Lalita Devi Wife of Sri Dwarika Nath Rai Vs. State of Bihar Thru. Vig - Court Judgment

Sheema Ali Khan, J.

1. This application has been filed for quashing the order, dated 4.8.2008 passed by the Special Judge Vigilance I, Patna in Special Case No. 7/1995, arising out of Vigilance PS case No. 12/1995, whereby and whereunder the petition for discharge of the petitioner has been rejected.

2. The petitioner is the wife of Dwarika Nath Rai and has been made accused along with her husband in a case under Sections 420, 467, 468 and 471 of the Penal Code and Section 5 read with Sections 5(2), 5(1)(e) of the Prevention of Corruption Act, 1947.

3. The allegation is that Dwarika Nath Rai, Superintending Engineer during his period of service, the check period being between 5.9.1963 to the years 1989-90 has amassed wealth disproportionate to his assets which has resulted in Vigilance PS Case No. 12/1995. The court has refused to discharge the petitioner on the allegations contained in the FIR and the charge sheet.

4. The allegations are that Sri Rai has constructed (a) a double storied house in Kankarbagh which according to the prosecution version is worth Rs. 10 lacs in the name of his wife, (b) that Sri Rai has purchased a Fiat car in October, 1976 for Rs. 30,380/- in the name of his wife after taking a loan of Rs. 23,000/- from a bank, (c) Sri Rai has opened an account in the name of his wife in Bankipur Post Office after depositing Rs. 35,000/- in the year, 1989, (d) Sri Rai has also purchased a house in Rajbansi Nagar, New Punaichak which is worth about Rs. 3 lacs, (e) Sri Raihas also purchased through a sale deed, dated 14.1.1982 a piece of land for Rs. 42,000/- measuring 1 katha 12 dhurs and 12 dhurkies in the name of his wife, (f) Sri Rai has purchased a piece of land on 13.1.1982 measuring 1 katha 12 dhurs and 10 dhurkies on consideration of Rs. 41,000/-, (g) it is also alleged that Sri Rai has two wives, the petitioner being the second wife. A title suit was instituted by the son of the Ist wife for partition of a house which was later withdrawn. It is alleged that Sri Rai has wrongly described the petitioner as his sister. On the basis of the aforesaid allegations the petitioner has been sent up to face the trial under the sections mentioned aforesaid.

5. It is clear from the charge sheet that between the period 1963 to 1990 it has been alleged that Sri Rai by using his official position has amassed wealth worth Rs. 13,14,742/- and his wife has supported him in his activities.

6. Learned Counsel for the petitioner submits that on the basis of the aforesaid allegations that her husband had purchased lands and properties in the name of the petitioner, it cannot be said that she was responsible for committing forgery or using a forged document in any court of law.

7. This Court will first deal with the allegations under Section 471 of the Penal Code. As stated earlier the allegation is that the husband of the petitioner had filed a written statement in the court describing the petitioner as his cousin sister. It is apparent that no written statement was filed by the petitioner and, therefore, she cannot be held responsible for making statement in court which is false and incorrect. The partition suit in which the written statement was filed has been withdrawn and as such the allegations against the petitioner are baseless and she cannot be held to be guilty of offences under Section 471 of the Penal Code.

8. Turing now to the allegations under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, it would be foremost important to state the obvious fact that the petitioner is not a public servant. There is no allegation in the FIR that the petitioner was responsible for taking illegal gratification on behalf of her husband. The charged officer must obviously be a public servant to be held guilty of amassing disproportionate wealth or property.

9. It would be incumbent on the public servant to prove that he is in possession by himself or through any person on his behalf of pecuniary resources of property disproportionate to his known source of income, he is enjoying the satisfactorily account for the same. If he fails to do so, he will be guilty under the section aforesaid. As far as the petitioner is concerned, she has admittedly not amassed any property as there is a direct allegation that the husband of the petitioner has purchased the properties in the name of this petitioner.

10. The burden lies on the prosecution that the public servant possesses pecuniary resources of property disproportionate to his known source of income - the limited onus then shifts on the public servant to explain to the satisfaction of the court the disproportionality of the assets possessed by him. The aforesaid principle is based on a case in the case of K. Veeraswami v. Union of India : (1991) 3 S.C.C. 655. It has been alleged that Sri Rai has purchased the lands in the Benami name of his wife. At the most it can be said that Sri Rai would be liable to explain the source of income through which he has purchased the property in the name of his wife.

11. In this case cognizance has also been taken under Sections 420, 467 and 468 of the Penal Code. As far as the allegations of cheating and committing forgery is concerned, it is apparent from the F.I.R. itself that no case is made out under the aforesaid sections. To constitute an offence of cheating the ingredients required are (i) that there should be fraudulent or dishonest inducement of a person by deceiving him. In this case there is no such allegation against the petitioner that she had induced any person to part with any property or money, (ii) a person so deceived should be induced to deliver any property to any person, or to conclude that any person shall retain any property, or that the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived and in cases covered as aforesaid, the act of omission should be such that it is likely to cause damage or harm to the person so induced in body, mind, reputation or property. In the facts of this case obviously the petitioner was not responsible for inducing anyone whatsoever to take or part with the property or money for the purposes alleged. The F.I.R. in fact does not constitute any offence under Sections 467 and 468 of the Penal Code as far as it concerns the petitioner.

12. This Court finds that an order to constitute an offence either under Sections 420, 467 and 468 or for that matter under Sections 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947, there must be element of meeting of minds. The prosecution should also show that the petitioner was in some way responsible for committing the act which would come within the purview of the aforesaid sections. It is not alleged that the petitioner was directly involved in any such act and merely because her husband had purchased certain properties in her name, she has been made accused in this case.

13. Counsel for the Vigilance Department has argued that the petitioner vicariously liable under Section 109 of the Penal Code. Section 108 of the Penal Code defines abatement. According to this definition there should either be instigation or some conspiracy. To 'instigate' means to urge or incite which, in other words, means a positive act on the part of the instigator as unless thoughts are modified or put into action, there cannot be any instigation. It envisages a conspiracy to commit an offence. There is no prima facie evidence to show that the petitioner had instigated or entered into a criminal conspiracy with her husband to commit the offence which would amount to collect property or money disproportionate to the known source of income. Relying in the case of the Superintendent & Remembrancer, Legal Affairs, West Bengal v. Anil Kumar Bhunja reported in : AIR 1980 S.C. 52, the learned Counsel for the petitioner submits that the standard of proof to be applied before a person is found guilty of an offence is not the same and is not to be applied at the stage of framing of charges. It there is presumption or the Court form an opinion based on strong suspicion, as to the existence of the factual ingredients, constituting an offence, the Court may proceed in the matter and the Court would be justified in framing of the charges. I cannot defer with the principles laid down by the Supreme Court. However, in this case as discussed above, there are absolutely no materials before the Court which would lead this Court to presume that the petitioner was guilty of the offences alleged in this case.

14. For the reasons aforesaid I quash the order dated 4.8.2008 passed by the Special Judge, Vigilance, Patna in Case No. 12/95. In the result, this application is allowed.