The court clarified that for a conviction under the Prevention of Corruption Act, the prosecution must demonstrate clear excess assets beyond known income, while the burden of explanation shifts to the accused once a prima facie case is established.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. S. Bharali, learned counsel for the appellant. Also heard Mr. M Haloi, learned Special Public Prosecutor, CBI.

2. The challenge:

The present appeal is directed against the judgment and sentence dated 05.08.2008, passed by the learned Special Judge, CBI, Assam, Guwahati in Special Case No. 85/2004 (Old case No. Spl. 4(c) 2000), whereby the appellant was convicted under Sections 13 (1)(e) of the Prevention of Corruption Act, 1988 and was sentenced to undergo for 2 (two) years of simple imprisonment with a fine of Rs. 5,00,000/-, in default of payment of fine, to undergo further imprisonment for 1 (one) year.

3. The Background:

I. The prosecution was launched by Central Bureau of Investigation (CBI), against accused Sarat Ch. Borah, an Assistant Engineer, CPWD, Guwahati, based on alleged source of information registered a case being Case No. RC.28(A)/96-SHG, alleging that the said Sarat Ch. Borah acquired huge wealth during his service tenure from 1971 to 1986, which was not in proportion to what he then earned, from out of his all known income sources and had failed to account the same satisfactorily.

II. The Investigating Authority investigated the matter and subsequently, after completion of the investigation, filed charge-sheet against the appellant under Section 13 (2), read with Section 13 (1)(e), of the P.C. Act, 1988. The learned court below framed formal charges under Section 13 (1)(e), P.C. Act, 1988 and when the appellants claimed to be not guilty, the trial commenced.

III. To bring home the charges against the appellant, the prosecution examined as many as 22 witnesses. The accused was examined under the provision of Section 313 Cr.P.C. and thereafter the accused led evidence in support of defence by examining five witnesses including himself.

IV. After considering the materials, the learned Special Judge passed the impugned judgment of conviction and imposed the sentence as recorded hereinbefore. Being aggrieved, the present appeal is preferred

4. The evidence :

Before considering the legality and validity of the judgment impugned, let this court first analyze the evidences lead by the prosecution as well as by the defence in support of their respective projected case.

I. PW1 deposed that he retired as Director General, CPWD in the year 2000 and he was the Disciplinary Authority of Group B officer of CPWD. He proved Ext. 2 as the sanction for prosecution of the accuser for prosecution and proved his signatures as Ext. 2(1) to 2(10). During his cross-examination, he denied the suggestion that he did not check and verify all the materials placed before him before according sanction. He also denied the suggestion that the appellant had no disproportionate assets in comparison to his known source of income. During cross, he also denied that he signed the draft sanction order without going through the same placed by the CBI.

II. PW2 is a search witness. In his deposition he stated that during 1996 he was serving as Sr. Personnel and Administrative Officer, Guwahati refinery. On 27.07.1996, CBI Personnel searched the house of accused and during search he was present and the CBI personnel prepared the search list, seizure list and also prepared inventory of articles and other documents. He further deposed that he signed on those seizure list and inventory memo. He proved Ext. 3 in four sheets as the search list and his signatures as Ext. 3(1) to 3(4). He further deposed that during search Sr. Hindi Officer Sri SK Tripathi was also present. He proved Ext. 3(5) to 3(8) as the signature of said Tripathi. He also proved Ext. 4 to 6 sheets as the inventory prepared by CBI wherein Ext. 4(1) to 4(6) were his si