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2018 Supreme(Bom) 1407
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
MANISH PITALE, J.
Shri. Narayan Ramchandra Mante (Died) Through Legal Heirs & Ors. – Appellants
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 108 of 2001
Decided On : 12-09-2018
For the Appellants :Mr. Adwait S. Manohar & Mr N.A. Gaikwad, Advocates
For the Respondent: Mrs. Swati Kolhe, APP.
Headnote:
Criminal Procedure Code,1973 - Section 313 - Prevention of Corruption Act, 1947 - Sections 5(1)(e) r/w 5(2) - Investigation - Claim amounts spent by appellant - Appellants herein stood convicted and sentenced Sections Prevention Corruption Act hereinafter referred to as said Act - While original accused was sentenced to suffer rigorous imprisonment for two years and to pay fine other accused were sentenced to pay fine each - Original accused appellant this appeal died during pendency of this appeal and consequently his legal representatives were brought on record for pursuing appeal on his behalf before this Court – But for sake of convenience original accused although deceased is being referred to as appellant in this judgment - Appellant joined service in Police Department as Constable in - He was then promoted to post of Head Constable in and thereafter he was sent for training as Police Sub-Inspector - Upon completion of training appellant was posted as Police Sub-Inspector in district and thereafter he served in said capacity at different places - While he was working as Police Sub-Inspector at enquiry was initiated against him on suspicion of having acquired assets beyond known sources of his income – Held, Failure of putting all incriminating circumstances to accused in present case has also fatally affected prosecution case which was not appreciated by trial court at all - Although as many as witnesses were examined by prosecution only material witnesses referred to and relied upon by trial court were sanctioning authority police constable who claimed to have placed on record accounts pertaining to expenditure incurred in construction of house property at Investigating Office himself - Evidence which trial Court has placed reliance regarding alleged amounts spent by appellant for construction said house property also shows that basis for claiming amounts spent by appellant is not supported by cogent evidence on record - It is claimed that details of expenditure were recorded in diary which has no logical basis - Some of entries made towards expenditure of construction were admittedly done by mason who was never examined by prosecution - Thus evidence of said could certainly not have been made basis for arriving at finding pertaining to alleged amounts spent by appellant for construction of said house property - Evidence of Investigating Officer shows that there was material collected by him regarding approximate income of appellant from agricultural lands - Despite fact that such material was on record it was not taken into consideration by trial court to examine as to what were sources of income appellant and what could be actual figure of income over period from – Thus there was lack of oral and documentary evidence on record in present case to arrive at any logical conclusion regarding figures pertaining to income expenditure savings and consequently extent of assets attributable to appellant In these circumstances there was no way in which it could be examined as to whether assets of appellant could be said to be disproportionate to his known sources of income - Yet trial court went ahead to convict and sentence appellants by erroneously accepting claims of prosecution - There was sufficient material on record to show that prosecution case itself was not clear on arriving at specific figures all aforesaid heads - Consequently very basis prosecution case crumbled which trial Court completely failed to appreciate while passing impugned judgment and order – Appeal allowed
By this appeal, Judgment and Order dt. 26.04.2001 is challenged, whereby the accused (appellants herein) stood convicted and sentenced under Sections 5(1)(e) r/w 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as “the said Act”). While the original accused No. 1 was sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 50,000/-, the other accused were sentenced to pay fine of Rs. 5,000/-, each. The original accused No. 1 i.e. appellant No. 1 in this appeal died during the pendency of this appeal and consequently his legal representatives were brought on record for pursuing the appeal on his behalf before this Court. But, for the sake of convenience, the original accused No. 1, although deceased, is being referred to as appellant No. 1 in this judgment.
2. Appellant No. 1 joined service in the Police Department as Constable in 1962. He was then promoted to the post of Head Constable in 1971 and thereafter, he was sent for training as Police Sub-Inspector. Upon completion of training, the appellant No. 1 was posted as Police Sub-Inspector in district Yavatmal and thereafter, he served in the said capacity at different places. While he was working as Police Sub-Inspector at Pusad, an enquiry was initiated against him on the suspicion of having acquired assets beyond the known sources of his income.
3. In November-1986, an enquiry report was submitted to the Director of Anti-Corruption, who granted permission on 26.11.1986 to lodge a complaint (Exh. 508) against the appellant No. 1, leading to registration of FIR against the appellant No. 1 and other appellants under the provisions of the said Act. The other appellants are the wife, uncle and relatives of the appellant No. 1. On the basis of the said complaint registered against the appellants, house searches were conducted and material was recovered including gold & silver articles and documents. The report of searches was placed before the court of Chief Judicial Magistrate, Buldhana on 20.12.1986. On the basis of the said material, an application was moved for obtaining sanction for prosecution of appellant No. 1.
4. On 20.03.1991, the Dy. Inspector General of Police, Aurangabad Range, passed the sanction order for prosecution of the appellant No. 1 under the provisions of the said Act. It was recorded in the said sanction order [Exh. 460] that, the total income of the appellant No. 1 from all his known sources was Rs. 4,71,866.84 and total expenditure was Rs. 2,63,386.27. It was estimated that the probable saving of the appellant No. 1 was Rs. 2,08,480.57, but, during investigation, he was found to be in possession of assets worth Rs. 12,44,158.72/-. Consequently, it was concluded by the said sanctioning authority that, the appellant No. 1 was found to be in possession of assets worth Rs. 10,35,678.15, being disproportionate to his known sources of income. On this basis, the said sanctioning authority was satisfied that, the appellant No. 1 deserved to be prosecuted and accordingly, the said sanction order dt. 20.03.1991 [Exh. 460] was passed.
5. The prosecution examined a large number of witnesses totaling 38 and it relied upon more than 600 documents to prove its case against the appellant No. 1 and other accused persons. It was the endeavour of the prosecution to demonstrate that the appellant No. 1 had purchased properties in the name of his uncle and other relatives and that gold and silver articles were also purchased, the total value of which was well beyond the known sources of income of the appellant No. 1. It was the case of the prosecution that the other accused had connived with and associated themselves with the appellant No. 1, in order to assist him in gathering such assets well beyond the known sources of his income.
6. The prosecution relied upon oral and documentary evidence to claim that, when the appellant No. 1 entered service in the year 1962, he did not have any agricultural land in his family, but,
