1992 ALLMR ONLINE 978
BOMBAY HIGH COURT
M.F. SALDHANHA, J.
N. P. Lotlikar Vs. C. B. I. and another
266 in Special Case No. 71 1986 of 1991
11th November, 1992
Petitioner Counsel: R. M. Nagwa, (original accused)
Respondent Counsel: M. P. Johri, Special Public Prosecutor (for No. 1) and D. A. Nalavade, A.P.P. (for No. 2), .
Prevention of Corruption Act (1947),S. 6 Prevention of Corruption Act (1947),S. 6 Prevention of Corruption Act (1947),S. 5(1)(e), Evidence Act (1872),,S. 3
1992 Cri LJ 527 : 1992 Supp (1) SCC 335 : AIR 1992 SC 604 : 1992 AIR SCW 237 (Referred) [Para 14]
(1992) Cri Writ Petn No. 854 of 1991, D/- 16-10-1992 (Bom) Ishwar Piral Kalpatri v. State of Maharashtra, (Rel. on) [Para 14]
AIR 1991 SC 397 : (1991) 1 SCC 500 : 1991 AIR SCW 34 (Referred) [Para 15]
1979 Cri LJ 633 : (1979) 4 SCC 172 : AIR 1979 SC 677 (Referred) [Para 18]
JUDGMENT :-This criminal appeal, which has been preferred by a Senior Superintendent of Customs, raises certain significant issues with regard to the law relating to corruption trials. Having regard to the fact that the questions were debated with a considerable amount of vigour and that the points canvassed are one of far-reaching consequence to the appellant-accused in this case, and to a large number of similarly situated public servants who are faced with proceedings of this type, it is necessary to deal with those aspects with some amount of elaborateness. The present appellant, who started his career almost half a century back in 1948 under the then Portugese regime, worked with the Customs Department at Bombay from 1954. Sometime towards the end of the year 1985, the Central Bureau of Investigation (hereinafter referred to as 'the C.B.I. Authorities') raided his house and seized various amounts of jewellery, documents etc. and thereafter continued with the investigations. The appellant, Shri N. P. Lotlikar, was at that stage of his career a Superintendent of Customs and was relatively close to retirement.
2. As inevitably happens, the C.B.I. Authorities froze the bank accounts not only of the appellant but of various members of his family. They seized every conceivable asset that they could lay, their hands on, which included not only his wife's jewellery but also fixed deposit receipts, investment certificates and the like, and after a rather detailed investigation obtained sanction to prosecute the appellant on a corruption charge. It was alleged against him that on a total computation of all the assets which the prosecution could attribute to him, valued at Rs. 16,11,879.65 p. that the Authorities had computed a likely saving of Rs. 3,09,220/- and it was, therefore, contended that he was in possession of assets of the aggregate value of Rs. 13,03,651/-, which were disproporationate to his known sources of income and that he was, therefore, liable under S. 5(1)(e) of the Prevention of Corruption Act, 1947. I have deliberately avoided a reference to one crucial aspect of the case, namely, the question as to whether the appellant could satisfactorily account for these assets or not because even though the charge proceeds on the footing that he could not satisfactorily account for them, it was common ground that at no stage of the investigation had he been asked to account for the assets that were found in his possession. The complaint came to be filed and the trial proceeded at which, like in all corruption cases, the prosecution led the evidence of 25 witnesses for purposes of establishing what the earnings of the appellant could have been, what assets he was found in possession of and what, according to the prosecution, constituted the assets which were disproportionate to his known sources of income.
3. It is essential in such cases for the accused to satisfactorily account for what he is found in possession of, in the course of the trial, and this case presents one of the very unusual situations where the accused, for the purposes of discharging that burden, led the evidence of as many as 32 defence witnesses and produced a large number of documents. Thereafter the appellant filed a detailed written statement giving an elaborate account of everything that was required of him starting from the point of time when he joined service in 1948 up to the time when the action was instituted against him. To the written
statement, the accused attached several documents, calculations and even computations prepared by his Accountant for purposes of pointing out to the Court that the essence of the charge against him, namely, that the capital and assets which were found in his possession could be accounted for and that the prosecution allegation that these had been acquired through illegal or corrupt channels was not justified. The record of this case is very voluminous. The learned trial Judge has taken the pains to analyse the evidence in some degree of detail. The learned trial Judge came to the conclusion that the prosecution had established the charge against the accused and the learned trial Judge rejected the defence evidence principally on the ground that it was unreliable and that it was of no consequence. Having held that the appellant had acquired substantial assets through corrupt means, the learned Special Judge convicted the appellant for the offence under S. 5(1)(e) read with S. 5(2) of the Prevention of Corruption Act and awarded a sentence of rigorous imprisonment for five years and to pay a fine of Rs. 2,00,000/-, in default, to suffer rigorous imprisonment for one year. It is against this conviction and sentence that the present appeal has been directed.
4. This appeal was admitted by my brother Moharir, J. on 19-1-1991. It was thereafter pointed out to the learned Judge on behalf of the appellant that he is in no position to pay the fine of Rs. 2,00,000/- that has been imposed on him and after hearing Counsel this Court stayed the operation of the sentence. Thereafter the appellant filed certain applications before the Court because he was seriously aggrieved by the fact that valuable items of family jewellery had not been returned to him in spite of Court orders. After hearing learned counsel, the return of the jewellery was ordered. The appellant thereafter filed a further application in which he pointed out that by virtue of the conviction that he is seriously prejudiced in the matter of receipt of his pension because he has since retired and, furthermore, that the C.B.I. Authorities had indiscriminately attached every bank account and other investments and, as in characteristic with these Authorities, that they had not even bothered to take the necessary follow-up action in order to avoid any loss accruing. Many of the investments had matured, but nothing was done in the matter. In the case of several others there were interest amounts that had accrued and there were several amounts of money that were lying uninvested. After hearing the appellant, who had appeared in person and who pointed out to me that having regard to the financial jam in which he has been placed that he cannot afford to engage a lawyer; I heard learned Counsel for the C.B.I. Authorities and the learned A.P.P., both of whom objected to any amounts, even in respect of old accrued interest, being released to the appellant on the ground that the entire corpus had been confisctated to the State and that unless the order in question is set aside, this Court would be wrong in ordering the release of any amount to the appellant. This places the appellant in a very peculiar position because, on the one hand, serious loss was accruing, whether it be to the appellant or to the Government, whoever would be the beneficiary of that amount, and on the other hand, an aged person faced with a serious charge was handicapped to a point that in a heavy appeal he was virtually left without legal assistance. This Court, therefore, was required to pass an order directing that every thing that had gone wrong with regard to the monetary investments be set right in the sense that all investments be treated as having been renewed under Court orders, and secondly, that a Counsel of some standing and experience be appointed as amicus curiae to conduct the appeal on behalf of the appellant. Since the prosecuting authorities had objected to the release of any amount and to any interim order being passed, there was no option except, having heard the matter for a considerable time, to take the appeal for final hearing and to dispose it of. It is in these circumstances that the appeal was placed on board and taken up for hearing. I need to prefix the judgment by complementing the
two learned Counsel who have put in an immense amount of labour in this preceding. Shri Naqwa, ld. Counsel appointed on behalf of the appellant by the State who, at very short notice, had studied the brief very thoroughly and minutely and researched the law, has done an admirable job. On behalf of the prosecuting authority, Shri Johri, learned Senior Counsel, has done an equally good task in so far as he has analysed the evidence, advanced submissions on all points of law and presented every conceivable argument, including some very novel angles, in the course of the hearing, to which I shall presently call a reference.
5. Shri Naqwa, learned counsel appearing on behalf of the appellant, has commenced his submissions by contending that the prosecution itself is stillborn on the ground that the sanction order in this case is not a valid sanction. To start with, Shri Naqws contended that the authority who accorded the sanction, namely, the then Collector of Customs at Bombay was not the competent authority to accord sanction. The argument proceeds on a hyper technicality because it is pointed out from the appointment order of the appellant that he was appointed by the then Portugese regim in the territory of Goa which, at the relevant time, did not form part of the Union of India. Shri Naqwas contended after Goa became part of India that the services of the appellant were transferred to the Bombay Customs where he continued to serve and he, therefore, submitted that in these circumstances, the Collector of Customs of Bombay was not competent to accord sanction for the prosecution because at the highest if the appellant at the time of the take-over of that territory is deemed to have become as servant of the Government of India that it is the Government alone that is competent to sanction prosecution against him. Shri Johri has countered this contention by pointing out that the appellant was very much an employee of the Customs Department, that he was working under the jurisdiction of the Collector of Customs, that he was governed by the Central Civil Services (Classification, Control and Appeal) Rules, applicable to all other similarly situated Customs Officers and that consequently, the Collector in his capacity as head of the Department was empowered to grant the sanction and that it was erroneous to contend that merely because the appellant-accused was originally appointed prior to the take-over of that territory by the Portugese Government that he was in any way differently situated in law from the other employees of the Department. I do not need to elaborate on this issue because admittedly after 1954, the appellant was very such an employees of the Government of India and of the Customs Department and he was serving under the Collector of Bombay and, therefore, the Collector of Customs did possess the requisite jurisdiction in respect of disciplinary proceedings or, for that matter, for purpose of according sanction to prosecute the appellant. The Collector, who has accorded the sanction, Sukumar Mukhopadhyaya (P.W. 15), has stated that he had the authority to remove the appellant from service since the appellant was working as Superintendent under him. The Collector was cross-examined and he has admitted that he was not very sure of the rule under which he possessed the requisite powers, but that he had proceeded on the assumption that such authority was vested in him. The defence did not seriously challenge this position, but in order to set the matter at rest, Shri Johri has shown to me the schedule in the relevant rules whereunder the Collector of Customs was, in fact, the competent authority to accord the sanction. There was, therefore, nothing wrong on the part of the C.B.I. Authorities in having applied to the Collector for the grant of sanction.
6. The Collector, Sukumar Mukhopadhyaya (P.W. 15), has produced at Exhibit 101 the sanction order dated 24-12-1986 that was accorded by him. There is a very serious challenge to the legal validity of this sanction order because Shri Naqwa, on the one hand contends that the sanction order is liable to be
struck down on the ground that it has been accorded without due application of mind and his second contention is that the sanction order itself is bad in law because of certain inherent infirmities. Shri Johri has stoutly defended this sanction order and has maintained that the learned Special Judge, who has carefully considered it, has rightly accepted it as a good and valid sanction order. It is essential for me to consider the arguments advanced from different asects.
7. The first of these is the challenge on the ground that there has been no due application of mind. I do not need to point out that the sanction order in question contains the usual recitals and that the Collector, when he gave evidence, stated that on a careful consideration of the material he was of the view that the appellant deserved to be prosecuted on a corruption charge. What is in issue is not the question as to whether the authority, as stated above, possessed the requisite power to sanction the prosecution, but the issue as to whether the authority did, in fact, apply his mind to the facts of the case and whether the learned Special Judge was justified in upholding the validity of the order on this ground. To start with, the sanction order dated 24-12-1986 is a verbatim reproduction be the draft sanction order that was put up to the Collector by the C.B.I. Authorities. Shri Naqwa submitted that if the Collector in question had so much as studied the facts of the case that he could never have bodily reproduced the draft sanction order word for word and signed it, and he contends that the reason for this is because the computations put forward before the Collector by the prosecuting authorities in the draft were erroneous. He states that there were several glaring omissions in the draft sanction order and that a Government authority of the rank of Collector of Customs if he had so much so taken the trouble to read that draft sanction order would have immediately noticed the errears or rather blunders in question. That these errore were not corrected, that no modifications were made and that the draft sanction order was retyped and signed is, according to Shri Naqwa, the, strongest evidence of the fact that this was a mechanical reproduction of the draft sanction order without any application of mind whatsoever. Shri Johri has, while defending this order on this aspect of the matter, pointed out to me that there is a prescribed form in which a sanction is required to be accorded if it is to be valid and acceptable sanction order, that the prosecuting authorities are familier with this nomenclature and, therefore, it is perfectly in order for the prosecuting authority to submit a draft sanction order to the sanctioning authority. Shri Johri is right as far as this contention is concerned, but it is noteworthy that nobody has found fault with the prosecuting authority for submitting the draft sanction order. What is faulted is with regard to the procedure that took place thereafter. Shri Johri has reinforced his arguments by submitting that it is now well settled law that a sanctioning authority is not required to give reasons in support of his conclusion that the delinquent public servant is liable to be prosecuted. This argument is also faultless though I need to observe that it is equally well settled law that the wording of the sanction order must be such that on a plain reading of that order a Court should be satisfied that the sanctioning authority at the point of time when the sanction was accorded had arrived at a subjective satisfaction that the case warranted a prosecution. Merely stating that the authority had gone through the paper and arrived at a satisfaction, etc., etc., and thereafter padding up the position by a parrotlika reproduction in the witness-box will not in all cases be good enough.
8. It has been pointed out times without number that there exists a very distinct difference between an ordinary citizen and a public servant who is sought to be prosecuted in relation to acts discharged by him in his officer capacity and that unlike a citizen in whose case no sanction is required for prosecution, a public servant is completely immune from prosecution in the absence of a valid sanction order. There is a distinct and a definite purpose behind making such a sanction condition precedent and it is
unnecessary for me to recount the verious situations in which a public servant, more so if he happens to be in the position of a good police officer or an enforcement officer, will be vulnerable to attacks on multifarious grounds and it is for this precise reason that the law has provided a bar to prosecutions unless the grounds on which the public servant is to be prosecuted are independently scrutinized. That function is vested in the head of the Department who is expected to act with a sense of responsibility and who is expected to discharge his functions judiciously. Once a sanction is accorded, it is virtually a point of no return so far as the public servant is concerned because the consequences are inevitable. Apart from the action taken by the prosecuting authority, so far as the career and reputation of the public servant are concerned, the damage is irreparable and it is for these reasons that a grave responsibility vests on the sanctioning authority. Under these circumstances, if it is demonstrated that the authority verbatim copied out the draft sanction order, a grave doubt would arise in the mind of the Court as to whether at all the authority has done any appraisal. The form of the sanction order apart, it is, indeed, difficult to accept that the sanctioning authority would use every word and syllable in the identical manner in which the prosecuting authority had done. Starting from this premies, one would need to scrutinize the sanction order in question.
9. The sanction order proceeds with the averment that the appellant joined the Customs Department as a Shed Supervisor at Goa on 6-3-1954. The entire salary drawn by him from that period up to the date of the prosecution has been ascertained by the Investigating Officer and a total of Rupees 2,53,989.34 Ps. has been recorded under the first head. Thereafter, under the second head, overtime allowance received has been computed as Rs. 27,160/-. heads 3, 4, 5 and 6 deal with interest on S. B. Account, interest of F.D. Rs., Cash reserve, house rents, house construction loan, which I shall not deal with for the time being. The Collector of Customs, Sukumar Mukhopadhyaya (P.W. 15), who was dealing with the draft sanction order had before him the case of an employee of his Department who, on the C.B.I. Authorities' own showing, and put in 31 years of service in the Department. Undoubtedly, salaries wore much lower in these days, but even to a layman if he had taken the trouble to do a commonsense appraisal of the figures placed before him, it would have been quite apparent under head No. 2 that it was, prima facie, absurd to contend that the allowance should have been less than Rs. 1,000/- for each year of service. The sanctioning authority happens to be the Collector of Customs, he was a departmental man obviously he had been in service through that period and he had a definite indication of what salaries and allowance were payable. Quite apart from his personal knowledge, the contradictions between the figures in columns Nos. 1 and 2 ought to have straightway been as clear as day light to any responsible officer who had taken the trouble to judicially scrutinize the figures in question. To my mind, there is little doubt about the fact that this could never have been done. The appellant has illustrated in the course of the cross-examination by pointing out to the Collector himself that he had not taken the trouble to verify these figures, but more importantly by annexing a detailed tabulation to his written statement that the figure of overtime allowance received was not only incorrect but that it was very much lower than that it ought to have been. An attempt was made by summoning defence evidence to establish that the appellant had, in fact, received a much higher amount as and by way of overtime allowance.
10. In this context, the appellant has demonstrated that there were certain other heads that have been ignored by the prosecution in relation to the overall pay packet of an employee of the Customs Department. One of the specific heads is the uniform allowance. Shri Johri tried to submit that this is a relatively small amount and that even if it was not computed, it should be ignored because it can never assist the appellant in bridging the
gap of about Rs. 13,00,000/-. That argument is, to my mind, not only fallacious, but is irrelevant. The fact of the matter is that the investigating officer was duty-bound, when dealing with the heads of known sources of income, to have gone through the records and to have computed up to the last rupee correctly and completely as to what the total emoluments of the accused were. In his written statement, the accused has annexed a table wherein he had pointed out how much the amounts under these particular heads would, in fact, came to. The appellant has pointed out that for the period between 1963 and 1985, the overtime allowance and the uniform allowance alone would come to Rs. 70,161-50 Ps. and it is clear from the sanction order that the prosecution has undervalued this head by well over three quarters of lac of rupees - this is significan.t
11. The accused was working as a Preventive Officer in the Customs Department and it is a well-known fact that in such capacity, apart from his salary, allowances, etc., that he is entitled to receive rewards in relation to seizures, evasion of revenue and such other situations. It has come on record in this ease that the appellant was entitled to and has, in fact, received such rewards which he has brought out in the defence evidence and has also brought out in the course of his written statement where he has given the exact details of the orders in which he has received these amounts. They total up to several thousands of rupees, but what is of more importance is that there are amounts that could easily have been ascertained from the records of the Customs Department and that there was no difficulty whatsoever in computing the same. Even if the Investigating Officer had overlooked or suppressed these details, if the Collector or any of his subordinates who were concerned with the grant of sanction, had so much as studied the draft sanction order or the case papers, they would have found out that these heads have been totally excluded and, furthermore, what is of greater significance is the fact that they were not very small amounts and that they were amounts received by the appellant a very long time back. One cannot overlook the fact in cases of this type that even a few hundreds of thousands of rupees earned 30 or 35 years ago would virtually multiply and the record does indicate that the accused was in the habit of investing his money in the best possible avenues and in these circumstances there can be little dispute about the fact that over a period of 20, 30 or 40 years that the amounts would have multiplied by as much as 30 to 40 times their original values. This, to my mind, was a basic flaw because the Collector accorded the sanction in the year 1986 in respect of an employee who had put in 32 years of service in the Customs Department alone and, therefore, there is no excuse whatsoever for the exclusion of these amounts. Had they been included, the entire complexion of the case would have changed because the Collector would have had to take a realiatic view of what, in fact, the earning and assets that could be crystallised out of those earnings over a period of time over three decades was, and the huge gap that the prosecution alleges against the appellant may not have existed.
12. The Collector of Customs, Sukumar Mukhopadhyaya (P.W. 15), has been, in the course of his cross-examination, asked as to whether he had found out as to what were the earning of the appellant prior to the point of time that he joined the Customs Department, Admittedly, this witness had not enquired about this. The Investigating Officer has happily proceeded the assumption that this aspect of the case can be ignored. It was left to the accused to lead defence evidence in order to establish that between the years 1948 and 1954 for a period of full six years that he was gainfully employed and that too in Government service, first in the River Navigation Department and then with the Postal Departmental at Goa. The defence evidence led by the accused conclusively establishes this fact and there are even references to the salary that was drawn by him at that stage. The matter assumes some importance because Shri Johri had argued that the term "known sources of income" as interpreted by
the Courts presupposes income, such as salary, allowances, etc., and that the prosecution cannot be forced or expected to find out other sources of income which the authorities would normally not have been in the knowledge of. Accepting this position and the fact that the Investigating Officer carried out detailed enquiries and investigations at Goa, there is no excuse for the prosecution to have ignored the total earnings of the appellant between the year 1948 and 1954. These were admittedly salaries and allowances drawn by him as a Government employee and not in any private concern and a simple inquiry with the accused or, for that matter, with his employers at Goa would have immediately indicated to the Investigating Officer as to what the income during that period was. Shri Johri has underscored this aspect of the matter by drawing my attention to the fact that even if the evidence of the defence is accepted, all that has come on record is that the appellant was drawing a salary of about Rs. 60/- during those days. What Shri Johri has overlooked is that the purchasing power of the rupee and the money value being what it was, the real equivalent of Rs. 60/- will have to be rationally evaluated and accepted. Secondly, in this case where the appellant has stated that considering that he belonged to Goa, that he had his home and family there and that he came from a relatively affluent backward, that all his earnings were virtually investible in so far as he has his house and source of livelihood available; one needs to take cognizance of the fact that those total earning over a period of six years would have in the manner in which the accused used to invest the savings, multiplied numerous times and would have greatly added on to his known sources of income and assets in the year 1986.
13. Having regard to the fact that these crucial aspects have been not only overlooked but ignored, it would be difficult, to my mind, to accept the contention of the Customs Collector, Sukumar Mukhopadhyaya (P.W. 15), that he had applied his mind judiciously to the facts of the case. One presumes that the authority concerned was an officer who knew his job and under these circumstances had he applied his mind he could never have overlooked those crucial aspects of the case which virtually stare one in the face. Not having taken cognizance of these factors, to my mind, it will have to be held that this is a clear indication of total non-application of mind on the part of the sanctioning authority.
14. I have not gone into the question of evaluating the various other facts and figures and heads that are set out in the sanction order because, to my mind, the aforesaid of the matter are absolutely crucial. In addition to this, the sanction order itself suffers from a fatal infirmity in so far as there is not recording of satisfaction by the sanctioning authority that the appellant has either failed to account for the assets that were ascribed to him or, for that matter, that he could not account for them. I have had occasion to deal elaborately with this aspect of the matter while disposing of Criminal Writ Petn. No. 854 of 1991 in the case of Ishwar Piral Kalpatri v. The State of Maharashtra decided on 16-10-1992. It is unnecessary for me to reproduce the findings recorded in that judgment. Suffice it to say that after discussing the law on the point threadbare, I have held that the sanction order as a document and as a quasi-judicial order, which is the cornerstone of a corruption trial, must be able to stand on its own footing even as far as the conclusions/findings are concerned. In the present case, there is no such finding. As indicated by me earlier, it is common ground that the accused was never given an opportunity to satisfactorily account for. He was never even issued a show cause notice or memo by either the sanctioning authority or, for that matter, by the Investigating Officer. In the absence of such an opportunity being afforded to the accused, the question of his failing to satisfactorily account for or not being able to account for just does not arise. I have held in the case cited supra that the rules of natural justice apply as much at this stage
of an investigation as they do to the other departmental proceedings and that considering the fact that under S. 5(1)(e) of the Prevention of Corruption Act the inability to Satisfactorily account for being the essential gravamen of the charge, that in the absence of the accused being afforded the opportunity to do so, the sanction order itself would stand vitiated. The Supreme Court in a recent decision in the case of State of Haryana v. Bhajanlal, 1992 Supp (1) SCC 335 : (1992 Cri LJ 527), had occasion to observe that it is the failure to satisfactorily account for such possession of pecuniary resources or property which is disproportionate to the known sources of income that is objectionable. It is not merely acquisition that constitutes the offence. Under these circumstances, if one were to presume that the sanctioning authority had done the elementary evaluation of the necessary ingredients of the charge under which he was sanctioning a prosecution, he ought to have recorded a finding that the appellant could not satisfactorily account for the assets in question. If the accused had never been asked, to account, the conclusion was impossible. This, to my mind, was the fundamental error that has been committed in this case and it is principally on this ground that the sanction order in question will have to be struck down.
15. While deciding Criminal Writ Petn. No. 854 of 1991, this Court had occasion to deal with another aspect of the law with regard to the procedure that is required to be adopted in relation to an offence under S. 5(1)(e) of the Prevention of Corruption Act. Since the essence of the offence is that the accused could not account for the disproportionate assets or that he failed to account therefor, this Court has taken the view that such inability or failure, which is one of the basic ingredients for holding that an offence has been committed, can be said to have been established only if the accused was called upon to account for and either he did not or could not satisfactorily account for the assests in question. It was held in that decision that the sanctioning authority at the earliest point of time cannot be said to have acted correctly on law in the absence of such an opportunity being afforded to the accused if the authority has accorded sanction for a prosecution. With regard to this aspect of the matter, Shri Johri has advanced an interesting argument which I consider necessary to deal with. It is his contention that regardless of t60he nature of the discreet enquiries that may be conducted by the Investigating Authority that at the stage when the raid is carried out and the authorities seized from the accused, and from several other areas, incriminating documents or property that the accused most certainly is aware of the fact that investigations into a corruption charge are being carried out. It is the contention of Shri Johri that it is open to the accused to come forward to the investigating agency and to fully account for the property and to convince the agency that there is no ground to proceed further against him. Shri Johri also submitted that similarly it is open to the employee to represent to the sanctioning authority that no sanction ought to be accorded because he could fully account for all the assets that are held against him. Shri Johri submitted that this would be the conduct of an honest public servant against whom the authorities may have wrongly proceeded pr may have proceeded on the basis of complaints which they believed to be true and that nothing stops the employee at the point of time from approaching the concerned authorities and accounting for the assets in question. It is the submission of Shri Johri that even if the sanctioning authority or, for that matter, the investigating officer did not formally call upon the accused to account for the assets that nothing prevented the accused himself from accounting for the same instead of waiting until the trial had commenced. On the face of it, this argument is valid and one cannot find fault with it. It is certainly open to an accused person to come forward and to object to the grant of sanction, but one does not know the situation in which the accused is placed and the question as to whether such application or representations made by him would at all receive proper consideration. I am basically concerned with
an entirely different aspect of the matter, namely, the obligation or duty that is cast on the prosecuting authority. To my mind, as held in Criminal Writ Petn. No. 854 of 1991, the accused must be asked to account for at a stage prior to the registration of the offence. I have held that once the offence is registered, virtually a point of no return is reached. In that Criminal Writ Petition, where the Investigating Officer asked the accused to account for certain property long after the offence had been registered, a plea was taken up that the petitioner was already in the legal position of a person accused of a serious offence that, therefore, the protection under Art. 20 of the Constitution would be available to him and, in any event, he could not and would not make any statement at that point of time as the same may be used against him. I have had occasion there to deal with the perallel proceedings relating to disciplinary enquiries and to point out that prior to the date of commencement of actual action that it is customary to issue a memo or a show cause notice asking the accused to answer the proposed charges against him and if no satisfactory explanation is forthcoming, it is certainly open to the authorities to proceed. To my mind, there is a distinct advantage in following this procedure because at that stage the time available is extremely short and it would certainly be difficult for the accused to involve himself in the exercise of fabricating evidence or of producing any false material. If a long period of time elapases, there is ample scope for such cover-up action. Viewed at from this point of view also, it is highly desirable, therefore, that the explanation should be called for at the earliest point of time.
16. As far as the sanctioning authority is concerned, I have already had occasion to observe that unlike the case of a common citizen, a public servant by virtue of his functions is naturally exposed to attacks and villifications from various quarters and regardless of what report the prosecuting authority may put up, it is the duty of the sanctioning authority to independently examine the material before granting sanction. To my mind, having regard to the fact that in case after case it is found that the sanction is almost mechanically accorded, hereinafter the authorities to whom such application for the grant of sanction is made shall make it a condition that no sanction shall be accorded without referring the matter back to the employee concerned. It will not hurt the sanctioning authority to issue a letter or a show cause notice to the public servant concerned with a brief summary of the material that has been proposed to be used against him and to ask him to show cause as to why sanction ought not to be accorded. This will give the accused concerned ample opportunity to place before the sanctioning authority whatever material there is in his possession to fortify his innocence. It would also compel the sanctioning authority to go into what has been produced before him and to thereafter judiciously decide as to whether the case should be proceeded with or not. This would be very much in consonance with the rules of natural justice and, to my mind, therefore, this procedure shall be followed in all cases hereafter. The Courts, perhaps, did not have occasion to issue such directions in the past and to that extent in those of the matters where sanction has already been accorded, the same shall not be called into question merely because this procedure has not been followed.
17. In this context, Shri Naqwa has relied on a decision of the Supreme Court in the case of Mohd. Iqbal Ahmed v. State of A.P., (1979) 4 SCC 172 : (1979 Cri LJ 633), wherein the Court has laid down the salutary principle that there should be sufficient material before the Court for holding that the sanctioning authority must be shown to have applied its mind and the Court had concluded with the observations : "Any case instituted without a proper sanction must fall because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab intitio." Shri Naqwa also placed reliance on one more decision of the Supreme Court in the case of Abhay Shridhar Ambulkar v. S. V. Bhave, (1991) 1 SCC 500 : (AIR 1991 SC 397), wherein the Supreme Court once again
reiterated the position that a mere reproduction of the ingredients or averments is insufficient and that there should be cogent evidence before the Court for purposes of holding due and valid application of mind.
18. I have dealt, at some length, with the procedural law in relation to the accord of sanction and the duties of the prosecution at the pre-trial stage for purposes of deciding as to whether these requirements have been complied with. I need to observe here that Shri Johri did point out to me that this case is distinguishable from Criminal Writ Petn. No. 854 of 1991 in so far as in the present proceedings, the entire trial has been completed. Shri Johri's contention was that even if for whatever reason the accused was not asked to show cause either by the Investigating Officer or by the sanctioning authority that he has had a full and adequate opportunity to do so in the course of the trial. Shri Johri pointed out to me that the accused has produced as many as 32 defence witnesses and that he has thereafter followed this up by filing a very detailed written statement annexing several documents and calculations. The learned trial Judge has meticulously examined everyone of the defence witnesses and documents and has recorded, in terms, that these are unworthy of credit and that, therefore, the accused cannot be said to have satisfactorily accounted for. Shri Johri, therefore, contended that as far as the present case is concerned the question as to whether the accused ought to have been given an opportunity or not to show cause prior to the stage of the trial is rendered academic because he has, in fact, been afforded that opportunity during the trial. It was his submission that if the accused has failed to account for, then the validity of the trial cannot be questioned merely on the basis of a procedural flaw, even assuming that one existed. As far as this argument is concerned, to my mind, one needs to approach from the point of view that if a legal duty is cast on the prosecuting agency and on the sanctioning authority to afford an opportunity and if that opportunity is not afforded, it would be a breach of the principles of natural justice as held in the decision referred to supra. It is now well-settled law that an action that proceeds in breach of the principles of natural justice cannot stand the test of legal scrutiny; this is not merely academic theory - it is fundamental illegality. I shall, however, deal with the matter on merits because it was Shri Johri's next contention that if the accused is otherwise guilty on facts, he should not be permitted to get away on the basis of a mere technicality. The trial has proceeded, evidence has been evaluated and, in the course of this appeal, both learned counsel have argued the matter also on merits. I shall, therefore, very briefly deal with that aspect of the matter also. Suffice it to say that even though the present case is slightly distinguishable from the former, to my mind, it would not make much of a difference.
19. As far as the prosecution evidence is concerned, the learned Special Judge has dealt with it in some degree of detail. I have gone through the paper-book, the evidence has been read and the documents in question have been debated and questioned. The learned trial Judge has accepted the evidence produced by the prosecution for purposes of holding that the accused was, in fact, in possession of various assets that were ascribed to him. Briefly stated, these consisted of a house at Caranzalem, Goa, on which he is alleged to have spent an amount of Rs. 2,55,000/-. Secondly, there is a flat at Vasco valued at Rs. 43,500/-. Thirdly, there is a flat at Porvoriam valued at Rs. 98,000/-. Fourthly, there is a plot on which the house is standing valued at Rs. 13,080/-. The balance in the S. B. Accounts in banks is Rs. 3,63965 Ps. The assets in the form of F.D. Rs., N.S.Cs., Unit Trust Certificate, shares, etc., total Rs. 10,32,623/-. Gold jewellery is collectively valued at Rs. 1,23,012/- and house- i hold articles valued at Rs. 44,025/-. All of them make up a total of Rs. 16,11,879-65 Ps. The prosecution alleges that the accused had received an aggregate of six heads from known sources of income and that the same total Rs. 4,36,948-79 Ps. According to the computation appearing in the sanction order,
1. House expenses including kitchen items, clothing, books and stationary for the children, shoes, electricity charges, etc.Rs. 1,00,000/-2. Maintenance of flat at Vasco, Goa.Rs. 4,024/-3. Interest and other miscalleneous charges paid to Goa Housing Board, Goa.Rs. 1,308/-4.Over payment towards modification for flat at Porvoriam, Goa. (Not refundable).Rs. 19,000/-5. Spent over trip to Tamil Nadu (only fare)Rs. 3,276/-6. House tax for house at Caranzalem, Goa.Rs. 112/- Rs. 1,27,720/-
Out of the total income, after deducting the possible expenses, the prosecution allege that the accused could not have accumulated anything more than Rs. 3,09,228.79 Ps. as possible savings. It is this figure that is deducted from the computation of total assets and it is, consequently, that the accused is charged with being in possession of disproportionate assets to the tune of Rs. 13,02,651/-.
20. In sum and substance, it is for these assets that the accused is alleged to have failed to account for and stands convicted. I do not need to reproduce the prosecution evidence in detail because it has by and large been accepted by the accused even in his written statement with a few reservations. For instance, the accused disputes the correctness of the figure of Rs. 2,55,000/- which he is alleged to have spent on the house property and to this extent he has called into question the evidence of Balkrishna Pai (P.W. 3). That factor will have to be borne in mind.
Secondly, accused has questioned the correctness of the jewellery evaluation done by Deepak Mahajan (P.W. 18). It is the case of the Accused that almost all the jewellery that was seized from his residence belongs to Shrimati Lotlikar and that a small part of it belongs to her sister Shrimati Kenkare, who had kept some bangles and earrings with Shrimati Lotlikar for safety. Shrimati Kankare has given evidence and pointed out which of the jewellery was hers and the learned Special Judge has discarded her evidence on the ground of total falsity, but, more importantly, on the ground that Shrimati Kankare being a close relation that she is bound to support her sister's husband. I am rather amazed to read the reasoning because Shrimati Kankare is the sister of the wife of the accused and if she had kept her jewellery with her sister, the jewellery being a few bangles and a few ear-rings, etc., of modest value, I do not see anybody else except Shrimati Kankare who could come forward to give evidence for the purpose of claiming these items. Shrimati Kankare has been cross-examined and nothing has emerged in the cross-examination to shake her credibility.
21. Under these circumstances, having regard to the law as it exists, a Court would be duty-bound to accept that evidence and act on it rather than to discard it merely on the ground that the lady is related to the wife of the accused. That apart, the arguments advanced on behalf of the accused by Shri Naqwa as far as the evidence of Deepak Mahajan (P.W. 18) is concerned requires to be upheld. Shri Naqwa has made a serious grievance of the fact that the jewellery was taken to a particular jeweller for the purposes of valuation and that his client was not allowed to remain present at that time. He has also pointed out that there was no justification to have had the old family jewellery published for the purpose for making it look like new. Regardless of these two minor objections, what was argued as far as the valuation is concerned is the fact that admittedly the ornaments were not of recent margin and that Deepak Mahajan (P W. 18)
has admitted in his cross-examination that he did the valuation on the basis of gold prices that were prevalent in December, 1985. There is, therefore, much substance in the grievance made before as that the jewellery has been grossly overvalued. I find considerable support as far as this is concerned from the admission given by this very witness in cross-examination that gold prices were very much lower in the preceding years and he has, in fact, given some of the figures. Under these circumstances, the figure of Rs. 1,23,012/- is most certainly an extreme over-estimation.
22. The accused does not dispute the fact that the jewellery in question was seized from his residence. He has pointed out that this jewellery consisted of items which fall under three heads. Dealing with the first of them to my mind, there is no reason why the evidence of Shrimati Kenkare (D.W. 16) should be discarded as far as her jewellery is concerned. As far as the second head goes, evidence has come on record through several of the defence witnesses that Shrimati Lotlikar had received gold jewellery by way of Stridhan of the approximate value of 21 tolas at the time of her marriage several years back. These witnesses again have been cross-examined and I shall have occasion to deal with this evidence once more, but from that has been pointed out and from the probabilities of the case, there is no reason why one cannot hold that Shrimati Lotlikar was, in fact, presented with gold jewellery as and by way of Stridhan at the time of her marriage. The record gives fair indication of the economic status of the accused and of Shrimati Lotlikar. She is an Indian housewife and it is quite customary in this country to present the bride a certain amount of jewellery at the time of marriage. As far as the third head is concerned, the accused has produced documents through the defence witnesses to establish that many years back he had purchased from the Portuges authorities in Goa 20 tolas of gold for which the learned Special Judge has accepted the evidence and given him the credit. Under these circumstances, it is necessary for me to point out that the valuation of the entire amount of Rs. 1,23,012/- in the assets or the accused was completely and throughly uncalled for. There is sufficient material on record to hold that none of the gold jewellery was either purchased by him and that the same constituted the personal property of Shrimati Lotlikar and her sister Shrimati Kankare and to this extent, therefore, column No. 7 from the list of assets would have to be completely eliminated.
23. Shrimati Nalini Churi (P.W. 11), who was the salary clerk, has given evidence in a typical cavalier fashion by pointing out that she has merely brought some statements which completely excludes the rewards, and the salary and allowances for some periods are not mentioned in the statement. In order to get over this difficulty, the prosecution examined Waman Cri (P.W. 17), who is a clerk who came forward with computation relating to the overtime allowance. When his attention was drawn to several blanks in the statements that were produced by him, he sought to get over them by stating that the accused was attached to different Sections, namely, airpool, and that this is the reason why these figures were not available and are not included. Suffice it to say, therefore, that as far as heads Nos. 1 and 2 in the sanction order are concerned that the same do not represent the correct picture. That the overtime allowance was excluded along with several items, such as uniform allowance, which have not been added on has already been dealt with, but I need to further add that as indicated at the intitial stage of this judgment, it was also pointed out that the entire salary drawn by the accused during the period 1948 and 1954, which spans as many as six years during which time he was a Government servant under the then Portugese regime, has also been excluded. The net result of this state of affairs would be that the income of Rs. 4,36,948.79 Ps., which has been treated as the income from known sources is an incorrect figure and the same would have to be substantially raised. It is unnecessary for me at this stage to go through the exercise of arriving at the exact figure for the reasons that shall illustrate presently.
24. Jagannath Naik (P.W. 20), an accountant from Goa, who belongs to the Customs Department, stated that the records in relation to the overtime allowance payable for a period of ten years between 1966 and 1976 were not traceable. He also admitted the fact that the accused had received rewards, but that these records were also not available. One more witness Alexander Game (P.W. 22) has confirmed that arrears that were awarded pursuant to revision that because applicable after the Pay Commission had made its recommendations had, in fact, been paid to the accused. He has also admitted the fact that uniform allowance was received by the accused.
25. Lastly, Prabhakar Shinde (P.W. 24), the Investigating Officer, has admitted that in the course of his investigations, he did come to know that the accused was employed with the River Navigation Department and the Postal Department at Goa prior to his joining the Customs Department, Shri Johri has contended that the law a quite clear to the effect that the prosecution is obliged to compute under the heads from known sources only the amounts that the prosecution could reasonably and normally find out under the different heads that are to the knowledge and notice of the prosecution. It is towards this end that the Investigating Officer was cross-examined for purposes of ascertaining as to whether or not in the course of his investigations he came to know or not that the accused was, in fact, employed earlier during the period 1948 to 1954. I am conscious of the fact that the period in question is so far back in point of time that it may have been difficult for the authorities to find out what exactly were the emoluments. However, since the Departments in question are very much in existence, the appropriate figures would always have been available.
26. Another grievance that was made was that since the Investigating Officer has, in fact, visited Goa and carried out investigations and since there were as many as four properties from Goa belonging to the accused that he ought to have ascertained as to what the income from those properties, in fact, was. Secondly, the accused has contended that there are several items of agricultural produce, such as coconuts, fruits, etc., from which he derived substantial tax-free income every year, that the amounts add up to something sizeable, and a grievance is made that these items, which were quite apparent to any person, ought not to have been excluded from the known sources of income. The Investigating Officer has also admitted the fact that Shrimati Kankare, who is the sister of Shrimati Lotlikar, did, in fact, come forward with a claim to some of the items of jewellery which she claimed to be hers. As indicated by me earlier, each of these heads do make a very significant difference to the ground total that was arrived at, and the defence was fully justified in its grievance that this being a criminal trial, the figures in relation to the known sources of income of the accused were not correctly computed. Much more is expected from the C.B.I. Authorities and it cannot get away with such faulty figures.
27. The learned Special Judge has devoted a greater part of the judgment to a consideration of the defence evidence. This is one of the unusual cases where the defence has led the evidence of as many as 32 witnesses. I shall briefly, in passing, refer to the evidence of these witnesses.
28. Vinayak Nadkarni (D.W. 1) does not require any consideration because he deposes about the purchase by the accused of 20 tolas of gold, which evidence has been accepted by the trial Court. Augustins Mascarenhas (D.W. 2) and Prakash Karne (D.W. 3) respectively established the fact that the accused was, in fact, employed with the River Navigation Department as also with the Post Office in Goa. This supports the defence theory that the accused was, in fact, gainfully employed prior to 1954 when he joined the Customs Department. Vithoba Naik (D.W. 5) is an advocate and he has stated that he had paid to Shrimati Lotlikar a sum of Rs. 5,000/- as advance and that he was paying a sum of Rs. 1,000/- per month for occupying her new
flat at Porvorin. As I shall presently point out, this witness is one of the several defence witnesses who has come forward with the evidence that they had occupied the properties of the accused at some point of time or the other. I shall deal with the evidence of these witnesses collectively because, to my mind, they did not require any individual consideration. Manohar Surlekar (D.W. 6) states that he had taken one of the rooms on rent for sometime on a payment of Rs. 425/- per month. Rajaram Parab (D.W. 7) states that he has stayed in the house belonging to the accused for sometime at a rent of Rs. 180/- per month. Vithal Navalkar (D.W. 9) states that he had rented the house initially for Rs. 200/- per month and thereafter for Rs. 250/- per month. Sudarshan Patil (D.W. 13) states that he had rented a flat of the accused at Vasco for Rs. 500/- per month and that the payments in question were made by cheques. Suhas Sawant (D.W. 25) has also deposed to having occupied the Vasco flat for sometime on payment of Rs. 500/- per month. Dr. Ulhas Savkar (D.W. 20), who is a doctor, had occupied the rear portion of the house for a rent which started at Rs. 180/- per month and was gradually increased and finally stood at Rs. 500/- per month. Sagoon Chandelkar (D.W. 30) refers to his having occupied one of the out-houses initially for Rs. 150/- per month, thereafter for Rs. 300/- per month and then for Rs. 450/- per month. This witness also deposes about the agricultural income that accrued from the property in question.
29. The learned Special Judge, while dealing with this head relating to the amount that the accused has accounted for in his elaborate written statement under the head "income from various house properties", has discarded the evidence of all the witnesses and the principal reason given by the learned Special Judge is that since these witnesses deposed to having occupied the properties in question for various periods of time that they were obliged to have produced some documentary evidence, either by way of agreements or by way of rent receipts or, at least, simple receipts for payment and, further more, that in almost all the cases except one or two that the payments were made in cash and not by cheques and, having regard to this state of affairs, that there is no valid reason why their evidence should be accepted. Shri Johri pointed out that it is too much to expect that each and every person who is alleged to have occupied the properties at different times is able to come forward and depose with such precision as to how much they exactly paid and as an illustration Shri Johri pointed out to me that D.W. 5, who is an advocate, is alleged to have been paying as much as Rs. 1,100/- per month for occupying the flat when he had barely three years' practice and when, admittedly, he was not even an income-tax payer. He, therefore, submitted that the learned Special Judge was fully justified in having rejected the evidence. As far as this aspect of the matter is concerned, I have given some anxious consideration to it. In the first instance, the record conclusively indicates that the accused did, in fact, possess the four properties in question. Secondly, it has come on record that the accused and his family were not occupying those properties. Under these circumstances, it is only reasonable to assume that the premises would have been rented out either for a short or for long periods of time for some consideration. The figures that have been referred to by the various witnesses have been carefully evaluated by me and I do not see anything unreasonable in any of these figures having regard to the rooms, flats, part of the house or the type of the property that was occupied by the witnesses. The question remains is as to why the amounts in question were always paid in cash. It is a normal requirement that rents are required to be tendered in cash and barring exceptional circumstances, to my mind, there is nothing wrong if small amounts varying between Rs. 200/- to Rs. 400/- were paid in cash. It has been demonstrated that the amounts were paid by cheques where companies were involved. Regardless of this fact, the corresponding records of the various banks, however, in terms, indicate that the amounts in question have been accounted for. The
period of time during which these various places were occupied are relatively distant and it must be said to the credit of the accused that he was able to locate the persons concerned and to persuade them that it was essential to come and give evidence. I also need to point out that even in situations where evidence is essential, there is the general tendency, or reluctance to come and depose before Courts of law, particularly in situations of the present type which involve a C.B.I. prosecution. To my mind, none of these persons would have run the risk of giving evidence had they not occupied the properties and not paid the rents. Shri Naqwa is justified in pointing out that in cases of casual or short term letting complications are always avoided and that formal agreements and rent receipts are dispensed with. The non-production of these documents would not be good enough ground to reject the evidence of this entire bunch of witnesses. They have all been cross-examined and there is no valid reason that emerges from their cross-examination on the basis of which their testimony can be called into question. Under these circumstances, to my mind, the rejection of the evidence in question was erroneous, the same with have to be accepted and in respect of this income he would be entitled to credit.
30. Digambar Dabholkar (D.W. 8) has deposed to the fact that he had purchased from Shrimati Lotlikar a pair of diamond ear-tops for a sum of Rs. 50,000/- and a diamond locket for a sum of Rs. 65,000/-. The prosecution has seriously assailed the correctness of this transaction. The evidence of this witness will have to be considered along with the evidence of Kirtikumar Jani (P.W. 14). This witness has produced a valuation certificate issued to Shrimati Lotlikar dated 22-2-1984. The certificate is on the letter-head of the firm and is at Exhibit D-30. The letter-head states that the firm has been appointed valuers by the Government of India for gold, silver, diamonds, etc., and that they were also "Government Authorised Gold Dealers". This certificate indicates that the estimated value of the ear-tops was Rs. 48,000/- and the value of the locket was Rs. 48,220/-. The witness has been cross-examined and the line adopted was that the certificate in question has been anti-dated. There is nothing that has emerged from the evidence on the basis of which the Court can conclude that those items of jewellery were not in existence or that Shrimati Lotlikar did not get them valued with the jeweller in February 1984. The existence of those items of jewellery with Shrimati Lotlikar is, therefore, established. The learned trial Judge has rejected this evidence principally on the ground that it is a mere certificate that can always be issued at the request of the accused and that there are no corresponding documents or entries that could inspire confidence in this certificate. Shri Johri submitted that the items in question were not casual items of jewellery, but that they must have been relatively special pieces of jewellery as they were valued at approximately at Rupees 1,00,000/- that under these circumstances the valuer ought to have produced some documents or contemporaneous record in the absence of which the Court ought not to accept a stray piece of paper, such as Exhibit-D-30. Had there been a requirement that in cases of valuation requisite registers and records have to be maintained, this argument could certainly have been pressed into operation. Unfortunately, there is no such requirement and if Shrimati Lotlikar has gone to the witness and asked for a valuation certificate which after examining the jewellery he issued, it would be physically impossible for him to produce any other record other than identifying original certificate. Nothing has emerged of any substantial value in the cross-examination on the basis of which I can legitimately discard this evidence.
31. Coming back to the evidence of Digambar Dabholkar (D.W. 8), who is the person who is alleged to have purchased the ear-tops and locket for Rs. 50,000/- and Rs. 65,000/- respectively, his evidence has been discarded because the learned trial Judge holds that it is impossible to accept that such a large amount of money would have
been paid in cash without obtaining any receipts and, furthermore, since the witness is unable to produce any documentary records to support the transaction in question. Shri Johri did point to me that it was thoroughly absurd to accept that any person who was purchasing the jewellery in question and who would have been obviously shown the valuation certificate which indicated the value at Rs. 96,000/- to pay as much as Rs. 10,000/- to Rs. 15,000/- more than that figure for the jewellery that was not brand new. Shri Naqwa sought to counter the argument by pointing out that old jewellery has a value and attraction of its own and that it was quite obvious that Digambar Dabholkar (D.W. 8) desired to buy these old pieces of jewellery which are virtually collectors' items and cannot be proved only on the basis of their gold and diamond content. He states that if Shrimati Lotlikar secured a higher price than the valuation certificate that the obvious explanation was that the certificate had indicated a very modest or, perhaps, the realistic figure whereas what Shrimati Lotlikar ultimately got what was in keeping with the real market value. It is impossible to debate the reasons behind why a customer would pay a price for specialised items of this type, but what requires to be scrutinized is the question as to whether the witness was the person who possessed the means to produce over a lac of rupees in exchange for the ornaments. I have, therefore, after hearing Shri Johri, re-read the evidence of this witness carefully. He indicates that they had substantial sources of income from various heads including fishing contracts and that they did possess the requisite funds to purchase the jewellery in question. What I find from the line of cross-examination was that it is true that the veracity of the witness has been tested and that the question whether at all the transaction has taken place has also been vigorously questioned, but the all important aspect whether at all the witness purchased the items has not been disputed. Admittedly, when the raid took place all the jewellery belonging to Shrimati Lotlikar was seized and these items did not find place in the jewellery at that time. It is, therefore, obvious that the items had been sold. There are also corresponding entries in the requisite books of account indicating that these amounts of money had been received. Under these circumstances, to my mind, it would be difficult to doubt the transaction. I am conscious at this stage of one aspect of the matter which Shri Johri very rightly pointed out to me that the burden of accounting for the assets does shift to the accused and it was for this reason that he was required to lead evidence and produce material to satisfy the Court. It is, however, necessary for me to take note of the position in law that unlike the duty cast on the prosecution where proof has got to be beyond reasonable doubt, in the case of the accused, he has got to establish through a preponderance of probabilities that the evidence produced is acceptable to the Court. Even in corruption cases, the presumption of innocence does not disappear nor does the basic principle of criminal law that if a plausible explanation is put forward by the accused which fits in with the facts and circumstances of the cases that the Court is duty-bound to accept that explanation.
32. There is another head under which the accused has pointed out that certain items of silver were sold to Sadanand Madkholkar (D.W. 18). Admittedly, this witness is a gold and silver-smith and is dealing in items of this type. It is his case that in May 1985, he and his father had gone to the house of the wife of the accused at Goa. He states that in the month of June of that year some silver utensils were shown to them and that they had purchased the silver utensils. The document (Exhibit D-33), which is an extract from the bill book, has been produced in support of this transaction whereby two amounts of Rs. 25,600/- and Rs. 15,000/- are alleged to have been paid for the silver utensils in question. The evidence of this witness has also been discarded by the learned Special Judge once again on the ground that except for the piece of paper (Exhibit D-33) that there is nothing on record to indicate that Shrimati Lotlikar possessed the silver in question or that the
witness, had purchased the same. Also, this is a cash transaction and in the absence of any receipt or any contemporaneous document, the evidence has been discarded. A perusal of the original (Exhibit D-33) does indicate that it is an old document and that it is a genuine document. It does not appear to have been fabricated, The witness has also come forward to own up the transaction. Under these circumstances, even if we were to scrutinize all that has emerged in the cross-examination, to my mind, there was no sufficient material on record to have called this transaction into question.
33. The defence had also examined Balkrishna Ajrekar (D.W. 21). This witness states that as far as the flat at Porvorin is concerned that since he was in need of a flat he had negotiated with Shrimati Lotlikar and paid various amounts to her, but that after he came to know of the problems faced by the accused with regard to the present case that he backed out of the transaction and the amount of Rs. 1,10,000/- was repaid to him. As far as the evidence of this witness goes, the learned Special Judge has rejected the evidence principally on the ground that there is no agreement that is produced and, furthermore, on the ground that the whole of the transaction is a cash transaction. Shri Johri pointed out that at least in this case documents ought to have been produced because the witness for his own security could not have paid the amount of money against an immovable property without entering into an agreement for sale and, more importantly, without having obtained stamped receipts for the payments made by him if the same were in cash. He, therefore, contended that in the absence of any document, the evidence of the witness who states that after the transaction was completed and the amount was repaid the documents were torn up could not be accepted. On normal probabilities, Shri Johri is right in so far as a Court may reasonably assume that a transaction of this type would not be proceeded with unless there were documents in relation to each stage of the transaction. The only difficulty that we are faced with is the fact that the transaction itself did not materialise and that the same was revoked. The witness admits that the entire amount was repaid to him. Under these circumstances, since the transaction did not come through, it would not be unreasonable to accept the explanation that when the money was repaid that whatever documents relating to the transaction were destroyed by the parties
34. I do not propose to deal with some of the other defence witnesses who have been produced, but one head requires consideration because the accused has contended that he had given to Waman Kamat (D.W. 19) a loan in the sum of Rs. 32,000/- in all and that this witness had repaid to him a total of Rs. 1,00,000/- against the loan in question. Waman Kamat is an agriculturist and from the description of his property given in his deposition, one may reasonably assume that he is a well-to-do person. It appears that he was friendly with the accused and that he had borrowed some money on the assurance that he would repay the loan. As often happens, over a period of time, the total amount of Rs. 32,000/- was not repaid and the accused insisted that the accrued interest should be added on and that is how the amount compounded. The witness admits that after the overall period of eight years against the loan of Rs. 32,000/- that he had repaid an amount of Rs. 1,00,000/-. There are no documents produced in support of this transaction which is the principal reason why the learned Special Judge has discarded it. Secondly, the learned Special Judge and, in particular, Shri Johri, in the course of his Rs. 32,000/- and that even assuming that some interest was chargeable on it, it is too much to accept that the witness would have repaid as much as Rs. 1,00,000/- against the loan. The accused has given an elaborate calculation in his written statement whereby he has pointed out how the rate of interest was amount had compounded because the loan
had not been repaid for several years. According to the computation that has been given, the witness was liable to repay the sum of Rs. 1,00,000/- which he has, in fact, done. The loan was a cash transaction and the repayment was also a cash transaction. The witness has got over this difficulty by pointing out that he has an agricultural income of a substantial amount and that, therefore, he had taken the loan in cash and repaid the loan in cash. I do not dispute the fact that the matter may not be above suspicion, but the situation that we are faced with is that the witness has come forward before the Court, he has given evidence on oath and he has owned up the transaction. He has been cross-examined and I do not find good enough ground from the cross-examination or from the record of the case on the basis of which the transaction can be ignored, merely because some suspicion is cast, the transaction cannot be rejected in toto.
35. The last substantial head that I am required to deal with is the family business that the accused has referred to. In support of this transaction, the accused has examined his brother who is Shridhar Lotlikar (D.W. 10). He has pointed out that he is a resident in Goa. He has also pointed out several other important aspects of the case, one of them being that their family possessed certain amount of Jewellery which has thereafter devolved on the wives of the different members of the joint family. He has also pointed out that he was in charge of running the family business at Goa and according to him the accused used to hand over to him as and by way of capital for the running of the business initially the whole of his salary and thereafter from time to time various amounts. He has deposed about the nature of his business. He has indicated what his turnover is and he has been cross-examined in relation to the evidence that has been given by him. He was to produce certain records in relation to the business which he has not done and the reason given by him was that there was a situation when the house had collapsed and the records in question got destroyed. This is his explanation for non-production of the old record. The total amount that the accused seeks to account for under this head comes to approximately Rs. 4,00,000/-. The learned Special Judge has outright rejected this evidence. Shri Johri has analysed this evidence very carefully and, to my mind, very competently also. He has pointed out that when a witness comes forward to account for such a large amount of money and when he is aware of the fact that he is deposing before a Court of law, he ought to substantiate whatever he is saying by producing necessary records. Shri Johri contends that even if some part of the record is alleged to have got destroyed in the course of the house collapse, that he could have produced some documents in support of his deposition and the total absence of any document whatever would leave us with the position that the witness, who is the brother of the accused, could easily be held guilty of giving false evidence to support his brother, who is facing a serious charge.
36. As regards the consideration of this witness, the position that I am faced with is that, admittedly, this witness is residing at Goa. The fact that he is doing business is also not disputed. Obviously, the Investigating Officer had gone to Goa in the course of the investigations at which stage he must have contacted and examined at least some of the family members, particularly Shridhar Lotlikar (D.W. 10). At that point of time, no investigation seems to have been done with regard to the question of the nature of the turnover of the business and the verification as to whether or not it was a family business. In the absence of any evidence to the contrary, one cannot dispute the fact that Shridhar Lotlikar (D.W. 10), who is resident at Goa and who is doing business, could well have been running the joint family business. We are concerned here with an overall period of nearly 35 years and an average of Rs. 10,000/- per year from source does not appear unreasonable. There are several corresponding entries in the various bank statements, investments, etc., from which the various
figures that have been set out by the accused in the defence statements are completely supported and corroborated. The learned Special Judge appears to have overlooked this crucial aspect of the matter. Under these circumstances, having regard to the limited burden that is cast on the accused, I am unable to uphold the findings of the learned Special Judge under this head.
37. Shri Johri thereafter advanced another submission which is of some consequence and which I am required to deal with. He drew my attention to S. 13 of the new Prevention of Corruption Act, 1988 and to the provisions therein that the accused, who is a public servant, shall not be permitted to explain or to account for assets/investments that have not been declared in consonance with the rules and the laws with which he is governed. Admittedly, the accused was a public servant and, therefore, he was bound by the Conduct Regulations. Shri Johri pointed out in all fairness that it is true that the accused is charged under the old Prevention of Corruption Act, 1947 in which there is no such specific provision, but he is right in contending that the principle could certainly be pressed into application. For this purpose, Shri Johri drew my attention to Rule 15 which prohibits the carrying on of private trade or employment. Rule 16 prescribes the giving, lending, borrowing, etc., of various amounts of money and to rule 10 which requires that a full declaration of all assets, including bank deposits, etc., have to be filed. It is Shri Johri's contention that items such as the sale of diamonds, jewellery or silver-ware and several other heads that have been made out did not find place in the declaration made by the accused. Similarly, the repayment of the loan of Rs. 1,00,000/- also does not find place. Shri Johri contends that to the extent that all these transactions are in breach of the Conduct Regulations that the Court should not take any cognizance of them.
38. In reply to this argument, Shri Naqwa has contended that the restrictions that are placed have got to be read in the context of the various explanations to the rules in question. As regards the income from the family business, Shri Naqwa seeks to argue that it is outside the ambit of Rule 15 because the accused was not carrying on any business himself. He further contends that the restrictions under Rule 15 would not at all be applicable because the spare amount which the accused could afford to give to his brother cannot be construed as a business transaction at all because it was solely within the framework of a loan to a member of the family. Regarding Rule 16, Shri Naqwa pointed out that the rule prescribes transactions that are within the local area of the public servant concerned and transactions that are directly or indirectly connected with his job functions and are likely to embarrass him in the discharge of his official duties. He contends that the amount given by the accused to Waman Kamat (D.W. 19) could not, under any circumstances, come within the ambit of Rule 16 and for this purpose he had drawn my attention to certain clarifications issued by the Government. As regards Rule 18, Shri Naqwa contends that the items which are stridhan or personal property of the wife of the accused are clearly excluded from the ambit of Rule 18 and that under no circumstances can they be included in the assets of the accused. For this purpose, he has drawn my attention to certain provisions in the rule and the explanation thereto. The matter does not appear to be free from doubt. In this proceeding, I am not inclined to decide as to whether the accused has committed a breach of the Conduct Regulations by including or excluding these transactions. Suffice it to say that there is much that can be said in favour of the defence raised by Shri Naqwa. In any event, to my mind, even assuming the accused has breached some of the Conduct Regulations, this is not the forum for action against him. Shri Naqwa sought to point out that a departmental enquiry for this very purpose was held and that the accused was cleared and, therefore, that aspect of the matter assumes finality. Under these circumstances, I do not consider it necessary to record any finding under this head.
39. I have already held that the present proceeding stands vitiated by virtue of the fact that the sanction order in question is liable to be struck down and that the requisite procedure prescribed by law was not followed. Regardless of that aspect of the matter, I have already evaluated the case on merits because the trial Court has gone through that exercise and, to my mind, this Court would be failing in its duty to have by-passed that important aspect of the case.
40. On a total consideration of the material placed before me, I am unable to hold that the accused has failed to satisfactorily account for the properties and for the other assets that were found to be in his possession. Under these circumstances, the findings of the learned Special Judge are liable to be set aside. The appeal is accordingly allowed. The conviction and sentence recorded against the accused as also the order for confiscation and the perjury notices are set aside.
41. As regards the various items of property, fixed deposit receipts, etc. are concerned, this Court has earlier issued certain directions to the institutions in question because it was pointed out to this Court that certain defaults had occurred in those of the cases where the amounts had matured, that neither has the interest been paid, nor has the principal been renewed. A direction was, therefore, issued that the amounts shall be treated as having been renewed and the Registrar was instructed to take appropriate steps in consonance thereof to ensure that this was done. Accordingly, the deposits shall all be treated as having been renewed. In the view that I have taken, the order passed by the learned Special Judge for confiscation of all items that were held to be disproportionate on the part of the accused is set aside. Further, the learned Special Judge has directed the issuance of notice to some of the defence witnesses to show cause as to why action for having given false evidence should not be taken against them. Having re-evaluated that evidence, I am of the view that such notices are unnecessary and the order in question is set aside.
42. Shri Johri, learned Counsel appearing on behalf of the Department, has submitted that this is a case of some importance and that the issues that have been decided in this case have far-reaching consequences. Under these circumstances, he contends that the department would require to consider its position and, if so advised, to carry the matter in appeal. He, therefore, prays that reasonable time be granted for consideration of the judgment and for the Department to approach the Supreme Court, if so advised. Having regard to the length of the judgment, the complexities of the case, and, above all, the time-factor that is involved, the operation of this judgment shall be stayed up to 31-1-1993 or until such time as orders are obtained from the Supreme Court only if such date is earlier. In the event of the Department proceeding higher, they shall be obliged to give to the accused written notice of at least 10 (ten) days before applying for any orders from the Supreme Court. In the event of no orders being obtained by 31-1-1993, the stay shall stand automatically vacated.
43. Shri Naqwa points out to me that there are substantial amounts that have accrued as and by way of interests, all of which are lying dormant either with the Court authorities or with the institutions or banks, etc. He makes a strong plea that as far as the accrued interests up-to-date are concerned that the same should be paid over to the appellant-accused. I have pointed out in this judgment the pathetic circumstances in which the accused is placed and the fact that he has been pushed backwards to a distressing situation whereby he was even unable to afford lawyer's fees and this Court was required to appoint an advocate amicus curiae. At the earlier point of time, the submission of the Department was that the interest accrued thereon is automatically confiscated by virtue of the confiscation orders that covered the principal amounts. The order of conviction and the order of confiscation have now been set aside. As far
as the principal amounts are concerned, I do concede that in the event of the Department desiring to carry the matter further that the status quo ante may require to be maintained for sometime. This, however, will not preclude this Court from releasing to the appellant-accused the interest, particularly since the order of conviction has been set aside. Under these circumstances, it shall be open to the appellant-accused to claim the payment of all amounts of interest that have accrued either from the institutions concerned or from the authorities with whom the same are lying on production of a certified copy of the operative part of this judgment and the same shall be paid to him forthwith.
44. As regards the items of jewellery, I have held that these are items of personal jewellery belonging to Shrimati Lotlikar and Shrimati Kenkara. Shrimati Kenkara has claimed some part of the jewellery as belonging to her, but the same was not returned to her earlier. Having conclusively held that the jewellery belongs to Shrimati Lotlikar and Shrimati Kenkara, I do not consider any justification good enough to retain these valuable items of family jewellery with any of the Court Departments. We have come across instances where valuable items of jewellery have been misplaced or lost, in the recent past, and items of family jewellery which are irreplaceable cannot be subjected to such a risk. It is, therefore, directed that the Registrar, with whom the jewellery is at present lying, shall draw up an inventory containing a complete description of the jewellery and its weight, that this inventory shall be drawn up in the presence of the advocate of the appellant-accused and the Investigating Officer or his representative and that the same be returned to the respective claimants, namely, to Shrimati Lotlikar as also to Shrimati Kenkara, on their executing a bond to the effect that they shall not sell, dispose of or part with possession of that jewellery and that they will produce the same if called upon to do so under the orders of the Supreme Court. The bonds so executed shall be valid until 31-3-1993. It shall be open to the claimants to approach the Registrar of the Court concerned on production of a certified copy of the operative part of this judgment and the jewellery shall be returned forthwith
45. As regards the professional charges payable to Shri Naqwa, having regard to all relevant circumstances, the same are computed at Rs. 1,500/- per day or part thereof, for every hearing since his appointment. The office shall compute the same and pay the fees to Shri Naqwa within a period of 30 days. It is essential, however, for me to pass an unusual direction, namely, that in view of the overall economic circumstances of the appellant-accused, though he was temporarily hard pressed and required assistance, that it appears just that he reimburses to the Registrar of the High Court the entire amount paid to Shri Naqwa as professional charges and that this be done latest by 31-3-1993.
46. I have had occasion, at the beginning of this judgment, to refer to the two learned Counsel, Shri Naqwa and Shri Johri, both of whom have put in an immense amount of labour in the face of an abnormally heavy and complicated record and in also having very competently and effectively dealt with the various points of law that are involved in this case. The performance and efforts of both learned counsel are required to be commended.