{"id":219826,"date":"2011-11-25T00:00:00","date_gmt":"2011-11-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajendra-jonko-vs-the-superintendent-of-on-25-november-2011"},"modified":"2018-10-11T21:53:03","modified_gmt":"2018-10-11T16:23:03","slug":"rajendra-jonko-vs-the-superintendent-of-on-25-november-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajendra-jonko-vs-the-superintendent-of-on-25-november-2011","title":{"rendered":"Rajendra Jonko vs The Superintendent Of on 25 November, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Rajendra Jonko vs The Superintendent Of on 25 November, 2011<\/div>\n
Bench: R. C. Chavan<\/div>\n
                            1                    APEAL-270.01\n\n        IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                           \n                  APPELLATE JURISDICTION\n\n\n\n\n                                   \n             CRIMINAL APPEAL NO.270 OF 2001\n\n\n     Rajendra Jonko,\n\n\n\n\n                                  \n     residing at Flat No.101,\n     17\/D MHADA Customs Colony,\n     Adi S. Marg, Powai,\n\n\n\n\n                           \n     Mumbai-400 076.\n                 ig                ....         Appellant\n         - Versus -\n     1. The Superintendent of\n               \n        Police, Central Bureau\n        of Investigation,\n        Anti Corruption Bureau,\n      \n\n\n        Tanna House, Nathalal\n   \n\n\n\n        Parekh Marg, Coloba,\n        Mumbai-400 005.\n\n\n\n\n\n     2. The State of Maharashtra   ....         Respondents\n\n\n     S\/Shri R.M. Agarwal, Senior Counsel with\n\n\n\n\n\n     Prakash Naik for the Appellant.\n\n     Shri Milind Sawant, Public Prosecutor\n     for Respondent No.1-CBI.\n\n     Ms P.P. Bhosale, Addl. Public Prosecutor,\n     for Respondent No.2-State.\n\n\n\n\n                                   ::: Downloaded on - 09\/06\/2013 17:57:04 :::\n                                         2                             APEAL-270.01\n\n                        CORAM : R.C. CHAVAN, J.\n\n\n\n\n                                                                               \n                        RESERVED ON              : SEPTEMBER 29, 2011\n\n\n\n\n                                                       \n                        PRONOUNCED ON: NOVEMBER 25, 2011\n\n     JUDGMENT:\n<\/pre>\n
     1.         This       appeal       is       directed           against           the<\/p>\n
     conviction         of      the    appellant,                an      Assistant
\n     Collector        of
\n                       ig    Central             Excise,          for        offence
\n     punishable         under      Section            12(2)        r\/w       Section
\n     13(1)(e) of the Prevention of Corruption Act,<\/p>\n
     1988     (for      short,         the       PC      Act,         1988 )          and
\n     sentence      of      RI    for        4    years         with        fine         of
\n     `5,000\/- or in default further imprisonment for<\/p>\n
     6    months     inflicted          by       the        learned          Special<\/p>\n
     Judge, Mumbai.\n<\/p>\n
     2.         It was alleged that the appellant had
\n     received        towards          pay        and        allowances              from
\n     15-11-1979 to 12-11-1987 a sum of `1,40,034.45,
\n     interest from Banks amounting to `57,672.51 and<\/p>\n
     had borrowed `65,600\/-                     from        State         Bank          of
\n     India.     He      thus     had        amount          of     `2,63,306.96
\n     available to him. His expenses for the period
\n     were   quantified           at    `82,207.04                and      thus        was
\n     likely     to       have         saving           to      the        tune          of
\n     `1,81,099.32.           But       as        on         12-11-1987,               the<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span>
\n                                        3                         APEAL-270.01<\/p>\n
     appellant        was        possessed         of       assets            worth<\/p>\n
     `6,42,882.42\/-            and     thus        the        assets            were<\/p>\n
     disproportionate to the tune of `4,61,783.10 to
\n     his known sources of income. These conclusions
\n     were reached upon investigation which commenced<\/p>\n
     on     receipt       of   information           by      PI      Prabhakar
\n     Shinde. On completion of investigation, papers
\n     were     sent    to       appropriate         authority             seeking<\/p>\n
     sanction        to    prosecute         the        appellant.              Upon
\n     receipt
\n     before
\n                of
\n                the
\n                       ig sanction,
\n                          Special
\n                                           charge-sheet
\n                                       Court        on
\n                                                                    was
\n                                                             5-3-1990
\n                                                                              filed
\n                                                                                  for<\/p>\n
     offence     punishable           under        Section           5(2)         r\/w
\n     Section 5(1)(e) of the Prevention of Corruption
\n     Act, 1947 (for short,                 the PC Act, 1947 ) .\n<\/p>\n
     3.         The       appellant        pleaded        not       guilty          to
\n     the charge of offence punishable under Section
\n     5(2) r\/w Section 5(1)(e) of the PC Act, 1947 on<\/p>\n
     28-11-1997.          Since      the    appellant          pleaded            not
\n     guilty,     he        was       put     on     trial           at        which
\n     prosecution examined in all 31 witnesses in its<\/p>\n
     attempt to bring home guilt of the accused. The
\n     defence of the accused was that assets standing
\n     in the names of his wife Nirmala, sisters Rani
\n     and Munni and father were their own asset. He
\n     did not know if they had any independent source
\n     of income or not. The amounts were given by his
\n     father. He had not taken loan of `65,600\/- from<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span>
\n                                         4                       APEAL-270.01<\/p>\n
     State Bank and had not purchased cars or house.\n<\/p>\n
     He    also    filed        a    detailed     written           statement<\/p>\n
     explaining his assets. After considering the
\n     evidence tendered, the learned Special Judge
\n     held that even if income as suggested by the<\/p>\n
     appellant      was       taken        into   consideration,                 the
\n     assets were disproportionate by `3,86,570\/- to
\n     the    income       of     the     appellant         and       therefore<\/p>\n
     convicted       and        sentenced         the      appellant               as
\n     mentioned<\/p>\n
                        earlier.\n<\/p>\n
     appellant has preferred this appeal.\n<\/p>\n
                                           Aggrieved        thereby              the<\/p>\n
     4.           The appeal was first heard and allowed
\n     by    Judgment      dated        30-6-2004      by      Hon’ble           Shri<\/p>\n
     Justice D.G. Deshpande. The State challenged<\/p>\n
     the    order       before       the    Supreme      Court.          By      its
\n     Judgment dated 25-9-2006 the Supreme Court set
\n     aside the Judgment of this Court and directed<\/p>\n
     that    this       Court       shall    decide      the       appeal          on
\n     merits       and     if        this     Court      comes           to       the
\n     conclusion          that        case      for      upholding                the<\/p>\n
     conviction         is     made        out,   this        Court          shall
\n     correct the error of the trial Court in handing
\n     down conviction under Section 13 of the PC Act,
\n     1988 and shall convict the appellant of offence
\n     punishable under Section 5(2) r\/w Section 5(1)\n<\/p>\n
     (e) of the PC Act, 1947. This is why the appeal
\n     was reheard.\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span><\/p>\n
                                              5                        APEAL-270.01<\/p>\n
               5.         I have heard the learned counsel for<\/p>\n
               the appellant and the learned PP for the CBI.
\n               With the help of both the learned counsel, I
\n               have gone through the evidence. In respect of<\/p>\n
               assets     attributed        to    the        appellant,                the
\n               evidence collected is as under:-<\/p>\n
\n\n\n\n\n                                           \n    Sr.     Nature of Asset        In the Names   Value Rs.         Evidence         Remarks\n    No.                          ig     of            Ps\n\n    1.    Debentures of Tata    Munni+Nirmala     30000.00       PW-2\n          Chemicals             +Rani+Nirmala                    Yashodhara\n                               \n                                                                 Exs.23, 24\n\n    2.    FDRs of Mazgaon Dock ?                  10000.00       PW-12\n                                                                 Selvaraj M\n                                                                 Ex.80\n             \n\n\n    3.    FDRs of Stock         2FDs Nirmala,     12000.00       PW-7       3\n          \n\n\n\n          Exchange              Rani, Munni                      Coutinho   persons\n                                                                 Exs.49, 50 each\n\n    4.    FDRs with Hindustan   Rani+Nirmala      10000.00       PW-13\n          Construction Co.      Munni+Nirmala                    Kavita\n\n\n\n\n\n          Ltd.                                                   Exs.82, 83\n\n    5.    Debentures with       Rani & Nirmala    15000.00       PW-11      3x10x5\n          Mahindra & Mahindra                                    Raghvachar\n                                                                 i\n                                                                 Exs.64 to\n\n\n\n\n\n                                                                 68, 69, 73\n\n    6.    CDRs of Indian Oil    Nirmala           20000.00       PW-14              (only\n                                +Appellant,                      Vidyadhar          15000\/-\n                                Munni+Nirmala,                   Exs.86 to          ?)\n                                Rani+Nirmala                     88<\/span>\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 17:57:04 :::<\/span>\n                                               6                    APEAL-270.01\n\n    7.    FDRs of J.K.          Nirmala &         12000.00    PW-1               Invest-\n\n\n\n\n                                                                             \n          Synthetic             Rajendra Jonko                Mahesh             ment by\n                                                              Shah               cheque.\n                                                              Exs.17 to          Source\n\n\n\n\n                                                     \n                                                              21                 not\n                                                                                 traced.\n\n    8.    FDRs with Hindustan   Munni, Rani,      20000.00    PW-6               4 FDs\n          Petroleum             Nirmala,                      Salunke            each in\n\n\n\n\n                                                    \n                                Gunjan                        Exs.44-47          name of\n                                (daughter)                                       three\n                                                                                 persons\n                                                                                 Nirmala\n                                                                                 common\n\n\n\n\n                                             \n                                                                                 in all\n                                                                                 FDs.\n\n    9.    Debentures of Birla\n          Jute Industries\n                                \n                                Gunjan+Nirmala\n                                Munni+Nirmala\n                                                  30000.00    PW-8\n                                                              Gajanan\n                                Nirmala+Rani                  Agrawal\n                               \n                                Rani+Nirmala                  Exs.\n                                                              99-102.\n\n    10.   FDRs\/CTD Premier                        20000.00    PW-3 Roy\n          Automobiles                 ?                       D Souza\n             \n\n                                                              Ex.26\n          \n\n\n\n    11.   Debentures Indian     Nirmala+Munni     30000.00    PW-10              75 each\n          Hotels Co.            Munni+Nirmala                 Prabhakar          pair of\n                                Gunjan+Nirmala                Phatak             holders\n                                Rani+Nirmala                  Exs.59-62\n\n\n\n\n\n    12.   FDRs of TELCO         Nirmala,          32000.00    PW-5 Navin 6 FDs\n                                Rajendra,                     Kumar Exs. each in\n                                Rani, Munni                   36 to 42   Joint\n                                                                         name of\n                                                                         two\n                                                                         persons\n\n\n\n\n\n                                                                         each\n\n    13.   Debentures of         Nirmala, Rani,    4000.00     PW-9               10 each\n          Reliance Ltd.         Gunjan,                       Padmakar\n                                Jonko                         Exs.54-57\n\n\n\n\n                                                     ::: Downloaded on - 09\/06\/2013 17:57:04 :::<\/span>\n                                          7                     APEAL-270.01\n\n    14.   Bank balance       Rajendra,       34644.40     PW-4\n\n\n\n\n                                                                         \n                             Nirmala,                     Gopalan\n                             Gunjan                       Aiyar Exs.\n                                                          28-32.\n\n\n\n\n                                                 \n                                                          PW-21\n                                                          Hiralal\n                                                          Jain Ex.\n                                                          108.<\/span>\n\n\n\n\n                                                \n                                                          PW-22\n                                                          Ramchandra\n                                                          Exs.\n                                                          110-112.\n\n\n\n\n                                        \n                                                          PW-23\n                                                          Indrakant\n                              ig                          Canara\n                                                          Bank Exs.\n                                                          114-114A.\n                            \n                                                          PW-26\n                                                          Anant\n                                                          Maliar\n                                                          Central\n                                                          Bank Ex.\n             \n\n                                                          125.<\/span>\n          \n\n\n\n    15.   Two Cars           Nirmala         180038.00    PW-15              Loans\n                             Munni                        Madan\n                                                          Mairal\n                                                          Exs.96,\n                                                          97.<\/span>\n\n\n\n\n\n                                                          PW-19\n                                                          Rajan\n                                                          Masukar\n                                                          Ex.104.\n\n                                                          PW-20\n\n\n\n\n\n                                                          Sanjay\n                                                          Chavan Ex.\n                                                          160.<\/span>\n\n    16.   National Savings                   82000.00     PW-15\n          Cetificate                                      Madan\n                                                          Mairal Ex.\n                                                          91.<\/span>\n\n                                                          PW-16\n                                                          Narayan\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 17:57:04 :::<\/span>\n                                                8                         APEAL-270.01\n\n    17.   House at                                    49500.00      PW-22 Ram-\n\n\n\n\n                                                                                   \n          Chakradharpur                                             chandra\n                                                                    Ex.\n                                                                    133-136,\n\n\n\n\n                                                           \n                                                                    SBI.\n\n                                                                    PW-25 K.C.\n                                                                    Mishra\n                                                                    Exs.122,\n\n\n\n\n                                                          \n                                                                    123 SBI.\n\n                                                                    PW-28\n                                                                    Sujit\n                                                                    Moitra Ex.\n\n\n\n\n                                              \n                                                                    132 SBI.\n\n    18.   Loan to Akundi          ig                  50500.00      -      -\n          Sundaramma\n    19.   Telephone Deposit                           1200.00\n                                \n                                                     642882.42\n\n    20.   Gold earrings            Nirmal Jonko       6844.00       PW-8\n          32.950 grams                                              Deepak Ex.\n          21.984                                                    52<\/span>\n             \n          \n\n\n\n               In   addition        to   the       above     witnesses,               other\n               witnesses examined are:\n\n\n\n\n\n               PW-17       Dr. Saifee, the appellant s landlord at\n                           Indore     who    states     that        the        appellant\n<\/pre>\n
                           paid rent @ Rs.700\/- per month to him.\n<\/p>\n
               PW-24       Ram     Raj      Bharati,        Under          Secretary,
\n                           Government of India who proves sanction
\n                           to prosecute.\n<\/p>\n
               PW-27       Sunil     Kumar     of    Biri      Trading           Company
\n                           about income of the appellant s father<\/p>\n
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\n                                      9                         APEAL-270.01<\/p>\n
               (Exhibit-130),<\/p>\n
     PW-29     PI P.B. Shinde, Investigating Officer.\n<\/p>\n
     PW-30     PI Raman Tyagi, Investigating Officer.\n<\/p>\n
     6.         The learned counsel for the appellant
\n     first submitted that the properties shown in<\/p>\n
     the names of the appellant’s father, wife or<\/p>\n
     termed     as<\/p>\n
     sisters would have to be excluded from being
\n                      the     appellant’s              properties.                He<\/p>\n
     submitted that the charge does not show that
\n     the appellant was alleged to have held those
\n     assets    benami.      Therefore,           according            to      him,<\/p>\n
     since     the    charge        does       not     show        that         the<\/p>\n
     properties in the name of his relations were in
\n     fact owned by him, those properties ought to be
\n     excluded    and    if     they        are    so     excluded,              the<\/p>\n
     assets     of    the     appellant           are       not        at       all
\n     disproportionate          to        his     known        sources             of
\n     income.    For    this     purpose,         he     relied          on      the<\/p>\n
     following Judgments-\n<\/p>\n
     7.         In Jaydayal Poddar (Deceased) through
\n     L.Rs.     and    another       v.     Mst.       Bibi       Hazra          and
\n     others,     reported       in       AIR     1974      SC      171,         the
\n     Supreme Court was considering the question of
\n     nature of onus and proof in respect of benami<\/p>\n
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\n                                10                     APEAL-270.01<\/p>\n
     transactions in the context of provisions of<\/p>\n
     Section 54 of the Transfer of Property Act. In<\/p>\n
     para   6   of   the   Judgment,   the     Court         held        as
\n     under:\n<\/p>\n
             …. The essence of a benami is the
\n            intention of the party or parties
\n            concerned; and not unoften such
\n            intention is shrouded in a thick<\/p>\n
            veil which cannot be easily pierced
\n            through. But such difficulties do<\/p>\n
            not relieve the person asserting the
\n            transaction to be benami of any part
\n            of the serious onus that rests on<\/p>\n
            him; nor justify the acceptance of
\n            mere conjectures or surmises, as a
\n            substitute for proof. The reason is
\n            that a deed is a solemn document<\/p>\n
            prepared     and     executed      after
\n            considerable deliberation, and the<\/p>\n
            person   expressly     shown   as    the
\n            purchaser in the deed, starts with
\n            the   initial    presumption    in   his
\n            favour that the apparent state of<\/p>\n
            affairs   is   the    real   state    of
\n            affairs.    Though     the    question,
\n            whether a particular sale is benami
\n            or not, is largely one of fact, and
\n            for determining this question, no<\/p>\n
            absolute   formulae or acid test,
\n            uniformly     applicable      in     all
\n            situations, can be laid down; yet in
\n            weighing the probabilities and for
\n            gathering the relevant indicia, the
\n            courts are usually guided by these
\n            circumstances: (1) the source from
\n            which the purchase money came; (2)
\n            the nature and possession of the
\n            property, after the purchase; (3)
\n            motive,    if any, for giving the<\/p>\n
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\n                                       11                       APEAL-270.01<\/p>\n
            transaction a benami colour; (4) the<\/p>\n
            position of the parties and the
\n            relationship, if any, between the<\/p>\n
            claimant and the alleged benamidar;
\n            (5) the custody of the title-deeds
\n            after the sale and (6) the conduct
\n            of the parties concerned in dealing<\/p>\n
            with the property after the sale.
\n            The above indicia are not exhaustive
\n            and their efficacy varies according
\n            to   the   facts   of   each   case.\n<\/p><\/blockquote>\n
            Nevertheless No.1, viz. the source<\/p>\n
            for determining whether the sale
\n            standing in the name of one person,<\/p>\n
            is in reality for the benefit of
\n            another.\n<\/p><\/blockquote>\n
     This Judgment was followed up in Bhim Singh
\n     (dead)    by     L.Rs.     and        another     v.      Kan       Singh,<\/p>\n
     reported in AIR 1980 SC 727.\n<\/p>\n
     8.          In Krishnanand Agnihotri v. State of
\n     M.P., reported in AIR 1977 SC 796, the Supreme<\/p>\n
     Court considered the question of assets in the
\n     context     of     provisions          of   Section          5     of      the
\n     Prevention of Corruption Act, 1947. The Court<\/p>\n
     was considering, amongst other things, whether
\n     a sum of `11,180\/- lying in fixed deposit with
\n     Allahabad Bank, Varanasi, in the name of Shanti
\n     Devi     belonged     to    the         appellant,            a      public
\n     servant, or to Shanti Devi. In this context, in
\n     para   26    the    Court    observed           as      under          after
\n     relying on the Judgment in Jaydayal Poddar s<\/p>\n
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\n                           12                    APEAL-270.01<\/p>\n
     case (supra):\n<\/p>\n
          It is difficult to see how in the
\n         face of this overwhelming evidence it
\n         could be concluded that the sum of
\n         Rupees   11,180\/-   lying    in   fixed<\/p>\n
         deposit in Shanti Devi’s name was an
\n         asset belonging to the appellant. It
\n         must be remembered that the fixed
\n         deposit stood in the name of Shanti
\n         Devi and the burden, therefore, lay<\/p>\n
         on the prosecution to show that
\n         Shanti Devi was a benamidar of the<\/p>\n
         appellant. It is well settled that
\n         the   burden   of   showing    that   a
\n         particular transaction is benami and<\/p>\n
         the appellant owner is not the real
\n         owner always rests on the person
\n         asserting it to be so and this burden
\n         has to be strictly discharged by<\/p>\n
         adducing legal evidence of a definite
\n         character which would either directly<\/p>\n
         prove the fact of benami or establish
\n         circumstances      unerringly       and
\n         reasonably raising an inference of
\n         that fact. The essence of benami is<\/p>\n
         the intention of the parties and not
\n         unoften, such intention is shrouded
\n         in a thick veil which cannot be
\n         easily pierced through. But such
\n         difficulties   do  not    relieve   the<\/p>\n
         person asserting the transaction to
\n         be benami of the serious onus that
\n         rests   on   him,  nor   justify    the
\n         acceptance of mere conjectures or
\n         surmises as a substitute for proof.
\n         (Vide Jayadayal Poddar v. Mst. Bibi
\n         Hazra,<\/a> (1974) 2 SCR 90 = (AIR 1974 SC\n<\/p><\/blockquote>\n
         171). It is not enough merely to show
\n         circumstances   which   might    create
\n         suspicion, because the court cannot<\/p>\n
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\n                                13                        APEAL-270.01<\/p>\n
             decide on the basis of suspicion. It<\/p>\n
             has   to   act   on   legal   grounds
\n             established by evidence. Here, in the<\/p>\n
             present case, no evidence at all was
\n             led on the side of the prosecution to
\n             show that the monies lying in fixed
\n             deposit in Shanti Devi’s name were<\/p>\n
             provided   by   the   appellant   and
\n             howsoever strong may be the suspicion
\n             of the court in this connection, it
\n             cannot take the place of proof. It
\n             must, therefore, be held that the<\/p>\n
             prosecution has failed to show that
\n             the sum of Rs. 11,180\/- lying in<\/p>\n
             fixed deposit in Shanti Devi’s name
\n             belonged to the appellant.\n<\/p><\/blockquote>\n
     This was followed up in P. Satyanarayan Murty
\n     v. State of Andhra Pradesh,<\/a> reported in (1992)<\/p>\n
     4 SCC 39.\n<\/p>\n
     9.         The learned counsel for the appellant
\n     submitted, relying on these authorities, that<\/p>\n
     the     difficulties     of     the       prosecution                  in
\n     establishing that a transaction was benami do
\n     not   relieve    the   prosecution       of      the       onus        to<\/p>\n
     prove that the transaction was benami and that
\n     the Court cannot decide a case merely on the
\n     basis     of    suspicion.     The     learned            counsel,
\n     therefore, submitted that the evidence tendered
\n     by the prosecution falls far too short of the
\n     standard of proof required to be tendered.\n<\/p>\n
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                                  14                        APEAL-270.01\n\n     10.        He   further    submitted          that       since         the\n\n\n\n\n                                                                     \n     charge     does    not     mention       that        the        assets\n\n\n\n\n                                             \n     standing     in    the     name    of      the        appellant s\n<\/pre>\n
     relations were held by the appellant benami in
\n     the names of his relations, the evidence could<\/p>\n
     not at all be looked into and for this purpose
\n     relied on a Judgment of the Supreme Court in
\n     Shamsaheb M. Multtani v. State of Karnataka,<\/a><\/p>\n
     reported    in     2001    SAR     (Criminal)             196.         The
\n     Judgment    was
\n                      igrendered       in    the
\n     different offence. In that case, there was no
\n                                                     context            of      a<\/p>\n
     charge of offence punishable under Section 304-
\n     B of the IPC and that the charge was only under
\n     Section 302 of the IPC.\n<\/p>\n
     11.        The learned PP for the CBI countered
\n     by    submitting    that    the    charge         categorically
\n     mentions all these properties and the details<\/p>\n
     furnished with the charge-sheet also show names
\n     of the persons who were shown to be the holders
\n     of the assets concerned. He submitted that most<\/p>\n
     of the fixed deposit receipts or debentures are
\n     either in the name of the appellant’s wife or
\n     the    appellant     or     the        appellant           and         the
\n     appellant’s wife together, or one or two of the
\n     appellant’s sisters with the appellant’s wife
\n     or the appellant’s daughter and the appellant’s
\n     wife together, as indicated in the chart in the<\/p>\n
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\n                                         15                         APEAL-270.01<\/p>\n
     earlier      part      of    this       Judgment.          He     submitted<\/p>\n
     that the contention that the charge does not<\/p>\n
     mention that the properties were held benami,
\n     therefore,        has       no      substance.             This          charge
\n     categorically lists the properties and alleges<\/p>\n
     that     the     appellant          was      possessed            of       those
\n     assets. Therefore, mere absence of use of the
\n     word     benami        would not matter. The learned PP<\/p>\n
     further rightly submitted that the crucial test<\/p>\n
     would be whether the persons concerned have any
\n     independent source of income to have been able<\/p>\n
     to acquire the assets. He submitted that the
\n     evidence       would        show       all    these         assets           were
\n     acquired       with     the      income       of      the       appellant.\n<\/p>\n
     Therefore,       this       contention          about          failure           to<\/p>\n
     mention that the appellant owned assets benami
\n     in     the     names    of       his      relations           has       to       be
\n     rejected.\n<\/p>\n
     12.          The learned counsel for the appellant
\n     next submitted that the assets standing in the<\/p>\n
     name    of     the     relations         were      acquired            by      the
\n     relations themselves and there is nothing to
\n     show     that        they        were        acquired            with          the
\n     appellant s          funds.      He      pointed         out       that        the
\n     appellant’s            father           Birsingh           Ho         was          a
\n     respectable            cultivator             in          Chakradharpur
\n     District. Birsingh Ho s father Budhan Ho was in<\/p>\n
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\n                                         16                        APEAL-270.01<\/p>\n
     fact Mukhiya of the village. He submitted that<\/p>\n
     Birsingh was cultivating the land and was also<\/p>\n
     working    as    a     part-time         accountant             with        Biri
\n     Trading    Company       and       was       not    a     biri       worker.
\n     Birsingh       had    two     wives,         having        married            the<\/p>\n
     second after the first wife died. The appellant
\n     had Budhan Jonko and Sukhram Jonko as his real
\n     brothers,       Uday     Jonko          as    his        step-brother,<\/p>\n
     Savitri    Jonko       as     his       sister,         Jamuna          Jonko,<\/p>\n
                that<\/p>\n
     Munni Jonko and Rani Jonko as step-sisters. He
\n     stated                 the        appellant s            father-in-law<\/p>\n
     Dharamdas Mundari was an Assistant Commssioner
\n     of     Sales     Tax        and     retired           as       Additional
\n     Secretary,       Finance           Ministry          in       the         State<\/p>\n
     Government. The appellant married Nirmala, the<\/p>\n
     daughter of Dharamdas in 1981. Nirmala s uncles
\n     also    held    big     posts       in    Food       Corporation                of
\n     India     and    as     a     Civil          Surgeon.          Therefore,<\/p>\n
     according       to    him,    the       family       had       sufficient
\n     nucleus to provide for acquisition of assets in
\n     the names of Rani and Munni, the appellant s<\/p>\n
     step-sisters and Nirmala, the appellant s wife,
\n     coming from the appellant s father and father-
\n     in-law. The learned counsel also pointed out
\n     that there is nothing on the record to show
\n     that the investments came from the appellant.\n<\/p>\n
     13.        He relied on a Judgment of the Supreme<\/p>\n
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\n                                17                       APEAL-270.01<\/p>\n
     Court    in   D.S.P.   Chennai      v.   K.      Inbasagaran,<\/a><\/p>\n
     reported 2006 Cri.L.J. 319, where the Court was<\/p>\n
     considering the assets standing in the name of
\n     a public servant’s wife. In this context, the
\n     following     observations     of    the      Court         may       be<\/p>\n
     usefully reproduced as under:\n<\/p>\n
              15. …. Therefore, the initial<\/p>\n
             burden was on the prosecution to
\n             establish whether the accused has<\/p>\n
             acquired          the           property
\n             disproportionate to his known source
\n             of income or not. But at the same<\/p>\n
             time it has been held in a case of
\n             State of M.P. Vs. Awadh Kishore
\n             Gupta and Others reported in (2004)
\n             1 SCC 691 that accused has to<\/p>\n
             account   satisfactorily     the   money
\n             received in his hand and satisfy the<\/p>\n
             court   that   his    explanation    was
\n             worthy of acceptance. In order to
\n             substantiate the plea taken by the
\n             accused that all the moneys which<\/p>\n
             had been received belonged to his
\n             wife and in support thereof he has
\n             examined as many as 13 witnesses
\n             including himself, his wife and his
\n             son-in-law. D.W. 12 is the wife of<\/p>\n
             the accused. She has deposed that
\n             the entire money belonged to her.<\/p><\/blockquote>\n
             She has admitted the raid on her
\n             house and she has also admitted that
\n             she   has   amassed    the   wealth   by
\n             selling   cycle    rims    and   leather
\n             products without any bill and out of
\n             the money amassed by her she had
\n             persuaded her husband to deposit the
\n             same at various Banks. She has come
\n             forward and admitted the recovery of<\/p>\n
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\n                        18                   APEAL-270.01<\/p>\n
      the foreign exchange at her house<\/p>\n
      and she has accounted for the same.
\n      She has also admitted the recovery<\/p>\n
      of the gold ornaments at her house
\n      and she has explained that she has
\n      purchased those gold ornaments. She
\n      has also submitted that some real<\/p>\n
      estate was purchased out of self
\n      earning as well as the loan from the
\n      mother of the son-in-law and some
\n      contribution was made by the son-in-
\n      law and the son-in-law has also<\/p>\n
      admitted. Likewise, D.W.8 – her son-
\n      in-law,ig Thiru   S.Rajasankar    also
\n      appeared in the witness box and
\n      admitted that he has also saved
\n      certain foreign exchange when he had<\/p>\n
      gone on various visits abroad. He
\n      has also admitted to have carried
\n      some money to be deposited in the
\n      Bank. The accused has also come<\/p>\n
      forward in the witness box as D.W.13
\n      and has deposed that all the moneys<\/p>\n
      belonged to his wife and when he
\n      came to know about the unaccounted
\n      money at his house, he gave his
\n      piece of    mind to     her. He    has<\/p>\n
      admitted   that   on    one   or   two
\n      occasions   money   was   carried   by
\n      himself to be deposited in the
\n      account in Punjab National Bank and
\n      some money was also deposited on<\/p>\n
      account of some of the members of
\n      the family by P.W.8, S. Rajasankar,
\n      son-in-law. Therefore, under these
\n      circumstances, the respondent has
\n      explained     the    possession     of
\n      unaccounted money.\n<\/p>\n
      16. ….   It  is  true   that  the
\n      prosecution in the present case has<\/p>\n
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\n                         19                     APEAL-270.01<\/p>\n
      tried its best to lead the evidence<\/p>\n
      to   show    that   all    these    moneys
\n      belonged to the accused but when the<\/p>\n
      wife has fully owned the entire money
\n      and the other wealth earned by her by
\n      not showing in the Income-tax return
\n      and she has accepted the whole<\/p>\n
      responsibilities, in that case, it is
\n      very difficult to hold the accused
\n      guilty of the charge. It is very
\n      difficult to segregate that how much
\n      of wealth belonged to the husband and<\/p>\n
      how much belonged to the wife. The
\n      prosecution has not been able to lead<\/p>\n
      evidence to establish that some of
\n      the money could be held in the hands
\n      of the accused. In case of joint<\/p>\n
      possession it is very difficult when
\n      one of the persons accepted the
\n      entire responsibility. The wife of
\n      the accused has not been prosecuted<\/p>\n
      and it is only the husband who has
\n      been    charged    being     the    public<\/p>\n
      servant. In view of the explanation
\n      given by the husband and when it has
\n      been substantiated by the evidence of
\n      the wife, the other witnesses who<\/p>\n
      have been produced on behalf of the
\n      accused coupled with the fact that
\n      the entire money has been treated in
\n      the hands of the wife and she has
\n      owned it and she has been assessed by<\/p>\n
      the Income-tax Department, it will
\n      not be proper to hold the accused
\n      guilty    under   the    prevention     of
\n      Corruption Act as his explanation
\n      appears     to    be    plausible      and
\n      justifiable. The burden is on the
\n      accused      to      offer       plausible
\n      explanation and in the present case,
\n      he has satisfactorily explained that
\n      the whole money which has been<\/p>\n
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\n                                  20                     APEAL-270.01<\/p>\n
            recovered from his house does not<\/p>\n
            belong to him and it belonged to his
\n            wife.      Therefore,      he     has<\/p>\n
            satisfactorily   accounted    for the
\n            recovery of the unaccounted money.
\n            Since the crucial question in this
\n            case was of the possession and the<\/p>\n
            premises in question was jointly
\n            shared by the wife and the husband
\n            and the wife having accepted the
\n            entire recovery at her hand, it will
\n            not be proper to hold husband guilty.\n<\/p>\n
            Therefore, in these circumstances, we
\n            are of the opinion that the view<\/p>\n
            taken by the High Court appears to be
\n            justified and there are no compelling
\n            circumstances to reverse the order of<\/p>\n
            acquittal. Hence, we do not find any
\n            merit in this appeal and the same is
\n            dismissed.\n<\/p>\n
     It may be seen from the above observations that<\/p>\n
     the wife of the public servant in that case had
\n     a     plausible    explanation       about        the         assets<\/p>\n
     standing in her name. Such is not the case of
\n     the appellant’s wife.\n<\/p>\n
     14.        The learned counsel for the appellant<\/p>\n
     submitted that the burden on the appellant can
\n     be    discharged   with     evidence     which          would         be
\n     enough to create a probability. He submitted
\n     that    the   degree   of   burden     of     proof         on      the
\n     appellant is not as high as that on the State.
\n     For this purpose, he relied on a Judgment of
\n     the Supreme Court in Trilok Chand Jain v. State<\/p>\n
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\n                               21                   APEAL-270.01<\/p>\n
     of   Delhi,   reported    in   1977      Cri.L.J.              254<\/span><\/p>\n
     wherein, in para 8, the Court held as under:\n<\/p>\n
           8.     Section     4(1)    of    the
\n          Prevention of Corruption Act reads:\n<\/p>\n
                 “Wherein any trial of an
\n             offence     punishable      under
\n             section 161 or section 165 of<\/p>\n
             the Indian PenaI Code (or of an
\n             offence referred to in clause<\/p>\n
             (a) or clause (b) of sub-\n<\/p>\n
             section (1) of section 5 of
\n             this Act punishable under sub-\n<\/p>\n
             s. (2) thereof, it is proved
\n             that an accused person has
\n             accepted or obtained, or has
\n             agreed to accept or attempt to<\/p>\n
             obtain, for himself or for any
\n             other person, any gratification<\/p>\n
             (other than legal remuneration
\n             or any valuable thing from any
\n             person, it shall be presumed
\n             unless the contrary is proved<\/p>\n
             that he accepted or obtained,
\n             or   agreed    to    accept    or
\n             attempted   to    obtain,    that
\n             gratification or that valuable
\n             thing, as the case may be, as a<\/p>\n
             motive or reward such as is
\n             mentioned in the said section
\n             161 or, as the case may be,
\n             without consideration or for a
\n             consideration which he knows to
\n             be inadequate.”\n<\/p>\n
          From   a   reading  of  the   above
\n          provision it is clear that its
\n          operation, in terms, is confined to<\/p>\n
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\n                         22                     APEAL-270.01<\/p>\n
      any trial of an offence punishable<\/p>\n
      under s. 161 or s. 165, Penal Code
\n      or under clause (a) or (b) of s.\n<\/p>\n
      5(1) read with sub-section (2) of
\n      that section of the Act. If at such
\n      a trial, the prosecution proves that
\n      the accused has accepted or obtained<\/p>\n
      gratification      other    than     legal
\n      remuneration,     the    court   has    to
\n      presume the existence of the further
\n      fact in support of the prosecution
\n      case, viz., that the gratification<\/p>\n
      was accepted or obtained by the
\n      accused as a motive or reward such<\/p>\n
      as mentioned in s. 161, Penal Code.
\n      The   presumption     however,    is   not
\n      absolute.    It    is   rebuttable.    The<\/p>\n
      accused can prove the contrary. The
\n      quantum and the nature of proof
\n      required       to      displace       this
\n      presumption may vary according to<\/p>\n
      the circumstances of each case. Such
\n      proof may partake the shape of<\/p>\n
      defence evidence led by the accused,
\n      or it may consist of circumstances
\n      appearing      in     the     prosecution
\n      evidence itself, as a result of<\/p>\n
      cross-examination or otherwise. But
\n      the degree and the character of the
\n      burden of proof which s. 4(1) casts
\n      on an accused person to rebut the
\n      presumption       raised     thereunder,<\/p>\n
      cannot be equated with the degree
\n      and character of proof which under
\n      s. 101, Evidence Act rests on the
\n      prosecution.       While     the      mere
\n      plausibility of an explanation given
\n      by the accused in his examination
\n      under s. 342, Cr.P.C. may not be
\n      enough, the burden on him to negate
\n      the      presumption       may       stand
\n      discharged, if the effect of the<\/p>\n
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\n                                    23                      APEAL-270.01<\/p>\n
            material brought on the record, in<\/p>\n
            its totality, renders the existence
\n            of the fact presumed, improbable. In<\/p>\n
            other words, the accused may rebut
\n            the presumption by showing a mere
\n            preponderance of probability in his
\n            favour; it is not necessary for him<\/p>\n
            lo establish his case beyond a
\n            reasonable doubt – see Mahesh Prasad
\n            Gupta v. State of Rajasthan, AIR<\/a>
\n            1974 SC 773.\n<\/p>\n
     15.        Evenig  this      Court     had     held         in       N.P.
\n     Lotlikar    v.    C.B.I.     and<\/a>     another,        reported            in
\n     1993 Cri.L.J. 2051, that the accused needs to<\/p>\n
     establish        only     through       preponderance                    of
\n     probabilities that the defence is plausible.\n<\/p>\n
     There can be no doubt about this proposition.
\n     But unfortunately the material produced by the<\/p>\n
     accused     first,      is      restricted         to       his        own
\n     father’s     income       and      properties,           which           is<\/p>\n
     rendered improbable by proof of the fact that
\n     funds flowed, not from his father to him, but
\n     from him to his father. Secondly, while the
\n     appellant was keen to establish his father’s<\/p>\n
     sound financial position, when questioned about
\n     assets in the names of his other relations, the
\n     learned counsel submitted that it was for those
\n     others to explain and that it was not necessary
\n     for the appellant to furnish an explanation. I
\n     have    considered      these        contentions.             As       the
\n     discussion        to    follow         would          show,            the<\/p>\n
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\n                                 24                      APEAL-270.01<\/p>\n
     explanations furnished by the appellants are so<\/p>\n
     unreasonable and unbelievable that the learned<\/p>\n
     trial Judge could not but have rejected them.
\n     The appellant had not even made a case of his
\n     explanation being probable.\n<\/p>\n
     16.      The   learned      PP    submitted            that         the
\n     appellant too could have shown that the source<\/p>\n
     of these investments in the names of Nirmala,<\/p>\n
     Munni, Rani and Gunjan were from the income of
\n     Birchand Ho or Nirmala s father Dharamdas. The<\/p>\n
     learned PP submitted that Nirmala, Rani, Munni
\n     or Gunjan are not shown to have any independent
\n     source of income. The learned counsel for the<\/p>\n
     appellant submitted that it was not for the<\/p>\n
     appellant to show whether these persons had any
\n     independent source of income or not. It would
\n     be for the prosecution to establish that they<\/p>\n
     had no source of income. This contention could
\n     have been accepted but for the fact that the
\n     appellant    took   upon        himself       the        task         of<\/p>\n
     explaining as to how his father was a man of
\n     means   by   submitting     a    written       statement              to
\n     supplement his statement under Section 313 of
\n     Criminal Procedure Code and also by annexing
\n     supporting documents. Thus, if he could explain
\n     the income of his father, there is no reason
\n     why he could not similarly come out with an<\/p>\n
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\n                                          25                        APEAL-270.01<\/p>\n
     explanation about the income of Nirmala, Munni<\/p>\n
     and     Rani,     who        are       admittedly         shown         to       be<\/p>\n
     persons without any income. Therefore, though
\n     ideally the prosecution ought to have shown the
\n     source from which money came for each of these<\/p>\n
     investments,           failure           to     do      so       need          not
\n     necessarily result in rejecting the prosecution
\n     case.\n<\/p>\n
     17.\n<\/p>\n
     not    that<\/p>\n
                   The learned PP submitted that it is
\n                     the     prosecution            has     not       shown         the<\/p>\n
     source from where money for investments came.
\n     He    pointed        out     that        the    appellant s              father
\n     Birsingh Ho, who was supposed to be a man of<\/p>\n
     means and supposed to have funded acquisition<\/p>\n
     of properties by his daughters or daughter-in-
\n     law,     in     fact       did     not        have    money         for        the
\n     purchase        of     a     house        at    Chakradharpur.                   He<\/p>\n
     pointed out that the appellant s father was in
\n     fact working in a biri factory on meagre wages
\n     as could be seen from the evidence of PW-29 PI<\/p>\n
     Shinde. PW-30 Raman Tyagi had also stated that
\n     Birsingh Ho did not have much of income from
\n     cultivation or other activities. The learned PP
\n     also drew my attention to the evidence of PW-27
\n     Sunil     Kumar        who       was     working        for       the        Biri
\n     Trading Company where the appellant s father
\n     was employed. PW-27 Sunil Kumar had proved the<\/p>\n
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\n                                               26                         APEAL-270.01<\/p>\n
     statement of wages paid to Birsingh Ho from<\/p>\n
     time to time, which is at Exhibit-130, which<\/p>\n
     would       show    that           the        monthly       wages          paid        to
\n     Birsingh Ho ranged between `98.50 in 1970 to
\n     `442\/-       in    1987.       Therefore,              according             to      the<\/p>\n
     learned PP, Birsingh Ho could not at all have
\n     been in a position to finance the investments
\n     by his daughters or daughter-in-law.\n<\/p>\n
     18.\n<\/p>\n
     had    an<\/p>\n
                  The learned counsel for the appellant
\n                  objection             to     receipt          of      evidence            of<\/p>\n
     PW-30    Raman       Tyagi.          According             to      the      learned
\n     counsel,          just    as        PW-29        PI     Shinde           had       been
\n     authorised               by         order             dated             2-11-1987<\/p>\n
     (Exhibit-140) to investigate into the crime in<\/p>\n
     exercise of powers under Section 5-A(1) of the
\n     PC    Act,    1947,           similar          authorisation               was       not
\n     issued       in    the        name       of     Tyagi.        Therefore,               he<\/p>\n
     submitted that the entire investigation carried
\n     out     by    Tyagi           in    Jharkhand,              which         includes
\n     evidence          collected          about        the         properties               of<\/p>\n
     Birsingh Ho and his income would have to be
\n     excluded          from    consideration.                   The       learned           PP
\n     submitted, and rightly in my view, that the
\n     order at Exhibit-140 authorised PI Shinde to
\n     conduct investigation with the assistance of
\n     other officers as well. Therefore, it is not
\n     that services of Raman Tyagi could not have<\/p>\n
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\n                                     27                        APEAL-270.01<\/p>\n
     been employed for the purpose of carrying out<\/p>\n
     investigation.         The     learned       counsel           for        the<\/p>\n
     appellant relied on a Judgment of the Supreme
\n     Court      in        State      Inspector             of          Police,
\n     Vishakhapatnam          v.      Surya        Sankaram               Karri,<\/p>\n
     reported in 2007 All MR (Cri.) 555 (SC) on the
\n     question     of      unauthorised          investigation.                   He
\n     submitted       that    Tyagi       had     no       authority              to<\/p>\n
     investigate into the offences since there was<\/p>\n
     no order issued in the name of Tyagi. It has,
\n     however, to be noticed that the Court observed<\/p>\n
     in para 21 of its Judgment as under:\n<\/p>\n
           21.    It is true that only on the<\/p>\n
          basis of the illegal investigation a
\n          proceeding may not be quashed unless<\/p>\n
          miscarriage of justice is shown, but,
\n          in this case, as we have noticed
\n          herein before, the respondent had
\n          suffered miscarriage of justice as<\/p>\n
          the investigation made by P.W.41 was
\n          not fair.\n<\/p><\/blockquote>\n
     Therefore, the illegality of investigation per<\/p>\n
     se would be unhelpful. It is not shown that the
\n     investigation         carried       out    by    Tyagi          was       not
\n     fair. In any case, Raman Tyagi stated in his
\n     deposition      at     Exhibit-145         that       he      had       been
\n     asked by the S.P. Shri A.L. Verma to gather
\n     evidence about the income derived by the father
\n     of   the    accused      and     in       pursuance          of       those<\/p>\n
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\n                                    28                         APEAL-270.01<\/p>\n
     directions he had gone to Chakradharpur. Though<\/p>\n
     ideally Verma could have passed an order in the<\/p>\n
     name of Tyagi as well just as he had passed the
\n     order in the name of PI Shinde, the absence of
\n     such order on record in itself would not make<\/p>\n
     any material collected by Tyagi inadmissible in
\n     evidence. In any case, the evidence of PW-30
\n     Tyagi is negative, in the sense that he states<\/p>\n
     that Birsingh Ho did not own properties worth<\/p>\n
     biri   factory<\/p>\n
     the name. The evidence about income from the
\n                        has   been       tendered          by      PW-29         PI<\/p>\n
     Shinde himself.\n<\/p>\n
     19.         The learned PP further submitted that<\/p>\n
     if Birsingh Ho did have substantial income to<\/p>\n
     finance     the   investments        of     his       daughters             in
\n     Mumbai, there would be no question of monies
\n     flowing from Mumbai, where the appellant was<\/p>\n
     posted,     to    Jaraikela        where     Birsingh             Ho      was
\n     residing. He pointed out that consideration for
\n     purchase     of    a   house       at     Chakradharpur                 from<\/p>\n
     Akundi Sundaramma and loan advanced to her, in
\n     fact went from Mumbai to Chakradharpur by a
\n     circuitous route which has been duly traced by
\n     the prosection. Akundi Sundaramma was paid a
\n     sum    of   `49,500\/-    by        cheque      dated         13-3-1985
\n     which is marked as Exhibit-F in the evidence of
\n     PW-28 Sujit Moitra, the Deputy Manager of State<\/p>\n
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\n                                       29                         APEAL-270.01<\/p>\n
     Bank of India, Jaraikela at the relevant time.\n<\/p>\n
     On    13-3-1985          and    14-3-1985,             Nirmala,              the<\/p>\n
     appellant s         wife,      had    issued       two       cheques           in
\n     favour of Akundi Sundaramma for `49,500\/- and
\n     `50,500\/-       respectively.              They     were        drawn          on<\/p>\n
     Nirmala s      account         No.9897       from       Chakradharpur
\n     Branch.      The      amount     came        from       a     draft          for
\n     `1,00,000\/- issued in the name of Birsingh Ho<\/p>\n
     and Nirmala Jonko on 22-2-1985 from the State<\/p>\n
     Bank of India, Fort, Bombay Branch, drawn on
\n     State Bank of India Jaraikela Branch. This was<\/p>\n
     credited     to      account         No.9897       from        where         the
\n     consideration went for the purchase of property
\n     of    Akundi       Sundaramma.         The        learned         PP       also<\/p>\n
     pointed      out      that      it     is     not        an       isolated<\/p>\n
     transaction         of   money       flowing       from        Mumbai          to
\n     Jharkhand.       He      pointed      out    that        on      the       same
\n     date,    that       is    on    22-2-1985          another           sum       of<\/p>\n
     `20,000\/- was remitted by drawing a draft in
\n     the   name     of     Birsingh        Ho    and     Nirmala           Jonko,
\n     payable at Jaraikela Branch of State Bank of<\/p>\n
     India. This too was issued by State Bank of
\n     India,    Fort      Banch,      Mumbai.        On      the       same        day
\n     another draft in the name of Nirmala Jonko and
\n     Munni Jonko for `52,500\/- was issued by the
\n     State Bank of India, Fort-Bombay, payable at
\n     State     Bank      of    India,       Jaraikela.             All        these
\n     drafts have been identified in the course of<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span>
\n                                           30                         APEAL-270.01<\/p>\n
     evidence of PW-28 Sujit Moitra. The draft for<\/p>\n
     `52,500\/- was credited in Nirmala and Munni s<\/p>\n
     account       on    4-3-1985          vide      extract          of     account
\n     Exhibit-132. The learned PP, therefore, rightly
\n     submitted that if Birsingh Ho was a man of<\/p>\n
     means, amounts should have been remitted by him
\n     to     his    son        at    Mumbai        rather         than        amounts
\n     flowing from Mumbai for purchase of property at<\/p>\n
     Chakradharpur.                Curiously           remittances                  from
\n     Mumbai       have
\n                         ig  been     made      in
\n     which, in each case, includes the appellant s
\n                                                       favour         of     persons<\/p>\n
     wife.        Therefore,          the       contention              that          the
\n     persons in whose names the assets were acquired
\n     had     their       own        source        of      income           or       that<\/p>\n
     acquisition             of    assets       was      financed            by       the<\/p>\n
     appellant s             father       Birsingh         Ho      was       rightly
\n     rejected by the learned trial Judge as an eye-
\n     wash.\n<\/p>\n
     20.           It would be interesting to note as to
\n     what     the       appellant          states         in       his       written<\/p>\n
     statement          to    supplement          his      statement              under
\n     Section       313       of     Criminal         Procedure            Code.         He
\n     stated that his father was the richest person
\n     from the village and therefore could educate
\n     all     his    children.             He    has      filed         on       record
\n     certificates from Anchal Adhikari, Bandgaon and
\n     Sarpanchs           of        Gram        Panchayats,              Otar          and<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span>
\n                                        31                        APEAL-270.01<\/p>\n
     Buddigoda to support his claim about the status<\/p>\n
     of     his    father.       The        certificate            of      Anchal<\/p>\n
     Adhikari, Bandgaon shows that the appellant s
\n     father       owned    land     worth      `90,000\/-,               possibly
\n     3.12    hectares       in    area.       The      certificates                 of<\/p>\n
     Sarpanchs       of    the      two      Gram       Panchayats                are
\n     similarly worded and both state that Birsingh
\n     Ho had about 8 to 10 acres of cultivable land<\/p>\n
     from which he could save at least 80 quintals
\n     of    paddy<\/p>\n
                    after     the      household
\n     certificates show that one puda of paddy is
\n                                                           expenses.              The<\/p>\n
     about 12 to 15 quintals and the yield was about
\n     15 pudas, that is about 225 quintals of paddy.
\n     It is not known whether 8 acres of land or 3<\/p>\n
     hectares of land could yield 225 quintals of<\/p>\n
     paddy per annum.\n<\/p>\n
     21.          Considering          all     this,         the        evidence<\/p>\n
     tendered about investments was rightly accepted
\n     by the learned trial Judge, who had in fact
\n     given an allowance to the appellant by adding<\/p>\n
     to    his    salary    income.          The    income          which         the
\n     learned       Judge     took       into       consideration                  was
\n     `2,69,688\/-      against          `1,40,188\/-           from        salary.
\n     The learned Judge had also increased the likely
\n     savings to `2,44,688\/- from `1,58,188\/- shown
\n     in the charge. Even then the assets were found
\n     to     be    disproportionate             to      the        extent            of<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span>
\n                                       32                       APEAL-270.01<\/p>\n
     `3,87,570\/-.\n<\/p>\n
     22.           The learned PP submitted that though
\n     two cars are shown to have been purchased in
\n     the names of the appellant’s sister and wife by<\/p>\n
     taking loan, since they had no income, it is
\n     not clear as to how the loan was to be repaid.
\n     The     appellant         had    stated          in    his        written<\/p>\n
     statement at Exhibit-152, in para 4, that the<\/p>\n
     amounts standing in the name of his wife in the
\n     Nepean Sea Road Branch of State Bank of India<\/p>\n
     were amounts received by her as gifts from her
\n     parents and the appellant’s father from time to
\n     time, and therefore were stridhan. He submitted<\/p>\n
     that     as     per    the      traditions        of      the        tribal<\/p>\n
     society of the accused, the accused was getting
\n     25% agricultural produce of his family and that
\n     he was getting grain and cereal from his native<\/p>\n
     place. Therefore, he had claimed that he could
\n     save 70% of his income. The learned Judge too
\n     had     taken      only    30%    of       the    salary          as       the<\/p>\n
     household expenditure. Therefore, this argument
\n     does not take the appellant s case further.\n<\/p>\n
     23.           On    the   question         of    disproportionate
\n     assets, the learned counsel for the appellant
\n     referred to a Judgment of the Supreme Court in
\n     State     of       Maharashtra        v.    Pollonji          Darabshaw<\/a><\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span>
\n                                33                     APEAL-270.01<\/p>\n
     Daruwalla, reported in 1988 Cri.L.J. 183 = AIR<\/p>\n
     1988 SC 88. The observations of the Court in<\/p>\n
     para    13   of   the   Judgment    may        be      usefully
\n     reproduced as under:\n<\/p>\n
             13.     However,     these   errors   of
\n            approach    and    of   assumption    and
\n            inference    in   the    judgment   under
\n            appeal    do    not,    by   themselves,<\/p>\n
            detract from the conclusion reached
\n            by the High Court that, in the<\/p>\n
            ultimate analysis, the prosecution
\n            has not established the case against
\n            respondent beyond reasonable doubt.\n<\/p><\/blockquote>\n
                      The discussion of and the
\n            conclusion reached on the contents<\/p>\n
            and parts (c) to (e) by the High
\n            Court    tends   to   show    that   the<\/p>\n
            disproportion     of  the    assets   in
\n            relation to the known source of
\n            income is such that respondent should
\n            be given the benefit of doubt though<\/p>\n
            however, on a consideration of the
\n            matter, if cannot be said that there
\n            is   no    disproportion   or   even   a
\n            sizeable disproportion. For instance,
\n            Shri    Bhasme    is   right    in   his<\/p>\n
            contention that the acceptance by the
\n            High Court of the case of the alleged
\n            gift from the mother is wholly
\n            unsupported by the evidence. There
\n            are also other possible errors in the
\n            calculations in regard to point(e).
\n            The finding becomes inescapable that
\n            the assets were in excess on the
\n            known sources of income.\n<\/p><\/blockquote>\n
                                        ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span><\/p>\n
                                  34                          APEAL-270.01<\/p>\n
                     But on the question whether<\/p>\n
            the extent of the disproportion is
\n            such as to justify a conviction for<\/p>\n
            criminal misconduct under Section
\n            5(1)(e) read with Section 5(2), we
\n            think,   we    should   not,   in  the
\n            circumstances of the ease, interfere<\/p>\n
            with the verdict of the High Court
\n            as, in our view, the difference would
\n            be considerably reduced in the light
\n            of the factors pointed out by the
\n            High Court. A somewhat liberal view<\/p>\n
            requires    to   be   taken   of  what
\n            proportion of assets in excess of the<\/p>\n
            known sources of income constitutes
\n            “disproportion”     for   purpose   of
\n            Section 5(1)(e) of the Act.\n<\/p><\/blockquote>\n
     There can be no doubt about the proposition<\/p>\n
     that merely because the assets are in excess of<\/p>\n
     known sources of income, that in itself cannot
\n     amount to criminal misconduct, and unless the
\n     assets are shown to be disproportionate, the<\/p>\n
     accused s conviction should not follow. In the
\n     case at hand, the disproportion held as proved
\n     by the learned Judge is significant.\n<\/p>\n
     24.        The learned counsel for the appellant
\n     next submitted that the prosecution must fail
\n     because     it   is   not   shown     that          sanction             for
\n     prosecution was accorded by authority competent
\n     to    do   so.   He   relied     on   a      Judgment            of      the
\n     Supreme Court in Mohd. Iqbal Ahmed v. State of
\n     Andhra Pradesh,<\/a> reported in 1979 Cri.L.J. Page<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span>
\n                                    35                        APEAL-270.01<\/p>\n
     633   =   AIR    1979    SC   677    on      the       question            of<\/p>\n
     sanction to prosecute. The observations of the<\/p>\n
     Supreme Court in para 3 of the Judgment may be
\n     usefully reproduced as under:\n<\/p>\n
            ….   It   is    incumbent   on   the
\n           prosecution to prove that a valid
\n           sanction has been granted by the
\n           Sanctioning Authority after it was<\/p>\n
           satisfied that a case for sanction
\n           has been made out constituting the<\/p>\n
           offence. This should be done in two
\n           ways; either (1) by producing the
\n           original    sanction    which    itself<\/p>\n
           contains the facts constituting the
\n           offence    and     the    grounds    of
\n           satisfaction and (2) by adducing
\n           evidence aliunde to show that the<\/p>\n
           facts placed before the Sanctioning
\n           Authority    and    the    satisfaction<\/p>\n
           arrived at by it. It is well settled
\n           that any case instituted without a
\n           proper sanction must fail because
\n           this being a manifest difficult (sic-\n<\/p>\n
           defect)   in   the   prosecution,   the
\n           entire proceedings are rendered void
\n           ab initio.\n<\/p>\n
     25.        In State of T.N. v. M.M. Rajendran,<\/a>
\n     reported    in    1998    SCC      (Cri.)      1000,         on      which
\n     reliance was placed by the learned counsel for
\n     the   appellant,        the   Supreme       Court          was       again
\n     considering the question of a valid sanction
\n     and observed as under:\n<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span><\/p>\n
                        36                    APEAL-270.01<\/p>\n
       …. The High Court, has come to<\/p>\n
      the finding that all the relevant
\n      materials including the statements<\/p>\n
      recorded by the Investigating Officer
\n      had not been placed for consideration
\n      by the City Commissioner of Police,
\n      Madras because only a report of the<\/p>\n
      Vigilance   Department    was    placed
\n      before him. The High Court also came
\n      to the finding that although the
\n      Personal   Assistant   to   the    City
\n      Commissioner of Police, Madras has<\/p>\n
      deposed in the case to substantiate
\n      that proper sanction was accorded by<\/p>\n
      the City Commissioner of Police, the
\n      witness has also stated that the
\n      report even though a detailed one was<\/p>\n
      placed before the Commissioner by him
\n      and on consideration of which the
\n      Commissioner of Police had accorded
\n      the sanction, it appears to us that<\/p>\n
      from such deposition, if cannot be
\n      held   conclusively   that    all   the<\/p>\n
      relevant   materials   including    the
\n      statements     recorded     by      the
\n      Investigating Officer had been placed
\n      before the Commissioner of Police. It<\/p>\n
      appears that the Commissioner of
\n      Police had occasion to consider a
\n      report of the Vigilance Department.
\n      Even if such report is a detailed
\n      one, such report cannot be held to be<\/p>\n
      the complete records required to be
\n      considered     for     sanction      on
\n      application of mind to the relevant
\n      materials on records. Therefore, it
\n      cannot be held that the view taken by
\n      the High Court that there was no
\n      proper sanction in the instant case
\n      is without any basis. ….\n<\/p>\n
                               ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span><\/p>\n
                               37                        APEAL-270.01<\/p>\n
     26.     The learned counsel for the appellant<\/p>\n
     drew my attention to the evidence of PW-24 Ram<\/p>\n
     Raj Bharti who was at the relevant time serving
\n     in the Ministry of Finance. The sanction at
\n     Exhibit-120      was   signed    by        him        as        Under<\/p>\n
     Secretary   to   Government     of    India.          He      stated
\n     that the President is the authority to sanction
\n     prosecution in such cases. But the officers of<\/p>\n
     the level of Under Secretary are authorised to<\/p>\n
     pass such orders. He stated that all the papers
\n     concerning the case of the appellant were sent<\/p>\n
     by CBI to him. He sent those papers to the
\n     Minister with his short note and received the
\n     papers back after the Minister’s approval. He<\/p>\n
     states that after going through the papers he<\/p>\n
     was satisfied that the officer had committed
\n     offence and accordingly he accorded sanction
\n     for prosecution. In cross-examination he stated<\/p>\n
     that before the papers came to him, they were
\n     initially sent to the concerned Ministry but
\n     could not tell the date on which they were sent<\/p>\n
     to the Ministry, or the date when the papers
\n     were considered by the Ministry and then sent
\n     to him. He denied the suggestion that while
\n     according sanction he took report of the CBI to
\n     be truthful, implying that he had applied his
\n     mind to the material.\n<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span><\/p>\n
                                    38                        APEAL-270.01<\/p>\n
     27.          The learned counsel for the appellant<\/p>\n
     submitted that under the Rules of Business of<\/p>\n
     Government of India, the Department, which is
\n     the    cadre    controlling        authority,            and       not       a
\n     particular officer of that Department, is the<\/p>\n
     authority competent to accord sanction. There
\n     could    be    no    doubt   that     Department             would         be
\n     sanctioning          prosecution.          But          since            the<\/p>\n
     Department          functions       through           individuals,
\n     approval       by
\n                      ig   the    Minister
\n     Department should be enough to indicate that
\n                                                    who       heads           the<\/p>\n
     the Department had authorised the prosecution
\n     of    the      appellant.       The      hierarchy             in        the
\n     Department obtained by the appellant by filing<\/p>\n
     a    query    under    the   Right       to    Information               Act<\/p>\n
     which he has made available for my perusal,
\n     does not show that the Under Secretary was not
\n     authorised to issue sanction order. Therefore,<\/p>\n
     reliance on the Judgments of the Supreme Court
\n     in the State of Rajasthan v. Dr. A.K. Datta,<\/a>
\n     reported in AIR 1981 SC 20 and Parmanand Dass<\/p>\n
     v. State of Andhra Pradesh,<\/a> reported in 1978
\n     Cri.L.J. 1802 = AIR 1978 SC 1745, which deal
\n     with the factual question as to who was the
\n     sanctioning         authority       in        those        cases           is
\n     unhelpful. For the same reason, it may not be
\n     necessary to discuss the Judgment of this Court
\n     in Pravin Kumar v. The State, reported in 2005<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span>
\n                                    39                         APEAL-270.01<\/p>\n
     Cri.L.J. 2714. There is nothing to show that<\/p>\n
     there     is   any     defect      in     the        sanction             and<\/p>\n
     therefore the objections on this count have to
\n     be rejected.\n<\/p>\n
     28.        The    learned         counsel       also         submitted
\n     that the sentence inflicted upon the appellant
\n     is    unduly     harsh      and    since       it      pertains             to<\/p>\n
     incident 24 years ago, at this point of time<\/p>\n
     maintaining that sentence would be unjust. The
\n     learned trial Judge has considered this aspect<\/p>\n
     as well in para 24 of his Judgment and has
\n     rightly    held      that    delays       caused        due       to      the
\n     system    cannot      work    to    the     advantage             of      the<\/p>\n
     appellant who should have been served with just<\/p>\n
     dessert long ago.\n<\/p>\n
     29.        In view of the above, the appeal is<\/p>\n
     dismissed. However, the order convicting the
\n     appellant is modified and the conviction of the
\n     appellant      for    the     offence        punishable               under<\/p>\n
     Section 13(2) r\/w Section 13(1)(e) of the PC
\n     Act, 1988 is altered to that for the offence
\n     punishable under Section 5(2) r\/w Section 5(1)\n<\/p>\n
     (e) of the PC Act, 1947. The appellant shall
\n     surrender to his bail within a period of four
\n     weeks to suffer his sentence and if he does
\n     not, the learned trial Judge shall have him<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span>
\n                           40                    APEAL-270.01<\/p>\n
     arrested and committed to prison.\n<\/p>\n
                                         Sd\/-\n<\/p>\n
                               (R.C. CHAVAN, J.)<\/p>\n
                                  ::: Downloaded on – 09\/06\/2013 17:57:04 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Rajendra Jonko vs The Superintendent Of on 25 November, 2011 Bench: R. C. Chavan 1 APEAL-270.01 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL APPEAL NO.270 OF 2001 Rajendra Jonko, residing at Flat No.101, 17\/D MHADA Customs Colony, Adi S. Marg, Powai, Mumbai-400 076. ig …. Appellant – Versus […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-219826","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRajendra Jonko vs The Superintendent Of on 25 November, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajendra-jonko-vs-the-superintendent-of-on-25-november-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajendra Jonko vs The Superintendent Of on 25 November, 2011 - 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