Dischargr application in a disproportionate assets case

[Sankaranarayanan Sankaralingam]

While filing charge sheet in a disproportionate assets case, the I O has taken four bank account balances not as on the date of commencement of check period (1 4 97) but as on 28 4 98 ,29 4 98,27 6 98 and 1 8 2002 and further did not consider balances in another four bank accounts as on the commencement of check period even though they were existing but has considered the balances at the end of check period. By this patently wrong method of computation, the I O worked out the disproportionate assets at 3.65 crores.When discharge petition was filed on the ground that the initial onus was not discharged by I O, based on the recent decision of the full bench Apex court in the case of Vasanth Guhe,the same was rejected by cbi court even without referring to Supreme court decision relied on by us.Is there any chance I succeed on revision before high court.

[Dr. Ashok Dhamija]

The basic principle of considering deposits in bank accounts during the check period in a case of disproportionate assets [Section 13(1)(e) of the Prevention of Corruption Act, 1988] is this. Whatever accumulation of money / property has taken place during the check period is only required to be taken into consideration as the assets of the accused public servant. For this purpose, whatever balance in a bank account was available at the commencement of the check period is not to be included. The balance at the end of the check period is seen and it is added to the assets. If there was some balance in the same account on the date of commencement of the check period, then that is shown in the previous assets (prior to check period). The total of previous assets is then deducted from the total assets existing at the end of the check period. This would give the figure for the assets of the public servant acquired during the check period. In fact, if there is any interest accrued during the check period in a bank account, that is added to the income (as interest income). This would ensure that only the actual amount deposited (including that coming by transfer) by the public servant in a bank account during the check period is considered as a part of his assets, since the extent of disproportion is calculated by comparing the assets (plus expenditure) and income.

If computation in your case has been made in violation of this principle, then it is wrong. I cannot comment on the facts of your case and also whether you’ll get success in your case, in the absence of having seen the detailed documents and full facts of the case. Please consult some local lawyer having expertise in such type of cases.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[Sankaranarayanan Sankaralingam]

The I O was able to get bank account copies only for part of the check period as the banks had weeded out the old records and made available only from 98 or 2002 whereas the check period was from 1 4 97 and the I O adopted bank balance in 98 as on 1 4 97 and failed to obtain balances as on 1 4 97 in respect of some other accounts.In the absence of bank accounts for the entire check period, the computation of disproportionate assets by the I O is not correct as the assets at the beginning of check period itself is wrong.Thus the the initial onus on the prosecution was not discharged and the charge sheet has been filed with assumption and many ifs and buts.In such circumstances,the accused cannot be expected to offer anyvexplanation as per the supreme court decision in the case of Vasanth Guhe rendered in August 2017.Can you offer your comments in the light of the above supreme court ruling. The I O shuld have fixed the check period only for the period for which bank account details were available but he chose to fix the same from 1 4 97 but bank accounts are not available from 1 4 97. I feel that the I O committed a fatal mistake in fixing the check period. I would like to know your response.

[Dr. Ashok Dhamija]

The IO has to collect details of the correct check period. Otherwise, he could have used the revised check period for which details were available.

Though the primary burden is on the I.O., if you claim that a wrong case has been made out only due to the incomplete details of the bank balances (as you also mentioned in the original question also), then what stops you from providing those details of the bank balances from the commencement date of the check period? And, if you also do not have those details, then how do you claim that the disproportionate assets are only due to this defect?

In any case, as mentioned in my previous reply, I am not supposed to go into detailed facts of a case on such public forum since we can only provide general guidance on points of law. For detailed analysis of your facts and documents, please contact some local lawyer. We cannot examine detailed facts of a case on the forum.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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