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2013 Supreme(Gau) 669
Gauhati High Court
Indira Shah, J.
Thirmal Talukdar -Appellant
Versus
State of Assam (CBI) -Resopndent
Crl. Appeal No. 89 of 2012
Decided On : 05-12-2013
For the Appellant :Mr. T.C. Chutia, Mrs. B.D. Sarma, Mr. D.K. Roy and Ms. M. Chutia, Advocate
For the Respondents: S.C., CBI
Headnote:
Prevention of Corruption Act, 1988 – Sections 13(2) r/w13(1)(e) – Criminal Trial - Assets - Acquired assets to the tune of Rs. 28,63,822/- (approx.) in form of land, building, Maruti Car, costly household items – Appeal against conviction - Appellant, was a LDC and subsequently promoted as UDC in office of the Regional Passport Officer, Guwahati, allegedly acquired assets to tune of amount in form of land, building, Maruti Car, costly household items, Investment Certificates etc. onwards, which was grossly disproportionate to his known sources of income - House of accused appellant was searched on 08.08.2002 in connection with RC-15(A)/2001 -SHG against his known sources of income - After allowing probable expenditure and also probable savings prior to 01.01.1990 i.e. beginning of check period, appellant was found in possession of assets disproportionate to his known sources of income amount - Held, It was observed that if amount involved relatively small, if it is a single isolated instance and there is no evidence of habitual bribe taking or assets disproportionate to the known sources of income, that sanctioning authority will have to carefully evaluate as to whether interest of justice will not be adequately served by taking disciplinary action rather than by hardening courts with full-fledged prosecution in a case of relatively trivial facts - Court finds that investigation of case was not fair, not authorized to conduct - Investigating Officer was not authorized in terms of proviso to Section 13 of Act to investigate case for offence committed under clause (e) of Section13 of Act - Conviction of accused under Section 13(1)(e) set aside - Appeal is allowed.
This is an appeal against the judgment and order dated 30.05.2012, passed by the learned Special Judge, C.B.I., Assam in Special Case No. 01/2005, convicting the accused appellant under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 ('PC Act', in short) and sentencing him thereby to undergo rigorous imprisonment for 4 years with fine of Rs. 5,000/- in default of payment of fine, further rigorous imprisonment for one month. Heard Mr. T.C. Chutia, learned counsel for the appellant as well as Mr. P.N. Choudhury, learned Standing Counsel appearing on behalf of the C.B.I.
2. The appellant, herein, was a LDC and subsequently promoted as UDC in the office of the Regional Passport Officer, Guwahati, allegedly acquired assets to the tune of Rs. 28,63,822/- (approx.) in the form of land, building, Maruti Car, costly household items, Investment Certificates etc. from 01.01.1990 onwards, which was grossly disproportionate to his known sources of income. The house of the accused appellant was searched on 08.08.2002 in connection with RC-15(A)/2001 -SHG against his known sources of income of Rs. 7,23,032/-. After allowing the probable expenditure of Rs. 2,41,010/- (approx.) and also probable savings of Rs. 53,176/- (approx.) prior to 01.01.1990 i.e. the beginning of the check period, the appellant was found in possession of assets disproportionate to his known sources of income to the tune of Rs. 23,28,624/- (approx.) as on 08.08.2002. Hence, a case was registered and the Inspector of CBI, ACB, Guwahati, investigated the case.
3. On completion of investigation, charge sheet under Section 13(2) read with Section 13(1)(e) of PC Act was submitted against the accused appellant. The accused pleaded not guilty to the charge framed against him under Section 13(2) read with Section 13(1)(e) of PC Act and claimed to be tried.
4. During investigation, the prosecution examined altogether 14 witnesses and exhibited 187 No. of documents in support of its case. One witness was examined as Court witness. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded, wherein, he denied the allegations levelled against him and pleaded that he is innocent. However, he declined to adduce any defence evidence. The learned Trial Court, on conclusion of the trial, held that the total savings of the accused during the check period from 01.01.1990 to 08.08.2002 was Rs. 4,89,574.52 and after deducting of 1/3 of his total income as compulsory expenditure towards household maintenance of his family, the amount comes to Rs. 4,76,118/-, on adding loan amount of Rs. 13,456.52, the amount remain with the accused but he (accused) acquired assets during that period to the tune of Rs. 19,00,141.70. The accused failed to prove that the assets found was not disproportionate to his known sources of income. Therefore, the value of assets both movable and immovable acquired by the accused within the check period was more than 10% of his known sources of income and as such, it is disproportionate to his income. Accordingly, he was held guilty under Section under Section 13(2) read with Section 13(1)(e) of PC Act.
5. It is submitted by the learned counsel for the appellant that the learned trial court considered the income of the appellant during the check period from 01.01.1990 to 08.08.2002 whereas, the appellant was in service with effect from 01.06.1985, his income from 01.06.1985 prior to 01.01.1990 was not considered. Had the income of the appellant been taken into account from the date of joining of his service, the alleged acquisition of properties by the appellant, would not have been disproportionate to his known sources of income. That apart, the income of his wife was not considered along with the income of the accused appellant. The value of the property of the appellant was also not properly assessed. The provisions of Section 17 of the PC Act was violated as the investigation of the case was done by th
