ORDER
A. Pasayat, J.
1. Alleging commission of criminal misconduct as set out in Section 13 of Prevention of Corruption Act, 1988 (in short, the ‘Act’), prosecution has sought for action against Shri Bharat Chandra Roul, (hereinafter: referred to as the ‘accused’), a public servant. It is alleged that he is guilty of offence punishable under Section 13(2) of the Act read with Section 8(3), of the Orissa Special Courts Act, 1990 (in short, the ‘Special Act’).
2. Section 13, deals with various situations when a public servant can be said to have committed criminal misconduct. Clause (c) of Sub-section (1) of the section is pressed into service against the accused. The same is applicable when the public servant or any person on his behalf, is in possession or has, at any stime during the period of his office, been in possession for which the public servant cannot satisfactorily account of pecuniary resources or property disproportionate to his known sources of income. Clause (e) of Sub-section (1), of Section 5, of the Prevention of Corruption Act, 1939 (referred to as ‘Old Act’). But there has been drastical amendments. Under the new clause, the earlier concept of “known sources of income” has undergone a radical change. As per the explanation appended, the prosecution is relieved of the burden of investigating into “source of income” of an accused to a large extent, as it is stated in the explanation that “known sources of income” mean income received from any lawful sources, the receipt of which has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. The expression “known source of income” has reference to sources known to the prosecution after thorough investigation of the case. It is not, and cannot be contended that “known sources of income’ means sources known to the accused. The prosecution cannot, in the very nature of things be expected to know the affairs of an accused person. Those will be matters “specially within the knowledge” of the accused, within the meaning of Section 106, of the Indian Evidence Act, 1872 (in short, the ‘Evidence Act’).
3. The phrase “known sources of income” in Section 13(1)(e) (old Section 5(1) (e)) has clearly the emphasis on the word “income.” It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term “income” by itself, is classic and has a wide connotation. Whatever comes in or is received, is income. But, however, wide the import and connotation of the term “income”, it is incapable of being understood as meaning receipt having a nexus to one’s labour, or expertise, or property, or investment, and being further a source which may or many not yield a regular revenue. These essential characteristics are vital in understanding the term “Income”. Therefore, it can be said that, though “income” in receipt in the hand of its recipient, every receipt would not partake into the character of income. Due the public servant, whatever return he gets of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant, will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime or immoral secretions by parsons prima facie would not be receipt for the “known sources of income” of a public servant.
4. The legislature has advisedly used the expression “satisfactorily account.” The emphasis must be on the word “satisfactorily” and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealths, but also to satisfy the Court that his explanation was worthy of acceptance.
5. Corruption is one of the most talked about subjects to-day in the country since it is believed to have penetrated into every sphere of activity. What distinguishes India from other societies in variety and degree of corruption afflicting its society has been scintillatingly described by James Cameron, an eminent Journalist in the following words :
“In India, corruption, public or private, vanality is sanctified by the oldest traditions, it is denied by nobody indeed, the totality and pervasiveness of Indian corruption is almost a matter of national pride.”
It is described as wholly widespread and spectacular.
6. Bribery and graft by public officers is one of the important crimes which have been characterised as white collar crimes. The rise of such crimes in many countries has coincided with the progress made in those countries in the economic and industrial fields. It is hardly surprising that the two processes should go together considering that most of the white-collar crimes are, directly or indirectly, connected with the production and distribution of wealth. In a welfare State, the Government tends to control a vast number of means of production and distribution of goods and material services. The Constitution of India provides that the State shall in particular direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. During the last several decades the country has seen the execution of various five-years plans involving huge expenditure by the Government for various nation-building activities. The corrupt officers, businessmen and contractors never had it so good. No doubt the country did make some progress, but a big chunck of money earmarked for developmental projects has been pocketed by the white-collar criminals.
7. The enactment of the Prevention of Corruption Act, 1947 coincided with the inset of the country’s independence. Corruption as such has reached dangerous heights and dangerous potentialities. The word ‘corruption’ has wide connotation and embraces almost all the spheres of our day to day life the world over. In a limited sense it connotes allowing decisions and actions of a person to be influenced not by rights or wrongs of a cause, but by the prospects of monetary gains or other selfish considerations. Avarice is a common freilty of mankind, and while Robert Walpole’s observation that every man has a price, may be a little generalised, yet it cannot be gainsaid that it is not far from truth. Burke cautioned “Among a people generally corrupt, liberty cannot last long.”
8. Though the prosecution originally claimed that the difference of income explained by the accused, and the expenses made and assets acquired was Rs. 8,03,395/-, during the course of trial it was accepted that the correct figure is Rs. 7,51,395/-, as the provident fund withdrawal of Rs. 52,000/- received by the accused was not taken note of.
9. So far as the income of the accused is concerned, according to the prosecution, the same Rs. 6,09,537/-, whereas the accused claimed it to be Rs. 10,49,406/-. There is no dispute as regards loan from O.P.P. amounting to Rs. 1,50,850/-, and advances for purchase of motor car amounting to Rs. 21,000/ – so far as the other sources of income are concerned, there is a gulf of difference between the amount indicated by the prosecution and as claimed by the accused. I shall deal with these separately.
(1) Advance for sale of land as claimed by the
accused -- Rs. 15,000/-
10. The accused claimed that a sum of Rs. 15,000/- was received as advance from Jagannath Rout (D.W.4). The witness claimed that he was a bhag tenant in respect of agricultural land situated at village Bahira, and wanted to purchase the said land. He claimed that an agreement was executed on 21-3-1990 for payment of Rs. 30,000/-, as consideration out of which he had paid Rs. 15,000/- on 21-3-1990. Since he could not arrange the balance, an agreement for cancellation of the earlier agreement was executed. According to the accused, this witness was cultivating the land of Smt. Manorama Bahesta (D.W.20), wife of the accused. He had his income as a bhag tenant and from the savings he had advanced Rs. 15,000/- on 21-3-1990. Evidence of this witness is very interesting. He has stated that the agreement was executed two years prior to the visit of the Investigating Officer. He has stated that the I. O. had gone for Investigation in 1990, but he was not aware of the month. Obviously, therefore, the agreement would have been of the year 1986. But the case of the accused is that it is of the year 1990, precisely of 21-3-1990.
P.W. 20 has stated that the agreement was registered. The agreement of cancellation which is marked Ext. P is purported to have been executed on 12-4-1992. She has stated to be unaware as to who had purchased the papers for the agreement and has also stated that D.W. 4 came to her few days prior to the raid and never thereafter. The raid was conducted on 24-3 1990. If the statement of D.W. 20 is to be believed, then the agreement of cancellation could not have been executed on 12-4-1992 as claimed. According to D.W. 4, Ext, F came into existence 15 to 20 days prior to the visit of the Investigating Officer (D.W. 26). This shows the falsity of the plea. D.W. 4 says that the agreement of 1990 was not registered, but Manorama (D.W. 20) says it to be a registered one. Ext. 5 is clearly a got up document. A mere statement that he (D.W.4) had advanced Rs. 15,000/- without indicating the source from which he received the money is also not sufficient. In view of unsatisfactory nature of evidence adduced, statement regarding advancement of Rs. 15,000/- as made by D.W. 4 is clearly unacceptable. The accused has failed to prove receipt of the amount.
(2)SALARY :
Prosecution -- Rs. 3,55,262/- Accused -- Rs. 3,58,894/-
11. Though the accused does not dispute that the receipt from salary for the period from 12-6-1963 to 24-3-1990 was Rs. 3,55,262/-, it is stated that there was considerable savings from the dearness allowance received by the accused on various occasions. It is also stated that salary received by accused from 26-8-1962 to 11-6-1963 has been excluded. It is stated that though the travelling allowance received is spent wholly for the purpose of travel, the dear-ness allowance is not spent and there is considerable savings and therefore, the savings were available for the accused. Reliance is placed on two decisions of this Court reported in Hemanta Kumar Mohanty v. State of Orissa, 1973 Cut LR (Cri) 126; and Akulanada Dehuri v. State of Orissa, 1973 Cut LR (Cri) 441. It is stated that the dearness allowance received is Rs. 8,779/-, and by taking approximately 19% of the dearness allowance the saving comes to Rs. 2264/-. As observed by the apex Court in C.S.D. Swami v. State, and Sajjan Singh v. State of Punjab, dearness allowance per se is not income, any saving therefrom would be merely incidental.
In C.S.D. Swami’s case (supra), the apex Court considered the question whether the prosecution would be justified in concluding that travelling allowance was a source of income. Following observation of the apex Court is relevant:
“…The prosecution would not be justified in concluding that travelling allowance was also a source of income when such allowance is ordinarily meant to compensate an officer concerned for his out-of-pocket expenses incidental to journeys performed by him for his official tours. That could not possibly be alleged to be a very substantial source of income….”
The accused had pleaded in that case that the prosecution should not have left out travelling allowance as a source of income. Similarly in Sajjan Singh’s case (supra) it was observed that one cannot also forget that much of what is received as travelling allowance has to be spent by the officer concerned in travelling expenses itself. For many officers it is not unlikely that travelling allowance would fall short of these expenses and they would have to meet the deficit from their own pocket. It is stated that the dearness allowance has been paid in addition to the travelling allowance. With reference to Ext. V it is stated that the accused is entitled to get credit of the savings from dearness allowance. As observed by the apex Court in C. S. P. Swami’s case (supra) saving if any would be absolutely minimal and in any event it cannot be treated as income disclosed by the accused at any point of time. The accused has to show that there was saving. A mere claim without anything to substantiate it would not be sufficient. However, the salary for the period from 16-8-1962 to 11-6-1963 has to be considered. Taking note of the corresponding expenditures, which as conceded by learned counsel for the accused would be around, the net amount of Rs. 1,852/- (Rs. 2,452/- Rs. 600/-), is added. In other words, income of the accused from salary is Rs. 3,57,114/-.
(3) LOAN FROM PARIKHITA (sic) (D.W. 7) AS
CLAIMED BY THE ACCUSED –
Rs. 20,000/-
12. It is claimed that on the occasion of marriage of Swati, first daughter of the accused, a second hand car was given and for the said purpose a loan of Rs. 20,000/- was taken from Manorama (D.W. 20)’s brother. Reliance is placed on the evidence of Farikhica (D.W. 7), Rocmanath Mahanta (D.W. 15), and Manorama (D.W. 20). In the property statement of the eldest son-in-law Shri Ganeswar Pradhan (Ext. 43), there is a mention that he had received a second hand car at the time of his marriage cost of which was Rs. 54,000/- Interestingly D.W. 7 has initially stated that he had advanced the money as loan, but later on he changed his version and stated that the money belong to his wife and he had only handed over the money. The wife of D.W. 7 has not bean examined, though it is stated by D.W. 7 that she is alive and is hule and hearty. Source from which she could have given the amount has also not been indicated. There is absolutely no material to show that she had the capacity to advance the loan. A mere statement that another person had advanced the money as loan would not be sufficient, unless source thereof is satisfactorily explained. Onus lay on the accused to show that the money had been given as loan by a person who had capacity to give it. As observed by the apex Court in Sreelatha Banerjee v. Commr. of Income-tax Bihar and Orissa, version of a man of straw, posing to be a man of means that he had advanced the loan or had given credit would not be sufficient, unless the source of it is satisfactorily explained. That having not been done, the plea that a sum of Rs. 20,000/- was received from D.W. 7 as loan is not acceptable. It is to be noted here that under Section 269 of the Income-tax Act, 1961, if a person received cash of Rs. 10,000/- or more after 30-6-1984 it is an offence.
(4) INCOME FROM HOUSE PROPERTY SITUATED AT APARNA NAGAR, CHAULIAGANJ IN THE NAME OF SMT. MANORAMA ROUL. SOURCE OF INVESTMENT AND CLAIM RELATING TO RECEIPT OF RS. 40,000/- AFTER DEATH OF JAGANNATH MAHANTA THE ADOPTIVE FATHER OF MANORAMA.
13. Since the building standing in the name of Manorama, wife of the accused are claimed to have been constructed by late Jaganath Mahanta, and transferred in her favour by a deed (Ext. 50), and Manorama’s claim that after her father’s death out of cash of Rs. 73,000/- found in the almirah she got Rs. 40,000/- and gold ornaments weighing five tolas which were also found, these aspects are taken up together for consideration. It is the claim of accused that the investments were made by Jagananath Mahanta. There is no dispute that two buildings standing in the name of Smt. Manorama Roul are situated at Aparna Nagar, Chauliaganj. According to the prosecution, the houses stand on plot Nos. 164 and 165, whereas according to the defence, they stand on plot No. 164. I shall deal with this aspect later on. For the present, I shall deal with construction of the building, and the alleged receipt of Rs. 40,000/- by Manorama.
14. With reference to Ext. 50, it is stated that on 4-12-1981, by an unregistered deed all the immovable properties of Jagannath Mahanta were divided between Woomanath Mahant (D.W. 15) and Manorama (D.W.20). Cost of the land and the building at Aparna Nagar was estimated to be Rupees 60,000/- and they were given to Manorama, while the agricultural lands at Manupur was estimated at Rs. 25,000/- and the house at Manupur was valued at Rs. 35,000/- At the outset, it is to be indicated that though the counsel for the accused conceded that the document needed registration. It was stated that in view of evidence of D.W. 15 and 20 to the effect that there was never any praction of registering documents in the family of Jagananath, the documents was not registered. Further it was stated that since Manorama and Woomanath did not show any interest to register the document, no step for registration was taken. Additionally, Jagannath Mahanta died few months after the execution of the deed for which there could be no registration. The document (Ext. 50) presents some interesting features. It is a tripartite agreement among the adoptive father Jagannath Woomanath and Manorama. At one place it is stated that father Jagannath “relinquished his share” in the ancestral property. Section 17(1)(b) of the Indian Registration Act, 1908, provides for family arrangement. If such arrangement (family arrangement) was in fact reduced to the form of a document for the purpose of recording the arrangement, registration (when the value is Rs. 100/- or upwards) is necessary by Section 17, of the said Act, and the absence of registration makes the document inadmissible in evidence under Section 49, of the Registration Act in proof of the arrangement, and under Section 91, of the Evidence Act, no other proof thereof can be given.
15. In Sahu Madho Das v. Mukand Ram AIR 1955 SC 481, (a Three-Judge decision of the apex Court), in paragraph 54 it was observed that it is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is; each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. The arrangement or compromise would set out and define that the title claimed by ‘A’ to all the properties in dispute was his absolute title as claimed and asserted by him and that it had always resided in him. Next, it would affect a transfer by ‘A’ to ‘B’, ‘C and ‘D’ (the other to the arrangement) of properties ‘X’, ‘Y’ and Z, and thereafter ‘B’, ‘C and ‘D’ would hold their respective title under the title derived from ‘A’. But in that event, the formalities of law about the passing of title by transfer would have to be observed and now on the further registration or 12 years adverse possession would be necessary. When family arrangement is reduced into writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that document requires registration because it is then that it would amount to a document of title declaring for future what rights and in what properties the parties possess. (See Tak Bahadur Bhujil v. Debi Singh Bhujil, : a decision rendered by four Hon’ble Judges.
16. The plea that there was never any tradition or custom of getting any document registered is hardly a legal submission. When there was need for registration of the document, the plea of custom or tradition is irrelevant. Further Manorama has stated that there was no discussion about registration, and the plea that Jagannath Mahanta suddenly died is also not correct. It is in any event inconsequential because the Registration Act itself provides for registration by the registering authority at the, residence of the proposed executant in terms of Section 31 of the said Act. Additionally Jagannath did not die immediately as claimed. He died more than two months after the alleged date of execution of Ext. 50 D.W. 20 in her evidence has stated that the counter-foils of the receipt book for rent which were being received by Jagannath were handed over to her 15 to 20 days after execution of Ext. 50. Though D.Ws 15 and 20 have accepted that the papers on which Ext. 50 has been typed out were purchased by Jagannath, his signature on the reverse of the first page where the purchaser is required to sign is not there. Signatures of Jagannath. Woomanath and Manorama and the witnesses do not appear on each page of the document and only in the last page their signatures are there. No date has also been given and the address of the witnesses is not there. Additionally the electric connection was given as evident from Ext. 38 from 24-4-1980, and the application for allotment of holding was made on 12-3-1980 much prior to 4-12-1981. If as claimed for the first time Manorama became the owner after execution of Ext. 50, no explanation has been offered as to how she could apply for electric supply, and allotment of holding to the Orissa State Electricity Board and the municipal authorities respectively. At this juncture it is also relevant to note that the accused had filed an application for permission for transfer of land of mouza Sahira in of favour of his wife. It is stated by Manorama that she did not agree to the transfer when the permission was originally granted by Ext. 68. Interestingly in Ext. 74, the property statement filed in the year 1984, there is no mention about the transfer of house in favour of Manorama. Another interesting feature is that neither Manorama nor Woomanath, threw any light as to the period of construction or the source from which Jagannath made the investment. Only in the note of submission filed at page 92 it has been stated that the constructions was completed by 1979. A plea was taken that he was a big businessman and was carrying on business on a large scale, and had shops at different places. Woomanath (D.W. 15) accepted that there was no record to show that Jagannath was either paying sales tax or income-tax. It is, therefore, shrouded in mystery as to how and from what source investment as claimed was made. Mere statement that Jagannath constructed the buildings would not be sufficient, when the accused is repaired to substantiate it.
17. There being no material to show that the investment was made by Jagannath Mahanta, the burden which lay on the accused to show that it was in fact Jagannath who did it, and the source of Jagannath to do it, has not been proved. As has been observed by the apex Court in Sreelekha Banerjee’s case (supra) once a plea is taken that a person has advanced any amount, it is to be seen whether that person has the capacity to do so. Mere statement in that regard in a case of this nature is not acceptable.
18. So far as the question of acceptable source of investment in a case of present nature is concerned, the onus is on the accused, because he has special knowledge about how a particular asset was acquired or an investment therein was made. The onus is at least similar to that as is expressed under Section 68 of the Income-tax Act, 1961. The said Section reads as follows:
“68. Cash credits. Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Income-tax Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year.”
As the apex Court observed in Kale Khan Mohammed Hanif v. CIT; (1963) 50 ITR 1, the onus is on the assessee to explain the nature and source of cash credits, whether they stand in the assessee’s account, or in the account of a third party. The question of burden of proof cannot be made to depend exclusively upon the fact of a credit entry in the name of the assessee, or in the name of a third party. In either case, the burden lies upon the assessee to explain the credit entry. It was observed in Sreelekha Banerjee’s case (supra) that the assessee has a legal obligation to explain the nature and source of such credit. It is necessary for the accused to prove prima facie transaction which results in a cash credit in the books of account of the assessee. Such proof includes proof of the identity of the person who according to the accused provided the source, capacity of such person to advance or spend the money, and lastly, the genuineness of the transaction. These things must be proved prima facie by the accused and only after the accused has adduced evidence to establish prima facie the aforesaid, the prosecution has to establish as to how the stand of the accused is not acceptable. Merely establishing the identity of the person is not enough, and his mere filing of confirmatory letters does not discharge the onus that lies on him.
19. If the explanation given by the accused is unconvincing and is one which deserves to be rejected, same can be rejected and it is open to draw an inference that the amount represents receipt either from the sources already disclosed by the accused, or from some undisclosed source. A question arose as to whether a voluntary disclosure under Section 24 (2) of the Finance (No. 2) Act, 1965, had to relate to income actually earned by the declarant. That section granted immunity to the declarant alone and not to other persons to whom the income really belonged. It was observed by the apex Court in Jamnaprasad Kanhaiyyalal v. CIT that the legal fiction created by Section 24 (3) of the aforesaid Act, whereby the declared amount was treated as total income of the declarant, was limited in its scope and could not be involved in assessment proceedings relating to any person other than the declarant so as to rule out the application of Section 60 of the 1961 Act. The position, therefore, is clear that even if a return of income is filed by the same person claiming an income of his or her, that is of no consequence while considering the question as to who was the real owner of the money. It is alleged by the learned counsel for the accused that Ext. 50 can be used for a collateral purpose, and it shows as to how Manorama came to possess the buildings. In view of total absence of material to show that Jagannath made investment in the buildings, the investment has to be taken to have been made by the accused. It is not in dispute that declaration of assets has to be made by a Government servant in terms of Rule 21 of the Orissa Government Servants’ Conduct Rules, 1959. It is conceded that only two property statements were filed (Exts. 73 and 74 filed on 20-5-1967 and. 12-11-1984 respectively). In the latter, there is no mention of alleged acquisition by Manorama in terms of Ext. 50. In the application dated 5-8-1976 (Form I) on the basis of which permission (Ext.68) was granted, there is a significant statement made by the accused while mentioning the purpose of acquisition/disposal. It reads “establishment full ownership and further construction of house”. This falsifies the accused’s stand that investment was made by Jagannath.
20. So far as the cost of construction of the buildings is concerned, it is to be noticed that according to the prosecution the ground floor of the building was constructed during the period 1974 to 1977 and reliance is placed on the plan submitted by Jagannath Mahanta (Ext. 18). Similarly it was originally considered that the first and second floors were also constructed during the period 1974-77. Subsequently the prosecution, however, claimed that the first and second floors were constructed during the periods from 1982 to 1985, and for coming to this view reliance was placed on Exts. 15, 68 and 74.
21. So far as the second building is concerned, there was no permission to construct the same, and relying on Exts.47, 48 and 49 (the purchase of land-deeds) it was claimed that the construction started after execution of the aforesaid deeds. With reference to Ext. 45 where in respect of the ground floor it is mentioned under completion for finishing, it is stated that the building was in finishing stage. According to the accused, the period of construction was between 1974 to 1980. It is not disputed by the accused that certain sanitary articles were purchased vide Exts. 57, 58 and 59, while the prosecution states that the second building was in its finishing and completion stage because sanitary fittings were not fully completed, the period of construction is between 1986 to 1989, the accused takes the stand that the investment made by him is Rs. 56,607/-. With reference to Ext. 129, the building plan, it is stated that the construction was over on plot No. 164 and the G.P.F. loan of Rs. 50,000/- was taken on 5-2-1988 vide Ext. 125 remodelling the house. The original application made for grant of GPF loan would have thrown substantial light on the question of the purpose for which it was taken. Undisputedly, and, strangely the accused had taken away the same from official records. The unchallenged statement of P.W.26 in this regard amply demonstrates that the accused intended truth to be remained unveiled.
It is stated that the cost of structure of the second floor was Rs. 17,161/-, and the rear side of the second floor was Rs. 23,916/-. Exts. 57 to 59 are for a value of Rs. 19,485.15. The sanitary portion, if adjusted from the total cost of the structure on the second floor and the rear side of the second floor would be Rs. 37,121/- by taking out the sanitary cost at Rs. 3,956/-. In other words, it is conceded by the accused that a sum of Rs. 56,607/- was spent by the accused between the period from 1986 to 1989. Considering the rival submission, I take the valuation of the two buildings as follows. The period of construction for the first building is taken to be between 1974 and 1977. The approved area as per plan is 800 sq.ft. though the actual construction was over 1500 sq. ft. From the report of valuation, the costs as per Ext. 90 are as follows:
Cost of ground floor construction -- Rs. 45,084/-
Cost of first floor construction -- Rs. 35,702/-
Cost of second floor construction -- Rs. 7,096/-
By adding the cost of compound
wall, grill the cost is -- Rs. 6,471/-
Cost of the Building -- Rs. 94,353/-
Electric installation charges in the
ground floor -- Rs. 5,636/-
--do-- in the first floor -- Rs. 4,463/-
--do-- in the second floor -- Rs. 887/-
Rs. 10,986/-
So far as water supply and sanitary installation are
concerned, the costs are as follows :
Against the ground floor -- Rs. 9,636/-
Against the first floor -- Rs. 9,463/-
Against the second floor -- Rs. 887/-
Total is worked out at -- Rs. 19,986/-
Therefore, the cost of construction of the first building including electric installation, water supply and sanitary installation comes to ... Rs. 1,25,225/-
So far as the second building is concerned there is no approved plan, but the constructed area is over 1160 sq.ft. It is to be noted that according to the prosecution, the first floor and the second floor were constructed during the period from 1982 to 1985. By taking the period of construction to be 1986 to 1989, the valuation has been made at Rs. 2,19,842/-. The prosecution has valued the two buildings at Rs. 3,87,340/-, after deducting 121/2% for personal supervision. But it is certain that two buildings were not constructed simultaneously. That is also conceded by the accused. If the first building was constructed between 1974 and 1977, obviously the second building has been constructed thereafter. According to the accused, both the buildings were completed by 1980. As evident from Ext.65, for holding No. 1005-9 remittance of holding tax from the 4th quarter, 1979-80 was there, and the tax paid was Rs. 202/- and the same was paid by Smt. Manorama Mahanta.
22. A great detailed argument was advanced as to whether both the buildings stand on plot nos. 164 and 165. It is stated that the buildings stand only on plot No. 164. It is to be noted that holding number was allotted by the time Ext.50 was executed, and the same is evident from Ext.120. With reference to the Exts.47, 48 and 49, sketch map it is highlighted by the accused that there was exchange of plot and no portion of the buildings stand on plot No. 165. With reference to sketch map Ext. V it is submitted by the learned Spl. P.P. that the sketch map was wrong and if the boundary given in respect of the land under different deeds, Exts. 47,48 and 49 is taken into considerations, it is clear that the buildings stand on plot Nos. 164 and 165. With reference to the evidence of P. W. 14 it is stated that there was exchange of land for better facility. That being the explanation, the plea of the accused that there was no construction on plot No. 165 does not seem to be reasonable. By a reading of Exts. 4, 48 and 49, it is clear that plot No. 164 is close to plot No. 165 on a straight line. The boundary as given in Ext.4, even if at variance with the sketch map as appended has to prevail. Evidence of P.W.14 shows that there was transfer of land for better facilitation of enjoyment. The Exts. 47, 48 and 49 relating to transfer of land in plot No. 165 were executed after 1986. Therefore, the period of construction of the second building has been rightly taken to be between 1986-89. A sketch map has been filed by the prosecution to show as to how plea of existence of buildings over plot No. 165 is correct. On comparison of the boundaries as given in Exts. 4, 47, 48 and 49 with the sketch map submitted by the prosecution for better appreciation, it is clear that the sketch map appended to Ext. 4 has to give way. The plea of accused that no building stands over plot No. 165 is also to be rejected in view of the statement of the accused under Section 313 Cr. PC. Question No. 18 related to buildings over plot nos. 164 and 165. The accused did not state that there is no building over plot No. 165. The effect of a statement under Section 313. Cr. PC and to what extent it can be utilised against an accused has been elaborated by the apex Court in State of Maharashtra v. Sukhdeo Singh 1992 SCC (Cri.) 705 : 1992 Cri LJ 3454. The conclusion is inevitable that one building stands on plot No. 165.
So far as the period of construction is concerned, no difficulty would have arisen, had there been an approved plan. The constructions have been made without any approved plan. Since Exts. 4, 47, 48 and 49 have been executed after 1986, the prosecution’s stand that the construction commenced after 1986 is plausible. Added to that Exts. 57 to 59 show purchased of sanitary materials in 1989. There are several other materials which can be taken note of. Statement of P.W.23, and valuation reports Exts. 89 and 90 show that the building under consideration was not a complete one and doors, shutters were to be affixed, and painting was to be done. Further at page 4 of Ext. 45, the seizure list there is mention about state of the building. Therefore, the valuation of the second building by taking its period of construction to be between 1986-89 at Rs. 7,19,842/- is accepted. In other words, the cost of the buildings at chamliaganj, over plot nos. 164 and 165 is taken at Rs. 3,45,067/-. After giving due margin for personal supervision etc, the value on round figures is taken at Rs. 3,35,000/-. There are certain other features which throw grave doubt on the authenticity of Ext. 50. In Exts. 68 and 70, reference is made to building over plot No. 164. The cost of construction over 800 sq. ft. plinth approximately 2″ below plinth level is shown to be Rs. 5,000/-. This is ridiculously low. So far as purchase of the land in plot No. 164 allegedly by Jagannath Mahanta is concerned, it is seen that the document produced by accused (Ext.8) is full of mystery. Purchaser is shown to be Jagannath Mohanty, and not Jagannath Mahanta. Originally Mahanta was written, but subsequently in the deed by way of correction Mohanty was written. The caste of the purchaser is shown to be Karan, when, as accepted by Manorama (D.W.20), Jagannath belonged to Khandayat caste. Further in Ext. 74, though accused stated about land standing in name of Manorama in village Sahira, did not breath a word about property at Chauliaganj. It is relevant to mention that in details relating to immovable properties, it is stated that there was bank balance and Post Office Savings of Rs. 40,000/- by wife (meaning Manorama) representing “share of ancestral property (82-83)”, and ornaments gold worth Rs. 7,000/ – being “share of ancestral property 82-83”. These relate to claim of Rs. 40,000/- out of Rs. 73,000/- and gold ornaments allegedly found in the almirah of Jagannath after his death. I shall deal with these items separately. But the fact remains that there is mention regarding Chauliaganj property. The plea that on account of ill-health registration could not be done, apart from the reason indicated above, has otherwise no substance. According to D.W.15 and 20 Jagannath had already prepared the document before their reaching and they only put the signature. Further after 15 to 20 days of execution he was fit enough to hand over old receipt books, as has been stated by D.W.20. There can be no manner of doubt that Ext. 50 is not genuine and accused had spent money for construction of the two buildings in entirety and not a portion as claimed.
23. Additionally a sum of Rs. 40,000/- is claimed to have been received by Manorama (D.W.20) out of Rs. 73,000/- claimed to have been found in the almirah after death of Jagannath. Sources of such large saving by Jagannath are shrouded in mystery. A mere statement of Dws. 15 and 20 that cash of Rs. 73,000/- was found in the almirah, cannot be accepted. D.W.15 has stated that he had filed an estate duty return. He did not produce a copy of the order or the order of assessment of estate duty. No explanation whatsoever has been offered as to why that was not done. Further, what were the contents of the return were not stated by Woomanath on the ground that he had taken assistance of the Lecturer of Salipur College to fill up the return, and therefore, was not aware of the contents. He also expressed his inability to say whether there was any reference to property covered by Ext.50 in the estate duty return or assessment. In Ext. 50 it is stated that the properties indicated in Schedules ‘B’ and ‘C were ancestral properties of Jagannath Mahanta. Detailed description of the properties are not given.
D.W. 15 has stated that holding number had been allotted by the time Ext.50 was executed. He has stated that though valuation was put in it, he has no idea about the valuation of building portion. In Ext. 50 at page 2, there is reference that there was a structure but at another place it was written that it was a building. Structure and building are conceptually different, as observed by the apex Court in The Municipal Corporation of Greater Bombay v. The Indian Oil Corporation Ltd. . D.W.20 has stated that she and her brother Woomanath and the witnesses just came and signed and Ext. 50 had been previously typed, and all the immovable properties of Jagannath were covered in Ext.50.
These aspects taken together prove beyond a reasonable doubt that Jagannath has been projected to show that he was the source for meeting construction expenses and money allegedly found in almirah. But in the absence of any material whatsoever to show that he had the means to do so, the plea merits no consideration.
(5) EXPENSES INCURRED:
24. As per prosecution, the total expenditure incurred by the accused during the check period is Rs. 5,42,837.16, whereas the accused claims it to be Rs. 3,29,84,4.76. The disputed items are (a) Food and Clothing;, (b) Electricity charges; (c) Educational expenses; (d) Stamp and registration charges; and (e) Marriage expenses of daughters. These heads of expenditure shall be dealt with separately.
(a) EXPENDITURE ON FOOD AND CLOTHING:
Prosecution -- Rs. 2,41,697.71 Accused -- Rs. 1,76,277.71
25. The prosecution has relied on the evidence of P.W.5, and report Ext.37. The learned counsel for the accused pleaded that all the ten places of posting of the accused have been taken to be in urban area as evident from Ext. 128. But between the period from 20-11-1971 to 2-5-1978 he was posted at Talcher Thermal Power Station and from 3-5-1980 to 4-6-1982 as evident from Ext. 107. During these periods the accused was taken to have been posted at Talcher and Bhadrak which are taken to be urban areas. It is further stated that Ext.37 shows that the report was prepared on the basis of National Sample Survey Report and other reports. While deposing in Court P.W.5 stated that he has relied on NSS report. It is stated that the expenses in rural areas is 37% less. With reference to Ext. 86, it is pleaded that for the period 1988-89 per capita expenditure is 195.94, but in Ext.37 P.W. 5 has taken 413.82 and for 1989-90 — 432.50. It is, therefore, stated that the report Ext. 37 contradicts the NSS report. P.W.5 has clarified that the income group was taken to be the basis and according to him, correct figures have been taken. It is the case of the accused that up to 15 years of age the children are to be taken as minor and for them the unit should be 60% of that taken for the adults. It is further stated that Ext. 37 does not contain correct figures because the price of the consumer goods increase varied between 8% to 90% in comparison to 1982. In Ext. 37 the figures taken for 1983 are higher by 40%, 100% and 60% in respect of food, clothing, fuel and light expenses respectively. P.W.5 has clarified that the price of consumer goods is not the only factor which increases the expenses. With reference to the age pattern and various income groups like Rs. 10,000/- to Rs. 14,999/- Rs. 15,000/-to Rs. 24,999/- and above Rs. 25,000/-, the net income category percentage of saving would be 24.6%, 33% and 44.5% respectively. The income for 1982 as per Ext.128 is Rs. 16,097.45, and expenditure as per Ext.37 is Rs. 11,202.60. Therefore, the saving is Rs. 4,894.85, i.e. 30.4%. Deducting the educational expenses as per Exts. 2, 3 and 4 at Rs. 777.36, the net saving comes to 25.5%. The income for 1983, it is stated, as per Ext. 128 is Rs. 24,374.20. Deducting the expenses as per Ext.37 at Rs. 17,003.40, and educational expenses at Rs. 1142.45, the net saving is Rs. 6,228.35, that is, 25.5%. Similarly for 1984 as per Ext. 128, the income was Rs. 22,996.60 and deducting the expenses at Rs. 17,936.40 and the income-tax of Rs. 299/- the saving is Rs. 4661.20, that is 20.2%. For 1985 the income as per Ext. 128 is Rs. 30,451/-, and deducting the expenses at Rs. 17,293.08, the net saving is Rs. 13,157.92 i.e., 43.2%. For 1986 the income as per Ext.128 shows Rs. 33,216.40 and as per Ext. 37 the expenses are Rs. 18,432.90, and the educational expenses as per Ext. 6 at Rs. 7900.85, the net saving is Rs. 6,798.44, i.e., 20.5%. It is, therefore, urged that the figures given in Ext.37 and the evidence of P.W.5 are of assistance.
26. It is stated that up to 15 years a child is to be taken 0.6 and for adult male 1, and for adult female 0.8. With reference to Ext. 86 Part 2, Section 2 (2.2) calculated on that basis, it is stated that the figure would be less Rs. 19,000/-, and by taking the postings at Talcher and Madagarh to be rural areas there has to be reduction of about Rs. 22,953/-. It is, therefore, stated that on the basis of consumer goods price between the period from 1982 to 1989, as per Ext.37, the expenditure would come to Rs. 1,05,490.40, and the difference is Rs. 32,940.00, when compared with the figure taken by prosecution.
So far as place of posting is concerned, it is accepted that Talcher Thermal Power Station is within the Talcher own limits. At the most it can be called lying on the outskirts and urban area. Similar is the case with Hadagarh. Hypothetical calculations are of very little assistance to the accused. The escalation on the basis of consumer goods calculation cannot be said to be a true index of escalation for arriving at the figure. It has not been shown as to how the figures adopted by P. W.5, an experienced officer are incorrect. It is stated that on the basis of National Sample Survey Report, and other reports like urban income and survey report and price indices for urban non-manual employees, Ext. 37 was prepared. But in Court P. W. 5 stated to have relied on NSS report. A reading of the evidence makes it clear that P.W.5 has not stated that he based his report only on NSS report. The question that was put to him was whether he based his reports on NSS report, and he has replied in the affirmative. There is nothing in his evidence to show that he had based only on that report. Therefore, a combined reading of the evidence of P.W.5 and Ext. 37 shows that the plea that there should be decrease, is untenable. No specific question was put to P. W. 5 as to whether for children up to 15 years the average should be 0.6, for adult male the average should be 1 and for the adult female the average should be 0.8. Ext. 86 is not the only report on which Ext. 37 has its foundation. In the absence of any clarification from P.W.5, in this regard, the plea of the accused cannot be accepted. Considering the fact that for some period the accused was staying in outskirts of the urban areas which can be called semi-urban area. I am inclined to give some relief instead of 37% less as claimed. I fix the quantum at Rs. 5,000/-. Taking into consideration all these factors, expenditure is fixed at Rs. 2,35,000/-.
(b) ELECTRICITY CHARGES :
Prosecution -- Rs. 9,791.99 Accused -- Rs. 5,201.00
27. So far as electricity charges are concerned, according to the prosecution it is Rs. 5791.99, while according to the accused it is Rs. 5,201/-. With reference to Ext.37 it is stated that the electric charges come within the fuel. For Khurda and Talchar official residence Rs. 2095/- was paid. For the period from August 1988 to January, 1989, payment was made on 24-4-1990, amounting to Rs. 1195.90 paise. Up to the check period the actual payment was Rs. 6500.96 paise. It is stated that 20% approximately was taken from the tenants and therefore, a sum of Rs. 1300/- has to be excluded. In the absence of cogent material to substantiate the plea, same is not acceptable and therefore, Rs. 1300/- is not deductible.
Prosecution has relied on Exts. 1.38 and 116 to substantiate its stand. Deducting Rs. 1195.90 paid after check period and Rs. 2,095/- for the official residence, electricity charges are taken at Rupees 6,501/-.
(c) EDUCATIONAL EXPENSES :
Prosecution -- Rs. 25,328.26 Accused -- Rs. 23,482.56 28. So far as the educational expenses are concerned, the relevant Exhibits are Exts. 2, 3, 4, 5, 6 and 7. The total expenditure has been accepted to be Rs. 23,482.56 by the accused. The same has been taken at Rs. 25,328.26 by the prosecution. When the educational expenses are calculated with reference to the aforesaid Exhibits, the correct figure is Rs. 23,482.56. (d) STAMP AND REGISTRATION CHARGES Prosecution -- Rs. 3,098.50 Accused -- Rs. 1,840.50
29. So far as the stamp and registration charges are concerned, according to the prosecution the figures is Rs. 3098.50 whereas according to the accused it is Rs. 1840.50. Prosecution bases its claim on the evidence of P.Ws 19 and 26 and Exts. 47, 48, 51 and 65. It is stated by the accused that partially stamp charges were paid by the vendor. Reliance is placed on Section 51(1)(d) of the Transfer of Property Act, 1882, and Section 29 of the Stamp Act, 1899. The learned counsel for the accused submitted that in respect of Sahira land D.W.20 paid Rs. 582.50 and 50% of the balance amounting Rs. 1258/- was paid by the vendor. In the absence of any material to show that payment of stamp charges were made by the vendor, the view taken by the prosecution is accepted.
(e) MARRIAGE EXPENSES OF DAUGHTERS :
Prosecution -- Rs. 2,50,000/- Accused -- Rs. 1,10,000/-
30. According to the accused, the marriage expenses for two daughters was Rs. 1,10,000/- while according to the prosecution it is Rs. 2,50,000/-. The prosecution has fixed the marriage expenses of the two daughters which were held in June, 1981 and on 29-6-1986 to be Rs. 1,25,000/- each. It has placed reliance on the evidence of P.Ws. 9, 10 and 14 and Exts. 9/1, 41 and 43. Ext. 41 is the property statement of son-in-law Shri Ashok Samal, and Ext. 43 is the property statement of other son-in-law Shri Ganeswar Pradhan. In the property statements, it has been indicated that the prosecution of gold ornaments were by friends and relatives. Manorama (D.W. 20) has stated that no articles were given at the time of marriage. Her eldest sister-in-law had given Rs. 20,000/- for the purpose of purchase of a second hand car, and Rs. 54,000/- was spent. D.W. 20 stated to have given some of her gold ornaments received at the time of her marriage, which D. W. 15 stated to be about 20 to 25 tolas. D.W. 15 stated to have given ear-rings and a ring to the son-in-law, D.W. 16 earrings, sarees, D.W. 22 one gold chain weighing half tola. According to accused making charges were Rs. 1600/-.
So far as marriage feast and other connected expenses are concerned, the figure taken at Rs. 17,250/- is not disputed. Case of the accused is that a sum of Rs. 20,000/- was received from the eldest sister-in-law, and the rest was spent by him. As discussed supra, the receipt from the eldest sister-in-law has not been established. There is no dispute that for the car and the marriage feast etc. Rs. 71,250/-was spent. The dispute relates to gold. Since it is accepted that gold was given, and the property statement show that gold articles were received, the only question is whether the source for the gold articles in respect of 25 tolas, has been explained. The evidence of D.Ws. 16 and 22 so far as gift of gold is concerned, has to be discarded, because of the fact that D.W. 22 was not present at the time of marriage as accepted by him but it is stated by D.?W. 19 that he was present. Similarly the capacity of D.W. 16 to purchase ear-rings and sarees has to be discarded, keeping in view his statement that whatever he earns is spent for his livelihood. The plea that D.W. 20 had received 20 to 25 tolas of gold at the time of her marriage has also to be substantially discarded, because of the same being not mentioned in the property statements filed by the accused submitted in the years 1966 and 1984. Giving credit, however, for the ornaments given by D.W. 15 and D.W. 7 to the extent of 5 tolas, for the balance 20 tolas the cost works out at Rs. 43,000/- which has to be added. Therefore, for marriage of the first daughter the amount is fixed at Rs. 1,14,250/-.
It is to be noted that the receipt of gold on the occasion of marriage has not been disputed. Great emphasis has been laid on the words “received by way of gift during marriage from friends and relatives.” It is urged that there is nothing to show that the receipts were from in-laws alone. Due credit has been given for the gifts by uncles. In the absence of any material as to who were others who could have given or did, the realities of life that parents give major portion of gold ornaments as gifts cannot be lost sight of. It can be looked at from another angle, if accused received gold ornaments as gifts on the occasion of his daughters’ marriages he is also normally expected to reciprocate. This aspect shall be elaborately dealt with while dealing with ornaments found during search. Property statement Ext. 43 shows that 25 tolas were received by Swati from friends and relatives, while her husband received 5 tolas from relatives. Obviously her husband has made a distinction between friends and relatives.
So far as the second daughter is concerned, it is stated that her father-in-law was a freedom fighter, and therefore, did not make any demand. Ganeswar Pradhan, the eldest son-in-law claimed to have received 30 tolas of gold from friends and relatives at the time of marriage. According to the prosecution, the value of gold is Rs. 90,000/- and other expenses made would value at Rs. 35,000/-. The figure relating to other expenses has not been disputed by the learned counsel for the accused. It is stated by D.W. 19 that from her parents’ side she had received 10 to 12 tolas of gold, and the balance 8 tolas were given from her father-in-law’s side. She stated that her parents gave her 2 to 3 tolas of gold. D.W. 20 has stated that 4 to 5 tolas of gold were given at the time of her marriage. D.Ws. 15, 16 and 22 stated to have gifted gold articles. So far as D.W. 20 is concerned, the plea that 4 to 5 tolas of gold were given out of the ornaments which she claimed to have received at the time of her marriage, has been elaborately discussed and discarded above. Interestingly no evidence has been led to show receipt of gold, from the side of father-in-law. In the property statement filed by the son-in-law (Ext. 41) there is mention of 30 tolas with the following description.
“Acquired by self and wife from friends and relatives during marriage ceremony as marriage presentations”.
Obviously this is at variance with statement of D.W. 19, who puts the figure at about 20 from her parents’ side and in-laws side. However, taking realities of life into account and the possibility of D.Ws. 15 and D.W. 7 having gifted, 1 give credit for 5 tolas, and so far as rest 25 tolas are concerned, the value shall be around Rs. 75,000/- and adding the undisputed expenditure of Rs. 35,000/- the total expenses for marriage of two daughters is fixed at Rs. 2,24,250/-.
There is no dispute with regard to expenses the details of which are given below :
Municipal tax -- Rs. 2272/-
LIC -- Rs. 1984.20
M.V. Tax for Scooter -- Rs. 1329.00
ORD 3345
Locker fee in the
U.Co. Bank -- Rs. 475.00
Telephone charges -- Rs. 6490.00
(6) ASSETS ACQUIRED BY THE ACCUSED
According to the prosecution value of assets acquired by the accused was Rs. 8,18,094.89, while the accused claimed it to be Rs. 2,90,409.89. There is no dispute about following acquisitions.
Sl. Description Value
No.
1. Land at Chauliaganj
(0.05 decimals) .. Rs. 16,000/-
2. Agricultural land
(0.46 decimals) .. Rs. 7,000/-
3. Cash found during
search .. Rs. 20,610/-
4. Ambassador car .. Rs. 28,000/-
The disputes relate to (a) buildings at Chauliaganj,
(b) Bank and Postal deposits, (c) House-hold articles found during search, and (d) gold found during search. I have dealt with the valuation of the buildings in great detail earlier. The other items are taken up hereinafter.
(b) BANK AND POSTAL DEPOSITS :
Prosecution -- Rs. 1,60,144.89
Accused -- Rs. 1,20,144.89
31. According to the prosecution the deposits in the banks and the post offices are Rs. 1,60,144.89 whereas according to the accused it is Rs. 1,20,144.89. The differential amount of Rs. 40,000/- relates to a fixed deposit in the names of Ramahari Rout and Saswati Roul in the State Bank of Bikaner and Jaipur, Bajrakabati Road, Cuttack. It is stated by the accused that the said fixed deposit relates to others. According to the prosecution, the evidence of P.W. 26 and Exts. 92 to 99 clearly show that Saswati is no other than the daughter of the accused and has been examined as D.W. 19, and Ramahari Rout is a relative of theirs. According to the learned counsel for accused, signature of Saswati has not been proved to be therein the bank documents, and the signatures were not shown to her, and Ramahari Rout has not been examined. The documents clearly show that there has been some manipulation as Roul has been corrected to Rout. The evidence is inadequate to hold that it related actually to the accused. I find that a partner of Bhagwati Emporium was the introducer for opening of accounts. D.W. 2 is closely connected with said Bhagwati Emporium. Prosecution has not made any effort to bring introducer as a witness. He could have thrown light on the question as to who is the depositor. In view of suspicious circumstances, I direct that the amount in deposit be retained by the bank and not to be paid to any claimant without leave of this Court. But value thereof has to be excluded, and the bank and post offices balance is taken to be Rs. 1,20,144.89.
(c) HOUSE-HOLD ARTICLES FOUND AT THE TIME OF SEARCH:
Prosecution -- Rs. 73,000/- Accused -- Rs. 42,048/-
32. it is stated by the accused that a T. V. value of which has been taken at Rs. 8,770/- and a refrigerator the value of which has been taken at Rs. 4,795/-were purchased by the original mother of Manorama, namely, Malati Jene, vide the documents Exts. 23 and 53 respectively, and stand in the name of Malati. She had purchased the T.V. to be given as gift to D.W. 19 at the time of her marriage, but they were not given. It is stated that Malati who was a chargesheet witness was not examined. Though cash memos were in the name of Malati, her capacity to purchase, and the source from which she had availed it has not been proved. It is stated that her husband Biswanath was doing contract work. No document in that regard has been placed on record. Undisputedly the articles were found in the possession of the accused.
So far as T.V. is concerned, in the cash memo of T.V. (Ext. 53) the address given is C/o. Shri Ashok Kanungo, Naya Bazar, Extension, Cuttack, there is no material to show that Malati had ever stayed with any Ashok Kanungo. D.W. 7, the son of Malati is significantly silent about the purchase of T.V. It is explained by the learned counsel for the accused that Malati had not made any application for release of the T.V. because the receipt stood in her name. This is the version of Manorama. So far as the cash memo (Ext. 23) in respect of Freeze is concerned the address is given C/o. Shri B.C. Roul, Chauliaganj, Cuttack-4. No material has been shown that Malati had ever stayed at Chauliaganj in the house of Shri B.C. Roul.
Further, it was stated that the refrigerator was an old one which had been given to the accused for repair. Significantly there was no other refrigerator in the house. It is hard to believe that Malati was using one refrigerator in the village, while the accused, a high placed official did not have one in his house. The accused was required to prove that the articles were purchased by Malati. He having failed to do so, no credit can be given, and the plea that those were purchased by Malati cannot be accepted.
So far as the scooter is concerned, there is no dispute that a scooter was found in the premises of the accused during the time of search. Accused claimed that his son Saurav had got it from a friend for approval of one of his relatives Anil Kumar Samal (D.W. 8), and vehicle was transferred in his favour in 1993. The undisputed position is that the scooter was booked in the name of Shri Rabindranath Mishra with M/s. Utkal Auto. His father Rama Chandra Misra (D.W. 22) has stated that his son had not taken the scooter and his son had not kept it in the house of the accused. D.W. 8’s evidence does not inspire confidence. Saurav, who is supposed to have negotiated for purchase, has not been examined. If there was negotiation for purchase, there is no reason why parties waited till 1993, and transfer was effected thereafter. It is interesting that the vehicle was given in zima of accused, and there is no permission taken by the accused for allowing the vehicle to be transferred. The cost has been rightly included for the purpose of computation of household articles. In Ext. 45, there is mention that Saurav claimed that it belongs to his friend Rabindranath. There is not even a whisper about Anil.
So far as the articles found at Khurda are concerned, it appears that serial Nos. 1 to 5, 7 to 9, 11, 14, 15, 19, 23 and 42 are official properties and are not to be included. P.W. 26 states that those have been excluded, but in fact, on verification it is found that those have not been excluded. The value comes to Rs. 4,470/-. Therefore, the house hold articles have to be taken at Rs. 68,530/-.
(d) GOLD FOUND DURING SEARCH :
Prosecution -- Rs. 1,26,000/- Accused -- Nil.
33. Forty-one tolas of gold were recovered at the time of search. Three tolas were not taken into consideration. P.Ws. 11, 15, 17, 20 and 26 have stated about the gold ornaments, and there is mention about it in the seizure list (Ext. 45). According to the learned counsel for the accused, about 20 to 25 tolas of gold were received by Manorama at the time of her marriage, and the balance belonged to her youngest daughter Saswati (D.W. 19), who had received at the time of her marriage. It was pleaded that the ornaments of D.W. 19 were kept in a separate container. Emphasis is laid on the evidence of P.W. 15, who stated that there were two containers and weighment was made separately. D.W. 20 stated that one of the containers belongs to her youngest daughter. D.Ws. 19 and 20 have stated that the ornaments were kept in two containers, and when they wanted separate weighment and recording of the ornaments, the DSP (Vigilance) (P.W. 17) refused to accept the request saying that the ornaments were found in one almirah. D.W. 19 stated that she has received 10 to 12 tolas from her parents and relatives and the rest about 8 tolas were given by the in-laws. With reference to Ext. 45, it is urged that the recitals clearly show that they were in two containers. One belongs to the accused’s wife Manorama and the other belongs to daughter Saswati. It is pointed out that serial No. 2 refers to Kanaphul of 20 pairs excluding stones, serial No. 14 refers to 7 pairs excluding stones and serial No. 24 refers to one pair, excluding stone. Serial Nos. 3, 13 and 15 refer to lockets, and lockets with stone and chain, and serial Nos. 4, 8, 15 and 21 refer to seven chains. The plea of the accused that there were two containers is not acceptable on that score because serial Nos. 2, 14, 20, 3, 13 and 15 in groups would indicate possibility of three containers and not two containers as claimed. Therefore, the separate description as given in Ext. 45 does not prima facie show existence of two containers. D.W. 20 states that she received 4 tolas of gold which were found at the time of death of Jagannath Mahanta, and 20 to 25 tolas of gold at the time of her marriage. D.W. 15 also stated accordingly. The evidence of D.Ws. 11 and 17 shows that there was no claim by the accused. Evidence of goldsmith (P.W. 15) and the Executive Magistrate (P.W. 20) shows otherwise. However, evidence of D.W. 20 shows that there was a statement by Manorama (D.W. 20) that a portion of the ornaments was offered to the daughter. Manorama (D.W. 20) states that she made a claim, while D.W. 19, the daughter says that she made a claim. It is her evidence that though she told the vigilance authorities to make a separate list in respect of gold ornaments found in the container, she was advised that for the purpose of the case, one seizure list was to be prepared. Though D.W. 19 stated that lists were prepared of the articles and similar is the statement of P.W. 15 that a list containing details of presentations made at the time of D.W. 19’s marriage was prepared, same is not brought on record. There is no material except the statement of D.W. 19 that she had received some gold ornaments from her-in-laws. There is not even a word breathed about the quantum and the person who presented. Similar is the case with the presentations purported to have been received from the parents and their relatives. D.W. 20 has stated that she had only given 4 to 5 tolas of gold. It is also stated that her husband’s brothers Jayant and Manmath had given gifts. P.W. 19’s evidence is to the effect that both Woomanath and Manmath were present at the time of marriage, and had gifted articles. But Manmath states that he had not attended the marriage of D.W. 19. Jayant claims to have not attended the marriage of D.W. 19. So far as presentation of gold ornaments by Jayant is concerned, his evidence is that on an average he gets Rs. 50/- per day and whatever he earns is spent for maintenance of his family. There is no material to show that he had any source from which he could have acquired the gold ornaments and gifted the same to D.W. 19. Additionally in the property statement given in the years 1966 (Ext. 73) and 1984 (Ext. 74) there is no mention about gold ornaments as claimed to have been received by Manorama at the time of her marriage.
There is another relevant aspect. When it was pointed out to learned counsel for the accused that if gifts were received by accused, he was also expected to reciprocate, he did not dispute it. He fairly accepted it as a reality of life, which cannot be isolated from consideration while judging a case. He, however, submitted that there is no definite material. Evidence of D.W. 19 is that out of the gold seized 20 to 25 tolas were kept in a container by the accused. Regarding the statement of D.W. 19 that she made a claim that the articles were her, Ext. 45 does not show that the accused disclosed that serial Nos. 8 to 24 belonged to his daughter. There is also no specific mark of identification as to who had given the articles, as claimed. Significantly in respect of serial No. 9 in Ext. 45, it has been clearly mentioned by the accused that the pair of binoculars was presented by a friend. Similarly, in respect of the scooter it was stated that the same belonged to one R.N. Misra, a friend of his son. It is, therefore, hard to believe that any claim was made by either Manorama or Saswati that a part of the gold ornaments belonged to Saswati (D.W. 19). The prosecution version is more acceptable, and reasonable, and is accepted.
(7) HOUSE RENT FROM THE HOUSE SITUATED AT APARNA NAGAR. CHAULIAGANJ:
Prosecution -- Rs. 64,850/- Accused -- Rs. 2,03,150/-
34. According to the prosecution, there were seven tenants at different points of time. Their names have been given as, Dinabandhu Sahu (since expired), Pitambar Sahu (D.W. 11), Prasanta Sekhar Panda (D.W. 1), Prasanna Kumar Jena (D.W. 10), Hardev Singh Monga, P.K. Burma (P.W.8) and Gadadhar Pratap (P.W. 7). According to the accused, the total number of tenants were 13, and in addition to seven tenants accepted by’ the prosecution, Diganta Kumar Das (D.W. 18), Sadhu Charan Nayak (D.W. 21), Patitapaban Nayak (D.W. 2), Sambhunath Behera (D.W. 14), Bimbadhar Jena (D.W. 13) and Golakh Chandra Patra (D.W. 17) were there. It is to be noted here that R.S. Monga, son of H.S. Monga was examined as D.W. 12. It is stated by the accused that in addition to rent, electricity charges and water charges were paid, counter-foils of the receipts were produced, and the witnesses examined on behalf of the prosecution as well as defence have clearly stated about the different periods, they were occupying. It is explained that these receipts were in a bag and were not noticed by the searching party during search. In order to establish that the house was really constructed by Jagannath Mahanta some witnesses have been examined to show that they had been paying rent to Jagannath Mahanta, and after execution of Ext. 50 on his direction, they were paying rent to Manorama. Great emphasis has been laid on the evidence of P.Ws. 7 and 8, who have referred to the counter-foils which are marked as Exhibits B to B/13, and C to C/37. It is stated that there being no challenge to the evidence of these witnesses examined by the prosecution, and even if their statements were at variance from the statements made during investigation the defence version is established. The witnesses are respectable persons and there is no reason as to why they would depose falsely.
So far as the letter of the accused to the Investigating Officer giving details of the rent is concerned, it is stated that that cannot be made use of because the statements therein are excluded from consideration in terms of Section 162 of the Code of Criminal Procedure, 1973 (in short, ‘Cr. PC’).
35. Self-incrimination or tendency to expose one-self to a criminal charge is less than “relevant” and more the confessional. Irrelevance is impermissible but relevance is licit but when relevant questions are loaded with guilty inference in the event of an answer being supplied, the tendency to incrimate springs into existence. The accused person cannot be forced to answer questions merely because the answers thereto are not implicative when viewed in isolation and confined to that particular case. He is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation under way is not with reference to that. However, fanciful claims, unreasonable apprehensions and vague possibilities cannot be the hiding ground for an accused person, he is bound to answer where there is no clearly tendency to criminate. (See Smt. Nandini Satpathy v. P.L. Dani, .
The reply given by accused by Exts. 142 and 143 are in the nature of explanation about sources. Such explanations are not covered by Section 162, Cr. PC. Great emphasis has been laid on a decision of the apex Court in Maha Singh v. State (Delhi Administration), . The decision has no application as it related to an offence under Section 5(1)(c) of the old Act, where the question of any explanation was not there. Figure indicated in Ext. 142 is Rs. 1,45,052/- rounded to Rs. 1,45,000/-. It is accepted by the learned counsel for accused that there is no disclosure at any point of time by the accused about the counter-foils, and they were produced for the first time during trial. The plea that they were in a bag and were not noticed by the searching party is too feeble a plea to be accepted. In view of large number of documents being seized, chance of not noticing a bag containing large number of counter-foils is improbable. So far as statements of P.Ws. about the counter-foils are concerned, it is stated by learned Special P.P. that if the counter-foils were brought to the notice of the P.Ws. no copies were given in advance to the prosecution and it was taken by surprise. Even if it is accepted that P.Ws. have made reference to the counter-foils, evidence of P.Ws. 7 and 8 clearly give a lie to the defence version that the house rent was being paid to Manorama, as the owner of the house. P.W. 7 has stated that he was a tenant in the house of Shri P.C. Roul, who issued the receipts. He also stated that the originals of the receipts which were issued were signed by Shri B.C. Roul. So far as P.W. 8 is concerned, he has stated that he was a tenant in the house of Shri B.C. Roul. Usually Mrs. Roul used to issue the receipts. It is the case of the accused that the receipts were issued by Manorama (D.W. 20). That is the statement of Manorama (D.W. 20). Details of the rent were given by the accused as part of his explanation about his pecuniary resources and assets. Therefore, Section 162, Cr. PC, has no application to the facts of the case.
36. So far as counter-foils are concerned, they do not appear to be genuine. They have been written by different inks by different persons. D.W. 13 interestingly stated that he had never seen the counter-foils prior to seeing them in Court on 28-11-1994. D.W. 20 has stated that her son Saurav and sometimes the tenants used to write the counter-foils of the receipts. There is unanimity in the statements of all the D.Ws. that the counter-foils had been written in different inks by different persons and none by any of them. In some of the counter-foils, also the material aspects have been scored out and rubbed. Most of the witnesses cannot say the details of the rooms of the building which they were occupying, and the size of the rooms in their alleged possession. D.W. 18 stated that he has seen the counter-foils for the first time in Court. He has stated that he does not recollect whether the rent which was paid included water charges and electricity charges. In receipt No. 1 of Book No. IV the owner’s name is differently written and the original writing has been rubbed off, and insertions have been subsequently made. Similar is the case in receipt Nos. 6 and 13. D.W. 2 appears to be anxious to protect the accused. He has even not given positive answers in respect of certain queries. D.W. 20 stated that some of the tenants have written the receipts. All the D.Ws. claimed that they have put only their signatures, amount and the date. Strangely the receipts were not written by Manorama, though she is acceptably an educated lady.
So far as D.W. 12 is concerned, he has accepted that his father was a tenant, but his father has not been examined. No reason has been given for his non-examination, it is to be noted that the tenants D.Ws. and P.Ws. 7 and 8 have categorically accepted that there was no written agreement for tenancy. There was also no fixed term as regards the date by which the rent is to be paid. In some cases, for example, receipt No. 25 of Book No. II, there are five different handwritings in three different inks. D.W. 13 has stated that for the first time he stated that he was a tenant and had never stated it earlier. So far as D.W. 14 is concerned, he does not know who were the neighbours in the building of Shri B.C. Roul. In some cases payments of rent have been made even before the month was over. For example, in case of D.W. 14 for the month of May, 1987 rent was paid in the month of May itself. He has, however, stated that payment was to be made as per the oral arrangement in the first week of subsequent month.
So far as D.W. 17 is concerned, he claimed to be a broker. First he stated that he was a broker at Malgodown. He does not possess broker’s licence, though he accepted that to act as a broker, a licence is necessary. Ultimately he accepted that he does not work as broker at Malgodown, but acts as a broker at Chauliaganj. He has no idea about the number of rooms and the number of quarters in the building.
So far as D.W. 21 is concerned, he stated that he-belongs to the neighbouring village of Shri B.C. Roul and stated that he was stating in Court as told by the accused’s counsel. He has accepted that in receipt Nos. 4 and 8 of Book No. IV, the name was subsequently inserted and originally what was written was rubbed off. He also accepted that in receipt No. 13, dust has been rubbed and the portion relating to name of tenant was rubbed off and his name has been inserted. He also accepted that he did not know who were neighbours and when he came to be a tenant and about the number of quarters. Though he stated that he was told by Jagannath Mahanta to pay rent to Manorama, he does not remember the month and the year when Jagannath told him. He has stated that Jagannath Mahanta was staying in his ‘ village. He stated that in receipt No. 4 there was no mention about the month for which the rent was paid, and in receipt No. 6 the figure Rs. 150/- has been corrected to Rs. 1050/-. In receipt No. 16, he accepted that the holding number has been corrected. Further he has accepted that in receipt Nos. 6 and 11 signatures of Manorama were different. He also stated that he did not know what amount was to be paid as electricity, and water charges. It is strange that he did not know the holding number.
So far as D.W. 1 is concerned, he stated that he does not know who are co-tenants, and accepted that in his official correspondence address was given to be the house of Shri B.C. Roul. So far as D.W. 10 is concerned, in Ext. J., i.e., the receipt dated 5-6-1989 Originally the name was written as P.S. Jena, and was written in different handwritings. He claims to have received back a sum of Rs. 3,000/- out of the advance allegedly paid on 15-9-1990. But the signature appears on the backside of counter-foil purported to have been issued by Shri Gadadhar Pratap. He has accepted that in receipt No. 1 the name has been rubbed off and Jagannath Mahanta’s name has been inserted. In receipt No. 12 there is overwriting in respect of the month and tenants’ s name has been scored through and Dinabandhu Sahu has been inserted. Similarly in receipt No. 18, there has been correction. In receipt No. 7 Dinabandhu’s name has been scored through and total amount has been corrected. He has stated that he cannot say whether the house belongs to Manorama. So far as D.W. 20 is concerned, her evidence is still more revealing. She stated that she cannot say who were tenants in 1980. She has stated that the signatures appearing in Exts. D/1 to D/4 and Ext. 50/A-2 though appearing to be different were her signatures. The signature in the application for income certificate (Ext. R) and the depositions are clearly different. So far as Ext. D/9 is concerned, the counter-foil is stated to be relating to P.S. Panda (D.W. 1) and D.N. 20 says that it was written by P.S. Panda, but in respect of others she cannot say who wrote the receipts. In many of the receipts carbon impressions were there. It was stated that to save time the portions which remain constant in different receipts were written by use of carbon paper and that is how the carbon impressions appear in the receipt books. If that is so, the survey number, book number, ward number and holding number could have been written by such process, in respect of Exts. O/2 and M/6 which have been written separately. She claimed that she told the Investigating Officer about the counter-foils, but he did not take note of it. According to her, she told so to the Investigating Officer in the absence of her husband. She accepted not to have informed the higher authorities about existence of the counterfoils. She was not able to say who were the tenants in 1984. About occupation in 1983, she indicated certain names, but stated that she cannot say who were tenants in 1981. It is not disputed that Ext. 142 was given along with Ext. 143. Therein it was stated that Manorama has received rent from January, 1982 onwards on the basis of partition deed (obviously Ext. 50). The differential amount for the period from January, 1982 to March, 1982, towards rent has been indicated to be Rs. 1450/- per month. It has been stated that previously Mr. Datta, Mr. Barua, Mr. P. Das, Mr. Pitambar Sahoo and one Mr. Behera were staying. It is stated that names of present occupants had been stated earlier. The details have been given on 31-3-1990. Interestingly for the periods 1-4-1985 to 31-3-1986, 1-4-1986 to 31-3-1987, 1-4-1987 to 31-3-1988, the heading given is house property whereas in respect of others it is house rent. It is explained that both were intended to convey the same meaning. In view of these documents, the plea that the total house rent received was Rs. 2,03,150/- is not acceptable. In view of unsatisfactory nature of materials placed by the accused, the counter-foils do not merit any consideration.
37. The moot question, however, is what amount of rent was received. It is to be noticed here that in Exts. 142 and 143 there was no mention about separate payment of electricity charges and water charges. It is stated that water and electricity charges were collected separately from the tenants. The plea is clearly untenable because of the irregular manner in which the collections have been shown to have been made. Nothing prevented the same to be collected along with the monthly rent, if that was the arrangement. By way of illustration, case of P.S. Panda (D.W. 1) may be taken. According to accused, he is a tenant since April, 1983. Exts. D/48, D/ 50 show collection of electricity and water charges for 1987 and January to June, 1988 respectively on 5-12-1987 and 21-1-1988. Similarly on 7-5-1988, such charges have been shown to have been collected for July and August, 1988, vide Ext. D/60. On 3-1-1990, charges have been shown to have been collected for 1989. In the absence of any document to show that there was any agreement for payment of water and electricity charges and in view of unsatisfactory nature of oral evidence in that regard, I am inclined to hold that the plea that the water and electricity charges were being separately collected and advance was also received cannot be accepted.
Further the plea relating to tenancy of Sadhu Charan Nayak, Golakh Patra and Bimbadhar Jena has not been established. On the other hand, in view of the analysis made in relation to their evidence, it is clear that there was no tenancy so far as they are concerned. Excluding the amounts claimed to have been received as advance, water and electricity charges and amounts relating to Sadhu Charan Nayak, Golakh Datra and Bimbadhar Jena, the amount comes to about Rs. 1,45,000/- which incidentally is the figure indicated in Exts. 142 and 143. The rental income is, therefore, taken at Rs. 1,45,000/-. In view of this also the question whether Exts. 142 and 143 are hit by Section 162, Cr. PC, is really academic.
38. Since the houses are shown to have come to ownership under Ext. 50, a brief reference in addition to the detailed analysis already made is necessary. Ext. 50 shows that Jagannath had relinquished the property in favour of his son and daughter. The transaction would attract gift tax. There is no material to show that any gift tax was paid. If the property was ancestral, Manorama would have no share in it, and could not have claimed a partition, as the parties admitted to be governed by Mitakshara School of Hindu Law. Section 9 of the Estate Duty Act, 1953 provides that property taken under a disposition made by the deceased purporting to operate as an immediate gift inter vivos whether by way of transfer, delivery, declaration of trust, settlement upon persons in succession, or otherwise, which shall not have been bona fide made two years or more before the death of the deceased shall be deemed lo pass on his death. The provisions of Clause (a) of subsection (2) of Section 9 stipulate that they are not applicable to gifts made in consideration of marriage, subject to maximum of rupees ten thousand in value. Under Section 8, property taken as a gift made in contemplation of death shall be deemed to pass on the donor’s death. It is the case of the accused that because Jagannath was of advanced age, he thought of arrangement in terms of Ext. 50. Question of applicability of Sections 8 and 9 and the statutory compliance as required under the Estate Duty Act would have been clear, had copy of the estate duty return or order been brought on record. Interestedly, that has not been done, and Koomanath (D.W. 15) stated that he docs not know what was written in the return since it was filed up by a lecturer friend. There is no consistency in the stand as to whether the concerned properties of Jagannath were ancestral or self-acquired. The evidence of D.Ws. 15 and 20, if read together, show a confused approach and provocating stands are taken in that regard. It is accepted by the learned counsel for accused that in the property statement of the accused filed in the year 1984 it has been stated that Rs. 40,000/- was received as share of ancestral property by Manorama from 1977 to 1983. It is pointed out by the learned Special P.P. that it has been stated that the money was in a bank. The accused offers an explanation that after the money was received it has put in a fixed deposit along with some other amount. A mere statement about finding money without showing the source or the capacity of the source to have earned the amount would not be sufficient. The inevitable conclusion, therefore, is that the accused has squarely failed to prove that the house at Aparna Nagar, Chauliaganj was constructed by Jagannath Mahanta. As claimed a sum of Rs. 40,000/- was received after the death of Jagannath out of a part of Rs. 73,000/-which is stated to have been found in an almirah. If really, as claimed, Jagannath wanted to divide the properties by metes and bounds, as indicated in Ext. 50 on account of his advanced age, there is no reason as to why no reference was made in Ext. 50 about the money found in the almirah, and as to why no attempt was made to divide the said huge sum of money, particularly when the share of D.W. 15 and D.W. 20 has been stated to be Rs. 60,000/- each. It is also strange that Jagannath did not whisper a word to either D.W. 15 or D.W.20 about the existence of such a huge sum and they only noticed it after his death, when his almirah was allegedly opened. The plea is clearly fallacious and does not stand a moment’s scrutiny.
(8) INTEREST:
Prosecution -- Rs. 5,282/- Accused -- Rs. 9,559/-
39. So far as interest from bank and postal accounts is concerned, the prosecution claims it to be Rs. 5,282/- while the accused claims it to be Rs. 9,559/-. According to the learned counsel for the accused, the interests as evident from Exts. W, 61, and 62 have not been considered. The learned Special P.P. submitted that the accused did not furnish any information during investigation about Ext. 62. It is pointed out that the postal account at Kandrapara was closed and the amount was transferred to Bhubaneswar. The amount at the time of closure was Rs. 5232/-, but the new account as evident was issued on 12-11-1969, and the balance shown was Rs. 7,288.26. The claim of the accused on verification of Exts. 61, 62, 140, 141 and W appears to be correct. The interest income is Rs. 9,560/-.
(9) SHARE OF INCOME FROM ANCESTRAL AGRICULTURAL PROPERTY :
Prosecution -- Rs. 12,293/- Accused -- Rs. 2,24,952/-
40. It is the case of the accused that he had a share in the ancestral property situated in Mouzas Sahira, Saliancha and Sanamanga. Though prosecution does not dispute that there was ancestral property in Sanamanga and Sahira. It is stated that the net income has been correctly taken. First, I shall deal with accused’s case, it is stated by the accused that the Investigating Officer (P.W. 26) has conducted enquiry, but has intentionally omitted to take note that there was double crop of paddy and blackgram. With reference to the record-of-rights (Ext. 75) it is submitted that in Saliancha Sabik Khata No. 231, corresponds to Hal Khata No. 457 and the corresponding plots 2301 and 2302 (Sabik), are 2502 and 2634 (Hal). In the 1927 Settlement it was recorded in the name of Bholi Roul, Grandfather of the accused, and in the Hal settlement it is recorded in the names of accused Shri Bharat Chandra Roul and others. Total area is Ac.2.07, out of which the shares of accused is AO. 13 decimals. With reference to the record of rights marked Exts. T/8 and T/9 corresponding Hal Khata No. 63 (Sabik Khata No. 78) and the plots Hal. 2606 and 2622 and Sabik Plots 2390 and 2407, it is stated that as per 1927 settlement, stood in the name of Bholi Roul, and as per 1992 settlement it stood in the name of Ajambar Roul, father of Shri Bharat Chandra Roul. The Tahsildar by his letter marked Ext. T/7 has referred to this land and the area is indicated to be A1.45 decimals, and the share of the accused comes to 9 decimals, and therefore, in Saliancha the extent of land owned by the accused is A0.22 decimals, i.e., Ao. 13 dec. + AO. 09 dec. These lands are cultivated by Jagannath (D.W. 4) and Damodar (D.W. 5). These two witnesses, apart from D.W. 20, have stated about possession of the land. There was no suggestion to D.Ws. 4, 5 and 20 that neither the accused nor his ancestor had got any land at Saliancha. When the record-of-rights is in the names of different persons, unless the contrary is proved it is to be presumed that they are owners in possession. P.W. 26 has not conducted any enquiry in that regard. Further, it is stated that the accused enjoys the shares of his brothers, and therefore, in reality he gets the usufructs from AO.83 decimals of land including the shares of his brothers. D.W. 5 has stated that there was double crops of paddy and blackgram. Reference to evidence of P.W. 6 and Ext. A shows that the lands are Class II lands and the yield of paddy would be 16 to 20 quintals, and on that basis half share of the accused would come to 9 quintals. After death of Ajambar Roul in the year 1968, accused is in possession, and therefore, for 21 years, i.e., from 1959 to 1989 on the basis of average rates, the total earning would be Rs. 25,200/-. So far as blackgram is concerned. D.W. 5 has stated that 1 to 2 quintals is the yield and share being 50% it comes to 75 kilograms approximately and for 21 years the share of the accused comes to Rs. 9,450/-, and therefore, total income from paddy and blackgram comes to Rs. 34,650/- in respect of land at Saliancha. So far as Sanamanga land is concerned, Tahasildar’s report is Ext. 39, and the Revenue Inspector (P.W. 18)’s report is Ext. 85. The total extent of land has been shown to be AO.20.5 decimals. D.W.5 cultivates this land and sows paddy and groundnut. At the rate of Rs. 150/-per quintal of paddy for 1.23 quintals of yield from one-fifth of an acre the income from paddy and ground-nut comes to Rs. 14.207/-. Similarly with reference to the letter of Tahsildar it is stated that in village Sahira the total extent of land of Ajambar Roul in Khata nos. 342, 9,5 and 7 comes to Ac 1.70 decimals, and the said land is being cultivated by D.W.3. Lift points are available for the purpose of irrigation and therefore, yield in respect of double crops for 21 years is Rs. 21,420/- from paddy and Rs. 95,680/- from groundnut. Accordingly, it is stated that the income from agriculture in respect of ancestral property comes to Rs. 1,55,957/- (Sahira Rs. 1,07,100/-; Saliancha – Rs. 34,650/-; and Sanamang -Rs. 14,207/ -). It is claimed that the brothers of the accused, namely, Jayant Kumar Roul (D.W. 16) and Manmath Nath Roul (D.W.22) have extinguished their shares of income, and accused is in enjoyment of their shares. This has not been taken note of by the prosecution. Exts. 39 and 85 show that Khata nos. 7,8,9,10 and 342 comprise an area of AO.91 decimals. P.W. 18 has accepted that the accused has 91 decimals and 5 karis of land. P.W.26 has admitted that reference in Ext.39 is to D.C. Roul, and his family members, but it meant Ajambar Roul and his four sons. If the four plots of land of mouza Saliancha are added to the area of Sanamanga; the total area would be AO.90 decimals. The report of the Tahsildar reveals that the recorded tenants were Ajambar Roul and others, but in the second column the name of Bharat Chandra Roul was there. There was purchase of AO.48 decimals of land. The investigating Officer (P.W.26), who conducted the enquiry has also not examined any witnesses of the village who could have thrown light about the field. In the sale deed Ext.51, boundaries have been indicated and Radheshyam the boundary tenant has also not been examined. Vendor (P.W.19) has indicated actual state of affairs. P.W.26 has rather accepted that he was not sure of the land and took help of the villagers. It is extremely doubtful whether P.W.26 had at all gone to the village because he has not collected any material in that regard. There is no material relating to type of crops, yield, rate etc. There is no mention about Ext.51, and Ext.40 was produced for the first time in Court. There was no flood and calamities in the area during the period from 1969 to 1981. The income from agriculture as has been taken is based on guess-work, and on the contrary on the basis of evidence of D.Ws 3, 4, 5 and 9, the income has been accurately estimated. It is additionally stated that 15 gunthas of land transferred in favour of the accused’s wife by her natural father Biswanath Jena has been completely left out of consideration. In the records of settlement operation of the year 1970, and the consolidation operation of the year 1978, this land stood recorded in the name of accused’s wife Manorama. Reference is made to Ext. A/4. Moomanath (D.W.15) has also stated that cultivation was going on since 1970, and Manorama used to receive her share from him. Originally the land was being cultivated by Jagannath and after his death, it was being cultivated by D.W. 15. It was stated that the paddy is grown every year, and groundnut and tomato are grown alternatively. Fifty per cent of the yield is given as share of the owner. The report of the Revenue Inspector (D.W.23) marked Ext.R/2 indicates the agricultural income aspect. He has stated that in the year 1990 the agricultural income was Rs. 6,000/-. By taking an average rate of Rs. 2.75 per Kg. of paddy, income from paddy comes to Rs. 1120/-, and for tomato at the rate of Re. 1/- per Kg. for 120 quintals, amount comes to Rs. 5,400/- so far as the share of the accused’s wife is concerned. Thus, income of Rs. 6520/- from paddy and tomato is to be taken note of. It is stated that rate of paddy on an average comes to Rs. 1.50 per Kg. and for 20 years for 5.6 quintals the estimated cost comes to Rs. 16,800/-, and for 13 years taking the cost of tomato on an average rate of Rs. 060 paise per Kg. for 60 Kgs the total comes to Rs. 46,900/-, and for groundnut for every alternate two years the income is Rs. 9,450/- by taking an average rate to be Rs. 6/- per Kg. for 2.25 quintals. Thus, income from Hanupur land by Manorama comes to Rs. 68,370/-.
So far as 46 decimals of land at village Sahira are concerned, shares of Manorama comes to Rupees 26,875/- from fish after taking out share of D.W.4, and the cost of digging. It is stated that the income from fish at the rate of Rs. 20/- per Kg. for 1.5 quintals for all these years comes to Rs. 3,000/-. Deducting the cost of seedling at Rs. 500/- and the share of D.W.4 at Rs. 625/-, it comes to Rs. 1875/-. So far as plantain is concerned, it is submitted that taking estimate income at Rs. 5,000/- per annum, and deducting the share of D.W.4 at 25% it comes to Rs. 3750/-, for six years, at the above rate the total receipt comes to Rs. 22,500/- for plantain and for fish at the rate of Rs. 1875/-, for five years it comes to Rs. 9,375/-. After deducting cost of digging to be Rs. 5,000/-, the net income comes to Rs. 26,875A,
41. I shall first deal with claim relating to the agricultural land standing in the name of Smt. Manorama Mahant in village Hanupur. It is stated that Manorama’s natural father Biswanath Jena had transferred 15 guntha of land and they are situated on both sides of Kendrapara canal. Great emphasis has been laid on the consolidation record Ext.4 and the evidence of D.W.9, 15 and 20. Manorama Mahanta is the natural daughter of Biswanath Jena. She and Woomanath (D.W. 15) are claimed to have been adopted by Jagannath. Interestingly no definite date when the transfer was made in favour of Manorama is indicated by the accused. It is also accepted that when the property statements were filed by the accused in the years 1966 and 1984 vide Exts. 73 and 74 existence of this land in the name of the wife Manorama had not been reflected by the accused. D.W.9, who is supposed to be cultivating the land for last about thirty years, does not even know the area, boundaries. No record of the land is maintained as to the yield and as to what is paid as the share of the owner. A report (Ext.R/4) was submitted by the Revenue Inspector (D.W.23), about income from such land. The report does not mention the Khata number or the plot number. D.W.23 cannot say who submitted the affidavit or the application. He has not mentioned the source from which he learnt about the yield as he has admittedly no personal knowledge. The portion relating to tomato appears to have been subsequently inserted. Manorama in her cross-examination stated that she has no specific idea what was the area and whether it was gift or a sale, and stated that Woomanath may be able to say. She also stated that prior to two years of her marriage in the year 1964 her natural father Biswanath told her about recording of land in her name. But neither her natural brother Perikhita Jena (D.W.7) nor Woomanath (D.W. 15) have thrown any light as to this aspect. Additionally what was the source of investment for acquisition of property has not been indicated. D.W.20 stated that she cannot may about the yield and there was no document to show about it. She accepted to have only gone once to the Tahasildar’s office when it was recorded in her name and not to have sworn any affidavit. But the application for income certificate was accompanied by an affidavit. Woomanath in his cross-examination has stated that he has no knowledge about the details of possession and Parikhita (D.W.7) may be able to say. But interestingly Parikhita (D.W.7) did not say a word about this transfer. So far as capacity of Biswanath to acquire the land in question is concerned, it is simply stated that he was a contractor at Phubani. But not even a scrap of paper has been produced in that regard and about his capacity to invest. In the aforesaid background, there is no scope for accepting the plea of the accused that there was income from Hanupur land.
Further D.W. 15 who is stated to be looking after the land on behalf of Manorama, has given the boundaries stating about Chandramani and Indramani to be in the East, to the North the land of Hadibandhu Sahu, to the South is river Luna, and to the West is the land of Daitari Bahera. Ext.T/4 shows description of the land. The description interestingly shows land of D.W. 15 himself to the North. It is strange that D.W. 15 does not state so. All these lead to the inevitable conclusion that accused has failed to establish any income from Hanupur land claimed to be standing in the name of Manorama.
(b) 42. So far as the lands are concerned as stated above, in Exts. 73 and 74 there is no mention about Hanupur land in the name of Manorama. About the lands of Sahira, the relevant document is Ext. 73 wherein it is stated that the accused has 25% share in Sahira land standing in his father’s name measuring approximately 7 acres. In Ext. 74 it is stated that D.W.20 has 50% share in 46 decimals of land in village Sahira. Rs. 23,500/- is shown to be the income from 1977 to 1983 under the heading ancestral property. At this juncture it is to be noticed that so far as agricultural operations in various lands are concerned, it was stated that one Laxmidhar Rout claiming to be the childhood friend of the accused was looking after the cultivation of the lands of the accused. D.Ws.3, 4 and 5, who claim to be bhag tenants have each said that the yield was being given to Laxmidhar Rout. This Laxmidhar Rout was not examined. It is stated by the accused that on account of his ailment he was not able to attend the Court on some occasions though he was present on a day, when others were examined. It is to be mentioned that on the concerned day, an application for adjournment was sought on the ground of illness of Laxmidhar Rout, and the prayer being rejected the hazira was filed indicating names of five witnesses. That day others were examined, but Laxmidhar Rout was not examined due to paucity of time. Thereafter Laxmidhar was never produced for examination. This Laxmidhar being a vital witness for the defence, his non-examination is significantly suspicious. The learned Special P.P. submitted that the real reason for withholding Laxmidhar is to suppress a vital aspect, since during investigation it was stated by him that he had adopted one of the daughters of the accused and had spent more than Rs. 50,000/- for her marriage. Since this fact has not been brought on record, I do not take any note of the same. But the fact remains that Laxmidhar has not been examined. Each of the witnesses for the defence has stated that he was a bhag tenant under the accused and admitted to have maintained no records whatsoever in respect of the yield and about the payments made as claimed. This is certainly suspicious circumstance. It is also accepted that there was no document to show that they were bhag tenants. In the absence of any such details it is hard to put credence on their evidence.
Further, the witnesses are not able to state about the boundaries and relevant details. Added to it, though in one of the documents, i.e. Ext.T/6, it was claimed that Ac.4.02 dec. of land in village Saliancha was giving substantial income from agriculture, the certificate marked Ext.T/7, shows the land as “Rakhita Anabedi”. Evidence of two brothers of the accused about their share being enjoyed by accused do not inspire confidence. They were not as well placed as the accused. It is, therefore, not common that they would forego their shares in agricultural and leave everything to the accused. Furthermore, the evidence of Manmath Roul (D.W.22) shows that the educational expenses were not made by the accused out of the agricultural income of the joint family consisting of all the brothers, and the ancestral properties of Ajambar, father of the accused. He has also said that food etc, and the expenses of the brothers and sisters were met out of the agricultural income. His marriage expenses in the year 1981 were also met by the accused. He accepted that the area was affected by cyclone in 1967 and 1971.
D.W.20’s evidence is also relevant because she said that she cannot say about the yield and the extent of money given to her. She has admitted that she had not gone to the Sub-Registrar’s office at Pattamundai.
So far as purchase of land measuring AO.46 decimals in her name is concerned, there, is no mention that it was out of her own income. She has no knowledge about the land. As would be evident from her evidence, the rate of land per guntha was Rs. 7,000/- at the time of purchase. She accepted that she cannot say the area over which the tank had been dug, and she has also no knowledge about the area over which the plantain garden is there. She only said that Rs. 5,000/- was given for digging the tank. So far as the evidence of D.W.5 is concerned, he does not claim that he was engaged by all the co-shares as a tenant. Ext.T/7 shows that the land was under unauthorised possession of Ajambar Roul. Interestingly a suggestions was given to the Investigating Officer that the lands were not on bhag basis, but was under the supervision of the accused. D.W.20 has stated that Laxmidhar was in charge of everything and was also looking after the agricultural operation, and since he is a childhood friend of her husband (the accused) he does not take any money, and sometime he was paid Rs. 1000/- or Rs. 1500/-. The evidence of D.W.3 is very revealing. He stated that he has no knowledge about the extent of land of Laxmidhar, but he manages his livellihood with whatever amount he receives from Shri B.C. Roul. P.W.19, the Revenue Inspector, has categorically stated that the lands are not irrigated. Though the income from agriculture is subject to income-tax there is no material to show that the accused reflected any where about the claimed agricultural income, more particularly about enjoyment of income from agriculture of his two brothers.
(c) 43. So far as the land purchased in the name of Manorama (D.W.20) by Ext. 51 is concerned, it is stated by the accused that same was used for pisciculture and plantain garden. From the evidence of P.W.26, it is clear that during investigation he did not notice a tank and found a few plantain trees. As evident from Ext. 144, the land has been recorded as “Sarad, Class II”. The same is the Khatian operative from 1-4-1988. Ext. 51 itself shows it to be agricultural land. There is not a scrap of paper about the yield, any sale or payment of share though D.W.4 claimed to be operating for nearly 8 years. His statement about alleged advance of Rs. 15,000/- has been elaborately discussed and discarded. He does not appear to be a truthful witness. Further, D.W.20 has clearly admitted that she has not seen the lands situated at Sahira, Sanamang and Saliancha. She has also stated that she has no idea about the yield. About the digging of tank, Jagannath (D.W.4) stated that money was spent by Laxmidhar. But evidence of D.W.20 is to the effect that she paid the money directly to Jagannath (D.W.4). The inevitable conclusion is that there was no tank, and plantain garden as claimed by the accused, and the income claimed to have been received has no leg to stand.
(d) 44. According to prosecution, extent of land in Sahira and Sanamang was 46 decimals prior to 1982 and accordingly calculation was made. Tahasildar, Aul vida in his report (Ext.39) has indicated the extent of land possessed by accused and his family members. The same has been construed to be land of Ajambar (father of the accused) and his family members. From evidence of P.W. 18, the position is clear that the share of the accused is 91 decimals 5 karis. So, at the rate adopted by the Investigating Officer (P.W.25), another Rs. 5,000/-is added.
(e) 45. So far as land at Saliancha is concerned, significantly there is no mention about them in Exts. 73 and 74. However, Ext.T/5 (record-of-rights) shows that as 1927 Settlement stands in the name of Bholi Rout, the grandfather of the accused. Total area of the land involved is Rs. 2.07 dec. and share of accused comes to Ac.0.013 decimals. It is submitted that by mistake in Ext.T/9 father’s name of the accused has been wrongly mentioned, but has been clarified by Exts. T/7 and T/8. Total area is Ac.1.43 decimals, and share of the accused comes to AO.09 decimals. In view of the documentary evidence, the yield from the land has to be taken into account. It is claimed that accused was enjoying shares of his three brothers. The plea has been elaborately discussed earlier and discarded. With reference to evidence of D.Ws 16 and 22, the other brother Bhagaban has not been examined. According to D.W.20, Pitambar, uncle of the accused was looking after D.Ws. 16, 22 and sisters. Coming to the income aspect, accused places reliance on the evidence of D.W.5, who is claimed to the bhag tenant. This witness fairly accepted that there is no document whatsoever for throwing light on the tenancy, income or yield aspect. Though the witness claimed to be a tenant for nearly 25 years, he docs not even know basic things about the accused. He claims to belong to Sahira and to be a relative (distant cousin of the accused), and states that accused had no sister and they were only four brothers. This acceptably is not correct. The evidence of this witness does not inspire confidence. The income as claimed by the accused is not even remotely established. However, keeping in view the income taken for other lands, a further amount of Rs. 2,000/- is taken for Saliancha land.
(10) SALE OF LAND :
Accused … Rs. 6,000/-
46. According to accused, a sum of Rs. 6,000/-was received from Smt. Basanta Latika Rout by sale of land measuring AO.02 decimals. A certified copy of the deed is marked as Ext.D. According to prosecution, there was exchange of land, and no consideration passed. For appreciating rival submissions, consideration of the terms of the sale deed is necessary. The deed itself shows that consideration had passed. Therefore, I accept accused’s stand.
Two submissions were made by the learned counsel for the accused to attack validity of the proceeding. Firstly, it was submitted that the Investigating Officer was not authorised and/or competent to investigate and/or submit the charge sheet. A similar plea was considered by a Division Bench of this Court in Biswanath Nayak v. The Hon’ble Presiding Judge and Ors, (OJC No. 1766 of 1994 disposed of on 19-9-1994). The plea was found to be without substance. Considering the view expressed by the Division Bench. I repel the contention of the learned counsel for the accused. The other plea is that the sanctioning authority had no authority to sanction prosecution. The witness proving sanction was not even cross-examined on this aspect. Additionally, when Section 19(3) of the Act was brought to the notice of the learned counsel for the accused, he did not press the plea.
47. Some other relevant aspects which throw beacon light on the controversy need to be noted. Detailed charts of the receipts and expenditure, as claimed by the accused have been filed. According to it, the surplus position would be as follows (as per the defence version).
Up to 1970 – Rs. 36,608/- (Rs. 56,968/- –Rs. 20,360/-) For 1971 the receipt and expenditure as per defence is Rs. 16,011/- and Rs. 4,169/-. If the accused had the surplus up to 1970, and even about Rs. 12,000/- in 1971, making a total sum of Rs. 50,000/ -, he would not have availed loan of Rs. 1,500/- from G.P.F. account for his wife’s treatment. That shows that when he availed the loan in 1971, he did not have even Rs. 1,500/- in hand for which he had to incur the loan. Similarly, he incurred loan of Rs. 4,350/- in 1975-76. A person having huge availability as claimed would not incur loan of small sums like Rs. 1,500/- and Rs. 4,350/-. That gives a lie to the highly inflated figure from agriculture as shown. That is an additional reason to discard the agricultural income as claimed.
CONCLUSION:
Taking into account, all the conclusions arrived at the position can be summed up as follows:
INCOME:
As shown by prosecution -- Rs. 6,09,537/-
Add:
(a) Salary -- Rs. 1,852/-
(b) Agricultural income -- Rs. 7,000/-
(c) Bank interest -- Rs. 4,277/-
(d) House Rent -- Rs. 76550/-
(e) Sale of land -- Rs. 6000/-
--------------
Rs. 95,679/-
---------------
Rs. 7,05,216/-
EXPENSES:
---------------
As shown by prosecution -- Rs. 5,42,837/-
Deduct:
(a) Food etc. expenses -- Rs. 5,000/-
(b) Electricity charges -- Rs. 3,291/-
(c) Education expenses -- Rs. 1,845/-
(d) Marriage expenses -- Rs. 25750/-
--------------
Rs. 35,886/-
-------------
Rs. 5,06,951/-
ASSETS ACQUIRED:
--------------
As per prosecution -- Rs. 8,18,095/-
Deduct:
(a) Cost of buildings at Chauliaganj -- Rs. 52,340/-
(b) Articles found at the time of search Rs. 4,470/-
(c) Bank deposits Rs. 40,000/-
------------
Rs, 96,810
---------------
Rs. 7,21,285/-
--------------
Thus, against proved income of Rs. 7,05,216/-the accused has spent Rs. 12,28,236/- (Expenses –Rupees 5,06,951/- –, and assets acquired –Rs. 7,21,285/-), making a deficit of Rs. 5,23,020/–. Making all permissible allowances for averages and estimates adopted, the amount is fixed at Rs. 5,00,000/ – (five lakhs). Prosecution has established that the accused and members of his family were in possession of pecuniary resources and property disproportionate to accused’s known sources of income at least to the extent of Rs. 5,00,000/-. The accused has committed offence of criminal misconduct in terms of Section 13(1)(e) of the Act, and is punishable under Section 13(2) of the Act read with Section 8(3) of the Special Act, and is convicted accordingly.
Heard learned counsel on the question of sentence. It is the submission of learned counsel for accused that in the meantime accused has retired and considering nature of accusation and evidence led, minimum sentence should be imposed. It is further submitted that provisions of the Probation of Offenders Act, 1958, may be applied. Considering the nature of allegations, and findings recorded, provisions of the Probation of Offenders Act are not to be applied. The accused is sentenced to undergo rigorous imprisonment for three years, and to pay a fine of Rupees Five Lakhs (Rs. 5,00,000/-), and in default of payment of fine to undergo rigorous imprisonment for a further period of eighteen months.
