Gauhati High Court
Page No.# 1/35 vs Cbi on 13 June, 2025
Page No.# 1/35
GAHC010003912008
2025:GAU-AS:7756
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./161/2008
SARAT CH. BORA
S/O LT. AKADAHIA BORA, R/O URMI BHAVAN, ZOO NARENGI ROAD, PS.
GITA NAGAR, GHY-24, DIST. KAMRUP, ASSAM.
VERSUS
CBI
-
Advocate for the Petitioner : MR.M DAS, D NEOG,MR.B M CHOUDHURY,MR.S
BHARALI,MR.U CHOUDHURY,MS.B CHOUDHURY,N DUTTA, SR. ADV.,MS. N BHARALI,MR.
N K NEOG
Advocate for the Respondent : , ,,,,SC, CBI
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
JUDGMENT
Date : 13-06-2025
1. Heard Mr. S Bharali, learned counsel for the appellant. Also heard Mr. M Haloi, learned Special Public Prosecutor, CBI.
2. The challenge:
The present appeal is directed against the judgment and sentence dated 05.08.2008, passed by the learned Special Judge, CBI, Assam, Page No.# 2/35 Guwahati in Special Case No. 85/2004 (Old case No. Spl. 4(c) 2000), whereby the appellant was convicted under Sections 13(1)(e) of the Prevention of Corruption Act, 1988 and was sentenced to undergo for 2 (two) years of simple imprisonment with a fine of Rs. 5,00,000/-, in default of payment of fine, to undergo further imprisonment for 1 (one) year.
3. The Background:
I. The prosecution was launched by Central Bureau of Investigation (CBI), against accused Sarat Ch. Borah, an Assistant Engineer, CPWD, Guwahati, based on alleged source of information registered a case being Case No. RC.28(A)/96-SHG, alleging that the said Sarat Ch. Borah acquired huge wealth during his service tenure from 1971 to 1986, which was not in proportion to what he then earned, from out of his all known income sources and had failed to account the same satisfactorily.
II. The Investigating Authority investigated the matter and subsequently, after completion of the investigation, filed charge-sheet against the appellant under Section 13(2), read with Section 13(1)(e), of the P.C. Act, 1988. The learned court below framed formal charges under Section 13(1)(e), P.C. Act, 1988 and when the appellants claimed to be not guilty, the trial commenced.
III. To bring home the charges against the appellant, the prosecution examined as many as 22 witnesses. The accused was examined under the provision of Section 313 Cr.P.C. and thereafter the accused led evidence in support of defence by examining five Page No.# 3/35 witnesses including himself.
IV. After considering the materials, the learned Special Judge passed the impugned judgment of conviction and imposed the sentence as recorded hereinbefore. Being aggrieved, the present appeal is preferred
4. The evidence:
Before considering the legality and validity of the judgment impugned, let this court first analyze the evidences lead by the prosecution as well as by the defence in support of their respective projected case.
I. PW1 deposed that he retired as Director General, CPWD in the year 2000 and he was the Disciplinary Authority of Group B officer of CPWD. He proved Ext. 2 as the sanction for prosecution of the accuser for prosecution and proved his signatures as Ext. 2(1) to 2(10).
During his cross-examination, he denied the suggestion that he did not check and verify all the materials placed before him before according sanction. He also denied the suggestion that the appellant had no disproportionate assets in comparison to his known source of income. During cross, he also denied that he signed the draft sanction order without going through the same placed by the CBI.
II. PW2 is a search witness. In his deposition he stated that during 1996 he was serving as Sr. Personnel and Administrative Officer, Guwahati refinery. On 27.07.1996, CBI Personnel searched the house of accused and during search he was present and the CBI Page No.# 4/35 personnel prepared the search list, seizure list and also prepared inventory of articles and other documents. He further deposed that he signed on those seizure list and inventory memo. He proved Ext. 3 in four sheets as the search list and his signatures as Ext. 3(1) to 3(4). He further deposed that during search Sr. Hindi Officer Sri SK Tripathi was also present. He proved Ext. 3(5) to 3(8) as the signature of said Tripathi. He also proved Ext. 4 to 6 sheets as the inventory prepared by CBI wherein Ext. 4(1) to 4(6) were his signature and Ext. 4(7) to 4(12) were the signatures of said Tripathi.
During cross-examination, he deposed that he could not say exactly from which place the documents mentioned in Ext. 3 were recovered through he was present all alongwith the CBI personnel.
III. PW3 is another search witness and in the year 1996, he was also working in in Noonmati Refinery Guwahati. He further stated that he was present during the search and seizure made in the residential premises of SriSarat Ch. Bora situated at Gitanagar, Guwahati. He proved the seizure and inventory as Ext. 4(7) to 4(12) and 3(5) to 3(8) as his signatures.
During cross-examination, he deposed that he could not say from which place of the residence the documents mentioned in Ext.6 were found. During cross-examination, he also deposed that he could not remember at this stage the nature of the documents seized by the CBI and also could not remember whether the documents seized were sealed or not by the CBI.
IV. PW4 was working as Branch Manager, New India Page No.# 5/35 Assurance Co. Ltd. Noonmati, Guwahati during 1995 to 1998 he. PW4 further stated that the New India Insurance Company Limited issued insurance policy against movable and immovable property including the personal insurance. The value of the property insured is declared by the insured person by standard proposal form. Ex 5 is the insurance policy in respect of a Motor Vehicle No. As.01-C-6600, LML scooter valued at Rs.26,020/-. Ex 5 (1) is my signature. Ex 5 was issued in favour of Gautam Ch. Bora son of S.C Bora, Urmi Bhawan, Zoo NarengiRoad, Guwahati. The Premium paid stands at Rs.380/-.The insurance policy was issued on27.10.94.
Ex 6 is also another insurance policy in respect of a premier padmini car bearing registration no.AS-01-A-7323 in the name of Miss Olee Bora, Urmi Bhawan, opposite to Gitanagar P.S., Zoo Narengi Road, Guwahati.The value of the car is shown as Rs.1,62,000/-and premium paid is Rs.5334/- . This was issued on 26.9.94. Ex 5 and 6 are the carbon copies. The originals have been given to the client.Ex6 was issued from his office. He could not say under whose signature it was issued. Ex 7 is the seizure memo by which Ex 5 and 6 were seized from the office. Ex 7 (1) is my signature.
Ext. 8 is another Insurance Policy in regard to Insurance of residential building and it is belonging to S.C.Bora, Zoo Narengi Road, Guwahati. Sri Bora declared the valuation of his house at Rs.10,50,000/- and for his house hold belongings is Rs.1,10,400/- and for colour TV is Rs.11,000/- and the total premium paid is Rs.1,245/-. Date of policy started from 26.4.95. This policy was issued under the signature of Sri S.Dhar, the then Sr. Assistant. He further stated that Page No.# 6/35 he knew his signature and Ex 8(11) is the signature of Sri S.Dhar.
During cross-examination, PW4 stated that Ex 5 and 6 were produced by him on 12.8.98 to the CBI inspector, Mr. R.P. Bose. At the time of seizure of the office copy of Ex 5 and 6 he was not asked by CBI to produce the original. The Ex 5 and 6 were issued on the basis of the proposal submitted by the client. In the proposal, valuation of the property to be insured is shown. The vehicle mentioned in Ex 6 was manufactured in the year 1991 and insured on 26.9.94.
V. PW5 was working as Architect and Registered valuer during 1997. Ext. 9 is the valuation report in respect of the immovable properties like building of Sri Sarat Ch. Bora. He further deposed that the appellant engaged him to value his building situated at Zoo Narengi Road and accordingly he valued the same and submitted report as Ext. 9 in three sheets with enclosures and site plan. He proved his signature as 9(1) to 9(4). He further stated that the building was evaluated as per Assam State PWD rate at Rs. 9,63,000/-.
In cross-examination, PW5 deposed that the valuation was made on December, 1995 and while evaluating the valuation of the building, he measured the whole building. He further deposed that in his report detailed in respect of electrical fittings, sanitary and water connection and fitting are not given.
VI. PW6, was serving as Deputy Manager, SBI, Guwahati during 1999. He proved Ex. 10 as the forwarding letter of Magnum Certificate issued in favour of Sarat Ch. Bora. And Ex. 10(1) to 10(20) Page No.# 7/35 as the Magnum Certificates issued in favour of SC Bora valued at Rs. 500/- each.
During cross-examination, PW6 stated that from 1994 to 1998 he was serving in SBI, Baghmara Branch of Garo Hills. He stated that all the SBI branches are not authorized to accept the applications for issue of magnum certificates. He stated that the SBI, Guwahati Main Branch Personnel Banking Division has received application No. 0244235 as Ext. 12 but Ext. 12 did not bear signature of the customer, Urmila Bora.
VII. PW7 was working in the SBI, Gitanagar Branch as Accountant from 1995 to August, 1999. He further stated that SB A/C No. C14/1983, D11/1630 and D5/657 are the pass books of account issued from SBI, Gitanagar Branch issued in favour of S.C. Bora, Gautam Bora, Kula Prasad Bora and Sarat Ch. Bora respectively. He further deposed that Ext. 19, 20, 21, and 22 are the R/D A/C pass book bearing A/C No. 5/719, 15/2035, 1/551 and 179 issued in favour of Kumari Olee Bora, Kula Prasad Bora, Sarat Ch. Bora and Miss Olee Bora issued by the SBI, Gitanagar. He further stated that STDR as A/6 847914 dated 6.3.96 in the name of Sarat Ch. Bora for Rs. 1,02,536/ and STDR No. TDA/20 570732/- for Rs. 1,21,512 dated 8.7.96 in the name of Smti Urmila Bora were issued from Gitanagar Branch of SBI respectively and these STDRs were issued under his signature for and on behalf of Branch Manager.
VIII. PW8 was posted as Executive, Headquarter CPWD at Guwahati in the month of May, 1997. During the relevant period, Sri D.L. Rao was the Superintendent at Shillong. In the month of Page No.# 8/35 January, 1997, he received a letter from Superintending Engineer Sri. D.L. Rao for assessing the value of the residential building belonging to one SC Bora, Asstt. Electrical Engineer, CPWD posted at Guwahati.
During cross-examination, he deposed that Civil Architecture are two different branches of engineering. During cross, he stated that he did not receive any information or letter from the Chief Engineer, CPWD Shillong for the purpose of assessing the residential building belonging to S.C. Bora.
IX. PW9 an individual deposed that on 26.7.94, he had purchased a plot of land measuring 1 K. 5 Lechas covered by Dag No. 219 (O) 261 (N) of K.P. Patta No. 31 (N)/19 (O) and patta No. 32 Dag No. 258 of village (1) Madgharia under Mauza Beltola, District Kamrup along with one Assam type building standing over the land from Dr. Carolin Anne Farwel, W/O Md. Rafiqul Hussain at a consideration of Rs. 2 Lakhs vide registered sale deed.
During cross-examination, PW9 stated that Assam type house constructed on the plot of land purchased by him was about 7 to 8 years of old from the date of purchase.
X. PW10 is a State Bank employee. He stated that in response to summons to Branch Manager, SBI, Geetanagar branch, he had produced the documents mentioned therein as per direction of the Branch Manager in the court that day. He had produced today the STDR No.SD A/6-A47914 DTD 6.3.96 for Rs. 1,02,536/- in the name of Sri S.C. Bora and STDR No .TD A/20-570732 dtd 8.7.96 for Rs .1,21,512/- in the name of Smti. Urmila Bora. Alongwith 2 STDRs Page No.# 9/35 he had also brought 2 pay in slips in the name of S.C. Bora and Smti Urmila Bora respectively as well as 2 applications filled by S.S Bora and Urmila Bora dtd 14.9.98 respectively.
During the cross-examination, PW10 stated that as per discussion with the branch manager he had produced all those documents stated above and he had no personal knowledge about all these documents because he did not deal with all these documents.
XI. PW11 is the individual who deposed that he knew accused Sarat Ch. Bora. He further deposed that he purchased land from him measuring 1k. 5 L of land of village Hengrabari for Rs.50,000/- from Smti Urmila Bora, wife of Sri S C Bora . He delivered photo copy of the certified copy of the sale deed to the CBI.
The sale deed was executed on 6.8.96. According to him, the photo copy of the same, delivered to the CBI also contained his signature and the certificate. According to him, Mark 2 is the photo copy of the sale deed, and Mark (1) to z(3) are his signatures. He also deposed Vide seizure memo dtd 4.9.98 the documents marked z were handed over to the CBI Inspector which bears his signatures. He proved Ex. 33 as the seizure memo and ex.33(11) as his signature.
During cross-examination, PW11 stated that he knew Mr. Labanya Deka. As per information given by Labanya Deka, he met Sri Sarat Ch.Bora in the context of purchase of land. He paid the consideration money in cash not through cheque. He denied the suggestion that paid Rs .2,70.000/- to Smti Urmila Bora as consideration money for the purchase of land described in document marked z and also Page No.# 10/35 denied that he paid the consideration money through cheque on different dates i.e. 1.12.95 to 11.5.96. He further denied the suggestion that the documents marked as Z is not a sale deed and is an agreement.
XII. PW12, is an employee of the Assam Co-operative Apex Bank Ltd, Bijaynagar. During 1980, he was Accountant of the said bank. As per letter dtd 26.8.98, the Assam Co-operative Apex Bank Ltd, Noonmati Branch forwarded 3 documents i.e. specimen signature card of S.C. Bora, SC Account opening form in the name of S.C. Bora (both documents in original) as, well as statement of account No.4333 in the name of S.C. Bora bearing his signature alongwith the bank seal. The letter dtd 28.8.98 was written by his handwriting and issued in the signature of Sri Hizen Deka, the then Branch Manager. He further stated that he knew his writings and signature. He proved the letter as Ex 34 and his signature as Ex 34 (1). He proved Ex 35 (under objection) as the statement of account No.4333. and Ex 35 (1) as his signature, Ex 36 and 37 as the account opening forms and specimen signature card respectively. According to him, the SB account No. 4333 has been closed and Exts 36 and 37 have been prepared according to the Bank Rules.
During cross-examination, PW 12 stated that at the time of preparation of Ex 36 and 37 he was not in the Branch and as such he could not say about the interpolation in respect of account number and ledger number in Ex 36 and 37. He admitted that Ex 36 (A) and 37 (A) are the interpolation and over writings and that Ex 35 does not contain any certificate as per Bank's Book Act. According to him, Ex Page No.# 11/35 36 the statement relates to the period from 8.6.85 to 28.6.90, the credit amount dtd 9.1.86 for Rs.4435.61 is on transfer and similarly the credit entry was made on 3.9.87 for Rs.6065/- on transfer from RD account. He admitted that unless and until the original is before him he could not say about the entries dtd 9.1.86 and 3.9.87.The entries made in Ex 35 are on the basis of original ledger, pay in slip and voucher etc. and without looking to these documents, it will not be possible on his part to say how the entries has been made in Ex.
35. XIII. PW13, during 1997 was working as Superintending Engineer (Electrical) CPWD, Guwahati. Accused was Asstt. Engineer (Electrical) under him. He proved Ex 38 as the pay particulars of Sri S.C. Bora and proved as Ex 38(1) as his signature. He deposed that Ex 39, in 37 sheets is the certified copy of Service book of accused S.C. Bora. He deposed that Exhibit-40 is a letter dtd 21.8.97 addressed to SP/CBI, sent under his signature through he had submitted certified copy of pay particulars Ex 38 and 39 of accused S.C. Bora, and Ex 40 (1) was his signature and Ex 41 in 6 sheets is the consolidated annual statement of immovable properties of S.C. Dora for the year 1906 to 1996.
During cross-examination, PW 13 stated that Ex 39 does not contain any certificate in each page to show that this is the certified true copy of the ACR of S.C. Bora. The original Service book of the accused is lying in the office of the Superintending Engineer, CPWD, Guwahati. The original Service book had not been shown to him that day nor it had been taken by the CBI. Ex 39 is not paginated. On 26.4.62 Page No.# 12/35 accused joined as Sectional Officer (Electrical) now designated as Junior Engineer (Electrical). In the year 1981 the accused was promoted as Asstt. Engineer and he retired as Asstt. Engineer. He denied the suggestion that Ex 39 was not the entire service book of S.C. Bora.
XIV. PW14, was working in the UTI as Asstt. Manager and Branch Manager as well. He proved Ex. 42 as the renewal contribution challan for ULIP in the name of Sri S.C. Dora bearing member ship No. 4000012159407 amounting to Rs.4000. According to him, From Ex 42 it appeared that 8 instalments of Rs. 4000/- each had been deposited by Sri S.C. Bora till 10.1.95. He proved Ex 43 is the membership certificate No.950231002737 in the name of Olee Bora. This witness deposed that Ex 43 shows that Rs. 2.000/- through Ex 44 was the initial contribution and later on through Ex 45 Rs.6000/- was contributed on 8.7.96. According to him, Ex 46, Unit certificate of growing income unit Scheme for 2500 units for Rs.25000/- in the name of Sri Goutam Ch. Bora and Ex 47 is the NIT certificate for 2000 units for Rs.20,000/- under 7 years monthly income scheme in the name of Gautam Ch. Bora that the certificates Ex 46 and 47 were issued after contribution of the whole amount mentioned therein.
During Cross-examination, PW14 stated that he was in Guwahati office of UTI since August, 1999. During 1992 to 1999, he had been serving in the Zonal Office Kolkata. According to him, Exbt: 42 is Challan Calling upon Sarat Ch. Bora to pay the 8th instalment of ULIP membership No. 000012159407. PW14 further stated that he had not Page No.# 13/35 seen before the Court the application of Sri S. Bora, preferred before the company concerned.
XV. PW15 was working as Asstt. Post Master in GPO, Guwahati during 1995-96. He was the In-charge of the NSC branch. NSCs were issued to the customer under his signature. Ex 48 to 62 are the NSCs issued under his signature for Rs.1000/-, Rs.1000/-, Rs.1000/- Rs.10,000/-. Rs.1000/- Rs 1000/-, Rs.10,000/-, R.10,000/- Rs.10,000/ Rs. 1000/-, Rs.1000/-, Rs.1000/-, Rs.1000/-, Rs.10,000/-, and Rs.500/-. Ext. 48 to 56 are in the name of Olee Bora while Ext. 57 to 62 are in the name of S.C. Bora. He was also In-charge of the KVP. Ex 63 aal 64 are the KVPs for Rs.5000/- and Rs.10,000/- in the name of Olee Bora. Ex. 63 (1) and 64. (1) are his signatures. Ex 65 to 77 are the NSCs issued from Guwahati GPO under the signature of Prasanna Kumar Das, his predecessor. Ex 65 (1) to 77 (1) are the signatures of Prasanna Kumar Das. Exts. 66 to 69 are in the name of Gautam Ch. Bora amounting Rs.10,000/-each. Ex 70 to 77 and 65 are in the name of S.C. Bora for Rs.10,000/- each.
XVI. PW16 was posted and functioning as Sub-Postmaster, Bamunimaidan Sub Post Office, Guwahati from June, 1997 to July, 2001.
During cross-examination, PW16 stated that in the year 1995,he was the Postmaster of Bamunimaidan Sub Post Office. From 17.2.95 to 6.2.96 he had not worked in the Bamunimaidan Post Office. The application form duly filled up by the depositor is not available with the record in respect of the Ex 78 to 85.
Page No.# 14/35 XVII. PW17 during 1991, purchased a Flat Car bearing No. AS-01 7323 at a price of Rs.16.63,000/- from M/sWold Ford Transport Co. Guwahati. In 1994,he sold the car to Miss Olee Bora, Daughter Sri S.C. Bora for Rs.1,47,000/-. The amount was received by him from S.C. Bora in cash. He did not meet Miss Olee Bora. Ex 86 is the sale receiptof the said car which is in his handwriting and he had signed it at Ex 86 (1). Mr Pradip Dutta was the witness of this transaction, who was relative of Mr S.C. Bora. During cross-examination, PW17 stated that the amount of Rs.1,47,000/- was received by him on account of sale transaction of his car from Sri S.C. Bora on behalf of his daughter Olee Hora XVIII. PW18 was working as Administration Officer, LIC, at Guwahati in the year 1989. He proved Ext.87 as status report of policy No.035561045 is in the name of Shri Sarat Ch. Bora (accused), commencing on 13.6.72 with maturity date 13.6.97, having a maturity value of Rs. 15,000,00 and premium amount is Rs. 5,17, 270 actually.
During cross-examination, PW18 stated that he prepared Ext.87 on the basis of policy beg and policy documents. These documents were produced in the court.He further stated that if he had to vouch the correctness of the statement made in Ext.87he had to check the documents on the basis of which statue report was prepared. He had not mentioned in the statue report as to the total premium paid by the policy holder.
XIX. PW19 was a businessman having business of Motor Spare Parts. He further deposed that he knew the accused S.C. Bora as his elder brother was C.P.W.D. contractor. During 1992,his father Page No.# 15/35 purchased an Ambassador Car bearing No.AL-057433 from Shri Gautam Chand Bora, son of the accused at a price of Rs.63,000/-. The amount was paid in cash. Mark "X" is the Sale Deed and Purchase deed. Ex X(1) is the signature of his father, who wrote it in his presence.
This witness was not cross-examined.
XX. PW20 was Inspector CBI, Gauhati Branch during 1996 (July) and Mr. M.K. Jha, was the S.P. CBI, Guwahati. He further deposed that he could recognize his signature. He proved Ex.88 as the FIR lodged by Mr. M.K. Jha, Ext.88(1) as his signature, which he knew. On 25.7.96, he started investigation of the case as per direction of S.P, accordingly, he conducted search in the residence of accused S.C. Bora on 27th July 1996 in presence of independent witnesses. Ext.3 was the seizure list of the house of the accused, prepared by him. Ext.3(9) is his signature. Inspector S.I., Adani Mao was also, present while the search was carried out. He further deposed that he was conversant with his signature. Ext.3(10) to 3 (13) are the signatures of Mr. M.K. Jha. According to him, during the course of house search at Zoo Narangi Road, the details of belongings in the house of accused was also prepared by A. Mao, S.I. under his direction. Ext.4 is the inventory. All the pages of inventory bears his signature as well as of Mr. Mao. Ex.4(13) to 4(18) are his signatures. Ext.4(19) to Ext.4(24) are the signatures of A. Mao. During investigation, he examined Kamal Shama, Samaresh Mazumdar, Pradip Sen Gupta, Bolaram Prasad, Debi Singh Pradhan, Prakesh Varma and Binod Kr. Agarwalla.
Page No.# 16/35 During cross-examination, PW-20 stated thatMr. M.K. Jha the then S.P. who lodged the FIR is still in service and at present posted at New Delhi, as S.P. He further stated that he did not know anything about source information, received by Mr. Jha, the persons whom he examined, relating to cash memos, Bonds, certificates, regarding investment recovered during the search. He further stated that he did not recollect whether there was any other persons residing in that house except Mr. Bora & his wife. During enquiry it came to light that the accused having two sons. The daughter was working as Deputy Manager I.D.B.I., Guwahati. He further stated he had not investigated as to whether two sons of accused were working or not.
XXI. PW 21 in his deposition stated that he started business in the year 1994 and he knows Shri Kola Prasad Bora, S/o Shri S.C. Bora, residing at Zoo Narangi Road, opposite to Geetanagar P.S. He further stated that he had taken a loan of Rs. 1,00,000/- from S.C. Bora and the amount was returned in instalment. Ext.89 is the agreement pertaining to loan.
During cross-examination, PW21 stated that Kola Prasad Bora was his friend. He further stated that he did business with Boba Prasad Bora during 1994/95. In the course of business, some transaction had taken place. For doing the business he used to take money from Kola Prasad Bora and also returned the same. As a matter of fact, he took loan Rs.50,000.00 from Kola Prasad Bora though Ext. 89. Ext.89 does not contain the signature of Kola Prasad Bora. He further stated that he repaid the loan amount in the year 1995. Ext.90 was vouchered and it was returned to him. Ext. "E" is the Memo whereby the cheque Page No.# 17/35 Ext. 90 was returned. Subsequently he paid Rs. 30,000.00 in cash to Kola Bora.
XXII. PW22, was posted as Inspector, CBI, Guwahati from 1994, May to March, 2004. R/C 28/A/96-SHG was originally investigated by Shri AB Gupta. Following his transfer, the case was entrusted to him to complete the remaining part of investigation and the case was handed to him on 30.07.1997. Being entrusted, he investigated the case, examined witnesses, seized documents and on the completion of investigation, he obtained sanction order from competent authority and filed charge sheet as well. He proved Ext.91 to Ext.95 as the seizure memos through which documents mentioned therein were seized by him and Ext.91(1) to Ext.95(1) as his signatures. PW22 further stated that Shri A.B.Gupta, Inspector and Adani Rao, Sub- Inspector searched the house of accused SC Borah on 27.07.1996 and prepared an Inventory of all articles found in the possession of the accused person. He proved Ext.3 as the seizure list and Ext.4 as the Inventory, Ext.4(19), 4(20) to Ext. 4(24) as the signatures of Shri Adani Rao, which he could identify.
During cross-examination, PW22 stated that by Ext.91, he seized the pay statements of Shri BC Borah in 41 sheets and xerox copy of letter dated 29.03.1995, letter dated 24.08.1992, letter dated 26.10.1992 and Trade Licence No. 195/673 of MM Enterprise.
5. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PETITIONER:
Mr. Bharali, learned counsel for the appellant assailing the impugned Page No.# 18/35 judgment argues the following:
I. In charge sheet, while calculating disproportionate assets, prosecution included income of daughter and the sons of the accused and also considered their expenditure and assets to find out disproportionate assets. To find out disproportionate assets of the accused, learned trial court excluded income of the daughter and sons while considered their assets as assets of accused and as such, reconstructed a story different from the one propounded by the prosecution, which is not permissible under law.
II. The prosecution also considered rental income of the accused and withdrawal from GPF. However, most erroneously, trial court excluded rental income and withdrawal from GPF resulting in increase in the amount of disproportion more than 3 lakhs and thus, the learned Special Judge had arrived at an erroneous finding of fact.
III. There is no allegation of benami transaction by the prosecution and therefore, in absence of any allegation that the wife, sons and the daughters are benamider, prosecution is barred to include assets in the name of son, daughters and wife as property of the accused inasmuch as when there is allegations of benami transaction it is the prosecution who is to prove such allegation and in the case in hand., no such proof was there. In support, Mr. Bharali places reliance on the determination made by the Hon'ble Apex Court in Valliammal vs. Subramaniam reported in 2004 7 SCC 233.
IV. The valuation of the building by prosecution was without basis inasmuch as, admittedly, construction was started in the year Page No.# 19/35 1981 and competed in the year 1995 and the valuation was made as on November, 1995. The witness admitted that valuation was not prepared on the basis of actual cost incurred by the accused but was done on the basis of State PWD rate, which itself is erroneous. The reliance on valuation of the building in the year 1995 for purpose of insurance cannot be the valuation of cost of construction of the building. Thus, the prosecution evidence regarding valuation of the building is completely unreliable and therefore, the charge of the prosecution of the appellant being in possession of assets value which are disproportionate to his known sources income cannot sustain.
V. Mr. Bharali, extensively argued on the wrong calculation based on statement A, B, C & D of the charge sheet and the evidence and argues that this court shall review the evidence upon which the order of acquittal is based which will clearly show that the disproportionate assets, if there is any, on the basis of the statement A, B, C & D during the said period, is about 2.88%. Beyond that an amount of Rs.50,000, as loan advanced to PW-1 was treated to be 1 lakh and if such amount is deducted, there will be much less disproportionate income.
VI. In terms of the charge sheet and considering the evidence, if a proper calculation is made, there shall be no disproportionate assets. Accordingly Mr. Bharali argues that the appellant is liable to be acquitted.
6. ARGUMENT ON BEHALF OF THE RESPONDENT:
Per contra, Mr. Haloi learned Special PP, CBI argues the following:
Page No.# 20/35 i. That the learned Trial court after perusal of the evidence on record found that the accused could not satisfactorily account for the assets found in the possession of the accused during search and therefore, the learned Trial Court has rightly convicted the accused and it cannot be said that the learned Trial Court had reconstructed a story different from the one propounded by the prosecution.
ii. That the daughter of the accused in her cross-examination had admitted that the purchase price of the Fiat Car (Rs.1,47,000/-) in her name was borne by her father i.e., the accused. Hence, the learned Trial Court has rightly taken the value of the car in statement B and Gautam Bora, the son of the accused was a student during the check period. The income of Rs.1,55,000/- claimed by the accused as the income of his son does not support with reasonable grounds to believe that the son of the accused had earned the above amount from his business during the check period. Therefore, the learned Trial Court has not done any error in its judgment. Moreover, the daughter of the accused could not produce her salary certificates in regard to her different services in different companies from 1986 to 1996. The investments in the name of the children and wife of the accused were done by the accused himself.
iii. That the learned Trial Court has considered the valuation of the house of the accused as Rs.9,63,000/- considering the valuation report submitted by Shri P.C. Konwar being the Architect and Registered valuer who had evaluated the building of the accused on the instance of the accused, although the said building was evaluated at Rs.12,99,425/- by the CPWD.
Page No.# 21/35 iv. That in the DA case against the accused, the burden is on the accused as the said facts are within the special knowledge of the accused as in DA case it is for the accused to account satisfactorily for the money/assets in his hand. The onus in this regard is on the accused to give satisfactory explanation.
v. The argument that salary and allowances should be considered from the inception of his service is entirely wrong. In DA cases, the income of the accused is considered during the period of the check period only. In this case, the check period is considered from 01.01.1980 to 27.07.1996. Hence, the salary and allowances prior to 01.01.1980 is not to be considered as the income of the accused.
vi. That the income from interest of deposits of the accused, the learned Trial Court observed that the computation sheet submitted by the accused under the head of income/receipts viz. land sale at Lakhimpur, interest from various deposit schemes, GPF withdrawal, encashment of KVPs etc, house rent and securities from tenants etc. are not reliable evidence to accept and consider the pecuniary resources allegedly accrued out of the aforesaid items in favour of the accused. Hence, the claim of the accused to consider interest from the deposits to the tune of Rs.45,883/- have not been considered by the learned Court.
vii. That the learned Trial Court has rightly decided that the accused was in possession of assets valued at Rs.6,12,511.23 which is in excess to his known source of income and passed a reasoned judgment and order dated 05.08.2008 on the basis of materials Page No.# 22/35 available on record and in accordance with the law which requires no interference.
7. PRINCIPLE OF LAW I. For a lawful conviction, under the provision of Section 13(1)
(e) read with Section 13(2) of the P.C. Act, 1988, the prosecution is required to establish the status of the accused of being a public servant. The prosecution must also establish the definite period during which, according to the prosecution the disproportionate asset is acquired. The prosecution bears the initial burden of proving that the accused acquired assets exceeding their know sources of income. This requires demonstrating the assets acquired and the individual verifiable income. Once the prosecution establishes prima facie cases, the burden shifts on the accused to prove plausible explanation for the excess assets. Thus, once the prosecution discharges its initial burden, Section 106 of the Evidence Act, 1872 comes into play shifting the burden to the accused to explain the alleged disproportionate assets. When the accused fails to explain the excess wealth, it completes the offence under Section 13(1)(e), however, suspicion or incomplete valuation cannot form the basis of conviction; the prosecution must provide concrete figures of incomes and assets. It is also well settled that there is need of careful examination of any purported income from unverified sources such as gifts or informant loans etc.
8. FINDINGS OF THIS COURT:
I. Now coming to the case in hand, from the prosecution Page No.# 23/35 materials it is seen that in terms of the charge sheet, after giving benefit of 10%, the disproportionate asset was calculated at Rs.4,69,507 for the said period i.e., from 01.01.1980 to 27.06.1996. The prosecution in its charge sheet prepared four charts, namely, Chart A, Chart B, Chart C & Chart D, which will be dealt at a later part of this judgment. It is important to note that the prosecution in Chart C included an amount of Rs.3,00,923 and an amount of Rs.86,500, incomes of the daughter and son of the accused and also clubbed the assets of these two persons to the asset of the accused and their expenditure for the said period. However, the learned Special Judge while calculating disproportionate income of the accused, excluded the incomes of the sons and daughters but included their assets to the assets of the accused. To be precise, the Fiat Car was registered in the name of the daughter and PW-17 from which according to the prosecution the vehicle was purchased deposed that the value of the car was received from the accused on behalf of his daughter and there is no other evidence from the prosecution side that the accused spent the money for purchasing the car. The prosecution though considered rental income of the accused and withdrawal of GPF, however, the learned Trial Court excluded the same and thus increased the amount of disproportion by more than three lakhs. Thus it seems that the learned Trial Court took up a new prosecution story different from the projection made by the prosecution.
II. To be more precise, a comparison can be made in the following manner to get clarity.
Page No.# 24/35 STATEMENT A (Assets at the beginning of the check period on 01.01.1980) Calculation made by CBI, Calculation made by the in charge sheet learned Trial Court Rs. 2,12,349 Salary from 09/04/62 to 13/6/69 Rs.51,437/-
Pay & allowances from Rs36,181/- considered by 13/06/69 to 31/12/79 trial court. Excluding 1/3rd considered expenditure Rs. 2,12,349 + Rs.36,181 = Rs.2,48,530 - 1/3rd Rs.2,48,53 = 2,48,530- 82,843 = 1,65,687 STATEMENT B (Assets at the end of the check period on 27.07.96) Calculation by CBI in Calculation made by the charge sheet learned Trial Court Rs. 21,00,760/- Rs. 18,23,147/-
Trial Court considered
following items as assets of
accused (Ext 4 Inventory
report)
Vespa scooter belonging to
son Gautam Bora
Rs.26,000/-
Fiat Car belonging to
Page No.# 25/35
daughter Olee Bora
Rs.1,47,000/-
Deducted Rs.61,500/-
NSC/KVP belonging to
daughter Olee Bora.
STATEMENT C (Income and other receipts during check period 01.01.1980 to 27/07/1996) Calculation by CBI in Calculation made by the charge sheet learned Trial Court Rs. 21,82,656/- Rs.9,86,785/-
Excluded Rs. 3,46,830/- House rent Rs.1,75,600/- Withdrawal from GPF Rs.34,000/- Loan from Brother in Law Rs.3,00,923/- salary of daughter Olee Bora Rs.86,500/- salary of son K.P. Bora.
Rs.26,024/- interest from deposit.
STATEMENT D (Expenditure during the period of check Page No.# 26/35 1/01/1980 to 27/07/1996) Calculation by CBI in Calculation made by the charge sheet learned Trial Court Rs. 6,28,102/- Rs.3,18,489/-
Excluded Rs.1,02,864- 1/3rd salary of daughter Olee Bora Rs.28,533/- 1/3rd salary of son K.P. Bora Rs.23,502/- maintenance of building Rs.32,700/- Educational expenses Rs.41,200 personal expenditure of daughter Olee Bora Rs.45,000/- personal expenditure of son K.P. Bora.
Finally Trial Court
considered Rs.9894/-
under statement D.
Computation disproportionate assets after 10% benefit Calculation by CBI in Calculation made by the charge sheet learned Trial Court Page No.# 27/35 Rs. 4,69,507/- Rs.6,12,511/-
III. Thus from the aforesaid, it is clear that the learned Trial Court has taken out a new story taking clue from the defence, however, it is well proposition of law that prosecution is first to satisfy a prima facie case to shift the burden on the defence. Yet another aspect of the matter is that the inclusion of the assets of daughter and son to calculate the disproportionate asset, however, there is no allegation of any benami transaction by the prosecution. In the considered opinion of this court, Mr. Bharali is correct in arguing that in absence of any allegation against the wife, son and the daughters that they are holding the property of the accused, more particularly, when the prosecution itself has considered their income, it is the prosecution who is to discharge its burden of proving beyond reasonable doubt that the wife son and daughters are benamidar of the accused, which is not there in the present case. The sell in respect of the Fiat Car in the backdrop of evidence of PW-17, the burden was upon the prosecution that such transaction was a benami transaction.
IV. In this regard, though it concluded that all the moneys, which are shown in the name of the wife, the son and the daughters belong to the accused, however, the evidence and the materials recorded in the previous paragraph clearly shows that it will be difficult to hold the accused guilty of the charge, so far relating to the income and Page No.# 28/35 asset of the accused inasmuch as there is a presumption in law that person who purchases the property and stands in its name, is the owner of the same. Such presumption can be demolished by projecting and proving that the aforesaid transactions were benami transactions, in the name of the accused husband and that the wife, son, and daughters, in whose name, the property stands, are not the real owner, but only a benami. The prosecution is burdened heavily in this regards. However, as recorded hereinabove, the prosecution had failed to discharge its burden.
V. Now coming to the argument as regards valuation of the building. The valuation of the building was considered by the prosecution at Rs.11,04,208. PW-8 the Executive Engineer CPWD, admitted during his cross examination that the building was not constructed as per CPWD specification and it is the owner who can say about actual cost of the building. According to this witness the construction started in the year 1981 and completed in 1995. He also deposed that the team consisted another Assistant Engineer and the said member, in his report made a deduction of one lakh below the specification of CPWD. The PW-9 stated that valuation is made as on December 1995 and as per Exhibit-9 report construction was started in 1980 and completed in December 1985 and this witness did the valuation on the basis of PWD rate and that exhihit-9 was not prepared on the basis of actual cost. Another valuation report (Exhibit-8) was made in the year 1995 for declaration of the valuation of the building for the purpose of Insurance and the learned Trial Court considered the valuation of the building at Rs.9,63,000 in terms Page No.# 29/35 of Exhibit-9. Thus in the considered opinion of this court, there is no cogent material by the prosecution to arrive at the valuation so determined and valued in the year 1995, construction of which, as per the prosecution evidence started in the year 1981. In the considered opinion of this court valuation of the building arrived in the year 1995 for the purpose of declaration of value for insurance, cannot be relatable to the money spent in construction of the building during the check period. Thus, in the considered opinion of this court, the prosecution has failed to discharge their burden as regards the valuation of the house.
VI. Now, let this court look into the calculations based on the statement A, B, C & D of the charge sheet and the evidence adduced by the prosecution:
A. The assets at the beginning of the check period is incorporated in Statement A of the Charge sheet. It is on record that the Asset before beginning of the Check Period is added to the assets of the Check period, however, it should have been added to the income of the check period. As per statement A, asset at the beginning of the check period is Rs.1,41,566 and while calculating disproportionate asset this amount of Rs.1,41,566 is wrongly added to the assets of the check period. Thus disproportionate assets is increased double fold and resulted in Rs. 2,83,132. Thus, the income/assets during pre check period i.e., w.e.f 9/04/62 to 31/12/79 (at the beginning of check period) is Rs.2,63,786/- (Rs.2,12,349 + Rs.51,437) and 1/3 rd of Rs.2,63,786/- is Rs.1,75,857/- which should have been added to income. It is also Page No.# 30/35 seen that there is non-inclusion of the salary of the accused from the inception of his service 13.06.1961 to 12.06.1969. The evidence of PW-13 and PW-22 and the explanation given by the accused in his statement recorded under section 313 Cr.P.C (question No.26) and the evidence of the accused as DW-1 and supporting evidence i.e., exhibit-38, 39, 40, 41, Exhibit-C,D and Exhibit-R, clarifies that the salary shown in the exhibit-39 is Rs.51,437 and 1/3 rd of the same is Rs.34,929 and therefore, such amount ought to have been added to the assets at the beginning of the said period which would have reduced the assets by Rs.34,929., B. Now coming to the Statement B i.e., Assets at the close of the check period, it is seen that the valuation of the building formed the basis of the alleged disproportionate assets. In the statement B, at serial No.1 valuation of the building was considered as Rs.11,04,208/- as per CPW rate, however, the PW-8, the Executive Engineer in his cross examination deposed that there may be variation in the cost of construction depending upon design etc and the building in question was not constructed as per CPWD specification. The Trial court accepted the valuation to be Rs.9,63,000/- based on evidence of PW-5 and exhibit-9 and according to this witness, the construction started in the year 1982 and completed in 1985 and exhibit-9 was not based on actual cost but on state PWD rate. As per the evidence of the defence, the cost of the building was Rs.8,00,000/-. Even if, the value is accepted to be Rs.9,63,000/- then also, the asset will be reduced by Rs.1,41,208/- in the charge sheet.
Page No.# 31/35 C. Now, let this court consider the Statement C, which is the Income and other receipts during the period of check. The evidence of PW-7, PW-10 and the explanation given by accused in his statement recorded under section 313 Cr.P.C, more particularly, to the question No.22 and 48 and the evidence of DW-1 and DW-5, read with exhibit-26, 28, 30 & 32, it is seen that an amount of Rs.1,512/- (interest earned from investment in STDR) was not taken into consideration while preparing statement C (exhibit-96). Secondly, from the evidence of PW-7, PW-10, PW-22 and explanation given by the accused in its statement recorded under section 313 Cr.P.C and also the exhibit-25, 27, 29 and 31, it is seen that interest earned from investment in STDR to the tune of Rs.2536/- was not taken into consideration. Similarly, from the evidence of PW-18 and evidence of DW-1 and Exhibit-87, it is seen that survival bonus paid on 26.06.1992 of Rs.7338/- was not considered. Similarly, an interest deposit of Rs.34,497/- in respect of passbook No.126539 was not considered and thus, if the aforesaid calculation is added, the income during the said period would have been Rs.22,28,539/- instead of Rs.21,82,656 as alleged. Thus, there is a difference of Rs.45,883 which is required to be deducted from the disproportionate assets.
D. As regards statement D which is a statement of expenditure during the period of check, is stated to be Rs.6,28,102/-. In statement D, in respect of Sl no 7, (Educational expenses of Rs.32,700), against Sl No.9 (for personal expenses of Olee Bora to the tune of Rs.41,200) and against Sl No.10, Personal expenses of K.P. Bora to the tune of Rs.45,000/-) the prosecution did not laid any Page No.# 32/35 evidence and therefore, such amounts are required to be deducted from the expenditure being not supported by evidence. That being the position, the expenditure should come down to Rs.5,09,202/- and not Rs.6,28,102/-.
VII. From the aforesaid discussions, what is gathered is that the assets held at the beginning of the said period is Rs.175857, assets held on 27.07.1996 (the end of the check period) is Rs.19,59,552/-, the income and other receipts during the period of check is Rs.22,28,539 and the expenditure during the check period is Rs.509202/- and therefore, the disproportionate asset is at Rs.64,358. The 10% of total income and other receipts shall be Rs.2,22,853/- and therefore, the disproportionate asset shall be much less than 10% of income during the check period and to be precise, it should be 2.88%.
VIII. To summarize, what is seen is that the check period was with effect from 01.01.1980 to 27.07.1996 i.e., for almost 16 years. Therefore, the learned trial court ought to have taken into account that over such a long period of time there is inflation and natural progression which affected the value of the building, inasmuch as the value of the building was estimated in the year 1996 and the construction was completed in 1985 and started in the year 1980. At the same time, prior to the said period, the petitioner served in the department for more than 15 years. Therefore, there should be more dynamic approach in the given facts of the present case considering an individual's income and assets over the span of more than 3 decades.
Page No.# 33/35 IX. Be that as it may, in the backdrop of the discussions made hereinabove and the reasons recorded, this court is of the unhesitant view that though assets possessed by the appellant were in excess of income available to him but the excess is comparatively small and is less than 10% of the total income. That being so, this court is of the opinion that the learned trial court could not have held that the assets found in the possession of the appellant were disproportionate to his known sources of income and thus it is unhesitant view of this court that in the given facts of the preset case the learned Special Judge committed an error in raising the presumption under Subsection 3 of Section 5 and convicting the appellant.
X. Yet another aspect of the matter is that an amount of Rs. 1,00,000/-advanced to PW-21, the said witness in his cross- examination deposed that he took loan Rs. 50,000/- from Golap Prasad Bora as Ext. 1, out of Rs. 1,00,000/- and that the loan amount was repaid prior to the check period and therefore, two situations were possible i.e. the loan advanced by the appellant was Rs. 50,000/- and or that Rs.50,000/- was returned prior to the cheque period. Yet another aspect of the matter in this regard is that, the PW21 though did not support the case of the prosecution, however, such witness was neither declared as hostile witness nor he was further examined by the prosecution. Therefore, in this context the benefit of doubt should be given to the appellant by holding that the loan to PW1 was Rs. 50,000/- and the same was returned prior to the cheque period.
XI. As regards the cost of an almirah with ladies garments, in Page No.# 34/35 the charge-sheet (Ext. 19), the value is stated to be Rs. 20,000/-, however, in the Ext. 4 inventory against serial No. 4, is considered as Rs. 2,000/-. The PW-22 in his cross-examination admitted that in statement B, the almirah containing ladies garments is recorded as Rs. 20,000/- against serial No. 13. At the same time, in Ext. 4 (investor), the amount of ladies garment has been shown separately. He further deposed that the statement B of Ext. 2 (at serial No. 30) under one almirah containing ladies garments, shown as Rs. 20,000/- is not correct. Thus it is seen from the Ext. 4 inventory and statement B that in Ext. 4 amount is shown to be Rs. 2,000/ and in the statement B, at serial No. 30 is shown to be 20,000/- and the amount is considered as 20,000/- by the learned trial court below ignoring the Ext. 4 inventory and the deposition of PW22. Accordingly, the actual amount in respect of said head should have been Rs. 2,000/- and thus additional amount of Rs. 18,000 was added and same is liable to be deducted.
XII. This court cannot be unmindful of the settled proposition of law that though Section 106 of the Evidence Act can be made applicable, once the prosecution discharges its burden, as recorded hereinabove, however, it cannot be said that the accused is bound to prove his innocence beyond all reasonable doubt. It is well settled that what the accused need to do is to bring out preponderance of probability.
XIII. It is true that there is a presumption under Section 13(1)(e) however, at the same time such presumption can be made applicable when the foundational fact is laid by the prosecution. In the Page No.# 35/35 considered opinion of this court based on the discussion recorded hereinabove, this court is of the unhesitant view that the prosecution has failed to discharge its burden that the property of the accused during the said period was disproportionate to know source of income as required under Section 13(1) of the PC Act. In the considered opinion of this court, the appellant has also been able to discharge his persuasive burden of proof on the balance of probabilities from the evidence of the prosecution and also from the evidence of the defence.
XIV. Accordingly, in the totality of the matter and for the reasons recorded hereinabove, this court is of the view that the appellant is entitled for acquittal. Accordingly, the impugned judgment of conviction dated 05.08.2008, passed by the learned Special Judge, CBI, Assam, Guwahati in Special Case No. 85/2004 (Old case No. Spl. 4(c) 2000) set aside. The bail bond stands discharge.
XV. TCRs returned back.
JUDGE
Comparing Assistant