Vasant Rao Guhe vs The State Of Madhya Pradesh

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1279 OF 2017 [ARISING OUT OF S.L.P.(CRL.) NO. 3595 OF 2014]

Vasant Rao Guhe …Appellant

VERSUS

State of Madhya Pradesh …Respondent

JUDGMENT

AMITAVA ROY, J.

The appellant hereby seeks to overturn the judgment and

order dated 09.01.2014 rendered by the High Court of Madhya

Pradesh at Jabalpur in Criminal Appeal No.1573 of 2000

thereby affirming his conviction under Section 13(1)(e) read with

Section 13(2) of the Prevention of Corruption Act, 1988 (for

short, hereinafter to be referred to as the “Act”) and sentence to

undergo R.I. for two years with fine of Rs.20,000/- with default

sentence of R.I. of six months as recorded by the learned Special Signature Not Verified Digitally signed by Judge (Prevention of Corruption Act) in his verdict dated GULSHAN KUMAR ARORA Date: 2017.08.09 16:58:06 IST Reason: 07.06.2000 rendered in Special Case No.2/1996. 2

2. We have heard Mr. Harsh Parashar, learned counsel for

the appellant and Ms. Sakshi Kakkar, learned counsel for the

respondent.

3. The genesis of the prosecution lies in a complaint lodged

by one Khuman Singh, resident of Betul Ganj alleging that the

appellant, who at the relevant time was holding the office of

Sub-Engineer, Irrigation Department, Mahi Project Patelabad,

Jhabua, by abusing his post, had acquired assets

disproportionate to his known sources of income. FIR No.136

Dated 27.10.1992 was registered by Inspector, S.P.

Establishment, Divisional Lokayukt, Office Bhopal and on the

completion of the investigation, charge-sheet was laid to the

effect that during the check period between 1970 to 1992, after

adjusting the income and expenditure of the appellant, he was

found to have acquired, by applying corrupt and illegal means

while acting as a public servant, assets valued Rs.7,94,033/-

which was disproportionate to his known sources of income and

had thereby committed an offence under Section 13(1)(e) read

with Section 13(2) of the Act.

4. The Trial Court framed charge under the aforementioned 3

sections of law, punishable under Section 19 of the Act to which

the appellant pleaded “not guilty” and demanded trial.

5. As the charge would disclose, the appellant during the

check period was shown to have earned total income of

Rs.1,95,637/- and after accounting for an expenditure of 60%

thereof towards household needs, he had a saving of

Rs.79,045/-. However, having regard to his bank deposits and

his investments in plots and a house that he had built on one of

those, he had expended thereby an amount of Rs.9,89,670/-

during the said period and thus was possessed of assets to the

tune of Rs.7,94,033/- which was disproportionate to his known

sources of income.

6. At the trial, the prosecution adduced oral as well as

documentary evidence. Its witnesses included amongst others

Inspector A.J. Khan (PW6), the investigating officer and

Inspector, Roop Singh Solanki (PW2) who did follow up the

investigation taking the baton from PW6. As the testimony of

these two witnesses is of decisive bearing and demonstrable

from the analysis of the evidence as embarked upon by the

Courts below, reference thereto is indispensable. 4

7. A.J. Khan (PW6) stated that after the registration of the

First Information Report, he conducted the preliminary

investigation and ascertained amongst others, the sources of

income of the appellant during the check period and most

importantly admitted not to have added his agricultural income

and the pay for various periods, before handing over the

investigation to PW2.

8. Roop Singh Solanki (PW2) who took over the investigation

from PW6 stated that particulars of the income and expenditure

for the check period were drawn up by him and were handed

over to the Superintendent of Police, Vigilance Commissioner,

Bhopal. According to him, the total income of the appellant from

pay during the check period was Rs.1,94,365/- which together

with the interest on the amount deposited in the bank was

Rs.1,95,637/-. According to this witness, if 60% expenditure

towards household necessities of the appellant and his family is

deducted therefrom, his saving would be of Rs.79,045/-. In that

premise, the expenditure of the appellant having been recorded

to be Rs.9,89,670/-, the charge of disproportionate asset

unrelatable to his known sources of income stood established.

This witness in his cross-examination however admitted that 5

from records, the annual agricultural income of the appellant

appeared to be Rs.1,25,000/- which for the check period would

amount to Rs.27,00,000/-. He conceded further that the

appellant’s salary for the period October 1970 to June 1974,

September 1979 to October 1979 and March 1982 to August

1990 had not been accounted for by the earlier investigating

officer and admitted as well to have not added the same to the

income of the appellant. This witness testified as well the

agricultural annual income of Rs.10,000/- from village Baghoda

which for the check period was quantifiable at Rs.2,22,000/-

and thus his total agricultural income over the check period was

Rs.29,22,000/-. He admitted as well that this agricultural

income and the omitted amount of pay, if added, there would be

no disproportionate assets qua the appellant.

9. The Trial Court while assessing the evidence on record

with particular reference to the testimony of the aforementioned

two witnesses came to a categorical finding that the prosecution

version that the appellant had income of Rs.1,95,637/- during

the check period was patently incorrect. It referred to documents

on record and worked out for itself the pay which the appellant

was supposed to earn during the periods omitted by the 6

prosecution and computed the same to be Rs.1,93,208/- and

adding the amount so calculated concluded that the appellant’s

income from pay during the check period was Rs.3,06,335/-

which together with interest on the amount deposited in the

bank came to be Rs.3,07,652/-. It deducted 60% therefrom

towards expenses for the family needs and determined

Rs.1,23,061/- to be his savings under that head.

10. Similarly, the Trial Court referred to the documents on

record produced by the prosecution with regard to the

agricultural lands at Devbhilai and Baghoda villages in the name

of the appellant, his father and two brothers which disclosed an

annual income of Rs.1,35,000/- including the cost of agriculture

etc. Though the Trial Court initially was reluctant to accept this

figure in absence of any clarification offered by the appellant

albeit the evidence to that effect was produced by the

prosecution, it eventually acted on the same and after deducting

60% therefrom towards the expenses/investments was of the

view that annually an amount of Rs.54,000/- was available to

the appellant, his father and the two brothers as agricultural

income. The Trial Court quantified 1/4th of this figure in the

share of the appellant and computed it to be Rs.13,500/- per 7

annum which for 22 years i.e. the check period was calculated

at Rs.2,97,000/-. According to it, thus at the end of the check

period the appellant had at his disposal, from agricultural

income and saving from pay Rs.4,20,061/-.

11. The learned Trial Court thereafter adverted to the

expenditures incurred by the appellant towards purchase of

plots and construction of house. It also did take account of the

deposits in bank. Referring to the sale deeds of the purchase of

two plots from Tapti Housing Cooperative Society Limited in

Multai in the name of his wife and at Gandhi Nagar Colony,

Betul, it recorded that those acquisitions had been made for

Rs.7728/- and Rs.18,000/- respectively. It accepted the

valuation of the house constructed over the land at Betul at

Rs.1,48,918/- and together with the amounts deposited in the

bank in various accounts computed the quantum of expenditure

during the check period to be Rs.6,35,259/-. Though as the Trial

Court’s narrative would reveal, that in defence, the appellant

had produced documents in connection with his immovable

property, those were not taken note of in absence of any

clarification in connection therewith. The learned Trial Court

was thus of the view, having regard to the difference in the 8

figures representing the income and expenditures, that the

charge of acquisition of assets by the appellant disproportionate

to his known sources of income as levelled stood established and

consequently returned a finding of guilt under Section 13(1)(e)

and Section 13(2) of the Act and sentenced him as above.

12. As would be evident from the rendition of the learned Trial

Court on the two major heads of income i.e. pay and agricultural

earnings, the learned Trial Court not only of its own embarked

on an inquiry to ascertain and compute the figures, it wholly

resorted to inferences in calculating the pay for the periods

omitted by the prosecution as well as in fixing 60% expenditure

from pay towards household needs. Its assessment of

agricultural income of the appellant to say the least is also

wholly presumptive in absence of any basis whatsoever in

support thereof. This is noticeably in the face of the admission of

the prosecution that while levelling the charge against the

appellant of acquisition of assets disproportionate to his known

sources of income, it had not accounted for his income from pay

vis-à-vis the periods omitted as well as from agricultural

earnings. The figures ultimately arrived at by the Trial Court are

thus patently different from those mentioned in the charge 9

framed against the appellant and on which he was put on trial.

In other words, the appellant was convicted by the Trial Court

on a charge different from the one framed against him and that

too on the basis of calculations made by it by applying

inferences and guess works.

13. The High Court in turn, while noticing the aspect that the

prosecution while laying the charge-sheet had not accounted for

the income of the appellant by way of pay for the aforementioned

periods as well as receipts from agricultural lands, reduced the

household expenditure from 60% to 50% thereby generating for

the appellant, savings of Rs.1,53,826/-. Qua the agricultural

income as well, the cost of production and other investments

were scaled down to 50% but agreed with the Trial Court that

the agricultural lands being the joint family property of the

appellant, his father and two brothers, he was entitled to only

1/4th share from the income therefrom at the rate of Rs.16,875/-

which was worked out to be Rs.3,71,250/- for the check period.

The High Court thus computed the savings from the salary and

the agricultural earnings to be Rs.5,25,076/-. It endorsed the

price of the plots of land as accepted by the Trial Court but fixed

the value of the construction of the house at Rs.1,63,660.44/-. It 10

then proceeded to decide on the charge by accepting the total

income of the appellant to be Rs.5,25,076/- and the expenditure

as Rs.6,11,121/-. The other segments of the expenditures, as

accepted by the Trial Court, were affirmed by it. Based on this

computation, the High Court having found the appellant to be in

possession of Rs.86,045/- which was in excess of 10% of his

income from known sources i.e. Rs.5,25,076/- affirmed his

conviction and sentence as awarded by the learned Trial Court.

It however dismissed the appeal of the State seeking forfeiture of

this amount which the Trial Court too had declined.

14. In essence, thus the High Court fell in error in the lines

similar to that of the Trial Court, the only variation in approach

being reduction in the percentage of expenditure in household

exigencies and investments in agricultural yields. The vitiating

infirmity of speculative assumptions in favour of the prosecution

and against the appellant therefore afflicted its eventual

determination as well.

15. The learned counsel for the appellant has insistently

impeached his conviction and sentence contending that the

prosecution had utterly failed to adhere to and prove the charge 11

levelled against him and thus the impugned judgments are liable

to be set aside, lest there would be travesty of justice. According

to the learned counsel, not only the Courts below have grossly

erred, in absence of any admissible basis, to calculate the pay of

the appellant for the periods omitted as well as his agricultural

income, the unfounded assumption of 60/50% expenditure

towards household needs and field investments have rendered

the findings on his income from the known sources as disclosed

by the prosecution patently unsustainable in law and on facts.

This is more so as the relevant witnesses of the prosecution have

conceded that the income of the appellant from the pay for the

periods excluded as well as agricultural gains, if included, would

render the charge of disproportionate assets non est, he urged.

As on the basis of the materials on record, the prosecution had

failed to prove/establish that the appellant during the check

period was in possession of pecuniary resources or property

disproportionate to his known sources of income, he in law was

not called upon to offer any explanation therefor and on that

premise as well, the adverse inference drawn against him on

that count is indefensible.

16. Per contra, the learned counsel for the respondent/State 12

has urged that the prosecution having proved the charge beyond

all reasonable doubt as has been endorsed by the concurrent

findings of the Courts below, no interference with the conviction

and sentence is warranted.

17. The materials on record and the rival assertions have

received our due attention. The accusations on which the charge

under Section 13(1)(e) read with Section 13(2) of the Act were

framed against the appellant have been set out hereinabove.

Admittedly, having regard to the ultimate figures as calculated

by the Courts below, the charge has undergone a

metamorphosis. This assumes immense significance in view of

the fact that no fresh charge had been framed on the allegations

for which the appellant was eventually convicted and sentenced.

Any adverse inference prejudicial to the appellant was thus not

available in law, he not having been confronted with the altered

imputations. To reiterate, the charge for which the appellant

finally has been convicted wears a new complexion different from

the one with which he had been arraigned at the initiation of the

trial. The appellant thus for all practical purposes was subjected

to a trial involving fleeting frames of accusations of which he was

denied prior notice. This is clearly opposed to the fundamental 13

precepts of a criminal prosecution.

18. Apart therefrom, both the Courts below indulged in

voluntary exercises to quantify the pay of the appellant for the

periods excluded by the prosecution as well as his agricultural

income and that too premised on presumptions with regard to

his possible expenditures/investments and his share in the

agricultural receipts, having regard to the nature of the charge

cast on the appellant and the inflexible burden on the

prosecution to unfailingly prove all the ingredients constituting

that same, there could have been no room whatsoever of any

inference or speculation by the Courts below. A person cannot

be subjected to a criminal prosecution either for a charge which

is amorphous and transitory and further on evidence that is

conjectural or hypothetical. The appellant in the determinations

before the Courts below has been subjected to a trial in which

both the charges and evidence on aspects with vital bearing

thereon lacked certitude, precision and unambiguity.

19. Section 13(1)(e) of the Act deserves extraction at this

juncture:

“13. Criminal misconduct by a public servant 14

–(1) A public servant is said to commit the offence of criminal misconduct, –

(a)…………….

(b)……………

(c)…………….

(d)……………

(e) if he or any person on his behalf, is in possession 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.

Explanation. – For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.”

20. As ordained by the above statutory text, a public servant

charged of criminal misconduct thereunder has to be proved by

the prosecution to be in possession of pecuniary resources or

property disproportionate to his known sources of income, at

any time during the period of his office. Such possession of

pecuniary resources or property disproportionate to his known

sources of income may be of his or anyone on his behalf as the

case may be. Further, he would be held to be guilty of such

offence of criminal misconduct, if he cannot satisfactorily

account such disproportionate pecuniary resources or property.

The explanation to Section 13(1)(e) elucidates the words “known 15

sources of income” to mean income received from any lawful

source and that such receipt has been intimated in accordance

with the provisions of law, rules, orders for the time being

applicable to a public servant.

21. From the design and purport of clause (e) of sub-clause (1)

to Section 13, it is apparent that the primary burden to bring

home the charge of criminal misconduct thereunder would be

indubitably on the prosecution to establish beyond reasonable

doubt that the public servant either himself or through anyone

else had at any time during the period of his office been in

possession of pecuniary resources or property disproportionate

to his known sources of income and it is only on the discharge of

such burden by the prosecution, if he fails to satisfactorily

account for the same, he would be in law held guilty of such

offence. In other words, in case the prosecution fails to prove

that the public servant either by himself or through anyone else

had at any time during the period of his office been in

possession of pecuniary resources or property disproportionate

to his known sources of income, he would not be required in law

to offer any explanation to satisfactorily account therefor. A

public servant facing such charge, cannot be comprehended to 16

furnish any explanation in absence of the proof of the allegation

of being in possession by himself or through someone else,

pecuniary resources or property disproportionate to his known

sources of income. As has been held by this Court amongst

others in State of Maharashtra Vs. Dnyaneshwar Laxman

Rao Wankhede1, even in a case when the burden is on the

accused, the prosecution must first prove the foundational facts.

Incidentally, this decision was rendered in a case involving a

charge under Sections 7, 13 and 20 of the Act.

22. In view of the materials on record and the state of law as

above, we are thus of the considered opinion that the

prosecution has failed to prove beyond all reasonable doubt the

charge of criminal misconduct under Section 13(1)(e) of the Act

and punishable under Section 13(2) thereof against the

appellant. He is thus entitled to the benefit of doubt. The

prosecution to succeed in a criminal trial has to pitch its case

beyond all reasonable doubt and lodge it in the realm of “must

be true” category and not rest contended by leaving it in the

domain of “may be true”. We are thus left unpersuaded by the

charge laid by the prosecution and the adjudications undertaken 1 (2009) 15 SCC 200 17

by the Courts below. The conviction and sentence, thus is set

aside. The appeal is allowed.

…........................................J. [DIPAK MISRA]

…........................................J. [AMITAVA ROY]

…........................................J. [A.M. KHANWILKAR] NEW DELHI;

AUGUST 09, 2017.