TaxTMI 
TaxTMI 
2023 (1) TMI 1035
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....rahim Ekka have been convicted and sentenced under Section 109 IPC read with Section 13(2) read with Section 13(1)(e) of the P.C. Act, 1988. PROSECUTION CASE 2. Complaint filed by one Kumar Binod on 25.10.2008 is the basis of Vigilance P.S. Case No.26/2008 dated 26.11.2008 registered under Sections 406, 409, 420, 423, 424, 465/120B IPC and Sections 11/13(2) read with Section 13(1)(e) of the P.C.Act, 1988 for acquiring disproportionate assets by the accused/ MLA/ Minister, Anos Ekka and Harinarayan Rai. 3. Complainant made allegation of criminal conspiracy, misappropriation, criminal breach of trust, cheating forgery fraudulent execution of deed of transfer containing false statement of consideration amount and to have acquired assets disproportionate to his known legal source of income by Anosh Ekka and also to have acquired lands in violation of C.N.T. Act in the name of his wife Smt Menon Ujjana Ekka. 4. After investigation Vigilance Bureau submitted, interim charge-sheet no 21/2009 dated 5.10.2009 u/s 406,409,420,423,424,465/120 B of IPC and section 11/13(2) r/w 13(1)(e) of the PC Act, 1988 for possession of disproportionate assets by the accused MLA's/Ex-Minister An....
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....vide letter no. 11 dt. 16.06.11 of Distt. Sub Registrar, Simdega 30.07.05 to 21.09.07 10,25,590/- 3 13 bighas of land purchased at Fatehpur Beri, Hauz Khas, N.Delhi from Virendra Mittal, Pradeep Mittal, Puneet Gupta and Naveen Gupta. 18.05.07 60,48,000/- 4 .366 bore rifle no. 131809 make Husquodarn and 25 pcs cartidges purchased from M/s N.C.Daw & Co.G.T.Road Asansol 12.01.06 15,187/- 5 .32 bore pistol no. 002525 Walther madein Germany with 50 pcs. Cartridges purchased from M/s J.Biswas and Co. Kolkata 30.11.06 29,250/- 6 One N.P bore pistol bearing no. 648392 purchased from Bihar Gun House, Ranchi with 50 pcs of cartridge. 24.11.05 18,560/- 7 One DBBL Gun 12 bore pistol bearing no. 42815/1530 purchased from Bihar Gun House, Ranchi with 50 pcs of cartridge. 02.12.05 8,700/- 8 Balance in A/c no. 22221 (new no. 4914101000222221 in Bank of India, Simdega 1,87,777/- 9 Balance in SB A/c no. 495810100102320 of Ban k of India, High Court, Doranda, Ranchi 2,01,583/- 10 FD certificate no. 9445168 dt. 19.01.09(FD A/c no. 495845110001035), Bank of India, High Court, Ranchi 19....
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....ad 26.05.08 4,70,000/- 34 4 RIP certificates (A/c no. 4632/72, 4639/72, 4633/72, 4641/72) each of Rs. 50,000/- of United Bnak of India, KolebiraBranch, Simdega December 2006 2,00,000/- 35 Balance in Account no. 9190 in Bank of India, Khuntitoli, Simdega 62,832/- 36 Balance in Account no. 3089 in JharkhandGramin Bank, Balalong. 6,49,440/- 37 Balance in PPF Account no. 11443968454in SBI, Simdega 55,094/- 38 Balance in SB A/c no. 491010110000061in Bank of India, Shyamali, Ranchi 1,085/- 39 Balance in SB A/c no. 495810110000896 of Bank of India, High court, Doranda, Ranchi 14,791/- 40 Application for purchase of NSC Reg. no.4989 from Simdega Post Office 30.03.07 1,00,000/- 41 Application for purchase of KVP Reg. No.10577 from Simdega Post Office 19.07.08 1,00,000/- 42 Certified copy of 1 registered sale deed. regarding purchase of land at Simdega received vide letter no. 116 dt. 14.06.11 of Distt. Sub Registrar, Simdega 21.09.07 3,69,648/- 43 Certified copies of sale deeds of land....
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....s) Between 11.05.07 and 11.11.08 2,11,59,770/- 57 Certified copies of sale deeds of land purchased at Ormanjhi, Ranchi furnished vide letter no. 516 dt. 06.04.09 of Distt. Sub Registrar, Ranchi (includes stamp andregistration charges) Between 11.05.07 and 16.05.07 7,99,254/- 58 Letter no. 754 dt. 24.05.11 of Manoj Kumar, Sub-Registrar IX, New Delhi enclosing the true copy of registered sale agreement dt. 23.10.08 pertaining to purchase of entire second floor of building no. 5, CC Basant Lok, Vasant vihar, New Delhi (signatory Menon Ekka) 23.10.08 63,60,000/- In the joint names of Menon Ekka and M/s Ekka Construction Pvt. Ltd. 59 Valuation report no. 226 dt. 05.08.11 of valuation officer, Income Tax, Ranchi regarding valuation of Dairy and Poultry Farm at Irba, Ormanjhi(near Appolo) 2006-09 1,21,88,200/- In the name of Deepak Lakra, Director M/s Ekka Construction Pvt. Ltd. 60 Certified copy of sale deed(in the name of Deepak Lakra) of house no. 963/C, Sushant Lok, Phase I, Gurgaon, furnished, Gurgaon (includes stamp and registration charges) 29.05.06 58,30,890/- In the name of Gidyon Ekkan ....
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.... Ekka, son 80 Application for purchase of KVP(Reg. No.10575) from Simdega Post Office. 19.07.08 1,00,000/- In the name of Irin Ekka, daughter 81 Application for purchase of KVP (Reg. no.10575) from Simdega Post office 19.07.08 1,00,000/- In the name of Nishant Minz 82 Application for purchase of KVP (Reg. no.10578) from Simdega Post Office 19.07.08 1,00,000/- In the name of Nisha Minz 83 Application for purchase of (KVP Reg. no.10579) from Simdega Post Office 19.07.08 1,00,000/- In the name of M/s Motorist Inn, Pangabatala, Karjipara, Jalpaiguri(Director Smt Menon Ekka and Jaykant Bara) 84 Letter no. 197 dt. 31.05.11 of Additional District Sub-Registrar, Rajganj, Jalpaiguri enclosing 23 numbers of certified copies of registered Sale Deeds 09.07.08 to 02.12.08 55,23,042/- 85 Letter no. 237 dt. 30.05.11 of District sub Registrar, Jalpaiguri enclosing 11 numbers of certified copies of registered sale deeds. 11.06.08 to 17.10.08 65,64,593/- 86 17 numbers of certified copies of registered sale deeds executed in 2008 (collected by vigilance....
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.... & Co. G.T. Road Asansol 15,187/- 5. Gross total income declared in IT return 5,85,260/- Premium paid towards LIC policy no. 555027965 of LIC, Gumla Branch 1,00,000/- .32 bore pistol no. 002525 Walther made in Germany with 50 pcs. Cartridges purchased from M/s J. Biswas and Co. Kolkata 29,250/- 6. Gross total income declared in IT return 5,98,310/- Premium paid towards LIC policy no. 555027965 of LIC, Gumla Branch 1,00,000/- One N.P bore pistol bearing no. 648392 purchased from Bihar Gun House, Ranchi with 50 pcs of cartridge. 18,560/- 7. Gross total income declared in IT return 4,63,110/- Premium paid towards LIC policy no. 555027965 of LIC, Gumla Branch 1,00,000/ - One DBBL Gun 12 bore pistol bearing no. 42815/1530 purchased from Bihar Gun House, Ranchi with 50 pcs of cartridge. 8,700/- 8. Gross total income declared in IT return 34,38,975 Premium paid towards LIC policy no. 55507484 of LIC Gumla Branch 1,00,000/ - Balance in A/c no. 22221 (new no. 4914101000222 221 in Bank of India, Simdega 1,87,777/- 9. Gross total income declared in IT return 26,06,500 Premium paid towards LIC po....
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.... Premium paid towards LIC No. 553946728 and 553946731 of LIC, Ranchi Branch II 22,479/- Time deposit Passbook of A/c no. 130102403 in Doranda PO 1,50,000/- 20. Premium paid towards LIC No. 553946728 and 553946731 of LIC, Ranchi Branch II 48,510/- Time deposit Passbook of A/c no. 150101507 in Doranda PO 96,000/- 21. Premium paid to Bazaz Allianz toward insurance (check issued from A/c no. 495810100 102320 of Bank of India, High Court, Doranda, Ranchi 46,887/- Time deposit Passbook of A/c no. 150101503 in Doranda PO 2,50,000/- 22. Premium of life time plan no. 01851002 of ICICI Prudential Life Insurance 1,00,000/ TD Passbook of A/c no. 130102506 in Doranda Post Office book of 1,00,000/- 23. Premium of life time plan no. 01851002 of ICICI Prudential Life Insurance 1,00,000/- TD Passbook of A/c no. 130102507 in Doranda Post Office 1,00,000/- 24. Premium of life time plan no. 01851002 of ICICI Prudential Life Insurance 1,00,000/- TD Passbook of A/c no. 130102508 in Doranda Post Office 1,....
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.... Account no. 11443968454 in SBI, Simdega 55,094/- 38. Premium of premier Life Pension Plan policy no. 08278325 of ICICI Prudential Life insurance 5,00,000/ Balance in SB A/c no. 4910101100000 61 in Bank of India, Shyamali, Ranchi 1,085/- 39. Amount paid for purchase /transfer of shares of Motorist Inn pvt. Ltd. from Tapasi Majumdar, Mrinla Kanti Majumdar and Arup Goshwami. 59,95,000/- Balance in SB A/c no. 4958101100008 96 of Bank of India, High court, Doranda, Ranchi 14,791/- 40. Income tax paid as per IT return 16,77,704 Application for purchase of NSC Reg. no. 4989 from Simdega Post Office 1,00,000/- 41. Income tax paid as per IT return 13,26,910 Application for purchase of KVP Reg. No. 10577 from Simdega Post Office 1,00,000/- 42. Income tax as per IT return 6,03,441/- Certified copy of 1 registered sale deed. regarding purchase of land at Simdega received vide letter no. 116 dt. 14.06.11 of Distt. Sub Registrar, Simdega. 3,69,648/- 43. Purchase of house no. 387, block b, Susha....
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....No. JH01Y3988 purchased from M/s Shyama Automobiles Pvt. Ltd. Ranchi 33,824/- 52. Registration and choice no. etc charges of Toyota CAMRY Car No. JH 20A0001 purchased from M/s BEBBCO Motors Pvt. Ltd., Adityapur, Jamshedpur 9,050/- Tractor No. JH01R9377 purchased from M/s Fogla Auto Pvt. Ltd. Ranchi 3,49,911/- 53. Repayment of vehicle loan A/c no. 652/400485 in Union Bank of India, Doranda, Ranchi 5,14,491/- Verna CRDI(Sx) Car 8,07,867/- 54. Interest paid to Hindustant Credit corporation, GEL Church complex, Main Road, Ranchi from whom Car advance was taken for purchasing Tata Safari Car No. JH06H0001 from M/s Kraft Auto Private Ltd. 53,605/- Balance in CD account no. 11443844053 at SBI, Simdega 23,49,021/- 55. Repayment of loan in Housing loan A/c no. 380306650 180586 in Union Bank of India, Doranda Branch, Ranchi 13,16,836 /- Balance in current account no. 5199101000016 0 at Oriental Bank of Commerce, Doranda College, Ranchi 7,51,149/- 56. Amount paid for registration and choice no. Scorpio Car Reg. No. JH01V....
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....,50,000/- 69. TD Passbook of A/c no. 333053005 in sub Post Office, HSG1, Simdega 2,26,000/- 70. TD Passbook of A/c no. 333053006 in Sub Post office, HSG1, Simdega 2,00,000/- 71. TD Passbook of A/c no. 130102493 in Doranda Post office 7,50,000/- 72 TD Passbook of A/c no. 130102502 in Doranda Post Office 1,00,000/- 73. TD Passbook of A/c no. 130102503 in Doranda Post Office 1,00,000/- 74. TD Passbook of A/c no. 130102504 in Doranda Post Office 1,00,000/- 75. TD Passbook of A/c no. 130102505 in Doranda Post Office 1,00,000/- 76. Application for purchase of NSC (Reg. no. 4988) from Simdega Post Office. 1,00,000/- 77. Certified copy of 1 registered sale deed regarding purchase of land at Simdega received vide letter no. 116 dt. 14.06.11 of Distt. Sub Regist....
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....ing the check period from 10.3.2005 to 31.3.2009 (D) Rs. 3,79,98,060/- Assets found disproportionate to the known sources of income which the accused cannot satisfactorily account for (B-A-C+D) Rs.16,82,10,715/- Percentage of Disproportionate Assets over and above income 579% 8. After cognizance of the offence was taken by the Spl. Judge (Vigilance) vide order dated 5.10.2009, charge was framed by the learned court below against accused Anosh Ekka under Section 13(2) r/w 13 (1)(e) of PC Act on 22.8.2012, and against other co-accused family members namely Ibrahim Ekka, Smt Menon Ujjan Ekka, Deepak Lakra Gidyon Ekka, Roshan Minz and Ibrahim Ekka u/s 109 IPC r/w Section 13(2) r/w 13 (1)(e) of PC Act, on different dates. 9. During trial prosecution examined altogether 153 witnesses and exhibited a number of documents i.e. series Exhibit-1 to Exhibit-122 on behalf of the prosecution and material exhibits have been marked as X to X/13. 10. After prosecution evidence, statement of the accused persons has been recorded under Section 313 Cr.P.C. The defence is of denial and false implication in the case due to political rivalry. 11. Altogether 141 witnesses have b....
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....c provision under Section 29 of the P.C. Act, 1988 as well as in Criminal Law Ordinance, 1944, which deals with the confiscation and attachment of properties and when there is specific law to this effect under the provisions of P.C. Act, 1988, then provisions under Section 452 Cr.P.C. is not applicable and as such, such finding given by the learned court below is illegal and without jurisdiction. ARGUMENT ON BEHALF OF THE APPELLANT IN CR. APPEAL NO. 327 of 2020 19. Judgment of conviction and sentence Gidyon Ekka, Roshan Minz and Ibrahim Ekka Sections 13 (2) r/13(1)(e) of the PC Act r/w Section 109 of the IPC has been challenged on almost identical grounds as taken on behalf of Anosh Ekka. 20. Different companies which existed in the name of the family members of the accused Anosh Ekka have all been taken to be the investments made by the principal accused in their name , without there being any supporting evidence. In the absence of the nexus between the principal accused and other accused being proved charge under Section 109 IPC is not proved against them. 21. It is also argued that assets of these petitioners have been computed as it stood on the conclusion on check ....
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....YSIS 25. After having considered the rival submissions, it must be clarified at the outset that presumption under Section 20 has no application in cases relating to Section 13(1)(e) of the P.C. Act. The appellants in Cr. Appeal Nos.327 and 328 of 2020 are not public servant and they have been held guilty for abetting the offence by aiding the principal accused Anosh Ekka in depositing and investing the ill-gotten money in different modes in their name under a conspiracy. 26. There are basically four broad heads for scrutiny: (1) Income (2) Expenditure (3) Assets (4) Conspiracy and abetment. The disproportionate asset is, (Asset + Expenditure)-Income. ASSETS 27. Evidence of assets acquired during the check period in the name of Anosh Ekka and his wife Menon Ekka, is tabulated in table B of the Judgment of the trial Court (page 91-110) from entry 1 to 47. Some of these assets are joint and some separately in their name. These evidences are documentary evidences of unimpeachable character. These evidence can be summed as under : a. Entries-1,14 &47 is the valuation of the house and that under construction; b. Entries....
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....Jaykant Bara, Ibrahim Ekka and Others has been detailed in the table. The income and expenditure have also been tabulated in Table C and D of the trial Court Judgment. 36. The evidence of assets acquired during the check period is not under challenge, nor in the name of which they have been acquired. The valuation of house has been disputed. There is no room to dispute the valuation of the land and flat purchased by registered sale deed or the vehicles and arms. Learned trial Court has given sufficient reasons for accepting the valuation report. The balance as standing in the bank accounts has also not been denied at any stage. INCOME 37. The claim of windfall income during this period is made on the basis of testimony of oral account of defence witnesses, who have stated to have donated by gift in cash to the principal accused on different occasions of birthday/marriage. The claim of gift made by DW-1 to DW-29, is based on oral evidence unsupported by any documentary evidence. The gift amount varies from Rs. 20,000 to Rs.1,36, 877. The learned court below has noted that some of the gifts were made after the check period. Further, the witnesses had no sufficient means to m....
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.... not carried out business transaction previously and it had no experience to carry out civil works. The beneficiary of the company was accused Menon Ekka and Jaykant Bara who had no experience about the aforesaid work. The learned trial court has dealt in detail with the reasons for not accepting this as income. 40. The following assets acquired during the check period in the name of the accused person has been proved by the prosecution: I. Total Asset in the name of Anosh Ekka and his wife Smt Menon Ekka at the beginning of the check period (i.e 10.3.2005)- Rs. 18,05,827. There is error in taking the initial asset by the Trial Court to be Rs. 92,827/- which will be Rs. 18,05,827/- as per the asset return filed at the time of filing of nomination paper by Anosh Ekka in 2005 {Ext.78 of Case No. EC1R/01/PAT/09AD(S)}. II. Total Assets at the end of check period (i.e.10.3.2009)- Rs. 16,58,37,013/- III. Increase of asset will be Rs. 16,58,37,013- Rs. 18,05,827=Rs. 16,40,31,186 IV. Proved Income Rs.3,06,53,934 and proved expenditure Rs. 3,11,82,814/-. From this it will be evident that expenditure exceeded the income by Rs. 5,28, 880 (Rs. 3,06,53,934....
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....e, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Clause (e) of sub-section (1) of Section 13 corresponds to clause (e) of sub-section (1) of Section 5 of the Prevention of Corruption Act, 1947 (referred to as "the old Act"). But there have been drastic amendments. Under the new clause, the earlier concept of "known sources of income" has undergone a radical change. As per the Explanation appended, the prosecution is relieved of the burden of investigating into "source of income" of an accused to a large extent, as it is stated in the Explanation that "known sources of income" means income received from any lawful source, the receipt of which has been intimated in accordance with the provisions of any law, rules, orders for the time being applicable to a public servant. The expression "known sources of income" has reference to sources known to the prosecution after thorough investigation of the case. It is not, and cannot be contended that "known sources of income" means sources known to the accused. The prosecution cannot, in the very nature of things, be expected t....
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....der Sections 13(2) r/13(1)(e) of the PC Act against the accused Anosh Ekka. 44. As far as the complicity of the other accused persons is concerned, as discussed above there is definite and clinching evidence that assets were acquired in the name of the co-accused persons namely Menon Ekka, Jaykant Bara and Deepak Lakra (appellants in Criminal appeal no.328) and Gidyon Ekka, Roshan Minz and Ibrahim Ekka (appellants in Criminal appeal no.327) . These evidence unerringly point to the active role of the appellant/accused persons in abetting the principal accused in acquiring disproportionate assets by the principal accused. 45. Section 107 of IPC defines abetment of a thing as under: A person abets the doing of a thing, who- First.-Instigates any person to do that thing; or Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.-A person who, by wilful misrepresentation, or by wi....
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....ahim Ekka (brother and nephew of Anosh Ekka) of Criminal appeal 328 and 327 entered into a conspiracy, aided by their active role in commission of the offence of acquisition of disproportionate property. Judgment of conviction of these accused persons on the basis of Section 109 of the IPC for engaging in criminal conspiracy with the principal accused Anosh Ekka and aiding him in acquiring the disproportionate assets by different contrivances punishable under Section 13 (1)(e) of the PC Act is affirmed. SENTENCE 48. Under Section 13(2) of the PC Act,1988, before coming into force of 2014 amendment, the minimum sentence of imprisonment was one year and the maximum was seven years and the convict shall also be liable for fine. Further, Section 16 the Act of 1988 provides that where a sentence of fine is imposed the Court shall take into consideration the amount or value of property, if any, which the accused person has obtained or the pecuniary resources the accused person is unable to account for satisfactorily. Considering the crime test, criminal test and comparative proportionality test laid down Hon'ble the Supreme Court, the sentence of imprisonment and fine imposed to th....