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2023 (1) TMI 1035 - HC - Indian LawsMisuse of political position by the Accused / MLA / Minister - acquiring disproportionate assets - Criminal conspiracy - misappropriation - criminal breach of trust - cheating forgery fraudulent execution of deed of transfer containing false statement of consideration amount - acquiring assets disproportionate to known legal source of income by Anosh Ekka - acquisition of lands in violation of C.N.T. Act in the name of his wife Smt Menon Ujjana Ekka - applicability of presumption under Section 20 relating to Section 13(1)(e) of the P.C. Act. Assets - HELD THAT - The evidence of assets acquired during the check period is not under challenge nor in the name of which they have been acquired. The valuation of house has been disputed. There is no room to dispute the valuation of the land and flat purchased by registered sale deed or the vehicles and arms. Learned trial Court has given sufficient reasons for accepting the valuation report. The balance as standing in the bank accounts has also not been denied at any stage. Income - HELD THAT - There was sudden surge of the assets in the name of accused Anosh Ekka and his family members after he became minister in the State of Jharkhand. The accused has failed to account for acquisition of the assets which were disproportionate to his known source of income. Prosecution has thus proved the charge under Sections 13(2) r/13(1)(e) of the PC Act against the accused Anosh Ekka. As far as the complicity of the other accused persons is concerned as discussed above there is definite and clinching evidence that assets were acquired in the name of the co-accused persons namely Menon Ekka Jaykant Bara and Deepak Lakra (appellants in Criminal appeal no.328) and Gidyon Ekka Roshan Minz and Ibrahim Ekka (appellants in Criminal appeal no.327) . These evidence unerringly point to the active role of the appellant/accused persons in abetting the principal accused in acquiring disproportionate assets by the principal accused. A man is presumed to know the natural consequence of his act. To aid and abet means to help assist or facilitate the commission of a crime or to promote the accomplishment thereof or to help in advancing or bringing it about. The word abet includes knowledge of the wrongful purpose of the perpetrator and counsel and encouragement in the crime. It is to be born in mind that it is not necessary that an instigation should be only words and may not be conduct - In the present case from the evidence of purchase of plots of land flats and vehicles in their name without any other lawful source of income during the check period are evidence to show that the appellants namely Menon Ekka (wife of Anosh Ekka) Jaykant Bara Deepak Lakra and Gidyon Ekka Roshan Minz and Ibrahim Ekka (brother and nephew of Anosh Ekka) of Criminal appeal 328 and 327 entered into a conspiracy aided by their active role in commission of the offence of acquisition of disproportionate property. Judgment of conviction of these accused persons on the basis of Section 109 of the IPC for engaging in criminal conspiracy with the principal accused Anosh Ekka and aiding him in acquiring the disproportionate assets by different contrivances punishable under Section 13 (1)(e) of the PC Act is affirmed. Sentence - HELD THAT - Under Section 13(2) of the PC Act, 1988 before coming into force of 2014 amendment the minimum sentence of imprisonment was one year and the maximum was seven years and the convict shall also be liable for fine. Further Section 16 the Act of 1988 provides that where a sentence of fine is imposed the Court shall take into consideration the amount or value of property if any which the accused person has obtained or the pecuniary resources the accused person is unable to account for satisfactorily. Considering the crime test criminal test and comparative proportionality test laid down Hon ble the Supreme Court the sentence of imprisonment and fine imposed to the appellant Anosh Ekka and Menon Ekka does not require any interference by this Court and is accordingly affirmed. The argument questioning the power of the trial Court to order confiscation under Section 452 Cr.P.C. does not merit consideration in view of the law settled by Hon ble the Supreme Court in State of Karnataka v. J. Jayalalitha (2017) 6 SCC 263 at para 565 wherein it has been held that in the absence of any provision in the Prevention of Corruption Act excluding its operations to effect confiscation of the property involved in any offence thereunder the trial Court had power of confiscation under Section 452 of the Cr.P.C. Disproportionate assets were acquired by the accused person by commission of offence under the Prevention of Corruption Act and there are no infirmity in the order of confiscation of the disproportionate asset by the learned Court below. The Judgments of conviction and sentence against Anosh Ekka and Smt Menon Ekka is affirmed. With regard to other appellant accused namely Jaykant Bara and Deepak Lakra and Gidyon Ekka Roshan Minz and Ibrahim Ekka the Judgment of conviction is affirmed with modification of sentence. Appeal dismissed.
Issues Involved:
1. Conviction under Sections 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. 2. Conviction under Section 109 IPC read with Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. 3. Disproportionate assets and their valuation. 4. Evidence and burden of proof. 5. Confiscation of assets under Section 452 Cr.P.C. Issue-Wise Detailed Analysis: 1. Conviction under Sections 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988: The appellant was convicted for possessing assets disproportionate to his known sources of income. The prosecution established that during the check period from 10.03.2005 to 31.03.2009, the appellant acquired assets worth Rs. 57.01 Crore against pre-check assets of Rs. 92,827/-. The trial court found that the appellant failed to satisfactorily account for the disproportionate assets. 2. Conviction under Section 109 IPC read with Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988: The co-accused were convicted for abetting the principal accused in acquiring disproportionate assets. The evidence showed that assets were acquired in their names without any lawful source of income, indicating their involvement in aiding the principal accused. 3. Disproportionate assets and their valuation: The trial court meticulously listed and valued the assets acquired during the check period, including properties, vehicles, and bank deposits. The defense disputed the valuation of certain properties, but the court found the prosecution's evidence credible and unimpeachable. The court noted that the defense failed to provide satisfactory evidence to counter the prosecution's valuation. 4. Evidence and burden of proof: The prosecution's evidence included documentary proof of assets and bank statements. The defense's claim of income from gifts was unsupported by documentary evidence and was deemed implausible. The court held that once the prosecution established disproportionate assets, the burden shifted to the accused to explain the lawful source, which they failed to do. 5. Confiscation of assets under Section 452 Cr.P.C.: The court upheld the trial court's order of confiscation of disproportionate assets under Section 452 Cr.P.C., citing the Supreme Court's ruling in State of Karnataka v. J. Jayalalitha, which affirmed the trial court's power to order confiscation in the absence of specific exclusion under the Prevention of Corruption Act. Separate Judgments Delivered: The judgment of conviction and sentence against Anosh Ekka and Smt. Menon Ekka was affirmed. However, for Jaykant Bara, Deepak Lakra, Gidyon Ekka, Roshan Minz, and Ibrahim Ekka, the sentence was modified to five years of rigorous imprisonment and a fine of five lakhs each, with a default sentence of six months. Conclusion: The court dismissed the appeals, affirming the convictions and modifying the sentences for certain co-accused. The judgment emphasized the importance of credible evidence and the burden on the accused to satisfactorily account for disproportionate assets.
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