Madras High Court
N.Ramadoss vs State By on 7 July, 2020
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.A.No.338 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 26.11.2019
Pronounced on : 07.07.2020
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
CRL.A.No.338 of 2006
N.Ramadoss ... Appellant
Vs.
State by,
Deputy Superintendent of Police,
Vigilance and Anti Corruption,
Chennai City-I,
Chennai.
Crime No.3 of 2001 ... Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Code of
Criminal Procedure, to call for the records in Spl.Case No.4 of 2004 on
the file of the learned Chief Judicial Magistrate, Nagapattinam, set aside
the conviction and sentence imposed on the appellant by the learned
Magistrate by the Judgment dated 28.03.2006, acquit the appellant.
For Appellant : Mr.A.V.Somasundaram for
Mr.Vimal B.Crimson
For Respondent : Mr.M.Prabhavathy
Additional Public Prosecutor
*****
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Crl.A.No.338 of 2006
JUDGMENT
This Criminal Appeal arises out of the conviction and sentence rendered by the learned Chief Judicial Magistrate, Nagapattinam in Special C.C.No.4 of 2004, dated 28.03.2006.
2.There are totally three accused in Special C.C.No.4 of 2004. On conclusion of trial, the trial Court acquitted the 2nd and 3rd accused and convicted the appellant/1st accused under Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to undergo two years rigorous imprisonment and to pay a fine of Rs.10,000/-, in default to undergo six months rigorous imprisonment.
3.The brief facts of the case are as follows:-
(i)The appellant/1st accused was working as the Inspector of Police, Voimedu Police Station in Nagapattinam District and in Ramanathapuram District between 01.11.1988 and 28.10.2001. He is a public servant which comes under Section 2(c) of the Prevention of Corruption Act, 1988. The 2nd accused and 3rd accused are the son and Page 2 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 wife of the appellant. On 01.11.1988, the appellant was found in possession of pecuniary resources and property to the tune of Rs.3,15,703.80 in his name and in the name of his wife and mother-in-
law. During the period between 01.11.1988 and 28.10.2001, the appellant was found to have received a total income of Rs.8,52,433.04 from his known sources and the total expenditure incurred by him during the relevant period has been assessed as Rs.5,21,732/-. The savings of the appellant and his family at the end of the above said period would have been only Rs.3,30,701.04. But as on 28.10.2001, the appellant was found to have acquired pecuniary resources and properties in his name and in his son, wife and mother-in-law to the extent of Rs.22,68,957/-. After deduction of the value of his properties as on 01.11.1988, the appellant is found to have acquired pecuniary resources and properties to the extent of Rs.19,53,253.20/-. After a further deduction of his saving as on 28.10.2001, the quantum of pecuniary resources and properties which are found to be disproportionate to the known sources of income of the accused works out to be Rs.16,22,552/- as on 28.10.2001.
(ii)Regarding the aforesaid assets in his possession, the appellant Page 3 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 was called upon to account for the quantum of assets in his possession through a letter dated 09.09.2003. On receipt of the same, the appellant sent a reply, which was not satisfactory and as such the appellant being the public servant during the period between 01.11.1988 and 28.10.2001, had acquired and had been in possession of pecuniary resources and properties in his name and in the name of his son, wife and mother-in- law, which were actually disproportionate to the known sources of income as on 28.10.2001 to the extent of Rs.16,22,552/- and thereby, the appellant had committed offence punishable under Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988 and in the course of same transaction, the 2nd and 3rd accused, being the son and wife of the appellant, abetted the appellant in acquisition and possession of pecuniary resources which were disproportionate to known sources of income and for which they could not give satisfactory account and thereby the 2nd and 3rd accused had also committed offence under Sections 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988 and 109 IPC. Hence, PW41, the Inspector of Police, Vigilance and Anti Corruption, Nagapattinam, registered a case against the accused on 29.11.2001 at about 01.00 p.m., in Crime No.3 of 2001. PW42, the Page 4 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 Inspector of Police, Vigilance and Anti Corruption on collection of materials and examination of witnesses laid charge sheet before the learned Chief Judicial Magistrate, Nagapattinam. On appreciation of the evidence and materials placed, the trial Court found the appellant guilty of such offence, convicted and sentenced as stated above and acquitted the 2nd and 3rd accused.
4.Before trial Court, prosecution examined 42 witnesses and marked 56 exhibits and 6 materials objects. On the side of the defence, 6 witnesses were examined and 17 exhibits were marked.
5.On questioning under Section 313 Cr.P.C the appellant denied the charges. On appreciation of evidence, oral and documentary, the trial Court under Judgment dated 28.03.2006, convicted the appellant.
6.The learned counsel appearing for the appellant submitted that the appellant is a retired Police Inspector, faced prosecution along with his son/A2 and wife/A3 in a case of disproportionate assets for the check period from 01.11.1988 to 28.10.2001. The duration of the check period Page 5 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 is 12 years, 11 months and 27 days. This long duration of check period would itself show that there have been no spurt of income in a short duration creating some suspicion. The trial Court acquitted the son/A2 and wife/A3 of the appellant, finding that they have not abetted the appellant to commit the offence in any manner. The quantum of disproportionate assets recorded by the trial Court is Rs.7,59,133/-. This quantification is not based on any evidence. The appellant gave detailed explanation/Ex.P55 to the Investigating Officer/Ex.P42 for the final opportunity notice/Ex.P54. The Investigation Officer did not give any reason for not considering the explanation [Ex.P55] and the trial Court not considered the same in a proper perspective.
7.In statement-II, the assets at the end of the check period i.e., on 28.10.2001 has been shown and quantified. In serial No.1, the period for construction of appellant's mother-in-law's house in S.No.55/4B at Kavanoor Village has been shown as 1995-1996. The construction of the house was during the year 1991-1992 and the valuation has been shown on the higher side. PW3, the Executive Engineer, PWD, on 08.08.2000 inspected the house in door No.2/150 at Kavanoorr Village, Kodavasal Page 6 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 Taluk and his report is Ex.P8. As per Ex.P8, the valuation of the building was Rs.5,73,804/- and the period of construction was between 1989-1992. The proceedings of the Executive Engineer, Construction and Maintenance, PWD, Tiruvarur/Ex.P9 on the same day on 08.08.2000, the inspection of the building bearing door No.2-209 at Ammaiyappan Village, Kodaivasal Taluk, was Rs.2,98,400/- and Ex.P11 is the proceedings. PW3 gave another valuation report/Ex.P12 for the same property in door No.2/150 at Kavanoor Village, Koduvasal Taluk, taking the period of construction for 1995-1996 and valuation is Rs.8,67,277/-.
8.The learned counsel for the appellant further submitted that PW3 admitted that Ex.P12 was given by him on the request made by the Investigating Officer/PW42 and the period of construction was fixed by PW42 as 1995-1996, which is against the basic rule of valuation and the report looses its independent assessment. PW3 being an Executive Engineer, PWD he cannot give a valuation report as per the needs of the prosecution and his report cannot be taken as an independent valuation. Page 7 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006
9.PW3 admitted in his evidence that the properties assessed and valued was situated in the Kavanoor village, 10-15% of the value were to be deducted for the house situated at Kavanoor village. Further, in usage of own men and material, 5% has to be deducted, totalling 20% of the total valuation has to be deducted. He further submitted that the water and sewage connection have to be deducted by 15%. Likewise the valuation given for bore well has to be fixed at Rs.40,000/-. For electricity connection, PW3 admitted that Rs.10,000/- has to be reduced in the value. For the suggestion, the valuation of the building at Kavanur Village could be around Rs.3,00,000/-, PW3 affirmed that he cannot deny the same.
10.The appellant submitted that the house was constructed by his mother-in-law Kanagarathinam, a person with resources, during the relevant period, she was having lands and property at Ammaiyappan Village, rented to Postal Department and BSNL Office and she was receiving rental income. This is an admitted fact. After the demise of her husband, she was living with her daughter/A2, the wife of the Page 8 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 appellant. On a demurer, if it is to be considered that the appellant constructed the house in property at Kavanur Village, it is admitted by PW3, the value of the house could be Rs.3,00,000/-.
11.The valuation of the house of Kanagarathinam at Ammaiyappan Village is of no consequence, since the same has been shown in statement-I as a property purchased before the check period. As per Ex.D17, the Deputy Inspector General of Police, Tanjavur Range in Na.Ka.No.D3/289/1998, dated 22.01.1998, PW9 confirmed same and recorded in the Service Register book/ExP16 of the appellant, as per the Tamil Nadu Government Servant, Conduct Rule, 1973. Hence, this property has to be deleted. Hence, item No.1 in statement-I has to be deleted.
12.Item No.5 in statement-I, is AKAI Color TV, purchased on 16.07.1998 and item No.6 is BPL, B/W TV purchased on 05.06.1995 were ought to be deleted, since A2 out of his earning and money received from his grand father/PW33, he purchased the same. The appellant's son/A2 examined himself as DW5 and confirmed about the same. Hence Page 9 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 it has to be deleted. Likewise item No.12 pioneer VCD 2800 watts was gifted by the appellant's son friend Saravanan in Singapore, the purchase bill of Singapore was produced and marked as Ex.D14 through DW5. The passport of DW5 marked as Ex.D13 which would show that he was in Singapore during the relevant period. Hence, this value has to be deleted. Likewise the learned counsel for the appellant submitted for item No.16 that 404 grams of gold jewels valued Rs.1,61,600/-, which were found in the appellant's house on 12.12.2001 as assets acquired by the appellant is to be deleted. DW1, Samandhi of the appellant, DW2 daughter of the appellant, DW3, another Samandhi of appellant, DW4, wife of the appellant and DW5, the son of the appellant, all categorically stated that the above jewels were presented during their marriages. Hence, without any basis 404 grams of golds is shown as assets acquired by the appellant. Hence, the same to be deleted. The search and recordings of the jewels were after the check period.
13.With regard to item No.17, the cash seized during the house search on 12.12.2001, the trial Court found the explanation was not acceptable for Rs.2,00,000/-. This is on a wrong premise in considering Page 10 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 the entire evidence of the witnesses. PW19 stated about handing over of Rs.3,50,000/- to the appellant for construction of house for DW3. DW3 is a NRI settled in Seychelles, which is admitted and accepted. DW3 stated that he sent Rs.1.54 lakhs by way of demand draft and withdrawn Rs.2,00,000/- from the bank which is confirmed by PW33 and that amount was handed over to the appellant. Hence for the entire amount of Rs.3,50,000/- the appellant given explanation. Further the evidence of PW9, PW33 and DW3 are in confirmity to the explanation of the appellant. Further the trial Court accepting the explanation for Rs.1,50,000/-, cannot deny the same for balance Rs.2,00,000/-. Hence, this amount has to be deleted. The cash of seizure of Rs.3.5 lakhs could not be considered for the reason that the check period has been fixed from 01.11.1988 to 28.10.2001 and the house search and seizure is on 12.12.2001 which is beyond the check period. Hence, the amount has to be deleted.
14.In Ex.P55 the appellant gave detailed explanation with supporting documents for various other income as well as for incurring expenditure, the Investigating Officer failed to consider the same. Page 11 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 Despite the appellant examining himself as DW6, his son as DW5, his wife as DW4, his daughter as DW2 and his two Samanthees as DW1 and DW3 had given detailed explanation with documents for the income received and the expenditure incurred. The trial Court failed to consider the same. Thus based on the evidence and materials produced by the appellant, he gave plausible explanation as to his income, expenditure and for the assets.
15.The learned counsel for the appellant further submitted that the trial Court wrongly held that the properties stood in the name of the other family members were acquired out of the income of the appellant. The trial Court failed to consider the satisfactory explanation given by the appellant for the properties acquired and possessed. The trial Court erroneously held that the mother-in-law Kanagarathinam was member of the family, since she was taken care by the appellant's wife. It is natural that the widowed mother would take a solace and comfortable living with her daughter. Hence the appellant's mother-in-law was living with his daughter. It is admitted that the mother-in-law of the appellant and her daughter-in-law, were not comfortable with each other which is clearly Page 12 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 spoken by DW4 and admitted by PW34. Further, the trial Court having acquitted A2 and A3 holding that there was no abetment by them, the trial Court ought not to have included the assets of A2 and A3 as that of the appellant. Hence, he prayed for setting aside the judgment of conviction rendered by the trial Court.
16.The learned counsel for the appellant relied upon the following citations:-
● Ashok Tshering Bhutia Versus State of Sikkim.
● M.Krishna Reddy Versus State Deputy Superintendent of Police, Hyderabad reported in (1992) 4 SCC 45.
● Krishnanand Versus The State of Madhya Pradesh reported in AIR 1977 SC 796.
● D.S.P Chennai Versus K.Inbasagarar.
● Jagan M.Seshadri Versus State of Tamil Nadu reported in AIR 2002 SC 2399.
17.The Additional Public Prosecutor appearing for the respondent filed written arguments and submitted that the trial Court on examination of witnesses and on proper assessment of the documents produced both Page 13 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 by the prosecution as well as defence had rightly found A2 & A3 had not abetted A1. On the other hand A1 had used their name and that of his mother-in-law in acquiring the assets. It is admitted that Kanagarathinam, the mother-in-law of the appellant lost her husband during 1980 and thereafter, she was living with the appellant's family. In Ex.D5, the will executed on 16.08.1990, it is mentioned by the said Kanagarathinam that she was taken care and supported by her daughter, Sundari, wife of the appellant. The said Kanagarathinam had only small agricultural land without any income. The rental income which she was receiving from Ammaiyappan Village property was also very meager. With this amount she would not be in a position to put up a construction of two floors, more so after executing the will.
18.The learned Additional Public Prosecutor further submitted that PW3 the Executive Engineer of PWD, conducted inspection, valued the property and gave Ex.P8, the valuation report. PW3 prepared his report on erroneous representation of the appellant that the house was constructed during 1989-1991. The investigating officer during investigation came to know that the property was constructed during Page 14 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 1995-1996. Hence the valuation of the house was found to be Rs.8,67,277/- as per schedule of rates for the year 1995-1996. Further from the statement-I, four properties were found acquired before the check period. These four properties though found in statement-II at item Nos.20-23, the same had been deducted and given credit. The appellant though stated that his increment and rewards were not taken as income, he had failed to produce any documents to that effect.
19.It is seen that the mother-in-law of the appellant executed a will during the year 1990 and thereafter only the constructions have been put up. The executor of will had made indication in the year 1990 and constructions was in progress. Further, she was not having resources to put up such construction. Ex.P7 is the statement-I, Ex.P48 is the statement-II, Ex.P49 is the statement-III, Ex.P50 is the statement-IV, Ex.P51 is the statement-V and Ex.P53 is the statement-IV. Thus the prosecution categorized the income, expenditure, savings and property held by the appellant
20.The entire statements was furnished to the appellant by final Page 15 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 opportunity notice served to him on 08.08.2003. On receipt of the same, the appellant sent a reply on 13.10.2003, which is Ex.P55. Since the reply was not satisfactory, the same was not considered and hence, the charge sheet was filed. The trial Court on considering the same found the appellant could not account for Rs.2,00,000/- out of Rs.3,50,000/- seized during house search. The jewels for 404 grams were valued around Rs.1,61,600/-, the explanation given was not acceptable. For the purchase of B/W T.V/Item No.6 as well as AKAI color TV/Item No.5, the appellant's son DW5 in his evidence stated that he purchased the same with the support of his grand father/PW33. This was not considered since PW33 had not stated so. Further during major part of the check period, DW5 was a student without much earning, hence the lower Court held DW5 could not have purchased both TVs. Likewise the explanation given by the appellant as well as his son/DW5 for item No.12/pioneer VCD that it was presented by his friend Saravanan at Singapore was not considered for the reason except by producing bill, there is no other material to show that the said Saravanan purchased the same. In this case the said Saravanan was examined. Hence the trial Court rejected the contention of the appellant.
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21.Further, the appellant claimed that he had not incurred expenditure for the marriage for his daughter/DW2 and as well as for his son DW5. The contention of the appellant was not accepted, further the marriage expenses were only meager. The trial Court accepted the presentation of the Indiga Car by DW3 as well as handing over of Rs.1,50,000/- for construction of the house.
22.The trial Court accepted the explanation for major portion of the jewels found in the house of the appellant. Likewise for the purchase of property by the appellant's wife Sundari, DW4, considering the milk vending business and agricultural income, the purchase of property at Kavanur Village was accepted. The trial Court after considering the evidence and explanation given by the appellant as well as other accused namely DW4 and DW5, reduced the disproportionate assets, found the appellant was still holding disproportionate assets for which he could not give explanation, convicted him. Hence, the judgment of the trial Court need not be interfered with and hence prayed for dismissal. Page 17 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006
23.This Court considered the rival submissions and perused the materials available on records.
24.The appellant is a former Inspector of Police and a public servant. The check period is 01.11.1988 to 28.10.2001 and the disproportionate assets arrived is Rs.16,22,552/-. During the trial, A2 and A3, the son and wife of the appellant were acquitted from the charges of abetment against which there is no appeal. It is seen that the immovable properties are in the name of the appellant's wife/A3 and his mother-in-law Kanagarathinam. The said Kanagarathinam after the demise of her husband Pakkirisamy was residing with her daughter/A3. PW34/the brother of A3, as well as A3, who examined herself as DW4, confirmed the same. The said Kanagarathinam passed away during the year 1996. The mother-in-law of the appellant Kanagarathinam, was a person with resources, holding property even in the year 1978 and she also purchased a property in the year 1987 and had agriculture land, received rental income, which is not in dispute. The dispute is who constructed the two storied house at site No.55/4B, Kavanoor Village. Page 18 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 According to the prosecution, the house was constructed in the year 1995-1996 by the appellant. The said Kanagarathinam had no necessity and means to construct such a house at that age, more so, after she executing the registered will on 16.08.1990. The appellant's wife inherited the property. The same was informed by the appellant to the Deputy Inspector General of Police, Tanjavur Range by Na.Ka.No.D3/289/1998, dated 22.01.1998 and the same was accepted. As per the Tamil Nadu Government Servant Conduct Rules, 1973, the property acquired by the family members of the public servant, out of their own income need not be informed to the authorities. Despite the same, the appellant had informed to the Department which is motivated. From the will, it is seen that the house was under construction. Hence, the house was constructed by the appellant/public servant for which he could not properly give explanation. Hence it was added in the statement-II.
25.From the judgment of the lower Court for the immovable assets found in statement-II, the assets at the end of check period, Serial Nos.4, 7, 8, 9, 10, 11, 13, 14, 15, 18 & 19 are admitted by the appellant and Page 19 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 there is no dispute. The admitted value of assets is Rs.1,12,690/-. The Serial No.3 purchase of TATA Indica Car bearing registration No.TN 50 A 7887 for Rs.3,38,367/- has been deleted by accepting the defence version. The purchase of AKAI color T.V for Rs.27,990/- on 16.07.1988/Serial No.5 and purchase of BPL B/W T.V for Rs.3,250/-, Serial No.6 and purchase of pioneer VCD 2800 for Rs.11,000/-/Serial No.12 were added as assets of the appellant and the total value of Rs.42,240/- added with admitted expenses of Rs.1,12,690/-, totalling to Rs.1,54,930/-. The explanation given by the appellant for Serial No.16, purchase of 404 grams of gold jewels valued around Rs.1,61,600/-, was not accepted. This amount is added with the previous amount and the net value is Rs.3,16,530/-. The seizure of cash shown in serial No.17 is Rs.3,50,000/-, for Rs.1,50,000/-, the explanation was accepted and for Rs.2,00,000/-, the explanation was not accepted and it was added to assets. Hence, the amount of Rs.5,16,530/- for movable assets were taken as disproportionate assets.
26.The lower Court for the immovable assets with regard to Serial No.2 of Statement-II, purchase of wet land for Rs.81,079 by the wife of Page 20 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 the appellant at Kavanur Village on 26.07.1999, the trial Court considering the explanation of the appellant and taking into consideration of income received from milk vending business and agriculture income received by the appellant's wife, that property was deleted. Hence, the trial Court deleted Rs.81,079/- from the assets.
27.With regard to Serial No.1, the valuation of the two storied house constructed at Kavanur Village, the version of the prosecution is that the house was constructed during the year 1995-1996 and the value of the building was Rs.8,67,277/-. The version of the defence is that the construction was done during the year 1990-1992 and the value of building as per Ex.P8 is Rs.5,73,804/-. Adding the immovable assets value of Rs.5,73,804/- with movable assets of Rs.5,16,530/-, the disproportionate assets of the appellant is calculated as Rs.10,90,334/-.
28.Thus the trial Court found that Rs.10,90,334/- was disproportionate assets and the appellant was unable to give acceptable explanation for the said amount. Now, this Court has to consider the explanation of the appellant along with available material and evidence Page 21 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 whether the appellant had given satisfactory explanation for amount of Rs.10,90,334/-.
29.The contention of the learned counsel for the appellant is that the house was constructed by his mother-in-law Kanagarathinam, who purchased 18 cents of dry land in survey No.55-4B at Kavanur Village in the year 1987 and shown in Serial No.23 of statement-II. The same property is found in statement-I/assets at the beginning of the check period in Serial No.4. Hence, it is admitted the property/Serial No.I was purchased well before the check period. Now, the only dispute with regard to constructions put on it. The appellants mother-in-law was living with her daughter/wife of the appellant, which is admitted by DW4/A3 and PW34, the daughter and son of the said Kanagarathinam.
30.The will/Ex.D5 was executed during 1990 by the mother-in-law of the appellant in favour of her daughter/A3, which is not in dispute. The said Kanagarathinam passed away in the year 1996. From the will [Ex.D5] it is found that the house in S.No.55-4B at Kavanur Village was under construction, during 1990. The said Kanagarathinam mother-in- Page 22 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 law of the appellant was a person with means and resources. On inheritance of the property by his wife, the appellant duly intimated to the Deputy Inspector General of Police, Tanjuvur Range. The DIG of Police by proceedings in Na.Ka.No.D3/289/98 dated 22.01.1998/Ex.P17 granted permission for the same. PW9 in his evidence admitted the same and recorded in Service Register of the appellant/Ex.P16. Thus, the construction cost has to be deleted. On perusal of the evidence and materials, it is found that the appellant his wife were residing in the said house along with his mother-in-law Kanagarathinam. The search was conducted in the said house. The explanation of the appellant that his mother-in-law had incurred the expenditure and put up construction cannot be accepted for the reason that the will [Ex.D5], dated 16.08.1990. The inheritance of the property intimated to the office of the appellant in the year 1998. The appellant's mother-in-law having executed the will during 1990 bequeathed the property had no reason, to put up construction in the property thereafter. In view of the same, this Court finds it is the appellant who had constructed the house.
31.The inspection of the house was conducted by PW3 on Page 23 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 08.08.2001. The appellant was present along with him. PW3 inspected the houses at Kavanur Village and tiled house at Ammaiyappan Village, issued valuation reports Exs.P8 to P12. Exs.P8 and P9 pertains to valuation of house at Kavanur Village taking construction period 1989- 1992 and Exs.P10, P11 pertains to valuation of tiled house at Ammaiyappan Village. Ex.P12 is the second valuation report for the house at Kavanur Village taking the construction period during 1995- 1996.
32.PW3 admitted that he gave two reports Exs.P8 & P9 and Ex.P12 for the same house at Kavanur Village. The second report Ex.P12 was given based on the request of the Investigation Officer/PW42. It is the valuation Engineer, who has to visit the place, conduct inspection independently, fix the period of construction and value of the property. PW3 giving two valuation report for the same house on the request of investigating officer/PW42, cannot be accepted. The neutrality and independency of PW3 and his report becomes questionable. The trial Court took Exs.P8 and P9 and fixed the value of construction as Rs.5,73,804/-.
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33.Further PW3 in his evidence admitted that for each district the schedule of rates are fixed, no separate schedule of rates is available for village properties. He admitted that for the cost of construction in village, the rates are lesser than construction of house in towns and the difference would be between 10 to 15%. Likewise in the construction, if own timber and own labourers are used. Further 5% to be deducted. On the whole 20% of the construction value has to be reduced. He admitted that for the water and sewage connection 10% has to be deducted. Likewise the cost of the bore well was on higher side. He admitted for electricity connection he has not taken its value separately and had given 7 ½ % of the total value towards electrical expenses. From his evidence and on the admission of PW3/Valuation Engineer, the house at Kavanoor Village would have been constructed with a sum around Rs.3 lakhs. Further, it is a known fact that schedule of rates are fixed for construction of public buildings and public official residence in taking into consideration profit margin of contractors. This Court in various decisions has given rebate of 10% in cases of valuation fixed, adopting guideline values. Considering the above this Court is inclined to fix the Page 25 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 construction cost of the house at Rs.3 lakhs.
34.With regard to Rs.3.5 lakhs which was seized during the house search on 12.12.2001 through Ex.P19, the trial Court gave credit of Rs.1.5 lakhs on the evidence of PW19, the relative of DW3/Sammanthi of the appellant. PW12 and PW13 are the witnesses for house search and seizure. The trial Court gave credit of Rs.1.5 lakhs. It is admitted that DW3 is a person of Indian Origin settled in Seychelles doing business there, his daughter Kavitha was given in marriage to the appellant's son/A2. DW3 developed interest to construct a house in his native at Mudikondan Village. DW3 was having NRI bank account in the Bank of Baroda. PW37 the Manager of the bank, confirms bank account No.3614 of DW3 and produced Ex.P41, the letter showing DW3 granted loan of Rs.10 lakhs against security of NR NIR receipt on 03.10.2000. DW3 produced pass book Ex.D3 as well as his passport Ex.D4. From Ex.D3 it is seen that Rs.11,73,859/- was credited on 07.4.2001 and from which Rs.9,75,000/- had been withdrawn through his relative K.Jothi. DW3 withdrew Rs.2,00,000/- on 01.09.2001 through self cheque and Rs.1,54,227/- by FDR proceeds were credited to his account out of which on 05.12.2001 through PW19 his relative Santhi, Rs.1,54,000/- was Page 26 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 withdrawn.
35.PW19 stated that on 01.09.2001 her uncle DW3 gave Rs.2 lakhs and she withdrew Rs.1,54,000/- on 05.12.2001. PW19 handed over Rs.3,50,000/- to the appellant. DW3 confirms and gives reason for giving cash. During 2001 DW3 had some health issues, hence he handed cash of Rs.2,00,000/- and the amount of Rs.1,54,000/- sent by draft to PW19. Both put together PW19 had handed over Rs.3,50,000/- to the appellant. The trial Court accepted handing over of Rs.1,50,000/-, had negatived the claim of the appellant for Rs.2,00,000/- finding small discrepancy in the evidence of DW3 and PW19 and for non examination of the said Jothi through whom Rs.9,75,000/- was withdrawn. The minor discrepancies are natural correlation.
36.PW42, the Investigating officer admitted that he examined DW3 during the investigation. DW3 stated his intention to construct house in his native at Mudikondan and the construction was to be done by the appellant. DW3 had sent money of Rs.3.5 lakhs through PW19 and also stated during his examination. The handing over of the money and the house search was proximate.
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37.From the evidence of PW19, DW3 and PW37, there is nothing to show that DW3, is a person of no means and the trial Court having accepted receipt of Rs.1.5 lakhs, has no reason to reject the receipt of other amount of Rs.2 lakhs. This Court finds from the evidence of PW19, DW3, PW37. The appellant's explanation can be accepted. In view of the same, the amount of Rs.3.5 lakhs seized from the residence of the appellant on 12.12.2001 is the amount of DW3 and hence it has to be deleted from statement-II. Further, the check period and charge is from 01.11.1988 to 28.10.2001, the seizure had taken place on 12.12.2001.
38.With regard to possession of 404 grams of gold jewels valued around Rs.1,61,600/-. The appellant has given explanation that during his marriage 160 grams of gold that is 20 sovereign of gold jewels were presented to his wife. The appellant who examined himself as DW6 as well as DW4 his wife confirm the same in their evidence. Likewise the appellant's son, who was examined as DW5 stated about receiving of 112 grams of gold as present, his wife presented with 60 sovereigns of gold Page 28 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 and DW5 was presented with 10 sovereigns, which is corroborated by DW3. The appellant's daughter examined as DW2, was presented with 20 sovereigns of gold jewels corroborated by PW32, her husband, DW1, father-in-law and PW33, her grand father. On the date of the house search the appellant was convalescing from piles operation.
39.DW2 has stated that she was residing in an isolated place and daily she used to attend the school of her children twice and during that period she used to lock the house and normally her husband would return late in the evening from office. Hence for safety she kept the jewels in her parents house. DW4, the wife of the appellant corroborates the same. Hence the explanation of the appellant gains credence and acceptable.
40.From the evidence of PW25 and PW30 of ARC Jeweleries, it is seen that the appellant and his son handed over old jewels and converted it as new jewels on the design of their choice. Hence it was exchanged jewels. From the evidence of PW25 and PW30 and from Exs.P33 and P34, it cannot be said that the appellant purchased new jewels. The finding of the lower Court that jewels of A2, and the jewels of appellant's Page 29 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 daughter could not have been exchanged is without any proper reason. The exchange of jewels are normally done for various reasons, if design is not to their liking or to get new pattern jewels. The evidence of PW25 and PW30 is certain that the old jewels were brought. It is not the case that the appellant's son and daughter were not having any jewels. Added to that from Ex.P19, the house search mahazar, there is no mention about the mode and the year of purchase/acquisition. In such circumstances, considering the jewels as new jewels and fixing the value at Rs.400/-, as per Ex.P38 is not proper. In view of the above, this Court finds the explanation given by the appellant acceptable. Hence the amount of Rs.1,61,600/- has to be deleted.
41.The income derived by the appellant's wife through milk vending business was accepted by the trial Court and gave a finding that the purchase of item No.2 in statement-II wet land for Rs.81,079/- to be deleted in lieu of milk vending income. The appellant's claim is that his wife earned Rs.1,10,000/-, the milk supply book though seized, was withheld by the prosecution. Further, the agricultural land holding and income are stated by PW24, PW27 and PW31, which were not Page 30 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 considered in right perspective.
42.DW5 is the son of the appellant, in his evidence stated that he joined as a trainee in Chennai during the year 1995 and from then on, he is regularly employed, he had produced Exs.D11 and D12. Ex.D11 his appointment as Programme Trainee in Vishal Camcard on 10.05.1995 and DW12 is the appointment order as software professional by Olympic Software System on 02.09.1996. Thus from the year 1995 DW5 a software Technocrat was having income. During the year 2000 with the hope of getting employment in Singapore. He went there on the invitation of his friend Saravanan. Since he could not get permanent citizenship he returned back. On his return, his friend Saravanan presented a pioneer VCD, the receipt and passport particulars had been marked as Exs.D13 & D14. The trial Court finding that DW5/A2 was student during the major part of check period is not correct.
43.Thus DW5/A2 started earning from the year 1995 had resources with him. The flight charges to Singapore was managed by the appellant's son and not by the appellant. The miscellaneous expenses for the car shown in statement-IV serial Nos.4, 5, 6, 7, 8 are shown to be Page 31 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 incurred by the appellant is without any material. The trial Court accepted the gift of TATA indigo car and deleted Rs.3,38,367/- from the assets, the miscellaneous expenditure incurred in purchase of car, serial No.4 to 8 in statement-IV of Rs.19,002/- are to be detected. Likewise the flight charge expenditure of Rs.14,500/- shown as serial No.16 is to be deleted.
44.The evidence of PW32, PW33, DW1, DW2 and DW3 are in conformity to the explanation of the appellant, the marriage expenses in statement-IV, serial No.2, which is shown as Rs.57,000/- has to be reduced to Rs.25,000/-. In view of the same this Court deducts Rs.32,000/-. Likewise for marriage expense for his son in Serial No.3, which is shown as Rs.32,000/- is reduced to Rs.25,000/-, and the expense is reduced by Rs.7,000/-. The payment of house tax in item Nos.11 and 12 for Ammaiyappan Village and Mudikondan Village Rs.660 and Rs.800/- are to be deducted, since the property belongs to his mother-in- law, who was receiving rental income and share of agricultural income from her son/PW34. The land tax paid by the appellant's wife shown in item Nos.13 and 14 for Rs.345/- and Rs.378/- are to be deducted. The Page 32 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 lower Court finding that the appellant's wife was engaged in milk vending business and was also receiving agricultural income, these expenses cannot be added as expenses of the appellant. Hence Rs.41,183/-, has to deducted from Rs.5,21,732/-. Hence the total expenditure would be only Rs.4,80,549/-.
45.In statement-III, the income earned by the appellant during the check period in Shri Ram Chits/Serial No.5 is Rs.23,610/-. From the evidence of PW18, PW22 and Exs.P25, P26, P27, it is seen that apart from appellant, the wife of the appellant and his son are subscribers to Shri Ram Chits. The appellant received Rs.82,609/- on 06.03.1999, his son received Rs.1,66,165/- on 31.05.2000 and his wife received Rs.1,67,662/-.
46.Thus taking into account from the evidence available the appellant's wife was having agriculture income, income from milk vending and receiving rents after her mother demise, further she was subscriber to Shri Ram Chits, in view of the same, on a conservative estimate this Court finds that the wife of the appellant had income of Page 33 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 Rs.1,10,000/- through milk vending and agriculture income of Rs.52,000/-, rental income of Rs.22,000/- and the amount of Rs.1,67,662/- received from Shri Ram Chits, which comes Rs.3,51,662/-. Taking into consideration, the trial Court had already given credit of Rs.81,079/- deleted assets in statement-II of Serial No.2, the value of Rs.81,079/-. Hence, the income of the appellant's wife is Rs.2,70,583/-. No properties or assets were acquired by the appellant's wife during the check period. Hence the income of Rs.2,70,583/-, has to be included. There are various documents which were seized during house search/Ex.P19, which were withheld. The withheld documents are Milk supply books in Serial Nos.41 & 42 and Serial No.43, Moi book containing 173 pages. This Moi amount would be an added income.
47.The learned counsel for the appellant relied upon the citations for the principle that a possession assets is not an offence, but it is the failure to satisfactory account for such property, that makes the possession, objectionable and offending the law. Further the explanation offered by the public servant to be sufficient if it appears to be plausible and justifiable. In view of the appellant's wife and son are acquitted from Page 34 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 the case, finding no abetment, the appellant cannot be prosecuted. The accused had examined themselves as defence witnesses, their evidence to be considered on par with the evidence of the prosecution witnesses. All that he needs to do is to bring out a preponderance of probability. The evidence adduced by the appellant is sufficient to create a doubt as to whether the appellant was in possession of disproportionate assets. Further it is sufficient for the accused to probablize his case and he is not bound to prove the case beyond all reasonable doubt.
48.The trial Court had found the appellant had not given acceptable explanation for the assets to the tune of Rs.10,90,334/-. From the above deliberations, the income, expenditure and savings are calculated as follows:-
(i)Statement-II in Serial No.I, the trial Court finding of valuation of construction is Rs.5,73,804/-. From the evidence and materials, this Court comes to conclusion that the valuation of construction would be only Rs.3,00,000/-. Hence, the amount of Rs.2,73,804/-, is deducted.Page 35 of 40
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(ii)The cost of purchase of Serial No.5 AKAI colour TV, Serial No.6 BPL B/W TV and Serial No.12 a pioneer VCD, to the tune of Rs.42,240/- are deleted.
(iii)The purchase of 404 grams of gold jewels in Serial No.16 in Statement-II, to the tune of Rs.1,61,600/- are deleted.
(iv)The cash of Rs.3,50,000/- seized during the house search has been included in Serial No.17 in statement-II. The appellant's explanation accepted by the trial Court for Rs.1,50,000/- and the amount of Rs.2,00,000/- included as assets. On consideration of materials and explanation, this Court finds that Rs.3,50,000/- belongs to DW3, Durairaj. Hence, the amount of Rs.2,00,000/- is deducted.
(v)In statement-III, the total income of the appellant's wife from milk vending, agriculture business and Shri Ram Chits are included. On the materials available, this Court finds that the appellant's wife had income of Rs.2,70,583/- to be included as additional income. Page 36 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006
(vi)In Statement-IV, expenses in Serial Nos.4, 5, 6, 7, 8 & 16, the amount of Rs.33,502/- are to be deducted. For Serial Nos.2, 3, 11, 12, 13 & 14, the amount of Rs.41,483/- to the reduced.
49.On aforesaid calculation, it is seen that the appellant's explanation is acceptable to the tune of Rs.10,22,912/- which was available with the appellant. During the check period, the appellant possessed total assets of Rs.10,90,334/-. Thus, the assets possessed by the appellant is calculated Rs.10,90,334 – Rs.10,22,912 = Rs.67,422/-, which is in excess of the surplus income available to him. Since the excess is comparatively small and which is less than ten percent of total income which is permissible. Further considering the check period to be more than 12 years, quite a long period, it is possible small over- estimation of expenditure, escape of income would have multiplied. The explanation of the appellant is acceptable.
50.The Hon'ble Apex Court of India in the case of “Krishnanand Versus the State of Madhya Pradesh reported in AIR 1977 SC 796”, has Page 37 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 held as follows:-
“33.It will, therefore, be seen that as against an aggregate surplus income of Rs 44,383.59 which was available to the appellant during the period in question, the appellant possessed total assets worth Rs 55,732.25. The assets possessed by the appellant were thus in excess of the surplus income available to him, but since the excess is comparatively small — it is less than ten per cent of the total income of Rs 1,27,715.43 — we do not think it would be right to hold that the assets found in the possession of the appellant were disproportionate to his known sources of income so as to justify the raising of the presumption under sub-section (3) of Section 5. We are of the view that, on the facts of the present case, the High Court as well as the Special Judge were in error in raising the presumption contained in sub-section (3) of Section 5 and convicting the appellant on the basis of such presumption.
34.We accordingly allow the appeal, set aside the order of conviction and sentence recorded against the appellant and acquit him of the offences charged against him. Since the appellant is on bail, the bail bonds will stand discharged.” Page 38 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006
51.In the light of the above said judgment and the excess is of Rs.67,422/- comparatively small, which is less than ten percent (Rs.85,243/-) of the total income of Rs.8,52,433/-, it would not be right to hold that the assets found in the possession of the appellant are disproportionate to his known sources of income.
52.In the result, the appeal is allowed, the judgment of conviction and sentence passed against the appellant are set-aside. The appellant is acquitted from the offences charges against him. The bail bond, if any, executed stands cancelled. Fine amount, if any, paid shall be refunded. The sum of Rs.3,50,000/- to be returned to DW3, Durairaj Pillai.
07.07.2020 Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No vv2 Page 39 of 40 http://www.judis.nic.in Crl.A.No.338 of 2006 M.NIRMAL KUMAR, J.
vv2 To
1.The Chief Judicial Magistrate Court, Nagapattinam.
2.The Deputy Superintendent of Police, Vigilance and Anti Corruption, Chennai City-I, Chennai.
3.The Public Prosecutor, High Court, Madras.
PRE-DELIVERY JUDGEMENT IN Crl.A.No.338 of 2006 07.07.2020 Page 40 of 40 http://www.judis.nic.in