Karnataka High Court
Sri Siddappa M Poojari vs The State Of Karnataka on 21 March, 2017
Equivalent citations: 2017 (3) AKR 690
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA
AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH 2017
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
Criminal Appeal No.388 OF 2011
Between:
Sri Siddappa M. Poojari
son of Maruthi Poojari,
age 48 years,
Occupation: Archaeological
Conservation Engineer
Directorate of Archaeology and
Museums, Mysore,
resident of No.815, Kaigolla Marga
Siddartha Layour, Mysore 570 011
... Appellant
(By Shri P. Chandrashekar, Advocate)
And:
The State of Karnataka,
(through by Lokayukta Police)
represented by
Learned Special Public Prosecutor
for Lokayukta. ... Respondent
(By Shri Venkatesh S. Arabatti, Special Public Prosecutor )
This Criminal Appeal is filed under Section 374(2) of the
Code of Criminal Procedure by the advocate for the appellant
praying that this Court be pleased to set aside the order dated
:2:
28.3.2011 passed by the Principal Sessions Judge and Special
Judge, Mysore in Special Case No.37 of 1999 convicting the
appellant/accused for the offences punishable under sections
13(1)(e) read with Section 13(2) of the Prevention of Corruption
Act, 1988 and the appellant/accused is sentenced to undergo
rigorous imprisonment for a period of 3 years and he is sentenced
to pay a fine of Rs.65,88,100/-(Rupees sixty five lakhs eighty
eight thousand and one hundred only) for the offences punishable
under Sections 13(1)(e) read with Section 13(2) of the Prevention
of Corruption Act, 1988 and in the event of the default of payment
of fine, the accused shall undergo further sentence of rigorous
imprisonment for a period of one year.
This Criminal Appeal having been heard and reserved on
16.01.2017 and coming on for pronouncement of judgment this
day, the Court delivered the following:
JUDGMENT
This appeal is preferred against a judgment of conviction and sentence of rigorous imprisonment for a period of three years and a fine of Rs.65.88 lakh for an offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as the 'PC Act', for brevity), passed against the appellant.
2. The case of the prosecution was that the appellant was working as an Assistant Conservation Officer of the Directorate of Archaeology and Museums, Mysore. On :3: allegations of the appellant having amassed wealth disproportionate to his known sources of income, and on the basis of a Source report, for a check period from 21-8-1986 to 15-11- 1995, a case is said to have been registered in Crime no.20/1995 by the Lokayukta Police. A search warrant is said to have been obtained from the court below by the said police, to conduct a search of premises bearing no.703, Ward no.4, Madarageri, as also premises no.718 of the same area in Hiremasalli, Indi Taluk, Bijapur District. And after the search, many articles and documents were said to have been seized and on the basis of the same, it was alleged that the appellant had amassed wealth disproportionate to his known sources of income, exceeding the same by about 190%.
After further investigation, it was reported that the assets and expenditure of the appellant during the check period, which was in excess of his known sources of income was Rs.24.57 lakh. He was accordingly charge-sheeted and had stood trial. The prosecution had examined 19 witnesses, the appellant had :4: tendered evidence in defence and had examined 3 witnesses in his defence.
The trial court had framed the following points for consideration:
"1. Whether the investigation is conducted by the competent officers working in Lokayuktha and the investigation conducted by them is legal?
2. Whether the prosecution has proved beyond all reasonable doubt that the accused had possessed assets disproportionate to his known source of income and if so, to what extent?
3. Whether the accused has committed the offence under Section 13(1)(e) punishable under Section 13(2) of Prevention of Corruption Act, 1988?"
The trial court has answered the same in the affirmative and has convicted the appellant as aforesaid. It is that which is under challenge in this appeal.
3. The learned Counsel for the appellant would point out that the following are the particulars of the disputed expenditure, disputed income and the disputed assets, attributed to :5: the petitioner. It is also sought to be pointed out that the difference of the respective amounts as ultimately found by the trial court with reference to the above. The same is reproduced hereunder in tabular form.
DISPUTED EXPENDITURE
Sl. Particulars As per As per Difference
No. Accused Judgment amount
1 Domestic 59370 137100 77730
Expenditure
2 YAMAHA Rx fuel 500 5100 4600
expenses
3 TATA Estate Car 14000 14000
Fuel expenses
4 TATA Estate Car 7287 7287
Service charges
5 Agriculture 151500 151500
Expenses
6 Lodging expenses 9000 25386 16386
68870 340373 271503
DISPUTED INCOME
Sl. Particulars As per As per Difference
No. Accused Judgment Amount
1 Agriculture income 475000 345240 129760
derived from Sy.
No. 228 situated at
Hiremasaali village
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2 Agriculture income 552000 123000 429000
derived from Sy.No.
568/2A & 2B
situated at
Mahalbagayath
3 Agriculture income 75000 75000
derived from Sy.No.
135 situated at
Sangogi village
4 Stridhan 80000 80000
5 Loan from 175000 175000
Basavaraj
Ramkanth Desai
6 Loan from 157000 157000
S.T.Walligoudar
7 Let out of TATA 100000 100000
Estate Car
8 Bank Interest 7975 5684 2291
9 Sale of Motor Cycle 32000 32000
KA 09 J6981
1653975 473924 1180051
DISPUTED ASSETS
Sl. Particulars As per As per Difference
No. Accused Judgment amount
1 Value of the 279250 279250
gold articles
2 Sale 230000 230000
consideration of
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Site No.468
3 Value of House 1040000 1040000
No.815
belonging to
Accused Mother
4 Survey No.135 73660 73660
(8 acres)
5 Value of 191942 210078 18136
Household
articles
191942 1832988 1641046
It is contended that in so far as the amount of Rs.1,37,100/- attributed to domestic expenditure during the check period is concerned, it is urged that the trial court has failed to consider the following aspects. It is pointed out that the trial court has placed reliance purely on a Statistical report to arrive at the above amount and has drawn an unscientific conclusion in arriving at the quantum of income.
Further, it is urged that the staple food products were agricultural produce from various agricultural lands cultivated during the check period.
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Though the Statistical Department Report was furnished, none was examined to establish the Report. It is contended that mere furnishing of a Report and marking it through other witnesses, would merely amount to a presentation, but not proof thereof. There was no occasion to cross- examine the Report Provider to dispute the analysis in the Report.
It is further contended that PW.17 and PW.18 have admitted that they have not discussed anything about the information provided by the accused. The investigation agency has already placed the expenditure pertaining to durable goods, fuel, lighting, clothing, footwear, rents and taxes under a separate heading. Therefore, these headings must be reduced from the specification in the Report. The expenditure towards pulses and grams must be reduced in consonance with the agricultural produce generated in the agricultural lands of the accused. The report does not specify as to the reasons for the accused being categorized and classified under the class bearing expenditure of Rs.300 to Rs.400.
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It is contended that in so far as the amount of Rs.5,100/- attributed to fuel expenses incurred in respect of the Yamaha motorcycle is concerned, it is urged that the trial court has accepted the prosecution's contention without any concrete and cogent evidence. It is urged that the trial court has assumed the expenditure ignoring that the prosecution has failed to prove its case.
It is urged that the Investigation agency has assumed the expenditure. No person was examined to ascertain the quantum of expenditure, including the purchaser. No document was produced to establish the expenditure. And no reasons were specified in the final Report for concluding this expenditure. The trial court can evaluate the correctness of finding submitted by the investigation agency, but cannot come to a strange conclusion.
Insofar as the fuel expenses of the TATA Estate Car and Service charges in a sum of Rs.14,000/- and Rs.7,287/- is concerned, the trial court has accepted the Investigation Report, without expecting a standard proof from the prosecution. It is : 10 : contended that no proof was submitted to establish this expenditure.
It is contended that in the Schedule to the document, it was clearly mentioned that the vehicle was given on hire purchase to Shivangouda Siddalingappagouda Patil, DW.3. That PW.2 has admitted the transaction and recorded the statement of DW.3. That statement is not part of the charge sheet. No reason was stated for excluding the same from the charge sheet. PW.17 has not discussed anything about this matter in the final report, but merely has furnished a statement dated 7.8.1997, which is not substantiated by a case diary. No reasons were stated as to why the statement recorded by the earlier Investigating Officer, PW.2 was suppressed. The prosecution has not examined Shivanna Gouda Siddalingappa Gouda Patil. So the prosecution has not proved its case, instead, has examined this witness.
Insofar as the amount of Rs.1,51,500/- towards agricultural expenditure of all agricultural lands is concerned, the trial court without assigning any reasons has arrived at a specific quantum as the agricultural expenditure.
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It is urged that major reports are suppressed by the investigation agency, as admitted by PW2 and to ascertain the expenditure, no person was examined, thereby there was no occasion for the defence to dispute the same.
Further, the agricultural produce sale bills were seized at the time of mahazar and the same was mentioned in the inventory. These bills were also suppressed in the final report without assigning any reasons.
It is contended that since the accused has presented the net agricultural income, no expenditure can be considered at that stage. The points of analysis in relation to the agricultural income should be considered as an integral part of the submission.
Insofar as the sum of Rs.25,386/- towards lodging expenses is concerned, the trial court has laid emphasis on the prosecution not proving its version and has completely ignored that the burden of proof is on the prosecution to prove its case beyond reasonable doubt. It is only after production of such proof, that the burden would shift on the accused.
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It is further urged that it is clearly specified in the statement that the friends of the accused on many occasions used to pay the bills of the lodges, in which they had stayed, though had booked in the name of the accused. The Investigating Officer in his report has admitted that on many occasions, the brother and friends of the accused were also staying in the lodges booked in the name of the accused. None of them were examined in order to discredit this contention. Neither the lodge owner nor the staff were examined to confirm the payment made.
It is contended that under the head 'Disputed Income', in so far as the income from agricultural land bearing survey No.228 measuring 3 acres 22 guntas situated at Hiremasali village, Indi Taluk, Bijapur, in a sum of Rs.3,45,240/- is concerned, it is contended that the trial court has relied heavily on the unestablished agricultural report without the prosecution establishing the same. It is urged that the report is merely submitted and marked in court without the prosecution establishing it as per the required standard of proof. The author of the report was not examined and there was no occasion for the : 13 : accused to cross-examine him. The report does not specify the essential requirements such as, soil condition, water source, climatic condition, method of cropping, which are essential to ascertain the yield that can be generated in the land. The Report does not even specify the basis for arriving at the yield and the expenditure, as also the source from which the rates of individual crop were taken. The bills submitted along with the statement, which were marked as Exhibits D.16 to 20 were suppressed and concerned persons were not examined in that regard. It is therefore contended that the net income of Rs.475000/- must be considered as the income generated from Survey No.228.
Insofar as the amount of Rs.1,23,000/- in respect of agricultural income from agricultural land bearing survey No.568/2A and 2B, totally measuring 7 acres 22 guntas situated at Mahalbagayath, Bijapur District is concerned, the trial court, based on the investigation report and other document, has rejected this particular source of income. The trial court has ignored that the disposal of a property is subject matter of individual person and circumstances, which cannot be assumed : 14 : until such persons are examined. Therefore, it is contended, that the entire finding of the trial court is based on assumption and not based on standard of proof.
It is contended that PW.2 has deposed in his examination- in-chief that he had received an agricultural report from the Agricultural Director, Bijapur Taluk, on 16.5.1996. According to this report, the agricultural income from this land amounted to Rs.4,75,000/-. PW.2 has admitted that the said report was not found in the charge sheet. He has also admitted that at the time of seizure of the house of accused, no.5 bills amounting to Rs.3,93,395/- were found. It is urged that PW.17 had admitted that at the time of seizure of house of the accused, bills for having sold the agricultural produce were found but the purchasers were not examined.
He has further admitted that his predecessor has mentioned in the CD that he has obtained Agriculture Report with respect to survey No.568/2A and 2B amounting to Rs.4,75,400/- and has also admitted that he has considered only the first report that is on : 15 : 15.12.1995 and has not discussed about the reports in his final report.
It is contended that PW.18 has admitted that the bills issued by Sha Kushalal Biradhi Chand, Bijapur pertaining to sale of agricultural produce grown in survey No.568/2A and 2B were seized at the time of conducting the raid. Thereafter, on perusing the file, he had admitted that such bills were not submitted to court along with the seizure mahazar.
Insofar as the agricultural income from Survey No.135 measuring 9 acres situated at Sangogi village is concerned, it is contended that the trial court has ignored the basic essential on the concept of burden of proof and that the entire evidence is in favour of the prosecution.
It is contended that PW.2 had obtained Agriculture Report dated 13.5.1996 from Agriculture Director, Indi Taluk and he had received the same on 25.6.1996. According to this Report, the agriculture income from Survey No.135 is Rs.1,26,640/- (including 8 acres of land belonging to the accused's mother in Survey No.135). PW.2 has admitted the fact that the said Report : 16 : was not part of the charge sheet. PW.17 has admitted the fact that the report obtained by PW.2 was not found in the charge sheet and in the final report, income from this land is not considered.
It is contended that PW.18 has admitted the fact that the accused, in his statement, has stated that there was standing crop of groundnut, jowar, etc., at the time of purchase of land. And the previous Investigating Officer who had examined the seller of this land had not examined about the standing crop and there is no finding about the standing crop in the final report. PW.14 has admitted in the cross-examination that at the time of selling of land, there was a standing crop.
Insofar as the stridhan of Rs. 80,000/- received by the wife of the accused Shakuntala Poojari from her parents at the time of purchase of House No.715 situated at Vinaya Marga, Siddartha Layout, is concerned, it is contended, the trial court has rejected the evidence on assumptions.
It is contended that PW.2 has admitted that he had examined the father-in-law of the accused, who had stated that he had given Rs.80,000/- at the time of purchase of House No.715. : 17 :
It is contended that PW.18, the subsequent Investigating Officer has admitted that PW.2 had recorded the statement of the father-in-law and mother-in-law of the accused on 16.10.1996, and these statements are not part of the charge sheet.
Insofar as the sum of Rs.1,75,000/- borrowed from one B.R.Desai on 18.3.1994 for the purchase of agricultural land bearing survey No.568/2A and 2B is concerned, the trial Court has failed to consider that the Investigation agency has not discussed anything about this transaction. This head was rejected without assigning any cogent reasons.
It is urged that PW.2 has deposed that the accused had borrowed from Basavaraj Ramakanth Desai, a sum of Rs.1,75,000/- on 18.3.1994 for the purchase of agricultural land bearing survey No.568 as per the statement made by DW.1 before him on 9.9.1996. PW.17 has admitted that he has not discussed the accused's explanation in the Statement and the statement of DW.1 in the final report with regard to the loan transaction. PW.18 has also admitted that the previous Investigating Officer had examined Basavaraj Ramakanth Desai and he has further : 18 : stated that he has not discussed about the statement in his final report. It is contended that the prosecution did not examine this witness to discredit the transaction and had examined this witness as DW1 and got marked the document as Exhibit D.3.
Insofar as the amount of Rs.1,57,000/-, which the wife of the accused had borrowed from S.T.Walligoudar by executing a bond on 18.11.1992 to purchase the house bearing No.715, Vinaya Marga, Siddhartha Layout, Mysore, is concerned, the trial court has failed to consider that the investigating agency had not discussed anything about this transaction. It is urged that this heading was rejected without assigning any reasons.
It is urged that S.T.Walligoudar was examined as DW.2 and this witness has admitted that he is the friend of the accused and he has given a sum of Rs.1,57,000.00 for the purpose of purchasing a house at Mysore. DW.2 had further explained this source of income by stating that he was the owner of agricultural land to an extent of 25 acres and growing sugar cane.
It is contended that PW.2 has admitted that he had examined Walligoudar, but that statement is not filed along with : 19 : the charge-sheet. The statement found in the charge sheet is said to be made by the subsequent Investigating Officer. PW.17 has admitted that he has not discussed anything about the loan transaction and the documents submitted by the accused in his final report to the court.
It is contended that PW.18 has admitted that the previous Investigating Officer had recorded the statement of DW.2 on 9.9.1996 and that statement was not produced along with the charge sheet. The prosecution has not examined this witness to discredit the transaction, but has examined this witness as DW.1 and got marked the document as Exhibit D.3.
Insofar as the amount of Rs.1,00,000/- which was lent by Siddalingappa Gowda Shivanna Gowda Patil, under a Hire Purchase Agreement, by executing a bond dated 21.10.1995 is concerned, the trial court has failed to notice that the prosecution had failed to establish its contention or tender evidence.
It is urged that Siddalingappa Gowda Shivannagouda Patil, DW.3, has admitted that he had lent Rs.1,00,000/- under a Hire : 20 : Purchase Agreement and had taken possession of TATA Estate Car.
It is urged that PW.2 has admitted that he had recorded the statement on 9.9.1996 of Siddalingappa Gowda Shivannagouda Patil. PW.2 has further admitted that DW.3 had deposed before him that he had taken possession of the vehicle by lending a sum of Rs.1,00,000/- on 20.10.1995. PW.17 has stated that he is not in a position to state whether the statement of Siddalingappa Gowda Shivannagouda Patil was recorded on 7.8.1997, as the case Diary was misplaced.
Insofar as the bank interest accrued on Saving Bank Accounts in a sum of Rs.5,684/- is concerned, the trial court has not discussed on the same. It is asserted that on the perusal of bank statements, the total interest accrued on the Saving Bank Accounts amounted to Rs.5,684/- and not Rs.7975/-.
Insofar as the sale of YAMAHA motorcycle RX 100 to one Shri Babu, a resident of No.2183, Kamatgeri, Mandi Mohalla, Mysore for a sum of Rs.32,000/- is concerned, it is contended, the investigating agency has not discussed anything about the same, : 21 : though the delivery note was part of the charge sheet. And the trial court assumed on its own and arrived at its findings.
It is asserted that DW.4, accused himself has stated that he had purchased the YAMAHA motorcycle in the year 1993 and he has sold the same on 2.11.1995 to Mr.Babu for a sum of RS.32,000/-. The investigating Officers has not discussed with regard to this transaction and the accused's explanation.
It is contended that insofar as the value of the gold articles under the head 'Asset', the trial court, without there being substantial evidence, has drawn presumption and sought to compensate the prosecution lacunae. It is urged that the accused has explained in detail about the inheritance of gold by him and his wife during the marriage and other occasions. And also about the gold articles received as gift by the relatives at the time of marriage and other occasions.
It is contended that PW.2 had recorded the statements of the mother of the accused, father-in-law of the accused, mother-in- law, sister-in-law and other gold merchants at Bombay, but those statements are not part of the charge sheet. PW.2 has admitted that : 22 : the mother of the accused and his in-laws had gifted gold articles at the time of his marriage. PW.17, who is the author of the final report has accepted that he has not discussed anything about statement of the father-in-law of the accused with regard to gold. PW.18 has admitted that his predecessor, i.e., PW.2 has recorded the statement of the father-in-law on 16.10.1996 and neither PW.17 nor he has discussed anything about the gifted gold articles and also have not assigned any reasons. No discussions were made about other articles specified in the statement.
Insofar as the sale consideration of site bearing No.468A situated at Siddhartha Layout, Mysore, is concerned, the investigation agency has not placed any concrete evidence to discredit the statement averments. Even they have not lead any evidence to substantiate its contention.
It is contended that PW.2 has stated that during the investigation, he had examined S.P.Ratnakar and other witnesses, but their statements are not found in the charge sheet. PW.2 has relied upon a Case Diary to support his contention. PW.2 has admitted that during investigation, he had found that the father-in- : 23 : law of the accused, S.P.Rathnakar had issued a Banker's cheque in favour of the seller of the house site at Siddarthnagar, Mysore. PW.18 has admitted that the erstwhile Investigating Officer, PW.2 had recorded the statements of the in-laws of the accused on 16.10.1996 and the same were not found in the charge sheet. Neither the statement of the seller Dasrath Raj was produced along with the charge sheet nor was he examined before the court.
Insofar as Shivabalavva Poojari, the mother of accused having purchased a house property bearing No.815, Kaivalya Marga Siddartha Layout, through sale deed dated 22.12.1994 is concerned, neither the trial court nor the investigation agency have assigned any reasons for denying the contention and considering the same as the benami property of the accused.
It is urged that this property was bought by the mother of the accused with her own earnings and borrowings and the accused had not contributed any amount from his income to purchase this property. The sale consideration was Rs.6,90,000.00, but there was no basis to consider the sale consideration as Rs.9,50,000/-. It is contended that PW.2 has : 24 : admitted that he had recorded the statements of following persons at Mumbai and Bombay, Sharanavva, the sister of accused, Shyam L Raheja, Arjun Jigajinagi, Shyamala Siddappa Hosalli, Shanthabhai Aiyappa Kamble, Yamunavva and Renuka Lakshman Herodagi. The said persons had deposed before PW.2 that the mother of the accused had borrowed loan from Sharanavva and Sharanavva had sold her jewels through Arjun Jiganjinagi and Shyam L Raheja.
It is contended that the statements recorded by PW.2 has not been taken into consideration by the subsequent investigating officers (PW.17 and PW.18) and have been discarded without assigning any reasons. The seller, B.V.Acharaya was not examined before the trial court.
In so far as the mother of the accused having purchased agricultural land bearing survey No.135 measuring 8 acres at Rs.73,660/- including registration charges, is concerned, neither the trial court nor the investigating agency have assigned any reasons for denying the contention and considering the same as the benami property of the accused.
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It is urged that the property was purchased by the mother of the accused with her own independent source of income i.e., sale of eggs and agriculture income from ancestral property. There is no basis or any evidence to attribute this property to the accused.
Insofar as the value of the household articles is concerned, the trial court concluded that the valuation of the household articles was done in the presence of the wife of the accused and panchas and hence, the valuation cannot be discarded. It is not the case of the investigating agency itself that the articles were valued as stated by the wife of the accused.
It is urged that the investigating agency has neither accepted nor denied the value of the articles as in the statement.
It is thus contended that the value of the total asset is Rs.14,17,343, the expenditure is Rs.2,51,845, and the income is Rs.23,28,032. And the alleged disproportionate source of income on adding the asset and expenditure and deducting the income would indicate that the same is minus 28.3% and hence the appellant would stand absolved.
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4. The learned Special Public Prosecutor, Shri Venkatesh Arabatti, on the other hand, would contend that the trial court has made a detailed analysis of the evidence in respect of each item of property and the claim put forth by the appellant and has rightly arrived its conclusion. In this regard, it is elaborated item-wise as follows:-
In so far as the sale consideration for the house property bearing no.715 is concerned, it is pointed out that the court below has accepted the sale consideration as mentioned in the Sale Deed of Rs.1,97,000/-, and not Rs.3,25,000/- as per the prosecution, since the vendor was not examined, who had given the statement that the property was sold by him to the accused for Rs.3,25,000/-. It is therefore contended that there is a difference of Rs.1,28,000/-.
In so far as the construction cost of Rs.2,54,871/- in respect of the first floor incurred during the year 1992-93, is concerned, it is contended that the trial court has accepted the contention of the accused that he was an Engineer and had spent only Rs.2,00,000/-. Further, the valuator was not examined by the prosecution to prove Exhibit P.71. It is urged that the deduction : 27 : of Rs.54,871/- was given by trial court in view of the documents at Exhibits D8 and D9, produced by the accused to show that he had purchased the wood material.
In so far as the sale consideration in respect of site no.468A in a sum of Rs.1,80,000/- is concerned, it is pointed out that the contention of the accused was that his father-in-law had given Rs.1,80,000/- by way of Demand Draft directly to the vendor. The Sub-Registrar, who was examined as PW.8 has stated that the sale consideration was Rs.2,30,000/- as per the Sale Deed dated 09.03.1993. No material was placed in this regard to show that the money was given by the father-in-law. Even though it is claimed that the father-in-law was a Granite Merchant at Mumbai, his income-tax returns or other supporting document should have been produced in support of this contention. It is contended that the accused has set up several persons to show that he has received amounts and he has not paid such amounts to any one of them thereby creating doubt about the genuineness about this transaction.: 28 :
In so far as the sale consideration in respect of Survey No.135, measuring 8 Acres, of Sangogi Village in a sum of Rs.63,000/- is concerned, it is pointed out that the accused has contended that his mother had purchased the property from her savings. She had also earned money from selling eggs and earned some money from the lands in Survey No.228 prior to 1994 and this was not accepted by the trial Court.
In so far as the sale Consideration in respect of Yamaha motorcycle in a sum of Rs.35,225/- is concerned, it is contended that the contention of the accused that he had sold the Yamaha Bike for Rs.32,000/- cannot be accepted since Ex.P49, an extract from the Regional Transport Office showed that he was the owner. And that Exhibit D.12, a Delivery Note dated 02.11.1995 regarding the delivery of the vehicle to one Babu cannot also be accepted.
In so far as the value of the household Articles at No.815, Siddartha Layout, Mysore, at Rs.2,10,078/- is concerned, it is contended that house No.815 was raided and a Mahazar was : 29 : prepared in presence of the wife of the accused and other witnesses, who have signed the Mahazar. The accused has claimed the value at Rs.1,91,942/- which is not correct. The trial court has rejected the contentions of the accused that the valuation is high and that the copy of the Mahazar was not given to his wife. Whereas the wife of the accused has received the copy of the mahazar under acknowledgment and the other witnesses have also signed the mahazar.
In so far as the gold and silver articles are concerned, it is contended that as per the contention of the accused, the gold ornaments were gifted for himself, his wife and his children on various occasions as per customary practice. The gold ornaments included some items belonging to his mother also. Bharathi Ratnakar, the younger sister of the wife of the accused has given statement, as per Exhibits D.13 and D.14, who had stated that she came to Mysore to purchase the ornaments under and left the same with the wife of the accused and went to Mumbai.
It is contended that the accused, in his evidence, has stated that at the time of marriage, i.e., 04.06.1983, he had received 93.5 : 30 : grams of gold ornament as gift, his wife had received 338.5 grams of gold ornament as gift and his mother gave 77 grams as gift to the wife of the accused. Further, at the time of raid, the mother of the accused was with them and she was having 272 grams of gold ornaments, which were seized and 47 grams of gold ornaments of Bharathi Ratnakar was also seized. The children of the accused had received 147 grams of gold ornaments as gift on various occasions, such as naming ceremony and birthdays. The Investigating Officer has valued the gold ornaments at Rs.2,79,250, but admitted the omissions regarding recording the statements of Ashok Prabhakar Sasthe.
It is pointed out that the accused has admitted that he has not declared the gold ornaments. Further, the accused has not examined Bharathi Ratnakar regarding 47 grams of gold ornaments and it is to be noted that Ex.D13 and Ex.D.14 are just prior to the date of the raid (08.11.1995) and are dated 17.10.1995. And the reason for keeping these gold ornaments with the wife of the accused wife is not explained.: 31 :
It is further contended that the contentions of the accused in this regard cannot be accepted since gifting a huge amount of gold ornaments is not the normal practice of marriage and other customs. Further, it is pointed out that Bharathi Ratnakar has not been examined by the accused and it is not his case that she was residing in his house at the time of raid.
It is pointed out that as per the charge sheet, 455.30 grams of gold ornaments and 1930 grams of silver articles were found at the time of raid. The value of the gold was assessed at Rs.2,25,300/- and silver was assessed at Rs.10,990/-. In the bank locker, 504.30 grams of gold ornaments and 110 grams of silver articles were found. The value of gold ornaments was assessed at Rs.2,27,385 and silver was assessed at Rs.600. In total, 959.60 grams of gold ornaments valued at Rs.4,52,685 and silver articles of Rs.10,990 was in their custody. The Investigating Officer has given credit to the gold ornaments of the wife at the time of marriage to the extent of Rs.1,22,450/- and the further amount of Rs.50,985 is also not taken into account. Hence, after deducting : 32 : an amount of Rs.1,73,435/-, only an amount of Rs.2,79,250/- is taken into account as the assets of the Accused.
In so far as the household expenses are concerned, it is pointed out that the evidence of PW.2 in this regard is undisputed.
In so far as the fuel expenses of Yamaha motorcycle is concerned, it is pointed out that the trial court has observed that the vehicle was with the accused from 26.8.1995 to 20.10.1995 and the amount of Rs.500/- claimed by the accused was not tenable.
In so far as the fuel expenses in respect of the Tata Estate Car is concerned, it is pointed out that the trial court has observed that no document was produced for having given the vehicle on hire purchase and the contention of the accused could not be accepted in this regard.
In so far the maintenance of the Tata Estate Car is concerned, it is pointed out that no evidence was produced to show that the service was done by DW.3. DW3 in his evidence has not mentioned anything about this item of expense, though he : 33 : has said that he had carried out the repairs and maintenance after he purchased the vehicle.
In so far as the income tax paid by the wife of the accused in a sum of Rs.11,069/- is concerned, it is pointed out that the trial court has held that even if it was paid by the wife, as contended by the accused, it was an item of expense and has to be treated so and therefore the contention of the accused was not accepted.
In so far as the lodging expenses in a sum of Rs..25,386/- is concerned, it is pointed out that the trial court has held that the bills of the lodges were produced, which showed that they were in the name of the accused and no evidence was produced by the accused to show that he has incurred only Rs.9,000/-.
With respect to land bearing Sy.No.228, measuring 3 acres 11 guntas at Hiremasali village, Indi Taluk, is concerned, it is pointed out that the trial court has observed that it was the ancestral property of accused and was acquired at a partition. The brother of the accused had retained house No.718 in Sy.No.228 and the accused was in possession of the land. The accused had claimed that he earned an income of Rs.4,75,000/- from the land, : 34 : but has not placed any material before the Court. The accused has also not furnished any year wise details for the same.
It is further pointed out that the report of the Assistant Agricultural Director (AAD) would show that the total income was Rs.4,12,540/-; expenses was Rs.67,300/- and the net income was Rs.3,45,240/-. In this report, the AAD has taken the year- wise figures right from April 1985 till 1996. That the accused had contended that the land has a natural source of water and is not dependent on rain. However, in the cross examination, he has admitted that it was not irrigated land and so also, the Secretary, Gram Panchayath has stated that the land was dependent on Monsoon.
It is contended that the trial court has observed that the Investigation Officer has taken the income as Rs.2,66,520/-, instead of Rs.3,45,240/- as per the report at Exhibit P.27. The accused has contended that the bills from V.B.Patil Lingadalli of Bijapur were not on record. However, Exhibits D.16 to D20 were the bills from V.B.Patil Lingadalli and are not proved, since the author was not examined by the accused. Hence, the report of the : 35 : AAD was accepted by the trial Court and the amount of Rs.2,66,520/- as per the Investigation Officer was rejected. Hence, an amount of Rs.78,720/- was added by the Court to the income of the accused.
In so far as the lands bearing Survey No.568/2A & 2B, at Mahalbagayath village, Bijapur is concerned, the trial court has noticed that the contention of the accused was that the Investigating Officer has taken the income as Rs.1,23,000/- in lieu of Rs.5,52,000/-, relying on the report dated 15.12.1995. However, PW.2 has stated that he has received a report dated 16.05.1996, which showed the income of Rs.4,75,000/- and the said report was not furnished along with the charge sheet. The prosecution has contended that the report dated 15.12.1995 was based on the pahanis and since the lands were purchased only on 28.03.1994, the amount of Rs.1,23,000 was correct.
Further, it was noticed by the trial court that the accused has contended that the bills pertaining to Shapuslal Biradchand, Bijapur were not considered and no reasons were assigned. However, the defence has not examined any witnesses in support : 36 : of the bills and the amounts therein. In addition to the same, there was nothing to show that these bills amounting to Rs.3,93,395/- are in relation to the aforesaid lands.
Further, in the cross examination of PW.2, he has stated that during the raid on 08.11.1995, the bills to the tune of Rs.3,93,395/- were found and hence a request was made to give a proper report and the said bills were also furnished to the AAD on 18.01.1996 and based on the same, a report dated 16.05.1996 was obtained which showed the income of Rs.4,75,000/-. It is pointed out that the trial court has considered the fact that the lands were purchased only on 28.03.1994 in the name of the wife of the accused and within a gap of 19 months, it was not possible that an amount of Rs.5,52,000/- could be earned by purchasing the said lands at Rs.63,000/- and Rs.76,000/- only and the claim of Rs.5,52,000 was exorbitant.
In so far as the lands bearing Survey No.135, at Sangogi village, Bijapur is concerned, it is pointed out that the trial court has stated that the accused has contended that this property was purchased by the accused and the Investigating Officer has not : 37 : stated anything about this. He has further contended that CW.52 and CW.73 were not examined in relation to the standing crops. An income of Rs.75,000/- towards the standing crop ought to have been considered. However, there was nothing in the sale deed dated 24.8.1995 to show that the land was sold along with the standing crops and there was nothing to indicate the value of standing crops. And no material was placed by the accused to show the sale of agricultural produce at Rs.75,000/-.
It is contended that as per the Investigation Officer, a report dated 13.05.1996 along with a covering letter dated 25.06.1996 was obtained, which showed an income of Rs.1,26,640, but however, the said report was not placed before the court.
It is contended that the purchase consideration for the said lands measuring 9 acres was only Rs.72,000/- and hence the existence of standing crop worth Rs.75,000/- cannot be accepted. Even otherwise, if standing crops of the value of Rs.75,000/- existed, there is no reason forthcoming as to why the vendor would sell the lands for only Rs.72,000/-.
: 38 :
In so far as Stridhana in a sum of Rs.80,000/- is concerned, the trial court has observed that the contention of the accused was that his wife has received Rs.80,000 as Stridhana and PW.2 has admitted this income based on the statements of the in-laws of the accused. However, the trial court opined that it could not be accepted since there was no material in the form of evidence placed by accused regarding Stridhana. Even though DW4 has stated so, in his evidence, it was only his claim. Since the onus was on him to prove his claim, it was held, this cannot be accepted.
In so far as the loan of Rs.1,75,000/- from Ramakanth Desai, DW1 is concerned, it is pointed out that the trial court has observed that the contention of accused was that he had taken loan of Rs.1,75,000/- from Shri Ramakanth Desai (DW.1) for purchase of land bearing Survey No.568/2A and 2B. DW.1 has stated that the loan was given under Exhibit D.3. However, DW.1 has admitted that he did not have any income apart from agriculture and hence it was not believable that he gave the amount of Rs.1,75,000/- as loan. Apart from that, he did not have any : 39 : documents to show his agricultural income for the year 1994 to the tune of Rs.10 lakh to Rs.12 lakh, as claimed by him. There was no endorsement regarding repayment of the loan. Hence, the document, Exhibit D.3 and the evidence of DW.1 could not be relied upon. The lands were purchased in the name of the wife for Rs.1,39,000/- and therefore, the need for obtaining loan of Rs.1,75,000/- was not explained for the purpose of buying properties worth Rs.1,39,000/-.
In so far as the loan of Rs.1,57,000/- from Shri Walligowdar (DW.2), is concerned, the trial court has stated that the accused had contended that he had taken loan of Rs.1,57,000/- from Shri Walligowdar (DW.2) on 18.12.1992 as per Exhibit D.4 for the purpose of construction of the house. There was no endorsement on Exhibit D.4 regarding repayment and no material regarding repayment of the loan. Hence, the loan transaction could not relied upon since no material was placed to prove the loan transaction.
In so far as the loan of Rs.1,00,000/- from Sri Siddalingappa Patil (DW3) is concerned, the accused has : 40 : contended that he had taken a loan of Rs.1,00,000/- from Sri Siddalingappa Patil (DW.3) for letting the TATA Estate vehicle on hire purchase as per Exhibit D.5 and that this amount was repaid in the year 1998-99. As per Exhibit D.5 dated 20.10.1995, there was no endorsement of repayment of the loan amount of Rs.1,00,000/- in the year 1998-99, as contended by the accused and DW.3 in his evidence.
If according to Sri Siddalingappa Patil (DW3), who is a resident of Kannur of Jamkhandi Taluk, and that he had taken the vehicle on hire purchase on 20.10.1995 by payment of Rs.1,00,000/-, the vehicle being seized from Prerana Motors in Mysore could not be accepted. Hence, it was clear that the evidence of DW.3 was not at all reliable and this defence set up by the accused could not be accepted, more so in the absence of any material to prove that DW.3 had sufficient source to lend an amount of RS.1,00,000/-. Further, in one breath, DW.3 says that he has given loan and in another breath, he says that he has given Rs,1,00,000/- for the vehicle for hire purchase. : 41 :
Insofar as the sale consideration in respect of house No.815, Siddartha Layout, Mysore - Rs.6,90,000/-, is concerned, it is pointed out that the trial court has observed that house No.815 was purchased by his mother on 22.12.1994 for Rs.6,90,000/- including stamp duty and registration fees. For the purchase of the house property, the sister of the accused had sold gold worth Rs.2,00,000/- on 18.11.1994 and 28.11.1994 to Ashok Prabhakar Saste at Bombay.
The accused has contended that his sister had given Rs.1,00,000/- in addition to gold ornaments for purchase of the property and his mother had obtained a loan of Rs.2,50,000/- from Shri Shivannagowda Patil on 19.12.1994 as per Exhibit D.1.
The trial court has concluded that insofar as the difference in agricultural income in respect of Survey No.228 in a sum of Rs.78,720/- was to be added to the income of the accused. The difference in value of the amount of sale consideration as mentioned in the sale deed (Rs.1,97,000/-) and as claimed by the prosecution (Rs.3,25,000/-) in a sum of Rs.1,28,000/- was to be deducted from the value of the assets. The difference of : 42 : Rs.54,871/- in value of the cost of construction (Rs.2,54,871/-), as claimed by the prosecution and Rs.54,871/- worth of bills proved by the accused, was to be deducted from the income of the accused.
After taking into consideration the above three items, it would be Rs.2,61,591/-. If the said amount was deducted from the total assets (Rs.24,57,625), the total assets would be Rs.21,96,034/- which would be the amount of the assets and expenditure in excess of the known source of income, which was 170% (169.845%).
The trial court has concluded that the accused has not been able to place any material before the Court to substantiate his contention that the properties which were acquired by him during the check period (Between 1992 and 1995) in his name and in the name of his mother and wife were from the legitimate source of income or loan. The loan documents, sale of motorcycle, purchase of gold ornaments, etc., were clearly created documents, because, if they were really existing, they would have been seized at the time of the raid. He had not obtained permission prior to : 43 : the purchase of Site No.468A. Though he claims that the gold ornaments received were by way of gift on various occasions and that the same was declared in the APR, the same was not placed before the Court. Onus was on the accused to substantiate his claim by placing sufficient and satisfactory material before the court.
The learned SPP accordingly seeks dismissal of the appeal.
5. In the light of these rival contentions, the justification put forward in respect of each of the disputed items as found by the trial court, mayt not be tenable as would appear for the following reasons:
As regards the Sale consideration of House No. 715-in a sum of Rs.3,25,000/-, the trial Court has accepted the sale consideration as mentioned in the Sale Deed at Rs.1,97,000/- and not Rs.3,25,000/-. Since the vendor was not examined, who has given a statement that the property was sold by him to the accused for Rs.3,25,000/-. Hence, the difference amount was Rs.1,28,000/- has been admitted by the appellant. : 44 :
As regards the construction cost of Rs.2,54,871 for First Floor during 1992-93, the contention of the accused that he was an Engineer and had spent only Rs.2,00,000/- was accepted by the Court. More so, since the valuator was not examined by the prosecution to prove Ex.P.71. A deduction of Rs.54,871/- was given by Court in view of the documents at Ex.D.8 & Ex.D9 produced by the Accused to show that he had purchased the wood material. The same has been admitted by the appellant.
As regards the Sale Consideration of Site no. 468 A - Rs.1,80,000/- , the contention of the accused was that his father- in-law had provided Rs.1,80,000/- by way of a Demand Draft directly to the vendor. The Sub-Registrar, PW8, was examined and he has stated that the sale consideration was Rs.2,30,000/- as per the Sale Deed dated 09.03.93. No material was placed in this regard to show that the money came from the father-in-law of the accused. Even though it was claimed that the father-in-law was a granite merchant in Mumbai, his income-tax return or some document should have been produced in support of this contention. The accused has set up several persons to prove that : 45 : he has received amounts and he has not paid such huge amounts to any one, thereby creating doubt about the genuineness of the transactions.
The appellant has contended that the sale consideration as per the Registered deed was Rs.1,80,000/-. As per the sale deed, the sale consideration was paid by S.P.Rathnakar, the father-in- law of the accused to the vendor directly by way of a banker's Cheque no.536655 dated 09.03.93.
It is contended that Ex.P.144, a Letter issued by the Manager, State Bank of Mysore supports the said transaction. In final Report, this transaction was admitted and Rs.1,80,000/- was taken towards the known sources of income of the accused.
Neither the statement of the seller Dasrath Raj was produced along with the charge sheet nor was he examined before the trial court to substantiate the sale consideration as Rs.2,30,000/- instead of Rs.1,80,000/- or to substantiate as to who had paid the sale consideration.
It is seen that PW-2, has stated that during the investigation, he had examined S P.Ratnakar and other witnesses, : 46 : but their statements were not found in the charge sheet. PW-2 has relied upon a case diary to support his statement. PW-2 has further admitted that during investigation, he had found that the father-in-law of the accused, S.P.Rathnakar had issued a Banker's cheque in favour of the seller of the house site at Siddarathanagar, Mysore. PW-17 has also admitted that he had found during the course of the investigation that the father-in-law of the accused had issued a banker's cheque to the seller. PW-18 has admitted that the previous Investigation Officer, PW-2 had recorded the statements of the in-laws of the accused on 16.10.1996 but the same were not found in the Charge Sheet, hence the trial court had overlooked these circumstances while considering this controversial item.
As regards the Sale consideration in respect of Sy.No.135, measuring 8 Acres, Sangogi Village - Rs.63,000/-, the mother of the accused was said to have purchased the property from out of her savings from her husband's agricultural income and she was also earning from the sale of eggs and had claimed to have earned some money from the lands in Sy.No.228 prior to 1994. This was : 47 : not accepted by the trial Court on the ground that there was no material. The trial Court has, however, not recorded any findings. That the explanation was denied and the property was tagged as being benami.
Even the Investigation Agency, in their final report, has not indicated that the amount was not paid by Smt. Shivabalavva Pujari, the mother of accused. The trial Court has not assigned any reasons to construe the same as benami property of the accused. The burden was on the prosecution to establish the benami transaction.
The vendors of the said land were examined as PW.14 and a witness to the sale deed, PW15 has admitted that the sale consideration in respect of Sy.No.135 measuring 8 Acres was paid and land was purchased by Shivaballava Pujari. The finding of the trial Court was thus erroneous.
As regards the Sale Consideration of the Yamaha motorcycle for a sum of Rs.35,225/-, the accused claimed to have sold the Yamaha motorcycle for Rs.32,000/-. This was not accepted since Ex.P.49 B extract from the RTO Office showed : 48 : that he was the owner and that Exhibit D.12 Delivery Note dated 02.11.1995 regarding the delivery of the vehicle to Babu could not be accepted. The delivery note for sale of this vehicle was seized by investigation officer and is part of the charge sheet.
The investigation agency has not recorded the statement of the buyer. Once the vehicle is sold, the purchaser will issue a delivery note and the onus is on him to get it registered in his name.
DW-4 had stated that he had purchased the motor cycle in 1993 and he has sold the same on 02.11.1995 to Mr. Babu for a sum of Rs.32,000/- and has produced the Delivery Note as Ex.D.12.
PW-18 has admitted that he and the other Investigation Officers have not discussed this transaction and the explanation of the accused. And without assigning any reasons, the investigation agency has rejected this income.
Therefore, the burden was on the prosecution to discredit this transaction. The trial Court has overlooked this aspect. : 49 :
As to the Value of Household Articles at No.815, Siddartha Layout, Mysore valued at Rs.2,10,078/-, the said house was raided and a mahazar was prepared in presence of the wife of the accused and other witnesses who have signed the mahazar. The accused had claimed the value of the said articles at Rs.1,91,942/-. The Court has rejected the claim of the accused.
The trial court has concluded that the valuation of the household articles was done in the presence of the wife of the accused and the Panchas and hence, the valuation cannot be discarded.
It is seen that PW.2 has merely drawn up an inventory, specifying rates of the articles. After that, the accused was summoned to submit his explanation and rates of the articles. Once the accused submits his explanation, the investigation agency should investigate and submit its explanation either accepting or denying the same. In this regard, PW.18 in his deposition has admitted the omission.
It is not the case of the Investigation Agency itself that the articles were valued as stated by the wife of the accused. : 50 :
The investigation agency in the final report has not specifically stated about the acceptance or denial of the value of the articles as found in the statement. The appellant, therefore, is entitled to a reduction of Rs.18,136/- towards the household articles.
As regards the Gold and Silver Articles: The accused had claimed that he had received gold ornaments for himself, his wife and his children on various occasions as per the customary practices. The gold ornaments it was claimed included some items belonging to his mother as well. Bharati Rathnakar (the younger sister of wife of the Accused) has given statements, which was marked as Ex.D.13 and Ex.D.14, that she came to Mysore to purchase the ornaments and left the same with the wife of the accused and went to Mumbai. The accused has stated that at the time of marriage, he had received 93.5 grams of gold ornaments as a gift, and his wife had received 338.5 grams of gold ornaments as a gift. And his mother had gifted 77 grams to his wife. Further, at the time of raid, his mother was with them and her 272 grams of gold ornaments were also seized and 47 : 51 : grams of gold ornaments of Bharathi Rathnakar was also seized. His children had received 147 grams of gold ornaments as gifts on various occasions, such as naming ceremony and birthdays. The Investigating Officer has valued the gold ornaments at Rs.2,79,250/-, but admitted the omissions regarding recording the statements of Ashok Prabhakar Sasthe. The accused has admitted that he has not declared the above in his APR. Further, the accused has not examined Bharati Rathnakar regarding 47 grams of gold ornaments. It is to be noted that Exhibits D.13 and D.14 are just prior to the date of the raid (08.11.1995) and are dated 17.10.1995. The reason for keeping these gold ornaments with the wife of the accused wife is not explained.
The contentions of the accused in this regard cannot be accepted since a huge amount of the gold ornaments are not given in the normal practice of marriage and other customs. Further, Bharathi Ratnakar has not been examined by the accused and it is not his case that she was residing in his house at the time of raid. : 52 :
It is to be noted that as per the Charge sheet, 455.30 grams of gold ornaments and 1930 grams of silver articles were found at the time of raid. The value of gold was assessed at Rs.2,25,300/- and Silver was assessed at Rs.10,990/-. In the Bank Locker, 504.30 grams of gold ornaments and 110 grams of silver articles were found. The value of Gold ornaments was assessed at Rs.2,27,385 and Silver was assessed at Rs.600/-. Totally, 959.60 gms. of gold ornaments of Rs.4,52,685 and silver articles of Rs.10,990/- was in their custody. The Investigating Officer has given credit to the gold ornaments of the wife at the time of marriage to the extent of Rs.1,22,450/- and further amount of Rs.50,985/- was also not taken into account. Hence, after deducting an amount of Rs.1,73,435/- only an amount of Rs.2,79,250/- is taken into account as the assets of the accused.
The accused has sought to explain the inheritance of gold by him and his wife during the marriage and other occasions. And also about the gold articles received as gift by the relatives at the time of marriage and other occasions.
: 53 :
It is seen that PW.2 had recorded the statement of the mother of the accused. Further, he has admitted that he has recorded the statements of the father-in-law of the accused, the mother-in-law, sister-in-law of the accused and other gold merchants at Bombay, but those statements are not part of the Charge Sheet.
PW.2 has admitted that the mother of the accused and his in-laws had gifted gold articles at the time of the marriage of the accused. PW.2 has further admitted that MO.3 and MO.12, totally, weighing 47 grams belonged to Bharati Rathnakar. The bills of which was submitted along with the statement. PW2 had admitted this contention. PW.2 has further admitted that he could not say which were the gold articles gifted by accused's father-in- law as the statement of the accused's father in law was missing in the file.
It is seen that PW.17, who was the author of final report has accepted that he had not discussed anything about statement of the father-in-law of the accused with regard to gold. PW18 has admitted that his predecessor, PW2 has recorded the statement of : 54 : accused's father-in-law on 16.10.1996 and neither PW17 nor he has discussed anything about gifted gold articles and also had not assigned any reasons for doing the same. Rest of the gold articles were considered as assets of the accused without any reasons for the finding.
The admitted suppression of material documents and statement of the witnesses is fatal to the prosecution case, in this regard.
The burden was on prosecution to prove the allegation beyond reasonable doubt and hence the finding cannot be sustained.
As regards the Household Expenses, it is seen that according to PW2, the value of Rs.59,370/- arrived at by the appellant was not acceptable.
However, staple food products, as claimed by the accused were agricultural produce from various agricultural land cultivated during the check period. The Statistical department report though furnished, no witness was examined to establish the report. Mere furnishing of report and marking it through some other witness, : 55 : who was not the author, merely amounts to presentation but not proof. There was no occasion to cross examine the Report Provider to dispute the correctness of the report. PW.17 and PW.18 have admitted that they have not discussed anything pertaining to the information provided by the accused. The investigation agency has already placed expenditure pertaining to durable goods, fuel and lighting, clothing and footwear, rents and taxes under a separate heading. Therefore, these headings must be deleted from the specification in the report.
The expenditure towards pulses and grams must be reduced in consonance with the agricultural produce generated in the agricultural lands of the accused.
The report does not specify as to what prompted the author to conclude that the accused can be categorized and classified under the class bearing expenditure of Rs.300 to Rs.400.
As regards the motorcycle fuel and expenses, it was alleged that the vehicle maintenance included fuel and repairs for 2 years and the amount of Rs.500/- as claimed by the appellant was not : 56 : tenable. Admittedly, the vehicle was with the accused from 26.08.1995 to 20.10.1995.
The Investigation agency has assumed the expenditure without any reports. No meter reading was specified to conclude the expenditure. No person was examined to ascertain the quantum of expenditure including the purchaser. No document was produced to establish the expenditure. No reasons were specified in the final report for concluding this expenditure.
The trial Court could not have evaluated and concluded the correctness of the finding submitted by the investigation agency and could not have come to a conclusion. The burden was on prosecution to prove their contention beyond reasonable doubt. Hence, the finding is not substantiated.
The fuel expenses of the Tata Estate Car - Diesel at Rs.14,000/- is concerned, it was alleged that no document was produced for having given the vehicle on hire purchase. The information relating to this item of expenditure was obtained from Prerana Motors and no report was submitted to establish this expenditure.
: 57 :
In the schedule along with the document, it was shown that the vehicle was given on hire purchase to Shivangouda Siddalingappagouda Patil, DW-3.
PW-2 has admitted the transaction and of recording the statement of DW3. That statement is not part of the charge sheet. No reason was assigned for excluding that from the charge sheet. PW-17 does not discuss anything about this matter in the final report. There is a mere furnishing of a statement dated 07- 08-1997, which is not substantiated by a case dairy. No reasons are stated as to why the statement recorded by earlier Investigation Officer, PW.2 was suppressed.
It is seen that the prosecution did not examine Shivana Gouda Siddalingappa Gouda Patil and therefore, has not proved its contention. Instead, the defence has examined this witness. Hence, the finding in this regard cannot be sustained.
As regards the maintenance expenses of Rs.7,287/- of the Tata Estate Car is concerned, it was alleged that no evidence was produced to support that the service was done by DW3. DW3 in his evidence does not mention anything about incurring this : 58 : specific item of expense though he has stated that he had carried out the repairs and maintenance after he purchased the vehicle.
The evidence of DW.3 and Ex.D5 are not related, since from 26.08.1995 to 20.10.1995, the vehicle was with the accused and the raid was on 08.11.1995.
It is seen that the hire purchaser, Shivanagowda Patil, PW3 has admitted that he had left the vehicle with M/s Prerana motors and he had incurred the expenditure on repairs. PW2, the Investigation officer has admitted the above transaction. The prosecution has not examined any person to prove that the amount was paid by the accused. Instead, the defence has led evidence to establish the said contention. Hence, the finding in this regard cannot be sustained.
As regards the Income Tax paid by the wife of the accused in a sum of Rs.11,069/-, is concerned, it is alleged that even if the income-tax is paid by the wife, is accepted, it would not be an item of expense and has to be treated as such.
: 59 :
It is seen that the accused has not disputed the income tax paid, but the prosecution has taken into consideration only the tax paid, but has not accounted the income for which the tax paid. Hence, this finding is erroneous.
As regards the Lodging Expenses of Rs.25,386/-, is concerned, it is alleged that bills from the lodges were produced, which showed that they were in the name of the accused and no evidence was produced by the accused to show that he had incurred only an actual expense of Rs.9,000/-, was his statement that the friends of the accused on many occasions used to pay the bill of the lodges in which they used to stay, though booked in the name of accused.
This, the Investigation Officer, in his report, has admitted, namely, that on many occasions, the brother and many other friends were also staying. Even the bills furnished by prosecution has the names of different persons. None of them were examined in order to discredit this defence. Neither the lodge owner nor the staff were examined to confirm as to who had made the payment. Hence, the finding to the contrary is erroneous. : 60 :
In so far as the land bearing Sy.No.228, measuring 3 acres 11 guntas at Hiremasali village, Indi Taluk is concerned, it is the case of the prosecution that it was the ancestral property of the accused and acquired at a partition with his brother. The brother had retained house No.718 in Sy.No.228 and the accused had got the land. That the accused claimed that he earned an income of Rs.4,75,000/- from this land after the expenses, but has not placed any material before the Court. The accused has also not furnished year-wise details for the same.
However, the report of the Assistant Agricultural Director would show that the total income is Rs.4,12,540/-, expenses are Rs.67,300/- and the net income is Rs.3,45,240/-. In this report, the AAD has taken year-wise figures right from April 1985 till 1996.
It is the contention of the prosecution that according to the accused, the land has a natural source of water and is not dependent on rain. However, in the cross-examination, he has admitted that it is not irrigated land. So also, the Secretary, Gram Panchayath has stated that the land is dependent on the Monsoons. : 61 :
The Investigating Officer has taken the income as Rs.2,66,520/- instead of Rs.3,45,240/- as per the report.
It is seen that the bills from V.B.Patil Lingadalli of Bijapur are not on record. However, Exhibits D.16 to D.20 are the bills from V.B.Patil Lingadalli and are not proved, since the authors are not examined by the accused. Hence, the report of the AAD was accepted by the Court below and the amount of Rs.2,66,520/- as per the Investigating Officer was rejected. Hence, an amount of Rs.78,720/- was added by the Court to the income of the accused.
It is seen that the accused had an accrued income of Rs.4,75,000/-.
PW2 had admitted in his cross examination that during the investigation, he had collected evidence to indicate that land in Sy.No.228 measuring 3 Acres 11 guntas was the ancestral property of the accused and inherited by him through a partition deed, Exhibit D.7. And agricultural bills to the tune of Rs.3,06,500/- were produced along with the statement. : 62 :
PW.2 in his examination-in-chief has mentioned the report, dated 13.03.1996, obtained from the Assistant Agriculture Director, Indi Taluk, which is marked as Ex.P.27. According to this report, the net agricultural income amounted to Rs.3,45,240/-.
PW.17 has admitted that he had not examined the Agriculture Director who had furnished a report, Ex.P.27. And further had admitted that he had examined one V.B. Patil (to whom the accused is said to have sold the agricultural produce). But in the final report, he has neither discussed about having examined V.B.Patil nor about the bills produced by the accused along with the schedule statement.
PW.18 has admitted that following witnesses have confirmed the fact that the appellant was in possession of land in Sy.No.228.
Byrappa Chandrappa Doddamani, CW.47 Ramesh Shivappa Sanadi, CW.49.
Husnappa Marallappa Sanadi, CW.65 and Chandrappa Jattappa Poojari, CW. 68 : 63 : He has further admitted that the previous Investigating Officer has not examined the brother of the accused and also has admitted that the accused had sold the agricultural produce to V.B.Patil. He has not come to any conclusion in the final report with regard to the income from this landed property and about the bills produced by the appellant.
The report is merely submitted and marked in the Court without any standard of proof. The author of the report was not examined to establish the Report. There was no occasion for the accused to cross-examine the author to discredit the contents of the report.
The report does not satisfy the essential requirements such as soil condition, water source, climatic condition, method of cropping, which are essential to ascertain the yield that can be generated in the land. The report does not even specify on what source the yield and expenditure are concluded by the author. The source from which rates of individual crops were taken are also not provided.
: 64 :
The bills submitted along with the statement, which were marked as Exs.D.16 to D.20 were suppressed and no one was examined in support of the same.
Thus, the net income of Rs.4,75,000/- must be considered as the income generated from land in Sy.no.228. The trial Court's finding to the contrary is not sustainable.
Insofar as the land bearing Sy.no.568/2A & 2B at Mahalbagayth village, Bijapur is concerned, the investigating Officer has taken the income of Rs.1,23,000/- in lieu of Rs.5,52,000/-, relying on the Report dated 15.12.1995. However, PW2 has stated that he has received a report dated 15.05.1996, which showed an income of Rs.4,75,000/- and the said report is not furnished along with the Charge sheet. It is contended that the Report dated 15.01.1995 is based on the Pahanis and since the lands were purchased only on 28.03.1994, it is contended, the amount of Rs.1,23,000/- is correct. Further, the bills pertaining to Shapislal Biradchand, Bijapur were not considered and no reasons are assigned. However, the defence has not examined any witnesses in support of the bills and the amounts therein. In : 65 : addition to the same, there is nothing to show that these bills amounting to Rs.3,93,395/- are in relation to these lands only.
It is noticed that in the cross examination of PW.2, he has stated that during the raid on 08.11.1995, bills to the tune of Rs.3,93,395/- were found and hence a request was made to give a proper report and the said bills were also furnished to the Assistant Agricultural Director on 18.01.1996 and on the basis of which, a report dated 16.05.1996 was obtained which showed an income of Rs.4,75,000/-. The trial Court has considered the fact that the lands were purchased only on 28.03.1994 in the name of the wife of the accused and within a gap of 19 months, it is not possible to believe that an amount of Rs.5,52,000/- could be earned by purchasing the said lands at Rs.63,000/- and Rs.76,000/- only. The claim of Rs.5,52,000/-, it was alleged, was exorbitant.
It is seen, PW.2 has deposed in his examination-in-chief that he had received the Agricultural Report from the Agriculture Director, Bijapur Taluk on 16.05.1996. According to this report, the agricultural income from this land amounted to Rs.4,75,000/-. : 66 :
PW.2 has admitted that the said report is not found in the charge sheet. PW.2 has admitted that at the time of seizure of the house of accused, 5 bills amounting to Rs.3,93,395/- were found.
PW.17 had admitted that at the time of seizure of house of the accused, the bills for selling the agriculture produce were found as per Sl.Nos.31 and 32 and have not examined the person who has purchased the same. PW.17 has further admitted that his predecessor has mentioned in the CD that he has obtained Agriculture Report with regard to Sy.No. 568 2A & 2B amounting to Rs.4,75,400/- and also admitted that he has considered only the first Report i.e., on 15.12.1995 and has not discussed about the reports in his final report.
PW.18 has admitted that the bills issued by Sha Kushalal Biradhichand, Bijapur pertaining to sale of agricultural produce grown in Survey No.568/2A and 2B were seized at the time of conducting the raid. After perusing the file, he has admitted that such bills are not submitted to Court along with the seizure Mahazar.
: 67 :
Hence, the suppression of material facts and documents throw doubt on the prosecution version as they have failed to conduct proper investigation. The trial Court's finding in this regard is, hence, not sustainable.
Insofar as land bearing Sy.no.135, at Sangogi village, Bijapur is concerned, it was alleged that this property was purchased by the accused and the Investigating Officer has not stated anything about this. It is contended that according to the accused, CWs.52 and 73 were not examined in relation to the standing crops. An income of Rs.75,000/- towards the standing crops ought to have been considered. However, there is nothing in the sale deed dated 24.08.1995 to show that the land was sold along with the standing crop and there is nothing to indicate the value of standing crop. No material was placed by the accused to show the sale of agricultural produce at Rs.75,000/-.
As per the Investigating Officer, a report dated 13.05.1996 along with a covering letter dated 25.06.1996 was obtained which : 68 : showed the income to be Rs.1,26,640/-. However, the said Report is not placed before the Court.
It is contended that the purchase consideration for the said lands measuring 9 acres is only Rs.72,000/- and hence the existence of standing crops worth of Rs.75,000/- cannot be accepted. Even otherwise, if standing crops of the value of Rs.75,000/- existed, then the vendor would not sell the lands for only Rs.72,000/-, which is unexplained.
In this regard, PW2 had obtained an Agriculture Report dated 13.05.1996 from the Agriculture Director, Indi Taluk and he had received the same on 25.06.1996. According to this Report, the agricultural income from the land in this survey number is Rs.1,26,640/- (including 9 acre of land belonging to the mother of the accused).
PW.2 has admitted the fact that the said report is not part of the charge sheet. PW.17 has admitted the fact that the report obtained by PW.2 is not found in the charge sheet and in the final report, the income from this land is not considered. PW.18 has admitted the fact that the accused in his statement has stated : 69 : that there were standing crops of groundnut, Jowar, etc., at the time of purchase of the land. He has further admitted that the previous Investigating Officer, who has examined the seller of this land has not elicited anything about standing crops and there is no finding about the standing crops in the final report.
PW.14 (Kallappa Prachandappa Patil, one of the seller) has admitted in cross-examination that at the time of selling of the land, there were standing crops.
The above aspects have been overlooked by the trial Court and hence its findings cannot be sustained.
According to the accused, his wife had received Rs.80,000/- as Stridhanan and PW.2 has admitted this income based on the statements of the in-laws of the accused. However, it was the case of the prosecution that it could not be accepted since there was no material evidence placed by the accused regarding Stridhana. Even though, DW4 has stated so, in his evidence, it is dismissed as a self-serving claim. Since the onus was on him to prove the same.
: 70 :
PW.2 has further admitted that he had examined the father- in-law of the accused. He has further admitted that the father-in- law of the accused has stated that he had given Rs.80,000.00 at the time of purchase of house No.715.
PW-18, the subsequent investigating officer has also admitted that PW-2 had taken the statement of the father-in-law and mother-in-law of the accused on 16-10-1996. He has further admitted that the statement of the in-laws of the accused are not part of the charge sheet. This lapse has been overlooked by the trial Court and hence the finding is this regard is bad in law.
Insofar as the loan amount of Rs.1.75 lakhs from one Ramakanth Desai(DW-1) is concerned, it was alleged that the accused had taken the loan for the purchase of lands bearing Sy.No.568/2A and 2B. DW.1 has admitted that he did not have any income apart from agriculture and hence it is not believable that he gave the amount of Rs.1,75,000/- as loan. Further, that he did not have any documents to show his agricultural income for the year 1994 to the tune of Rs.10 to 12 lakhs, as claimed by him. There is no endorsement regarding repayment of the loan and : 71 : therefore, this document Exhibit D.3 and the evidence of DW.1 was claimed as not reliable. That these lands were purchased in the name of the wife for Rs.1,39,000/- (Rs.63,000 + Rs.76,000). The need for obtaining loan of Rs.1,75,000/- is not explained for the purpose of buying properties of Rs.1,39,000/-.
It is seen that PW-2 has deposed that the accused had borrowed from Basavaraj Ramakanth Desai, DW.1, a sum of Rs.1,75,000.00 on 18.03.1994, for the purchase of agricultural land bearing Sy.No.568, as per the statement made by DW.1 before him on 09.09.1996.
PW.17 has admitted that he has not discussed the explanation of the accused in the statement and statement of DW1 in the final report with regard to this loan transaction.
PW.18 has admitted that the previous investigating officer had examined Basavaraj Ramkanth Desai and he has further stated that he has not discussed about the statement in his final report.
Though this witness was a prosecution witness, the prosecution did not examine this witness to discredit the : 72 : transaction. The defence examined this witness as DW.1 and got marked the document as Exhibit D.3. This aspect of the matter has been overlooked by the trial Court and thus has arrived at an incomplete finding.
It is the case of the prosecution that the accused had taken a loan of Rs.1,57,000/- from Sri Walligowdar (DW2) on 18.12.1992 as per Ex.D.4 for the purpose of construction of a house. There is no endorsement on Ex.D.4 regarding repayment and no material was produced regarding repayment of the loan and therefore, this loan transaction is disbelieved.
In this regard, S.T. Walligowdar was examined as DW.2 who has admitted that he is a friend of the accused and he has given a sum of Rs.1,57,000/- for the purpose of purchase of a house at Mysore.
DW.2 has further explained his source of income and has stated that he is the owner of 25 acres of agricultural land growing sugar cane. PW.2 has admitted that he had examined Walligowdar, but that statement is not filed along with charge : 73 : sheet. The statement found in the charge sheet is said to be made by the subsequent investigating officer, PW-17.
PW-17 has admitted that he has not discussed with regard to this loan transaction and the documents submitted by the accused in his final report to the Court.
PW-18 has admitted that the previous Investigating Officer, PW-2 had recorded the statement of DW-2 on 09-09-1996 and that statement has not been produced along with the charge sheet.
It is contended that though this witness was a prosecution witness, the prosecution did not examine this witness to discredit the transaction. The defence examined this witness as DW.1 and got marked the document as Exhibit D.3. This aspect has been overlooked by the trial Court.
It was alleged that the accused had taken a loan of Rs.1,00,000/- from Shri Siddalingappa Patil for letting the TATA Estate on hire purchase as per Exhibit D.5 and that this amount was repaid in the year 1998-99.
It is contended that as per Ex.D.5 dated 20.10.1995, there is no endorsement of repayment of the loan amount of Rs.1,00,000/- : 74 : in the year 1998-99, as contended by the accused and DW.3 in his evidence. If according to Sri Siddalingappa Patil, who is a resident of Kannur of Jamkhandi Taluk, he had taken the vehicle on hire purchase on 20.10.1995 by payment of Rs.1,00,000/-, the vehicle being seized from M/s Prerana Motors in Mysore is inexplicable. Hence, it was urged that the evidence of DW.3 is not at all reliable and this defense set up by the accused could not be accepted, more so, in the absence of any material to prove that DW.3 had sufficient source to pay the amount of Rs.1,00,000/-.
Siddalingappa Gowda Shivannagouda Patil, has admitted that he had lent Rs.1,00,000/- under a hire purchase agreement and had taken possession of TATA Estate Car. Exhibit D.5 has been marked with regard to this transaction.
It is seen that PW.2 has admitted that he had recorded the statement on 9.9.1996 of Siddalingappa Gowda Shivannagouda Patil. PW.2 has further admitted that DW.3 had deposed before him that he had taken possession of the vehicle by lending a sum of Rs.1,00,000/- on 20.10.1995.
: 75 :
PW.17 has stated that he is not in a position to state whether the statement of Siddalingappa Gowda Shivannagouda Patil was recorded on 7.8.1997 as the case diary was misplaced. This lapse has been condoned by the trial Court in accepting the case of the prosecution and hence the finding of the trial Court is vitiated.
It was alleged that House No.815 was purchased by his mother on 22.12.1994 for Rs.6,90,000/- including stamp duty and registration fees. For the purchase of this house property, the sister of the accused had sold gold worth Rs.2,00,000/- on 18.11.1994 and 28.11.1994 to Ashok Prabhakar Saste at Bombay.
It is contended that according to the accused, his sister had provided Rs.1,00,000/- in addition to the gold ornaments for the purchase of the property and his mother had obtained loan of Rs.2,50,000/- from Sri Shivannagowda Patil on 19.12.1994 as per Exhibit D.1.
It is seen that neither the investigation report nor the trial Court have furnished any reason or findings for construing this as the property of the accused.
: 76 :
It is seen that this property was brought by the mother of the accused with her own sources and borrowings and the accused has not contributed any sum from his income to purchase this property. The sale consideration was Rs.6,90,000/-, but there was no basis to consider the sale consideration value as Rs.9,50,000/-.
PW.2 has admitted that he had recorded the statements of the following persons at Mumbai:
Smt. Sharanavva, sister of accused Shyam L Raheja Arjun Jigajinagi Shyamala Siddappa Hosalli Shanthabhai Aiyappa Hamble, Yamunavva and Renuka Lakshman Herodagi They are said to have told PW.2 that accused's mother had borrowed loan from Sharanavva. Sharanavva had sold her jewels through Arjun Jigajinagi and Shyam L Raheja.
If a benami transaction is alleged, it was the burden of the prosecution to prove the same beyond reasonable doubt. Nothing : 77 : was brought on record. Without the prosecution establishing its contention, the burden cannot be shifted. None of the documents or witnesses indicate that this property was purchased benami by the accused.
The statements recorded by PW.2 has not been taken into consideration by the subsequent investigating officers (PW.17 and 18) and the statements have been discarded without assigning any reason and a sum of Rs.10,40,180/- has been imposed on the accused without any findings.
The seller B.V.Acharaya was not examined before the trial court to dispute the sale deed.
It is thus contended that the statement of the material witnesses and the documents further established that fair investigation was not conducted.
In the light of the infirmities noticed above in the findings of the trial Court, it cannot be said that the prosecution had established its case beyond all reasonable doubt and the trial Court was, hence, not justified in arriving at its findings against the appellant and convicting him.: 78 :
Hence, the appeal is allowed. The judgment of the Court below is set aside and the accused is acquitted. The bail bond stands cancelled and the fine amount, if any, paid shall be refunded. Any movable property, documents etc. seized, shall be returned to the appellant.
Sd/-
JUDGE nv*