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2011 Supreme(Bom) 1387
High Court of Judicature at Bombay
R.C. CHAVAN
Rajendra Jonko
Versus
The Superintendent of Police & Another
CRIMINAL APPEAL NO.270 OF 2001
Decided On : 25-11-2011
For the Appellant:R.M. Agarwal, Senior Counsel with Prakash Naik, Advocate.
For the Respondents: R1, Milind Sawant, Public Prosecutor for CBI, R2, Ms
P.P. Bhosale, Addl. Public Prosecutor.
Headnote:Prevention of Corruption Act, 1947 - Section 5(1)(e), (2)-Assets dispro porationate to known source of income-Possession of-Assets held in names of father, wife and sisters-Failure of accused to prove that financial position of father was good-Accused also failed to prove that other members had their own source of income-Offence under Section 5(1)(e), (2) made out.-The 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 prose-cution. Akundi Sundaramma was paid a sum of Rs. 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 Bank of India, Jaraikela at the relevant time. On 13.3.1985 and 14.3.1985, Nirmala, the appellants wife, had issued two cheques in favour of Akundi Sundaramma for Rs. 49,500/- and Rs. 50,500/- respectively. They were drawn on Nirmalas account No. 9897 from Chakradharpur Branch. The amount came from a draft for Rs. 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 amount No. 9897 from where the consideration went for the purchaser of property of Akundi Sundaramma. The 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 Rs. 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 Branch, Mumbai. On the same day another draft in the name of Nimala Jonko and Munni Jonko for Rs. 52,500/- was issued by the State Bank of India. Fort-Bombay, payable at State Bank of India, Jaraikela. All these drafts have identified in the course of evidence of PW 28 Sujit Moitra. The draft for Rs. 52,500/- was credited in Nirmala and Munni’s account on 4.3.1985 vide extract of account Exhibit 132. The 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 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 appellants father Birsingh Ho was rightly rejected by the trial Judge as an eyewash.
Prevention of Corruption Act, 1947 - Section 5-A(1)-Investigation-Authorization-Only one I.O. authorised to conduct investigation-However, investigation conducted by two officers-Authorization order shows that officer concerned authorised to conduct investigation with assistance of other officers-Held-Absence of authorization not affects admissibility of evidence collected by unauthorized officer-As investigation by said unauthorized officer not shown to be unfair. [2007 All MR (Cri) 555 (SC)-Relied on.]-The counsel for the appellant had an objection to receipt of evidence of PW 30 Raman Tyagi. According to the 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 authorization 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 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 been employed for the purpose of carrying out investigation. The counsel for the appellant relied on a judgment of the Supreme Court in State Inspector of Police Vishakhapatnam v. Surya Shankaram Karri, reported in 2007 All MR (Cri) 555 (SC) on the question of authorised investigation. He submitted that Tyagi had no authority to investigate into 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 PW 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 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.
Prevention of Corruption Act, 1947 - Section 6-Prevention of Corruption Act, 1988, Section 19-Sanction for prosecution-Offence alleged against Collector of Excise-Sanction granted by under Secretary to Government-Nothing on record to show that under Secretary is incompetent to accord sanction-Sanction accorded by him valid.-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 judgment 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 Cr ILJ 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 Cri LJ 2714 : 2005 All MR (Cri) 1143. There is nothing to show that there is any defect in the sanction and therefore the objections on this count have to be rejected.
Trade Marks Act, 1999 - Section 54-Benami transaction-Proof of-Assets held in names of father, wife and sisters-However, most of receipts issued either in name of accused or his wife-Charge-sheet referred to assets as belonging to accused-Word ’Benami’ nowhere used-Held-Evidence on record, showing that assets acquired from income of accused-Non use of word ’Benami’ immaterial-Benami transaction proved.-The 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 person who were shown to be the holders of the asset 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 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 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.
Prevention of Corruption Act (49 of 1988) - Section 5(1)(e) and 5(2) - Conviction and sentence under. Where appellant had parked assets disproportionate to his income, in name of his family members and failed to give explanation about assets therefore appellant rightly convicted and sentenced under Section 5(1)(e) and 5(2) of Act.
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 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 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. 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:-
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 (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 siste
