Madras High Court
M.S.Kuppusamy (Deceased) vs Unknown on 25 March, 2015
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.03.2015
CORAM:
THE HONOURABLE MS. JUSTICE R.MALA
Criminal Appeal No.344 of 2005
Date of Reserving the Judgment
17.03.2015
Date of Pronouncing the Judgment
25.03.2015
1.M.S.Kuppusamy (Deceased)
2.M.S.Prema
3.M.S.Subadhra .. Appellant/Accused
(Appellants 2 and 3 were brought on record as LR's of the deceased first appellant as per order dated 06.01.2009 in M.P.No.173/2008 by RRJ)
v.
State rep by
Inspector of Police
SPE/CBI/ACB, Chennai .. Respondent/Complainant
Prayer:
Criminal appeal filed under Section 374 of Cr.P.C., against the judgment of conviction and sentence, dated 13.04.2005, passed by the learned Additional Special Judge for CBI Cases, Chennai in C.C.No.17 of 1997.
For Appellants : Mr.B.Satish Sundar
For Respondent : Mr.K.Srinivasan,
Special Public Prosecutor (CBI cases)
J U D G M E N T
This appeal has been preferred by the appellants challenging the judgment of conviction and sentence passed against them on 13.04.2005 in C.C.No.17 of 1997 on the file of learned Additional Special Judge for CBI Cases, Chennai. The first appellant who was arrayed as an accused was convicted and sentenced as follows:
Sections Sentences 5(2) r/w 5(1)(e) of PC Act, 1947 corresponding u/s 13(2) r/w 13(1)(e) of PC Act, 1988 Two years R.I, Fine of Rs.5,000/- in default to undergo Simple Imprisonment for 6 months.
Set off was ordered under Section 428 Cr.P.C.
2. The case of the prosecution based on the prosecution witnesses is as follows:
(a) The first appellant/accused joined the Customs Department as a Lower Divisional Clerk in the year 1956 and was promoted as a Preventive Officer in the year 1974. He is a member of the Hindu Undivided Family. He is the elder son of the family and he had two brother and four sisters. Till the death of his mother in the year 1982, he had 1/8th share in the Hindu Undivided Family properties and after the death, he had 1/7th share in the properties.
(b) As a Preventive Officer, he worked in various posts such as Bond Officer, Custodian of articles in Customs Warehouse and Preventive Officer of the Customs House and at Air Cargo Complex, Madras. While so, during the year 1985, a case was registered by the CBI, ACB, Chennai against the accused and others in RC.No46/A/85 and after getting search warrant from the Chief Metropolitan Magistrate Court, Egmore, the search was conducted in the house of the first appellant/accused at Door No.1, Kuppiahchetty Street, West Mambalam.
(c) On the basis of the search lists and inventories, the case in RC.56/85 u/s 5(2) r/w 5(1)(e) of the Prevention of Corruption Act, 1947 was registered against the first appellant/accused on 19.09.1985. Since the accused as a Preventive Officer was posted to sensitive places from the year 1980 onwards, the check period was taken from 01.01.1980 to 31.08.1985.
(d) During the course of the investigation, it was found that the accused acquired most of the assets in the form of Fixed Deposits and other investments in the name of his wife and daughter during the period 1984 82. At the beginning of the check period, the accused was found to be in possession of assets worth Rs.10,410.28/-. The income during the check period is Rs.1,43,916.51/-. The expenditure during the check period is Rs.42,166.18/- and the lawful savings during the check period is Rs.1,01,750.33. However, the accused had acquired the assets worth about Rs.3,43,193.62/-. So, the accused accumulated disproportionate wealth to an extent of Rs.2,41,443.29/-.
(e) Since the first appellant/accused was not able to satisfactorily account for the said assets, the Investigating Officer laid the chargesheet under Section 173 Cr.P.C.
3. The learned Trial Judge placed incriminating evidence against the accused under Section 313(1)(b) Cr.P.C. The accused denied the same in toto. After considering the oral and documentary evidence, the learned Trial Judge has convicted the first appellant/accused as stated above.
4. Challenging the conviction and sentence, the learned counsel for the appellants had raised the raised the following points:
(i) The Trial Court has failed to consider the income received from the joint family property. Even though in his statement under Section 313 Cr.P.C, the first appellant/accused had specifically stated that after the death of his mother, as her eldest son viz., kartha of the family, he had received the income from the immovable properties and the salary of other working members of the joint family and made investments, the same was not properly appreciated by the Trial Court.
(ii) The property at Adambakkam was purchased only after obtaining necessary permission from the authorities concerned. The authority concerned had accorded permission only after being satisfied with the source of income.
(iii) P.W.19/ has fairly conceded that he has not obtained search warrant from the authority concerned. So, when search itself is illegal, the seizure is also illegal.
(iv) P.W.1/Sanctioning authority, while according sanction has not applied his mind. Hence, the non-application of mind itself would vitiate the sanction order.
(v) The brother of the first appellant/accused namely, Mr.Vijayaraghavan was not examined wantonly by the prosecution.
(vi) The defence has been probabilised by the evidence of P.W.12/Ranganathan and D.W.1/Seethammal.
(vii) The Trial Court has failed to consider that during the check period viz., 01.01.1980 to 31.08.1985, P.W.12/Ranganathan has earned a sum of Rs.1,16,900/- and D.W.1/Seethammal has earned a sum of Rs.69,000/- and those amounts were handed over to the first appellant/accused.
(viii) The Trial Court has placed reliance on Ex.P.32/Property Statement and on that basis, it was held that the first appellant/accused is entitled to only 1/8th share in the property. But, it is only the undivided share and not the income derived by the first appellant.
(ix) The Trial Court has not considered the documents viz., EX.D.1/Rent Receipt Book; Ex.D.8, Ex.D.9/Acknowledgement and Ex.D.10/Rent Receipt Book series, stating that the non-examination of the tenants is fatal.
Thus, the learned counsel for the appellants prayed for setting aside the impugned judgment of conviction and sentence.
5. Resisting the same, the learned Special Public Prosecutor (CBI cases) would submit that the first appellant/accused had submitted his property statement as on 01.01.1985, wherein he has stated that he is entitled to 1/8th share in the joint family property. Nowhere in the said statement, the first appellant herein has stated that he is the kartha of the family and he is managing the entire property. Further, if he be the kartha of the family, there would be no necessity for him to obtain a loan from his brother for purchasing a property in his name. The learned Special Public Prosecutor would further submit that within a very short span of time, the first appellant/accused had deposited amount to the tune of Rs.2,28,682.86/- in the name of his wife and daughter. Further, there is no evidence to show that he had obtained consent from other members of the joint family and deposited the amount in the name of his wife and daughter. The learned Special Public Prosecutor would further submit that to prove only the income received from the joint family property as rents and advances had been deposited, neither the tenant nor the occupier of the property has been examined. So, the Trial Court has considered all the aspects in proper perspective and came to a correct conclusion and the order passed by the Trial Court does not warrant inference by this Court. Hence, the learned Special Public Prosecutor prayed for dismissal of the appeal.
6. Considered the rival submissions made by both sides and perused the typed set of papers.
7. The first appellant/Kuppusamy was appointed as Lower Divisional Clerk in the Customs Department in the year 1956 and he was promoted as Preventive Officer in the year 1974. The check period is between 01.01.1980 to 31.08.1985. It is the case of the prosecution that the first appellant/accused had amazed wealth disproportionate to his known sources of income to the tune of Rs.2,28,682.86/-. On 31.08.1985, the search has been conducted and the case was registered on 19.09.1985 in RC.56/85 under Section 5(2) r/w 5(1)(e) of PC Act, 1947. After investigation, the chargesheet has been filed. It is an admitted fact that the first appellant was possessing some ancestral property. The first appellant/accused parents viz., Seshadri and Kalyaniammal had four daughters viz., Mythili, Vatchala, Padma, Prema and three sons viz., Kuppusamy, the first appellant herein; Ranganathan/P.W.12 and Vijayaraghavan.
At this juncture, it would be appropriate to incorporate the genealogy of the appellant family.
8. The first appellant/accused Kuppusamy had a wife and a daughter. P.W.12/Ranganathan, brother of the first appellant/accused had a wife and a son. Vijayaraghavan, another brother of the first appellant/accused had a wife and four daughters. P.W.12/Ranganathan was working as Scientific Assistant in Regional Meteorological Department, Nungambakkam and D.W.1/Seethammal, wife of P.W.12/Ranganathan was working as draughtsman in TWAD. Vijayaraghavan was engaged in rice business and his wife Indira was engaged in saree business.
9. The learned counsel for the appellants would submit that the first appellant had purchased a property of 1 ground and 794 sq.ft., for Rs.25,600/- after obtaining prior permission from the authorities concerned. To purchase the said property, the first appellant/accused had obtained a hand loan of Rs.10,000/- from his brother P.W.12/Ranganathan and the balance amount of Rs.15,600/- was from his savings account.
10. As per the statement of accounts given by the first appellant, during the check period, known income of the first appellant/accused is Rs.90,250/- and the income derived out of the undivided family properties is Rs.1,86,984/-. Further, during the check period, the total income earned by P.W.12/Ranganathan and his wife D.W.1/Seethammal, Vijayaraghavan and his wife Indira is Rs.3,21,873/- and the income derived by the first appellant's wife viz., Prema is Rs.30,584/-. Thus, the total income earned by all the members of the joint family adds up to Rs.6,29,691/.
11. As regards the expenses met out by the accused and his family during the check period is Rs.26,618.48 towards domestic expenses, Rs.2,803/- towards the education expenses of the daughter of the accused, Rs.262/- towards T.V license fees, Rs.20,758/- towards property tax of HUF property, Rs.690/- towards the subscription of Peerless Insurance and Rs.12,300/- + Rs.9,920/- towards the interest paid to Egmore Benefit Society for the loan availed by HUF. Thus, the total expenditure incurred by the family of the accused adds up to Rs.73,351.48/-. Further, the conservative expenses of the family of P.W.12/Ranganathan is Rs.40,000/- and that of Vijayaraghavan is Rs.80,000/-. Thus, the total expenses incurred by the HUF adds up to Rs.1,93,351.48/-.
12. Thus, the balance amount that would be remaining at the hands of the accused is Rs.4,36,339.52/-. However, the Trial court had held that a sum of Rs.2,41,443.09/- is the disproportionate income and as per the chargesheet and the sanction order, the disproportionate income is Rs.2,28,682.86/-.
13. At this juncture, it would be appropriate to consider the decisions relied on by the learned counsel for the appellants. 13.1. In the decision reported in (1981) 3 Supreme Court Cases 199, State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, it was held that the defence has to prove his case by preponderance of probabilities. It is appropriate to incorporate paragraph 13 of the said decision:
13. That takes us to the difficult question as to the nature and extent of the burden of proof under s. 5 (1) (e) of the Act. The expression 'burden of proof' has two distinct meanings (1) the legal burden. i.e. the burden of establishing the guilt, and (2) the evidential burden, i.e. the burden of leading evidence. In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and that burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. The ingredients of the offence of criminal misconduct under s. 5(2) read with s.5(1)(e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the following facts before it can bring a case under s. 5(1)(e), namely, (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution, and (4) it must prove quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under s. 5(1)(e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under s. 5(1)(e) cannot be higher than the test laid by the Court in Jahgan's case (supra), i.e. to establish his case by a preponderance of probability. That test was laid down by the court following the dictum of Viscount Sankey, L.C. in Woolmington v. Director of Public Prosecutions. The High Court has placed an impossible burden on the prosecution to disprove all possible sources of income which were within the special knowledge of the accused. As laid down in Swamy's case (supra), the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income i.e. his salary. Those will be matters specially within the knowledge of the public servant within the meaning of s.106 of the Evidence Act, 1872. Section 106 reads:
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
In this connection, the phrase the burden of proof is clearly used in the secondary sense namely. the duty of introducing evidence. The nature and extent of the burden cast on the accused is well settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability.
There in no quarrel over the said preposition.
13.2. The next decision relied on by the learned counsel for the appellant is reported in 2006-1-L.W.(Crl.).421, T.Subramanian v. State of Tamil Nadu, wherein it was held that mere receipt of amount will not be sufficient to fasten guilt under Section 5(1)(a) or 5(1)(d) in the absence of any evidence of demand and acceptance of the amount as illegal gratification. However, the said decision is not applicable to the facts of the present case because the present case relates to the guilt under Section 5(1)(e) of the Prevention of Corruption Act.
13.3. In the decision of this Court reported in the case of D.Vedagiri in Crl.R.C.No.154 of 1982, it was held that under Section 5(1)(e) of the Act, it is not merely the possession of the property disproportionate to the known sources of income that constitute an offence, but it is the failure to satisfactorily account for such possession that makes the possession objectionable and offending the law. It is appropriate to incorporate paragraph 7 of the said decision:
7. In the present case, the date given by the petitioner are as follows:-
Income Rs.1,85,714.25 Expenditure Rs. 53,018.50 (and) Assets Rs.1,34,518.77 The respective figures arrived at by the Investigating Officer on the basis of which he filed the report under Section 173, Criminal Procedure Code, are Income Rs.1,52,109.74 Expenditure Rs. 82,057.65 (and) Assets Rs.1,64,331.71 Though the Investigating Officer on two occasions had the opportunity of examining the petitioner and put questions on the specific items of income, expenditure and assets either disclosed by the petitioner or discovered by him, at no point of time he informed the petitioner that as per his investigation the total assets possessed by the petitioner were worth Rs.1,64,331.71 and his likely savings was only Rs.70,452/- and that he found an excess of Rs.93,880/- and called upon him to explain the excess. On the face of it, the report filed by the Investigating Officer does not disclose that he has satisfied himself that this essential ingredient of the offence has been found to be present. On account of this failure, the investigation is not complete. 13.4. In the decision of this Court made in the case of G.Malliga Selvaraj v. State, dated 14.09.2006, it was held at paragraph 26 as follows:
26. In a case of this nature, where allegations are made against the public servant that he had assets disproportionate to the known sources of his income, the duty of the Investigating Officer is as follows:
(i) The Investigating Officer should assess the value of the assets of the public servant immediately prior to the check period with relevance to the tax Returns of the concerned person and also loans and other incomes available to the person and also about the liability of the person prior to the check period.
(ii) The actual income during the check period and the expenditure actually incurred by the public servant should be calculated without any inflation and on a reasonable basis.
(iii)The total income during the check period and assets prior to the check period must be taken together as the total assets of the public servant from which the actual expenditure and amounts saved either by cash or by properties must be deducted from the total amount and see whether there is much disproportion to the known sources of income of the public servant and the assets on his hand. While making the calculation regarding the value of the properties and expenditure a reasonable margin has to be given this way or that way to find out the truth. Such kind of procedure to be adopted only by an unbiased Investigating Officer. There should be no suppression of income or under estimation of the income of the accused or inflation of the expenditure or inflation of the assets of the accused.
(iv) The Investigating Officer should not suppress any of the income, by way of loan or gift while considering the income of the public servant.
(v) Similarly after finding out that there is any disproportionate wealth in the hands of the public servant beyond his known sources of income, the accused must be given an opportunity to explain the same. Failure to give an opportunity to the accused to explain the same is fatal to the prosecution. However, the above decision does not hold good because as per the decision of the Constitution Bench of the Hon'ble Apex Court reported in (1991) 3 Supreme Court Cases 655, K.Veerasami v. Union of India & Others, at the time of registering the case, no explanation is mandatory and the accused is entitled to furnish the particulars at the time of trial.
13.5. The learned counsel also relied upon the decision of the Hon'ble Apex Court made in the case of D.S.P., Chennai v. K.Inbasagaran, dated 07.12.2005, wherein it was held that the burden is on the accused to offer plausible explanation. It is appropriate to incorporate the relevant portion of the said decision:
The burden is on the accused to offer plausible explanation and in the present case, he has satisfactorily explained that the whole money which has been recovered from his house does not belong to him and it belonged to his wife. Therefore, he has satisfactorily accounted for the recovery of the unaccounted money. Since the crucial question in this case was of the possession and the premises in question was jointly shared by the wife and the husband and the wife having accepted the entire recovery at her hand, it will not be proper to hold husband guilty. But the above citation is not applicable to the facts of the present case because in the given case on hand, the first appellant/accused has not given plausible explanation for the investments made by him during the check period in the name of his wife/Prema and daughter/Subathra.
14. Per contra, the learned Special Public Prosecutor appearing for the respondent would rely upon the decision of the Hon'ble Apex Court reported in (1991) 3 Supreme Court Cases 655, K.Veerasami v. Union of India & Others, wherein it was held that at the time of registering the case, no explanation is mandatory and the accused is entitled to furnish the particulars at the time of trial.
Thus, as per the above decision, no explanation is mandatory at the time of registering the case and the accused is entitled to furnish the particulars at the time of trial. In the instant case, the first appellant/accused has filed written statement at the time of questioning under Section 313 Cr.P.C, wherein he had stated that he alone managed the joint family properties as kartha and received the income from the HUF properties and also the salary of the earning members of the joint family.
15. Considering the facts of the present case in the light of the above decisions, it would be appropriate to consider the documents to calculate the income of the first appellant/accused. P.W.11/Dass, who was working as Accounts Officer in the Customs Department was examined and through him Ex.P.35/Pay and Allowance particulars and Ex.P.36/O.T. Allowance payment particulars of the accused were marked. As per Ex.P.35 and Ex.P.36, during the check period, the total income of the accused is Rs.84,045.10/-, the total deductions is Rs.18,254/-, amount received as advance, arrears and bonus amounts to Rs.6,030.20/- and the amount received for overtime work is Rs.5,606.30/-.
16. P.W.9/Sundaram, who was working as Assistant Director in Statistics Department was examined and through him Ex.P.31/Statement was marked. As per Ex.P.31, the total expenditure for a family during the check period would be Rs.29,794.52/-.
17. It is an admitted fact that the first appellant/accused has furnished the Ex.P.32 (series)/Property statement from the year 1975. As per Ex.P.32, as on 01.01.1975, the first appellant/accused has mentioned that he is having 1/8th share in the house property at Kuppiah Chetty Street, West Mambalam; 2 acres of land at Madipalli Village, Nagari, Chitoor District and his wife, M.S.Prema is having 1/3rd share in the Chithalapakkam Village house and 12 acres of land in the same village. The very same properties were shown in the statement as on 01.01.1976. However, in the statement given on 01.01.1977, he has stated that his wife owns 1/3rd share in 24 acres of land in Chithalapakkam Village and it was acquired by inheritance from grandfather of his wife and 1/3rd share in the housing property at Tambaram. But from the year 1982, he has not shown the housing property at Tambaram as the same was sold by the family of his wife. In the statement of the year 1982 and 1983, the first appellant/accused had shown only the 1/8th share in the house property at Kuppiah Chetty Street, West Mambalam; 2 acres of land at Madipalli Village, Nagari, Chitoor District and his wife has got 1/3rd share in the Chithalapakkam Village house and 24 acres of land in the same village. Further, in the statement of the year 1984, the first appellant/accused had shown only 1/8th share in the house property at Kuppiah Chetty Street, West Mambalam and that his wife has got 1/3rd share in the Chithalapakkam Village house and 24 acres of land in the same village. Admittedly, the two acres of land at Madipalli Village, Nagari, Chitoor District has not been mentioned in the statement of the year 1984. Though, it was contended by the first appellant/accused that the property at Madipalli Village, Nagari, Chitoor District was sold in the year 1982 (September), no documents have been filed to show how much amount was received by him in the year 1982, out of the sale proceeds of the said property.
18. Thus, the categorical admission of the first appellant/accused in his statement is that much prior to the check period, he was having 1/8 share in his ancestral property. In such circumstances, it is painful to accept that he alone is managing the HUF property as its kartha. So, I am of the view that the Trial Court has rightly held that the first appellant herein has not filed any document to show that he is the kartha of the Hindu United Family and he has received the income and salary of other members of the family.
19. It is pertinent to note that as per Ex.P.69/Memorandum of issue of fixed deposit, till the year 1982, the first appellant herein has deposited only Rs.1,000/- in Tamil Nadu Mercantile Bank. However, from 15.04.1984 to 14.08.1985, the first appellant/accused had deposited 2,36,000/- which is evidenced by Exs.P.27, P.28, P.65, P.66, P.4, P.5, P.2, P.3, P.14, P.15, P.16, P.17, P.18, P.19, P.59, P.60, P.61, P.62, P.51, P.52, P.76, P.20, P.54, P.48, P.49, P.50, P.63, P.64, P.27, P.6, P.77, P.71, P.72 ,P.73, P.74, P.70, P.40, P.44, P.45, P.46, P.7, P.8, P.9, P.10, P.11, P.12, P.13. Thus, nearly in the period of one year and four months, the first appellant/accused had amazed wealth disproportionate to his income during the relevant period. Admittedly, no property was sold during the period. Even as per his property statement, the property at Nagari, Chitoor District was sold in September 1982. It is also appropriate to consider Ex.P.32 (series)/Property Statement as on 01.01.1981, wherein corresponding to the fourth item, the property at Mahalakshmi Street, Tambaram East, he has stated since sold by the family members of his wife. So, it meant that the property was sold in the year 1980. However, no amount has been deposited by the first appellant/accused during the corresponding period and no sale deed has been filed to show what is the sale proceeds and how much amount was inherited by the wife of the first appellant/accused. Furthermore, the appellant has not filed any document to show what is the sale proceeds from the property at Nagari, Chitoor District. It is contended by the appellants that till the mother of the first appellant was alive, she was managing the property as kartha and after her death in the year 1983, the first appellant was managing the property as kartha. Even assuming it to be so, the first appellant has not deposited any money from May 1983 to 31.03.1984. Only from 15.04.1984, the first appellant/accused had started depositing huge sums of money in the name of his wife and daughter. So, it would falsify the case of the appellants that the first appellant/accused was receiving the income from the HUF properties and salary of other family members as kartha, after the death of his mother.
20. It is also pertinent to note that the entire deposits were made in the name of Prema, the wife of the first appellant/accused and Subathra, the daughter of the first appellant/accused. But as per Ex.P.32, the first appellant/accused had stated that the property at Nagari, Chitoor District was sold by the family members. At this juncture, it is important to note that as per Ex.P.26/letter dated 27.08.1986 issued by the Egmore Benefit Society Limited, the property at No.23, Kuppiahchetty Street, Madras had been mortgaged on the following dates:
(i) On 13.09.1972, it was mortgaged for Rs.15,000/-
(ii) On 08.03.1976, it was mortgaged for Rs.30,000/- (At the time of granting this loan, the amount outstanding in the earlier loan account was recovered and the balance loan was paid to the party.
(iii) On 16.07.1980, it was mortgaged for Rs.16,000/- (Amount due as on 30th August 1985 was Rs.6,080/- subject to the adjustment of R.D. account which is linked with the loan) Thus, the total amount of interest paid in this account as on 30.08.1985 was Rs.12,300/- and the R.D. amount at credit as on 30.08.1985 was Rs.9,920/-
21. The above extract would reveal that even though the first appellant/accused had deposited huge sums of money in the name of his wife and daughter, he has not cared to redeem the mortgaged property i.e., Joint family property. This would also falsify the contention that the first appellant/accused was managing the properties as kartha of the family.
22. Further, as per Ex.D.1 and Ex.D.10 (series)/Rent Receipt Books, there is no evidence to show how many portion has been rented out and what is the annual income derived from them. Once a charge has been framed for disproportionate wealth, it is the duty of the public servant to give the particulars of income during the check period. But the first appellant/accused has not given any particulars with regard to the income derived out of advance amount and rent from each tenant. Only the counterfoils of the rent bill has been filed. Furthermore, the tenants who had paid the rent and received the receipts had not been examined before the Trial Court. The rental agreement has also not been filed. So, the Trial Court has taken into consideration of all the above aspects and came to a correct conclusion that there is no evidence to show that the first appellant/accused had received the rental income to the tune of Rs.1,14,484/- and that he received an advance amount of Rs.29,500/-. Further, the respondent/CBI has taken into consideration of Ex.P.32/Property statement furnished by the first appellant/accused and calculated 1/8th share of the total income till the mother of the accused was alive and thereafter, calculated 1/7th share in the total income from the joint family properties. As already stated, it is the duty of the public servant to give plausible explanation for the sources of income derived by him. However, the first appellant/accused has failed to prove that the entire income of the HUF was received by him as kartha and he was managing the same.
At this juncture, it would be appropriate to tabulate the advance amounts received from the tenants of the HUF properties on various dates, as per the statement made by the first appellant/accused on 03.09.1986. Tab - 1 Date Amount Received Name of Tenant 16.10.1980 Rs.5,000/-
K.Paramasivam Indhu Sweets 22.02.1981 Rs.5,000/-
E.Sivaramakrishnan Meenakshi Stores 11.10.1980 Rs.4,000/-
Ramadoss Jayanthi Tailors 27.08.1980 Rs.4,000/-
M.E.Abdul Wahab 08.02.1981 Rs.4,000/-
M.Abu Bucker 21.08.1990 Rs.2,500/-
P.Ramachandran 30.10.1980 Rs.5,000/-
N.D.Batcha Thus, the total advance amount received is Rs.29,500/-
As per the evidence of P.W.12/Ranganathan, the total rental income derived from the HUF properties is Rs.1,36,000/-. The 1/8th share is 17,000/- and after the death of his mother, even if it is taken as 1/7th share, it is only Rs.19,428.57/-
23. Even though during the course of the investigation, the first appellant/accused had produced the xerox copies for receipt of rents and advances, which was tabulated above, it amounts only to Rs.29,500/- and the same was received in the year 1980 81. At this juncture, it would be appropriate to tabulate the investments made by the first appellant/accused in the name of his wife and daughter.
Tab - 2 Date Name of Depositor Document No. Bank Amount Total amount deposited in a month 19.02.1982 Kuppusamy P69 TN Mercantile Bank 1,000/-
February 1982 1,000/-
15.04.1984 Prema P27 Egmore Benefit Fund 2,000 April 1984 2,000/-
21.05.1984 Prema P27 Egmore Benefit Fund 2,000 May 1984 2,000/-
09.07.1984 Prema P28 Egmore Benefit Fund 4,000 : 4,000 14.07.1984 Prema P28 Egmore Benefit Fund 1,000 : 1,000 July 1984 5,000/-
01.10.1984 Prema/Subathra P65, P66 S.B.I 1,000/-
October 1984 1,000/-
22.11.1984 Prema/Subathra P4, P5 I.O.B 10,000/-
November 1984 10,000/-
07.12.1984 Prema/Subathra P2, P3 I.O.B 10,000/-
17.12.1984 Prema/Subathra P14, P15 Canara Bank 5,000/-
17.12.1984 Prema/Subathra P16, P17 Canara Bank 8,000/-
December 1984 23,000/-
11.01.1985 Prema/Subathra P18, P19 Canara Bank 20,000/-
25.01.1985 Prema/Subathra P59, P60 S.B.I 8,000/-
25.01.1985 Prema/Subathra P61, P62 S.B.I 3,000/-
January 1985 31,000/-
07.02.1985 Subathra/Prema P51, P52 Bank of Mathura 20,000/-
11.02.1985 Prema P76 Post Office 5,000 * 2 = 10,000 February 1985 30,000/-
04.03.1985 Prema/Subathra P20 Canara Bank 3,000/- (Deposit) 07.03.1985 P54 Bank of Mathura 20,000/- (Withdrawal) 07.03.1985 Subathra/Prema P48, P49, P50 Bank of Mathura 20,000/-
12.03.1985 Prema/Subathra P63, P64 S.B.I 5,000/-
12.03.1985 Prema P27 Egmore Benefit Fund 9,000/-
14.03.1985 Prema/Subathra P6 I.O.B 20,000/-
14.03.1985 Prema/Subathra P77 Bank of Baroda 10,000/-
14.03.1985 Prema/Subathra P71, P72, P73, P74 Bank of Baroda 1,000/-
18.03.1985 Kuppusamy P70 HSBC 1,000/-
21.03.1985 Subathra P40 Indian Bank 5,000/-
21.03.1985 Subathra P44, P45, P46 Indian Bank 15,000/-
March 1985 89,000/-
14.08.1985 Prema/Subathra P7, P8 Andhra Bank 9,000/-
14.08.1985 Prema/Subathra P9, P10 Andhra Bank 9,000/-
14.08.1985 Prema/Subathra P11, P12 P.N.B 20,000/-
14.08.1985 Prema/Subathra P13 P.N.B 5,000/- Savings Bank A/c August 1985 43,000/-
24. On mere comparison of Tab1 with Tab2, it is evident that though the first appellant/accused had stated that he received an income of Rs.29,500/- out of the HUF property in the year 1980 81, no deposits were made by the accused during the relevant period. Admittedly, the mother of the first appellant/accused died in May 1983. So, if he had taken over as kartha of the family and managed the joint family properties, it is not known why he had not invested any amount during the period from May 1983 to March 1984. Only from 15.04.1984, the first appellant/accused had deposited huge sums of money in the name of his wife and daughter and in some cases, in the joint names of his wife and daughter. It is pertinent to note that during the check period, as per the evidence of P.W.12/Ranganathan, the total rental income is Rs.1,36,000/-, whereas the deposits made by the first appellant/accused amounts to Rs.2,37,000/-. Further, it is also painful to accept that first appellant/accused, as kartha of the joint family had invested all the income derived from the joint family properties in the name of his wife and daughter, even though the other family members, viz., P.W.12/Ranganathan was having a wife and a son and another brother Vijayaraghavan was having a wife and 4 daughters. Not even a little amount of money had been deposited in their names.
25. At this juncture, it would be appropriate to consider the investments made in the year 1984. Date Document No. Bank Amount Name of Depositor 15.04.1984 P27 Egmore Benefit Fund 2,000 Prema 21.05.1984 P27 Egmore Benefit Fund 2,000 Prema 09.07.1984 P28 Egmore Benefit Fund 4,000 : 4,000 Prema 14.07.1984 P28 Egmore Benefit Fund 1,000 : 1,000 1,000/-
Prema 01.10.1984 P65, P66 S.B.I 1,000/-
Prema/Subathra 22.11.1984 P4, P5 I.O.B 10,000/-
Prema/Subathra 07.12.1984 P2, P3 I.O.B 10,000/-
Prema/Subathra 17.12.1984 P14, P15 Canara Bank 5,000/-
Prema/Subathra 17.12.1984 P16, P17 Canara Bank 8,000/-
Prema/Subathra From the above tab, it is evident that the first appellant/accused had invested a sum of Rs.23,000/- in the month of December 1984 alone. However, as per Ex.P.35, the basic pay of the first appellant/accused in the month of December 1984 is Rs.580/- and total pay is only Rs.1564.70/-. Further, no rent/advance receipts were produced to show that during the relevant time he had received income from the HUF properties.
26. Now, it would be appropriate to consider the investments made in the year 1985.
Date Document No. Bank Amount Name of Depositor 11.01.1985 P18, P19 Canara Bank 20,000/-
Prema/Subathra 25.01.1985 P59, P60 S.B.I 8,000/-
Prema/Subathra 25.01.1985 P61, P62 S.B.I 3,000/-
Prema/Subathra 07.02.1985 P51, P52 Bank of Mathura 20,000/-
Subathra/Prema 11.02.1985 P76 Post Office 5,000 * 2 = 10,000 Prema 04.03.1985 P20 Canara Bank 3,000/- (Deposit) Prema/Subathra 07.03.1985 P54 Bank of Mathura 20,000/- (Withdrawal) 07.03.1985 P48, P49, P50 Bank of Mathura 20,000/-
Subathra/Prema 12.03.1985 P63, P64 S.B.I 5,000/-
Prema/Subathra 12.03.1985 P27 Egmore Benefit Fund 9,000/-
Prema 14.03.1985 P6 I.O.B 20,000/-
Prema/Subathra 14.03.1985 P77 Bank of Baroda 10,000/-
Prema/Subathra 14.03.1985 P71, P72, P73, P74 Bank of Baroda 1,000/-
Prema/Subathra 18.03.1985 P70 HSBC 1,000/-
Kuppusamy 21.03.1985 P40 Indian Bank 5,000/-
Subathra 21.03.1985 P44, P45, P46 Indian Bank 15,000/-
Subathra 14.08.1985 P7, P8 Andhra Bank 9,000/-
Prema/Subathra 14.08.1985 P9, P10 Andhra Bank 9,000/-
Prema/Subathra 14.08.1985 P11, P12 P.N.B 20,000/-
Prema/Subathra 14.08.1985 P13 P.N.B 5,000/- Savings Bank A/c Prema/Subathra
27. From the above tab, it is evident that the first appellant/accused had deposited the following amounts:
(i)In the month of January 1985, a sum of Rs.31,000/-
(ii) In the month of February 1985, a sum of Rs.30,000/- (including two NSC bonds in the post office, each for Rs.5,000/-)
(iii) In the month of March 1985, a sum of Rs.89,000/-
(iv) In the month of August 1985, a sum of Rs.43,000/-
All the amounts were deposited in the name of the first appellant/accused's wife and daughter, except a sum of Rs.1,000/- which was deposited in the name of the first appellant/accused in HSBC Bank, as evidenced by Ex.P.70.
28. It is not the case of the first appellant/accused that he had sold the property during the relevant time. As per Ex.P.32/Property Statement, in the statement of the year 1983, the first appellant/accused had specifically stated that the property at Nagari, Chittoor District was sold in September 1982 by his family members. Further, in the statement of the year 1981, he had stated that the house property in Tambaram was sold by the family of his wife. In such circumstances, there is no scrap of paper before this Court to show that the first appellant/accused was having source for a sum of Rs.1,93,000/- in the year 1985 for making deposits. Hence, I am of the view that the first appellant/accused has not given plausible explanation for the disproportionate wealth.
29. The learned counsel for the appellants also mainly focussed on the evidence of P.W.12/Ranganathan and D.W.1/Seethammal, who are the brother and sister-in-law of the first appellant/accused. The evidence of P.W.12/Ranganathan and D.W.1/Seethammal was falsified by the letter dated 25.05.1985 given by P.W.12/Ranganathan which finds place in Ex.P.34/file. So, the evidence of P.W.12/Ranganathan and D.W.1/Seethammal that the entire income of the joint family would be handed over the first appellant/accused is not acceptable. So, applying the dictum of Res ipse loquitur, the facts itself would speak that the evidence of P.W.12/Ranganathan and D.W.1/Seethammal is not trustworthy. So, the argument advanced by the learned counsel for the appellants in this regard does not merit acceptance.
30. As per the charge, the first appellant/accused was in possession of assets disproportionate to his known source of income as on 31.08.1985 to the extent of Rs.2,28,682.86/-. The total value of the assets held by the appellant as on 01.01.1980 Rs.9,455.19 The total value of the assets held by the appellant as on 31.08.1985 Rs.3,38,671.47 Income during the check period Rs.1,39,629.60 Expenditure during the check period Rs.39,096.18 Assets acquired during the check period Rs.3,29,216.28 Savings during the check period Rs.1,00,533.42 Disproportionate Assets = Rs.2,28,682.86/-
31. On perusal of the Ex.P.34 (series)/file, it is seen that the first appellant/accused had sought for permission from the deputy collector of customs to purchase 1 ground and 798 sq.ft of land at Survey No.70 of 136, Adambakkam Village within Alandur Municipality vide his letter dated 25.05.1985, wherein he had stated that Rs.15,600/- was made out of his savings and Rs.10,000/- was obtained as free of interest from his brother P.W.12/Ranganathan, who was working as Assistant Meteorologist in the Regional Meteorological centre. After verifying the same only, the permission was granted on 31.05.1985. The acquiring of the property vide sale deed dated 06.06.1985 was also intimated through his letter dated 13.06.1985. When that being so, having been satisfied with the documents and accorded permission for purchase of the property, the same cannot be construed as disproportionate wealth. However, on perusal of the charges, the purchase of the property has not been specified and only the deposits were mentioned.
32. Taking into consideration of the above aspects, I am of the view that the Trial Court has rightly held that the first appellant herein has not given plausible explanation for the deposits made in the name of this wife and daughter for the period from 15.04.1984 to 14.08.1985 to the tune of Rs.2,35,000/-. So, the Trial Court has rightly held that the first appellant/accused is guilt under Section 5(2) r/w 5(1)(e) of Prevention of Corruption Act, 1947 corresponding under Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988. Hence, the judgment of conviction imposed by the Trial Court does not warrant interference by this Court and the same is hereby confirmed. However, since the first respondent/accused had died, the present Criminal Appeal stands dismissed as abated.
25.03.2015 pgp Index : Yes / No Internet : Yes / No To
1.learned Additional Special Judge for CBI Cases, Chennai
2.The Public Prosecutor, High Court of Madras
3.Record Keeper, Criminal Section, High Court of Madras R.MALA, J.
pgp Pre-Delivery Judgment made in Crl.A.No.344 of 2005 Dated : 25.03.2015