IMPORTANT POINT
Acquisition of disproportionate assets - Even a non-public servant can be convicted under Section 109 of IPC read with Section 13(1)(e) of Prevention of Corruption Act, 1988.

JUDGMENT :

SUDHANSHU DHULIA, J.

1. Leave granted.

2. The appellant before this Court, who was working as an Assistant Superintendent in the Chennai Port Trust assails the judgment and order dated 10.01.2018 passed by the High Court of Madras (hereinafter ‘High Court’) which has sustained her conviction and sentence under section 109 of the Indian Penal Code (hereinafter ‘IPC’) read with Section 13(2) and Section 13(1)(e) of the Prevention of Corruption Act 1988 (hereinafter ‘1988 Act’). The co-accused (husband of the appellant, at the time) was also convicted and sentenced by the same order under section 13(2) and 13(1)(e) of the 1988 Act.

3. In June 2009, an FIR was registered against the appellant’s husband alleging that he had illegally demanded and received Rs. 3000 for handing over a cheque relating to a motor accident claim. While investigating the FIR, certain raids were conducted at the appellant’s husband’s house and on 31.12.2009 another FIR under section 13(2) read with 13(1)(e) of the 1988 Act was registered against the appellant’s husband, while he was serving as a public servant on the post of Divisional Manager in United India Insurance Co. Ltd. When the search was conducted on the residential premise of the appellant’s husband, various incriminating documents relating to movable and immovable property in the name of the appellant and her husband were found. Primarily, it was alleged that during the check period between 1.09.2002 and 16.06.2009, the appellant’s husband had acquired movable and immovable properties which were disproportionate to his income. The properties were in the appellant’s name, as well as of her husband.

4. On 18.12.2010, a chargesheet was filed and the appellant was charged under section 109 IPC read with 13(2) and 13(1)(e) of the 1988 Act, while her husband was charged under section 13(2) read with 13(1)(e) of the 1988 Act, with details of the various movable and immovable assets acquired by them during the check period. It was alleged that disproportionate assets amounting to Rs. 60,99,216 have been acquired by the accused.

5. After perusing the evidence on record, the Trial Court vide order dated 27.05.2013 found the appellant and her husband guilty and held that the appellant’s husband has acquired disproportionate assets to the extent of Rs. 37,98,752 during the check period beyond his known sources of income. The appellant was held guilty of abetting her husband in acquiring such disproportionate assets. The appellant’s husband was convicted under section 13(2) read with 13(1)(e) of the 1988 Act and sentenced to 2 years of R.I. Whereas the appellant was sentenced under section 109 IPC read with 13(2) and 13(1)(e) of the 1988 Act and sentenced to 1 year of R.I.

6. Both the appellant and her husband preferred their criminal appeal against the above order of conviction and sentence. On 10.01.2018, the High Court dismissed the appeal and found no ground to interfere with the findings of the Trial Court. While dismissing the appeal, the High Court observed that although there are minor discrepancies in the calculation of known sources of income of the accused, the disproportionality of assets is hugely excessive. Specifically the High Court observed that there is no material to show that the assets acquired during the check period, were acquired from their known source or sources of income, and even if the explanations provided by the accused is accepted it does not still remove the disproportionality. Now the appellant is before this Court.

7. The case of the appellant is that the courts below have grossly erred in convicting her for abetting her husband (the main accused) in acquiring disproportionate assets during the check period, and that any property disproportionately purchased by her husband in her name during the check period, cannot be held to be disproportionate in the hands of the appellant. Further, the appellant would argue that the co- accused is no longer her husband and he has s