Kerala High Court
G. Lakshmanan vs State Of Kerala on 29 February, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 29TH DAY OF FEBRUARY 2012/10TH PHALGUNA 1933
CRL.A.No. 1230 of 2001 (D)
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CC.29/1999 of ENQUIRY COMR.& SPL.JUDGE,KZD.
APPELLANT(S):
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G. LAKSHMANAN, S/O. GOPALAKRISHNA NAIDU,
PARASSERY HOUSE, 'CHAITHRAM',
SEKHAREEPURAM, PALGHAT.
BY ADVS.SRI.RENJITH THAMPAN (SR.)
SRI.A.S.RAJENDRAN NAIR
RESPONDENT(S):
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STATE OF KERALA,
REP. BY SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI CORRUPTION BUREAU,
SPECIAL CELL, KOZHIKODE.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
29-02-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
JJJ
N.K. BALAKRISHNAN, J.
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Crl. A. No: 1230 OF 2001
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Dated this the 29th day of February, 2012
J U D G M E N T
The appellant, who was the Excise Circle Inspector in the Excise Department, was convicted by the Enquiry Commissioner and Special Judge, Kozhikode, for offences punishable under sections 5(1)(e) r/w 5(2) of the Prevention of Corruption Act, 1947 and 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988 and he was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default, he was sentenced to undergo simple imprisonment for one year. This appeal is directed against the said conviction and sentence.
2. The appellant had worked as Excise Inspector and Excise Circle Inspector in the Excise Circle Office, Palakkad, and at various other places including Sulthan Bathery, Chittur, Kozhikode and Alathur. As there was allegation Crl. A. No: 1230/2001 -2- that the appellant was in possession of assets disproportionate to his known sources of income, PW45, the Superintendent of Police, Vigilance and Anti Corruption Bureau, Special Cell, Kozhikode, conducted preliminary enquiry and based on the materials collected, Exhibit P47, F.I.R. was registered. 1.8.1985 to 3.8.1995 was taken as the check period for the determination of the assets of the accused.
3. At the beginning of the check period, as revealed from Exhibit P66 statement, the total assets possessed were Rs.63,348.45, 25 sovereigns of gold and 57 cents of land. It was revealed that during the check period he had purchased properties in his name and in his wife's name to the value of Rs.1,29,282/-. He had also, during that period, put up a two storied building - 'Chaitram'. At the end of the check period, on 3.8.1995, as revealed from Exhibit P67 statement, his assets were found to be Rs.7,30,277/-, 150.200 grams of gold and 57 cents of land. His income Crl. A. No: 1230/2001 -3- during the check period was only Rs.4,01,973/- as shown in Exhibit P68 statement.
4. It was also found that during the check period the expenditure incurred by him was Rs.2,88,134.50 and 23 sovereigns of gold, as mentioned in Exhibit P69 statement. Thus, according to the prosecution, the assets acquired during the check period was Rs.6,49,928.55, as noted in Exhibit P70 statement, which was found to be 133% in excess of his known sources of income, which was mentioned in Exhibit P71 statement. Thus charge was laid against the appellant for the offences as mentioned above.
5. PWs 1 to 50 were examined and Exhibits P1 to P71 were marked. On behalf of the appellant DWs 1 to 6 were examined and Exhibits D1 to D11 were marked. Exhibits X1 and X1(a) were also marked.
6. After a detailed consideration of the entire evidence the court below found that the appellant had in his possession, during the check period disproportionate assets Crl. A. No: 1230/2001 -4- to the tune of Rs.3,55,912.55, which was found to be 83.37% over and above his known sources of income. Since the appellant could not satisfactorily account for possession of the disproportionate assets, he was found guilty, convicted and sentenced as mentioned above.
7. The appellant contends that the learned Special Judge did not consider the case advanced by the accused in the correct perspective. Some of the items which were shown to have been acquired during the check period were actually the assets of the accused acquired prior to 1.8.1985 and as such the Court below should not have reckoned those items as the assets acquired during the check period. It is further contended that the learned Special Judge has also failed to add the income derived by DW6, wife of the accused, from her agricultural properties towards the source of income of his family. Similarly, the Court below also should have found that the timber logs seen at the time of search conducted in the house of the accused were, in fact, Crl. A. No: 1230/2001 -5- the timber logs obtained by cutting and removing the trees situated in the property held by the accused. The sofa set found in the house of the appellant, at the time of conducting search, was actually gifted to the appellant at the time of the house warming ceremony, in respect of which the donor's daughter had given convincing evidence but that was not acted upon by the Court below without assigning any valid reason.
8. The points for consideration are:
(i) whether the prosecution could prove that the appellant or any other person on his behalf, during the period of his office as Excise Inspector and Excise Circle Inspector, during the check period from 1.8.1985 to 3.8.1995 was in possession of assets disproportionate to his known sources of income?
(ii) whether the conviction and sentence passed against the appellant are unsustainable on any of the grounds urged by the appellant?
Crl. A. No: 1230/2001 -6- Point Nos:1 and 2
9. It was vehemently argued by the learned counsel for the appellant that the check period was arbitrarily fixed by the detecting/investigating officer in such a way as to exclude certain assets held by the appellant prior to the check period. I find no merit in that contention. The check period, which has a span of ten years, was taken to assess the assets acquired by the public servant during that period and to find whether the total assets held by the appellant at the end of the check period was disproportionate to his known sources of income.
10. It was argued at length that the U.T.I. Certificates the total amount of which was Rs.8000/- as evidenced by Exhibit P50 to P53, were actually the certificates got renewed during the check period. If actually, there were U.T.I. Certificates in the name of the accused or his wife or children prior to/as on 1.8.1985, there was no difficulty for the accused to prove that aspect by producing such Crl. A. No: 1230/2001 -7- documents or examining such persons to prove that aspect. As per the certificates it could be seen that those certificates were obtained during the check period. There was nothing to show that it was only a renewal. Similar contention was advanced regarding the amounts which were available in the account of himself and his wife, Radha.
11. Though the learned counsel for the accused would submit that the check period of 10 years was arbitrarily fixed by the investigating officer, the court below could not find any such arbitrariness in choosing the check period of 10 years. In the facts and circumstances of this case, the check period of 10 years taken by the prosecution cannot be faulted with. It was pointed out by the learned counsel for the accused that if the check period had its commencement from an anterior point of time, then the assets of the accused could have been reckoned more than what was assessed by the investigating agency. There is no merit in that contention as well. If the accused had in his possession Crl. A. No: 1230/2001 -8- or in the possession of his wife any other assets which were not duly taken note of by the prosecution, that being a fact which is/was in the exclusive knowledge or special knowledge of the accused, could have certainly been produced before the court to show that such an item of evidence showing the pre-existing assets of the accused was omitted to be considered. There was no such material. Therefore, I find no merit in that limb of the argument.
12. PW.7, the Manager of the Federal Bank, Palakkad stated that S.B. Account No.2873 was of the accused. Ext.P14 is the extract of the ledger showing the account pertaining to that account number for the period from October 1985 to October 1995. It was stated by him that as per the closing balance, the amount available was only Rs.4858.45. There was another account No.4022 standing in the name of Radha, the wife of the accused. The learned counsel for the accused would submit that it was admitted by PW.7 that as on 07.05.1985, there was a sum of Crl. A. No: 1230/2001 -9- Rs.45,000/- in her account. Ext.P15 is the extract of that ledger. Ext.P15 shows that Rs.25,000/- was withdrawn on 26.06.1985 and Rs.15,000/- was withdrawn on 26.07.1985. Those withdrawals were prior to the commencement of the check period. It was stated that as on 03.08.1995, the balance amount in that account was only Rs.1525.55. It was pointed out by the defence that the fact that the wife of the accused was having in her account Rs.45,000/- prior to the check period was not considered by the prosecution or by the court. But that contention is found to be devoid of any merit, since prior to the check period itself that amount was withdrawn by the wife of the accused. There is no acceptable evidence to show that with the amount so withdrawn anything was purchased and whether that was omitted to be taken into account as the asset of the accused at the beginning of the check period.
13. The decision of the apex court in State of Maharashtra Vs. Wasudeo Ramachandra Kaidalwar Crl. A. No: 1230/2001 -10- (AIR 1981 Supreme Court 1186) has been relied on in this connection where it was held that the first part of Sec.5(1)(e) casts burden on the prosecution and the second part casts burden on the accused. It was further held that the words "for which the public servant is unable to satisfactorily account", do imply that the burden is on such public servant to account for the source for the acquisition of disproportionate assets. Therefore, the plea that the public servant, charged for having disproportionate assets in his possession, for which he could not satisfactorily account, cannot be convicted of an offence under Sec. 5(2) r/w Sec.5 (1) (e) unless the prosecution disproves all possible sources cannot be countenanced. This decision was relied upon by the learned counsel for the appellant to strengthen his submission that the burden cast on the accused is not like the one cast on the prosecution to prove its case beyond reasonable doubt and that the accused can discharge his burden by preponderance of probability. The learned Crl. A. No: 1230/2001 -11- counsel for the accused would submit that the evidence available in this case is sufficient to hold that the preponderance of probability is in favour of the accused.
14. The decision in M. Krishna Reddy Vs. State Deputy Superintendent of Police, Hyderabad (AIR 1993 Supreme Court 313) has also been relied upon by the learned counsel for the appellant. In that case the accused had a blemishless service and there was no evidence to show that at any point of time there was any adverse remark pointing to the alleged corrupt practice. But the apex court took note of the fact that the accused therein had taken action against unauthorised builders and encroachers who were powerful persons. Hence it was held that the criminality u/s 5(1)(e) of the Act on the accused who had completed unblemished service for a period of 25 years cannot be sustained. Here, there is no evidence to hold that the accused was charged for the offence due to the influence of or pressure exerted by any such powerful Crl. A. No: 1230/2001 -12- group.
15. The decision in State of Maharashtra Vs. Pollonji Darabshaw Daruwalla (AIR 1988 Supreme Court
88) has also been relied upon in this case. In that case, it was held thus:
"Once the prosecution establishes the essential ingredients of the offence of criminal misconduct by providing, by the standard of criminal evidence, that the public servant is or was at any time during the period of his office, in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution, the prosecution discharges its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence. It then becomes necessary for the public servant to satisfactorily account for the possession of such properties and pecuniary resources. It is erroneous to predicate that the prosecution should also disprove the existence of the possible sources of income of the public servant".
16. The decision in Trilok Chand Vs. State of Delhi (Sarkaria. J.) A.I.R. 1977 Supreme Court 669 is also on the very same point as to the nature of the evidence to be Crl. A. No: 1230/2001 -13- adduced by the accused. It was held that the accused may rebut the presumption by showing mere preponderance of probability in his favour. It is not necessary for him to establish his case beyond a reasonable doubt. The crucial question here is whether the accused could prove by the yardstick of preponderance of probabilities that the assets possessed by him were through known source of income.
17. Ext.P66 is the detailed statement prepared by the prosecution which shows the assets at the beginning of the check period. The accused had at the beginning 25 sovereigns of gold ad 57 cents of land. The amount available as revealed from his S.B. Account - Ext.P15 was Rs.51260.95. As per Ext.P14, the amount at the beginning of the check period, which stood in the name of the accused's wife was Rs.5187.50 . Cost of furniture found in the house of the accused was Rs.6,900/-.
Crl. A. No: 1230/2001 -14-
18. The accused has taken exception to the value of the furniture found in his house as Rs.6900/-. According to the accused the other furniture found at the time of conducting search by the Vigilance Police Officer, were actually available even prior to the check period and as such that amount also should have been shown in the statement of assets of the accused at the commencement of the check period. The property measuring 57 cents which the accused was having at the beginning of the check period continued to be there till the end of the check period and as such that property was not separately valued. According to the prosecution, besides the landed property, the assets of the accused at the beginning of the check period was only Rs.63,348/- and 27 sovereigns of gold.
19. Ext.P67 is the statement prepared by the prosecution showing the assets at the closing of the check period. It is noted that during the check period as per Ext.P7 to P10 four items of properties measuring 5 < cents, Crl. A. No: 1230/2001 -15- another 5 < cents, 13 cents and also 9 = cents were purchased by the accused. The total consideration for purchase of these four items of properties was Rs.117395/- including the value of the stamp papers, registration charges and other expenses, the total amount spent was shown as Rs.1,29,285.50. The learned Public Prosecutor would submit that a sum of Rs.117395/-, the amount shown in the sale deeds would normally be far less than the actual consideration paid by the purchaser to the vendor. The learned Public Prosecutor further submits that it is notorious that in order to avoid payment of stamp duty and the registration fee, it is usual to show less amount than the actual consideration. Therefore, according to the learned Public Prosecutor, the amount actually spent for the purchase of these four items of properties would be far in excess of the amount actually reckoned by the prosecution to calculate the acquisition made by the accused during the check period.
Crl. A. No: 1230/2001 -16-
20. The learned counsel for the accused has relied upon the decision of Andhra Pradesh Highcourt in Sri Ramalu Vs. State of A.P. (2003 CRI. L.J. 2956) in support of his submission that when the prosecution wants to contend that the motor cycle referred to by PW.9 was purchased by the accused during the check period, there should have been legal and convincing evidence to prove the same and that proof of ownership of such an item of property cannot be merely assumed. PW.19 was examined by the prosecution to state that he had sold the motor cycle bearing No.TD1 - 9252 (which was of 1986 model) to the accused in the year 1987 for a sum of Rs.14000/-. It was stated by PW.19 that the amount was paid to him by the accused in cash. The learned counsel for the accused submits that the Registration Certificate or any other document pertaining to the vehicle was not produced by the prosecution to show that PW.9 was the owner of that vehicle and it was sold to the accused. The investigating officer did Crl. A. No: 1230/2001 -17- not venture to get the R.C. particulars of that vehicle from the concerned R.T.O. Office. According to PW.19, he had purchased that vehicle in the year 1986 from one Natesan of Pollachi. PW.9 has admitted that he did not give the transfer letter so as to effect the transfer of the R.C. in the name of the accused but he says that after the vehicle and R.C. were handed over to the accused on getting receipt of Rs.14,000/-, though the accused agreed to approach him (PW.9) the accused did not approach him. Though questions were put to PW.9 regarding so many aspects, no question was put to him denying the factum of sale of vehicle in his favour or the sale price spoken to by PW.9. There was no reason for PW.9 to give a false statement, for, PW.9 was not having any animosity towards the accused. PW.9 has asserted that the Investigating officer was not known to him earlier. It is true that the Investigating Officer should have collected the R.C. particulars of that two wheeler and could have cited the R.T.O. officials as a Crl. A. No: 1230/2001 -18- witness. But the evidence given by PW.9 was accepted by the learned trial Judge since his evidence remained un- shattered during cross-examination. On a further scrutiny of his evidence, I could not find anything to discard his evidence.
21. Ext.P14 is the search list conducted by P.W.47, the investigating officer. Ext.P49 is the seizure mahazar as per which 13 items of documents were seized. Out of the same, items 1 to 5 are the title deeds of the properties obtained in the name of the accused and his wife. Those documents were marked as Exts.P6, P8, P10, P7 and P9 respectively. The other 8 items are the U.T.I.Certificates which have been marked as Exts.P50 to P53 series. The total amount covered by the U.T.I.Certificates is Rs.8,000/-. As could be seen from the U.T.I.Certificates, all those certificates were obtained in the names of the three daughters of the accused in the year 1992, i.e., during the check period. The originals of item numbers 6, 7, 10 and 12 Crl. A. No: 1230/2001 -19- were seized by P.W.48 as per Ext.P56 mahazar. There were only 8 UTI certificates of a total value of Rs.8000/-. As said earlier there is nothing on record to show that the accused was having UTI certificates in his possession prior to 1.8.1985 so as to contend that the aforesaid certificates were only renewed during the check period.
22. P.W.42 was the Deputy Ranger of Mayannur Forest Station. The evidence given by him would show that on 24.10.1998 he inspected the property shown therein as pointed out to him and other Forest Officials by the Village Officer, Thiruvilluamala. The evidence would show that the accused was also present at the time of inspection. That fact was not challenged by the defence. Ext.P64 is the mahazar prepared for the inspection conducted by him. The inspection was conducted for the purpose of ascertaining whether there were stumps of timber trees having been cut and removed from that property. The contention raised by the defence was that door frames, window frames and Crl. A. No: 1230/2001 -20- furniture which were found in the house 'Chaithram' were made using the timber obtained by cutting trees which existed in the property mentioned above.
23. The property mentioned in Ext.P64 is the property measuring 57 cents comprised in survey No.1020/2 situated at Pattiparambu of Thiruvilluamala village. That ,in fact, is the property of the accused, is not in dispute. Ext.P64 would show that the brother and brother-in-law of the accused were also present at the time of inspection. P.W.49 has stated that though notice was given to the accused to be present there, he did not turn up. However, at the time of inspection P.W.42 and P.W.49 and also the brother-in-law of the accused were present as could be seen from Ext.P64. It could not be assailed at all.
24. It is also contended by the prosecution that no forest pass was issued to the accused for transporting timber/wooden logs. It was so stated by P.W42 also. That is not disputed by the accused also. But the learned counsel Crl. A. No: 1230/2001 -21- for the accused would submit that even if it is accepted that the wooden logs were transported without obtaining permission from the forest department and even if transportation of wooden logs without getting pass may amount to violation of the Transit Rules, it cannot be said that there was no cutting and removal of the timber trees. True, if there is evidence worthy of credence that the timber was obtained by cutting trees from his own property, then it could have been used as a piece of evidence in support of the defence plea. But the furniture mentioned in the search list were made of teak, jack fruit and rose wood, the stumps of which were not seen in that property. Hence the aforesaid argument advanced by the learned defence counsel cannot gain ground at all.
25. It was stated by P.W.42, that there were no stumps of teak, rosewood or jack fruit tree in the said property. That means, there was no evidence to show that such trees were cut and removed from that property. The Crl. A. No: 1230/2001 -22- evidence given by PW42 was supported by PW49 the Inspector attached to the Vigilance Cell. But it was pointed out that in the mahazar it was noted that three other stumps were seen. It was contended by the defence that PW42 and PW49 could not definitely say whether the stumps were of teak, rosewood or jack fruit. It is not so. The evidence given by PW42 that there were no stumps of teak, rosewood or jack fruit tree was not challenged at all by the defence. Therefore, the prosecution would contend that the defence set up by the accused that for making door frames, window frames and furniture, the timber cut and removed from the property mentioned in Ext.P64 were used cannot be sustained.
26. D.W.3 is the cousin of the accused. She was examined to prove that the housewarming ceremony of the newly constructed house 'Chaithram' was in the year 1991 and that on the previous day of the housewarming, a sofa set was purchased by she and her father for a sum of Crl. A. No: 1230/2001 -23- Rs.6000/- and it was given as gift to the accused. According to her, two single chairs and sofa set were purchased for Rs.6000/- and those articles were in the house even when she was examined in court in 1999. The defence wanted to rely upon this evidence to prove that from the value of the furniture shown in the search list prepared by PW47, the value of the aforesaid sofa set has to be deducted. DW3 says that it was gifted by her and her father. The prosecution disputes that contention. It is contended by the prosecution that there is absolutely no evidence to show that the sofa set was purchased by DW3 or her father in 1991 as spoken to by her. Admittedly, she had gone to the house of the accused on the day previous to her examination in court and she had discussed with the accused as to the facts to be stated in court. Therefore, the learned Public Prosecutor would submit that she was only made to say so by the accused taking advantage of the fact that she is the cousin of the accused and as such the Court Crl. A. No: 1230/2001 -24- should not be persuaded by that interested version.
27. It is also pointed out by the learned Public Prosecutor that the evidence given by D.W.6, the wife of the accused is contradictory to the evidence given by D.W.3. According to D.W.6, the entire furniture seen in the house were made by the Carpenters making use of the timber supplied by the accused. If so, according to the Public Prosecutor, the evidence given by D.W.3 that the sofa set and the chairs were purchased and gifted by her, cannot be accepted.
28. PW19, the Agricultural Field Officer, working under Palakkad Municipality had inspected the residential compound of the appellant. Exhibit P27 is the statement given by him pertaining to the yield and income that could be obtained from that property. It was stated by him that there were 12 coconut trees, 3 mango trees and 3 jack fruit trees in that property. The total income from that property for 10 years, the check period, was assessed by him at Crl. A. No: 1230/2001 -25- Rs.43,332.50. But during cross-examination he has stated that there were 15 coconut trees. The contention that he had counted the entire coconuts and tender coconuts and that there were 2700 in total in one tree was seen to be factually incorrect. It seems the number could be only 270. Not only that, 1/3rd has to be deducted towards droppings and nearly 1/3rd has to be deducted towards agricultural expenses.
29. The learned Public Prosecutor submits that the amount of plucking expense also has to be deducted. The coconuts used to be plucked only once in two months or once in 45 days. It was also stated that from the three mango trees a total of 60 kilograms of mango could be obtained. The inflated claim of income that could be derived from the trees based on the statement of PW19 cannot help the appellant to contend that the appellant was getting Rs.32,400/- per year from that very small extent of land. If he was getting that much income he was liable to include Crl. A. No: 1230/2001 -26- that income in his tax statement. Appellant had no such case.
30. From the evidence given by PW19, it could be found that there could be a maximum of only eight cropping with intervals of 45 days. The statement given by PW19 would show that in one bunch there were 15 coconuts. Therefore, even if two bunches could be dropped in one cropping the total annual yield from one tree would be only 240 nuts as found by the Court below. Therefore, it is not open to the appellant to contend that from one coconut tree 2700 nuts could be obtained. Since there is no other evidence, the yield assessed by PW19, as noted in Exhibit P17 has to be accepted as correct.
31. The learned counsel for the appellant has also submitted that the court below was not justified in ignoring the case put forward by the appellant that it was possible for him to obtain Rs.1,23,000/- from his property measuring 57 cents comprised in Survey No:1020/2 of Thiruvillwamala Crl. A. No: 1230/2001 -27- Village. The evidence given by PW9, the Agricultural Officer, has been relied upon by the prosecution to contend that the said property was lying as a barren land. PW9 had reported so, based on his inspection dated 5.5.1998. He had reported that fact to the Principal Agricultural Officer, Trichur. That report was marked as Exhibit P28.
32. The prosecution has also relied upon Exhibit P34 which was the report prepared by PW30, the Village Officer of Thiruvillwamala Village, who claimed to have inspected the property in October, 1995. According to him there were a few yielding trees from which the appellant could get Rs.400/- per year. That was not seriously disputed. The statement given by PW30 shows that when he inspected the property, for the purpose of submitting Exhibit P34 report, he could see only one 'palm tree' (Karimbana) and five other non yielding trees called 'Ilavu'. No other valuable trees were found. Further it was stated by him that the annual income which could be derived from that property could be Crl. A. No: 1230/2001 -28- only Rs.400/-. Though, the total income for ten years, at that rate, could only be Rs.4,000/-, the prosecution has actually assessed the income at Rs.5,000/-. Hence, it was accepted by the trial court also.
33. The court below accepted the case of the prosecution that the appellant was getting rent in respect of 'Sandeep Cottage' and also one arrack shop and a toddy shop. The learned Public Prosecutor submits that the appellant, being the officer working in the Excise Department, was not expected to lease out buildings for the conduct of arrack and toddy business. What ever that be, the fact remains that one small building was rented out for running arrack shop and in another building, toddy shop was being run. Besides, the building 'Sandeep Cottage' was also rented out. Since the building 'Sandeep Cottage' was let out only in April, 1994 and was in the possession of the tenant till July, 1995, the total rent was calculated at Rs.15,100/-. Rs.10,000/- was obtained as advance from the tenant who Crl. A. No: 1230/2001 -29- was conducting toddy shop. Towards the rent of the building which was occupied by the toddy shop from April, 1994 to July, 1995, the total rent income was assessed at Rs.8,000/- and Rs.10,000/- was received as advance from that tenant. Towards rent, from the tenant who was conducting arrack shop also, the appellant obtained Rs.12,000/- as total rent for the period from April, 1994 to July, 1995. From that tenant also Rs.10,000/- was received as advance. An attempt was made by the defence to contend that the building 'Sandeep Cottage' was occupied by PW29 from 1991 onwards for a rent of Rs.750/-, and that his tenancy was still continuing. But at the same time another witness, PW23, also says that he had occupied the very same building as tenant from February, 1993 to 1995 on a monthly rent of Rs.600/-. According to him, the advance sum of Rs.3000/-, which was paid by him, was got refunded at the termination of his tenancy. Since there was only one building as 'Sandeep Cottage', the court below also Crl. A. No: 1230/2001 -30- found that it was improbable that the same building could have been occupied by the two tenants during the same period. The prosecution contended that after the building was purchased by the appellant in his wife's name in 1986, the appellant was in occupation of that building with his family till 1993, until he shifted his residence to the newly constructed building - Chaithram. It was after he shifted his residence to 'Chaithram', 'Sandeep Cottage' was rented out; one portion to PW29 and the other portion to PW23. PW29 continued to occupy his portion of the building whereas, PW23 vacated the same in June, 1995. No rent receipt or agreement to prove the lease arrangement was produced. The Court below was inclined to accept the evidence given by PW23 that his occupation over portion of the building, mentioned above, started in February, 1993. In the absence of any other evidence, I find that the view taken by the Court below is correct. Thus, by calculating the rent at the rate of Rs.750/- per month, the total rent Crl. A. No: 1230/2001 -31- obtained by the appellant for 30 months was calculated at Rs.22,250/-
34. Based on the evidence given by PW23, the court below found that for the period of 30 months, at the rate of Rs.600/-, the total rent which the appellant could get was Rs.18,000/-. PW23 has also stated that the advance sum of Rs.3,000/- had already been returned to him. Thus, the total rental income of two portions of 'Sandeep Cottage' was calculated at Rs.40,500/- (i.e. 22,500 + 18,000/-). Including Rs.15,000/- (namely Rs.10,000/- obtained as advance from one tenant and Rs.5000/- from another tenant) which was the amount shown by the prosecution, the total income on that count was assessed at Rs.55,500/-. In fact, in the light of the statement of PW23, who is the competent witness to say that the advance amount was got returned, the sum of Rs.5,000/- as shown by the prosecution as the advance amount stated to have been retained by the appellant at the end of the check period was Crl. A. No: 1230/2001 -32- actually not liable to be added towards the income of the appellant. However, since the prosecution has added a sum of Rs.5,000/- as aforementioned, the court below also added that sum of Rs.5,000/- towards the rental income derived by the appellant during the check period.
35. PW28, the toddy shop contractor, had deposed that he was in occupation of one building on a monthly rent of Rs.500/- for which an advance of Rs.10,000/- was given to the accused and when he vacated the building, the advance amount was returned to him. That toddy shop was situated in Survey No:1020/2 of Thiruvillwamala village. According to the prosecution that tenant was in occupation of the building on a monthly rent of Rs.500/- for a period of 16 months upto the end of the check period. As such the income on that count was assessed at Rs.8,000/-. It was brought out in the evidence of PW28 that the advance amount of Rs.10,000/- was retained by the appellant. Thus altogether, a sum of Rs.18,000/- was added towards the Crl. A. No: 1230/2001 -33- income of the appellant as rent and advance from that toddy shop building.
36. PW27 was the tenant of the arrack shop building. Exhibit P33 letter was produced by the prosecution to show that the licensee conducted that toddy shop and arrack shop in the building situated in the property mentioned above. Prosecution has also shown Rs.10,000/- as advance and a total sum of Rs.2,000/- as rent for the arrack shop occupied by PW27. These aspects are not disputed. The aforesaid sum of Rs.18,000/- and Rs.12,000/- are also shown in the statement furnished by the prosecution showing the total income of the appellant during the check period of 10 years from 1.8.1985 to 3.8.1995.
37. The main other ground which was projected by the learned counsel for the appellant, as the sources of income, which according to the appellant was not taken into account, was the income from the property over which the appellant's wife was stated to have fractional right. D.W.5 Crl. A. No: 1230/2001 -34- is the brother-in-law of the accused (brother of D.W.6). D.W.5 says that his father had 3.19 acres of land. The above land was purchased by his father as per Ext.D10. D.W.5 stated that there were five legal heirs including his mother and that after the death of the father, he (DW5) was in possession of that property raising paddy cultivation in an extent of about 2.06 acres and in the remaining portion banana/plantain cultivation was used to be done. His statement is to the effect that after deducting the cultivation expenses, he used to get Rs.45,000/- every year as income and being the 1/5th share, his sister (D.W.6) was used to be paid Rs.9000/- every year. D.W.6 has also stated in line with the evidence given by D.W.5. The learned Public Prosecutor would submit that the evidence given by D.Ws.5 and 6 that every year the income earned by D.W.5 from the property was Rs.45,000/- and every year D.W.6 was paid at the rate of Rs.9000/- cannot be believed at all. According to the Public Prosecutor, the paddy cultivation was in loss in Crl. A. No: 1230/2001 -35- Kerala for several years and hence paddy cultivation was not done in many parts of Kerala, including Palakkad district, and as such the contention raised by the defence that from the paddy cultivation D.W.5 used to get Rs.45,000/- every year cannot be accepted at all.
38. It was contended that Venkitan Raman Naidu, father of DW6, was having right title over an extent of 3 acre 19 cents in respect of which the purchase certificate was obtained by him in 1976 as evidenced by Exhibit D10. It was contended that DW6 was having 1/5th share in the said property and that her brother (DW5) was managing the property, raising cultivations therein. The contention that was advanced is that she used to get Rs.9,000/- per year as income from that property. Except producing Exhibit D10, the photostat copy of the purchase certificate, no other document was produced to show that such a property was in the actual possession of DW5 or DW6 during the relevant period. Not even tax receipt was produced to show that Crl. A. No: 1230/2001 -36- they were having actual possession of the property. Therefore, simply because the photostat copy of the purchase certificate, that too, which was issued in the year 1976, was produced, court cannot hold that during the relevant period the legal heirs of Venkitan Raman Naidu were in possession of the property or that DW5 was actually carrying out agricultural operations in the said property. In the absence of such evidence, the court below was perfectly justified in holding that the defence could not establish that the wife of the accused was having any subsisting right in the said property or that she was getting any share of income from the said property. As said about another paddy land, here also the prosecution contends that no cultivation was conducted in any of those properties since paddy cultivation could not be profitably done. Whatever that be, there is no convincing evidence to show that the appellant's wife was getting any income as share of profits from any such property.
Crl. A. No: 1230/2001 -37-
39. Similarly, though it was contended by the defence that in an extent of more than one acre banana cultivation was used to be done, no convincing evidence is there to show whether any such cultivation was done and what actually was the gross income obtained by raising such cultivation, the number of banana plants planted, the expenses incurred for the labourers, the price of the same etc. Simply because a rough figure is given by P.W.6, no court can act upon such a statement, the learned Public Prosecutor submits. It was stated by D.W.6 that two items of properties covered by Exts.P7 and P9 stand in her name, out of which the property mentioned in Ext.P7 measures 5 > cents whereas the extent of the property mentioned in Ext.P9 is 13 cents. According to her, the total value of that property is Rs.80,500/-.
40. Another contention raised by the accused is that D.W.6 was in possession of another 47 cents of land which was obtained as per Ext. D11 - mortgage deed and from Crl. A. No: 1230/2001 -38- that property also by raising paddy cultivation she used to get Rs.5000/- per year. It was stated that paddy cultivation was done in that property with the help of her brother, D.W.5. This evidence was also challenged by the prosecution. It is contended that it can never be accepted that by raising paddy cultivation in an extent of 47 cents, one can get Rs.5000/- per year as net income.
41. It is in evidence that the two daughters of the accused were got married during the check period. According to D.W.6, the gold ornaments given at the time of the marriage of the eldest daughter were made by making use of the old gold ornaments of DW6. But DW6 admits that for the marriage of second daughter, the gold ornaments were actually purchased. According to the prosecution, even if it is accepted that at the time of marriage of the elder daughter, old gold ornaments were used, in view of the admission made by D.W.6 it can only be inferred that for the marriage of the second daughter gold Crl. A. No: 1230/2001 -39- ornaments were actually purchased. She did not say what was the approximate gold or the gold ornaments given to her elder daughter and also to the second daughter. When she was asked with regard to the gold ornaments, she feigned ignorance. Similarly, when it was suggested that 400 people had attended the marriage, then also she stated that she does not remember. Though in the re-examination it was stated by D.W.6 that the furniture were purchased prior to 1988, she had no case that no furniture was purchased during the check period.
42. No challenge was made regarding the expenses incurred for the marriage of the appellant's two daughters at Rs.45,600/- and 23 sovereigns of gold which must have been purchased for the marriage of the 2nd daughter.
43. Exhibit P11 is the report showing the valuation of the house - 'Chaithram', prepared and issued by PW4, the Assistant Executive Engineer, PWD Buildings Division, Palakkad. That valuation was made in the year 1995. Crl. A. No: 1230/2001 -40- Admittedly, that house was constructed during the check period. As per his report the value of the building was Rs.4,30,859/-. It was stated by him that the building was valued adopting the market rate. It was contended by the defence that, though it was stated by him in cross- examination that he had submitted valuation based on the PWD rate, that report was not produced. According to the defence, as per that report the value of the building was Rs.3,19,118/-. The Court below found that the prosecution should have produced the valuation report showing the cost of construction of the building at the relevant time namely, at the time when the building must have been constructed. It was thus found by the trial court that the prosecution cannot rely upon Ext.P11 to find the valuation of the building. It is true that the valuation may vary depending upon the market rate of the various items used for construction of the building. Since the building was constructed during a particular point of time; what was the Crl. A. No: 1230/2001 -41- cost of construction at the relevant time is what was expected by the prosecution to prove. But at the same time, the contention that the cost of construction should have been assessed at the PWD rate cannot be accepted. It cannot be disputed that it is not possible to construct a building adopting the PWD rate since, it is practically not possible to construct buildings adopting PWD rates. This court cannot ignore the fact that the PWD tenders the work at a rate of about 30% excess of the PWD rate. Even according to the defence the value of the building, adopting PWD rate, was Rs.3,19,118/-.
44. The contention that was vehemently advanced by the learned counsel for the appellant is that since Exhibit X1 and X1(a) would show that the cost of construction was accepted as Rs.2,25,000/-, the prosecution is bound to accept the same as correct. Ext. X1 is the valuation statement furnished by the appellant to the officer of the Construction Worker's Welfare Fund to determine the Crl. A. No: 1230/2001 -42- contribution payable by the owner. That statement was not verified by the Inspector/Officer. There was vast difference in the plinth area shown therein. It was far less than the actual plinth area of the building, which was found by the trial Court also. For the purpose of calculating the amount to be paid towards Construction Workers Welfare Fund, the appellant himself furnished that statement showing the rate of construction at Rs.1900/- per sq.m.
45. The building was actually constructed as per Exhibit P13, the revised plan. As per that plan the plinth area was 154.37 sq.m. Besides, there was a car porch of an area of 13.08 sq.m. The Court below estimated the cost of construction of that car porch, measuring 13.08 sq.m., at Rs.1,000/- per sq.m. Even accepting the same rate as calculated by the appellant for the remaining part of the building at Rs.1,900/- per sq.m., the total value of the building, excluding the car porch, was assessed at Rs.2,93,303/-. Including the cost of construction of the car Crl. A. No: 1230/2001 -43- porch, the total cost was assessed at Rs.3,06,383/-.
46. The learned Public Prosecutor would submit that it is practically not possible to construct a building at the cost of Rs.1,900/- per sq.m., since even according to the defence, as can be discerned from the suggestion put to PW4, the cost of construction at the PWD rate was Rs.3,19,118/-. The court below should not have reduced the cost of construction of the building to Rs.3,06,383/-, the prosecution contends. It was stated by PW4 that the building was inspected by him along with the Assistant Engineer for furnishing the valuation report. According to the prosecution, since the building was valued at the modest rate the total cost of construction should have been accepted by the Court at Rs.4,30,859/- itself. At any rate, there is no reason to reduce the cost of construction arrived at by the Court at Rs.3,06,383/-. It is important to note that Exhibit P11, which includes the covering letter sent by the Assistant Executive Engineer to the Investigating Crl. A. No: 1230/2001 -44- Officer, would show that what was assessed by him is actually the total cost of construction of the said building, the total of which was shown as Rs.4,30,859/-. Therefore, the contention advanced by the accused, which was accepted by the Court below that what was furnished by PW11 was only the valuation of the building and not the cost of construction is found to be unacceptable. It was mentioned in the report that it was pertaining to the construction of the residential building in Town Survey No:118/24, Ward 2 Block III at Sekhalipuram in Palakkad Municipality the report was prepared. As such the prosecution is justified in its contention that the Court below should not have assessed the cost of construction of the building at Rs.3,06,383/- but Ext.P11 should have been accepted. If so, according to the prosecution, towards the assets and expenditure incurred by the appellant during the check period, in fact, a further sum of Rs.1,24,476/- is actually to be added, being the difference in the calculation Crl. A. No: 1230/2001 -45- of the cost of construction of the building-'Chaithram'.
47. The Court below estimated Rs.50,000/- as the expense for the marriage of two daughters of the appellant, besides the 23 sovereigns of gold ornaments, given to the 2nd daughter. Even if the evidence given by PW6 that at the time of the marriage of the 1st daughter, her old gold ornaments were used is accepted, still so much gold ornaments, if not more, must have been given to the 2nd daughter at the time of her marriage. Since the appellant was following such a lifestyle and as he was working as Excise Circle Inspector, the contention raised by the prosecution that at least 400 people might have been invited for the marriage on both occasions cannot be held unreasonable. Anyway, the court below has estimated only Rs.50,000/- as the total expense for the two marriages. The amount so assessed by the Court below cannot be held unreasonable or unacceptable.
Crl. A. No: 1230/2001 -46-
48. The total household expenses estimated by the Court below for the check period of ten years is only Rs.1,81,500/-; that means the annual household expense was estimated only at Rs.18,150/-. In fact, the accused does not dispute the household expenses so assessed. That also, according to the Public Prosecutor, is very meager. That assessment does not require interference. Similarly, the cost of clothing purchased for the whole period of ten years was only Rs.10,000/- which also is quite reasonable, if not far less.
49. The learned Public Prosecutor would submit that only Rs.18,515/- was reckoned by the Court towards educational expense of the appellant's children for the whole period of ten years. The appellant's daughter Sunanda was studying in NSS College, Ottappalam for her Post-Graduate Course in Economics during the year 1992. Exhibit P29 is the statement which was issued by PW24 showing Rs.552/- as the expense for her course. It was not Crl. A. No: 1230/2001 -47- disputed that she had studied for her Pre Degree Course in Government Victoria College, Palakkad during 1985-87. Exhibit P31 is the statement issued by PW 25, the Principal of that college, regarding the educational expenses for the said Pre-Degree Course. Thus, total expenses was estimated at Rs.852.75.
50. In Exhibit P69 statement the prosecution has calculated the total educational expenses of Sunanda mentioned above at Rs.1,254.75. It was pointed out by the Court below also that the fees paid for the Post Graduation and Pre-Degree Courses alone were taken ignoring the expenses incurred for Graduation. Similarly, their miscellaneous expenses which must have been incurred were also not taken into account.
51. The appellant's daughter Suguna studied for the Degree Course in the Government Victoria College, Palakkad, during 1991 - 1994. Exhibit P31 statement shows that the total expenditure incurred for her study for Crl. A. No: 1230/2001 -48- the Degree Course was only Rs.1,186/-. That is the expense, as per the statement of the Principal, which can only be the fees paid for that Course and not the actual expenses. The actual other expenses incurred by his daughter Suguna were also not added along with the amount spent for the payment of her college fee. It was pointed out that Suguna had studied for her Pre-Degree Course during 1989-1991 in Jayamatha College, Palakkad, in respect of which Exhibit P46 statement was issued by PW
26. That statement shows that the amount spent for educational expenses for the Pre-Degree Course was only Rs.1,600/- which again would only show that it was the amount paid towards fees and not the actual amount incurred by that student for her studies. It is curious to note that even prosecution has assessed her educational expenses less than Rs.2,486.50 as against the total fees of Rs.2,786/- as shown in Exhibits P31 and P46. Crl. A. No: 1230/2001 -49-
52. As per Exhibit P69 statement, the educational expenses of Akhila, another daughter of the accused was shown at Rs.2,055/-. During 1992-1997 she had studied for Pre-Degree and Degree Courses. The amount of educational expenses for her Pre-Degree was shown at Rs.1,020/-. Since, part of the graduation was had beyond the check period the amount spent during the check period alone was taken, which includes only the expenses for two years of the degree course. In the first year course the educational expenses was shown at Rs.775/- and for the second year course it was shown as Rs.1,060/-. As the fee for second year was paid on 23.6.1995, within the check period, adding the same her total educational expense period for the Pre- Degree and 1st and 2nd year Degree course was assessed at Rs.2,855/-.
53. The learned Public Prosecutor submits that what was reckoned was only the fees that was paid to the concerned college. Traveling expenses and other Crl. A. No: 1230/2001 -50- miscellaneous expenses including the price of books and such articles were not taken into account at all. Further, the fact that two daughters were grown up girls, who may require additional expenses also was completely lost sight of. These aspects have been projected by the learned Public Prosecutor only to convince the Court that, in fact, much more amount must have been incurred by the appellant towards the educational expenses.
54. The educational expenses of Sandeep, the appellant's son was shown as Rs.12,620/-. That was not disputed by the accused. Thus the total educational expenses for all the children was calculated at Rs.18,515/-. As pointed out earlier, the expense shown above is only the fees paid for the courses studied by the four children. It does not take in the actual expenditure of the children including traveling expenses, miscellaneous expenses, expenditure for purchasing books and other articles and so many other items. Therefore, the learned Public Prosecutor Crl. A. No: 1230/2001 -51- is justified in his submission that, in fact, the prosecution should have added much more amount towards educational expenses of the four children of the accused.
55. Similarly, Rs.750/- the refill charge of gas cylinders and Rs.7,518/- the expense incurred for electricity consumption and Rs.950/- the water charges paid by the appellant, as shown in Exhibit P69 statement, were also not in dispute. It was also found that Rs.4,167/- which was paid towards Consumer No:7962, which was treated as consumer no. of the building Chaithram, was also not seriously disputed. The water charges paid in respect of the connection given to Sandeep Cottage which was occupied by the tenant was not added towards the expenditure incurred by the appellant. Though a sum of Rs.10,800/- was shown towards maintenance of the motor cycle in Exhibit P69 statement at the rate of Rs.110/- per month for nine years, since no acceptable evidence was adduced that was not included towards the expenditure incurred by the appellant. Crl. A. No: 1230/2001 -52- The evidence on record showed that the said motor cycle was purchased in the year 1987. Monthly expense fixed was Rs.75/-. Hence, the total expense for using that vehicle was assessed at Rs.8,100/-.
56. Thus the Court below found that the expenditure incurred by the appellant during the check period was Rs.2,74,633/- and 23 sovereigns of gold. Since the gold in the possession of the appellant at the end of the check period was found less by 49.800 grams than what was possessed at the beginning of the check period and when 23 sovereigns of gold expended for the marriage of his daughters are also added, the asset possessed by the appellant in relation to gold can be found to be 134.200 grams. It was pointed out that since another daughter Akhila was also to be given in marriage, the appellant's wife might have made some saving from her household affairs and from activities like poultry, vegetable farming etc. The possession of 134.200 grams of gold was reckoned as the Crl. A. No: 1230/2001 -53- one which might have been obtained or purchased by making use of some such fund earned by the appellant's wife. Hence, the possession of that gold was not taken into account to determine the percentage of the disproportionate assets of the appellant.
57. The learned Public Prosecutor would submit that, in fact, maximum leniency was shown in assessing the expenditure. As mentioned earlier, the amount spent by the appellant towards educational expenses of the four children for the check period of ten years would have been much more than what was reckoned. Similarly, the amount incurred for the marriage shown by the prosecution appears to be far less than the amount which might have been spent by the appellant, an officer of that status and potentiality. Further, the household expenses also was the minimum that was taken into account by the prosecution which cannot be the real expenditure incurred for that purpose, considering the status and lifestyle. Therefore, according to the learned Crl. A. No: 1230/2001 -54- Public Prosecutor, the amount actually reckoned by the court below as disproportionate assets is far less than the actual amount. Therefore, even if the arguments advanced by the learned counsel for the appellant that the amount of Rs.8,000/- covered by the U.T.I. Certificates and the value of sofa set and the wooden logs are excluded, still the assets acquired and expenditure incurred is disproportionate to the pecuniary sources of the appellant.
58. The appellant contends that the electronic goods described as item nos. 10 to 14, which were together valued at Rs.22,500/-, were actually available prior to 1.8.1985 and so those items could not have been treated as items acquired during the check period. If as a matter of fact such electronic goods were actually available prior to 1.8.1985 there was no difficulty for the appellant to produce the bills for the purchase of the same. No such bills were produced. That apart, such electronic goods will not remain for long, since such goods used to get damaged very often and new Crl. A. No: 1230/2001 -55- items have to be replaced in the place of the old ones. he date of purchase of those items was within the exclusi e knowledge of the appellant. But no document was made av ilable to show that any such electronic goods were av ilable prior to or as on 1.8.1985. The contention thus ad anced by the appellant cannot be accepted.
59. Though contention was advanced that the wooden logs and planks were available with the appellant for making furnitures, no acceptable evidence was adduced regarding the same. With regard to other wooden logs which were found at the time of search conducted in this matter, the defence put forward by the appellant that those wooden logs were obtained by cutting the remaining trees, was found unacceptable since no stumps of teak, rosewood etc could be found when the property in question was inspected in the presence of the Revenue and Forest Officials.
Crl. A. No: 1230/2001 -56-
60. In fact, the trial Court has deducted Rs.11,100/-, the value of certain furniture holding that those furniture might have been there even before the check period and as such the value of the same was added along with the assets which existed prior to 1.8.1985. Similarly, Rs.3,000/-, the value of steel cabinet, according to the prosecution, acquired during the check period was also excluded by the trial Court, even though no document was produced to show that it was purchased during the check period.
61. The Court below found that the assets at the end of the check period was Rs.5,88,801/-. The assets at the beginning of the check period was Rs.80,148.45. Thus the assets acquired alone, during the check period, was found to be Rs.5,08,652.55. The amount incurred by the appellant towards expenditure for the check period has to be added along with this. The expenditure so incurred is found to be Rs.2,74,633/-. Thus the total assets acquired and the expenditure incurred comes to Rs.7,83,285.55. The total Crl. A. No: 1230/2001 -57- income during the check period was found to be only Rs.4,27,373/-. Thus the difference which is seen to be disproportionate was assessed at Rs.3,55,912.55. It was found to be 83.37%.
The appellant could not account for the possession for the disproportionate assets as mentioned above. As such the finding of guilt entered by the Court below is found to be perfectly correct. Since the substantial sentence awarded by the Court below is simple imprisonment for one year, which is the minimum prescribed, and the amount of fine awarded is only Rs.1,00,000/-, I find no reason to interfere with the same.
62. In the result this Criminal Appeal is dismissed confirming the conviction and sentence passed against the appellant.
N.K. BALAKRISHNAN, JUDGE jjj