1. This criminal revision has been preferred by the accused petitioner for quashing the impugned order of framing charge and also the proceeding in the Special Case No. 28(c)/90 under S. 5(1)(e) read with S. 5(2) of the Prevention of Corruption Act, 1947 pending in the Court of Special Judge, Assam, Guwahati.

2. Petitioner was the Deputy General Manager and was officiating in the post of General Manager (Administration), till April, 1988. On21-3-88 one Shri S.K Saikia, Superintendent of Police, CBI/ACB, Shillong lodged an FIR on informations, alleging inter alia that the petitioner had amassed huge wealth by dishonest and corrupt means during his service career which was grossly disproportionate to the known source of income of the petitioner. Further, it was alleged that the petitioner had constructed a two storied palatial building in the name of his wife Mrs. Era Bezbaruah and found to be in possession of disproportionate assets to the tune of Rs. 2,50,000/- approximately. During the investigation some documents from the house of the accused petitioner including a file of Mrs. Era Bezbaruah (4 nos.) containing documents pertaining to (contd. on col. 2) income, land, property (SI. No. 21), wherein it was disclosed that during the check period, i.e 1-11-81 to 22-3-88, the petitioner was found in possession of total assets worth of Rs. 8,22,796.53/- and the petitioner could satisfactorily account for Rs. 2,75,872.51/- and thereby total, disproportionate assets in possession of the petitioner during the check period was to the tune of Rs. 5,46,923.57/-. The total break up given in the chargesheet and in the order of charge framed by the learned Special Judge (Annexure VII to the petition) is as follows:

The total break up according to the chargesheet submitted by CBI: A) Assets at the begining of check period Rs. 1,27,415.45/- B) Assets at the close of the check period Assets acquired during the check period Rs. 9,50,211.53/- (B − A) Rs. 8,22,796.53/- C) Income and other receipts during the check period Rs. 4,21,447.28/- D) Expenditure during the check period Rs. 1,45,574.77/- Likely savings (C − D) Rs. 2,75,872.51/- Assets acquired during the check period Rs. 8,22,796.08/- Likely savings— Rs. 2,75,872.51/- Total disproportionate assets during the check period Rs. 5,46,923.57/- The total break up according to the order of charges framed by the trial Court: Total assets at the beginning of a) Check period, i.e Anterior assets Rs. 1,27,425.45/- b) Savings Rs. 1,45,574.77/- c) Total assets the petitioner should have Rs. 2,72,990.22/- d) Assets at the close of check period Rs. 10,53,313.02/- Total disproportionate assets the petitioner could not satisfactorily account for Rs. 7,80,322.80/- (Expenditure figure was wrongly taken as savings figure)

3. In para 10 of the chargesheet the value of the building was included in the assets of the petitioner at the close of the check period amounting Rs. 8,55,065/- but the said value, has been reduced to Rs. 6,81,000/- (Annexure VI to the petition) after a re-valuation report by the Public Prosecutor, C.B.I The accused petitioner had shown the value of the house i.e the cost of construction of the building at Rs. 2,50,000/- which was based on Assam PWD's prevailing rates while according to the Management of OIL the total remitted cost of the building on 20-4-87 was Rs. 3,14,0001-. The petitioner's assertion was that the land and building as shown in the Income-tax Return of Mrs. Era Bezbaruah, wife of the petitioner (Document 3 of the prosecution) is the exclusive property of petitioner's wife who was an income tax payee. With these materials as indicated above by the accused petitioner the point for consideration for quashing the proceeding are:

(a) Whether the charge framed under S. 5(1)(e) S. 5(2) of the Act was based on consideration of the record of the case and the documents submitted therewith and were sufficient for presuming the petitioner guilty under the said sections of the Act?

(b) Whether the property in the name of the wife of the petitioner Mrs. Era Bezbaruah is a benami property? and

(c) Whether the materials on record, if unrebutted, is such, on the basis of which conviction under the said sections can be said unreasonably possible?

4. In this revision petition Mr. Choudhury, learned counsel for the petitioner invited Court's attention to the record, i.e, documentary and oral evidence, on which the prosecution based its charges against the accused petitioner, contending that the trial Court had gone wrong in framing charges holding that there was disproportionate excess asset of Rupees 8,80,322.30/-. Further contention of Mr. Choudhury was that the trial Court had committed an error apparent on the face of the record, in arriving at the figure shown in the chargesheet as expenditure (Rupees 1,45,575.77) which was shown in the order of the charge as savings by ignoring material piece of evidence, resulting in grave injustice to the petitioner while excess asset was shown against the petitioner. The trial Court did not consider the building as the property of the wife of the petitioner holding wrongfully the landed property as well as the building as benami in complete violation of law. According to the learned counsel if the value of the building with land is deducted from the account, alleged to be disproportionate, there will remain nothing as disproportionate amount.

5. Section 5(1)(e) of the Act reads as follows:

“Section 5(1)(e): A public servant is said to commit the offence of criminal misconduct — if he 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 sources of income.”

A reading of the section transpires that it is not mere acquisition of property that constitutes an offence, under the provisions of the Act but its failure to satisfactorily account for such possession that makes the possession objectionable as offending the law. In the recent decision of the Apex Court, M. Krishna Reddy v. State Deputy Superintendent Of Police, Hyderabad. of Police, Hyderabad, (1992) 2 UJ (SC) 613 : (1993 Cri LJ 308) it was held that to substantiate a charge under S. 5(1)(e) of the Act the ingredients to be established by the prosecution are (1) accused is a public servant, (2) the nature and the extent of pecuniary resources or property were found in his possession or any person on his behalf, (3) what were the known sources of income and (4) that the property/resources found in possession of the accused or any person on his behalf were disproportionate to his known source of income. After proving these requirements by the prosecution, the burden for satisfactorily accounting for possession of such resources or property shifts to the accused.

6. In this case it appears that, the prosecution in its chargesheet showed Rupees 1,45,574.77/- as expenditure which the Special Judge has shown as savings in its calculation in the order of framing charges. This resulted in overlooking the actual savings and expenditure of the accused as recorded in the chargesheet (document 5), and sanction order (document 34). On perusal of the document 34 it is evident that, the aforementioned amount of expenditure has been elaborately explained vide paras 9 and 10 of Annexure V and in paras 10 and 11 of document 34. Further Annexure V of the petition disclosed that the anterior assets and the savings (prior to check period and during the check period respectively) was Rupees 4,03,287.96/- which is as follows:

Anteriod assets …….Rs. 1,27,415.45/- Savings …….Rs. 2,75,872.51/- Total Rs. 4,03,287.96/-

(Vide Annexure V para 13)

Accordingly the alleged disproportionate assets should be Rs. 6,50,025.06/- as assumed by the prosecution. This would be as follows:

Total assets (as per learned Spl Judge's order of framing charges) (Annexure VII) ……Rs. 10,53,313.02/- Saving and anterior assets ……Rs. 4,03,287.96/- Total Rs. 6,50,025.06/-

7. Allegation of benami property of the petitioner shown in the name of his wife Mrs. Era Bazbaruah has been challenged by the petitioner on the ground that the materials, i.e, income-tax return which is the document seized and relied by the prosecution clearly proved the petitioner's case (account of Rs. 6,50,025.06/-) that the evidence available from the income-tax return of Mrs. Era Bezbaruah (document 3) is more than sufficient to discharge the petitioner and allegation that the Special Judge has committed an error on the face of the record in arriving at the figure by conveniently ignoring this material piece of document of the prosecution find force in favour of the petitioner.

8. During the investigation the Investigating Authority collected many documents including the Income-tax Return (document 3), agreement of lease deed (document 7), file of Mrs. Era Bezbaruah regarding income-tax (document 14) and the files containing photo copies of correspondences made to the petitioner during departmental enquiry conducted by the Vigilance Department of Oil India Limited (document 33 and Annexure I to the petition). The Investigating Officer during investigation examined many persons acquainted with the facts and circumstances — they are — Nabin Chandra Das, Mandal (P.W 9), Sonwarmal Jha (P.W 2) and M. Choudhury, Income-tax Officer, Ward-I, Digboi (P.W 7). Document 3, i.e Income-tax Return relating to the period 1985–86, 1986–87 and 1987–88 has given detailed sources of income of Mrs. Era Bezbaruah including the loan she had taken for construction of the building which has been accepted by the income-tax department. Apparently Mrs. Era Bezbaruah is an income-tax payee. In the chargesheet (Annexure V) while calculating the total income of the petitioner the business income of his wife Mrs. Era Bezbaruah was also taken into account. The detailed account regarding her source of income and receipts towards the construction of the house is explained vide the document 3.

9. Document 3, i.e the Income-tax Return, which is the main material document of the prosecution, need some discussion. It is to be examined if this document and the valuation of the building (Annexure VI of the petition) can be taken into consideration to decide whether there will be no amount to be disproportionate assets against the accused. Mrs. Era Bezbaruah has her own source of income and from this she constructed the house on a plot of land gifted to her by her late mother. In the Income-tax Return (document 3) for the assessment year 1985–86 detailed account of amount and the building of Mrs. Era Bezbaruah was given. A plot of land measuring 3 Kathas in Dag No. 1202, Patta No. 76 is received through a gift from Smti Charulata Bhuyan, mother of Mrs. Era Bezbaruah vide registered Gift Deed No. 8561 dated 7-11-81 and 10389 dated 23-12-81. P.W 9 Nabin Das, Mandal in the SDC office, Dispur Circle stated before the Investigating Officer that under the said Dag number and Patta number more than 8 Bigha 3 Katha 12 Lechas of land belonged to Smti Charubala Bhuyan, mother of Mrs. Era Bezbaruah and that as per record mutation in the name of Charulata Bhuyan entered into file No. 6/2/44/78 on 21-4-79 by Addl. Deputy Collector vide order No. 826/53-54 dated 21-4-79 of the SDC, as maintained in the remark column of the records. Shri M. Chakraborty (P.W 7) admitted before the Investigating Officer that Mrs. Era Bezbaruah filed her return of income for the assessment years 1985–86 to 1987–88. Income-tax Return (document 3) disclosed that after completion of the ground floor of the building it was given on rent to M/s. Mayur (Plywood Industries) for the residential purposes of its Managing Director (P.W 12) who was also examined by the Investigating Officer. He stated that the house was tenanted to him by Mrs. Era Bezbaruah w.e.f 1-2-84 at the rate of Rs. 1500/- per month as per lease agreement entered under his signature. This lease agreement was collected by the Investigating Officer (document 7).

10. In Krishnanand Agnihotri v. State of M.P, (1977) 1 SCC 816 : AIR 1977 SC 796 : (1977 Cri LJ 566): the Apex Court held (Para 26):—

“The burden of showing that a particular transaction is benami and the owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof.”

11. In the case of M. Krishna Reddy v. State Deputy Superintendent Of Police, Hyderabad. (1993 Cri LJ 308) (supra) the Apex Court set aside the conviction of the appellant under S. 5(1)(e) and sentence of imprisonment and fine and allowed the appeal by relying on Agnihotri's case (1977 Cri LJ 566) (SC) (supra). In that case the allegation was that there were some benami transaction and so the appellant was not entitled to any deduction. The Apex Court allowed deduction to amount of Rs. 2,09,095.28/- from the value of total disproportionate assets of Rs. 2,37,842.00/- relying on unassailable documents, such as, Income-tax Return of his son-in-law Dr. K. Ravindra Reddi, wealth-tax return of his wife and oral testimony of the Income-tax Officer. In Niranjan Singh Karam Singh v. Jitendra Bhimraj, (1990) 4 SCC 76 : AIR 1990 SC 1962 : (1990 Cri LJ 1869) the Apex Court held (Para 7):—

“It seems well settled that at the Ss. 227-228 stage, i.e, stage of framing the charge, the Court is required to evaluate the material and documents on record with a view of finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.”

12. Mr. Hazarika, learned Public Prosecutor, C.B.I made his submission relying on (1990) 4 SCC 76 : AIR 1990 SC 1962 : (1990 Cri LJ 1869) (Niranjan Singh Karam Singh v. Jitendra Bhimraj) that it is the trial Court which would sift and evaluate the material documents on record with a view to find out the existence of all the ingredients of the offence. After proceeding in the light of this judgment the Special Judge found a prima facie case against the accused petitioner under S. 5(1)(e) read with S. 5(2) of the Act. He further submitted that at this initial stage the proceeding should not be quashed and if the accused petitioner has a good case obviously it will come out in the trial. In this case as discussed above the accused petitioner confined his submission to the documents collected during the investigation which are the documents of the prosecution and the statements of the witnesses as recorded by the Investigating Officer.

13. In view of the order of the charge (3rd para) the interpretation of the words “satisfactorily account for”, as submitted by Mr. Choudhury, the petitioner had explained his stand on the basis of the Income-tax Return (document 3) which is the document relied by the prosecution and submitted that if the construction work in the name of the wife of the petitioner was excluded there will be no disproportionate asset. While interpreting the words “satisfactorily account for” in AIR 1960 SC 7 : (1960 Cri LJ 131) (CSD Swami v. The State) the Apex Court held that the legislature has advisedly used the expression “satisfactorily account”, and cast a burden on the accused 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. If the prosecution fails to establish that the property or any benami property included in the assets of the accused, then the question of ‘satisfactorily account for’ total assets by the accused does not arise at all. In this case in hand prosecution failed to establish on the materials collected by it that the land and building in the name of the wife of the petitioner was a benami property and in that event the valuation of the land and property standing in the name of Mrs. Era Bezbaruah is to be excluded from the total assets of the accused petitioner as materials on record clearly established that land and the building were acquired by Mrs. Bezbaruah from the source of her income as explained in document 3, i.e, the Income-tax Return, and the statement of the P.Ws 7, 9 and 12. In my view exclusion and non-consideration of the document 3 collected by prosecution, at the Ss. 227-228 stage, i.e, stage of framing charge vitiated the evaluation of the materials and documents on record to find out a prima facie case against the accused petitioner. The learned Public Prosecutor, C.B.I relied upon the following decisions of the Apex Court:

1. 1992 Supp (1) SCC 222 : AIR 1991 SC 1260 : (1991 Cri LJ 1438) (para 63)

2. (1992) 3 SCC 317 : (1992 Cri LJ 1956)

3. AIR 1960 SC 7 : (1960 Cri LJ 131)

4. (1981) 3 SCC 20 : AIR 1981 SC 1183 (para 12)

5. (1983) 1 Gauhati LR 109 (NOC 57)

6. AIR 1954 SC 359 : (1954 Cri LJ 1002) (paras 9, 10 and 11)

In this case the accused petitioner made reliance entirely on the materials collected by the prosecution which, in my view, requires consideration from a different perspective to consider the case of the petitioner. In that view of the matter I find no support of those references as the facts and circumstances of this case warrant a different view.

14. From the above discussion, decision requires whether the charge framed by the Special Judge under the said sections of the Act deserve to be quashed at this initial stage. In (1988) 1 SCC 692 : AIR 1988 SC 709 : (1988 Cri LJ 853) (Madhavrao Jiwaji Rao Scindia v. Sambhaji rao Chandrojirao Angre) the Apex Court held (para 7):—

“The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

In the light of this decision I hold that the inclusion of property of the wife as benami, without evaluating the materials on record, i.e document 3 and statements of P.Ws 7, 9 and 12 the charges framed under S. 5(1)(e) of the Prevention of Corruption Act, 1947 are vitiated as ingredients of the said sections were not established prima facie. Materials collected by the prosecution during the investigation clearly establish that the property alleged to be benami property of the petitioner in the name of his wife is her Own property acquired by her from her own source of income. In that event, if the valuation of the land and the building is excluded from the total assets of the petitioner there will be no disproportionate income.

15. The important and vital material on record was not considered by the learned Special Judge in framing the charge under S. 5(1)(e) read with S. 5(2) of the. Act. Those materials on record are sufficient which give a satisfactory account for total assets of the accused petitioner. I find it a fit case to interfere with the order of framing of charge under the said sections of the Act and accordingly I quash the same. In the result the revision petition is allowed.

16. Revision allowed.