TaxTMI 
TaxTMI 
2020 (10) TMI 1102
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....d to undergo rigorous imprisonment for four years and to pay a fine of Rs. 1,00,00,000/-, in default, to undergo six months simple imprisonment. Similarly, the Appellant in Criminal Appeal No.63/2014 (Smt. Sushma Morajkar) was convicted for an offence of aiding her husband Suresh Morajkar in acquiring assets disproportionate to his known sources of income, which is punishable under Section 109 of the Indian Penal Code, 1860 (IPC), read with Sections 13(2) and 13(1)(e) of the Prevention of Corruption Act, 1988 (said Act) and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 10,000/- and in default, to undergo simple imprisonment for three months. 3. The learned Counsel for the parties agree that both these Appeals can be disposed of by a common judgment and order since both these Appeals challenge the same impugned Judgment and Order. 4. The Special Court framed a charge alleging that Suresh (A1) during the period from 01.05.2008 to 06.01.2011 being a public servant posted as Sepoy in the Customs & Central Excise Department, Mormugao, Goa, was found in possession of disproportionate assets to the tune of Rs. 1,15,96,792/- to his known sources of in....
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....of this nature and, further, were unable to demonstrate that the explanation offered by the appellants was never considered or investigated by this investigating officer. Mr. Singh submits that for want of the examination of the investigating officer, the appellants, ought to have been acquitted. Mr. Singh relies on Ram Dev v/s State of U.P. 1995 SUPP (1) SCC 547, Bihari Prasad v/s State of Bihar, AIR 1996 SC 2905 Damodar Mishra v/s State of Jharkand CriA (SJ) No.212 of 2010 decided on 20.10.2011 by the Jharkhand High Court, Sarwan Nath v/s State of Punjab Cri.A No. 60/ (SB)/2000 decided on 06.12.2012- by the Punjab & Haryana High Court in support of his contention. 9. Mr. P P. Singh submits that in this case, the learned Special Court has not taken into consideration the defence raised by the appellants in their Section 313 Cr.PC statement. He relies on K. M. Nanavati vs State Of Maharashtra AIR 1962 SC 605 to submit that such a statement is not a mere formality and the court has to consider the defence of the accused persons. He submits that such non-consideration vitiates the impugned judgment and order. 10. Thereafter, Mr. P.P. Singh submitted tentative charts of Income a....
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.... record to establish the complicity of Sushma Morajkar, Appellant in Criminal Appeal No. 63/2014 and, therefore, the learned Special Judge erred in convicting Sushma for the offence under Section 109 of the IPC, read with Sections 13(2) and 13(1)(e) of the said Act. He points out that merely because Sushma (A.2) was the wife of Suresh (A.1) the Appellant in Criminal Appeal No.59/2014, the inference of abetting could not have been drawn in this matter. He submits that there is hardly any evidence against A.2 and, therefore, the impugned Judgment and Order, convicting A.2 is required to be set aside. 16. Mr. P.P. Singh, without prejudice, further submits that in this case, the learned Special Judge in sentencing A.1 has gone by the amendment to the said Act which came in force only in the year 2014, in terms of which, the minimum punishment prescribed was 4 years, extendable to 10 years. He points out that the check period, in this case, was 1/5/2008 to 6/1/2011 and, therefore, the amendment to the Act which entered into force in 2014 ought not to have been taken into account by the learned Special Judge. Mr. P.P. Singh submits that there can be no retrospective application of cri....
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....officer, is not fatal to the prosecution case where no prejudice is demonstrated by the accused persons. 21. Mr. Amonkar submits that the issue of sanction under Section 197 of Cr.PC was never raised in this matter and there is no breach whatsoever of the provisions of Section 17 of the said Act. He submits that the initial FIR was registered by the Superintendent of Police who had, by a reasoned order dated 20.10.2012 handed over the investigations to PSI Surve. Therefore, it is evident that the investigations undertaken by the PSI were under the authority of the Superintendent of Police and not on his own. Mr. Amonkar submitted that in any case, any irregularity in the investigations would have no direct bearing on the competence of the Special Court to take cognizance of the offence. He submits that he relies on Vinod Kumar Garg v/s. State 2020 2 SCC 88 State v/s. S. Bangarappa 2001 1 SCC 369 and State of M.P. v/s. Ram Singh 2000 5 SCC 88 in support of his contention. 22. Mr. Amonkar submits that there is overwhelming evidence against A1 in this matter and there was virtually no defence raised by the appellants in their statement under Section 313 of Cr.PC, except ba....
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....on 17 was raised or seriously pressed before the learned Special Judge. Be that as it may, the record very clearly indicates that the FIR in this matter was registered by S. S. Gavai, Superintendent of Police. Thereafter, the Superintendent of Police, vide a formal order, in the exercise of powers conferred upon him by Section 17 of the said Act, specifically authorized PSI Surve, CBI, ACB, Goa to investigate the matter. Further, authorization under Section 18 of the said Act was also issued in favour of PSI Surve . Accordingly, it is not possible to hold that there was any breach of provisions of Section 17 of the said Act and this is possibly the reason why no such contention was raised or if raised was not seriously pressed before the learned Special Court in this matter. 27. In fact, this contention, was not even raised by Mr. P.P. Singh in the course of his detailed oral submissions in the matter but thereafter, Mr. P.P. Singh included this contention in his written submissions, without even seeking the leave of the Court. However, since the liberty of the appellants was involved, Mr. P.P.Singh was permitted to advance this contention in this matter. 28. The reliance pla....
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....ion however serious would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result unless a miscarriage of justice has been caused thereby. In the present case, the appellants have not demonstrated any prejudice or any miscarriage of justice, even assuming that there was any irregularity in the investigation. 32. In Ram Singh (supra), the High Court interfered with the conviction on the ground of breach of provisions of Section 17 of the said Act. However, the Hon'ble Apex reversed the High Court relying upon the order of the Dy. Superintendent, who by giving reasons entrusted the investigation to the Inspector. The Hon'ble Apex Court held that in such circumstances, the High Court erred in concluding that the investigation was conducted by an officer, authorized under Section 17 of the said Act. The Apex Court reiterated that irregularity in the investigation unless shown or brought about a miscarriage of justice will not vitiate the trial. 33. To the same effect are ....
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....t the time of his marriage in 1942-43 and therefore, the same could not be treated as income of the accused during his service period. The accused had also pointed out that they had agricultural income and had also entered into an agreement of sale of his ancestral property and taken advance from the Vendee. The record indicated that some investigations were carried out by the investigating officer concerning these explanations furnished by the accused persons. It is in these circumstances that the Jharkhand High Court concluded that though, the non-investigation of the investigating officer will not be fatal in every case, in this particular case, the same was fatal because the non-examination of the investigating officer had certainly caused prejudice to the accused person, particularly. After all, on account of such non-examination, materials collected during the investigation concerning the defence had not been brought on record. 36. Incidentally, in Damodar Mishra (supra), the Jharkhand High Court almost entirely relied upon Surya Sankaram Karri (supra), which, as noted earlier, was held as per incuriam in Ashok Bhutia. 37. In Sarwan Nath (supra), the accused was charged....
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....ution case much less affect the credibility or otherwise the trustworthiness of the investigating officer's testimony which deserves to be accepted. 40. In Bahadur Naik v/s. State of Bihar 2000 9 SCC 153. the Hon'ble Apex Court once again reiterated that non-examination of the investigating officer, the witness was of no consequence could not be shown as to what prejudice had been caused to the accused by such non-examination. In the present case, Mr. Amonkar pointed out that in the cross-examination of the prosecution witnesses no contradictions or omissions were brought on record. Therefore, there was no occasion for proving any contradictions or omissions through the testimony of the investigating officer. In the absence of any prejudice whatsoever being demonstrated by the appellant, the non-examination of the investigating officer in the present case makes no dent to the prosecution case, which is mostly based upon documentary evidence. 41. In this case, there is clear and unchallenged evidence to hold that the income of A1 from salary during the check period was 2,21,171/-. Neither during the Rs. cross-examination of the prosecution witnesses nor in his st....
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.... an amount of Rs. 29,90,000/-. Deposed to PW2, B. Shirodkar, Senior Branch Manager at LIC at Vasco. PW2 produced on record status reports concerning no less than 42 LIC policies taken out by A1 in his name and the names of his family members. In respect of such policies, A1 paid a premium of Rs. 29,90,000/- during the check period. Such premium was paid by cheque as well as by cash. PW2 deposed that LIC does not accept cash above Rs. 50,000/- towards payment of premium but immediately in the next sentence PW2 clarified that cash above Rs. 50,000/- is accepted after taking PAN of such persons. There are receipts produced on record and there is absolutely no reason to doubt the testimony of PW2, the Senior Branch Manager of LIC that A1, during the check period expended an amount of Rs. 29,20,000/- toward insurance premia. Even this finding, without anything further, is sufficient to convict A1 for having assets disproportionate to his known sources of income and for which A1 had no explanation whatsoever. 46. The evidence on record points out to the movable properties purchased during the check period, to the expensive educational institutions which A1's children attended and ....
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....inly based upon documentary evidence that had gone unchallenged, considered but rejected A1's so-called defence that everything was false or that A1 was innocent of the charges leveled against him. Therefore, this is not the case where any specific defence as such was raised by A1 and such defence has not been considered by the learned Special Judge whilst convicting A1. 50. The learned Special Judge has quite correctly marshaled and evaluated the documentary evidence and concluded that the prosecution has proved beyond a reasonable doubt that A1 has committed the offence under Section 13(1)(e) of the said Act. Particularly, there is no case made out to interfere with the impugned judgment and order in so far as the conviction of A1 - Suraj Morajkar is concerned. 51. However, in so far as A.2 i.e. Sushma Morajkar is concerned, I am not satisfied that the prosecution has proved the case of her abetment, beyond a reasonable doubt. 52. The learned Special Judge has considered the evidence concerning A.2 in paragraphs 120 to 127 of the impugned Judgment and Order. The learned Special Judge has firstly found fault with A.2 not filing income tax returns and disclosing the am....
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....f purchasing the transport vehicle or that she was aware that purchase of such transport vehicle is from out of any amounts illegally earned by A.1. In any case, from the evidence on record at least, it cannot be said that the ingredients of abetment have been proved by the prosecution in this case beyond a reasonable doubt. At the highest, there may be grounds to suspect the involvement of A.2. Suspicion, howsoever high, can never take place of proof in criminal matters. 57. Mr. P.P. Singh submits that A.2 was almost illiterate and a housewife. He submits that even this aspect was not even taken into consideration before A.2 could be convicted under Section 109 of the IPC. 58. Taking into consideration the evidence on record in a cumulative manner, it is difficult to hold that the prosecution, in this case, has established the guilt of A.2 beyond a reasonable doubt. Therefore, the benefit of the doubt is due to A.2 in this matter. 59. In so far as the sentence awarded to A.1 is concerned, there is no case made out for interference. There is no merit in the contention that the learned Special Judge has applied the 2014 amendment by which the minimum punishment is enhanced ....