Madras High Court
K.Thavasi vs State By Deputy Superintendent Of ... on 23 April, 2014
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.04.2014
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
Crl.A.No.162/2009
1. K.Thavasi
2. T.Manjula Appellants/A1 & A2
Vs
State by Deputy Superintendent of Police
Vigilance and Anti Corruption, Madurai Respondent
Prayer:- This Criminal Appeal is filed against the judgement dated 19.02.2009 made in Special CC.No.3/2006 by the learned Special Judge-IX Additional Sessions Judge, Chennai.
For Appellant : Mr.S.Ashok Kumar, SC for Mr.A.Amarnath
For Respondent : Mr.A.N.Thambidurai, APP
JUDGEMENT
This Criminal Appeal is filed against the judgement dated 19.02.2009 made in Special CC.No.3/2006 by the learned Special Judge-IX Additional Sessions Judge, Chennai, thereby (a) convicting and sentencing the 1st Appellant/A1 for the offence under Section 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 to undergo one year Rigorous Imprisonment and to pay a fine of Rs.10,000/-, in default, to undergo three months Simple Imprisonment, (b) convicting and sentencing the 2nd Appellant/A2 for the offence under Section 109 of IPC read with 13(1)(3) read with 13(2) of the Prevention of Corruption Act, 1988 to undergo one year Simple Imprisonment and to pay a fine of Rs.5000/-, in default to undergo three months Simple Imprisonment and (c) directing the Respondent Police to take steps to recover the sum of Rs.9,14,013/- from A1 and A2.
2. The charge against the 1st Appellant is that he was in possession of assets in his name and the name of his wife disproportionate to his known sources of income to the tune of Rs.24,42,510/-, which he could not account for. The 2nd Appellant/A2 abetted A1 by allowing A1 to acquire certain properties in the name of A2 and holding the same on behalf of A1 disproportionate to the known sources of A1. The learned Special Judge-IX Additional Sessions Judge, on assessment of evidence, came to the conclusion that the Prosecution has proved the guilt of the accused only to the extent of Rs.9,14,013/- and found them guilty thereof. The Trial Court held that though the accused have proved several sources of income, but failed to maintain proper accounts, however, held that there was no complaint by anyone against the accused that he earned income by misusing his Office.
3. The undisputed facts are that A2 married A1 on 10.9.1987. A1 was an MLA from 19.6.1991 to 13.5.1996 representing Andipatti Constituency. Prior to that, he was practising as an Advocate and a part time Lecturer in PMT Arts College at Usilampatti during 1983 to 1986. The accused are from affluent family and at the time of marriage, A2 was presented with 808 grams of gold and an Ambassador Car by her father, besides other household articles.
4. On the basis of the First Information Report lodged on 31.10.1996, K.Srinivasagam, the Inspector of Police conducted investigation and on account of his death on 13.5.2005, PW.79 laid the final report against the Appellants, mentioning that the 1st Appellant was in possession of assets worth Rs.24,42,510/- both in his name and the name of his wife disproportionate to his known sources of income. On that, the trial proceeded.
5. The Prosecution examined 79 witnesses as PW.1 to PW.78 and marked Ex.P1 to P127. The defence examined DW.1 to DW.6 and marked Ex.D1 to D58. The Appellants, while pleading generally not guilty to the charges, produced evidence as referred to above to explain that the properties were obtained lawfully and thus explained all the items of accusation against them. Their specific plea was that the Prosecution had not given a complete picture of their income, for, some known sources of their income had been suppressed and valuation of properties are inflated. It has been contended that the entire case has been foisted on the accused due to mala fide intention of the Police Officer, Srinivasagam. The said Srinivasagam was the first accused in a case filed by the 1st Appellant as an Advocate as he then was and the 1st Appellant refused to budge to the request made by the said Srinivasagam, Inspector of Police and he had strong motive against the Appellant to foist a case against the Appellants. It is contended that the accused had satisfactorily established that the income during the check period is much more than the assets acquired by them and therefore, they are entitled for acquittal.
6. Mr.S.Ashok Kumar, the learned senior counsel for the Appellants contended that the learned Judge (1) has fallen into error in application of law to the facts and circumstances of the case, (2) has unreasonably disallowed substantial income from some known sources, while in others has allowed only a part amount, though the income was much larger, (3) on controversial points even though there is no evidence on the side of the Prosecution, yet has given benefit of doubt to it instead of the defence. The learned senior counsel contended that the Trial Court failed to consider the evidence adduced in favour of the accused by the Prosecution witnesses themselves, but proceeded to hold that the accused have not let in evidence in proof of the defence claimed by them, thus placing the burden on the accused to establish the defence by evidence. He submitted that the admission by the Prosecution witnesses in their evidence goes to show the truthfulness of the defence version.
7. Per contra, Mr.A.N.Thambidurai, the learned Additional Public Prosecutor for the State supported the impugned judgement of conviction and sentence imposed by the Trial Court. On the points raised by the defence with respect to satisfactory explanation offered by the accused regarding the assets in possession of the Appellants, his answer is that they are not tenable.
8. I would address myself to the point raised by the defence regarding the burden of proof. It is for the Prosecution to prove that the accused or any person on his behalf, has been in possession of disproportionate pecuniary resources of income. When that onus is discharged by the Prosecution, it is for the accused to account satisfactorily for the disproportionality of the properties possessed by him. The burden of proof placed on the accused is an evidential burden though not a persuasive burden. The accused, however, could discharge that burden of proof on the balance of probabilities either from the evidence of the Prosecution and/or evidence from the defence.
9. In State of Maharashtra Vs. Wasudeo Ramachandra Kaidalwar (AIR-1981-SC-1186), the Honourable Supreme Court held that the extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under Section 5(1)(e) (corresponding to 13(1)(e) of the 1988 Act) cannot be higher than the test laid by the court in Jhingan's Case (AIR-1966-SC-1762) i.e. to establish his case by the preponderance of probability. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he needs to do is to bring out preponderance of probability. There are number of citations on this preposition of law, all of which need not be referred to.
10. I would now advert to the factual aspects of the case. To avoid repetition, I would, at the outset, state some of the facts which are essential for disposal of this appeal. The case at hand has to be judged in this background.
11. According to the defence, the following items of property are not taken into consideration, while deciding the income of the accused:-
1.The value of the sale of House Plot at Anna Nagar.
2.The agricultural income of the 2nd Appellant in respect of 11 acres of land.
3.The amount of Rs.21 lakhs received as advance towards the lease of the Rice Mill during April 1996 to PW.34 as evidenced by Ex.D39.
4.The amount of Rs.60000/- received as advance towards the lease of thrashing floor to PW.35 on 25.10.1990 as evidenced by Ex.D40 and the monthly rent of Rs.2000/- received by her from that date.
5.The income derived from the Rice Mill.
6.The value of the house property, Rice Mill and thrashing floor (Nel Kalam) are inflated.
7.The inclusion of the value of Mahindra Jeep owned by the father of A1 and the expenditure incurred by the same are included as the property of A1.
8.The non inclusion of gift amounts received on various occasions by the accused family though accepted by the Income Tax Department to the tune of Rs.11,87,827/-
12. In support of the defence, the learned senior counsel for the Appellants has led me to the evidence of the Prosecution witnesses as well as the statement made by the accused under Section 313 of Cr.PC and the deposition of the defence witnesses and documents.
13. It is not in dispute that the 1st Appellant was an MLA from 17.6.1991 to 13.5.1996 and he married A2 on10.9.1987. The Prosecution itself has let in evidence to show that the accused are from affluent family and that at the time of marriage, A2 was presented with 808 grams of gold and an Ambassador Car by her father besides other household articles. In fact, PW.79, the Investigating Officer has admitted in his cross examination that from the statement of Chakkaraiah, the father of the 2nd Appellant recorded by the first Investigating Officer, it has come to know about the presentation of 101 sovereigns of jewels and an old Ambassador Car to the 2nd Appellant at the time of her marriage.
14. Apart from that, A2 was cultivating extensive area of land both on her own and also lands taken on lease from various persons. Besides, she used to lend money to various persons for interest and was earning income out of it. PW.75 P.Mohan, the then Inspector of Police, Vigilance Department had seized 11 promissory notes at the time of search of the premises of the Rice Mill owned by A2, which is also evident from Ex.P105 Mahazar. All the eleven promissory notes were found in the named persons and signed by those named persons. The defence witnesses, that is, DW.5 Kothandasamy and DW.6 Pinnathevar have stated that they used to borrow money on interest from the 2nd Appellant even prior to 1986-1987. Their names are shown in Mahazar. Ex.P105. In fact, DW.6 is also a witness to the said seizure mahazar Ex.P105. Nothing is elicited from their cross examination to discredit their evidence. Hence, there is no reason to disbelieve their evidence.
15. The evidence on record shows that the father of the 1st Appellant was a big landlord of the locality. PW.29, Sabimannar, the Village Administrative Officer of the said area has admitted that the father of A1 had vast extent of land. In fact, PW.79, the Investigating Officer has admitted in his evidence that the father of A1 stated during investigation that he has lent a sum of Rs.7.5 lakhs to the 2nd accused at the time of construction of the house. DW.4 Mayandi, the younger brother of A1 also in his evidence has stated that his father gave Rs.7.5 lakhs to A2 in his presence. There is nothing unusual in daughter-in-law borrowing from her father-in-law. In a family transaction like this, it is too much to expect that there would be outsiders to witness the father- in-law giving money to the daughter-in-law. To expect such a thing is to expect some thing unnatural and abnormal and to adduce any such evidence would be artificial and suspicious.
16. That apart, PW.69, the Income Tax Officer, who worked in Madurai as Income Tax Officer in the year 2002, has in his evidence admitted the income of the father of A1 from various sources, namely, agricultural income, income by way of interest on loan and also from business, etc. This would go to show the affluent nature of the family of the accused. The Trial Court has brushed aside this piece of evidence for no reasons, though the same has come out from the Prosecution witnesses themselves.
17. The learned senior counsel pointed out that regarding various assets held by the accused at the end of the check period, the Prosecution has not taken into consideration vital materials into account. The 1st accused has purchased a house site at No.107-C, Anna Nagar, Madurai for Rs.1,02,650/- from the Housing Board during 1990 as spoken to by PW.1. The same property had been sold to PW.4 and he had purchased for a sale consideration of Rs.4 lakhs through Power of Attorney of A1. The court below has refused to take this into consideration, on the ground that PW.4 has not stated as to the nature of his source of payment. The Prosecution, however, did not put question to the said witness on the point that PW.4, had no source to purchase the land from A1 nor made any suggestion that the said sale transaction is not a genuine one. The reasoning given by the Trial Court for not taking this income into consideration is untenable. As rightly contended by the learned senior counsel, the said documents executed in 1993 could not have been manipulated and concocted anticipating this Prosecution in 1996. Therefore, A1 has earned a sum of Rs.3 lakhs and the same has to be added towards the income of the accused.
18. Turning to the evidence adduced by the Prosecution regarding the agricultural income, PW.6, the then Tahsildar at Usilampatti has given in evidence that he assessed the income of A1 during the check period at Rs.1,62,227/- and that of A2 for the check period at Rs.1,34,100/- from the leasehold lands at Pothampatti Village. However, the Trial Court has calculated the agricultural income of A1 at Rs.2,83,280/- and that of A2 at Rs.2,48,662/- from Pothampatti Village lands. Hence, it is clear that the calculation made by PW.6 did not disclose the actual income and a reduced income was given by him. A vital important fact, which is disclosed from a careful scrutiny of PW.6 is that he has not considered the income derived from the leasehold lands held by the 2nd accused at Vahurani Village and the other places. In fact, it has been elicited from PW.6 that he has not included the lands in S.Nos.168A, 5A, 5A and 5D to the extent of 4.67 acres and the land in S.No.113/1, 113/2, 112/A to the extent of 2.85 acres and the land in S.No.90/3, 90/5, 90/6, 90/7, 90/8A, 90/9, 90/11 and 90/4 to the extent of 3.52 acres at Vahurani Village and consequently the income from those lands were not shown in the report.
19. In this context, it is relevant to refer to the evidence of PW.32, wherein he has stated that he has given leasehold rights of 3.5 acres of lands to A2 in Thulukampatti Village ten years back. Thus, it is evident that A2 was having leasehold rights in respect of 3.5 acres of lands even in 1991 itself and that PW.32 had to file a petition in OP.No.23/2000 before the Sub Court, Madurai to get restoration of possession of the sand lands, which is also evidenced by Ex.D37 and D38. The accused have marked Ex.D5, D16, D17, D18 and D20 revenue records to show the agricultural income derived by her from those lands. But, the Prosecution knowing fully well that it was a source of income of the Appellant, did not examine the revenue records nor mentioned about this income.
20. PW.28, the Village Administrative Officer of Pothampatti Village has admitted in his evidence that the 2nd accused was holding leasehold rights in respect of of 1.81 acres of land belonging to one Virumandi in Patta No.1146 and testified in his evidence about the certificates issued by him in Ex.D29, Ex.D30, Ex.D33 showing the agricultural income earned by the 2nd accused. These certificates were also countersigned by PW.55 Ganapathy, the Deputy Tahsildar of the area. Besides this, Ex.D34, Ex.D35 and Ex.D36 were marked through PW.29, Village Administrative Officer of Vahurani Village and the same has also been attested by PW.55, Ganapathy, Deputy Tahsildar. I do not see any justification in discarding this evidence. It is not the case of the Prosecution that they are not potential lands. The evidence of PW.29 indicated that both nanja and punja lands were cultivated. Ordinarily one acre of first class nanja land would yield a sizable income and with improvement methods of agricultural double crop and use of fertilizers, it can easily be doubled. When there is no evidence from the Prosecution side to show that those lands were not yielding any income, I see no justification to discard this source of income.
21. Besides, A2 owned a Rice Mill. The evidence indicated that 6 Motors with the load of 68 HP were attached to the Rice Mill. PW.36, Senior Manager, Tamil Nadu Civil Supplies Corporation, who had inspected and calculated the income from the said Mill, assessed the profit of Rs.9 lakhs minimum in his report Ex.P56. Though there were number of other machineries, he admitted that he has not considered the likely income derived from this, but admitted that there must be more profit from the Mill. His calculation is based on the quantum of electrical energy used by the Mill during the said period. However, PW.70, the DSO, Madurai in his evidence in chief, has stated that the income cannot be calculated from the quantum of electrical energy. The aforesaid evidence clearly demonstrates that the Prosecution deliberately reduced the income derived by the 2nd accused from the Mill.
22. The said Rice Mill was leased out to PW.34 on 5.4.1996 by A2 on a monthly rent of Rs.7500/- and there is no dispute that PW.34 has paid an advance of Rs.2 lakhs and the lease agreement was for ten years. PW.34's evidence would establish the above said facts. Here again, the Prosecution has not taken into consideration the above said amounts.
23. Further, the 2nd accused has also leased out the thrashing floor (Nel Kalam) to PW.35 on a monthly rent of Rs.2000/- and PW.35 paid an advance of Rs.60,000/- to A2. PW.35 had spoken to the said fact and Ex.D40 the lease agreement dated 25.10.1990 has been marked in proof of the same. It is unreasonable on the part of the Prosecution to deliberately omit the above said income from consideration. The learned Judge's reasoning in discarding the evidence as referred to above are too lop-sided to be acceptable. The onus lay on the Prosecution to adduce evidence if the income was so unusually low. The Prosecution is guilty of suppressing the aforesaid income of A2 from the agricultural income and income from the Rice Mill as a source of income.
24. Regarding the presentation of gifts by way of money received by the accused during the family function, PW.65 the Income Tax Officer in his evidence has accepted that it is usual practice in those Districts like Madurai and it is also quite common to present gifts by way of cash. PW.22 the sister of the first accused has stated that she gave presentation on various occasions. In this regard, the evidence of PW.34, PW.35 and PW.46 are relevant to be considered. They have admitted in their evidence about the practise of giving presentation and about presentation being given by them to the accused. In fact, the Prosecution itself has accepted the receipt of gifts to the tune of Rs.4,20,440/- as shown in Item No.16 of Statement IV of the final report.
25. The testimony of PW.4, the Income Tax Officer has testified to the effect that he had verified the note books containing the details of the gifts received by the accused. According to his evidence, the accused appeared before him on 13.2.1995 on the summons issued by the Department and gave statement of affairs regarding their income, valuation report of their properties under Ex.P29. PW.65, who was the concerned Income Tax Officer, has received Ex.P79 to Ex.86 note books containing the details of the gifts received by the accused and put his initials with the date at the time of receipt of those books. However, he could not give any valid reason for the erasure of date. PW.67 another Income Tax Officer has admitted that the Department has accepted the statement of the accused regarding the gifts received by the accused to the tune of Rs.11,87,827/-.
26. The Trial Court neither accepted the Prosecution case nor the evidence of Income Tax Officers, but came to his own conclusion and accepted the gifts only to the tune of Rs.8,40,139/- only. Ex.P79 to Ex.P86 were produced before the Income Tax Department during 1995 itself on the specific instructions from the Income Tax Department long prior to the registration of the First Information Report and therefore, the same cannot be said that they were prepared for the purpose of the case. There is no legally acceptable evidence on record to show and establish that the Prosecution could prove beyond reasonable doubt that the receipt of gifts is only to the tune of Rs.4,20,440/-. At the risk of repetition, the Trial Court did not accept the Prosecution case, but came to its own conclusion only to the tune of Rs.8,40,139/-. Therefore, it can be held that it is customary practice in the community of the accused to offer and receive gifts on family functions. The officials of the Income Tax Department have accepted the gifts received by the accused to the tune of Rs.11,87,827/- and this has to be added to the income of the Appellant.
27. The contention of the learned senior counsel for the Appellants is that the court below failed to consider the report of the valuation viz. Ex.P17 and Ex.P29 and erroneously arrived at the figure of Rs.19,13,990/- as cost of construction, much above the valuation done by the official witnesses who are experts in the said field. PW.11, Engineer, PWD, has valued the house at Rs.25,80,000/- for construction of ground, first and second floor and valued the Rice Mill at Rs.5,90,991/- and the thrashing floor at Rs.4,11,615/-. The report of PW.11 has been marked as Ex.P19 and Ex.P20. He has deposed that for personal supervision, the expenditure will be less by 10%. It is his evidence that the Mill has been constructed even in 1944 as per the foundation stone found therein. PW.12 has stated that the thrashing floor was laid even prior to 1990. On the side of the defence, the Civil Engineer, who was in charge of the construction of the house, has been examined as DW.3. His evidence indicated that the cost of the construction was only Rs.13.5 lakhs and to that effect, the accused have also filed Income Tax returns showing the cost of construction as Rs.13.5 lakhs. The valuation certificate issued by the Valuer for Income Tax return had shown the value of construction at Rs.17,22,591/-, after inspecting the same on 16.11.1995 as evidenced by Ex.P29. It is pertinent to point that at the request of the Prosecution, DIG of Registration prepared and sent a report to the Deputy Superintendent of Police, VAC in respect of cost of construction of the House property marked as Ex.P17 and the same shows the value at Rs.17,48,141/-. But, the Prosecution has withheld the evidence of DIG of Registration for reasons known to it.
28. Now coming to the godown, PW.50, the Commissioner of Usilampatti Municipality, has stated in his evidence that the godown inspected by him was assessed to property tax in the year 1982 itself and Ex.D45 is the property tax demand register for the period 1987-1988 to 1999-2000 and Ex.D44 are the proceedings regarding the transfer of name for property from one Mohan PW.7 to A2. As regards the thrashing floor, the Prosecution valued the same at Rs.4,11,615/-. The evidence of PW.12 from whom the accused is said to have purchased the same shows that the thrashing floor was put up even prior to the sale to A2 i.e. In 1990 by the then owner.
29. Regarding the purchase of Mahindra Jeep, the evidence indicated that it was purchased by the father of A1. But, it is wrongly included in the assets of A1. PW.19, Manager, Canara Bank, has deposed that the father of A1 obtained a loan from the Bank to the tune of rs.2,57,600/- and the said amount was transferred to his Savings Bank Account and a demand draft was given in favour of the dealer for the purchase of the same. In consonance with the evidence of PW.19, Manager of Kovai Auto Mobiles, PW.20 in his evidence has stated that the vehicle was sold to the father of A1. The said vehicle has been registered in the name of A1's father as disclosed from the evidence of PW.17, Superintendent, RTO Office at Theni. It is also evident from the testimony of PW.69, the Income Tax Officer that the purchase of Jeep on loan has been shown in the return submitted by A1's father. He has also stated that various sums paid by the father of A1 towards interest was also shown in the returns filed by him. From the above, it would be clear that the Jeep was purchased by the father of A1 by obtaining loan from the Bank and he had also shown the same in the Income Tax returns. That being so, the learned Judge has gone wrong in including the said item of property as an asset of the 1st accused.
30. The learned Judge has not taken into consideration the various statements filed by the accused before the Income Tax Department on the ground that the same were submitted subsequent to the investigation. On a scrutiny of the evidence of PW.69, it has come out in evidence that the accused have filed the statements long before the registration of the First Information Report on 31.10.1996 and in fact, PW.14 has admitted that the accused appeared in the Office on 13.12.1995 itself and filed the statements as evidenced by Ex.P29, etc.
31. From the above discussions, it would follow that the disproportionate assets found by the learned trial Judge to the tune of Rs.9,14,013/- in the possession of the Appellants have been effectively and satisfactorily explained. The accused have satisfactorily shown that they had more savings to purchase the properties during the check period.
32. The last contention of the Appellants is that the entire case has been foisted on the accused due to mala fide intention of the Police Officer Mr.Srinivasagam, who had done the predominant investigation in this case. It is submitted that the case was originally registered on 31.10.1996 by one Srinivasagam. He conducted the investigation and after completing the investigation prepared a draft final report. The said Officer died on 13.12.2005 and the present Investigating Officer PW.79 verified the investigation already done and concluded the investigation. The learned senior counsel strenuously submitted that there was strong motive for the first Investigating Officer to foist a false case against him and submitted that in a case filed by A1 as an Advocate, the said Srinivasagam was the 1st accused and he instructed A1 to withdraw the said complaint to which A1 refused. The said complaint filed by A1 was taken on file and later transferred to the Judicial Magistrate, Theni in CC.Nos.385/2006 and 386/2006. The present investigation and report are motivated and mala fide, in view of the criminal proceedings initiated by A1. The whole course of investigation as disclosed and discussed supra is suggestive of some predetermination of the guilt of the Appellants. Therefore, there is every force in the submission made by the learned senior counsel for the Appellants.
33. On the face of the totality of the above circumstances and the ARUNA JAGADEESAN, J.
Srcm cumulative effect thereof, the Prosecution cannot be said to have successfully fixed the criminality under Section 13(1)(e) of the Act on the Appellants. So, disagreeing with the learned Special Judge, I hold that the Prosecution has failed to bring home the charges against the Appellants.
34. In view of the aforesaid discussion, I hold that the Prosecution has miserably failed to prove, by any clear impeachable and cogent evidence, that the Appellants were holding assets disproportionate to their known sources of income.
35. In the result, this Criminal Appeal is allowed, setting aside the impugned judgement of conviction and sentence. The Appellants are acquitted of the charges levelled against them. The bail bond, if any executed by the Appellants, shall stand cancelled and the fine amount, if any paid by them, shall be refunded to them. If the recovery of Rs.9,14,013 is already effected, then the same is directed to be refunded to the Appellants.
23.04.2014 Index:Yes/No Web:Yes/No Srcm To:
1.Special Judge-IX Additional Sessions Judge, Chennai.
2.The Deputy Superintendent of Police, Vigilance and Anti Corruption, Madurai
3.The Public Prosecutor, High Court, Madras Pre Delivery Judgement in Crl.A.No.162/2009