Jharkhand High Court
Daya Nand Prasad Kashyap @ Dayanand ... vs State Of Bihar Through C.B.I., S.P.E. on 4 April, 2008
Equivalent citations: [2008(2)JCR617(JHR)], 2008 CRI. L. J. 3354, 2008 (2) AIR JHAR R 713 (2008) 66 ALLINDCAS 744 (JHA), (2008) 66 ALLINDCAS 744 (JHA)
Author: D.G.R. Patnaik
Bench: M. Karpaga Vinayagam, D.G.R. Patnaik
ORDER D.G.R. Patnaik, J.
1. Challenge in this appeal filed under Section 11(1) of the Criminal Law (Amendment) Ordinance, 1944, is against the order dated 12.8.2004 passed by the Special Judge-VII, CBI, Ranchi in Civil Misc. Case No. 146 of 1996 under Section 5 of the Ordinance, whereby ad-interim order of attachment dated 30.8.1996 in respect of certain properties mentioned in the order, was made absolute.
2. The appellant No. 1 along with others was facing trial in connection with RC Case No. 41-A of 1996 and eight other cases instituted against him on charges for the offences under Sections 409, 419, 420, 467, 468, 471, 477 and 120B/34 of the Indian Penal Code read with Sections 13(11) and 13(1)(C) of the Prevention of Corruption Act, 1988.
3. The C.B.I., in course of investigation, found that the appellant No. 1, in conspiracy with the other co-accused persons who were Government Servants and officials in the Animal Husbandry Department of the State Government, had fraudulently withdrawn several lakhs of rupees during the years 1991-1996, on the basis of fake allotment letters issued by the Directorate of Animal Husbandry Department of the State Government and on the basis of fake supply documents showing supply of medicines through his Firm namely, Baishnav Enterprises without making any supply of the medicines at all. The fraudulent withdrawal of Government money In RC Case No. 41-A of 1996 was assessed to the extent of Rs. 4,79,685/-. The claim of the C.B.I, is that by means of the fraudulently withdrawn Government money, the appellant No. 1 had acquired huge movable as well as immovable assets in his name and also in the name of his wife appellant No. 2, at different places including Ranchi.
4. On an application filed by the C.B.I, under Section 3 of the Criminal Law (Amendment) Ordinance, 1944 before the District Judge for attachment of the properties belonging to the appellants situated at Ranchi and specified in the Schedule to the application, an ad-interim order of attachment was passed by the District Judge on 30.8.1996. Simultaneously, notices were also issued to the appellant No. 1 directing him to appear and show-cause as to why ad-interim order of attachment should not be made absolute.
5. In response to the notice, appellant No. 1 appeared and filed his objection. The appellant No. 2 also appeared and filed her objection. Both the objectors claimed that the properties which were made subject to attachment, were self-acquired properties acquired almost 22 years prior to the alleged period of fraudulent transaction. In respect of the property referred to as Kashyap Complex, the appellant No. 2 had specifically claimed it to be her own personal property acquired in the year 1981-1982 out of her own personal income and savings and such acquisition having no concern whatsoever with the income of her husband or from the business of her husband's Firm M/s. Baishnav Enterprises.
6. In course of inquiry into the objections, one witness was examined on behalf of the applicant while as many as seven witnesses including the appellant No. 1 and appellant No. 2 were examined on their behalf.
7. On evaluating the evidences adduced, the learned Court below recorded its findings that the testimonies of the witnesses adduced by the objectors do not inspire confidence and reliability on account of the same being inconsistent and contrary to each other and lacking support by way of documentary proof in material particulars both in respect of the income purportedly earned by the appellant No. 2 as separate income and the source of the money spent for purchase of land and for carrying out the building construction. On the basis of such findings, the learned Court below dismissed the objection raised by the appellants/opposite parties and by the impugned order, proceeded to make the ad-interim order of attachment dated 30.8.1996, as absolute.
8. The appellants have assailed the impugned order and findings recorded therein, as being totally perverse and against the weight of evidences on record. Learned Counsel for the appellants/opposite parties would argue that, as per the allegation of the C.B.I., it was during the period of 1991-1996 that substantial amount of Government money was misappropriated by the accused persons by practicing fraud and it was this money which was utilized for acquiring the properties sought to be attached in this case. Yet, the C.B.I, had neither brought any relevant document nor adduced any evidence in support of its contention.
9. On the contrary, evidences adduced by and on behalf of the appellants in support of their objections to the attachment would confirm that both the properties were acquired in the year 1981 and the constructions were completed in the year 1990 and as such, it could not be claimed by the respondent that the properties sought to be attached, were acquired by any allegedly misappropriated Government money.
10. As against this, learned Counsel for the respondent CBI would raise a preliminary objection with regard to the maintainability of this appeal on the ground that appeal under Rule 11(1) of the Criminal Law (Amendment) Ordinance, 1944, could be filed against the order passed either under Section 4 or Section 6 or against the order passed under Sections 8 and 9 of the Ordinance and the limitation of filing such appeal is 30 days from the date of the order. In the present case, the ad interim order of attachment was passed on 30.8.1996, against which no appeal was filed. Whereas no appeal would lie against the impugned order dated 12.8.2004, which is an order, passed under Section 5 of the Ordinance.
This argument of the learned Counsel for the respondent cannot be accepted.
11. Section 11 of the Criminal Law (Amendment) Ordinance, 1944, which provides for appeal, reads as under:
11. Appeals.-(1) The [State Government or, as the case may be, the Central Government] or any person who has shown cause under Section 4 or Section 6 or has made an objection under Section 4 or has made an application under Section 8 or Section 9, if aggrieved by any order of the District Judge under any of the foregoing provisions of this Ordinance, may appeal to the High Court within thirty days from the date on which the order complained against was passed. ...
It would be manifest from the above that any person who has shown cause under Section 4 or Section 6 or has made objection under Section 4, if aggrieved by any order of the District Judge under any of the provisions of the Ordinance, may appeal to the High Court within thirty days from the date on which the order complained against was passed. The terms "under any of the provisions of the Ordinance" would include provisions under Section 5 also.
12. Admittedly, on receipt of the notice issued by the District Judge under Section 4(2) of the Ordinance, both the appellants had appeared and filed their respective objections against the order of attachment. The impugned order under Section 5 of the Ordinance was passed after the objections were received, and considered. The right to appeal against the impugned order is therefore available to the appellants, under Section 11 of the Ordinance.
13. Further argument of the learned Counsel for the respondent is that the evidence adduced by the appellants were rightly discarded by the learned Court below, since no supportive evidence by way of relevant documents relating to the income derived from the purported sale of agricultural produce or from the dairy business, was produced by the appellants. On the other hand, evidence of the witness on behalf of the C.B.I, confirms that the properties mentioned in the Schedule to the application, belongs actually to the appellant No. 1 which he had acquired in the name of his wife (appellant No. 2) by means of fraudulently withdrawn Government money.
14. To repeat, in essence, the ground advanced by the appellants is that the findings of the learned Court below rejecting the objections raised by the appellants against the attachment, is perverse since, evidence adduced by the appellants in the inquiry were not evaluated in proper perspective and without considering the fact that the onus was upon the C.B.I, to prove that the properties were acquired by means of alleged fraudulently withdrawn Government money.
15. In this context, it would be worthwhile to refer to the provisions of Section 3 of the Criminal Law (Amendment) Ordinance, 1944, which reads as under:
3. Application for attachment of property.-[I) Where the [State Government or, as the case may be, the Central Government], has reason to believe that any person has committed (whether after the commencement of this Ordinance or not) any scheduled offence, the [State Government or, as the case may be, the Central Government] may, whether or not any Court has taken cognizance of the offence, authorize the making of an application to the District Judge within the local limits of whose jurisdiction the said person ordinarily resides or carries on business, for the attachment, under this Ordinance of the money or other property which the [State Government or, as the case may be, the Central Government] believes the said person to have procured by means of the offence, or if such money or property cannot for any reason be attached, or other property of the said person of value as nearly as may be equivalent to that of the aforesaid money or other property.
(2) The provisions of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall apply to proceedings for an order of attachment under this Ordinance as they apply to suits by the Government.
(3) An application under Sub-section (1) shall be accompanied by one or more affidavit, stating the grounds on which the belief that the said person has committed any scheduled offence is founded, and the amount of money or value of other property believed to have been procured by means of the offence. The application shall also furnish-
(a) any information available as to the location for the time being of any such money or other property, and shall, if necessary, give particulars, including the estimated value, of other property of the said person;
(b) the names and addresses of any other persons believed to have or to be likely to claim, any interest or title in the property of the said person.
It would be manifest from the above provisions of section that application for attachment of the properties of any person can be made only,
(a) where the concerned authority has reason to believe that the person has committed any scheduled offence, and
(b) that the property sought to be attached was, procured by the said person by means of the offence.
16. The petition filed by the C.B.I, under Section 3 of the Criminal Law (Amendment) Ordinance, 1944 before the learned Court below affirms that investigation into the allegation in the FIR registered as RC Case No. 41-A of 1996 discloses that the appellant No. 1, in conspiracy with the other co-accused persons, defrauded the Government Exchequer of Rs. 4,79,685/- during the period of 1991-1996 and that, he was also involved in similar eight other cases relating to fraudulent withdrawal of Government money in connivance with the officials of Animal Husbandry Department.
17. The investigation also reveals that the appellant No. 1 had acquired huge movable as well as immovable assets in his name and also in the name of his wife (appellant No. 2) and daughter and that, though the holder of the properties specified in Annexure-2 to the application, was the wife of the appellant No. 1, but she is not an earning member, nor were the properties acquired by her and that, she is simply a name lender and further, that neither the accused/appellant No. 1 nor his wife (appellant No. 2) accounted for the properties from known sources of their Income. On being satisfied that there exists a prima facie ground, the learned District Judge promptly passed an order of ad-interim attachment of the properties of the appellants.
The onus therefore, lies on the appellants to satisfy the Court that the properties sought to be attached, were not acquired by means of any fraudulent withdrawal of Government money, but were acquired by money drawn from lawful sources declared by them.
18. In their evidence, the appellants have claimed that the properties referred to as a Kashyap Complex and Kashyap Shopping Complex, are the personal properties acquired long prior to the year 1991. The appellant No. 2 has claimed that the land over which the aforesaid complexes were constructed, was purchased by her in the year 1981, by virtue of a Registered sale deed for a consideration of Rs. 25,000/-. She would also claim that the money for the purchase of the land was arranged by way of sale of her gold ornaments gifted to her at the time of her marriage and that, the consideration amount was not paid in lump-sum to the vendor, but in installments. She would also claim that she started construction on the land about three years after the purchase and completed the construction by the year 1990. Though she claims that she was an income tax assessee and that, she had obtained loan from her tenant C.B.S.E. and also from the Bank for completing construction of three storied building, but she has neither produced any income tax returns or building plan approved by the municipal authorities or statement of total expenditure incurred for the construction or after the assessment by the Tax Authorities in respect of the valuation of the properties. Significantly, the witness No. 5 claims that the initial structure of the building was confined only to the ground floor and the second and third floor was constructed and completed by him by 1991. The witness Nos. 1, 2 and 3 who happen to be her own paid servants though attempt to offer support to the claim of the appellant No. 2, but they are unable to specify the extent of land purchased, the amount of income derived purportedly from the dairy and agricultural business of the appellant No. 2. Witness No. 3 acknowledges that the dealings with the Animal Husbandry Department in the matter of supply of medicines by appellant No. 1 had commenced in 1989.
19. Witness Nos. 4 and 5 claim to be petty contractors and skilled labourers, who were engaged by the appellant No. 2 for laying floor tiles and completing construction. Witness No. 5 admits that the construction continued even till 1990. Moreover, neither of these two witnesses specify the amount of payment received by them for executing the work. The appellant No. 1, who had examined himself as witness No. 7, admits that advance amount was obtained from the C.B.S.E., but contradicts the appellant No. 2 by claiming that the money was in fact given to him under an agreement executed with the C.B.S.E. by him. He has thus acknowledged the ownership of the properties. Furthermore, he acknowledges that as proprietor of M/s. Baishnav Enterprises, he had entered into business dealings with the Animal Husbandry Department for supply of medicines though his Firm since 1989.
20. As stated above, it is for the appellants to prove convincingly by adducing primary evidence including all relevant documents that the properties were procured from money obtained through lawful sources. In this, the appellants have failed and in absence of such proof, the presumption would be that the properties were procured by means of the offence. The evidence adduced by the appellants are inconsistent and do not inspire confidence and as rightly observed by the learned Court below, the same are unreliable. Under such circumstances, the learned Court below has rightly recorded its findings that the objections raised by the appellants against the attachment of the properties are thoroughly unsatisfactory and cannot be accepted.
21. We do not find any merit in this appeal. Accordingly, this appeal is dismissed.
M. Karpaga Vinayagam, C.J.
22. I agree.