Jharkhand High Court
(Against The Common Judgment Of ... vs The State Through C.B.I on 4 November, 2020
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.100 of 2017
With
Cr. Appeal (SJ) No.153 of 2017
With
Cr. Appeal (SJ) No.187 of 2017
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(Against the common Judgment of conviction and Order of Sentence dated
14.12.2016 passed by learned Special Judge, C.B.I/ACB, Ranchi in R.C.
Case No.04(A)/2010-AHD-(R))
------
Sushila Devi, Wife of Hari Narayan Ray, Resident of Sonaraythari, P.O. &
P.S. Sonaraythari, District Deoghar-814150 (Jharkhand)
.... .... .... Appellant (In Cr. Appeal (SJ) No.100 of 2017)
Sanjay Kumar Ray, Son of Late Nilkanth Ray, Resident of Sonaraithari,
P.O. & P.S. Sonaraithari, District Deoghar-814150 (Jharkhand)
.... .... .... Appellant (In Cr. Appeal (SJ) No.153 of 2017)
Hari Narayan Rai, Son of Late Nilkant Ray, Resident of Sonaraythari, P.O.
& P.S. Sonaraithari, District Deoghar-814150 (Jharkhand)
.... .... .... Appellant (In Cr. Appeal (SJ) No.187 of 2017)
Versus
The State through C.B.I. .... .... .... Respondent
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For the Appellants : Mr. Sanjeev Kumar, Sr. Advocate
For the C.B.I. : Mrs. Nitu Sinha, Advocate
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PRESENT
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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
C.A.V. ON 25.08.2020 PRONOUNCED ON 04.11.2020
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Anil Kumar Choudhary, J.
Heard the parties through video conferencing.
1Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017
2. At the outset it is made clear that the surname of the appellant Hari Narayan Rai has been mentioned as 'Ray' in the impugned judgment as well as in his signature appearing on the Vakalatnama filed along with this appeal, accordingly the name of Hari Narayan Rai has been mentioned as Hari Narayan Ray in this judgment. Since these three appeals have been preferred against the common judgment of conviction and order of sentence dated 14.12.2016 passed by the Special Judge, C.B.I/ Anti-Corruption Bureau, Ranchi in R.C. Case No.04(A)/2010-AHD- (R), hence, all these appeals are disposed of by this common judgment. The appellant Hari Narayan Ray has been held guilty for being a public servant functioning as a Member of Jharkhand Vidhan Sabha and Minister in the State of Jharkhand between the period March, 2005 to 2009 acquired and found in possession of assets disproportionate to his known sources of income worth Rs.1,46,25,354/- in his name and in the name of his brother and co-convict Sanjay Kumar Ray and his wife and co-convict Smt. Sushila Devi during the check period from 10.03.2005 to 31.03.2009 which the appellant could not satisfactorily account for and has been convicted for the offences punishable under Sections 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988. The appellants Sanjay Kumar Ray and Smt. Sushila Devi have been held guilty for actively abetting the co-convict Hari Narayan Ray in commission of offence of criminal misconduct of acquiring property in their names though both of them were not having sufficient means of income to acquire such huge property in their names and both these appellants helped the co-convict Hari Narayan Ray to purchase the property in their names to avoid its detection and have been convicted for the offences punishable under Section 109 of the Indian Penal Code and Sections 13 (2) read with 13 (1)
(e) of the Prevention of Corruption Act, 1988. All these three appellants have been sentenced to undergo rigorous imprisonment of five years and to pay fine of Rs.50,000/- each and in default to undergo for simple imprisonment for six months for the said offences committed by them.
3. The brief facts of the case is that Complaint Case No.02 of 2008 was filed before the court of Vigilance-cum-Additional Judicial Commissioner, 2 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Ranchi alleging therein that the convict Hari Narayan Ray and Anosh Ekka who was the Minister of State of Jharkhand, have committed the offences punishable under Sections 406, 409, 420, 423, 424, 465, 120-B of the Indian Penal Code and Section 11/ 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988. The allegation against the appellant Hari Narayan Ray is that he was elected from Jarmundi Legislative Assembly Constituency in the year 2005 and was the Minister, Town Development and Tourism Development, Government of Jharkhand, Ranchi. It was further alleged that the appellant Hari Narayan Ray furnished the details of property before the Election Commissioner as follows:
(a) Cash of Rs.10,000/-
(b) Bank Deposit- Rs.6,000/-
(c) Others NSC, LIC etc.- Rs.1,25,000/-
(d) Land- 5.5 acre
(e) Agriculture land and jewelry in the name of his wife amount about Rs.50,000/-
It is further alleged that at the time of filing of his nomination in the year 2005, his income was neither taxable nor did he has any PAN number and after becoming Minister in March, 2005 till 2008, salary of the convict Hari Narayan Ray was around 15.39 lakhs besides his agricultural income out of which the appellant- Hari Narayan Ray fulfilled his basic requirements by himself as well as other members of his family. It was alleged that even considering all the incomes and expenditure, the net asset of the appellant ought not be worth more than Rs.15.30 lakhs. But from his income from other sources he has acquired property worth Rs.30.18 lakhs. It is also alleged that the appellant acquired the following properties during the check period:-
Sl Description of property Market No. price
1. Harmu, Ranchi (under 1.40 construction, 4259 sq. ft. land, crores
4 storied building) 3 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017
2. Dairy Farm in village 6 lakhs Sonaraythari (1 acre land)
3. Expenses incurred in 12 lakhs construction of the farm (shed, lawns, pumps etc.)
4. Estimated cost of milk giving 14 lakhs cattle (70 cows & buffalos)
5. Pond construction (1 acre 16 lakhs land worth Rs.6 lakh, excavation expenses around 10 lakhs)
6. Paternal House (new 50 lakhs building) in 1 acre land, imported marble, Air conditioned rooms etc.
7. Bampus Town, Deoghar 20 crore situated house (1 acre land worth 7 Crores, 18 rooms, AC rooms, imported marbles, suite, 2 Storied building)
8. Seth Surajmal Jalan Road, 7.50 Deoghar situated house and crores land (4866 sq. feet land worth Rs.6 crores & building worth 1.50 crores)
9. 1/2 Dozen Car ( Innova, 30 lakhs Bolero, Marshall, Scorpio for all family members) Besides it was alleged that the appellant- Hari Narayan Ray purchased 4259 sq. feet of land situated at plot No.H-35 at Harmu, Ranchi in the name of his wife and co-appellant Sushila Devi by mentioning that 4 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 the appellant- Sushila Devi is the wife of one Ganesh Ray but in fact the said Ganesh Ray is the father of Sushila Devi and not her husband. Further allegation was made that the appellants-accused have crossed all the limits of corruption and misappropriation of money of public at large and are using the same for their personal benefit and have acquired properties worth crores of rupees within a short span of 2½ to 3 years of becoming the Minister of State of Jharkhand. The complaint petition was sent by the court to the Vigilance Police Station under Section 156 (3) Cr.P.C. for verification and investigation basing upon which Vigilance P.S. Case No.96 of 2008 was registered. During the pendency of the investigation, a Bench of this Court in W.P. (PIL) No.4700 of 2008 and 2252 of 2009 directed the investigation to be taken up for investigation by the C.B.I. vide order dated 04.08.2010. Prior to that the Vigilance Bureau has already filed charge-sheet for possessing disproportionate assets by the appellant- Hari Narayan Ray and Anosh Ekka. After investigation of the case, C.B.I. submitted charge-sheet against the three appellant-convicts for having committed the offences punishable under Sections 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988 and Section 109 of the Indian Penal Code. In the charge-sheet it was submitted that the appellant- Hari Narayan Ray after becoming a Minister, floated a construction firm in the name and style of M /s Mahamaya Construction and M/s Maa Gauri Construction in which the appellants Sushila Devi and Sanjay Kumar Ray are the major shareholders. The said two firms were registered as a Class 1A contractor by the Rural Works Department (erstwhile REO) of Government of Jharkhand in spite of the fact that the said two firms did not fulfill the eligibility criteria for being registered as such. The said two firms got huge work orders from the Rural Development Department and Rural Works Department from the Government of Jharkhand. The Rural Development Department was under the control of Anosh Ekka and Rural Works Department was under
the control of Hari Narayan Ray. It was further alleged in the charge-sheet that the appellant- Hari Narayan Ray was elected from Jarmundi Vidhan Sabha Constituency and took oath as M.L.A., Jharkhand Vidhan Sabha on 5 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017
10.03.2005 and he continued as such till 31.10.2009. The appellant- Hari Narayan Ray was again elected from the same constituency and took oath as M.L.A., Jharkhand Vidhan Sabha on 08.01.2010. The appellant- Hari Narayan Ray took oath as a Minister of the Government of Jharkhand on 12.03.2005 and continued as such till 19.12.2008. During his tenure as a Minister, the appellant- Hari Narayan Ray held the portfolios of different departments like Rural Engineering Organization (later named as Rural Works Department), Forest and Environment, Urban Development and Tourism. The appellant- Hari Narayan Ray married the appellant- Sushila Devi wherein the appellant- Hari Narayan Ray acquired unaccountable assets in his name and his three brothers namely Sanjay Kumar Ray, Nandlal Ray and Dev Narayan Ray. His brothers Dev Narayan Ray and Nandlal Ray are public servants with petty salary and Sanjay Kumar Ray is a private person. The appellant- Hari Narayan Ray has been shown to have been running a Dairy Farm in the name and style of M/s. Baba Basuki Dairy in partnership with Smt. Sushila Devi. During his tenure as Minister and M.L.A., the appellant- Hari Narayan Ray has acquired most of his assets either in his own name or in the name of the appellants Smt. Sushila Devi and Sanjay Kumar Ray. So, the check period in this case has been selected from 10.03.2005 to 31.03.2009. It is alleged that the appellant- Hari Narayan Ray filed an affidavit on 04.02.2005 before the Returning Officer listing his assets. His assets at the beginning of the check period have been ascertained on the basis of his affidavit are as follows:-
Particulars of assets Value Rs. In the name of Hari Narayan Ray Cash 40000 Deposits in banks etc. 5000 Other financial instruments 125000 Total 170000
The appellant- Hari Narayan Ray acquired assets during the check period in his own name, in the name of his wife Smt. Sushila Devi and his brother Sanjay Kumar Ray and huge investments have been made in Post 6 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Office in the name of Smt. Sushila Devi and Sanjay Kumar Ray. The income of the appellant- Smt. Sushila Devi and Hari Narayan Ray declared in their income tax returns does not justify their assets. Hence, the C.B.I. took into account both the assets and income of Smt. Sushila Devi and Sanjay Kumar Ray for computing disproportionate assets of the appellant- Hari Narayan Ray. The C.B.I. also included a fixed deposit certificate account No.493945110000655 in Bank of India, Pandra Branch amounting to Rs.20,00,000/- issued in the name of M/s Mahamaya Construction in the assets of the appellant- Smt. Sushila Devi because at the time of investing this money, M/s Mahamaya Construction had no income or receipt from any other source. The DBD certificate was purchased by Smt. Sushila Devi from the money borrowed by her in form of cheque issued in her own name by M /s. Khalari Cement. This borrowed amount of Rs.20,00,000/- was repaid before 31.03.2009 by the appellant- Smt. Sushila Devi. The said DBD was invested by Smt. Sushila Devi as partner's capital/share in M/s. Mahamaya Construction. So, the assets found at the end of the check period are as follows:-
Particulars of assets Date of Value Rs.
acquisition In the name of Hari Narayan Ray Valuation of Newly 2005-09 852500 constructed house in front of ancestral house at SonaRaythari, Deoghar NP bore 306 rifle bearing 9.1.07 16875 No.1988 make Winchester along with 30 Pcs of cartridges purchased from Bihar Gun House NP bore pistol (.32) bearing 7.6.07 16875 No.38227 make Colt along with 50 Pcs of cartridges 7 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 purchased from Bihar Gun House Scorpio SLX CRD Vehicle 24.4.06 849817 No. JH 01P 2800 purchased from M/s Nexgen Solution Technologies (P) Ltd., Dhurwa, Ranchi 16 Shares of Reliance Power 4.2.08 6880 Balance in SB A/c No. 8821 75900017498 in Syndicate Bank, Tilakpur Branch, Deoghar Balance in SB A/c No. 59680 10923784185 in SBI, Doranda, Ranchi Balance in A/c No. 3251 in 42167 Vananchal Gramin Bank, SonaRaythari In the name of Sushila Devi Valuation of House at H-35, 2007-08 5700000 Harmu Housing Colony, Ranchi Investment in time deposit 26.6.08 200000 A/c No.150101875 in HPO Doranda Investment in time deposit 26.6.08 180000 A/c No.150101876 in HPO Doranda Investment in time deposit 11.8.08 414000 A/c No.131500496 in HSL PO Doranda Investment in time deposit 25.8.08 380000 A/c No.131500498 in HSL 8 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 PO Doranda Investment in time deposit 25.8.08 720000 A/c No.131500499 in HSL PO Doranda Investment in A/c 14.3.08 248600 No.150101749 in HPO, Doranda Investment in A/c 14.3.08 322600 No.150101750 in HPO, Doranda Investment in A/c 7.6.08 250000 No.150101866 in HPO, Doranda Investment in A/c 7.6.08 250000 No.150101867 in HPO, Doranda Investment in A/c 25.4.08 450000 No.150101775 in HPO, Doranda Investment in time deposit 25.4.08 300000 a/c No.420227 in Court Post Office, Deoghar Investment in time deposit 25.4.08 250000 a/c No.420228 in Court Post Office, Deoghar Investment in time deposit 25.4.08 250000 a/c No.420229 in Court Post Office, Deoghar Balance in A/c No.14 in 15000 Vananchal Kshetriya Gramin Bank, SonaRaythari , Deoghar Balance in SB A/c No.3746 538 9 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 (new 75922200021206) in Syndicate Bank, Tilakpur Branch, Deoghar Fixed Deposit A/c 2.5.08 2000000 No.493945110000655 in Bank of India, Pandra Branch in the name of M/s Mahamaya Construction, money invested by Smt. Sushila Devi In the name of Hari Narayan Ray and Sushila Devi Balance in Joint A/c 10534 No.493910110000567 in Bank of India, Pandra Branch, Ranchi.
Balance in SB A/c 9447 No.491010100008252 in Bank of India, Shyamali Br., Ranchi. In the name of Sanjay Kumar Ray Valuation of house of Sanjay 2006-09 3309000 Kumar Ray, at Bompass Town, Deoghar True copy of Sale deed 2.6.06 174354 No.1804 dt. 2.6.06 regarding purchase of 2028 sq.ft. land at Shyamganj, Castairs Town, Deoghar (includes stamp and registration charge) True copy of Sale deed 14.7.06 196934 10 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 No.2380 dt. 14.7.06 regarding purchase of 1707 sq.ft. land at Shyamganj, Castairs Town, Deoghar (includes stamp and registration charge) Investment in Time Deposit 30.1.08 100000 A/c No.151400135 in HEC Expert Hostel PO, Ranchi. Investment in Time Deposit 30.1.08 100000 A/c No.151400136 in HEC Expert Hostel PO, Ranchi. Investment in Time Deposit 30.1.08 100000 A/c No.151400137 in HEC Expert Hostel PO, Ranchi. Investment in Time Deposit 30.1.08 100000 A/c No.151400138 in HEC Expert Hostel PO, Ranchi. Investment in Time Deposit 30.1.08 100000 A/c No.151400139 in HEC Expert Hostel PO, Ranchi. Investment in Time Deposit 30.1.08 100000 A/c No.151400140 in HEC Expert Hostel PO, Ranchi. Investment in Time Deposit 30.1.08 90000 A/c No.151400141 in HEC Expert Hostel PO, Ranchi. Investment in Time Deposit 30.1.08 80000 A/c No.151400142 in HEC Expert Hostel PO, Ranchi. Investment in Time Deposit 30.1.08 100000 A/c No.151400143 in HEC Expert Hostel PO, Ranchi. 11 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Investment in Time Deposit 4.4.08 330000 A/c No.420223 in Deoghar Court PO, Ranchi. In the name of Sushila Devi and Sanjay Kumar Ray Balance in SB A/c No.8174 in 850 Vananchal Gramin Bank, SonaRaythari Branch Deoghar In the name of Hari Narayan Ray, Sushila Devi and Sanjay Kumar Ray Valuation of Dairy Farm at 2007-09 2703900 SonaRaythari, Deoghar In the name of Hari Narayan Ray, Sanjay Kumar Ray and Tuleshwar Ray Valuation of construction 2007-09 2103000 made at Fish Pond at SonaRaythari, Deoghar Total 2,34,92,372/-
4. It was also alleged that the appellants- Hari Narayan Ray, Smt. Sushila Devi and Sanjay Kumar Ray have declared their income to be accrued from many other sources apart from the salary. So, for calculating their income, their Income Tax Returns have been taken into account apart from the salary statements of the appellant- Hari Narayan Ray. It is also alleged that the appellant- Smt. Sushila Devi has taken the plea before the Enforcement Directorate authorities that she took loan in 2008 from different persons namely B.K. Tripathi, K.N.P. Singh, Nandlal Ray, Dev Narayan Ray and his wife Smt. Lata Ray to the extent of Rs.8.5 lakhs, Rs.8 lakhs, Rs. 7.5 lakhs, Rs.5 lakhs and Rs.5 lakhs respectively. However, B.K. Tripathi and K.N.P. Singh have made it clear in their statement that the 12 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 appellant-Hari Narayan Ray had given them cash and taken cheques from them of the equivalent amount and asked them to treat these transactions as loan and Nandlal Ray and Dev Narayan Ray are public servants with petty salary and they are working as Para-teacher and Panchayat Sewak on monthly salary of Rs.4,500/- and Rs.7,500/- respectively and they do not have any bank account. Their income tax returns reveals as under:-
IT return of A.Y. 2007-08 A.Y. 2008-09 A.Y. 2009-10 Deo Narayan Income from Income from Income from Ray for AV Salary- Rs. Salary- Rs. Salary- Rs.
2007-08, 2008- 80,736/- 80,736/- 91,316/- 09 and 2009- 10 filed on Deduction U/s Deduction U/s Deduction U/s 80C - Rs. 480/- 80C - Rs. 480/- 80C - Rs. 91,316/-
10.02.2009,
29.9.09 and
17.08.09,
respectively
i.e. after
institution of
case by
Vigilance
PAN-
Agricultural Agricultural Agricultural
AKBPR9062Q income- Rs. income- Rs. income- Rs.
1,72,400/- 1,82,500/- 1,92,500/-
IT return of A.Y. 2007-08 A.Y. 2008-09 A.Y.2009-10
Nand Lal Ray
Not available Income from Income from
for AY 2007-
Salary- Rs. NIL. Salary- Rs. NIL.
08, 2008-09
and 2009-10
filed on Income from Income from
business Rs. business Rs.
29.03.2009
97,450/- 98,650/-
and 17.08.09,
respectively
Income from other Income from other
i.e. after sources- Rs. sources- Rs.
6,700/- 12,700/-
institution of
13
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
case by
Vigilance
PAN- Income from Income from
agriculture - agricultural - Nil
AHSPR8642H
Rs.1,85,000/-
5. As per the report of Circle Officer, Sarwan though the said two brothers of the appellant- Hari Narayan Ray and their share of agriculture land in Sonaraythari, cannot generate annual income of more than Rs.1,11,332/- yet they have declared more income from agricultural source which is evident from the Income Tax Returns for the financial year 2006-07 filed belatedly in 2009. These circumstances lead to inference that the claims of the appellants regarding these loans are false.
It is also alleged that Smt. Sushila Devi is shown to have invested Rs.42,15,200/- in the year 2008 in Post Office which were invested in M/s. Mahamaya Construction and deposited as security on behalf of the said firm. These investments were made in cash. The appellant- Sanjay Kumar Ray is shown to have invested Rs.12 lakhs in the year 2008 in Post Office which were invested in M/s Maa Gauri Construction and deposited as security deposit on behalf of the said firm. Such investments were made in shape of cash. The appellant Sushila Devi and Sanjay Kumar Ray have declared huge income of Rs.18,53,610/- in the Income Tax Return of M/s Baba Basuki Dairy during the financial year 2008-09 though the said farm has not been maintaining any books of accounts nor there is any known government payment which might have accrued to that firm. It is in the absence of any verification of actual source or the person from whom this huge amount of money has accrued to the appellants in such a short span of time. So, this income has not been taken into account as genuine income. The appellant- Hari Narayan Ray has declared an income of Rs.18,12,141/- in his Income Tax Returns for the financial year 2008-09 out of which an income of Rs.14,29,741/- has been declared as income from business. The appellant- Hari Narayan Ray has not been maintaining any books of accounts for this business. Therefore, that income has not been taken into account as a genuine income. Accordingly, the income accrued 14 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 to the appellant has been computed as follows:-
STATEMENT C (INCOME ACCRUED DURING THE CHECK PERIOD) Particulars of Date of income Amount Rs.
income
In the name of
Harinarayan Ray
Gross salary as per F/Y. 2005-06 362308
salary statement
F/Y. 2006-07 523532
F/Y. 2007-08 432500
F/Y. 2008-09 235000
Income from 2005-09 445328
agriculture as per
report of the Circle
Officer
Other income as 2005-09 14968
declared in Income
Tax Returns
Motor Car Advance Feb'06 500000
received from
Secretariat Treasury,
Project Bhawan,
Ranchi
Loan from Farm 26.7.05 300000
House Loan A/c
No.20050031 (new
75927220000189) in
Syndicate Bank,
Tilakpur Branch,
Deoghar
Loan from Dairy 1.11.07 - 4.7.08 875000
Loan A/c
No.20070007 in
15
Cr.App(SJ)100 of 2017
With
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With
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Syndicate Bank,
Tilakpur Branch,
Deoghar
In the name of
Sushila Devi
Gross Total Income Financial year 106742
declared in IT 2008-09
return
Gross Total Income Financial year 534734
declared in IT 2007-08
return
Gross Total Income Financial year 279971
declared in IT 2006-07
return
Gross Total Income Financial year 266400
declared in IT 2005-06
return
Loan from Personal 7.11.08 489990
loan account
No.14035806 in
HDFC Bank Ltd.,
Main Road Br.,
Ranchi
Amount received as
advance rent from
M/s Innovative
July - Sept'08 1900000
Infra Project Pvt.
Ltd. And M/s
Sondhi Dealers Pvt.
Ltd. who entered
into agreement with
Sushila Devi for
hiring two floors of
16
Cr.App(SJ)100 of 2017
With
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With
Cr.App(SJ)187 of 2017
her house being
constructed at H-35,
Harmu Housing
Colony, Ranchi.
Drawings made 2008-09 2300000
from the account of
M/s Mahamaya
Construction
In the name of Hari
Narayan Ray and
Sushila Devi
Loan from Housing
Loan (A/c
From 20.03.08 to 17.04.08 1500000 No.493975110000013 in Bank of India, Pandra Br., Ranchi for construction of house at HIG plot No. H/35, Harmu Housing Colony, Ranchi In the name of Sushila Devi and Sanjay Kumar Ray Loan from 28.2.08 1582500 Agricultural Term Loan (A/c No.1/312 taken from Vananchal Gramin Bank, SonaRaythari, Deoghar In the name of 17 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Sanjay Kumar Ray Gross Total Income Financial year 125402 declared in IT 2005-06 return Gross Total Income Financial year 135148 declared in IT 2006-07 return Gross Total Income Financial year 332706 declared in IT 2007-08 return Gross Total Income Financial year 97490 declared in IT 2008-09 return Drawings made 2008-09 850000 from the account of M/s Maa Gauri Construction MTFL Loan from 20.12.07 450000 United Bank of India, RKMV Branch, Deoghar In the name of Sanjay Kumar Ray HUF Gross Total Income Financial year 108130 declared in IT 2005-06 return Gross Total Income Financial year 148340 declared in IT 2006-07 return Gross Total Income Financial year 269230 declared in IT 2007-08 return 18 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Gross Total Income Financial year 362200 declared in IT 2008-09 return Total 1,55,27,619/-
6. It is further alleged that most of the expenditure incurred by the accused persons is on account of payment of LIC premium, repayment of loan and payment of income tax. The expenditure on purchasing the land in Harmu Housing Colony, Ranchi has been taken on the basis of the statement of the contractor who was instrumental in this deal and he is the same contractor who also constructed the house on this land for the appellants- Smt. Sushila Devi and Hari Narayan Ray. The details of the expenditure are as follows:-
STATEMENT D (EXPENDITURE INCURRED DURING THE CHECK PERIOD) Particulars of Date of Amount Rs.
expenditure expenditure In the name of Harinarayan Ray Taxes paid as per IT F/Y 2008-09 32109 return Taxes paid as per IT F/Y 2007-08 87109 return Taxes paid as per IT F/Y 2006-07 90761 return Taxes paid as per IT F/Y 2005-06 45190 return Repayment of Motor March'06-Feb'08 290000 Car Advance Repayment of Farm 222476 House Loan A/c No.20050031 (new 75927220000) in 19 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Syndicate Bank, Tilakpur Branch, Deoghar Repayment of Dairy 284534 Loan A/c No.20070007 (new 75927220000) in Syndicate Bank, Tilakpur Branch, Deoghar Interest paid into the 26.9.05 to 29.10.06 24648 Term Loan Express Credit (Personal) A/c No.10924055388 at SBI, Doranda Br. Interest paid into the 2005-2007 20539 Term Loan A/c No.3000752915-9 in SBI, Personal Banking Branch, Raj Hospital Complex, Ranchi Premium paid to 24.4.07 21035 ICICI Lombard for insurance of Scorpio vehicle No. JH01P2800 for the period 24.04.07 to 23.04.08 Premium paid for 9.2.07 50000 Bajaj Allianz LIC Ltd. Policy No. 0038640966 (letter dt. 20 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 20.09.10 of Anup Kumar Bhuwania, RM, Doranda, Ranchi) -do- 29.4.08 50000 Premium paid for 10.2.07 50000 Bajaj Allianz LIC Ltd. Policy No. 0038813420 (letter dt. 20.09.10 of Anup Kumar Bhuwania, RM, Doranda, Ranchi) Premium paid for 10.2.07 50000 Bajaj Allianz LIC Ltd. Policy No. 0038813685 (letter dt. 20.09.10 of Anup Kumar Bhuwania, RM, Doranda, Ranchi) -do- 28.8.08 50000 Premium paid for 10.2.07 50000 Bajaj Allianz LIC Ltd. Policy No. 0038814434 (letter dt. 20.09.10 of Anup Kumar Bhuwania, RM, Doranda, Ranchi) -do- 27.8.08 50000 Premium paid for 13.6.05 100000 HDFC Standard Life 21 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Policy No. 10298777 (letter dt. 27.09.10 of Gautam Bose, Branch Head, HDFC, Standard Life Insurance Co. Ltd.) -do- 18.7.06 100000 -do- 16.7.07 100000 Premium paid 31.3.06 to 28.5.07 206457 towards LIC Policy No.554868506 of LIC Br.III, Hinoo, Ranchi Premium paid 4.6.07 101755 towards LIC Policy No.555321567 of LIC Br.III, Hinoo, Ranchi Kitchen expenses Upto 31.3.09 373644 (1/3rd of the net salary income of Sri Hari Narayan Ray) In the name of Sushila Devi Income Tax paid as Financial year 50000 per IT return 2008-09 Income Tax paid as Financial year 87191 per IT return 2007-08 Income Tax paid as Financial year 4876 per IT return 2005-06 Expenditure incurred 2008 2683435 on purchase of land plot at H-35, Harmu Housing Colony Repayment to 58735 22 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Personal loan account No.14035806 in HDFC Bank Ltd., Main Road Br., Ranchi Premium paid for 21.6.05 100000 HDFC Standard Life Policy No. 10305191 (letter dt. 27.09.10 of Gautam Bose, Branch Head, HDFC, Standard Life Insurance Co. Ltd.) -do- 18.7.06 100000 -do- 16.7.07 100000 Premium paid 31.3.06 to 28.5.07 201276 towards LIC Policy No.554865988 of LIC Br.III, Hinoo, Ranchi In the name of Hari Narayan Ray and Sushila Devi Repayment made 162964 towards Housing Loan (A/c No. 493975110000013 in Bank of India, Pandra Br., Ranchi for construction of house at HIG plot No. H/35, Harmu Housing Colony, Ranchi) 23 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Expenditure on 16.6.06 100000 investment in FD A/c No.4194045100002027 in Bank of India Shyamali Branch. In the name of Sushila Devi and Sajay Kumar Ray Repayment made to 645210 Agricultural Term Loan (A/c No. 1/312) taken from Vananchal Gramin Bank, SonaRaythari, Deoghar In the name of Sanjay Kumar Ray Income Tax paid as Financial year 56657 shown in IT return 2007-08 Repayment made to Upto 31.3.09 30000 United Bank of India, RKMV Branch, Deoghar MTFL Loan A/c No. 1422300001472 Total 68,30,601/-
CALCULATION OF ASSETS OF SRI HARI NARAYAN RAY FOUND DISPROPORTIONATE TO THE KNOWN SOURCES OF INCOME WHICH THE ACCUSED CANNOT SATISFACTORILY ACCOUNT FOR Statement A (ASSETS AT THE BEGINNING OF Rs.1,70,000/-24
Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 THE CHECK PERIOD) Statement B (ASSETS AT THE END OF THE Rs.2,34,92,372/- CHECK PERIOD) Statement C (INCOME ACCRUED DURING THE Rs.1,55,27,619/- CHECK PERIOD) Statement D (EXPENDITURE INCURRED Rs.68,30,601/- DURING THE CHECK PERIOD) Assets found disproportionate to the known Rs.1,46,25,354/- sources of income which the accused cannot satisfactorily account for (B-A-C+D) Percentage of disproportionate Assets over and 94% above income
7. In the charge-sheet it has been alleged that the appellants have committed the offence punishable under Section 109 of the Indian Penal Code and Section 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988. In respect of the appellant- Hari Narayan Ray charge was framed for having committed the offence punishable under Section 109 of the Indian Penal Code and Section 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988 on 28.08.2012. Charge for the appellants- Smt. Sushila Devi and Sanjay Kumar Ray were framed for having committed the offences punishable under Section 109 of the Indian Penal Code and Section 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988 on 15.05.2014. The appellants pleaded not guilty to the charges and claimed to be tried.
8. In support of its case, the prosecution altogether has examined 91 witnesses whereas 6 witnesses have been examined on behalf of the defence. Besides the oral testimony, the prosecution has examined the relevant documents which have been marked Ext.1 to Ext.78/1.
9. Out of the witnesses examined by the prosecution PW1 and PW3 have stated about purchase of fire arms and Scorpio vehicle respectively by the appellant- Hari Narayan Ray. PW2 is an officer of the Legislative Assembly he has stated about the tenure of the appellant- Hari Narayan 25 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Ray as member of Legislative Assembly being from 10.03.2005 to 31.10.2009 and he was also elected for the subsequent Vidhan Sabha (Which was the third Vidhan Sabha) and took oath on 08. 01.2010 and was continuing as such till the examination of the PW2 as a witness in Court.
PW4 to 9, 12 to 14, 17, 22, 27, 31, 37, 41, 42, 78, 89 and 91 are the officers of various banks who have stated about the Bank accounts, deposits, account opening forms, introducers, overdrafts, transactions and loans of the three appellants and their firms. PW10, 11 and 51 are the revenue officials who have deposed about the landed property of the appellants being in jointness with the two other brothers of the appellant- Hari Narayan Ray. PW11 deposed that property of Nil Kanth Ray father of Hari Narayan Ray is 16 acre 85 ½ decimal out of which 14.53 acre of land is cultivable. Nil Kanth Ray has four sons and agriculture was done jointly. PW11 also stated that from 2005 to 2011 agriculture income of Hari Narayan Rai and his brothers was Rs. 1,11,332/- annually. PW15 is an Assistant of the Treasury. He has deposed about the salary earned by Hari Narayan Ray, motor Car advance taken by him, part repayment made by him. He has proved Exhibit 6/4- the letter where in the said details has been mentioned. PW17, 19, 20, 40, 71 and 85 are the officers of the insurance Companies who have deposed about the various insurance policies of the three appellants and the premiums deposited. PW21 is an Income Tax Officer who proved the Income Tax Returns of the appellant filed both as HUF and in his individual capacity. PW23 has proved application form of Hari Narayan Ray for purchase of 225 share of Reliance Power and also the statement of D-mat account of the appellant Sushila Devi.
10. PW24 has proved income-tax return of the appellants Hari Narayan Ray and Sushila Devi. PW25 is a Sub-Postmaster. He proved the account opening form of the appellant Sanjay Kumar Ray in the name of M/s Maa Gauri Construction with the post office and also proved the documents of all other accounts of the appellant Sanjay Kumar Ray with the Post Office. PW26 has proved letter no. 1461 dated 10.10.11 and letter no. 1484 dated 14.10.11 as Ext. 45 and 45/1, which shows that the appellant Hari Narayan Ray was a minister in the different departments from 12.03.2005 to 26 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 19.12.2008. PW28 was posted as Assistant Postmaster at H.P.O., Doranda. He has stated in detail about the Accounts in the name of Sushila Devi and M/s Mahamaya Construction. PW29 and 30 have stated in detail about the five accounts in the name of Sushila Devi and M/s Mahamaya Construction, in the Post Office. PW32 has proved the sale deed No.1804 dated 02.06.2006 through which Anant Jain has sold property to the appellant Sanjay Kumar Ray. PW33 and 49 have stated that in the financial year of 2007-08 a cheque was issued to M/s. Samridhi Travel, in lieu of cash. PW34, 38 and 62 have stated that Khelari Cement issued a cheque of Rs.20 lakh in the name of the appellant Sushila Devi. PW35 has deposed about two cheques being issued by KNP Singh dated 25.01.2008 and 23.02.2008 in the name of Sushila Devi for Rs.3 lakh. PW36 stated that he was introducer of the A/c No.01190071350 of the appellant Hari Narayan Ray. PW39 has stated in detail about the constitution of the partnership firm M/s Mahamaya Construction and its financial transactions. PW43 has deposed about transfer of plot No.H/35 to the appellant Sushila Devi upon consideration amount being paid by her. PW44 stated giving cheques of Rs. 8,00,000/- to the appellant Sushila Devi in lieu of cash. PW45, 64 and 65 have deposed that for taking first floor and second floor at H/35 Harmu Colony, Ranchi, Rs.19 lakhs were given to the appellant Sushila Devi by them but the said premises was not given to his two firms with which the appellant Sushila Devi entered into agreement. PW66 in this respect has stated that Hari Narayan Ray told him that he is constructing a house in Harmu, Ranchi. Then P.W.66 made a proposal for office space for the aforesaid two firms and Hari Narayan Ray agreed for the same. For taking office space at first floor and second floor of Hari Narayan Ray's house Rs.10 lakh and Rs.9 lakh were given as advance for office space by the companies namely M/s. Innovative and M/s. Songhi Dealers. The aforesaid advance amount was paid in the name of Sushila Devi and the P.W.66 gave the same to Hari Narayan Ray. PW46 has stated that Work order dated 29.03.2008 for Rs.1,24,33,908/- was issued in the name of Mahamaya Construction and against this work order total amount of Rs.6,28,600/- was deposited as security money in 27 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 the form of T.D. passbook. PW47 deposed that he filed the Income Tax returns of Sanjay Kumar Ray and Sanjay Kumar Ray HUF, M/s Mahamaya Construction, M/s Maa Gauri Construction and M/s Baba Basuki Dairy. He has made a general audit of M/s Baba Basuki Dairy and at that time turnover was below Rs.40 lakh. He also proved the Audit report of M/s Maa Gauri Construction and M/s. Mahamaya Construction which were prepared by him. PW48 was introducer of the appellant Hari Narayan Ray to the bank. PW50 proved the five years T.D. account opening form of the appellant Sanjay Kumar Ray. PW52 proved the letters addressed to S.P., C.B.I., Ranchi, through which Income Tax Returns of the persons mentioned were sent under his signature. PW53, 72 and 73 have stated about the sale deeds Ext 48 and 48/1 by which the appellant Sanjay Kumar purchased the property mentioned therein for Rs.1,66,000/- and Rs.1,87,500/- respectively. PW54 has stated about the deposits of the appellant Sushila Devi with the Post Office. PW55 has stated that on bank locker No.25 which was in the name of Hari Narayan Ray and Sushila Devi was searched in his presence by CBI team in presence of Sushila Devi and Kameshwar Ray and from the said locker DVD Certificate No.751238 was recovered. He proved the search-list which was prepared in front of him and which bore his signature also.PW 56 proved the letter of his office addressed to S.P., C.B.I, Ranchi marked Exhibit 50/41. He also stated that Work Order was given to M/s Mahamaya Construction and M/s Maa Gauri Construction and the firms deposited Rs.9,50,000/- and Rs.12,00,000/- as security in his office in the form of T.D. Passbook. PW57 deposed that Sanjay Kumar Ray invested total amount of Rs.7,80,000/- in cash. He further stated that the appellant Sanjay Kumar Ray approached him for depositing Rs. 8,00,000/- with post office and he also stated about the investments made by the appellant Sanjay Kumar Ray. PW58 who is a postal agent has stated a total Rs.19,00,600/- was deposited in term deposit by the appellant Sushila Devi and Hari Narayan Ray. He also deposed that on receiving call of the appellant Hari Narayan Ray he went to the residence of Minister where he met his madam (meaning thereby the appellant Sushila Devi) and madam told him that some investment 28 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 has to be made. PW 59 has stated that as a member of Legislative Assembly total salary and allowances amounting to Rs.1,22,761/- was payable to Shri Hari Narayan Ray. He has proved the salary statement which was as exhibit 29/4.
11. P.W.60- Suresh Kumar Sinha is the valuer who has valued the double storied house of the appellant- Sanjay Kumar Ray situated at plot No.1321 at Deoghar. In his report only the valuation of the construction has been included but the cost of the land has not been included. The property was valued at Rs.33,09,000/- . The valuation report proved by the P.W.60 has been marked as Ext.57. P.W.60 proved the valuation report of the dairy farm in the name of the accused persons for the valuation of Rs.27,03,900/- and the valuation report of the dairy farm has been marked Ext.58. He valued the property in the name of the appellant- Hari Narayan Ray, Tuleshwar Ray and Sanjay Kumar as per the CPWD norms regarding the construction of pond at Rs.21,03,000/-. The valuation report in this respect has been marked Ext.59. The newly constructed house in front of ancestral house of appellants- Hari Narayan Ray and Sanjay Kumar Ray was valued at Rs.8,52,500/-. The relevant valuation report has been marked as Ext.60. These valuation reports were prepared under CPWD guidelines in presence of the appellant- Sanjay Kumar Ray. Prior to the said period, the appellants did not raise any objection about the guidelines of CPWD or the CPWD regarding guidelines. P.W.60 has also stated the rates of local area at the time of valuation of the property.
12. PW61 proved the letter marked exhibit 6/6 which he sent to SP, CBI, Ranchi along with IT return of Sanjay Kumar Ray (individual) and Sanjay Kumr Ray (HUF) for F/Y 2006-07 and 2007-08. PW63 stated that Sanjay Kumar Ray has invested Rs.8,70,000/- in Term Deposit. PW67 stated that in the year 2008 Rohit Singh Rathore transferred HIG Plot No.35 to Sushila Devi. The market value of the said plot was Rs.12 lakh. He proved Ext.50/26 along with enclosures which were certified by him. PW68 deposed that on 07.01.2009 the work order was given to M/s. Mahamaya Construction and Rs.11,20,000/- was deposited in the form of Term Deposit pass book as security. On 14.05.2009 work order was issued 29 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 to M/s. Mahamaya Construction and Rs.9,65,000/- was deposited in Term Deposit form pass book and NSC as security. On 13.04.2009 work order was issued to M/s. Maa Gauri Construction and Rs.21,01,000/- was deposited in form of NSC and Bank Guarantee. He has proved the letter dated 15.04.2011 issued by Executive Engineer exhibited as 6/7 and also proved the seizure memo dated 18.04.2011 as exhibit 1/20. PW 69 being a Judicial Magistrate recorded the statement of Kumar Narendra Prasad Singh and Birendra Kumar Tripathy under Section 164 of Cr.P.C. and proved the same which were marked as exhibit 54 and 54/1.PW70 proved the letter of the Deputy Commissioner Dumka enclosing the affidavits submitted by Hari Narayan Ray in the election of 2005 of Jharkhand Vidhan Sabha and the election of 2009 Jharkhand Vidhan Sabha at the time of nomination. In the affidavit of 2005 filed in Vidhan Sabha election Hari Narayan Ray has declared his assets as cash Rs.40,000/-, Bank Deposit Rs.5,000/-, other financial deposit of Rs.1,25,000/- and jewelries of Rs.50,000/-, agricultural land 5.5 acre.
13. PW74 stated that in the financial year of 2005 and 2006 Hari Narayan Ray declared total income of Rs.5,73,926/- and paid tax of Rs.45,190. In financial year 2006-07 Hari Narayan Ray declared income of Rs.7,13,270/- and paid tax of Rs.90,761/-. In the financial year 2007-08 Hari Narayan Ray declared income of Rs.2,00,568/- and paid tax of Rs.87,109/- Sushila Devi declared total income for financial year 2005-06 of Rs.2,66,400/- and paid tax of Rs.4,876/-. Sushila Devi in the financial year 2006-07 declared total income of Rs.2,79,971/- and paid tax of Rs.9,150/-. Sushila Devi for the financial year 2007-08 declared total income of Rs.5,34,734/- and paid tax of Rs.87,191/-. This part of his testimony was not challenged in his cross examination hence these facts have remained undisputed. PW75 has stated about letters by which returns of Hari Narayan Ray and Sushila Devi was sent to SP, CBI, Ranchi. PW76 has stated about the deposits made by Sanjay Kumar Ray and Sushila Devi with the Post Office.
14. P.W.77 is the CMD of Kashish Developers Limited. The company was doing the work of construction of house and apartments. Hari Narayan Ray 30 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 wanted to construct a house therefore, he met P.W.77. By the efforts of P.W.77 Hari Narayan Ray purchased a plot from Rathorejee at Harmu Housing Colony, Ranchi and Hari Narayan Ray made the payment to P.W.77 for the aforesaid plot. Hari Narayan Ray gave him cheque of Rs.13,02,000/-. Out of which he paid Rs.10 lakh to Shri Rathore by way of demand drafts of Rs.40,000/- each and remaining Rs.3 lakh for his profit. The draft dated 27.02.2008 for Rs.12,98,966/- in the name of Rohit Singh Rathore was cancelled because Rohit Singh Rathore wanted draft of Rs.40,000/- each in total Rs.10 lakhs to be given to him. He identified the documents which were marked as X/8. Hari Narayan Ray has paid Rs.5,34,680/- to Housing Board which was the dividend/profit of the Housing Board. Hari Narayan Ray gave Rs.3,95,872/- to P.W.77 in cash. P.W.77 prepared draft and deposited it with the Housing Board, which was arrear of Housing Board due on Rohit Singh Rathore. Without making payment of arrear the aforesaid plot could not have been transferred in favour of Sushila Devi. Hari Narayan Ray gave him Rs.4,50,000/- in cash and he made the payment to the two brokers in cash who had helped to identify the aforesaid plot. P.W.77 identified the file of house of Sushila Devi in H-35, Harmu Housing Colony, Ranchi which was maintained in ordinary course of business in his company's office. The file containing 382 pages which is related to expenditure, vouchers for construction of building was marked Exhibit 62. He has also proved the agreement entered into between Rohit Singh Rathore and him which was marked Ext.63. The photocopy of the agreement for sale/transfer of lease between him and Sushila Devi dated 05.04.2007 was marked as X/9 for identification. He has also proved the agreement for construction which took place between him and Sushila Devi and power of attorney which was given by Rohit Singh Rathore to Sushila Devi. He has also proved the agreement for construction which was executed by him in favour of Ambay Developers. He has stated that letter dated 31.07.2010 was issued by Sushila Devi to his company through which cheque of Rs.5 lakh and draft of Rs.4,98,899/- out of Rs.17,64,636/- due amount was sent requesting therein to start the construction of the house. He has also proved the seizure memo dated 16.08.2011. He further stated that the construction of the aforesaid house was 31 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 done in the year 2008. For the construction of the aforesaid house total Rs.42 lakh was spent and Rs.4 lakh was his profit which is also included in this amount. Hari Narayan Ray provided iron to him through truck, which was valued Rs.4/5 lakh approximately. In the aforesaid house the work of plaster and flooring was not done by him. During his cross-examination he has stated that CBI has recorded his statement during the investigation. He cannot say that whose writing were appearing on the documents marked Ext.62. He further stated that Hari Narayan Ray was to purchase a plot for construction of a house. Accordingly, they have searched a plot within two or four days and Ext.63 is MOU which was prepared by him with Rohit Singh Rathore for the purpose of purchasing the plot. After this MOU he has done agreement for sale with Sushila Devi and a cheque of Rs.13,02,000/- was issued in the name of Sunil Choudhary from the account of Hari Narayan Ray. This cheques is shown by him in personal account but Rs.3,95,872/- was given in cash by Hari Narayan Ray to him which is not shown by him in books of account. By this money he prepared a draft and submitted it to the Housing Board. Draft was made in cash. Whatever amount he received from Hari Narayan Ray in cash, he has no documentary evidence for the same. There was an agreement between his company and Sushila Devi for making her house. At para-74 he deposed that to construct this building Kashish Developers spent Rs.38-38 ½ lakh and Sushila Devi has given about Rs.26 lakh to him for purchasing a plot. Out of Rs.38 lakh Sushila Devi paid him Rs.34 lakh and iron material of Rs.4-5 lakh was provided by Hari Narayan Ray. At para-78 he has stated that whatever documents were prepared for purchase of plot and construction of house were prepared with Sushila Devi and Sushila Devi is the owner of the aforesaid plot and house.
15. PW79 has deposed about the tripartite lease deed executed between Housing Board, Sushila Devi and Rohit Singh Rathore. PW 80 deposed that Hari Narayan Ray had taken two policies through him. One was in the name of Hari Narayan Ray and another was in the name of his wife Sushila Devi. In both the policies he had deposited Rs.6 lakhs within three years. He gave Rs.3.5 lakh, 2 lakh and 3 lakh through three cheques to Hari Narayan Ray from his account at separate occasions.
32Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017
16. PW 80 by seeing exhibit 20/5 stated that through the same he gave Rs.2 lakh in the account of Sushila Devi. By seeing the exhibit 8/20 he stated that the same is the statement of account of his overdraft account No.276 in which Rs.2 lakh cash has been shown deposited on 23.02.2008 and Rs.2 lakh was debited in favour of Sushila Devi on 26.02.2008. By seeing the earlier exhibit 8/13 he stated that the same is the statement of account No.343, in which account Rs.3.5 lakh has been shown credited on 22.04.2006 and Rs.3.5 lakh has been shown debited on 24.04.2006. By seeing exhibit 20/14 he stated that a cheque of Rs.3 lakh was issued in the name of Sushila Devi by his signature. By seeing exhibit 26/11 he stated that through the same Rs.3 lakh was deposited through transfer in the account No.17. By seeing exhibit 8/21 he stated that through the same Rs.3 lakh and Rs.1 lakh has been shown credited on 26.02.2008 and Rs.3 lakh has been shown debited in the name of Sushila Devi on 26.02.2008. Rs.8.5 lakh was given through cheques to Hari Narayan Ray and Sushila Devi by him against this cash was collected by him and his staff on different dates and Sanjay Kumar Ray had given Rs.3 lakh cash in his office. The account of M /s. Mahamaya Construction was opened in HDFC Bank through him which was the partnership firm of Sushila Devi and in this account cheque of Rs.20 lakh was deposited by his staff. Rs.20 lakh was transferred from HDFC account to Bank of India, Pandra Branch in the account of Sushila Devi. From this account FD certificate of Rs.20 lakh was issued in the account of Sushila Devi and against this FD, OD account was opened in the bank and the limit was Rs.19 lakhs approximately. Exhibit 24, 24/1 are two loan account documents which was in the name of Hari Narayan Ray and account numbers were 30007533722 and 30007529159 respectively. Against these two accounts Rs.2.5 lakhs were taken as personal loan and he was the guarantor and his properties of Rs.2-2 lakh were mortgaged as security. When the loan became NPA after six months then he received a notice from the bank and deposited Rs.2,70,539/- against the adjustment of FD vide exhibit 8/14. The FD account which was adjusted by Rs.2,70,539/- was returned to him in cash by Hari Narayan Ray.In his cross- examination he stated that in 2007 he gave Rs.2 lakh loan to Sushila Devi from Bank of India, OD account. The loan given was not done in writing. He 33 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 has further stated that it is true that he gave Rs.8.50 lakh to accused through cheque, the said amount was returned within six to one year in cash.
17. PW81 was the investigating Officer of the case when the same was with vigilance bureau. He submitted Charge-sheet against Hari Narayan Ray and Anosh Ekka for amassing assets disproportionate to their known source of income and further investigation was continuing. In his cross-examination he has stated that by the order of the court Vigilance Case No. 26/08 was registered by the CBI as R.C. 4(A)/2010-AHDR and after the registration of the case by the CBI he closed his investigation and investigation for the accused persons was completed. PW82 stated that on his complaint Vigilance Court ordered Vigilance Bureau to register the F.I.R. He has proved his complaint which was marked as exhibit 70. PW83, 84 and 87 are the part Investigating Officers of the CBI. They have recorded the statement of some of the witnesses of the case and issued letter to the relevant authorities seeking information regarding the facts related to this case. PW88 is the main Investigating Officer of the case. He stated that during investigation he found that accused Hari Narayan Ray acquired properties of Rs.2,34,92,372/- at the end of check period. During the check period total income in the name of Hari Narayan Ray, Sushila Devi and Sanjay Kumar Ray was found to Rs.1,55,27,619/-. Sushila Devi claimed before the Enforcement Directorate that she took loans from B.K. Tripathi, K.N.P. Singh, Nandlal Ray and Deo Narayan Ray and Lata Ray. But during investigation it was found that whenever B.K. Tripathi and K.N.P Singh issued cheque in respect of the said loans, just before it the same amount of cash was deposited in their accounts. Nandlal Ray, Deo Narayan Ray and Lata Ray are relatives of Hari Narayan Ray. Nandlal and Deo Narayan Ray were in service and their income is not such as they can give loan of such huge amount and for this reason it was not included in Hari Narayan Ray's income. Sushila Devi and Sanjay Kumar Ray were also involved in accumulation of disproportionate assets and to justify such income they all opened a firm M/s Baba Basuki Dairy Farm and in the year 2008-09 showed profit of Rs.18,53,610/- but failed to show any documents regarding it. In the same year 2008-09 Hari Narayan Ray has shown Rs.14,29,741/- as profit in his income tax returns from the same 34 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 business. Hari Narayan Ray could not show any documents regarding it nor could he explain from where he received this money. The total income fixed was Rs.1,55,27,619/-. During the check period total amount of Rs.68,30,060/- was spent in different heads. In this way during the check period disproportionate assets against the income was found of Rs.1,46,25,354/- and charge-sheet was submitted against Hari Narayan Ray, Sushila Devi, Sanjay Kumar Ray under Section 109 of the Indian Penal Code and 13 (2) read with 13 (1) (e) of Prevention of Corruption Act, 1988. In his cross-examination he has stated that the offences of Hari Narayan Ray and Anosh Ekka are different.
18. PW 86 stated that vide sale deed No.3621 Smt. Neelam has sold the property mentioned in the sale deed to Raghunath Ray for Rs.8 lakh. The property mentioned in the gift deed No.1286 was donated by Raghunath Ray to Sanjay Kumar Ray. PW 90 proved the two affidavits filed by Hari Narayan Ray along with this nomination papers for election as MLA in the year 2005 and 2009, which were marked exhibit 78 and 78/1 respectively.
19. After closure of the evidence of prosecution the statement of the appellant- convicts were recorded under section 313 of the Cr.P.C., Hari Narayan Ray stated that he does not remember about the property mentioned in the said affidavits and the valuation of the property is exaggerated. Regarding acquisition of the assets and his expenditure during the check period he either admitted the acquisition of the property or the expenditure made by him or stated that he does not remember. Regarding the income shown by CBI he answered that his agricultural income has been shown on the lower side. The appellant Sushila Devi in answer to the questions put to her under section 313 of the Cr.P.C. stated that she purchased the house at Harmu Housing Colony, by her earnings of selling milk and taking loan but she does not know the price of the said house. In response to the question no. 16 she replied that she does not remember whether she repaid her personal loan from the ill-gotten money of Hari Narayan Ray. She denied most of the rest of the material questions. The appellant Sanjay Ray in answer to the questions put to him under section 313 of the Cr.P.C. stated that he purchased the lands at Deoghar out of his own 35 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 income. He admitted all the incomes shown to be of his by the prosecution and denied that his expenditures were from the ill-gotten money of Hari Narayan Ray.
20. Out of the six witnesses examined by the defence in this case DW1 and DW2 have stated that Hari Narayan Ray has nothing to do with the pond in his village and his cousin brother Tuleswar Ray is looking after the same. In his cross examination DW1 has stated that he does not know whether Sanjay Ray took loan for pisciculture. In paragraph-8 of his cross-examination DW2 has stated that Hari Narayan Ray and Sanjay Ray have share in the pond. DW3 has stated that Sanjay Ray has his own business including pisciculture and he has no concern with Hari Narayan Ray and there has been partition in the family.DW4 and DW5 have stated about the partition between Hari Narayan ray and his brother. DW6 is the brother of Hari Narayan Ray . He stated that his wife gave Rs. 5,00,000/-in 2008 to Sushila Devi which she returned in 2012. In his cross examination he has stated that he was earning Rs. 8,500/- from his job. He does not remember the consideration amount of the land purchased by him at Deoghar.
21. The learned trial Court considered that P.W.60- Suresh Kumar Sinha is the valuer who has valued the double storied house of the appellant- Sanjay Kumar Ray situated at plot No.1321 at Deoghar. In his report only the valuation of the construction has been included but the cost of the land has not been included. P.W.60 proved the valuation report of the dairy farm in the name of the accused persons for the valuation of Rs.27,03,900/-. He valued the property in the name of the appellant- Hari Narayan Ray, Tuleshwar Ray and Sanjay Kumar as per the CPWD norms regarding the construction of pond at Rs.21,03,000/-. The newly constructed house in front of ancestral house of appellants- Hari Narayan Ray and Sanjay Kumar Ray was valued at Rs.8,52,500/-. These valuation reports were prepared under CPWD guidelines in presence of the appellant- Sanjay Kumar Ray. Prior to the said period, the appellants did not raise any objection about the guidelines of CPWD or the CPWD regarding guidelines. P.W.60 has also stated the rates of local area at the time of valuation of the property. The learned trial Court also considered that P.W.77- Sunil Choudhary has 36 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 supported the deposition of P.W.60 to the extent that P.W.77 made an agreement with the appellant- Smt. Sushila Devi for Rs.39 lakhs approximately in which the cost of the land was not included. The appellant- Hari Narayan Ray provided some materials worth Rs.4 to 5 lakhs which is not included in the agreement. However, the valuation is done as per the CPWD norms but this fact is not supported by the contractor/ developer who has constructed the house of the appellants- Hari Narayan Ray and Smt. Sushila Devi. The learned trial Court also considered that P.W.10- Tarun Kumar who was a Revenue Karmchari in the Circle Office, Sarwan has submitted his report with regard to jointness and income from agriculture. The report of P.W.10 has been marked as Ext.19. In his letter he has written about Jamabandi no.104 situated at Mouza Sonaraythari and Mouza Dogia and ancestral land is in jointness and 14 acre land is fit to be cultivated and at Khata No.139/1 is recorded in the name of Nil Kath Ray the father of the appellant- Hari Narayan Ray and the pond is on ancestral land. The learned trial Court also considered that the undisputed evidence in the record which has come from the witnesses examined by the prosecution is that the appellant- Smt. Sushila Devi is the wife of the appellant- Hari Narayan Ray and Sanjay Kumar Ray is the brother of the appellant- Hari Narayan Ray and the appellant- Smt. Sushila Devi was engaged in the business of fish, milk and construction of road through the partnership firm namely M/s. Maa Mahamaya Construction. The appellant- Smt. Sushila Devi never filed any income tax returns or paid any income tax during the check period. She furnished her income tax returns for the financial year 2004-05 to 2007-08 only after her husband the appellant-Hari Narayan Ray became the Minister in the Government of Jharkhand. The appellant No.3 namely Sanjay Kumar Ray was engaged in dairy farm and he has formed a partnership firm namely M/s Maa Gauri Construction for doing the contract work. Apart from the appellant- Sanjay Kumar Ray, Sukhev Pandit, Dilip Kumar, Ashok Kumar and Ratnesh Kumar were the partners in M/s. Maa Gauri Construction. M/s Maa Gauri Constuction was registered with the Rural Development Department, Jharkhand Government in the year 2008 during the check period. The appellant- Sanjay Kumar Ray also filed income tax returns after 37 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 the last date of filing and only after the appellant- Hari Narayan Ray became a Minister in the Government of Jharkhand. Prior to the entry of the appellant- Hari Narayan Ray in politics, his financial condition was not good as is evident from the details of the property furnished by the appellant- Hari Narayan Ray before the Returning Officer which has been marked Ext.78 and 78/1. But during the check period, assets disproportionate to his means were found in the name of the appellant- Smt. Sushila Devi and the appellant- Sanjay Kumar Ray. The evidence put forth by the prosecution through the witnesses examined by it established that the appellant- Hari Narayan Ray was elected from Jarmundi Vidhan Sabha Constituency and took oath as M.L.A., Jharkhand Vidhan Sabha on 10.03.2005 and he continued as such till 31.10.2009. The appellant- Hari Narayan Ray was again elected from the same constituency and took oath as M.L.A., Jharkhand Vidhan Sabha on 08.01.2010. The appellant- Hari Naryan Ray took oath as a Minister of the Government of Jharkhand on 12.03.2005 and continued as such till 19.12.2008. During his tenure as a Minister, the appellant- Hari Narayan Ray held the portfolios of different departments like Rural Engineering Organization (later named as Rural Works Department), Forest and Environment, Urban Development and Tourism. The appellant- Hari Narayan Ray married the appellant- Sushila Devi wherein the appellant- Hari Narayan Ray thereafter acquired unaccountable assets in the name of the appellant- Smt. Sushila Devi. The learned trial Court observed that from the evidence it is established that the appellant- Hari Narayan Ray has three brothers namely Sanjay Kumar Ray, Nandlal Ray and Dev Narayan Ray out of which his brothers Dev Narayan Ray and Nandlal Ray are public servants with petty salary and Sanjay Kumar Ray is a private person. The appellant- Hari Narayan Ray acquired unaccountable assets in the name of the appellant- Sanjay Kumar Ray. The appellant- Hari Narayan Ray has been shown to have been running a Dairy Farm in the name and style of M/s. Baba Basuki Dairy in partnership with Smt. Sushila Devi. The appellant- Hari Narayan Ray has acquired most of his assets either in his own name or in the name of the appellants- Smt. Sushila Devi and Sanjay Kumar Ray. From the Ext.78 and 78/1 dated 04.02.2005 submitted by the appellant- Hari Narayan 38 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Ray submitted before the Returning Officer, his assets at the beginning of the check period have been ascertained on the basis of these exhibits worth Rs.1,70,000/- which is reflected in Statement-A in the charge-sheet. The evidence in the record goes to show that the appellant- Hari Narayan Ray has acquired assets worth Rs.1,55,27,619/- during the check period in his own name, in the name of his appellant wife- Smt. Sushila Devi and his appellant brother Sanjay Kumar Ray. Their income declared in the Income Tax Returns does not justify their assets. The learned trial Court further considered that the evidence as disclosed above also established that a fixed deposit certificate for Rs.20 lakh was issued in the name of M/s Mahamaya Construction. The DBD certificate was purchased by the appellant- Smt. Sushila Devi from the money borrowed by her in form of cheque issued in her own name by M/s Khalari Cement. This borrowed amount of Rs.20 lakh was repaid before 31.03.2009 by the appellant- Smt. Sushila Devi. However, B.K. Tripathi (PW80) and K.N.P. Singh(PW 44) have made it clear in their statements that the appellant-Hari Narayan Ray had given them cash and taken cheques from them of the equivalent amount and asked them to treat these transactions as loan and Nandlal Ray and Dev Narayan Ray are public servants with petty salary and they are working as Para-teacher and Panchayat Sewak on monthly salary of Rs.4,500/- and Rs.7,500/- respectively. The evidence in the record also establishes that Dev Narayan Ray was also found to have purchased land in his name worth Rs.90,000/- and Rs.1,87,500/- in Deoghar in 2006. As per the report of the Circle Officer, Sarwan, the brothers of the appellant- Hari Narayan Ray had their share of agriculture land in Sonaraythari was not more than an annual income of Rs.1,11,332/-. The income tax returns for the financial year 2006-07 were filed belatedly in 2009. So, the learned trial Court observed that the natural corollary from these facts is that the claim of the appellant regarding the loans is false.
22. The learned trial Court also considered that the evidence in the record further establishes that the appellant- Smt. Sushila Devi is shown to have invested Rs.42,15,200/- in the year 2008 in Post Office which were invested in M/s Mahamaya Construction and deposited as security on 39 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 behalf of M/s Mahamaya Construction. These investments were made in cash. The evidence in the record also establishes that the appellants- Smt. Sushila Devi and Sanjay Kumar Ray have declared income of Rs.18,53,610/- in the income tax returns of M/s Baba Basuki Dairy during the financial year 2008-09 without maintaining books of account from which it could have been confirmed how this huge amount accrued to the appellants in such a short span of time. The appellant- Hari Narayan Ray has declared an income of Rs.18,12,141/- in his income tax return for the financial year 2008-09 in which an income of Rs.14,29,741/- has been declared from business. The appellant- Hari Narayan Ray has also not been maintaining any books of accounts for this business. The assets earned and investment made in the name of the appellants- Hari Narayan Ray, Smt. Sushila Devi and Sanjay Kumar Ray is proved by the prosecution witnesses through documentary evidence which is as follows:-
Particular of assets Value Rs. PWs Exhibits In the name of Hari Narayan Rai Valuation of Newly 852500 PW-60 Sri Exbt.60 constructed house in Suresh Valuation front of ancestral house Kumar report at Sonaraithari, Sinha Exbt.60/1- forwarding Deoghar letter dated 06.07.2011.
NP bore 306 rifle 16875 PW-1 Dr. Exhibit-1-
bearing No. 1988 make Shafi Ahmed Cash
Winchester along with Memo.
30 Pcs of cartridges
purchased from Bihar
Gun House
NP bore pistol (.32) 16875 PW-1 Dr. Exhibit-
bearing No.38227 Shafi Ahmed 1/1- Cash
Memo.
40
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
make Colt along with Exhibit-1/2,
Seizure Memo
50 Pcs of cartridges
purchased from Bihar
Gun House
Scorpio SLX CRD 849817 PW-3, Exhibit
Vehicle No. JH 01P 2800 Rajesh Sinha No.3,
purchased from M/s Invoice,
Nexgen Solution Exhibit 4
Technologies (P) Ltd., to 4/1,
Dhurwa, Ranchi Money
Receipt,
Exhibit-5-
computeri
zed
Ledger
A/c.,
Exhibit-6-
letter of
dealer.
16 Shares of Reliance 6880 PW-23- Exhibit 36-
Power Manoj Scanned
Kumar applicatio
n form to
36/1-
refund
order,
36/2-
Demat
Statement
of A/c.
36/3-
Demat
Statement
41
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
of A/c.
(Sushila
Devi)
36/4 &
36/5-
letter
dated
01.02.2011
Balance in SB A/c 8821 PW-27- Exhibit-
No.75900017498 in Shradhanan 7/8
Syndicate Bank, d Soren Account
Tilakpur Branch, Opening
Deoghar form
Exhibit
8/9 -
Statement
of
Account
and
Exhibit
No.1/8
Seizure
memo
Balance in SB A/c 59680 PW-22- Exhibit-
No.10923784185 in SBI, Akhtar 7/7-
Doranda, Ranchi Alam Account
PW-36- Roy opening
Dipendra form,
Kr. Yadav Exhibit
8/16-
Statement
of
Account
42
Cr.App(SJ)100 of 2017
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With
Cr.App(SJ)187 of 2017
Balance in A/c No. 42167 PW-6, Exhibit-
3251 in Vananchal Shashi 7/2-
Gramin Bank, Bhushan Account
Sonaraithari. Dey Opening
PW-37- Form,
Priyaranjan 8/3-
Kumar Statement
PW-48- Sita of A/c.
Ram Hazra
In the name of Sushila
Devi
Valuation of House at 5700000 PW-60- Exbt.61-
H-35, Harmu Housing Suresh Valuation
Colony, Ranchi Kumar report
Sinha Exbt.61/1-
PW-77 Sunil forwardin
Choudhary g letter
dt.4.7.2011
Investment in time 200000 PW-28- Jai Exhibit
deposit A/c Prakash 42/9 to
No.150101875 in HPO Ohdar 42/13-
Doranda PW-54 A/c.
Investment in time 180000 Arbind opening
deposit A/c Kumar (in form
No.150101875 in HPO r/o amount Exhibit
Doranda 4,14,000/-, 43/9 to
Investment in time 414000 3,80,000/- & 43/13-
deposit A/c 7,20,000/- Pay in slip
No.150101875 in HPO Exhibit
Doranda 44/9 to
Investment in time 380000 44/13-
deposit A/c passbook
No.150101875 in HPO Exbt.41/1
43
Cr.App(SJ)100 of 2017
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With
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Doranda 1 to
Investment in time 720000 41/13-
deposit A/c Pay in
No.150101875 in HPO slips
Doranda Exhibit
1/9-
seizure
memo
Exhibit
36/6-
forwardin
g letter
Investment in A/c 248600 PW-29 Prem Exhibit-
No.150101749 in HPO, Nath 42/14 to
Doranda 42/18-
Investment in A/c 322600 PW No.58- A/c.
No.150101749 in HPO, Rama opening
Doranda Shankar form
Investment in A/c 250000 Prasad Exhibit-
No.150101749 in HPO, 42/14 to
Doranda 42/18-
Investment in A/c 250000 Pay in slip
No.150101749 in HPO, Exhibit-
Doranda 44/14 to
Investment in A/c 450000 44/18-
No.150101749 in HPO, pass book
Doranda Exhibit
1/10-
Seizure
memo
Exhibit
36/7-
forwardin
44
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
g letter.
Investment in time 300000 PW-30- Exhibit
deposit a/c No.420227 Rama Kant 42/19 to
in Court Post Office, Dubey 42/21-
Deoghar A/c.
opening
form
Exhibit
43/19 to
43/21-Pay
in slip
Exhibit
44/19 to
44/21-Pay
pass book
Exhibit 46
to 46/2-
ledger
sheet
Exhibit -
1/11
seisure
memo
Exhibit
36/8-
forwardin
g letter
Investment in time 250000
deposit a/c No.420228
in Court Post Office,
Deoghar
Investment in time 250000
deposit a/c No.420229
45
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
in Court Post Office,
Deoghar
Balance in A/c No.14 in 15000 PW-6 Shasi Exhibit
Vananchal K]shetriya Bhushan 7/3- A/c.
Gramin Bank, Dey Opening
Sonaraithari, Deoghar Form,
8/4-
Statement
of A/c.
Balance in SB A/c 538 PW-7 Exhibit-
No.3746 (new Rangadhar 7/4- A/c.
75922200021206) in Patra opening
Syndicate Bank, PW-27- form
Tilakpur Branch, Shradhanan Exhibit-
Deoghar d Soren 8/7
Statement
of a/c.
Fixed Deposit A/c 2000000 PW- 8 Rajiv Exhibit
No.493945110000655 in Ranjan 9/1- DBD
Bank of India, Pandra Tiwary Certificate
Branch in the name of PW-39- Exhibit 16-
M/s Mahamay Amrendra Pay in slip
Construction, money Kumar Ext.17-
invested by Smt. Deepak Debit
Sushila Devi PW-41- voucher
Vivekanand for DBD
Bhagat
In the name of Hari
Narayan Rai and
Sushila Devi
Balance in Joint A/c 10534 PW-9 Exhibit
No.493910110000567 in Xaviour 7/5-
Bank of India, Pandra Kujur applicatio
46
Cr.App(SJ)100 of 2017
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Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
Branch, Ranchi n form
Exhibit-
18-
Specimen
Signature
Card
Exhibit
8/11 and
8/12
Statement
of A/c.
Ext. 9- FD-
Rs.1,00,00
0/-
Exhibit-
16/1- Pay-
in-slip
Balance of SB A/c 9447 PW-4 Anil Exhibit-7,
No.491010100008252 in Kumar Account
Bank of India, Shyamali Opening
Br., Ranchi Form,
Exhibit-8
and 8/1,
Statement
of A/c.
Exhibit-
1/3 and
1/4,
Seizure
Memo
In the name of Sanjay
Kumar Ray
Valuation of house of 3309000 PW-60 Shri Exbt.57-
47
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With
Cr.App(SJ)187 of 2017
Sanjay Kumar Ray, at Suresh valuation
Bompass Town, Kumar report
Deoghar Sinha 57/1
forwardin
g letter
dated
08.08.2011
True copy of Sale deed 174354 PW-32- Exhibit 48-
No.1804 dt. 2.6.06 Sudhir certified
regarding purchase of Kumar sale deed
2028 sq.ft. land at Sinha and 48/1-
Shyamganj, Castairs PW-53- certified
Town, Deoghar Bhogendra sale deed.
(includes stamp and Thakur
registration charges)
True copy of Sale deed 196934
No.2380 dt. 14.7.06
regarding purchase of
1707 sq.ft. land at
Shyamganj, Castairs
Town, Deoghar
(includes stamp and
registration charges)
Investment in Time 100000 PW-25- Exhibit 42
Deposit A/c Ranjan to 42/8-
No.151400135 in HEC Kumar A/c
Expert Hostel PO, PW-57 opening
Ranchi Mahendra form
Kumar Exhibit 43
Sinha to 43/8-
pay in slip
Ext.44 to
44/8 pass
48
Cr.App(SJ)100 of 2017
With
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With
Cr.App(SJ)187 of 2017
book
Investment in Time 100000
Deposit A/c
No.151400136 in HEC
Expert Hostel PO,
Ranchi
Investment in Time 100000
Deposit A/c
No.151400137 in HEC
Expert Hostel PO,
Ranchi
Investment in Time 100000
Deposit A/c
No.151400138 in HEC
Expert Hostel PO,
Ranchi
Investment in Time 100000
Deposit A/c
No.151400139 in HEC
Expert Hostel PO,
Ranchi
Investment in Time 100000
Deposit A/c
No.151400140 in HEC
Expert Hostel PO,
Ranchi
Investment in Time 90000
Deposit A/c
No.151400141 in HEC
Expert Hostel PO,
Ranchi
Investment in Time 80000
Deposit A/c
49
Cr.App(SJ)100 of 2017
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With
Cr.App(SJ)187 of 2017
No.151400142 in HEC
Expert Hostel PO,
Ranchi
Investment in Time 100000
Deposit A/c
No.151400143 in HEC
Expert Hostel PO,
Ranchi
Investment in Time 3,30,000/- PW-50 Sumit Ext.42/25-
Deposit A/c No.420223 Kr. Ray A/c.
in Deoghar Court PO, opening
Ranchi form
Ext.
43/22-
Pay in slip
Ext.
44/22-
Passbook
In the name of Sushila
Devi and Sanjay Kumar
Rai
Balance in SB A/c 850 PW-5 Exhibit
No.8174 in Vananchal Amarnath 7/1- A/c.
Gramin Bank, Das Opening
Sonaraithari Branch, Form.
Deoghar. Ext.8/1-
Statement
of A/c.
In the name of Hari
Narayan Ray, Sushila
Devi and Sanjay Kumar
Rai
Valuation Dairy Farm 2703900 PW-60- Exbit.58-
50
Cr.App(SJ)100 of 2017
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Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
at Sonaraithari, Suresh valuation
Deoghar Kumar report
Sinha Exbt.58/1-
forwardin
g letter
dt.05.08.20
11
In the name of Hari
Narayan Ray, Sanjay
Kumar Rai and
Tuleshwar Ray
Valuation of 2103000 PW-60- Exbit.59-
construction made at Suresh valuation
Fish Pond at Kumar report,
Sonaraithari, Deoghar Sinha 59/1-
forwardin
g letter.
Total 2,34,92,372/
-
STATEMENT C (INCOME ACCRUED DURING THE CHECK PERIOD) Particulars of Value Rs.
income
In the name of
Harinarayan Ray
Gross salary as per 362308 PW-15, Exhibit-29
salary statement 523532 Ashok and 29/1 to
423500 Kumar Jha 29/3-Salary
235000 Statement
Exhibit 6/4-
forwarding
letter
Income from 445328 PW-10- Exhibit- 19-
51
Cr.App(SJ)100 of 2017
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With
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agriculture as per Tarun Report &
report of the Circle Kumar Exhibit-
Officer PW-11- 19/1-
Ashok forwarding
Kumar letter.
Pandit
PW-51-
Parmeshwar
Munda
Other income as 14968 PW-24- Ext.37- File
declared in Income Sanjay of Hari
Tax Returns Kumar Narayan Roy
Ext.37/1- IT
return For
the F/Y
2005-06
Ext.38- file
return for the
F/Y- 2006-07
Ext.38/1- IT
return 2006-
07
Ext.39- IT file
F/Y 2007-08
39/1 IT
return 2007-
08
Ext.40 IT
return F/Y
08-09
52
Cr.App(SJ)100 of 2017
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With
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Motor Car Advance 500000 PW-15 Exhibit-29-
received from Ashok Salary
Secretariat Treasury, Kumar Jha statement
Project Bhawan,
Ranch
Loan from Farm 300000 PW-7 Exhibit-12-
House Loan A/c Rangadhar Loan
No.20050031 (new Patra application
75927220000189) in PW-27- Exhibit-8/8-
Syndicate Bank, Shradhanand Statement of
Tilakpur Branch, Soren A/c.
Deoghar Exhibit 12/1-
application
form
Loan from Dairy 875000 PW-7 Exhibit- 13-
Loan A/c Rangadhar application
No.2007000 in Patra form
Syndicate Bank, PW-27- Exbt.10/11-
Tilakpur Branch, Shradhanand application
Deoghar Soren form
Exhibit-8/6-
statement of
account
In the name of
Sushila Devi
Gross Total Income 106742 PW-24- Ext.41/3- ITR
declared in IT Sanjay file F/Y 08-
return Kumar 09
Gross Total Income 534734 Ext.41/4- ITR
declared in IT file F/Y 07-
return 08
Gross Total Income 279971 Ext.41/2-ITR
53
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
declared in IT file F/Y
return 2006-07
Gross Total Income 266400 Ext.41/1-IT
declared in IT file F/Y
return 2005-06
Loan from Personal 489990 PW-42- Ext.50/24-
loan account Ashutosh letter dated
No.14035806 in Singh 8.11.2008
HDFC Bank Ltd., along with
Main Road, Br., Statement of
Ranchi A/c.
Amount received as 1900000 PW-45- Ext.50/28-
advance rent from Subeg Singh letter
M/s Innovative dt.18.06.09
Infra Project Pvt. Ext.50/29-
Ltd. And M/s letter
Sondhi Dealers Pvt. dt.15.06.09
Ltd. who entered Ext.50/30
into agreement with letter dated
Sushila Devi for 07.05.09
hiring two floors of Ext.50/31-
her house being letter dated
construct at H-35, 20.04.09
Harmu Housing alongwith
Colony, Ranchi. copy of
agreement.
Ext.50/32-
letter
dt.7.5.09
Ext.50/33-
letter dated
18.06.09
Ext.50/34-
54
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
Certificate
dt.15.06.09
Ext. X/1 to
X/4- Four
Cheques
each
Rs.25000/-
Ext.50/35
letter
dt.7.05.09
Ext.50/36-
letter dated
20.04.09
Drawings made 2300000 PW-39- Exhibit-
from the account of Amrendra 42/23- A/c.
M/s Mahamaya Kumar Opening
Construction Deepak Form of
Mahamaya
Construction,
Exhibit 8/20-
Statement of
Account,
Exhibit
20/12-
Cheque,
Exhibit-26/9
55
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
to 26/10- Pay
in slip,
Exhibit 20/13
to 20/19-
cheque
Exhibit 50-
draft
application,
Exhibit 17/3-
draft
voucher,
Exhibit
36/11- letter
dt.07.12.2010
Exhibit 1/5-
seizure
memo, He
has also
proved
earlier
exhibits 16,
17, 9/1, 8/10,
7/5, 18, 8/1
PW-47 and 8/12.
Sanjay Ext.55/1-
Kumar Jha Audit Report
In the name of Hari
Narayan Rai and
Sushila Dev
Loan from Housing 15,00,000.00 PW-8- Rajiv Exhibit 13/1-
Loan (A/c Ranjan Application
No.493975110000013 Tiwary form for
in Bank of India, PW-41- housing loan.
56
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
Pandra Br., Ranchi Vivekanand Exhibit-14-
for construction of Bhagat Proposal
house at HIG plot form
No.H/35, Harmu Exhibit-15-
Housing Colony, Sanction
Ranchi) Letter
Exhibit 8/9
Statement of
account
Exhibit-16-
Pay in slip
Exhibit-17-
Debit
voucher
Exhibit 9/1-
DBD
Certificate
8/10-
Statement of
DBD
Account
In the name of
Sushila Devi and
Sanjay Kumar Rai
Loan from 1582500 PW-6- Shashi Exhibit 8/5-
Agricultural Term Bhushan Dey statement of
Loan (A/c loan account
No.1/312) taken No.1/312.,
from Vananchal exhibit-10-
Gramin Bank, loan
Sonaraithari, application
Deoghar form.,
Exhibit-11
57
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
and 11/1-
seizure
memo. (only
signature of
PW)
Ext.6- letter
dated
16.06.11
Exhibit-10-
Agricultural
Loan Form
and ATL
Card
Exhibit 8/5-
PW-13- Statement of
KedarNath Loan
Gupta Account
In the name of
Sanjay Kumar Ray
Gross Total Income 125402 PW-21- Exhibit-35/4-
declared in IT Prayag Ram 2005-06,
return Exhibit-35/5-
2006-07,
Exhibit-35/6-
2008-09,
Exhibit-35/7-
2007-08,
Gross Total Income 135148
declared in IT
return
Gross Total Income 332706
declared in IT
58
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
return
Gross Total Income 97490
declared in IT
return
Drawings made 850000 PW-47 Ext.55- Audit
from the account of Sanjay Kr. Report
M/s Maa Gauri Jha
Construction
MTFL Loan from 450000 PW-89- Sri Exhibit-52-
United Bank of Subhash Account
India, RKMV Chandra Opening
Branch, Deoghar Choudhary Application
PW-91- D. K. for vehicle
Srivastava loan
52/1-
Statement of
account. He
has also
proved
exhibit 9/1-
FD, 13/2-
Home Loan,
8/9- Home
Loan
repayment,
51-OD
Account,
51/1-
Statement of
OD Account,
20/2 and
20/3-
cheques.
59
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
In the name of
Sanjay Kumar Rai
HUF
Gross Total Income 108130 PW-21- Exhibit-35-
declared in IT Prayag Ram 2005-06
return Exhibit 35/1-
Gross Total Income 148340 06-07
declared in IT Exhibit 35/2-
return 07-08
Gross Total Income 269230 Exhibit 35/3-
declared in IT 08-09
return
Gross Total Income 362200
declared in IT
return
Total 1,55,27,619/-
STATEMENT D (EXPENDITURE INCURRED DURING THE CHECK PERIOD Particulars of Value expenditure Rs.
In the name of
Harinarayan Ray
Taxes paid as per IT 32109 PW-24 Exhibit 40
return Sanjay for the FY-
Kumar 08-09
Taxes paid as per IT 87109 PW-24 Sanjay Exhibit 39/1 for
Kumar the FY- 07-08
return
Taxes paid as per IT 90761 PW-24 Sanjay Exhibit 38/1 for
Kumar the FY- 06-07
return
Taxes paid as per IT 45190 PW-24 Sanjay Ext.37/1- IT
Kumar return F/Y- 05-06
return
60
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
Repayment of 290000 PW-15 Ext.29/1 to
Motor Car Advance Ashok 29/3-
Kumar Jha Income from
saving.
Repayment of Farm 222476 PW-7 Exhibit-3-
House Loan A/c Rangadhar Loan
No. 20050031 (new Patra application
75927220000189) in PW-27- Exhibit-8/8-
Syndicate Bank, Shradhanand Statement of
Tilakpur Branch, Soren A/c.
Deoghar
Repayment of Dairy 284534 PW-7 Exhibit-12-
Loan A/c Rangadhar application
No.20070007 in Patra form
Syndicate Bank, Exbt.10/11-
Tilakpur Branch, application
Deoghar form
Exhibit-8/6-
Statement of
A/c.
Interest paid into 24648 PW-22- Exhibit-
the Term Loan Akhtar Alam 8/17- Loan
Express Credit PW-36- Roy Account
(Personal) A/c Dependra Exhibit 1/5
No.10924055388 at Kumar to 1/7-
SBI, Doranda Br. Yadav Seizure
Memo
Interest paid into 20539 PW-14- Exhibit -
the Term Loan A/c Ratan 17/1, 17/2-
No. 3000752915-9 in Kumar Debit
SBI, Personal Biswas vouchers
Banking Branch, Raj Exhibit 24-
Hospital Complex, Ledger
61
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
Ranchi. account no.,
722,
Exhibit
24/1-
computer
generated
statement of
loan
Account
159- ledger
sheet
Exhibit 25-
letter,
Exhibit-26-
Credit
voucher,
Exhibit 27-
letter for
transfer of
personal
loan
account,
Exhibit
27/1-
Doranda
Branch SBI
letter,
Exhibit 28-
Transfer
Advice
Ext.6/2 and
6/3-
Forwarding
62
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
letter
8/15-
Statement of
loan a/c.
Ext.8/14-
statement of
A/c.
Ext.9/2 and
9/3-FD
Premium paid to 21035 PW-19- Exhibit 32 &
ICICI Lombard for Vivek Sinha 32/1-
insurance of Scorpio Vehicle
vehicle No. Insurance
JH01P2800 for the premium
period 24.4.07 to and renewal
23.4.08 premium
Exhibit
32/3-
forwarding
letter.
Premium paid for 50000 PW-40- Exhibit 50 to
Bajaj Allianz LIC Sandeep 50/3- Policy
Ltd. Policy Nayar Docket,
No.0038640966 50/4-
(letter dt. 20.9.10 of Statement of
Anup Kumar Account,
Bhuwania, RM, Exhibit
Doranda, Ranchi) 50/5- Policy
Statemnet,
50/6 to
50/9- 3
renewal
receipts.,
63
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
Exhibit
50/10-
Policy
documents,
Exhibit
50/11-
50/13-
renewal
receipts.
Exhibit
50/14-
statement of
account.
Exhibit
50/15-
policy
document,
Exhibit
50/16 to
50/18-
renewal
receipts,
Exhibit
50/19-
renewal
receipt,
50/20-
payment
summary,
50/21 and
22,
Statement of
account and
64
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
letter,
Exhibit
50/23-
policy
detailed
letter.
-do- 50000
Premium paid for 50000
Bajaj Allianz LIC
Ltd. Policy
No.0038813420
(letter dt. 20.9.10 of
Anup Kumar
Bhuwania, RM,
Doranda, Ranchi)
Premium paid for 50000
Bajaj Allianz LIC
Ltd. Policy
No.0038813685
(letter dt. 20.9.10 of
Anup Kumar
Bhuwania, RM,
Doranda, Ranchi)
-do- 50000
Premium paid for 50000
Bajaj Allianz LIC
Ltd. Policy
No.0038814434
(letter dt. 20.9.10 of
Anup Kumar
Bhuwania, RM,
Doranda, Ranchi)
-do- 50000
65
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
Premium paid for 100000 PW-18- Exhibit
HDFC Standard 100000 Gautam Bose 30/8-
Life Policy 100000 Insurance
No.10298777 (letter Policy,
dt. 27.9.10 of Exhibit-
Gautam Bose, 31/1 and
Branch Head, 31/02-
HDFC, Standard Letter
Life Insurance Co.
Ltd.)
-do-
-do-
Premium towards 206457 PW-16 Exhibit-30
LIC Policy Shantanu status report
No.554868506 of Ghosh- Exhibit
LIC Br.III, Hinoo, 30/1-
Ranchi premium
history
report
Premium towards 101755 PW-16 Exhibit-
LIC Policy Shantanu 30/2- status
No.555321567 of Ghosh- report
LIC Br.III, Hinoo, Exhibit
Ranchi 30/3-
premium
history
report
Kitchen expenses 373644 PW-88- Nil
(1/3rd of the net Ashesh
salary income of Sri Kumar
Hari Narayan Rai)
In the name of
Sushila Devi
66
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
Income tax paid as 50000 PW-24 Exhibit 41
per IT return Sanjay and 41/1 for
Kumar the FY-05-06
Income tax paid as 87191 PW-24 Exhibit 42
per IT return Sanjay and 42/1 for
Kumar the FY-06-07
Income tax paid as 4876 PW-24 Exhibit 43
per IT return Sanjay and 43/1 for
Kumar the FY-07-08
Expenditure 2683435 PW-43 Sri JG Ext.50/25-
incurred on Tirkey letter
purchase of land PW-67- Sri dt.22.02.2011
plot at H-35, Harmu Nawal Ext.50/26-
Housing Colony Kishore letter dated
Prasad 4.4.2011
PW-77 Sri alongwith
Sunil annexure
Choudhary Ext.50/27-
letter dated
05.04.2011
Repayment to 58735 PW-42 Ext.8/29-
Personal loan Ashutosh Loan
account Singh Statement of
No.14035806 in Account.
HDFC Bank Ltd.,
Main Road Br.,
Ranchi
Premium paid for 100000 PW-18- Exhibit 30/7
HDFC Standard 100000 Gautam Bose & 30/8-
Life Policy 100000 Insurance
No.10305191 (letter Policy,
dt. 27.9.10 of Exhibit-31/1
Gautam Bose, and 31/02-
67
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
Branch Head, Letter
HDFC, Standard
Life Insurance Co.
Ltd.)
-do-
-do-
Premium paid 201276 PW-16 Exhibit 3-
towards LIC Policy Shantanu /4-
No.554865988 of Ghosh- premium
LIC Br. III, Hinoo, status
Ranchi Exhibit-
30/5- letter
Exhibit
30/6-
seizure
memo
In the name of Hari
Narayan Rai and
Sushila Devi
Repayment made 162964 PW-8- Rajiv Exhibit
towards Housing Ranjan 13/1-
Loan (A/c Tiwary Application
No.493975110000013 PW-41- form for
in Bank of India, Vivekanand housing
Pandra Br., Ranchi Bhagat loan.
for construction of Exhibit-14-
house at HIG plot Proposal
No. H/35, Harmu form
Housing Colony, Exhibit-15-
Ranchi) Sanction
Letter
Exhibit 8/9-
Statement of
68
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
account
Exhibit-16-
Pay in slip
Expenditure on 100000 PW-4 Anil Exhibit-9,
investment in FD Kumar Fixed
A/c Deposit.
No.419045100002027
in Bank of India
Shyamali Branch.
In the name of
Sushila Devi and
Sanjay Kumar Rai
Repayment made to 645210 PW-6- Shashi Exhibit-8/5-
Agricultural Term Bhushan Dey statement of
Loan (A/c loan
No.1/312) taken account,
from Vananchal Exhibit-10-
Gramin Bank, loan
Sonaraithari, application
Deoghar form
In the name of
Sanjay Kumar Ray
Income Tax paid as 56657 PW-21- Exhibit- 35
shown in IT return Prayag Ram to 35/4
Repayment made to 30000 PW-89- Exbt.77 to
United Bank of Subhash 77/8-
India, RKMV Chandra Statement of
Branch, Deoghar Choudhary Account &
MTFL Loan A/c PW-91- DK other
No.1422300001472 Srivastava relevant
documents.
Total 68,30,601
69
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
23. The learned trial Court thus concluded that the evidence in the record also establishes that the properties acquired and invested as per Statement-B in the name of the appellant- Hari Narayan Ray for Rs.18,53,615/- and assets acquired and invested in the name of the appellant- Smt. Sushila Devi for Rs.1,19,30,738/-, assets acquired in the joint name of the appellant- Hari Narayan Ray and Sushila Devi for Rs.19,981/- and assets acquired by the appellant- Sanjay Kumar Ray for Rs.48,80,288/-, assets acquired by the appellants- Smt. Sushila Devi and Sanjay Kumar Ray for Rs.850/-, assets acquired by the appellants- Hari Narayan Ray, Smt. Sushila Devi and Sanjay Kumar Ray for Rs.27,03,900/- and the assets acquired by the appellants- Hari Narayan Ray, Sanjay Kumar Ray and Tuleshwar Ray for Rs.21,03,000/-. Thus, the total amount of the assets acquired during the check period is Rs.2,34,92,372/-. The learned trial Court then observed that from the perusal of Statement- C, it appears that income accrued during the check period is Rs.1,55,27,619 and Statement-D reveals the expenses incurred during the check period of Rs.68,39,601/-. Thus, the assets found disproportionate to the known source of income which the appellants could not satisfactorily account for is Rs.1,46,25,354/- and held that the prosecution has succeeded in establishing its case that the appellant- Hari Narayan Ray is found in possession of assets in his name, in the name of his brother appellant- Sanjay Ray and in the name of his wife Sushila Devi, disproportionate to the known sources of income which he could not satisfactorily account for is as follows:-
Statement A (ASSETS AT THE Rs.1,70,000/- BEGINNNING OF THE CHECK PERIOD) Statement B (ASSETS AT THE Rs.2,34,92,372/- END OF THE CHECK PERIOD) Statement C (INCOME Rs.1,55,27,619/-
ACCRUED DURING THE
CHECK PERIOD)
Statement D (EXPENDITURE Rs.68,30,601/-
70
Cr.App(SJ)100 of 2017
With
Cr.App(SJ)153 of 2017
With
Cr.App(SJ)187 of 2017
INCURRED DURING THE
CHECK PERIOD)
Assets found disproportionate to B-A-C=
the known sources of income Rs.2,34,92,372-1,70,000-
1,55,27,619=77,94,753/-
which the accused cannot
Rs. 77,94,753+6830601=
satisfactorily account for (B-A- Total 1,46,25,354/-
C+D)
Percentage of Disproportionate 94%
Assets over and above income
24. The learned trial Court further held that the appellants - Sushila Devi and Sanjay Ray being the family members of the appellant - Hari Narayan Ray though were found in possession of the said assets disproportionate to the know source of income of all the three appellants could not account for the resources to acquire such assets and thus the appellants - Sushila Devi and Sanjay Ray have abetted the appellant - Hari Narayan Ray in commission of the offence of criminal misconduct to acquire property in their names and the appellants - Sushila Devi and Sanjay Ray have helped the appellant - Hari Narayan Ray to purchase the property in their name to avoid its detection and convicted and sentence the appellants as already indicated above.
25. At the hearing of these appeals Mr. Sanjeev Kumar the learned senior counsel for the appellant confined his arguments to the additional grounds of appeal filed in shape of an affidavit. Mr. Kumar submitted that in this case two charge sheets have been filed the first one was filed by the Vigilance Bureau and the second one was by the Central Bureau of Investigation. It is then submitted that it was incumbent upon the trial Court to join the charge sheets and having not done so the trial is vitiated.
The learned senior counsel relied upon the judgment of the Hon'ble Supreme Court of India in the case of Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, wherein the Hon'ble Supreme Court of India framed the following question for consideration:
Question 2 71 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 "1.2. Whether the Central Bureau of Investigation (for short "CBI") is empowered to conduct "fresh"/"reinvestigation" when the cognizance has already been taken by the court of competent jurisdiction on the basis of a police report under Section 173 of the Code?"
And answered the said question as under in paragraph as under: Answer to Question 2 "54. No investigating agency is empowered to conduct a "fresh", "de novo" or "reinvestigation" in relation to the offence for which it has already filed a report in terms of Section 173(2) of the Code. It is only upon the orders of the higher courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher courts will have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the court of the learned Magistrate."
Mr. Kumar then relied upon the Judgment of the Hon'ble Supreme Court of India in the case of Pradeep Ram v. State of Jharkhand and another, 2019 SCC Online SC 825 wherein the Hon'ble Supreme Court of India framed the following issue in paragraph 7 (ii) and answered it in paragraph- 37 and 47
7. From the submissions of the learned counsel for the parties and the pleadings on the record, following are the issues, which arise for consideration in these appeals:--
(i) .................
(ii) Whether re-registration of F.I.R. No. RC-06/2018/NIA/DLI is a second F.I.R. and is not permissible there being already a FIR No. 02/2016 registered at P.S. Tandwa arising out of same incident?
(iii)................
37. Thus, from the above discussions, it is clear that there cannot be any dispute to the proposition that second FIR with regard to same offences is barred. But whether in the present case, FIR dated 16.02.2018 registered by NIA, can be said to be second FIR. Before answering the above question, we need to look into the scheme of the NIA Act, 2008.
47. We, thus, do not find any lack of jurisdiction in NIA to carry on further investigation and submit a supplementary report. In the counter affidavit, it has been stated by the Union of India that NIA has concluded investigation and already a charge sheet has been submitted on 21.12.2018 vide first supplementary charge sheet. We, thus, do not find any lack of jurisdiction in the NIA to carry on further investigation in the facts of the present case.
Mr. Kumar then relied upon the judgment of the Hon'ble Supreme Court of India in the case of Pooja Pal v. Union of India, (2016) 3 SCC 135 wherein it was observed as under in paragraph-85.
72Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017
85. As succinctly summarised by this Court in Committee for Protection of Democratic Right(2010) 3SCC571, the extraordinary power of the constitutional courts in directing CBI to conduct investigation in a case must be exercised sparingly, cautiously and in exceptional situations, when it is necessary to provide credibility and instil confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. In our comprehension, each of the determinants is consummate and independent by itself to justify the exercise of such power and is not interdependent on each other.
Mr. Kumar also relied upon the judgement of the Hon'ble Supreme Court of India in the case of Vinubhai Haribhai Malaviya and others v. State of Gujarat and another, 2019 SCC Online 1346 paragraph 54 of which reads as under:
"54. We, therefore, set aside the impugned High Court judgment insofar as it states that post-cognizance the Magistrate is denuded of power to order further investigation. However, given that the facts stated in the application for further investigation have no direct bearing on the investigation conducted pursuant to the FIR dated 22.12.2009, we uphold the impugned High Court judgment insofar as it has set aside the judgment of the Second Additional Sessions Judge dated 10.01.2012 which had ordered further investigation, and also the consequential order setting aside the two additional interim reports of the IO Munshi. So far as Criminal Revision Application No. 346 of 2011 is concerned, we set aside the impugned High Court judgment which remanded the matter to the revisional court. Consequently, the judgment of the learned Additional Sessions Judge dated 23.04.2016 upon remand is also set aside, rendering Special Criminal Application No. 3085 of 2016 infructuous."
Mr. Kumar next relied upon the judgment of the Hon'ble Supreme Court of India in the case of Sasi Thomas v. State, (2006) 12 SCC 421, wherein in paragraph -30 the Hon'ble Court inter alia quoted paragraph -11 of the case of Hasanbhai Valibhai Qureshi v. State of Gujarat (2004) 5 SCC 347 which reads as under :
"11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth."
Mr. Kumar also referred to the judgment of the Hon'ble Rajasthan High Court in the case of Kailash Vs. State of Rajasthan in Criminal Misc. Petition No. 2562/2018, passed on 24th October,2018.
73Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017
26. Besides the above ground Mr. Kumar also submitted the following grounds:
(i) That there was no justification for the for the learned trial Court to split the trial of Hari Narayan Ray from the trial of Anosh Ekka as there is no such provision of law and simply because the appellant did not oppose the said splitting of trial that by itself cannot confer any jurisdiction upon the learned trial Court for such splitting.
(ii) As this Court vide its order dated 04.08.2010 in W.P.(PIL) No. 4700/2008 and 2252/2009 did not quash the charge sheet filed by the vigilance bureau hence the charge sheet submitted by the CBI ought to have been treated as a supplementary charge sheet under section 173(8) of the Code of Criminal Procedure and not as the charge sheet submitted in a de-novo investigation.
(iii) The learned trial court ought not have taken cognizance for the second time in the case as it had already taken cognizance of the offence of the FIR of the vigilance bureau. In this respect the learned senior counsel referred to the judgment of Hon'ble Calcutta High Court in the case of CBI vs. Dilip Lahiri and another (2013 CRI.LJ 2807)
(iv) It was then submitted that taking cognizance against the appellant on 16.12.2012 while he was a sitting MLA without any sanction under section 19 of the Prevention of Corruption Act, 1988 from the speaker of the Jharkhand Vidhan Sabha vitiates the entire trial. To buttress his submission that Members of Legislative Assembly are Public Servants in terms of section 2(c) (viii) of the Prevention of Corruption Act, 1988, the learned counsel relied upon the part of judgment of the Hon'ble Supreme Court of India in the case of P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626 delivered by Hon'ble Mr. Justices S.P.Bharucha and S.Rajendra Babu, wherein as a subsidiary question it was decided as under:
"165. We think that the view of the Orissa High Court that a Member of a Legislative Assembly is a public servant is correct.xxxxxxxxxxxxxx"
To show the fairness on his part as an officer of this Court the learned 74 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 senior counsel also relied upon the judgment of the Hon'ble Supreme Court of India in the case of Abhay Singh Chautala v. CBI, (2011) 7 SCC 141 wherein in the facts of that case where the charges of disproportionate assets earned by the accused Member of Legislative Assembly did not pertain to their present tenure as Member of Legislative Assembly the Hon'ble Court observed as under in paragraph- 54 and 56 :
54. The learned Senior Counsel tried to support their argument on the basis of the theory of "legal fiction". We do not see as to how the theory of "legal fiction" can work in this case. It may be that the appellants in this case held more than one offices during the check period which they are alleged to have abused; however, there will be no question of any doubt if on the date when the cognizance is taken, they are not continuing to hold that very office. The relevant time, as held in S.A. Venkataraman v. State, is the date on which the cognizance is taken. If on that date, the appellant is not a public servant, there will be no question of any sanction. If he continues to be a public servant but in a different capacity or holding a different office than the one which is alleged to have been abused, still there will be no question of sanction and in that case, there will also be no question of any doubt arising because the doubt can arise only when the sanction is necessary. In case of the present appellants, there was no question of there being any doubt because basically there was no question of the appellants' getting any protection by a sanction.
56. Thus, we are of the clear view that the High Court was absolutely right in relying on the decision in Parkash Singh Badal v. State of Punjab to hold that the appellants in both the appeals had abused entirely different office or offices than the one which they were holding on the date on which cognizance was taken and, therefore, there was no necessity of sanction under Section 19 of the Act as held in K. Karunakaran v. State of Kerala and the later decision in Parkash Singh Badal v. State of Punjab. The appeals are without any merit and are dismissed." (emphasis supplied) Though Mr. Kumar also relied upon the judgement of the Hon'ble Supreme Court of India in the case of State of West Bengal Vs. Shyamadas Banerjee and Another (2008) 9 SCC 45 but the same is not relevant to the present appeal, as mentioned in the penultimate paragraph of that judgment itself the said case relates to prosecution under the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act,1949 whereas the prosecution in this appeal are under the provisions of the Prevention of Corruption Act, 1988.75
Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Mr. Kumar next relied upon the judgement of the Hon'ble Supreme Court of India in the case of Nanjappa v. State of Karnataka, (2015) 14 SCC 186 which of course unlike this case where no sanction has been obtained, was a case where the sanction for prosecution was allegedly invalid, wherein the Hon'ble Court observed as under in paragraph- 22.
22. The legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption Act is thus much too clear to admit equivocation. The statute forbids taking of cognizance by the court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of clauses (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the court trying the accused so much depends upon the existence of a valid sanction. In case the sanction is found to be invalid the court can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with law. If the trial court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution.
In the case of Habibulla Khan v. State of Orissa, (1995) 2 SCC 437 also relied upon by Mr.Kumar, the Hon'ble Supreme Court of India answered the question" whether the appellants could be prosecuted for the offence which they are alleged to have committed during their tenure as Ministers after they ceased to be the Ministers?" in the affirmative and also held that for such prosecution under the Orissa Special Courts Act,1990 no sanction of prosecution under section 19 of the Prevention of Corruption Act, 1988 is required.
(v) It was next submitted that the appellants Sushila Devi and Sanjay Ray are not public servants and there is no evidence against them to constitute the offence punishable under section 109 of the Indian Penal Code. It is next submitted that there is no charge of conspiracy and only the charge of abetment is there to implicate the appellants Sushila Devi and Sanjay Ray in this case. Mr. Kumar in the matter of applicability of section 109 of the Indian Penal Code, relied upon the judgment of the Hon'ble Supreme Court of India in the case of Somasundaram @ Somu Vs. State represented by the Deputy Commissioner of Police (Criminal Appeal No. 403 of 2010, dated 03.06.2020) wherein in the facts of that case 76 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 which relate to abduction for ransom and murder of an Ex-MLA the Hon'ble Court discussed the principle of law relating to section 109 of the Indian Penal Code as under in paragraph- 43,48 and 53 as under:
43. Thus, abetment of a thing is defined in Section 107 of IPC and the concept of "abettor" is explained in Section 108 of the IPC. Sections 107 and 108 of the IPC must be read together to glean the intention of the Law Giver. So read, abetment can happen in three situations (a) It may happen when a person instigates another person to do the thing which is abetted;
(b) Secondly, abetment takes place if a person engages with one or more other person or persons in any conspiracy for doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing. Finally, there is abetment when a person intentionally aids, by an act or omission, the doing of that act.
48. As far as conspiracy within the meaning of Explanation to Section 109 of the IPC is concerned, it deals with secondly under Section 107 of the IPC which 60 speaks about engaging of a person with one or more other person or persons in any conspiracy for the doing of that thing provided an act or illegal omission takes place in pursuance of the conspiracy.
53. Thus, to sum-up, abetment, as defined is a substantive offence. The punishment for it varies according to different circumstances. If the act which is abetted is done in pursuance to the abetment, the punishment is graver, as can been seen from Section 109 of the IPC, as the punishment is for the offence which is committed based on the abetment. The offence of 64 abetment is punishable even if the act which is abetted is not committed. As noted, Sections 115 and 116 provide for punishment in such cases. There are several other aspects relating to offences including Section 114 of the IPC which provides cumulative punishment for the act abetted and also for the act done.
(vi) Though the learned senior counsel confined his argument to the grounds as mentioned above and did not question the finding of fact by the learned trial court and did not even took this Court through the evidence in the record but it has been mentioned in the appeal memo that the learned trial court could not properly appreciate the evidence in the record in their proper perspective and the evidence in the record was insufficient to establish the charges against the appellants beyond reasonable doubt.
27. It is lastly submitted by Mr. Kumar that the impugned judgment being not sustainable in law be set aside and the appellants be acquitted of the charges by at least giving them the benefit of doubt.
77Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017
28. Ms. Nitu Sinha, the learned counsel for the CBI on the other hand defended the impugned judgment. It is next submitted that the order dated 04.08.2010 in W.P.(PIL) No. 4700/2008 and 2252/2009 has already reached finality as the same has not been challenged by anybody including the appellants hence the same is not open to be questioned in this appeal. It is next submitted that by order dated 04.08.2010, the cognizance had already been taken by the trial court but this Court knowing everything pretty well ordered for fresh investigation of the case. The order of this court in this respect is unambiguous and definite, hence no fault can be found with the trial court for having just acting in terms of the said order passed by this court in W.P.(PIL) No. 4700/2008 and 2252/2009 . It is then submitted by Ms. Sinha that even in paragraph- 43 of Vinay Tyagi v. Irshad Ali,(supra) which reads as under:
43. At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct "further investigation", "fresh" or "de novo" and even "reinvestigation". "Fresh", "de novo" and "reinvestigation" are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.
It has been reiterated that higher judiciary can order for fresh investigation in appropriate cases and this being one such case as has been ordered by this court in W.P.(PIL) No. 4700/2008 and 2252/2009, the appellants cannot get any benefit in this respect.
29. Drawing attention of this the court to section 218 of the code of Criminal Procedure which reads as under:
218. Separate charges for distinct offences.
(1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately.
Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person.
78Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 It is submitted by Ms. Sinha, that the charges of this case are that the appellant Hari Narayan Ray being a Public Servant has in his possession during the check period property disproportionate to his known sources of income and the appellants Sushila Devi and Sanjay Ray abetted him for the said offence, thus Anosh Ekka has got nothing to do so far as this distinct offence is concerned hence in view of the clear mandate of section 218 of the Code of Criminal Procedure, these three appellants are to be tried separately and the learned trial court has just done that in terms of the said order dated 04.08.2010 passed by this court in W.P.(PIL) No. 4700/2008 and 2252/2009.
30. Ms. Sinha drawing the attention of this Court to the judgment of the Hon'ble Supreme Court of India in the case of CBI v. V. Vijay Sai Reddy, (2013) 7 SCC 452 in paragraph-23 and 33 of which interalia part of the facts of that case has been described which reads as under:
"23. As mentioned earlier, five charge-sheets have been filed so far and three more charge-sheets are in the final stages and are yet to be filed. At the time of arguments, the learned Senior Counsel for CBI has brought to our notice that the last of the charge has been filed in the Dalmia Cements Ltd. issue on 8-4-2013 which is on the file of the Special Judge for CBI Cases for taking cognizance. We have already noted the stand of CBI insofar as the respondent herein is concerned, his relationship with the main accused Y.S. Jagan Mohan Reddy (A-1), his interest in M/s Jagathi Publications (P) Ltd., etc. It is also seen and highlighted that the respondent, A-2 was engaged in a financial consultant company, namely, M/s Deloitte Touche Tohmatsu India (P) Ltd. and according to CBI, he directed this Company to fudge and exaggerate fiscal status of M/s Jagathi Publications (P) Ltd. It is their claim that it is A-2 who was instrumental in soliciting the premium at Rs 350 per share of M/s Jagathi Publications (P) Ltd. without any basis for actual share of Rs 10 per share. It is pointed out that on the basis of this false rating of Jagathi Publications (P) Ltd. of which A-2 was the Director, many more companies and individuals were made to invest their money by threat, intimidation, cheating and inducement. It is the specific stand of CBI that these ratings were falsely projected by A-2."
"33. It is true that the Special Judge while granting bail imposed certain conditions and the High Court has also added some more additional conditions, however, taking note of few instances in which how the respondent has acted, it cannot be possible for the investigating agency to 79 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 collect the remaining materials for the remaining three charge-sheets to be filed. In such circumstances, we are satisfied firstly that the Special Court took irrelevant materials into consideration for grant of bail and secondly, the High Court having arrived at a definite conclusion that several findings of the Special Court are unacceptable or irrelevant but ultimately affirmed the very same order of the Special Judge granting bail."
Submitted that though the matter was before the Hon'ble Court for cancellation of bail granted to the accused person of that case but the fact that the Hon'ble Court was very much aware that five charge sheets were filed and three more were in pipe line and cancelled the bail after taking into consideration the fact that it cannot be possible for the investigating agency to collect the remaining materials for the remaining three charge- sheets to be filed, shows that the Hon'ble Court also approved filing of several charge sheets for distinct offences.
31. Ms. Sinha next relied upon the judgment of the Hon'ble Supreme Court of India in the case of State of Jharkhand v. Lalu Prasad Yadav, (2017) 8 SCC 1 paragraph -34 and 37 reads as under:
34. When several offences are alleged to have been committed by several accused persons this Court has laid down that normal rule is of separate trials.
37. It is pertinent to mention here that this Court in this very case has negatived the contention of joint trials and amalgamation of trials in the aforesaid decisions. When parties are different, issue of estoppel would not arise. The substantive offence is that of defalcation. Conspiracy was an allied offence to the substantive offence.
And submitted that the Hon'ble Court has reiterated the settled principle of law that when several offences are alleged to have been committed by several accused persons the normal rule is of separate trials and the trial Court has rightly followed the said principle, thus no wrong has been committed by it.
32. Ms. Sinha on the point of absence of sanction submitted that as in this case the appellant Hari Narayan Ray was not continuing in the same office by misusing of which during the check period he amassed property disproportionate to his known source of income and as on the date of cognizance being taken he was a Member of Legislative Assembly but of his second tenure of the subsequent Vidhan Sabha election whereas his 80 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 amassing property disproportionate to his known source of income was related to his first tenure as Member of Legislative Assembly during which period he held the office of Minister of several departments hence in view of the ratio of the case of Abhay Singh Cautala Vs. CBI(supra) no sanction of prosecution of prosecution is required.
33. Ms. Sinha also relied upon the judgment of the Hon'ble Supreme Court of India in the case of Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 paragraph -20, 21 and 39 of reads as under
20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.
21. In other words, where the act performed under the colour of office is for the benefit of the officer or for his own pleasure Section 19(1) will come in. Therefore, Section 19(1) is time and offence related.
39. So far as the question about the non-application of mind in the sanction or absence of sanction is concerned, this has been answered in the first question i.e. where the public servant has ceased to be a public servant since he has ceased to hold the office where the alleged offence is supposed to have taken place, the other questions really become academic.
And submitted that the Hon'ble Court in that case also held that if the cognizance of the offence is taken after the accused ceases to hold the office in respect of which he is alleged to have committed the offence then no sanction for prosecution under section 19(1) of the Prevention of Corruption Act, 1988 is required. It is then submitted that the said ratio was followed in the case of K.Karunakaran Vs. State of Kerala (2007) 7 SCC 59, the judgment of which case was delivered on the same day as that of Parkash Singh Badal(supra).
34. Ms. Nitu Sinha further submitted that the evidence in the record in no uncertain manner establishes that huge amount of property were acquired in the names of the appellants Sushila Devi and Sanjay Kumar 81 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Ray and their relationship with the co-convict public servant at the relevant time namely Hari Narayan Ray of being his wife and brother is not in dispute. It is then submitted that the evidence in the record establishes that the co-convict public servant at the relevant time namely Hari Narayan Ray ensured acquisition of property in their name with their full knowledge and cooperation and they also enjoyed the property in their name which were beyond their means, hence the evidence in the record are sufficient to establish the charge of abetment against the appellants Sushila Devi and Sanjay Ray. In this context Ms. Sinha relied upon the judgment of the Hon'ble Supreme Court of India in the case of P. Nallammal v. State, (1999) 6 SCC 559, paragraph- 12 and 21 to 23 of which reads as under:
12. It is true that Section 11 deals with a case of abetment of offences defined under Section 8 and Section 9, and it is also true that Section 12 specifically deals with the case of abetment of offences under Sections 7 and
11. But that is no ground to hold that the PC Act does not contemplate abetment of any of the offences specified in Section 13 of the PC Act.
Learned counsel focussed on Section 13(1)(e) to elaborate that by the very nature of that offence it pertains entirely to the public servant concerned as there is no role for the co-accused for discharging the burden of proof.
21. There is no force in the contention that the offences under Section 13(1)(e) cannot be abetted by another person. "Abetment" is defined in Section 107 of the Penal Code as under:
"107. Abetment of a thing.--A person abets the doing of a thing, who-- First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing."
22. For the "First" clause (i.e. instigation) the following Explanation is added to the section:
"Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that thing."
23. For the "Thirdly" clause (i.e. intentionally aids) the following Explanation is added:
82Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 "Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
And submits that the Prevention of Corruption Act, 1988 contemplates abetment of any of the offences specified in Section 13 of the Prevention of Corruption Act, 1988. It is lastly submitted by Ms. Sinha that as the evidence in the record is sufficient to prove each of the charges for which the appellants have been convicted and there is no other infirmity in the impugned judgment, hence these appeals being without any merit be dismissed and the impugned judgment of conviction and order of sentence be upheld.
35. Before adverting to the facts of this case it will be appropriate to have a look to the scheme of the Prevention of Corruption Act, 1988. The Hon'ble Supreme Court of India in the case of State of Karnataka v. J.
Jayalalitha, (2017) 6 SCC 263, has summarized the scheme of the Prevention of Corruption Act, 1988 as under in paragraphs 166 and 167 as under:
166. The scheme of the 1988 Act, thus ensures a stricter legislation to combat and eradicate corruption in public life and takes within its sweep, not only the public servants but also those who abet and conspire with them in the commission of offences, enumerated therein. The avowed objectives of the statute prompted by the compelling exigencies of time and the revealing contemporary realities, thus demand of a befitting curial approach to effectuate the same sans qua the rule of benefit of doubt on intangible and trivial omissions and deficiencies.
167. Xxxxxxxxxxxxxxxxxx Explanation to Section 13(1)(e) makes it limpid that the known sources of income of the public servant, to satisfactorily account the pecuniary resources or the property otherwise alleged to be disproportionate thereto, has to be from a lawful source and further that the receipt thereof had been intimated in accordance with the provisions of any law, rule or orders for the time being applicable to him/her, as the case may be. This prescription indubitably emphasises the lawfulness or legitimacy of the income to enable the public servant to satisfactorily account for the pecuniary resources or property otherwise imputed to be disproportionate thereto. Not only the Act entertains presumption against the public servant, in the eventualities as comprehended in Section 20 of the Act, it is clarified in Section 28 that nothing in the statute would exempt any public servant from any proceeding which might apart from the Act, be instituted against him or 83 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 her. Xxxxxxxxxxxxxx
36. Coming to the submissions made on behalf of the appellants in this appeal, their first contention was that the trial Court having not joined the two charge sheets that the charge sheet filed by the vigilance bureau and the CBI, the trial is vitiated. This court does not find any merit in this limb of argument of the appellants, because it is not disputed that this court vide order dated 04.08.2010 in W.P. (PIL) No.4700 of 2008 and 2252 of 2009 has ordered for reinvestigation of the case in supersession of the earlier investigation done by the vigilance bureau. As has already been mentioned even in the case of Vinay Tyagi(supra), relied upon by the appellants this power vesting with the superior court has been reiterated by the Hon'ble Supreme Court of India in no uncertain manner. It is also not disputed that the offence involved in this case is a separate and distinct one only confined to the three appellants herein having amassed property disproportionate to the known source of income. Facts of the case of Pradeep Ram (supra) and Vinubhai Haribhai Malaviya(supra) are different from the facts of this case; as in those cases no superior court ordered reinvestigation. The ratio of Pooja Pal (supra) has no application to this appeal as the said order dated 04.08.2010 in W.P. (PIL) No.4700 of 2008 and 2252 of 2009 having not been challenged in any superior forum, the same has attained finality and thus the merit of the said order is not open to be questioned in this appeal. In the case of State of Jharkhand v. Lalu Prasad Yadav, (supra) the Hon'ble Supreme Court of India also reiterated the settled principle of law to the effect that when several offences are alleged to have been committed by several accused persons the normal rule is of separate trials. Thus in view of this Court's order dated 04.08.2010 in W.P. (PIL) No.4700 of 2008 and 2252 of 2009, this Court is of the considered view that the learned trial Court rightly did not join the two charge sheets which were filed by the Vigilance Bureau and the CBI.
37. So far as the contention of the appellants regarding splitting of record of this case from the record of the case file opened upon submission of FIR by vigilance bureau is concerned, as this court has 84 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 already held in the preceding paragraph of this judgment that the learned trial court rightly did not join the two charge sheets that the charge sheet filed by the vigilance bureau and the CBI so the natural consequence thereof was that the case record was to be spilt up. The trial court did so with the consent of the appellants upon their expressing no objection of the same. The only grievance of the learned senior counsel for the appellants in respect of the same is that there is no express statutory provision for the same. This contention of the appellants does not have any merit because it is a settled principle of law that each court has inherent power over the records of the cases with it and such inherent power includes the power to split up the case records, the law requires.
Hence in the absence of any express statutory provision still a trial court is vested with the power to spilt up the records when necessary. Hence this Court does not find any error on the part of the learned trial court in the matter of splitting of the record, more so when the same was done with the consent of the appellants and they did not question such splitting up before the trial court.
38. So far as the contention of the appellants that as this Court vide its order dated 04.08.2010 in W.P.(PIL) No. 4700/2008 and 2252/2009 did not quash the charge sheet filed by the vigilance bureau hence the charge sheet submitted by the CBI ought to have been treated as a supplementary charge sheet under section 173(8) of the Code of Criminal Procedure and not as the charge sheet submitted in a de-novo investigation, is concern it is fairly submitted by the learned senior counsel for the appellants that he does not have the copy of the said order dated 04.08.2010 in W.P.(PIL) No. 4700/2008 and 2252/2009. This ground was never agitated by the appellants before the trial court. It is not disputed that vide the said order dated 04.08.2010 in W.P.(PIL) No. 4700/2008 and 2252/2009 this court ordered reinvestigation of the case. The said order dated 04.08.2010 in W.P.(PIL) No. 4700/2008 and 2252/2009, has not been brought on record of this appeal. Under such circumstances this court is of the considered view that this ground is not open to be agitated for the first time in this appeal, more so when there is no material in the record to suggest that 85 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 this court did not quash the charge-sheet.
39. So far as the contention of the appellants regarding the contention that the learned trial court ought not have taken cognizance for the second time in the case as it had already taken cognizance of the offence of the FIR of the vigilance bureau is concerned, this ground was also never agitated before the trial court. More over as has already been discussed above, this case is related to a separate and distinct offence. No cognizance of this offence was earlier taken by the trial court. Hence the cognizance taken in respect of this offence cannot be termed as the second cognizance. Thus this contention of the appellant is without any merit.
40. So far as the contention of the appellant regarding the sanction of prosecution is concerned, it is undisputed fact of this case that the check period of this case relates to the first term of the appellant Hari Narayan Ray as the Member of the Legislative Assembly, during which period he held the office of Minister of several departments but by the time cognizance of the offence involved in this case was taken he was no more holding that office. Of course on the date of taking cognizance he was also a public servant by being elected for his second term but his said second term has got nothing to do with this offence, thus in view of the principle of law settled in the case of Abhay Singh Chautala (supra) no sanction for prosecution is required to prosecute the appellant Hari Narayan Ray, in this case.
41. Otherwise also in the absence of any failure of justice occasioned to the said appellant by his prosecution without sanction of prosecution, which ground also he did not raise during the trial, this court should not reverse or alter the impugned judgment for absence of sanction for prosecution. The Hon'ble Supreme Court of India in the case of State by Police Inspector Vs. T. Venkatesh Murthy reported in AIR 2004 SC 5117 has held as under in paragraph-7 and 11:-
7. "A combined reading of sub-sections (3) and (4) make the position clear that notwithstanding anything contained in the Code no finding, sentence and order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that court a failure of justice has in fact been occasioned thereby.86
Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017
11. The expression "failure of justice" is too pliable or facile an expression, which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. Of Environment (1977) 1 All ER 813: 1978 AC 359). The criminal Court, particularly the superior Court should make a close examination to ascertain whether there was really a failure of justice or it is only a camouflage."
42. In the case of C.B.I. vs. V. K. Sehgal and Another reported in AIR 1999 SC 3706, the Hon'ble Supreme Court of India has held as under in paragraphs-16 and 17:-
16. "Thus the powers of appeal and revision of the High Court conferred by the Code of Criminal Procedure shall be "subject to the provisions of" the 1988 Act. It is worthwhile to notice that a trammel has been imposed on a court of appeal and revision under Section 19(3)(a) of the 1988 Act. It reads thus:
(only the material portion is extracted): "Notwithstanding anything contained in the Code of Criminal Procedure, 1973:- no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
Explanation.--for the purposes of this section,--
(a) error includes competency of the authority to grant sanction."
17. It is a further inroad into the powers of the appellate court over and above the trammel contained in Section 465 of the Code which has been dealt with supra. Under Section 19(3)(a) no order of conviction and sentence can be reversed or altered by a court of appeal or revision even "on the ground of the absence of sanction" unless in the opinion of that court a failure of justice has been occasioned thereby. By adding the explanation the said embargo is further widened to the effect that even if the sanction was granted by an authority who was not strictly competent to accord such sanction, then also the appellate as well as revisional courts are debarred from interfering with the conviction and sentence merely on that ground."
43. In this case the appellant has not raised the point of absence of sanction for prosecution before the trial court. Nothing has been submitted on behalf of the appellants to suggest that any failure of justice 87 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 has been occasioned to the appellant Hari Narayan Ray, hence for this reason also the impugned judgment does not warrant interference on the ground of absence of sanction for prosecution.
44. So far as the contention of the appellants regarding offence against the appellants Sushila Devi and Sanjay Kumar Ray with the aid of section 109 Indian Penal Code is not made out is concerned, it will be profitable to refer to section 109 Indian Penal Code, which reads as under:
109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.--Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation.--An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.
45. As already indicated above in the case of P. Nallammal v. State, (supra) it has been held by the Hon'ble Supreme Court of India that that the offences under Section 13(1)(e) of the Prevention of Corruption Act,1988 can be abetted by another person. In the case of State of Karnataka v. J. Jayalalitha, (supra) where the case of the prosecution was that, as on 1-7-1991, A-1 was found in possession of properties and pecuniary resources in her name and in the name of A-2, who was living with A-1 at No. 36, Poes Garden, Chennai to the extent of Rs 2,01,83,957/- including the properties acquired in the name of M/s Jaya Publications, M/s Sasi Enterprises and Namadhu MGR, which had been floated by A-1 and A-2 with themselves as partners. But, after 1-7-1991, there was sudden spurt in the acquisition of assets and during this period, A-1 and A-2 floated several firms in the names of A-2, A-3 and A-4 and the further case of the prosecution was that during the check period i.e. from 1-7-1991 to 30-4-1996, there were no business activities at all in respect of many of the above firms, and in respect of others, the activities were more in the nature of acquiring assets like lands, machinery, building, etc., which were not production oriented and no income tax returns were filed by these firms. No assessment for commercial tax has also been done with 88 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 respect to the business of these firms and A-1 also did not file her income tax returns for Assessment Years 1987-1988 to 1992-1993 till November 1992 and when this issue was sought to be raised in Parliament, A-1 filed the income tax returns for the above period in November 1992 and subsequent to 1-7-1991, assets in the form of movable and immovable properties and pecuniary resources like bank deposits, etc., were found acquired not only in the name of A-1, but also in the names of A-2, A-3 and A-4 and the firms floated in their names and scrutiny of various bank accounts maintained in the names of A-1 to A-4 and in the names of the above firms disclosed that huge credits in cash had been frequently made into various accounts which were not commensurate with the income of the individuals and of the firms concerned, the Hon'ble Supreme Court of India held the appellants guilty of the offences punishable under Section 109 IPC read with Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 as well by setting aside the judgment of acquittal of the High Court and restoring the order of conviction of the trial Court.
46. As has been observed by the Hon'ble Supreme Court of India in paragraph 224 of the case of State of Karnataka v. J. Jayalalitha (supra) as under:
" Xxxxxxxxxxx in all human affairs, absolute certainty is a myth and the law does not require the prosecution to prove the impossible. All that was required is the establishment of such a degree of probability that a prudent man may on this basis believe in the existence of the fact in issue. Legal proof is thus not necessarily perfect proof and is nothing more than a prudent man's estimate as to the probability of the case."
In paragraph 579 of the said case it was observed as under
"579. In the above alarming backdrop of coeval actuality, judicial adjudication of a charge based on an anti-corruption law motivated by the impelling necessities of time, has to be informed with the desired responsibility and the legislative vision therefor. Any interpretation of the provisions of such law has to be essentially purposive, in furtherance of its mission and not in retrogression thereof. Innovative nuances of evidential inadequacies, processual infirmities and interpretational subtleties, artfully advanced in defence, otherwise intangible and inconsequential, ought to be conscientiously cast aside with moral maturity and singular sensitivity to 89 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 uphold the statutory sanctity, lest the coveted cause of justice is a causality."
47. As already indicated above the evidence in the record establishes that huge amount of property were acquired in the names of the appellants Sushila Devi and Sanjay Kumar Ray who are respectively the wife and brother of the co-convict public servant at the relevant time namely Hari Narayan Ray and that Hari Narayan Ray ensured acquisition of property in their name with their full knowledge and cooperation and they also enjoyed the property in their name which were beyond their means. Like in the case of State of Karnataka v. J. Jayalalitha (supra) the appellants Sushila Devi and Sanjay Kumar Ray, did not file the income tax returns during the due date but they filed the same subsequently. They took cheques in lieu of cash from several persons. The evidence also establishes that the co-convict public servant at the relevant time namely Hari Narayan Ray called the postal agent and Sushila Devi told him about the deposit to be made and the staff of the co-convict public servant at the relevant time namely Hari Narayan Ray deposited the money. The evidence in the record regarding the bank accounts of the appellants Sushila Devi and Sanjay Kumar Ray in the names of various firms which belonged to them, shows flow of funds and transactions not commensurate with the business done by such firms. These facts overwhelmingly demonstrate the collective culpable involvement of these two appellants in the transactions in the face of their overall orientations so as to render the same to be masked banking exchanges. Thus this Court is of the considered opinion that this contention of the appellants that offence against the appellants Sushila Devi and Sanjay Kumar Ray with the aid of section 109 Indian Penal Code is not made out, is without any merit as well.
48. So far as the grounds mentioned in the appeal memo that the learned trial court could not properly appreciate the evidence in the record in their proper perspective and the evidence in the record was insufficient to establish the charges against the appellants beyond reasonable doubt is concerned even though the learned senior counsel did 90 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 not take this Court through the evidence in the record but this Court went through the entire evidence in the record carefully. It is needless to mention that the major parts of the evidence are documentary in nature contained in the exhibits 1 to 78/1 of this case. Nothing has been elicited in the cross-examination of any witness to discredit or disbelieve the evidence in the record, except a hostile witness. This could be the most probable reason why the learned senior counsel for the appellants did not think it proper to take this court through the evidence in the record during the hearing of the appeal. As already indicated above the evidence in the record discussed and inter alia mentioned in paragraphs - 21 and 22 of this judgment in tabular form, establishes that, the total amount of the assets acquired during the check period is Rs.2,34,92,372/-. The income accrued during the check period is Rs.1,55,27,619/- and the expenses incurred during the check period of Rs.68,30,601/-. Thus, the assets found disproportionate to the known source of income which the appellants could not satisfactorily account for is Rs.1,46,25,354/-. Thus it is established that the appellant- Hari Narayan Ray was found in possession of assets in his name, in the name of his brother appellant-Sanjay Kumar Ray and in the name of his wife the appellant- Sushila Devi, disproportionate to the known sources of income which he could not satisfactorily account for. Thus the percentage of disproportionate assets over and above income was 94% of the income. These evidence, in the considered opinion of this Court, is sufficient to warrant the conviction of the appellants. Thus this ground mentioned in the appeal memo is also devoid of any merit.
49. In view of the discussions made above, this Court is of the considered view that the evidence in the record is sufficient to establish the charges for the offences punishable under Sections 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988 against the appellant Hari Narayan Ray and the charges for the offences punishable under Section 109 of the Indian Penal Code and Sections 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988 against the co-convict-appellant Sanjay Kumar Ray and his wife and co-convict-appellant Smt. Sushila 91 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 Devi. Hence the conviction of all the three appellant-convicts for the respective said offences is proper. Thus there is no justification to interfere with the impugned judgment of conviction dated 14.12.2016 passed by the learned Special Judge, C.B.I/ Anti-Corruption Bureau, Ranchi in R.C. Case No.04(A)/2010-AHD-(R), accordingly the said judgment of conviction is confirmed.
50. So far as the sentence is concerned, it is pertinent to mention here that rampant corruption is seen in every walk of our life. As has been observed by the Hon'ble Supreme Court of India in paragraph - 580 in the case of State of Karnataka v. J. Jayalalitha (supra) which reads as under :
"XxxxxxxxxxCorruption is a vice of insatiable avarice for self-aggrandisement by the unscrupulous, taking unfair advantage of their power and authority and those in public office also, in breach of the institutional norms, mostly backed by minatory loyalists. Both the corrupt and the corrupter are indictable and answerable to the society and the country as a whole. This is more particularly in re the peoples' representatives in public life committed by the oath of the office to dedicate oneself to the unqualified welfare of the laity, by faithfully and conscientiously discharging their duties attached thereto in accordance with the Constitution, free from fear or favour or affection or ill-will. A self-serving conduct in defiance of such solemn undertaking in infringement of the community's confidence reposed in them is therefore a betrayal of the promise of allegiance to the Constitution and a condemnable sacrilege. Not only such a character is an anathema to the preambular promise of justice, liberty, equality, fraternal dignity, unity and integrity of the country, which expectantly ought to animate the life and spirit of every citizen of this country, but also is an unpardonable onslaught on the constitutional religion that forms the bedrock of our democratic polity."
51. Peoples' representatives, particularly those holding public office, are frequently seen amassing property beyond their known source of income. In such serious cases showing mercy to such corrupt People's representatives may send wrong signals. The Hon'ble Supreme Court of India, in the case of Narendra Champaklal Trivedi v. State of Gujarat, 92 Cr.App(SJ)100 of 2017 With Cr.App(SJ)153 of 2017 With Cr.App(SJ)187 of 2017 (2012) 7 SCC 80 has observed thus in paragraph -30 "Xxxxxxxxxxx It should be paramountly borne in mind that corruption at any level does not deserve either sympathy or leniency. In fact, reduction of the sentence would be adding a premium. The law does not so countenance and, rightly so, because corruption corrodes the spine of a nation and in the ultimate eventuality makes the economy sterile."
Thus in this backdrop, considering the huge amount of property detected to be amassed by the appellant-convicts, the sentence also appears to be proper. Accordingly, the order of sentence dated 14.12.2016 passed by the learned Special Judge, C.B.I/ Anti-Corruption Bureau, Ranchi in R.C. Case No.04(A)/2010-AHD-(R) is also confirmed. Thus these three appeals being without any merit are dismissed.
52. Perusal of the record reveals that the appellant-convicts are on appeal bail. All the three appellant-convicts are directed to surrender before the learned court below to serve out the sentence failing which the trial court is directed to take all coercive steps against them for undergoing the sentence.
53. Let the lower court records along with a copy of this judgment be sent to the learned court below forthwith.
(Anil Kumar Choudhary, J.) In the High Court of Jharkhand, Ranchi Dated 04/11/2020 AFR/ Animesh 93