Gauhati High Court
Pozir Uddin Ahmed vs The Union Of India on 5 November, 2013
Author: I A Ansari
Bench: I A Ansari
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR;
TRIPURA; MIZOAM & ARUNACHAL PRADESH)
Criminal Appeal No. 09/2010
Pozir Uddin Ahmed
- Appellant
- Versus -
Union of India (represented by CBI)
- Respondent
PRESENT HON'BLE MR JUSTICE I A ANSARI Advocates present:
For the appellant : Mr. A.C. Borbora, Sr. Advocate,
Mr. P. Kataki, Advocate
For the respondent : Mr. P.N. Choudhury,
Standing Counsel, CBI.
Date of hearing : 05.11.2013
Date of judgment : 05.11.2013
JUDGEMENT AND ORDER
[ORAL]
(Ansari, J)
This is an appeal against the judgment and order, dated 16.01.2010, passed, in Special Case No. 42 of 2004, by the learned Special Judge, Central Bureau of Investigation (in short, CBI), Assam, Guwahati, convicting the accused-appellant under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (in short, 'the PC Act'), and sentencing him to undergo simple imprisonment for a period of three years with fine of Rs.5,00,000/- and, in default of payment of fine, undergo simple imprisonment for a further period of 1 ½ years.
2. The case of the prosecution may, in brief, be described as under:
(i) Superintendent of Police, CBI (Anti-Corruption), Guwahati, lodged an Ejahar, on 18.02.97, alleging, inter alia, that while appellant had been working as Manager, Hindustan Fertilizer Corporation Ltd (hereinafter referred to as, 'the HFCL'), from the year 1969 to 1994, he had amassed assets disproportionate to his known source of income and, in this regard, it 2 Criminal Appeal 09/2010 was alleged that though income of the appellant, from all known sources, during his service career, was Rs,12,67,035/-, he was found to have amassed assets to the tune of Rs.7,40,641/- upon excluding expenses, which he might have had incurred. Treating the said Ejahar as First Information Report (in short, FIR), RC No.4(A)/97 SHG came to be registered under Section 13(2) read with Section 13(I)(e) of the PC Act. The Investigating Officer, on completion of investigation, laid charge sheet under the said penal provisions.
(ii) During the course of investigation, appellant's house was searched and many documents, such as, passbook, cheque book, fixed deposits and insurance policies were seized. In terms of the charge sheet, the period, which had fallen for scrutiny of the appellant's assets, started from 01.01.1981 to 18.03.1997 and though the said period started with a small sum of Rs.14,621/-, it ended, in terms of the statement furnished to the charge sheet, with a sum of Rs.33,78,054.24/-, which included the value of one RCC three storied building valued at Rs.16,91,813/-. According to statement C, the detail income and other receipts, during the check period, was Rs.23,96,553.16/-. According to the statement D, attached to the charge sheet, the expenditure, during the check period, was Rs.9,95,526,31/-. The investigating officer concluded that value of the total assets, found to be disproportionate to the known sources of income of the appellant, was Rs.19,63,106.39/-.
3. At the trial, when a charge, under Sections 13(2) read with Section 13(I) (e) of the PC Act, was framed, the appellant pleaded not guilty thereto.
4. In support of their case, prosecution examined altogether 50 witnesses. The accused was, then, examined under Section 313 Cr.PC and, in his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, the case of the 3 Criminal Appeal 09/2010 defence being that the accused never possessed any asset disproportionate to his known sources of income. In support of its case, defence, too, examined six witnesses including the appellant.
5. Having, however, found the accused-appellant guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused, as a convicted person, has preferred this appeal.
6. I have heard Mr. A. C. Borbora, learned Senior counsel, assisted by Mr. P. Kataki, learned counsel, for the appellant, and Mr. P.N. Choudhury, learned Standing Counsel, CBI.
7. Upon hearing the learned counsel for the parties concerned and perusal of the materials on record, what attracts the attention of this Court, most prominently, is that in the case at hand, the informant, namely, Superintendent of Police, CBI, Guwahati, was not examined at the trial, though the informant was not merely a formal witness inasmuch as he had, as the evidence on record discloses, not accepted the initial valuation, which had been submitted to him and directed valuation to be made afresh by taking the year 1965 as the base year. Why the valuation was not accepted, it has not been answered by the prosecution nor is there any explanation discernible, in this regard, from the evidence on record. It is also of some significance to note that PW5, who was Executive Engineer of CPWD, has deposed, in his cross-examination, that he had been instructed by the Superintendent, CBI, that the year of construction should be taken as 1965, 1986 and 1992 and he had accordingly taken the cost index as per the CPWD Schedule of the year 1965, 1986 and 1992. Why the base years were fixed at 1965, 1986 and 1982 have also not been answered by the prosecution 4 Criminal Appeal 09/2010 nor is there any explanation available from the evidence on record in this regard. The ramifications, as Mr. Borbora, learned Senior counsel, has rightly pointed out, was too obvious inasmuch as the cost assessment difference between the first valuation and the second one was as much as Rupees Eleven lakhs.
8. PW5 has deposed that while working as an Executive Engineer in CPWd, he was engaged by the SP, CBI, to do valuation of the land and building of the land of the appellant and, accordingly, he submitted a valuation report, but not being satisfied with the valuation report, so submitted, the SP, CBI, instructed him to make re-assessment as indicated above.
9. In the circumstances indicated above, non-examination of the SP, CBI, was a fatal omission and it is tantamount to withholding a material witness so that the explanation, which he owed as to why he had not accepted the valuation report (Ext.23), remains unanswered.
10. Coupled with the above, the learned trial Court has relied upon the valuation report submitted by PW5. It is, in this regard, noteworthy that in terms of the CPWD Manual vis-à-vis Assam Public Works Department's Schedule, rates of construction of a building are different and, in terms of the CPWD Manual, the cost price is higher in the schedule of the Assam Public Works Department. Why the valuation was done in terms of the CPWD Manual and not in terms of APWD Schedule of rates of construction remains unknown and unanswered.
11. The learned trial Court has disbelieved the evidence given with regard to the valuation of the immovable property of the appellant by DW4. The reason assigned for not believing DW4 is that he is a neighbour of the appellant and, therefore, an interested witness. There is not even an iota of 5 Criminal Appeal 09/2010 evidence to show that DW4 was an interested witness. Merely because of the fact that DW4 happened to be a neighbour, his evidence could not have been discarded by terming him as an interested witness without any convincing reason having assigned therefor. There is nothing in law that a prosecution witness's evidence has to be rated higher than the evidence of a defence witness. All witnesses, under the law, stand on the same footing and, it is their intrinsic value, which shall determine the outcome of the trial and not the fact whether the witness has been produced by the prosecution or by the defence.
12. Situated thus, it is clear that there are two valuation reports with regard to the immovable properties of the appellant and, in such circumstances, the learned trial Court ought to have either got the valuation assessed afresh or rely on the valuation report, which supported the case of the defence, particularly, when, as already indicated hereinbefore, there is no material to show that the evidence of DW4 is the evidence of an interested witness.
13. Moreover, it has not been disputed, at the trial, that the appellant purchased land, in the year 1981, on payment of consideration of Rs.1,20,000/-. It has also not been in dispute that at the time, when the appellant purchased the land, ground floor was already constructed, the first floor had its roof complete and the second floor columns stood erected. Since the amount of consideration paid by the appellant was never disputed, the land and house, standing thereon, could not have been assessed at a value higher than Rs.1,20,000/- as on the date of purchase.
14. In the circumstances, indicated above, it becomes clear that apart from the fact that prosecution had failed to explain as to why 1965 was opted to be made as the base year for assessment of the constructional value of the 6 Criminal Appeal 09/2010 appellant's immovable property, it also becomes clear that 1965 could not have been made as the base year for construction inasmuch as valuation of the property, when purchased by the appellant, was Rs.1,20,000/-. Similarly, why the year 1986 or 1992 were selected as base years for making the assessment by the SP, CBI, remains a mystery. Over and above these factors, why valuation was made on the basis of the CPWD Manual and not on the basis of APWD schedule of rates has also not been addressed by the learned trial Court.
15. What can also not be ignored is that the appellant produced a register, which, according to the appellant, contained the day-to-day expenses, which he had incurred during the course of construction of the building. The entries in the register have been totally discarded by the learned trial Court despite the fact that prosecution, nowhere, challenged the correctness of the entries as concocted or falsified. Further-more, the valuation, submitted by PW5, could not have been implicitly relied upon by the learned trial Court in the face of the disquieting features, which have been pointed out above, and it was, in such circumstances, the duty of the learned trial Court to make its own assessment in the facts and attending circumstances of the case.
16. Statement A contained the computation of the assets of the appellant purchased during the beginning of the check period. The learned trial Court also failed, as has been rightly pointed out on behalf of the appellant, in computing the assets reflected in statement A, B, C and D, which read as under:
"Statement A i.e., the assets in the beginning of the check period:
i) The total salary income from 20.11.61 to 3.5.69 vide Ext. M-1 and M-2 and Petitioner-8 is Rs.38,060.79/-.
ii) Salary from FCI/HFC from May, 69, to December, 81, is Rs.1,27,998.23.
iii) The P.F. loan received is Rs.8,472.52/- as on 4.1.79.
iv) Conveyance and advances Rs.15,000/- on 20.08.79.7 Criminal Appeal 09/2010
v) Income tax refund Rs. 170/ -Ext.X.
vi) The house inventory prepared vide Ext. 126. It may be pointed out that vide Serial No.1, 2, 4, 12, 13, 14, 15, 77, 37, 53, 55 and 64 were obtained before check period. The total value of Rs.38,250/-.
vii) As per return from assessment year 1981-82 vide Ext. Y-Y1, Rs.25,000/- was available for investment in building.
viii) Value of immovable property as per Ext.U Rs.8000/-
The total sum under the statement A comes to Rs.21,721.00 + Rs.2,05,598.74 = Rs. 2,27,319.79/-
Statement B i.e. the assets at the end of the check period. The learned Court below failed to take into consideration of the following amount:-
i) Value of the house property as per sale deed vide Ext.E is Rs.1,20,000/-. The total expenses for construction of first floor completed in the year 1983 and the second floor completed in the year 1992. The expenses are mentioned vide Ext.AF of Rs.4,700,15.61/- and total comes to Rs.5,90,015.61/-. As per Ext.23-24, the value of the property is shown at Rs.16,91,813/-. So it is exceeded by Rs.11,01,797.39/-.
ii) That the appellant got married on 19.01.1977 and he received many bridal gifts including furniture and the same has been received before the check period and which ha been wrongly assessed during the check period. The items were mentioned in Serial No.8, 31, 45, 56, 67, 68, 69, 76, 77 to 83, 84, 88, 89. The total is Rs.84,750/-. Thus, the total assets in the check period ought to have been Rs.21,80,862.24. C - The statements shown income and received during check period.
i) Provident Fund withdrawal vide Ext.AC as deposed by DW6 is Rs.40,000/-.
ii) Income Tax Refund vide Ext. AJ/1, AJ/2 and AJ/3 of Rs.6757/-.
iii) Medical claim refund vide Ext.AN-250/14 of Rs.10,700/-.
iv) Subsidy received from District Industrial Center, Guwahati, for running printing press vide Ext.G of Rs.65,556/-.
v) Voluntary declaration of income of Arifa Ahmed in the year 1988-89 and 1995-96 of Rs.61,701/-.
vi) The value of the certificates of encashment of Foreign Currency Traveller cheque of Rs.1,09,650/- The total income will be Rs.24,96,489.35 + Rs.2,94,364/- (Rs.40,000 + 10,700 _ 65,556 + 61,701 + 1,09,650) = Rs. 27,90,853.35/-.
D. Expenditure Statement during check period.
Computation
1. The assets at the end of the check period - Rs.21,80,861.85/-.
2. The assets at the beginning of the check period (A) - Rs. 2,27,319.74/-. 8 Criminal Appeal 09/2010
3. The assets acquired at the end of check period (B-A) Rs.19,53,542.11/-.
4. The added expenses D Rs. 8,20,138.73/-
5. Total assets and expenditure (B-A) + D - Rs.27,73,680.84/-.
6. Income during the check period - Rs.27,90,853.35/-.
7. Likely savings - Rs.11,17,251/."
17. In the backdrop of the fact that the prosecution could not convincingly prove the assessment of the valuation of the immovable and movable properties of the appellant, the learned trial Court could not have held that prosecution has succeeded in proving its case beyond reasonable doubt.
18. Section 13(1)(e) of the PC Act lays down that if a public servant or any person, on his behalf, is in possession or has, at any time, during the period of his office, been in possession, of pecuniary resources or property disproportionate to his known sources of income, which the public servant cannot satisfactorily account, then, the public servant or such person shall be punishable with imprisonment for a term, which shall not be less than one year, but may extend up to seven years and shall also be liable to fine.
19. It needs to be remembered that it is the burden of the prosecution to prove that the person, accused of having been found in possession of assets disproportionate to his known sources of income, is proved, beyond reasonable doubt, to have been found in possession of property disproportionate to his known sources of income. It is on discharge of this initial burden that the burden shifts to the defence to satisfactorily account for the properties, which the accused is found to be in possession of. Unless the initial burden is discharged by the prosecution, an accused cannot be made liable nor can he be imposed the liability to satisfactorily account for valuation of the assets, which are claimed to have been found to be in his possession.
9 Criminal Appeal 09/2010
20. In the case at hand, as can be clearly gathered, the prosecution could not adduce consistent, coherent, logical, convincing and unimpeachable evidence proving beyond reasonable doubt that the appellant had been found in possession of assets disproportionate to his known sources of income. In such circumstances, the burden could not have been taken to have shifted to the defence.
21. Inextricably connected with the above is the fact that the defence, as already indicated above, too, adduced evidence and its evidence ought to have been given the value, which it deserved.
22. Because of the infirmities with which suffered the findings of the learned trial Court, this Court is clearly of the view that in the facts and attending circumstances of the present case, the accused could not have been held to have been proved guilty of the charge, which had been framed against him. At any rate, in the face of the indeterminate value of the assets of the appellant, the appellant was entitled to, at least, benefit of doubt.
23. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the appellant and the sentence passed against him by the judgment and order, under appeal, are hereby set aside. The accused- appellant is held not guilty of the charge framed against him and he is acquitted of the same under benefit of doubt.
24. The bail bond of the accused-appellant is cancelled and his sureties stand discharged.
25. With the above observations and directions, this appeal shall stand disposed of.
26. Send back the LCR.
JUDGE 10 Criminal Appeal 09/2010 [dutt]