Dismissed

State v. Pratap Ch.Suar

Orissa HC16 Aug 2021CRLLP/15/2011

Case brief

AI extract

What is this about?

The High Court of Odisha dismissed a CRLLP petition seeking leave to appeal against an acquittal. The trial court had acquitted the respondent of disproportionate assets charges under the Prevention of Corruption Act, accepting defence evidence. The High Court found no perversity in the acquittal and declined to grant leave to appeal.

What did the court decide?

Leave to prefer appeal under Section 378 Cr.P.C. was denied and the CRLLP petition was dismissed.

State Vs Pratap Ch.Suar — Corruption | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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CRLLP No.15 of 2011

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From the judgment and order dated 09.02.2010 passed by the Special Judge, Vigilance, Berhampur in T.R. No. 75 of 1998.

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----------------------------- State of Odisha ……… Petitioner
-Versus-
Pratap Chandra Suar ……… Opp. party
For Petitioner: - Mr. Sangram Das Standing Counsel (Vig.)
For Opp. party: - Mr. Srinivas Mohanty Advocate ----------------------------
P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO
--------------------------------------------------------------------------------------------------- Date of Hearing: 06.08.2021 Date of Order: 16.08.2021 ---------------------------------------------------------------------------------------------------

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P R E S E N T:

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S.K. Sahoo, J . The State of Odisha has preferred this CRLLP petition

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under sections 378(1) and (3) of Cr.P.C. for grant of leave to prefer an appeal against impugned judgment and order dated 09.02.2010 passed by the Special Judge, Vigilance, Berhampur in T.R. No.75 of 1998 in acquitting the opposite party Pratap Chandra Suar of the charges under section 13(2) read with

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section 13(1)(2) of the Prevention of Corruption Act, 1988 (hereafter ‘1988 Act’).

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The prosecution case, in short, is that the opposite party Pratap Chandra Suar entered into OSRTC Service in June 1956 as Traffic Inspector followed by his promotion as the A.T.M. in the year 1971 and he was promoted as the D.T.M. in the year 1984 and continued as such. All his three brothers and sisters were married and were living separately. He had landed properties extending to 40 Bharanas till the death of his father in the year 1992 and thereafter the same remained under the joint possession of himself and his brothers. He married to Saraswati Suar in the year 1962 and was blessed with two sons and two daughters and the daughters who got married long back. His eldest son got employed in NTPC since 01.09.1987 but his other son was a student of Engineering and unmarried. His residential house stood in the name of his wife and at the time of search and check, it came to the notice of the vigilance police that as against his income of Rs.6.92 lakhs which he earned since 1956 till 10.01.1992, his expenditure during that period came to Rs.5.00 lakh and thus his savings came to Rs.1.92 lakhs and that as against this probable savings of Rs.1.92 lakhs, he got assets worth of Rs.12.24 lakhs in excess of his said savings and

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accordingly, after investigation, the vigilance police of Berhampur placed charge sheet against the opposite party showing therein that as against his total income of Rs.10.53 lakhs during the said period, he incurred expenditure of a sum of rs.7.14 lakhs, that as against the balance of Rs.3.39 lakhs being his probable savings, he had disproportionate assets worth of Rs.8.51 lakhs and that hence he was liable for punishment under section 13(2) of the 1988 Act.

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The opposite party was charged under section 13(2) read with section 13(1)(2) of the 1988 Act on the accusation that during the period from 18.06.1956 to 10.01.1994, he being the Traffic Inspector, then the A.T.M. and then the D.T.M. under the O.S.R.T.C., Cuttack acquired assets worth of Rs.8.50 lakhs being disproportionate to his known sources income during the period, to which he pleaded not guilty.

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To prove its case, the prosecution examined thirty three witnesses. P.W.1 is the then D.T.M., Cuttack, who had prepared the pay particulars of the opposite party vide Ext.1. P.W.2 is the then M.D. of O.S.R.T.C., Bhubaneswar and he had furnished the property statement of the accused vide Ext.2. P.W.3 produced the certified copies of the registered documents vide Exts.3 to 7. P.W.4 is the Branch Manager of I.O.B. who

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issued the certified copy of the ledger relating to the account of the wife of the accused vide Ext.8. P.W.5 is an official of P.N.B., Berhampur who issued the certified copy of the S.B. account of the son of the accused vide Ext.9. P.W.6 and P.W.7 are the brother’s son and brother of the opposite party respectively P.W.8 is the father-in-law of the daughter of the accused and he stated about the non-receipt of dowry by him from the accused. P.W.9 is the tenant of the house of the accused who stated that he was paying Rs.2,000/- towards rent to the accused. P.W.10 and P.W.11 are the witnesses to the house search of the accused as per the search warrant vide Ext.10 and the search list Ext.11. P.W.12 is the clerk of the Registration Office, who prepared the copies of public documents vide Exts.3 to 6. P.W.13 is the goldsmith who weighed the gold and silver ornaments found from the house of the accused. P.W.14 is the clerk in the office of the C.S.O., Chhatrapur who proved the rate chart of paddy. P.W.15 being the Building Inspector of P.W.D. estimated the cost of the building of the accused. PW.16 is a statistical investigator and he furnished the estimated statement showing the per capita expenditure of the family of the accused on food, fuel, light, clothing and foot wear and proved his report vide Ext.41. P.W.17 is a witness to the search of the house of the accused. P.W.18 is

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the then Addl. Executive Officer of Berhampur Municipality and he proved the matters relating to holding tax of the house of the accused. P.W.19 is the then Statistical Officer of Berhampur who furnished the yield rate of paddy vide Ext.42. P.W.20 is the Executive Engineer (Electrical) who furnished the statement of energy charges of the house of the accused. P.W.21 is the Special Officer of the B.D.A. and he stated that the accused deposited some advance in the B.D.A. Office for a piece of plot. P.W.22 is the Labour Welfare Officer of O.S.R.T.C. and he proved the property statement of the accused vide Ext.2. P.W.23 is the Junior Accountant of O.S.R.T.C., Jeypore and he proved the seizure of 13 volumes of Pay Acquaintance Roll Registers under seizure list vide Ext.43/1. P.W.24 is the then Officer in-charge of Berhampur P.S. and he stated that he registered the case as per F.I.R. vide Ext.44. P.W.25 is the then Administrative Officer of L.I.C. who stated about the L.I.C. premium deposits of the accused. P.W.26 is the Junior Accountant of Rourkela Improvement Trust and he did not say anything. P.W.27 is the then Tahasildar of Chikiti who furnished the land particulars of the accused. P.W.28 is the Income Tax Officer of Berhampur and he stated that neither the accused nor his wife furnished any income tax returns. P.W.29 is the then A.R.T.O., Koraput and he

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stated that the scooter bearing registration No.OSK 9819 worth of Rs.17,000/- stood in the name of the son of the accused. P.W.30 is a Lecturer in M.K.C.G. Medical College and Hospital, Berhampur who being a tenant in the house of the accused, stated that he was paying Rs.800/- per month towards rent to the accused. P.W.32 is the then C.M.D., O.S.R.T.C., Bhubaneswar and he furnished the property statement of the accused vide Ext.2. P.W.32 is the then D.T.M., Bhawanipatna and he stated to have furnished the pay particulars of the accused vide Ext.19/1. P.W. 33 is the informant -cumInvestigating Officer of the case.

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The son of the younger brother of the accused being examined as P.W.6 stated about his family genealogy and further stated that his father and the accused were living separately. His younger brother (P.W.7) stated that he and the accused were residing separately but in joint family and that they had about 40 Bharanas of ancestral agricultural land.

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The informant (P.W.33) who is also the Investigating Officer of the case stated that on 17.02.1994 he lodged the F.I.R. (Ext.44) before the Superintendent of Police (Vigilance), Berhampur in connection with the disproportionate assets of the accused and that upon the direction of the S.P, he took up

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investigation of the case. He obtained search warrant from the C.J.M., Berhampur and on 09.01.1994 he searched the house of the accused at Chikiti Bangala street of Berhampur in presence of the wife of the accused and found different household articles, gold and silver ornaments and documents relating to the Bank, which he seized. He released all the household articles, gold ornaments and cash in the zima of the accused and on 10.01.1994 he searched the office room of the accused and also searched the I.B. room, which was under his occupation. He collected the pay particulars of the accused, the certified copies of his possessed lands, obtained the valuation reports of his assets from different authorities and on completion of investigation, he submitted charge sheet against the accused to the effect that the accused had disproportionate assets worth of Rs.8.51 lakhs in excess of his probable savings being Rs.3.39 lakhs (approximately).

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The opposite party examined three witnesses including himself as D.W.3 and he stated that the vigilance police did not make proper calculation and that their assessment is exorbitant and that if calculated properly, he would be having no disproportionate assets at all. He stated the details of the items of the property and the cost thereof, which he disputed with that

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of the vigilance findings. His brother in-law (D.W.1) stated that the accused had married to his sister in 1962 and in that marriage, sixty tolas of silver ornaments, twenty tolas of gold ornaments, cash of Rs.20,000/- and household articles worth of Rs.40,000/- were given to the accused and that the list containing those items were prepared by his maternal uncle vide Ext.A. Co-villager Gopal Krushna Panda (D.W.2) stated that the father of the accused was a renowned cultivator of their area and that his annual yield per acre was about five to six loads of paddy and that his father had owned and cultivated Ac.2.43 acres of land.

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The learned trial Court on detailed analysis of the evidence on record and law, pursuant to the impugned judgment, acquitted the opposite party of the charges under section 13(2) read with section 13(1)(2) of 1988 Act. While passing the order of acquittal, the learned trial Court took into account the evidence of the two brothers of the opposite party who were examined as P.W.7 and D.W.1 and accepted the defence plea that after the death of their father, a box containing cash of Rs.2,30,507/- was found which was deposited in the bank accounts of the wife of the opposite party on consent of all the brothers and accordingly, the learned trial Court deducted

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the amount of Rs.2.31 lakh from the assets of the opposite party. The learned trial Court taking into account the agricultural income of the opposite party from the landed properties as per the documents proved, came to hold that an amount of Rs.1.7 lakh has not been shown by the prosecution as his probable savings. So far as house rent is concerned, the learned trial Court added a sum of Rs.90,000/- to the savings of the accused. The learned trial Court added Rs.98,000/- to the probable savings of the opposite party towards the non-existent second floor of the building calculated by the Building Inspector (P.W.15) wrongly and the gift received. An amount of Rs.10,000/- which the opposite party received from his father-inlaw during marriage was deducted from the assets. Calculating the expenses from food, clothing and foot wear during the check period, the opposite party was given benefit of Rs.2.42 lakhs.

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Mr. Sangram Das, learned Standing Counsel for the Vigilance Department while challenging the impugned judgment contended that the learned trial Court has come to an erroneous finding that some of the properties came to the opposite party from his father and father-in-law and it is highly improbable that when the son of the opposite party was holding high official position, the opposite party would continue to be a cultivator or

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at least to be a Bhag Chasi. It is argued that the defence plea about recovery of huge cash from a box after the death of the father of the opposite party and that the brothers of the opposite party who were living separately agreed to keep such amount in the accounts of the wife of the opposite party is very difficult to be accepted and the said amount should not have been included in the income of the opposite party and therefore, the learned trial Court has committed illegality in acquitting the opposite party.

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Mr. Srinivas Mohanty, learned counsel for the opposite party on the other hand supported the impugned judgment and contended that the view taken by the learned trial Court cannot be said to be perverse and vigilance case was instituted in the year 1994 and the order of acquittal was passed in 2010 and the opposite party is now more than eighty years of age and therefore, no leave should be granted to the petitioner to prefer an appeal against the order of acquittal.

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Law is well settled as held in case of Babu -Vrs.-

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State of Uttar Pradesh reported in A.I.R. 1983 Supreme

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Court 308 that in appeal against acquittal, if two views are possible, the appellate Court should not interfere with the conclusions arrived at by the trial Court unless the conclusions

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are not possible. If the finding reached by the trial Judge cannot be said to be unreasonable, the appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The appellate Court, therefore, should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible on the evidence on the record, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by it.

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Thus, an order of acquittal should not be disturbed in appeal under section 378 of Cr.P.C. unless it is perverse or unreasonable. There must exist very strong and compelling reasons in order to interfere with the same.

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On going through the impugned judgment as well as prosecution evidence carefully and considering the contentions raised by the learned Standing Counsel for the Vigilance Department as well as by the learned counsel for the opposite party, I am of the considered opinion that it cannot be said that the conclusions arrived at by the learned trial Court are not

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possible or it is unreasonable. There is no perversity or illegality in the impugned judgment. The learned trial Judge has not ignored any material evidence on record and after assessing it minutely, he has reached at the conclusion and given benefit of doubt to the opposite party. Therefore, considering the scope of interference in a case of appeal against the order of acquittal, I am not inclined to grant leave to the petitioner to prefer an appeal.

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Accordingly, the CRLLP petition stands dismissed.

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………………………… S.K. Sahoo, J.

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Orissa High Court, Cuttack The 16^th August 2021 PKSahoo

State v. Pratap Ch.Suar

Case brief

What is this about?

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State v. Pratap Ch.Suar

Case brief

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