188/- from salary. The learned Judge had also increased the likely savings to `2,44,688/- from `1,58,188/- shown in the charge. Even then the assets were found to be disproportionate to the extent of 32 APEAL-270.01
`3,87,570/-.
22. The learned PP submitted that though two cars are shown to have been purchased in the names of the appellant's sister and wife by taking loan, since they had no income, it is not clear as to how the loan was to be repaid. The appellant had stated in his written statement at Exhibit-152, in para 4, that the amounts standing in the name of his wife in the Nepean Sea Road Branch of State Bank of India were amounts received by her as gifts from her parents and the appellant's father from time to time, and therefore were stridhan. He submitted that as per the traditions of the tribal society of the accused, the accused was getting 25% agricultural produce of his family and that he was getting grain and cereal from his native place. Therefore, he had claimed that he could save 70% of his income. The learned Judge too had taken only 30% of the salary as the household expenditure. Therefore, this argument does not take the appellant s case further.
23. On the question of disproportionate assets, the learned counsel for the appellant referred to a Judgment of the Supreme Court in State of Maharashtra v. Pollonji Darabshaw 33 APEAL-270.01
Daruwalla, reported in 1988 Cri.L.J. 183 = AIR 1988 SC 88. The observations of the Court in para 13 of the Judgment may be usefully reproduced as under:
13. However, these errors of approach and of assumption and inference in the judgment under appeal do not, by themselves, detract from the conclusion reached by the High Court that, in the
ultimate analysis, the prosecution has not established the case against respondent beyond reasonable doubt.
The discussion of and the
conclusion reached on the contents and parts (c) to (e) by the High
Court tends to show that the disproportion of the assets in relation to the known source of
income is such that respondent should be given the benefit of doubt though however, on a consideration of the matter, if cannot be said that there is no disproportion or even a sizeable disproportion. For instance, Shri Bhasme is right in his contention that the acceptance by the High Court of the case of the alleged gift from the mother is wholly
unsupported by the evidence. There are also other possible errors in the calculations in regard to point(e). The finding becomes inescapable that the assets were in excess on the
known sources of income.
34 APEAL-270.01
But on the question whether
the extent of the disproportion is such as to justify a conviction for criminal misconduct under Section
5(1)(e) read with Section 5(2), we think, we should not, in the circumstances of the ease, interfere with the verdict of the High Court as, in our view, the difference would be considerably reduced in the light of the factors pointed out by the
High Court. A somewhat liberal view requires to be taken of what proportion of assets in excess of the known sources of income constitutes "disproportion" for purpose of Section 5(1)(e) of the Act.
There can be no doubt about the proposition that merely because the assets are in excess of known sources of income, that in itself cannot amount to criminal misconduct, and unless the assets are shown to be disproportionate, the accused s conviction should not follow. In the case at hand, the disproportion held as proved by the learned Judge is significant.
24. The learned counsel for the appellant next submitted that the prosecution must fail because it is not shown that sanction for prosecution was accorded by authority competent to do so. He relied on a Judgment of the Supreme Court in Mohd. Iqbal Ahmed v. State of Andhra Pradesh, reported in 1979 Cri.L.J. Page 35 APEAL-270.01
633 = AIR 1979 SC 677 on the question of sanction to prosecute. The observations of the Supreme Court in para 3 of the Judgment may be usefully reproduced as under:
.... It is incumbent on the prosecution to prove that a valid
sanction has been granted by the
Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the
original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing
evidence aliunde to show that the
facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because
this being a manifest difficult (sic- defect) in the prosecution, the entire proceedings are rendered void ab initio.
25. In State of T.N. v. M.M. Rajendran, reported in 1998 SCC (Cri.) 1000, on which reliance was placed by the learned counsel for the appellant, the Supreme Court was again considering the question of a valid sanction and observed as under:
36 APEAL-270.01
.... The High Court, has come to
the finding that all the relevant
materials including the statements recorded by the Investigating Officer had not been placed for consideration by the City Commissioner of Police, Madras because only a report of the Vigilance Department was placed before him. The High Court also came to the finding that although the
Personal Assistant to the City Commissioner of Police, Madras has deposed in the case to substantiate that proper sanction was accorded by the City Commissioner of Police, the witness has also stated that the
report even though a detailed one was placed before the Commissioner by him and on consideration of which the
Commissioner of Police had accorded the sanction, it appears to us that from such deposition, if cannot be held conclusively that all the relevant materials including the statements recorded by the Investigating Officer had been placed before the Commissioner of Police. It appears that the Commissioner of
Police had occasion to consider a
report of the Vigilance Department. Even if such report is a detailed
one, such report cannot be held to be the complete records required to be considered for sanction on application of mind to the relevant materials on records. Therefore, it cannot be held that the view taken by the High Court that there was no
proper sanction in the instant case is without any basis. ....
37 APEAL-270.01
26. The learned counsel for the appellant drew my attention to the evidence of PW-24 Ram Raj Bharti who was at the relevant time serving in the Ministry of Finance. The sanction at Exhibit-120 was signed by him as Under Secretary to Government of India. He stated that the President is the authority to sanction prosecution in such cases. But the officers of the level of Under Secretary are authorised to pass such orders. He stated that all the papers concerning the case of the appellant were sent by CBI to him. He sent those papers to the Minister with his short note and received the papers back after the Minister's approval. He states that after going through the papers he was satisfied that the officer had committed offence and accordingly he accorded sanction for prosecution. In cross-examination he stated that before the papers came to him, they were initially sent to the concerned Ministry but could not tell the date on which they were sent to the Ministry, or the date when the papers were considered by the Ministry and then sent to him. He denied the suggestion that while according sanction he took report of the CBI to be truthful, implying that he had applied his mind to the material.
38 APEAL-270.01
27. The learned counsel for the appellant submitted that under the Rules of Business of Government of India, the Department, which is the cadre controlling authority, and not a particular officer of that Department, is the authority competent to accord sanction. There could be no doubt that Department would be sanctioning prosecution. But since the Department functions through individuals, approval by the Minister who heads the Department should be enough to indicate that the Department had authorised the prosecution of the appellant. The hierarchy in the Department obtained by the appellant by filing a query under the Right to Information Act which he has made available for my perusal, does not show that the Under Secretary was not authorised to issue sanction order. Therefore, reliance on the Judgments of the Supreme Court in the State of Rajasthan v. Dr. A.K. Datta, reported in AIR 1981 SC 20 and Parmanand Dass v. State of Andhra Pradesh, reported in 1978 Cri.L.J. 1802 = AIR 1978 SC 1745, which deal with the factual question as to who was the sanctioning authority in those cases is unhelpful. For the same reason, it may not be necessary to discuss the Judgment of this Court in Pravin Kumar v. The State, reported in 2005 39 APEAL-270.01
Cri.L.J. 2714. There is nothing to show that there is any defect in the sanction and therefore the objections on this count have to be rejected.
28. The learned counsel also submitted that the sentence inflicted upon the appellant is unduly harsh and since it pertains to incident 24 years ago, at this point of time maintaining that sentence would be unjust. The learned trial Judge has considered this aspect as well in para 24 of his Judgment and has rightly held that delays caused due to the system cannot work to the advantage of the appellant who should have been served with just dessert long ago.
29. In view of the above, the appeal is dismissed. However, the order convicting the appellant is modified and the conviction of the appellant for the offence punishable under Section 13(2) r/w Section 13(1)(e) of the PC Act, 1988 is altered to that for the offence punishable under Section 5(2) r/w Section 5(1) (e) of the PC Act, 1947. The appellant shall surrender to his bail within a period of four weeks to suffer his sentence and if he does not, the learned trial Judge shall have him 40 APEAL-270.01
arrested and committed to prison.
Sd/-
(R.C. CHAVAN, J.)

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