Kerala High Court
Central Bureau Of Investigation vs K.B.Mohandas on 4 November, 2020
Author: Sunil Thomas
Bench: Sunil Thomas
Crl.Appeal No.2241/2007 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942
CRL.A.No.2241 OF 2007
AGAINST THE ORDER/JUDGMENT IN CC 12/1999 DATED 28-03-2007 OF
SPECIAL C SPE/CBI-II&4 ADDITIONAL DISTRICT COURT,EKM
AGAINST THE ORDER/JUDGMENT IN OTHERS 1152/2007 DATED 07-11-2007
OF HIGH COURT OF KERALA
APPELLANT/COMPLAINANT:
CENTRAL BUREAU OF INVESTIGATION
COCHIN BRANCH, KATHRIKKADAVU,, COCHIN-17.
BY ADVS.
SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR
C.B.I.
ASSISTANT SOLICITOR GENERAL
SRI.S.SREEKUMAR, SC, FOR CBI
SRI.M.V.S.NAMBOOTHIRYSC C.B.I.
SRI.P.CHANDRASEKHARA PILLAI C.B.I.
RESPONDENT/ACCUSED AND STATE:
K.B.MOHANDAS,
SUPERINTENDENT OF CUSTOMS AND CENTRAL EXCISE,
COCHIN.
R1 BY ADV. PUBLIC PROSECUTOR
R1 BY ADV. SRI.TOM JOSE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-10-
2020, THE COURT ON 04-11-2020 DELIVERED THE FOLLOWING:
Crl.Appeal No.2241/2007 2
JUDGMENT
Dated this the 4th day of November 2020 Central Bureau of investigation, Cochin Branch, who is the complainant in C.C.No.12/99 of the Special Judge (SPE/CBI)-II, Ernakulam, aggrieved by the acquittal of sole accused who faced trial before the court below for offences punishable under section 13(2) r/w 13(1)(e) of Prevention of Corruption Act, 1988, has preferred this appeal.
2. The accused was initially working as Inspector, Central Excise department and thereafter as Customs Officer at various places. According to CBI, accused was in possession, either in his own name or in the name of his wife/PW49, movable and immovable properties valued at Rs.52,434/- as on 01.06.1990 which was the commencement of check period. By the end of check period on 04.08.1995, he was found in possession of movable and immovable assets, either in his own name, or in the name of his wife, to the value of Rs.8,55,324.30/-. During the period, he received an income of Rs.4,90,366/- from all known sources and incurred an expenditure of Rs.2,38,059/-. Hence, his likely savings during the above period should have been Rs.2,52,307/-. However, he and his wife were found to possess in their names, assets both movables and immovables, disproportionate to the known sources to a tune of Rs.5,50,583.30/-, Crl.Appeal No.2241/2007 3 for which, he could not satisfactorily account.
3. On the basis of source information, crime was registered and after investigation, final report was laid. Accused denied the charges and faced trial before the court below. On the side of prosecution, PWs1 to 52 were examined and Exts.P1 to P205 were marked on the side of accused. Dws.1 to 8 were examined. Court below, on the basis of materials held that, prosecution failed to establish that accused acquired assets disproportionate to his known source of income. Accordingly, accused was acquitted.
4. Aggrieved by the judgment and conviction, prosecution has preferred this appeal. Heard the learned Special Prosecutor for CBI and the learned counsel for the accused.
5. Court below virtually accepted the contention of the prosecution regarding the total earnings of the accused during the check period, acquisitions made by him and in the name of his wife during the above period and their valuation. The main allegation of the prosecution was that, though several items of properties acquired during the check period stood in the name of PW49, wife of the accused, they were colourable purchases made by the accused using his funds generated from undisclosed sources. Hence, to that extent, accused was guilty of offences punishable under section 13(1) of the PC Act. Court below virtually accepted his contentions regarding the sources of income with which those acquisitions were made as contained in Ext.P2 statement given by the accused to his superior officers regarding his acquisitions. Virtually, believing the defence Crl.Appeal No.2241/2007 4 version that the above acquisitions were effected utilising known sources of income which were properly accounted for, court below concluded that the accused was able to discharge his duty to satisfy the Court that the acquisitions were not from unknown sources of income.
6. Items which were alleged to be acquired by the accused during the check period mainly fall within two categories. First one, movables, consists of the household items, premier Padmini car that stood in the name of wife, shares and mutual funds. It has come on record that the Premier Padmini car was purchased on 21.12.1992 and the value assessed was Rs.75,000/-. Immovable property consists of 8 items separately mentioned in the schedule. First item was 1.95 acres of rubber plantation in Alacode Panchayath purchased on 30.09.1985 in the name of PW49 by Ext.P73 sale deed, for a sale consideration of Rs.15,000/-. The above document was marked through PW5. Second item was 24 cents of land in survey No.292/1A of Alacode Panchayath in the name of PW49. It was purchased on 03.09.1992 by Ext.P79 sale deed for a sum of Rs.5,000/-. The above document was marked through PW7. Another 30 cents of land with house situated therein in survey No.292/1A of house situated therein in Alacode village was purchased in the name of PW49, evidenced by Ext.P80 sale deed dated 04.06.1993 for a sum or Rs.20,000/-. The document was proved through PW7. 4.675 cents with a residential house situated therein at Kathrikadavu in Ernakulam was purchased by PW49 from PW33 by Ext.P84 sale deed dated 31.03.1993. The sale price shown was Crl.Appeal No.2241/2007 5 Rs.1,25,000/-. It was proved through PW8. Items E and F were the construction, expenses for the first floor of the residential building in the above property valued at Rs.3,49,000/-. Item F was the construction expenses for the additional construction in the building of the accused effected expending Rs.31,721/-. Items G and H shown in the list were two separate items of properties situated in survey No.2157/P of Palakkayam village. First item had an extent of 3.06 acres purchased in the name of the accused by Ext.P96 sale deed dated 03.09.1993 for Rs.1,22,400/-. Item H was 74 cents of land in survey No.2157/P of Palakkayam village purchased by Ext.P97 sale deed dated 30.10.993. Title deeds in relation to both the above properties were marked through PW12 who was the Sub Registrar of Mannarkka .
7. The check period during 01.06.1990 to 04.08.1995, the total pay and emoluments during the above period as alleged by the prosecution were established through Registers and records and Exts.P2,P3,P6 and P180 maintained in the office of the accused which were marked through PW1, PW2 and PW51. The above witnesses who were officers of the Central Excise and Customs department gave evidence supporting the prosecution case. The above income was not in dispute. The various immovable properties that stood in the name of the accused and in the name of his wife were assessed a total sum of Rs.7,80,121/- by the prosecution. This was also not in dispute.
8. According to PW49, she was married to the accused on 22.07.1984 and two children were born in the matrimonial Crl.Appeal No.2241/2007 6 relationship. According to her, 50 sovereigns of gold were given to her at the time of marriage. The main defence set up by the accused regarding the various acquisitions was that, item No.1 was purchased long prior to the commencement of check period and hence, it cannot be considered for the purpose of prosecution. According to the accused, that item fetched substantial income and he purchased some of the remaining properties with the income generated from item No.1. Regarding the remaining items, his contention was that, either they were purchased with the funds of the wife as given by his father-in-law or his own family properties. There is substantial evidence to show that the father of accused was a business man at Mannarkkad and also a real estate broker. He had substantial income. It is also on record that father-in-law was also a substantially rich person and owned extensive lands. According to the accused, with the help of father and his father-in-law, he could purchase the various items and construct a house in Kathrikkadavu.
9. Regarding the sanction, prosecution examined PW5, the Commissioner of Central Excise during the period 1999. He deposed that, he was the authority competent to terminate the accused. Ext.P179 is the order granting sanction dated 29.11.1999. He stated that, he had perused the documents and records and based on that, sanction was granted in accordance with law. This version of the above witness was not seriously challenged by the accused.
10. According to the evidence tendered by the witnesses who were officials of the Central Excise and Customs department based on Crl.Appeal No.2241/2007 7 Exts.P2, P3, P6 and P180, the total salary paid to the accused during the above period totalled to Rs.2,03,666/-. He was given a reward of Rs.52,500/- and by GPF withdrawal a sum of Rs.75,000/- came to his account. PWs.3, 4 and 6 were the senior officers of different banks who also deposed about the various accounts maintained by the accused in those banks. The evidence let in indicated that under the heading of shares and mutual funds, he possessed 500 units of UTI which was proved through PW34, who was the Chief Manager of UTI.
11. The crux of the defence of the accused was that, acquisitions effected by Ext.P73, 79, 84 and 97 were acquisitions in the name of his wife effected with known resources. The movables, including the car were purchased by him with his own funds. Prosecution allegation was that, construction of the building was done by him using his own unknown sources of income. The crux of the prosecution as mentioned above was that, all acquisitions during the check period in the name of the accused or that of his wife were colourable purchases. In the Section 313 Cr.P.C questioning, the above defence was reiterated by the accused.
12. In the course of evidence, it has come on record that, Ramakrishna Pillai, the father-in-law of the accused had substantial income. This has significance in the background of the contention of the accused that he was financially supported by his father-in-law. His father also had substantial assets. PW18 was the Manager of CSB, Mannarkkad through whom Ext.P104 account details of father was Crl.Appeal No.2241/2007 8 proved. PW19 was the Manager of Co-operative Society where his father- in - law had an account. PW24 was an officer of Alacode Service Co-operative Society where his father-in-law had account. PW41 was the Manager of North Malabar Gramin Bank of Mannarkkad where the brother of the accused had account. This was intended to establish that, brother had financially aided the accused. PW10 vendor has deposed that, by Ext.P85 to P92 documents, properties were sold to members of the family of the accused. PW9 was the Sub Registrar of Agali through whom Ext.P85 to 92 were marked. The above documents were marked through PW11 Head Clerk of Agali SRO. These materials indicate that, his father had substantial income and had the capacity to financially aid the accused and his wife.
13. However, PWs.30 and 32 are the Agricultural Income Tax and Sales Tax officers Taliparamba during the 1996-2001 who deposed that, Bhaskaran Pillai, father of the accused and his brother DW1 were not assessees of agricultural and sales tax. According to the witness, those shop owners who had a turn over of more than Rs.1,00,000/- were liable to pay sales tax. Evidence has also come in that, accused had a building and in item No.(a), PW36 was the tenant in that building during the period 1993 to 1998. Rs.300/- per month was given as rent.
14. Those are sufficient materials to indicate that family members of the accused and his wife had substantial assets and were capable of financially aiding the accused.
15. Evidently, first item of the schedule of immovable property Crl.Appeal No.2241/2007 9 was purchased much prior to the check period. Hence, that item is liable to be excluded from consideration. The contention of the prosecution was that, remaining properties were purchased by the accused clandestinely and to cover up that, unknown source of income were utilize. Most of those properties stood in the name of his wife. It was contended that, under Rule 18(1)(2) of the Central Civil Service Conduct Rules, every civil servant was bound to file a statement of income particulars every year. The accused had not submitted annual statements. It was contended that, hence these items were not disclosed, which indicates that, those were clandestine purchases, which were not officially revealed to the parent organization as per service Rules. Hence, the contention was that it was purchased with his own funds and with the financial support of his own family members and in laws can only be considered as belated afterthought. To substantiate this contention and to contend that, known source of income must be those income known to the investigation officer, learned counsel for the prosecution relied on the decisions reported in P.Nallammal and another v. State represented by Police (1999 Crl.J 3967) and State of Madhya Pradesh v. Awadh Kishore Gupta and Ors. (AIR 2004 SC 517). In both the decisions, the scope of the term "known sources of income" under the Prevention of Corruption Act was considered. Relying on the above decisions, learned counsel for the prosecution contended that the court below went wrong in holding that Rule 18(1)(2) was not applicable. It also went wrong in accepting the defence evidence and in acquitting the Crl.Appeal No.2241/2007 10 accused. According to learned counsel, the judicial decisions were wrongly applied. It was contended that, known sources of income under the PC Act is the income whose source is made known to the investigation officer. No attempt was made by the accused to disclose the source of his assets to the investigation officer and only at the time of defence evidence, it was disclosed. Hence, the prosecution could not ascertain the genuineness of such defence,it was argued.
16. According to the accused, he was a group C officer who was governed by Rule 18(4) of CCS Conduct Rules. It is obligatory on such employees to file a statement at the time of joining and thereafter, at such intervals, as are required by a general order. According to the counsel, Rule 18(1)(2) of the CCS Conduct Rules applied only to group A and B officers. It was further contended that, accused became a group B officer only on promotion as Superintendent of Central Excise with effect from 29.08.1999. First statement Ext.P2 under Rule 18(1)(2) of the CCS Conduct Rules was given on 29.08.1997, pursuant to Ext.D30. He had satisfactorily explained regarding all acquisitions in his name and wife in Ext.P2. Hence, he cannot be accused of having concealed the acquisitions merely on the ground that statement under Rule 18 (1) (2) was not filed every year.
17. Evidently, petitioner was a group C officer till 29.08.1997. The section is clear that it takes within its ambit such transactions alone. In Awadh Kishore Gupta's case (supra) the expression 'known sources of income' was referred to as sources known to the Crl.Appeal No.2241/2007 11 prosecution after thorough investigation of the case. It was held that, it cannot contended that, 'known sources of income' means sources known to the accused. The prosecution cannot, in the very nature of things be expected to know the affairs of an accused person. Those will be matters 'specifically within the knowledge' of the accused within the meaning of section 106 of Indian Evidence Act.
18. It seems that, known sources of income does not indicate that, it should not be a secret or clandestine transaction known only to the accused. However, if transactions are transparent, or by documentary transactions and those which can be supported by cogent evidence, to my mind, does not fall within the scope of bad transactions. In the case at hand, it can be seen that, several dealings were through bank accounts. Hence, it cannot be said that, those transactions were clandestine transactions and the contention set up was a belated one.
19. It is seen that the accused had given explanation regarding each purchase, mentioned in Ext.P2 statement. According to him, item No.1 was purchased long prior to the check period. The Court below also found that, purchase was made by the father of the accused with the funds provided to the accused at the time of his marriage. It was purchased immediately after the marriage and was lying near the family property. Hence, reasoning of the court below that, it should be excluded from the check period is liable to be sustained.
20. Regarding item Nos.B and C, the defence set up by the accused was that, they were purchased with income generated from Crl.Appeal No.2241/2007 12 item A property. Both the properties are seen purchased in the year 1993 for a sum of Rs.5,000/- and Rs.20,000/- respectively. Even according to the prosecution, income from item A for 5 year check period was Rs.55,860/-. Hence, the defence version regarding those properties cannot be considered as doubtful in the light of the above explanation.
21. Much argument was advanced by both sides regarding the acquisition of D property. It is seen that the property was purchased from PW33, whose husband was the owner of the property and who was employed under the accused. The defence set up by the accused was that, funds for its purchase wereprovided by the father of PW49. PW49 and DW3 had given consistent evidence regarding the above aspects. DW3 had stated that, arrangements for execution was done by the father of PW49. Consideration came from him which was corroborated by PW33. Father of the first accused and the husband of PW33 were witnesses to the above.
22. Items E and F relate to the expenses for construction of buildings in item D. Its value was assessed at 3.49 lakhs and Rs.31,721/- respectively. Explanation of the accused was that, the funds for above construction were given by the father and brother DW1. According to DW1, they had a traditional family business which was being run by DW1 along with his father since 1980. According to him, the value of present stock was Rs.10 lakhs. He also deposed that, brother had helped him to construct his house. A sum of Rs.1 lakh was paid by the brother. It has come on record that, construction Crl.Appeal No.2241/2007 13 was made by him utilizing the funds given by his father and brother and DW1, brother-in-law. Rs.2 lakhs was given by the father and brother. PW47, the mother of the accused had an FD which was closed and money was given to DW1 for purchasing the DD. 3 DDs for Rs.1 lakh were drawn. Father gave one more lakh of rupees which is corroborated by PW48. It was procured by the sale of rubber. Additional construction had an investment of Rs.70,000/- which was carried out by the father. In the light of the above evidence, if the resource of the father and brother of the accused were pooled in favour of the accused, it has to be presumed that the defence was true, especially in the light of Exts.P133 to 137. It has also come on record that, DDs worth Rs.1 lakh was produced by PW48. Exts.P162 and 163 support the version that the amounts were transferred by the DDs to his account.
23. Regarding item No.G defence was that, father of accused had purchased 11.85 acres of land from DW5. It was purchased by documents Ext.P93 and P98, out of which, G schedule property covered by Ext.P96 was given by the father to the accused as paternal share. This version is spoken by PW49 and DW1. According to DW1, entire property was purchased by father for resale. Since it could not be sold, he dedicated it as family property for the benefit of all members. His idea was to retain a small area for rubber plantation for getting plantation benefits. It is seen that, 2.65 acres were allotted to DW1 from the entire extent. This shows that, the contention of the prosecution that it was a clandestine transaction Crl.Appeal No.2241/2007 14 does not appear to be correct.
An evaluation of the entire facts indicate that the above acquisitions cannot be held to be clandestine transactions. They appear to be in accordance with law and there is substantial evidence to doubt the prosecution case. Having considered these facts, I am inclined to hold that, there is no merit in the appeal. Accordingly, the appeal is dismissed.
Sd/-
SUNIL THOMAS
sbna JUDGE