Case Law Details
Anosh Ekka Vs Union of India (Jharkhand High Court)
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 MLA/Ex-Minister 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.
During check period from 10.3.2005 to 31.3.2005 Anosh Ekka had acquired assets worth 57.01 Crore, disproportionate to his known sources of income against the pre-check assets of Rs. 92,827/-. The property so acquired was invested in land as well as deposits in NSC’s KVP etc. A construction company in the name of M/s Ekka Construction Pvt. Ltd. was floated and registered with the Rural Works Department of the Govt. of Jharkhand as Class-I A Contractor without fulfilling the eligibility criteria to project the proceeds of crime as untainted income. After investigation the case was found true against accused Anosh Ekka of acquiring disproportionate assets to the known source of income in his own name and in the name of his family members and relatives and associates.
Also Read: Jharkhand HC upheld Conviction of Former Minister under PMLA
In this case 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.
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.
It is manifest from the definition of Section 107 of IPC that in order to prove abetment, the knowledge or intention on the part of the person accused of the offence need to be proved. Mental element being abstract can be only be judged by conscious act on the part of the person concerned. A man is presumed to know the natural consequence of his act. To “aid” and “abet” means to help, assist, or facilitate the commission of a crime, or to promote the accomplishment thereof, or to help in advancing or bringing it about. The word “abet” includes knowledge of the wrongful purpose of the perpetrator 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.
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 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.
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 the appellant Anosh Ekka and Menon Ekka does not require any interference by this Court and is accordingly affirmed.
However in case of Jaykant Bara, Deepak Lakra, Gidyon Ekka, Roshan Minz and Ibrahim Ekka a sentence of RI of five years and fine of five lakhs each shall meet the ends of justice. In default of payment of fine the convict shall serve a sentence of six months.
The argument questioning the power of the trial Court to order confiscation under Section 452 Cr.P.C. does not merit consideration in view of the law settled by Hon’ble the Supreme Court in State of Karnataka v. J. Jayalalitha, (2017) 6 SCC 263 at para 565, wherein it has been held that in the absence of any provision in the Prevention of Corruption Act, excluding its operations to effect confiscation of the property involved in any offence thereunder the trial Court had power of confiscation under Section 452 of the Cr.P.C. Disproportionate assets were acquired by the accused person by commission of offence under the Prevention of Corruption Act, and I do not find any infirmity in the order of confiscation of the disproportionate asset by the learned Court below.
Under the circumstance the Judgments of conviction and sentence against Anosh Ekka and Smt Menon Ekka is affirmed. With regard to other appellant accused namely Jaykant Bara and Deepak Lakra and Gidyon Ekka, Roshan Minz and Ibrahim Ekka the Judgment of conviction is affirmed with modification of sentence.
FULL TEXT OF THE JUDGMENT/ORDER OF JHARKHAND HIGH COURT
1. All the three aforesaid Criminal Appeals (SJ) arise out of common judgment and sentence passed by learned Special Judge, CBI, Ranchi in R.C. No.04(A)/2010-AHD-R(B) whereby and whereunder, appellant-Anos Ekka has been convicted and sentenced under Sections 13(2) read with Section 13(1)(e) of the P.C. Act, 1988 (herein-after be called as P.C. Act) and Smt. Menon Ekka, Jaykant Bara as well as Deepak Lakra, Gidyon Ekka, Roshan Minz and Ibrahim 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 Anosh Ekka and Hari Narayan Rai. During the pendency of the case, further investigation was taken up by the CBI under the direction of this Court passed in W.P.(PIL) No.4700 of 2008 and WP (PIL) No.2252 of 2009, CBI vide order dated 04.08.2010 wherein direction was given to the CBI to take up investigation of Vigilance P.S. Case No.26/2008. The CBI after re-registering the case as R.C. No.04(A)/2010-AHD-R(B) submitted Charge-sheet no.02/12 dated 27.01.2012 under Section 109 IPC and 13(2) read with Section 13(1)(e) of the P.C. Act, 1988 against all the accused persons.
5. During check period from 10.3.2005 to 31.3.2005 Anosh Ekka had acquired assets worth 57.01 Crore, disproportionate to his known sources of income against the pre-check assets of Rs. 92,827/-. The property so acquired was invested in land as well as deposits in NSC’s KVP etc. A construction company in the name of M/s Ekka Construction Pvt. Ltd. was floated and registered with the Rural Works Department of the Govt. of Jharkhand as Class-I A Contractor without fulfilling the eligibility criteria to project the proceeds of crime as untainted income. After investigation the case was found true against accused Anosh Ekka of acquiring disproportionate assets to the known source of income in his own name and in the name of his family members and relatives and associates.
6. (I) Assets at the beginning of the check period i.e. on 10.03.2005 – (The assets which were declared by the accused on affidavit at the time of his nomination before the Returning Officer on 20.01.2005).
| Particulars of Assets | Value Rs. |
| In the name of Anosh Ekka | |
| Cash | 50,000 |
| Bank of India, Simdega (balance) | 827 |
| In the name of Menon Ekka, wife | |
| Cash | 22,000 |
| Bank of India, Simdega (balance) | 20,000 |
| Total | 92,827/- |
(II)- Assets at the end of check period i.e. on 31.03.2009 (only those assets are mentioned which were not available at the beginning of check period)
|
SI |
Particulars of assets | Date of acquisition | Value Rupees |
| In the name of Anosh Ekka | |||
| 1 | Valuation report No. 224 dt. 05.08.11 of Valuation Officer, Income Tax, Ranchi, regarding valuation of under construction House in front of Simdega Police Station | 2007-08 | 17,00,300/- |
| 2 | Certified copies of 6 registered sale deeds regarding purchase of land at Simdega received 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 made in 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 Bank 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 III Car Reg. No. JH01Z0001 purchased from M/s Jayshree Ford, Ranchi | 24.01.09 | 57,569/- |
| 13 | Valuation report no. 229 dt. 08.08.11 of valuation officer, Income Tax, Ranchi, regarding valuation of house in Hinoo, Doranda, Ranchi | 15.02.08 | 1,80,20,000/- |
| In the name of Smt Menon Ekka, wife | |||
| 14 | Time deposit Passbook of A/c no. 150101502 in Doranda PO | 12.03.07 | 3,60,000/- |
| 15 | Time deposit Passbook of A/c no. 150101504 in Doranda PO | 12.03.07 | 6,00,000/- |
| 16 | Time deposit Passbook of A/c no. 150101505 in Doranda PO | 12.03.07 | 6,00,000/- |
| 17 | Time deposit Passbook of A/c no. 150101506 in Doranda PO | 12.03.07 | 6,00,000/- |
| 18 | Time deposit Passbook of A/c no. 130102484 in Doranda PO | 07.12.06 | 2,00,000/- |
| 19 | Time deposit Passbook of A/c no. 130102403 in Doranda PO | 05.10.06 | 1,50,000/- |
| 20 | Time deposit Passbook of A/c no. 150101507 in Doranda PO | 13.03.07 | 96,000/- |
| 21 | Time deposit Passbook of A/c no. 150101503 in Doranda PO | 12.03.07 | 2,50,000/- |
| 22 | TD Passbook of A/c no. 130102506 in Doranda Post Office | 22.12.06 | 1,00,000/- |
| 23 | TD Passbook of A/c no. 130102507 in Doranda Post Office | 22.12.06 | 1,00,000/- |
| 24 | TD Passbook of A/c no. 130102508 in Doranda Post Office | 22.12.06 | 1,00,000/- |
| 25 | TD Passbook of A/c no. 130102509 in Doranda Post Office | 22.12.06 | 1,00,000/- |
| 26 | TD Passbook of A/c no. 130102510 in Doranda Post Office | 22.12.06 | 1,00,000/- |
| 27 | TD Passbook of A/c no. 130102511 in Doranda Post Office | 22.12.06 | 1,00,000/- |
| 28 | TD Passbook of A/c no. 130102512 in Doranda Post Office | 22.12.06 | 1,00,000/- |
| 29 | TD Passbook of A/c no. 130102513 in Doranda Post Office | 22.12.06 | 1,00,000/- |
| 30 | TD Passbook of A/c no. 130102514 in Doranda Post Office | 22.12.06 | 1,00,000/- |
| 31 | TD Passbook of A/c no. 130102515 in Doranda Post Office | 22.12.06 | 1,00,000/- |
| 32 | Bolero Camper Jeep No. JH01W6577
purchased from M/s Auto Plannate |
28.05.08 | 4,54,282/- |
| 33 | Bolero Jeep No. JH01W8077 purchased from M/s Auto Plannate Industry Pvt. Ltd., Dhanbad | 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 Bank of India, Kolebira Branch, 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 Jharkhand Gramin Bank, Balalong. | 6,49,440/- | |
| 37 | Balance in PPF Account no. 11443968454 in SBI, Simdega |
55,094/- | |
| 38 | Balance in SB A/c no. 491010110000061 in 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/- |
| In the joint names of Anosh Ekka and Smt. Menon Ekka | |||
| 45 | 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 |
06.05.08 | 6,42,823/- |
| 46 | Valuation report no. 228 dt. 08.08.11 of valuation officer, Income Tax, Ranchi, regarding valuation of house at Thakurtoli, Simdega |
2005-06 | 20,28,400/- |
| In the name of M/s Ekka Construction Pvt. Ltd., Directors Smt Menon Ekka, Jaikant Bara (now Deepak Lakra in place of Smt Menon Ekka) | |||
| 47 | Balance in Joint SB A/c no. 380302010156036 in Union Bank of India, Doranda, Ranchi |
7,023/- | |
| 48 | Tata Safari Car No. JH06H0001 purchased from M/s Kraft Auto Private Limited. This acquisition was financed by M/s Hindustan Credit Corporation, Main Road, Ranchi. Loan was repaid within a year. | 10,45,520/- | |
| 49 | Toyota CAMRY Car no. JH20A0001 purchased from M/s BEBBCO Motors Pvt. Ltd., Adityapur, Jamshedpur | 12.04.08 | 21,25,000/- |
| 50 | Four Tipper vehicles purchased from M/s JMA stores Pvt. Ltd.(Reg. No. JH09H6277, JH05S6277, JH10N 6277, JH11D6277 |
11.04.07 | 35,95,044/- |
| 51 | Hero Honda Motor Cycle No. JH01Y3988 purchased from M/s Shyama Automobiles Pvt. Ltd. Ranchi | February
2007 |
33,824/- |
| 52 | Tractor No. JH01R9377 purchased from M/s Fogla Auto Pvt. Ltd. Ranchi | 02.03.07 | 3,49,911/- |
| 53 | Verna CRDI(Sx) Car | 10.03.08 | 8,07,867/- |
| 54 | Balance in CD account no. 11443844053 at SBI, Simdega |
23,49,021/- | |
| 55 | Balance in current account no. 51991010000160 at Oriental Bank of Commerce, Doranda College, Ranchi | 7,51,149/- | |
| 56 | Certified copies of sale deeds of land purchased at Ormanjhi, chutia and Neori Vikas, Ranchi furnished vide letter no. 868 dt. 30.12.08 of Distt. Sub Registrar, Ranchi (including stamp and registration charges) | 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 and registration 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 | |||
| 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 stamp and 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/- |
| 65 | TD Passbook of A/c no. 5413189 in Sub Post office, HSG1, Simdega | 08.01.07 | 2,79,000/- |
| 66 | TD Passbook of A/c no. 5413190 in sub Post office, HSG1, Simdega | 08.01.07 | 2,24,000/- |
| 67 | TD Passbook of A/c no. 3333053004 in sub Post Office | 29.08.08 | 2,00,000/- |
| 68 | TD Passbook of A/c no. 130102402 in Doranda Post office | 05.10.06 | 1,50,000/- |
| 69 | TD Passbook of A/c no. 333053005 in sub Post Office, HSG1, Simdega | 29.08.08 | 2,26,000/- |
| 70 | TD Passbook of A/c no. 333053006 in Sub Post office, HSG1, Simdega | 29.08.08 | 2,00,000/- |
| 71 | TD Passbook of A/c no. 130102493 in Doranda Post office | 13.12.06 | 7,50,000/- |
| 72 | TD Passbook of A/c no. 130102502 in Doranda Post Office | 22.12.06 | 1,00,000/- |
| 73 | TD Passbook of A/c no. 130102503 in Doranda Post Office | 22.12.06 | 1,00,000/- |
| 74 | TD Passbook of A/c no. 130102504 in Doranda Post Office | 05.10.06 | 1,00,000/- |
| 75 | TD Passbook of A/c no. 130102505 in Doranda Post office | 22.12.06 | 1,00,000/- |
| In the name of Subhashish Ekka | |||
| 76 | Application for purchase of NSC (Reg. no. 4988) from Simdega Post Office. | 30.03.07 | 1,00,000/- |
| In the name of Ibrahim Ekka | |||
| 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 Registrar, Simdega | 16.11.06 | 13,65,048/- |
| 78 | JH01V001 Scorpio Car purchased from M/s Auto Plannate Indostry Pvt Ltd., Dhanbad | 15.01.08 | 9,81,836/- |
| 79 | Application for purchase of NSC (Reg. No. 10575) from Simdega Post Office | 30.03.07 | 1,00,000/- |
| In the name of Sandesh Ekka, son | |||
| 80 | Application for purchase of K\TP(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 K\TP (Reg. no. 10575) from Simdega Post office | 19.07.08 | 1,00,000/- |
| In the name of Nishant Minz | |||
| 82 | Application for purchase of K\TP (Reg. no. 10578) from Simdega Post Office | 19.07.08 | 1,00,000/- |
| In the name of Nisha Minz | |||
| 83 | Application for purchase of (K\TP 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 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 in Allahabad 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.
|
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, Adminstrator |
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 Office | 1,00,000/- | ||
| 32 | Amount paid for registration of Bolero Camper Jeep Reg. No. JH01W6577 |
936/- | Bolero Camper Jeep No. JH01W6577 purchased from M/s Auto Plannate Industry Pvt. Ltd., Dhanbad | 4,54,282/- | ||
| 33 | Amount paid for registration of Bolero Jeep Reg. no. JH01W8077 | 1,333/- | Bolero Jeep No. JH01W8077 purchased from M/s Auto Plannate Industry Pvt. Ltd., Dhanbad |
4,70,000/- | ||
| 34 | Income tax paid as per IT return | 10,00,000 | 4 RIP certificates (A/c no. 4632/72, 4639/72, 4633/72, 4641/72) each of Rs. 50,000/- of United Bank of India, Kolebira Branch, Simdega |
2,00,000/- | ||
| 35 | Income tax paid as per IT return | 50,00,610 | Balance in
Account no. 9190 in Bank of India, Khuntitoli, Simdega |
62,832/- | ||
| 36 | Income Tax paid as per IT return | 8,20,930/ | Balance in Account no. 3089 in Jharkhand Gramin Bank, Balalong. | 6,49,440/- | ||
| 37 | Income tax paid as per IT return | 66,316/- | Balance in PPF 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, Sushant Lok, phase I, Gurgaon (includes stamp and registration charges) | 71,02,000 /- | 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) | 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 | 7,98,433/- | ||
| purchase of land at Serumtoli, Chutia, Ranchi | ||||||
| 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 Safari Car No. JH06H0001 for purchased from M/s Kraft Auto Private Limited. This acquisition was financed by M/s Hindustan Credit Corporation, Main Road, Ranchi. Loan was repaid within a year. | 10,45,520/- | ||
| 49 | Amount paid for registration of Hero Honda CD Dawn M.Cycle Reg. No. JH01Y3988 | 1,973/- | Toyota CAMRY Car no. JH20A0001 purchased from M/s BEBBCO Motors Pvt. Ltd., Adityapur, Jamshedpur | 21,25,000/- | ||
| 50 | Registration and choice no. etc. charges for Verna CRDi(Sx) Car Regd. No. JH02L0001 | 55,625/- | Four Tipper vehicles purchased from M/s JMA stores Pvt. Ltd.(Reg. No. JH09H6277, JH05S6277, JH10N 6277, JH11D6277 | 35,95,044/- | ||
| 51 | Registration and choice no. etc. charges for Tata Safari Car Regd. no. JH060001 | 53,483/- | Hero Honda Motorcycle 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. 51991010000160 at Oriental Bank of Commerce, Doranda College, Ranchi | 7,51,149/- | ||
| 56 | Amount paid for registration and choice no. Scorpio Car Reg. No. JH01V0001 | 52,776/- | Certified copies of sale deeds of land purchased at Ormanjhi, chutia and Neori Vikas, Ranchi furnished vide letter no. 868 dt. 30.12.08 of Distt. Sub Registrar, Ranchi(includes stamp and registration charges) | 2,11,59,770/- | ||
| 57 | Total Rs. | 3,79,98,0 60/- | Certified copies of sale deeds of land purchased at Ormanjhi, Ranchi furnished vide |
7,99,254/- | ||
| letter no. 516 dt. 06.04.09 of Distt. Sub Registrar, Ranchi (includes stamp and registration charges) | ||||||
| 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) | 13,56,353/- | ||||
| 64 | Application for purchase of NSC Reg. No. 4987 from Simdega Post office | 1,00,000/- | ||||
| 65 | TD Passbook of A/c no. 5413189 in Sub Post office, HSG1, Simdega | 2,79,000/- | ||||
| 66 | TD Passbook of A/c no. 5413190 in sub Post office, HSG1, Simdega | 2,24,000/- | ||||
| 67 | TD Passbook of A/c no. 3333053004 in sub Post Office | 2,00,000/- | ||||
| 68 | TD Passbook of A/c no. 130102402 in Doranda Post office | 1,50,000/- | ||||
| 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 Registrar,
Simdega |
13,65,048/-
|
| 78 | JH01V001 Scorpio Car purchased from M/s Auto Plannate Indostry Pvt Ltd., Dhanbad | 9,81,836/- | ||||
| 79 | Application for purchase of nSC (Reg. No. 10575) from Simdega Post Office | 1,00,000/- | ||||
| 80 | Application for purchase of KVP(Reg. No. 10575) from Simdega Post Office. | 1,00,000/- | ||||
| 81 | Application for purchase of KVP (Reg. no. 10575) from Simdega Post office | 1,00,000/- | ||||
| 82 | Application for purchase of KVP (Reg. no. 10578) for Simdega Post Office | 1,00,000/- | ||||
| 83 | Application for purchase of (KVP Reg. no. 10579) from Simdega Post Office | 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/- |
17. 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 of the Check period i.e on 10.03.05 (A) |
Rs. 92,827 |
| Assets at the end of the check period i.e. on 31.03.2009 (B) | Rs. 15,93,59,416/- |
| Income accrued during the check period from 10.3.2005 to 31.3.2009 (C) | Rs. 2,90,53,934/- |
| Expenditure incurred during 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 been examined on behalf of the defence and Exhibits –A to C have been adduced on behalf of the defence.
12. The learned trial court found P.Ws. 5, 11, 14, 26, 20, 49, 21, 25, 30, 48, 50, 52, 53, 57, 58, 62, 75, 77, 79, 98, 100, 101, 102, 103, 105, 107 and 108 total 27 witnesses were formal in nature.
13. During course of trial, 141 defence witnesses were examined and the following documents have been adduced into evidence :-
Ext.-A : Valuation of Constructed house at Airport Road, Hinoo, Ranchi of
Smt. Menon Ekka, done on 07.10.2009.
Ext.-B : Certified copy of judgment of Money Suit No.36/2012.
Ext.-B/1 : Certified copy of decree of Money Suit No.36/2012
Ext.-C : Valuation of under construction house in front of Simdega Police Station of Anosh Ekka done on 14.10.2011.
ARGUMENT ON BEHALF OF THE APPELLANT in Criminal
Appeal no 326 of 2020
14. It is argued by Sri Jitendar Kumar Singh on behalf of the appellant that the total income during check 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 the prosecution and the report of the defence would have come to fore.
18. It is submitted that with regard to confiscation /forfeiture of assets to the tune of Rs.16,62,73,066/-, as there was specific 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 period ie on 31.3.2009, but the prosecution has failed to provide the asset details of these petitioners at the commencement of check period.
ARGUMENT ON BEHALF OF APPELLANTS IN CR. APPEAL NO.328 of 2020
22. The challenge to conviction proceeds mainly on the ground the income tax return filed by the appellant, has not been considered.
23. The presumption under Section 20 of the P.C. Act has got no application under Section 13(1)(e) of the P.C. Act and therefore, it was incumbent on the part of the prosecution to prove the charge beyond the shadow of all reasonable and probable doubt. The offence under Section 109 IPC shall not be made out without any evidence of the individual role of this petitioner.
ARGUMENT ON BEHALF OF THE CBI
24. It is submitted by the learned Counsel Sri Prashan Pallav on behalf of the CBI, that the evidence with regard to initial assets of the accused and his family members and the increase of assets are based on documents of unimpeachable character which have been 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 company through its Director Menon Ekka and Jykant Bara, but the same was undelivered because the company was not found on the given address which was provided by the accused.
ANALYSIS
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- 2 to 3,44-47 are certified copies of registered sale deed of plots of land;
c. Entries -4 to 7, are cash memos of arms purchased;
d. Entries- 8 to 10, 11 to 13, 15-32,35-40,47-48 are statement of account/pass books of bank deposits;
e. Entries 33-34 are invoice of vehicles purchased;
f. Entries-41-42 are NSC/KVP
28. Evidence of assets acquired in the check period in the name of M/s Motorist Inn, Director Menon Ekka and Jaykant Bara, is tabulated in table B as under,
a. Entry 85-87 Purchase of lands through 51 (23+11+17) number of registered sale deeds
b. Entry 88-89- Balance in Bank Accounts
c. Entry 90—Purchase of house
29. Evidence of assets acquired during the check period in the name of M/s Ekka Construction Pvt. Ltd, having directors Smt Menon Ekka, Jaykant Bara (now Deepak in place of Smt Menon Ekka) is tabulated in Table B as under:
a. Entries-49 to 54 are invoice of vehicles purchased.
b. Entries-55-56 Balance in CD Account.
c. Entries—57,58- certified copies of registered sale deed of plots of land
d. Entry-59- Valuation 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, 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 make those gifts. Most of the witnesses were farmers and it did not appeal to reason that gifts in cash will be made by them to the accused who was Hon’ble Minister at the relevant point of time. These gifts were not disclosed in the income tax returns and has come up for the first time at the trial stage. The learned trial court has assigned specific reasons for discarding and not accepting these gifts and source of income and this court is not inclined to differ with the view of the trial Court.
38. The valuation report (Ext 69,60/1) of the under construction building in front of Simdega Police Station to the tune of Rs.17,00,300/-has been disputed on the basis of a private valuation report of valuation Rs.8,97,270/- adduced into evidence on behalf of the defence and marked as Ext-C. PW-70 is the valuation officer of IT Department, Ranchi who has proved Ext 69 and 60/1 on behalf of the prosecution. The property was inspected in the presence of Menon Ekka and Jaykant Bara on 23.6.11 as per the CBDT norm. The trial court has noted infirmities in the private valuation report (Ext C) to discard it. The reason assigned are detailed and cogent and no fresh light has been shed in appeal to arrive at a contrary 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 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. ncrease 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-Rs. 3,11,82,814).
41. On the basis of the above, assets disproportionate to the known and legal sources of income will work out to Rs. 16,40,31,186 + Rs. 5,28, 880= Rs. 16,45,60,066. Accused Anosh Ekka failed to account and explain the astronomical growth of assets during the check period from Rs. 18,05,827 to Rs. 16,45,60,066. The percentage increase in disproportionate asset shall work out to 536.83% increase.
42. Once the prosecution had adduced evidence to show and establish disproportionate asset of the accused persons, it was incumbent on their part to explain the lawful source of income which they have utterly failed to do so. It has been held in State of Maharashtra v. Wasudeo Ram Chandra Kaidalwar, (1981) 3 SCC 199 that the expression “burden of proof” has two distinct meanings (1) the legal burden i.e. the burden of establishing the guilt, and (2) the evidential burden i.e. the burden of leading evidence. In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and that burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular 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 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 to know the affairs of an accused person. Those will be matters “specially within the knowledge” of the accused, within the meaning of Section 106 of the Indian Evidence Act, 1872 (in short “the Evidence Act”).
6. The phrase “known sources of income” in Section 13(1)(e) [old Section 5(1)(e)] has clearly the emphasis on the word “income”. It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term “income” by itself, is elastic and has a wide connotation. Whatever comes in or is received, is income. But, however wide the import and connotation of the term “income”, it is incapable of being understood as meaning receipt having no nexus to one’s labour, or expertise, or property, or investment, and having further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term “income”. Therefore, it can be said that, though “income” is receipt in the hand of its recipient, every receipt would not partake the character of income. Qua the public servant, whatever return he gets from his service, will be the primary item of his income. Other incomes which conceivably are income qua the 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 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 wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Illustration.—A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.
Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
46. From the above definition it is manifest that in order to prove abetment, the knowledge or intention on the part of the person accused of the offence need to be proved. Mental element being abstract can be only be judged by conscious act on the part of the person concerned. A man is presumed to know the natural consequence of his act. To “aid” and “abet” means to help, assist, or facilitate the commission of a crime, or to promote the accomplishment thereof, or to help in advancing or bringing it about. The word “abet” includes knowledge of the wrongful purpose of the perpetrator 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 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 the appellant Anosh Ekka and Menon Ekka does not require any interference by this Court and is accordingly affirmed.
49. However in case of Jaykant Bara, Deepak Lakra, Gidyon Ekka, Roshan Minz and Ibrahim Ekka a sentence of RI of five years and fine of five lakhs each shall meet the ends of justice. In default of payment of fine the convict shall serve a sentence of six months.
50. The argument questioning the power of the trial Court to order confiscation under Section 452 Cr.P.C. does not merit consideration in view of the law settled by Hon’ble the Supreme Court in State of Karnataka v. J. Jayalalitha, (2017) 6 SCC 263 at para 565, wherein it has been held that in the absence of any provision in the Prevention of Corruption Act, excluding its operations to effect confiscation of the property involved in any offence thereunder the trial Court had power of confiscation under Section 452 of the Cr.P.C. Disproportionate assets were acquired by the accused person by commission of offence under the Prevention of Corruption Act, and I do not find any infirmity in the order of confiscation of the disproportionate asset by the learned Court below.
Under the circumstance the Judgments of conviction and sentence against Anosh Ekka and Smt Menon Ekka is affirmed. With regard to other appellant accused namely Jaykant Bara and Deepak Lakra and Gidyon Ekka, Roshan Minz and Ibrahim Ekka the Judgment of conviction is affirmed with modification of sentence.
Cri. Appeal No. 326 of 2020 stands dismissed and Criminal Appeal Nos. 327 and 328 of 2020 are dismissed with modification in sentence as stated above.
