Bangalore District Court
The State Karnataka Represented By ... vs ) Sri.Shami Ur Rehaman S/O Shaik Bale on 30 July, 2022
1
1
Spl.C.C.No.232/2009
KABC010195162009
IN THE COURT OF THE XXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, SPECIAL JUDGE, BENGALURU URBAN
DISTRICT, (C.C.H. 24), BENGALURU CITY
Dated this the 30th day of JULY, 2022.
PRESENT:
LAKSHMINARAYANA BHAT K.
XXIII Additional City Civil and Sessions Judge
Special Judge,
Bengaluru Urban District, Bengaluru City.
Spl.C.C. No.232/2009
Complainant: The State Karnataka represented by Deputy
Superintendent of Police, Karnataka
Lokayuktha, City Division, Bengaluru.
(By the Public Prosecutor)
/Vs./
Accused: 1) Sri.Shami Ur Rehaman S/o Shaik Bale,
aged about 55 years, the then police
inspector, C.C.B., Bengaluru.
2) Smt.Bilkish Jahan @ Sartaj Begaum
W/o Shami Ur Rehaman, Residing at
Flat No.401, 4th Floor, Sanjay Palace,
1st Cross, AECHS (KEB) Layout,
Sanjayanagara, Bengaluru.
3) Sheik Bale ( abated)
2
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Spl.C.C.No.232/2009
4) Jafir Bee ( abated)
(By Sri Shankar P. Hegde, advocate for
accused No 1 and 2)
JUDGMENT
The Deputy Superintendent of Police, Karnataka Lokayukta, City Division, Bengaluru has submitted the charge sheet against the accused No.1 to 4 for the offences punishable under Section 13(1)(e) read with Section 13(2) of The Prevention of Corruption Act, 1988 (in short the PC Act) and Section 109 of The Indian Penal Code (in short the 'IPC').
2(a). The short facts leading to the prosecution case are that on 5.11.1977 the accused No.1 was appointed as the probationary Sub-inspector of police and later he got promotion as the police inspector. As on the date of raid, 14.3.2006, he was working as the police inspector. According to the prosecution, during the check period, from 1.8.1991 to 14.3.2006. the accused No.1 has acquired the pecuniary resources and property disproportionate to his known sources income in his name and in the name of his family members. As per the charge sheet, the disproportionate assets of the accused is shown as Rs.79,79,966.63 (230.96%).
2(b). The accused No.2 is the wife, the accused No.3 is the father and the accused No.4 is the mother of 3 3 Spl.C.C.No.232/2009 the accused No.1. It is alleged that the accused No.2 and 4 were not having independent source of income. The accused No.3, father of the accused No.1 was retired in the year 1978 as the Assistant Sub-inspector of police and except the pension, he had no other independent sources of income. The accused No.1 has purchased the property in the names of the accused No.2 to 4. Hence the accused No.2 to 4 have abetted the accused No.1 to acquire the property in their names and thereby they have committed the offence punishable under Section 109 of the IPC.
3. After filing of the charge sheet, cognizance of the offences were taken, the presence of the accused was secured and they were enlarged on bail. After reporting the death of the accused No.3 and 4, as per order dated.23.7.2014 and 03.11.2014, the proceedings against them stands abated. On 14.7.2016, the charge was framed against the accused No.1 and 2 and they have pleaded not guilty and claimed to be tried.
4. In order to bring home the guilt of the accused, the prosecution has examined Pw.1 to 30 witnesses and also produced and got marked Ex.P-1 to P-85 documents. After conclusion of the prosecution side evidence, questions were framed regarding the incriminating evidence appearing in the prosecution evidence against the accused and they were examined under Section 313 4 4 Spl.C.C.No.232/2009 (1)(b) of the Cr.P.C. In defence, the accused No.1 got examined himself as D.W.40 and the accused No.2 was examined as D.W.42 and 40 witnesses were examined as D.W.1 to 39 and 41 and they have produced Ex.D1 to D- 94 documents.
5. Heard the arguments of both sides. The learned advocate appearing on behalf of the accused has filed memorandum of written arguments and relied upon the following reported judgments in support of his case:
1) AIR 1996 Supreme Court 3390 - C.Chenga Reddy and others Vs. State of A.P.
2) AIR 1993 Supreme Court 313 - M.Krishna Reddy Vs. State
3) (1991) 3 Supreme Court Cases 655 - K. Veeraswami Vs. Union of India and others
4) (2015) 14 Supreme Court Cases 505 - Kedari Lal Vs. State of Madhya Pradesh and others
5) (2006) 1 Supreme Court Cases 420 - DSP. Chennai Vs. K.Inbasagaran
6) (2012) 2 Supreme Court Cases 34 - Kailash Gour and others Vs. State of Assam
7) (2018) 3 Supreme Court Cases 22 - Dataram Singh Vs. State of Uttar Pradesh and another
8) (2000) 6 Supreme Court Cases 338 - State of M.P. Vs. Mohanlal Soni 5 5 Spl.C.C.No.232/2009
9) 2001 Cri.L.J. 1242 - Seeta Hemchandra Shashittal and another Vs. State of Maharashtra and others
10) AIR 2017 Supreme Court 3713 - Vasant Rao Guhe Vs. State of Madhya Pradesh
11) (2009) 15 Supreme Court Cases 200 - State of Maharashtra Vs. Dnyaneshwr Laxman Rao Wankhede
12) 2016 (4) KCCR 3453 State by Lokayuktha Police, Mysore Vs. Gurumallappa
13) (2011) 2 Supreme Court Cases 385 Alamelu and another Vs. State represented by Inspector of Police
14) LAWS (SIK) 2013 7 2 High Court of Sikkim - Dhan Subba Vs. State of Sikkim
15) AIR 1977 Supreme Court 796 Krishnanand Agnihotri Vs. State of Madhya Pradesh
16) 2010 (2) KCCR 1010 Karnataka High Court Circuit Bench at Gulbarga - Babappa Vs. State by Lokayuktha Police, Gulbarga
17) LAWS (DLH) 1996 7 103 High Court of Delhi - Gunjit Singh Vs. State of Delhi
18) LAWS (SC) 1019 9 19 Supreme Court of India -
19) (2010) 5 Supreme Court Cases 401- S.Kaladevi Vs. V.R.Somasundaram and others
20) LAWS (MAD) 2006 8 188 High Court of Madras - State Vs. K.Ponmudi 6 6 Spl.C.C.No.232/2009
21) LAWS (MAD) 2006 9 143 High Court of Madras - G.Malliga Vs. State
22) LAWS (MAD) 2007 12 547 High Court of Madras - R.Kannappan and K. Chandrasekaran Vs. State by Deputy Superintendent of Police
23) LAWS (GAU) 2013 8 19 High Court of Gauhati - Atul Ch. Kalita Vs. State of Assam
24) (2013) 12 Supreme Court Cases 406 - Sujit Biswas Vs. State of Assam
25) LAWS (KAR) 2013 8 353 High Court of Karnataka - B T Nagappa Vs. State
26) AIR 2007 SC (Supp) 1860 - State Inspector of Police, Visakhapatnam Vs. Surya Sankaram Karri
27) 2017 (3) AKR 690 - Siddappa M. Poojari Vs. State of Karnataka
28) LAWS (BOM) 1996 4 138 High Court of Bombay - Prakash Vishwasrao Kohok Vs. State of Maharashtra
29) LAWS (KAR) 2015 8 159 High Court of Karnataka - Tulsiram Vs. The State
30) LAWS (KAR) 2012 3 123 High Court of Karnataka - Sripada Gouda Vs. State by Karnataka Lokayuktha Police Station, Dharwad
31) LAWS (KAR) 2013 10 403 High Court of Karnataka - Tirakappa Kuravatteppa Byadagi Vs. State of Karnataka 7 7 Spl.C.C.No.232/2009
32) CRL.A. No.1225/2002 High Court of Kerala at Ernakulam - Muralimohan Nair Vs. V.S.Kurup, Inspector of Police
33) AIR 1964 Supreme Court 464 - Sajjan Singh Vs. State of Punjab
34) CRL.A. No.479/2009 High Court of Judicature at Bombay, Nagpur Bench, Nagpur - Nandkumar Mahadu Ghegwat Vs. State of Maharashtra
35) AIR 1998 Supreme Court 88 - State of Maharashtra Vs. Pollonji Darabshaw Daruwalla
6. Having heard the arguments of both sides and after taking into consideration the evidence on record coupled with the documents and the written arguments submitted by the accused, the points that would arise for the determination of this court are;
1. Does the prosecution prove the fact that it has obtained a valid sanction to prosecute the accused No.1 as required under Section 19 of the PC Act?
2. Does the prosecution prove beyond reasonable doubt the fact that the accused No.1 being the public servant, during the check period from 01.08.1991 to 14.03.2006 was found in 8 8 Spl.C.C.No.232/2009 possession of disproportionate property worth Rs.79,79,966/- (230.96%) to his known sources of income in his name and in the name of his family members, the accused No.2 to 4 and he could not satisfactorily account for the said amount and thereby he has committed the offence defined under Section 13(1)
(e) punishable under Section 13(2) of the PC Act, 1988?
3. Does the prosecution prove the fact that the accused No.2 being the wife of the accused No.1, during the check period had abetted the accused No.1 in acquiring the properties and the assets disproportionate to the known sources of income and thereby she has committed the offence punishable under Section 109 of the IPC?
4. What order?
7. The aforesaid points are answered as follows::
Point No.1: In the affirmative Point No.2: In the affirmative Point No.3: In the affirmative Point No.4: As per final order, for the following:9 9
Spl.C.C.No.232/2009 REASONS Point No.1:
8.1. It is undisputed fact that as on 14-03-2006 the date of raid, the accused No.1 was working as the police inspector, C.C.B, Bengaluru and on the date of filing of the charge sheet, he was working as the Deputy Superintendent of Police. Therefore, he was a public servant and as provided under Section 19 of the PC Act, the prosecution is required to obtain the valid sanction.
8.2. In order to prove the factum of sanction, the prosecution has examined Pw-4, Mr.T.N.Ravi Prakash, the retired Under Secretary to the Government of Karnataka and also produced and got marked Ex.P61, the sanction order. Pw.4 in his examination in chief has deposed that on 20.4.2009, he had received the requisition letter from the ADGP, Karnataka Lokayukta, Bengaluru along with copy of the documents such as the investigation report, files in five volumes, FIR, panchanama, etc. After verification of the documents, obtained opinion from the prosecution department and through proper channel he has submitted the file to the Additional Chief Secretary and in turn it was placed before the Hon'ble Home Minister. As per the evidence of P.w.4, after verification of the documents and on arriving to the conclusion that prima-faice case was made out that the accused has acquired assets disproportionate to his known sources of 10 10 Spl.C.C.No.232/2009 income, the Government being the competent authority exercised its powers and accorded the sanction to prosecute the accused. He further deposed that as an Under Secretary to the Government of Karnataka, according to the Karnataka Government Transaction (Business) Rules, he has communicated the order of according the sanction by issuing Ex.P-61 order.
8.3. During cross-examination, Pw4 has deposed that he has received the documents from the IO in five volumes and from those documents he has ascertained that the assets, expenditure and income of the accused. He has specifically denied the suggestion to the effect that along with the requisition and the documents, the IO has sent a draft sanction order. He specifically denied that when he has verified the income tax documents of the accused No.2 and 3 and schedule explanation, came to know that they are having sufficient sources of income. But the truth is that the income tax documents were either collected by the IO or placed before the sanctioning authority and the accused has tried to mislead the witness can be inferred. The witness has specifically disputed the suggestion of the defence counsel that the documents produced by the IO were not placed before the Hon'ble Home Minister. He further denied that without verification of the documents, he has issued Ex.P-61 sanction order.
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Spl.C.C.No.232/2009 8.4. The rule regarding grant or refusal of sanction must be preceded by application of mind on the part of the appropriate authority. If the accused can demonstrate such an order is suffering from non-application of mind, the same may be called in question during the trial. In the case on hand, it is not the contention of the accused that the Hon'ble Home minister is not the competent authority to remove him from service or to accord sanction. Therefore from the facts of the case and evidence the Hon'ble Home minister is the authority competent to accord the sanction is deemed to have been admitted and it is proved.
8.5. In this regard, this Court finds it proper to refer the judgment reported (2013) 8 SCC 119 in the case of State of Maharastra Vs. Mahesh G.Jain. In the said case, the Hon'ble Supreme Court held that the adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. In Mohd. Iqbal Ahmed vs State of A.P. reported in (1979)4SCC 172, the Hon'ble Supreme Court held that an order of valid sanction can be proved by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction or by adducing evidence to show that the facts were placed before the sanctioning authority. In the case on hand, the prosecution has discharged its burden by adducing the evidence by showing that all the facts 12 12 Spl.C.C.No.232/2009 were placed before the sanctioning authority and after recording the satisfaction it has accorded the sanction.
8.6. In another judgment reported in (2012) 3 SCC 64 in the case between Subramanian Swamy Vs. Dr.Manmohan Singh case the Hon'ble Supreme Court held that the grant or refusal of sanction is not a quasi
-judicial function. What is required to be seen by the competent authority is whether the facts placed by the investigating agency prima-facie disclose the commission of an offence by the public servant. If the competent authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant the sanction. The competent authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true.
8.7. In the facts of the case on hand during the cross-examination of Pw.4, the accused has failed to discredit the testimony of the witness. The evidence placed on record by the prosecution show that after verification of all the documents, the Hon'ble Home Minister has accorded the sanction and thereafter Pw-4 being the Under Secretary to the Government has communicated the according of the sanction by issuing Ex.P-61 order. In Section 114(e) of Indian Evidence Act there is presumption that the official acts have been regularly performed. In the case when the Government 13 13 Spl.C.C.No.232/2009 has accorded the sanction, the burden is heavy on the accused to show by rebutting the said statutory presumption by placing sufficient evidence.
8.8. From the facts of the case and the evidence of Pw-4 and Ex.P61 order the prosecution has proved that the investigating agency had placed all the documents before the sanctioning authority. The prosecution has further proved that from the evidence of Pw-4 all the documents were placed before the Hon'ble Home Minister and after verifying the documents and recording satisfaction, he has accorded the sanction. The accused has failed to substantiate his contention that the sanction has been accorded mechanically. Therefore, this court can hold that the Government has accorded the valid sanction and in pursuance the prosecution has obtained Ex.P-61 order. For the aforesaid reasons, point No.1 is answered in affirmative.
Point No.2 and 3 :
9. Since the above points are interrelated and in order to avoid repetition of reasons and for brevity both these points are taken up together for determination.
The Complainant and the Investigating Officer is the same person.
10.1. Among the prosecution witnesses examined P.W.1 V.Shekar is the Investigation Officer (in short the 'IO'). He deposed that on 10.3.2006 he has submitted 14 14 Spl.C.C.No.232/2009 Ex.P1 source report to the Superintendent of Police, Karnataka Lokayukta, Bengaluru regarding the assets, income and expenditure of the accused. In pursuance, the Superintendent of Police has passed Ex.P2 order and Ex.P-3 FIR came to be registered against the accused. Pw-1 has obtained search warrant from the court and in the presence of the witnesses he has conducted the house and bank locker search.
10.2. It is the further contention of the defence that Pw.1 the IO is the officer of 1981 batch and the accused No.1 is the officer of 1977 batch. Secondly, Pw-1 himself is the IO and the complainant in the case and hence it caused prejudice to the case of the accused. The learned defence counsel in support of his argument has relied upon the judgment of the Hon'ble Supreme Court reported in (2018) 17 SCC 627 in the case of Mohanlal Vs. State of Punjab. But it is proper to mention here that the aforesaid judgment is no longer a good law. In the subsequent judgment reported in (2020) 10 SCC 120 in Mukesh Singh Vs. The State, the Hon'ble Supreme Court held that there is no specific bar against the informant/complainant investigating the case. The accused has to establish and prove the bias, prejudice and unfair investigation. In the said judgment, the Hon'ble Court held that the contrary decision of the Court in the Mohanlal case is not good law and specifically overruled it. In the case on hand, during 15 15 Spl.C.C.No.232/2009 cross-examination of Pw1, the accused has failed to make out on account of Pw1 himself is the complainant and investigating officer caused prejudice to his case. Therefore the aforesaid contention of the accused that Pw-1 is the complainant and investigating officer and hence caused prejudice to his case is rejected. The compliance of Section 17 of the PC Act:-
11.1. The prosecution has produced Ex.P2 order passed by the Superintendent of Police by invoking Section 17 of the PC Act. The proviso appended to Section 17 of the PC Act provides that an offence referred to in clause (e) of Sub-section (1) of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. Therefore, there is a statutory requirement regarding authorization by the Superintendent of Police in favour of an officer to enable him to carry out the investigation in terms of Section 17 of the PC Act.
11.2. In the case on hand, admittedly, PW1 has submitted Ex.P1 source report to the Superintendent of Police. He has made an endorsement and returned it to Pw1 for registering the case and to take up further investigation. As per Ex.P2 on 13.3.2006, the Superintendent of Police has passed an order stating that there is prima-facie case is made out against the accused No.1 warranting investigation for the offence under Section 13(1)(e) read with Section 13(2) of the PC Act.16 16
Spl.C.C.No.232/2009 In the said order there is a specific reference regarding Govt. Notifications dated 26-5-1986, 6-2-1991 and 2-11- 1992, the police inspectors of Karnataka Lokayukta have been authorised to investigate the cases registered under Section 13(1)(e) of the P.C. Act.
11.3. In view of the above facts and circumstances, in Surya Sankaran Karry case relied by the accused the Hon'ble Court has drawn the adverse inference for non production of order passed under Section 17 of the PC Act. But the said ratio is not applicable here because in the case on hand the prosecution has produced Ex.P-2 order passed by the Superintendent of Police.
11.4. In this connection it is proper to refer the judgment reported in (2011) 4 SCC 402 in the case of Ashok Tshering Bhutia Vs. State of Sikkim, the Hon'ble Supreme court held that a defect or irregularity in investigation however serious, has no direct bearing on the competence or procedure relating to cognizance or trial. Therefore, where the cognizance of the case has been taken and the matter has proceeded to termination, the invalidity of the investigation does not vitiate the result unless there is miscarriage of justice. The defect or irregularity in investigation has no bearing on the competence of the court or procedure relating to cognizance or trial. In the consequence, the accused cannot be allowed to contend that Pw-1 was not competent to register the case or to conduct the 17 17 Spl.C.C.No.232/2009 investigation when the matter reached for decision on merits.
11.5. The Hon'ble High Court of Karnataka in the judgment reported in ILR 2009 KAR 2470 in L.C.Hussain Vs. State of Karnataka held that the police inspectors are authorized to conduct the investigation in respect of the offences prescribed under Section 17 of the PC Act. Therefore, in the case on hand, from the evidence of Pw- 1 and Ex.P2 order, the prosecution has proved that the investigation was conducted in compliance to the mandatory requirement as prescribed under Section 17 of the PC Act.
Search and Seizure 12.1. Pw-1 in his evidence has deposed that after registering the case and on submission of Ex.P3 FIR to the Hon'ble court, he has obtained Ex.P4 search warrant, secured presence of three witnesses. The prosecution has examined Pw2 S.Narayana M.C. and other two witness to the search are Mr. Ravikumar and Ms. Kumari A.T. Radha. Pw-1 further deposed that on 14.3.2006 he has conducted the raid on the house of the accused situated at Sanjay Nagar Bengaluru and search in the house and seized the cash of Rs.1,11,500/-, ascertained the value of the household articles, gold ornaments and silver articles. He further deposed that on the same day, the bank locker appearing in the name of the accused No.1 and 2 was also searched and he prepared the list regarding gold and cash found in the locker as per search 18 18 Spl.C.C.No.232/2009 mahazar. He further deposed regarding seizure of the documents found during house search and drawing of house search mahazar.
12.2. Pw-2. Satyanarayana M.C. in his evidence has deposed that on 14-3-2006 he had accompanied with the police during the search in the house of the accused and also during the bank locker search. He was present throughout the entire search proceeding and affixed his signature in Ex.P-9 and 10 mahazar. During the cross- examination of the witness, his presence at the time of the search was not disputed by the accused. From the evidence of Pw.1 and 2 the prosecution has proved the fact of drawing of Ex.P-9 house search mahazar and Ex.P10 bank locker search mahazar. The accused during the trial has not denied the drawing of aforesaid mahazars but he has disputed the value of certain articles fixed by the IO and its ownership. Therefore the prosecution has proved drawing of Ex.P-9 and 10 search mahazar from the evidence of Pw-1 and 2.
13.1. Before touching upon the merits of the case to substantiate the charge under Section 13(1)(e) of the PC Act, the ingredients to be established by the prosecution are;
a) Accused is a public servant.
b) The nature and the extent of pecuniary resources or property were found in his possession or any person on his behalf.
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Spl.C.C.No.232/2009
c) what were the known sources of income and
d) That the property/resources found in possession of the accused or in person on his behalf were disproportionate to his known source of income. After proving these requirements by the prosecution the burden for satisfactory accounting for possession of such resources of property shifts to the accused.
13.2. In this connection in the judgment relied by the accused in M. Krishna Reddy case the Hon'ble Supreme Court held that reading of Section 13(1)(e) of the PC Act transpires that it is not the mere acquisition of property that constitutes an offence under the provisions of the Act, but it is failure to satisfactorily account for such possession, that makes the possession objectionable as offending the law.
13.3. In the judgments relied by the accused referred supra in K.Veeraswamy case, Vasantharao Guhe case, Dnyaneshwar Laxman rao case, Sajjan Singh case and Pollanji Darashwa walla case and the Hon'ble High Court of Karnataka in Babappa case held that the burden lies on the prosecution to prove that the public servant possess disproportionate assets. The charge of criminal misconduct, possession of assets disproportionate to his known sources of income has to be proved by the prosecution and after such discharge if the accused cannot satisfactorily account disproportionate pecuniary resources or property from lawful source of income, he 20 20 Spl.C.C.No.232/2009 would be held guilty. The prosecution has to prove foundational facts even in cases burden of proof is on the accused. There is deliberate departure from the principle of criminal jurisprudence that the burden of proving the guilt of the accused lies on the prosecution and after proving the facts, the burden shifts to the accused and he has to prove he is not guilty of the offence and if two views are available one which is favourable to the accused has to be accepted.
13.4. In the judgments referred supra in Kailash Gour and Dataram singh cases, the Hon'ble Supreme Court held that the principle of presumption of innocence is the fundamental principle of criminal jurisprudence and an accused is presumed to be innocent till he is found guilty. In the above referred cases the charge sheet was filed against the accused for the offence punishable under the provisions of the Indian Penal Code and Negotiable Instrument Act.
14. After keeping in mind the above ratio laid down by the Hon'ble Courts, the next question to be decided is whether the prosecution from the documentary and oral evidence placed on record has established the fact that the properties as mentioned in the charge sheet are the assets of the accused acquired during the check period. The prosecution has alleged in the charge sheet that during the check period from 1.8.1991 to 14.3.2006 the 21 21 Spl.C.C.No.232/2009 accused has acquired the following properties and they are considered as his assets:
Table No. I Sl.
Description of assets Value (in Rs.)
No.
Immovable properties
Site No.5, House List No. 317/1c,
V.P.Katha No.116, Halage
1 Devarahalli, Bengaluru North on 58,000/-
26.8.91 in the name of his
mother Smt.Jafir Bi.
2 Acres and 4 Guntas of land in
Sy.No.21/2 of Chikkabettahalli,
2 Bengaluru North, on 30.09.94 in 1,90,000/-
the name of his father Sri.Shaik
Bale
Site No.3, Katha No.582, S/3,
Kodigehalli, Yelahanka Hobli,
3 Bengaluru North Taluk, in the 1,50,000/-
name of his wife Smt.Sartaj
Begaum.
Site No.21A, in Sy.No.102 of
Cholanayakanahally, on
4 1,00,000/-
29.07.1998 in the name of his
father Sri.Shaik Bale
Site No.33, at Sy.No.9/3, Katha
No.306/33 Chikkabettahalli,
5 Yelahanka Hobli, Bengaluru North 1,16,000/-
on 1.10.99, in the name of his
father
22
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Spl.C.C.No.232/2009
Site No.561, P2, Society No.4714,
6 Ideal Homes, Mysore Road, 60,000/-
Kenchanahally, Bengaluru
Site No.21B, in Sy.No.102,
7 Cholanayakanahalli, Bengaluru 2,17,000/-
North Taluk
4 sites bearing Nos 42, 43, 78
and 79 each measuring 30'x4-'
8 in Kenchanahalli, Yelahanka 2,40,000/-
Hobli, Bengaluru in the name of
his wife Smt.Bilkish Jahan
Site measuring 82'x40' at No.18,
4th Cross, G.M.Ramakrishnappa
Layout, Ward 100, Geddalahalli,
9 Bengaluru North Taluk, in the 9,85,000/-
name of his wife Smt.Bilkish
Jahan and father Sri.Shaik Bale
on 20.10.2003
Flat No.401, 4th Floor, Sanjay
Palace, 1st Cross, AECHS (KEB
10 34,50,000/-
Layout) Sanjay Nagar, Bengaluru
in the name of wife.
Movable properties
11 House hold articles 1,24,845/-
Gold Jewels weighing 1403
12 grams and 500 mili grams 9,82,450/-
Total cash possessed by the AGO
13 3,84,500/-
in the residence and bank locker
23
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Spl.C.C.No.232/2009
S.B.Account in State Bank of
14 India, Airforce station, Jalahalli in 1,145-87
Account No.10006502013
SB Account in Syndicate bank,
15 Basaveshwara Road, Bengaluru 53,109.04
Account No.20010059801.
Balance amounts in S.B. Account
No. 211010010691, ING Vysya
16 7,289.41
Bank, Dinnur Road, Bengaluru.
Balance amounts in S.B. Account
No. 211010010053, ING Vysya
17 3519.13
Bank, Dinnur Road, Bengaluru.
Balance amounts in S.B. Account
No.4247000100046363 Punjab
18 41,744/-
National Bank.
Balance amounts in S.B. Account
No.31353, Canara Bank, Gokula
19 Branch, Bengaluru in the name 33,017/-
of his father Sri.Shaik Bale.
Balance amounts in joint S.B.
Account No.150557, Canara
20 Bank, Town Hall Branch, 3,749-55
Bengaluru.
Balance amounts in S.B. Account
No.25964, Syndicate Bank,
Ganganagara Branch, Bengaluru
21
in the name of his father 1,256/-
Sri.Haaji Shaik Bale.
Total 72,02,625
24
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Spl.C.C.No.232/2009
15.1. According to the prosecution, the accused No.1 has purchased the property shown in Sl.No.1 site No.5, house list No.317/1C VP Khata No.116 situated at Halagedvara halli, Bengaluru on 26.8.1991 in the name of his mother deceased accused No.4. The prosecution has produced Ex.P-33 copy of the registered sale deed dated 26.8.1991 executed by Mr. G.Channarayappa in favour of Smt.Jafir B. for a sale consideration of Rs.58,000/- and the said sale deed was registered as document No.3152/91-92. The original sale deed and tax demand extract were seized during Ex.P-9 house search mahazar and it is marked as Ex.P-71 (page 200-205).
15.2. The prosecution has considered the above said property as the asset of the accused No.1 on the ground that the deceased accused No.4 was a house wife and she was not having any independent source of income to acquire the said property. Pw-1 in his evidence at para-12 has deposed regrading securing copy of Ex.P-33 sale deed from the office of the Sub- registrar. In para No.21 he further deposed that the accused No.3, the father of accused No.1 was a retired Assistant Sub-inspector of police and he was not having income except the meager amount of pension and the accused No.1 has acquired property in the name of his parents.
15.3. According to the contention of the accused No.1 in his defence that the accused No.3 his father had 25 25 Spl.C.C.No.232/2009 purchased the aforesaid site No.5 in the name of his wife the accused No.4. During cross-examination of Pw1 in para-31, the witness has admitted that he has either secured any evidence to prove the presence of the accused No.1 during Ex.P33 sale transaction or the accused No.1 has purchased the said property in the name of his mother accused No.4. It is specifically suggested to Pw-1 in para-34 of the cross-examination that he has wrongly considered the said property purchased by the accused No.3 in the name of his wife, the accused No.4 as the asset of the accused No.1. But the witness has specifically denied the said suggestion tendered to him.
15.4. The prosecution even though has cited the vendor in Ex.P-33 sale deed Mr. G.Channarayappa as Cw.60 in the charge sheet, but he was not examined. The vendor in Ex.P33 sale deed is the competent person to depose regarding who had made the payment of sale consideration and who is the actual purchaser of the property. In this regard the prosecution has failed to place best piece evidence.
16.1. As per the charge sheet allegations, the accused No.1 has purchased the aforesaid property in the Table-I Sl.No. 2, 4 to 7 in the name of the accused No.3. The IO has considered all these properties as the assets of the accused No.1. According to the prosecution, the property measuring 2 acres 4 guntas of land in Sy. No. 26 26 Spl.C.C.No.232/2009 21/2 of Chikkabettahalli Bengaluru was purchased in the name of the accused No.3. In order to prove the charge, the prosecution has produced Ex.P-28 copy of the sale deed secured from the office of Sub-registrar, Yelahanka. The original sale deed and RTC extracts were seized during the house search and it is marked as per Ex.P71 (page 35 to 48). As per the recitals of the said sale deed, the deceased accused No.3 had purchased the property from Mr. Syed Mastan for a sale consideration of Rs.1,90,000/- and the purchaser was shown to have paid the entire sale consideration relating to the said transaction.
16.2. According to the IO, the property mentioned in Sl.No.4 of the aforesaid Table, site No.21/A in Sy.No.102 of Cholanayakanahalli village was purchased as per registered sale deed dated.29.7.1998 in the name of the accused No.3 is the asset of the accused No.1. In order to prove the charge, the prosecution has produced Ex.P- 24 copy of the sale deed and the original sale deed dated 29-7-1998, original rectification deed dated 25-02- 2003 marked as Ex.P71 (page No.98 to 109). The original documents were seized from the house of the accused during Ex.P-9 house search mahazar. As per the said document one Mr. Muni Nanjappareddy had executed the sale deed in favour of the accused No.3 for a sale consideration of Rs.1,00,000/-. The recitals of the sale deed further show that, the purchaser, the accused No.3 had paid the sale consideration to the vendor. Ex.P71 27 27 Spl.C.C.No.232/2009 (page No.106 to 108) the rectification deed dated 25-02- 2003 came to be executed by the vendor for rectification of the discrepancy in the boundaries of the property purchased as per the above referred sale deed dated.27.9.1998.
16.3. According to the IO, the property mentioned in Sl.No.7 of the aforesaid schedule site No.21/B in Sy.No.102 of Cholanayakanahalli village in the name of accused No.3 as the asset of the accused No.1. In order to prove the charge, the prosecution has produced the original sale deed dated 25-02-2003 and it is marked as Ex.P71 (page No.110 to 117) and as per the recitals of the said document, one Mr.V.Gundappa represented by his GPA holder Muninanjappa Reddy had executed the sale deed in favor of the accused No.3 for a consideration of Rs.2,17,000/-. The recitals of the sale deed show that, the purchaser, accused No.3 had paid the sale consideration to the vendor. Ex.P20 is the certified copy of the registered sale deed collected by the IO during the investigation from the office of the Registrar, Sheshadripuram, Bengaluru.
16.4. The prosecution has examined the vendor in the above referred two sale deeds dtd.27.9.1998 and dtd. 25-02-2003 Mr.Muninanjappa Reddy as PW18. In his evidence he has deposed that the accused No.1 and 3 came in order to purchase the property and in furtherance, he had executed the sale deed in respect of 28 28 Spl.C.C.No.232/2009 two site property. The prosecution has treated the witness as hostile and the statement recorded by the police during investigation under Section 161 of the Cr.P.C. was denied by the witness and it was marked as Ex.P74. The prosecution during cross-examination could not elicit from the mouth of the witness that the accused No.1 has purchased the aforesaid property in the name of his father accused No.3. The prosecution could not show that the accused No.1 has paid the entire sale consideration but the sale deed was nominally registered in the name of the accused No.3. As per the evidence of Pw18, he had received the sale consideration from the accused No.3. The accused got examined Dw.15 one Mr.D.Narayana who has affixed his signature to the said sale deed as a witness.
16.5. The prosecution has considered the property in Sl.No.5 site No.33 at Sy.No.9/3 situated at Chikkabetahally, Yelahanka, Bengaluru purchased in the name of the accused No.3 for a consideration of Rs.1,16,000/- as the asset of the accused No.1. Ex.P-26 is the certified copy of the sale deed secured by the IO during investigation from the office of the Sub-registrar, Yelahanka, Bengaluru and one Mr.A.K.Mohammed is the vendor. The prosecution has produced the original sale deed seized during the house search mahazar and it is marked Ex.P71 (page No.193 to 199). The accused in order to prove his defence got examined Dw.17 by name 29 29 Spl.C.C.No.232/2009 Mr. Chandrashekar who was the witness to the aforesaid sale deed and he has identified his signature appearing in Ex.P71 original sale deed. Dw.17 in his examination-in- chief has deposed that he is having acquaintance with the accused No.3 and the accused No.3 had purchased the property from one Ashok. He further deposed that the accused No.3 has paid the sale consideration to the vendor. As per his evidence the stamp duty and registration fees was paid by the vendor. During cross- examination of the witness on behalf of the prosecution, he deposed that at the instance of Ashok, he went to the office at the time of registration of the sale deed and has affixed his signature as a witness. Mr. A.K. Mohammed represented by his GPA holder R. Ashoka has executed the said sale deed in favour of the accused No.3. During cross-examination of Dw.17, the prosecution has failed to elicit any material admission to show that the accused No.1 in the name of accused No.3 has purchased the said property and has paid the entire sale consideration.
16.6. The IO has considered the property mentioned in Sl.No.6 site No.561, P2 situated at Ideal homes Mysore road, Kenchanahally, Bengaluru appearing in the name of the accused No.3 as the asset of the accused No.1. According to the prosecution, the accused No.1 had purchased the above said property in the name of his father by making payment of the entire amount of sale consideration and hence the said property has to be 30 30 Spl.C.C.No.232/2009 considered as the asset of accused No.1. The prosecution has produced Ex.P-71 sale deed dated 24.2.2003 (page No.138 to 144) (the said document is also marked as Ex.P-63) the original lease cum sale agreement executed by the President of Ideal Homes Co-operative Building Society Limited Bengaluru in favour of the accused No.3 for a consideration of Rs.60,000/-. During investigation the IO has secured Ex.P-32 copy of the aforesaid lease cum sale agreement from the office of the jurisdictional Sub-registrar. The prosecution has examined Pw-10 Mr.C.M.Subbaiah who was the President of the aforesaid Ideal Homes Society and as the President of the said Society he had executed Ex.P63 registered sale deed in favour of the accused No.3. Pw-10 has not deposed evidence that on behalf of the accused No.3, the accused No.1 has paid the sale consideration.
16.7. In order to prove the defence, the accused No.1 was examined as Dw.40 and his two brothers by name Mr. Habeeb Ur Rehman was examined as Dw.35 and Mr. Nissar Ur Rehman was examined as Dw-34. Dw- 34 has been examined to prove when he was working abroad, he used to send money to his father. The deceased accused No.3 was working as the Assistant Sub Inspector of police and he was retired in the year 1976 from the department.
16.8. Dw.35 Mr. Habeeb Ur Rehman is a retired Tahsildhar and in his evidence he has deposed that his 31 31 Spl.C.C.No.232/2009 father the deceased accused No.3 was receiving rental income and he was also owning the landed property at Raichur. Dw.35 has produced Ex.D42 to 50 bank pass books and Ex.D51 pass book appearing in the name of the accused No.4. As per Ex.D51 as on 18.5.2005, a sum of Rs.80,993/- balance was outstanding in the said bank account appearing in the name of the accused No.4 16.9. Dw.33 Dr.Mallappa was examined on behalf of the accused and he is the retired Agricultural Director and the author of Ex.D27 certificate. As per his oral evidence and Ex.D27 documentary evidence, the accused No.3 and 4 have acquired net agricultural income of Rs.5,08,940/-. During cross-examination of Dw.33, the prosecution has not disputed the fact that the accused No.3 and 4 were owning the agricultural property. Dw-33 has deposed that Dw-35 has collected the said certificate and copy of the report is marked as Ex.D-27. Since Dw-33 is the author of the report, the objection raised by the prosecution regarding non- production of the original report is dispensed and the objection is overruled.
16.10. Dw.34 the brother of accused No.1 Mr. Nissar Ur Rehman in his evidence has deposed that on 06-10- 1994 he has credited a sum of Rs.90,000/- to the bank account of accused No.3. and he has produced Ex.D21 pass book. But the document reveals that the amount was credited to the account of the accused No.3 on 32 32 Spl.C.C.No.232/2009 6.10.1994 and not on 6.10.1999 as deposed by the witness. However from the said document, the amount has been deposited to the account of the accused No.3 is proved from the evidence.
16.11. Dw.35 Mr. Habib-Ur-Rehaman in his evidence, deposed that after retirement in the year 1978, the accused No.3 was residing with him at Raichur. Dw.35, was working as the Tahsildar and he has produced his Annual Property Returns (in short as 'APR'). In Ex.P34 (page No.21) APR of Dw.35 for the year 1990-91 to 2005- 06 he had declared that the agricultural property appearing in the name of his father, the accused No.3. During cross-examination, the prosecution has not disputed this document or the fact of the accused No.3 was residing with Dw-35. It is also not contended by the prosecution that the APR submitted by Dw.35 as per Ex.P34 are not valid documents. It is not the case of prosecution that Dw.35 has concocted the said document in order to assist the case of the accused.
16.12. Dw.40 the accused No.1 in his evidence para-70, 71, 73 to 76 has deposed that his father the accused No.3 had purchased the aforesaid property. According to the accused, he has not made any investment to purchase the above referred property appearing in the name of the accused No3 and 4 and the IO has wrongly considered the same as his assets. It 33 33 Spl.C.C.No.232/2009 is further argued that the IO during the investigation has not examined the accused No.3 and 4 or the vendors of the property before coming to the conclusion that those properties have been purchased by the accused No.1 in the name of his parents the accused No.3 and 4.
16.13. The accused have produced Ex.D43 to 48 and Ex.D51 bank pass book appearing in the name of the deceased accused No.3 in order to prove his income. The entries appearing in the aforesaid pass book reflects that there was continuous financial transaction in all those accounts and the accused No.3 was maintaining substantial balance in his bank accounts. Therefore, the contention of the prosecution that except the pension amount, the accused No.3 had no other source of income is not correct. Ex.D51 the pass book is appearing in the name of the accused No.4 for the period 1999 to May- 2005. The said document also show that she had also maintained substantial balance of Rs.1,25,000/- in her account as on 26.4.2004.
16.14. The accused have also produced Ex.D78 and as per its contents, the deceased accused No.3 had received compensation of Rs.2,66,746/- through cheque in connection with acquisition of his property by the KIADB. It is true, Ex.D78 document was marked subject to the objection raised by the learned Public Prosecutor regarding its admissibility. The accused has not 34 34 Spl.C.C.No.232/2009 produced any other authenticated document to rectify the discrepancy and to overcome the objection raised by the prosecution.
16.15. Ex.D33 is the general power of attorney (GPA) dated 27.2.1991 executed by Mr. Mohammed Musa Qureshi in favour of the deceased accused No.3. As per the said document, the attorney holder/accused No.3 was authorised to receive the building rent from the tenants. Ex.D-49 is the pass book appearing in the name of the accused No.3 from 21.3.1991 to 25.2.1993. The entries appearing in the said pass book show that in each month the fixed amount was regularly deposited to the said account. Therefore, there is every possibility that as the GPA holder of Mohammad Musa Qureshi through Ex.D33 document, the accused No.3 was regularly receiving the rent from the tenants.
16.16. Ex.D76 is the bank account extract issued by Canara bank, Gokul Branch, Bengaluru appearing in the name of the accused No.3 for the period from 1.1.1997 to 2.3.2006. The entries appearing in the said account extract also show that the tenants were regularly depositing the rent amounts to the said account is more probable.
16.17. The accused No.1 has produced Ex.D-52 an agreement of sale dated 10-10-2005 entered for Rs.6 lakhs, and Ex.D-56 an agreement of sale for 35 35 Spl.C.C.No.232/2009 consideration of Rs.15 lakhs. These agreements of sale are unregistered. In Ex.D52 the deceased accused No.3 has agreed to sell the property in favour of Mr. Craig Jensen and as on the date of agreement shown to have received Rs.3 lakhs as part sale consideration. As per Ex.D56 agreement of sale dtd.2.2.2002 the deceased accused No.4 has agreed to sell the property in favour of Mr. Rehman Khan for a consideration of Rs.15 lakhs and as on the date of agreement, shown to have received Rs.10 lakhs advance amount.
16.18. As per Ex.D53 registered sale deed dated 03-6-2006 the deceased accused No.3 has alienated the property in favour of Mr. S.Murthy for a consideration of RS.3,90,000/-. It is true, the aforesaid property has been alienated after the check period. But the aforesaid property was appearing in the name of the accused No.3 and it was purchased as per sale deed dated 16-12-2003 but it is not included in the charge sheet as asset of the accused. The above documents produced by the accused are prima-facie sufficient to establish the fact that the deceased owned immovable property and he was having independent source of income.
16.19. According to the evidence of accused No.1, as per Ex.D21 his brother Dw.34 Nishar Ur Rehman has deposited a sum of Rs.90,000/- through cheque in favour of his father/ accused No.3. In Ex.D28 pass book there 36 36 Spl.C.C.No.232/2009 are six entries regarding payment of Rs.2,47,500/- in favour of accused No.3. In Ex.D-29 pass book there are two entries regarding payment of Rs. 36,000/- in favor of the accused No.3. Thus from Ex.D-21,28 and 29 pass books entries the payment of Rs.3,73,500/- in favour of accused No.3 is proved from the documentary evidence. The prosecution has also produced Ex.P-51 pension documents of the accused No.3 for the period 1.8.1991 to 14.3.2006. As per the said document, he had received total amount of pension of Rs.5,34,120/-. The evidence placed on record by the accused show that the accused No.3 had other properties.
16.20. Ex.D34 is the APR submitted by Dw.35 and during evidence he deposed that he had declared the properties appearing in the name of his father the deceased accused No.3. Dw.-40 during cross- examination in para-118, 122 and 124 has admitted that except the aforesaid APR, there are no documentary evidence to prove the income of the deceased accused No.3. The witness has admitted that he has not produced the documents submitted to Income Tax department pertaining to his deceased father. But it is not the burden of the accused No.1 to prove that the accused No.3 had sufficient income to purchase the property appearing in his name. It is for the prosecution to prove by placing positive evidence that the accused No.1 has invested his disproportionate assets and had purchased the property 37 37 Spl.C.C.No.232/2009 in the name of the accused No.3 and those properties are benami properties.
16.21. It is necessary to refer the judgments relied by the accused, the Hon'ble Supreme Court in Krishnanda Agnihotri case and the Hon'ble High Court of Karnataka in Siddappa poojari case held that the burden of showing the particular transaction is benami is on the prosecution and burden has to be discharged by adducing direct or circumstantial evidence. Mere show of circumstances create suspicion is not sufficient. In benami transactions it is the burden on the prosecution to prove the charge beyond reasonable doubt and without such proof the burden cannot be shifted to the accused. But in the facts and circumstances for the above said reasons, the prosecution has miserably failed to prove that the accused No.1 in the name of his parents, the accused No.3 and 4 had purchased the immovable properties.
16.22. Therefore, from the aforesaid oral and documentary evidence and other attending circumstances as discussed the prosecution has failed to prove that item No. 1, 2, 4 to 7 in table-I are the property of accused No.1 purchased in the name of his parents, the accused No.3 and 4. On the other hand the accused No.1 and 2 are able to show that the deceased accused No.3 and 4 were also having other sources of income, they were having other children and receiving 38 38 Spl.C.C.No.232/2009 substantial amount of money to their bank account. Hence, the conclusion of the IO in considering the aforesaid properties in Sl. No. 1, 2, and 4 to 7 of the Table as the assets of the accused No.1 is liable to be rejected and accordingly rejected.
17.1. The IO has considered site No.3 mentioned in Sl.No.3 of the Table situated at Kodigehally, Yelahanaka Hobly, Bengaluru as the asset of the accused. He has produced Ex.P29 copy of the registered sale deed secured during investigation from the office of the Sub- registrar, Yelahanka. During house search, the IO has seized the original sale deed and it is marked as EX.P71 (page No 49 to 56). The said sale deed was executed in favour of Smt.Sartaj, D/o Syed Taj, the accused No.2 for a valid consideration of Rs.1,50,000/-.
17.2. According to the evidence of the accused No.2/Dw.42 in para-10, she has deposed that Dw.28 Ms. Nilofar has paid her Rs.1,60,000/- in order to purchase the above referred property for Rs.1,50,000/- and the balance amount was utilized towards payment of the registration fee. Dw.28 Ms.Nilofar is the wife of Dw-34 and the accused No.1 is her brother-in-law. In her evidence, she has deposed that her husband when he was working abroad he was sending Rs.1 lakh per month for family expenses. The accused No.2 has disclosed that she is not having money to purchase the aforesaid site property and therefore she had paid Rs.1,60,000/- to the 39 39 Spl.C.C.No.232/2009 accused No.2. During cross-examination of Dw.28, it is elicited that she does not have any documentary evidence to show for having paid Rs.1,60,000/- to the accused No.2. It is further elicited from her mouth that there is no documentary evidence such as bank pass book to show that she had withdrawn Rs.1, 60,000/- from her bank account in order to make payment in favour of the accused No.2 or to the seller of the property. She has specifically admitted that till the date of her evidence on 30.4.2018, the accused No.2 has not repaid Rs.1,60,000/- borrowed for purchasing the aforesaid property from the date of sale transaction 23.1.1995.
17.3. In the re-examination, Dw.28 has tried to introduce a new defence that she had invested the money in the business of her father and advanced Rs.1,60,000/- to the accused No.2 out of the said amount. The accused has produced Ex.D19 to 23 bank account pass books and in those documents there is absolutely no corresponding entries either for withdrawal or for payment of Rs.1,60,000/- immediately before execution of Ex.P-29 sale deed dtd.23.1.1995.
17.4. It is the specific evidence of Dw.42 during her cross-examination in para-29 that there is no documentary evidence to prove she had received Rs.1,60,000/- from Dw.28 to purchase the site property situated at Kodigehally. Therefore, the evidence, facts 40 40 Spl.C.C.No.232/2009 and other circumstances show that the evidence of Dw.28 that she had advanced Rs.1,60,000/- in favour of the accused No.2 and financially assisted her in order to purchase the property is unbelievable. Hence, the accused No.2 has failed to prove that the aforesaid site property was purchased by borrowing money from Dw.28. In the result this court has arrived to the definite conclusion that the accused No.2 has purchased the aforesaid property by making payment of sale consideration of Rs.1,50,000/- and hence the IO is justified in considering the said property as the asset of the accused No.1.
18.1. The IO has considered 4 sites situated at Kenchnanahally, Yelahanka Hobly, Bengaluru appearing in the name of the accused No.2 as the assets of the accused No.1. The prosecution has seized the original sale deed marked as Ex.P71 (page No.125- 131) pertaining to the aforesaid property on 14.3.2006 during the house search mahazar. The IO during the investigation has secured Ex.P-27 certified copy of the sale deed from the office of the Sub-Registrar, Yelahanaka. As per the recitals of the said sale deed, the accused No.2 had paid the entire sale consideration of Rs.2,40,000/- in favour of the vendor.
18.2. Dw.42 in her evidence in para-16 has admitted that she had purchased the aforesaid property 41 41 Spl.C.C.No.232/2009 as per registered sale deed from Mr. Mariyappa for valid consideration of Rs.2,40,000/-. According to her contention, she had borrowed loan of Rs.2,40,000/- from Dw-7Abubekar. Dw.7 in his evidence has deposed that in 2003 he had advanced Rs.2,50,000/- to the accused No.2 and in 2007 she had repaid the said amount.
18.3. During cross-examination, Dw.7 has admitted that he is not aware the purpose for which the accused No.2 had borrowed the loan. Even though the alleged loan was advanced by charging the interest, no documents executed by the accused No.2 in favour of the creditor are produced before the court. The accused have not produced any documents to prove the loan transaction. Hence, evidence of Dw. 42 that she had borrowed loan from Dw.7 is unbelievable. In the result, the conclusion of the IO in considering the above property as the asset of the accused No.1 is proper. Accordingly, the aforesaid property purchased by the accused No.2 for Rs.2,40,000/- is considered as the asset of the accused No.1.
19.1. The IO has considered property comprised in site measuring 82X40 situated at Ramkrishna Layout, Geddalahally, Bengaluru in the name of the accused No.2 and 3 purchased on 20.10.2003 as the asset of the accused No.1. The prosecution has produced the original sale deed dtd.20.10.2003 marked as Ex.P71 (page 156 to 42 42 Spl.C.C.No.232/2009
163) executed by Sri. Mithalal jointly in favour of the accused No.2 and 3. As per the recitals of the said sale deed out of the sale consideration Rs.9,85,000/-, Rs.6,85,000/- was paid through cheque drawn on Canara Bank, Town Hall, Commercial Centre branch, Bengaluru.
19.2. Dw.40 in his evidence para-4 has deposed that his wife and father have jointly purchased the above said site property and his wife had borrowed loan of Rs.3,80,000/-, Rs.45,000/- and Rs.95,000/- from Dw-4 Sri. Chandrashekar. The accused further deposed that the IO has considered only Rs.3,80,000/- and Rs.45,000/- as income from loan and not considered Rs.95,000/- borrowed from Dw-4 Chandrashekar. In para-10 Dw.40 further deposed that his father, the accused No.3 had invested Rs.4 lakhs to purchase the above said property.
19.3. Dw.42 in her evidence para-1 deposed that herself and her father-in-law, the accused No.3 had purchased the above referred property from Sri. Mithalal. She further deposed regarding borrowing of loan of Rs.6,15,000/- from Dw-4 Chandrashekar and Rs.4,25,000/- through cheque and Rs.95,000/- through cash.
19.4. The accused got examined the aforesaid creditor Mr. Chandrashekar as Dw.4 and in his evidence he deposed that he is a signatory to Ex.P-71 above referred sale deed dtd.20.10.2003. He has identified the 43 43 Spl.C.C.No.232/2009 parties to the sale transaction at the time of registration of sale deed. He further deposed regarding advancement of Rs.4,25,000/- loan in favour of the accused No.2 and payment of Rs.95,000/- by cash after 2 months from the date of sale deed by depositing the amount to the bank account of the accused No.2. During cross-examination Dw.4 has identified Ex.P53 schedule and the explanation submitted for payment of Rs.3.80 lakh and Rs.45,000/- was deposited through the cheque to the bank account of the accused No.2. During cross-examination Dw.4 has admitted that before advancing the loan, he has not secured any documents from the accused No.2 as security for the loan transaction. During cross- examination of Dw.4 the prosecution has not disputed the deposit of amount of Rs.3,80,000/- and Rs.45,000/- to the bank account of the accused No.2. In order to prove Dw.4 had advanced Rs.95,000/- by depositing the amount to the bank account, the accused No.2 has not produced any documentary evidence. In Ex.P-40 bank account extract page-22 there are entries regarding depositing of Rs.3,80,000/- on 26-12-2002 and Rs.45,000/- on 27-12-2002 to the bank account of accused No.1 and 2. In the said document there are also references regarding the deduction of the amount and payment of part sale consideration through cheques referred in the sale deed in favour of Mr. Mitalal 44 44 Spl.C.C.No.232/2009 19.5. Ex.P-71 (page 156-163) the sale deed is appearing in the name of the accused No.2 and 3 itself is sufficient to consider the said property as the asset of the accused No.1. The accused No.2 and 3 are the joint purchasers of the said property. The accused No.1 on 21.10.2019 has filed a memo admitting Rs.5,85,000/- as his asset/share in purchasing the property in the name of his wife the accused No.2. Therefore, the approach of the IO in considering the entire sale consideration of Rs.9,85,000/- as the asset value of the accused is not correct. As per the findings already given, it is proved that the accused No.3 was having independent source of income. The prosecution has failed to place on record evidence to prove that out of the income of the accused No.1, the accused No.2 has paid the entire sale consideration of Rs.9,85,000/- in favour of the vendor. After considering the documentary and oral evidence placed on record, the prosecution is able to prove Rs.6,85,000/- as the contribution made by the accused No.2 in order to purchase the aforesaid property. Hence the said amount has to be considered as the asset value of the property of her share. Accordingly, the conclusion arrived by the IO is partly rejected and the value of the property Rs.6,85,000/- is considered as the asset of the accused No.1.
20.1. As per the charge sheet, the IO has considered the value of the flat No.401, 4 th floor, Sanjay 45 45 Spl.C.C.No.232/2009 palace, Sanjaynagar, Bengaluru at Rs.34,50,000/- as the asset of the accused No.1. The prosecution has produced Ex.P71 (page 57 to 80) unregistered original sale and construction agreement dtd.20.7.2005. As per the recitals of the said document, Sri. Penda Kanty Nagaraju and Sumatha as vendors/ first party, M/s Charan Homes Pvt. Ltd., Developer/second party represented by their GPA holder Sri. K.V.V.Sathyanarayana Reddy had executed the agreement in favour of the accused No.2. As per the recitals of the agreement, the sale consideration is shown as Rs.28,50,000/-.
20.2. Dw.42 in her evidence para-4 deposed that after entering into the above referred agreement of Sale dtd.20.7.2005 to purchase the flat, she had paid Rs.6 lakhs in favour of the vendor for marble flooring and luxury interior decoration of the said flat. During the house search mahazar the IO has seized the payment receipts from the house of the accused and those documents are produced and marked as per Ex.P70 (Sl No.5 to 14). The accused have not disputed the said receipts. It is the evidence of Dw.42 that in the month of Jan-2006 after completion of the construction of the apartment, she had obtained refund of Rs.6 lakhs from Sri. Sathyanarayana Reddy. Therefore, from the evidence of Dw.42 she herself has admitted that she had paid Rs. 34,50,000/- to his vendor in relation to the sale transaction as per agreement dtd.20.7.2005. The 46 46 Spl.C.C.No.232/2009 prosecution has proved that the accused No.2 has paid Rs.34,50,000/- in connection with the purchase of the flat. In the above circumstances the IO has rightly considered the asset value of the flat in Sanjay Palace, Sanjay Nagar as Rs.34,50,000/-. Accordingly Rs.34,50,000/- is considered as the asset of the accused.
21.1. The IO has considered the value of the household articles of the accused found at the time of house search mahazar at Rs.1,24,845/- as the asset value of accused No.1. The accused No.1 in his defence has contended that the IO has deliberately skyrocketed the value of the household articles. It is the argument addressed on behalf of the accused that PW2 Pancha witness is not an expert to assess the value of those articles and therefore the value assessed by the IO is unscientific.
21.2. Dw.40 in his evidence in para-37 has deposed that Dw.2 has installed one Akai TV, Sony music system and grinding DVD on demo basis. The accused No.1 has contended that land line phone found in his house at the time of search belong to the Government and ceiling fan and tube light, calling bell, wooden shoe rack fixed on the wall belongs to the owner of the building. As per his contention, steel almirah was received during his marriage. The accused got examined Dw.3 Michel D'Souza and as per his evidence in Nov-2009 he has provided one Akai TV and other electronic items to the 47 47 Spl.C.C.No.232/2009 house of the accused for testing purpose. Dw.40 has deposed that he was keeping the vacuum cleaners and 2 water purifiers supplied by the company for demo and he has not paid for those articles. He further deposed that the computers and printers were obtained on monthly rent and in this regard he has produced Ex.D5 documentary evidence. Dw.32 has been examined to prove the supply of water purifiers for testing purpose in the house of the accused.
21.3. During cross-examination Dw.32 has admitted that he has not produced any documents to show that after the prescribed period they have taken back the equipments installed in the house of the accused. He further admitted that there is no agreement regarding providing the equipments such as water purifier and the vacuum cleaners in favour of the customers on trial basis.
21.4. The evidence of accused No.1 / Dw.40 and other witness examined as Dw.2 and Dw.32 shows that the accused has chosen costly electronic items found in his house at the time of search has been provided to him by the company for trial use on demo basis in order to reduce the asset value can be inferred. Therefore the evidence of the witnesses and defence of the accused regarding installation of electronic items on trial basis by the company is doubtful.
4848
Spl.C.C.No.232/2009 21.5. Though PW1 and 2 were subjected to cross- examination, the accused could not establish that the valuation of the household articles assessed by the IO and witness is not correct or exorbitant value has been fixed. On careful examination of Ex.P9 mahazar and the value fixed by the IO, for the household articles is found reasonable. Therefore there is no substance in the contention raised by the accused that the valuation assessed by the IO is not correct or unscientific. The valuation of household articles arrived as per Ex.P-9 at Rs. 2,49,689/- but after considering non-availability of date of purchase, some articles are said to have been received by way of gift, 50% advantage was given to the accused by considering Rs. 1,24,845/- as the asset value of the property. After considering the aforesaid contention of the accused and evidence placed on record it is just and proper to consider Rs. 1,24,845/ as the asset value of the household articles of the accused. The accused has failed to make out any reason to hold that the IO has considered the excess value of the household articles found during the house search. The rates assessed by the IO is not unscientific or unreasonable. The presumption to be drawn is that the articles found in the house belongs to the accused and it was purchased by him unless the contrary is proved. The accused even though has made an attempt to prove from the evidence of Dw.2 and Dw.32 but he has failed in his effort. Accordingly, the 49 49 Spl.C.C.No.232/2009 value of the household articles found during the search is considered Rs.1,24,845/-.
22.1. During the drawing of the house search and locker search mahazar as per Ex.P-9 and 10, cash and gold ornaments were found. The IO has considered Rs.9,82,450/- as the asset value of the gold jewels found during Ex.P9 house search mahazar and Ex. P10 locker search panhanama. As per EX.P9 house search mahazar, during the raid, the accused No.2 was found wearing gold chain and gold bangles of total 78 grams. Ex.P10 is the Bank locker search mahazar dtd.14.3.2006 and at the time of conducting the search, in all 17 gold jewels weighing 1325 grams 500 ml. grams were found in the said locker. As per the evidence of PW1 - IO, the bank locker No.146 was standing jointly in the name of the accused No.1 and 2. The police at the time of drawing the mahazar appears to have called goldsmith from Vijaya Jewelers, Nagashettyhally to ascertain the nature, quality and weight of the gold ornaments. PW-1 in his evidence has deposed regarding the gold jewels found during the house search and bank locker search panchanama and has considered Rs.9,82,450/- as the value of the assets of the accused. The IO has considered the value of the gold at Rs. 700/- per gram.
22.2. The argument of the learned defence counsel is that the prosecution has failed to examine the goldsmith in order to prove the value of the gold 50 50 Spl.C.C.No.232/2009 ornaments. According to the defence of the accused, out of the aforesaid 1403.500 gms. of gold, 662.40 gms gold ornament belongs to Dw.26 Smt.Shahataj Begum. Dw.26 has been examined as witness and she is the elder sister of the accused No.2. In her evidence she deposed that in 1975 when she got married she had received 300 gms. of gold from her parents. She further deposed that she had gifted 2 bangles of 30 gms. to the accused No.2. In para 8 she has deposed that while they have shifted their family from Chennai to Bengaluru, in the month November and December 2005, they have stayed in the house of the accused and thereafter they went to their mother's house. It is the contention of Dw.26 that she had kept her 660 gms. of gold ornaments and cash of Rs.2,73,000/- in the locker of the accused No.1 and 2. Hence she has claimed 660 gms. of the gold ornaments and cash of Rs. 2,73,000/- found during locker search mahazar belongs to her.
22.3. During examination Dw-26 has produced Ex.D-13 five invoice issued by Payal Jewelers Bengaluru. However she has been keeping Ex.D13 receipts for all these years is also highly improbable. The contents of Ex.D13 and 13 (a) to 13(d) are in the handwriting of the same person. It appears, in order to assist the accused to claim the gold ornaments, Dw.26 has concocted those receipts and produced before the Court. The serial number of the aforesaid receipts and other entries shows 51 51 Spl.C.C.No.232/2009 that the owner of the shop has issued all the receipts on the same day by picking the receipt having different serial number. To prove the document the shop owner is not examined. Hence those invoice prima-facie are not proved according to law.
22.4. During cross-examination, Dw26 has admitted that she is not having any independent source of income. The witness has further admitted that she is not having any documents to show that in the month of November and December-2005 they were staying in the house of the accused No.1 and 2. As on the date of the raid admittedly they were not staying in the house of the accused. During cross-examination, the witness has admitted that at the time of depositing the amount and valuables in the locker appearing in the name of the accused No.1 and 2, she had not made any entry in the register maintained in the bank. During cross- examination of Dw.26 the prosecution has contended that Ex.D13, 13(a) to 13(d) - five receipts have been created for the purpose of the case.
22.5. Ex.D14 is the bank account pass book appearing in the name of Dw.26 and she has produced the said document to prove her financial capacity and received a sum of Rs.70,180/- from LIC of India on 20.10.2002. As per Ex.D14, Dw.26 was maintaining the account in Canara bank Vidyaranyapua, Branch and it reflects that the account was opened on 25.1.2002. The 52 52 Spl.C.C.No.232/2009 document contains the entries for the period 25.1.2002 to 30.1.2009. Those entries appearing in the passbook show that Dw.26 has failed to maintain the minimum balance in her account and therefore the bank authorities have deducted the penalty charges from her account. The entries appearing in Ex.D14 show that Dw.26 has failed to maintain substantial amount in her account and except on few occasions the account holder could not maintain the balance amount exceeding Rs.10,000/-. When Dw.26 was having an account in Canara bank, Vidyaranyapura branch, there was no impediment for her to obtain the locker facility from the said bank and to keep her gold ornaments and other valuables in the said locker. There is no satisfactory explanation from the witness why she has deposited the cash in the locker standing in the name of the accused even though she was having her own bank account in Canara Bank. Therefore, the evidence of Dw.26 that she had kept 662 gms of her gold ornaments in the locker appearing jointly in the name of the accused No.1 and 2 is highly improbable and unbelievable. In the result, the evidence Dw.26 in this regard is unacceptable.
22.6. Dw.42 in her evidence has deposed that Dw.26 her elder sister had kept the cash and gold ornaments in their bank locker. But she has admitted that she is not remembering the year in which Dw.26 and her family came from Madras to Bengaluru. It is her 53 53 Spl.C.C.No.232/2009 further evidence that Dw-26 had kept her household articles and documents in their house. However it is appropriate to mention here that during the house search mahazar, the police could not trace any such documents belonged to Dw.26 and therefore the contention of the accused that Dw.26 was residing in their house or kept her gold ornaments and cash in the bank locker is highly improbable and unbelievable. Therefore, the evidence of Dw.26 regarding keeping of the gold ornaments in the locker of the accused is surrounded by suspicious circumstances. Dw.42 in her evidence has not deposed anything regarding gold ornaments received during the marriage as gift. But in her evidence in para-11 she has deposed out of the gold ornaments seized from the bank locker 666 gm belongs to Dw.26 her sister.
22.7. Thus for the aforesaid reasons the evidence of Dw-40 and 42 regarding gold ornaments and cash found in the locker belongs to Dw-26 is not satisfactory and acceptable. Hence the contention of the accused No.1 and 2 that Dw-26 had deposited her gold ornaments in the locker in ING Vysya Bank Dinnur branch is not proved. When the accused has failed to prove the gold ornaments found in the locker belong to Dw.26, the inference to be drawn is that those gold ornaments belongs to the accused No.1 and 2. The accused has failed to report receipt of gift to his department in accordance with the provisions of his service rules. 54 54
Spl.C.C.No.232/2009 22.8. The accused got examined Dw.9 Mr. Mujibulla Khan and he deposed during his evidence that during the marriage of the accused No.2 in the year 1985, he had gifted 65 gms. weighing gold necklace as gift to the accused No.2. Dw.13 Mr. D.M.Majumdar has deposed that during the marriage of the accused No.1 he had gifted 8 gms of gold coin. Dw.24 Mr. Jameel Khan has deposed in his evidence that during the marriage of accused No.1 and 2 he had gifted 5 gms. plain gold ring to the accused No.1 and 2. Dw.29 Mr. Maqbool Ahmed in his evidence has deposed that he had gifted 4 gold bangles weighing 32 gms. to the accused No.2 during her marriage. He further deposed that his elder brother had gifted 2 gold chain (10 x 2 = 20 gms.) and 3 rd and 4th brothers had gifted four rings of 5 gms each. He further deposed his five sisters and all of them had given 5 rings of 5 gms. each to the accused.
22.9. Dw.37 Ms. Mumtaz Begum has deposed in her evidence that in the marriage of the accused No.1 she had given 3 thola thali chain and 10 gms. finger ring on the date of his engagement. Dw.34 Mr. Nissar Ur Rehman the younger brother of the accused No.1 in para-2 of his evidence has deposed that he was working at Qatar and on every six months he was coming to India and at that time he was bringing the gold ornaments and giving it to his brothers. During cross-examination he has admitted that he was bringing gold approximately 1, 2, 3 grams. 55 55
Spl.C.C.No.232/2009 There is no specific evidence regarding the date of his arrival from abroad, nature of the articles brought, its weight, value and description given to the accused. Hence, evidence of Dw.34 is not up to the required standard of proof to ascertain the total quantity of gold claimed to have been given in favour of the accused No.1 and 2. Accordingly, the evidence of Dw.34 in this regard is not acceptable and trustworthy.
22.10. During cross-examination of Dw.13 it is elicited that he had purchased the gold coin weighing 8 grams in the year 1985. The prosecution has specifically contended that in order to reduce the asset value of the accused No.1, the witness has deposed false evidence. Even if it is presumed that the accused No.1 had received the gold coin (8 gms.) as gift from Dw.8 in the year 1985, he was keeping the said gold coin till 2006 the date of raid in the same format is highly improbable and unbelievable. Therefore, the evidence of Dw.13 regarding the alleged gift of gold coin during the marriage of accused No.1 is unbelievable. There is no documentary evidence in addition to the testimony of the witness.
22.11. As per the evidence of Dw.9, he is acquainted with the family of the accused No1 and his father for the past 50 years and hence he had gifted 65 grams weighing gold necklace to the accused No.2 during her marriage. During cross-examination, the witness has 56 56 Spl.C.C.No.232/2009 admitted that in the year 1985, he was married and he had two children. As per his evidence, out of his savings and by exchange and sale of old gold ornaments, he had purchased the necklace in order to make gift in favour of the accused No.2. In order to show that he was working as the Erection Engineer in Voltas Company in the year 1985 or at that time he was drawing salary of Rs.10,000/- per month he has not produced any documentary evidence. Admittedly, he is not the relative of the accused but the accused No.3 said to be his family friend. Therefore, the evidence of Dw.9 that he had gifted 65 grams gold necklace in the year 1985 during the marriage of the accused No.1 and 2 is unbelievable and his evidence in this regard is not accepted.
22.12. During cross-examination of Dw.24, the witness has admitted that he had a gold chain given by his father-in-law at the time of his marriage and he gave it to the goldsmith and got prepared 2 rings for the purpose of giving gift in favour of the accused No.1 and
2. He has also admitted that the accused No.3 is his distant relative. It is elicited in the evidence that on one or two occasions he had gifted gold rings during the marriage. There was no any special reason to consider his relationship with accused No.1 and 2 in order to make gift of gold rings during the marriage. Therefore, the evidence of Dw.24 that he had gifted 2 gold rings to the accused during their marriage is not believable. 57 57
Spl.C.C.No.232/2009 22.13. During cross-examination of Dw.29, the witness has specifically admitted that he has not produced any documents to show regarding gift of 4 gold bangles weighing 32 gms. to the accused No.2. and also gift made by his deceased elder brother Mr. Abdul Mazir. He has also not produced any documents in proof of gift by his brothers and sisters. Therefore, the evidence of Dw.29 regarding the gift of gold ornaments by himself and his brothers and sisters during the marriage of accused No.2 is highly improbable and unbelievable in the absence of documentary evidence. Hence from his evidence the alleged gift of gold ornaments is not proved.
22.14. During the cross-examination of Dw.37, the witness has admitted that she is not having any documents to show she had gifted the gold ornaments weighing 3 thola (30 gms.) chain and a ring in favour of the accused. As per her evidence she had got exchanged the old gold ornaments in order to make gift in favour of the accused. The prosecution has specifically denied the gift of gold ornaments by the witness in favour of the accused during their marriage.
22.15. Dw.40 in his evidence para-82 and 83 has deposed that out of the gold ornaments totally 1403 gms. found in the bank locker in ING Vyasya bank 660 gms. belongs to Dw.26 Smt.Shahtaj Begum and the remaining 300 gms. was received by him and his wife during their 58 58 Spl.C.C.No.232/2009 marriage. He further deposed that he had received 661 grams as gift by his friends and relatives and 30 grams from Dw.37, in their marriage and 64 grams weighing necklace from the accused No.3 during their marriage anniversary. He further deposed that Dw.9 Mujibulla khan gifted 65 grams weighing necklace to the accused No.2, Dw.26 given gift of 2 bangles of 30 grams Dw.13 has given 8 grams gold coin and Dw.24 has given 20 grams. gold.
22.16. During cross-examination in para-111 Dw-40 has admitted that he is not having any documents to show Dw.26 was residing with them a few days/months before the date of raid by the police. The accused has claimed that the aforesaid receiving of gift of gold ornaments during their marriage has been declared in his annual property returns marked as per Ex.D81 to 86 and Ex.P53 schedule explanation. It is true, in Ex.P53 page-81 to 84 it is declared that the gold belongs to Dw.26 and also received by way of gift. The accused has produced Ex.D-81 to 86 APR for the year 2000-01 to 2005-06. In Ex.D-81 to D86 the accused No.1 has declared received 700 grams of gold as gift during his marriage.
22.17. Pw-30 Mr.Shashikumar N. was examined on behalf of the prosecution and he was working as the Deputy Commissioner of Police, Bengaluru. In his evidence he deposed having issued certified copy of 59 59 Spl.C.C.No.232/2009 Ex.D-81 to 86 APR pertaining to accused No.1. He further deposed that he has received Ex.D81 to 86 documents from the office of the S.P., SCRB, along with departmental enquiry file. As per his evidence the accused has sought for issuing certified copy of APR for the year 2000-2006 and on 15.7.2019 he has issued those documents.
22.18. PW27 Mr.Udayashankar was working as the Asst. Administrative Officer in the office of the DG and IGP Bengaluru. In his evidence he has deposed that the Commissioner of Police has sent Ex.P-82 letter dated.18.3.2006 to the office of the DG & IGP to the Bengaluru City division to furnish the APR of the accused. Ex.P82 document was marked subject to the objection raised by the defence. As per his evidence on 20-3-2006 they received intimation that the accused No.1 has not submitted his APR. Pw-27 has deposed that the information was sought through fax message on 18.3.2006. During cross-examination of the witness the accused contended that Ex.P82 document has been created by the IO for the purpose of the case. The contention of the accused that whether the concerned authority has taken action against him for non-filing of the APR is not relevant for the purpose of the case. The evidence and circumstances of the case show that the accused No.1 had not filed his APR. The accused in his evidence has also specifically admitted that when he has 60 60 Spl.C.C.No.232/2009 made inquiry orally in the office, they informed that his APRs are not available.
22.19. The accused in order to over come the above hurdle, in his evidence para 99 and 100 has deposed that at the time of drawing Ex.P-9 house search mahazar, the IO has seized all the documents but not mentioned the details of the agreement with M/s Charan Homes, lease deed, Ex.D-71 agreement entered by the accused No2 with R.C. Graphics, and copy of the APR in the house search mahazar. He further deposed that on the next day the IO has returned all the documents and directed him to file those documents along with the schedule but retained with himself the copy of the APR. The evidence of Dw-40 in para 99 and 100 is not believable. The accused No1. being the police inspector has not raised any objection before affixing his signature in Ex.P9 the house search mahazar. The IO has furnished the copy of Ex,.P-9 mahazar to the accused. He could have raised the objection regarding the non-mentioning of the above referred documents in the said mahazar. It is also necessary to make note of the fact that the aforesaid contention finds no place during the cross- examination of Pw-1. Therefore the above contention of the accused that the IO has seized the personal copy of the APR documents without mentioning it in the house search mahazar is apparently false, and unbelievable. The witness may lie but not the circumstances is made 61 61 Spl.C.C.No.232/2009 out and for the above reasons, the explanation of the accused No.1 in para 99 ad 100 of his evidence is not plausible explanation and hence not accepted.
22.20. PW27 in his further examination-in-chief has deposed that even though Ex.D87 to 91 are the original documents he has wrongly attested those documents. PW28 Mr.Mahadevaiah examined and he was working as the Deputy Director, Government Press, Bengaluru. He has deposed that the assets and liability statement forms Ex.D81 to D86 were printed in the government press in Sl.No.03619 and on 27.1.2005 docket was issued and within a period of 3 to 7 days it was printed. In order to prove series No.03619 was printed in Jan-2005, the prosecution has produced Ex.P-83 copy of the register. He further deposed from 27.1.2005, 10,000 pads of assets and liabilities statement were printed. In Ex.P82 to 86 it is printed 'ಸರಕಕರ ಮಮದದಣಕಲಯ, ಪಪಣಕಣ, ಬಬಬಗಳಳರಮ-81, ಕಕ.ಸಮ. 03619/P5' He has specifically deposed that there was no possibility of printing those formats in the year 2001-02 to 2005.
22.21. During cross-examination of PW-28 the accused has not disputed Ex.D-83 copy of the register produced by the witness. It is the contention of the accused that Ex.D-82 to 86 are Photostat copies. Therefore it is his argument that there are possibility of the said serial number are printed in Ex.D-82 to 86 blank formats. During cross-examination of PW-28 the accused 62 62 Spl.C.C.No.232/2009 has miserably failed to elicit any material admission to challenge the evidence of the witness regarding the assets and liabilities form 03619 was printed after 27.1.2005. The accused has failed to satisfactorily explain how the aforesaid serial number 03619 finds printed in Ex.D-82 to 86 formats in respect of the APR for the year 2001-02 to 2005-06. It is for the accused to explain where he has secured Ex.D-82 to 86 formats, got the photostat copies of those forms and the purpose behind the number is appearing in those formats and from where he has took the photostat copies. P.w.28 being the official witness is the competent person to depose regarding date of printing of the disputed forms. From the aforesaid evidence of P.W.28 the only inference can be drawn and the conclusion to be arrived is that Ex.D-82 to 86 copies of assets and liability formats photostat copies were secured after 27.1.2005. Therefore even though witness may lie but not the circumstances is made out by the prosecution. From Ex.D-82 to 86 this court can draw a safe conclusion that after the police conducted the raid on the house of the accused on 14.3.2006, he has manipulated and submitted Ex.D-81 to 86 assets and liabilities statement to his higher officer for the previous year 2000-02 to 2005-06. The accused has fabricated Ex.D82 to 86 assets and liabilities statement in order to claim legitimacy of his assets is proved beyond all reasonable doubt. Whether the disciplinary authority has initiated 63 63 Spl.C.C.No.232/2009 any action or issued notice to the accused No.1 for his failure to submit assets and liabilities statement is not material for the present case. It is the internal administration of the concerned department and the disciplinary authority has to initiate action for the civil misconduct of the accused No.1.
22.22. In Ex.D-83 the accused No.1 has stated that his wife the accused No.2 was giving tuition to the children, borrowed loan of Rs.1,60,000/- from Smt. Nilopher, received advance Rs.43,21,000/- from Mr. Veeranna kutty on 17.5.2003 and receipt of cash on different dates amounting Rs.10 lakh are only afterthought contention. For the aforesaid reasons the declaration made by the accused in Ex.D82 to 86 that he had received 700 gm. gold ornaments as gift during their marriage and other facts regarding the present case is outrightly rejected.
22.23. PW29 Mr. H.N. Sathyanarayana Rao was working as the Additional Police Commissioner in the year 2005-06 and he deposed that on 18.3.2006 received a fax message from the office of the DG and IGP to send the assets and liabilities statement of four police officers including the accused No.1. He further deposed that in their office the assets and liabilities statement of the accused No.1 was not available and accordingly he had sent reply as per Ex.P-82. In Ex.P82 letter it is specifically stated that the assets and liabilities statement is not 64 64 Spl.C.C.No.232/2009 available in their office. The accused during cross- examination of Dw.29 has produced and got marked Ex.D93 fax message and in the said document name of accused No.1 is hand written. It is argued on behalf of the accused that in the event Pw.29 has received fax message to send the assets and liabilities statement of the officers including the accused No.1, there was no possibility to insert the name of accused No.1 in the Ex.D- 93 intimation received through fax. It is the specific evidence of Pw.29 that the officers above the rank of police sub-inspector submits their APR to the office of jurisdictional DCP and there after it will be sent to the office of of the DG & IG of police.
22.24. Ex.P84 document was marked through Pw.29. As per the contents of the correspondence, the accused has not submitted his assets and liabilities statement. The accused has raised suspicion regarding the correspondence by got marking Ex.D-93. During cross-examination of Pw.29 it is only suggested to the witness that Ex.P82 has been concocted for the purpose of the case. But the witness has specifically denied the said suggestion. There is no necessity or ill-will for the witness to create Ex.P82 for false implication of the accused. Even the documents marked as per Ex.P84(page -11) show that from the office of the Director General and Inspector General of police made correspondence dated 6-4-2006 to the Police 65 65 Spl.C.C.No.232/2009 Commissioner to furnish the APR documents of the accused. The accused has not made any allegations against his higher authorities stating that they have deliberately not furnished his APR documents.
22.25. In view of the evidence adduced on behalf of the prosecution and defence of the accused, the documentary evidence and other attending circumstances, this Court has arrived to the conclusion that Dw.40 has not declared the gold ornaments alleged to have been received by him by way of gift during his marriage and other occasions in the APR of the relevant years. The accused has also not able to secure his assets and liabilities statement for the check period in order to prove that those assets had been declared before the competent authority. Hence the gold ornaments found in the bank locker has to be considered as the asset of the accused. The accused has also failed to prove his defence that few of the gold ornaments found in the locker also belongs to Dw.26 Shahtaj Begum. In the above circumstances the conclusion arrived by the IO in considering gold ornament weighing 1403.500 grams as the asset of the accused and it does not require any interference. Hence Rs. 9,82,450/- as the asset value of the gold ornaments and asset of the accused.
23.1. The IO has found cash of Rs.1,11,000/- during house search mahazar and the remaining cash of Rs.2,73,500/- was found in the bank locker jointly 66 66 Spl.C.C.No.232/2009 appearing in the name of accused No.1 and 2. Hence he has considered Rs.3,84,500/- as the asset of the accused. The accused in his defence has contended that out of the aforesaid amount found in their house and bank locker, Rs.1 lakh belongs to accused No.2 which she had availed loan in Dec-2005 from Mr. Basith Khan and Rs.2,73,500/- belongs to Dw.26. The accused No.1 has admitted that the remaining amount of Rs.11,500/- cash belongs to him which is acquired through his salary.
23.2. In order to prove the aforesaid contention the accused got examined Dw.26 Smt. Shahtaj Begam. It is the defence of the accused that Dw.26 was not having any bank account and therefore, she had kept the cash belongs to her in the aforesaid bank locker. But during the trial Dw.26 herself has produced Ex.D-11 bank pass book appearing in her name. Therefore her contention that when they have shifted from Chennai to Bengaluru she had kept the cash in the bank locker jointly appearing in the name of the accused No.1 and 2 is highly improbable and unbelievable. In this regard, except the oral evidence of Dw.26, 40 and 42, the accused have failed to place any other substantiative documentary evidence to prove the possibility of depositing the amount in the locker of the accused. In the above circumstances, there is no need to interfere in the conclusion arrived by the IO. and hence the cash of Rs.3,84,500/- is considered as the asset of the accused. 67 67
Spl.C.C.No.232/2009 24.1. The IO has considered the following amount appearing in the bank account of the accused No.3 as the asset of the accused No.1.
i) Savings Bank account,Canara Bank,Gokul Branch account No.31353 appearing in the name of the accused No.3 Sheikh Bale
ii) Savings Bank account,Syndicate Bank,Gagna Nagar branch account No.25964 appearing in the name of the accused No.3 Sheikh Bale.
24.2. The prosecution has produced Ex.P-31 bank account extract and as per the document the SB account No. 31353 appearing in the name of the accused No.3 in Canara Bank and Rs. 33,017/- has been freezed. PW1 during his cross-examination in para-29 has specifically admitted that he has not made any investigation regarding the total asset, expenditure and income of the accused No.3. He further admitted that he has not obtained the bank account extract of the accused No.3 to ascertain all the transactions during the check period. As per the forgoing findings of this court on immovable property appearing in the name of the accused No.3 and 4 have been already held as their separate property, the amount outstanding in the bank account of the deceased accused No.3 are also considered as his personal amount. Therefore, the IO has committed an error in considering the aforesaid amount Rs.33,017/- and Rs.1,256/- as the asset of the accused. Accordingly the 68 68 Spl.C.C.No.232/2009 aforesaid amount in the bank account of the accused No.3 are excluded from the assets of the accused No.1.
25.1. The prosecution in the charge sheet has considered the following amounts as the assets of the accused No.1.
i) Savings Bank account SBI, Rs.1,145/-
ii) Savings Bank account SBI, Rs.53,109/-
iii) Savings Bank account ING Vysya Bank,, Rs.7,289/-
iv) Savings Bank account in ING Vysa Bank,Dinnur Rs.3,519/-
v) Savings Bank account Punjab National Bank, Rs.41,744/-
vi) Joint Savings Bank account Canara Bank, Townhall Branch, Rs.3,749/- .
25.2 The prosecution in order to prove the aforesaid assets has produced Ex.P-11 bank account extract secured from Syndicate Bank, Basaveswara road Branch, Bengaluru. As per the said document as on 14.3.2006 a sum of Rs.53,109/- was outstanding in the said account. As per Ex.P-35 the prosecution has produced account extract of Punjab National Bank and the account is appearing in the name of the accused No.2. As on 4.3.2006 a sum of Rs.41,744/- was outstanding in the said account. Ex.P-40 is the account extract secured from Canara Bank, Townhall branch, 69 69 Spl.C.C.No.232/2009 Bengaluru and as per the document, a sum of Rs.3,749/- was outstanding in the name of accused No.1. Ex.P43 is the account extract secured from SBI, Jalahally branch Bengaluru and as per the document Rs.1,145/- was outstanding in the account of the accused.
25.3. The accused during the cross-examination of PW1 or in his evidence has not seriously disputed the above said bank account extract produced by the prosecution and the amount was standing in their name. Moreover, as per memo dtd.21.10.2019 he has admitted the aforesaid amounts are his assets. Therefore, there is no impediment in considering the aforesaid amount appearing in the name of accused No.1 and 2 as the assets during the check period.
26. From the aforesaid discussion and evidence on record this court considers, the assets of the accused are as follows:
Table No.I Sl.
Description of assets Value (in Rs.) No. Immovable properties Site No.5, House List No. 317/1c, V.P.Katha No.116, Halage 1 Devarahalli, Bengaluru North on 26.8.91 in the name of his mother Smt.Jafir Bi.70 70
Spl.C.C.No.232/2009 2 Acres and 4 Guntas of land in Sy.No.21/2 of Chikkabettahalli, 2 Bengaluru North, on 30.09.94 in the name of his father Sri.Shaik Bale Site No.3, Katha No.582, S/3, Kodigehalli, Yelahanka Hobli, 3 Bengaluru North Taluk, in the 1,50,000/- name of his wife Smt.Sartaj Begaum.
Site No.21A, in Sy.No.102 of Cholanayakanahally, on 4 29.07.1998 in the name of his father Sri.Shaik Bale Site No.33, at Sy.No.9/3, Katha No.306/33 Chikkabettahalli, 5 Yelahanka Hobli, Bengaluru North on 1.10.99, in the name of his father Site No.561, P2, Society No.4714, 6 Ideal Homes, Mysore Road, Kenchanahally, Bengaluru Site No.21B, in Sy.No.102, 7 Cholanayakanahalli, Bengaluru North Taluk 4 sites bearing Nos 42, 43, 78 and 79 each measuring 30'x4-' in Kenchanahalli, Yelahanka Hobli, 8 2,40,000/-
Bengaluru in the name of his wife Smt.Bilkish Jahan 71 71 Spl.C.C.No.232/2009 Site measuring 82'x40' at No.18, 4th Cross, G.M.Ramakrishnappa Layout, Ward 100, Geddalahalli, 9 Bengaluru North Taluk, in the 5,85,000/-
name of his wife Smt.Bilkish Jahan and father Sri.Shaik Bale on 20.10.2003 Flat No.401, 4th Floor, Sanjay Palace, 1st Cross, AECHS (KEB 10 34,50,000/-
Layout) Sanjay Nagar, Bengaluru in the name of wife.
Movable properties 11 House hold articles 1,24,845/-
Gold Jewels weighing 1403 grams 12 and 500 mili grams 9,82,450/-
Total cash possessed by the AGO 13 in the residence and bank locker 3,84,500/-
S.B.Account in State Bank of 14 India, Airforce station, Jalahalli in 1,146/-
Account No.10006502013 SB Account in Syndicate bank, 15 Basaveshwara Road, Bengaluru 53,109/-
Account No.20010059801 Balance amount in S.B. Account No. 211010010691, ING Vysya 16 7,289/-
Bank, Dinnur Road, Bengaluru Balance amount in S.B. Account 17 No. 211010010053, ING Vysya 3519/- Bank, Dinnur Road, Bengaluru 72 72 Spl.C.C.No.232/2009 Balance amount in S.B. Account No.211010010053, ING Vysya Bank, Dinnur Road, Bengaluru 18 41,744/-
standing in the name of Sartaj Begum.
Balance amount in S.B. Account No.31353, Canara Bank, Gokula 19 Branch, Bengaluru in the name of his father Sri.Shaik Bale.
Balance amount in joint S.B. Account No.150557, Canara Bank, 20 3,749/-
Town Hall Branch, Bengaluru.
Balance amount in S.B. Account No.25964, Syndicate Bank, Ganganagara Branch, Bengaluru 21 in the name of his father Sri.Haaji Shaik Bale.
Rs. 61,27,351/-
Total:
27. The prosecution has alleged that during the check period the accused has incurred total expenditure of Rs.42,32,521/-under different heads as shown herein below:
TABLE II Sl.
Particulars of expenditure Value (in Rs.) No. 1 Domestic expenditure 5,66,384/-73 73
Spl.C.C.No.232/2009 Site No.5, measuring 30' x 80', House List No.317/Ic, VP Katha No.116, Halage devarahalli for 2 9,320/-
registration and 2080/- towards stamp fee.
2 acres and 4 guntas of land in Sy.No.21/2 of Chikkabetta-halli, for 3 registration and Rs 2080/- towards 31,542/-
stamp fee.
Site No.3, measuring 50' x 80' katha No.582, S/3, Kodigehalli, for 4 22,540/-
registration and stamp fee.
Site No.21A, measuring 30'x40',
in Sy.No. 102 of
5 18,500/-
Cholanayakanahalli, registration and stamp fee.
Site No.33, 30'+30' x 40'+41'x2,
Sy.No.9/3, katha No.306/33
6 18,040/-
Chikkabettahalli.
Site No.561, measuring 60'x40',
P2, Society No.4714, Ideal Homes,
7 7,650/-
Mysore Road, Kenchanahalli.
Site No.21B, measuring 40'x35',
8 in Sy.No.102, Cholanayakana halli. 28,940/-
4 sites, bearing Nos 42, 43, 78
and 79 each measuring 30' x 40',
9 23,140/-
in Kenchanahalli, Yelahanka.
Site measuring 82'x40', at No.18,
10 4th Cross, GM Ramakrishnappa 94,266/-
Layout.
Site measuring 12.20 x 18.30
meters, at No.2 c 111 - NGEF -
11 5,920/-
East Layout, Bangalore.
74
74
Spl.C.C.No.232/2009
A GPA from one Jayappa Reddy to
Smt.Sartaj Begam W/o AGO in
12 respect of site measuring 60' x 2,75,000/-
40' at No.111 in Sy.No.30/2 of
Geddalahalli.
A sale agreement between
Sri.Shaik Bale father of the AGO
13 1,00,000/-
and Kodandappa.
A GPA from one Venkatappa S/o
Venkata Bovi, 71, Bovipalya, 1
14 7,14,000/-
block, Rajajinagar, Bangalore to
Sri.Shaik Bale.
A GPA from one Smt.Mary
Chandra, to Sri.Shaik Bale Sab,
15 5,15,000/-
father of AGO.
An unregistered sale deed dated
22.03.2004, between
16 Smt.Nanjamma and Smt.Bilkish 1,08,000/-
Jahan W/o AGO.
AGO has purchased 1000 shares
17 from Canara Bank. 35,000/-
AGO has purchased 1000 shares
from Canara Bank at 35/- each in
18 the name of his wife Smt.Bilkish 35,000/-
Jahan.
Rent paid to Ghousepeer, Krishna
19 Nanda Rao, No.2208, 4th 'A' Cross, 2,000/-
Vijayanagar, Bangalore.
Rent paid to Shesha Jayaram W/o
M.G.Jayaram, No.453, HMT
20 Layout, Vidyaranya Pura, 31,500/-
Bangalore 97.
Rent paid to E.Nagaiah S/o
21 Enogowda, KEB Layout No.112, 1st 72,000/-
Cross, Geddalahalli, Banglaore.
75
75
Spl.C.C.No.232/2009
Rent for house No.43, 3 rd Cross,
22 Ramakrishnappa Layout, 95,000/-
Geddalahalli, Sanjayanagar.
Electricity charges for house
No.43, 3rd Cross, Ramakrishnappa
23 Layout, Geddalahalli, 20,037/-
Sanjayanagar.
Water charges for house No.43, 3 rd
24 Cross, Ramakrishnappa Layout, 4,242/-
Geddalahalli, Sanjayanagar.
Rent for house No.13/15, 15th
25 Cross, AECS Layout, II Stage, 1,33,000/-
Sanjayanagar, Bengaluru.
Electricity charges house
No.13/15, 15th Cross, AECS
26 Layout, II Stage, Sanjayanagar, 2,699/-
Bengaluru.
Water charges house No.13/15,
27 15th Cross, AECS Layout, II Stage, 17,260/-
Sanjayanagar, Bengaluru.
28 Cooking gas consumption 4,411/-
29 Subscription for Islamic voice 1,000/-
Subscription for Film fare
30 210/-
magzine.
National Insurance for Kinetic
31 385/-
Honda - Insurance
32 Value of kinetic honda vehicle 32,900/-
33 ING Vysya Insurance 1,76,691/-
76
76
Spl.C.C.No.232/2009
34 ING Vysya Insurance 69,813/-
Postal Life Insurance Policy
35 42,840/-
bearing No.KTCE04729
36 NSC purchase 25,000/-
37 Shares purchase 1,31,868/-
38 Loan - Canara Bank DPN/NP/59-94 26,500/-
Loan - Canara Bank DON/NP/13-
39 87,999/-
95
Loan State Bank of Hyderabad A/c
40 31,926/-
No.1823
41 Loan Andra Bank A/c No.2-95-96 68,245/-
Loan - State Bank of Hyderabad,
42 42,707/-
A/c No.JL/1901
Loan - State Bank of Hyderabad,
43 42,162/-
Ac No.1839
Loan State Bank of Hyderabad,
44 40,158/-
A/c No.JL/1945
45 Educational expenditures 4,21,726/-
Total 42,32,521/-
77
77
Spl.C.C.No.232/2009
28.1. As per the prosecution case during the check period the accused No.1 has incurred domestic expenditure of Rs.5,66,384/-. The IO has collected Ex.P- 44 report from the Statistical Department, Karnataka Lokayukta, Bengaluru. The prosecution has also examined Pw-3 Mr.Jayadeva Prakash who was working as the the Joint Director, Statistics Section, Karnataka Lokayukhta, Bengaluru to prove the contents of the report. Pw3 in his evidence has deposed that he had received the requisition from the Superintendent of Police, Karnataka Lokayukhta, Bengaluru to ascertain the domestic expenditure of the accused for the check period. It is his evidence that he has ascertained the year wise domestic expenses of the accused after collecting the required information from the IO. In order to arrive the conclusion he has referred the pay commission report, year wise inflation index and thereafter has given Ex.P44 report.
28.2. During his cross-examination the accused has contended that Pw-3 has not considered the Tendulkar 78 78 Spl.C.C.No.232/2009 Committee report while preparing Ex.P44 report to ascertain the domestic expenditure. The witness has admitted that the IO has not informed him regarding the food habits of the accused and his family members. However the accused has not placed on record what are the parameters requires to be considered as approved by the Tendulkar Committee. Even during the cross- examination of Pw-3, he has failed to make out in what aspect the report submitted as per Ex.P-44 is defective. Therefore in the absence of placing on record, the alleged Tendulkar Committee report it is not necessary to appreciate the contention of the accused.
28.3. Dw.40 in para 23 of his evidence has deposed that Ex.P44 report is unscientific. As per his contention, he was receiving food grains from his father out of their agricultural property. As per his contention the approximate expenses incurred by him for domestic expenditure during the check period was Rs.2,50,000/- and accordingly prayed for rejection of Ex.P44 report and evidence of Pw3.
7979
Spl.C.C.No.232/2009 28.4. As per the contents of Ex.P44 report, Pw3 has considered the pay commission report for the year 1985- 86, National Sample Survey for Karnataka Food consumption expenditure, per capita monthly expenditure, State Commission for price index etc. Pw3 is a public servant and in discharge of his official duty he has submitted Ex.P44 report to the IO. Therefore, inference can be drawn as provided under Section 114
(e) of Indian Evidence Act. The accused has not placed any documentary evidence in support of his contention except the bare denial during cross-examination of Pw-3.
28.5. In order to challenge Ex.P44 report, the accused has relied upon the judgment reported in Laws(Kar) 2013 10 403 in the case of Tirakappa Kuravatteppa Byadagi Vs. State of Karnataka and in Crl. Appeal No.1225/2002 of High Court of Kerala in the case of Muruli Mohan Nayar Vs. V.S.Kurup, Inspector of Police. The family of accused No.1 consists of himself, his wife - accused No.2 and 3 children. Pw3 has enclosed with the report estimate of average domestic food item, expenditure statement, working sheet for estimation of 80 80 Spl.C.C.No.232/2009 family foods expenditure, year wise expenditure statement.
28.6. It is the argument on behalf of the defence that the IO has considered the gross salary income of the accused as Rs.10,85,369/- but has considered Rs.5,66,384/- towards domestic expenditure which is more than 50% of the salary. In this regard, the learned defence counsel has relied upon the judgment of the Hon'ble Supreme Court reported in AIR 1964 SC 464 in the case of Sajjan Singh Vs. State of Punjab. In the said decision, the Hon'ble Supreme court held that while calculating the domestic expenditure, 1/3rd income of the accused is to be taken into consideration. According to the IO, salary of the accused during the check period is Rs. 10,95,369/-. If the aforesaid contention of the accused is adopted the 1/3rd of the said salary amount comes to Rs.3,65,123/-. The IO has considered check period as 1.8.1991 to 14.3.2006 14 years 7 months = 175 months. Therefore, the submission of the accused to consider 1/3rd of his salary towards the domestic expenditure and the family consist of 5 members is just 81 81 Spl.C.C.No.232/2009 and proper. That on adopting the aforesaid method of 1/3rd of the salary of the accused average monthly expense comes to Rs.2,086/- and the said amount is very reasonable. The settled principle of criminal law is that when two versions are available before the court, it is required to consider the aspect which is in favour and benefit of the accused. In the above circumstances the conclusion arrived by the IO and the evidence of PW3 and Ex.P-44 report regarding domestic expenditure of the accused as Rs.5,66,384/- exorbitant and hence it is not considered. It is proper to accept 1/3rd salary of the accused at Rs.3,65,123/- as the domestic expenditure incurred during the check period. Accordingly, Rs.3,65,123/- has been considered as the domestic expenditure of the accused.
29.1. The IO has considered the property purchased in the name of the accused No.4 as asset of the accused and registration and stamp duty of Rs.9,320/- paid during the registration of the said sale deed has been considered as expenditure of the accused. Similarly, the IO has considered the property appearing and purchased 82 82 Spl.C.C.No.232/2009 in the name of the accused No.3 as per Ex.P71 (page 49 to 56) and stamp duty paid for the registration is Rs.31,542/- and Ex.P71 (page 98 to 101) stamp duty and registration charges of Rs.18,500/-, Ex.P71 (page 28 to
41) Ex.P26 sale deed dtd.1.10.1999 purchased in the name of accused No.3 and stamp duty of Rs.18,040/- Ex.P32 lease cum sale agreement dtd.24.2.2003 executed by Umar Sab in favour of the accused No.3 and Ex.P71 sale deed (page No.110 to 117) dtd.25.2.2003 in the name of the accused No.3 and the stamp duty paid Rs.28,940/- has been considered as the expenditure of accused No.1.
29.2. This Court at the time of considering the assets of the accused, has already arrived to the definite conclusion that the properties purchased in the name of the accused No.3 and 4 are their absolute and exclusive properties. Moreover, the prosecution has failed to prove that the accused No.1 has purchased the above referred properties in the name of his parents, the deceased accused No.3 and 4 and those sale transactions are benami transactions. In the above circumstances, the IO 83 83 Spl.C.C.No.232/2009 considering the registration and stamp duty paid at the time of executing the sale deed as expenses of the accused is not correct.
29.3. In view of the findings under the head assets, the aforesaid properties purchased by the accused No.3 and his wife the accused No.4 have been considered as their separate property. Therefore, considering the stamp duty and registration charges paid by the deceased accused No.3 as assets of the accused No.1 is not proper. Accordingly, the conclusion arrived by the IO by including the registration charges and stamp duty as the expenses of the accused No.1 is liable to be rejected. In the result the above referred amounts in Table II Sl. No. 2,3, 5 to 8 are deleted under the head of expenses of the accused.
30.1. The IO has considered Rs.22,540/- as the expenses incurred at the time of execution of the sale deed dtd.23.1.1995 in respect of property in site No.3 Kodigehally, Yelahanka hobly in the name of the accused 84 84 Spl.C.C.No.232/2009 No.2. The prosecution has produced the original sale deed seized at the time of house search mahazar and it is marked as Ex.P79 (page No.49 to 56). The said sale deed is appearing in the name of the accused No.2.
30.2. The evidence of Dw.40 is that the vendor in the aforesaid sale deed had paid the stamp duty and registration charges at the time of execution of sale deed is unbelievable. While considering the assets of the accused, this property is considered as the asset of the accused No.1. Therefore, the registration charges and stamp duty paid during registration of the sale deed Rs.22,540/-has to be considered as the expenses of the accused. The accused in this regard has failed to prove the conclusion of the IO is incorrect. Accordingly, the stamp duty and registration expenses incurred by the accused No.2 at the time of the registration of sale deed is considered as the expenses of the accused during the check period.
31. The IO has considered Rs.23,140/- as the expenses of the accused incurred for the registration of 85 85 Spl.C.C.No.232/2009 Ex.P71 sale deed (page 125 to 131) dtd.13.10.2003 executed by Mr. S.K.Mariyappa in favour of the accused 2 Bilkis Jahan. There is no recital in the aforesaid sale deed dtd.13.10.2003 to the effect that the vendor had paid the stamp duty and registration fee. In normal sale transaction the purchaser makes payment of stamp duty and registration charges The accused has failed to make out the reason behind the vendor himself making payment of the stamp duty and the registration charges. It appears in order to enhance the income and for reduction of assets and expenditure the accused has made the false contention that while registration of the aforesaid sale deed, the vendor had paid the stamp duty and registration charges. Therefore, the method followed by the IO in considering Rs.23,140/- as the expenses of the accused at the time of registration of sale deed relating to four sites 42, 43, 78 and 79 purchased by the accused No.2 as the expenses of the accused does not require any interference. For the aforesaid reasons, Rs.23,140/- is considered as the expenses of the accused during the check period. 86 86
Spl.C.C.No.232/2009
32. The IO has considered Rs.94,266/- as the expenses of the accused incurred at the time of registration of sale deed dtd.20.10.2003. The IO during conducting the house search has seized the original sale deed marked as Ex.P71 (page 156 to 163). As per the recitals of the said sale deed, the accused No.2 and 3 have jointly purchased the said property. Dw.42 in para-1 of her evidence has admitted that she had paid part sale consideration of Rs.5 lakhs and the remaining amount of Rs.4 lakhs was paid by the accused No.3. While considering the assets of the accused, the investment made by accused No.2 to purchase the said property to the extent of her share of Rs.6.85 lakhs was considered as asset of the accused. The contribution of the accused No.2 in purchasing the aforesaid property Rs.6,85,000/- comes to 69.51% of the total consideration. Hence, while considering the expenses also the proportionate stamp duty and registration fees has to be considered as the expenses of the accused No.2. The total expenses incurred for the registration and stamp duty is Rs.94,266/- and on application of the above referred 87 87 Spl.C.C.No.232/2009 proportionate stamp duty and registration fees comes to Rs.65,514/-. Accordingly Rs.65,514/- has been considered as the expenses of the accused incurred at the time of the registration of sale deed dated.20.10.2003 in respect of site No.18 situated at Ramakrishna Layout Bengaluru.
33. The accused No.1 had purchased site No.2C 111 N.G.E.F. - East Layout, Bengaluru for Rs.55,145/- allotted by the BDA before the check period. Therefore, the IO has not considered the said property as the asset of the accused. But while considering the expenditure, he has included Rs.5,920/- as the expenses of the accused. As per the recitals of the sale deed the accused No.1 had paid the sale consideration during 1988 before the check period. The accused had paid Rs.5,920/- towards the stamp duty and registrations charges at the time of reregistration of the sale deed on 25.3.2004. The prosecution has produced possession certificate and copy of the registered sale deed marked as Ex.P71 (page No.92 to 97). From these documents the payment of Rs.5,920/- towards the registration charges has been proved by the prosecution. The accused in his evidence 88 88 Spl.C.C.No.232/2009 has not denied the payment of Rs.5,920/- towards the stamp duty and the registration charges. Therefore, there is no fault on the part of the IO in considering Rs.5,920/- as the expenses of the accused. Accordingly Rs. 5920/- is considered as the expenses of the accused during the check period.
34.1. The IO has considered Rs.2,75,000/- as the consideration paid in favour of Mr. Jayappareddy in connection with the GPA executed in favour of Smt.Sartaz Begum as the expenses of the accused. The prosecution has produced the original General Power of Attorney dated 20.1.1993 marked as Ex.P71 (page No.81 to 84) executed by Mr. Jayappa Reddy in favour of Smt.Shahataj Begum W/o.Hidayitulla Khan. The aforesaid original GPA and affidavit of Jayappareddy found during the search of the house of the accused and they were seized as per Ex.P-9 search mahazar. It appears, on the above circumstances the IO has considered Rs.2,75,000/- as the expenses of the accused. During cross-examination PW1 in para-35 has admitted that site No.111 in Sy.No.32/2 was not considered as the asset of the accused. 89 89
Spl.C.C.No.232/2009 34.2. Pw-21 Mr. Jayappa Reddy was examined on behalf of the prosecution and he has deposed regarding execution of the GPA in favour of Smt. Shehataj Begum. As per his evidence he is not aware how she is related with the accused No.1 As per his evidence, the GPA holder Smt. Shahataj Begam had paid the sale consideration of Rs.2,75,000/-. The witness has been cross-examined by the prosecution and it is suggested to the witness that Smt. Shehataj Begum is the sister-in-law of the accused and on her behalf the accused No.1 had paid the sale consideration of Rs.2,75,000/-. But Pw-21 has specifically denied the prosecution contention or the police have recorded his statement as per Ex.P77. During cross-examination of Pw21 the prosecution could not elicit any material evidence in support of the charge made against the accused.
34.3. Dw.26 Smt. Shehataj Begam has been examined on behalf of the defence. In para No.5 of her evidence she deposed that in 1993 she had purchased the site property from Mr. Jayappa Reddy by paying the 90 90 Spl.C.C.No.232/2009 sale consideration of Rs.2,75,000/-. The witness has admitted Ex.P71 (page No.81 to 84) GPA and the Affidavit executed by Pw-21 Mr. Jayappa Reddy. The prosecution during cross-examination of Dw.26 has challenged the financial capacity of the witness and payment of Rs.2,75,000/- as on the date of execution of the GPA in favour of the vendor Jayappareddy. It is suggested to the witness during cross-examination that she had affixed her signature on the GPA executed by Pw21 as per the instruction of the accused No.2 but she has denied the same.
34.4. The prosecution has also examined Dw.15 Mr. D. Naryana and he is the signatory to the aforesaid said GPA dtd.20.1.1993 as witness. During cross-examination of Dw.15 the prosecution has contended that for all these years Dw.26 has not obtained the registered sale deed from the vendor Mr. Jayappa Reddy. But during cross- examination of PW21, Dw.15 and Dw.26 the prosecution has failed to elicit any material admission to prove that at the instance of the accused No.1 and 2, Mr. Jayappa Reddy had executed GPA in favour of Dw.26. 91 91
Spl.C.C.No.232/2009 34.5. In order to prove the financial capacity, Dw.26 has produced Ex.D6 certified copy of the sale deed and Ex.D7 is the English translation of the said document. As per the recitals she had purchased the property as per sale deed dtd.21.10.1988 for Rs.96,000/-. The accused has also produced Ex.D8 sale deed dtd.27.2.1993 and Ex.D9 is the English translation of the said document. As per the said sale deed Dw.26 had purchased the property for Rs.2,70,000/-. Ex.D10 is the deed of absolute sale executed by Dw.26 as a GPA holder of Mr. Muniyamma in favour of S.Sudhakar and alienated the property for a consideration of Rs.1,92,000/-. But the said consideration of Rs.1,92,000/- cannot be considered as the income because Dw.26 as a GPA Holder on behalf of the vendor had received the amount and she is not having absolute right over the said amount. From the aforesaid documents and oral evidence of Dw.26, the accused has made out by placing prima-facie evidence to show the financial capacity of Smt. Shahataj Sultan. 92 92
Spl.C.C.No.232/2009 34.6. Therefore, the prosecution has failed to prove that the accused No.1 and 2 had paid Rs.2,75,000/- in favour of Pw21 Mr. Jayappa Reddy at the time of execution of GPA and affidavit dated.20.1.1993. In the result, the conclusion arrived by the IO in considering Rs.2,75,000/- as the expenses of the accused during the check period is not correct. Accordingly the said amount is deleted from the head of expenses of the accused.
35.1. The IO has considered Rs.1 lakh as the expenses of the accused relating to the agreement of sale entered between the deceased accused No.3 and Mr. Kondappa. During drawing of Ex.P-9 house search mahazar, the IO has seized the original unregistered agreement of sale dated 22.6.1995. As per the recitals of the said agreement of sale Ex.P71 (page 164 to 167) Shri Kondappa S/o.Venkatappa had executed the agreement in respect of site No.P-6 formed in Sy.No.56/2 of Geddahally village Bengaluru North Taluk for the consideration of Rs.180/- per one square feet. As per the contents of the document, the said site is totally measuring 4,800 Sq.feet within the boundaries more 93 93 Spl.C.C.No.232/2009 fully described in the schedule. As per the terms of the agreement, the purchaser had paid a sum of Rs.1,00,000/- on the date of agreement dated 22.6.1995. The time fixed for the performance of the contract is 3 months from the date of the agreement.
35.2. In page No.5 of the above referred agreement there are recitals regarding subsequent payments of Rs.50,000/- made on 22.1.1996 and Rs.1,80,000/- on 1.9.1996. The IO has not considered the aforesaid subsequent payment Rs.50,000/- on 22.1.1996 and Rs.1,80,000/- on 1.9.1996 in all Rs.2,30,000/-. Therefore, it is not proper to consider the said amount at this stage without giving an opportunity to the accused to explain the aforesaid transactions.
35.3. The prosecution has not examined the vendor Mr.Kondappa as a witness to prove the agreement transaction that the accused No.1 had paid advance sale consideration on behalf of the accused No.3. The document is neither signed by the accused No.1 and 2 nor there is evidence regarding presence of the accused 94 94 Spl.C.C.No.232/2009 No.1 at the time of entering the said agreement of sale. Therefore, though the prosecution is able to show that the agreement of sale document was found during the house search, but failed to prove that the accused No.1 had paid Rs.1 lakh as advance sale consideration in favour of Mr. Kondappa, the vendor of the property. From the date of agreement till the date of raid, the sale deed was also not executed in respect of the said property. Hence, the conclusion arrived by the IO in considering Rs.1 lakh as the expenses of the accused No.1 during the check period is not correct. Therefore, Rs.1 lakh included by the IO in the final report as the expenditure of the accused is liable to be deleted and accordingly it is excluded.
36.1. The IO has considered Rs.7,14,000 as the expenses of the accused in respect of the sale transaction and execution of GPA by Mr. Venkatappa in favour of the accused No.3. The prosecution has produced the original GPA dated 01.8.1997 at Ex.P62. As per the recitals of the said document Mr. Venkatappa is the owner of site No.3 situated at Kardiobanahally 95 95 Spl.C.C.No.232/2009 village, Yesvantpur hobly, Bengaluru. The vendor has shown to have delivered the possession of the property in favour of his attorney holder the accused No.3. The vendor on the same day on 1.8.1997 had also executed an affidavit in respect of the said property stating that he had received the sale consideration of Rs.7,14,000/- from the accused No.3. It is stated in the affidavit that the sale deed was not registered due to unavoidable reasons but reason was not specifically disclosed in the said affidavit.
36.2. The prosecution has examined Pw-9 Mr. B.V. Venkatappa and in his examination-in-chief he has deposed that the accused No.1 had requested him to execute the document and accordingly he had executed the GPA in favour of the accused No.3. He has identified his signature appearing in the said document. He specifically deposed that the accused No.1 had purchased the property in the name of his father the accused No.3 for Rs.7 lakhs and odd amount. During cross-examination, the witness has admitted that in respect of Sy.No.51, the accused No.1 and 3 had not paid 96 96 Spl.C.C.No.232/2009 any amount and in the year 2003 there was any transactions in between them.
36.3. Ex.P62 is the GPA and affidavit were executed on 1.8.1997 and Pw 9 in his evidence has specifically identified his signature appearing in the document and execution of the said document in favour of the accused No.3. The evidence of Pw.9 shows that the accused No.1 had actively participated in the process of execution of Ex.P62 GPA and said property transaction. The evidence of Pw-9 as deposed in his examination-in-chief had not been controverted in his cross-examination. Therefore the evidence of Pw-9 and Ex.P62 documentary evidence shows that he had executed the GPA at the instance of the accused No.1 in favour of the accused No.3 on 1.8.1987.
36.4. Dw.40 in his examination-in-chief para-34 has admitted the execution of Ex.P-62 GPA in favour of his father by Mr. Venkatappa. But as per the evidence of the accused there was no financial transaction took place in between them. During cross-examination in para-61 he 97 97 Spl.C.C.No.232/2009 has deposed that he is not concerned with the transaction between the accused No.3 and Pw.9 Venktappa. It is elicited during cross-examination that the aforesaid GPA so far has not been canceled. The accused has failed to explain how Ex.P-62 GPA and affidavit found in his house at the time of conducting the house search. Therefore, from the evidence of Pw.9 and documentary evidence Ex.P-62, GPA and affidavit, the prosecution has proved that the accused No.1 had paid Rs.7,14,000 sale consideration in favour of Pw9 Venktappa as on 1.8.1997. There is no reason to disbelieve the testimony of Pw9 regarding execution of Ex.P62 GPA in favour of the deceased accused No.3. In the above circumstances, the IO has rightly taken Rs.7,14,000/- as the expenses of the accused. The accused has failed to prove the conclusion arrived by the IO in considering the above said property as his assets is not correct. Accordingly Rs.7,14,000/- is considered as the asset of the accused.
37.1. The IO has considered Rs.5,15,000/- as the asset of the accused relating to the GPA executed by 98 98 Spl.C.C.No.232/2009 Smt. Mary Chandra in favour of the accused No.3 The prosecution during Ex.P-9 house search mahazar has seized the original GPA marked as per Ex.P71 and the GPA executed by Mary Chandra and affidavit are in page No.153 to 155.
37.2. The prosecution in order to prove the execution of the document has examined Pw22 Smt. Mary Chandra and in her evidence she deposed that she had agreed to sell site No.18 situated at Basaveswara Nagar Layout, in favour of the accused No.1 and had received part sale consideration of Rs.5 lakhs by executing the GPA in favour of the father of the accused No.1.
37.3. During cross-examination Pw.22 deposed that she had received advance sale consideration in 2-3 installments but she is not having any documents in proof to show that the accused No.1 had paid the said money. As per her evidence the Police Inspector Mr. Abdul Rehman is in possession of the said property and the tenant is in actual possession. The cross-examination 99 99 Spl.C.C.No.232/2009 of Pw.22 shows that she had received the advance amount from Abdul Rehman. It appears from her evidence that instead of deposing the name of accused No.1 Shami-ur Rehman, she has deposed as Abdul Rehman. She has specifically denied the suggestion tendered to her that since the accused No.1 had instructed her to approach civil court regarding the property dispute, she is deposing false evidence. If Abdul Rehman is in possession of the said property, there was no possibility of entering the above referred document Ex.P71 GPA and affidavit in favour of the accused No.3. The evidence placed on record show that the accused No.1 and Pw-22 are acquainted with each other and Pw.22 knows that the accused No.1 was working as the police inspector.
37.4. The document produced and marked at Ex.P71 (page 153, 154) dated 25.11.2005 shows that there was an agreement between the parties and the possession of the property was delivered in favour of the attorney holder i.e. the accused No.3. From the said document it can be ascertained that the property which 100 100 Spl.C.C.No.232/2009 is the subject matter of the sale consists of the building. Pw-22 by virtue of the GPA had authorized her attorney holder the accused No.3 to sell the property. As per the affidavit produced by the prosecution, on 25.11.2005 she had received Rs.5,15,000/- as part sale consideration by way of cash and delivered the possession of the property in favour of the purchaser. From the evidence of Pw22 and Ex.P71 documentary evidence, the prosecution is able to prove that she had executed the GPA and affidavit in favour of the accused No.3 and the accused No.1 had actually paid the sale consideration. During cross-examination of Pw-22 the accused has failed to elicit any material admission and hence her evidence can be accepted in arriving to the appropriate conclusion.
37.5. The accused got examined Dw.19 Mr. Anthony Raj who is the son of Pw22. In the examination-in-chief he deposed that they intended to sell the site No.18 in favour of Mr. Abdul Rehman. He has identified his signature appearing in Ex.P71 (page 153, 154, 155) GPA. As per his evidence the aforesaid site property which is the subject matter of the GPA is still in his possession and 101 101 Spl.C.C.No.232/2009 Dw.21 Siddiq Pasha @ Sadiq Pasha is in occupation of the said property as a tenant.
37.6. During cross-examination of Dw.19 the witness has admitted that his mother Pw22 had executed Ex.P71 (page No.153, 154) in favour of the accused No.3. He further admitted that as per the recitals of the document his mother had received Rs.5,15,000/- sale consideration, but shown ignorance that Pw22 had delivered the possession of the property in favour of the accused No.3. It is not in dispute that Pw.22 and Dw.19 are residing together in the same house. The evidence of Dw.19 shows that in order to overcome the evidence of Pw22 the mother Smt.Mary Chandra, the accused have examined her son Dw.19. But even after examination of Dw.19, the accused has failed to disprove the evidence of Pw.22. There is discrepancy regarding the actual sale consideration as shown in the GPA and affidavit and oral evidence of Pw.22. As per the evidence of Pw.22 the sale consideration is Rs.10 lakhs but in view of production of Ex.P71 GPA and affidavit it is proper to consider 102 102 Spl.C.C.No.232/2009 Rs.5,15,000/- as mentioned in the agreement as the actual sale consideration amount.
37.7. The accused got examined Dw.21 Mr. Sadiq pasha to prove that he is residing in the said property as a tenant under Dw.19. But the entire evidence of Dw.19 and Dw.21 is contrary to the testimony of Dw.22. Dw.19 has not deposed any evidence to the effect that his mother has deposed false evidence. The evidence of Pw.22 along with GPA and affidavit shows that the accused No.1 is in possession of the said property and he had paid the sale consideration of Rs.5,15,000/- on behalf of the accused No.3 There is every reason to believe that the accused No.1 and 3 got executed the GPA and affidavit in their favour from Pw22.
37.8. Dw.40 in his evidence para-35 has admitted that Pw22 had executed the GPA in favour of the accused No.3, but the said sale transaction was not completed. It is not the case of the accused in his evidence or during cross-examination of Pw.22 that the GPA executed by her in favour of the accused No.3 is a 103 103 Spl.C.C.No.232/2009 created document. In the above circumstances the conclusion arrived by the IO in considering Rs.5,15,000/- as the asset of the accused No.1 is proved from the prosecution evidence. In the result the aforesaid amount of Rs.5,15,000/- has been considered as the expenses of the accused during the check period.
38.1. The IO has considered the unregistered agreement of sale dated 22.3.2004 executed by Smt. Nanjamma and another in favour of the accused No.2 Smt. Bilkis Jahan and the sale consideration of Rs.1,08,000/- shown to have been paid therein as the expenditure of the accused. The prosecution has produced Ex.P71 (page No.85 to 91) agreement of sale seized during Ex.P9 house search mahazar. In the said agreement, the vendor Smt. Nanjamma or her son Mr. Basavaraj have not affixed their signature. It is true as per the recitals of the said agreement, the accused No.2 being the purchaser is shown to have paid Rs.1,08,000/- to the vendors and taken delivery of the possession of the property. But in the absence of signature of the vendors in the agreement of sale, it cannot be 104 104 Spl.C.C.No.232/2009 considered as an agreement between the parties in the eye of law.
38.2. The accused got examined smt. Nanjamma as Dw.1 and she has specifically denied execution of any agreement of sale in favour of the accused. During cross- examination, she has admitted that in Kodigehally she owns the site property and sold the same in favour of Mr. Aswathanaranaya and she never intended to sell the said property in favour of the accused. In the above circumstances, the approach of the IO in considering Rs.1,08,000/- as the expenditure of the accused No.1 on the strength of Ex.P71 (page No.85 to 91) draft agreement of sale is not correct. Accordingly, the amount of Rs.1,08,000/- is excluded from the head of expenditure of the accused.
39.1. The IO has considered Rs.35,000/- each as the expenses incurred by the accused No.1 and 2 to purchase the shares held by them in Canara bank. Pw.1 in his evidence in para-8 has deposed that he had secured Ex.P-16 document from the bank in order to prove that 105 105 Spl.C.C.No.232/2009 the accused No.1 and 2 had purchased the shares of Canara Bank by making investment of Rs.35,000/- each. As per Ex.P16 on 14.12.2002, the accused No.1 and 2 had purchased 1,000 shares each and price of each share is shown as Rs.35/- and the market value of the property as on 4.4.2006 is shown as Rs.271.75 per share. In the document marked as Ex.P70 Sl.No.1 to 4 the share certificates are appearing in the name of the accused No.1 and 2 along with payment receipt of Rs.35,000/- each and these documents have been seized during the house search mahazar.
39.2. Dw.40 in his evidence para-43 has deposed that himself and his wife had purchased 1,000 shares of Canara Bank and at that time, Dw.22 Mr.Abdul Majid had paid the money to purchase those shares. Similarly, Dw.42 in her evidence has deposed that Dw.22 had paid the money in order to purchase 1,000 shares from the Canara Bank. Dw.40 deposed that after 2 years from the date of purchase of shares he had paid Rs.10,000/- to 106 106 Spl.C.C.No.232/2009 Dw.22 and in the last month of 2006 he had repaid the remaining amount.
39.3. Dw.22 in his evidence has deposed that he had paid Rs.35,000/- each in favour of the accused No.1 and 2 in order to purchase 1000 shares each in their name. He further deposed that after 2 years, the accused No.1 and 2 repaid Rs.10,000/- and the balance amount was paid in the year 2006. During cross- examination the prosecution has specifically denied the alleged payment of Rs.35,000/- each by Dw.22 in favour of the accused No.1 and 2 in order to purchase 1000 shares of Canara bank. As per the evidence of Dw.22 he is the cloth merchant and there is no document to show that he had made financial assistance to the accused in order to purchase the shares in their name.
39.4. It is proper to mention here that during the house search, the share certificates appearing in the name of Dw.22 was also found in the house of the accused and it is produced and marked as Ex.P70 (Page No.15 and 16). As per the said document, Dw.22 had 107 107 Spl.C.C.No.232/2009 also purchased 1000 shares of Canara bank on 14.12.2002 for Rs.35,000/-. It is the explanation of the accused that when Dw-22 had handed over the share certificates appearing in their name, inadvertently his share certificate also came to their custody. The aforesaid explanation of the accused and Dw.22 witness is highly improbable and unacceptable. There is every possibility to infer that the accused No.1 on 14.12.2002 had purchased 1000 shares each in his name and in the name of his wife accused No.2 and at the same time he had purchased 1000 shares in the name of Dw.22 and retained the said share certificate with him. Dw.22 has also not produced any document to show that he had made payment of Rs.35,000/- each in favour of the accused No.1 and 2 to purchase the share or he had purchased those shares in the name of the accused No.1 and 2. The IO has not considered 1000 shares purchased in the name of Dw.22 for Rs.35,000/- as the expenses of the accused. In the facts and circumstances of the case since the original certificate is found in the possession of the accused No.1, the IO ought to have considered 108 108 Spl.C.C.No.232/2009 Rs.35,000 as the benami transaction made by the accused in the name of Dw-22. Since the IO has not considered the said amount as benami transaction made by the accused No.1, now it is not proper to consider the said amount as the expense of the accused without giving him an opportunity to the accused to explain the charge.
39.5. Therefore the IO has properly considered Rs.35,000/- each invested for purchasing the shares as expenditure of the accused No.1 and 2. The accused have failed to prove investment of Rs.70,000/- by Dw-22 to purchase 2000 shares in their name. Therefore, there is no necessity to interfere with the conclusion arrived by the IO in considering Rs.35,000/- each as the expenses of the accused. Accordingly, Rs.35,000/- each invested by the accused No.1 and 2 to purchase the shares is considered as the expenditure of the accused .
40. The IO has considered Rs.2,000/- rent paid to Mr. Gouse Pheer, Vijayanagar Bengaluru as the expenses of the accused during the check period. The accused has 109 109 Spl.C.C.No.232/2009 admitted the above said rent paid as his expense. Hence, the said fact does not require any further discussion. In the result, Rs.2,000/- rent paid by the accused in favour of Mr. Gousepheer is considered as the expense during the check period.
41. The IO has considered Rs.31,500/- rent paid to Mr. Shesha Jayaram, Vidyaranyapura, Bengaluru as the expenses of the accused during the check period. The accused as per memo dated 21.10.109 has admitted the above said rent paid as his expense. Hence, the said fact does not require any further discussion. In the result, Rs.31,500/- rent paid by the accused in favour of Mr. Shesha Jayaram is considered as his expense during the check period.
42.1. The IO has considered Rs.72,000/- rent paid by the accused in favour of Mr. E.Nagaiah, Geddalahalli, Bengaluru as the expenses of the accused during the check period. The prosecution in order to prove this fact has not produced any documentary evidence or examined the above said landlord Mr. E.Nagaiah to prove 110 110 Spl.C.C.No.232/2009 the transaction. According to the accused, from 1.10.1995 to 27.9.2001 he was staying in the house of Mr. E Nagaiah on lease by making payment of Rs.1 lakh and after completion of the lease period, he had received the lease amount from the said landlord.
42.2. Dw.40 in his evidence para-98 has deposed that he was residing in the house of Mr. E.Nagaiah as per lease agreement. Dw.2 - Smt.Jayamma examined by the accused has deposed that her deceased husband had delivered the possession of the house property in favour of the accused No.1 on lease for a sum of Rs.1 lakh. She has further deposed that after completion of the lease period her husband had repaid the lease amount when the accused had vacated the residential premises. During cross-examination Dw.2 has admitted that there is no documentary evidence to prove the alleged lease agreement between her deceased husband and the accused.
42.3. The accused in his schedule explanation marked as per Ex.P-53 annexure-40 Sl.No.14 has 111 111 Spl.C.C.No.232/2009 specifically admitted that from 01.10.1995 to 27.9.2001 for 72 months he had paid the rent of Rs.72,000/- to the land lord. In order to prove his co-brother Mr.Hidaitulla khan was residing with him or had shared the rent and household expenses, the accused has not placed any acceptable evidence.
42.4. It is the argument addressed on behalf of the accused that anything incriminating furnished in Ex.P53 schedule cannot be taken as admission and the prosecution has duty to show that Section 18 and 31 of the Evidence Act is controlled by Article-20 (3) of Constitution of India. As per Article 20(3) of the Constitution of India, no person accused of any offence shall be compelled to be a witness against himself. The accused under Section 21 of the PC ACT has right to give or refrain from giving the evidence. But in the case on hand the accused No.1 as Dw-40 voluntarily on his own request in writing has stepped into the witness box to give evidence in support of his defence. He has not disputed the correctness or otherwise of Ex.P53 schedule explanation. Therefore, the explanation offered and the 112 112 Spl.C.C.No.232/2009 contention of the accused that he is having protection under Article 20(3) of the Constitution is not correct. The accused during his evidence in order to reduce the expenses has changed his version by claiming that on lease agreement he was in occupation of the residential premises of Mr. E. Nagaiah.
42.5. In this regard it is also proper to refer as per Section 58 of the Indian Evidence Act, facts admitted need not be proved. If the explanation submitted by the accused is false, the prosecution can show it as false but in the event the information furnished by the accused is correct, there is no onus on the part of the prosecution to prove the document unless the court directs otherwise. It is the burden of the accused No.1 to prove from 1.10.1995 to 27.9.2001 he was in occupation of the residential premises of Mr. E.Nagaiah as per the lease agreement. In the case on hand, except the oral evidence of Dw.2 and the accused, there is no other document in support of the aforesaid contention. Moreover, the accused has also not produced any documents to show that after vacating the residential 113 113 Spl.C.C.No.232/2009 premises, the landlord Mr. E Nagaiah had repaid the lease amount of Rs.1 lakh. In the above circumstances the oral evidence of Dw.2 and self serving statement of Dw.40 regarding the lease transaction deserves to be rejected. The explanation forwarded by the accused in his schedule marked as Ex.P-53 by admitting he had paid Rs.72,000/- rent in favour of Mr. E.Nagaiah is accepted. In the above circumstances, the IO considering Rs.72,000/- as the expenses of the accused is accepted. Accordingly, Rs.72,000/- rent paid to Mr. E.Nagaiah has been considered as the expenses of the accused during the check period.
43.1. The IO has considered Rs.95,000/- rent paid in respect of the house No.43 Ramakrishna Layout, Geddalhally for the period June 2002 to June 2004 as the expenses of the accused. The prosecution in order to prove the said transaction has examined Pw-11 Mr. C.Prashanth as a witness. But during examination-in- chief he did not support the prosecution case. During cross-examination of the witness by the public prosecutor, the statement recorded by the police during 114 114 Spl.C.C.No.232/2009 the investigation under Section 161 of the Cr.P.C. has been denied and it is marked as per Ex.P64. But in order to prove that the accused was residing in the house of Pw11, on payment of lease amount of Rs.1,50,000/- the accused has not produced any documents. Pw.11 in his evidence has admitted that the accused was in occupation of the premises on payment of Rs.1,50,000/- lease amount. It is the burden on the accused to prove he was residing in the house of Pw.11 on lease.
43.2. Dw.40 in his evidence para-98 has deposed that he had paid Rs.1,50,000/- lease amount to Pw.11. The accused in Ex.P2 schedule explanation page-58 has specifically admitted that during the check period he had spent Rs.2,63,210/- towards housing and amenities. Therefore, there is no impediment in considering the admitted amount of Rs.2,63,210/- as the rent paid by the accused in favour of the landlords. Therefore, there is no fault on the part of the IO in considering Rs.95,000/- rent paid as the expenses of the accused during the check period. In the result, there is no need to interfere in the conclusion of the IO and accordingly Rs.95,000/- is 115 115 Spl.C.C.No.232/2009 considered as the expenses of the accused during the check period.
44. The prosecution has considered Rs.20,037/- as the electricity charge for the house No.43, Ramakrishnappa Layout, Geddahally, Sanjaya nagar, Bengaluru as the expenses of the accused during the check period. Pw.11 during his evidence has deposed that when the accused was occupying the premises, he was paying the electricity amount. The accused as per memo dtd.21.10.2019 has admitted the payment of electricity charges of Rs.20,037/- during the check period. Accordingly, the IO has properly considered the aforesaid amount as the expenses of the accused. Hence, without any further discussion, the aforesaid amount of Rs.20,037/- has been considered as the expenses of the accused during the check period.
45. The IO has considered Rs.4,242/- as the water charges paid by the accused when he was occupying house No.43 Ramakrishnappa layout, Sanjay nagar Bengaluru under the head as the expenses. The 116 116 Spl.C.C.No.232/2009 prosecution in order to prove the aforesaid fact has not produced any document. Pw.11 the landlord of the accused in his evidence has deposed that he was paying the water charges when the accused was occupying the residential premises. In the absence of documentary evidence on behalf of the prosecution, oral evidence of Pw.11 has to be accepted. During examination of Pw.1 the prosecution has not got marked any documents in support of the expenses of the accused under the aforesaid head. In the result, the approach of the IO in considering Rs.4,242/- as the expenses of the accused is not correct. Accordingly, the said amount is excluded from the head of expenses of the accused.
46.1. The IO has considered rent paid by the accused from July 2004 to March 2006 in respect of house No.13/15 AECS Layout, Sanjaynagar Bengaluru Rs.1,33,000/- as the expenses of the during the check period. The accused has admitted that from October- 2005 he was residing in the rented premises on monthly rent of Rs.3,000/- and paid Rs.9,000/- up to December- 2005. Dw.40 in his evidence para-95 has deposed that 117 117 Spl.C.C.No.232/2009 he had paid the balance rent to the landlord after June- 2006. The prosecution in order to prove the payment of rent of Rs.1,33,000/- has not produced any documents or examined the landlord.
46.2. The accused in order to show in the month of June-2006 he had paid the remaining rent has also not produced any documentary evidence. The approach of the IO in considering rent of Rs.1,33,000/- from July-2004 to March-2006 at the rate of Rs.7,000/- per month is not correct. The IO during investigation has recorded the statement of Nagesh S/o.B.H.Shivaiah on 29.8.2008, but he has not been examined as the witness. The accused has also not produced any documents to prove he was making the payment of Rs.3,000/- per month as the house rent. As per the contents of Ex.P9 search mahazar, there is a specific mention that as on the date of raid, the owner Nagesh was abroad. In the above circumstances, except the oral evidence of Pw.1 the prosecution has failed to produce any documents to prove that the accused was residing in the said house as a tenant on a monthly rent of Rs.7,000/- for 19 months 118 118 Spl.C.C.No.232/2009 and paid rent of Rs.1,33,000/-. In the above circumstances, in view of the admission of the accused that the monthly rent is Rs.3,000/- and the said admitted rent is considered as the expenses of the accused up to Feb-2006 and it comes to total Rs.60,000/-. The prosecution has failed to prove that the accused had paid the rent of Rs.1,33,000/- during the check period from July-2004 to Feb-2006. In the result Rs.60,000/- amount is considered as the expenses of the accused during the check period.
47. The IO has considered Rs.2,699/- as the electricity charges of house No.13/15, 15 th Cross, AECSE Layout, Sanjay Nagar, Bengaluru as the expenses of the accused during the check period. The accused in the memo filed on dated 21.10.2019 has admitted the payment of electricity charge of the above said residential premises. Hence, the aforesaid admitted amount of Rs.2,699/- has been considered as the expenses of the accused during the check period. 119 119
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48. The IO has considered Rs.17,260/- paid towards the water charges of house No.13/15, 15 th Cross, AECSE Layout, Sanjay Nagar, Bengaluru under the head of expenses. Dw.40 in his evidence para-98 has deposed that he was residing in the ground floor of the said building and another tenant was residing in the first floor of the same building. According to the accused, the water charges were shared by two tenants equally for Rs.8,630/-. In order to show that the accused No.1 has exclusively paid the entire water charges of Rs.17,260/- the prosecution has not produced any documents. It is the admitted case of the accused that during the check period he had paid water charges of Rs.8,630/- of his share. In the above circumstances, the conclusion of the IO in considering entire amount of Rs.17,260/- as the expenses of the accused towards the payment of water charges is partly accepted. In the absence of any convincing documentary evidence from the prosecution side, the aforesaid admitted amount is considered as the expenses of the accused during the check period. Accordingly, Rs.8,630/- admitted amount of the accused 120 120 Spl.C.C.No.232/2009 paid towards the water charges is considered as his expenses during the check period.
49. The IO has considered the following amounts:
a) Cooking gas consumption Rs.4,411.00
b) Subscription for Islamic voice Rs.1,000.00
c) Subscription for film fare magazine Rs.210.00 as the expenses of the accused during the check period.
The accused as per memo dated 22.10.2019 has admitted the aforesaid amount under different heads as the expenses incurred by him during the check period. Hence, the aforesaid admitted amount of the accused are considered as the expenses during the check period.
50.1. The IO has considered Rs.32,900/- as the value of the Kinetic Honda vehicle and Rs.385/- insurance premium paid as the expenses of the accused. The prosecution in order to prove the expenses under the aforesaid head has produced policy of insurance issued by National Insurance Company Ltd. and the said document came to be seized at the time of conducting 121 121 Spl.C.C.No.232/2009 the house search mahazar. The accused during cross- examination of Pw.1 in para-52 has contended that in the absence of valid documentary evidence considering Rs.32,900/- as the expenses is not correct.
50.2. As per Ex.P72 (page 1 to 4) the prosecution has produced the original vehicle insurance policy dated 25.4.1996. The said policy was issued in the name of the accused No.1 for the period 23.4.1996 to 24.2.1997 and the value of the vehicle/Kinetic Honda is shown as Rs.32,900/- and it is a new vehicle. Therefore, it is incumbent upon the accused to furnish the required particulars of the said vehicle. In Ex.P-52 schedule explanation page No.48 and 49 the accused has failed to furnish the details of the said vehicle. As per Section 106 of Indian Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The accused either in his evidence or during cross-examination of Pw.1 has not forwarded any explanation how Ex.P72 insurance policy relating to a new vehicle found in his house at the time of house search mahazar. From the said document this 122 122 Spl.C.C.No.232/2009 Court can draw an inference that he had purchased the new Kinetic Honda vehicle for Rs.32,900/- and at that time he got insured the said vehicle and hence the insurance policy came to be issued in his name. In the absence of the purchase of the said vehicle, the possibility of the accused obtaining the insurance for the said vehicle in his name is highly improbable. Therefore, the IO is justified in considering Rs.32,900/- value of the vehicle and Rs. 385/- insurance premium as the expenses of the accused incurred to purchase Kinetic honda vehicle in his name in the month of April-1996. Accordingly, Rs.32,900/- and Rs.385/- are considered as the expenses of the accused during the check period.
51.1. The IO has considered Rs.1,76,691/- as the insurance premium amount in respect of the policy appearing in the name of accused No.1 and Rs.69,813/- as the premium amount paid by accused No. 2 during the check period as their expenses. The prosecution has produced Ex.P72 (page No.19 to 52) documents seized during the house search in support of the above head of charge against the accused. As per Ex.P72, policy 123 123 Spl.C.C.No.232/2009 No.00063123 was issued on 23.9.2003 in the name of the accused No.2 for yearly premium of Rs.23,271/-. The other policy No.00063126 was issued in the name of the accused No.1 on the same day 23.9.2003 and the annual premium amount is Rs.53,897/-. Therefore, the premium paid by accused No.1 and 2 from Sept-2003 to Sept-2005 for three years has been considered by the prosecution as the expenses during the check period.
51.2. Dw.40 in his evidence para-42 has deposed that Dw.12 Smt.Milan @ Kaveramma the insurance agent had paid the first premium amount of Rs.58,897/- and Rs.23,271/- respectively and after 2 years he had repaid the said amount to her. Dw.42 in para-17 of her evidence has deposed that Dw.12 had paid the first premium amount of Rs.23,700/-. During cross- examination of Dw.42 in para-35 the prosecution has specifically disputed the alleged payment of first premium amount to ING Vysya bank by the insurance agent. During cross-examination of Dw.40 in para-68 the accused No.1 has admitted that there are no documents 124 124 Spl.C.C.No.232/2009 to show that Dw.12 had paid the first premium of two insurance policy on their behalf to the ING Vysya Bank. 51.3. Dw.12 Smt.Milan in her evidence has deposed that she is working as the insurance agent of ING Vysya Bank and she had made two insurance policy in the name of the accused No.1 and 2. During her examination she has identified her signature appearing in Ex.P72 policy (page No.30). She further deposed that she had paid the first premium amount of Rs.58,897/- and Rs.27,271/- on behalf of the accused No.1 and 2 to the company and has not received the said amount from them. 51.4. During cross-examination Dw.12 has admitted that there are bank documents to show the payment of premium as contended by her on behalf of accused No.1 and 2. But the said documents were not produced before the Court for the reasons best known to the accused and the said witness. It is further elicited that she was the agent in 30-35 insurance policy and among them she had paid only 1st premium amount in favour of two policy holders. It is suggested to the witness that in order to 125 125 Spl.C.C.No.232/2009 assist the accused to increase the income she is deposing falsely. The admission of Dw.12 elicited during her cross-examination creates doubt regarding the alleged payment of first premium by her in respect of above referred two insurance policies to ING Vysya bank.
51.5. It is necessary to consider one more aspect that the signature of the Dw12 is not appearing in Ex.P72 (page No.48). Therefore it is proved that she is not the agent of the policy purchased in the name of the accused No.1. In the said document one K.C.Madhukiran has affixed his signature. Hence, Dw.12 had paid Rs.23,271/- and Rs.58,897/- premium amount relating to ING Vysya Bank life insurance policy as contended by Dws. 40 and 42 is not believable. The evidence of Dw.12 is not trustworthy to accept her version. The failure of Dw.12 to produce her bank documents to show the alleged payment of the premium by her is one of the grounds to disbelieve her version. Even in the annexure of the accused Ex.P52 (page No.72 to 77) there is no 126 126 Spl.C.C.No.232/2009 reference regarding payment of first premium amount by Dw.12 to the ING Vysya Life Insurance Company.
51.6. The reason behind non-production of the documents by Dw12 may be that if it is produced it may go against her oral evidence. Therefore adverse inference as required under Section 114 (g) of Indian Evidence Act is drawn. In the absence of documentary evidence, it is not safe to rely only the oral evidence of Dw.12 to consider payment of first premium amount on behalf of the accused. The said witness has withheld the alleged bank document/statement of account. Accordingly, the IO is fully justified in considering Rs.1,76,691/- and Rs.69,813/- as the premium amount paid by the accused during the check period as the expenses. Therefore the aforesaid amount of Rs.1,76,691/- and Rs.69,813/- are considered as the expenses of the accused during the check period.
52. The IO has considered the following amounts as the expenditure of the accused during the check period: 127 127
Spl.C.C.No.232/2009
a) Postal life insurance policy Rs.42,840/-
b) NSC purchased Rs.25,000/-
c) Shares purchased Rs.131,868/-
d) Loan Canara Bank DPN/NP 59-94 Rs.26,500/-
e) Loan Canara Bank DPN/NP 13-95 Rs.87,999/-
f) Loan State Bank of Hyderabad Rs.31,926/-
A/c.No.1823
g) Loan Andhra Bank A/c.No.2-95/96 Rs.68,245/-
h) Loan State Bank of Hyderabad Rs.42,707/-
A/c.No.JL 1901
i) Loan State Bank of Hyderabad Rs.42,162/-
A/c.No.1839
j) Loan State Bank of Hyderabad Rs.40,158/-
A/c.No.JL-1945
The accused as per memo dated 21.10.2019 has not disputed the above transactions and expenses incurred by him during the check period. Therefore, facts admitted need not be proved. In the above circumstances without referring to the documents produced by the prosecution and evidence of Pw.1, the aforesaid expenditures are considered by the IO as the expenses of the accused is accepted. Accordingly, the aforesaid amounts are considered as the expenses of the accused during the check period.128 128
Spl.C.C.No.232/2009 53.1. The IO has considered Rs.4,21,726/- as the expenses of the accused incurred by him during the check period for the education of his three children. The details of the charge is Educational expenditures:-
Sl. Name of the School/ Year Class Amount in No. Child College Rs.
1 Gia-Ur- Cluny 1992-93 II Std. 3,740/-
Rahaman Convent High to to
School 1994-95 IV
St.Josephs 1995-96 IV Std. 39,920/-
Boys High to To X
School, 2001-02
Bengaluru.
MES Pre- 2002-03 I & II 6,326/-
University to PUC
College, 2003-04
Bengaluru
M.S.Ramaiah 2004-05 B.E. 2,19,715/-
Institute of to
Technology 2005-06
2 Bashra Afsa Oriental 1991-92 LKG to 1,380/-
English to Prepar
School 1993-94 atory
Sophia High 1996 II Std 67,550/-
School to 2005 to X
MES Kishore 2005-06 I PUC 14,090/-
Kendra
3 Sana-Ur- Sophia High 1998-99 Prepar 33,955/-
Rahaman School to atory
2002-03 to III
Std.
Presidency 2004-05 IV & V 35,050/-
School to Std.
2005-06
129
129
Spl.C.C.No.232/2009
Total 4,21,726/-
53.2. According to the accused, Dw.40 in para No.39 and 40 of his evidence has deposed that his father the deceased accused No.3 had paid a sum of Rs.1,06,010/-
in favour of M.S.Ramaiah College through demand draft drawn on Canara Bank, Gokula Branch, Bengaluru through Dw4 towards the education expenses of Mr. Zia Ur Rehman. He further deposed that on 19.6.2005 the accused No.3 has withdrawn a sum of Rs.1 lakh from his bank account and has deposited the said amount to M.S.Ramaiah College, towards the education expenses of Mr. Zia -Ur-Rehaman.
53.3. Dw40 in para-96 of his evidence has deposed that towards educational expenses of his children the accused No.3 had paid Rs.2 lakhs and Dw.34 Mr. Nishar Ur Rehman had spent a sum of Rs.1,70,000/-. During cross-examination in para-67 and 129, the prosecution has specifically disputed the contention that the accused No.3 had spent the amount towards the educational expenses of Mr. Zia Ur Rehman. In para-129 Dw40 has 130 130 Spl.C.C.No.232/2009 admitted that there is no documentary evidence to show payment of Rs.1,70,000/- by DW34 Mr. Nishar Ur Rehman.
53.4. Dw4 Mr. Chandrashekar in his evidence (para No.4) has deposed that the accused No.3 has paid a sum of Rs.1,06,180/- through Cheque and he has deposited the said amount on behalf of Mr. Zia Ur Rehman in M.S.Ramaiah College, towards the college fee. During cross-examination of Dw.4 the prosecution has not challenged the aforesaid evidence regarding payment of fee.
53.5. Dw.34 Mr. Nishar Ur Rehman in his evidence (para No.3) has deposed that he had paid Rs.97,000/- towards education expenses of Mr. Zia Ur Rehman and Rs.85,000/- towards the education expenses of daughter of the accused No.1 Ms. Bushra Afza. During cross- examination of Dw.34 it is suggested to the witness that he was working at Qatar during the relevant time and hence there was no need for him to spend his earnings to 131 131 Spl.C.C.No.232/2009 meet the educational expenses of the children of the accused No.1.
53.6. The accused No.1 in the schedule marked as Ex.P53 (page No.172 to 175) has admitted the educational expenses of his children is Rs.4,20,175/-. It is further stated that out of the aforesaid amount, the accused No.3 had paid Rs.1,06,010/- and Dw-34 had paid Rs.1,58,760/- + Rs.85,700/- towards the education of Zia-Ur-Rehaman and Ms. Bushra Afza. The accused No.1 and 2 have admitted towards the education of their second son Sana Ur Rehaman they had spent Rs.69,705/-. The accused along with the schedule has not produced any documents in support of the defence.
53.7. The IO has secured the documents marked as Ex.P-12, 14, 17, 19, 22, 25, 37 ( page 58 to 67) and Ex.P41 during the investigation regarding the total educational expenses of children of the accused No.1 and
2. It is not the burden on the prosecution to prove and to ascertain whether the accused No.1 and 2 have personally paid the said amount or the fee was paid by 132 132 Spl.C.C.No.232/2009 any other person on their behalf. It is the specific defence of the accused that his deceased father the accused No.3 and Dw34 Mr. Nishar Ur Rehman had paid the school fees of Mr. Zia Ur Rehman and Ms. Bushra Afza. Therefore, it is the onus on the accused to prove by placing positive evidence regarding the educational expenses of their children and it was spent by the accused No.3 and Dw.34.
53.8. The contention of the accused during the cross-examination of Pw.1 in para-27 that the prosecution has failed to secure receipt, voucher, bill from the college cannot be accepted. The original documents regarding payment of school fees are with the accused. Therefore it is the duty of the accused No.1 and 2 to produce the documents to prove their defence. The payment of school fees on behalf of children of accused No.1 and 2 is within their exclusive knowledge. Therefore, as per 106 of Indian Evidence Act the accused are required to prove their defence by preponderance of probability. 133 133
Spl.C.C.No.232/2009 53.9. Ex.P31 document produced by the prosecution does not contain any details of payment of Rs.1,06,010/- through cheque No.251615 Rs.1 lakh on 19.6.2005. In the absence of satisfactory evidence on behalf of the accused, the interested testimony of Dws.4, 34 and 40 is not sufficient to arrive to the conclusion that the accused No.3 and Dw.34 had spent substantial amount to meet the educational expenses of Mr. Zia Ur Rehman and Ms. Bushra Afza. In the above circumstances, in the absence of documentary evidence on behalf of the accused, oral evidence of Pw.1 coupled with documents produced by the prosecution referred here-in-above are to be accepted. Therefore the prosecution is able to prove that the accused had spent Rs.4,21,726/- towards the educational expenses of their children. For the aforesaid reasons the conclusion arrived by the IO in this regard is accepted and Rs.4,21,726/- amount is considered as the educational expenses of children of accused during the check period.
134134
Spl.C.C.No.232/2009 54.1. It is contended by the accused that the accused No.2 had borrowed loan of Rs.25 lakhs from Gandhinagar Co-operative Society in 2004. As per the evidence during the year 2004-2006 was the moratorium period and during the said period they had repaid Rs.1,74,000/- to the Society. In proof of their contention, they have produced Ex.D-60 the account extract. As per the evidence of Dw.42 in para-27, deposed that the accused No.3 had repaid the said amount to the Bank. In Ex.D-60 the account extract page-9 there is reference regarding sanction of mortgage loan of Rs.25 lakhs in favour of the accused No.2 on 20.2.2004 and two years is the moratorium period and in 6 years equated monthly installments, the accused No.2 was required to make repayment of the entire loan amount.
54.2. During cross-examination of Dw.42 in para-27 the witness has admitted that she has not produced any documents to show the deceased accused No.3 had repaid Rs.1,74,000/- to the co-operative society. The prosecution has not disputed Ex.D-60 loan transaction documents produced by the accused. Hence, the 135 135 Spl.C.C.No.232/2009 admitted amount of Rs.1,74,000/- interest on the loan amount repaid to Gandhinagar Credit Co-operative Society is considered as the expenses of the accused during the check period. When the accused has failed to prove that the accused No.3 had repaid the said amount, the inference to be drawn is that the accused No.2 being the borrower had repaid the said amount. Accordingly, Rs.1,74,000/- interest on loan amount repaid by the accused No.2 is considered as the expenses of the accused No.1 during the check period.
55. For the forgoing the reasons this court arrived to the definite conclusion that the following are the details of the expenses of the accused during the check period.
TABLE II Sl.
Particulars of expenditure Value (in Rs.) No. 3,65,123/-
1 Domestic expenditure Site No.5, measuring 30' x 80', House List No.317/Ic, VP Katha No.116, Halage devarahalli for 2 registration and 2080/- towards stamp fee.
136136
Spl.C.C.No.232/2009 2 acres and 4 guntas of land in Sy.No.21/2 of Chikkabetta-halli, 3 for registration and Rs 2080/-
towards stamp fee.
Site No.3, measuring 50' x 80' katha No.582, S/3, Kodigehalli, 4 22,540/-
for registration and stamp fee
Site No.21A, measuring 30'x40',
in Sy.No. 102 of
5 Cholanayakanahalli, registration
and stamp fee
Site No.33, 30'+30' x
40'+41'x2, Sy.No.9/3, katha
6
No.306/33 Chikkabettahalli.
Site No.561, measuring 60'x40',
P2, Society No.4714, Ideal
7 Homes, Mysore Road,
Kenchanahalli.
Site No.21B, measuring 40'x35',
in Sy.No.102, Cholanayakana
8
halli.
4 sites, bearing Nos 42, 43, 78
and 79 each measuring 30' x
9 40', in Kenchanahalli, 23,140/-
Yalahanka.
Site measuring 82'x40', at
10 No.18, 4th Cross, GM
Ramakrishnappa Layout. 65,514/-
Site measuring 12.20 x 18.30
meters, at No.2 C 111 - NGEF -
11 5,920/-
East Layout, Bangalore.
137
137
Spl.C.C.No.232/2009
A GPA from one Jayappa Reddy
to Smt.Sartaj Begam W/o AGO
in respect of site measuring 60'
12
x 40' at No.111 in Sy.No.30/2 of
Geddalahalli.
A sale agreement between
Sri.Shaik Bale father of the AGO
13
and Kodandappa.
A GPA from one Venkatappa S/o
Venkata Bovi, 71, Bovipalya, 1
14 block, Rajajinagar, Bangalore to 7,14,000/-
Sri.Shaik Bale.
A GPA from one Smt.Mary
Chandra, to Sri.Shaik Bale Sab,
15 5,15,000/-
father of AGO.
An unregistered sale deed
dated 22.03.2004, between
16 Smt.Nanjamma and Smt.Bilkish
Jahan W/o AGO.
AGO has purchased 1000
17 35,000/-
shares from Canara Bank.
AGO has purchased 1000
shares from Canara Bank at 35/-
18 each in the name of his wife 35,000/-
Smt.Bilkish Jahan.
Rent paid to Ghousepeer,
Krishna Nanda Rao, No.2208, 4th
19 'A' Cross, Vijayanagar, 2,000/-
Bangalore
Rent paid to Shesha Jayaram
W/o M.G.Jayaram, No.453, HMT
20 Layout, Vidyaranya Pura, 31,500/-
Bangalore 97.
138
138
Spl.C.C.No.232/2009
Rent paid to E.Nagaiah S/o
Enogowda, KEB Layout No.112,
21 1st Cross, Geddalahalli, 72,000/-
Bengaluru.
Rent for house No.43, 3rd Cross,
22 Ramakrishnappa Layout, 95,000/-
Geddalahalli, Sanjayanagar.
Electricity charges for house
No.43, 3rd Cross,
23 Ramakrishnappa Layout, 20,037/-
Geddalahalli, Sanjayanagar.
Water charges for house No.43,
3rd Cross, Ramakrishnappa
24 Layout, Geddalahalli,
Sanjayanagar.
Rent for house No.13/15, 15th
25 Cross, AECS Layout, II Stage, 60,000/-
Sanjayanagar, Bengaluru.
Electricity charges house
No.13/15, 15 th
Cross, AECS
26 Layout, II Stage, Sanjayanagar, 2,699/-
Bengaluru.
Water charges house No.13/15,
15th Cross, AECS Layout, II
27 Stage, Sanjayanagar, 8,630/-
Bengaluru.
28 Cooking gas consumption 4,411/-
29 Subscription for Islamic voice 1,000/-
Subscription for Film fare
30 210/-
magazine
139
139
Spl.C.C.No.232/2009
National Insurance for Kinetic
31 385/-
Honda - Insurance
32 Value of kinetic Honda vehicle 32,900/-
33 ING Vysya Insurance 1,76,691/-
34 ING Vysya Insurance 69,813/-
Postal Life Insurance Policy
35 42,840/-
bearing No.KTCE04729
36 NSC purchase 25,000/-
37 Shares purchase 1,31,868/-
Loan - Canara Bank DPN/NP/59-
38 26,500/-
94
Loan - Canara Bank DON/NP/13-
39 87,999/-
95
Loan State Bank of Hyderabad
40 31,926/-
A/c No.1823
41 Loan Andra Bank A/c No.2-95-96 68,245/-
Loan - State Bank of
42 42,707/-
Hyderabad, A/c No.JL/1901
Loan - State Bank of
43 42,162/-
Hyderabad, Ac No.1839
Loan State Bank of Hyderabad,
44 40,158/-
A/c No.JL/1945
140
140
Spl.C.C.No.232/2009
4,21,726/-
45 Educational expenditures
Repayment of interest on loan
46 in Gandinagar Credit Co- 1,74,000/-
operative Society
Total Rs.34,93,644/-
56.1. The IO in the final report and the charge sheet has considered the sources of the income of the accused under the following heads:
Table III Sl.
Particulars of income (in Rs.)
No.
1 Income from salary 10,95,369/-
Income obtained from selling
2 5,52,000/-
sites
Loan -Canara Bank DPN/NP/59-
3 25,000/-
94
Loan State Bank of Hyderabad
4 25,000/-
A/c No.1823
Loan - Andra Bank A/c No.2-95-
5 45,000/-
96
Loan - Canara Bank DPN/NP/13-
6 66,500/-
95
141
141
Spl.C.C.No.232/2009
Loan - State Bank of Hyderabad,
7 25,000/-
A/c No.1839
8 Loan from Nissar Ur Rahaman 55,000/-
Loan - State Bank of Hyderabad
9 36,000/-
A/c No.JL/1901
Loan State Bank of Hyderabad
10 30,000/-
A/c No.JL/1945
Loan from Chandra Shekar (by
11 4,25,000/-
cheque)
Loan from M/s Mohan & Co., (by
12 90,000/-
cheque)
13 Loan from B.Shankar (By cheque) 20,000/-
14 Loan from Sajid (By cheque) 2,00,000/-
15 Interest from bank 20,849.37
16 NSC Encashment 51,988/-
17 PLI Policy proceeds 72,529/-
18 LIC Policy proceeds 94,944/-
19 Gift from father Sri.Shaik Bale 5,00,000/-
Earning of other family members
20 25,000/-
(wife salary)
142
142
Spl.C.C.No.232/2009
Total 34,55,179.37
56.2 The accused has admitted all the above heads of income considered by the IO to the extent of Rs.34,55,179/-. Hence when there is no dispute regarding the above admitted income, there is no necessity to consider the documentary and oral evidence produced by the prosecution touching these aspects. As per the submission of the accused, in addition to the aforesaid heads he is having other sources of legitimate income which were not considered by the IO. Therefore, it is necessary to consider the income of the accused which were not considered by the IO during investigation.
57.1. The IO has considered the salary income of the accused as Rs.10,95,369/-. According to the accused, he joined the service in the year 1977 and salary earned from the date of joining the service till 1.8.1991 as on the commencement of the check period is Rs.2,65,248/- has to be considered as his income. It is further submitted that out of the aforesaid salary from the date of service 143 143 Spl.C.C.No.232/2009 till the commencement of check period 1/3rd shall be deducted towards the personal expenditure and the remaining amount should be considered as his savings.
57.2 In this regard it is apposite to refer the decision relied by the accused referred supra in Pollonji Darabshaw Daruwalla case the Hon'ble Supreme Court held that it is for the prosecution to chose what according to it is the period which having acquisitive activities in amassing wealth and isolate that period for a special scrutiny. Therefore, it is not necessary for the prosecution to consider the date of joining the service as the commencement of check period and it is in the exclusive domain of IO.
57.3. It is not the case of the accused that IO has failed to consider income from the salary during the check period. When the charge against the accused regarding acquisition of the property during the check period from 1.8.1991 to 14.6.2006, there is no scope for considering his savings from the salary income from the date of joining the service till the commencement of 144 144 Spl.C.C.No.232/2009 check period as his income. The aforesaid submission is also not technically sound because in the event the aforesaid amount is considered as the asset/savings at the commencement of the check period, the acquisition of assets and expenditure from the date of joining the service till the commencement of the check period are also requires to be considered in order to ascertain the disproportionate assets. Therefore, the submission of the accused to consider Rs.2,65,248/- as the opening balance saving/income from 1977 to 1.8.1991 at the beginning of the check period deserves to be rejected and accordingly rejected.
58.1. The accused No.1 has contended that in the year 2004 the accused No.2 was working as the consultant in M/s. R.C. Graphics and her monthly salary was Rs.12,500/- and she had worked in the said firm for 20 months. Dw.42 in her evidence (para No.7) has deposed that she had worked as the consultant with P.w.17 in M/s R.C. Graphics and she was drawing salary of Rs.12,500/- per month in all received Rs.2,50,000/-. As per her evidence P.w.17 was paying the salary through 145 145 Spl.C.C.No.232/2009 cheque and also by depositing the amount to her bank account.
58.2. During cross-examination Dw.42 (in para No.42) has admitted that she was working with M/s RC Graphics for three days in a week. She has shown ignorance regarding the fact that the IO has considered Rs.25,000/- received as salary from the RC Graphics as her income. She has specifically admitted that there is no documentary evidence to show the receipt of Rs.2,50,000/- from the RC Graphics towards her salary.
58.3. D.w.40 in his evidence para-18 has deposed that the accused No.2 was working as the consultant in RC Graphics and in support he has produced Ex.D71 agreement dated 25.7.2004. The accused has failed to produce any documentary evidence to prove for the period of 20 months from the date of execution of Ex.D- 71 agreement, the accused No.2 had regularly receiving Rs.12,500/- per month as her salary from Pw.17. The accused further failed to prove the amount of Rs.50,000/- deposited on 2.9.2005 and Rs.41,000/- on 12.9.2005 to 146 146 Spl.C.C.No.232/2009 the bank account of the accused No.2 was deposited by Pw.17 towards the salary.
58.4. Pw.17 Ms.Chaitra Ramesh was examined on behalf of the prosecution and she is the Proprietor of M/s.R.C. Graphics. In her evidence she has deposed that the accused No.2 was working as the consultant in the said firm on a monthly salary of Rs.12,500/-. The witness has admitted that she had issued two cheques for Rs.12,500/- each and further deposited a sum of Rs.50,000/- and Rs.41,000/- to the bank account and in all paid Rs.2,50,000/- to the accused No.2. Pw-17 has not fully supported the prosecution case and therefore the learned Public Prosecutor has cross-examined the witness. During cross-examination she has deposed that in proof of depositing Rs.50,000/- and Rs.41,000/- she had not collected any documents from the bank. The alleged deposit amount to the bank account of the accused No.2 has been specifically denied by the prosecution.
147147
Spl.C.C.No.232/2009 58.5. In Ex.P35 there are two entries dated 2.9.2005 for Rs.50,000/- and 12.9.2005 for Rs.41,000/-. But from the aforesaid entries it is not possible to draw any inference that within a period of 10 days, Pw.17 has deposited the aforesaid amount of Rs.50,000/- and Rs.41,000/- towards the salary of the accused No.2. There are also no entries in the account extract as to show who had deposited the said amount. It is the onus of the accused No.2 to prove that Pw.17 had deposited the above referred Rs.91,000/- to her bank account towards the payment of the arrears of monthly salary. It appears that the accused are trying to take advantage of the deposit of Rs.91,000/- to the bank account on 2.9.2005 and 12.9.2005 as if it was deposited by Pw.17. The accused No.2 or Pw.17 have not produced any other documents to show the payment of salary from Aug-2004 and October-2005 to March-2006. Pw-17 during her evidence has not produced any documents maintained in her office in connection with the payment of monthly salary to the accused No.2. In the above circumstances, the evidence Pw.17 creates doubt regarding prosecution 148 148 Spl.C.C.No.232/2009 case and alleged deposit of Rs.91,000/- towards the salary of the accused No.2.
58.6. The accused have produced Ex.D71 agreement but the said document ought to have been retained by Pw.17 the employer. How the accused No.2 could able to secure the original agreement has not been explained. Pw.17 being the employer of the accused No.2 ought to have retained the original Ex.D71 agreement. In the above circumstances, the possibility of Ex.D71 agreement has been created for the purpose of the case is more probable. The explanation of the accused regarding seizure of Ex.D-71 agreement at the time of drawing Ex.P9 mahazar and on the next day Pw-1 the IO alleged to have returned the said agreement in favour of the accused No.2 is also improbable and unbelievable. There was no necessity for Pw.1 to refrain from mentioning the details of Ex.D-71 agreement in Ex.P-9 mahazar. The copy of the Ex.P-9 mahazar was furnished to the accused No.1 on 14-3-2006. He had not made any endorsement in the said document regarding the aforesaid contention. Pw.17 being the employer, in 149 149 Spl.C.C.No.232/2009 normal circumstances retains the original agreement. Therefore, custody of Ex.D-71 with the accused No.2 creates serious doubt regarding the genuineness of the said document.
58.7. The accused during cross-examination of Pw.1 in para-41 has suggested to the witness that without sufficient reasons he has not considered Rs.2,50,000/- salary received by the accused No.2 from Pw.17 as her income. The prosecution has produced Ex.P-35 letter received from Punjab National Bank dated 28.12.2017 accompanied with account extract. As per the said document on 12.9.2005 and 18.10.2005 Rs.12,500/- each was transferred to the said account of the accused No.2 from RC Graphics Bengaluru. Pw-17 could have produced their bank account extract to prove payment of salary of Rs.2,50,000/- in favour of the accused No.2. Therefore, the IO has rightly considered the aforesaid amount as the income of the accused No.2 during the check period. Therefore, from the said documentary evidence the Court can infer that the accused No.2 had received Rs.12,500/- per month as her salary for the month of August and 150 150 Spl.C.C.No.232/2009 September-2005. But there is absence of other documentary evidence to show that from August-2004 to March-2006 the accused No.2 was working in M/s RC Graphics as a consultant and totally she had drawn salary of Rs.2,50,000/- for the relevant period and she has failed to prove the said fact. Hence the prayer of the accused to consider Rs.2,50,000/- as the salary income of the accused No.2 received from M/s R.C. Grahpics is rejected.
59.1. The accused No.1 and 2 in their defence have contended that the accused No.2 was giving tuition to the school children studying below 9th standard and during the check period she had earned Rs.3,73,000/- . The grievance of the accused is that even after furnishing the details in the schedule, the IO has failed to consider the aforesaid amount as the income acquired during the check period. Dw-42 in para-6 of her evidence has deposed that in the house of Dw.8 Mr. Achutha she was giving tuition to 15-20 children in Hindi and Social subjects and had earned Rs.3,75,000/-. Dw.40 in para-22 of his evidence has deposed that the accused No.2 by 151 151 Spl.C.C.No.232/2009 giving tuition earned Rs.3,72,000/- and it is declared in her income tax returns and also in his APR. But the accused No.2 has not produced the copy of the income tax returns to show that she had declared her income in her income tax returns for the relevant year.
59.2. In order to prove the aforesaid contention the accused got examined Dw.7 Mr. Abubekar, Dw.8 Mr. Achutha, Dw.10 Mr. Ayub khan, Dw.11 Mr. Saleem @ Gafar Shariff and Dw.18 Mr. Syed Murtuza. Dw-7 in his evidence has deposed that from 1996 to 2006 his daughter was attending the tuition class under the accused No.2 and he was paying Rs.700- 750 per month. During cross-examination the prosecution has established that Dw.7 is the resident of BEL Road and the accused No.2 is the resident of Sanjay Nagar. The daughter of Dw.7 was aged 5 years and in the above circumstances the evidence of Dw.7 as deposed in his examination-in-chief that for a period of 10 years his daughter was taking tuition from the accused No.2 or the alleged payment of Rs.700 - 750 per month as tuition fee is highly improbable and unbelievable. 152 152
Spl.C.C.No.232/2009 59.3. Dw.8 Mr. Achutha is a retired school teacher and he deposed that from 1993 to 2005 in his house situated at Sheshadripuram, Bengaluru, the accused No.2 was giving tuition to the children. He further deposed that the children of accused No.1 and 2 were also attending tuition under him. As per his evidence from 1993 onwards the accused No.2 had started giving tuition to the children in Social Science and Hindi subject and after 2005 they had stopped giving the tuition. During cross-examination, Dw.8 has admitted that till today he is not aware of the educational qualification of the accused No.2. He is residing in 2 BHK house and the accused No.2 was collecting her tuition fee separately from her students and he had only provided his house for the purpose of giving tuition. But the aforesaid evidence elicited during cross-examination of Dw-8 makes his evidence in examination-in-chief unbelievable and unnatural. Dw.8 has admitted that he was residing in a rented house constructed in site measuring 22 x 37 feet. As per the evidence of Dw.8 totally 20 students were attending tuition from him and more than 20 students 153 153 Spl.C.C.No.232/2009 were taking tuition from the accused No.2. Therefore, evidence of Dw.8 that at a time more than 40 students were taking tuition in his 2 BHK house is highly improbable and unbelievable. The admission elicited during cross-examination of Dw.8 shows that the witness has appeared before the Court in order to assist the accused No.2 to claim income from tuition and therefore his evidence in this regard is not trustworthy and cannot be accepted.
59.4. Dw.11 Mr. Saleem @ Gafar Sharfiff in his evidence has deposed that from 1997-2004 he was sending his children for tuition under the accused No.2 and he was paying fee of Rs.600/- per month and in 2004 he was paying Rs.400/450 per each child towards tuition fees. As per the admission of Dw.11 elicited during his cross-examination, he is the resident of Shivaji Nagara and he was daily sending his 3 children for tuition to Sheshadripuram which is at a distance of 4-5 kms. in an auto rickshaw is highly improbable and unbelievable. He is not aware of the educational qualification of the accused No.2 and how many students were attending 154 154 Spl.C.C.No.232/2009 the tuition classes under her. He has specifically admitted that he had not seen the accused No.2 giving tuition to his children and no document is produced in proof of payment of the tuition fees. The contention of Dw.11 that there was no facility for him to send his children for tuition at Shivajinagara is also unbelievable. Therefore, the evidence of Dw.11 that he was sending his children for tuition under the accused No.2 and payment of tuition fee is unbelievable and accordingly the evidence of DW11 in this regard is rejected.
59.5. Dw.10 Mr. Ayubkhan in his evidence has deposed that from 2003 to 2006 he was sending his son for tuition under the accused No.2 and he was paying Rs.500/- per month as tuition fees. As per the evidence, Dw.10 is doing tiles cutting work and he is the resident of RT Nagar Bengaluru which is at a distance of 4 kms. from Sheshadripuram. He has deposed that his wife was going to drop the child for the tuition. As per the evidence of Dw.10 his son was studying in 3 rd standard. Therefore his son was taking tuition under the accused No.2 or she was charging Rs.500/- per month as tuition fees during 2003- 155 155 Spl.C.C.No.232/2009 2006 is highly improbable and unbelievable. Therefore, evidence of Dw.10 also will not come to the assistance of the defence of the accused and accordingly his evidence is not accepted.
59.6. Dw.18 Mr.Syed Murtaza in his evidence has deposed that from Chinnappa garden he was sending his son and daughter for tuition under the accused No.2. He deposed that he was paying Rs.400/- per each child as the tuition fees and thereafter the accused No.2 had demanded Rs.700/- per month as fee. It is the evidence of Dw.18 that in 1997 and 1998 his son and daughter were respectively studying in 1 st standard. During cross- examination Dw-18 has admitted that the distance between Chinnappagarden and Sheshdardripum is 3 kms. and he was sending his children for tuition in an auto rickshaw and his wife was accompanying with the children. The witness has claimed that in pursuance of the information given by Dw.11 he started to send his children for tuition. The evidence of Dw.18 that from 1997 and 1998 onwards till 2005 he was sending his children who were studying in 1st standard for tuition 156 156 Spl.C.C.No.232/2009 under the accused No.2 is unbelievable. Hence the evidence of Dw18 is not helpful to the case of the defence.
59.7. In view of the above referred oral evidence and on its appreciation, the contention of Dw.40 and Dw.42 regarding the claim of the accused No.2 that she had acquired income of Rs.3,73,000/- by conducting tuition classes to the children during the check period is not acceptable. Moreover, the accused No.2 has not produced her income tax documents to claim she had declared the above referred income in her income tax returns. There is no corresponding documentary evidence except the oral evidence in proof of the alleged income of the accused No.2 acquired through tuition fees. It is true, by examining the parents of the students, the defence has placed quantity of evidence. But the prosecution from the cross-examination of those witnesses able to show that their evidence is intrinsically inconsistent, contradicting and unbelievable. The evidence of Dw.7, 8, 10, 11 and 18 do not inspire the confidence of this court to accept their testimony regarding payment of tuition 157 157 Spl.C.C.No.232/2009 fees in favour of the accused No.2. Therefore, the contention of the accused No.2 that she had received income of Rs.3,73,000/- by giving tuition to the children during the check period is not proved and accordingly the said contention is rejected.
60.1. The accused No.2 has claimed that she had received Rs. 6.00 lakhs from M/s.Charan Homes Pvt. Ltd. however the IO has not considered the said amount as the income. Dw.42 has produced Ex.D-64 receipt/endorsement issued by M/s. Charan Homes Pvt. Ltd. for Rs.6 lakhs dated 5.1.2006 to claim the receipt of money from the developer. Dw.42 in para 4 and 8 of her evidence has deposed that she had received Rs.6 lakhs cash from Mr. Sathynaranaya Reddy and after collecting the amount she had paid the said amount in favour of the accused No.3. In her evidence she has admitted that there is no documentary evidence to show the payment of Rs.6 lakhs in favour of the accused No.3. During cross- examination of Dw.42, the prosecution has specifically disputed the alleged receipt and payment of Rs.6 lakhs by the accused No.2 in favour of the accused No.3. 158 158
Spl.C.C.No.232/2009 60.2 It is necessary to mention here that Ex.D-64 document ought to be in the custody of M/s. Charan Homes Pvt. Ltd., the vendor of the flat and not with the accused No.2. Even if it is presumed that the accused No.2 was in possession of the aforesaid original Ex.D-64 endorsement/acknowledgment dated 5.1.2006, the document was not found in the house of the accused at the time of conducting Ex.P-9 house search mahazar. It is not the case of the accused that after the house search, she has secured the said document from M/s Charan Homes Pvt. Ltd. The accused No.2 has not given any explanation and the reason behind as to why it was not found during Ex.P-9 house search mahazar. Therefore, this is one of the strong circumstances to draw an inference that Ex.D-64 receipt has been concocted by the accused after the house search. The payment relating to the said transaction is said to have been made by cash. There is no corresponding document to prove the receipt of aforesaid amount from M/s.Charan Homes Pvt. Ltd. These are also the other reasons which 159 159 Spl.C.C.No.232/2009 create suspicion towards the said document in Ex.D-64. to consider the document with suspicion.
60.3. Dw.40 in his evidence para-6 specifically deposed that since Charan Homes builder could not finish the building construction work on 5.1.2006, he had made refund of Rs.6 lakhs. Therefore it is undisputed fact that the construction of the flat was not completed as on 5-1- 2006. During cross-examination in para-49, the prosecution has specifically disputed receipt of Rs.6 lakhs by the accused and submitted that Ex.D64 has been created for the purpose of the case. Dw.42 in her evidence para-14 specifically deposed that in Jan-2006 she had received Rs.6 lakhs from M/s.Charan Homes.
60.4. The aforesaid amount claimed to have been received on 5.1.2006 but the said amount was not found during the house search mahazar on 14.3.2006. In order to overcome the aforesaid impediment, it appears that the accused No.2 has tried to forward an explanation that she had paid the said amount in favour of the accused No.3. From the seizure and production of 10 160 160 Spl.C.C.No.232/2009 receipts marked as per Ex.P70 (Sl.No. 5 to 14) for Rs.34,50,000/-, as per forgoing findings it is proved and it was considered as the asset value of the accused. But the accused have failed to prove the refund of Rs. 6.00 lakhs as per ExD.64. Hence the contention of the accused regarding the acquisition of income of Rs. 6.00 lakhs under the above said head is rejected.
61.1. The accused have claimed that the advance amount of Rs.36,50,000/- received through the agreement of sale was not considered by the IO as their income. Dw.42 in her evidence has deposed that on 13- 6-2005 she had entered into an agreement of sale as per Ex.D-80 pertaining to site No.48 Gedlahalli village and received Rs.36,50,000/- from the purchaser M/s.Charan Homes Pvt. Ltd. In Ex.D-80 agreement the accused No.2 and 3 are the vendors and they alleged to have executed the agreement by agreeing to sell the property and the total sale consideration is shown as Rs.49,20,000/-. As per the contents of the said agreement from the date of agreement 13.6.2005 to 15.11.2005 on different dates in six installments the accused No.2 and 3 claimed to have 161 161 Spl.C.C.No.232/2009 received the part sale consideration of Rs.36,50,000/- from the purchaser. As per the evidence of Dw-42 out of the above amount received she had paid Rs.34.50 lakhs as the sale consideration to purchase the flat No.402 as per Ex.P-71 agreement of sale (page No. 57 to 80) with M/s.Charan Homes Pvt. Ltd.
61.2. According to the contention of the accused No.2, along with the accused No.3 she had executed Ex.D-80 agreement of sale in favour of M/s. Charan Homes Pvt. Ltd. on 13.6.2005. As per the recitals of the said document, the accused No.2 and 3 being the vendors had agreed to execute the sale deed in favour of the purchaser within one year. As per the evidence of Dw.42 and contents of Ex.D80, the accused No.2 has claimed that she had received total amount of Rs.36,50,000/- (Rs.7,00,000/- on 13-6-2005, Rs.2,50,000/ on 7.7.2005; Rs.4,50,000/- on 13.8.2005; Rs.6 lakhs on 26.8.2005; Rs.8 lakhs on 15.10.2005 and Rs.8,50,000/- on 15.11.2005) towards part sale consideration from the purchaser.
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Spl.C.C.No.232/2009 61.3. The accused has produced Ex.-D80 original agreement of sale and it was marked during the examination of Dw.42. But the said document ought to have been in the custody of the purchaser M/s.Charan Homes Pvt.Ltd. Dw.42 has not explained how she could able to secure the original agreement of sale from the custody of the purchaser M/s Charan Homes Pvt. Ltd. In usual course of sale transactions, the purchaser retains the original agreement of sale but in Ex.D-80 the accused No.2 and 3 are the vendors. This is one of the strong circumstances appearing against the case of the accused to suspect the source of securing the custody of the original document.
61.4. In order to prove the execution of Ex.D-80 the agreement of sale, the accused got examined Dw.15 D.Narayana and Dw.16 K. Ramachandra Reddy. They are claimed to be the signatories to the said document as witnesses. Dw.20 Mr. Chakradhara Reddy was examined and he claimed that he was working as the Deputy General Manager of M/s Charan Homes pvt. Ltd. He has deposed that in connection with the Ex.D-80 163 163 Spl.C.C.No.232/2009 agreement of sale transaction, the Managing Director Mr. K.Sathyanarayana Reddy had paid Rs.36,50,000/- to the accused No.2 and 3 in six installments. He has also deposed that the accused No.2 had purchased the flat in Sanjay Palace apartment in the 4th floor of the building for Rs. 28.50 lakhs and she had paid additional amount of Rs.6 lakhs for interior decoration and marble flooring. But after completion of the construction their Managing Director had repaid Rs.6 lakhs to the accused No.2. As per his evidence, the IO after enquiry has retained the original documents of M/s Charan Homes relating to the transaction with the accused.
61.5 During cross-examination Dw.20 has admitted that the company has not recovered Rs.36,50,000/- from the accused No.2 and 3. He has shown ignorance regarding whether the company had maintained the accounts for payment of Rs.36,50,000/- in favour of the accused No.2 and 3. The company has so far has not initiated any action against the IO for securing and retaining the alleged documents. It is suggested to the witness by the prosecution that they have created Ex.D- 164 164
Spl.C.C.No.232/2009 80 agreement to claim payment of Rs.36,50,000/- in favour of the accused No.2 and 3. The witness further admitted that the aforesaid amount was adjusted towards the flat purchased by the accused No.2 in Sanjay Nagar. In this regard, evidence of Dw.20 is inconsistent and contradicting with the evidence of the Dw.40 and Dw.42. As per the evidence of Dw.20 during 2003-2009 M/s.Charan Homes Pvt.Ltd. the company had constructed and sold nearly 300-400 flats at Bengaluru.
61.6. Dw.42 during her cross-examination in para- 21 has admitted that she had declared the receipt of Rs.36,50,000/- from M/s Charan Homes in her income tax documents/returns. But she has not produced any such documents during the trial. The IO in the final report has stated that the accused No.1 and 2 have either filed the income tax returns or paid the income tax. The accused No.2 and 3 are the purchasers of site N.48 of Gedlehally village as per the registered sale deed 20.10.2003 marked as Ex.P71 (page 156 to 163) for a consideration for Rs.9,81,000/-. However surprisingly as per Ex.D80 on 13.6.2005, within 20 months from the date of 165 165 Spl.C.C.No.232/2009 purchase they have entered into an agreement to sell and Cw-64 had agreed to purchase the said property for a consideration of Rs.49,20,000/- and there is 500% escalation in the agreed sale consideration. This aspect creates serious doubt regarding the genuineness of Ex.D80 agreement of sale. The site property is jointly appearing in the name of the accused No.2 and 3. But during evidence surprisingly Dw.42 has deposed that she had retained the entire sale consideration of Rs.36,50,000/-. The reason behind the accused No.3 had not claimed his share of amount from the purchasers is also not known. During cross-examination in para-21 Dw- 42 has specifically admitted that the accused No.3 had not executed any document in her favour to receive the entire sale consideration of Rs.36,50,000/- from M/s Charan Homes Pvt.Ltd. It is specifically suggested to Dw.42 by the prosecution that Ex.D80 agreement of sale has been created for the purpose of the case.
61.7. The cross-examination of Dw.42 para-22 shows that after receiving the amount from Mr. Sathyanrayana Reddy the accused No.2 did not deposit 166 166 Spl.C.C.No.232/2009 the said amount in her bank account. It is the evidence of the accused No.2 that the advance consideration amount received was spent to purchase the flat in Sanjay Palace, Sanjay Nagar from the very same purchaser in Ex.D-80 agreement of sale M/s.Charan Homes pvt. Ltd. Dw.40 in his evidence para-5 has deposed that the accused No.2 and 3 had entered into Ex.D80 agreement with M/s. Charan Homes Pvt. Ltd. for Rs.49.20 lakhs and they received Rs.36.50 lakhs in six installments. As per Ex.D-80 on the following dates the accused No.2 and 3 claimed have received Rs.36.50 lakhs.
1 13.6.2005 Rs.7,00,000/-
2 7.7.2005 Rs.2,50,000/-
3 13.8.2005 Rs.4,50,000/-
4 26.8.2005 Rs.6,00,000/-
5 15.10.2005 Rs.8,00,000/-
6 15.11.2005 Rs.8,50,000/-
Total: Rs.36,50,000/-
61.8. As per Ex.P-70 receipts (Sl. No. 5 to 14), the accused No.2 had paid Rs.34.50 lakhs in favour of M/s.Charan Homes pvt. Ltd. on different dates as follows: 167 167
Spl.C.C.No.232/2009 1 20.7.2005 Rs.8,50,000/-
2 26.7.2005 Rs.6,00,000/-
3 Rs.3,00,000/-
4 Rs.3,00,000/-
5 20.8.2005 Rs.3,00,000/-
6 17.08.2005 Rs.1,00,000/-
7 22-08-2005 Rs. 2,50,000/-
8 14-09-2005 Rs.1,50,000/-
9 30-11-2005 Rs.1,00,000/-
10 03.12.2005 Rs.5,00,000/-
Total Rs. 34,50,000/-
In the above circumstances there was no necessity for making mutual payment by the accused No.2 in favour of M/s.Charan Homes pvt. Ltd. to purchase the flat in Sanjay Palace and in turn the company making the payment in favour of the accused No.2 to purchase the site No.48 situated at Gedlahally, Bengaluru. Ex.P-71(b) sale and construction agreement was entered between the parties on 20-7-2005, but it is important to note that in the recitals of the said agreement there is absolutely no whisper regarding Ex. D-80 earlier agreement dated 13-
06-2005 entered in between the same parties. 168 168
Spl.C.C.No.232/2009 61.9 The accused has produced Ex.C-2 and Ex.D-65 copy of income tax returns documents submitted by M/s.Charan Homes Pvt.Ltd. It is the evidence of Dw.40 that on account of the Karnataka Lokayukta police have conducted raid on his house, Ex.D-80 sale transaction was not completed and could not execute the registered sale deed in favour of the purchaser. Dw.40 in para-99 of his evidence has deposed that during the house search, Pw.1 the IO has seized all the documents including Ex.D- 80 original agreement of sale, lease deed, Ex.D71 agreement entered with RC graphics and on the next day he had returned those documents without making any reference in Ex.P-9 house search mahazar.
61.10. The aforesaid explanation of the accused is not probable and acceptable. Ex.P-9 document contains 14 pages and it was drawn on 14.3.2006 from 8 am to 3.30 pm. PW1 the IO has also furnished the copy of the said mahazar to the accused No.1 and he had received the copy by affixing his signature as per Ex.P9(b). The accused No.1 being the police inspector is aware of the procedures to be followed during house search and he 169 169 Spl.C.C.No.232/2009 could have raised the objection with the IO or made an endorsement in Ex.P9 mahazar that Pw-1 has not shown all the documents seized during the house search in the mahazar. Therefore, the evidence of Dw.40 that Pw.1 had seized the documents including Ex.D80 and Ex.D71 without making reference in Ex.P9 mahazar is prima-facie false and unbelievable. In order to explain how Ex.D-80 the original document was produced by the accused during the trial, they appear to have created the false story by making allegation against the IO. In the event Ex.D71 and Ex.D80 the original documents were with the accused as on the date of Ex.P-9 house search mahazar, definitely the IO could have seized those documents. Therefore, the explanation of the accused as deposed in his evidence is apparently false and not acceptable.
61.11. During cross-examination of Pw.1, in para- 55 it is suggested that he has not deliberately submitted the income tax returns of the accused No.2 along with the charge sheet. It is the contention of Dw.40 that at the time of house search Pw.1 has sized the copy of income tax returns belonged to her and on the next day 170 170 Spl.C.C.No.232/2009 Pw-1 has returned few documents but retained the income tax documents. During evidence Dw.40 in para- 99 has deposed that Pw.1 had instructed him to submit Ex.D-80 the agreement of sale entered with M/s Charan Homes Pvt. Ltd. and Ex.D71 agreement along with the schedule. In the event the aforesaid contention is true, the accused No.2 could have secured copy of required documents from the Income Tax Department to prove she had paid the income tax. It is the onus of the accused to prove payment of income tax. Therefore the explanation offered by the accused No.1 and 2 during their evidence is not worthy of acceptance.
61.12. In order to prove the execution of Ex.D-80 agreement of sale transaction, the accused has examined Dw-15 D.Narayana, the signatory to the said document as witness No.1. In his evidence he deposed that Mr. Sathyanarayana Reddy entered into the said agreement with the accused No.2 and 3 to purchase the site property for a consideration of Rs.49 lakhs and the purchaser had paid the total advance sale consideration Rs.36.50 lakhs in favour of the accused No.2 and 3. 171 171
Spl.C.C.No.232/2009 During cross-examination of Dw.15 it is contended by the prosecution that the alleged GPA and agreement of sale said to have been executed as per Ex.D80 are created documents.
61.13. Dw.16 Mr. K.Ramachandra Reddy was examined on behalf of the accused and in his evidence he deposed that he was working as the Supervisor in M/s Charan Homes Pvt. Ltd. and he is the signatory to Ex.D- 80 agreement of sale as witness. As per his evidence on the date of agreement of sale Mr. Sathyanarayana Reddy had paid Rs.7.00 lakhs in favour of the accused No.2 through cash and the total sale consideration was Rs.49 lakhs. During cross-examination of Dw.16 it is contended by the prosecution that the said agreement has been created. The witness has admitted that he was present in connection with 2-3 transactions and on all the subsequent dates when the payments were made in installments, he was not present. But Ex.D-80 document shows that when the accused No.2 claims to have received the part sale consideration from the purchaser on all the dates Dw.16 was present and he had affixed his 172 172 Spl.C.C.No.232/2009 signature as a witness to those entries regarding the payments.
61.14 Dw.20 Mr. Chakradara Reddy was examined on behalf of the defence and he deposed that he was working as the Deputy General Manager in Charan Homes Pvt.Ltd. As per his evidence, Mr.Sathyanarayana Reddy is the Managing Director of the company and in the year 2009-10 the company suffered loss in its business and thereafter whereabouts of the Managing Director is not known. He further deposed regrading payment of Rs.36.50 lakhs in favour of the accused No.2 in installments. It is the evidence of Dw.20 that on 8.1.2009 the police had secured the income tax returns, receipts, ledger for the years 2004-08 of the company and retained the original documents and returned the Photostat copy. He has deposed that Ex.C-2 is the copy of the income tax documents of the company.
61.15. During cross-examination of Dw.20 the witness has admitted that they have also produced the bank accounts statement of the company before the IO. It 173 173 Spl.C.C.No.232/2009 is pertinent to mention that for all these years either Dw.20 as the Manager or any other authorised persons have not initiated any legal action against P.w.1 for illegally retaining the relevant documents of the company. Therefore, the evidence of Dw.20 that Pw.1 has retained the documents of the company as deposed in the examination-in-chief is apparently false. In order to prove the payment of Rs.36.50 lakhs in favour of the accused No.2 in connection with Ex.D-80 agreement of sale, they could have produced the bank account statement of the company. The entire amount was paid through cash is unbelievable.
61.16. The other point to be considered is that even after entering of Ex.D80 agreement of sale for more than 17 years has been lapsed, the accused No.2 has not executed the registered sale deed in favour of the purchaser. The evidence on record shows that the said property presently is in the possession of the accused No.2 M/s.Charan Home Pvt.Ltd. has also not initiated any legal action against the accused No.2 and 3 for the specific performance of the contract or for the 174 174 Spl.C.C.No.232/2009 recovery of Rs.36.50 lakhs advance amount paid towards the sale consideration. In this regard it is also relevant to mention that the accused No.2 has also not got executed the registered sale deed in respect of Flat No.401 Sanjay Palace, Sanjay Nagar, Bengaluru from M/s.Charan Home Pvt.Ltd. even though the agreement was entered on 20.7.2005 as per Ex.P71 (page No.57 to
80).
61.17. The accused in order to prove the receipt of Rs.36.50 lakhs cash from M/s Charan Homes Pvt.Ltd. has examined Dw.41 Mr.S. Sundara Raghavan, the Assistant Commissioner, Department of Income tax, Tirupati. The accused has produced Ex.D65 (page No.8 to 95) balance sheet, profit and loss account for the year 2004-05 to 2006-07 of M/s Charan Homes Pvt. Ltd. D.w.41 has admitted that he had issued Ex.D-65 certified copy of the documents in favour of the accused. As per his evidence and as per the documents from 1.4.2005 to 31.3.2006 the accused No.2 had received an amount of Rs.36.50 lakhs from M/s Charan Homes Pvt.Ltd.
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Spl.C.C.No.232/2009 61.18. The aforesaid witness D.w.41 has also produced Ex.C-1 the original income tax returns submitted by M/s Charan Homes Pvt.Ltd. for the year 2005-06. During cross-examination, he has admitted that he had issued Ex.D65 copy of the documents without comparing it with the original. The witness further admitted that except Ex.C1 income tax returns submitted by M/s Charan Homes Pvt.Ltd., the remaining original documents of returns submitted by the company for the year 2005-06 and 2006-07 is not available in their office. Hence, Ex.D65 document cannot be accepted as duly authenticated copy of the original documents. In the result Ex.D-65 cannot be considered as certified copy and it is inadmissible. Therefore Ex.D-65 is not considered for appreciating the defence of the accused.
61.19. As per the judgment referred supra relied by the accused in Kandanlal case the Hon'ble Supreme Court held that the known sources of income means income must be received from lawful source and the receipt of such income must have been intimated in 176 176 Spl.C.C.No.232/2009 accordance with the provisions of law, rules or orders applicable to the public servant. In the case on hand, the accused No.1 and 2 have not declared their income to the Income Tax Department or the accused No.1 has reported the acquisition of income to his department as per the service rules. Therefore even if it is presumed that as per Ex.D-2 the account of M/s Charan Homes company has been audited or they have declared the advancement of Rs. 36.50 lakhs in favour of the accused No.2, it is not sufficient for the accused No.2 to claim Rs. 36.50 lakhs as her lawful income unless she had paid income tax or declared in her income tax returns. It is no doubt income of Rs.36.50 lakhs was taxable under the Income Tax Act. The accused No.2 could have produced the documents after raid i.e. 14-3-2006 regarding payment of income tax for the financial year 2005.06.
61.20. In Monahlal Soni case referred by the accused the question before the court was regarding withholding the income tax documents by the IO made available during investigation. In the said circumstance the Hon'ble court directed the prosecution to produce 177 177 Spl.C.C.No.232/2009 those documents. In the case on hand, even though the accused have alleged that the IO has retained the income tax documents but except the aforesaid contention, those allegations made against the IO prima-facie appears to be false and hence the ratio of the judgment referred is not applicable to the facts of the case.
61.21. In the judgment of the Apex Court in K.Inbasagaran case the prosecution has discharged its initial burden by proving recovery of unaccounted money and other assets. The accused was able to satisfactorily establish the assets belongs to his wife from her business and has explained the possession of the unaccounted money and the said income was proved. But in the case on hand, accused No. 2 has failed to prove her income or she had declared the income to the Income Tax Department. Hence the ratio of the said judgment is also not applicable to the facts of the case.
61.22. In view of production of Ex.C1 the original income tax returns it is admissible in evidence and the said document could be accepted. During cross- 178 178
Spl.C.C.No.232/2009 examination of Dw.-41 it is elicited that there is discrepancy regarding the details as shown in Ex.C1 original document and advance payment receipt as per Ex.C-2. As per Ex.C-2 copy of the cash voucher is available only for Rs.29.50 lakhs and not Rs.34.50 lakhs. The entries appearing in Ex.D-65 (page No.31 to 65) are not inconsonance with Ex.C1 original document. Therefore Ex.D-65 document produced by the accused issued by Dw-41 is not the certified copy of the original and it was not issued by comparing with the original as provided under Section 63 of the Evidence Act. Hence the said document is inadmissible in evidence. Ex.C1 and C2 documents are produced by Dw.41 from proper custody and he is the competent person and custodian of the documents. But those documents are not helpful to the defence of the accused. Ex.C-1and 2 documents relates to the payments made by the accused No.2 and 3 in favour of M/s Charan Homes and the said transaction is duly proved. But by excluding Ex.D-65 document as it is inadmissible, the accused has failed to prove the receipt of Rs.36.50 lakhs from M/s Charan Homes pvt. 179 179
Spl.C.C.No.232/2009 Ltd. There is every reason to believe that in order to enhance the income, the accused No.2 has created Ex.D-80 agreement in collusion with M/s. Charan Homes Pvt. Ltd. after registration of the case. In the result the defence of the accused No.2 that she had received Rs.36.50 lakhs is not proved.
62.1. The accused No.1 in his evidence has claimed that during the check period he had acquired income of Rs.3,08,422/- from the sale of shares. The IO has considered that the purchase of shares and Rs.1,31,868/- amount spent towards the said transaction as the expenses during the check period. The accused No.1 has admitted the purchase of the shares in his schedule.
62.2 Dw.5 - Mr. Kabir Syed Abdul was examined on behalf of the accused and in his evidence he deposed that he had sold the shares of the accused No.1 and paid him Rs.3,08,422/- by cash. During cross-examination it is elicited that there is no documentary evidence with him regarding the sale of shares belonged to the accused No.1. He further admitted that there is also no 180 180 Spl.C.C.No.232/2009 documentary evidence regarding the payment of Rs.3,08,422/- sale consideration in favour of the accused No.1 after the sale of shares.
62.3. Dw.40 in his evidence para-12 has deposed that on 20.12.2005 he had transferred shares of eight different companies to the demat account of Dw.5. He further deposed that Dw.5 had sold those shares for Rs.3,24,044/- and the amount was paid to him by cash but the IO has not considered the aforesaid amount as income. During cross-examination of Dw.40 in para-21, the prosecution has specifically denied the aforesaid sale transaction of the share between the accused No.1 and Dw.5 and the alleged acquisition of the income. Dw.40 in para-20 of his deposition has admitted that the sale consideration of sold shares was credited to the account of Dw.5.
62.4. The IO during investigation has collected the documents from Canara Bank, JC Road Branch, Bengaluru relating to the transaction statement of demat account. The documents are available in book No.1 page 99 to 181 181 Spl.C.C.No.232/2009
102. The IO in his final report has considered on 20.12.2005 the shares were transferred from the accused No.1 to the account of Dw.5 Kabir Syed Abdul. In the schedule 15B, the accused has claimed that in 2005-06 he had sold those shares for Rs.2,72,422/-. According to the IO, Dw.5 has failed to furnish the payment details of amount in favour of the accused No.1. It is true, Dw.5 when he was examined he has not produced the demat account transaction statement to show the actual amount he had received by sale of the shares belonged to the accused No.1. However on considering the documents collected during the check period the accused has proved the transfer of the shares in favour of Dw.5. But he has failed to prove the acquisition of income of Rs. 3,08,422/-. The amount claimed by the accused in his schedule and the documents are contradicting. The reason behind withholding the document by Dw-5 is that if it is produced it may go against his evidence. Hence prayer of the accused to consider Rs.3,08,422/- as income received from Dw-5 by sale of shares is rejected. 182 182
Spl.C.C.No.232/2009 63.1. The accused has claimed that he had borrowed loan of Rs.5 lakhs from Mr. Syed Abdul Kabir and the said loan amount was deposited to Ex.P-40 Canara Bank, Town Branch, joint account appearing in his name and in the name of the accused No. 2. Dw.5 in his evidence has deposed that he had advanced Rs.5 lakhs loan to the accused No.2 to purchase the flat. In order to prove the above referred transaction, the accused has relied upon Ex.P40 bank account extract. As per the said document there are two entires on 13.1.2005 regarding deposit of Rs.2,50,000/- and on 2.2.2005 of R.1,50,000/-. As per the entry dated 29.4.2005 a sum of Rs.99,450/- was deposited to the account.
63.2. Ex.D92 is the passbook produced by the accused and it is appearing in the name of Dw.5. There are two corresponding entry appearing in consonance with Ex.P-40 bank account extract for Rs. 2,50,000/- and Rs.1,50,000/- marked as Ex.D-92(a) and (b). In order to claim the payment of Rs.99,450/- to M/s. Escrow belongs to the accused, they have not produced any documents. 183 183
Spl.C.C.No.232/2009 In the pass book there is no entry regarding transfer of Rs.99,450/- in favour of the accused.
63.3. The IO in the final report has stated that the accused has also given money several times to Dw.5 Mr. Syed Abdul Kabir and therefore, the entries appearing in Ex.D-92 and Ex.P40 are stage managed transactions. But on perusal of Ex.D-92 pass book and Ex.P-40 bank account extract there is no such transactions corresponding with the amount claimed by the accused as borrowed from Mr. Syed Abdul Kabir. Moreover, there was share transaction between the accused and Dw.5 is proved from the evidence.
63.4. During cross-examination, Dw.5 has admitted that he had advanced loan in favour of the accused but till the date of his deposing evidence in the month of October-2017, the accused has not repaid the said amount. He has not initiated any legal action against the accused for the recovery of the alleged loan amount. Therefore the said amount was transferred through the bank account relating to the sale of share transaction 184 184 Spl.C.C.No.232/2009 also cannot be totally ruled out. But from Ex.P40 and Ex.D92 documents and from the evidence of Dw.5 and Dw.40, it is proved that during the check period the accused No. 1 had received Rs.4,00,000/- to his bank account from Dw.5. Therefore, the aforesaid amount of Rs.4,00,000/- is considered as the income of the accused during the check period.
64.1 The accused has claimed that his son Mr. Zia Ur Rehman was working as the Gym Instructor in Affinity International Body Science Redefined and had earned Rs.1,78,200/- during the check period from the year 2004 to Feb-2006. The accused has furnished the details of earning of his son in Ex.P53 schedule. The prosecution has examined Pw.12 Mr.Suresh Gopi, but he has turned hostile and and he was cross-examined by the learned Public Prosecutor. Pw-12 has deposed that he had obtained the service of Mr. Zia Ur Rehman as gym instructor and he was paying Rs.2,500/- per month from October2004 up to Dec-2006. The accused has produced Ex.D-69 document to claim the income of his son during the aforesaid period was Rs.42,500/-.
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Spl.C.C.No.232/2009 64.2. P.W.15 examined on behalf of the prosecution Mr.Zavid M.K. Rehman has also not supported the prosecution case and he has been cross-examined by the Public Prosecutor. In his evidence he has deposed that he had obtained the service of the son of the accused Mr. Zia Ur Rehman as the gym Instructor and was paying the sum of Rs.2,300/- per month from Dec-2004 to Feb- 2006. The accused has produced Ex.D68 certificate to prove receipt of Rs.2,300/- fee.
64.3. Pw.16 Mr. Arif Sheikh was examined and deposed that he was working as the Manager in Affinity International Body Redefined Gym Centre. As per his evidence son of the accused Mr. Zia Ur Rehman was appointed as the gym instructor and they were paying him Rs.4,500/- per month. The accused has produced Ex.D-70 certificate to prove the income of his son.
64.4. The accused by producing Ex.D-68 to 70 documentary evidence and from the oral evidence of Pws.12, 15 and 16 claims Rs.1,78,200/- as the income of their son during the check period. It is pertinent to 186 186 Spl.C.C.No.232/2009 mention here that the accused have not chosen to examine their son Mr. Zia-Ur-Rehaman as the witness for the reasons best known to them. He is the best witness to depose regarding his income but has failed to enter into the witness box. He is also the competent person to depose regarding his expertise as the gym instructor. Moreover, the educational documents produced by the prosecution and from the undisputed facts of the case show in the year 2004-06 their son Mr. Zia Ur Rehman was a B.E. student in M.S.Ramaiah college, Bengaluru. Therefore, in order to ascertain whether the son of the accused was a qualified gym trainer can be ascertained only by adducing his evidence. The prosecution has been deprived of an opportunity to cross-examine the witness regarding his income said to have been acquired during the check period. The IO in the final report has also stated that the son of the accused was not a qualified trainer/gym instructor. Therefore, the accused have failed to place best piece of evidence before this Court by withholding examination of their son Mr. Zia Ur Rehman. In the above circumstances oral evidence of Pw.12, 15 an 187 187 Spl.C.C.No.232/2009 16 Dw.40 and Ex.D68 to 70 documents are not sufficient to prove the income of Mr. Zia Ur Rehaman. Hence, the accused have failed to prove that their son Mr. Zia Ur Rehman earned Rs.1,78,200/- as the gym instructor during the check period.
65.1. The accused No.2 has claimed that she had borrowed loan of Rs.2,50,000/- from Dw.7 Mr. Abubakar at the time of purchase of the property as per Ex.P-27 sale deed. Dw.7 in his evidence has deposed that in 2003 he had advanced loan of Rs.2,50,000/- in favour of the accused No.2 and in 2007 she had repaid the said amount. During cross-examination, Dw.7 has admitted that there is no documentary evidence to prove the aforesaid loan transaction. The accused No.1 in his evidence has contended that borrowing of loan has been declared in Ex.D84 APR.
65.2. Dw.42 also in her evidence has deposed that she had borrowed Rs.2,50,000/- from Mr. Abubakar. But in the absence of any documentary evidence the interested testimony of Dw.40 and 42 cannot be 188 188 Spl.C.C.No.232/2009 accepted. The accused have failed to produce any corresponding document to prove the said loan transaction. Ex.D-84 APR document cannot be relied upon for the reasons already stated and it has been manipulated after registration of the case is proved. Therefore, from the evidence of Dw.7 it cannot be accepted that the accused No.1and 2 proved that the accused No.2 had borrowed Rs.2,50,000/- loan from Dw-7.
66. The accused No.2 has contended that during the check period she had borrowed loan of Rs.1,50,000/- from Dw.8 Mr. Achutha in 3 installments of Rs.50,000/- each in the month of January, August and November- 2005. As per the evidence of Dw.8 he was a school teacher and in the year 2005 he retired from the service. At that time he had received retirement benefits of Rs.5 lakhs. The witness has specifically admitted that there is no documentary evidence to prove the alleged advancement of loan in favour of the accused No.2 or proof regarding repayment of the said amount. The oral evidence of Dw.8 and Dw.42 itself is not sufficient to 189 189 Spl.C.C.No.232/2009 arrive to the conclusion regarding the alleged advancement of loan of Rs.1,50,000/-. Hence, this Court can arrive to the definite conclusion that the accused No.2 has failed to prove that she had borrowed Rs.1,50,000/- from Dw.8.
67.1. The accused No.2 has submitted that she had borrowed loan of Rs.4 lakhs from her distant relative Mr. Basith Khan. In support of the aforesaid contention she got examined Dw.23 Mr. Basith Khan and in his evidence he deposed that in the year 2004 he had advanced Rs.3 lakhs and in the year 2005 advanced Rs.1 lakh amount in favour of the accused No.2. As per his evidence in the year 2007, she had repaid the said amount. As per the evidence of Dw.23 after repayment of the loan amount he has destroyed the loan documents.
67.2. The evidence of Dw.23 shows that he is doing dairy farming. As per the admission elicited during his cross-examination, he had arranged money for advancing the loan by borrowing from his wife and son. He is not 190 190 Spl.C.C.No.232/2009 aware how his wife and son had arranged the said amount. The wife of Dw.23 is a housewife. Moreover, Dw.42 being the borrower in her evidence has not whispered regarding the aforesaid loan transaction with Mr. Basith Khan. Dw-23 has not even produced his bank pass book to show his financial capacity to advance the loan. Therefore, the evidence of Dw.23 that he had advanced Rs.4 lakhs hand loan in favour of the accused No.2 as deposed in his evidence does not inspire the confidence of the court to accept his testimony without the support of the documentary evidence. Hence, the accused No.2 has failed to prove that she had borrowed Rs.4 lakh from Dw.23.
68. The accused No.1 has contended that he had borrowed loan of Rs.85,000/- from Dw.11 Mr. Gafar Shariff. Dw.40 in his evidence para-37 has deposed that in 2005 he had borrowed Rs.85,000/- from Mr. Gafar Shariff and had repaid the said amount after 2 years. Dw.11 Mr. Gafar Shariff in his evidence has deposed that in 2005 he had advanced Rs.85,000/- to the accused No.1. But during cross-examination Dw.11 has stated 191 191 Spl.C.C.No.232/2009 that the accused No.1 has borrowed the loan in installments. There is inconsistency and contradiction regarding the date of loan and mode of advancing the amount in between the evidence of Dw.11 and 40. Both Dw.11 and 40 have not produced any documentary evidence to prove the alleged loan transaction. Dw-11 could have produced his bank pass book to show his financial capacity to advance the loan. In the above circumstances, it is not safe to rely only upon the oral evidence of the witnesses in the absence of any other documentary evidence in support of their contention. Therefore, this Court can hold that the accused No.1 has failed to prove that he had borrowed Rs.85,000/- hand loan from Dw.11 - Gafar Shariff.
69.1. The accused have contended that the accused No.2 and the deceased accused No.3 had borrowed loan of Rs.25 lakhs from the Gandhinagar Credit Co-operative Society by creating mortgage of immovable property. Dw.42 in para-8 of her evidence has deposed that herself and the accused No.3 by offering the immovable property standing in the name of 192 192 Spl.C.C.No.232/2009 Mohammad Qureshi as security they had borrowed loan of Rs.25 lakhs. Dw.40 in para-48 of his evidence has deposed regarding borrowing loan of Rs.25 lakhs by the accused No.2 and 3.
69.2. The accused in order to prove their defence got examined Dw38 Mr.Ramesh the Chairman of the above referred Co-operative Society and in his evidence he deposed regarding sanction of Rs.25 lakhs mortgage loan on 20.2.2004 in favour of the accused No.2 and 3. The accused have produced Ex.D59 to 61 the loan documents, Ex.C-3 is the loan account extract and Ex.C4 is the copy of the legal opinion. During cross-examination of Dw.38 the prosecution has not disputed Ex.D59 to 61 and Ex.C3 and C4 documents. Ex.C-3 clearly shows that the date of sanction of loan and repayment of the interest during the check period. This Court while considering under the head of expenses already included Rs.1,72,000/- as the interest paid by the accused to the Society. The prosecution has failed to disprove the documentary and oral evidence produced by Dw-38. During the house search mahazar the IO did not secure 193 193 Spl.C.C.No.232/2009 any documents regarding this loan transaction. The accused No.1 and 2 have proved that the accused No.2 and 3 have borrowed loan of Rs.25 lakhs on 24.2.2004. Hence, it is just and proper to consider Rs.25 lakhs loan borrowed by the accused No.2 and accused No.3 from the Gandhinagar Co-Operative Society as the income of the accused No.1 during the check period.
70.1. The accused No.1 in his evidence para-37 has claimed that in the year 2005 he had borrowed loan of Rs.50,000/- from Mr. Mikel D'Souza and after three years he had repaid the said amount. Dw.3 Mr. Mikel D'souza was examined on behalf the accused and he deposed that in the month of January 2006 he had advanced Rs.50,000 loan to the accused and after 3 years the accused had made repayment in installments.
70.2. The accused No.2 has claimed that she had borrowed loan of Rs. 80,000/- from Syed Murthuza. Dw.18 Mr. Syed Murtuza in his evidence has deposed that in the month of July-2005 twice he had advanced Rs.40,000/- each in favour of the accused No.2 in order 194 194 Spl.C.C.No.232/2009 to make payment of college fees. But Dw.42 in her evidence has not whispered regarding borrowing of loan of Rs.80,000/- from Dw.18. During cross-examination of Dw.18 the prosecution has disputed the aforesaid loan transaction. Dw.18 has not produced any documents in proof of the alleged advance of Rs,80,000/- loan. 70.3. Dw.40 in para-37 of his evidence has deposed that in the year 1991 he had borrowed hand loan of Rs.25,000/- from Mr. Maqbool Ahmed. The prosecution during cross-examination of the said witness in para-64 has specifically disputed the loan transaction. The accused no.1 has admitted that there is no documentary evidence to prove the said loan transaction. 70.4. Dw.29 Mr. S.Maqbool Ahmend in his evidence has deposed that in the year 1991 he had advanced Rs.25,000/- in favour of the accused No.1 for the purpose of purchasing the landed property. As per his evidence till May-2018 the accused No.1 has not repaid the said amount. Dw.29 or the accused No.1 have not produced any documentary evidence in proof of the alleged loan 195 195 Spl.C.C.No.232/2009 transaction. Moreover, even though as contended the amount was advanced in the year 1991, it was not repaid till 2018 cast serious doubt regarding the truthfulness of the said transaction. It appears only for the purpose of claiming the legitimate source of income the accused No.1 and 2 have claimed that they have borrowed loan of Rs.50,000/- from Mr. Mikel D'Souza and Rs.80,000/- from Syed Murtuza and Rs.25,000/- from Maqbool Ahmed. The only interested testimony of Dw.40 and 42 and other creditors itself is not sufficient to arrive to the conclusion regarding advancement of the loan in the absence of any documentary evidence. Therefore, from the aforesaid evidence the accused No.1 and 2 have failed to prove that they had borrowed Rs.50,000 from Mikel D'Souza, Rs.80,000 from Syed Murtuza and Rs.25,000/- from Maqbool Ahamed. Accordingly the contention of the accused regarding the aforesaid hand loan transactions are not proved and answered accordingly.
71. The accused No.2 has claimed that she had borrowed loan of Rs. 2,50,000/- from her father-in-law, the deceased accused No.3. The accused has produced 196 196 Spl.C.C.No.232/2009 Ex.D77(a) Syndicate Bank account extract and the said account was appearing in the name of the deceased accused No.3 Mr. Sheikh Bale Saheb. As per the said document, on 16.12.2003 through Cheque No.143771 Rs.2,50,000/- was paid to the accused No.2. In Ex.P40 joint account appearing in the name of the accused No.1 and 2 there is corresponding entry dated 16.12.2003 that a sum of Rs.2,50,000/- came to be deposited to the said account. Hence, the aforesaid amount is considered as the income of the accused No.2 during the check period.
72. Dw.40 in his evidence has contended that on 2.1.1997 Rs.10,608/- received from KGID came to be credited to his bank account but the IO inadvertently has not considered the said amount as the income. In Ex.P- 40 there is no entry dated 2.1.1997 as deposed by the accused in para-92 of his evidence. But in Ex.P-40 as per entry dated 23.10.1997 there is deposit of Rs.10,608/- through cheque. Hence, the aforesaid amount is considered as the legitimate income of the accused. 197 197
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73. The accused No.2 has claimed that he had borrowed loan of Rs.35,000/- from Dw.28 Ms. Nilofer but the IO has not considered the amount as the income. Dw.40 in his evidence has deposed that Dw.28 had advanced Rs.35,000/- loan in favour of the accused No.2 through cheque. During examination of Dw.28 Ex.D19 to 23 bank pass books were produced and marked. But Dw- 28 in her oral evidence has not whispered regarding the advancement of Rs.35,000/- loan in favour of the accused No.2. However, in Ex.D20 pass book there is an entry dated 01.9.1995 which shows that through cheque No.439 a sum of Rs.35,000/- was credited to Mrs.Sartaz. Hence the said amount can be considered as the income of the accused. Thus the aforesaid amount is considered as income of the accused.
74. The accused has submitted that in the year 2005 he had sold 200 shares of Canara Bank and received income of Rs.45,000/-. The grievance of the accused is that the IO has not considered the said income of Rs.45,000/- as the legitimate income acquired during the check period. During cross-examination Dw.40 in 198 198 Spl.C.C.No.232/2009 para-94 has stated that in the year 2005 he had sold 200 shares in favour of Mr. Kabir and received a sum of Rs.45,000/- by way of cash. Ex.P70 (Sl.No.3 and 4) share certificates from the date of search and seizure it is in the custody of the Court. As per Ex.P-70 share certificate, the accused No.1 is still the owner of 1000 shares. Therefore, his evidence that in the year 2005 he had sold 200 shares for Rs.45,000/- is false. (In this regard already given findings in para 62.1 to 62.4. of the judgment.) In support of the said contention the accused No.1 has not produced any documents and hence the aforesaid contention regarding sale of 200 shares deserves to be rejected. Therefore, the accused No.1 has failed to prove acquiring of Rs.45,000/- as income during the check period from the sale of 200 shares of Canara Bank.
75.1. The accused No.1 has submitted that he had sold his Enfield Bullet bearing registration No. MEK 1717 to Dw.39 for a consideration of Rs.80,000/-. The grievance of the accused is that the IO has not considered the said amount as his income. He has 199 199 Spl.C.C.No.232/2009 produced Ex.D-62 authorisation letter, clearance certificate, sale receipt, transfer of insurance, B register extract of the vehicle, Form No. 29 and 30 documents. Dw.39 Mr.Amaresh Patil was examined on behalf of the accused and during his evidence he deposed that he had purchased the aforesaid vehicle/ two wheeler from the accused No.1 in the month of August-2005 for Rs.80,000/-. He further deposed that after purchase he had lost the registration certificate book and hence he could not register the vehicle in his name. During cross- examination of Dw.39 the prosecution has contended that the Ex.D63 documents have been created for the purpose of the case.
75.2. From Ex.D-63 the documents produced by Dw.39, B register extract shows that as on the date of giving evidence on 5.12.2018 still the said vehicle was standing in the name of the accused No.1. After the alleged date of purchase in the year 2005, Dw.39 for all these years had not taken any steps to transfer and register the said vehicle in his name. Dw.39 has deposed that from the date of purchase the vehicle was in his 200 200 Spl.C.C.No.232/2009 possession. But at the time of drawing Ex.P-9 house search mahazar, the vehicle was found in the residential premises of the accused No.1 on 14.3.2006. There is no satisfactory explanation in the evidence of Dw-39 and 40 in this regard. Therefore, since the aforesaid movable property was found in the possession of the accused No.1, and who is still the registered owner of the said vehicle, the IO ought to have considered it as the asset of the accused No.1.
75.3. The IO has also not considered the fuel and maintenance expenses of the said vehicle under the head of expenses for the reason that the exact mileage during the check period was not available. He has either considered the said vehicle as the asset of the accused No.1 or considered the fuel and maintenance expenses during the check period. This part of investigation of Pw- 1 is defective. But in the absence of considering the said property as the asset of the accused No.1, it is not possible to consider the fuel and maintenance incurred as the expenses during the check period in the absence of sufficient documentary evidence. The evidence Dw.39 201 201 Spl.C.C.No.232/2009 that he had purchased the vehicle from accused No.1 for Rs.80,000/- is suspicious. Hence, the accused No.1 has failed to prove he had received Rs.80,000/- from Dw.39 at the time of selling Enfield Bullet reg. No. MEK 1717. For the aforesaid reasons Rs.80,000 is not considered as income of the accused.
76.1. The accused No.1 has contended that during the check period the accused No.2 has received Rs.9 lakhs by way of rent from the tenants and the IO has not considered the said amount as his income. Pw.13 Mr. Rajesh Madan and Pw-14 Mr. Madan Nagpal were examined by the prosecution and in their evidence they have deposed that about 15 years ago they had obtained the site belongs to the father of the accused No.2 by paying Rs.1,50,000/- as advance. They were paying Rs.5.000/- -6,000/-as monthly rent by executing the rent agreement in favour of Mr. Sartaz, the accused No.2. Both the witness were treated as hostile by the prosecution and cross-examined by the Public Prosecutor. During cross-examination it is suggested to the witness 202 202 Spl.C.C.No.232/2009 that they were not the tenants under the accused No.2 but in order to assist her they have falsely executed the lease deed in her favour. Pw-13 and 14 have identified their signature appearing in Ex.P53(page-39) copy of the lease agreement. Ex.D-66(c) is the original lease agreement produced by the accused.
76.2. Dw.40 in his evidence in para-14 has deposed that during 1995 to 2003 he had let out the shed constructed at Kodigehally by virtue of Ex.D66 lease agreement in favour of Mr. Mallappa for a sum of Rs.41,050/-. As per his evidence, he had let out one shed in favour of Mr. T.Nagesh for a period for 5 years on lease agreement for Rs.3 lakhs, another shed in favour of Mr. C.H. Satish for a period of five years for lease amount of Rs.3 lakhs and another shed in favour of Mr. Rajesh Madan and Madan Nagpal for a period 5 years for lease amount of Rs. 3.00 lakhs and received total amount of Rs.9,41,050/-.
76.3. Dw.42 in para-14 of her evidence has deposed that they had let out site No.3 situated at 203 203 Spl.C.C.No.232/2009 Kodigehally in favour of Mr. Mallappa for Rs.41,000/-. There were two sheet houses in the said property and in the year February -2003 they got repaired the said houses by putting tiles flooring and bath room and let out the premises in favour of Mr. Rajesh Madan and Nagpal Madan for Rs.3 lakh for a period of five years. The prosecution has disputed the accused had acquired the income under the lease agreement. During cross- examination, Dw.40 in para-52 has admitted that there is no corresponding documents to prove repayment of the lease amount in favour of the tenants after expiry of the lease period.
76.4. The accused have produced Ex.D66(a) Lease agreement dated 25.4.2003 executed by Mr. T.Nagesh for an amount of Rs.3 lakhs. Ex.D66(b) is the lease deed dated 11-02-2003 said to have been executed by Mr. C.H.Satish for Rs.3 lakhs and Ex.D66(c) is the lease deed dated 07-3-2003 executed by Mr. Rajesh Mohan and Madan Nagpal for Rs.3 lakhs in favour of the accused No.2 Smt. Sartaj. But D66(a) to D66(c) lease deeds were not found in the custody of the accused No.1 and 2 204 204 Spl.C.C.No.232/2009 at the time of drawing Ex.P9 house search mahazar. These documents are not registered and hence the chances of creating the said documents after registration of the criminal case against the accused cannot be totally ruled out. There is no satisfactory and acceptable explanation from the accused regarding the proper custody of the original lease agreements. In the above circumstances this Court is not inclined to appreciate Ex.D-66(a) to (c) original lease agreements as valid and genuine documents.
76.5. The accused No.2 has not produced copy of her income tax documents to claim the declaration of the rental income to the Income Tax department to show the legitimacy of the said income. Moreover, the witnesses examined as Pw-13 and 14 have also not produced any documents regarding the payment of alleged lease amount as on the date of agreement and corresponding proof in support of the sources of their income and how they had made arrangement to make the payment. The accused No.2 in her evidence has admitted that there is no document to show rent paid by Mr. Mallappa. Ex.D-84 205 205 Spl.C.C.No.232/2009 APR of the accused is surrounded by suspicion regarding its genuineness. The accused No.1 and 2 have also not produced any documents to show that after receiving the lease amount from the tenants they had deposited the said amount in their bank account. Therefore, the accused No.1 and 2 have failed to prove that they had received income of Rs.9,41,050/- by virtue of Ex.D-66 three lease agreements. The accused have failed to examine T.Nagesh and C.H. Satish.
77. The accused No.1 has submitted that he had borrowed GPF loan of Rs.1,50,000/- but the IO has not considered the said amount as his lawful income. The prosecution has produced Ex.P-40 bank account extract and as per the document on 20.4.1995 Rs.1,50,000/- amount was credited to the bank account of accused No.1. Dw.40 in his evidence has also deposed that the IO has deliberately not considered the said amount as his income. The accused in his schedule 9B explanation marked as Ex.P52 has furnished the details of borrowing of loan and it was repaid through salary deduction at the 206 206 Spl.C.C.No.232/2009 rate of Rs.3,750/- per month. It is necessary to make note of the fact that the IO while considering the income of the accused has only considered the net income and therefore rightly he has not considered the loan amount as income and the repayment of the said loan by deduction from the salary towards the expenses. Hence, the conclusion of the IO in not considering the GPF loan of Rs.1,50,000/- borrowed by the accused as income is proper and correct. In the result the prayer of the accused to consider the GPF loan of Rs.1,50,000/- as income during the check period is rejected.
78. The accused No.1 in his schedule explanation Ex.P53 (page No. 34 and 35) has contended that he had received cash reward of Rs.5,625/- from the department and the IO has not considered the said amount under the head of income. The IO in the final report has given reason that the cash reward received from the department is included in the net salary of the accused. The accused has not produced any document to show it is not included in his salary. Therefore, the contention of the accused regarding receipt of cash reward is 207 207 Spl.C.C.No.232/2009 accepted but his prayer to include it as income is rejected.
79.1. The accused No.1 has claimed that he had received Rs.19,50,000/- from Mr. Veeranna Kutty from 19.5.2003 to 1.12.2004 in five installments and the said amount has to be considered as his legitimate income. In order to prove this transaction the accused got examined Mr. Veeranna Kutty as Dw.6 and he has produced Ex.D-1 original agreement of sale dated 17.5.2003 entered between himself and the accused No.1. The contents of the said document show that Dw.6 has agreed to purchase site No.2-C-111 situated at East NGEF Layout, Bengaluru for a consideration of Rs.43,50,000/- and paid part sale consideration of Rs.19,50,000/- in the year 2003.
79.2. During cross-examination Dw.6 has admitted that for all these years from 17.5.2003 he has not obtained the registered sale deed from the accused No.1 even though the time fixed for the performance of the contract in the agreement is three months have been 208 208 Spl.C.C.No.232/2009 lapsed. It is further elicited that Dw.6 has not initiated any legal action against the accused No.1 either for recovery of Rs.19,50,000/- advance amount claimed to have been paid or for seeking the specific performance of contract.
79.3. It is the evidence of Dw.6 that in order to make payment of advance sale consideration relating to Ex.D1 agreement, he had borrowed loan of Rs.20 lakhs from the Federal Bank and paid the said amount in favour of the accused No.1. But the admission of Dw.1 elicited during his cross-examination shows that he had borrowed the housing loan from Federal Bank and secondly at the time of borrowing the loan he had not deposited Ex.D1 agreement of sale as security for the transaction. The witness further admitted that he had not disclosed before the bank Ex.D1 the agreement of sale transaction and he is going to purchase the property. Therefore, the evidence of Dw.6 that he had borrowed loan of Rs.20 lakhs from Federal bank or out of the housing loan he had paid Rs.19,50,000/- in favour of the accused No.1 at the time of entering Ex.D1 agreement of sale is 209 209 Spl.C.C.No.232/2009 surrounded by serious suspicion. Dw.6 has also not produced any documents regarding filing of his income tax returns. The explanation of Dw.6 that on account of registration of the present criminal case he has not filed the suit against the accused No.1 or insisted him to execute the registered sale deed is not probable, satisfactory and acceptable. From the admissions elicited during the cross-examination of Dw.6 creates serious doubts regarding entering of Ex.D1 agreement of sale between the parties.
79.4. Dw.7 Mr. Abubekar and Dw.14 Mr. Abbas were examined on behalf of the accused and they are the signatories to Ex.D1 agreement of sale as witnesses. In their examination-in-chief they deposed regarding passing of part sale consideration. Dw.40 in his cross- examination para-45 has claimed that he had received Rs.28,50,000/- from Dw.6 Mr. Veeranna Kutty in 5 installments. It is his further contention that Dw.6 could not make payment of balance sale consideration and therefore the sale transaction was not completed. Dw.40 in para-3 of his examination-in-chief deposed that he had 210 210 Spl.C.C.No.232/2009 executed Ex.D1 agreement of sale in favour of Veeranna Kutty and agreed to sell the property for Rs.42,20,000/- and had received Rs.19,50,000/- in 5 installments as advance amount. Therefore, the evidence of Dw.40 as deposed in examination-in-chief and during his cross- examination regarding the actual advance payment received by him are inconsistent and contradicting.
79.5. In the final report the IO has stated that Ex.D1 agreement of sale came to be produced by the accused along with the schedule after 2 years 9 months from the date of registration of the case and it is an afterthought attempt to claim the income. It appears for the aforesaid reasons the IO has not considered Rs.19,50,000/- as income of the accused during the check period. From the cross-examination of Dw.6, 7, 14 and 40 the prosecution is able to elicit material admission and to create doubt in the mind of the court that the accused No.1 and Dw.6 had entered into Ex.D1 agreement of sale is highly improbable. It is true, at the time of examination Dw.6 he has produced Ex.D1 agreement of sale. The agreement of sale is an 211 211 Spl.C.C.No.232/2009 unregistered document and hence it is one of the strong reasons to suspect regarding the genuineness of the transaction. There is every reason to suspect Ex.D1 agreement of sale has been created for the purpose of the case. After the date of alleged receipt of advance sale consideration of Rs.19,50,000/- the accused No.1 had not either declared his income to the income tax department or paid the income tax or submitted the returns to the said department. Hence, the accused No.1 has failed to prove that he had received Rs.19,50,000/- from Dw.6 Mr. Veeranna Kutty in connection with Ex.D1 agreement of sale transaction.
80. The accused No.1 has claimed that he had received Rs.2,500/- from Dw.34 Nishar Ur Rehman through Cheque. Dw.40 in his evidence para-37 has deposed that he had received the said amount. The accused has relied upon Ex.D-21 pass book but therein there is no entry regarding payment of Rs.2,500/- in favour of the accused No.1. Hence, prayer of the accused to consider Rs.2,500/- received from Dw.34 is not proved.
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81. The accused has contended that he had received Rs.25,000/- from Dw.34 Nishar Ur Rehman when he was working at Qatar. Dw.40 in his evidence para-21 has deposed this fact. Dw.34 in his evidence para-5 has deposed this aspect and has produced Ex.D30 to 32 copies of demand draft. Even if the evidence of Dw.34 and 40 are accepted admittedly the aforesaid demand draft were sent in the month of August, September and October-1987 much prior to the check period. Therefore, even if the aforesaid payments are proved, the accused No.1 is not entitled take the advantage because it was the income much before the commencement of the check period.
82.1. The accused No.2 has submitted that during the check period she had received Rs.1,39,500/- by way of rent from the tenant Mr.C.Muniraju and Rs.1 lakh by way of advance in respect of property/site No.48 situated at Gedlehally village, Bengaluru. The prosecution has examined P.w.23 Mr. C.Muniraju to prove Ex.D-72 to 74 rent agreements have been created for assisting the 213 213 Spl.C.C.No.232/2009 accused to claim enhanced income. But Pw.23 has not supported the prosecution case and with the leave of the court the learned Public Prosecutor has cross-examined the witness. He has denied that during the investigation the police have recorded his statement as per Ex.P78.
82.2. Dw.40 and 42 in their evidence have deposed that they entered into rent agreement as per Ex.D72 to 74 and they were regularly receiving monthly rent of Rs.5,000/- per month for first 11 months and Rs.5,500/- for the next 11 months and Rs.6,000/- for the remaining 4 months up to Feb-2006. During cross-examination Dw.40 in para-56 has admitted that except ExD72 to 74 unregistered rent agreements he is having no other documentary evidence to prove that the Gedlhehally site property was let out in favour of C.Muniraju. It is further suggested by the prosecution that Ex.D72 to 74 have been created for the purpose of the case. During cross- examination Dw.42 in para-20 has stated that the receiving of the rental income from the tenant P.w.23 Muniraju was declared in her income tax returns. But in 214 214 Spl.C.C.No.232/2009 reality the income tax documents of the accused No.2 have not seen the light of the day during the entire trial of the case.
82.3. The accused have not produced any other corresponding documentary evidence except Ex.D72 to 74 to prove that the property has been let out in favour of Pw.23. Ex.D72 to 74 documents are unregistered and those documents have been produced by Dw.40. These original documents were not found during Ex.P-9 house search mahazar. Therefore, the possibilities of the aforesaid agreements have been manipulated after the house search mahazar is also probable. The accused have also not produced any documents to show that the receipt of monthly rent was deposited in the bank by producing their bank account extract. Hence, except the oral evidence of PW.23. Dw.40 and 42 there is no other acceptable evidence to appreciate the contention of the accused. In the result, this Court has arrived to the definite conclusion that accused No.1 and 2 have failed to prove that they had received Rs.2,39,500/- during the check period as advance and monthly rent from P.w.23 215 215 Spl.C.C.No.232/2009 Muniraju. Therefore the contention of the accused to consider Rs.2,39,500/- as income received from the building rent is rejected.
83.1. The accused No.2 has claimed that she had entered into a lease agreement with Mr. K.V.Sathyanarayana Reddy, Managing Director M/s. Charan Homes Pvt.Ltd. and received Rs.5 lakhs as lease amount. According to the accused, the IO has not considered the said amount as their legitimate income. They have produced Ex.D-67 unregistered lease agreement alleged to have been entered into in between the accused No.2 and Mr. Sathyanarayana Reddy for a sum of Rs.5 lakhs for a period of two years.
83.2. Dw.40 and 42 in their evidence have deposed regarding the lease agreement and receipt of Rs.5 lakhs lease amount by way of cash. They have also got examined Dw.15 Mr. D.Narayana the signatory to the Ex.D-67 agreement as a witness. Dw.16 Mr. K. Ramachandra Reddy working as the supervisor and Dw- 20 Mr. Chakradhara Reddy working as the general 216 216 Spl.C.C.No.232/2009 manager M/s Charan Homes Pvt. Ltd., in their evidence have also deposed regarding the parties entering Ex.D67 lease agreement. Dw.40 has produced Ex.D67 original lease agreement but the said document was not found during drawing of Ex.P-9 house search mahazar.
83.3. During cross-examination of Dw.42 in para-23 she has admitted that she had not deposited the lease amount of Rs.5 lakhs received from Mr. Sathyanarayana Reddy in her bank account. In Ex.D67 Rs.5 lakhs was shown to have been paid by cash. She further stated that she is not remembering whether the said amount is declared in her income tax returns. Therefore, there is no corresponding documents produced by the accused or by Dw.16 and 20 to prove the alleged lease transaction. The possibility of Mr. Sathyanarayana Reddy being the Director of M/s.Charan Homes, the builder and developer of Sanjay palace apartment sold the property in favour of the accused No.2 as per EX.P71(b) agreement and again taking the very same property for himself on lease by paying Rs.5 lakhs is highly improbable. 217 217
Spl.C.C.No.232/2009 83.4. Ex.P71(b) is an agreement for proposed construction and the 2nd party Mr.K.V.Sathyanarayana Reddy had assured to complete the construction within 12 months from the date of agreement i.e. 20.7.2005. Ex.D67 lease agreement was entered into on 13.2.2006 and the accused No.2 shown as received Rs.5 lakhs by way of cash. On 14.3.2006 the said amount was not found during the house search mahazar. Therefore, as on 13.2.2006, the construction of the flat 401 was completed or possession of the property was delivered in favour of the accused No.2 itself is doubtful. Moreover, the vendor Mr.Sathynarayana Reddy as the GPA holder in pursuance of Ex.P71 agreement has not executed the registered sale deed in favour of the accused No.2. The date on which construction of the flat the accused No.2 intended to purchase came to be completed or the date of delivery of possession of the said flat is not forthcoming from any authenticated documentary evidence produced by the accused. As per the evidence on record admittedly the accused No.2 till date is not the 218 218 Spl.C.C.No.232/2009 owner of the property/flat as per law because the registered sale deed is not executed in her favour.
83.5. In this regard, it is necessary to refer Section 17(1)(d) of Indian Registration Act 1908. As per the said provision of law the lease of immovable property for any term exceeding one year is compulsorily registrable document. Therefore, Ex.D-67 lease agreement is inadmissible in evidence and its origin is surrounded by suspicious circumstances. There is every possibility that after 14.3.2006 the date of raid, Ex.D67 agreement came into existence cannot be totally ruled out. The accused No.2 has also not produced her income tax documents to show that she had declared Rs.5 lakhs received in her income tax returns. In Ex.C1 document also there is no reference regarding advancement of Rs.5 lakhs by way of cash in favour of the accused No.2 as the lease amount. Therefore, the accused No.1 and 2 have failed to prove that they received Rs.5 lakhs from Mr. Sathyanarayana Reddy or entering of Ex.D67 lease agreement.
84.1. The accused No.1 has submitted that during the check period he had received rental income of 219 219 Spl.C.C.No.232/2009 Rs.5,76,500/- from the tenants in respect of site property No.2C11 NGEF Layout, Bengaluru. Ex.P18 is the certified copy of the sale deed executed in favour of the accused No.1 in respect of the aforesaid property by the Secretary, BDA and the said site is measuring 12 x 20 meter east-west and 18 x30 meter north-south.
84.2. Dw.40 in his evidence has deposed that in 2004 through memorandum of understanding he had let out the said site in favour of Pw.19, 20, 24, 25 and 26 and had received total amount of Rs.1,76,000/- as rent. Ex.P53(a) was marked subject to objection. During cross- examination of Dw.40 in para-45 the prosecution has contended that Ex.53(a) (page No.36) is a created document.
84.3. Pw.19 Dahananjeya, Pw.20 Nataraju, Pw.24 Naveesh Kumar, Pw.25 N.Krishnamurthy and Pw.26 Mukunda in their evidence have deposed that from 2004 they are running garage in the property of the accused No.1 and they were paying Rs.8,000/- each per month towards rent and deposited Rs.80,000/- each as advance amount. When the above referred witness were 220 220 Spl.C.C.No.232/2009 examined they have not supported the prosecution case and denied the statement recorded by the IO under Section 161 of Cr.P.C. The prosecution has cross- examined these witnesses and the statements said to have been recorded by the IO was denied and it was marked as per Ex.P75, 76, 79, 80 and 81. The accused has not produced any corresponding documents such as bank accounts details in order to prove the deposit of monthly rent by the tenants or regarding payment of security deposit. Therefore, the evidence of Pw.19, 20, 24 to 26 that they have constructed compound wall around the property or they put up shed in the property and thereafter made payment of Rs.80,000/- as security deposit or also paying monthly rent from the year 2004 is highly improbable and unbelievable. The evidence of the witnesses show that the accused in order to enhance his lawful source of income created the lease agreements and produced the documents along with his schedule explanation. The contention of the accused regarding acquisition of income from rent is not proved from any cogent and satisfactory evidence. Therefore, the 221 221 Spl.C.C.No.232/2009 accused have failed to prove that they received Rs.5,76,000/- income by way of rent and advance security deposit.
85. From the aforesaid evidence, facts, circumstances and the reasons and discussion this Court arrived to the definite conclusion that the accused No.1 and 2 have proved their lawful income received during the check period which were not considered by the IO under the following heads:
Loan borrowed from Dw-5 Syed 1 Rs. 4,00,000/-
Abdul Kabeer Mortgage loan borrowed from 2 the Gandi Nagar Credit Co- Rs. 25,00,000/- operative Society Amount transferred from the bank account of the deceased 3 Rs.2,50,000/-
Shaik Bale to the bank account of the accused No.1 and 2 4 GPF loan Rs.10,608/-
Amount received through
5 cheque from Ms. Nilopher
Rs.35,000/-
/Dw28
Total
Rs.31,95,000/-
86. It is the specific case of the prosecution that the accused No.1 had illegally amassed the wealth in his 222 222 Spl.C.C.No.232/2009 name and in the name of his wife, the accused No.2 during the check period. The Hon'ble Supreme Court in K. Veeraswamy case has held that:
"Statutory evidence which must be proved by the prosecution, it is for the prosecution to prove that the accused or any person on his behalf has been in possession of pecuniary resource or property disproportionate to his known source of income. When that onus is discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionate of the properties possessed by him."
In view of the said decision, while considering the commission of an offence under section 13(1)(e) of the PC Act, it is relevant to note that the initial burden to prove that either the accused or any member of his family during the check period has been in possession of the property disproportionate to his known source of income, lies on the prosecution. If the initial burden is not discharged by the prosecution, the onus does not 223 223 Spl.C.C.No.232/2009 shift to the accused to offer his explanation as to how he could acquire either directly or through some other members of his family possession of the property disproportionate to the known source of income. In the case on hand, the prosecution has discharged its initial burden of proof by foundational facts and proved that the accused No.1 has acquired property in the name of his wife the accused No.2. The accused No.2 has abetted the accused No.1 to acquire the property in her name.
87. At this stage it is apposite to refer Section 107 of IPC and as per the said provision the ingredients of the offence of abetment are that a person who abets the doing of a thing who instigates any person to do that thing, engages with that person in any conspiracy for the doing of that thing, or intentionally aids by any illegal act or omission, the person doing of that thing is deemed to have committed an offence of abetment. In the case on hand the accused No.2 has engaged herself with the accused No.1 and intentionally aided him to acquire the property in her name and thereby she is guilty of the offence of abetment. If the act abetted is committed in 224 224 Spl.C.C.No.232/2009 consequence of the abetment and when no express provision is made for the punishment of such abetment , the said act is punishable as provided for the offence. It is necessary to make note of the fact that Section 12 of the P.C. Act prescribe punishment only for the offence under Section 7 and 11 of the said Act.
88. In Krishnanda Agnihotry case the Hon'ble Supreme Court and the Karnataka High Court in Gurumallappa case held that if the excess surplus assets of the accused is less than 10% and if it is comparatively small do not justify the prosecution. In the case on hand from the proved facts the disproportionate income of the accused is exceeding 44%.
89. In the judgment of Hon'ble Supreme Court in M.Krishnareddy case para-6 held that Section 13 (1)(e) it is not mere acquisition of the property constitutes an offence but it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending the law. In the case on hand also the accused No.1 and 2 have failed to satisfactorily 225 225 Spl.C.C.No.232/2009 account for the possession excess income during the check period.
89. In Seetha Hemachandra Shashital case as per the facts the Hon'ble Supreme Court held that the abetment of offence by mother and mother-in-law of the accused on account of insufficient materials to frame charge against them and hence the case came to be quashed considering their age. The ratio of the said case is not applicable to the facts of the case on hand.
90. In the judgment in R.Kannappan and another case the Hon'bel Madras High Court held that the accused has to give plausible explanation for the disproportionate wealth is sufficient. It is settled law that if income from lawful source is explained by the accused by placing evidence, the court by applying the rule of preponderance of probability can hold that he has discharged the burden of proof.
91. It is necessary to refer the decision reported in (2019) 7 SCC 515 in the case of State of Tamilnadu vs N. Suresh Rajan the Hon'ble Supreme Court held that the 226 226 Spl.C.C.No.232/2009 property in the name of an income tax assessee itself cannot be a ground to hold that it actually belongs to such an assessee. The payment of income tax would not by themselves establish that such income had been from lawful source as contemplated in Explanation to Section 13(1)(e) and independent evidence would be required to account for the same. But in the case on hand the accused No.2 had not paid income tax and hence the income tax documents as well any other reliable and cogent independent evidence is lacking.
92.1. The accused has relied on the judgment reported in (2020) 9 SCC 636 in Ashoo Surendranth Tewari vs Dy.SP CBI. In the said decision, the Hon'ble Supreme Court held that in case of exoneration in adjudication proceeding holding that the person is innocent, the criminal prosecution on same set of facts and circumstances cannot be allowed to continue. In the case on hand the accused No.1 has produced Ex.D-94 copy of the final order dated -7-2020 (date is not forthcoming) in departmental proceeding and it is his 227 227 Spl.C.C.No.232/2009 argument that in view of exoneration in the departmental proceedings, he should be acquitted. This court meticulously gone through Ex.D-94 order and the reasons assigned for arriving the final conclusion to exonerate the accused. However in order to claim the benefit and application of the ratio laid down in the above referred decision of the Hon'ble Supreme Court, the accused has to show that there is an identical charge in the criminal and in the departmental proceedings, secondly in the departmental proceeding the finding was on merits. Ex.D-94 proceeding reveals that only four witnesses were examined and Ex.P-1 to 15 documents were marked on the side of the disciplinary authority. Among them three witnesses are the witnesses to Ex.P-9 house search mahazar and the accused has not disputed conducting of the house search, and drawing of the mahazar. The witness No.4 the IO/ Pw-1 is the only material witness examined in the adjudication proceeding. Whereas in this proceeding the prosecution got examined 30 witnesses and produced Ex.P-1 to 85 documents to prove the charge against the accused. The above facts 228 228 Spl.C.C.No.232/2009 apparently show that for the reasons best known, the incriminating and material oral and documentary evidence were deliberately not placed before the adjudication authority. In the above referred decision the Apex Court held that in case of exoneration in disciplinary proceeding on merits and the allegation found to be not sustainable and the person is held innocent in such circumstances only the criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, however if the exoneration is on technical ground and not on merit, the prosecution may continue. As per the facts of the said decision, the Honble Court held that the chances of conviction appear to be bleak but in the case on hand the prosecution is able to prove the charge against the accused. It is the well settled principle that the adjudication proceeding and criminal proceedings are independent and the finding in an adjudication proceeding is not binding on the proceeding for criminal prosecution. Hence coming back to the facts the correctness or otherwise of Ex.D.94 order cannot be decided by this Court as it does not sit in appeal over 229 229 Spl.C.C.No.232/2009 the said order. It is appears on account of withholding the material evidene, in Ex.D-94 order, the authority arrived to the conclusion and held that the excess income of the accused No.1 is Rs.94,51,699/-. Accordingly for the above reasons this court can hold that Ex.D-94 order was not passed on merits and in the result the ratio of the above referred judgment is not applicable to the facts of the case on hand. Hence the accused is not entitled to take advantage of his exoneration in Ex.D-94 disciplinary proceeding to seek discharge/acquittal in this proceeding.
92.2 In the judgment reported in (2012) 9 SCC 685 in the case of NCT Delhi vs Ajay Kumar Tyagi the three judge bench of the Hon'ble Supreme Court held that the decision in (1996) 9 SCC 1 in P.S. Rajya vs State of Bihar does not lay down any proposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or evidence has to be quashed.
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Spl.C.C.No.232/2009
93. In the judgment reported in AIR 2005 SC 1406 in the case of Hindustan Petroleum Corp. Ltd., vs Suresh Berry the Hon'ble Supreme Court held that the onus is on the accused to prove that the assets were not disproportionate to the known source of income. The expression known sources of income is related to the sources known to the authorities and not the accused. The explanation to Section 13(1)(e) of the P.C. Act provides that for the purpose of the section known sources of income means income derived from any lawful source and such receipt is intimated in accordance with the provisions of law, rules, or order for the time being applicable to the public servant. The assets were acquired and from what source of income is within the special knowledge of the accused. In the criminal case, the accused has to prove the source of acquisition and he has to satisfactorily account for the same. In the case on hand the accused have failed to prove the sources of their income by the standard of proof by preponderance of probability.
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94. From the above facts, reasons, and on proper appreciation of the evidence this Court arrived to the conclusion that the assets, expenditure, income and the disproportionate assets of the accused is calculated as under Sl.
Heads Amount (in Rs.)
No.
Assets acquired during the
1. Rs. 61,27,351/-
check period
Expenses incurred during
2. Rs.34,93,644/-
check period
Total assets and expenditure
3. Rs.96,20,995/-
Income earned during the
4. Rs.66,50.787/-
check period
5. Assets disproportionate Rs.29,70,208/-
Disproportionate assets in percentage 29,70,208 ____________X 100 =44.65% 66,50,787 Therefore, from the available evidence on record it is clear that the prosecution has proved that the accused No.1 had excess asset of Rs. .29,70,208/-. The prosecution further proved beyond doubt that the accused No.1 and 2 have amassed wealth 232 232 Spl.C.C.No.232/2009 disproportionate to the known source of income of the accused No.1. The accused No.2 has abetted the accused No.1 to acquire the disproportionate property. For the above said reasons point No.2 and 3 are answered in the affirmative.
95. Point No 4: In view of the findings on point No.2 and 3, the accused No.1. and 2 are liable to be convicted for the charges framed against them. In the result, this Court proceed to pass the following:
ORDER Acting under section 248(2) of the Cr.P.C, the accused No.1 is convicted for the offence defined under Section 13(1)(e) punishable under section 13(2) of the Prevention of Corruption Act, 1988.
Acting under section 248(2) of the Cr.P.C, the accused No.2 is convicted for the offence punishable under section 109 of the Indian Penal Code.233 233
Spl.C.C.No.232/2009 The bail bonds and surety bonds of the accused stands discharged.
(Dictated to the Judgment Writer directly on computer, printout taken, corrected, signed and then pronounced by me in open Court on this the day of 30th day of July, 2022) Sd/-
[LAKSHMINARAYAN BHAT K.] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU The judgment is pronounced by finding the offender No.1 is guilty of the offence under Section 13(1)(e) read with 13(2) of The Prevention of Corruption Act, 1988 and the offender No.2 is guilty of the offence under Section 109 of the Indian Penal Code.
2. Heard the learned Sri. Shanker P. Hegde advocate appearing on behalf of the offenders and the learned Public Prosecutor on the quantum of sentence to be imposed to the offenders. The learned Public Prosecutor has submitted that to pass the maximum sentence of imprisonment as prescribed under the Act.234 234
Spl.C.C.No.232/2009
3. The learned defence Counsel has submitted that the offence dates back to 14.3.2006 and as on the date of offence the minimum punishment prescribed was imprisonment for not less than one year but which may extend to 7 years. He further submitted that both the offenders were regularly attending the court during the entire trial went on for more than 13 years and they have suffered in this process. The offenders are having 3 children and if both of them are sentenced to imprisonment exceeding 3 years, the children are going to suffer and no one to look after them. It is his further submission that in order to prefer an appeal before the concerned court and to take proper instruction the presence of the offenders is necessary and hence if they are sentenced to imrpisonment exceeding 3 years, it is not possible for him to collect the proper and required instruction from them. The other submission of the offenders is that if they are sentenced to imprisonment exceeding 3 years the marriage prospects of their children will going to be hamper. For all these reasons the learned Counsel has submitted the Court to take 235 235 Spl.C.C.No.232/2009 lenient view and to pass sentence of imprisonment in between 1 year and maximum 3 years.
4. It is well settled law that as held in the judgment of the Hon'ble Supreme Court reported in AIR 2004 SC 2317 in N Bhargavan Pillai vs State of Kerala and in 2006 AIR SCW 5267 The State V/s A Parthiban the provisions of The Probation of Offenders Act to the cases covered under the PC Act is not applicable.
5. The offender No.1 was working as the Police Inspector, CCB Bengaluru and retired as the Deputy Superintendent of Police. The Offender No.2 is the wife of the offender No.1 and she is a housewife. In the light of the facts and circumstances of the case, with particular reference to the nature and conduct of the offenders in committing the offence, the quantum of sentence to be imposed has to be determined. By committing the offence, the offenders have invited the risk to themselves and now they cannot plead for leniency in the sentence to be imposed against them. On the other hand, the facts and circumstances of the case, the 236 236 Spl.C.C.No.232/2009 conduct of offender No.1 and 2 in accumulating Rs.29,70,208/- disproportionate assets do demand that they are punished by appropriate sentence of imprisonment, after taking into consideration the submission made on their behalf by the learned defence counsel. The offender No.2 has abetted her husband the offender No.1 in committing the offence and thereby she is found guilty of abetment.
6. In this regard it is necessary to refer few judgments of the Apex court to ascertain the principles to be followed while passing sentence of imprisonment in cases involving the corruption. In AIR 2013 SC 1682 Niranjan Hemchandra Sashittal case the Apex court held that the gravity of the offence under the PC Act is not to be judged on the quantum of bribe, as corruption is not to be justified in degree. In the judgment reported in 2020 SCC on line 412 in the case State of Gujarath Vs. Mansukhbhai kanjibhaibai Shah the Apex court held Corruption is the malignant manifestation of a malady menacing the morality of men. There is common 237 237 Spl.C.C.No.232/2009 perception that corruption in India has spread to all corners of public life and is currently choking the constitutional aspirations enshrined in the preamble.
7. In the judgment reported in (2006)8 SCC 693 State of M.P. Vs. Shambhu Dayal Nagar the Hon'ble Supreme court while responding to the plea for a lenient view for a charge of corruption expressed its concern against rampant venality by public servant and observed that the public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post.
8. In the judgment reported in (2000) 8 SCC 571 in the case between Madhukar Bahskarrao Joshi vs State of Maharastra para 18 the Apex court observed:
" When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and 238 238 Spl.C.C.No.232/2009 in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given, the sentence shall not be less than the minimum prescribed under the Act. Such a legislative insistence is reflection of parliament's resolve to meet corruption cases with a very strong hand and to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants were warned through such a legislative measure that corrupt public servants have to face very serious consequences. "
9. In the decision reported in AIR 2015 SC 2678 in the case of Shanthilal Meena vs State of NCT Delhi, the Hon'ble Supreme Court exhaustively dealt with penological philosophy behind sentencing and held that the punishment for the offences under the PC Act there is any scope for reforming the convicted public servant. Unless the courts awards appropriately deterrent 239 239 Spl.C.C.No.232/2009 punishment taking note of the nature of the offence and the status of the offender, people lose faith in justice delivery system and very object of the legislation will be defeated. The court has thus a duty to protect and promote public interest and build up public confidence. Misplaced sympathy or unwarranted leniency will send a wrong signal to the public giving room to suspect the institutional integrity affecting the credibility of its verdict. As per the facts of the said decision the sub- inspector of police was found guilty. In view of the above ratio, this court should bear in mind the expectation of the people to prevent corruption in the police department by providing prompt conviction and stern sentence. The offender No.1 was working as the police inspector as on the date of offence and the above referred law laid down by the Apex court are aptly applicable to the facts of the case on hand.
10. In the case on hand, the offence was committed during the check period from 01-08-1991 to 14-3-2006. Thus, the offence under Section 13(1)(e) of 240 240 Spl.C.C.No.232/2009 the PC Act as on the date of offence was punishable with imprisonment which may extend to seven years and the minimum punishment shall be not less than one year and fine. As per section 16 of the P.C. Act where a sentence of fine is to be imposed under subsection (2) of Section 13 the court shall take into consideration the pecuniary resources or property for which the offender is unable to account satisfactorily. In the case on hand, the offender No.1 has failed to satisfactorily account for assets worth 29.70 lakhs.
11. After considering the facts and circumstances of the case and for the reasons stated herein above, it is just and proper strike the balance between the maximum and minimum sentence prescribed under the provisions of law. This court is the firm opinion that it is not a fit case to pass the minimum sentence of imprisonment and the offenders have not made out any exceptional case to impose minimum sentence of imprisonment. After considering the age of the offenders this court finds it proper to sentence the offender No.1 to undergo rigorous imprisonment for four years and to 241 241 Spl.C.C.No.232/2009 pay fine of Rs.50 lakhs. The offender No.2 is not a public servant and she has abetted her husband, the offender No.1 in acquiring the assets. the punishment prescribed for abetment is as provided for the offence under Section 13(1)(e) of the P.C.Act. However on considering she is a woman, this Court is impressed from the submission of the defence counsel and finds it proper to show some leniency while imposing the sentence of imprisonment and fine. Accordingly the offender No.2 has to undergo simple imprisonment for a period of three years and to pay nominal fine of Rs.50,000/- would meet the ends of justice. In the result this Court proceed to pass the following:
ORDER The offender No.1 by name Mr. Shami Ur Rehman is sentenced to undergo rigorous imprisonment for a period of four years and also to pay fine of Rs.50,00,000/- (fifty lakhs only) for the offence under Section 13(1)(e) read with Section 13(2) of The Prevention of Corruption Act 1988. In default of payment fine he shall undergo simple imprisonment for further period of six months.242 242
Spl.C.C.No.232/2009 The offender No.2 by name Mrs. Bilkis Jahan is sentenced to undergo simple imprisonment for a period of three years and also to pay fine of Rs.50,000/- (Fifty thousand only) for the offence under Section 109 of the Indian Penal Code and in default of payment fine, she shall undergo simple imprisonment for further period of two months.
Office is directed that the free copy of the judgment be furnished to both the offenders forthwith.
(Dictated to the judgment writer directly on computer, typed by him, corrected, signed and pronounced by me in the open Court on this the 30th day of July, 2022.) Sd/-
[LAKSHMINARAYAN BHAT K.] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : V.Shekhar PW 2 : M.C.Sathyanarayana 243 243 Spl.C.C.No.232/2009 PW 3 : Jayadeva Prakash PW 4 : T.N.Ravi Prakash PW 5 : Smt.Sunitha PW 6 : Sister Binitha PW 7 : N.V.R.Naidu PW 8 : Sister Sndhya PW 9 : B.V.Venkatappa PW 10: C.M.Subbaiah PW 11: C.Prashanth PW 12: Suresh Gopi PW 13: Rajesh Madhan PW 14: Madhan Nagpal PW 15: Zawad M.K.Rehman PW 16 : Areef Shaik PW 17 : Smt.Chitra Ramesh PW 18: Muni Nanjappa PW 19: Dhananjaya PW 20: Nataraju PW 21: Jayappa Reddy PW 22: Smt.Mary Chandra PW 23: C.Muniraju PW 24 : Naveesh Kumar 244 244 Spl.C.C.No.232/2009 PW 25: N.Krishna Murthy PW 26 : Mukunda PW 27: Udaya Shankar PW 28: Mahadevaiah PW 29: Sathyanarayana Rao PW 30: Shashikumar.N List of documents marked on behalf of prosecution:
Ex P1 : Source Report Ex P1(a): Signature of PW 1 Ex P2: Memo Ex P3 : FIR in Crime No.8/2006 Ex P4 : Search Warrant Ex P4(a): Signature of accused Ex P5 to P8 : Four requisition letter dtd 13.3.2006 (Excise Department) & Social Department Ex P9 : Mahazar dtd 14.3.2006 Ex P9(a): Signature of PW 1 Ex P9(b): Signature of accused Ex P9(c): Signature of PW 2 Ex P10 : Mahazar drawn at Bank dtd 14.3.2006 (Locker No.146) Ex P10(a): Signature of PW 1 Ex P10(b): Signature of PW 2 Ex P11 : Syndicate bank documents Ex P 12: ING Vysya Bank documents Ex P 13: Education expenses /MES Kishore Kendra 245 245 Spl.C.C.No.232/2009 Ex P 14: MES P.U.College expenditure details Ex P 15: Veeresh Gas Agency details Ex P 16 : Canara Bank/ share details Ex P17 : St.Joseph High School/Zia Ur Rehaman educational expenditure Ex P18 : BDA /Sale deed Ex P19 : M.S.Ramaiah College/education expenditure Ex P20 : Central Records/Bangalore- sale deed copies Ex P 21: Service particulars of accused Ex P22: Clumy Convent/Education expenditure details Ex P22(a): Signature of H.M. of School Ex P23: Baraward Extract of accused Ex P24 : Copy of sale deed and rectification deed Ex P25 : Presidency school/ Education expenditure of Sana Ur Rehaman ExP26 : Copy of sale deed Khata Sy.No.9/3 Chikkabettahalli.
Ex P27 : Sale deed and Encumbrance certificate of site No.42, 43, 78 and 79 Ex P28 : Documents/E.C in respect of Sy.No.21/2 Ex P29: Documents/E.C in respect of property belonging to Sartaj Begaum.
Ex P30 : Vysya Bank policy details of wife of the accused.
Ex P31: Details of account No.31353 Canara Bank Ex P32: Sale deed site No.561 of Sub-Registrar's office, Kengeri.246 246
Spl.C.C.No.232/2009 Ex P33: Sale deed and Encumbrance certificate of Jafar Bi Ex P34 : Details of account No.12662 of K.Abdul Masjid Ex P35 : Details of Bank account No.4247 - 43363/ Bilkish Jahan Ex P35(a): Transaction sheet Ex P36 : I.T.Returns and PAN details of accused Ex P37 :Details of Education expenditure of children of accused from Sofia High School Ex P38 : Education expenditure of Sana Ur Rahaman Ex P39 : Particulars of Water charges/ BWSSB No.3 sub-division.
Ex P 40: Details of account No.150557, Canara Bank Ex P 40(a): Transaction of Rs 2,50,000/-
Ex P41: Details of Education expenditure of children of accused from Oriental English School Ex P42: Sale deed and encumbrance certificate of Site No.25, HAL Ex P43: Account details of accused from SBI Jalahalli Ex P44: Details of family expenditure of accused Ex P45: Retirement details of father of accused Ex P46: Islamic Voice dtd 9.9.2008 Ex P47: Particulars of subscription paid to Times of India Group office Ex P48 : Particulars of Electricity charges paid by the accused.247 247
Spl.C.C.No.232/2009 Ex P49: Particulars of Electricity charges of the accused.
Ex P59: Particulars of Education Expenditure from Sofia High School Ex P60: Pension details, received from District Treasury Ex P 61 : Schedule submitted by Shami Ur Rahaman Ex P 53: Schedule submitted by Shami Ur Rahaman Ex P 53(a) : Xerox copy of M.O.U. Ex P 54: Sale deed in respect of site No.8, K.R.Pura Ex P 55: LIC Maturity benefit details Ex P56 : Loan details issued by SBI, Bengaluru Ex P57 : PLI details of accused Ex P58 : Sale deed / encumbrance certificate of site No.26 and 27.
Ex P59 : Electrical Expenditure site/2C-111 Ex P60 : PLI - Premium paid details Ex P61 : Sanction order dtd.27.06.2009 Ex P61(a): Signature of PW 4 Ex P62: General Power of Attorney dtd 1.8.097 Ex P62(a): Signature of PW 9 Ex P63 : Lease-cum-agreement sale Ex P63(a): Signature of PW 10 Ex P64 : 161 statement of PW 11 Ex P65 : 161 statement of PW 12 Ex P66 : 161 statement of PW 13 Ex P67 : 161 statement of PW 14 248 248 Spl.C.C.No.232/2009 Ex P68 : 161 statement of PW 15 Ex P69 : 161 statement of PW 16 Ex P70 : Share certificates, cheque books , pass books, debit cards Ex P71: Copy of documents i.e., sale deeds, RTC, BDA, agreements etc., Ex P71(a): Signature of Dw.15 Ex P71(b): Sale construction agreement Ex P72 : Documents of BDA, Insurance Company, LIC, Vysya Life Insurance Police, Gas Receipts etc. Ex P73 : Relevant portion of statement of PW 17 Ex P74 : 161 statement of PW 18 Ex P 75 : 161 statement of PW 19 Ex P 76 : 161 statement of PW 20 Ex P 77 : 161 statement of PW 21 Ex P 78 : 161 statement of PW 23 Ex P 79 : 161 statement of PW 24 Ex P 80 : 161 statement of PW 25 Ex P 81 : 161 statement of PW 26 Ex P 82 : Copy of letter dtd 18.03.2006 Ex P 83 : Attested copy of ledger extract Ex P 84 : Attested copy of correspondence letters List of documents marked by the Court :
Ex C1 : M/s Charan Homes Pvt Ltd Accounts auditors report 2005-2006 Ex C 2: Ledger register extract and cash vouchers Ex C 3 : Loan statement extract dtd 16.03.2019 249 249 Spl.C.C.No.232/2009 Ex C 4 : Legal opinion report dtd 9.1.2004 List of material objects marked on behalf of the prosecution:
- NIL -
List of witnesses examined on behalf of accused:
DW 1 : Smt.Nanjamma DW 2 : Smt.Jayamma W/o Nagaiah DW 3: D'Souza DW 4: Chandrashekar DW 5 : Kabeer Syed Abdul DW 6 : Veeranna Kutty DW 7 : Aboobacker DW 8 : H.A.Chyutha DW 9 : Mujibulla Khan DW 10 : Ayub Khan DW 11 : Saleem DW 12: Milan @ Kaveramma DW 13 : Dhanu Mujumdar DW 14 : Abbas M.K. DW 15 : D.Narayan DW 16 : K.Ramachandra Reddy DW 17 : Chandrashekhar DW 18 : Syed Murthaja DW 19 : Anthony R 250 250 Spl.C.C.No.232/2009 DW 20 : Chakradar Reddy DW 21: Siddique Pasha DW 22: K.Abdul Hajid DW 23: Basath Khan DW 24: Jameel Khan DW 25: Asif Khan DW 26: Smt.Sahataj Begaum DW 27 : Hidayathulla Khan DW 28 : Smt.Nilofur DW 29 : Maqubal Ahamed DW 30: Siraj Babu DW 31: Abdul Rashid DW 32: Vasudevan DW 33: Mallappa DW 34: Nissar-Ur-Rehaman DW 35 : Habib-Ur-Rehaman DW 36 : Aslam DW 37 : Smt.Mumthaz Begaum DW 38: Ramesh DW 39: Ambareesh Patil DW 40: Shami-Ur-Rehaman DW 41: S.Sundara Raghavan DW 42: Smt.Bilkish Jahan List of documents marked on behalf of accused:
Ex D1: Agreement of sale dtd 17.5.2003 Ex D1(a) to D1(d): Signatures of DW.7 Ex D1(e) Signature of DW.40 251 251 Spl.C.C.No.232/2009 Ex D2: Income tax returns details for the year 2004-2005 to 2007-2008 Ex D3 : 3 numbers of electricity bills Ex D4: Agricultural income certificate Ex D5: Agriculture Income Certificate Ex D6: Sale deed in Telugu Ex D7: English translated copy Ex D8 : Certified copy of Sale deed at Vishakapatnam Ex D9: Translated copy in English Ex D 10: Certified copy of Sale deed of site No.19 Ex D 11: Canara Bank pass book Ex D 12: SBI Pass book Ex D13: 5 numbers of cash bill of Payal Jewellers Ex D13(a) to D13(d) Ex D14: M/s Bombay Holding companies dtd 4.8.85 Ex D 15: Overseas Marine Products dtd 10.5.1987 Ex D16: Admission cum retirement deed Ex D17 : Certificate issued by M/s N.T.Co.LLC dtd 18.12.2006 at SHARJAH Ex D18: Certified copy of the sale deed dtd 23.1.95 Ex D18(a): Value of the property (Portion) Ex D19 : SBI Pass book account No.1765/22 252 252 Spl.C.C.No.232/2009 Ex D20 : Syndicate bank pass book account No.5646 Ex D21: Syndicate Bank passbook account No.7606 Ex D22: SBI passbook account No.8645/103 Ex D23: Vysya Bank Pass book account Ex D24 : Letter dtd 5.12.1996 Ex D 25: Certificates dated 1.4.1993 Ex D 26: One old LIC dairy 1990 Ex D26(a): Relevant portion of transaction Ex D26(b) : Signature of DW.30 Ex D 27: Agriculture and Horticulture Certificate Ex D27(a): Signature of DW 33 Ex D28 : Syndicate Bank Passbook account No.7606 Ex D29 : Syndicate Bank Passbook account No.7606 Ex D30 & D31: Carbon copy of demand drafts vide Sl.No.52240000, 5336778 and 5314133 Ex D 33: Power of Attorney Ex D 33(a): Signature of husband of DW 37 Ex D 34: 19 sheet of certified copy of APR Ex D 35: Certified copy of sale deed Ex D 36: Certified copy of sale deed Ex D 37: Certified copy of sale deed Ex D 38: Certified copy of sale deed Ex D 39: Certified copy of sale deed 253 253 Spl.C.C.No.232/2009 Ex D 40: Certified copy of sale deed (True copy) Ex D 41: document in Urdu in respect of Site No. Site No.10, Raichur Ex D 42: Document in Urdu in respect of Site No.8 at Raichur Ex D 43 to D 50: Pass books of the father of accused Ex D 51: Pass book of mother of accused.
Ex D 52: Agreement of sale dtd 10.10.2005 Ex D 53: Certified copy of deed of absolute sale Ex D 54: Agreement of sale dtd 2.11.2000 Ex D 55: Certified copy of sale deed of open plot Ex D 56: Agreement of sale (mother) Ex D 57: Certified copy of sale deed of open plot Ex D 58: Society registration certificate. Ex D 59: Society Membership form of accused No.2 Ex D 60: Loan sanction documents Ex D 61: Shaik Bale Membership form Ex D 62: Certificate issued by Dr.Mallappa Retired Director of Agriculture dtd 25.8.2016 Ex D 62(a): Signature of DW 33 Ex D 63: Bullet Reg No.MEK 1717 documents (8 sheets) Ex D 64: Receipt for stamp paper dated 5.1.2006 Ex D 64(a): Signature of DW 42 254 254 Spl.C.C.No.232/2009 Ex D 65: Income tax return true copies from Income Tax Department Ex D 65(a): Signature of DW 41 Ex D 66: Lease agreement (Smt.Sartaj) Ex D 66(a) to 66(c): Signatures of DW 42 Ex D 67: Lease agreement dtd 13.2.2006 Ex D 67(a): Signature of DW 42 Ex D 68: Letter dtd 24.11.2008 Ex D 69: Letter dtd 26.11.2008 Ex D 70: Letter dtd 24.11.2008 Ex D 71: R.C.Graphics consultancy agreement Ex D 71(a) : Signature of DW 42 Ex D 72: Rent agreement dtd 01.01.2004 Ex D 72(a): Signature of DW 42 Ex D 73: Rent agreement dtd 1.12.2004 Ex D 73(a): Signature of DW 42 Ex D 74: Rent agreement dtd 1.11.2005 Ex D 74(a): Signature of DW 42 Ex D 75: Computer letter head Ex D76 : Canara Bank certificate and A/c.No.1353 Ex D 77: Syndicate bank account details Ex D 77(a): Particular transaction Ex D 78: Letter of Special Land Acquisition Officer, KIADB, Kalburgi dtd 26.11.2016 with attested copy of certificate dtd 12.4.2006 Ex D 79: Delivery note of MEK 1717 255 255 Spl.C.C.No.232/2009 Ex D 80: Agreement of sale dated 13.6.2005 Ex D 80(a): Signature of DW 42 Ex D 81 : Asset and Liability statement extract for the year 2000-01 Ex D 82 : Asset and Liability statement extract for the year 2002-03 Ex D 83 : Asset and Liability statement extract for the year 2003-04 Ex D 84: Asset and Liability statement extract for the year 2004-05 Ex D 86 : Asset and Liability statement extract for the year 2005-06 Ex D87: Annual confidential report Ex D88: Annual confidential report of the year 2001-02 Ex D89: Annual confidential report of the year 2002-03 Ex D90: Annual confidential report of the year 2003-04 Ex D91: Annual confidential report of the year 2004-05 Ex D 92: Pass book of Bharath Overseas Bank Ltd Ex D 92(a) and 92(b): Relevant Transaction Ex D 93 : Original FAX letter dtd 18.3.2006 List of documents marked on behalf of Court:
Ex C1: Annual Accounts and Auditors report 2005-2006 of M/s.Charan Homes Pvt.Ltd., 256 256 Spl.C.C.No.232/2009 Ex C2: Cash vouchers Ex C3: Secured Loan statement extract of Mrs.Bilkhis Jahan Ex C4: Legal opinion regarding marketable title of M.M.Querashy Sd/-
XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, PREVENTION OF CORRUPTION ACT, BANGALORE URBAN DISTRICT, BANGALORE CITY.257 257
Spl.C.C.No.232/2009 Judgment pronounced in the open Court vide separate Judgment. The final order portion reads as under:
ORDER Acting under section 248(2) of the Cr.P.C, the accused No.1 is convicted for the offence defined under Section 13(1)(e) punishable under section 13(2) of the Prevention of Corruption Act, 1988.
Acting under section 248(2) of the Cr.P.C, the accused No.2 is convicted for the offence punishable under section 109 of the Indian Penal Code.
The bail bonds and surety bonds of the accused stands discharged.
(LAKSHMINARAYANA BHAT K.), XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru. 258 258 Spl.C.C.No.232/2009 Heard the learned Sri. Shankar P.Hegde, Advocate appearing on behalf of the offenders and the learned Public Prosecutor on quantum of sentence. Call on for orders on sentence by 2.45 p.m. XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
Order on sentence pronounced in the open Court vide separate Order.
The final order portion reads as under:
ORDER The offender No.1 by name Mr. Shami Ur Rehman is sentenced to undergo rigorous imprisonment for a period of four years and also to pay fine of Rs.50,00,000/- (fifty lakhs only) for the offence under Section 13(1)(e) read with Section 13(2) of The Prevention of Corruption Act 1988. In default of payment fine he shall undergo simple imprisonment for further period of six months.
259 259 Spl.C.C.No.232/2009 The offender No.2 by name Mrs. Bilkis Jahan is sentenced to undergo simple imprisonment for a period of three years and also to pay fine of Rs.50,000/- (Fifty thousand only) for the offence under Section 109 of the Indian Penal Code and in default of
payment fine, she shall undergo simple imprisonment for further period of two months.
Office is directed that the free copy of the judgment be furnished to both the offenders forthwith.
XXIII Addl.City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.