Supreme Court - Daily Orders
Phoolchand Gupta vs State Of M.P. on 8 September, 2015
Author: Chief Justice
Bench: Chief Justice, Arun Mishra
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1906 OF 2009
PHOOLCHAND GUPTA ...APPELLANT(S)
VERSUS
THE STATE OF MADHYA PRADESH ...RESPONDENT(S)
O R D E R
1. This appeal is directed against the judgment and order passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.1368 of 1997, dated 25.03.2009, whereby the High Court has set aside the order of acquittal passed by the Trial Court in Special Case No.8 of 1994 dated 18.11.1996.
2. The prosecution’s case is as follows:
During the check period between 16.04.1979 to 20.07.1992, the appellant was working as a public servant under the Municipal Corporation, Bhopal in the capacity of first, a Lower Divisional Clerk and then a Stenographer. On 16.04.1979, the appellant was appointed as Lower Divisional Clerk in the pay scale of Rs.180-320/-. On Signature Not Verified Digitally signed by Ramana Venkata Ganti Date: 2015.09.17 16:47:29 IST Reason: 27.08.1984, he was appointed as Junior Stenographer in the pay scale of Rs.740-1180/-. Thereafter, on 2 27.12.1990, he was promoted to the post of Senior Stenographer with a pay scale of Rs.1500-2700/- and, as on 02.01.1992, was drawing a basic pay of Rs.1820/-.
During this period, a scooter bearing No.MID 5479 was transferred to the appellant’s name. Plots bearing Nos.197 and 197A were also leased to the appellant by the Municipal Corporation. A ‘gumti’ (shop) bearing No.123, situated at Jawahar Chowk, Bhopal was first allotted to one Mr. Narendra Tiwari and later transferred to Mrs. Usha Gupta, the wife of the appellant.
3. On 25.04.1992, 29.04.1992 and 30.04.1992, reports appeared in the newspaper “Daily Bhaskar” in Bhopal claiming that the appellant had illegally acquired unaccounted wealth and had misused his official position to purchase several shops. Based on these newspaper reports, a preliminary inquiry was initiated by the Deputy Superintendent of Police, Special Police Establishment Division, Lokayukta, Bhopal. On 06.06.1992, a preliminary report was submitted and a case was registered against the appellant. An investigation was initiated during the course of which it was found:
a) That the appellant had been allotted a plot bearing 3 No.197, of size 2400 sq. ft. on lease at a concessional rate of Rs.4773/-;
b) That the appellant had been allotted the plot of land bearing No.197A, on lease, at a concessional rate of Rs.4408/- and that a house valued at Rs.3,48,000/- had been built on the said plot;
c) That a shop bearing No.123 had been purchased for a sum of Rs.7000/- and had been allotted in favour of Mrs. Usha Gupta, the wife of the appellant.
d) That the appellant’s expenditures were as follows-
Electricity Rs.9223/-
LPG Gas Rs.3234/-
Education of Rs.7755/-
children
e) That the appellant’s two daughters had FDR worth
Rs.10,000/- each in the bank.
Further, property worth Rs.1,37,215/- and Rs.10,000/- was recovered from the appellant’s residence and from the government accommodation allotted to the appellant respectively. On the basis of these facts, inter alia, it was found that, during the check period, the appellant 4 had a total income of Rs.3,34,796/- and a total expenditure of Rs.6,31,138/-. Therefore, it was found that the appellant was in possession of disproportionate assets amounting to Rs.2,97,138/- and that the appellant had been unable to give an adequate explanation of the source of this wealth.
4. Subsequently, the investigation was completed and on receipt of the sanction for prosecution, a charge-sheet was filed before the Trial Court. Thereafter, a charge was framed against the appellant for the offence under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, “the Act”) to which the appellant pleaded not guilty. Consequently, the case was committed to trial.
5. The prosecution examined 34 witnesses and produced 79 documents. The appellant’s statement was recorded under Section 313(1)(b) of the Code of Criminal Procedure (for short, “the Code”) wherein he stated that he had been falsely implicated. The appellant examined 4 witnesses.
6. The Trial Court considered the evidence on record as also the arguments of the parties and observed that there was no evidence on record to prove that the appellant had 5 misused his official position to acquire the three shops owned by him and that the same had been transferred via valid orders; that the prosecution had miscalculated the amounts paid by the appellant for obtaining Plot Nos.197 and 197-A; that the prosecution had wrongly estimated the value of the items recovered from the appellant’s house as Rs.1,37,215/- and that the value of the same was, in reality, Rs.1,38,735/-.
7. The court noticed that, admittedly, the appellant’s three nephews and their family were residing with him as a joint family; that Mr. R.P. Gupta, Mr. Ranjan Gupta, Mr. Rajesh Gupta (the appellant’s nephews) and Mrs. Vinita Gupta (DW-2, wife of Mr. Ram Prasad Gupta) were also contributing to the total family income. Further, certain articles listed in the Panchnama, with a total value of Rs.54,250/-, did not belong to the appellant and, therefore, could not be included in his total expenditure. The Court observed that the evaluation report filed by PW-6 regarding value of the appellant’s residence built on Plot No.197 was not credible and had wrongly estimated the value of the house as Rs.3,38,000/- and that the evaluation conducted by DW-1 was credible 6 and the value of the said house was, in fact, Rs.2,60,000/-. Further, the ornaments recovered from the appellant’s residence, worth Rs.13,830/- were Mrs. Usha Gupta’s stridhan and had not been purchased from the appellant’s income. The prosecution had exaggerated the value of the television set and other such articles recovered from the appellant’s house by about Rs.15,000/- and had erred in not accounting for the fact that Mrs. Usha Gupta had, over the course of 18 years, received about Rs.50,000/- in cash and kind from her father.
8. Therefore, the Trial Court concluded that the prosecution had wrongly calculated the appellant’s income and expenditure as Rs.3,34,796/- and Rs.6,31,979/- respectively and that the appellant’s income and expenditure were, in actuality, Rs.4,23,179/- and Rs.3,81,459/- respectively. The Court further observed that the investigation against the appellant was not credible and impartial. Therefore, by its judgment and order dated 18.11.1996, the Trial Court acquitted the appellant.
9. Aggrieved by the order of acquittal passed by the Trial Court, the respondent-State approached the High 7 Court on the grounds, inter alia, that the Trial Court had erred in holding that the total expenditure of the appellant was only Rs.3,81,459/- and that the Trial Court had failed to take certain presumptive expenses into account.
10. By the impugned judgment and order, the High Court re-appreciated the entire evidence on record and concurred with the Trial Court’s findings for the most part. However, the High Court, after accounting for factors such as the value of the gas connection at the appellant’s residence and the contributions of DW-2 and DW-3 to the family income, re-calculated the total income and expenditure of the appellant as Rs.4,56,379/- and Rs.3,78,225/- respectively. The Court further observed that the Trial Court had failed to take into account presumptive expenses such as clothing, conveyance expenses, electricity bill, ration, etc. and that the same would amount to Rs.1,26,913/- (30% of the total income). The total expenditure of the appellant was therefore increased to Rs.5,15,138/-. The Court, after deducting from the total expenditure of Rs.5,15,138/-, the total income which was taken to be Rs.4,41,312/-, 8 found that the appellant was in possession of disproportionate assets amounting to Rs.63,826/-. The Court further allowed the appellant a rebate of Rs.44,132/- (10% of the total income) and concluded that he was in possession of disproportionate assets amounting to Rs.19,694/-. Therefore, vide the impugned judgment and order, the High Court convicted the appellant for the offence under Section 13(1)(e) read with Section 13(2) of the Act and sentenced him to simple imprisonment for a period of one year and a fine of Rs.10,000/-.
11. Aggrieved by the judgment and order passed by the High Court, the appellant is before us in this appeal.
12. We have heard learned counsel for parties to the lis.
13. Learned counsel for the appellant would submit that the High Court has erred in adding presumptive expenses amounting to 30 per cent of the total income of the appellant to the appellant’s total expenditure and that there is no evidence on record to support this conclusion. Per contra, learned counsel for the respondent-State would support the judgment and order passed by the High Court.
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14. After carefully perusing the evidence on record, including the judgments and orders passed by the Courts below, we are of the view that the order of acquittal passed by the Trial Court was well-reasoned and suffered from no infirmity and that the High Court has erred in setting aside the same. The High Court has added presumptive expenses amounting to Rs.1,26,913/- (30 per cent of the total income) to the total expenditure of the appellant and thereby concluded that the appellant was in possession of disproportionate assets. However, there is no evidence on record regarding presumptive expenses. It is a settled principle of law that, in order to draw an inference that a fact in dispute has been established, there must exist on record some material facts, whether direct or circumstantial, from which such an inference can be reasonably drawn. In the present case, there is no evidence on record that would support the High Court’s conclusion that presumptive expenses ought to be added to the appellant’s total expenditure or that such presumptive expenses would amount to 30 per cent of the appellant’s total income. Therefore, the High Court has erred in adding these presumptive expenses to the 10 appellant’s total expenditure and thereby concluding that the appellant was in possession oft disproportionate assets.
15. In light of the aforesaid, it is our considered opinion that the impugned judgment and order passed by the High Court be set aside and the well reasoned judgment and order passed by the Trial Court be restored. Accordingly, while allowing this appeal, we set aside the judgment and order passed by the High Court and restore the judgment and order passed by the Trial Court.
16. The appellant is on bail. His bail bonds are discharged.
Ordered accordingly.
..............CJI.
(H.L. DATTU) ................J. (ARUN MISHRA) NEW DELHI, SEPTEMBER 08, 2015.
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ITEM NO.18 COURT NO.1 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1906/2009
PHOOLCHAND GUPTA Appellant(s)
VERSUS
STATE OF M.P. Respondent(s)
(with office report)
Date : 08/09/2015 This appeal was called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN MISHRA For Appellant(s) Kanwal Choudhary, Adv.
Mr. Pradeep Kumar Bakshi,Adv.
Mr.Kushagra Pandit, Adv.
For Respondent(s) Mr.Arjun Garg, Adv.
Mr.Mishra Saurabh, Adv.
UPON hearing the counsel the Court made the following O R D E R The appeal is allowed and the judgment and order passed by the High Court is set aside and the judgment and order passed by the Trial Court is restored, in terms of the signed order.
(G.V.Ramana) (Vinod Kulvi)
AR-cum-PS Asstt.Registrar
(Signed order is placed on the file)