Madras High Court
Hamsa Manoharan vs /
Author: G.Jayachandran
Bench: G.Jayachandran
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on: 25.06.2018 Pronounced on: 02.07.2018 CORAM The Honourable Dr.Justice G.Jayachandran Criminal Appeal No.334 of 2005 1. Hamsa Manoharan 2. S.Manoharan ... Appellants/Accused 1 & 2 /versus/ State, rep. by The Inspector of Police, SPE/CBI/ACB, Chennai. ... Respondent/Complainant PRAYER: Criminal Appeal is filed under Section 374 (2) of Criminal Procedure Code, to set aside the judgment dated 23.03.2005 and made in C.C.No.42 of 1998 on the file of the Additional Special Judge for CBI Cases, Chennai. For Appellants : Mr.R.Shanmugasundaram Sr. Counsel for M/s.Gita Asokan For Respondent : Mr. K.Srinivasan Special Public Prosecutor [C.B.I] J U D G M E N T
This Criminal Appeal is directed against the judgment of the Additional Special Judge, for CBI Cases, Chennai in C.C.No.42/1988, dated 23.03.2005 holding the accused guilty of offenced under Section 120-B IPC r/w 5(1)(e) r/w 5(2) of Prevention of Corruption Act 1947 and section 5(1)(e) r/w 5(2) of Prevention of Corruption Act, 1947. For the offences under Section 120-B r/w 5(1)(e) r/w 13(2) of Prevention of Corruption Act 1988, both the accused were sentenced to undergo one year Rigorous Imprisonment and with a fine of Rs.1,000/- in default of three months Simple Imprisonment. For the offences under Section 5(1)(e) r/w 5(2) of Prevention of Corruption Act 1947 both the accused were sentenced to undergo two years RI and with a fine of Rs.5,000/- in default six months simple imprisonment.
2. The brief facts of the case:
Thiru. S.Manoharan [A2], Inspector of Central Excise and Customs Department and Tmt.Hamsa Manoharan [A1], Senior Assistant Grade-III in BHEL, Trichy, the appellants herein are husband and wife.
3. Based on reliable information, the Inspector of Police, SPE/CBI/ACB, Chennai registered a case against Tmt.Hamsa Manoharan [A1] on 17.03.1988 in Crime No. RC.15 (A)/88. The First Information Report which set the law into motion indicates that the information reveals Smt.Hamsa Manoharan's total income from all her known sources made up of her salary, loans etc. during 1977-1988 works out to be approximately Rs.1.10 lakhs. She and her family members are leading a lavish life including frequent travels by Air and stay in Five Star Hotels. The expenditure incurred by her and her family members for the said period works out to be approximately Rs.90,000/-. As such at the end of February, 1988 Smt. Hamsa Manoharan had a likely savings of only Rs.20,000/-. She is in possession of a flat at No.17, P.A.Apartments, II floor, 1st Main Road, Gandhi Nagar Costing Rs.2 lakhs, a house constructed during 1986 at No.79, Arulanandambal Nagar, opposite to Don Bosco School, Tanjore costing Rs.2.5 lakhs, and the plot at Velacherry, costly jewelleries, electric and electronic equipments and furniture costing Rs.50,000/- totalling to Rs.5 lakhs. Thus, at the end of February 1988 the accused Smt.Hamsa Manoharan was in possession of assets valued approximately Rs.4.8 lakhs which amount is disproportionate to their known sources of income of Rs.1.10 lakhs.
4. The Superintendent of Police, Smt.Letika Saran, IPS., had authorised Shri. V.Sivaprasad, Inspector of Police, to investigate the case and pursuant to the said authorisation, he took up the investigation against Smt.Hamsa Manoharan, for offence under Section 5(2) r/w 5(1)(e) of Prevention of Corruption Act, 1947, punishable under Section 5(2)(1) had been conducted.
5. In the course of investigation, it has been found that Smt.Hamsa Manoharan [A1] along with her husband Thiru. S.Manoharan [A2] had conspired with each other, to possess assets in their names and their family members name disproportionate to their known source of income and had possessed properties worth Rs.3,24,492.36 which is disproportionate to the known source of both the accused income and would not be satisfactorily account by them.
6. The final report filed by the prosecution, based on the incriminating materials collected during the investigation were placed before the Special Court for C.B.I Cases, Chennai. Disclosing the statements regarding their assets in the following manner.
List- I: Assets Held By A1 & A2 as on 01.01.1984 S.No. Description Value
1. One JAWA Motorcycle bearing No.MSM1450 Rs.5,400/-
2. One Plot at D.No.79, Arulanandammal Nagar, Tanjore Rs.10,000/-
3. Balance in Canara Bank SB A/C 362/387 Rs.28.03
4. Deposit Indane Gas Commission Rs.350.00
5. Balance in A1's account in BHEL Employees Cooperative Bank Rs.15,012.97
6. Purchase of furniture, electrical appliances and other personal effects of Accused Rs.42,020.50 Total Rs.72,811.00 List- II: Income received By A1 & A2 as on 01.01.1984 to 22.03.1988.
S.No. Description Value
1. Total pay & allowances received by A1 after deductions during the check period Rs.68,540/-
2. Amount withdrawn from the G.P.F A/c on 02.11.1983 by A1 Rs.15,730/-
3. Temporary withdrawal from G.P.F A/c by A1 during August 1986 Rs.8,000/-
4. Amount received from Srinivasan February 1988 Rs.10,000/-
5. Amount received from relative from Abudhabi Rs.6000/-
6. Sale of Gold Jewels sold to Nathans Jewellery on 20.12.1986 Rs.19,950/-
7. Pay and allowance of A2 after deduction during check period Rs.91,089/-
8. Amount withdrawn as HBA by A2 Rs.58,850/-
9. Amount received as cash & gifts during earboaring ceremony and Grahapravesam in 1986 Rs.9,415/-
10. Chit prize from M/s.Sri Ram Chits on 03.05.1986 and 11.02.1987 by A2 Rs.45,000/-
11. Amount recovered as interests in different SB A/c by A1 & A2 Rs.6,918/-
Total Rs.3,38,445.33 List- III: Expenses incurred by accused during check period S.No. Description Value
1. Domestic Expenses of accused family during check period Rs.15,452/-
2. Rent paid by accused for the house at Big Street, Triplicane Rs.13,080/-
3. Payment of chit amounts to Sri Ram Chit Fund by A1 Rs.10,428/-
4. Payment of chit amounts to Sri Ram Chit Fund by A1 Rs.6,216/-
5. Fees paid to Christ Church School in respect of Lalith Senthil during check period Rs.2,010/-
6. Fees paid to Everest Children School in respect of Sasi Saravanan Rs.1,050/-
7. Amount paid to St.Patrick Higher Secondary School for their Children Rs.1,970/-
8. LIC premium paid by A2 for policy No.49297521 Rs.1,637.10/-
9. Property Tax paid to Tanjore Municipality Rs.511.80/-
Total Rs.52,326.90/-
List-IV: Assets Held by A1 & A2 at the end of check period (i.e., as on 22.03.1988) S.No. Description Value
1. Value of Electricals appliances, one Godrej 165 Lrs Refrigerator, Furniture, personal effects, cloths etc. Rs.26,365/-
2. Value of the built in Cup Board Rs.25,000/-
3. Motor Cycle No.TSH 1250 in the name of A2 Hamsa Manoharan Rs.15,737.76/-
4. Value of Wet Grinder Rs.1,650/-
5. Value of vaccum cleaner Rs.3,450/-
6. Flat purchased at 18, No.8, 1st Mani Road, Gandhinagar in the name of A1 Rs.2,44,589/-
7. Value of the house in plot No.79, Arulanammal Nagar, Tanjore in the name of A2 Rs.1,66,000
8. Share in M/s Nirup Synedrome Ltd Rs.500/-
9. Deposit for Indane Gas connection vide 773124 Rs.450/-
10. Cash in hand Rs.1,850/-
11. SB account balance in SB account No.362/387 in Canara Bank Ice house branch Rs.8,751.63
12. SB account balance in SB account No.27465 IOB, Triplican Branch Rs.8,467.50/-
13. SB account Balance in SB account 24901/57 in Indian Bank, Adyar Branch Rs.23,584.10
14. SB account balance in SB account 24/5040 in SBI Rs.25,870.40
15. SB account balance in SB account 4/70 in SBI, Saidapet Branch in the name of A1 Rs.3080.75
16. SB account balance in SB account 5831 TNSC Bank, Triplicane transferred to Adyar Branch Rs.9,675.35
17. SB account balance in SB account 264 in BHEL Cooperative Bank Rs.19,383.41
18. SB account balance in SB account 5996 TNSC Bank, Triplican transferred to Adyar Branch Rs.14,135.94
19. SB account balance in SB account 5996 TNSC Bank, Triplicane transferred to Adyar Branch Rs.11,000.95 Total Rs.6,09,610.79
7. Charge under Section 120-B r/w 5(2) r/w 5(1)(e) and for conspiracy and for substantive offence under Section 5(2) r/w 5(1)(e) were framed and they were subjected to trial.
8. To prove the charges, the prosecution has examined 31 witnesses. 108 Exhibits were marked in support of the prosecution. In defence, 9 witnesses and 6 Exhibits were marked in their defence.
9. The trial Court, after appreciating the evidence placed before the Court by the prosecution and the accused concluded that the accused had acquired assets worth Rs.2,51,893.36 disproportionate to the known source of income and for which they are not able to satisfactorily the explanation before the Court. Both being public servant, they have accumulated assets worth of 77% in excess of their savings. It has to be presumed under Section 20 of the Prevention of Corruption Act, 1988 that they were committed misconduct in their service.
10. Aggrieved by the sentence and conviction passed by the trial Court, the present appeal is preferred on various grounds questioning the judgment as contrary to law and facts.
11. The learned Senior Counsel appearing for the appellant would submit that the trial Court judgment bristles with following defects.
(i). The sanction order Ex.P.2 and Ex.P.4 are accorded after delay of eight years had highly prejudice the accused. The sanction orders were not accorded after due application of mind and trial Court had totally failed to consider the enormous delay and non-application of mind while according the sanction order to prosecute.
12. To buttress this point, the following passage in the judgment of Hon'ble Supreme Court rendered in Subramanian Swamy vs. Manmohan Singh and another reported in (2012) 3 SCC 64 is cited.
By causing delay in considering the request for sanction, the sanctioning authority stultifies judicial scrutiny and determination of the allegations against corrupt official and thus the legitimacy of the judicial institutions is eroded. It, thus, deprives a citizen of his legitimate and fundamental right to get justice by setting the criminal law in motion and thereby frustrates his right to access judicial remedy which is a constitutionally protected right. In this connection, if we look at Section 19 of the P.C. Act, we find that no time limit is mentioned therein. This has virtually armed the sanctioning authority with unbridled power which has often resulted in protecting the guilty and perpetuating criminality and injustice in society.
(ii). The charge framed by the trial Court is misleading and improper. Two public servants cannot be roped in one trial for specific offence under Section 5(1)(e) r/w 5(2) of Prevention of Corruption Act 1947 that too without specifying the assets in possession of each of the public servant In support of this contention learned Senior Counsel relied upon the judgment of Hon'ble High Court rendered in Thiyagarajan vs. State reported in 1990 L.W.Crl. page No.228:-
Section 5(1)(e) (PC Act, 1947) does not contemplate joint possession but takes in its fold property or pecuniary resources held by any other person on behalf of the public servant. It is the definite prosecution case that the petitioner had stolen medicines from the Government Hospital and obtained disproportionate wealth. In this context, a reference to S.27 I.P.C. about the property in possession of a wife being deemed to be in that person's possession would not be out of place, though it can be argued that the section does not say, that such possession is not that of the wife also.
However, certain basic material, to indicate that both the accused had acted in concert or in association to infer that the same offence had been committed, would be necessary before a joint trial could be permitted. Further, that the accused persons committed the same offence in the course of the same transaction must also be feasible for a joint trial. The word 'transaction' means a group of acts so connected together as to involve unity, continuity and connection. The tests to decided whether different acts are part of the same transaction are proximity of time, unity of place, unity of purpose or design and continuity of action. The main test would be unity of purpose. If various acts are done in pursuance of a particular end in view they may be treated as parts of the same transaction. As to what is the same transaction must depend on the facts and circumstances of each particular case. As pointed out by the Supreme Court in Ganeswara Rao's case wherein same transaction not defend, has been considered the object of enacting S.239 Cr.P.C (old Code) corresponding to S.223 Cr.P.C (new Code) was to avoid multiplicity of trials and the only limitation which could properly be placed on the trial of several persons for the same kind of or different offences would be that which considerations of justice and fairness would require.
(iii). The materials placed by the defence for accounting the assets in their possession were not at all appreciated by the trial Court. The ocular evidence of the defence witnesses and their documents would clearly show that the investigation has not been done properly. Besides her salary, A2 had other source of income like rewards, overtime allowance, rental income etc., These income were not at all taken into account by the trial Court, despite sufficient material placed before the Court.
(iv). The trial Court has failed to consider the evidence of DW.1 Thiru.P.Srinivasan (Father of A2), DW.2 S.Vedavalli (mother of A2) and DW.5 Tmt.Pathima Hussain (mother of A2) who had spoken about the financial assistance rendered by them to A1 [Hamsa Manoharan] and A2 [Manoharan] for constructing house as well as to met out the educational expenses of their children. A2 [Manoharan] who was on deputation at Mumbai, his family was at Chennai were taken care by his grand-parents. The non-appreciation of the evidence given by the tenants of A2 [Manoharan] and non appreciation of document and ocular evidence let in by the defendants regarding rewards and overtime allowance, etc., had led to miscarriage of justice. Therefore the trial Court judgment is liable to be set-aside.
(v). In support of the contention, the learned counsel appearing for the appellants submit the below chart carrying statement of assets in comparison with the statement of assets relied by the prosecution.
List-I: Assets held by A1 & A2 as on 01.01.1984 Sl.
No Particulars Value fixed by Prosecution Explanation given by Accused
1. One JAWA Motorcycle bearing No.MSM1450 Rs.5,400.00 Rs.5,400.00
2. One plot at D.No.79, Arulanandammal Nagar, Tanjore Rs.10,000.00 Rs.10,000.00
3. Balance in Canara Bank SB A/C 362/387 Rs.28.03 Rs.28.03
4. Deposit Indane Gas Commission Rs.350.00 Rs.350.00
5. Balance in A1's account in BHEL Employees Cooperative Bank Rs.15,012.97 Rs.15,012.97
6. Purchase of furniture, electrical appliances and other personal effects of Accused Rs.42,020.50 Rs.42,020.50
7. A1 was having a saving of liquid cash
-
Rs.20,000
8. Foundation was already laid by A2 in D.No.79, Arulanandammal Nagar, Tanjore Rs.10,919 Total Rs.72,811.00 Rs.1,03,730.80 List-II: Income received by A1 & A2 during 01.01.1984 to 22.03.1988 Sl.No. Particulars Value fixed by Prosecution Explanation given by Accused
1. Total pay & allowances received by A1 after deductions during the check period Rs.68,540 Rs.68,540
2. Amount withdrawn from the G.P.F A/c on 02.11.1983 by A1 Rs.15,730 Rs.15,730
3. Temporary withdrawal from G.P.F A/c by A1 during August 1986 Rs.8,000 Rs.8,000
4. Amount received from DW1 Srinivasan February 1988 Rs.10,000 Rs.20,000
5. Amount received from relative from Abudhabi Rs.6,000 Rs.6,000
6. Sale of Gold Jewels sold to Nathans Jewellery on 20.12.1986 Rs.19,950 Rs.19,950
7. Pay and allowance of A2 after deduction during check period Rs.92,349.90 As per Ex.P.74 Rs.1,07,493.25
8. Amount withdrawn as HBA by A2 Rs.58,850 Rs.57,800
9. Amount received as cash & gits during earboaring ceremoney and Grahapravesam in 1986 Rs.9,415 Rs.111,070
10. Chit prize from M/s.Sri Ram Chits on 03.05.1986 and 11.02.1987 by A2 Rs.45,000 Rs.45,000
11. Amount recovered as interests in different SB A/c by A1 & A2 Rs.6,918 Rs.8,360.94
12. Bank loan availed by A1 in BHEL Employees Co-operative Bank on 28.03.1986 Rs.7000
13. Rewards received by A2 during check period Rs.25,000
14. Overtime allowance secured by A2 during the check period Rs.19,500
15. Rental income derived from 79, Arulanandammal Nagar, Tanjore Rs.21,040
16. Gits made by A2's mother by selling cows Rs.20,000
17. By selling Motor cycle (JAWA) Rs.4,500
18. By selling old goods Rs.3,000
19. Gift A1's mother for purchasing flat Rs.1,00,000
20. Deposits made in the minor SB A/c Rs.25,196.96
21. Value of Timber & Bricks supplied by Paternal uncle of A1 for construction Rs.22,820
22. Dividend received by A1 in BHEL Co-operative branch Rs.1,994.67 Total Rs.3,40,752.90 Rs.6,18,095.82 List-III: Expenses incurred by accused during check period Sl.
No. Particulars Value fixed by Prosecution Explanation given by Accused
1. Domestic Expenses of accused family during check period Rs.15,452.00 Rs.15,452.00
2. Rent paid by accused for the house at Big Street, Triplicane Rs.13,080.00 Rs.2,530.00
3. Payment of Chit amounts to Sri Ram Chit Fund by A1 Rs.10,428.00 Rs.10,130.00
4. Payment of Chit amounts to Sri Ram Chit Fund by A1 Rs.6,216.00 Rs.6,216.00
5. Fees paid to Christ Church school in respect of Lalith Senthil during check period Rs.2,010.00 Rs.1,040.00
6. Fees paid to Everest Children School in respect of Sasi Saravanan Rs.1,050.00
7. Amount Paid to St.Patrick Higher Secondary School for their Children Rs.1,970.00
8. LIC premium paid by A2 for policy No.49297521 Rs.1,637.00
9. Property Tax paid to Tanjore Municipality Rs.511.80 0.00 Total Rs.52,354.80 Rs.35,368.00 List-IV: Assets held by A1 & A2 at the end of check period Sl.
No. Particulars Value fixed by Prosecution Explanation given by Accused
1. Value of Electricals appliances, one Godrej 165 Lrs Refrigerator, furniture, personal effects, cloths etc Rs.26,365.00 Rs.10,365.00
2. Value of the built in Cup Board Rs.25,000.00 0.00
3. Motor cycle No.TSH 1250 in the name of A2 Hamsa Manoharan Rs.15,737.00 Rs.15,737
4. Value of Wet Grinder Rs.1,650.00 Rs.1,650.00
5. Value of vaccum cleaner Rs.3,450.00 Rs.3,450.00
6. Flat purchased at 18, No.8, 1st Main Road, Gandhinagar in the name of A1 Rs.2,44,589.00 Rs.2,44,589.00
7. Value of the house in plot No.79, Arulanammal Nagar, Tanjore in the name of A2 Rs.1,66,000.00 Rs.89,787.00
8. Share in M/s Nirup Synedrome Ltd Rs.500.00 Rs.500.00
9. Deposit for Indane Gas Connection Vide 773124 Rs.450.00 Rs.450.00
10. Cash in hand Rs.1,850.00 Rs.1,850.00
11. SB account balance in SB account No.362/387 in Canara Bank Ice house branch Rs.8,751.63 Rs.8,606.23
12. SB account balance in SB account No.27465 IOB, Triplicane branch Rs.8,467.50 Rs.8,457.50
13. SB account balance in SB account 24901/57 in Indian Bank, Adyar Branch Rs.23,584.10 Rs.23,584.10
14. SB account balance in SB account 24/5040 in SBI Rs.25,879.40 Rs.25,879.40
15. SB account balance in SB account 4/70 in SBI, Saidapet Branch in the name of A1 Rs.3,080.00 Rs.1,993.75
16. SB account balance in SB account 5831 TNSC Bank, Triplicane transferred to Adyar Branch Rs.9,675.35 Rs.9,675.35
17. SB account balance in SB account 264 in BHEL Cooperative Bank Rs.19,383.00 Rs.18,698.17
18. SB account balance in SB account 5996 TNSC Bank, Triplicane transferred to Adyar Branch Rs.14,165.94 Rs.14,195.94
19. SB account balance in SB account 5996 TNSC Bank, Triplicane transferred to Adyar Branch Rs.11,000.95 Rs.11,000.95 Total Rs.6,09,607.87 Rs.4,90,469.39
15. Per contra, in response to the appellants submissions, the learned Special Public Prosecutor would submit that the contention of the appellants were considered by the trial Court and had given reasoning for not accepting or for partially accepting. The judgment of the trial Court had answered all the defence raised by the accused and it is self explanatory. The contention of the appellant that A1 [Hamsa Manoharan] had liquid cash of Rs.20,000/- at the beginning of the check period or foundation of house at No.79, Arulanandammal Nagar, Tanjore was laid by A2 [Manoharan] prior to check period at the cost of Rs.10,919/- does not carry any merit and they are self serving statement without material evidence. The evidence of DW.8 [S.B.Ramamurthy] who has prepared the valuation of the house at D.No.79, Arulanandammal Nagar, Tanjore which is marked as Ex.D.2 is highly undervalued to support the accused, the under valuation report marked as Ex.D.3 had been pointed out during the cross examination of this witness by the prosecution. His report does not provide any evidence to show that foundation of the said building was made prior to the check period at the cost of Rs.10,919/-.
16. Regarding the income alleged to have been earned by the appellants, the pay and allowance of A2 [Manoharan] has been arrived at Rs.92,349.90 as per Ex.P.74 which is based on the pay drawn particulars maintained by the Customs Department. The pay drawn particulars of S.Manoharan [A1] had been furnished by the Superintendent, [Vigilance] Office of the Collector of Central Excise, Chennai. The authenticity of Ex.P.74 forwarded by the department need not be doubted. The claim of the appellant that Ex.P.94 & Ex.P.95 as spoken by PW.29 [S.Chandrakumar] go to show that the pay and allowance of A2 [S.Manoharan] during the check period was Rs.1,07,493.25 cannot be taken note of. Since, Ex.P.94 statement of pay drawn particulars is unauthenticated document and Ex.P.95 pay drawn particulars for the month of January, February, March 1988 and the arrears of DA paid after the check period need not be taken into account for want of authenticity.
17. Regarding the bank loan alleged to have been availed by A1 in BHEL Employees Co-operative Bank on 28.03.1986 and rewards, overtime allowance and rental income, the learned Special Public Prosecutor would submit that the trial Court after considering the evidence let in by the defence had negatived the defence that mere ocular evidence without substantiating it with the documentary evidence cannot be relied upon.
18. Regarding the pay and allowance, no credence could be given in favour of the accused/appellant. Having failed to prove the incomes mentioned in item Nos.12 to 22 of list-II furnished by the appellant, the finding of the trial Court holding the appellant guilty of possession disproportionate assets is unassailable. The learned counsel for the appellant would also state that except the evidence of DW.1 which is obviously intended to save his son and daughter in law, the expenditure met out by the appellants towards the educational expenses of his children and LIC premium cannot be excluded from the expenditure statement relied by the prosecution in List-III.
19. The learned Special Public Prosecutor for the respondent would to defend the valuation of the prosecution in respect of item No.7 at D.No.79, Arulanandammal Nagar, Tanjore in the name of A2 [S.Manoharan] by relying upon the reasoning given by the trial Court in paragraph 40 of the judgment.
20. The learned Special Public Prosecutor would further submit that the valuation report submitted by the Engineers of CPWD in compliance with the procedures laid down for valuation, the value of the property shown as Rs.1,66,000.00 is correct and appropriate, though the trial Court has reduced the value by nearly Rs.30,000/-. The learned Special Public Prosecutor would finally submit that even if there is any error in the charge framed, it does not go to the root of the matter. The appellant had understood the charge and had defended the charges not only by cross examining the prosecution witnesses and putting suggestions to them, in order to impeach the creditability of the prosecution have gone to extend of examining their relatives and other officials as defence witnesses and had marked documents through these witnesses to support their explanation. Therefore, when there is no prejudice caused in the so called error while framing charge, those errors cannot be canvassed for reversal of conviction.
21. Regarding roping two public servants under one single trial for offence under Section 5(1)(e) of Prevention of Corruption Act, 1947. The learned Special Public Prosecutor would submit that the trial Court had consciously framed charge for conspiracy against both the accused jointly and offence under Section 5 (1) (e) of Prevention of Corruption Act, punishable under Section 5(2) of Prevention of Corruption Act, 1947 separately. For the offence of conspiracy and misconduct against both the accused, the trial Court had imposed separate sentence for each of the charges and order the period of sentence to run concurrently. In the above said factual matrix, no prejudice is caused to the accused even if there is any error in framing specific charge against each of the public servants and putting them for joint trial.
22. Points for consideration Whether the trial Court judgment suffers any legal or factual infirmity which warrants reversal.
23. Based on the reliable information the Criminal law had been set into motion by registering the F.I.R by C.B.I on 17.03.1988. The reading of F.I.R would show that the case was registered initially only against 1st accused Smt.Hamsa Manoharan [A1]. The F.I.R's reads that, Smt.Hamsa Manoharan and her family members are leading a lavish life including frequent travels by Air and stay in Five Star Hotels. The alleged income incurred by her and her family members during the check period is approximately Rs.90,000/-. She is in possession of plot at Velachery, costly jewellers, electronic equipments and furnitures. totally worth Rs.5 lakhs. Besides, it is also found in the F.I.R that the reliable information had disclosed about the possession of the plot at No.17, P.A.Apartments, 2nd floor, 1st Main Road, Gandhi Nagar and a house constructed during 1986 at No.79, Arulanandammal Nagar, opposite to Dos Bosco School, Tanjore costing Rs.2.5 lakhs. However in the final report after completion of the investigation, the prosecution has given a new dimension to their case wherein it is alleged that A1 [Hamsa Manoharan] and A2 [Manoharan] at the beginning of the check period dated 01.01.1984 had asset worth Rs.72,811.00 and the end of the check period i.e.,22.03.1988, the value of the asset held by them was Rs.6,09,610.79. While the joint income of A1 [Hamsa Manoharan] & A2 [Manoharan] during the check period was only Rs.3,38,445.33 and the family expenditure was Rs.52,326.90, the amount likely to be savings during the check period was Rs.2,86,118.42. Whereas, the worth of the asset acquired during the check period was Rs.5,36,799.79. Thus, the disproportionate asset held by them is Rs.2,50,681.36. No substance found in the final report regarding the alleged lavish living or frequent Air travel and stay at five Star hotels. Neither whisper about plot at velacherry.
24. But, the trial Court has accepted the prosecution case and held that the appellants, being husband and wife are in possession of properties in excess of their known source of income. So, it has to be presumed under Section 20 of the Prevention of Corruption Act, that they have committed misconduct in their service.
25. It is pertinent to point out at this juncture that the presumption under Section 20 of the Prevention of Corruption Act does not cover offence under Section 13(1) (e) of Prevention of Corruption Act, 1988. Further, it is more pertinent to point out that this case tried by the Court below was not under the provisions of Prevention of Corruption Act, 1988 but under the provisions of Prevention of Corruption Act, 1947.
26. The check period for which the appellants were found disproportionate asset is between 01.01.1984 to 22.03.1988. The new Act and Section 20 which has been referred by the trial Court to draw presumption against the accused came into effect on 09.09.1988 much after registration of F.I.R on 17.03.1988.
27. The provisions of Prevention of Corruption Act, 1947 as it stood during the check period reads as under:
5. Criminal misconduct in discharge of official duty -
(1) A public servant is said to commit the offence of criminal misconduct:-
(a).
(b).
(c).
(d).
(e). if he, or any of his dependents, is in possession, for which the public servant cannot reasonably account, of pecuniary resources or of property disproportionate to his known sources of income.
28. The analogous provision under Prevention of Corruption Act, 1988 reads as under:-
13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct,
(a).
(b).
(c).
(d).
(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 pecuniary resources or property disproportionate to his known sources of income. Explanation. For the purposes of this section known sources of income means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to public servant.
29. On a comparative reading of these two provisions, they are not correspondence to each other. The explanation clause inserted in the new Act makes mountainous different between the old and the new Act. Insofar as the presumption clause is concerned as pointed out earlier under Section 4 of the old Act for offences under Section 5(1)(a)&(b) presumption could be drawn regarding acceptance of gratification other than legal remuneration. Similarly, Section 20 of the new act analogous to Section 4 of the old Act also restricts the presumption only to the offences in connection with acceptance of gratification other than legal remuneration. It does not cover misconduct of possessing disproportionate asset not satisfactorily accounted.
30. Thus, the trial Court while framing charge had patently erred in mentioning 13(1)(e) of Prevention of Corruption Act, 1988 as corresponding to Section 5(1)(e) of Prevention of Corruption Act, 1947. By overlooking the difference between the old Act and the new Act, more particularly the explanation clause found in new Act which is conspicuously absent in the old Act, the charge framed had caused miscarriage of justice. Mentioning the new Act as correspondence to the old Act, the trial Court has applied Section 20 of new Act to draw presumption which is improper and illegal both on facts as well as on law.
31. The next contention raised by the learned counsel appearing for the appellant is regarding the non appreciation of defence evidence by the trial Court inrespect of the income and expenditures as well as the valuation of the building at No.79, Arulanandammal Nagar, Tanjore. To start with, on scrutinising the pay and allowance of A2 [S.Manoharan] reflected in Ex.P.94 and Ex.P.95; besides the pay drawn particularly of A2 [S.Manoharan] Ex.P.74, this Court finds that while Ex.P.74 stops with the pay drawn by A2 [S.Manoharan] up to 06.01.1988, the check period is upto 22.03.1988, the salary upto to the end of check period [ie.,22.03.1988] has to be taken note to assess the income during the check period. From Ex.P.95 this Court finds that sum of Rs.2,922/- is the net pay of A2 between 07.01.1988 and 22.03.1988. Hence, a sum of Rs.92,349.90 to be added to the heading income of the accused during the check period. Though, the defence had provided a chart by way of explanation that the pay and allowance of A2 [S.Manoharan] during the check period was Rs.1,17,493.25. In fact from Ex.P.94 and Ex.P.95, this Court would finds that a sum of Rs.2,922/- alone should to be added and rest of the figure shown in Ex.P.95 are arrears of DA during the relevant point of time which has been paid to A2 [S.Manoharan] only on 12.05.1988 under Bill No.56/88 and 89 which is subsequent to the check period and therefore that cannot be taken into account.
32. Regarding claim of Rs.7,000/- under the head income from the bank loan availed by A1 [Hamsa Manoharan] in BHEL Employees Co-operative Bank on 28.03.1986, the learned counsel for the appellant would rely upon the evidence of PW.22 [Krishnan], Secretary to the BHEL Co-operative Bank Limited, Trichy and the entry in the statement of accounts maintained by the Bank which has been marked as Ex.P.59. While the prosecution had taken note of the balance in the said account, a sum of Rs.7,000/- availed as loan by A1 [Hamsa Manoharan] on 23.03.1986 ought to have been brought under the head income which the prosecution as failed to do. In Ex.P.59 as well as the evidence of PW.22 [S.S.Krishnan] the income of Rs.7,000/- for A1 [Hamsa Manoharan] through the loan during the check period is proved. Hence, this amount should be added under the head income. It is relevant to mention that while the prosecution has taken the balance in the said SB account of A1 [Hamsa Manoharan] maintained at BHEL Employees Co-operative Bank as Rs.19,383/- at the end of the check period. Whereas, at the end of check period i.e., 22.03.1988 the balance in the said account was only Rs.18,698.17 and not Rs.19,383/- as alleged by the prosecution. The perusal of the statement of account marked as Ex.P.58 confirms the above contention of the learned counsel for the appellant. The statement of account ends with 31.03.1988 indicates the balance as Rs.19,383.00. This includes the salary of Rs.1,240.24. Whereas, at the end of the check period i.e.,22.03.1988 the balance was only Rs.18,688.17. Therefore, the sum of Rs.684.83 has to be reduced in the list IV asset held by the accused at the end of check period. Though, this amount may appear to be very trivial this exposes the cavalier manner in which the prosecution has proceeded against this accused. This Court has no hesitation to say so because, this is not the only error or omission in the investigation. The omission to add the rental income from the property bearing No.79, Arulanandammal Nagar, Tanjore, the omission to add the reward amounts received by A2 [S.Manoharan] which has been spoken by DW.9 [A.Gopalakrishnan] and documentary evidence Ex.D.5 strengthens the said view. A2 [S.Manoharan] as Inspector of Central Excise had received severe commendations for effectively curbing illicit trafficking of Gold on various occasions. He had been awarded cash prize on several occasions which reflects in Ex.D.5 series and D6 series. The trial Court has gone wrong in rejecting these documents on the ground that, there is no evidence placed by the defence to show that he had actually encashed the award amounts shown in the communication of Central Excise Collector on various dates which are marked as Ex.D.5 series. The trial Court has failed to consider the evidence of DW.9 [Mr.A.Gopalakrishnan] who had mounted the witness box and said about the rewards given to him as well as A2 [S.Manoharan] through Ex.D.5 series and about the commendations received by him and A2 for their exemplary services on various occasions. Therefore lack of proof for encashment of these awards cannot be a reason to disbelieve the Ex.D.5 and Ex.D.6. Hence, this Court holds that a sum of Rs.25,100/- has to be accepted as award income of A2 [S.Manoharan] during the check period [01.01.1984 to 22.03.1988]. In the light of evidence let in by the defence through DW.9 and Ex.D.5 regarding rewards and when it is admitted fact through PW.28 [Shobachari] that A2 was working in Sahara Airport and he was eligible for overtime allowance. Contrarily Ex.P.74 does not show the particulars of overtime allowances, rewards, honorarium received by A2 [S.Manoharan] during the relevant period. Therefore, A2 [S.Manoharan] is entitled for benefit of including a sum of Rs.25,100/- towards rewards and Rs.19,500/- towards overtime allowance as he claimed. As far as, the rental income derived at No.79, Arulanandammal Nagar, Tanjore the tenants who occupied the premises have deposed before the Court as DW.2 [S.Vedavalli] and DW.4 [Tmt.Jayanthi Dharmaraj]. The reasoning attributed by the trial Court for rejecting these evidence sounds very unreasonable. While the prosecution during investigation has found that A2 [S.Manoharan] had constructed a house at No.79, Arulanandammal Nagar, Tanjore during the check period ought to have been fairly ascertained whether the house is under self occupation or let out. If, it is let out how much rental income he derived from it. The prosecution has totally failed to investigate on these lines about this. While the defence has come out with evidence that the premises was let out initially to the Police Department and thereafter, to family members of Vedavalli [DW.2] and Jayanthi Dharmarajan [DW.4] and had made out case that through the rental they have derived a sum of Rs.21,040/-. This amount, received during the check period cannot be rejected for want of documentary proof. The rental income is a known source of income.
33. It is contended by the learned counsel for the appellant that Rs.20,000/- was given by P.Srinivasan Father of A2 by way of two cheques each for Rs.10,000/-. Though Mr.Srinivasan has been examined as DW.1 and he has spoken about his pensionary income as retired, Inspector of Police and about his contribution to the accused family to meet out the expenses like the payment of fees for the children when the accused were working away from Chennai, the gift of Rs.20,000/- given by his wife DW.2 [S.Vedavallai]; A sum of Rs.20,000/- paid by way of two cheques each Rs.10,000/-. The trial Court has accepted only Rs.10,000/- but had rejected the other claims.
34. The trial Court ought to have atleast accepted the explanation regarding Rs.20,000/- paid by DW-1 to A2 by cheques. The expenditures which are found in list-III as item Nos.6, 7, 8 and 9 though, there is no direct evidence that this was meted out by DW.1 the probability cannot be ruled out.
35. Regarding the value of the house property shown in item No.7 in the List-III, the trial Court has confronted with two valuation certificates one relied by the prosecution and another relied by accused. They both shall have only persuasive value being opinion of an expert.
36. It is contended by the learned counsel for the appellant that PW.26 [S. Thomas] who had adopted the CPWD norms, had given a higher value without considering the actual money invested by the accused persons to construct the house at Tanjore during the relevant point of time. DW.8 [Ramamurthy] in his report Ex.D.2 had assess the value of the building at Rs.97,496/-. In his chief examination he had said that the approximate cost for construction of house would be Rs.58,000/-. The estimation given by him was as per the local market rate which existed in the year 1984-1985. Comparing this valuation report with the report given by PW.26 [Thomas] he had distinguished his report on the ground that PW.26 has valued the building as per CPWD rates which are 30% to 35% higher than the local market rate. Whereas, PWD rate are higher than 20% to 25% of local marked rate. The report of PW.26 does not provide any detail measurements and of work executed in the building. The trial Court while considering the valuation of the building as found in report of PW.26 [S.Thomas] and DW.8 [S.B.Ramamurthy] had accepted the report Ex.P.69 given by PW.26 [S.Thomas] on the ground that PW.26 is the competent person working in CPWD at that time, whereas DW.8 [S.B.Ramamurthy] who has given Ex.D.2 is a private license surveyor. After considering the other discrepancies between these two valuation reports, the trial Court has fixed the value of the building at the rate of Rs.1,35,173.50 instead of Rs.1,66,000/- as claimed by the prosecution. This Court finds no reason to disagree with the finding of the trial Court in this aspect.
37. On assessment of the prosecution case and the explanation of the accused; this Court reassess the statements and arrive at the following figures.
(i). Assets at the beginning of the check period:
This Court has taken note of the fact that A1 [Hamsa Manoharan] being public servant and employed in the BHEL Company and her mother who had deposed as DW.5 [Pathima Hussain] has spoken about some gifts given to her. This ought to be taken note of. Accordingly, the claim of the defence that she had Rs.20,000/- liquid cash is taken into account to arrive at the asset held by A1 [Hamsa Manoharan] and A2 [S.Manoharan] before the check period as Rs.92,811/-. [Rs.72,811.00 + Rs.20,000/-]
(ii). Income during the check period:
Under List-II; Item No.4 which deals about the amount received by DW.1 [P.Srinivasan] should be taken as Rs.20,000/- instead of Rs.10,000/- since, the said payment is by way of cheque to A2 [S.Manoharan] by DW.1 [P.Srinivasan]. This payment is well supported by documentary evidence. A sum of Rs.2,922/- is to be added under the head pay and allowance of A2 [S.Manoharan] since the salary from 07.01.1988 to 22.03.1988 is not reflected in Ex.P.74. A sum of Rs.7,000/- has to be added which is the loan amount availed by A1 [Hamsa Manoharan] and reflected in her bank statement. A sum of Rs.25,100/- towards reward; a sum of Rs.19,500/- towards overtime allowance are necessarily to be added in the income of A2 [S.Manoharan]. Since, the defence has furnished satisfactory evidence through Ex.D.5, Ex.D.6 and also spoken about this by DW.9 [Gopalakrishnan] and PW.28 [Mrs.Shobachari] respectively. Another sum of Rs.21,000/- towards the rental income from the house at Tanjore is to be added in the light of the evidence of the tenants examined as DW.3 and DW.4 thus total Rs.85,522/- is to be added to Rs.3,40,752.90 under the head income received by A1 & A2 during the check period.
(iii).Expenditure during check period:
Under the expense head, the evidence of DW.1 [P.Srinivasan] that he has met out the expenditure for his grant children education is possible and probable in the light of the fact that these children were under his custody when the father A2 [S.Manoharan] was serving elsewhere. Therefore, a sum of Rs.1,050/- the fees paid for Sasi Saravanan to the Everest Children School; A sum of Rs.1,970/- paid to St.Patrick Higher Secondary School has to be excluded from the expenses incurred.
Regarding the rent paid for occupying the house at Big street, Triplicane, the explanation given by the accused that the house was substantially occupied by his parents and rent was paid by his parents, which is supported by evidence of DW.1 [P.Srinivasan]. This Court accepts the explanation of the defence in this regard. Consider that out of Rs.13,080.00 spend for the rent, except Rs.2,530/- as accepted by the accused, the rest of the rent would have been paid by DW.1 [P.Srinivasan] who was in actual occupation of the house. Therefore, under the expenses head, a sum of Rs.10,550/- has to be deducted from the amount fixed by the prosecution for the rent paid by the accused for the house at Big Street Triplicane. To sum up under the expense head fees shown in Item Nos.5, 6 and 7; Rs.970/- in item No.5; Rs.1,050/- in item No.6 and Rs.1,970/- in item No.7, a total sum of Rs.3,590/- besides Rs.10,500/- paid towards rent has to be deleted. As a result, the total expenditure of the accused family during the check period come to (Rs.52,384.80 Rs.14,140/-) Rs.38,194.80.
(iv). Value of assets held by the accused persons at the end of the check period:
In the List-IV, a sum of Rs.25,000/- is shown as value of the build in Cup Board in item No.2. The defence contents that the amount was paid after the check period and it has to be excluded. To support his case, the accused has examined DW.7 [Shobothakumar] and also in the cross examination of PW.24 [Lokiah], the explanation given by the accused at the time of search that he yet to pay the cost has been elicited.
As far as the value of the house property shown as item No.7, the trial Court after appreciating all the evidence placed before it had reduced the value fixed by the prosecution by Rs.30,816.50 and fixing the value at Rs.1,35,175.50 instead of Rs.1,66,000/-.
As pointed out in the earlier part of this judgment the bank balance at the end of the check period i.e.,22.03.1988 was only Rs.18,698.17 Whereas, the prosecution has taken the balance as on 31.03.1988 which shows Rs.19,383.00. Therefore, Rs.684.83 has to be excluded from the value of the asset at the end of check period. So, if the value of the assets by excluding the value of the cub board Rs.25,000/- and reducing the value of the house by Rs.30,816.50 from the value shown by the prosecution and the fixing the cash balance in A1 account on 22.03.1988 as Rs.18,698.17. The total value of the asset held by the A1 and A2 at the end of the check period will be Rs.5,53,106.54.
38. The disproportionate assets of the accused 1 and 2 could be summarised as below:
1.
The asset as on 01.01.1984 Rs.92,811/-
2. The Asset as on 22.03.1988 Rs.5,53,106.54
3. Income during the period from 01.01.1984 to 22.03.1988 Rs.4,26,274.90
4. Expenditure during the period from 01.01.1984 to 22.03.1988 Rs.37,836/-
5. Assets acquired during the check period from 01.01.1984 to 22.03.1988 [2-1] [Rs.5,53,106.54 - Rs.92,811/-] Rs.4,60,295.54
6. Saving made during the period from 01.01.1984 to 22.03.1988 [3-4] Rs.4,26,274.90 Rs.37,836/-
Rs.3,88,438.90
7. Disproportionate Assets during the check period - [Saving made during the check period] [5-6] [Rs.4,60,295.54 - Rs.3,88,438.90] Rs.71,856.64 Percentage of disproportionate assets Assets during the check period X 100 Income during the check period Rs.4,60,295.54 X 100 = 118% Rs.3,88,438.90
39. On re-appreciation of the evidence, this Court finds that the actual disproportionality of the assets held by the accused persons is about 18% over and above the known source of income and not 77% has held by the Trial Court.
40. The Hon'ble Supreme Court through its judgments had considered the implication of the words disproportionate, known source of income and satisfactorily accounted in the contest of Prevention of Corruption Act.
41. In K.Veeraswami vs. Union of India and others reported in (1991) 3 SCC 655 at paragraphs 72 & 74 the Supreme Court had observed that:
Section 5(1). Clause (e) creates a statutory offence which must be proved by the prosecution. 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 sources 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 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. Counsel for the appellant however, submitted that there is no law prohibiting a public servant having in his possession assets disproportionate to his known sources of income and such possession becomes an offence of criminal misconduct only when the accused is unable to account for it. Counsel seems to be focussing too much only on one part of clause (e) of Section 5(1). The first part of clause (e) of Section 5(1) as seen earlier relates to the proof of assets possessed by the public servant. When the prosecution proves that the public servant possesses assets disproportionate to his known sources of income the offence of criminal misconduct is attributed to the public servant. However, it is open to the public servant to satisfactorily account for such disproportionality of assets. But that is not the same thing to state that there is no offence till the public servant is able to account for the excess of assets. If one possesses assets beyond his legitimate means, it goes with- out saying that the excess is out of ill-gotten gain. The assets are not drawn like nitrogen from the air. It has to be acquired for which means are necessary. It is for the public servant to prove the source of income or the means by which he acquired the assets. That is the substance of clause (e) of Section 5(1).
42. In Krishna Reddy vs. State Deputy Superintendent of Police, Hyderabad reported in 1993 Crl.LJ 308 had observed that:
It was held that to substantiate a charge under Section 5(1)(e) of the Act the ingredients to be established by the prosecution are (1) accused is a public servant, (2) the nature and the extent of pecuniary resources or property were found in his possession or any person on his behalf, (3) what were the known source of income and (4) that the property/resources found in possession of the accused or any person on his behalf were disproportionate to his known source of income. After proving these requirements by the prosecution, the burden for satisfactorily accounting for possession of such resources or property shifts to the accused.
43. In Ashok Tshering Bhutia Vs. State of Sikkim reported in CDJ 2011 SC 170 had observed that:
The unexplained income is significantly lower than what had been alleged by the prosecution, the probability of over estimation of the assessment cannot be ruled out.
44. The factual scenario of this case is that, both the appellants were Government servants, during the check period between 01.01.1984 to 22.03.1988. From the evidence placed before the trial Court, the value of the assets found in excess of the known source of income is around Rs.71,856.64 which constitutes 18% excess to their known source of income. Though, F.I.R was registered on 17.03.1988, the sanction to prosecute A1 was issued on 14.03.1998 and for A2 was issued on 07.03.1998, i.e., nearly ten years after the registration of the F.I.R and charge were framed on 4th February 1999 after further delay of one year. Due to enormous delay in according sanction to prosecute, the valuable right of the accused to satisfactorily account the assets in their possession by producing evidence for the source of income has been taken away. The delay in according sanction by no stretch of imagination could be attributed to the accused persons.
45. As pointed out by the Apex Court, mere acquisition of the property does not itself constitute an offence in the Prevention of Corruption Act, it is failure to satisfactorily account, such possession of property makes the possession objectionable and punishable. While the prosecution has projected the excess of asset multifold to the known source of income, it has been established by the defence that the excess held by them is significantly less. This Court is compelled to refer the F.I.R again which has been registered against A1 alone on the ground that she and her family members were leading a lavish life. Travelling by Air and enjoying stay in Five Star Hotels and she is in possession of a plot in Velacherry besides other assets. The prosecution after completion of their investigation had filed material regarding these allegations which they have extracted in their F.I.R. based on the so called reliable information.
46. When substantial part of the information which they relied has found to be false. The prosecution had attempted to make out a case based on the material what they have crabbed during the investigation. Obviously, the competent authorities who have granted sanction were not able to conclude positively to accord sanction hence taken 8 years to issue sanction orders Ex.P.2 and Ex.P.4.
47. On a cursory reading gives an impression that the signatories of these two documents may not be the authors of the document. This Court is force to say so since in Ex.P.2 and Ex.P4 many identical passages including punctuation are seen.
48. Be as it may, this Court holds that in view of the fact that the value of disproportionate asset and the percentage excess to the Known source of income does not warrant any conviction in this case.
49. In the result, the Criminal Appeal No.334 of 2005 is allowed. The judgment of conviction and sentence passed by learned Additional Special Judge for C.B.I Cases, in C.C.No.42 of 1998 dated 23.03.2005 is hereby set-aside. The bail bond executed if any, shall stand cancelled. Fine amount paid if any, shall be refunded to the appellants.
02.07.2018 speaking/non speaking Index :Yes Internet :Yes bsm To
1. The Additional Special Judge [CBI Cases], Chennai
2. The Inspector of Police, SPE/CBI/ACB, Chennai.
3. The Special Public Prosecutor, High Court, Madras.
Dr.G.Jayachandran,J.
Bsm Pre-delivery judgment made in Criminal Appeal No.334 of 2005 02.07.2018