2020 (10) TMI 1102 - HC - Indian Laws

Possession of disproportionate assets - offence punishable under section 13 (2) r/with section 13 (1)(e) of the Prevention of Corruption Act, 1988 - HELD THAT - In this case, the appellants have demonstrated no prejudice whatsoever on account of the non-examination of the investigating officer. It is not the case of the appellants that they had offered any explanation to the investigating officer, which, the investigating officer, failed to investigate. The charts which Mr. Singh refers to are not documents but they are merely figures culled out by the learned Special Judge from the proven evidence on record, which was mostly documentary in nature. The investigating officer's examination was not required for proving such charts. Besides, in this case, most of the documents were admitted under Section 294 of Cr.P.C. without any objection from the appellants. All this indicates that the appellants suffered no prejudice whatsoever in this matter on account of the non-examination of the investigating officer - it is not possible to fault the prosecution case on account of the non-examination of the investigating officer in this matter. It is difficult to hold that the prosecution, in this case, has established the guilt of A.2 beyond a reasonable doubt. Therefore, the benefit of the doubt is due to A.2 in this matter. In so far as the sentence awarded to A.1 is concerned, there is no case made out for interference. There is no merit in the contention that the learned Special Judge has applied the 2014 amendment by which the minimum punishment is enhanced to 4 years. In this case, the learned Special Judge had not imposed minimum punishment upon A.1. The learned Special Judge rejected the contention on behalf of A.1 that some lenient sentences should be imposed upon A.1 - Even the fine imposed by the learned Special Judge is quite consistent with the parameters under Section 16 of the said Act. Accordingly, there is no case made out to interfere with the sentence imposed upon A.1. Appeal dismissed.

Issues Involved:
1. Breach of Section 17 of the Prevention of Corruption Act, 1988.
2. Lack of sanction under Section 197 CrPC.
3. Non-examination of the Investigating Officer.
4. Non-consideration of the defense under Section 313 CrPC.
5. Validity of the charts of income and expenditure.
6. Credibility of prosecution witnesses.
7. Complicity of the second appellant (A2).
8. Application of the 2014 amendment to the Act.
9. Harshness of the sentence imposed.

Detailed Analysis:

1. Breach of Section 17 of the Prevention of Corruption Act, 1988:
The appellants contended that the investigation was carried out by a Police Sub Inspector (PSI) instead of an Inspector of Police, which they claimed was a breach of Section 17 of the Act. The court noted that the FIR was registered by the Superintendent of Police, who authorized PSI Surve to investigate. The court referenced Ashok Tshering Bhutia v/s. State of Sikkim, where it was held that an irregularity in investigation does not vitiate the trial unless it causes prejudice to the accused. The court found no breach of Section 17 and noted that this issue was not raised before the Special Court.

2. Lack of sanction under Section 197 CrPC:
The appellants argued that there was no sanction under Section 197 CrPC, which should have precluded the Special Court from taking cognizance of the offense. The court held that this issue was not raised before the Special Court and found no merit in this contention.

3. Non-examination of the Investigating Officer:
The appellants claimed that the non-examination of the Investigating Officer was fatal to the prosecution's case. The court referred to several precedents, including Ram Singh v/s. State of U.P., which held that non-examination of the Investigating Officer is not fatal unless prejudice is demonstrated. The court found no prejudice caused to the appellants due to the non-examination and noted that the prosecution's case was mainly based on documentary evidence.

4. Non-consideration of the defense under Section 313 CrPC:
The appellants argued that their defense under Section 313 CrPC was not considered. The court found that the Special Judge had considered the defense but rejected it based on the overwhelming documentary evidence against the appellants.

5. Validity of the charts of income and expenditure:
The appellants challenged the charts of income and expenditure used by the Special Court. The court held that these charts were based on proven evidence and were not documents themselves. The court found no merit in the appellants' contention that these charts were invalid.

6. Credibility of prosecution witnesses:
The appellants questioned the credibility of several prosecution witnesses. The court found that the testimonies of these witnesses were credible and supported by documentary evidence. The court noted that minor discrepancies in the testimonies did not affect the overall credibility of the witnesses.

7. Complicity of the second appellant (A2):
The second appellant (A2) was convicted for abetting her husband in acquiring disproportionate assets. The court found that the evidence against A2 was insufficient to prove her complicity beyond a reasonable doubt. The court noted that suspicion, however high, cannot replace proof in criminal matters. Consequently, the court acquitted A2.

8. Application of the 2014 amendment to the Act:
The appellants contended that the Special Judge applied the 2014 amendment to the Act, which increased the minimum punishment. The court found that the Special Judge had not applied the 2014 amendment and had sentenced A1 based on the law prevalent during the check period.

9. Harshness of the sentence imposed:
The appellants argued that the sentence imposed was disproportionately harsh. The court found that the sentence was consistent with the law and that the Special Judge had not imposed the minimum punishment. The court found no grounds to interfere with the sentence.

Conclusion:
The court dismissed the appeal of the first appellant (A1) and upheld his conviction and sentence. The court allowed the appeal of the second appellant (A2), setting aside her conviction and sentence. The court ordered A1 to surrender before the Special Court within six weeks, failing which steps would be taken to apprehend him. No order as to costs was made in both appeals.

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