TaxTMI 
TaxTMI 
2023 (1) TMI 1035
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....enced 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 Anosh Ekka and Hari Narayan Rai. During the pende....
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.... 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 19.01.09 10,00,000/- 11 Endeavour Ford Car No. JH01M0001 purchased from M/s Akash Travels Agency, Ranchi Club Complex, Ranchi 20.06.06 5,00,000/- 12 Endeavour BS II....
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....nt 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 purchased at Hinoo, Neori, Ormanjhi, Ranchi furnished vide letter no. 868 dt 30.12.08 of Distt. Sub Registrar, Ranchi (including stamp and registration charges) Between 27.03.06 and 16.01.08 1,20,35,705/- 44 Letter no. 274 dt. 08.04.11 of Distt. Sub Registrar, Ranchi enclosing certified copy of registered sale deed no. 7718 dt. 10.05.08 pertaining to purchase of land at Serumtoli, Chutia, Ranchi 10.05.08 7,98,433/- &n....
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....kka) 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 61 Application for purpose of NSC (Reg. No.4990) from Simdega Post Office 30.03.07 1,00,000/- 62 Flat No. C-1/5, Hari Om Tower Residential complex, Road(includes stampand registration charges) 29.07.06 9,07,784/- In the name of Roshan Minz, nephew (sister's son) 63 Flat no. 104, Sri Ram Regency Apartment, circular Road, Ranchi (includes stamp and registration charges) 02.09.06 13,56,353/- In the name of Jaykant Bara (Director M/s Ekka Construction Pvt. Ltd.) 64 Application for purchase of NSC Reg. No.4987 from Simdega Post office 30.03.07 1,00,000/- 6....
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....f 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 Bureau vide which plots were purchased in Jalpaiguri) (Deeds no. 2946, 2947, 2586, 2550, 2400, 2399, 2398, 2397, 2374, 2092, 2228, 2091, 2145, 2146, 2148, 2051,2090) 13.06.08 to 06.09.08 55,44,434/- 87 Balance in A/c no. 30404683609 in SBI,Town Branch, Jalpaiguri 28,20,258/- 88 Balance in A/c no. CA 372899 inAllahabad Bank, Siliguri 1,19,546/- Total Rs. 15,93,59,416/- (III)- INCOME, EXPENDITURE AND ASSETS DURING CHECK-PERIOD (Only those Income, Expenditure and Assets are mentioned which were not available at the beginning of check period) i.e. From 10.03.05 to 31.03.2009. &n....
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....anch 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 policy no. 555037814 of LIC, Gumla Branch 5,00,000/- Balance in SB A/c no. 4958101001023 20 of Ban k of India, High Court, Doranda, Ranchi 2,01,583/- 10. Gross total income declared in IT return 22,51,600 Premium paid towards LIC policy no. 555220656 of LIC, Br. II, Ranchi 85,679/- FD certificate no. 9445168 dt. 19.01.09 (FD A/c no. 4958451100010 35), Bank of India, High Court, Ranchi 10,00,000/- 11. Gross total income declared in IT return 3,70,650/- Premium paid towards LIC policy no. 555220656 of LIC, Br. II, Ranchi 88,530/- Endeavour Ford Car No. JH01M0001 purchased from M/s Akash Travels Agency, Ranchi Club Complex, Ranchi 5,00,000/- 12. Loan from Housing loan A/c no. 3803066 0180586 in Union Bank of India, Doranda Branch, Ranchi 39,70,000 Premium paid towards LIC policy no. 555220656 of LIC, Br. II, Ranchi 85,669/- Endeavour BS III Car Reg. No. JH01Z0001 purchased from M/s Jayshree Ford, Ranchi 57,569/- 13. Gross total income declared in IT return 53,68,040/- ....
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.... Income tax paid as per IT return 5,25,000/- TD Passbook of A/c no. 130102509 in Doranda Post Office 1,00,000/- 26. Income tax paid as per IT return 97,743/- TD Passbook of A/c no. 130102510 in Doranda Post Office 1,00,000/- 27. Income tax paid as per IT return 1,06,597/- TD Passbook of A/c no. 130102511 in Doranda Post Office 1,00,000/- 28. Income tax paid as per IT return 60,500/- TD Passbook of A/c no. 130102512 in Doranda Post Office 1,00,000/- 29. Expenditure incurred on education of daughter Miss. Ireen Ekka in GD Goenka World School, Gurgaon (letter dt. 21.09.10 of Major Kartikeya Sharma, Adminstrat or 4,75,000/- TD Passbook of A/c no. 130102513 in Doranda Post Office 1,00,000/- 30. Expenditure incurred on education of daughter Miss. Ireen Ekka in GD Goenka World School, Gurgaon (letter dt. 21.09.10 of Major Kartikeya Sharma, Adminstrat or 5,90,000/ TD Passbook of A/c no. 130102514 in Doranda Post Office 1,00,000/- 31. Kitchen expenses (1/3rd of the net salary income of Anosh Ekka 3,38,784/ TD Passbook of A/c no. 130102515 in Doranda Post Of....
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.... 1,20,35,705/- 44. Amount paid for registration etc. of Tripper vehicle no. JH11D 6277 9,843/- Letter no. 274 dt. 08.04.11 of Distt. Sub Registrar, Ranchi enclosing certified copy of registered sale deed no. 7718 dt. 10.05.08 pertaining to purchase of land at Serumtoli, Chutia, Ranchi 7,98,433/- 45. Amount paid for registration etc. of Tripper vehicle no. JH10N6277 purchased from Auto Plannate industries, Dhanbad 28,840/- Letter No. 462 dt. 20.06.11 of Distt. Sub- Registrar, Ranchi enclosing certified copy of registered sale deed no. 94 dt. 06.05.08 pertaining to purchase of land at Serumtoli, Chutia, Ranchi 6,42,823/- 46. Amount paid for registration etc. of tripper vehicle no. JH09H6277 4,750/- Valuation report no. 228 dt. 08.08.11 of valuation officer, Income Tax, Ranchi, regarding valuation of house at Thakurtoli, Simdega 20,28,400/- 47. Amount paid for registration etc of tripper Veh. no. JH0556277 4,780/- Balance in Joint SB A/c no. 3803020101560 36 in Union Bank of India, Doranda, Ranchi 7,023/- 48. Amount paid for registration of Tractor Reg. no. JH01R 9377 733,- Tata Saf....
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....n charges) 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) 63,60,000/- 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) 1,21,88,200/- 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) 58,30,890/- 61. Application for purpose of NSC (Reg. No. 4990) from Simdega Post Office 1,00,000/- 62. Flat No. C-1/5, Hari Om Tower Residential complex, Road(includes stamp and registration charges) 907784 63. Flat no. 104, Sri Ram Regency Apartment, office circular Road, Ranchi(includes stamp and registration and registration charges) ....
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....e 1,00,000/- 84. Letter no. 197 dt. 31.05.11 of Additional District Sub- Registrar, Rajganj, Jalpaniguri enclosing 23 numbers of certified copies of registered Sale Deeds 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. 65,64,593/- 86. 17 numbers o certified copies of registered sale deeds executed in 2008 (collected by vigilance Bureau vide which plots were purchased in Jalpaiguri) (Deeds no. 2946, 2947, 2586, 2550, 2400, 2399, 2398, 2397, 2374 2092, 2228, 2091, 2145,2146, 2148 2051,2090) 55,44,434/- 87. Balance in A/c no. 30404683609 in SBI, Town Branch, Jalpaiguri 28,20,258/- 88. Balance in A/c no. CA 372899 in Allahabad Bank, Siliguri 1,19,546/- Total Rs. 15,93,59,416/- 7. Relying on the above calculation the I.O. submitted that the accused Anosh Ekka possessed / acquired total assets during the check period in the following manner- Assets at the beginning....
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....ck period as per defence evidence was Rs.18,02,86,375/- and total asset + expenditure was Rs. 10,99,85,590/- (Rs.9,62,77,564/- Rs.1,37,08,026/-) and as such, there was no disproportionate assets. If the judgment and decree passed in Money Suit No.36/2012, which is the valuation of Rs.3 Crores, the gift amount of Rs.1,36,87,847/- and if all amounts is added, then it comes to Rs.22,39,77,222/- and accordingly, the appellant cannot be said to have disproportionate assets to the known source of income. 15. Defence evidence on income arising out of gift has been discarded merely on presumption that donors were farmers and therefore had no sufficient means to gift. 16. Prosecution has failed to adduce any evidence with regard to the other accused persons during the check period and only on the basis of presumption, it has been found that the property which existed in their name was the assets acquired by Anosh Ekka, which was absolutely illegal. 17. The learned court below fell in error to have illegally, rejected the valuation report of the building submitted by the defence, and if the valuation reports were taken into consideration, the discrepancies between the valuation report of ....
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....n adduced into evidence and formally proved. These documentary evidences are beyond reproach and have not been challenged. Once the prosecution succeeds to lead evidence on disproportionate asset, onus shifts on the accused to explain the legitimate source of income from which the disproportionate income has been acquired. Reliance has been placed on K. Veeraswami v. Union of India, (1991) 3 SCC 655 wherein it has been held that It is for the prosecution to prove that the accused or any person on his behalf, has been in possession of pecuniary resources or property disproportionate to his known sources of income. When that onus is discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionality of the properties possessed by him. The onus to account for the disproportionate assets is cast on the Public Servant also in terms of Section 106 of the Indian Evidence Act, 1872. The trial Court has noted in paragraph no.2, page no.175 of the Judgment of the learned Trial Court, that the competent authority-Income Tax Department had served several notices and reminders under Sections 148,142(1) and 143(2) of the Income Tax Act, 1961 to the assessee ....
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.... of Dairy farm 30. Evidence of assets acquired during the check period in the name of Gidyon Ekka is tabulated in Table B as under a. Entry 61-NSC b. Entry-62- Purchase of Flat 31. Evidence of assets acquired during the check period in the name of Roshan Minz (son of sister of Anos Ekka) a. Entry-63-Purchase of flat 32. Evidence of assets acquired during the check period in the name of Ibrahim Ekka a. Entry 77-purchase of land b. Entry 78-Purchase of vehicle c. Entry 79-Purchase of NSC 33. Evidence of assets acquired during the check period in the name of Deepak Lakra a. Entry 60-Purchase of house 34. Evidence of assets acquired during the check period in the name of Jaykant Bara a. Entry 64- Purchase of NSC b. Entry 65-75-Pass books of different Bank and Post office accounts 35. The assets in the name of M/s Ekka Construction Pvt. Ltd. with Directors, Jaikant Bara and Deepak Lakra has been projected in Sl. Nos. 49-58. Further, the valuation of dairy and poultry form in the joint name of Menon Ekka and Ekka Construction is at Sl. No.59 of the table. Similar evidence of assets acquired in the name of Deepak Lakra, Gidyonn Ekka, Roshan Minz and Jaykant Bara, Ibr....
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....ry finding. It has been noted that the defence failed to show any book of accounts regarding the expenditure incurred in supply of materials, labour charges etc. in support of the valuation report Ext C. 39. With regard to the income of Rs. 3 crore from the judgment and decree passed in Money Suit no. 36/12 (Ext B and B/1) in the form of share application money of Rs.1.4 crore and Rs.1.6 crore as unsecured loan in favour of the accused persons, it is argued on behalf of the respondent that this plea was taken before the income tax authority which was found to be false and not supported by book of accounts which was mandatorily to be kept in terms of Section 209 of the Companies Act,1956 and Section 44 (a)(a) of the Income Tax Act, 1961. Further, the order of the income tax authority (Ext 103 and 104) for the assessment year 2006-2007 and 2007- 08, revealed that there was found no details to establish the credentials of the creditors/directors of M/s Teesta Rangit Pvt ltd and M/s Envision Pvt. Ltd like PAN details, ITR. The genuineness of the transactions could not be established. The claim of investment of Rs.1.85 crores was made in the company which had not carried out business t....
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....ular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. Those will be matters specially within the knowledge of the public servant within the meaning of Section 106 of the Evidence Act, 1872. Under Section 106 the phrase "burden of proof" is clearly used in the secondary sense, namely, the duty of introducing evidence. The nature and extent of the burden cast on the accused is well-settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability. It has been held in M.P. v. Awadh Kishore Gupta, (2004) 1 SCC 691 5. Section 13 deals with various situations when a public servant can be said to have committed criminal misconduct. Clause (e) of sub-section (1) of the section is pressed into service against the accused. The same is applicable when the public servant 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 satisfactor....
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....e public servant, will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime or immoral secretions by persons prima facie would not be receipt from the "known sources of income" of a public servant. 7. The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily" and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the court that his explanation was worthy of acceptance. These principles has been reiterated by Hon'ble the Supreme Court in State of Karnataka v. J. Jayalalitha, (2017) 6 SCC 263 43. From the above discussion it is apparent that there was sudden surge of the assets in the name of accused Anosh Ekka and his family members after he became minister in the State of Jharkhand. The accused has failed to account for acquisition of the assets which were disproportionate to his known source of income. Prosecution has thus proved the charge under Sections 13(2) r/13(1)(e) of the PC Act against the accused Anosh Ekka. 44. As fa....
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....and counsel and encouragement in the crime. It is to be born in mind that it is not necessary that an instigation should be only 'words' and may not be 'conduct. It has been held in P. Nallammal v. State, (1999) 6 SCC 559 it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of trial of the offence. If a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the PC Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the Court of a Special Judge having jurisdiction in the matter. 47. In the present case from the evidence of purchase of plots of land, flats, and vehicles in their name without any other lawful source of income during the check period are evidence to show that the appellants namely Menon Ekka (wife of Anosh Ekka), Jaykant Bara, Deepak Lakra and Gidyon Ekka, Roshan Minz and Ibrahim Ekka (brother and nephew of Anosh Ekka) of Criminal appeal 328 and 327 entered into a conspiracy, aided by their active role in com....