Bangalore District Court
The State Of Karnataka vs S.B.Mallikarjuna on 22 June, 2016
IN THE COURT OF LXXVII ADDITIONAL CITY CIVIL AND
SESSIONS COURT AND SPECIAL COURT, BENGALURU.
(CCH-78)
PRESENT: SRI MANJUNATH NAYAK,
B.A.L. LL.B.,
LXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE &
SPECIAL JUDGE, BENGALURU.
DATED: 22nd JUNE 2016.
Spl. C.C.No. 294/2010
*****
COMPLAINANT: The State of Karnataka,
Rep by Inspector of Police,
Karnataka Lokayuktha,
City Wing, Bengaluru
(Rep by Smt. Shailaja K Nayak,
Public Prosecutor)
V/s
ACCUSED: S.B.Mallikarjuna, Aged 59 years,
S/o Basavannappa,
Police Inspector,
Upparpete Traffic Police station,
R/o No.590/1A, 15th 'C' Main,
15th cross, 4th Sector,
H.S.R.Layout, Benagluru.
(Rep by Sri Shankar P.Hegde,
Advocate)
******
2 Spl. C.C. No.294/2010
1. Nature of Offence: Offence punishable under
Sec.13(1)(e)R/w Sec.13(2) of
Prevention of Corruption Act 1988.
2. Date of Commission In between 01-01-1990 to 03-11-2007.
of offence:
3. Date of First Information 02-11-2007.
Report:
4. Date of Arrest: Not arrested.
5. Date of Commencement 06-03-2015.
Of recording of evidence:
6. Date of Closing of evidence: 23-04-2016.
7. Date of Pronouncement of 22-06-2016.
8. Result of the case: Accused acquitted
^^^^^
JUDGMENT
The Police Inspector of Karnataka Lokayuktha Police, City Wing, Bengaluru City has charge sheeted the above named accused with an allegations that the accused has committed the offence punishable under Sec.13(1)(e) R/w Sec.13(2) of the Prevention of Corruption Act 1988 (In short PC.Act).
2. The case of the prosecution, in brief is as follows:
This accused was working as Inspector of Police at Upparpet Traffic P.S. Bengaluru City and as a public servant, during the check 3 Spl. C.C. No.294/2010 period from 01-01-1990 to 03-11-2007, accused acquired properties and assets disproportionate to his own source of income. On 03-11- 2007, when search was conducted to the house of the accused, he found in possession of pecuniary resource and properties in his name and in the name of his family members, to the tune of Rs.55,86,723/-
and expenses of the accused and his family during that period was Rs.35,52,965/- and the total assets and expenditure of his family was Rs.91,39,688/-. During the check period, known source of income of the accused was Rs.63,34,604/- and accused found in possession of the property disproportionate his known source of income to the extent of Rs.28,05,084/-, which is 44.28% of his income and the accused could not satisfactorily account for the disproportionate assets and properties found with by him. On the basis of source report prepared by CW.35, he has registered the FIR against this accused in Crime No.67/2008. After obtaining the search warrant, CW.35 secured the pancha witnesses and conducted the raid to the house of the accused on 03-11-2007 and valuable properties and articles found in the house were notified. On 05-11-2007 search was conducted to the bank locker of the wife of the accused at State Bank of India, St. Marks Road Branch, Bengaluru and mahazar was drawn by seizing the gold and silver ornaments and records in the said locker. Thereafter, 4 Spl. C.C. No.294/2010 bank accounts and particulars of properties owned by the accused, documents relating to the assets and vehicles owned by the accused were all secured. The report relating the costs of construction of house and domestic expenditure were secured. On the basis of the investigation conducted by the Lokayukta police, accused found to be in possession of the assets and properties disproportionate to his own source of income and accordingly CW.38 has filed the charge sheet against this accused after obtaining the sanction from the competent authority, to prosecute the accused.
3. This court took the cognizance and accused appeared before this court was enlarged on bail. The accused was provided with the copy of the charge sheet and its enclosures. This court heard both the parties on the charges and having found the prima facie materials, framed the charges against the accused for the offence punishable under Sec.13(1)(e)R/w Sec.13(2) of PC.Act. The accused pleaded not guilty and claimed to be tried.
4. To bring home the guilt of the accused, prosecution examined seven witnesses as PW.1 to 7 and got marked Ex.P-1 to P- 59 documents.
5 Spl. C.C. No.294/2010
5. This court recorded the statement of the accused as provided under Sec.313 of Cr.P.C. The accused denied all the incriminating evidence appearing against him. The accused examined himself as DW.2 and one witness on his behalf as DW.1 and got marked Ex.D.1 to 59 documents.
6. I have heard the arguments of both the parties.
7. The points, that arose for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that the accused, being a public servant, working as a Police Inspector in Upparpete Traffic P.S. Bengaluru, during the check period from 01-01-1990 to 03-11-2007, acquired properties and assets disproportionate to his known sources of income and on or about 03-11-2007 accused found in possession pecuniary resources and property in his name and also in the name of his family members to the tune of Rs.55,86,723/- and expenses of the accused and his family during the check period was Rs.35,52,965/- and assets and expenditures were worth Rs.91,39,688/- and during the said check period, income of the accused from his known source was to the extent of Rs.63,34,604/- and there by accused found in possession of property disproportionate to his known source of income to the extent of Rs.28,05,084/-
(44.28%), for which accused could not satisfactorily account and there by accused committed the offence punishable under Sec.13(1)(e) R/w 6 Spl. C.C. No.294/2010 Sec.13(2) of the Prevention of Corruption Act 1988?
2. What order?
8. My answers for the above point is in the followings because of my below discussed reasons.
POINT No.1: IN THE NEGATIVE.
POINT No.2: AS PER FINAL ORDER.
REASONS
POINT No.1:
9. Let me first the state the evidence let in by both the parties before this court. The prosecution examined CW.1 as PW.1 and he deposed that he is working as SDA in the Commissioner of Social Welfare, Bengaluru, and on the instruction of their Deputy Director, he and CW.2 went to the Lokayukta Office on 02-11-2007 and officials of the Lokayuktha instructed them to visit their office on 03-11-2007 at about 5-00 a.m. PW.1 further deposed that, on 03-11-2007, at about 5.30 a.m. they went to the office of the Lokayukta police and Lokayukta police have taken them in a jeep towards Austin town and reached near a government quarters at Austin Town. PW.1 further deposed that police have entered into a house and shown search warrant and conducted the search of that house and mahazar was drawn in their presence as per Ex.P.1. PW.1 further deposed that some 7 Spl. C.C. No.294/2010 gold and sliver ornaments and cash were seized while drawing mahazar. PW.1 further deposed that after drawing of mahazar, they proceeded towards Upparpet Traffic Police, wherein a mahazar was drawn as per Ex.P.2.
10. CW.8, who was examined as PW.2, deposed that during November 2007, he was working as SDA in the office of Director and Commissioner of Sericulture, Bengaluru, and on 05-11-2007 he was instructed by their head quarters assistant to accompany Lokayukta police to assist as a pancha witness. PW.2 further deposed that on the same day, he appeared before CW.35 and they were taken to State Bank of India, St.Marks Road Branch, Bengaluru, and locker belong to one Smt. Sandhya was opened and gold and silver ornaments were recovered and mahazar was drawn as per Ex.P.3.
11. CW.25, who was examined as PW.3, deposed that he was working as Joint Director of Statistics in Karnataka Lokayukta and on 30-03-2010, he received a letter from Superintendent of Police, Karnataka Lokayukta to assist them to prepare invisible expenditure of the family of the accused. PW.3 further deposed that on his direction Smt. R. Chitra, Assistant Statistical Officer, Karnataka Lokayukta, Bengaluru, prepared a report touching the invisible expenditure of the 8 Spl. C.C. No.294/2010 accused and his family members for the period from 01-01-1990 to 03-11-2007. PW.3 further deposed that he placed that report before Superintendent of Polcie, Karnataka Lokayukta and said report is as per Ex.P.4. PW.3 further deposed that as per Ex.P.4, total invisible expenditure of the accused and his family was worked out at Rs.7,55,069/-.
12. CW.28, who was examined as PW.4, deposed that he was working as Assistant Engineer in Karnataka Lokayukta, Technical Wing, Bengaluru, and he was entrusted with the work of inspection of building at HSR Layout, 4th sector, Bengaluru. PW.4 further deposed that they inspected the building on 03-10-2008 and 04-10-2008 and it consists of ground floor, 1st floor and part of 2nd floor. PW.4 further deposed that as per the letter of the Investigating Officer, building was constructed during the year 2003-2004 and built up area of that building was Rs.483.29 square meters. PW.4 further deposed that ground floor of that building comprise of entrance, verandah, two bed rooms, one living room (hall), one dining hall, one kitchen, one pooja room, three toilets with a stair case with area of utility. PW.4 further deposed that 1st floor comprised of three bed rooms, one living room (hall) one dining hall, one family room, one pooja room, one store 9 Spl. C.C. No.294/2010 room, three toilets with a stair case leading to the 2nd floor. PW.4 further deposed that 2nd floor of that building comprised of one bed room, one living room, one kitchen, one toilet and a room for the use of servant. PW.4 further deposed that he assessed the value of building as per the schedule of rates, which were prevailing at the time of construction. PW.4 further deposed that as per his assessment, excluding the value of the site, cost of construction of that building was Rs.32,25,000/- and he submitted a provisional report as per Ex.P.6.
13. CW-35, who was examined as PW.5, deposed that he was working as the Deputy Superintendent of Police, Karnataka Lokayukta, Bengaluru, and on 31-10-2007, he prepared source report of the accused and submitted the same to the Additional Director of General of Police, Karnataka Lokayukta as per Ex.P.7. PW.5 further deposed that on 02-11-2007, he received the proceedings from the Superintendent of Police, with a direction to register the case against the accused and accordingly, he has registered the FIR. PW.5 further deposed that he obtained search warrant, secured the presence of PW.1 and 2 and conducted search of the residence of the accused on 03-11-2007 and drawn mahazar. PW.5 further deposed that on 05-11- 10 Spl. C.C. No.294/2010 2007 he secured CW.8 and 9 and proceeded to State Bank of India, St. Marks Road Branch, Bengaluru and conducted search of locker No.1496 and seized the silver ornaments and drawn the mahazar as per Ex.P.3. PW.5 further deposed that on 06-11-2007 he made correspondence with the Manager of the SBM Bank, Sampanginramanagar branch, Union Bank of India, Koramangala Branch, Syndicate Bank, Koramangala Branch, Canara Bank, Koramangala Branch, and requested them to furnish the bank particulars of the accused and his wife. PW.5 further deposed that, thereafter he made correspondence with the Revenue Officer, Bangalore Development Authority, HSR Layout, Sub-Registrar, Bengaluru, Additional District Registrar, Bengaluru and Deputy Secretary, Bangalore Development Authority for getting the documents relating to the house property owned by the accused. PW.5 further deposed that he has written a letter to Ideal Enterprises, Koramangala, to furnish the particulars of domestic gas connection. PW.5 further deposed that he addressed a letter to the Principle, Bishop Cotton Boys High School, to furnish the expenses of the education of the son of the accused. PW.5 further deposed that on 07- 11-2007 as per the directions of the Superintendent of Police, 11 Spl. C.C. No.294/2010 Karnataka Lokayukta, Bengaluru, he handed over the records with him to CW.36.
14. CW.38, who was examined as PW.6, deposed that he received the case file from CW-37 and continued the further investigation and recorded the statement of CW.30 and 31 on 27-03- 2010. PW.6 further deposed that on 07-04-2010 he received Ex.P.4 report from PW.3 and received the report as per Ex.P.10 regarding educational expenses of the son of the accused. PW.6 further deposed that on 24-04-2010 he completed the investigation and placed the report before Superintendent of Police, to get the sanction. PW.6 further deposed that on 18-08-2010 he received the sanction order as per Ex.P.12 and filed the charge sheet before this court. PW.6 further deposed that, before he continuing the investigation CW.36 has received a letter as per Ex.P.14 and accused has given the statement before CW.36 as per Ex.P.15. PW.6 further deposed that on 14-11- 2007 CW.36 received a letter from the Senior Sub-Registrar, Bommanahally, as per Ex.P.16 along with sale deed as per Ex.P.17 and encumbrance certificate as per Ex.P.18. PW.6 further deposed that on 16-11-2007 CW.36 received the documents from Bangalore Development Authority as per Ex.P.19 and sale deed as per Ex.P.20, 12 Spl. C.C. No.294/2010 letter as per Ex.P.21, katha certificate as per Ex.P.22 and letters from Bangalore Development Authority as per Ex.P.23 and 24. PW.6 further deposed that CW.36 received a letter with approved plan as per Ex.P.25 and 26, form maintained by Bangalore Development Authority as per Ex.P.27 and sanctioned plan as per Ex.P.28. PW.6 further deposed that on 20-11-2007 CW.36 received the statement of assets and liabilities of the accused as per Ex.P.29 to 57 and report regarding the rental income of the accused as per Ex.P.58 and letter from the Accountant General as per Ex.P.59.
15. The prosecution examined one Ajay Kumar Singh as PW.7 and he deposed that he received a letter dt:06-05-2010 from ADGP of Karnataka Lokayukta, seeking sanction to prosecute the accused. PW.7 further deposed that he has gone through the papers submitted along with the said letter and since the accused was working as an Inspector of Police at Upparpet Traffic Police Station, he was empowered to accord sanction in the capacity of disciplinary authority. PW.7 further deposed that he convinced on the basis of the records produced before him about the prima facie case made out against the accused and accordingly, he has issued sanction as per Ex.P.12. 13 Spl. C.C. No.294/2010
16. The prosecution marked mahazar drawn in the residence of the accused on 03-11-2007 as per Ex.P.1. The mahazar drawn at Upparpet Traffic Police is marked as per Ex.P.2. The mahazar dated 05-11-2007 drawn at State Bank of India, St.Marks Raod Branch, Bengaluru, is marked as per Ex.P.3. The family expenditure report is marked as per Ex.P.4 with a covering letter as per Ex.P.5. The valuation report of the house of the accused is marked as per Ex.P.6. The Source report is marked as per Ex.P.7. The proceeding of the Superintendent of Police is marked as per Ex.P.8. The FIR registered against the accused is marked as per Ex.P.9. Ex.P.10 is the educational expenditure report relating to the son of the accused and Ex.P.11 is a covering letter. The sanction order is marked as per Ex.P.12. The Final report is marked as per Ex.P.13. A letter is marked as per Ex.P.14. The Statement of the accused is marked as per Ex.P.15. The Letter issued by the Sub-Registrar, Bengaluru, is marked as per Ex.P.16. Copy of the sale deed is marked as per Ex.P.17. The Encumbrance certificate is marked as per Ex.P.19. Copy of the sale deed is marked as per Ex.P.20. The Letter issued by the Bangalore Development Authority as per Ex.P.21. The copy of the katha certificate is marked as per Ex.P.22. A letter issued by the Bangalore Development Authority is marked as per Ex.P.23 and 24. The Plan 14 Spl. C.C. No.294/2010 approval letter is marked as per Ex.P.25. The Letter of Bangalore Development Authority is marked as per Ex.P.26. The Form issued by the Bangalore Development Authority is marked as per Ex.P.27. The Letter approving plan is marked as per Ex.P.28. The statement of assets and liability of the accused is marked as per Ex.P.29 to 57. The report of the rental income is marked as per Ex.P.58. The statement of Accounts received from the Accountant General is marked as per Ex.P.59.
17. As a defence evidence, accused examined one Basavaraj, who is the General Manager of M/s Sapphire Infrastructure Development Private Limited, Koramangala, Bengaluru, as DW.1 and he deposed that Director of their company was a tenant under the accused in respect of his house at HSR Layout. DW.1 further deposed that in that connection, he has issued a letter as per Ex.D.5 and copy of the agreement of lease as per Ex.D.6. DW.1 further deposed that their company has spent Rs.9,75,000/- towards additional work to make fit the said premises for better occupation and till this day, accused has not repaid the amount of Rs.9,75,000/-. DW.1 further deposed that after the Director of their company vacated the house, accused has repaid the advance amount within two years in 15 Spl. C.C. No.294/2010 installments. DW.1 further deposed that Ex.D.8 is the ledger extract showing amount of Rs.9,75,000/- incurred by them. DW.1 further deposed that income tax authorities have conducted raid of their company and its sister concern and some document were seized.
18. The accused examined before this court accused DW.2 and he deposed that he jointed the Police Department as a Sub-Inspector on 07-09-1981 and on the basis of the Seniority and clean records, he was promoted as a Police Inspector on 16-08-1997. DW2 further deposed that as per the Investigating Officer he has properly submitted the annual report and taken permission from the authority while acquiring the properties as per DCSR Rules. DW.2 further deposed that Lokayukta Police have conducted the search of his house on 03-11-2007. DW.2 further deposed that as per the information given by him, while filing annual report, his income from agricultural source is Rs.12,00,000/- and as per the report given by the Tahasildar the agricultural income of his family was Rs.46,88,600/- and his share was Rs.5,04,600/-. DW.2 further deposed that he has let out a house at HSR Layout to one Kupendra Reddy, who is the Managing Director of M/s Sapphire Infrastructure Development Pvt. Ltd., and there was rent agreement between him and said Kupendra Reddy. DW.2 further 16 Spl. C.C. No.294/2010 deposed that, as per the rent agreement, his tenant was paying the rent of Rs.55,000/- per month and the tenant Kupendra Reddy paid security deposit of Rs.Five lakhs and he has repaid the security deposit after the check period. DW.3 further deposed that he has partially withdrawn the amount to the tune of Rs.1,50,000/- and borrowed the loan of Rs.1,76,000/- from his GPF account. DW.2 further deposed that his salary was Rs.16-lakhs during the check period, whereas Investigating Officer has considered his salary as Rs.13,13,228/- DW.2 further deposed that Investigating Officer has not considered the KGID amount to the extent of Rs.21,920/-. DW.2 further deposed that while constructing his house at HSR Layout, he has borrowed the loan from his brother-in-law, after obtaining the permission from the competent authority. DW.2 further deposed that he received the loan amount through two cheques of Rs.2,50,000/- and Rs.2,00,000/- and balance amount of Rs.50,000/- in cash. DW.2 further deposed that this amount was not considered by the Investigating Officer as his income. DW.2 further deposed that he has borrowed a loan of Rs.1,50,000/- from Standard Chartered Bank, which was not considered as income by the Investigating Officer. DW.2 further deposed that he has borrowed the loan of Rs.70,000/- through his credit card, which was not considered as income by the Investigating Officer. DW.2 further 17 Spl. C.C. No.294/2010 deposed that he has sold the gold worth Rs.92.6 grams to purchase a site by obtaining permission from the Superintendent of Police, Gulbarga. DW.2 further deposed that while letting out his house at HSR Layout, it was not fully completed. Therefore, he has entered into an agreement with his tenant to complete the unfinished work. DW.3 further deposed that his wife has purchased a TATA Indica car by borrowing loan of Rs.2,32,000/- from ICICI Bank and the Investigating Officer has not considered the said amount. DW.2 further deposed that his wife was practicing as an advocate and she was having income of Rs.2,99,761/- and she has filed the income tax returns, which was not considered by the Investigating Officer. DW.2 further deposed that he has received a sum of Rs.29,682/- from NSC after its maturity and this amount was also not considered as his income by the Investigating Officer. DW.2 further deposed that there are defects in the valuation of the house made by the Engineer, as he used 70 tonnes of steel whereas the engineer taken it as 100 Kgs. DW.2 further deposed that engineer has not calculated the water, sanitary and electricity lines and added 15% as a lump-sum expenditure and 15% towards the foundation. DW.2 further deposed that he has spent Rs.18,00,000/- for the construction of house and as per the agreement with the tenant, he has spent Rs.9,75,000/-. DW.2 further deposed 18 Spl. C.C. No.294/2010 that he has deposited a sum of Rs.19,910/- with BESCOM and due to arithmetical mistake, Investigating Officer has considered it as Rs.69,917/- and excess amount of Rs.50,060/- is liable to be deducted. DW.2 further deposed that his marriage was performed during the year 1988 and he received the gold and silver ornaments at the time of his marriage and shown the same in his annual report. DW.2 further deposed that Investigating Officer has seized 60 grams of gold belong to his mother-in-law and also included the same as his property. DW.2 further deposed that house hold articles belongs to COD police Officer's quarters were also considered while drawing mahazar. DW.2 further deposed that his mother-in-law and brother-in- law were staying in his house and articles owned and used by them for their day to day living were also considered as his property. DW.2 further deposed that without considering the standard of living and agricultural produce grown in his farm, domestic expenditure incurred by him may not be more than Rs.4,33,365/- and Investigating Officer has taken the excess amount of Rs.3,21,700/-. DW.2 further deposed that even though his wife has sold the vehicle before search, Investigating Officer has considered the value of the vehicle as his asset and expenditure. DW.2 further deposed that his brother in law Shylesh has no issues and he has spent educational expenses of his 19 Spl. C.C. No.294/2010 children. DW.2 further deposed that Investigating Officer has considered the withdrawal of Rs.1,50,000/- as his expenditure and he has made both withdrawals to purchase the house hold articles and domestic expenditure. DW.2 further deposed that he has constructed a house and completed during the year 2005. DW.2 further deposed that Investigating Officer has taken house maintenance expenditure as Rs.2,61,645/- which is only notional expenditure shown in the income tax return and he never incurred this expenditure for maintenance of his house and collection of rent. DW.2 further deposed that police department has conducted a departmental enquiry against him in respect of the very same charges and he was exonerated in the said enquiry from all those charges. DW.2 further deposed that though he has got agricultural income of Rs.5,04,600/- during the check period, Investigating Officer has considered it as Rs.83,970/-. DW.2 further deposed that his rental income during the check period was Rs.55,000/- per month and Investigating Officer has not considered the last one month's rental income. DW.2 further deposed that Investigating Officer has not considered the GPF partial withdrawals, GPF loan and KGID loan as his income. DW.2 further deposed that Investigating Officer has also not considered the interest free loan of Rs.5,00,000/- borrowed by him from his brother-in-law and security 20 Spl. C.C. No.294/2010 deposit of Rs. 5,00,000/- and credit card loan of Rs.70,000/-. DW.2 further deposed that Investigating Officer has not considered the sale of gold ornaments to the tune of Rs.29,440/-, loan of Rs.2,32,000/- borrowed by his wife from ICICI bank to purchase. DW.2 further deposed that Investigating Officer has not considered the income of Rs.2,99,761/- earned by his wife by doing advocate profession, which she declared in her income tax returns. DW.2 further deposed that Investigating Officer has not considered the NSC maturity amount of Rs.29,682/- and construction cost of Rs.9,75,000/- which was paid by the tenant. DW.2 further deposed that, during the check period, his income would have been Rs.98,89,037/- and expenditure would have been Rs.23,50,433/- and assets would have been within Rs.32,14,264/-. DW.2 further deposed that regarding the partial withdrawal of Rs.1,50,000/- from his GPF account, investigating officer said that it was used for the marriage expenses of his daughter, though he has no daughter and he got only two sons.
19. The accused got marked the deposition of PW.1 recorded in the departmental enquiry as per Ex.D.1. The deposition of PW.5 given before the departmental enquiry is marked as per Ex.D.2. The deposition of PW.7 in the departmental enquiry is marked as per 21 Spl. C.C. No.294/2010 Ex.D.3. The deposition of PW.6 in the departmental enquiry is marked as per Ex.D.4. A letter dated 15-07-2009 is marked as per Ex.D.5. Copy of the lease agreement is marked as per Ex.D.6. Copy of the rent received statement is marked as per Ex.D.7. The ledger extract is marked as per Ex.D.8. A letter dated 04-01-2008 is marked as per Ex.D9. The salary extracts of DW.2 is marked as per Ex.D.10 to 24. The copy of the permission is marked as per Ex.D.25. The letter issued by the bank is marked as per Ex.D.26. Ex.D.27 is the credit card statement. Ex.D.28 is the permission given by the Superintendent of Police, Gulbarga to sell the gold ornaments. Ex.D.29 is the letter issued by the ICICI bank. The ledger extract is marked as per Ex.D.30. Ex.D.31 is the letter issued by the Income tax Officer. Income tax returns for the year 2002-2003 to 2007-2008 were marked as Ex.D.32 to D.45. Ex.D.46 is the latter issued by the postal department. Ex.D.47 is the letter issued by the BESCOM. The 'B' extract of the vehicle is marked as Ex.D.48. Ex.D.49 is the copy of the order passed in the departmental enquiry. A letter issued by the income tax departments were marked as Ex.D.50 to 55. Ex.D.56 to 58 are the letters issued by the Union Bank of India with account extract. Letter issued by the Tahsildar is marked as Ex.D.59.
22 Spl. C.C. No.294/2010
20. Let me first discuss about the question of sanction and validity of sanction accorded to prosecute this accused. In fact, the accused has not seriously disputed the validity of sanction accorded to prosecute him. In spite of the same, it is the duty of this court to consider the question of sanction and validity of sanction. The accused was working as an Inspector of Police, in Karnataka Police Department and he was charged with criminal misconduct, by alleging that he has acquired wealth, properties and assets disproportionate to his known source of income. U/sec. 19 of the PC.Act, it is mandatory to obtain the sanction to prosecute the accused, since he is a public servant.
21. In order to prove the validity of sanction, prosecution examined one Ajay Kumar Singh, retired D.G.P. as PW.7. PW.7 deposed about he receiving the letter from the Karnataka Lokayukta along with the documents like FIR, mahazar, statement of witnesses and final report seeking sanction to prosecute this accused. PW.7 further said that, at the time of registering of the FIR, accused was working as Inspector of Police at Upparapet Traffic Police Station and in the capacity of disciplinary authority; he was empowered to issue sanction to prosecute this accused. PW.7 further deposed that, after going through the documents produced before him, he convinced that 23 Spl. C.C. No.294/2010 the accused has acquired disproportionate properties and assets and accordingly, he has issued sanction as per Ex.P.12.
22. During the course of cross-examination of PW.7, many questions were asked to him regarding the records verified by him, in come of the accused from various source and loan borrowed by him. PW.7 has shown ignorance about all these aspects. Since PW.7 has verified those documents long before his cross-examination, he may not remember all those figures. That it does not mean that he has not verified the documents and not applied his mind while according the sanction. Apart from suggestion that without application of mind, he has issued the sanction order in a mechanical manner, no other material questions were asked to PW.7 to disbelieve his oral testimony.
23. Apart from that, I found no wrong in the act of the PW.7 in according the sanction to prosecute this accused, because there were prima facie materials against him to show that he has acquired the assets and properties disproportionate to his known source of income. Accordingly, after filing the charge sheet, having found prima facie materials, this court has taken the cognizance. The application filed by the accused for his discharge from this case was rejected by my 24 Spl. C.C. No.294/2010 learned predecessor in office; vide Order dated 13-12-2013 by holding that there were prima facie materials to proceed against this accused and to frame the charges against him. The accused has challenged the said order by filing revision before the Hon'ble High Court of Karnataka in Crl.R.P.No.113/2014. Even the said revision was dismissed on the ground that there were prima facie materials to frame the charges against the accused. When there are prima facie materials to proceed against the accused, act of PW.7 in according the sanction to prosecute the accused cannot be said as the order without application of mind or without verifying the documents.
24. PW.7, being then Director of General of Police and disciplinary authority, is empowered to issue the sanction. The authority of PW.7 to issue sanction to prosecute this accused has not been disputed or denied by the accused. Under all these circumstances, I have to say that there is a valid sanction to prosecute this accused.
25. Now let me consider the claim of the prosecution on merits. The prosecution alleged that this accused has acquired wealth, properties and assets, disproportionate to his known source of income. As per the charge sheet, during the check period from 01-01-1990 to 03-11-2007, accused and his family members were owning the 25 Spl. C.C. No.294/2010 properties worth Rs.55,86,723/-, whereas the expenses of the accused and his family members during the check period were Rs.35,52,965/- and in total, assets and expenditure of the accused and his family members were Rs.91,39,688/-. It is the case of the prosecution that the income of the accused from his known source, during the check period was Rs.63,34,604/- and thereby the accused found to be in possession of disproportionate assets worth Rs.28,05,084/-, which is 44.28% more than his income, for which the accused could not satisfactorily account.
26. The accused has seriously disputed the allegation made against him and also the figures of assets, expenditure and also his income, as claimed by the prosecution. The accused, during the course of cross-examination of prosecution witnesses, during the course of his 313 statement and also during the course of his evidence, tried to impress upon this court that his income from the known source is much more than Rs.63,34,604/- as alleged by the prosecution. According to the accused, prosecution has not considered some of the incomes and loan borrowed by him, though he has declared in his annual assets and liability statement and annual property report. The accused also contended that his and his family members expenditure, 26 Spl. C.C. No.294/2010 as shown by the prosecution, is on the higher side. The accused further contended that all the assets, properties and wealth owned by him were from his own source of income and there are no such disproportionate assets and properties with him.
27. Now let me consider the dispute regarding the income of the accused as alleged by the prosecution. As I said earlier, prosecution alleged that, during the check period from 01-01-1990 to 03-11-2007, accused was having income of Rs.63,34,604/- from various sources. Let me first describe in detail the various source of income of this accused, as contended by the prosecution and as stated in page No.48 and 49 of the charge sheet, which runs like this:
INCOME OF THE ACCUSED CONSIDERED BY THE PROSECUTION DURING THE CHECK PERIOD:
Sl.No. Source of income Amount
01 Net salary of accused during the Rs.13,13,228/-
check period
02 Net salary of the wife of the Rs.4,49,752/-
accused Smt. Sandhya during the
check period
03 Sale consideration received by the Rs.4,20,000/-
wife of the accused by selling site
No.283/30 of Jakkasandra.
04 Sale consideration received by the Rs. 1,51,000/-
accused by selling site
No.350/21C4 at Bellary.
05 Sale consideration received by the Rs.1,50,000/-
accused by selling site No.2625 at
Bellary.
27 Spl. C.C. No.294/2010
06 Interest received by the wife of the Rs.7,356/-
accused from her savings bank
account No.10867505659 at Indian
bank, Bangalore.
07 Interest received by the accused Rs.226/-
from his savings Bank account No.
54009908115 at State Bank of
Mysore, Bangalore.
08 Interest received by the wife of the Rs.2,241/-
accused from her savings bank
account No.2628 in Union Bank,
Bangalore.
09 Loan raised by the accused from Rs.3,00,000/-
HDFC Bank for purchase of site
No.590/A, HSR Layout, Bangalore.
10 House construction loan raised by Rs.15,00,000/-
the accused from Canara Bank for
construction of house in site
No.590 A.
11 House construction loan raised by Rs.5,00,000/-
the accused in Canara Bank for
construction of house in site
No.590 A, HSR Layout, Bangalore.
12 Loan borrowed by the accused Rs.1,00,000/-
from Canara Bank for installation of
solar water heater.
13 Loan raised by the accused from Rs.1,85,000/-
Canara Bank in account No.4489
14 Personal loan borrowed by the wife Rs.2,00,000/-
of the accused from Indian Bank,
Bangalore.
15 Returns obtained from the Term Rs.69,960/-
Deposit made in
State Bank of India.
16 Maturity amount received from LIC Rs.29,718/-
17 Share received by the agricultural Rs.83,970/-
income of Hindu undivided family
18 Rental income from the house Rs.8,72,153/-
No.5490 at HSR Layout, Bangalore.
TOTAL: Rs.63,34,604/-
28 Spl. C.C. No.294/2010
28. The accused, during the course of his arguments and along with the written arguments, has submitted the list containing his income, assets and expenditures. In the said list, accused has admitted all those figures of income, except disputing the figures shown in Sl.No.17 and 18. Though the accused admitted the income at sl No.17, as he received from the Hindu undivided family property, according to the accused, it is not Rs.83,970/- as contended by the prosecution. Rather, according to the accused it is Rs.5,04,600/-. So far as the rental income as referred in Sl.No.18 is concerned, accused asserted that it is not Rs.8,72,153/- as contended by the prosecution.
It is Rs.9,27,153/- as the prosecution has not considered the last months rent of Rs.55,000/-, which was deducted while repaying the security deposit.
29. According to the accused, apart from the above income as contended by the prosecution, he has following income, which was not considered by the prosecution. The claim of the accused regarding his other income and its source runs like this:
29 Spl. C.C. No.294/2010
Sl.No. Source of income Amount
01 Salary drawn before check period Rs.1,61,902/-
from 07-09-1981 to 31-12-1989
02 Share received from the Rs.4,20,630/-
agricultural income of Hindu
undivided family
03 Rental income Rs.55,000/-
04 GPF withdrawal during the check Rs.1,50,000/-
period
05 GPF loan Rs.1,76,000/-
06 Loan borrowed from KGID Rs.21,290/-
07 Interest free loan borrowed by the Rs.5,00,000/-
accused from his brother-in-law
Shylesh.
08 Security deposit received from the Rs.5,00,000/-
tenant Kupendra Reddy
09 Personal loan raised by the Rs.1,50,000/-
accused from Standard Chartered
Bank
10 Loan raised from the credit card at Rs.70,000/-
Standard Chartered Bank
11 Income generated by sale of gold Rs.29,440/-
12 Loan raised by the wife of accused Rs.2,32,000/-
from ICICI Bank.
13 Professional income of the wife of Rs.2,99,761/-
the accused
14 Maturity amount received from Rs.29,682/-
NSC certificate
15 Construction cost paid by the Rs.9,75,000/-
tenant
TOTAL: Rs.37,70,705/-
30 Spl. C.C. No.294/2010
30. By admitting all his income claimed by the prosecution, which is Rs.63,34,604/- and by claiming that he has above referred additional income to the extent Rs.37,70,705/-, accused contended that, his total income during the check period was Rs.1,01,05,309/-.
31. As I said earlier, except the income referred in Sl.No. 17 and 18, other income of the accused as alleged by the prosecution was admitted by the accused. So far as the item in Sl.No.17 and 18 are concerned the accused admits those income and also source of income. However according to him, it was more than Rs.83,970/- and Rs.8,72,153/- as contended by the prosecution. Apart from admission of the accused regarding all those admitted income and its source, prosecution independently proved the same by producing the documents along with the charge sheet in respect of those admitted income. Even those documents relating to the admitted income were not disputed and denied by the accused. In view of admitted and undisputed facts relating to those income and production of documents by the investigating agency to independently prove them, I do wants discuss about the admitted income and its source. Let my confine my discussion in respect of the disputed income and disputed facts. 31 Spl. C.C. No.294/2010
32. In view of these admitted facts regarding the income and source of income, initial burden placed upon the prosecution to prove the income of the accused stands discharged. Once the prosecution able to prove those incomes and its source, there is benefit of presumption in favour of the prosecution, as provided U/sec. 20 of the PC.Act. More over, term 'known of source of income' referred under Sec.13(1)(e) of the Prevention of Corruption Act 1988 is the income, which is known to the prosecution. Hence, onus would be shifted upon the accused to prove that, apart from the above referred income, as contended by the prosecution, he had an additional income to the tune of Rs.37,70,705/- from legal sources. Now I have to consider as to whether the accused able to prove the same and discharge the onus shifted on him.
33. Regarding the degree of proof required to accept the explanation of the accused and evidence let in by him, it is necessary to refer a decision of Hon'ble Supreme Court reported in 2009 AIR SCW 5411 (State of Maharashtra V/s Dnyaneshwar Laxman Rao Wankhede). By interpreting Sec. 20 of the Prevention of Corruption Act 1988, it was held by the Hon'ble Supreme Court in the above decision that, in a case registered under the provisions of Prevention of Corruption Act, Standard of burden of proof on 32 Spl. C.C. No.294/2010 accused Vis-a-vis prosecution would differ. It was further held in the said decision that Court is required to consider explanation offered by accused, if any, only on touchstone of preponderance of probabilities and not on the touchstone of proof beyond all reasonable doubt. So the ratio laid down in the above decision is very clear that, so far as the prosecution is concerned, it has to prove the allegations leveled against the accused with proof beyond reasonable doubt, whereas the explanation offered by the accused has to be considered on the touchstone of preponderance of probability, which normally applied in case of Civil cases. Keeping in mind these principles in the background, I have to consider the explanation offered by the accused and evidence produced by him, regarding his other source of income, which I described in para 29 of this judgment.
34. According to the accused, his salary drawn before check period from 07-09-1981 till the commencement of the check period was not considered by the investigating agency to determine his actual income. As I said earlier, investigating agency has considered the check period for determining the income, assets and expenditure of the accused as from 01-01-1990 to 03-11-2007. Admittedly, this accused joined the service of Police Department as an Inspector of 33 Spl. C.C. No.294/2010 Police on 07-09-1981. Normally in the cases like this, for fair determination of income, assets and expenditure of the delinquent officials, check period would be considered from the date of official joining the service till the date of search or raid, so that all the income acquired by him during his service can be considered. In this particular case the investigating agency has considered the check period from 01-01-1990, which is about 9 years after the accused jointing the service. There by the salary and other income of the accused acquired during the said 9 years period was not at all considered by the investigating agency. I will consider in my later discussion as to the actual reparations of not considering the check period from the date of accused joining the service and not considering his income, both salary and agricultural income earned by him before the check period. At present, let me discuss about the income, assets and expenditures of the accused during the check period from 01-01-1990 to 03-11-2007.
35. The accused contended that the investigating agency has committed an error in considering his agricultural income as Rs.83,970/- only, for the check period, though it was much more than that. According to the accused, as per the declaration made by him in his Annual Property Report (APR) during the year 1990 to 2007 his share from the agricultural income would be about Rs.12,00,000/-. As 34 Spl. C.C. No.294/2010 per the report given by the Tahasildar, Siraguppa, total income from the 18 acres agricultural land during the cheque period would be about 46,00,000/-. The accused has got 1/4th share over the same. By deducting the expenses incurred for cultivation and growing of crops, actual income of the accused would be more Rs.5,04,000/-. But the prosecution has considered it as only Rs.83,970/- and thereby the investigating agency has not considered the additional amount of Rs.4,20,630/-.
36. There is no dispute about the accused owning the ancestral landed properties at Shirigerahalli village of Siriguppa Taluk. The investigating agency has collected the documents in respect of those ancestral properties owned by the family of the accused from Tahsildar Siruguppa. Even as per the charge sheet, joint family of the accused owned 18 Acres of landed properties at Sirigerehalli village of Siriguppa Taluk of Bellary District. Those landed properties were standing in the name of the father of accused Sri. Basavannappa. As per the investigating agency and as referred in page No.44 of Ex.P.13 charge sheet, total income received from the 18 Acres of land from the year 1990 to 2007 is Rs.3,35,889/-. Since the father of the accused has got four sons, including the accused, he has got 1/4th share. 35 Spl. C.C. No.294/2010 Therefore, by dividing Rs.3,35,889/- by four, 1/4th share of accused was considered as Rs.83,970/- by the investigating agency.
37. According to the accused, as per the annual property report submitted by him, his income from the agricultural property during the check period will be Rs.12,00,000/-. In this regard, accused drawn the attention of this court to the annual property report, which was marked as per Ex.P.27 to Ex.P.57. The annual property report submitted by the accused as per Ex.P.27 to Ex.P.57 reveals that he declared his income from the above referred 18 Acres of ancestral landed property as Rs.75,000/- during the year 2004-05, Rs.75,000/- during the year 2003-04, Rs.75,000/- during the year 2002-03, Rs.75,000/- during the year 2001-02, Rs.75,000/- during the year 2000-01, Rs.75,000/- during the year 1990-2000, Rs.75,000/- during the year 1998-99, Rs.75,000/- during the year 1997-98, Rs.50,000/- during the year 1996-97. Even for the other years during the check period the accused has declared his income from the ancestral agricultural property as Rs.50,000/- per year.
38. Though the investigating agency, during the course of investigation, has collected all those annual property reports submitted by the accused, it has not considered the income declared by the accused as his agricultural income, while filing the charge sheet. The 36 Spl. C.C. No.294/2010 explanation offered by the Investigating Officer for not considering the annual property report and income declared in the annual property report is that the accused has deliberately declared his agricultural income on the higher side in order to protect his illegally earned disproportionate assets. This reason assigned by the investigating agency for not accepting the annual property report and declaration given in the annual property report regarding agricultural income of the accused cannot be accepted by this court.
39. At undisputed point of time and much before conducting of search and raid and much before registration of FIR and this case, accused has declared his income from the agricultural land. It is pertinent to note here that, so far as declaration of income by the accused, either in his annual property report or in his annual assets and liabilities statement or in his income tax returns, it has to be considered by the investigating agency and this court. No discretion vests with the investigating agency or this court for not considering the income of the accused, which he has already declared either in his income tax returns or in his annual assets and liability statements and annual property report. The discretion with the court or with the investigating agency lies only in case of undeclared income. So far as 37 Spl. C.C. No.294/2010 the declared income is concerned, there are no such discretion vests either with the court or with the investigating agency for not considering the same.
40. Apart from that, I found absolutely no basis and rationality in considering the agricultural income of this accused as Rs.83,970/- only for the period of 18 years from 01-01-1990 to 03-11-2007. As I said earlier, family of the accused was owning 18 Acres of landed properties, in which this accused was having 1/4th share. At the rate of Rs.83,970/- for 18 years, income for one year would be Rs.4,665/-. A person may get more than Rs.4,665/- per year, when he got 1/4th share in 18 Acres of landed properties.
41. The Investigating Officer has collected the documents relating to those landed properties from Tahasildar, Siriguppa and produced along with the charge sheet. This document was not marked by the investigating agency during the course of their evidence. Rather it was marked by the accused during the course of his evidence as Ex.D.59 and this document contain 62 pages. In fact, majority of the documents marked by the accused during the course of his evidence were the documents, which were collected by the investigating agency during the course of investigation and produced along with the charge 38 Spl. C.C. No.294/2010 sheet. The Tahasildar, Siriguppa has stated in his letter, which is in Ex.P.59 that, for cultivation of the irrigated land the expenses per acre would be Rs.10,000/- and it is Rs.2,000 to 3,000 per acres, for dry land. The RTC of those landed properties, which is in Ex.P.59 shows that groundnut, sun-flower and paddy crops were grown in those lands during the check period. The entries in the RTC would also indicate that, in all these years difference types of crops were grown and it was not kept as fallow land. Whatever may be the nature of the crops grown in those 18 Acres of land, income from the 18 Acres of land for the period of 18 years from 1990 to 2007 would be much more than Rs.3,35,889/-. There is no scientific approach by the investigating agency while considering the income from the agricultural property owned by the accused family.
42. More over while determining the figure relating to the annual income from those landed property, investigating agency has considered the expenses, which was prevailing during the year 2008- 09, which is subsequent to the check period. It is well known fact that the expenses for cultivation of the landed property and growing of crops would increase day by day. The expenses for cultivation during the year 2008-09 may not be as same as during the year 1990. But 39 Spl. C.C. No.294/2010 the investigating agency has considered the expenses of the year 2008-09 for the year 1990-91 also, which is not just and proper.
43. More over, statistics considered by the Tahasildar has also no basis for determining the actual agricultural income of the accused. The reasons assigned by the investigating agency for not considering the agricultural income declared by accused in his annual property report is also not acceptable.
44. It is pertinent to note here that so far as the agricultural income is concerned, investigating agency has considered only the income which he derived from the year 1990 to 2007 by considering it as a check period. Even though the accused and his family owned 18 Acres of land before the check period and the accused was having 1/4th share over the same and he used to receive that income before the check period, it was not at all considered by the investigating agency. Again no explanation is forth coming from the investigating agency for not considering the income of the accused, which he received from the joint family property before the check period. Under all these circumstances I have to say that theory of the prosecution that the accused has agricultural income of Rs.83,970/- only, during the check period of 18 years, cannot be accepted by this court. By 40 Spl. C.C. No.294/2010 considering the fact that the joint family of the accused was owning 18 Acres of land, wherein this accused was having 1/4th share and in those 18 Acres of land crops like groundnut, sun-flower and paddy crops were grown, as evident from the entries in the RTC and report given by the concerned Revenue Inspector and fact that the accused has declared his income in his annual property report from agricultural source, I have to accept the explanation offered by the accused about he having the agricultural income of Rs.5,04,600/- during the check period, which runs about 18 years.
45. As per report given by the Tahsildar, Siraguppa, income from 18 acres land during the check period would be about Rs.46,00,000/- The accused is having ¼ share over the same. Accordingly, income declared by the accused in his annual property report filed during the check period as Rs.12,00,000/- is almost equallant to ¼ share in the total income shown by the Tahasildar, Suraguppa, as per Ex.D.59. There fore one can not say that the accused has deliberately declared excess income in his annual property report so as to legalize the illegally earned property or protect his disproportionate assets. The Investigating agency committed error in considering expenses on the higher side by considering the expenses of the year 2009 for the year 1990 to 2007. There by they arrived to the wrong finger as Rs. 41 Spl. C.C. No.294/2010 3,35,889/- as total income of 18 acres land for 18 years and share of the accused as Rs.83,970/-. The income of the accused from agricultural sources would be about Rs.11,50,000/- to Rs.12,00,000/-. By deducting 50% of the same towards the expenses, actual income of the accused would be Rs.5,75,000/- to Rs.6,00,000/-. There fore, his plea that he had the income of Rs.5,04,600/- from his Hindu undivided family property can be easily accepted by this court. At the rate of Rs. 5,04,600/- for 18 years, income per year would be Rs.28,034/-. Being the owner of 18 acres of land and having 1/4th share over the same, accused would have got income of Rs.28,034/- per year from 18 acres of land as his 1/4th share. Therefore, accused having income of Rs.5,04,600/- from 18 acres land for 18 years would have been easily accepted as it is not on the higher side and not unscientific and not irrational. Since the investigating agency has considered it as only Rs.83,970/-, an amount of Rs.4,20,630/-, which is in excess of Rs.83,970/-, has to be added to the income of the accused to make the income of the accused as Rs.5,04,600/- as his agricultural income from his Hindu undivided property.
46. Now let me consider the dispute between the prosecution and the accused relating to the rental income. Admittedly, the accused 42 Spl. C.C. No.294/2010 has let out his house bearing No.5490/A situated at HSR Layout, Bangalore, to M/s. Sapphire Infrastructure Development Private Limited, Koramangala, Bengaluru, on monthly rent of Rs.55,000/-. The prosecution has accepted the accused having rental income during the check period. However, investigating agency shown the rental income of the accused as Rs.8,72,153/-. But, the accused has disputed the same. According to the accused, his rental income during the check period was Rs.9,27,153/-. According to the accused, investigating agency has not considered the last month rent of Rs.55,000/-, which was deducted while repaying the rent advance. The investigating agency considered the rental income of the accused as Rs.8,72,153/- whereas the accused claims it as Rs.9,27,153/- and difference between them is Rs.55,000/- which is last month rent, which was deducted while repaying the rent advance.
47. The investigating agency has secured the letter from the tenant M/s. Sapphire Infrastructure Development Private Limited, Bengaluru, during the course of the investigation regarding the actual rent paid by them. The letter issued by the company and documents submitted by them regarding actual rent paid by them were produced along with the charge sheet. Even though the prosecution has cited 43 Spl. C.C. No.294/2010 one of the officials by name Basavaraju, who is the general manager of M/s. Sapphire Infrastructure Development Private Limited, Bengaluru, as a witness in the charge sheet, as CW.11, they have not examined him during the course of their evidence. Therefore, accused summoned said Basavaraju and examined as DW.1 and the documents submitted by them to the investigating agency were marked as per Ex.D.5 to Ex.D.8. DW.1, during the course of his evidence, deposed that the Director of their company was occupying the house belongs to the accused at HSR Layout as a tenant and there was a lease agreement between them in this regard as per Ex.D.6. DW.1 further deposed that they have spent Rs.9,75,000/- for providing additional work for the leased out premises and the accused has not repaid the same. DW.1 further deposed that while entering into the rent agreement, their company has paid rent advance of Rs.Five Lakhs to the accused and same was repaid by the accused in installments within the period of two years from the date of vacating the premises.
48. Ex.D.5 is the letter issued by M/s. Sapphire Infrastructure Development Private Limited, Koramangala, Bengaluru, to the investigating agency, along with the lease agreement, which is marked as per Ex.D.6. Along with Ex.D.6, they have furnished a letter 44 Spl. C.C. No.294/2010 regarding payment of rent to this accused as per Ex.D.7 and payment of electricity charges. As per Ex.D.7, total amount paid by the tenant to this accused was Rs.8,72,153/- deducting the TDS amount, out of the monthly rent of Rs.55,000/- from February 2006 to August 2007. The tenant vacated the premises during September 2007. Admittedly, the last month rent of Rs.55,000/- was not included in Ex.D.7 since that amount was not actually paid to the accused. Rather it was deducted while repaying the rent advance. The Investigating Officer, who was examined before this court as PW.6, in page 5 of his cross- examination, specifically admitted that they have not taken into consideration a sum of Rs.55,000/- as income of the accused, out of rent mentioned in item 5 of Ex.P.58. Ex.P.58 is the report relating to the rent received by the accused during the check period. There was no reason for the investigating agency to deduct the last month rent. The investigating agency has not considered the rent advance of Rs. Five lakhs as income of the accused on the ground that it was repayable. When both the rent advance paid by the accused was not considered as his income and repayment of the loan advance was not considered as expenditure, then the amount of Rs.55,000/- which was deducted while repaying the rent advance should have been considered as income of the accused.
45 Spl. C.C. No.294/2010
49. It is pertinent to note here that there are entries in the pass-book of Canara Bank regarding receipt of the rent by this accused from his tenant. Even in the income tax returns of the accused, which is marked as per Ex.D.50 to D.55, he has shown the rental income as his income at the rate of Rs.55,000/- per month and paid the income tax on them. Under all these circumstances, I have to say that the investigating agency has committed an error in not considering the last month's rental income. The tenant while paying the rent deducted the TDS. By deducting the TDS total rent paid to the accused till August 2007 was shown as Rs.8,72,153/-. Even in the last months rent of Rs.55,000/- TDS of Rs.8498/- has to be deducted and remaining amount of Rs.46,502/- has to be added as the total rental income of the accused. Therefore, rental income of the accused has to be considered as Rs.9,18,655/- by adding Rs.46,502/- to Rs.8,72,153/-, which was already shown as the rental income of the accused. So another amount of Rs.46,502/- has to be added to the income of the accused.
50. It is the case of the accused that he has withdrawn a sum of Rs.1,50,000/- from his GPF account during the check period and it was also not considered by the investigating agency as his income. If I 46 Spl. C.C. No.294/2010 peruse the income of the accused, which was considered by the investigating agency and which was described in para 27 of this Judgment, GPA withdrawal of Rs.1,50,000/- was not at all shown as the income of the accused, though it was acquired during the check period. It is note that the prosecution or investigating agency has not aware about the accused withdrawing the amount of Rs.1,50,000/- from his GPF account during the check period. There is reference in page No.49 and Sl.No.19 of Ex.P.13 charge sheet regarding GPF withdrawal made by the accused. But, in that list, GPF withdrawal amount was shown as nil. This would indicate that the investigating agency knows about the accused withdrawing the amount from his GPF account.
51. Regarding non-inclusion of GPF withdrawal as the income of the accused, one can find explanation by the investigating agency in page 47 of Ex.P.13 charge sheet. This explanation goes to show that the investigating agency has received letter from the Accountant General regarding GPF withdrawal of Rs.1,50,000/- by this accused. But, Investigating Officer has not considered the same as his income, because said amount was withdrawn during April 2006 for performance of marriage of daughter of the accused. Therefore, 47 Spl. C.C. No.294/2010 investigating agency opined that, since the accused has used that amount for meeting the marriage expenses of the daughter of the accused, it cannot be considered as his income. Now I have to determine as to whether this explanation offered by the investigating agency, for non-inclusion of GPF withdrawal amount of Rs1,50,000/ as an income of the accused, can be accepted by this court or not.
52. Apart from the admitted facts regarding GPF withdrawal by the accused to an extent of Rs.1,50,000/-, there is also document issued by Accountant General, Bengaluru, which is marked as per Ex.P.59. The investigating agency has secured the information from the Accountant General, (AG) Bengalure regarding subscription and withdrawals of the amount relating to GPF account of the accused. As per Ex.P.59, partial final withdrawal of Rs.1,50,000/- was made during April 2006. It is also written in Ex.P.59 that the said amount was withdrawn for the purpose of marriage of his daughter. On the basis of the said letter, investigating agency held that the GPF withdrawal was made for meeting the marriage expenses of the daughter of the accused.
53. Admittedly, accused was not having any daughter. The accused was having only two sons. Even as per the prosecuting 48 Spl. C.C. No.294/2010 agency, accused has no daughter. Under such circumstances, accused using that amount for meeting his daughters marriage expenses would not arise. It is not made note to this court as how the accused was permitted to withdraw the amount from his GPF account as partial final withdrawal for the purpose of marriage of his daughter, when he has no daughter. If the accused has assigned wrong reason for partial final withdrawal amount from his GPF account, it is for the competent authority to take action against him, if the said withdrawal is made by citing the reason that he has to perform the marriage of his daughter. But, on that score, this court cannot ignore that amount as the income of the accused, when it was withdrawn by the accused from his GPF Account.
54. It is pertinent to note here that in case of withdrawal amount from GPF account, if it is a partial withdrawal, it is not liable to be repaid. Whereas, if the loan is borrowed from GPF Account, then it is to be repaid from the monthly salary of the accused. This is the major difference between withdrawal of the amount from GPF account as a partial withdrawal or as GPF loan. In this particular case, amount of Rs.1,50,000/- is a partial final withdrawal from the GPF account of the accused. Hence, accused need not repay it. Therefore, it would have 49 Spl. C.C. No.294/2010 been considered as an income of the accused since that withdrawal is made during the check period. Even for the sake of argument, it is presumed that the accused has withdrawn the amount for performing the marriage of his daughter and spent that amount to perform the marriage of his daughter, amount of Rs.1,50,000/- has to be considered as his income. If the accused has any daughter and her marriage was performed, prosecution can consider the marriage expenses under the head expenditure. The investigating agency has not considered the marriage expenses of the daughter of the accused under the head expenditure. This would indicate that accused has no daughter and he has not performed the marriage of his daughter. There was no valid reasons for the investigating agency for not considering said amount as the income of the accused. Therefore, amount of Rs.1,50,000/- withdrawn by the accused from his GPF account would have been considered as the income of the accused.
55. It is again relevant to consider the statement given by the Investigating Officer, who was examined as PW.6. During the course of his cross-examination in page 5, PW.6 has specifically admitted that he has not taken into account of GPF withdrawal of Rs.1,50,000/- as the income of accused, though it was mentioned in Ex.P.59. The reason assigned by the investigating agency for not considering the 50 Spl. C.C. No.294/2010 GPF withdrawal of Rs.1,50,000/- as income of the accused is not justified. Rather, same would have been considered as his income, as it was acquired by him by withdrawing the amount from his GPF account during the check period and said amount is not liable to be repaid. Therefore, this amount of Rs.1,50,000/- has to be added as income of the accused.
56. According to the accused during the check period he has borrowed the GPF loan of Rs.1,76,000/- which was not considered as his income by the investigating agency. Admittedly, GPF loan borrowed by the accused was not at all considered as the income of the accused. Again it was within the knowledge of the investigating agency, as there is reference about the same in Ex.P.59 letter issued by the Accountant General. For considering the GPF withdrawal the investigating agency has considered the Ex.P.59 letter. But, regarding GPF loan, though there is reference in Ex.P.59 letter, it was not considered by the investigating agency.
57. Ex.P.59 letter shows that Rs.25,000/- was borrowed during the January 1999, Rs.16,000/- was borrowed during July 1999, Rs.35,000/- was borrowed during November 2001 and Rs.1,00,000/- was borrowed during August 2005 and in total, during the period from 51 Spl. C.C. No.294/2010 January 1999 to July 2005, GPF loan of Rs.1,76,000/- was borrowed by this accused. This borrowing was during the check period, as it is from January 1999 to August 2005.
58. In the charge sheet, no explanation is forth coming from the investigating agency for not showing the GPF loan as an income of the accused. It appears that the investigating agency has not considered it as an income, because it is to be repaid by the accused and it was already refunded. It is true that in Ex.P.59 itself Accountant General has stated that the GPF loan borrowed by the accused was refunded.
59. As I said earlier, amount from the GPF as partial final withdrawal is not repayable, whereas GPF loan is to be repaid by way of monthly deduction from the salary of the official. If I draw my attention to the salary extracts of the accused, which was marked as per Ex.D.9 to Ex.D.24, GPF loan was repaid by deducting from the monthly salary of the accused. In-fact Ex.D.9 to Ex.D.24 are the documents produced along with the charge sheet and they were secured by the investigating agency during the course of investigation. The accused has got marked those documents as Ex.D.9 to Ex.D.24 during the course of his evidence. All these salary extracts shows that 52 Spl. C.C. No.294/2010 the amount from the monthly salary of the accused was deducted towards the repayment of the GPF loan.
60. While considering the salary of accused during the check period, only the net salary was considered and not the gross salary. From the gross salary, deductions were made including deduction towards the GPF loan. The salary of accused during the check period was considered by deducting those amounts and only the net salary was considered as his income. When only the net salary of the accused was considered as his income during the check period, then GPF loan amount would have been shown as his income, even though it was repayable or refunded.
61. Merely because the GPF loan was repayable or refunded, investigating agency cannot ignore the said amount, when it has considered only the net salary of accused as his income. Therefore, this amount of Rs.1,76,000/- has to be added as income of the accused since the GPF loan was borrowed during the check period and repayment was made from monthly salary of the accused.
62. One more contention urged by the accused regarding his income is about loan amount which he borrowed from KGID to the 53 Spl. C.C. No.294/2010 tune of Rs.21,290/- and the investigating agency not considering the same. Admittedly, accused has borrowed loan of Rs.21,290/- from KGID during the check period. The Investigating Officer, who was examined before this court as PW.6, in page 5 of his cross- examination, has admitted about accused borrowing the KGID loan amount of Rs.21,290/- and he not considering the same as income of the accused. Again no explanation is forth coming from investigating agency for not considering the KGID loan of Rs.21,290/- as the income of the accused. Whatever the discussion made by me regarding non- inclusion of GPF loan is also applicable to this loan also. Even the KGID loan was repaid by deducting from monthly salary of the accused and only the net salary of the accused was considered as his income. Under such circumstances, investigating agency should have and would have considered the KGID loan of Rs.21,290/- as the income of accused. Therefore, this amount has to be added as the income to the accused.
63. According to accused, during the check period, he has borrowed the interest free loan of Rs.5,00,000/- from his brother-in- law Shylesh, who was working in abroad, for construction of house and said amount was not considered by the investigating agency as his income. Admittedly, investigating agency has not considered the 54 Spl. C.C. No.294/2010 amount of Rs. Five lakhs, which was borrowed by the accused from his brother-in-law Shylesh as interest free hand loan. Now I have to consider as to whether the said loan was borrowed by the accused legally and it can be considered as his income. As a public servant, working as a Police Inspector, before borrowing any such kinds of loan accused has to obtain the permission from the competent authority. The accused claim that he has borrowed the said loan by obtaining the permission from the competent authority. The accused has produced the order permitting him to borrow the loan as per Ex.D.25. Again this document was secured by the investigating agency during the course of investigation, from the Police Department and produced along with the charge sheet. But, prosecution has not marked the same during the course of their evidence. It is the accused, who has got marked the said order as per Ex.D.25. It is evident from Ex.D.25 that, vide Order dated:18-03-2005 of the Additional ADGP and Commissioner of Police City Bangalore, this accused was permitted to construct the house in his site at HSR Layout at the cost of Rs.25-Lakhs. For meeting the expenses for construction of house, accused was permitted to borrow the loan of Rs.15-lakhs from the Canara Bank, Rs.3-Lakhs from the sale proceeds of the site, which was purchased with the permission of the Department, Rs.5-Lakhs interest free loan 55 Spl. C.C. No.294/2010 to be given by the brother-in-law working in London, Rs.2-lakhs from the savings of accused and his wife. Ex.D.25 letter clearly goes to show that the accused was permitted to borrow the loan of Rs.5-lakhs from his brother-in-law to construct the house. When the permission has already been accorded to the accused to borrow the loan of Rs.5-lakhs for construction of house and the cost of construction of house was included in the expenditure list of the accused, this amount of Rs.5-lakhs would have been considered by the investigating agency as the income of the accused.
64. Regarding the actual receipt of loan amount, there are entries in Canara Bank pass-book of this accused and also Union Bank of India pass-book of wife of this accused, which were marked as per Ex.D.56 to Ex.D.58. As per the entries in those pass-books, an amount of Rs.2,50,000/- was received on 08-04-2004 and Rs.2,00,000/- was received on 15-04-2005. The accused claims that remaining amount of Rs.50,000/- was received by him by cash and thereby he has received total amount of Rs. Five-lakhs from his brother-in-law. When there is permission for this accused to borrow the hand loan of Rs.5 lakhs from his brother-in-law and said loan was borrowed for the construction of house and expenditure for the construction of house was considered by the investigating agency, said loan amount would have been 56 Spl. C.C. No.294/2010 considered as the income of the accused. The investigating agency failed to offer any explanation for not including the said amount as the income of the accused. The Investigating Officer, who was examined as PW.6, during the course of his cross-examination, in page 5, has admitted about accused borrowing the interest free loan of Rs.5-lakhs from his brother-in-law. In spite of this admission, Investigating Officer failed to offer any explanation for not including the said amount as the income of the accused. According to me, it is wrong on the part of the investigating agency for not considering this amount of Rs.5-lakhs as the income of the accused. Hence, this amount of Rs.5-lakhs has to be included as income of the accused.
65. According to the accused, he has received the rent advance of Rs.5-lakhs from tenant, while letting out the house property at HSR layout and same was not considered as his income. There is no dispute that the house property owned by this accused was let out to M/s Sapphire Infrastructure Development Private Limited, Bengaluru, for the occupation of their Managing Director Mr. Kupendra Reddy. The rent agreement in this regard is produced and marked as per Ex.D.6. One of the officials of M/s Sapphire Infrastructure Development Private Limited, was examined as DW.1 and he has also deposed about the 57 Spl. C.C. No.294/2010 rent agreement between them and they paying the advance of Rs.5-lakhs to this accused. DW.1 further deposed that said rent advance was refunded to them by the accused subsequently. It is true that the investigating agency has not considered the said amount as the income of the accused. According to the investigating agency, since that amount was repayable and repaid after tenant vacating the premises, it was not considered.
66. The receipt of rent advance of Rs.5 lakhs by this accused was during the check period. Even the tenant vacating the premises was also during the check period. The letter issued by M/s Sapphire Infrastructure Development Private Limited, Koramangala, Bengaluru, as per Ex.D.6 goes to show that they have occupied the premises during February 2006 and vacated the premises during September 2007. The check period was considered till 03-11-2007. So the tenant occupying the premises and vacating the premises was during the check period. DW.1, who is the Managing Director of M/s Sapphire Infrastructure Development Private Limited, Koramangala, Bengaluru, deposed during the course of his evidence that rent advance was repaid by the accused in installments within the period of two years after they vacating the premises.
58 Spl. C.C. No.294/2010
67. Normally the rent advance would be repaid when the tenant vacate the premises. If the accused and the tenant claim that it was repaid subsequent to the check period and in installments running to the span of two years, burden is upon the accused to prove the same. The investigating agency has not considered the rent advance of Rs.5 lakhs as the income of the accused, because it was repaid during the check period itself. This explanation of the investigating officer can be accepted, as it is natural to repay the rent advance at the time of tenant vacating the premises, which is September 2007. If the accused claims that he has repaid the amount subsequent to the check period, he has to positively prove it by leading cogent and convincing evidence before this court. Mere oral statement of the accused and DW.1 is not sufficient to accept their oral testimony, that too regarding the repayment of Rs.5-lakhs subsequent to the check period. It appears that the accused wants Rs.5-lakhs to be shown as income and do not wants the said amount to be shown as expenditure, in order to increase or expand the figure of his income. It is only to increase his income figure and decrees the expenditure figure during the check period, accused wants to claim that he repaid the rent advance subsequent to the check period.
59 Spl. C.C. No.294/2010
68. It is pertinent to note here that both the accused and his tenants are not the laymen or common men to make the payments by way of cash, that too huge sum of Rs.5-lakhs. The tenant is a company whereas the owner is the Inspector of Police. Therefore, if an amount of Rs.5-lakhs was paid subsequent to the check period, even it was in installment, there would have been some documents with both the parties. Neither the accused nor the tenant has produced any document to show that repayment of the rent advance of Rs.5-lakhs was subsequent to the check period. As I said earlier, normally rule regarding repayment of rent advance will be at the time of tenant vacating the premises. Therefore, this court has to say that the accused has repaid the rent advance when the tenant has vacated the premises during September 2007.
69. There was another reason for this court to believe the same, because the last month rent of Rs.55,000/- was not considered by the Investigating Officer and was not included in Ex.D.7, since that amount was deducted while repaying the rent advance. This would also indicate that the rent advance was repaid at the time of tenant vacating the premises during September 2007. If the accused asserts otherwise, he has to prove the same. Absolutely, no documents were 60 Spl. C.C. No.294/2010 produced by the accused to prove that he paid the rent advance subsequent to the check period. Under such circumstances, the rent advance of Rs.5-lakhs cannot be considered as income of the accused. The Investigating Officer has not considered the rent advance of Rs.5-lakhs as income of the accused and also not considered the repayment of the said amount as expenditure. The Investigating Officer has justified in doing so. Therefore, I found no such illegality in the act of the Investigating Officer in not considering the said amount. Hence, the explanation offered by the accused in this regard cannot be accepted by this court. Accordingly, this amount of Rs.5-lakhs cannot be included as the income of the accused as claimed by him.
70. It is the case of the accused that the amount, he received by sale of gold jewelleries to the tune of Rs.29,440/- was not considered as his income by the investigating agency, though it was reported. In this regard, accused has drawn the attention of this court to the permission accorded to him by the Police Department to sell the gold ornaments, while purchasing the site at Bellary. Said permission letter, though produced along with the charge sheet, accused has got marked the same during the course of his evidence as Ex.D.28. It is evident from Ex.D.28 that, during the year 1990, accused applied permission for purchase of sites measuring 40 X 64 feet, situated at 61 Spl. C.C. No.294/2010 Veeranagowda colony, Bellary for Rs.48,000/- from one Smt. Sumangaladevi and Smt. Susheela. Then the accused was working as PSI at Sedam. The Superintendent of Police, Gulbarga, vide order dated:05-09-1990, has permitted the accused to purchase those sites for sale consideration of Rs.48,000/-. To meet the expenses for purchase of those sites, accused was permitted to sell 10-Tolas of gold and his personal savings of Rs.18,000/-.
71. The investigating agency cannot dispute this document because it is they have collected the same during the course of investigation and produced the same along with the charge sheet. While showing the assets of the accused, investigating agency has considered the cost of both these sites as Rs.48,000/-. When investigating agency has considered the value of those sites as the assets of the accused, source from which he acquired those sites, has to be considered as his income. The purchase of site and sale of gold ornaments for purchase of sites, as per the permission of the Superintendent of Police, Gulbarga, was during the check period. Therefore, it would have been considered by the investigating agency as the income of the accused.
62 Spl. C.C. No.294/2010
72. The Investigating Officer, who was examined before this court as PW.6, during the course of his cross-examination, admitted about accused acquiring the amount by selling gold ornaments so as to purchase the sites. PW.6 also admitted that he has not considered the amount generated from the sale of gold as the income of the accused. The investigating agency was not justified in not considering the said amount as the income of the accused. Hence, an amount of Rs.29,440/- has to be added to the income of the accused.
73. Another contention urged by the accused is about investigating agency not considering the loan amount of Rs.2,32,000/- borrowed by his wife from ICICI Bank, Bangalore, to the tune of Rs.2,32,000/- for purchase of car, even though the value of the car was taken as the asset of the accused. In this regard, accused has drawn the attention of this court to the letter issued by the ICICI Bank to the investigating agency and same was produced along with charge sheet and marked as per Ex.D.29 and 30. It is evident from Ex.D.29 that ICICI Bank has issued a letter to the investigating agency certifying that wife of this accused by name Smt. Sandhya has borrowed a loan of Rs.2,32,000/- for purchase of second hand car bearing registration No. KA-03-MB-5203. It was also stated in Ex.D.29 letter that the said loan was repaid on 03-11-2007 and amount of 63 Spl. C.C. No.294/2010 Rs.2,32,000/- was paid towards the principal and Rs.32,146-57 ps, was paid towards the interest on said loan. Said letter of the ICICI Bank was accompanied by the loan account extract, which was marked as Ex.D.30. It appears that in Ex.D.29 letter there is some clerical error showing the date of disbursement of loan as 20-11-2009. In-fact the loan was disbursed on 20-11-2005, as evident from the loan account extract. The date of repayment of loan is shown as 03-11- 2007 in the said letter. When the loan was repaid by 03-11-2007 question of disbursement of loan on 20-11-2009 would not arise.
74. The 'B' extract relating to the said vehicle is also produced along charge sheet by obtaining the same from RTO, Bangalore-East. Again the accused got marked the said 'B' extract as per Ex.D.48. As per the said 'B' extract, vehicle was purchased in the name of wife of this accused from Dr. B.G. Rudrappa and RC was changed on 24-11- 2005 in the name of the wife of this accused, which also indicates that purchase of vehicle was during November 2005. So there is convincing evidence before this court to show that for purchase of said car in the name of wife of the accused, loan of Rs.2,32,000/- was borrowed from ICICI Bank. Even the said loan was repaid. Both borrowing of the loan and repayment of the loan was during the check period. 64 Spl. C.C. No.294/2010
75. If I draw my attention to the list of assets of this accused, as considered by the investigating agency, at Sl.No.18, they have shown TATA Indica car as one of the asset of the accused and shown its value as Rs.2,32,000/-. If I draw my attention to the expenditure of the accused, as claimed by the prosecution, they have shown interest paid towards the car purchase of loan from ICICI Bank as Rs.32,146/- as one of the expenditure of the accused. So the value of the car to the tune of Rs.2,32,000/- was shown as the assets of the accused, whereas the interest paid towards the loan borrowed for purchase of car was shown as the expenditure of the accused. When both these figures were shown under the head assets and expenditure of the accused, loan borrowed by the accused to purchase the said car in the name of his wife from ICICI Bank would have been shown as his income. The investigating agency has failed to consider the same without any justifiable reasons. Therefore, this amount of Rs.2,32,000/- has to be added as income of the accused.
76. According to the accused, maturity amount received by him from NSC certificate to the tune of Rs.29,682/- was not considered as his income, even though the NSC deposited amount of Rs.15,000/- was considered as his expenditure. In this regard, accused has drawn the attention of this court to the letter issued by the Assistant Post 65 Spl. C.C. No.294/2010 Master, which was produced along with the charge sheet. Again, though this document was produced along with the charge sheet, it was not marked by the prosecution. Therefore, it is the accused, who has got marked the same during the course of his evidence as Ex.D.46. It is evident from Ex.D.46 that the postal department issued a letter to the Investigating Officer certifying that on 16-02-2000 this accused has purchased the NSC worth Rs.15,000/- As per the said letter, said certificate was discharged on 03-04-2007 and an amount of Rs.29,682/- was paid to the accused. Again the accused investing an amount in NSC and its maturity and the accused receiving the matured amount of Rs.29,682/- was during the check period and it was also within the knowledge of the investigating agency. If I again draw my attention to the expenditure of accused, as considered by the investigating agency, in Sl.No.27, they shown Rs.15,000/- as the expenditure of the accused towards the purchase of NSC. When the investigating agency has received Ex.D.46 letter from the Postal Department, it would have considered the maturity amount received by the accused as his income, when that amount was received on 03- 04-2007 which is within the check period. Again, the investigating agency has committed an error in not considering the amount of Rs.29,682/- as the income of the accused. The Investigating Officer, 66 Spl. C.C. No.294/2010 who was examined as PW.6, admitted during the course of his evidence about he not including the amount of Rs.29,682/-, which the accused received from his NSC certificate after its maturity. Therefore, said amount of Rs.29,682/- has to be added as the income of the accused.
77. The accused contended that at the time of letting out his house at HSR Layout, its construction was not fully completed. Therefore, tenant agreed to complete the construction. Accordingly, an agreement was entered between them and tenant spent Rs. 9,75,000/- to complete the construction. Therefore, accused contended that, said amount has to be added as his income. In this regard the accused has drawn the attention of this court to the agreement dated 18-01-2006 entered into between him and his tenant, which is marked as per Ex.D.6 and the letter issued by the tenant to the Investigating Officer as per Ex.P.58 and Ex.P.5. The accused has also examined the Managing Director of M/s. Sapphire Infrastructure Development Private Limited, Bengaluru, which is the tenant under the accused, to prove the same.
78. Even for the sake of argument this court accepts that the tenant has spent Rs.9,75,000/- for completion of the construction of 67 Spl. C.C. No.294/2010 the house, this amount cannot be considered as the income of the accused. If the accused able to prove the same, at the most, this amount can be deducted from construction cost, which is shown as the assets of the accused. I will consider this dispute while considering the question of construction cost incurred by the accused for construction of house at HSR Layout, under the head assets. But, considering from any angle and at any stretch of imagination, this amount cannot be considered as income of the accused because, he has not actually received that amount. Therefore, question of considering the amount of Rs.9,75,000/- as the income of the accused would not arise.
79. According to the accused, he borrowed personal loan of Rs.1,50,000/- and credit card loan of Rs.70,000/- from Standard Chartered Bank, Bangalore, through his credit card and same were not considered by the investigating agency as his income. In this regard, the accused has drawn the attention of this court to the documents secured by the investigating agency from the Standard Chartered Bank, Bangalore and produced along with the charge sheet in page 49 and 50 of Vol.No.5. Even though these documents were secured by the investigating agency during the course of investigation and produced along with the charge sheet, prosecution has not marked the same as their evidence. Rather, these documents were marked by the 68 Spl. C.C. No.294/2010 accused during the course of his evidence as Ex.D.26 and Ex.D.27. In- fact, Ex.D.26 is a letter issued by the Standard Chartered Bank to the Investigating Officer furnishing the particulars relating to the credit card held by this accused with their bank and also amount withdrawn and loan borrowed under the said credit card. It is evident from Ex.D.26 that an amount of Rs.1,50,000/- was borrowed as a loan from the Standard Chartered Bank by this accused and including the interest a sum of Rs.1,53,407/- was shown in page 2 of Ex.D.26. The date of sanction of loan was on 22-10-2003, which is during the check period. It is evident from Ex.D.27 that credit card withdrawal of Rs.70,000/- was made by this accused for paying the same to M/s Chabria and Sons, Bangalore, while purchasing the materials for construction of house. Again this borrowing of the loan was made during the year 2005, which is during the course of check period. Both these loan amounts were not considered by the investigating agency as the income of the accused, even though they collected the documents and it was within the knowledge of the investigating agency.
80. The Investigating Officer, who was examined before this court as PW.6, during the course of his cross-examination in page 5 69 Spl. C.C. No.294/2010 has admitted about he securing the documents relating to accused borrowing the loan of Rs.1,50,000/- and Rs.70,000/-. No explanation has been offered by the prosecution in the charge sheet or during the course of evidence for not including the said amount as the income of the accused.
81. If I again draw my attention to the list of expenditure of the accused, as considered by the investigating agency, in Sl.No.25, they have considered an amount of Rs.90,057/- as the expenses of the accused towards the credit card loan repayment along with the interest. The accused, during the course of check period, has repaid some amount towards the repayment of the loan borrowed by him from Standard Chartered Bank. The Investigating Officer has considered only the amount repaid by the accused with interest as his expenses and not considered the loan amount as his income. It is not just and proper on the part of the investigating agency to consider only the repayment of loan with interest as expenses without considering the loan amount as income of the accused. Therefore, the loan amount of Rs.1,50,000/- and Rs.70,000/- has to be added as income of the accused, as the loan was borrowed during the check period and portion of repayment of the loan during the check period 70 Spl. C.C. No.294/2010 was considered by the investigating agency as the expenses of the accused.
82. According to the accused, professional income of his wife to the tune of Rs.2,99,761/- was not considered as the income by the investigating agency though his wife has declared the same in her income tax returns filed during the check period. If I draw my attention to the income considered by the Investigating Officer in Sl.No.2 the salary drawn by the wife of accused was shown as the income of accused to the tune of Rs.4,49,752/- and this income of his wife was admitted by the accused. The page No. 43 of Ex.P.13 charge sheet goes to show that wife of the accused was working in Converges India Private Limited during the year 2004 to 2007. The investigating agency has secured a letter from the said company regarding actual salary paid to the wife of the accused. On the basis of the said letter and form No.16, investigating agency has considered the salary of the wife of accused as Rs.4,49,752/-. This figure was not at all disputed by the accused. Rather, it was admitted by the accused. However, according to the accused, salary income considered by the investigating agency of his wife is for the period from 2004 to 2007. But, his wife has practiced as an advocate at Bangalore City and earned Rs.2,99,761/- during the year 2001 to 2004 before joining to 71 Spl. C.C. No.294/2010 M/s Convergent India Private Limited and declared the same in her income tax returns and same was not considered by the investigating agency, though they have secured her income tax returns.
83. The admitted and undisputed facts prove that the wife of the accused was working in M/s. Convergent India Private Limited during the year 2002 to 2007 and earned the salary of Rs.4,49,752/- and letter received from the said firm to the Investigating Officer along with pay slip and form No.16 were produced along with charge sheet in page 25 of Vol.No.6 of the charge sheet. The Investigating Officer has also secured the income tax returns of the wife of the accused from the Income Tax Department and produced the same in Vol.No.6 page 24 to 68. But, those documents were not got marked by the prosecution during the course of their evidence. But, one thing is certain that the income considered by the investigating agency relating to the wife of the accused is for the year 2004 to 2007 only. The income earned by the wife of the accused till the year 2004 was not at all considered by the investigating agency.
84. The accused claims that his wife is a law graduate and she obtained the law degree during the year 2000 and enrolled as an advocate in Karnataka State Bar Council and started practicing at 72 Spl. C.C. No.294/2010 Bangalore City. Though no documents were marked by the accused, during the course of his arguments, learned counsel for the accused produced the copy of law decree certificate relating to his wife and also enrollment certificate, which shows that wife of the accused obtained the law degree during the year 2000 and enrolled as an advocate on 12-03-2001. Even if this court ignores those documents on the ground that they were not got marked, still the income tax returns secured by the investigating agency and produced along with the charge sheet, goes to show that during the year 2001 to 2004 wife of the accused has filed the income tax returns showing her professional income. These income tax returns produced along with the charge sheet were marked by the accused as Ex.D.31 to 45 during the course of his evidence. It is evident from Ex.D.39 that she has declared her income as Rs.1,20,000/- during the assessment year 2003-04 and Rs.1,26,000/- during the year 2004-05 and Rs.85,000/- during the year 2002-03. All those income declared by the wife of the accused in her income tax returns, which she got from her profession, was not at all considered by the investigating agency. As I said earlier, the salary of the wife of accused considered as Rs.4,49,752/- by the investigating agency is the salary, which she earned from 08-12-2004 to 31-11- 73 Spl. C.C. No.294/2010 2007. The income tax returns filed by her from the year 2001 to 2004 were not considered by the Investigating officer.
85. As I said earlier so far as the declared income is concerned, it has to be considered by this court, even if the accused fails to show the source. In this particular case the wife of the accused is the law graduate and she was practicing as an advocate and declared her income in the income tax returns. Hence, a sum of Rs.2,99,761/- has to be included as the income of the accused. The Investigating Officer has committed an error in not considering the same, even though the said income was declared in the income tax returns.
86. From all these discussions made by me, accused has succeeded in proving before this court that some of the income, which he got through lawful source, during the check period, was not considered by the investigating agency. Therefore, it has to be considered by this court and added to his income. The admitted income of the accused as per the charge sheet is Rs.63,34,604/-. For the said amount, following income has to be added and included, as the accused succeeded in proving that he has acquired those amounts through legal source during the check period and declared in his assets 74 Spl. C.C. No.294/2010 and liabilities statement, annual report and income tax returns. The incomes, which are to be added and their sources are as follows:
Sl.No. Source of income Amount
01 Difference of amount towards Rs.4,20,630/-
share received by the accused as
an agricultural income from Hindu
undivided family property.
02 Difference of amount in the rental Rs.46,502/-
income of the accused.
03 Amount received by the accused as Rs.1,50,000/-
GPF withdrawal during the check
period
04 Loan amount from GPF Rs.1,76,000/-
05 KGID loan amount Rs.21,290/-
06 Interest free loan borrowed by the Rs.5,00,000/-
accused from his brother-in-law
Shylesh as per the permission
given by the Police Department
07 Personal loan raised by the Rs.1,50,000/-
accused from Standard Chartered
Bank
08 Credit card loan raised by the Rs.70,000/-
accused from Standard Chartered
Bank
09 Income generated by the accused Rs.29,440/-
from sale of gold ornaments
10 Car purchased loan raised by the Rs.2,32,000/-
wife of the accused from ICICI
Bank
11 Professional income of the wife of Rs.2,99,761/-
accused
12 NSC certificate maturity amount Rs.29,682/-
received by the accused
TOTAL: Rs.21,25,305/-
75 Spl. C.C. No.294/2010
87. If Rs.21,25,305/- is added to the admitted and undisputed income of the accused i.e of Rs.63,34,604/- total income of the accused during the check period would be Rs.84,59,909/-. Hence, this court has to consider the income of the accused during the check period as Rs.84,59,909/-.
88. Now let me discuss the dispute regarding assets of the accused. According to the prosecution, accused owned assets worth Rs.55,86,723/-. Where as, accused claims that his assets were worth Rs.41,89,264/-. So there is dispute or differences of opinion between the prosecution and the accused in respect of the assets worth Rs.13,97,459/-. Let me describe the list of assets considered by the investigating agency, as described in the page 26 and 27 of the Ex.P.13 charge sheet.
ASSETS OF THE ACCUSED CONSIDERED BY THE
INVESTIGATING AGENCY:
Sl.No. Source of income Amount
01 Value of the house at HSR Layout Rs.34,38,381/-
including the cost of construction
02 Cost of site No.2625 at Bellary Rs.23,000/-
03 Cost of site No.2709 at Bellary Rs.25,000/-
04 Cost of site situated at Rs.2,10,000/-
Jakkasandra, Bangalore.
76 Spl. C.C. No.294/2010
05 Cost of site No.590/A at HSR Rs.5,90,765/-
Layout, Bangalore.
06 Cost of marginal land site 590/A at Rs.1,20,960/-
HSR Layout, Bangalore.
07 The balance in SB account at City Rs.12,630/-
Bank, Bangalore.
08 The balance in SB account at SBI, Rs.450/-
Bangalore.
09 The balance in SB account at SBM, Rs.2,111/-
Bangalore.
10 The balance in SB account at Union Rs.3,674/-
Bank, Bangalore.
11 The balance in SB account at Rs.6,518-
Canara Bank, Bangalore.
12 The balance in SB account at Rs.1,06,225/-
Canara Bank, Bangalore.
13 Deposit made to electricity board Rs.69,970/-
14 Deposit made to got telephone Rs.2,780/-
connection
15 Deposit made to got gas Rs.1,900/-
connection
16 Value of Kinetic Honda Scooter Rs.36,000/-
17 Value of Maruthi car Rs.60,000/-
18 Value of TATA India car Rs.2,32,000/-
19 Cash found during the raid Rs.2,335/-
20 Value of gold jewelleries weighing Rs.2,99,800/-
392 Grams
21 Value of silver articles weighing Rs.18,100/-
1058 Grams
22 Value of house hold articles Rs.2,89,640/-
23 Value of mobile phones Rs.11,500/-
24 LIC policy premium amount Rs.12,984/-
77 Spl. C.C. No.294/2010
25 Premium paid to ICIC Prudential Rs.10,000/-
Insurance
TOTAL: Rs.55,86,723/-
89. Out of the above list containing 25 items, accused has not disputed about item No. 2 to 12, 14 to 17, 19 and 23 to 25. The accused has disputed the value of the assets in respect of item No.1, 13, 18 and 20 to 22. The accused has disputed value of those items on these grounds.
A). Cost of construction of house was only Rs.27,75,000/- out of which he spent Rs.18,00,000/- and balance amount of Rs.9,75,000/- was spend by his tenant, as per the agreement between them, which is yet to be repaid.
B). Deposit made to electricity board is only Rs.19,910/- and investigating agency has wrongly considered it as Rs.Rs.69,970/-.
C). TATA Indica car worth Rs.2,32,000/- was already sold before the search. Hence, its value cannot be considered as his assets.
D). Value of gold ornaments worth Rs.2,99,800/- cannot be considered as his assets, as it was gifted by the in-laws at the time of marriage.
E). Value of the silver articles worth Rs.18,00,100/- cannot be considered as his assets, as it was got as a gift at the time of marriage.
78 Spl. C.C. No.294/2010
F). Value of house hold articles is Rs.1,55,522/- and not Rs.2,89,640/-, as contended by the prosecution.
90. Thereby the accused tried to impress upon this court that actual value of the assets owned by him is only Rs.41,89,264/- and not Rs.55,86,723/- as contended by the prosecution.
91. So far as the assets of the accused are concerned, the discussion and determination is required in respect of the above referred six disputed items. So far as the other items are concerned, I said earlier, those assets and its value was not at all disputed and denied by the accused. Rather, in the list annexed along with the written arguments, accused has admitted those assets and its value. Apart from this admission, investigating agency has independently proved those assets and its value by producing the documents along with the charge sheet. Even those documents were also not disputed or denied by the accused. Therefore, no discussion is required in respect of the admitted assets of the accused, which are at Sl.No. 2 to 12, 14 to 17, 19 and 23 to 25. So the discussion is required only in respect of six items of the disputed assets.
92. Among them let me first consider the dispute relating to the value of the house and cost of construction relating to the house 79 Spl. C.C. No.294/2010 constructed by the accused in site No.590/A, HSR Layout, Bangalore. According to the prosecution, value of the said house including the cost of construction is Rs.34,38,381/-. To prove the same, prosecution relies upon the estimation report given by the Assistant Engineer, Technical Wing of Karnataka Lokayukta and statement given by the accused himself, while borrowing the loan, to determine the cost of construction of that house. On the other hand, accused claims that cost of construction of the house is Rs.27,75,000/-, out of which, he borne Rs.18-Lakhs and remaining amount of Rs.9,75,000/- was borne by his tenant M/s. Sapphire Infrastructure Development Private Limited, Bengaluru, as per the agreement between them.
93. Now the initial burden is upon the prosecution to show that the cost of construction of house is Rs.34,38,381/-. If I draw my attention to the charge sheet, in page 16, investigating agency contended that accused has borrowed the loan of Rs.15-lakhs from Canara Bank by showing the cost of construction of house as Rs.27,34,681/-. The accused has borrowed additional loan of Rs. Five- lakhs from Canara Bank by showing the additional cost of construction of house as Rs.7,03,700/-. On the basis of the figures given by the accused to Canara Bank for borrowing the loan, now the investigating 80 Spl. C.C. No.294/2010 agency contended that the cost of construction of that house as Rs.34,38,381/- (Rs.27,34,681/- + Rs.7,03,700/-).
94. Apart from the figures given by the accused to borrow the loan, prosecution also relied upon the valuation report given by the Assistant Engineer, Technical Wing of Karnataka Lokayukta, Bangalore, to prove the actual cost of construction of house. One Ramesh, who is the Assistant Engineer in the Technical Wing of Karnataka Lokayukta, Bangalore, has given the report as per Ex.P.6. As per his report, cost of construction of that house, excluding the cost of sites and movables in the house, was Rs.32,25,000/-.
95. So as to independently prove the same, prosecution examined said Ramesh as PW.4 and he deposed that, while he was working as Assistant Engineer, Technical Wing of Karnataka Lokayukta, Bangalore, he was entrusted with the work of inspecting the building of this accused and submit the report regarding valuation. PW.4 further deposed that he has inspected the building on 03-10- 2008 and 04-10-2008. PW.4 further deposed that the value of the building, as per the schedule rates, which were prevailing at the time of construction, was determined him as Rs.32,25,000/- and accordingly he submitted report as per Ex.P.6. Ex.P.6 report shows 81 Spl. C.C. No.294/2010 that PW.4 has inspected the building constructed by this accused at HSR Layout. That building consists of ground floor, first floor and part of second floor. On the basis of the materials used for the construction of that building and also nature of wood, which was used for doors and windows, materials used for making the wardrobes and flooring of tiles, PW.4 has assessed its value as Rs.32,35,000/-. During the course cross-examination of PW.4, accused disputed his valuation on the ground that 10% of payment to the contractor cannot be considered and PW.4 has not scraped the surface of the wall and the beam and not enquired the quality of the bricks and other materials. Even though all those questions were asked to PW.4, there are no grounds to disbelieve the oral testimony of the PW.4 and his report as per Ex.P.6 to say that the valuation made by him is erroneous. Absolutely there are no reasons to say that the valuation arrived by PW.4 regarding cost of construction is unscientific or irrational.
96. Even though there is a report as per Ex.P.6, which shows the cost of construction of house as Rs.32,25,000/- prosecuting agency, rather than considering the said report, has relied upon the statement given by the accused himself, while borrowing the loan and asserted that the cost of construction of house was Rs.34,38,381/-. As I said 82 Spl. C.C. No.294/2010 earlier, accused, for construction of the house, twice borrowed a loan from Canara Bank to the tune of Rs.15 Lakhs and Rs.5 lakhs respectively. While borrowing those two loans, accused has shown the cost of construction of the house as Rs.27,34,681/- and Rs.7,03,700/- respectively. On the basis of which the prosecution claimed the total cost of construction of house as Rs.34,38,381/-. Now I have to consider as to whether the prosecution is justified in considering the said figure as the cost of construction of house.
97. The accused has admitted about he borrowing the loan twice from Canara Bank for construction of house. Both the loan amount of Rs.15 lakhs and Rs.5 lakhs were included in the list of income of the accused by the investigating agency. The accused has admitted the same. Thereby the accused has borrowed the loan of Rs.20 Lakhs i.e., (Rs.15,00,000/-+Rs.5,00,000/-) for construction of house. When the accused has borrowed the loan of Rs.20 Lakhs for construction of house, his say that he spent Rs.18,00,000/- only for the construction of house cannot be accepted by this court.
98. It is pertinent to note here that for construction of house, accused has obtained the permission from his department and same is produced along with the charge sheet and subsequently, it was got 83 Spl. C.C. No.294/2010 marked by the accused as per Ex.D.25. Since the accused has got marked the same as his document, he cannot dispute the same. I have already referred Ex.D.25 to hold that accused has borrowed the loan of Rs.5 lakhs from his brother-in-law for construction of the house. When the accused has relied upon the document as per Ex.D.25 to prove that he has borrowed the loan of Rs.5 lakhs from his brother-in-law, he cannot dispute the other contents of that document.
99. As per Ex.D.25 permission was given to this accused to construct the house at the cost of Rs.25,00,000/-. To bear the expenses of Rs.25,00,000/- accused was permitted to borrow the loan of Rs.15,00,000/- from Canara Bank, Rs.3,00,000/- from the sale proceeds of site at Bellary, Rs.5,00,000/- as a loan from his brother- in-law and Rs.2,00,000/- from the savings of the accused and his wife. So as per the permission accorded to the accused, he was permitted to spent Rs.25,00,000/- for the construction of the house. Under such circumstances, contention of the accused that he spent Rs.18,00,000/- only for the construction of the house cannot be accepted by this court.
100. It is pertinent to note here that all those Rs.25,00,000/- were used by the accused by borrowing loan of Rs.15,00,000/- from 84 Spl. C.C. No.294/2010 Canara bank, by using the sale proceeds of Rs.3,00,000/-, by selling the site at Bellary and Rs.5,00,000/- by receiving hand loan from his brother-in-law and Rs.2,00,000/- as his savings. When that amount of Rs.25,00,000/- was not sufficient for the construction of house, he availed the additional loan of Rs.5,00,000/- from Canara Bank, though it was without any permission. This would clearly goes to show that the accused spent more than Rs.32,00,000/- for the construction of house. If he has spent Rs.18,00,000/- only for the construction of the house, there was no need for him to borrow the additional loan of Rs.5,00,000/- by showing the additional cost of construction as Rs.7,03,700/-. More over the accused is estopped from contending the actual cost of construction of the house as Rs.18,00,000/- when he has borrowed the loan of Rs.20,00,000/-(Rs.15,00,000/- +Rs.5,00,000/-) from Canara Bank by showing the cost of construction of the house as Rs.34,38,381/- (Rs.27,34,681/- and Rs.7,03,700/-).
101. By producing the above referred evidences, prosecution has discharged the initial burden placed upon them to prove that the cost of construction of the house was Rs.34,38,381/-. Now the onus shifts upon the accused to prove and substantiate his version. Even though the accused claimed that total construction cost of house is 85 Spl. C.C. No.294/2010 Rs.27,75,000/-, absolutely no evidences have been let-in by the accused to prove the same. In fact, accused is the best person to produce the documents relating to the actual cost incurred for construction of his house, because it is he, who has constructed the house and paid the money. Merely disputing the cost of construction shown by the prosecution and saying that it was only Rs.27,75,000/- cannot be accepted by this court, when the prosecution has produced the evidence to show that the cost of construction was Rs.34,38,381/-. In fact there are several circumstances before this court, which shows that the cost of construction of house cannot be Rs.27,75,000/- as claimed by the accused. As I said earlier, while obtaining the permission from his department, accused has shown cost of construction of house as Rs.25,00,000/-. Subsequently, the accused has borrowed additional loan of Rs.5 lakhs from Canara Bank by saying that he has incurred additional expenses of Rs.7,03,700/- which indicate that the cost of the construction of house was more than Rs.32,00,000/-. More over the accused himself has borrowed loan of Rs.20,00,000/- (Rs.15,00,000+5,00,000/-) from Canara Bank and Rs.5,00,000/- from his brother-in-law for construction of house. The accused has also sold one of his sites and got sale proceeds of Rs.3,00,000/- and used the same for construction of house. The 86 Spl. C.C. No.294/2010 accused also said that he used his and his wife's savings of Rs.2,00,000/- for construction of said house. The total of these amounts would be Rs.30,00,000/-. More over the accused himself claims that his tenant has incurred Rs.9,75,000/- for construction of house, which he has yet to repay. Whether this claim of the accused can be accepted or not would be considered by me at later stage. But all these contention of the accused itself goes to show that the cost of construction of house is more than Rs.34,00,000/-. Under all these circumstances, I am unable to accept the contention of the accused that the cost of construction of his house is only Rs.27,75,000/-, out of which he paid Rs.18,00,000/-. On the other hand, I have to accept the version of the prosecution to hold that cost of construction of house is Rs.34,38,381/- as alleged in the charge sheet.
102. The next important question, which has to be considered by this court, is regarding tenant of the accused completing construction and spending Rs.9,75,000/-. The accused contended that at the time of he letting out the premises to M/s. Sapphire Infrastructure Development Private Limited, Bengaluru, construction was not completed. Therefore, it is his tenant, who completed the construction by spending Rs.9,75,000/-. The accused also contended that said amount was not yet repaid by him. Now I have to consider as 87 Spl. C.C. No.294/2010 to whether this theory put forward by the accused can be accepted by this court.
103. Of-course, the accused has examined the Managing Director of M/s. Sapphire Infrastructure Development Private Limited, Bengaluru, as DW.1 and also produced the rent agreement entered into between them as per Ex.D.6 and the letter issued by the said firm to the Investigating Officer as per Ex.D.5. Ex.D.5 letter coupled with the evidence of DW.1 shows that tenant has spent Rs.9,75,000/- to complete the unfinished work. There are several circumstances before this court, which indicate that this theory put forward by the accused is absolutely false and it is only to minimize the value of assets of the accused and also his expenditure. First of all, there is no reference in Ex.D.6 rent agreement to complete the unfinished work of the house by the tenant. There is also no reference in Ex.D.6 that the house was in incomplete condition and remaining work has to be completed by the tenant. If really there was any such agreement or under standing between the accused and his tenant, same would have been incorporated in the rent agreement itself. When there no reference in the rent agreement about the tenant to complete the un finished work, tenant the spending huge amount of Rs.9,75,000/- to complete the un 88 Spl. C.C. No.294/2010 finished work of the house appears to be improbable and it cannot be accepted.
104. It is pertinent to note here that at the time of letting out the premises the tenant paid a sum of Rs.5,00,000/- as an rent advance to accused. The accused has admitted the same and also wants the said amount to be included as his income. There is also reference in the rent agreement about payment of rent advance of Rs.5,00,000/-. If the construction of the house was to be completed by the tenant himself and he has to spend a sum of Rs.9,75,000/- for the same, tenant would not have paid the rent advance to the accused. Rather, amount spent for completion of the unfinished work by the tenant, would have been considered as rent advance. Normally when rent advance to the tune of Rs.5,00,000/- is received, it is the landlord who has to complete the unfinished work, if it was not completely finished, before the delivering the possession of the house to the tenant. Even after paying the rent advance of Rs.5,00,000/-, tenant spending Rs.9,75,000/- for construction of unfinished work appears to be improbable and unacceptable. If there was any such agreement or understanding between the accused and his tenant for completion of unfinished work by the tenant, the accused would not have received the rent advance from his tenant. Rather permitted the tenant to use 89 Spl. C.C. No.294/2010 the rent advance amount itself for completing the unfinished work. This is one of the strong circumstances, which come in the way of this court in accepting the version of the accused in this regard.
105. As per the Ex.D-6 rent agreement, house was leased out for 11 months on monthly rent of Rs.55,000/-. The tenancy commenced from February 2006 and it was ended by September 2007. So tenant has occupied the premises for the period of about 19 months. The total rent payable for the period of 19 months at the rate of Rs.55,000/- per month would be Rs.10,45,000/-. When the total rent paid by the tenant is Rs.10,45,000/-, one cannot accept tenant spending Rs.9,75,000/- for completing the unfinished work, apart from paying the rent advance of Rs.5,00,000/-.
106. As per the terms of the rent agreement, which is marked as per Ex.D.6, tenant undertaken not to make any material alteration to the structures of the schedule premises. It was also agreed between the parties that lessee shall carry out only additional and alteration work at his own cost, for which lessee can not claim any consideration. Again these two conditions in the Ex.D.6 rent agreement would come in the way of this court in accepting the version of the accused about his tenant completing the unfinished work and spending Rs.9,75,000/- 90 Spl. C.C. No.294/2010 When there are those two conditions in the rent agreement, one cannot accept the tenant spending Rs.9,75,000/- for completing the unfinished work of the said house and accused agreeing to repay the same subsequently.
107. When the prosecution claimed that the total cost of construction of that house was Rs.34,38,381/-, accused disputed the same and contended that it is only Rs.27,75,000/-. The accused contended that out of Rs.27,75,000/-, he spent Rs.18,00,000/- and his tenant spent Rs.9,75,000/-. The accused spending Rs.18,00,000/- only for the construction of the said house cannot be accepted, because while obtaining permission from his department, accused contended that he will spend Rs.25,00,000/- for the construction of that house. In additional to that, subsequently, the accused by contending that he requires another Rs.7,00,000/-, borrowed additional loan of Rs.5,00,000/- from Canara Bank. When all those statements were given by the accused himself to get the loan, one cannot accept his tenant spending Rs.9,75,000/- to complete the unfinished work of the said house. The total loan borrowed by the accused for the construction of house is Rs.20,00,000/- from Canara Bank Rs.5,00,000/- from his brother-in-law, Rs.3,00,000/- from the sale of his site and Rs.2,00,000/- from his savings and that of his wife. 91 Spl. C.C. No.294/2010 When the accused himself has said that he has spent all those amounts or required all those amounts for the construction of house, his say that he spent only Rs.18,00,000/- and his tenant spent Rs.9,75,000/- for construction of the house cannot be accepted by this court.
108. Even for the sake arguments, it is assumed that, there is any such agreement between the parties permitting the tenant to complete the unfinished work, normally cost of construction would be deducted from the monthly rent payable by the tenant. There are many instances, where if the tenant spent any amount for renovation of leased out building, amount spent for the same would be deducted from monthly rent. In this particular case, no such amount was deducted from the monthly rent paid by the tenant to this accused. Rather till the end of lease period tenant paid the full monthly rent of Rs.55,000/- regularly. This is another circumstance, which come in the way of this court in accepting the version of the accused. If the said amount is not paid by way of deduction in the monthly rent, then at- least the said amount would have been repaid by the accused at the time of tenant vacating the premises. Even at the time of tenant vacating the premises, said amount was not repaid by the accused. There is also no evidence to show the accused repaying the amount 92 Spl. C.C. No.294/2010 subsequent to the lease period and in all these 9 years. If the accused has repaid the amount of Rs.9,75,000/- to his tenant, there would have been some documents with the accused. Non production any documents gives an indication that accused has not repaid the amount to his tenant. Non payment of the amount to the tenant by this accused also gives an indication that his tenant has not spent any amount for completion of construction of the said house.
109. It is relevant to note here that tenant of the accused is not a lay man or common man, to use that much of amount to complete the constriction and keep quite without taking any action to recover the same. The tenant of the accused is a private limited company. How a private limited company can keep quite without initiating any action for recovering a sum of Rs.9,75,000/- from the accused, if it has spent for completing the unfinished work of house, which was leased out to it. Hence, I am unable to accept the contention of the accused. This contention of the accused is nothing but false and it has been taken only to expand the income figure and to minimize the value of the assets of the accused or the expenses incurred by him. The oral evidence of DW.1 and 2 and Ex.D.5 letter issued by the tenant company do not inspire the confidence to accept this theory of the accused. The investigating agency has rightly considered the cost of 93 Spl. C.C. No.294/2010 construction of house as Rs.34,38,381/- and shown as value of his assets and same has to be accepted by this court.
110. The accused has disputed the amount of Rs.69,970/- shown by the investigating agency as the deposit made to Electricity Board under the head assets. According to the accused, amount deposited by him to the Electricity Board is only Rs.19,910/- and Investigating Officer has committed arithmetical mistake in calculating the total amount as Rs.69,970/-. If I draw my attention to the Ex.P.13 charge sheet, in page 20 there is reference about accused depositing the amount of Rs.69,970/- to the Electricity Board for obtaining the electricity connection to his house. The documents in this regard have been produced in the volume 4 page 20 and 21. Again accused has got marked the letter issued by the Electricity Board as per Ex.D.47. Ex.D.47 letter is accompanied by the ledger extract showing the electricity consumption and payment of electric bills relating to those electricity connections. As per Ex.D.47 letter, there were four electric meter connection obtained by this accused. For obtaining for those four electricity meter, amount deposed by the accused is Rs.9,920/-, Rs.3,330/-, Rs.3,330/- and Rs.3,330/- respectively. If those amounts are totaled, it would come to Rs.19,910/-. Even though the prosecution contended that the amount deposited before the Electricity 94 Spl. C.C. No.294/2010 Board is Rs.69,970/-, absolutely there is no basis for the same. Therefore, regarding electricity deposit amount of Rs.19,910/- has to be considered and not Rs.69,970/- as contended by the investigating agency.
111. Another figure, which was disputed by the accused regarding his assets is the value of TATA Indica car. The prosecution has shown the value of the car as Rs.2,32,000/-. The accused contended that he has already sold the vehicle much before raid. Therefore its value cannot be considered as his assets. There is no dispute regarding the accused purchasing the said car in the name of his wife. For purchasing the said car, a loan of Rs.2,32,000/- was borrowed from ICICI Bank. Even though the said amount was not considered as the income of accused by the investigating agency, this court has rejected the claim of the prosecution and accepted the claim of the accused to consider Rs.2,32,000/- as the income of the accused. It is from the said amount borrowed as loan from ICICI Bank, car was purchased in the name of the wife of accused. When the loan borrowed for purchase of car is considered as the income of the accused, value of the car has to be shown as assets of the accused. 95 Spl. C.C. No.294/2010
112. Even though the accused contended that he has sold the vehicle much before the raid, he failed to produce any document to prove the same. If the accused has sold the said vehicle before the raid, he would have named the purchaser of the car and also disclosed amount for which it was sold. The investigating agency has obtained the 'B' extract of the said vehicle from RTO, Bangalore-East and produced the same along with the charge sheet. The accused has got marked the said 'B' extract as per Ex.D.48. Said 'B' extract was obtained on 27-11-2009, which is about two years after the raid and after the check period. The 'B" extract shows the name of the wife of the accused Smt. Sandhya as its owner. If the accused or his wife has sold the said vehicle much before the raid, name of the purchaser would have been shown as the owner of the vehicle in its 'B' extract. If the said vehicle was sold during the check period name of the wife of the accused would not have continued as its owner, even two years after the check period.
113. Even though the accused has produced some documents during the course of his evidence, he has not produced RC or 'B' extract of the said vehicle standing in the name of the purchaser. If the accused has sold the said vehicle before the raid, ownership of the said vehicle would have been changed in the name of the purchaser. 96 Spl. C.C. No.294/2010 The accused failing to name the purchaser and also failing to say the actual amount for which it was sold and failing to produce any such document to show that it was sold before the raid, indicate that he has not sold the said vehicle before raid and within check period. Only to minimize the value of his assets, now the accused has falsely claiming that the said vehicle was sold before the raid.
114. Even if the accused has sold the vehicle, he would have got the sale proceeds and would have used the sale proceeds to repay the loan. Therefore, at any stretch of imagination the said amount of Rs.2.32,000/- cannot be deducted from the list of assets. When the said amount shown as income and since it was purchased by the accused by borrowing the loan from ICICI Bank. Hence, I hold that the amount of Rs.2,32,000/- was rightly considered as the assets of the accused and I found no reasons to accept the contention of the accused in this regard.
115. The accused has disputed the value of gold ornaments shown by the investigating agency as his assets. According to the accused, those gold ornaments were gifted to him by his in-laws at the time of his marriage and he has declared the same in his annual property report of the year 1988-89. Hence, it cannot be considered as 97 Spl. C.C. No.294/2010 his assets. The accused also contended that out of gold ornaments found in his house at the time of search, 60-grams gold ornament belong to his mother-in-law and same cannot be considered as his assets.
116. In the list of assets at Sl.No. 20, investigating agency shown 392-grams gold jewellary worth Rs.2,99,800/- as the assets of the accused. All these gold ornaments were found and seized during the course of search conducted to the house of accused on 03-11- 2007. The investigating agency, in page 23 of Ex.P.13 charge sheet, has given explanation regarding the gold ornaments found in the house of the accused and its value as Rs.2,99,800/-. According to the Investigating Officer, at the time of search and raid at the house of accused, 250-grams gold ornaments were found at the almarah. The accused was wearing a ring weighing 6-grams and wife of accused was wearing ear-rings, chain, totally weighing 69-grams. Another gold chain weighing 61-grams was found in almarah and it was told at the time of raid that it belongs to mother-in-law of the accused. Total weight of the gold ornaments found in the house of the accused was 392-grams. On the basis of the opinion given by the appraiser by name Puttarajachar, its value was determined as Rs.2,99,800/- and accordingly, it was shown as the assets of the accused. 98 Spl. C.C. No.294/2010
117. The accused has not disputed conducting of search and raid to his house and Investigating Officer finding 392-grams of gold ornaments in his house. But, according to the accused, it cannot be considered as his assets, because he got the same as gift at the time of his marriage from his in laws and declared the same in his annual property report of the year 1988-89.
118. In this regard, accused has drawn the attention of this court to the annual reports filed by him, which were produced along with the charge sheet. The prosecution has not marked the same during the course of their evidence. It is the accused, who has got marked the annual property reports submitted by him as per Ex.P.29 to 57. Admittedly, marriage of the accused was performed during the year 1987-88. According to the accused, at the time of his marriage, in-laws have gifted some gold ornaments to him and to his wife and he has reported the same to his Department in the annual property reports of the year 1989. The accused has marked the annual reports of the year 1989 as per Ex.P.51. In page 3 of Ex.P.51 annual property report, he has reported that a colour TV, refrigerator, house hold furniture and 50-tolas of gold were gifted at the time of his marriage to his wife by her parents. So as per the annual property report submitted by the accused, long back during the year 1989, he 99 Spl. C.C. No.294/2010 reported that his wife got 50-tolas of gold at the time of his marriage. 50-tolas of gold is equivalent to 500-grams of gold.
119. As above referred earlier, while considering the question of income generated by the accused by sale of gold, he sold 10- tolas for purchase of site at Bellary and got Rs.29,440/- during the year 1990. I have already referred Ex.D.28 document in this regard, which shows that, for purchase of site measuring 40 X 64 at Bellary, this accused was permitted to sell 10-tolas of gold. So out of 50- tollas of gold which the accused got from his in-laws as gift at the time of marriage, he sold 10-tolas i.e. 100-grams gold during the year 1990 for purchase of sites. So remaining 40-tolas of gold was with the accused, which is equivalent to about 400-grams. Accordingly, gold ornaments found in the house of the accused at the time of search was 392- grams. Since these gold ornaments were got by the accused at the time of his marriage as a gift, it cannot be considered as assets of accused, so as to determine the alleged disproportionate assets. Only the assets, which the accused got by paying the amount from his income, can be considered as assets for determining the alleged disproportionate assets. Hence, Investigating Officer has committed an error in considering the value of the gold ornaments i.e., Rs.2,99,800/- as the assets of the accused. Hence, said amount has to 100 Spl. C.C. No.294/2010 be deducted from the value of the assets shown by the investigating agency.
120. Another contention urged by the accused is that, at the time of raid, silver ornaments were found in his house weighing 1-Kg. 58-grams and 50-grams sliver were found in the bank locker and its value of Rs.18,100/- was shown as the assets of the accused. According to accused, again he got those silver ornaments as gift at the time of his marriage. Therefore, it cannot be considered as his assets.
121. The investigating agency, in page 23 and 24 of Ex.P.13 charge sheet, has given explanation regarding silver ornaments found in the house of accused at the time of search and raid. As per Ex.P.1 mahazar and Ex.P.13 charge sheet, two pairs of silver leg-chain, one statue of Gajalakshmi, 4 silver glasses, 6 silver plates, silver Ganesh statue and one silver plate were found in the house of accused weighing 1-Kg 58-grams. When the bank locker of wife of the accused was searched, 50-grams of silver ornaments were found in the bank locker. As per the opinion of the appraiser, their value was considered as Rs.18,100/- and accordingly it was included in the list of assets of the accused. As I said earlier, regarding the raid and seizure, there is no dispute. There is also no dispute regarding the silver ornaments 101 Spl. C.C. No.294/2010 found in the house of the accused and also in the bank locker of wife of the accused. Even though the accused contended that he has received those silver ornaments at the time of his marriage, absolutely no documents or evidence has been let-in to prove the same. The accused has not reported in his annual property reports about he receiving the silver ornaments at the time of his marriage as gift. If the accused has received those silver ornaments at the time of his marriage, he would have reported the same in his annual property report, when he has reported the receipt of gold ornaments. When the accused has not reported about receipt of silver ornaments as a gift at the time of his marriage, his plea that he has received the same cannot be accepted by this court. Therefore, investigating agency has rightly considered the value of the silver articles found in the house of the accused and in the bank locker of wife of the accused as his assets and I found no wrong in it.
122. The next contention urged by the accused is regarding value of house hold articles found in the house of the accused at the time of raid. As I said earlier, on 03-11-2007 Lokayukta police have conducted the raid by obtaining the search warrant and articles found in the house of the accused were shown in the mahazar. The accused 102 Spl. C.C. No.294/2010 has not seriously disputed the articles found in his house. Only dispute is that, for some of the articles, excess rates were shown and some of the articles found in house were not belonging to him and they belong to his mother-in-law. The accused has also contended that since he was in official quarters, some of the articles belong to COD Police office quarters were also considered as his property and included in the mahazar. According to the accused, actual value of the house hold articles were Rs.1,55,522/- and the investigating agency has wrongly shown it as Rs.2,89,640/- by showing excess rates for the articles and by considering the articles belong to his mother-in-law and COD police.
123. As I said earlier, there is no dispute as such regarding Investigating Officer conducting the raid and drawing the mahazar. The mahazar is marked as per Ex.P.1. The prosecution, in order to prove the said mahazar, has examined one of the witnesses for the said mahazar as PW.1, who also deposed about search conducted in his presence and seizure of material objects from the house of the accused. If I draw my attention to page 24 of the Ex.P.13 charge sheet, according to investigating agency at the time of search and raid in the house of the accused, electrical and electronics articles worth Rs.88,450/- were found. The value of the furniture found in the house 103 Spl. C.C. No.294/2010 of the accused were assessed as Rs.26,400/-. The value of the sarees belong to the wife of accused were assessed as Rs.1,00,000/-. The daily wearing dresses of the accused, his wife and children were seized and its value was found to be Rs.69,250/-. The house hold articles and steel utensils were also found and their value was assessed as Rs.5,450/-. Accordingly, total value of the house hold articles found in the house of the accused was assessed as Rs.2,89,640/-. According to the Investigating Officer, its value was assessed as per the opinion given by the pancha witness.
124. Merely because the pancha witness said during the course of his evidence that he has not valued the house hold articles and its value was assessed by the Lokayuktha police, it cannot be a ground to say that value made by the investigating agency is erroneous and on the higher side. When the accused admits that all those articles were found in his house and alleges that the investigating agency has quoted excess rates for those articles, accused has to produce the evidence to show the actual rates of those house hold articles. Even though accused contended that the actual value of house hold articles found in his house were only Rs.1,55,522/-, absolutely there is no basis to accept the version of the accused in this regard. 104 Spl. C.C. No.294/2010
125. If I carefully peruse the mahazar and value assessed by the investigating agency for each of the articles, I found no reason to say that Investigating Officer has quoted excess rate for any of the articles. No evidence has been produced by the accused to show that for any of the articles excess rates have been shown than the actual rates. The rates assessed by the investigating agency for those articles were not found to be unscientific or unreasonable. Regarding the accused not owning some of the articles and it is being owned by his mother-in-law or belong to the COD Police; again no evidence has been let-in, except the oral say of the accused. When any articles were found in the house of the accused, a presumption, which can be drawn, is that those articles belong to him. Therefore, burden is upon the accused to displace that presumption and prove that it belongs to some others. In this particular case, no evidence has been let-in by the accused to show that some of the articles found in his house were belong to his mother-in-law or belong to COD Police. There is also evidence to show that the Investigating Officer has quoted excess rates for those articles. Considering all these aspects, I have to accept the version of the prosecution to hold that value of the articles found in the house of the accused as Rs.2,89,640/- and to consider the same as the assets of the accused.
105 Spl. C.C. No.294/2010
126. From all these discussions made by me regarding assets and value of the assets, contention of the accused can be accepted only in respect of the value of gold ornaments to an extent of Rs.2,99,800/- since the accused got the same by way gift and deposit made to the Electricity Board to an extent of Rs.50,060/-, as the investigating agency has considered the amount deposited before the Electricity Board as Rs.69,970/- though the actual amount deposited was only Rs.19,910/- as per Ex.D.47. Therefore, out of the value of the total assets shown as Rs.55,86,723/- an amount of Rs.2,99,800/- and Rs.50,060/- has to be deducted. Accordingly, if Rs.3,49,860/- is deducted from Rs.55,86,723/-, it is Rs.52,36,863/-. Therefore, value of the assets of the accused during the check period has to be considered as Rs.52,36,863/-.
127. Now I have to consider the expenditure of the accused during the check period. The Investigating Officer, in page 40 to 42 of Ex.P.13 charge sheet has listed 36 items under the head expenditure of the accused during the check period and its value. Those expenditures are as follows:
106 Spl. C.C. No.294/2010
EXPENDITURE OF THE ACCUSED CONSIDERED BY THE INVESTIGATING OFFICER DURING THE CHECK PERIOD:
Sl.No. Details of Expenditure Amount
01 Domestic expenditure Rs.7,55,065/-
02 Stamp and registration charges for Rs.4,698/-
purchase of site No.2709 at Bellary
03 Stamp and registration charges for Rs.5,318/-
purchase of site No.2625 at Bellary
04 Stamp and registration charges for Rs.30,550/-
purchase of site No.283 at
Jakkasandra, Bangalore
05 Stamp and registration charges for Rs.81,890/-
purchase of site No.590/A at HSR
Layout, Bangalore
06 Tax paid to the Municipal Rs,5,123/-
Corporation in respect of site
No.590/A
07 Telephone bill paid in respect of Rs.59,009/-
No.25577243
08 Gas consumption charges Rs.15,144/-
09 Plan approval charges and sanction Rs.5,655/-
charges
10 Electricity charges paid during the Rs.81,167/-
check period
11 Loan repaid to HDFC Bank with Rs.3,39,028/-
interest
12 Loan processing charges paid to Rs.3,000/-
HDFC Bank
13 Loan repaid with interest to Canara Rs.5,24,230/-
Bank
14 Solar loan repayment along with Rs.1,34,362/-
interest to Canara Bank
15 House construction loan repaid to Rs.64,144/-
Canara Bank with interest
16 Personal loan repayment to Canara Rs.59,512/-
Bank with interest
107 Spl. C.C. No.294/2010
17. Bank locker rental charges Rs.11,600/-
18. Amount repaid to ICICI Bank Rs.32,146/-
towards car loan with interest
19 Car purchase loan repayment to Rs.1,13,260/-
ICICI Bank with interest
20 Fuel lubricant service and tax Rs.36,155/-
applicable for Kinetic Honda two
wheeler
21 Charges levied for bouncing of Rs.225/-
cheques
22 Fuel lubricant service and tax Rs.57,764/-
applicable for four wheeler Maruthi
car
23 Educational expenses of the elder Rs.1,99,005/-
son of accused
24 Educational expenses of younger Rs.1,83,885/-
son of accused
25 Credit card loan repayment with Rs.90,057/-
interest
26 Fixed term deposit Rs.45,312/-
27 Amount for purchase of NSC Rs.15,000/-
28 House warming ceremony Rs.14,000/-
29 Charges paid to architect Rs.25,000/-
30 Fee paid to educational coaching Rs.96,526/-
classes
31 Amount paid to purchase of Rs.19,200/-
computer
32 With drawl made from savings Rs.1,50,000/-
bank account
33 Amount paid to Mudugal Rs.25,000/-
34 Premium paid to LIC Rs.5,029/-
35 Expenditure for maintenance of Rs.2,61,645/-
house at HSR Layout
108 Spl. C.C. No.294/2010
36 Amount paid to DD care for solar Rs.1,00,000/-
equipment
TOTAL: Rs.36,48,704/-
128. It appears that there is some arithmetical error in the charge sheet in showing the total value of the expenditure as Rs.35,52,965/-. In fact, the total value of the expenditure listed above would be Rs.36,48,704/- and not Rs.35,52,965/-. The accused, in the list of expenditures produced along with the written arguments, has admitted the total value of the expenditures as Rs.36,48,704/-. Therefore, I have to consider the total expenditures of the accused as alleged by the prosecution as Rs.36,48,704/-.
129. The accused has disputed some of the expenditures shown by the investigating agency. According to the accused, his actual expenditures during the check period is only Rs.27,71,739/- and there is differences of opinion between the accused and the investigating agency in respect of the expenditures is amounting to Rs.8,76,967/-.
130. During the course of evidence and in the list annexed to the written arguments, accused has disputed the following items of the expenditure. They are:
109 Spl. C.C. No.294/2010
(a) Domestic expenditures: According to the accused his domestic expenditures is only Rs.3,90,000/- and Investigating Officer has considered the same as Rs.7,55,065/- and thereby considered the excess amount of Rs.3,65,065/-
(b) Fuel lubricant service and tax charges in respect of the two wheeler: According to the accused, it is only Rs.16,800/- and the Investigating Officer has wrongly considered it as Rs.36,155/- and thereby considered the excess amount of Rs.19,355/-
(c) Fuel and lubricant service and tax charges in respect of the Maruthi car: According to the accused, it is only Rs.12,264/- and the prosecution has wrongly considered it as Rs.57,764/- and thereby considered the excess amount of Rs.45,500/-
(d) House warming ceremony: According to the accused the actual expenditures incurred for house warming ceremony is Rs.3,600/- and prosecution has wrongly considered it as Rs.14,000/-
and thereby excess amount of Rs.10,400/- is shown.
(e) Charges paid to architect: According to the accused the charges paid to the architect is the part of construction cost which was included in the construction cost of house and the investigating agency has wrongly considered an amount of Rs.25,000/- separately. 110 Spl. C.C. No.294/2010
(f) Withdrawal amount from Savings Bank: According to the accused it is the duplication of accounting procedural. Those amount was withdrawn for domestic expenditures and it was already considered under the head domestic expenditure. Hence, the prosecution committed error in considering Rs.1,50,000/- separately by showing as withdrawal made from Bank account.
(g) House maintenance expenditures: According to the accused, he has not spent amount of Rs.2,61,645/- for house maintenance and the investigating agency has wrongly considered the same.
131. Out of 36 items of the expenditures only above referred seven items were disputed by the accused and remaining 29 items were admitted by the accused as his expenditure. In view of the admission relating to the remaining 29 items, no more discussion is required since they were admitted by the accused. More over, prosecution has produced the documents and independently proved those 29 items of the expenditures incurred by the accused during the check period. Hence, the discussion regarding the expenditures is required only in respect of the above referred 7 items of the expenditures.
111 Spl. C.C. No.294/2010
132. Out of the 7 items of the disputed figures under the head expenditure, first one is the domestic expenditure. The prosecution shown the domestic expenditure of the accused as Rs.7,55,065/-.By disputing the said figure, accused contended that the actual domestic expenditure of his family during the check period is Rs.3,90,000/- only. Therefore, in respect of the remaining amount of Rs.3,55,065/- there is dispute between the prosecution and the accused relating to the domestic expenditure.
133. In page 28 of Ex.P.13 charge sheet, prosecution has given the explanation for showing the domestic expenditure of the accused and his family as Rs.7,55,065/-. As per the said explanation, the investigating agency has secured the statistical information from the Joint Director of the Statistics Department of Lokayukta. On the basis of which, domestic expenditure of the accused was considered as Rs.7,55,065/-. To prove and establish the same, prosecution examined one witness by name Jayadeva Prakash as PW.3 and he deposed that he was directed by Lokayukta police to assist them to prepare the invisible expenditure of the family of the accused. PW.3 further deposed that on the basis of his direction, Smt. R. Chithra who is the Assistant Statistical Officer, Karnataka Lokayukta, Bengaluru, has prepared the invisible expenditure report and he produced the same 112 Spl. C.C. No.294/2010 before Lokayukta police. PW.3 has identified the said report as per Ex.P.4 and covering letter as per Ex.P.5 showing the invisible expenditure of the accused and his family as Rs.7,55,065/-. PW.3 further deposed that Ex.P.4 report is based on the National Sample Survey and All India Consumer Price Index.
134. The accused tried to dispute the evidence of PW.3 on the ground that Ex.P.4 report was not signed by him. Therefore, his evidence cannot be accepted in respect of Ex.P.4 report. In-fact this objection was raised by the accused while marking Ex.P.4 report and same was over-ruled by my Predecessor in Office. Even though Ex.P.4 report was not signed by PW.3, it is his assistant, who has prepared the said report as per the instruction of PW.3. It is PW.3 who has sent the same to Lokayukta police by writing a letter as per Ex.P.5. Under such circumstances, this court cannot accept the objections of the accused regarding admissibility of the evidence of PW.3 to prove Ex.P.4 report.
135. Even though accused contended that his domestic expenses were only Rs.3,90,000/-, absolutely there is no basis to prove the same. According to the accused, as per the Apex Court Judgment only 33% of the income can be considered as expenditure. It is not 113 Spl. C.C. No.294/2010 universal rule to consider only 33% of the income as an expenditure. It may be guideline to consider the 33% of the income as the domestic expenditure, when there is no evidence to prove the actual expenditure The expenditure of the family always depends upon the number of persons in the family and the way of they leading the life and standard of living and cost of living. By considering all these aspects, Ex.P.4 report was submitted to say that the domestic expenditure of the family of the accused was Rs.7,55,065/.
136. It is pertinent to note here that the check period from 01- 01-1990 to 03-11-2007 consists of about 214 months. At the rate of Rs.7,55,065/- for the check period and for 214 months, per month domestic expenditure would be Rs.3,529/-. The family of the accused consists of accused, his wife and two sons. The accused himself said that his mother-in-law and brother-in-law were also residing in their house for considerable period. So their family consists of six members. Out of the check period for majority of the period accused was residing in Bangalore City with his family. A persons requires more than Rs.3,529/- per month to maintain the family and to meet the domestic expenditure, when the family consists of six members and when they reside in the city like Bangalore. Therefore, one cannot say that the 114 Spl. C.C. No.294/2010 domestic expenditure shown as Rs.7,55,065/- is unscientific, unreasonable or irrational. The accused may have got rice or other grocery items from his landed properties, since he owns some agricultural properties at Bellary District. Even if the accused has got those items free of cost from his own landed properties, still he would have required more than Rs.3,500/- per month for the domestic expenditure. Hence, in this case 33% of income of the accused cannot be considered towards the domestic expenditure when the family of the accused consists of six members and they were residing in HSR Layout, Bangalore. Therefore, Investigating Officer has rightly considered Ex.P.4 report to hold that the domestic expenditure of the accused as Rs.6,55,065/-. I found no reason to say that the said amount is on the higher side.
137. The next disputed item in the list of expenditure is the fuel lubricant service and tax applicable for Kinetic Honda two wheeler. The prosecution shown the fuel lubricant service charges and tax relating to the two wheeler as Rs.36,155/- whereas the accused claimed that as Rs.16,800/- and there is dispute between them in respect of Rs.19,355/-.
115 Spl. C.C. No.294/2010
138. Regarding this expenditure, explanation can be found in page 35 and 36 of Ex.P.13 charge sheet. As per the said explanation wife of the accused owned Kinetic Honda motor bike bearing Reg. No. KA-02-Y-5711 and same was found in the house of the accused at the time of search. The Investigating Officer has secured the report and 'B' extract from RTO, Rajajinagara, Bangalore, wherein this two wheeler was registered. As per the said report, value of the vehicle was found to be Rs.36,000/-. It was also found from the said report that a sum of Rs.4,500/- spent for the repairing of the said vehicle and Rs.29,000/- was spent for its fuel and Rs.2,625/- was paid towards the tax in respect of the said two wheeler. On the basis of the same, the investigating agency has considered the fuel lubricant, service, tax and the fuel charges of the vehicle as Rs.36,155/-.
139. Now it is relevant to consider the report submitted by the RTO, Rajajinagar, which is in page 2 and 3 of Vol. 4(D). As per the said document, RTO, Rajajinagara has reported that said vehicle is run to an extent of 14,758 kms, for which 369 liters of petrol is required by considering the mileage of the said vehicle as 40-k.m. per liter. Hence, fuel expenses of the vehicle is shown as Rs.14,758/-. The Investigating Officer has also reported that the life time tax of the 116 Spl. C.C. No.294/2010 vehicle as Rs.2,625/- and repair charges as Rs.4,500/-. Even the said report shows the fuel expenses as Rs.14,020/- in the charge sheet. The Investigating Officer has considered the fuel expenses as Rs.29,000/-.
140. Absolutely no explanation is forth coming from the investigating agency to consider the fuel expenses as Rs.29,000/- when the report relied upon by them shows the fuel expenses as Rs.14,020/-. It appears that there is some clerical and arithmetic in considering the fuel charges. As per report given by the RTO, Rajajinagara, fuel cost, service charges and tax relating to the said vehicle was Rs.14,020/-, Rs.4,500/- and Rs.2,625/-. There by total expenses would be Rs.21,145/- and it cannot be Rs.36,155/- as contended by the Investigating Officer. At the same time, it cannot be Rs.16,800/- as contended by the accused. Rather on the basis of the report of the RTO, fuel, service and tax relating to Kinetic Honda has to be considered as Rs.21,145/-. Accordingly the balance amount of Rs.15,010/- has to be deducted from the expenditure of the accused.
141. One more disputed item under the head expenditure is the fuel lubricant service tax and tax applicable to the four wheeler. The prosecution has considered a sum of Rs.57,764/- ,whereas according 117 Spl. C.C. No.294/2010 to the accused it is only Rs.12,264/- and thereby accused disputed the amount of Rs.45,500/- under the head expenditure. According to the accused, it is second hand car and tax was paid by first owner and it was not used much during the check period.
142. In page 36 of Ex.P.13 charge sheet the prosecution has given the explanation regarding the expenditure incurred for fuel, service and tax in respect of Maruthi car. According to the said explanation, said vehicle was standing in the name of one Virupaksha Channappa Shetty as per the 'B' extract. The accused admitted that he has purchased the said car. The report from the insurance company was secured, which shows that Rs.2764/- was paid towards the insurance of the said vehicle. On the basis of the report given by the RTO, Bagalakote, service charges of the said vehicle is Rs.19,000/- and Rs.36,000/- towards fuel charges. Including the amount towards insurance premium paid, total expenses towards the fuel, service and tax was considered as Rs.57,764/- by the investigating agency. Even though the accused contended that fuel, service and tax expenses relating to the said vehicle as Rs.12,264/-, he failed to produce any documents to prove the same. Though the accused said that it is the second hand car purchased by him, he failed to produce any documents to show when actually it was purchased. There is also no 118 Spl. C.C. No.294/2010 evidence to show how much the said vehicle was run at the time of accused purchasing the same and how much it was run after the accused purchased it and during the check period. Though the accused said that earlier owner has paid the tax, no documents were produced to prove the same. On the basis of the report given by RTO, Bagalakote, and say of the accused, investigating agency has considered the fuel, service tax and insurance premium of the vehicle as Rs.57,764/- I found no reason to disbelieve the same. Hence, this court has to accept it and hold that fuel lubricant and tax applicable to the Maruthi car as Rs.57,764/-.
143. Another disputed item under the head expenditure is the expenditure incurred for house warming ceremony. The prosecution has contended that accused incurred a sum of Rs.14,000/- for his house warming ceremony. On the other hand, accused contended that it is only Rs.3,600/- and Rs.10,400/- is the difference amount between them. According to the accused, only close relatives were invited and it was the function for ritual and customary formalities. Therefore, he incurred only Rs.3,600/- for the house warming ceremony. 119 Spl. C.C. No.294/2010
144. Regarding the accused incurring Rs.14,000/- for house warming ceremony, explanation can be found in page 38 of Ex.P.13 charge sheet. As per the said explanation, on the basis of the schedule-17 to 23 filed by the accused, investigating agency has considered the expenses for the house warming ceremony as Rs.14,000/-. Now it is relevant to consider the schedule-17 to 23 submitted by the accused before Investigating Officer, which is in page 1 to 18 in Vol-3. As per the details furnished in the schedule-18, in page 5 and 6, accused himself said that only 100 members have attended the house warming ceremony, including his close relatives, friends and well-wishers. According to the accused, buffet vegetarian food was arranged and one cook has come to prepare the food and he was paid with Rs.200/-. According to the accused, Rs.200/- was spent for flower decoration and cost of catering was Rs.2,000/- and a person came and he performed the pooja and other ritual and he was paid Rs.1,200/-. Thereby, accused contended that cost of house warming ceremony was Rs.3,600/-.
145. The house warming ceremony of the accused was held on 11-02-2005. Cost of the house as determined by this court runs to the tune of Rs.34,38,381/. One cannot believe or accept a Police Inspector constructing a house in Bangalore City at the cost of more than Rs.34- 120 Spl. C.C. No.294/2010 lakhs, spending Rs.3,600/- only for the housing warming ceremony. Even if only 100 persons have attended the house warming ceremony for their lunch and for conducting Homa and decoration, more than Rs.14,000/- is required. Therefore investigating agency has rightly consider the expenses for house warming ceremony as Rs.14,000/-. Where as to accept the version of the accused that he has spend Rs.3,600/- only, absolutely there is no evidence and no basis. The Investigating Officer considering the house warming ceremony expenses as Rs.14,000/- is neither unscientific nor unreasonable. Therefore, I found no substance in this contention of the accused.
146. The accused has disputed the amount of Rs.25,000/- shown by the investigating agency as the charges paid to architect under the head expenditure. The accused has disputed the same by holding that it is integral part of construction cost. Therefore, it cannot be considered separately.
147. In page 38 of the Ex.P.13 charge sheet, investigating agency has given the explanation regarding said expenditure. As per the investigating agency, an amount of Rs.25,000/- was paid to architect Mahadekar and Nandeesh through SB account of the accused at State Bank of Mysore. Accordingly, it was considered as expenses. 121 Spl. C.C. No.294/2010
148. It is true that regarding cost of construction of house separate amount was considered as Rs.34,38,381/- under the head assets. This amount was considered on the basis of the report submitted by PW.4 and also the loan borrowed by accused and statement given by the accused at the time of borrowing the loan. The amount paid to the architect was not at all included in the cost of the construction of house. It is only the amount, which was used for construction of the house, materials costs of the construction was assessed as per report of PW.4. Since separate amount was paid through Bank account, the investigating agency has rightly considered the same. Hence, I found no reason to say that it is included in the cost of construction.
149. Another disputed item under the head expenses is the withdrawal made from the savings bank account. The investigating agency has considered Rs.1,50,000/- as the expenses of the accused since he has withdrawn the same during September 2006 from his SB Account at Canara Bank. The accused contended that said amount was withdrawn for domestic expenditure. Therefore, it cannot be considered as expenditure, since it amounts to duplication of accounting. In page 39 of Ex.P.13 charge sheet, investigating agency has stated that on 01-09-2006 and 02-09-2006 accused withdrawn a 122 Spl. C.C. No.294/2010 sum of Rs.1,00,000/- and Rs.50,000/- respectively from his Canara Bank SB account No.29223. According to the investigating agency, since there is no information regarding the use of the said amount for any specific expenditure, it was considered separately under the head expenditure. The accused has not disputed the withdrawal of the said amount from his bank account. The Investigating Officer has secured the documents relating to the said withdrawal and produced the same in page 171 to 173 of Vol.No.6. It is evident from these documents that, accused by issuing self cheques, has withdrawn a sum of Rs.1,00,000/- and Rs.50,000/- respectively. Said amount may be withdrawn by the accused for any of his expenditures, which were already considered by the investigating agency. The Investigating Officer cannot consider the savings bank account withdrawal as the expenses of the accused, if it was not withdrawn for specific purpose or for meeting specific expenditure. All the expenses incurred by the accused like domestic expenditure, water charges, telephone charges, electricity charges, bank locker charges and vehicle maintenance charges were considered by the investigating agency, without there being any specific receipt for the same. For meeting those expenses the accused may have to withdraw the amount from his SB account. If this withdrawal is considered as expenses separately, it amounts to 123 Spl. C.C. No.294/2010 duplication of accounting procedure, because of the expenses incurred by the accused have been considered separately under the different heads. If the withdrawal is made for specific purpose and for meeting specific expenses, then the prosecution can shown the same. But, this withdrawal is not made for specific purpose. Therefore, it cannot be considered as expenses. The Investigating Officer committed an error in considering the withdrawal of amount made from SB account of the accused as his expenses. Hence, a sum of Rs.1,50,000/- has to be deducted from the expenses amount shown by the investigating agency.
150. Another disputed amount under the head expenditures is the house maintenance charges. The Investigating Officer has shown a sum of Rs.2,61,645/- as the house maintenance expenses. The accused contended that he has not incurred that expense. Therefore it cannot be shown as his expenses under the head expenditure.
151. In page 39 of the Ex.P.13 charge sheet, one can find explanation regarding showing a sum of Rs.2,61,645/- as the expenditure of the accused. As per the said explanation, house constructed in site No.590/A of HSR Layout was leased out to one Kupendra Reddy on a monthly rent of Rs.55,000/- and he has 124 Spl. C.C. No.294/2010 occupied the said premises from February 2006 to September 2007 and paid the rent of Rs.8,72,153. While filing the income tax returns the accused has shown 30% of the rent received by him as maintenance cost. Accordingly, a sum of Rs.2,61,645/- is shown as expenditure of the accused under the head maintenance cost. The Investigating Officer has produced the documents in this regard in page 157 to 168 of Vol.No.6. The accused admit that he has declared the 30% of the rent as maintenance cost in his income tax returns and accordingly got the tax benefit. Having got the tax benefit by declaring 30% of the rent as maintenance cost, now the accused, for the purpose of this case, can not say that he has not actually incurred the house maintenance cost. For the purpose of income, accused wants that all the income he declared in his income tax returns has to be considered by this court. If that is so, same rule would apply for the expenditure also. Since the accused himself has declared that he has incurred 30% of the rent received by him as maintenance costs, same has to be considered as his expenditures. Therefore, Investigating Officer was right in considering Rs.2,61,645/- as the expenditure of the accused towards the maintenance of the house and I found no wrong in this.
125 Spl. C.C. No.294/2010
152. So, out of the seven disputed items under the head expenditure, contention of the accused can be accepted in respect of the two items i.e. fuel, service and tax charges relating to Kinetic Honda and withdrawal made from the savings bank account. Therefore out of total expenses of Rs.36,48,704/-, excess amount of Rs.15,014/- shown in respect of the fuel, service and tax charges relating to Kinetic Honda and Rs.1,50,000/- shown as withdrawal from the SB account are to be deducted. If Rs.1,65,014/- (Rs.15,014/- + Rs.1,50,000/-) is deducted from Rs.36,48,704/-, actual expenses incurred by the accused during the check period would be Rs.34,83,690/-. So the expenditures of the accused during the check period as to be considered as Rs.34,83,690/-. In view of my findings on the assets, it is assessed as Rs.52,36,863/-. So the total cost of the assets and expenditures of the accused during the check period would be Rs.87,20,553/-.
153. In view of above discussion made by me, the findings of this court regarding the income, assets, expenditures and value of disproportionate assets is as follows:
a. Income of the accused during the check period
Rs.84,59,909/-.
126 Spl. C.C. No.294/2010
b. Assets of the accused during the check period
Rs.52,36,863/-.
c. Expenses of the accused Rs.34,83,690/-.
d. Total of the assets and expenditures Rs.87,20,553/-.
e. Value of Disproportionate assets found with the
accused is Rs.2,60,444/-.
154. The accused found in possession of the disproportionate assets worth Rs.2,60,444/-. Since he had the income of Rs. Rs.84,59,909/- during the check period, excess assets found with him would be 3.07% above his income.
155. Now the important question before this court is as to whether the accused can be convicted, when he found in possession of the disproportionate assets and properties to the extent of 3.07% above his income. As I said earlier at the out set, the Investigating Officer, for the purpose of determination of income, assets, expenditures and disproportionate assets, has considered the check period from 01-01-1990 to 03-11-2007, even though this accused joined the Police Department on 07-09-1981. The date of accused joining the service was not considered as the starting point of the check period. Rather, the period from 07-09-1981 to 31-12-1989 was 127 Spl. C.C. No.294/2010 left out by the investigating agency. Absolutely no explanation is forth coming from the Investigating Officer, either in the charge sheet or during the course of evidence for considering the check period from 01-01-1990 and for not considering the check period from 07-09-1981 on the date when the accused joined the service.
156. By not considering the check period from 01-01-1990 the investigating agency has considered the earnings, salary and income of the accused from 01-01-1990. The salary, earnings and income of the accused from all the sources from 07-09-1981 to 31-12-1989 was not at all considered by the investigating agency. During the period from 07-09-1981 to 31-12-1989 the accused had the income from his salary and he has also income from his Hindu undivided family. As I said earlier, accused Hindu undivided family was owning 18-Acres of landed property at Siriguppa Taluk, in which the accused was having 1/4th share. So his salary income and income from the agricultural property for the period of about nine years was not at all considered by the investigating agency.
157. While considering the assets of the accused all the assets owned by him during the check period were considered. The accused might have acquired some of those assets from his earnings or salary 128 Spl. C.C. No.294/2010 income before the check period from 07-09-1981 to 31-12-1989. Therefore, it is wrong on the part of the investigating agency not to consider the income and earnings of the accused before the check period. Thereby, I have to say that there is no fair determination of income of the accused. There is also no fair determination of alleged disproportionate assets. Since the disproportionate assets found in possession of the accused is only Rs.2,60,444/- which is 3.07% of his income, non consideration of his salary income and agricultural income for the period of nine years would play a major role. If those income for the period of nine years acquired by the accused from his salary and from agricultural income has been considered, there would not have been any disproportionate assets with the accused. According to me, this is one of the grounds for holding that the accused is not guilty of the criminal misconduct U/s 13(2)(d) of the Prevention of Corruption Act 1988.
158. It is pertinent to note here that in respect of the very same charges of he acquiring disproportionate assets and properties, a departmental enquiry was held against this accused. In the said departmental enquiry, this accused was exonerated by holding that his guilt of acquiring disproportionate assets was not proved. The accused has produced the orders passed in the said departmental enquiry as 129 Spl. C.C. No.294/2010 per Ex.D.49. It is evident from Ex.D.49 that, in respect of the very same charges, which is now against before this court that he has acquired assets and properties disproportionate to his known source of income, a departmental enquiry was held against the accused. The material witnesses were also examined in the said departmental enquiry. One among those witnesses is the Investigating Officer of this case. The findings given in the said departmental enquiry is that the guilt of the accused regarding he acquiring disproportionate assets were not proved.
159. It is the arguments of the accused before this court that when he has been exonerated in the departmental enquiry, in respect of the very same charges, he cannot be convicted in this case. In this regard, learned counsel for the accused has drawn the attention of this court to a decision of Hon'ble Supreme Court reported in 2011 AIR SCW 1479 (Radheshyam Kejriwal V.s State of West Bengal and Others). The three Judges Bench of Hon'ble Supreme Court in the above referred decision held that holding departmental enquiry and initiating the criminal proceedings are two separate and independent proceedings. Therefore, prosecution can be launched against the delinquent official, even before decision in adjudication proceedings. It was further held in the above decision that finding in the adjudication 130 Spl. C.C. No.294/2010 proceedings is not binding on the prosecution. However, if both proceedings are initiated on the same facts and exoneration of accused in adjudication proceedings is on merits, continuation of prosecution would be abuse of process of Court.
160. So, as per the principles laid down by the Hon'ble Supreme Court in the above proceedings, initiation of both the proceedings must be on the same facts, so as to consider the findings of department enquiry to the criminal case. In this particular case, initiation this criminal proceedings and departmental enquiry against the accused was on same facts and in respect of the same charges. The accused found not guilty in the disciplinary enquiry and accordingly, he was exonerated. In view of the above decision of the Hon'ble Supreme Court, accused has to be acquitted in this criminal case, on this score also.
161. In-fact, by relying upon the above decision of our Hon'ble Supreme Court, Hon'ble High Court of Karnataka, in an unreported decision in Criminal Revision Petition No.583-586-587/2012 has discharged the accused No.1 on the ground that the prosecution against him would not survive, when he has been exonerated in the department enquiry held against him. It is pertinent to note here that, 131 Spl. C.C. No.294/2010 compared to this criminal proceedings, degree of proof required to prove the guilt of the delinquent official in the departmental enquiry is much low. So far this case is concerned, it is beyond reasonable doubt, where as it is preponderance of probability in the departmental enquiry. In spite of the same, guilt of the accused in the departmental enquiry was not established. Hence, on this score also, accused deserves the acquittal in this case.
162. Apart from that, in view of my above findings, accused found to be in possession of the disproportionate assets and properties to the extent of 3.07% above his known source of income during the check period. When the disproportionate assets found to be in possession of the accused is only 3.07%, conviction of the accused is not desirable. This view of mine is based upon the three Judges Bench decision of Hon'ble Supreme Court in (Krishnananda Agnihothri Vs. State of Madhya Pradesh) reported in 1977(1) SCC 816. The Hon'ble Supreme Court, long back during the year 1977, held that when the excess property or assets found in possession of accused was comparatively small i.e. if it is less than 10% of the total income in that case, it would be right to hold that assets found in possession of the accused were not disproportionate to his known source of 132 Spl. C.C. No.294/2010 income, by raising presumption U/s 5(3) of the Prevention of Corruption Act 1947, which is correspondent to Sec. 13(1)(e) of the Prevention of Corruption Act 1988. The Hon'ble Supreme Court further observed in the said judgment that the said principle was evolved to extend the benefit of doubt to the accused is due to inflationary trend in the appreciation of value of assets. It was also held by the Hon'ble Supreme Court that the benefit thereof appears to be maximum and the reason being, if the percentage begins to raise in each case, it gets extended till it reaches the level of incredulity to give the benefit of doubt. It would, therefore, improper, indeed undesirable to extend the principle beyond 10% in calculating the disproportionate assets of a delinquent officer.
163. By relaying upon the ratio and principles laid down by the Hon'ble Supreme Court in the above decision, similar view was expressed in a subsequent decision reported in AIR 1996 SC 484 (B.C. Chaturvedi Vs. Union of India) wherein it was permitted to allow the disproportionate assets less than 10% of the total source of income as the margin to be allowed. So on that score also, this accused cannot be convicted in this case, since the disproportionate assets found in his possession is only 3.07%.
133 Spl. C.C. No.294/2010
164. As I said earlier, the income of the accused acquired by him before the check period was not considered by the investigating agency, though the accused has the salary income for the period of about nine years and agricultural income from 18 Acres of landed properties. More over, for some of the expenditures like domestic expenditure, cost of construction of house, value of house hold articles, only approximate figures were considered, since the actual figures were not available. Because of this reason and also because of the reason of there being differences between the person to person in leading the life and incurring the expenditures and also cost of the inflationary trend, the Hon'ble Supreme Court laid down the law allowing the margin of 10%.
165. Considering all these aspects, I hold that the guilt of the accused regarding criminal misconduct, so as to convict him for the offences punishable U/sec. 13(1)(e) R/w Sec.13(2) of the Prevention of Corruption Act 1988 is not proved. Therefore, he has to be acquitted. Accordingly, I answer the point No.1 in the Negative.
POINT No.2:
166. In view of my findings on the above points, accused deserves the order of acquittal. Accordingly, I proceed to pass the following order:
134 Spl. C.C. No.294/2010
ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C., accused is acquitted from the charges leveled against him for the offence punishable under Sec.13(1)(e)R/w Sec.13(2) of the Prevention of Corruption Act 1988.
The bail bond executed by the accused and that of his surety stands cancelled.
****** (Dictated to the judgment-writer, after transcription, corrected by me and then pronounced by me in the open court on this the 22nd day of June 2016) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) ()()()()() ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1: Madduraiah PW.2: D. Ramachandraiah PW.3: Jayadeva Prakash PW.4: G. Ramesh PW.5: S.M. Jaggadesh Prasad PW.6: K. Ravishankar PW.7: Ajai Kumar Singh 135 Spl. C.C. No.294/2010 LIST OF DOCUMENTS MARKED FOR PROSECUTION: Ex.P.1: Mahazar dt: 03/11/2007 Ex.P.1(a) to (l): Signatures of PW.1 Ex.P.2: Mahazar at Upparpet P.S. Ex.P.2(a) to 1(c): Signatures of PW.1 Ex.P.3: Mahazar dt: 05/11/2007 of SBI, Bangalore. Ex.P.3(a) & 3(b): Signatures of PW.2 Ex.P.3(c): Signature of PW.5 Ex.P.4: Family expenditure report. Ex.P.5: Covering letter of Ex.P.4 dt: 06/04/2010 Ex.P.5(a): Signature of PW.3 Ex.P.6: Valuation report dt: 27/01/2009 Ex.P.6(a): Signature of PW.4 (P-42 Vol.5) Ex.P.7: Source report dt: 31/10/2007 Ex.P.7(a): Signature of PW.5 Ex.P.8: Proceedings of Superintendent of Police. Ex.P.9: FIR in Cr.No.14/2007 Ex.P.9(a) & 9(b): Signatures of PW.5 Ex.P.10: Education expenditure report. Ex.P.11: Covering letter of Ex.P.10 Ex.P.12: Sanction Order Ex.P.12(a): Signature of PW.7 Ex.P.13: Copy of Final report in Cr.No.67/2008 (P-1 to 50)(Charge sheet book-internal pages) Ex.P.14: Letter dt: 07/11/2007 (Vol.I P-37) Ex.P.15: Statement of the accused (Vol.47-P-17) 136 Spl. C.C. No.294/2010 Ex.P.16: Letter of Sr. Sub-Registrar, Bommanahally Dt: 12/11/2007 (4B-P-1) Ex.P.17: Copy of Sale deed (Vol.4B-Page No.2 to 20) Ex.P.18: Form No.15 Encumbrance certificate Ex.P.19: Covering letter of BDA dt: 13/11/2007 (Vol.4-Page No.1 & 2) Ex.P.20: Copy of Sale deed enclosed to Ex.P.19 Ex.P.21: Letter of BDA dt: 14/11/2007 Ex.P.22: Copy of Khata Certificate (P-11 Vol.4) Ex.P.23: Letter of BDA Dt: 17/11/2007 Ex.P.24: Letter of BDA Dt: 12/13-01-2009 Ex.P.25: Plan Approval letter (P-14) Ex.P.26: Letter of BDA Dt: (P-15) Ex.P.27: Copy of Form of BDA Ex.P.28: Copy of letter approving plan (P-17)
Ex.P.29 to 57: Statements of Assets & Liabilities of accused (P- to P-46) Ex.P.58: Report of rental income (P-157, 158) Ex.P.59: Statement of Accounts from AG's (GPF) (P-168/A, 168/B-Vol-6) LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
-NIL-
LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW.1: A. Basavaraja
DW.2: S.B. Mallikarjuna
137 Spl. C.C. No.294/2010
LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1: Deposition of PW.1 dt: 16/02/2015
before Departmental enquiry
Ex.D.2: Deposition of PW.5 dt: 18/11/2015
before Departmental enquiry
Ex.D.3: Deposition of PW.7 dt: 20/05/2015
before Departmental enquiry
Ex.D.4: Deposition of PW.6 dt: 02/05/2015
before Departmental enquiry
Ex.D.5: A letter dt: 15/07/2009 (2 sheets)
P-157 @ Vol.6
Ex.D.6: Copy of Lease Agreement P-160
Ex.D.7: Attested copies of rent received statement
Ex.D.8: Attested copy of ledger extract
Ex.D.9: Letter dt: 04/01/2008 (P-8 @ Vol.6)
Ex.D.10 to 24: Salary extracts-DW.2(P.9 to 23 @ Vol.6) Ex.D.25: Copy of permission (P-25 @ Vol.3) Ex.D.26: Bank letter dt: 22/11/2007 (P-49 @ Vol.5) Ex.D.27: Credit card statement (P-58 @ Vol.5) Ex.D.28: Copy of permission dt: 05/09/1990 (P-25 @ Vol.3) Ex.D.29: Letter dt: 17/12/2009 (P-2 @ Vol.5) Ex.D.30: Loan Account Extract (P-3 @ Vol.5) Ex.D.31: Letter dt: 28/04/2009 (P-37 @ Vol.6) Ex.D.32 to 45: Income Tax Returns & Form No.16 (P-38 to 66 @ Vol.6) Ex.D.46: Letter issued by postal department (P-112 @ Vol.5) Ex.D.47: Letter issued by BESCOM Dt:25/09/2009 (P-20 @ Vol.4) 138 Spl. C.C. No.294/2010 Ex.D.48: 'B' extract of the vehicle (P-18 @ Vol.4(d)) Ex.D.49: Copy of order passed in D.E. (Report along with statement) Ex.D.50 to 55: Letters issued by I.T. Department with Income Tax Returns & Form No.16 (P-97-107 @ Vol.5) Ex.D.56 to 58: Letters by Union Bank & Account Extracts (P-145-147 @ Vol.6) Ex.D.59: Documents issued by the Tahasildar, which contain 62 pages (P-69 to 131 Vol.6) (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU.
(CCH-78) 139 Spl. C.C. No.294/2010 (Judgment pronounced in the open Court vide separate judgment) ORDER The accused found not guilty.
Acting under Sec.235(1) of Cr.P.C., accused is acquitted from the charges leveled against him for the offence punishable under Sec.13(1)(e)R/w Sec.13(2) of the Prevention of Corruption Act 1988. The bail bond executed by the accused and that of his surety stands cancelled. (MANJUNATH NAYAK) LXXVII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU. (CCH-78)