Delhi District Court
Cbi vs . Samir Baron Ray & Anr. // 1 // on 15 January, 2014
CBI Vs. Samir Baron Ray & Anr. // 1 //
IN THE COURT OF SH. DINESH KUMAR SHARMA,
SPL. JUDGE (PC ACT) : CBI
SAKET COURTS : NEW DELHI
CC No. 06/13
CBI Vs. Samir Baron Ray & Anr.
RC No. 1(A)/2008
Date : 15.01.2014
ORDER ON CHARGE
1.0 CBI has filed the chargesheet against Sh. Samir Baron Ray,
Retired Dy. Director General, Ordinance Services, Master General of
Ordinance Branch, Integrated Headquarters of Ministry of Defence (Army),
Delhi Headquarters, New Delhi and Smt. Asha Ray wife of Sh. Samir Baron
Ray u/S.109 IPC r/w S.13(2) r/w S.13(1)(e) of POC Act, 1988. Chargesheet
is the culmination of the investigation conducted in pursuance of RC No.
1(A)/2008/CBI/ACUV dated 31.08.2008. RC was registered on the basis of
source information against A1 Brig. Samir Baron Ray.
Primarily, the allegations were that A1 Brig. Samir Baron Ray
while posted in service as public servant had amassed assets in his name as
well as in the name of members of his family and others during the period
01.04.2000 to 31.03.2007, which prima facie appear disproportionate assets
to the tune of Rs.28,95,827/ to the known sources of income.
CBI Vs. Samir Baron Ray & Anr. // 2 //
Investigation revealed Samir Baron Ray joined the Indian
Military Academy, Dehradun in the year 1973 and passed out from IMA in
June 1975. He was allotted Ordinance Corps and was posted as Lieutenant in
1 Mahan Regiment in Akhnoor, J&K. In October, Samir Baron Ray was
promoted to the rank of Brigadier and was posted in DDOS, 15 Corps,
Srinagar, J&K and was subsequently transferred as DDG (Technical
Functioning & Budgetary Control) to New Delhi. A1 Samir Baron Ray
retired from this position on 31.03.2008.
A1 Samir Baron Ray was born to Sh. Santosh Kumar Ray and
Smt. Bina Ray. Late Sh. Santosh Kumar Ray retired from Defence Estates
Service in the year 1977 as Assistant Director (Military Lands &
Cantonments), Central Command, Lucknow. Late Sh. Santosh Kumar Ray
left one residential house at 12, Talkatora Road, Rajajipuram, Lucknow,
which was subsequently sold on 05.07.2005 (after the death of Sh. Santosh
Kumar Ray) for Rs.17,00,000/ (Seventeen Lakhs). Sh. Samir Baron Ray was
married to Smt. Asha Ray (A2). Dr. Asha Ray is a qualified MBBS. She
joined Indian Army in the Army Medical Corps in the year 1983 and served
there till she took voluntary retirement in the year 1988. The couple had two
sons namely Sh. Gaurav Ray and Sh. Rahul Ray. A2 Asha Ray claimed to
have done private practice as well as to have worked in different hospitals at
various places where her husband was posted. However, A2 started filing her
income tax returns from Financial Year 2004 - 05. Sh. Gaurav Ray after
CBI Vs. Samir Baron Ray & Anr. // 3 //
having completed his Maritime Engineering Course from Tolani Maritime
Institute, Pune, got an employment with a foreign shipping company. Sh.
Rahul Ray younger son of the accused persons was born on 16.12.1992 and
was studying in Class XIIth at the time of filing of chargesheet. CBI has
claimed that both the sons were student during the check period and had no
independent source of income.
Pursuant to the registration of FIR, the searches were conducted
on 02.09.2008 at Pune and New Delhi which resulted in recovery of several
incriminating documents and cash to the tune of Rs.11,95,600/. The check
period was fixed from 01.04.2000 to 31.08.2008.
The investigation further revealed that accused had immovable
assets in the sum of Rs.8,32,584/ and movable assets in the sum of Rs.
5,52,138/, totaling to Rs.13,84,722/ at the beginning of the check period.
The details of the movable and immovable assets have been detailed in the
chargesheet and have not been reproduced herein for the sake of brevity and
the chargesheet may be referred to for the details of the same. Investigation
revealed that accused persons had income in the sum of Rs.2,46,18,053/
during the check period and had incurred an expenditure in the sum of Rs.
1,52,49,230/ during the check period. The details of the income and
expenditure have been detailed in the chargesheet and have not been
reproduced for the sake of brevity and chargesheet may be referred to for the
same. The investigation revealed that accused persons had immovable assets
CBI Vs. Samir Baron Ray & Anr. // 4 //
in the sum of Rs.1,83,64,403/ and movable assets in the sum of Rs.
43,87,225/ at the end of check period. The details have not been reproduced
for the sake of brevity. The immovable and movable assets at the end of the
check period were Rs.2,27,51,628/ and therefore, accused persons were
found in possession of disproportionate assets in the sum of Rs.1,19,98,083/
at the end of the check period. The computation of assets, income and
expenditure of the accused persons may be summarized as follows :
Assets held on 01.04.2000 1,384,722.00
Assets held on 31.08.2008 22,751,628.00
Assets acquired during the check period (01.04.00 to 31.08.08) 21,366,906.00
Expenditure during the check period (01.04.00 to 31.08.08) 15,249,230.00
Total assets & expenditure during the check period (01.04.00 to
31.08.08) 36,616,136.00
Income during the check period (01.04.00 to 31.08.08) 24,618,053.00
Disproportionate Assets 11,998,083.00
Investigation also revealed that A2 Asha Ray had actively aided
and abetted A1 Samir Baron Ray by allowing him in acquiring the huge
immovable and movable property in her name even though she did not have
means to acquire the same. Chargesheet was filed on 01.04.2010 and copies
were supplied to the accused persons u/S.207 Cr.P.C.
2.0 Sh. KK Sood, Ld. Sr. Advocate assisted by Sh. Ghanshyam
Sharma, Ld. counsel for accused persons argued in detail that prosecution
CBI Vs. Samir Baron Ray & Anr. // 5 //
has miserably failed to bring the prima facie case against the accused persons
and therefore, accused persons are entitled to be discharged. Sh. KK Sood,
Ld. Sr. Advocate opened his arguments on the plea that Section 109 IPC is
not at all attributed and there is no applicability of the judgment delivered by
Hon'ble Supreme Court in P. Nallammal And Another Vs. State
Represented by Inspector of Police, (1999) 6 SCC 559 in the present set of
facts. Ld. Sr. Advocate submitted that bare reading of Section 12 of POC Act
1988 makes it clear that the legislature made the abetment of the offence
punishable only u/S.11 and 7 of POC Act, 1988 and therefore, the offence as
defined u/S.107 IPC cannot be stretched to Section 13(1)(e) of POC Act,
1988. Sh. KK Sood, Ld. Sr. Counsel relied upon the illustration given by Sh.
Shashi Bhushan Sr. Advocate appearing for the respondent in P.
Nallammal's case and emphasized that the observation made in P. Nallammal's case can be applicable only if it is fall within the illustration narrated in the case and later laid down in P. Nallammal's case.
Ld. Sr. Counsel submitted that there is no material against A2 for abetment of offence. CBI also in the chargesheet has confined itself in para 12 of the chargesheet that A2 had actively aided and abetted A1 by allowing him to acquire huge immovable and movable property in her name even though she did not have mean to acquire the same. CBI has not discussed anything further that how and in what manner A2 has aided and CBI Vs. Samir Baron Ray & Anr. // 6 // abetted A1 in the commission of offence. It has been submitted that charge cannot be framed at the mere asking of the prosecution and therefore, A2 is entitled to be discharged straightway. Sh. KK Sood, Ld. Sr. Advocate submitted that it is a matter of record that certain papers are in the joint name of A1 and A2. However, this would not mean that A2 has abetted the offence. It was pointed out that normally in such cases, the wife is joined only to avail the benefit of court fee and registration charges. Ld. Sr. Counsel also took the cover of Benami Transaction Act 1988 to buttress his point that the properties in the name of A2 are actually owned by her. It was submitted that A1 was a business minded person and had been regularly investing money and made fortune by sale and purchase in real Estate. Ld. Sr. Advocate submitted that this act of the accused may be punishable only u/S. 168 IPC, which provides that a public servant shall be liable to be punished if engaged in trade. However, this act of the accused cannot be brought within the ambit of Section 13 of POC Act. Ld. counsel submitted that there is no allegation that A1 received any illegal gratification. It was further submitted that so far as the question of not informing department / Govt. about the income by indulging in real Estate deals, it does not partake the offence of criminal misconduct. Reliance was placed upon Ashok Tshering Bhutia Vs. State of Sikkim, AIR 2011 SC 1363, in which it was held that non information may be a breach of service rules but does not fall within the scope of POC Act, 1988.
CBI Vs. Samir Baron Ray & Anr. // 7 // Ld. Defence counsel argued vehemently that since A2 was earning independently and therefore, income and assets earned by A2 cannot be attributed to A1. Ld. Sr. Counsel submitted that Investigating Officer has not conducted the investigation fairly and has been selective in placing the documents before the court. The documents which were available to the accused have been withheld and therefore, in view of the unfair and dishonest investigation conducted by the CBI, accused persons are entitled to be discharged.
In respect of prima facie case and the jurisdiction of the court at the stage of framing of charge, Ld. Sr. Counsel relied upon Century Spinning & Manufacturing Co. Ltd. & Ors. Vs. State of Maharashtra, (1972) 3 SCC 135.
Ld. Sr. counsel submitted that if the prosecution has not been able to bring a prima facie case against the accused persons, they are liable to be discharged. It was also stated that court cannot act as a mouthpiece of the prosecution. Ld. Sr. Counsel relied upon the judgment of Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 SCC (Cri.) 487. Ld. Sr. Counsel submitted that investigating agency is duty bound to conduct fair investigation and it is not the duty of the IO to strengthen the case of the prosecution by withholding the documents. Reliance was placed upon Shakuntla Vs. State of Delhi, 139 (2007) DLT 178. Ld. Sr. Counsel CBI Vs. Samir Baron Ray & Anr. // 8 // reemphasized that accused has inherent right to fair investigation and relied upon V.K. Sasikala Vs. State represented by Supdt. Of Police (2012) 9 SCC
771. Sh. KK Sood, Ld. Sr. Counsel assisted by Sh. Ghanshayam Sharma, Advocate argued in detail regarding factual matrix of the case.
Perusal of the record indicates that accused persons filed brief synopsis / written submissions alongwith documents initially on 24.11.2010 and thereafter, on 28.01.2013 and 30.04.2013. I have also found other brief synopsis on record, which do not bear any date.
2.1 During the course of arguments on charge, Sh. Ghanshyam Sharma, Ld. counsel stated at bar on 12.09.2013 that brief synopsis / written submissions filed by him on 30.04.2013 containing 178 pages is the last and final submissions and further submitted at bar that earlier synopsis / written submissions filed by them may be ignored as all the points have been covered in written submissions dated 30.04.2013. In view of this statement made at bar, this court has gone through the written submissions dated 30.04.2013 filed on behalf of accused. In the said written statement, the defence has pointed out that assets at the beginning of the check period in the sum of Rs.13,84,722/ as shown by the CBI in the chargesheet is undervalued. It was submitted that accused Samir Baron Ray joined service in Indian Army in 1973 and served the country for about 25 years. A2 Asha Ray is a qualified doctor who passed out in the year 1981 and served in CBI Vs. Samir Baron Ray & Anr. // 9 // hospitals and also later on joined the Indian Army in the year 1983 where she served for about 5 years and thereafter, worked as a Doctor in various hospitals. The father of the accused was also a civil servant and both the brothers of the accused are also Officers in Air Force and Navy, respectively.
The defence submitted that A2 Asha Ray had also stridhan i.e. Jewellery etc., which is not considered by CBI.
Sh. Ghanshyam Sharma, Ld. counsel has argued in detail regarding the factual matrix of the case and submitted that the IO has not conducted the investigation fairly and was predetermined to frame the case of disproportionate assets against the accused persons. Ld. counsel pointed out various items in the assets / expenditure / income to demonstrate that there were factual, arithmetical and calculation mistakes committed by the IO for wrongly arriving at the conclusion that accused persons had amassed disproportionate assets during the check period. Sh. Ghanshyam Sharma, Ld. counsel placed reliance upon various documents and statement of witnesses to bring his point that no case is made out against the accused persons.
3.0 The team of Prosecutors led by Sh. Raj Mohan Chand, Ld. PP for CBI argued vehemently that all the points raised by the defence are actually matter of trial and cannot be looked at this stage. It has further been submitted that the documents filed by the defence cannot be seen at this stage and there is a prima facie case to frame the charge against the accused CBI Vs. Samir Baron Ray & Anr. // 10 // persons.
The detailed arguments on the factual matrix have been advanced by the prosecution and the defence. The arguments can well be summarized in the tabular form as filed by the CBI, even at the cost of brevity to read and understand the things clearly.
Sl. Facts from Chargesheet Explanation of Accused / Reply on behalf of No. Disputed Points Prosecution
1 Assets as on 01.04.2000 That the accused Samir That during investigation beginning of check period Baron Ray joined services in terms of Section 13(1) Investigation revealed that in Indian Army as an (e) and explanation clause Samir Baron Ray and his Officer in 1975 and served appended therein of the family members were the country for about 25 PC Act, 1988 benefit of having immovable and years at the time of start of all the income accrued movable assets worth Rs. check in period have been given to the 13,84,722/ in their (01.04.2000). accused / applicant. It is possession at the beginning relevant to mention that of the check period i.e. on His wife, Dr. Asha Ray a neither he nor his wife 01.04.2000. qualified doctor who disclosed about the passed out in the year 1981 stridhan during the course and served in hospitals and of the investigation. That also later joined the army during her employment in in the year 1983 where she the Army, she has not served about 5 years and disclosed about her thereafter she did various immovable assets earned civil and Govt. jobs as a through stridhan. It is doctor. relevant to mention that at the time of joining It is also submitted that the service, govt. employee is father of the accused was bound to disclose their also in Indian Civil assets to the department Services and both the as per rules. That Dr. brothers of the accused are Asha Ray could not also Officers in Air force produce any evidence CBI Vs. Samir Baron Ray & Anr. // 11 // and Navy. justifying her alleged incomes from various Considering the family Civil and Govt. jobs. background, nature of job During investigation due and the period of 25 years benefit was given to her of service coupled with the with regard to income facts that his wife was also earned by her through class I Officer and a salary etc. as reflected in qualified doctor, the D97, 99 to 101. In this valuation of assets only regard the statement of worth Rs.13,84,722/ at the Smt. F.I. Bhagwan may start of the check period, as be referred. shown by CBI in the chargesheet is undervalued.
It is also submitted that Dr. Asha Ray had some stridhan i.e. Jewellery etc. which has not been considered by the CBI.
2 Immovable assets as on The accused persons have CBI reply is that, as 31.08.2008 submitted that the regards to the sale of shop Shop No.G37, Vardhman statement of Sh. No.G37, Vardhman City City Mall, Sector 23, Harbhagwan Singh Mall at the cost of Rs. Dwarka, New Delhi. (LW13) clearly brings out 28,00,000/, it is that he had paid Rs.28 submitted that on Refer Para 13 of the Lakhs for purchasing the 14.08.2008 an Agreement chargesheet immovable said property on to Sale (unregistered) was assets 25.08.2008. The property entered into between Smt. has been sold and taken Asha Ray w/o Sh. Samir over by Sh. Harbhagwan Baron Ray and Sh.
Singh on 25.08.2008 as per Harbhagwan wherein the record held by Vardhman sale price was agreed to Properties and be in cash. Second page corroborated by Sh. Udesh of this agreement Sharma, the Manager mentions that payment of (Accounts), Vardhman Rs.1,50,000/ in cash as Properties (LW14). Out of earnest money and CBI Vs. Samir Baron Ray & Anr. // 12 // total consideration of Rs. balance of Rs.26,50,000/ 28 lakhs, Rs.18,30,000/ was to be paid within 30 was in cash and Rs. days. On the back of 9,70,000/ was by cheque. second page of the said Some portion of this cash agreement, there is an amount was seized by the endorsement mentioning CBI from the residence of cash of Rs.10 lakh on the accused. After being 19.08.2008 with signature convinced with the plea of on behalf of Asha Ray. It accused, the cash seized by further mentions about the CBI was released to the cheque No.390078 for Rs.
accused by the Hon'ble 1,50,000/ dated Court. Statement u/s.161 19.08.2008. This cheque Cr.P.C. of LW13 Sh. of Rs.1,50,000/ was Harbhagwan Singh and credited in HDFC Bank, LW14, Sh. Udesh Sharma Gopinath Bazar, New are enclosed. Delhi in the name of Samir Baron Ray on Hence, a sum of Rs.26.52 23.08.08. it is further lakhs is to be removed alleged / claimed that 4 from assets (expenditure) cheques total amounting and a sum of Rs.1.48 lakhs to Rs.8,50,000/ were to be added to the income. credited in the same account on 02.09.2008 but the check period is upto 31.08.2008.
therefore, the said claim is beyond the said period, hence, cannot be considered being not the part of check period.
During investigation neither the application / accused nor purchaser could produce any documents regarding CBI Vs. Samir Baron Ray & Anr. // 13 // above mentioned transaction of cash of Rs.
10 lakhs.
In view of the evidence discussed above Rs.3 lakhs has been taken into account as consideration for the sale of the property. Since the payment against the property was not cleared within the check period, the property was kept in the assets coloumn and the money received from Sh. Harbhagwan has been kept in income column.
There is some
discrepancy in the oral
statement of LW13 and
the documentary
evidence which cannot be
sorted out at the stage of
charge. The aforesaid
discrepancy can only be
sorted out at the stage of
trial. It is further relevant
to mention that the
accused also did not
intimate the transaction to
his department and
position has not been
shown in the ITRs also.
3 1000 Sq. yds plot in village The said plot in village It is submitted on the Chouma, New Palam Vihar Chouma, New Palam Vihar behalf of CBI that the in joint name of Sh. Samir (unrecognized colony) was sale of Plot No.T76 CBI Vs. Samir Baron Ray & Anr. // 14 // Baron Ray and Dr. Asha purchased at Rs.25 lacs situated in the revenue Ray vide sale agreement which estate village Chouma was seized by the CBI. Tehsil and Distt.
However during Gurgaon. In this investigation on the basis transaction Sh. Mukesh of the statement of one Sh. Narula who brokered the Muktesh Narula (LW38) deal stated in his the price of the plot has statement u/S.161 Cr.P.C. been fixed as Rs.61 lacs. and u/S.164 Cr.P.C. that That neither the statement accused Samir Baron Ray of the seller namely Sh. has paid Rs.35,00,000/ Pradeep Chander Sen the in cash more than the owner of the plot nor the amount i.e. Rs.2,50,000/ statement of Sh. Manoj shown in the registered Tomar who purchased the sale deed. The contention adjacent plot from the of accused is not correct same seller was recorded that the CBI has withheld by the CBI. Further the the registered sale deed as broker Sh. Raj Kumar the same is cited as D15. Rana (LW28 & 34) has It is also not correct that not brought out any cash the statement of Sh. transaction in the aforesaid Pradeep Chandra was deal. The market valuation recorded but not cited. In was also not done. Hence, this regard, it is submitted the registered sale that he is an NRI residing agreement value should be at Dubai, during the considered statement u/S. course of investigation, 161 Cr.P.C. of LW28 & 34 despite sincere efforts, he of Sh. Raj Kumar Rana and was not available for his LW38 Sh. Muktesh Narula statement.
enclosed. It is further submitted
that the statement
recorded u/S.164 Cr.P.C.
needs to be given due
weight. Moreover, the
evidence at the stage of
charge cannot be
CBI Vs. Samir Baron Ray & Anr. // 15 //
evaluated in great detail
which is infact the stage
during the trial.
4 Movable Assets as on This cash pertains to the It is submitted by CBI 31.03.2008 proceeds of the sale that the accused / amount of the shop applicant did not produce Cash of Rs.2,80,000/ No.G37, Vardhman City any evidence / documents recovered from Flat No. Mall, Dwarka, New Delhi at the time of 603, Rio Grande, Fortaleza as given in the statement of investigation which could Complex, Kalyani Nagar, Sh. Bhagwan Singh prove that cash recovered Pune. (LW13) (Sr. No.13 under from Room No.6 Arjun immovable assets). Since COD Officers Mess, 58 Cash of Rs.9,15,600/ the cash was received on Kirby Place, Delhi was recovered from Room No.6, 25 August 2008 and the sale proceed of the th Arjun, COD Officers Mess, accused Samir Baron Ray said sale. Moreover, 58 Kirby Place, Delhi. was busy with the release of said seized retirement process and also amount under the had to leave for Pune as the direction of the Court is son was going out of India. not absolute because the The same could not be case is pending trial and deposited in the Bank and the said release would be 7 during the raid of CBI on subject under our plea bringing out the consideration during trial. above fact the Hon'ble Court was kind to release the said amount.
This amount was released by the Hon'ble Court.
5 Cash of Rs.47,000/ Yet to be released an Subject matter under recovered from Locker No. application is filed by the trial. 227, ICICI Bank, 'C' Block, accused before this Hon'ble Vasant Vihar, New Delhi Court.
6 Expenditure during the The income received in the As regard to deduction of check period 01.04.2000 Bank is minus the income TDS, it is submitted that to 31.08.2008 Tax deducted at source as the income tax is CBI Vs. Samir Baron Ray & Anr. // 16 // per form 16 and hence deducted from the income Income Tax paid by again deducting is from salary, whereas he accused Samir Baron Ray incorrect. Copy of the had several source of (FY 200203 to 200607) Form 16 is enclosed. income which he had not disclosed to his Rs.2,85,279/ is to be department. In the ITRs deducted from expenditure. besides income from Salary, other income heads are also required to be disclosed. This issue can be settled only during trial on the basis of the evidence led / recorded in the Court. Further, the position would be cleared by the department witnesses.
7 Repayment of Loan Against Amount of Rs.3,54,114/ is In this regard CBI reply is Rent Receivable (LARR) to be deducted from that the position can be availed by accused Samir expenditure. assessed during trial Baron Ray from HDFC through evidence only. Bank 8 Repayment of Housing Amount of Rs.1,28,489/ As regard to the loan Loan A/c no. has been shown as excess taken from IDBI Bank, it 809675100020448 availed under repayment as is submitted that the by accused Samir Baron cheques returned repayment was calculated Ray from IDBI Bank, Pune resubmitted have been correctly.
considered twice. (The Moreover, position would loan statement enclosed). be clarified by the witnesses during trial.
Rs.1,28,489/ is to be deducted from expenditure.
9 Payment made by accused The travel was for official As regard to the payment Samir Baron Ray towards duty and the Air Tickets made to Air Tickets, it is purchase of air tickets from were purchased from M/s. submitted that the TA bill M/s. Preeti Travels Pvt. Preeti Travels from the submitted by accused CBI Vs. Samir Baron Ray & Anr. // 17 // Ltd. advance received and Samir Baron Ray varies credited in the HDFC, with the air tickets Gopi Nath Bazar salary purchased by him.
account.
Moreover, position would Rs.2,56,227/ to be be clarified by the deducted from expenditure. witnesses during trial. 10 Loss on account of Sale of This is incorrect CBI reply is that the shop shop No.G78, Vardhman supposition. Instead there was purchased on City Mall, Dwarka, New has been profit as the shop 24.03.2007for Rs. Delhi. has been sold for Rs.71 57,61,944/ this property lacs as stated by the buyer was claimed to be sold Refer in the Para No.55 in Sh. Bal Bir Singh and his out at the cost of Rs. the chargesheet under affidavit stating the same. 71,00,000/ out of which expenditure The individuals statement an amount of Rs.
stating the same was 40,00,000/ was paid vide recorded by the CBI. The pay order and Rs.
said shop was purchased 31,00,000/ in cash as an for Rs.57,61,944/ CBI additional payment. But alleged that the said shop no details of payment of was sold by accused for Rs. cash or payment of 40 lacs. It is highly Income tax in respect of improbable and does not cash amount are stand to logic that the same produced. After man will sell the property registration of the case at such a huge loss. Hence, and searches etc., Sh. Rs.17,61,944/ shown as Balbir Singh has made an loss stands reduced and affidavit dated 07.08.09 amount of Rs.13,64,725/ stating that an additional to be added to the income payment of Rs.
(Capital gains). The 31,00,000/ was made in affidavit of the sale given cash. That there are no by the buyer Sh. Balbir details of payment of Singh is enclosed herewith. cash, sources of money etc. are not mentioned in Rs.17,61,944/ to be the affidavit of Sh. Balbir deducted from expenditure Singh. During his CBI Vs. Samir Baron Ray & Anr. // 18 // and Rs.13,64,725/ added examination by the IO he to income. could not give any satisfactory explanation.
Thus this affidavit was made simply for the false explanation. Therefore, this affidavit does not carry any value. Neither Sh. Balbir Singh nor the accused reflected these transactions in their income tax returns. The accused also did not intimated the transaction to his department. Hence, the amount of Rs.
17,61,944/ is included in the expenditure of the accused.
It is further submitted that accused despite being a senior army officer during the check period was in the business of sale and purchase of properties (in contravention of well established conduct rules as he never intimated such transactions to his department). In such a scenario there will be profit in the business and sometimes there will be loss also. Moreover as to why he sold said property in loss, is the exclusive CBI Vs. Samir Baron Ray & Anr. // 19 // knowledge of the accused which is not known to the prosecution.
It is further submitted that :
(1) Plot bearing Khasra
No.293, 294 situated in
village Yalwadi, Taluka
Khed, Pune, Maharashtra.
As per the accused, the
transaction was made
through cash. The
transaction was not
intimated by the accused
to his department.
Further, neither accused
Samir Baron Ray nor Sh.
Shambhuji Khanduji
reflected the same in their
IT returns. As such, no
benefit was given.
11 Income of Samir Baron The salary as per form 16 As regard to the Ray and his family during receipt from CDA Pune calculation of salary of the check period works out to Rs. the accused, it is (01.04.2000 to 31.08.2008) 30,07,590/. In addition submitted that the there has been income accused should have from sale of jewellery of produced the mode of Salary income of accused the value of Rs.1,49,550/ calculation. There are Samir Baron Ray during in the year 2005. Copies of documentary evidence the check period.
Form16 and receipt of sale submitted by his of jewelery are enclosed. department on the basis Refer in the Para No.1 in of which CBI has the chargesheet under Rs.11,31,470/ need to be calculated. Moreover, this income added to the income. issue can be clarified by the witnesses of his Rs.1,49,550/ to be added department during trial.
CBI Vs. Samir Baron Ray & Anr. // 20 //
to the income.
12 Income of Smt. Asha Ray In addition there was As regards the contention from profession during the income from her business of the accused that his check period. of Samsonite Franchise in wife had an income of Rs.
name of Sidhdhi Vinayak 7,39,665/ from business Leisure and Travels of Samsonite Franchise, it amounting to Rs.7,39,665/ is submitted that this not considered though it Franchise belongs to M/s. has come in the business Sidhdhi Vinayak Leisures account of HDFC Bank and Travels. The setting which had been seized by up of the Franchise the CBI during involved huge expenditure investigation. which is much higher than the income being Income from sale of claimed by the accused. jewellery of Rs.4,57,450/ Further the accused did for which the bills has been not produce any evidence seized by the investigating like ITR pertaining to this officer not considered. The Franchise during above income has also investigation. Moreover, been declared to the position can be clarified Income Tax department through evidence during and requisite tax paid. the trial.
Copies of the same are enclosed herewith.
Rs.7,39,665/ to be added to income.
Rs.4,57,450/ to be added to income.
13 Income from sale of House Actually the income is Rs.4 This position can be no.12, Talkatora, lacs as under : clarified through Rajajipuram, Lucknow. Rs.3 lacs vide DD No. evidence during trial.
781741 dt. 23.08.205 Refer in the Para no.6 in the deposited in PNB, MG chargesheet under income Road, Pune account on CBI Vs. Samir Baron Ray & Anr. // 21 // 05.09.2005 and the cheque of Rs.1 lac bearing cheque No.519098 dt. 20.09.04 and deposited in ABN Amro Bank, MG Road, Pune. Copies of bank statement enclosed.
Rs.1 lac to be added to income.
14 Rental income from shop Actual rental income Accused has not shown No.G5, Krishna Apra received in the Bank is Rs. the position in ITRs and Royal Plaza, Greater Noida. 6,55,596/ and thus Rs. has not intimated to his 1,31,717/ has been shown department.
Refer in the Para no.13 in less. Copies of bank the chargesheet under statement enclosed. income Rs.1,31,717/ to be added to income.
15 Rental income from shop Actual rental income Accused has not shown No.117, Connaught Place, received Rs.4,72,632/ the position in ITRs and Bund Garden Road, Pune in hence an amount of Rs. has not intimated to his the name of Smt. Asha 2,29,020/ has been shown department. Bina Ray with Power of less.
Attorney to Dr. Asha Ray Copies of Bank statement Refer in the Para no.14 in enclosed.
the chargesheet under
income Rs.2,29,020/ to be added
to income.
16 Loans Loans of Rs.3 lacs taken As regard to the loan
from PNB Branch has not from PNB to the tune of Refer in the Para No.16 to been taken into account in Rs.3,00,000/ taken on 23 in the chargesheet under the various loans shown. 22.02.07, it is submitted income The amount of loan minus that the accused has not the payment of EMI works disclosed this during CBI Vs. Samir Baron Ray & Anr. // 22 // out to Rs.1,46,300/ investigation and not disclosed to his An amount of Rs. department. However, if it 1,28,608/ is shown as loan appears in the document vide HDFC credit card No. the benefit deducting 4050282000002084 as on repayment can be given August 2008. only during trial through evidence.
An amount of Rs.57,378/ is from as loan against As regard to the loan HDFC Credit card No. taken from HDFC Bank, 4050280000002076 as on it is submitted that the August 2008 copy of the repayment was calculated statements enclosed. correctly. Moreover, during trial position Rs.1,46,300/ lacs added to would be clarified. be income.
Rs.1,28,608/ to be added to income.
Rs.57,378/ to be added to be income.
17 Amount received in US Amount received as a As regard to the amount dollars by Smt. Bina Ray remittance by Smt. Bina received from abroad mother of accused Samir Ray is acutely Rs. (USA), it is submitted Baron Ray from her grand 7,96,410/. Hence amount that the accused has not daughter residing in the of Rs.2,13,750/ has been disclosed this during the United State and deposited shown less. Copies of bank investigation. However, in SB A/c 931562 in the statement enclosed. (This IO in his earlier reply has joint account of Samir point has been accepted by submitted that if this Baron Ray and Smt. Bina the IO subsequently in the position appears in the Ray in ABN Amro Bank. Hon'ble Court in their document the benefit can reply) Income from sale of be given to him. But the Refer in the Para No.76 in jewellery value of Rs. said position can be the chargesheet under 2,08,340/ not taken into clarified through income account. The bills were evidence during trial.
CBI Vs. Samir Baron Ray & Anr. // 23 //
seized by the IO during
investigation.
Rs.2,13,750/ to be added
to income.
Rs.2,08,340/ to be added
to the income.
18 Land and Farm House at Registered agreement of Plot bearing Khata No. Survey no.294 Village this land was entered in 293, 294 situated in Yelwadi, Taluka Khed, 2005 with Sh. Shamba Ji village Yalwadi, Taluka Pune acquired in the name Lendghar and a sum of Rs. Khed, Pune, Maharashtra. of Smt. Asha Ray and 10,00,000/ was received as Samir Baron Ray purchased advance payment from the As per the accused, the on 22.04.2004. aforesaid Shamba Ji transaction was made Lendghar. The agreement through cash. The Refer in the para no.6 in the was seized by the IO and transaction was not chargesheet under income. statement recorded. The intimated by the accused same was not placed on to his department.
record by the CBI copies Further, neither Sh. of sale agreement and Sameer Baran Ray nor seizure memo enclosed. Sh. Shambhuji Khanduji reflected the same in their Rs.10 lacs to be added in IT returns. As such, no income. benefit was given.
19 Agricultural land at survey Registered agreement for This issue can be No.517, at village Induri, sale of this land was clarified only through Tal Vadgoan, Maval, Distt. entered with Sh. Ram Bhau evidence during trial. Pune of Brig. SB Ray Bhalekar in the year 2005 Moreover, this transaction purchased vide sale deed and a sum of Rs. was not intimated by the dated 14.07.2004. 15,00,000/ was received accused to his as advance from the department.
Refer in the Para no.4 in the aforesaid Sh. Ram Bhau chargesheet under income Bhalekar in respect of both the properties. This agreement was seized by the IO and statement CBI Vs. Samir Baron Ray & Anr. // 24 // recorded by the CBI but the same was not placed on record by the CBI. Copy of sale agreement enclosed.
Rs.15,00,000/ to be added to income.
20 Agricultural land at survey As above This issue can be No.516 at Village Induri, clarified only through Tal Vadgoan of Brig. SB evidence during trial. Ray purchased vide sale Moreover, this transaction deed dated 14.07.2004. was not intimated by the accused to his Refer in the Para no.3 in the department.
chargesheet under income 4.0 I have heard Ld. counsel for the parties, gone through the record carefully and considered the judgments cited by the defence and prosecution.
I must record my deep appreciation for Sh. KK Sood, Ld. Sr. Counsel, Sh.
Ghanshyam Sharma, Advocate, Sh. Raj Mohan Chand, Ld. PP for CBI and Sh. DK Singh, Ld. PP for CBI, for rendering their able assistance to the court. The case was voluminous in nature and the efforts were made to demonstrate the arithmetic and accounting procedure through the detailed arguments.
4.1 Before proceeding further, I consider that it would be advantageous to recall the observation made by Hon'ble Supreme Court in Kanti Badhra Shah & Anr. Vs. The State of West Bengal, AIR 2000 SC CBI Vs. Samir Baron Ray & Anr. // 25 //
522. In this case, the Apex Court was entertaining a petition against the order of Hon'ble High court whereby the charge framed against the accused persons was quashed. Hon'ble High court while setting aside the order for framing of charge remarked that the Magistrate has considered the chargesheet and other papers submitted thereby for satisfying himself that as to whether there is a prima facie case against the accused persons for the aforesaid offences. The Apex Court while hearing the SLP against the order of Hon'ble High Court interalia held as under :
"We wish to point out that if the trial court decides to frame a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial Judge has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned."
It was further held that even in a trial before a court of Session, the Judge is required to record reasons only if he decides to discharge the accused. But if the court is to frame the charge, the court may do so without recording its reasons for showing why he framed the charge. The Apex court specifically held that "if there is no legal requirement that the trial Court should write an order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra CBI Vs. Samir Baron Ray & Anr. // 26 // work."
Bare perusal of above said judgment makes it amply clear that if the court decides to frame the charge against the accused, there is no obligation on the court to discuss the reasons in reaching to the conclusion regarding framing of charge. Rather any such discussion would prejudice the trial in future. Thus, the reasons are required to be recorded if the court decides to discharge the accused and proceedings comes to a culmination. It would be necessary to add here that detailed arguments and then detailed order at the stage of charge only adds to the already long drawn proceedings and delay in the disposal of the case.
The bare perusal of the law laid down in Kanti Badhra Shah's case (supra) makes it clear that the mandate of the Hon'ble Supreme Court is that the Judge while framing the charge need not write a detailed order and the Court has only to satisfy itself that there is a prima facie case and sufficient ground exists for proceeding against the accused.
4.2 Before coming to the factual matrix of the case, I consider that there are two material legal questions which needs to be answered:
(1) What is the scope of jurisdiction for framing the charge u/S 228 Cr.PC?
(2) Whether the documents/material filed by the defence can be seen at the stage of charge?
CBI Vs. Samir Baron Ray & Anr. // 27 //
(1) What is the scope of jurisdiction for framing the charge u/S 228
Cr.PC?
There are catena of judgments laying down the principles to be followed at the stage of consideration of charge. It has been consistently held that at this stage, the Court has only to consider the prima facie case and is not required to appreciate and weigh the material on record. The court has only to see the prima facie case that whether there is sufficient ground for proceeding against the accused. The prosecution as well as the defence have cited number of judgments on this point. I consider that reproduction of those judgments would only add to the volume of the case.
I have gone through the judgments cited by the parties and I consider that in Union of India Vs. Prafulla Kumar Samal & Anr., AIR 1979 SC 366, the law lays down in detail the jurisdiction to be exercised at the stage of charge. The principles laid down in this case can be reproduced as follows :
"Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.
CBI Vs. Samir Baron Ray & Anr. // 28 // (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
There cannot be any doubt to the proposition emphasized by Ld. Counsel for the accused that the court cannot be a mouthpiece of the prosecution and since the order framing the charge specifically effects a person's liberty, the court may not automatically frame the charge. Reliance placed upon State of Karnataka V/s. L. Muniswamy & Ors. (1977) 2 SCC 699 and Century Spining & Manufacturing Co. ltd. & Ors. Vs. State of Maharashtra, (1972) 3 SCC 135. Similarly, the court is conscious of the fact that if two view are possible and evidence gives rise to some suspicion but not grave suspicion, accused can be discharged. Reliance placed on Dilawar Babu Kurane Vs. State of Maharashtra, (2002) 2 SCC 135.
I have gone through all the judgments cited by Ld. Counsel for the accused in this regard. I consider that the judgments delivered by the CBI Vs. Samir Baron Ray & Anr. // 29 // Apex court are on the peculiar facts and circumstances. However, the broad principles regarding the jurisdiction to be exercised at the stage of charge remains to be that the court has to only prima facie satisfy itself about the existence of sufficient grounds for proceedings against the accused and it can evaluate the material and documents on record but it cannot appreciate the evidence. The court cannot appreciate the evidence to arrive at the conclusion that the material produced are sufficient or not for convicting the accused. Nor can the court marshal the material on record of the case as required at the conclusion of the trial. At the stage of framing of charge enquiry must necessarily be limited to decide if the facts emerging from the record and documents constitute the offence with which the accused would be charged and the court may produce the record for that limited purpose only and it is not required to marshal the evidence with a view to decide the reliability thereto. The Apex Court has held in the catena of judgments that at the stage of charge the court is required to evaluate the material and documents on record with a view to find out if the facts emerging out "taken at their face value" disclose the existence of all the ingredients constituting the alleged offence. The caution which was put was that the court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states is gospel truth even if it is opposed to common sense or the broad probabilities of the case. Reference can be made to Supdt. & Remembrancer of Legal Affairs, West Bengal Vs. CBI Vs. Samir Baron Ray & Anr. // 30 // Anil Kumar Bhunja & Ors., (1979) 4 SCC 274.
(2) Whether the documents/material filed by the defence can be seen at the stage of charge?
The next contentious issue is that whether documents filed by the accused at the stage of charge can be looked into or not. The defence has argued vehemently that the prosecution has malafidely withheld the material documents, thus, the documents are required to be seen by the court at this stage.
Per contra, the prosecution has taken a firm position that the documents filed by the accused cannot be looked into at this stage and at the stage of charge, the court is required to consider only police report and documents sends with it i.e. u/S.173 Cr.P.C. Reliance was placed upon State Anti Corruption Bureau, Hyderabad and Anr. Vs. P. Suryaprakasam, 1999 SCC (Cri) 373. In this case, the Apex Court cited with approval the judgment in Minakshi Bala Vs. Sudhir Kumar, (1994) 4 SCC 142. I consider that on this point after going through all the judgments cited by both the parties, the law laid down by Hon'ble Supreme Court in Ajay Kumar Parmar Vs. State of Rajasthan, (2012) 12 SCC 406 clinches the issue, wherein the Apex Court interalia held as under :
"More so, it was permissible for the Judicial Magistrate, Sheoganj, to take into consideration the evidence in defence produced by the appellant as it has CBI Vs. Samir Baron Ray & Anr. // 31 // consistently been held by this Court that at the time of framing the charge, the only documents which are required to be considered are the documents submitted by the investigating agency alongwith the chargesheet. Any document which the accused want to rely upon cannot be read as evidence. If such evidence is to be considered, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. The provision about hearing the submissions of the accused as postulated by Section 227 means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. Even if, in a rare case it is permissible to consider the defence evidence, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted, the instant case does not fall in that category. (Vide: State of Orissa v. Debendra Nath Padhi, AIR 2003 SC 1512; State of Orissa v. Debendra Nath Padhi, AIR 2005 SC 359; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr., AIR 2005 SC 3512; Bharat Parikh v. C.B.I. & Anr., (2008) 10 SCC 109; and Rukmini Narvekar v. Vijaya Satardekar & Ors., AIR 2009 SC 1013)"
Ld. PP argued that in view of the clear law laid down by Hon'ble Supreme Court in Ajay Kumar Parmar's case (supra), the documents placed on record by the defence alongwith written submissions cannot be looked into. Sh. D.K. Singh, Ld. PP for CBI submitted that the case does not fall into "rare" case. It was argued that in this category, the material produced by the defence can be considered if such material convinces the courts that the prosecution version is totally absurd, preposterous or concocted. I consider that in view of the clear law laid down in Ajay Kumar Parmar's case (supra), the documents placed on record by the defence cannot be looked into. The court at this stage has the jurisdiction to consider the documents filed alongwith the chargesheet.
CBI Vs. Samir Baron Ray & Anr. // 32 // 5.0 I have gone through the material on record. In respect of
immovable property i.e. shop No.G37, Vardhan City Mall, Sector - 23, Dwarka, the amount was admittedly credited in Bank account after the check period and no document was seized during the investigation showing the cash transaction and therefore, CBI has taken a plea that the property has been shown in the assets and money received from LW13 Harbhagwan has been shown as an Income. In regard to the discrepancy in the oral testimony of LW13 and the documentary evidence, it can be evaluated only at the stage of trial and at this stage, it would be difficult to accept or reject the testimony, as the court is not entitled to examine the probative value of the witnesses at this stage. Similarly, in respect of 1000 Sq. Yds. plot in Village Chouma, New Palam Vihar, the testimony of LW38 Muktesh Narula cannot be rejected at this stage. The case of the prosecution cannot be rejected only because the statement of Sh. Pradeep Chander Sen was not recorded. In respect of the recovery of cash during the search proceedings, the facts are required to be evaluated during the trial and the fact that the cash was released to the accused is subject to the trial to be held by the court. Similarly, in respect of the discrepancy in the expenditure, income and other items shown by the CBI as alleged by the accused, the same are the subject matter of the trial and cannot be accepted or rejected at this stage. I am avoiding to discuss in detail the contentions raised by the accused and the justification of the same given by the CBI, apprehending that it may prejudice the trial. Suffice it to say, I CBI Vs. Samir Baron Ray & Anr. // 33 // consider that there is prima facie material on the record to proceed against the accused persons. In respect of the contentions of Sh. KK Sood, Ld. Sr. Counsel that the proposition laid down in P. Nallammal's case (supra) is not applicable in the present case, because the facts of this case do not fall within the ambit of illustration given in that case, I consider that this argument is liable to be rejected. The legal proposition laid down in that case cannot be confined to the example given by one of the Ld. Sr. Counsel while arguing the case on behalf of the accused.
6.0 In view of the discussion made herein above, I consider that there is sufficient material for proceeding against the accused persons. The case of the prosecution is liable to be tested on the touch stone of trial. There is nothing on the record to show that the case of the prosecution is absurd or preposterous. There are sufficient material on the record which constitute the ingredients of the offence and prima facie case against the accused persons.
Hence, prima facie case u/S.13(1)(e) r/w S13(2) POC Act, 1988 is made out against A1 Samir Baron Ray and prima facie case u/S.109 IPC r/w S. 13(1)(e) r/w 13(2) POC Act 1988 is made out against A2 Asha Ray. Let the charges be framed accordingly.
(Dinesh Kumar Sharma) Spl. Judge (PC Act) : CBI : 15.01.2014