TMI Blog2023 (1) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Cr. Appeal (SJ) No.326 of 2020 With Cr. Appeal (SJ) No.327 of 2020, With Cr. Appeal (SJ) No.328 of 2020 - - - Dated:- 20-1-2023 - HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellant(s) : Mr. Ajit Kumar, Sr. Advocate Mr. Jitendra S. Singh, Advocate Mr. Sameer Ranjan, Advocate Mr. Amit Kr. Sinha, Advocate For the CBI : Mr. P. Pallav, DSGI Mr. Navneet Sahay, AC to DSGI Mr. Tauseef Jawed, AC to DSGI 1. All the three aforesaid Criminal Appeals (SJ) arise out of common judgment and sentence passed by learned Special Judge, CBI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the name of M/s Ekka Construction Pvt. Ltd. was floated and registered with the Rural Works Department of the Govt. of Jharkhand as Class-I A Contractor without fulfilling the eligibility criteria to project the proceeds of crime as untainted income. After investigation the case was found true against accused Anosh Ekka of acquiring disproportionate assets to the known source of income in his own name and in the name of his family members and relatives and associates. 6. (I) Assets at the beginning of the check period i.e. on 10.03.2005 (The assets which were declared by the accused on affidavit at the time of his nomination before the Returning Officer on 20.01.2005). Particulars of Assets Value Rs. In the name of Anosh Ekka Cash 50,000 Bank of India, Simdega (balance) 827 In the name of Menon Ekka, wife Cash 22,000 Bank of India, Simdega (balance) 20,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FD certificate no. 9445168 dt. 19.01.09(FD A/c no. 495845110001035), Bank of India, High Court, Ranchi 19.01.09 10,00,000/- 11 Endeavour Ford Car No. JH01M0001 purchased from M/s Akash Travels Agency, Ranchi Club Complex, Ranchi 20.06.06 5,00,000/- 12 Endeavour BS III Car Reg. No. JH01Z0001 purchased from M/s Jayshree Ford, Ranchi 24.01.09 57,569/- 13 Valuation report no. 229 dt. 08.08.11 of valuation officer, Income Tax, Ranchi, regarding valuation of house in Hinoo, Doranda, Ranchi 15.02.08 1,80,20,000/- In the name of Smt Menon Ekka, wife 14 Time deposit Passbook of A/c no.150101502 in Doranda PO 12.03.07 3,60,000/- 15 Time deposit Passbook of A/c no.150101504 in Doranda PO 12.03.07 6,00,000/- 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 22.12.06 1,00,000/- 32 Bolero Camper Jeep No. JH01W6577 purchased from M/s Auto Plannate Indostry Pvt. Ltd., Dhanbad 28.05.08 4,54,282/- 33 Bolero Jeep No. JH01W8077 purchased from M/s Auto Plannate Indostry Pvt. Ltd.,Dhanbad 26.05.08 4,70,000/- 34 4 RIP certificates (A/c no. 4632/72, 4639/72, 4633/72, 4641/72) each of Rs. 50,000/- of United Bnak of India, KolebiraBranch, Simdega December 2006 2,00,000/- 35 Balance in Account no. 9190 in Bank of India, Khuntitoli, Simdega 62,832/- 36 Balance in Account no. 3089 in JharkhandGramin Bank, Balalong. 6,49,440/- 37 Balance in PPF Account no. 11443968454in SBI, Simdega 55,094/- 38 Balance in SB A/c no. 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,023/- 48 Tata Safari Car No. JH06H0001 purchased from M/s Kraft Auto Private Limited. Thisacquisition was financed by M/s Hindustan Credit Corporation, Main Road, Ranchi. Loan was repaid within a year. 10,45,520/- 49 Toyota CAMRY Car no. JH20A0001 purchased from M/s BEBBCO Motors Pvt. Ltd., Adityapur, Jamshedpur 12.04.08 21,25,000/- 50 Four Tipper vehicles purchased from M/s JMA stores Pvt. Ltd.(Reg. No. JH09H6277, JH05S6277, JH10N 6277, JH11D6277 11.04.07 35,95,044/- 51 Hero Honda Motor Cycle No. JH01Y3988 purchased from M/s Shyama Automobiles Pvt. Ltd. Ranchi February 2007 33,824/- 52 Tractor No. JH01R9377 purchased from M/s Fogla Auto Pvt. Ltd. Ranchi 02.03.07 3,49,911/- 53 Verna CRDI(Sx) Car 10.03.08 8,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/5, Hari Om Tower Residential complex, Road(includes stampand registration charges) 29.07.06 9,07,784/- In the name of Roshan Minz, nephew (sister's son) 63 Flat no. 104, Sri Ram Regency Apartment, circular Road, Ranchi (includes stamp and registration charges) 02.09.06 13,56,353/- In the name of Jaykant Bara (Director M/s Ekka Construction Pvt. Ltd.) 64 Application for purchase of NSC Reg. No.4987 from Simdega Post office 30.03.07 1,00,000/- 65 TD Passbook of A/c no. 5413189 in Sub-Post office, HSG1, Simdega 08.01.07 2,79,000/- 66 TD Passbook of A/c no. 5413190 in sub-Post office, HSG1, Simdega 08.01.07 2,24,000/- 67 TD Passbook of A/c no. 3333053004 in sub Post Office 29.08.08 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for purchase of KVP(Reg. No.10575) from Simdega Post Office. 19.07.08 1,00,000/- In the name of Irin Ekka, daughter 81 Application for purchase of KVP (Reg. no.10575) from Simdega Post office 19.07.08 1,00,000/- In the name of Nishant Minz 82 Application for purchase of KVP (Reg. no.10578) from Simdega Post Office 19.07.08 1,00,000/- In the name of Nisha Minz 83 Application for purchase of (KVP Reg. no.10579) from Simdega Post Office 19.07.08 1,00,000/- In the name of M/s Motorist Inn, Pangabatala, Karjipara, Jalpaiguri(Director Smt Menon Ekka and Jaykant Bara) 84 Letter no. 197 dt. 31.05.11 of Additional District Sub-Registrar, Rajganj, Jalpaiguri enclosing 23 numb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Simdega received vide letter no. 11 dt. 16.06.11 of Distt. Sub Registrar, Simdega 10,25,590/- 3. Gross total income declared in IT return 19,48,152 Advance payments made to Samuel Barla, Sanika Munda, Sanika Oraon and Sheetal Kujur for the Namkum land which could not be registered 10,00,000/- 13 bighas of land purchased at Fatehpur Beri, Hauz Khas, N. Delhi from Virendra Mittal, Pradeep Mittal, Puneet Gupta and Naveen Gupta. 60,48,000/- 4. Part of gross not shown in the IT return 40,000/- Amount paid for registration and choice no. of Endeavour BS III Car Reg. no. JH01Z0001 53,386/- .366 bore rifle no. 131809 make Husquodarn and 25 pcs cartridges purchased from M/s N.C.Daw Co. G.T. Road Asansol 15,187/- 5. Gross total income declared in IT return 5,85,260/- Premium paid towards LIC policy no. 555027965 of LIC, Gumla Branch 1,00,000/- .32 bore p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39,70,000 Premium paid towards LIC policy no. 555220656 of LIC, Br. II, Ranchi 85,669/- Endeavour BS III Car Reg. No. JH01Z0001 purchased from M/s Jayshree Ford, Ranchi 57,569/- 13. Gross total income declared in IT return 53,68,040/- Premium paid towards LIC policy no. 554419148 of LIC, Gumla Branch 38,845/- Valuation report no. 229 dt. 08.08.11 of valuation officer, Income Tax, Ranchi, regarding valuation of house in Hinoo, Doranda, Ranchi 1,80,20,000/ 14. Gross Total income declared in IT return 38,42,121/- Premium paid towards LIC policy no. 554419148 of LIC, Gumla Branch 37,109/- Time deposit Passbook of A/c no. 150101502 in Doranda PO 3,60,000/- 15. Gross total income declared in IT return 17,22,216/- Premium paid towards LIC policy no. 554419148 of LIC, Gumla Branch 38,592/- Time depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice 1,00,000/- 24. Premium of life time plan no. 01851002 of ICICI Prudential Life Insurance 1,00,000/- TD Passbook of A/c no. 130102508 in Doranda Post Office 1,00,000/- 25. Income tax paid as per IT return 5,25,000/- TD Passbook of A/c no. 130102509 in Doranda Post Office 1,00,000/- 26. Income tax paid as per IT return 97,743/- TD Passbook of A/c no. 130102510 in Doranda Post Office 1,00,000/- 27. Income tax paid as per IT return 1,06,597/- TD Passbook of A/c no. 130102511 in Doranda Post Office 1,00,000/- 28. Income tax paid as per IT return 60,500/- TD Passbook of A/c no. 130102512 in Doranda Post Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37. Income tax paid as per IT return 66,316/- Balance in PPF Account no. 11443968454 in SBI, Simdega 55,094/- 38. Premium of premier Life Pension Plan policy no. 08278325 of ICICI Prudential Life insurance 5,00,000/ Balance in SB A/c no. 4910101100000 61 in Bank of India, Shyamali, Ranchi 1,085/- 39. Amount paid for purchase /transfer of shares of Motorist Inn pvt. Ltd. from Tapasi Majumdar, Mrinla Kanti Majumdar and Arup Goshwami. 59,95,000/- Balance in SB A/c no. 4958101100008 96 of Bank of India, High court, Doranda, Ranchi 14,791/- 40. Income tax paid as per IT return 16,77,704 Application for purchase of NSC Reg. no. 4989 from Simdega Post Office 1,00,000/- 41. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nchi 7,023/- 48. Amount paid for registration of Tractor Reg. no. JH01R 9377 733,- Tata Safari Car No. JH06H0001 for purchased from M/s Kraft Auto Private Limited. This acquisition was financed by M/s Hindustan Credit Corporation, Main Road, Ranchi. Loan was repaid within a year. 10,45,520/- 49. Amount paid for registration of Hero Honda CD Dawn M.Cycle Reg. No. JH01Y3988 1,973/- Toyota CAMRY Car no. JH20A0001 purchased from M/s BEBBCO Motors Pvt. Ltd., Adityapur, Jamshedpur 21,25,000/- 50. Registration and choice no. etc. charges for Verna CRDi(Sx) Car Regd. No. JH02L0001 55,625/- Four Tipper vehicles purchased from M/s JMA stores Pvt. Ltd.(Reg. No. JH09H6277, JH05S6277, JH10N 6277, JH11D6277 35,95,044/- 51. Registration and choice no. etc. charges fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Letter no. 754 dt. 24.05.11 of Manoj Kumar, Sub-Registrar IX, New Delhi enclosing the true copy of registered sale agreement dt. 23.10.08 pertaining to purchase of entire second floor of building no. 5, CC Basant Lok, Vasant vihar, New Delhi (signatory Menon Ekka) 63,60,000/- 59. Valuation report no. 226 dt. 05.08.11 of valuation officer, Income Tax, Ranchi regarding valuation of Dairy and Poultry Farm at Irba, Ormanjhi(near Appolo) 1,21,88,200/- 60. Certified copy of sale deed(in the name of Deepak Lakra) of house no. 963/C, sushant Lok, Phase I, Gurgaon, furnished, Gurgaon (includes stamp and registration charges) 58,30,890/- 61. Application for purpose of NSC (Reg. No. 4990) from Simdega Post Office 1,00,000/- 62. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 74. TD Passbook of A/c no. 130102504 in Doranda Post Office 1,00,000/- 75. TD Passbook of A/c no. 130102505 in Doranda Post Office 1,00,000/- 76. Application for purchase of NSC (Reg. no. 4988) from Simdega Post Office. 1,00,000/- 77. Certified copy of 1 registered sale deed regarding purchase of land at Simdega received vide letter no. 116 dt. 14.06.11 of Distt. Sub Registrar, Simdega 13,65,048/- 78. JH01V001 Scorpio Car purchased from M/s Auto Plannate Indostry Pvt Ltd., Dhanbad 9,81,836/- 79. Applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15,93,59,416/- 7. Relying on the above calculation the I.O. submitted that the accused Anosh Ekka possessed / acquired total assets during the check period in the following manner- Assets at the beginning of the Check period i.e. on10.03.05 (A) Rs. 92,827 Assets at the end of the check period i.e. on 31.03.2009 (B) Rs.15,93,59,416/- Income accrued during the check period from 10.3.2005 to 31.3.2009 (C) Rs. 2,90,53,934/- Expenditure incurred during the check period from 10.3.2005 to 31.3.2009 (D) Rs. 3,79,98,060/- Assets found disproportionate to the known sources of income which the accused cannot satisfactorily account for (B-A-C+D) Rs.16,82,10,715/- Percentage of Disproportionate Assets over and above income 579% 8. After cognizance of the offence was taken by the Spl. Judge (Vigilance) vide order dated 5.10.2009, charge was framed by the learned court below against accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prosecution has failed to adduce any evidence with regard to the other accused persons during the check period and only on the basis of presumption, it has been found that the property which existed in their name was the assets acquired by Anosh Ekka, which was absolutely illegal. 17. The learned court below fell in error to have illegally, rejected the valuation report of the building submitted by the defence, and if the valuation reports were taken into consideration, the discrepancies between the valuation report of the prosecution and the report of the defence would have come to fore. 18. It is submitted that with regard to confiscation /forfeiture of assets to the tune of Rs.16,62,73,066/-, as there was specific provision under Section 29 of the P.C. Act, 1988 as well as in Criminal Law Ordinance, 1944, which deals with the confiscation and attachment of properties and when there is specific law to this effect under the provisions of P.C. Act, 1988, then provisions under Section 452 Cr.P.C. is not applicable and as such, such finding given by the learned court below is illegal and without jurisdiction. ARGUMENT ON BEHALF OF THE APPELLANT IN CR. APPEAL NO. 327 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionality of the properties possessed by him. The onus to account for the disproportionate assets is cast on the Public Servant also in terms of Section 106 of the Indian Evidence Act, 1872. The trial Court has noted in paragraph no.2, page no.175 of the Judgment of the learned Trial Court, that the competent authority-Income Tax Department had served several notices and reminders under Sections 148,142(1) and 143(2) of the Income Tax Act, 1961 to the assessee company through its Director Menon Ekka and Jykant Bara, but the same was undelivered because the company was not found on the given address which was provided by the accused. ANALYSIS 25. After having considered the rival submissions, it must be clarified at the outset that presumption under Section 20 has no application in cases relating to Section 13(1)(e) of the P.C. Act. The appellants in Cr. Appeal Nos.327 and 328 of 2020 are not public servant and they have been held guilty for abetting the offence by aiding the principal accused Anosh Ekka in depositing and investing the ill-gotten money in different modes i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquired during the check period in the name of Deepak Lakra a. Entry 60-Purchase of house 34. Evidence of assets acquired during the check period in the name of Jaykant Bara a. Entry 64- Purchase of NSC b. Entry 65-75-Pass books of different Bank and Post office accounts 35. The assets in the name of M/s Ekka Construction Pvt. Ltd. with Directors, Jaikant Bara and Deepak Lakra has been projected in Sl. Nos. 49-58. Further, the valuation of dairy and poultry form in the joint name of Menon Ekka and Ekka Construction is at Sl. No.59 of the table. Similar evidence of assets acquired in the name of Deepak Lakra, Gidyonn Ekka, Roshan Minz and Jaykant Bara, Ibrahim Ekka and Others has been detailed in the table. The income and expenditure have also been tabulated in Table C and D of the trial Court Judgment. 36. The evidence of assets acquired during the check period is not under challenge, nor in the name of which they have been acquired. The valuation of house has been disputed. There is no room to dispute the valuation of the land and flat purchased by registered sale deed or the vehicles and arms. Learned trial Court has given sufficient reasons for accepting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea was taken before the income tax authority which was found to be false and not supported by book of accounts which was mandatorily to be kept in terms of Section 209 of the Companies Act,1956 and Section 44 (a)(a) of the Income Tax Act, 1961. Further, the order of the income tax authority (Ext 103 and 104) for the assessment year 2006 2007 and 2007 08, revealed that there was found no details to establish the credentials of the creditors/directors of M/s Teesta Rangit Pvt ltd and M/s Envision Pvt. Ltd like PAN details, ITR. The genuineness of the transactions could not be established. The claim of investment of Rs.1.85 crores was made in the company which had not carried out business transaction previously and it had no experience to carry out civil works. The beneficiary of the company was accused Menon Ekka and Jaykant Bara who had no experience about the aforesaid work. The learned trial court has dealt in detail with the reasons for not accepting this as income. 40. The following assets acquired during the check period in the name of the accused person has been proved by the prosecution: I. Total Asset in the name of Anosh Ekka and his wife Smt Menon Ekka at the beg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing evidence. The nature and extent of the burden cast on the accused is well-settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability. It has been held in M.P. v. Awadh Kishore Gupta, (2004) 1 SCC 691 5. Section 13 deals with various situations when a public servant can be said to have committed criminal misconduct. Clause (e) of sub-section (1) of the section is pressed into service against the accused. The same is applicable when the public servant or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Clause (e) of sub-section (1) of Section 13 corresponds to clause (e) of sub-section (1) of Section 5 of the Prevention of Corruption Act, 1947 (referred to as the old Act ). But there have been drastic amendments. Under the new clause, the earlier concept of known sources of income has undergone a radical change. As per the Explanation appended, the prosecution is relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the court that his explanation was worthy of acceptance. These principles has been reiterated by Hon ble the Supreme Court in State of Karnataka v. J. Jayalalitha, (2017) 6 SCC 263 43. From the above discussion it is apparent that there was sudden surge of the assets in the name of accused Anosh Ekka and his family members after he became minister in the State of Jharkhand. The accused has failed to account for acquisition of the assets which were disproportionate to his known source of income. Prosecution has thus proved the charge under Sections 13(2) r/13(1)(e) of the PC Act against the accused Anosh Ekka. 44. As far as the complicity of the other accused persons is concerned, as discussed above there is definite and clinching evidence that assets were acquired in the name of the co-accused persons namely Menon Ekka, Jaykant Bara and Deepak Lakra (appellants in Criminal appeal no.328) and Gidyon Ekka, Roshan Minz and Ibrahim Ekka (appellants in Criminal appeal no.327) . These evidence unerringly point to the active role of the appellant/accused persons in abetting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber of the criminal conspiracy for a public servant to commit any offence under the PC Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the Court of a Special Judge having jurisdiction in the matter. 47. In the present case from the evidence of purchase of plots of land, flats, and vehicles in their name without any other lawful source of income during the check period are evidence to show that the appellants namely Menon Ekka (wife of Anosh Ekka), Jaykant Bara, Deepak Lakra and Gidyon Ekka, Roshan Minz and Ibrahim Ekka (brother and nephew of Anosh Ekka) of Criminal appeal 328 and 327 entered into a conspiracy, aided by their active role in commission of the offence of acquisition of disproportionate property. Judgment of conviction of these accused persons on the basis of Section 109 of the IPC for engaging in criminal conspiracy with the principal accused Anosh Ekka and aiding him in acquiring the disproportionate assets by different contrivances punishable under Section 13 (1)(e) of the PC Act is affirmed. SENTENCE 48. Under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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