Jammu & Kashmir High Court - Srinagar Bench
Ghulam Ali Dar vs State Of J&K; & Others on 5 October, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
...
CRA no.06/2011 Date of order: 05.10.2018 Ghulam Ali Dar v.
State of J&K and another Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge Appearing Counsel:
For Petitioner(s): Mr G. A. Lone, Advocate with Mr S.N.Ratanpuri, Advocate For Respondent(s): Mr N. H. Shah, AAG Whether approved for reporting? Yes
1. In this memo of Appeal is impugned the Judgement and Sentence dated 31st May 2011, passed by the learned Special Judge, Anticorruption, Kashmir (for brevity "Trial Court") against one, Ghulam Ali Dar son of Ghulam Nabi Dar resident of Kanji Gund Tehsil and District Anantnag -
appellant here, in connection with the case FIR no.101/1997. According to the appellant, the impugned judgement and sentence awarded by the learned Trial Court is not sustainable in the law.
2. The case set up by the appellant is that on the conclusion of the investigation in the case FIR no.101/1997, registered under Section 5 (2) read with Section 5(1)(e) of the Prevention of Corruption Act and Section 14 of the J&K Public Men and Public Servants Declaration of Assets and other Provisions Act, 1983, the case was referred by the Investigating Agency to the Government for grant of CRC no.06/2011 Page 1 of 70 sanction as the appellant was then working as the Executive Engineer in the Power Development Department. The Government issued sanction by the order no.33-GAD (Vig) of 1999 dated 7th April 1999. The case was thereafter put up for trial before the learned Trial Court. It is averred that the prosecution case, inter alia, rested on the ground that the appellant and his family was living a luxurious life, which was beyond the means of source of the income of the appellant and that the property acquired by the appellant was not reflected in the property statements. The investigation revealed that during the check period, viz. January, 1988 to December 1997, the total income of the appellant/accused from salary and other known sources of the income has been of the order of Rs.16,90,857/- while as during the investigation it was found that the appellant/ accused was in possession of the moveable and immoveable property worth Rs.27,33,738/- and has also incurred the expenditure of Rs.11,31,368/- on day-to-day basis and thus in possession of the disproportionate assets amounting to Rs.21,74,249/-. The appellant was also charge sheeted by the learned Trial Court on 26th September 2001. After conclusion of the trial, the learned Trial Court held the appellant guilty by the judgment dated 30th May 2006. The appellant preferred a Criminal Appeal, diarised and registered as Criminal Appeal no.05/2006 before this Court. The appeal was accepted and the judgement and the order of conviction was set-aside, and the case was remanded back to the learned Trial Court with a direction to frame afresh CRC no.06/2011 Page 2 of 70 charges against the appellant/accused, read and explain the same to him and allow the prosecution and the appellant/accused to re-examine the witnesses, already examined and allow the prosecution to examine any further witnesses, if material. In case the opportunity is availed by the prosecutor or by the accused, then further statement of the accused in terms of Section 342 of the Code of Criminal Procedure, be recorded. The appellant/accused be given an opportunity to examine the witnesses in the defence and thereafter conclude the case within a period of six months from the date of the judgement.
3. It is also averred in the appeal that the learned Trial Court, after the remand, framed the fresh charge sheet against the appellant/accused on 24th August 2009. The charge sheet framed by the learned Trial Court, as is maintained by the appellant in the appeal on hand, is at variance with the sanction granted by the Government against the appellant. In the sanction order there is no mention of recovery of any cash amount from the house of the accused, whereas in the charge sheet the amount stated to have been recovered from the possession of the accused during search is of the order of Rs.6,92,700/-. The charge sheet, according to the appellant, is therefore, invalid and illegal and has subjected the appellant to the grave prejudice. The appellant states that he submitted the list of a number of the witnesses to be produced before the learned Trial court for his cross examination. The learned Trial Court, however, was not able to conclude the trial within the time prescribed by this Court. The learned Trial CRC no.06/2011 Page 3 of 70 Court thereafter sought further extension of time on three different occasions, which was granted by this Court. The learned Trial Court has passed the impugned judgment convicting the appellant for offences punishable under Section 5(1) (e) read with Section 5(2) of the Prevention of Corruption Act and Section 14 of J&K Public Men and Public Servants Declaration of Assets and other Provisions Act, 1983, sentencing him to the imprisonment of two years and fine of Rs.6.00 lacs. The appellant has been held guilty for possessing the property beyond known sources of income. The learned Trial Court, as maintained by the appellant, has committed serious legal error in recording the conviction. The appellant was charged under Section 5(1)(e) of the Prevention of Corruption Act. The said provision relates to alleged disproportionate assets possessed beyond the known sources of the income by the accused. The well settled legal position is that if an accused satisfactorily explains the possession of the assets of the property, which the prosecution alleges to be disproportionate to the known sources of income, the offence falls through.
4. It is also stated by the appellant in the present appeal that the prosecution has taken the check period from January 1988 to December 1997. The properties stated to be owned and possessed by the accused and involved in the case are as follows:
(i) House at Rawalpora
(ii) Landed property at Nowgam, Kharpora and at Paloura Jammu
(iii) Moveable property in the shape of one Maruti Car and one Fiat Car
(iv) Cash seized during house search of the accused CRC no.06/2011 Page 4 of 70
(v) Pay cheques
(vi) Electronic gadgets, textiles and furniture items and other household items.
(vii) Wrist watches.
5. The appellant also maintains that he had tendered more than satisfactory explanation with regard to each and every item alleged against him. In the Annual Property Statements submitted by him from time to time before the competent authority, all the items constituting the subject matter of the investigation were duly reflected. At no stage the Government or any other competent authority doubted the genuineness or correctness of the statements made by the appellant in the Annual Property Statements. In fact, the case has been initiated by the Vigilance Organisation of its own, without any justifiable cause or information regarding the assets owned and possessed by the appellant, which could be said to be beyond the known sources of income. Insofar as the house at Rawalpora is concerned, the appellant has averred that the prosecution alleges that it is a 'benami' transaction having been wrongly shown to have been secured by the appellant from his sister while as the accused has directly purchased it from its original owner. The prosecution has, however, failed to produce any evidence to prove the 'benami' transaction alleged in respect of the house in question. The appellant has successfully proved that the house was purchased by him from his sister after sanction was obtained by him from the Government for purchasing the house. It was duly reflected by the appellant in his Annual Property Statement. The appellant had also CRC no.06/2011 Page 5 of 70 indicated the source of money against which he had purchased the house from his sister. According to the prosecution, the witness no.70, namely, Ghulam Jeelani Shah, calculations about the assessment of the house has been made by Mr Musthaq Ahmad Malik, who has not been produced as witness in the case. The arithmetical calculations have also been made wrongly, leading to a grave error in calculating the cost of the house at the higher side. The appellant has complied with the requirements of law as a Government servant by seeking the permission from the competent authority and by reflecting the house in the Annual Property Statements and also by indicating the source of income for purchasing the house. There was no further requirement to be complied with by the appellant in regard to the purchase of the house from his sister. The land situated at Nowgam measuring 03 Kanals 16 Marlas was shown by the appellant to have been purchased under the proper government sanction. The property was also reflected in the Annual Property Statement. The appellant had also shown the source of income so far as the land measuring 08 Kanals 16 Marlas at Kharpora, is concerned. This property was being reflected by the appellant right from the year 1971 when he joined the Government service. It is also asserted that the land at Paloura, Jammu, stated to be 13 Marlas in area, as per the prosecution version is neither owned by the appellant nor has this land been in possession of the appellant at any point of time. The prosecution has failed to prove both the elements of ownership and possession of the CRC no.06/2011 Page 6 of 70 land as that of the appellant/accused. The said property cannot be treated to be an asset of the appellant. Similarly, the appellant has proved during the course of the trial that the Maruti Car does not belong to him. The car is not registered in his name nor was it in his possession. Surprisingly, it was shown to be belonging to the appellant on the basis that at the time of the search of the house of the appellant at Rawalpora, the car was found parked in the front of the house. The car does not belong to the appellant nor is he a 'benami' owner of the car. The accused has furnished the explanation in regard to this during the trial. The car under Registration no.4033/JK01C belongs to the father of the appellant and the other car bearing registration no.2577/JK01 is the property of his mother as is fully reflected int the official record maintained in the office of the Regional Transport Officer. As regard the fiat car it is submitted by the appellant that it does not belong to him nor was it possessed by him at any point of time.
6. It is also maintained that during the course of trial, the appellant proved that the car does not belong to him. Qua the cash seized during the house search, the Government at the time of grant of sanction was convinced that the cash does not belong to the appellant and, therefore, did not make any mention of the seizure of the cash or its recovery from the possession of the appellant. The charge framed in this behalf is, therefore, untenable and invalid. The appellant during the trial has proved that the cash does not belong to him. This fact is even supported by all the prosecution CRC no.06/2011 Page 7 of 70 witnesses, including the independent witnesses examined by the prosecution. During the course of the trial the prosecution itself has produced the evidence which shows that the cash amount belonged to the father of the appellant who had received it in consideration of the sale of the land at Kanji Gund/Pazalpora. The appellant has also produced the evidence oral and documentary which proves that the cash amount was kept by the father of the appellant in the house of the appellant and during the course of search this fact was disclosed to the search party by the wife of the accused, but the investigating officer ignored the material evidence and wrongly attributed the cash amount to the accused. The prosecution has clearly failed to prove that the amount belongs to the appellant. By showing the circumstances as to how the amount was seized, the appellant had discharged the onus and it was for the prosecution to prove beyond any doubt that the explanation furnished is unsatisfactory and that the amount belongs to the appellant. The three cheques seized in the case were the pay dues of the appellant which had not been encashed by him till the seizure was effected. As far as the electronic gadgets, textiles, furniture and other items are concerned, the prosecution has failed to prove that these belong to the appellant. The appellant, his father, brother and resident sister constitute a joint family. The various gadgets, textiles and furnishing items do not exclusively belong to the appellant. The prosecution has failed to prove as to which of the items among the household goods exclusively belonged to CRC no.06/2011 Page 8 of 70 the appellant for which he was required to tender an explanation. The appellant submits that it is the part of the evidence that the appellant along with his other family members belong to a joint family owning the huge assets both moveable and immoveable including the landed property which is yielding handsome income yearly, including the income from saffron grown upon the land which is owned by his father. It has not been proved that the seized wrist watches belonged to the appellant. The question of tendering any explanation with regard to these watches, therefore, does not arise. The prosecution has taken 60% of salary as the non-verifiable expenditure during check period. The investigating officer admitted during the course of the trial in his statement that there was no basis for taking 60% of the salary as the non-verifiable expenditure. The appellant's positive case is that he belongs to a joint family of the agriculturists, producing all the eatable items, including rice, vegetables, milk, fruit, edible oil, firewood and charcoal. The investigating officer has failed in his duty to examine this aspect of the case and has unfairly and unjustifiably fixed the non-verifiable expenditure at 60% of the salary of the appellant. The major expenditure for running the kitchen and maintaining the house was borne by the income derived from the joint family property, most part whereof is inherited by the father of the appellant from his ancestors and continues to be in his name and some purchased by him from his own sources. The appellant, everything said and done, at the most, could spend the CRC no.06/2011 Page 9 of 70 percentage of the salary alleged by the prosecution as non- verifiable expenditure. In the facts and circumstances of the case and the evidence on record and taking into consideration various other cases investigated by the Vigilance Organisation, Kashmir, in which non-verifiable expenditure is fixed at 30%, the appellant would in the circumstances of the case spend hardly anything on the non- verifiable expenditure. This item in the facts and circumstances of the case cannot be fixed at more than 10% of the salary drawn by the appellant. So far as the verifiable expenditure is concerned, the documents produced in support thereof were not proved during the trial. These were inadmissible in evidence because only copies were produced. No certificate of correctness was appended to the copies and the original record was not produced; even the permission for the secondary evidence was not sought. The appellant, thus, submits that the verifiable expenditure shown by the prosecution could not have been attributed to the appellant.
7. Next submission of the appellant is that the Bank deposits sought to be attributed to the appellant have not been proved. No admissible evidence has been produced in this behalf and the statements produced by the prosecution in this behalf are inadmissible and do not conform with the requirements prescribed by the law. The income derived from the salary and the land etcetera for the year 1997, has not been taken into account while calculating the income of the appellant. The investigation has been done by the officers who were not competent to investigate the case CRC no.06/2011 Page 10 of 70 registered under the Prevention of Corruption Act, which has led to serious prejudice to the appellant. During the course of the trial, the appellant had proved that his total income from all known and genuine sources during the check period does not in any manner show him to be involved in possessing the assets beyond the known source of income. It is also mentioned that the petitioner has been receiving the income from the joint family resources from time to time, which has not been taken into consideration by the prosecution, but the evidence has been produced to show that the appellant has been receiving the income from the joint family resources. It is averred that the appellant had demonstrated with reference to his income from all the known sources, i.e. his salary, agriculture land, sale of agricultural produce, income from saffron and also the amount received from the father by the appellant. The appellant, in his Annual Property Statement, had shown all the sources of the income, which far exceeded his expenditure. The appellant submits that at no stage during the check period or thereafter he possessed any asset, moveable or immovable, any cash or any kind to his source of the income, duly identified by him. The physical existence of various assets belonging to the appellant were supported by the legal evidence and proper permissions. The assets allegedly belonging to the appellant were clearly shown that they do not belong to him but to other persons, who had a separate income for creating those assets. The appellant had shown that he is one of the members of the joint family and CRC no.06/2011 Page 11 of 70 the assets created were from the income of the joint family and wherever the appellant had created any asset in his own name or in the name of his family members, it was separately indicated in the property statement and was not a part of the joint family. The appellant had clearly proved that his expenditure throughout the check period whether in kitchen or in the education of his children or on any other item was borne by the other members of the joint family and the appellant was in a position to substantially save his income from various sources indicated by him. The court below, it is maintained, has clearly erred in law in applying the same standard and degree of proof required by the prosecution in the matter of the conviction. The appellant more than probabilized his defence and had clearly tendered convicting explanation about the assets, which clearly belonged to him and were shown in the annual Property Statements. No bases exist for the learned Trial Court not to believe the explanation tendered by the appellant in respect of the matters which have formed the basis of recording conviction. The appellant states that whatever assets were put to him during the course of the examination under Section 342 Cr.P.C., the appellant had clearly tendered the explanation. The learned Trial Court erred in law in recording the conviction against the appellant on the basis and circumstances which were not put to the appellant in his examination under Section 342 Cr.P.C.
8. Further contention of the appellant is that the judgement is contrary to the law and the facts inasmuch as the appellant CRC no.06/2011 Page 12 of 70 is not charged under Section 5(1)(a) of Section 5 (1)(b) of the Act. The charge under Section 5(1) (e) of the Act is an incomplete charge for the simple reason that no charge under the said provision can be made unless a charge is also made out under Section 5(1)(a) of under Section 5(1)(b) of the Act.
9. The learned counsel for the appellant has submitted the Written Arguments, in which it is stated:
I. On the basis of the unknown reports about the lifestyle of the appellant, who was working as the Executive Engineer in the Power Development Department in the year 1997, a preliminary enquiry without notice to the appellant seems to have been initiated by the VOK. On the basis of the preliminary enquiry case FIR No. 101/1997 was registered at VOK Srinagar under Section 5(2) read with 5(1)(e) of the Prevention of Corruption Act and Section 14 of the J&K Public Men and Public Servants Declaration of Assets and other Provisions Act, 1983. The investigation resulted into filing of the Charge Sheet under Section 173 Cr. P.C. before the learned Trial Court. In the challan it was stated that the appellant is holding the property beyond his known sources of income. The 'Annexure-A' appended to the Challan is shown to have been prepared on the self-declaration of the appellant as shown by him in the Annual Property Returns of 1987. The properties mostly shown to have been owned and possessed are as under:
"Immovable:CRC no.06/2011 Page 13 of 70
1. Three houses at Kanigund Anantnag (Ancestral)
2. Irrigation Land 48 kanals ancestral at Kangigund.
3. Dry land 6 kanals ancestral at Khanabal, Anantnag
4. Orchard 9 kanals at Kharpora Tral.
Movable:
1. Cash in hand/savings from pan and Orchard Income: Rs. 4.12 lacs
2. 42 tolas of gold cost not known
b) Assets raised by the accused during the check period i.e. 1st January 1988 to 31 December, 1997 are:
Immovable Property:
1. Cost of one storey house with servant quarter incomplete with 7200 Sqft. land underneath as per sale deed = Rs. 2,00,000.00
2. Cost of first floor with attic after deduction of cost of ground floor, servant quarter with land out of total cost assessed by AEE, VOK = Rs. 8,63,721.00 Landed Property Purchased:
1. 3 Kanals and 16 marlas of land at Nowgam: Rs. 94,500.00
2. 8 kanals and 6 marlas land at Kharpora: Nil Received u/s 4/8 of Agrarian Ref. Act.
3. 13 marlas land at Ploura,Jammu: Rs. 15,000.00
4. Expenses incurred on walling of the land: Rs. 21,000.00 Total : Rs.1,30,500.00 Movable Property:
1. Maruti Car No. 4033/JK01C : Rs. 1,98,852.00
2. Fiat Car No. 2577/JK01 : Rs. 1,22,617.00
3. Cash Seized during house search at Rawalpora, Srinagar : Rs. 6,92,700.00
4. Cheques 3 Nos. (pay for 3 months) : Rs. 24,948.00
5. Electronic/Electric Gadgets : Rs. 2,26,335.00
6. Textile Items : Rs. 75,085.00
7. Furniture Items : Rs. 43,850.00
8. Bank Deposits : Rs. 1,45,829.00
9. 9. 10 No. wrist watches recovered during house search at Rawalpora, Srinagar : Rs. 9,300.00 _________________ Grand Total : Rs. 27,33,738.00
c) Expenditure incurred by the accused during check period CRC no.06/2011 Page 14 of 70 i. 60% of salary of the accused on non-verifiable items : Rs. 4,13,614.00 ii. Upkeep of five children after 11th Class @ Rs. 100/-
Per month per head. : Rs. 15,600.00
iii. Expenditure on verifiable items : Rs. 7,02,154.00
Total Expenditure : Rs. 11,31,368.00
d) Total income of the accused officer from all sources during check period (Total b + c)
i) Total assets during the check period movable and Immovable : Rs. 27,33,738.00
ii) Total expenditure (verifiable) : Rs. 7,02,154.00
iii) Total expenditure (non-verifiable) : Rs. 4,29,214.00 Total assets and expenditure : Rs. 38,65,106.00
1. Total assets at the beginning of the check period which are to be included in the income of the accused : Rs. 4,12,000.00
2. Total Income during check period. : Rs. 12,78,857.00 Total Income 1+2 : Rs. 16,90,857.00 Total Assets and expenditure : Rs. 38,65,106.00 Total Income : Rs. 16,90,857.00 Disproportionate : Rs. 21,74,249.00 The matter was referred by the VOK to the Government for grant of the sanction. The Sanction has been granted only with regard to the part of the property shown in Annexure-
A for prosecution of the appellant. The Government did not choose to grant any sanction with regard to the cash amount of Rs. 6,92,700.00 seized from the house of the accused/appellant during the investigation because during the investigation itself it was established that the cash amount was not the amount of the appellant, but was the amount belonging to the father of the appellant and his brother-in-law, who had immediately before the search/seizure of the cash sold land and had kept the amount in the house of the accused/appellant as they CRC no.06/2011 Page 15 of 70 intended to purchase another piece of land in and around Srinagar. The Government did not choose to grant any sanction for prosecuting the accused for holding the aforesaid amount of cash.
II. The challan was produced before the learned Trial Court, after a lapse of more than two years. The learned Trial Court framed the Charge Sheet against the appellant for the first time ostensibly on 26.09.2001. The accused/ appellant pleaded not guilty to the charge. The prosecution thereafter examined the evidence in support of the charge including the Investigating Officer and Writing Experts and Experts who had assessed certain immovable and movable properties found in possession of the accused during the investigation. The accused/ appellant was thereafter held guilty for commission of offences punishable under section 5(1)(e) read with 5(2) of the Prevention of Corruption Act, 2006, by judgment and order dated 30th of May, 2006 passed by the learned Trial Court.
III. The appellant challenged the judgment dated 30th of May, 2006 through Criminal Appeal No. 05/2006. The appeal was accepted because defect was found in the charge sheet framed against the accused/appellant which has caused great prejudice to him. The judgment and order of conviction and sentence recorded against the appellant was set aside by this Court vide judgment dated 15.07.2009 with the following observation:
"In the given circumstances, I am of the considered view CRC no.06/2011 Page 16 of 70 that this appeal merits to be allowed and impugned judgment merits to be set-aside and case needs to be remanded to the trial court with the direction to frame charge afresh, read and explain to the accused, allow the prosecution and accused to re-examine witness(es) already examined and allow prosecution to examine any further witness, if material. In case the opportunity is availed by the prosecutor or by the accused then further statement of the accused in terms of Section 342 of the Code be recorded, if required. The accused be also given an opportunity to examine witness(es) in defence and thereafter hear the arguments and conclude the case. The entire exercise be done within a period of six months.
It is made clear that any observation made by this court or by the trial court while recording the impugned judgment shall not influence the trial courts mind in any way.
Accordingly, this appeal is allowed, impugned judgment and order of conviction and sentence is set-aside and case remanded back. Parties are directed to cause appearance before the trial court on 27.07.2009. The time frame fixed (supra) shall commence from 27.07.2009. Registry to send down the record along with a copy of this judgment for information."
IV. The learned Trial Court failed to comply with the judgment of this Court and while framing the fresh charge further properties were added in the Charge Sheet, which includes a Fiat Car and the cash amount of Rs. 6,92,700.00. This was done even though no sanction was granted for prosecuting the appellant with regard to the recovery of the cash amount.
V. After framing the charge afresh, which includes fresh property, the prosecution was bound to produce the evidence afresh on which they were relying for proving the case to provide an opportunity to the accused/ appellant to cross examine the witnesses. The CRC no.06/2011 Page 17 of 70 prosecution sought time for production of the witnesses but failed to do so. Even after making the application for extension of the time, which was granted beyond the terms of the original judgment dated 15.07.2009, whereby the conviction and sentence was set aside, the prosecution failed to produce the evidence. The accused/appellant being scared of the prosecution, which virtually has resulted in his persecution, himself sought permission to cross examine some witnesses who had earlier been examined though that was result of a mistaken legal advice. The accused/appellant cross- examined certain witnesses of the prosecution who were earlier examined before framing of the 2nd Charge Sheet. VI. The evidence examined by the prosecution before framing of the fresh charge against the accused-appellant could not legally be read against the accused because those proceedings have come to an end when this Court delivered the judgment in the Criminal Appeal no.05/2006 on 15.07.2009. The accused-appellant has examined the defence witnesses in the case. VII. The learned Trial Court, while relying wholly upon the evidence that was produced by the prosecution in support of the earlier charge sheet, has convicted the appellant even though no evidence was led after the new charge sheet/fresh charge sheet was framed against the accused.
VIII. The earlier evidence led by the prosecution on the basis CRC no.06/2011 Page 18 of 70 of completely defective/illegal charge sheet, have been held to have resulted in the utter prejudice of the appellant and it was totally wrong on the part of the learned Trial Court to convict the accused-appellant on the same evidence. The conviction recorded and sentence awarded has been passed without any evidence. The case being of no evidence, conviction and sentence is liable to be set aside.
IX. The appellant further submits that he has suffered on the basis of prosecution in the case, which in the circumstances of case amounts to persecution. The case has remained hanging like a sword over his head for last more than 21 years. The pendency of the case has deprived the appellant of his liberty. The continuance of the case any further violates his right to speedy trial which is an Essential Component of Right to Life and Liberty granted under Article 21 of the Constitution of India. It is, therefore, submitted that the appeal may be accepted and conviction and sentence recorded against the appellant may be set-aside.
X. The appellant further submits that even on merits the prosecution has no case. The conviction recorded and the sentence awarded is the result of misunderstanding of law and its misapplication. The judgment in appeal also suffers from mis-appreciation of law and the evidence led by the prosecution. To substantiate the arguments on these aspects the appellant for facility of this Court will CRC no.06/2011 Page 19 of 70 deal now with each property attributed to the appellant and the income bona fidely and genuinely earned by him during the check period.
(i) The property shown under head (a) both movable and immovable, in Annexure-A to the challan, have been rightly held to be the bonafidely owned property of the appellant and his family and has been rightly excluded from the charge sheet. The cash amount and the orchard income and the savings shown under the same head have also been rightly held to be the genuinely and bona fidely earned the property of the appellant. So is the case with 42 tolas of gold. All these properties have been shown by the appellant in his property statements besides showing other properties, details of which are given below.
(ii) The properties shown under head (b) are stated to have been raised by the appellant during the check period, which includes the cost of the one storey house with the servant quarter with 7200 Sqft. land underneath as per the sale deed in Rawalpora Housing Colony. The value of the same has been assessed at Rs. 2,00,000.00 and the cost of the first floor with the attic after deduction of cost of ground floor, servant quarter with land out of total cost has been assessed by AEE, VOK at Rs.8,63,721.00. Under this head further properties measuring 3 kanals and 16 marlas of land at Nowgam, valued at Rs.94,500.00 and 08 kanal 06 marlas of land at Kharpora acquired under section 4/8 of Agrarian Reforms Act, valued nil, 13 CRC no.06/2011 Page 20 of 70 marlas of land at Ploura, Jammu valued at Rs. 15000/- and expenditure incurred on walling of the land at Ploura, Jammu, valued at Rs. 21000/- are attributed to the appellant. Insofar as the residential house at Rawal Pora Housing Colony is concerned, the case put forward by the prosecution is that the single storey house with servant quarter incomplete with 7200 Sqt land underneath, was purchased 'Benami' by the appellant in the name of his sister Mst. Haleema (PW-40) for Rs.2.00 lacs and thereafter first floor and attic was constructed above the ground at the cost of Rs.8,63,721.00, as assessed by the AEE, VOK. The defence set up was that the house was purchased by Mst. Haleema from its original owner out of her own funds and no question of 'Benami' transaction arises. It was further case of the defence that the entire house including first floor and attic was purchased against a consideration of Rs. 9,00,000.00, paid by the appellant to her sister, along with furniture and fixtures. The prosecution has themselves during the investigation placed on record the original document through which Mst. Haleema had purchased the property from the original owner Mr. Ghulam Ahmad Batkoo and the said document has been proved and accepted by Mst. Haleema while being examined as prosecution witness.
On the question of 'benami' transaction prosecution relies upon the evidence of finger print CRC no.06/2011 Page 21 of 70 Expert, namely, Shuja Shafqat (PW-67) to establish that the document obtained from the original owner Shri Batkoo, bears a thumb impression of Mst. Haleema, but the same does not tally with the thumb impression of the State Subject Certificate of Mst. Haleema seized from Social Welfare Department vide Seizure Memo, marked Ex PW-GAL. On this basis it is said that inference be raised that the property was 'benami'. The inference sought to be raised is unreasonable, against law and is illogical. It is further submitted that the thumb impression on the State Subject is that of left hand as is written on the State Subject Certificate and admitted by the fingerprint expert in his statement before the Court. While as no evidence has been provided to show that the impression on the original document obtained from Shri Batkoo is that of left thumb of Mst. Haleema. On the contrary it is the usual practice in Kashmir Valley that thumb impression of the right hand of the females are taken on the documents which are scribed in their favour or in favour of third parties on their behalf. As such, the matching of thumb impressions does not arise. The prosecution has also not obtained right hand thumb impression of Mst. Haleema for comparison by the Fingerprint Expert. The prosecution has also not produced the scribe or any attesting witness of the Power of Attorney executed by the original owner Shri Batkoo to prove the alleged 'benami' transaction. The CRC no.06/2011 Page 22 of 70 Fingerprint Expert has in his statement admitted that he is not in a position to say whether a particular thumb impression is that of the right hand or left hand. The so- called expert has also admitted in his deposition that he has not been recognized by the Government as a fingerprint expert. He has also allegedly examined the fingerprints on State Subject Certificate of Mst. Haleema, but there is no evidence on record to show that the finger prints on the State Subject of Mst. Haleema is that of the accused-appellant. The prosecution has also sought to rely upon a signature made on the application on behalf of Mst. Haleema for obtaining electric power supply from the Electric Department. The accused-appellant is said to have written the name of Mst. Halema in his own handwriting in the concerned form meant for the signatures of the applicant-Haleema. The said form and the alleged admitted handwriting of accused-appellant has been got examined by another expert, Shri R.L. Dhar (PW-63), who has expressed certain opinion, but it is submitted that at no point of time during the investigation admitted handwriting of the accused- appellant has been obtained or proved during prosecution. There is, therefore, no value in the opinion of Shri R.L.Dhar (Expert) to prove that there were signatures of accused on the form filed on behalf of Haleema for obtaining electric connection to her house.
Assuming without admitting that accused-
CRC no.06/2011 Page 23 of 70appellant may have filed the form on behalf of his sister for obtaining electric connection to her house, even on that assumption or even admission the prosecution cannot be said to have proved that purchase of the double storey house with attic by Mst. Haleema from Shri Batkoo was a 'benami' transaction.
The prosecution by itself has produced Mst. Haleema as witness who has accepted the execution of the document in her favour. She has also proved that her husband was a businessman dealing in fruit business with Delhi. At the time of the purchase of the house she had sufficient funds available out of which the property, alleged to be a 'benami' transaction, has been purchased by her. The claim of the prosecution is that after the death of Haleema's husband she has obtained a job under SRO- 43 as Class-IV employee and that should be an inference that she had no sufficient funds. The plea raised is unfounded and illogical. After the death of Haleema's husband she had to earn her livelihood and, therefore, accepted a government job. This cannot be a ground for holding that transaction was a 'benami' transaction. The prosecution has relied upon evidence of Haleema. She has not been declared hostile. The prosecution cannot now change the stand and disown her statement. The law is well settled that a person who produces a particular evidence in a criminal or a civil case is bound to accept the evidence unless the witness examined is declared CRC no.06/2011 Page 24 of 70 hostile. There are other circumstances which go to show that the purchase from Shri Batkoo was directly from Mst. Haleema out of the funds available to the family of Haleema. The document was seized from her possession. The property was in her possession when she sold it to her brother along with the furniture and fixtures. The prosecution has itself produced evidence about the transaction which has taken place between Mst. Haleema and her brother accused-appellant with regard to the house vide document dated 15-03-1996 which was notarized on 23-03-1996. This document is also produced on record by the prosecution. The payment of consideration was initially paid at the time of execution of the document to the tune of Rs. 1,30,000.00 vide receipt EXPW-HA/I dated 15.03.1996 and further payment of Rs. 7,70,000.00 was paid on 30-11-1996 vide receipt EXPW-HA/II dated 30.11.1996. The prosecution cannot be allowed to raise a different case than the one which is proved by the evidence produced by it. After the execution of the Agreement to Sell for the residential house together with land, appellant had applied for grant of permission to get the residential house with land transferred in his favour, which has been duly sanctioned by the Government. The sale deed cannot be executed and registered because the case was thereafter registered on 18-12-1997.
There are two other important aspects which are CRC no.06/2011 Page 25 of 70 necessary to be brought to the notice of this Court about the purchase of the aforesaid residential house by the appellant from his sister, Mst. Haleema. The prosecution case is that Mst. Haleema had only purchased single storey house with 72 Sqft of land underneath, which too was allegedly a 'benami' transaction. The further case was that accused-appellant has himself constructed first storey and attic at a cost of Rs. 8,63,721.00 stated to have been assessed by AEE, VOK, who has appeared as a witness in the case, thus putting the entire value of the house at Rs. 10,63,721.00. The AEE, VOK has appeared as a witness but his evidence has been totally rejected by the Ld. Trial Court and rightly so, leaving the Ld. Trial Court to guess the cost of the construction of first floor and attic himself. The Ld. Trial Court has really done so and has committed a serious jurisdictional error in making such an assessment as it was a witness for the prosecution. In the absence of any evidence regarding the cost of construction of first floor and attic no inferences can be drawn about it. Be that as it may, the second important aspect is that in the charge sheet framed by the trial court, the entire residential house with 72 sqft of land including the first floor and the attic are said to be a 'benami' transaction. The charge sheet is, thus, framed contrary to the claim made in the challan as also against the evidence led by the prosecution, which evidence has, however not been accepted by the Ld. Trial CRC no.06/2011 Page 26 of 70 Court. It is these and other facts which make it clear that the accused-appellant has been subjected to persecution and there has been no legal prosecution ever pursued against him. The case of the prosecution must fail on this ground alone.
Having regard to the entire evidence on record it is sufficiently proved that house together with the land appurtenant to it including the furniture and fixtures, electronic/electric gadgets etc. have been purchased by the appellant from his sister at the cost of Rs. 9.00 lacs for which Government has also granted the permission. The prosecution has ignored the permission and other material on record and have subjected the appellant to harassment. The appellant occupied the house only after it was transferred in his favour by his sister in the manner stated earlier, after receiving the full consideration of the house and furniture & fixtures including electronic/electric gadgets. No evidence has been led by the prosecution that the appellant or his children were at any point of time before the transfer of the property in his favour, living in the house. On the other hand, the prosecution has produced one Farooq Ahmad Bhat, Principal Hanfia School, Anantnag, who testifies that children of the accused were studying in his school at Anantnag till 1994.
(iii) Land Property at Nowgam, which forms part of part(b) of Annexure-A of the challan: The appellant admits the CRC no.06/2011 Page 27 of 70 said purchase which is, however, wrongly put at Rs.94,500. The actual cost paid was only Rs. 92,000/-. Without entering into any controversy with regard to the actual cost, the appellant accepts the assertion of the prosecution in regard to the purchase of land at Nowgam at the cost of Rs. 94,500.00. The appellant has purchased the land only after obtaining permission from the Government wherein source of the amount against which the purchase has been made was duly disclosed. About the further land and property situate at Kharpora, the prosecution has shown the amount as 'Nil' because it has been transferred under the mechanism provided by Agrarian Reforms Act under Section 4/8. No payment of consideration was involved. The prosecution has been, however, for the first-time kind enough to accept the actual position. The further landed property attributed to the appellant comprises of 13 Marlas of land at Ploura, Jammu at Rs.15000/- and cost of the walling of the land of the said plot at Rs. 21000/-. The learned Trial Court has rightly rejected the allegations levelled in this behalf and rightly so. There is no evidence produced to attribute this purchase or expenditure involved in walling by the appellant.
(iv) Movable Property The prosecution has alleged purchase of two cars, one being Maruti Car bearing Registration No. 4033/JK01C and another Fiat Car bearing Registration No. 2577/JK01.
CRC no.06/2011 Page 28 of 70These cars are said to have been purchased respectively for an amount of Rs.1,98,852.00 and Rs. 1,22,617.00. These cars were never owned and possessed by the appellant. One of these cars belongs to the father of the appellant and other to his mother. These have been purchased by them from their own funds. The prosecution has led evidence which shows that the family of the applicant are rich agriculturists and own more than 100 kanals of land and have also income from fruit and from poplar trees and other sources. One of the cars is registered in the name of the father of the accused- appellant and other is registered in the name of his mother. The prosecution has produced ARTO and RTO where the cars are registered and specific evidence led is that cars are registered in the name of the father and mother of the accused-appellant and not in the name of the accused. One of the cars at the relevant time is said to have been parked outside the residential house at Rawalpora when the father of the accused may have parked it there, but that parking does not prove the possession and ownership of the accused of the said car. Reference in this behalf is necessary to be made to the statements of Ghulam Ahmad Mir (PW-53), who was Motor Vehicle Inspector and has stated that the car originally belonged to 'Kani Motors' which was sold by it to Ghulam Nabi Dar and that car is registered in his name. He further says that car bearing registration No. CRC no.06/2011 Page 29 of 70 2577/JK01 is registered in the name of Mst. Khatji Begum. There is also other evidence produced regarding these cars, but none of the witnesses have supported the case of the prosecution. There is also no evidence that any amount of money was contributed by the appellant towards purchase of these cars. In this state of evidence, the prosecution case about these cars attributed to the accused also fails.
The other movable property which is attributed to the accused-appellant is a cash amount of Rs. 6,92,700.00 seized from the house search on the date of raid at Rawalpora residence of the appellant. The amount seized is in the shape of currency notes. Whether the currency notes fall within the meaning of movable property is a debatable question. Without entering into this legal aspect, appellant admits that in his absence currency notes worth Rs. 6,92,700.00 were seized from his house at Rawalpora. The evidence of the Magistrate, who was part of the searching party, is that during seizure accused- appellant was not present. The wife of the accused who was involved in domestic work in the kitchen and she had cried that the amount belongs to her father-in-law and brother-in-law of the accused-appellant who had sold land and kept the money in their house. The defence of the accused is also the same. The amount though seized from the house was actually the amount which was a sale consideration of the land sold by the father of CRC no.06/2011 Page 30 of 70 the accused and his brother-in-law and both of them intended to purchase land around Srinagar for the said amount and while making bargains about the purchase of the land, some time was consumed and the amount was, therefore, kept for safe custody in the house of the accused. The prosecution has led evidence both oral and documentary which lead to the irresistible conclusion that the amount of money seized was the one which was obtained by the father of the accused and brother-in-law of the accused from the vendees to whom land was sold by them and was kept by them at the house of appellant. The document executed by brother-in-law of accused, namely, Abdul Rehman Khana Damad of Ghulam Nabi Dar, that he has proposed to sell land measuring 1 kanal 10 marlas under Survey no.1185 to Mohammad Abdullah Dar, resident of Kanjigund, for an amount of Rs. 3,00,000.00. This document is executed on 08.12.1997. It is notarized by Mohammad Rajab, Notary Public. The amount of the consideration paid to Abdul Rehman (brother-n-law) of the appellant is evidenced by another document produced by the prosecution marked EXPWMB/I. The agreement executed in lieu of this payment is marked as EXPW MRB. There is another document produced by the prosecution which would show that Ghulam Nabi Dar, the father of the appellant, has also sold land measuring 3 Kanals 4 Marlas situate at Kanjigund under survey No. 198 to one Abdul Rehman CRC no.06/2011 Page 31 of 70 Dar S/o Karim Dar R/o Kanjigund, for an amount of Rs. 3,84,000.00 vide agreement EXPW MRB/II. The amount of consideration paid is evidenced by receipt EXPW MRB/III. Mohammad Rajab (Notary) has appeared as prosecution witness and has proved these documents. The prosecution has also produced evidence comprising depositions of purchasers of the land Shri. Abdul Rehman Dar who has stated that the land was purchased by him and amount was paid to the vendors. Besides, Ghulam Nabi Dar, Ishfaq Ahmad Dar and Mohammad Yousuf Dar have also been produced by the prosecution, which have gone a long way to prove that the amount of consideration received by the father of the appellant and his brother-in-law for sale of the land was kept at the house of the appellant which was seized by the police. None of these witnesses have been declared hostile. The prosecution is bound by their evidence. There is also further evidence on record which have been examined in defence, which corroborated evidence of transaction in regard to the currency notes seized from the house of the accused at the time of raid conducted immediately after the registration of the case.
All the above evidence and documents relied by prosecution may have been put up before the Government when sanction was granted. Keeping in view the documentary and oral evidence, no specific sanction has been granted with regard to the seizure of CRC no.06/2011 Page 32 of 70 the currency notes. The amount of currency notes seized, therefore, cannot be attributed to the appellant. The amount admittedly belonged to the father and brother- in-law of the accused-appellant having been proved to have been acquired through a sale of land by them and, therefore, cannot be attributed to be the income of the accused-appellant.
In respect of movable property three cheques of the total value of Rs. 24,948.00 is also attributed to the accused. These cheques have been issued by the Government in lieu of the salary of three months payable to the appellant. This amount has been wrongly shown as expenditure instead of showing it as income. The amount of cheques have, however, not been received at any point of time by him and is still payable to the appellant.
Electronic/Electric Gadgets, Textile Items, Furniture Items:
Electronic/Electric gadgets, Textile items and furniture items valued respectively at Rs.2,26,335.00, Rs. 75,085, and Rs. 43,850.00 are also shown to be the assets raised by the appellant during the check period.
It is submitted in this behalf that the house was purchased by the appellant from his sister along with electronic/electric gadgets and furniture items for Rs. 9,00,000.00, the documents about which have been proved by the prosecution. There is, therefore, no CRC no.06/2011 Page 33 of 70 question of attributing cost involved in the purchase of electronic/electric gadgets and furniture items to the appellant. The cost shown of these goods as being the asset of the appellant obtained during the check period is to be excluded. The further contention in this behalf is that the cost at which the electronic/electric gadgets and furniture items have been assessed has not been proved by any cogent, convincing and reliable evidence to let us take the assessment of the electronic/electric gadgets stated to have been made by Illham Naseem (PW-39). He does not seem to have any expertise about the assessment either of electronic or electric items. He has admitted that the value assessed by him can be more or even less. He has further admitted that the assessment is based on guess work. This being the state of evidence, no reliance can be placed on it. Let us now examine the assessment made about the value of furniture items. The prosecution has examined Abdul Salam Bhat (PW-33). He says that he assessed the value on the basis of market rate as was prevalent in 1988 of such items. He further says that he is unable to state when were the furniture items purchased. He cannot say anything about the date of the purchase or the age of the furniture items. There is no other evidence on record to show as to what could be the age of the furniture items and their value at the time of purchase. The assessment made by Shri Bhat, therefore, cannot be relied upon. The prosecution, therefore, cannot be CRC no.06/2011 Page 34 of 70 permitted in law to attribute the amount alleged to be involved in purchase of the aforesaid electronic/ electric gadgets and furniture items to the accused- appellant.
The Textile items are valued at Rs. 75,085.00. The textile items got assessed from one Mohammad Akbar Mir. He has admitted in his evidence that he cannot say the basis on which the rate was fixed by him. He further says that the rate given or assessment made by him is not final. This evidence is of no value and prosecution cannot buttress the claim that textile items were valued at Rs. 75,085.00 or odd.
In Annexure-A to the challan, there is also mention of bank deposits of Rs. 1,45,829.00 to be an asset of the appellant. No evidence whatsoever has been produced to prove these deposits in the manner provided by law. Under J&K Banker's Books Evidence Act, these deposits could be proved by producing the certificate to be issued by the particular Bank under section 4 of the Act or in the absence of production of such a certificate, by producing the Manager of the Bank who has certified the amounts deposited in the Bank. The prosecution applied for the trial court for summoning of the Managers of various Banks after the case was remanded by this Court, but none of these Managers (except two) have been produced and, therefore, the prosecution has failed to prove that amount of Rs. 1,45,829.00 was in the name of the appellant in various Banks. One of the Managers, CRC no.06/2011 Page 35 of 70 namely, Vijender Singh, who seems to have been posted one at Sadar Bazar, Delhi, is stated to have signed a statement, which he claims to be a Photostat copy. He admits that this Photostat copy was also prepared by a peon posted in the Bank. The prosecution has not, therefore, been itself serious about the money shown to have been in the accounts of the appellant in one or the other Bank. The statement of another Manager produced is of the same nature and not reliable.
There is also an amount of Rs. 93,00.00 shown to be the value of 10 wrist watches seized from the house of the accused even though the value of the watches is not proved at the amount fixed, but the accused-appellant admits the amount without entering into any argument.
(v) Expenditure alleged to have been incurred by the accused during the check period (forming part (c) of Annexure-A to the challan:
The prosecution says that 60% of salary of the accused has been spent on non-verifiable items which is fixed at Rs. 4,13,614.00. An amount of Rs. 1,15,600.00 is also attributed for upkeep of the children after 11th Class. The amount so shown is quite excessive and exorbitant.
Expenditure on verifiable items spent on food, clothes and like. The evidence on record is that the accused-appellant was receiving all the food items from his home as his father owns land, both agricultural and non-agricultural land, including the Almond and Saffron CRC no.06/2011 Page 36 of 70 land and the land under poplar trees. The accused- appellant was receiving all the amount of verifiable items from his house. This is proved by the prosecution evidence itself. In this behalf the statements of Abdul Rehman Wagay, Mohammad Yousuf Dar and Mohammad Jabbar Bhat are relevant. Their evidence shows that family of the accused-appellant is a quite wealthy family, highly respected in the Illaqa. The family is owning agricultural land besides owning fruit bearing trees, which bear almond and saffron and are also owners of land which is under poplar trees yielding huge sum of money. There evidence further shows that accused- appellant was receiving expenditure on account of food and other items from his house.
Leaving aside the aforesaid circumstances, the appellant submits that 60% of the salary of the accused to the tune of Rs. 4,13,614.00 is on the higher side. The normal expenditure on non-verifiable items can at best be fixed at 30%, which amounts to Rs. 2,06,807.00. The Investigating Officer when asked, during the investigation, about the basis on which 60% of the salary of the accused was said to have been spent on non- verifiable items, said that this is done because this is the practice in Vigilance Organization without specifying the basis on which the Organization has taken such a decision. It is further submitted that non-verifiable items includes the upkeep of children and, therefore, fixing CRC no.06/2011 Page 37 of 70 another amount of Rs. 1,15,600.00 under this head is impermissible.
Expenditure on verifiable items is fixed at Rs. 7,02,154.00.
The expenditure on verifiable & non-verifiable items is thus fixed at Rs. 11,31,368.00. The fixation of such a huge amount is not only unreasonable but is not testified by any evidence. In respect of the verifiable items no details are given in Annexure-A to the challan. It is submitted that under this head an amount of Rs.5,66,000.00 is shown to have been spent by the accused-appellant for securing the admission of his daughter in Jehlum Valley College of Medical Science, Srinagar, which includes the donation and the admission fee. The amount of Rs. 6.00 lacs was, in fact, contributed by the father of the accused-appellant for making the above said payments for securing the admission of his daughter in the Medical College. The Investigating Officers were apprised of this situation but they have refused to entertain the claim. As a matter of fact appellant had before receiving the amount from his father applied to the Government for grant of sanction to receive the amount from his father. This amount has also been shown by the appellant much before the case was registered, in his property statement. The Government had taken cognizance of these facts and have issued communications as well. The father of the accused-CRC no.06/2011 Page 38 of 70
appellant has also testified that he had contributed the amount of Rs. 6,00,000.00 for securing the admission of the daughter of accused-appellant when he appeared as a prosecution witness. He has not been challenged by the prosecution during the course of recording of the evidence nor has he be declared hostile. The claim that amount of Rs.7,02,154.00 was spent on verifiable items is, therefore, not sustainable. The amount of Rs. 6,00,000.00 is to be deducted from the said item. Zahoor Ahmad Mir, to whom trees were sold, has appeared as a witness and has stated that trees were sold to him by the father of the appellant for an amount of Rs. 11,93,000.00. The payments were made in piecemeal and payment statement was signed by the purchaser.
The income of the accused during the check period is wrongly shown on the lower side. It is admitted that accused-appellant had an amount of Rs.4,12,000.00 at the beginning of the check period. The income received by the appellant as salary amounts to Rs. 6,89,357.00. The appellant had also received Rs. 6,00,000.00 from his father for seeking admission for his daughter. This amount is also shown to be the income of the appellant rather than showing it as expenditure. By wrong calculations and contribution of wrong assets and their value has wrongly been raised to a higher amount in order to show that appellant is owning property beyond his known source of income.CRC no.06/2011 Page 39 of 70
The income from sale of fruit and saffron: The prosecution has completely omitted the income received by the appellant during the check period from the sale of fruit in the shape of almonds, plums and saffron which was grown every year in the land owned by the appellant at Kharpora, Tral and Nowgam, Sgr. Besides, appellant has been selling poplar, willow and keekar in the year 1989, 1990, 1991, 1992, 1993 & 1994, which was grown at the land at Kharpora and Nowgam. The appellant has been regularly showing the said Income in his property statement. The appellant has also been regularly showing the said income in the Annual Property Statements, about which no objection has been taken at any point of time by the Government or any other authority in position. The brief statement of this income is as under:
S. No. Year Income from Income from sale of
almonds, plum and poplar, willow & keekar
saffron trees
Amount in Rs. Amount in Rs.
1. 1988 30,000.00 -
2. 1989 65,000.00 15,000.00
3. 1990 50,000.00 25,000.00
4. 1991 45,000.00 20,000.00
5. 1992 60,000.00 20,000.00
6. 1993 50,000.00 30,000.00
7. 1994 50,000.00 40,500.00
8. 1995 50,000.00
9. 1996 80,000.00
10. 1997 1,00,000.00
Total 5,80,000.00 1,50,500.00
Besides other evidence on record showing that the appellant has been receiving the income from the sale of CRC no.06/2011 Page 40 of 70 fruit annually, the Investigating Officer has also admitted that the appellant has been regularly showing the income of the fruits and saffron in the property statements. This fact is admitted by the prosecution. Despite the said statement of the Investigating Officer the prosecution has not credited this amount while calculating the income of the accused-appellant during the check period.
The learned Trial Court has also recorded the finding that the appellant has the income from the sale of the fruit and the saffron during the check period as is reflected in the property statements, but has committed a serious error in calculating the income and expenditure of the accused-appellant.
The prosecution has wasted lot of time during investigation of the case with regard to the trees which were owned by the father of accused-appellant and were cut and sold during the check period by him. There positive evidence that different parcels of land were under occupation of poplar trees which were sold and out of the sale amount of Rs.6,00,000.00 were contributed by the father of the appellant for securing admission for the daughter of the appellant in Jehlum Valley College of Medical Science, Srinagar. The half-baked evidence has been produced to show that stumps of the trees sold were not found on spot though there was evidence that there were still some poplar trees standing on the spot. The absence of the stumps after the trees were cut was no CRC no.06/2011 Page 41 of 70 evidence to show that the trees were not cut and sold by the father of the appellant. The stumps remained partly under soil and partly under water and can get damaged and destroyed. The village women folk always remove the stumps in the villages for using it as firewood. This is a common practice and absence of stumps can hardly be a proof that trees were not sold and money was not contributed by the father of the appellant towards him for satisfying the expenditure involved in securing admission in JVC, Srinagar.
(vi) That accused-appellant has regularly filed his property statements and has disclosed every item of the property including the Income and Expenditure. There is no truth in the allegation that appellant is guilty under Section 14 of the J&K Public Men and Public Servants Declaration of Assets and other Provisions Act, 1983. There is also no evidence that any property owned by the accused-
appellant has been suppressed from the property statements filed by him.
(vii) The learned Trial Court has written a very long judgment which is a good piece of literature and research on certain unrelated matters, but has wrongly held accused- appellant guilty. The judgment is liable to be set aside.
From the evidence on record what is deducible in regard to the income and expenditure of the accused- appellant is described below:
"A" Total Income of Accused during check period CRC no.06/2011 Page 42 of 70 S. No. Particulars of income Amount in Rs.
(i) Previous balance before check period 4,12,000.00
(ii) Income from salary during the check 6,89,357.00 period
(iii) Income from sale of fruit and saffron etc. 7,30,500.00 during the check period
(iv) Contribution from the father of appellant 6,00,000.00 for seeking admission of his daughter Total (A) 24,31,857.00 "B" Total expenditure during check period S. No. Particulars of Expenditure Amount in Rs.
(i) Cost of residential house at Rawalpora 9,00,000.00 Housing Colony together with furniture and fixture
(ii) Cos of purchase of land at Nowgam 94,500.00
(iii) Cost of Watches 9,300.00
(iv) Value of non-verifiable items, i.e. 30% of 2,06,807.00 salary
(v) Value of verifiable items 5,66,000.00 Total (B) 17,76,607.00 Difference (A-B), i.e. Rs. 24,31,857.00
- Rs. 17,76,607.00 Rs. 6,55,250.00 Keeping in view the amount of income and expenditure, as stated above, there was still an amount of Rs.
6,55,250.00 left with the appellant. The case of the prosecution is, therefore, baseless. However, it is added that the amount of textiles which has been added to the expenditure by the prosecution can be accepted as the expenditure, but no evidence worth the name is available about the value of the textiles. The evidence of the expert on this score has already been discussed and found to be unworthy of credit. Keeping in view the natural course of human conduct and the living CRC no.06/2011 Page 43 of 70 standards of the people in Kashmir Valley including the status of the appellant, amount of Rs. 30,000.00 can be added as expenditure involved in the purchase of the textiles, which still keeps an amount of Rs.6,25,250.00, available with the appellant. This amount can be counted for further amount of the expenditure attributed by the prosecution to the appellant, like upkeep of his children, fee payable for their education, alleged bank deposits (which have not been proved), etc. etc. The settled legal position is that while deciding the case of the present nature, the Courts have always given an allowance of 10% to 20% of either side in determining the income and expenditure of an accused involved in a case of the present nature. The application of PYTHAGORAS GEOMATRICAL THEORM is not to be applied.
Lastly, it is submitted that the evidence of Investigating Officer does not full support the prosecution case. The Investigating Officer has remained highly shaky particularly during cross examination.
10. In support of the aforesaid written arguments, the learned counsel for the appellant has relied upon the decisions rendered by the Supreme Court from time to time on the subject matter in issue:
(i) AIR 1977 SC 796;
(ii) AIR 1981SC 1186;
(iii) AIR 2002 SC 2399;
(iv) Crimes 1992(2) SC 1197;
(v) Crimes 1993(3) SC 36;
(vi) Crimes 1996(4) Delhi (F.C.) 1 to 9;
(vii) Crimes 2003 (4) AP (HC) 124;
CRC no.06/2011 Page 44 of 70
(viii) D.SP Chennai Vs. K. Inbasagaran (SC);
(ix) Ashok Teshering Bhatia vs. State of Sikkim (S.C)
11. The written submissions have been submitted by the learned counsel for the respondents, in which it is insisted that:
a) The accused has been found guilty for the commission of the offences punishable under Section 5(1) read with Section 5(2) Prevention of Corruption Act, in terms of the judgement dated 30th May 2006, convicting and sentencing the accused for three years rigorous imprisonment and the fine of Rs.5.00 lacs, and in default of the payment of fine, the accused was ordered to undergo further simple imprisonment of 18 months besides the amount of Rs.6,92,700/- cash recovered from the accused was ordered to be confiscated.
b) The judgement / order of conviction dated 30th May 2006 was challenged by the accused/appellant before this Court in appeal no.05/2006, which was disposed of on 15th July 2009, allowing the appeal and setting aside the judgement and the order of the conviction and remanded the case for passing of the fresh orders.
c) The learned Trial Court, after hearing the parties at length and after following the due procedure under law allowed the defence to fully cross-examine the prosecution witness and the appellant was fully involved to defend his case at every respective level of the trial and concluded the trial of the case on the merits after considering all the relevant recorded CRC no.06/2011 Page 45 of 70 statements, documents and on 31st May 2011 has held that the prosecution has successfully proved the accused guilty of he commission of the offences punishable under Section 5(1) (e) read with Section 5(2) of the Prevention of Corruption Act and the accused is also found guilty of having indulged in the criminal misconduct and infraction of the provisions of Section 12 and 14 of the Public Men and Public Servants Declaration of Assets and other Provisions, Act, 1983.
d) After the remand of the case by this Court, the trial started a fresh and the Trial Court framed the charge against the appellant/accused and thereafter the chance was given to the accused. The accused/ appellant gave list of the prosecution witnesses, which he wanted to re-examine and accordingly they were re-
examined, so the contention of the appellant that the charge has not been framed in accordance with the material available on record is not correct. The learned Trial Court has dealt every issue.
12. Heard and considered.
13. The earlier conviction dated 30th May 2006, on its challenge by the appellant before this Court in Criminal Appeal no.05/2006, was quashed vide judgement dated 15th July 2009. The appellant/accused was charge sheeted by the learned Trial Court on 24th August 2009. The prosecution, by the order dated 8th September 2009, was asked to furnish the List of the witnesses. The impugned CRC no.06/2011 Page 46 of 70 judgement, on its glance, reveals that as many as 66 witnesses were produced by the prosecution before the learned Trial Court. Thus, it is imperative to go through the statement of certain witnesses made mention of in the impugned judgement.
14. The "Resume of Prosecution Evidence" has been tailored by the learned Trial Court from page 24 to 79 in the impugned judgement. A perusal whereof reveals that the PW 04 Ghulam Ahmed Mir, PW 16 Tandoop Gayalson, and PW 47 Manzoor Ahmed Bhat (cited as witness nos. 25, 22, and 24 in the list of witnesses by the prosecution) have admitted in their depositions that the records pertaining to the vehicle nos. JK01/2577 and JK01C/ 4033, were seized in their presence in the office of RTO. PW 40 Ghulam Ahmed Mir (cited as witness no.53 in the list of witnesses by the prosecution) has stated during cross examination that vehicle bearing registration no.JK01C/4033 has been purchased in the name of Kani Motors and xerox copy of registration certificate on file reflects Ghulam Nabi Dar as the transferee of the vehicle and that the vehicle no.2577 is in the name of Khatija Begum.
15. PW2, Ilham Naseem, Senior Manager, Electronic SIDCO Srinagar (cited as witness no.39 in list of witnesses by the prosecution) has stated during cross examination that the date of assessment has not bene recorded in the reports prepared by him. Not only this, he has, as is discernible from the impugned judgement, clearly stated that "the CRC no.06/2011 Page 47 of 70 assessment of goods was made on guess works and as such the actual cost could be either more or less." This statement of prosecution witness is, thus, a threshold vulnerable point in the prosecution case against the appellant.
16. PW Lumberdar of Village Kanjigund, Bijbehara, namely, Ghulam Hassan Dar (cited as witness no.43 in the List of the witnesses of the prosecution) has stated before learned Trial Court that he is the neighbour of the father of the appellant. During cross examination the said witness has stated that the family of the appellant is very well off and well-known family and that the father of the appellant used to sell the agriculture produce and approximately he gets Rs.1.00 lac as the sale proceeds of the rice annually. The said witness, at the request of the prosecution, was declared hostile. His statement, however, cannot be discarded in toto.
17. The assessments with regard to various properties of the appellant, made by PW Ghulam Jeelani Shah (cited as witness no.70 in list of witnesses by the prosecution) has been discarded by the learned Trial Court. Again, the learned Trial Court has misdirected itself because it had to see and assess when and at which point of time the property in question was acquired and what was its value and price at that relevant point of time and not at the time of recording of the statement of the witnesses or at the time of consideration of the case.
18. PW 8 Raju Sharma (cited as witness no.4 in list of CRC no.06/2011 Page 48 of 70 witnesses by the prosecution) has stated in examination in chief that he has weighed the golden ornaments in a house at Rawalpora where he was taken by VOK. However, during the course of cross-examination, the witness has stated he does not know wherefrom the ornaments had been brought at the venue where he weighed them and in EXPW RS/I recites new cost which means new rates, the date on which the seizure memo was prepared is not written. He has also stated that he has also not written the date when the ornaments were purchased because he was not asked to write the same and that he wrote only the text which he was asked to do. PW 9 Mehraj Ahmed Buch (cited as witness no.12 in the list of the witnesses by the prosecution) has not supported the prosecution story.
19. The statement of PW Abdul Salam Bhat (cited as witness no.33 in the list of witnesses of the prosecution) is Achille's Heel in the case of the prosecution against the appellant. The said witness has stated that the rates quoted in the report in which the valuation of the items had been quoted, had been recited as per the marketed rates prevalent on 17th April 1998. In such circumstances the valuation has not been made according to the check period of 1988-1997.
20. PW 60 Ishfaq Ahmed Dar (cited as witness no.5 in the list of the witnesses by the prosecution) has stated that one computer was gifted to him by his grand mother and another by maternal uncle and the money seized from the CRC no.06/2011 Page 49 of 70 house at Rawalpora was sale proceeds of the land sold by his grand father and it belonged to him. The said witness has not been declared hostile. As regards the vehicle seized, he has stated that the same belonged to his grandfather, Ghulam Nabi Dar, and his grandmother had a Fiat Car which was purchased by his grandfather. He has also stated that the amount, about which he had deposed earlier, was got by his grandfather and uncle by selling land and they had brought it to Nowgam for purchasing some land at Srinagar and had kept the same with the accused/appellant as the person from whom they were going to purchase the land was not available. Thus, the statement of the said witness could not and cannot be brushed aside.
21. PW 19 Mohammad Rajab Bhat, Notary (cited as witness no.27 in the list of the witnesses by the prosecution) has stated that an agreement deed qua the land measuring 01 Kanal 10 Marlas under Survey no.1185, was presented for the attestation before him on 8th December 1997 by Abdul Rehman, Khana Damad of Abdul Rehman Dar R/o Kanjigund. He has also stated that the indenture of the agreement was between Abdul Rehman and Mohammad Abdulalh Dar and that he attested the document in presence of the parties and another agreement pertains to the land of 03 Kanals 04 marlas situated at Kanjigund under Survey no.198 for an amount of Rs.3,84,000.00. Not only this, PW 19 Ghulam Mohammad Bhat (cited as witness no.28m in the list of the witnesses by the CRC no.06/2011 Page 50 of 70 prosecution) has stated that he has identified his endorsement on the stamp paper. The statements of the aforesaid witnesses have also not rendered any push to the case of the prosecution as against the appellant, but has knocked the bottom out of the case of the prosecution.
22. PW 21, Assadullah Magray (cited as witness no.35 in the list of witnesses by the prosecution) has stated that Kiker trees have been planted on the boundaries of the land at Rajpora, which were sold by the appellant/ accused on various occasions. PW, 24 Abdul Rehman Sheikh (Wagey) (cited as the witness no.46 in the list of the witnesses by the prosecution) has stated that the father of the appellant/accused has a herd of 10-12 cows and a heard of about 100 sheep/goats and that the accused/ appellant has land at Kanjigund, in which he has planted poplar trees and that the family of the appellant has sold many trees several times and also planted new trees. PW 25, Mohammad Yousuf Dar, Lumberdar (cited as prosecution witness no.47) has stated that the appellant has sold some trees on several occasions and that the family of the accused is financially sound. He has also stated that the family of the appellant has 50 to 45 Kanals of agricultural land wherein paddy and mustard is grown. PW, 29 Mohammad Yousuf Dar, (cited as the prosecution witness no.6 (has stated that on the date of occurrence he was at the residence of the accused / appellant at Rawalpora, which was searched by the police and he along with his members was confined in a room. The witness has also CRC no.06/2011 Page 51 of 70 stated that father of the accused has saffron land and the orchards with almonds and walnuts trees and that the money was probably for purchasing of land at Nowgam and also for business and since it was difficult to carry the money so it was kept there. The witness has also deposed that there was a fiat car in the house of the accused/ appellant which belongs to Ghulam Nabi Dar. PW, 58 Ghulam Nabi Dar (cited as prosecution witness no.10) has stated that the appellant/accused is a government employee and his another son is doing the business. The witness has also stated that the accused/appellant is residing at Rawalpora and he has purchased Rawalpora house for him. His further deposition is that in 1997 he and his Khana Damad sold some land for seven lacs and since they did not have any bank account, they kept the amount with the accused. He has also stated that he provides rice, oil, vegetables, milk etcetera to the appellant from village. His further statement is that 7/8 years back, he sold poplar trees for about 12 lacs; out of which he gave six lacs to the accused/appellant for the medical seat of his daughter. The said witness has also stated that he and his Khana Damad had brought money to Srinagar as they had to purchase some land at Nowgam from Gulla Wani, who was not present there when they went to his house and they kept the money with the accused at Rawalpora and returned back and then the house of the accused/appellant was raided and the money was seized.
CRC no.06/2011 Page 52 of 7023. PW, 41 Syed Bashir (cited as the prosecution witness no.7) has stated that when posted as Senior Manager, TRC, he was directed to report in VOK and he was associated with VOK team which raided the house of the appellant/accused. The said witness has also stated that the wife of the accused was weeping in the kitchen, when she was sorting the Daal and he enquired from her why she was weeping, to which she replied that the cash, which was seized, was the consideration money of the sale of the land in the village, which they had sold.
24. PW 51, Shuja Shafqat, SFO, Finder Prints FSL (cited as the prosecution witness no.67) has while in examination in chief, stated that the thumb impression on the power of attorney did not tally with the thumb impression on the state subject, has in cross examination deposed that he cannot say whether the thumb impression on power of attorney is of left hand or right hand and his qualification as finger print expert has not been recognised by the State and in his opinion the right and left hand impression of finger prints cannot resemble.
25. Another witness, namely, Mohammad Yousuf Dar (cited as witness no.6 in the list of the witnesses by the prosecution) during cross examination stated that the father of the appellant was giving him the salary and the money, which was seized at Rawalpora, was the sale proceeds of the land sold by the father of the accused. He also states that he and the son of the appellant had conveyed to the vigilance people that the money was the CRC no.06/2011 Page 53 of 70 sale proceeds of the land. The brother of the appellant is doing the business of the spare parts and the father of the appellant used to sell the poplar and willow tress after every four years. Even the father of the appellant has the saffron land and the orchards with the almonds and walnut trees. The statement given by the prosecution witness admits that the family of the accused was a joint family and the maximum articles seized from the house of the appellant, in his absence, belonged to his father.
26. The above discourse of the statements made by the prosecution witnesses indubitably supports the defence and not the prosecution.
27. The defence witnesses have all in all corroborated the case of the appellant before the learned Trial Court. DW, namely, Zahoor Ahmad, in his statement has stated that he has purchased willow trees from the appellant/ accused in the year 1993 and also from the father of the appellant respectively in the year 1993-94 for about Rs.11 to 12 lacs and that the money was paid to the father of the accused and sometimes to the accused/ appellant as well. The said amount was paid in about one or two years from 1993 to 1995.
28. Learned Trial Court has, after making the superfluous verbose discussion, observed that the claim of the prosecution concerning non-felling of poplar trees do not contain any merit. Learned Trial Court discussed series of communications, heavily relied upon by the prosecution, but finally the learned Trial Court opined CRC no.06/2011 Page 54 of 70 that given the non-availability of the original report, the same cannot be taken into consideration.
29. Thereafter the learned Trial Court took the help of the provisions of the Section 14 of the Public Men and Public Servant Declaration of Assets Act, 1983 read with the Section 12 of the Act of 1983. Thus, it is imperative to have a discourse as about the Act of 1983. It provides for declaration of the assets of the public men and the public servants and to regulate the conditions of the service of the public servants and also for the matters connected therewith. The Act of 1983 has come into being in the Thirty Fourth year of the Republic of India. It extends to the whole of the Jammu and Kashmir State. Subsection
(b) of Section 2 of the Act of 1983 says that "family member" means the wife or husband as the case may be, and includes father, mother, step mother, grandfather, grandmother, brother, sister, children, step-children, adopted daughter, adopted son and any other person related to whether by blood or marriage, but such member should be 'wholly dependent' on the public man or the public servant, as the case may be. Minute interpretation of the Subsection (b) of Section 2 is very important because it says contrary to what has been commented by the learned Trial Court on the expression of "family members" in the impugned judgement. Who is a "public man" is demarcated in Subsection (e) of Section
2. It provides that a "public man" means a person who is:
a member of either House of the State Legislature; a CRC no.06/2011 Page 55 of 70 member of the Council of Ministers (including a Minister of State); a member of the Municipal Council or the Town Area Committee or an elected member of a Notified Area Committee; a Chairman of the Municipal Council or the Town Area Committee or the Notified Area Committee. Insofar as the expression "public servant" is concerned, Subsection (f) of the Section 2 of the Act of 1983 says that the "public servant" means the public servant as defined in Section 21 of the State Ranbir Penal Code but does not include a public man as defined in the Act of 1983. It is germane to mention here that in the present case the father, mother, sister, brother-in-law are not dependent on the appellant. Section 9 of the Act of 1983 stipulates that every public servant shall submit to the prescribed authority a return of all the assets possessed by him and his family members within three months after he becomes a public servant. Section 12 is worth to be seen. It imposes the restriction in acquiring and transferring the property. It postulates that no public servant shall in his own name or in the name of any of his family member acquire or transfer any immovable property unless he has obtained permission in writing from the prescribed authority. Here in the present case, the appellant has obtained the sanction/permission from the J&K State Government for acquiring the properties at various places, including the property situated at Rawalpora. For executing any formal document for transfer or acquiring of a property by a public/ government servant, he/she is CRC no.06/2011 Page 56 of 70 required to, first of all, have had a permission and sanction from the Government therefor and only thereafter execute a formal indenture. Same is the position in the present case. The appellant has earned a valid sanction and permission from the J&K State Government, which is a final authority on the subject and is not open to discussion or question. Even otherwise, it is now well settled, that mere acquisition of the property does not constitute offence.
30. In the context of above, it may not be out of place to mention here that the appellant has not only disclosed all the properties those he possessed but also those he acquired. Statements of the witnesses of both the prosecution as well as the defence have unequivocally disclosed that the property bought by the appellant at Rawalpora is by way of a proper document and sanction to this extent has also been given by the Government vide Government Order no.82-PDD dated 3.3.1997, as has been admitted by the learned Trial Court as well. Thus, there was no occasion for the learned Trial Court to say, treat and declare the property at Rawalpora as Benami.
Ironically, learned Trial Court has not only kept aside and ignored the statements of prosecution as well as defence witnesses but has also, in essence and core, questioned the veracity of the Government Order no.82- PDD dated 3.3.1997, which amounts to stepping beyond its jurisdiction. The judgements discussed qua Benami transaction do not at all equate or relate to the subject CRC no.06/2011 Page 57 of 70 matter of the case inasmuch as some of the judgements discussed by the learned Trial Court relate to fictitiousness of the documents, created to offer an explanation for disproportionate wealth. However, in the present case, the Government Order no.82-PDD dated 3.3.1997 cannot be disregarded and labelled as a fictitious document to offer an explanation for disproportionate wealth. Learned Trial Court has not taken into consideration that sanction in favour of the appellant for purchase of the property in question from his Sister has been sealed and stamped by, none other than, the Government and in that view of the matter the property in question could not have been discussed or made basis for passing impugned Judgement and Sentence. It is not impertinent to mention here that the appellant has complied with the requirements of law as a government servant by seeking the permission from the Government and by reflecting the house in the Annual Property Statements and also by indicating the source of the income for purchasing the house. There was no further requirement to be complied with by the appellant in regard to the purchase of the house from his sister, as such. It is well settled that the burden of showing that a particular transaction is benami and the owner is not the real owner, always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character, which would either directly prove the fact of benami or establish CRC no.06/2011 Page 58 of 70 circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil, which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. [Vide:
Jayadayal Poddar v. Mst Bibi Hazra (1974)]. It is not enough merely to show circumstances which might create suspicion because the court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence. Here in the present case, the prosecution witnesses have not at all supported the prosecution story before the learned Trial Court. [See: Krishnanand Agnihotri v. State of M.P. AIR 1977 SC 796]. Thus, howsoever strong may be the suspicion of the court, it cannot take place of proof, as has been tried and followed by the learned Trial Court while rendering the impugned judgement. When I turn to the evidence, I find that the prosecution has failed to discharge the allegations levelled against the appellant of benami transactions and disproportionate assets. Beyond raising the suspicion and doubt in the mind of the learned Trial Court, the prosecution has not been able to lead any legal evidence of a definite character which would establish the benami character of the properties in question. On the contrary, the evidence led by both prosecution as well as defence, CRC no.06/2011 Page 59 of 70 bolstered the case of the appellant before the learned Trial Court. Having said that, the impugned judgement and sentence is liable to be set-aside.
31. The Government of Jammu and Kashmir through the Power Development Department, Civil Secretariat, has issued grant of permission for purchase of a house in favour of the appellant vide Government Order no.82-
PDD of 1997 dated 18th March 1997. The sum and substance of the said Government Order dated 18th March 1997, is, therefore, imperative to be reproduced hereunder:
"Government of Jammu and Kashmir Power Development Department Civil Sectt:
Subject:- Grant of permission to purchase a house.
Government Order No: 82-PDD of 1997 D a t e d : 18 . 03 . 1997 In pursuance of the J&K Government Employees (Conduct) Rules 1971, sanction is accorded to the grant of permission in favour of Shri G.A.Dar, Executive Engineer, TLCD, Srinagar, to purchase a dwelling house from his sister at Rawalpora Srinagar in consideration of Rs.Nine Lacs only.
By order of the Government of Jammu & Kashmir.
Sd/-
(G.M.Dar) Under Secretary to Government, Power Development Department.
No: PDD/IV/34196 Dated 18.03.1997
Copy to the:
1. Secretary to Government, General Admn. Department
2. Joint Commr. (Power) Jammu
3. Chief Engineer, System & Operation Wing.
4. Concerned."
32. What is inferred from the aforesaid quoted Government Order no.82-PDD of 1997 dated 18th March 1997, is that CRC no.06/2011 Page 60 of 70 the Government of Jammu and Kashmir has granted and given the permission in favour of the appellant for purchasing the house in question, which has been declared as disproportionate property by the learned Trial Court. Can the said property be declared by the learned Trial Court a "disproportionate property" in presence of the aforesaid Government order? Answer thereto is negative. The reason being once the Government has sealed and authorised an employee to purchase a particular property, for which permission was sought for by such employee, it is res integra for any authority or for that matter learned Trial Court, to declare the said property as 'disproportionate property' inasmuch as such declaration made in the present case by learned Trial Court, would amount to stepping into the shoes of the Government of Jammu and Kashmir. Not only this, declaring the aforesaid property 'disproportionate' would tantamount to quashing and setting aside the Government Order no.82-PDD of 1997 dated 18th March 1997, by the learned Trial Court that too in the criminal proceedings. The right acquired by the appellant on the date of the raid vis-à-vis the aforesaid property is unquestionable and undiscussable muchless ignoring and disregarding the same.
33. The Prevention of Corruption Act, 2006 (1919 AD) was promulgated by Shree Yuvraj under Section 5 of the Jammu and Kashmir Constitution Act, 1996 and published in the Government Gazette dated 25th CRC no.06/2011 Page 61 of 70 Maghar, 2006. A Public servant is said to have committed the offence of criminal misconduct, as provided by Section 5 of the Prevention of Corruption Act, if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the State Ranbir Penal Code, or if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been or to be or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the persons so concerned; or if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or if he by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person any valuable thing of pecuniary advantage; or 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 CRC no.06/2011 Page 62 of 70 pecuniary resources or property disproportionate to his known sources of income. Subsection (2) of Section 5 of the Act of 2006, envisages that any public servant who commits the criminal misconduct shall be punishable with imprisonment for a term, which shall not be less than one year but which may extend to seven years and shall also be liable to fine. In the backdrop of the above discussion, the provisions contained in Section 5(1)(e) of the Act of 2006 are self-contained provisions. The first part of the Section casts a burden on the prosecution and the second on the accused. When Section 5 (1) (e) uses the words "for which the public servant cannot satisfactorily account", it is implied that the burden is on such public servant to account for the sources for the acquisition of disproportionate assets.
34. The provisions of Section 5(1) (e) of the Act of 2006, have been subject of the judicial interpretation. First the expression "known sources of income" in the context of Section 5(1)(e) meant "sources known to the prosecution". The other principle is equally well-settled. The onus placed on the accused under Section 5(3) was, however, not to prove his innocence beyond reasonable doubt, but only to establish a preponderance of probability. These are well-settled principles laid down by the Supreme Court in C.S.D. Swamy v. The State AIR 1960 SC 7; Sajjan Singh v. State of Punjab AIR 1964 SC 464; and V.D. Jhagan v. State of U.P. AIR 1966 SC 1762. That takes us to the difficult question as to the nature and the extent CRC no.06/2011 Page 63 of 70 of the burden of the proof under Section 5 (1) (e) of the Act of 2006. The expression 'burden of proof' has two distinct meanings: (1) the legal burden. i.e. the burden of establishing the guilt; and (2) the evidential burden, i.e. the burden of leading evidence. In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution and that the burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. The ingredients of the offence of criminal misconduct under Section 5(2) read with Section 5(1)(e) of the Act, are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the following facts before it can bring a case under Section 5 (1) (e), namely, (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or the property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution, and (4) it must prove quite objectively, that such resources or property found in possession of the accused CRC no.06/2011 Page 64 of 70 were disproportionate to his known sources of income. Once these four ingredients are established, the offence of the criminal misconduct under Section 5(1) (e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of the disproportionate assets. The extent and nature of burden of proof resting upon the public servant to be found in possession of the disproportionate assets under Section 5(1) (e) cannot be higher than the test laid by the Supreme Court in Jhagan's case (supra), i.e. to establish his case by a preponderance of probability. That test was laid down by the Supreme Court following the dictum of Viscount Sankey, L.C. in Woolmington v. Director of Public Prosecutions, (1935) AC 462.
35. The learned Trial Court had placed an impossible burden on the prosecution to disprove all the possible sources of income which were within the special knowledge of the accused. As laid down in Swamy's case (supra), the prosecution cannot, in the very nature of the things, be expected to know the affairs of a public servant found in possession of the resources or the property disproportionate to his known sources of income, i.e. his salary. Those will be matters specially within the knowledge of the public servant within the meaning of Section 106 of the Evidence Act. Section 106 of the Evidence Act envisions that when any fact is especially within the knowledge of any person, the burden of CRC no.06/2011 Page 65 of 70 proving that fact is upon him. In this regard, the phrase the "burden of proof" is clearly used in the secondary sense namely, the duty of introducing the evidence. The nature and extent of the burden cast on the accused is well settled. The Supreme Court has in plethora of judgement held that the "accused is not bound to prove his innocence beyond all reasonable doubt. All that he need to do is to bring out a preponderance of probability". However, in the present case, the learned Trial Court has bound the appellant/ accused with the duty and obligation to prove his innocence beyond all reasonable doubt. Although he produced all what was required for him before the learned Trial Court to show that the properties in question are not disproportionate assets and that there is no benami transaction, yet the learned Trial Court has cast doubt on the Government Orders, granting sanction in favour of the appellant for acquiring the properties in question.
36. The question whether or not the appellant/accused had established a preponderance of probability is a matter relating to appreciation of evidence. I have gone through the statements deposed/given by the prosecution witnesses. I have also read the statements deposed/ given by the defence witnesses. I have perused the record as well. There is overwhelming evidence led by the appellant showing that his father was a man of affluent circumstances. The father of the appellant, as envisaged under Subsection (b) of Section 2 of the J&K Public Men CRC no.06/2011 Page 66 of 70 and Servants Declaration of Assets and other Provisions Act, 1983 was not "dependent" muchless "wholly dependent" on the appellant/accused. Thus, the provisions of the J&K Public Men and Servants Declaration of Assets and other Provisions Act, 1983, have been made use of by the learned Trial Court rearwardly. Section 9 of the Act of 1983 says that every public servant shall submit to the prescribed authority a return of all assets possessed by him and his "family members" within three months after he becomes a public servant. This Court in S. K. Puri and others v. State and another 2004 (2) JKJ HC 353, has categorically held that mere acquisition of property does not constitute offence under the provisions of the Act of 1983 but it is a failure to satisfactorily account for such possession that makes the possession objectionable as offending the law. In that view of the matter, the learned Trial Court has employed the provisions of the Act of 1983 fleetingly and nonchalantly. Subsection (b) of Section 2 of the Act of 1983, in unequivocal and explicit terms, stipulates that the "family members" mean the wife or husband as the case may be, and includes father, mother, step mother, grandfather, grandmother, brother, sister, children, step- children, adopted daughter, adopted son and any other person related whether by blood or marriage, but all of them should be "wholly dependent" on the public servant. Here in the present case, it is totally contrary to provisions of Subsection (b) of Section 2 of the Act of 1983, CRC no.06/2011 Page 67 of 70 because the father, sister, brother-in-law, brother of the appellant/accused or any other family member, except wife of the appellant, had neither been marginally nor wholly dependent on the appellant. The appellant/ accused has by leading evidence and placing on record the documents established that his father, brother-in-law, sister and brother were men of substantial means. Even the evidence led by the prosecution shows that the family of the appellant comprises of rich agriculturists and are estate holders and have also income from fruit and poplar trees and other resources. The cars, made use of by the prosecution to portray them as disproportionate properties, have been shown and disclosed by the transport authority to be in the name of father and mother of the appellant and not in the name of the appellant/ accused. The amount of Rs.6,92,700/- alleged to have been seized from the house of the appellant / accused at Rawalpora during the raid belongs to father and brother-in-law of the appellant/accused. To buttress this fact, the appellant/accused had adduced the evidence and had also produced the documents before the learned Trial Court. However, the learned Trial Court brushed aside the said imperative evidence. All this evidence is sufficient to create a doubt as to whether the appellant/ accused was in possession of disproportionate assets. There is certainly a preponderance of probability that the amount seized from the house of the appellant did not belong to him but belonged to his father and brother-in-
CRC no.06/2011 Page 68 of 70law. It is not impertinent to mention here that what emerges from the judgement impugned is that learned Trial Court has termed most of the prosecution witnesses not believable, though they are prosecution witnesses and have never been declared hostile. The prosecution cannot, therefore, wriggle out of their statement.
37. I have carefully examined the witnesses adduced by the appellant/accused before the learned Trial Court. The appellant has succeeded in furnishing the explanation as regards the source of income. Even I find ample support for his explanation in the prosecution evidence itself. The evidence of the prosecution witnesses clearly supports the explanation given by the appellant. The appellant had thus, discharged the burden of explaining the sources of those amounts. The Supreme Court has held that even non-mention in the property statement of a public servant would have no consequence and is immaterial. {See: Trilok Chand Jain v. State of Delhi, AIR 1977 SC 666; Ravindra Kumar Dey v. State of Orissa, AIR 1977 SC 170; Saddiq and others v. State, 1981 Cr. L.J. 379; Shaikh Farid Hussainsab v. State of Maharashtra, 1983 Cr.L.J.487; M. Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad, 1992 (2) Crimes (SC) 1197; Sangaraboina Sreenu v. State of A.P., 1997 (5) SCC 348; Jagan M. Seshadri v. State of T. N., AIR 2002 SC 2399; D.S.P., Chennai v. K. Inbasagaran, AIR 2006 SC 552; Ashok Tshering Bhutia v. State of Sikkim, AIR 2011 SC 1363; R. Rachaiah v. Home Secretary, CRC no.06/2011 Page 69 of 70 Bangalore, 2016 AIR SC 2447; Gunjit Singh v. The State 1996 (4) Crimes (HC) 1; M. Sreeramulu v. State of A.P. 2003 (4) Crimes (HC) 124; Jagdish Raj v. State, 2017 (3) JKJ 1990 [HC]}
38. For all that has been discussed and done above, the appeal on hand is allowed and the impugned Judgement and Sentence dated 31st May 2011, passed by the learned Special Judge, Anticorruption, Kashmir against the appellant in connection with the case FIR no.101/1997, is set-aside. As a corollary, the appellant is acquitted of the offences charged against him in the case FIR no.101/1997 P/S VOK under Section 5(1) (e) read with Section 5 (2) of the Prevention of Corruption Act and Section 14 of the Public Men and Public Servants Declaration of Assets and other Provisions Act, 1984. Since the appellant is on bail, the bail bonds shall stand discharged.
39. Appeal allowed.
40. Record be sent down along with copy of this judgement.
( M. K. Hanjura ) Judge Srinagar 05.10.2018 Ajaz Ahmad CRC no.06/2011 Page 70 of 70