Madhya Pradesh High Court
Subhash Kharate vs State Of M.P. on 3 January, 2000
Equivalent citations: 2000CRILJ1178, 2000(2)MPHT59
Author: S.B. Sakrikar
Bench: S.B. Sakrikar
JUDGMENT S.B. Sakrikar, J.
1. The accused-appellant has directed this appeal against the judgment dated 17-09-97 rendered by I ADJ and Special Judge, Indore in Special Case No. 01/94, thereby convicting the appellant for the offence punishable under Sections 5 (1) (e)/5 (2) of the Prevention of Corruption Act, 1947 (for short, 'the Act') and awarding the sentence of one year RI and Rs. 60000/- fine, in default of payment of fine, further imprisonment of three months.
2. Briefly stated, the case of the prosecution is that the appellant Subhash Kharate was appointed as Forest Ranger in the year, 1960 in the Forest Department of the State Government. After undergoing a training he was appointed on the regular post of Forest Ranger in the year, 1962. Thereafter, he continued in service and promoted as Sub-Divisional Officer (Forest) and posted at various places in the Forest Department. During his posting at Dhar on 14-09-87. Collector, Dhar wrote a letter Exh. P-62 to the Superintendent of Police (Special Police Establishment) Lokayukta Sanghatan, Indore, stating therein that the accused-appellant has acquired some immovable properties within the district, which in his opinion, are in excess of his known sources of income. On the report of the Collector, Special Police Lokayukta Sanghatan, Indore investigated the matter and found that agricultural lands purchased by the appellant in Dhar district are not falling under the definition of disproportionate properties as defined in the Act, but during the investigation, it was found that the appellant on 17-08-73. purchased a plot situated in Manoramaganj, Indore and, thereafter constructed a house thereon worth Rs. 1,50,000/-. According to the prosecution, this plot was purchased benami by the appellant in the name of his wife Smt. Sarla Kharate and the appellant has not given any explanation for the sources of funds invested in the construction of the aforesaid house at Manoramaganj, Indore. The Police Establishment, Lokayukta Sanghatan, Indore, on the aforesaid investigation registered Dehati Nalishi, Exh. P-59 against the appellant and on completion of investigations an offence under Sections 5 (1) (e)/5 (2) and Sections 13 (1) (e)/13 (2) of the Act was registered. The accused-appellant was taken into custody and challan was filed against the appellant in the Court of Special Judge, Indore.
3. On the basis of the evidence collected by the prosecution, learned Special Judge, on consideration framed charges against the appellant under Sections 5 (1)/5 (2) of the Act and in the alternative a charge under Sections 13 (1) (e)/13 (2) of the Act was also framed. The accused-appellant denied the charges and prayed for trial.
4. At the trial, the prosecution examined five witnesses and produced documents Exhs. P-l to P-64. The appellant-accused in his defence examined six witnesses and also filed documents Exhs. D-l to D-9.
5. Learned trial Judge, on appreciation of evidence found the appellant guilty for the offence and sentenced him as indicated above. Aggrieved by the impugned judgment of conviction and sentence, the appellant has filed this appeal.
6. The counsel for the appellant submitted that it is not in dispute that disputed house situated at Manoramaganj, Indore was purchased in the name of Smt. Sarla Kharate, wife of the appellant. As such initial burden lies on the prosecution to prove that the said house was purchased benami by the appellant in the name of his wife. The counsel for the appellant submitted that from the evidence of the prosecution the fact of benami purchase is not established, as such the appellant is not required to give any explanation for the source of the funds utilized for the purchasing of plot and the construction of the said house.
The counsel submitted that even if it is considered that a presumption under Section 5 (3) of the Act arises against the appellant to give explanation for the availability of funds, the accused-appellant, by his evidence has discharged the burden on the point of availability of funds. As such no offence under Sections 5 (1) (e)/5 (2) of the Act is proved against the appellant-accused beyond any shadow of doubt, and the appellant deserves acquittal of the charges levelled against him. The counsel relied on the decision of the Apex Court in case of Krishnanand Agnihotri v. State of M.P. (A.I.R. 1977 SC 796).
7. As against this GA appearing for the State submitted that from the evidence of the prosecution, it is proved that alleged house and plot situated at Manoramaganj, Indore was purchased and constructed by the appellant benami in the name of his wife Smt. Sarla Kharate. The appellant did not inform the Department under the Conduct Rules with regard to acquisition of the aforesaid plot and the house. The appellant did not give any reasonable explanation for the availability of funds for the purchase of the said plot and the construction of the house. In view of the earnings of the appellant from 1962 to 1983, the house constructed by the appellant definitely falls under the definition of "dis-proportionate properties" as defined under the Act and the trial Court has committed no error in convicting and sentencing the appellant for the alleged offence.
8. I have considered the submissions of the counsel for the parties and carefully perused the record as also the evidence of the prosecution and the defence available on record.
9. Before considering the evidence, I would like to consider legal aspect of the matter. In this case, it is not in dispute that the plot situated at Manoramaganj, Indore on which the disputed house was constructed, was purchased in the name of Smt. Sarla Kharate, wife of the appellant on 17-08-73 by registered sale-deed Exh. P-4 from one Malkhandas (D.W. 3) for a consideration of Rs. 7,420/-. It is also not in dispute that after purchase of the said plot, a permission for the construction of the house was also issued by the Corporation in the name of Smt. Sarla Kharate vide Exh. P-6. It is also not in dispute that as per valuation report. Exh. P-14, the cost of the house alongwith the plot is estimated to Rs. 1,03,730/-. As per the case of the prosecution the funds required for the purchase of the plot and the construction of the house were provided by the appellant and the alleged transaction is entered benami in the name of his wife. In this situation, the initial burden lies on the prosecution to prove that the alleged transaction was benami and the funds required for the purchase of plot and construction of the house were provided by the appellant. If the said fact is established by the prosecution then a rebuttable presumption arises against the appellant to give explanation with regard to the sources for the alleged amount spent on the purchase of the plot and construction of the house. In Krishnanand Agnihotri's case (supra) while considering the onus of proof for establishing benami transaction the Apex Court has held as under:
"The burden of showing that a particular transaction is benami and the owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact."
10. In the same case, for availability of presumption under Section 5 (3) of the Act, the Apex Court has also held that--
"Sub-section (3) of Section 5 consists of two parts. The first part sets out the facts which if proved give rise to a rebuttable presumption. It requires, in Order to the raising of this presumption that the accused must be shown to be in possession of pecuniary resources of property dis-proportionate to his known sources of income and he should be unable to satisfactorily account for such pecuniary resources or property. If these facts are shown to exist a presumption would be raised by the Court trying the offence that the accused was guilty of criminal misconduct in the discharge of his official duty. This presumption would of course be a rebuttable presumption and it would be open to the accused to establish that despite the disproportion of his pecuniary resources or property to his known sources of income, he is not guilty of criminal misconduct in the discharge of his official duty. The burden of displacing the presumption would be on the accused and if he fails to discharge the burden, he would be liable to be convicted for the offence under Sub-section (2) of Section 5."
11. What standard of proof is necessary in rebuttal, required under the cases in which a statute provides for the guilt of the accused, the Apex Court in Kaliram v. State of Himachal Pradesh (1974 CrLJ 1 = AIR 1973 SC 2773) has held that--
"There are certain cases in which statutory presumption arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as in normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true even though it is not positively proved to be true, the accused would be entitled to acquittal."
12. Similar view was also expressed by the Apex Court in case of Mansingh v. Delhi Adm. (AIR 1979 SC 1455) and held that--
"While dealing with the question of presumption under Section 4 of the Act it has been laid down that the accused is not required to prove his defence by the strict standard of proof beyond reasonable doubt but it is sufficient if he offers an explanation or defence which is probable and once this was done presumption under Section 4 stands rebutted."
13. On considering the evidence of the prosecution and the defence available on record of the case on hand, in the light of the law laid down by the Apex Court in the aforesaid decisions, in my opinion, the prosecution initially failed to establish that house No. 1 situated at Manoramaganj, Indore was purchased and constructed benami by the appellant in the name of his wife Smt. Sarla Kharate. In this respect the statement of prosecution witness Malkhandas is relevant. Malkhandas in his examination-in-chief has categorically stated that in the year 1969-70 he entered into an agreement to sell his plot situated at Manoramaganj, Indore to one Chandrasenrao Gawade (father of Smt. Sarla Kharate). He further stated that the talks with regard to sale of the alleged plot have taken place with Chandrasenrao Gawade. At the time of talks, Chandrasenrao Gawade stated that he is purchasing the alleged plot for his daughter as per wishes of his mother. The consideration of the alleged plot was also paid to him by Chandrasenrao Gawade and on his instructions, the sale-deed was executed in the name of Smt. Sarla Kharate. On perusal, it emerged that Malkhandas (P.W. 3) was declared hostile by the prosecution and was cross-examined with leave of the Court. On perusal of the overall statement of Malkhandas there appears no reason to disbelieve his statement on the fact that, "the talks of purchase of the plot were done by Chandrasenrao Gawade and the consideration of the said plot as agreed, was also paid by Chandrasenrao Gawade whereas the sale-deed was executed in the name of Smt. Sarla Kharate."
14. The law is well settled on the point that the statement of witness can not be thrown out in limine only on the ground that the witness was declared hostile and was cross-examined by the party-producing the witness. In case of Sat Paul v. Delhi Administration (A.I.R. 1976 SC 294) while considering the evidentiary value of the hostile witness the Apex Court has held as under:
"In any criminal prosecution when the witness is cross-examined and contradicted with the leave of the Court by the party calling him, his evidence cannot as a matter of law be treated as washed off the record altogether. It is for the Judge of fact to consider in each case, where as a result of such cross-examination and contradictions the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony."
15. In the light of the law laid down by the Apex Court in Sat Paul's case (supra) in my opinion, the statement of Malkhandas cannot be thrown out in limine, only on the ground that witness turned hostile. The fact of payment of sale price of the alleged plot by Chandrasenrao Gawade stand corroborated from the statement of Prabhakar Gawade (D.W. 3) son of deceased Chandrasenrao Gawade. The fact of purchase of plot in the name of Smt. Sarla Kharate by his father Late Chandrasenrao Gawade also gets support from the facts stated in the copy of the letter Exh, D-4-C filed by the appellant in defence. Ex. D-4-C dated 01-08-80 is a letter sent by Smt. Sarla Kharate wife of the appellant, to DFO Jhabua informing therein that as per wishes of his grand mother, her father Chandrasenrao Gawade purchased a plot in her name from one Malkhandas, situated at Manoramaganj, Indore. In this letter it is also stated that as per wishes of her grand mother, her father agreed to pay Rs. 70,000/- to her, for the construction of the house on the alleged plot. The receipt of this letter by DFO Jhabua stands duly proved from the statement of Rajendra Vyas (D.W. 4) and Gulam Nabi (D.W. 6). Letter Ex. D- 4-C was sent to DFO Jhabua much prior to the letter of complaint Exh. P-62 sent by the Collector Dhar to Police (Special Establishment) Lokayukta Sanghatan, Indore for making an enquiry against the appellant for acquisition of the disproportionate properties. In my considered opinion, learned trial Judge has committed an error in not considering the statement of Malkhandas (P.W. 3) solely on the ground that witness turned hostile and was cross-examined by the prosecution.
16. On perusal of the impugned judgment of the trial Court it emerged that the trial Court has committed an error in considering the defence case of the accused in a golden scale, applying the standard of proof required by the prosecution to prove the charges alleged against the accused. In view of the law laid down by the Apex Court in Kaliram's case (supra) and also in Mansingh 's case (supra), it is well settled that the onus to establish a particular fact on the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused, it is sufficient for the accused to offer an explanation in his defence, which is reasonable and probable.
17. In this case in view of the evidence as discussed above, the prosecution has failed to establish beyond reasonable doubt that the house situated at Manoramaganj, Indore was purchased benami out of the funds provided by the appellant in the name of his wife Smt. Sarla Kharate. As such in my opinion, the prosecution has initially failed to discharge the burden of proof that the accused-appellant has acquired such properties which are dis-proportionate to his legal source of income.
18. Even if it is considered that the house situated at Manoramaganj, Indore was purchased and constructed benami by the appellant in the name of his wife Smt. Sarla Kharate, then on considering the evidence available on record, with regard to availability of funds as alleged by the appellant, it cannot be held that the alleged house was acquired by the appellant in excess of his legal and known sources of income. As per case of the prosecution, the total earnings of the appellant from 1962 to 83 comes to Rs. 1007137/- and the valuation of the house situated at Manoramaganj, Indore was assessed to Rs. 1,03,730/-. As per the case of the prosecution on deducting the expenses of his family, the appellant would have saved Rs. 42,853/- during the aforesaid period. The appellant, in his defence tried to establish that he was having sufficient funds with him for the purchase of the alleged plot as also for the construction of the said house. The appellant in his defence tried to establish that on the death of his father in the year 1963, he received 40000/- rupees in cash and some gold ornaments by way of ancestral property. To prove the aforesaid fact, the appellant filed a letter Exh. D-l in his defence. Letter Exh. D-l is addressed to DFO Dewas written by the appellant informing therein that as a result of the death of his father recently he has received Rs. 40000/-cash and few gold ornaments from his father. The letter was in the form of information of acquisition of property, to the head of the Department. There appears no reason on record to disbelieve the facts stated in the aforesaid letter. In view of the facts stated in the letter Exh. D-l and taking into consideration the savings of the appellant, it cannot be said that the alleged plot and the house situated at Manoramaganj, Indore was acquired by the appellant in excess of his legal and known sources of income. On considering the case on this count, in my opinion, the appellant also deserves acquittal of the alleged charges.
19. In view of the aforesaid discussion and appreciation of the evidence, available on record as also the law applicable to the case on hand, in my considered opinion, the trial Court committed an error in convicting and sentencing the appellant for the offence punishable under Sections 5(1) (f)/5 (2) of the Prevention of Corruption Act, The impugned judgment and sentence awarded by the trial Court cannot be allowed to sustain and deserves to be set aside.
20. In the result, this appeal is allowed. The impugned judgment of conviction and sentence passed against the accused-appellant is, accordingly, set aside and the appellant stands acquitted of the charges under Sections 5 (1) (e)/5 (2) of the Prevention of Corruption Act, 1947. The accused-appellant is on bail. His bail bonds stand discharged. The fine in compliance to the impugned judgment, if deposited be refunded to the appellant.