Bangalore District Court
Karnataka Lokayuktha Bengaluru vs Srinivasmurthy S on 23 January, 2026
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Spl.C.C. No. 428/2017
KABC010210072017
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE & THE SPECIAL JUDGE FOR
TRYING OFFENCES UNDER THE PREVENTION OF
CORRUPTION ACT, AT BENGALURU CITY (CCH-78)
DATED THIS THE 23RD DAY OF JANUARY, 2026
PRESENT:
Sri.PRAKASH NAYAK, B.A.(LAW), LL.B.
LXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE & LOKAYUKTHA SPECIAL JUDGE,
BENGALURU CITY.
SPL. C.C.No. 428/2017
COMPLAINANT: State by Karnataka
Lokayukta Police.
City Division, Bengaluru.
(Rep. by Mrs.Suneetha,
Public Prosecutor)
/VS/
ACCUSED: Sri.S.Srinivasamurthy,
S/o Subramanyasastri,
No.22/1, 5th 'B' Cross,
Sarakki Main Road,
J.P.Nagar, Bangaluru.
(Rep by Sri.L.N.Miskin, Advocate )
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Spl.C.C. No. 428/2017
*****
TABULATION OF EVENTS
01. Date of commission of offence : 28-05-2014
02. Date of report of offences to
the Police Station (FIR date) : 28-05-2014
03. Date of arrest of accused : -
04. Date of release of accused
from JC : -
05. Name of the complainant : Lokayukta
Police.
06. Nature of offence complained : U/Sec.13(1)
(e) R/w Sec. 13
13(2) of Prevention
of Corruption Act
1988.
07. Date of submission of
charge sheet : 12-08-2017
08. Date of commencement of
recording of evidence : 18-01-2021
09. Date of closing of evidence : 06-08-2025
10. Date of judgment : 23-01-2026
11. Opinion of the Judge : Accused is
Convicted
*****
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Spl.C.C. No. 428/2017
JUDGMENT
1. The concerned Police Inspector, Karnataka Lokayukta, City Division, Bengaluru i.e. CW.102 Sri.T.V.Manjunath has filed the charge sheet against the accused for the offences punishable under Secs. 13(1)(e)r/w Sec.13(2) of the Prevention of Corruption Act, 1988.
2. The factual matrix of the case on hand is that, the accused was appointed as Stenographer on 26-10-1978 and he was retired as Joint Commissioner of Excise on 30-11-2017. The accused worked at various places in different capacities and while he was working as Deputy Commissioner of Excise at Kalaburagi P.W.2 Sri.S.B.Venkataswamy filed Ex.P-2 Source Report dated 30-04-2014 to the Superintendent of Police, Lokayuktha alleging that as per the information received by him the accused has amassed the wealth disproportionate to his known Source of Income. 4
Spl.C.C. No. 428/2017
3. In Ex.P-2 Source Report dated 30-04-2014 submitted by PW-2 S.D.Venkataswamy the assets, expenditure and income of the accused and his family members during the check period i.e. from 26-10-1978 till 29-05-2014 is mentioned as below:
ASSETS - 2,07, 80,000-00
Expenditure - 28,00,000-00
A+E - 2,35,80,000-00
Income - 80,00,000-00
Disproportionate 1,55,80,000-00
Assets -
Percentage - 194.7%
4. The available materials on record reveals that on the basis of Ex.P-2 Source Report the concerned Superintendent of Police, Lokayukta, Bengaluru City has authorised PW-15 H.B.Puttaswamy, the Police Inspector, Karnataka Lokayukta City Special Branch to register the case against the accused, and accordingly on 28-05-2014 he registered the case against the accused in Crime No.24/2014 for the offences punishable under Secs.13(1)(e)r/w Sec.13(2) of the Prevention of Corruption Act, and 5 Spl.C.C. No. 428/2017 submitted FIR to the Court.
5. After registration of the case said PW-15 H.B.Puttaswamy has conducted search in the houses and office of the accused and seized documents. Apart from this, it is also the case of the prosecution that PW-15 has secured search warrant from the Court and conducted raid to the houses of the accused and office and other places related to the accused on 29-05-2014. The materials on record further reveals that subsequently PW-1 T.V.Manjunath further conducted the investigation and prepared final report and submitted charge sheet against the accused for the offences punishable under Sec.13 (1) (e) r/w Sec.13(2) of the Prevention of Corruption Act, 1988.
6. As per the final report, the assets, expenditure and income of the accused and his family members during the above mentioned check period is as mentioned below.
ASSETS - 2,54, 11, 308 -21
Expenditure - 1,21, 38, 145 -16
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Spl.C.C. No. 428/2017
A+E - 3,75,49, 453-37
Income - 2,53,49,142-43
Disproportionate 1,22,00,310-94
Assets
Percentage - 48.13%
7. After taking cognizance of the offences this Court has issued summons to the accused, who put his appearance before the court through his counsel and subsequently, the accused was enlarged on bail. Thereafter, as contemplated under Sec.207 of Cr.P.C. copy of charge sheet and its enclosures were furnished to the accused.
8. After hearing both sides and considering the fact that there exist prima-facie case and sufficient grounds to proceed against the accused, the Court has framed charge under Sec.13(1)(e) r/w Sec.13(2) of The Prevention of Corruption Act, 1988, which was read over to the accused, who pleaded not guilty and claims to be tried.
9. In order to prove its case, the prosecution has examined PWs.1 to 17 and got exhibited Ex.P.1 to Ex.P.118. In view of filing of application under 7 Spl.C.C. No. 428/2017 Section 294 of Cr.P.C. by the accused and since the said application was allowed, the prosecution has given up CW.8, CW.9, CW.11, 12, 14, 16 to 21, 23 to 53, CW.55 to CW.90, CW.92 to 97.
10. The prosecution evidence in gist is described as under:
Prosecution Charge witness No. Sheet Person examined Evidence Exhibits witness regarding marked No. PW.1 CW.102 Sri.T.V.Manjunath Evidence Ex.P.1, regarding P1(a), conducting Ex.P23 to further P93 investigation and preparation of final report and submission of charge sheet PW.2 CW. 1 Sri.S.D.Venkataswamy Preparation Ex.P.2 of Ex.P.2 and P2(a) Source Report PW.3 CW.2 Sri.S.Ramakrishna Witness to Ex.P.94, search and Ex.P94 signatory to (a) and Ex.P.94 (b), search Ex.P.92 warrant and to 97, Ex.P.95 to P.98, P.97 98(a) (b), documents Ex.P20 and witness (a)P.20 (b) to Ex.P.20 and Ex.P.98 mahazar PW.4 CW.3 Sri.Ravikumar,D.P. Witness to Ex.P.98, search and Ex.P.94 8 Spl.C.C. No. 428/2017 signatory to (c), search Ex.P20 warrant (c), Ex.P.94 and Ex.P.98 witness to (c) mahazar Ex.P.20 PW.5 CW.4 Miss. B.R.Saritha Witness to Ex.P99, search and Ex.P99 signatory to (a) Ex.P99 Ex.P.100, search Ex.P21, warrant and P.21(a) witness to seizure of Ex.P.100 document and witness to Ex.P.21 panchanama PW.6 CW.7 Smt.Kalavathi Witness to Ex.P.101, search and P.102 , signatory to Ex.P22 search (a) warrant Ex.P.103, Ex.P.103 and Ex.P.103 seizure of (a),P.104, document as 104(a) per Ex.P-101 and 102 and witness to mahazar Ex.P.104 PW.7 CW.13 Krishna Nayaka Witness as to Ex.P.5 (a) valuation of immovable property of the accused and submitting report as per Ex.P.5 PW.8 CW.10 Sri.Venkatesh.G. According Ex.P.105, prosecution P.105(a), Sanction as P.106, per Ex.P.105 P.106(a), & 106 P.107 PW.9 CW.15 Sri.M.Kumaraswamy Witness as to Ex.P-7 valuation of immovable 9 Spl.C.C. No. 428/2017 property and submitting report as per Ex.P.7 PW.10 CW.22 Sri.K.P.Gangadhar Furnishing Ex.P.17 Acharya the to P.19 information and documents in respect of three vehicles mentioned in the requisition PW.11 CW.91 Sri.K.N.Kantharaju Submission Ex.P.88 of Ex.P.88 (a) report regarding food and domestic expenses of AGO and his family members PW.12 CW.99 Sri.K.P.Vishnuvardhan Conducting Ex.P.103, Pandith further P.103 (b) investigation (c) (d), and Ex.P.108 conducting autorisati search as on letter, per Ex.P.103 Ex.P22 search (b) P.22 warrant and (c) (p) witness to P.104(b) mahazar to (d) Ex.P.22 and P.104 PW.13 CW.98 Dr.Anil Kumar P.G. Conducting Ex.P.99 search as (b) (c), per Ex.P.99 Ex.P.109, search Ex.P21 warrant and (b) and witness to ( c) seizure of document as per Ex.P.109 and witness to Ex.P.21 panchanama PW.14 CW.101 Sri.G.Siddaraju In respect of Ex.P.110 10 Spl.C.C. No. 428/2017 conducting and further P.111 investigation PW.15 CW.100 Sri.Puttaswamy H.P. Registration Ex.P2(b), of F.I.R. as Ex.P.112, per Ex.P.102 P.112(a) and P.113, conducting 113(a), further P.114, investigation P.114(a), P.115, P.115 (a) P.94 (d) Ex.P.20
(d), Ex.P98
(d) P.W.16 - Sri.Kumar Witness as to -
conducting of panchanama at the house of accused at Vappasandra PW.17 - Sri.Prashanth, H.S. Witness regarding estimation of the value of the seized gold, diamond, silver articles.
11. After closure of the prosecution evidence, the statement of accused under Sec.313 of Cr.P.C. was recorded. The accused has denied the incriminating evidence as appears against him and he has chosen to adduce defence evidence and the accused himself examined as DW.1 and through him Ex.D.1 to D.11 were got exhibited. Further the A.G.O. has also 11 Spl.C.C. No. 428/2017 examined 2 witnesses as DW.2 and DW.3, through them no documents were exhibited.
12. The defence evidence in gist is described as under:
Sl. Witness Name Documents exhibited No.
1. Sri.S.Srinivasamurthy, the Ex.D1 to D.11 accused examined as DW.1
2. Smt.Pooja.S. examined as Nil DW.2
3. Sri.Sandeep.S. Nil examined as DW.3
13. Heard both sides. Learned counsel for accused has also filed written arguments.
14. After analyzing the available oral and documentary evidence on record and after hearing the arguments on both sides, the points that would arise for determination are:
1. Whether the prosecution has secured the valid sanction to prosecute the accused for the offence punishable under Sec. 13(1)(e) r/w Sec.13(2) of P.C.Act, 1988, as contemplated under Sec.19 of the P.C. Act, 1988?
2. Whether the prosecution beyond reasonable doubt proves that the accused being the public servant during the check period from 12 Spl.C.C. No. 428/2017 26-10-1978 to 29-05-2014 was found in possession of property worth Rs.1,22,00,310.94 (48.13%) disproportionate to his known source of income, for which he could not satisfactorily account and thereby, he has committed an offence defined under Sec.13(1)(e) punishable under Sec.13(2) of P.C.Act, 1988?
3. If so, What order?
15. My answers to above points are as under:
POINT NO.1:- In the AFFIRMATIVE POINT No.2:- In the AFFIRMATIVE POINT NO.3:- As per the final order for the following:
REASONS
16. POINT NO.1:- It is an admitted fact that the accused in this case was appointed as Stenographer on 26-10-1978 and he worked at different places and got periodical promotion and worked at various places in various capacities and on 29-05-2014, when the Karnataka Lokayukta Police raided his houses and office he was working as Deputy Commissioner of Excise at Kalaburagi. Admittedly, the accused joined to service on 26-10-1978 and the 13 Spl.C.C. No. 428/2017 raid was conducted on 29-05-2014 and the accused was retired on 30-11-2017. These undisputed facts clearly reveals that the accused was the public servant as defined under Sec.2(c) of P.C.Act, 1988.
17. In this case the accused has seriously challenged the validity of Ex.P.105 Sanction Order issued by the competent authority. Before considering the facts and related evidence on record pertaining to the validity of the sanction order which was issued to prosecute the accused in this case, this Court opines that it is just and proper to refer the decision of Hon'ble Apex Court reported in (2013) 8 SCC 119 (State of Maharashtra through CBI Vs. Mahesh G.Jain) in this regard. In the said decision, the Hon'ble Apex Court held that "the adequacy of the material placed before the sanctioning authority cannot be gone into by the Court as it does not sit in appeal over the sanction order. An order of sanction should not be construed in a pedantic manner and there 14 Spl.C.C. No. 428/2017 should not be a hyper technical approach to test its validity. When there is an order of sanction by the competent authority indicating the application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of the accused".
18. Admittedly, it is for the prosecution to establish that it has obtained a valid sanction as contemplated under Sec.19 of the P.C.Act, 1988, so as to prosecute the accused for the alleged offence. The prosecution can prove the same by producing the original sanction order, which contains facts constituting the offence and grounds of satisfaction and also by adducing the evidence of the author of the Sanction Order. A valid sanction is a prerequisite to taking of cognizance of enumerated offences alleged to have been committed by a public servant.
19. In the light of the above said settled principles of law, now this Court has to examine the evidence 15 Spl.C.C. No. 428/2017 adduced by the prosecution in respect of the aspect of validity of sanction order. The materials on record reveals that in order to prove the factum of valid sanction, in this case the prosecution has relied upon the evidence of PW.8 Sri.Venkatesh.G. and Ex.P.105 Sanction Order dated 12-06-2017.
20. Said PW.8 Sri.Venkatesh.G. in his examination-in-chief has deposed that on behalf of the Government he has issued Ex.P.105 Sanction Order to prosecute the accused in this case. He has further deposed that in the letter dated 22-11-2016 the ADGP Karnataka Lokayukta wrote a requisition to the Government to accord Sanction to prosecute the accused in the present case and he received the file on 5-1-2017 and verified the same and directed the office to collect and put up the APR's of the AGO for further course of action and again on 21-05-2017, he received the said file with the APR's of the accused. PW.8 has further deposed that the ADGP Karnataka Lokayukta along with his 16 Spl.C.C. No. 428/2017 requisition submitted 9 schedules which were submitted by the AGO and APR's, FIR and Source Report and after verifying these documents he submitted his report to the Deputy Secretary, Administration Excise Department.
21. PW.8 has further deposed that as per the procedure before issuance of Ex.P.105 the file was placed before concerned Deputy Secretary and then before Secretary to the Government of Karnataka, Finance Department, then it was placed before Additional Chief Secretary, Finance Department and then it was placed before the Hon'ble Chief Minister, Government of Karnataka and after getting approval from the Hon'ble Chief Minister and after obtaining Office Note the file was moved back to him as per the procedure.
22. PW.8 has further deposed he has verified the document Sanction Order on 9-6-2017 and he resent the file to the Deputy Secretary, Finance Department for approval of the Government and he 17 Spl.C.C. No. 428/2017 has signed sanction order on the same day and sanction was accorded by the Government to initiate proceeding against AGO by the Karnataka Lokayukta under Section 13 (1) (e) r/w Section 13 (2) of P.C.Act, he further deposed that he was authorized to sign sanction order as per Section 19 (1) Karnataka Government (transaction of business) Rules 1977 and on behalf of Hon'ble Governor of Karnataka he has signed the Sanction Order as per Ex.P.105 and it consist his signature at Ex.P105 (a).
23. PW.8 has further deposed that since there was some correction in Ex.P.105 it was later amended and thereafter as per Ex.P.106 document was issued which consist his signature as per Ex.P.106 (a).
24. PW.8 was further examined-in-chief and he has further deposed that since AGO is the group 'A' Gazetted Officer his appointment and removal authority is Hon'ble Chief Minister, Government of Karnataka.
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25. In the cross-examination of PW.8 nothing contrary to the case of prosecution regarding the validity of the sanction is elicited. He has admitted that as per Rule 23 of the Karnataka Government ( Transaction of Business) Rules 1977 the matter pertaining to accord Sanction in respect of Group 'A' and 'B' Gazetted Officers shall brought before cabinet. He further admitted that as per Rule 12 of above Rule there shall be committee of counsels of Minister which shall consist of cabinet Ministers and as per Rules there shall be 5 councils of Ministers in the cabinet. He has also admitted that as per Rules the ADGP shall enclose all the annexures with his requisition and all such documents shall be placed before the cabinet. He has admitted that he has no independent power to accord Sanction separately. PW.8 in his cross-examination has denied that only to prosecute AGO, the assets and expenditure of AGO and his family members are badly inflated and income of the AGO and his family members have deflated. He denied that he has put his signature to 19 Spl.C.C. No. 428/2017 Ex.P105 Sanction Order mechanically and he denied that he is deposing falsehood before the Court.
26. Relying upon aforesaid evidence on record, the Learned Public Prosecutor has submitted that the oral and documentary evidence available on record clearly discloses that the competent authority has accorded sanction after scrutinizing the materials placed before it and hence, the sanction accorded is valid and in accordance with law.
27. On the other-hand the learned counsel for the accused has submitted that Ex.P.105 the Sanction order is invalid for the reason that the Rules of the Karnataka Government ( Transaction of Business) Rules 1977 is not followed while issuing the said Sanction order. In this regard the Learned Counsel for accused has relied upon Rule 5 of the Karnataka Government ( Transaction of Business) Rules 1977 and submitted that the Government is the appointing as well as removing authority of the accused since the accused in this case was a Group 20 Spl.C.C. No. 428/2017 'A' employee. The Learned Counsel for the accused has further submitted that the Rule 12 of the above said Karnataka Government (Transaction of Business) Rules 1977 contemplates that all the materials seeking sanction to prosecute a public servant has to be placed before the cabinet and only after the cabinet grants approval then only the officers of the concerned department who are the authenticating officers bound to implicate the said order.
28. Further the Learned counsel for accused has relied upon Rule 19 of above said Karnataka Government ( Transaction of Business) Rules 1977 and submitted that only after approval from the cabinet and the competent authority the orders shall be made and executed in the name of the Governor of Karnataka. The learned counsel for accused has further relied upon the cross-examination made to PW.8 Sri.Venkatesh.G. in this regard wherein said P.W.8 has admitted that as per Ex.P.107 the file was not placed before the cabinet and it is the 21 Spl.C.C. No. 428/2017 submission of Learned counsel for accused that the process of passing of Ex.P.105 the Sanction Order reveals that the Karnataka Government ( Transaction of Business) Rules 1977 is not duly followed and hence the sanction is invalid. In support of his said submission the Learned counsel for accused has relied upon the following citations.
1. (2014) 14 SCC 295 [Central Bureau of Investigation Vs Ashok Kumar Aggarwal] The learned counsel for accused has relied upon para No.16 of the said decision wherein the Hon'ble Apex Court has stated about the essentials of valid prosecution, which are,-
(i) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the 22 Spl.C.C. No. 428/2017 competent authority may refuse sanction;
(ii) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction;
(iii) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(iv) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material;
(v) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the 23 Spl.C.C. No. 428/2017 authority had applied its mind on the same and that the sanction had been granted in accordance with law.
2. (1979) 4 SCC 172 [Mohd. Iqubal Ahmed Vs State of Andhra Pradesh] In this decision at para No.4 the Hon'ble Apex Court in detail discussed about the aspect of presumption and sanction. The Hon'ble Apex Court observed that there is no question of the presumption being available to the sanctioning authority because at that stage the occasion for drawing a presumption never arises since there is no case in the Court. It is further held that the presumption does not arise automatically but only on proof of certain circumstances. It is also observed that so far as the question of sanction is concerned this arises before the proceedings come to the court and the question of drawing presumption, therefore does not arise at this stage.
3. (2007) 11 SCC 273 [State of Karnataka Vs Ameerjan] 24 Spl.C.C. No. 428/2017 In this decision at para No.9, 10, 19 and 20 the Hon'ble Apex Court held that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the PC Act by refusing to accord sanction for prosecution or not. For the aforementioned purpose, application of mind on the part of the sanctioning authority is imperative.
4. (2017) 14 SCC 442 [Vasant Rao Guhe Vs State of Madhya Pradesh] In this decision the Hon'ble Apex court in detail discussed about the aspect of burden of proof when a case is registered alleging commission of offence under Section 13 (1) (e) r/w Sec. 13 (2) of PC Act, 1988. The Hon'ble Apex Court has held that the primary burden to bring home the charge of criminal misconduct would be in indubitably on prosecution 25 Spl.C.C. No. 428/2017 to establish beyond reasonable doubt that public servant either himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known source of income and it is only on discharge of such burden by prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence.
5. Criminal Appeal No.2573/2013 [K.Chandrashekara Reddy Vs State of Karnataka] In this decision the Hon'ble High Court of Karnataka, Dharwad Bench discussed the scope of Rule 12 and Rule 19 of the Karnataka Government (Transaction of Business) Rule 1977 and considering the facts of the said case before it held that sanction order passed by the Desk Officer is invalid and the judgment of the trial court was set aside.
29. Relying upon the aforesaid judgments the learned counsel for accused has submitted that even in this case Ex.P.105 Sanction order was not passed 26 Spl.C.C. No. 428/2017 as per Rules of the Karnataka Government ( Transaction of Business) Rule 1977 and hence the Sanction order relied upon by the prosecution is invalid and therefore sought for closure of the case and acquittal of the accused.
30. On the other-hand the learned Public Prosecutor has submitted that there is no infirmity in the said Sanction order produced as per Ex.P.105 and the Sanction order is valid and submitted that there is no technical defect in issuing the Sanction order. Further the learned public prosecutor has relied upon the decision of Hon'ble Apex court reported in (2005)4 SCC 81 (C.S.Krishnamurthy vs State of Karnataka), wherein it is held that when the sanction order itself is eloquent enough, then in such case only formal evidence has to be produced that the sanction was accorded by a competent person with due application of mind.
31. On careful perusal of the evidence of PW.8 27 Spl.C.C. No. 428/2017 Sri.Venkatesh.G. the Deputy Secretary to Government of Karnataka, it reveals that in his cross-examination he has admitted that as per Rule 12 of Karnataka Government (Transaction of Business) Rule 1977 the present file was not placed before the concerned Cabinet. It is also elicited through PW.8 that Ex.P.107 the Notes of Proceedings reveals that the Hon'ble Chief Minister has signed the file as approved. On perusal of Ex.P.107 the Notes of the Proceedings and the evidence of PW.8, it clearly reveals that the file was admittedly not placed before the Cabinet. However, it is relevant to note that the Hon'ble Chief Minister has signed the file as approved. Apart from this it is relevant to note that the learned counsel for the accused has put a suggestion to PW.8 that the Cabinet implies the Chief Minister and his council of Ministers and it is also suggested to PW.8 that except the Hon'ble Chief Minister nobody has any authority or power to accord sanction for prosecution. In this case, there is approval of Hon'ble Chief Minister, who is the 28 Spl.C.C. No. 428/2017 Head of Cabinet and hence Ex.P.105 and Ex.P.107 and the evidence on record clearly reveals that Ex.P.105 Sanction order was issued as per procedure.
32. It is relevant to note that the accused has taken these contentions in his discharge application filed before this Court on 16-11-2018 and my learned predecessor in office has rejected the said discharge application by the order dated 18-2-2020. The materials on record reveals that all the similar contentions as raised by the accused now regarding validity of the said Sanction order was negativated by this Court itself by the order dated 18-2-2020 and it appears that the accused has not challenged the order passed by this Court. Apart from this, as mentioned above it is settled law that while considering the validity of an order of sanction it should not be construed in a pedantic manner and there should not be hyper-technical approach to test its validity. Further it is settled principle of law that 29 Spl.C.C. No. 428/2017 when there is an order of sanction by the authority indicating the application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of the accused. Further it is also settled law that any irregularities in obtaining the sanction to prosecute public servant under the provision of PC Act does not justify an acquittal unless it cause prejudice to the accused. Hence taking into consideration these settled principles of law and the facts and the evidence on record the Court is of the opinion that the contentions of the learned counsel for accused that there is no application of mind by the competent authority while issuing the Ex.P.105 Sanction order is not a tenable contention. On the other hand as rightly pointed out by the learned Public Prosecutor, the Government of Karnataka is the competent authority to issue sanction order and as per the procedure laid down under the provisions of Karnataka Government (Transaction of Business) Rule 1977, the Ex.P.105 Sanction order was issued 30 Spl.C.C. No. 428/2017 by the competent authority and the concerned Under Secretary has made and executed the said order in the name of Governor of Karnataka and it is valid.
33. It is an admitted fact that the Public Servant is entitled to question the validity of the sanction at any stage of the proceedings even at the appeal stage, though the cognizance was taken by the Court earlier on the basis of the said sanction. However, in this case, the accused has evasively challenged the validity of the Sanction order without substantiating the same. Hence, the said contention of the accused that Ex.P.105 Sanction Order was accorded without considering the documents cannot be accepted.
34. Apart from this, the Hon'ble Apex Court in the decision reported in (2012) 3 SCC 64 Subramanian Swamy vs. Manmohan Singh at para No.44 held that " A Grant or refusal of the sanction is not quasi judicial function. What is required to be seen by the competent authority is whether the facts placed 31 Spl.C.C. No. 428/2017 before it by investigating agency prima-facie disclose commission of offence by a public servant. If the competent authority is satisfied that the materials placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of competent authority is otherwise, then it can refuse sanction. The competent authority cannot undertake a detailed enquiry to decide whether or not the allegations made against the public servant are true".
35. Further the Hon'ble Apex Court in the decision reported in (2007) 11 SCC 273 State of Karnataka vs Ameer Jan held that " Sanction order must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority".
36. In a recent unreported Judgment Hon'ble Apex Court in Criminal Appeal No.4964/2024 @ SLP (Criminal) No.16978/2024 @ D.No.9288/2018 dated 03-12-2024 between CBI vs. Jagatram, has 32 Spl.C.C. No. 428/2017 observed that any irregularity in obtaining the sanction to prosecute public servant under Prevention of Corruption Act, 1988 does not justify an acquittal unless it cause prejudice to the accused.
37. Admittedly it is for the prosecution to establish that it has obtained a valid sanction as contemplated under Section 19 of Prevention of Corruption Act, 1988, so as to prosecute the accused for the alleged offence. The prosecution can prove the same by producing original sanction order, which contains facts constituting the offence and grounds of satisfaction and also by adducing the evidence of author of the sanction order. A valid sanction is a prerequisite to taking of cognizance of enumerated offences alleged to have been committed by public servant.
38. It is an admitted fact that the public servant is entitled to question the validity of the sanction at any stage of the proceedings even at the appeal 33 Spl.C.C. No. 428/2017 stage, though the cognizance was taken by the Court earlier on the basis of the said sanction. However, in this case the accused has evasively challenged the validity of the sanction order without substantiating the same, hence all the said contentions of the accused that Ex.P105 Sanction Order was accorded without considering the documents is not tenable contentions and said contentions cannot be accepted. Therefore, taking into consideration all these aspects this Court holds that the prosecution has proved that it has secured the valid sanction order as per Ex.P.105 to prosecute the accused hence, with these observations and above discussions the Court proceed to answer POINT No.1 IN THE AFFIRMATIVE.
39. POINT NO.2:- As already stated above, in this case the prosecution has alleged that the accused has committed offence punishable under Sec.13(1)(e) r/w Sec.13(2) of P.C.Act, 1988, for having amassed disproportionate assets to his known source of income. Before considering the 34 Spl.C.C. No. 428/2017 merits of the case, the Court is of the opinion that it is appropriate to refer the provisions of Sec.13(1)(e) of The P.C.Act, which reads as under:
Sec.13(1):- A public servant is said to commit the offence of criminal misconduct-
(a)......
(b)......
(c)......
(d)......
(e) If he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account for pecuniary resources or property disproportionate to his known source of income.
EXPLANATION:
For the purposes of this Section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders, for the time being applicable to a public servant (prior to 2018 Amendment).
40. The above said provision clearly reveals that the prosecution must prove the following facts in 35 Spl.C.C. No. 428/2017 order to bring the case under Sec.13(1)(e) of the P.C. Act, 1988:
(i) The accused is a public servant.
(ii) Nature and extent of the pecuniary resources or property which were found in his possession,
(iii) What were his known source of income, which is known to the prosecution,
(iv) Such resources or property found in the possession of the accused, were disproportionate to his known source of income.
If these ingredients are established, the offence of criminal misconduct under Sec.13(1)(e) is complete, unless the accused is able to account for such resources or property. If these elements are established by the prosecution, then, onus shifts on the accused to satisfactorily account for his possession of disproportionate asset. No doubt, the extent and nature of burden of proof on the accused is preponderance of probability. It is well settled 36 Spl.C.C. No. 428/2017 principle of law that onus to establish a particular fact on the accused is not as heavy as on the prosecution to prove the guilt of the accused, it suffice for the accused to offer an explanation in his defence, which is reasonable and probable. Therefore, the initial burden is on the prosecution to establish the ingredients of the offence of the criminal misconduct of the accused beyond reasonable doubt.
41. Before taking into consideration the respective contentions of the prosecution and the accused and the facts revolving around this point No.2, the Court opines that it is appropriate and necessary to state in brief about some undisputed facts of the case, which is evident from the materials placed before the Court.
42. It is an admitted fact that the accused in this case is initially appointed as Stenographer on 26-10-1978 and as on the date of conducting raid i.e. on 29-05-2014 he was working as Deputy 37 Spl.C.C. No. 428/2017 Commissioner of Excise at Kalaburagi. Further it is an undisputed that he was retired on 30-11-2017 as Joint Commissioner of Excise. Further the Investigating Officer has considered the check period as 26-11-1978 to 29-05-2014. As already mentioned above PW-2 Sri.S.D.Venkataswamy who has submitted Ex.P.2 Source Report stated that the the assets, expenditure and income of the accused and his family members during the check period is as follows.
ASSETS - 2,07,80,000-00
Expenditure - 28,00,000-00
A+E - 2,35,80,000-00
DA - 1,55,80,000-00
Percentage - 194.7%
As mentioned above PW.1 Sri.T.V.Manjunath who submitted his final report has stated the assets, expenditure and income of the AGO and his family members during the check period is as follows.
ASSETS - 2,54,11,308.25
Expenditure - 1,21,38,145.16
A+E - 3,75,49,453.37
Income - 2,53,49,142.43
DA - 1,22,00,310.94
Percentage - 48.13%
38
Spl.C.C. No. 428/2017
WITH REGARD TO COMPLIANCE OF SEC.17 OF THE P.C.ACT, 1988
43. Sec.17 of P.C.Act, 1988 envisages about the persons authorized to investigate. The proviso appended to Sec.17 of The P.C.Act, 1988 contemplates that an offence referred to in Clause(e) of Sub-Section 1 of Sec.13 shall not be investigated without the order of a Police Officer not below the rank of a Superintendent of Police. Therefore, there is a statutory requirement regarding authorization by the Superintendent of Police in favour of an Officer to enable him to carry out the investigation in terms of Sec.17 of the P.C.Act, 1988.
44. During the course of arguments the learned counsel for accused has relied upon the decision of Hon'ble High Court of Karnataka, Bengaluru in W.P.No.17764/2024 (GM- RES) (Sri.C.M.Krishne Gowda vs The State), wherein the Hon'ble High Court of Karnataka, Bengaluru held that the requirement for investigation authorization under Sec.17 of the Prevention of Corruption Act comes into play only after the FIR is registered. Further the learned 39 Spl.C.C. No. 428/2017 counsel for accused has also relied upon the decision of Hon'ble High Court of Karnataka, Bengaluru in W.P.No.22483/2023 (Sri.Satish S vs. K.L.A. P.S. Davanagere) wherein it is held that the investigation by the Designated Police Officer is the Rule, while the investigation by an officer of a lower rank is an exception. Relying upon these decisions the learned counsel for accused has submitted that PW.12 Sri.K.P.Vishnuvardhan Pandit has searched the house of AGO without proper authorisation and hence drawing of Ex.P22 panchanama itself is not in accordance with law. Admittedly, as per Ex.P108 authorisation letter was issued to PW.12 and P.W.12 also deposed that PW.15 has conveyed him to conduct the raid and search of the said house and he has received authorisation letter under Sec.165 of Cr.P.C. It is relevant to note that as per the instructions of the IO, PW.12 has conducted raid of the said house and it is settled law that procedural delays and legal technicalities should not be allowed to defeat the objectives of the Act. The overreaching public interest and social purpose of the Act must be considered while interpreting the various 40 Spl.C.C. No. 428/2017 provisions of P.C. Act and deciding cases related to the said Act.
45. In this case, the prosecution has placed on record Ex.P.1, Ex.P.110, Ex.P.111, Ex.P.113 and adduced evidence of PW.1, PW.12 and PW.15 to establish that there is due compliance of Sec.17 of The P.C.Act. Ex.P.1 reveals that the concerned S.P., Karnataka Lokayukta, Bangalore City Division has authorized P.W.1 to register the case and investigate the case and Ex.P.110 reveals that memo was issued by the concerned S.P., authorizing PW.14 to conduct further investigation and Ex.P.111 reveals about proceedings at the office of the S.P., Karnataka Lokayukta, authorizing PW.14 to investigate the case and Ex.P.113 reveals the proceedings taken place at the office of S.P., authorizing PW.15 to further investigate the case. In respect of issuance of above said Ex.P.1, Ex.P.110, Ex.P.111 and Ex.P.113, PW.1, PW.12 and PW.15 in their evidence have deposed in detail before the court and in respect of above said authorisation issued by concerned S.P., Karnataka Lokayukta, authorising above said I.Os to 41 Spl.C.C. No. 428/2017 register the case and to investigate and further investigate the case, the accused in this case has not at all questioned the validity of said authorisation issued in favour of the above mentioned I.Os.
WITH REGARD TO ASSETS OF THE ACCUSED
46. The IO in his final report in the column of list of assets of AGO and his family members has mentioned items No.1 to 39, which were stated to be acquired by AGO and his family members during the check period. It is an admitted fact that AGO has disputed the value in respect of some of the assets only and he has not disputed the remaining assets. The list of assets as mentioned in the final report is as follows.
Sl. Assets Description of assets Value as per IO No. Code
1. AI-1 The building at Sy.No.22 and 22/1, 5th Rs.26,64,152.21 'B' cross, Sarakki Main Road, J.P.Nagar, Bangalore stands in the name of AGO
2. AI-2 The building at site No.23, Bogadi Rs.11,82,000.00 Gaddige road, Marattikyathanahally, Mysore stands in the name of AGO
3. AI-3 Value of building situated at No.4, Rs.13,20,315.00 Sarraki Main road, Shakambarinagar, J.P.Nagar, Bengaluru stands in the name of Smt.Prabhavathi.S
4. AI-4 The value of the building bearing Rs.94,84,166.00 No.904, 1st main, ISSRO Layout , Bengaluru,stands in the name of wife 42 Spl.C.C. No. 428/2017 of AGO i.e. Smt.Prabhavathi.S.
5. AI-5 Immovable property of an extent of Rs.12,00,000.00 0.8 gunta in Sy.No.96/4 and 0.8 gunta in Sy.No.96/5 situated at Billapura village, Sarjapura Hobli, Anekal stands in the name of wife of AGO Smt.Prabavathi.S.
6. AI-6 0.8 guntas in Sy.No.96/6 situated at Rs.6,00,000.00 Billapura village, Sarjapura Hobli, Anekal stands in the name of wife of AGO Smt.Prabhavathi.S.
7. AI-7 11 gunta in Sy.No.96/8 of Billapura Rs.7,01,250.00 village Sarjapura hobli, Anekal stands in the name of Smt.Prabhavathi.S. wife of AGO
8. AI-8 13 Guntas in Sy.No.115/3 of Rs.3,41,250.00 Doddathimmasandra village, Sarjapura hobli, Anekal.
9. AV-I The value of Kinetic Honda bearing Rs.25,000.00 Regn.No.KA.05.S.6007 stands in the name of AGO
10. AV-2 The value of Innova Vehicle bearing Rs.15,25,678.00 Regn.No.KA.05.MN.8663 stands in the name of Smt.Prabhavathi.S. wife of AGO
11. AV-3 The value of Hyundai i10 Car bearing Rs.5,19,718.00 Regn.No.KA.05.MH.394 stands in the name of Smt.Prabhavathi.S. wife of AGO
12. AV-4 The value of Santro Car bearing Rs.4,18,711.00 Regn.No.KA.05.Z.3716 stands in the name of wife of AGO Smt.Prabhavathi.S. wife of AGO Smt.Prabhavathi.S.
13. AV-5 The value of Punto Car bearing Rs.6,21,318.00 Regn.No.KA.05.MG.8373 stands in the name of Sandeep son of AGO
14. AHA-1 The value of Household articles found Rs.17,07,292.00 at House No.22, 5th 'B' cross, Sarakki Main Road, J.P.Nagar 1st Stage, Bengaluru.
15. AHA-2 The value of Household articles found Rs.4,19,645.00 at House No.904, 12th main road, ISSRO Layout, Benglauru.
16. AHA-3 The value of Household articles found Rs.3,32,800.00 43 Spl.C.C. No. 428/2017 at the residence of AGO, Maruthi Nilaya, 2nd floor, E.V.Road, Vapasandra Chikkaballapura.
17. AJ-1 The value of Golden ornaments found 00 at the time of raid at House No.22, 5th 'B' cross, Sarakki Main Road, J.P.Nagar 1st Stage, Bangalore
18. AJ-2 The value of Golden ornaments found 00 at the time of raid conducted to house Maruthi Nilaya, 2nd floor, E.V.Road, Vapasandra, Chikkaballapura Town
19. AJ-3 The value of Golden ornaments found 00 at the time of conducting search of Locker stands in the name of Smt.Prabhavathi.S. wife of AGO at State Bank of India, Jayanagar 4th 'T' block.
20. ASA-1 The value of Silver Anklets found at Rs.2,20,794.00 House No.22, 5th 'B' cross, Sarakki main road, J.P.Nagar, Bengaluru
21. ASA-2 The value of silver articles found at Rs.7,800.00 the time of conducting raid to Maruthi Nilaya, 2nd floor, E.V.Road, Vapasandra, Chikkaballapura
22. ALC-1 Cash found at the time of conducting Rs,1,31,600/-
raid to House No.22, 5th 'B ' Sarakki Main Road, J.P.Nagar 1st stage, Bengaluru.
23. ALC-2 Cash found at the time of conducting Rs.10,500.00 raid on 29.05.2014 to the house i.e. Maruthi Nilaya, 2nd floor, E.V.Road, Vapasandra, Chikkaballapur
24. ANSC-1 The value of the NSC purchased by Rs.3,700.00 AGO
25. ABA-1 The balance amount found at Rs.1,49,142.00 S.B. account of accused possessed at ICICI Bank Branch, Chamarajapet, Bengaluru.
26. ABA-2 Balance Amount found in the Rs.915 S.B.Account of the accused held at ICICI Bank Branch, Chamarajapet, Bengaluru
27. ABA-3 The balance amount in the 00 S.B.Account of the AGO held at ICICI Bank branch Chamarajapet, Bengaluru
28. ABA-4 The balance amount fond in the Rs.8,71,432.00 44 Spl.C.C. No. 428/2017 S.B.Account of the AGO possessed at SBM Mangalavarapet branch, B.M.Road, Channapatna
29. ABA-5 Balance Amount found in the Rs.1,00, 362.00 S.B.Account of Smt.Prabhavathi.S. held at ICICI Bank Limited, No.6, 3rd cross, M/s Puttalingappa road, Padmanabhanahar, Bangaluru
30. ABA-6 The balance amount found in the Rs.318.00 S.B.Account of S.Sandeep Son of the accused held at Vijaya Bank, Dayanandasagar Branch, Kumaraswamy Layout, Bengaluru.
31. ABA-7 The balance amount found in the Rs.2,16,852.00 S.B.Account of the son of the accused i.e. S.Sandeep at ICICI Bank, 7th block, Jayanagar, Bangalore.
32. ABA-8 The balance amount found in the Rs.2,27,903.00 S.B.account of daughter of AGO S.Pooja held at ICICI Bank, 7th Block Jayanagar, Bengaluru.
33. ABA-9 The balance amount found in the Rs.8,30,159.00 S.B.Account of daughter of AGO S.Pooja held at ICICI Bank, Chamarajapet Branch, Bengaluru.
34. ABA-10 The balance amount found in the Rs.242.00 S.B.Account of daughter of AGO S.Pooja held at Vijaya Bank, Dayanandasagar College Branch, K.S.Layout, Bengaluru
35. ADE-1 The deposited amount pertaining to Rs.4,260.00 R.R.No.HBCL 1583, 1584, 1585, 1586, 1587, 1588 of Sy.No.23, Gaddige road, Matikyathanahally, Bogadi village, Mysore
36. ADE-2 The deposited amount pertaining to Rs.4,360.00 RR No.BS5EH75333 and BS5EH758334 and BS5EH75335 stands in the name of wife of AGO Smt.Prabhavathi.S.
37. ADT-1 The deposited amount pertaining to Rs.1,450.00 Landline Phone No.26666655 in the name of son of the accused Sandeep
38. ADT-2 The deposit amount pertaining to Rs.4.440.00 Telephone No.26657070, 26657272 and Telephone No.2667272 stands 45 Spl.C.C. No. 428/2017 jointly in the name of AGO and his wife
39. AGC-1 The deposit amount deposited by wife Rs.350.00 of the accused to obtain Gas connection TOTAL Rs.2,54,11,308.21
47. As mentioned above the AGO in this case has not disputed the valuation of assets made by the Investigating Officer in respect of Assets Nos.5 to 13, 17 to 19, 22, 23, 24, 35 to 39. The AGO has disputed regarding the valuation made by the Investigating Officer in respect of Asset Item No.1, 2, 3, 4, 14, 15, 16, 20, 21 and 25 to 34. Therefore this Court is of the opinion that there is no necessity to discuss, appreciate and further analyze the available oral and documentary evidence in detail regarding the above said admitted assets. DISPUTED ASSETS
i) Asset Code .. AI-I.
48. In the final report, the Investigating Officer has mentioned Asset Code No.AI-I as a building which stands in the name of AGO situated at No.22 and 22/1, 5th 'B' cross, Sarakki Main Road, J.P.Nagar, Bengaluru. According to the Investigating Officer the total valuation of 46 Spl.C.C. No. 428/2017 the said asset No.AI-I is Rs.26,64, 152.21. The materials on record reveals that the Investigating Officer has assessed the value of the said building under 3 different parts;
a) The amount spent by AGO to Rs.83,000/-. purchase the site.
b) The cost of construction of Rs.11, 10,573. building..
c) The cost of Interior Design.. Rs.14,70,579.21
a) Regarding the Sale Consideration paid by the AGO to purchase the site in No.22 and 22/1, 5th 'B' cross, Sarakki Main Road, J.P.Nagar, Bengaluru.
49. It is an admitted fact that the AGO has purchased the said site on 05-09-1992 under the registered Sale Deed, registered as document No.3711/1992-93 having an extent of 60 x 35 feet and he purchased it for the Sale Consideration of Rs.83,000/-. It is an admitted fact that AGO in his Annexure/Schedule and in his APR has declared that he has purchased the said site by using his saved salary amount. Even in his evidence the AGO, who is examined as DW.1 has stated that he does not dispute the valuation as assessed by the Investigating Officer regarding purchase of the said site property as Rs.83,000/-.Hence there is no ambiguity to hold the view 47 Spl.C.C. No. 428/2017 that AGO has purchased the said site for Rs.83,000/- and hence the valuation made by the Investigating Officer in this regard is proper and correct and the same is hereby accepted.
b) With regard to construction cost:
50. It is the contention of prosecution that in-between 1993 to 2002 in the said site accused has constructed the building and as per the valuation made by PW.7, the construction cost of the said building is Rs.11,10, 573/-. However, it is the specific contention of the accused that due to paucity of funds he was unable to construct the building and hence he entered with an MOU with M/s Cairn Construction, a proprietary concern, Bengaluru on 26-04-1993 and as per the terms of the said MOU the said developer was permitted to develop the said property and developer has to construct the building and retain the same for a period of 10 years from 26-04-1993 and in consideration of the Developers expenditure over the cost of construction, the developer is entitled to mortgage, lease and rent out the property and enjoy the returns 48 Spl.C.C. No. 428/2017 from such transaction for a period of 10 years only and AGO has received interest free deposit of Rs.50,000/- from the developer which is refundable while developer vacate the property.
51. It is also the contention of the accused that as per said Ex.D.1 Memorandum of Understanding the developer constructed the residential house on the site measuring to the extent of 2200 Sq ft, i.e., on the existed building the Developer has constructed first and second floor and developer started to enjoy the building as per the terms and conditions as agreed. It is also the contention of the accused that since the Developer need funds emergently he entered into Ex.D2 Memorandum of Termination of Understanding on 22-03-2000, three years prior to maturity of Ex.D1 MOU and accordingly the matter was settled and AGO agreed to compensate towards loss of earing by way of rent release to the developer and agreed to pay Rs.2,50,000/- in full and final settlement of the cost of construction of the premises. It is also the contention of the accused that he had availed loan of 49 Spl.C.C. No. 428/2017 Rs.1,50,000/- from LIC which is evident from Ex.P.47 to construct the building and therefore the total cost incurred by AGO is Rs.50,000/- refund deposit and Rs.2,50,000/-towards Termination Deed Settlement and in total the AGO has spent Rs.3,00,000/- only in this regard and therefore it is the specific contention of the accused that Investigating Officer has wrongly assessed the construction value of the said building as Rs.11,10,573/- instead of Rs.3,00,000/- and hence the accused requested to consider the cost of the construction of the building in the said site is only Rs.3,00,000/-.
52. In-respect of the said contention regarding the valuation of the construction cost of the building existing in the said site, the prosecution relies upon the evidence of PW.7 the expert who visited the property and submitted his report with details of assessing cost of construction. The prosecution also relies upon the evidence of PW.1 the Investigating Officer and admission of DW.1 made during the cross-examination in this regard. As aforesaid it is the contention of the prosecution that the said Ex.D-1 50 Spl.C.C. No. 428/2017 MOU and Ex.D.2 Termination Memorandum are unregistered documents and they were not proved by the accused and they have no legal sanctity. On the otherhand, as stated above, the AGO much relies upon said Ex.D.1 MOU and Ex.D.2 Termination Memorandum. Before determining whether the prosecution has proved the construction value of the building as per Ex.P.4 or not, the Court opines that it is just and necessary to determine whether the AGO has proved his contention that he has spent only Rs.3,00,000/-as cost of construction on the basis of Ex.D.1 and Ex.D.2 or not?
53. It is an admitted fact that said Ex.D1 MOU and Ex.D2 Termination Memorandum were seized by the Investigating Officer during the raid conducted to the house of AGO. It is an admitted fact that Ex.D.1 and D.2 are unregistered documents. Further, it is relevant to note that in Ex.D.1 and D2, nowhere the seal and signature of M/s Cairn Construction is found. It is settled law that when a party to the litigation asserts about existence of certain facts the burden is upon such 51 Spl.C.C. No. 428/2017 party to prove the said fact. Therefore in this case the burden is upon the AGO to prove the existence of Ex.D.1 and D.2 as contended. Admittedly the AGO who is examined as DW.1 in his evidence has reiterated the aforesaid contention regarding the execution and existence of Ex.D.1 and D.2. However, in his cross- examination made by learned Public Prosecutor, DW.1 has admitted that he has not declared and disclosed in his APR regarding the purchase of said site by him and also he has not declared and disclosed regarding construction of the building in the said property by him and M/s Cairn Constructions. When it is suggested to DW.1 that such company by name M/s Cairn Construction does not exist in Bengaluru. DW.1 has denied the said suggestion.
54. By relying upon the clauses of Ex.D.1 and D.2 and the evidence of DW.1 and cross-examination of PW.1 Sri.T.V.Manjunath the Investigating Officer, made by the learned counsel for accused at para No.114 to 119, the learned Counsel for accused has argued that said PW.1 52 Spl.C.C. No. 428/2017 Investigating Officer in his cross-examination has clearly admitted about the clauses of Ex.D.1 and D.2 specifically and since I.O. himself has admitted those facts, there is no burden upon the accused to prove further regarding existence and execution of Ex.D1 and D2 and since admitted facts need not be proved, the contention of the accused may be accepted. Further in addition to said submission the learned counsel for accused relied upon the decision of Hon'ble High Court of Madras reported in 2022 SCC Online Madras 8771 (Kasthuri Vs R.Hemalatha) and submitted that in the said case Hon'ble High Court of Madras has directed the trial court to receive the unregistered documents in evidence and on the same principle, Ex.D.1 and D.2 though unregistered, can be taken into consideration. On careful perusal of the above said citation relied upon by the learned counsel for accused, it reveals that in the said case the Hon'ble High Court of Madras considered the scope of Section 49 and Section 17 of Registration Act and held that the order of the Trial Court regarding answering preliminary issue in the Affirmative regarding receiving unregistered 53 Spl.C.C. No. 428/2017 Agreement of Sale on record is wrong. The issue before the Hon'ble High Court of Madras in the said case was whether an unregistered Agreement of Sale can be marked as evidence or not. However, the facts of the present case and facts of the aforesaid relied decision are entirely distinct and different and hence the Court is of the opinion that the said decision may not helpful to the accused in this case.
55. Further the learned counsel for the accused also relied upon the decision of Hon'ble Apex Court reported in (2000)7 SCC 120 (Uttam Singh Duggal & Co. Ltd Vs United Bank of India and others) and submitted that since the contention of the accused is admitted by the Investigating Officer in his cross-examination, the contention of the accused regarding the cost of construction of the building as Rs.3,00,000/-only has to be accepted. On careful perusal of the aforesaid decision relied upon by the learned counsel for accused it reveals that the Hon'ble Apex Court in the said case taken into consideration the provision of order 12 Rule 6 of CPC and 54 Spl.C.C. No. 428/2017 Sec.18 to 23 of Indian Evidence Act and held that admissions, are of many kinds and may be actual, as when they are contained in pleadings or in answer to interrogatories, or implied as when inferences are made from the pleadings which have not been traversed.
56. The principles laid down by the Hon'ble Apex Court in the above said decision is very much relevant while considering the aspect of admission. However, in this case PW.1 who is the Investigating Officer in his cross-examination, when it is suggested to him by the learned counsel for accused regarding the clause of Ex.D1 Memorandum of Understanding and Ex.D2 Memorandum of Termination he has admitted the said clauses. Only for the reason that PW.1 Investigating Officer has admitted the clauses of Ex.D1 and D2, it cannot be construed as admission of the contentions of the accused and that accused has proved Ex.D1 and D2. It is settled law that the evidence of a witness has to be appreciated by considering the whole evidence on record and not by considering portions of his evidence. Hence the Court is 55 Spl.C.C. No. 428/2017 of the opinion that the above said decision relied upon by the learned counsel for accused is also not helpful to the accused in this case.
57. It is settled law that mere marking of a document is not proof of the document and mere production of the document is also not proof of the document. In this case the prosecution has specifically denied the existence of a Company by name M/s Cairn Constructions itself and when the prosecution has denied the existence of any such developers, it is the bounden duty of the AGO to examine the representative or any authorized person of said construction company, if it really exist. There is no explanation by the AGO for his failure to examine any authorized person or representatives of said M/s Cairn Construction. Further to substantiate that the terms of Ex.D1 was actually fulfilled by construction of first and second floor in the said property, the AGO has not produced any documents and any acceptable evidence. According to AGO the said developer is entitled to mortgage or lease the said constructed building for a period of 10 years from 26-04-1993. According to the 56 Spl.C.C. No. 428/2017 AGO the said Memorandum of Understanding was terminated 3 years prior to the fixed period of 10 years. However, there is no evidence on record, which reveals that after execution of Ex.D.1, before coming into existence of Ex.D2 i.e. for period of 7 years M/s Cairn Construction has constructed first and second floor and it has enjoyed the said constructed building by mortgaging or leasing out the said building. Since it is the contention of the accused that he has spent only Rs.3,00,000/- in view of existence of Ex.D1 and D2 for construction of the said building in Item No.1 of the asset, naturally the entire burden is upon the accused to prove this aspect and as pointed out above, for the aforesaid reasons and said discussions there is no ambiguity to held the view that AGO has failed to substantiate his specific contentions that the cost of construction of the building in said site is only Rs.3,00,000/- and accordingly the court negativates the said contention of the accused.
58. As mentioned above, it is the case of the prosecution that the cost of construction of the building in the said 57 Spl.C.C. No. 428/2017 site is Rs.11,10, 573/- and the prosecution in this regard relies upon the oral evidence of PW.7 Krishna Naik and PW.1 the Investigating Officer Sri.T.V.Manjunah and Ex.P4 Valuation report. PW.1 the Investigating Officer in his examination-in-chief has clearly stated that he assessed the value of the construction of the building in the said site on the basis of Ex.P4 Report submitted by PW.7. Further the prosecution relies upon the evidence of PW.7 Krishna Naik, who in his examination-in-chief clearly stated the manner in which he has assessed the cost of construction of the said building. In his examination-in-chief he has also deposed that he has observed the materials used for flouring in respect of construction materials and materials used for window and doors and he has also collected information regarding the year of construction of said building. He has also stated in detail in his Report that how he has calculated the approximate value of ground floor and first and second floor.
59. However in his cross-examination made by Learned counsel for accused it is suggested to him that he has not 58 Spl.C.C. No. 428/2017 considered the detail schedule of rates and he has considered only rates as available in the Sub-Registrar's Office and the witness has admitted the same. However, PW.7 has denied that he has submitted false valuation report as per Ex.P4.
60. Relying upon the aforesaid evidence on record, it is submitted on behalf of the prosecution that PW.7 is an expert and his report Ex.P4 is unrebutted by the accused and hence the same may be considered. On the other hand it is submitted on behalf of the accused that PW.7 is not competent to assess the value of the building and hence his report is not reliable. As mentioned above the accused in this case relied upon Ex.D1 and D2 which were held by the court as unreliable. Regarding the contention of cost of construction as contended by the AGO, this Court already held that the accused has failed to substantiate his contention regarding cost of construction as contended by him. On the other-hand, the prosecution relies upon Ex.P4 the Report of PW.7, which is further substantiated by the oral evidence of 59 Spl.C.C. No. 428/2017 PW.7.
61. On careful perusal of evidence of PW.7 and his report as per Ex.P4 it clearly reveals that said PW.7 in his Ex.P4 report as stated the manner in which the valuation of the construction of the building is assessed. Since the accused has not placed any contra evidence and any materials in support of his contentions which rebutts the evidence of PW.7 and his report, the Court is of the opinion that the prosecution has succeeded in proving the cost of the construction value of the building existing in said site and therefore the valuation as assessed by the Investigating Officer in respect of cost of construction of building is proper and correct and the same is accordingly accepted.
c) With regard to cost pertaining to Interior Design/Decoration:
62. As per the final report, it is the contention of the prosecution that the AGO has spent Rs.14,70,579.21 as cost of Interior Design in the building found in the above said site No.22. The prosecution relies upon the oral evidence of PW.1 T.V.Manjunath, PW.7 Krishna Naik and 60 Spl.C.C. No. 428/2017 Ex.P5 Report in this regard. On the otherhand the AGO has contended that the I.O. has made imaginary valuation regarding interior decoration of the building and AGO has not at all incurred any expenditure on interior decoration and never undertaken such work after getting vacant possession from the developer. It is also the submission of learned counsel for accused that the accused has obtained the vacant possession of the premises along with permanent fixtures like DG set, Electrical fixtures, furniture and whatever furniture work done in the premises has been undertaken by the developer himself at his cost during the time of construction of the building and he has not incurred any expenses in this regard.
63. In order to further substantiate his contentions the accused who is examined as DW.1 in his examination-in- chief has reiterated the said aspect. However in his cross- examination made by learned Public Prosecutor, D.W.1 has admitted that in Ex.D1 nowhere it is mentioned that the interior decoration shall be made by M/s Cairn Construction. Further DW.1 has admitted that he has not 61 Spl.C.C. No. 428/2017 produced any document either before the Court or before the Investigating Officer to show that interior decoration of the said house was made by M/s Cairn Construction. At para No.7 of his cross-examination DW.1 has admitted that when M/s Cairn Construction handed over him the possession of the first and second floor it contain interior decoration and other fixtures and he has not produced any documents or photographs either before the Court or before the Investigating Officer in this regard. On careful perusal of Ex.D1 Memorandum of Understanding and Ex.D2 Termination of Memorandum it reveals that nowhere it is stated that the developer has to make interior decoration of the said house and it is relevant to note that even in Ex.D2 at page No.2 at clause No.2 it is stated that the Developer handed over the vacant possession of schedule property with permanent fixtures DG set, Electrical fixtures and furniture fixtures only and with regard to other interior decoration Ex.D1 and D2 are silent. Hence in view of the absence of any such recitals in Ex.D1 and D2 regarding interior decoration and as admitted by DW.1 in his cross-examination, there is no 62 Spl.C.C. No. 428/2017 ambiguity to hold the view that AGO has failed to substantiate that all the interior decoration in the said building were made by M/s Cairn Construction as contended by him. Hence the said contention of AGO is hereby negativated.
64. In order to substantiate its case that the cost of interior decoration in the said building is Rs.14,70,579.21, the prosecution relies upon the evidence of PW.7 Krishna Naik, who in his examination-in-chief has deposed that as on the date of completion of interior decoration done to the said building he has assessed the total value as Rs.14,70,579.21 and this rate applies as on 2013-2014. It is pertinent to note that in his examination- in-chief and Ex.P5 Report he has clearly mentioned the interior decoration items as found in the said building. In the cross-examination of PW.7 it is elicited that PW.7 has not collected catalog of construction material and fixture rates from the hardware shop personally for the purpose of preparing Ex.P5 Report. PW.7 has also admitted that there will be fluctuation of building materials from the 63 Spl.C.C. No. 428/2017 date of commencement till the completion date. However the court is of the opinion that the said portion of cross- examination made to PW.7 by the accused is not helpful to the accused to disprove the valuation of interior decoration items as assessed by PW.7 and as stated in his report Ex.P5. It is the accused who is disputing the valuation of the interior decoration items and hence it is the burden upon the accused to prove that M/s Cairan Constructions itself has spent money for interior decoration and since accused has failed to substantiate those facts, there is no ambiguity to accept Ex.P5 Report submitted by PW.7 in this regard.
65. Apart from this, it is pertinent to note that nowhere the accused has denied the existence of interior decoration items as in detail mentioned in Ex.P5 Report. When it is an undisputed fact that the said building interiorly decorated with the interior design as mentioned in Ex.P5 Report is existing, naturally to fix those fixtures one has to spend amount and since the accused failed to substantiate his contention that the developer had spent 64 Spl.C.C. No. 428/2017 amount for it, the contention of the prosecution that it is the AGO who has spent the amount for the purpose of Interior Decoration of the said building is to be accepted. The said Ex.P5 Report regarding the cost or expenses incurred to fix the interior decoration of the building is supported by the version of PW.7 Krishna Naik. Hence relying upon the said oral and documentary evidence on record the Court is of the opinion that the prosecution has succeeded in proving the aspect that the accused has spent Rs.14,70,571/- for the purpose of interior decoration of the said building and hence the value as assessed by the Investigating Officer in this regard needs to be accepted.
66. In view of the aforesaid discussion regarding the cost of purchase of site at Rs.83,000/-, cost of construction of the building at Rs.11,10,573/- and cost of interior decoration at Rs.14,70,579.21, the Court holds that valuation made by Investigating Officer in this regard that Rs.26,64,152.21 is the value of Asset No.I is proper and correct and the same has to be accepted. 65
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67. In the final report the Investigating Officer has mentioned this item No.2 as the building No.23 situated at Gaddige road, Marattikyathanahally, Bogadi Mysore having an extent of 100 x 40 feet and Investigating Officer has assessed the value of this asset as Rs.11,82,000/- and according to the prosecution the said site and the building stands in the name of AGO. The Investigating Officer has considered the value of this asset in two parts.
1. The Investigating Officer has considered that the said site was purchased for Rs.7,000/- by the AGO under the registered Sale Deed, dated 26-11-1992 as per the document No.5480-5481/1992-93 and,
2. The Investigating Officer has considered the cost of construction of the said building as Rs.11,75,000/-.
68. To substantiate this aspect the prosecution much relies upon oral evidence of PW.1 T.V.Manjunath and 66 Spl.C.C. No. 428/2017 PW.9 Sri.M.Kumaraswamy. Further the prosecution relies upon Ex.P-6 the certified copy of the registered Sale Deed dated 26-11-1992 and Ex.P7 the valuation report submitted by Assistant Executive Engineer. On the other hand the accused admits that the said site was purchased by him for a Sale consideration of Rs.7,000/-. However, the accused disputes the valuation made by the PW.9 regarding the cost of construction of the building and the accused also disputes the competency of PW.9 to submit Ex.P7 Report. Before adjudicating whether the prosecution has properly assessed the valuation of construction of the building in said Sy.No.23 is Rs.11,75,000/- or not, it is necessary to determine whether the accused has proved his contention that the building existing therein was constructed by the developer as per Ex.D3 entered between him and said Developer by name D.Narayan Singh or not.
69. It is the specific contention of the accused that due to want of funds he had given the task of construction of 67 Spl.C.C. No. 428/2017 the building to one D.Narayan Singh S/o Dwarakanath Singh who was a developer, who has agreed to develop the property into commercial building and in this regard, both entered into a Memorandum of Understanding dated 26-03-2012 which is produced as per Ex.D3. It is further contention of the accused that as per this MOU the Developer has to construct the commercial building at his cost and so far as share of built up area is concerned, the Developer agreed to construct the commercial structure and deliver 40% of super built up area to the AGO free from encumbrance for the absolute use and his ownership and further the remaining 60% area was left to developer absolutely. The learned counsel for accused has submitted that all these facts were well within the knowledge of the I.O. and inspite of the documents available in the prosecution records, intentionally the IO has valued the cost of construction of the building at Rs.11,75,000/-, which is not at all tenable and hence he requested to set aside the valuation as assessed by Investigating Officer and requested to consider the purchase value of Rs.7000/- only in-respect of the value 68 Spl.C.C. No. 428/2017 of the said building.
70. To substantiate this aspect the accused himself stepped into the witness box and examined as DW.1 and in his examination-in-chief at para No.11 he has reiterated these aspect and through DW.1 Ex.D3 MOU dated 26-3-2012 got exhibited. However, it is pertinent to note that in his cross examination at para No.13 DW.1 has admitted that Ex.D3 MOU is silent regarding the details of the building to be constructed and he has further admitted that except Ex.D3 he is not in possession of any documents to show that said building was constructed by the said developer. According to DW.1 as per Ex.D3, five shops were came to his share and he has admitted that Ex.D3 is silent regarding the details of the shops, details of the floors and how many shops were came to his share as per MOU. Further DW.1 has also admitted that in his APR he has not declared that he has got developed and constructed the said building by entering into MOU with said D.Narayan Singh and he has also not obtained prior permission for 69 Spl.C.C. No. 428/2017 construction of the said building. He has admitted that he is not in possession of any other document to substantiate his said contentions.
71. On careful perusal of said Ex.D3 MOU and the evidence of DW.1 on record, it clearly reveals that except Ex.D3, the accused has not produced any documents to substantiate his contention that said building was constructed by Sri.D.Narayan Singh as contended. Further as admitted by accused in his cross-examination Ex.D3 is silent regarding the nature of the building to be constructed and developed by the said developer. Ex.D3 only recites about the understanding to construct one commercial complex and said Ex.D3 is silent regarding the number of shops in which floor will be given to the share of the AGO. The prosecution has seriously disputed the existence of any Company by name M/s Cairn Construction and when the prosecution has disputed the very existence of any such company, it is the bounden duty of the accused to prove the execution and existence of Ex.D3 MOU by examining any authorised 70 Spl.C.C. No. 428/2017 person of the said construction company or by examining the said developer by name Sri.D.Narayan Singh. The materials on record reveals that the accused has not made any efforts to substantiate these facts by examining them. There is no explanation given by the accused for non examination of said developer and hence there is no ambiguity to hold the view that the accused has failed to prove his aforesaid contentions regarding construction of the building in the said site by the Developer as contended.
72. As per Section 106 of Indian Evidence Act when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Here in this case it is the assertive contention of the accused that the building in the said site was constructed by the developer as per the terms of Ex.D3 and therefore quite obviously it is burden upon the accused to prove that aspect by adducing relevant and required evidence. As discussed above the accused has failed to substantiate the said aspect and accordingly the contention of the accused that 71 Spl.C.C. No. 428/2017 in the said property the said building was constructed by the Developer is hereby Negativated.
73. On the other hand to substantiate the value of the building constructed in the said property is Rs.11,75,000/-, the prosecution has examined PW.1 T.V.Manjunath who in his evidence has deposed before the Court that he has secured Ex.P6 from the office of Sub-Registrar, Mysore regarding proof of purchase of the said property by AGO under registered Sale Deed and further in order to assess the value of the said building existing in the property he has obtained the report from PW.9 the Assistant Executive Engineer, P.W.D. as per Ex.P.7 and on the basis of the sale consideration as mentioned in Ex.P6 Sale deed i.e. Rs.7,000/- and on the basis of the value of construction of the building i.e., Rs.11,75,000/-, as mentioned in Ex.P7 he has assessed and calculated the value of the said item No.2 as Rs.11,82,000/-.
74. To further substantiate this aspect the prosecution 72 Spl.C.C. No. 428/2017 has examined PW.9 M.Kumaraswamy, who in his examination-in-chief has deposed that as per the directions of Executive Engineer, he visited the said property and valued it. In his evidence he has further deposed that he has received requisition from Karnataka Lokayukta Police on 22-10-2014 requesting him to conduct inspection and value the property and accordingly he visited the said property and he has valued the cost of construction of the said building on the basis of the schedule rates for the year 2012 -2013 and he assessed the value of entire building as Rs.11,75,000/-and submitted report as per Ex.P-7. In his cross-examination made by learned counsel for accused nothing favourable to the case of the accused is elicited. PW.9 has admitted that he has not enclosed any documents which discloses DSR rates for the relevant year 2012-2013 along with Ex.P.7. He has denied that he has unauthorisedly visited the building and his report is baseless.
75. Relying upon the said evidence on record, it is 73 Spl.C.C. No. 428/2017 submitted on behalf of the prosecution that the AGO has purchased Item No.1 and 2 in the same year and not disclosed the fact of construction of the building in Sy.No.23 and in his APRs he has only declared about purchase of item No.1 and 2 and APR's discloses that he had not obtained permission for construction of the building in the said sites. It is also argued on behalf of the prosecution that PW.9 who is the competent authority visited the said property and as per the rules he has assessed the valuation of the building and submitted his report and hence on the basis of oral evidence of PW.1 and PW.9, the cost of construction of the said building may be considered as Rs.11,75,000/-and the total value of the asset No.2 may be considered as Rs.11,82,000/- which includes the sale consideration of Rs.7,000/-.
76. On the other hand the learned counsel for accused has pointed out that PW.1 the Investigating Officer in his cross-examination at para No.121 to 123 has clearly admitted regarding the different clauses of Ex.D3 MOU and since IO himself has admitted these aspects, the 74 Spl.C.C. No. 428/2017 Ex.P7 report cannot be considered and the IO ought to have considered Ex.D3 and he ought not have relied upon Ex.P7 and hence requested not to consider Ex.P7 Report. Further it is also argued on behalf of the accused that PW.9 is not competent authority to asses and submit valuation report and PW.9 has not considered DSR rates and he has considered the valuation of Sub-Registrar's Office and no samples were obtained and no scientific test was conducted and even wood is not tested and rates of sand and soil is also not stated and hence requested not to consider the valuation report submitted by PW.9 as per Ex.P7.
77. As rightly pointed out by the learned Public Prosecutor the AGO in this case has received reminders from their higher authorities regarding the information sought by his higher authorities for non submission of documents along with APR. The correspondence made to the AGO by his higher authorities in this regard is evident from Ex.P101 at page No.47, 48, 49, 51. 75
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78. However, in this regard the learned counsel for the accused has submitted that subsequently the AGO has furnished the APRs to his higher authorities which is evident from Ex.P101 at page-40. The said page-40 in Ex.P101 reveals that the APRs of the AGO of the year 2002 to 2008 was subsequently furnished and taken on record by the higher authorities only and it does not reveal that the accused has obtained permission from the higher authorities regarding construction of the building. However, now the point remains for consideration is whether failure to submit the annual asset and liability statement by the public servant can make him liable to make disciplinary proceedings or criminal liability can be fixed for this or not.?
79. On careful perusal of the records, it reveals that Ex.P71 (File No.8 page-263) reveals that at Sl.No.2 in the annexure regarding details of immovable asset, the accused has mentioned the location of this property and he also given description of the property as 100 x40 feet and it is a site and value of the site is Rs.11,000/- and in 76 Spl.C.C. No. 428/2017 the coloum of permission of employer it is mentioned as " N.A." and he has stated that same is purchased out of his Savings during 1992. In Ex.P71 at page 263 itself the AGO stated regarding purchase of asset Item No.1 site No.22 situated at Sarakki main road, J.P.Nagar, Bengaluru during 1992-95 itself. These entries clearly supports the contention of the prosecution that both properties appears to have been purchased by AGO during 1992 itself.
80. Further it is an admitted fact in the family of AGO during 1992 except AGO there were no other earning members. Further the APR's produced by IO before the Court and the APR's and schedule submitted by accused and also the admission made by D.W.1 in his cross- examination reveals that he has not obtained prior permission from the higher authorities to construct the building in the said site. Now relying upon these facts on record the learned Public prosecutor has submitted that AGO has not reported the fact of construction of the building and also not obtained prior permission before 77 Spl.C.C. No. 428/2017 constructing the building, which clearly reveals that the AGO has not complied the conduct Rules and hence there is volition of service Rules and criminal liability has to be fixed for want of compliance of said conduct Rules. However the court opines that said contention of prosecution is not tenable and in this regard the court intends to rely upon the decision of Hon'ble Apex Court in the case of Ashok Tshering Bhutia Vs State of Sikkim case where the Hon'ble Apex Court at para No.40 held that "Thus, in such facts, situation, the appellant could not be fastened with criminal liability for want of compliance with the said requirement of the Rules".
81. The above said decision of Hon'ble Apex Court makes it clear that failure to submit annual asset and liability statement make the public servant liable to face disciplinary proceedings under the Service Rules applicable to such public servants, but such failure on the part of the public servant cannot have the effect of rendering in the evidence placed by him with regard to the pecuniary advantages received by him as 78 Spl.C.C. No. 428/2017 inadmissible in criminal prosecution lodged under the provision of Prevention of Corruption Act. Hence the Hon'ble Apex Court held that any such fact the accused cannot be fastened with the criminal liability for want of compliance of said requirement, since the conduct Rules are not rules of evidence. Therefore the said contention of prosecution in this regard is not tenable.
82. During the course of arguments the learned counsel for accused has further submitted that all the contentions of the accused regarding Ex.D3 is clearly admitted by Investigating Officer in his cross-examination and hence the contention of the accused has to be accepted. In support of the said contentions the learned counsel for accused has relied upon the decision reported in [2017] Vol.3 SCC 702. (Executive Officer Vs Chandran and others). In the said decision the Hon'ble Apex Court at para No.28 has held that facts which are admitted need not be proved. The Hon'ble Apex Court further held in the said case that when the plaintiff himself admitted that land bearing Sy.No.188/2 was recorded in the name 79 Spl.C.C. No. 428/2017 of 'J' the observation made by the High Court that no documentary evidence was filed to establish that Sy.No.188/2 stood in the name of 'J' held erroneous and misplaced. On perusal of the principles laid down in the aforesaid decision, it clearly reveals that the Hon'ble Apex Court has discussed Section 58 of Indian Evidence Act, in the said case pertaining to the admission made by the plaintiff in his evidence regarding the survey number of the land. In this case admittedly the PW.1 who is the Investigating Officer who has only admitted about clauses of Ex.D3 when it is suggested to him. It is settled law that suggestion is not an evidence. Further it is also relevant to note that mere marking of a document is not proof of the document and mere production of the document is not the proof of contents of the documents. As discussed above the accused in this case has not examined the said developer by name Sri.D.Naryan Singh and also not adduced any acceptable and reliable evidence in support of his contention to prove Ex.D3 and therefore the said contentions of the accused in this regard is not accepted. 80
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83. Further the learned counsel for accused has argued that the valuation made by PW.7 in respect of building existing in Asset Item No.1 and the valuation made by PW.9 regarding the building existing in this item No.2, cannot be considered as both have no competency to assess the value of the building constructed and both PW.7 and PW.9 have not assessed the value of the building constructed as per DSR rates. It is also argued that all buildings, ought to have been valued as per PWD manual, only by Executive Engineer or Assistant Executive Engineer. Admittedly, the accused has not placed any acceptable materials to substantiate the said contention. Expert is not a witness of fact and his evidence is really of an advisory character and his duty is to furnish court scientific test criteria to test accuracy of conclusions. Based on such expert opinion and appreciating facts of each case court must give its independent judgment. Apart from this it is relevant to note that communication is made by the Karnataka Lokayukta Police to the concerned Executive Engineer of PWD to inspect the buildings involved in this case and 81 Spl.C.C. No. 428/2017 submit valuation report and it appears from the record that PW.9 was the Assistant Executive Engineer when he visited the property and submitted Ex.P7 Report and PW.7 was the Junior Engineer who was authorized by Assistant Executive Engineer to visit the Item No.1 and other properties and to submit report. Hence the contention of the learned counsel for accused that PW.7 and PW.9 have no competency and authority to submit the valuation report is not tenable.
84. However during the course of arguments in this regard the learned counsel for accused relied upon the decision of Hon'ble High Court of Karnataka reported in 2012 (6) KLJ 180 [Sripada Gouda Vs State by Karnataka Lokayuktha Police Station, Dharwad] and submitted that the Hon'ble High Court, the then Circuit Bench, at Dharwad has held that the standard rate fixed by PWD ought to have been considered and since in this case the Sub-Registrar's Office value is considered, the report submitted by PW.7 and PW.9 is not tenable. On careful perusal of the above said citation relied upon by Learned 82 Spl.C.C. No. 428/2017 Counsel for accused, it reveals that in the said case, the facts of the case before Hon'ble High Court is of that the trial court has allowed reductions to an extent of 20% with reference to the value of the house property on the premise that the construction was done by the accused in his self supervision by utilizing the lorry owned by him in the name of his wife and also by utilizing the cement at cheaper rate since his father was dealing with cement business. However in this case it is an admitted fact that the said building was not constructed under the supervision of AGO. Since the facts and circumstances of the case on hand and facts and circumstances of the above said relied decisions are entirely different, the Court is of the opinion that the observations made by Hon'ble High Court of Karnataka in the above said decision is not helpful to the accused in this case.
85. The materials on record clearly reveals that PW.9 was retired as an Executive Engineer and while visiting the said property he was working as an Assistant Executive Engineer and his evidence and Ex.P7 Report 83 Spl.C.C. No. 428/2017 clearly reveals that the manner in which he has assessed the value of the property and in his cross-examination he has clearly stated that there is no hard and fast rules for a private person to follow the DSR rates in the construction of the building. Mere reason that enclosure list disclosing DSR rates were not annexed with Ex.P7, that itself does not invalidate Ex.P7 valuation report submitted by PW.9. As discussed above, the accused in this case who has contended that the valuation made by the IO regarding the construction value of the building is not correct, has failed to prove the same. On the other- hand prosecution by examining PW.1 and PW.9 and on the basis of Ex.P7 Report, succeeded in proving the facts about the valuation of the building existing in the said property as Rs.11,75,000/-. Hence taking into consideration all these facts and considering the admitted Sale Consideration of Rs.7,000/-, the Court holds that the valuation made by the IO that the value of the said property is Rs.7,000/- + 11,75,000/- = Rs.11,82,000/- is proper and correct and the same is accepted accordingly. 84
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86. The IO in his final report mentioned this item No.3 as AI-3 which is an immovable property purchased in the name of wife of AGO and he has assessed the value of this item No.3 as Rs.13,20,315/-. The final report and the documents on record reveals that the instant item No.3 is purchased in the name of wife of AGO by name Smt.Prabhavathi and description of the property is No.4 Sarakki Main Road, Shakambari Nagar, J.P.Nagar 1st stage, Bengaluru. The IO has assessed the value of this property under 3 different heads.
(a) The Purchase value of the property as Rs.82,000/-.
(b) The construction cost of the building as Rs.6,38,315/-
(c) The cost incurred for Interior Design of the building as Rs.6,00,000/-.
(a) With regard to purchase value of the property as assessed by the IO as Rs.82,000/- is concerned:
87. The accused has not at all disputed the said aspect. In order to substantiate its contention that the said 85 Spl.C.C. No. 428/2017 property was purchased in the name of wife of the accused for Rs.82,000/-, the prosecution relies upon Ex.P8 registered Sale Deed, dated 10-10-2014. On careful perusal of Ex.P.10 true copy of the registered Sale Deed, dated 10-10-2014, it reveals that the said asset item No.3 property was purchased by wife of AGO on 10-10-2014 from one Sri.Veerabhadraiah through his GPA holder Sri.S.Srinivasamurthy (accused) for Rs.82,000/-. It is pertinent to note that Ex.P8 Registered Sale Deed was registered after the check period in this case. As mentioned above the check period considered in this case is from 26-10-1978 to 29-5-2014. Apparently Ex.P8 Sale Deed was registered after the check period. However, the said amount of Rs.82,000/-sale consideration is considered in this case because the recital in the Sale Deed at Page No.5 of Ex.P8 reveals that the wife of AGO has entered into an Agreement of Sale with the vendor on 11-9-1996 and on the same day she has paid the full sale consideration to the vendor. Hence taking into consideration the said recitals as to full payment of Sale consideration of Rs.82,000/- by the wife 86 Spl.C.C. No. 428/2017 of AGO to the vendor, there is no ambiguity to hold that the view that the said property was purchased by wife of the accused for Rs.82,000/-.
(b) With regard to the assessment made by the IO regarding construction cost:
88. As stated above the IO in his final report and in his evidence has deposed that on the basis of Ex.P9 Report of PW.7, he has assessed the construction cost of the building in the said property as Rs.6,38,315/-. On the other hand it is the specific contention of the accused that the construction cost of the building existing in the said site No.4 is only Rs.3,30,000/-and the assessment made by IO as Rs.6,38,315/- is not correct. It is the specific contention and defence of the accused that the said site was purchased by his wife, after selling property bearing No.25 and 26 having corporation No.1:1, Guddadahally, Shakambarinagar 5th cross, Bengaluru. It is the case of the accused that on 01-04-1989 under the registered Sale Deed registered as document No.4/1989, the said property was purchased by his wife for Rs.60,000/-. It is also the contention of the accused that 87 Spl.C.C. No. 428/2017 after the death of her parents in the year 1987, she received pension amount and other service benefits and she has received Rs.2,52,000/- after selling the above said property No.25 and 26 infavour of Smt.Premaraj. It is the contention of the accused that only after selling said property No.25 and 26 his wife has purchased this asset item No.3.
89. Further the accused has contended that his wife has constructed a residential house in the said site by making investments out of sale proceeds of earlier site for Rs.2,52,000/- and also by utilizing the pension amount and other service benefits of her parents. It is also the contention of the accused that all these facts were mentioned in the Income Tax Returns filed by the wife of the accused for the assessment year 1997-98 and the AGO has also declared the value of this property as Rs.3,30,000/-in his asset and liability statement for the year 1998 and 1999 and hence the cost of construction of the building may be considered and valued at Rs.3,30,000/-only.
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90. In order to further substantiate his said contention the AGO himself examined as DW.1 and in his examination-in-chief at para No.13 and 14 he has reiterated the above said facts. On behalf of the accused Ex.D4 certified copy of the registered Sale Deed, dated 1.4.1989 is produced which reveals that the wife of the accused has purchased said item No.25 and 26 from Sri.S.M.Baskar. Ex.D5 the certified copy of the registered Sale Deed dated 15-6-1996 reveals that wife of the accused sold site property No.25 and 26 in favour of Smt.Premaraj wife of Sri.D.K.Vasantharao. As mentioned above Ex.P8 the certified copy of registered Sale Deed dated 10-10-2014 reveals that the wife of the accused entered into an Agreement of Sale with the vendor in respect of asset item No.3 on 11-09-1996. Admittedly on the basis of Ex.P8 dated 10-10-2014, the wife of the accused became owner of the said property only in the year 2014 and not earlier.
91. DW.1 in his cross-examination made by learned Public Prosecutor at para No's16 and 17 of his cross- 89
Spl.C.C. No. 428/2017 examination has deposed that his wife has purchased this item No.3 property and constructed the building after selling the property at Haleguddadahally and also by utilizing the pension and DCRG amount which she received after the death of her parents. He has admitted in his cross-examination that he has not produced any documents including commencement certificate, approved plan, completion certificate of building to show that in the year 1997 itself his wife has constructed the building in the said site. He has also admitted that in his APR filed for the year 1998-1999 he has not declared about the cost incurred for construction of the building in the said site. He has denied that valuation report filed by PW.7 as per Ex.P9 is proper and correct.
92. When the accused has contended that the cost of construction of the said building is only Rs.3,30,000/-, quite obviously the burden is upon the accused to prove the said aspect. However the accused has not produced any documents to show that in the year 1997 itself his 90 Spl.C.C. No. 428/2017 wife has constructed the building in the said site and he has not furnished any documents except Ex.D4 and D5 to show that his wife how mobalized the amount to purchase the property and to construct the building therein. It is an admitted fact that the parents of wife of accused were public servants and they died in the year 1987. However no details were furnished by the accused which reveals how much pension and DCRG amount received by the wife of the accused and her brother who was minor at that time after the death of her parents. It is true that in Ex.P71 ( File No.8 page No.263) the accused has declared that the value of building existing in this property is Rs.3,30,000/- and he has also mentioned the details of purchase of this property is out of his wife's parents pension and sale of old land by his wife. Except this no other particulars were mentioned and no documents were placed before the Court to show that the cost of construction of building is only Rs.3,30,000/-as contended. Further it is argued on behalf of the accused that all these facts were stated in the Income Tax returns filed by the wife of the accused. 91
Spl.C.C. No. 428/2017 It is an admitted fact that on behalf of wife of the accused Income Tax Returns were filed and in the said Income Tax Return, the same facts were stated. However it settled law that Income Tax Return filed by public servant should be presumed to be accurate unless specifically contested or proves false in a DA case. Admittedly in this case the accused has contended that his wife was running a beauty parlor and she was also doing the Interior Decoration business and in his cross- examination he has admitted that he has not produced any documents to substantiate the profession of his wife and even the accused has admitted that his wife not possessed any business account and she possessed only savings bank account. Therefore, mere reason that the accused has produced Ex.D.4 and D5 and furnished the Income Tax Returns of his wife along with the schedule is not sufficient to substantiate that his wife has mobilized the funds to purchase the said property as contended and the cost of construction was only Rs.3,30,000/- and therefore the contention of the accused is hereby Negativated.
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93. On the other hand it is the contention of the prosecution that the cost of construction of the building is Rs.6,38,315/- and in this regard the prosecution relies upon report of PW.7 which is produced as per Ex.P9. PW.1 the Investigating Officer in his examination-in-chief at para No.18 has deposed about securing Ex.P8 copy of the Sale deed and receipt of Ex.P-9 Valuation Report from PW7 and he has assessed the cost of construction of the building at Rs.6,38,315/-. Further PW7 Krishna Naik in his evidence has deposed that as per the instruction of his superior he visited the property in question and by considering SR Rates of the Registrar of Stamps he has assessed the value of the construction and assessed that the cost of construction incurred is Rs.6,38,315/-. In his cross-examination made by learned counsel for the accused nothing much contrary to the contents of the report is elicited.
94. During the course of arguments the learned counsel for accused relied upon the cross-examination made to PW.1 the Investigating Officer at para No.124 and 125 93 Spl.C.C. No. 428/2017 and submitted that the IO has admitted the suggestion put on behalf of the accused that the wife of the accused has sold the property as per Ex.D5 and received sale consideration of Rs.2,50,000/- and the IO has also admitted that Smt.Prabhavathi, has received pension amount and she has declared the fact of sale of her two sites in her ITR. It is also submitted on behalf of the accused that the IO has also admitted that in the APR filed by the accused for the assessment year 1998-1999 he has declared the value of the said building is Rs.3,30,000/- only and hence in-view of admission of IO the same has to be considered. In addition to it the learned counsel for accused also relied upon cross- examination made to PW7 at para No.31 and submitted that PW.7 is not a competent person to assess the value of the construction of the building and the PW7 has considered Sub-Registrar rates and not DSR rates and Ex.P9 Report is not valid. As mentioned above the said contentions of the accused is not tenable because PW.7 is admittedly authorized by his superior to assess the value of the said building and he is an expert and no 94 Spl.C.C. No. 428/2017 documents were furnished by the accused to show that PWD Rules dos not authorize a Junior Engineer to assess the value of the building. Apart from this the accused has not furnished any contra documents regarding the cost incurred for construction of the said building. Hence the Court is of the opinion that the contentions of the accused in this regard is not tenable and the contention of the prosecution which relies upon oral evidence of PW.1 and 7 and Ex.P9 Report is to be accepted.
95. On behalf of the prosecution it is also submitted that Ex.P8 reveals that though sale consideration of Rs.82,000/- was paid to the vendor on 11.09.1996, the registered sale deed was executed in favour of wife of the accused on 10-10-2014 only which means the wife of the accused became owner of the said property only after the check period. It is also submitted on behalf of the prosecution that the accused has not furnished any documents which reveals that how much amount of pension and DCRG was received by wife of the accused in 95 Spl.C.C. No. 428/2017 the year 1997 on-wards. Admittedly DW.1 in his cross- examination has admitted all these suggestions put to him and the accused has not placed any documents before the Court which reveals the details of the pension amount and other benefits received by wife of accused and her brother, prior to purchasing this item No.3. Further it is pertinent to note that the accused in this case has not chosen to examine his wife Smt.Prabhavathi for the reasons best known to him. To prove his contentions the accused ought to have examined his wife and he ought to have produced relevant documents in support of his said contentions. On the other hand the prosecution has produced the relevant documents and the contentions of the prosecution rests upon Ex.P9 valuation report and hence by relying upon the materials available on record the Court holds that prosecution has succeeded in proving the construction value of the building is Rs.6,38,315/-.
(c) Cost incurred in respect of Interior Decoration in the said building:
96. According to IO the wife of the accused has spent 96 Spl.C.C. No. 428/2017 amount for interior decoration of the said house and he has assessed the value of said Interior Design is approximately Rs.6,00,000/-. The said opinion of the IO rests upon Ex.P5 Valuation Report given by PW.7 Krishna Naik. However, the accused has denied in his evidence that Rs.6,00,000/- was spent by his wife for Interior Decoration of the said house and it is the specific contention of the accused that neither himself nor his wife undertaken any Interior Decoration of the building at the cost of Rs.6,00,000/- and in fact the furniture work was already made during the course of construction of the building and they have not undertaken any such work subsequently till the date of raid.
97. During the course of argument the learned counsel for accused has relied upon cross-examination of PW.1 the IO, at para No.126, wherein the IO has admitted that during his investigation he has not came across any evidence either ocular or documentary to know the fact that when was that interior decoration work done after construction of that building. Further the learned counsel 97 Spl.C.C. No. 428/2017 for accused also relied upon the cross-examination made to PW.7 at para-30 and 31 and submitted that the valuation of Interior decoration as made by PW.7 in Ex.P5 in respect of this property is without any basis. The said submission of learned counsel for accused and the suggestion put to PW.1 and PW.7 in this regard clearly reveals that the accused does not dispute that Interior Decoration was made in the said building. Further the accused has not furnished any document which reveals that the furniture etc., were made during the course of construction of building itself. Hence in the absence of any acceptable evidence in this regard the contention of the accused that no expenditure was incurred for interior design of the said house cannot be accepted.
98. On the other hand the prosecution relies upon the oral evidence of PW.1 the IO and P.W.7 Krishna Naik and Ex.P5 report which clearly reveals that the fixtures were existing in the said house and it further substantiates that said house was interiorly decorated. Now the report of PW.7 clearly reveals that the experts 98 Spl.C.C. No. 428/2017 have approximately valued the interior design found in the said house. On the contrary the accused has not placed any other valuation report which contradicts the recitals of said Ex.P5 valuation report. Hence on appreciation of evidence on record there is no ambiguity to hold the view that the prosecution has even succeeded in proving the fact that approximately an amount Rs.6,00,000/- is spent for interior design of the said house.
99. Taking into consideration all these aspects the Court is of the opinion that the accused in this case has miserably failed to prove his contention that the cost of construction of the building is Rs.3,30,000/-only and no amount is spent for interior design of the house. On the other hand Court holds that the prosecution has proved that the said site was purchased for Rs.82,000/- and in addition to it the building in the said property was constructed by spending Rs.6,38,315/- and further an amount of Rs.6,00,000/- was approximately spent for interior design of the house and in total the total value of 99 Spl.C.C. No. 428/2017 the said property is Rs.13,20,315/- and the IO has properly assessed the value of the property and the same needs to be accepted.
DISPUTED ASSET CODE No.AI....4:
100. The Investigating Officer in his final report has mentioned this Item No.4 as No.904, 1st main, ISSRO layout, Bengaluru, the building which stands in the name of Smt.Prabhavathi who is the wife of AGO. The IO has assessed the value of this building under 3 parts.
(a) The IO has considered the Sale consideration of Rs.80,00,000/- which is shown in the registered Sale Deed dated 17-04-2013 executed in favour of wife of AGO.
(b) The IO has assessed the cost of construction of second floor in the said building as Rs.10,45,600/-,
(c) IO has assessed the cost of Interior decoration is Rs.4.39,166/- and in total the IO has assessed the value of this building is Rs.94,84,166/-
(a) With regard to Sale consideration of Rs.80,00,000/- shown in Ex.P10 Registered Sale Deed: 100
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101. It is the case of the prosecution that the above said property was purchased in the name of Smt.Prabhavathi who is the wife of AGO, the same was purchased under registered Sale Deed dated 17-04-2013, the document which is registered as document No.592/2013-14 and it is pertaining to 30 x 40 feet site. It is also the case of prosecution that during the investigation it was found that the said property was purchased by wife of AGO after selling the immovable properties compromised in Sy.No.96/4, 96/5, 96/8 to an extent of 0.35 gunta each for Rs.50,00,000/- and also by availing loan of Rs.25,00,000/- from Hanumagiri Souharda Co-operative bank and also by selling 1 acre 20 gunta of Sy.No.198 situated at Toremallanayakanahalli, Nagamangala Taluk and these facts were stated by the accused in the schedule.
102. To further substantiate this fact the prosecution has examined PW.1 T.V.Manjunath, the IO who in his examination-in-chief has stated that he has considered 101 Spl.C.C. No. 428/2017 the sale consideration of Rs.80,00,000/- as mentioned in Ex.P10 Registered Sale Deed and regarding the cost of construction of the building he relied upon Ex.P11 Report given by PW.7 and regarding the cost of fixing furnitures he has assessed the same on the basis of the report of the expert as Rs.4,39,166/-. Regarding purchase value of this property as Rs.80,00,000/-, there is no dispute by the accused. DW1 Sri.Sreenivasamurthy in his examination-in-chief has clearly admitted that the purchase value of the said property is Rs.80,00,000/-. The prosecution has produced Ex.P10 copy of the sale deed dated 17.04.2013 which supports the contentions of the prosecution in this regard and accordingly considering the materials on record the Court holds that the IO has properly considered the purchase value of this property as Rs.80,00,000/- and the same is accepted.
103. The prosecution papers on record also reveals that on 09-02-2013 Smt.Prabhavathi entered into an Agreement of Sale with M/s Confident Projects ( India) Limited, regarding sale of 0.35 gunta in Sy.No.96/4, 102 Spl.C.C. No. 428/2017 96/5, 96/6 and 96/8 and page No.3 of the said agreement (Ex.P13 at page No.118) reveals that the wife of AGO has received Rs.50,00,000/- in advance and she has agreed to sell the said property for a sum of Rs.1,48,75,000/-. These documents on record reveals that the IO has considered the purchase value of the said property and he has only considered the value of construction of the building and the above said Agreement of Sale reveals that above said property was purchased by wife of AGO after selling the above mentioned immovable properties. Since there is no dispute regarding value of sale consideration as considered by the IO, the Court is of the opinion no more discussion is required in this regard.
(b) In respect of cost of construction of the building:
104. As mentioned above the IO in his final report has stated that the cost of construction of the building existing in the said property is Rs.10,45,600/- and to assess the same he relied upon the report of PW.7 which is submitted as Ex.P11. On the otherhand it is the 103 Spl.C.C. No. 428/2017 contention of the accused that there exist no second floor in the said building and the cost as assessed by IO is imaginary and baseless and not tenable. The accused has reiterated these contentions in his examination-in- chief at para No.17. However, in his cross-examination made by learned Public Prosecutor at para No.18 he has admitted that after the construction of the building in the above mentioned property, he has not got valued the property by any expert and he denied about existence of second floor in the said building and he denied that the valuation made as per Ex.P11 is proper and correct. Except denying the contents of Ex.P11 Report the accused has not furnished any documents to rebutt the valuation made by PW.7 as reported under Ex.P11. As mentioned above when it is the assertive contentions of the accused that the valuation report given by PW.7 Expert is not correct, the burden is upon him to prove the same by adducing required evidence.
105. During the course of arguments the learned counsel for accused has submitted that since the raid 104 Spl.C.C. No. 428/2017 was conducted on 28-5-2014, the accused not declared about the cost of construction of the said building in his APR filed for the subsequent year and he has also not filed APR for the year 2013-14 and it is also argued that wardrobe is part of main building and since there is no second floor existing the valuation report as submitted by PW.7 and as deposed by PW.1 and PW.7 cannot be considered. In this regard the learned counsel for accused relies upon the cross-examination made to PW.1 Manjunath at para No.131-132, wherein PW.1 has admitted that the total built up area of the 2nd floor of property No.904 of ISSRO Layout is shown as 77-74 Meters in Ex.P-11 and he has not verified what was the built up area of first floor of the building. PW.1 has also admitted that except Ex.P11 he has no documents to asses the value of construction of the said second floor in the said building.
106. The learned counsel for accused also relied upon the cross-examination made to PW.7 at para No.32 and 33 and submitted that PW.7 has admitted that he has 105 Spl.C.C. No. 428/2017 not prepared any sketch in respect of the said property and he has admitted about the provision for car parking infront of half portion and rare side of cellar there is an office room. PW.7 has denied that excluding cellar that building has only ground floor and first floor. PW.7 volunteers that that building has a ground and two floor excluding cellar. Further he deposed that wardrobes are not considered as main building. He denied that since ward robes, show-case are embedded to the walls of building they have to be considered as part of the building. Relying upon the said evidence of PW.1 and PW.7, the learned counsel for accused has again submitted that PW7 is not a competent person to assess the value of the said building and his report cannot be relied upon. As mentioned above the accused has not placed any material to substantiate his said contention and hence all the said contention made by the accused in this regard is held as untenable.
107. On the other-hand to further substantiate its case the prosecution has examined PW.1 T.V.Manjunath and 106 Spl.C.C. No. 428/2017 PW.7 Krishna Naik and also produced Ex.P.11 Valuation Report which clearly supports the contention of the prosecution that the cost of construction of the said building is Rs.10,45,600/- and in the report PW.7 has in detail mentioned the reason for arriving such conclusion. Further the said report also clearly reveals that there exist some furniture and other fixtures and PW.7 has assessed the value of the same as Rs.4,39,166/- and those facts were not seriously disputed by the accused. It is pertinent to note that it is the defence of the accused that in the same property the company run and owned by wife of AGO and son of the AGO was existing. Hence relying upon Ex.P11, the court holds that the Investigating Officer has properly assessed the construction value of the said building is Rs.10,45,000/- and hence same needs to be accepted.
(c) With regard to the cost of Furniture and Fixtures:
108. As mentioned above it is an undisputed fact that building existing in the above said property was consisting some furniture's and fixtures which include 107 Spl.C.C. No. 428/2017 aluminum partition, window, wardrobe, free standing table, mobile pad-stand unit, computer/meeting table, reception table etc., and PW.7 has assessed the value of these furniture and fixtures and concluded that the cost of the same is approximately Rs.4,39,166/-. On the other hand except denying Ex.P11 the valuation report, the accused has not produced any acceptable evidence in this regard. The oral evidence of PW.7 and the details mentioned in Ex.P11 Report clearly substantiate the case of the prosecution regarding the value of furniture and fixtures as assessed by IO is proper and correct and hence the Court holds that the same needs to be accepted.
Hence taking into consideration the above said discussions and the materials on record, the Court holds that the IO has properly valued the above said property as Rs.80,00,000/- + 10,45,000/- + 4,39,166/- in total Rs.94,84,166/- and hence the same is accepted. DISPUTED ASSET No.14 TO 16 [CODE No.AHA-I, CODE No.AHA-II, CODE No.AHA.III]
109. Asset No.14 refers about the value of household 108 Spl.C.C. No. 428/2017 articles found at house of the accused bearing No.22, Sarakki Main Road, J.P.Nagar, Bengaluru and asset Sl.No.15 Code No.AHA-2 is regarding the value of household articles found in the house of the accused situated at House No.904, ISSRO layout, Bengaluru and Asset item No.16, asset code AHA-3 is regarding the value of house and old articles found at 2nd floor, Maruthi Nilaya, V.B. Road, Vapasandra, Bengaluru. All these 3 disputed assets were taken together for common discussion since in respect of these 3 assets the prosecution and the defence have made common submission.
(a) Regarding Asset Item No.1 4 (AHAI) house hold articles.
110. The IO in his final report has stated that on 29-05-2014 when the house of the accused situated at No.22, 5th 'B' cross, Sarraki Main Road, J.P.Nagar 1st stage, Begaluru was searched he found the household articles which in detail mentioned in Ex.P20 mahazar and the value of the said household articles is 109 Spl.C.C. No. 428/2017 Rs.17,07,292/-. To substantiate the said aspect the prosecution has examined PW.1 T.V.Manjunath, who in his examination-in-chief at para No.38 has stated that on the basis of Ex.P20 mahazar he assessed the value of the household articles found in the said house as Rs.17,07,292/-. Further the prosecution relies upon the evidence of PW.3 Sri.S.Ramakrishna and PW.4 Sri.D.P.Ravikumar, who in their evidence deposed before the Court that they are signatories to Ex.P20 panchanama and in their presence the IO has inquired the wife of accused and obtained her signature in Ex.P20 panchanama.
111. However, the accused who is examined as DW.1 has specifically contended in his examination-in-chief at para No.19 that the valuation made by the IO regarding household articles found in the said house is false and baseless. According to the accused, the IO has mentioned the value of items without any basis and shown inflated value and it is the explanation of the accused that several movable properties have been 110 Spl.C.C. No. 428/2017 declared in his APR's and the IO without making further investigation has wrongly assessed the value of household articles without any basis. In his cross- examination made by learned Public Prosecutor DW.1 at para No.20 has admitted that in the APR's filed by him from the year 1998 till 2013 he has not stated about the details of household articles acquired by him and their value separately and also not stated the date of acquisition of each household articles. However, he has stated that in some of the APR's he has declared about the acquisition of some of the house hold articles. He denied that as per the information given by his wife and children IO has mentioned the value of household articles in Ex.P20. He has denied that without any basis he is falsely contending that the total value of the household articles is Rs.6,00,000/-.
112. In respect of the household articles found in the above said house prosecution relies upon Ex.P20 mahazer wherein IO in detail has mentioned the household articles found in the said house. It is not the 111 Spl.C.C. No. 428/2017 case of the accused that the said household articles were not belonged to him. However it is the contention of the accused that some of the household articles are ancestral and some of the household articles were received by him and his family members by way of gift and the IO has not bifurcated those household articles. It is the submission of learned Public Prosecutor that even if the APR's of the accused is taken into consideration that does not disclose the details regarding the household articles, its value and when exactly the AGO has acquired them and reported to his higher authorities in this regard. Hence, it is the contentions of the prosecution that the minimum value as made by the IO is proper and correct and the same needs to be accepted.
(b) With regard to household articles found as per asset Item No.15 (Asset code No.AHA.2) found at the house-of the accused situated at No.904, 12th main road, ISSRO Layout, Bengaluru.
113. As mentioned above the IO in his final report has stated that the value of the household articles as mentioned in Ex.P21 panchanama is Rs.4,19,645/-. To substantiate this aspect the prosecution relies upon the 112 Spl.C.C. No. 428/2017 evidence of PW.1 T.V.Manjunath who in his examination- in-chief at para No.39 has stated that on the basis of Ex.P21 mahazar he has determined the value of said household articles. Further the prosecution relies upon the evidence of PW.5 Smt.B.R.Sarita, who is signatory to Ex.P21, who deposed that in her presence Ex.P21 mahazar was drawn, wherein the list of the household articles found in the above mentioned house was mentioned and she has also stated the manner in which the IO has enquired the value of household articles and noted it down. However the accused in his examination- in-chief has contended that the IO has not mentioned the value of items and the basis for assessing of each house hold articles and his APR's are very much clear and without considering his APR's IO has wrongly mentioned the total value of the household articles as Rs.4,19,645/- and according to him the total value of household articles cannot be more than Rs.1,50,000/-. Admittedly DW.1 in his cross-examination at para No.21 has admitted that Ex.P21 was signed by his son and he denied that as per the information given by his son the IO has mentioned 113 Spl.C.C. No. 428/2017 the value of each household articles as listed in Ex.P21.
(c) Asset item No.16(Asset code No.AHA...3) with regard to house articles found at Maruthi NIlaya, 2nd cross, Vapasandra, Chikkaballapura.
114. IO in his final report has stated that he has assessed the value of household articles found in the said house of accused is approximately Rs.3,32,800/-. To substantiate this aspect the prosecution relies upon the evidence of PW.1 Sri.T.V.Manjunath, who in his examination-in-chief at para No.40 has stated that on the basis of Ex.P22 mahazar he assessed the value of the household articles as Rs.3,32,800/-. Further in this regard the prosecution relies upon the evidence of PW.6 Smt.Kalavathi who in her examination-in-chief has deposed that in her presence the IO noted the list of household articles and prepared Ex.P22 panchanama and after inquiring the witnesses and accused, he has assessed the value of household articles. However the accused who is examined as DW.1 in his examination-in- chief at para No.23 and 24 disputed the valuation made by the IO in this regard and contended that the value of 114 Spl.C.C. No. 428/2017 the said item cannot be more than Rs.75,000/- and according to him since he was staying in the said house as a tenant and he was staying alone nothing was needed and necessitated to hold costly items, movables other than the items which needed for daily use and hence he requested to consider the value of the said household articles as Rs.75,000/-only.
115. The learned counsel for the accused has relied upon the cross-examination made to PW.1, PW.3, PW15 regarding these item No.14 to 16 and submitted that in his schedule he has furnished the details regarding the articles which were received by him as Gift and which are the articles acquired by him through his ancestors and IO has not enquired in this regard and not conducted any investigation. He has also submitted that the IO has simply inflated the value of household articles only to file charge sheet against him. Non enquiry by IO regarding household articles as mentioned in the schedule filed by the accused creates doubt and some of the articles were received as a gift during celebration of birth day, 115 Spl.C.C. No. 428/2017 anniversary and other family functions, family gathering. It is the submission of learned counsel for accused that in respect of asset item No.14 the value of household articles can be considered as Rs.6,00,000/- and so for as item No.15 is concerned the value of household articles can be considered as Rs.1,50,000/- and so far as item No.16 is concerned the value of household article may be considered as Rs.75,000/- only.
116. On the other-hand the learned public prosecutor by relying upon the available evidence on record has submitted that the IO has approximately valued the household articles in respect of item No.14 to 16 and AGO and his wife and their children are the signatories to Ex.P20 to P22 and it is the burden upon the accused to substantiate that the said household articles found in the above said house were valuing not more than Rs.6,00,000/-, 1,50,000/-, and Rs.75,000/- respectively as contended. The learned public prosecutor has further submitted that the seized documents on record clearly reveals that in the name of daughter of the accused two Titan watches were purchased on 02-06-2013 and 116 Spl.C.C. No. 428/2017 admittedly as on that day the daughter of the accused was not working and even though several seized documents reveals exact value of the some household articles the IO has considered minimum value of the household articles after ascertaining the same with the AGO, his wife and children and witnesses present and hence the valuation made by the IO may be considered. Admittedly it is the contention of the accused that in respect of the household articles found at the rented house at Chikkaballapura he had minium household articles needed for his daily activities. The accused has contended that the other articles found in the said house were not belonged to him. To substantiate the said contentions the accused ought to have examined the owner of the said house and it is surprised to know that the accused has not made any attempts to examine the owner of the said house and also he has not produced any documents which evidences that he was residing in the said house as a tenant.
117
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117. Further APR's furnished by the accused clearly reveals that the accused has declared some of the household articles possessed and acquired by him. Admittedly building description and value of each household articles were not found in the APR's. It is quite common that one cannot expect to furnish each and every minute details regarding household articles in the assets and liability statement. However when it is the contention of the accused that he has declared each and every household articles in the APR, it is burden upon the accused to prove the same by adducing required oral and documentary evidence. Apart from this it is relevant to note that during the check period neither the son nor the daughter of the accused were working. Hence a question arises how prior to 2013 the children of the accused got income and it is argued by the learned Public Prosecutor that anything purchased during the check period in their name is to be considered as purchased in the name of accused and since the son and daughter of accused received income only after their job, all these items to be considered as purchased by the accused by his 118 Spl.C.C. No. 428/2017 unexplained source of income.
118. During the course of arguments the learned counsel for the accused has relied upon the decision of Hon'ble Bombay High Court reported in 2017 SCC Online Bom.8166, (Bhimraj Sagar Vs CBI, Anti Corruption Branch, Surekha Building, Near Doordarshan Kendra, Altinho, Panaji, Goa and another). In the said decision the Hon'ble Bombay High Court at para No.23 opined that "A Government servant is to satisfactorily account for the disproportionate assets and not to prove his claim with mathematical exactitude beyond all possibility of doubt ". At para-31 it is also held that on preponderance of probabilities the accused can establish his defence. The observation made by Hon'ble High Court of Bombay at Goa and the principles laid down is not much helpful to the accused in this case since he has failed to prove his contentions. Further the learned counsel for accused has relied upon the decision of Hon'ble Apex Court in Criminal Appeal No.5009/2024 Nirankar Nath Pandey Vs. State of U.P. and others. In 119 Spl.C.C. No. 428/2017 the said decision the Hon'ble Apex Court at para No.10 has held that "Further, we have considered that the check period is from the year 1996 to 2020, which is almost twenty five years. It must be taken into account that over such a long period of time, there is inflation and a natural progression in the changing economy that affects the value of assets such as property. This can understandably lead to discrepancies in declaring the value of assets over the years. Therefore, there should be a more dynamic approach while considering an individual's income and assets over the span of two decades".
119. The above said decisions of Hon'ble Apex Court clearly reveals that while considering the disproportionate asset in a case of this nature, the Court should adopt dynamic approach. Here in this case, the materials on record reveals that IO has considered the minimum price of each household articles as mentioned in Ex.P20 to P22. As mentioned above when the accused has specifically contended that the above said household 120 Spl.C.C. No. 428/2017 articles are not valuing more than Rs.6,00,000/-, 1,50,000/- and Rs.75,000/- and some of the household articles were received by him as gift from his ancestors, the burden is upon him to substantiate the same by adducing acceptable and relevant evidence. Since the accused has failed to substantiate these aspect, the court is of the opinion that all such contention of the accused is untenable. On the other-hand taking into consideration the oral and documentary evidence on record including the evidence of PW.1, PW.3 to 5, PW.15 and DW.1 and Ex.P20 to P22, there is no ambiguity to hold the view that IO has properly assessed the value of household articles found in the above said 3 houses which were specified as item No.14 to 15 respectively. Hence, the court holds that the value of household articles as mentioned at item No.14 is Rs.17,07,292/- and the value of household articles specified as item No.15 is Rs.4,19,645/- and vale of household articles specified as item No.16 is Rs.3,32,800/-. Therefore the valuation made by the IO in this regard needs to be accepted.
121
Spl.C.C. No. 428/2017 DISPUTED ASSET ITEM No.20 CODE No.ASA- I:
120. The Investigating Officer in the final report has mentioned this Item No.20 as the silver articles having value of Rs.2,20,294/- and according to the IO the said silver articles were found on 29-05-2014 when the raid was conducted to the house of accused, i.e., No.22, 5th 'B' Cross, Sarakki Main Road, J.P.Nagar 1st stage. Bengaluru. The prosecution relies upon Ex.P.20 mahazar in this regard. To substantiate the said aspect the prosecution relies upon the evidence of PW.3 Sri.Ramakrishna and PW.4 Sri.D.P.Ravikumar who are witnesses to Ex.P20 Panchanama and evidence of PW.1 T.V.Manjunath the IO and PW.17 Sri.Prashanth.
121. On the other-hand it is the specific contention of the accused that the valuation made by the IO regarding value of said silver articles at Rs.2,20,294/- is not correct and IO has valued the silver by considering the value of silver as on the date of raid which is wrong and according to accused the said silver articles are ancestral silver articles and hence the value of the same may be taken as 122 Spl.C.C. No. 428/2017 nil.
122. The materials on record clearly reveals that on 29-05-2014 the raid was conducted to the above said house of the AGO and admittedly 16.12 Kg of silver articles were found on the said day and the IO has summoned PW.17 Sri.Prashanth who is a goldsmith and the evidence of PW.17 reveals that he has weighed the silver articles and opined its value is approximately Rs.3,95,000/-. PW.17 in his evidence has clearly stated these aspects and in his cross-examination made by the learned counsel for accused nothing contrary to the case of prosecution is elicited. However it is elicited through PW.17 by learned counsel for accused that Ex.P20 is not prepared in his presence and also Police have not obtained his signature on Ex.P.20. PW.17 has denied that he has not weighed any silver articles or golden articles on the said day. However the evidence of PW.15 Puttaswamy H.P. reveals that on the said day, the price of movables mentioned in Ex.P20 were fixed after he held discussion with wife of AGO and other family members and panch witnesses. The materials on record reveals 123 Spl.C.C. No. 428/2017 that the IO has considered only 9.12kg of silver articles and its value and he has not considered 7 kg of silver articles for the reason that 7 kg of silver is declared by the AGO in his APR filed in the year 2000-2001. Further the value of the silver articles per kg is considered at Rs.24,500/-.
123. As mentioned above the accused has contended that he has declared about the acquisition of said silver articles in his APR's and said silver articles are ancestral articles and hence no value can be fixed for the same. It is also the contention of the accused that the IO fixed the value of silver articles as on the date of conducting raid and not as on the date of original acquisition of the same by the accused. However in the APRs filed from the year 1998 till 2000, the accused has not declared anything about acquisition of silver articles by him from his ancestors. DW.1 himself has admitted that Ex.P116 Assessment filed for the year 2000-2001 reveals that for the first time he has declared that he has acquired 7 kg of silver articles from his ancestors. Admittedly even the 124 Spl.C.C. No. 428/2017 said APR is also silent when exactly the accused has acquired the said silver articles and the details regarding design of each silver articles and exact year and date of acquisition of the said articles etc., were not mentioned. When there is no particulars declared in APR in this regard, the contentions of the accused that the value of the silver articles of the original date of acquisition is not considered by IO is not a tenable contention. The evidence of PW.1, PW.3, PW.4, PW.15 and PW.17 clearly supports the case of the prosecution, the manner in which the value of said silver articles were assessed.
124. Even though the IO has considered only 9.12 kg silver articles and its value as Rs.2,20,794/-, the learned Public Prosecutor has submitted that the IO without any basis deducted value of 7 kg Silver articles only for the reason that the accused declared the same in his APR filed for the assessment year 2000-2001, which is not correct. According to the learned Public Prosecutor since the AGO not clearly stated the original date of acquisition of said 7 Kg silver articles, the total value of silver articles 125 Spl.C.C. No. 428/2017 for 16.12 Kg which is equal to Rs, 3,95,000/- has to be considered and the value fixed by the IO for 9.12 kg of the silver article of Rs.2,20,794/- is to be discarded.
125. It is an admitted fact that, the accused has declared about acquisition of said 7 Kg Silver Articles from his ancestors, for the first time in his APR filed for the year 2000-2001, which is evident from Ex.P116. Now there is no dispute that the IO on the basis of approximate value fixed by PW.17 considered price of 1 Kg of silver at Rs.24,500/-. Now the only point remains for consideration is whether the approximate value of the silver articles for 16.12 Kg has to be considered or approximate value of silver articles for 9.12 kg has to be considered?.
126. It is an admitted fact that the accused has declared about acquisition of 7 Kg of silver articles for the first time in his APR filed for the year 2000-2001. Admittedly it is not reported prior to 2000-2001 which is clearly admitted by DW.1 in his cross-examination. However the 126 Spl.C.C. No. 428/2017 court is of the opinion that the submission of learned Public Prosecutor that the value of the entire 16.12Kg of silver articles to be considered is not a tenable contention. It is because, it is pertinent to note that prior to amendment of Section 13(1) of Prevention of Corruption Act, 1988, the term known source of income means income received from any lawful source and such receipt has been intimated in accordance with the provision of any law, rules or orders for the time being applicable to a public servant. Undisputedly subsequent to amendment of Section 13(1) of P.C.Act 1988, the term known source of income, as per explanation means income received from any lawful source. Admittedly, this case is registered in the year 2014 and the allegation made against the accused is pertaining to the check period, which is prior to the aforesaid amendment, which came into effect from 26-07-2018. Therefore as mentioned above, as per unamended explanation of known source of income, if the AGO intimates the concerned authority regarding receipt of income from any lawful source, it is sufficient. In this case also, at an 127 Spl.C.C. No. 428/2017 undisputed point of time the accused has declared in his APR's that he has acquired some golden and silver articles from his ancestors. Therefore, the Court is of the opinion that the declaration made by accused in his APR filed for the year 2000-2001 that he has acquired 7 kg of silver articles is to be accepted and court opines that the calculation made by IO after deducting 7 kg of silver articles from total 16.12 kg of silver articles is proper and correct and the value of said silver articles for 9.12 Kg has to be accepted for Rs.2,20,794/- only. Hence the court holds that the valuation made by IO in this regard is proper and correct.
DISPUTED ASSET ITEM No.21 CODE No.ASA- 2:
127. The IO in his final report has mentioned this asset item No.21 as the value of 254 gram silver articles at Rs.7,800/- and according to the IO the said silver articles were found when the raid was conducted to the house of the accused on 29-5-2014 at 2nd floor Maruthi Nilaya, E.V. Road, Vapasandra, Chikkaballapur. It is also the case of the prosecution that during the said search 128 Spl.C.C. No. 428/2017 Ex.P22 panchanama was drawn and during drawing said panchanama PW6 Kalavathi was present and the silver articles were weighed by PW.16 Sri.Kumar.
128. To substantiate this aspect the prosecution relies upon the evidence of PW.1 Sri.T.V.Manjunath who in his examination-in-chief has clearly deposed that when the IO conducted raid to the said house they found some silver articles and its value is fixed at Rs.7,800/-on the basis of valuation made by PW.16. PW.16 Kumar in his examination-in-chief has supported the case of the prosecution by deposing that in his presence the IO found silver articles approximately weighing 260 gram and at that time value of silver articles per gram was Rs.30/-. Hence he has fixed approximate value of said 260 gram silver articles at Rs.7,800/-. In the cross- examination made by the learned counsel for accused to PW.16 nothing favourable to the case of the accused is elicited.
129. On the otherhand it is the specific contention of the 129 Spl.C.C. No. 428/2017 accused that the IO has valued the said silver articles found in the above said house by considering the value of silver as on the date of raid and it is wrong and infact the said silver articles were acquired by him through his ancestors. To further substantiate his said contention the accused in his examination-in-chief at para No.27 has reiterated these contentions. However in his cross- examination made by learned Public Prosecutor he has admitted that regarding acquisition of said silver articles which were mentioned in Ex.P22 Panchanama, he has not declared the same in his APR's. He has denied that the value of the said silver articles found at Vapasandra house was fixed as per information given by him only. He has admitted that he has put his signature to Ex.P22 mahazar as per Ex.P22 (c).
130. On careful perusal of the aforesaid oral and documentary evidence on record, it clearly reveals that regarding acquisition of said silver articles through his ancestors the accused has not made any specific declaration in his APR's. As rightly pointed out by 130 Spl.C.C. No. 428/2017 learned Public Prosecutor, the date of acquisition of silver article by him and description and design and weight of each silver articles were not at all stated by AGO in his APR's filed subsequent to 2000-2001. The materials on record reveals that the IO on the basis of valuation made by PW.16 and on consultation and discussion with the accused and witnesses has fixed approximate minimum value of silver articles per gram. Hence the court is of the opinion that the valuation made by IO regarding the said silver articles is proper and correct and hence the calculation made by IO that the value of silver articles found in the above said house at Rs.7,800/- is proper and correct and the same is need to be accepted. DISPUTED ASSET ITEM No.25, 26, 28 To 34:
131. The IO in his final report has mentioned Item No.25 (Asset code No.ABA-I ) as Rs.1,49,144/-, the balance amount in the ICICI Bank, Chamarajpet Branch, Bengaluru of AGO and and Item No.26 ( Asset code ABA..2) Rs.915/- the balance amount in ICICI Bank, Chamarajpet, Bengaluru stands in the name of AGO, 131 Spl.C.C. No. 428/2017 Item No.28 (Asset code No.ABA..4) Rs.8,71,432/- the amount in the S.B.Account of AGO at SBM Mangalavarpet Branch, Channapatna. Item No.29 ( Asset code No.ABA-5) Rs.1,00,362/-amount in S.B.Account of wife of AGO at ICICI Bank Limited, Padmanabhanagar Branch, Bengaluru, Item No.30 ( Asset code No.ABA..6) Rs.318/- amount in S.B.Account of son of accused by name S.Sandeep at Vijaya Bank, Dayanandasagar college branch, Kumaraswamy layout, Bengaluru, Item No.31 ( Asset ABA...7) Rs.2,16,852/-amount in S.B.Account of S.Sandeep S/o AGO at ICICI Bank 7th block, Jayanagar, Bengaluru and Item No.32 (Asset No.ABA..8) Rs.2,27,903/- S.B.Account of S.Pooja daugher of AGO, at ICICI Bank 7th block, Jayanagar and Item No.33 ( Asset No.ABA..9) Rs.8,30,159/- in the S.B. Account of S.Pooja who is daughter of AGO the account held at ICICI Bank, Chamarajapet branch and item No.34 ( Asset item No.10) Rs.242/- amount in S.B.Account of S.Pooja who is the daughter of AGO, the account held at Vijaya Bank, Dayanandasagar Branch, Bengaluru.
132
Spl.C.C. No. 428/2017
132. The accused admits about possessing of the aforesaid Saving Bank accounts held by him and his wife and children. It is also an admitted fact that in respect of aforesaid accounts, prosecution has furnished the account statement which clearly reveals that the above said savings bank accounts stands in the name of AGO, his wife and his children. In order to substantiate its case, the prosecution has examined PW.1 Sri.T.V.Manjunath, the IO who in his examination-in- chief has deposed that Ex.P24 is the statement pertaining to the S.B.Account stands in the name of accused at ICICI Bank, Chamarajapet, Bangalore wherein the bank balance is shown as Rs.1,49,142/-, further the prosecution relies upon Ex.P25 the Statement of account pertaining to S.B. account of ICICI bank, Chamarajapet, Bengaluru which stands in the name of accused and as on the date of check period the bank balance amount of Rs.915/- found therein. Further Ex.P26 the statement of account pertaining to S.B.Account at SBM, Magalavarpate which stands in the name of accused and it reveals as on the date of check period the balance 133 Spl.C.C. No. 428/2017 found Rs.8,71,432/-.
133. Further the Ex.P27 the details of statement of account pertaining to S.B. Account at ICICI bank Padmanabhanagar, Bengaluru it stands in the name of Smt.Prabhavathi, who is the wife of AGO shows that there is bank balance of Rs.1,00,362/-. Further Ex.P28 statement of account pertaining to Vijaya bank, Dayanandasagar college branch, Kumaraswamy layout which stands in the name of Sandeep son of AGO reveals there is bank balance of Rs.318/-. Further Ex.P29 reveals that it is the statement of account pertaining to SB Account at ICICI Bank Jayangar, Bangalore stands in the name of a S.Sandeep S/o accused wherein the bank balance shown as Rs.2,16,852/-.
134. Further Ex.P30 the statement of account pertaining to S.B.Account at ICICI Bank, Jayanagar, Bengaluru which stands in the name of Miss.Pooja daughter of AGO reveals that there is bank balance of Rs.23,29,903/-, further Ex.P31 the statement of account 134 Spl.C.C. No. 428/2017 pertaining to S.B.Account at ICICI Bank, Chamarajanagar Branch which stands in the name of above said Miss.Pooja reveals that there is bank balance of Rs.8,30,159/- and further Ex.P32 reveals that said document is pertaining to S.B.Account at Vijaya Bank, Dayanandasagar college Branch, Bengaluru stands in the name of S.Pooja wherein the bank balance of Rs.242/- found.
135. As stated above possessing about the above said Savings Bank account by himself and his family members is not at all disputed by the AGO. However, it is the contention of the accused that outstanding balance found in the said savings account is only income and that cannot be considered as asset. It is submitted on behalf of the accused that whatever the amount appearing in said savings bank account shows balance amount which is an investment and not an expenditure and the said balance amount is got them from legal source and unless they invest something out of their account, that should be treated as asset or expenditure else it amount to deflation of their income by considering balance found in 135 Spl.C.C. No. 428/2017 their account movable asset. To further substantiate the said contention the learned counsel for accused relies upon cross-examination made to PW.1 Investigating Officer at para No.138 to 142. When it is specifically suggested to PW.1 that he has wrongly considered the above said outstanding balance amount found in the aforesaid savings account as asset, the witness has denied the said suggestion. Hence it is submitted on behalf of the accused that the above said outstanding balance amount cannot be considered as asset.
136. However, the learned Public Prosecutor during the course of her arguments has submitted that until salary is credited to the account of a public servant it is income. After salary is credited to the account it becomes a liquid asset. Further the learned Public Prosecutor has submitted that the above said Ex.P24 to 32 clearly reveals that the AGO had 4 savings bank accounts and his wife had one savings bank account and his son possessed the two savings bank accounts and his daughter possessed three savings bank accounts which is 136 Spl.C.C. No. 428/2017 not declared by the AGO in his APR's. It is also submitted that till 2010 the accused has not mentioned and declared about his savings bank account details and for the first time in the year 2010 he has declared about possessing bank account at Chamarajapet branch. It is further argued by the learned Public Prosecutor that Ex.P27 reveals that the said savings bank account was opened on 25-11-2013 in the name of wife of AGO and Rs.1,00,000/- credited to the said account on the date of opening of the account when wife of the accused was not having any source of income, how said amount was deposited in the account of wife of AGO is not all explained by the accused and said amount is nothing but an amount acquired by the AGO by misusing his official position. Further the learned Public Prosecutor has submitted that admittedly during the check period the son and daughter of AGO are not working and said aspect is clearly admitted by accused and also by his son and daughter who were examined as DW.2 and DW.3 respectively and whatever the amount found in the SB Account of wife of AGO and his children are to be 137 Spl.C.C. No. 428/2017 considered as assets and the said amount cannot be considered as individual income of wife and children of AGO.
137. On the other-hand the learned counsel for accused has submitted that the said amount found in the S.B. Account of his wife and children are to be considered as individual income of his wife, who was running a beauty parlor and interior decoration business and whereas his son during his college days was working as freelancer and whereas his daughter prior to joining to Infosys, during her school and college days itself she was teaching Bharatanatyam to the students and hence they got independent income. With regard to the said contentions of the accused a detail discussion will be made, during the discussion pertaining to income and left out income. Now the only point remains for consideration is whether aforesaid amount found in the aforesaid S.B.Account of the accused and his wife and son and daughter can be considered as an asset or not?
138. It is settled position of law that "Assets" refer to the 138 Spl.C.C. No. 428/2017 total value of economic resources a person or their family holds including tangible items like property, vehicles and jewellry as well in intangible asset like bank account, investment, stock, mutual funds, debentures etc. The term "Assets" has a vide connotation, encompassing every conceivable thing of economic value that is held by the individual or his family. The salary, one is earning, is the income, but the amount of money one has in his savings account is an asset. The income is what one earns from his job, while the asset is the money one saving in the account. One's saving account balance is a financial asset because it represent a claim making that one has available to use. One person is reporting his salary as income, when he files his taxes. However once savings account balance is an asset of his personal balance sheet, it is the money which he has already availed for spending or emergencies. The amount deposited in savings account through out the year cannot be considered as income of the person.
139. Taking into consideration the above settled position 139 Spl.C.C. No. 428/2017 of law regarding the assets, the court is of the opinion that the contentions made by the accused that the above said amount found in the savings bank account cannot be considered as an asset is not an acceptable and tenable contentions. On the other-hand by taking into consideration above said settled position of law and for the reasons discussed above this court is of the view that the prosecution has succeeded in proving the fact that the above said amount as found in the above mentioned savings bank account of the accused and his family members is to be considered as asset and the court holds that the calculation made by the IO in respect of the afore mentioned disputed items is proper and correct and the same needs to be accepted.
140. On over all consideration of the materials available on record pertaining to the above said assets and for the discussion made as above the court is of the opinion that the calculation made the IO that during the check period the accused and his family members possessed asset of Rs.2,54,11,308.25 is proper and correct and the same 140 Spl.C.C. No. 428/2017 needs to be accepted.
With regard to Expenditure of the accused:
141. The IO in his final report in the coloum of list of expenditure of AGO and his family members has mentioned total 65 items, which were stated to be acquired by the AGO and his family members during the check period. Admittedly, the accused in this case has disputed the value in respect of expenditure mentioned at Sl.No.8, 11, 13, 19, 42, 44, 53, 54, 57, 60, 61, 63 and 65 and not disputed the remaining expenditure.
The list of expenditure is as follows:
Sl. Expenditure Description of Value as per IO No. Code Expenditure
1. EASR-1 Stamp duty and Registration Rs.12,490-00 charges of site No.22 and 22/1, 5th 'B' Cross, Sarakki main road J.P.Nagar 1st stage, Bengaluru.
2. EASR-2 Stamp duty and registration Rs.5,28,460-00 charges paid in respect of site No.904, 1st main road, ISSRO layout, Bengaluru by Smt.Prabhavathi wife of AGO
3. EASR-3 Stamp Duty and Registration Rs.1,55,600/-
charges paid in-respect of immovable property of 8 gunta each in Sy.No.96/4 and Sy.No.96/5 at Billapura village, Sarjapur hobli, Anekal Tq by wife of AGO Smt.Prabhavathi 141 Spl.C.C. No. 428/2017
4. EASR-4 Stamp duty and registration Rs.46,720-00 charges paid by Smt.Prabhavathi wife of AGO in respect of purchase of 8 gunta in Sy.No.96/6 of Billapura village, Sarjapura hobli, Anekal Tq
5. EASR-5 Stamp duty and Registration Rs.950-00 Charges paid by Smt.Prabhavathi W/o AGO for purchase of 11 gunta in Sy.No.96/8 of Billapura village, Sarjapura hobli, Anekal Taluk.
6. EASR-6 Stamp Duty and Registration Rs.700-00 Charges paid inrespect of purchase of 13 gunta in Sy.115/3 of Billapura village, Sarjapura hobli, by Smt.Prabhavathi
7. EASR-7 Stamp duty and registration Rs.4,520-00 charges paid by Smt.Prabhavathi in respect of purchase of Sy.No.23 Gaddige road, Marattikyathanahally, Bogadi, Mysore
8. EASR-8 Stamp duty and registration Rs.2,31,860-00 charges paid by Smt.Prabhavathi inrespect of purchase of site No.4, Sarakki main road, Shakambarinagar, J.P.Nagar 1st stage, Bengaluru
9. EAT-I Tax paid by AGO in respect of site Rs.1,79,602-00 No.22 and 22/1, Sarakki Main Road, J.P.Nagar, Bangalure
10. EAT-2 Tax paid by Smt.Prabhavathi in Rs.1,17,546-00 respect of house No.4, Sarakki main road, Shakambarinagar, JP Nagar 1st stage, Bengaluru 11, EAA-1 Amount spent for Interior Rs.4,39,166-00 Decoration of house at No.904, 12th main, Issro Layout, Bengauru.
12. EEC-1 Amount spent to obtain Rs.1,88,167-00 elec436tricity connection to the building at No.22 and 22/1, 5th 'B' cross, Sarakki main road, JP Nagar, 142 Spl.C.C. No. 428/2017 Bengaluru in the name of AGO.
13. EEC.-2 Amount spent by AGO to obtain Rs.13,895-00 electricity connection to bu436ilding situated in Sy.No.23, Gaddige road, Marattikyathanahally, Mysore
14. EEC-3 Amount spent by Smt.Prabhavathi Rs.4,185-00 to obtain electricity connection to the building situated at No.904, 12th main, Issro layout, Bengaluru.
15. EWC-I Amount paid by AGO to obtain Rs.95,203-00 drainage connection and monthly water tax in respect of the building situated at No.22, 5th 'B' cross, Sarakki main road, JP Nagar 1st stage, Bengaluru.
16. EWC-2 Amount paid by Smt.Prabhavathi Rs.2,479-00 for obtaining drainage connection and monthly water tax pertaining to house situated at 904, 12th main road, Issro Layout, Bengaluru
17. EAI-1 Payment made to purchase Toyota Rs.8,92,352-00 Qualis vehicle bearing Regn.No.KA.05.MN.222 by Smt.Prabhavathi
18. EBL-1 Payment made by AGO for Bank Rs.4,902-00 Locker
19. ERB-1 Repayment of Car loan made by Rs.4,03,451-00 Smt.Prabhavathi to ICICI Bank, Chamarajapet Branch, Bengaluru.
20. ERB-2 Repayment of car loan made by Rs.7,79,472-00 Smt.Prabhavathi to ICICI Bank, Chamarajpet branch, Benngaluru
21. ERB-3 Repayment of loan by AGO and Rs.2,77,467-00 his wife to LIC Housing Finance Limited, Bengaluru
22. ERB-4 Repayment of loan by AGO to Rs.5,04,822-00 Hanumagiri Sowharda Credit Cooperative Niyamitha, 143 Spl.C.C. No. 428/2017 Nagarabhavi, Bengaluru-72 23, ERB-5 Repayment of car loan by Rs.3,43,200-00 Smt.Prabhavathi to ICICI Bank, Chamarajpet, Bengaluru.
24. ERP-I Repayment of hand loan by Rs.17,00,000-00 Smt.Prabhavathi to Sri.B.R.Tirumalai
25. ERP-2 Repayment of hand loan by Rs.2,02,500-00 Smt.Prabhavathi to Sri.Premchand Hahuja.
26. ERR Rent paid by AGO to the house at Rs.270-00 Gonkar building behind behind Sardhar Patel play ground, Belagam
27. ERR Rent paid by AGO to the house at Rs.31,200-00 Kasturi Nivasa, Saptha, near Dharwad University, Dharwad
28. ERR Rent paid by AGO to the house Rs.5000-00 situated at Bangera house, Ujire, Belthangadi 29 ERR Rent paid by AGO to the house Rs.14,000-00 No.1699/22 Siddaveerappa layout, 5th cross, Davanagere
30. ERR Rent paid by AGO to the house at Rs.1,06,000-00 Vaderahally, Bengaluru.
31. ERR Rent paid by AGO to the house at Rs.28,000-00 Maruthi Nilaya, 2nd floor, Vapasandra, Chikkaballapur
32. ELIC-1 LIC premium paid by AGO in Rs.1,74,857-00 respect of LIC Policy No.360916169
33. ELIC-2 Premium paid inrespect of LIC Rs.1,50,000-00 Policy No.616129261, 616129128, 616129199 held by Kum.Pooja, daughter of accused
34. ELIC-3 Premium paid inrespect of LIC Rs.91,974-00 Policy No.360046014 in the name of Kum.Pooja daughter of AGO
35. ELIC-4 Premium paid by AGO in respect Rs.11,760-00 of LIC Policy No.48638831 144 Spl.C.C. No. 428/2017
36. ELIC-5 Premium paid by AGO in respect -00- of LIC policy No.610309563
37. ELIC-6 Premium paid by Smt.Prabhavathi Rs.70,000/-
wife of AGO in respect of LIC Policy No.616325641
38. ELIC-7 Premium paid by AGO in respect -00- of LIC Policy No.48628371
39. ELIC-8 Premium paid by AGO in respect -Nil-
of LIC Policy No.610309717
40. EI Insurance amount paid in respect 25,835-00 of vehicle bearing No.KA-05-MG-
8373 stands in the name of Sandeep S/o Srinivasamurthy
41. EMM-I Amount spent for Rs.3,691-00 maintenance/repair of Qualies Car bearing Regn.No.KA-05-MN-222 stands in the name of Smt.Prabhavathi
42. (a) EMF-I Fuel cost in respect of the vehicle Rs.2,45,440-00 No.KA-05-MH-394
(b) EMM-2 Amount spent for maintenance and Rs.21,800-00 repair of KA-05-MH-394 43 (a) EMF-2 Fuel cost of Punto car No.KA-05- Rs.1,64,054-00 MG-8373
(b) EMM Maintenance/repair cost of vehicle bearing No.KA-05-MG-8373 Rs.20,000-00
44. EMM-3 Repair/maintenance cost of Santro Rs.1,69,206-00 Car bearing Regn No.KA-05-Z-
3716
45. (a)EMF-4 Fuel cost of Kinetic Honda Rs.23,360-00 No.KA-05-S-6007
(b) EMM Maintenance/repair cost of Kinetic Rs.2,400-00 Honda bearing Regn.No.KA-05-S-
6007
46. EE-I Amount spent by AGO for Rs.26,355-00 education of his children
47. EE-2 Amount spent by AGO for Rs.5,280-00 145 Spl.C.C. No. 428/2017 education of his children
48. EE-3 Amount spent by AGO for Rs.13,000-00 eduction of his children
49. EE-4 Amount spent by AGO for Rs.68,500-00 education of his children
50. EE-5 Amount spent by AGO for Rs.32,660-00 education of his children
51. EE-6 Amount spent by AGO for Rs.17,998-00 education of his children
52. EE-7 Amount spent by AGO for Rs.11,82,235-00 education of his children
53. EIT -1 Income tax paid by Rs.3,35,805-00 AGO
54. EIT -2 Income Tax paid by Rs.2,03,290-00 Smt.Prabhavathi w/o AGO
55. EIT-3 Income Tax paid by Sandeep Son -00- of AGO
56. EIT-4 Income Tax paid by Kum.Pooja -00- Daughter of AGO
57. EDO-1 Domestic Expenses of AGO and Rs.13,71,633-00 his family members during the check period
58. ERC-1 Payment made by AGO for the Rs.1,03,064-00 membership at Cosmopolitan, Jayanagar, Bengaluru
59. EG-I Payment made by Smt.Prabhavathi Rs.4,938-00 to obtain Gas connection and Cylinders
60. ECT-I Payment made to obtain landline Rs.8,130-00 phone connection to the house No.904, ISSRO Layout, Bengaluru
61. ECT-2 Payment made by AGO and his Rs.1,20,590-00 wife to obtain land line connection to their residential house
62. ECM-I Monthly bill paid by Sandeep S/o Rs.192-00 Sreenivasamurthy in respect of 146 Spl.C.C. No. 428/2017 mobile No.9880463355
63. EMISE-I Amount spent by Smt.Prabhavathi Rs.30,674-00 and Kum.Pooja at VLCC Health care center.
64. EMISE-2 Payment made by AGO for Rs.2,105-00 membership at Divyajyothi Sahakara Sangha, Jayanagar, Bengaluru.
65. EMISE-3 Amount spent by Sandeep S/o Rs.87,140-00 Sreenivasamurthy for purchase of CC TV camera Rs.1,21,38,145.16 Total
142. As mentioned above excluding the above said expenditure at Sl Nos.8, 11, 13, 19, 42, 44, 53, 54, 60, 61, 63 and 65, the accused has not disputed the above mentioned expenditure and its value as assessed and reported by the IO in his final report. Therefore the court is of the opinion that there is no necessity to appreciate and analyze the available oral and documentary evidence in respect of above said admitted expenditure items and facts on record.
DISPUTED EXPENDITURE ITEMS:
1. Expenditure Item No.8 - Expenditure code - EASR-8
143. The IO in the final report has mentioned this item 147 Spl.C.C. No. 428/2017 No.8 of the expenditure as an amount of Rs.2,31,860/-, the amount paid by Smt.Prabhavathi, for registration and stamp duty while purchasing the property No.4, Sarakki main road, Shakambarinagar, J.P.Nagar 1st stage, Bengaluru. It is the contention of the accused that incurring expenditure of registration and payment of stamp duty in respect of above property as assessed by the IO as expenditure is not correct. According to the accused the Sale deed pertaining to the said property was registered and executed on 10-10-2014 which is not during the check period and therefore the valuation made by the IO at Rs.2,31,860/- as expenditure is liable to be excluded. Ex.P8 clearly reveals that the above said property is purchased by wife of the accused under the registered Sale Deed, dated 10-10-2014. Admittedly, the check period in this case is considered as from 26-10- 1978 to 28-5-2014 and above said Ex.P8 Registered Sale deed is executed subsequent to the raid conducted to the house of the accused which means the Sale deed was not executed during the check period and therefore the stamp duty and registration fee paid subsequent to the 148 Spl.C.C. No. 428/2017 check period cannot be considered as expenditure and same is liable to be excluded. During the course of argument even the Public Prosecutor has conceeded that the IO committed a mistake by considering the stamp duty and registration charge paid by wife of AGO subsequent to the check period as expenditure and the same is need to be excluded.
144. The evidence available on record and Ex.P8 clearly reveals that the said sale deed was executed subsequent to the check period and therefore the value assessed by IO at Rs.2,31,860/- in respect of the above said item No.8 needs to be excluded and same is liable to be deducted from the total expenditure as calculated by IO.
2. Expenditure Item No.11 - Expenditure Code - EAA-1:
145. IO in his final report has described this expenditure Item No.11 as the amount spent by wife of AGO at Rs.4,39,166/- an amount invested for interior decoration of said house.
However, it is the contention of the accused that this item No.11 cannot be considered as expenditure 149 Spl.C.C. No. 428/2017 because the value of those interior decoration items were already considered as assets and hence if it again considered as expenditure it is nothing but duplication and purchasing of interior decoration items is only an investment and therefore the learned counsel for accused submitted that item No.11 cannot be considered as expenditure, hence the value as assessed by the IO, expenditure in respect of Item No.11 may be excluded. It is also submitted on behalf of the accused that the IO has made imagination of second floor on the said building and without any basis made valuation of the Interior Decoration which is untenable and hence requested to exclude the same.
146. On the other-hand the learned Public Prosecutor has submitted that the contention made by accused in this regard is not correct because the AGO in this case only denied the valuation made by IO regarding interior decoration items, but he has not furnished any document to support his contention and no witnesses were examined on behalf of the accused and even at the time 150 Spl.C.C. No. 428/2017 of raid no documents in this regard were found and no separate valuation is made by AGO. The learned Public Prosecutor has further argued that this property was purchased as per Ex.P.10 registered sale deed, Ex.P11 is the valuation report which reveals that Interior design and Interior decoration items were found in the said house and the expert has valued it.
147. It is an admitted fact that while assessing the building value of the aforesaid house the furniture and other interior decoration items were also taken into consideration and on the basis of Ex.P11 the interior decoration items were considered as assets and their value is also taken into consideration. Admittedly, the accused has not disputed that the fixtures and furniture were found in the said house when the raid was conducted. For an amount to be considered as expenditure there must be an actual out flow of funds based on existing rather than the potential or contingent liability. Investing on interior decoration items is nothing but capital expenditure. Admittedly capital expenditure 151 Spl.C.C. No. 428/2017 means it is incurred to acquire or bring into existence an asset and or on advantage for enduring benefit of a trade. Since the value of these interior decoration items is already considered as asset, as rightly pointed out by the learned counsel for accused, once again considering it as an expenditure, amounts to duplication. Therefore, the court is of the opinion that the valuation made by IO that the value of these interior decoration items at Rs.4,39,166.00 needs to be deducted from the total expenditure as valued and assessed by the IO. Expenditure Item No.13 - Code - EEC-2:
148. The IO in his final report has mentioned this disputed expenditure item No.13 Code No.EEC-2 as payment of electricity charges of site measuring 100x40 in Sy.No.23 of Mysore and the IO stated that the payment of Rs.13,895/- is made by the AGO. It is the specific contention and defence of the accused that, the said payments were made by the tenants since the said premises was let out to the tenants. On the other-hand it is the specific case of the prosecution that the documents 152 Spl.C.C. No. 428/2017 secured by the IO clearly shows that the said electricity connections were obtained by the AGO himself and the contentions of the accused is false.
149. In order to further substantiate its case the prosecution has examined PW.1 T.V.Manjunath, the IO who in his examination-in-chief has deposed that the accused has taken electricity connection and deposited the amount in respect of R.R.No.HBCL 1583, 1584, 1585, 1586, 1587 and 1588. Further the prosecution has produced Ex.P33 which reveals that the Assistant Executive Engineer, CESC has furnished the documents to the IO stating that the AGO has obtained electricity connection to the R.R.No.HBCL 1583 to 1588. Further, the prosecution also relies upon Ex.P40 the statement of one Ganesh who is GPA Holder of AGO who deposed about execution of GPA in his favour on 4-3-2013 in re- respect of above said property. Apart from this the learned Public Prosecutor relies upon the cross examination made to DW.1 at para No. 56 to 58 wherein the DW.1 has admitted that all the payments in respect of 153 Spl.C.C. No. 428/2017 above said RR Numbers were paid in his name and even the security deposit of Rs.12,000/- was also deposited in his name. However he has denied that the labour charges and the service charges to fix RR meters were paid by him.
150. On careful perusal of Ex.P33, it reveals that the AGO has submitted application to the CESC seeking electricity connection to the above said building. Page No.492 of Ex.P33 reveals that the security deposit of Rs.12,000/- was paid in the name of AGO and an application in this regard was filed on 10-7-2012. Even the documents at page No.493 to 503 also reveals that in the name of AGO only the applications were submitted seeking electricity connection and even the document at page No.504 of Ex.P33 reveals that the equipments required to obtain RR meters and electricity connection worth Rs.7140/- is paid to Landis+Gyr Limited on 09-07-2012 was paid by AGO itself. Further the documents at page No.505 to 515 of Ex.P.33 reveals that on 12-2-2012 total estimation cost was fixed at 154 Spl.C.C. No. 428/2017 Rs.11,859.75. Further the document at page No.516 of Ex.P33 reveals that NOC was even issued by the Mallathahally Grama Panchath to give electricity connection to the above said building and shops of the AGO.
151. Ex.P40 is the statement of GPA holder of AGO by name Sri.Ganesh, which reveals that the AGO has executed GPA in his favour on 04-03-2013, which means the said GPA appears to have been executed after submission of application by AGO to CESC, Mysore. Ex.P33 clearly reveals that the AGO has obtained electricity connection to the above said shops on 10-07-2012 and the rent agreements produced along with Ex.P40 reveals that the said shops were let out to the tenants subsequent to 04-03-2013 by the GPA Holder of AGO, which also reveals that the tenants have not paid the electricity connection charges as contended by the accused.
152. Even DW.1 in his cross-examination at para No.56 155 Spl.C.C. No. 428/2017 has admitted that as per the recitals of Ex.D3 MOU dated 26-03-2012, there is a condition that the expenses towards obtaining electricity connection, drainage, water connection etc., has to be borne out by the owner only. However, DW.1 volunteers that though there was such a condition in Ex.D3, the tenants have taken the responsibility to pay the same. Even in the letter addressed to the IO by the AGO dated 13-02-2014, he has not stated who spent amount to obtain electricity connection. Admittedly, the above said rent agreements reveals that said Shops were given on rent subsequent to 26-03-2014 only and all the rent agreements bears different dates. Apart from this it is relevant to note that in Ex.P116 at page No.107 though the AGO has declared about possessing the aforesaid property, but he has not stated that the building was constructed in the said site. It is described in Ex.P116 at page 107 that the said site is vacant property. However, the above said Ex.P33 and Ex.P40 clearly reveals that the electricity connection was obtained by AGO subsequent to 10-07-2012. More over to substantiate his said contention the accused has not 156 Spl.C.C. No. 428/2017 examined his GPA holder by name Sri.Ganesh or any of the tenants. No reasonable explanation is forth coming from the accused for non examination of any such tenant or his GPA holder to substantiate these aspects.
153. Even on careful perusal of the above said documents more particularly Ex.P33, which reveals that Rs.7140-00 + 11859-00 was spent by the AGO to obtain electricity connection and if both the amounts were added together it reveals that Rs.18,999/- was spent by the AGO. However, the IO in this case has consider the amount of Rs.13,895/- only as spent by the accused towards electricity connection charges. Even though the IO has shown the lessor amount than what have been paid by the accused, this court considers the estimation made by the IO regarding expenditure made by AGO in this regard as Rs.13,895/- only. The aforesaid discussions clearly reveals that the AGO has failed to substantiate that the electricity connection charges were paid by his tenants as contended.
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Spl.C.C. No. 428/2017 Expenditure Item No.19 - Code ERB1:
154. The IO in his final report has mentioned this item No.19 Expenditure Code ERB1 as the repayment of loan amount of Rs.4,03,451/- by wife of AGO to ICICI Bank, Chamarajpet, Bengaluru which was availed for the purpose of purchasing car. It is the contentions of the accused that EMI installments paid by AGO's wife at the rate of Rs.45,503/-per month which includes interest also but the IO has separately added interest at Rs.84,930/- which is not correct. Hence it is the submission of learned counsel for the accused that Rs.84,930/- has to be deducted and value of this expenditure item No.19 has to be considered at Rs.3,18,521/- only.
155. During the course of argument the learned Public Prosecutor has conceeded that the calculation made by IO regarding repayment of aforesaid loan is not correct. On careful perusal of the evidence on record and Ex.P45 the loan account details pertaining to the wife of AGO reveals that during the check period, Rs.3,18,521/- only 158 Spl.C.C. No. 428/2017 repaid by wife of the AGO and therefore considering the loan details as per Ex.P45, seven installments of Rs.45,503/- i.e. Rs.3,18,521/- is admittedly paid by wife of AGO and only that amount has to be considered and rs.84,930.00 has to be deducted from the total expenditure as assessed and valued by Investigating Officer.
Expenditure Item No.42 CODE - EMF1:
156. In this expenditure Item No.42 the IO has considered fuel cost of car bearing Regn.No.KA-05-MH- 394 as Rs.2,45,440/- and the maintenance and repair charges of said car under expenditure code No.EMM2 at Rs.21,800/-.
157. In the present case it is not in dispute that above said car bearing Regn.No.KA-05-MH-394 stands in the name of Smt.Prabhavathi, who is the wife of AGO. Further it is not in dispute that the above said car was purchased by wife of the accused on 11-11-2009. However, it is the case of the prosecution that as on the 159 Spl.C.C. No. 428/2017 date of raid i.e. on 28-05-2014, the said vehicle run about 48,990 K.M. and as per the report obtained by PW.10 the average fuel cost to run said 48,990 kilometer is approximately assessed at Rs.2,45,440/- and hence according to the prosecution the same has to be considered as expenditure of the accused. In this regard the prosecution relies upon the evidence of PW.10 K.P. Gangadhar Acharya, ARTO and his report submitted as per Ex.P.17. Further the prosecution also relies upon the Ex.P20 panchanama, wherein IO has mentioned that as on the date of conducting raid the above said car run about 48,990 K.M.
158. On the other hand it is the specific defence of the accused that the said car was used by his daughter DW.2 Miss.Pooja, who was working in Infosys on carpooling basis along with her colleagues and the fuel charges shared with 3 of her colleagues and her share of expenditure over this is not more than 25%. Hence the accused in his examination-in-chief itself stated that 1/4th of Rs.2,45,440/- i.e. Rs.61,360/- may be 160 Spl.C.C. No. 428/2017 accounted as expenditure in this regard.
159. To further substantiate his contention the accused has got examined his daughter Miss.Pooja as DW.2, who in her evidence has reiterated that while she was working at Infosys she used to go to office in the above said car bearing No.KA-05-MH-394 along with her colleagues by name Pratheek, Prashanth and Shruthi in carpooling and all four of them were equally sharing the fuel cost and she has also deposed that the car though purchased in the year 2009 it was not used frequently and according to her the total fuel cost is assessed at Rs.24,000/- and her share is only Rs.6000/-. However in her cross- examination made by learned Public Prosecutor DW.2 has admitted that she joined Infosys on 30-09-2013 and her mother purchased the said car in the year 2009 and she denied that as mentioned in Ex.P20 and Ex.P17 Report as on the date of raid the mileage of said car was 48,990/-.
160. In a disproportionate asset case, fuel and 161 Spl.C.C. No. 428/2017 maintenance costs of a vehicle are part of the total expenditure that the accused must account for to explain their wealth. These costs are typically assessed by Investigating agencies using a combination of direct evidence and reasonable estimation based on established criteria. In this case the prosecution has examined PW.10 K.P. Gangadhar Acharya, who while working as ARTO collected information regarding the fuel cost pertaining to the above said vehicle from one Sri.I.M.Khan, and according to his evidence he has cross checked the information submitted to him and thereafter submitted report as per Ex.P17. In his cross-examination he has admitted that he has not tested the said vehicle on road to find out its average mileage. He denied that the said vehicle was giving 18-19 kilo meter mileage per liter. He has denied that on imaginary basis he has given report as per Ex.P17.
161. Ex.P17 reveals that the above said car was purchased by Smt.Prabhavathi and said car was registered on 19-11-2009 and admittedly raid was 162 Spl.C.C. No. 428/2017 conducted on 28-05-2014 and till that day for about 5 years said car was run. Page 232 of Ex.P17 reveals that the said vehicle was purchased in the name of Smt.Prabhavathi and price of said vehicle, i.e. Rs.6,14,090/- was paid in cash. Further the details furnished at page-231 of Ex.P17 reveals that the total kilometer covered from 19-11-2009, i.e. from the date of purchase till 28-05-2014, the date of conducting raid is 48,990 kilometer and average mileage is considered as 15 kilometer per liter of petrol and total petrol used to travel such kilometer is 3266 and average cost of petrol is assessed approximately at Rs.2,45,440-00. As mentioned above the accused has denied that the said vehicle travelled 48990 kilometer and according to the accused and DW.2 it might have traveled only 4,000 kilometer. The accused has not only denied the Ex.P17 report but on the contrary contended that it has travelled only 4000 kilometer and not 48,990 k.m.
162. The materials on record, particularly Ex.P.20 mahazar reveals that as on the date of conducting raid 163 Spl.C.C. No. 428/2017 the IO has clearly mentioned that the said car run about 48,990 k.m. and page 235 of Ex.P17 which is the credit invoice dated 17-2-2014 issued by Advaith Motors reveals that on the said date when the car was given for service its mileage is noted as 4501 and page 237 of Ex.P17 reveals that on 14-7-2014 the mileage of the said car was 50593, which is subsequent to the raid and said credit invoice was also issued by Advaith motors. The above said credit invoices and Ex.P20 mahazar entries clearly reveals that the IO has approximately considered the total kilometer covered by the said vehicle from the date of purchase till the date of conducting raid.
163. When the accused and his daughter contended that the said vehicle was used by DW.2 Miss Pooja as a pool vehicle along with her 3 friends, the burden is quite obviously upon the accused to substantiate the same. It is surprising to note that even though DW.2 in her evidence has stated names of her 3 friends who used to go to office along with her in the said car, she has not chosen to examine any one of them to substantiate her 164 Spl.C.C. No. 428/2017 said contentions. Further in the span of said 5 years said car run only 4000 kilo meter, as contended by the accused, is not established by the accused. Apart from this it is very surprising to note that the accused in his evidence has stated that 1/4th of Rs.2,45,440-00 i.e., Rs.61,360/- may be considered as fuel cost pertaining to the said vehicle. The said version of DW.1 reveals that accused admits the fuel cost as assessed by PW.10 as per Ex.P17. Further it is relevant to note that while cross examining PW.10 it is suggested to him that the price of petrol varies from the year 2009 till 2014.
164. It is true that the price of petrol varies from the year 2009 till 2014. However, it is also true that the prosecution has not furnished the price of petrol from the year 2009 till 2014 and under such circumstances, the approximate petrol price from 2009 till 2014 has to be considered. In this case it is very pertinent to note that on behalf of accused it is suggested to PW.10 that in the year 2009 the petrol price was Rs.40/- and thereafter it was gradually enhanced to Rs.70/- in the year 2014. 165
Spl.C.C. No. 428/2017 Even if the price of petrol per liter is considered as suggested by learned counsel for accused from the year 2009 till 2014, the approximate fuel cost as assessed by IO at Rs.2,45,440/- appears to be very minimum. If the petrol rates as suggested by the learned counsel for accused taken into consideration it would be more than Rs.2,45,440/- as assessed by the IO. Apart from this it is relevant to note that the daughter of the accused joined Infosys from September 2013 only and admittedly the vehicle was purchased in the year 2009 itself. Hence there is no ambiguity to hold the view that accused has failed to substantiate his contentions that the said vehicle run only 4000 kilometer and said car was used as a pool vehicle and only 1/4th fuel cost has to be considered as expenditure. On the other-hand available materials on record clearly reveals that the prosecution has proved that the said vehicle has run 48990 kilometer and its average fuel cost is Rs.2,45,440. Hence the same is need to be accepted.
165. With regard to maintenance and repair cost of said 166 Spl.C.C. No. 428/2017 vehicle is concerned, as mentioned above the IO has stated in the final report that the maintenance charge spent by AGO is Rs.21,800/-. To substantiate this aspect the prosecution further relies upon the evidence of PW.10 K.P. Gangadhar Acharya and Ex.P17 report. Page No.231 of Ex.P17 reveals that the concerned Motor Vehicle Inspector has assessed the cost of general maintenance of the said vehicle for 48,990 kilometer is approximately at Rs.21,800-00. The accused in this case only denied the said cost as assessed by the IO. Page No.235 of Ex.P17 credit invoice, credit invoice at page 237, credit invoice at page No.238 of Ex.P17 reveals that said car was handed over to Advaith Motors Private Limited, for the purpose of service and maintenance and repair and when the service charges mentioned in these credit invoices are taken into consideration it is more than the amount as assessed by the IO. Admittedly, vehicle maintenance which includes oil change, minor repairs is revenue expenditure. The evidence of PW.10 coupled with above said Ex.P17 including credit invoices issued by Advaith Motors Private Limited, Bengaluru, further substantiate the case of the 167 Spl.C.C. No. 428/2017 prosecution that the AGO has incurred expenditure of Rs.21,800/- for service/repair of the said vehicle.
166. Further, even DW.2 Miss.Pooja, in her evidence has admitted that the said car given for service at Advaith Motors and ledger extract issued by Advaith Motors reflects the mileage of car and amount spent for service of the vehicle. Hence taking into consideration the above said oral and documentary evidence on record the court is of the opinion that the prosecution has succeeded in proving expenditure of above said car as assessed by IO and stated in the final report and same has to be accepted accordingly.
Expenditure Item No.44 CODE - EMM3:
167. The IO in his final report has mentioned this expenditure Item No.44, Expenditure code EMM3 as the cost incurred by the AGO for maintenance/repair of Santro car bearing Regn.No.KA-05-Z-3716 at Rs.1,69,206/-. In the present case there is no dispute that the above said Santro car bearing Regn.No. KA-05-Z- 3716 stands in the name of Smt.Prabhavathi who is the 168 Spl.C.C. No. 428/2017 wife of AGO. It is also an undisputed fact that said vehicle was registered on 27-11-2001 and the prosecution relies upon Ex.P18 the report submitted by PW.10 K.P. Gangadhar Acharya, which reveals that the said vehicle was not sold to any one as on the date of conducting raid and page No.265 of Ex.P18 reveals that even the said car was also given for service to Advaith Motors Private Limited, said company has furnished the details of service charges pertaining to the said vehicle which is at page No.266 and 267 of Ex.P18 which is about Rs.1,69,206/-.
168. However, in respect of this expenditure as assessed by the IO, the contention of the accused is that the said assessment made by the IO is baseless and the figure assigned is random figure and said car was sold to one Sri.Umashankar, Professor in May 2004 for Rs.2,75,000/- itself. Even DW.1 in his evidence has reiterated the said contentions. When it is the contention of the accused that said vehicle was sold to one Sri.Umashankar in May 2004 for Rs.2,75,000/-, the 169 Spl.C.C. No. 428/2017 burden is upon the accused to prove the same. However, it is pertinent to note that in this case the accused has not chosen to examine Smt.Prabhavathi, who is the R.C. owner of the said vehicle and also not chosen to examine the alleged purchaser by name Sri.Umashankar for the reasons best known to him. If at all the said car was sold in the year 2004 itself as contended by accused, the accused ought to have furnished the documents like copy of registration certificate or Form No.29 or 30. Ex.P.18 clearly reveals that the said vehicle still stands in the name of wife of AGO. Further it is relevant to note that if at all the said car was sold in the year 2004 for Rs.2,75,000/-, the said fact ought to have been reflected in the concerned APR filed by AGO. Admittedly, no such clear recitals is found in the APR of the accused pertaining to the year 2004 in this regard. Further page- 260 of Ex.P18 reveals that the said vehicle was Hypothecated to ICICI Bank and at page No.261 to 263 of Ex.P18 reveals that said hypothication was cancelled within 2 years from the date of entering into hypothication.
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169. The transfer of the registration as per sec.50 of the M.V.Act 1988 requires the transferree to report the fact of transfer in the prescribed format to the registering authority within whose jurisdiction the transfer is affected within 14 days of the transfer.
170. Admittedly, in this case as per the report of ARTO the said vehicle still stands in the name of wife of AGO and as contended above accused in this case has failed to substantiate that said vehicle was sold to Sri.Umashankar in the year May 2004 itself. By relying upon the oral evidence of PW.10 and Ex.P18 Report and its annexures this court comes to the conclusion that the maintenance and repair cost of the said car at Rs.1,69,206/-as assessed by the IO approximately is correct and proper and under the circumstances the same needs to be accepted accordingly. Expenditure Item No.53 CODE - EIT-1:
171. The IO in his final report in the head of expenses 171 Spl.C.C. No. 428/2017 mentioned this Sl.No.53 of expenditure code EIT-1 as the income tax of Rs.3,35,805/- paid by the AGO as expenditure. To substantiate this aspect the prosecution relies upon the Ex.P38 the salary details of AGO secured by the Investigating Officer from the office of higher authorities of the accused and as per page 2, 4 and 6 of Ex.P38, from October 1978 till June 1979 and from 3-11-1980 till 17-05-1983 and from 01-6-1987 till 31-07- 1991 the AGO has not paid any income tax and no amount is deducted from his salary towards income tax. Page No.34 of Ex.P38 reveals that from 16-02-2002 Income tax was deducted from the salary of AGO and as per Ex.P38 and Ex.P39, it appears that Rs.3,36,317/- is deducted from the salary of the accused towards Income tax. According to the prosecution the said Income tax deduction has to be considered as expenditure.
172. However, it is the contention of the accused that the aforesaid amount which is deducted as income tax from his salary cannot be considered as expenditure because the said advance income tax deduction was 172 Spl.C.C. No. 428/2017 made out of gross salary income and IO has considered the income of the AGO as net salary income and hence the said assessment and calculation made by IO is wrong.
173. The materials on record reveals that while considering the salary income of the AGO under the head of income at Sl.No.1 the IO has admittedly considered the net salary of the accused which is undisputed by AGO. It is settled law that the deduction of a tax from public servant's gross salary is not classified as an expenditure, it is treated as source of Government revenue. The gross salary paid to the public servant before any deductions is the governments expenditure. In accounting terms the net salary is the cash out flow to the employee while the tax withheld is a liability for the employer, that is subsequently settled internally as revenue. The amount of Tax deducted at Source (TDS) itself is not an item of expenditure for the deductor. TDS is a mechanism for collecting income tax at the source of income, which is ultimately the liability of the person receiving the income. 173
Spl.C.C. No. 428/2017 The amount deducted as TDS is nothing but an advance payment of the recipient's final tax liability. The recipient or deductee gets credit for this amount against their total tax burden when filing their own return. If at all in this case IO has considered gross salary of the accused while considering the salary income on the income head, then the afore mentioned tax deduction ought to have considered as expenditure of AGO. Admittedly the IO has considered the net income of the AGO as salary income and therefore the calculation made by IO for Rs.3,35,805/-paid towards income tax by AGO cannot be treated as expenditure and the contentions raised by the AGO in this regard is tenable. Therefore, taking into consideration all these aspects the court holds that the aforesaid amount of Rs.3,35,805/-which was deducted from the gross salary of AGO towards income tax needs to be excluded from the calculation of expenditure. Expenditure Item No.54 CODE - EIT-2:
174. The IO in his final report has described expenditure at Sl.No.54 code EIT-2 as Rs.2,03,290/- which is the 174 Spl.C.C. No. 428/2017 payment made by Smt.Prabhavathi, towards income tax as an expenditure. It is the submission of learned Public Prosecutor that the accused in this case has contended that his wife was running a beauty parlor and she also worked as interior designer and failed to prove it. Whereas the accused relies upon the ITR's filed by his wife as per Ex.P42 and hence his claim is that his wife was doing business and earning money. Further, it is the contention of the accused that the said ITR's filed by his wife clearly reveals that for the different years she earned business income and out of the business income only the said tax amount of Rs.2,03,290/- was deducted and hence once again the said amount cannot be considered as expenditure and hence the same needs to be excluded.
175. During the course of arguments it is submitted on behalf of the accused that wife of the accused has submitted ITR and in her ITR's she has clearly stated the business income received by her out of her aforesaid business and the said information submitted through ITR 175 Spl.C.C. No. 428/2017 has to be believed. It is also argued by the learned counsel for accused that the Income tax authorities have accepted the ITR's filed by the wife of the accused and only for the reason that no documents pertaining to the business of wife of the AGO is furnished, the defence of the accused cannot be rejected.
176. On perusal of the materials on record including cross-examination made to DW.1 clearly reveals that the accused has admitted that he has not produced any documents other than the ITR's of Smt.Prabhavathi which reveals that his wife was doing beauty parlor and Interior Decoration business. A detail discussion whether the accused has proved that his wife was doing business and earning money as contended is proved or not will be made while considering the aspect of disputed income of wife of AGO. Ex.P41 the statement stated to be given by wife of accused to the IO reveals that according to her from 1998 till 2008 she has done Interior design business and from 2008 till 2013 she has run Classic Beauty Parlor. Page-98 of Ex.P41 reveals that the IO sought 176 Spl.C.C. No. 428/2017 particulars regarding the said business of Smt.Prabhavathi and in response to his letter the wife of the accused has furnished copy of licence issued by BBMP infavour of one Sri.N.Udaya Kumar in the year 2008 and she has stated that she was running Beauty Parlor at her house situated at 1st Stage J.P.Nagar, Bengaluru. Even in her reply to the letter of IO wife of the accused has stated that for doing interior decoration business no special skill no training is necessary and on pre-imagination she was doing said interior decoration business and running of beauty parlor is not a commercial activity. Ex.P.43 reveals that the documents sought by IO regarding business of wife of the accused is not furnished either by the accused or by his wife.
177. Even DW.1 in his cross-examination made by learned Public Prosecutor clearly admits at para No.17 that his wife has not taken any special training for Interior design business and at para No.35 of his cross- examination he has admitted that to run Beauty Parlor his wife has not obtained licence from BBMP and she has 177 Spl.C.C. No. 428/2017 also not taken any training to run Beauty Parlor. He has also admitted that he has not furnished any documents to show that his wife was doing the said business at his residence at J.P.Nagar. DW.1 has also admitted that Ex.P41 the copy of licence dated 26-07-2016 was issued in the name of one Sri.N.Udayakumar on 15-7-2008. It is relevant to note that the accused has not examined his wife and also not examined Sri.N.Udayakumar to further substantiate that his wife was doing aforesaid business at the relevant point of time.
178. Now the points remains for consideration is whether on the basis of IT returns only the court can consider that the wife of AGO was running business and earned income as contended or not.? An Income source mentioned in an ITR cannot be automatically believed in the absence of documentary proof. The ITR filing process is largely based on self assessment and trust. However this does not mean the claims are accepted as fact without potential verification. The Hon'ble Apex Court in 178 Spl.C.C. No. 428/2017 the case of State of Karnataka Vs Selvi J.Jayalalitha and others (2017) 6 SCC 263 held that " The IT returns and the orders passed in the IT proceedings would not by themselves establish that such income had been from lawful source as contemplated in the explanation to Section 13 (1) (e) and that independent evidence would be required to account for the same". The property in the name of Income Tax assessee itself cannot be a ground to hold that it actually belongs to such an assessee. In this case the materials on record clearly reveals that no documents regarding existence of aforesaid business of wife of the accused is furnished and wife of the accused is also not examined and in the absence of these relevant evidence, it can be clearly held that those businesses as contended by the accused have not seen the light of the day. It is surprised to note that even in the absence of the documents regarding existence of said business how the IO come to the conclusion that the wife of the accused was doing business and earned income about Rs.28,32,410.00 ?.
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179. Taking into consideration all these facts, the court is of the opinion that when the business establishment of the wife of the accused itself had not seen the light of the day, the question of deducting of tax from the business account as assessed and calculated by IO cannot be accepted. Apart from this it is relevant to note that none of the said business establishment admittedly made through business account and no balance sheet, no account statement, no profit and loss account were furnished by the accused and these facts clearly reveals that the IO has not properly investigated the case and therefore, the question of considering the aforesaid tax payment of Rs.2,03,290/- as expenditure cannot be considered and for the reasons stated above the same has to be excluded since no acceptable evidence is placed before the court which shows that the wife of the accused was doing the business as contended.
Expenditure Item No.57 CODE - EDO-1:
180. The IO in his final report at Sl.No.57, Expenditure code EDO-1 has made calculation of Rs.13,71,633/- as 180 Spl.C.C. No. 428/2017 domestic expenses of the AGO and his family members during the check period. The prosecution contends that the said calculation was made approximately on the basis of the Ex.P-88 Report given by PW.11 Sri.K.N.Kantharaju. Said Sri.K.N.Kantharaju, who in his evidence deposed that he had served as Deputy Director, Statistics, KLE. Bengaluru and on the basis of General Family Income and Expenditure Survey 2009 report of Government of Karnataka and on the basis of the price index of each relevant period/year, he has calculated the above said household expenses of the AGO and his family members during the check period and submitted report as per Ex.P88. In his cross-examination PW.11 deposed that as per the information given by IO he has calculated the general family income and expenditure of the AGO and his family members. He has denied that he has falsely submitted report and his report is baseless and erroneous.
181. During the course of argument the learned Public Prosecutor has submitted that considering the general 181 Spl.C.C. No. 428/2017 principles laid down by Hon'ble Apex Court in the case of Sajjan Singh Vs State of Punjab, 1/3rd of net income of the AGO can be considered as household expenses. On the other-hand the learned counsel for accused has submitted that the Ex.P88 Report submitted by PW.11 is without collecting any data and it is baseless and erroneous. It is also submitted on behalf of the accused that AGO and his family is an agriculturist family, and they used to take cereals and pulses from the agriculture and hence the valuation made at Rs.1,99,601-00 and Rs.50,518/- is liable to be excluded and also further submitted that beverages value of Rs.1,14,961-00 is to be excluded as it is exorbitant and the said calculation is made on assumption and presumption and himself and his family members are not taking such type of drinks. The accused in his evidence has stated that an amount of Rs.14,961/- is sufficient under this head instead of Rs.1,14,961/-.
182. The learned counsel for accused has also submitted that the medical expenditure valued at Rs.77,811/-is 182 Spl.C.C. No. 428/2017 liable to be excluded since being a public servant he had availed the facilities of medical reimbursement. The accused has also contended that the entertainment expenditure at Rs.66,777/- has to be excluded as himself and his family members not incurred any expenditure in this regard. It is also argued on behalf of the accused that the household consumable valued at Rs.50,936/- is to be excluded as it is imaginary valuation and the said value may not be more than Rs.10,000/- and miscellaneous consumer services valued at Rs.1,98,442/- is also not to be considered since being a public servant accused has availed the facilities of home orderly, hence requested to exclude those amount as contended.
183. As mentioned above, it is the contention of the accused that his family is an agriculturist family and it is an admitted fact that some of the immovable properties were purchased in the name of accused and his wife. However, it is brought to the notice of the Court by the learned Public Prosecutor that the immovable property inherited by wife of the accused is a dry land and accused who has contended that the said land was given 183 Spl.C.C. No. 428/2017 on lease to one Mr.Anand and they cultivated the rice, ragi, jower, etc, is not proved by the accused and hence the said contention of the accused is not believable. Admittedly, the accused though contended as aforesaid, he has not chosen to examine, said Mr.Anand or any other witnesses to substantiate that in the said land they were cultivating the agricultural crop. It is pertinent to note that in his cross-examination DW.1 has deposed that himself and his family members were not in the habit of drinking coffee, milk, tea, etc. In his cross- examination DW.1 also admitted that he has taken cable connection in the year 2011 and has also admitted that he took membership of Cosmopolitan Club, Bengaluru and he has paid the club membership charge. He has also admitted that he is not in possession of any document to show that he has spent Rs.10,000/- only to purchase electronic items and soap detergent and daily items required for daily usage. He has denied that prior to 2009 since there was no home orderly he has obtained services of house maid. He has denied that for Barber shop, Beauty parlor, for Stitching of cloth himself and his 184 Spl.C.C. No. 428/2017 family members spent nearly Rs.2,00,000/- during the check period. He has denied that calculation made by IO regarding these domestic expenses is very minimum.
184. Admittedly it is not possible to get any invoice for money spent for food, cloths, electronic items etc., for some 20 or 30 years back. It is also very difficult to secure or furnish the documents in respect of expenses made for regular day to day expenses incurred in running household. These expenses can vary from person to person and depend on factors such as life style, family size, location and personal preferences. While there is no fixed list of household expenses, some common categories that may be considered. They are expenses related to the cost of renting of home or for paying mortgage, expenses relating to basic utility such as electricity, water, gas, internet, expenses pertaining to grossories, cost of food and household supply, expenses related to commuting fuel cost, public transportation fare, car maintenance, insurance, expenses for personal hygiene product, grooming, health care and expenses relating to various 185 Spl.C.C. No. 428/2017 types of insurance, life insurance, health insurance, home insurance, vehicle insurance, expenses related to credit card billings, loan installments, expenses pertaining to education of children with regard school or college fees, tuition fees and cost of leisure activities, hobbies, movie subscriptions and other miscellaneous expenses such as clothing, home repair, household appliance, charitable donation etc.
185. Now in this case the prosecution relies upon oral evidence of PW.11 and Ex.P88 Report. It is an admitted fact that Ex.P88 Report reveals that the PW.11 has considered the various costs including aforesaid various household expenses in detail and in the report itself the basis for arriving such conclusion is clearly stated. On the other-hand the accused who has taken different contention has failed to establish the same before the court. Hence there is no ambiguity to hold the view that the accused has failed to establish that the exclusion of said household expenses which he has sought is not established as per law.
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186. The Hon'ble Apex Court in Sajjan Vs State of Punjab (AIR 1964) SC 464 has held that while calculating household expenses approximate estimation of household expenses i.e. 1/3rd of net income can be taken into consideration. The guideline given in the said decision is a general guideline for all cases of this nature. Typically 1/3rd of the total none income of the person concerned is taken into account for estimating living expenses. Likewise in this case, when the net income of the AGO i.e. Rs.35,64,520/- is taken into consideration, its 1/3rd is Rs.11,88,173/- and hence the court opines that the said amount of Rs.11,88,173/- has to be considered as household expenses of the accused and his family members during the check period and therefore Rs.1,83,460/- has to be deducted from this Sl.No.57 expenditure while calculating the total expenditure of AGO and his family members.
Expenditure Item No.60 Code - ECT-I:
187. The IO in his final report mentioned this 187 Spl.C.C. No. 428/2017 expenditure Item No.60 code ECT-I at Rs.8130/- as the land line phone bill paid by Mr.Sandeep who is son of AGO. According to the prosecution the said landline phone No.26666655 stands in the name of one Harish Kumar.G. and the landline Phone bearing No.26666688 stands in the name of Sri.Sandeep and Rs.8,130/- phone bill was paid for the period from 6-11-2013 till 27-05-2014. To substantiate this aspect the prosecution has furnished Ex.P35 which reveals that from 16-09-2013 till 15-4-2014 Rs.8,130/-is paid towards landline phone bill. According to the prosecution since the said amount is spent towards said landline phone bill the same has to be considered as expenditure of the AGO.
188. However, on the other-hand it is the contention of the accused that the said phone bill cannot be considered as expenditure because his son Sandeep has paid income tax and his business income is taken after deducting said expenditure of payment of income tax at Rs.8,130/- and hence once again considering this as expenditure amount 188 Spl.C.C. No. 428/2017 to double expenditure.
189. On careful verification of Ex.P35 at page No.597 it clearly reveals that as assessed by the IO in respect of above said landline phone bill of Rs.8130/- is paid for the above mentioned period. Ex.P.75 at page No.11 and 12 regarding the ITR filed for the year 2014-15 by said Sandeep S/o Srinivasamurthy, reveals that nothing is mentioned regarding payment of landline phone bill by the son of the accused during the aforesaid period. Admittedly no documents secured by the prosecution as well as no document produced by the accused discloses that said phone bill was mentioned in the ITR filed by the son of the accused and same was considered and his business income is taken into consideration after deducting the said phone bill as contended by the accused. Hence the contentions of the accused made in this regard is negativated and the court is of the opinion that the said amount of Rs.8130/- has to be considered as expenditure of accused.
189
Spl.C.C. No. 428/2017 Expenditure Item No.61 Code - ECT-2:
190. The IO in his final report has mentioned this expenditure Sl.No.61 Code ECT-2 the landline phone bill of Rs.1,20,590/- paid by Smt.Prabhavathi W/o Srinivasamurthy. It is the case of the prosecution that the AGO and his wife have obtained BSNL Landline No.26657070, 26657272 and towards the said landline phone bills Rs.1,20,590/- is paid and the same has to be considered as expenditure of the accused. To substantiate this aspect the prosecution relies upon Ex.P-36 the Information submitted by the concerned official of BSNL wherein it is clearly mentioned that for the aforesaid check period, an amount of Rs.1,20,590/-
is paid by wife of accused. However, it is the contention of the accused that as per the ITR filed by wife of the accused for the different years her business income is taken after deducting the said expenditure of phone bill of Rs.1,20,590/- and hence the same cannot be considered as expenditure and if it is considered it amounts to doubling of expenditure.
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191. On careful perusal of the evidence and documents on record, it clearly reveals that as per Ex.P.36 the said landline connections were obtained in the name of AGO and his wife and during the check period the said amount of Rs.1,20,590/- is paid towards the landline phone bill. When Ex.P71 page No.347 the ITR filed by the wife of the accused for the assessment year 1997-98 and page 351 of Ex.P71 the statement of Income for the assessment year 1998-99 is taken into consideration, it reveals that nowhere there is a reference regarding telephone charges paid. In the present case on the basis of the evidence on record, it is clear that though the accused has contended that his wife was doing business like running Beauty Parlor and Interior Decoration, he has failed to establish those facts and DW.1 has clearly admitted that no business account is maintained in the name of alleged business firm and in the name of his wife. Further if page 371 and 374 of Ex.P-71 is considered carefully, it reveals that a reference is made with regard to S.B. Account bearing No.20176 in the name of Smt.Prabhavathi.
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192. However, it is pertinent to note that as admitted by DW.1 and as per Ex.P27 the SB Account at ICICI, Padmanabhanagar Branch, Bengaluru was opened in the name of said Smt.Prabhavathi only on 25-11-2013 and admittedly when ITR in the name of wife of accused is filed for the year 2004-2005 and 2006-2007 the said SB Account in the name of wife of AGO not at all existed. These facts on record clearly reveals that the accused has not furnished the relevant documents in support of his said contention. On the other-hand aforesaid oral evidence and documentary evidence on regard clearly reveals that in respect of the said payment of landline phone bill is considered, there is no evidence on record which revels that the business income of the wife of the accused was taken into consideration after deducting expenditure of phone bill of Rs.1,20,590/-. Therefore the said contention of accused in this regard is negativated and the court holds that said amount of Rs.1,20,590/- is to be considered as expenditure of AGO. 192
Spl.C.C. No. 428/2017 Expenditure Item No.63 Code - EMISC-1:
193. The IO in his final report has mentioned this expenditure at Sl.No.63 EMIWSC-1 at Rs.30,674/-, the expenditure made towards Health Care Center, VLCC by wife and daughter of the accused. According to the prosecution since the said amount is spent by wife and daughter of AGO for Health Care Center which is situated at J.P.Nagar, 2nd phase, Bengaluru and particularly the daughter and wife of the accused have spent Rs.15,337/- each on 30-05-2012 in the said Health Care Center the same needs to be considered as expenditure of AGO. However, it is the contention of the accused that since the said expenses is already considered by the prosecution while assessing the household expenses same cannot be considered as it amounts to duplication.
194. On careful perusal of the report submitted by PW.11 Sri.K.N.Kantharaju as per Ex.P88, the report pertaining to household expenses, the said amount spent by the AGO and his family members is taken into 193 Spl.C.C. No. 428/2017 consideration in the coloum of amount spent for Institutional, Medical expenses. Hence as rightly pointed out by the learned counsel for accused again considering the aforesaid amount as expenditure amounts to duplication. Hence the court holds that said amount of Rs.30,674/- needs to be deducted from the total expenditure as calculated by IO.
Expenditure Item No.65 Code - EMISC-3:
195. The IO in his final report has mentioned this expenditure Sl.No.65 EMISC-3 at Rs.87,140/-. the amount spent by Sandeep S/o. Srinivasamurthy to purchase CCTV Cameras to his Purple-Hue Teckno Soft Private Limited. According to the prosecution son of the accused has purchased 7 CCTV Cameras for Rs.22400/-. On 31-01-2014 and for outdoor he has purchased Bullet- 3 CCTV camera for about 10500/- and he has spent Rs.54,240/-for wiring charges and other miscellaneous expenses and in total he has spent Rs.87140/- and hence the same has to be considered as expenditure of AGO. 194
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196. However, it is the contention of the learned counsel for accused that said amount spent to purchase indoor and outdoor CCTV Cameras and other miscellaneous expenses were already considered and calculated when the raid was conducted to the said office and the price of these CCTV Cameras were already considered in the household items mentioned in Ex.P21 Panchanama and hence once again considering the aforesaid amount as expenditure amount to duplication. Hence, it is submitted by the learned counsel for accused the said amount may be excluded from the total expenditure assessed by IO.
197. On careful perusal of Ex.P21 Panchnama, it reveals that the IO has conducted search of the house No.904 ISSRO Layout, 12th Main road, on 29-05-2014. It reveals that the IO in the presence of panch witnesses and son of the accused, has noted down about installation of CCTV Camera in the panchanama itself. The valuation of 11 CCTV Camera is quantified at Rs.84,000/-. Since the amount spent for installation of 195 Spl.C.C. No. 428/2017 said CCTV Cameras is already taken into consideration as expenditure while considering Ex.P21 Panchanama, again considering the said amount as expenditure amount to duplication. Hence the Court holds that the said amount of Rs.87,140/- needs to be deducted from the total expenditure calculated by the IO.
198. In view of the aforesaid discussion and considering the materials on record, the Court is of the opinion that out of the total expenditure of Rs.1,21,38,145.16 as calculated by IO, Rs.2,31,860/-(Expenditure Item No.8) Rs.4,39,166.00 ( Expenditure item No.11) Rs.84,930/- ( Item No.19) Rs.3,35,805/- (Item No.53), Rs.2,32,090/- (Item No.54), Rs,1,83,410/- ( Expenditure Item No.57), Rs.30,674/- ( Item No.63) Rs.87,140/- (Item No.65) in total Rs.16,25,075/- has to be excluded and it amounts to Rs.1,21,38,145.16 - 16,25,075 = 1,05,13,070.16. INCOME:
199. The IO in his final report has shown 37 items in Income coloum and further stated that the total income 196 Spl.C.C. No. 428/2017 of the AGO and his family members during the check period is Rs.2,53,49,142.43. The AGO in this case has disputed the assessment made by the IO in respect of Income at Item No.2 to 7 and 20 and 28. Apart from this the accused has also contended that the IO has deliberately left out several other lawful source income of the accused and his family members. The following are the details of the Income of the accused shown as acquired during the check period.
SL. Income Code Description of Income. As per IO No.
1. IS-1 Salary Income Rs.35,64,520.43
2. IA Agriculture Income from the agricultural property possessed by _____ wife of AGO at Toremallayanakanahally, Devalapura Grama, Nagamangala Tq in Sy.No.198
3. IR-1 The rental income from house No.22 and 22/1, 5th 'B' cross, Rs.10,58,972/- Sarraki Main Road, JP Nagar 1st Stage, Bengaluru
4. IR-2 Rental Income from shops situated Rs.69,000/-
in Sy.No.23, Gaddige road, Maratti kyathanahally, Bogadi, Mysore
5. IB-1 Income of wife of AGO from Rs.28,32,410/-
Interior Decoration and Classic Beauty Parler etc.,
6. IB-2 Income of S.Sandeep Son of the --
accused from Perpal Hue Tecnosoft Private Limited and Agro Intractive Media Private 197 Spl.C.C. No. 428/2017 Limited.
7. IB-3 Income of Kum.Pooja D/o of the Rs.1,24,976/-
accused from her tuition and salary from Infosys
8. IBI-1 Interest Income credited to Rs.747/-
S.B.Account of Sri.S.Sandeep, possessed at Vijaya Bank Dayanandasagar college branch, Bengaluru.
9. IBI-2 Interest Income credited to Rs.1,241-00 S.B.Account of Pooja held at Vijaya Bank, Dayanandasagar college brach, Bengaluru
10. IBI-3 Interest Income credited to SB Rs.68,028-00 Account of S.Sandeep held at ICICI Bank, Jayanagar, Bengaluru
11. IBI-4 Interest Income credited to Rs.55,087/-
S.B.Account of S.Pooja held at ICICI Bank, Jayanagar Branch, Bengaluru
12. IBI-5 Interest Income credited to Rs.362/-
S.B.Account of Smt.Prabhavathi, account held at ICICI Bank, Padmanabhanagar Branch
13. IBI-6 Interest Income credited to 1,57,154/-
S.B.Account held at ICICI Bank, Chamarapete Branch, Bengaluru in the name of AGO
14. IBI-7 Interest Income credited to Rs.204/-
S.B.Account held at ICICI Bank, Chamarapete Branch, Bengaluru int the name of AGO
15. IBI-8 Interest Income credited to Rs.11,646/-
S.B.Account of AGO held at ICICI Bank, Chamarajpete Branch, Bengaluru in the name of AGO.
16. IBI-9 Interest Income credited to Rs.10,456/-
S.B.Account of Pooja held at ICICI Bank, Chamarajepet Branch.
17. IBI-10 Interest Income credited to Rs.61,442/- 198
Spl.C.C. No. 428/2017 S.B.Account of AGO, account held at SBM, Mangalavarapet branch, Channapatna.
18. IBL-1 Loan income from ICICI Bank, Rs.14,00,000/-
Chamarajpet branch, availed by Smt.Prabhavathi.
19. IBL-2 Loan Income from ICICI Bank, Rs.7,00,000/-
Chamarajapet Branch, availed by Smt.Prabhavathi
20. IBL-3 Loan Income from LIC Housing Rs.1,41,096/-
Finance Limited, Bengaluru, availed by Smt.Prabhavathi.
21. IBL-4 Loan Income from Hanumagiri Rs.25,00,000 Souhardha credit Co.op. Society, Vinayaka Extension, Nagarabhavi
22. IBL-5 Loan income from ICICI Bank, Rs.3,00,000/-
Chamarajapet branch, availed by Smt.Prabhavathi
23. IPL-I Personal loan availed by Rs.15,00,000/-
Smt.Prabhavathi from
Sri.Premchand Hahuja.
24. IPL-2 Hand loan availed by Rs.29,00,000/-
Smt.Prabhavathi from
Sri.B.R.Tirumalai
25. ISA-1 Income received from sale of Rs.8,50,000/-
Tayota Qualies vehicle bearing Regn.No. KA-05-MN-222
26. ISA-2 Income received from sale of Rs.2,75,000/-
Hundai Santro Vehicle bearing Regn.No.KA.05.Z.3716
27. ISA-3 Income received from sale of Rs.50,00,000/-
immovable property situated in Sy.No.96/, 96/5, 96/6 and 96/8 total 35 guntas at Billpura village, Sarjapura hobli, Anekal Tq
28. ISA-4 Income received from sale of -0- property situated at No.6/1 Krubigal road, Mavally, Bengaluru
29. ISA-5 Income received from sale of 2,50,000/-
property at Municipal No.1/125- 199 Spl.C.C. No. 428/2017 26, 5th cross, Shamanna Garden, Guddadahalli, Bengaluru.
30. ISA-6 Income received from Sale of 1 Rs.10,00,000/-
acre 20 gunta in Sy.No.198 of Toremallanayakanahalli, Devalapura hobli, Nagamangala Tq.
31. ILIC-1 Income received from LIC Polices Rs.1,35,786/-
32. ILIC-2 Income received by Kum.Pooja Rs.1,20,000/-
from LIC policies.
33. ILIC-3 Income received by AGO from Rs.26,650/-
LIC Policies
34. ILIC-4 Income received by AGO from Rs.18,549/-
LIC policies
35. ILIC-5 Income received by AGO from 12,019/-
LIC policies
36. IBI Income received by AGO from Rs.1,96,397/-
KGID Policy
37. INC-I Amount received from maturity of Rs.7,400/-.
NSC Certificate by AGO
Total Rs.2,53,49,142.43
DISPUTED INCOME:
Sl.No.2] INCOME CODE-IA:
200. The Investigating Officer in his final report has stated that from the immovable property comprised in Sy.No.198 of Toremallayanakanahally, Devalapura Grama, Nagamangala Taluk, having an extent of 1 acre 15 guntas which stands in the name of wife of AGO and his family not grown any crops and not got any income and the Investigating Officer relies upon the report of the Officer of the Horticulture of Nagamangala Taluk, who 200 Spl.C.C. No. 428/2017 has given report that in Sy.No.198 no crops were grown and IO has also stated that even though the accused in his schedule has contended that himself and his family members got agricultural income of Rs.3,65,000/-, but the same is not supported by any documents and hence the IO has considered income from this property as Nil.
201. On the other-hand it is the specific contention of the accused that PW.1 who is the IO in his cross- examination has admitted that the wife of the accused has declared in ITR's that she received income from the said property and even the accused in his APR's also declared that from the said property he has got agricultural income and IO has not sought any information from the concerned agriculture Officer regarding the crops cultivated in the said property and the IO sought information from Horticulture Office and the AGO never claimed any income from Horticulture and considering the declaration made by AGO in his APR and declaration made by wife of AGO in her ITR's the agricultural income from the said property from 1997 till 201 Spl.C.C. No. 428/2017 2010 may be considered around Rs.3,65,000/-.
202. In respect of this contention the learned counsel for accused relied upon the decision of Hon'ble Apex Court in the case of Nirankar Nath Pandey Vs State of U.P. and others, wherein at para No.9 considering the facts of the said case on hand, the Hon'ble Apex Court held that income tax returns shall be presumed to be true and correct unless it is shown that they are forged and fabricated.
203. On the other-hand the learned Public Prosecutor has submitted that quantification of income in respect of this property as made by IO is proper and correct. DW.1 in his cross-examination has admitted that no documents in respect of leasing out the said property to Mr.Anand and no documents as to receipt of cash and crops from said Mr.Anand is produced and since there is no evidence as to cultivation of the said land by the AGO or his family members is on record, the contention of the AGO is not tenable.
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204. On careful perusal of the materials on record, it reveals that it is an undisputed fact that the above said property stands in the name of wife of accused. Further it is also an admitted fact that the RTC in respect of said property reveals that the said property is a dry land. Further it is an admitted fact no evidence is adduced by the accused which reveals that how the said dry land was improved by himself or his family members. Further no evidence is placed on record which reveals about the cultivation of the said land by the accused or his family members. Further no documents pertaining to the leasing out of the said property to Mr.Anand as deposed by accused is furnished. In his cross-examination at para Nos.68 to 89, the accused has stated that the said property was initially allotted to his father-in-law under Ex. Servicemen quota and according to him in 1997-98 itself he started to cultivate crops in the said property and in the said land he has cultivated Paddy, Ragi, Jower Watermelon and other fruits and in 1997-98 he has leased the said property to Mr.Anand and said Mr.Anand 203 Spl.C.C. No. 428/2017 paying cash of Rs.25,000/- annually along with portion of crops to him. He has admitted that in the RTC pertaining to said property the nature of the property is described as dry land and he admitted that in the crops coloum only Ragi is mentioned and at para No.82 he has stated that the expenses of cultivation of the said land was borne out equally by his wife and said Mr.Anand, said Mr.Anand was paying cash and crops to his wife and no documents were executed in respect of said understanding arrived between them and Mr.Anand.
205. The accused has also stated that the source of cultivation of the said land is water from the canal and he denied that he is falsely stating that he was cultivating four crops per year in the said land. At para-84 of his cross-examination, DW.1 has deposed that on trust and confidence only the said property was orally leased to Mr.Anand. He denied that as per the report of the Horticulture Officer no crops were cultivated in the said land and he pleaded ignorance that only in the ITR's for the assessment year 2009-2010 Agricultural Income is 204 Spl.C.C. No. 428/2017 shown as Rs.25,000/- and prior to that no ITR's regarding Agricultural Income is filed by his wife.
206. On careful perusal of the materials on record, it clearly reveals that it is the assertive contention of the accused that he has grown crops in the said property and hence received the agricultural income as declared in his APR's and in the ITR filed by his wife.
207. Admittedly, it is the burden upon the accused to establish that from the said property he received agricultural income. To substantiate it, the accused relies upon the declaration made in his APR's and ITR's filed by his wife as per Ex.P41 and 42. Admittedly no other documents were produced by the accused to substantiate his said contention. Even the accused has not chosen to examine his wife and said lessee by name Sri.Anand. No documents are produced as to receipt of cash and crops by said Anand as contended. Mere oral testimony of DW.1 that they used to cultivate the said land through Mr.Anand and received crops is not 205 Spl.C.C. No. 428/2017 sufficient. The Hon'ble Apex Court in the decision reported in (2017) 6 SCC 263 (State of Karnataka Vs J.Jayalalitha and others) at Head Note 'A' held that relying on Income Tax Orders/Returns comprehensively is not proper. It is further held that Income Tax orders and Returns, no doubt are admissible but these are not conclusive proof as to whether assets or income concerned are from lawful source as contemplated under Section 13(1) (e) explanation of P.C.Act. In the same decision at Head Note 'YY' the Hon'ble Apex Court further held that in respect of agricultural income, neither lessor nor person carrying on agriculture examined then the findings of the trial court which rejected the said income as legitimate is proper. The principles laid down by Hon'ble Apex Court as mentioned above is aptly applicable to this case also.
208. However, the learned counsel for accused has submitted that APR's filed by the accused is accepted by his higher authorities and ITR's filed by wife of AGO is also not disputed by Income Tax Authorities and hence 206 Spl.C.C. No. 428/2017 the agricultural income as declared in the APR of AGO and in the ITR filed by wife of AGO is to be considered and hence the total income of Rs.3,65,000/- may be considered as income of the accused from agriculture. However the learned Public Prosecutor has submitted that the APR's filed by accused is not accepted by the higher authorities of AGO and hence the said contention of the accused is not tenable. Mere declaration made in the ITR regarding agricultural income without substantiating the same is not sufficient to hold that the accused derive the agricultural income. Further it is relevant to note that Ex.P101 reveals that the AGO has not filed APR's in time and several notice and reminders and even show-cause notice is issued to him and even the higher authorities of AGO have instructed him to furnish documents regarding income derived from other sources and ultimately it reveals that the accused at once submitted his APR's and same has been taken on record by the higher authorities and there is no material on record which reveals that the said APR's belatedly filed by the accused were accepted by the higher authorities. As 207 Spl.C.C. No. 428/2017 rightly pointed out by learned Public Prosecutor the belatedly filed APR's of the accused is only taken on record.
209. As discussed above, since there are no documents as to receipt of crops and cultivation of land and for the reasons of non examination of lessor and alleged lessee and for want of evidence, the Court is of the opinion that the quantification of income as NIL by the IO in respect of this property is proper and correct. Sl.No.3- INCOME CODE-IR-1:
210. The IO in his final report has described this Sl.No.3 as rental income of Rs.10,58,972/- received by the AGO in respect of house No.22 and 22/1, 5th 'B' cross, Sarakki main road, J.P.Nagar 1st stage, Bengaluru. The IO has quantified the aforesaid income as rental income on the basis of ITR's filed by the AGO and not on the basis of any rent deeds or any other documents.
211. On the otherhand it is the specific contention of the AGO that PW.1 who is the IO admitted that accused has 208 Spl.C.C. No. 428/2017 declared rental income of Rs.16,66,000/- in his asset and liability statement as per Ex.P.116 and as per Ex.P39 IO has considered rental income at Rs.10,58,972/- which is not correct and hence the said amount of Rs.16,66,000/- may be considered as rental income instead of Rs.10,58,972/-. On the other-hand it is the specific submission of learned Public Prosecutor that the quantification made by the IO itself is wrong as there is no basis for the same as the IO solely relied upon the declaration made by AGO in APR's as per Ex.P.116 and ITR filed by the AGO which is not correct. According to learned Public Prosecutor, when Ex.P.116 and Ex.P.39 and Ex.P.71 were togetherly taken into consideration in respect of leasing out the same property, it reveals that for the same year in these APR's and ITR's, the AGO has mentioned monthly rent for the same house property differently. On careful perusal of Ex.P.116 Ex.P71 and Ex.P.39 it clearly reveals that as rightly pointed by learned Public Prosecutor in respect of the same house property in APR's and in ITR return and in his schedule the accused has stated the monthly rent of the said 209 Spl.C.C. No. 428/2017 property differently. The said fact is clearly admitted by AGO in his cross-examination.
212. On careful perusal of the evidence on record, it reveals that at para No.89 of his cross-examination DW-1 admits that he is not in possession of any lease deed which evidences about renting the property to the tenants. He further admits that except APR's and ITR's he is not in possession of the document which shows that he received rental income from the said property and he further admitted that there is difference of Rs.5,67,028/- rental income when the rental income shown by him in his APR and in his ITR's were compared. On careful perusal of the APR's filed by the accused it reveals that the accused has declared that he has received rental income of Rs.16,66,000/- from the above mentioned house and whereas for the same period he declared in his ITR that the rental income received by him is Rs.10,58,972/-. Admittedly, except copy of rental agreement dated 15-03-2013 and 18-01-2012, no other documents is before this Court to show that the said 210 Spl.C.C. No. 428/2017 property was given on rent by the AGO. However since the accused has made declaration in his ITR's and since the IO on his investigation found that the said house was given on rent, considering the said fact the court holds that quantification of income of Rs.10,58,972/- by the IO in this regard is to be accepted and accordingly the same is accepted.
Sl.No.4- INCOME CODE-IR-2:
213. The IO in his final report has quantified income of Rs.69,000/- which is the rental income received by AGO in respect of building situated in Sy.No.23, Gaddige road, Marattikyathanahally, Bogadi, Mysore. It is the specific case of the prosecution that the complex situated in the said property was given on rent/lease from 15-01-2014 to 28-05-2014 was taken into consideration and in this period the AGO has received Rs.69,000/- rent and Rs.4,50,000/- as security deposit and hence considering the rental agreement, the IO found Rs.69,000/- rental income was received during the period and hence the same may be considered as income of the accused. 211
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214. On the other-hand it is the specific contention of the accused that PW.1 in his cross-examination has admitted that the accused has received security deposit of Rs.4,50,000/- from the tenants and rental agreements executed by GPA holder of accused with the tenants clearly shows that accused has received Rs.69,000/- rent and Rs.4,50,000/-deposit and in total Rs.5,19,000/- which has to be considered as rental income during the said period.
215. During the course of arguments it is argued on behalf of the accused that PW.1 the IO in his cross- examination has admitted that the accused has received rental advance deposit of Rs.4,50,000/- from the tenants and the learned counsel for accused also relied upon Ex.P.40 and submitted that the AGO has executed GPA in favour of Sri.Ganesh and the said GPA holder of AGO executed rental agreement dated 01.01.2014 in favour of Marigowda and in favour of Sri.P.R.Ravi and Sri.T.S.Mahesh and Sri.B.Narayana in respect of shop 212 Spl.C.C. No. 428/2017 Nos.1 to 5 respectively and in total the AGO has received rental income of Rs.69,000-00 + Security Deposit of Rs.4,50,000-00 in total Rs.5,19,000/- and hence same may be accounted as the income of the AGO.
216. On the other hand it is the submission of learned Public Prosecutor that since the AGO has not intimated his higher authorities regarding construction of the building in the said purchased site and since the AGO has not obtained prior permission for construction of the building and also since the AGO has given false information to his higher authorities in his APR's, the AGO cannot claim the rental income as his income and since the AGO has not satisfactorily accounted for the said income by his known source of income, the same has to be considered as Disproportionate Asset. The learned Public Prosecutor has also argued that nondisclosure of these facts by AGO to his higher authorities attracts Section 13 (1) (e) of P.C. Act, since the AGO is in possession of the sad property for which he has not satisfactorily accounted and said property is 213 Spl.C.C. No. 428/2017 disproportionate to his known source of income.
217. On careful perusal of the materials on record, it reveals that it is an admitted fact that said site was purchased by AGO as per Ex.P.6 and the fact of purchase of said site is informed by AGO to his higher authorities. Page No.516 of Ex.P.33 reveals that building in the said site was constructed in the year 2012. Further, Ex.P.33 also reveals that the AGO himself applied for obtaining electricity connection to the said building in the year 2012. Ex.P116 the APR's filed by the accused reveals that in the year 2002 he has intimated his higher authorities regarding purchase of the above said site and page No.82, 84, 86, 88, 90, 92, 94, 96, 98, 101, 104, 107, 110 of Ex.P.116 reveals that in all said APR's the AGO has mentioned that the said site is vacant site. As mentioned above when Ex.P.33 itself reveals that the said building was constructed in the year 2012, the AGO has not informed the said fact of completion of construction of the building to his higher authorities in his APR's and it also reveals that AGO has not obtained prior 214 Spl.C.C. No. 428/2017 permission from his higher authorities for construction of the building. Even Ex.D3 MOU also reveals that the said building appears to have been constructed in the year 2012 itself. Hence it is evident from the records that the AGO has not sought prior permission of his higher authorities regarding construction of the building and also he has not intimated his higher authorities regarding completion of the said building. However, it is settled law that mere failure to disclose these facts by the AGO itself is not sufficient to attract criminal liability.
218. Further, Ex.P.40 the statement of GPA holder of AGO i.e., Mr.Ganesh reveals that the AGO has executed GPA in favour of said Mr.Ganesh on 04-03-2013, along with this statement, the copy of GPA and lease deeds which were executed subsequent to date of raid and prior to the date of raid also found place. When the said lease deeds which were executed prior to the date of conducting raid i.e. lease deeds executed during the check period is taken into consideration it reveals that in all AGO has received rental income of Rs.58,000/- only 215 Spl.C.C. No. 428/2017 during the check period and not Rs.69,000/-as quantified and reported by the IO. Even this aspect is clearly admitted by DW.1 in his cross-examination at para No.93 wherein he has admitted that " ಸದರಿ ಕಟ್ಟ ಡದ ಪರಿಶೀಲನಾ ಅವಧಿಯಲ್ಲಿ ಹಾಜರುಪಡಿಸಿರುವ ಬಾಡಿಗೆ ಕರಾರು ದಾಖಲೆಗಳ ಪ್ರ ಕಾರ ನಾನು ಪಡೆದ ಒಟ್ಟು ಬಾಡಿಗೆ ಹಣ ರೂ.58,000/- ಅಂದರೆ ಸರಿ". Therefore taking into consideration the copy of the rental agreement and the said admission of DW.1, there is no ambiguity to held view that during the check period from the aforesaid building the AGO has received rental income of Rs.58,000/- only and the same has to be considered as income of the AGO.
219. In this case the accused has contended that he has received security deposit of Rs.4,50,000/- from the tenants and the same needs to be considered as his income. However it is the contention of the prosecution that since no documents were produced by the accused regarding receipt of security deposit of Rs.4,50,000/-, the same cannot be considered as income of AGO. In general accounting and income tax principles in India, a 216 Spl.C.C. No. 428/2017 refundable rental advance amount (security deposit) is considered as a liability and not immediate income at the time of receipt. It is because there is an obligation of the landlord to return the money to his tenants. It is a security against future damages or unpaid rent and must be refunded, when the tenancy ends. Therefore it is treated as a liability on the balance sheet not immediate income. The said security amount becomes income if it is forfeited by the landlord due to breach of lease agreement or property damaged, it can be considered as income if it is specified in the Agreement itself that the said security amount will be adjusted against the falling months rents. If these clauses were exist in the lease agreement then it can be considered as advance rent and it becomes income. Therefore the money paid as a security deposit neither income when it is received nor an expenses when it is refundable. Admittedly in this case though the AGO has not furnished and got exhibited the lease deeds, taking into consideration the documents available on record, the court holds that the AGO has received rental income of Rs.58,000/- during the check period and in the 217 Spl.C.C. No. 428/2017 said copies of lease deed forfeiture clauses are not at all mentioned which is the basis for considering security deposit as income. Therefore the court negativates the contention of the accused to consider security deposit of Rs.4,50,000/- as income. For the reasons stated above, the court holds that only Rs.58,000/- to be considered as income of the AGO from the said property and not Rs.69,000/- as calculated by IO and therefore Rs.11,000/- needs to be deducted from the total income calculated by IO.
Sl.No.5- INCOME CODE-IR-1:
220. The IO in his final report has described this Sl.No.5 of Income as the income of Smt.Prabhavathi from Interior Decoration and Classic Beauty Parlor business and he has quantified at Rs.28,32,410/-. The IO has arrived the said conclusion on the basis of statement of Smt.Prabhavathi and ITR's filed by her.
221. On the other hand it is the contention of the accused that the wife of AGO by doing Interior Decoration 218 Spl.C.C. No. 428/2017 and by running Classic Beauty Parlor has got income of Rs.36,12,445/- which is evident from page No.345 on Ex.P.42 and ITRs filed by wife of AGO corroborate this aspect. In this regard the learned counsel for accused relied upon the decision in the case of B.T.Nagappa Vs State (2013) SCC OnLine Kar.6036 and submitted that it is the duty of the prosecution to ascertain the correctness or otherwise of the value of the properties furnished by the accused in schedule by collecting the evidence if necessary from the concerned persons and prosecution is supposed to mention the correct value of the property. In the case on hand, the materials on record reveals that the IO has summoned Smt.Prabhavathi to furnish the documents regarding her said business and it reveals that said Smt.Prabhavathi has not furnished details of the documents as sought by IO and the wife of AGO has furnished copy of a license which was issued in the name of Sri.Udayakumar. Hence, the aforesaid decision relied upon by learned counsel for accused is not helpful to the accused in this case.
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222. It is also argued on behalf of the accused that since ITRs filed by the Smt.Prabhavathi clearly reveals about the business income she got during the check period, the said income tax returns shall be presumed to be true and correct unless it is shown that they are forged or fabricated. In addition to it learned counsel for accused has submitted that the prosecution cannot dispute Ex.P.41 and 42 ITR's and prosecution cannot deny the admission of PW.1-IO since learned Spl.Public Prosecutor has not treated the IO as hostile witness and not cross- examined him in this regard and therefore the prosecution cannot dispute the admission of IO. Further the learned counsel for accused also submitted that as per Section 44 AD of and Income Tax Act, there is no need for the wife of the accused to furnish the documents like maintaining books of account and hence the contention of the prosecution is not tenable.
223. To further substantiate his said contention the learned counsel for accused has relied upon the decision reported in 2025 SCC OnLine ITAT 12465 Hanif Osman 220 Spl.C.C. No. 428/2017 Ravda Vs ITO Ward 2 (3), wherein the income tax Appellate Tribunal held that under Section 44D of the Income Tax Act, production of books of accounts are not required and they are not required to be maintained. The learned counsel for accused also relied upon the case of Bhawani Shankar Gupta v. ITO (2023) and submitted that there is no need to maintain books of account in case normal cash business. On the other-hand the Learned Public Prosecutor has argued that the wife of AGO is not examined in this case and as admitted by accused in his cross-examination his wife has not taken any special training to run beauty parlor as well as Interior decoration business and there is no evidence on record which reveals that who gave her capital to run the business and who spent amount, who gave order for her business and how much amount she invested and how much payment she received and who are the employees of her and how she paid security to her employees and no account statement is furnished and therefore the fact of running of said business by wife of accused is far from truth.
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224. It is also argued by learned Public Prosecutor that, in order to do Interior Decoration business one person should have specific knowledge and qualification and on imaginary basis no one can do such business. Further the licence issued in the name of Classic Beauty Parlor is not in the name of Smt.Prabhavathi and even after IO sought clarification from AGO and his wife and they have not furnished required document to the IO and the calculation made by IO that from business of wife of AGO they got income of Rs.28,32,410/- is without any basis and the same has to be discarded and nil income to be considered from this head.
225. On careful perusal of the materials on record, it reveals that as rightly pointed out by learned Public Prosecutor, no documents were placed before the court which reveals that Smt.Prabhavathi was doing beauty parlor business and interior decoration business. Admittedly no business account, no current account details were furnished. DW.1 in his cross-examination has deposed that from the year 1992-93 itself his wife 222 Spl.C.C. No. 428/2017 was doing Interior Decoration business and from 2007- 2008 she run beauty parlor business and both business were carried out in her name only. However no licence to run the said Classic Beauty Parlor in the name of Smt.Prabhavathi is issued and one which is placed before the court is in the name of Sri.Udayakumar who appears to be unconnected with AGO. Further it is an admitted fact the AGO has not examined said Smt.Prabhavathi and not chosen to examine said Sri.Udayakumar to further substantiate his contention. Even in his cross- examination the accused has clearly admitted at para-96 that his wife has not possessed any business account for the said business and only rough book was maintained regarding business transaction. However,the accused contends that all such business transactions were reflected in the ITR filed by his wife. In his cross- examination at para No.35 to 37 the accused has clearly admitted that his wife has not obtained licence from BBMP to run beauty parlor and she has not taken any special training in this regard and he pleaded ignorance about the number of workers working in her beauty 223 Spl.C.C. No. 428/2017 parlor. He pleaded ignorance about the total income derived out from the said business.
226. The materials on record reveal that the learned counsel for accused is relying upon Section 44 AD of Income Tax Act and further he relies upon the declaration made in the ITR as per Ex.P41 and 42. The Hon'ble Apex Court in the case of State of Karnataka Vs. J.Jayalalitha and others (2017) 6 SCC 263 held that Income tax orders and returns, no doubt are admissible but these are not conclusive proof as to whether assets or income concerned are from lawful source as contemplated under Section 13 (1) (e) explanation of Prevention of Corruption Act. It is further held that income tax assessment proceedings are directed only to quantify taxable income and orders passed therein it and no authentication source as lawful and these are not relevant for proving a charge under Section 13 (1) (e) of Prevention of Corruption Act. It is settled law that mere filing of Income tax returns and they being accepted by the IT Department is not a complete defence in a 224 Spl.C.C. No. 428/2017 disproportionate asset case under P.C.Act. There must be a substantial explanation and documentary proof that the assets were acquired through lawful income.
227. Section 44 AD of Income Tax Act, contemplates regarding special provision for computation of profits and gain of business on presumptive basis. The careful reading of this provision reveals that Section 44 AD of the Income Tax Act, is presumptive taxation scheme for small business, but it does not provide blanket immunity against investigation into Disproportionate property assets cases. The source of income must still be legitimate and explainable if challenged in a Disproportionate cases especially for public servant. Section 44 AD designed to simplify tax as compliance for small resident tax payers. When a business turn over below a specified threshold for example 3 crore subject to condition simply using presumptive scheme does not prevent the tax authorities or Investigative agency from scrutinizing unexplained cash credit or expenditure under Section 68 and 69 of IT Act, if they have 225 Spl.C.C. No. 428/2017 independent evidence of wrong doing or if the transaction have no nexus with the declaration gross receipts.
228. Section 44 AD offers a simplified way to declare business income, it does not exempt tax payers explaining the source of specified as the cash deposit or asset accusation particularly in a case of this nature. In a disproportionate asset case the burden of proof is on the accused to satisfactorily account for property or pecuniary resources that are about their known legal source of income. Previously under Section 44 AD of Income tax Act the turn over limit was fixed at Rs.40 lakhs and thereafter the latest amendment introduced by the Finance Act 2023 it was enhanced from 2 Crore to 3 Crore. Section 44 AD allows small business to declare income of minimum rate without maintaining details book of account. An assessee opting for Section 44AD is generally not required to explain individual cash deposit if they are part of the gross receipts held declared under the presumptive scheme.
229. As mentioned above in this case the accused has 226 Spl.C.C. No. 428/2017 not furnished any documents which reveals that his wife was doing aforesaid business as contended. In the absence of any acceptable evidence, there is no ambiguity to hold the view that wife of the accused was not doing said business and she got no business income as contended. Non examination of Smt.Prabhavathi to substantiate the said contention of accused, amounts to withholding of best evidence, and hence an adverse inference has to be drawn in this regard. It is surprised to note that IO on which basis quantified that the wife of AGO had the business income of Rs.28,32,410/-. It appears that IO has only relied upon ITR's filed by Smt.Prabhavathi and as discussed above only relying upon ITR the income of wife of AGO cannot be determined and quantified. Now the question arose for consideration is whether the court can discard the estimation made by the IO or not. It is pertinent to note that final report filed by the IO is nothing but an opinion expressed by the IO and it is not binding upon the court as to evaluate the documentary and oral evidence on record and the court has to arrive at conclusion and the 227 Spl.C.C. No. 428/2017 court cannot solely rely upon the final report of the IO. It is settled law that IO's assessment is not final and it is subject to the courts scrutinizing and evaluation during the legal proceedings. The court has the power to sift and weigh the evidence presented to determine the correct income and asset value. By considering the evidence adduced during the trial the court can examine reduce or set aside the income assessment made by IO. Therefore in this case, by considering the materials on record this Court is of the opinion that assessment made by the IO that Smt.Prabhavathi had income of Rs.28,32,410/- from the said business is without any basis, since the evidence on record reveals that those business appears to have not seen the light of the day itself. Therefore the court holds that said amount of Rs.28, 32, 410/- needs to be deducted from the total calculation of the income as made by the IO. Sl.No.6- INCOME CODE-IB-2:
230. The IO in his final report at Sl.No.6 described income code IB-2 as the income of Sri.S.Sandeep S/o 228 Spl.C.C. No. 428/2017 Srinivasamurthy and he has quantified the income derived from business of son of AGO during the check period as Nil. The IO has based his calculation on the basis of Ex.P118 the statement given by said Mr.S.Sandeep to the IO. In the final report, the IO has also stated that in the ITR's filed in the name of said S.Sandeep, it is declared that during the check period he has earned income of Rs.10,96,750/- and on enquiry it is came to know that said Sandeep has completed his education only in the year 2012 and according to the IO in support of the said income claimed, no documents were furnished and hence the income as declared in the said ITR filed in the name of son of AGO is not considered.
231. On the other-hand it is the specific contention of the accused that, as per ITR filed by his son during the check period his son's income is Rs.12,53,630/- and it is the contention of the accused that his son was earning while he was learning and while doing BCA and MCA and hence the calculation made by the IO is not correct. 229
Spl.C.C. No. 428/2017 Hence the accused requested to consider the income of his son as Rs.12,53,630/-.
232. Admittedly, it is the burden upon the accused to substantiate that even though till 2012 his son was studying, during that time he was earning. To substantiate this aspect the accused himself examined as DW.1, he has also examined his son S.Sandeep as DW.3 and also furnished Ex.D9 ITR's filed on behalf of D.W.3.
233. In his examination-in-chief DW.3 has deposed that during the college days he was doing Freelance work and he used to make Graphic Design, Website Design, Software training and earning income and he used to deposit the same in his savings bank account and these income is reflected in the ITR's filed as per Ex.D.9. However in his cross-examination made by learned Public Prosecutor he has admitted that all his educational expenses borne out by his parents and he admitted that he was not doing any such photo addition, reporting video editing work in any office. However DW.3 has deposed that he used to work at Cybercafe and also at 230 Spl.C.C. No. 428/2017 College computer lab and at his friend's house and earning income. Said explanation given by DW.3 regarding earning income by doing said work at these places is not at all believable. Further DW.3 himself has admitted that he does not possess any documents which further substantiate that by doing freelance work and other work he used to earn money. DW.3 has further admitted that he started to run a Company by name Purple Hue Techno-soft Private Limited and Igor Interactive Media Pvt.Ltd, and in this regard Memorandum of Association and Articles of Association work prepared and from April 2013 he started to run those companies. When Ex.P-118 Statement is confronted to him, DW.3 has admitted the contents of the same and he admitted that as stated in the said statement from 2009-2010 till 2012-2013 he has not done any business. Even Ex.D-9 the ITR's also reveals that only calculation list is furnished without any details as to the transaction or business details from which the son of AGO earned income as declared.
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234. D.W.3 also deposed that his grandfather has gave Rs.6,00,000/- to him to purchase a Car and he has received the said amount in the year 2009 and his grandfather sold the property in the year 2004. According to DW.3 by selling the said property his grandfather received sale consideration of Rs.40-50 lakhs. However when Ex.P-54 the Sale Deed executed by his grandfather is shown to him, DW.3 admitted that as per the recitals of Ex.P-54 the same was sold for Rs.9,50,000/-only. Now a doubt arises whether the DW.3 is deposing truth before the Court or not? It is because the AGO himself claims that after selling the said property as per Ex.P54, his father gave him Rs.8,00,000/- and whereas DW.3 claims that by selling the said property his grandfather gave him Rs.6 lakhs. When the property itself sold for Rs.9,50,000/- how DW.1 can get Rs.8 lakhs and DW.3 got Rs.6 lakhs is not clearly explained by DW.1 and DW.3. Therefore doubt arises regarding the explanation given by these witnesses in respect of receipt of money from Sri.Subramanya Sastry. 232
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235. During the course of arguments learned Public Prosecutor has submitted that the calculation made by IO is correct since till 2012, DW.3 was a student and has no independent source of income and only at the fag-end of 2013-14 he started business and hence there is no income earned by DW.3. On the other-hand learned counsel for accused has submitted that during the college days DW.3 started to earn and the declaration made in the ITR's needs to be accepted and as per Section 44 AD of Income Tax Act, there is no necessity for DW.3 to keep and produce documents and therefore the income declared in ITR may be considered. Section 44 AD of Income Tax Act, contemplates regarding special provision for computation of profits and gain of business on presumptive basis. The careful reading of this provision reveals that Section 44 AD of the Income Tax Act, is presumptive taxation scheme for small business, but it does not provide blanket immunity against investigation into Disproportionate property assets cases. The source of income must still be legitimate and explainable if challenged in a Disproportionate cases especially for 233 Spl.C.C. No. 428/2017 public servant. Section 44 AD designed to simplify tax as compliance for small resident tax payers. When a business turn over below a specified threshold for example 3 crore subject to condition simply using presumptive scheme does not prevent the tax authorities or Investigative agency from scrutinizing unexplained cash credit or expenditure under Section 68 and 69 of IT Act, if they have independent evidence of wrong doing or if the transaction have no nexus with the declaration gross receipts.
236. Section 44 AD offers a simplified way to declare business income, it does not exempt tax payers explaining the source of specified as the cash deposit or asset accusation particularly in a case of this nature. In a disproportionate asset case the burden of proof is on the accused to satisfactorily account for property or pecuniary resources that are about their known legal source of income.
237. As discussed above an income source in an ITR cannot be automatically believed in the absence of 234 Spl.C.C. No. 428/2017 documentary proof. The ITR filing process is largely based on self assessment and trust. It does not mean the claims are accepted as fact without potential verification. In legal proceedings the ITR is considered as public documents and it is admissible in evidence but the claims made within it needs to be substantiated with proper documentation to hold weight. ITR assessment do not inherently certified as source of income as lawful and its further authenticity required in cases of Disproportionate assests.
238. As discussed above even though DW.3 has declared in his ITR's that during the relevant period from 2010-2011 till 2014-15 he earned an income of Rs.12,53,630/-, the same is not substantiated by producing relevant oral or documentary evidence. Mere declaration in ITR is not sufficient and it is true that the entries in ITR needs to be accepted unless they are specifically disproved or proved to be false. In this case admittedly DW.3 was student till 2012 and during his tenure of the college, how such huge amount is credited to his bank account is not properly explained and proved 235 Spl.C.C. No. 428/2017 by DW.1 and DW.3. Therefore under such circumstances this court holds that the calculation made by IO that during the said check period son of the AGO not had any income is proper and correct and same needs to be accepted and the contention made by AGO in this regard is hereby rejected.
Sl.No.7- INCOME CODE-IB-3:
239. In the final report the IO has mentioned Income Code IB-3 and described it as the Salary Income of Kum.Pooja D/o Srinivasamurthy and quantified it at Rs.1,24,976/-. The IO based his calculation on the basis of the Salary particulars obtained from Infosys Company and the statement of Miss.Pooja. In the final report the IO has also stated that DW.2 Miss.Pooja joined to Infosys Company only on 30-09-2013 and till 29-05-2014 she received total salary income of Rs.1,24,976/- and hence the same is considered as Income of AGO. Investigating Officer has further explained that even though in her ITR's Miss.Pooja has declared that from tuition fee she received Rs.4,20,726/-, she has not furnished the documents in support of said claim and hence he has not 236 Spl.C.C. No. 428/2017 considered it.
240. On the otherhand it is the specific contention of AGO that IO has intentionally not considered the tuition fee shown in the ITR filed by his daughter. According to the accused as declared in the ITR filed for the year 2011- 2012 to 2013-2014 his daughter had earned income of Rs.2,16,890/-,2,58,010/- and Rs.2,85,430/- respectively, in total Rs.7,60,330/- and the same needs to be considered and hence he requested to consider the income of his daughter under this income head at Rs.7,60,330/- instead of Rs.1,24,976/-. It is also the contention of the accused that as per Ex.D.10 ITR's filed by his daughter and as per the evidence of DW.2, income of his daughter has to be considered which is intentionally omitted by IO. In addition to it, learned counsel for accused has further reiterated that as per Sec.44 AD of I.T. Act, there is no obligation to produce the document in support of tuition given by his daughter and also since the ITR's declaration is genuine and since it was accepted by Income Tax Authorities the 237 Spl.C.C. No. 428/2017 prosecution cannot question the same. It is also argued by learned counsel for accused that even the IO in his cross-examination has admitted these aspects and therefore above said income of his daughter may be considered.
241. On the other-hand learned Public Prosecutor has submitted that DW.2 Miss.Pooja has not furnished any documents which reveals that she earned so much amount during her college days and student life itself and the calculation made by IO is proper and correct and hence on behalf of prosecution it is prayed to accept the calculation made by IO.
242. On careful perusal of the materials on record it reveals that the accused has got examined his daughter Miss.Pooja as DW.2. Said DW.2 in her evidence deposed before the Court that from 2009 itself she started to teach Bharathanatyam to students and from each student monthly she used to collect Rs.1,200/-. In her cross-examination DW.2 has stated that she used to take 238 Spl.C.C. No. 428/2017 Bharathanatyam Classes in her house itself and she has admitted that she has not produced any documents to show that from 2009 she was teaching Bharathanatyam. According to her due to said avocation she used to earn Rs.25,000/- per month and she used to credit the same in her bank account maintained at ICICI Bank, Jayanagar Branch. She has admitted that during the raid the police have not seized any documents pertaining to the dance classes said to have been run by her. She has admitted that Ex.P-117 is the Statement given by her to the IO wherein she has stated that from 2011 she used to teach Bharathanatyam. She has admitted that in Ex.P-117 she has stated that from each student she used to collect Rs.200 to Rs.500/- per month. Further she admitted that she also had S.B.Account at Channapatna ICICI Bank and she never resided at Channapatna. She has admitted about various amounts deposited to her account at ICICI Bank, Channapatana on different dates.
243. The entire analysis of oral evidence of DW.2 and documentary evidence on record including Ex.P-31 and 239 Spl.C.C. No. 428/2017 Ex.D.10, it clearly reveals that DW.2 has not furnished any document before the Court to show that prior to joining Infosys in the year 2013, she was teaching Bharatanatyam and thereby she was earning. Further a doubt arises when DW.3 is permanently residing at Bengaluru, why she opened an account at Channapatna of Ramanagara District?. It is true that DW.3 has deposed that her father was working at that relevant point of time at Channapatna. Even if the evidence of DW.2, to some extent is accepted then it is unclear why she deposited amount regularly at her account maintained at ICICI Bank, Channapatna, when she has other savings account at Bengaluru. These questions were unanswered and unexplained by AGO and DW.2. It is true that Ex.P-31 the account statement and Ex.P- 117 statement of DW.2 reveals that DW.2 joined to Infosys Company only on 30.09.2013. IO has collected the salary particulars of DW.2 from Infosys which clearly reveals that during the check period she received salary of Rs.1,24,976/- and admittedly the said amount has to be considered as income of daughter of the accused 240 Spl.C.C. No. 428/2017 during the relevant point of time. However in-respect of declaration made in the ITR, to substantiate the same that by tuition fee daughter of accused earned around Rs.7,00,000/- as contended is not proved by the AGO. In her examination-in-chief DW.2 has stated that she used to charge Rs.1,200/-per student and she was teaching Bharathanatyam from 2009 itself. However as admitted by her in her cross-examination and as stated by her in Ex.P.117 she started to teach Bharathanatyam from 2010-2011 and she used to charge Rs.300/- to Rs.500/- per student. Even when the said admitted tuition fee is taken into consideration and compared with the account statement of DW.2, it does not tally with the declaration of income as made in Ex.D-10 ITR's and it creates a doubt and since there is no supportive, no corroborative documents were furnished by DW.2 and accused, it is hard to believe that during her college days and prior to joining Infosys Company DW.2 was earning amount as mentioned in the ITR's.
244. So far as the declaration made in the ITR's is 241 Spl.C.C. No. 428/2017 concerned, since prosecution has successfully proved that during the relevant point of time DW.2 was student and since the declaration of income as made in the ITR is not substantiated by production of required document, the court is of the opinion that the computation made by IO in this regard is proper and correct. Regarding contention of the accused in respect of Income Tax Act is concerned, Section 44 AD of Income Tax Act, contemplates regarding special provision for computation of profits and gain of business on presumptive basis. The careful reading of this provision reveals that Section 44 AD of the Income Tax Act, is presumptive taxation scheme for small business, but it does not provide blanket immunity against investigation into Disproportionate property assets cases. The source of income must still be legitimate and explainable if challenged in a Disproportionate cases especially for public servant. Section 44 AD designed to simplify tax as compliance for small resident tax payers. When a business turn over below a specified threshold for example 3 crore subject to condition simply using 242 Spl.C.C. No. 428/2017 presumptive scheme does not prevent the tax authorities or Investigative agency from scrutinizing unexplained cash credit or expenditure under Section 68 and 69 of IT Act, if they have independent evidence of wrong doing or if the transaction have no nexus with the declaration gross receipts.
245. Section 44 AD offers a simplified way to declare business income, it does not exempt tax payers explaining the source of specified as the cash deposit or asset accusation particularly in a case of this nature. In a disproportionate asset case the burden of proof is on the accused to satisfactorily account for property or pecuniary resources that are about their known legal source of income.
246. Hence taking into consideration these facts, the Court is of the opinion that under this income head computation made by IO that the salary income of Rs.1,24,976/- only to be considered as income of the daughter of the AGO is proper and correct and hence the contention urged by learned counsel for accused in this 243 Spl.C.C. No. 428/2017 regard is required to be negativated and accordingly same is negativated.
Sl.No.28- INCOME CODE-ISA-4:
247. Under this income head, in the final report the IO has considered sale of property bearing No.36/1 situated at Krabigal road, Mavahalli, BBMP ward No.61 Bengaluru owned by father of AGO by name Sri.Subramanyasastry and IO has considered Nil income from the sale of the property. In the final report the IO has stated that in the schedule AGO has contended that his father sold the said property for Rs.9,95,000/- and out of which Rs.8,00,000/- was given to him as gift. Since no documents were furnished in support of the said claim, the IO has not accepted the said explanation given by the AGO.
248. However, it is the specific contention of the accused that only to deflate his income the IO has not considered the said gift of Rs.8,00,000/- made to him by his father. It is also the contention of the accused that after selling said property his father gave Rs.8,00,000/- to him and 244 Spl.C.C. No. 428/2017 said Rs.8,00,000/- needs to be considered as his income. On careful perusal of the materials on record, it reveals that there is no dispute that as per Ex.P-54 the aforementioned property was sold by Sri.Subramanyasastry infavour of Smt. Thulasi and sale consideration is Rs.9,95,000/-. It is the specific contention of the accused that he has received Rs.8,00,000/- from his father as a Gift. It is pertinent to note that the AGO had sisters and brothers. There is no evidence on record which reveals that after Sale of the said property whether any amount was given to siblings of AGO or not?. It is relevant to note that the sale consideration mentioned in Ex.P-54 Sale Deed is Rs.9,95,000/-. It is relevant to note that the AGO claims that after sale of the property he received Rs.8,00,000/- from his father. However DW.3 Mr.Sandeep who is son of the accused deposed before the court that his grandfather Subramanyasastry give him Rs.6,00,000/- after selling the aforementioned property. Even DW.2 Miss.Pooja also deposed before the court that her grandfather also gave some amount to her. When DW.1 245 Spl.C.C. No. 428/2017 claims that he received Rs.8,00,000/- and DW.3 claims he received Rs.6,00,000/- from Subramanyasastry and when the property is sold only for Rs.9,95,000/-, whose version has to be believed. Apart from this, DW.1 in his cross-examination at para No.110-111 clearly admitted that regarding receipt of alleged gift of Rs.8,00,000/- from his father he has not intimated to his higher authorities and even he has admitted that in Ex.P-116 in his APR he has not mentioned the same. He has admitted that he had 5 brothers and two sisters and he denied that since he has brothers and sisters there is no chance of him alone getting Rs.8,00,000/- as gift. Page No.26 of Ex.P-69 also reveals that the above mentioned property was sold for total consideration of Rs.9,95,000/- and the aforesaid documents and evidence on record clearly reveals that the accused has failed to substantiate that he has received Rs.8,00,000/- by way of gift from his father after sale of above mentioned property as contended. All these facts are evident from version of D.W.1 and DW.3 and Ex.P-54, Ex.P-69, Ex.P-116 on record. Hence the contention of the accused made in this 246 Spl.C.C. No. 428/2017 regard is hereby negativated and the court holds that the calculation made by IO that NIL income is received by AGO from this property is proper and correct.
249. In view of aforesaid discussion regarding the disputed income of the AGO and his family members, the court for the aforesaid reasons holds that Rs.11,000-00 (Income Serial No.4)and Rs.28,32,410.00 (Income Sl.No.5), in total Rs.28,43,410.00 is to be deducted from the income of Rs.2,53,49,142.43 as assessed by the IO. Hence the total income of the accused and his family members during the check period is to be considered as Rs.2,25,05,732.43.
250. During the course of arguments the learned counsel for accused has further contended that the Investigating Officers in this case have not conducted proper investigation and they have deliberately left some income of the accused and PW.1 and other IO's have admitted these facts in their cross-examination and according to the learned counsel for accused the following 247 Spl.C.C. No. 428/2017 are left out income of the accused viz., Left out Income No.1: Sale of site No.25 and 26 with Corporation No.1:1
251. It is the specific contention of the accused that as per Ex.D-4/Ex.P-56 his wife sold the site No.25 and 26 with Corporation No.1:1 situated at Guddadahally, Shamanna garden, 5th cross, Bengaluru for Rs.2,52,000/- and this amount is declared by wife of AGO in her ITR filed for the year 1997-98 and inspite of this IO has not considered this income of Rs.2,52,000/- only to deflate the value of the income source and hence requested to consider this as additional income or left out income. On careful perusal of the materials on record, it reveals that there is no doubt that the aforementioned property is sold by wife of AGO which is evident from Ex.D-4 on record. However it is pertinent to note that IO at Sl.No.29 Income code ISA-5 has considered the sale consideration of Rs.2,50,000/- received by wife of AGO after selling aforementioned property as income. When the IO has already considered the sale consideration amount of the aforesaid property as income, question of 248 Spl.C.C. No. 428/2017 considering again it as left out income does not arise at all. Hence the said contention of the accused is not tenable and accordingly the same is hereby rejected. LEFT OUT INCOME-2 -Bank, Post office and other interest income of wife of AGO as per IT Return:
252. It is the specific contention of the accused that in addition to business income the wife of accused has got income by way of interest from Bank and post office. In IT Returns as per Ex.P41 from 1997-98 till 2013-14 it comes to Rs.4,64,972/-. Admittedly to substantiate this aspect no piece of document is furnished by the accused. The claim of the accused is only based upon the declaration made in the ITRs that too without any corroboration. As mentioned above when the accused has failed to substantiate that his wife was doing the business as contended and since the accused has failed to produce documents in support of running the said business as contended, in the absence of relevant evidence there is no ambiguity to hold the view that contention made by accused in this regard that said amount has to be considered as additional income is 249 Spl.C.C. No. 428/2017 without any basis. Hence the said contention is negativated. As mentioned above, the income, mentioned in the ITRs cannot be automatically believed to be income in the absence of documentary proof. Hence taking into consideration these facts and anology, the court holds that additional income or left out income as claimed by the AGO under this head is not substantiated as per law and hence the same is accordingly rejected.
253. In view of afore said discussion the Court holds that the total income of the accused and his family members during the check period is Rs.2,25,05,732.43. Hence for the aforesaid reasons and in-view of the said discussions and after taking into consideration the evidence and materials on record the Court recalculates the Assets, expenditure and Income of the accused during the check period as below mentioned, in comparison with the calculation made by IO and accused.
250
Spl.C.C. No. 428/2017 As per IO As per AGO As per calculation of the Court.
1. Asset 2,54,11,308.21 1,59,047.87-00 2,54,11,308.21
2. Expenditure 1,21,38,145.16 92,72,332-00 1,05,13,070.16
3. A+E 3,75,49,453.37 2,51,77,119-00 3,59,24,378.37
4. Income 2,53,49,142-43 3,09,66,065-00 2,25,05,732.43
5. DA 1,22,00,310.94 No 1,34,18,645.94 Disproportionate Assets 6 Percentage 48.13% Income is excess 59.62
254. As mentioned above, as per the calculation made by the Court on the basis of the evidence on record the assets plus expenditure of the accused and his family members during the check period is 3,59,24,378.37 and whereas the income of the accused and his family members during the check period is Rs.2,25,05,732.43 and the DA is Rs.1,34,18,645.94 which means the percentage is 59.62. It is evident that while assessing and quantifying the expenditure and income, the IO has committed the mistake and it is one of the rare case, wherein the disproportionate assets as assessed by the Court on the basis of evidence on record is more than what assessed by the IO. It is settled law that the Court 251 Spl.C.C. No. 428/2017 has the ultimate responsibility to determine the truth and is not bound by the Investigating officers opinion. The Judge must apply his judicial mind to the entire material placed on record during the trial.
255. The design and purport of Section 13 (1) (e) of Prevention of Corruption Act 1988, is that the primary burden to bring home the charge of criminal misconduct there under would be indubitably on prosecution to establish beyond reasonable doubt that public servant either himself or through any one-else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known sources of income and it is only on discharge of such burden by prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of such offence. In the present case the materials on record reveals that the prosecution has successfully proved the foundational facts.
256. During the course of arguments the learned public 252 Spl.C.C. No. 428/2017 prosecutor has submitted that the burden is cast on accused not only to offer plausible explanation as to how he come to acquire the disproportionate wealth but also satisfy court that his explanation is worthy of acceptance. The learned public prosecutor has further relied upon the decision of Hon'ble High Court of Karnataka, Bengaluru in Crl.Appeal No.996/2011 ( Mr.E.D.Prasad vs State of Karnataka ) and submitted that since the accused has not produced suitable and proper documents in support of his various contentions, the defence of the accused cannot be taken into consideration at all. Further the learned Public Prosecutor has also relied upon the decision of Hon'ble Apex Court in SLP (Crl) No.5476/2006 ( N.Ramakrishnaiah (dead) through Lrs vs. State of A.P.) and submitted that the expression known source of income has undergone a radical change and now the prosecution is relieved of the burden of investigating into source of income of an accused to a large extent, as it is stated in the explanation that known source of income means income received from any lawful sources, the receipt of which has been intimated in accordance with 253 Spl.C.C. No. 428/2017 the provisions of any law, rules or orders for the time being applicable to a public servant. The principles laid down in above said decisions are aptly applicable to the present case on hand.
257. On the other-hand during the course of arguments the learned counsel for accused has relied upon the decision of Hon'ble Apex Court in 1977 (1)SCC 816 ( Krishnanand Agnihotri vs State of MP) and submitted that even if the excess assets were comparatively small i.e. 10% of total income in the case, it would be right to hold that the assets found in the possession of the accused were not disproportionate to his known source of income raising the presumption under Section 13 (1) (e) of Prevention of Corruption Act 1988, by considering the principle to extend benefit of doubt, due to inflationary trend in the appreciation of value of the assets. However, the said decision is not helpful to the accused in this case, since this court on recalculation found that the disproportionate assets possessed by the accused is Rs.1,34,18,645.94 which is 59.62% and it is not 254 Spl.C.C. No. 428/2017 comparatively small as contended by the accused.
258. The learned counsel for accused again and again submitted that the IO has admitted the defence of the accused during his cross-examination and therefore the prosecution has failed to prove the case beyond reasonable doubt. It is also argued on behalf of the accused that IO has taken certain items without any base and value and exorbitantly inflated the value of assets and expenditure and deflated the value of income items and also ignored income shown as additional income even though the accused has got income from his lawful sources. As already discussed above the final report filed by the Investigating Officer is not binding upon the Court and the Investigating Officers assessment is not final and it is subject to the courts scrutinizing and evaluation during the legal proceedings. The court has the power to sift and weigh the evidence presented to determine the correct income, expenditure and assets. Even while considering the admission made by a witness, the court has to consider the nature and materiality of such 255 Spl.C.C. No. 428/2017 admission and the context in which the admission was made. It is settled law that any oral evidence which is contrary to the documentary evidence on record cannot be considered for any purpose. Investigating officers admission of defence case is not binding on the Courts. The Court is empowered to independently evaluate all evidence during the trial. The Investigating Officers opinion is only one part of the overall evidence. Therefore, as held above, this Court is of the opinion that the contention of the accused that PW.1 has admitted the defence of the accused is not at all a tenable contention.
259. As discussed above, mere acquisition of property will not constitute an offence under the provisions of Prevention of Corruption Act, 1988, but its failure to satisfactorily account makes the possession offending. In the present case on hand the prosecution beyond reasonable doubt succeeded in proving the fact that the accused has possessed the property or resources, which are disproportionate to the known sources of his income and the accused has failed to satisfactorily account for it. 256
Spl.C.C. No. 428/2017 Hence, on overall analysis of evidence on record, this Court holds that during the check period the accused was found in possession of property worth Rs.1,34,18,645.94 (59.62%) disproportionate to his known source of income (which is more than the assessment and calculation made by Investigating Officer) for which he could not satisfactorily account and hence the Court further holds that the accused has committed an offence defined under Section 13 (1) (e) punishable under Section 13 (2) of Prevention of Corruption Act and accordingly the Court proceeds to answer Point No.2 in the Affirmative, in the above said terms.
260. POINT NO.3:- In view of the aforesaid Affirmative findings on point Nos.1 and 2, the Court proceed to pass the following:
ORDER Acting under Section 235 (2) of Cr.P.C. the accused is hereby Convicted of the offences punishable Under Section 13 (1) (e) r/w 257 Spl.C.C. No. 428/2017 Section 13 (2) of the prevention of Corruption Act, 1988.
In the result the bail bond and the surety bond of the accused shall stand hereby cancelled.
Call on for hearing on sentence.
(Dictated to the Stenographer, transcript thereof, and then corrected, signed and pronounced by me in the open Court on this the 23rd day of January 2026).
(PRAKASH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & LOKAYUKTHA SPECIAL JUDGE, BENGALURU CITY.
ORDER ON SENTENCE Heard both sides and the accused in respect of quantum of sentence to be imposed.
2. The Learned Public Prosecutor has submitted that the offences alleged against the accused are proved beyond reasonable doubt and considering the conduct of the accused, gravity of offence, effect of the offence on 258 Spl.C.C. No. 428/2017 economic system of the country, stringent punishment may be awarded and also she prayed for imposing maximum fine.
3. Accused has submitted that lenient view may be taken.
4. The Learned Counsel for accused has submitted that accused is suffering from ill-health, he is a diabetic patient and he has heart ailment and also suffering from back pain and the learned counsel for the accused also requested to consider that the accused has no criminal antecedents and the Court may consider the entire facts and circumstances of the case on hand and sought to take lenient view in the matter of sentence and he further submitted that the offence alleged is prior to amendment of P.C. Act and hence prayed for awarding minimum sentence as permissible under law.
5. Admittedly the Provisions of the Probation of Offenders Act, are not applicable to the Cases covered under the Prevention of Corruption Act. In the matter of imposing sentence the Court has to consider the aggravating and mitigating circumstances, gravity of the 259 Spl.C.C. No. 428/2017 offence, the purpose of the punishment being imposed, effect and impact of offence committed on the society and the facts and circumstances of the case, under which the offence took place. The important aspect of socio-
economic offences is also to be emphasized with the gravity of the harm caused to the society.
6. The Hon'ble Apex Court in AIR 2013 SC 1682 ( Niranjan Hemechandra Sashittal & Another Vs State of Maharashtra) at Para No.20 held that- "It can be stated without any fear of contradiction that Corruption is not to be judged by degree". The Hon'ble Apex Court in the case of State of Gujarat Vs Mansukhbhai Kanjibhai Shah ( 2020 SCC OnLine 412)- held that " Corruption is the Malignant manifestation of a malady menacing the morality of men". It is further acknowledged by the Hon'ble Apex Court that Corruption that has been percolated throughout the country is inimical to the basic tenets of democracy which require the State to act in a transparent and fair manner. It further admitted that the very purpose of the Prevention of Corruption Act as 260 Spl.C.C. No. 428/2017 reflected in its objects and reasons, was to achieve honesty in public life.
7. The Catena of decisions of Hon'ble Apex Court contemplates that the Court has a duty to protect and promote public interest and build up public confidence. Misplaced sympathy or unwarranted leniency will send a wrong signal to the public giving room to suspect the institutional integrity, affecting the credibility of its verdict. Further the Court should bear in mind the expectation of the people to prevent Corruption by providing prompt conviction and stern sentence.
8. In the present case on hand, the offence was committed during the check period from 26.10.1978 to 29.05.2014, which means the amended provisions of Sec.13 of P.C. Act is not applicable to the case on hand. Admittedly, the alleged offence under Section 13 (1) (e) of Prevention of Corruption Act as on the date of 29-05-2014 was punishable with Imprisonment which may extend to 7 years and the minimum punishment 261 Spl.C.C. No. 428/2017 shall be not less than 1 year and fine. So for as imposition of fine is concerned, as per Section 16 of the Prevention of Corruption Act, where a sentence of fine is to be imposed under Section 13(1)(e) of P.C.Act, the Court shall take into consideration the pecuniary resources or property for which the accused is unable to account satisfactorily. In the case on hand the accused has failed to satisfactorily account for assets worth Rs.1,34,18,645-94.(Rupees One crore thirty-four lakh eighteen thousand six hundred and forty five and ninety four paisa).
Hence, after taking into consideration of the facts and circumstances of the case on hand and for the reasons stated above, the Court opines that it is just and proper to strike the balance between the maximum and minimum sentence prescribed under law. After taking into consideration the mitigating factors such as age of the accused and his present health condition, this Court opines that it is just and proper to sentence him to under go Simple Imprisonment for 3 years and to pay the fine of 262 Spl.C.C. No. 428/2017 Rs.1,34,19,000/- ( Rupees One crore thirty four thousand nineteen thousand only). Accordingly, the Court proceed to pass the following, ORDER Accused is sentenced to undergo Simple Imprisonment for 3 years and shall pay fine of Rs.1,34,19,000/- ( Rupees One crore thirty four lakh nineteen thousand only). In- default of payment of fine, he shall undergo further period of Simple Imprisonment for 1 year.
Office is directed to furnish free copy of Judgment to the accused, forthwith.
(Dictated to the Stenographer, transcript thereof and then corrected, signed and pronounced by me in the open Court on this the 23rd day of January 2026).
(PRAKASH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & LOKAYUKTHA SPECIAL JUDGE, BENGALURU CITY.
263
Spl.C.C. No. 428/2017 ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.No NAME OF WITNESS DESCRIPTION
1. Sri.T.V.Manjunath IO who conducted
further investigation and
preparation of final
report and submission of
charge sheet.
2. Sri.S.D.Venkataswamy Preparation of Ex.P2
source Report
3. Sri.S.Ramakrishna Witness to search and
signatory to Ex.P94
search warrant and
Ex.P.95 to P.97
documents and witness
to Ex.P20 and Ex.P.98
mahazar
4. Sri.D.P.Ravikumar Witness to search and
signatory to search
warrant Ex.P.94 and
witness to mahazar
Ex.P.20
5. Smt.B.R.Saritha Witness to search and
signatory to Ex.P.99
search warrant and
witness to seizure of
Ex.P.100 document and
witness to Ex.P.21
panchanama.
6. Smt.Kalavathi Witness to search and
signatory to search
warrant ExP.103 and
seizure of document as
per Ex.P.101 and 102
and witness to mahazar
Ex.P.104.
7. Sri.Krishna Naik Witness as to valuation
264
Spl.C.C. No. 428/2017
of immovable property
of the accused and
submitting report as per
Ex.P.5
8. Sri.Venkatesh.G. Dy. Secretary to Govt of
Karnataka. According
prosecution Sanction as
per Ex.P.105 and P.106
9. Sri.M.Kumaraswamy Witness as to valuation
of immovable property
and submitting report as
per Ex.P.7
10. Sri.K.P.Gangadhara Acharya ARTO in RTO,
furnishing the
information and
documents in respect of
three vehicles
mentioned in the
requisition.
11. Sri.K.N.Kantharaju Submission of Ex.P.88
report regarding food
and domestic expenses
of AGO and his family
members.
12. Sri.K.P.Vishnuvardhan Pandit Police Inspector,
Lokayukta, conducting
further investigation and
conducting search as per
Ex.P.103 search warrant
and witness to mahazar
Ex.P.22 and Ex.P.104
13. Dr.Anil Kumar P.G. Police Inspector CCB,
conducting search as per
Ex.P99 search warrant
and witness to seizure of
document as per
Ex.P.109 and witness to
Ex.P21 panchanama.
14. Sri.G.Siddaraju In respect of conducting
further investigation
15. Sri.H.P.Puttaswamy Registration of F.I.R. as
265
Spl.C.C. No. 428/2017
per Ex.P.102 and
conducting further
investigation.
16. Sri.Kumar Witness as to
conducting of
panchanama at the
house of accused at
Vappasandra.
17. Sri.Prashanth H.S. Witness regarding
estimation of the value
of the seized gold,
diamond, silver articles.
LIST OF WITNESSES EXAMINED FOR ACCUSED:
D.W.No NAME OF WITNESS DESCRIPTION 1. Sri.S.Srinivasamurthy AGO 2. Miss. S.Pooja Daughter of AGO 3. Sri.S.Sandeep Son of AGO
LIST OF DOCUMENTS MARKED FOR PROSECUTION Exhibit No Description of the Exhibits Proved by/Attested by P-1 Authorisation letter issued to PW.1 PW.1 by S.P. P1(a) Signature of PW.1 PW.1 P-2 Source Report PW.2 P-2(a) Signature of PW.2 PW.2 P-2(b) Signature of PW.15 PW.2 P-3 Document received from Sub- PW.1 Registrar, Kengeri in respect of property No.22 & 22/1 of Sarakkimain road.
P-4 Valuation report received from PWD PW.1 266 Spl.C.C. No. 428/2017 Bengaluru in respect of property No.22 & 22/1 of Sarakki main road. .
P-5 Interior expenditure report received PW.7 from PWD in respect of property No.22 & 22/1 of Sarakki Building P-5(a) Signature of PW.7 PW.7 P6 Documents received from Sub PW.1 Registar Mysore in respect of property No.23 of Marattikythanahalli.
P7 valuation report of building No.23 of PW.1 Marattikythanahalli.
P8 Document received from Sub PW.1 Registrarr, Bommanahally inrespect of property at No.4 Shakambarinagara, Bengaluru.
P9 valuation report from PWD in respect PW.1 of property at No.4 Shakambarinagara, Bengaluru.
P10 Documents furnished by Sub PW.1 Register, Basavanagudi in respect of No.904, ISSRO Layout Bengaluru.
P11 Valuation Report submitted by PWD PW.1
in respect of property at No.904,
ISSRO Layout Bangalore
P12 Property details given by Sub PW.1
Registrar,Jigani in respect of
Sy.No.96/4, 8 Gunta, Billapura.
P13 Property details given by Sub PW.1
Registrar, Jigani of Sy.No.96/5,
Billapura, Bengaluru.
P14 Property details given by Sub PW.1
Registrar, Sarjapura in respect of
Sy.No.96/6, Billapura, Bengaluru
P15 Details furnished by ARTO of PW.1
Jayanagar regarding Vehicle No.
KA.05.S.6007.
P16 Details furnished by ARTO, PW.1
Jayanagar, Bengaluru regarding
vehicle No.KA.05.MN.8663.
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Spl.C.C. No. 428/2017
P17 Details furnished by ARTO PW.1
Jayanagar, Bengaluru in respect of
vehicle No.KA.05.MH.394,
P18 Details furnished by ARTO PW.1
Jayanagar, Bengaluru in respect of
vehicle No.KA.05.Z.3716 from
ARTO, Jayanagar
P19 Details furnished by RTO Jayaqnagar, PW.1
Bengaluru in respect of vehicle
No.KA.05.MG.8373
P20 Search mahazar conducted at House PW.1
No.22 at Sarakki, dated 29-05-2014
P20(a) Signature of PW.3 PW.1
P20(b) Signature of Mrs.Prabhavathi PW.1
P20(c) Signature of PW.4 PW.1
P20(d) Signature of PW.15 PW.1
P21 Search mahazar conducted at house PW.1
No.904, ISSRO Layout.
P21(a) Signature of PW.5 PW.1
P21(b) Signature of PW.13 PW.1
P21(c) Signature of Mr.Sandeep PW.1
P22 Search mahazar conducted at PW.1
Vapasandra House dated 29.05.2014
P22(a) Signature of PW.6 Pw.1
P23 NSC Details of accused PW.1
P24 ICICI Bank, Chamarajpet Branch PW.1
S.B.Account details.
P25 S.B.Account details of accused at PW.1
ICICI Bank, Chamarajpet, Bengaluru P26 S.B.Account details furnished by PW.1 S.B.M. Bank, B.M.Road, Channapatna P-27 Details of S.B.Account of wife of PW.1 accused (Prabhavathi)furnished by ICICI Bank, Padmanabhanagar, Bengaluru.
P-28 S.B.Account details of S.Sandeep PW.1
268
Spl.C.C. No. 428/2017
furnished by Vijaya Bank,
Dayanandasagar College Branch,
Kumaraswamy Layout, Bengaluru
P-29 S.B.Account details of S.Sandeep PW.1
furnished by ICICI Bank, Jayanagar, Bengaluru P-30 S.B.Account details of S.Pooja PW.1 furnished by ICICI Bank, Jayanagar, Bangalore.
P-31 S.B.Account details of S.Pooja PW.1
furnished by ICICI Bank,
Channapatna Branch
P-32 S.B.Account details of S.Pooja PW.1
furnished by Vijaya Bank,
Dayanandasagar College branch,
Bengaluru
P-33 Electricity Connection details of PW.1
Sy.No.23, Bogadi village, Mysore
furnished by MESCOM
P-34 Electrical connection deposit details PW.1
of Mrs.Prabhavathi.
P-35 Landline phone connection deposit PW.1
details of S.Sandeep
P-36 Landline phone deposits details of PW.1
Mrs.Prabhavathi.
P-37 Gas Connection details and deposit of PW.1
Mrs.Prabhavathi
P-38 Total net salary details of accused PW.1
P-39 Rental Income details of No.22 & PW.1
22/1 of Sarakki, J.P.Nagar property P-40 Rental income details of property at PW.1 Sy.No.23, Gaddige road, Bogadi, Mysore P-41 & 42 ITR details of Mrs.Prabhavathi PW.1 inrespect of Income from Interior decoration and Classic Beauty Parlor business P-43 Salary details of Miss Pooja furnished PW.1 by Infosys.
269
Spl.C.C. No. 428/2017
P-44 Interest Income details of PW.1
S.B.Account at ICICI Bank,
Chamarajpet.
P-45 Loan details regarding availing of PW.1
Rs.14 lakhs from ICICI Bank
Chamarajpet, Bengaluru.
P-46 Loan details regarding availing of PW.1
Rs.7 lakh loan from ICICI Bank
Chamarajpet, Bengaluru
P-47 Housing loan details from LIC PW.1
Housing Finance Ltd.
P-48 Loan details from Sri.Hanumagiri PW.1
Credit Co-operative Society,
Nagarabhavi, Bangalore
P-49 Details of availing of 3 lakh loan PW.1
from ICICI Bank, Chamarajpet
Branch, Bangalore
P-50 Loan details regarding availing of PW.1
Rs.15 lakh loan by Mrs Prabhavathi
from Sri.Premchand Ahuja.
P-51 Loan details regarding availing of PW.1
loan by Smt.Prabhavathi from
B.R.Thirumali.
P-52 Certificate U/sec.65(B) of I.E.Act PW.1
issued by Manager
P-53 Letter of S.A.Babu dt 25.3.2016 PW.1
addressed to I.O. regarding Toyota
Qualis.
P-54 Certified copy of Sale Deed dated PW.1
12-5-2004 inrespect of Sy.No.36/1
situated at Krumbigal Road,
Mavahally, Bengaluru
P-55 Original covering letter of Sr. Sub- PW.1
Registrar, Basavanagudi, Bengaluru P-56 & 57 Details regarding selling of property PW.1 No.1/1, No.2526, Guddadahally by Smt.Prabhavathi P-58 Income details regarding surrendering PW.1 of LIC Policies by Mis.Pooja, furnished by LIC, B.H.Road Branch, 270 Spl.C.C. No. 428/2017 Tumakuru P-59 Income details pertaining to LIC PW.1 Policy furnished by Sr.Branch Manager, M.G.Road branch, Bengaluru P-60 Income details pertaining to LIC PW.1 Policy furnished by Manager, LIC, Channapatna branch P-61 Income details pertaining LIC Policy PW.1 furnished by Manager, LIC Channapatna Branch P-62 Income details regarding KGID PW.1 Polices furnished by Deputy Director, KGID P-63 Details of Stamp Duty and PW.1 Registration Charges paid, in respect of property No.904, ISSRO Layout, Bangalore furnished by Sub-Registrar P-64 Tax Paid details furnished by ARO, PW-1 BBMP in respect of property No.22 & 22/1 , J.P.Nagar.
P-65 Electricity Charges details furnished PW.1 by AEE, BESCOM, J.P.Nagar, Bangalore in respect of Property No.22 & 22/1 of J.P.Nagar.
P-66 Details of water and sewage Usage PW.1 details furnished by AEE, BWSSB, Jayanagar in respect of P.No.22 & 22/1 of J.P.Nagar P-67 Toyota Qualies Vehicle details PW.1 furnished by ARTO, RTO Office South, Bangalore P-68 Water Consumption charges details PW.1 furnished by AEE, BWSSB in respect of property No.904, ISSRO Layout, Bengaluru P-69 to P-75 Entire Schedules furnished by PW.1 accused (total 7 books) P-76 Details of LIC Premium paid by PW.1 AGO in respect of Policy 271 Spl.C.C. No. 428/2017 No.360916109 P-77 LIC Premium paid details of Pooja PW.1 daughter of accused in respect of Policy No.46014 P-78 LIC Premium paid details of PW.1 Smt.Prabhavathi (Wife of accused) P-79 Vehicle Insurance Premium paid PW.1 details pertaining to Sandeep S/o Accused P-80 Payment of Qualis Car maintenance PW.1 charges paid by J.Prabhavathi P-81 Educational Expenses details PW.1 furnished by Bangalore International Academy of English Primary School, Jayanagar P-82 Educational Expenses details PW.1 furnished by Vijaya Education Institute Trust, Jayanagar.
P-83 Educational Expenses details PW.1
furnished by City PU College,
Jayanagar, Bangalore.
P-84 Educational Expenses details PW.1
furnished by Surana College, South
End Road, Bangalore
P-85 Educational Expenses details PW.1
furnished by Carmel Convent Higher
Primary School, Jayanagar,
Bengalore
P-86 Educational Expenses details PW.1
furnished by SSMRV PU College,
Jayanagar, Bangalore
P-87 Educational Expenses details PW.1
furnished by Dayanandsagar College of Engineering, Kumaraswamy Layout, Bangalore P-88 Family Expenditure Details furnished PW.1 by Deputy Director of Statistics, Department of KLA P-88 (a) Signature of PW.1 PW.1 272 Spl.C.C. No. 428/2017 P-89 Membership and other expenses PW.1 details furnished by Cosmopolitan Club Jayanagar, Bangalore P-90 Mobile charges paid details furnished PW.1 by Airtel Ltd in respect of Sandeep Son of accused P-91 Health Care expenses details PW.1 furnished by VLCC Health Care Center P-92 Membership Expenses details PW.1 furnished by Divya Jyothi Credit Cooperative Society, Bangalore.
P-93 CCTV Camaras Purchase details PW.1 furnished by PurplehueTecnosoft Pvt.Ltd.
P-94 Search warrant issued to search PW.3
Sarakki House
P-94(a) Signature of PW.3 PW.3
P-94 (b) Signature of Sandeep S/o AGO PW.3
P-94 (c) Signature of PW.4 PW.4
P-94(d) Signature of PW.15 PW.3
P-95 Documents seized at house of AGO PW.3
( File-3 Sub-file -I)
P-96 Documents Seized at house of AGO PW.3
( File-3 Sub-file-II)
P-97 Documents Seized at house of AGO ( PW.3
File-3 Sub-file-III)
P-98 Search mahazar prepared while PW.3
opening the SBI Bank Locker
P98(a) Signature of PW.3 PW.3
P-98(b) Signature of Mrs. Prabhavathi PW.3
P-98(c) Signature of PW.4 PW.3
P-99 Search Warrant issued to search PW.5
ISSRO Layout House
P-99(a) Signature of PW.5 PW.5
P-99(b) Signature of PW.13 PW.13
273
Spl.C.C. No. 428/2017
P-99(c) Signature of Sandeep PW.13
P-100 Seized documents at ISSRO Layout PW.5
House ( File-4 Sub-file-II)
P-101 Seized documents at Chikkaballapura PW.6
House Page 1-138 (File -4 Sub-file
III)
P-102 Seized documents at Chikkaballapura PW.6
House Page 1-8 File -4 Sub-file II(A) P-103 Search warrant issued to search PW.6 Chikkaballapura Office P-103(a) Signature of PW.6 PW.6 P-103(b) Signature of PW.12 PW.12 P-103(c) Signature of AGO PW.12 P-103(d) Signature of Sridhara (Panch) PW.12 P-104 Search mahazar prepared at PW.12 Chikkaballapura Office P-104(a) Signature of PW.6 P.W.12 P-104(b) Signature of PW.12 PW.12 P-104(c) Signature of AGO PW.12 P-104(d) Signature of Sridhara (Panch witness) PW.12 P-105 Sanction order PW.8 P-105 (a) Signature of PW.8 PW.8 P-106 Amended Order PW.8 P-107 Original Note sheet ( 18 sheets) PW.8 P-108 Authorisation Letter issued PW.12 U/Sec.165 of Cr.P.C.
P-109 Seized documents at ISSRO Layout PW.13 House.( File-I in File-4, page No.1 to
127) P-110 Original Memo dt 15.09.2015 issued PW.14 by S.P. authorizing PW.14 to conduct further investigation.
P-111 Proceedings of office of PW.14 S.P.authorising PW.14 to conduct further investigation.
P-112 FIR PW.15
274
Spl.C.C. No. 428/2017
P-112(a) Signature of PW.15 P.W.15
P-113 Original Proceedings of office of S.P. PW.15
authorizing PW.15 to conduct further investigation.
P-113(a) Signature of PW.15 PW.15
P-114 Letter written to the Director, KGID PW.15
to depute officials.
P-114(a) Signature of PW.15 P.W.15
P-115 Letter written to the Prl.Manager, PW.15
BESCOM, Bengaluru to depute
officials
P-115(a) Signature of PW.15 P.W.15
P-116 AGO's APR's from 2001-02 P.W.15
P-117 Letter written by Miss.Pooja to DW.2
Lokayukta Police
P-117(a) Signature of DW.2 DW.2
P-118 Letter written by Mr.Sandeep.S. to DW.3
Lokayukta Police
P-118(a) Signature of DW.3 DW.3
LIST OF DOCUMENTS MARKED FOR ACCUSED:
Exhibit No Description of the Exhibits Proved by/Attested by D-1 Original copy of Memorandum of DW.1 Understanding, page 29-32-F3, [Including in Ex.P-96] D-2 Original copy of Memorandum of DW.1 Termination Page 33& 34-F- 3[Included in Ex.P-96] D-3 Memorandum of Understanding DW.1 dated 26-03-2012 page 20 to 28 F-3 [Included in Ex.P-96] D-4 Certified copy of Sale Deed DW.1 pertaining to property No.25, 26.
dated 01-04-1989
D-5 Certified copy of Sale deed dated DW.1
275
Spl.C.C. No. 428/2017
15-06-1996
D-6 Acknowledgment issued by DW.1
Income tax Department in-respect
of submission of ITR of
Smt.Prabhavathi for the year 1997-
98
D-7 Certified copy of Sale Deed dated D.W.1
17-04-2013
D-8 Certified copy of Sale deed, dated
10-10-2014
D-9 Acknowledgment issued by D.W.3
Income Tax Department regarding
submission of ITR of Mr.Sandeep
for the years 2009-10 to 2015-
2016 to Income tax Department.
D-10 Acknowledgment issued by D.W.2
Income tax department regarding
submission of ITR of Miss.Pooja
for the years 2012-13 to 2014 to
Income tax Department.
D-11 Certified copy of Sale Deed dated -
21-5-2004
(PRAKASH NAYAK),
LXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE & LOKAYUKTHA SPECIAL JUDGE,
BENGALURU CITY.
Digitally signed by
PRAKASH PRAKASH NAYAK
NAYAK Date: 2026.01.23
16:15:46 +0530