Karnataka High Court
Sri. N Narasimha Raju vs The State Of Karnataka on 10 October, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1957/2022
BETWEEN :
--------------
Sri N Narasimha Raju
Son of late Sri M.N.Narayanappa
Aged about 57 years
Executive Engineer
Residing at Maddayya Nivasa
Maddayya Road
Devanahalli Town
Bengaluru Rural District
Bangalore - 562 110.
... APPELLANT
(By Sri S.V.Giridhar, Advocate)
AND :
-------
The State of Karnataka
Represented by the
Deputy Superintendent of Police
Karnataka Lokayukta
Mangaluru,
Dakshina Kannada District - 575 001.
... RESPONDENT
(By Sri Ashwin S Halady, Advocate)
2
This Criminal Appeal is filed under Section 374(2)
praying to set aside the judgment impugned dated 10.11.2022
passed by III Additional District and Sessions Judge and
Special Court for Trial of Cases relating to the Prevention of
Corruption Act, Dakshina Kannada, Mangaluru in Special Case
No.107/2014 convicting the appellant - accused for the
offence punishable under Section 13(1)(e) read with Section
13(2) of Prevention of Corruption Act, 1988.
This Criminal Appeal having been heard and reserved for
judgment this day, SHIVASHANKAR AMARANNAVAR J,
delivered the following;
JUDGMENT
This appeal is filed against the judgment of conviction and order of sentence dated 10.11.2022 passed in Spl.C. No. 107/2014 by the III Additional District and Sessions Judge and Special Court for trial of cases relating to Prevention of Corruption Act, Dakshina Kannada, Mangaluru, convicting the appellant - accused for the offence under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 sentencing to undergo simple imprisonment for a period of for a period of three years six months and to pay fine of Rs.25,00,000/- 3 (Rupees Twenty Five Lakhs only) and in default to undergo further simple imprisonment for a period of six months.
2. Factual matrix of the case is that the Police Inspector, Karnataka Lokayuktha, Mangaluru registered case in Crime No. 9/2009 for offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the P.C. Act) against the appellant - accused and two other accused on 08.09.2009. P.W.7 - Police Inspector searched the house of the appellant - accused bearing flat No. 104 in Deepa Apartment, Mangaluru and collected many documents and available records. Thereafter, P.W.1 received information that the appellant - accused was appointed as Assistant Executive Engineer (AEE) in Public Works Department, State of Karnataka, on 03.07.1995 and later on he was promoted as Executive Engineer (EE). He worked in Panchayath Raj Department at Mangaluru and transferred to Tumakuru division. Therefore, he was a 4 public servant from 03.07.1995 to 08.09.2009. Appellant - accused acquired assets disproportionate to his known source of income. Therefore, he prepared source report on 19.03.2010 and sent to the Superintendent of Police, Karnataka Lokayuktha, Mangaluru. The Superintendent of Police, Karnataka Lokayuktha, Mangaluru passed order under Section 17 of the PC Act and authorized P.W.1 - Deputy Superintendent of Police, Mangaluru, to investigate the matter. Accordingly, P.W.1 on 24.03.2010 registered FIR against the appellant - accused for offence under Section 13(1)(e) read with Section 13(2) of the PC Act in crime No. 5/2010 and launched investigation. P.W.1 collected search panchanama in crime No. 9/2009 and other materials and partly investigated the matter. In view of transfer of P.W.1, P.W.10 as per authorization of the Superintendent of Police conducted further investigation. P.W.10 during his investigation found that the appellant - accused worked as Assistant Executive Engineer, then he 5 was promoted as Executive Engineer in P.W.D. from 03.07.1995 to 08.09.2009 (check period). He further found that the appellant - accused during the check period received income of Rs.63,25,565.95 (rounded off to Rs.63,25,565/-) from his known source. He further found that the appellant - accused was possessing assets worth Rs.48,18,161.73 (rounded off to Rs.48,18,161/-) and the expenses of the appellant - accused during the check period was Rs.32,16,491.51/- (rounded off to Rs.32,16,491/-). There is disproportionate assets of Rs.17,09,087.29/- (rounded off to Rs.17,09.087/-) found in the possession of appellant - accused. Therefore, P.W.10 - Investigating Officer alleged that the appellant - accused being public servant is in possession or has at any time during the period of his office, been in possession for which the appellant - accused cannot satisfactory accounted, of pecuniary resources or proportion disproportionate to his known source of income and therefore, the appellant - 6 accused has committed criminal misconduct and thereby committed offence punishable under Section 13(1)(e) read with Section 13(2) of the PC Act. Charge sheet has been filed after getting the previous sanction under Section 19 of the PC Act. The Special Court framed charges against the appellant - accused for offence punishable under Section1 3(1)(e) read with Section 13(2) of the PC Act.
3. The prosecution examined 14 witnesses as P.W.1 to P.W.14 and got marked documents Ex.P.1 to Ex.P.95. The appellant - accused was examined under Section 313 of Cr.P.C. The appellant - accused examined himself as D.W.1 and examined two more witnesses as D.W.2 and D.W.3 and got marked documents at Ex.D.1 to Ex.D.44 in support of his defence. After hearing arguments on both sides and on perusal of the written arguments, the Special Court formulated points for consideration and convicted the appellant - accused for the offence under Section 13(1)(e) read with Section 13(2) of the PC Act. Said judgment of 7 conviction and order of sentence has been challenged in this appeal.
4. Heard arguments of learned counsel appearing for appellant - accused and learned Spl.P.P. appearing for respondent.
5. Learned counsel for appellant - accused would contend that the appellant - accused has purchased item No. 3 site situated in Vijayanagar, Bengaluru from Bapuji House Building Cooperative Society under sale deed - Ex.P.6 for consideration of Rs.3,70,000 and he had paid advance of Rs.50,000/- on 30.01.1993 under receipt - Ex.D.15 dated 30.01.1993 and as on that day he was not in service and he has been appointed as Assistant Executive Engineer on 03.07.1995. The appellant - accused was under training between 03.07.1995 to 02.07.1997 and he has received stipend of Rs.1,44,190/- and after training from 02.07.1997 to 17.11.1997 he was waiting for posting. The appellant - accused had paid Rs.1,00,000/- on 8 15.11.1996, Rs.50,000/- on 18.03.1997, Rs.1,00,000/- on 21.02.1997 and Rs.60,000/- on 25.04.1998 (Ex.D.5 consisting of five receipts). The appellant - accused was not having posting till 17.11.1997. Therefore, the payments made by him prior to that date has to be excluded. Therefore, in total sum of Rs.3,70,000/-, Rs.3,10,000/- has to be excluded and only Rs.60,000/- which is paid on 25.04.1998 after his posting has to be taken into consideration. The appellant - accused has declared cash of Rs.50,000/- in his annual property returns and the Investigating Officer has not taken into consideration said cash in hand by this appellant - accused as on the date of entry into service.
6. He further contended that as per Rule 23 of the Karnataka Civil Services Conduct Rules, 1966, there is no need to declare the house hold articles and therefore, value of clothes in item No. 33 and house hold articles in item No. 35 are to be excluded. The appellant - accused in his 9 annual property returns submitted immediately after appointment has declared the furniture of value of Rs.45,000/- (Ex.P.27) and the marriage of the appellant - accused has taken place on 09.11.1997 and as a customary his wife brought furniture and other articles and his wife has filed declaration for the period from 01.04.1997 to 31.03.1998 (Ex.P.94) wherein it is declared that she brought furniture of value of Rs.15,000/-. Therefore, the appellant - accused had furniture of value of Rs.45,000/- as per his first annual property returns and his wife declared furniture of value of Rs.15,000/- and therefore, the total furniture in his house was worth Rs.60,000/- and therefore, the furniture value of Rs.52,300/- shown in item No. 32 is to be excluded. The valuation of item Nos. 31 to 35 are given by P.W.2 who is a witness to mahazar and who was working as a Typist in Commercial Tax Office and P.W.7 who is the Police Inspector who conducted search and they are not experts, but, they have given valuation and the trial 10 Court has not accepted the said valuation and reduced the same by 30%. The trial Court ought to have taken only value of item Nos. 31 and 34 and given deduction at the rate of 30% and ought to have excluded item Nos. 32, 33 and 35. The trial Court has to take the depreciated value of the articles mentioned in item Nos. 31 and 34.
7. He would contend that the visible and non-variable expenses arrived at Rs.6,57,917/- as per Ex.P.69 has not been proved as its author is not examined as he is reported dead and no other competent person has been examined to prove the contents of Ex.P.69. The trial Court erred in accepting Ex.P.69 which has been marked through P.W.10
- Investigating Officer stating that he knew the signature of the author of Ex.P.69 as they both worked in the same office placing reliance on the provisions of Section 67 of the Evidence Act. Even though signature stands proved by the evidence of P.W.10 but, the contents of Ex.P.69 are not proved by admissible evidence. The appellant - accused has 11 made statement regarding what are visible and non- variable expenses and in the absence of proof of Ex.P.69 the trial Court ought to have taken the said value as stated by the appellant - accused. The expenses at item Nos. 14 to 21 are separately taken which includes the school fees, gas cylinder expenses, fuel charges which were already included in Ex.P.69. He further contends that car has been purchased in the name of his wife on 06.03.2004 and it is second purchase and as per the B extract original purchase of the said car by the original owner was on 09.03.2001. What was the reading of the KMs of the said car as on the date of purchase, i.e., 06.03.2004 is not recorded and the Investigating Officer has taken the KMs reading as 21300 and there is no basis for the same. P.W.13 - ARTO gave report as per Ex.P.67 taking into consideration 21300 kms furnished by the Investigating Officer and by dividing the same by 67 months and taking into consideration the rate of petrol at the relevant month. Therefore, said report - 12 Ex.P.67 issued by P.W.13 cannot be relied on as there is no basis for coming to the conclusion that car has been used by the appellant - accused for traveling 21300 KMs.
8. He further contends that the expenditure at item No. 43 ought not to have been included in the maintenance amount since Ex.P.71 - lease agreement specifically contains a term that `rent includes maintenance'. The trial Court has ignored the same. The trial Court placed much reliance on Ex.P.17 - letter issued by the landlady - P.W.12 inspite of her admission in the cross-examination that rent includes maintenance. Therefore, the trial Court erred in taking into consideration Rs.38,000/- as expenditure which is said to have been paid towards maintenance.
9. He contends that item No. 3 of the income from salary for the period between 18.11.1997 to 10.06.1998 is taken at Rs.52,984/- as per Ex.P.13. The appellant - accused got annual increment arrears of Rs.1,538/- for the period between 18.04.1997 to 15.06.1998 and the same 13 has been mentioned in last pay certificate - Ex.D.16 and the trial Court has erred in not taking into consideration the said document stating that the original of last pay certificate will not be issued to the employee.
10. Learned counsel for the appellant - accused further contended that in item No. 6 of income from salary for the period from 16.10.2000 to 22.10.2002 a sum of Rs.1,82,002/- is taken as per Ex.P.31. At the relevant time the appellant - accused was working in SCST Corporation. The appellant - accused has also produced the salary details obtained by him from the SCST Corporation at Ex.D.7 and it discloses the total salary in a sum of Rs.1,86,882/- and the income taken by the Investigating Officer is short by Rs.4,880/-. Ex.D.7 discloses that the appellant - accused got arrears of Rs.14,938/- regarding the period between 16.10.2000 to 31.10.2002 but the trial Court has wrongly considered the said amount as pay for January, 2003. The appellant - accused was not working in 14 the said SCST Corporation during January, 2003. Salary which he received during January 2003 is shown in item No. 7 of his income. The trial Court did not rely on Ex.D.7 on the ground that its author is not examined.
11. The appellant - accused has received rental income from poultry between 07.02.2002 to 13.02.2004 in a sum of Rs.32,950/- as disclosed in item No. 12 of his income. One Kiran was a tenant of the said poultry farm and he has been examined by the appellant - accused as D.W.3. Said Kiran - D.W.3 had given his letter to the Investigating Officer as per Ex.P.38 wherein there is specific mention that he paid rent of Rs.7,765/- to the wife of the appellant - accused. In the said statement - Ex.P.38 Kiran has stated that he has produced balance sheet, profit and loss account, bank statement, I.T. acknowledgment and electricity bill but the Investigating Officer has not produced the same. The lease deed - Ex.P.94 also shows that rent is Rs.7,765/- per month. D.W.3 in his evidence has also 15 stated that he had paid rent of Rs.7,765/- per month. The Trial Court has erred in not taking into consideration said income of Rs.2,32,950/-.
12. He contends that the appellant - accused and his brother - Sri. Satish (D.W.2) sold item Nos. 5 and 6 property under sale deed Ex.P.35 dated 09.06.2006 for sale consideration of Rs.4,10,000/-. It is the contention of the appellant - accused that he has received entire sale consideration of Rs.4,10,000/- and he has shown the same in his IT return- Ex.D.42 and the other executant, namely, Sri. Satish (D.W.2) did not show the said income from sale proceeds in his IT returns - Ex.D.70. He contends that the appellant - accused has also shown that he sold the said property in his annual property returns as on 31.03.2008 that he sold for Rs.4,10,000/-. The trial Court hypothetically has taken a view that the appellant - accused has shown the entire sale consideration as his income in his IT returns in collusion with his brother D.W.2 - Sri. Satish so as to 16 show that he has funds to acquire another property and the said reasoning of the trial Court has no basis/evidence.
13. Learned counsel has argued that income taken in item No. 10 is from agriculture and horticulture and properties are the self-acquired properties of the appellant
- accused and they are based on the total realistic income which is half of the total net income as noted in Ex.P.58, Ex.P.59 and Ex.P.42. He argued that net income is income after deduction of all expenses and taking half of the net income is not proper. On perusal of Annexure-1 of Ex.P.42 it is clear that this total net income is after deduction of all expenses.
14. Learned counsel has referred to the definition of the expressions `deduction', `gross income', `net income' and `net profits' by referring to Blacks' Law Dictionary. The term TRI i.e., total realistic income is not defined anywhere. Even under the Income Tax Act net income is `income after deduction of expenses'. While considering the income from 17 agricultural land of wife of appellant - accused, as noted in Ex.P.46, there is no total net income or total realistic income and entire net income is taken into consideration. P.W.6 the author of Ex.P.46 and Ex.P.59 has not stated why this TRI which is half of TNI is taken into consideration. Said TRI which is based on circular dated 09.10.2009 is after the date of raid and therefore it is not applicable.
15. Father of the appellant - accused had a wife by name Smt. Sakamma and through her he had three sons and one daughter. After death of Smt. Sakamma father of appellant - accused married Smt. Narayanamma and through her he had four sons and four daughters. Three sons of Smt. Sakamma have got separated by executing registered release deed dated 11.08.1976 and the daughter of Smt. Sakamma is not a coparcener. Second son of Smt. Narayanamma has left the joint family by executing release deed Ex.D.6 on 22.04.1991. There are only three sons who are in coparcenary and therefore income is to be divided by 18 three. There was a partition between three remaining sons of Smt. Narayanamma on 06.09.2004 - Ex.P.65(a) and daughters of Smt. Narayanamma have signed as consenting witnesses. Therefore, income from agricultural lands has to be shared between three sons of Smt. Narayanamma including the appellant - accused. Even the said income from agricultural lands has been taken as half of the total net income and the trial Court has erred in dividing the said income among nine members of the family prior to the death of the mother and has divided the income by eight after the death of mother.
16. Learned counsel further contended that wife of the appellant - accused is an engineering graduate and she was taking tuition classes for school, college and engineering students and had claimed income of Rs.15,25,689.75. Income of the wife has been reflected in her income tax returns - Ex.D.23 to Ex.D.31. The trial Court erred in not taking into consideration the said income of the appellant - 19 accused only on the ground that only one computer was found at the time of raid. The trial Court erred in observing that no document is maintained with regard to income of his wife through said tuitions and no student is examined. He further contended that the appellant - accused had maintained nursery in the land situated at Hiriyur and claimed income of Rs.5,13,041/- which is at item No. 31. Said income is shown in the income tax returns of the appellant - accused as `individual' in Ex.D.36 and as Hindu Undivided Family in Ex.D.42 to Ex.D.44 and Ex.P.94. Even in his APR the appellant - accused has shown his income separately. The trial Court has not taken into consideration said income from nursery only on the ground that no document is maintained with regard to sale of saplings/plants in the said nursery. He further argued that judgment of the trial Court is perverse and prayed for setting aside the judgment and acquitting of the appellant - accused of the parties.
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17. Learned Spl.P.P. appearing for the respondent submits that the trial Court in paragraph No. 96 placed reliance on the decision of the Hon'ble Apex Court reported in 2017(0) Supreme (SC) 116 and held that `known source of income' must have source known to the prosecution on a thorough investigation of the case and it cannot be source known to the appellant - accused and the appellant - accused, to prove the other source of income which have not been taken into account are brought into evidence by the prosecution. He further argued that there is a burden on the appellant - accused to prove that horticulture and agricultural income received by him during the check period through cogent evidence. He contended that the appellant - accused has not provided the exact income received by him from horticulture and he has not adduced any expert evidence and therefore the Court cannot go beyond the income shown in Ex.P.58 and Ex.P.59 as observed by the trial Court. The appellant - accused has 21 not asked P.W.6 the author of Ex.P.58 and Ex.P.59 with regard to what is TRI when P.W.6 has stated that TRI is half of TNI. The trial Court has rightly held that the total net income includes cost of cultivation and therefore cost of cultivation to the extent of 50% would be deducted from TNI and the total realistic income will be ascertained and therefore the TRI is the real income received by the owner. The appellant - accused has not examined any expert in respect of horticultural income stated in Ex.P.58 and Ex.P.59 and not examined any witness to explain what is TRI and TNI shown in Ex.P.58 and Ex.P.59. Therefore, the reasoning of the trial Court with regard to item No. 10 of income is proper.
18. He contended that the appellant - accused who has been examined as P.W.1, in his cross-examination, has admitted that till death of his mother Smt. Narayanamma, himself, his brothers by name Sri. Satish and Sri. Narayana Swamy, his mother and his sister - Smt. Varalakshmi were 22 receiving the income from joint properties shown in Ex.P.59(a) and therefore, the trial Court has rightly taken the income of the appellant - accused from joint family properties is to the extent of 1/5th share only. Therefore, there are no grounds for setting the findings of the trial Court with regard to income in item No. 10, namely horticultural income of Rs.10,21,365/-, agricultural income of Rs.48,645/- and agricultural income of joint family of Rs.1,69,465/- and in all the total income received by the appellant - accused from the landed properties is Rs.12,39,475/-.
19. The trial Court did not take into consideration the income of the wife of appellant - accused stated to have received by conducting computer classes from 1997-98 to 2009-10 as stated in item No. 30 of the income on the ground that wife who is the best witness has not been examined; no infrastructure was found in the house of appellant - accused at the time of raid; students said to 23 have received tuition from the wife of appellant - accused have not been examined and the trial Court has not committed any error in holding so.
20. The appellant - accused claimed income from nursery business in a sum of Rs.5,13,041/- and the trial Court did not consider the said income on the ground that the appellant - accused who was a public servant is regulated by the Karnataka Civil Service (Conduct) Rules, 1966 and as per the mandate of Rule 16 the Government servant is totally barred from carrying on any trade or business during service and he has not maintained any accounts of nursery. On these grounds he submitted that the trial Court considering all these materials on record has rightly convicted the appellant - accused and there are no grounds to interfere with the findings of the trial Court.
21. Learned Senior counsel appearing for the appellant - accused in reply would submit that the trial Court has accepted the evidence of P.W.11 and report in 24 Ex.P.48 regarding agricultural income said to have been received by the appellant - accused in a sum of Rs.48,645/- wherein there is no deduction of the income and the trial Court has not applied the said yardstick to the other agricultural income. In Ex.P.42 net income is derived after deduction of the expenses and the said net income is taken as the total net income (TNI) and it is deducted by 50% stating that total realistic income is half of total net income and in that regard reasoning of the trial Court in paragraph No. 104 of the impugned judgment is that the total net income includes cost of cultivation and therefore 50% of cost of cultivation will be deducted from the total net income and total realistic income will be ascertained and total realistic income is real income received by the owner. The trial Court in paragraph No. 103 of the impugned judgment has observed that the prosecution and the defence have not asked P.W.6 why TNI has been divided into two parts while ascertaining TRI and inspite of 25 that in the absence of any material regarding why TRI is half of TNI the trial Court has presumed and assumed that 50% would be deducted towards cost of cultivation even though the TNI is calculated after deducting cost of cultivation as noted in Ex.P.42. The trial Court has accepted the income of the wife of the appellant - accused from land situated at Chintamani whish is shown in Ex.P.46 prepared by Senior Assistant, Horticultural Department, Chintamani and in that there is nothing like TRI and TNI and they are not applied. He contended that the marriage of the sister of appellant - accused by name Smt. Varalakshmi was conducted on 29.04.1996 and what P.W.1 - appellant - accused admitted in his cross-examination is that till her marriage he voluntarily shared her portion of income and that does not mean that she is having 1/5th share/right in the suit property/income from the property. He contended that as per the provisions of Section 120 of Evidence Act in criminal proceedings husband is competent to represent the 26 wife. Therefore, the observation of the trial Court that the wife of appellant - accused is not examined to prove the income of the wife from tuitions is not proper. He contends that as per Section 2 of the Karnataka Land Reforms Act the definition of agriculture includes horticulture and as per Section 81 of the Karnataka Land Reforms Act the explanation provided for the said section provides that agricultural purposes includes sericulture, fishery, poultry etc., and therefore, income from nursery is also agricultural income and therefore, nursery does not amount to any business which is prohibited under Rule 16 of the Karnataka Civil Service (Conduct) Rules. The notification relied upon by the horticulture department dated 09.10.2009 has been applied to arrive at total realistic income and the said notification is after the check period and there is no material to show that the said notification is to be applied retrospectively.
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22. Upon hearing arguments advanced by both the learned counsels, the grounds raised and on perusal of the impugned judgment the following point arise for my consideration.
"Whether the trial Court erred in convicting the appellant - accused for offence under Section 13(1)(e) read with Section 13(2) of PC Act?"
23. The Investigating Officer - P.W.10 in the charge sheet has shown that thirty five assets were held by the appellant - accused during the check period in Sl.Nos. 1 to
35. The table of assets prepared by the Investigating Officer - P.W.10 are as under:
ASSESTS Sl. Nature of asset Value of asset No.
1. Consideration paid for purchase Rs. 8,00,000.00 of site No.121/Khataha No.257/178/121 situated at Abbachikkanahalli in the name of wife of the accused.
2. Consideration paid for purchase Rs. 13,28,000.00 of site No.15 & 16/Khataha 28 No.48/2/68/1 situated at Bhatrahalli in the name of wife of the accused.
3. Consideration paid for purchase Rs. 3,70,000.00 of site No.125/ situated at Kempapura Agrahara, Chandra Layout, Bengaluru in his own name.
4. Cost of construction of house Rs. -
situated at Devanahalli.
5. Consideration paid for purchase Rs. 76,500.00 of land Sy.No.67/2 measuring 2.13 acres situated at Hunasehalli Village in the name of mother of the accused.
6. Consideration paid for purchase Rs. 73,500.00 of land bearing Sy.No.67/5 measuring 1.39 acres situated at Hunasehalli Village in the name of mother of the accused.
7. Consideration paid for purchase Rs. 4,80,000.00 of site in Khatha No.516/21/19/168 situated at Gollabana Halli in his own the name.
8. Consideration paid for purchase Rs. 48,000.00 of Land Sy.No.10/1E measuring 1 acre situated at Javanagondahalli in his own name.
9. Consideration paid for purchase Rs. 44,500.00 of Land Sy.No.10/1C1 measuring 37 guntas situated at Javanagondahalli in his own name.
10. Consideration paid for purchase Rs. 46,500.00 of Land Sy.No.10/1F measuring 1.20 acres situated at Javanagondahalli in his own 29 name.
11. Consideration paid for purchase Rs. 56,000.00 of Land Sy.No.10/1D measuring 1.32 acres situated at Javanagondahalli in his own name.
12. Consideration paid for purchase Rs. 2,73,000.00 of Land Sy.No.35 measuring 5.17 ¾ guntas situated at Guttahalli village in the name of his wife.
13. Bank balance of accused in SBI, Rs. 4,06,587.00 Mangaluru.
14. Bank balance of the wife of the Rs. 2,933.00 accused in Canara Bank, Devanahalli.
15. Bank balance of the wife of the Rs. 71,333.00 accused in Corporation Bank, Mangaluru.
16. Bank balance of accused in SBM, Rs. 2,872.95 Bengaluru
17. Bank balance of the wife of the Rs. 9,190.55 accused in Corporation Bank, Vijayanagara, Bengaluru.
18. Bank balance of the wife of the Rs. 63,719.24.00 accused in ICICI Bank, Mangaluru.
19. NSC purchased by the accused. Rs. 2,500.00
20. Bond value issued by HDFC Rs. 15,000.00 Mutual Fund in the name of Neha, daughter of accused.
21. Value of IDBI Plexy Bond in the Rs. 30,000.00 name of accused.
22. Deposit for domestic Gas Rs. 950.00 connection.
23. -do- Rs. 1,400.00
24. Rent paid by the accused in Rs. 45,000.00 respect of Flat No.104 of Deepa 30 Apartment.
25. Price of the Car purchased in the Rs. 1,28,000.00 name of accused.
26. - do - Rs. 1,10,000.00
27. Cash found at the time of Rs. 16,800-00 search.
28. Value of gold articles. -
29. Value of gold shown in receipt Rs. 43,850.00 issued by Davanam Jewellers Pvt. Ltd., Bengaluru.
30. Value of silver articles -
31. Value of electronic and electric Rs. 1,32,790.00 articles found in Flat No. 104.
32. Value of furnitures found in Flat Rs. 52,300.00 No.104.
33. Clothes/dresses found in Flat Rs. 13,000.00 No.104.
34. Value of exercise instruments Rs. 21,000.00 found in Flat No.104.
35. Value of household articles found Rs. 52,935.00 in Flat No.104.
Total Rs. 48,18,161.73 ITEM No. 3
24. Ex.P.6(a) is the certified copy of the sale deed dated 28.06.1999. Under this sale deed the appellant -
accused has purchased site described in item No.3 for total sale consideration amount of Rs.3,70,000/-. The appellant - accused has admitted the same. The appellant - accused has purchased the said site from Bapuji Co-operative 31 Housing Limited, Bengaluru. Ex.D.15 are 5 receipts issued by Bapuji Co-operative Housing Limited, Bengaluru dated 30.06.1993 for Rs.50,000/-, dated 15.11.1996 for Rs.1,00,000/-, dated 18.03.1997 for Rs.50,000/-, dated 21.02.1997 for Rs.1,00,000/- and dated 25.04.1998 for Rs.60,000/-. The appellant - accused was appointed as Assistant Executive Engineer on 03.07.1995 and joined his duties. The first receipt in Ex.D.15 indicates that on 30.06.1993 the appellant - accused paid Rs.50,000/-. Said payment of Rs.50,000/- by the appellant - accused on 30.06.1993 is prior to his appointment and considering the same, the trial Court has held that the appellant - accused paid Rs.50,000/- from his own source prior to appointment as a Government servant and excluded the same from the value of assets in item No. 3 while calculating value of acquisition of property by the appellant - accused during his service. The trial Court deducting the said amount of Rs.50,000/- from total sale consideration of Rs.3,70,000/- 32 has taken the value of asset in item No. 3 at Rs.3,20,000/-. The appellant - accused has filed his Annual Property Returns (APR) on his first appointment as per Ex.P.72 whereunder he has declared cash on hand of Rs.50,000/- as on 03.07.1995 - the date of his appointment. Even though there was balance sale consideration in respect of purchase of site at item No. 3, the appellant - accused had cash on hand in a sum of Rs.50,000/- and he had utilized the same for payment of balance sale consideration which he made after entering into service. Therefore, said amount of Rs.50,000/- has to be deducted from Rs.3,20,000/- and final value in respect of value of asset in respect of item No. 3 is to be taken as Rs.2,70,000/-.
ITEM Nos. 31, 32, 33, 34 and 35
25. Item No. 31 is electronic and electric items found in flat No. 104 of value of Rs.1,32,790/-; item No. 32 is value of furniture found in flat No. 104 of value of Rs.52,300/-. Appellant - accused in his APR - Ex.P.72 filed 33 on 03.07.1995 has shown the value of electrical items possessed by him in a sum of Rs.61,000/- and furniture of value of Rs.45,000/-. The appellant - accused got married on 09.11.1997. Wife of appellant - accused filed her income tax returns and declared the value of furniture held by her at Rs.15,000/-. Said income tax returns is part of Ex.P.94. Considering the said aspect, the value of furniture possessed by the appellant - accused is Rs.60,000/- (45000 + 15000). Therefore, furniture in item No. 32 in a sum of Rs.52,300/- needs to be excluded. Item No. 31 is value of electronic and electric items in a sum of Rs.1,32,790/-. The appellant - accused has declared the electrical and electronic goods of value of Rs.61,000/- in his APR (Ex.P.72) and therefore, said value of Rs.61,000/- is to be deducted from item No. 31. Hence, value in item No. 31 is Rs.71,790 (132790 - 61000). Item No. 34 is gym equipment of Rs.21,000/-.
34
26. Learned counsel for appellant - accused, referring to Rule 23 of the Karnataka Civil Service (Conduct) Rules, i.e., in note - II has contended that value of clothes, crockery or dress need not be included in annual property returns. Placing reliance on the same he contended that item No. 33, clothes in a sum of Rs.13,000/- and item No. 35 - household articles of Rs.52,935/- are to be excluded. Merely because there is no need for declaring the value of articles of daily use such as clothes, utensils, crockery or books in APR it does not mean that their value should not be taken in to consideration for the purpose of ascertaining value of the assets of the appellant - accused. Therefore, said contention of the learned counsel for appellant - accused does not hold any substance. Therefore, after exclusion of item No. 32 - furniture and Rs.61,000/- from item No. 31, on the remaining value 30% is to be deducted as observed by the trial Court in paragraph No. 43 of the impugned judgment since valuation is not made by experts 35 and these immovable properties are purchased during the check period consisting of 14 years. Therefore, the total value of item Nos. 31, 33 to 35 is Rs.1,58,725/- (71790 + 13000 + 21000 + 52935) and 70% of that comes to Rs.1,11,107.50/- (rounded off to Rs.1,11,108/-).
27. The appellant - accused has not disputed the findings of the trial Court with regard to assets at item Nos. 1, 2, 4 to 30.
28. The prosecution has estimated the value of assets of appellant - accused at Rs.48,18,161/-. The trial Court held that the prosecution has able to prove that the appellant - accused has acquired assets in the name of himself and his family members to the extent Rs.44,92,704/- only. In view of the above discussion, the value of asset at item No. 3 requires to be taken at Rs.2,70,000/- as against the value taken by the trial Court at Rs.3,20,000/-. The entire value of asset at item No. 32 namely, furniture, requires to be excluded. The total value 36 of item Nos. 31, 33 to 35 is Rs.1,58,725/- and 70% of that comes to Rs.1,11,108/-. In view of the above, the total value of assets as held by the trial Court in a sum of Rs.44,92,704/- is required to be deducted by Rs.1,63,300/- (item No. 3 - Rs.50,000/- + item No. 32 - Rs.52,300/- + item No. 31 - Rs.61,000/-) = Rs.43,29,404/-. Therefore, I hold that the appellant - accused had possessed assets worth of Rs.43,29,404/-.
EXPENDITURE
29. Expenditure component of the appellant - accused consisting of 46 items which are as under:
Sl. Descriptions Amount
No.
1. Invisible expenditure of the Rs. 6,57,917.00
family of accused during check
period.
2. Registration charges for Rs. 76,320.00
purchase of asset Item No.1.
3. Registration charges for Rs. 1,25,150.00
purchase of asset Item No.2.
4. Registration charges for Rs. 26,280.00
purchase of asset Item No.12 .
5. Registration charges for Rs. 5,539.00
purchase of asset Item No.11.
6. Registration charges for Rs. 4,688.00
purchase of asset Item No.9.
37
7. Registration charges for Rs. 5,035.00
purchase of asset Item No.8.
8. Registration charges for Rs. 4,949.00
purchase of asset Item No.10.
9. Registration charges for Rs. 45,950.00
purchase of asset Item No.7
10. Registration charges for Rs. 53,710.00
purchase of asset Item No.3
11. Stamp duty and registration Rs. 1,900.00
charges for gift deed.
12. Stamp duty and registration Rs. 2,475.00
charges in respect of partition
deed dated 6.09.2004
13. Panchayath tax Rs. 1,620.00
14. Electricity bill in respect of Flat Rs. 33,029.00
No.104.
15. Value of domestic cylinder Rs. 3,758.21
purchased by the accused.
16. Deposit to take domestic Gas Rs. 18,792.00
connection
17. Fuel and maintenance charges Rs. 75,359.00
of Car No.KA-02-P-4572.
18. Fuel and maintenance charges Rs. 20,264.30
of Car No.KA-02-P-6523.
19. Education fee of Neha, daughter Rs. 73,905.00
of accused.
20. Education fee of Kanisk, Rs. 23,100.00
daughter of accused.
21. Expenditure for birthday Rs. 2,000.00
celebration.
22. Membership fee paid by the wife Rs. 20,000.00
of the accused.
23. - do - Rs. 8,000.00
24. Premium of ICICI Prudential Life Rs. 40,000.00
insurance policy.
25. -do - Rs. 1,40,000.00
26. - do - Rs. 1,40,000.00
27. - do - Rs. 60,000.00
38
28. - do - Rs. 1,80,000.00
29. - do - Rs. 1,00,000.00
30. - do - Rs. 1,00,000.00
31. - do - Rs. 1,00,000.00
32. Premium towards LIC Policy Rs. 75,000.00
33. - do - Rs. 29,126.00
34. - do - Rs. 3,408.00
35. - do - Rs. 7,500.00
36. - do - Rs. 35,870.00
37. - do - Rs. 38,576.00
38. - do - Rs. 75,000.00
39. Premium for purchase of HDFC Rs. 1,60,000.00
Standard Life Insurance Policy.
40. Premium of R.D.in Post Office. Rs. 30,000.00
41. Premium of ICICI Insurance Rs. 40,000.00
Policy
42. Amount paid for PPF account Rs. 37,863.00
43. Maintenance charges and Rs.3,94,750.00
advance amount relating to Flat
No.104.
44. Income Tax paid by the Rs. 56,584.00
accused.
45. - do - Rs. 4,380.00
46. Income tax paid by the wife of Rs.16,955.00
the accused.
Total Rs.32,16,491.51
ITEM No. 1:
30. The prosecution has alleged that appellant - accused might have spent a sum of Rs.6,57,917/- during the check period on invisible expenditure, food and non- food items. Ex.P.69 is report furnished by Deputy Director 39 (Statistics), Karnataka Lokayuktha, Bengaluru. In this report it is shown that family expenditure has been prepared as per General Family Income and Expenditure Survey, 2009 Report of Karnataka and he was qualified to assess the expenditure. This Ex.P.69 has been disputed by appellant - accused. The author of Ex.P.69 by name Sri. G. Thulsiram has not been examined by the prosecution since he was no more. The prosecution has not examined any other expert to prove the contents of Ex.P.69. Ex.P.69 has been marked in the evidence of the Investigating Officer - P.W.10. The trial Court observed that Investigating Officer
- P.W.10 was working in Karnataka Lokayuktha and author of Ex.P.69 was also working in Karnataka Lokayuktha and therefore P.W.10 was having special knowledge about the signature of Sri. G. Thulsiram and therefore, evidence of Investigating Officer - P.W.10 is sufficient compliance of Section 67 of Indian Evidence Act for the proof of Ex.P.69. Even though the signature of Sri. G. Thulsiram on Ex.P.69 40 is proved through the evidence of Investigating Officer - P.W.10, its contents remained not proved since it is disputed by the appellant - accused. The trial Court considering that the check period is of 14 years, as per Ex.P.69 total expenditure was Rs.6,57,917/-, appellant - accused married in the year 1997, his first child was born 2000, second child was born in 2004, raid was conducted on 08.09.2009 and if the total expenditure shown in Ex.P.69 is spread into 14 years, per annum expenditure comes to Rs.1,64,479/- and if the same is divided between four members, then expenditure for each person would come to Rs.11,748/- per annum. The trial Court considering the same has held that the estimation in Ex.P.69 is reasonable. In Ex.P.69 there is a mention that the list of invisible/non-verifiable items covered under calculation has been enclosed with it. Said list includes LPG, electricity, diesel, school van/bus charges, private tuitions and other educational expenses, house rent, telephone charges etc. 41 Taking into consideration said expenses the report - Ex.P.69 is prepared. Electricity bill, cylinder value, fuel for car, education fee of children are separately included in item Nos. 14 to 20. If any expert had been examined to prove the contents of Ex.P.69, then the appellant - accused would have had an opportunity to cross-examine him to ascertain the above said aspects of inclusion of Electricity bill, LPG cylinder charges, fuel for car and education fee of children. If the entire value stated in Ex.P.69 is taken into consideration then regarding LPG cylinder value, electricity bill, school fee, fuel for car will be duplication. Therefore, the entire expenditure in Ex.P.69 in a sum of Rs.6,57,917/- cannot be taken into consideration since item Nos. 14 to 20 are separately stated are also included in it. Appellant - accused is also having income from agriculture and might have received grains, vegetables etc., grown in his lands and his expenditure towards food items cannot be equated to others who are not having agricultural lands. Therefore, 42 under the circumstances, only 80% of the value mentioned in Ex.P.69, i.e., a sum of Rs.5,26,333/- (80% of 6,57,917 = 5,26,333.60) can be taken as invisible expenditure in item No. 1.
ITEM No. 17
31. Item No. 17 pertains to fuel and maintenance of car bearing No. KA-01/P-4572 owned by wife of appellant - accused. Said car is second purchase and date of second purchase is 06.03.2004 as per the `B' extract - Ex.P.67 and date of first purchase is 09.03.2001. The Odometer running of the said car as on the date of second purchase is not forthcoming in the prosecution records. The total odometer running as on 08.09.2009 is 54721 as per Ex.P.41. The Investigating Officer has taken 21300 KMs for calculating the fuel and maintenance charges. Car has been used by the first owner for three years and appellant - accused has used the car for more than five years six months. Considering the same, the Investigating Officer 43 might have taken 21300 KMs out of total odometer running of 54721 KMs. Even though the said aspect has no scientific basis, but, it cannot be said that it is on higher side considering the total duration of usage of the car by the appellant - accused after its purchase, i.e. five years six months. P.W.13 is the author of Ex.P.67 who is the ARTO and he has deposed regarding the manner and method of his calculation of fuel consumption for those 21300 KMs based on the rate of petrol during the relevant period. Therefore, the trial Court has rightly taken that expense in item No. 17 and it is proper and correct.
ITEM No. 43
32. Appellant - accused was a tenant of an apartment. P.W.12 is the landlady. Ex.P.17 is the letter of landlady - P.W.12 regarding increase of rent. Ex.P.71 is the lease agreement. Appellant - accused has not disputed regarding the payment of rent of Rs.3,56,750/- but he has dispute regarding maintenance charges of Rs.38,000/-. As 44 per the contention of appellant - accused rent amount includes maintenance charges. The trial Court placed reliance on Ex.P.17 - letter of the landlady dated 25.01.2008 stating that rent of Rs.5,500/- per month and Rs.500/- for maintenance charges. The trial Court has ignored the terms of lease deed Ex.P.71. The trial Court erred in noting that the lease deed has no recital regarding maintenance charges. On perusal of Ex.P.71 it is clear that in term No.1 rent of Rs.4,500/- includes maintenance charges. In Ex.P.17 - letter issued by P.W.12 - landlady regarding enhancement of rent to Rs.5,500/- it is stated that Rs.500/- maintenance is to be paid apart from rent of Rs.5,500/-. P.W.12 in her cross-examination has admitted that rent includes maintenance. The trial Court did not rely on the said admission of P.W.12 but placed much reliance on Ex.P.17 which is subsequently issued by P.W.12 landlady ignoring the recitals in Ex.P.71 - lease deed. If recitals of Ex.P.71 - lease deed and admission in cross-examination 45 by P.W.12 are taken into consideration then it is clear that rent amount does not include maintenance charges. Therefore, the trial Court has erred in taking maintenance charges of Rs.38,000/-. Therefore, expenditure in item No. 43 has to be taken in a sum of Rs.3,56,750/-.
33. The prosecution has alleged the total expenditure made by the appellant - accused during the check period was Rs.32,16,491/-. The trial Court held that the prosecution has proved that an amount of Rs.32,14,871/- as has been spent by the appellant - accused under various heads. The appellant - accused has not disputed the findings of the trial Court with regard to expenditure at item Nos. 2 to 16, 18 to 42 and 44 to 46. In view of the findings on item Nos. 1, 17 and 43, in item No. 1 a sum of Rs.1,31,584/- (6,57,917 - 5,26,333) + in item No. 43 Rs.38,000/- totaling to Rs.1,69,584/- requires to be deducted in Rs.32,14,871/- which comes to 46 Rs.30,45,284/-. Therefore, the expenditure established is Rs.30,45,284/-.
INCOME OF APPELLANT - ACCUSED
34. Prosecution has shown the income of the appellant
- accused during the check period in 31 items. The table of income given by the prosecution is as under:
1. Salary received by the accused Rs. 1,44,190.00
2. - do - Rs. 26,384.00
3. - do - Rs. 52,984.00
4. - do - Rs. 2,21,929.00
5. - do - Rs. 1,394.00
6. - do - Rs. 1,82,002.00
7. - do - Rs. 74,420.00
8. - do - Rs. 9,83,100.00
9. - do - Rs. 2,92,749.00
10. Agriculture and Horticulture Rs. 10,21,365.55 income received by the accused.
11. Agriculture and Horticulture Rs. 1,22,870.00 income received by wife of the accused.
12. Rent received by the wife of the ----
accused.
13. Sale consideration received by Rs.25,20,000.00 the wife of the accused.
14. Sale consideration received by Rs.2,05,000.00 the accused.
15. Sale consideration received by Rs.1,00,000.00 the wife of the accused after selling Car No.KA-02-M-6523.
16. GPF Partial withdrawal. Rs.1,00,000.00
17. Loan received from Private ----47
person.
18. Bank interest Rs. 12,390.00
19. - do - Rs. 3,492.00
20. - do - Rs. 5,393.00
21. - do - Rs. 5,937.00
22. - do - Rs. 7,254.00
23. - do - Rs. 14,427.00
24. - do - Rs. 2,445.00
25. Maturity value of R.D. Rs. 36,445.00
26. Maturity value of NSC Rs. 5,038.00
27. Maturity value of Life Insurance Rs. 11,842.41 Policy.
28. - do - Rs. 7,548.99
29. - do - Rs. 10,000.00
30. Income received by wife of the ----
accused.
31. Income received by the accused ----
from his business.
Total Rs. 63,25,565.95
ITEM No.3
35. Appellant - accused has drawn salary of
Rs.52,984/- from 18.11.1997 to 10.06.1998. Ex.P.30 is the salary statement issued by the competent authority in which office the appellant - accused worked as a public servant. Appellant - accused has admitted salary shown in Ex.P.30 but claimed that in addition to salary shown in Ex.P.30 he has received additional salary in the form of 48 arrears of annual increment to the extent of Rs.1,538/-. In order to substantiate this claim the appellant - accused has produced last pay certificate - Ex.D.16. In Ex.D.16 the authority has shown the pay particulars of the appellant - accused drawn up to 15.06.1998. On the back page of Ex.D.16, in small letters, it has been shown that Rs.1,538/- has been drawn as annual increment arrears for the period from 18.04.1997 to 15.06.1998. The prosecution has disputed the said entry. Ex.P.30 and Ex.D.16 are contradicting in Rs.1,538/-which is shown in Ex.D.16. The appellant - accused has not examined the authority who issued Ex.D.16 to prove its contents. The trial Court observed that original LPC will not be handed over to the employee/government servant and the appellant - accused has not clarified how he came in possession of Ex.D.16. The trial Court further observed that Ex.D.16 is not produced from property custody. The trial Court did not rely on Ex.D.16 since its author is not examined and it is not 49 produced from property custody. Therefore, the trial Court has rightly held that the appellant - accused failed to establish that he has received a sum of Rs.1,538/- in addition to his salary shown in Ex.P.30.
ITEM No. 6
36. Appellant - accused received salary of Rs.1,82,002/- for the period from 16.10.2000 to 22.10.2002. In Ex.P.31 and Ex.D.31(a) issued by the General Manager, Dr. B.R. Ambedkar Development Corporation Limited, Bengaluru, salary paid to the appellant
- accused who worked as Executive Engineer in that Corporation is shown as Rs.1,82,002/-. Appellant - accused has admitted salary shown in Ex.P.31(a). However, appellant - accused has claimed that in additional to said salary he received additional salary of Rs.4,880/- during the said period. The appellant - accused has relied upon Ex.D.7 which is the salary statement issued by the Karnataka Scheduled Caste and Scheduled Tribes Development 50 Corporation Limited dated 05.06.2004. In Ex.D.7 the authority has shown that from 16.10.2000 to 21.10.2002 the total net salary of Rs.1,86,882/- was paid to the appellant - accused who worked in that Corporation as Assistant Executive Engineer. The trial Court on reading Ex.D.7(1) has erred in holding that the salary for January 2003 has been added and it is the main cause for difference in Ex.P.31(a) and Ex.D.7(a). The said amount which is paid in January, 2003 as per Ex.D.7(1) in a sum of Rs.14,938/- is not salary but it is increment arrears from 16.10.2000 to October, 2002, it is also reflected in item No. 31 of Ex.P.31(a). In the same entry a sum of Rs.4,519/- has been deducted and increment arrears after deducting the same is paid at Rs.10,419/-. It appears, that deduction of excess of salary might be amount claimed by the appellant - accused. In Ex.D.7(a) the basic salary for October 2002 is Rs,5,690/- and as per Ex.P.31(a) basic salary for October 2002 is Rs.7,800/-. Appellant - accused 51 has not examined the author of Ex.D.7(a) in order to prove its contents as there are contradicting entries in Ex.P.31(a). Therefore, the trial Court has rightly rejected the claim of appellant - accused for additional salary of Rs.4,880/- during 16.10.2000 to 22.10.2002.
ITEM No. 10
37. This item pertains to income from agricultural lands, from agricultural crops and horticultural crops. The Investigating Officer has bifurcated the income received by appellant - accused from land and properties under three heads. First part relates to horticulture income received by appellant - accused from 31.03.2004 to 31.03.2009 from his self-acquired properties to the extent of Rs.10,21,365.55. In the second part the Investigating Officer has shown that the appellant - accused has received agricultural income of Rs.48,645/- from his self-acquired property from 2004-05 to 2009-10. In the third part the Investigating Officer has shown that the appellant - 52 accused was having ancestral landed properties and from such lands joint family received income and from such income he received income of Rs.1,06,321/- from 31.03.1996 to 31.03.2009. Prosecution has examined P.W.6 - Senior Assistant Director, Horticulture, Hiriyoor to prove the horticulture income received by appellant - accused from self-acquired property. P.W.6 had deputed one Sri. Sandeep Kumar H., Assistant Horticulture Officer for inspection of the land and estimation and he inspected the lands and furnished estimation in respect of horticulture income of said lands. Ex.D.58 is the estimation prepared by said Sri. Sandeep Kumar H., and the same has been countersigned by P.W.6. P.W.6 has stated that from those lands horticulture income of Rs.10,21,365.55 was received by the owner. P.W.6 has shown the theory of ascertaining horticulture income of these lands by saying Total Realistic Income (TRI) = Total Net Income (TNI) - (TNI/2). By such 53 theory estimation of horticulture income in the form of TRI is shown in Ex.P.58.
38. Prosecution has examined P.W.11 - Agricultural Officer working in Agriculture Office at Hiriyoor to prove the agriculture income received from self-acquired properties which are purchased by him. P.W.11 has deposed that she visited the self-acquired property including survey No. 9/1 and estimated the agriculture income derived from such land and estimated income is Rs.48,645/- as per report Ex.P.48.
39. The joint family of appellant - accused was holding lands bearing survey No. 10/2, 10/1C2, 10/1C3 and 9/1 at J.J. Halli and from said lands the family received horticulture income of Rs.2,95,118.82 from 1993-94 to 2004-05 and to prove the said income prosecution has relied on the evidence of P.W.6 and her report - Ex.P.59. P.W.6 has deposed that the report - Ex.P.59 has been prepared by Sri. Sandeep Kumar H., Assistant Horticulture 54 Officer and she has verified the estimate prepared by him in Ex.P.59 and countersigned it. Said estimation was done on the theory used for horticulture income of self-acquired properties of appellant - accused in the form of TRI = TNI - (TNI/2).
40. Income from horticulture and agriculture of self- acquired property of appellant - accused and joint family property has been taken on the estimation that was done on the theory in the form of TRI = TNI - (TNI/2). Learned counsel for appellant - accused argued that total net income (TNI) is the income taken after deducting all the expenses and there is no scientific reason for taking half of total net income stating that it is the total realistic income (TRI). He submitted that total net income (TNI) is double of total realistic income and therefore, the appellant - accused has received horticulture income of Rs.20,42,730/- shown in Ex.P.58 and joint family has received income of Rs.5,90,236/- shown in Ex.P.59. P.W.6 who is stated to be 55 an expert has not stated why total net income has to be divided by 2 and what is total realistic income (TRI). Even the Investigating Officer - P.W.10 has only stated that TNI will be double of TRI and he has taken the income based on the figures mentioned in Ex.P.58 and Ex.P.59.
41. The logic of TNI and TRI can be ascertained on a bare reading of Ex.P.42 whereunder the methodology of arriving at TNI is reflected. TNI mentioned in Ex.P.42 is net income after deduction of expenses. The observation of the trial Court in paragraph No. 104 of the impugned judgment is as under:
"It appears that the total net income includes the cost of cultivation and therefore, cost of cultivation to the extent of 50% would be deducted from the TNI and the total realistic income will be ascertained. Therefore, TRI is the real income received by the owner."
The trial Court has observed that, 56 "why TNI has been divided into two parts while ascertaining TRI is not asked to P.W.6 either by prosecution or by the defence."
42. The observation of the trial Court as noted above in paragraph No. 104 of the impugned judgment is not correct in view of Ex.P.42 wherein it is specifically mentioned that total net income is arrived at after deducting cost of cultivation and expenses. Therefore, the trial Court erred in not taking the total net income as mentioned in Ex.P.58 and Ex.P.59. Therefore, the appellant
- accused has received horticulture income of Rs.20,42,730/- as shown in Ex.P.58 for the period from 2003-04 to 2009-10 and the joint family of the appellant - accused has received income of Rs.5,90,236/- as shown in Ex.P.59.
43. Appellant - accused has received total income of Rs.48,645/- from agricultural lands which are his self- acquired properties as per Ex.P.40, Ex.P.57 and Ex.P.60. 57 Learned counsel for appellant - accused would contend that the Investigating Officer has not taken into consideration agricultural income in respect of some properties stating that RTC does not reflect any crop grown in those lands. The appellant - accused has not placed any material to show that he has grown crop in those lands even though RTC does not reflect crop grown. Therefore, the trial Court has rightly held that appellant - accused has received agricultural income of Rs.48,645/- in respect of lands in survey No. 10/1D, 10/1C1, 10/1E, 10/1F and 9/1 situated at J.J. Halli.
44. With regard to the portion of item No. 10 which pertains to agricultural lands owned by the joint family, the Investigating Officer has taken the total income of Rs.1,06,321/-.
45. Father of appellant - accused namely Sri. M.N. Narayanappa was married to one Smt. Sakamma and from the said marriage they had four children, namely, Sri. 58 Ashwathappa, Smt. Lakshmidevi, Sri. Naganna and Sri. Ramanna. Upon demise of said Smt. Sakamma father of the appellant - accused married Smt. Narayanamma and from the said marriage had got eight children, namely, Sri.Narayanaswamy, Smt. Umadevi, Smt. Savithri, Sri. Narasimhamurthy, Smt. Prema, Sri. Narasimharaju (appellant - accused), Smt. Varalakshmi and Sri. Satish. Father of appellant - accused expired on 26.02.1991 and his mother Smt. Narayanamma expired on 31.01.2003. Three step brothers of the appellant - accused born to Smt. Sakamma executed a deed of release on 11.08.1976 under three separate deeds of release - Ex.D.3, Ex.D.4 and Ex.D.5. Step sister of appellant - accused namely Smt. Lakshmidevi was not a coparcener and did not have a share in the joint family property and therefore there was no deed of release executed by her.
46. On the death of Sri. Narayanappa there were only four coparceners. Elder brother of the appellant - accused 59 namely, Sri. Narasimha Murthy executed Ex.D.6 - release deed and separated from the joint family by taking his share on 22.04.1991. Therefore, there are only three coparceners available in the family of appellant - accused. Learned counsel for appellant - accused has contended that as there were only three coparceners the income from the joint family lands has to be divided by three. The deed of partition - Ex.P.65 is executed by the sisters confirming that they have no share in the joint family properties. He contended that the appellant - accused during his examination-in-chief has merely contended that income was distributed between sister, mother and three brothers who were the sole coparceners and such distribution was out of love and affection and not as a matter of right. There is no evidence regarding quantum of distribution and that distribution was made equally. Sister of the appellant - accused got married on 29.04.1996 within nine months from the commencement of check period.
60
47. The trial Court in paragraph No. 120 of the impugned judgment has extracted the admission given by D.W. 1 - appellant - accused in his examination-in-chief wherein he has specifically stated that from the year 1992 till execution of partition deed - Ex.P.61(a), he, his brothers Sri. Satish, Sri. Narayanswamy, his mother and sister Smt. Varalakshmi were sharing the income from joint family property. Appellant - accused has admitted in the said chief-examination that till death of Smt. Narayanamma on 31.03.2003 himself, his brothers Sri. Satish and Sri. Narayanaswamy, his mother and sister Smt. Varalakshmi received income from the joint family property. Taking into consideration said admission, the trial Court has rightly held that the appellant - accused was receiving only 1/5th share in the total income derived from the joint family agriculture lands from 1992 to 06.09.2004. After 06.09.2004 till 08.09.2009 appellant - accused and his brothers Sri. Satish and Sri. Narayanaswamy were receiving income from the 61 joint family properties. Therefore, from 07.09.2004 to 08.09.2009 agricultural income has to be divided into three parts and share of appellant - accused was 1/3rd. The trial Court has considered the same and it is proper. The trial Court has taken into consideration income from survey No. 10/2, 10/1C2, 10/1C3 and 9/1, the total realistic income value which is half of total net income. Therefore, total net income value, as discussed supra, has to be taken into consideration which is total net income after deducting all the cultivation expenses. Therefore, income of appellant - accused from the said lands is 1/5th of total net income. In view of the above, calculation of income received by appellant - accused from agricultural land is as under:
Sl. Sy.No. Horticulture & Share of the Horticulture Share of the No. agriculture appellant Income after appellant income till death of death of Narayanamma Narayanamma
1. 10/2, 1,62,097/- 1/5th = 1,33,020/ X 2 1/3rd = 10/1C2 {162097 X 2 64838.80 = 10/1C3 = 1/5th 2,66,040 88,680 9/1, 324194/5= = 14928.40 10/1A1 64838.8} 37,321/-
{37321 X 2 =74642/5= 62 14928.40}
2. 86/1, 35,353/- 1/5th =7070/- Nil 87/1, 79,924/- 1/5th - do -
92/2 1,26,985/- =15,985/- - do -
+230/- 1/5th
=25,397/-
1/5th =46/-
3. 67/2 1,20,587/- Nil 55,190/- 1/3rd
18,396/-
4. 67/5 1,20,587/- Nil 55,190/- 1/3rd
18,396/-
Total 6,83,084/- 1,28,264.20 3,76,420 1,25,472/-
Therefore, appellant - accused has received a sum of Rs.2,53,736 (1,28,264 + 1,25,472) from the joint family lands.
48. In view of the above, I hold that from the self- acquired properties appellant - accused has received horticulture income of Rs.20,42,730/-. Further appellant - accused has received agricultural income of Rs.48,645/- from his self-acquired property. Appellant - accused has received income of Rs.2,53,736/- from agricultural land of his joint family. Therefore, total income received by appellant - accused from landed properties is Rs.23,45,111/- (20,42,730 + 48,645 + 2,53,736/-). 63 ITEM No. 12
49. The appellant - accused has furnished schedule statement before the Investigating Officer stating that his wife received rental income from Sri. P. Kiran - D.W.3 in respect of poultry farm existing in survey No. 86/1, 87/1 and 88/1 to the extent of Rs.2,32,950/- during 07.03.2002 to 31.08.2004. The Investigating Officer found the claim to be false and has rejected it. The appellant - accused, in order to prove such income, examined himself as D.W.1 and got examined his brother - Sri. Satish as D.W.2 and said Sri. P. Kiran - tenant as D.W.3 and placed reliance on the document - Ex.D.38. Ex.P.38 is the letter dated 31.01.2012 given by D.W.3 to the Investigating Officer stating that he has paid rent to the wife of the appellant - accused and others. This letter has been given by D.W.3 during investigation along with some documents and therefore, the trial Court has observed that the said letter is in the nature of statement under Section 161 of Cr.P.C. but 64 the same is incorrect. D.W.1 in his evidence has deposed that his family was having poultry farm in Devanahalli and it was leased in favour of D.W.3 who was running Sujatha Feeds and he was paying rent of Rs.8,000/- per month. D.W.2 in his evidence has deposed that from 2002 to 2007 the poultry farm which existed in lands at Hakkipete was given to D.W.3 on rent and he was running Sujaya Farms in such poultry and had paid rent of Rs.7,765/- per month to the wife of appellant - accused. D.W.2 in his cross- examination has stated that he has destroyed the said agreement. D.W.3 has deposed that he has given his statement before the Investigating Officer including Ex.D.38. He has deposed that he has taken the poultry farm sheds on rent by entering into written agreement and he was a tenant for 3 to 5 years and paid rent of Rs.7,765/- to Lakshmi when he was confronted with Ex.P.38. The trial Court noted some contradictions in the evidence of D.W.1, D.W.2 and D.W.3 in respect of rent paid by D.W.3 to the 65 wife of appellant - accused and regarding the quantum of rent amount. The trial Court, referring to Ex.P.65(A) - partition deed dated 06.09.2004 under which survey Nos. 86/1, 87/1 and 92/2 have been allotted to the share of D.W.2 - Sri. Satish and under such circumstances how wife of appellant - accused received rent till December, 2004. Even D.W.2 has stated that till 2007 D.W.3 paid rent to the wife of appellant - accused. The trial Court observed that wife of appellant - accused was not a sharer and under what capacity she had received the rent is not spoken by any of the witnesses. As a wife one can enter into an agreement in respect of property of her husband and can receive rent amount, there is no question of any authorization by appellant - accused to his wife to enter into lease agreement with D.W.3 and receive rent as observed by the trial Court. The trial Court harped upon the oral evidence of D.W. 1 to D.W.3 and ignored Ex.P.94 - lease deed dated 07.03.2003 executed between D.W.3 - 66 Sri. P. Kiran and Smt. Lakshmi wife of appellant - accused. In clause No.2 of the said lease deed - Ex.P.94 rent amount is Rs.7,765/-. Said rent amount in a sum of Rs.7,765/- corroborates with the contents of the letter - Ex.P.38 issued by D.W.3 to the Investigating Officer. D.W.3 along with the said letter - Ex.P.38 has produced his balance sheet, profit and loss account, bank statement, Income Tax acknowledgment, electricity bill, etc., but, the Investigating Officer has not produced them. Prosecution has cited the said Sri. P. Kiran as charge sheet witness No.13 but did not choose to examine him and therefore, the appellant - accused summoned him and examined him as D.W.3. The trial Court did not refer to and consider Ex.P.94 - lease deed and its contents. Considering the evidence of D.W. 1 to D.W.3 coupled with lease deed Ex.P.94 and Ex.P.38, the appellant - accused has established that his wife received rent of Rs.7,765/- per month for the period from 07.03.2002 to 31.08.2004 in a sum of Rs.2,32,950/-. 67 The trial Court has erred in not accepting the said claim made by the appellant - accused.
ITEM No. 14
50. Under sale deed dated 09.06.2006 produced in Ex.P.35 the land bearing survey No.67/2, 67/5, 148/1 measuring 2 acres 13 guntas, 1 acre 38 guntas and 10 guntas respectively purchased by Smt. Narayanamaa (mother of appellant - accused) shown in assets item Nos. 5 and 6 were sold for consideration amount of Rs.4,10,000/-. Ex.P.35 - sale deed is executed by appellant - accused and his brother Sri. Satish (D.W.2). As said sale deed is executed by two persons it is stated that the appellant - accused has received half consideration shown in said sale deed to the extent of Rs.2,05,000/-. It is the case of appellant - accused that these three lands were agreed to be allotted to his share by the family members at the time of effecting partition deed dated 06.09.2004 under Ex.P.65 and even though sale deed is jointly executed by 68 himself and his brother Sri. Satish, he alone has received entire sale consideration in a sum of Rs.4,10,000/-. It is the case of appellant - accused that even though the partition deed - Ex.P.65 is executed on 06.09.2004, the property sold under sale deed dated Ex.P.35 are not included in the said partition deed with the understanding that the said property is to be allotted to the appellant - accused. D.W.2
- Sri. Satish, brother of appellant - accused, has deposed that the appellant - accused received the entire sale consideration of Rs.4,10,000/- and he has signed the sale deed as nominal executor and because of that he has not disclosed the receipt of consideration in his income tax return. In Ex.D.17 to Ex.D.22, income tax return of D.W.2 - Sri. Satish, he has not shown receipt of consideration amount shown in Ex.D.35 - sale deed. Appellant - accused in his income tax return - Ex.D.42 has shown that he has received sale consideration of Rs.4,10,000/-. Inspite of such income tax return and evidence of D.W.1 and D.W.2, 69 the trial Court did not consider them stating that appellant
- accused has purchased site bearing survey No. 23 of Gollubana hobli and the said sale consideration amount of Rs.4,10,000/- has been shown in income tax return to claim and establish that it is reinvested in purchasing other property. The trial Court further observed that the said amount of Rs.4,10,000/- has been shown in the income tax returns of the appellant - accused in order to avoid payment of income tax on the capital gain received under Ex.P.35 - sale deed. Even inspite of said documents the trial Court has hypothetically given said reasoning which has no basis. D.W.2 - Sri. Satish one of the executors has not shown the receipt of sale consideration in his income tax returns and the appellant - accused has shown the entire sale consideration of Rs.4,10,000/- in his income tax returns. There is no question of any help by D.W.2 - brother of appellant - accused to the appellant - accused as observed by the trial Court. Therefore, the trial Court 70 ought to have held that the appellant - accused has received the entire sale consideration in a sum of Rs.4,10,000/- after sale of property shown in sale deed Ex.P.35.
ITEM No. 30
51. Appellant - accused while submitting schedule statement before the Investigating Officer has claimed that his wife Smt. Lakshmi was conducting computer classes from 1997-98 to 2009-2010 and she has received income from such profession. The appellant - accused (D.W.1) in his evidence has deposed that his wife is holder of Engineering degree in Electronics and Communication and she was conducting tuitions to students of 8th Standard to B.E. in her house for the subject of mathematics, science and computer and thereby she earned money and shown the same in her income tax returns filed by her from time to time. The appellant - accused has not maintained any records relating to conduct of classes and her profession 71 excluding income tax returns. There was only one computer in the house of appellant - accused and it is the evidence of appellant - accused that the students who were coming to the tuitions were brining their Lap Tops for coaching. Even wife of the appellant - accused has not maintained any day book or any supporting documents in respect of her profession. There are no bills relating to income received by the wife of appellant - accused as shown in her income tax returns. Ex.D.23 to Ex.D.31 are income tax returns of the wife of appellant - accused filed for the assessment years 2002-2003 to 2010-2011. In these records wife of the appellant - accused has shown that she earned money from computer training. The trial Court rejected the claim of the appellant - accused in that regard on the ground that appellant - accused has not examined his wife and any student who attended tuition classes and paid fees. Learned counsel for appellant - accused has argued that being husband he is competent to adduce evidence on behalf of 72 his wife in view of provisions contained under Section 120 of the Evidence Act.
52. Section 120 of the Evidence Act reads thus:
"120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial. - In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness."
53. In view of the aforesaid provision contained in Section 120 of the Evidence Act husband is competent witness to give evidence in a criminal case on behalf of his wife. The income of the wife is also an asset. The government servant, in view of Rule 23 of the Karnataka Civil Service (Conduct) Rules, 1966 is required to report the income of his wife who is a member of the family in his APR. The APR filed by the appellant - accused for the 73 relevant period does not disclose the income of wife earned from tuition/computer classes. Except the Income Tax Returns of the wife of the appellant - accused there are no records maintained regarding taking of tuition classes, income from fees of tuition. Even the appellant - accused has not examined any of the students who took tuition from his wife. Therefore, the trial Court has rightly held the appellant - accused has failed to prove that his wife earned money from her profession during the check period. ITEM No.31
54. Appellant - accused in the schedule statement submitted before the Investigating Officer has claimed that he has received income from business/trade during check period to the extent of Rs.5,13,041/-. Said claim came to be rejected on the ground that no material has been furnished by appellant - accused. The appellant - accused (D.W.1) in his evidence has stated that he has received 74 income from selling the nurseries of arecanut and coconut and such income has been shown in his income tax return - Ex.D.41 to Ex.D.44. Ex.D.41 to Ex.D.44 are copies of income tax returns submitted by appellant - accused to the Income Tax Department as kartha of joint family. In the balance sheet - Ex.D.42 appellant - accused has shown that he received profit of Rs.1,47,000/- from business; in Ex.D.43 Rs.1,65,000/- and Ex.D.44 - Rs.1,90,000/- as profit from business. The trial Court has observed that appellant - accused has not produced any documents regarding the income from nursery and who is managing the said nursery. The trial Court has observed that as per Rule 16 of the Rules, Government servant is totally barred from carrying on any trade or business during service. Learned counsel for appellant - accused has argued that in accordance with the Karnataka Land Reforms Act and according to Section 2(1) of the Act agriculture includes horticulture. He further referred to explanation of Section 75 89 of the Karnataka Land Reforms Act, agricultural purposes includes sericulture, fishery, poultry etc. Therefore, he submitted that nursery is not a business and it comes under agriculture and there is no need for the appellant - accused to take permission and Rule 16 of the Rules does not apply as it is not a business. Horticulture and agricultural income has already been considered in item No. 10. The appellant - accused has not separately shown income from nursery in his APR. The appellant - accused has not maintained any record to establish that he has received income from nursery as shown in his Income Tax Returns. Therefore, the trial Court has rightly held that appellant - accused has failed to prove income from nursery business.
55. The appellant - accused has not disputed the findings of the trial Court on income at item Nos. 1, 2, 4, 5, 7 to 9, 11, 13 and 15 to 29. The trial Court held that the income of the appellant - accused and his wife as 76 established by the prosecution is Rs.67,58,709/- (Rs.63,25,565/- as per prosecution + 4,33,144/- under item Nos. 10, 27 and 28 proved by the appellant - accused). In view of the findings of this Court on item Nos. 10, 12 and 14, the total income from item No. 10 is Rs.20,42,730/- + 48,645/- (from horticulture and agriculture of properties standing in the name of appellant - accused) and Rs.2,53,736/- share of the income of appellant - accused from horticulture and agriculture income from joint family properties. Therefore, the total income under item No. 10 is Rs.23,45,111/-. The said income as held by the trial Court in a sum of Rs.12,39,475/- requires to be deducted in Rs.23,45,111/- which comes to Rs.11,05,636/- and it has to be added to the income as arrived at by the trial Court. Apart from that income of Rs.2,32,950/- in item No. 12 and Rs.2,05,000/- in item No. 14 requires to be added to the income. Therefore, the total income to be added is Rs.11,05,636/- + 77 Rs.2,32,950 + Rs.2,05,000 = Rs.15,43,586/-. Therefore, the total income of the appellant - accused as established is Rs.67,58,709/- (trial Court) + Rs.15,43,586/- = Rs.83,02,295/-.
56. The trial Court considering defence evidence led by appellant - accused has held that an amount of Rs.10,000/- has to be added as assets of the appellant - accused and Rs.24,860/- has to be added as income of the appellant - accused during the check period.
57. In view of the above, the assets in possession of appellant - accused, his wife, and children are worth Rs.43,29,404/-. The expenditure established is Rs.30,45,284/-. The income established is Rs.83,02,295/-. Apart from that appellant - accused by his defence has established assets of Rs.10,000/- and income of Rs.24,860/-. In view of the above, the assets + expenditure does not exceed the income established. 78 Therefore, the appellant - accused has not acquired any assets disproportionate to his known source of income. The trial Court has erred in holding that the appellant - accused has acquired assets disproportionate to his known source of income.
58. In view of the above, the point is answered in the affirmative. In the result, the following;
ORDER I. Appeal is allowed.
II. The impugned judgment of conviction and order of sentence dated 10.11.2022 passed in Spl.C. No. 107/2014 by the III Additional District and Sessions Judge and Special Court for trial of cases relating to Prevention of Corruption Act, Dakshina Kannada, Mangaluru, is set aside. 79 III. The appellant - accused is acquitted for the offence punishable under Section 13(1)(e) read with Section 13(2) of P.C. Act.
IV. Fine, if any, deposited is ordered to be refunded to appellant - accused.
Sd/-
JUDGE.
LRS.
CT-SM