The 'Explanation' to Section 13(1)(e) of the Prevention of Corruption Act, 1988, does not take away the opportunity of a public servant to explain his income, only for the reason of not intimating to the Government.

JUDGMENT :

This Criminal Appeal is filed by the appellant/Accused officer challenging the conviction recorded by the Additional Special Judge for SPE & ACB Cases in CC.No.15 of 1994, dt.11.10.2006, under Section 13(1)(e) r/w. 13(2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’) for being in possession of disproportionate assets of Rs.1,99,251.67 ps.

2. The ACB filed charge sheet against the appellant/accused officer who was worked in the Medical and Health Department in various capacities during the check period from 04.07.1969 to 27.05.1991.

3. During the course of investigation, ACB found that the income of the appellant/accused officer was Rs.3,89,563/-during the check period and the expenditure incurred was Rs.2,79,072/-. The likely savings was Rs.1,09,491/-. However, the accused was found in possession of assets worth Rs.6,97,551/-. Accordingly, there was disproportion of Rs.5,87,060/-. The appellant was not in a position to explain for the disproportion of assets held by him for which reason, the charge sheet was filed.

4. The Prosecution examined PWs.1 to 27 and marked Exs.P1 to P42. The appellant/accused officer examined 7 defence witnesses DWs.1 to 7 and marked Exs.D1 to D13.

5. Having considered the evidence on record, the learned Special Judge came to a conclusion that the total assets was valued at Rs.5,19,149.82 ps. (ACB value Rs.6,97,551/-). The income, additional income, gifts etc was Rs.5,02,825.15 ps. (ACB value Rs.3,89,563.80 ps.). The expenditure arrived at was Rs.1,82,927/- (prosecution value Rs.2,79,072/-). Accordingly, the learned Special Judge found that the appellant/accused officer was in possession of disproportion assets worth Rs.1,99,251.67 ps.

6. The learned counsel appearing for the appellant would submit that the error committed by the learned Special Judge was not including the additional income-item No.2 to an extent of Rs.23,435/- which was income received through gift cheques vide Exs.D1 to D4 and also proved through the witnesses PWs.15 and Ex.P25. The third item of additional income according to the appellant officer was Rs.2,20,395.10 ps. whereas the Court arrived at Rs.95,675.60. Learned Counsel submits that it is an admitted fact that there were foreign remittances to an extent of Rs.2,20,395.10 ps, according to PW18, PW26 and Ex.D7. The learned Special Judge, though, found that the amounts were received through foreign remittances, accepted only an amount of Rs.95,675.60 ps. The reason being the remittances of Rs.95,675.60 ps. were received prior to the insertion of ‘Explanation’ to Section 13(1)(e) of the Prevention of Corruption Act. Having found that the said amounts were remitted and received from the son into the account of the wife of the appellant, the learned Special Judge ought to have considered the entire remittances under the income of the appellant, which is Rs.2,20,395.10 ps.

7. He relied on the Judgment of Honourable Supreme Court in Ashok Tshering Bhutia v. State of Sikkim, 2011 CRL.L.J 1770. In the said Judgment the Honourable Supreme Court was dealing with case of disproportionate assets. It was found that the accused officer had not filed form in accordance with the mandatory requirement of Rule-19 of Sikkim Government Servants Conduct Rules, 1981. The Honourable Supreme Court held that in the event of failure to submit such returns, the accused would be liable to face disciplinary proceedings under the service rules applicable at the relevant time and the accused therein could not be fastened with criminal liability only for want of compliance of such requirement of the rules.

8. Learned Counsel draws parallels with the judgment and argued that the amount of Rs.1,24,719.50 ps should have been included. Not informing the department could be tried by departmental action and not in a criminal case.

9. He also relied on the Judgments reported in State, Inspector of Police, Visakhapatnam v. Surya Sankaram Karri, 2006 CRI.L.J 4598; S.Kurminaidu v. State of A.P., 19