Bangalore District Court
State By Karnataka vs Mr.M.V.Vijayakumar on 28 July, 2022
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Spl.C.C. No.191/2017
KABC010112482017
IN THE COURT OF LXXVII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND THE
SPECIAL JUDGE FOR TRYING OFFENCES
UNDER THE PREVENTION OF CORRUPTION
ACT, AT BENGALURU CITY (CCH-78)
DATED THIS THE 28 th DAY OF JULY 2022
PRESENT:
SRI. S.V.SRIKANTH, B.A., LL.B.,
LXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE,
BENGALURU CITY.
SPL. C.C.No.191/2017
COMPLAINANT: State by Karnataka
Lokayuktha Police.
(Rep. by Mrs.Sunitha,
Public Prosecutor)
/VS/
ACCUSED: Mr.M.V.Vijayakumar,
Retired Assistant
Executive Engineer (Electrical),
BDA,Bengaluru.
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Spl.C.C. No.191/2017
Presently at No.74, Nisarga,
12th Cross, 8th Main, N.S.Palya,
BTM 2nd Stage, Bengaluru.
(Rep by Sri.Murthy D.Naik
for V.N.N., Advocate)
TABULATION OF EVENTS
01. Date of commission of offence : 29-03-2014
02. Date of report of offences to
the Police Station (FIR date) : 14-05-2014
03. Date of arrest of accused : -
04. Date of release of accused
from JC : -
05. Name of the complainant : Lokayuktha
Police.
06. Nature of offence complained : U/S.Secs.
13(1)(e) R/w
Sec.13(2) of
Prevention of
Corruption Act
1988.
07. Date of submission of
charge sheet : 19-04-2017
08. Date of commencement of
recording of evidence : 05-06-2018
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Spl.C.C. No.191/2017
09. Date of closing of evidence : 10-12-2021
10. Date of judgment : 28-07-2022
11. Opinion of the Judge in
respect of the offences. : Accused is
acquitted.
*****
JU DG ME N T
1. The Police Inspector, Karnataka Lokayuktha, Bengaluru Rural earlier had filed the source report and FIR against the accused for the offences punishable under Secs.13(1)(e) r/w Sec.13(2) of the Prevention of Corruption Act, 1988 which was later transferred to the City Division Bengaluru of the K.L.A., who filed the charge sheet.
2. The brief and germane facts of the prosecution case being that:
(a). The accused was the Government 4 Spl.C.C. No.191/2017 servant working as the Junior Engineer (Electrical) at BDA, Bengaluru, he was promoted as the Asst.Executive Engineer, BDA, Bengaluru. When on 29-03-2014 the Karnataka Lokayuktha conducted raid and search of the accused premises, they found that the accused and their family were possessing assets worth Rs. 2,43,58,044/-, their family expenditure was Rs. 78,90,743/-, the total income of their family was Rs.
2,31,00,714/-. The IO had considered the check period for the above said purpose from 01-01-1986 to 29-03-2004 and the IO found that the accused was possessing a sum of Rs. 91,48,073/-, which was the disproportionate assets to the known source of income, which accounted for 39.61%. In spite of the investigating agency according reasonable 5 Spl.C.C. No.191/2017 opportunity to the accused to satisfactorily account for the same, but the accused failed to convince them in this regard. Hence, it is the case and allegation of the prosecution that, the accused has amassed wealth disproportionate to his known source of income, which has resulted in, the AGO displaying criminal misconduct, thereby has committed the above stated offences.
3. After securing the presence of the accused before the Court, he was duly enlarged on regular bail. As per mandatory compliance and vide Sec.207 of Cr.P.C., prosecution papers were supplied to him. Immediately, after receipt of the prosecution papers, the accused has also moved an application under Sec.227 r/w Sec.239 of Cr.P.C. seeking for his 6 Spl.C.C. No.191/2017 discharge before framing of the charges. This Court after hearing that application, by calling for the objections of the prosecution rejected that application on merits. As there were prima-facie materials to proceed against the accused, this Court duly framed charges against the accused, read over to him in his known language, to which, the accused having understood the imputations leveled against him, pleaded not guilty and claimed to be tried.
4. In order to bring home the guilt of the accused, the prosecution in all has examined PWs.1 to 14 and exhibits at Ex.P.1 to P.174 came to be marked. The prosecution did not got identified any of the material objects. As there were incriminating evidence found against the accused, statement as contemplated under 7 Spl.C.C. No.191/2017 Sec.313 of Cr.P.C. came to be recorded, which was read over to the accused in the language known him, who understood the same denied all those incriminating evidence and preferred to adduce both oral and documentary evidence. In response to the opportunity extended by this Court, he got examined himself as DW. 1 and Ex.D. 1 to D.17 came to be marked.
5. Heard the arguments.
6. During the course of arguments, the learned defence counsel, who entrusted this brief to the Senior Counsel of the Honble High Court, Mr.Murthy D.Naik argued the matter and submitted list with citations. I have gone through them carefully in detail. 8
Spl.C.C. No.191/2017
7. The fresh points that crop up for my consideration are as follows:
1) Whether the prosecution proves beyond all reasonable doubt that when the accused being the Government servant, more so joined the BDA as the Junior Engineer (Electrical), Bengaluru, then got promoted as the Asst.
Executive (Electrical) Engineer, BDA, Bengaluru and when on 29-
03-2014 the Karnataka Lokayuktha Police conducted raid and search of the accused premises, he and his family were possessing assets worth Rs.
2,43,58,044/-, their expenditure was Rs. 78,90,743/-, their known source of income of was Rs.
2,31,00,714/- for the check period 1-1-1986 to 29 - 3- 2004 and the accused was found to be possessing assets disproportionate to his known source of income in sum of Rs. 91,48,073/-, which accounted for 39.61% and in spite of the Karnataka Lokayuktha extending an opportunity to 9 Spl.C.C. No.191/2017 satisfactorily account for the same, the accused failed to do so. Hence, according to the prosecution the accused has involved in commission of offences and criminal misconduct and thereby, has committed offences punishable under Secs.13(1)(e) r/w Sec.13(2) of the Prevention of Corruption Act, 1988?
2). What order?
8. After carefully going through the materials available on record and also taking into consideration the facts and circumstances of the case, my findings to the above points are as under:
POINT NO.1 : In the negative.
POINT NO.2 : As per my final order
for the following:
REASONS
POINT NO.1:
9. When the Learned Sr.Counsel who represented 10 Spl.C.C. No.191/2017 the accused counsel addressed his arguments, it was mainly in three folds. The first attack was that even though this case was registered before the Rural Division of Karnataka Lokayuktha, but was subsequently transferred to the City Division, Bengaluru and if at all the Police Inspector who has filed the charge sheet claims to have conducted the investigation was not an authorized Officer. He further went on to submit that at the very first instance, the main glitch is that the mandate of Sec.17 of the Prevention of Corruption Act, 1988 has been thrown to shackles. Coming to the second limb of the argument is attacking the prosecution case on the ground that when the raid and search of premises of the AGO and his family members bank lockers at the Karnataka Bank, BTM Branch locker were searched, the 11 Spl.C.C. No.191/2017 Investigating Agency has not followed the proper procedure. He went on to elaborate in that regard that the search conducted by the Police Inspector with his team to the place where they have not at all obtained the search warrant from the jurisdictional Court.
10. He further attacked the prosecution case on the ground that when the alleged search in the premises of the house of the accused when was going on, as the accused has left the place saying that he has to answer the nature call, all of a sudden the investigating team led by the Police Inspector left that place and straight away proceeded to the Karnataka Bank Ltd. to open the bank locker by breaking open it. When the search of the house of the accused was not completed without there being a 12 Spl.C.C. No.191/2017 search warrant this Police Inspector and his team have all the way went out of the house which raises doubt as to the claim of the IO that the raid conducted by them was genuine and in accordance with law established. The third contention and attack of the accused was that, so far as the seizure of the gold and silver articles are concerned, their values were taken into consideration for the purpose of calculation, which were on approximate basis.
11. He further went on to explain in this regard by arguing that even in respect of household articles, no acceptable yardstick was adopted which can show that when the value of either household articles or gold and silver articles were taken into consideration, their minute details, such as year of their 13 Spl.C.C. No.191/2017 purchase, the quality of gold and silver, depreciation, etc. have also not been considered. Under such circumstances, according to this accused, if this Court were to attach any weightage or some value to the ocular evidence of the prosecution case, then there is no acceptable documents at all. It is also one of the grievance that when the AGO has declared in his ITRs and APRs in respect of his assets and income, intentionally they have not been considered. The usual contention is that the prices of the assets and expenditure have been inflated whereas the income is shown on lower side only to file the charge sheet against the accused and nothing else.
12. To answer the same, the Learned Public Prosecutor countered the alleged attack by 14 Spl.C.C. No.191/2017 arguing that Sec.17 of the Prevention of Corruption Act, 1988 has been complied with by stating that the alleged letter given by SP, Lokayuktha has to be considered as an authorization, wherein the Police Inspector who has undertaken the investigation was well within his limits to undertake further investigation in this matter. So far as, IO taking into consideration the approximate value of the gold and silver articles, when raid took place, the the Learned Public Prosecutor was of the contention that even the family members were present at the time of raid, their views have also been taken into consideration, so it will not lie in the mouth of the accused to contend to the contrary now. Lastly, so far as IO not considering the reply and schedules of the AGO is concerned, only by considering all 15 Spl.C.C. No.191/2017 those aspects final report has been submitted. Hence, the contentions raised by the AGO are general in nature, so prayed this Court to reject them on their face value.
13. The AGO who has taken the responsibility of rebutting the case of the prosecution having answered even though Sec.313 of the Cr.P.C. statement also given his oral evidence with documents at Ex.D. 1 to D.17. It is in this context, it has to be mentioned that even though the concerned IO who undertook the further investigation took permission of this Court to retain the seized properties which also included the documents did not bothered to get it identified during the course of trial. In this regard, no explanation on the side of the prosecution is forthcoming.
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Spl.C.C. No.191/2017
14. As I have said earlier, the prosecution has mainly examined 14 witnesses and to begin with PW. 1 is by name Sri.M.S.Srinivas. S/o Subbarao M.R., who was the Police Inspector. According to him, on 30-04-2014, his ADGP has issued a memo to the SP directing them to re-register the Bengaluru Rural Police Station Cr.No.9/2014 in their City Division jurisdiction. So, on 12-05-2014, his SP wrote a letter to him to re-register the Bengaluru Rural Lokayuktha Station Cr.No.9/2014 in their police station crime number. On 14-05- 2014, CW.2 Subramanya Police Inspector wrote a letter to SP that he was transferring Cr.No.9/2014 to their police station and as his SP directed him to receive the file, he registered the case in their office in Cr.No.17/2014 on 14- 05-2014. Through this witness FIR at Ex.P. 1 17 Spl.C.C. No.191/2017 came to be marked and the letter of the SP at Ex.P. 2 and lastly letter of the ADGP sent to SP is marked at Ex.P. 3. So, Ex.P. 1 to P.3 are to prove the fact that even though KLA Cr.No.9/2014 was registered with Bengaluru Rural Division, but it got transferred to the City Division and renumbered as crime No.17/2014 on the question of jurisdiction point.
15. Coming to the evidence of PW. 2 by name Wazeer Ali Khan, who was the Police Inspector , KLA Rural. According to him, as he had received a credible information in respect of the accused possessing assets disproportionate to his known source of income, he conducted an enquiry and came to know that the assets of the AGO and his family 18 Spl.C.C. No.191/2017 members were to the tune of Rs. 81,40,000/-, out of which movable properties were worth Rs. 17,25,000/-, total assets was to the tune of Rs. 98,65,000/-, expenditure was Rs. 45,00,000/-, known source of income was around Rs. 60,00,000/- and at the initial stage, the disproportionate assets of the accused found to be Rs. 83,65,000/-. So, it came up to Rs. 139%, so prepared a source report which he submitted to his higher authorities which came to be marked through this witness at Ex.P. 4.
16. Coming to the evidence of PW. 3 by name Arun Patil, who was a typist in the KGID department and according to him, he and CW.7, Nagarathna were deputed to Lokayuktha office to assist them in their investigation. 19
Spl.C.C. No.191/2017 According to them, on 28-03-2014, they went around 5.00 a.m. to KLA office and they were taken in a team by the IO to the AGO's house situated at BTM Layout. He also spoke about how they entered the house of the accused and when the IO rang the door bell, this AGO came and opened the door, then mutual introduction took place, formalities of showing the search warrant and identity card was completed and according to this person, he saw 3 cars and 2 two wheelers parked inside the compound of that house, said cars are of Ford Icon, Renault Duster and Hyundai Verna and out of 2 two wheelers, one was a pulser bike and another one was a hero Honda Bike According to him, he also noticed electrical meters installed, then they went inside the main hall of that house, he found Samsung TV with stand, Telephone 20 Spl.C.C. No.191/2017 and other household articles and when they went inside the bed room, hard cash of Rs. 8,40,000/-, 313 grams of golden articles, 2kg. 602 gms. of silver articles were found, both gold and silver articles got tested by an appraiser who checked and determined its market value. According to this person, gold rate was fixed at Rs. 2,000/- per gram, silver at the rate of Rs. 40/- per gram. It is also the say of this witness that the IO found gold ornaments worn by the daughter of the accused and he enquired as to what was the source of income, to which, the AGO's daughter replied that they were all presented to her at the time of her marriage by her In-laws. The panchanama at Ex.P. 18 came to be marked and also files at Ex.P. 7 to 15 came to be seized.
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17. According to this witness, from there, they proceeded to search the other rooms and they entered the dinning hall, they found some valuables and consumer durables and he has spoken about the IO drawing the inventory obtaining the signatures of them and daughter of the accused by name Chandana in those documents. Through this witness, each documents which were seized in his presence at Ex.P. 19 to 24 came to be marked. Then, according to him around 1 p.m. they went to the Karnataka Bank, BTM layout, Bengaluru and the IO got opened the locker of Smt.Chandana, the daughter of the accused and they found 917 gms. of golden articles and 648 gms. of silver ingot. The IO had secured the appraiser by name Sathyanarayana, who valued the gold and silver articles, fixed the 22 Spl.C.C. No.191/2017 price of the gold as Rs. 2,900/- per gram, silver as Rs. 43/- per gram and cash of Rs. 14,500/- was found in that locker. Separate mahazar was drawn at Ex.P. 26 and he has signed this document with others.
18. Coming to the evidence of Smt.Saira Nasem, according to this lady, she had worked as the Asst. Engineer PWD and on 11-07-2014, her Executive Engineer received a letter from KLA with a request to inspect two buildings one situated at N.S.Palya and another at BTM Layout. According to this lady, on 14-07-2014, her Executive Engineer wrote a letter to their Asst. Executive Engineer with a direction to inspect the above said buildings and to evaluate the market value of the said buildings. As there was no mention about the year of 23 Spl.C.C. No.191/2017 construction, they sought clarification from the Lokayuktha office in that regard.
19. According to this witness, on 08-01-2015, she had been to that properties along with one Police Inspector by name Subramanya and as per the direction of the Asst. Executive Engineer, first she visited the buildingNo.74, situated at BTM Layout, which consisted of ground, first and 2nd floor with a car parking area. According to this witness, the entire building was measured , it had a RCC roofing, granite flooring was done, teak wood was extensively used, car parking, floor wall with Mangalore Tiles and the building was constructed in the year 2010-11. According to this witness, the total measurement of this ground floor was 1341.66 sq.ft., 1st floor was 24 Spl.C.C. No.191/2017 1325.04 sq.ft. and the 2nd floor was 374.94 sq.ft. Car parking slot was found to be 395 sq.ft. To estimate the value of the entire building, this witness adopted the guidelines issued by the Department of Registration and Stamps for the year 2011. So, as per that guidelines, ground floor of that building was considered to be Rs. 1,200/- per sq.ft., 1st and 2nd floors valuation at Rs. 1,150/- per sq.ft. and parking area at Rs. 375/- per sq.ft., so the total costs of the building and car parking area was valued at Rs. 37,13,097/- and this witness has prepared a report at Ex.P. 27 and got marked her signature at Ex.P. 27(a).
20. This PW. 4 in her examination-in-chief also given evidence touching the aspect that she also visited the property bearing No.29/22 25 Spl.C.C. No.191/2017 of N.S.Palya and it was a RCC building consisting of ground, first, second and third floors. According to her, this was constructed in the year 2005, which information was provided by the KLA police to her. All the floors were with granite flooring, the total measurement of the ground floor was 876.50 sq.ft., first and 2nd floors same measurements, 3rd floor is 787.16 sq.ft., to estimate the valuation of the entire building, according to this witness, she adopted the guidelines issued by the Department of Registration and stamps for the year 2005, as per that guidelines, valuation of the ground floor was taken as Rs. 680/- per sq.ft and on the basis of this total costs of that building worked out to be Rs;21,20,116/-. According to this witness, she has issued a valuation report, through this 26 Spl.C.C. No.191/2017 witness it came to be marked at Ex.P. 29 and 29(a) is her signature.
21. Coming to the evidence of one K.N.Kantharaju, who was the Dy. Director of statistics attached to the KLA and when he was working as the Dy.Director in the said department, on 2-12-2016, the SP, Lokayuktha, Bengaluru Division has sent a request to prepare the family expenditure of the accused by furnishing the total income of the accused and his family members from his known sources and also their food habits. According to this witness, he has considered the date of entry of the accused into service, his income and the prevailing price of the food articles till the date of search and raid of this premises. This witness also prepared the 27 Spl.C.C. No.191/2017 general family expenditure of the accused by adopting the General Family Income and Expenditure Survey of 2009 and the year wise All India Consumer Price Index was also taken into consideration. This witness further goes on to depose that according to his calculation, the total invisible and non verifiable expenditure of the accused and his family members was Rs. 12,14,413/-. So, he has submitted his report with covering letter including the working sheet, which are marked as Ex.P. 31 and 32.
22. Coming to the evidence of PW. 6 by name A.C.Chandrashekar, who was the Asst.Director of Agriculture and in his examination-in-chief, according to this witness, when he was working in that capacity at Mudigere in 28 Spl.C.C. No.191/2017 Chikkamagaluru District, on 14-07-2016 he received two letters dtd.25-6-2016 from the Police Inspector, No.2 of Karnataka Lokayuktha, Bengaluru Rural and he was requested to furnish the agricultural income of the AGO with respect to his land bearing Sy.No. 212/P of Daradahalli Village and in another letter there was also a request to furnish the agricultural income of the AGO in respect of Sy.No. 3/7P3, 4/4 and 24/P of Mekanagaddi Village of Mudigere Taluk. The IO has also requested him to furnish the agricultural income of the accused for the period commencing from 1986-87 to 2013- 2014 and after receipt of the said letters, he forwarded the same to his Asst. Agricultural Officer, R.S.K.Kasaba to visit those lands and prepare the agricultural income of the accused 29 Spl.C.C. No.191/2017 and his family members. He forwarded another letter to Sri.N.K.Puttaswamy, Asst. Agricultural Officer, R.S.K.Gonibeedu to visit the said lands and prepare the agricultural income of the accused and his family members. As per the directions, both the Asst. Agricultural Officers have visited those lands and have submitted Ex.P. 37 to 39 which were submitted to the Karnataka Lokayuktha police.
23. Coming to the evidence of PW. 7 Sri.Venkataraju, who was the Sr. Liaison Officer of the Coffee Board, according to him, when he was discharging his duties as that of Liaison Officer with the Coffee Board, Mudigere, under his supervision, the Jr. Liaison Officers of Kalasa, Devarunda and Gonibeedu were also working at that relevant 30 Spl.C.C. No.191/2017 point of time and one Mr.Manjunath was the Asst. Extension Officer at Devarunda, on 27- 06-2016, they received a letter from Police Inspector, Karnataka Lokayuktha, Bengaluru and they had requested them to furnish the details of income of the AGO from his coffee plantation situated at Dasarahalli Village. As their office has not maintained individual details of each coffee grower in Mudigere taluk, they could not submit any documents in this regard. So, according to this witness, this fact was made known to the Lokayuktha police through their report and covering letter, which came to be marked at Ex.P. 33 and P.34.
24. Coming to the evidence of PW. 8 Prashanth H.S. who was a goldsmith by profession and owner of Navarathna jewellers 31 Spl.C.C. No.191/2017 at JP Nagar, Bengaluru. In the month of March 2014, he was summoned by the KLA police to the house of the AGO situated at BTM 2nd stage, Bengaluru and in that house, the Lokayuktha police shown some gold, silver, diamond and platinum articles and requested him to appraise in respect of them.
25. According to this witness, he found gross weight of 312 grams of gold articles and its net weight was 302 grams, so far as diamond studs were concerned, he valued them in a sum of Rs. 1,15,000/-. He came across one platinum ring weighing 3.5 grams and he fixed his approximate value was Rs. 13,500/-, he claims to have estimated the gold value at the rate of Rs. 2,000/- per gram and silver articles which weighed 2 kgs. 600 grms., he estimated 32 Spl.C.C. No.191/2017 the value of the silver at the rate of Rs. 40 per grams.
26. There is also evidence given by this appraiser that after a week of visiting AGO's house, again Lokayuktha police called him to Karnataka Bank, BTM Layout for appraising the articles kept in a bank locker. The total weight of the said gold articles was 917 grams, out of which 46 grams of gold was pure. He estimated the value of the pure gold at the rate of Rs.2,900/- per gram and its total costs was Rs. 1,33,000/-. The remaining 871 grams of ornament was valued at the rate of Rs. 2,000/- per gram and its total value was Rs. 17,42,000/-. He also found a silver ingot/bar weighing 648 grams. He estimated the value of the silver bar at the rate of Rs. 43/- per gram 33 Spl.C.C. No.191/2017 and its total value was Rs. 27,800/-. He also acknowledges the receipt of Rs. 500/- as his remuneration and he has issued a receipt to the Karnataka Lokayuktha which he has marked at Ex.P. 36 by identifying his signature at Ex.P. 36(a).
27. Coming to the evidence of PW. 10 by name Sri.Bhaskar Naidu who was the Secretary in J.P.Nagar, Cultural Association, Bengaluru and he received a requisition from the Subramanyapura Police Station with a request to furnish the details of the AGO in respect of his membership in that association, then he verified the association records and issued a letter to the concerned police and through this witness, letter at Ex.P. 41 and signature on that document at Ex.P. 41(a) came to be 34 Spl.C.C. No.191/2017 marked.
28. Coming to the evidence of PW. 11 by name P.Raju, who was the Manager of District Vokkaligara Samudaya Bhavana, Chikkamagaluru give evidence that on 7-06- 2016, he received a letter from the KLA with a request to furnish the performance of marriage of daughter of the AGO Smt.Chandana in their Samudaya Bhavana. After verifying the records, he issued the letter to the Lokayuktha along with the advance receipt, which is at Ex.P. 43 and he identified his signature at Ex.P. 43(a). According to this witness, the AGO has paid an advance amount of Rs. 60,000/- and final settlement amount was Rs. 59,724/-, wherein they have returned an amount of Rs. 276/- to the AGO.
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29. Coming to the evidence of PW. 13 by name K.P.gangadhar Acharya, who was the ARTO at the relevant point of time and on 19-07-2014, the KLA police one Subramanya requested him to furnish the details of maintenance expenses, 'B' register extracts and purchase of the said vehicles by the AGO and according to him by examining the records, he has issued Ex.P. 149, 162 and 150 respectively to the Lokayuktha police.
30. Coming to the evidence of PW. 14 G.M.Kirshnan, who was the Manager in Aparanji Jewellers Pvt.Ltd. and in the year 2014, the Lokayuktha police had sent a letter with a request to furnish the details of purchase of jeweleries by the AGO under their scheme. After receiving that letter, they have 36 Spl.C.C. No.191/2017 suitably replied. Through this witness that letter came to be marked at Ex.P. 137. He also has deposed that under the Special Scheme, the AGO has paid installment amount of Rs. 80,000/- and the said scheme was taken in the name of wife of the AGO Smt.D.M.Shobha amd according to him, said Shobha was the member in that scheme and availed the benefit.
31. Coming to the evidence of PW. 9 by name Pradeep Kumar who was the Police Inspector has given his evidence stating that when he was working as the Police Inspector, KLA, Bengaluru Rural District on 10-01-2016, he took charge of that office from one Sri.Dayananda and on 10th of March 2016, his SP issued a memo directing him to take charge 37 Spl.C.C. No.191/2017 of this case from his predecessor Dayanand. Through this witness the authorization letter at Ex.P. 40 came to be marked. Further in his examination-in-chief he also spoke about how he undertook further investigation in this case. More particularly on 28-05-2016, he wrote a letter to the Secretary, J.P.Nagar Cultural Association, Bengaluru calling upon them to furnish membership details of the accused and he received the reply vide Ex.P. 41. Again on 30th may 2016, he wrote a letter to the Manager, Capital Hotel, Bengaluru asking them to furnish engagement expenses of Kum.Chandana, daughter of the AGO and received a reply vide Ex.P. 44 and 45.
32. It is also found in his examination-in-chief that on 04-06-2016, he addressed a letter to 38 Spl.C.C. No.191/2017 the Manager, Chikkamagaluru Vokkaligara Samudaya Bhavan to furnish the marriage expenses of the daughter of the accused and received the reply vide their letter dtd.16-06- 2016, both covering letter and the reply are marked at Ex.P. 42 and 43. On 07-06-2016, he addressed a separate letter to the income tax officer asking them to furnish the income tax returns of the son of the accused by name Abhishek and received the reply on the same date, that document is marked at Ex.P. 46. On 14-06-2016, he addressed a letter to the Deputy Secretary, Department of Energy, Vikasa Soudha, Bengaluru to furnish the particulars of electrical contract license given to the wife of the accused Smt.Shoba and the amount deposited and amount collected for its renewal. By return of post, i.e. on 2-9-2016, 39 Spl.C.C. No.191/2017 he received a reply vide Ex.P. 47 and 48. On 18-6-2016, he collected service particulars of the AGO from the Service Register, BDA, that document is accepted by this witness in this case at Ex.P. 49.
33. According to PW. 9, on 24-6-2016, he wrote a letter to the Manager, Vijaya Bank, Sarakki Branch, Bengaluru to furnish the loan details of the wife of the accused Smt.Shoba and received the reply on 30-6-2016, which came to be exhibited at Ex.P. 50 and P.51. According to him, on 25-06-2016, he wrote a letter to the Sr. Liason Officer, Coffee Board, Mudigere of Chikkamagaluru to submit the year wise details of the crops grown by the accused in his land bearing Sy.No. 297 of Daradahalli Village. Vide Ex.P. 33, he received 40 Spl.C.C. No.191/2017 the reply with document which is exhibited in this case.
34. On 25-06-2016, he wrote a letter to the Asst. Director of Agriculture, Mudigere calling upon him to submit year wise details of the crop grown by the accused and his annual income received from the agricultural lands in respect of Sy.No. 3/7P3, 4/4, 24/P of Mekangadde Village. Those documents are exhibited at Ex.P. 52.
35. According to PW. 9, on 25-06-2016 he addressed a separate letter to the Asst. Director of Horticulture, Mudigere to submit the year wise details of the crops grown by the accused and his annual income from his land in Sy.No. 213 of Daradahalli Village, that 41 Spl.C.C. No.191/2017 document came to be marked at Ex.P. 53. There is an evidence given by this witness that on 30-6-2016, he addressed a letter to the Manager, met Life India to furnish the insurance policy details of the accused's daughter Chandana and that document is marked at Ex.P. 54 and 55. According to this witness on 13-07-2016, he received the details of the income of the accused from the land bearing Sy.No. 297 of Daradahalli from Coffee Board Authority, that came to be marked at Ex.P. 34 and 35.
36. On 11-7-2016, he caused notice to the accused with a direction to produce the details in respect of agricultural income and that notice is marked at Ex.P. 56. He also casued another notice to the accused to keep his 42 Spl.C.C. No.191/2017 tenants before this witness for enquiry. Copy of the said notice is marked at Ex.P. 57.
37. This witness also deposes that on 11-7- 2016, he issued a notice to the accused to keep his lenders present who advanced hand loans to him, that copy of the same altogether marked at Ex.P. 58. On 18-07-2016, he addressed a letter to the BDA to furnish the land line phone details of the residential house of the accused and that document is also marked at Ex.P. 59. On 19-07-2016, he addressed a letter to the RTO, Jayanagar, calling upon him to furnish the details in respect of vehicle bearing registration No.KA-05 HJ 3771 and that document is marked at Ex.P.
60. Then on 25-8-2016, he received a letter from the passport authority furnishing the 43 Spl.C.C. No.191/2017 details in respect of the accused and his family members. That document also came to be marked at Ex.P. 61. On 01-9-2016, he wrote a letter to the Manager, Syndicate Bank, Mudigere to furnish the Hindu Undivided Family details of the accused and his family members as per the Banker Book of Evidence Act and those documents are marked at Ex.P. 62 and 63. On 1-9-2016, he addressed another letter to the Manager, State Bank of India, Mudigere Branch to furnish certificate under Sec.65 of The Indian Evidence Act in respect of bank details of Smt.Shobha wife of the accused. That was marked at Ex.P. 64 and
65. On 01-09-2016 and 21-09-2016 he had addressed similar letters to the Manager, SBI Mudigere and Manager, SBI, JP Nagar Branch, Bengaluru to furnish details in respect of 44 Spl.C.C. No.191/2017 Sec.65B of the Indian Evidence Act Certificate.
38. Likewise, on 21-09-2016, he addressed similar letters to the Manager, Karnataka Bank, Sarakki Branch, Bengaluru to furnish the certificate under Sec.65B of the Indian Evidence Act. These notices are together marked at Ex.P. 70 to P.77. On 26-09-2016, he addressed a separate letter to the Sr. Superintendent of Post Office, Jayanagar, Bengaluru to furnish the details in respect of R.D. and S.B. accounts of Smt.Shobha and those documents are marked at Ex.P. 78 and
79. On 29-11-2016, he collected the IT returns of Smt.Shobha by submitting his requisitions. They are marked at Ex.P. 80 and 81. On 30- 08-2016, he received the report of Horticultural Director in respect of horticultural income of 45 Spl.C.C. No.191/2017 the accused from his land in Sy.No. 213 of Daradahalli Village, which is marked at Ex.P.
156. On 22-07-2016, he received the certified copy of the sale deed executed by the AGO in favour of Thimmegowda with encumbrance certificate, they are together marked at Ex.P.
157. On 14-07-2016, he had sent a requisition to the Sub-Registrar, Kengeri with a request to furnish the details of the sale deed executed by the accused in favour of one Shailaja and sale deed executed by Anjaneya House Building Society in favour of the AGO, that letter is marked at Ex.P. 158.
39. On 14-07-2016, he sent another requisition to the Sub-Registrar, Kengeri to furnish details of the sale deed executed by Smt.Shobha in favour of A.R.Srinivas, that 46 Spl.C.C. No.191/2017 letter is marked through this witness at Ex.P.
159. It is the say of this witness that after collecting those documents during his investigation and also considering the schedules, he assessed the disproportionate assets and prepared the final report. As per his calculation, the accused was possessing assets worth Rs. 2,43,58,044/-, total expenditure was Rs. 78,90,743/-, known source of income was Rs. 2,31,00,714/- and possessing disproportionate assets to the tune of Rs. 91,48,073/-, which accounted for 39.61%. The final investigation report is marked through this witness at Ex.P. 160 and his A,B,C,D statements together came to be marked at Ex.P. 161. He has also given some admission that there was some arithmetical mistake in page No.146 with regard to the 47 Spl.C.C. No.191/2017 known source of income and that has been duly taken care of in Ex.P. 161. It is also his evidence that the accused father was having four sons and three daughters and this accused happened to be the youngest son and he was entitled to 1/ 4th share in all the family properties.
40. Lastly, coming to the evidence of PW. 12 by name Subramanya, who was the Deputy S.P., CID, Bengaluru. He was also a Police Inspector in the Karnataka Lokayuktha Bengaluru Rural Division and on 28-03-2014, he received a source report prepared by Police Inspector Wazeer Ali Khan through Sri.Smt.Ashwini SP, Karnataka Lokayuktha, Bengaluru Rural Division with a direction to register a case against the accused on the 48 Spl.C.C. No.191/2017 basis of the source report. On that basis and endorsement of the SP, he registered a case against the accused and through this witness a source report at Ex.P. 4 and FIR at Ex.P. 82 came to be marked, authorization at Ex.P. 83 and search warrant at Ex.P. 84 came to be marked. On the very same day, he sent a requisition to the Director, KGID, Bengaluru to depute four officials to assist him in his investigation. On the same day around 5.30 p.m., the officials of the KGID department by name Arun Shankar Patil, M.Nagarathna, B.V.Swamy and Ashok have appeared before him and he sent them back with a direction to appear in his office around 5 a.m. on the next day. On 29-03-2014, at about 5 a.m., 4 officials have appeared before him and he informed those panchas about the raid on the 49 Spl.C.C. No.191/2017 office and residential premises of the accused and around 5.30 a.m., the entire team left in their official jeep and went to the house of the accused situated at 2nd pahse, BTM Layout, Bengaluru.
41. When they rang the door bell, one person came and opened the door and he was none other than this accused. Then all the formalities such as disclosing the identity of the raiding party and search warrant were shown to him and necessary signatures were taken on them. When they entered the premises, they found 3 cars and 2 two wheelers and that building was a duplex house. They noted down the electric meter numbers and water meter numbers and he found 14 articles which were mentioned in the 50 Spl.C.C. No.191/2017 panchanama. There is also a description in respect of wood used for construction of that building and quality of building materials and the articles found in the said house. The value of each articles found that that house are got estimated through the panch witnesses and the accused.
42. In the evidence, he states that he found gold articles weighing 312.09 gms., one pair of diamond ear stud, one platinum ring and silver articles weighing 2602 grams and he got tested all the said gold and silver articles with the assistance of an appraiser by name H.S.Prashanth, the proprietor of Navarathna Jewellers, Marenahalli, according to the appraiser, the estimated value of the gold articles was Rs. 6,05,800/-, the value of the 51 Spl.C.C. No.191/2017 diamond was estimated as Rs. 1,15,000/-, the value of the platinum was Rs. 13,500/-. Over all estimate of the gold, platinum, diamond articles were Rs. 1,04,080/- and at the time of search, they came across hard cash of Rs. 8,40,000/- in the house, out of the articles found, this IO retained a cash of Rs. 8,40,000/- and returned gold, silver, platinum and diamond articles along with other household articles to the accused. At the time of search, according to this witness, he asked the accused to produce any of the documents or receipts possessed by him in order to show the source of valuables possessed by them. But, according to him, the accused failed to do so.
43. It is also the evidence of this witness that 52 Spl.C.C. No.191/2017 during that raid, marriage of the accused's daughter Kum.Chandana was solemnized and in that marriage, the accused was given gold and silver articles to his daughter as a gift. In that regard, Smt.Chandana has submitted her written explanation and it is marked through this witness as Ex.P. 6. It is the evidence of this witness that this accused escaped from his house by saying that he is going to wash room to attend natures call, but he did not come back. In the absence of the accused, search was undertaken in the presence of the accused's son Abhishek and daughter Chandana. They found 96 documents in the house of the AGO and all these were marked at Ex.P. 7 to 12. According to this witness, he came across the marriage invitation card of Kum.Chandana and 3 personal diaries. They 53 Spl.C.C. No.191/2017 were got marked at Ex.P. 13 to P.16. At the time of search, this witness came to know that the accused was having a bank locker in Karnataka Bank, BTM Layout, Bengaluru and on enquiry, the family members of the accused told him that they does not know who was holding the key. So, this witness went to that bank along with panchas, got the said locker seized by giving his requisition to the Bank Manager, then drew mahazar in the said bank and said panchanama came to be marked at Ex.P. 17.
44. It is the evidence of this witness that again he returned back to the accused house at 2 p.m. and continued his search, then he found passports of the accused and his family members. He prepared a mahazar, obtained 54 Spl.C.C. No.191/2017 the signatures of panchas, children of the accused Abhishek and Chandana, which is marked at Ex.P. 18. After returning to office, he deposited the seized articles in their station P.F.No.18/2014 and sent the same for obtaining permission from the Court. According to this witness, on 1-04-2014, accused appeared before him in his office and also submitted the original documents pertaining to the immovable properties, which are marked at Ex.P. 85 and 86. On 1-4-2014, he caused a notice to the Secretary, BDA to produce the APRs. of the accused. Again on 02-04-2014, the accused appeared before him and produced 6 original sale deeds pertains to the immovable properties standing in his name and in the name of his wife, which are marked at Ex.P. 19 to 24. On 2-4-2014, he went to the 55 Spl.C.C. No.191/2017 Karnataka Bank, BTM Layout branch, Bengaluru with panchas to get the locker opened with the assistance of Branch Manager by issuing notice to the Manager, which is marked at Ex.P. 87 and they found 32 items of gold articles weighing 917.02 gms. and 648 grams of silver ingot, which was identified by goldsmith by name H.S.Prashanth and estimated the value of the gold articles at Rs. 18,75,400/- and silver ingot at Rs. 27,864/- and in the same locker, he found hard cash of Rs. 14,500/-.
45. According to this witness, he seized hard cash of Rs. 14,500/- and returned gold and silver articles to the accused with a direction to produce before the Court as and when directed. The appraiser statement and 56 Spl.C.C. No.191/2017 panchanama with list are marked at Ex.P. 26. This witness also spoken about issuing notices to various Officers, authorities and collecting documents vide Ex.P. 88 to 168. According to this witness, all the documents collected by him were compiled, then he has handed over further investigation of this case to his successor PW. 9 Praddep Kumar as directed by SP, Lokayuktha, Bengaluru Rural Division. The accused having answered incriminating evidence that stood against him u/Sec. 313 of the Cr.P.C., was again forceful in submitting before the court that I.O. of this case has adopted wrong approach not only in conducting investigation but also placing improper and incorrect calculation before the Court. When I.O. had no credible documents in respect of different rates of assets items they 57 Spl.C.C. No.191/2017 have been very badly inflated. So with this background he chose to give his defence evidence.
46. Initially this accused partly got himself examined his examination in chief by giving his oral evidence. He deposed that on 01.01.1986 he joined BDA as the Junior Engineer and on 31.03.2015 he retired from the service as the Asst. Executive Engineer. Prior to joining the service on 01.01.1986, accused was the original resident of the Mekanagadde village, Gonibeedu Hobli, Mudigere Taluk of Chikmagalur District. His parents had four sons and three daughters and he happens to be the youngest son. It is also the evidence of this witness that their family possessed 23 acres and 19 guntas of agricultural land and 58 Spl.C.C. No.191/2017 they were growing commercial crops like Cardamom, Pepper, Coffee, Paddy, Banana and Ginger. It is also the evidence of this accused that from the beginning they are agriculturist and he was getting 1/4th share in all the agricultural income from those agricultural lands.
47. It is also the evidence of this witness that village accountant had visited their agricultural land but, even though the said village accountant had collected information in respect of their agricultural income but, I.O. has not taken into consideration this aspect while calculating. According to this AGO he had two children they are, a daughter by name Chandana and a Son by name Abhishek. His daughter Chandana became a software 59 Spl.C.C. No.191/2017 engineer in 2009 and then his son Abhishek also became a software engineer.
48. According to this DW.1 their family had totally 23 acres 19 guntas of land more particularly one acre 13 guntas in Sy.No.2/P1, 3 acres 20 guntas in Sy.No.3/7P3, 25 guntas in Sy.No.4/7P3, 1 acre 31 guntas in Sy.No.14/1, 1 acre 21 guntas in Sy.No.14/3, 35 guntas in Sy.No.15, 30 guntas in Sy.No.34, 2 acre 29 guntas in Sy.No.26/P3, 2 acres in Sy.No.26/P3, 3 acre 2 guntas in Sy.No.60, 3 acre 23 guntas in Sy.No.67 and 2 acres in Sy.No.94. It is also the evidence of DW.1 that he has produced the RTC extracts in respect of these agricultural lands to show that they belonged to his father's family i.e. some are ancestral in character. According to this 60 Spl.C.C. No.191/2017 witness name referred as Giddegowda @ Veerappa gowda in those RTC extract refers to his father's name and through this witness respective RTC extract at Ex.D.4 to Ex.D.15 came to be marked. Again this witness has reiterated that inspite of producing these documents to the I.O. to consider the fact that he was also drawing agricultural income apart from his salary they were not taken into consideration by that police officer.
49. Further in his examination in chief, this DW.1 deposes that on the basis of the source report, submitted by the PW-2 at Ex. P-4, investigation was undertaken by the Lokayukta police and they have filed this charge sheet. Again this DW.1 reiterates that on the face of the materials and records produced by the 61 Spl.C.C. No.191/2017 prosecution along with the final report clearly establishes the fact that property possessed by him are well within the source of income as the net income is by far above assets and expenditure values and prices. Further he has attacked the source report submitted by police inspector by name Wazeer Ali Khan of the KLA that same is misconceived.
50. According to the DW.1 the important of aspect of search and seizure are concerned it has been undertaken by the officer of the police inspector rank who was not an authorized officer u/Sec. 17 of the PC Act of the 1988 under such circumstance, the entire investigation stands vitiated. It is also the attack on the part of the AGO that valuation of household articles determined by the police 62 Spl.C.C. No.191/2017 inspector are on approximate basis so there is no basis and no authentication forthcoming to fortify the stand that the rates of household articles considered by the I.O. are correct for the purpose of calculation. It is also vehemently attacked by the accused that the police inspector who conducted the search and raid, valued the articles like gold and silver in an unscientific manner and has recorded the statement of the Mahazar witnesses but has exhibited his lack of professionalism. According to this witness valuations have not been done by the approved valuers or custom appraisers.
51. According to the DW.1 without there being any rationale, even then inflated rates are incorporated in the Mahazar. But explanations offered by the inmates of the house during 63 Spl.C.C. No.191/2017 search and raid concerning articles which include customary wedding gifts have been wantonly ignored by the police inspector in an arbitrary manner. According to the accused the entire prosecution launched against him is illegal and stands vitiated. According to this AGO the I.O has considered check period as 01.01.1986 to 28.03.2014 ie., the date of search on 29.04.2014 so the check period determined by the I.O. does not provide an comprehensive picture of neither accused nor his family's income and their economic status. According to this accused, he was married even prior to entering into the service. So the traditional and customary wedding gifts given at the time of his marriage, in the form of gold, silver and other household articles should have been excluded in determining the alleged 64 Spl.C.C. No.191/2017 extent of disproportionate asset. This witness joined the BDA in the year 1980 as a daily wage employee and his service was regularized on 01.01.1986. The I.O. has not determined the probable income, assets and expenditure prior to the date of entry into service. This approach in this cae the I.O. has not adopted.
52. The I.O. during his investigation has sought details under schedule No.1 to 16B through competent authority and he has furnished the entire details with satisfactory explanations with all relevant documents. Inspite of providing the same, the I.O has suppressed the material facts. According to him he has already furnished APRs and ITRs they form part of the charge sheet, but I.O has not considered the same. Even though he has 65 Spl.C.C. No.191/2017 declared agricultural income both in his ITRs and APRs which are not mandatory under the law but, they have not been considered. According to this accused, even before the I.O could under take investigation his wife Smt. Shobha was having her own independent source of income from her business, tailoring electrical contract work and was receiving rents from the properties which stood in her name. It is also his evidence that his wife Smt. Shobha had become an income tax assessee from the year 1991-92 itself. But, this aspects has not all been considered by the I.O. in a befitting manner.
53. According to this accused even though I.O had visited his agricultural properties and was convinced that he had an agricultural income 66 Spl.C.C. No.191/2017 in a sum of Rs.6,00,000/-, that has to be considered as the agricultural income of the accused for the check period. Prior to this accused becoming public servant in the BDA he was a daily wage worker in that authority and has received the salary of Rs.36,785/- this amount shall have to considered by the I.O. So the I.O. has to consider value of an asset of Rs.6,36,785/- prior to the check period. According to this accused, he admits that property No.74 BTM, 2nd stage, Bengaluru, measuring 60 X 40ft standing in the name of Smt. Shobha was purchased for a sum of Rs.1,90,000/-. The accused admits that this property transaction.
54. It is the specific evidence of the accused that in respect of the building constructed in 67 Spl.C.C. No.191/2017 the property No.74, the total value considered by the I.O. in a sum of Rs.37,13,094/- is opposed by this accused as baseless. PW.4 by name Mrs.Saira Naseem has considered the schedule of the rates for the year 2010-11 where as ground and 1st floor were constructed in the year 1994-95 itself. This rate has not been considered by the I.O. and PW.4. Therefore according to DW.1 as per his calculation total construction of this building comes to Rs.15,00.000/- instead of Rs.37,13,094/- hence an difference amount of Rs.22,13,094/- has to be deducted.
55. The another important grievance highlighted by the accused is that even though the accused does not dispute the sale consideration amount for purchase of site 68 Spl.C.C. No.191/2017 No.29 Khatha No.32, 8th main, N.S.Palya, Beguru hobli, Bengaluru, but the I.O. has wrongly considered the total value of the building in a sum of Rs.21,20,116/-. According to the I.O. he has taken into consideration value as on the date of inspection, but not on as on the date of construction so according to this accused, the court commissioner PW.4 has wrongly given her report in this regard and actual value of construction of that building is Rs.17,08,300/- so the difference amount of Rs.4,11,816/- has to be deducted from the value arrived by the I.O.
56. In respect of movable property ie., an amount of Rs.27,80,551/- shown in the SB account of the accused maintained at the Vijaya Bank is found to be incorrect. According 69 Spl.C.C. No.191/2017 to the accused, even though the check period is from 01.01.1986 to 28.03.2014 but the I.O. has considered the account statement for additional six months period hence, he has wrongly quoted the balance outstanding in the account.
57. In respect of purchase of Ford Icon car bearing Reg No.KA-05, MJ-0036 is considered by the I.O. as 8,00,000/- but in the document produced by him the purchase invoice shows it is only Rs.6,06,680/-. So the excess value of Rs.1,93,320/- shall have to be deducted from the table of calculation given by the I.O.
58. As it is, the accused has found fault with raid and seizure of his premises and bank locker at Karnataka Bank on the ground that 70 Spl.C.C. No.191/2017 when there was no any search warrant issued by the competent court the officer below the rank of Dy.S.P., has under taken this work which has become illegal. Further according to the accused an amount of Rs.8,40,000/- was seized from his house and that has shown as the asset but according to the accused, it has to be considered as the income because this is the amount that was given by C.Nagaraj for purchase of a site.
59. According to this accused, the police inspector has given the evidence that in the raid he recovered 312.9gms of gold, Diamond and Platinum and I.O. has calculated all these ornaments on an approximate basis and valued at Rs.4,79,800/- but according to the accused, this type of calculation on 71 Spl.C.C. No.191/2017 approximate basis cannot be taken because they were purchased at different periods during his service and some of them were gifted items. So according to him the value of these ornaments cannot be that figure as quoted by I.O.
60. Another ground of attack on the part of the accused was that I.O. has valued total value of Gold found in the locker No.684 at Karnataka Bank, BTM layout, Bengaluru in a total sum of Rs.18,75,400/-. This accused also repeated the same aspect that they were purchased at the different time and some of them were gifted to his daughter at her marriage. So the value arrived by the I.O is not only imaginary but there are no documents to substantiate this aspect. According to DW.1 he 72 Spl.C.C. No.191/2017 had given explanation in the schedule that totally 629.40gms of Gold were gifted by the relatives and friends during the Marriage and Birthday celebration. So the value of Rs.12,58,800/- has to be deducted from the value arrived by the I.O. ie., in a sum of Rs.23,55,200/- so the net value will be 10,96,400/-.
61. As usual, in this type of D.A. cases the main grouse of the accused will be that while valuing the household articles, either the I.O. or the Police officer who conducts the raid and search of the premises will value them on approximate basis without taking into consideration its depreciation value, date of purchase, wear and tare including maintenance and its usage. According to the 73 Spl.C.C. No.191/2017 DW.1 the total value of the household articles which also include consumer durables will be Rs.4,89,940/- but the I.O. has intentionally inflated it as Rs.9,00,000/-. So the accused highlighted these loop poles and contends that for this reason total value of the asset shown by the I.O. as Rs.2,43,58,044/- whereas according to the accused it is only Rs.1,95,57,381/-. So according to the accused, as the assets value have been abnormally taken into consideration, his income has fallen down to the lesser extent.
62. So far as income considered by the I.O. which in usual cases of this nature according to the accused will be more. Even though I.O. has taken Rs.23,00,222/- as his rental income but according to this accused it should be 74 Spl.C.C. No.191/2017 Rs.61,07,387/-. The explanation given by this accused is that both himself and his wife had jointly received rental income from 2004-05 to 2013-14 an amount of Rs.54,32,387/- and an advance amount of Rs.6,75,000/-. Again this DW.1 reaffirms that he had produced schedule and documents to confirm this aspect. So intentionally I.O. has left out a sum of Rs.24,26,472/- which is his legitimate income and under such circumstance this huge difference amount shall has to be added to the income chart prepared by the I.O.
63. Coming to another crucial aspect of I.O. not considering the agricultural income of the accused in a total sum of Rs.63,64,557/-. Before accused could give this explanation, while addressing the arguments also the Ld 75 Spl.C.C. No.191/2017 Senior defence counsel submitted that as it is u/Sec. 10(2) of the Income tax act of 1961 it is not mandatory for anybody much less for an agriculturist to give declaration in respect of his agricultural income as they are exempted but this AGO being the public servant when raid took place even then he has declared in his APRs and ITRs. But the I.O. in this case, has taken into account agricultural income only in a sum of Rs.41,60,359/- but has not considered accused agricultural income even prior to joining the government service at BDA. So the left out income which makes the big difference of Rs.22,04,200/- and has to be added to the income of the AGO and his family members. He had also given reference to the evidence of PW.12 Subramanya who was the police officer who had visited his agricultural 76 Spl.C.C. No.191/2017 lands and also checked with the crop grown like Coffee, Paddy, Banana, Pepper and Cardamom. Besides this accused furnishing RTC extract in respect of these agricultural lands I.O. himself had collected some of the documents which were revenue in nature. So, the I.O. ought to have considered the agricultural income from 1986-87 to 2013-14 but it has not been done.
64. Again I.O. committed mistake in considering the total salary of Smt. Chandana D/o accused only in a sum of Rs.14,65,779/- But I.O has not considered salary till March 2014 which comes to Rs.19,32,961/-. I.O. has deliberately committed this mistake. Likewise I.O. has considered the rental income of Smt. Shobha only in a total sum of Rs.13,80,693/- 77
Spl.C.C. No.191/2017 but in reality it should have been Rs.36,80,915/-. So I.O. has left out legitimate rental income of Rs.24,26,470/-. Lastly I.O. has taken into account income from the electrical business which was run in the name of M/s. Yashshvi Electrical business run by his wife. But, from the year 1986 to 2014 Shobha declared her income as Rs.3,96,212/- but this has not been considered.
65. The accused when he gave his oral evidence as the DW. 1 was seems to be very much concerned that the IO in not considering the some of his income which both himself and his wife Smt.Shoba received as rental incomes, earnest deposit, bank interest and loan obtained from different financial institutions and banks. But, so far as Sl.Nos.1 78 Spl.C.C. No.191/2017 to 13 of the income which is in respect of bank interest, he has not disputed. So also in respect of interest on fixed deposits at Sl.No.1 to 5 under the heading FDs have also been admitted. But, according to this DW. 1, the approach adopted by the IO in not considering some of the income having given his reply vide schedule was a cause of concern shown by him. He further makes it very clear that the IO has not taken the income received from sale of Verna Car to one Mr.D.K.Pradeep on 09-03- 2014 in a total sum of Rs. 8,50,000/-. This DW.1 connects this amount to the date of raid when the Police Inspector found hard cash of Rs. 8,40,000/- in his bed room. Under such circumstances, the income quoted by the IO for the check period in a total sum of Rs. 2,43,58,044/- is held to be incorrect and 79 Spl.C.C. No.191/2017 according to this AGO, it ought to have been Rs. 2,98,77,628/-.
66. So far as expenditure are concerned, around 46 items are admitted by the AGO. But, his cause of concern is in respect of his membership obtained to Country Club by paying an amount of Rs. 2,75,000/- which amount was paid by his relative Mr.M.K.Bhagavan and in spite of he furnishing the documents in this regard, they have ignored by the IO. So far as repayment of hand loan in a sum of Rs. 4 lakhs to Sri.Huregowda, it was paid through a cheque and this has to be deducted from the total expenditure. So, according to this AGO, his total expenditure comes to Rs. 69,55,743/- whereas according to the IO, it has been 80 Spl.C.C. No.191/2017 wrongly shown as Rs. 78,90,743/-. In a nut shell, the IO according to this AGO has committed blunder in ignoring major items of the income. He has considered some of the item of the assets and expenditure on wrong basis, which has resulted in filing of this incorrect both final report as well as charge sheet.
67. Having given this oral evidence, the accused did not examine any of the witnesses, but was content with only marking Ex.D. 1 to
17. In fact when the entire gist of oral evidence of DW. 1 is taken into consideration, the IO as well as the Police Inspector who has filed the source report were not serious enough either to prove the allegation made against this official or have not followed the proper procedure in 81 Spl.C.C. No.191/2017 conducting the raid and seizing of some of the articles from the house and bank lockers of the accused and his wife.
68. The learned defence counsel who took the help of the Sr.Counsel by name Mr.Murthy D.Naik has also highlighted before the Court that how the abuse of power has taken place by some of the Police officials of the Lokayuktha while conducting this raid because the entire raiding team headed by the Police Inspector has gone to the Karnataka Bank, BTM Layout branch and opened the locker of both the AGO and his daughter Smt.Chandana when they had not obtained any search warrant from this Court. Likewise, it was also highlighted that when spot and seizure panchanama took place, even though it is the 82 Spl.C.C. No.191/2017 say of the Police Inspector who headed the investigating cum raiding party that they found gold, silver, diamond and platinum articles, documents and hard cash but for the reasons best known, the Police Inspector who was heading the team has returned everything back to the family members of the accused by retaining only the hard cash. According to me, to some extent the Learned counsel for the defence was right that the power which is not vested with the police officer who has been issued with search warrant to conduct the raid and search of the accused premises has transgressed his limits and acted ultravirus of his power which is rather surprising. What counts is not that how the raid and search has taken place, but the prosecution must be in a position to show that th alleged raid and 83 Spl.C.C. No.191/2017 search was in conformity with the law established. In the instant case, when the spot cum seizure panchanama with the search warrant which are available in the file are gone through it rather depicts a very sorry state of affairs. With this background I would like to discuss in respect of each disputed items of assets, expenditure and income. ASSETS
69. So far as the IO in this case is concerned has considered asset No.1 in property No.74, 12th Cross, 8th Main, BTM Layout, 2nd Stage, Bengaluru. It is the version of IOs, PW. 9 and 12 that this property was purchased by Smt.Shoba on 12-08-1993 from her vendor one Lakshmi for a total sale consideration of Rs. 1,90,000/-. This aspect is clearly admitted 84 Spl.C.C. No.191/2017 by the AGO. The trouble started when when PW. 9 and 12 have considered the value of this property which consisted of 2 storied building in a total sum of Rs. 39,03,094/-. This calculation was strongly refuted by the AGO on the ground that as both the IOs PW. 9 and 12 have strongly relied upon the evidence of PW. 4 by name Saira Naseem who was the Asst. Engineer with PWD who was deputed to inspect the spot for the purpose of valuing the property and to submit her report. So, the entire evidence of PW. 4 and her reports at Ex.P. 27 has to be out rightly discarded. When we go through the evidence of PW. 4 Saira Naseem, her examination-in-chief is only to reaffirm before the Court that she was deputed by her superior i.e. the Asst. Engineer to visit the said building.
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70. In her examination-in-chief, and this lady makes it very clear that when the Executive Engineer and Asst. Engineer received the letter from the Lokayuktha to hold spot inspection for the purpose of valuing the building, there were no any other inputs. So, again a separate letter was written seeking for some of the clarifications in respect of date of commencement of building and its completion. This lady in her examination-in-chief makes it very clear that on 08-01-2015 she visits the property of the AGO, they found ground, 1 st and 2nd floors with a car parking area. The entire building was with a granite flooring, teak wood was extensively used and in respect of car parking roof Mangalore tiles were used. According to this lady, she has considered the schedule of rates in the guidelines issued by 86 Spl.C.C. No.191/2017 the department of Registration and Stamps for the year 2011 and assessed the entire building in a total sum of Rs. 37,13,097/-. She has submitted her report which is at Ex.P. 27 and P.28 is the covering letter. Now, when Ex.P. 27 is carefully gone through, the report is very brief and this PW. 4 intelligently makes it very clear that she has taken into consideration the SR rates of the year 2010-11. So from this Ex.P. 27, it cannot be inferred that a detail inspection by collecting of the relevant material has been undertaken.
71. Coming to the cross-examination, the very first admission given by this witness is that she has considered the guidelines for the year 2011. According to this lady, she did not ascertained the date of construction of this 87 Spl.C.C. No.191/2017 building, some of the admissions given by this witness is extracted as under:
"I did not ascertain the date of construction of building bearing No.74 of BTM 2 nd Stage, Bengaluru mentioned in Ex.P. 27. ... I do not know the fact that, as per the sanction plan, the construction of that building was undertaken on 21-02-1994. It is true that, as per the construction plan now shown to me is pertains to the building No.74 of BTM 2 nd stage and issuance of that sanction plan is dated 21-02-1994".
72. According to me, there are many such admissions given by this witness which definitely goes to the root of the case. What this Court has to look into is how the valuation of the building is proved by the prosecution. Because, when the said valuation takes place, there are some influencing factors like date of commencement, date of completion, cost of 88 Spl.C.C. No.191/2017 construction material, nature and quantity of wood used, labour charges, whether was under
self supervision or through contract basis and finally the purchase of construction materials whether retail or wholesale basis. Only when these minimum inputs are available, one can think of relying upon the Commissioner's report or the evidence of the Court Commissioner/expert.
73. In the instant case, when the admission given by PW. 4 in her cross-examination is kept in mind, she makes it very clear that when she was directed to undertake commissioner work, she had no documents like commencement and completion certificate, sanction plan and there is no material to form an opinion that whether she was assisted by any of the 89 Spl.C.C. No.191/2017 accused family members or not. Under such circumstances, Ex.P. 27 cannot be considered, as has been properly supported by the evidence of PW. 4. I should say in spite of placing Ex.P. 27 and examining PW. 4, that document has not been proved. In this regard, I rely upon a decision reported in LAWS(KAR) 2016(2) 292 in the case of State Vs.Gurumallappa, wherein the Hon'ble High Court of Karnataka has held that "mere production and marking of the said document as an exhibit is not enough. Execution has to be proved by admissible evidence , that is, by the evidence of those persons who can vouch safe for truth of the contents appearing therein. The principles enunciated in this case squarely applies to the case on hand. So, according to the AGO, the 90 Spl.C.C. No.191/2017 total value of construction was Rs. 17,08,300/-, but the IO has considered the excess amount. So an amount of Rs. 22,13,094/- has to be deducted from the total assets of the AGO which comes to Rs. 2,21,44,950/- (Rs.2,43,58,044/- - Rs. 22,13,094/- = 2,21,44,950/-).
74. Likewise, in respect of other property which is Site NO.29 and the building standing thereon is concerned, this AGO has not disputed in respect of the site value which came to be purchased on 30-01-2002 by the accused from his vendor by name Smt.Kempamma in a sum of Rs. 2,40,000/-. Again this DW. 1 attacks the valuation of the building standing thereon in a total sum of Rs. 23,60,116/-. According to DW. 1, again PW. 4 91 Spl.C.C. No.191/2017 Smt.Saira Naseem has considered SR rate of the guidelines issued for the year 2004-05 even though the actual construction incurred by the DW. 1 in a sum of Rs. 17,08,300/-. But, PW. 9 and 12 have inflated this rate in a total sum of Rs. 21,20,116/-. So, the difference amount of Rs. 4,11,816/- has to be deducted from the total assets, which comes to Rs.2,17,33,134/-.
75. It is needless to point out that again when we go through Ex.P. 29, which is the separate valuation report in respect of this property, it is no better than Ex.P. 27. In fact, PW. 4 in her cross-examination admits Ex.D. 1 to D.3 by way of confrontation which are the sanctioned plan in respect of building No.74 and property No.29/22 of N.S.Palya. She categorically gives 92 Spl.C.C. No.191/2017 admission that she was able to prepare Ex.P. 27 and P.29 only on the basis of limited information provided by the Karnataka Lokayuktha and nothing else. So, if this evidence of PW. 4 were to be considered with Ex.P. 29, definitely Court cannot get any comprehensive view of how this valuation can be correct. Another important aspect is that there is no whisper either in Ex.P. 27, 29 or evidence of PW. 4 as to whether this construction work was entrusted to the contractor, if so, what is his profit margin, if not whether this construction was under taken by the accused under by self supervision or not.
76. During the course of arguments, the learned Senior Counsel who appeared for the 93 Spl.C.C. No.191/2017 accused counsel also submitted that Ex.P. 27 and P.29 are on approximate basis and this aspect has been made clear by PW. 4 in her evidence. Under such circumstances, according to me, attaching importance either to the oral evidence of PW. 4 or Ex.P. 27 and 29 falls to the ground. In this regard, the learned counsel for the accused also relied upon the decision reported in 1992(4) SCC 45 (M.Krishna Reddy Vs. State Deputy Superintendent of Police, Hyderabad), wherein the Hon'ble Apex Court has held as under:
"Prevention of Corruption Act, 1947 - Ss.5(1)(e) r/w 5(2)- Charge of possession of assets and pecuniary resources disproportionate to the known sources of income of appellant public servant -Benami transactions alleged -Burden of proof lies on the prosecution-94
Spl.C.C. No.191/2017 Appellant claiming that value of certain items should be deducted from the value of the alleged disproportionate assets -Claim substantiated by evidence of income tax and wealth tax returns submitted about a year before the search conducted in the house of appellant by Anti Corruption Department -Burden of proof in disproving the claim of the appellant not satisfactorily discharged by the prosecution -
Appellant completed an unblemished service of over 25 years - Having regard to the totality of circumstances and cumulative effect thereof, held, conviction and sentence recorded by High Court under SS.5(1)(e) r/w 5(2), affirming the judgment of trial Court, cannot be sustained and liable to be set aside.
Prevention of Corruption Act, 1947
- S.5(1)(e) - Ingredients to be proved to establish charge under
-Initial burden of proof is on the prosecution - After that burden is discharged by the prosecution, onus shifts on accused -
Prevention of corruption Act, 1988, S.13(1)(e)-Evidence Act, 1872, Ss.101-102 and 106.95
Spl.C.C. No.191/2017 And submitted that the initial burden of proving the guilt or discharging its responsibility by placing cogent and cohesive evidence has not been discharged by the prosecution. So far as the principles enunciated in this decision aptly applicable to the case on hand comes to the rescue of the accused. So far as items No.3 to 7 shown in the final list of assets has not been disputed by this accused.
77. Coming to the movable properties i.e. an amount of Rs. 27,85,551/- shown as the bank balance in the SB account of the AGO with the Vijaya Bank, J.P.Nagar, Bengaluru is also found fault with DW. 1. According to DW. 1, as the check period is only 01-01-1986 to 28-03- 2004, but PWs. 9 and 12 has taken 6 months 96 Spl.C.C. No.191/2017 additional period i.e. until 28-09-2004, the excess amount has been considered as assets which is incorrect. Even though in the evidence of DW. 1, this aspect was spoken by this witness in detail, but in the cross-examination, there is nothing which is infringing that has been elicited from his mouth or on the other hand, the prosecution could not explain as to why this mistake has taken place. So, the bank balance for the check period is not taken so far as the amount laying to the credit of accused in his SB amount maintained with Vijaya Bank, J.P.Nagar, Bengaluru. Again so far as bank deposits are concerned, Sl.No.3 to 16 of item No.1 in movables are not disputed by this accused. Hence, I am not holding much discussion in this regard. Because, the IO has also considered this amount as the assets of 97 Spl.C.C. No.191/2017 the AGO and his family members.
78. Coming to another aspect of the AGO purchasing Ford Icon car bearing Reg.No.KA05 MJ 0036 in a total price of Rs. 8 lakhs is also disputed by this DW. 1. According to this DW. 1, he has placed schedule and documents at annexures 14C page No.57 at Sl.No.1, wherein the purchase invoice shows that the on road price of the said car is only Rs. 6,06,680/-. But, unnecessarily PWs.9 and 12 have inflated this amount and so the different amount of Rs. 1,93,320/- is added to the assets which shall have to be deducted from the total assets, which comes to Rs. 2,15,39,814/-.
79. According to me, the calculation undertaken by the IO is against the schedule 98 Spl.C.C. No.191/2017 and the documents produced by the accused and it goes against the evidence of the prosecution, because, it is the case of the IO that while preparing the final report, he has also considered the schedule documents. So, this amount shall have to be deducted from the total assets.
80. So far as purchase of other vehicles at item Nos.3 and 4 at Sl.No.3 is squarely admitted by DW. 1. Coming to Rs. 8,40,000/- found in the bed room of the accused at the time of the raid is concerned, it is the evidence of DW. 1 that this amount has to be deducted from the assets as it was the sale consideration received by this accused from one Nagaraj for purchasing of Site. So, according to the IO, he has considered this as the assets of the 99 Spl.C.C. No.191/2017 accused, but this explanation and evidence given by DW. 1 has not been controverted, even this amount has to be deducted from the total assets as shown by the IO.
81. Coming to the important aspect of disputing the assets of the AGO and his family members are concerned, it is the claim of the PW. 9 and 12 that they found 312.9gms of gold, 7 gms. of Diamond and Platinum and they have valued these total ornaments in a sum of Rs. 4,79,800/-. Likewise, the IO PW. 9 has quoted the total value of gold, silver, diamond and platinum which was found in the house of the AGO and Karnataka Bank, BTM Layout branch locker of both AGO and his daughter Smt.Chandana in a total sum of Rs. 18,75,400/-. Quite naturally, the concern of 100 Spl.C.C. No.191/2017 DW. 1 which was expressed by him by way of both his evidence and submission before this Court is that the IO has calculated the said gold by taking into account a sum of Rs. 2,900/- per gram and whereas gold ornaments found at the locker to which different yardstick has been applied by him. It is also the say of the DW.1 that in spite of he furnishing schedule and given the declaration that some of the ornaments which are gold, silver, platinum and diamond are concerned, they are the gifts and presents received by him, his wife and also daughter at the time of their respective marriages and birthday functions. Further, according to DW. 1, so far as 629.40 gms. of gold was gifted to him by his relatives during his marriage function and birthday celebrations of his daughter. So according to 101 Spl.C.C. No.191/2017 this DW. 1, the total value of the ornaments, gold, platinum and diamond accounts only for Rs. 12,58,800/- and not Rs. 23,55,200/-. So the difference amount of Rs. 10,96,400/- shall have to be taken out side the purview of of calculations.
82. When the evidence of PW. 8 H.S.Prashanth who is the goldsmith, PW. 9 and 12 are taken into account, there is one consistent evidence which is spilling out from their respective evidences are that the value of these ornaments were taken into consideration on their approximate basis. When search and raid took place at the house of the accused and when the panchanama at Ex.P. 18 was drawn, even though the IO had not taken with him PW. 8 Prashanth later on he was summoned to 102 Spl.C.C. No.191/2017 his house. Similar approach was also adopted by the IO when the raid at the bank locker of the AGO and his daughter Smt.Chandana at Karnataka Bank, BTM branch. But, coming to the core issue on hand, can the say of both PWs.3 and 8 that value of gold and other articles were assessed on approximate basis, can it be accepted? According to me,no, because this cannot give a correct calculation of the ornaments held by the AGO's family. Likewise, this Court is of the firm opinion that so long as these ornaments are disclosed or declared in their respective APRs, it is the bounden duty of the IO to consider them during the course of investigation. Likewise, the appraiser's assistance is taken only to the extent of his lawful claim that how he has considered the value of those ornaments. But, 103 Spl.C.C. No.191/2017 in the very first instance, in the initial stage of the cross-examination of PW. 3, who is the main pancha, who was very much present when raid and search took place at the house and bank locker of the AGO, he has admitted that the value of the gold and silver articles were considered on approximate. His admission in this regard is extracted as under:
"It is true that the value of the articles mentioned in Ex.P.18 are its approximate value. It is true that the value of gold and silver articles stated by the IO are approximate. It is true that the signature of the appraiser are not bearing on Ex.P. 18 and 26."
83. Likewise, coming to the cross-examination of PW. 8, as I have said, he is also an appraiser instead of his evidence assisting this Court, he has left some of the aspects in lurch. Some of the admissions given by PW. 8 are extracted 104 Spl.C.C. No.191/2017 are as under:
"It is true that I did not ascertain about the date of purchase of gold and silver articles found in the house of the accused and in a bank locker. It is true that the estimate value of gold and silver articles stated by me are my approximate value wiout any basis for the same. It is true that the rates of gold and silver varies from day to day and time to time. It is tire that there is a long variation with regard to the price of gold and silver articles prevailing in the year 1985 and on the date of my examination of above said gold and silver articles.
84. According to me, nothing more is required to form any opinion that the estimated value of gold and silver as shown by the IO in his final report or charge sheet can be a basis for holding any calculations to know what was the total assets of the AGO and his family members.
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85. Of course, DW. 1 in his evidence has spoken about the various gifts received by their family members at their marriage and birthday celebrations of his daughter, but they have not given any specifications. But, this should itself cannot be a ground to disbelieve the accused in this regard. Moreover, the expert witness,the PW. 8 who was the goldsmith examined by this IO was to corroborate their say that this Court shall have to accept the value as shown in Ex.P. 18 and 26. But, according to me, without any hesitation, I can say that those documents are not proved in accordance with law. In this regard, I rely upon a decision reported in LAWS(SC) 2011(1) page 102 in the case of Alamelu Vs. State represented by Inspector of Police, wherein the Hon'ble Apex Court has held that ; "The legal position is not in 106 Spl.C.C. No.191/2017 dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence , that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue"."
86. The principles enunciated by the Hon'ble Apex Court is squarely applies to the case on hand and helps the accused in this case. Now, so far as appreciating the evidence of PW. 8, who is an expert is concerned, the Hon'ble Apex Court has laid down some guidelines. In the instant case, that guidelines have not been followed by the prosecution when the evidence of PWs.8, 9 and 12 are taken into 107 Spl.C.C. No.191/2017 consideration. In this regard, I rely upon a decision reported in (2009)9 SCC 709 in the case of Reamesh Chandra Agrawal Vs. Regency Hospital Limited & Others, wherein the Hon'ble Apex Court has held as under:
"D. Evidence Act, 1872 - S.45 - Expert evidence , when called for- Test for - Issues involving medical science - Held, test is whether mater is outside knowledge and experience of a layperson - Where a medical issue is to be settled, scientific question involved therein is assumed to be not within Court's knowledge and hence, there is a need to hear expert opinion - Since medical science is complicated, expert opinion provides deep insight
-where diagnosis and the method of treatment suggested to a patient vary, held, expert opinion forms an important role in arriving at a conclusion - medical practice and practitioners - Medical negligence- Expert opinion - Need for - tort Law
- Negligence - Medical negligence.
E. Evidence Act, 1872 - S.45
-Expert evidence-Admissibility-108
Spl.C.C. No.191/2017 Requirements- Evidence of expert is admissible when (I) expert is heard,
(ii) he must be within a recognized field of expertise, (iii) his evidence must be based on reliable principles, and (iv) he must be qualified in that discipline -
reiterated, without examining expert as a witness, no reliance can be placed on his opinion alone.
E. Evidence Act, 1872 -S.45 -Expert opinion -Evidence of witness, when can be accepted as that of expert
-Held, in order to bring evidence of a witness as that of an expert, it is to be shown that he has made a special study of the subject or acquired special experience therein or is skilled and has adequate knowledge of the subject.
87. The dictum laid down by the Hon'ble Apex Court in this decision applies to the case on hand and helps this court in effectively rendering judgment coming to conclusion on sound principles of law.
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88. Initially when the cross-examination undertaken by the PW. 12 Subramanya subsequently by another IO PW. 9 by name Pradeep Kumar are looked into through their evidence, virtually there is no impress of truth that those people have taken investigation as required under law. I am pressing hard on Ex.P. 26, which is in respect of a bank raid at the locker of Karnataka Bank, BTM Layout Branch belonging to Smt.Chandana and the AGO are concerned, the entire exercise of conducting the search and raid is without any search warrant. In fact PW. 12 goes to the extent of securing appraiser PW. 8 to the spot, then getting valued the ornaments, which are gold, silver and also seizing cash knowing fully well that he has no authority to do so. Even the same value has been incorporated in the 110 Spl.C.C. No.191/2017 calculation shown as assets of the accused and his family members.
89. When the entire evidence of PW. 12 is gone through, even Ex.P. 18 discloses that this IO left the spot in between, then goes to the Karnataka bank, BTM branch locker to open the locker and again continues the search of the house of the accused after returning from that bank. It is the evidence of PW. 12 and contents could be found in Ex.P. 18 that he has only retained a hard cash of sum of Rs. 8,40,000/-, and documents, but has returned gold and silver articles back to Smt.Chandana, her brother Abhishek who were presented at the spot. So, these aspects do not go hand in hand. Likewise, the PW. 9 who has completed the investigation and filed final report has not 111 Spl.C.C. No.191/2017 fared better. In this background, I would like to cull out some of the cross-examination answers of PW. 9, which in the given circumstances of the case, sums rather strange. They are extracted as below:
It is true that earlier to my entry into Lokayuktha in December 2015, I had not dealt with Prevention of Corruption cases. It is true that it is my first disproportionate of assets case investigation. ... It is true that during my investigation I found that this accused and his family members were possessing gold articles weighing 1230.1 gram and the income tax returns from 1985- 86 to 2008-09, he has declared about purchase of 697 grams of gold, I did not consider the same.
I do not know the fact that, in the marriage of the daughter of the accused, her relatives and friends have gifted the gold articles weighing 407 grams. It is true that I did not consider the said facts minutely. It is true that the gold rateof the jeweleries found in possession of the accused are considered on the information 112 Spl.C.C. No.191/2017 given by the appraiser PW. 8".
90. This is one such instance where it has been demonstrated before this Court that neither any scientific approach has been adopted nor there is any rationale in adopting the method to arrive at a calculation followed by the IO.
91. In respect of Sl.No.5 to 46 of the assets, this AGO has not disputed the same. Again coming to Sl.No.6 which is the household articles found in the house No.74 of BTM Layout, the IO has considered it as Rs. 9 lakhs, but according to DW. 1, actual value is Rs. 4,89,940/-. Again I should say, when the evidence of PWs.3, 8, 9 and 12 are gone through, it strikes to the mind that while considering the approximate value of the 113 Spl.C.C. No.191/2017 household articles, few important aspects have to be kept in mind. Their date of purchase, their depreciation value, appreciation value if any, usage and their utility. In this category, they have to separate gift items from one which they have purchased. During the course of arguments, the Learned Public Prosecutor submitted that in the cross-examination, as DW. 1 has given admission that he has not placed any documents to prove this aspect that the rates of gold, silver and other consumer durables were determined with the assistance of panchas, family members of the accused, I- O and the appraiser, so the benefit must be given to the prosecution in this regard and should hold that whatever calculation they have given is deemed to be correct. I failed to accept this because, the burden which is 114 Spl.C.C. No.191/2017 called upon by the prosecution is to discharge the same beyond all reasonable doubt. Further more, the Hon'ble Apex Court has laid down certain guidelines that has to be followed by the IO while holding investigation in a disproportionate of assets case, which is reported in LAWS (Madras) 2007(12) page 547 in the case of R.Kannappan & K.Chandrasekaran Vs. State by Deputy Superintendent of Police, wherein the Hon'ble High Court has held as under:
(i) The Investigating Officer should assess the value of the assets of the public servant immediately prior to the check period with relevance to the tax Returns of the concerned person and also loans and other incomes available to the person and also about the liability of the person prior to the check period.
(ii) the actual income during the check period and the expenditure 115 Spl.C.C. No.191/2017 actually incurred by the public servant should be calculated without any inflation and on a reasonable basis.
(iii) the total income during the check period and assets prior to the check period must be taken together as the total assets of the public servant from which the actual expenditure and amounts saved either by cash or by properties must be deducted from the total amount and see whether there is much disproportion to the known sources of income of the public servant and the assets on his hand. While making the calculation regarding the value of the properties and expenditure a reasonable margin has to be given this way or that way to find out the truth. Such kind of procedure to be adopted only by an unbiased Investigating Officer. There should be no suppression of income or under estimation of the income of the accused or inflation of the expenditure or inflation of the assets of the accused.
(iv) the Investigating Officer should not suppress any of the income, by way of loan or gift while considering the income of 116 Spl.C.C. No.191/2017 the public servant.
(v) Similarly after finding out that there is any disproportionate wealth in the hands of the public servant beyond his known sources of income, the accused must be given an opportunity to explain the same. Failure to give an opportunity to the accused to explain the same is fatal to the prosecution.
92. The principles along with the guidelines laid down in this case by the Honble Apex court aptly applies to the case on hand and the present case has only shown that both the IOs have not only properly discharged their burden of proving their investigation, but even the proper investigation has not been undertaken. So far as the rest of items of the assets found at Sl.No.7 to 13 are not disputed by this AGO. So, according to the IO for the check period total assets of the AGO and his family 117 Spl.C.C. No.191/2017 members was Rs. 2,43,58,044/-, but whereas according to this court's calculation it is Rs. 2,15,39,814/-. Under such circumstances, according to me, even the IO has thoroughly failed to show before the Court that where exactly the assets acquired by the AGO and his family went wrong and were illegal. EXPENDITURE
93. In this caption, items No.1 to 46 have not been disputed by this AGO. But, so far as spending in a sum of Rs. 2,74,000/- towards the membership for country Club is concerned, it is the evidence of DW. 1 that his uncle by name M.K.Bhagwan has paid the same through cheque. It is not in dispute that there is a document to this effect and this amount is paid through the bank account of 118 Spl.C.C. No.191/2017 M.K.Bhagwan. Even this aspect is very well within the knowledge of PW. 9. No doubt, this IO has examined one more witness who was the office bearer of the said Association, the PW. 10 by name R.Bhaskar Naidu.
94. According to this person, Ex.P. 41 is marked through this witness. But, in the cross-examination, there is an admission to the effect that membership fee of Rs. 2,75,000/- was paid through cheque so this settles score on hand. In fact, in his cross- examination, he was slightly evasive in answering that the cheque tendered by the AGO towards the payment of membership fee was from the account of M.K.Bhagwan or not. But, in the later part of the cross-examination, it was indirectly admitted by this witness that 119 Spl.C.C. No.191/2017 bank account belongs to M.K.Bhagwan. Now, if this Court has to accept a sum of Rs. 2,75,000/- membership fee is paid by the AGO, then there must be that document which connects AGO's monetary transaction with bank account of M.K.Bhagwan. It is not the allegation of PWs.9 or 12 that the AGO had undertaken benami transactions with M.K.Bhagwan. Under such circumstances, this item considered as expenditure on the part of the AGO's family has to be deducted from the total expenditure of the IO shown in a sum of Rs. 83,04,763/-, which comes to i.e. Rs. 83,04,763/- - Rs. 2,75,000/- = Rs. 80, 29, 763/-.
95. In respect of items No.48 to 52 of the expenditure, the AGO has not disputed the 120 Spl.C.C. No.191/2017 same. Lastly, coming to the repayment of the hand loan of Rs. 4 lakhs to H.R.Huregowda. According to this DW. 1, this amount was paid by the AGO after the check period. So this cannot be considered as expenditure. I find there is some substance in this arguments. If at all PW. 9 has furnished the calculation, it is on account of the check period and nothing else. Of course, it is the main grievance of the DW.1 is that earlier salary income of the AGO prior to the check period have not been considered. So also some of the incomes after the check period has taken into consideration. Considering this aspect, as the evidence given by DW. 1 in this regard stands uncontroverted. So, this Rs. 4 lakhs has to be deducted from the total expenditure. According to the IO, the total expenditure is 121 Spl.C.C. No.191/2017 Rs. 80, 29, 763/- - Rs. 4,00,000/- is Rs. 76,29,763/-. So the net expenditure of the AGO and his family members will be Rs. 76,29,763/-.
INCOME
96. This aspect is concerned, in a case of disproportionate of assets, the usual defence of the accused will be that the IO has not considered all the items of income of his family which has resulted in causing imbalance and furnishing wrong calculation to the Court showing that there is a disproportionate assets on the part of the accused. In the instant case, according to the IO, the total lawful income of the AGO and his family members is shown at Rs. 2,34,88,414/-. This has been strongly refuted by the DW.1 on the ground that inspite 122 Spl.C.C. No.191/2017 of both he and his wife furnishing documents in respect of their independent source of income especially in case of rental incomes and also his salary and that of his daughter Kum.Chandana, they have not been well considered.
97. The DW. 1 in his further examination-in- chief gave evidence that PW. 9 has considered his total rental income in a sum of Rs.23,00,222/-, whereas he has received a sum of Rs. 61,07,387/-. Same mistake is committed by PW. 9 in his calculation in respect in not considering the rental income of his wife Smt.Shobha. Both Smt.Shobha and the AGO jointly received rental income for the check period an amount of Rs. 54,32,387/- and an earnest money of 6,75,000/-. This DW. 123
Spl.C.C. No.191/2017 1 claims to have furnished the documents by his volume No.1, pages 30-32, so the IO has not considered a sum of Rs. 24,26,472/-.
98. In the cross-examination of DW. 1, the Learned Public Prosecutor should have made some efforts to elicit admission that the total rental income considered by the PW. 9 was correct, but to which there is no any such admission in his cross-examination. Whereas, coming to the cross-examination of PW. 9, who has taken the later part of his investigation and then filed his final report and charge sheet, gave evidence that he was unable to consider the entire total rental income of the AGO and his wife Smt.Shobha, because either in the APRs or in the ITRs, they are not fully updated. Some of the admissions given by PW. 124
Spl.C.C. No.191/2017 9 is extracted as below:
"It is false to say that, though this accused received total rent amount of Rs. 52,46,567/- from his tenants, I consider the same only to the extent of Rs.
36,80,915/-. Witness volunteers that, he considered that amount based on his IT returns. .... It is false to say that though there is reflect in the IT returns of the accused about his rental income, I deliberately left out a sum of Rs. 15,65,652/-."
99. Now, the question that would be convinced by this PW. 9 is that when he gave a notice to DW. 1 asking him to secure him all the 6 tenants, so as to record their respective statements under Sec.161 of the Cr.P.C., it is the version of DW. 1 that the tenants had already left the tenanted premises, their recent whereabouts were not found. Hence, this DW. 1 could not secure all the tenants and produce them before this PW. 9. So, that itself cannot 125 Spl.C.C. No.191/2017 be a lapse on the part of DW. 1 to ignore the total rental income received either of AGO or his wife Smt.Shobha. Of course, when the evidence of PW. 12 is gone through, who has conducted initial part of the investigation, he squarely admits that but for raid at Ex.P. 18 and 26 he is not aware of the rentals or he did not undertake any investigation in this regard. Now, there must be some better documents placed from the side of the prosecution to believe the PW. 9 that his calculation in respect of the accused and his wife receiving total rental income was only in a sum of Rs. 36,80,915/-. But, in this regard, he has completely failed. So, the version of DW. 1 that he and his wife received total rental incomes of Rs. 54,32,387/- and earnest money of Rs. 6,75,000/- from different tenants has to be 126 Spl.C.C. No.191/2017 accepted. So, additional amount of Rs. 24,26,472/- shall have to be added to the total income, which comes to Rs. 3,14,04,100/-.
100. Coming to the another major aspect of the agricultural income of the AGO, the PW. 9 considered it as only Rs. 41,60,359/-. According to DW. 1, he had produced documents to show that even prior to joining the BDA as the contract labourer, he was getting agricultural income. So, according to him, it was a legitimate income. According to this DW. 1, his agricultural income from ancestral properties for the check period will be Rs. 63,64,557/- and from his self acquired agricultural lands is Rs. 18,30,127/-. But, PW. 9 has considered it as Rs. 41,64,557/- and has not considered an additional amount of Rs. 127
Spl.C.C. No.191/2017 22,04,200/-. When the evidence of PWs.9 and 12 are gone through, in fact PW. 12 has visited some of the lands of the AGO situated at Daradahalli and Mekanagadde Villages. He also admits in his cross-examination that the family of the accused and their forefathers are agriculturists and it was an agrarian family growing different crops like paddy, ragi, commercial crops like cardamom, clove, etc. In some of the APRs of the AGO which was filed for the assessment years 2004-05, there is some declaration in this regard.
101. In order to give strength to this contention and the IO himself has taken pains to examine one of the agricultural Officer to state before the Court that this DW. 1 also had agricultural income. So, the only question before the Court 128 Spl.C.C. No.191/2017 is who is right whether DW. 1 or PW. 9. When the evidence of agricultural Officer at PW. 6 by name A.C.Chandra Shekar is looked into, it is quite evident that the accused and his family possesses agricultural lands. This witness makes it very clear that when he was working as the Asst. Director of Agriculture, Mudigere, on 14-07-2016, he receives a letter from the Police Inspector, KLA requesting him to furnish agricultural income of the AGO at Daradahalli Village in respect of Sy.No. 212/P and similar letter of other date requesting him to furnish income in respect of land situated at Mekanagadde village. He deputes two of his officials to carry out the purpose. They have submitted Ex.P. 37 and 38. In the cross- examination, even though it is the admission of PW. 6 that he did not participated in the said 129 Spl.C.C. No.191/2017 spot inspection personally, but suffice it to say that the report at Ex.P. 37 and 38 also vouch safe the fact that indeed family of the accused had an agricultural income.
102. During the course of arguments, the learned counsel for the accused submitted that in view of Sec.10(1) of the Income Tax Act of 1961, the agriculturist is exempted from paying income tax. So, as PW. 9 and 12 have failed to show any material that the schedule and the documents submitted by DW.1 are not trustworthy and that the total agricultural income of the AGO is only Rs. 41,60,359/-, I have to reject this claim and accept the claim of DW. 1 that their agricultural total income of Rs. 63,64,557/-. So, difference amount of Rs. 22,04,200/- shall have to be added to the total 130 Spl.C.C. No.191/2017 income, which comes to Rs. 3,36,08,800/-.
103. The DW.1 has also highlighted some discrepancy and deficiency both PW. 9 and 12 committed a mistake in not considering the entire salary of Smt.Chandana which comes to Rs. 19,32,961/- instead he has considered as Rs. 14,65,779/-. Again the rental income of Smt.Shobha has been considered only as Rs. 13,80,693/-, whereas the documents placed by DW. 1 show that it was Rs. 36,80,915/-. So, the difference amount of Rs. 24,26,470/- will have to be added to the total in respect of the income.
104. Even though in examination-in-chief DW. 1 spoke about his wife Smt.Shobha running electrical contract work in the name of M/s. 131
Spl.C.C. No.191/2017 Yashaswini Electrical business, but inspite of the Learned Public Prosecutor cross-examining witness at length failed to convince before this Court that there was no such electrical business. Smt.Shobha also claims to have filed her ITRs for the years 1996 to 2014 which is found in the ITRs submitted by her. But, the IO has considered the income only in a sum of Rs. 34,22,832/-, whereas she has declared it as only Rs. 3,96,212/-. Except this amount, the rest has to be deducted from total income earned from this business. So far as other aspects shown in the income by the IO PW. 9 is admitted this witness.
105. Lastly, coming to the income received from the LIC matured policies and also amount of Rs. 8,40,000/- seized at the time of Ex.P. 16 in 132 Spl.C.C. No.191/2017 the house of the AGO, this DW. 1 makes it clear that hard cash in his house was on account of sale of his Verna Car. Undoubtedly, the total income as shown by the IO of AGO's family cannot be Rs. 2,34,88,414/- and the total income shown by the AGO in a sum of Rs. 3,38,08,800/- which is calculate by this court has to be accepted. So, the final calculation is total assets is Rs. 2,15,39,814/-, total expenditure is Rs. 80,29,763/-. If they are totalled, it comes to Rs. 2,95,69,577/- and the total income of the AGO works out to be Rs. 3,38,08,800/-. So, when this calculation was kept in mind, there cannot be any disproportionate assets muchless to the tune of Rs. 91,48,073/- and there is no any disproportionate asset as the lawful income is far more than total asset and expenditure of 133 Spl.C.C. No.191/2017 the accused and his family members. Under these circumstances, according to me, the entire calculation undertaken by PW. 9 is far from the reality. A word or two has to be spoken about the way in which the raid has taken place.
106. I have already discussed as to what was the approach of the PW. 12 when he continued his raid at the bank locker of the Karnataka Bank, BTM Layout Branch, belonging to the AGO and his family members and it is admitted by PW. 12 that he stopped his search in the house of the AGO in the middle, then he rushed to the Karnataka Bank. He also admits that he had no any search warrant to barge in to the BTM Layout Karnataka Bank branch only to seize the articles. Some of his 134 Spl.C.C. No.191/2017 admissions given are extracted as under:
"It is true that before registering the case, I did not personally enquire with regard to the genuineness and veracity of the source report. ... It is true that, I did not obtain search warrant from the Court for search of bank lockers of the accused. It is true that, on 29-03-2014, I visited Karnataka Bank, BTM Layout branch, Bengaluru for conducting search after search in the house of the accused."
107. So at no stretch of imagination, this can be considered as lawful raid or search. As I have said earlier, the learned Senior Counsel who appeared for the accused Counsel also submitted that Sec.17 of the Prevention of Corruption Act, 1988 has been blatantly violated. Because, it is the evidence of PW. 1, Srinivas that when he was working as the Police Inspector, Karnataka Lokayuktha, on 30-04-2014, his ADGP has issued a memo to 135 Spl.C.C. No.191/2017 this witness SP instructing him to re-register the Bengaluru Rural Police Station Cr.No.9/2014 in their police station on the point of jurisdiction. So, on 12-05-2014, his SP wrote a letter to this witness with an instruction to re-register said case in their police station crime number on the point of jurisdiction and on 14-05-2014, CW.2 wrote a letter to SP informing him stating that he is transferring Rural Police Station Cr.No.9/2014 to City limits. So, on 12-05-2015 SP issues a memo to PW. 1 and on that basis on 14-05- 2014 at about 4 p.m. that case was re- registered in their Police Station Cr. No.17/2014 on 14-05-2014.
108. Another worrying aspect is that this witness admits in his cross-examination which 136 Spl.C.C. No.191/2017 is extracted as under:
"It is true that the letter written by our SP to me on 12-05-2015 is not an authorization letter as contemplated under Sec.17 of the Prevention of Corruption Act, 1988. It is true that the memo issued by the ADGP to our SP is not in the form of authorization letter contemplated under Sec.17 of the Prevention of Corruption Act, 1988."
109. There was one untouched evidence is that of PW. 5 one K.N.Kantharaju who was the Dy. Director of Statistics who was called upon to prepare family expenditure of the accused by furnishing total income of the AGO and his family members from the known source and their food habits. This gentleman has issued Ex.P. 31 and 32, but in the cross-examination he admits that this report was prepared on an approximate basis. It is also the admission of 137 Spl.C.C. No.191/2017 PW. 5 that he has completely based his Ex.P. 31 on the instructions forwarded by the Lokayuktha police officers. Under these circumstances, there is no question of attaching any accuracy so far as calculation by prosecution is concerned, but PWs.9 and 12 did not even made attempts to reach near to that accuracy. In this regard, the counsel for the accused placed his reliance on a decision of the Hon'ble Apex Court reported in 2017(14) SCC 442 in the case of Vasant Rao Guhe Vs State of Madhya Pradesh, wherein the Hon'ble Court has held as under, only to bring home the fact that the prosecution has failed to discharge his burden.
"Prevention of Corruption Act, 1988 - S.13(1)(e) r/w Sec.13(2)
- Held, a person cannot be subjected to a criminal prosecution either for a charge 138 Spl.C.C. No.191/2017 which is amorphous and transitory and on evidence that is conjectural or hypothetical -
Appellant-accused was convicted under S.13(1)(e) r/w S.13(2), which was upheld by High Court - However, he was subjected to a trial in which both charges and evidence on aspects with vital bearing thereon lacked certitude, precision and unambiguity
-Prosecution failed to prove the charge beyond reasonable doubt
- hence, conviction stands reversed.
110. The principles laid down in the above decision squarely applies to the case on hand.
On the similar analogy, I also would like to place my reliance on the following decisions:
(2009) 9 SCC 221 in the case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee & Others , wherein the Hon'ble Apex Court has held as under:
"Evidence Act, 1872 - Ss.64,62, 67 and 115 - Proof of a 139 Spl.C.C. No.191/2017 document -Held, a document is proved by examining its author- A document is therefore not admissible unless it is proved - Further held, if a document has been marked as an exhibit and it is not objected to by the opposite party, such party is estopped from questioning its admissibility later on - Criminal Procedure Code, 1973 - Ss.294, 242, 243 & 244.
111. In the above citation, the Hon'ble Apex Court has dealt in detail as to how a document has to be proved when it is being relied upon by the prosecution and so also in respect of the expert opinion. In the instant case, when the reports submitted by the Court Commissioners such as PW. 4, 5, 6 are gone through, their reports have not been completely proved to the satisfaction of this Court. So, the principles enunciated in this case has helped this Court in coming to the conclusion that those 140 Spl.C.C. No.191/2017 Commissioners' reports in respect of house valuation, food expenditure and agricultural income of the AGO and his family members have not been proved.
112. I also rely upon a decision reported in 2011 Crl.L.J.2860 in the case of O.T.Bhutia Vs. State of Sikkim, wherein the Hon'ble High Court has held as under:
"Prevention of Corruption Act (49 of 1988), S.13(1)(e), S.13(2) - Possession of disproportionate assets - Proof - Appellant, a public servant and State Minister, alleged to have amassed huge amounts of assets disproportionate to his known sources of income in form of land and six storeyed building - in Course of search and seizure, documents suggesting receipt by appellant and his wife came to light - Those were sent for examination, but outcome of examination, though known to prosecution, was not disclosed -141
Spl.C.C. No.191/2017 There is no independent evidence to suggest visit by valuers of building in question - Conviction of appellant is liable to be set aside).
113. In the decision reported in LAWS (DLH)1996(1) 103 in the case of Gunjit Singh Vs. State of Delhi, wherein the Hon'ble High Court has held as under:
"(3) The cardinal principle of criminal jurisprudence are (i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from correctness or falsity of the defense version by proving its case, (ii) that in a criminal case accused must be presumed to be innocent unless proved guilty and (iii) that the onus of the prosecution never shifts."
114. In the decision reported in LAWS (SC)2013 5 67 in the case of Sujit Biswas Vs. State of Assam, wherein the Hon'ble High 142 Spl.C.C. No.191/2017 Court has held as under:
"27. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right.
However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like the Negotiable Instruments Act , 1881; the Prevention of Corruption Act , 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative 143 Spl.C.C. No.191/2017 fact.
115. In the decision reported in AIR 1973 SC 2773 in the case of Kali Ram Vs. State of Himachal Pradesh, wherein the Hon'ble High Court has held as under:
"(C) In a criminal trial, t he onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, it cannot succeed.
The court may, of course, presume, as mentioned in section 114 of the Indian Evidence Act. The existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business. in their relation to the facts of the particular case.
116. In the decision reported in LAWS (MPH) 1996 12 51 in the case of K.N.Thapak Vs. Special Police Establishment Lok Ayukt, Moti Mahal, Gwalior, wherein the Hon'ble 144 Spl.C.C. No.191/2017 High Court has held as under:
"Thus, from the discussion of the fact and circumstances of the case and the law on the relevant points, it is abundantly clear that the petitioner has been able to explain the acquisition of properties standing in his name. No opportunity was given to the petitioner before laying down the raid for explaining the source of income from which properties and articles were required. Since the acquisition of the properties alleged have been fully explained, there could not be any prima-facie case for prosecution of the peittion.
Further the offence under Sec.13(1)(e) of the prevention of corruption Act could not be investigated unless the police officer not below the rank of Superintendent of Police, has passed a speaking order authorizing investigation. The order passed by the Superintendent of Police, authorizing some investigation must be a speaking order as held in Bhajanlal's case referred above. A copy of the order submitted by the respondents 145 Spl.C.C. No.191/2017 authorizing the investigation is not at all a speaking order and it is without application of mind only filling the gaps in the prescribed proforma.
117. And lastly, the decision reported in AIR 2007 SC (SUPPL) 1860 in the case of State, Inspector of Police, Visakhapatnam Vs. Surya Sankaram Karri, it has been held as under:
"(A) Prevention of Corruption Act (49 of 1988), S.17 -
Investigation -Authorization by Superintendent of Police in favour of an officer to carry out investigation - Has to be in writing - Issuance of an oral direction is not contemplated under Act - No explanation offered by Investigating Officer (I.O.) for not filing authorizing letter - Further, non-
consideration of relevant documentary evidence by I.O.
also not explained - Respondent
-accused had suffered miscarriage of justice as investigation made by I.O. was not fair -Investigation legal.
146
Spl.C.C. No.191/2017 (B) Evidence Act (1 of 1872), S.64, S.114 - Documentary evidence - Non-production of document in possession of a public functionary, who is under a statutory obligation to produce the same - An adverse inference may be drawn against him.
(C) Prevention of Corruption Act (49 of 1988), S.19 - Sanction for prosecution - Competent authority - Respondent accused, Asst. Staion Master tried for offence u/s.13(1)(e) - Sanction granted by Sr. Divisional Operational Manager who was not competent to remove respondent from service-
Sanction being without jurisdiction is invalid."
118. Lastly, touching in respect of Criminal misconduct alleged to have been committed by the accused is concerned, I should say there is nil material. During the course of arguments, it was tried to be blown out of proportion by the Learned Public Prosecutor by contending 147 Spl.C.C. No.191/2017 that when Ex.P. 18 search cum seizure was going on, this AGO gave a slip on the ground that he wants to attend nature's call, but did not come back and assisted the PW. 12. According to me, in spite of his absence, his son Abhishek and his daughter Kum.Chandana were very much present. After 3 days, this DW. 1 himself has appeared before PW. 12 and submitted title documents, which were seized under a separate mahazar. So, this absence for the particular period to which an adverse inference can not be drawn. Of course, it was the bounden duty of PWs.9 and 12 to consider some of the incomes like rental income, agricultural income, salary of both AGO and his daughter Kum.Chandana, gold and silver articles received through presents in spite of they being declared both in ITRs and 148 Spl.C.C. No.191/2017 APRs, for the reasons best known, they have not been considered. The present case has shown that there is no disproportionate assets as claimed by PW. 9. Hence, this aspect has not been satisfactorily proved by the IO. Accordingly, I answer this point in the negative.
POINT NO.2:-
119. Having gone through the materials, the mistake that has crept in calculation either in considering those items as assets and expenditure or ignoring some of the items of income are not well explained by the I-O. The IO is not given any leverage or any margin to use his discretion in a arbitrary way to pick and chose some of the items of assets and 149 Spl.C.C. No.191/2017 expenditure and ignore some income items.
The IO has to adopt a standard procedure and should be in a position to convince before the Court through his cogent and cohesive evidence for praying for the conviction of the accused. In the instant case this important element is missing.
120. Even though Ex.P. 18 and 26 took place, there were list in those mahazar. Even though, IO has taken permission to retain those properties, but inspite of giving an opportunity, neither the IO or the prosecution were able to get it identified during the trial and some of the ornaments seized by PW. 12 has been given back to the custody of the AGO and his family members as deposed by him in his evidence as well as in those panchanamas at Exs.P-18 and 150 Spl.C.C. No.191/2017
26. So for all practical purposes, there is no any material objects in this case. This Court has also noted some of the incorrect procedures followed by PW. 12 and 9, which should not have taken place at their end. Hence having found demerit, I proceed to pass the following:
O R DE R The accused is found not guilty of the offences alleged against him.
Acting under Sec.235 (1) of the Cr.P.C., the accused is hereby acquitted of the offences punishable under Secs.13(1)(e) r/w Sec.13(2) of the Prevention of Corruption Act,1988.151
Spl.C.C. No.191/2017 The bail bond and surety bond of the accused shall stand hereby discharged.
(Dictated to the judgment-writer, transcripted/ typed by her and then corrected and pronounced by me in the open Court on this the 28 th DAY OF JULY 2022).
(S.V.SRIKANTH), LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.
A NN E X U R E LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: M.S.Srinivas.
PW.2: Wazeer Alikhan.
PW.3: Arun Patil.
PW.4: Saira Naseem.
PW.5: K.N.Kantharaj.
PW.6: A.C.Chnadrashekar.
PW.7: Venkataraju.
PW.8: H.S.Prashanth.
PW.9: Pradeep Kumar.
152
Spl.C.C. No.191/2017
PW.10: R.Bhaskar Naidu.
PW.11: P.Raju.
PW.12: Subramanya.
PW.13: K.P.Gangadhara Acharya.
PW.14: G.M.Krishnan.
LIST OF DOCUMENTS MARKED FOR
PROSECUTION:
Ex.P.1: FIR.
Ex.P.1(a): Signature of PW.1
Ex.P.2: Letter dtd.14-5-2015.
Ex.P.2(a): Signature of PW.1
Ex.P.3: Letter dtd.15-5-2015.
Ex.P.3(a): Signatures of Pw.1.
Ex.P.4: Source Report.
Ex.P.4(a & b): Signatures of PWs.2 & 12.
Ex.P.5: Search Warrant(House).
Ex.P.5(a to d): Signatures of Pws.3, CW.7,
accused & PW. 12.
Ex.P.6: Report given by Daughter of accused.
Ex.P.6(a to c): Signatures of Pws.3, CW.7 & Chandana.
Ex.P.7: Seized document file-1.
Ex.P.7(a to c): Signatures of PW.3, CW.7 & PW.12.
Ex.P.8: Seized document file-2.
Ex.P.8(a to c): Signatures of PW.3, CW.7 & PW.12.
Ex.P.9: Seized document file-3.
Ex.P.9(a to c): Signatures of PW.3, CW.7 & PW.12.
Ex.P.10: Seized document file-4.
Ex.P.10(a to c): Signatures of PW.3, CW.7 & PW.12. Ex.P.11: Seized document file-5. Ex.P.11(a to c): Signatures of PW.3, CW.7 & PW.12. Ex.P.12: Seized document file-6. Ex.P.12(a to c): Signatures of PW.3, CW.7 & PW.12. Ex.P.13 to 15: Accused personal Diaries of 153 Spl.C.C. No.191/2017 the years 2004, 2008 & 2012. Ex.P.16: Seized Wedding card. Ex.P.16(a & b): Signatures of PW.3 & CW.7 Ex.P.17: Bank panchanama. Ex.P.17(a to d): Signatures of PW.3, CW.7, bank Manager & PW. 12.
Ex.P.18: House Search mahazar. Ex.P.18(a to e): Signatures of PW.3, CW.7, Abhishek Chandana & PW. 12.
Ex.P.19: Sale deed dtd.02-08-1993. Ex.P.19(a & b): Signature of PW. 3 & CW.7 Ex.P.20: Sale deed dtd.31-01-2012. Ex.P.20(a & b):Signature of PW. 3 & CW.7 Ex.P.21: Sale deed dtd.04-11-2013 Ex.P.21(a & b): Signature of PW. 3 & CW.7 Ex.P.22: Sale deed dtd.14-01-2004. Ex.P.22(a & b): Signature of PW. 3 & CW.7 Ex.P.23: Sale deed dtd.27-09-2003 Ex.P.23(a & b): Signature of PW. 3 & CW.7 Ex.P.24: Sale deed dtd.13-05-2008. Ex.P.24(a & b): Signature of PW. 3 & CW.7 Ex.P.25: Sale deeds seizer panchanamas. Ex.P.25(a to e): Signatures. Ex.P.26: Bank Locker search mahazar. Ex.P.26(a to f): Signatures. Ex.P.27: House No.74 valuation report. Ex.P.27(a): Signature of PW. 4. Ex.P.28: Covering letter of PWD. Ex.P.28(a & b): Signature of AEE & PW. 12. Ex.P.29: House No.29/22 valuation report. Ex.P.29(a): Signature of PW. 4. Ex.P.30: Covering letter of PWD. Ex.P.30(a): Signature of AEE. Ex.P.31: Covering letter of Dept. of statistics. Ex.P.31(a): Signature of PW. 5.154
Spl.C.C. No.191/2017 Ex.P.32: Family expenditure Report. Ex.P.32(a): Signatures of PW. 5. Ex.P.33: Copy of letter from Lokayuktha Police. Ex.P.33(a): Signature of PW. 7. Ex.P.34: Letter of PW. 7 to Lokayuktha. Ex.P.34(a): Signature of PW. 7. Ex.P.35: Letter of PW. 7 to Lokayuktha. Ex.P.35(a): Signature of PW. 7. Ex.P.36: Receipt issued by Goldsmith. Ex.P.36(a): Signature of PW. 8. Ex.P.37: Agricultural income report of Daradahalli.
Ex.P.37(a): Signature of Lolakshi. Ex.P.38: Agricultural income report of Mekanagadde.
Ex.P.38(a): Signature of Puttaswamy. Ex.P.39: Covering letter of PW. 6. Ex.P.39(a): Signature of PW. 6.
Ex.P.40: Memo of SP. Ex.P.41: Letter of JP Nagar Cultural Association.
Ex.P.41(a): Signature of PW. 10. Ex.P.42: Letter of IO to Vokkaligara Samudaya Bhavan.
Ex.P.42(a): Signature of PW. 11. Ex.P.43: Letter of Vokkaligara Samudaya Bhavan. Ex.P.43(a): Signature of PW. 11. Ex.P.44: Letter of IO to Manager, Capital Hotel. Ex.P.45: Receipt of Capital Hotel.
Ex.P.46: Letter to IT Dept. Ex.P.47: O/c letter of IO
to Dy.Secretary,Dept.Energy Ex.P.48: Details from Dy.Secretary Dept.of Energy Ex.P.48(a): Signature of PW. 9. Ex.P.49: Service Particulars from Service 155 Spl.C.C. No.191/2017 Register, BDA Ex.P.49(a): Signature of PW. 9 Ex.P.50: O/c of Letter to Manager Vijaya Bank, Ex.P.51: Bank Account details from Vijaya Bank Ex.P.51(a): Signature of PW. 9. Ex.P.52: O/c letter to AD.Agriculture, Mudigere. Ex.P.52(a): Signature of PW. 9.
Ex.P.53: O/c of letter to Ad.
Horticulture, Mudigere.
Ex.P.54 O/c Letter to Manager, Met
Life India
Ex.P.55 Insurance policy details from
Metlife India
Ex.P.56 O.C. of Notice to accused for
his agricultural income
Ex.P.57 O/c of notice to accused for
tenants enquiry
Ex.P.58 O/c. Of Notice to accused
for enquiry regarding handloan Ex.P.59 Copy of letter to Commissioner, BDA Ex.P.60 Copy of letter to RTO, Jayanagar Ex.P.61 Details from Passport Authority Ex.P.61(a) Signature of PW. 9 Ex.P.62 Copy of letter to Manager, Syndicate Bank, Mudigere.
Ex.P.62(a) Signature of PW. 9
Ex.P.63 Certificate of Syndicate
Bank, Mudigere.
Ex.P.64 Copy of letter to Manager,
SBM, Mudigere
Ex.P.64(a) Signature of PW. 9
Ex.P.65 Certificate u/s 65 (B) of
Indian Evidence Act from SBM
Ex.P.66 Copy of letter to Manager,
156
Spl.C.C. No.191/2017
SBI, Mudigere
Ex.P.66 Signature of PW. 9
Ex.P.67 Certificate under Sec.65 B of
IEA from SBI
Ex.P.68 Copy of letter to Manager, SBI,
JP Nagar
Ex.P.69 Certificate u/s.65B of IEA from SBI
Ex.P.70 Copy of letter to Manager,
Karnataka Bank, Sarakki
Ex.P.71 Certificate u/s.65B of IEA
from Karnataka Bank
Ex.P.72 Copy of letter to Manager,
Bank of Maharashtra
Ex.P.73 Certificate u/s.65B of IEA
from Bank jof Maharashtra
Ex.P.74 Copy of letter to Vijaya
Bank Sarakki
Ex.P.75 Certificate u/s.65B of IEA
from Vijaya Bank Sarakki
Ex.P.76 Copy of letter to Manager,
Karnataka bank, BTM Layout
Ex.P.77 Copy of letter to Manager,
Bharathi Credit Co.op.society Ex.P.78 Copy of letter to Sr. Superintendent of Post office.
Ex.P.79 RD account and SB account details from Post office, Jayanagar Ex.P.80 Copy of letter to IT Dept. Ex.P.81 Copies of IT Returns from IT Dept. Ex.P.82 FIR (Rural Lokayuktha) Ex.P.82(a) Signature of PW. 12 Ex.P.83 SP Authorization letter Ex.P.83(a) Signature of PW. 12 Ex.P.84 Search warrant Ex.P.85 Notice to accused regarding 157 Spl.C.C. No.191/2017 immovable properties Ex.P.85(a & b) Signatures of accused and PW. 12 Ex.P.86 Notice to accused regarding gold and silver articles Ex.P.86(a & b) Signatures of accused and PW. 12 Ex.P.87 Notice to Manager, Karnataka bank, BTM layout Ex.P.87(a) Signature of branch manager.
Ex.P.88 Covering letter of Commissioner
Ex.P.89 APRs of accused from BDA
Ex.P.90 ADGP authorization letter
Ex.P.90 Signature of PW. 12
Ex.P.91 Copy of letter to Commissioner,
BDA
Ex.P.92 IT returns
Ex.P.93 Copy of letter to AEE, PWD
Building Section
Ex.P.94 Copy of letter to Sr.Sub-Registrar,
Jayanagar
Ex.P.95 Copy of letter to ARO, BBMP,
BTM layout
Ex.P.96 Copy of letter to AD Town Planing
Ex.P.97 Copy of letter to ARO, BBMP,
BTM Layout
Ex.P.98 Copy of letter to Sub-Registrar,
Yelahanka
Ex.P.99 Copy of letter to Manager, Bharathi
Credit co.society, Jayanagar. Ex.P.100 Copy of letter to AEE, BESCOM, JP Nagar Ex.P.101 Copy of letter to Manager, JN Enterprises, LPG Gas, BTM Layout.
Ex.P.102 Copy of letter to branch Manager, 158 Spl.C.C. No.191/2017 LIC, Bengaluru.
Ex.P.103 Copy of letter, Branch Manager, LIC, Bengaluru Ex.P.104 Copy of letter to principal, Cormel convent High School, Bengaluru Ex.P.105 Copy of letter to the Principal, Vijaya Composite college, Bengaluru Ex.P.106 Copy of letter to Principal, K.S. Institute of Technology Ex.P.107 Copy of letter to Principal, St. Paul's School, Bengaluru Ex.P.108 Copy of letter, the Principal, Vijaya Composite College, Bengaluru Ex.P.109 Copy of letter to Principal, BNM Institute of Technology Ex.P.110 Copy of letter, Manager, Lawrence & Mayo Premiere Opticals Pvt. Ltd. Bengaluru Ex.P.111 Copy of letter ARO, BBMP, BTM Layout, Bengaluru Ex.P.112 Copy of letter ARO, BBMP, BTM Layout .
Ex.P.113 Copy of letter to Sub-Registrar, Bengaluru South Ex.P.114 Covering letter from IT department Ex.P.115 Income tax returns of Chandana & Shobha Ex.P.116 Copy of Chief Manager, Bank of Maharashtra Ex.P.117 Copy of letter to Chief Manager, Karnataka bank Ex.P.118 Copy of letter to Chief Manager, Vijaya Bank 159 Spl.C.C. No.191/2017 Ex.P.119 Copy of letter to branch manager, SBI, JPNagar, Bengaluru Ex.P.120 Copy of letter to Manager, SBM Mudigere taluk Ex.P.121 Copy of letter, branch manager, Karnataka bank Ex.P.122 Copy of letter of AEE, BESCOM, JP Nagar Ex.P.123 Copy of letter to Manager, Aparanje Jewellers Pvt.Ltd. Ex.P.124 Bank account details from Manager, SBM Ex.P.125 Bank account details from Manager, Vijaya Bank, Ex.P.126 LIC Policy details from Manager, LIC.
Ex.P.126(a) Signature of PW. 12 Ex.P.127 Educational expenses details Ex.P.128 Optical charges details from the Manager, Mayo Opticals Ex.P.128(a) Signature of PW. 12 Ex.P.129 LIC Details from Manager, LIC Ex.P.130 Educational expenses details from BNM Institute of Technology Ex.P.130(a) Signature of PW. 12 Ex.P.131 Stamp duty and registration charges details Ex.P.132 Gas Connection expenses details Ex.P.133 Educationl expenses details from Vijaya PU College Ex.P.133(a) Signature of PW. 12 Ex.P.134 Bank account details from Manager, Maharashtra bank Ex.P.134(a) Signature of PW. 12 Ex.P.135 Property No.1789 of Yelahanka 160 Spl.C.C. No.191/2017 details from Sub-Registrar Ex.P.135(a) Signature of PW. 12 Ex.P.136 Educational expenses from Vijaya Composite College Ex.P.136(a) Signature of PW. 12 Ex.P.137 Gold scheme membership details from Manager, Aparanji Jewellers Ex.P.137(a & b) Signature of PW. 12 & 14 Ex.P.138 Letter with documents from AD Town Planning, Bengaluru Ex.P.139 Property No.74 Tax details Ex.P.139(a) Signature of PW. 12 Ex.P.140 Py; No.34, BTM Layout tax details Ex.P.140(a) Signature of PW. 12 Ex.P.141 Electricity charges details from AEE, BESCOM, BTM layout Ex.P.141(a) Signature of PW. 12 Ex.P.142 Electricy charges details from AEE, BESCOM of property No.29 Ex.P.142(a) Signature of PW. 12 Ex.P.143 Tax details of property No.5 and 32 of BTM Layout Ex.P.143(a) Signature of PW. 12 Ex.P.144 LIC Policy details from LIC, Jayanagar branch.
Ex.P.144(a) Signature of PW. 12 Ex.P.145 Bank account details from Manager, Karnataka bank Ex.P.145(a) Signature of PW. 12 Ex.P.146 Bank account details from Manager, SBI Bank, JP Nagar Ex.P.146(a) Signature of PW. 12 Ex.P.147 Bank account details from Manager, Karnataka bank Ex.P.147(a) Signature of PW. 12 161 Spl.C.C. No.191/2017 Ex.P.148 Bank account details from Bharathi Co.op.society ltd.
Ex.P.148(a) Signature of PW. 12 Ex.P.149 'B' register extract & Maintenance details from RTO Ex.P.149(a & b) Signature of PW. 12 & 13 Ex.P.150 'B' register extract & Maintenance details from RTO Ex.P.150(a& b) Signature of PW. 12 & 13 Ex.P.151 Salary particulars of accused from Commissioner, BDA Ex.P.151(a) Signature of PW. 12 Ex.P.152 Schedule of wages of accused from Commissioner, BDA Ex.P.152(a) Signature of PW. 12 Ex.P.153 Educational expenses details from Head Mistress, Carmel School Ex.P.153(a) Signature of PW. 12 Ex.P.154 Educational expenes details from Principal, KSIT.
Ex.P.154(a) Signature of PW. 12 Ex.P.155 Bank account details from Manager, Vijaya bank, Sarakki Ex.P.155(a) Signature of PW. 12 Ex.P.156 Sy.No.213 of Daradahalli, Horticulture income details Ex.P.156(a) Signature of PW. 9 Ex.P.157 Copy of sale deed & encumbrance certificate executed by accused to Thimmegowda Ex.P.157(a) Signature of PW. 9 Ex.P.158 Copy of sale deed and details from Sub-Registrar, Kengeri Ex.P.159 Copy of sale deed & details from Sub-Registrar, Kengeri.
162
Spl.C.C. No.191/2017
Ex.P.160 Final Investigation Report
Ex.P.160(a) Signature of PW. 9
Ex.P.161 ABCD Statement
Ex.P.161(a)
Signature of PW. 9
Ex.P.162 'B' register extract & Maintenance
details from RTO
Ex.P.162(a & b) Signature of pw 13 & I.A.Khan Ex.P.163 IT returns details of AGO for 2004-05 to 2013 to 14 Ex.P.164 Property No. 74 details from BBMP Ex.P.165 Property No.29 of NS Palya details from ARO, BBMP Ex.P.166 Property details from ARO, BBMP BTM Layout.
Ex.P.167 Account details from Manager, Syndicate Bank, Mudigere Branch. Ex.P.168 Account details from Manager, Vijaya Bank, Devalapura Branch Ex.P.169 IT returns details of Smt.Shobha from Commissioner, Income Tax office Ex.P.170 Certificate under Sec.65B from Karnataka bank, BTM Layout Ex.P.171 AGO's son's Vehicle details from ARTO, Jayanagar Ex.P.172 Water connection details from AEE, BWSSB, BTM Laout Ex.P.173 Telephone connection details from Commercial office, BSNL Ex.P.174 Employment details of Chandana from Sr.Director, HR, Investment, Yodlee.
163
Spl.C.C. No.191/2017 LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
NIL LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW.1: M.V.Vijaya Kumar LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1 Building plan Ex.D.2 Building plan Ex.D.3 Building plan Ex.D.4 17 RTCs pertain to Sy.No. 2/P1 Ex.D.4 (a) RTC containing MR No.3/91 Ex.D.5 17 RTCs pertain to Sy.No. 3/7p Ex.D.5(a) Khata change RTC Ex.D.6 17 RTC pertains to Sy.No. 4/4 Ex.D.6(a) Khata change RTC Ex.D.7 17 RTCs pertain to Sy.No. 14/1 Ex.D.7(a) Khata change RTC Ex.D.8 16 RTCs pertains to Sy.No. 14/3 Ex.D.8 Khata change RTC Ex.D.9 17 RTC pertain to Sy.No. 15 Ex.D.9(a) Khata change RTC Ex.D.10 18 RTCs pertain to Sy.No. 24/P Ex.D.10 (a) Khata change RTC Ex.D.11 17 RTCs pertains to Sy.No. 26/P10 Ex.D.11(a) Katha change RTC Ex.D.12 17 RTCs pertains to Sy.No. 26/P13 Ex.D.12(a) Katha change RTC 164 Spl.C.C. No.191/2017 Ex.D.13 18 RTCs pertains to Sy.No. 67 Ex.D.13(a) Katha change RTC Ex.D.14 17 RTCs pertains to Sy.No. 60/P1 Ex.D.14(a) Katha change RTC Ex.D.15 7 RTCs pertains to Sy.No. 94 Ex.D.16 Volume-I Schedule 1 & 2 Ex.D.17 Volume-II Schedule 3 Ex.D.18 Volume-III Schedule 4 to 16(B) Ex.D.19 Schedule Nos.17 to 23 (S.V.SRIKANTH), LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.