Tshering Uden Bhutia vs The State of Sikkim

Sonam Phintso Wangdi, J.—This Appeal is directed against the judgment dated 28-06-2014 of the Special Judge, Prevention of Corruption Act, 1988 (for short the "Act of 1988"), East and North Sikkim at Gangtok, in S.T. (Vig.) Case No. 01 of 2013, by which the Appellant has been convicted for offence under Section 13(1)(e) read with Section 13(2) of the Act of 1988 and sentenced to undergo simple imprisonment of 1 (one) year and to pay a fine of Rs. 20,000/- (Rupees twenty thousand) only and in default of payment of the fine, to undergo further simple imprisonment of 6 (six) months.

Shorn of all details, it is sufficient for the purpose of this Appeal to note that the Appellant is a UDC-cum-Store Keeper in the Rural Management and Development Department, Government of Sikkim, Jorethang, South Sikkim, who was booked under Section 13(1)(e) read with Section 13(2) of the Act of 1988, by the Sikkim Vigilance Police on a suo motu FIR registered by it. The investigation ultimately resulted in a charge-sheet being filed against her in the Court of the Special Judge, Prevention of Corruption Act, 1988, East and North Sikkim at Gangtok, and after the trial she was found guilty of the offence as already noted above.

Although in the Appeal several grounds have been raised to assail the impugned judgment, Mr. A. Moulik, Learned Senior Counsel, appearing on behalf of the Appellant, submits that as her alleged disproportionate assets has been found to be Rs. 63,008.28 (Rupees sixty three thousand eight and paisa twenty eight) only which is just about 2.54% of her known sources of income of Rs. 24,75,940.89 (Rupees twenty four lakhs seventy five thousand nine hundred forty and paisa eighty nine) and, therefore, obviously less than 10%, she is entitled to be acquitted of the charges following the decision in Krishnanand Vs. The State of Madhya Pradesh, AIR 1977 SC 796 : (1977) CriLJ 566 : (1977) 1 SCC 816 .

It has also been pointed out that an amount of Rs. 5,300/- (Rupees five thousand and three hundred) only held by the Appellant in her Savings Bank Account No. 01190008562, accepted as assumed cash in hand in the impugned judgment, has been wrongly discarded by the Trial Court from the assets held by the Appellant at the beginning of the check period as would appear from paragraph 97 of the impugned judgment. It is thus submitted that the amount ought to be deducted from the amount of Rs. 63,008.28 (Rupees sixty three thousand eight and paisa twenty eight), thereby reducing the disproportionate assets to Rs. 57,708.28 (Rupees fifty seven thousand seven hundred eight and paisa twenty eight) which would further reduce the disproportionate assets to only about 2.33%.

Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, fairly concedes to this position.

I have carefully examined the records, perused the impugned judgment and considered the respective submissions of the Learned Counsel.

In Krishnanand Agnihotri (supra) referred to by Mr. Moulik, Learned Counsel for the Appellant, the Hon''ble Supreme Court took the following view:-

"33. It will, therefore, be seen that as against an aggregate surplus income of Rs. 44,383.59 which was available to the appellant during the period in question, the appellant possessed total assets worth Rs. 55,732.25. The assets possessed by the appellant were thus in excess of the surplus income available to him, but since the excess is comparatively small -- it is less than ten per cent of the total income of Rs. 1,27,715.43 -- we do not think it would be right to hold that the assets found in the possession of the appellant were disproportionate to his known sources of income so as to justify the raising of the presumption under sub-section (3) of Section 5. We are of the view that, on the facts of the present case the High Court as well as the Special Judge were in error in raising the presumption contained in sub-section (3) of Section 5 and convicting the appellant on the basis of such presumption."

[underlining mine]

As is obvious from the above, the excess of the surplus income of the Appellant in the case having found to be less than 10% of the total income, it was not deemed right to hold that the assets found in his possession were disproportionate to his known sources of income so as to justify raising of the presumption under Sub-Section (3) of Section 5 of the Prevention of Corruption Act, 1947 corresponding to Section 13(1)(e) of the Act of 1988.

In my view, the other issues raised in the Appeal, though substantial, need not be gone into as firstly, the parties have chosen to confine themselves only to the above question and secondly, the Appeal deserves to be allowed on the sole consideration of the position set out in the foregoing paragraphs.

Resultantly, the impugned judgment is set aside and the Appellant stands acquitted and discharged from bail.

In the result, the Appeal is allowed.

A copy of this judgment and the original case records be transmitted to the Court of the Special Judge, Prevention of Corruption Act, East and North Sikkim at Gangtok, forthwith for its due compliance.