Delhi District Court
Cb I vs . Smt. Runu Ghosh W/O Sh. B K Ghosh. on 12 May, 2009
IN THE COURT OF V .K .MAHESHWARI
SPECIALJUDGE: TIS HAZARI: DELHI
Corruption Case No.03/98
CB I Vs. Smt. Runu Ghosh w/o Sh. B K Ghosh.
R/o 1/3, Mall Road, Delhi.
Dy. Director General (Licencing
Finance). Deptt. of Tele-communication,
Min. of Communication, Govt. of India,
Sanchar Bhawan, New Delhi (under
suspension)
Date of Institution filed on 23.12.97, regd. On 2.1.98
R.C No. 5(A)/96/CBI/ACU-IV/N. Delhi
Under Section U/s 13( 2) r/w 13 (1) (e) of P C Act
of 1988.
Arguments
concluded on 30.4.09
Date of order 12.5.09
JUDGMENT:
Brief facts as per the case of prosecution are that initially a case vide RC 3(A)/96. ACU IV was registered on 12.8.96 against Smt Runu Ghosh and others for offences punishable U/S 120-B IPC r/w 13(2) r/w 13(1)
(d) of PC Act, 1988. During the course of investigation of that case search of her house No 1/3 Mall Road, Delhi was conducted on 16.8.96. During the search, various documents showing acquisition of property by Smt Runu Ghosh either in her name or in the name of her husband were recovered, as a result of which the present case vide RC.5(A)/96 u/s 13(2) r/w 13(1) (e) of Prevention of Corruption Act, 1988 was registered on 13.9.96 against Smt Runu Ghosh the then Dy Director General ( Licencing Finance), Deptt of Telecommunication, New Delhi on the allegations that during the period from 1992 to 1996, she being a public servant, amassed assets in the form of movable and immovable properties amounting to Rs.31,52600/- which were disproportionate to her known sources of income which was about Rs.383700/- only, which she was not able to explain.
2 Accused remained posted as Director FA (V) in the department of Telecommunication, New Delhi from November 1992 to May 1995. She was thereafter promoted as Dy Director General ( Licencing Finance) in May 1995 and remained posted as such till 19.8.96 when she was placed under suspension in connection with case RC 3(A)/96 ACU-IV, CBI, New Delhi which was registered against her and others on 12.8.96.
3 Documents recovered during the search conducted on 16.8.96 revealed that accused acquired most of the assets during the period from November 1992 to August 1996 when she was holding the sensitive posts as Director FA (V) and Dy Director General ( Licencing Finance) in the Deptt of Telecommunication in which she used to deal with the matters of finance regarding purchase and licensing. Keeping these facts in view the check period , for the purpose of this case has been fixed from 1.11.92 to 16.8.96.
4 Smt. Runu Ghosh was married to Sh. B K Ghosh in year 1982 who served as photographer cum Artist in the Deptt. Of Bureau Indian Standard, Manak Bhawan ,New Delhi , till 29.9.95 when he resigned from service. After leaving the service he started a beauty parlour and also established a plastic molding unit at 51, New Market , Timarpur,Delhi. Smt. Runu Ghosh has one son master Barun Ghosh who was the than a student of 8th class and was studying in a public school, with all modern facilities named Rosary Senior Secondary School , Kingsway Camp, Delhi.
5 The details of assets at the beginning of check period, total income and assets at the end of check period and expenditure of Smt. Runu Ghosh during the check period according to prosecution are as under:-
(A) Assets at the beginning of the check period :
(1) IMMOVABLE ASSETS:
Flat No. 226,Type-II,Sector-11,Rohini, Delhi. Rs.2,98,381.
(2)MOVABLE ASSETS:
i) Household items Rs. 2,99,570.00
ii) Balance in Bank Account
(a) A/c No.25548, Central Bank of Rs. 1,105.53
India
(b) Joint A/c No. 01SBP-5869400 ANZ Rs. 321.65
Grindlays Bank,Parliament Street,
New Delhi in the name of Smt. Runu
Ghosh & Sh. B.K.Ghosh
(c ) A/c.No.16853,Central Bank of India in Rs. 36,810.22 the name of Sh. B.K. Ghosh.
(d) A/c. No.24737 UCO Bank, New Delhi
in the name of Master Barun Ghosh. Rs.1,590.81
(e) A/C No 1265 Syndicate Bank ISI Ext.
Counter, New Delhi in the name of
Sh B K Ghosh. Rs. 35.55
TOTAL Rs.39,863.76
(iii) jewelery Rs.4,42,993.00
Thus Smt Runu Ghosh was having assets
worth Rs.10,80,807.76 rounded off to
Rs.10.80,808/- at the beginning of the
check period Rs.10,80,808.00
(B) Assets at the end of the check period:
(1) IMMOVABLE ASSETS:
(i) DDA Flat No. 226, Type-II, Sec-11 Rohini
Delhi Rs. 4,03,884.00
(ii) House-cum-shop No.51, New Market,
Timarpur, Delhi Rs.5,85,000.00
(iii) House No.765 (Ist & 2nd Floor) Dr
Mukherjee Nagar, Delhi Rs.3,00,000.00
(II) MOVABLE ASSETS:
(I) Balance in Bank A/Cs at the end of check period:
a) A/C No.01SBP/5869400 ANZ Grindlays Bank
Sansad Marg, joint names of Smt Runu Ghosh
& Sh B K Ghosh Rs.93647.71
b) A/C No.25548 Central Bank of India, Parliament
Street New Delhi Rs. 73,044.74
c) A/C No.16853 Central Bank of India, Press
Area, New Delhi in the name of Sh B.K. Ghosh. Rs.22,497.02
d) A/C No.1265 Syndicate Bank Extension Counter, Timarpur, Delhi in the name of Sh B K Ghosh Rs.61,797.84
e) A/C No.20853 United Bank of India, Timarpur, Delhi in the name of Sh B K Ghosh Rs.52,525.00
f) Current A/C No.994 United Bank of India, Timarpur in the name of M/S Smart Beauty Parlour under the proprietorship of Sh B K GhoshRs.19,100.00
g) Current A/C No.995 United Bank of India Timarpur in the name of M/S Ganpati Plastic, Delhi under the proprietorship of Sh B.K Ghosh Rs.83,090.00
h) A/C No.24737 UCO Bank Parliament Street, New in the name of Master Barun Ghosh S/O Smt Runu Ghosh. Rs.7,713.00 TOTAL Rs.4,13,415.31
ii) FDRs with Banks Rs.40,000.00
iii)Currency seized on 16.8.96 Rs.4,63,800.00
iv)Car No. HR 26C 2657 make Padmini premier Rs.2,50,207.00
v) Shares Rs.1,37,570.00
vi) NSC No. JOEE 968491 Rs.10,000.00
vii) Bond Certificate Rs. 20,000.00
viii) Investment in Units Rs. 5,988.00
ix) Investment with Excort Financial Rs. 15,000.00 Service Ltd
x) Refrigerator ( two) Rs. 19,181.00
xi) Generators-set make Sriram Honda, portable Rs. 26,100.00
xii) One room air-conditioner with stablizer Rs. 21,725.00
xiii) Colour TV Rs. 17,100.00
xiv) Pager Rs. 9,000.00
xv) jewelery Rs. 6,00,223.00 xvi) Watches Rs. 50,000.00 xvii) Liquor bottles Rs. 36,382.00 xviii) Inventory Items Rs. 6,77,170.00 Smt Runu Ghosh was in possession of movable assets worth TOTAL Rs.28,12,861.31 Thus Smt Runu Ghosh was found in possession of assets Immovable and movable worth Rs.41,01,745/- at the end of the check period.
TOTAL Rs.41,01,745.00
( C ) Income during the check period:
a) Income earned by Smt Run Ghosh
i) From Salary and allowances Rs.2,12,853.00
ii) From Advances & withdrawals Rs.1,24,700.00
iii) From loans
a) From Sh KK Sarkar Rs.60,000.00
b) From Sh S C Khan Rs.60,000.00
c) From M/S Countrywide consumer
Finance Ltd Qutab Institutional Area
New Delhi Rs.1,00,000.00
iv) From Gifts:
a) From Ms Ruby Chakraborty Rs.65,000.00
b) From different persons on
festive occasions Rs. 6,122.40
v) From Disposal of assets:
a) Sale of Car No. DIB-1335, Fiat Rs. 75,000.00
b) jewelery Rs. 1,34,683.00
vi)Income from interest accrued in Bank Rs. 14,051.86
Account.
TOTAL Rs.8,52,410-00
b) Income earned by Sh B K Ghosh.
Investigation was also conducted to ascertain the total income of Sh B K Ghosh from salary as well as from the aforesaid business and it was found that the total income of Sh B K Ghosh could not have been more than Rs.3,21,010 as given below:
i) Salary allowances and terminal benefits Rs.1,55,760.00
ii) From business Rs. 37,000.00
iii) From loan Rs. 50,000.00
iv) From money lending business Rs. 69,750.00
v) Interest accrued in bank accounts Rs. 8,500.00 TOTAL Rs.3,21,010.00 Thus Runu Ghosh was having a total income of Rs.11,73,426.26 rounded off to Rs.11,73,420/- from all known sources of her income during the check period either in her own name or in the name of her family members.
TOTAL Rs.11,73,420.00
D) Expenditure during the check period:
a) Verifiable Expenditure
i) Loan given to Sh Darshan Lal Monga Rs.1,50,000.00
ii) Loan to Sh Om Parkash Dawar Rs.1,00,000.00
iii)School Expenses Rs. 27,736.00
iv) LTC premium paid Rs. 17,096.00
v) Payments towards electricity bills Rs. 24,851.00
vi) Payments towards water charges Rs. 1,440.00
vii) Repayment of Car Loan Rs. 28,580.00
viii) Insurance of Car Rs. 3,717.00
b) Non-verifiable expenses:
a) Household expenses Rs. 70,951.00
Thus Smt Runu Ghosh incurred a total expenditure of Rs.4,24,371/- during the check period. All these expenses except household expenses are based on documentary evidence.
TOTAL Rs.4,24,371.00
COMPUTATION OF DISPROPORTIONATE ASSETS
a) Assets at the beginning of check period Rs.10,80,808.00
b) Assets at the end of check period Rs.41,01,745.00
Assets acquired during the check period(b-a)Rs.30,20,937.00
c) Income during the check period Rs.11,73,420.00
d) Expenditure during the check period Rs. 4,24,371.00 Likely savings during the check period (c-d) Rs.7,49,049.00 Disproportionate Assets ( Assets during check period - likely savings during check period) ( Rs. 30,20,927.00 - Rs.7,49,049.00) = Rs.22,71,888.00
6 Thus Runu Ghosh had been found in possession of disproportionate assets to the tune of Rs.22,71,888.00 during 1.11.92 to 16.8.96 against her total income of Rs.11,73,420/- which she has not been able to explain satisfactorily.
7 Copies required U/S 207 Cr P C supplied to accused. My Ld. Predecessor after hearing both the parties on 17.5.2002 has framed a charge against accused for the offence punishable U/s 13 (2) r/w 13 (1) (e) of P C Act, 1988. Accused pleaded not guilty to the charge and claimed trial, hence, this trial.
8 Prosecution, in order to prove its case, has produced following witnesses:
PW 1 Sh. Joseph Vadakumcherry, PW2 Sh K K Sarkar, PW3 Sh B R Dhawan, Asstt Chief Accounts Officers BSN, PW4 Sh. S.K S.K. Kalra UDC Zonal Revenue Officer, Delhi Jal Board, PW5 Sh. T. K Kapur, Account Manager Delhi Automobiles, Asaf Ali Road, New Delhi, PW6 Smt Shanti Bhatia, PW7 Sh Sunil Aggarwal, Commercial Manager, Avero Sales Private Ltd. PW8 Shri Amar Nath Sharma, LDC, DDA Office Lakkar Mandi New Delhi. PW9 Sh Vijay Kumar. PW10 Shri Om Parkash Dawar. PW11 Shri Darshan Lal Monga PW12 Shri Satpal Singh, Assistant, Bureau of India Standard Institute. PW13 Shri Suresh Nair Accountant, Tribhuvan Dass Bhimji Jhaeri. PW14 Shri Gurmohan Duggal PW15 Sh G S Saxena , Assistant Bill Section, Department of Telecommunication, PW16 Sh. Dharmender Dhingra, Company Secretary Sham Telecommunication Ltd PW17 Sh. P Rama Rao, PW18 Sh Baldev Singh Narang PW19 Sh. H.R. Aneja PW20 Sh. Bhushan Kumar, Senior Manager UCO Bank Parliament Street PW21 Shri V P Bourthiyal, Assistant Manager, Central Bank of India PW22 Sh. Shri P C Verma, PW23 Sh. B.S. Bhist, PW24 Sh. Dinesh Chand Joshi, PW25 Shri Chander Shekhar , PW26 Sh. Vimal Soni, PW27 Sh Ashok Kumar, PW28 Sh Gulshan Kumar, PW29 Sh. Om Parkash, PW30 Sh. B S.Jhakhar PW31 Inspector K Babu, PW32 Sh. K. Nagarajan, PW33 Sh Tek Chand , PW34 Sh. H. S. Bhatia , PW35 Gopal Singh , PW36 Shri Kunal Singh, PW37 Shri Sudhirs Sharma, PW38 Shri A N Malhotra, PW39 Subir Dutt Sharma, PW40 Sh. R K Trehan, PW41 Yashwant, PW42 Sh Pradeep Bhatia, PW43 Shri S N. Jha PW44 Mr Charanjit Arora , PW45 Sh Dev Raj Khosla, PW46 Sh. Sarfraz Ahmed, PW47 Sh. A K Laxmikant, PW 48 Shri Ramji Lal, PW49 Shri Ranbir Kumar, PW50 Inspector KPS Dhaka, PW51 Sh Sunil Kumar Chug, PW52 Sh V K Sinha and PW53 Sh R P Gupta .
9 Statement of the accused U/s 313 Cr PC was recorded wherein she has denied all the allegations made against her and evidence produced by the prosecution. She has stated that she had repeatedly given statement of account and explained the acquisition of assets. She had also requested the CBI to call her husband and to seek clarification about his assets, but it was not done. She is innocent. She has been falsely implicated.
10 Accused herself appeared in witness box U/s 315 Cr PC as DW1. Accused has produced DW2 Sh Sanjay Nayal, Locker Custodian Standard Chartered Bank, who has proved original Locker Agreement in respect of Locker No.677 allotted to Mrs Savitri Chakroborthy. DW3 Sh V K Ghosh, husband of accused . DW4 Ruby Chakrovorthy , sister of accused, DW5 Bikash Kr Ghosh, brother in law of accused and DW6 Tarif Singh Gehlot have also been produced by accused as her defence witnesses.
11 Ld. Defence counsel argued that husband of the accused was in service till 29.9.95, when he had resigned from his post, thereafter he had started his business but prosecution without alleging offences of abatement or criminal conspiracy against the husband of accused Sh. B K Ghosh, has clubbed the expenditures made by him from his personal earnings, but included his partial income only. IO has not given any chance to the husband of accused for his explanation, hence the investigation is unfair. In support of his arguments in this regard, Ld. Defence Counsel has placed reliance on State Inspector of Police Vishakhapatnam Vs. Surya Sankaram Karri (2006) 7 Supreme Cases 172.
12 It is argued that husband of accused was making expenditure, from his personal earnings, on the accused who is his wife. Husband of accused has appeared in the witness box and owned the expenditure made by him and money recovered in house search and from the locker in the name of accused. It is argued that burden on the accused is to offer only plausible explanation with regard to disproportionate assets after the prosecution discharges its initial burden by proving recovering of unaccounted assets from the accused. Public servant has not to prove his claim with mathematical exactitude beyond all possibility of doubt. In this regard Ld. Defence Counsel has placed reliance on following authorities:
DSP. Chennai Vs. K Inbasagaran, (2006) 1 Supreme Court Cases 420, Hemanta Kumar Mohanty Vs. State of Orissa, 1973 (1) S.L.R. 1121 and Jastinder Singh Vs. State, 87 (2000) Delhi Law Times 537.
13 Ld. SPP argued that under the P C Act of 1988 accused has not only to submit a plausible explanation but has to satisfy the court that his explanation is trustworthy and acceptable also. It is argued that prosecution in para No.2 of the charge sheet has specifically mentioned that accused acquired/ accumulated huge assets in her name and in the name of her husband Sh. B K Ghosh during the check period i.e. w.e.f. 1.11.92 to 16.8.96 which were recovered during the search, hence, income of both the spouse and their expenditure have been clubbed. Ld. SPP placed reliance on P Nallammal and another Vs. state Represented by Inspector of Police, 1999 Supreme court Cases (Crl.) 1133 in support of his argument.
14 In para No.2 at page 3 of charge sheet it is specifically mentioned that accused had acquired huge assets in her name and that of her husband's name which were recovered in search conducted on 16.8.96. Relevant portion of charge sheet is as under:
" The house of Smt. Runu Ghosh was searched on 16.8.96 in the said case during which a lot of incriminating documents showing acquisition of huge assets in her name and in the name of her husband Sh. B K Ghosh were recovered. The said documents revealed that Smt. Runu Ghosh acquired most of the assets during the period from Nov.1992 to August 1996 when she was holding the sensitive posts as Director FA (V) and Dy. Director General (Licencing Finance) in the Deptt. Of Telecommunications in which she used to deal with the matters of finance regarding purchase and licensing. Keeping these facts in view the check period, for the purpose of present investigation has been fixed from 1.11.92 to 16.8.96".
15 Therefore, the prosecution is justified in clubbing the assets and earnings of accused and her husband without impleading husband of accused as an accused either U/s 109 or U/s 120 B of IPC.
16 Our Hon'ble Supreme Court in State of Maharashtra Vs. Ishwar Piraji Kalpatri, AIR 21996 SC 722 has held that "opportunity which is to be accorded to the delinquent official U/s 5 (1) (e) of satisfactorily explaining about his assets and resources is before the court when the trial commences and not at an early stage. Thus, there is no violation of principles of natural justice if no opportunity was given to accused before the registration of case".
17 It is a case of disproportionate asset U/s 13 (1) (e) of PC Act, 1988. A Full Bench of Our Hon'ble Supreme Court in C S D Swami Vs. State has held as follows with regard to burden of proof in such cases:
"Section 5 (3) does not create a new offence but only lays down a rule of evidence, enabling the court to raise a presumption of guilt in certain circumstances- a rule which is a complete departure from the established principle of criminal jurisprudence that the burden always lies on the prosecution to prove all ingredients of the offence charged, and that the burden never shifts on to the accused to disprove the charge framed against him."
It is further held in this authority by our Hon'ble Supreme Court as follows:
" The Legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word " satisfactorily", and the Legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his larger wealth, but also to satisfy the Court that his explanation was worthy of acceptance."
" The expression "known source of income" must have reference to sources known to the prosecution on a thorough investigation of the case. It cannot be contended that "known source of income" means source known to the accused. The prosecution cannot in the very nature of things be expected to known the affairs of an accused person. Those will be matters " specially within the knowledge" of the accused."
18 Our Hon'ble Supreme Court in M Krishna Reddy Vs State (1992) 4 Supreme Court Cases 45 has held as follows:
" It is not the mere acquisition of property that constitutes an offence under S. 5(1) (e) but it is the failure of satisfactorily account for such possession that makes the possession objectionable as offending the law. To substantiate a charge under Section 5(1) (e) of the Act, the prosecution must prove the following ingredients, namely (1) the prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession (3) it must be proved as to what were his known sources of income, i e known to the prosecution and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once the above ingredients are satisfactorily established, the offence of criminal misconduct under Section 5(1) (e) is complete, unless the accused is able to account for such resources or property . In other words, only after the prosecution has proved the required ingredients the burden of satisfactorily accounting for the possession of such resources or property shifts to the accused."
19 Our Hon'ble Supreme Court in State of MP Vs Avadh Kishore AIR 2004 SC page 517 has held as follows:
" Prevention of Corruption Act (49 of 1988), S.13(1) (e) - Acquisition of disproportionate assets by public servant- Expression ' known source of income' in S. 13(1) (e) - Does not mean sources known to accused- Burden is cast on accused not only to offer plausible explanation as to acquisition of large wealth - But also to satisfy Court that explanation is worthy of acceptance - Term income- Meaning of ."
" The Legislature has advisedly used the expression 'satisfactorily account.' The emphasis must be on the word ' satisfactorily' and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his larger wealth, but also to satisfy the Court that his explanation was worthy of acceptance."
20 Our Hon'ble Supreme Court in a latest authority N Ramakrishnaiah (dead) through LRS. Vs. State of A.P. 2009 III AD (S.C.) 239, in this regard has held as follows:
"The emphasis of the phrase "known sources of income" in Section 13 (1) (e) (old Section 5 (1) (e) is clearly on the word "income". It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary.
The term "income" by itself, is classic and has a wide connotation. Whatever comes in or is received is income. But, however, wide the import and connotation of the term "income", it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investment, and being further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "income". Therefore, it can be said that, though "income" in receipt in the hand of its recipient, every receipt would not partake into the character of income. For the public servant, whatever return he get of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime or immoral secretions by persons prima facie would not be receipt for the "known source of income" of a public servant.
The Legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily" and the Legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance".
21 From the above discussion, the latest legal preposition, on this point, emerges that accused has not only to offer a plausible explanation as to how he came in possession of huge wealth but to satisfactorily account for to the court and satisfy that his explanation is worthy of acceptance. So, this Court has to analyse the explanation of accused in the light of above emerged legal preposition.
22 Accused and her husband Sh. B K Ghosh have appeared in the witness box as DW1 and DW3. Both of them have given their explanation. Husband of accused, DW-3 has produced Certificate under Section 68(2) of the Voluntary Disclosure of Income Scheme, 1997 which is Ex PW3/A. It is argued by Ld. Defence Counsel that in the light of statement of accused and Ex DW3/A coupled with the fact that DW-3, husband of the accused, has owned the money/articles recovered during the search and the property purchased by the couple during the check period, therefore, in view of their explanation no case of disproportionate assets made out against accused.
23 I have carefully gone through the statements of DW1 and DW3 and Ex DW3/A. Accused has stated that her mother had expired on 1.1.90 who had left behind Rs. 6.5 lakh in cash in addition to some FDRs. Her unmarried sister had given that amount to her (accused) She handed over Rs.5,50,000/- to her husband which he utilised in his business. Relevant portion of DW1 (accused), in this regard, is as under:
"Since my husband was in Govt. Service he has not got this plastic Unit registered anywhere because his resignation. When my mother died on 1.1.1990 she had left behind about Rs. 6.5 lacs in cash in addition to some FDRs. Since my sister was unmarried and living alone i.e. after the death of my mother she told me that all this money I can take for use in my husband's business or in any other way I deem fit because she did not require it since she was already teaching in a school and also used to give private tuitions. Accordingly, I handed over Rs.5,50,000/- to my husband which he utilised in his business".
24 In this regard, DW3 husband of accused has deposed as follows:
"I had also obtained Rs.5,50,000/- which I had invested in money lending and my business of plastic moulding. In the year 1990 my mother in law had expired and my wife had brought this amount from Calcutta in cash. This was the money left by my deceased mother in law".
25 Husband of accused has declared this amount in Voluntary Disclosure Scheme pertaining to year 1990-91, it is the first item in Ex DW3/A. When this amount was legally inherited by accused from her mother, what was the need for declaring this amount by the husband of accused in Voluntary Disclosure Scheme, has not been explained by the accused or her husband? Accused has not produced any documentary evidence or independent oral evidence to prove how she had brought this amount and how her husband had utilised it. Thus, explanation of accused in this regard is not worthy of acceptance.
26 Accused has claimed that she had also inherited jewelery of her mother as her sister had waived her right of inheritance of jewelery of the mother because she did not wear the jewelery. Statement of accused in his regard is as follows:
"Apart from the aforesaid money my mother had also left a lot of jewelery which my sister passed on entirely to me since she never wears any jewelery and had no use for the same. No document deed was prepared about this division since we have complete faith in each other and I was very close to her:"
27 Accused has given an explanation that since her sister was alone and working as teacher in a school and also giving private tuitions hence she had given the entire amount, left by the mother, to her, is also not acceptable because she was in greater need of money in comparison to the accused who herself was a group A employee and whose husband was also earning hand, thus in comparison of the need of accused, need of her sister to keep money and jewelery was genuine.
28 Accused and her husband were public servants governed by CCS Conduct Rules. Whatever property whether cash or articles, inherited by accused and acquired by her husband, has to be informed to their department, however, neither accused nor her husband had informed their department about inheritance/acquisition of above said money and jewelery. Relevant portion of her cross examination in this regard is as under:
"I did not intimate about the receipt of jewelery, cash etc. from my mother and my sister to my department. It was also not intimated to my department about Indian Currency as well as foreign currency. (Vol. As per rules there was no need to intimate about the Indian Currency since it was the property of my husband). I can produce copy of CCS Rules, if time is given to me".
29 Money and jewelery was allegedly inherited by accused from her mother being the daughter and not by the husband of accused. According to accused she had given that money to her husband. So the alleged inherited money was of her and not of her husband, hence she was bound to intimate to her department, hence explanation given by her in this regard is not acceptable.
30 In the Certificate of Voluntary Disclosure Scheme Ex DW3/A husband of accused w.e.f. 1991-92 till 1996-97 has declared household items of Rs. 10,000/-, Rs. 15,000/-, Rs.15,000/-, Rs.1,22,675/-, Rs.49,200/-, Rs.1,03,530/- respectively. In the year 1993-94 he has disclosed an amount of Rs.20,000/- as a part of total cost of DDA flat at Rohini which is the subject matter of this charge sheet. In the year 1994-95 he has shown an amount of loan of Rs.1,00,000/- advanced to Darshan Lal by him and an amount of Rs.50,000/- given to Darshan Lal in the year 1995-96. He has also declared an amount of Rs.93,408/- as a part of total cost invested in house No. 765 Mukherjee Nagar, Delhi in t he 1995-96.
31 In the year 1995-96 he has declared an amount of Ra.8,000/- invested for purchasing 100 shares of Shyam Telecom in the name of his wife who is accused in this case. In the same financial year he had shown an amount of Rs.8,000/- invested for purchasing 100 shares of Shyam Telecom Ltd. in his own name alongwith 100 shares of HDFC bank of Rs.1,000/- and 400 shares in advanced Radio Mast Pvt. Ltd. of Rs.40,000/- in his own name. All these shares are the subject matter of this charge sheet. Similarly, the household articles are also part of this charge sheet in Observation Memo (D-54 and D-59). Similarly in the year 1995-96 accused had declared an amount of Rs.41,843/- in FDR with Grindlays Bank, 10 Sansad Marg in the name of Bivash Kumar and Mrs. Runu Ghosh. Husband of accused had declared above said goods, cash etc. of total value of Rs.25,55,000/-. This declaration was made by husband of accused in the year 1997 while he had resigned from the service in the year 1995. According to accused her husband had started two Beauty Parlours in the year 1996 however she has claimed that her husband was running Plastic Moulding Business since 1991 under the name of M/s Ganpati Plastics. But it is well proved on the judicial file that account of these firms were opened in the bank in January, 1996. Whether in a short duration w.e.f January, 1996 to the year 1997, when this declaration was made by the husband of accused, he could have accumulated such huge amount, is doubtful.
32 Whether accused can take advantage of this declaration made by her husband under Voluntary Disclosure of Income Scheme, 1997, is to be seen in the light of provisions of Voluntary Disclosure of Income Scheme, 1997 of the Finance Act, 1997. Section 78 of which is as under:
" 78. Scheme not to apply to certain persons:- The provision of this scheme shall not apply:-
(a) ------
(b) in relation to prosecution for any offence punishable under Chapter IX or Chapter XVII of the Indian Penal Code, the Narcotic Drugs and Psychotropic Substances Act, 1985, the Terrorists and Disruptive Activities (Prevention ) Act, 1987, the Prevention of Corruption Act, 1988 or for the purpose of enforcement of any civil liability".
33 It is argued by Ld. Defence Counsel that this restriction is for the accused, however, in our case declaration was made by the husband of accused. So this restriction is not applicable . As discussed above most of the articles which have been declared, are the subject matter of this charge sheet, filed against accused in this case. It is well settled legal principle that what cannot be done directly that cannot be allowed to do indirectly. In our case accused wants to take advantage of this declaration made by her husband under this Scheme which she cannot made herself thus she cannot be allowed to take the advantage of declaration made by her husband under Voluntary disclosure of Income Scheme, 1997. Hon'ble High Court of Madras in state Vs. A B Dhyaneswaran, 2004 (Cr.L) 2802 (Mad.) in similar circumstances held that accused will not be entitled for the benefit of Kar Vivad Samadhan Scheme introduced by Central Govt.
34 DW3, husband of accused has deposed that he had joined Govt. Service in the year 1987 and resigned from his service in the year 1995. He has deposed that in the year 1987 his father had paid Rs.,150,000/- to him after selling his house in Chitranjan Park from which he had set up Plastic Moulding Unit under the name and style of M/s Ganpati Plastics at the back side of 1/3 Mall Road which was allotted to his wife. As he was doing Govt. job at that time, hence he had not got it registered anywhere. In the year 1996 he had extended it in shop No.51 also. He had purchased this shop from Shanti Bhatia for an amount of Rs.1,60,000/- out of which Rs.1,50,000/- was given by cheque and Rs. 10,000/- in cash. He has stated that he had taken Rs.65,000/- from his sister in law Ruby Chakravorty and Rs. 60,000/- and Rs. 50,000/- from his brother in law Kalyan Sarkar and Rs. 60,000/- from his friend S C Khan. He had purchased first and second floor of house No.765 Mukherjee Nagar from D L Monga for a sum of Rs. 3 lac, payment of which was made after selling jewelery and obtaining loan from friends namely Ramji Lal, Randhir Bhatia and S C Khan. He had obtained Rs.5,50,000/- in the year 1990 from his mother in law. He has stated that he had purchased some dollars for his wife . The foreign currency recovered from residence and locker of his wife includes the same and the foreign currency saved by his wife during her foreign trips and 2000 $ for purchasing computer for his son . He had also purchased some bonds and fixed deposits in the name of his wife from his business earnings. He had purchased 200 shares of Shyam Telecommunication in consideration of Rs.16000/- and 1000 share of A R M Company.
35 In his cross examination he has admitted that he was a Government servant upto November 1995 covered under CCS rules. He has admitted that he had not sent any intimation to his department with regard to running of his business and purchasing of assets. He has also admitted that official accommodation cannot be used for commercial activities. He has admitted that his unit of plastic moulding was not registered with sales tax or any other department. He has also admitted that he had opened account No 995 in the name of M/S Ganpati Plastic in the year 1996. He has admitted that he had not intimated receipt of Rs.1,50,000/- from his father to his department. He has also admitted that neither he nor his wife had intimated the department with regard to purchase of the shop from Shanti Bhatia. He has also admitted that neither he nor his wife had informed their department or Income tax authority with regard to taking of money from Ruby Chakroborthy, Kalyan Sarkar and S C Khan.
36 Relevant portion of his cross examination in this regard is as follows:
" It is correct that I had not sent any intimation to my department with regard to purchasing of assets etc and running of business by me as required under CCS Conduct Rules..................."
" It is correct that I was in Govt. service in 1987. It is correct that Govt. residential accommodation cannot be used for commercial purpose. However, I was not aware of it. We have not taken permission for commercial use of the residential accommodation. It is wrong to suggest that I am deposing falsely in this regard as I had not installed any such plastic moulding machine etc. as stated by me in my examination in chief.........
I cannot produce any document with regard to purchase of moulding machines etc. but I had purchased it from Azad Pur. Some machines were purchased second hand. It is correct that I had not paid any sales tax or other tax to the Govt. It is correct that this plastic moulding machine was not registered."..............
37 According to Rule 15 sub rule (3) of CCS Rules, every Government servant has to report to the government if any member of his family is engaged in any trade or business. The relevant rule is as under:
"Every Government shall report to the Government if any member of his family is engaged in a trade or business or owns or manages an insurance agency or commission agency".
38 I was not present at the time of deal while my father sold residential house at Chitranjan Park. I do not know to whom it was sold. It is correct that I do not have any documentary proof to show that the house as stated by me to be situated in Chitranjan Park was under the ownership of my father. Vol. it can be traced out after searching. It is wrong to suggest that I had not received money of Rs. 1,50,000/- from my father.".............
" It is correct that I had not intimated receipt of Rs. 1,50,000/- from my father to my department. ........................."
" It is correct that neither I nor my wife had intimated the department with regard to purchase of this shop from Shanti Bhatia. It is correct that neither I nor my wife had informed either income tax authorities or department with regard to money received from Ruby Chakravorty. It is correct that the money as I have stated to be taken from Kalyan Sarkar and Sh. S C Khan has also not been intimated either by my wife or myself to any authority as prescribed under the rules"...........................
39 CCS Conduct Rules 18 (1) (II) in this regard states as follows:
"Every Government servant belonging to any service or holding any post included in Group 'A' and Group 'B' submit an annual return in such form as may be prescribed by the Government in this regard giving full particulars regarding the immovable property inherited by him or owned or acquired by him or held by him on lease or mortgage either in his own name or in the name of any member of his family or in the name of any other person".
40 Thus, the above conduct of accused and her husband was in violation of above quoted CCS Conduct Rules.
41 "It is correct that in one case RC 3/96 CBI/ACU/IV under Section 120 B IPC read with section 13 (2) r/w Section 13 (1) (d) of PC Act my wife was tried alongwith Pt. Sukh Ram and Sh. P Rama Rao. It is correct that my wife was arrested in the said case after the raid conducted by CBI. It is correct that Mr. P Rama Rao is the same person who was MD of Advanced Radio Mast from whom I had purchased the shares. I have seen Ex PW17/A1 to A10, all are shares of Advance Radio Mast Ltd. in my name and I identify the same. It is correct that I returned amount of Rs. 40,000/- to Sh. Ramji Lal in February/March, 1995. It is correct that Rs. 50,000/- ( Rs. 25,000/- on two occasions) were taken by me in the year 1993 and it was returned to Mr. Bhatia in the same year."............................
Accused was having official dealings with Mr. P Rama Rao, MD of Advanced Radio Mast inspite of it her husband had purchased shares from him which is also in violation of CCS Conduct Rules 16 (2) which states as follows:
" No Government servant shall make, or permit any member of the family or any person acting on his behalf to make , any investment which is likely to embarrass or influence him in the discharge of his official duties. For this purpose, any purchase of shares out of the quotas reserved for Directors of Companies or their friends and associates shall be deemed to be an investment which is likely to embarrass the Government servant".
42 "Vol. I had purchased Indira Vikas Patra for Rs. one lakh. It is correct that I have no document with regard to purchase of Indira Vikas Patra for Rs. one lakh.".........................
43 Mr. B K Ghosh in his statement recorded U/s 311 Cr PC has stated that in the year 1990 he had purchased certain Indira Vikas Patra of about Rs.1,05,000/- or Rs.1,10,000/- maturity value of which was double. He has also stated that he had got the same encashed on maturity of the bond from time to time according to his need. With regard to purchasing of Indira Vikas Patra of Rs. One lakh husband of accused in his cross examination has stated as follows:
"I joined my service in 1976 as Artist cum photographer. It is correct today I have no document with regard to Indira Vikas Patra referred in my examination in chief. It is correct that I had not intimated any department where the then I was serving with regard to my purchase of Indira Vikas Patra. It is incorrect to suggest that I have cooked up a false defence with regard to alleged purchase of Indira Vikas Patra by me".........
He has further admitted in his cross examination as under:
"It is correct that the proceeds of those Indira Vikas Patras received by alleged encashment were not deposited in any bank".
44 In this regard accused in cross examination of her statement recorded U/s 311 Cr PC has stated as follows:
" It is correct that I and my husband Mr. Ghosh both were public servants in 1990. It is correct that no intimation was sent to department with regard to purchasing of IVPS either by me or my husband. Again said nothing was given by me. I did not encash those IVPS myself. My husband after signing the IVPS might have taken the encashment. Encashment was not taken in my presence".
45 Husband of accused and accused had made various purchases but they had not informed their department. Neither accused nor her husband had produced any document to prove that Mr. Ghosh had purchased Indira Vikas Patras of Rs, one lakh or so and encashed the same on maturity. In view of above discussion, this court is of opinion that accused or her husband has failed to prove that Mr. Ghosh had purchased Indira Vikas Patras of Rs. one lakh.
46 " I have seen Ex PW26/A cash memo dt. 24.2.96 by which I had purchased a gents chain and payment to the tune of Rs.18,285.79 was paid by me to M B Jewellers and Sons. The cash memo bears my signatures at point A. I have seen Ex PW26/B cash memo dt. 24.2.96 by which a bracelet and ear topus for Rs14710.18 were purchased from M B Jewellers and Sons. It bears my signatures at point A. I have seen Ex PW29/F cash memo dt. 31.5.95. It bears my signatures at point A. I had made payment of Rs. 9461.22 to Sen Jewellers, Calcutta. I have seen Ex Pw29/G cash memo dt. 29.12.94. I had made payment of Rs. 1909.09 to Sen Jewellers on the said date. I have seen Ex PW29/J cash memo dt. 19.3.96. I had made payment of Rs.7078.80. Vol. I had sold some jewelery. I have seen Ex PW13/A My wife had purchased one Har set. An amount of Rs.48721/- was made by my wife and her signatures are at point A. I had given Rs one lakh to Sh. Satpal Singh on 10.10.94. The receipt in this regard is Ex PW12/A. I have seen Ex PW11/C. Document is in my hand writing and bears my signatures at point B. It is also signed by Sh. Rakesh Monga at point A and Ramji Lal at point D. I have seen Ex PW11/X. The whole document is in my handwriting and bears my signatures at point A. I have seen Ex PW10/A by which I had made payment of Rs. one lakh to Mr. O P Dawar. Receipt is in my handwriting on 28.1.96. I had paid Rs. one lakh to Mrs. Partap Kaur on 20.8.94. The receipt is correct and is Ex PW12/B. It is correct that electric connection was installed at 1/3 Mall Road and the electric charges were being paid by my wife. Vol. I used to make the payment. It is correct that water connection was also provided by Delhi Jal Board and payment in this regard was made by my wife. Vol. I used to make the payment. I do not take drinks right from 1977. It is correct that foreign made liquor and Indian Liquor in huge quantity were recovered/seized from my residence 1/3 Mall Road."
47 According to CCS Conduct Rules 18 (3) a Govt. Servant in his own name or in the name of his family member has to inform his department about any transaction in respect of movable property. The relevant rule is as under:
"Where a Government Servant enters into a transaction in respect of movable property either in his own name or in the name of the member of his family, he shall, within one month from the date of such transaction, report the same to the prescribed authority, if the value of such property exceeds twenty thousand rupees in the case of a government servant holding any Class I or Class II post or fifteen thousand rupees in the case of Government servant holding any class III or class IV post".
"It is correct that I had not intimated to the Govt. regarding possession of foreign currency which was recovered by CBI on 16.8.96. Vol. my wife might be knowing about it. I cannot admit or deny if my wife had also intimated about the same. It is wrong to suggest that I had not paid 2000 dollar to my wife to purchase computer for my son. It is correct that I had not intimated regarding payment of 2000 dollar to my wife to purchase computer for my son, to my department. It is wrong to suggest that I had deposed falsely in respect of visit of Elizabeth to my house. It is wrong to suggest that 2000 dollar were not gifted by Elizabeth to my son. It is correct that there is no intimation of these 2000 dollars gifts to my son. It is correct that there were withdrawals from various accounts in my name and in the name of my wife for meeting out the house hold expenses etc. Q Did income tax department made any enquiry in respect of source of income declared by you vide Ex DW3/A?
Ans: No enquiry was made by income tax department.
It is wrong to suggest that I have made a cooked up this defence just to save my wife. Vol. I had given the copy of VDIS certificate to the CBI. I had discussed with various friends and one Chartered Accountant that this declaration be made. It is wrong to suggest that I am deposing falsely in order to save my wife."
48 From the above discussion it is clear that acts and conduct of husband of accused is totally in contravention of law, he is not a law abiding person but a law avoiding person. He has cooked up a false and fictitious defence to save her wife. This court is of opinion that explanations given by him are not worthy of acceptance.
49 Accused has appeared in the witness box as DW1 U/s 315 Cr PC. In her cross examination she has stated as follows:
" The Rules pertaining to CCS were applicable to me during my service tenure. It is correct that a Central Govt. Employee has to intimate the transaction of more than Rs.10,000/= to the competent authority, if it is acquired out of his own funds. It is correct that I was tried by the Court of Special Judge, New Delhi (Shri V K Jain) and I was convicted alongwith Sukh Ram and Sh. P Rama Rao accused. It was perhaps three years RI and fine of Rs. 1 lac. It was an offence of criminal conspiracy and abuse of official position by me and by Mr. Sukh Ram. I was arrested in the said case and was granted bail after about three weeks.".....
......I did not intimate about the receipt of jewelery, cash etc. from my mother and my sister to my department. It was also not intimated to my department about Indian Currency as well as foreign currency. (Vol. As per rules there was no need to intimate about the Indian Currency since it was the property of my husband). I can produce copy of CCS rules, if time is given to me.
It is correct that I had not given any intimation to the Govt. except the purchase of one car and the flat at Rohini. It is correct that a person returning from abroad is to declare the currency and the goods brought to the customs. I did not make any such declaration"......
.......It is correct that I was called by Mr. KPS Dhaka, Inspector during investigation of this case. He enquired about the ARM's case and personal properties about Mr. Sukh Ram. It is wrong to suggest that Mr. KPS Dhaka enquired about this case from me. I recall that I was called on 10.10.96 by Mr. KPS Dhaka when I was enquired about this case. I do not remember whether I was examined by him on 18.2.97 and 20.3.97. The money which I have told in my examination in chief was handed over to my husband in the year 1990 and it was all utilised by my husband. It is correct that FIR in this case was recorded on 13.9.96. My husband Mr. B K Ghosh was also called by CBI, but so far as I know that he did not go as he had suffered heart attack. It is correct that the jewelery which I had, was seized by the CBI during its raid on 16.8.96. (Vol. Some of the jewelery were sold by me from time to time and new pieces made or money from sale proceeds utilised). It is correct that I had received all the jewelery prior to November, 1992. (Vol. Some items are still lying in the CBI). I have no knowledge about the contents of VDIS declaration made by my husband during the investigation of this case".
50 From the above quoted cross examination of accused it is clear that inspite of being a Group 'A' employee accused had acted in contravention of CCS Conduct Rules. In these circumstances explanation given by her is also not acceptable.
51 Prosecution has produced PW32 Sh. K Nagrajan who has stated that in the year 1996-97 he was posted as Asstt. Director, Vigilance in Department of Telecommunication. In this case, competent authority to grant sanction was President of India. This witness has stated that he had authenticated the sanction order to prosecute accused Smt. Runu Ghosh vide Ex PW32/A which bears his signatures on each page. He has stated that CBI had submitted the investigation report, calender of evidence alongwith documentary evidence for granting sanction for the prosecution of accused. It was examined by the department and the material was placed before Minister concerned who accorded the sanction after due application of mind. 52 Ld. Defence counsel argued that there is no valid sanction for the prosecution of accused in this case firstly because the Investigating Agency had sent a draft of sanction order which the sanctioning authority had signed as it is, secondly Ld. Defence Counsel referring the cross examination of PW32 Sh. P Nagrajan argued that he has admitted that he did not know if any opportunity was given to accused by any of the functionary involved in the process of granting sanction for explaining the assets and that he did not know whether any opportunity was given by CBI to the husband of accused for explaining his stand or not.
53 It is correct that this witness has admitted that a model draft of sanction was received by him alongwith the relevant record of the case with the request letter received from CBI for granting sanction for prosecution of accused, however, this witness has specifically deposed that he had gone through the record and applied his mind. Thus, sanction cannot be held invalid merely because a model sanction order was received by the sanctioning authority alongwith the request letter for granting the sanction.
54 Our Hon'ble Supreme Court in this regard in State of Tamil Nadu Vs. Damodaran, 1993 Supreme Court Cases (Crl) 272 has held as follows:
"Prevention of Corruption Act, 147 - Ss. 5 (1) (e) and 5 (2) read with S. 161, IPC - Non application of mind and grant of sanction mechanically by sanctioning authority - Basis of acquittal by High Court - High Court deeply influenced in its decision by the fact that a model sanction order was enclosed with the record sent to the sanctioning authority - Held, acquittal not justified - There was no infirmity in the order granting sanction - Criminal Procedure Code, 1973 S. 197".
55 There is no requirement of giving hearing/ opportunity to accused prior to granting of sanction for the prosecution of accused by the sanctioning authority. In this regard our Hon'ble Supreme Court has held as follows:
"Prevention of of Corruption Act, 147 - S. 5 (1) (e) - Registration of a case under - Natural Justice - Delinquent Officer not required to be afforded an opportunity of satisfactorily explaining about his assets and resources before registration of the case - Such opportunity must be given before the court during the trial - CrPC, 1973, S.154 - Criminal Law- Natural Justice - Applicability.
Prevention of of Corruption Act, 147 - S. 6 (1) (b) - CrPC, 1973 -S. 197 (1) (b) - Sanction - Application of mind - Officer signing the sanction order not required to state that he had personally scrutinised the file and had arrived at the required satisfaction - On facts, there had been application of mind and the material on record had been examined by the sanctioning authority before according sanction".
56 This witness has been cross examined at length. Nothing such has come out in his cross examination to disbelieve his statement. In these circumstances this court is of opinion that sanction for the prosecution of accused was granted by competent authority after due application of mind.
DETAILS OF MOVABLE AND IMMOVABLE ASSETS HELD BY ACCUSED AT THE BEGINNING OF CHECK PERIOD DETAILS OF IMMOVABLE ASSETS 57 Prosecution vide document ExPW8/E (D-4), Ex.PW8/A (D-5), Ex P-2, Ex PW8/B, Ex PW8/C, Ex P-3 (D-6) and Ex PW8/D-1 to D-4 (D-7 and D-8) and from the statement of PW 8 Amar Nath has proved that flat No. 226 type II, Sector 11, Rohini, Delhi was acquired in the name of accused herself prior to the check period and paid Rs.2,98,381/- to DDA towards its price prior to check period, as shown at serial No.1 of immovable assets held by accused prior to the beginning of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it correct that she had paid this amount to DDA prior to the check period towards the price of flat No.226, Type II, Sector-11, Rohini. (Q17).
DETAILS OF THE MOVABLE ASSETS HELD BY ACCUSED AT THE BEGINNING OF CHECK PERIOD 58 Prosecution vide Ex PW 29/A and Ex PW29/B (D-58, D-59) and from the statement of PW 29 Om Parkash and PW50 K P S Dhaka has proved that accused Runu Ghosh was having house hold items valuing about Rs.2,99,570/- as shown at serial No.I of movable assets held by accused prior to the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that Observation Memo was prepared in her presence but it was not correctly prepared. (Q11). Accused has not produced any evidence to prove that observation memo was not correctly prepared. She has not given any reason as to how the observation memo has not been correctly prepared. PW50 K P S Dhaka and PW 29 Om Parkash have deposed that observation memo has been correctly prepared. In these circumstances there is no reason to disbelieve it.
59 Prosecution vide Ex PW24/A, ExPW24/B, Ex PW24/C and Ex PW24/D statement of account (D-74) and from the statement of PW 24 Sh. Dinesh Chand Joshi has proved that accused Runu Ghosh had a bank balance of Rs.1105.53/- in account no. 25548, Central Bank of India, as shown at serial No.ii (a) of movable assets held by accused prior to the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it correct.(Q27).
60 Prosecution vide Ex PW25/A, statement of account (D-73) and from the statement of PW 25 Sh. Chandra Shekhar has proved that accused Runu Ghosh had a bank balance of Rs.321.65/- in joint account no. 01SBP- 5869400 ANZ, Grindlays Bank, Parliament Street, New Delhi in the name of herself & Sh. B K Ghosh, as shown at serial No.ii(b) of movable assets held by accused prior to the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has not denied it and stated that it was a joint account of her with her husband. (Q15).
61 Prosecution vide Ex PW21/B1 to B-7 (D-80) and Ex PW53/B (D-94) and from the statement of PW 21 B P Bounthyal and Sh. R P Gupta has proved that Sh. B K Ghosh husband of accused Runu Ghosh had a bank balance of Rs 36,810.22 in account no. 16853, Central Bank of India as shown at serial No.ii (c) of movable assets held by accused prior to the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has not denied it and stated that she cannot say anything about this as she never kept track on her husband's account. (Q12).
62 Prosecution vide Ex PW20/A (D-75) and from the statement of PW 20 Sh. Bhushan Kumar has proved that Master Barun Ghosh minor son of accused Runu Ghosh had a bank balance of Rs.1590.81 in account no. 24737 UCO Bank, New Delhi, as shown at serial No.ii(d) of movable assets held by accused prior to the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it. (Q13). 63 Prosecution vide Ex PW23/B (D-82), and from the statement of PW 23 Sh. B S Bhist has proved that Sh. B K Ghosh husband of accused Runu Ghosh had a bank balance of Rs 35.55 in account no. 1265, Syndicate Bank, ISI Extension Counter, New Delhi as shown at serial No.ii
(e) of movable assets held by accused prior to the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated it incorrect and referred her answer to question No.12 wherein she has stated that she cannot say anything about this as she never kept track on her husband's account. (Q14).
64 Prosecution vide Ex P-7 (D-60 (1), Ex P-W18/B (D60 (2), Ex P- 8 (D61), Ex PW18/A (D-62), Ex P-9 (D-63) and from the statement of PW18 Baldev Singh Narang has proved that accused Runu Ghosh was having jewelery valuing about Rs4,42,993/- as shown at serial No.iii of movable assets held by accused prior to the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that jewelery was seized from her house as well as from her bank locker but she cannot comment on valuation, thus, it is clear that accused has neither given her value of the jewelery nor disputed the valuation made by PW18. (Q18).
65 Accused has not proved on record any other assets besides these assets shown in the chargesheet in her possession at the time of beginning of check period. Even during the course of arguments, Ld. Defence Counsel has not raised any argument on this point.
66 Thus, prosecution has proved that accused was having total movable and immovable assets in her own name and that of her husband B K Ghosh and her son Master Barun Ghosh valuing Rs.10,80,808/- prior to the check period.
DETAILS OF IMMOVABLE ASSETS HELD BY ACCUSED RUNU GHOSH IN HER NAME AND IN THE NAME OF HER HUSBAND SH. B K GHOSH AT THE END OF CHECK PERIOD.
67 Prosecution vide Ex PW 8/E, Ex PW8/A, Ex P2, Ex PW8/B, Ex PW8/C, Ex P-3 and ex PW8/D-1 to D-4 (D4 to D-8) ) and from the statement of PW 8 Amar Nath Sharma has proved that Smt. Runu Ghosh had paid an amount of Rs. 4,03,884/- to DDA for purchasing DDA flat No.226, Type II, Sector 11, Rohini, Delhi, as shown at serial No.I (i) of the details of immovable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it correct (Q17) .
68 Prosecution vide Ex PW 6/A to Ex PW6/F (D10) and Ex PW28/A to Ex PW28/D (D-83, D-84) and from the statement of PW 6 Shanti Bhatia and PW 28 Sh. Gulshan Kumar has proved that Sh. B K Ghosh husband of Smt. Runu Ghosh had purchased house cum shop No.51, New Market, Timarpur in consideration of Rs. 4,60,000/- from Smt. Shanti Bhatia and paid an amount of Rs.1,25,000/- to Sh. Gulshan Kumar for getting the premises vacated from him, thus, a total amount of Rs.5,85,000/- was spent on this deal, as shown at serial No.I (ii) of the details of immovable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has denied it and stated that actual payment of Rs.1,60,000/- was made by her husband. (Q19 and Q23).
69 Ld. Defence Counsel argued that in the agreement to sale Ex PW 6/B, General Power of Attorney, Ex PW6/C and Special Power of Attorney executed in favour of Smt. Runu Ghosh Ex PW6/D and Receipt Ex PW6/E and PW6/F, total consideration value of the property has been mentioned as Rs.1,60,000/- out of which an amount of Rs.1,50,000/- was given by demand draft or cheque and Rs. 10,000/- were given in cash vide Ex PW6/F, hence now in view of Section 91 and 92 of Indian Evidence Act no oral evidence can be considered to contradict the terms of a written document. It is argued that total value of this property cannot be taken more than Rs.1,60,000/-.
70 PW6 Smt. Shanti Bhatia in her examination in chief has specifically deposed that Smt. Runu Ghosh and her husband B K Ghosh had come to her for purchasing this property. She had sold this property in the name of B K Ghosh, husband of accused in January, 1996 in consideration of Rs.4,60,000/-. She has further stated that she had taken Rs.3 lac and Rs.10,000/- in cash and Rs.1,50,000/- by demand draft or cheque at the time of registration of documents. She has also stated that tenanted possession was got vacated by the purchaser of the property. In her cross examination she has admitted that agreement to sale was executed in favour of B K Ghosh. She has denied the suggestion that only cash amount of Rs. 10,000/- was given to her.
71 It is argued on behalf of accused that the value mentioned in the sale documents is the conclusive proof of its real value and prosecution is bound by the same . Prosecution cannot dispute the value mentioned in the sale documents.
72 Section 91 and 92 of Evidence Act binds the parties only but not the stranger to the transaction. In Parvinder Singh Vs Runu Gautam ( 2004 (4) SCC 794), Our Hon'ble Supreme Court has held as follows with regard to Section 91, 92 of Evidence Act.
" The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being. An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction.
We may cull out the principles relating to Section 92 of the Evidence Act, thus:-
i) Section 92 is supplementary to section 91 and corollary to the rule contained in Section 91.
ii) The rule contained in Section 92 will apply only to the parties to the instrument or their successors-in-interest . Strangers to the contract ( which would include the prosecution in a criminal proceedings) are not barred from establishing a contemporaneous oral agreement contradicting or varying the terms of the instrument. On the other hand, section 91 may apply to strangers also.
iii)The bar under section 92 would apply when a party to the instrument, relying on the instrument, seeks to prove that the terms of the transaction covered by the instrument are different from what is contained in the instrument. It will not apply where anyone, including a party to the instrument, seeks to establish that the transaction itself is different from what it purports to be. To put it differently, the bar is to oral evidence to disprove the terms of a contract itself, or to prove that the document was not intended to be acted upon and that intention was totally different.
73 Applying the aforesaid principles, it is clear that the bar of section 92 will apply to a proceedings inter-parties to a document and not to a criminal proceedings, where the prosecution is trying to prove that a particular document created to offer an explanation for disproportionate wealth. Oral evidence can always be led to show that a transaction under a particular document or set of documents is sham or fictitious or nominal, not intended to be acted upon.
74 Ld. Defence Counsel argued that firstly Gulshan Kumar was not a tenant in the shop, secondly prosecution has utterly failed to prove that Mr. Ghosh had paid Rs. 1,25,000/- to him for getting the shop vacated. It is argued that according to the statement of this witness this property was purchased in two parts separately i.e. front portion and rear portion while according to the sale documents it was a single deal. It is argued that PW28 has deposed that he had received money from Sh. B K Ghosh in the month of April, 1996 while it is well proved on the judicial file from the evidence of prosecution itself that Sh. B K Ghosh was running his business in this shop from January, 1996. If the shop was in possession of Sh. Ghosh in the month of January, 1996, no question could arise of making payment of money to Mr. Gulshan Kumar in April, 1996.
75 With regard to payment of Rs.1,25,000/- to Sh. Gulshan Kumar for getting the vacant possession of Shop No.51 accused has stated that she has no knowledge of it, thus she has not denied the fact of payment of Rs.1,25,000/- to Gulshan Kumar by her husband for getting the possession of shop No.51. Sh. Gulshan Kumar has appeared in the witness box. Gulshan Kumar has specifically deposed that in the year 1996 Mr. B K Ghosh, husband of Runu Ghosh had purchased the rear portion of the property from the legal heirs of Lajwanti. He had received Rs. 1,25,000/- from Mr. B K Ghosh for handing over the vacant possession of shop to him as he was the tenant in the same. I have carefully gone through the statement of Gulshan Kumar. Relevant portion of his statement is as under:
"In 1996 Mr. B K Ghosh, husband of Runu Ghosh, had purchased the rear portion of the property from the legal heirs of Lajwanti. Mr. B K Ghosh had offered and I had received Rs.1,25,000/- in consideration of which I had handed over vacant possession of the shop to him. This amount was received by me in cash.
I have seen receipt book "Kirayadar", which bears my signatures on dated 14.10.96. The receipt is Ex PW28/A. It bears the thumb impression of Lajwanti.
I had also handed over D.V.B.Electricity bill. It also bears my signatures. Same is Ex PW28/B. I have also seen another DVB electricity bill Ex PW28/C which bears my signatures".
I have also gone through his cross examination. Relevant portion of which is as under:
"As far I remember the money was taken by me from Mr. Ghosh and I vacated the possession of the shop and given to him by me in the month of April, 1996".
76 From the above quoted portion of cross examination of PW28 Gulshan Kumar, it is clear that he was not certain about the month of vacating of shop by him, that is why he has used the word " As far I remember". This transaction was of the year 1996 while statement of this witness was recorded on 9.7.03 i.e. after about 9 years, hence it is possible that the witness may not be remembering the exact month of vacating the shop. From the documents Ex PW28/A, Ex PW28/B and Ex PW28/C it is well proved on the judicial file that he was in possession of the shop in dispute as a tenant, when this premises was purchased by Sh. B K Ghosh hence it appears to be genuine that tenant Gulshan Kumar must have received this amount for vacating the premises. This witness has repeatedly said that Mr. B K Ghosh had paid to him Rs. 1,25,000/- for vacating the shop. Accused has assigned no reason as to why this witness is deposing falsely against him. In these circumstances there is no reason to disbelieve his statement, thus this court is of opinion that prosecution has proved that Mr. B K Ghosh had paid Rs.1,25,000/- to Sh. Gulshan Kumar.
77 In view of above discussion this court is of opinion that prosecution has proved that Sh. B K Ghosh husband of accused had spent a total amount of Rs.5,85,000/- for purchasing premises no.51 New Market, Timarpur and for getting it vacated.
78 Prosecution vide Ex PW11/A to Ex PW11/K, (D9) and Ex PW50/A and from the statement of PW11 Darshan Lal Monga and from the statement of PW50 K PS Dhaka has proved that house No. 765 First and Second Floor, Dr. Mukherjee Nagar, Delhi was purchased in the name of Sh. B K Ghosh, husband of accused Runu Ghosh in sum of Rs.3 lac as shown at serial No. I (iii) of the details of immovable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that this house was purchased by her husband in sum of Rs.3 lac which was paid by him from his own sources.(Q29) Prosecution has already clubbed all the resources of accused Runu Ghosh and her husband and the assets held by them, hence, there is no merit in the defence of accused.
DETAILS OF MOVABLE ASSETS HELD BY ACCUSED RUNU GHOSH IN HER NAME AND IN THE NAME OF HER HUSBAND SH. B K GHOSH AT THE END OF CHECK PERIOD.
79 Prosecution vide Ex PW25/A (D73) and from the statement of PW25 Sh. Chandra Shekhar has proved that accused Runu Ghosh was having a balance of Rs. 93,647/- in joint account with her husband Sh. B K Ghosh, No. ISP/5869400 ANZ Grindlays Bak, Sandad Marg, as shown at serial No.II (i) (a) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that it was a joint account of her with her husband, thus she is not denying it, hence the version of prosecution in this regard is correct. (Q15) 80 Prosecution vide Ex PW24/A to Ex PW24/D (D74) and from the statement of PW24 Dinesh Chand has proved that accused Runu Ghosh was having a balance of Rs. 73,044.74 in her account No. 25548, Central Bank of India, Parliament Street, New Delhi as shown at serial No.II (i) (b) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it correct and stated that this was her salary account. (Q27). 81 Prosecution vide Ex PW21/A, Ex PW21/B1 to Ex PW21/B7 and ExPW53/B (D80) and from the statement of PW21 V P Bounthyal has proved that Sh. B K Ghosh husband of accused Runu Ghosh was having a balance of Rs. 22,497.02 in account No. 16853Central Bank of India, Press Area, New Delhi as shown at serial No.II (i) (c) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she cannot say anything about it as she never kept track of her husband's account. (Q12). Accused has not specifically denied it. Prosecution has clubbed earnings of accused and her husband and the assets held by them, thus this court is of opinion that prosecution has proved its version about this account.
82 Prosecution vide Ex PW23/A to Ex PW23/C (D82) and from the statement of PW23 B S Bhisht has proved that Sh. B K Ghosh husband accused Runu Ghosh was having a balance of Rs. 61,797/- in account No. 1265 Syndicate Bank, Extension Counter, Timarpur, as shown at serial No.II
(i) (d) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that it is incorrect, she cannot say about it as she never kept track on her husband's account, thus accused has not specifically denied it. Even otherwise prosecution has proved it by substantive evidence of PW23, there is no reason to disbelieve the version of prosecution in this regard. (Q14) 83 Prosecution vide Ex PW39/A to Ex PW39/C (D81) and from the statement of PW39 Subir Dutt Sharma has proved that Sh. B K Ghosh husband of accused Runu Ghosh was having a balance of Rs.52,525/- in his account No.20853 United Bank of India, Timarpur, Delhi as shown at serial No.II (i) (e) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she does not know about it (Q79). Accused has not specifically denied it. Prosecution has clubbed earnings of accused and her husband and the assets held by them, thus this court is of opinion that prosecution has proved its version about this account.
84 Prosecution vide Ex PW39/D (D79) and from the statement of PW39 Subir Dutt Sharma has proved that Sh. B K Ghosh husband of accused Runu Ghosh was having a balance of Rs19,100/- in current account No. 994 , United Bank of India, Timarpur, Delhi in the name of M/s Smart Beauty Parlour under his proprietorship as shown at serial No.II (i) (f) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she has no knowledge about it (Q80). Accused has not specifically denied it. Sh. B K Ghosh, husband of accused has admitted that he was running a Beauty Parlour under the name of M/s Smart Beauty Parlour, prosecution has clubbed earnings of accused and her husband and the assets held by them, thus this court is of opinion that prosecution has proved its version about this account.
85 Prosecution vide Ex PW39/J (D78) and from the statement of PW39 Subir Dutt Sharma has proved that Sh. B K Ghosh husband of accused Runu Ghosh was having a balance of Rs 83,.090/- in current account No. 995 , United Bank of India, Timapur, Delhi in the name of M/s Ganpati Plastics under his proprietorship as shown at serial No.II (i) (g) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that it was the business matter of her husband and she has no knowledge about it (Q81). Accused has not specifically denied it. Sh. B K Ghosh Husband of accused has admitted that he was running his business under the name of Ms Ganpati Plastics, Prosecution has clubbed earnings of accused and her husband and the assets held by them, thus this court is of opinion that prosecution has proved its version about this account.
86 Prosecution vide Ex PW20/A to Ex PW20/D (D75) and from the statement of PW20 Sh. Bhushan Kumar has proved that Master Barun Ghosh son of accused Runu Ghosh was having a balance of Rs 7713/- in account No. 24737 UCO Bank, Parliament Street, New Delhi as shown at serial No. I I (i) (h) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it.(Q13) 87 Prosecution vide Ex PW25/D to Ex PW25F (D76, D77) and from the statement of PW25 Sh. Chandra Shekhar has proved that accused Runu Ghosh in the joint name of herself and her husband Sh. B K Ghosh was having three FDRs of total amount of Rs. 41,843/- but shown as Rs. 40,000/- in the charge sheet at serial No.II (ii) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that these FDRs were purchased by her husband Sh.B K Ghosh. (Q16)Prosecution has clubbed earnings of accused and her husband and the assets held by them, thus this court is of opinion that prosecution has proved its version about these FDRs.
88 Prosecution vide Ex PW36/A and Ex PW36/B, (D49) and from the statement of PW36 Sh. Kunal Singh, PW29 Om Pakrash, PW18 Baldev Singh Narang, PW40 R K Tirhan and PW50 K P S Dhaka has proved that foreign currency U S $ 4786, Hongkong dollar 90, Singapore $ 50, German Deutch Mark (DM 50) and swiss Franc 10 alongwith Indian currency of Rs. 12,500/- were seized on 16.8.96 from locker No.677 in ANZ Grindlays Bank, H Block Connaught Place vide memo Ex PW18/A (D62) as shown at serial No. II (iii) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it factually correct. (Q28).
89 Prosecution vide Ex PW29/C (D64) and from the statement of PW29 Om Pakrash has proved that foreign currency U S $ 3900, 125 pounds, 141 Singapore $, 1050 Tysiac Zlotych (polish Currency) were seized from the almirah of bedroom of house of accused as shown at serial No. II (iii) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that it must be correct as she had received some gifts for her son Barun Ghoash from various people in the foreign currency. (Q30).
90 Ld. Defence Counsel argued that accused had visited foreign countries on official tour about 5000 US dollars were saved by her from those foreign trips from November, 1992 till April, 1996. She had gone to Sweden in November 1992 on official training for 17 days, in addition to her normal DA paid by department she used to get 25 US dollar per day as out of pocket expenses hence she had saved a lot of foreign currency. She had also gone to Beijing in 1994 , to Geneva in the year 1995 and to Australia in April, 1996. She remained on tour for about 44 days, hence she had saved a lot of foreign currency. About 1500 dollars were given to her by her husband after purchasing from Indian Currency for purchasing a computer but due to shortage of time she could not purchase the computer, hence those dollars remained with her. In Sydney a couple named Ralph and Elibabeth Hayden from Newzeeland became a friend of her. They visited India in July, 1996 and stayed with her for 3-4 days while leaving India they had given about 2000 dollars as present to her son who was then about 13 years old. It is argued that Singapore Dollars, Hongkong dollars, DMS and Pounds were given to her by various people on different tours as present for her son who used to collect currencies and stamps of different countries. Polish currency was gifted to her by Mr. Piotr Zavorski, Director Telecom of Poland. It is further argued that foreign currency recovered from accused had been excessively valued.
91 It is undisputed that accused was a public servant. As per C C S Conduct Rules, every public servant is bound to inform his department with regard to any gift received by him or his minor/dependant family member from any person. Accused has not intimated about the receipt of gifts in the form of foreign currency to his department.
92 Rule 13 sub rule (1) of CC S Conduct Rules with regard to gifts received by a Govt. Servant states as follows:
"Save as otherwise provided in these rules, no Govt. Servant shall accept, or permit any member of his family or any other person acting on his behlaf to accept any gift .
Sub rule (3) of Rule 13 states as follows:
"In any other case a govternment servant shall not accept any gift without the sanction of the govt., if the value exceeds.......
(i) Rupees ( one thousand five hundred ) In the case of government servants holding any Group 'A' or Group 'B' Post."
93 If an Indian citizen brings foreign currency from any foreign country he has to declare the same at Airport to Custom Officer. Accused has admitted it. Relevant portion of her cross examination is as under:
"It is correct that a person returning from abroad is to declare the currency and the goods brought to the customs. I did not make any such declaration".
94 Accused was adjudicated for this foreign currency recovered from her possession. Prosecution has produced copy of order No. 4/Adj/99.AD(SA)/33, file No. T-4/39/DZ/97AD of Sh. S A Ali, Assistant Director dated 19.2.99. which is admitted by the accused in admission and denial. Vide this order accused was held guilty for the contravention of section 8 (1) r/w 63 of FERA 1973 and imposed a penalty of Rs.10,000/- (Rupees Ten Thousand only) U/s. 50 of the said Act. Confiscation of the recovered foreign currency on 16.8.96 from her house and locker was also ordered. I have carefully gone through this order. Relevant portion of this order is as under:
"I have carefully gone through and considered the material on record available and find in the statement dt. 28.8.96 and 8.10.96 given before the officers of CBI and Enforcement Directorate, New Delhi respectively Smt. Runu Ghosh has clearly stated that the foreign currency seized by the CBI on 16.8.96 from her residence at 1/3, Mall Road, Delhi and from her locker No. 677 with ANZ Grindlays Bank, H Block, Connaught Circus, New Delhi was acquired by her as gifts. She has also stated in her statement that a portion of the seized foreign currency was savings from her foreign trips but she could not produce any evidence or proof thereof either at the time of her statements or subsequently thereof. She has also stated in her statements that certain portion of foreign currency was left unintentionally at her residence by some foreigner to which she was also not produced any documentary evidence. She has also stated in her statement given before CBI that US $ 1500/- each was collected from S/Shri Alok Tondon and Rajeev Malhotra but subsequently while making statement before the officer of Enforcement denied of having acquired any foreign currency from them and both of them also in their statements dated 16.9.96 and 11.10.96 respectively denial of making any payment in foreign currency to her.
In the facts and circumstances of this case and after appreciating evidence available on records. I come to the conclusion that Smt. Runu Ghosh has herself otherwise acquired the aforesaid seized foreign currency and as per aforesaid statement of Smt. Ghosh she has purchased US $ 150/- from one Sh. M K Arora. Although the said Shri Arora could not be located at the address provided by Smt. Ghosh. However the factum of seizure of foreign currency from her residence and locker has not been denied by the noticee which itself is sufficient enough to hold her guilty for otherwise acquiring the following foreign currency to the tune of US$ 8696, Stg. Pound 125, Sing $ 191 HC $ 90, DM 60 Polish Tystacezlolych 1050/-.".
95 Ld. Defence Counsel argued that no reliance can be placed on this order as accused could not defend herself in this matter and in adverse circumstances she had admitted the case against her. Accused in admission and denial of this order conducted in this court, has admitted it correct. Accused has also admitted the recovery of above said foreign currency from her locker and residence in her statement recorded U/s 313 Cr P C. Accused being a senior bureaucrat must be aware of the procedure of obtaining and keeping foreign currency with her. She has not informed her department about receiving of foreign currency in gift. She has not produced any documentary evidence that she had brought foreign currency after saving from daily allowance during her foreign trip. Amount of foreign currency has to be declared at Airport before Custom Authority while entering in India from foreign country but accused has not produce any such declaration. In these circumstances her defence in this regard, coupled with the above referred order dt. 19.2.99 of Asstt. Director, is meritless.
96 It is also argued by Ld. Defence Counsel that value of foreign currency has not been correctly done. PW36 Sh. Kunal Singh has not himself assessed the value of foreign currency. He has only proved the report of Sh. M L Saxena. I have gone through the statement of PW36. He has stated that he had worked with Mr. M S Saxena and can identify his handwriting and signatures. He has proved the report of Mr. Saxena by identifying his handwriting and signatures which is Ex PW36/B. In the report exchange rate of foreign currency was mentioned as on 16.8.96.
97 Exchange rate of US $ as Rs.35 per dollar, UK Pound as Rs.54.15 per pound, Hongkong Dollar as Rs.4.30 , Singapore Dollar as Rs. 24.05, German Mark as Rs.23.10, Swiss Franc as Rs. 28.30 in Indian Currency as on 16.8.96. According to the rates given by PW36 value of foreign currency seized from the residence of accused comes to Rs.1,46,559/- and value of foreign currency seized from the locker comes to Rs.1,70,537/-, thus, the total value of foreign currency comes to Rs. 3,13,200/-. No cross examination has been conducted of this witness on behalf of accused.
98 Accused in her statement recorded U/s 313 Cr PC in this regard stated that she does not recollect the exchange rate of various foreign currencies. Besides this, she has not said anything with regard to rates of foreign currencies in her statement recorded U/s 313 Cr P C. Accused in her defence evidence has also not given her rates of foreign currencies nor she has produced any other witness to prove the rate of foreign currencies recovered from her, hence there is no reason to disbelieve the statement of PW36 Sh. Kunal Singh in this regard.
99 Prosecution vide Ex PW29/C, (D64) and from the statement of PW29 Sh. Om Parkash has proved that Indian currency of Rs.1,35,300/- was seized from an almirah kept in the bed room of house of accused No.1/3 Mal Road, Delhi as shown at serial No. II (iii) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it and stated that amount was recovered from her house but it was not recovered in her presence as she was sitting in the drawing room. (Q29). Indian Currency of about Rs.1,35,300/- was seized from the house of accused and Indian currency of Rs.12,500/- was seized from the locker, thus, total Indian Currency of Rs.1,47,800/- was seized. It is argued on behalf of accused that this currency belonged to her husband who had given the same to her to keep in her almirah/locker. Accused has appeared in the witness box as DW1, she has also stated that the amount of Indian currency of Rs.1,47,000/- or Rs.1,48,000/- belonged to her husband. Husband of accused Sh. B K Ghosh has appeared in the witness box as DW3, however, in his statement he has not stated anything in this regard. Husband of accused was also a Govt. servant who had resigned from his service in the year 1995. Nothing has been disclosed as to how he was in possession of Rs.1,47,800/- in cash. Source of this money has also not been disclosed. Even accused in her statement U/s 313 Cr PC has not disclosed this defence. (Q29) In these circumstances this court is of opinion that there is no merit in the defence of accused, version of prosecution in this regard is correct.
100 Prosecution vide Ex PW5/B and Ex PW5/A1 to A5 and Ex PW5/C to Ex PW5/G, (D12 and D13) and from the statement of PW5 T K Kapoor has proved that accused had purchased one Padmini Premier Car No. HR 26 C 2657 from Delhi Automobiles in consideration of Rs.2,50,857/- as shown at serial No. II (iv) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that out of this amount she had paid Rs.1,75,000/-. Remaining amount was paid by her husband. (Q32) 101 Ld. Defence Counsel argued that accused had purchased the car after taking loan and by utilising money received by her from the sale of her old car. Prosecution has taken in consideration of the amount received by her from the sale of car No. DIB 1335 of Rs.75,000/- and the loan taken by her and the amount spent by her husband. Prosecution has clubbed the income of accused and her husband while calculating the disproportionate asset of accused, hence her defence in this regard is meritless.
102 Prosecution vide Ex PW16/A and Ex PW16/B (D15) and from the statement of PW16 Dharmender Dhingra has proved that accused and her husband B K Ghosh had purchased 100 shares each (200 shares in total) of Shyam Telecom Ltd. from one Tarif Singh Gehlot on 23.12.94 at a rate of Rs.170/- per share, as shown at serial No. II (v) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that her husband had paid the amount of Rs.8,000/- and not Rs.34,000/-. (Q34) Accused has produced Sh. Tarif Singh Gehlot, in his defence, as DW6. In his examination in chief, this witness has stated that he had sold 200 shares of Shyam Telecom to one Mr. Ghosh in consideration of Rs.16,000/-. In his cross examination he has admitted that in Ex PW16/A consideration amount has been mentioned as Rs.17,000/- for 100 shares, similarly in Ex PW16/B, consideration amount has been mentioned as Rs.17,000/- for 100 shares. Relevant portion of his cross examination is as under:
"I have gone through Ex PW16/A where the consideration amount was mentioned as Rs.17,000/- for 100 shares. Similarly I have gone through Ex PW16/B where the consideration amount was also mentioned as Rs.17,000/- for 100 shares."
103 In his cross examination he has further admitted that he was not having any document with regard to receiving of Rs.16,000/-from Mr. Ghosh for selling his shares. Relevant portion of his cross examination, in this regard, is as under:
"I am not having any document with regard to receiving Rs. 16,000/- for selling of my shares to Mr. Ghosh. I ahd received this amount in cash".
104 Accused has not produced any documentary proof to prove that he had purchased these shares in sum of Rs. 8,000/- only. On the other hand, prosecution has produced Ex PW16/A and Ex PW16/B in this regard. In view of above discussion this court is of opinion that prosecution has proved that husband of accused had purchased 200 shares of Shym Telecom Ltd. In consideration of Rs.34,000/-
105 Prosecution vide Ex PW43/A to Ex PW43/C (D16) and from the statement of PW43 S N Jha has proved that accused had purchased 100 shares of Reliance on 27.6.95 in sum of Rs. 2400/- from one Mrs. Nisha Kumar, as shown at serial No. II (v) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it correct.(Q 33).
106 Prosecution vide Ex PW17/A1 to Ex PW17/A10(D20 and D23) and from the statement of PW17 Sh. P Ramarao has proved that accused had purchased 100 shares of Advance Radio Mass Ltd. and her husband had purchased 1000 shares of this company in a total consideration of Rs. One lac from P Ramarao which was paid through two cheques of Rs,.10,000/- and Rs.90,000/-, as shown at serial No. II (v) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it correct.(Q 33).
107 Prosecution vide Ex PW46/A(D17) and from the statement of PW46 Sh. Sarfraz Ahmed has proved that husband of accused Sh. B K Ghosh had purchased 100 shares of HDFC bank in a total consideration of Rs.3535/- at the rate of Rs. 35.35 each, as shown at serial No. II (v) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it.(Q
33).
108 Prosecution vide Ex P-4 (admitted during the admission denial) (D 21) has proved that accused had purchased NSC Certificate No. JOEE 968491 of Rs. 10,000/-, as shown at serial No. II (vi) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it correct.(Q
36).
109 Prosecution vide Ex PW35/A and Ex PW35/B (D22) and from the statement of PW35 Sh. Gopal Singh has proved that husband of accused B K Ghosh had purchased bond certificate of High Growth Bond of Rs.20,000/- in the name of minor son Varun Ghosh payment of which was made by cheque, as shown at serial No. II (vii) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she had no knowledge about these bonds as the same were purchased by her husband(Q 37). It is clear that accused had not specifically denied it . Prosecution has clubbed income of accused and her husband while calculating the disproportionate assets of accused in these circumstances, the version given by accused is of no help to her.
110 Prosecution vide Ex PW42/A , Ex PW42/B and Ex PW42/C ( D-24) and from the statement of PW42 Sh. Pardeep Bhatia and PW44 Sh Charanjit Arora has proved that husband of accused B K Ghosh had made a total investment of Rs. 5988/- in UTI for purchasing units, as shown at serial No. II (viii) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she had no personal knowledge about it (Q 38 and Q 39). It is clear that accused had not specifically denied it . Prosecution has clubbed income of accused and her husband while calculating the disproportionate assets of accused, in these circumstances the version given by accused is of no help to her.
111 Prosecution vide Ex PW19/A , ( D-25) and from the statement of PW19 Sh. H R Aneja has proved that a sum of Rs. 15,000/- was invested in the name of B K Ghosh husband of the accused in Escort Financial Services Ltd., as shown at serial No. II (ix) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she had no personal knowledge about it (Q 40). It is clear that accused had not specifically denied it . Prosecution has clubbed income of accused and her husband while calculating the disproportionate assets of accused in these circumstances, the version given by accused is of no help to her.
112 Prosecution vide Ex PW34/A , ( D-26) and from the statement of PW34 Sh. H S Bhatia has proved that accused had purchased a Godrej Fridge on 26.4.94 in her name in sum of Rs.11,950/- and has also proved vide Ex PW27/A ( D-27) that her husband Sh B K Ghosh had purchased one Kelvinator Refrigerator on 22.2.96 in sum of Rs.7231/, as shown at serial No. II (x) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that all purchases of appliances were made by her husband in her name as it would make subsequent repairs easier . (Q 41 and 42 ). It is clear that accused had not specifically denied it . Prosecution has clubbed income of accused and her husband while calculating the disproportionate assets of accused in these circumstances, the version given by accused is of no help to her.
113 Prosecution vide Ex PW7/A , ( D-28) and from the statement of PW7 Sh. Sunil Aggarwal has proved that accused had purchased a one portable Generator set of Sri Ram Honda on 13.4.95 in her name in sum of Rs.26100/-, as shown at serial No. II (xi) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that all purchase of appliances were made by her husband in her name as it would make subsequent repairs easier . (Q 44). It is clear that accused had not specifically denied it . Prosecution has clubbed income of accused and her husband while calculating the disproportionate assets of accused in these circumstances, the version given by accused is of no help to her.
114 Prosecution vide Ex PW29/B and PW50/G , ( D-29 and D-59) and from the statement of PW 29 Sh Om Parkash and PW 50 Inspector KPS Dhaka has proved that accused had purchased one room Air Conditioner with stabilizer for a sum of Rs.21,725/-, as shown at serial No. II (xii) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that all purchase of appliances were made by her husband in her name as it would make subsequent repairs easier . (Q 45). It is clear that accused had not specifically denied it . Prosecution has clubbed income of accused and her husband while calculating the disproportionate assets of accused in these circumstances, the version given by accused is of no help to her.
115 Prosecution vide Ex PW27/B, ( D-30) and from the statement of PW 27 Sh Ashok Kumar has proved that husband of accused B K Ghosh had purchased one colour TV of Sharp for an amount of Rs 17,100/- on 22.2.96 from TV House 25, Main Market Kingsway Camp Delhi, as shown at serial No. II (xiii) of the details of immovable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that all purchases of appliances were made by her husband in her name as it would make subsequent repairs easier . (Q 46). It is clear that accused had not specifically denied it . Prosecution has clubbed income of accused and her husband while calculating the disproportionate assets of accused in these circumstances, the version given by accused is of no help to her.
116 Prosecution vide Ex PW50/H ( D-31) and from the statement of PW 50 Inspector KPS Dhaka has proved that husband of accused B K Ghosh had purchased one pager for an amount of Rs 9,000/- from DSS Mobile Communication Ltd C-22, Safdarjung Development Area, as shown at serial No. II (xiv) of the details of movable assets held at the end of check period in the charge sheet.
117 Ld. Defence Counsel argued that prosecution has not produced any document to prove that B K Ghosh had purchased a pager for accused in sum of Rs.9,000/-. It is argued that prosecution has tried to prove it with the help of statement of PW50 Inspector K P S Dhaka, IO of this case. It is argued that mere statement of IO without the support of any document is not sufficient to prove it, hence this amount should be deducted from the list of assets of accused.
118 Accused in her statement recorded U/s 313 Cr PC has stated this was purchased by her husband for her (Q 47). It is clear that accused had not specifically denied it. Mr. B K Ghosh , husband of accused, in his cross examination has admitted that he had purchased a pager in sum of Rs.9,000/- for his wife. Relevant portion of his cross examination is as under:
"It is correct that I had purchased a pager for Rs.9,000/- from D S S Mobile Communication Ltd. The same is Ex PW50/H. It was earlier marked as Ex PW40/A".
119 In view of the admission of DW3 coupled with the fact that prosecution has clubbed income of accused and her husband while calculating the disproportionate assets of accused, there is no merit in the defence argument.
120 Prosecution vide Ex P7 ( admitted ) ( D-60 (1) ) and Ex P-18/B and from the statement of PW 18 Baldev Singh Narang has proved that jewelery valuing Rs. 1,79,128/- was recovered - from the house of accused and from Ex PW18/A , Ex P-9( admitted ) ( D-60(2), 61, 62 and 63) has proved that jewelery items worth Rs 4,21,095/- were recovered from Locker No.677 Grindlays Bank Connaught Place. Accused in her statement U/S 313 Cr P C has admitted both these recoveries.
121 Prosecution vide Ex PW26/A and PW26/B ( D-34 and 35) and from the statement of PW 26 Vimal Soni has proved that husband of accused B K Ghosh had paid Rs.18,285.79p for purchasing of one gold chain and Rs.14,710.18 for purchasing one bracelet and two ear tops on 24.2.96. Prosecution from the statement of PW29 has proved that husband of accused on 31.5.95 had purchased jewelery items worth Rs.94,61/- from Sen Jewellers, Calcutta, vide receipt Ex PW 29/F (D-36). Prosecution from the statement of PW29 has proved that husband of accused on 29.12.94 had purchased jewelery items worth Rs1909/- from Sen Jewellers, Calcutta, vide receipt Ex PW 29/G (D-37). Prosecution from the statement of PW29 has proved that husband of accused on 19.3.96 had purchased jewelery items worth Rs.7,079/- from Sen Jewellers, Calcutta, vide receipt Ex PW 29/J (D-
38). Prosecution from the statement of PW13 has also proved that accused on 14.3.96 had purchased jewelery items worth Rs.48,721/- from Tribhuvan Dass Bhimji Javeri, Delhi vide receipt Ex PW13/A (D-39). In this way, prosecution has proved that accused and her husband had purchased jewelery items worth Rs., 1,00,166/- during the check period. Accused in her statement recorded U/s 313 Cr PC has stated that she cannot comment on it (Q 48).
122 Prosecution in the assets held by accused at the beginning of check period has shown that accused was having jewelery worth of Rs.4,42,993/-, while according to the prosecution accused was having jewelery at the end of check period of Rs. 6,00,223/-. thus, accused had acquired jewelery of Rs. 1,57,230/- during the check period, however, prosecution could prove jewelery worth Rs.1,00,166/- acquired by accused and her husband during the check period, hence accused will be entitled for a benefit of Rs.57,064/-.
123 It is argued on behalf of accused that she had inherited a lot of jewelery after the death of her mother. It is also argued that value of jewelery has not been properly assessed. It is correct that accused in her statement on oath has stated that after the death of her mother she had inherited lot of jewelery as her sister had allowed her to keep entire jewelery with her because she never wears jewelery. In her cross examination in this regard, she has stated as follows:
"I cannot quantify the lot of jewelery as told by me in my examination in chief. Except my sister none was present at the time when jewelery was handed over to me by my sister"........
..."I did not intimate about the receipt of jewelery, cash etc from my mother and my sister to my department."...
124 According to CCS Conduct Rules 18 (3), a Government servant is bound to inform his department within one month from the receipt/transaction of any movable property including jewelery. In view of above discussion her explanation about the receipt of jewelery after the death of her mother is not acceptable.
125 Prosecution vide Ex PW37/A ,Ex PW29/C, ( D-64) Ex PW18/A ( D-62) and from the statement of PW 37 Sudhir Sharma, PW 29 Om Parkash and PW40 R K Trehan has proved that in all 18 watches including Indian and Imported of various makes were recovered from the possession of accused on 16.8.96. 17 watches as per Ex PW37/A were foreign make and one watch of Indian make, total value of some of the watches assessed worth Rs.81,250/- by PW 37.
126 It is argued by Ld. Defence Counsel that PW37 had not seen the seized watches. Without seeing the watches personally he could not assess the value correctly. He has not adopted any authentic method in assessing the value of watches. I have carefully gone through his statement. In his cross examination he has stated that model No. of watches were mentioned in the list given to him. He has assessed the value of watches on the basis of Model No. He has also stated that he could not ascertain the value of watches mentioned at serial No.12, 15, 16 and 17 of the list because the market rates of the same were not available.
127 According to Seizure memo 18 watches were recovered from the house of accused in search out of which 17 were of foreign make and one was of Indian Make. Out of 17 foreign make watches this witness has given the value of 13 watches Rs.81,250/-, however prosecution has assessed the total value of all watches worth Rs.50,000/-, as shown at serial No. II (xvi) of the details of movable assets held at the end of check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that some of the watches were purchased by her from Calcutta Grey Market and some watches were toy watches only. (Q 50). Accused has not produced any document with regard to purchasing of these watches by her nor she has given valuation of these watches. In these circumstances, version given by Prosecution in this regard appears to be correct.
128 Prosecution vide Ex PW29/D (D-65) and ,Ex PW47/A and B, ( D-51) and from the statement of PW 29 Om Parkash and PW47 A K Laxmi Kant has proved that 11 bottles of different brand of Indian Liquor and 17 bottles of foreign make liquor were seized on 16.8.96 from the residence of accused total value of foreign liquor was assessed by PW47 at Rs 36,022/-.
129 Ld. Defence Counsel argued that PW47 was not the author of the valuation Report. He has only proved the Valuation report by identifying Handwriting and signatures of Kishore Lal who had prepared the Valuation Report. It is argued that even Mr. Kishore Lal had assessed the value on the basis of price given in International Airport Magazine hence the value of liquor assessed by him is not based on any authentic document.
130 I have carefully gone through the statement of PW47, Sh. A K Laxmi Kant. In first para of his statement he has specifically stated that now Mr. Kishore Lal has gone abroad. As Mr. Kishore Lal has gone abroad hence his presence cannot be secured easily. In these circumstances no adverse inference can be drawn against the prosecution for not producing him in the witness box to prove the Valuation Report. PW47 specifically deposed that he had worked with Mr. Kishore Lal and can identify his handwriting and signatures. He has further deposed that the valuation was made on the basis of Abu Dhabi International Airport Magazine, Shopping Guide and Price List of June to August, 1996, thus, it is also clear that valuer has not assessed the value of liquor on the basis of price published in Magazine.
131 Total value of liquor recovered from the residence of accused assessed at Rs.36,382/-, as shown at serial No. II (xvii) of the details of movable assets held at the end of check period in the charge sheet. Valuation Report Ex PW47/A and Ex PW47/B was about the value of Foreign Liquor only. Besides the foreign liquor, Indian liquor was also recovered, thus the total value of all the liquor recovered from the house of accused has been assessed at Rs.36,322/-. Accused in her statement recorded U/s 313 Cr PC has stated her husband used to receive some bottles of whisky as gift since he would himself did not take drinks regularly hence he had kept some bottles with himself which may be gifted on appropriate occasions to him. Though accused has stated that her husband was not taking drink regularly but the husband of accused in his statement as DW3 in this regard has deposed that he was not consuming liquor since 1977. Relevant portion of his statement is as under:
" I do not take drink right from 1977"
132 Thus, the stand taken by accused and her husband in this regard is conflicting. Accused has also stated that she cannot comment on the valuation of the foreign whisky. (Q 51 and 52). In these circumstances, there no reasons to disbelieve the valuation given in Report Ex PW47/A AND EX PW47Bb by PW47 and the version of prosecution in this regard. 133 Prosecution vide Ex PW29/B (D-59) and ,Ex PW31/A and B, ( D-54 and D-55) and from the statement of PW 31 K Babu, PW39 Suvir Dutt Sharma and PW50 Inspector KPS Dhaka has proved that total inventory items worth Rs 6,77,170/- were found at the residence of accused and shop No 51 Timarpur on 16.8.96 at the time of search, as shown at serial No. II (xviii) of the details of movable assets held at the end of check period in the charge sheet.
134 Ld. Defence Counsel argued that in the Observation Memo it is not mentioned as to how the value of articles was assessed. However, IO in his statement has stated that it was assessed in consultation with the accused/ her representative and independent witness. It is argued that independent witness in his statement has not stated that value was assessed in consultation with him. It is argued that value of the articles found in shop No.51 Timar Pur, was alleged to have been assessed in consultation with Rakesh. Rakesh has not been cited as witness in the list of witness nor has been produced in the witness box. It is not clear as to who was the Rakesh. In these circumstances no reliance can be placed on the value of articles mentioned in the Observation Memo. It is well proved on the file from the statement of accused that they were present in the house when the search was conducted and the Observation Memo was prepared. They have also admitted that a copy of Observation Memo was given to them. Observation Memo also bears their signatures. Relevant Portion of the cross examination of accused and her husband is as under:
"I was present at the time when CBI raid was conducted in my residence at 3 Mall Road, Delhi. It is correct that I signed on the documents prepared in this regard at the time of raid in token of having received the copies.
I have seen Ex PW29/A (Search list dated 16.8.1996). It bears my signatures at point K. It also bears the signatures of my husband at point I and J.
I have seen Ex PW18/A (Seizure memo dt. 16.8.96) regarding foreign currency, Indian currency, wrist watches and jewelery. It bears my signatures at point A at two places.
I have also seen Ex PW29/C (Description Memo) regarding Indian Currency and foreign currency and wrist watches. It bears my signatures at point F and signatures of my husband at point G."
135 Husband of accused in his statement in this regard has stated as follows:
"In the year 1996 CBI had raided the residential premises of my wife at Mall Road. I was also present at the time of raid. Observation Memos were prepared and we were asked to sign, hence we put our signatures. Observation Memo was not prepared at our instance"...........
He has further stated in his cross examination as follows:
" It is correct that my unit Ganpati Plastics was also searched on 3.10.96 and a search memo Ex PW31/A as well as Observation Memo Ex PW31/B were prepared. I was not present there. Rakesh Kumar Kashyap used to come to my Unit sometimes and he was present (Objected to). Again said he had left.
136 Accused was a Group A Government employee. Her husband was also a public servant. Both of them have signed the Observation Memos. They were also present at the time of search in the house. Had they been not consulted they would have mentioned so on the Observation Memo. Even they have not raised any objections, in this regard afterward. Only in cross examination it is claimed/suggested that value of the goods were not assessed in Observation Memo with their consultation. Husband of accused who has claimed that he was running Plastic Moulding Unit under the name and style of M/s Ganpati Plastics has admitted, in his cross examination, that search of the premises was conducted and Mr. Rakesh who used to come to his unit was present at the relevant time. It is mentioned in the Observation Memo that value was assessed as given by Mr. Rakesh.
137 Accused in her statement recorded U/s 313 Cr PC has stated she was not present hence she cannot comment upon it. From the above quoted portion of cross examination of accused and her husband it is clear that both of them were present at 3 Mall Road and their representative Rakesh Kumar Kashyap was present at shop No.51 Timarpur when the search was conducted and Observation Memos were prepared. It is clear that accused has not specifically denied and she has not given her counter valuation of these articles (Q 53 and 54). In these circumstances, there no reasons to disbelieve the version give by the prosecution, in this regard.
138 According to prosecution value of inventory items was Rs.6,77,170/- which were found in possession of accused and her husband at the end of check period, at the residence of accused and in shop No.51, Timarpur. Out of it, value of the inventory items observed at shop No. 51 Timar Pur comes to Rs.1,00,720/-. Observation Memo of the items observed at the residence of accused is Ex PW29/B. Year of procuring items mentioned at serial No. 10, 11, 12 34, 60, 62, 78, has been mentioned as 1992. In this case Check period has been taken w. e. f. 1.11.92 to 16.8.96. Prosecution has not produced clear evidence whether these items were purchased between 1.11.92 to 31.12.92 or prior to 1.11.92, thus, I am of the view that accused is entitle for benefit of doubt in this regard. Value of these articles comes to Rs.36,360/-, hence I am of the opinion that this amount should be reduced from the total value of inventory items mentioned in the observation memo Ex PW29/B. Against the items shown at serial No. 23, 26, 33, 37, 43, 58 and 96 in the Observation Memo Ex PW29/B, it is mentioned that these articles were received in gifts, but IO has added the value of these articles in the total value of Inventory articles. When prosecution has admitted that these items were received by accused in gifts so the value of these articles should not be added in the value of inventory items. Total value of these articles is Rs.33,300/-, hence this court is of opinion that this amount should also be reduced from the total value of the inventory items observed at the residence of accused. In view of above discussion this court is of opinion that an amount of Rs. 69,660/- should be reduced from the value of inventory articles. Thus, this court is of opinion that prosecution could prove the value of inventory items as Rs.6,07,510/- instead of Rs.6,77,170/-.
139 Though the prosecution has alleged in the charge sheet that Smt. Runu Ghosh was found in possession of assets immovable and movable worth Rs.41,01,745/- in her own name or that of her husband or minor son, but it is proved that Smt. Runu Ghosh was found in possession of total movable and immovable assets of Rs. 39,75,021/- during the check period.
DETAILS OF TOTAL INCOME OF ACCUSED RUNU GHOSH FROM HER KNOWN SOURCES OF INCOME DURING THE CHECK PERIOD.
140 Prosecution vide Ex PW15/A to EX pw15/C and Ex PW50/J (D-90) and from the statement of PW15 G S Samaney and PW52 Vinod Kumar Sinha has proved that accused had received total salary and allowances of Rs. 2,12,853/- with effect from 1.11.92 to 16.8.96 as shown at serial No. C (a) (i) of the details of income of accused during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she did not recollect the exact amount but it must be correct. (Q55) 141 Prosecution vide Ex P12 (Admitted during admission and denial) (D-91) and from the statement of PW52 V K Sinha has proved that accused had received advance of Rs.1,24,700/- as shown at serial No. C (a)
(ii) of the details of income of accused during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she did not recollect the exact amount but it must be correct. (Q56) 142 Prosecution from the statement of PW2 K K Sarkar has proved that accused had taken a loan of Rs.60,000/- in January, 1995 as shown at serial No. C (a) (iii) (a) of the details of income of accused during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC admitted it as correct. (Q57) 143 Prosecution in the charge sheet at serial No. C (a) (iii) (b) has shown that accused had taken loan of Rs.60,000/- from S C Khan, however, prosecution has not produced any evidence to prove it. As prosecution itself has admitted this income hence accused is entitled for the benefit of this amount in her income.
144 Prosecution vide Ex PW14/A (D-53) and from the statement of PW14 Sh. Guru Mohan Duggal has proved that accused had taken a loan of Rs.one lakh from M/s Countrywide Consumer Finance Ltd. New Delhi in September, 1995 for purchasing Premier Padmini Car No. HR 26-C 2657 as shown at serial No. C (a) (iii) ( c) of the details of income of accused during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it correct. (Q 58) 145 Prosecution vide Ex P-10 (admitted during admission and denial) (D-69) has proved that accused had received gifts of Rs.65,000/- from M/s Ruby Chakrovarthy as shown at serial No. C (a) (iv) (a) of the details of income of accused during the check period in the charge sheet.
146 Prosecution as shown at serial No. C (a) (iv) (b) of the details of income of accused during the check period in the charge sheet has admitted that accused had received gifts from various person on festival worth Rs. 6122/-, however, prosecution has not produced any evidence in this regard, as the prosecution has admitted this income of accused by way of gifts hence accused is entitle for the benefit of this income.
147 Prosecution from the statement of PW 33 Tek Chand has proved that accused had sold a Premier Padmini Car No. DIB 1335 in sum of Rs. 75,000/- to Sh. Tek Chand, as shown at serial No. C (a) (v) ( a) of the details of income of accused during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it correct. (Q
59) 148 Prosecution vide Ex PW48/A (D-32) and Ex PW9/A (D-33) and from the statement of PW 48 Ramji Lal and PW9 Vijay Kumar has proved that accused had sold her jewelery items in sum of Rs. 54,884/- and Rs.29,643/- respectively as shown at serial No. C (a) (v) ( b) of the details of income of accused during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she sold her pieces of jewelery over a period, however she cannot tell the details. (Q 60 & 61) 149 Prosecution vide Ex PW25/A (D73)and Ex PW24/D (D74) from the statement of PW 25 Chander Shekhar and PW24 Dinesh Chand has proved that accused had an income from interest on bank accounts of Rs. 14,091/-, as shown at serial No. C (a) (vi) of the details of income of accused during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she is not sure about it. It may be slightly more, however, she has not produced any evidence to prove that she had earned more interest than shown by the prosecution, hence the version of prosecution is accepted as correct in this regard.(Q 62)) 150 Accused has not proved on the record any other income of her besides the income shown in the charge sheet, during the check period. Even during the argument Ld. Defence Counsel has not pointed out any other income of accused except the income mentioned in the charge sheet.
151 Thus, prosecution has proved that accused had a total income of Rs 8,52,410/- during the check period i. e. from 1.11.92 to 16.8.96.
DETAILS OF TOTAL INCOME OF Sh. B K GHOSH HUSBAND OF ACCUSED RUNU GHOSH FROM HIS KNOWN SOURCES OF INCOME DURING THE CHECK PERIOD.
152 Prosecution vide Ex PW50/M (D-89) Ex PW38A to Ex PW38/C and from the statement of PW 50 K P S Dhaka and PW38 A N Malhotra has proved that husband of accused had received total salary, allowances and terminal benefits of Rs.1,55,760/- with effect from 1978 to 1995 as shown at serial No. C (b) (i) of the details of income of the husband of accused during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she had never looked at the salary slip of her husband before this case hence she cannot say anything about it. Her husband had taken VRS on 29.9.95 because he found it difficult to run his various businesses while continuing in his job. Accused had not denied it hence the version of prosecution is accepted as correct. (Q65 & 66) 153 Prosecution in charge sheet at serial No. C (b) (i) has mentioned that Sh. B K Ghosh had earned an income of Rs. 37,000/- from his business. It is argued by Ld. Defence counsel that prosecution has given the benefit of income of Rs.37,000- only to the husband of accused while according to D-66 which is the Computation of taxable income of accused for the financial w.e.f. 1.4.95 to 31.3.96, total income of husband of accused has been shown as Rs.1,19,450/-, so the entire benefit of this amount should be given to husband of accused. Ld. SPP argued that this return had been filed by the husband of accused on 12.3.97 after the registration of this case. It is argued that husband of accused has shown his income excessively in this return in order to cover the disproportionate assets of his wife. It is further argued that in this return income from salary has been shown as Rs.35,924/- benefit of which has already been granted to the husband of accused.
154 I have carefully considered these arguments and have gone through D-66. This document has been filed by prosecution. Taxable income of the husband of accused in it has been shown as Rs.1,19,450/-. Benefit of Rs.37,000/- has already been given to husband of accused in the charge sheet itself. Benefit of income from salary has also been given to the husband of accused in the charge sheet itself, hence the benefit of income from salary of Rs.35,924/- shown in this return cannot be given to him twice. This court is of opinion that husband of accused is entitled for the benefit of Rs. 1,19,450/- minus (37,000 + 35,924/- = Rs. 72,924/-) = Rs.46,526/-.
155 In view of above discussion this court is of opinion that an amount of Rs.46,536/- should be added in the head of income of husband of accused.
156 Prosecution from the statement of PW2 K K Sarkar has proved that husband of accused had taken a loan of Rs.50,000/- in October, 1995 as shown at serial No. C (b) (iii) of the details of income of husband of accused during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC admitted it correct. (Q57) 157 Prosecution vide Ex PW11/C (D-41) and Ex PW11/D (D-48) and Ex PW10/A (|D-43) and from the statement of PW11 Darshan Lal Monga and PW10 Om Parkash Dawar has proved that husband of accused had an income from money lending business of Rs. 69,750/- as shown at serial No. C (b) (iv) of the details of income of husband of accused during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she has no knowledge of it. (Q67). As accused has not denied this fact hence version of prosecution in this regard is accepted in view of the statement of PWs and documents referred above.
158 Prosecution vide Ex PW21/B1 to Ex PW21/B7 and Ex PW53/B (D80), Ex PW39/C, Ex PW39/D (D81), Ex PW39/J (D79), Ex PW23/B (D78) and Ex PW20/A to C (D82) and from the statement of PW21 Sh.V P Bounthal, PW53 R P Gupta, PW39 Sudhir Dutt Sharma, PW23 B S Bhist and PW20 Bushan Kumar has proved that husband of accused had an income of Rs. 85,00/- from interest on bank accounts, as shown at serial No. C (b) (v) of the details of income of husband of accused during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she has no knowledge about it as accused has not specifically denied it and in view of the statement of witnesses and documents proved by prosecution, the version of prosecution is accepted.(Q 63) 159 Though the prosecution has alleged in the charge sheet that Sh. B K Ghosh husband of accused had a total income of Rs 3,21,010/- during the check period from 1.11.92 to 16.8.96 but it is proved that total income of Mr. Ghosh was Rs. 3,67.546/-.
160 Though the prosecution has alleged in the charge sheet that Smt. Runu Ghosh was having a total income of Rs. 11,73,426/- (rounded off to Rs.11,73,420/-) from all known sources of her income during the check period either in her own name or in the name of her family members, but it is proved that total income of Smt. Runu Ghosh in her own name or in the name of her family members was Rs. 12,19,956/- (rounded off to Rs.12,19,960/-) during the check period.
DETAILS OF TOTAL EXPENDITURE INCURED BY ACCUSED RUNU GHOSH DURING CHECK PERIOD 161 Prosecution vide Ex PW11/C (D-41), PW11/D (D48) and mark
PW11/X (D42) and from the statement of PW 11 Darshan Lal Monga has proved that Sh. B K Ghosh husband of accused had advanced an amount of Rs.1,50,000/- as loan to Sh. Darshan Lal Monga in July, 1993 as shown at serial No. D (a) (i) of the details of expenditure made during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she has no knowledge of it. As accused has not specifically denied it and has not produced any evidence to rebut it while prosecution has proved it from the statement of PW11 and with the documents mentioned above, hence, there is no reason to disbelieve the version of prosecution in this regard. (Q67) 162 Prosecution vide Ex PW10/A(D-43), and from the statement of PW 10 Om Parkash has proved that Sh. B K Ghosh husband of accused had advanced an amount of Rs.1,00,000/- as loan to Sh. Om Parkash Dawar on 28.1.1996 1996 as shown at serial No. D (a) (ii) of the details of expenditure made during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that she has no knowledge of it. As accused has not specifically denied it and has not produced any evidence to rebut it while prosecution has proved it from the statement of PW10 and with the documents mentioned above, hence, there is no reason to disbelieve the version of prosecution in this regard. (Q72) 163 Prosecution vide Ex PW1/A, Ex PW1/B1,to B4, Ex PW1/C and Ex PW1/D (D-50) and from the statement of PW 1 Sh. Joseph Vadakuncherry has proved that accused had paid an amount of Rs.27,736/- as school fee for her son Master Barun as shown at serial No. D
(a) (iii) of the details of expenditure made during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that such expenses were born by her husband. Accused has not specifically denied it and prosecution has clubbed income of accused and her husband for calculating the disproportionate asset held by accused, hence accused cannot claim any benefit in this regard. (Q73) 164 Prosecution vide Ex P-5 (admitted in admission and denial) (D
45) has proved that accused had paid Rs.17,096/- during 1.11.92 to 16.8.96 as LIC Premium of her policy No. 111853892 as shown at serial No. D (a)
(iv) of the details of expenditure made during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it correct. (Q74) 165 Prosecution vide Ex.PW22/A and Ex PW22/B (D46) and from the statement of PW22 P C Verma has proved that accused had paid an amount of Rs.24,851/- as electricity charges w.e.f.1.11.92 to 14.4.96 as shown at serial No. D (a) (v) of the details of expenditure made during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that as the official residence was in her name hence the bill was also issued in her name but it was paid by her husband.(Q75) Accused has not produced any document to prove that it was paid by her husband. Prosecution has clubbed income of accused and her husband hence accused is not entitle for any benefit in this regard.
166 Prosecution vide Ex.PW4/A (D47) and from the statement of PW4 S K Kalra has proved that accused had paid an amount of Rs.14,40/- as water charges during the check period as shown at serial No. D (a) (vi) of the details of expenditure made during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has stated that as the official residence was in her name hence the bill was also issued in her name but it was paid by her husband.(Q76) Accused has not produced any document to prove that it was paid by her husband. Prosecution has clubbed income of accused and her husband hence accused is not entitle for any benefit in this regard.
167 Prosecution vide Ex.PW14/A (D53) and from the statement of PW14 Guru Mohan Duggal has proved that accused had repaid an amount of Rs. 28,580/- of car loan from 30.6.95 to 30.7.96 to M/s Countrywide Consumer Finance Ltd. as shown at serial No. D (a) (vii) of the details of expenditure made during the check period in the charge sheet. Accused in her statement recorded U/s 313 Cr PC has admitted it correct. (Q77).
168 Prosecution in charge sheet at serial No. D (a) (viii) of the details of expenditure made during the check period in the charge sheet has mentioned that accused had paid Rs. 3717/- for her car insurance but prosecution has not produced any evidence to prove it, hence this amount cannot be added in the expenditure of accused.
169 According to prosecution accused had spent Rs.70,951/- on household expenses as shown at serial No. D (b) (a) of the details of expenditure made during the check period in the charge sheet. Prosecution has taken check period w.e.f. 1.11.92 to 16.8.96. which comes to more than 45 months. Thus, the household expenses assessed by the prosecution comes to between Rs.1500 and 1600/- per month. After considering the status of accused, this amount appears to be on lower side. Our Hon'ble Supreme Court in Sajjan Singh Vs. State of Punjab, AIR 1964 SC 464 has held that upto 1/3rd of salaried income of a person can be assessed as living expenses. Even this fact has not been disputed during the course of arguments by the Ld. Defence Counsel on behalf of accused. Thus, this court is of opinion that prosecution has proved that accused had spent Rs.70,951/- as living expenses during the check period.
170 Though, Prosecution has alleged that accused Runu Ghosh and her husband spent a total amount of Rs.4,24,371/- during the check period but prosecution could prove their expenditure of Rs.4,20,654)/- (4,24,371-3717) 171 In view of above discussion prosecution has proved that assets of accused at the beginning of check period were of Rs.10,80,808.00 while the accused was found in possession of Assets at the end of check period in her name or that of her husband or her minor son of total value of Rs. 39,75,021/-, thus accused had acquired assets during the check period of Rs. 28,94,213/-. Prosecution has proved the total earning of accused and her husband during the check period of Rs.12,19,960/-. Prosecution has proved the total expenditure made by accused and her family members of Rs. 4,20,654/-.. Thus, the total saving of accused and her family members during the check period comes to Rs. 7.99,306/- while the accused was found in possession of assets of total value of Rs.28,94,213/-. Thus accused was found in possession of disproportionate assets of total value of Rs.20,94,907/- which she could not satisfactorily explained even in this court.
172 In view of above discussion this court is of opinion that prosecution has proved its case beyond reasonable doubt that accused had acquired disproportionate assets valuing of Rs.20,94,907/- to her known sources of income during the check period which she could not satisfactorily explain even in this court, hence I hold accused guilty U/s 13 (2) r/w Sec. 13 (1) (e) of P C Act, 1988.
Announced in open court ( V K MAHESHWARI) on this 12th day of May, 2009 SPECIAL JUDGE; DELHI