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IN THE COURT OF

THE SPECIAL JUDGE, C.B.I., ASSAM,ADDITIONAL COURT NO.1,

CHANDMARI, GUWAHATI.

Special case no. 14/2010

CBI

Vs

Sunder Lal Kanojia ............... Accused.

Present :

Sri Raktim Duarah, AJSSpecial Judge, CBI, Assam.

Date of framing charge : 20/7/2012.

Dates of recording evidence : 14/08/2012, 13/09/2012, 19/11/2012,

17/12/2012, 18/12/2012, 18/01/2013,

11/02/2013, 08/03/2013, 11/04/2013,

08/06/2013, 08/07/2013, 16/08/2013,

09/10/2013, 07/11/2013, 30/01/2014,

06/03/2014, 11/06/2014, 21/07/2014,

22/07/2014, 23/07/2014, 28/08/2014,

29/08/2014, 30/08/2014, 09/09/2014,

31/10/2014, 20/11/2014, 07/04/2015,

05/05/2015, 05/06/2015, 06/06/2015,

03/07/2015.

Dates of hearing : 30/07/2015 and 05/08/2015.

Date of Judgment : 13/08/2015.

Advocate for the Prosecution : Mr. Basudeb Prasad, Learned Special Public

Prosecutor, CBI.

Advocate for the accused : Mr. B. M. Chaudhury, Learned Advocate for the

accused.

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JUDGEMENT

Brief facts of the case :

1. The prosecution case in brief is that on the lone accused Sri Sunder Lal

Kanojia, sometimes referred to as Sunder Lal also, (hereinafter referred to as

‘the accused’) was serving as the Assistant Engineer, Civil Wing , Postal

Department, Assam Circle, Guwahati in the Year 2010. He was also acting as

the Executive Engineer, In-Charge at that relevant period. It is the allegation

against the accused that he collected a sum of Rs. 6,00,000/- (approx.) from

various contractors illegally and was heading towards Allahabad by train on

22/5/2010. On receipt of the said allegation from a source by the CBI, a

Surprise Check was conducted in the morning of 22/5/2010 in the Sampark

Kranti Express in the Guwahati Railway Station by which the accused along

with his wife Smti Vimala @ Bimala Kanujia was about to travel to Allahabad.

The check was jointly carried out by the CBI officials along with the Railway

Vigilance, Government Railway Police Officials and Independent witnesses/

JSC members.

2. During the joint Surprise check a sum of Rs. 6,31,000/- was recovered from

the possession of the accused as well as his wife and several other materials

such as mobile, personal diary, identity cards, medical registration cards etc.

were also recovered from their possession and from the baggage carried by

them. Consequently,an FIR(Ext-90) was lodged by the Sri H.C.Nath,the then

HOB, CBI, ACB, Guwahati on that day itself u/s 13(2) r/w 13(1)(e) of the

Prevention of Corruption Act, 1988 and the matter was endorsed to Sri

T.K.Nath,(PW 36)the then Inspector of Police, CBI, ACB, Guwahati for

investigation. The same was registered as RC 072010A0009 and the case

was investigated by said Sri T.K.Nath, Inspector of Police, CBI, ACB,

Guwahati(hereinafter referred to as ‘the IO’ or ‘PW36’,wherever appropriate)

and after the Joint surprise Check, the accused was arrested immediately on

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that day itself and was produced before the court on the next day

i.e.23/5/2010.

3. During the course of investigation the I.O recorded the statements of

witnesses, searched various places including the office and houses of the

accused both in Guwahati and his native places and seized many documents

and money from the residential houses belonging to the accused as well as

the wife of the accused. On completion of the investigation, the IO submitted

Final Report against the accused u/s 13(2) r/w 13(1)(e) of The Prevention of

Corruption Act, 1988.

4. According to the Final Report(Ext-97) forwarded to the court by the DIG &

HOB, CBI,ACB, Guwahati dated 29/7/2011(Ext-98),it was alleged that the

accused accumulated assets quantified to the tune of Rs. 21,60,479/- during

the check period from 01/04/1995 to 22/05/2010 i.e 15 years, which is

disproportionate to the known source of income of the accused by 34.7%. It

was alleged that the accused accumulated the aforesaid huge assets by

illegal means abusing his official capacity the source of which, he could not

explain satisfactorily.

5. The accused being a public servant was summoned by the court to appear

pursuant to the filing of the Final report as well as the grant of prosecution

sanction by Sri Chandra Prakash, Member (Technology),Telecom

Commission, Department of Telecommunications, Sanchar Bhawan, New

Delhi (PW1) , allegedly being the competent authority to remove the accused

(although disputed by the accused during the trial on the ground that he was

not the removal authority of the accused).

6. Charge was framed against the accused on 20/7/2012 u/s 13(2) r/w 13(1)(e)

of The Prevention of Corruption Act, 1988. It may be pertinent to mention

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herein that although in the Final Report, the alleged disproportionate asset

accumulated by the accused during the check period was shown to be Rs.

21,60,479/-only, but during the time of framing charge, it was revealed that

the amount should be Rs. 13,22,664/- only and the error occurred as a result

of arithmetical and/or clerical calculations. Accordingly, the charge was also

framed taking consideration of that amount only and explanation of the

charge was also made to that effect. As per the said alteration, the ratio of

the alleged disproportionate asset to the total income during the check

period, of the accused, reduced to 20.58% from 34.7% at the stage of

framing charge.

7. The charge was denied by the accused, pleaded not guilty and he claimed to

be tried. During the trial the prosecution examined as many as 36 witnesses

and the accused examined 6 witnesses in his defence. It is worth mentioned

herein that out of the aforesaid 6 defence witnesses Sri Ajay Krishna Roy

(DW1), Sri Gautam Dutta Chaudhury (DW2), Sri Ranjit Kumar Saikia (DW3),

Sri Guruddin (DW5) and Sri Vinod Kumar (DW 6) were cited as prosecution

witnesses and were summoned by the court. But the witnesses were not

examined by the prosecution.

8. In the statement recorded u/s 313 Cr.P.C. the accused stated that PW1 Sri

Chandra Prakash was not his removal authority and as such not competent

to accord prosecution sanction. While explaining various sources of income,

channels of expenditures and the assets , he acquired during the check

period in his name as well as in the name of his wife Smti Vimala Kanujia,

the accused explained that the gold bangle was bought by his wife with the

money gifted by his two sons @Rs. 25,000/- each on the occasion of their

25th Marriage Anniversary and the additional amount of Rs. 13,135/- being

paid by him. While answering regarding the amount of Rs.1,00,000/-

deposited in the savings account no. 09083451002565 in the Oriental Bank

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of Commerce, Lakhtokia Branch, he had explained that the sum was the

principal amount of the Fixed Deposits from the savings and house rent

received from his house at Allahabad. So far the initial deposit of Rs.5,000/-

in the account No. 30372970142 maintained in the SBI, Allahabad High Court

Branch and purchasing of a mobile for sum of Rs. 6,650/-, he has explained

that the same was spent from the savings. To the query regarding deposit

of a sum of Rs. 75,814/- as well as Rs. 2,53,376/- by cheque in the said

account, the accused has explained that the aforesaid amounts were paid

by the department as 2nd instalment of 6 CPC Pay arrear as well as

reimbursement of medical bill respectively. So far recovery of Rs. 6,31,000/-

from his possession during the joint check, he has stated that he

immediately divulged to the CBI that the said amount was taken as

loan from various contractors for the treatment of his ailing father. While

explaining the recovery of Rs. 46,000/- during house search, the accused

has explained that the same was kept from savings to meet day to day

expenses. Regarding the house allotted to him by UP Avash Vikash Parisad,

Lucknow as well as the scooter purchased by him, the accused has

explained that he took an advance of Rs. 66,800/- from the department

in the year 1988 for the house and scooter advance of Rs. 30,000/ was

obtained by him in the year 2002 which has been recovered by the

department. While explaining a sum of Rs. 49,000/- deposited vide Ext-38

on 24/5/2007 in Oriental Bank of Commerce, the accused explained that

the said amount was brought from the savings and house rents received

from Allahabad house for taking of rent at Guwahati and it was deposited

in the bank as a transit room was allotted to him by the department. He

also explained that deposit of Rs. 30,000/- on 25/7/2007 vide Ext-39 was

from his savings and the sum of Rs. 58,888/- vide Ext-40 was the maturity

amount of TDR which was made from his savings. Regarding deposit of Rs.

10 lacs in his account No. 09082011003806, he explained that the same

was withdrawal amount from his GPF account for liver transplant of his

wife, Smt. Vimla Kanojia who was admitted in Apollo Hospital, New Delhi.

The cheque was deposited in the bank but it was not released as admitted

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by the PW 11, Sri Robin Ch. Konwar in his cross-examination. The said

amount was paid against his GPF advance vide two cheques of Rs. 5 lacs

each vide Ext-43 and Ext-44 which were deposited in his account. Again

vide Ext-45, a cheque of Rs. 4 lacs was issued by the department as

medical advance for liver transplant of his wife and Rs. 22,63,312/-

deposited vide Ext-46 in his account was medical reimbursement for his

wife’s liver transplant. Similarly a sum of Rs. 3,44,682/- vide internal debit

voucher Ext-47 was paid in the account and a sum of Rs. 50,000/- deposited

vide Ext-48 in A/c No. 09082011003806 dated 5/10/2009 was deposited

from his savings. The accused has also explained that various deposits

were made in the bank from his savings and maturity of recurring

deposits in the name of his wife which he saved from his earning as well

as from the house rent received from Allahabad. Besides, he has stated that

a sum of Rs. 20,000/- was paid by one contractor namely Md. A . J. Sheikh

as financial help which he has yet to return. He has also stated that

another sum of Rs. 30,000/- was paid by him as loan which is also yet to

be paid. The aforesaid amount was borrowed by him from the aforesaid

contractor for the treatment of his wife. He further explained that he admits

the recovery of cash of Rs. 80,000/- and Rs. 50,000/- from his house and

also stated that he has no disproportionate assets as alleged. He stated

that the case has no basis at all and he is innocent.

9. Heard Mr. Basudeb Prasad, Learned Special PP for the prosecution and Mr.

B. M. Chaudhury, Learned Counsel for the accused. Also perused the records.

Point for Determination

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10. Whether during the check period from 01/04/1995 to 22/05/2010 the

accused Sri Sunder Lal Kanojia @ Sunder Lal while posted as the Assistant

Engineer- I/c Executive Engineer, Civil Wing, Postal Department, Assam

Circle had committed the offence of criminal misconduct by accumulating

assets to the tune of Rs. 13,22,664/- which was disproportionate to the

known source of income and as such had committed offence punishable

u/s 13 (2) r/w section 13(1(e) of P. C. Act 1988 ?

Discussion, Decision and Reasons thereof

11. From the evidence of PW 1 Sri Chandra Prakash who was the authority

granting prosecution sanction of the accused, it is clear that he was the

appointing authority of the accused as the Assistant Engineer, Postal Civil

Division, Assam Circle, Guwahati . The fact that the accused was holding

the post of Assistant Engineer, Postal Civil Division, Assam Circle,

Guwahati is also crystal clear from the evidence of PW 36 Mr. T. K. Nath

as well as other witnesses. The accused also have never disputed the

said fact and as such it is not in dispute that the accused is a public

servant and at that relevant period i.e. the check period, he was acting as

such and his main source of income was salary. PW 10 Sri Jayanta Kr.

Bhattacharjee , who was working in the office of Executive Engineer

Postal Department Guwahati from 9/2/2009 to 02/12/2011 and retired as a

Deputy CCA , office of the CCA Assam Telecom Circle, Guwahati has

deposed that the accused was holding the post of officiating Executive

Engineer from 20/11/2006 till his suspension. Vide Ext-20, letter dated

14/6/2010 he handed over the personal file and service book of the

accused, month wise salary statement from November 2006 to May, 2010,

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form 16 for the year 2007-08, 2008-09, 2009-10, a copy of the property

returns for the year 2006, 2007, 2008 and 2009, details of loan (house

building advance, vehicle etc) from the department including repayment

details, PAN number of the accused, details of claims received by the

accused like medical bill etc. from November, 2006 to May, 2010 to the CBI.

He proved the signature of Anand Prakash, Executive Engineer , Postal

Civil Division Guwahati vide Ext-20(1) and his signature Ext-20(2). Vide

Ext-22 seizure memo dated 21/06/2010, 12 documents were seized by PW

36 which relates to office order No. 81 dtd 21/5/2010, office order dtd

26/5/2010, charge report dtd 2/6/2010, last pay certificate of the accused,

form 16 of the accused for 2007-08, 2008-09 and 2009-10, details of claims

received by the accused, details of loan and the repayments, immoveable

property return for the period 2006 to 2009, service sheet of the accused ,

personal file of the accused, monthly salary statements w.e.f November,

2006 to May, 2010, details of original medical bill of the accused and his

family members. PW 10 put his signatures vide Ext-22/1 and Ext-22/2 and

also the signature of PW 36 vide Ext-22/3. PW 36 during his examination

has also proved the aforesaid seizure vide Ext-22 and his signatures as well

as the signatures of PW 11. PW 36 further proved Ext-20 corroborating PW

10.

12. PW 10 also proved the loan and repayments by the accused from

November, 2006 to May, 2010 vide Ext-23. PW 10 has further deposed that

through the details of last pay certificate issued by Postal civil Division ,

Allahabad vide their no. PCD/ALLD/162(1) vol-3/1264 dated 16/11/2006,

HBA interest balance Rs. 27,560/- was recovered from the accused

monthly instalments in at the rate of Rs. 400/- per month. From November,

2006 to May 2010 recovery was made @ Rs. 400/- per month and the

balance recovery loan was Rs. 10,360/-. Vide last pay certificate as noted

in Srl No.1, scooter advance balance of Rs. 8,500/- was to be recovered in

monthly instalment @ of Rs. 430/- per month was transferred to the

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office. From November 2006 to August 2007 recovery was made @ Rs.

430/- per month and for September to October 2007 recovery was made

@ Rs. 2,315/- per month. Interest calculated for Rs. 7,826/- and recovered

@ Rs. 869/- in November 2007 and Rs. 430/- per month from December

2007 to April 2009 and last instalment recovered in May 2009 for Rs. 88/-.

Excess recovery of principle was Rs. 430/- and excess interest of Rs. 439/-

was refunded on 12/12/2007. Ext-23(1) is the signature and seal of PW 10.

Ext-24 is the form 16 in the name of Sunder Lal for the assessment year

2008-09 and gross total income has been shown as Rs. 2,91,765/- .

Recovery of deduction from net income of Rs. 1,81,765/-. Total income tax

deducted at source is Rs. 10,664/-. Ext-24(1) is the signature of S. C.

Sharma, AO, PCD, Guwahati. Ext-25 is the form 16 issued in the name of

the accused for the assessment year 2009-10 where gross salary income is

shown as Rs. 3,90,670/- after permissible deduction and net salary income

was Rs. 2,90,670/-. Tax deducted at source is Rs. 14,489/-. Ext-25(1) is the

signature of PW 10. Ext-26 is the form 16 issued in the name of the

accused for the assessment year 2010-11 where gross salary income has

been shown as Rs. 5,51,674/- after permissible deduction and net salary

income was Rs. 4,51,674/-. After permissible deduction net salary income

was Rs. 45,664/-. Ext-26(1) is the signature of PW 10. Ext-26(2) is the

charge report and the charge of executive engineer was taken by Sri Anand

Prakash from Sri Prabir Sen.

13. PW 10 has also deposed that monthly salary statement with details breakup

of the accused since date of joining from November 2006 to May 2010

net pay for the month of November 2006 was Rs. 10,486/-. HD arrear

for the period 20/11/2006 to 30/11/2006 amounting to Rs. 639/- drawn on

13/12/2006. Net Salary of December 2006 was Rs. 13,486/-. Net salary of

January 2007 was Rs. 12,413/-. Net salary of February 2007 was Rs.

13,713/-. Pay and allowance arrear amounting to Rs. 514/- was drawn on

20/2/2007 and net salary of the accused for the month of March 2007 was

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Rs. 14,400/-. DA arrear for the period from January 2007 march 2007

amounting to Rs. 2565/- was drawn on 10/4/2007 and net salary of April

2007 was Rs. 15,255/-. Net salary of May 2007 was Rs. 14,634/- and net

salary of June 2007 was Rs. 12,670/-. Net salary for July 2007 was Rs.

12,617/- and net salary for august 2007 was 12,617/-. DE arrear for the

period July 2007 to August 2007 amounting to Rs. 1,722/- was drawn on

18/9/2007. Net salary for the month of September 2007 was Rs. 11,587/-

ands net salary for the month of October 11,587/-. Net salary for the month

of November 2007 was Rs. 11,284/- and net salary for the month of

December 2007 was Rs. 13472/-. Net salary for the month of January 2008

was Rs. 9,878/- and net salary for the month of February 2008 was Rs.

11,914/-. Net salary for the month of March 2008 was Rs. 11,978/-. DA

arrear for the period from January 2008 to March 2008 amounting to

Rs. 2,619/- was drawn on 10/4/2008. Net salary for the month of April

2008 was Rs. 12,851/- and net salary for the month of May 2008 was Rs.

11,851/-. Net salary for the month of June was Rs. 11,851/- and net salary

for the month of July 2008 was Rs. 11,851/-. Net salary for the month of

August 2008 was Rs. 11,851/- and net salary for the month of September

2008 was Rs. 19,209/-. 6 CPC arrear (1st instalment) amounting to Rs.

63,118/- drawn on 29/9/2008. Net salary for the month of October 2008

was Rs. 19, 859/- and net salary for the month of November 2008 was Rs.

19,859/-. FPA arrear of Rs. 150/- for the month of September 2008 was

drawn on 31/10/2008. Net salary for the month of December 2008 was Rs.

19859/- and net salary for the month of January 2009 was Rs. 20,385/-.

Net salary for the month of February 2009 was Rs.21,344/- and net salary

for the month of March 2009 was Rs.15,359/-. DA arrear for the period

from January 2009 to March 2009 amounting to Rs. 4,311/- was drawn on

6/4/2009. DA arrear on TA for the period January 2009 to March 2009

amounting to Rs. 144/- was drawn on 24/4/2009. Net salary for the month

of April 2009 was Rs.13,851/- and net salary for the month of May 2009

was Rs. 13,217/-. Net salary for the month of June 2009 was Rs. 14,233/-

and net salary for the month of July 2009 was Rs.17,194/-. Net salary for

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the month of August 2009 was Rs. 14,194/-. 5th CPC arrear (2nd instalment)

amounting to Rs. Gross amount Rs. 94767/-, income tax recovered Rs.

18,953/- net payable Rs. 75,814/- drawn on 7/9/2009. Net salary of

September 2009 was Rs. 17,242/- and DA arrear for the period 1/7/2009 to

30/9/2009 amounting to Rs. 4,011/- was drawn on 6/10/2009. Net salary for

the month of October 2009 was Rs. 15,942/- and net salary for the month

of November 2009 was Rs. 17,135/-. Net salary for the month of December

2009 was Rs. 16,737/-. Net salary for the month of January 2010 was

Rs.16,041/-. SD amount for the month of January 2010 amounting to

Rs. 597/- was drawn on 11/2/2010. Net salary for the month of February

2010 was Rs.17,324/- and net salary of March 2010 was Rs.14,550/-. DA

arrear for the period 1/1/2010 to 31/3/2010 amounting to Rs. 6,111/- was

drawn on 6/4/2010. Net salary for the month of April 2010 was Rs.

16,552/- and net salary for the month of May 2010 was Rs. 2,677/-. AP Tax

@ Rs. 125/- per month from November 2006 to October 2008 , then @ Rs.

155/- per month from November 2008 to February 2009 @ Rs. 185/- per

month from March 2009 to May 2010 recovered and credited through the

concerned bank of State Govt. account Ext-27(1) to Ext-27(3) are the

signatures of PW 10. Ext-28 is the details of claim received by the accused

like medical bill, TE, GPF, LTC etc which are not included in the salary

statement for the period from November 2006 to May 2010. TE from

31/10/2007 to 17/11/2009 was Rs. 46,900/-. GPF withdrawal 30/4/2009

to 7/6/2010 was Rs. 11,25,000/-. LTC for the period from 20/6/2007 to

31/10/2007 was Rs. 50,860/-. Medical reimbursement made to the

accused from 27/3/2008 to 1/3/2010 amounting to Rs. 29,59,632/-. On

10/6/2009 medical advance of Rs. 4 lacs was paid . The statement was

verified by Head Clerk Sri P. P. Gorai. Ext-28(1) is the signature of PW 10.

Ext-28(2) is the signature of Sri P. P. Gorai. Ext-29 is the statement of

immoveable property as on 31/12/2009 belonging to the accused. The

accused acquired a property at House No. 8/146, Bikash Nagar,

Lucknow, UP for Rs. 3 lacs Approx. Ext-29(1) is the signature the accused.

There is no income from property. Similarly Ext-30, Ext-31 and Ext-32 are

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the immovable property statement as on 31/12/2008, 31/12/2007 and

31/12/2006. Ext-30 is immoveable property return on first appointment of

the accused as on 31/12/2008 for the same address and same amount. Ext-

30(1) is the signature of the accused. Ext-31 is the immoveable property

return as on 31/12/2007 of the accused and Ext-31(1) is the signature of

the accused. Ext-31(2) is the annexure in respect of description of property

and Ext-31(3) is the signature the accused. Ext-32 is the statement of

immoveable property as on 31/12/2006 and ext-32(1) is the signature of the

accused.

14. PW 10 has further deposed that Ext-33 is the letter from him to Mr. R. k.

Gupta, Suptd. Engineer, Civil. HQ, N. Delhi with a copy to Hiren Ch. Nath,

Sp, CBI, ACB, Guwahati and Ext-33(1) is his signature. Ext-33(2) is the

transfer posting details of the accused right from the date of joining in two

pages and pay particulars . Ext-33(3) is his signature. Ext-34 is the letter

dated 10/3/2011 addressed to T. K. Nath, Inspector , CBI, ACB, Guwahati

regarding information in respect of 6 nos. Of cheques. Details of those 6

cheques are as follows; 1) Cheque No. 291494 dated 13/4/2009 for Rs. 5

lacs and cheque No. 291493 dated 13/4/2009 for Rs. 5 lacs was issued to

the accused as GPF withdrawal for Rs. 10 lacs . 2) cheque No. 291511

dated 10/6/2009 for Rs. 4 lacs issued to the accused as medical advance,

3) cheque No. 291583 dated 7/9/2009 for Rs. 22,63,312/- issued to the

accused as medical reimbursement bill, 4) cheque No. 291705 dated

24/2/2010 for Rs. 29,368/- was issued to the accused as medical

reimbursement bill, 5) cheque No. 291758 dated 31/3/2010 for Rs.

2,53,376/- was issued as medical reimbursement bill. Ext-35 is the certified

copy of service book running into 83 pages. Ext-35(1) to Ext-35(85) are

the signatures of PW 10 with seals. Ext-36 is the letter dated 2/3/2011

addressed to APMG (Vigilance) Office of the CPMG, Assam Circle, Guwahati

with a copy to Mr. T. K. Nath , Inspector, CBI, Guwahati regarding salary

statement of the accused for the period from 6/11/1979 and 18/5/1985 for

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a sum of Rs. 53,851/-. Ext-36(1) is the signature of PW 10 and Ext-36(2) is

the salary statement. Ext-36(3) is the signature of PW 10. Ext-37 is the

medical bill file of the accused in respect of the accused’s wife Smt.

Vimla Kanojia. Ext-37/1 is the bill dated 26/9/2009 for Rs.835/-. Payment

was made to the accused. Ext-37/2 and Ext-37/3 are the signatures of

PW10. Ext-37(4) is the signature of the accused in acknowledgment of

receipt of medical bill Rs. 835/-. Ext-37(5) to Ext-37(7) again are the

signatures of PW 10 as DDO on payment order. Ext-37(8) is the medical

advance of the accused for Rs. 4 lacs and Ext-37(9) to Ext-37(12) are the

signatures of PW 10 as DDO on the advance bill. Payment was allowed to be

made to Phulen Ch. Nath, Postal Assistant by the accused. Ext-37(13) is

the signature of Phulen Ch. Nath in acknowledgment of receipt of said

advance. Ext-37(14) is the medical bill of Sunder Lal for Rs. 2,489/-. Ext-

37(15) to Ext-37(17) are the signatures of PW 10. Ext-37(18) is the signature

of the accused on acknowledgment of receipt of bill and Ext-37(19) is the

medical bill of the accused for Rs. 27,890/-. Ext-37(20) is the signature of

the accused on acknowledgment of receipt of payment and ext-37(21) to

Ext-37(23) are the signatures and seals of PW 10. Ext-37(24) is another

medical bill for Rs. 2,25,486/- and Ext-37(25) is the signature of the accused

on acknowledgment of receipt payment. Ext-37(26) to Ext-37(28) are the

signatures of PW 10 and seal. Ext-37(29) is another medical bill of the

accused for Rs. 190/- and Ext-37(30) is the signature of the accused on

acknowledgment of receipt of payment of Rs. 190/-. Ext-37(31) to Ext-

37(33) are the signatures of Mr. S. C. Sharma, Predecessor in office. Ext-

37(34) is another bill of the accused for Rs. 29,386/-. Ext-37(35) is the

signature of the accused on acknowledgment of receipt of payment of Rs.

29,386/- and Ext-37(36) to Ext-37(38) are the signatures of PW 10. Ext-

37(39) is the medical bill of the accused for net amount of Rs. 22,63,312/-

after adjustment of medical advance of Rs. 4 lacs earlier adjusting from

the gross amount of Rs. 26,63,312/-. Ext-37(40) is the signature of the

accused on acknowledgment of receipt of payment of Rs. 22,63,312/-. Ext-

37(41) to Ext-37(43) are the signatures of PW 10.

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15. During his cross examination he has admitted the fact of the liver

transplantation operation of the wife of the accused which was carried out

outside Assam and was approved for medical reimbursement. He further

admitted that the medical bills were reimbursed by cheque and all those

payments have been reflected in the aforesaid exhibits. He has further

admitted that the first instalment of the 6th CPC arrear amounting to Rs.

60,118/- was paid on 29/9/2008 and the 2nd instalment was paid by cheque

on 7/9/2009 for an amount of Rs. 75,814/-.

16. The accused in his statement recorded u/s 313 Cr. P. C. has categorically

explained while answering question No. 7 that a cheque of Rs. 75,814/-

was issued from the department as the 2nd instalment of 6th CPC pay

arrear which was deposited in the bank. The explanation given by the

accused regarding this amount appear to be plausible since it corroborates

the deposition of PW 6 Sri Abhisekh Kumar, who was the Chief Manager of

SBI and during the period from February,2010 to November,2010 was

working as the Branch Manager of Allahabad High Court Branch, SBI.

According to this witness the cheque of Rs. 75,814/- was deposited on

10/9/20009 vide Ext-12. As such the amount of Rs. 75,814/- is

satisfactorily explained by the accused.

17. Besides, the deposit of the cheque of Rs. 2,53,376/-, which the PW 10 has

stated to have paid to the accused by way of medical reimbursement has

also been corroborated by PW 6 which is proved by Ext-12, computerised

account statement of the accused. The accused has also explained

satisfactorily regarding the aforesaid amount while answering question No.

7 during his statements recorded u/s 313 Cr. P. C.

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18. PW 36 during his cross-examination has admitted that Sri Chndra Bhal, Jr.

Accounts Officer, office of Sampatti Prabandh Adhikari, Vikash Nagar,

Lucknow stated that the accused applied for a house for UP, Avwash

Vikash Yojna witha surety of Rs. 3,750/- vide challan No. 17138 and

during the lottery conducted on 30/3/88 , the accused was nominated for

house No. 8/146 at Rs. 76,688/- and the possession of the house was

handed over to him on 28/10/88. But in the charge sheet the aforesaid

house had been wrongly shown as has been acquired by the accused on

23/4/2003. The aforesaid date of acquisition is a clerical mistake as the

house was handed over on 28/10/88 and as such the amount of Rs.

76,688/- as the value of LIG house will be out of purview of the check

period. He further admitted that in the charge sheet Ext-97, the total value

of details of movable and immovable assets acquired within the check

period come to Rs. 39,60,125.78/- instead of Rs. 45,93,226/- and as such in

the charge sheet calculation of DA, income during the check period was

shown as Rs. 62,22,343/- instead of Rs. 64,27,058/-. With the aforesaid

correction, the disproportionate assets of the accused comes to 19.38%

instead of 34.7%.

19. PW 28 Sri Chndra Bhal during his examination-in-chief has deposed that vide

Ext-80 sale deed executed between the accused and Mr. J. N. Mishra, the

then Estate Manager, U.P. Awash and Vikash Parisad, the house No. 8/146

was sold to the accused for consideration of Rs. 76,688/- and the said sale

deed was executed on 26/4/2003.

16

20. Mr. B. M. Chaudhury, ld. counsel for the accused submitted that the

aforesaid transaction would not come under the check period in as much as

the whole transaction took place in the year 1988 itself which is reflected

from the cross-examination of PW 28. He has drawn the attention of the

court to the cross-examination of PW 28 where he categorically admitted

that he stated before the IO that the possession of the house was handed

over to the accused on 28/10/88. The ld. Counsel has submitted that

during re-examination of PW 28, he has admitted that sale deed is executed

after payment of the full consideration and in the instant case, the entire

amount must have been paid before execution of the sale deed dated

26/4/2003. During his cross-examination also he had admitted that incase

of payment of consideration of land , if it is paid on instalments after

payment of few instalments , the possession can be delivered to the allottee

and the sale deed can be executed on payment of full consideration.

The ld. counsel has vehemently argued that since the payment of the

aforesaid sum of Rs. 76,688/- was paid way back in the year 1988 , the

acquisition of the said house could not figure during the check period and

as such it must figure in the assets in the beginning of check period i.e. as

on April, 1995 (i.e. statement-A of the charge sheet). PW 32 Sri R. K.

Gupta, who was holding the post of SE Civil , HQ, Postal Director, Dak

Bhawan, N. Delhi in the year 2010 has admitted during his cross-examination

that in Ext-C/1 copy of pay bill for the period of March, 88 to February,89 it

is reflected that a sum of Rs. 11,200/- was taken as GPF advance by the

accused on 8/6/88 and another advance of Rs. 4,000/- was obtained by

him on 6/5/88. He has also taken house building advance amounting to

Rs. 66,800/- on 28/9/88 which was to be repaid in 167 instalments @ Rs.

400/- per month and he further obtained GPF advance for the aforesaid

sum of Rs. 15,200/- to be repaid in 32 instalments @ Rs. 550/- per month

w.e.f. 8/6/88.

17

21. The accused during his statement recorded u/s 313 Cr. P. C. while

answering question No. 15 has explained that he took house building

advance for Rs. 66,800/- in the year 1988 for procuring the house allotted

by UP Awash Vikash Parisad, Lucknow. From combined reading of the

evidence of PW 32 and PW 36 it appears that the explanation given by the

accused is plausible and as such this court has no hesitation but to hold

that the aforesaid house was acquired by the accused in the year 1988 i.e.

before the check period and as such the value of the aforesaid house i.e. Rs.

76,688/- is to be removed from the statement B of the charge sheet and

finds it place in statement A i.e. the assets at the beginning of the check

period i.e. as on April, 1995. The prosecution has also admitted the said

error in the charge sheet.

22. PW 32 Sr. R. K. Gupta deposed in his evidence that vide Ext-83 letter dtd

7/12/10 he forwarded the pay details of the accused fro May, 1985 to June

86, April, 95 to February,99. He put his signature Ext-83/1. Vide Ext-84 pay

details of the accused from May, 85 to January, 86 and April, 95 to

February,99 enclosing the arrear of revised pay and 2nd instalment of arrear

of 5th pay commission was also forwarded. Vide Ext-85 letter dated

15/12/2010 he also forwarded the pay details of the accused from

February, 1986 to July, 1986, May, 1990 to May, 1992, June, 2000 to

October, 2006, February,1999 to May 2000, June 1992 to April, 1995 and

also the pay and allowances of the accused w.e.f. 27/5/2000 to 27/10/2006

vide Ext-86. He also forwarded the pay details of August, 86 to April, 1990

to CBI vide Ext-87. He proved his signatures Ext-85/1 and Ext-87/1

respectively.

23. From the aforesaid evidence, the prosecution has been able to prove that

the net salary drawn by the accused w.e.f. 6/11/1979 to March, 1995 comes

18

around Rs. 1,75,799/- and total arrear , bonus, DA arrear etc w.e.f.

6/11/79 to March, 1995 comes around Rs. 28,916/- and as such the total

income from salary at the beginning of the check period i.e. April, 1995

is Rs. 2,04,715/-. Adding the value of LIG house No. 8/146 at Vikash

Nagar, Lucknow to the said income from salary , the value of the assets is

estimated at Rs. 2,81,403/-.

24. Mr. Basudeb Prasad , ld. counsel for the prosecution has submitted that

during the check period a sum of Rs. 52,45,782/- was transacted in cash

and TDR deposited in the joint account of accused bearing No.

09082011003806 which is reflected in the evidence of PW 11 Sri Robin

Ch. Konwar and the said amount deposited in the account vide Ext-38 to

Ext-48 remains unexplained satisfactorily by the accused person. He further

submitted that the transactions of the accused in A/c No. 09082011003806

vide Ext-52, Ext-53, Ext-54, Ext-56, Ext-57, Ext-60, Ext-61, Ext-63, Ext-67

also is not satisfactorily explained by the accused. Besides, the accused

has also failed to satisfactorily explain the acquisition of the house in the

name of his wife procured vide Ext-68 sale deed dated 11/6/96. The ld.

counsel has vehemently argued that the accused has received various

amounts from several contractors and DW1, DW 2, DW 3, DW4 have

categorically deposed that they gave money to the accused on different

dates which is sufficient to show that the accused was indulging himself

in corrupt practices by obtaining illegal gratification. He has further

submitted that PW 7 Sri Sarada Das who was declared hostile, has also

deposed in his examination-in-chief that a sum of Rs. 50,000/- was paid

by to the accused to meet the expenses for his father’s treatment and PW

15 Sri Ganesh Ch. Talukdar also deposed in his evidence that he paid a

sum of Rs. 2 lacs to the accused in the year 2009 which he repaid after

one week by a cheque and he again paid a sum of Rs. 50,000/- to the

accused in the year 2010 as loan. The ld. counsel has also drawn the

attention of Court to the evidence of PW 16 Md. Nuruddin who deposed

that he had given a sum of Rs. 50,000/- as loan to the accused in the year

19

2009. He further argued that another contractor namely Md. Abdul Jalil

Shekh paid a sum of Rs. 20,000/- on 18/4/2009 for the treatment of liver

transplantation of his wife and the counter foil of the said transaction

affirming his deposit in the SB A/c No. 30372970142 in the name of the

accused was handed over to the CBI and Ext-69(3) is the said counter foil.

He further deposed that in May , 2010, the accused requested him for a

loan of Rs. 1 lac as his father fall seriously ill and at this juncture he paid

a sum of Rs. 30,000/- to the accused and during his cross-examination he

admitted that the aforesaid sum of Rs. 20,000/- which he earlier paid to the

accused was not loan.

25. Mr. B. Chaudhury, ld. counsel for the accused, per contra, argued that the

amount of Rs. 20,000/- paid by PW 19 was in fact paid as a financial help

to the accused as a friendly gesture to meet the medical expenses at the

time of liver transplant of the wife of the accused and the accused took the

help of the contractors to meet the financial crisis he faced during the liver

transplantation of his wife which is a very costly affair. He has further

submitted that the accused who is not a native of Assam took the financial

help from the contractors out of compulsion as he has very limited friends

in Assam. The said fact was divulged to the IO i.e. PW 36 as well as the

members of the team during the joint check but the same was not believed.

He has vehemently argued that the prosecution has tried to mislead the

Court by withholding material witnesses which were although cited as

prosecution witnesses, were not examined purposefully compelling the

accused to call those witnesses as defence witnesses. These witnesses

were enquired by the IO during investigation who stated that they

advanced loan to the accused to help him for the treatment of his wife

as well as his ailing father. The ld. counsel has further submitted that had

these accounts been considered by the IO, there would not have been any

disproportionate assets of the accused as alleged. It is his further

contention that the IO inspite of having the knowledge that the accused

20

has income from house rent at Allahabad, did not divulge in the charge

sheet as a known source of income, thereby ignoring the house rent

received entirely although he did show the tenant of the accused namely Sri

Rajesh Prasad Yadav PW 34 as a seizure witness showing him to be a

tenant.

26. This Court finds sufficient force in the submissions made by Mr. B. M.

Chaudhury, ld. counsel for the accused so far PW 34 is concerned. PW 34

was cited as a prosecution witness and the list of witnesses he has been

shown as a tenant of the accused and his residence is shown to be

137B/28E/2 at Rajapur, Allahabad. In fact in statement B of the charge

sheet, this house of 105 square meter situated at village Mafi at Rajapur,

Allahabad has been shown as an asset acquired by the accused during the

check period the value of which is shown to be Rs. 68,250/- and the date

of acquisition as 3/4/1995. PW 34 during his evidence have deposed that

he has been living in the first floor of the said house since 2004 and the

accused is the owner of the said building. The house is a two storied one

and the accused resides in the ground floor. As a seizure witness, he

deposed that on 20/7/2010 CBI team conducted a search in the residence

of the accused and recovered a sum of Rs. 80,000/- from the bed room No.

1 and Rs. 50,000/- from bed room No. 2 and he put his signatures in the

seizure list, Ext-89 and he put his signatures on the inventory i.e. Ext-

88/1, Ext-88/2, Ext-89/1 and Ext-89/2. He also proved the signatures of the

accused, Ext-88/3 and Ext-88/4. But during his cross-examination he

described the house and has admitted that in the first floor three rooms

are there out of which he lives in one room and the other four rooms in the

first floor and 2nd floor were let out to students on rent. Initially he used

to pay Rs. 1000/- per month as rent and since 2012 he has been paid Rs.

2000/- per month. For five rooms , the accused used to receive rent of Rs.

5000/- per month. He further deposed that the accused stayed in the

ground floor till 2006 till his transfer from Allahabad to Guwahati and when

21

CBI recovered the sum of Rs. 1,30,000/- during the search from his

house, the accused explained that the amount was saved from his earnings

from salary and house rent. He also deposed that after the transfer of the

accused in the year 2006 he used to collect the rents from the other

tenants and used to hand over the rent to the accused when he visits his

house.

27. From the evidence of PW 34 it can be held that the accused had incomes

from rent also apart from salaries. This witness is a reliable one and the

fact that he was living in the house as a tenant is also proved from the list

of witnesses appended to the charge sheet. PW 36 had sufficient

knowledge that PW 34 was residing as a tenant in the house of the

accused who made him a seizure witnesses after recovery of Rs.

1,30,000/- seized from his house. During his cross-examination also he

admitted that he met Sri Rajesh Prasah Yadav, a lawyer by profession of

Allahabad High Court who was the tenant of the house of the accused.

Therefore, it can be safely held that the accused earned not less than Rs.

3,85,000/- as rent from 1/1/2004 to 22/5/2010 which falls within the

check period. This amount can be safely held as a income of the accused

and income received from house rent may be termed as a known source of

the accused. This source was known to the IO at the investigation stage

itself but was not divulged in the charge sheet for the reasons best known

to him.

28. Mr. Basudeb Prasad, ld. Special PP has submitted that this source of

income received from house rents was not divulged by the accused in his

income tax returns and as such cannot be taken into consideration as a

legal source of income. This court finds it difficult to agree with the said

submission. In a case of disproportionate assets, the accused is to

satisfactorily explain the accumulation of assets and he is also required to

22

divulge the sources from which he has accumulated the same. Whether

he has shown or not shown the income in his income tax returns of the

person concerned is not within the jurisdiction of this Court to take

cognizance of while trying a case of disproportionate assets. The same

might be an offence under the Income Tax Act but if such source is

divulged by the accused or otherwise comes to light during the trial, the

court is bound to accept and recognize the said source as a known source

of income. Besides the prosecution is also not expected to conduct the

case in hush-hush manner and is always expected to bring the best

evidence available as per the “Rule of Best Evidence”. The prosecution of

a welfare State is expected to act fairly so that justice can be done and it

must not be the sole purpose of the prosecution to see that the trial

culminates in conviction only by hook or by crook.

29. The secretive manner of investigation of the IO as well as the act of the

prosecution in not bringing forward the best evidence becomes clear from

the mouth of the DWs also. DW 1 Sri Ajay Krishna Roy, DW 2 Sri Gautam

Dutta Chaudhury, DW 3 Sri Ranjeet Kr. Saikia, DW 4 Sri Dilip Sutradhar , DW

5 Sri Guruddin, DW 6 Sri Binod Kumar were cited as prosecution witnesses

and their names appeared in the list of witnesses annexed to the charge

sheet. DW 1 has deposed that he was a contractor and during the year 2009-

10 he executed construction as well as repairing work at Diphu Post Office

under Civil Division (Postal) Guwahati. During 2009-10 the accused was

holding the charge of Executive Engineer and he knew the accused since

2007-08. During the 1st/2nd week of April,2010 the accused requested for

financial help for the treatment of his father as well as check up of his wife

who did undergo a liver transplant in the year 2009. As DW 1 was not well,

he sent a sum of Rs. 55,000/- in the hand of Sri Gautam Dutta Chaudhury

(DW 2) who was also a contractor and the accused acknowledged the

receipt of the money in the last week of April, 2010. He has deposed that

his statement was recorded by the IO and he stated in the same manner as

23

in the Court. He further deposed that he was summoned by the Court to

adduce his evidence on two occasions but he was not examined.

30. DW 2 who is also a contractor and knows the accused since 2007 has

deposed that he had given the accused a loan of Rs. 75,000/- in cash in the

last part of 2010 at the request of the accused as he sought financial

assistance from him over telephone for treatment of his ailing father and

for the check up of his wife who had undergone liver transplantation. He

further deposed that he carried a sum of Rs. 55,000/- from Sri Ajay Krishan

Roy (DW1) from Diphu and paid the said amount to the accused as a

financial help/loan. He also deposed that he was interrogated by the IO

and his statement was recorded. Besides he was also summoned as

prosecution witness but he was not examined.

31. DW 3 Sri Ranjeet Kr. Saikia happens to be another contractor who has

deposed that he knew the accused since 2006-07 and the accused

requested him to pay a sum of Rs. 1,50,000/- over telephone as a loan in

the month of April,2010 for the treatment of his father. Accordingly he paid

a sum of Rs. 1,25,000/- to the accused in cash after Bohag Bihu in April,

2010 for the treatment of his father. He also deposed that the IO recorded

his statements and he gave his statement like that in the Court and he was

also summoned as prosecution witness on two occasions but was not

examined.

32. Similarly DW 4 Sri Dilip Sutradhar who happens to be a contractor also

knew the accused since 2006-07 and in the month of April,2010 the

accused requested him over telephone to help him financially for the

treatment of his father and his wife who was suffering from liver disease.

24

Accordingly in the month of April, 2010 he paid a sum of Rs. 55,000/- in

cash and the IO also recorded his statement and he stated before the IO

in the same manner as in the Court.

33. Another witness DW 5 Sri Guruddin who hails from U.P. and is a relative of

the accused has deposed that the accused is the husband of his sister-in-

law and the wife of the accused is suffering from liver ailments and she

underwent liver transplant in New Delhi in the month of April, 2009. He

paid a sum of Rs. 2 lacs to the accused in the month of April, 2009 for

treatment of his wife taking Rs. 1 lacs from his friends and office

colleagues i.e. Rs. 15,000/- from Sri Ramesh Ch. Gupta, Rs. 10,000/- from

Sri Kamala Prasad, Rs. 15,000/- from Sri Nand Kishore Yadav, Rs. 20,000/-

from Sri Govind Trivedi, Rs.20,000/- from Sri Atique Ahmed Siddique, Rs.

15,000/- from Sri Vimal Kr. Verma and Rs. 1 lac was paid from his

personal savings. He has categorically deposed that the IO Sri T. K. Nath

recorded the statements of all the aforesaid persons in his presence who

stated that they had given money to him for his relative’s liver transplant

operation. He further deposed that about two years back he got a

summon from the Court to depose as witness but due to non-receipt of

the Railway reservation , he could not appear before the Court and he

informed the Court by sending a registered letter but later on he did not

get any summon thereafter.

34. DW 6 Sri Vinod Kumar is the elder brother of the wife of the accused. He

deposed that his sister Smt. Vimala Knojia was suffering from liver

ailments and she was taken to Apollo hospital for liver transplant. It is

his deposition that in the last part of March 2009 the accused requested

for the financial help of Rs. 2 lacs from DW 6 and in the month of April,

2009 he went to New Delhi and handed over the aforesaid sum to the

25

accused. He further deposed that he stated before the IO in Lucknow itself

that he paid a sum of Rs. 2 lacs to the accused as a financial help for his

sister’s treatment and the accused returned the said amount to him in the

early part of 2011. He further deposed that he attended the Court about a

year back on receipt of summon but his evidence was not recoded as

the same was not necessary and he was told that he need not come again.

35. The fact that the aforesaid DWs were interrogated by the IO during the

investigation is transparent from the cross-examination of the IO (PW 36).

He had admitted in his cross-examination that Sri Ranjeet Kr. Saikia

stated before him that he paid the accused a sum of Rs. 1,25,000/- for the

treatment of his father in the last part of April, 2010 and he stated that he

did not pay the accused any single money for getting any work. Similarly

he admitted that Sri Gautam Dutta Chaudhury stated before him that he

gave the accused a loan of Rs. 75,000/- and Sri A. K. Roy paid a sum of

Rs. 55,000/- to the accused in the last part of April, 2010. Sri A. K. Roy

stated before him that the accused asked financial help from him for the

treatment of his father and periodical check up of his wife in Indraprashtha

Apollo Hospital in New Delhi in the 2nd week of April, 2010 as he had no

sufficient money and accordingly he sent a sum of Rs. 55,000/- in the

hand of Sri Gautam Dutta Chaudhury, a contractor from Diphu who also

gave the accused a loan of Rs. 75,000/- in cash. PW 36 further admitted

that Sri Dilip Sutradhar also stated before him that he lent a sum of Rs.

55,000/- to the accused for his father’s treatment and to attend the

marriage ceremony for his cousin sister. Besides, Sri Guruddin also

stated before him that he collected Rs. 2 lacs from his friends and from

his own and paid the same to the accused in the month of April,2009 for

the treatment of liver transplantation of the wife of the accused at the

request made by the accused during April,2009. Besides, Sri Vinod Kumar

i.e. bother of the wife of the accused also stated before him that he gave

26

Rs. 2 lacs to the accused for the surgery of his sister and the accused

returned the money on 14/1/2011. He further admitted in his cross-

examination that he also received two affidavits (certified photocopies)

sworn by Sri Guruddin and Sri Vinod Kumar regarding the extended help

to the accused at the time of liver transplantation of Smt. Vimala Kanojia.

36. From the evidence of DW 1, DW2, DW 3 , DW 4, DW 5 and DW 6 read with

the evidence of PW 36 would go to establish that various persons

extended financial help to the accused as per their capacity for the

treatment of the wife of the accused as well as his ailing father during the

check period. In the month of April, 2010 itself all the DWs paid a sum of

Rs. 7,10,000/- to the accused as loan. The said fact was known to the IO

who recorded the statements of the DWs, who stated the same at the

investigation stage itself. That is why all of them were made prosecution

witnesses but they were not examined inspite of summons by the Court.

During his cross-examination PW 36 has also admitted that one Md. Abdul

Jalil Sheikh stated before him in the 1st week of May, 2010 he paid the

accused a sum of Rs. 30,000/- from withdrawing a sum of Rs. 40,000/-

from ATM in Guwahati for the treatment of his ailing father and prior to

that also he had paid the accused another sum of Rs. 20,000/-.

37. This witness was examined by the prosecution as PW 19 who stated

during his examination that he deposited a sum of Rs. 20,000/- in the SB

A/c No. 30372970142 on 18/4/2009 for the liver transplantation of his wife

in Apollo Hospital. The said folio was seized by CBI and Ext-69(3) is the

counter foil of the deposit slip and Ext-69(1) and Ext-69(2) are his

signatures. Again in the month of May ,2010 the accused sought financial

help from him for treatment of his seriously ill father and he paid a sum

of Rs. 30,000/- to him by withdrawing Rs. 40,000/- from ATM of SBI

27

Guwahati. During his cross-examination, he deposed that the sum of Rs.

20,000/- was not loan. He further admitted that the accused had no

power to award contract beyond Rs. 5 lacs and he never paid any bribe

to him.

38. The prosecution has never disputed the illness of his father of the accused

as well as the treatment of his wife and her liver transplantation. The fact

that the wife of the accused underwent liver transplantation for which

medical bills reimbursements were made is also established from the

evidence of PW 10, PW 17 Sri Bijay Giri, Manager Administration, SRL

Diagnostics Pvt. Ltd. , PW 20 Sri Nayan Kamal Nath, PW 21 Sri Pranab Kr.

Dey, PW 22 Sri Samir Ch. Dey. PW 17 has proved various receipts i.e. Ext-

37(44) to Ext-37(60) of purchase of medicines as well as various

diagnostics tests of the wife of the accused as well as document marked

as X/1 to X/3 for blood test of the wife of the accused. PW 20 proved the

cash memo Ext-37(61) for Rs. 143/-, PW 21 proved Ext-37(62) a cash

memo for Rs. 362/- in the name of Smt. Vimala Kanojia, PW 22 proved Ext-

37(64) and Ext-37(66) two cash memo of Rs. 765/- and Rs. 513/-

respectively for purchase of medicines for the wife of the accused. Besides,

PW 26 Sri Hriday Narayan Jha, the Manager of Indraprashtha Apollo Hospital,

New Delhi during his cross-examination has admitted that Smt. Vimala

Kanojia underwent liver transplant in the said Hospital and regular visits

to the Hospital is necessary for few years at regular intervals (within 6

months) for controlling of various parameters of the patient. During his

examination-in-chief he proved Ext-74 - a letter dated 16/11/2010

informing the CBI about the treatment of the wife of the accused in their

Hospital, Ext-75 - money receipt, Ext-76 - bill dated 28/7/2009 for Rs.

32,91,741/- out of which Rs. 26,20,434/- was paid and Rs. 6,71,309/- was

paid after the reimbursement of the medical expenses, Ext-77- letter dated

6/10/2010 by which it was intimated to the CBI that Smt. Vimala Kanojia

was admitted on 27/1/2010 in Apollo Hospital, New Delhi and

28

discharged on 4/2/2010. He also proved Ext-78 – details of money receipt

and Ext-79 – a bill dated 4/2/2010 in the name of Smt. Vimala Kanojia for

a sum of Rs. 1,66,242/- which was paid in cash in between 27/1/2010 to

4/2/2010.

39. From the aforesaid evidence it is crystal clear that the wife of the accused

was suffering from critical illness from 2009 and she was undergoing regular

treatment and periodical checkups. It is admitted by PW 26 that liver

transplantation is a very costly affair and several lacs of rupees was

incurred as expense by the accused for the same. Therefore, the accused

took financial help from various persons which includes his relatives also.

DW 5 and DW 6 are the relatives from whom he took Rs. 4 lacs as loan.

Besides, all the DWs along with PW 19 have maintained their version that

the money they paid to the accused were financial help/loan for the

treatment of his wife as well as his ailing father. From the evidence , it can

also be seen that not only the aforesaid witnesses, but some other

witnesses of the prosecution also extended financial support to the

accused for the treatment of his father. PW 7 Sri Sarada Das who was

declared hostile also deposed that he was a contractor and he paid Rs.

50,000/- to the accused as loan for the treatment of his ailing father.

Similarly PW 15 Sri Ganesh Ch. Talukdar had paid sum of Rs. 2 lacs to the

accused as loan in the year 2009 and after one week , he returned the

same through cheque and again in 2010 he gave a sum of Rs. 50,000/- as

loan to him. During his cross-examination he admitted that the sum of

Rs. 2 lacs was paid to him as loan as his wife was suffering from liver

ailments and had to undergo liver transplantation and the accused asked

for the loan for a week or so as he did not get medical reimbursement

from the department. But when he received the medical reimbursement, he

repaid the money. He further admitted that another sum of Rs. 50,000/-

was advanced to him as loan which has been recorded in his diary but the

amount is to be repaid yet.

29

40. Yet another witness, PW 16 Md. Nuruddin who was also declared hostile

had deposed that he paid a sum of Rs. 40,000/- to the accused as loan

and during his cross-examination, he admitted that he never gave any

bribe to the accused and he paid the aforesaid money voluntarily as loan

for treatment of his father. He further admitted that the accused was in

dire financial crunch as his wife also had to undergo liver transplantation

outside Assam.

41. The aforesaid two hostile witnesses maintained during their cross-

examination that they did not say before the IO that the aforesaid amounts

were not paid as loan. The prosecution did not confront the IO, PW 36

with the statements made by the aforesaid two hostile witnesses to shake

the veracity of their statements and as such it can be held that the aforesaid

two hostile witnesses along with PW 15 paid the aforesaid amounts as loan

to the accused to help him to meet the medical expenses as aforesaid.

42. The accused during his statement u/s 313 Cr. P. C. also has explained that

the amounts were taken by him as loan from various contractors/persons

and the sum of Rs. 20,000/- paid by PW 19 was in fact a financial help.

From the deposition of DW 6 it also transpires that he returned the sum

of Rs. 2 lacs to him in the year 2011 and DW 5 has also deposed that he

himself returned the money which he borrowed from others to help the

accused in his financial crisis and the accused is yet to return the

borrowed money.

43. Mr. Basudeb Prasad, ld. Special PP has submitted that the evidence of

DWs cannot be believed in as much as all of the DWs have admitted in

their cross-examination that all of them are income tax assesee and file

30

income tax returns. But all the DWs have admitted that they have not

shown the aforesaid loans in their income tax returns. He has further

argued that it has been proved that the accused being a public servant took

money from the contractors which would go to show that he was indulging

himself in criminal misconduct and as such it can be presumed that the

aforesaid amounts were received by him as illegal gratification.

44. Per contra, Mr. B. M. Chaudhury has submitted that the explanation shown

by the accused regarding the acceptance of the loan for treatment of his

wife and his father is plausible. It is not an afterthought of the accused

who had cooked up a story of illness of his wife and his father. The

explanation was given by the accused at the very initial stage itself and at

the time of joint surprise check which is supported by various medical

documents and as such the acceptance of the loan from the contractors

and other persons cannot be termed as illegal gratification. He has further

argued that the mere fact that the advancement of loans by the

contractors /DWs were not entered into the income tax returns would not

ipso-facto make their evidences unworthy of reliance in as much as the

loans being in-secured loans , the entries to that effect in the corresponding

income tax returns is not mandatory.

45. This Court is inclined to accept the arguments advanced by Mr. B. M.

Chaudhury, ld. counsel for the accused. In India it is commonly seen that in

time of distress and financial crunch, a person seeks financial help from his

friends, relatives, colleagues as well as other persons who does not fall

under the aforesaid categories but otherwise known to the person due to

the profession he is engaged to. Sometimes it is seen and is of common

experience that people use to take loan from private persons or group of

persons at high interest rates. It is not unknown to the society we live in

where some class of persons engage themselves in money lending business

at high interest rates and as such steps have been taken by the legislators

31

also to discourage such practices for the welfare of the State. But the

practice is still in force, although under the carpet. In such circumstances

and living in such a society, where the accused faced severe financial

crises, it was very much likely that he approached various persons and

contractors for financial help and as such from the evidence as discussed

hereinabove, it was most likely that all the persons advanced loan to the

accused at his request. Therefore, the explanation given by the accused is

plausible.

46. Similarly it is also seen in our society that when some money is lent by one

person to another, the same is not shown in his income tax return.

Likewise, the person borrowing the money also does not show it in his

income tax return. Such type of lendings and borrowings , which are very

common in our society, never finds place in the income tax returns in case

of individuals. However, in case of firms or companies which are engaged

in business, such types of entries are reflected. Therefore, the fact that

the amounts paid by the DWs to the accused as loan were not reflected in

their respective income tax returns does not ipso-facto shake the credibility

of the aforesaid witnesses. Besides, the accused has not come with a new

story by way of the DWs. Neither, the DWs are hand-picked by the

accused for his benefit. Rather, the accused has relied on the witnesses

named by the prosecution who later on took a back step at the time of

adducing their evidence. The illness of the wife of the accused as well as

the father has not surfaced up during the DWs stage but during the

prosecution evidence itself. The accused has only led the evidence of

DWs keeping it in the same tune that with the prosecution and as such all

the defence witnesses are trustworthy as all of them have corroborated the

evidence of PW 7, PW 15 and PW 16. Besides, they have further

corroborated the evidence of prosecution witnesses regarding illness of the

wife of the accused. As such the amounts which the accused borrowed

32

from the aforesaid witnesses can safely be included in the statement C –

income during the check period.

47. The accused has never disputed the recovery of Rs. 6,31,000/- from his

possession during the joint surprise check on 22/5/2010. In his statement

recorded under u/s 313 Cr. P. C. he has explained that the amount was

recovered from him during the joint surprise check. The joint surprise check

was carried out on 22/5/2010 by a joint team consisting of PW 8 Gagan

Deka (working as a Sr. Vigilance Inspector, Traffic, N. F. Railways , Maligaon

at that relevant time), PW 9 Sri Gautam Mahanta, PW 13 Sri Manoj Kumar

(Chief Vigilance Inspector in the office of N. F. Railway, Maligaon), PW 27

Sri Dilip Das (Official Driver of the accused in presence of whom search was

conducted by the CBI in the office of the accused), PW 29 Sri Kumar Raunak

(working as Sub-Inspector in the office of CBI, ACB, Guwahati on that

particular date), PW 33 Sri Majeet Kr. Buragohain (who was working as

Inspector in CBI, ACB, Guwahati on that particular date) and PW 35 Sri R.

K. Sangwan (who was working as Inspector of Police in CBI, ACB,

Guwahati on that particular date). PW 36 Sri T. K. Nath (who was holding

the post of Inspector, CBI, ACB, Guwahati on that particular date) carried out

the investigation but he was not a member of the said team.

48. It may be pertinent to mention herein that PW 36 in his deposition has

deposed that an FIR was folged bearing No. RC 9(A)/2010 on 22/5/2010

and the same was registered by Sri H. C. Nath, the then HOB, CBI, ACB,

Guwahati. The same was registered on a source information against the

accused and was registered u/s 13 (2) r/w 13(1)(e) of P. C. Act 1988 and

Ext-90 is the said FIR along with annexure A (joint surprise check memo).

The said FIR was forwarded to the Court vide Ext-91. On registration of the

said FIR, the same was endorsed to him for conducting investigation.

33

49. Mr. B. M. Chaudhury, ld. counsel for the accused has submitted that in

case of investigation of cases involving disproportionate assets, the

investigation must be done by an Officer not below the rank of Deputy

Superintendent of Police but in the instant case, the investigation was done

by the Inspector of Police which has been admitted by the PW 36 during

cross-examination. However, Mr. Chaudhury has fairly submitted that since

the PW 36 was authorized by the HOB, CBI, ACB, Assam, the same does not

vitiate the trial. Therefore, this Court has not dealt with the aforesaid

aspect of the matter more so, when no prejudice has allegedly been

caused to the accused for such investigation.

50. PW 36 has deposed that a joint surprise check was conducted on 22/5/2010

in the Guwahati Railway Station inside the Sampark Kranti Express while the

accused along with his wife was proceeding to Allahabad and during the

same, a sum of Rs. 6,31,000/- was recovered from the possession of the

accused. The accused was subsequently arrested. PW 8 in his deposition

has also deposed that a sum of Rs. 6,31,000/- was recovered from the

possession of the accused and his wife and from his personal purse

another sum of Rs. 7,176/- was recovered from the personal purse of the

accused during the joint check on that particular day. Some bank account

numbers, mobile numbers, two check books, one diary of Smt. Vimala

Kanojia and some medical documents of Indraprashtha Hospital Delhi, one

identity card of the accused, one 4 GB pen drive, one mobile phone of

Sony Ericson along with sim card was also seized by the CBI from the

accused vide Ext-15 joint surprise check memo and he proved his

signatures, Ext-15/1 to Ext-15/7. He also proved Ext-16 which is the

acknowledgement of receipt of price of train ticket in lieu of cancellation of

the same and the personal cash of the accused. PW 9 who accompanied PW

36 in the search of the office residence of the accused located near

Meghdoot Bhawan, Guwahati proved Ext-17 search cum seizure memo by

34

which a sum of Rs. 46,000/-, one brown colour telephone diary, one bunch

of documents in 20 sheets containing bank receipts, medical bill etc. were

seized and he also proved his signatures Ext-17/1 and Ext-17/2. He also

proved Ext-18, the inventory memorandum where the particulars of the

articles found in the said residence but were not seized were recorded and

he proved his signatures , Ext-18/1 to Ext-18/3 and the signatures of the

accused vide Ext-18/4 to Ext-18/6. He also proved Ext-19, seizure memo

and his signatures, Ext-19/1 to Ext-19/4 by which the CBI seized three office

files from the office of the accused at the ground floor of the house.

Similarly, PW 13 also deposed that he was present during the joint surprise

check and a sum of Rs. 6,31,000/- along with cheque book of oriental

bank pertaining to account No. 09082011003806, one cheque book of SBI

of A/c No. 30372970142, one personal diary of Vimala Kanojia, one note pad,

one attendant pass of Smt. Vimala Kanojia , one identity card of the

accused, one 4 GB pen drive bearing No. 529293369 and one mobile hand

set of Sony Ericson with sim card with No. 9435558006 was recovered

during the said check. He also proved his signatures , Ext-15(15) to Ext-

15(21). PW 27 has also proved his signatures vide Ext-19(5) to Ext-19(8)

on Ext-19, the search list prepared by the CBI. During his cross-examination,

he admitted that on 22/5/2010 he went to the Railway Station to drop the

accused as he was going to his house for treatment of his father and wife

and he put his signatures without knowing the contents thereof as per

direction of the CBI. PW 29 has also deposed that he accompanied the joint

team during the joint surprise check and during the check, a sum of Rs.

6,31,000/- was recovered from the accused from a black hand beg of “Tony

Make” and apart from that other articles were also seized from the

possession of the accused as well as his wife. He proved his signatures

vide Ext-15(22) to Ext-15(28). He further deposed that another sum of Rs.

7,176/- was recovered from the pocket of the accused and the same was

returned to him after the check and further amount of Rs. 1,501/- against

cancellation of the ticket was refunded to him vide Ext-16 and he proved

his signatures Ext-16(1) and Ext-16(2). During his cross-examination he

35

admitted that during the surprise check, the attendant pass of Smt. Vimala

Kanojia of Indrprashtha Apollo Hospital, New Delhi was also found. PW 33

in his evidence has deposed that during the check, a sum of Rs. 6,31,000/-

was recovered from the accused from a hand beg of “Tony Make” and apart

from that other articles were also seized from the possession of the accused

as well as his wife which includes one cheque book of SBI belonging to the

accused, one personal diary of the wife of the accused, one note pad

containing various phone numbers, one attendant pass of the wife of the

accused of Indrprashtha Apollo Hospital, New Delhi, identity card of the

accused, one 4 GB pen drive and a mobile handset with sim bearing No.

9435558006. He further deposed that the accused admitted before him that

he took loan from different persons but could not name them and after

some time he revealed that he has been obliged by certain people whom

he has favour during the routine course of business. The PW 33 further

proved his signatures, Ext-15(29) to Ext-15(35) being his signatures in

joint surprise check memo and Ext-16(5) on Ext-16 by which the amount

of Rs. 7,176/- which was recovered from the possession of the accused and

was later on refunded. During his cross-examination, he admitted that the

accused explained before the joint surprise check team that the

recovered money was taken as a loan from various persons for treatment

of his father as well as his wife and during the search one attendant pass

of the wife of the accused of Indrprashtha Apollo Hospital, New Delhi was

seized along with other documents.

51. Mr. B. M. Chaudhury, ld. counsel for the accused has submitted that from

the evidence of the aforesaid witnesses who participated in the joint

surprise check it would be apparent that the recovered amount was taken

from various persons including the DWs and the same was satisfactorily

explained to the team immediately during the joint surprise check and the

accused has also explained the source of the aforesaid money in his

statements recorded u/s 313 Cr. P. C. and as such the amount should

36

take place in statement B of the charge sheet which is the details of

movable and immovable assets acquired during the check period.

52. It is apparent from the conjoint reading of PW 8, PW 9, PW 13, PW 27, PW

29 and PW 33 that the aforesaid amount of Rs. 6,31,000/- was recovered

from the possession of the accused during the joint surprise check and

some documents which testifies the treatment of the wife of the accused

was also recovered. The accused explained to the team that the money was

borrowed from various persons for treatment. The said fact is further

corroborated by the evidence of PW 33 who has admitted in his cross-

examination that the accused divulged his source from which he

accumulated the aforesaid money during the joint surprise check itself and

from the evidence of PW 36 it can be held that on the basis of such

information only , the IO interrogated the contractors and the other persons

including the DWs. It has been established by way of cogent evidence

that all the contractors including the DWs stated before the IO that they

voluntarily gave loan to the accused for treatment of his wife and father

and DW 5 and DW 6 also went a step ahead in swearing two affidavits in

this regard but in-vain. This Court, therefore, has no hesitation but to held

that the amount recovered from the accused during the joint surprise check

was in fact the amount collected by the accused from various persons as

loan and /or financial help for the treatment of his father and wife and as

such the source being divulged by the accused can be safely recognized

as a known source. The view of the Court is further strengthened as all the

DWs and the contractors who were cited as prosecution witnesses including

the hostile witnesses did not shake during their cross-examination also and

maintained their versions intact. Therefore, This Court agrees with the

submissions made by Mr. B. M. Chaudhury and as such is of the view that

the aforesaid amount of Rs. 6,31,000/- is to be placed in statement B of the

charge sheet. Besides, the sum of Rs. 46,000/- which was recovered from

37

the house of the accused on 22/5/2010 is also to be included in the said

list, the source of which has been explained by the accused satisfactorily.

PW 36 has deposed that the said amount was recovered from the house

search of the accused and he proved the search list Ext-17 along with his

signatures , Ext-17(4) and Ext-17(5). He also proved his signatures Ext-18(7)

to Ext-18(9) on Ext-18 inventory list where the item No. 10, 16, 17, 19, 20,

21 and 26 were acquired by the accused during the years shown against the

items along with the value. He also proved the signatures of the accused

vide Ext-18(4) to ext-18(6) and the signatures of his wife vide Ext-18(13) to

Ext-18(15). The value of the inventory is quantified at Rs. 11,000/-

approximately in the charge sheet and the prosecution has been able to

prove the said amount. The accused has explained the source of the

aforesaid amount satisfactorily and as such the said amount can be treated

as an assets acquired during the check period and may be placed in

statement B of the charge sheet.

53. It is the evidence of PW 36 that he conducted a search in the house No.

137/B/28E/2 Rajapur , Allahabad, U. P. in presence of Sri Rajesh Prasad

Yadav and PW 29 accompanied him during the search. The house belong

to the accused and during the check Rs. 80,000/- and Rs. 50,000/- was

recovered from bed room No. 1 and bed room No. 2 respectively. During

the said search, an inventory list was also prepared and he proved his

signatures , Ext-89(6) to Ext-89(7) in the said list, Ext-89. The year of

purchase and value thereof as mentioned in Ext-89 were disclosed by the

accused himself. PW 34 corroborates the evidence of PW 36 regarding

recovery of the aforesaid sum. As per the inventory list, Ext-89 , the value

on the inventory is of Rs. 82,910/- approximately. The accused has not

disputed the aforesaid recovery and has explained the source that the same

was accumulated from the house rent received at Allahabad and it was kept

to meet up expenses when he visits his native place every year.

38

54. Mr. B. M. Chaudhury, ld. counsel has submitted that the source of the

aforesaid amount of Rs. 1,30,000/- was explained satisfactorily by the

accused before the IO also which is further corroborated by the evidence of

PW 34 who admitted during his cross-examination that the amount was

accumulated from his house rent and savings from his salary and as such

the source is a known one and hence the aforesaid amount along with the

sum of Rs. 82,910/- may be treated as a assets acquired during the check

period and may be included in statement-B.

55. From the conjoint reading of the evidence of PW 34 and PW 36 it appears

to the Court that the explanation of the accused recorded u/s 313 Cr. P. C.

detailing the source can be safely held as a known source of income and the

explanation of the accused is plausible. Therefore, the amount of Rs.

1,30,000/- recovered from the house at Allahabad and the inventory value

of Rs. 82,910/- may be safely treated as movable assets acquired by the

accused during the check period from known source of income and as such

the said amount figures in statement-B.

56. PW 18 Sri Sambhu Ram who was holding the record keeper of Allahabad

Sub-Registrar Office proved Ext-68, the original sale deed bearing No. 1681

in favour of Smt. Vimala Kanojia and smt. Sushma Chadhury by way of which

the vendor Md. Rasid sold a land measuring 0.279 hectors 226 Square

yards in favour of both the purchasers for an amount of Rs. 1,47,000/-. The

same was registered on 11/6/1996 and was executed on 19/4/1996. During

his cross-examination , he has admitted that the seller received a sum of

Rs. 68,250/- from Smt. Vimala Kanojia as a consideration for her share of

land measuring 105 square meter. It has not been disputed by the defence.

As such it can be safely held the aforesaid property was procured by the

accused during the check period and as such the amount of Rs. 68,250/-

39

for procuring the immovable asset may be placed in the statement B of the

charge sheet.

57. PW 24 Sri P. S. Katiyar who was the Valuation Office of Income Tax

Department Allahabad deposed that vide Ext-72 valuation report issued by

the Assistant Valuation Officer Sri S. S. Mahamad working under him, he

assessed the value of the house standing on the aforesaid plot of land as

Rs. 6,33,100/- as on 9/11/2010. During his cross-examination, he has

admitted that he made the valuation on visual inspections only as the

building was already completed one and the quality of the materials could

not be assessed. He further admitted that the accused supervised the work

himself during the construction of the house and vide letter dated

25/10/2010 the accused informed the department that the actual cost of the

building was Rs. 4.50 lacs approximately whereas as per the proposals

submitted by Mr. Paramananda Mourya, AMIA, Civil dated 10/9/1989 the

proposed value of construction was quantified at Rs. 3,99,882.30/- and he

admitted that he did not consider the estimate of Mr. Mourya. He further

admitted that vide letter dated 10/11/2010, the accused informed that he

spent Rs. 3,76,000/- from 14/12/1999 to 31/3/2000 and Rs. 74,000/- from

April, 2000 to June, 2000 for construction of the house and the same has

been reflected in Ext-73 at page 3.

58. Mr. B. M. Chaudhury, ld. counsel for the accused has submitted that the

valuation of the house at Rs. 6,33,100/- as on 9/11/2010 is not

acceptable in as much as the said valuation report is based on visual

inspection only as admitted by the PW 24 and the actual cost incurred by

the accused to the tune of Rs. 4,50,000/- may be treated as spent during

the check period.

40

59. From the evidence of PW 24 it appears that the inspection was done visually

only and the quality of materials used for the construction was not at all

considered. Besides, he has further admitted that the accused had intimated

the department that he spent Rs. 4,50,000/- in the construction supervising

himself the work and purchasing the materials himself which is supported

by the details he kept during construction and as such the amounts spent

by the accused seems to be more reliable. Besides, he has further admitted

that the aforesaid sum of Rs. 4,50,000/- was spent by the accused from

14/12/1999 to June, 2000 which falls within the check period and as such

the amount of Rs. 4,50,000/- may be treated as spent for acquiring the

immovable property and may be placed at statement-B.

60. It appears from the charge sheet that a sum of Rs. 2,54,000/- has been

shown in the statement B showing that plot No. 57 at Debghat, Jhalwa,

Allahabad was acquired during the check period in the name of Smt.

Vimala Kanojia. But the prosecution has not been able to prove the same

and as such the same is removed from the statement B. Not a single witness

has deposed regarding the said procurement of immovable asset and as such

the same is deleted from the list. But from the evidence of PW 10 it is clear

that the accused purchased a house in the year 2009 for Rs. 3,00,000/-

bearing house No. 8/146, Vikash Nagar, Lucknow (V.P.) which the accused

admitted vide his property returns Ext-29, Ext-30, Ext-31 and Ext-32. This

property is to be included in the statement-B of the charge sheet.

61. The accused along with his wife had a credit balance of Rs. 22,98,676/- as

on 22/5/2010 in the SB A/c No. 09082011003806 maintained in the Oriental

bank of Commerce, CSP Branch and the accused had a further credit

balance of Rs. 3,19,943.78/- in SB A/ c No. 30372970142 in SBI Allahabad

High Court Branch as on 13/4/2010. Mr. Sohan Lal Sharma, PW 12 who was

41

working as the Chief Manager, Oriental Bank of Commerce, Allahabad Branch

deposed that the aforesaid joint account was maintained by the accused and

vide Ext-50 letter, some informations regarding bank details pertaining to the

aforesaid account was communicated to the IO, PW 36. He proved his

signature Ext-50(1). He proved Ext-51 to Ext-67 pertaining to deposit of

Rs. 1 lac on 18/4/2007, Rs. 1 lac on 21/4/2007, Rs. 99,720/- on 26/4/2007,

Rs. 99,720/- on 7/5/2007, Rs. 33,500/- on 8/6/2007 for cash withdrawal by

Smt.Vimala Kanojia, Rs. 43,299/- dated 22/5/2008, demand draft of Rs.

43,200/- in the name of Ajay Kr. Garg Engineering College, Ghaziabad, cash

deposit of Rs. 45,000/- on 30/5/2008, Rs. 49,466/- deposit vide cheque. He

proved Ext-63 the statement of account in the said account for the period

1/3/2010 to 22/5/2010 showing a credit balance of Rs. 22,98,676/- and

Ext-63(3) is the credit entry in the said account for Rs. 49,466/-. He also

proved Ext-67, the statement from 7/11/2006 to 28/7/2010 and as per

that statement Rs. 57,279/- was credited on 24/10/2008, Rs. 58,760/- was

credited on 6/2/2009, Rs. 1,15,811/- was credited on 4/2/2009, Rs. 10 lacs

was credited on 11/4/2009, Rs. 5 lacs was credited on 13/4/2009, Rs. 4

lacs was credited on 11/6/2009 and Rs. 22,63,312/- was credited on

9/9/2009 and a further sum of Rs. 29,386/- was credited on 26/2/2010.

During his cross-examination, he has admitted that Ext-53, Ext-54 and Ext-

55 for the transactions dated 21/4/2007 , 26/4/2007 and 7/5/2007 relate to

the same transaction and the cheque was issued from Sr. Post Master ,

Pratap Garh and the amount of Rs. 10 lacs which was credited on 11/4/2009

was debited on the same day as the same was bounced due to mismatch of

the signature of the drawer. The transactions in the said account have also

been proved by Sri Robin Ch. Konwar PW 11 who was working as an

officer in the aforesaid bank in Panbazar, Guwahati from 2006 to 2007

and after that in Lakhtokia Branch up to 2009 and thereafter again in the

Panbazar Branch up to June, 2011. He proved Ext-38 to Ext-48, the

deposits of Rs. 49,000/- on 24/5/2007, Rs. 30,000/- on 25/7/2007, Rs.

49,900/- a TDR with effect from 6/3/2007 to 6/3/2008, a deposit of Rs. 10

lacs dated 94/2009 , a deposit of two cheque of Rs. 5 lacs each on

42

13/4/2009, deposit of cheque Rs. 4 lacs on 10/6/2009 and clearing voucher

Rs. 22,63,312/- dated 8/9/2009 and internal debit voucher of Rs. 3,44,682/-

transferred to the A/c No. 50761010000010 of Indraprashtha Medical

Corporation Ltd. as well as credit voucher for Rs. 50,000/- dated

5/10/2009. During his cross-examination, he admitted that vide Ext-41 the

maturity value of Rs. 57,378/- was reinvested for another period of 230

days w.e.f. 6/3/2008 and vide Ext-42 the cheque for Rs. 10 lacs was

returned unrealized as reflected in the letter dated 30/9/2010 and vide

Ext-49 an amount of Rs. 29,386/- was deposited through clearing dated

25/2/2010.

62. From the evidence of PW 11 and PW 12, it is crystal clear that a sum of Rs.

22,98,676/- was the credit balance in the joint account aforesaid as on

22/5/2010. Out of the aforesaid sum Rs. 22,63,312/- was issued by the

department as reimbursement of medical bills on 7/9/2009. Further, three

cheques bearing No. 291511 dated 10/6/2009 for Rs. 4 lacs , cheque

bearing No. 291705 dated 24/2/2010 for Rs. 29,368/- and another cheque

No. 291758 dated 31/3/2010 for Rs. 2,53,376/- were issued to the accused

as medical reimbursement bill which is proved by PW 10. Besides, two

cheques of Rs. 5 lacs each was issued by the department as GPF withdrawal

on 13/4/2009 which were also credited in the said account. Therefore, the

amount of Rs. 22,98,676/- (credit balance) in Oriental Bank of Commerce

can be safely included as a movable asset acquired within the check period

(statement-B).

63. PW 36 has deposed that during investigation the SB account No.

30372970142 pertaining to the accused maintained in SBI, Allahabad High

Court Branch was freezed and vide Ext-14 dated 7/8/2010 the details of the

account was furnished by the Branch Manager, of SBI, Allahabad High

43

Court Branch. PW 6 Sri Abhisekh Kumar, the then Branch Manager of SBI,

Allahabad High Court Branch deposed that vide Ext-10 letter dated

16/9/2010 forwarded the computerized statement with initial deposit of

Rs. 5,000/- and it appears that a sum of Rs. 75,814/- was deposited in the

said account on 10/9/2009. Again vide entry dated 6/4/2010 a sum of Rs.

2,53,376/- was deposited in the said account and vide Ext-13 letter dated

1/6/2010, the statement of the account from 1/3/2010 to 22/5/2010 was

forwarded to the CBI. The accused has explained in his statement u/s 313

Cr. P. C. that the sum of Rs. 75,814/- was received from the department as

2nd instalment of 6th CPC Pay Arrear and the cheque of Rs. 2,53,376/- was

received as medical reimbursement which has been found to be correct from

the evidence PW 10 who deposed that the sum of Rs. 2,53,376/- was paid

as medical reimbursement and a sum of Rs. 75,814/- was paid vide

cheque dated 7/9/2009 as 2nd instalment of arrear pay. Therefore, it can

be held that the sources of the aforesaid movable assets is a known one

and the sum of Rs. 3,19,943.78/- appearing as a credit balance in the

aforesaid account in SBI, Allahabad High Court Branch can be included in

the statement-B.

64. PW 30 Sri Narendra Pratap Singh who was posted at Postal Civil Division,

Lucknow deposed that vide Ext-81 he informed the IO that a motor cycle

advance of Rs. 30,000/- was taken by the accused in the month of August,

2002 and GPF amount of Rs. 40,000/- was withdrawn by the accused on

September, 2000. Whereas, LPC of the accused regarding house building

advance recovery of Rs. 11,600/- in 29 instalments @ Rs. 400/- per month

was also issued to him. The fact that a sum of Rs. 3,50,000/- was withdrawn

by the accused from GPF on 3/12/1999 has also been surfaced up during

the examination of PW 31 Nilima Mukharjee. PW 31 has deposed that on

30/4/2011 a letter was sent intimating that Rs. 3,50,000/- was paid to the

accused on account of GPF withdrawn on 3/12/1999 and it was further

informed that no house building advance was paid from the office but

44

recovery of HBA @ Rs. 400/- per month was deducted from his salary bill

from March, 1999 to May, 2000. He proved Ext-82 and his signature Ext-

82/1.

65. From the aforesaid evidence, it is established that the accused obtained a

motor cycle loan for Rs. 30,000/- and he procured one Hero Honda Motor

Cycle in the year 2002. In Ext-89 the inventory during the search in the

house at Allahabad, the said Motor Cycle has been shown to be purchased

for Rs. 38,000/-. But in the charge sheet the same has been shown as

procured for Rs. 41,418/-. This Court has not found any evidence showing

that the amount as mentioned in the charge sheet for procuring the said

vehicle was spent by the accused. On the contrary, PW 36 has admitted that

the values in the inventory were put as divulged by the accused.

Therefore, It can be held that sum of Rs. 38,000/- spent by the accused

to procure the aforesaid vehicle. Therefore, the sum of Rs. 41,418/-

appearing in schedule B may be replaced by Rs. 38,000/- and as such the

total value of movable and immovable assets acquired during the check

period (statement-B) comes around Rs. 43,75,780/- (rounded off).

66. Similarly after inclusion of the LIG house at Lucknow in the statement A

i.e. the assets at the beginning of the check period i.e. April, 1995 and after

removing the same from the statement B due to the reasons discussed

herein above, the total value of the assets at the beginning of the cheque

period (statement A) comes around Rs. 2,81,403/- (approx).

67. Similarly, from the evidence of the PWs, it can be safely held that the

accused withdrew a sum of Rs. 3,90,000/- towards GPF advance in the year

45

1999-2000, House Building Advance of Rs. 66,800/- in 1995, Medical

reimbursement deposited in the SBI A/c for Rs. 2,53,376/- in the year 2009-

10, interest on SB A/c No. 09082011003806 in the Oriental Bank of

Commerce to the tune of Rs. 33,964/- in the year 2009-10, again HB

advance of Rs. 10 lacs in the year 2009, Medical Advance of Rs. 4 lacs in

2009, reimbursement of medical bill for Rs. 22,63,312/- deposited in SB A/c

No. 09082011003806 in the Oriental Bank of Commerce in 2009-10,

reimbursement of medical bill for Rs. 29,386/- deposited in SB A/c No.

09082011003806 in the Oriental Bank of Commerce in the year 2009-10,

medical reimbursement received in cash for Rs. 13,558/- in the year 2009-

10, motor cycle advance of Rs. 30,000/- in the year 2000, net salary w.e.f.

1/4/1995 to 22/5/2010 of Rs. 14,88,671/-, arrear/DA etc. w.e.f. 1/4/1995

to 22/5/2010 for Rs. 1,73,265/-, income from TDR No. 227213 for Rs.

7,379/-, income from TDR No. 073130 for Rs. 4,872/-, income from TDR No.

09083451002565 for Rs. 15,811/-, interest on SB A/c No. 30075820693 for

Rs. 1,949/- and total income benefit of net salary and other bonus etc w.e.f.

6/11/79 to March, 1995 for Rs. 2,04,715/-. Besides, the amount which is

received as loan from various contractors including the DWs has also come

to him as an income and the sources being satisfactorily explained, the same

may also be included in the statement-C.

68. Mr. B. M. Chaudhury, ld. counsel has submitted that in the charge sheet it

has been shown by the prosecution that the accused received a sum of Rs.

50,000/- as gift from the two sons of the accused namely Sri Saurav

Kanojia and Sri Gaurav Kanojia and as such the same may also be included

in the said statement. The accused while explaining the source in purchasing

the gold bangle of Rs. 63,135.39/- by his wife as stated that his two sons

gifted Rs. 50,000/- @ Rs. 25,000/- each for the 25th marriage anniversary

of their parents and he contributed the additional amount to help his wife

in buying the bangle. From the evidence of PW 2, Sri Jitu Kalita , the

Manager of Tanishq, it is proved that the bangle was purchased by paying a

46

cash amount of Rs. 63,135.39/- and the invoice Ext-2 was duly proved.

Therefore, the explanation advanced by the accused regarding the source

of income is acceptable, more so when such types of gifts from the children

to their parents in the occasion of completion of 25 years of marriage is very

common in our society. Therefore, the aforesaid amount of Rs. 50,000/-

may be included in the statement of income of the accused during the check

period. Besides, another sum of Rs. 11,000/- which the accused has

explained to have saved from salary and is supported by PW 10 and Ext-26

is also included in the said statement and as such the total income received

by the accused during the check period in statement-C of the charge sheet

comes to Rs. 78,03,058/- (approx).

69. From the evidence, it is crystal clear that the accused spent a sum of Rs.

29,59,632/- from 4/4/2009 to 5/10/2009 for the treatment of his wife.

Besides, a gold bangle was purchased for Rs. 63,135/-. Further 1/3 rd of the

net salary of the accused quantified at Rs. 4,96,233/- was spent as

kitchen expense from 1/4/95 to 22/5/2010. Besides, total debit by the bank

in A/c No. 09082011003806 and SB A/c No. 30075820693 were of Rs.

8,481/- and Rs. 894/- respectively. In addition to that the wife of the

accused purchased one Nokia mobile handset mode No. 6300 from Bharali

Commercials Pvt. Ltd. Panbazar, Guwahati for a sum of Rs. 6,650/- and the

payment was made in cash. The said fact has been proved by Sri Bimal

Bharali PW 4, MD of the said establishment and he also proved the cash

memo dated 26/9/2010 vide Ext-7, the signature of Ankita Sharma vide Ext-

7(1) who was the sales representative of Nokia company.

70. PW 23 Sri Trilok Singh Khatri and PW 25 Sri R. B. Singh has deposed

regarding the educational fees paid by the accused for his two sons namely

Sri Gaurav Kanojia and Sri Saurav Kanojia respectively. PW 23 has deposed

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that vide letter dated 21/12/2010, Ext-70 Prof. P. K. Chopra , the Officiating

Director on that day of Ajay Kr. Garg Engineering College informed the CBI

that during 2005-06 to 2008-09 a sum of Rs. 3,41,450/- was paid by the

accused for the education of Sri Gaurav Kanojia and he proved Ext-70(2)

the aforesaid fee structure. Similarly, PW 25 also deposed that vide Ext-73

he informed the IO that a sum of Rs. 1,18,740/- was collected as fees from

Sri Saurav Kanojia for his education in MBA in IIT, Allahabad from July,

2007 to June, 2009 and he also proved his signatures vide Ext-73(3) to Ext-

773(5). From the aforesaid evidence, it can be safely held that the aforesaid

amount of Rs. 1,18,740/- and Rs. 3,41,450/- was spent by the accused for

the education of both his sons and hence, the aforesaid amounts may be

included in the statement of expenditure during the check period

(statement-D). Therefore, the total expenditure of the accused during the

check period comes around Rs. 39,95,215/- (approx).

71. In view of the aforesaid discussions, it is crystal clear that the quantum of

alleged disproportionate assets of the accused Sri Sunder Lal Kanojia @ Sri

Sunder Lal is as follows :

Disproportionate Assets = (B-A)+(D-C) or Assets - Savings

= (43,75,780 – 2,81,403)+(39,95,215 – 78,03,058)

= 40,94,377 – 38,07,843

= 2,86,534 (R/o)

Percentage of DA = DA/Income X 100

= 2,86,534/78,03,058 X100

= 3.67%

48

72. From the aforesaid discussions it has been established that the prosecution

could prove that the accused accumulated assets disproportionate to his

income for Rs. 2,86,534/- only which comes around 3.67% of his income.

The said amount comes within the permissible limit taking into consideration

the 15 years of check period and as such the accused is entitled to benefit of

doubt. As such it is held that the charge framed against the accused has not

been proved beyond reasonable doubt and the accused deserves acquittal

giving him the benefit of doubt. Before parting, this Court would like to

address the submissions made by Mr. B. M. Chaudhury, ld. counsel on the

point that the prosecution sanction was accorded by an incompetent

authority as he has admitted in his cross-examination that he was the

appointing authority of the accused and not the removable authority. In

support of his submissions he relied on a decision rendered by the Hon’ble

High Court reported in (2003)9 SSC 504 – P. A. Mohan Das Vs. State of

Kerala. This Court is of the view that the appointing authority is competent to

grant prosecution sanction and there is no infirmity in granting the

prosecution sanction by the PW 1 in the instant case. Besides, the decision

relied on by the defence is not applicable in the instant case as the facts and

circumstances of both the cases are different.

73. Mr. Basudeb Prasad, Ld. Special PP has also referred and relied on the

decisions rendered by the Hon’ble Apex Court reported in (1994)Cr.L.J 1224

(SC) and Appeal (Crl) No. 759/2001-K. Kunnuswami Vs. State of Tamilnadu.

But the decisions are not applicable in the instant case due to variation of

facts and circumstances of the instant case and has not been accepted by

this Court in view of the discussions made hereinabove.

74. In view of the aforesaid, it is held that the accused is not guilty of the charge

levelled against him and he is acquitted and set at liberty forthwith subject

49

to condition of bail bond u/s 437(A) of Cr. P.C. The bail bond stand cancelled

and the bailor(s) stands discharged. The amounts (cash) recovered/seized

from the accused is directed to be refunded to the accused, if not already

been refunded, after expiry of the appeal period on such applications made

by the accused in that regard. Any other articles seized during the

investigation is directed to be disposed of as per law. The case is

accordingly disposed of.

75. Send a copy of this judgement and order to the District Magistrate.

Judgment and Order pronounced and signed in open court on this 13th day of

August, 2015 under the hand and seal of this Court.

Dictated and corrected by:

Sri Raktim Duarah Sri Raktim DuarahSpecial Judge, CBI, Assam Special Judge, CBI, AssamCBI Additional Court No.1 CBI Additional Court No.1