Karnataka High Court
Sripada Gouda S/O Ranganna Gouda ... vs State Of Karnataka on 22 March, 2012
Ps 'FlIP 111011 COT RI 01 K4RNA
TAK
(IRC UI F I3LNCTT Al DI-IARWAt)
DAtED rrts nw U 'DAI or MARC II 2012
131sT ORE
TIlE I 1ONE1Y MRJ I'S I'lC'E K.N .KF
SHAI ANARAYANA
LRLA.NuJ 170 Oj 2Q96JD
BETWEEN.
Srlpada Gouda,
Sb Ranganna Gouda Bahadur De
sai
Aged about 63 yen.
Presuitly Residing it
Kalghattigc Road.
Near lila3a Bank
Dhan ad- 580 002
ppeIIant
IB SiuShankat £ Hegdv icr M Sin ii
•%qsoc iate',. Advocau 'i H.gcle &
I
AND.
State at Ha; flat 1
'tin
I3 Karn€d ski Iii 2 ik Ii
1 oliec 9k tic 'u
T)hary dci
rrfflt4C1t td l's S c 1- ii ii Pt' 't' t r
Iligli Cou I )f HF y 1"ikt Ist,1 Iuts.
'-3.
11
, . 1 re
•f -hr' Ls
•B S, J i-i ritil. t
C.
I
1111% Cilminal App
Cr P C react iith eal is filed under S
ection 7 1 (2)
Section 27 of th
Corruption Art ag e Pm ention ol
ainst the judgmen
passed by the Pri t dated 12 6 2006
ncipal Session', an
Dharwad iii Special d Spe
(S C') CC No.13, 19 cial Juds&c.
tin appellant/accu 91. convicting
sed fur the oflence
Section 13(l)(e) punishable under
read with Section
Pm mt ion of Corru 13 (2) of the
ption Act. 1988 an
to undergo R I. fo d sentencing him
r three years and
Wi 3.89.000/- for to pay fine of
the offence punish
13(1) (e) read 'ilth able under Section
Section 13 (2) ot th
Corruption Act 19 e Prevention of
88.
This appeal comin
g for further hearin
day. tii court delive g on this
re d thu follow ing:
.JL'DQME £
This appal N b' the i.cruserl
igamst tl
;udgincnt of .c in
irtrn' and ordei
01 sentciic clalt d
12.6.200b p;s il
b3 !1c Pnrnipal Sts
.iai ir.ci Sptclai
Itacke Dhanad
r Siecit (S
) C ( No 13' 1
otn ictnz he app'
11d'Ll it (uSC cl I',' tl
it c ficnc
p1 ini%lI i1l
i xml i ,t c ton 1 .41 (e)
r/v' S non . 3(2)
o'
li r •'eit on
of( onur'n,. \r
9S, (in • ( lb
S •I'%
) tIC.. 'c 'urn ' nth1 ut C'. • ' ta ii
impri'nnmeni foi 3 veai and to pay hut' of
R, 3, Sf) .000/ fo
r the aforesaid offe
nce'.
2T'hc appellant wa
appointed in Hubli
Dharwacl
Mumcipalitv as a
Surveyor on 1 7.
1966. Later he was
promoted as a Ju
nior Engineer an
d ultimately retired
from service oui 30
.3. 1994.
3. According to 11w
case of tlw proset'utioii. (\\7
1
Y.V. Patil. Police In
spector, Lokavukt
ha Police Station
[)harwad. by 2.2.
1989 received ci ed
ible information
that the appella
nt ac used has
amassed wealth
dNpropornollatt
to his known soui
of inc omc by
me ans f non opt
at U 1t1 On 22. 1989, CW
.
I obtained a ccaruh wit rant an d conducted scar er 'n I be Itouse of ii tnt on 2 2 f)% ii ih i t net ol tL a 1 and sciz d i1 im i1 -i imnr 1 (hR th 1 a dem c from tin 1miis of ipp U ii t ii t U tha' U pp I i irir .
4and a daughter who were studying In %chcxils and he has got 5 brothers who had no landed properties In Agadl Village or elsewlien: tha t on plot bearing NO.14089/13 and l'lOSS situ ated In Rajatgirl on Kalghatagl Road. the accused has constructed ground floor of the house In 1980 measu rIng abot it 10 squares and first floor hi the year 1998 ap art from a out house built In the year 1978-79 and the approximate value of the house as well as the out hou se was more than 3 lakhs; that the appellant has purcha sed a Manithi car in the name of his wife on 14 12.198
8. the approximate v'ilii.' ol which is about Rs MO,000/ that he has alo .
inainnined i scooter cc,st of whIch was about Rs 0 0001 HF, im estigation wvealed that lie arcu cd ht a,'els 4)1 in'r i lid a r&3.?(0(A/ 4111 tu r rat unoit if - cgt, mo npcndtirt is t) thc xt.-it nf R 6120' / •q 1' t fl 'nit t wn thi 4lan in' rt--iy 5 Rs.2.80,000/ and thuq he owns surplus asstt voflh Rs.3.32000/ . On that basis, the investigation was continued tncI after getting the lnuno aNt propenles and other assets held by the appellant accused.
assessed by compel cut persons.
the ln estigatmg Officer found that during the period fro m 1.7.1966 to 2.2. 1989.
the assets acquired by the accused was worth Rs. 10.38.029/- and the expend iture Incurred by him during that period was Rs.2.5 L.775.64 palse and his total Income from all sources wa s Rs.3.86. 137.27 palse and thereby came to the conclu sion that the appellant accused has 9ma%sed ass ets to tht tune of Rs 9 03 66? 56 paise In excess of knoni sources of Income which iAoiks nit to 234 °. flu de'tail% worked 3 ihc lu e ti,atij Officci n t ti In i ea h me onclus r,n is titici 'i.
a'.
6 Figure arrived particulars by the LO L 4 in Rs. Assets -O0 fcNo,4178 oioo-o0 -- Car Lioi oo .i.uua and Kinetic -r H - 9 OO O9 - Swift - .plot No.19 - 9500-00 4 ó - * -- -- -- Th 7. Indira Vikas Patra -- -- -- -- -- 250-00 8. Shares in Co - 3060-0O -- 9. MembershiP fee' 5.606 00 and deposit in Ca eratiyccic 2 o tY 10. Deposit s in the iöööö-0 names of wife agter - 11 LIC Premium - 12. Bank Balan(e 13 Household arti(i 59l-00 - I 4,Har1d10 - - - a1Sg i2,00 by I he accused Tot al Assets 10 38.02') 20 7
Veritiable Expvnclit tire I Stamp dunes 388350
2. Penalties paId 10 -- :i.ooo.oo HDMC
3. I)omcstk' 1,02302.00 Expenditure
4. ElectricIty - 1.523:20 Charges
5. Telephone charges 11,080.30 T
6. Education -
-
14,971.00 Expenses
7.BankLnekerRentt 925.00
8. Dogs Maintenance 3,15000
9. Payment of House 5.497. 54 mx ' j
10.Sta]lRent - 19,20000 ill HouqcRentPaid -- 12 6000 12 Vehicks 43M5 (Ni M ut i rnial 1.t2M77.r4 1• I S 8 Nn enlia1e EXpendftUrc I Mcdii al Expenses 4,50OO0 2 Religious functions 9 000 00 And ceremonies Pxp nses over / 00 00 cosmetics 4 Expcnse oei cloths 12 f00 00 4, Intertainment 7,500,00 Expenses
6. Wages paid to 4 9,90000 servants 7 Newspapaers & 6,468 7 Magaiines S Fuel and cooking gas 4,500,00 9 Interest paid on 4,157 60 loans rotal 66026 35 Total of 'ilI three heads 12,86 731 89 lncorn from P oved Sot rce ar(1 uuirs 3 Figinxs 1d procd in Rs Sala 03 3098 Hous Building Adi anc 20 000 Of 3 Refnger itor P an 800 00 IDMC Co op So e I n r 000 00 od i 0)00 C i1cpoed 1 0 Of Emit r 44 ti c c ) c i C a C) Thereafter. the Investigating Officer issued notices to the appellant and nilleci upon him to furnish his explanation as to the assets acquired by him disproportionate to his known sources of income. In reply to the same the appellant submitted his detailed explanation as per Ex.D.4 wherein lie inter alia contended that the valuation made by the Investigating Officer regarding the house property is excessive; that since his father was running a cement agency business and since he owned a lorry in the name of his wife, cost of construction should have been reclined by aileast 35°n is against the st3ndard nt s fixed by PWD: that his family owned large exit-nt of agricultural lands and nthci properties at d br the purposc of construe loll, his Jr lit i hc I nti but d aipc cx au of am U) n ) bit ']flhls.itioij o 1w oint tlt-i i' t d lrnnt p.
ri iii I' ocr n 9 t 1 ( fle it cci
;'u', Ii 'ut'- tP'C(iIiiit h tilt ' ' siu.&'tmnt Cull. r'
1
ir mSii
I
I0
doinestk' expenditure assessed by the Investigating Officer is highly exaggerated: that his font riiutioii to the domestic expenses was hardly about 60°o whereas the remaining amount was being contributed by his father and wife from out of the inrome derived by them from the businesses run by them: that aluation of the household articles Is also excessive and that majority of the house hold articles have been purchased from out of the income derived by his father and wife from their businesses: that during this check period, he for himself and on behalf of his family memix rs namely father brothers and sisters as their power of attorney holder haul s Ad several plots held b thUr family and had ec'tied h igc amounts o mcans rhequc.c 2nd lemar I draft', whKh ha e is--en tic ciltf ci to lii' Bank 'eco' mt a' lu n tn do rer sc I ft ni e'titatitiç Oflit C dui nu the M .irc_i 'if hi hon e- ant' C ifl %pIic ni tnr sqi - rh-"--. ne tue , it t' rrd I;
'nm I C 11 have not been taken into account Thus enrding the cxplanation of the appellant lie had not at quired any iss t by means of c ocr upt a th ities nor he possr ssed asset disproportionate to his known sources of income Howe er, the Investigatine Officer not being satisfied with the explanation regarding the valuation of flit house and other immovable properties and not accepting the contention of thc appellant with regard fr the rec eipt of large extent of money from sale of the plots and other properties on account of non chselosure of those cc eipts in his annual Assets r d I iabihty statemcnt viii ii o ight to havc beer sub nitted ft the 1ia ipima y uth nty after taLn1n e arv mcI r o c cc ilio I c ii c or e Icr y 12 4 Upon scrviee of summons, the appellant appeai d before the learned Special Judg and pleaded riot uiltv for the ( harges Ie\ elk d aaint him and claimed to be tried. The prosecution iii order to bring home the guilt of the accused. exairuimed PXVs. 1 u> 52 and relied on documentary evidence as per ExsP. 1 to P.190, During his examination under Section 313 Cr.PC, the accused denied all the incriminating circumstances appearing against him iii the evideimc'e of the prosecution witnesses. By way of defence. he examined hinisell as DXV. 1 and also relied on documentary evidence m irked as F xs,I). 1 tc D 16 in his x idc n he n itt rated th st md ak n by him ir hi' explariatior ExD 1 1 loxi ev r h learn d Spccai JLidem art r I eJfi1IC oi h ici .111(1 lIt JSeSSflflI 01 oral a xx II '- ior unIc;itar' cx id ra c. i-id thai rh S( C di II has I ihi th list 4 1 ia' iiii 4 13 to an extert of RsRft 1R727 paice. Thc 1)asis on xvliicii the ltanwcI Sp.'tiai Jiidgr arrivud at tills liQurc is as under:
Figure arrived Particulars at by the Court as pros ed iii Rs.
LHouse Projrtv 4,53,456 00
2.PlotNo.4178 20,000-00
3. Car 6L1OPOO
4. Luna and Kijietic Swift 18,099-00
5. PlotNo,19 9,500 00
6. N.SCs. 4,320 00
7. Indira Vikas Patra 25000
8. Shares in Co 3.060-00 Qperative Society 9 Membership ftes 5M06 00 and deposit iii (o operative Society
10. Deposits in I he 10j.)00 00 names of vife and daughter 1 LIC PrcrnlunL I ),406 91
12. Bank Balarwe 927 29 I I I. I1oueIio1d '5.555 00 arti Ies
4. Ehnd loans i C i ytt 'ac is 14 Vei ii leExj nditure
1. Siamp dulies 3.$83.50
2. Penalties paid to HDMC 3,00000
3. l)omestic Expenditure 1 .02.302.00
4. Electricity Charges 1,523.20
5. Telephone Charges 11,080.30
6. Education Expenses 14.971,00
7. Bank Locker Rent 925.00 8 Dogs Maintenance 2,520 00
9. Pavrneni of house Tax 5,497.54
10. Stall Rent 19,200 00 Ii. House Rent Paid 12.760.00
12. Vehicles Maintcnaiice 4385 00 lolal 1.82.047.51 I. McdicaLperrses 4.500.00
2. Rc1igiou luiictiori-. 9.0000() And ccremoiiie'
3. Expenses ovri' 7,50C) (jo co,metics 4 Fxpçnses over cloths 12.500,00 4, Entertain merit 5.000.0() Expçnses h Wages paid to 00.00 servants 7 News papers & 3.000.00 Magazines
8. Fuel and cooking gas 4. 500 MO 9 Interest paid on 4,15760 loans Fotal Total of all three heads I 10,34,832 5QZ.00 54 Partn ulars Fiiures held as j()\ ed in Rs --
I Salary 2.03,730-98
2.ilouse Bui1dirgAxh awe 20.000-00
3. Retrigerator loan 3.800-00
-4 ilI)MC Coop Socicv Loan 5.000 00
. (void L.oai 10.000 00
6. of piot \o.90 93.000-00
7. OR aiflvUI1TtCeC1ed 4.145lO
N. Rein icceived 43.31000
9 Biok 1jItrt s u-ui 13089
tJ'0. 137 '17
16
5. As could be seen from the above. 1tli regard to
thy valuation ot the house property arrived at by 11w ln estigatiiig Officer, tIn learned Sptcial . Judgc allowt d a deduction of 2(Po by accepting tile contention of the accused that on account of the user of lorry as well as the cement in which his father was dealing and also self supervision, the cost of construction would be less by 20% than the standard rate He also gave a deduction to an e"ctent of 40°o with regard to the investment for the household articles being the investment from father and wife of the iccused lhe learned Special Judge also gave ieduetlon of R 25 000/ towards hand loan 'aid to have been givcn bi the acen,ed.
6. 11w kaiued Special .Judsa did lint inept tilt th Ieiiee ol (lit a( C used i(h icgard to ret C icing ldrgt eMelli '4 motiet IN %Ile 01 pInt' oil tin groujid ,h€ r 1 tli','i di tills ii.u _".i ii' ii tin mli• d i.b Iitk ':il I I I 17 superiors In the form of filing annual assets and liabilities statement as required by Conduct Rules a placing relianet on the explanation to Section 13(l)(e) of the Art. the learned Special Judge held that since those amounts have not bcen disclosed In the annual assets and liabifity statement for the particular years, the same cannot be taken as income from known sources, therefore, the learned Special Judge came to the conclusion that the accused has acquired asset to the extent of Rs.3.89,000/ over and above his known smirce of Income. In that vleu nf the matter. the learned Special Judge convicted the appellant accused for flit offencc pur ishablc i. idu Se 'ti r 3( 1)fr) r w Sec box 3(2) )f he Act an 1 scnten d urn t ittIpfl)fl1flCfl1 ciliLl 31St) tn pai iiie a' %rated snprri.
Uchig aggne ccl liv the said judamt lit. the appellant u 1 ('L ills lx low 'hi' Court in this appi al I 1 7 1 liavi' heard ili' hariwcl 'O1 iiiscl for the appellant and also the counsel appeariii& of the repcuidcn1 Loka\ uktha Police.
8. I have perused the judgmem tinder appeal and also voluminous records secured from the court below.
9. The contentions urged by the learned counsel for the appellant before this Court are as under' I hat the learned Special Judge though has allowed reductions to art extent of 20% with reference to the valuation of the hous property on the premise that the c oiistrucf ion as done by the accused under his self stll)erVislOfl l)\ uiilizin the lorry ownc(l 1w liin ni the name of his wife and a1o by utiiizin t ui' t't-'rncnl al llt'al)cf ate sjee I]1- latilel \V iedI1iU 10 (mcli! busincs'. iia. tailco w -
lcdu'ton te ail cxl' or 5t (il crelcci tile ipp'ilant nn t1i raitdai d 10 tt1 : he \k ) I ded ioi 0 i) t ii I 19
1 towards contrarl ors profit. l(Y'n on supeniclon 2°b 1 (p.
on curing. etc.. that the rejection of the defense of accused regarding receipt of Lii ge extent of monies by sale of plots, on the ground of non disclosure of those amounts receli ed by appellant at cused In the annual assets and liability statement as required by the Conduct Rule', Is bad in law for the reason that the explanation to Section 13(l)(e) of the Act of 1988 whIch Is found hi the Act of 1988 was conspicuously absent in Prevention of Corruption Act. 1947 and since the major portion of the check period was falling within the penod rhirhig nliir ii the old Act wa in nperatlon. thn ruin di,c losure c f ec c ipt f thost ncomc s n the annual Awls and I nbi iP statemcnt )ught r ot hate ieen 'ic%Qd %t I lOt l md thc Special o in ought to I C .lrfl-pt(il the '-mv- anti or' i-ijpr i)J%i% pnrrt th rl t') itt orcl tiit finding; that sinn 'lie appellant h€icl IL--rcivect all llI(.%4, aInu'In hi iIk'."I% '4 ' lKqurS and clrfltjn.j I (lrafts wliicti ere larer credited to his Bank accounts, it could not be said that they arc all una('('oilnted sums.
i lierefort failni ( on the part of the appellant to (I1SC1OSt receipts of said monies to the disciplniarv authorities by filing Assets and Liability statement alone could not be a ground to reject those incomes and if the said income is taken into account, there are no circumstances to hold that the appellant has acquired assets disproportionate to his known sources of income, that several heads under which the court below has ac epted I lie value of assets and xerifiab1e expenditure aix not based on any acccptahle evidence, therefore, the finding r(ordcd by the leatned Special Judge in tli behalf i' perverse' and N 1iabi to be set asidc' B\ Ii1at'111 rt'ji1l(t 011 Tin 1ndQm'nt of t] Ap x ('oto t in rIi ast of Ashak Tshermg Bhutia Vs State of Stkktm n ported in (2011) 4 Supreme Court Cases 402 harrwd OTliSCi (jute fl(IeOi t1i( X( Al Itv -1;" u! ;11'( 't I 21 those Incomes in the Assets and Liability statement. the appellant accused is entitled to prove those Incomes in tile inannei provided by the provisions of the Indllan Evidence Act and the court ought to have considered the n identlary value of those materials independently f the circumstance of non disclosure in the Assets and Liability statement. It is his submission that non disclosure of those incomes in the Assets and Liabffity statement as required by the Conduct Rules may be a ground to initiate dlsclpliirnry actions as per the service Rides hut that by itself cannot be a ground to totall3 reje t flu doeumc ntary evidence proved in accordance with the provisions ot indian Endi me Act: that the pim islow, relating to filing of ;imuial assets and liability stattmei tin tie 'niti Rd Sc ( jrc a law a Si I C ft Laity iii c. &iti il I lit t ride'ice 1. rj liv t hr 'IPIX 11:3111 i'itl' rnai ri fij ilig. rec t-Jpt 4.1 tl't liii t•im nm ,al t•1 V J;:.IIa l1h sht iik !;n' I I. 1, been considered in the light of the provisions 01 the Indian Evidence ½&'t lie further contended dim. since provision similar to explanation to Scction 13(1)fr) ol the 1988 Act uas not found in 1947 Act. and cince the major portion of the check period was falling within the period in which the Old Act was In force, the learned Spcclal Judge could not have pressed the explanation to Section 13(1)(e) of Act of 1988 Into service to the case on hand and such exercise made by the learned Special Judge Is contxary to the Articlc 20 sub-c lause(1) of Constitution (if India. a 10 Pc r contra, the Icanird counsel appearing Ioi h r wonder Statc .igfr t ji ifv hc udgnt. it 'tuck r appisi' and tonttndrci that the ltarncr! Spet 'al C lit " Pt ci tot )f al ud oc uc •u cvjij t,y. lia rt c .iriled if t i'Iint, 'hat tlit iC L'hl'CL' i1 1 F 23 acquired assets disproportionate to his known sources of income and the said finding being sound and reasonable ha'iing regard to thc eiidenc'e on record, does not call ior mterferencc by this Court lhc court below has rightly not accepted the contention of the accused with regard to the receipt of the huge extent of amounts from sale of plots In the light of explanation to Section 13(1)(e) of Act of 1988 as admittedly. the appellant has not disclosed the said income in his innual kssets and Liabifity statement required to lx subrnittc d to thc chsciphnaiy authority is per the Conduct Rules I herelort he contended that the judgment loes not uflcr from pen er ,its or lllegaht3, allm, for ntcrfenna b, this C nut I 1 VI ( 'ardSc 1 t & i I 24 guilty of the oflences charged against him?
2. Whether thy judgment unclem appt-ai %uffers from perversit) oi illegality calling for interference by this court?
12. 1 have bestowed ms serious considerations to the submissions made by learned counsel on both sides.
Let me briefly refer to the legal position. Section 13 of the Act of 1988 deals with various situations when the public servant said to has e committed criminal misconduct Clause (c) of sub section(l) of Section 13 is apphcablc sstmc i the public senant or any pcr on on his bhalf mnpos'4sion this tan tm lrintstlc c of hi' ffic e j. pecuniary irce or pmopcmts 4 o his knosn bout cc ' A menmnc whic h A c servant (-tnnot r I I satisfactorily account, Clause (e) of sub section (1) of Section 13 of Act of 1988 corresponds to claus (e) of sub section (1) of Section 5 of 194? ct In State of Maharashtra V. Wasudeo Ram Chandra Kaidaiwar reported in (1981) 3 3CC 199 205, the Apex Court while interpreting scope of Se( tion 5(l)(e) of 1947 Act has held thus in paras 12 and 13:
"12. xx x x x The provision contained in Section 5(1)(e) of the Act is a Af contained provision The first part of the section casts a burden on the prosecution and the second on the accused When Section 5(1)(e uses the voids for which the public srvant anriot satisfa torily account it is implied hat th burd n is on su I publi sen ant I 1((( unt for th sou C cs for th a quisition f 1ispro rti n itc asset Fl IIigl urt h r r 11 26 cannot be convicted ui an offence under Section } 2 ( 5 L read with Section 5(1)(c) of die Act unless the prosecution disproves all possible sources of IflCOille
13. Ihat takes us to the (lii ficult question as to the nature and extent of the burden of proof under Section 5( 1)(e) of the Act. The expression burden of prool 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 rulc that h burden of proof lits exclusively upon the prose(lltiOn. in the case ot c'erl airy ofien'es, thc nird n of roving a paiticulai 1u in is'n rn Ic d b 1 th c ci i 1i burden rnru on i Ia ('t1iSe In such eds(s 15. None\ei 1101 50 o'"rou as that 27 dliseharged by proof of a balance of probabilities The Ingredients of the offence of criminal misconduct undei SectIon 5(2) read with Section 5(1 ftc) arc the posses%ion 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 Section 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 rcsources or property found m possession of the ac iscd auc dlsprol o t onate to his now sn s ico )i hc' to gr dt. t it tabli'4td flu t nintin 1 u txrdu I undci ,c o 'g1fle is coml)lek s tIi icc t abir to I I 28 account for such resources or property. The burden then shift% to the accused to satisfactorily acrount for his possession ol disproportionate assets. rhe extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under Section 5(1)(e) cannot be higher than the test laid by the Court m Jhtngwz case i.e. to establish his case by a preponderance of probability. That test was laid down by the court following the dictum of Viscount Sankev. IS.. in Woolmingron v. Director qf Public Prosecutions. The High Court has placed an impossible burden on thc. prosecution 10 disprovc fil possible sources of income which wc it within thc special knowledge of he acc ned s laid 1on in Suamy asc the pro'ccu ion cant ot in the en nature )f things c xpected to ki v h affairs of public sen ant thund 1 posw'.sioii of resourt £ s or prnpeirv dJ%pmpoltionate in his knoini sources of utromi i.t l1i -alan .
a t i he riiUtti iet LjK itli.i. tilt 29 knowledge of the public servant within the meaning of Section 106 of tht F idenc Act 1872 Section 106 reads When ur fact is espcci11y within th knowledge of any person. the burden of proving that faci is upon him"
In this connection the phrise 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 th accused is well settled. The accused is not hound to prove his innocenc beyond all reasonable doubt All that hc need do is to bring out a preponderance of probability Ihi '. c' has t cci reiterated b he ns tu i I or Ii Ic Apx 1 Ii K Veeraswanu Union of Indict r 1 (1991)9 qec 65 Veeraswcimt d i 30
72. The of the as0n m in Wt° R(Lrnct1 Katda has d ' been doUht' Counsel for the appelta urged that the eW tak' on Seeti ofl 5(31 cannot be inW to clause (el Or t of ScCtlOfl 5(1) and the deciS i0 theref0T reqUirCs recon sjtiO n But we do not thifl that the deci51O requir reCO l e s i5etb0 n It is to note that there is useful paraTh foUfld in Sectio 5(3 an clau n 1 d se tel of SectiOI 5(11. Clause (el create a statt1 s t0 offence which mu St he proved y the prOSe1 the proset10f to pTOVC t10fl It is for l that the accused or an y perSOfl on his hehalf has been in poS pecUT SC ° of a j resource or 1 per0 tY disProP° onate to ht s of IflCOffl \Thefl that flUS I by the prosCCutI0n ii is for the aeC d to accOUflt satisi t0Vi1Y for the dlsPioP 00tlht of th( proP rtICS pos5C5 5 by hifli. The e makes avaa statutfh Y deleIi which nuist be iw th is a rcstrit't dafeflt that s aec i 0 (1 d t) lh( ase(l to 3' account foi the clispropnrtionalltv of the assets over the income But the legal burden of proof placed on the accu%ed is not '40 onerous as that of the prosecution However, it Is lust lint throwing some doubt on the prosecution ersion. The legisiat tire has advisedly used the expre'sion "satisfactorily account". The emphasis must be on the word 'satisfactorily". That means tht accused has to satisfy the court that his explanation is worthy of acceptance. The burden of proof placed on the accused is an evidential burden though not a persnaswe burden. The accused however. cot iki discharge that burden of proof 'ott the balance of probabilitlcs either from the e idenc of tht prosecution and r n ldence from the ' t defenc e.
The _\pcs. C'nitt haf. liu-rlinr tield liii's in an 14 jr. ( 1rthe pjxlan lxvi er.
stmhmlnrd that i' n, Ia plvhihitiiicL
t 'C c in lvi '
I
assets disproportionate to his known
sources ol income and such possession
becomes an offence of criminal misconduct only when the accuseu is unable to account for it. Counsel seems to be focussing too much only on one part of clause (c) of Section 5(1). The first part of clause (e of Section 5(1) as seen earlier relates to the proof of assets possessed by the public servant, When the prosecution proves that the public servant possesses assets disproportionate to his known sources of income, the offence of criminal misconduct is attributed to the public servant. However. it is open to the public servant to S atislictoriiv account for such disproportionalitv of assets, But that is not the same thing to state that there is no offence till the public servant .is able to account for the excess of assets, II one possesses assets beyond his letit1matc means, it goes without. savi.rig that the exce is ou.t. of i1.1otten !ain, The assets are not d raai li.ke nt.rogc.. n from the air. it 33 has to he acquired for which means are necessan' It Is for the public servant to prove the source of income or the mean' by whk h he ac quired the assets. That Is the substance of clause (e of Section 5(i).
In the case of State of M.P. Vs. Awadh Kishore Gupta reported hi (2004) 1 5CC 691 the Apex Court while Interpreting the scope of Section 13(1 )(eJ of the 1988 Act has held thus In pans 5 to 7:
"5. Section 13 deals with various situations when a public servant c an be said to have committed ci iininal misconduct Clausc U') of sub sation (1) 01 the section is pressed Into service 2gainst the accused 1 he same is applicable when h public *nart or in- p sor on his lx'half Is in 1%SC%%IOfl or has, at .31W tIflit dii ir- ic en d of hi flicc Neti a I)O5 'nion loi wh ch the )ubli s '1 ant cannot %jftIIa1'tflflj% a iodm of p c'iruary t • F) c )rf-- I I I 34 his known sources of income. Clause (e) of sub-section (1) of Section 13 corresponds to clause (e) of sub-section (1) of Section 5 of the Prevention of Corruption Act, 1947 (referred to as "the old Act"). But there have been drastic amendments. Under the new clause, the earlier concept of "known sources of income" has undergone a radical change. As per the Explanation appended, the prosecution is relieved of the burden of Investigating into "source of Income" of an accused to a large extent, as It is stated in the Explanation that "known sources of Income" means Income received from any lawful source, the receipt of which has been intimated In accordance with the provisions of any law, rules, orders for the time being applicable to a public servant. The expression "known sources of income" has reference to sources known to the prosecution after thorough investigation of the case. It Is not, and cannot be contended that "known sources of income" means sources known to the accused. The 1--35
prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106 of the Indian Evidence Act, 1872 (In short "the Evidence Act").
6. The phrase "known sources of Income" In Section 13(1)(e) bid Section 5(l)fr)j has clearly the emphasis on the word "Income". It would be prhnaiy to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term "income" by Itself, is elastic and has a wide connotation. Whatever comes in or is received, is Income. But. however wide the import and connotation of the term "Income". It is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or Investment, and having further a source which may or may not yield a 36 regular revenue. These essential characteristics are vital in understanding the term "income". Therefore, it can be said that, though "incorne' is receipt in the hand of its recipient. every receipt would not partake the character of income. Qua the pubhc servant, whatever return he gets from his service, wiJi be the primary item of his income, Other incomes which conceivably are income qua the public servant, will be in the regular receipt from (d his property, or (h) his investment. A receipt from windfall, or gains of graft. crime or immoral secretions by 1)e1'soi prima facie would not he receipt from the "known sources of income" of a public servant,
7. The legislature has advisedly used the expression "satisfactorily account", The empha.s.is must. be on the word "saeisftciorilv" al a:i the iegisiau.irc has, thus. delbe'ateiv cast. a b rdcn on. the accused not only to oiler a plai sihle explanation as to how .he came by his large wealth, but al.s p 5 it j 17 to sat isI3' the court that his explanation was worthy of accept aztec This iew has been reiterated by the Apex Court in the case of DSP v. K. Inbosagczran repoiteci in (200
6) 1 SOC 420.
Keeping in mind the above said principles let me consider the case on hand and find out as to whet her the prosecution has discharged the Initial burden reste d on It and if so. whether the accused has satisfactorily accountt ci for the pectiniaiy sources putforth by him by I way of Mc defence I Ii. It is at) admitted lact that the appellant -
accused joined the sen Ice iii Habit Dharwad Mt )iipcll t u- ,c r 956 illaer
-
i vas
p cmot o a T inic r Lr.ginet r. Ac'ordrng to tin
pr°%eu(1cn. dining 'he rho. k p Pod ' V 1 7 II6 t
'P
1
I
I
I
It
38
2.2.1989. the appellant accused has acquired assets disproportionate to his kn own souices of income.
The appellant has not disput ed that his total salary during the check period was Rs.2 .03,730.98 paise as foun d iy Investigating Officer and also by the court below.
There is no dispute that the ap pellant during the check period constnicted a house on the plot owned by him after obtaining prior permiss ion from the discip linary authority. Though the Investigating Officer as sessed the value of the house property at Rs 5,66 820/ the learned Special Judge ac cepting the contention of the H( (flJ j4f lJ i H Pat. allowed deductio n to an extet it of 20% and has aqstssed the value ot tht house pr operti at Rs.4,5a456/. Similarli though the In estigiting OiIa e a,sessed the ah ie of thc Ito st I ol .1 ar tlr If aouiid iii th itsidtii iai a hou'--t ni ii .tpj til i? 4(C l%((i at It 12 91 Iii k at fled 1 (C 'al ' 'udpe i'lov I dcductic ir, hi n . '-iit 'I Ut In i' "cp1u4' Ui I ji 3 () coi it ent mli ol i he appellai it that his con tribution to the puiehase of house hold articles a well as domestic expenditure was onl 6o whereas rem aining O 4° was by his lather and wife, on that basis, the learlie(1 Special Jiide has arrived at the x alue of hou sehold articles at Rs. 1.45,555/ . Flowever no deduction is made in the domestic expenditure as assessed by the Investigating Officer at Rs, 1 ,O23O2/-. The major area ol controversy is univ with regard to the valuatio n of the house propert.. valuation of the househ old articles and the domestic expenses. Thcr is no (lisplule that the tather nt the apellantaccuscd till Ins death as iesidmg with the accused 11w eu idem e also etahhsh a that his faihcr and ifc jointly wre Iunnins a cnwnt g ney ho Inc a IN vid w c also has clearly cci abliaN d that Ir ( 0 k a as pi1r based iii N aanw of tht x ile '1 thc H{ ('iiSC( iid till', o• a ii fu 1 nJaclcd h ii s t rid I iahilib at at n s i mitte I N I c I hi I
-II) disciplinary authority for the year i)84 198 5 a per Ex.P 13 Therefore. thi contention of the appella nt accused that on account of the use r of iorry owned by his wife in the corictruction activities and also user of cement at cheaper rate resulted in reduction of cost of construct Ion is highly probable. Tn fact. the learned Special Judge has accepted the said con tention. Tn addition to this, the appellant-accused is an Engineer 1w himself. Therefore, it is reasonable and also qui te natural that the construction activity mu st have been supervIsed 1w hIm cml) and on accoun t ot this cost of consi-nic hon must hac come down hiri her Tht submission of thc learned counsel that the standard rate fixed by PWD with regard to the con truction w uld s -o in lith p cit margin cE the tonnaflor ipart horn )fli'r rn ihead barges 111% ssi-cai fair c- sin e a nrgrartoi by pi ofecsioi has nj i iakc u I i )lit I rn h. uks li I It i r 1' t ikcs iii elite Ifl Ia I 41 considered opinion, tile learne d Special Judge having accepted tile c'out entlon of the ap pellant in this behalf ought to have allowed reduction to an extent of not less than 30 3b°'o over and above the valuation on the basic of the standard rates fixed by PWD. if that is accepted and ci cii If another 10% reduction is given, the valuation of the house proper ty would be reduced by roughly about Rs.60.00C)/.
Having regard to the fact that the wile of accused was nmnlng a lorry and was also a partner In cement busin ess along with her father hi law. his reasonable to presum e that she was getting good Inc miii from lhc said busin esses Nc doubt the appeilant• 2ccused h l ioi disc io'td hosc inc ome dcrived by his lfe and Iath i as mcmix re of his fan nl to itit disc iplinan att Lonti in the form ot A'sets and Ii ibiliti si itcninitt. ilnweiu on ihnt nc)nnd alone i a i ot lx aic1 that all tiic ho u,e livid nt wIt s lorni I i ii i dcn it.J hn ' tic ic i i '' t' tin 42 search and seizure was purchased by accused and accused alone invested money for purchase of those house hold articles, Possibility of the income of the wife and the father who were residing with the accused in the same family having been utilised for acquisition of those household articles cannot be ruled out, That is the reason why the learned Special Judge has allowed a deduction of about 46 over the valuation of the household articles. This deduction was allowed accepting the contention of the appellant accused that his contribution to the household and domestic expenditure was only 60 °n md rmainmg 4O°o wa from his wife and father 4 F rc m he e idenc c f P' K Sada ianth SI city a d Manager I ga 3rnk i € th i a 1 1 Ks ) 469 , paise ncludmg nterest was red uk cc re 43 from 2.9.1986 to 31.1.1989 'kccorduig to the evidence of PW5. the accused was-. holdi ng S.D. Ac c mint No.526.
h'. wife was holding S B Ac count No.1751 and Macter Vinoci son of accused wa s holding 8.13. Account No.2598. the accused and his wife were jointly holding account S.B.No.2447 in Vi jaya Bank. His evidence further establishes that in the account of the act used viz., 526 amount of Rs.2, O1.168.55 palse including interest was created during the period 17.11.1984 and 10 3 1989 and out of that am ount except Ps. 1.56.586/- all other unounts were cie dited b3 (L of cheques According to PW.b. a su m of Rs.3 91.16995 paise irn hiding interest wa s created to S B Account of wif e of cusc'd is 1751 b'ti'eep 2 .).1986 and 311 i989 1 lit evic't q c i 1W 6 arnan Nadakann retli ec (Iffic ci l3l. t %Tabllshc'. (hat then wa s joint .c •' ii 'a th 'nrri. of II i'' s i 1 .1 ln% If n'l 1 a 44 between 6.1 1988 and 23,12 1988 an amount of Rs. 1,2l591/ was credited to the said account out of which a sum of Rs36O5O/ was credited in cash while remaining amounts were credited by cheques. This indicates that large amounts were found in the accounts of the accused and his wife This shows that his wife had substantial income by the business run by hrr,
16. It is also in evidence on record that during this check period, father, brothers, sisters of the appellant ac( used had executed power of attorney in favour of appellant accused authorising him to sell the plots owned by their famih and put suant to th said power of ittoi n the 'ii pdl nt a c i x ar o ,al Ic f ot r sever i buyers o f n its h I ilf i I o behalf of is fither I roth r nd isft r i, Iii ir I hid e I 45 of money from the purchasers as mentioned In the sale deeds through cheques and demand drafts and those cheques and demand drafts have been encashed through his bank account. It is the definite saw of the accused in his evidence that from out of the sale considerations he paid the shares of his brothers by Issuing cheques on his Bank account in which the amounts had beei credited. It Is also his evidence that a plot owned by his sister was sold and the sister gifted the entire sale consideration to him since by then she had tan mamed. It Is in his evidence that the property owned by hIq mothc r in la was sold by him as power ot attonie holder and tlit saile 4'oiisidcratlon to ax exknt of Its 94000/- was cad to icr daughtcr It Is in his ividence that the mother n 1 law nf th a .
am au II 2300 C Ia4h n
utte cit the a' cLaed h"ha. lit r I :5 hare 1' ' eli ed t
11 Cf )I( 't Si ittt( F •aii clgc nit lot
p
46
Perusal of the Judgment undci appeal Indicates that the
learned Special Judge has not rejected the eldence placed on record in this regard. In lact receipt ol various amount' by the accused by sale of plots and Its remittance to Bank Accounts held by the accused are established by the oral and documentary evidence placed by t lie prosecution itself. However, the learned Special Judge declined to accept the monies received by the accused by sale of the properties as lawful pecuniary sources only on the ground that those incomes have not been disclosed by the accused in the Asst is and I lability statement which was requn ed to be submitted as per the (onduct Rules 11w tact ieznalns that appellant accused lidS nx eked monies by sale of tile propenies and th mm ic' wit rt vU' ed by rut ins ' leque iii '(man Inns 1 cu is'. •.ii C ' his 'ank account . Thcsr are all tyidi-ricerl ly rt1stt-it'd '1 "'ii_it in id 1 . 1 %1..tJij ' ts i.--, 'a by lit I p 47 Bank authorities. Theiefore. ft can not be said that the appellant has not Act ounted for those nlonle%.
Ho% ever the only lapse appears to have been committed by the appellant was not reporting the same 10 the disciplinary authority by way of filing annual Assets and Liability statements.
The appellant-accused has accepted In his evidence tha t he submftted the Assets and Liability statement onl y for two years as per Exs.P.43 and P.44 for the years 1984-85 and 1985 86 For the earlier period and also for the subsequent period he did not submit his annual Assets rnd Liability statement. Perusal of Exs P.4 3 and p 14 indIcates that he submitted this statement as iequirt d b) Rt gulation 20 01 I-Tubh Dliarwad Muuk ipal oi por iflon Employeen C ondnet R des. 01 'nise U It rrtd ipe Ml 1 i Je has plan- I tell ii c i Rule% 2A ot Ka. natalca (ail ' rdu t Ruk, llcseei. srnu then nas a n ( ncI 1 tk fo. th tmj,ln.cac ni .1,. r4bl--
U 48 Dharwad Municipalities, the provision of Karnataka ('lvii Services Conduct Rules may not apply to those employees. Nevertheless, as per the Conduct Rules governing the accused, he was required to submit the Assets and Liability statement every year to the disciplinary authority and he was also required to report all acquisitions of immovable properties and pecuniary advantages received by him during the specific year.
The question is, whether this lapse on the part of the accused in not reporting the incomes derived by sale of the properties as evidenced by registered documents, hould he a ok ground to ignore thc oluminous e idence placed by thc accused in this regard, hic h would indicate that the accusc d had 1ccount( d for th noni s rec en ccl b3 him It is the ntention of tn€ k ]rncd inse1 fo ppc L n t ot Id f I t nt 39 which Assets and Liability statement arc filed as per ExP, 43 and P't4. there is no specific column provided for mtntioning the gifts received. May he there is no specific column in Ihe said Format. Nevertheless, in view of the specific provision contained iii the Conduct Rules that an employee governed by the said Rule is required ro report all the acquisitions and pecuniary advantages received, non providing of specific column in the format itself cannot be a ground to absolve him of his obligation to report such acquisition and ieceipts.
1$. The Apex Court in Ashok Tshering Bhutia Vs State of Sikkim s case referred to supra had an oec asion to deal u ith an Imost idt nt cal a, In the said as an rnplov f the Skkirn (rw'ernrncn1 nas llar200 1 aqn'i in assets dIcproporJuI1 aft 1t hN known -oIlr(e 01 lfl( olne duriint 'tr[ain check period A p'-i 11i CUIiV t Ir imci tht ikkm 50 Government. Government servant was req uired to submit the Assets and I lability statement on his first appointment and also at the end of closing of even' financial year giving full particulars. In that ease. the public servant had nor complied with the said requirement. Therefore. his contention regarding certain acquisitions and pecuniary advanta ges received by him, which had not been reported to the disciplinary authonty as required by the conduct Rul es were not accepted. Dealing such a situation. the Ape x Court has held thus in para 40 * I
40. rIte contention ci the respondents regarding non complianct tth the 198 1 Rule'. idversely alfecting the 'ii lent ian' .
'Mu ,i Ext D I must be i ejected for at k ast two lCcio11S (ii ltr 19n1 Ruh arc in ruP I e"ic nec c t (he adinissibillt in pnilun 41 1 1 c:l n is Ci erail P1 lrfl( C .', 1,1C,ia%ItLht.
51Evidence Act. 1872. rhe Rules are merely senier rules in which government cervant% In Si kkini are expected to abide. Conseq uently the respondent has not been able to provide any cogent reason why the contents of Ext.l) 4 should be disregarded: and fifi Rule 19 (1) nf the 1981 Rules does undoubtedly require government sen'ants to, on first appo intment to any service or post and th ereafter at the close of every financial ye ai submit to the Govenunent the retu rn of their assets arid liabilities. How enr. it is to Lx not ed that the said Rule.
mi isages that public servants will submit such rettuns 'n a pn' nbed for m De'pfte being ii peatedb •pin'li nie d b3 this ( ourt t lit .-e
-pc'ncJents vei C unable to produc' %iwh form thus. it inn I hi said Hi it thc appe llatit did no mph if h ak. Rid, fl% hi •ih liFt c 1.1 'S H ( c,) C (D C () ', I C Q_ C,) C C C,) C (D I -- --
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53
face disciplinary proceedings under the Sen ice Rules applicable to such public servant hut suc h falhirc on the part of the public sen-ant cannot have the effect of rendering the evidence placed by him with regard to the pecuniary advantages received by him as inadmissible in criminal prosecution lodged under the provisions of the Prevention of Corruption Act The Ape x Court has clearly held that in such fact situation.
the accused cannot be fastened with criminal liability br want of compliance oi said requirement. sinc e the Conduct Ruleq art not nile', of esidence p 19 rh law laid down in the aforesaid decision cquarel applies to the caM' on hand The kit t tint tin ippc'hnr au'ed md irs fanuly mcmbtr recci'ied larg extciat of 'iniount' l a c 1 mm m's bie p opertie nd 'usc in it ii in s 'in I ill thoie ret npt are •a rourn' .1 ii' rhtu Bar'k act c,unt', 1' n' in • i'pittc 54 Those monies have been received by means ol cheques and demand drafts as mentioned iii tile doruments registered as per the provisions of the Indian Registration Act. If really Ihose monlec were meant to lx unaccounted, the appellant accused would not have received those monies by way of cheques and demand drafts nor he would have got them encashed through ifica bank accounts The very fart that the monleq are received 1w means of cheques and demand drafts and the same were collected through his bank accounts through his Bankers clearly Indicate that he had S iccoimted for those monies rec eli ed by him The reqi iii c-ment to submit annual Assets and Tiabilth s'atenwnt furnishing all the partlcular% i' a nile nf cc dn nil of idne ht r imv opiidc'n lIt' lenflt d Special .Jiids ccnzld not hav2 c oatc U f I p lant i •h' ('hill--ill 01i 6t ili' IPTWIIWJI i thF. it tLarci It %etVC Is a thOif 4 ) J ), JJI )t'Ti "I- t!L'W n p4UICtl'V" '1)1(4 btT4 V io ()(iWi ULa4 i II IUJ.LI 1 C ftWO.) U JO ))II1OS T.W ITflj II I sairIica uninnirjdx.
qj ML. 1 v •p p.
(fliwi oi uoT4ewLcTx) JLfl UO
).JuPlLas WU014S p ) Will s
;p'qaq SILD in pasnaac iueitadde aqi p iioyuaiuo' )4)
unaa1ai jo asothncl aqi aoj sv q wojaq pno )UJ, a W 1tn3 .iaq)o ue pA wn jj P?M OO1 v Sew anssj '4U.L Ot •awoatq jo ninos usomi m o aieuopsodosdsp jasse pa.qnbae ;ou seq aq 4B 4 sa es su ow ap 4i eap qajqi saaanos sq W paaedxa £popujss seq 4wifladdv aq pin aarnos LflJS e wwj acuoaiq tie f4P padaaae uaaq aaeq ppioqs jeq aiojasaqi piie awes aq .zoj paurnoaae seq aq pue sjopl aq jo J3S Sq aseqs spj pseoi stppq gc ueq atom paijaaaz seq popad jaaqa aip Wigiup pawnaa e utujiadde xj ieq; snoq' blq J. juoaai uu wJi4 \14 J)aaejd aauapia hflOUJWfljOA aqi Oi pin$as Wupnq aJueldaJaP cc 1' 56 any lawful ource and su ch receipt has been in timated hi accordan e ith the provisions A any Lw.
nile. or orders for the time bein g applicable to a public servant.
It is necessary to note th at though Section 13(1)
(a) to (e) found in Act of 1988 ar e repetition / replica of Section 5(1 )(n) to (e) of Act of 1947. the explanation to Section 13(1)(e) of the Act was co nspicuously absent in Section 5 of the Old Act. In ot her words. this explanat ion was introduced only In th e 1988 Act As noticed supra. the check period in this case was from 1.7.19 66 to 2.2.1989. Pre tnt ion of Corruption An. 1988 ca me into force- aith dk t from 9.9.1988 that is about 5 months, prior to the end of tht cheek period. Thc check pcnod as spannlnR oi er appr oximatel> 22 vt ai s nit ol which mm th it 21 tan ca s c. ncrcd durini.. th( ftrO I ff1 which tht oIl Act . as n 1)1cc Lii ixriod vend ainde-- t a \i f '38$ wa'.
ha '1l ba ib nit ii nil s Sir' th p'i an
o- i trncl ix Scti 'i i'(f l I I wI I w_ the Act of 1988 was not fond in Section 5(11(e) of the Old Act. it was open to the public servant to sat isfact on ly account fei the pecut liary resources or property whenever an accusation was made against him alleging acquisition of assets dispropor tionate to his known sources of income even though he had not reported them to his disciplinary autho rity as required by the Conduct Rules. In fact, the obj ect of introducing this explanation in the new Act wa s to reduce the burden on the part of the prosecuti on in proving the known source of income by the public servant. Obviously, the SOUCC of income for acquisition of the ]ssets by a public servant would ahvays be within his personal knowledge. I herefore the Parliamentarians thought it n ssarv to provide an explanatiol to the eprcssioii known s ire ci inc m th it t't pecuniary rsour es or th property aqurtd b a puhk nt should he repoi1 d to tli oiseipinialv authoni'y 58 as per the Conduct Rules anti only those pecuniary resources or properties acquired and reported alo ne should lx taken into ac count while determining the question whether the asse ts possessed by the publi c servant have been acquire d from lawful sources. Sinc e there was no such compuls ion under the Old Act an d since the check period in the case on hand was alm ost covered during the period when the old Act was in for ce.
In my opinion, the failure on the part ot the accused to report all his Incomes to the disciplinary authority by submitting annual Astets an d Liability statement could not have lx'cn iewed seriou sly to reject his contention and on that basis to ho ld that the appellant-aa us ed has at' iuued assets disp roportionate to his know n %OI ret Jfl(tflle fla
21. Artu le 2(1 'ii ti'e. C1 o s titutii on gii c 5 ci jf') 110 fl n%p(ct it fl uitllfln Ioi 1ftn s.
59z\c'cordiiig to suh-clause(l) of said Ar ticle, no person shall be con1cted of any offence except for violation of a law in force at tht time of the commi ssion of the act charged as an offence nor be subjec ted to a penalty greater than thai which might have bee n inflicted tinder the law in force at the time of the commission of the offence. When the appellant-acc used received large sums of monies by sale of immovab le properties. the provisions of law then prevailing did not compel the adjudicating authority to accept onl y such properties or peetuiiary resources reportt d to the disciplinary authority as the only lawful source s 01 income nhile adjurlic thing as to vherher or not a public 'en ant had acquired assets cilsproportionatc to his known soui cc of ncome flu relic, in my r nnMd rc d opinion l' mu reg,arcl o till 1 i€itioi in liii' °asc. th 'qtc.al .Tii t J,s' üoiild not ha t placed rt haiu e 'n c planatna to ¼ 'lion !3i lift j cit (lit \ 't d 198h 10 '3' th nlt(n.iflP '' 'he 1,, 60 appellant wfth regard to the monies which he had received by sale of immoiable properties during the c 1i k period, the learned Special Judge ought to have taktn mto c onsideration tin amounts ix ccii ccl by the appellant accused by sale of immovable properties which were accounted for since they had been received by means of cheques and demand drafts In addition to this, it is also necessary to pomt out that from the evidence on record It is clear that the family of the appellant accused owned large extent of lands and major portions of their holdings were lost pursuant to the nendment brought to thc Kamataka I and Reforms it m in , ar 1974 This shoci that tin ippellant i cuscdhailediiom i hfamilyownnlargenctcntof I d ic a c ,nill dt i it It e I lmro il€r on t I i m ihim cir t a I I 61 income he also had considerable income from the properties owned by the family and also the businesses run by his wife and father. Therefore, it is reasonable to hold that the income so derived has been utilised for the acquisition of the assets and also to meet the domestic expenses. If those incomes are taken into account and accepted as lawful sources of income, in my opinion, there is no circumstance to hold that the appellant accused had acquired assets disproportionate to his known source of income, On the other hand, the income derived by him during his check period from all sources is more than the assets held h him and also the probable domestic verifiable and non verifiabk expenditures The Apex Court in the case of State f Maharashtra 4 Vs PotZary Darabshaw Daruwalia rrporId in Am 1988 SC' 88 has held tha on th qw stion i hether the xten of the lispropor icr is ich if t i I some what liberal view requires to be taken of what proportion of assets is in CXCCS% of the known source of inc'oine constitutes disproportion for the purpose of Section 5(1 fle) of t lie Act " (equivalent to Section 13(1 )(e) of the present Act).
22. HavIng regard to the discussions made above, I am of the considered opinion that from the evidence placed by the accused there is no escape from holding that he hac satisfactorily explained and accounted for the value of the assets held by him and also under arlous heads oi expenses Incurred w 1 tixu fort there are OC) circumstances to hold that the him and a appellant accused ha" acquired assuts disprnpornonatt 0 t his known wur e of inc ome Tin k'ai ned Spcs ml i i is rpnon. 11 cnpletei n rk 1ied ti& I zzal aap ct of th. mat" i .nd ilicretore the Imdi ng rec'cjjcltd tn tli karned spiclal iii I...t 1 o iint tht I. 63 appellant- accused guilty of the aforesaid offr' nce is highly perverse and Is liable to be set aside.
23 Accordlngly. the appeal is allowed The Judgment of conviction and order oi sentenc e dated 12.6.2006 passed by the Principal Sessions and Spe cial .Judgc. Dharwad In Special (SW') C C.No. 13/9 1 convicting the appellant accused for tlu offence punishable under Section 1 3( 1)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1988 is her eby set aside. The appellant-accused is acquitted of the charge levelled against him Thc ball and surety bonds encuted by lum stand discharged 'The lmnc amount. if my. deposited by him Is ordered t lx refund d to hin.
JUDGE