Subhasis Basu vs The State

Ishan Chandra Das, J.—1. This criminal appeal has been directed, assailing the judgment and order of conviction dated 29th day of August 2012 passed by learned Special Judge, CBI Court, Alipore, 24 Parganas (South), in Special Case No. 1 of 2000 wherein the appellant was held guilty of the offence punishable under Section 5 (1) (e) read with section 5 (2) of the Prevention of Corruption Act, 1947.

Facts of the case, in brief, as it emerges from the statement given in the First Information Report (Exhibit 41) at Page 1 of the Paper Book dated 20th day of February, 1987 is the following:--

"The appellant herein joined the Income Tax Department as an Inspector on the 22nd day of September, 1972 and his scale of pay was Rs. 210 - 480. In 1975 his pay was fixed in the scale of pay of Rs. 425-800. On 10th day of March, 1982, the appellant was promoted to the rank of Income Tax Officer and the scale of pay was Rs. 650-1200. Subsequently, his basic pay was enhanced to Rs. 2140/- per month in the scale of pay of Rs. 2000 - 3500/-, at the relevant point of time i.e. on 20th day of February, 1987 when the crime was reported and investigation was taken up, report was submitted against the appellant alleging that during the period from September, 1972 (dated 22nd day of September, 1972) to December, 1986, he had accumulated a sum of Rs. 3,74,289.94/- which was disproportionate to his known sources of income and the appellant was brought before the Court concerned to answer the said charge of committing the offence, punishable under Section 5 (1) (e) read with section 5 (2) of the Act."

At the commencement of trial, the appellant obviously pleaded "not guilty" to the said charge and he claimed to be tried.

Learned Trial Court in course of long lasting trial examined 39 witnesses altogether and after conclusion of trial held this appellant guilty of the offence punishable under Section 5 (1) (e) read with Section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced him to suffer rigorous imprisonment for one year and to pay a fine Rs. 10,000/- in default to suffer rigorous imprisonment for three months more.

Assailing the said judgment and order of conviction dated 28th day of September, 2012, this appeal has been preferred, mainly on the following grounds:--

"1) The judgment, order of conviction and sentence passed against the appellant under Section 5 (1) (e) read with Section 5 (2) of the Prevention of Corruption Act, 1947 were bad in law, illegal, perverse and not on the basis of the materials available on record.

2) The ingredients of the offence punishable under Section 5 (1) (e) read with Section 5 (2) of the Act have not been proved.

3) The trial Court did not consider the improbability of the allegations made against the appellant.

4) Learned Court below failed to appreciate the evidentiary value of the evidence, both oral and documentary, as produced before him during trial.

5) The calculation made by learned Trial Court with regard to so called disproportionate assets of the appellant was a hypothetical one and not based on the facts established during trial.

6) The income from other known sources like gift from the near relations of the wife of the appellant was not taken into account during calculation of such so called assets, allegedly disproportionate to his known sources of income.

7) The accrued interest of the amount deposited during the check period was not calculated as sources of income of the appellant.

8) Learned Court failed to assess the evidence on record and overlooked the contradictions amongst the prosecution witnesses.

9) Learned Court below failed to appreciate the explanation given by the appellant against the so-called incriminating situation which was available against him while he was examined in terms of Section 313 of the Code of Criminal Procedure.

10) The very basis of the case was illegal and the case was started at the instance of such an officer who was not authorized by law to initiate such proceeding and it was not duly sanctioned by the appropriate authority."

The only point for consideration raised in this appeal is -whether learned Trial Court was justified in holding the appellant guilty of the offence as complained of and punishing him accordingly.

A public servant shall be held guilty of the offence punishable under Section 5 (1) (e) read with Section 5 (2) of the Act (Act 2 of 1947), if it is established that the public servant committed criminal misconduct, if he or any person on his behalf, been in his possession of or has at any time 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.

The Prevention of Corruption Act, 1947 (Act 2 of 1947) was codified with effect from 11th day of March, 1947 (now repealed by Act 49 of 1988), for more effective Prevention of Bribery and Corruption of public servants.

In the case in hand, the appellant was arraigned before learned Trial Court to answer the charge of accumulation of assets collected by him during the period from 22.9.72 to 24.2.87 i.e. 14 years and 5 months. The impugned judgment reveals that the appellant and his family possessed assets worth Rs. 1,96,005.58/- which was disproportionate to his known sources of income, but the appellant could not satisfactorily account for the same. Mr. Sudipta Maitra, learned Senior Counsel appearing on behalf of the appellant, in course of his argument assailed the judgment of learned Trial Court and submitted that the learned Court below was not justified in holding the appellant guilty of the offence, as complained of. At the very outset of his argument, he pointed out that the total assets of the appellant and his family were assessed worth Rs. 5,38,287/- out of which the assets worth Rs. 1,96,005.58/- were accumulated in almost 15 years. Criticizing the findings of learned Trial Court in this regard, he confidently urged that learned Trial Court came to the conclusion that the appellant was possessing valuable assets, disproportionate to his known sources of income purely on subjective basis and his finding was arbitrary - he opined. To advance his argument, he urged that there was no allegation of taking bribery against his client and with reference to the oral testimony of one Mukul Banerjee (PW-6), a Senior Branch Manager, Bank of Baroda, Ultadanga Branch, he submitted that the said witnesses proved 5 Fixed Deposit Receipts (Exhibit-4 Series), which were in the joint account of the appellant and his wife Sima Basu (PW-20). Drawing my further attention to the oral testimony of one Bidyut Sengupta (PW-7), a Manager of the UBI, Subodh Mallick Square Branch, he was also critical in submitting that the factum of re-investment was taken into account for the purpose of blaming his client for an investment twice. With reference to the oral testimony of one Bishnupada Midya (PW-31), he further submitted that this witness while examining himself before learned Court below failed to prove two National Savings Certificates but all the 4 National Savings Certificates were taken into account of his client and calculated the same as assets in his possession. Drawing my attention to the oral testimony of one Tarachand Murmu (PW-32), Mr. Maitra, learned Senior Counsel appearing for the appellant submitted that there were 11 National Savings Certificates worth Rs. 1000/- to 1,10,000/- amounting Rs. 62,000/- on different dates which cannot be termed as ''disproportionate assets'' in the strict sense of the term. He also urged that those certificates not being proved by the said witness (PW-32) according to law, it should not be taken into account for the purpose of conviction of his client treating the same as ''disproportionate assets'' within the meaning of "the Prevention of Corruption Act, 1947."

Relying on a decision of the Hon'ble Patna High Court in Mostt. Rajwati Devi and another v. The Joint Director Consolidation, Govt. of Bihar, reported in , A.I.R. 1989 Patna 66, he submitted that it is well settled principle of law that the documents upon which reliance is sought to be placed must be brought on record of the case legally since the documents do not prove themselves. Accordingly he opined that the National Savings Certificates marked Exhibit - 48 (Collectively), as not being proved following the legal procedure, could not be and should not be taken into consideration for registering conviction of his client.

To further his argument, learned Counsel for the appellant relied on a decision of the Hon'ble Apex Court in Ashok Tshering Bhutia v. State of Sikkim reported in , (2011) 2 SCC (cri) 258, where it was held - where the check period is very long, it may be possible that a small overestimation of the appellants expenditure would have multiplied and could easily explain any amount. He also pointed out that where the income was merely a paltry sum which any Govt. employee could save every year, he cannot be convicted for want of any cogent explanation for accumulation of such amount. Relying on the said decision of the Hon'ble Apex Court in Ashok Tshering Bhutia (supra) he also urged and opined that the appellant could not be fastened with criminal liability for non-compliance of any service rule regarding disclosure of assets.

Mr. Maitra, learned Senior Counsel in course of his argument also pointed out with reference to the oral testimony of one Joyasis Basu (PW-11), younger brother of the appellant, and submitted that at one point of time within the check period, he (PW-11) was living with the appellant and contributed a considerable amount to the joint family fund. From a plain reading of the oral testimony of the said witness (PW- 11), it appears that the appellant was living in the joint mess at Baguihati. It is also evident from his (PW-11) statement that he used to contribute a sum of Rs. 500 per month for the household expenses from 1971-1976, Rs. 700 per month from 1977-1980 and it was enhanced to Rs. 1000 per month from 1982-1987. With reference to the statement of the said witness learned Counsel for the appellant brought it to my notice some relevant facts and urged that learned Trial Court while dealing with the allegations against the present appellant with regard to the accumulation of disproportionate assets was not justified at all for convicting his client. He also pointed out that the father of the appellant was a Chartered Accountant by profession and he had a firm under the name and style "P. Basu & Co". and the same was operative during his lifetime. It was also submitted that the father of the appellant left his residential house, a part of which was let out to a tenant, Bijoy Chakraborty, from whom the appellant and his family would earn a sum of Rs. 500/600 per month at the material time.

From a careful scrutiny of the oral testimony of Sima Basu (PW-20), the wife of the appellant, it is transparent that she made a gift in respect of her share in the immovable property to her two brothers and she got a sum of Rs. 12,000/- in cash and other valuable articles like TV, Freeze etc. It is also manifested from her cross-examination that she used to get a sum of Rs. 800/900 from her mother, who was a pension holder in quick succession at the material time and this witness (PW-20) who was none but the wife of the appellant was an employee of the CMDA and would earn Rs. 700-900 per month approximately.

Drawing my further attention to the oral testimony of one M.C. Vimal (PW-13), Mr. Maitra, learned Senior Counsel appearing for the appellant further urged with a confident tune that the evidence of the said witness, who was none but the employer of Joyasis Basu, the younger brother of the appellant herein, simply falsified the allegations against this appellant. He also drew my attention to the oral testimony of one Debajit Guha, the then Assistant Manager of the Unit Trust of India, Eastern Zonal Office at Calcutta (PW-14) and pointed out that the dividend was not taken into consideration by learned Trial Court though these were the income of appellant. He was critical in submitting that the prosecuting agency took such vengeful attitude against his client, to such extent that even a hawker of a newspaper (PW-25) and the dance teacher (PW-28) of his daughter were not spared from examination as witness to show the family expenses of the appellant and to prove that the assets accumulated by the appellant were disproportionate to his known sources of income.

In this context, he brought it to my notice, the list of household articles containing three pages (Exhibit-40) prepared by one Soumendranath Bhattacharya (PW-37), which included the moveable household articles found in the residence of the appellant in course of inventory dated 24th day of February, 1987 and emphatically submitted that the said list of household articles clearly indicated that those articles are available in almost any middle class or lower middle class family out of which some furniture were acquired by the parents of the appellant or by the parents of his wife, either by inheritance, gift or otherwise.

Mr. Ashraf Ali, learned Counsel appearing for the Respondent/CBI laid emphasis on the arithmetic calculation as reflected in the impugned judgment and opined that learned Trial Court was correct in his approach as he found the appellant guilty of accumulating the assets disproportionate to his known sources of income, as referred to in page 8 of the impugned judgment. Clarifying the provisions of law in the matter he submitted that the total income of the earning members of the family were Rs. 21,795/- net, but his total savings were Rs. 2,41,955/- which can be treated as disproportionate assets accumulated during the check period.

Criticizing the argument with regard to observation of legal formalities for prosecuting the appellant as advanced by ld. Counsel appearing for the appellant, learned counsel for the respondent herein relied on a decision of the Hon'ble Apex Court in State of Madhya Pradesh & Ors. v. Ram Singh (reported in , (2000) 5 SCC 88) and urged that a meritorious case should not be rejected on the ground of defective investigation unless it caused miscarriage of justice. In this context, he submitted that the Prevention of Corruption Act was designed to protect public interest and to curb illegal activities of the public servants particularly with regard to prevent bribery and corruption amongst them. Further pointing out the issue of formal proof of the document like National Savings Certificates, Pass Book, Fixed Deposit Certificates, Term Deposits etc., he drew my attention to an application filed on behalf of the appellant before learned Court below on 3rd day of March, 1990 (which is at pages 118-121 in the file of Exhibited documents) and submitted that the appellant admitted those certificates to be his own and the argument to prove those documents according to law did not arise at all. To conclude his argument he opined that the instant appeal should be dismissed being devoid of merit as the appellant failed to justify his acquiring of those assets, referred to earlier, the same being disproportionate to his known sources of income.

Admittedly the appellant was an Inspector of Income Tax Department and he was promoted as Income Tax Officer subsequently. He earned a considerable amount from his salary and as per statement of the CBI it would be amounting Rs. 3,31,047.50/-. It is also evident that the wife and the younger brother of the appellant were service holders as well as earning members during the check period. The materials on record clearly pointed out that the father of the appellant was a Chartered Accountant by profession having his Chartered Firm under the Name & Style P. Basu & Co. which was in operation during his life time and that was dissolved after his death (as reflected from the oral testimony of PW-11, Joyasis Basu). This witness (PW-11) was declared hostile by the prosecution but his evidence cannot be thrown away simply because he was a relation of the convict/appellant herein and in view of the decision of the Hon'ble Apex Court in State of U.P. v. Ramesh Prasad Misra and another reported in , AIR 1996 Supreme Court 2776, the evidence of the hostile witness can be taken into consideration for deciding the merit of the case, it may be helpful for the prosecution or the defence as the case may be. The verdict of the Hon'ble Apex Court in State of U.P. v. Ramesh Prasad Misra and another (supra) as a guiding principle in dealing with the evidence of a hostile witness is quoted below:--

"It is equally settled law that the evidence of hostile witness should not be totally rejected if spoken in favour of the prosecution or the accused but it may be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted."

Almost identical view was expressed by the Hon'ble Apex Court in Rajaram v. State of Rajasthan, reported in (2005) 5 SCC 272 where it was held that the defence can rely upon the evidence of prosecution witness, it is immaterial whether such witness was declared hostile or not and it would bind the prosecution.

From the examination in chief of the said witness (PW-11), it is evident that he being an employee of a Chartered Accountant's Firm used to earn a considerable amount and regularly contributed to the joint family fund where the appellant was the "karta" and it is evident from the oral testimony of PW-13, the employer of Joyasis Basu (PW-11) that his income was not limited to his salary rather he had other sources of income. Said witness (PW-11) also clarified the financial position of the family by stating that he would collect rent from the tenanted premises, left by his father and it can safely be held that such amount was included in the joint family fund. It is observed earlier that the assets/furniture and other moveable goods as found in the residence of the appellant and his brother etc. were so simple and less costly that those are found in almost every house of a lower middle class family. Only one color Television worth rupees 10,000/- (approximately) is the most valuable article, found in the list of household articles, and that clearly established that the appellant or his family members were habituated in savings, not in the habit of spending money for any luxury goods and as a free citizen he had the liberty to do so. Learned Trial Court accepted the claim of the prosecution that the appellant should have incurred expenditure to maintain his family by way of spending at least 50% of his total income but, I am afraid, the prosecuting agency does not have any authority to dictate a free citizen about the way of life he has to spend, provided it does not violate any law of the land. A free citizen is at liberty to enjoy his entire income or he may spend a small portion of it causing deprivation of his present family members for the benefit of his future generation. It is also evident that the appellant was a father of two school going children at the material time and he cannot be blamed if his thought was guided by way of savings for the betterment of his offspring. Sima Basu (PW-20), the wife of the appellant was also an earning member and she categorically deposed that she would get a considerable amount from her mother who was also a pension holder at that time. Such amount should be brought to the account of the appellant for calculating the proportion/disproportion of the quantum of assets as held by, learned Trial Court, whose findings, I am afraid, was not only based on surmise and conjecture but his findings were purely founded on "preponderance of probability" which is not acceptable in a criminal proceeding rather it requires to be proved "beyond reasonable doubt".

It was noted earlier that the appellant was initially joined the department as Inspector, he got promotion from time to time and his salary was duly increased in consonance with his post. There was no allegation of bribery against him, - as learned public prosecutor admitted with all fairness. No evidence is forthcoming that the incumbent faced any departmental proceeding during his service career. In the back ground it is very difficult to accept that the appellant by unfair means accumulated assets disproportionate to his known sources of income. Learned Counsel for the appellant in course of argument pointed out that his client was a victim of a high level conspiracy so that he and his family are put in trouble. Considering the facts of the case in the light of the discussion made above, the possibility of such a conspiracy cannot be ruled out and I find substance in his argument to some extent particularly when the initial savings of the incumbent got a scope to be multiplied.

"The facts and circumstances of the case suggested that the appellant accumulated a paltry sum during the long check period of 14 years and 5 months and he showed the courage of accumulating the same either in his name or in the name of his wife or daughter. Taking into consideration, the facts of the case, I am of the opinion that if such an employee, who spent a long unblemished career, is asked to explain every penny of his accumulated sum, I am afraid, none would be safe in our society rather he would feel unhappy and uncomfortable, consequently a situation of fear psychosis would prevail in the society at large. In this context, a significant decision of the Hon'ble Apex Court in M. Krishna Reddy v. State D.S.P. Hyderabad, reported in , 1993 C. Cr. L.R. (S.C.) 66 should be looked into with proper circumspection as well as a guiding principle, propounded to deal with the matter, where it was held that "on face of the totality of the circumstances revealed in the case and cumulative effect thereof, if the prosecution cannot be said to have successfully fixed the criminality under Section 5 (1) (e) of the Prevention of Corruption Act, 1947 and it transpires that the incumbent has rendered unblemished services for a long period, the conviction cannot be sustained." (Paragraph 2 of the said judgment as edited). Placing reliance on the said verdict of the Hon'ble Supreme Court in the light of the facts and circumstances of the case, I find merit in the present appeal which stands allowed. The judgment and order of conviction dated 29th day of August 2012 passed by learned Special Judge, C.B.I. Court at Alipore, 24 Parganas (South) in Special Case No. 1 of 2000 are set aside. The appellant is acquitted from the charges levelled against him and he is set at liberty at once. His bail bond stands cancelled. Documents and Alamats seized in connection with this case shall be returned to the person from whom seized.

Let a copy of this judgment be sent to the learned Court below along with the LCR at once, for necessary compliance.

Urgent Photostat certified copy of this judgment, if applied for, shall be supplied to the advocates for the parties upon compliance with all formalities.