KUMUDINI PADHY Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner Smt. Kumudini Padhy who is an octogenarian lady has filed this criminal miscellaneous application under section 482 of the Code of Criminal Procedure challenging the proceeding in G.R. Case No.12 of 2011(V)/T.R. No.15 of 2018 pending in the Court of learned Special Judge (Vigilance), Berhampur in which after taking cognizance of offence under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereafter '1988 Act') and section 109 of the Indian Penal Code, process has been issued against her. The said case arises out of Berhampur Vigilance P.S. Case No.12 of 2011.

(2.) On 15.03.2011 on the first information report lodged by Sri Rabikanta Suna, Inspector of Police, Vigilance, Paralakhemundi before the Superintendent of Police, Vigilance, Berhampur Division, Berhampur, the case was instituted wherein it is alleged that an enquiry was conducted on receipt of the reliable information relating to the accumulation of disproportionate assets by Sri Akhaya Kumar Padhy, J.E., Irrigation Section, Bhismagiri under Chikiti Irrigation Division, Berhampur. The said co-accused Sri Padhy happens to be the son of the petitioner. Enquiry revealed that Sri Padhy is the only son of Late Banamali Padhy of village Bendalia under Sadar police station, Berhampur in the district of Ganjam. He has only one sister namely Smt. Nilima Padhy who was already married and staying at village Ganj under Gopalpur police station in the district of Ganjam. His father late Banamali Padhy had Ac.09.00 dec. of land, out of which Ac.05.00 dec. was rainfed and the rest was non-rainfed. After completion of his education, Sri Padhy entered into Government service as a Junior Engineer on 23.07.1987 at Upper Kolab Irrigation Project, Kolab Nagar in the district of Koraput. He had worked at Padampur Block, Irrigation Project, Kendugada, Irrigation Project, Baghalati, Irrigation Division, Bhanjanagar, Irrigation Division, Bhawanipatna and at Irrigation Section, Bhismagiri under Chikiti Irrigation Division where he was continuing. He married to one Mamta Padhy, daughter of Duryodhan Padhy on 08.03.1988 and was blessed with three sons namely Darubrahma Padhy, Chinmaya Padhy and Adarsa Padhy. His elder son Darubrama Padhy had completed his Engineering studies in Electronics from Ronald Institute of Technology in the year 2010. His 2nd son Chinmaya Padhy was prosecuting 2nd year Civil Engineering studies at ITER College, Berhampur and his younger son namely Adarsa Padhy was reading +2 Science 2nd year at Nilakhanthanagar Sisu Bidyamandira, Berhampur. During house search and on subsequent enquiry, it was found that during his service period from 23.07.1987 to 16.12.2010, Sri Padhy had acquired total immovable assets to the tune of Rs.38,75,930.00 paisa and moveable assets to the tune of Rs.15,00,097.25 paisa and thus the total moveable and immovable assets came to Rs.53,76,027.25 paisa. His assets included gold ornaments, deposits in various Banks, LIC and valuable household articles. It was found on enquiry that during the check period, Sri Padhy had earned salary amounting to Rs.19,13,793.00. Against such income, he had incurred expenditure to the tune of Rs.14,91,661.00 and thus leaving a saving balance of Rs.4,22,132.00. Against such probable saving, Sri Padhy was in possession of assets worth of Rs.53,76,027.25 paisa. Therefore, the disproportionate assets was to the tune of Rs.49,53,895.25 paisa and the percentage of disproportionate assets to his known source of income was 258.85%. It is stated in the first information report that co- accused Sri Padhy being a public servant is liable for criminal misconduct for acquiring and possessing assets disproportionate to his known source of income which is an offence under section 13(2) read with section 13(1)(e) of the 1988 Act. Accordingly, on receipt of such first information report, Berhampur Vigilance P.S. Case No.12 of 2011 was registered under section 13(2) read with section 13(1)(e) of the 1988 Act against Sri Akhaya Kumar Padhy only.

(3.) During course of investigation, the entire service period of Sri Akhaya Kumar Padhy i.e. 23.07.1987 to 16.12.2010 was taken as check period considering accumulation of valuable movable and immovable assets. Sri Padhy had not submitted any property statement but it was ascertained that permission has been accorded under Rule 21(1) of Odisha Government Servant Conduct Rules, 1959 to purchase plot no.153, Khata no.850 of Mouza Alakapur of 1594 sq. ft. from one Smt. Tumula Nilima of Prem Nagar, 3rd Lane, Berhampur for Rs.2,55,950/- and selling of plot no.780/2938 in Mouza Old Berhampur of area Ac.0.053 dec. to Sri Repak Jagan Mohan of Prem Nagar, 5th Lane, Berhampur for Rs.10,58,000/-. Sri Padhy had filed income- tax returns basing on salary income and income from house and tower rents. During the assessment year 2007-08, he had shown income of Rs.20,114/- and for the assessment year 2008-09, he had shown the income of Rs.16,686/-. No income was shown in the year 2009-10. For the assessment year 2010-11, a sum of Rs.25,914/- was shown as income from house rent and Rs.81,429/- as tower rent. Thus a sum of Rs.1,44,413/- was shown as income from house and tower rent. No income tax return was filed by the wife of the co-accused Sri Padhy. Since no income was shown from agriculture, hence agricultural income was not taken into account by the investigating officer. So far as the income of Sri Padhy is concerned, it was found that during the check period, he had received a net salary and allowances of Rs.19,29,006/-, income from house and other sources i.e. from tower rents as shown in income tax return was Rs.1,44,143/-, income from housing loan availed from SBI, Bhapur Bazar Evening Branch, Berhampur Branch was Rs.6,00,000/-, income from LIC premium was Rs.9,700/-, income from GPF was Rs.4,07,000/-, income from pension of his mother (petitioner) received upto 16.12.2010 was Rs.4,35,065/-, income from selling of plot bearing No.780/2938 in Khata No.365/1362 of area Ac.0.053 under Puruna Berhampur Mouza to one Repaka Jagan Mohan was Rs.10,58,000/-, income from selling a plot of agricultural land under Mouza Haladia Padar, Berhampur to one Rama Krushna Samantaray was Rs.2,10,000/-, income from selling of another plot of agricultural land under Mouza Haladia Padar, Berhampur to one Ankima Bapiraju was Rs.1,66,060/-, income from selling another plot of agricultural land under Mouza Haladia Padar, Berhampur to one Smt. Moninge Krishna Kumari Subudhi was Rs.28,240/-, income from selling another plot of agricultural land under Mouza Haladia Padar, Berhampur to one Sri T. Mohan Rao was Rs.28,240/- and thus the total income of Sri Padhy came to Rs.50,15,454/-. So far as the expenditure of Sri Padhy is concerned, it was found that during the check period, the total expenditure was to the tune of Rs.24,26,283/-. During the check period, it was found that Sri Padhy had acquired immovable assets to the tune of Rs.28,11,548/- and moveable assets to the tune of Rs.16,60,421/-. Thus the total moveable and immovable assets was found to be of Rs.44,71,969/-. After calculating the income, expenditure, probable saving, assets at the beginning of check period and assets at the end of check period, the investigating officer found that the disproportionate assets was to the tune of Rs.18,60,671/-. Sri Padhy could not explain satisfactorily about the disproportionate assets and his wife Smt. Mamita Padhy and mother (petitioner) alleged to have acquired assets on behalf of Sri Padhy by abetting him in the accumulation of disproportionate assets. Accordingly, the investigating officer on completion of investigation held that there are prima facie evidence to show that Sri Padhy and his wife Smt. Mamita Padhy and mother (petitioner) acquired and possessed disproportionate assets to the tune of Rs.18,60,671/- during the service period from 23.07.1987 to 16.12.2010. After obtaining the sanction order of prosecution against Sri Padhy under section 19(1)(b) of the 1988 Act, charge sheet was submitted on 22.11.2017 under section 13(2) read with section 13(1)(e) of 1988 Act and section 109 of the Indian Penal Code against Sri Akhaya Kumar Padhy, his wife Smt. Mamita Padhy and mother (petitioner), on receipt of which the impugned order dated 23.05.2018 was passed.