Bangalore District Court
State Of Karnataka Represented By vs T.C. Ramakrishna S/O Late on 21 September, 2017
IN THE COURT OF THE XXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU URBAN
DISTRICT, BENGALURU. (CCH-24)
Dated this the 21st day of September, 2017
PRESENT:
Shri GOPAL, B.Com.LL.B.,
XXIII Additional City Civil and Sessions Judge and
Special Judge,
Bengaluru Urban District, Bengaluru
SPL.C.C. NO.31/2009
Complainant: State of Karnataka represented by
Police Inspector, Karnataka
Lokayuktha Police Wing City Division,
Bengaluru.
(By Sri D. Ramesh Babu, Public
Prosecutor)
V/s
Accused: T.C. Ramakrishna S/o late
Thimmegowda, Tax Inspector,
Banasavadi Range, BBMP, Bengaluru.
R/at No.3, 8th Cross, Bhyraveshwara
Nagara, Bengaluru.
(By Sri M. Sharass Chandra,
Advocate)
2 Spl.C.C.No.31/2009
JUDGMENT
1. Deputy Superintendent of Police, City Division, Bengaluru submitted charge sheet against the accused for the offence punishable under section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act, 1988 alleging that the accused has amassed wealth disproportionate to his known source of income of Rs.35,10,528.00/- which is 78.37% during the tenure of his service by misusing his official position during the check period from January, 1987 to 18.2.2006 and thereby committed the alleged offence.
2. Case of the prosecution in brief is that the accused being public servant joined the service of BBMP as a Peon in the month of June, 1977 and worked in various places in Jayamahal range, K.R. Market Range and Binnypet range at Bengaluru and he was promoted as Tax Inspector in the year 1996 and at the time of 3 Spl.C.C.No.31/2009 raid he was the Tax Inspector at Nagarabhavi Range, Bengaluru.
3. Based on the credible information received by CW.1 Police Inspector Rama Mohan that the accused amassed wealth and accumulated property illegally during the tenure of his service, he prepared source report on 16.2.2006. The said source report was submitted by CW.1 Police Inspector Rama Mohan before the Superintendent of Police, Karnataka Lokayuktha, Bengaluru on 17.2.2006. On the same day, the Superintendent of Police, passed an order to CW.1 Police Inspector Rama Mohan to register the case against the accused for the offence punishable under section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act, acting under section 17 of the P.C. Act and authorized CW.1 to inspect the bank accounts and collect the relevant documents acting under section 18 of the P.C. Act. Accordingly, 4 Spl.C.C.No.31/2009 on 17.2.2006, CW.1 Police Inspector Rama Mohan registered the case in Cr.No.6/2006 against the accused for the offence punishable under section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act.
4. Further, it is the case of the prosecution that CW.1 has obtained search warrant from this Court to conduct search in the house of the accused and his in-laws house and secured CW.3 Raju Mohan Sinde and CW.2 Smt. Bapu Chandrika as panch witnesses and conducted search of the house of the accused situated at No.3, 8th Main Road, Byraweshwaranagara, Mudalapalya, Nagarabhavi Main Road on 18.2.2006 and seized seven documents in the house of the accused and listed the household articles, furniture and measured, weighed and valued the gold jewellery worn by the wife and daughter of the accused and mentioned the value of the gold ornaments in the 5 Spl.C.C.No.31/2009 mahazar and not seized the gold articles from the wife and daughter of the accused and drew the mahazar in the presence of the witnesses in the house of the accused.
5. Another team conducted search of house No.231 situated at 9th A Main Road, Vijayanagar, Bengaluru. The said team was headed by CW.51 V. Shekar who secured CW.4 Manjunath and CW.5 Smt. Lalitha as panch witnesses and conducted search of the house of the mother-in-law of the accused and in-laws of the accused and not found the documents relating to the accused and drew mahazar in the presence of the witnesses and the said mahazar was handed over to the Investigating Officer CW.52 Smt. Sudharani, Deputy Superintendent of Police, Karnataka Lokayuktha who conducted investigation by collecting documents from various departments and after completion of the investigation, obtained sanction 6 Spl.C.C.No.31/2009 order to prosecute the accused from the revenue department, Bengaluru and laid charge sheet against the accused for the alleged offences.
6. The accused was secured who represented by his counsel. Copy of the charge sheet was supplied to the accused as contemplated under section 207 of Cr.P.C and the case was posted to hear before charge. The order sheet reveals that on 13.10.2001 accused filed an application under section 227 Cr.P.C. claiming discharge for the alleged offences. That on 24.3.2014 pursuant to the memo of the learned counsel for the accused, the said discharge application came to be rejected and posted the case for framing charges. On 1.8.2014 my learned predecessor has framed the charge against the accused for the offence under section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act and it was read over and 7 Spl.C.C.No.31/2009 explained to the accused who pleaded not guilty and claimed to be tried.
7. The prosecution to prove the guilt of the accused examined ten witnesses as PWs.1 to 10 and got marked documents at Exs.P.1 to P.195. After closure of the prosecution evidence, the accused was questioned under section 313 Cr.P.C. on 8.6.2017 who denied the incriminating circumstances appearing against him as false and the accused filed an application under section 315 Cr.P.C. seeking permission to adduce his defence evidence and filed memo with xerox documents. The accused examined himself as DW.1 and got marked documents at Exs.D.1 to D.7 and closed his side of evidence.
8. The following points arise for consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that accused being public servant holding the post of Tax Inspector 8 Spl.C.C.No.31/2009 at Banaswadi range BBMP, Bengaluru and during the tenure of his service, as a public servant, for the check period from January, 1987 to 18.2.2006 acquired properties and assets disproportionate to his known source of income in his and in the name of his family members to the extent of Rs.35,10,528/- which is 78.37% for which the accused could not give satisfactory account and committed criminal misconduct and thereby the accused has committed the offence punishable under section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act, 1988 ?
2. What order ?
9. Having heard the arguments on both the sides and taking into consideration of the evidence on record coupled with the documents, my findings on the above points are:
Point No.1: In the affirmative.9 Spl.C.C.No.31/2009
Point No.2: As per final order, for the following:
REASONS
10. Point No.1:
It is the case of the prosecution that the accused being a public servant holding the post of Tax Inspector, Banaswadi Range, BBMP, Bengaluru has accumulated assets disproportionate to his known source of income, to the tune of Rs.35,10,528/- which is 78.37% during the check period from January, 1987 to 18.2.2006 and he has not satisfactorily accounted about the possession of the huge property illegally.
11. It is undisputed fact that the accused being public servant holding the post of Tax Inspector at the time of raid by the Karnataka Lokayuktha, City Division, Bengaluru and he was working at Banaswadi Range, BBMP, Bengaluru. The defence of the accused that he has not acquired the property illegally as alleged by the prosecution and the Investigating Officer has not 10 Spl.C.C.No.31/2009 considered the income of his and his wife though produced documents in the schedule.
12. Before going to decide the merits of the case, it is necessary to decide the validity of the sanction order which is sine qua non for taking cognizance of the alleged offence. In view of section 19 of the Prevention of Corruption Act, 1988, the Court cannot take cognizance of the offences punishable under section 7, 10, 11, 13 and 15 of the Prevention of Corruption Act, 1988 alleged to have been committed by the public servant except with the previous sanction obtained by the competent authority. It is well settled law that the sanction order can be challenged on two grounds; one is the competency of the sanctioning authority and another is the non- application of mind by the sanctioning authority. 11 Spl.C.C.No.31/2009
13. Ex.P.171 is the sanction order dated 15.1.2009 issued by PW.5, Commissioner of BBMP, Bengaluru. The evidence of PW.5 discloses that on 4.10.2008, Additional Director General of Police, Karnataka Lokayuktha, City Division, Bengaluru sent a requisition letter to the office of PW.5, BBMP along with prosecution papers such as FIR, final report, mahazars, statements of witnesses in 3 volumes consisting records. PW.5 after verifying the documents reached the conclusion that prima-facie the accused has amassed wealth disproportionate to his known source of income during the tenure of his service and accordingly, he accorded Ex.P.171 sanction order to prosecute the accused. The accused has denied the fact that the Lokayuktha police have not sent prosecution papers for issuing sanction order to prosecute the accused and the accused has not accumulated wealth illegally during the tenure of his services. The accused has not disputed the validity 12 Spl.C.C.No.31/2009 and competency of the sanction order issued by PW.5. In the absence of non-denial of the competency and validity of the sanction order, it can be said that the accused has admitted that PW.5 is the competent disciplinary authority for removal of the services of the accused and by applying his mind, he accorded Ex.P.171 sanction order to prosecute the accused.
14. According to the prosecution, the accused being public servant working as Tax Inspector during the tenure of his service as public servant for the check period from January, 1987 to 18.2.2016 acquired the properties in his name and in the name of his family members illegally disproportionate to his known source of income to the tune of Rs.54,89,427/- and the expenses is Rs.25,00,231/- and the income is Rs.44,79,130/- and disproportionate to his known source of income at Rs.35,10,528/- which is 78.37% and thus committed criminal misconduct. It is 13 Spl.C.C.No.31/2009 relevant to mention the particulars of asset, expenditure and income of the accused during the check period from January, 1987 to 18.2.2006 which are as under:
(a) Asset of the accused and his family members during the check period from January, 1987 to 18.2.2006.
Sl.No. Particulars of property Value in Rs.
01. Value of the building 25,25,000.00 constructed on site No.11, Khata No.1224 of Nagarabhavi, Bengaluru North Taluk, Bengaluru.
02. Value of the site bearing 2,35,000.00 No.264, 11th Block, 2nd Stage, Nagarabhavi, Bengaluru.
03. Value of the residential house 12,90,000.00 constructed on site No.51 of Malagala village, Yeshwanthapur Hobli, Bengaluru.
04. Value of the land bearing 6,500.00 Sy.No.18/1 measuring 24 guntas purchased by the accused.
05. Value of the land bearing 13,500.00 Sy.No.18/1 measuring 24 guntas of Jodichikkanahalli village.
06. The land purchased by the 28,000.00 14 Spl.C.C.No.31/2009 accused in Sy.No.122/11 measuring 38 guntas of Nalkundi village.
07. The land purchased by 24,000.00 accused in Sy.No.112/3AP1-
P1, No.112/3B, Sy.No.112/3AP1-P2, totally 29 guntas of land. 08. Land purchased by the 37,000.00 accused in Sy.No.113/1P1-P2, measuring 14 guntas, Sy.No.113/2P1-P2 measuring 2½ guntas, Sy.No.112/1BP1 measuring 14 guntas and Sy.No.112/3BP1 measuring 14 guntas of land of Nalkundi village. 09. Closing balance in Karnataka 9,242.00 State Co-operative Apex Bank Limited, Chamarajapet, S.B. A/c No.7016 of the wife of the accused Smt. Shantha. 10. Closing balance in Karnataka 14,756.00 State Co-operative Apex Bank Limited, Chamarajapet, S.B. A/c No.6941 of the accused. 11. Closing balance in Syndicate 2,283.00 Bank, Palace Guttahalli branch, S.B. A/c No.16603 of the accused. 12. Security deposit paid to get 10,250.00 electricity to the houses of the accused. 13. Value of the seven LIC policies 1,54,798.00 of the accused. 14. Value of Bajaj Scooter bearing 28,544.00 No.KA-02 W 6933 of the accused. 15. Value of Suzuki Fiero 42,300.00 15 Spl.C.C.No.31/2009 motorbike No.KA 02 EL 1622 of the son of the accused. 16. Cash found in the house of 500.00 the accused.
17. Value of the household 1,84,714.00 articles, furnitures, electronics goods listed in the mahazar.
18. Value of the gold ornaments 1,20,000.00 found in the residential house of the accused.
19. Value of the silver articles 13,840.00 found in the house of the accused.
20. Value of the Tata Indica Car 1,90,000.00 bearing No.KA 02 C 5169 belonging to the wife of the accused.
21. Value of the Tata Sumo car 5,56,000.00 bearing No.KA 43 808 belonging to the wife of the accused.
22. Value of NSC certificates of 2,200.00 the accused.
23. Value of the share certificate 1,000.00 held by the accused in Chaitanya Credit Co-operative Society Limited.
Total 54,89,427.00
(b) Expenditure of the accused and his family members during the check period which is as under:
Sl.No. Particulars of expenditure Value in Rs.
01. Food expenditure of the 4,51,557.00 accused and his family 16 Spl.C.C.No.31/2009 members.
02. Value of registration and 36,550.00 stamp fee for the registration of site bearing No.11, Khata No.1224, Nagarabhavi, Bengaluru North Taluk, Bengaluru.
03. Value of registration and 28,820.00 stamp fee for registration of site No.264, 11th Block, 2nd Stage, Nagarabhavi, Bengaluru.
04. Value of registration and 17,500.00 stamp fee for registration of site No.51, Malagala village, Yeshwanthapura Hobli, Bengaluru.
05. Value of registration and 157.00 stamp fee for registration of 26 guntas of land in Sy.No.18/12 of Jodichikkanahalli village by the accused.
06. Value of registration and 195.00 stamp fee for registration of
24 guntas of land in Sy.No.18/1 of Jodichikkanahalli village by the accused.
07. Value of registration and 622.00 stamp fee for registration of 38 guntas of land in Sy.No.122/11 of Nalkundi village by the accused.
08. Value of registration and 555.00 stamp fee for registration of totally 29 guntas of land in Sy.No.112/3AP1-P1, Sy.No.112/3B, 112/3AP1-P3 17 Spl.C.C.No.31/2009 of Nalkundi village by the accused.
09. Value of registration and 720.00 stamp fee for registration of 14 guntas of land in Sy.No.113/1P1-P2,2½ guntas of land in Sy.No.113/2P1-P2, 14 guntas of land in Sy.No.112/1BP1 and 14 guntas of land in Sy.No.112/3BP1 of Nalkundi village by the accused
10. Water charges paid by the 16,698.00 accused for residential house No.11, Khata No.1224, Nagarabhavi, Bengaluru.
11. Payment of educational fee 1,70,340.00 paid for three children of the accused.
12. Repayment of housing loan 6,98,454.00 together with interest by the wife of the accused Smt. Shantha in Central Bank.
13. Repayment of housing loan 4,73,000.00 together with interest by the wife of the accused Smt. Shantha in Karnataka State Co-operative Apex Bank.
14. Repayment of housing loan 3,71,000.00 with interest by the wife of the accused Smt. Shantha in Sent Bank.
15. Lease amount for having 10,000.00 leased the land of C.V. Thimmegowda by the accused.
16. Value of sale agreement 30,000.00 entered into between the accused and Shivaramu 18 Spl.C.C.No.31/2009
17. Payment of charges for use of 10,024.00 gas connection taken for the house of the accused.
18. Value of registration and 1,020.00 stamp fee paid for site No.422, 11th Block, Nagarabhavi 2nd Stage, Bengaluru.
19. Payment paid towards news 1,700.00 papers by the accused.
20. Payment paid towards 31,793.00 telephone charges for phone No.23211376 by the accused.
21. Payment to Instat Battery 3,000.00 House for having purchased battery.
22. Amount paid to National 3,436.00 Insurance Company Limited by the accused.
23. Electricity charges paid by the 4,425.00 accused for meter R.R.No.N2EH 50772 for his residential house.
Total 25,00,231.00
(c) Income of the accused and his family members during the check period which is as under:
Sl.No. Particulars of Income Value in Rs.
01. Total salary income of the 5,84,810.00 accused received from BBMP, Bengaluru.
02. Particulars of agricultural and 5,03,160.00 horticultural income derived 19 Spl.C.C.No.31/2009 from the lands in Jodi Chikkanahalli village, Nagamangala Taluk
03. Sale consideration of site 4,57,977.00 No.422, 11th Block, nd Nagarabhavi 2 Stage, Bengaluru.
04. Rent received from the house 2,15,900.00 No.3, 2nd B Main Road, Byraveshwaranagar, Nagarbhavi, Bengaluru.
05. Rent received by the wife of 4,29,000.00 the accused from the house No. 121/51/3, 3rd Main Road, Malagala, 8th Block, nd Nagarabhavi 2 Stage, Bengaluru.
06. Repayment of housing loan 6,25,000.00 with interest availed by the wife of the accused Smt. Shantha from Central Bank.
07. Repayment of housing loan 2,88,000.00 with interest availed by the wife of the accused Smt. Shantha from Karnataka State Co-operative Apex Bank.
08. Loan availed by the wife of 3,65,000.00 the accused from ING Vysya Bank for purchase of vehicle.
09. Loan obtained by the wife of 5,00,000.00 the accused Smt. Shantha from Sent Bank.
10. Advance amount received 5,00,000.00 relating to sale of site No.264, Nagarabhavi 2nd Stage, 11th Block, Bengaluru by the accused.
11. Interest received by the 10,283.00 accused from bank accounts.20 Spl.C.C.No.31/2009
TOTAL 44,79,130.00
15. As per the said tabulation, the asset, expenditure and income of the accused during the check period from January, 1987 to 18.2.2006 is as under:
Particulars Amount in Rs.
Total Assets 54,89,427.00
Total expenditure 25,00,231.00
Total assets and expenditure 79,89,658.00 Total income 44,79,130.00 Disproportionate asset 35,10,528.00 which is 78.37%
16. The learned counsel for the accused has submitted that the accused has joined government services in the revenue department in the year 1977 as Peon.
For calculating the check period, the prosecution has taken the month of January, 1987 to 18.2.2006 i.e., for a period of nearly 19 years. The Investigating Officer has collected the salary received by the accused during the check period and the food 21 Spl.C.C.No.31/2009 expenses of the accused and his family members and expenses of the accused and his family members. Admittedly, house situated at Vijayanagar, Bengaluru belongs to the wife of the accused. Seven small houses were constructed by the wife of the accused and leased to various persons and rent is received by her. The Investigating Officer has considered only Rs.1,00,000/- towards rent and left out Rs.1,00,000/- towards advance amount received by the accused. The Investigating Officer has not considered the LIC policy amount of Rs.1,54,798/- in the income side of the accused.
17. The learned counsel further argued that prior to the check period, 10 years savings of the accused was not considered as income of the accused by the Investigating Officer. Out of the three buildings and site, one building situated at Nagamangala was not taken into account by the Investigating Officer on the 22 Spl.C.C.No.31/2009 ground that the document was not produced by the accused to show that the said house belongs to him, value of the food and expenses for the period of 19 years valued by the prosecution is Rs.4,51,557/- is reasonable amount.
18. Further, the learned counsel for the accused submitted that the repayment of the housing loan with interest not considered in the income of the accused, but, is considered on the expenditure side. Actual salary received by the accused during the check period is Rs.5,84,000/-. The accused is claiming claiming Rs.12,00,000/- towards agricultural and horticultural income, but the Investigating Officer has considered only Rs.5,03,160/- towards agricultural income. Sale of site for Rs.4,57,977/- has to be taken into account in the income side of the accused. In pages 24, 41 and 42 shows 238 grams of gold possessed by the accused and valued at Rs.1,20,000/. 23 Spl.C.C.No.31/2009 Actually, the accused owned only 48 grams of gold and the value of the gold articles considered by the prosecution is exorbitant and far from truth. The Investigating Officer has not considered the value of purchase of the car for Rs.1,90,000/- as income on the income side of the accused. Income derived from taxi car of the accused not considered by the Investigating Officer on the income side. Agricultural income derived to the accused from 1977 i.e., 18-20 years of income was not considered by the Investigating Officer. There are two agricultural reports relied on by the prosecution wherein different amount has to be taken into consideration on the income side of the accused. The Investigating Officer has not considered the satisfactory account furnished in the schedule by the accused and wrongly held that the assets accumulated by the accused was disproportionate to his known source of income during the tenure of his services. Absolutely there is no 24 Spl.C.C.No.31/2009 disproportionate income possessed by the accused and prays for acquittal of the accused for the alleged offence.
19. The learned Public Prosecutor has submitted that the accused was working as Tax Inspector at Nagarabhavi Range, Bengaluru at the time of raid. For calculating the check period, the Investigating Officer has taken the period from January, 1987 to 18.2.2006 i.e., for a period of 19 years. The Investigating Officer has collected the documents from various departments and also considered the income, expenditure and asset of the accused basing on the documentary evidence placed on record by the prosecution. The accused has not dislodged the claim of the prosecution by furnishing satisfactory account and documents. The evidence on record proves that the accused has accumulated asset worth of Rs.35,10,528/- disproportionate to his known source 25 Spl.C.C.No.31/2009 of income during the tenure of his services and thus the accused has committed criminal misconduct and is liable to be convicted for the alleged offence.
20. Having considered the arguments canvassed by the learned counsel for the accused and the learned Public Prosecutor and perusal of the evidence on record and before embarking upon the merits of the case, it is necessary to lay down the principles and scope governing under section 13(1)(e) of the Prevention of Corruption Act, 1988, as under:
"13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct.-
xxx xxx xxx
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of 26 Spl.C.C.No.31/2009 pecuniary resources or property disproportionate to his known source of income."
21. In 1981 (3) SCC page 199 in State of Maharashtra V/s Wasudeo Ramachandra Kaidalwar wherein their Lordships have defined the scope of the provisions under section 13 of the Prevention of Corruption Act, as under:
"13......... The ingredients of the offence of criminal misconduct under section 5(2) read with section 5(1)(e) are the possession of pecuniary resource or property disproportionate to the known source of income for which the public servant cannot satisfactorily account.
To substantiate the charge, the prosecution must prove the following facts before it can bring a case under Section 5(1)(e), namely, (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property 27 Spl.C.C.No.31/2009 which were found in his possession, (3) it must be proved as to what were his known source of income i.e., known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known source of income. Once these four ingredients are established, the offence of criminal misconduct under Section 5(1)(e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under Section 5(1)(e) cannot be higher than the test laid by the Court in Jhangan case (AIR 1966 SC 1762), i.e., to establish his case by a preponderance of probability......."28 Spl.C.C.No.31/2009
22. The said principle has been consistently followed in the subsequent decisions of the Hon'ble Supreme Court in (1991) 3 SCC 655 in K. Veeraswamy V/s Union of India and others, wherein their Lordships have held as under:
" 72........ It is for the prosecution to prove that the accused or any person on his behalf, has been in possession of pecuniary resources or property disproportionate to his known source of income. When that onus is discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionality of the properties possessed by him. The section makes available statutory defence which must be proved by the accused. It is a restricted defence that is accorded to the accused to account for the disproportionality of the assets over the income. But the legal burden of proof placed on the accused is not so onerous as that of the prosecution. However, it 29 Spl.C.C.No.31/2009 is just not throwing some doubt on the prosecution version. The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily".
That means the accused has to satisfy the court that his explanation is worthy of acceptance. The burden of proof placed on the accused is an evidential burden though not a persuasive burden. The accused however, could discharge that burden of proof "on the balance of probabilities" either from the evidence of the prosecution and/or evidence from the defence."
23. In view of the principles laid down by the Hon'ble Supreme Court of India stated supra, it is essential to consider as to whether in the facts and circumstances of the case, prosecution has been able to discharge its initial burden, and if so as to whether the accused has been able to satisfactorily account therefor by discharging the burden of proof on the balance of 30 Spl.C.C.No.31/2009 probabilities. From the charge sheet, the prosecution has taken the stand during the trial, it goes without saying that the asset and income mentioned in the final investigation report during the check period have been construed and presumed as the assets of the accused. Therefore, it is necessary to examine as to whether the prosecution has been able to discharge its initial burden that the accused has been in possession of the pecuniary resources or properties disproportionate to his known source of income.
24. The accused has joined the Government service of Revenue Department as a Peon in the month of June, 1977. From 1977 to 1979, he was working as Peon in Jayamahal Range, K.R. Market range from 1979 to 1983, in Binnypet, Bengaluru, from 1983 to 1986. In the year 1996, he was promoted as Tax Collector (Inspector) and working in Banaswadi Range, BBMP for a period of four years from 2004. At the 31 Spl.C.C.No.31/2009 time of raid, he was Tax Collector in the office of ARO, Nagarabhavi Range, Bengaluru. The said fact has not been disputed by the accused.
25. Undisputed fact that the accused had married Smt. Kamala in the year 1976 and led a happy married life for about 5 year and his wife Smt. Kamala died on account of illness in the year 1981. Thereafter, in the year 1984, he again married Smt. Shantha and through her he got three children by name Prakash, Kumari Pallavi and Anil Kumar. Basing on the source report, case was registered in Cr.No.6/2006 against the accused for the offence punishable under section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act stated supra by PW.1/CW.1 Police Inspector Rama Mohan and thereafter PW.1 has obtained two search warrants and conducted raid of the house of the accused, house No.3, situated at 8th Main Road, Byraveshwaranagara, 32 Spl.C.C.No.31/2009 Mudalapalya Main Road, Nagarabhavi, Bengaluru by securing witness PW.2/CW.3 Raju Mohan Sindhe and CW.2 Bapu Chandrika and seized seven documents, measured, weighed and value of gold jewellery worn by the accused and his daughter, listed household articles, furniture, fixtures and electronic goods and seized the documents and drew mahazar at Ex.P.8 and copy of the mahazar was given to the accused by obtaining his signature on the mahazar.
26. ASSET OF THE ACCUSED:
PW.8 Investigating Officer has arrived a total asset of the accused of Rs.54,89,427/-. PW.8 has given the details of the asset of the accused during the check period in Ex.P.194 at page 82 to 84, hereas under:
Sl.No. Particulars of property Value in Rs.
01. Value of the building 25,25,000.00 constructed on site No.11, Khata No.1224 of Nagarabhavi, Bengaluru North Taluk, Bengaluru.
02. Value of the site bearing 2,35,000.00 33 Spl.C.C.No.31/2009 No.264, 11th Block, 2nd Stage, Nagarabhavi, Bengaluru.
03. Value of the residential house 12,90,000.00 constructed on site No.51 of Malagala village, Yeshwanthapur Hobli, Bengaluru.
04. Value of the land bearing 6,500.00 Sy.No.18/1 measuring 24 guntas purchased by the accused.
05. Value of the land bearing 13,500.00 Sy.No.18/1 measuring 24 guntas of Jodichikkanahalli village.
06. The land purchased by the 28,000.00 accused in Sy.No.122/11 measuring 38 guntas of Nalkundi village.
07. The land purchased by 24,000.00 accused in Sy.No.112/3AP1-
P1, No.112/3B, Sy.No.112/3AP1-P2, totally 29 guntas of land.
08. Land purchased by the 37,000.00 accused in Sy.No.113/1P1-P2, measuring 14 guntas, Sy.No.113/2P1-P2 measuring 2½ guntas, Sy.No.112/1BP1 measuring 14 guntas and Sy.No.112/3BP1 measuring 14 guntas of land of Nalkundi village.
09. Closing balance in Karnataka 9,242.00 State Co-operative Apex Bank Limited, Chamarajapet, S.B. A/c No.7016 of the wife of the accused Smt. Shantha.
10. Closing balance in Karnataka 14,756.00 34 Spl.C.C.No.31/2009 State Co-operative Apex Bank Limited, Chamarajapet, S.B. A/c No.6941 of the accused.
11. Closing balance in Syndicate 2,283.00 Bank, Palace Guttahalli branch, S.B. A/c No.16603 of the accused.
12. Security deposit paid to get 10,250.00 electricity to the houses of the accused.
13. Value of the seven LIC policies 1,54,798.00 of the accused.
14. Value of Bajaj Scooter bearing 28,544.00 No.KA-02 W 6933 of the accused.
15. Value of Suzuki Fiero 42,300.00 motorbike No.KA 02 EL 1622 of the son of the accused.
16. Cash found in the house of 500.00 the accused.
17. Value of the household 1,84,714.00 articles, furnitures, electronics goods listed in the mahazar.
18. Value of the gold ornaments 1,20,000.00 found in the residential house of the accused.
19. Value of the silver articles 13,840.00 found in the house of the accused.
20. Value of the Tata Indica Car 1,90,000.00 bearing No.KA 02 C 5169 belonging to the wife of the accused.
21. Value of the Tata Sumo car 5,56,000.00 bearing No.KA 43 808 belonging to the wife of the accused.
22. Value of NSC certificates of 2,200.00 the accused.35 Spl.C.C.No.31/2009
23. Value of the share certificate 1,000.00 held by the accused in Chaitanya Credit Co-operative Society Limited.
Total 54,89,427.00
27. Police Inspector Rama Mohan, PW.2 Raju Mohan Shinde have deposed about conduct of mahazar in the house of the accused on 18.2.2006. PW.1 further deposed that he has collected the documents at Ex.P.9 to P.58 from various departments relating to the movable and immovable properties of the accused. The accused has not disputed about drawing the mahazar in his house bearing No.3 of Byraveshwaranagar, Nagarabhavi, Bengaluru by PW.1 in the presence of the witness PW.2. The value of the gold ornaments worn by the wife and daughter of the accused were mentioned by PW.1. As per the mahazar, value of the household articles and furnitures listed in the mahazar are approximately valued by the Investigating Officer at Rs.1,84,714/-36 Spl.C.C.No.31/2009
and the said amount has been taken into asset of the accused and shown in Ex.P.194 of final investigation report in page No.82 in Sl.No.20. The said amount has not been disputed by the accused. Therefore, the value of the said household articles and electronic goods and furnitures, valued by the Investigating Officer is correctly taken into account on the asset side of the accused by the Investigation Officer.
28. PW.7 V. Shekar being the Police Inspector of Karnataka Lokayuktha, Bengaluru, has deposed that PW.1 Rama Mohan, Police Inspector entrusted to him a search warrant to conduct search in the house of in- laws of the accused situated at No.231, 1-A Main Road, Vijayanagara, Bengaluru. Accordingly, he went to the said house along with witness PW.4 T.K. Manjunath and witness CW.5 Smt. Lalitha and not found any documents relating to the accused and drew mahazar at Ex.P.70 and copy of the mahazar 37 Spl.C.C.No.31/2009 was given to the mother-in-law of the accused by name Smt. Thimmakka by obtaining her thumb impression and also copy was given to one Smt. Kamala. Ex.P.175 is the authorization letter of PW.7 to conduct search warrant at Ex.P.174 to PW.7 Police Inspector, V. Shekar. In the course of cross- examination, he denied that Smt. Thimmakka was residing in the residential house consisting of five houses. Mother-in-law of the accused Smt. Thimmakka has co-operated with him for conducting search of her house. Thus, the accused has not disputed the conduct of search of the house of his mother-in-law. The said mahazar at Ex.P.170 is not helpful to the prosecution as he has not found any documents relating to the accused in the house of his mother-in-law.
29. According to the prosecution, the accused has purchased site No.11, Khata No.1224, Nagarabhavi, 38 Spl.C.C.No.31/2009 Bengaluru North Taluk, Bengaluru on 27.2.2002 through registered sale deed and thereafter constructed a house in the said site by the accused. Again, on 16.7.2001, the accused has purchased site No.264, 11th Block, 2nd Stage, Nagarabhavi, Bengaluru jointly along with his wife Smt. Shantha and constructed the house. The prosecution has produced Ex.P.9 sale deed dated 27.2.2002 wherein wife of the accused Smt. Shantha has purchased site No.11, assessment No.46/P, Khata No.1224 situated at Nagarabhavi, Yeshwanthapura Hobli, Bengaluru North Taluk measuring 45 X 30 feet for sale consideration of Rs.1,86,000/- from J.C. Rathnam S/o G.R. Chinnaswamy Chetty. Exs.P.10 to P.13 are the tax paid receipts and encumbrance certificate with regard to the said site No.11 stands in the name of the wife of the accused. Ex.P.26 is the original registered sale deed dated 16.7.2001 whereunder the accused and his wife Smt. Shantha jointly purchased site No.264 in 39 Spl.C.C.No.31/2009 11th Block, 2nd Stage, Nagarabhavi, Bengaluru City measuring 12.60 X 9.20 mtrs for sale consideration of Rs.2,35,000/- from P.C. Narayana S/o P.H. Chinnappa. Ex.P.27 is the certificate submitted by the accused alone for approved building plan. Ex.P.28 is the indemnity bond executed by the accused and his wife jointly to BBMP. The said document discloses that the accused and his wife jointly purchased the site No.264 of Nagarabhavi, Bengaluru City for sale consideration of Rs.2,35,000/- and constructed residential house by obtaining building plan from BBMP.
30. The prosecution has produced Ex.P.112, sale deed dated 3.10.2000 whereunder wife of the accused Smt. Shantha has purchased site No.51, Khata No.131, situated at 7th Ward Malagala village, Yeshwanthapur hobli, Bengaluru North Taluk measuring 30 X 40 feet for sale consideration of Rs.1,20,000/-. Ex.P.113 is he khatha certificate. Ex.P.114 is the assessment extract 40 Spl.C.C.No.31/2009 and licence for construction of the house. Ex.P.116 is the assessment extract for the year 2000-01 discloses that the khata of the said site stands in the name of the wife of the accused Smt. Shantha. Ex.P.119 is the letter dated 12.11.2002 issued by KEB to the wife of the accused Smt. Shantha for sanctioning electric connection to the said residential house constructed on site No.75 of Malagala village. According to the prosecution, the wife of the accused has constructed a residential building in the said site No.51 of Malagala village.
31. The accused has not disputed the purchase of site No.11 by the wife of the accused under sale deed at Ex.P.9 and constructed a house thereon and the site No.264, 2nd Block, Nagarabhavi under Ex.P.26 sale deed and constructed residential house thereon and also admitted that the wife of the accused Smt. Shantha alone purchased site No.51 of Malagala 41 Spl.C.C.No.31/2009 village panchayath at Ex.P.112 and constructed residential house. On perusal of Ex.P.177, the schedule furnished by the accused discloses that the aforesaid site and construction of residential house has been disclosed by the accused in his annual property returns for the years 2002-03 to 2005-06 which clearly proves that the accused has declared the aforesaid property in the Annual Property Returns submitted to his department.
32. The prosecution to prove the valuation of the said building of the accused and his wife, examined PW.3 C.N. Anand who was working as Assistant Engineer in Technical Wing of Karnataka Lokayuktha, Bengaluru. Ex.P.169 is the building valuation report of PW.3 who clearly deposed that he has inspected three residential buildings, construction and used materials for construction of the buildings and he has measured entire buildings consisting of rooms and knowing that 42 Spl.C.C.No.31/2009 the said construction of the buildings were constructed during 2002-03 and 2005-06 respectively and totally valued the three buildings at Rs.49,49,000/- basing on the schedule rates available as on the date of completion of the construction. In the course of cross-examination, he denied correctness of the valuation of the building and PW.3 has valued the buildings in excess of Rs.5.00 lakhs. Except the said suggestion, the accused has not elicited anything from the mouth of PW.3 to discard his oral evidence and its report.
33. The accused also got examined himself as DW.1 who stated in paras 3 to 5 of his chief examination that the residential building consists of six houses which stands in the name of his wife. House at Byraveshwaranagar has been constructed by one contractor Sri Jayapal and Ex.D.6 is the agreement entered into by the said contractor with the wife of the accused. Residential 43 Spl.C.C.No.31/2009 building consists of seven houses situated at Malagala village, Bengaluru city was constructed by the said Jayapal on the basis of the lease agreement at Ex.D.7. In para 5, he has stated that the said residential buildings including the residential building stood in the name of his wife got through gift deed and he incurred of Rs.8,40,000/-. On perusal of Exs.D.6 and 7, are the agreement for construction of residential building entered by the wife of the accused Smt. Shantha and the contractor Sri Jayapal and construction of house No.3 situated Byraveshwaranagar at the cost of Rs.16.00 lakhs and Ex.D.7 is the agreement for construction of building in site No.51/3, Khata No.121, 3rd Cross, 7th Main, Malagala village measuring 40 X 30 feet entered into between the wife of the accused and Sri Jayapal for Rs.8,40,000/-. According to the accused, he has incurred only Rs.16.00,000/- for construction of the two residential buildings and the value arrived at by 44 Spl.C.C.No.31/2009 PW.3 Assistant Executive Engineer, Technical Section, Karnataka Lokayuktha, Bengaluru is higher than the valuation made by him and submitted report to Lokayuktha police. In the course of cross-examination, the accused has admitted that he has paid the amount to the contractor and the same has been shown in his passbook. The accused has produced the passbook along with the schedule. On perusal of the passbook of Karnataka State Co-operative Apex Bank which stands in the name of Smt. Shantha wife of accused discloses that on 6.12.2005 and 11.12.2005, Sri Jayapal has withdrawn an amount of Rs.12,000/- and Rs.15,000/- respectively. The said passbook of the accused discloses that on 6.9.2005, the said Jayapal withdrawn an amount of Rs.20,000/- from the account of the accused. Savings bank passbook of State Bank of Mysore of Smt. Shantha discloses that Sri Jayapal has withdrawn of Rs.30,000/- from the S.B. account of Smt. Shantha 45 Spl.C.C.No.31/2009 and on 19.4.2005, 20.4.2005, 3.5.2005, Jayapal had withdrawn of Rs.5,000/-, 15,000/- and 14,000/- respectively. Except the said amount paid by the accused and his wife, nothing has been placed before the Court to prove that he has paid cost of construction of the buildings as per the agreements at Ex.D.6 and 7 to the contractor Jayapal. I need to note that the learned counsel for the accused himself has suggested to PW.3 who has valued of Rs.5.00 lakh in excess. The accused has not stated about the construction cost of the building in his evidence and the documents, such as passbook does not prove the payments made by him and his wife as per the agreements Ex.D.6 and D.7 to the contractor Jayapal. When the accused has not disputed the valuation made by PW.3 at Ex.P.169, I hold that the valuation cost of the residential building constructed during 2003-04 for the house bearing No.3, 8th Cross, Byraveshwaranagar, Nagarabhavi, Bengaluru is 46 Spl.C.C.No.31/2009 Rs.23,39,000/- and residential house No.121/51/3, No.7, BMP, Malagala, Nagarabhavi, Bengaluru, constructed during 2002-03 is Rs.11,70,000/- and the building of the accused at Jodichikkanahalli village, Nagarabhavi, constructed during the year 2005-06 is Rs.14,40,000/- and the said amount has been shown in Ex.P.194 in page 82 including the cost of the site in Sl. Nos.1 to 3 in page 82 including cost of the site in Sl.Nos.1 to 3.
34. Learned counsel for the accused has submitted that PW.3 has not given rebate of 20% in the cost of the building towards self supervision. On perusal of Ex.P.169, buildings valuation report of PW.3 is of Rs.23,39,000/-, 11,70,000/- and 14,40,000/-, totally of Rs.49,49,000/-. PW.8 Investigating Officer has considered only valuation of the site No.11 and its building of Rs.25,25,000/- and valuation of the site and its building of Rs.12,90,000/-, totally of Rs. 47 Spl.C.C.No.31/2009 38,15,000/-. Value of the residential building situated at Jodichikkanahalli village, Nagamangala taluk, Mandya District constructed during the year 2005-06 valued of Rs.14,40,000/- not considered by the Investigating Officer on the ground that the documents of the residential house are not standing in the name of the accused and the said house was constructed by one Thimmegowda as per the information gathered from the villagers. PW.3 has not given rebate of 10% towards self supervison on the amount of cost of two buildings, totally of Rs.38,15,000/-. After deducting 10% towards self supervison in the cost of the buildings, comes to Rs.34,33,500/-. The said amount towards the cost of the building has to be taken into the asset side of the accused instead of Rs.38,15,000/-.
35. The prosecution to prove that the accused having land bearing No.18/12 of Jodichikkanahalli vgillage, 48 Spl.C.C.No.31/2009 Nagamangala Taluk, Mandya District measuring 26 guntas, purchased through registered sale deed dated 6.3.1995 whereunder the accused purchased the said land for sale consideration of Rs.6,500/- from one Venkataiah and also another sale deed marked at Ex.P.43 dated 2.8.1999 whereunder the accused purchased land bearing Sy.No.18/1 measuring 24 guntas for sale consideration of Rs.13,500/-. The said lands bearing Sy.No.18/12 and 18/1 purchased by the accused under sale deeds and the sale consideration was taken into asset of the accused and shown in Ex.P.194 at page 82 in sl.No.5 and 6. The accused has not disputed the sale consideration amount paid for the said lands owned by him and the same has been declared in the Annual Property Returns furnished in the schedule.
36. The prosecution to prove that the accused having land bearing Sy.No.122/11 measuring 38 guntas produced 49 Spl.C.C.No.31/2009 at Ex.P.44 original sale deed dated 3.5.2002 whereunder he has purchased the land bearing Sy.No.122/11 measuring 38 guntas situated at Nalkundi village, Nagamangala Taluk for sale consideration of Rs.28,000/-.
37. Ex.P.38 is the original sale deed dated 1.2.2005 whereunder the accused has purchased the land bearing Sy.No.112/3AP1-P1, Sy.No.112/3B, Sy.No.112/3AP1-P2, totally measuring 29 guntas of land for sale consideration amount of Rs.24,000/- from Thimmegowda and Govindegowda. The said property also has been declared and shown in the annual property returns by the accused and the said value of the sale consideration amount of both the lands has been taken into the asset side of the accused by the Investigating Officer.
38. Further, the prosecution to prove that the accused has purchased the land bearing Sy.No.113/1P1-P2 50 Spl.C.C.No.31/2009 measuring 14 guntas, Sy.No.113/2P1-P2 measuring 2½ guntas, Sy.No.112/ 1BP1 measuring 14 guntas and Sy.No.112/3BP1 measuring 14 guntas totally 1 acre 4½ guntas, for sale consideration of Rs.37,000/- on 27.6.2005, original sale deed is produced at Ex.P.38 which substantiates the said fact of purchase of land by the accused. The said land owned by the accused has also not been disputed. Value of the land of R.37,000/- taken into the asset account of the accused by the Investigation is proper and valid.
39. The accused has not disputed that the closing balance of Rs.9,242/- in the S.B. account of the wife of the accused Smt. Shantha in Karnataka State Co-operative Apex Bank Limited, closing balance of R.14,746/- in the S.B. account of the accused held by the accused in Karnataka State Co-operative Apex Bank and closing balance of Rs.2,283/- held by the accused in Syndicate Bank, Palace Guttahalli Branch are not in 51 Spl.C.C.No.31/2009 dispute and the said closing balance amount has been taken into asset of the accused by the Investigating Officer are not in dispute.
40. The accused has not disputed the deposit of Rs.10,250/- for obtaining electric connection and LIC policy amount of Rs.1,54,798/-, value of Bajaj scooter owned by the accused at Rs.28,544/-, Suzuki fierro vehicle bearing No.KA 02 EL 1622 owned by the son of the accused Prakash at Rs.42,300/- are not disputed and the same has been taken into asset account of the accused by the Investigating Officer which is valid and proper.
41. The accused has not disputed that the amount of Rs.500/- found in his house at the time of search and also the value of the silver articles worth Rs.13,840/- found in the house of the accused by PW.2 at the time of conducting search, value of the Tata Indica Car bearing No.KA 02 C 5169 for Rs.1,90,000/- owned 52 Spl.C.C.No.31/2009 by Smt. Shantha and also Tata Sumo Car bearing No.KA-43 808 owned by Smt. Shantha, valued at Rs.5,56,000/- and share amount of Rs.1,000/- and value of NSC certificates at Rs.2,200/- are not disputed by the accused and the same has been taken into asset account of the accused which are proper and valid. Basing on the documentary evidence stated supra, the total asset of the accused and his family members during the check period from January, 1987 to 18.2.2006 is of Rs.51,07,927/-/-. EXPENDITURE OF THE ACCUSED:
The Investigating Officer has arrived at a total expenditure of the accused of Rs.25,00,231/- during the check period and has given the details as under:
Sl.No. Particulars of expenditure Value in Rs.
01. Food expenditure of the 4,51,557.00 accused and his family members.
02. Value of registration and 36,550.00 stamp fee for the registration 53 Spl.C.C.No.31/2009 of site bearing No.11, Khata No.1224, Nagarabhavi, Bengaluru North Taluk, Bengaluru.
03. Value of registration and 28,820.00 stamp fee for registration of site No.264, 11th Block, 2nd Stage, Nagarabhavi, Bengaluru.
04. Value of registration and 17,500.00 stamp fee for registration of site No.51, Malagala village, Yeshwanthapura Hobli, Bengaluru.
05. Value of registration and 157.00 stamp fee for registration of 26 guntas of land in Sy.No.18/12 of Jodichikkanahalli village by the accused.
06. Value of registration and 195.00 stamp fee for registration of 24 guntas of land in Sy.No.18/1 of Jodichikkanahalli village by the accused.
07. Value of registration and 622.00 stamp fee for registration of 38 guntas of land in Sy.No.122/11 of Nalkundi village by the accused.
08. Value of registration and 555.00 stamp fee for registration of totally 29 guntas of land in Sy.No.112/3AP1-P1, Sy.No.112/3B, 112/3AP1-P3 of Nalkundi village by the accused.
09. Value of registration and 720.00 54 Spl.C.C.No.31/2009 stamp fee for registration of 14 guntas of land in Sy.No.113/1P1-P2,2½ guntas of land in Sy.No.113/2P1-P2, 14 guntas of land in Sy.No.112/1BP1 and 14 guntas of land in Sy.No.112/3BP1 of Nalkundi village by the accused
10. Water charges paid by the 16,698.00 accused for residential house No.11, Khata No.1224, Nagarabhavi, Bengaluru.
11. Payment of educational fee 1,70,340.00 paid for three children of the accused.
12. Repayment of housing loan 6,98,454.00 together with interest by the wife of the accused Smt. Shantha in Central Bank.
13. Repayment of housing loan 4,73,000.00 together with interest by the wife of the accused Smt. Shantha in Karnataka State Co-operative Apex Bank.
14. Repayment of housing loan 3,71,000.00 with interest by the wife of the accused Smt. Shantha in Sent Bank.
15. Lease amount for having 10,000.00 leased the land of C.V. Thimmegowda by the accused.
16. Value of sale agreement 30,000.00 entered into between the accused and Shivaramu
17. Payment of charges for use of 10,024.00 gas connection taken for the house of the accused.55 Spl.C.C.No.31/2009
18. Value of registration and 1,020.00 stamp fee paid for site No.422, 11th Block, nd Nagarabhavi 2 Stage, Bengaluru.
19. Payment paid towards news 1,700.00 papers by the accused.
20. Payment paid towards 31,793.00 telephone charges for phone No.23211376 by the accused.
21. Payment to Instat Battery 3,000.00 House for having purchased battery.
22. Amount paid to National 3,436.00 Insurance Company Limited by the accused.
23. Electricity charges paid by the 4,425.00 accused for meter R.R.No.N2EH 50772 for his residential house.
Total 25,00,231.00
42. The prosecution examined PW.6 Sri Jayadeva Prakash, working as Joint Director in Statistical Department, Karnataka Lokayuktha, City Division, Bengaluru has deposed that pursuant to the letter of the Superintendent Engineer, Karnataka Lokayuktha, City Division, he estimated the average domestic expenditure of food items of the accused and his family members for the check period from 9.6.1977 to 56 Spl.C.C.No.31/2009 18.2.2006 and valued at Rs.4,74,157/- and gave report at Ex.P.172. It is elicited that PW.6 has not taken into consideration whether food grains are grown by the accused for using or purchased from outside. Except the said suggestion, the accused has not elicited anything from the mouth of PW.6 to discard his oral evidence and his report at Ex.P.172. The accused himself has not deposed in his oral evidence that he has utilized agricultural produce grown by him in his lands. In the absence of not denying the report of Ex.P.172, I hold that the domestic expenditure on food items of the accused and his family members during the check period is correctly valued at Rs.4,74,157/-
and taking the same on the expenditure side of the accused is proper and correct.
43. The accused has not disputed the registration and stamp fee of the site purchased by the accused and his wife and also the educational expenses of his 57 Spl.C.C.No.31/2009 three children and payment of water bill, payment of house tax and cost of borewell drilled in Sy.No.18/12, 18/1 and 122/11 of Jodichikkanahalli village, Nagamangala Taluk and also repayment of housing loan along with interest to the Central Bank and Apex Bank, Sind Bank by the wife of the accused Smt. Shantha and mortgage amount received by the accused from Thimmegowda of Rs.10,000/- and advance amount received through agreement of sale at Rs.30,000/- and the gas consumption bill, news paper expenses, purchase of battery, LIC instalments and electricity bill charges are not disputed the accused. As per the prosecution, the expenditure of the accused and his family members during the check period is Rs.25,00,231/- and the said amount has been taken into the expenditure side of the accused and his family members is taken by the Investigating Officer is correct and proper.
58 Spl.C.C.No.31/2009
44. INCOME OF THE ACCUSED:
The Investigating Officer has arrived at a total income of Rs.44,79,130/- during the check period and PW.8 has given the details of income as under:
Sl.No. Particulars of Income Value in Rs.
01. Total salary income of the 5,84,810.00 accused received from BBMP, Bengaluru.
02. Particulars of agricultural and 5,03,160.00 horticultural income derived from the lands in Jodi Chikkanahalli village, Nagamangala Taluk
03. Sale consideration of site 4,57,977.00 No.422, 11th Block, nd Nagarabhavi 2 Stage, Bengaluru.
04. Rent received from the house 2,15,900.00 No.3, 2nd B Main Road, Byraveshwaranagar, Nagarbhavi, Bengaluru.
05. Rent received by the wife of 4,29,000.00 the accused from the house No. 121/51/3, 3rd Main Road, Malagala, 8th Block, Nagarabhavi 2nd Stage, Bengaluru.
06. Repayment of housing loan 6,25,000.00 with interest availed by the wife of the accused Smt. Shantha from Central Bank.
07. Repayment of housing loan 2,88,000.00 with interest availed by the 59 Spl.C.C.No.31/2009 wife of the accused Smt. Shantha from Karnataka State Co-operative Apex Bank.
08. Loan availed by the wife of 3,65,000.00 the accused from ING Vysya Bank for purchase of vehicle.
09. Loan obtained by the wife of 5,00,000.00 the accused Smt. Shantha from Sent Bank.
10. Advance amount received 5,00,000.00 relating to sale of site No.264, Nagarabhavi 2nd Stage, 11th Block, Bengaluru by the accused.
11. Interest received by the 10,283.00 accused from bank accounts.
TOTAL 44,79,130.00
45. According to the prosecution, the accused has received salary of Rs.5,84,810/- during the check period. The accused has produced the salary particulars in Ex.P.177 of the schedule which discloses in page 40 that he has received the salary from 1977 to June, 1996 at Rs.1,53,800/-, from July 1996 to February, 2006 at Rs.4,45,340/-. The prosecution produced salary particulars of the accused from July, 1996 to January, 2003 which are marked as Ex.P.168 60 Spl.C.C.No.31/2009 and from November, 1987 to June 1992 which is marked as Ex.P.166. The Investigating Officer has taken the salary amount from the month of November, 1987 to February 2006 at Rs.5,84,810/-. The accused has not disputed the said salary income drawn by the accused from his Department during the check period stated supra. Hence, I hold that the Investigating Officer has rightly taken into consideration of the said salary into the income side of the accused at Rs.5,84,810/- is proper and valid.
46. Admittedly, the accused is owned a land bearing Sy.No.18/12, Sy.No.18/1, 122/11 measuring 26 guntas, 24 guntas and 36 guntas at Nalkunda village, Nagamangala Taluk, Mandya District respectively. To prove the agricultural and horticultural income of the accused during the check period, the prosecution has examined PW.10 Dr. Mutturaj, who was the Assistant Director, Agriculture department, Nagamangala has 61 Spl.C.C.No.31/2009 deposed that on the letter of the Lokayuktha, City Division, Bengaluru he visited Nalkundi village in Sy.No.115, on 5.7.2008 in which the accused owned 10 acres of land. The accused has grown major crops such as Ragi, paddy and Huchhellu. Taking into consideration of the major crops grown by the accused in 10 acres of land in Sy.No.113/2, 113/1, 18/12, 18/1, 18/12, 122/11, 112/3, 112/3A, 112/3AP1, 112/3BP1 for the period from 1985 to 2006 and after deducting agricultural expenses of Rs.1,25,930/-, net agricultural income of the accused is at Rs.3,34,060/-. Ex.P.195 is the report of PW.10. In the course of cross-
examination, it is elicited that the operation of the agricultural system was changed from 1995 to 2006. The accused having a water facility for cultivation in his land. PW.10 admitted that a person may grow 30 to 35 quintals of paddy, 12 to 13 quintals of Ragi in one acre of land. He admits that he mentioned five years price of crop in his report. He denied the fact 62 Spl.C.C.No.31/2009 that as per the instructions of Lokayuktha police, he submitted Ex.P.195 agricultural income report to the Lokayuktha police.
47. On perusal of the schedule at Ex.P.177 furnished by the accused, in page 65, given year-wise income from cultivation of lands from July, 1996 to July 2006 including horticultural income and claimed gross income of Rs.11,92,790/- and profit of Rs.10,99,065/-, wherein he has shown his agricultural share from 1977 to 1995 received by him at Rs.10,000/- and his share of income of Rs.26,000/- upto 1996 and current year share amount of Rs.1,41,000/-, current accumulation was Rs.2,55,000/- 2,50,950/-, 2,33,000/-, 5,90,650/-, 1,73,800/-, 2,72,140/- and 1,72,500/-. In page 71, Annexure-C, he claims agricultural (joint share) has to be received at Rs.12,15,000/- as per the agreement dated 11.10.1995 and the same has been declared in the statement of assets and liabilities. The accused 63 Spl.C.C.No.31/2009 has produced xerox copy of the agreement dated 1.10.1995 entered into by him with his eight brothers with respect to the ancestral properties and agreeing to divide the ancestral properties and the income derived from agricultural income and sheep, cows, buffaloes rearing and other incomes and one of his brother Ramesh has agreed to cultivate his share of land and to give his share amount derived from the agricultural operations to the accused. He has to pay of Rs.12,15,000/- towards the share of the agricultural income of the accused from the agricultural lands and agreeing to pay the said amount as and when required by the accused. The accused has also produced xerox copy of pahani in respect of Sy.No.113/2, 113, 18/13, 18/12/P2, 12/1, 18/1, 122/11, 112, 112/3AP1-P2 and 113/2P1-P1.
48. As per the said agreement dated 11.10.1995, the accused and his brothers have divided their ancestral 64 Spl.C.C.No.31/2009 properties and also share the income from sheep, cows and buffaloes rearing, One of the brother of the accused Ramesh was agreeing to cultivate the share of the land of the accused and he is having Rs.12,15,000/- towards the share of the accused towards agricultural income and agreeing to pay the said amount as and when required by the accused. On perusal of the annual property returns in page 4 to 29 from the year 1996-1977 to 2005-06 discloses that he mentioned the aforesaid survey numbers in the asset and liabilities form and shown the agricultural income of Rs.80,000/- and Rs.85,000/- and purchased the properties out of the joint family undivided agricultural income. As per the said schedule, the accused is claiming agricultural and horticultural income of Rs.10,99,065/- besides the agricultural income valued by PW.10.
65 Spl.C.C.No.31/2009
49. The accused in para 6 of his evidence has deposed that from 1977 to 1995, his brother was cultivating his share of land by entering into an agreement and he paid an amount of Rs.12,15,000/- towards the agricultural income to him. The said amount has been shown in the Schedule and in the annual property returns and utilized the said agricultural income for paying loan instalments. In the course of cross-examination made by the prosecution, he admitted that whenever his brother paid his share amount towards agricultural income, , he credited to his account held at Apex Bank and Syndicate Bank, but his passbook does not shows the amount credited by him whenever the accused brother paid his share of agricultural income.
50. The Investigating Officer has collected Ex.P.46, panchayath Palupatti dated 29.10.1991 whereunder the accused and his seven brothers have agreed to 66 Spl.C.C.No.31/2009 divide the ancestral properties bearing Sy.No.80, 113/1, 113/2 and other ancestral properties. As per Ex.P.46, half acre of land in Sy.No.80 and 18 guntas of land in Sy.No.113/1 and 113/2 were fallen to the share of the accused. All the brothers have not signed the panchayath Palupatti which is reduced into typing on a white sheet paper. Only three brothers including the accused put their signatures on the said palupatti. All the eight brothers have not signed the palupatti. Further, the Investigating Officer has collected the documents at Ex.P.40, affidavit of the accused and his brother dated 'nil' discloses that they have agreed to divide the ancestral properties through panchayath palupatti dated 29.10.1991. As per the palupatti, they are paying kandayam to the respective share of their landed properties. The accused is in possession of the land in Sy.No.18/13, measuring 69 guntas of land as per the palupatti, but all the brothers have not signed the affidavit. Only four persons have put their 67 Spl.C.C.No.31/2009 signatures to the affidavit including the accused. The said palupatti and the affidavit proves that all the brothers have not agreed to divide the ancestral properties and as per the alleged palupatti, and their ancestral property was not divided among the brothers. If really the ancestral properties divided among the brothers amicably through palupatti, they would produce the said palupatti to the revenue department for effecting mutation to the respective share of their lands. Merely mentioning his share of property owned by him through palupatti in the annual property returns, without supporting revenue documents such as mutation extract, pahani, demand register extract, assessment extract, it cannot be said that all the brothers have got divided their ancestral properties and the accused has got the land bearing Sy.No.18/13 measuring 69 guntas of land and his brother was cultivating his share of land and paying his share of agricultural income as and when he 68 Spl.C.C.No.31/2009 required and he used credit the said amount to his savings bank account held at Apex Bank and Syndicate Bank. The said property alleged to have been owned by the accused has not been taken into the asset side of the accused, by the Investigating Officer. Therefore, the claim of the agricultural income stated supra, cannot be taken into consideration without satisfactory supporting documents. Hence, the Investigating Officer has rightly rejected the claim of the agricultural income of the accused.
51. PW.10 has depose the agricultural income of the land bearing Sy.No.18/13 alleged to have been fallen into the share of the accused under palupatti along with other properties. The said landed properties income assessed by PW.10 and mentioned in Ex.P.195 has to be deducted in the net agricultural income. Page No.123 of Ex.P.195 shows Sy.No.18/13 measuring 69 guntas and agricultural income is 69 Spl.C.C.No.31/2009 Rs.1,05,235/- and expenses is Rs.57,125/-. Both the expenses and income has to be deducted from the net income of Rs.3,34,060/- with respect to the land bearing Sy.No.18/13 and it comes to Rs.2,28,825/-, which is the net agricultural income of the accused and his family members during the check period.
52. The prosecution has examined PW. 9 D.V. Ramakrishna who was the Senior Assistant Director of Horticulture, Nagamangala, to prove the horticultural income of the accused in Sy.No.18/13 measuring 69 guntas, Sy.No.18/12 26 guntas, Sy.No.18/1 measuring 24 guntas and Sy.No.12/1 measuring 18 guntas of land. He stated that there are 121 coconut trees standing in the land and 62 coconut trees were not yielding. He calculated the income from yielding of 121 coconut trees for a period of three years at Rs.51,600/- after deducting expenses of Rs.29,000/-. Further, he stated that there are 82 sapota plants 70 Spl.C.C.No.31/2009 aged about 8 years, 67 sapota plants were aged about 8 years and 15 sapota plants aged about less than 5 years. 67 sapota plants are fruit yielding since 2005 and he calculated net income from sapota plants at Rs.11,400/- after deducting the expenses of Rs.2,000/. Further, he deposed that there are coconut standing trees in Sy.No.112/3 measuring 13 guntas, sy.No.112/3A measuring 14 guntas, Sy.No.113/P1-P2 measuring 14 guntas, Sy.No.112/3BP1 measuring 14 guntas, Sy.No.112/3B measuring 13 guntas, Sy.no.112/3AP1-p1 measuring 14 guntas and Sy.No.113/1P measuring 14 guntas, totally 2 acres 16 guntas of land. Only 14 coconut trees were yielding from 25 years and another 90 yielding trees are aged about 20 years were standing in the land. He calculated the income from coconut trees basing on the package of practice at Rs.1,69,100/-. In the course of the cross-examination, it is elicited that package of practice applies to the particular area. He 71 Spl.C.C.No.31/2009 visited the land on 5.8.2008 and prepared Ex.P.185 report in his office. He admits that as per the letter of the office of Nagamangala dated 17.8.2008, valued the income assessed by the officer for 305 yielding coconut trees, 100 coconuts per tree, totally at Rs.1,52,500/-, but the said amount has not been included in the income derived from sapota plantation. Contrary to Ex.P.195, the accused has not placed documentary evidence before the Court. I need to note that PW.9 also valued the income derived from Sy.No.18/13 measuring 69 guntas. The said land has not been considered by the Investigating Officer and also not taken into same on the asset side of the accused. Therefore, the Investigating Officer has rightly considered the agricultural income of Rs.2,28,825/- and horticultural income of Rs.1,69,100/- which comes to Rs.3,97,925/- to be taken into the side of income of the accused, instead of Rs.5,03,160/-.
72 Spl.C.C.No.31/2009
53. PW.8 Investigating Officer H.R. Radhamani has deposed about collecting of documents and submission of final report against the accused. In the course of cross-examination, the accused has elicited in page 10 of her cross-examination that PW.8 has not taken into income side of the accused with regard to the sale of properties. PW.8 has admitted that he has not taken into consideration the sale proceeds of the property of the accused into the income side. On perusal of Ex.P.194 at page 88 in Sl.No.3, the Investigating Officer has taken the same into income side of the accused with regard to the sale consideration amount of Rs.4,57,977/- in respect of sale consideration amount of the site No.422, 2nd Block, 2nd Stage, Nagarabhavi, Bengaluru. Therefore, the arguments of the learned counsel for the accused that the said sale proceeds has not been taken into account side of the accused is not acceptable as the Investigating Officer 73 Spl.C.C.No.31/2009 has already taken the same into income side of the accused.
54. Repayment of housing loan obtained by the wife of the accused from Central Bank with interest at Rs.6,25,000/-, repayment of housing loan obtained by the wife of the accused from Karnataka State Co- operative Apex Bank with interest at Rs.2,88,000/-, loan obtained from ING Vysya Bank for purchase of vehicle by the wife of the accused at Rs.3,65,000/- and housing loan obtained by the wife of the accused from Saint Bank at Rs.5,00,000/-, has been taken into income side of the accused. PW.8 has stated by oversight showing repayment of loan mentioned with interest of the land paid by the accused in the income side. And considered income side of the accused only repayment of loan stated supra. The accused has also not disputed the aforesaid housing loan obtained by 74 Spl.C.C.No.31/2009 the wife of the accused and consider the same into the income side of the accused during the check period.
55. Further, the Investigating Officer has considered the income at Rs.5.00 lakh towards advance amount received by the accused with respect to site No.264, Nagarabhavi 2nd Stage, 11th Block, Bengaluru and interest received by the accused from the bank at Rs.10,800/- is taken into income side of the accused is proper and correct.
56. RENTAL INCOME:
The accused is claiming rent received by his wife in respect of the house No.121/51/3 situated at 3rd Main, 8th B Block, Nagarabhavi and house No.3 situated at 2nd Block, Byraveshwaranagar, Nagarabhavi, Bengaluru. The accused has produced rent received from July 1996 to July 2006 and Annexure-B with regard to the rent and advance received by his wife in 75 Spl.C.C.No.31/2009 page 56 to 58 and agreements in page Nos.59 to 64 in Ex.P.177-schedule. As per the accused, his wife received rent from the aforesaid residential building, totally Rs.12,73,000/-, but PW.8 Investigating Officer has considered the total rental income for the said building at Rs.4,29,000/- towards house No.121/51/3, Malagala village and Rs.2,15,900/- with respect to house No.3, Byraveshwaranagara, Nagarabhavi, Bengaluru. DW.1 who is accused has deposed that Byraveshwaranagara residential building consists of six houses belongs to his wife. He and his wife are residing in one of the house and remaining five houses were leased out by his wife on monthly rent. PW.8 has considered only the rent of three houses and left two houses rents received by his wife in Byraveshwaranagara residential building consists six houses and the said property got by his wife through gift deed. The said building consists of three houses and received rent from three houses by the accused, 76 Spl.C.C.No.31/2009 totally Rs.4,02,000/-. The said rent received by his wife has been declared in the annual property returns to his department and also shown in the schedule.
57. PW.8 Investigating Officer has not considered the two houses stood in the name of his wife at Byraveshwaranagara, Bengaluru. Tenants of seven houses of Malagala village, have given their statements to the Investigating Officer. The Investigating Officer has not considered the mortgage amount of Rs.1,00,000/- into the income side of the accused. In the course of cross-examination made by the prosecution, the accused admits that his wife was not used to issue receipts for having received rent from the tenants. He and his wife have collected advance amount of Rs.30,000/- and R.25,000/- and the said advance amount was credited to the bank account of the wife of the accused and he admits that he has not produced the bank documents with regard 77 Spl.C.C.No.31/2009 to the credit of the advance amount received by him and his wife from the tenants. He admits that Ex.D.4 and D.5 are the agreement of lease. He only put signature as a witness. He denied the fact that he has not produced satisfactory documents before the Investigating Officer with regard to the aforesaid rent received by his wife. He admits that he has not shown the rent received by him or his wife in the income tax returns. She is not an income tax assessee. Since from three years, his wife is submitting returns to the income tax department. He admits that PW.8 Investigating Officer has considered the rent basing on the documents. In para 12 of his cross-examination, he admits that the Investigating Officer has considered the rent of Rs.43,700/- by the tenant Chikkanna for a period of 19 months. He admits that Investigating Officer has considered the rents of six tenants at Rs.7,000/- per month. The way of answer given by the accused in the cross-examination proves that PW.8 78 Spl.C.C.No.31/2009 Investigating Officer has considered the genuine rent basing on the documents and disallowed the rent claimed by the accused without supporting documents.
58. It is important to note that as per the accused, his wife Smt. Shantha got residential building at Vijayanagara, Bengaluru through gift deed. The said property has not been taken into asset side of the accused because the said property is the individual property of the wife of the accused. When the Investigating Officer has not considered the said individual property of the wife of the accused, the rent towards the said property claimed by the accused cannot be taken into the side of income of the accused. The allegation of the prosecution that the accused has purchased the property in the name of his wife through sale deed. It is not the case of the accused that his wife is earning member in his family. Vijayanagar property was gifted to his wife by her 79 Spl.C.C.No.31/2009 parents on 10.5.2001. On being investigated by PW.8, the rent received by Thimmakka who is the mother of Smt. Shantha from the tenants. Therefore, the said rental income of Vijayanagara property has not been taken into the income side of the accused. PW.8 Investigating Officer basing on the supporting documentary evidence has considered the rent received by the wife of the accused in page 88 in Ex.P.194 of final investigation report is proper and correct.
59. The learned counsel for the accused submits that PW.8 Investigating Officer has not considered the income of his son C.R. Prakash who submitted income tax returns to the authorities. The accused has produced the income tax returns of his son in Ex.P.177, in page 135 of schedule. On perusal of the returns for the assessment year 2005-06 and 2006-07 discloses that his son was doing business of supply of 80 Spl.C.C.No.31/2009 building materials and earning Rs.60,000/- during the financial year 2004-06 and Rs.1,01,960/- during the financial year 2005-06. PW.8 Investigating Officer has stated that his son has not appeared for enquiry though notice was received by him. Merely producing the two assessment years income tax returns of his son, it cannot be said that his son Prakash was doing business and he is a earning member of his family without supporting documentary evidence.
60. On reading of the decision of the Hon'ble Supreme Court of India dated 14.2.2017 in Crl. Appeal Nos.300-303/2017 and other connected appeals in State of Karnataka V/s Jayalalitha and others wherein their Lordships have observed in page 251 as under:
"176. Though considerable exchanges had been made in course of the arguments, centering around Section 43 81 Spl.C.C.No.31/2009 of the Indian Evidence Act, 1892, we are of the comprehension that those need not be expatiated in detail. Suffice it to state that even assuming that the income tax returns, the proceedings in connection therewith and the decisions rendered therein are relevant and admissible in evidence as well, nothing as such, turns thereon definitively as those do not furnish any guarantee or authentication of the lawfulness of the source(s) of income, the pith of the charge levelled against the respondents. It is the plea of the defence that the income tax returns and orders, while proved by the accused persons had not been objected to by the prosecution and further it (prosecution) as well had called in evidence the income tax returns/orders and thus, it cannot object to the admissibility of the records produced by the defence. To reiterate, even if uch returns and orders are admissible, the probative value would depend on the nature of the information 82 Spl.C.C.No.31/2009 furnished, the findings recorded in the orders and having a bearing on the charge levelled. In any view of the matter, however, such returns and orders would not ipso facto either conclusively prove or disprove the charge and can at best be pieces of evidence which have to be evaluated along with the other materials on record. Noticeably, none of the respondents has been examined on oath in the case in hand. Further, the income tax returns relied upon by the defence as well as the orders passed in the proceedings pertaining thereto have been filed/passed after the charge sheet had been submitted. Significantly, there is a charge of conspiracy and abductment against the accused persons. In the overall perspective therefore neither the income tax returns nor the order passed in the proceedings relatable thereto, either definitively attract the lawfulness of the sources of income of the accused persons or are of 83 Spl.C.C.No.31/2009 any avail to them to satisfactorily account the disproportionateness of their pecuniary resources and properties as mandated by Section 13(1)(e) of the Act."
61. In view of the above decision and without supporting the documentary evidence with regard to doing business by his son Prakash, basing on two years income tax returns, it cannot be said that he was earning member and doing business of supply of building materials. Therefore, PW.8 Investigating Officer has rightly not taken into consideration of the income of the accused son towards the income side of the accused.
62. The learned counsel for the accused further submits that PW.8 Investigating Officer has not considered the loan availed by the wife of the accused for purchase of Tata Indica car. The said fact has been admitted by PW.8 in para 18 of his cross- 84 Spl.C.C.No.31/2009 examination. On perusal of page 140 of Schedule Ex.P.177, the accused has furnished the details of bank loan availed by him and his wife for purchase of vehicles. As per the said Annexure, second hand Bajaj Auto was purchased by availing bank loan of Rs.18,000/- by his wife. The said loan availed by the wife of the accused on 10.8.1998. PW.8 Investigating Officer has not taken into consideration the said availment of loan on the income side of the accused. Therefore, the Investigating Officer has to take into consideration of the loan of Rs.18,000/- in the income side of the accused.
63. The learned counsel for the accused further submits that the Investigating Officer has taken into consideration value of 238 grams of golden ornaments in the asset column of the accused. The Investigating Officer has found only 48 grams of golden ornaments during conducting search in the 85 Spl.C.C.No.31/2009 house of the accused by PW.1. Out of 48 grams of gold, 38 grams of golden ornaments brought by his wife as 'stridhana', but the Investigating Officer has wrongly taken the value of 238 grams of gold ornaments. Therefore, value of 200 grams of gold en ornaments has to be deducted in the asset side of the accused.
64. On reading of the evidence of PW.8 Investigation Officer, he has admitted in para 23 of his cross- examination that only 48 grams of gold ornaments was found in the house of the accused during search by PW.1 Rama Mohan. Out of 48 grams of gold ornaments, 38 grams of gold belongs to 'stridhana' brought by his wife from her parental house. He calculated Rs.600/- per gram of gold and not found 200 grams of gold in the house of the accused. The learned Public Prosecutor submits that the accused has declared 238 grams of golden ornaments in the annual 86 Spl.C.C.No.31/2009 property returns. Therefore, the Investigating Officer has taken into consideration of 238 grams of gold ornaments. On perusal of the schedule of the accused who declared 238 grams of golden ornaments in the annual property returns. But actually not found 200 grams of golden ornaments in the house of the accused or in the house of his in-laws. Virtually the accused was not in possession of 200 grams of golden ornaments but he falsely declared the said golden ornaments in the annual property returns. Ex.P.8 mahazar dated 18.2.2006 discloses that PW.1 Sri Rama Mohan Police Inspector found 40 grams of gold ornaments worn by the wife of the accused and 8 grams of gold chain worn by her daughter Kumari Pallavi, totally 48 grams. The said gold ornaments were not seized by PW.1 Police Inspector Rama Mohan. PW.8 has admitted that out of 48 grams of gold, only 38 grams of gold ornaments is 'stridhana' ornaments of the wife of the accused. Remaining 10 87 Spl.C.C.No.31/2009 grams of golden ornaments value is to be taken into asset side of the accused at Rs.6,000/- instead of Rs.1,20,000/-. The accused has not produced documentary evidence to prove that he has sold 200 grams of gold out of 248 grams of golden ornaments to clear the loan availed by him and his wife and the said fact has not been stated by DW.1 in his oral evidence. Hence, the learned counsel for the accused has rightly submitted that PW.8 Investigating Officer has wrongly taken the value of 210 gold ornaments at Rs.1,20,000/- instead of Rs.6,000/-. After deducting the value of the gold ornaments of Rs.1,14,000/- from the total asset side of the accused of Rs.54,89,427/- comes to Rs.53,75,427/- is the total asset of the accused and his family members during the check period. The Income of the accused and his family members during the check period is Rs.37,08,085/-. 88 Spl.C.C.No.31/2009
65. On considering the evidence on record on the prosecution side and also on the accused side and documentary evidence, the income and expenditure and asset of the accused during the check period are as under:
Particulars Amount in Rs.
Total asset of the 49,93,927.00
accused
Total expenditure of the 25,00,231.00 accused Total asset and income 74,94,158.00 of the accused.
Total Income of the 37,08,085.00
accused
Disproportionate 37,86,073.00
income
66. On careful consideration of the evidence on record once again, the accused is claiming that he has got property under palupatti divided among his brothers and he got the property in Jodichikkanahalli, Nagamangala Taluk and his share of property has been cultivated by one of his brother Ramesh who is 89 Spl.C.C.No.31/2009 paying his share of agricultural and horticultural income as and when he requires. He has not chosen to examine his brother to prove the division of ancestral property among the brothers. As I have already stated, the palupatti was reduced into writing on a white paper, but it is not signed by all the eight brothers in the palupatti and also in the affidavit. Therefore, PW.8 has rightly not considered the said property alleged to have been got by the accused under palupatti into the asset side of the accused and as well as in the income side of the accused.
67. The accused has stated that his wife has got residential house at Vijayanagara, Bengaluru through gift deed in the year 2001. The said property has been leased by his wife and collected rent from various tenants. As per the documentary evidence, the said property purchased by his wife under sale deed Ex.P.9 on 27.2.2002 and jointly purchased the site No.264 of 90 Spl.C.C.No.31/2009 Nagarabhavi, Bengaluru under sale deed at Ex.P.26 on 16.7.2001 and site No.51 of Malagala village, Yeshantapur Hobli, Bengaluru city purchased by his wife on 3.10.2000 under sale deed at Ex.P.112. She got residential house at Vijayanagara through gift deed on 10.5.2001. Prior to 2001, she was not an earning member of the family of the accused. Under what capacity she purchased the property under registered sale deed stated supra, her sources of income to purchase the property under sale deed has not been explained and disclosed by the accused in his oral evidence.
68. It is not the case of the accused that his wife was an earning member of his family and she has purchased the site and constructed building out of her own earning. The said contention has not been taken by the accused in his oral evidence. If the site purchased by the wife of the accused from her own 91 Spl.C.C.No.31/2009 earnings, then the Court cannot tag her asset and income into the asset and income of the accused for the check period calculated by the prosecution. The accused has not chosen to examine his wife to prove her own earnings and also her sources of income to purchase the property in her name prior to 2001 and also not examined his brother to prove the partition among the brothers and he was cultivating his share of land and paying his share of agricultural and horticultural income to him to the tune of Rs.12,10,000/-. In Ex.P.40 affidavit of the accused and his brothers disclose that the accused filed a partition suit in O.S.No.249/1995 on the file of Civil Judge Court, Mandya and O.S.No.59/1995 on the file of Nagamangala Court. He has not stated whether the aforesaid partition suits came to be decreed or got it withdrawn on account of entering into compromise among the brothers. He has not produced the certified copy of the plaint, written statement or 92 Spl.C.C.No.31/2009 decree, if any of the said suits to prove the division of the ancestral property. Non-signing of the palupatti by all the brothers of the accused and not effected mutation under the palupatti, the agricultural income of the land alleged to be fallen into his share under palupatti, claimed by the accused is rightly not considered by PW.8 Investigating Officer. It is true that the initial burden lies on the prosecution to prove that the accused has purchased the property in the name of his wife under benami transaction. The prosecution to prove that the accused has purchased the property in his and in the name of his wife produced the sale deeds stated supra. The accused himself has not stated in his oral evidence as to whether his wife was an earning member prior to 2001 and she purchased the property through registered sale deed by her individual earning. The burden is on the accused to offer plausible explanation that the sale consideration amount paid by her only at the time of 93 Spl.C.C.No.31/2009 purchase of the sites and constructed residential building on her own earnings. But the said contention has not been taken by the accused and also not disclosed the sources of income of his wife for purchase of the sites under the registered sale deeds. Therefore, the accused has failed to give satisfactory explanation about the purchase of the property by his wife on her own earning. In the absence of documentary evidence, it can be presumed that the accused has purchased the property in the name of his wife. Further, the accused has not given satisfactory explanation about the accumulation of wealth disproportionate to his known source of income to the tune of Rs.37,86,073/- during the check period during the tenure of his services and committed criminal misconduct by abusing his position as public servant and amassed wealth disproportionate to his known source of income. Under these circumstances, I hold that the prosecution has proved that the accused has 94 Spl.C.C.No.31/2009 amassed wealth disproportionate to his known source of income during check period by placing cogent and supporting corroborative documentary evidence. Accordingly, I answer point No.1 in the affirmative.
69. Point No 2: In the result, I proceed to pass the following:
ORDER I find the accused T.C. Ramakrishna has committed the offences punishable under Section 13(1)(e) punishable under section 13(2) of Prevention of Corruption Act, 1988.
Case is posted to hear regarding sentence.
(Dictated to the Judgment Writer, transcribed and computerized by him, corrected, signed and then pronounced by me in open Court on this the 21st day of September, 2017) [GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 95 Spl.C.C.No.31/2009 ORDER REGARDING SENTENCE Accused is present.
Sri M. Sharass Chandra, learned advocate for the accused and Sri D. Ramesh Babu, the learned Public Prosecutor are present.
Heard with regard to sentence.
Sri M. Sharass Chandra, learned advocate for the accused submits that the accused has retired from service and he is having wife and children and suffering from age old diseases and hence the learned counsel prayed to show lenient view while imposing sentence on him.
The learned Public Prosecutor submits that the prosecution has proved the case against the accused. The accused has amassed wealth disproportionate to his known source of income. Therefore no lenient view be shown to the accused while imposing sentence and prays to impose maximum sentence to the accused.
Having heard the arguments on both sides and perused the evidence on record. This Court has already held that the accused has committed the offence punishable under the Prevention of Corruption Act, 1988. The accused has amassed wealth disproportionate to his known sources 96 Spl.C.C.No.31/2009 of income and concealed the assets to the Government and committed misconduct during his tenure of service. Taking into consideration of nature and gravity of the offences committed by the accused, he is not entitled for any leniency from this Court. Hence, I proceed to pass the following:
SENTENCE Acting under section 248(2) Cr.P.C, the accused T.C. Ramakrishna is sentenced to undergo simple imprisonment for a period of 2 years (two years) for the offence punishable under section 13(1)(e) read with 13(2) of the Prevention of Corruption Act and to pay fine of Rs.38,00,000/- (Rupees thirty eight lakhs) in default, to undergo Simple imprisonment for 6 (six) months.
Furnish free copy of the Judgment to the accused forthwith.
[GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 97 Spl.C.C.No.31/2009 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW.1: B.S.Ram Mohan PW.2: Raju Mohan Sinde PW.3: C.S.Anand PW.4: T.K.Manjunath PW.5: Dr.S.Subramanya PW.6: Jayadeva Prakasha PW.7: V.Shekhar PW.8: Smt.H.R.Radhamani PW.9: D.V.Ramakrishna PW.10: Dr.Muthu Raj
List of documents marked on behalf of prosecution:
Ex.P.1: Source Report dated 16.02.2006 Exs.P.1(a): Signature of PW.1 Ex P2 : Memo dated 17.02.2006 Ex P3 : FIR in crime No.6/2006 Exs P3(a) and 3(b) : Signatures of PW 1 Ex P4 : Search warrant of House-1685 (new 154) Ex P5 : Requisition letter dtd 17.2.2006 (Backward class department) Ex P6 : Requisition letter dtd 17.2.2006 (Youth Department) Ex P7 : Requisition letter dtd 17.2.2006 (Excise Department) Ex P8 : Mahazar dated 18.02.2006 (House) Ex P8(a) : Signature of PW 1 98 Spl.C.C.No.31/2009 Ex P8(b) : Signature of PW 2 Ex P9 : Sale deed dtd 27.02.2002 Ex P10 : Tax paid receipt Ex P 11 : Encumbrance certificate Ex P12 : Receipt/payment of tax Ex P13 : Encumbrance certificate Ex P 14 : Building plan Ex P 15 : Bank account extract Ex P 16: Letter of Bank/Central Bank of India Ex P17 : One more Central Bank of India Letter Ex P18 : Invoice/solar power Ex P19 : Extract of property register Ex P20 : B.B.M.P Notice Ex P21 : Encumbrance certificate Ex P 22: Certificate of B.B.M.P Ex P 23: Xerox copy of receipt Ex P 24: Possession Certificate Ex P 25 : Sale deed dated 22.06.2001 Ex P 26 : Sale deed Ex P 27 : Certificate/Building plan Ex P 28 : Bond Ex P 29 : Xerox copy of certificate/BBMP Ex P 30 : Xerox copy of property register Ex P 31 : Xerox copy of Encumbrance Certificate Ex P 32: Xerox copy of notice/BBMP 99 Spl.C.C.No.31/2009 Ex P 33 : Khata endorsement Exs P 34 to P37 : Lease agreements Exs P38 and P39: Sale deeds Ex P 40: Affidavit Ex P41: Sale deed Ex P 42: Agreement of sale Exs P43 to 45: Sale deeds Ex P 46: Memorandum of partition deed Exs P 47 and P48 : Two patta books Ex P49 : Genealogical tree Exs P50 to P53: Three RTC Extracts Ex P 54: Encumbrance certificate Ex P 55 to P57 : RTC extracts Ex P 58: Sketch Ex P 59 : Xerox copy of building plan Ex P 60 : Acknowledgment/ Mysore Urban Authority Exs P 61 to P67 : LIC Bonds Ex P 68 : Certificate Ex P 69 : Receipt Exs P 70 to P 91: NSC Certificates Ex P 92 : Water bill Exs P93 to P98: Some electricity bills. Ex P 99 & P100: Phone bills Ex P 101 : R.C.Book Ex P 102 : Water bill 100 Spl.C.C.No.31/2009 Exs P103 to P 111: Insurance Policies of vehicles Ex P 112: Xerox copy of sale deed Ex P 113: One xerox copy of khata certificate Ex P 114 : Property register extract (xerox) Ex P 115 : Building licence Ex P 116 : Extract of property register Ex P 117: Certificate cent back Ex P 118 : Invoice Ex P 119 : Letter of electrification Ex P 120 : One invoice Ex P 121 : One letter Ex P 122 : Sketch Ex P 123 : copy of a letter Ex P 124 : Two invoices Ex P 125 : Bill Ex P 126 : Receipt Exs P 127 to P 131 : Bills Ex P 132 : Letter of K.S.C. Apex Bank Ltd Ex P 133 : Letter of S.B. Account balance sheet Ex P 134 : Letter of Sub-Registrar, Bengaluru (North) Taluk Ex P 135 : Xerox copy of the sale deed Ex P 136 : Xerox copy of another sale deed Ex P 137 to P 143 : Status report of LIC Policy Ex P 144 : 'B' Register extract of M/C bearing No.KA 02 W 6933 101 Spl.C.C.No.31/2009 Ex P13 : Encumbrance certificate Ex P 145 : Xerox copy of sale certificate Ex P 146 : 'B' register extract of M/C KA.02.EL 1632 Ex P 147 : Xerox copy of sale certificate Ex P 148 : Letter of M/s Khivraj Motors dtd 12.6.2006 Ex P 149 : Letter from Assistant Regional Transport office Ex P 150 : 'B' register extract M/C KA.03.Z.043] Ex P 151 : 'B' register extract of M/C KA.03.EP 1451 Ex P 152 : Letter of Sub-Registrar, Nagamangala Exs P 153 to P 158 : Copies of sale deed Ex P 159 : Letter of New Cambridge, Pre-University college, fee paid report dtd 5.6.2006 Ex P 160 : Letter of New Cambridge, Pre-University college, fee paid report dtd 13.7.2006 Ex P 161 : Letter of New Cambridge, Pre-University college, School fee paid report dtd 21.7.2006 Ex P 162 : Letter of New Cambridge, Pre-University college, School fee paid report dtd 21.7.2006 Ex P 163 : Letter of New Cambridge, Pre-University college, School fee paid report dtd 21.7.2006 Ex P 164 : Letter of Central Bank of India, Jayanagara Extension, Branch, Bengaluru Ex P 165 : Letter of BBMP - Payment of tax Ex P 166 : Salary particulars of accused Ex P 167 : Salary particulars of accused 102 Spl.C.C.No.31/2009 Ex P 168 : Salary particulars of accused Ex P 169 : Building valuation report dtd 25.7.2008 Ex P 169(a) : Signature of PW 3 Ex P 170 : Mahazar at Thimmakka Ex P 170 (a) : Signature of PW 4 Ex P 170 (b) : Signature of PW 4 Ex P 171 : Sanction order Ex P 171 (a) Signature of PW 5 Ex P 172 : Food expenditure report Ex P 173 : Letter of Karnataka Lokayuktha dtd 18.2.2006 Ex P 174 : Search warrant Ex P 175 : Proceedings/orders dtd 4.12.2007 Ex P 176 : Letter of Executive Officer, Nagamangala Taluk, Mandya District Ex P 177 : Entire file of Volume No.3 Ex P 178 : Letter with copy lease agreement of Srikanta Murthy Ex P.179 : Letter of Queen Mary (University) Ex P 180 : Telephone details from BSNL Ex P 181 : 'B' register extract and connected papers from Jnanabharathi RTO, Bengaluru Ex P 182 : Rent information report of Ramesh S/o Nagarajachari Ex P 183 : In-start battery house letter dated 30.06.2008 Ex P 184 : Agriculture income and expenditure details 103 Spl.C.C.No.31/2009 Ex P 185 : Horticulture income and expenditure details Ex P 186 : Borewell expenditure report from Executive Engineer, Panchayath Raj, Nagamangala dtd 13.8.2008.
Ex P 187 : MSD enterprises - Gas Purchasing details. Ex P 188 : Apex Bank Vijayanagara Account details Ex P 189 : CENT - Bank Loan details Ex P 190 : Notice to accused Ex P 191 : Copy of sale deed issued by Sub-Registrar Ex P 192 : AGO - Salary details Ex P 193 : 'B' register extract from RTO (W) Ex P 194 : Final report Ex P 195 : Agriculture report dtd 7.8.2008 List of material objects marked on behalf of the prosecution:
Nil List of witnesses examined on behalf of accused:
DW 1 : T.C.Ramakrishna List of documents marked on behalf of accused:
Ex D 1 : Rent agreement dated 10.05.2001 Ex D 2 : Rent agreement dated 10.04.2001 Ex D 3 : Rent agreement dated 10.01.2003 Ex D 4 : Rent agreement dated 10.10.2004 104 Spl.C.C.No.31/2009 Ex D 5 : Rent agreement dated 15.10.2004 Ex D 6 : House construction agreement dated 08.07.2002 Ex D 7 : House construction agreement dated 10.08.2001 [GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU.