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(j) Attention of the Bench was drawn to the statement of Shri Chandak recorded under Section 306 of Cr.PC before the Trial Court wherein he has given detailed account of share of booty amongst the various co-conspirators and expenditure incurred on gratification, etc. Out of the total fraudulent receipts, 80 per cent was distributed directly to Dr. SB Sinha and on his instructions to various other AHD officials named in the statement. Further, out of assessee's own share of booty of 20 per cent, 4 per cent was paid to the lower grade office staff of AHD. Further, 4 to 5 per cent was spent on various statutory taxes, office maintenance and settling of bills, etc. In addition to the above, further substantial amount has been spent on gratification to several high officials of AHD, such as, on their tours, travels, lodging and boarding, shopping, etc. over a period of ten years. After incurring all such expenses out of assessee's own share of 20 per cent, the assessee was left with a sum approx. of Rs. 1.34 crores in cash, which was ultimately seized by the CBI on the basis of revelation made by him. Therefore, nothing remains left with the assessee out of his booty of 20 per cent.

(k) The learned Counsel distinguished the case laws/decisions relied upon by the learned senior standing counsel of the Department. According to him, the moot question which requires to be considered in the case of the assessee has neither been considered nor examined in those cases referred to by the Department. In those cases, the assessees had not been accepted as approvers and neither they have made any statement before any inquiry committee or Court of law giving details of gamut of the scam and the ultimate destination of the defrauded sum. Here in the case of the assessee, his statement was found absolutely gainful to the Department as evidence in the trial. Doubt has not been expressed by any authority about the authenticity and truthfulness of the statement recorded under Section 306 of Cr.PC. This truthful statement of the assessee has been made the basis for the trial of case and consequent conviction. Therefore, the scenario of the cases relied upon by the Department is altogether different to the actual state of affairs of the assessee's case.

(d) The aforesaid scam resulting in fraudulent withdrawal has thus been discovered and legal action initiated for recovery of the fraudulent sum.

(e) The appellant, the recipient of the aforesaid fraudulent sum, along with AHD officials and the politicians, has turned approver, admitted of such fraud and the CBI, on revelation by the assessee has recovered from his possession the remaining defrauded amount to the extent available with him.

(f) His statement accepting such fraud in this act of fraudulent withdrawal has been accepted as true under Section 306 of Cr.PC by the designated CBI Court and on the truthfulness of his statement, he has been granted pardon from criminal prosecution. The Hon'ble Supreme Court of India in its order dt. 17th Sept., 2004 has acknowledged this fact and has stayed prosecution initiated against the appellant by the Department allegedly for making false statement in the original return filed.

(1) That according to the statement of the assessee recorded under Section 306 of Cr.PC and in his examination-in-chief before the various Trial Courts detailing distribution of share of defrauded money amongst the conspirators and consequential expenditure incurred during the span of 10 years, which was duly accepted as true, the assessee handed over 80 per cent of the total defrauded sum to Dr. SB Sinha and on his instructions to various other AHD officials named in the statement.

(m) That further, out of assessee's own share of remaining 20 per cent of the defrauded sum, 4 per cent was paid to the lower grade office staff of AHD, 4 to 5 per cent was spent on various statutory taxes, office maintenance and settling of bills, etc. In addition to the above, further substantial amount has been spent on gratification to several high officials of AHD, such as, on their tours, travels, lodging and boarding, shopping, etc. over a period of ten years. After incurring all such expenses out of assessee's own share of 20 per cent, the assessee was left with a sum approx. of Rs. 1.34 crores in cash, which was ultimately seized by the CBI on the basis of revelation made by him.