Sikkim High Court
Laxmi Prasad Tewari vs State Of Sikkim on 11 August, 2014
Author: S. P. Wangdi
Bench: S. P. Wangdi
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
JUDGMENT
S.B. Crl.A. No.01 of 2013 Shri Laxmi Prasad Tewari, S/o Late Nandalal Tewari, R/o Sichey Busty, Gangtok. ... Appellant versus The State of Sikkim (Vigilance Department) ... Respondent CORAM HON'BLE MR. JUSTICE S. P. WANGDI, JUDGE DATE OF JUDGMENT : 11-08-2014 For Appellant : Mr. A. Moulik, Senior Advocate with Ms. K. D. Bhutia, Mr. B. K. Gupta, Mr. Ranjit Prasad and Mr. Pujan Kharka, Advocates.
Mr. Laxmi Prasad Tewari in person.
For Respondent : Mr. J. B. Pradhan, Public Prosecutor, Mr. Karma Thinlay Namgyal, Additional Public Prosecutor with Mr. S. K. Chettri, Mrs. Pollin Rai, Assistant Public Prosecutors and Mr. D. K. Siwakoti, Advocate.
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By this Appeal the Appellant seeks to assail the judgment dated 24-12-2012 passed by the Learned Special Judge, Prevention of Corruption Act, 1988, East and North Sikkim at Gangtok in S. T. (Vig.) Case No.4 of 2004 by which the Appellant was found guilty of the offence under Section 13(1)(e) of the Prevention of Corruption Act, 1988 (in short the 'Act of 1988') corresponding to Section 5(1)(e) of the Prevention of Corruption Act, 1947 (in short the 'Act of 1947') punishable under Section 13(2) of the Act of 1988 corresponding to Section 5(2) of the Act of 1947 and was accordingly convicted to undergo simple imprisonment for one year and to pay a fine of ` 10,000/- (Rupees ten thousand). In default of payment of the fine, to undergo further simple imprisonment for six months.
2. The factual matrix of the case relevant for the purpose of this Appeal is that based upon a source information, case under Section 13(2) read with Section 13(1)(e) of the Act of 1988 corresponding to Section 5(2) read with Section 5(1)(e) of the Act of 1947 was 3 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim registered as RC-14/97 dated 15-10-1997 against the Appellant, a former Secretary-cum-Principal Chief Engineer, Power Department, Government of Sikkim for having allegedly acquired assets disproportionate to his known sources of income while holding office in various capacities as a public servant in his own name and 'benami' in the names of his dependants by misusing his position as such public servant.
3. Upon investigation, it was revealed that the Appellant was the only earning member of his family and had held the following posts until he was dismissed from service on 30-10-1998:-
(i) Assistant Engineer w.e.f. 16-08-1966;
(ii) Executive Engineer w.e.f. 28-10-1974;
(iii) Superintending Engineer w.e.f. 28-04-
1977;
(iv) Additional Chief Engineer w.e.f. 23-05- 1978;
(v) Chief Engineer w.e.f. 01-09-1981;
(vi) Chief Engineer-cum-Secretary w.e.f. 18- 11-1983; and
(vii) Principal Chief Engineer-cum-Secretary w.e.f. 02-03-1988.
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4. The check period was taken as 01-04-1986 to 31-03-1997. The beginning of the check period was fixed as 01-04-1986 as no evidence in the form of records pertaining to his bank accounts or details of salary prior to that date could be collected. Apart from the bank balance of the Appellant and his wife at the beginning of the check period, the Appellant had been given the benefit of ` 9,630/- as cash in hand on 01-04-1986 which was equivalent to his five months' net salary drawn by him at that time. No further investment was found to have been made by the Appellant after March, 1997 and, therefore, this date was considered as the end of the check period.
5. The statement of assets owned by the Appellant and his family members at the beginning of the check period, assets owned by them at the close of the check period, their income and other receipts during the check period and the expenditure incurred during that period were detailed in Statements 'A', 'B', 'C' and 'D' respectively in the charge-sheet which are summarised as under:-
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Laxmi Prasad Tewari vs. State of Sikkim
(a) Assets at the close of the Statement-B ` 59,58,966-58 period of check
(b) Less : Assets at the beginning Statement -A ` 1,13,852-00 of the period of check
(c) Assets acquired during the (a) - (b) ` 58,45,114-58 period of check
(d) Add : Expenditure on items Statement - D ` 16,86,597-06 other than those in Statement B
(e) Total assets during the check (c) + (d) ` 75,31,711-64 period : (c) and (d) above
(f) Less : income from known Statement - C ` 35,75,903-50 sources during the period of check
(g) Assets disproportionate to (e) - (f) ` 39,55,808-14 known sources of income
6. The Appellant was thus having found to be in possession of assets disproportionate to his known sources of income to the tune of ` 39,35,808.14, i.e., 110.72% in excess, was sent up for trial under Sections 13(2) with Section 13(1)(e) of the Act of 1988 corresponding to Section 5(2) read with Section 5(1)(e) of the Act of 1947.
7. When the charge framed under the aforesaid provisions were read over to the Appellant, he pleaded not guilty and claimed to be tried.
8(i). The Learned Special Judge upon consideration of the materials on record, the evidence and the submissions 6 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim made on behalf of the parties found the Appellant to have held the following:-
(a) Assets at the close of the Statement - B ` 54,18,182-22 check period
(b) Less : Assets at the Statement - A ` 1,13,852-87 beginning of the check period
(c) Assets acquired during the (a) - (b) ` 53,04,329-35 check period
(d) Add : Expenditure during Statement - D ` 8,79,118-90 the check period
(e) Total assets during the (c) + (d) ` 61,83,448-25 check period : (c) and (d) above
(f) Less : income from known Statement - C ` 40,04,572-73 sources
(g) Disproportionate Assets (e) - (f) ` 21,78,875-52
(ii) Thus from the above disproportionate assets which, as per the prosecution was ` 39,55,808.14, was reduced to ` 21,78,875.52. On this finding, the Learned Special Judge held the Appellant guilty of the aforesaid charges and was accordingly sentenced to the extent of the punishment already indicated above.
(iii) It is pertinent to note that the case against the Appellant had proceeded on the assumption that the entire assets in question were the Appellant's own although much of those stood 'benami' in the names of his wife and 7 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim his four daughters, a position that was not contested on behalf of the Appellant. The case, therefore, requires consideration in the backdrop of such admitted position of the parties.
9. Before this Court the Appellant, while assailing the impugned judgment, did not question the entire findings on (i) the assets at the beginning of the check period; (ii) assets owned by him at the close of the check period; (iii) income and (iv) expenditure during that period but, restricted himself to some of those items which were said to have not been considered in its proper perspective and were contrary to and perverse to the evidence available on the record.
10(i). Mr. A. Moulik, Learned Senior Advocate, appearing on behalf of the Appellant, submitted that there were a number of assets which the prosecution had failed to consider as assets at the beginning of the check period. As per him, even the Learned Special Judge failed to take those into consideration overlooking glaring evidence appearing in the records. The assets said to have been so left out deserving to be added to Statement 'A', i.e., 8 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim assets at the beginning of the check period, were as under:-
(a) Value of Jorethang building at the beginning of the check period - ` 3,25,000/-.
(b) Rental income from Jorethang building before the check period - ` 1,03,950/-
(c) Fixed deposits and NSCs purchased before the check period - ` 1,15,000/-.
(d) Gold and diamond jewellery at the beginning of the check period - ` 1,75,600/-
(e) TV, VCR and other household gadgets and items at Sichey house - ` 52,000/-.
(ii) Thus, the total assets at the beginning of the check period that had to be added was ` 7,71,550/- [i.e., sum total of ` 3,25,000/- + ` 1,03,950/- + ` 1,15,000/- + ` 1,75,600/- + ` 52,000/-]. Therefore, actual assets of the Appellant at the beginning of the check period ought to be ` 8,85,402.87 [i.e., ` 7,71,550/- + ` 1,13,852.87 (assets allowed by the Trial Court)].
(iii) It was next contended that out of the assets of the value of ` 54,18,182.22 found to have been in possession of the Appellant at the close of the check period in the impugned judgment as described under Statement 'B', the following were erroneously added 9 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim thereunder requiring deletion therefrom and deduction from the aforesaid amount found by the Learned Special Judge:-
(a) Alleged purchase of Magnum Multiplier Plus Scheme, 1993 - ` 10,30,000/-
(b) Value of furniture and other household items at Sichey house - ` 2,91,750/-
Therefore, as per the Appellant, the actual assets held by him at the close of the check period ought to have been ` 40,96,432.22 [i.e., ` 54,18,182.22 - ` 13,21,750.00].
(iv) On the income and receipts during the check period (Statement 'C'), it is submitted that the Learned Special Judge while accepting those to be valued at ` 40,04,572.73, had overlooked the following income:-
(a) Rent from Siliguri house during the check period
- ` 2,72,250/-
(b) Sale of gold ornaments during the check period
- ` 8,05,307/-
(c) Gift from grandfather to four granddaughters -
` 8,00,000/-
(d) Gift by grandfather to Archana to buy flat in Delhi - ` 3,00,000/-
(e) Loan from uncle and aunt, P. K. and Tika Tewari to buy flat in Delhi - ` 4,05,000/-
(f) Peerless income of Nirja Tewari during the check period - ` 43,314/-
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(v) It was submitted that the income left out by the Learned Special Judge from consideration in the impugned judgment amounted to ` 26,25,871/- [i.e., ` 2,72,250/- + ` 8,05,307/- + ` 8,00,000/- + ` 3,00,000/- + ` 4,05,000/- + ` 43,314/-]. Consequently, the actual income of the Appellant during the check period ought to have been ` 66,30,443.73 [i.e., ` 40,04,572.73 + ` 26,25,871].
(vi) Under Statement 'D' pertaining to expenditure during check period, the Learned Special Judge accepted it at ` 8,79,118.90, but, while arriving at that figure, the following were wrongly included:-
(a) Cost of Greater Kailash-II Flat - ` 5,50,000/-
(b) Refundable security deposit at Springdales School - ` 1,500/-
(c) Refundable security deposit at Delhi Public School - ` 1,500/-
(d) Refundable security deposit at La Martiniere for Girls - ` 2,000/-
Therefore, the correct expenditure of the Appellant during the check period under Statement 'D' ought to be ` 3,24,118.90 [` 8,79,118.90 - ` 5,55,000/-]. 11 Crl.A. No.01 of 2013
Laxmi Prasad Tewari vs. State of Sikkim
(vii) As per the Learned Counsel, from the above facts and circumstances, the sum of the assets, income and expenditure of the Appellant was in surplus of ` 26,86,095.48 against the disproportionate assets of ` 21,78,875.52 as found by the Learned Special Judge and that the case of the prosecution ought to have failed and the impugned judgment set aside.
11. Mr. J. B. Pradhan, Learned Additional Advocate General who is also the Public Prosecutor, in his submission while conceding that there were indeed certain errors as pointed out by Mr. Moulik, seriously disputed that the entire finding of the Learned Special Judge ought to be set aside since assets held by the Appellant would still be disproportionate to his known sources of income even after deduction of the assets said to have been (i) wrongly left out from the assets at the beginning of the check period, (ii) erroneously added to his assets at the end of the check period, (iii) those omitted from his income during the check period and (iv) included erroneously to his expenditure during that period. It was his submission that apart from these the Learned Special Judge had overlooked certain assets which ought to have 12 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim been included in the assets of the Appellant at the close of the check period under Statement 'B' and to his expenditure under Statement 'C' and, that it was permissible for this Court to correct those errors in the present Appeal considering the trite position that an Appeal is a continuation of the original proceedings.
12. Having broadly set out the parameters of the submissions on behalf of the parties, we may proceed to consider those with reference to the evidence on record confining ourselves only to those questions that are contentious set out already without going into the others as being unnecessary and irrelevant. We may deal with those in seriatim below:-
I. Assets to be added to Statement 'A'
(a) Value of building at Jorethang, South Sikkim, at the beginning of the check period - ` 3,25,000/-.
(i) It was the submission of Mr. A. Moulik, Learned Senior Counsel for the Appellant, that the value of this building at Jorethang, South Sikkim, ought to have been included in Statement 'A' pertaining to the Appellant's assets at the beginning of the check period as entry in 13 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim respect of this asset is found entered in Exhibit P-168 (collectively) being the "Declaration Form in respect of Assets and Liabilities of Government Servant in accordance with Rule 19 of the Sikkim Govt. Servants (Conduct) Rules, 1981" filed by the Appellant as a public servant in the capacity of Principal C.E.-cum-Secretary, Power Department, Government of Sikkim. That this building finds specific mention in the form for "House (Residential, Shops or other Buildings)" with the date of construction of the building entered as "83-84"
as a gift by the Appellant to his daughter, Bandana Tewari, on 30-12-1988. That this was an admitted position even as per the charge-sheet under Statement 'C', item no.(i) where it has been stated as "Profit from the sale of a 5-storied RCC building (total area of construction 6800 sft) constructed during 1983-84 at a cost of Rs. 3,25,000/- (these information as per property return,)" and that "The building was sold to Raju Agarwal, Jorethang in Dec., 1992 for Rs. 15,00,000/-". "Hence, net profit is Rs. 15,00,000 - Rs. 3,25,000/-" i.e., ` 11,75,000/-.
However, after deducting ` 3,25,000/- from Statement 'C', i.e., income and other receipts of the Appellant during the check period, it has not been added to Statement 'A' pertaining to assets at the beginning of the check period which the Appellant naturally would be entitled to.14 Crl.A. No.01 of 2013
Laxmi Prasad Tewari vs. State of Sikkim
(ii) I find considerable force in the submissions of Mr. Moulik as they are found clearly borne out by Exhibit P-168 (collectively), the declaration by the Appellant as a public servant and, by the very entries in the charge-sheet referred to above. That apart, I find that the oral evidence on record also substantiates the fact. In the cross-examination of P.W.36, the Investigating Officer (in short the 'I.O.'), we find the following deposition:-
"..........................................................
.................................... It is true that at page 3 of statement C item no.(i) of the charge sheet I had given a benefit of Rs: 11,75,000/- to the accused for the building which was sold to PW 10 for Rs: 15,00,000/- It is not a fact that I had to give the entire benefit of Rs: 15,00,0000/- to the accused person because the entire building including cost of expenditure was transferred to PW 10. .................................... In view of the fact that exbt.P-168 clearly spells out that the Jorethang building was acquired by the accused during 1983- 84 and clause 8 of exbt.P-168 relating to houses (residential , shops or other buildings) the properties has been shown gifted to Bandana Tewari on 30.12.1988. It is true that as per exbt.P-168 the investment of Rs: 3,25,000/- was made before the check period during 1983-84.
................................................" [underlining mine]
(iii) The fact that the Appellant was in possession of the building before the beginning of the check period, i.e., 01-04-1986, can also be reasonably inferred from the finding of the Learned Special Judge at paragraph 34 of 15 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim the impugned judgment wherein rental income earned by the Appellant from the building has been allowed from 01-
04-1986 to 31-12-1992. The fact that the Appellant was in possession of the building also before 01-04-1986, is admitted by P.W.36, the I.O., as will appear from the discussions that would follow on the next item. This is not contested on behalf of the State-Respondent and fairly conceded by the Learned Public Prosecutor. Therefore, the Appellant is entitled to be given the benefit of ` 3,25,000/- as the value of the Jorethang building in Statement 'A' of the charge-sheet as assets before the check period. The Learned Special Judge appears to have overlooked and did not consider this aspect while rejecting the claim for addition of ` 3,25,000/- on the ground that the Appellant had failed to discharge his burden to prove his assertion. This finding, in my view, is perverse and in clear disregard of the documentary evidence, Exhibit P- 168 (collectively) and the oral evidence in the records.
(b) Rental income from Jorethang building before the check period - ` 1,03,950/-
(i) It is submitted on behalf of the Appellant that he was also entitled to be given the benefit of the rental 16 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim income earned by him from the Jorethang building before the check period. In support of this, Mr. Moulik relied upon Exhibit P-168 (collectively) and the portion of the charge-sheet referred to earlier to emphasise that as the building was constructed in the year 1983-84, the Appellant was entitled to the rental income earned by him during the period prior to 01-04-1986 as income before the check period.
(ii) I find substance in this submission as this is an admitted position even by P.W.36, the I.O., as would appear from the portion of his evidence reproduced below:-
"..........................................................
.................................... It is true that as per exbt.P-168 the accused has declared that he has a 5 storied RCC building in plot no.1 Sector B of Jorethang which was constructed during 1983-84 and was rented out at the rate of Rs: 4950/- per month. It is true that I did not accept the said rent income from that building for the period before the check period as it was beyond the check period. It is true that at the rate of Rs:
4950/- per month rent incomes of the building from July 1984 to till 31.3.1986 i.e. for 21 months at the rate of Rs: 4950/-per month is Rs: 1,03,950/-. It is true that I did not give this benefit to the accused because the said period was a period not within the check period. ........................
......................................................."17 Crl.A. No.01 of 2013
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(iii) It is not understood as to why such glaring evidence was not considered by the Learned Special Judge and chose to allow the rental income only from the beginning of the check period. In my view, the Appellant would certainly be entitled to the benefit of the rental income for the period of 21 months commencing from July 1984 to 31-03-1986 which amounts to ` 1,03,950/- as admitted by the I.O. This amount thus stands added to the asset of the Appellant held by him before the check period under Statement 'A'.
(c) Fixed deposits and NSCs purchased before the check period - ` 1,15,000/-
(i) It is submitted by the Learned Senior Counsel that the Learned Special Judge has overlooked the following deposits held in the name of the Appellant, in the name of his wife and his daughters as mentioned in the relevant column of his declaration as government servant, Exhibit 168 (collectively):-
(i) Term Deposit with S.B.I. No.TA-188563 for ` 50,000/- dated 17-03-1983;
(ii) Term Deposit with SBI, Gangtok being No.TC/457148 for 50,000/- dated 24- 04-
1984;
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(iii) National Savings Certificate being Certificates No.F/8 956094 and 956095 for ` 10,000/- dated 12-12-1985; and F/8 956795 dated 24- 03-1986 for ` 5,000/-, i.e., ` 15,000/- obviously accruing prior to the check period which begins from 01-04-1986.
(ii) On a careful consideration of the impugned judgment it appears that these have been rejected by the Learned Special Judge as income of the Appellant before the check period in Statement 'A' solely on the ground that the Appellant had failed to produce the certificates of the term deposits receipts to prove the authenticity of the deposits. Even Exhibit P-168 (collectively), the assets and liabilities declaration form, was not accepted as a reliable evidence by taking judicial notice of the fact that when such declarations are required to be submitted on an yearly basis, Exhibit P-168 (collectively) extended for a period commencing from the year 1968 to 1989. In my view, the Learned Special Judge has fallen in grave error. The authenticity of the document Exhibit P-168 (collectively) and its validity have not been questioned on behalf of the prosecution but has rather been relied upon those as material evidence against the Appellant. No doubt as per Rule 19(i) of the Sikkim Government 19 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim Servants' Conduct Rules, 1981, property returns are required to be filed by a government servant at the close of every financial year but, as would appear from the notes appended to the said Rules, it appears to have been followed more in breach than in compliance. For better appreciation, the relevant portions of the note are reproduced below:-
"19. Movable, immovable and valuable property.-
.....................................................................
2.1 Rule 19 of the Sikkim Government Servants' (Conduct) Rules, 1981 requires that each Government Servant should at the end of each financial year submit his/her Annual Property Return. Recent reminder vide Circular No.4759/ Gen/DOP dated 16.2.1999 had been circulated by the Department of Personnel.
2.2 In spite of this requirement as provided under the Sikkim Government Servants' (Conduct) rules, 1981 and time to time reminders issued by the Department of Personnel, there are still a large number of Government servants who failed to submit the Annual Property Return. The list of officers who have failed to submit their Annual Property Return is available in the Department of Personnel.
2.3 Government has recently reviewed the non-submission of the Annual Property Returns by Government Servants and have viewed it very seriously. Government has, therefore, directed that all Government Servants shall submit their Annual Property Return for the year which is due and for the year for which no Return were submitted within 31st December, 1999 ......................
2.4 Secretaries and Heads of Departments should be guided by the instructions and should also bring it to the notice of all officers and staff 20 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim serving under them for adhering to these instructions." [underlining mine]
(iii) Undeniably, when the return has been accepted by the authorities under the Rules, and is one of the documents produced by the prosecution and relied upon by them, there can be no reason as to why it should not be accepted as a reliable piece of evidence. Even the bulk of the prosecution case is based upon this document. In these circumstances, rejection of Exhibit P-168 (collectively) is clearly erroneous. Consequently, rejection of the entries made therein simply because the Certificates of Savings and Term Deposits as proof of such entries were not produced by the Appellant, cannot be accepted.
The Learned Public Prosecutor has also fairly conceded to this position.
(iv) Under the circumstances, the sum of ` 1,15,000/- which is the total sum of the two Term Deposits of ` 50,000/- each and two National Saving Certificates of ` 10,000/- and ` 5,000/-, are allowed as income of the Appellant before the check period contained in Statement 'A'.
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(d) Gold and diamond jewellery at the beginning of the check period - ` 1,75,600/-
(i) Similarly, as regards gold and diamond jewellery held by the Appellant at the beginning of the check period, it is found that in Exhibit P-168 (collectively) in the form for "Movable Properties Value of which is Rs. 5,000/- and above for each item" at serial no.11, there is mention of "Gold Jewelleries 6 tolas" valued at ` 1,000/- which is said to have been acquired in 1968 as marriage gifts under column (iv). In Annexure A of the form provided for "details of properties held by wife and children, etc.," at serial no.13 and five clauses thereunder, there is mention of 150 tolas of gold jewelleries worth ` 45,000/- in the name of Nirja Tewari, wife of the Appellant, received in 1968 as marriage gifts from parents, in-laws and other relations and friends as well as diamond jewelleries worth ` 15,000/- acquired in 1968 also as marriage gifts.
(ii) There is also mention of diamond jewelleries worth ` 80,000/- in Exhibit P-168 (collectively) said to have been acquired during the period 1970-89 out of the personal savings of the Appellant and gifts from parents, in-laws and relatives. As regards this, since part of the 22 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim said period of 1970-89 obviously falls within the check period, claim for that entire period cannot be sustained. However, in the interest of justice and fairness, it is felt essential to work out a reasonable value of such jewelleries for the period between 1970 to 31-03-1986, i.e., before the check period. Taking ` 80,000/- as declared by the Appellant in his declaration as the value of the diamond jewellery acquired by the Appellant during the period 1970-89, i.e., 19 years, as the basis, the average acquisition of such jewellery per year would amount to ` 4,210.52. Therefore, the average value of jewelleries acquired between 1970 to 31-03-1986, i.e., 16 years, prior to the check period would be ` 4,210.52 x 16 years = ` 67,368.32.
(iii) We also find mention of 10 tolas of gold in the name of Sona Tewari valued at ` 2,000/- acquired in the year 1969 as birth day gift from relatives; 8 tolas of gold in the name of Bandana Tewari acquired in the year 1970 valued at ` 1,600/-; 7 tolas of gold in the name of Archana Tewari acquired in the year 1974 valued at ` 6,000/-; and 7 tolas of gold in the name of Rachana 23 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim Tewari acquired in the year 1977 valued at ` 10,000/- as gifts from relatives at the time of their birth and on their birthdays.
(iv) Thus, the value of 188 tolas of gold jewelleries and diamond jewelleries works out to ` 1,47,968.32 [i.e., ` 1,000/- + ` 45,000/- + ` 15,000/- + ` 67,368.32 + ` 2,000/- + ` 1,600/- + ` 6,000/- + ` 10,000/-] against the claim of ` 1,75,600/- in view of the foregoing findings as regards the value of the diamond jewellery. These assets have admittedly not been included in Statement 'A' pertaining to the income of the Appellant prior to the check period. The following appearing in the cross- examination of P.W.36, the I.O., would clearly establish this position:-
"............... It is true that Exbt.P-168 is a declaration form submitted by the accused to his employer as per Conduct Rules, 1981 wherein total quantity of gold jewelry as mentioned by the accused at page Nos.5, 6 and 10 of the declaration is 188 tolas plus diamond jewelry worth Rs.95,000/-. I did not give any benefit of these items to the accused in my charge-sheet. It is true that in the charge-sheet I have not given any explanation for not giving benefit of these items to the accused. It is true that I had accepted the veracity of the contents of the declaration in Exbt.P-168 regarding the gold and diamond jewelry worth Rs.95,000/- mentioned in Exbt.P-
168. It is true that statement A of the charge- sheet does not reflect anything about this gold jewelry and diamond jewelry although Exbt. P-168 24 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim shows that the same were acquired long before the check period during the years 1968, 1969, 1970, 1974 and 1977. .........................."
[underlining mine]
(v) Mr. Moulik made sustained efforts to assert that the value of the gold and diamond jewelleries would actually amount to ` 7,14,000/- by application of rates which, as per him, were the prevailing rates for gold. However, the assertion is not convincing and difficult to accept as the declaration of the values mentioned in the assets declaration form, Exhibit P-168 (collectively), is the Appellant's own. Mr. Moulik went on to submit that the rejection of these assets by the Learned Special Judge on the ground as noted earlier was conflicting and contradictory when it has accepted as valid the part of the very Exhibit P-168 (collectively) dealing with the construction cost of the Jorethang building as ` 3,25,000/- and the monthly rent as being at ` 4,950/-.
(vi) Mr. J. B. Pradhan, Learned Public Prosecutor, also does not dispute these facts. In view of the above discussions, I find no reason as to why the entry contained in Exhibit P-168 (collectively) in respect of gold and diamond jewelleries as well as those pertaining to the 25 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim fixed deposits and the national savings certificates should not be accepted as reliable. As evident from the entries found in Exhibit P-168 (collectively) these assets were acquired prior to the check period and, therefore, the Appellant is entitled to the benefit of ` 1,47,968.32 as assets held by him prior to the check period.
(e) TV, VCR and other household gadgets and items at Sichey house - ` 52,000/-
(i) On the next item, i.e., furniture and furnishing and other household and personal items, it is submitted by Mr. Moulik that Exhibit P-45, is the inventory of the entire articles of household items found at the Sichey house of the Appellant on 16-10-1997, acquired by the Appellant during his lifetime until the date of preparation of the inventory. These items are found mentioned in six categories in Statement 'B' of the charge-sheet pertaining to assets at the close of the check period value of which taken together amounts to ` 3,74,055/- as the following would show:-
Item (e): Furniture & furnishing, etc. = ` 1,64,610.00 Item (l): TV, VCR, Tape recorder, etc. = ` 73,100.00 Item (m): Dress, shoes, bedding items = ` 81,650.00 26 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim Item (n): Household equipments, etc. = ` 13,730.00 Item (o): Utensils/kitchen equipments = ` 26,565.00 Item (p): Miscellaneous items = ` 14,400.00 Total = ` 3,74,055.00
(ii) It is submitted that having found the value of the article at item (e) above to be ` 1,64,610/-, the I.O.
had given the Appellant benefit of only 50% of it, i.e., ` 82,305/-, on the ground that the actual value was unascertainable. On the other hand, no values have been worked out on the rest of the items being (l), (m), (n), (o) and (p) even when, as in the case of item (e), these also have been found mentioned in entries 8, 9 and 10 in the relevant column of the declaration of assets and liabilities, Exhibit P-168 (collectively). This, as per the Learned Counsel, was unfair. When in these cases also the values were not ascertainable, it ought to have been calculated by applying the same principle as in the case of item (e) which would have worked out to ` 2,09,445/- and, 50% of that would be ` 1,04,723/- and, this ought to have been allowed as an asset at the beginning of the check period. On a perusal of the findings of the Learned Special Judge in the impugned judgment on this, value as worked out by 27 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim the prosecution @ 50% of ` 1,64,610/- which is ` 82,305/-, has been accepted and the total value of the furniture, furnishing and other household items at Sichey residence worked out to ` 2,91,750/-.
(iii) However, in the first instance, despite efforts it could not be understood as to how this figure of ` 2,91,750/- has been arrived at and, in the second, when the articles at serial nos.(l), (m), (n), (o) and (p) found declared in Exhibit P-168 (collectively) at a cumulative value of ` 32,000/-, benefit of 50% of this ought to have given to the Appellant. In the third, when the Learned Special Judge had rejected the value of the furniture found in the Hauz Khas property standing in the name of his daughter Archana Tewari on the ground of it being prepared on the basis of the statement of Archana Tewari and, therefore, hit by the provisions of Section 162 of the Code of Criminal Procedure, 1973 (in short the "Cr.P.C."), it is not understood as to why the same principle was not applied with regard to the value of the furniture, furnishing and other household items found in the residence at Sichey, Gangtok, when it has been the admitted position 28 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim of the I.O. "that valuation of the articles was assessed in consultation with accused L. P. Tewari and his wife Nirja Tewari".
(iv) Apart from that even the veracity of the valuation is found to be suspect. Admittedly, the valuation as contained in search memorandum Exhibit P- 47, as per the I.O. in his evidence "does not reflect the basis or foundation of calculation of valuation of each item in Exbt P.45"
and "Exbt P.45 is not supported by any voucher". Under these circumstances, the valuation of the furniture, furnishing and other household items as contained in Exhibit P-45 read with Exhibit P-47 cannot be accepted and, therefore, stands deleted.
(v) Thus, the total assets of the Appellant at the beginning of the check period under Statement 'A' would stand modified to as follows:-
STATEMENT - A ASSETS AT THE BEGINNING OF THE CHECK PERIOD IMMOVABLE ASSETS Plots, flats and buildings - NIL 29 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim MOVABLE ASSETS
1. Bank balance in SB A/c No.813 + ` 529.87 of L. P. Tewari at State Bank of Sikkim, Gangtok as on 01-04- 1986
2. Bank balance in SB A/c + ` 5,545.40 No.1981 of L. P. Tewari at UCO Bank, Gangtok as on 01-04- 1986
3. Bank balance in SB A/c No.C- + ` 2,917.84 7096 of Nirza Tewari at SBI, Gangtok as on 01-04-1986
4. Bank balance in SB A/c No.C- + ` 12,924.76 665 of L. P. Tewari at SBI, Gangtok as on 01-04-1986
5. Assumed cash in hand for + ` 9,630.00 household expenses as on 01-
04-1986 (apart from the above bank balance) [the amount shown is equal to 5 months' net salary (` 1926 x
5) as per the statement of salary of 1986 received from the Power Department, Government of Sikkim]
6. Furniture and furnishing - ` 82,305.00 [now deleted as [the total cost of acquisition of income of the furnishing found during the accused] search comes to ` 1,64,610/-
vide different items in serial numbers of search list.
The accused is given the benefit of 50% of these purchases as having been made before the check period]
7. Value of building at Jorethang, + ` 3,25,000.00 West Sikkim at the beginning [now added as of the check period income of the accused]
8. Rental income from Jorethang + ` 1,03,950.00 building before the check [now added as period income of the accused] 30 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim
9. Fixed deposits and NSCs + ` 1,15,000.00 purchased before the check [now added as period income of the accused]
10. Gold and diamond jewellery at + ` 1,47,968.32 the beginning of the check [now added as period income of the accused]
11. TV, VCR and other household - ` 52,000.00 gadgets and items at Sichey [now deleted as house income of the accused] Total = ` 7,23,466.19 Note : Additions and deletions noted in bold within brackets in the last column are based on the findings of this Court. II. Assets to be deleted from Statement 'B' Against the assets at the close of the check period contained in Statement 'B' of the charge-sheet valued at ` 59,58,966.58 said to be in the possession of the Appellant, the Learned Special Judge by the impugned judgment accepted it to be ` 54,18,182.22, the details of which are stated below:-
ASSETS DURING THE CLOSE OF THE CHECK PERIOD
1. Purchase value of plot of land + ` 5,000.00 at Sichey
2. Value of house at Sichey gifted + ` 1,030.00 by the father of the accused Nandalall Tewari
3. Value of flat at Hauz Khas + ` 8,11,751.00 31 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim
4. Value of terrace floor and two + ` 35,000.00 rooms at Sichey
5. Landed property at Mangsari, - ` 98,700.00 West Sikkim in the name of the four daughters of the accused
6. Credit balance on 31.3.97 of + ` 1,42,715.00 the accused in the UCO Bank A/c.
7. Credit Balance as on + ` 2,11,625.00 31.3.1997 of Nirja Tewari in the UCO Bank A/c.
8. Credit Balance as on + ` 2,677.12 31.3.1997 of Nirja Tewari in the SBI A/c.
9. Credit Balance as on + ` 11,905.50 31.3.1997 of the accused in the SBI A/c.
10. Credit Balance as on + ` 4,764.80 31.3.1997 of Bandana Tewari in the CBI A/c.
11. Credit Balance as on + ` 6,929.00 31.3.1997 of Rachana Tewari in the CBI Bank A/c.
12. Credit Balance as on + ` 2,716.00 31.3.1997 of Archana Tewari in the CBI Bank A/c.
13. Credit Balance as on + ` 2,444.80 31.3.1997 of Sona Tewari in the CBI A/c.
14. Total value of eight Kisan + ` 16,37,000.00 Vikas Patra purchased by the accused.
15. Purchase of 2400 Magnum - ` 24,000.00 Multiplier Scheme - 90 by the [added in Rs.4,000/-
accused. as income of the
accused in income list
l. No.4]
16. Purchase of 1,03,000 unit of + ` 10,30,000.00
SBI Magnum Multiplier Scheme
in the name of Nirja Tewari
and Bandana Tewari
32
Crl.A. No.01 of 2013
Laxmi Prasad Tewari vs. State of Sikkim
17. Purchase value of 9 different + ` 12,19,874.00
UTI units certificate by
accused and his family
members
18. Purchase of 200 MRIs-89 in - ` 20,000.00
the name of Nirja Tewari
[added in expenditure
list of the accused in
Sl. No.1]
19. Purchase value of 100 Sikkim + ` 1,000.00
Bank Limited Share Certificate
in the name of Nirja Tewari
20. Value of furniture and other - ` 2,17,435.00
household items of flat at Hauz
Khas
21. Purchase of Maruti Gypsy - ` 85,000.00
bearing No.SK-02/1176
22. Value of furniture and other + ` 2,91,750.00
household items at Sichey
residence
Total = ` 54,18,182.22
From amongst the above, we may deal with only those portions which have been found erroneous and seriously contested on behalf of the Appellant. There were other items also but Mr. Moulik, Learned Senior Counsel for the Appellant, chose not to press those and, therefore, for the sake of brevity, are not dealt with.
(a) Value of furniture and other household items at Sichey house - ` 2,91,750/-
(i) Since we have already dealt with the ones mentioned at serial no.22 in the above table, i.e., value of furniture and other household items at Sichey building, 33 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim while discussing with Statement 'A', we may take up that first. It has been held that the value cannot be relied upon as Exhibit P-45 read with search memorandum, Exhibit P-47 are unrealiable as being hit by Section 162 Cr.P.C. The amount of ` 2,91,750/- against that item stand deleted from Statement 'B'.
(b) Alleged purchase of Magnum Multiplier Plus Scheme, 1993 - ` 10,30,000/-
(i) We may now deal with the other aspect which Mr. Moulik strongly stresses upon. Of this, the one at item no.16 in the above table, i.e., the purchase of 103000 units of SBI Magnum Multiplier Scheme in the name of Nirja Tewari and Bandana Tewari valued at ` 10,30,000/-. This amount has been accepted by the Learned Special Judge primarily based upon the documentary evidence, Exhibit P-176, which is a letter issued by one S. C. Kuckian said to be the authorised signatory of Datamatics Financial Services Ltd., Mumbai, proved by P.W.19, Ashok Kumar Nihalani. The letter, Exhibit P-176 dated 23-02- 1999, was addressed to the Inspector of Police (Vigilance), Government of Sikkim, Gangtok, in response to a requisition made under Section 91 Cr.P.C. in connection 34 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim with the Sikkim Vigilance Case against the Appellant. It may be noted that this is the only document on record providing information about the alleged investment of ` 10,30,000/- by the Appellant in the name of his wife Nirja Tewari and his daughter, Bandana Tewari. The unit name of the scheme is "SBI Mutual Fund - Magnum Multiplier Plus Scheme - 93". There are four categories of information contained in the letter. Category 'A' pertains to the application number, folio number, certificate numbers and distinctive numbers standing in the name of Nirja Tewari and Bandana Tewari. Category 'B' contains number of units and total payment made by each of the two investors with details of the folio number, units and payments made. Category 'C' pertains to the details of the dividend paid as on the date of the letter, as per which the dividends were paid on 09-06-1998 and 10-06-1998 and, Category 'D' provides the information in respect of those magnums which had been transferred on different dates between 30-01-1998 and 10-02-1998.
(ii) It was first argued by Mr. Moulik that the witness P.W.19 was not a reliable witness as he had certified Exhibit P-178 on 17-11-2003 by back dated to 35 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim 14-10-2003 in the Court room without its leave. This argument, however, does not appear to be convincing as the investments in the magnum units is substantiated by official letter of Datamatics Financial Services Ltd., Mumbai, addressed to the Inspector of Police (Vigilance), Government of Sikkim, Gangtok, by authorised signatory of the Company S. C. Kuckian. As held by the Learned Special Judge the prosecution was only considering the investment made by the accused and his family in the units to the tune of ` 10,30,000/- discounting the dividends paid to the investors for the period commencing from 10-06-1997 to 09-06-1998 as being beyond the check period. The Learned Special Judge in paragraph 121 of the impugned judgment appears to have accepted the document Exhibit P-176 as a reliable evidence as proof of its content.
(iii) Secondly, it is submitted that the letter does not mention at all the dates on which the investments were made which is a vital information for the purpose of this case in view of the charge that the investments were also considered as assets in possession of the Appellant at the close of the check period. The end of the check period 36 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim being 31-03-1997, it was crucial for the prosecution to have proved beyond reasonable doubt that the investments were made before that date.
(iv) It was argued that there is no such proof and although, the name of mutual fund scheme "SBI Mutual Fund - Magnum Multiplier Plus Scheme - 93", suggests that the scheme was launched in 1993, there is no evidence that the investments were made in that year or any time thereafter within the check period.
(v) On a careful examination of the letter, Exhibit P- 176, I find, as pointed out by Mr. Moulik, that the date of the investment of ` 10,30,000/- has not been mentioned anywhere. This perhaps would have been revealed had the prosecution produced the applications filed by the respective subscribers and the original certificates of subscribers mentioned in Exhibit P-176. However, it is in the evidence of Ashok Kumar Nihalani, P.W. 19 that "................ police did not seize the applications filed by respective subscriber including the original certificates of the subscriber mentioned in Exbt.P.176". This fact is admitted in the evidence of P.W.36, the I.O., when he stated that "It is true that the supporting documents like application forms of the 37 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim respective parties for issuing the relevant Magnum Certificates as mentioned in Exbt.P-176, original ledger and all other relevant original documents showing issuance of the Certificates mentioned in Exbt. P-176 were not seized or produced by me for comparison about the veracity of the statements made in Exbt. P-176 to Exbt.P-180". The oral evidence of the I.O. also does not shed any light on this as would appear in his examination- in-chief which reads as under:-
" ........................................................................
Exbt.P-176 is the letter in three pages received by me from Datamatics, Financial Services Ltd. in response to my requisition no. 14/97 SVPS dated: 22.2.99. Exbt.P-176 contains the details of investments made by Smt. Nirja Tewari and Ms.Bandana Tewari wife and daughter of Shri L.P .Tewari respectively.
........................................................................"
(vi) Exhibit P-177 is another letter addressed to the Inspector of Vigilance informing him of some more investments in the Magnum Multiplier Scheme. Upon close scrutiny of this letter, the investments pertain to a different scheme, namely, "Master Gain 92 Scheme" and Exhibits P-178, P-179 and P-180 are certified true copies of three dividends warrants mentioned in the letter, Exhibit P-177. We are, however, not concerned with these, but with Exhibit P-176 pertaining to the Magnum Multiplier Plus Scheme - 1993 in which investment of ` 38 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim 10,30,000/- have been made by the Appellant and the members of his family.
(vii) If the investments were made as far back in 1993 dividends ought to have been paid during the 5 years prior to the year 1998 as dividends are generally paid annually. However, in the present case, we find that it has been paid only in June, 1998. Under such facts and circumstances, the possibility of the investment having been made after the check period, i.e., 31-03-1997, also cannot be ruled out. There is no specific statement in the evidence of P.W.19 and P.W.36 on this. Under such circumstances, it cannot be reasonably presumed nor is it permissible in law to draw such presumption on such vague evidence that the Appellant had indeed made the investment during the check period. The prosecution has failed to prove this fact beyond reasonable doubt and the doubt would naturally go in favour of the Appellant. Accordingly, the amount of ` 10,30,000/- stands deleted from Statement 'B'.
Thus, the total assets to be deleted from the assets said to have been held by the Appellant at the close of the 39 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim check period under Statement 'B' would be ` 10,30,000/- + ` 2,91,750/- = ` 13,21,750/- thereby reducing the total value of the assets at the close of the check period to ` 54,18,182.22 - ` 13,21,750.00 = ` 40,96,432.22.
(c) Mr. J. B. Pradhan, Learned Public Prosecutor, however, submits that there is another error committed by the Learned Special Judge in as much as it had not included in Statement 'B' the agricultural land at Mangsari, Soreng Sub-Division, West Sikkim, purchased in the years 1995, 1996 and 1997 in the joint names of Sona Tewari, Bandana Tewari, Archana Tewari and Rachana Tewari, daughters of the Appellant cumulatively valued at ` 98,700/- and duly registered as mentioned in Exhibit P-
207. This is fairly conceded by Mr. Moulik, Learned Senior Counsel for the Appellant. On a perusal of Exhibit P-207 which is a statement of immovable property possessed by the Appellant and his dependants, I am inclined to agree with the submission of Mr. Pradhan and accordingly ` 98,700/- shall stand added to Statement 'B'. Therefore, the total value of the assets at the end of the check period, Statement 'B' would now stand modified as follows:-
40Crl.A. No.01 of 2013
Laxmi Prasad Tewari vs. State of Sikkim STATEMENT - B ASSETS DURING THE CLOSE OF THE CHECK PERIOD
1. Purchase value of plot of land + ` 5,000.00 at Sichey
2. Value of house at Sichey gifted + ` 1,030.00 by the father of the accused Nandalal Tewari
3. Value of flat at Hauz Khas + ` 8,11,751.00
4. Value of terrace floor and two + ` 35,000.00 rooms at Sichey
5. Landed property at Mangsari, + ` 98,700.00 West Sikkim in the names of [now added as four daughters of the accused income of the accused]
6. Credit balance on 31-03-1997 + ` 1,42,715.00 of the accused in the UCO Bank A/c.
7. Credit Balance as on 31-03- + ` 2,11,625.00 1997 of Nirja Tewari in the UCO Bank A/c.
8. Credit Balance as on 31-03- + ` 2,677.12 1997 of Nirja Tewari in the SBI A/c.
9. Credit Balance as on 31-03- + ` 11,905.50 1997 of the accused in the SBI A/c.
10. Credit Balance as on 31-03- + ` 4,764.80 1997 of Bandana Tewari in the CBI A/c.
11. Credit Balance as on 31-03- + ` 6,929.00 1997 of Rachana Tewari in the CBI Bank A/c.
12. Credit Balance as on 31-03- + ` 2,716.00 1997 of Archana Tewari in the CBI Bank A/c.
13. Credit Balance as on 31-03- + ` 2,444.80 1997 of Sona Tewari in the CBI A/c.41 Crl.A. No.01 of 2013
Laxmi Prasad Tewari vs. State of Sikkim
14. Total value of eight Kisan + ` 16,37,000.00 Vikas Patras purchased by the accused.
15. Purchase of 2400 Magnum - ` 24,000.00 Multiplier Scheme - 90 by the [added as Rs.4,000/-as accused. income of the accused in income list l. No.4]
16. Purchase of 1,03,000 unit of - ` 10,30,000.00 SBI Magnum Multiplier Scheme [now deleted as in the name of Nirja Tewari income of the and Bandana Tewari accused]
17. Purchase value of 9 different + ` 12,19,874.00 UTI units certificate by accused and his family members
18. Purchase of 200 MRIs-89 in - ` 20,000.00 the name of Nirja Tewari [added in expenditure list of the accused in Sl. No.1]
19. Purchase value of 100 Sikkim + ` 1,000.00 Bank Limited Share Certificate in the name of Nirja Tewari
20. Value of furniture and other - ` 2,17,435.00 household items of flat at Hauz Khas
21. Purchase of Maruti Gypsy - ` 85,000.00 bearing No.SK-02/1176
22. Value of furniture and other - ` 2,91,750.00 household items at Sichey [now deleted as residence income of the accused] Total = ` 41,95,132.22 Note : Additions and deletions noted in bold within brackets in the last column are based on the findings of this Court. III. Income to be added to Statement 'C' Moving on to income and receipts of the Appellant during the check period as set out in Statement 'C' 42 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim contained in the charge-sheet, it may be noted that against ` 35,75,903.50 the Learned Special Judge has arrived at ` 40,04,572.73. Mr. A. Moulik, Learned Senior Counsel contended that the prosecution has failed to add a number of incomes which the Appellant had earned during the check period and were also overlooked by the Learned Special Judge by not appreciating the evidence in its proper perspective which are dealt with in seriatim below:-
(a) Rent from Siliguri house during the check period -
` 2,72,250/-
(i) In Statement 'C' of the charge-sheet contained in item (b), the rent received by the Appellant from Siliguri house has been considered only for the period July, 1987 to June, 1991 amounting to ` 1,27,500/-. This fact was proved in Court by P.W.29, Sukanta Roy, a personnel of the Company, M/s. Contemporary-Target Limited, which had taken the house on rent. The relevant portion of his evidence is reproduced below:-
"....................................................... The house rent was Rs. 2500/- per month. .............................. As per the books of accounts maintained by our organisation i.e. M/S Contemporary -Target Limited an amount of Rs. 1,27,500/- was found to have been made to the family members of Mr. L.P. Tiwari. The afore cited amount was paid as rent 43 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim for the period 1987 to 1991 as per theoffce (sic) records of my said orgnisation.
XXX-by the accused through Ld. Senior counsel Shri. A.Moulik ................ I remember that the rent was paid to the accused by the said company from the year 1987 to the year 1991 but I do not know the starting and the ending months. ..............................."
(ii) Deepak Sharma, also a tenant, who appeared as D.W.1, stated that he occupied the house from July, 1991 to May, 1997 @ monthly rate of ` 3,500/- which, as per agreement, was enhanced @ 5% every year. We may reproduce the relevant portion of his evidence below:-
"From the month of July 1991 to May 1997 I was residing in the house of one Sona Tiwari, daughter of accused L.P. Tiwari in her building situated at Siliguri as a monthly rent basis.
Initially I was paying monthly rent at the rate of RS:3500/- per month from July 1991 to June 1992. It was agreed that rent would be enhanced by 5% every year on the initial rent at the beginning of each year. ..............................
Cross-examination by the Ld. Special P.P. Shri N.P.Sharma for the prosecution.
................ I had taken the entire ground level floor of the house of Sona Tiwari which consisted of two bedrooms, one living room, one dinning room, one kitchen with facility of parking space. Although I had maintained the accounts in respect of the house rents paid by me to the landlady during the relevant period however today I have not brought the same to the Court the same having been misplaced. I had also received payment receipts from the landlady / representatives in respect of the rents paid by me.44 Crl.A. No.01 of 2013
Laxmi Prasad Tewari vs. State of Sikkim I have not produced the said receipts today since they have been misplaced as the matter pertains to one about 15 years ago. ..............................."
[underlining mine]
(iii) The evidence of D.W.1 has been found to have been corroborated in full measure by D.W.2, Shankar Bdr. Bishwakarma, who was the Caretaker of the house, as would be evident from the following extract of his deposition:-
"I know D.W.1 Shri Deepak Sharma as well as Miss Sona Tiwari. I was the Chowkidar in the house of Sona Tiwari from the year 1988 to 2010. The said house is located at Siliguri near Pranami Mandir. Shri Deepak Sharma, DW 1 was a tenant in the house of Miss Sona Tiwari.
Cross-examination by the Ld. Special P.P. Shri N.P.Sharma for the prosecution.
................ I worked as Chowkidar in the house of Sona Tiwari for 20 years from 1988. ...................... I know D.W 1 Deepak Sharma as he was residing as a tenant in the house of Sona Tiwari between 1991 to 1997. ........................... Before DW 1 Deepak Sharma one officer of Private Company used to reside in the said premises. ..............................." [underlining mine]
(iv) The I.O. of the case, P.W.36, has also admitted in his evidence that the rental for the period July, 1991 to March, 1997 was not reflected in Statement 'C' as would appear from the following:-
Further cross-examination on S.A. by the accused through Ld. Counsel Shri A.Moulik recorded on 14.10.2011 45 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim ........................................................................
It is true that I have not given the benefit of rent income to the accused in respect of his building near Pranami Mandir , Siliguri as reflected in item No. (b) of statement C of the charge sheet for the period July 1991 to March 1997 which amounts at Rs:2,72,250/- at the rate of Rs:3500/- per month. ........................ It is true that as per exbt.P-168 the accused has declared that he has a 5 storied RCC building in plot no.1 Sector B of Jorethang which was constructed during 1983-84 and was rented out at the rate of Rs:4950/- per month. It is true that I did not accept the said rent income from that building for the period before the check period as it was beyond the check period. ...................... " [underlining mine]
(v) On the above established position, we may calculate the rent received by the Appellant for the house as under:-
1) From July 91 to June 92 @ Rs.3,500 p.m. = Rs. 42,000/-
2) From July 92 to June 93 @ Rs.3,675/- p.m. = Rs. 44,100/-
3) From July 93 to June 94 @ Rs.3,858/- p.m. = Rs. 46,296/-
4) From July 94 to June 95 @ Rs.4,051/- p.m. = Rs. 48,612/-
5) From July 95 to June 96 @ Rs.4,254/- p.m. = Rs. 51,048/-
6) From July 96 to June 97 @ Rs.4,466/- p.m. = Rs. 40,194/-
Total = Rs.2,72,250/-
(vi) The Learned Special Judge, however, appears to have rejected this claim only on the ground that the Appellant had failed to produce any receipt in support of his claim. This appears to be in clear conflict with its 46 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim approach while dealing with the evidence pertaining to rental of the previous tenant occupying the very premises between July, 1987 to June, 1991 when the sole testimony of P.W.29 was accepted because he had stated that the fact about payment of rent by the Company was based on the books of accounts maintained by the Company. But, the books of accounts, the basis of arriving at the conclusion that such rent was indeed paid by the Company, undeniably was not produced. Obviously, therefore, the Learned Special Judge had believed the oral testimony of P.W.29 who was the sole witness to prove that fact and, in my view, no fault can be found on that as the evidence is acceptable in law.
(vii) Adopting the same approach as above, I do not find any reason as to why D.W.1 also should not be believed. He was the very person who was the tenant after July, 1991 and, D.W.2, the Chowkidar during that period. Their evidence, in my considered opinion, are in conformity with Sections 59 and 60 of the Evidence Act, 1872, and appear to have been corroborated by not less than the I.O. himself as would appear from his evidence referred to earlier. Therefore, ` 2,72,250/- earned by 47 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim the Appellant as rent from his Siliguri house for the period July, 1991 to March, 1997 stands added to the income earned during the check period in Statement 'C'.
(b) Sale of gold ornaments during the check period -
` 8,05,307/-
(i) On behalf of the Appellant it is stated that the fact that the Appellant had in his possession gold and diamond jewelleries much before the commencement of the check period already stands established vide Exhibit P- 168 (collectively) as per which the gold jewellery alone constituted 188 tolas having acquired them between 1968-77. Apart from this, it also stands proved by Exhibit P-168 (collectively) that during their marriage the Appellant's wife had acquired jewellery worth ` 15,000/- in 1968 and diamond and gold jewelleries sets from 1968 to 1989 valued at ` 80,000/-. It is submitted on behalf of the Appellant that from the sale of gold ornaments and jewellery to D.W.3, Shri Pradeep Kumar Verma, a reputed Jeweller of Gangtok, he had earned ` 8,05,307/- as total sale proceeds. We have already discussed in detail earlier as regards the acquisition of the gold and diamond 48 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim jewellery and, therefore, we need not delay ourselves on this only noting that the value of the diamond and gold jewellery from the year 1968 to 1989 has been modified to ` 67,368.32 while discussing earlier the questions on items under Statement 'A'. The total weight of gold and its value have been accepted by us as claimed by the Appellant as those are found clearly mentioned in Exhibit 168 (collectively). However, the Learned Special Judge appears to have rejected the claim of the Appellant that out of those, he had sold about 150 tolas to D.W.3 on the ground that this witness had failed to produce the books of accounts of the shop to establish and corroborate the receipts Exhibits D-20 and D-21 and that the sale had indeed taken place on the dates mentioned therein.
(ii) I have carefully considered the evidence of D.W.3, Pradeep Kumar Verma, who has in most categorical terms stated as under:-
".................................In the year 1993 and 1995 I r member having purchased some gold ornaments vide Exbt. D-20 and Exbt.D-21 shown to me now. The same were issued by me from my shop in my own handwriting.
Exbt.D-20 is the purchase receipt dated:
29.7.1993 being Serial No. 611 through which I had purchased 58.510 tolas of gold ornaments from Smt. Nirja Tiwari, wife of L.P.Tewari at the 49 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim rate of Rs: 5250 per tola of gold and the total prices paid by me to Mrs. Nirja Tiwari was Rs:
3,07,177/-(Rupees three lakshs seven thousand , one hundred and seventy seven). Exbt. D-20(A) is my signature on Exbt.D-20. At the relevant time the prevalent rate of gold was the same rate by which I had purchased the gold ornaments and paid her money.
Exbt.D-21 is also a purchase receipt issued by me to Smt.N.Tiwari, wife of L.P.Tiwari on 25.6.1995 being receipt No.102. Through the said document I had purchased 91.40 tolas of gold ornaments of different descriptions mentioned in the document at the rate of Rs: 5450/- per tola and the total price paid by me to Smt. Nirja Tiwari was Rs: 4,98,130/-. Exbt.D-21(a) is my signature on Exbt.D-21. I have also put my seal of my shop both on Exbt.D-20 and Exbt.D-21. These documents are genuine from my end. The payment made to Smt.Nirja Tiwari by me against Exbt.D-20 and exbt.D-21 were in cash."
(iii) In his cross-examination this witness appears to have remained firm as the prosecution failed to contradict him on any of the material part of his evidence. While explaining as to why he had not brought the accounts in respect of the transaction, Exhibits D-20 and D-21, he has stated as under:-
"Cross-examination by the Ld. Special P.P. Shri N.P.Sharma for the State ................ It is true that my shop had maintained account in respect of transaction Exbt.D-20 and Exbt.D-21. I have not brought such records today as the records of my business up to the year 2001 have been destroyed in the routine course due to lack of space for their storage and custody. It is not a fact that no such records were maintained by my office. ..................."50 Crl.A. No.01 of 2013
Laxmi Prasad Tewari vs. State of Sikkim
(iv) In my view, this is a reasonable explanation and I find no reason to disbelieve it. No evidence appears to have been brought by the prosecution to disprove Exhibits D-20 and D-21. Under these circumstances, I am inclined to accept the claim of the Appellant and include a sum of ` 8,05,307/- as the value of gold jewellery sold out to D.W.3 of 188 tolas as contained in Exhibit P-168 (collectively).
(c) Gift from grandfather to four granddaughters -
` 8,00,000/-
(i) Mr. Moulik submits that the fact that the gift of money @ ` 2,00,000/- was made by the father of the Appellant to each of his four granddaughters, namely, Sona Tewari, Archana Tewari, Rachana Tewari and Bandana Tewari, stands proved and accepted by the Learned Special Judge. However, those amounts were not accepted as the income of the Appellant as the Learned Special Judge was of the opinion that amounts gifted to his daughters cannot be considered as income of the Appellant. As per Mr. Moulik this conclusion was 51 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim inconsistent with the findings in respect of the other assets which, although were held in the name of his daughters and wife, were considered as assets of the Appellant. It is submitted that a large number of entries in Statements 'B' and 'C' in the charge-sheet pertaining to income and assets in the name of the daughters and wife and those were clubbed with that of the Appellant. This, as per the Learned Senior Counsel, is also an admitted position on the part of P.W.36, the I.O. Under these circumstances, the rejection of the gift money and its exclusion from the assets of the Appellant Statement 'C' was erroneous. This contention is also not contested rather fairly conceded on behalf of the State-Respondent.
(ii) Upon consideration of the materials on records, it is evident that the income and assets of the four daughters of the Appellant and his wife have been clubbed together as his income, a circumstance accepted by P.W.36, the I.O., as would appear from evidence that "It is true that in the charge sheet I have clubbed the income of the wife of the accused and those of his daughters". Therefore, when it stands established that money was gifted by the grandfather to his granddaughters, it is not understood 52 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim why the same principle as applied in respect of the other income and assets, be not applied in this case also. I am, therefore, inclined to grant the benefit of ` 8,00,000/- to the Appellant to be included in Statement 'C'.
(d) Gift by grandfather to Archana to buy flat in Delhi
- ` 3,00,000/-
(i) The above income has been rejected by the Learned Special Judge on the same ground that the Appellant cannot claim money gifted to his daughter as his income. In my view, the principle adopted in respect of the money gifts as discussed above would also be applicable here rendering the finding of the Learned Special Judge unacceptable. Undeniably, the daughters were dependants of the Appellant and, therefore, any income accruing to a dependant would be considered as income of the Appellant. It is not the case of the Appellant that such an amount was not gifted to Archana Tewari. The factum of such amount having been sent by Nandalal Tewari, the grandfather to Archana Tewari is borne out by Exhibit D2, a certificate issued by the Branch Manager, Central Bank of India, Geyzing Branch, issued on 53 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim 27-03-2001 and that this amount was credited in the Savings Bank Account of Archana Tewari bearing A/c No.2883 in the Central Bank of India, Gangtok Branch, stands established by the relevant entry in the Statement of her SB Account, Exhibit P-22 dated 31-12-1990.
(ii) For these reasons, I have no hesitation to hold that the Appellant would also be entitled to the benefit of ` 3,00,000/- to be added to his income during the check period.
(e) Loan from uncle and aunt, P. K. and Tika Tewari to buy flat in Delhi - ` 4,05,000/-
(i) In so far as loan from P. K. Tewari, uncle and Tika Tewari, aunt of the Appellant, amounting to ` 4,05,000/- claimed on behalf of the Appellant, I find that the evidence does not clearly indicate this as there appears to be multiple transactions of different amounts. I agree with the findings of the Learned Special Judge at paragraph 74 of the impugned judgment that "On the one hand the accused claims that it is a loan to his daughter and in the same breath says that it is an inflow of an income to him from other sources". Accordingly, the benefit of this income is not granted to him.
54Crl.A. No.01 of 2013
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(f) Peerless income of Nirja Tewari during the check period - ` 43,314/-
(i) The next is the income of Nirja Tewari, wife of the Appellant from Peerless as its agent amounting to ` 43,314/- earned during the period between 29-04-1986 to 15-02-1987. On behalf of Appellant it is contended that this was an income which the wife of the Appellant had earned as a Peerless Agent. The fact that she was a Peerless Agent is borne out by the entry number 2 of the relevant Annexure to the declaration of assets, Exhibit P- 168 (collectively), which mentions her Bank Account Number as AC No.C/7096. The fact that these amounts were earned and deposited is revealed from the Statement of Accounts pertaining to that very Account Number which shows the following deposits:-
Amount Credited on
` 7,550.40 29-04-1986
` 7,550.40 17-06-1986
` 13,213.20 15-07-1986
` 15,000.40 15-02-1987
Total ` 43,314.00
(ii) From the above, the claim on behalf of the
Appellant that these amounts were earned by his wife 55 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim Nirja Tewari as peerless agent has been found satisfactorily proved. Even if, it is not accepted that Nirja Tiwari was a Peerless Agent, it nevertheless stands established that she did have deposits of the above amounts on the dates mentioned against each of those. These would, therefore, be income acceptable as income accrued to the Appellant during the check period and is, therefore, stands added to Statement 'C'.
Following from the above findings, the total income to be added as income earned by the Appellant during the check period under Statement 'C' would be ` 2,72,250/- + ` 8,05,307/- + ` 8,00,000/- + ` 3,00,000/- + ` 43,314/- = ` 22,20,871/-. Therefore, the actual income during the check period ought to have been ` 40,04,572.73 + ` 22,20,871/- = ` 62,25,443.73 as would be evident from the following details:-
STATEMENT - C INCOME DURING THE CHECK PERIOD
1. Gross salary of the accused + ` 13,12,885.00
2. Rent from house at Siliguri + ` 1,27,500.00
3. Rent from building at + ` 4,00,950.00 Jorethang 56 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim
4. Dividends reeived by accused + ` 4,000.00 on investment made by him from Magnum Multiplier Scheme
5. Dividends received from - ` 6,840.00 Magnum Multiplier Scheme -
SBI Mutual Fund by the accused Interests accrued in the Central Bank of India Accounts of the following persons:
6. Bank Account of Sona Tewari + ` 10,514.22
7. Bank Account of Bandana + ` 17,453.92 Tewari
8. Bank Account of Archana + ` 6,086.47 Tewari
9. Bank Account of Rachana + ` 4,733.47 Tewari Interests accrued in the UCO Bank Accounts of the following persons:
10. Bank Account of the accused + ` 21,998.00
11. Bank Account of Nirja Tewari + ` 17,194.53 Interests accrued in the State Bank of India Accounts of the following persons:
12. Bank Account of Nirja Tewari + ` 14,798.48
13. Bank Account of the accused + ` 9,959.49
14. Interest on FDR 8/13 in the + ` 2,146.78 Savings Account No.2908 of Central Bank of India of Bandana Tewari
15. Interest on FDR dated 08-01- + ` 97,725.80 1991 in the Savings Account No.2908 of Central Bank of India of Bandana Tewari
16. Interest on FDR dated 16-03- + ` 1,10,248.00 1993 in the Savings Bank Account No.2908 of Central Bank of India of Bandana Tewari credited on 11-08-1995 57 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim
17. Interest on FDR dated 22-05- + ` 41,844.00 1993 in the Savings Bank Account No.2908 of Central Bank of India of Bandana Tewari credited on 11-08-1995
18. Interest on FDR dated 01-08- + ` 2,251.53 1998 in the Savings Bank Account No.2883 of Central Bank of India of Archana Tewari
19. Interest on FDR dated 04-08- + ` 2,251.53 1989 in the Savings Bank Account No.2882 of Central Bank of India of Rachana Tewari
20. Interest on FDR No.8/38 dated + ` 2,146.78 17-07-1989 in the Savings Bank Account of Central Bank of India of Bandana Tewari
21. Interest on FDR dated 08-08- + ` 38,334.80 1991 in the Savings Bank Account No.2945 of Central Bank of India of Sona Tewari credited on 11-08-1995
22. Interest on FDR 19802 in the + ` 757.90 Savings Bank Account No.1981 of UCO Bank of the accused
23. Interest on FDR dated 20-02- + ` 4,687.10 1991 in the Savings Bank Account No.2721 of UCO Bank of Nirja Tewari credited on 27-
07-1990
24. Interest on FDR of Nirja Tewari + ` 997.25 for ` 50,000/-
25. Interest on FDR No.394411 in + ` 15,497.00 the Savings Bank Account No.C-7096 of State Bank of India of Nirja Tewari credited on 19-08-1995
26. Interest on FDR in Central + ` 51,245.00 Bank of India, Kalimpong credited in the Savings Account of UCO Bank, Gangtok of Nirja Tewari
27. Benefits from LIC policies of + ` 60,000.00 Bandana and Sona Tewari 58 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim
28. Profits from sale of RCC + ` 11,75,000.00 building at Jorethang
29. Lottery won by Nirja Tewari + ` 1,62,912.00 bearing ticket no.A-97905 (Snow Lion drawn on 02-11-1988)
30. Redemption from Magnum + ` 30,770.00 Income Scheme received by Nirja Tewari in her UCO Bank Account
31. Profits from the sale of flat at + ` 2,00,000.00 Greater Kailash - II : credited in the account of Archana
32. Interest in Account No.813 of + ` 23,230.68 the accused in the State Bank of Sikkim
33. Interest on redeposit of TDR + ` 16,956.00 No.394410 of the accused
34. Maturity of STDR No.39441 + ` 17,497.00
35. Rent from Siliguri house during + ` 2,72,250.00 the check period [now added as income of the accused]
36. Sale of gold ornaments during + ` 8,05,307.00 the check period [now added as income of the accused]
37. Gift from grandfather to four + ` 8,00,000.00 granddaughters [now added as income of the accused]
38. Gift by grandfather to Archana + ` 3,00,000.00 to buy flat in Delhi [now added as income of the accused]
39. Loan from uncle and aunt, P. - ` 4,05,000.00 K. and Tika Tewari to buy flat [now deleted as in Delhi income of the accused]
40. Peerless income of Nirja + ` 43,314.00 Tewari during the check period [now added as income of the accused] Total = ` 62,25,443.73 Note : Additions and deletions noted in bold within brackets in the last column are based on the findings of this Court. 59 Crl.A. No.01 of 2013
Laxmi Prasad Tewari vs. State of Sikkim IV. Assets to be deleted from Statement 'D' Moving on to Statement 'D' pertaining to expenditure during check period, out of ` 16,86,597.06 as per the charge-sheet, the Learned Special Judge has accepted ` 8,79,118.90. As per the Learned Special Judge there were several amounts that required deletion from Statement 'D' as expenditure incurred by the Appellant which the Appellant seriously contests. They are dealt with in seriatim below:-
(a) Cost of Greater Kailash-II Flat - ` 5,50,000/-
(i) It is contended on behalf of the Appellant that the Learned Special Judge has wrongly included ` 5,50,000/- as the cost of the flat situated at Greater Kailash - II, New Delhi. On behalf of the Appellant, it is submitted that although the amount was spent by Archana Tewari towards the cost of the flat vide sale deed Exhibit P-198 on 25-01-1991, it was again resold by her shortly thereafter on 20-03-1991 to one Shri R. K. Goel for ` 7,50,000/-. This is borne out by the payment received by Archana Tewari vide SBS cheque No.H-203655 dated 60 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim 20-03-1991 marked Exhibit P-44 issued by R. K. Goel in her favour as proved by P.W.11, an Officer of the State Bank of Sikkim. With this amount, i.e., ` 7,50,000/-, Archana Tewari brought another flat at Hauz Khas, New Delhi, as would be evident from the sale deed Exhibit P-
197 and the entry in Archana's SB A/c No.2883 dated 21- 03-1991 marked Exhibit P-22. The details of this purchase as revealed in the evidence of P.W.36, the I.O., has been accepted by him in the charge-sheet as mentioned in Statement 'B' thereof under item no.3 providing for immovable assets. In this entry ` 8,11,751/- which includes the cost of Hauz Khas flat amounting to ` 7,50,000/- plus DD commission, stamp duty and corporation tax has already been taken as assets of the Appellant at the close of the check period. From the series of transactions as revealed from the entries in Exhibit P- 22, i.e., statement of accounts in respect of her bank account, the source of money paid for Hauz Khas flat can conveniently be traced to the money accrued from the sale of Greater Kailash - II flat which includes the original amount of ` 5,50,000/- paid by her for purchase of the house at Greater Kailash - II initially. Therefore, inclusion 61 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim of this amount of ` 5,50,000/- as expenditure of the Appellant during the check period would be duplication of that amount and, therefore, requires deletion from Statement 'D'.
(ii) These fact is also fairly conceded by Mr. J. B. Pradhan, Learned Public Prosecutor. Upon consideration of the entire evidence, I find substance in the argument placed by Mr. Moulik and accordingly, the amount of ` 5,50,000/- stands deleted from Statement 'D' in the findings of the Learned Special Judge.
(b) Refundable security deposit at Springdales School
- ` 1,500/-
As per the Learned Senior Counsel under the verifiable expenditure in Statement 'D' in the charge- sheet, ` 11,620/- has been mentioned against the fees and other charges paid to Springdales School, New Delhi, for Rachana Tewari, daughter of the Appellant, out of the total amount ` 13,170/- that was paid. Out of this, ` 1,500/- was refundable security deposit as mentioned in Exhibit P-191. However, the Learned Special Judge vide its judgment in paragraph 85 has taken the refundable 62 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim security deposit of ` 1,500/- also as expenditure of the Appellant which the I.O. had correctly deducted in the charge-sheet. As per Exhibit P-191 the student had already left the school on 30-04-1995 after passing AISSE. It is an obvious fact that refundable security deposits are invariably refunded to the students at the time of leaving the school. Therefore, taking the refundable security deposit as expenditure in this case was erroneous. Accordingly, ` 1,500/- stands deleted from Statement 'D', i.e., expenditure of the Appellant during the check period.
(c) Refundable security deposit at Delhi Public School
- ` 1,500/-
Similarly, fees paid to Delhi Public School on account of Archana Tewari, daughter of the Appellant, is ` 10,170/-. The total fees paid was ` 11,670/- out of which amount ` 1,500/- was caution money and refundable which is refunded when the child leaves the school. As per the exhibit the student had already left the school on 31-03-1993. The I.O. had rightly deducted the amount while calculating the expenditure. But, the Learned Special Judge in paragraph 85 of the impugned judgment wrongly included the amount. Therefore, 63 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim caution money of ` 1,500/- stands deleted from the expenditure of the Appellant under Statement 'D'.
(d) Refundable security deposit at La Martiniere for Girls
- ` 2,000/-
At item (b) (7) under verifiable expenditure of Statement 'D' of charge-sheet, the fees paid for Bandana Tewari, daughter of the Appellant, has been given mentioned as ` 14,031/-. Exhibit P-200 shows the details of the expenditure amongst the boarding fees paid by the student is ` 500/- per month. It is an established practice that schools in India remain closed for vacation for about 2 months every year. The I.O. while calculating the expenditure incurred by the student in the school had rightly deducted ` 2,000/- as boarding fees for two years to adjust for the 4 months' vacation and calculated the net expenditure at ` 14,031/-. The Learned Special Judge in paragraph 87 of the impugned judgment, however, has wrongly calculated the expenditure at ` 16,031/- by including ` 2,000/- against boarding fees for 4 months' vacation in 2 years. Therefore, this amount stands deducted from the expenditure of the Appellant during the check period.
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(e) Thus, against the school fees, the Appellant is entitled to deduction of ` 5,000/- from Statement 'D'.
The total amount that requires deduction from the expenditure calculated by the Learned Special Judge are as follows:-
` 8,79,118.90 - ` 5,55,000/- (` 5,50,000/- + ` 5,000/-) = ` 3,24,118.90.
(f) Mr. J. B. Pradhan, Learned Public Prosecutor, pointed out that a sum of ` 3,10,500/-, admittedly paid by the Appellant on account of fees to Mussoorie International School in respect of education of Archana Tewari and Bandana Tewari as established by the evidence of P.W.27, Dr. H. K. Rawal, Principal-cum-Chairman of that school, which the Learned Special Judge has overlooked, requires to be added. Mr. Moulik considering the evidence has fairly conceded to this.
Therefore, the actual expenditure incurred by the Appellant during the check period requiring modification of Statement 'D' is as under:-
65Crl.A. No.01 of 2013
Laxmi Prasad Tewari vs. State of Sikkim STATEMENT - D ITEMS OF EXPENDITURE DURING THE CHECK PERIOD
1. Purchased 200 Magnums of + ` 20,000.00 State Bank of India Mutual Fund - MRI Scheme 1989
2. Fees paid to Pearl Academy for + ` 45,000.00 Archana Tewari
3. Fees paid to Springdale + ` 11,670.00 School, New Delhi for Rachana Tewari [Refundable security deposit at Springdales School ` 1,500/- has now been deleted as expenditure of the accused]
4. Fees paid to Lady Shreeram + ` 8,311.00 College for Women, New Delhi for Bandana Tewari
5. School fees paid for Archana + ` 10,170.00 Tewari [Refundable security deposit at Delhi Public School ` 1,500/- has now been deleted as expenditure of the accused]
6. School fees paid for Rachana + ` 1,613.00 Tewari in Venkateshwar College
7. Fees paid to Jamia Milia + ` 11,221.00 Islamia University for Bandana
8. Fees paid for bandana Tewari + ` 14,031.00 in La Martinier for Girls, Calcutta [Refundable security deposit at La Martiniere for Girls ` 2,000/- has now been deleted as expenditure of the accused]
9. Fees paid to Mussoorie - ` 2,94,005.51 International School for Archana Tewari
10. Fees paid to Mussoorie - ` 5,57,504.55 International School for Rachana Tewari 66 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim
11. School fee paid for Bandana + ` 13,858.00 Tewari and Rachna Tewari at Loreto Convent
12. Fees paid to St. Thomas - ` 1,980.00
13. LIC Premiums deposited + ` 1,68,244.90
14. Bought a flat at Greater - ` 5,50,000.00 Kailash - II, New Delhi in the [now deleted as name of Archana Tewari expenditure of the accused]
15. Purchase of magnum Multiplier + ` 20,000.00 Scheme - 90
19. Paid on account of fees to + ` 3,10,500.00 Mussoorie International School [now added as in respect of education of expenditure of the Archana and Bandana accused] Total = ` 6,34,618.90 Note : Additions and deletions noted in bold within brackets in the last column are based on the findings of this Court.
13. On the basis of the foregoing findings, the summary of the assets, income and expenditure of the Appellant now stands modified as under:-
(a) Assets at the close of the check Statement 'B' ` 41,95,132.22 period
(b) Less : Assets at the beginning of Statement 'A' ` 7,23,466.19 the check period
(c) Assets acquired during the check (a) - (b) ` 34,71,666.03 period
(d) Add : Expenditure during the Statement 'D' ` 6,34,618.90 check period
(e) Total assets during the check (c) + (d) ` 41,06,284.93 period
(f) Less : income from known sources Statement 'C' ` 62,25,443.73 during the check period
(g) Surplus of assets at the end of the (f) - (e) ` 21,19,158.80 check period 67 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim
14. As the Appellant at the end of the check period is found to have been in possession of assets much less than the income earned by him during the check period, the charge of the prosecution against the Appellant under Section 13(1)(e) read with Section 13(2) of the Act of 1988 corresponding to Section 5(1)(e) read with Section 5(2) of the Act of 1947, for being in possession of assets disproportionate to his known sources of income fails.
15. For the reasons stated above, the Appeal succeeds and is hereby allowed. The impugned judgment and sentence passed by the Learned Special Judge, Prevention of Corruption Act, East and North Sikkim at Gangtok, is hereby quashed.
16. The Appellant is acquitted of the charges framed against him and is released from bail.
17. No order as to costs.
18. A copy of this judgment and the original case records be transmitted to the Court of the Learned Special 68 Crl.A. No.01 of 2013 Laxmi Prasad Tewari vs. State of Sikkim Judge, Prevention of Corruption Act, East Sikkim at Gangtok, for its due compliance.
( S. P. Wangdi ) Judge 11-08-2014