CRLREV No. 381 of 2016. Case: Pratima Behera Vs State of Orissa. High Court of Orissa (India)

Order:

S.K. Sahoo, J.

1. This revision petition has been filed by the petitioner Smt. Pratima Behera to set aside the impugned order dated 05.03.2016 passed by the learned Special Judge (Vigilance), Balasore in T.R. Case No. 43 of 2013 in rejecting the application under section 239 of Cr.P.C. filed by the petitioner for discharge and framing charge under section 109 of the Indian Penal Code read with section 13(1)(e) punishable under section 13(2) of the Prevention of Corruption Act, 1988. The said case arises out of Balasore Vigilance P.S. Case No. 56 of 2009.

2. On 25.11.2009 on the First Information Report submitted by S.K. Samal, Inspector, Vigilance, Balasore Division, Balasore before the Superintendent of Police, Vigilance, Balasore Division, Balasore, the aforesaid Balasore Vigilance P.S. Case No. 56 of 2009 was registered under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 against Sri Anil Kumar Sethi, husband of the petitioner.

It is stated in the First Information Report that during course of inquiry, it was found that the husband of the petitioner who was serving as an Asst. Engineer, Rural Works Sub-Division, Kakatpur, Dist-Puri being a public servant was in possession of assets disproportionate to his known source of income to the tune of Rs. 40,54,561/- (rupees forty lakhs fifty four thousand five hundred sixty one only) which he could not explain for which he is liable under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988.

During course of investigation, it was found that Sri Anil Kumar Sethi entered into service as Stipendiary Engineer in the year 1993 in Orissa State Housing Board Corporation and worked there till March 1997. Then he joined as Stipendiary Engineer in R.D. Department in March 1997. He became regular Asst. Engineer from January 1999 and after working at different places, he worked as Asst. Engineer in R.W. Division-I, Cuttack. He got married to the petitioner in the year 1996 and the couple were blessed with one daughter and twin sons. The petitioner as well as her husband Sri Anil Kumar Sethi was filing income tax returns and copies of I.T. returns submitted by Sri Sethi were taken into consideration but the I.T. returns of the petitioner could not be found in the I.T. Department. The total income of the petitioner and her husband during the check period i.e. from 03.09.1993 to 26.08.2009 was found to be Rs. 25,81,494.00 paisa (rupees twenty five lakhs eighty one thousand four hundred ninety four only), the expenditure during the said period was found to be Rs. 15,62,353.77 paisa and the total value of the immovable assets and movable assets was found to be Rs. 50,15,998.00 paisa. Accordingly, the disproportionate assets was found to be Rs. 39,96,857.77 paisa which was calculated to be 155% of the total income. As sufficient prima facie evidence was found against the petitioner and her husband Sri Anil Kumar Sethi, on 31.07.2013 Sri Madhusudan Behera, Dy. S.P., Vigilance, Balasore Division, Balasore submitted charge sheet under sections 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 read with section 109 of the Indian Penal Code.

3. Mr. Manas Mohapatra, learned Senior Advocate appearing for the petitioner challenging the impugned order contended that the petitioner who is the wife of a public servant cannot be prosecuted for the charge of abetment of alleged acquisition of disproportionate assets by the public servant. It is further contended that though F.I.R. was lodged only against the husband of the petitioner but while submitting charge sheet, the Vigilance Police added the petitioner as an accused along with her husband on the ground that she abetted her husband in acquiring disproportionate assets. It is contended that the petitioner was an Income Tax Assessee since 2000-2001 and filing income tax returns regularly. In the year 2000, while she was staying in Talcher, she was doing dairy farming and also earning money by tuition. She had passed M.A. in Physiology from Utkal University, Vani Vihar and she completed data entry course and started data entry business since 2003-04. She had borrowed Rs. 2.5 lakhs from her father to purchase land at Bhubaneswar but during course of investigation, the Investigating Officer had not taken the independent source of income of the petitioner as well as income tax returns filed by her. It is further contended that the Investigating Officer has acted autocratically and his action is vitiated by bias and intentionally avoided disclosing the source of income of the petitioner from the income tax returns while filing charge sheet. The learned counsel for the petitioner filed the income tax documents which the petitioner stated to have obtained under R.T.I. Act from the Income Tax Authority. It is contended that if the income tax returns of the petitioner will be taken into consideration then there will be no case against the petitioner and there is no iota of evidence that the petitioner abetted her husband or made any conspiracy or instigated in the alleged acquisition of disproportionate assets by her husband. The learned counsel for the petitioner placed reliance in cases of State of Madhya Pradesh Vrs. Mohanlal Soni reported in AIR 2000 SC 2583, Dilawar Babu Kurane Vrs. State of Maharashtra reported in AIR 2002 SC 564, Central Bureau of Investigation, Hyderabad Vrs. K. Narayana Rao reported in 2013 (I) Orissa Law Reviews (SC) 74and A.R. Saravanan Vrs. State reported in 2003 Criminal Law Journal 1140.

Mr. Sangram Das, learned Standing Counsel for the Vigilance Department on the other hand contended that the petitioner failed to produce the copies of her income tax returns before the investigating agency during course of investigation and an attempt was made by the investigating agency to collect such copies of the returns stated to have been filed by her before the Income Tax Authorities, from the Commissioner of Income Tax, Odisha, Bhubaneswar. The Director, Vigilance vide letter No. 1737 dated 17.03.2010 requested the Commissioner of Income Tax, Odisha, Bhubaneswar to supply the copies of income tax returns filed by the petitioner as well as her husband namely Sri Anil Kumar Sethi. In response to such request put forth by the Vigilance Director, the Income Tax Authorities furnished the income tax return copies of Sri Anil Kumar Sethi, the husband of the petitioner but the copies of returns stated to have been filed by the petitioner could not be obtained. In a bid to obtain such copies of the returns filed by the petitioner, a fresh attempt was made particularly by the then Investigating Officer, Mr. Nirmal Chandra Mohanty who personally visited the Income Tax Office at Bhubaneswar to obtain the copies of the petitioner's income tax returns but the same could not be traced out. It is contended that the allegations of the petitioner regarding non-consideration of her income as reflected in her I.T. returns by the investigating...