Delhi District Court
In Re vs Mumtaz Afzal Beg on 15 July, 2011
1
IN THE COURT OF SH. DHARMESH SHARMA
SPECIAL JUDGE-03 CBI NEW DELHI
CC No.17/2011
RC No.DAI2005A0003/CBI/ACB/ND
In re:
STATE (CBI)
VS
1. MUMTAZ AFZAL BEG.
S/O LATE MIRZA MOHD. AFZAL BEG
R/O DIII/1, DTYPE, DOORDARSHAN COLONY,
SHYAMLA HILLS, BHOPAL.
PERMANENT ADDRESS:
3 RAJBAGH, SRINAGAR, KASHMIR,
J & K.
2. ZULI HUMA BEG.
W/O MUMTAZ AFZAL BEG.
R/O 3 RAJBAGH, SRINAGAR,
KASHMIR, J & K.
Date on which charge sheet was filed 01.05.2007
Date on which charges were framed 28.02.2009
Date on which judgment was reserved03.06.2011
Date on which judgment was pronounced 05.07.2011
05.07.2011
APPEARANCES:
Mr. A.K.Mishra, Ld.Sr.PP for CBI.
Mr. Rajeshwar Singh, Advocate for the accused.
JUDGMENT
1. Accused Mumtaz Afzal Beg s/o late Mirza Mohammed Afzal CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.1/22 2 Beg (A1) has been arraigned for trial by the State (CBI) for having been found in possession of assets disproportionate to his known sources of income. This case is an off shoot of a bribery case vide RC No. 1 (A) 2002, SIUVIII/CBI/New Delhi pursuant to which searches were conducted at the office and residence of the A1 and subsequently on the complaint of the Investigating Officer this disproportionate assets (D.A.) case was registered.
2. It is stated that A1 was born on 30.03.1953 in Jammu & Kashmir and joined Doordarshan Kendra, Srinagar as Production Assistant w.e.f. 22.02.1977 and worked his way up in the service career and during the relevant time was working as Assistant Controller of Programme, Kashmir Cell at DG Office, Doordarshan, Mandi House, New Delhi from 23.10.2000 to 03.01.2002. A1 was married to Smt. Zuli Huma Beg (A2) in 1982 and the couple have a daughter named Ifraah Mumtaz. It is further revealed that father of the accused was in active politics and had been Cabinet Minister and Deputy Chief Minister on different occasions in various Governments of Jammu & Kashmir from 1944 to 1978 and died in the year 1982; that his mother was a house wife who died in 1981; and his father in law G.R.Khan retired as Addl. Secretary to Govt. of J & K in the year 1984 drawing pension of Rs.9,000/ per month.
3. It is alleged by the State (CBI) that during searches it was CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.2/22 3 found that large sums of cash money were deposited as on 31.12.2001 in three bank accounts maintained with Standard Chartered Grindlays Bank Ltd, New Delhi totalling Rs.22,73,123/ besides cash amount of Rs.53,400/was also seized at the time of raid; that it was further revealed that A1 had acquired plot in Srinagar in the name of his wife (A2) and constructed a house with garrage which was completed in 1987 and that he had been maintaining four LIC Policies in his own name and also LIC Policies in the name of his family members. The check in period has been taken from 30.06.2000 to 04.01.2002 . The details of income and other receipts during the check in period were found as under :
(a) Pay and allowances received by Sh. M.A. Beg Rs.2,89,823/ from 30.06.2000 to 31.12.2001
(b) Bank interest received by M.A.Beg Rs.3,334.78/
(c) Bank interest received by Smt. Zuli Huma Beg, Rs.8,284.49/ wife.
(d) Refund from LIC in favour of Smt. Zuli Huma Beg Rs.25,000/ in respect of policy no.140426786.
Total Rs.3,17,442.27/
4. The expenditure during the check in period were found as under :
1. Premium of LIC Policy no.130429632 in the Rs.8630/ name of Mumtaz Afzal
2. Premium of LIC policy no.140426786 in the Rs.19,160/ name of Mrs. Zuli Huma Beg.
3. Premium of LIC policy no.140227599 in the Rs.10095/ CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.3/22 4 name of Mumtaz Afzal.
4. Premium of LIC Policy no.140851321 in the Rs.84,762/ name of Ifrah Mumtaz Beg.
5. Premium of LIC Policy No.140950035 in the Rs.19030/ name of Mumtaz Afqal.
6. Premium of LIC Policy no.140564542 in the Rs.15530/ name of Mumtaz Afzal.
7. Fees paid to Presentation Convent School. Rs.9150/
8. Telephone bill paid Rs.4276/
9. 1/3rd of salary i.e. Rs.2,80,823/ x 1/3 Rs.93,607.66/
10. Total Rs.264240.66/
5. It is further the case of the prosecution that A1 had assets to the tune of Rs.5,97,964.35p at the beginning of the check in period; and that father of accused distributed two kanal land each to him and his brother and out of these two kanals he sold one kanal to his brother for Rs.5 lakhs and used the money for construction of his house and remaining only one kanal had been reflected in the statement I to VI submitted by A1. Suffice to state that benefit of house hold articles worth Rs.11,500/, jewellery in locker worth Rs.30,000/ was given to A1 and his wife A2 and the total movable and immovable at the beginning of the check in period was found as under : Bank Balances:
SB A/c No. 23578990 in the name of MA Beg at Rs.11633.27/ Standard Chartered Grindlays Bank Ltd. SB A/c No. 28520008 in the name of Mrs. Zuli Rs.21,860.08/ Huma Beg (wife of MA Beg) at Standard Chartered Grindlays Bank Ltd.
A/c No.4071in the name of Mumtaz Afzal Beg Rs.10,107/ CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.4/22 5 at J&K Bank, Air Cargo, Srinagar.
A/c no.21274 in the name of Zuli Huma Beg at Rs.7,864/ J&K Bank, Amira Kadal Branch, Srinagar. Construction cost as per form I to VI Rs.5,00,000/ Cash Certificate no.08065 in favour of Rs.5,000/ Mumtaz Afzal Beg.
Jewellery before check period Rs.30,000/
House hold articles Rs.11,500/
Total Rs.5,97,964.35p
6. The case of the State (CBI) is that A2 and their daughter Ifraah were not having any independent source of income and thus financially dependent upon A1 and therefore, the amount deposited in three bank accounts mentioned above had been attributed to the accused besides cash of Rs.53,400/found at the time of search on 04.01.2002 and jewellery tentatively valued at Rs.1,33,000/ recovered from the locker as per the observation memo allegedly acquired during the check period. The computation of disproportionate assets held by the two accused persons have been worked out as under :
1. Income during the check period (30.06.2000 to Rs.317442.27p 04.01.2002
2. Expenditure during the check period Rs.264249.66p
3. Likely savings during the check period (12) Rs. 53201.61p
4. Assets acquired at the end of the check period Rs.
1596217.54p
5. Assets before the check period Rs .597964.35p
6. Assets acquired during the check period (45) Rs. 998253.19p
7. Disproportionate Asset (63) Rs. 945051.58p CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.5/22 6
8. Percentage of disproportion (7 x 100) : 1 =(945051.58 x 100) : 317442.27 =297.1%
7. It is the case of the prosecution that accused have not been able to satisfactorily account for the aforesaid disproportionate assets to the tune of Rs.9,45,051.58/ as on 04.01.2002 and after obtaining sanction for prosecution against A1 as per Section 19 of the Prevention of Corruption Act(hereinafter referred as the PC Act), they have been arraigned for trial for committing offence punishable under Section 13 (2) r/w 13 (1) (e) of the Prevention of Corruption Act, 1988 r/w Section 109 IPC.
CHARGE
8. Needless to state that A1 has been charged for having assets disproportionate to the known sources of income to the tune of Rs.9,45,051.58 during the check in period w.e.f. 30.01.2000 to 04.01.2002 as per Section 13 (1)(e) r/w 13 (2) of the P.C.Act, 1988 and A2 has been charged for having abated the commission of offence under Section 13 (1)(e) of PC Act r/w Section 109 IPC. Both the accused pleaded not guilty to the charges and claimed trial.
PROSECUTION EVIDENCE
9. PW1 Pawan Kumar was working as LDC in the Vigilance Section of D.G.Doordarshan. He deposed that letter Ex.PW1/A CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.6/22 7 was given to him by Shri S.K.Rabbani, Vigilance Officer, which letter alongwith documents were taken by him to the office of CBI and handed over to the CBI Officer in a sealed cover.
10. PW2 was NN Chakraborty. He was working as Assistant in Ministry of Urban Development. He joined the CBI team while conducting the raid at the house of the accused persons on 04.01.2002 and the witness deposed about the searches and investigation conducted in his presence and deposed being a signatory to the search list Ex. PW2/A that interalia evidenced recovery of cash amount of Rs. 53,400/and deposed being a witness to the observation memo Ex.PW2/B whereby the details of household items were recorded. PW3 Rajesh Kumar, a UDC in CPWD was another witness examined on the same point.
11. PW4 was Shri SK Rabbani, Vigilance Officer in Doordarshan, New Delhi. He deposed that on the request of CBI, he collected the statement of salary of A1 and such details Ex.PW4/A to Ex.PW4/F were sent in a sealed cover with a covering letter Ex.PW1/A to the CBI Office and he also proved the service book of A1 which is Ex.PW4/G.
12. PW5 was Rajesh Kumar Bhatt, an Administrative Officer from LIC. He deposed about the LIC policy in the name of Ms. Ifraah minor daughter of the accused persons starting w.e.f. 01.04.1997 for an annual premium of Rs.7765/ and proved the CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.7/22 8 relevant policy documents Ex.PW5/A to PW5/C.
13. PW6 was Mohd. Mushtaq Peer, Assistant Cashiercum Clerk, J&K Bank, Upper Suthoo, Srinagar, J & K. He deposed that in August, 2006 locker no. C20 belonging to A2 was searched in his presence and the contents of the same were noted down in memo ExPW6/A.
14. PW7 was Inspector Anand Swaroop of ACB, CBI, New Delhi. He deposed about supplying a copy of the FIR No. RC S18 2002 E 001 of this case Ex.PW7/A alongwith certified copy of search list Ex.PW2/A and observation memo Ex.PW2/B.
15. PW8 was Inspector C.B.Ojha of SCU - IX, CBI. He deposed that investigation of this case was assigned to him as per FIR Ex.PW8/A and during investigation he seized some documents from the Assistant Manager, Standard Chartered Bank, Sansad Marg, New Delhi as per memo Ex.PW8/B.
16. PW9 was R.C.Sharma of BS&FC, CBI, New Delhi . He was posted as inspector in ACB, CBI during the relevant time and took over the case from Inspector Umesh Vashist and deposed that he obtained sanction for prosecution of the accused and prepared the charge sheet and filed the same in the court.
17. PW10 was Prabhas Kumar, an Officer of Standard Chartered Bank, Bahadur Zafar Marg, ITO deposed about the certified statement of two bank accounts in the name of A1 and his wife CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.8/22 9 A2 ExPW10/B to Ex.PW10/C respectively supplied vide convering letter Ex. PW10/A and that the balance in the account of A2 had been transferred to J & K Bank, Srinagar on 31.12.2001.
18. PW11 Basharat Ahmed Wani was Branch Manager of J & K Bank, Mira Kadal, Srinagar, J & K. He deposed about handing over the certified copy of statements to CBI Officer in respect of certain FDRs in the name of G.R.Khan including one FDR in the name of Ms. Ifraah (minor) besides account opening form, signature cards etc to the CBI that are Ex. PW11/A to pw 11/E. Suffice to state that he deposed about amount of the FDR, date of subscription and its maturity dates.
19. PW12 was M.J.Polson, Clerk from Presentation Convent High School, Raj Bagh, Sri Nagar, J & K. He produced school record of Ifraah Mumtaz and the details of the tuition fees from February 2000 to 31.12.2001 as per the documents Ex.PW12/A to Ex.PW12/C.
20. PW13 was Shri B.SD.Lali, CEO of Prasar Bharti, New Delhi. He deposed about the steps and the decision taken by him for granting sanction for prosecution against accused (A1) as per order Ex.PW13/A.
21. PW14 was Ashok Kumar Malik, an Assistant from LIC, Unit1, Regal Chowk, Srinagar. He deposed about the insurance policies that were subscribed by accused persons which are CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.9/22 10 Ex.PW14/A to Ex.PW14/M and PW18 was Mst. Shafiqua Rashid from LIC who also deposed about the LIC policies which I would certainly reflect later in this judgment.
22. PW15 was Kesar Ahmed working as Manager in J & K Bank,BSNL Road, Sri Nagar, J & K, who deposed about handing over certain documents to the I.O. pertaining to another bank accounts of Mumtaz Afzal Beg vide covering letter Ex.PW15/A and Ex.PW15/B that are Ex. PW13/C besides account opening form and signature card Ex. PW13/D & E.
23. PW16 was Ali Mohd. Wagay, a Senior Accounts Officer of BSNL, Exchange Road, Sri Nagar, whereby the telephone records of the accused and the bills against such telephone numbers were seized which documents are Ex.PW16/A to Ex.PW16/G for the period 30.06.2000 to 31.12.2001..
24. PW17 was Inspector Umesh Vashist who deposed about the investigation carried out by him in this case. STATEMENT OF ACCUSED PERSONS
25. After conclusion of the prosecution evidence, the two accused were separately examined as per Section 313 Cr.PC. On putting the incriminating evidence and circumstances brought on the record, both the accused persons claimed innocence and submitted that they have been falsely implicated in this case. DEFENCE EVIDENCE CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.10/22 11
26. In their defence, they have chose to examine Gulam Rasool Khan i.e. father in law of A1 and father of A2 as DW1 who deposed that he was having independent income on account of his pension, legal practice and earnings from production of his films and teleserials for J & K Doordarshan and he used to deposit his earnings in the bank account of his daughter A2. ARGUMENTS
27. I have heard Ld.Sr.PP for the State and Ld.Counsel for the accused persons. I have meticulously gone through the relevant record of the case.
LAW
28. Section 13 (1) (e) of the PC Act provides as under:
Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation: For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
29. Thus, in order to prove the charge u/s 13 (1) (e), the CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.11/22 12 prosecution has to show:
i). The accused is a public servant;
ii). The nature and extent of pecuniary resources or property found in his possession or any person on his behalf;
iii). His known sources of income i.e known to the prosecution;
iv). such resources or properties found in possession of the accused were disproportionate to his known sources of income;
v). once the aforesaid ingredients are established by the prosecution, the burden of proof shifts on the accused to satisfactorily account for possession of disproportionate assets by way of preponderance of probability, as laid down by the Supreme Court in the case of State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, AIR 1981 SC 1186.
REASONS
30. In the light of the said position in law, adverting to the present case, there is no issue that A1 during the relevant time was working as Assistant Control Programmer Cell, Doordarshan, New Delhi and was a public servant. The sanction for prosecution Ex.PW 13/A as per Section 19 of the PC Act was granted by the Chief Executive Officer, Prashar Bharti & Disciplinary Authority which has not been assailed in any manner nor there is anything to suggest that any irregularity, error or omission occurred in the grant of Sanction thereby causing any prejudiced to the accused or resulting in miscarriage of justice.
31. In so far as ascertaining the known source of income and CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.12/22 13 properties of A1 is concerned, there is no challenge to the salary details which are reflected in detailed statement Ex.PW 4/A to Ex.PW 4/F and it is clearly brought out that during the check in period i.e 30.06.2000 to 04.01.2000 the pay and allowance received by A1 were to the tune of Rs. 2,80,823/. It is in evidence that A1 was having a bank account with Standard Chartered Grindlay Bank, Sherwani Road, Srinagar bearing no. 28578990 and the interest that was accrued and credited in his account during the check in period as per statement Ex.PW 10/C in addition to credit PW13/C in the J & K Bank, Air Cargo, BSNL Road, Sri Nagar, J & K,was totalling Rs. 3,334.78. Similarly, it is in evidence that A2 was having an account in the Standard Chartered Grindleys Bank, South Extension, M1, PartII, Delhi bearing no. 28520008 and during the relevant time as per statement Ex.PW10/B the interest accrued and credited in her account was Rs. 8284.49. Further, it comes out that refund of Rs. 25,000/ in respect of LIC policy no. 140426786 in favour A2 is also added in the "known sources of income" as she was not having any independent income of her own and financially dependent on her husband i.e A1.
32. In regard to the expenditure incurred during the check in period, the prosecution has assessed the amount spent on payment of insurance policies for A1 viz.,no. 140429632 in the CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.13/22 14 sum of Rs. 8,630/ proved by the details in the document Ex.PW18/A and 14/F; LIC Policy No. 140227599 for Rs.10,095/ proved by the details in the document Ex.PW14/H, LIC Policy No. 140950035 for Rs.19030/proved by the details in the document Ex.PW14/L and also proved vide LIC Policy No. 140564542 for Rs. 15530/ proved by the details in the document Ex.PW14/M and the prosecution has also assessed annual premium of Rs.7765/ the status report of which is Ex.PW 5/A and the details of premium given in the statement Ex.PW 5/B in the name of minor daughter Ifraah Mumtaz.
33. The State (CBI) has also assessed the insurance premium of Rs.19,160/ vide policy no. 140426786 Ex.PW 4/G in the name of A2 besides payment of premium of Rs. 86,762/ for LIC policy no. 140851321 in the name of minor Ms. Ifraah Mumtaz Ex.PW 14/J and Ex.PW 14/K. Further, tuition fee in respect of miner daughter Ms. Ifra for the check in period to the tune of Rs. 9150/ has been proved as per evidence of PW 12 which statement is Ex.PW 12/A and also the telephone bill paid by the accused A1 during the relevant time to the tune of Rs. 4276/ and taking into consideration further deduction of 1/3rd of the salary amount, the prosecution is sufficient able to show beyond doubt that the total expenditure within the check in period Rs. 2,64,140.66p and thereby leaving savings of Rs. 53,201.61P. CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.14/22 15
34. Suffice to state that so far as the assets at the beginning of the check period is concerned, there is no dispute by the accused persons that the known sources of such assets and its value come about Rs.5,97,964.35. In assessing the assets at the beginning of the check period, the State (CBI) has taken into consideration the amounts standing to the credit of the accused persons, the cost of construction of their house, jewellery household articles etc.
35. Before I advert to the issue of disproportionate assets in the hands of the accused persons at the end of the check in period, I must state at the outset, that it appears that G. R. Khan father in law of A1 and father of A2 retired as Additional Secretary, Government of Jammu and Kashmir was drawing pension besides having income from practicing as a Legal Consultant and probably also deriving some income form production of films or tele serials. The amount of the 4 FDRs in the name of G. R. Khan each for more than Rs. 50,000/ each the details of which were found at the time of search of the locker in the name of A2 with Jammu and Kashmir Bank Branch, Mira Kedal Sri Nagar cannot be attributed to A1. There is only one FDR in the name of minor daughter Ms. Ifraah with initial amount of Rs. 5022/ subscribed on 14.06.2001 i.e within the check in period that can alone be attributed to A1. It may be indicated that initially the case of the prosecution was that the 4 FDRs were illegal gotten money or CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.15/22 16 disproportionate assets in the hands of A1 but such case has not been espoused during the trial nor any evidence is brought forth that such FDR were held benami by G. R. Khan for A1 or for that matter A2.
DISPROPORTIONATE ASSETS
36. In regard to the disproportionate assets during the check in period w.e.f. 30.06.2000 to 04.01.2002, the whole case of the State (CBI) is based on several cash deposits in the bank account of A1 and A2 during the check period, the certified copies of the statements of which as per the Bankers Book of Evidence Act, have been proved as Ex.PW10/B and Ex.PW10/C respectively. Both the accused admitted in their statement u/s 313 Cr.P.C. that they were maintaining the said bank accounts. In order to appreciate the prosecution case, it would be expedient to refer to the statement Ex.PW10/B running into 13 sheets regarding the the cash deposits that are as under:
Date Amount
31.07.2000 Rs.1,00,000/
14.05.2001 Rs.65,000/
31.05.2001 Rs.1,00,000/
31.05.2001 Rs.33,000/
15.06.2001 Rs.15,000/
16.06.2001 Rs.15,000/
16.06.2001 Rs.10,000/
03.07.2001 Rs.30,000/
CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.16/22
17
04.07.2001 Rs.25,000/
05.07.2001 Rs.35,000/
14.07.2001 Rs.25,000/
16.07.2001 Rs.20,000/
19.07.2001 Rs.16,000/
19.07.2001 Rs.25,000/
31.07.2001 Rs.20,000/
02.08.2001 Rs.35,000/
21.08.2001 Rs.45,000/
22.08.2001 Rs.50,000/
25.08.2001 Rs.35,000/
01.09.2001 Rs.16,000/
Total Rs.7,15,000
Similarly, on perusal of the statement Ex.PW10/C vide account no. 28520008 in the name of A2 running into 14 sheets, the following scenario emerges regarding the cash deposits: Date Amount 19.05.2001 Rs.8,000/ 01.06.2001 Rs.7,000/ 07.06.2001 Rs.7,000/ 02.08.2001 Rs.1,00,000/ 18.09.2001 Rs.2,00,000/ 17.11.2001 Rs.1,00,000/ 17.11.2001 Rs.50,000/ 18.11.2001 Rs.48,000/ 27.11.2001 Rs.2,00,000/ 28.12.2001 Rs.1,50,000/ 31.12.2001 Rs.1,00,000/ Total Rs.9,70,000/ CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.17/22 18
37. Exfacie the cash deposits reflected in the statements Ex.PW10/B and Ex.PW10/C in the name of A1 and A2 respectively have not been satisfactorily accounted for by the accused persons. There is no explanation whatsoever about the source or reason of such huge cash deposits in their bank accounts. There was no source of income for the accused persons except for the salary income in the hands of A1. Though accused persons in their statement under Section 313 Cr.PC. supported by evidence of DW1 G.R.Khan attempted to put forth that DW1 while working as the producer of films/teleserials received a payment of Rs.8,40,000/ vide document Ex.D.W.1/B and also was released a bank guarantee of Rs.2,80,000/ vide document Ex.DW1/D by Doordarshan, Srinagar, I am afraid the defence plea that such amount used to be deposited by DW1 in the account of his daughter A2 from time to time is not credible and absolutely uninspiring.
38. First of all, the originals of documents Ex.DW1/B and Ex.DW1/D indicated above have not been produced and the same are mere photo copies. The payment of Rs.2,80,000/ vide document Ex.DW1/D appears to have been received on 21.07.1999. The statement Ex.DW10/B and Ex. PW10/C do not reflect in any manner that such amount was deposited by CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.18/22 19 DW1 in the account of his daughter A2 or for that matter his son in law A1. Even if the defence argument is accepted that Rs.8,40,000/ were received on 11.04.2000, again it is difficult to discern that such amount was deposited wholly or in part from time to time in the bank accounts of accused persons. No counterfoils or payinslips were produced by DW1 to prima facie show that he was depositing such amount in the bank account of accused persons from time to time. Indeed DW1 was having independent sources of income but there is no substantial or credible evidence on the record that DW1 was regularly depositing some amount or the other in cash in the bank accounts of the accused persons. It goes without saying that DW1 has also not shown or filed any income tax returns in regard to his income during the relevant time.
39. Lastly, it is in evidence that at the time of conducting search of the house of A1, in the presence of A2 and DW1 G.R.Khan cash amount of Rs.53,400/ was also recovered seized vide memo Ex.PW2/A . There is not even a whisper in the testimony of DW1 that the said amount of money belonged to him. The accused has also not accounted for the jewellery as such but on that I would render him benefit of doubt as the prosecution has failed to lead any evidence that the same were purchased or acquired during the check CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.19/22 20 period. It may be indicated that during the search of the locker no.20C in the name of A2 out of 950 gms of jewellery seized vide memo Ex.PW6/A, the following items were alleged to have been purchased during the check period :
(i). One gold necklace with ear jhumkas weighing 50 gm. purchased for Rs.30,000/.
(ii). One gold necklace with jhumkas weighing 30 gm. purchased for Rs.18,000/.
(iii). One gold necklace with tops weighing 30 gms purchased for Rs. 18,000/.
(iv). One gold necklace with jhumkas weighing 30gm. Purchased for Rs.30,000/.
(v). One gold chain male weighing 40gm. purchased for Rs. 24,000/.
(vi0. Six numbers of gold bangles weighing 80gm. Purchased for Rs.25,000/.
40. In the final analysis, the status of the bank accounts and the money recovered at the time of search on 04.01.2002 implies that there was addition of assets to the tune of Rs.17,38,900/ (Rs. 9,70,000+Rs. 7,15,000+ 53,400 ) de hor the purchase of jewellery and in view of the fact that A2 was not having any independent source of income, the disproportionate assets in the hands of A1 after deducting the likely savings of Rs.53,201/comes to the tune of Rs.16,85,699/ that comes to 531 % approx. (16,31,799/ X 100 ) Rs.317442.27 to thte known sources of income.
41. Alternatively, in so far as the cash deposits in the bank account of A1 is concerned, the statement of account Ex.PW10/C also indicates that soon after deposit of cash, large CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.20/22 21 sums were debited in his account from time to time in regard to payments by cheques and at the end of 31.12.2001, the credit balance standing to the account of A1 was Rs.78,046.90. The accused has not accounted as to how and in what manner the cash deposits were applied and the inference is that the money was being laundered around. Assuming for the sake of convenience that the credit balance alone is taken into consideration in addition to the credit balance standing in the account of A2, it comes to Rs.10,48,046/(9,70,000+78,046) besides recovery of cash of Rs, 53,400/ and after deduction of likely savings the disproportionate assets comes to Rs.9,94,845/, which comes to 313 % of the known sources of income (Rs. 9,94,845 X 100) / 3,17,442/.
FINAL VERDICT
42. I, therefore, conclude that the State (CBI) has been able to prove beyond reasonable doubt that accused Mumtaz Afzal Beg (A1) was having assets disproportionate to his known source of income during the check in period 30.06.2000 to 04.01.2002 to the extent of 531 or 313 % over his known sources of income, as the case may be, and thereby A1 misconduct himself within the meaning of Section 13 (2) r/w 13 (1)(e) of the P.C.Act. In so far as accused Zuli Huma Beg (A2) is concerned, the prosecution is also able to bring home the circumstances to raise an inference CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.21/22 22 that she was intentionally and actively engaging with her husband A1 in aiding, abetting, shielding or assisting him in illegal holding and laundering of money through her account.
43. In the said view of the matter, the accused Mumtaz Afzal Beg is convicted under Section 13 (2) r/w 13 (1)(e) of the PC Act, 1988 and accused Zuli Huma Beg is convicted u/section 109 of I.P.C read with Section 13 (2) r/w 13 (1)(e) of the PC Act, 1988.
44. Let they be heard on the point of sentence on 15.07.2011.
ANNOUNCED IN OPEN COURT TODAY: ON 05.07.2011.
(DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.22/22 23 IN THE COURT OF SH. DHARMESH SHARMA SPECIAL JUDGE-03 CBI NEW DELHI CC No.17/2011 RC No.DAI2005A0003/CBI/ACB/ND In re:
STATE (CBI) VS
1. MUMTAZ AFZAL BEG.
S/O LATE MIRZA MOHD. AFZAL BEG R/O DIII/1, DTYPE, DOORDARSHAN COLONY, SHYAMLA HILLS, BHOPAL.
PERMANENT ADDRESS:
3 RAJBAGH, SRINAGAR, KASHMIR, J & K.
2. ZULI HUMA BEG.
W/O MUMTAZ AFZAL BEG.
R/O 3 RAJBAGH, SRINAGAR, KASHMIR, J & K. 15.07.2011 APPEARANCES: Mr. A.K.Mishra, Ld.Sr.PP for CBI.
Mr. Rajeshwar Singh, Advocate for the accused. Order on the point of sentence.
29. Heard on the point of sentence and perused the record.
30. Mr. Rajeshwar Singh, ld.counsel for both the convicts submits that convict Mumtaz Afzal Beg is 59 years of age and is CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.23/22 24 reaching the age of superannuation and after this judgment he would not be entitled to seek any retirement benefits from his department. It is urged that the convict Mumtaz Afzal Beg has been suffering from Neurological disorder for the last five years and has been under regular treatment from Sir Ganga Ram Hospital, New Delhi.
31. As regards convict Mst. Zuli Huma Begam, it is urged by ld. defence counsel that she is about 54 years of age and has been suffering from acute back pain and other female ailments. So much so that she has been exempted from her personal appearance during the trial. It is urged that the convicts have a daughter namely Ms. Ifrah who is going to be about 18 years of age and is studying in Dehradun and the parents will find it extreme difficulty to arrange for the marriage of their daughter. It is also urged that Mr. G. R. Khan father in law of Mumtaz Afzal Beg is about 84 years of age and is suffering from various old age ailments and his daughter convict Zuli Huma Beg has been taking care of him in his old age. It is alleged that the convicts have suffered agony of trial for the last six years and it is requested that the convicts be released on probation.
32. Per contra, Mr. A.K. Mishra, Ld. Sr. PP for the CBI has urged that mitigating circumstances exceed in this case so as to take a lenient view in favour of the convict and it is vehemently urged CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.24/22 25 that the Probation of Offenders Act cannot be accepted to cases under the Prevention of Correction Act.
33. It bears repetition that the convict Mumtaz Afzal Beg and his wife Zuli Huma Beg have failed to account about the huge deposit of cash in their bank accounts Ex.PW 10/B and Ex.PW 10/C during the check period and the assets which are disproportionate to the known sources of income. There have been shown no mitigating circumstances which might invite the indulgence of this court to take a lenient view in favour of the convicts.
34. Section 13 (1) (e) of the PC Act is a special provision which deals with ill gotten money amassed by a public servant and the inference that is drawn is that a public servant must have indulged in corrupt activities and thereby evading the faith of the public in the system of governance in the concerned department. Nothing has been urged that the convicts are suffering from any serious kind of ailments. So far as, convict Zuli Huma Beg is concerned, I am inclined to take a lenient view since being a woman of a conservative kind of a family she had no option but to comply the wishes of her husband in laundering ill gotten money from corrupt activities.
35. I therefore, sentence the convict Mumtaz Afzal Beg to undergo rigorous imprisonment for a period of three years u/s 13 CC No.17/2011 CBI v. Mumtaz Afzal Beg etc. Page No.25/22 26 (1) (e) read with Section 13 (2) of the PC Act and also impose a fine of Rs. 25,000/ ; in default, to further undergo RI for a period of six months.
36. So far as convict Zuli Huma Beg is concerned, considering that being a woman of a conservative kind of family, she had no option, but to obey the wishes of her husband. I, sentence the convict Zuli Huma Beg to undergo Simple Imprisonment for a period of one year u/s 109 IPC read with Section 13 (2) r/w 13 (1)
(e) of the PC Act, 1988 and also impose a fine of Rs.10,000/, in default, to further undergo SI for a period of three months.
File be consigned to record room.
ANNOUNCED IN OPEN COURT TODAY: ON 15.07.2011.
(DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
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