Jammu & Kashmir High Court
S.K. Puri And Ors. vs State And Anr. on 26 February, 2004
Equivalent citations: 2004CRILJ3198, 2004(2)JKJ353
JUDGMENT S.K. Gupta, J.
1. By means of this petition, the petitioners seek to quash the impugned order dated 23.8.1999 passed by the learned Special Judge, Anti-Corruption, Jammu, charge sheets framed by him against the petitioners No.1 and 2 under Section 5(2) of Prevention of Corruption Act, 2006, read with Sections 201/109/120B of R.P.C and petitioner No. 3 Under Section 120B/109/201 of R.P.C, as well as criminal proceedings connected thereof in the said court in FIR No. 42 of 1996 of Police Station Vigilance Organisation, Jammu and also the sanction to prosecute petitioner No. 2, issued by respondent No. 1 under Government Order No. 72-GAD (Vig) of 1997 dated 17-07-1997, by issuance of writ of certiorari in exercise of jurisdiction under Articles 226/227 of the Constitution of India read with Sections 103/104 of the Constitution of Jammu & Kashmir.
2. Facts of the case, taken from record, depicted in narration, are that petitioner No. 1 S.K. Puri, the then Managing Director, Housing Board, Jammu (now retired), petitioner No. 2, Sumit Kumar Puri, Assistant Engineer, FDD and Smt. Savitri Devi, petitioner No. 3 were sent up for trial, for having allegedly committed offences punishable under Section 5(2) Prevention of Corruption Act, 2006 read with Sections 201/109/120B R.P.C, by petitioners No. 1 and 2 and Under Section 120B/109/201 R.P.C, by petitioner No. 3. According to prosecution, petitioner Nos. 1 and 2 father and son, as public servants, while posted on different assignments have accumulated assets disproportionate to their known sources of income by corrupt and illegal means by mis-use of their official position as public servants. During search of a residential house of the accused situated at 68-A/D Gandhi Nagar, Jammu, cash and jewellery, besides selective goods, detailed in the seizure memo, were recovered. Most of the assets were found having been raised by the petitioner Nos. 1 and 2 in Benami transaction. The details of the properties belonging to petitioner Nos. 1 and 2 were either found in their names or in the name of petitioner No. 3 and other family members. Petitioner No. 3, Savitri Devi, was found to have no source of income and residing with petitioner No. 1 after the death of her husband late Badri Nath, uncle of petitioner No. 1, with whom she was married. It was further stated to have been found that petitioner Nos. 1 and 2 in connivance with petitioner No. 3 acquired assets in her name to conceal their ill-gotten wealth and in furtherance of the said conspiracy, petitioner No. 3 helped petitioner Nos. 1 and 2 in acquiring assets in her name. The Investigating Agency considered the income of the petitioners and their family members and found them in possession of disproportionate assets worth Rs. 80,85,733/- against their likely savings of Rs. 7,22,084/62 leaving a gap of Rs. 73,18,648/87 which they were unable to explain. To this extent of the amount assets were disproportionate to their known sources of income which has been stated to have been acquired by mis-use of their official position as public servants.
3. The trial court after hearing the arguments and scanning the material including the documents explicitly delineated in the report under Section 173 Cr.P.C, framed the charges against the petitioners vide order dated 23.8.1999. The charges framed against the petitioners by the learned Special Judge, Anti-Corruption, Jammu are reproduced in verbiage and read as under;
"Charges framed against petitioner No. 1.
1- That you while posted as Public Servant on various assignments from 22.11.1960 to 31.7.1996 acquired assets disproportionate to your known sources of income and on or about 4.12.1996 you had been found in possession of pecuniary resources or property in your name and others to the extent of 73,18,648.87 which were disproportionate to your known sources of income and for which you could not satisfactorily account for and you thereby committed offence punishable under Section 5(2) P.C Act, 2006 read with Section 5(1) (e) of P.C.Act 2006 within the competence of this court.
2. That you in order to conceal the property and to avoid detection of the same entered into criminal conspiracy with A-2 and A-3 and in furtherance of the criminal conspiracy raised the assets on the name of said persons and thereby committed offences punishable under Section 120B R.P.C which is also within the cognizance of this Court.
3. That you intentionally suppressed the information regarding the assets in your annual property statements and also raised various assets without obtaining permission from the competent authority, thus, violated the provision of Section 12 and 14 of the J&K Public Men and Public Servants Declaration of Assets and other provisions of the Act 1983 which is also punishable under Section 5(2) P.C. Act, 2006 and is within the cognizance of this court."
Charges against petitioner No. 2.
1- That you while posted as public servant as Assistant Engineer, P.D.D during your service period acquired assets disproportionate to your known sources of income and on or about 4.12.1996 you had been found in possession of the pecuniary resources or property in your name and others to the extent of Rs. 73,18,648.87 which were disproportionate to your known sources of income and for which you could not satisfactorily account for and you thereby committed offence punishable under Section 5(2) P.C.Act, 2006 read with Section 5(1) (e) of the P.C.Act, 2006 within the competence of this court.
2. That you in order to conceal the property and to avoid detection of the same entered into criminal conspiracy with A-1 and A-3 and in furtherance of the criminal conspiracy raised the assets on the name of said persons and thereby committed offences punishable under Section 120B RPC which is also within the cognizance of this court.
3. That you intentionally suppressed the information regarding the assets in your annual property statements and also raised various assets without obtaining permission from the competent authority, thus violated the provisions of Section 12 and 14 of the J&K Public Men and Public Servants Declaration of Assets and other provisions of Act, 1983 which is also punishable under Section 5(2) P.C.Act and is within the cognizance of this court."
Charges against petitioner No. 3.
1. That you during the year 1960 to 1996 hatched a criminal conspiracy with accused 1 and 2 and in furtherance of the criminal conspiracy the assets actually acquired by A-1 and A-2 were raised by them in your name in a Benami Manner so that the assets belonging to them could be concealed to avoid detection by law enforcing agencies and to save A-1 and A-2 from legal consequences and thereby committed offence punishable under Section 120B R.P.C which is within my cognizance."
Petitioners have challenged criminal proceedings pending before the learned Special Judge, Anti-Corruption, Jammu, charges framed against them and the sanction to prosecute petitioner No. 2 issued under Government Order No. (72-GAD Vig) of 1997) dated 17.7.1997.
4. I have heard the learned counsel for the parties in extenso, and also perused the record, meticulously. The petition even though has been filed under Articles 226/227 of the Constitution of India read with Sections 103/104 of the Constitution of Jammu & Kashmir, yet objection was taken by Mr. B.S. Slathia, learned AAG, that such petition was not maintainable and instead an appropriate petition under Section 561A Cr.P.C in a given case could be preferred for challenging proceedings pending before a criminal Court. Mr. P.N. Raina, learned counsel appearing for the petitioners, immediately submitted that he entertains no objection in case this petition is treated as petition under Section 561-A Cr.P.C. Mr. Raina, learned counsel further pleaded that the judgment relied upon by the learned AAG reported in AIR 1998 SC 128, M/S Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors., cannot be disputed in so far as the law laid down therein is concerned. The petition instead of being heard and decided as a petition under Articles 226/227 of the Constitution read with Sections 103/104 of the State of the Constitution, can be heard and decided as a petition under Section 561-A Cr.P.C. The respondents, in fact, have not filed the reply which was must, if the petition was pending under Articles 226/227 of the Constitution of India read with Sections 103/104 of the Constitution of Jammu & Kashmir, though it is not required when a petition is heard and decided under Section 561-A Cr.P.C. The petition, as such, can be heard and decided as a petition under Section 561-A Cr.P.C. It was further submitted that, if the petition is to be heard as petition under Articles 226/227 of the Constitution of India, there being no reply filed by the respondents, averments made in the writ petition are to be taken as correct. Mr. P.N. Raina, learned counsel appearing for the petitioners, submitted that High Court can exercise its power of judicial review in criminal matters. To support the proposition, he submits that where the court finds that jurisdiction under Article 226 of the Constitution of India could not be invoked, it can certainly treat the petition under Article 226 as petition under Section 561A Cr.P.C. In dealing with an identical proposition, the Apex Court in case reported as 1997 AIR SCW 4084, titled M/S Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors., referred supra held as under;
" ...Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate Courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution."
5. Though various grounds of challenge have been taken by the petitioners in the writ petition, but they mainly challenged the criminal proceedings and the charges framed against them, principally, on the ground that the trial court has failed to consider the import and effect of the income tax and wealth tax returns, which were part of the record at the time of framing of the charges. On the dichotomy of the record and order impugned passed by the trial court, it is indisputably gatherable that an application came to be filed by the petitioners in alleging that even though the Investigating Agency had seized income tax and wealth tax returns of the petitioners, yet the same had not been made part of the record of the court and kept in a separate file without giving its reference in the report under Section 173 Cr.P.C. It was further intimated in the said application that in response to questionnaire given by the Investigating Agency, the petitioners had again sent their income tax and wealth tax returns and after such returns though got verified both in Jammu as well as in Delhi, but still had not been made the part of the record. The prayer of the petitioners for placing on record the documents of their income tax and wealth tax returns was allowed by the Court, which is clearly manifest from the order dated 23.8.1999. The documents placed on record with the permission of the trial Court, at the time of hearing on the question of charge, are detailed as under;
"In respect of petitioner No. 1 Sh. S.K. Puri:
(a) Assessment order dated 21 Aug. 1971 for the period ending March 1966 to ending March 1971 of HUF with Sh. Sansar Chand Puri as head of the family(HUF)
(b) Permission granted by the Municipality Jammu for construction of Septic Tank etc. in the name of Sansar Chand Puri under No. 32 dated 27.4.67 of house, property 68 A/D, Gandhinagar, Jammu.
(c) Income tax returns for the year 1996-97(Assessment year 1997-98) In respect of petitioner No. 2 (Sumit Puri).
(a) Income Tax returns for the year 1995-96(Assessment year 1996-97) and cumulative balance sheet as on 31.3.96.
(b) Assessment year for the period 1996-97 Under Section 143 Income Tax Act, with cumulative balance sheet as on 31.3.1997.
(c) Agreement to sell with respect to 1st flood of House No. 180-A Mirabagh, Delhi executed between Sumeet Puri and Sh. Bhagwan Dass Verma of Delhi.
In respect of petitioner No. 3 Smt. Savitri Devi.
(a) Income Tax return for the year 1994-95(Assessment year 1995-96) with balance sheet as on 31.3.95.
(b) Income tax return for the year 1995-96(assessment year 1996-97) with cumulative balance sheet as on 31.3.96.
(c) Income tax return for the year 1996-97(Assessment year 1997-98 cumulative balance sheet as on 31.3.97.
(d) Assessment orders for the years 1995-96 and 1996-97 under Section 143 income tax Act.
Apart from the aforesaid record relating to the petitioners 1 to 3, petitioners also have placed on record the Income tax returns and assessment orders of Hindu undivided family(HUF) of late Sansar Chand Puri(2) Santosh puri W/O petitioner No. 1 (3) Dr. Amrita Puri W/O Petitioner No. 2 and (4) Shweta Puri D/0 petitioner No. l. The documents so filed are:
I. In respect of HUF of late Lala Sansar Chand Puri.
(a) Income tax return for the year 1994-95
(b) Income tax return for the year 1995-96
(c) Income tax return for the year 1996-97
(d) Assessment orders for the year 1995-96,1996-97 and 1997-98. Alongwith attested balance sheets of respective years.
II. In respect of Smt. Santosh Puri
(a) Income tax return for the year 1994- 95 with cumulative balance sheet.
(b) Income tax return for the year 1995-96 with cumulative balance sheet.
(c) Income tax return for the year 1996-97 with cumulative balance sheet.
(d) Assessment orders for the year 1995-96,1996-97 and 1997-98.
(e) Wealth tax assessment order for ending March 92 and cumulative attested balance sheets of respective years.
III. Smt. Amrita Puri.
(a) Assessment orders for the years 1995-96, 1996-97 and 1997-98.
(b) Income tax returns for the year 1995-96, 1996-97 and 1997-98
(c) Wealth tax assessment order for the period ending March, 1993.
IV. In respect of Miss Shweta Puri.
(a) Income tax returns for the years 1995-96,1996-97 and 1997-98.
(b) Assessment orders for the years 1995-96,1996-97 and 1997-98."
6. The order of the learned Special Judge, Anti-Corruption, Jammu on the application of the petitioners in permitting the placing of the aforesaid documents on record, having not been challenged by the prosecution assumed finality. It is significant to point out that once the trial court had allowed the documents to be brought on record on the application of the petitioners before framing the charges, the consequences thereof could not be avoided.
7. The main plank of the petitioners contention is that after the record relating to and comprising of income tax and wealth tax and assessment order was brought on record, the petitioners were entitled to their consideration by the trial court at the time of framing the charges which is claimed to have not been done in this case and is the principal ground of challenge to the charges framed against them and criminal proceedings pending in the trial court.
8. The final question that calls for the determination is whether failure of the trial court to consider the said documents has resulted in framing of the charges against the accused and allowing the trial court to proceed which otherwise could not commence. Mr. B.S. Slathia, learned AAG, however, vehemently urged that petitioners had no right to place any document on record of the file of the learned Special Judge, Anti-Corruption, Jammu at the time of framing of the charges and that only record which is required to be considered by the trial court was the record submitted in the report under Section 173. In repelling the contention of the learned AAG, it is contended by Mr. Raina, petitioners' Advocate, that this ground is not available to the respondents for having not challenged the order of the trial court, permitting the placing on record the documents produced by the petitioners prior to the framing of the charges, and the order has become final to that extent. To support his contention, Mr. Raina has placed reliance on a decision of the Apex Court rendered in case reported as 1996(3) Crimes 85 (SC), Satish Mehra v. Delhi Administration and Anr. which held as under;
"The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at the early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code."
9. In placing reliance on the ratio of the aforesaid judgment, the Special Judge, Anti-Corruption, Jammu, was within his powers to consider even materials which accused had produced at the stage contemplated in Section 227 of the Code. It is further elucidated that not only the material which is on record was to would be considered, but even such documents which depict the compelling circumstances, produced by accused at the time of framing of the charges and also to consider the documents i.e income tax and wealth tax returns and assessment orders once having been allowed to be placed on record, besides, they also having been alleged to have been seized by the prosecution and forming a separate file with the record of the case, sufficiently dispels the contention of Mr. B.S. Slathia, learned AAG, and is concluded against the prosecution. The failure to consider the aforesaid documents of income tax and wealth tax returns and assessment orders by the trial court whether has resulted in framing of the charges and commencing of the trial which could otherwise have not been framed and commenced, had these documents been considered, is a question which directly came to be considered by the Apex Court in case reported as AIR 2000 SC 2583, State of Madhaya Pradesh v. Mohan Lal Soni and held as under;
"Para-6. We have examined the rival submissions made by the learned senior counsel for the parties. Our attention was specifically drawn to the earlier order of the High Court dated 8.9.1997 passed in Criminal Revision No. 337/97 in which the trial Court was directed that the documents made available by the accused during investigation be produced and they be taken into consideration by the court while framing charges. The said order became final, it having not been challenged further. In this situation the parties and the trial Court were bound and governed by the said direction. Since the trial Court did not follow the said direction, the High Court having considered all the material including the documents produced by the prosecution itself, which were collected during the course of investigation, and on being prima facie satisfied taking the documents on their face value held that no offence was made out and as such no charge could be framed against the respondent. In this view, the High Court set aside the order of the trial court and passed the order discharging the respondent. The High Court in the order under appeal has elaborately considered the documents collected during the course of investigation and produced by the prosecution itself which were available at the time of framing charges. It may be added that most of the documents relate to the income tax returns or income-tax assessment orders. All these documents pertain to the period prior to 26.3.1993. Some of them even relate to the year 1988. In the normal course the documents could not have been prepared in anticipation that the respondent would have to face such charges on a future date. The documents being the orders of assessment or return filed with the income-tax authorities on their face value supported the case of the respondent.
Para-12. From the decisions referred to in the same paragraph and the decisions already referred to above there was no bar to consider the material on record in the case on hand, which was collected during the course of investigation and produced before the court and particularly in view of the directions given earlier by the High Court.
Para-13. In this view, the High Court looking to the material and documents that were made available at the stage of framing charges on their face value in the light of the directions given earlier in Criminal Revision No. 337/97 and bearing in mind the position in law concluded that charges could not be framed against the respondent, consequently, set aside the order of trial Court and discharged the respondent."
In the aforesaid judgment, the Apex Court has also taken note of the decision given in Anand Bezbaruah v. Union of India (1994 Criminal Journal 12) in which the Gauhati High Court was of the view as under;
"that where accused was charged with the offence of having resources and property disproportionate to his income and trial Court failed to consider and evaluate the income tax return which clearly established that the property included in the assets of accused and shown to be disproportionate is the wife's property brought from her own resources and should have been excluded from assets of the accused."
This judgment is applicable in all fours to the facts of the present case when viewed from any angle.
10. The petitioners case is also that the documents were in the record of the trial court and had to be considered. In the present case, the plea raised by the petitioners is that though the documents were allowed to be placed on record by the trial court vide order dated 23.8.1998, but the same had not been considered which otherwise were required to be considered once these have been brought on record and formed a part of the file. What value is to be attached to such like aforesaid documents has already been considered by the Apex Court in the Judgment of Mohan Lal Soni's case referred supra. Similar question with regard to the wealth and income tax returns came up for consideration before the Apex Court in case reported as AIR 1993 SC 313, M. Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad and it has been held as under;
"para-12. Dr. Ravindra Reddi had shown the loan of Rs. 20,000/- to his father-in-law namely, the appellant herein in his Income-tax returns. Similarly PW-21 had also shown the loan of Rs. 20,000/- as evidenced by his income-tax returns Exs. P-155 and P-111. Besides the appellant himself had shown in his Income-tax Returns Ex. P-148 the receipt of the gift of Rs. 5,0007- from his father-in-law and the sale proceeds of Rs. 11,2407- obtained by the sale of the gold necklace of his wife was shown in his wife's Wealth-tax Returns Exs. P-53 to P-55. The learned counsel for the respondent is not able to challenge the above Wealth-tax and Income-tax returns, evidently for the reason that he could not do so in the face of the unimpeachable documents. As rightly contended by Mr. P.P. Rao, these documents could not have been manipulated and concocted anticipating this prosecution in 1983."
In the like manner, the Apex Court in case reported as AIR 1987 SC 863, Mohd. Mumtaz v. Smt. Nandini Satpathy and Ors., held with respect to income tax returns and assessment orders as under;
"Para-18. The Income-tax Officer examined in detail each one of the items of assets said to have been unaccounted and suppressed and the order passed by the Income-tax Officer which has been placed on record clearly explains all the items as also entries pertaining to the house construction and other assets and shows that there is nothing to indicate that respondent No. 1 was possessed of assets disproportionate to his means. ............................... We agree that in the light of the facts on record and the order passed by the Income-tax Officer which explains all the items of assets alleged to be unaccounted and suppressed, the charges against respondent No. 1 appear to be groundless."
11. A similar view has been taken by a co-ordinate Bench of this Court in judgment rendered in 73/1999-(561 -A), titled Rajesh Sharma v. State and Ors. & 52/2000-(561-A), titled Brij Mohan Sharma v. State and Ors., decided by a common order on 18.3.2002. In this case also, the accused were charged under Section 5 (2) (1) (e) of the Prevention of Corruption Act, read with Section 120B RPC and Sections 12 and 14 of the Jammu & Kashmir Public Men and Public Servants Declaration of Assets and Other Provisions of the Act, 1983, for possessing assets disproportionate to their known sources of income and further purchased and transferred the property without the permission of the prescribed authority. In the case, the accused had produced the income tax assessment orders and returns of his son, who, as a separate unit, had been paying income tax. But this fact had not been taken into account and the plea was taken by the Advocate appearing for the State that income tax record produced by the accused is irrelevant at the time of framing the charge and the Court had to make up its mind on the basis of the material placed on the record by the prosecution and no fresh documents can be produced and considered. The High Court, while accepting the case of the accused, discharged them of the offences with which they were charged by the Special Judge, Anti-Corruption, in allowing the petition and quashing the charge sheet along with FIR and held as under:
"In the light of the facts and circumstances of the case and the case law discussed hereinabove, the Trial court could have, rather should have, considered the income tax record and the finding of the Commissioner/Secretary, Food Supplies & Transport Department. The assessing authority has given a clean chit to the petitioners, so far as the house situate in Trikuta Nagar is concerned. The Income tax authorities have held that the house belonged to the son, petitioner, Rajesh Sharma, who is a separate income tax payer, running his independent lucrative business and has all along shown the house in question in his income tax returns. The assessing authority has made a pointed inquiry and returned a detailed finding with respect to the transaction made by the father, not to be spurious or benami. The Government has also returned petitioner's application for grant of sanction for transfer, after returning a finding. I have also considered both these documents. Once these are taken into account, they tender an umimpeachable explanation to the two charges framed against the petitioners. In my considered opinion the two charges cannot stand before a criminal court, which has to take the findings of the two authorities to be final. Therefore, I am of the view that ends of justice will be served and petitioners will be rescued from being a victim of abuse of process of the Court, if the charge-sheets, alongwith F.I.R. against the petitioners, are quashed."
12. The State went in SLP before the Supreme Court and the Apex Court, vide its order passed in Criminal Appeal Nos. 1263-1264 of 2002 on 19-01-2004, held as under:
"Heard the parties.
In our view no case for interference is made out. Accordingly, the appeals are dismissed."
13. It is, thus, a case in which the trial court's failure to consider the documents, i.e, income tax and wealth tax returns and other assessment orders, besides the orders passed by the Income Tax Department, on scrutiny, has resulted in framing of charges. Had the trial court considered the said documents as per the law laid down by the Apex Court, the petitioners could not have been charged for the allegation of possessing disproportionate assets of their known source of income. A perusal of the documents of Income Tax returns/ assessment orders indicates that the assets which have been included in the assessment of the petitioners are not assets of petitioners, but are the assets of others as is duly proved by the aforesaid documents. Once the assets allegedly to be belonging to petitioners are taken as assets not belonging to them but belong to the persons as reflected in the Income Tax/wealth tax returns and assessment orders, there was hardly anything which could be alleged to be possessed by petitioners as assets or properties disproportionate to their known source of income. Therefore, on the face of these un-assailable documents i.e. the wealth-tax and income- tax returns and the order of scrutiny passed by the Income Tax Authorities, no charge(s) of alleged disproportionate assets can be said to have been prima-facie disclosed against the petitioners. There is, in fact, no evidence against the petitioners except allegations made by the Vigilance Organization of their possessing or owning assets disproportionate to their known source of income. The evidence which answers the said charges is available only in the shape of Income Tax and wealth Tax returns and the assessment orders of the Income Tax Department. That being so, it could not be said that petitioners possessed any assets disproportionate to their known source of income.
14. It is further borne out from the documents placed on record that after the house of the petitioners was subjected to search by Vigilance Organization on 4.12.1996 and certain seizures were made, their case was selected for scrutiny assessment. Notice under Section 143(2) of Income Tax Act on 19.1.1998 was issued alongwith questionnaire, wherein he was confronted with the details of the seizure made in respect of gold ornaments, silver ornaments, cash, investment in properties, investment in immovable assets and also investment in certain business concerns. Letters were also issued during the course of the proceedings by the Income Tax Department to the Commissioner Vigilance, SSP Vigilance for providing complete information in respect of copies of preliminary statement of the accused, seizure memos, challans, details of inventories of gold and silver seized etc. The Vigilance Authorities, however, expressed their inability to provide necessary information. Since the Income Tax Department received information from the Addl. Commissioner of Income Tax, Range, Jammu, the case has been examined strictly in accordance with the information received. The detail of charges and the scope of investment made by the asscssee was discussed. In the scrutiny assessment order, each item was taken and the details of immovable properties were prepared with reference to the determined cost as per the information. Statement of petitioner No. 3 was also recorded in respect of the properties, which stood in her name and also in the names of different individuals of the family in whose ownership the property was at the relevant time. The statement of all the individuals were recorded by the Income Tax Department, as is found in the assessment orders of the Income Tax Department after receiving replies of the assessee in respect of the ownership and the period of assessment of the immovable properties. The information with regard to the properties possessed by Savitri Devi was also gathered during the enquiry and found that she was regularly assessed by the Income Tax Department since 1984 of which she had furnished the proof of filing income tax returns. Savitri Devi, petitioner No. 3, was found filing her income tax returns at Delhi where she was also owning a house at 356-A Meera Bagh, New Delhi and, consequently, returns were filed at New Delhi address. The Income Tax Department further found that Savitri Devi, petitioner No. 3, is a regular assessee and has filed her income tax returns over the years and is also having her own independent source of income. The Income Tax Department further found that Savitri Devi is a distinct taxable entity and after examining the assessment orders termed the assessee's version as correct in this behalf. Similarly, the details of the properties are given by other assessees possessed in their names and in the names of other individuals, who are found by Income Tax Department to be income tax assessees over years having independent sources of income. The assessment orders further reveal that the properties, in respect of which information was given by the assesses, were referred to the valuation Cell in their names and in the names of other individuals of the family members for making proper valuation of investment made in the construction and its out come. After obtaining information with regard to the sources reflected in the income shown in their returns and invested for the purchase of the land in respect of such property, the same was got further verified from the Survey unit. It was found that the property at 180-A Meera Bagh, New Delhi belongs to Sumit Kumar Puri, petitioner No. 2, but is assessed separately by the Income Tax Department. The entire properties movable and immovable and other investments reflected in the charge by the Vigilance Department when examined by the Income Tax Department on the touchstone of the information provided by S.K.Puri, petitioner No. 1, reveal that the same have been purchased by HUF over the years and reflected in the income tax returns. Similar methodology was adopted by the Income Tax Department with regard to other investments, immovable properties, cash, jewellery etc. during the course of the proceedings. After the assessee had given an explanation with regard to the sources for such cash and identified the sources from where such cash has been generated and further with regard to the properties detailed in the scrutiny assessment order with regard to each item, Income Tax Department reached a conclusion that it has been reflected in the income tax returns and further duly explained and identified the sources during the enquiry. The order of scrutiny assessment by the Income Tax Department further shows that S.K. Puri, petitioner No. 1, has shown income from salary, and income from consultancy charges from different concerns after examining the details and getting report from the Income Tax Officer, Pathankot, who recorded the statement of the persons from whom consultancy charges were taken and they have confirmed having issued the consultancy charges paid to Mr. S.K.Puri, assessee.
15. It is further disclosed from the assessment order dated 27.3.2000 that the Assistant Commissioner of Wealth Tax had also examined the sources of acquisition of wealth and also valuation report of jewellery from approved valuer. In the case of Santosh Puri, Amrita Puri and other individuals, the valuation reports were prior to the period of search. In view of the past income tax records, their assessments in wealth tax and also keeping in view that both are married women and must have received items of jewellery etc. as STRIDHAN, their ownership of such jewellery was also confirmed and it was also held that no interference could be made on this account in case of assessee- S.K. Puri, as he has not found to have made any investment in the purchase of jewellery and silver utensils during the said assessment order.
16. After discussing the details of the properties, movable and immovable possessed by petitioner No. 1, his son Sumeet Kumar Puri, petitioner No. 2, and Savitri Devi, petitioner No. 3, his aunt, besides other individuals in thorough details, the Income Tax Department in scrutiny assessment order found that no interference in the income of the assessee is made. The Income Tax Department further found the details given by the assessee in its reply of the drawings in respect of Smt. Amrita Puri, Sh. Sudesh Puri, S.K.Puri, Sh. S.K.Puri, HUF to be adequate. Similarly, in case of Sumit Kumar Puri, petitioner No. 2, the sources of the cash and the properties possessed by the assessee were thoroughly examined after making direct enquiry from the concerned persons and receiving information, who confirmed the details furnished by the assessee and the Income Tax Department thereupon found no further action lies on the issue. The details of the immovable property and other investments by assessee in pursuance of the information provided by petitioner No. 2 were examined and the confirmation from such individuals in the returns for the assessment year 1996-97 furnished by the assessee. The confirmation and explanation offered by the assessee for cash and immovable properties possessed by him was also verified and examined by the Income Tax Department in scrutiny assessment as is delineated in the assessment order under Section 143(3).
17. It is pertinent to point that it is not the mere acquisition of property that constitutes an offence under the provisions of the Act, but it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending the law. On going through the scrutiny assessment order made by the Income Tax Department under Section 143(3), it is indisputably gatherable that the Income Tax Department found on the basis of the confirmation and sources furnished by the assessee that nature and extent of pecuniary resources for the property which was found in his possession, were verified and examined and no case of interference in the income of the assessee is made.
18. That being so, it could not be said that the petitioners possessed any assets disproportionate to their known source of income. In the scrutiny assessment order dated 27.3.2000, Assessing Authority has explicitly described in un-equivocal terms that the properties seized from the house of the assessee during raid and further immovable properties and investments reflected in the charge sheet were thoroughly examined and held to have been sufficiently explained and confirmation furnished and also reflected in the income tax returns were verified and examined and found no case is made out for interference. It is further no where borne out from the aforesaid assessment order of the Assessing Authority that the transaction in respect of the immovable properties was benami and in the names of other individuals. This finding of the Assessing Authority, read with income tax returns and other documents, seems to have washed away the accusation as contained in the charges framed against the petitioners. The Income Tax Authorities have held that the petitioners are accepted assessees and distinct entities and separate assessees having their independent sources of income and rendered sufficient explanation in respect of the properties possessed by them in their own names. The Assessing Authority has also made a pointed inquiry and held with respect to the transaction made by the assessees, not to be spurious or benami.
19. Relying upon the income tax returns and other documents, Mr. P.N. Raina, learned counsel, submitted that detailed findings of the Assessing Authority, Income Tax, Jammu, returned on 27.3.2000 are of great significance. The Assessing Authority has scrutinized item-wise detailed examination of the immovable properties, assets, investments, cash and other properties of the petitioners/assessees and allowed the properties to be belonging to the petitioners individually being a separate assessee and duly reflected in their respective returns and adequately explained the sources of their income. Mr. Raina further pleaded that the only authority which law recognizes to adjudge as to whether or not a transfer is benami, is the Assessing Officer under Section 181 of the Income Tax Act and none else. There is a great weight and substance in the statement made by Mr. Raina, petitioners' Advocate. On going through the aforesaid order, it is clearly unfolded that a conclusion has been reached after roving enquiry and thorough examination of the details of the properties of each assessee.
20. That Apart, the documents, viz. income tax and wealth tax returns and assessment orders of the Income Tax Department placed on record, pertain to the period much earlier to the check period, and that being so it could not have been said that these documents have been prepared in anticipation of the case. These are, therefore, rendered unimpeachable and unassailable, as the learned AAG appearing for the respondents has not challenged the above income tax returns and the assessment order of the Income Tax Department. These documents could not have been manipulated and concocted in anticipating this prosecution in 1997.
21. The Assessing Authority of the Income Tax Department in its scrutiny assessment has stated, after thorough verification in detail, the item-wise property - movable, immovable, cash and jewellery - of the accused, disclosed in their wealth tax returns, which included the property indicated in the seizures by the Vigilance Organization and the details provided by the accused in respect of the sources of their income, and after examining the correctness of the assessees'/accused's reply against the investment, the Assessing Authority of the Income Tax Department reached a conclusion that no interference is made in accepting the explanation offered by the assessee based on the facts and supported by documents and evidence in their assessment order dated 27-03-2000 under Section 143(3) of the Income Tax Act. The assessing authority, thereafter, held that son, Sumit Kumar Gupta, and father, S.K. Pura, and Smt. Savitri Devi, aunt of S.K. Puri, accused, to be separate entities, filed separate returns and assessed separately, both in wealth tax returns and income tax returns. They have described the assesses to have adequately and sufficiently ex-, plained the sources of their income to justify the income and property possessed by them including the one taken as benami by the Vigilance Department. The finding of the Assessing Authority read with income tax and wealth tax returns and other documents washed away all the accusations contained in Paras 1 and 2 against S.K. Puri and Sumit Kumar Gupta and accusation contained in charge against Savitri Devi with regard to the acquisition of the property by accused A-1 and A-2 embraced in their names in a benami manner in order to conceal and avoid detection of the property by the law enforcing agency and escaped from the legal consequences arising under Section 120B RPC. As regards charges under Sections 12 and 14 of the Jammu and Kashmir Public Men and Public Servants Declaration of Assets and Other Provisions of Act, 1983, which are punishable under Section 5 (2) Prevention of Corruption Act, 2006, of having suppressed the information regarding the assessments in their annual property statements and also raised various assets without obtaining permission from the competent authority, it is significant to point out that neither in the accusation in the charge nor elicited from the record of the file that the Vigilance Organization has identified and pointed out the items of the property in respect of which the information has been suppressed in the statements and also the one which has been purchased without obtaining permission from the competent authority.
22. The Apex Court in Satish Mehra's case, referred supra, has held with unerring clarity that the material, which the accused may produce at the stage contemplated in Section 227 of the Code, to be considered is well within the powers of the Sessions Judge. The detailed findings of the Assessing Officer, Income Tax Department, Jammu, returned on 27-03-2000 are of great significance. Mr. Raina, learned counsel appearing for the appellants, vehemently urged that the only authority, which the law recognizes to adjudge as to whether or not assessee possessed a property disproportionate to his known sources or a transferred his benami, is the Assessing Officer under Section 181 of the Income Tax Act and none else. He referred to the assessment order and findings of the Assessing Officer dated 27-03-2000 and submitted that the Vigilance Authority did not even co-operate with the Income Tax Officer during the assessment proceedings to provide the copies of the statements of the accused and the seizure memos besides inventories of diamond, gold and silver seized and instead expressed their inability to make available the requisite information. But, however, the Assessing Authority verified each item of movable and immovable property, jewellery and the cash, besides investment made by the accused/assessees and the sources of income disclosed after receiving their replies and the statements made before the Vigilance Organization including property alleged to have been purchased in the benami transaction in the name of Savitri Devi, returned a finding that the accused are regularly filing the income tax and wealth tax returns and are being regularly assessed over the years separately and having their independent sources of income. The finding of the Assessing Authority of the Income Tax Department dated 27-03-2000 under Section 143(3) of the Income Tax Act runs into 21 pages dealing with each item of the property both inside and outside the State and having been produced by the accused to form a part of the record. The accused, therefore, having satisfactorily accounted for the possession of the movable and immovable property, cash and jewellery reflected in the seizures by the Vigilance Organization at the time of raid, besides the other properties and investments, inevitably demolished accusation against the accused bolstered up by the prosecution in the charge framed by the Trial Court of Special Judge, Anti-Corruption, like pack of cards. The Assessing Authority in its order dated 27-03-2000 after item-wise verification during assessment proceedings came to the following conclusions:
"In view of the above discussion, and evidence put-forth by the assessee it is seen that the availability of cash found in the residential premises of Shri S.K. Puri is properly examined with reference to its ownership and sources. Independent confirmations in this regard have been made as discussed above."
"In view of above, it is seen that Smt. Santosh Puri and Amrita Puri have disclosed such jewellery in their respective wealth tax returns. In view of the above facts, no action in this regard is called for in the case of Shri S.K. Puri."
23. As regards the collective investment alleged to have been made by S.K. Puri and his family members, though Vigilance Department despite request to provide details expressed inability to make available information, the Assessing Authority after verification from different sources and obtaining the reply-cum-explanation from the assessee reached the following conclusion:
"The assessee has furnished details each such investments and it is examined that such investments made over the years for claiming deduction Under Section 88 out of his salary incomes, as such no further probe is required."
24. The Income Tax Officer in his assessment order dated 27-03-2000 under Section 143(3) of the Income Tax Act, indicated in unambiguous terms that he examined in detail each one of the items said to be unaccounted and suppressed on the basis of the income tax returns, which have been placed on record, and clearly explained all the items as also the entries pertaining to the cash jewellery etc. seized during raid from the houses of the accused and other assets show that there is nothing to indicate that the accused were possessed of the assets disproportionate to their sources or purchased property in benami transaction in the name of Smt. Savitri, Accused No. 3, aunt of S.K. Puri.
25. After taking conspectus of the facts and circumstances of the case and the case law discussed hereinabove, it is indisputably gatherable that the Trial Court should have discussed the Income Tax Record and finding of the Assessing Authority of the Income Tax Department with regard to the items of assets and the cash and jewellery seized during raid being unaccounted and suppressed, to have been duly explained and reflected in their respective wealth tax and income tax returns. The Assessing Authority has recorded a finding in the assessment orders of the accused separately that the assets possessed by the accused having been sufficiently and adequately explained, warrants no interference. It is also held by the Assessing Authority that the accused are separate assessees having independent sources of income with which they have purchased assets possessed by them. On going through the assessment orders in scrutiny assessment and other documents on record, the inevitable conclusion, in my view, reached is that there is no material at all on the basis of which it could be said that there is a prima facie case against the accused and the charges framed thereon on them are groundless and they would, therefore, in any event, be entitled to be discharged. To prevent the abuse of process of the Court and serve the ends of justice, it is necessary and expedient that the charge sheets along with FIR against the accused be quashed.
26. On the face of the totality of the above circumstances and the accumulative effect thereof, the petition is allowed and the order dated 23-08-1999 passed by the Special Judge, Anti-Corruption, Jammu, framing different charges, as indicated above, against the accused along with FIR No. 42/96 of Police Station, Vigilance Organization, registered against them, are quashed and the accused/petitioners would be entitled to the release of the articles seized during raid and reflected in seizure memos in resultant thereof. The petitioners shall stand discharged as a necessary consequence.