During the pendency of the present application, original
accused no.1, who was applicant no.1, passed away and, therefore, his
accused no.1, who was applicant no.1, passed away and, therefore, his
name came to be deleted from the cause title of the application. Now,
the application is being prosecuted only by his wife, accused no. 2.
The present applicant no.2, who is accused no.2, is a non-
public servant and is facing a prosecution for commission of offence of
collecting assets by a public servant disproportionate to his known source
of income. The public servant, the original accused no.1 and husband of
present applicant, is no more alive and, therefore, learned counsel for
applicant no. 2 submits that the offence alleged against the applicant
cannot be proved. Though, learned APP disagrees, he could not show to
me as to how the offence of abetment as alleged against the applicant
no. 2 could be proved in the absence of the public servant, deceased
applicant no. 1 or accused no. 1. If it is the case that the main offence of
amassing illegal wealth disproportionate to the known source of income
cannot be proved by the prosecution against the public servant, i.e.
accused no. 1, having regard to the nature of allegations made against
applicant no. 2, offence of abetment of the offence can obviously be not
proved against the person who is not a public servant, i.e. accused no.2.
Allegations against applicant no. 2 or accused no. 2 are that she abetted
the commission of offence by her husband, the accused no. 1,
intentionally aiding him to amass the wealth.
by
The intentional aiding was
in the nature of holding in her name the assets purchased by her
husband
using ill-gotten money.
The fact that funds used for
purchasing assets were supplied by the husband, the deceased public
the application is being prosecuted only by his wife, accused no. 2.
The present applicant no.2, who is accused no.2, is a non-
public servant and is facing a prosecution for commission of offence of
collecting assets by a public servant disproportionate to his known source
of income. The public servant, the original accused no.1 and husband of
present applicant, is no more alive and, therefore, learned counsel for
applicant no. 2 submits that the offence alleged against the applicant
cannot be proved. Though, learned APP disagrees, he could not show to
me as to how the offence of abetment as alleged against the applicant
no. 2 could be proved in the absence of the public servant, deceased
applicant no. 1 or accused no. 1. If it is the case that the main offence of
amassing illegal wealth disproportionate to the known source of income
cannot be proved by the prosecution against the public servant, i.e.
accused no. 1, having regard to the nature of allegations made against
applicant no. 2, offence of abetment of the offence can obviously be not
proved against the person who is not a public servant, i.e. accused no.2.
Allegations against applicant no. 2 or accused no. 2 are that she abetted
the commission of offence by her husband, the accused no. 1,
intentionally aiding him to amass the wealth.
by
The intentional aiding was
in the nature of holding in her name the assets purchased by her
husband
using ill-gotten money.
The fact that funds used for
purchasing assets were supplied by the husband, the deceased public
servant, has to be proved first in this case. It cannot be proved in the
absence of deceased public servant and, therefore, offence of abetment
of the nature alleged against his wife, the non-public servant,
absence of deceased public servant and, therefore, offence of abetment
of the nature alleged against his wife, the non-public servant,
also be proved.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (apl) No. 1577 OF 2007
1. Prakash Ramaji Ambagade
... DELETED
(As per Court's order dtd. 13.11.2014)
2. Smt. Nalini Prakash Ambagade
VERSUS
The State of Maharashtra,
through Anti Corruption Bureau,
Nagpur.
CORAM :
S.B. SHUKRE, J.
DATED : 29.01. 2015.
Citation;2015ALLMR(Cri)1564
Initially, this application was
filed by Prakash Ramaji
Ambagade and Smt. Nalini Prakash Ambagade, the accused no. 1 and 2
in the charge-sheet filed against them by the Anti Corruption Bureau,
Nagpur, for the offence punishable under Section 13(2) read with Section
13(1)(e) of Prevention of Corruption Act and under Section 109 of Indian Penal Code.
Applicant no. 1, who is now dead and who was accused
3.
no. 1, was the husband of applicant no.2, original accused no. 2. Accused
no. 2 has been roped in the charge-sheet on the allegations that being
wife of accused no. 1, she abetted accused no. 1, her husband, during
the period from the year 1973 to the year 2001, to amass huge health
which was disproportionate to his known source of income. The value of
the disproportionate assets of accused no.1, as estimated by the
prosecution, was of Rs.29,30,642/-.
In these disproportionate assets, it
was alleged, the shares of assets held in the name of accused no. 2 was
Rs.7,63,372/-. It was alleged by the prosecution that applicant no.2 or
by
holding these assets worth Rs.7,63,372/- abetted
accused no. 2,
accused no. 1, her husband, in commission of the offence of
accumulating assets disproportionate to his known source of income.
Both the accused had filed an application(Ex.9) seeking
4.
their discharge under Section 227 of Code of Criminal Procedure from the
said case. It was, however, rejected by the Judge of the Special Court by
the order passed on 3.5.2007. Therefore, both the accused preferred the
present application under Section 482 of Code of Criminal Procedure
seeking their discharge from the case and seeking quashing of criminal
proceedings.
5.
During the pendency of the present application, original
accused no.1, who was applicant no.1, passed away and, therefore, his
name came to be deleted from the cause title of the application. Now,
6.
the application is being prosecuted only by his wife, accused no. 2.
The present applicant no.2, who is accused no.2, is a non-
public servant and is facing a prosecution for commission of offence of
collecting assets by a public servant disproportionate to his known source
of income. The public servant, the original accused no.1 and husband of
present applicant, is no more alive and, therefore, learned counsel for
applicant no. 2 submits that the offence alleged against the applicant
cannot be proved. Though, learned APP disagrees, he could not show to
me as to how the offence of abetment as alleged against the applicant
no. 2 could be proved in the absence of the public servant, deceased
applicant no. 1 or accused no. 1. If it is the case that the main offence of
amassing illegal wealth disproportionate to the known source of income
cannot be proved by the prosecution against the public servant, i.e.
accused no. 1, having regard to the nature of allegations made against
applicant no. 2, offence of abetment of the offence can obviously be not
proved against the person who is not a public servant, i.e. accused no.2.
Allegations against applicant no. 2 or accused no. 2 are that she abetted
the commission of offence by her husband, the accused no. 1,
intentionally aiding him to amass the wealth.
by
The intentional aiding was
in the nature of holding in her name the assets purchased by her
husband
using ill-gotten money.
The fact that funds used for
purchasing assets were supplied by the husband, the deceased public
servant, has to be proved first in this case. It cannot be proved in the
absence of deceased public servant and, therefore, offence of abetment
of the nature alleged against his wife, the non-public servant,
also be proved.
7.
cannot
In the case of Amara Krishna Mohan Rao & ors. v.
State of A.P.1 the learned Single Judge of Andhra Pradesh High Court
The learned Single Judge has held that the question of
paragraph.
has also taken the same view, as expressed by me in the earlier
prosecuting a non-public servant for an offence covered by the provisions
of Anti Corruption Act arises only if there is a possibility of ascertaining
the commission of the main crime by the public servant and if this
possibility is not there, there would be no chance of upholding the same
charge as against the non-public servant as well.
8.
Of course, in the instant case, trial as against original
accused no. 1 is yet to be abated, as no formal order in this regard
appears to have been passed by the trial Court. But, only for that reason,
this Court would not be prevented from passing appropriate order so that
justice is done, as rightly submitted by learned counsel for applicant no.
2.
Ultimately, raison d'être of the power of the Court under Section
482 of Code of Criminal Procedure is to enable the Court to pass such
orders as are necessary to meet the ends of justice in situations where
recourse cannot be taken to express provisions of law or where it is
necessary to do so for preventing miscarriage of justice. It is an admitted
fact that the original accused no. 1 has already died and, therefore, there
would be no option available than to pass an order of abatment of trial as
against original accused no. 1. That order, for some reasons, has not
been formally made by the trial Court in this case and since it has not
been made, now it can be passed by this Court while exercising its
jurisdiction under Section 482 of Code of Criminal Procedure.
Such an
9.
order is, therefore, being passed in this judgment.
Even otherwise, on prima facie worth of the case, I find
that learned counsel for applicant no. 2 is right when he submits that the
allegations made against the original accused no.1, even if accepted as
they are, would not be sufficient to constitute an offence of commission
of abetment of amassing illegal wealth and I am of the view that
prosecution has failed to collect sufficient evidence to make the Court
believe that there are sufficient grounds to proceed in the case.
10.
The allegation against the present applicant no. 2
or
original accused no. 2 is that by possessing assets worth Rs.7,63,372/- in
her name, she has committed offence of abetment of crime of collecting
disproportionate assets by her husband, the original accused no.1. This
would mean that prosecution evidence collected to support the allegation
against accused no. 2 must show that during the relevant period, that is
from the year 1973 to the year 2001, accused no. 2 had no income worth
the name to enable her to be on her own in purchasing the assets. But,
independent source of income during the relevant period.
the material available on record does not show that accused no. 2 had no
11.
There is a letter dated 21.3.2002 sent by the Deputy
Commissioner of Police to the Income Tax Department, which is forming
part of the charge-sheet, which shows that the Deputy Commissioner of
Police had requested the Income Tax Department for supplying of all the
It is not known whether all the Income Tax Returns were
letter.
Income Tax Returns filed by original accused no. 2 till the date of the
accordingly sent to the Deputy Commissioner of Police, as all the Income
Tax Returns of original accused no. 2 had not been filed along with the
charge-sheet. Prosecution has produced on record Income Tax Returns
accused no. 2 for only
two assessment years, i.e. 1999-2000 and
of
2000-2001. Bare perusal of these Income Tax Returns would show that
accused no. 2 had an independent source of income and even during
those those two assessment years, she was earning handsome income.
For the assessment year 1999-2000, total income earned by her was of
Rs.1,52,000/- and for the assessment year 2000-2001 the total income
earned was of Rs.1,40,192/-. This would only show that the applicant or
accused no. 2 was capable of acquiring self financed assets in her own
name.
At least, some of the assets shown in the charge-sheet , as
standing in her name, could have been acquired by her by using her said
income.
12.
According to learned counsel for the applicant, the
applicant had been filing Income Tax Returns since the year 1983 and
onwards continuously. He submits that even though the prosecution has
not produced on record copies of previous Income Tax Returns, the
applicant has filed on record the
copies of the previous Income Tax
Returns and these Income Tax Returns would show that the applicant had
been earning consistently substantial income so as to enable her to
acquire various assets in her own name without depending on anybody's
13.
income.
I have perused these Income Tax Returns filed on record
by the applicant which are for the previous years, and which start from
the assessment year 1983-1984.
These are public documents and,
therefore, as held in the cases of Rukmini Narvekar v. Vijaya
Satardekar & ors.2 and Harshendra Kumar D. v. Rebatilata Koley
& ors.3
they can be looked into by the High Court in exercise of its
power under Section 482 of Code of Criminal Procedure for doing justice
in the matter. These Income Tax Returns, although demanded by Deputy
Commissioner of Police as per his letter dated 21.3.2002, have not been
produced on record by the prosecution and no explanation has been
given by the prosecution as to why they were not forming part of charge-
sheet. It could have certainly explained in the charge-sheet the reason
for their non-production. But the fact that no such explanation has been
2 AIR 2009 SC 1013
3 (2011) 3 SCC 351
it would be appropriate
to infer that the
given by the prosecution,
prosecution has not produced copies of these Income Tax Returns only
because they do not support the allegations against the present applicant
no. 2 or original accused no. 2 and this will provide a reason for this
Court to look into the Income Tax Returns filed on record by applicant no.
2 to satisfy itself as to whether the inference being so drawn is correct or
not.
Reverting back to the Income Tax Returns, I find that for
14.
the assessment year 1983-84, total income of the present applicant was
of Rs.40,441/- and it also shows she was the owner of Stridhan worth
Rs.51,000/-, 103 tolas of gold , 5 kg. Of silver, two buffaloes and three
This Income Tax Return also shows that the applicant had
cows.
additional income drawn from
Rs.1,46,500/-.
applicant
was
dairy farming and gifts, which was of
For the assessment year 1984-85, total income of the
Rs.41,244/-
which
agricultural and allied activities.
includes
her
income
from
the
For the assessment year 1985-1986,
income of the applicant was Rs.38,838/-. The Income Tax Returns for the
subsequent years filed up to the year 1990 disclose that applicant's total
income hovered in between Rs.33,000/- to Rs.40,000/-. After the year
1990, her income saw an upward rise.
onwards,
From the year 1991-1992 and
her income ranged from Rs.65,000/- to Rs.85,000/- and it
reached its peak in the year 1999-2000 when admittedly her income was
of Rs.1,52,103. It further rose in the year 2001-2002 to Rs.2,33,381/-.
Therefore, the only
been earning considerable income of her own.
These Income Tax Returns surely disclose that the applicant has always
conclusion would be that the applicant, at least from the year 1983 and
onwards, was capable of acquiring assets in her own name by financing
from her own funds.
15.
In the charge-sheet, in all 9 assets standing in the name
of applicant no. 2 have been shown as culpable. Out of them, 8 assets
have been purchased in between the year 1989 and the year 1997 and
their admitted values are such as fall within the means and capacity of
applicant no.2 as disclosed by declared earnings in the Income Tax
Returns discussed above. There is only one asset acquired in the year
1978, which is the ninth asset shown to be culpable. It is an agricultural
land prized at Rs. 30,000/- in which she has half share along with her
father. But, the property has been purchased by her father. If such is
the position emerging from the material available on record,
there was
heavy burden upon prosecution to collect some evidence to show that
the applicant, for purchasing assets worth Rs.7,63,372/-,
used not to
resort to her own income but income of her deceased husband with an
intention to aid her deceased husband, original accused no.1, to commit
the alleged offence of collecting disproportionate assets punishable
under Section 13(2) of the Prevention of Corruption Act. However, upon
perusal of entire charge-sheet, I could not see any such material to
enable me to come to a conclusion that this applicant had aided original
accused no.1 to purchase assets in her own name and that this applicant
was in reality only a Benamidar, who allowed her name to be used as a
facade for the real transaction behind it, which was culpable. Learned
APP also could not show to me presence of any such material on record
of the case. If such is the case, I do not think that the allegations made
against the present applicant, even when accepted as they are, would be
sufficient to prima facie make out the offence alleged against her.
Learned Single Judge of this Court in the case of Smt.
16.
Kamlesh Jain w/o Sureschandra Jain v. C.B.I., Nagpur, [Cri. Appln. NO. 52
of 2006 decided on 9.3.2010] after considering the law laid down by the
Hon'ble Apex Court on the factors governing discharge of the applicant in
such cases as in the cases of (i) Century Spinning & Manufacturing Co.
Ltd. v. State of Maharashtra4 ; (ii) Niranjan Singh Karam Singh Punjabi v.
Jitendra Bhimraj Bijja5; (iii) Superintendent & Remembrancer of Legal
and (iv) Yogesh @ Sachin
Affairs, West Bengal v. Anil Kumar Bhunja6
Jagdish Joshi v. State of Maharashtra7 has summarised the para meters
which must be considered by the Court while dealing with an application
seeking discharge under Section 227 of Code of Criminal Procedure, as
follows :
“It seems well settled that at the Sections 227, 228
stage the Court is required to evaluate the materials and
4
5
6
7
AIR 1972 SC 545
AIR 1990 SC 1962
(1979) 4 SCC 274
AIR 2008 SC 2991
documents on record with a view to finding out if the
facts emerging therefrom taken at their face value
disclose the evidence of all the ingredients constituting
the alleged offence.
The Court may for this limited
purpose even at that initial stage
accept all that the
prosecution states as gospel truth even if it is opposed
17.
to common sense or the broad probabilities of the case.”
Following these parameters, I find that there is no material
available on record from which it can be said that there exists something
on record which prima facie constitutes the offence alleged against
applicant no. 2 or which even leads to a reasonable suspicion founded
upon some reasonable ground that the present applicant may have used
funds illegally collected by her husband for purchasing assets in her own
name and may have allowed her husband to use herself as a Benamidar
in those transactions.
Only by saying that the applicant has abetted
commission of offence under Section 13(2) read with Section 13 (1)(e),
would not be enough and some material would have to be shown by the
prosecution to substantiate the allegations. When the material collected
during the course of investigation is accepted as it is and is considered
together with the documents produced on record by applicant no. 2 for
the limited purpose of ascertaining whether or not there are sufficient
grounds to frame the charge, as held in the case of Niranjan Singh
Karam Singh Punjabi v. Jitendra Bhimraj Bijja, supra, the necessary
made out.
Therefore, even on the criterion of prima facie worth of the
prosecution case,
present applicant no. 2
from the case.
18.
ingredients of commission of offence of abetment of a crime are not
deserves to be discharged
In the result, I am of the view that this application
deserves to be allowed and is allowed accordingly. Trial of the case in
Special Case No.12 of 2003 as against original accused no. 1 Prakash
Ramaji Ambagade stands abated. Accused no. 2, the present applicant,
Smt. Nalini Prakash Ambagade, stands discharged from the case.
Property seized from custody of both the applicants
including the documents be released to the applicant, after usual period
of appeal is over.
JUDGE
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (apl) No. 1577 OF 2007
1. Prakash Ramaji Ambagade
... DELETED
(As per Court's order dtd. 13.11.2014)
2. Smt. Nalini Prakash Ambagade
VERSUS
The State of Maharashtra,
through Anti Corruption Bureau,
Nagpur.
CORAM :
S.B. SHUKRE, J.
DATED : 29.01. 2015.
Citation;2015ALLMR(Cri)1564
Initially, this application was
filed by Prakash Ramaji
Ambagade and Smt. Nalini Prakash Ambagade, the accused no. 1 and 2
in the charge-sheet filed against them by the Anti Corruption Bureau,
Nagpur, for the offence punishable under Section 13(2) read with Section
13(1)(e) of Prevention of Corruption Act and under Section 109 of Indian Penal Code.
Applicant no. 1, who is now dead and who was accused
3.
no. 1, was the husband of applicant no.2, original accused no. 2. Accused
no. 2 has been roped in the charge-sheet on the allegations that being
wife of accused no. 1, she abetted accused no. 1, her husband, during
the period from the year 1973 to the year 2001, to amass huge health
which was disproportionate to his known source of income. The value of
the disproportionate assets of accused no.1, as estimated by the
prosecution, was of Rs.29,30,642/-.
In these disproportionate assets, it
was alleged, the shares of assets held in the name of accused no. 2 was
Rs.7,63,372/-. It was alleged by the prosecution that applicant no.2 or
by
holding these assets worth Rs.7,63,372/- abetted
accused no. 2,
accused no. 1, her husband, in commission of the offence of
accumulating assets disproportionate to his known source of income.
Both the accused had filed an application(Ex.9) seeking
4.
their discharge under Section 227 of Code of Criminal Procedure from the
said case. It was, however, rejected by the Judge of the Special Court by
the order passed on 3.5.2007. Therefore, both the accused preferred the
present application under Section 482 of Code of Criminal Procedure
seeking their discharge from the case and seeking quashing of criminal
proceedings.
5.
During the pendency of the present application, original
accused no.1, who was applicant no.1, passed away and, therefore, his
name came to be deleted from the cause title of the application. Now,
6.
the application is being prosecuted only by his wife, accused no. 2.
The present applicant no.2, who is accused no.2, is a non-
public servant and is facing a prosecution for commission of offence of
collecting assets by a public servant disproportionate to his known source
of income. The public servant, the original accused no.1 and husband of
present applicant, is no more alive and, therefore, learned counsel for
applicant no. 2 submits that the offence alleged against the applicant
cannot be proved. Though, learned APP disagrees, he could not show to
me as to how the offence of abetment as alleged against the applicant
no. 2 could be proved in the absence of the public servant, deceased
applicant no. 1 or accused no. 1. If it is the case that the main offence of
amassing illegal wealth disproportionate to the known source of income
cannot be proved by the prosecution against the public servant, i.e.
accused no. 1, having regard to the nature of allegations made against
applicant no. 2, offence of abetment of the offence can obviously be not
proved against the person who is not a public servant, i.e. accused no.2.
Allegations against applicant no. 2 or accused no. 2 are that she abetted
the commission of offence by her husband, the accused no. 1,
intentionally aiding him to amass the wealth.
by
The intentional aiding was
in the nature of holding in her name the assets purchased by her
husband
using ill-gotten money.
The fact that funds used for
purchasing assets were supplied by the husband, the deceased public
servant, has to be proved first in this case. It cannot be proved in the
absence of deceased public servant and, therefore, offence of abetment
of the nature alleged against his wife, the non-public servant,
also be proved.
7.
cannot
In the case of Amara Krishna Mohan Rao & ors. v.
State of A.P.1 the learned Single Judge of Andhra Pradesh High Court
The learned Single Judge has held that the question of
paragraph.
has also taken the same view, as expressed by me in the earlier
prosecuting a non-public servant for an offence covered by the provisions
of Anti Corruption Act arises only if there is a possibility of ascertaining
the commission of the main crime by the public servant and if this
possibility is not there, there would be no chance of upholding the same
charge as against the non-public servant as well.
8.
Of course, in the instant case, trial as against original
accused no. 1 is yet to be abated, as no formal order in this regard
appears to have been passed by the trial Court. But, only for that reason,
this Court would not be prevented from passing appropriate order so that
justice is done, as rightly submitted by learned counsel for applicant no.
2.
Ultimately, raison d'être of the power of the Court under Section
482 of Code of Criminal Procedure is to enable the Court to pass such
orders as are necessary to meet the ends of justice in situations where
recourse cannot be taken to express provisions of law or where it is
necessary to do so for preventing miscarriage of justice. It is an admitted
fact that the original accused no. 1 has already died and, therefore, there
would be no option available than to pass an order of abatment of trial as
against original accused no. 1. That order, for some reasons, has not
been formally made by the trial Court in this case and since it has not
been made, now it can be passed by this Court while exercising its
jurisdiction under Section 482 of Code of Criminal Procedure.
Such an
9.
order is, therefore, being passed in this judgment.
Even otherwise, on prima facie worth of the case, I find
that learned counsel for applicant no. 2 is right when he submits that the
allegations made against the original accused no.1, even if accepted as
they are, would not be sufficient to constitute an offence of commission
of abetment of amassing illegal wealth and I am of the view that
prosecution has failed to collect sufficient evidence to make the Court
believe that there are sufficient grounds to proceed in the case.
10.
The allegation against the present applicant no. 2
or
original accused no. 2 is that by possessing assets worth Rs.7,63,372/- in
her name, she has committed offence of abetment of crime of collecting
disproportionate assets by her husband, the original accused no.1. This
would mean that prosecution evidence collected to support the allegation
against accused no. 2 must show that during the relevant period, that is
from the year 1973 to the year 2001, accused no. 2 had no income worth
the name to enable her to be on her own in purchasing the assets. But,
independent source of income during the relevant period.
the material available on record does not show that accused no. 2 had no
11.
There is a letter dated 21.3.2002 sent by the Deputy
Commissioner of Police to the Income Tax Department, which is forming
part of the charge-sheet, which shows that the Deputy Commissioner of
Police had requested the Income Tax Department for supplying of all the
It is not known whether all the Income Tax Returns were
letter.
Income Tax Returns filed by original accused no. 2 till the date of the
accordingly sent to the Deputy Commissioner of Police, as all the Income
Tax Returns of original accused no. 2 had not been filed along with the
charge-sheet. Prosecution has produced on record Income Tax Returns
accused no. 2 for only
two assessment years, i.e. 1999-2000 and
of
2000-2001. Bare perusal of these Income Tax Returns would show that
accused no. 2 had an independent source of income and even during
those those two assessment years, she was earning handsome income.
For the assessment year 1999-2000, total income earned by her was of
Rs.1,52,000/- and for the assessment year 2000-2001 the total income
earned was of Rs.1,40,192/-. This would only show that the applicant or
accused no. 2 was capable of acquiring self financed assets in her own
name.
At least, some of the assets shown in the charge-sheet , as
standing in her name, could have been acquired by her by using her said
income.
12.
According to learned counsel for the applicant, the
applicant had been filing Income Tax Returns since the year 1983 and
onwards continuously. He submits that even though the prosecution has
not produced on record copies of previous Income Tax Returns, the
applicant has filed on record the
copies of the previous Income Tax
Returns and these Income Tax Returns would show that the applicant had
been earning consistently substantial income so as to enable her to
acquire various assets in her own name without depending on anybody's
13.
income.
I have perused these Income Tax Returns filed on record
by the applicant which are for the previous years, and which start from
the assessment year 1983-1984.
These are public documents and,
therefore, as held in the cases of Rukmini Narvekar v. Vijaya
Satardekar & ors.2 and Harshendra Kumar D. v. Rebatilata Koley
& ors.3
they can be looked into by the High Court in exercise of its
power under Section 482 of Code of Criminal Procedure for doing justice
in the matter. These Income Tax Returns, although demanded by Deputy
Commissioner of Police as per his letter dated 21.3.2002, have not been
produced on record by the prosecution and no explanation has been
given by the prosecution as to why they were not forming part of charge-
sheet. It could have certainly explained in the charge-sheet the reason
for their non-production. But the fact that no such explanation has been
2 AIR 2009 SC 1013
3 (2011) 3 SCC 351
it would be appropriate
to infer that the
given by the prosecution,
prosecution has not produced copies of these Income Tax Returns only
because they do not support the allegations against the present applicant
no. 2 or original accused no. 2 and this will provide a reason for this
Court to look into the Income Tax Returns filed on record by applicant no.
2 to satisfy itself as to whether the inference being so drawn is correct or
not.
Reverting back to the Income Tax Returns, I find that for
14.
the assessment year 1983-84, total income of the present applicant was
of Rs.40,441/- and it also shows she was the owner of Stridhan worth
Rs.51,000/-, 103 tolas of gold , 5 kg. Of silver, two buffaloes and three
This Income Tax Return also shows that the applicant had
cows.
additional income drawn from
Rs.1,46,500/-.
applicant
was
dairy farming and gifts, which was of
For the assessment year 1984-85, total income of the
Rs.41,244/-
which
agricultural and allied activities.
includes
her
income
from
the
For the assessment year 1985-1986,
income of the applicant was Rs.38,838/-. The Income Tax Returns for the
subsequent years filed up to the year 1990 disclose that applicant's total
income hovered in between Rs.33,000/- to Rs.40,000/-. After the year
1990, her income saw an upward rise.
onwards,
From the year 1991-1992 and
her income ranged from Rs.65,000/- to Rs.85,000/- and it
reached its peak in the year 1999-2000 when admittedly her income was
of Rs.1,52,103. It further rose in the year 2001-2002 to Rs.2,33,381/-.
Therefore, the only
been earning considerable income of her own.
These Income Tax Returns surely disclose that the applicant has always
conclusion would be that the applicant, at least from the year 1983 and
onwards, was capable of acquiring assets in her own name by financing
from her own funds.
15.
In the charge-sheet, in all 9 assets standing in the name
of applicant no. 2 have been shown as culpable. Out of them, 8 assets
have been purchased in between the year 1989 and the year 1997 and
their admitted values are such as fall within the means and capacity of
applicant no.2 as disclosed by declared earnings in the Income Tax
Returns discussed above. There is only one asset acquired in the year
1978, which is the ninth asset shown to be culpable. It is an agricultural
land prized at Rs. 30,000/- in which she has half share along with her
father. But, the property has been purchased by her father. If such is
the position emerging from the material available on record,
there was
heavy burden upon prosecution to collect some evidence to show that
the applicant, for purchasing assets worth Rs.7,63,372/-,
used not to
resort to her own income but income of her deceased husband with an
intention to aid her deceased husband, original accused no.1, to commit
the alleged offence of collecting disproportionate assets punishable
under Section 13(2) of the Prevention of Corruption Act. However, upon
perusal of entire charge-sheet, I could not see any such material to
enable me to come to a conclusion that this applicant had aided original
accused no.1 to purchase assets in her own name and that this applicant
was in reality only a Benamidar, who allowed her name to be used as a
facade for the real transaction behind it, which was culpable. Learned
APP also could not show to me presence of any such material on record
of the case. If such is the case, I do not think that the allegations made
against the present applicant, even when accepted as they are, would be
sufficient to prima facie make out the offence alleged against her.
Learned Single Judge of this Court in the case of Smt.
16.
Kamlesh Jain w/o Sureschandra Jain v. C.B.I., Nagpur, [Cri. Appln. NO. 52
of 2006 decided on 9.3.2010] after considering the law laid down by the
Hon'ble Apex Court on the factors governing discharge of the applicant in
such cases as in the cases of (i) Century Spinning & Manufacturing Co.
Ltd. v. State of Maharashtra4 ; (ii) Niranjan Singh Karam Singh Punjabi v.
Jitendra Bhimraj Bijja5; (iii) Superintendent & Remembrancer of Legal
and (iv) Yogesh @ Sachin
Affairs, West Bengal v. Anil Kumar Bhunja6
Jagdish Joshi v. State of Maharashtra7 has summarised the para meters
which must be considered by the Court while dealing with an application
seeking discharge under Section 227 of Code of Criminal Procedure, as
follows :
“It seems well settled that at the Sections 227, 228
stage the Court is required to evaluate the materials and
4
5
6
7
AIR 1972 SC 545
AIR 1990 SC 1962
(1979) 4 SCC 274
AIR 2008 SC 2991
documents on record with a view to finding out if the
facts emerging therefrom taken at their face value
disclose the evidence of all the ingredients constituting
the alleged offence.
The Court may for this limited
purpose even at that initial stage
accept all that the
prosecution states as gospel truth even if it is opposed
17.
to common sense or the broad probabilities of the case.”
Following these parameters, I find that there is no material
available on record from which it can be said that there exists something
on record which prima facie constitutes the offence alleged against
applicant no. 2 or which even leads to a reasonable suspicion founded
upon some reasonable ground that the present applicant may have used
funds illegally collected by her husband for purchasing assets in her own
name and may have allowed her husband to use herself as a Benamidar
in those transactions.
Only by saying that the applicant has abetted
commission of offence under Section 13(2) read with Section 13 (1)(e),
would not be enough and some material would have to be shown by the
prosecution to substantiate the allegations. When the material collected
during the course of investigation is accepted as it is and is considered
together with the documents produced on record by applicant no. 2 for
the limited purpose of ascertaining whether or not there are sufficient
grounds to frame the charge, as held in the case of Niranjan Singh
Karam Singh Punjabi v. Jitendra Bhimraj Bijja, supra, the necessary
made out.
Therefore, even on the criterion of prima facie worth of the
prosecution case,
present applicant no. 2
from the case.
18.
ingredients of commission of offence of abetment of a crime are not
deserves to be discharged
In the result, I am of the view that this application
deserves to be allowed and is allowed accordingly. Trial of the case in
Special Case No.12 of 2003 as against original accused no. 1 Prakash
Ramaji Ambagade stands abated. Accused no. 2, the present applicant,
Smt. Nalini Prakash Ambagade, stands discharged from the case.
Property seized from custody of both the applicants
including the documents be released to the applicant, after usual period
of appeal is over.
JUDGE
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