Bangalore District Court
Cbi P S vs Tholasirama on 30 December, 2024
KABC010298292017
IN THE COURT OF THE XXI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND PRINCIPAL SPECIAL
JUDGE FOR CBI CASES, BENGALURU (CCH-4)
DATED THIS THE DAY OF 30th DECEMBER, 2024.
PRESENT: SRI. SHRIDHAR GOPALAKRISHNA BHAT
XXI Addl. City Civil and Sessions Judge and
Prl. Special Judge for CBI Cases, Bengaluru.
Spl.C.C.No.187/2014
Complainant : Central Bureau of Investigation,
Anti Corruption Branch,
No.36, Bellary Road,
Ganga Nagar,
BENGALURU.
(By Senior Public Prosecutor)
Vs
Accused 1: Tholasirama
S/o Late. Bodka Naik,
Aged about 52 years,
Senior Section Supervisor,
Subscriber Fault Control,
BSNL, CTSD Outdoor,
Basaveswaranagar,
Bengaluru - 560 079,
R/at. No.91, 3rd Cross,
Telecom Layout,
K.P.Agrahara (Vijayanagar),
Bengaluru- 560 023
2: Smt. H.Sharada,
W/o. Tholasirama,
D/o. Late Hanuma Naik,
Aged about 42 years,
2 Spl.CC.187/2014
R/at. No.91, 3rd Cross,
Telecom Layout,
K.P.Agrahara (Vijayanagar),
Bengaluru-560 023.
(By Sri. Kiran S. Javali, Senior Counsel)
(By Sri. Chandrashekhara K, Advocate)
***
Date of commission of From 01.10.1998 to
offence 02.02.2012
Date of report of offence 31.01.2012
Date of arrest of accused 18.06.2014
Nos.1 & 2
Date of release of accused 18.06.2014
Nos.1 and 2 on bail
Total period of custody --
Name of the complainant Source Information
Date of commencement of 08.12.2014
recording evidence
Date of closing of evidence 16.12.2019
Offences complained of Under Section 13(2) r/w
13(1)(e) of Prevention of
Corruption Act, 1988 and
under Section 109 of the
Indian Penal Code.
Opinion of the Judge As per the final order.
JUDGMENT
The Deputy Superintendent of Police, Central Bureau of Investigation ('CBI' in short), Anti Corruption Branch (ACB in short), Bengaluru, has filed charge-sheet against the accused No.1 for the offence under Section 13(1)(e) punishable under Section Sec.13(2) of the Prevention of Corruption Act, 1988 ('PC Act' in short.) and against accused No.2 for the abetment of the said offence punishable under Section 109 of the Indian Penal Code ('IPC' in short).
3 Spl.CC.187/2014
2. The case of the prosecution in brief is as follows;
The accused No.1 was working as a Public Servant in the capacity of Senior Section Supervisor, Customer Service Center, Bharat Sanchar Nigam Ltd., ('BSNL' in short), Bengaluru. Accused No.1, during the check period i.e., from 01.10.1998 to 02.02.2012 acquired assets and pecuniary resources in his name and in the name of his family members, disproportion to his known source of income by corrupt or illegal means and by abusing his official position. The assets of the accused No.1 at the beginning of the check period was Rs.17,79,965/- and the assets at the end of the check period was Rs.2,51,83,833/-. The income of the accused during the check period was Rs.83,03,061/- and expenditure during the check period was Rs.54,47,661/-. The accused No.1 was found in possession of the property disproportionate to his known source of income to the extent of 303.3% of his income, for which, he could not give satisfactory accounts. The accused No.2 being his wife, during the check period, abetted the accused No.1 to acquire the assets by corrupt or illegal means and by abusing his official position by purchasing immovable property in her name as benami of her husband out of his ill-gotten income and thereby accused Nos.1 and 2 have committed the offence under Section 13(1)(e) punishable under Section 13(2) of the PC Act and under Section 109 of the IPC.
4 Spl.CC.187/2014
3. On the basis of the Source Information, CW.76 Sri.R.Hithendra, the then DIG and Head of the Branch, CBI/ACB/Bengaluru has registered the case against the accused persons in Cr.No.RC1(A)/2012 on 31.01.2012 for the offences under Section 109 of the IPC and Section 13(2) R/w. Section 13(1)(e) of the PC Act as per Ex.P.255. Thereafter, passed an order dated 31.01.2012 as per Ex.P.256 appointing and authorizing CW.77 Sri.T.P.Ananda Krishna, the Inspector of Police, CBI/ACB Bengaluru, to conduct the investigation. Thereafter, CW.76 has conducted the investigation and after completion of the investigation and on securing the prosecution sanction against accused No.1, filed the present charge sheet against the accused persons for the offence punishable under Section 13(1)(e) R/w. Sec.13(2) of the PC Act, 1988 and Section 109 of the IPC.
4. After taking cognizance of the offence, summons was issued to the accused Nos.1 and 2. In response to the process of summons, the accused have appeared before the Court and enlarged on bail. They were provided with copy of the charge sheet and its enclosures as required under Section 207 of the Cr.P.C., On hearing the prosecution as well as the accused before framing charge, this court was pleased to reject the oral contention of the accused for discharge, as found sufficient materials to frame the charge against the accused persons for the offence punishable under Section 13(1)(e) R/w. Section 13(2) of the PC Act and under Section 109 of the IPC. Accordingly, charge was 5 Spl.CC.187/2014 framed. The accused pleaded not guilty and claimed to be tried.
5. Prosecution side evidence:
In order to bring home the guilt of the accused, the prosecution has shown in all 77 witnesses as CW.1 to CW.77 and examined 70 witnesses before this Court as prosecution witnesses (PWs) except CW.4, 11, 27, 34, 61, 74 and 76. The prosecution has got marked 271 documents as per Ex.P.1 to P.271. The prosecution evidence in gist is described as under;
Prosec Charge Person examined Evidence regarding Exhibits ution Sheet marked.
Witnes witne-
s No. ss No.
PW.1 CW.6 Sri. P.Bhaskaran Valuation of four Ex.P1,
Valuation Officer immovable properties P1(a)
and Executive involved in this case. Ex.D.1 to
Engineer, Income D.4
Tax Department.
PW.2 CW.7 Sri. Prabhu Furnishing of account Ex.P2 to
Gowda N. Patil, opening form and Ex.P8,
Branch Manager, statement of account P2(a), 5(a) Karnataka State relating to SB Accounts 8(a) Co-operative Apex of accused Nos.1 and 2. Bank Ltd., PW.3 CW.5 Sri. L. Gopi Agreement of Sale and Ex.P9 to Sale Deed executed by Ex.P11, his wife in favour of 9(a) to (c), accused No.2 in respect 10(a) to (c) of Plot No.30 measuring (e), 11(a) 15 feet x 45 feet at Vijayanagara, Subbanna Garden.
PW.4 CW.8 Sri. Hombalaiah, Production of documents Ex.P.12 to
Retd. Sub- and regarding payment P.24
Registrar of stamp duty and P.12(a),
registration fee. 14(a) to
18(a),
21(a) to
24(a)
6 Spl.CC.187/2014
PW.5 CW.9 Sri. C.V. Formation of Layout and Ex.P25 to
Manjunatha, Retd. allotment of site P34, 32(a)
Chief General measuring 30 x 40 in to 32(k)
Manager, Telecom favour of accused No.1 33(a) BSNL situated at Vijayanagara, Kempapura Agrahara Layout, for Rs.2,10,000/-
and mode of payment, stamp duty and share amount.
PW.6 CW.10 Smt. Jyothi Sale Agreement and Sale Ex.P35, Balakrishna Deed executed in favour 35(a) and of accused No.2 and sale 36, consideration paid in respect of site No.104 measuring 30 x 40 feet PW.7 CW.1 Sri. V.S.Goudar, Furnishing of Service Ex.P37 to Dy. Gen.Manager, Book and Personal File Ex.P39, Vigilance, BSNL, relating to accused No.1 P.37(a).
Bengaluru. to IO.
PW.8 CW.12 Smt. L. Sale Agreement in Ex.P9(b)
Savithramma, respect of Plot No.30
PW.9 CW.2 Smt. Vedavathi, Submission of Ex.P40 to
Accounts Officer- documents relating to 51 and
GPF/ Medical, pay, bonus, GPF details, P.167,
BSNL, Bengaluru. arrears of payment and P.40(a) to other payments received 43(a) by accused No.1.
PW.10 CW.3 Sri. Arup Jyothi Search of the house of Ex.P52 to
Barthakur, accused No.1 and P.62.
Manager Credit seizing of documents and P.52(a),
Section Vijaya cash and inventories of 62(a)
Bank, the articles found.
Shantinagar,
Bengaluru.
PW.11 CW.15 Sri. Shivananje Furnishing of documents Ex.P63,
Gowda, regarding membership of 63(a) and
Secretary, accused Nos.1 and 2 in 64.
Kanaka Gruha the society and amount
Nirmana paid by accused No.2,
Sahakara Sangha Allotment of site No.17 Nigama, measuring 30 x 40 in Bengaluru. Sy.No.6 of Subramanyapura Village, Uttarahalli Road, Bengaluru South .
PW.12 CW.1 Sri.Samrat Furnishing of documents Ex.P65 to Ashokan, as to purchase of Maruti P.69, 65(a) Dy. General Zen Estillo by accused to 68(a) Manager, Sales, No.1 and also insurance 7 Spl.CC.187/2014 Mandovi Motors amount paid.
Pvt. Ltd., PW.13 CW.16 Sri. N Mohan, Ex- Furnishing of documents Ex.P.70 to commercial regarding Purchase of 74, 70(a) to Manager, Khivraj Bajaj Avenger Motor 74(a) Motors, Bengaluru Cycle by T. Sanjay, son of A.1, its cost etc., PW.14 CW.17 Sri.Govardhan Furnishing of the Ex.P75 to Bhat - Ex. documents relating to 78, 75(a) Accounts Officer, purchase of Honda Planet Honda, Activa by A.1 and his son Bengaluru T. Sanjay, cost etc., paid PW.15 CW.18 Sri.Sandeep Furnishing of Account Ex.P79 to Gowda, Br. opening Form and 82, 79(a) Manager, statement of account P82(a) Karnataka Bank relating to the account of Ltd., Magadi accused No.1 and his son T. Sanjay PW.16 CW.19 Sri. Ramesh R. Furnishing of account Ex.P83 to Pulake- opening form and 97, 83(a), Concurrent statement of account 84(a), Auditor State pertaining to Accused 86(a), Bank of No.2 and her son Sri. T. 87(a), Hyderabad, J.C Sanjay, Balance 89(a), Road, B'luru available, housing loan 90(a), availed by accused No.2 94(a), 95(a) PW.17 CW.22 Sri. Jitendra D.J - Production of document Ex.P98 to Regional Head, relating to Car Loan 100 and Sales, ICICI Bank Account of A.1. 100(a) PW.18 CW.23 Sri. Production of documents Ex.P101 to Subramanyam, regarding LIC Policies of 105, Then Sr. Br. accused No.1 104(a), Manager, LIC, 105(a) Residency Road Br, Mysore.
PW.19 CW.25 Sri. B.H Banerji, Rent agreement and Ex.P10, brother of accused Payment of rent to D.10 to No.2. accused No.2. D.22 PW.20 CW.14 Sri. Shashikiran N, Production of Certified Ex.P106, SDA, Sub- copy of the sale deed, 107, 107(a) Registrar Office, EC pertaining to the Kengeri. property of A.2 PW.21 CW.26 Sri. Amar Magaji His tenancy in the Ex.P.108 premises of A.2, situated at 2nd floor Vijayanagara and payment of Rent and advance 8 Spl.CC.187/2014 PW.22 CW.28 Sri. R. Bhaskar His tenancy in the Ex.P109, premises of A.2 situated 109(a) and at Ground floor No.13, (b) 2nd Cross, Subbanna Garden, behind BTS Garage Vijayanagara and payment of rent and advance.
PW.23 CW.29 Sri. G. Kumara His tenancy in the Ex.P110, Naik - Checking premises of A.2 situated 110(a),(b) Inspector BTS, at No.30, 2nd Cross, 1st Bengaluru. floor, Subbanna Garden, behind BTS Garage Vijayanagara, Bengaluru.
And payment of Rent and advance PW.24 CW.30 Sri. Raghavendra His tenancy in the J.G premises of A.2 situated at No.30, 2nd Cross, 2nd -
floor, Subbanna Garden,
behind BTS Garage
Vijayanagara, Bengaluru.
PW.25 CW.33 Sri. Jayakara His tenancy in the
Shetty premises of accused
No.2 situated at No.31,
1st Floor, 2nd Cross, -
Subbanna Garden,
behind BTS Garage
Vijayanagara, Bengaluru
and payment of rent and
advance.
PW.26 CW.35 Sri. B.V Kumar, Production of IT returns Ex.P111, to Income Tax submitted by accused 115 Officer No.2.
PW.27 CW.36 Sri. B.S Krishna Preparing of statement of Ex.P116 to Murthy, Tax account and Income Tax P122, Practitioner Returns, submission to IT P122(a), Department and Ex.D.5 to 9 producing income tax verification returns form to CBI relating to accused No.2 PW.28 CW.22 Sri. Somasekar His tenancy under Raju, Regional accused No.2 situated at Sales Manager, Ground Floor of 31, 2nd Shaki Bhog Foods Cross, Kumara Garden, Ltd. Vijayanagara, Bengaluru-
40 and payment and rent and security deposit.
9 Spl.CC.187/2014 PW.29 CW.37 Sri. C. Srinisalu - Production of income tax Ex.P.123 to Income Tax returns of A.1 126 and Officer, Ward 126(a) No.1(3), Hubballi PW.30 CW.38 Smt. Sudha Non submission of Ex.P.127 Ranganath, returns by T. Sanjay till and 127(a) Income Tax 2012 Officer, PW.31 CW.31 Sri. D. Prabhakar His tenancy under Ex.P128, accused No.2 in respect 128(a).
of 3rd floor of the
premises. Bearing No.30,
2nd Cross, Subbanna
Garden Vijayanagara,
Bengaluru-40, payment
of rent and security
deposit.
PW.32 CW.39 Sri.Sheshadri.N, Production of copy of the Ex.P.129 to Retired Sr. Br. Policy bond of accused 135, 135(a) Manager, LIC of No.2 and her son T. India Sanjay and payment of premium PW.33 CW.40 Sri. V. Production of Policy Ex.P.136 to Chandrashekar, documents of accused 138 Assistant Br. No.1 and payment of Supervisor Bajaj premium.
Allianz Life
Insurance.
PW.34 CW.41 Sri. S.P. Harish, Production of policy Ex.P.139 to
Then Manager document pertaining to T. 143 and
Reliance Life Sanjay and premium 139(a),
Insurance paid. 140(a)
Company
PW.35 CW.42 Sri. M.T. Production of documents Ex.P.144 to
Manchaiah, Retd. pertaining to vehicles in 164.
ARTO the name of Sanjay.T and
accused No.1, tax
registration and smart
card paid.
PW.36 CW.43 Sri. Anantha Production of the Car Ex.P.165,
Chandran, policy details of accused 166 and
Divisional No.1 and premium paid. 166(a)
Manager, National
Insurance
Company
PW.37 CW.44 Sri. Prabhakara S. Production of Policy Ex.P.168 to
Bapat, Head of the details of accused No.1 172 and
Operation, Royal, and premium paid. 168(a).
Sundaram Allianz
Insurance Co. Ltd.
10 Spl.CC.187/2014
PW.38 CW.45 Sri. A.N Kumara Production of Policy Ex.P.173 to
Swamy, Retd. Sr. details of two Wheeler in 175, 173(a) Divisional the name of accused Manager, Oriental No.1 and fire policy and Insurance premium paid Company PW.39 CW.36 Sri. B. Nagaraja, Furnishing of policy Ex.176 to Then Br. Manager, details of Honda Activa 179 and United India two wheeler standing in 176(a) Insurance the name of accused Company. No.1 and payment of premium PW.40 CW.49 Sri. M. Production of documents Ex.P.180 to Chandrasekhar, pertaining to membership 182 and the then Joint of accused No.1 in 180(a) Secretary, Regency Institute of Regency Institute Sports and Culture A.D of Sports and Halli, Bengaluru and culture payment of membership fee by accused No.1.
PW.41 CW.48 Sri. Mukunda Payment of Donation by Ex.P.183,
Naik. K, Honorary accused No.1 to 184 and
President, Devasthanam 183(a)
Mahishamardhini
Gadduge
Ammanavara
Devasthana,
Chamsaru,
Brahmavara,
Udupi
PW.42 CW.50 Sri. Anjanappa, Payment of fee by Sri. Ex.P.185,
Superintendent of Sanjay, son of accused 186 and
Bengaluru Nos.1 and 2, studying in 185(a)
Institute of that Institution
Technology, K.R.
Road, Bengaluru.
PW.43 CW.51 Sri. Rajendra Production of document Ex.P.187 to
Prasad - A/c pertaining to payment of 189 and
Officer, Allianz Tuition fee by Sri. Sanjay. Ex.P.187(a
Business T )
Academy,
Bengaluru
PW.44 CW.53 Sri. M.S Furnishing of documents Ex.P.190,
Raghunandan the and payment of fee by 191 and
then Showroom Sri. T. Sanjay, for 190(a)
Manager, studying music in
Reynolds INC., Reynolds INC and fees
Bengaluru. paid.
11 Spl.CC.187/2014
PW.45 CW.52 Sri. Mohan Kumar. Production of documents Ex.P.192 T, the Then Admin with regard to study Manager, Gowri course of Sri. Indrajeet T, Educational Trust, son of accused persons Chamarajpet, and payment of fee.
Bengaluru PW.46 CW.54 Sri. P. Anjaneyalu, Payment of property tax Ex.P.193 Tax Inspector by accused No.1 and 2 and for the period from 2008 P.193(a) to 2013 PW.47 CW.55 Sri. M.R. Furnishing information Ex.P.194 Byregowda, Then regarding payment of and 194(a) Asst. Revenue property tax in respect of Officer, BBMP, the property PID 35-36- Govindraraja 30-N and PID No.35-36-
Nagara, 31, situated at Subbanna
Bengaluru Garden,2nd Cross,
Marenahalli, Ward
No.136, Bengaluru by
accused Nos.1 and 2.
PW.48 CW.56 Sri. Basavanna, Furnishing of R.R. Ex.P.195 to
Then Asst. Numbers in the name of 200, 195(a)
Executive accused Nos.1 and A.2 to 199(a)
Engineer, and payment of
(Electrical) development charges
BESCOM and electricity
consumption charges.
PW.49 CW.57 Smt. Furnishing of details of Ex.P.201 to
Subbalakshmi RR Numbers in the name 207,
Then Asst. of accused No.2, deposit 201(a),
Accounts Officer, of Development charges 206(a), BESCOM, and consumption 207(a) Vijayanagar, charges.
Bengaluru PW.50 CW.58 Sri. Mohammed Furnishing of the Ex.P.208 to Javed Rabbani, documents regarding P.210, then Deputy Chief approval of drawing and 208(a) to Electrical amount paid in that 210(a) Inspector, regard.
Bangalore North PW.51 CW.59 Sri. H.P. Gopala Furnishing of documents Ex.P211 to Gowda then Asst. regarding payment of P216, Executive water charges, P211(a) Engineer, development charges to BWSSB. BWSSB by accused No.1 and accused No.2.
PW.52 CW.60 Sri. Sundara Availment of hand loan Ex.P.217
Murthy, Senior from accused No.1
Section
Supervisor,
12 Spl.CC.187/2014
Customer Service
Center, BSNL.
PW.53 CW.47 Sri. Pedda Furnishing of document Ex.P.218,
Manjunath, Senior towards donation paid by 219, and Telegraph Master, accused No.1 to SC/ST 218(a) Customer Service Employees Welfare Center. Association of BSNL, Bengaluru Telecom District.
PW.54 CW.62 Sri. Krishnaiah, Availment of Rs.5,000/- Ex.P.220, Regular Mazdoor, loan from accused No.1 220(a) and BSNL, Bangalore and issuance of cheque P.221.
in that regard and repayment of the said amount.
PW.55 CW.64 Sri. Anil Kumar Availment of the Ex.P.223
Lakshman Rs.5,000/- hand loan
Gothekar, Chief from accused No.1 and
Section issuance of blank cheque
Supervisor, BSNL. in favour of accused No.1.
PW.56 CW.65 Sri. Umesh. K, Production of document Ex.P.224 Senior Personal relating to fee paid by Mr. and 224(a) Trainer, Snap Indrajeeth Tulasiram.
Fitness,
A & A Fitness
Training Center,
Vijayanagar,
Bangalore.
PW.57 CW.66 Sri. Subrat Kumar Furnishing of Statement Ex.P.225,
Mahopathra, Chief of Account relating to 226, 227,
Manager, Vijaya Current Account Number 225(a) to
Bank, pertaining into SP (c), 226(a)
Ganganagar CBI/ACB, Bangalore. and (b)
Branch,
Bangalore.
PW.58 CW.67 Sri. M. Nagendra Preparing of the plan of Naidu, Registered the building, estimation of Pvt. Engineer, the work and valuation -
report, regarding property No.91.
PW.59 CW.69 Sri. Lakshmi Lease and Tenancy of
Narasimhaiah, the accused No.1 and 2
Stenographer, under him and payment
Prosecution of Lease amount, -
Department. security deposit by them
and return of security
deposit by deducting the
painting charge.
13 Spl.CC.187/2014
PW.60 CW.71 K.M. Vishwanath, Production of the Ex.P.228 to
Branch Manager accounts opening form P.231, Pragathi Krishna and account statement 230(a) (b) Gramina Bank, relating to account of 231(a) (b), Harappanahalli, Pampa Naik (PW.70) PW.61 CW.72 Sri. T.S. Furnishing of account Ex.P.233 to Umapathy, Branch opening form statement P.234, Manager, of account pertaining to 233(a), Corporation Bank, the account of Sri. B. 234(a), (b).
Davanagere Pampa Naik.
Branch.
PW.62 CW.70 Sri. A. House search of accused Ex.P.52(b),
Inbazhagan, No.1 P.62(b) and
Inspector of 62(c)P.235,
Police, CBI,
PW.63 CW.24 Smt. Anitha Her tenancy under
Padam Kothari, accused No.1 in respect Homeopathic of the property at Ground Doctor. floor door No.91, -
Telecom Layout,
Vijayanagar and payment
of rent and security
deposit and repayment of
security deposit
PW.64 CW.63 Sri. M. Taking of hand loan of Ex.P.236,
Purushothaman, Rs.10,000/- during 2011 237, Senior Section from accused No.1 and 236(a), Supervisor, City issuance of two cheques 237(a) Railway Station, in favour of accused Telecom Sector, No.1.
Bangalore.
PW.65 CW.73 Sri. Gawli Preparing of profit and Ex.P.238 to Basavaraju, loss account balance P.240, Auditor and Tax sheet, ledger account for Ex.D.25 to Consultant. sale of agriculture 27 proceeds from 01.04.2000 to 31.12.2011 pertaining to Pampa Naik (PW.70).
PW.66 CW.21 Sri. B.M. Production of document Ex.P.241 to Sudhakar, Asst. in respect of availing of P.248, Chief Manager, Housing loan by accused P.241(a), Canfin Homes , Nos.1 and 2 and its 248(a) Vijayanagar disbursement on Branch, 04.11.2003 and Bangalore. 03.12.2003 in favour of accused No.1 and repayment of the housing loan with accrued interest.
14 Spl.CC.187/2014
PW.67 CW.75 Sri. D. Issuance of Sanction P.249 to
Channabasappa, Order to prosecute the 252, and
DGM, BSNL, accused No.1. 249(a) to
Vijayanagar, 251(a),
Bangalore. Ex.D.28 to
D.30
PW.68 CW.68 Sri. T. Sanjay, Furnishing of explanation Ex.P.253,
to IO by accused No.2 P254,
and by himself. P253(a),
(b), 254(a).
D.31 to
D.34.
PW.69 CW.77 Sri. T.P. Registration of FIR, Ex.P.255,
Anandakrishnan search and seizure in the 256,
house of the accused 255(a),
No.1, entire investigation 256(a), and filing of the charge P.52(c), sheet. P.62(d), P.257 to P.262, P.265 to P.270 PW.70 CW.20 Sri. B. Pampa Paternal Family of Ex.P.271 Naik accused No.2, Education (a) to (h) and occupation of accused No.2, Property owned by his family, selling of 4 acres of land in favour of P. Shivappa etc.,
6. After prosecution side evidence, the statement of the accused was recorded as provided under Section 313 of the Cr.P.C. The accused have denied the incriminating circumstances found in the evidence of the prosecution witnesses against them. In addition to that, they have filed written statement under Section 313(5) of the Cr.P.C.,
7. Defence Evidence:
In this case, the accused Nos.1 and 2 have not opted to place any evidence on their behalf. However, 15 Spl.CC.187/2014 they got marked 34 documents as per Ex.D.1 to D.34 during cross-examination of the prosecution witnesses.
8. Arguments:
Heard the arguments of Smt. K.S.Hema, the learned Senior Public Prosecutor for CBI and Sri. Kiran S. Javali, the learned Senior Counsel and also the learned counsel Sri.Chandrashekar K for the accused.
9. In addition to the oral arguments, the learned Sr. Public Prosecutor has filed written memorandum of argument and so also, the learned counsel for the accused has filed written arguments.
10. The learned Senior Public Prosecutor has relied upon following citations in support of her arguments.
i. Bharat Sanchar Nigam Ltd., Vs. A. Thirumal Raj disposed of on 14.02.2022 on the file of High Court of Judicature for the State of Telangana in WP No.9450/2019.
ii. State of Maharashtra Vs. Wasudeo Ramachandra Kaidalwar (1981) 3 SCC 199 iii. P. Nallammal Vs. State, represented by Inspector of Police, disposed on 09.08.1999 by the Hon'ble Apex Court.
iv. Order dated 19.02.2018 passed by the Central Administrative Tribunal, Cuttak Bench, Cuttak in O.A.No.740/2013 (Suresh Chandra Nayak Vs. Chairman cum Managing Director, Bharat Sanchar Nigam Ltd., and others.
v. Rajendra Agricultural University Vs. Ashok Kumar Prasad and Others AIR 2010, SC 259.
16 Spl.CC.187/2014 The learned Senior Public Prosecutor has also produced the copies of the Gazette Publication of the Resolution dated 23.01.2000, letter dated 10.10.2006, issued by D.D.G. (WS & I Section) BSNL and Articles of Association of BSNL, Chapter II of the Bureau of Public Enterprises Guidelines.
11. Per contra, the learned counsel for the accused has relied upon the following judgments in support of his arguments ;
i. (2016) 12 SCC 87 Devendra Singh and Others Vs. State of Punjab through CBI.
ii. (2005) 8 SCC 370 State of Karnataka through CBI Vs. Nagarajaswamy.
iii. Judgment dated 01.03.2012 passed by our Hon'ble High Court in Crl.A.No.933 C/w 835/2010.
iv. Order dated 03.11.2015 passed in Crl.A.Nos.1872-1873/2014 on the file of Hon'ble Supreme Court.
v. Unreported Judgment dated 24.11.2023, passed in Crl.A.No.322/2012 on the file of our Hon'ble High Court of Karnataka, at Bengaluru.
vi. Order dated 02.02.2022 passed in W.P.No.6659/2011 (GM-RES) on the file of Hon'ble High Court of Karnataka, Bengaluru.
vii.1997(7) SCC 622 Mansukhlal Vithaldas Chauhan Vs. State of Gujarat viii.1979(1) SCC 535 S.P.Bhatnagar Vs. State of Maharashtra ix. 1977(1) SCC 816 Krishnanand Agnihothri Vs. State of Madhya Pradesh.
17 Spl.CC.187/2014 x. 1992(4) SCC 45 M. Krishna Reddy Vs. State Deputy Superintendent of Police, Hyderabad.
xi. 2015(14) SCC 505 Kedari Lal Vs. State of Madhya Pradesh and Others.
xii.1993 SCC Online Gau 52: 1994 Cri.L.J.12 Ananda Bezbaruah Vs. Union of India.
xiii.2017(6) SCC 628 State of AP Vs.
Satyanarayana.
xiv.2006(1) SCC 420 DSP Chennai Vs. K. Inbasagaran xv.2017(14) SCC 442 Vasant Rao Guhe Vs. State of Madhya Pradesh xvi.2000 SCC Online MP 423 Subhash Kharate Vs. State of MP.
12. On hearing the arguments, bestowing careful thought to the arguments canvassed, rulings relied and carefully scrutinizing oral and documentary evidence produced before this Court, the point that would arise for consideration are;
1. Whether the prosecution has secured the valid sanction to prosecute the accused No.1 for the offence punishable under Section 13(1)(e) R/w. Sec.13(2) of the PC Act ?
2. Whether the prosecution proves beyond reasonable doubt that the accused No.1, being the public servant during the check period commencing from 01.10.1998 to 02.02.2012 was found in possession 18 Spl.CC.187/2014 of the property of worth Rs.2,51,83,833/- i.e., 303.3% disproportionate to his known source of income, for which he could not satisfactorily account and thereby committed the offence under Section 13(1)(e) punishable under Section R/w. Sec.13(2) of PC Act?
3. Whether the prosecution further proves beyond all reasonable doubt that during the said check period, the accused No.2, being the wife of accused No.1, abetted him to acquire assets by corrupt or illegal means, by abusing his official position to the tune of Rs.2,51,83,833/- by purchasing immovable properties in her name as benami purchaser for him, out of his ill-gotten income and thereby committed the offence punishable under Section 109 of the IPC ?
4. What order ?
13. The above points are answered as under;
Point No.1 : In the affirmative.
Point No.2 : In the affirmative to the extent of Rs.2,38,94,274/-
i.e., 282.79%.
Point No.3 : In the affirmative.
19 Spl.CC.187/2014 Point No.4 : As per the final order for the following;
REASONS
14. Point No.1 : It is not in dispute that as on the date of registering the case and subsequent to it, the accused No.1 Sri.Tholasiram, was working as Senior Section Supervisor, Customer Service Center, BSNL, Bengaluru and thereby he was the public servant as defined under Section 2(c) of the PC Act. The Service Book and the personal file relating to accused No.1 is produced before this court as per Ex.P.38 and P.39. Ex.P.38 reveals service of accused No.1 in BSNL as on the date of registration of the case and also on the date of filing of the charge sheet. It is clear that the accused No.1 joined service on 15.07.1981 in Telegraphic Department as a Temporary Telegraphic Assistant and thereafter he was absorbed in the BSNL after establishment of the BSNL. The Service Book contains the document regarding permanent absorption of the accused No.1 in BSNL. It is noticed that by order No.27-1/Karnataka/Bangalore/ 5248/2001 dated 24.01.2002, the accused No.1 was ordered to be absorbed in BSNL w.e.f. 01.10.2000. Therefore, it is clear that accused No.1 was the permanent employee of the BSNL and thereby he was a public servant. There is no dispute in that regard.
15. The Learned Sr. Public Prosecutor, relying on the evidence of PW.67 and Ex.P249 sanction order and P.252 attested copy of the schedule of appointing Disciplinary, Appellate and Reviewing Authority in BSNL 20 Spl.CC.187/2014 for non-executives, vehemently argued that the accused No.1 comes under the Group-C category of the BSNL and PW.67, being the Deputy General Manager ('DGM' for short) of BSNL is the competent person to grant the prosecution sanction order against the accused No.1 and his evidence clearly depicts as to due application of mind on the documents and materials placed before him before granting sanction. It is also submitted by her that just because a draft model sanction order was furnished, that does not mean that the sanctioning authority (PW.67) has not applied his mind. Hence, the evidence of PW.67 and Ex.P.249 clearly establish the valid sanction to prosecute the accused No.1 for the offence punishable under Section 13(1)(e) R/w. Sec.13(2) of PC Act.
16. Per contra, the sum and substance of the argument of the learned Senior Counsel Sri.K.S.Javali, for the accused in this regard is that, the sanction order produced as per Ex.P.249 is bad in law and PW.67 had no authority to grant the sanction as he was not the competent authority to remove the accused No.1 from his duty. There are Chairman and Managing Directors of the Company and the 'Competent Authority' is the authority, empowered by the Board of Directors by general or special rule or order to discharge the function or use the powers specified in the schedule to the rules. The Board should have given sanction or authorized the person who gave the sanction. PW.67 was not authorized by the Board of Directors to grant the sanction and hence he had no authority to grant the sanction to prosecute 21 Spl.CC.187/2014 accused No.1. Further, PW.67 has not applied his mind while granting the sanction. Mechanically and casually he had issued the sanction order based on the draft model sanction order furnished by the investigation agency. In this regard, he has drawn notice of this court to Ex.D.29 file, wherein, Draft Model Sanction Order is found and contended that the order passed by the Sanctioning Authority as per Ex.P.249 is nothing but replica of draft model sanction order furnished by CBI. In this regard, he has also drawn notice of this court on the evidence of PW.67, the Sanctioning Authority, contending that his evidence reveals that he was not even aware as to whether the accused No.1 was absorbed in BSNL or not and he has not seen the absorption order. Further, in Ex.D.29 and D.30 file, as admitted by PW.67 himself, there is no investigation records said to have been forwarded by CBI and hence PW.67 has not applied his mind and only signed the draft order sent by CBI and thereby the sanction order issued by him is without application of mind on investigation materials.
17. The Learned Senior Counsel further vehemently argued that admittedly, the accused No.1 joined the service in the year 1981 and the check period stated in the charge sheet starts from 01.10.1998 to till 02.02.2012. Hence the check period includes the working period of accused No.1 prior to his absorption in BSNL and also the period prior to the coming into force of BSNL Conduct, Discipline and Appeal Rules, 2006 ('CDA Rules' for short), which is stated to be came into force from 22 Spl.CC.187/2014 10.10.2006. Therefore, the check period has to be considered in three stages. First one is in between 01.10.1998 to 01.10.2000, on which the accused No.1 was absorbed in BSNL. The second stage from 01.10.2000 to 10.10.2006, during which there was a vacuum as BSNL CDA Rules came into force only from 10.10.2006. The third stage is from 10.10.2006 to 02.02.2012. During the first period, the accused No.1 was the Central Government Employee, in Telegraphic Department, for the second period, there was no sanctioning authority, as no rule was passed and there was a vacuum in that regard. The third period from 10.10.2006 to 02.12.2012 is concerned, the BSNL CDA Rules, 2006 prescribed the sanctioning authority. Since BSNL CDA Rules came into force w.e.f. 10.10.2006, PW.67 had no authority to grant prosecution sanction for the entire period commencing from 01.10.1998 to 02.02.2012. He cannot give retrospective effect to the Rule of 2006 w.e.f. 01.10.1998. At the most, PW.67 could have given sanction only to the period from 10.10.2006 to 02.02.2012 that too under the authorization of the Board and not with regard to the earlier period. The IO should have taken sanction from the Telecom Department for the first period and for the second period is concerned, since there was nobody to grant the sanction as there was no rules, the IO could have taken sanction from Managing Director of BSNL for the said period. Therefore, the sanction order issued by PW.67 is without authority.
23 Spl.CC.187/2014
18. The learned senior counsel further meticulously argued that for having given separate definition for 'Competent Authority' and for 'Disciplinary Authority' in the CDA Rules, the sanction should have been given by the 'Competent Authority' and not by the 'Disciplinary Authority'. It is further argued that the BSNL has not come into existence in pursuance of any Statute and it is only the Central Government established Public Sector Company and the CDA Rules are not supported with the Statute. Further, the BSNL CDA Rules, 2006 were not published in the official Gazette and as such, the said Rules have no legal sanctity and the sanction granted by PW.67 on the basis of the said Rules also has no legal sanctity and as such sanction cannot be acted upon. Since the Resolution dated 23.01.2000 under which BSNL was formed was published in the official Gazette, the subsequent rules also required to be Gazetted. In this regard, he has also referred the decision of our Hon'ble High Court in Crl.A.No.933 c/w. 835/2010, which is confirmed by the Apex Court in Crl.A.Nos.1872-1873/2014 and the decision of our Hon'ble High Court in Crl.A.No.322/2012 and W.P.No.6659/2011. It is also argued by him that the validity of the sanction order could be raised at any stage of the proceedings even after taking of cognizance including the appellate stage. In that regard, he has relied upon the decision of the Hon'ble Apex Court, reported in (2016) 12 SCC 87 and (2005) 8 SCC 370. Since the very sanction order itself was without authority 24 Spl.CC.187/2014 and bad in law, the prosecution against the accused will not survive.
19. The learned Senior Public Prosecutor, while addressing the reply argument, vehemently argued that BSNL is not formed under any Statute, there is neither parent Statute or any subordinate Legislation. The BSNL is formed as per Memorandum of Understanding entered into between the President of India and BSNL and it is Public Sector Undertaking. The Public Sector Undertaking Companies have to follow the guidelines promulgated by the Department/Bureau of Public Enterprises. Even, as per the Government of India, Allocation of Business Rules 1961, the President of India delegates his power to formulate the general policies for Public Sector Undertaking and under the general policy, the formation of the Rules is permissible and accordingly, Bureau of Public Enterprises formulate the guidelines for making CDA Rules. The BSNL CDA Rules are formed as per the guidelines of Bureau of Public Enterprises. The activity of the BSNL is regulated as per the terms of its Articles of Association. Neither the Articles of Association nor the guidelines of Bureau of Public Enterprises prescribed the publication of CDA Rules in the official Gazette. Therefore, the publication in the official Gazette is neither mandatory nor required. The learned Senior Public Prosecutor has also furnished the copy of the letter issued by D.D.G. (WS-I Section) of BSNL, to show the circulation of BSNL CDA Rules to all the persons concerned and the approval of the CDA Rules by the 25 Spl.CC.187/2014 Board of Directors in their 84 th meeting held on 18.09.2006. In this regard, she has also taken notice of this court on the ruling of the Hon'ble Apex Court in Rajendra Agricultural University Case contending that if the parental law is silent about the publication and if the same does not prescribe the publication of the Rules in the official Gazette as a mode of publication, then, there is no need of publication of the CDA Rules in the official Gazette. On the other hand, if the parental Act provides for publication of the Rules in the official Gazette, then the said requirement becomes mandatory. If the parental Statute is silent and the subordinate Legislation prescribes the mode of publication, which is reasonable then such mode of publication may be sufficient. There may be Subordinate Legislation which is concerned with few individuals and or confined to small local areas and in such cases, the publication or promulgation by other means is sufficient. In the present case there is no requirement of publication of the CDA Rules in the official Gazette as per the Articles of Association of the BSNL or even under guidelines of Bureau of Public Enterprises, under which BSNL CDA Rules are enacted. Therefore, the publication of the CDA Rules in the official Gazette is not necessary. The BSNL CDA Rules are circulated among the officials of the BSNL and concerned Department as per letter dated 10.10.2006, issued by D.D.G. (WS & I Section) BSNL and the said CDA Rules are applicable only to the limited persons i.e., officers/ officials of the BSNL. Further, the said CDA Rule is also approved by the Board of Directors of the BSNL.
26 Spl.CC.187/2014 Therefore, the publication of the CDA Rules in the official Gazette is neither mandatory nor necessary.
20. The learned Senior Public Prosecutor has also taken notice of this court on the order passed by the High Court of Judicature for the State of Telangana in WP No.9450 of 2009 and also the order passed by the Central Administrative Tribunal, Cuttak Bench, Cuttak contending that the BSNL CDA Rules are valid and acted upon by the Authorities. It is also argued by her that the accused No.1 has claimed all the benefits under the BSNL CDA Rules and only with regard to sanction is concerned, he is disowning the BSNL CDA Rules, which is not permissible. It is also submitted by the learned Senior Public Prosecutor that the orders passed by the Hon'ble High Court of Karnataka in the relied cases referred by the learned counsel for the accused are based on the Parental Act i.e., Bihar Agricultural University's Act 1987, wherein, as per Section 36 of the said Act, all the statutes made under the said Act shall be published in the official Gazette and based on the said aspect, the said decisions were rendered. But, that is not so in the present case as publication of the CDA Rules is not mandatory and circulation of the CDA Rule is sufficient and hence, the said decisions are not applicable to the facts of the present case.
21. The learned Senior Public Prosecutor further vehemently submitted that since the offence is continuing offence, the person who is competent to remove the official on the last date of the offence is a 27 Spl.CC.187/2014 person competent to grant the sanction. The purpose of sanction is to protect the interest of the public servant against frivolous prosecution and when the public servant is absorbed in another Department, the question of granting sanction by the previous department does not arise. Since PW.67 is the Disciplinary Authority under the BSNL CDA Rules, who is authorized to impose the major penalty, is the only competent person to grant the sanction for entire period and the sanction granted by him is valid and lawful. Further, since the BSNL CDA Rules authorizes only Disciplinary Authority specified under the said rules as found in the schedule to hold the disciplinary action, the sanction accorded by the Disciplinary Authority is valid. Since the Disciplinary Authority is empowered to grant the sanction, the granting of sanction by the competent authority does not arise and that is not prescribed under the CDA Rules. Further, since the CDA Rules are being approved by the Board of Directors, there is no need of authorization of the Board again to grant the sanction order by the Disciplinary Authority, who is entitled to pass the major penalties. Hence, the sanction accorded by the PW.67 is valid.
22. It is noticed that in this case, much argument is addressed on the issue of the sanction than any other facts. In the light of the arguments addressed, the facts of the present case are analysed, in this case, the criminal prosecution is initiated against the accused No.1 by the CBI Police for the offence punishable under 28 Spl.CC.187/2014 Section 13(1)(e) R/w. Sec.13(2) of the PC Act. Admittedly, the accused No.1 was the public servant, serving in BSNL, being a Senior Section Supervisor Customer Service, BSNL. As provided under Section 19 of the PC Act, court cannot take cognizance of the offence punishable under Section 7, 11, 13 and 15 alleged to have been committed by the public servant except with previous sanction of the concerned authority, as provided under the said provision. Hence, it is for the prosecution to show that the valid sanction to prosecute the accused No.1 is obtained as required under Section 19 of the PC Act, for the offence leveled against him. Similarly, it is incumbent for the prosecution to prove that the valid sanction has been granted by the sanctioning authority after having satisfied as to case of the prosecution as to commission of the offence. This process can be established by the prosecution by producing the original sanction order, which contains the facts constituting the offence and the grounds of satisfaction and also by adducing the evidence of the author, who had issued prosecution sanction order.
23. Before considering the facts and evidence with regard to the validity of the sanction order to prosecute the accused No.1, it is proper to refer the decision of the Apex court, reported in (2013) 8 SCC 119 in the case between State of Maharashtra Through CBI Vs. Mahesh G Jain in that regard. In the said decision, the Apex Court has held that regard;
29 Spl.CC.187/2014 "the adequacy of the material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. An order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity. When there is an order of sanction by the competent authority indicating the application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of the accused'.
In another decision of the Hon'ble Supreme Court, reported in 2014 (4) SCC 295 in the case between CBI Vs. Ashok Kumar Agarwal, the Apex Court has held that ;
"the prosecution has to satisfy the court that at the time of sending the matter for the grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case, it is not extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is also necessary for the reason that there is an obligation on the sanctioning authority to discharge
30 Spl.CC.187/2014 its duty to give or to withhold sanction only after having full knowledge of the material facts of the case. The grant of sanction is not mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and protection available to the accused against whom the sanction is sought'.
In the said decision, it is further held that;
"it is also to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious excise but a swollen and sacrosanct act which affords protection to the public servant against the frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for innocent though not a shield for the guilty. It is further held that 'consideration of the material implies application of mind. Therefore, the order of sanction must ex-facie disclose that the sanctioning authority had considered the evidence and other materials placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and authority has applied its mind on the same. If the sanction order on its fact indicates that all relevant materials i.e., FIR, disclosure statement, recovery memos, draft charge sheets and other materials on record were placed before the
31 Spl.CC.187/2014 sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the materials, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter-alia on the ground that the order suffers from the vice of total non-application of mind".
In the said decision, the Hon'ble Apex Court further held that, "there is an obligation on the Sanctioning Authority to discharge its duty to give or withhold the sanction only after having full knowledge of the material facts of the case. The prosecution must therefore send the entire relevant records to the sanctioning authority including FIR, Disclosure Statements, Statements of the witnesses, Recovery memos, Draft charge sheets and all other relevant materials. The record so sent shall also contain the material/ document if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse action. The authority itself has to do complete and conscious scrutiny of the whole record, so produced by the prosecution independently by applying its mind and taking into consideration of all relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. The power to 32 Spl.CC.187/2014 grant the sanction is to be exercised strictly keeping in the mind the public interest and protection available to the accused against whom the sanction is sought. The order of sanction should make it evident that the authority had been aware of the relevant facts/ materials and had applied its mind to all relevant materials. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law".
24. In another judgment of the Hon'ble Supreme Court, reported in (2012) 3 SCC 64 in the case of Subramanya Swamy Vs. Dr. Man Mohan Singh in para 44, it was held that "a grant or refusal of the sanction is not a quasi judicial function. What is required to be seen by the competent authority is whether the facts placed before it by investigation agency prima-facie disclose commission of the offence by a 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 sanction. If the satisfaction of the competent authority is otherwise, then, it can refuse sanction. The competent authority cannot undertake a detailed inquiry to decide whether or 33 Spl.CC.187/2014 not the allegations made against the public servant are true".
25. In another decision of the Apex Court, in the matter of State of Karnataka Vs. Amir Jaan reported in (2007) 11 SCC 273, it was held that; 'the sanction order must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority'. Further, in the decision reported in AIR 2005 SC 2790 C.S.Krishnamurthy Vs. State of Karnataka, in Spl.(Crl) No.4330/2004, the Hon'ble Supreme Court has observed that "the ratio is, sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all particulars were placed before the sanctioning authority for due application of mind. In case, the sanction speaks for itself, then satisfaction of the sanctioning authority is apparent by reading the order". In a recent unreported judgment, in Criminal Appeal No.4964/2024/@ SLP(Crl) No.16978/2024 @ D.No.928818, disposed on 03.12.2024, between Central Bureau of Investigation Vs. Jagatram, the Hon'ble Apex Court observed that, an irregularity in obtaining the sanction to prosecute the public servant under the Prevention of Corruption Act, 1988, does not justify an acquittal unless it causes prejudice to the accused.
26. Therefore, in the light of the above decisions, this Court, to examine the evidence produced by the prosecution. In this context, in order to prove the factum of valid sanction, the prosecution has relied upon the 34 Spl.CC.187/2014 evidence of PW.67, the Sanctioning Authority and Ex.P249 and P.252. Ex.P249 is the Sanction Order dated 10.04.2014, issued by PW.67. Ex.P.252 is the Schedule of Appointing Disciplinary, Appellate and Reviewing Authority in BSNL for non-executives under CDA Rules. In this regard, it is pertinent to note that the learned counsel for the accused No.1 has tendered the attested copy of the BSNL CDA Rules, 2006 during cross- examination of PW.67 and the same is marked as Ex.D.28. Further, the accused No.1 has also secured the files relating to the Sanction Order and got marked the same as per Ex.D.29 and D.30.
27. PW.67, being the author of the Sanction Order in his examination in chief, has specifically stated that he knows the accused No.1, who was serving as Senior Section Supervisor, BSNL, Magadi Road Out Door Office. The DGM is the appointing and removing authority for Senior Section Supervisor i.e., accused No.1 in this case. It is further stated by him that the CBI Investigation Officer had sent the investigation records and documents pertaining to this case to the Vigilance Department, BSNL and in turn, the Vigilance Department of BSNL forwarded the records to him for consideration. He took lot of time to verify all the records and documents forwarded to him. It is further deposed by him that he has gone through all the records and documents forwarded by the IO and came to the conclusion that there exists a prima-facie case about the disproportionate assets to the known source of income of accused No.1. After satisfying 35 Spl.CC.187/2014 himself, he accorded the sanction for prosecution of accused No.1. He has also identified the Sanction Order, letter issued by the Vigilance Department to the SP HOB of CBI, letter written by him to AGM, Vigilance and Schedule of Appointing Disciplinary Appellate and Reviewing Authority in BSNL for non-executives as per Ex.P.249 to P.252. His signature found in the Sanction Order is marked as Ex.P249(a).
28. The above evidence of the PW.67 clearly reveals that he had received investigation records and documents pertaining to this case and after going through all the records and documents forwarded to him, having satisfied as to prima-facie case against the accused No.1 for having disproportionate assets to his known source of income, accorded the sanction as per Ex.P.249. Though the learned counsel for the accused has cross-examined the said witness, nothing much was elicited from his mouth so as to disbelieve his evidence. During cross-examination, the said witness has stated that he cannot say as to the date of appointment of the accused No.1 and whether the accused No.1 had opted for absorption in BSNL and also stated that he does not have knowledge whether Ex.D.28 Rules were published in the Gazette of Government of India. Further, he has also stated that in Ex.D.29 and D.30, there is no investigation records said to have been forwarded by the CBI in the said files. He has also stated that the Vigilance sent the format of sanction order. But, only on the basis of the said evidence, it cannot be said that PW.67 has not 36 Spl.CC.187/2014 applied his mind while granting the sanction. He has specifically stated that the Vigilance Department of the BSNL, which received the investigation documents pertaining to this case, forwarded the same to him and he took lot of time to verify all the records and documents forwarded to him and prima-facie, after having satisfied himself as to disproportionate assets to the known source of income of the accused No.1, he had accorded sanction for prosecution. Even during cross-examination also he has specifically stated that after verifying the records and satisfying himself, he got typed the sanction order in his office. It is pertinent to note that, just because a model format of the sanction order had been furnished and the sanction order is in accordance with the said model order, that does not mean that PW.67 has not applied his mind at all. He has specifically denied the non- application of mind while granting sanction order. If his entire evidence, along with the contents of the sanction order is analyzed, it is clear that he had perused the documents and applied his mind and after verifying the documents furnished, he has granted the sanction as per Ex.P.249. In this regard, this court has also meticulously considered the ruling relied by the learned counsel for the accused reported in (1997) 7 SCC 622 and found that the said decision is not applicable to the facts of the present case as the evidence placed before this court reveals due application of mind by PW.67 in the matter of granting prosecution sanction.
37 Spl.CC.187/2014
29. Along with the evidence of PW.67, the provisions of BSNL CDA Rules, 2006 are analyzed, it gives the definition of Appointing Authority, Competent Authority, Disciplinary Authority, Appellate Authority etc., Admittedly, the prosecution sanction against the accused No.1 was taken from the Disciplinary Authority defined under Rule 3(7) of the BSNL CDA Rules, 2006. Now the authority of PW.67 to grant the prosecution sanction against the accused No.1 is concerned, it is appropriate to refer the schedule of Appointing, Disciplinary, Appellate and Reviewing Authority in BSNL for non-executes (Ex.P.252), it provides as to who is the Appointing, Disciplinary, Appellate and Reviewing Authority for Group-D and Group-C Employees. In the present case on hand, admittedly, accused No.1, being the Senior Section Supervisor is falling under Group-C Employees. PW.67 specifically deposed in that regard. Now, the schedule is analyzed, it is clear that DGM concerned or equivalent officer is the Appointing Authority as well as the Disciplinary Authority for major penalty and Appellate Authority for minor penalty. What are the major penalties are stated in Rule 33-B of CDA Rules, 2006, which includes removal/ dismissal of the employees. Therefore, on going through the BSNL CDA Rules, it is clear that DGM, being the Disciplinary Authority is the competent authority to appoint and remove/dismiss the Group-C Employees, whose maximum scale upto Rs.12,245/-. Hence, PW.67 being the DGM is the Appointing Authority as well as Removing Authority of accused No.1 as per the BSNL CDA Rules, 38 Spl.CC.187/2014 2006. Such being the case, he is competent to accord the sanction under Section 19(1)(c) of the PC Act to prosecute the accused No.1.
30. Therefore, on going through the evidence of PW.67 as well as the provisions of BSNL CDA Rules, there remains no doubt that as per the Rules, at the end of the check period, as on the date of registration of the case, filing of the charge sheet and as on the date of taking cognizance, PW.67 being the DGM, BSNL (Disciplinary Authority) is Competent Authority to grant the prosecution sanction as against the accused No.1. Though the learned counsel has vehemently argued by classifying the service of accused No.1 under three categories during the check period, it is pertinent to note that at the end of the check period, as on the date of registration of the case, filing of the charge sheet and as on the date of taking cognizance, it was PW.67 who was the competent authority to grant the sanction against accused No.1 being the Disciplinary Authority. It is needless to say that the granting of sanction to prosecute the public servants is a protection given to them against the frivolous and vexatious prosecution. When the accused is absorbed in BSNL permanently, the BSNL CDA Rule is applicable to him. When the accused No.1 became BSNL Employee, he has to be protected only by the concerned authority of the BSNL only as against frivolous prosecution. Just because the accused No.1 was the employee of Telegraphic Department of Central Government previously and there was a vacuum for 39 Spl.CC.187/2014 certain period i.e., between 01.10.2000 to 10.10.2006 (date of absorption of accused No.1 and date of coming into force of BSNL CDA Rules), it cannot be said that PW.67 had no authority to grant the sanction order to prosecute the accused for entire check period i.e., from 01.01.1998 to 02.02.2012.
31. Added to above aspects, even Rule 58 of the BSNL CDA Rules relating to repeal and savings makes it clear that the BSNL CDA Rules, 2006 is applicable for the previous mis-conduct committed prior to the coming into force of the BSNL CDA Rules. Further, as submitted by the learned Senior Public Prosecutor, since the offence alleged is continuing offence from the date of commencement of the check period till end of the check period, the person who is competent to remove the accused at the end of the check period is competent person to accord the sanction. As per BSNL CDA Rules, at the end of the check period, it was PW.67 being the Disciplinary Authority, competent to grant the sanction. It is also pertinent to note that just because the sanction is granted for entire check period by PW.67, who is competent to grant the sanction as per BSNL CDA Rules, no prejudice is caused to the accused. Therefore, this court did not find any grounds to accept the submission of the learned counsel for the accused that PW.67 cannot grant the sanction for the entire check period and granting of the sanction for prosecution amounts to applying the BSNL CDA Rules in the retrospectively.
40 Spl.CC.187/2014
32. The another limb of the argument of the learned counsel for the accused No.1 as to publication of the CDA Rules in the official Gazette is concerned, during the course of evidence, the prosecution has produced only Schedule portion of the CDA Rules and has not produced entire BSNL CDA Rules, 2006. However, the accused has produced entire Rule as per Ex.D.28 and the same is not revealing as to whether it is published in the Indian Gazette or not. But it is pertinent to note that, as submitted by the learned Senior Public Prosecutor, the BSNL CDA Rules is not published in the Gazette. Therefore, in the light of the argument addressed, now the question that would arise is, whether the non- publication of BSNL CDA Rules in the official Gazette makes the sanction granted by PW.67 as invalid in the eye of law.
33. With regard to the above aspect, it is pertinent to note that admittedly, the BSNL is the Public Sector Undertaking of the Central Government which is not formed under any Statute and it has no parental Statute. The act of the BSNL is governed by its Articles of Association. The learned Senior Public Prosecutor has furnished the copy of the Articles of Association of the BSNL, which does not contemplate for publication of CDA Rules in the official Gazette. It is also noticed that the BSNL CDA Rules are formed as per the guidelines of Bureau of Public Enterprises and in that regard, the copy of the Chapter II of the DPE Guidelines is also provided on behalf of the prosecution wherein, model of CDA Rules 41 Spl.CC.187/2014 is given. On going through the Articles of Association of BSNL and also the DPE guidelines provided, it is clear that there is no need of publication of BSNL CDA Rules in the official Gazette and the publication of the CDA Rules in the official Gazette is not mandatory. It is also pertinent to note that the Resolution dated 23.01.2000, entered into between The President of India, acting through Secretary to the Government of India, Ministry of Communication, Department of Telecommunication (DOT) and BSNL was published in the official Gazette dated 17.03.2001. But that does not mean that the CDA Rules is also required to be published in the official Gazette as submitted by the learned Senior Counsel for the accused in the light of the contents of Articles of Association of the BSNL.
34. This court is also being guided by the decision of the Hon'ble Apex Court in Rajendra Agricultural University Case, relied by the learned Senior Public Prosecutor. In the said decision, the Hon'ble Supreme Court has considered as to whether the Statute made under Section 36 of the Bihar Agricultural University Act, 1987, providing for a benefit to the Teaching Staff, for which assent has been given by the Chancellor can be enforced in the absence of publication in the official Gazette. In the said decision, the Hon'ble Supreme Court has held that the Statute made under Section 36 of the Bihar Agricultural University Act, 1987, requires publication in the official Gazette as Section 36 makes it mandate that all the Statutes made under this Act, shall 42 Spl.CC.187/2014 be published in the official Gazette. In the said decision, the Hon'ble Apex Court considered the Judgment passed in B.K.Srinivasan Vs. State of Karnataka (1987) 1 SCC 658, wherein, the Hon'ble Supreme Court explained the position, if the parent Act was silent about the publication in the Gazette as under;
"Where the parent Statute is silent, but the subordinate Legislation itself prescribes the manner of publication such a mode of publication may be sufficient, if reasonable. If the subordinate Legislation, does not prescribe the mode of publication or if the subordinate Legislation prescribes a plainly unreasonable mode of publication it will take effect only when it is published from the customarily recognized official channel, namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate Legislation which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient. "
35. On going through the above aspects, it is clear that in this case, as already stated, there is no parental Statute with regard to formation of BSNL and the Articles of Association of the BSNL does not provide for publication of the CDA Rules in the official Gazette. The CDA Rules are found to be circulated among the persons 43 Spl.CC.187/2014 concerned of the Department as found in the letter dated 10.10.2006 issued by ADG (WS/O&M) BSNL. Under these attending circumstances, this court is of the considered view that just because the BSNL CDA Rules are not published in the official Gazette, that will not take away its effect in any manner. The order passed by the High Court of Judicature for the State of Telangana and the Central Administrative Tribunal, Cuttak Bench relied by the learned Senior Public Prosecutor reveal that the BSNL CDA Rules is relied, valid and acted upon. Therefore, this court is of the considered view that just because the BSNL CDA Rules under which, the sanction is accorded to prosecute the accused No.1 is not published in the official Gazette will not no way affect the sanction accorded by PW.67 as per the said Rules. Therefore, the contention of the accused that the BSNL CDA Rules is not Gazetted, it has no sanctity in the eye of law and thereby PW.67 is not authorized to grant the sanction and the sanction granted by him is invalid cannot be accepted. As argued by the learned Senior Public Prosecutor, the rulings relied by the learned counsel for the accused in this regard are found to be not applicable to the facts of the present case as in the said decisions, the publication of CDA Rules in the official Gazette was mandatory in nature as per the parental Act (Rajendra Agricultural University Case). In this regard, this court is also being guided by the rulings of our Hon'ble High Court relied by the learned counsel for the accused, wherein, the sanction granted by the Sanctioning Authority was negated as CDA Rules were 44 Spl.CC.187/2014 not published in the official Gazette relying on the judgment of the Rajendra Agricultural University case and the Judgment passed in Criminal Appeal No.933 c/w. 835/2010 which is affirmed by the Hon'ble Apex Court in Criminal Appeal Nos.1872-1873/2014. The judgment passed in Crl.A.No.933 c/w. 835/2010 with regard to the validity of the sanction was based on the Rajendra Agricultural University Case. But, in the present case on hand, since the publication of CDA Rules in official Gazette is not mandatory, the rulings relied by the learned counsel for the accused do not come to their rescue and that cannot be made applicable to the present case on hand.
36. So far as another contention of the learned counsel for the accused with regard to granting of sanction by the Competent Authority is concerned, no doubt in BSNL CDA Rules, 2006, there is a separate definition as to 'Competent Authority' and 'Disciplinary Authority' as provided under Rule 3(6) and (7). But the powers of the Disciplinary Authority as mentioned in schedule is analyzed, the Disciplinary Authority is an Authority, having power to appoint and impose major penalty with regard to the Group-C employees of BSNL with maximum scale of Rs.12,225/-. The Competent Authority, as defined in the said Rule is not shown as Disciplinary Authority. Therefore, in the present case on hand, PW.67 being the Disciplinary Authority (DGM) having power to impose major penalty has granted the sanction order as against accused No.1. Therefore, the 45 Spl.CC.187/2014 argument of the learned counsel that the sanction should have been given by the Competent Authority cannot be accepted.
37. So far as the authority of the Disciplinary Authority to grant the sanction is concerned, as argued by the learned counsel for the accused, there is no need of any authorization from the Board to grant the sanction order as the CDA Rules itself confer such power on the Disciplinary Authority and the CDA Rules are being approved by the Board of Directors in their Meeting held on 18.09.2006 as found in letter dated 10.10.2006, issued by ADG (WS/O&M) BSNL. Therefore, there is no need of any separate authorization by the Board to the Disciplinary Authority to issue sanction order. Hence, this court did not find substance in the submission that the Sanctioning Authority should have been authorized by the Board to grant the prosecution sanction.
38. Therefore, this court is of the considered view that PW.67, being the Disciplinary Authority for accused No.1 granted the prosecution sanction against accused No.1 after verifying the materials made available to him. There are no such grounds to hold that PW.67 has not applied his mind while granting sanction as per Ex.P.249 and he had no authority to grant the sanction order against accused No.1. On the other hand, the sanction order reveals that the Authority i.e., PW.67 had been aware of the relevant facts/ materials relating to the present case, applied his mind to all the relevant 46 Spl.CC.187/2014 materials and accordingly granted the prosecution sanction as against the accused No.1.
39. No doubt, as argued by the learned counsel for the accused, relying on the judgments of the Hon'ble Supreme Court, reported in (2016) 12 SCC 87 and (2005) 8 SCC 370, the public servant is entitled to question the validity of the sanction at any stage of the proceedings even at the appeal stage, though the cognizance was taken by the court earlier on the basis of the said sanction. However, in the present case, though the accused No.1 has challenged the validity of the sanction order on various grounds, the same cannot be accepted. On the other hand, the sanction order granted by PW.67 is found to be valid and the same has been accorded after due consideration of the prosecution materials placed before him. Therefore, this court is of the considered opinion that the prosecution has proved that it has secured valid sanction order as per Ex.P.249 to prosecute accused No.1. Hence, Point No.1 is answered in the Affirmative.
40. Point Nos.2 and 3: Since these two points are inter-linked, to avoid repetition, they are taken up together for consideration. As already stated, in this case, the prosecution has alleged the offence against the accused No.1 punishable under Section 13(2) R/w. Sec.13(1)(e) of the PC Act, for having amassed disproportionate assets to his known source of income and against accused No.2 abetting the commission of the offence by accused No.1, which is punishable under 47 Spl.CC.187/2014 Section 109 of the IPC. Before touching the matter, for better understanding, it is appropriate to refer the provisions of Section 13(1)(e) of the PC Act, which reads as under;
Sec.13(1) A public servant is said to commit the offence of criminal mis-conduct -
(a) .....
(b).....
(c)....
(d).....
(e) if he or any person on his behalf, is in possession or has at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account of pecuniary resources or property disproportionate to his known source of income.
Explanation: For the purpose of this Section, 'known source of income' means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to the public servant (prior to 2018 amendment).
41. On going through the above provision, it is clear that the prosecution must prove the following facts in order to bring the case under Section 13(1)(e) of the PC Act.
48 Spl.CC.187/2014
i) The accused is a public servant.
ii) Nature and extent of the pecuniary resources or property which were found in his possession.
iii) What were his known source of income which is known to the prosecution.
iv) Such resources or property found in the possession of the accused, were disproportionate to his known source of income.
If these ingredients are established, the offence of criminal mis-conduct under Section 13(1)(e) is complete, unless the accused is able to account for such resources or property. If these elements are established by the prosecution, then, onus shifts on the accused to satisfactorily account for his possession of disproportionate asset. No doubt, the extent and nature of burden of proof on the accused is preponderance of probability. It is well settled principle of law that onus to establish a particular fact on the accused is not as heavy as on the prosecution to prove the guilt of the accused, it suffice for the accused to offer an explanation in his defence which is reasonable and probable. Therefore, the initial burden is on the prosecution to establish the ingredients of the offence of the criminal mis-conduct of the accused beyond reasonable doubt.
42. In this regard, this court is being guided by the decision of the Hon'ble Supreme Court reported in (1981) 3 SCC 199 State of Maharashtra Vs. Vasudeo Ramachandra Kaidalwar, relied by the learned Senior Public Prosecutor, wherein, the Hon'ble Supreme Court of 49 Spl.CC.187/2014 India has considered Section 5(1)(e) and 5(2) of the PC Act, 1947, which is similar to Section 13(1)(e) of the PC Act, 1988. In the said case, the Hon'ble Apex Court has considered the nature and extent of the burden of proof of the prosecution and the accused in the criminal trial with regard to the offence under Section 5(1)(e) of the PC Act. The Hon'ble Apex Court held -
"The expression 'burden of proof' has two distinct meanings, (1) the legal burden i.e., the burden of establishing the guilt and (2) the evidential burden i.e., the burden of leading evidence. In the criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and that burden never shifts. Notwithstanding the general rule that burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is however not so onerous as that of which lies on the prosecution and is discharged by proof of balance of probabilities.
Section 5(1)(e) is self contained provision. The first part of it casts burden on the prosecution and the second on the accused. The onus on the accused is implicit in the words "for which the public servant cannot
50 Spl.CC.187/2014 satisfactorily account" in section 5(1)(e). The words "known source of incomes" in Section 5(1)(e) means, source known to the prosecution and the prosecution is not required to disprove all possible source of income"
The above proposition of law is concerned, again this court is being guided by the decision of the Hon'ble Apex Court, reported in 1960 SCR (1) 461 in the case of C.S.D. Swamy Vs. The State, (2004) 1 SCC 691, State of MP Vs. Awadh Kishore Gupta and Others and also the decision of the Hon'ble Apex Court reported in (2017) 14 SCC 442 Vasant Rao Guha Vs. State of Madhya Pradesh.
43. In the decision reported in (2010) 9 SCC 189, in the case between Babu Vs. State of Kerala, it is held that, every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. The burden of proof is always lies on the prosecution. In the decision reported in (1992) 4 SCC 45 in the case between M.Krishna Reddy Vs. State Deputy Superintendent of Police, Hyderabad, the Hon'ble Supreme Court held that "it is not mere acquisition of the property that constitute an offence under Section 5(1)(e), but it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending the law. To substantiate a charge under Section 5(1)(e) of the Act, the prosecution must prove the following ingredients, namely, (1) the prosecution must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources of property which were
51 Spl.CC.187/2014 found in his possession (3) it must be proved as to what were his known source of income i.e., known to the prosecution and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once the above ingredients are satisfactorily established, the offence of criminal misconduct under Section 5(1)(e) is complete, unless the accused is able to account for such resources or property. In other words, only after the prosecution has proved the required ingredients, the burden of satisfactorily accounting for the possession of such resources or property shifts to the accused."
44. This Court is also being guided by the decision reported in (1999) SCC Cri.1133, in the case between P. Nammallal Vs. State, wherein, it is held that "the two postulates must combine together for crystallization into the offence viz., possession of the property or resources disproportionate to known sources of income of the public servant and the inability of the public servant to account for it / them. Burden of proof regarding first limb is on the prosecution. Whereas, the onus is on the public servant to prove the second limb".
45. Thus, by keeping the above proposition of law in mind, the oral and documentary evidence placed on record are to be examined and find out as to whether the prosecution has established that accused No.1 has accumulated pecuniary resources disproportionate to his 52 Spl.CC.187/2014 known sources of income as required under Section 13(1)
(e) of the PC Act or not.
46. So far as the charge against accused No.2 is concerned, the prosecution has to prove that the accused No.2, being the wife of accused No.1 had abetted him to acquire disproportionate assets to the known source of income during the check period by purchasing immovable property in her name as benami purchaser for him, out of his ill-gotten income and thereby she is liable to be punished under Section 109 of the IPC, for abetting the commission of criminal mis-conduct by accused No.1.
47. Admittedly, in this case, in order to ascertain the disproportionate assets held by the accused, the prosecution has taken check period from 01.01.1998 to 02.02.2012. The prosecution has taken the assets possessed by the accused No.1 at the beginning of the check period as per Statement-A, assets possessed by him at the end of the check period as per Statement-B, income of the accused No.1 during the check period as per Statement-C and his expenditure during the check period as per Statement-D. The details of the Statement A to D are as under; Statement - A: Assets possessed by the accused No.1 at the beginning of the check period.
Sl. Details of Property Amount No. (in Rs.) 1 Immovable property - Payment towards purchase of the 14,98,000.00
immovable property No.31, 2nd Cross, Subbanna(Rs.96,000.00 sale Garden, Vijayanagar, Bengaluru and the constructionconsideration + cost of the building (Ground + 2 Floors) 14,02,000.00 construction cost. ) 53 Spl.CC.187/2014 2 Movable property -
a. Kitchen
One old mixer (electric) 500.00
b. Master Bed Room
Philips MP3 CD Player 2000.00
One Steel almirah 1500.00
One Gold long chain with pendent (15 grams) 6000.00
One Gold long chain 30 grams 12000.00
One Gold bracelet 10 grams 8000.00
Two Gold rings with stone (gifted) 0.00
One gold short chain 3 grams 1000.00
Two sets of ear rings 3 grams 1200.00
One long chain with black pearls with pendent 40 gms 16000.00 Ring and ear hangs (4 in Nos.) 2 grams 600.00 Gold ear ring with nose pin (5 grams) 1500.00 One gram gold chain (long) with pearls 1000.00 One Mens' Citizen Watch 500.00 4 pairs of old silver anklet chain 2000.00 Another Bed Room (First Floor) One wooden double cot with mattress 2000.00 Second Floor Main Hall One old washing machine (TVS) 2000.00 Two silver plates (500 grams) (Gifted) 0.00 One small silver plate and one tumbler (20 grams) (gifted) 0.00 Silver articles of various designs (2000 gms) (gifted) 0.00 Total 57,800.00 3 Bank Balance SB Account No.1372 in Karnataka State Co-operative Apex Bank Ltd., RPC Layout, Vijayanagar, Bengaluru in the name of accused No.1. 1165.00 SB Account No.1591, Karnataka State State Co- operative Apex Bank Ltd., RPC Layout, Vijayanagar, Bengaluru in the name of accused No.2. 1000.00 Total 2165 4 Advance paid by accused No.1 for purchase of 2,10,000.00 immovable property No.91, KP Agrahara, Vijayanagar, Bengaluru, measuring 675 Sq.Ft.
5 Advance paid by accused No.1 for purchase of the site 12,000.00 No.17 measuring 30 x 40 sq. feet in Sy.No.6, Subramanyapura Village, Maarasandra, Uttarahalli Hobli.
Total 17,79,965.00
54 Spl.CC.187/2014
Statement - B :Assets possessed by the accused No.1 at the end of the check period i.e., as on 02.02.2012.
Sl. Details of Property Amount No. (in Rs.) 1 Immovable property
1. Plot bearing No.31, 2nd Cross, Subbanna Garden, Behind BTS Depot, Vijayanagar, Bengaluru, measuring 675 Sq.Ft. purchased for Rs.96,000/- in the name of accused No.1 and building constructed to an extent of 178.82 Sq.Mtrs. (Ground + 2 Floors) at 14,98,000.00 the cost of Rs.14,02,000/-
2. Site No.91, KP Agrahara Layout, measuring 1200 Sq.Ft. Purchased by accused No.1 for Rs.2,10,000 and constructed building to the extent of 3472 sq.ft. Including sit out, open balcony and car parking (ground + 2 Floors with) at the cost of 27,45,500.00 Rs.25,35,500/-
3. Plot No.104, 3rd Cross, Telecom CHS Layout, KP Agrahara, Vijayanagar, Bengaluru, purchased in the name of accused No.2 for Rs.39,00,000/- (registered for Rs.12,60,000/-) and construction of 4 storeyed building in the area measuring 492.66 sq.mtrs including open balcony, sit out and parking 93,27,400.00 area at the cost of Rs.54,27,400/-
4. Plot No.30 measuring about 675 sq.ft. II Cross, Subbanna Garden, Vijayanagara, Bengaluru, purchased in the name of accused No.2 for Rs.30,37,500/- (registered for Rs.14,85,000/-) and accused No.1 constructed the building in the said plot measuring 252.88 sq.mtrs (2721 sq.ft) including open balcony and parking area at the cost of Rs.29,49,500/- 59,87,000.00
5. Vacant site measuring 30 x 40 sq.ft. Bearing No.17 in Sy.No.6 Subramanyapura Village, Maarasandra, Uttarahalli, purchased in the name of accused No.2 for Rs.3,00,000/- 3,00,000.00 Total 1,98,57,900.00 2 Movable Property Main Hall, (First Floor)
1. One wooden sofa set with 2 chairs. 5,000.00
2. One wooden sofa of 3 seats 3,000.00
3. One tea poy with granite top cleaner 2,000.00
4. One Sony Bravio TV with DVD player and speaker 90,850.00
5. Two wooden show case - wall fitted. 5,000.00
6. One dining table with six chairs 6,000.00
7. One Godrej double door refrigerator 10,000.00 55 Spl.CC.187/2014 Kitchen
1. One LG Micro oven (purchased along with LED TV and amount included in that). 00
2. One old mixer (electric) 500.00
3. Kitchen utensils in all 10,000.00
4. One table top grinder (Vijayalakshmi) 3,000.00
5. Three LPG Cylinders 00.00
6. LPG Stove 00.00 Master Bed Room
1. Mens wear dresses
2. CDs and Albums etc., (20 in nos.) 5,000.00
3. Philips MP3 CD Player 2,000.00
4. One wooden double cot with mattress 2,000.00
5. One steel almirah 32,000.00
6. One wall painting frame 1,500.00
7. One Nokia N70 mobile 500.00
8. One Nokia E52 mobile 9,000.00
9. One Nokia X2 mobile 12,300.00
10. One Sony Ericsson mobile 8000.00
11. One Nokia E5 mobile 14,370.00
12. One Olympus flash camera (gift) 6,000.00
13. One Gold Long chain 00.00
14. One Gold long chain (30 grams) 6,000.00
15. One gold bracelet 12.000.00
16. Two gold rings with stone (gift) 8,000.00
17. Three gold rings with stone (12 grams) 00.00
18. Two gold rings (one with stone) (10 grams) 12,000.00
19. One gold long chain with rudraksha (4 grams) 8,000.00
20. 3 rings with 2 stones (6 gms) 4,000.00
21. One gold short chain ( 3 grams) 6,000.00
22. 2 sets of ear rings (3 grams) 1,000.00
23. One long chain with black pearls with pendant (4 gms) 1,200.00
24. One pair of gold ear rings (4 gms) 16,000.00
25. One set of ear rings with pearl and stone (2 gms) 4,000.00
26. Rings & ear hangs (4 Nos. - 2 gms) 2,000.00
27. Gold earring with nose pin ( 5 gms) 600.00
28. A one gram gold chain (long) with pearls. 1,500.00
29. One gold bangle - 6 gms. 1,000.00
30. One gold chain - 13 gms. 4,800.00
31. One long gold chain & one short necklace (30 gms) 26,000.00
32. One long gold chain with green stone and pendent 36,000.00 (20 gms)
33. One Rado watch (men) 16,000.00
34. Titan watch (men) 22,300.00
35. One watch (gifted) 2,200.00
36. One Titan watch (men) 00.00
37. One Citizen watch (men) 1,500.00
38. One pair of silver anklet (women) 50 gms. 500.00
39. 4 pair of old silver anklet chain. 2,000.00
40. One wooden teapoy 2,000.00 56 Spl.CC.187/2014
41. Silk and fancy sarees etc., of accused No.2. 8,000.00
42. One small work table 00.00 300.00 Another bedroom (1st Floor)
1. One wooden double cot with mattress
2. One reading table with chair 2,000.00
3. One Teapoy (mica/ steel) 1,500.00
4. One small dressing table 400.00
5. One gas geyser 800.00
6. 2 wooden seaters 1,200.00
7. 1 footwear stand 2,000.00
8. 2 plastic chairs 1,200.00
9. 1 wood / steel teapoy 850.00
10.Wooden cabins fitted with walls in with bedrooms in 1st 750.00 Floor. 80,000.00
11. One small showcase fitted with glass.
2,000.00 2nd Floor Main Hall
1. One LG LED (LW 57 series) TV with Philips speaker vide Invoice No.3740
2. One wooden cutter 2,03,750.00
3. Two Guitars with Ronald amplifier 500.00
4. One HP laptop (Panasonic) (500 GB DV6 series) 64,650.00
5. One Sony make desktop (TFA) & UPS & CPU etc., 35,000.00
6. Two Computer Tables 24,000.00
7. One single wooden cot with mattress 3,000.00
8. One old washing machine (TVS) 1,500.00
9. One calculator (Engg) 2,000.00
10.One pair of steel dumbbells 500.00
11.One "Samsung" Galaxy Note N7000 tablet 600.00
12.One wooden double cot with mattress 32,700.00
13.One steel almirah 6,000.00
14.One glass & steel fitted teapoy 2,000.00
15.Wooden showcases & almirah in bedrooms and main 3,000.00 hall.
16.One leg size mirror 80,000.00
17.One "Ortem" sewing machine 2,000.00
18.One steel almirah 1,200.00
19.One wooden almirah & cub boards/ cabin with watch. 1,500.00
20.Two wooden stools 3,000.00 21.2 silver plates (500 gms) (gifted) 1,000.00 22.1 small silver plate & 1 tumbler (20 gms) (gifted) 00.00
23.One set of arathi plates (200 gms) (gifted) 00.00
24.Silver item/ articles of various design (2000 gms)(gifted) 00.00
25.One silver flower pot & different items (3 kgs) (gifted) 00.00
26.Cash of different denominations given to accused 00.00 No.1. 16,300.00 Terrace (top 2nd Floor)
1. Two "Solarizer" 51,200.00
2. 3 Pre over head water tanks. 4,500.00
3. One "Eureka Forbes" vacuum cleaner 6,790.00 57 Spl.CC.187/2014
4. One Kenstar mixer 2,000.00
5. One Suguna Motor pump 1.5 HP. 14,000.00 Total 10,88,310.00 3 Vehicles
1. Maruti Zen Car (KA02-MB-5769) in the name of accused No.1. 3,71,491.00
2. Bajaj Motorcycle KA-02/HC2497 in the name of T.Sanjay. 64,756.00
3. Honda Activa Scooter KA-02/HP-4139 in the name of accused No.1. 47,260.00
4. Honda Activa Scooter KA-02/HN-8799 in the name of T. Sanjay. 46,708.00 Total 5,30,715.00 4 Bank Balance
1. SB A/c. No.2011591(old No.1591) in the name of accused No.2 in Karnataka State Co-op Apex Bank 4,54,239.00 Ltd.,
2. SB A/c. No.2011322 (Old No.SB A/c.No.1372) with 15,37,474.00 Apex Ltd., in the name of accused No.1.
3. SB A/c.No.1052500110869301 in the name of Sri.T. 18,204.00 Sanjay, in Karnataka Bank, Vijayanagar, Bengaluru.
4. SB A/c. No.52117070673 with State Bank of 2,23,972.00 Hyderabad, Vijayanagar, Bengaluru, in the name of accused No.2.
5. SB A/c. No.6212838332 with State Bank of 4,26,884.00 Hyderabad, Vijayanagar, Bengaluru in the name of Sri. T.Sanjay.
Total 26,60,773.00
5 Cash Seized 56,82,000.00
Total 2,98,19,198.00
Statement-C :Income of the accused No.1 during the check period.
Sl. Details of Income Amount
No.
c1 Net Salary of accused No.1 17,13,385.00
2 PF Withdrawal 3,52,919.00
3 Bonus 83,475.00
4 Scholarship for children education 3,800.00
5 Pay Commission Arrears 1,82,962.00
58 Spl.CC.187/2014
6 Loan from Thrift Society of BSNL. 70,550.00
7 HBA Availed 2,80,000.00
8 Housing Loan from Canfin Homes 3,00,000.00
9 Housing Loan from State Bank of Hyderabad 10,00,000.00
10 Vehicle Loan from ICICI Bank, Bengaluru 3,25,000.00
11 LIC Maturity amount received by accused No.1 1,00,192.00
12 Interest received during the check period
1. SB A/c.No.2011591 (Old No.1591) in the name of accused No.2 in Karnataka State Co-op Apex Bank 58,236.00 Ltd.,
2. SB A/c.No.2011372 (Old No.1372) with Apex Bank Ltd., in the name of accused No.1. 1,50,501.00
3. SB A/c.No.1052500110869301 with Karnataka Bank, in the name of T. Sanjay. 141.00
4. SB A/c.No.52117070673 with State Bank of 54,762.00 Hyderabad, Bengaluru, in the name of accused No.2.
5. SB A/c. No.6212838332 with State Bank of Hyderabad, Vijayanagar, Bengaluru, in the name of 11,788.00 T.Sanjay.
Total 2,75,428.00 13 Rental Income
1. House No.91, 3rd Cross, Telecom Layout, KP Agrahara, Bengaluru. 5,73,500
2. House No.104, 3rd Cross, Telecom Layout, KP Agrahara, Bengaluru. 10,74,600,00
3. No.30, 2nd Cross, 3rd Floor, Subbanna Garden, Behind BTS Garage, Vijayanagar, Bengaluru. 5,35,700.00
4. No.31, 2nd Cross, 3rd Floor, Subbanna Garden, Behind BTS Garage, Vijayanagar, Bengaluru. 5,37,100.00 Total 27,20,900.00 14 Income of accused No.2 from business 8,94,450.00 Total 83,03,061.00 Statement-D: Expenditure of the accused No.1 during the check period Sl. Details of Expenditure Amount No. 1 House hold expenditure 1/3rd of Gross salary 10,40,323.00 2 Stamp duty on registration charges for purchase of the five immovable properties.
1. Plot No.91, 3rd Cross, Telecom Layout, KP Agrahara, Vijayanagar, Bengaluru. 30,500.00
2. No.31, 2nd Cross, Subbanna Garden, Behind BTS Depot, Vijayanagar, Bengaluru. 29,160.00 59 Spl.CC.187/2014
3. Plot No.104, 3rd Cross, Telecom Layout, KP Agrahara, Vijayanagar, Bengaluru. 1,18,760.00
4. Plot No.17, 3rd State, Mayasandra, Subramanyapura 80,190.00 Village, Bengaluru
5. Plot No.30, 2nd Cross, Subbanna Garden, Behind BTS 1,40,170.00 Depot, Vijayanagar, Bengaluru Total 3,98,780.00 3 Housing Loan repayment to Canfin Homes 3,59,205.00 4 Housing Loan repayment to State Bank of Hyderabad 2,68,941.00 5 House Building Allowance to Department. 4,30,000.00 6 Vehicle Loan repayment to ICICI Bank 3,34,923.00 7 Income Tax paid by accused No.2 74,360.00 8 Telephone and mobile charges. 82,486.00 9 Building maintenance. 9,08,130.00 10 Premium paid for LIC policies of accused No.2 and her son T. 79,135.00 Sanjay.
11 Premium paid for Bajaj Allianz Police of accused No.1 12,000.00 12 Premium paid for Reliance Life Insurance of Sri. T.Sanjay 25,000.00 13 Vehicle Road Tax.
1. Honda Activa Motorcycle KA-02/HN-8799 in the name of Sri. T. Sanjay (Life Tax Rs.5185/- Fee and smart Card Rs.197) 5,382.00
2. Bajaj Motorcycle Avenger KA-02/HC 2497 in the name of Sri. T. Sanjay (Life Tax Rs.7,123/- and 'B' Challan Rs.60/-) 7,183.00
3. Maruti Suzuki Zen Car KA-02/MB 6759 in the name of accused No.1. (Life Tax Rs.36,779/- + 'B' Challan Rs.300/- and for registration Number Rs.6,000/-) 43,079.00
4. Honda Activa Motor Cycle KA-02 HP-4139 in the name of accused No.1. (Life Tax Rs.5,246/-+ Fee and Smart Card Rs.197/-) 5,443.00
5. Honda Activa Motorcycle KA-02/EH-6749 in the name of accused No.1 (Life Tax Rs. /- + 'B' Challan 2,707.00 Rs.300/- and for registration Number Rs.6,000/-) Total 63,794.00 14 Vehicle Insurance for Maruti Zen Car and Honda Scooter Maruti Zen Car No. National Insurance Company 7,965.00 KA-02/MB 6759 of 14.01.2008 accused No.1.
Royal Sundaram 23.01.2009 5,887.00 Royal Sundaram 6,847.00 22.01.2010 Royal Sundaram 4,905.00 60 Spl.CC.187/2014 20.01.2011 Royal Sundaram 4,550.00 23.01.2012 Total 30,154.00 Honda Activa Oriental Insurance Dated 819.00 Motorcycle KA-02 25.04.2003 EH-6749 of United India Insurance dated 500.00 accused No.1 04.01.2008 United India Insurance dated 386.00 02.06.2009 United India Insurance dated 386.00 18.06.2010 Total 2,091.00 Total 32,245.00 15 House Insurance Premium 1,134.00 16 Donations 70,000.00 17 Regency Club Membership 1,25,000.00 18 Education Expenditure 2,51,128.00 19 Guitar Class Fee 7,358.00 20 House Taxes for 4 houses
1. House No.91, 3rd Cross, Telecom Layout, KP Agrahara, Bengaluru for 2009-2011. 24,250,00
2. House No.104 at 3rd Cross, Telecom Layout, KP Agrahara, 15,849.00 Bengaluru for 2011
3. House No.30, 2nd Cross, Subbanna Garden, Bengaluru for 8,631.00 2009 to 2011.
4. House No.31, 2nd Cross, Subbanna Garden, Marenahalli, 54,956.00 Bengaluru 2003-2011.
Total 1,03,686.00 21 Electric connection and consumption charges 1,35,066.00
1. House No.91, KP Agrahara, Bengaluru. (2009-2011) Development Charges Rs.7500/-
Deposit Rs.7860/-
Electricity consumption charges Rs.71,036/- 86,396.00
2. House No.104, KP Agrahara, Bengaluru for the year 2009.
Development Charges Rs.18,150/-
Deposit Rs.9,170/-
Electricity consumption charges -- 27,320.00
3. House No.30, Subbanna Garden, Bengaluru (2009 to 2011) Development Charges Rs.14,850/-
61 Spl.CC.187/2014
Deposit Rs.2,480/-
Electricity consumption charges -- 17,330.00
4. House No.31, Subbanna Garden, Bengaluru (2003-
2011)
Development Charges Rs.--
Deposit Rs.4,020/-
Electricity consumption charges -- 4,020.00
Total 1,35,066.00
22 Electric Inspection charges 5,500.00
23 Water and sewage charges 82,487.00
24 Hand loan given to colleagues.
1. Sri. Sudhar Murthy in July, 2011 1,00,000.00
2. Sri. Krishnaiah in September, 2011 5,000.00
3. Sri. M. Purushottama November 2011 10,000.00
4. Sri. Anil Kumar Lakshman Gothekar, November,2011 5,000.00
Total 1,20,000.00
25 Vehicle Maintenance Charges 97,024.00
26 Gym Class charges paid 11,856.00
27 Payment for House Rent 3,28,100.00
Total 54,47,661.00
On the basis of the above statement A to D, the IO has computed the disproportionate assets of the accused as under;
I Statement A - Assets held prior to check period i.e., on 01.10.1998 17,79,965.00 II Statement B - Assets held at the end of check period as on 2,98,19,198.00 02.02.2012 III Statement C - Income during the check period (01.10.1998 to 83,03,061.00 02.02.2012) IV Statement D - Expenditure during the check period 01.10.1998 to 54,47,661.00 02.02.2012 V Assets acquired during the check period (01.10.1998 to 2,80,39,233.00 02.02.2012) (B-A) IV Likely savings (C-D) 28,55,400.00 V Extent of Disproportionate Assets = (B-A + D-C) 2,51,83,833.00 VI Percentage of DA = (E x 100/C) 303.30%
48. On going through above statements and computation of the disproportionate assets, it is clear that the prosecution is alleging that the accused No.1 has 62 Spl.CC.187/2014 amassed disproportionate assets to the extent of 303.30% to his known source of income during the check period.
49. Per contra, the accused has given their own chart of calculation of DA and the accused claims that there was no disproportionate assets and they have shown disproportionate asset in negative at (-) 10,97,404.00 i.e., (-) 9% DA.
50. As per the version of the accused, Statement A is concerned, they are not disputing the assets shown in the Statement A by the prosecution, but claim additional amount of Rs.40,000.00 towards security deposit paid by accused No.1 for hiring the residential house for them, prior to the check period. Therefore, as per the prosecution, the total assets at the beginning of the check period was Rs.17,79,965.00, whereas, the accused claim it at Rs.18,19,965.00 and thereby the difference is Rs.40,000.00.
51. Statement B is concerned, the prosecution has claimed assets at the end of the check period at Rs.2,98,19,198.00, whereas, accused claims it at Rs.97,36,049.00. The difference is Rs.2,00,83,149.00. So far as the immovable properties are concerned, it is noticed that the accused are not disputing the value of the immovable properties shown in Sl.No.1 and 5 of table. However, the accused are not admitting the value of the other immovable properties shown by the 63 Spl.CC.187/2014 prosecution. The value shown by the prosecution and by the accused is listed as under.
Sl. Details of Value shown by the Value shown by the No. immovable property prosecution accused
1. House No.31, 2nd Value of Cost of Value of the Cost of Cross, Subbanna the plot construction plot construction Garden, (in Rs.) (in Rs.) Vijayanagar, 96,000/- 14,02000/- 14,98,000/- 00.00 Bengaluru in the name of accused No.1.
(No dispute as to
total value)
Total 14,098,000/- 14,98,000.00
(Difference
NIL)
2. Plot No.91,
Telecom Layout, KP
Agrahara,
Vijayanagara, 2,10,000/- 25,35,500/- 2,10,000/- 6,00,000/-
Bengaluru, in the
Total 27,45,000/- Total 8,10,000/-
name of accused
Difference
No.1
19,35,000/-
3 Plot No.104, 3rd
Cross, Telecom
Layout, KP
Agrahara, 39,00,000/- 54,27,400/- 12,60,000/- 20,00,000/-
Vijayanagar,
Total 93,27,400/- Total 32,60,000/-
Bengaluru in the
Difference
name of accused
60,67,400/-
No.2.
4 Plot No.30, 2nd
Cross, Subbanna
Garden,
Vijayanagar,
Bengaluru, in the 30,37,500/- 29,49,500/- 14,85,000/- 10,00,000/-
name of accused
Total 59,87,000/- Total 24,85,000/-
No.2.
Difference
35,02,000/-
5 Site No.17 in 3,00,000/- 0 3,00,000/- 0
Sy.No.6,
Subramanyapura
Village,
Maarasandra,
Uttarahalli Hobli,
Bengaluru South
Taluk, in the name
of accused No.2.
(No dispute)
Total 3,00,000/- Total 3,00,000
Difference
NIL
64 Spl.CC.187/2014
Therefore, the total value of the immovable property shown by the prosecution is Rs.1,98,57,900.00 and whereas, the total value shown by the accused is Rs.83,53,000/-. The accused have claimed reduction of Rs.1,15,04,900/- from the total amount of Rs.1,98,57,900/-.
52. Sl.No.2 movable properties are concerned, the accused have not disputed Item Nos.1 to 7 existing in the main hall (in first floor), Item Nos.1 to 6 found in the kitchen, Item Nos.1 to 9, 11 to 42 found in the master bedroom, Item Nos.1 to 11 found in another bedroom in (first floor), item Nos.1, 2, 6 to 10, 12 to 26 existing in the 2nd Floor Main Hall, Item Nos.1 to 5 found in terrace (top 2nd Floor) are not disputed by the accused persons) However, Item No.10 in master bedroom, Item Nos.3 to 5 and 11 in 2nd Floor Main Hall are disputed by the accused claiming that the value of the said movables are to be deducted. The total value of the movables shown by the prosecution is Rs.10,88,310/- whereas, the accused claims the value of the movables at Rs.9,17,590/- and thereby the accused is claiming reduction of Rs.1,70,720/- from Rs.10,88,310/- calculated by the IO.
53. So far as Sl.No.3 vehicles are concerned, the accused are not disputing the value of the Maruti Zen Car bearing No.KA-02/MB 6759 and also item Nos.3 and 4 i.e., Honda Activa Scooters bearing No.KA-02/HP 4139 and KA-02/HN 8799. However, they have disputed item No.2 of the vehicles i.e., Bajaj Motorcycle bearing No.KA-
65 Spl.CC.187/2014 02/HC 2447 standing in the name of Sri. T.Sanjay, the value of which is Rs.64,756/- to be deducted. Therefore, the prosecution claims the total value of the vehicles at Rs.5,30,215/- and whereas, the accused claim the reduction of Rs.64,756/- out of the said total value shown by the IO.
54. Sl.No.4 Bank Balance in the account is concerned, the prosecution has shown total amount of Rs.26,60,773/- as per item Nos.1 to 5 and whereas, the accused have claimed for counting the said amount as NIL. Therefore, the amount standing in the bank account is totally disputed by the accused persons.
55. Sl.No.5 cash seized is concerned, the prosecution is claiming Rs.56,82,000/- seized from the house of the accused belonging to the accused No.1 and whereas, the accused claim the said amount as NIL as it belongs to PW.70 Pampa Nayak. Therefore, the prosecution has claimed total assets at the end of the check period at Rs.2,98,19,198/- and whereas, the accused have claimed at Rs.97,36,049/- and the difference amount is Rs.2,00,83,149/- (It is noticed that in one chart, the accused have valuated the Bank Balance at Rs.4,26,884/- as against NIL).
56. Now, the Statement C i.e., income during the check period is concerned, the accused have not disputed Item Nos.2 to 12 and 14, but disputed Item No.1, 13 and also claimed additional income under 5 heads. The accused have disputed the net salary of accused No.1 as 66 Spl.CC.187/2014 shown in Item No.1 by the prosecution at Rs.17,13,385/-, but have not stated what is the actual amount to be considered. In Item No.13 rental income is concerned, the prosecution has claimed it at Rs.27,20,900/- but the accused have claimed the income at Rs.33,52,950/- and thereby, there is a difference of Rs.6,32,050/- under the said head. The accused have added the rental advance received from the tenants at Rs.9,15,000/-, value of the gift received by accused No.2 at Rs.8,50,000/-, loan availed by accused No.2 from State Bank of Hyderabad at Rs.2,60,786/-, lease advance returned by PW.59 during check period at Rs.1,00,000/- and loan credits declared by accused No.2 at Rs.11,50,000/-. Therefore, the IO has determined the total income during the check period at Rs.83,03,061/- and whereas, the accused claimed Rs.1,22,10,897/- and thereby, the accused are claiming additional income of Rs.39,07,836/- during check period.
57. So far as Statement D i.e., expenditure during check period is concerned, the accused have not disputed Item No.2 to 8, 10, 13, 15, 20, 22, 25 and remaining items i.e., Item No.1, 9, 11, 12, 14, 16 to 19, 21, 23, 24, 26 and 27 are disputed. The IO has calculated the total expenditure at Rs.54,47,661/- and whereas, the accused have calculated at Rs.31,97,409/-. The accused are seeking reduction of Rs.22,50,252/- under the said head.
67 Spl.CC.187/2014
58. The following comparative chart is placed for analysis.
Statements Amount shown Amount shown Difference
by the by the accused
prosecution
Statement A 17,79,965.00 18,19,965.00 40000
Asset at the
beginning of the
check period.
Statement B 2,98,19,198.00 97,36,049.00 2,00,83,149.00
Asset at the end of
the check period
Asset acquired 2,80,39,233.00 79,16,084.00 2,01,23,149.00
during check
period (B-A)
Statement C 83,03,061.00 1,22,10,897.00 39,07,836.00
Income during the
check period
Statement D 54,47,661.00 31,97,409.00 22,50,252.00
Expenditure
during the check
period
Likely savings 28,55,400.00 90,13,488.00 -61,58,088.00
(C-D)
Disproportionate 2,51,83,833.00 -10,97,404.00 2,40,86,429
Assets
B-A + D-C
DA Percentage 303.30% -8.98
DA x 100/C
59. As stated above, since many of the items in Statement A to D are being admitted by the accused, there is no need of considering the evidence placed before this Court with regard to the said items. Therefore, the only aspect to be considered is disputed Items of Statement A to D.
60. Now, the Statement A is concerned, as already stated, the prosecution has claimed assets of the accused 68 Spl.CC.187/2014 No.1 at the beginning of the check period at Rs.17,79,965.00 and whereas, the accused claims it at Rs.18,19,965.00. On going through the chart submitted by the accused, it is clear that the accused are seeking addition of Rs.40,000/- towards security deposit made to landlord, which was not considered by the IO. So far as this claim of the accused is concerned, accused No.1 is claiming Rs.40,000/- towards security deposit made by him to the landlord, who is examined as PW.59. The learned counsel for the accused in this regard referred the evidence of PW.59 and contended that the security deposit of Rs.40,000/- detained by the landlord to be treated as asset of the accused No.1 at the beginning of the check period as it was paid prior to the check period. On the other hand, the learned Senior Public Prosecutor has vehemently argued that the said amount cannot be considered as asset at the beginning of the check period as the said amount was paid at the time of vacating the rented premises in the year 2003 after deducting Rs.4,000/- towards painting charges and hence, Rs.36,000/- only be considered as income during the check period and same cannot be added as asset at the beginning of the check period. She has also referred the evidence of PW.59 as to deduction of Rs.4,000/- for painting charges and payment of the balance amount.
61. In the light of the rival contention, now the evidence of PW.59 Sri. Lakshminarasimhaiah is analyzed, in his evidence, he has specifically stated that accused Nos.1 and 2 were the tenants in his house from 1996 to 69 Spl.CC.187/2014 2003 and for initial period of two years, they had taken his house on lease and paid lease amount of Rs.1,40,000/- and thereafter, the lived as tenants from 1998 on monthly rent of Rs.3,000/- till 2003. Every year, the rent was increased by 5%. The accused had given deposit of Rs.40,000/- during the tenancy and paid approximately Rs.2,00,000/- towards rent. At the time of vacating the house, the security deposit was returned by deducting the painting charges of Rs.4,000/-. On going through the evidence of PW.59, it is clear that the accused Nos.1 and 2 were initially occupied his house on lease for a period of two years i.e., for 1996 and 1997 and paid Rs.1,40,000/- as lease amount and thereafter, from 1998 to till 2003, they lived as monthly tenants and paid monthly rent of Rs.3,000/- increasable by 5% for every year and paid cash security of Rs.40,000/-. It is certain from his evidence that in the year 2003, the accused Nos.1 and 2 vacated the rented premises and received an amount of Rs.36,000/- out of the cash security of Rs.40,000/- after deducting the painting charges of Rs.4,000/-. Therefore, it is clear that the cash security of Rs.36,000/- was received by the accused in the year 2003 i.e., during the check period. Therefore, that amount has to be considered as income during the check period and cannot be regarded as asset in the hand of the accused at the beginning of the check period. Therefore, the claim of the accused for additional amount of Rs.40,000/- as asset at the beginning of the check period cannot be accepted. So far as the other assets are concerned, there is no dispute. Therefore, Statement-A 70 Spl.CC.187/2014 as shown by the prosecution is required to be accepted and the claim of the accused for Rs.40,000/- cannot be accepted. Hence, the assets at the beginning of the check period as assessed by the IO as per statement A at Rs.17,79,965/- is requires to be accepted and accordingly, the same is accepted.
62. So far as asset held by the accused at the end of the check period as per Statement B is concerned, it is categorized under 5 heads as shown in the table supra. Serial No.1 immovable property is concerned, it consists of 5 items. As already stated, Item No.1 i.e., House No.31, 2nd Cross, Subbanna Garden, Vijayanagar, Bengaluru purchased by accused No.1 in the year 2002 which was earlier purchased in the name of accused No.2 in the year 1993 and item No.5 i.e., site bearing No.17 in Sy.No.6, Subramanyapura Village, Maarasandra, Uttarahalli, Bengaluru South, purchased in the name of accused No.2 in the year 2007 by accused No.1 are concerned, there is no dispute and the valuation shown by the prosecution is accepted by the accused also. Therefore, there is no need of considering the evidence on record with regard to Item No.1 and 5 of the immovable property. So far as the Item Nos.2 to 4 are concerned, there is difference in the value assessed.
63. So far as item No.2 i.e., Plot No.91, measuring 1200 sq.ft situated at KP Agrahara Layout, Vijayanagar, Bengaluru is concerned, admittedly, the said property was allotted to the accused No.1 by Telecom Employees Housing Co-operative Society in the year 1997 for a total 71 Spl.CC.187/2014 amount of Rs.2,10,000/- and the said site was registered in his name in October, 1998. In this regard, the prosecution has produced copy of the Sale Deed, Encumbrance Certificate, Provisional Allotment Letter, Possession Certificate, Receipts for having paid the sale consideration amount and other documents as per Ex.P17, Ex.P23 to 31, 32(b) to (g) and the said documents are not in dispute. After taking possession of the site, accused No.1 had constructed building to the extent of 322.68 sq.mtrs. i.e., 3472 sq.ft including sit out, open balconies and car parking (ground + 2 floors) during the year 2002-2004. It is pertinent to note that the accused have not disputed the value of the plot at Rs.2,10,000/- and the construction of the building to the extent of 3472 sq.ft. (ground + 2 floors) during the year 2002 to 2004 as put up by the prosecution. The prosecution has claimed that the cost of construction of the building in the said property at Rs.25,35,500/- and whereas, the accused claimed the cost of construction at Rs.6,00,000/- only. There is dispute only with regard to cost of construction in the said property and nothing more. Therefore, only cost of construction is to be determined in respect of this property.
64. The learned Senior Public Prosecutor, relying on the evidence of PW.1 argued that, his evidence reveals the cost of construction of the building is Rs.25,35,500/- as calculated by him. There are no reasons to disbelieve his evidence as to valuation of the building made by him. Though the accused have claimed the cost of the 72 Spl.CC.187/2014 construction of the building at Rs.6,00,000/-, they have not placed any materials before this court to accept the same. On the other hand, the prosecution has proved the valuation by examining PW.1, who is competent person to assess the construction cost. Hence, the building construction cost, as determined by the PW.1 is required to be accepted. Per contra, the learned counsel for the accused, relying on the evidence of PW.1 vehemently argued that PW.1 has not properly valued the cost of construction and he had not secured the relevant documents and information so as to assess the building construction cost and erroneously fixed it at Rs.25,35,500/- instead of Rs.6,00,000/- as stated by the accused No.1 in Ex.P.268, the statement No.1 to 6 submitted by him and also stated by him in his Assets and Liability Report. The cost of construction determined at Rs.25,35,500/- is against the equity and natural justice and accordingly, prayed for considering Rs.6,00,000/- as cost of construction instead of Rs.25,35,500/- as shown in the charge sheet.
65. In the light of the arguments addressed, now, the evidence of PW.1 Sri. P.Bhaskaran, the Valuation Officer and Executive Engineer, Income Tax Department is analyzed, in his evidence, he has stated that since 1982, he had been evaluating the properties and thereby got experience in the evaluation of the properties. At the request of the CBI, he evaluated the four properties involved in this case. His report is marked as Ex.P.1. So far as the present property i.e., Plot No.91 is concerned, 73 Spl.CC.187/2014 in para 5 of his evidence stated that he has evaluated the building at Rs.25,35,500/- and the said building has been constructed in two phases. The ground floor and first floor was constructed during November, 2001 and July, 2002 and the second floor was constructed in second phase during February and September, 2007. The plinth area was about 300 sq.mtrs and the sit-out and balcony plinth area was about 60 sq.mtrs. He further stated that on the basis of the Central Government Public Works Department Plinth Area Rates, he had evaluated the property and the valuation of the property does not include the movables found therein. He further stated that for the first two years, there will not be any maintenance charges and thereafter, maintenance charges are to be included, but he has not included maintenance charges of the building in his report. Therefore, the evidence of PW.1 is looked into, it is clear that he has calculated the construction cost based on the Central Government Public Works Department Plinth Area Rates and he has not calculated maintenance charge of the building.
66. The learned counsel for the accused has cross-examined the said witness, but nothing much was elicited from his mouth so as to disbelieve the cost of construction determined by him. No doubt, during his cross-examination, he has stated as to non-securing of certain documents and also stated that if a person constructs the building by using rejected, used, second grade materials and only by engaging the labours or 74 Spl.CC.187/2014 giving on contract, the valuation of the construction varies. It is also stated by him that if the details of the measurement or square feet are taken wrongly, the valuation differs. But on the basis of the said evidence, it cannot be said that the valuation made by PW.1 is incorrect. He has specifically stated that in the absence of the details, he had adopted the normal rates. Even during cross-examination he has specifically stated that based on his physical and visual examination and by taking actual measurement of all the properties, he assessed the value of the properties. Even he has also stated as to why he has adopted normal rates in evaluating the cost of the building. Thus, on going through the entire evidence of PW.1, this court did not find any such grounds to disbelieve the valuation made by him with regard to construction of the building.
67. Along with the oral evidence of PW.1, if his report as per Ex.P.1 is analyzed, he has given clear details as to his conclusion. It is clear that he had adopted plinth area rate with cost index method and also explained as to why he has adopted the said method instead of other two methods. He has also given clear abstract as to how he has arrived at the valuation of the building shown in his report. It is also noticed that even, PW.1 has given cost of construction in respect of item No.1 i.e., in respect of Plot No.31, 2 nd Cross, Subbanna Garden, Vijayanagar, Bengaluru involved in this case and that valuation is not disputed by the accused persons. Though the accused have claimed the cost of 75 Spl.CC.187/2014 construction at Rs.6,00,000/- they have not placed any material before this court and even they have not elicited anything in that regard from the mouth of PW.1. It is not understood how and on what basis, the accused are claiming the cost of construction at Rs.6,00,000/- as contended by them. In this regard, even the Statement of Annual Return of the Immovable Property submitted by accused No.1 found in document No.D.38 page 11 in the file is analyzed, the accused No.1 has not stated the value of the property therein. Though in his Statement Form No.1 to 6 i.e., Ex.P268, he has contended the cost of construction of the building was Rs.6,00,000/-, absolutely, there is no evidence to accept the same. On the other hand, the cost of construction as put up by the prosecution at Rs.25,35,500/- is supported with evidence of independent expert witness along with his report. The accused have neither placed any material before this court to show that the cost of construction was only Rs.6,00,000/- nor elicited anything from the mouth of PW.1 in that regard.
68. It is noticed from the contents of Ex.P.267 that while giving details under Form No.I to VI as per Ex.P.266, the accused No.1 had given detail estimate for the construction of proposed building in site No.91 to the tune of Rs.6,00,000/- with copy of the sketch and also furnished copy of the Valuation Report given by Sri. M.Nagendra Naidu. He has also produced copy of the permission dated 08.01.2003 granted by the AGM (staff to Bengaluru Telecom District) to construct the house in 76 Spl.CC.187/2014 the said site at the total cost of Rs.6,00,000/- and also produced report submitted by him to the prescribed authority after completion of the building at the cost of Rs.6,00,000/-. But, only on that basis, without required and acceptable evidence, one cannot accept the cost of construction of the building as Rs.6,00,000/- as claimed by the accused in the light of the evidence of PW.1 and Ex.P.1 Report. Except assertion of the accused No.1, absolutely there is no any other material in support of the claim of the accused. In the light of the oral evidence and the report of PW.1, this court is of the considered view that the cost of construction as stated by PW.1 is required to be accepted as against the imaginary value stated by the accused. There are no reasons to disbelieve the evidence of PW.1. Therefore, the cost of construction of the building as taken by the IO based on the report of PW.1 is required to be accepted. Hence, this court is of the considered view that the valuation of Plot No.91 as put up by the prosecution at Rs.27,45,500/- (inclusive of purchase value and cost of construction) is to be accepted as against the claim of the accused at Rs.8,10,000/-.
69. Now, Item No.3 i.e., Plot No.104, 3 rd Cross, Telecom Layout, KP Agrahara, Vijayanagar, Bengaluru is concerned, the said property was purchased in the name of accused No.2 on 11.12.2006 and four storeyed building was constructed in an area of 492.66 sq.mtrs. during 2009-10 including open balconies, sit-out and parking area are not in dispute. However, as already 77 Spl.CC.187/2014 stated, there is dispute with regard to the value of the property as well as the cost of construction. The prosecution claims the purchase value of the site at Rs.39,00,000/- and cost of construction at Rs.54,27,400/- and on the other hand, the accused claim the value of the site at Rs.12,60,000/- and cost of construction at Rs.20,00,000/-.
70. The learned Senior Public Prosecutor, relying on the evidence of PW.1, PW.6, Ex.P.35 and admitted Sale Deed dated 11.12.2006 of accused No.2, vehemently argued with regard to the valuation made by the IO at Rs.93,27,400/-. It is meticulously argued that Ex.P.35 Sale Agreement and the evidence of PW.6 reveal the actual sale consideration paid, though the said amount is shown very less in the registered Sale Deed in the light of the prevailing guidance value. She has again relied on Ex.P.1 and evidence of PW.1 to support the cost of construction. On the other hand, the learned counsel for the accused has vehemently submitted that the sale consideration shown in the Sale Deed is to be taken into consideration and in the Sale Deed, the sale consideration is shown as Rs.12,60,000/- which is to be accepted. So far as the cost of construction is concerned, the learned counsel has addressed very similar argument as addressed in connection with Item No.2 stated above.
71. In the light of the argument addressed, now the evidence available on record with regard to the value of the site is analyzed, the prosecution has examined the previous owner of the site as PW.6 and also got marked 78 Spl.CC.187/2014 Ex.P.35 and P.36. Further, the prosecution has also got marked the certified copy of the Sale Deed dated 11.12.2006 executed by PW.6 in favour of accused No.2 as per Ex.P.16 and the said Sale Deed is concerned, there is no dispute and the accused are relying on the sale consideration shown in the said Sale Deed. As argued by the learned counsel for the accused, as per the said Sale Deed, the accused No.2 had purchased Site No.104 for a total sale consideration of Rs.12,60,000/- and also paid registration fee and stamp duty. However, the prosecution claims that the actual market value of the said property is Rs.39,00,000/- and not Rs.12,60,000/- as shown in the Sale Deed. In this regard, the evidence of PW.6 Smt. Jyothi Balakrishna, the vendor of the accused No.2 is analyzed, her evidence supports the case of the prosecution.
72. PW.6 Smt. Jyothi Balakrishna, in her evidence deposed that, she had purchased the site No.104 measuring 30 x 40 feet in the year 2001 from Smt. Sujatha Vasudevan and thereafter sold the said site in favour of accused No.2 Smt. Sharada in the year 2006. It is her further evidence that both accused Nos.1 and 2 came and enquired her with regard to the site and she sold the said site for Rs.39,00,000/-. Earlier, she had entered into Agreement of Sale with accused No.2 and had received cash of Rs.20 lakhs from accused No.2 as part of the consideration amount for the purpose of marriage of her daughter. The remaining amount was agreed to be paid at the time of registration of the Sale 79 Spl.CC.187/2014 Deed and Rs.10,00,000/- was paid by means of DD and another Rs.9,00,000/- was paid in cash at the time of registration of the Sale Deed. The prosecution has got marked the original Sale Agreement dated 26.11.2006 entered into between the said witness and accused No.2 as per Ex.P.35 and also got marked the xerox copy of the Sale Deed dated 29.01.2001 under which, PW.6 had purchased the site in question subject to objection of the accused persons.
73. The evidence of PW.6 as stated above is analyzed, it is clear that the site No.104 was sold for Rs.39,00,000/- and not for Rs.12,60,000/- as shown in the Sale Deed of the accused No.2. Though the learned counsel for the accused cross-examined the said witness, nothing much was elicited from her mouth so as to disbelieve her evidence as to receipt of Rs.39,00,000/- as sale consideration of the site. There is no dispute as to execution of the Sale Agreement and suggestion put to the mouth of PW.6 on behalf of the accused reveals that the said agreement was executed for the purpose of availing the loan as accused No.2 had financial difficulty. But, the witness has denied that she had executed Sale Agreement to help the accused No.2 to avail loan from the Bank. Even, during cross-examination also, she has specifically stated that she had received Rs.39,00,000/- as sale consideration and denied the receipt of only Rs.12,60,000/- towards sale consideration.
74. Along with the evidence of PW.6, the contents of Ex.P.35 Sale Agreement are analyzed, it clearly reveals 80 Spl.CC.187/2014 that the site No.104 was agreed to be purchased by accused No.2 for Rs.39,00,000/- and out of which, a sum of Rs.20,00,000/- was paid by way of cash to PW.6 as on the date of Sale Agreement. It is also clear that the remaining amount of Rs.19,00,000/- was agreed to be paid within 15.12.2006. Therefore, the conjoint reading of evidence of PW.6 and the admitted Sale Agreement make is very clear that the actual sale consideration of the site was Rs.39,00,000/- and not Rs.12,60,000/- and in fact, Rs.39,00,000/- was paid though the sale consideration amount was shown as Rs.12,60,000/- in the registered Sale Deed. Even during cross-examination, PW.6 has stated that though she had purchased the said site for Rs.12,00,000/- in her Sale Deed, it was shown as Rs.3,60,000/- only. Therefore, as argued by the learned Senior Public Prosecutor, it appears that in view of the prevailing guidance value, in order to avoid the stamp duty, the sale consideration amount in the Sale Deed was shown as Rs.12,60,000/- though the actual sale consideration paid was Rs.39,00,000/-. There are no reasons to disbelieve the evidence of PW.6 and contents of Ex.P.35 Sale Agreement. Therefore, though in the registered Sale Deed of accused No.2, sale consideration was shown as Rs.12,60,000/- the evidence on record reveals that the actual sale consideration paid was Rs.39,00,000/-. In this regard, it is also pertinent to note that in Ex.P.268, i.e., explanation given by accused No.1, he has specifically admitted that the said property was purchased for an amount of Rs.39,00,000/-. Hence, the value of the site has to be taken at Rs.39,00,000/- and 81 Spl.CC.187/2014 not at Rs.12,60,000/- as shown in the registered Sale Deed. Therefore, this court is of the firm opinion that the value of the site as shown by the IO at Rs.39,00,000/- is to be accepted.
75. So far as the value of the cost of construction is concerned, again there is evidence of PW.1 and his report Ex.P.1. PW.1 in his evidence specifically stated that he had visited Plot No.104, 3rd Cross, Telecom CHS Layout, KP Agrahara, Bengaluru-40 on 08.04.2013 in the presence of the IO and accused Nos.1 and 2 and valued the building at Rs.54,27,400/-. He further deposed that the site was purchased during 2006, the approval for construction was obtained during July, 2007, the said building consists of ground + 2 floors. The part of the ground floor is used for car parking. The period of construction was July, 2007 to October, 2009. The approximate plinth area is about 400 sq.mtrs and plinth area of the sit-out portion is 60 sq.mtrs. Along with his evidence, Ex.P.1 report is analyzed, it support the evidence of PW.1. In Ex.P.1, he has specifically stated as to the method of valuation adopted and reason for adopting the said method. Even, he has given abstract as to how he calculated the cost of construction at Rs.54,27,400/-. Though the learned counsel for the accused has cross-examined the said witness, he could not elicit anything from his mouth so as to disbelieve his evidence and the cost of construction of the building shown in his report. Even during cross-examination, he has specifically stated that based on his physical and 82 Spl.CC.187/2014 visual examination, by taking actual measurement of properties, he assessed the valuation of the site. Therefore, on going through his evidence, it is clear that he assessed the cost of construction on physical and visual examination by taking actual measurement and on the basis of the Central Government Public Works Department Plinth Area Rates. There are no reasons to disbelieve the cost of construction determined by PW.1, the Valuation Officer.
76. It is pertinent to note that though the accused claimed the cost of construction of the building at Rs.20,00,000/-, absolutely there is no any evidence to support the same as against the valuation arrived by PW.1. Though PW.1 was cross-examined, nothing was elicited from his mouth to uphold the cost of construction at Rs.20,00,000/- as claimed by the accused. Even, no suggestion was put to his mouth in that regard. Absolutely no material was placed before this court on behalf of the accused to hold that the cost of construction of the building at Rs.20,00,000/-. It is noticed from the contents of Ex.P.267 that while giving details under Form No.I to VI as per Ex.P.266, the accused No.1 had given detail estimate for the construction of proposed building in site No.104 to the tune of Rs.20,00,000/- with copy of the sketch. But, only on that basis, without required and acceptable evidence, one cannot accept the cost of construction of the building was only Rs.20,00,000/- as claimed by the accused in the light of the evidence of PW.1 and Ex.P.1 Report. Except assertion of the accused 83 Spl.CC.187/2014 No.1, absolutely there is no any other material in support of the claim of the accused. Therefore, on analyzing entire evidence made available before the court, this court is of the considered opinion that the cost of construction of the building existing in Site No.104 is to be accepted at Rs.54,27,400/- as contended by the prosecution in the absence of any material to support the cost of construction claimed by the accused. Absolutely there are no reasons to disbelieve the cost of construction of the building stated by PW.1 in Ex.P.1. Therefore, the cost of construction of building is accepted at Rs.54,27,400/- as against Rs.20,00,000/- claimed by the accused. Hence, the total value of the site No.104 with existing building amounts to Rs.93,27,400/- as put up by the prosecution is to be accepted and the same is accepted.
77. It is also noticed from the contents of Ex.P.266 Statement of the accused No.1 in Form I to VI, relating to immovable property given by the accused wherein, the accused No.1 has contended that the Site No.104 was purchased in the name of his wife out of her own resource i.e., from rental and business income and assistance from her brothers and the said property is not connected with him. But, in this regard, it is pertinent to note that the accused have not produced acceptable evidence to show that the said property was acquired by accused No.2 out of her own resources. Though the financial assistance was stated to be given by her brothers, there is no supporting evidence. Though the brothers of accused No.2 were examined before this 84 Spl.CC.187/2014 court, as PW.19 and PW.70, they have not stated as to payment made for purchasing this property. In the evidence of PW.70, absolutely there is no evidence as to payment of any amount for purchasing the property in the name of accused No.2. Even, PW.19 has also not stated anything as to payment of the amount to accused No.2 for purchasing the property in her name. However, during cross-examination, a suggestion was put to his mouth to the effect that the consideration for purchasing the property by accused No.2 was paid by his father and the said suggestion was admitted. Therefore, the suggestion reveals that it is not the brothers who had given the money to purchase the property, but the father of accused No.2. But absolutely there is no convincing and acceptable evidence to show the amount paid by either father of the accused No.2 or her brothers. Therefore, the said contention of the accused cannot be accepted. Nothing is placed before this court to show that accused No.2 was having such business income so as to purchase the property for such huge amount. Thus, considering all these aspects, this court is of the considered view that the value of the site and cost of construction as put up by the prosecution is to be accepted, with regard to the Site No.104 and the building constructed thereon. Hence, the same is accepted.
78. So far as Item No.4 of the immovable property i.e., Plot No.30 measuring 675 sq.ft, situated at 2 nd Cross, Subbanna Garden, Vijayanagar, Bengaluru is concerned, the prosecution has claimed value of the site at 85 Spl.CC.187/2014 Rs.30,37,500/- and cost of construction of the building therein at Rs.29,49,500/- and in all Rs.59,87,000/-. On the other hand, the accused claimed value of the site at Rs.14,85,000/- and cost of construction of the building at Rs.10,00,000/- and in all, Rs.24,85,000/-. Therefore, it is clear that there is dispute with regard to the value of the site as well as cost of construction of the building in the said site.
79. The learned Senior Public Prosecutor, relying on the evidence of PW.1, PW.3 and PW.8, Ex.P.1, 9 and 10, argued with regard to the valuation made by the IO at Rs.59,87,000/-. It is meticulously argued that Ex.P.9 Sale Agreement and the evidence of PW.3 and PW.8 reveal the actual sale consideration paid, though the said amount is shown very less in the registered Sale Deed i.e., in Ex.P.10 in the light of the prevailing guidance value. She has again relied on Ex.P.1 and evidence of PW.1 to support the cost of construction. On the other hand, the learned counsel for the accused has vehemently submitted the value of the site in the registered Sale Deed is shown as Rs.14,85,000/- and that has to be taken into consideration for value of the site and not the amount mentioned in the Sale Agreement, wherein inflated price is shown with an intention to avail loan from the Bank. So far as the cost of construction is concerned, the learned counsel has addressed very similar argument as addressed in connection with Item No.2 stated above.
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80. In the light of the argument addressed, now the evidence available on record with regard to the value of the site is analyzed, the prosecution has examined the previous owner of the site as PW.8 and her husband, who is the witness to the Sale Agreement as well as to the registered Sale Deed as PW.3. The prosecution has got marked the Sale Agreement as per Ex.P.9 and original registered Sale Deed as per Ex.P.10 and its certified copy as per Ex.P.13. It is noticed that there is no dispute as to execution of the Sale Agreement and Sale Deed as per Ex.P.9 and P.10. It is noticed that for the purpose of valuation of the site, the prosecution is relying on the Sale Agreement and on the other hand, the accused is relying on the sale consideration amount mentioned in the registered Sale Deed. As argued by the learned counsel for the accused, as per the Ex.P.10 Sale Deed, the accused No.2 had purchased Site No.30 measuring in all 675 sq.ft for a total sale consideration of Rs.14,85,000/- and also paid registration fee and stamp duty. However, the prosecution claims that the actual market value of the said property was Rs.30,37,500/- and not Rs.14,85,000/- as shown in the Sale Deed.
81. With regard to above facts, the evidence of PW.3 Sri. L.Gopi, who is the husband of the owner of the said property Smt. L.Savithramma (PW.8) is analyzed, PW.3 in his evidence stated that the site bearing No.30 measuring 15 x 45 feet at Vijayanagar, Subbanna Garden, Bengaluru was in the name of his wife and she sold the said property in favour of accused No.2 in 87 Spl.CC.187/2014 December, 2008. An Agreement of Sale was entered into at that time and he has signed the said agreement as attesting witness and his wife and also the purchaser signed the said agreement. He has also stated that consideration amount was paid to him partly in cash and partly through DD, but he does not remember the amount. Through him, the prosecution got marked the original Sale Agreement and original registered Sale Deed as per Ex.P.9 and Ex.P.10 in respect of the site in question. He has also identified his signature and that of his wife and accused No.2 found in the Sale Agreement as well as the Sale Deed and also identified the signature of his wife and her photographs found in the registered Sale Deed. Therefore, on going through his examination- in-chief, it is noticed that he has not supported the prosecution case as to total amount received. However, during cross-examination by the Public Prosecutor, he has admitted that he stated before the CBI Officer that the said plot was sold for Rs.30,37,500/- and out of the same, they have received Rs.20,37,500/- in cash and remaining amount of Rs.10,00,000/- through DDs. Though the learned counsel for the accused has cross- examined him, nothing was elicited from his mouth to support the case of the accused persons. He has specifically denied the suggestion put to his mouth that Ex.P.9 was executed only with an intention to avail the loan from the Bank and therefore, the figures shown therein are inflated. Therefore, it is clear that whatever sale consideration amount shown in the Sale Agreement was not inflated one.
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82. Along with the evidence of PW.3, the evidence of his wife PW.8 Smt. L. Savithramma, is analyzed, in her evidence she had stated that she had sold the plot in favour of accused No.2 for Rs.30 lakhs and odd and at that time, they entered into an Agreement of Sale. She has also stated as to execution of Sale Deed as per Ex.P.10. However, in her evidence, she has stated that the entire sale consideration amount was paid to her in cash and her husband was looking after all the transactions and as such, she does not remember exactly whether entire sale consideration amount was paid in cash or by means of cheque or DD. It is also stated by her that she does not remember how much sale consideration amount has been mentioned in Ex.P.9. PW.8 in her evidence specifically stated that she had sold the plot for Rs.30 lakhs and odd and the said evidence remained unchallenged as accused has not opted to cross-examine the said witness.
83. Along with evidence of PW.3 and PW.8, Ex.P.9 admitted Sale Agreement is analyzed, it reveals that on 20.11.2008, PW.8 and accused No.2 entered into Sale Agreement in respect of Plot No.30 and accused No.2 had agreed to purchase the said plot for total amount of Rs.30,37,500/- and also paid advance amount of Rs.10,00,000/-. The remaining sale consideration of Rs.20,37,500/- was agreed to be paid at the time of registration. Therefore, the Sale Agreement entered into between the accused No.2 and PW.8 clearly reveals that the site No.30 measuring 675 sq.ft was agreed to be sold 89 Spl.CC.187/2014 for Rs.30,37,500/- as contended by the prosecution. Therefore, on conjoint reading of evidence of PW.3 and PW.8 and contents of Ex.P.9 Sale Agreement, it is clear that the real sale value of the plot sold was Rs.30,37,500/-. As argued by the learned counsel for the accused, as found in Ex.P.10, the Sale consideration amount was mentioned as Rs.14,85,000/-. But, the evidence on record clinchingly establish that the actual sale consideration paid was Rs.30,37,500/- and not Rs.14,85,000/-. Therefore, as argued by the learned Senior Public Prosecutor, it appears that in view of the prevailing guidance value, in order to avoid the stamp duty, the sale consideration amount in the Sale Deed was shown as Rs.14,85,000/- though the actual sale consideration paid was Rs.30,37,000/-. There are no reasons to disbelieve the evidence of PW.3 and PW.8 and contents of Ex.P.9 Sale Agreement. There are no reasons to hold that the inflated value is shown in the Sale Agreement as contended by the accused. Apart from all these aspects, it is pertinent to note that in the explanation given by accused No.1 as per Ex.P.268, he has specifically admitted that the said plot was purchased in the name of his wife in the year 2008 for an amount of Rs.30,37,500/- from Smt. L.Savithramma and also mode of payment. Therefore, though in the registered Sale Deed of accused No.2, sale consideration was shown as Rs.14,85,000/- the evidence on record reveals that the actual sale consideration paid was Rs.30,37,500/-. Hence, the value of the site has to be taken at Rs.30,37,500/- and not at Rs.14,85,000/- as 90 Spl.CC.187/2014 shown in the registered Sale Deed. Therefore, this court is of the firm opinion that the value of the site as shown by the IO at Rs.30,37,500/- is to be accepted.
84. So far as the value of the cost of construction is concerned, again there is evidence of PW.1 and his report Ex.P.1. PW.1 in para 4 of his evidence stated that on 08.04.2013 he inspected Plot No.30, 2 nd Cross, Subbanna Garden, Vijayanagar, Bengaluru in the presence of the CBI Inspector and accused Nos.1 and 2. The said building is evaluated at Rs.29,49,500/-. The said building consists of ground + 3 floors. The part of the ground floor is being used for car parking. The approximate plinth area is about 208 sq.mtrs and approximate plinth area of the balcony is about 45 sq.mtrs. The period of construction is April-2009 to May- 2010. Along with his evidence, Ex.P.1 report is analyzed, it support the evidence of PW.1. In Ex.P.1, he has specifically stated as to the method of valuation adopted and reason for adopting the said method. Even, he has given abstract as to how he calculated the cost of construction at Rs.29,49,500/-. Though the learned counsel for the accused has cross-examined the said witness, he could not elicit anything from his mouth so as to disbelieve his evidence and the cost of construction of the building shown in his report. Even during cross- examination, he has specifically stated that based on his physical and visual examination, by taking actual measurement of properties, he assessed the valuation of the site. Therefore, on going through his evidence, it is 91 Spl.CC.187/2014 clear that he assessed the cost of construction on physical and visual examination by taking actual measurement and on the basis of the Central Government Public Works Department Plinth Area Rates. There are no reasons to disbelieve the cost of construction determined by PW.1, the Valuation Officer.
85. It is pertinent to note that though the accused claimed the cost of construction of the building at Rs.10,00,000/-, absolutely there is no any evidence to support the same as against the valuation arrived by PW.1. Though PW.1 was cross-examined, nothing was elicited from his mouth to uphold the cost of construction at Rs.10,00,000/- as claimed by the accused. Even, no suggestion was put to his mouth in that regard. Absolutely no material was placed before this court on behalf of the accused to hold that the cost of construction of the building at Rs.10,00,000/-. It is not understood how and on what basis, the accused are claiming the cost of construction at Rs.10,00,000/- as contended by them. Though in his Statement i.e., Ex.P268, accused No.1 has contended that the cost of construction of the building was Rs.10,00,000/-, absolutely there is no evidence to accept the same. On the other hand, the cost of construction as put up by the prosecution at Rs.29,49,500/- is supported with evidence of independent expert witness along with his report. The accused have neither placed any material before this court to show that the cost of construction was only Rs.10,00,000/- nor elicited anything from the mouth of 92 Spl.CC.187/2014 PW.1 in that regard. Except assertion of the accused No.1, absolutely there is no any other material in support of the claim of the accused. In the light of the oral evidence and the report of PW.1, this court is of the considered view that the cost of construction as stated by PW.1 is required to be accepted as against the imaginary value stated by the accused. Therefore, the cost of construction of the building as taken by the IO based on the report of PW.1 is required to be accepted. Hence, this court is of the considered view that the valuation of Plot No.30 as put up by the prosecution at Rs.29,49,500/- is to be accepted as against the claim of the accused at Rs.10,00,000/-. Absolutely there are no reasons to disbelieve the cost of construction of the building stated by PW.1 in Ex.P.1. Therefore, the cost of construction of building is accepted at Rs.29,49,500/- as against Rs.10,00,000/- claimed by the accused. Hence, the total value of the site No.30 with existing building amounts to Rs.59,87,000/- as put up by the prosecution and the same is accepted.
86. It is also noticed from the contents of Ex.P.266 Statement of the accused No.1 in Form No.I to VI relating to immovable property given by the accused wherein, the accused No.1 has contended that the Site No.30 was purchased in the name of his wife by receiving the fund from her brothers through cheques and DDs and the building was constructed by his wife by availing loan/ financial assistance from the brothers. But, in this regard, it is pertinent to note that the accused have not 93 Spl.CC.187/2014 produced acceptable evidence to show that the said property was acquired by accused No.2 out of the financial assistance provided by her brothers and building was constructed by availing loan and financial assistance from her brothers. Though the financial assistance was stated to be given by her brothers, there is no supporting evidence.
87. In the evidence of PW.70, absolutely there is no evidence as to payment of any amount for purchasing the property in the name of accused No.2 and construction of the building. Even, PW.19 has also not stated anything as to payment of the amount to accused No.2 for purchasing the property in her name and constructing the building. However, during cross- examination, a general suggestion was put to the mouth of PW.19 to the effect that the consideration for purchasing the property by accused No.2 was paid by his father and the said suggestion was admitted. But the said suggestion is contrary to the contention taken by the accused in this regard. Absolutely there is no convincing and acceptable evidence to show the amount paid either by father of the accused No.2 or by her brothers to purchase the property and to construct the building. Therefore, the said contention of the accused cannot be accepted. Thus, considering all these aspects, this court is of the considered view that the value of the site and cost of construction as put up by the prosecution is to be accepted, with regard to the Site No.30 and the building constructed thereon. Hence, the same is accepted.
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88. Therefore, on considering the entire oral and documentary evidence, this court is of the considered view that the valuation of the immovable properties which includes value of the site as well as the building constructed thereon, as shown by the prosecution at Rs.1,98,57,900/- is to be accepted and accordingly the amount shown in Statement B in respect of the immovable properties as put up by the prosecution is accepted.
89. Sl.No.2 of Statement B, is regarding movable properties is concerned, the prosecution has claimed total amount of the movable properties of the different items as shown in the table at Rs.10,88,310/-. However, the accused had contended the total value of the movable properties should have been Rs.9,17,590/- as against Rs.10,88,310/-. On going through the rival contention and the chart provided, it is clear that the accused are disputing only 5 items of the movable properties and there is no dispute with regard to other movable properties as shown by the IO. Therefore, the items which are not disputed needs no further consideration. It is pertinent to note that the accused have not disputed the value of any of the movable properties as shown by the IO. The accused have disputed the following items.
Item Nos. Particulars Amount
(In Rs.)
Item No.10 found in One Sony Ericsson 14,370/-
Master Bedroom Mobile
Item No.3 Guitar with Ronald 64,650/-
Amplifier and Guitar
Item No.4 One HP Laptop 35,000/-
Panasonic (500GB
95 Spl.CC.187/2014
DV6 Series
Item No.5 One Sony Make 24,000/-
Desktop (TFA and
UPS and CPU) etc.,
Item No.11 One Samsung 32,700/-
found in second Galaxy Note N 700
floor main hall.
Total 1,70,720/-
90. With regard to the above items, the accused have contended that the said items were purchased by Sri.T.Sanjay, son of the accused, out of his independent income from the profession and also out of the gift money received from his maternal uncles and grand-father and the value of the said properties are to be deducted and thereby the total value of the movables come to Rs.9,17,590/- as against Rs.10,88,310/- as put up by the prosecution.
91. The learned Senior Public Prosecutor in her argument submitted that the accused have not produced any evidence to show that these movable properties were purchased from the earning of their son PW.68, who was studying at the relevant point of time. On the other hand, the learned counsel for the accused submitted that the PW.68 was doing part time job in Real Estate business and was getting commission. Out of the amount so earned, he had purchased the said properties. Further, he was also provided with financial assistance from his maternal uncles. In this regard, he has also taken notice of this court with regard to Ex.D.32 and some bills found in Ex.P.57.
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92. In the light of the argument addressed, now the evidence on record is analyzed, the prosecution has examined the son of the accused Sri.T.Sanjay, as PW.68, who in his evidence stated that he completed Engineering (Computer Science) Graduation during 2010 and thereafter, he did MBA from Allianz Business Academy, Bengaluru. He was doing part-time job during his study of Graduation from 2009 to 2011. During his cross- examination on behalf of the accused, with regard to the above said movables are concerned, he has specifically stated that he had purchased item No.3 to 5 and 11 stated in the above table by his own earnings from his part-time job. He has also stated the amount spent for purchase of the said movables. But he has not stated anything as to item No.10 found in the Master Bedroom i.e., Sony Ericsson Mobile.
93. In this regard, it is pertinent to note that there is no convincing and acceptable evidence to show that Sri.T.Sanjay was doing either part-time job or real estate business. No doubt, the letter is produced as per Ex.D.32 to shows that he had earned some amount in connection with the real estate. But, only on that basis it cannot be said that he was doing real estate business as contended in the absence of required, acceptable and convincing evidence. Apart from that, it is pertinent to note that in the details furnished under Form I to VI i.e., in Ex.P.266, the accused No.1 has specifically stated that item No.10 i.e., one Sony Ericsson Mobile of the value of Rs.14,370/- and item No.11 i.e., one Samsung Galaxy Tablet of 97 Spl.CC.187/2014 Rs.32,700/- were his self-acquired properties. Therefore, the contents of Ex.P.266 reveal that both these two items were acquired by accused No.1 himself and not by PW.68. No doubt, the bills found in Ex.P.57 relating to item No.10 and 11 are standing in the name of PW.68, but in the light of contents of Ex.P.266, it is clear that both the said items were purchased by accused No.1 himself, but in the name of his son, PW.68. The remaining 3 items are concerned, though PW.68 has stated that he acquired the said movables out of his own earning, there is no convincing and acceptable evidence except his oral assertion. Though there is bill relating to the Guitar Ex.P.57 in the name of PW.68, the same is not convincing and acceptable. In this regard, it is also noticed that, in the evidence, PW.68 asserts that he had earned the said movables by his own earning. But, in the argument notes, it is stated that he earned the said movables out of his independent income from his profession and by the gifts given by his maternal uncles and grand-father. The maternal uncles, who are examined as PW.19 and PW.70 have not stated anything in this regard. Therefore, in the light of the existing evidence, it cannot be accepted that the said movable properties were purchased by PW.68 out of his own earnings as contended. Admittedly, he was pursuing his education and there is no material to show that he was doing any profession or the part-time job as contended. Hence, the said movables have to be regarded as the property acquired by accused No.1 himself. Therefore, 98 Spl.CC.187/2014 the value of the movables in Sl.No.2 of Statement B, as determined by the IO is required to be accepted.
94. So far as the Sl.No.3 of the Statement B relating to vehicles is concerned, it contains 4 vehicles and the accused have not disputed purchase of the said vehicles in the name of the accused No.1 and in the name of Sri.T.Sanjay and also valuation of the said vehicles as shown by the IO. It is noticed that out of the four vehicles, the accused have not disputed three vehicles i.e., Maruti Zen Car bearing No.KA-02/MB-6759, Honda Activa Scooter bearing No.KA-02/HP-4139 standing in the name of accused No.1 and Honda Activa Scooter bearing No.KA-02/HN 8799 standing in the name of Sri.T.Sanjay, son of the accused No.1 and 2. However, the accused have contended that item No.2 vehicle i.e., Bajaj Motorcycle bearing No.KA-02/HC-2497 is belonging to their son Sri.T.Sanjay and that cannot be included as the assets of the accused as it was purchased by their son out of his own income from his profession i.e., by doing part-time work in programming.
95. The learned Senior Public Prosecutor vehemently contended that though the accused have contended that their son PW.68 had purchased the said vehicle out of his own income, the same has not been proved and the evidence on record is also contrary to the said contention. Hence, the said vehicle is also to be considered as the asset of the accused No.1 himself. On the other hand, the learned counsel for the accused, relying on the evidence of PW.13 contended that the cost 99 Spl.CC.187/2014 of the said vehicle as well as road tax were being paid by Sri.T.Sanjay out of his own earning by doing part-time job and hence, that has to be excluded from the assets of the accused for the purpose of computation of value of the vehicles.
96. The prosecution has examined PW.13 and PW.68 in this regard. PW.13 Sri.N.Mohan, Ex- Commercial Manager, Khivraj Motors, Bengaluru, in his evidence stated that Sri.T.Sanjay, son of Sri. Tholasiram had purchased Bajaj Avenger Motorcycle and the total cost of the said vehicle was Rs.74,020/-. He further stated that T.Sanjay has paid Rs.9,264/- towards insurance, registration and lifetime road tax and Rs.64,756/- towards cost of the vehicle. In that regard, even the prosecution has got marked documents as per Ex.P.70 to 74 and the said documents are not in dispute. PW.13 in his evidence stated that Sri.T.Sanjay had paid Rs.74,020/- towards cost of the vehicle, registration charges and insurance amount. As already stated, there is no dispute as to cost of the vehicle and the said vehicle was purchased in the name of Sri.T.Sanjay, son of the accused Nos.1 and 2. But, the point for consideration is only source for purchasing the said vehicle. As per the prosecution, the said vehicle was purchased by accused No.1 in the name of his son, but the contention of the accused Nos.1 and 2 is that the said vehicle was purchased by their son by his own earning. In this regard, on going through the I to VI Statement given by the accused No.1 as per Ex.P.266, it is noticed that 100 Spl.CC.187/2014 accused No.1 has not given any explanation with regard to the said vehicle, though he has referred other three vehicles as they were acquired by him out of his own savings. However, in para 27 of his I to VI statement, he has stated that his son has accounted for his earning in accordance with law.
97. Now, the evidence of PW.68, the son of the accused Nos.1 and 2, in whose name the said vehicles stand, is looked into, in his examination-in-chief, the prosecution has not brought out anything in this regard. However, during the cross-examination on behalf of the accused, he has stated that the amount for the purchase of the Activa Honda as per Ex.P.78 for Rs.61,078/- and for purchase of Bajaj Motorcycle as per Ex.P.70 to 74 for Rs.74,020/- were paid by PW.19 and Pampanayaka (PW.70). Therefore, the evidence of PW.68 in whose name, the said vehicles stand is looked into, it is clear that he claims that the said two vehicles were purchased out of the amount paid by PW.19 and Pampanayaka-PW.70, who are his maternal uncles. But it is pertinent to note that, as already stated, in Ex.P.266, details furnished in Form No.I to VI reveal that Honda Activa as per Ex.P.78 was purchased by accused No.1 himself by his own savings and not either by PW.68 by his own earning or by the the amount paid by his maternal uncles. Though, PW.68 has stated that for purchase of the Bajaj Motorcycle, a sum of Rs.74,020/- as found in Ex.P.70 to 74 was paid by PW.19 and PW.70, there is no any acceptable evidence to show that they had paid the said 101 Spl.CC.187/2014 amount. Either PW.19 or PW.70 in their evidence stated as to payment made for purchasing the said motorcycles in the name of PW.68. During cross-examination, PW.19 has admitted a suggestion put to his mouth to the effect that his brother has paid amount to Sri.Sanjay, to buy the motorcycles. This suggestion reveals that PW.19 had not paid any amount for purchasing the motorcycle in the name of Sri.T.Sanjay. PW.70 Pampanayaka, in his evidence has not stated anything as to payment made by him towards purchase of the motorcycle in the name of Sri.T.Sanjay. Therefore, it is clear that the motorcycle in question was neither purchased out of the alleged own earnings of the PW.68, nor the amount paid by PW.19 or PW.70 as stated by PW.68. Under these attending circumstances, it has to be considered that the said vehicle was also purchased by accused No.1 in the name of his son Sri.T.Sanjay. Such being the case, the contention of the accused that the value of the Bajaj Motorcycle standing in the name of Sri.T.Sanjay cannot be included in computing the value of the vehicles, cannot be accepted. Therefore, the value of the vehicles as shown by the IO in Sl.No.2 of the Statement B is to be accepted.
98. Sl.No.4 of the Statement B deals with Bank Balance and table No.7 of the charge sheet gives details of the accounts held by accused Nos.1 and 2 and their son Sri.T.Sanjay. As already stated, the accused have disputed the said amount and claimed that, it shall not be included in the value of the assets of the accused as 102 Spl.CC.187/2014 the same includes the amount belonged to Hindu Undivided Family of accused No.2 and also self-earning of their son Sri.T.Sanjay. It is pertinent to note that the accused have not disputed the existence of the accounts in their names and in the name of their son and also the total amount standing in the said accounts as put up by the prosecution. Therefore, there is no need of considering the evidence in that regard. As per the prosecution, there was Rs.26,60,773/- in the Bank Accounts standing in the name of accused No.1 and 2 and their son. However, the accused have contended that the said amount does not belongs to accused, but it belongs to Hindu Undivided Family of the accused No.2 and earnings of their son Sri.T.Sanjay. Therefore, the only fact to be determined is, whether the amount standing in the Bank Accounts of the accused Nos.1 and 2 and their son is belonging to the accused or the said amount is belonging to Hindu Undivided Family of accused No.2 and their son Sri.T.Sanjay.
99. Now, the accounts belonging to accused No.2 is concerned, admittedly, two accounts are standing in her name. The first account bearing S.B. Account No.2011591 (Old No.1591) is with Karnataka State Co-op Apex Bank Ltd., RPC Layout, Bengaluru and there was balance amount of Rs.4,54,239/- and another S.B. Account No.52117070673 with State Bank of Hyderabad, Vijayanagar, Bengaluru, with balance of Rs.2,23,972/-. With regard to these two accounts, the details furnished by the accused No.1 in Form No.I to VI i.e., Ex.P.266 is 103 Spl.CC.187/2014 looked into, it is contended by him that the balance existing in the said accounts represent periodical remittance made to the accounts from the agricultural/ farm income of Hindu Undivided Family of accused No.2. But, to substantiate the same, there is no convincing and acceptable evidence. It is not understood on what basis the accused claim that the balance found in the said two accounts are the periodical remittances made to the said account from the agricultural income of the Hindu Undivided Family. There is no clarity as to who has deposited the said amount and for what purpose in the name of accused No.2. In this regard, it is pertinent to note that though in this case the brothers of accused No.2 i.e., PW.19 and PW.70 were examined, they have not stated anything as to depositing of the agricultural income in the account of the accused No.2. No doubt, the accused, during cross-examination of PW.19, produced many documents to show the agricultural income to the parental family of accused No.2. However, only on the basis of the said documents, it cannot be said that the amount standing in the name of accused No.2 is the amount of the agricultural income of the Hindu Undivided Family of her undivided family, as stated in Ex.P.266. It is not the case of the accused that the said amount is the self-earning of the accused No.2 and even no documents are produced to show that the balance amount standing in her Bank Account was earned by her own. Such being the case, it has to be accepted that the amount standing in the accounts of the accused No.2, belongs to the accused No.1 himself.
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100. So far as the S.B. Account No.2011372 (S.B. A/c.No.1372-old) with Karnataka Co-op Apex Bank Ltd., RPC Layout, is concerned, it stands in the name of accused No.1 and the balance amount is found to be Rs.15,37,474/-. The accused in his Form I to VI Statement (Ex.P.266) contended that it represents the amount deposited on behalf of the brothers of his wife in his name. But absolutely, there is no evidence of any kind to accept that such huge amount was deposited in the name of accused No.1 by his brothers-in-law. He has not stated anything as to who, when, why, how much and in what mode the said amount was being deposited. Therefore, the contention of the accused that the balance amount found in the said account was remitted by his brothers-in-law cannot be accepted. Further, the brothers-in-law of the accused No.1, who are examined before this court have not stated anything as to deposit of the amount. With regard to the amount deposited in the Account, the prosecution has examined the Branch Manager of the Karnataka State Co-operative Apex Bank Ltd., as PW.2 and through him, the account statement relating to the accused Nos.1 and 2 maintained in the said Bank got marked. At this stage itself, it is pertinent to note that since the amount existing in the account is admitted, there is no need of considering any other evidence in that regard. Now, the evidence of PW.2 is analyzed, during his cross-examination on behalf of the accused, he has stated that the salaries of accused No.1 were being deposited in Ex.P.4 account through cheque. Therefore, on going through the evidence on record, 105 Spl.CC.187/2014 viewed from any angle, it cannot be accepted that the amount found in the Bank Account of the accused No.1 was the amount deposited by his brothers-in-law as contended. Therefore, the amount standing in the said account has to be considered as the asset of the accused No.1 and accordingly, the said amount taken by the IO as asset of the accused No.1 is accepted.
101. The other accounts i.e., S.B. A/c. No.1052500110869301 with Karnataka Bank, Vijayanagar, Bengaluru and S.B. A/c. No.6212838332 with State Bank of Hyderabad, Vijayanagar, Bengaluru are in the name of Sri.T.Sanjay, who is the son of the accused Nos.1 and 2. As already stated, there is no dispute as to existence of the account and amount existing therein. Therefore, there is no need of considering any evidence in that regard. So far as this amount is concerned, the IO has considered the said amounts belong to the accused No.1 himself. On the other hand, the contents of Ex.P.266 i.e., details furnished under Form No.I to VI are analyzed, the accused No.1 has contended that the balance amount standing in S.B. A/c. No.6212838332 with State Bank of Hyderabad is the financial assistance given to his son Sri.T.Sanjay by his maternal uncle and the balance amount standing in the S.B. A/c. No.1052500110869301 with Karnataka Bank Ltd., Vijayanagar, Bengaluru is the self-earning and accumulated balance of Sri.T.Sanjay. The balance amount stated in Ex.P.266 and in the charge sheet are found to be varying to some extent. However, 106 Spl.CC.187/2014 the detail given by the accused in his chart as well as the argument notes reveals that the amount standing in the accounts as stated by the prosecution is correct.
102. So far as the amount standing in the account of Sri.T.Sanjay, with State Bank of Hyderabad is concerned, there is an amount of Rs.4,26,884/- in the said account. The accused No.1 in his I to VI statement contended that the said amount is the self-earning and the financial assistance from the maternal uncles of his son. In his statement he has not stated as to what is the source for self-earning of his son. Absolutely there is no convincing and acceptable evidence to accept the stand of the accused that the said amount represents financial assistance from the maternal uncles of his son. No evidence is produced to show that such huge amount was deposited by the maternal uncles of Sri.T.Sanjay, in his Bank Account. Further, though the maternal uncles of Sri.T.Sanjay are examined before the court, they have not stated anything in that regard. Even, Sri.T.Sanjay, who is examined as PW.68 has also not stated anything as to the amount deposited by his maternal uncles to his Bank Account. Therefore, the contention of the accused that the amount in the said account of their son represents the amount paid by his maternal uncles cannot be accepted.
103. It is pertinent to note that during cross- examination of PW.68 Sri.T.Sanjay, on behalf of the accused, he has stated that he was doing real estate broker business as his part-time job and depositing his 107 Spl.CC.187/2014 earning to his S.B. A/c in State Bank of Hyderabad, Vijayanagar, Bengaluru. In this regard, the learned counsel for the accused has taken notice of this court on Ex.P.92, wherein, the entry dated 11.05.2010 is marked as Ex.D.31, Ex.D.32 and entries dated 31.01.2011, 31.05.2011, 21.09.2011 which are collectively marked as Ex.D.33 contending that the amount standing in the said account is the self-earning of PW.68. The amount deposited in the said account earned interest of Rs.21,613/- and as such, the said amount has to be considered as the self-earned amount of Sri.T.Sanjay and not the asset of accused No.1. It is also submitted by him that the the prosecution has not disputed his evidence in that regard and his evidence remained un-challenged. Now the contents of Ex.D.32 and Ex.D.31 and 33 found in Ex.P.92 (A/c. Statement) are analyzed, they support the version of the accused. It is clear from Ex.D.32 that the cheque was issued in favour of Sri.T.Sanjay for Rs.2,23,750/- vide cheque No.847079 dated 11.05.2010 towards commission for introducing the members for purchase of the sites in the Layout, formed by Karnataka Telecom Department Employees Co-operative Housing Society Ltd., and the said amount was deposited in his account. Further, a sum of Rs.1,75,000/- was found to be deposited in cash which he claims to be his self- earning, which is not disputed by the prosecution. It is also clear that a sum of Rs.21,613/- was credited to the said account by way of interest. Therefore, in the light of the unchallenged evidence of PW.68 and Ex.D.31 to D.33 and Ex.P.92, this court is of the considered view that 108 Spl.CC.187/2014 though the part-time job and income earned from the said part-time job by Sri.T.Sanjay, is not proved, the amount standing in his name in S.B. Account with State Bank of Hyderabad, Vijayanagar, Bengaluru has to be treated as amount belonging to him and not to the accused. The contention of the accused in this regard appears to be probable. Therefore, the amount of Rs. 4,26,884/- standing in the said account cannot be considered as an asset of the accused No.1 and that has to be deleted from computing the asset of the accused at the end of the check period. Accordingly, the said amount has to be treated as NIL as contended by the accused as against the claim of the prosecution.
104. So far as another account of Sri.T.Sanjay, maintained with Karnataka Bank, vide S.B. A/c.No.1052500110869301 is concerned, in the said account, there was balance of Rs.18,224/- as on the date of end of the check period as found in Ex.P.81, the A/c. Statement and the said A/c. Statement is not in dispute. The accused No.1, in his I to VI statement, contended that the said amount is the self-earning of his son and accumulated balance. Though such assertion is made, there is no convincing and acceptable evidence in that regard. Even, PW.68 in whose name the said account stands is examined before the court, he has not stated as to depositing of the amount in the said account by his own earning, though he has stated regarding the amount deposited in another account. No material is placed before this court to show the job and earning of the son 109 Spl.CC.187/2014 of the accused No.1, who was admittedly a student at the relevant point of time. Therefore, the amount standing in the said account of the son of the accused No.1 is to be regarded as asset of the accused No.1 himself and it cannot be treated as self-earned amount of the son of the accused No.1 as stated by accused No.1 in Ex.P.226 I to VI statement. Therefore, the IO has rightly included the said amount in the asset of the accused at the end of the check period. Therefore, considering the entire material placed before this court, this court is of the considered view that except the amount standing in the name of the son of the accused Sri.T.Sanjay, in S.B. A/c. No.6212838332 maintained with State Bank of Hyderabad, the remaining amount found in the four accounts are to be treated as the asset of the accused No.1 at the end of the check period. Hence total amount of Rs.22,33,889/- could be treated as an asset of the accused No.1 at the end of the check period as against Rs.26,60,773/-.
105. Sl.No.5 of Statement B consists cash of Rs.56,82,000/- seized from the house of the accused persons during house search on 02.02.2012. In this regard, the prosecution has produced search list as per Ex.P.52 and inventory made as per Ex.P.62. In this regard, it is pertinent to note that the accused have not disputed the search made and the amount and denomination of the currency notes and other documents seized as per Ex.P.52. Therefore, there is no need of considering the matter in that regard. The prosecution 110 Spl.CC.187/2014 has contended that the seized amount of Rs.56,82,000/- is the asset of the accused No.1. On the other hand, in I to VI statement (Ex.P.266), the accused No.1 has contended that out of the seized amount, Rs.12,20,000/- (1220 x Rs.1,000/-) represents the agricultural income of Sri. Pampanayaka, a sum of Rs.37,85,000/- (7570 x Rs.500) represents the agricultural income of Hindu Undivided Family headed by Sri. Pampanayaka and part of the sale consideration of sale of 4 acres of the property in Sy.No.97B held in the name of Dr. Banarji and cash of Rs.6,77,000/-(6770 x Rs.100/-) represents the agricultural income of Sri. Pampanayaka and the said amount did not belong to him.
106. As already stated, there is no dispute that an amount of Rs.56,82,000/- in cash was seized from the house of the accused No.1 during the search as per Ex.P.52. It is needless to say that when the cash is seized from the custody of the accused, the said cash is deemed to be considered as it belongs to him, unless the contrary is established. In this case, it is pertinent to note that, though the accused have taken the defence that the said seized amount does not belong to them, they have not placed any evidence on their behalf. However, they tried to rely on the evidence of PW.19, PW.68 and PW.70 examined by the prosecution and the document marked during their cross-examination. In this regard, the evidence of PW.19, 68 and 70 are looked into, it is not in dispute that PW.19 and PW.70 are the brothers of accused No.2 and brothers-in-law of accused 111 Spl.CC.187/2014 No.1 and PW.68 is none other than the son of the accused. During cross-examination of PW.19, the accused have got marked many documents. PW.19 himself has produced the documents and the same were marked as per Ex.D.10 to D.22 to support the contention of the accused in this regard. Ex.D.10 to 14 are the affidavits of the PW.19 and his brothers B. Pampa Naik (PW.70), H.Shanmuga Naik, Sri. Padavipathi Naik and affidavit of one Sri. Talagere Shivappa. Ex.D.15 and 16 are the genealogy and list of property standing in the name of family members of Pampa Naik, Ex.D.17 contains RTC and Crop Certificates, Ex.D.18 contains bills for sale of agricultural produce, Ex.D.19 contains bills regarding cane supply, selling of sheeps, receipt for having received the amount from selling of the vehicle, purchase bill of the seeds and some cash bills. Ex.D.20 contains the ledger account for the period from 01.04.2007 to 20.02.2012, Mutation Extract, certified copy of the Sale Deed dated 17.01.2005 and Original Agreement of Sale dated 10.02.2010, Ex.D.21 is the Profit and Loss Account from 01.04.2000 to 31.12.2011 and Ex.D.22 is the Sugar Cane Bill.
107. Now, the evidence of PW.19 is looked into, during his cross-examination on behalf of the accused, he has admitted the suggestion that his father was owning 83 acres of land and 4 acres of land was sold by his father to Sri.Shivappa, for Rs.26,50,000/- and the sale consideration was given in the hands of accused No.2. It is further admitted by him that the said amount 112 Spl.CC.187/2014 was given to accused No.2 to buy a property in the name of himself and his brothers. He has further admitted the suggestion put to his mouth that their family had received income of Rs.1,29,07,671/- and accused No.2 was the eldest daughter in their family, his father was having much affection towards her and her children, his father borne the educational expenses of the children of accused Nos.1 and 2. He has further admitted the suggestion that an amount of Rs.56,82,000/- was kept with accused as temporary custody.
108. The evidence of PW.68 Sri.T.Sanjay, who is the son of accused Nos.1 and 2 is looked into, in his evidence, he has stated that he is aware about the seizure of the amount from the residence of his parents amounting to Rs.56 lakhs by CBI officers and the said amount is not belonging to him, but it belonged to his maternal uncle Pampa Naik. Similarly, the evidence of PW.70 Sri. B.Pampa Naik, the brother-in-law of accused No.1 is looked into, in his evidence, he has stated that his father had 6 sons and 3 sisters. In the year 1983, his father was owning 83 acres 82 cents of land situated at Panubhaghatta Tanda, Harapanahalli, Davanagere District (Now Bellary District). Out of 6 brothers, 4 of them are looking after the agricultural, his younger brother Sri. Kuber Naik is working in APMC as Secretary and his another brother Sri. Jagadish Naik is working as Contractor in Mysuru and another brother Sri.H.Banarji is the Doctor, practicing in Bengaluru. Accused No.2 has studied upto 7th standard and she is the housewife.
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109. In his evidence, he further stated that out of the 83 acres held by their family, 4 acres was sold to one Sri.T.Shivappa of Garaparalli, for a consideration of Rs.26 lakhs in the year 2011, initially, he had executed Agreement of Sale in that regard. After payment of Rs.25.50 lakhs by the purchaser Sri.T.Shivappa, no Sale Deed was executed. Out of the total sale consideration amount of Rs.26 lakhs, an amount of Rs.25.50 lakhs consisting of 1000 and 500 currency notes, received by him by way of cash from Sri.T.Shivappa was handed over to his sister accused No.2 for the purpose of purchasing house for his younger brother Sri.H.Banarji in Bengaluru.
110. Therefore, on going through the evidence of these three witnesses, it is noticed that they claim the seized amount of Rs.56,82,000/- was given to accused No.2 for temporary purpose to purchase the property at Bengaluru and the said amount was collected by selling the 4 acres of land to one Sri.Shivappa and out of the agricultural produce. But, to substantiate the said assertion, there is no convincing and acceptable evidence. Admittedly, PW.19, 68 and 70 being the closest relatives of the accused Nos.1 and 2, they are found to be interested witnesses and it appears that they are trying to safeguard and protect the accused persons.
111. It is noticed that, PW.68 has not stated anything as to source of the said seized amount and the purpose for which the said amount was given, except stating that the same belongs to his maternal uncle 114 Spl.CC.187/2014 Pampa Naik. PW.19 and PW.70, though stated as to payment of the said amount to their sister, the accused No.2, for purchase of the property at Bengaluru, there is no evidence to support the same. It is noticed that PW.19, during his cross-examination admitted the suggestion that 4 acres of land was sold by his father to Sri.Shivappa, for Rs.26,50,000/-. On the other hand, CW.70 Sri. Pampa Naik, who is the brother of PW.19, deposed that he executed the Agreement of Sale in favour of Sri.T.Shivappa and no Sale Deed was executed in that regard. Therefore, there is clear contradiction in the evidence of PW.19 and PW.70 regarding sale of 4 acres of land. No where in the evidence, PW.19 has stated as to execution of Sale Agreement in favour of T.Shivappa by himself and his brothers. In fact, it is clear that the said land was not at all sold in favour of Sri.T.Shivappa, under the registered Sale Deed. It is also noticed that there is inconsistency as to purpose of the alleged sale of the property. PW.19 in his evidence stated that the said property was sold for the purpose of purchasing the property in his name and in the name of his other brothers. Whereas, PW.70 in his evidence stated that it was for purchasing the house for his younger brother PW.19.
112. Along with their evidence, now, the original Sale Agreement stated to be entered with Sri.T.Shivappa, which is produced by PW.19 (found in Ex.D.20) is looked into, it gives another version. As per the said document, the stamp papers were taken in the name of PW.19 and 115 Spl.CC.187/2014 all the sons of Late.Sri.B.H.Hanuma Naik, executed the un-registered Agreement on 10.02.2010 agreeing to sell the 4 acres of land in Sy.No.97B of Shringrihalli Village, Arasekere Village of Harapanahalli Taluk for Rs.26,50,000/-. But, either PW.19 or PW.70 have stated as to execution of the Sale Agreement by them along with their other brothers. PW.19 has not even stated as to purchase of the Stamp Paper by him for execution of the Sale Agreement as the said Sale Agreement reveals the name of PW.19 as purchaser of the Stamp Papers. Further, it is also to be noted that the sale Agreement is only unregistered Sale Agreement and in pursuance of which, even, the registered Sale Deed was also not executed. The reason for non-execution of the registered Sale Deed in pursuance of the Sale Agreement is not stated by them. It is also noticed that in the said Sale Agreement, the possession was also stated to be given to the proposed purchaser Sri.T.Shivappa, but the said agreement itself is unregistered Sale Agreement. Therefore, it appears that only for the purpose of this case, such agreement has been created. Even, the accused Nos.1 and 2 have not opted to examine Sri.T.Shivappa in that regard. Therefore, the contention of the accused that Sri. Pampa Naik, paid the part of the sale consideration of the sale of the property in Sy.No.94/B 4 acres held in the name of Dr.Banarjee (PW.19) cannot be accepted.
113. So far as the payment of agricultural income by Sri. Pampa Naik to accused No.2 as stated in I to VI 116 Spl.CC.187/2014 statement of accused No.1 is analyzed, again, there is no any acceptable and convincing evidence. No doubt, the documents produced before the court by PW.19 reveal that the father of the accused No.2 had vast agricultural land. But, the contents of genealogy, property list standing in the name of the family members, RTCs and bills produced are analyzed, it appears that the wife and sons of Sri. Hanuma Naik are enjoying the property separately as property stands in their names separately and even, bills produced also reveal the said fact. Absolutely, there is no evidence to show that Sri. Pampa Naik had paid the agricultural income in favour of accused No.2 for temporary purpose for purchasing the property as stated by him. Even, accused No.1 in his I to VI Statement had not stated the purpose for which his brother-in-law Sri. Pampa Naik had paid the amount. Though some documents viz., Profit and Loss Account and Ledger Accounts are produced before the court, they do not support the payment made by Sri. Pampa Naik as stated.
114. At this juncture, it is pertinent to note that the brothers of accused No.2 contended that the said amount was given to accused No.2 for temporary purpose for purchasing the property. But they never revealed the time of payment, mode of payment and amount paid with clarity. It is also to be noted that the alleged Agreement was dated 10.02.2010 under which a sum of Rs.10 lakhs was stated to be paid in cash and the endorsement made in the said Agreement also reveals that a sum of Rs.8 117 Spl.CC.187/2014 lakhs was paid on 22.01.2011 and Rs.8,50,000/- was paid on 18.08.2011 by the proposed purchaser. Such a huge amount was stated to be given to accused No.2 for temporary purpose and the said amount is kept in cash. It is unbelievable that such huge amount was kept in cash that too having the Bank Account in their name. A prudent person will not keep such huge amount in cash for such a long period. It is needless to say that, even if the said amount is kept in the Bank, that can be withdrawn at any point of time when need arises. Therefore, the keeping of such huge amount in cash is also not acceptable. Absolutely, there is no convincing and acceptable evidence to accept that such huge amount was paid by Sri. Pampa Naik to accused No.2 to keep the said amount in cash. Added to that, even, the RTCs pertaining to the properties produced before the court are looked into, some of the said properties are also found to be mortgaged for huge amount. Such being the case, if the agricultural produce are sold out, the amount will be utilized for repayment of the loan and not for keeping the cash in hand. Therefore, viewed from any angles, it cannot be accepted that the seized amount of Rs.56,82,000/- represents the agricultural income of Hindu Undivided Family headed by Sri. Pampa Naik and also the sale consideration of the sale of the property in Sy.No.97B as stated in I to VI Statement filed by accused No.1. It is also pertinent to note that though the accused have contended they have received such huge amount from the proposed purchaser, they have not opted to 118 Spl.CC.187/2014 examine him before the court to substantiate the source of the said amount.
115. At this stage, it is pertinent to note that PW.70 Sri. Pampa Naik, has filed application seeking release of the said amount in his favour as it belongs to him. But, the said application was dismissed by this court by detailed order dated 21.06.2013. Against the said order, Sri. Pampa Naik has filed Criminal Revision Petition in Crl.R.P.No.671/2013. But, he has withdrawn the said Crl. Petition and the same was dismissed as withdrawn. Thereafter, he has not claimed the said amount. It is also to be noted that the IO has filed petition under Section 3 of the Criminal Law (Amendment) Ordinance, 1944 read with Section 5(6) of the PC Act, 1988 as per Crl. Misc.Petition No.463/2016 and in the said petition, this court was pleased to pass an interim order of attachment dated 23.11.2016 and in the said petition also, he has not claimed the said amount. Therefore, there remains no doubt that the said seized amount belongs to accused No.1 himself and the accused persons have made all their futile effort to escape from the ill-gotten money possessed by them. Therefore, the seized amount of Rs.56,82,000/- has to be considered as an asset of the accused No.1 and the IO has rightly taken the said amount as asset of the accused No.1 at the end of the check period, which is liable to be accepted.
116. Therefore, considering all the above aspects in detail meticulously, this court is of the considered view 119 Spl.CC.187/2014 that the value of the assets at the end of the check period is accepted as under;
Sl.No. Particulars Value Accepted
1 Immovable Property 1,98,57,900.00
2 Movable Property 10,88,310.00
3 Vehicles 5,30,215.00
4 Bank Balance 22,33,889.00
5 Cash Seized 56,82,000.00
Total 2,93,92,314.00
117. Now, the Statement C i.e., income during check period is analyzed, the prosecution has taken Rs.83,03,061/- as total income of the accused No.1 during the check period under 14 heads including the income of his wife the accused No.2 from her business, as shown in the separate table described supra. On hearing the argument and the chart produced on behalf of the accused, it is clear that the income shown in Item Nos.2 to 12 and 14 mentioned in the table are not disputed by the accused and they accept the said income as shown by the IO. Therefore, there is no need of considering the evidence with regard to the said items. However, the accused have disputed the income shown in Item No.1 and 13 and they have also shown additional income under 5 heads in addition to the various heads shown by the prosecution and claimed total income of Rs.1,22,10,897/- as against Rs.83,03,061/- as shown by the prosecution. Hence, the accused are claiming additional income of Rs.39,07,836/-.
118. It is also noticed that, though in the chart submitted, the accused have disputed item No.1, the net 120 Spl.CC.187/2014 salary of accused No.1, contending that the amount of bonus and other cash incentives earned by accused No.1 during check period has not been included, but during the course of argument as well as in the written arguments, they admitted the net salary of accused No.1 at Rs.17,13,385/- as put up by the prosecution and in totaling the total income also, the same amount has been considered by the accused themselves. Therefore, there is no dispute as to net salary of accused No.1 during check period at Rs.17,13,385/-. In that regard, even, there is evidence of PW.9 and the certified copy of the salary details of accused No.1 from October, 1998 to January, 2012 has been produced as per Ex.P.167 which reveal the gross salary of accused No.1 at Rs.31,52,488/- and net salary of Rs.17,13,385/- which is not disputed. Therefore, the net salary of accused No.1 at Rs.17,13,385/- is to be accepted.
119. The accused have disputed the rental income as shown in Item No.13. The prosecution has shown the rental income at Rs.27,20,900/- and whereas, the accused claimed it at Rs.33,52,950/- and thereby the accused are claiming additional rental income of Rs.6,32,050/-. In this regard, the learned counsel for the accused has given details in the written argument to claim such additional income.
120. On going through the written argument, filed on behalf of the accused, it is clear the basing on the evidence of PW.31 Sri. Prabhakar, PW.28 Somashekhar Raju, PW.25 Jayakar Shetty and PW.21 Amar Magaji, the 121 Spl.CC.187/2014 accused are claiming additional income of Rs.30,500/- as additional rental and rent deposit income. Similarly, in view of the tenancy of CW.34 Sri. Anand Swaroop and CW.27 Sri.Somasundaram J, the accused are claiming total rental and rental deposit income at Rs.9,57,550/- as against the rent and rental income of Rs.3,56,000/- calculated by the IO and thereby, the accused are claiming additional income of Rs.6,01,550/-. Therefore, the accused are claiming additional rental and rental deposit income of Rs.6,32,050/- (Rs.30,500 + Rs.6,01,550/-) and in all, claiming Rs.33,52,950/- as against the income of Rs.27,20,900/- shown by the prosecution. No other tenancy, the rental and rent deposit income is disputed.
121. In the light of the said contention of the accused, the materials available on record are analyzed, the prosecution has examined Sri. Prabhakara, who was the tenant under accused No.2 in respect of 3 rd Floor of the premises bearing No.30, 2nd Cross, Subbanna Garden, Vijayanagar, Bengaluru as PW.31 and through him, got marked the original rent agreement dated 03.03.2011 as per Ex.P.128. He in his evidence specifically stated that he had paid security deposit of Rs.60,000/- which is repayable at the time of vacating and in the year 2010, the rent was Rs.4,000/-, in 2011 it was Rs.4,300/- and in 2012 it was Rs.4,500/- and in all he had paid Rs.91,000/- as rent from 2010 to 2012.
122. If the above evidence is analyzed, as submitted by the learned counsel for the accused, it is 122 Spl.CC.187/2014 clear that PW.31 had paid deposit of Rs.60,000/- and rent of Rs.91,000/- in all from 2010 to 2012 and in all, Rs.1,51,000/-. In the written argument, the learned Senior Public Prosecutor has shown the said amount at Rs.1,41,000/- including the advance amount. There is no dispute that PW.31 was the tenant under the accused No.2. The contents of Ex.P.128 is analyzed, the Rent Agreement was entered into on 03.03.2011 and the Rental Agreement was for 11 months from 10.02.2011. The rent agreement is not in dispute. The rental agreement reveals that a sum of Rs.60,000/- was paid as rent deposit and monthly rent of Rs.4,300/- was fixed for the year 2011 and the tenant has agreed to pay the enhancement of Rs.300/- every year. The rent agreement does not refer the tenancy for the year 2010. However, the evidence of PW.31 reveals that he was tenant in the year 2010 also and he was paying rent of Rs.4,000/-. If we count the rent amount as per the rent agreement till end of January, 2012, definitely, it amounts to more than Rs.91,000/-. However, PW.31 has specifically stated that he had paid Rs.91,000/- as rent amount. Such being the case, as submitted by the learned counsel for the accused, the rental and rent deposit income from PW.31 has to be calculated at Rs.1,51,000/- and not Rs.1,41,000/- as calculated by the IO. Therefore, a sum of Rs.10,000/- is to be added to the income of the accused at the end of the check period.
123. Basing on the evidence of PW.28, the accused are claiming additional income of Rs.16,000/- towards 123 Spl.CC.187/2014 rental income from PW.28 contending that the prosecution has shown rental income and rent deposit at Rs.2,62,000/- and whereas, the evidence of PW.28 reveals payment of total amount of Rs.2,78,000/- and thereby, there is a difference of Rs.16,000/-. But in this regard, the argument notes filed by the prosecution is analyzed, the prosecution is not claiming Rs.2,62,000/- as rental income from PW.28, but it is claiming Rs.3,00,000/- towards rental and rent deposit income. It is not understood on what basis the accused is claiming that the prosecution is claiming rental income at Rs.2,62,000/- as mentioned in the written argument so as to claim additional income of Rs.16,000/-. In this regard, the learned counsel for the accused could not convince this court.
124. Now, the evidence of PW.28 Sri.Somashekhar Raju, is looked into, in his evidence, he has stated that from 2006 to 2011, he was a tenant under accused No.2 in respect of the Ground Floor of the premises No.31, 2 nd Cross, Kumara Garden, Vijayanagar, Bengaluru. It is noticed that the xerox copy of the Rental Agreement dated 26.09.2010 entered into between accused No.1 and PW.28 was produced, but the same was not marked as exhibit as it is only xerox copy. PW.28 further deposed that he had paid security deposit of Rs.50,000/- which was repaid at the time of vacating. In the year 2006, the rent was Rs.3,200/-, in the year 2007, the rent was Rs.3,300/-, in 2008, it was Rs.3,400/-, in 2009, it was Rs.3,700, in 2010, it was Rs.4000, and in 2011, it was 124 Spl.CC.187/2014 Rs.4,200. In all, he had paid 2,28,000/- as rent from 2006 to 2011. During cross-examination on behalf of the accused, he has stated that he vacated the premises during 2013. Therefore, if we look into the evidence of PW.28, it is clear that he had paid Rs.50,000/- as deposit and Rs.2,28,000/- as rent from 2006 to 2011. Such being the case, it is clear that PW.28 had paid in all Rs.2,78,000/- but the prosecution has taken income at Rs.3,00,000/- as rental income. Therefore, the IO has taken income of Rs.22,000/- more than what was actually stated by PW.28. Therefore, the contention of the accused that Rs.16,000/- is to be added to the income cannot be accepted.
125. The accused have claimed additional income of Rs.4,100/- towards rental income from PW.25 basing on his evidence contending that the prosecution has shown rental and rent deposit at Rs.1,39,000/- and whereas, the evidence of PW.25 reveals payment of total amount of Rs.1,43,100/- and thereby, there is a difference of Rs.4,100/- and that has to be added to the income of the accused. But in this regard, the argument notes filed by the prosecution is analyzed, the prosecution is not claiming Rs.1,39,000/- as rental income from PW.25, but it is claiming Rs.1,43,100/- towards rental and rent deposit income. It is not understood on what basis the accused is claiming that the prosecution is claiming rental income at Rs.1,39,000/- as mentioned in the written argument so as to claim additional income of Rs.4,100/-.
125 Spl.CC.187/2014
126. Now, the evidence of PW.25 Sri. Jayakar Shetty, is analyzed, in his evidence, he has stated that since 2010 he was residing in the house of accused No.2 at No.31, First Floor, 2nd Cross, Subbanna Garden behind BTS Garage, Vijayanagar, Bengaluru. During 2010-2011, he was paying Rs.4,300/- as rent per month. During 2011-12, he was paying rent of Rs.4,500/- per month. During the said period, he had paid total rent of Rs.83,100/- and paid advance money of Rs.60,000/-. It is noticed that the xerox copy of the Rent Agreement dated 16.06.2010 entered into between accused No.1 and PW.25 was produced, but the same was not marked as exhibit as it is only xerox copy. During cross- examination on behalf of the accused, he has stated that still he is residing in the same premises and advance money of Rs. 60,000/- shall have to be returned at the time of vacating. Therefore, on going through the entire evidence of PW.25, it is clear that he had paid Rs.1,43,100/- towards rent and security deposit. The very same income is found to be taken by the prosecution. Therefore, the claim of the accused that Rs.4,100/- has to be added to the income cannot be accepted.
127. The accused have claimed additional income of Rs.400/- towards rental income from PW.21 basing on his evidence contending that the prosecution has shown rental and rent deposit at Rs.3,39,000/- and whereas, the evidence of PW.21 reveals payment of total amount of Rs.3,39,400/- and thereby, there is a difference of 126 Spl.CC.187/2014 Rs.400/- and that has to be added to the income of the accused. In this regard, the argument notes filed by the prosecution is analyzed, it is clear that the prosecution has shown Rs.3,39,000/- as rental income from PW.21 at the end of the check period including the advance amount.
128. Now, the evidence of PW.21 Sri. Amar Magaji, is analyzed, in his evidence, he has stated that since 2009 he has been residing as a tenant in the premises of accused No.2 situated at 2nd Floor No.104, 3rd Cross, Telecom Layout, KP Agrahara, Vijayanagar, Bengaluru and during 2009-10, he was paying rent of Rs.8,000/- per month, during 2010-11, he was paying rent Rs.8,400/- per month, during 2011-12 he was paying rent of Rs.8,800/- per month. During the said period, he had paid total rent of Rs.2,14,400/- and paid the advance amount of Rs.1,25,000/-. The rent Agreement dated 03.03.2011 entered into between accused No.2 and PW.21 is produced as per Ex.P.108. During cross- examination on behalf of the accused, the said witness has admitted that advance money of Rs.1,25,000/- shall have to be returned at the time of vacating. Therefore, on going through the entire evidence of PW.21, it is clear that he had paid Rs.3,39,400/- towards rent and security deposit. Therefore, the said amount has to be considered as income at the end of the check period. Therefore, the contention of the accused that the income of Rs.400/- is to be added is accepted and rental income is taken at Rs.3,39,400/- as against Rs.3,39,000/-.
127 Spl.CC.187/2014
129. On going through the charts, argument notes submitted on behalf of both the parties and material on record, it is noticed that the prosecution has shown rent and rental income of Rs.94,000/- in favour of accused No.1 from CW.34 Sri.Anand Swaroop and Rs.2,62,000/- from CW.27 Sri. Somasundar J. On the other hand, the accused is claiming rent and rental deposit of Rs.5,79,800/- and Rs.3,77,750/- respectively from them. Therefore, it is clear that the prosecution has shown rent and rental deposit income from these two tenants at Rs.3,56,000/- and the accused has claimed Rs.9,57,500/- and thereby, the accused are claiming additional income of Rs.6,01,550/- during the check period.
130. In this regard, it is pertinent to note that the prosecution has shown the said two witnesses as CW.34 and CW.27, but has not opted to examine the said witnesses before the Court. But, it is interesting to note that just because the prosecution has not examined the said witnesses on its behalf, it does not mean that the additional income claimed by the accused is to be accepted. Admittedly, CW.34 and CW.27 were the tenants under the accused persons and according to them, the prosecution has shown less income from them and they are claiming more income. Therefore, one thing is clear that whatever income shown by the prosecution is the income known to the prosecution. Since the accused is claiming more income, the burden is on the accused to show that they have received more rental and 128 Spl.CC.187/2014 deposit income from the said tenants than what is shown by the prosecution. If the accused did not establish the said additional income which is known to them only, the income shown by the prosecution known to it is to be accepted. Therefore, when the accused have claimed additional income than shown by the prosecution, the burden is on the accused to establish the same as it is within their personal knowledge and burden of proof lies on them to establish the same. In this case, though the prosecution has not examined the said witnesses, the accused could have examined them to establish the additional income as contended. Therefore, the claim of the additional income of Rs.6,01,550/- of the accused in respect of the rental income as stated by them cannot be accepted as the said additional income known to them is not proved by them.
131. Therefore, considering all the above aspects, this court is of the considered view that the accused have established the additional income of Rs.10,000/- from PW.31 and Rs.400/- from PW.21 and that has to be added to the rental income of Rs.27,20,900/- as calculated by the IO and thereby, the rental income is to be taken at Rs.27,31,300/-.
132. As already stated, the accused have claimed additional income under 5 heads as under;
Sl. Particulars Additional
No. income claimed
1. Rental advance received from the 9,15,000.00
tenants during check period
129 Spl.CC.187/2014
2 Value of the Gifts received by the 8,50,000.00
accused No.2
3. Loan availed by accused No.2 2,60,786.00
from State Bank of Hyderabad
4. Lease Advance returned by PW.59 1,00,000.00
during check period.
5. Loan credits declared by accused 11,50,000.00
No.2 in her Income Tax Returns
Total 32,75,786.00
133. The accused in their written argument
contended that they had let out their properties
consisting of 13 portions to various tenants and these details were furnished by the prosecution through PW.19, 21 to 25, 28, 31 and 63. The tenants had totally paid Rs.9,55,000/- as security deposit to them. However, the prosecution confirmed that the accused No.1 had received Rs.9,15,000/- as advance from the tenants and the said rent advance deposit was not taken in computing the income as per statement C and that has to be added as income during the check period. On the other hand, the prosecution has contended that the said rent advance amount is already included in the rental income of Rs.27,20,900/- as shown in Item No.13 of the Statement C. In this regard, on going through the evidence of the tenants i.e., PW.19, 21 to 25, 28, 31, 63 and also the documents available on record, it is clear that the rent advance/ security deposit paid by the tenants is already included in the rental income shown by the prosecution. Therefore, adding of the rental advance of Rs.9,15,000/- again does not arise. Therefore, since the security deposit is already included in the 130 Spl.CC.187/2014 rental income i.e., in item No.13, the contention of the accused that security deposit of Rs.9,15,000/- to be added cannot be accepted.
134. The accused have sought for adding Rs.8,50,000/- as value of the gifts received by accused No.2 as per her declaration in the income tax returns filed by her and accepted by the Income Tax Department. Relying on Ex.P.113, the accused have contended that accused No.2 in her Income Tax Returns for the assessment year 2007-08 on 24.02.2009 declared her income from the sale of textiles, job work and stitching charges. In the balance sheet enclosed along with said return submitted, accused No.2 has declared the gift of Rs.8,50,000/- received from her parents. The Income Tax Department accepted her returns. However, the value of the gift of Rs.8,50,000/- received by accused No.2 from her parents which was declared in the Balance Sheet has not been considered as income of accused No.2 during the check period. Since the said gift has been declared before the Income Tax Department, that has to be accepted and to be considered as income during check period. But, in this regard it is pertinent to note that though such contention was taken by the accused, they have not placed any evidence so as to take the said amount as income of the accused during check period.
135. No doubt, as found from the Balance sheet annexed to Ex.P.113, the accused No.2, in her Profit and Loss A/c. for the year ended on 31.03.2007, had shown Rs.8,50,000/- as gift from parents. But, only on that 131 Spl.CC.187/2014 basis, it cannot be accepted that the same is to be taken as income of the accused during check period. The accused have not given any details of the said gift what are the gift item and when it was given. Burden is on the accused persons to establish the same as it is within their personal knowledge. Though they have taken such positive contention, they have not opted to place any evidence in that regard. Even, the brothers of accused No.2 who were examined before the court have not stated anything as to the alleged gift of worth Rs.8,50,000/-. Just because the said amount is declared in the Profit & Loss Account for the year ended on 31.03.2007 by accused No.2 that cannot be considered as an income in the absence of convincing and acceptable evidence. The accused have to prove the same with clear and cogent evidence so as to take the same as income for the relevant years. But as already stated, absolutely there is no convincing and acceptable evidence to show that on amount of Rs.8,50,000/- as income of the accused during the check period. No material is produced to substantiate the said contention. The accused persons have not entered into the witness box to substantiate the same, though burden lies upon them to prove the said additional income which is not known to the prosecution. Therefore, under these attending circumstances, the additional income of Rs.8,50,000/- as sought for by the accused cannot be accepted.
136. So far as the loan advance availed by accused No.2 from the State Bank of Hyderabad is concerned, the 132 Spl.CC.187/2014 accused have contended that Housing Loan of Rs.10 lakhs was availed by accused No.2 from State Bank of Hyderabad and the same has been treated as income of the accused during check period. Further, repayment of the said housing loan by accused No.2 during the check period was taken at Rs.2,68,921/- as expenses under Statement D. By this type of computation, it is indirectly computed the liability towards the said Housing Loan as on 02.02.2012 at Rs.7,31,059/-. However, Ex.P.95 Housing Loan Statement produced by PW.16 shows the Housing Loan Balance as on 02.02.2012 at Rs.9.91,845/-. Even, PW.16 in his evidence deposed as to due amount of Rs.9,91,845/- as on 02.02.2012. Therefore, the prosecution has erroneously calculated the liability at Rs.7,31,059/- instead of Rs.9,91,845/- and therefore, the difference amount of Rs.2,60,786/- to be treated as additional income of the accused. In this regard, the prosecution has contended that the Housing Loan availed by the accused at Rs.10 lakhs from State Bank of Hyderabad is treated as income under Sl.No.9 of the Statement C. Therefore, there is no question of adding the said amount as additional income.
137. In the light of the rival contention, the contents of Ex.P.95 and evidence of PW.16 are analyzed, it is clear that the accused No.2 had availed Housing Loan of Rs.10 lakhs on 10.06.2009 from State Bank of Hyderabad and as on 02.02.2012, the outstanding due was Rs.9,91,845/-. It also reveals that accused No.2 has repaid Rs.2,68,941/- But, on the basis of this, one 133 Spl.CC.187/2014 cannot accept that Rs.2,60,786/- is to be added as income of the accused No.2 in any angle. On the other hand, the IO has rightly taken Housing Loan of Rs.10,00,000/- as income and an amount of Rs.2,68,941/- paid towards said loan as expenditure during the said period. If the liability is more towards the Bank, then, it becomes income of the Bank and not the income of the accused No.2 in any angle. Therefore, the contention of the accused that Rs.2,60,786/- is to be added as additional income of the accused cannot be accepted.
138. So far as the additional income towards lease advance returned by PW.59 during check period is concerned, the accused have contended that the prosecution has considered rent paid by the accused from 01.10.1998 to 31.12.2003 amounting to Rs.3,28,100/- as expense incurred during the check period in statement D. In that regard, the evidence of the landlord PW.59 was also recorded. Relying on the evidence of PW.59, the accused have claimed Rs.40,000/- under Statement A and Rs. 1,00,000/- paid back by PW.59 during the check period as income under Statement C. In this regard, the argument notes filed on behalf of the prosecution is concerned, there is no clarity and the IO has not taken into count the amount paid by PW.59 in favour of the accused during check period as income.
139. With regard to the above aspects, now the evidence of PW.59, who was previously landlord of 134 Spl.CC.187/2014 accused Nos.1 and 2, in his evidence has stated that the accused Nos.1 and 2 were tenants in his house consisting of two rooms situated at No.23, 2 nd Main, 4th Cross, RPC Layout, Bengaluru-40 from 1996 to 2003. It is his further evidence that in the initial period of 2 years, the accused Nos.1 and 2 had taken his house on lease and paid lease amount of Rs.1,40,000/- and thereafter they lived as tenants from 1998 on monthly rent of Rs.3000/- till 2003. Every year, the rent was increased by 5%. It is clear that the accused had given Rs.1,40,000/- as lease amount initially and out of the said amount, Rs.40,000/- was treated as security deposit subsequently towards their tenancy from 1998 to 2003. Therefore, Rs.1,00,000/- out of Rs.1,40,000/- paid towards lease amount has to be treated as income of the accused during the check period. Further, the evidence of PW.59 also reveals that out of the security deposit, she had deducted painting charge of Rs.4,000/- and thereby returned Rs.36,000/- at the time of vacating the premises in the year 2003. Therefore, the said amount of Rs.36,000/- is also to be treated as income of the accused. Therefore, total amount of Rs.1,36,000/- is to be added as income of the accused during check period. Therefore, the contention of the accused in this regard is liable to be accepted. Though the accused have contended that a sum of Rs.40,000/- to be added as income at the beginning of the check period, since Rs.36,000/- out of the said amount has been returned in the year 2003, the same has to be treated as income during the check period. Therefore, Rs.1,36,000/- is to 135 Spl.CC.187/2014 be added as income of the accused during the check period and accordingly, the same is added.
140. The accused have claimed Rs.11,50,000/- as additional income, which is not considered by the IO as the said amount has been declared by accused No.2 in her Income Tax Returns, submitted for the assessment years 2007 to 2012 as loan liability and she has shown Rs.11,50,000/- as loan liability in the returns, submitted for the assessment year 2010-11 for the purpose of investment in assets and the said amount was not taken into count by the IO as income during the check period. But in this regard, it is pertinent to note that again, burden is on the accused to show the loan borrowed and thereby income during the said period as it is within the exclusive knowledge of the accused themselves. No doubt, as found from Ex.D.6 which is the part of Ex.P.117 i.e., Income Tax Returns submitted by accused No.2 for the Assessment Year 2010-11 reveals that, in the Profit and Loss Account for the year ended on 31.03.2010, the accused No.2 has shown Rs.11,50,000/- as loan borrowed. But, it is needless to say that just because the accused No.2 declared the said amount in her Income Tax Returns, that cannot be considered as income of the accused. Since the accused is claiming this amount as additional income, the accused have to prove the source of the said amount. But, the accused have not stated as to from whom, when and how the said loan was borrowed. Absolutely, no evidence was placed by the accused persons to prove the said loan amount.
136 Spl.CC.187/2014 Therefore, the said loan amount as claimed by the accused cannot be considered as additional income during the check period in the absence of any convincing and acceptable evidence. Only on the basis of Profit and Loss Account submitted to the Income Tax Department, cannot be a ground for considering the said amount as income through loan as contended. Therefore, the said claim of the accused to add the additional income to the tune of Rs.11,50,000/- cannot be accepted.
141. Therefore, on analyzing the entire materials placed before this court, this court found that the additional amount of Rs.10,400/- have to be added to the rental income and Rs.1,36,000/- to be added as additional income during the check period. Therefore, a sum of Rs.1,46,400/- to be added to the income of the accused during the check period. Therefore, under Statement C, a total income of Rs.84,49,461/- is to be taken as against Rs.83,03,061/- as calculated by the IO. The accused are able to establish only additional income of Rs.1,46,400/- as against Rs.39,07,836/- claimed by them. Hence, the total income during the check period under Statement C is taken at Rs.84,49,461/-.
142. Now, the Statement D, i.e., expenditure during check period is analyzed, the prosecution has shown total amount of Rs.54,47,661/- as expenditure during check period under 27 heads. On the other hand, the accused having admitted the total expenditure of Rs.31,97,409/- sought for deletion of Rs.22,50,252/- under the said head. On hearing the argument and on 137 Spl.CC.187/2014 going through charts and written argument notes, it is clear that the accused is not disputing the expenditure stated in item No.2 to 8, 10, 13, 15, 20, 22, 25 of the table (Table 11 shown in the charge sheet) and therefore, the oral and documentary evidence in that regard need no much consideration. However, the accused have disputed the expenditure shown in item No.1, 9, 11, 12, 14, 16 to 19, 21, 23, 24, 26 and 27 of the table and sought for deduction of expenditure to the extent of Rs.22,50,252/-.
143. Now the disputed item No.1 of the table with regard to household expenditure is concerned, it is clear that the prosecution has calculated the household expenditure at Rs.10,40,323/- being 1/3rd of the gross salary. On the other hand, the accused have claimed that it should have been Rs.5,71,128/- being 1/3rd of the net salary. It is contended on behalf of the accused that the IO has wrongly calculated the said amount as 1/3rd of the gross salary which is even contrary to the decision of the Hon'ble Apex Court and it should have been 1/3rd of the net salary. In this regard, the learned Senior Public Prosecutor has vehemently submitted that considering the number of family members, lifestyle of the accused persons as revealed from inventory prepared during search, make it clear that the lifestyle of the accused persons required more money and hence, 1/3rd of the gross salary has to be taken into consideration.
144. In this regard, the prosecution has examined Smt.Vedavathi, the Accounts Officer of the BSNL 138 Spl.CC.187/2014 Bengaluru Telecom Exchange as PW.9 and in her evidence, she has specifically stated that as per the salary details of accused No.1, from October 1998 to January-2012, he has drawn Gross Salary of Rs.31,52,488/- and Net Salary of Rs.17,13,385/-. In that regard, through the said witness, the prosecution has got marked the certified copy of the salary details as per Ex.P.167 which reveals the Gross Salary of Rs.31,52,488/- and Net Salary of Rs.17,13,385/- from October, 1998 to January, 2012 received by the accused No.1. The accused has also not disputed the said amount. However, the contention of the accused is that 1/3rd of the Net Salary should have been taken as household expenditure and not 1/3rd of the Gross Salary. In this regard, this court is being guided by the decision of the Apex Court in Sajjan Singh Vs. State of Punjab 1964 AIR 464 and in the light of the said decision, the contention of the accused that 1/3rd of the Net Salary is to be taken into consideration towards household expenditure is to be accepted. No doubt, as submitted by the learned Senior Public Prosecutor, the family of the accused consists of totally 4 members (Accused Nos.1 and 2 + 2 sons) and the inventory produced as per Ex.P.62 reveals many items. But, it is pertinent to note that from the material placed before this court, it is clear that the accused are having income not only from the salary of the accused No.1, but also the rental income and some income of accused No.2 and their son Sri.T.Sanjay. Therefore, as per the decision of the Hon'ble Apex Court and as contended by the accused, 139 Spl.CC.187/2014 the Net Salary is to be taken for determining the household expenditure and not the Gross Salary. Therefore, 1/3rd of the Net Salary is to be taken and not 1/3rd of the Gross Salary, as contended by the learned Senior Public Prosecutor. Therefore, the household expenditure is to be taken at Rs.5,71,128/- being 1/3rd of the Net Salary of Rs.17,13,385/- and accordingly, the said amount is accepted towards household expenditure as against Rs.10,40,323/- as taken by the IO. Hence, a sum of Rs.4,69,195/- is to be deducted and Rs.5,71,128/- only is accepted towards household expenditure.
145. The disputed item No.9-Building Maintenance Expense is analyzed, as per the charge sheet, the IO has calculated the Building Maintenance Expenditure at Rs.9,08,130/-. On the other hand, the accused has contended that the said properties were given on rent and as per the custom in Bengaluru, the maintenance of the property have to be undertaken by the tenants. The prosecution without making any enquiry with the tenants have included maintenance expenses of the let out building as expenses of accused on the basis of the report of PW.1. But, the learned Senior Public Prosecutor has submitted that the building maintenance expenses has to be borne out by the owner only and only painting expenses would be borne by the tenants. Further, nothing was brought out from the mouth of the tenants who are examined before this court regarding payment of the maintenance expenses by them.
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146. In the light of the rival contention, the evidence available on file is analyzed, the prosecution has examined the tenants under accused persons as PW.19, 21 to 25, 28, 31 and 63 and also got marked the Rental Agreement as per Ex.P.108 to 110 and some unmarked xerox copies of the Rental Agreements were also placed before this court. Now, the evidence of the tenants are analyzed, they have not stated anything as to payment of maintenance charges of the building by them except payment of advance and monthly rent. Even during the cross-examination also, no suggestion was put to them regarding payment of the building maintenance by them. Apart from that, even if the contents of the Rent Agreement produced before this court are analyzed, there is no term in the Rent Agreement regarding payment of building maintenance charges by the tenants. As found from the Rent Agreement, the tenants are liable for painting charges and damages caused by them to the structure and not for building maintenance charges. Therefore, the contention of the accused that building maintenance charges were borne by the tenants cannot be accepted. It is pertinent to note that the accused have not disputed the building maintenance charges shown by the IO and they have not stated what was the building maintenance charges incurred by them as it is within their personal knowledge. Therefore, the contention of the accused that the building maintenance charges were being paid by the tenants cannot be accepted. Therefore, the building maintenance charge of Rs.9,08,130/- as 141 Spl.CC.187/2014 calculated by the IO is to be treated as expenditure of the accused persons during the check period.
147. The disputed item No.11 i.e., Rs.12,000/- paid for Bajaj Allianz Policy, standing in the name of accused No.1 is concerned, the prosecution has taken the said payment as expenditure of the accused during the check period. On the other hand, the accused has contented that the said amount has been paid by Hindu Undivided Family of accused No.2 and the said amount cannot be treated as expenditure of the accused. In this regard, the evidence is analyzed, the prosecution has examined PW.33 Sri.V.Chandrashekhar, the then Assistant Branch Supervisor in Bajaj Allianz Life Insurance and got marked the Proposal Form for Life Insurance issued by Bajaj Allianz along with Policy in favour of accused No.1 as per Ex.P.136. In his evidence, he has deposed that the policy holder has taken Unit Gain Policy and paid premium of Rs.12,000/-. Though the accused have contented that the said premium amount was paid by Hindu Undivided Family of accused No.2, absolutely, there is no material to support the said contention. Even, the brothers of accused No.2 who are examined before the court as PW.19 and PW.70 have not stated anything as to payment of premium amount. Therefore, the contention of the accused that the premium amount was paid by Hindu Undivided Family of the accused No.2 cannot be accepted. The IO has rightly taken the said amount as expenditure of the accused during check period.
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148. The accused have disputed item No.12 of the expenditure table regarding payment of premium amount of Rs.25,000/- for Reliance Life Insurance Policy standing in the name of Sri.T.Sanjay. There is no dispute as to premium amount paid, but the accused have contended that the premium was paid by Hindu Undivided Family of accused No.2 and hence the same cannot be considered as expenditure of the accused during the check period. In this regard, the prosecution has examined PW.34 Sri.S.P.Harish, the then Manager of Reliance Life Insurance Company, Bengaluru and through him, got marked the Reliance Life Insurance Police as per Ex.P.138. The said witness in his evidence stated that the policy holder had paid premium of Rs.25,000/- on 18.08.2008. Admittedly, the said policy stands in the name of Sri.T.Sanjay, the son of the accused persons. Absolutely, there is no material before this court to show that the said amount was being paid by the Hindu Undivided Family of accused No.2 as contended by the accused. Even, Sri.T.Sanjay, who is examined before this court as PW.68 has not deposed in that regard and nothing was elicited from his mouth to support this contention of the accused. PW.19 and PW.70, who are the brothers of accused No.2, examined before this court have also not stated anything in this regard. No doubt, during cross-examination, PW.19 had admitted the suggestion that PW.70 Sri.Pampa Naik is taking care of family of accused No.2 and her children for education and all other aspects. But, on the basis of the said evidence, it cannot be accepted that premium amount 143 Spl.CC.187/2014 was paid by PW.70. Therefore, the contention of the accused that the said premium amount has been paid by Hindu Undivided Family of accused No.2 cannot be accepted and the IO has rightly taken the said amount as expenditure of the accused No.1 during the check period.
149. As per the charge sheet, under Expenditure Table in Item No.14, the IO has taken Rs.32,245/- as expenditure towards vehicle insurance for Maruti Zen Car and Honda Scooter belongs to accused No.1. But, the accused have contended that the IO should have taken the said amount at Rs.21,864/- and not Rs.32,245/-. It is contended by the accused that the prosecution adopted the value of the Zen Car of accused No.1 at Rs.4,44,724/- which includes purchase value of Rs.3,71,491/-, Road Tax of Rs.43,079/- and Insurance Premium of Rs.30,154/-. However, PW.12 has deposed that the total amount paid by accused No.1 including insurance amount for purchasing Zen Car was Rs.4,25,105/-. Hence, out of Rs.4,44,724/-, an amount of Rs.4,25,105/- has to be deducted. In the written argument, it is wrongly calculated at Rs.10,381/- but it should have been Rs.19,619/-. But the said contention of the accused is found to be baseless as insurance premium has to be paid every year with regard to the vehicles. In this regard, the evidence of PW.36 to 39 and Ex.P.165 to 169 and Ex.P.173, 176 to 179 are analyzed, they clearly establish the total payment of Rs.32,245/- towards vehicle insurance of Maruti Zen and Honda Scooter as shown in Table 14 of the charge sheet.
144 Spl.CC.187/2014 Therefore, the contention of the accused cannot be accepted. The IO has rightly calculated expenditure of Rs.32,245/- towards the vehicle insurance of Maruti Zen and Honda scooter of accused No.1 during check period and the same is liable to be accepted.
150. The IO has calculated donation amount of Rs.70,000/- under item No.16 of the Expenditure Table. The IO has taken donation of Rs.20,000/- by accused No.1 to SC/ST Employee's Welfare Association Bengaluru on 13.01.2010 and Rs.50,000/- to Sri.Mahisha Mardhini Gadduge Ammanavara Trust, Chamsharu, Brahmavara, on 07.11.2007 and in all Rs.70,000/-. However, the accused have denied the said expenditure and also contended that the prosecution has produced only xerox copy of the donation receipts as per Ex.P.219 and P.184, which cannot be looked into. Hence, the said donation amount has to be deleted from the expenditure column.
151. In support of the prosecution version in this regard, the prosecution has examined PW.41 and PW.53 and got marked copy of two receipts as per Ex.P.184 and
219. PW.41 Sri.Mukund Nayak K., the Honorary President, Sri. Mahisha Mardhini Gadduge Ammanavara Devasthana, Chamsharu, Brahmavara, Udupi District, in his evidence deposed that, accused No.1 has given donation of Rs.50,000/- for renovation of the Devasthanam and identified the copy of the receipt dated 07.11.2007 issued by the said temple authority as per Ex.P.184. The said witness was cross-examined on behalf of the accused and during cross-examination, he 145 Spl.CC.187/2014 has denied the suggestion put to his mouth that accused No.1 had not made any donation and for the amount paid by somebody, they have given receipt in the name of accused No.1. He has also denied the suggestion that without knowing anything, deposing false before the court. No doubt, during the cross-examination, he has stated that at the time of making payment, he was not present and the person who has received the amount in the office has put his signature on the receipt. It is also noticed that only copy of the receipt is produced before the court. However, if the entire evidence of PW.41 is analyzed, it clearly support the version of the prosecution. There are no reasons for PW.41 to depose falsely before the court in that regard. The contention of the accused that for somebody's payment, the temple authorities have given receipt in the name of the accused cannot be accepted. The accused nowhere suggested in clear terms that he has not donated the amount at all to the renovation of the temple. Therefore, in the light of evidence of PW.41, though original receipt is not produced, it is clear as to payment of Rs.50,000/- as donation by the accused towards renovation of the temple. Therefore, the donation of Rs.50,000/- by the accused as put up by the prosecution is accepted.
152. In order to prove the donation of Rs.20,000/- to the SC/ST Employees' Welfare Association, BSNL is concerned, the prosecution has examined PW.53 Sri.Pedda Manjunath, the District President of SC/ST Employees' Welfare Association, Bengaluru Telecom District, Bengaluru as PW.53, who in his evidence stated 146 Spl.CC.187/2014 that the accused No.1 has paid donation of Rs.20,000/- to their Association. The copy of the receipt in that regard is marked as Ex.P.290 subject to objection of the accused. The said witness is cross-examined on behalf of the accused and during cross-examination, he has admitted that apart from furnishing the document, he has no personal knowledge and specifically denied the suggestion put to his mouth that with grudge against accused No.1, he has created the receipt copy and produced the same before the CBI and deposing falsely before the court. He has also denied that he has no knowledge about the receipt of the amount and from whom it is received. His evidence during cross- examination also reveals that the original receipt can be produced before the court and it is maintained in their Association. The entire evidence of PW.53 is analyzed, it support the case of the prosecution as to donation of Rs.20,000/- made by accused No.1. Though the accused has denied the receipt, he has not contended that he has not at all paid the said amount. There are no such grounds made out by the accused so as to hold that Ex.P.219 was created by the witness with grudge against the accused No.1. The entire evidence of PW.53 is analyzed, it inspires the confidence of the court as to payment of Rs.20,000/- by the accused as donation to the SC/ST Employees' Welfare Association as put up by the prosecution. Therefore, considering the evidence of PW.41 and 53 and also the copy of the receipt produced, this court is of the considered opinion that the accused No.1 has paid donation of Rs.70,000/- in all as put up by 147 Spl.CC.187/2014 the prosecution and the same is accepted as expenditure of the accused No.1 during the check period.
153. In item No.17 of the Expenditure Table, the prosecution has taken Rs.1,25,000/- towards expenditure of the accused No.1 to have Regency Club Membership. In support of the said contention, the prosecution has examined PW.40 Sri.M.Chandrashekar, the then Joint Secretary, Regency Institute of Sports and Culture and got marked the Membership Application of accused No.1 and copy of the intimation sent to accused No.1 as per Ex.P.181 and 182. The said witness in his evidence deposed that accused No.1 has paid Membership Fees of Rs.1,25,000/- through Cheque No.278668 of Karnataka Bank dated 21.11.2011. The evidence of the said witness support the case of the prosecution.
154. In this regard, it is pertinent to note that on going through the argument notes, it is noticed that the accused No.1 has not denied his membership in the Regency Club and also payment of Rs.1,25,000/- in that regard. His only contention is that the said amount has been paid by Hindu Undivided Family of accused No.2 and the prosecution has ignored the said fact and taken the said amount as expenditure in Statement D. It is also noticed that in the cross-examination, on behalf of the accused, it is suggested that the persons of the Regency Club have taken somebody's cheque and used it for membership of the accused No.1. The said contention is not found in the argument. When accused No.1 148 Spl.CC.187/2014 admits the Membership, he himself has to pay the Membership Fee also. Though the accused have contended that the said amount has been paid out of the income of the Hindu Undivided Family of accused No.2, absolutely, there is no evidence to support the said contention. The brothers of the accused No.2, who are examined as PW.19 and PW.70 have also not stated anything in this regard. Therefore, the contention of the accused that the said amount has been paid by the Hindu Undivided Family of accused No.2 cannot be accepted. Hence, the amount spent by accused No.1 to acquire the Membership of the Regency Club was rightly taken as expenditure of the accused No.1 during the check period and thereby, the same is accepted as put up by the prosecution.
155. The prosecution has taken a sum of Rs.2,51,128/- in item No.18 as expenditure of accused No.1 towards education expenses of his children. To substantiate the said expenses, the prosecution has examined three witnesses as PW.42, 43 and 45 and got marked Ex.P.185 to 189 and Ex.P.192. PW.42 Sri. Anjanappa, the Superintendent of Bengaluru Institute of Technology, K.R.Road, Bengaluru, in his evidence deposed that as per Ex.P.185, Sri.T.Sanjay had paid Fee of Rs.2,17,910/- and identified the ledger extract of the payment of the year 2005-06 to 2008-09 as per Ex.P.186. On going through the cross-examination of the said witness on behalf of the accused, it is clear that the payment of Rs.2,17,910/- as found in Ex.P.186 is not 149 Spl.CC.187/2014 disputed and the suggestion put to the mouth of the said witness reveals that the said amount was paid by Sri.T.Sanjay. Therefore, it is clear that there is no dispute as to payment of educational expenses of Rs.2,17,910/- during check period towards education of the son of the accused Nos.1 and 2.
156. PW.43, Sri. Rajendra Prasad, the Accounts Officer of the Allianz Business Academy, Bengaluru, in his evidence deposed that the CBI Officer requested him to produce the document pertaining to payment of tuition fee by Sri. T.Sanjay and accordingly, he has produced the document under his letter dated 02.03.2013 as per Ex.P.187 and he has also identified copies of the receipts dated 15.11.2011 and 20.01.2012 for Rs.4,948/- Rs.2,270/- as per Ex.P.188 and P.189 and deposed that as per Ex.P.188 and P.189, a total amount of Rs.7,218/- was paid. Though the learned counsel for the accused has cross-examined the said witness, nothing much was elicited from his mouth. The accused have not disputed the payment of the amount stated in Ex.P.188 and P.189. Therefore, the conjoint reading of evidence of PW.43 and Ex.P.187 to P.189, it is clear that an amount of Rs.7,218/- was paid towards educational expenses of Sri.T.Sanjay.
157. Now the evidence of PW.45 Sri. Mohan Kumar T. the then Admin Manager, Gouri Educational Trust, Chamarajapet, Bengaluru is looked into, the said witness is being examined by the prosecution to prove the educational expenses of Rs.26,000/- incurred towards 150 Spl.CC.187/2014 study of Sri.Indrajeet T, the son of accused Nos.1 and 2. But the said witness has not supported the case of the prosecution and the said witness is treated as hostile by the prosecution. Even during cross-examination, he has denied the statement given to the IO as per Ex.P.192. Therefore, the evidence of PW.45 does not prove the payment of fee of Rs.26,000/- as put up by the prosecution. Be the things as it may, it is pertinent to note that the accused have not disputed the educational expenses of Rs.2,51,128/- as calculated by the IO. The argument notes reveal that the only contention of the accused is that the said amount has been paid by Hindu Undivided Family of accused No.2 and the said fact has been ignored by the prosecution while calculating the expenditure. Therefore, it is clear that the only contention of the accused is that the educational expenses of Rs.2,51,128/- was being paid by Hindu Undivided Family of accused No.2. But to substantiate the said contention, absolutely, there is no convincing and acceptable evidence. No doubt, during cross-examination of PW.19, he has admitted the suggestion that his father had borne out the educational expenses of the children of accused Nos.1 and 2 and also admitted the suggestion that CW.20 Sri. Pampa Naik is taking care of family of accused No.2 and her children for education and all other aspects. But, only on that account, it cannot be said that the educational expenses were being paid by the Hindu Undivided Family of accused No.2 as contended by the accused in the absence of convincing and acceptable evidence in that regard. As already stated, PW.19 and 151 Spl.CC.187/2014 PW.70 are found to be interested witnesses and close relatives of the accused Nos.1 and 2 and only on the basis of the their assertion, the contention of the accused cannot be accepted. Therefore, the educational expenses of Rs.2,51,128/- incurred towards education of the children of accused Nos.1 and 2 is rightly taken as expenditure of the accused No.1 during the check period and the same is accepted.
158. The item No.19 of the Expenditure Table is regarding expenses incurred towards Guitar Class Fee of the son of the accused Nos.1 and 2 Sri.T.Sanjay. The prosecution has contended that the accused No.1 has incurred expenditure of Rs.7,358/- towards Guitar Class Fee of his son Sri.T.Sanjay. To substantiate the same, the prosecution has examined PW.44 and got marked two documents as per Ex.P.190 and P.191 through the said witness. PW.44 Sri.M.S.Raghunandan, who was the Showroom Manager of the Reynold's INC Bengaluru, who in his evidence deposed that the CBI Officer requested him to furnish the documents and payment of fee by Sri.T.Sanjay, for studying music in Reynold's INC Bengaluru and accordingly, he has submitted the documents under covering letter dated 14.05.2012 as per Ex.P.190. He has also identified 14 receipts from 02.07.2010 to 22.08.2011 and the said receipts collectively marked as Ex.P.191. It is specifically deposed by him that total fee of Rs.7,358/- was paid towards learning to play Guitar. During cross-examination on behalf of the accused, the witness has admitted the 152 Spl.CC.187/2014 suggestion that the said amount has been paid by Sri.T.Sanjay for learning Guitar. Therefore, it is clear that there is no dispute as to payment of Rs.7,358/- towards Guitar learning by Sri.T.Sanjay. At this stage, it is pertinent to note that the accused have contended that the said amount was paid by Hindu Undivided Family of accused No.2 and the said fact was ignored by computing the expenditure during the check period and the said amount cannot be considered as expenditure of accused No.1. In this regard, it is pertinent to note that there is no convincing and acceptable evidence to accept that the said amount has been paid out of Hindu Undivided Family of accused No.2 as contended except the assertion of the accused. Therefore, the IO has rightly taken the said amount as expenditure of accused No.1 during the check period and the same is accepted.
159. Item No.21 of the Expenditure Table deals with expenses incurred towards electrical connection and consumption charges. The IO has taken Rs.1,35,066/- towards electric connection and electric consumption charges. On the other hand, the written argument submitted on behalf of the accused reveals that the accused are admitting expenditure of Rs.27,279/- only in that regard and claiming that an amount of Rs.1,07,787/- is to be deducted from the said expenditure. In the written arguments, it is contended by the accused that as per the prosecution, the expenses of Rs.1,35,066/- is comprised of electricity consumption charges of the accused at Rs.71,036/- and Rs.64,030/-
153 Spl.CC.187/2014 towards development charges and deposit paid in respect of 4 residential house properties owned by the accused. As per the evidence of PW.1, he has already valued the property except movable assets found in the house property and hence it is not correct on the part of the prosecution to include Rs.64,030/- again towards development charges and deposit paid to the Electricity Department. Similarly, the electricity consumption charges of Rs.64,030/- is concerned, there are five connections and separate RR Numbers pertaining to property No.91 shown in Ex.P.197 in the name of accused No.1 and out of the 5 connections, one connection W3PH 16714 relates to the house occupied by accused No.1 and other connections relating to the electricity meters used by the tenants. The electricity charges paid for the house of the accused No.1 during the check period comes to Rs.43,757/- only. Therefore, the electrical consumption charges to be restricted to Rs.43,757/- only. On going through the argument notes submitted on behalf of the accused, it is noticed that there is some ambiguity in this regard.
160. In order to prove the electrical connection and consumption charges, the prosecution has examined the witnesses as per PW.48 and PW.49 and got marked the documents as per Ex.P.96, 97 and P.201 to 207. PW.48 Sri. Basavaraj, the then Assistant Executive Engineer (Electrical) BESCOM W3 Sub-Division, Magadi Road, Bengaluru, in his evidence deposed that, the CBI Police Inspector requested him to furnish the documents 154 Spl.CC.187/2014 pertaining to RR Numbers in the name of accused Nos.1 and 2. Through him, the prosecution has got marked the letter written by him as per P.195, the statement relating to RR Numbers of accused No.2 as per 196. Further, the statement pertaining to RR Numbers in the name of accused No.1 is marked as Ex.P.197. It is deposed by him that accused No.2 had paid deposit charges of Rs.18,150/- on 05.09.2009 and she had paid total deposit of Rs.4,019/- as per the payment details mentioned in Ex.P.196. It is his further evidence that accused No.1 has paid development charge of Rs.7,500/- and total deposit of Rs.7,860/- and electricity charges of Rs.1,35,732/- as per Ex.P.197.
161. Further, PW.49 Smt. Subbalakshmi, the Assistant Accounts Officer, BESCOM, in her evidence deposed that CBI Officer requested her to furnish the details of the RR Numbers in the name of accused No.2 and she had submitted the documents under the letter dated 14.06.2013 as per Ex.P.201. The said witness has also identified copy of the Agreement as per Ex.P.202, Sanction Letters as per Ex.P.203 and 204, Feasibility Report as per Ex.P.205, Statement showing payment of Electricity Charges etc., by accused No.2 as per Ex.P.206 and 207. It is further deposed by her that accused No.2 has paid total developmental charges of Rs.5,850/- additional development charges of Rs.9,000/- deposit of Rs.2,480/- electricity charges of Rs.2,056/-, Rs.17,241/-, Rs.14,112/-, Rs.21,524/- and Rs.13,253/- in respect of RR Number pertaining to Door No.30 and Rs.4,020/-
155 Spl.CC.187/2014 towards deposit, energy charges of Rs.32,637/-, Rs.17,554/-, Rs.17,129/- and Rs.19,054/- in respect of RR.Numbers pertaining to Door No.31. On going though the evidence of the witnesses and the concerned documents marked by them, this court found that the expenditure of Rs.1,35,066/- could be accepted as computed by the IO. The contention of the accused that a sum of Rs.1,07,787/- to be reduced cannot be accepted for the reason stated in the written argument. The electric connection and consumption charges and deposit cannot be included in the building expenses. Further, though the accused have contended that they have paid Rs.43,757/- only towards electricity consumption charges during the check period, the same has not been established. The oral and documentary evidence clearly support the expenditure as put up by the prosecution. Therefore, the expenditure of Rs.1,35,066/- towards electric connection and consumption charges as calculated by the IO, is to be accepted and accordingly, the same is accepted.
162. Item No.23 of the Expenditure Table is relating to water and sewage charges. The IO has taken the expenditure of Rs.82,487/- under the said head during the check period. On the other hand, the accused have contended that the expenditure towards water and sewage charges is only Rs.37,028/- and the IO has taken excess amount of Rs.45,459/- under the said head. The accused in this regard contended that the expenses of Rs.82,487/- comprises of Rs.45,459/- towards water 156 Spl.CC.187/2014 connection charges for House Nos.114, 3rd Floor, KP Agrahara, Telecom Layout Bengaluru and Rs.37,028/- towards water consumption charges for the House No.91, 3rd Cross, KP Agrahara, Vijaynagar, Bengaluru, relating to them. It is further contended that since Rs.45,459/- is included in the construction charges of the House No.104, again, adding of the said amount as expenditure is not correct and therefore, the said expenses of Rs.45,459/- is to be deducted. Further, Ex.P.213 to P.216 are not accompanied with the certificate under Section 65-b of the Indian Evidence Act and thereby, the same cannot be relied.
163. In order to prove the expenditure under this head, the prosecution has examined PW.51 Sri. Gopala Gowda, then Assistant Executive Engineer, BWSSB, Bengaluru and got marked documents as per Ex.P.211 to
216. PW.51 in his evidence deposed that the CBI officer had requested him to handover the documents regarding payment of water charges to BWSSB by accused Nos.1 and 2 and accordingly, he had furnished information under his letter dated 21.05.2012 as per Ex.P.211. He further deposed that accused No.2 has paid Development Charge of Rs.43,324/- and water charges of Rs.11,041/- in respect of property No.104, 3 rd Cross, KP Agrahara, Telecom Layout, Bengaluru, bearing RR Number 32272/H for the period from 22.08.2009 to 02.02.2012. He further deposed that accused No.1 has paid water charges of Rs.74,057/- in respect of property No.91, 3 rd Cross, KP Agrahara, Telecom Layout, Bengaluru, bearing 157 Spl.CC.187/2014 RR No. 87247/H60-116 for the period from April, 2003 to 02.02.2012. Accused No.2 has paid water charges of Rs.30,323/- in respect of property No.31, Subbanna Garden, Bengaluru, bearing of RR No.98556/HC52-233 for the period from April, 2003 to 02.02.2012. He has also identified the extract of the Sanction Register as per Ex.P.212 and Ledger Reports as per Ex.P.213 to 216. The evidence of PW.51 and the documents produced support the case of the prosecution. It is pertinent to note that the expenses incurred towards water connection charges cannot be considered in building expenses. Therefore, the contention of the accused that Rs.45,459/- has to be deducted from the expenditure as contended cannot be accepted. No doubt, during cross-examination, PW.51 has stated that the office staff has taken the print out of Ex.P.213 to P.216 from the system and he has not put up certificate on Ex.P.213 to P.216, but only on the said basis, the case of the prosecution cannot be negated. There is clear evidence of PW.51 who is the officer of the Department and furnished the document to the IO. Even, no suggestion was made denying the payment of the water and development charges made by accused Nos.1 and 2. Therefore, considering the entire evidence placed before this court by the prosecution in this regard, this court is of the considered view that expenses of Rs.83,487/- computed by the IO towards water and sewage charges is to be accepted. This court did not find any substance in the contention of the accused so as to reduce Rs.45,459/- from the said expenses. Hence, 158 Spl.CC.187/2014 expenditure of Rs.83,487/- towards water and sewage charges as calculated by the IO is accepted.
164. Item No.24 of the Expenditure Table deals with hand loan given to the colleagues. The IO has shown a sum of Rs.1,20,000/- as expenditure incurred by accused No.1 during the check period by giving hand loan to his colleagues as described in Table 17 of the charge sheet. As per the prosecution, the accused had given Rs.1 lakh to one Sundara Murthy (PW.52), Rs.5,000/- to Sri. Krishnaiah (PW.54), Rs.5,000/- to Sri. Anil Kumar Lakshman Gothekar (PW.55) and Rs.10,000/- to Sri.M.Purushotham, (PW.64) who were his colleagues. On the other hand, the accused have denied the said hand loan, but they have not denied that the said persons are the colleagues of accused No.1. In this regard, the learned counsel for the accused has taken the notice of this court on the evidence of PW.52, 54, 55 and 64 contending that the said witnesses have not supported the prosecution and their evidence does not disclose hand loan stated to be given by accused No.1 and hence, the said expenditure has to be treated as NIL and deserves to be deleted.
165. In order to prove this expenditure, the prosecution has examined the above said four persons as PW.52, 54, 55 and 64. But, on going through the evidence of the said witnesses, it is noticed that the said witnesses have not supported the prosecution case. PW.52 Sundara Murthy, in his evidence deposed that, he knew accused No.1, during 2011, he approached the 159 Spl.CC.187/2014 accused No.1 for hand loan and he told that he was not having amount and requested him to approach Panduranga. Accordingly, he approached Panduranga during July, 2011 and borrowed hand loan of Rs.1 lakh from him. Since the said witness turned hostile, the learned Public Prosecutor has cross-examined the said witness. During cross-examination, in one breath, the witness has admitted the suggestion that during July, 2011, he borrowed a sum of Rs.1 lakh as hand loan from the accused No.1 for his medical expenses and in another breath, he has denied the same and even he has denied the statement given to the IO as per Ex.P.217. If the entire evidence is analyzed, it is not convincing as to the case of the prosecution. It is pertinent to note that as per the case of the prosecution, the land document and blank cheque which were given by the witness were seized from the house of the accused No.1. But the said documents were not tendered to the witness during cross-examination. Though the learned Senior Public Prosecutor has cross-examined the said witness, he could not elicit anything from his mouth so as to prove the payment of Rs.1 lakh as hand loan by the accused. Hence, the prosecution has failed to prove the lending of Rs.1 lakh to PW.52 as contended.
166. Further, evidence of PW.54 Sri. Krishnaiah, is looked into, in his evidence, he has stated that he knew accused No.1, during 2011, he had borrowed Rs.5,000/- and the amount was paid by one Eraiah and he had given the blank cheque to accused No.1 and identified the 160 Spl.CC.187/2014 cheque given by him as per Ex.P.220. He further deposed that the accused No.1 had arranged the loan to him from Eraiah and he had given the amount to accused No.1. Since the said witness did not support the prosecution case, the learned Public Prosecutor has cross-examined the said witness and during cross- examination also he has denied the case of the prosecution as to lending of Rs.5,000/- by accused No.1 in his favour and also denied the statement given by him to the IO, as per Ex.P.221. Though the learned Public Prosecutor has cross-examined the said witness, nothing was elicited from his mouth so as to prove the hand loan stated to be given by accused No.1. During cross- examination on behalf of the accused, he further stated that he had borrowed loan from Eraiah and due to trust, he had given cheque to accused No.1 and he retained it to prevent the misuse. Therefore, on going through the entire evidence of PW.54, it cannot be said that the prosecution has proved the land loan of Rs.5,000/- given by accused No.1 in favour of PW.54.
167. The prosecution has examined Sri.Anil Kumar Lakshman Gothekar, as PW.55, who in his evidence deposed that he knew the accused No.1, during 2011, he requested accused No.1 to help him by giving hand loan of Rs.5,000/- to meet out his urgent needs. On the next date, the accused No.1 arranged the fund from Hemanth Kumar and amount was paid by Hemanth Kumar. He had given blank cheque to accused No.1 and identified the said cheque as Ex.P.222. He further deposed that, 161 Spl.CC.187/2014 accused No.1 had arranged the loan from him from Hemanth Kumar and he gave the amount back to Hemanth Kumar only. Since the said witness has not supported the prosecution case, the learned Public Prosecutor has cross-examined the said witness. During cross-examination also, he could not elicit anything from his mouth so as to prove the land loan of Rs.5,000/- as stated by the prosecution. During cross-examination, he has denied the availment of Rs.5,000/- from the accused No.1 and also statement given to the IO as per Ex.P.223. During cross-examination on behalf of the accused, it is elicited that he had borrowed the loan from Hemant Kumar and due to trust, he had given cheque to the accused No.1 and he retained it to prevent the misuse. Therefore, the evidence of PW.55 is no way helpful to the prosecution.
168. Similarly, the evidence of PW.64 Sri. M. Purushottham, is analyzed, he in his evidence deposed that he knew the accused No.1, who is his colleague, he had not taken any personal loan from accused No.1 for his necessity. He had given two blank cheques to accused No.1, which he has not taken back from him. He identified the said two blank cheques signed by him as per Ex.P.236 and P.237. Since he did not support the case of the prosecution, the learned Public Prosecutor has cross-examined the said witness. During cross- examination also, he has denied the availment of the land loan of Rs. 10,000/- from accused No.1 and also issuance of blank cheques in favour of accused No.1 in 162 Spl.CC.187/2014 that regard. Though the learned Public Prosecutor has cross-examined the witness, he could not elicit anything from his mouth to establish the hand loan as put up by the prosecution.
169. Thus, on going through the evidence of PW.52, 54, 55 and 64, it is noticed that the prosecution has failed to prove the hand loan stated to be given by accused No.1 to his colleagues with clear and convincing evidence. Though the said witnesses were cross- examined, nothing was elicited to accept the hand loan stated to be given by accused No.1 in their favour. Therefore, this court is of the considered view that the prosecution has failed to prove the alleged hand loan given by accused No.1 to his colleagues as contended. Therefore, the expenditure shown in item No.24 of the Statement D cannot be considered as an expenditure of accused No.1 during check period and that has to be deleted.
170. In item No.26 of the Expenditure Table, the prosecution has considered Rs.11,856/- as expenditure of the accused No.1 towards Gym Class charges of his son Sri.Indrajeet T. On the other hand, the accused have denied the said expenditure contending that the said amount has been paid by income of the Hindu Undivided Family of accused No.2 and not by the accused No.1 and the said fact was ignored by the prosecution in computing the said expenditure and thereby, that has to be deleted from Statement D. 163 Spl.CC.187/2014
171. In support of this expenditure, the prosecution has examined one witness as PW.56 and got marked one document as per Ex.P.224. PW.56 Sri. Umesh K. the Senior Personal Trainer, SNAP Fitness, A & A Fitness Training Center, deposed that the CBI asked the Manager to produce the documents and the Manager handed over the sealed cover and he handed over the same to CBI Officer. He has identified the Fee details paid by Sri. Indrajeet Tholasiram and the same is marked as Ex.P.224. By looking into the said document, he deposed that Sri. Indrajeet had paid fee of Rs.11,856/- for using the gym. It is pertinent to note that the accused have not denied the payment of the said amount but their only contention is that the said amount was paid by Hindu Undivided Family of accused No.2. But, absolutely there is no convincing and acceptable evidence to accept the said contention of the accused. Only on the oral assertion of PW.19, who is interested in accused persons, the contention of the accused cannot be accepted. Therefore, the IO has rightly considered the said expenditure as expenditure of the accused No.1 towards the gym class charges of his son. Hence, the said expenditure is accepted.
172. Item No.27 of the Expenditure Table deals with payment for House Rent. The prosecution has contended that, the accused No.1 had spent a sum of Rs.3,28,100/- towards payment for House Rent for the period from 01.10.1998 to 31.12.2003 in respect of House No.23, 2nd Main, 4th Cross, Hampi Nagar, 164 Spl.CC.187/2014 Vijayanagar 2nd Stage, Bengaluru, where he stayed as tenant. In this regard, the accused have contended that they had paid only Rs.2,01,020/- and the IO has taken excess amount of Rs.1,27,080/- under the said head. In this regard, the learned counsel for the accused has relied on the evidence of PW.59, under whom the accused Nos.1 and 2 were the tenants. In this regard, the evidence of PW.59 is analyzed, he has specifically stated that the accused had given security deposit of Rs.40,000/- during the tenancy and approximately, they have given rent of Rs.2 lakhs. PW.1 in his evidence has not stated as to payment of rent of Rs.3,28,100/- as stated by the IO in the charge sheet. Even, during the course of the argument, the learned Senior Public Prosecutor has fairly conceded that the amount stated at Rs.2,01,020/- may be accepted towards payment for House Rent as against Rs.3,28,100/- in the light of the evidence of PW59. Therefore, in the light of the evidence of PW.59, the payment of rent at Rs.2,01,020/- is to be accepted as against Rs.3,28,100/- as shown in the charge sheet. Therefore, a sum of Rs.1,27,080/- has to be deducted from the expenditure towards payment of house rent by accused No.1. Therefore, the expenditure for payment of house rent at Rs.2,01,020/- is accepted as against Rs.3,28,100/-.
173. Thus, for the reasons discussed above in detail and findings given thereon, this court is of the considered view that the expenditure during check period as stated in statement D is to be accepted at 165 Spl.CC.187/2014 Rs.47,31,386/- as against Rs.54,47,661/- as computed by the IO and Rs.31,97,409/- as stated by the accused.
174. Therefore, on analyzing the entire materials placed before this court meticulously, this court has come to the following conclusion with regard to Statements A to D in reference to the computation made by the prosecution as well as the accused.
Statements As per As per the As per the Court
prosecution accused Findings
Statement A Rs.17,79,965/- Rs.18,19,965/- Rs.17,79,965/-
Assets held at the
beginning of the
check period -
Statement B Rs.2,98,19,198/- Rs.97,36,049/- Rs.2,93,92,314/-
Assets held at the
end of the check
period
Statement C Rs.83,03,061/- Rs.1,22,10,897/- Rs.84,49,461/-
Receipt and
Income during the
check period
Statement D Rs.54,47,661/- Rs.31,97,409/- Rs.47,31,386/-
Expenditure during
the check period
Therefore,
1. Assets acquired Statement B (minus) Rs.2,76,12,349/-
during the check Statement A
period.
2. Total Assets and Assets acquired during Rs.3,23,43,735/-
Expenditure the check period +
during the check Statement D i.e.,
period Rs.2,76,12,349/-
+52,00,581/-
3. Likely Savings Statement C (minus) Rs.37,18,075/-
during check Statement D
period
4. Disproportionate Assets acquired during Rs.2,38,94,274/-
Asset of the the check period +
accused. Statement D
(Expenditure during
check period) - Income
during the check period
166 Spl.CC.187/2014
B - A + D - C i.e.,
Rs.2,76,12,349/- (+)
Rs.52,00,581/- (-)
Rs.84,49,461/-
5. In percentage DA x 100 / Income Rs.2,38,94,274/- x 100 /
during check period Rs.84,49,461/- =
(Statement C). 282.79%
Thus, for the reasons discussed above, this court is of the considered view that the prosecution has established that the accused No.1 has accumulated disproportionate asset of Rs.2,38,94,274/- i.e., 282.79% during the check period over and above the known source of his income known to the prosecution. Therefore, on going through the entire materials placed before this court, this court is of the considered view that the prosecution has proved the necessary ingredients to constitute the offence under Section 13(1)(e) of the PC Act, against the accused No.1 beyond reasonable doubt. Therefore, the prosecution has discharged its initial burden to establish the ingredients of the offence of the criminal misconduct of the accused No.1 beyond reasonable doubt. But, only on this account, it cannot be held that the accused No.1 has committed the offence of criminal misconduct under Section 13(1)(e) of the PC Act, unless he is failed to account for such property found in excess. Therefore, the onus shifts on the accused No.1 to establish the 'known source of income' for the disproportionate asset held by him to the extent of Rs.2,38,94,274/-.
175. As already stated, the explanation appended to Section 13(1) defines the term "known source of 167 Spl.CC.187/2014 income" as income received from any lawful source and such receipt has been intimated in accordance with provisions of any law, rules or orders for the time being applicable to the public servant. Therefore, the public servant who is found in possession of disproportionate asset to his known source of income has to show that (a) he had received such excessive amount from lawful source and (b) that the receipt of such excess income has been intimated in accordance with the provisions of any law/ rules or orders for the time being applicable to the said public servant. Therefore, in the present case on hand, as discussed above in detail, the accused No.1 found in possession of disproportionate asset of Rs.2,38,94,274/-to his known source of income known to the prosecution and hence, the accused No.1 has to show the lawful source to receive the said amount and also that he had reported receipt of the said amount to the concerned authority as per law applicable to him. The accused No.1 is bound to satisfy these twine test so as to disprove the case of the prosecution.
176. Admittedly, the accused No.1 was the public servant at the relevant point of time and therefore, he is bound to submit the Annual Assets Report to the authority as to acquisition of either movable or immovable assets in his name or in the name of his family members. But in this case, the accused No.1 has not produced any material before this court to show that he had reported the acquisition of movable and immovable assets to his Department as required at the 168 Spl.CC.187/2014 relevant point of time. It is well settled principle of law through catena of decisions that, the onus of proof resting on the accused is not so onerous as that of the prosecution and his onus will be discharged by proof of balance of probabilities. The Hon'ble Apex Court in CSD Swamy's Vs. The State, reported in 1960 SCR (1) 461 held that ; "Section 5(3) of the Prevention of Corruption Act did not create a new offence, but only laid down a rule of evidence that empowered the court to presume the guilt of the accused in certain circumstances, contrary to the well known principle of criminal law that the burden of proof was always on the prosecution and never shifted on the accused". It is further held that "the legislature, by using the expression "satisfactorily account" in Section 5(3) of the Act, cast burden on the accused not only to offer plausible explanation as to how he came by the large wealth disproportionate to his known source of income but also to satisfy the court that his explanation was worthy of credence. Consequently, cases under the General Law where it had been held that the accused could be exonerated if he offered a plausible explanation could have no application. The expression "known source of income used in that section referred to such sources of income as become known to the prosecution as a result of investigation and could not mean those that were within the special knowledge of the accused and it was no part of the duty of the prosecution to lead evidence in that regard. Where the prosecution fulfilled the conditions laid down by the earlier part of Section 5(3) of the Act, the Statutory 169 Spl.CC.187/2014 presumption had to be raised and it would be for the accused to rebut the same by cogent evidence".
177. Further, our Hon'ble High Court in the case between Babappa Vs. State by Lokayuktha Police, Gulbarga 2010(2) KLJ 1C has held that, expression 'known source of income' refers not to sources known to the prosecution, but to sources known to the accused himself for which, he alone can know all his source of income. PC Act casts the burden on the accused not only to offer plausible explanation as to how he acquired the wealth but also to satisfy the court that his explanation is worthy of acceptance. This burden, can be discharged by the accused by establishing his case by preponderance of probabilities.
178. In view of the principle held in the above decision, now the facts of the present case are analyzed, as discussed above, the prosecution has able to establish the disproportionate asset held by the accused No.1 to the tune of Rs.2,38,94,274/- i.e., 282.79% to his known source of income. Therefore, the statutory presumption has to be raised against the accused No.1 and it would be for him to rebut the same by cogent evidence as to the lawful source of income for the said additional amount which is within his special knowledge and it is no part of the duty of the prosecution to lead evidence in that regard.
179. In this case, though the prosecution has established the disproportionate assets held by accused 170 Spl.CC.187/2014 No.1, to his known source of income known to the prosecution, he has not placed any evidence to prove the lawful source of income for excess wealth possessed by him during the check period. Though the accused No.1 has tried to take assistance of the evidence placed by the prosecution itself, he could not succeed in his effort. The accused No.1 is bound to offer plausible explanation as to how he came by the large wealth disproportionate to his known source of income and also to satisfy the court that his explanation is trustworthy and worthy of credence. But, in this case, the accused No.1 has even failed to offer plausible explanation. The explanation offered by the accused No.1 as to receipt of additional income as put up by him is found to be baseless. Apart from that, even he has not intimated the acquisition of the said assets to the department as required under the Rules applicable to him. Therefore, the accused No.1 could not comply the requirement of 'known source of income' as provided under explanation to Sec.13(1)(e) of the PC Act.
180. Added to the above aspects, it is also to be noted that admittedly, the accused No.1 was in possession of huge cash of Rs.56,82,000/- in his residential premises on 02.02.2012 when his house was searched by the CBI Police. It is highly un-imaginable to keep such huge amount in cash in residence that too without intimating the said amount to the Departmental Authority as required under the Rule applicable. Apart from that, there was no occasion to keep such huge 171 Spl.CC.187/2014 amount in the residence. If at all, the said income is genuine and from the lawful source, the accused No.1 could have kept the same in the bank account which he can withdraw at any time when exigencies arises and that such huge amount also fetch huge interest. The conduct of the accused No.1 keeping such huge amount in cash in the residential premises is very strange and contrary to the conduct of the prudent person. The explanation offered by the accused as to acquisition of additional amount is neither plausible nor satisfactory nor inspiring the confidence of the court. On the other hand, the same is found to be unworthy of credence, totally untrustworthy and after thought.
181. At this stage, it is also pertinent to note that the PC Act was amended w.e.f. 26.07.2018 with regard to various provisions of the said Act. The amendment was also effected in respect of Section 13. Prior to the amendment, under Section 13, there was sub-clause (a) to (e) to clause 1 of Section 13 and there was one explanation. However, after amendment, Section 13(1) has contained only two sub-clauses and it also appended with two explanations. In explanation 2, the expression 'known source of income' was defined as 'income received from any lawful source'. But earlier to the amendment, the known source of income was defined as 'income received from lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant'. But, by virtue of the amendment, intimation of 172 Spl.CC.187/2014 the receipt of such income is departed with. Even if that benefit has to be given to the accused No.1, then also, he has failed to show the lawful sources for the disproportionate assets possessed by him during the check period by giving satisfactory account for the same.
182. Thus, considering entire oral and documentary evidence meticulously under the peculiar facts and circumstances of this case, this Court has no hesitation to hold that the accused No.1 has miserably failed to establish that the additional asset possessed by him to his known source of income is from the known source of income received from lawful source. The accused No.1 has totally failed to account for additional amount amassed by him to his known source of income and thereby failed to discharge his onus towards disproportionate assets possessed by him. Therefore, it is clear that the prosecution has established the criminal misconduct of the accused No.1 beyond reasonable doubt as required under law. Therefore, Point No.2 is required to be answered in the affirmative.
183. So far as accused No.2 is concerned, she is charge sheeted for the offence punishable under Section 109 of the IPC as she being the wife of accused No.1 abetted him to acquire assets by corrupt or illegal means by abusing his official position by purchasing the immovable properties in her name from and out of his ill- gotten income. The learned Senior Public Prosecutor, relying on the decision of the Apex Court, in the case of P.Nallammal Vs. State, represented by Inspector of Police, 173 Spl.CC.187/2014 vehemently submitted that since the accused No.2 had acquired the property in her name out of the ill-gotten money of accused No.1, she is guilty of the abetment of the commission of the offence under Section 13(1)(e) of the PC Act, by accused No.1 and thereby she is liable to be punished under Section 109 of the IPC as abettor. In this case, the evidence on record reveals that the immovable property as well as movable property was acquired in the name of accused No.2. It is specific case of the prosecution that the plot No.104, 3 rd Cross, Telecom CHS Layout, KP Agrahara, Vijayanagar, Bengaluru, measuring about 1200 sq.ft. was purchased from Smt. Jyothi Balakrishna in the name of accused No.2 by accused No.1 and also plot No.30, 2 nd Cross, Subbanna Garden, Vijayanagar Bengaluru, measuring 675 sq. ft. was purchased from Smt. Savithramma, in the name of accused No.2 by accused No.1 and thereafter, the building was constructed in the said plot. Further, the vacant site measuring 30 x 40 sq.ft. bearing No.17 in Sy.No.6 of Subramanyapura Village, Maarasandra, Uttarahalli, Bengaluru was purchased in the name of accused No.2. So far as purchase of these properties are concerned, the accused No.2 has not established any source of income. The source for purchasing the said property as contended by them are found to be baseless and unacceptable. Further, it is not the case of the accused No.2 that the said properties were acquired by her out of her own income. Therefore, the said properties are required to be considered as property earned in her name by accused No.1 himself.
174 Spl.CC.187/2014
184. It is also noticed that accused No.2 was also having Bank Accounts in Karnataka State Co-operative Apex Bank Ltd., RPC Layout Bengaluru and in State Bank of Hyderabad, Vijayanagar, Bengaluru, wherein, she was having an amount of Rs.4,54,239/- and Rs.2,23,972/- and in all, Rs.6,78,211/-. For the said amount also, the accused No.2 has not shown any source of her own. As already stated, the source stated by them is found to be not acceptable. It is pertinent to note that accused No.2 was earning some amount from her business and the same is shown as income in Statement C Column and the benefit of said income was given separately while calculating the disproportionate asset. No doubt, the documents produced before the court reveal that accused No.2 has filed her income-tax returns as per Ex.P.111 to 113, P.116 to 119 and declared her income. But, the said declared income is not sufficient to acquire the said properties. As already stated, there is no acceptable and convincing evidence to show that the properties standing in her name were purchased /acquired out of the funds provided by her parental family. Therefore, under these attending circumstances, it has to be accepted that the properties acquired in her name are nothing but the properties acquired out of the ill-gotten money of her husband. Therefore, by her conduct, she has abetted the criminal mis-conduct of her husband in the matter of acquiring disproportionate assets. Hence, considering all these aspects and the decision of the Hon'ble Apex Court in P.Nallamal's case, this court is of the considered view that the prosecution 175 Spl.CC.187/2014 has proved the act of abetment on the part of accused No.2 in commission of criminal misconduct by acquiring disproportionate assets to the known source of income by accused No.1.
185. At this stage, this court has also considered other various decisions relied by the learned counsel for the accused. In the decision reported in 1979(1) SCC 535 S.P.Bhatnagar Vs. State of Maharashtra, the Hon'ble Apex Court has considered the meaning and ambit of the pres ology 'by corrupt or illegal means or otherwise abusing his position as public servant' used under Section 5(1)(d) of the PC Act, 1947. But on going through the said decision, along with the facts of the present case, this court found that the said decision is not at all applicable to the facts of the present case, so as to uphold the contention of the accused in any angle.
186. Similarly, in the decision of the Hon'ble Apex Court, in M. Krishna Reddy's case and in Krishnanand Agnihotri Vs. State of Madhya Pradesh (1997) 1 SCC 816, the Hon'ble Apex Court held that the burden of showing the particular transaction is benami always rest on the person asserting it to be so and this burden has to be strictly discharged by abusing legal evidence of the definite character which would either directly prove the facts of benami or establish the circumstances unerringly and reasonably raising an inference of the said fact. However, on going through the said decisions and facts of the present case on hand, it is noticed that the said decisions are no way helpful to the accused as the 176 Spl.CC.187/2014 evidence placed before this court and the circumstances established thereby clearly establish that the property purchased in the name of accused No.2 is out of the ill- gotten money of accused No.1. Therefore, the said decisions are of no assistance to the accused persons in the case on hand.
187. This court is also being guided by another decision of the Hon'ble Apex Court in Kedarilal Vs. State of M.P. wherein, it is held, "expression 'known source of income' has two elements: first, income must be received from lawful source and secondly, receipt of such income must have been intimated in accordance with the provisions of law, rules or orders applicable to public servant - Receipt by way of share in partition of ancestral property or bequest under a Will, Marriage Gift or Gifts and Advances from the close relatives would come within the expression 'known source of income', provided that the receipts were duly intimated to the authorities as prescribed." One cannot dispute this principle as to 'known source of income'. However, on going through the facts of the present case along with the said relied decision, this court is of the considered view that the said decision will not come to the assistance of the accused as the Gift or the property acquired in the name of accused No.2 as contended in the present case were not intimated to the Government by accused No.1 as required under law applicable to him. This court is also meticulously considered the judgment of the Hon'ble High Court of Gauhati in Anand Bezbaruah Vs. Union of India and the 177 Spl.CC.187/2014 judgment of the Hon'ble Madhya Pradesh High Court Indore Bench in Suhash Kharate Vs. State of M.P. relied by the learned counsel for the accused. However, on going through the facts of the said case along with facts of the present case, it is clear that the said decisions are not applicable to the facts of the present case in the light of the evidence on record and no assistance to the said decisions could be given to the accused to accept their contention.
188. This court has also considered the relied judgment of the Hon'ble Apex Court reported in (2017) 6 SCC 628 State of Andhra Pradesh Vs. J.
Sathyanarayana. In the said case, it is observed that, "in calculation of the income from the lawful source, the evidence of Income Tax Returns and orders thereon can be relied on". In the present case, it is pertinent to note that the declared income of the accused No.2 and housing loan borrowed by her are considered by the IO as income while computing the disproportionate assets of the accused No.1. The benefit is given to the accused by considering the same as income. Therefore, the said decision is not applicable to the facts of the present case in favour of the accused. This court is also being guided by another relied decision reported in (2006) 1 SCC 420, wherein the accused, on his part satisfactorily established the money and assets recovered belonged to his wife which she has amassed from the business run by her separately. But in the present case on hand, the accused has not established that the money and assets 178 Spl.CC.187/2014 recovered from him standing in the name of his wife is acquired by her separate known source of income. Hence, the said decision cannot be made applicable to the facts of the present case in favour of the accused. Further, this court has also considered the decision of the Hon'ble Apex Court, in Vasant Rao Guhe's case, relied by the learned counsel for the accused. But once again, this court found that the said decision is no way helpful to the defence of the accused under the facts and circumstances of the present case, as in this case, the prosecution has proved the case against the accused No.1 as to his possession of the disproportionate assets to his known source of income.
189. Thus, considering all these aspects in detail very meticulously, this court is of the considered opinion that the prosecution has proved beyond reasonable doubt that the accused No.1 being the public servant, during the check period commencing from 01.10.1998 to 02.02.2012 was found in possession of assets of worth Rs.2,38,94,274/- i.e., 282.79% disproportionate to his known source of income, for which he could not satisfactorily account and thereby committed the offence under Section 13(1)(e) punishable under Section 13(2) of the PC Act and accused No.2 has abetted the commission of the said offence for accused No.1 by acquiring property in her name out of the ill-gotten money of her husband. Accordingly, point Nos.2 and 3 are answered in the affirmative.
179 Spl.CC.187/2014
190. Point No.4: For the reasons discussed in connection with point Nos.1 to 3, this court proceed to pass the following;
ORDER As accused No.1 Sri. Tholasirama, is found guilty of the offence under Section 13(1)(e) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and accused No.2 Smt.H.Sharada, is found guilty of the offence punishable under Section 109 of the Indian Penal Code, acting under Section 235(1) of the Cr.P.C., they are convicted for the said offences.
The bail bonds of the accused Nos.1 and 2 and that of their sureties stand cancelled.
To hear regarding sentence, (Dictated to the Stenographer Gr.I directly on the computer, corrected and then pronounced by me in the Open Court on this the day of 30th December, 2024) (Shridhar Gopalakrishna Bhat) XXI Addl. City Civil and Sessions Judge, & Prl. Special Judge for CBI Cases, Bengaluru.
180 Spl.CC.187/2014 31.12.2024 ORDERS REGARDING SENTENCE In the instant case, the accused No.1 is convicted for the offence under Section 13(1)(e) punishable under Section 13(2) of the PC Act, 1988 and accused No.2 is convicted for the offence under Section 109 of the IPC.
2. Heard the accused Nos.1 and 2 and their learned counsel and the learned Senior Public Prosecutor regarding sentence.
3. The learned counsel for accused Nos.1 and 2humbly submitted that the penal provisions of PC Act applicable in this case is prior to 2014 amendment and the discretion is given to the court in the matter of imposing the sentence of imprisonment ranging from 1 year to 7 years and with fine. It is further submitted that accused No.1 has completed unblemished service and retired from the service. Departmental Enquiry was conducted against him in connection with this matter and 25% of the pension is also reduced. He is senior citizen and suffering from severe health problems and he had stroke in the year 2022. Further, accused No.2 is the wife of accused No.1 and aged about 57 years. She is also facing health issues. In this regard, the learned counsel has filed a memo with medical records of accused Nos.1 and 2. It is further argued by him that accused Nos.1 and 2 are innocent poor persons and they have to look after their family. Further, the accused have faced long trial for 12 years, they have regularly appeared 181 Spl.CC.187/2014 before this court and abide by all the conditions imposed by this court. Accordingly, prayed for lenient view in favour of accused in the matter of sentencing them by exercising judicial discretion in their favour.
4. The accused Nos.1 and 2, who are before the court submitted in the same line as submitted by their learned counsel and prayed for sympathetic approach in their favour.
5. Per contra, the learned Senior Public Prosecutor submitted that the punishment to be imposed shall not be plea bite sentence and it shall serve the purpose for which the punishment to be imposed. The prosecution has proved case against the accused persons beyond all reasonable doubt. The court has to consider the conduct of the accused, gravity of the offence and also its effect on the economic system of the society as well as the society in general. By committing the offence as found in the judgment passed by this court, the accused No.1 and 2 in all accumulated assets of worth Rs.2,38,94,274/- i.e., 282.72% disproportionate to known source of income of accused No.1. The offence committed by the accused requires stringent approach and no lenient view could be taken in their favour as the offence committed by them is having adverse effect on the society. Further, accused No.1 being a public servant, abused his official position, accumulated huge wealth. The sentence to be imposed on the accused shall send a message to the society to avoid the corruption in the society and it shall be proportionate to the offence 182 Spl.CC.187/2014 committed by the accused. Accordingly, sought imposing of the maximum sentence and also for imposing suitable fine by taking into count the worth of the property accumulated by them.
6. As held by Hon'ble Supreme Court in State Vs. Parthiban (2006) AIR SCW 5267, in view of the mandate contained in Section 18 of the Probation of Offender's Act, a convicted accused for the offence under the Prevention of Corruption Act, 1988 is not entitled for the benefit of probation.
7. The Apex Court in K.C.Suran Vs. CBI, Chandigarh, (AIR 2001 SC, 3320) held that "corruption by public servant has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from the gripping, the normal and orderly functioning of the public offices through strong legislative, executive as well as judicial exercises the corrupt public servant could even paralyze the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servant could garner momentum to cripple public institutions. Hence, in corruption cases, the court must take stringent view while awarding the sentence".
8. Having said so, it is needless to say that in the matter of imposing sentence on the accused, this court has to hear the accused person on the sentence consider the aggravating and mitigating factors, the purpose of the 183 Spl.CC.187/2014 punishment being imposed, effects of the offence committed on the society, facts and circumstances of the case under which the offence took place etc.,
9. As already stated, the accused No.1 is convicted for the offence punishable under Section 13(2) of the PC Act. Since the check period is from 01.10.1998 to 02.02.2012, the penal provisions of Section 13 applicable to the accused No.1 is prior to the amendment of 2014 to the PC Act. Prior to the amendment of 2014, the offence under Section 13(a) to (e) was punishable under Section 13(2) with an imprisonment for a term, which shall not be less than 1 year but it may extend to 7 years and shall also be liable to fine. Accused No.2 is convicted under Section 109 of the IPC, for abetting the accused No.1 in committing the offence of criminal misconduct under Section 13(2)(e) of the PC Act. As provided under 109 of the IPC, the abettor shall be liable for punishment provided for the offence, where no express provision is made by the Code for punishment of such abetment. Therefore, in this case, accused No.2 is liable for punishment under Section 109 of the IPC, as abettor. In this regard, this court is also being guided by the decision of the Apex Court in the case of P.Nallammal Vs. State - represented by Inspector of Police, disposed on 09.08.1999. Hence, the accused No.2 is also liable to be punished as that of the accused No.1.
10. The mitigating circumstances expressed by the accused persons are that they are aged persons having health issues, already 25% of the pension of 184 Spl.CC.187/2014 accused No.1 was reduced in the Departmental Enquiry, they have to look after their family, they are innocents, they have faced long trial and also that they appeared before the court regularly without violating any of the conditions. The accused have also produced the copy of the medical records relating to them.
11. The aggravating circumstances are that accused No.1 being a public servant, by abusing his official position, accumulated huge assets to his known source of income, which is affecting the society adversely. The accused No.2, being the wife, abetted the accused No.1 in accumulating the assets in her name from the ill- gotten money of accused No.1.
12. On going through the penal provision of Section 13, it is clear that minimum sentence of imprisonment has been fixed by the Legislation itself. Therefore, the said minimum sentence of imprisonment has to be imposed on the convicted accused and it may extend upto seven years as provided. So far as the fine is concerned, the minimum or maximum fine amount is not fixed and it is given to the discretion of the court. However, Section 16 of the PC Act, specifies as to the matters to be taken into consideration for fixing the fine. As provided under Section 16 of the PC Act, this court has to take into consideration the pecuniary resources or the property for which the accused person is unable to account satisfactorily. In other words, the fine to be imposed should have nexus with the disproportionate asset held by the accused. In this case, the accused No.1 185 Spl.CC.187/2014 is found to be in possession of the disproportionate asset to the extent of Rs.2,38,94,274/- i.e., 282.79% to his known source of income. Some of the immovable properties and the amount in the Bank Account are standing in the name of accused Nos.1 and 2 and huge cash was also seized from their residence. Various movable properties were also found. All these facts to be taken into consideration while imposing the fine. As submitted by the learned Senior Public Prosecutor, it is true that the sentence to be imposed shall not be plea bite in nature and it must serve the purpose of the punishment. The offence committed by the accused is also having its effect on the society. At the same time, the mitigating circumstances are also required to be taken into count.
13. After considering the mitigating and aggravating circumstances found under the facts and circumstances of this case, nature and gravity of the offence, its effect on the society, the purpose of the punishment etc., this court proceed to pass the following;
ORDER Acting under Section 235(2) of the Cr.P.C., the accused No.1 Sri. Tholasirama, S/o. Bodka Naik, is sentenced to undergo imprisonment for a period of 4 years and shall also pay a fine of Rs.80 lakhs/-
(Rupees Eighty Lakhs only) and in default of payment of the fine amount, the accused 186 Spl.CC.187/2014 No.1 shall undergo simple imprisonment for 9 months for the offence punishable under Section 13(1)(e) R/w. Sec.13(2) of the Prevention of Corruption Act, 1988.
Acting under Section 235(2) of the Cr.P.C., the accused No.2 Smt.H.Sharada W/o. Tholasirama, is sentenced to undergo imprisonment for a period of 3 years and shall also pay a fine of Rs.1 Crore 65 lakhs (Rupees One Crore Sixty Five Lakhs only) and in default of payment of the fine amount, the accused No.2 shall undergo simple imprisonment for 9 months for the offence punishable under Section 109 of the Indian Penal Code.
Free copy of this judgment be supplied to the convicted forthwith.
(Dictated to the Stenographer Gr.I directly on the computer, corrected and then pronounced by me in the Open Court on this the 31st day of December, 2024) (Shridhar Gopalakrishna Bhat) XXI Addl. City Civil and Sessions Judge, & Prl. Special Judge for CBI Cases, Bengaluru.
ANNEXURE
LIST OF WITNESSES EXAMINED FOR THE
PROSECUTION:
P.W.1 P. Bhaskaran
187 Spl.CC.187/2014
P.W.2 Prabhugowda N. Patil
P.W.3 L. Gopi
P.W.4 Hombalaiah
P.W.5 C.V. Manjunath
P.W.6 Smt. Jyothi Balakrishna
P.W.7 V.S. Goudar
P.W.8 Smt. Savithramma L
P.W.9 Smt. Vedavathi
PW.10 Arup Jyothi Bharat Kaur
PW.11 Shiva Nanje Gowda
PW.12 Samrat Ashokan
PW.13 N. Mohan
PW.14 Govardhan Bhat
PW.15 Sandeep Gowda
PW.16 Ramesh R. Pulake
PW.17 D.J. Jithendra
PW.18 S. Subramanyam
PW.19 B.H. Banarji
PW.20 Shashikiran M
PW.21 Amar Magaji
PW.22 R. Bhaskar
PW.23 G. Kumar Naik
PW.24 Raghavendra J.G.
PW.25 R. Jayakar Shetty
PW.26 B.V. Kumar
PW.27 B.S. Krishnamurthy
PW.28 Somashekhara Raju
PW.29 C. Srinivasulu
PW.30 Smt. Sudha Ranganath
PW.31 D. Prabhakar
PW.32 N. Sheshadri
PW.33 V. Chandrashekar
PW.34 S.P. Harish
PW.35 M.T. Manchaiah
PW.36 S. Anantha Chandran
PW.37 Prabhakar S. Bapat
PW.38 A.N. Kumaraswamy
PW.39 B. Nagaraja
PW.40 N. Chandrashekhar
PW.41 K. Mukunda Naik
PW.42 Anjanappa
188 Spl.CC.187/2014
PW.43 Rajendra Prasad
PW.44 M.S. Raghu Nandan
PW.45 T. Mohan Kumar
PW.46 P. Anjaneyalu
PW.47 M.R. Byregowda
PW.48 Basavanna
PW.49 Smt. Subbalakshmi
PW.50 Javid Rabbani
PW.51 H.P. Gopala Gowda
PW.52 Sundara Murthy
PW.53 Pedda Manjunath
PW.54 Krishnaiah
PW.55 Anil Kumar Laxman Goppekar
PW.56 Umesh K
PW.57 Subrath Kumar Mahapatra
PW.58 M. Nagendra Naidu
PW.59 Lakshminarasimhaiah
PW.60 K.M. Vishwanath
PW.61 T.S. Umapathy
PW.62 A. Inbuzhagan
PW.63 Smt. Anitha Padam Kothari
PW.64 M. Purushothaman
PW.65 Gowli Basavaraj
PW.66 B.M. Sudhakar
PW.67 D. Channabasappa
PW.68 T. Sanjay
PW.69 T.P. Ananda Krishnan
LIST OF WITNESS EXAMINED FOR DEFENCE:
NIL LIST OF DOCUMENTS EXHIBITED FOR THE PROSECUTION:
Ex.P.1 Valuation Report dt. 8.5.2013 with Annexures
- 20 sheets Ex.P.1(a) Signature of P.W.1 Ex.P.2 Covering letter dt. 17.4.2012 of PW.2.
189 Spl.CC.187/2014 Ex.P.2(a) Signature of PW.2 Ex.P.3 Account Opening Form bearing A/c. No. Ex.P.4 Certified copy of statement of account in respect of Ex.P3 - 9 sheets Ex.P.5 Certificate under Banker's Book of Evidence Act - 9 sheets Ex.P5(a) Signature of PW.2 Ex.P.6 Original account opening form A/c. No. 1591 Ex.P.7 Certified copy of Statement of account in respect of Ex.P6 - 4 sheets Ex.P.8 Certificate under Banker's Book of Evidence Act - 1 sheet Ex.P8(a) Signatures of PW.2 Ex.P9 Agreement to sell dt. 20.11.2008 (Page No.37 to 41 of D15) in favour of A2 Ex.P9(a) Signature of PW.3 Ex.P9(b) Signature of CW-12 (Savithramma) Ex.P9(c) Signature of A2 (H. Sharada) Ex.P10 Original Sale Deed Ex.P10(a) Signature of A2 at last page Ex.P10(b) Photograph of Savithramma Ex.P10(c) Photograph of PW.3 Ex.P10(d) Photograph of son of PW.3 Ex.P11 Original GPA dated 6.11.93 - 4 sheets (page 2 to 5 of D6) Ex.P11(a) Signature of PW.3 Ex.P12 Letter dt. 15.2.2013 of PW.4 to the Investigating Officer - 2 sheets Ex.P12(a) Signature of PW.14 Ex.P13 Certified copy of sale deed dt. 4.12.2008 executed in favour of A2 Ex.P13(a) Signature of PW.4 190 Spl.CC.187/2014 Ex.P14 Certified copy of Sale Deed dated 27.3.2002 executed in favour of A1 by A2.
Ex.P14(a) Signature of PW.4 Ex.P15 Certified copy of GPA dt. 6.1.1993 in favour of A2 - 6 sheets Ex.P15(a) Signature of PW.4 Ex.P16 Certified copy of Sale Deed dt. 11.2.2006 in favour of Smt. Sharada (A2) - 6 sheets Ex.P17 Certified copy of Sale Deed dt. 14.10.1998 executed in favour of A1 for Rs.2,00,000/- Ex.P17(a) Signature of PW.4 Ex.P18 Encumbrance Certificate of Ex.P13 Ex.P18(a) Signature of PW.4 Ex.P19 Certified copy of Encumbrance Certificate (Manual) Ex.P19(a) Signature of PW.4 Ex.P20 Encumbrance Certificate dated 15.2.2013 Ex.P20(a) Signature of PW.4 Ex.P21 Encumbrance Certificate for site No.104 (Manual) Ex.P21(a) Signature of PW.4 Ex.P22 Encumbrance Certificate for site No.104 (Computerized) Ex.P22(a) Signature of PW.4 Ex.P23 Certified copy of EC in the name of A1, Site No.91 Ex.P23(a) Signature of PW.4 Ex.P24 Certified copy of EC in the name of A1, Site No.91 Ex.P24(a) Signature of PW.4 191 Spl.CC.187/2014 Ex.P25 Letter dt. 23.6.1997 of A1 - 1 sheet Ex.P26 Xerox copy of 3 DDs - 1 sheet Ex.P27 Letter dated 3.7.97 of A1 - 1 sheet Ex.P28 Xerox copy of DD for Rs.1,10,000=00.
Ex.P29 Receipt for Rs.1,10,000=00 dt. 3.7.1997
Ex.P30 Receipt for Rs.1,00,000=00
Ex.P31 Certified copy of Possession Certificate
dt. 1.9.1999
Ex.P32 Letter dt. 4.7.2012 addressed to CBI
Ex.P32(a) Signature of G. Babu
Ex.P32(b) Provisional allotment letter Ex.P32(c) Certified copy of sale deed dt. 14.10.98 Ex.P32(d) Certified copy of letter dt. 4.3.2009 of A1 Ex.P32(e) Possession Certificate 1.4.99 certified copy Ex.P32(f) Certified copy of Ledger Extract Ex.P32(g) Certified copy of receipt Ex.P32(h) Certified copy of sale deed dt. 26.8.86 favouring Sujatha Vasudeva -3 sheets Ex.P32(i) Certified copy of Possession Certificate dated 22.1.1997 Ex.P32(j) Certified copy of letter dt. 22.1.2001 of Smt. Sujatha Vasudeva Ex.P32(k) Certified copy of letter dt. 22.1.2001 of Smt. Sujatha Vasudeva Ex.P33 Original sale deed dt. 14.10.1998 in favour of A1- 10 sheets Ex.P33(a) Signature of PW.5 Ex.P34 Original Possession Certificate of Site No.91 Ex.P35 Original Sale Agreement dt. 26.11.2006 in favour of Smt. Sharada - 2 sheets Ex.P35(a) Signature of PW.6 192 Spl.CC.187/2014 Ex.P36 Xerox copy of the sale deed dt. 29.1.2001 in favour of Smt. Jyothi Balakrishna - 3 sheets Ex.P37 Letter dt. 28.5.2012 of AGM, Vigilance, BSNL Ex.P37(a) Signature of PW.7 Ex.P38 S.R. of A1 Ex.P39 Personal file of A1 (47 sheets) Ex.P40 Letter dt. 22.3.2013 of AGM (Vig), BSNL to the Investigating Officer - 1 sheet Ex.P41 Letter dt. 19.3.2013 of BSNL to AGM (Vig) reg. HBA - sanction details - 1 sheet Ex.P41(a) Signature of Accounts Officer Ex.P42 Letter dt. 19.2.2013 of BSNL to AGM (Vig) in respect of Scholarship sanction to A1 Ex.P42(a) Signature of AGM (Welfare) Ex.P43 Letter dt. 19.3.2013 regarding payment arrears - 1 sheet Ex.P43(a) Signature of Accounts officer Ex.P44 Attested copies of Ledger Sheets of the P & T Employees Credit Co-Op. Society - 4 sheets Ex.P45 Letter dt. 7.3.2013 in respect of deposit details of phone - 1 sheet Ex.P46 Attested copies of Ledger sheets, Karnataka Telecom Dept., Co-op. Society - 7 sheets Ex.P47 Land Line Telephone Bill Payment details Ex.P48 Mobile phone bill payment details - 1 sheet Ex.P49 Letter dt. 21.3.2013 of BSNL with month wise payment details - 3 sheets 193 Spl.CC.187/2014 Ex.P50 Attested copy of Extract of BSNL CDA documents - 3 sheets Ex.P51 Letter dt. 22.3.2013 of BSNL with GPF Ledger extract - 14 sheets Ex.P52 Original Search List dt. 2.2.2012 - 3 sheets Ex.P52(a) Signature of PW.10 Ex.P52(b) Signature of PW.62 Ex.P53 BBMP Tax paid receipt - 1 sheet Ex.P54 Original Sale Deed dt. 27.3.2002 in favour of A1 - 5 sheets Ex.P55 The N.I.A.C.L. Policy Schedule - 2 sheets Ex.P56 Immovable property documents such as khata extract, khata certificate, copies of BBMP Receipt, estimation letter, certified copy of Sale Deed etc., - 7 sheets Ex.P57 One bunch containing remittance slip, bill of Griha Vaibhav and other bills - 15 sheets Ex.P58 One bunch containing estimate bill of M/s. Krishnaiah Setty & Sons - 20 sheets Ex.P59 One bunch containing delivery challans, tax invoices, insurance receipts etc., (totally 152 sheets) Ex.P60 A bunch of sheets seized as item No.5 of the search list containing Insurance papers, original sale deed, blue prints etc., (35 sheets) (including Ex.P33 & 34) Ex.P61 A bunch of sheets contains original sale agreement, copy of sale, deed and other documents seized as item No.4 of search list (Ex.P52).
Ex.P62 Inventory dt. 02.02.2012 - 4 sheets.
194 Spl.CC.187/2014 Ex.P62(a) Signature of PW.10 Ex.P62(b) Signature of PW.62 Ex.P62(c) Signature of A1 Ex.P63 Letter dt. 2.3.2013 of Kanaka Griha Nirmana Sahakara Sangha - 1 sheet.
Ex.P63(a) Signature of PW.11 Ex.P64 Copy of the sale deed dt. 28.3.2007 in favour of A2 - 13 sheets Ex.P65 Letter dt. 12.5.2012 of M/s. Mandovi Motors.
Ex.P65(a) Signature of PW.11 Ex.P66 Mandovi Motors Receipt dt. 15.12.2006 for Rs.50,000/-.
Ex.P66(a) Signature of one H.V. Ranjan Ex.P67 Mandovi Motors Receipt dt. 16.1.2007 for Rs.79,184/-
Ex.P67(a) Signature of Sri. Ranjan.
Ex.P68 Mandovi Motors receipt dt. 23.1.2007 for Rs.2,95,921/-
Ex.P68(a) Signature of Ranjan Ex.P69 Ledger Account Statement of A1 with enclosures total 13 sheets Ex.P70 Letter dt. 27.2.2003 of M/s. Khivraj Motors addressed to the CBI Ex.P70(a) Signature of PW.15 Ex.P71 Khivraj Motors Invoice dt. 28.4.2008 for Rs.9264/-.
Ex.P71(a) Signature of PW.13 Ex.P72 Office copy of Khivraj Motors Invoice dt.
28.4.2008 for Rs.64,756/-.
Ex.P72(a) Signature of PW.13.
Ex.P73 Khivraj Motors receipt dt. 11.4.2008 for Rs.50,000/-.
195 Spl.CC.187/2014 Ex.P73(a) Signature of PW.13 Ex.P74 Khivraj Motors receipt dt. 15.4.2008 for Rs.24,020/-.
Ex.P74(a) Signature of PW.13 Ex.P75 M/s. Planet Agencies Letter dated 30.6.2012 to CBI Ex.P75(a) Signature of Manager Ex.P76 3 Receipts for Rs.200/- Rs.56,958/- and Rs.2,000/- with one invoice of M/s. Planet Agencies - 6 sheets Ex.P77 Receipt for Rs.1,000/- dt. 25.2.2003 and Rs.39,551/- dt. 14.4.2003 with 2 invoices total 5 sheets Ex.P78 6 sheets containing Invoices for Rs.1,000/-
dt. 23.6.2011, Rs.56,953 dt. 12.9.2011, Rs.125/- dt. 12.9.2011 with 2 invoices Ex.P79 Karnataka Bank Letter dt. 20.4.2012 addressed to the CBI - 1 sheet Ex.P79(a) Signature of Sr. Br. Manager.
Ex.P80 Original Account Opening Form in the name of Sanjay.T. with enclosures - 4 sheets Ex.P81 Statement of account for the period 8.2.2010 to 20.4.2012 - 2 sheets Ex.P82 Certificate under Banker's Book of Evidence Act Ex.P82(a) Signature of PW.15 Ex.P83 Letter dt. 12.4.2012 of S.B.H - 1 sheet Ex.P83(a) Signature of the Branch Manager Ex.P84 Another letter dt. 25.4.2012 of SBH addressed to CBI - 1 sheet 196 Spl.CC.187/2014 Ex.P84(a) Signature of Br. Manager Ex.P85 Account opening form with enclosures of A2 with SBH - 4 sheets Ex.P86 Statement of account in respect of A2 Ex.P86(a) Signature of Branch Manager Ex.P87 SBH statement of account in respect of A2 for the period 1.1.2005 to 2.2.2011 - 4 sheets Ex.P87(a) Signature of Branch Manager Ex.P88 SBH Statement of account for the period 31.1.2011 to 21.4.2012 - 2 sheets Ex.P88(a) Signature of the Branch Manager.
Ex.P89 Interest accrual statement in respect of A2 of SBH - 1 sheet.
Ex.P89(a) Signature of the Branch Manager Ex.P90 Certification u/s 2A of B.B.E. Act Ex.P90(a) Signature of PW.16 Ex.P91 SBH Account opening form with enclosures of Sri. T. Sanjay - 6 sheets Ex.P92 SBH statement of account for the period 8.4.210 to 25.4.2012 in the name of T. Sanjay - 3 sheets Ex.P92(a) Signature of Branch Manager Ex.P93 Certificate issued u/s 2A of B.B.E. Act Ex.P93(a) Signature of PW16.
Ex.P94 SBH covering letter dated 10.2.2013 addressed to CBI.
Ex.P94(a) Signature of PW.16 Ex.P95 Statement of Housing Loan account of A2 -
4 sheets
Ex.P95(a) Signature of PW.16
197 Spl.CC.187/2014
Ex.P96 Certificate u/s 2A of BBE Act
Ex.P96(a) Signature of PW.16
Ex.P97 SBH Housing Loan application form of A2
with enclosures - 49 sheets
Ex.P98 Car Loan application of A1 with ICICI Bank
- 4 sheets
Ex.P99 Statement of Loan account of ICICI Bank
Ex.P100 Seizure Memo dt. 13.3.13
Ex.P100(a) Signature of PW.17
Ex.P101 Policy Status Report of A1 showing maturity amount of Rs.28,219/- Policy No. 73904020 Ex.P102 Policy Status Report of A1 for Policy No. 61145288 Ex.P103 Policy Status Report for Policy No. 612810279 of A1 Ex.P104 Certificate u/s 65-B of Evidence Act Ex.P104(a) Signature of PW.18 Ex.P105 Letter dated 25.9.2013 of LIC to CBI Ex.P105(a) Signature of PW.18 Ex.P106 Encumbrance Certificate for the period 1.4.2004 to 5.3.2013.
Ex.P107 Letter dt. 6.3.2013 of S.R.O. Kengeri to CBI Ex.P107(a) Signature of Sub-Registrar B.M. Shashikala Ex.P108 Rental agreement dt. 3.3.2011 executed between A2 & PW.21.
Ex.P109 Rental agreement dt. 3.3.2011 executed between A2 & PW.22.
Ex.P109(a) Signature of PW.22 Ex.P109(b) Signature of A2 Ex.P110 Rental agreement dt. 3.3.2011 executed between A2 & PW.23.
Ex.P110(a) Signature of PW.23 198 Spl.CC.187/2014 Ex.P110(b) Signature of A2 Ex.P111 Certified copy of Income Tax returns of A2 for the year 2009-10 - 15 sheets Ex.P112 Certified copy of I.T. returns of A2 for the year 2008-09 - 13 sheets Ex.P113 Certified copy of I.T. returns of A2 for the year 2007-2008 - 15 sheets Ex.P114 Letter dt. 20.4.2012 of I.T. Dept., to Commissioner, IT-I, Bengaluru Ex.P115 Letter dt. 10.5.2012 from the office of I.T. addressed to CBI.
Ex.P116 I.T. return verification form of A2 for the Annual Year 2011-12 - 6 sheets.
Ex.P117 I.T. return verification form of A2 for the Annual Year 2010-11 - 6 sheets.
Ex.P118 I.T. Returns verification form of A2 for the Annual Year 2090-10 - 4 sheets Ex.P119 I.T. Returns verification form of A2 for the Annual Year 2008-09 - 5 sheets Ex.P120 I.T. Returns verification form of A2 for the Annual Year 2007-08 - 13 sheets.
Ex.P121 I.T. Returns verification form of Sri. Sanjay T for the A.Y. 2011-12.
Ex.P122 Letter dt. 18/5/2012 of PW.27 addressed to CBI.
Ex.P122(a) Signature of PW.27 Ex.P123 Attested copy of I.T. returns of A1 for the Annual Year 2010-11 - 2 sheets Ex.P124 Attested copy of I.T. returns of A1 for the Annual Year 2009-10 199 Spl.CC.187/2014 Ex.P125 Computer Screen Print of returns in respect of A1 for the year 2003-2008.
Ex.P126 Letter dt. 7.5.2012 of PW.29 to CBI Ex.P126(a) Signature of PW.29 Ex.P127 Letter dt. 10.5.2012 of PW.30 to CBI Ex.P127(a) Signature of PW.30 Ex.P128 Original Rental Agreement dt. 3.3.2011 executed between A2 & PW.31 Ex.P128(a) Signature of PW.93 Ex.P129 True copy of LIC Policy Bond in the name of A2 Ex.P130 True Copy of LIC policy bond in the name of Sanjay T Ex.P131 Premium paid certificate in respect of A2 Ex.P132 Premium paid certificate in respect of A2 Ex.P133 Status Report of Policy of Sanjay T. Ex.P134 Status Report of LIC Policy of A2 Ex.P135 Covering Letter dt. 2.5.2015 of PW.32 to CBI Ex.P135(a) Signature of PW.32 Ex.P136 True Copy of Bajaj Allianz Life Insurance Application form and enclosure.
Ex.P137 Letter dt. 28.4.12 of PW.33 to CBI Ex.P137(a) Signature of PW.33 Ex.P138 Reliance Life Insurance application and enclosures Ex.P139 Letter dt. 1.1.2012 of PW.34 to CBI Ex.P139(a) Signature of PW.34 Ex.P140 Letter of Senior Regional Manager, Reliance Life Insurance to CBI.
200 Spl.CC.187/2014 Ex.P140(a) Signature of Sr. General Manager, Reliance Life Insurance.
Ex.P141 Reliance Life Insurance Statement of account in respect of Sanjay T Ex.P142 & 143 Receipts Ex.P144 'B' Register extract of vehicle No. KA 02 HN 8799.
Ex.P145 Tax Challan for Rs.5185/-.
Ex.P146 Challan for registration fee and Smart Card fee Ex.P147 Invoice dt. 30.9.2011 Ex.P148 'B' Register Extract in respect of vehicle No. KA-02-HC-2497.
Ex.P149 Tax Challan for Rs.7123/-.
Ex.P150 Challan for Registration fee. Ex.Pl51 Invoice dt. 24.8.2008.
Ex.P152 'B' Registrar Extract for vehicle No. KA 02 MB 6759.
Ex.P153 Tax Challan for Rs.36,779/-
Ex.P154 Challan for registration & hypothecation for Rs.300/-
Ex.P155 Challan for advance registration fee for Rs.6,000/-
Ex.P156 Invoice for Rs.3,71,491/- dt. 25.1.2007. Ex.P157 'B' Register Extract for vehicle No. KA 02 HP 4139 Ex.P158 Tax Challan for Rs.5,246/-.
Ex.P159 Challan for registration fee and Smart Card fee for Rs.197/-
Ex.P160 Invoice dt. 16.11.2011 of M/s. Planet Agencies 201 Spl.CC.187/2014 Ex.P161 'B' Register extract for vehicle No. KA 02 EH 6749.
Ex.P162 Tax Challan for Rs.2,625/-
Ex.P163 Challan for New registration and Smart Card fee of Rs.82/-.
Ex.P164 Invoice dt. 24.4.2003 of M/s. Planet Agencies.
Ex.P165 Copy of Insurance Policy of National Insurance Co., Ltd., in respect of Vehicle No. KA 02 MB 6759 (Maruthi Zen Estilo Car) etc., Ex.P166 Covering Letter dt. 14.5.2012 of PW.36 to the Investigating Officer Ex.P166(a) Signature of PW.36 Ex.P167 Certified copy of Salary Particulars of A1 from October 1998 to January 2012 - 5 sheets (Addl. Doct.) Ex.P168 Letter dt. 7.3.2013 of PW.37 to the Investigating Officer - 1 sheet Ex.P168(a) Signature of PW.37 Ex.P169 Certificate of Insurance and Policy to 172 Schedule Ex.P173 Letter dt. 11.5.2012 of Divisional Manager, Oriental Insurance Co. Ltd., to the CBI Ex.P173(a) Signature of PW.38 Ex.P174 Oriental Insurance Co. Ltd., policy in respect of two wheeler - 2 sheets Ex.P175 Oriental Insurance Co. Ltd., fire policy in respect of house property No.91 of A1 - 2 sheets Ex.P176 Letter dt. 7.5.12 of Divisional Manager, United India Assurance Co., Ltd., to the Investigating Officer - 1 sheet Ex.P176(a) Signature of one B.S. Mishra.
202 Spl.CC.187/2014 Ex.P177 to 179Payment details i.e., receipt etc., in respect of Vehicle No. KA-02-EH-6749 - (4 sheets each) Ex.P180 Letter dt.15.5.12 of PW.40 to the CBI Ex.P180(a) Signature of PW.40 Ex.P181 Membership Application dt.21.11.2011 of A1 Ex.P182 Copy of Intimation dt. 2.4.2012 sent to A1 Ex.P183 Letter dated 20.5.2012 of Sree Mahisha Mardhini Gadduge Ammanavara Trust to the CBI Ex.P183(a) Signature of Secretary.
Ex.P184 Copy of the receipt for Rs.50,000/-
Ex.P185 Letter dt. 17.5.2012 addressed to CBI Ex.P185(a) Signature of the Principal Ex.P186 Copy of Ledger extract - 1 sheet Ex.P187 Letter dt. 2.3.2013 of Allianu Academy to CBI Ex.P187(a) Signature of PW.43 Ex.P188 Copy of the receipt dated 15.11.2011 for Rs.4,948/-
Ex.P189 Copy of the receipt dt. 20.11.2013 for Rs.2,270/-
Ex.P190 Letter dt. 14.5.2012 of Reynold's Inc to CBI Ex.P190(a) Signature of PW.44 Ex.P191 14 Receipts of M/s. Reynold's Inc from 2.7.2010 to 22.8.2011 - 14 sheets Ex.P192 Relevant portion of 161 Cr.P.C., statement of PW.45 (CW-52).
Ex.P193 Letter dt. 14.5.2012 of Asst. Revenue Officer, Vijayanagar Region, BBMP - 1 sheet Ex.P193(a) Signature of Asst. Revenue Officer.
203 Spl.CC.187/2014 Ex.P194 Letter dt. 26.03.2013 of Asst. Revenue Officer, Chandra Layout Region, BBMP - 1 sheet.
Ex.P194(a) Signature of Asst. Revenue Officer. Ex.P195 Letter dt. 19.7.13 of A.E.E. W-3 Sub-
Division, BESCOM to the Investigating Officer - 1 sheet Ex.P195(a) Signature of PW.48 Ex.P196 BESCOM Statement in respect of RR Nos.
of A2 - 1 sheet Ex.P196(a) Signature of PW.48 Ex.P197 BESCOM Statement in respect of RR Nos.
of A1 - 1 sheet Ex.P196(a) Signature of PW.48 Ex.P198 Letter dt. 19.6.2013 of PW.48 to the Investigating Officer - 1 sheet Ex.P198(a) Signature of PW.48 Ex.P199 Attested copy of work order of BESCOM issued to A2 - 1 sheet Ex.P199(a) Signature of PW.48 Ex.P200 Attested copy of the plan of site in 2 sheets Ex.P200(a) Signature of PW.48 Ex.P201 Letter dt. 14.6.2013 of Sri. A.S. Jayakumar, AEE, BESCOM, Vijayanagara, B-79 to the CBI - 1 sheet Ex.P201(a) Signature of A.S. Jayakumar Ex.P202 Copy of power supply agreement Ex.P203 Copy of Sanction Letter dt. 13.1.2010 - 1 sheet Ex.P204 BESCOM sanction letter for multi-storied building - 1 sheet Ex.P205 Copy of BESCOM Feasibility Report - 9 sheets 204 Spl.CC.187/2014 Ex.P206 BESCOM statement showing payment of electricity charges etc., by A2 Ex.P206(a) Signature of AEE Ex.P207 BESCOM Statement showing deposits and energy charges pertaining to A2 - 1 sheet Ex.P207(a) Signature of AEE Ex.P208 Letter dt. 9.5.2012 of Dy. Chief Inspector (E), Electrical Inspectorate, Bengaluru to the Investigating Officer - 1 sheet Ex.P208(a) Signature of Deputy Chief Inspector Ex.P209 Approval Letter dt. 23.9.2009 of Deputy Chief Electrical Inspectorate Ex.P209(a) Signature of PW.50 Ex.P210 Attested Copy of O.M. dated 25.9.2009 Ex.P210(a) Signature of PW.50 Ex.P211 Letter dt. 21.5.2012 of PW.51 to the Investigating Officer Ex.P211(a) Signature of PW.51 Ex.P212 Extract of Sanction Register Ex.P213 BWSSB Ledger Reports (3 sheets, 5 sheets to 216 and 6 sheets respectively) Ex.P217 Relevant portion of 161 Cr.P.C., Statement of PW.52/CW60 Ex.P218 Letter dt. 18.5.2012 of PW.53 to the Investigating Officer Ex.P218(a) Signature of PW.53 Ex.P219 Copy of Receipt dt. 13.1.2010 for Rs.20,000/-
Ex.P220 One Blank cheque signed by PW.54 Ex.P220(a) Signature of PW.54 205 Spl.CC.187/2014 Ex.P221 Relevant portion of 161 statement of PW.54/CW62 Ex.P222 Blank Cheque signed by PW.55 Ex.P222(a) Signature on PW.55 Ex.P223 Relevant portion of 161 statement of PW.55/CW64.
Ex.P224 A & A Fitness Training Centre Receipt for Rs.11,856/-
Ex.P224(a) Signature of authorized signatory.
Ex.P225 Statement of Account of Vijaya Bank, Ganganagar Branch, Bengaluru in respect of A/c. No. ... 812 in the name of S.P., with Certificate u/s 2-A of B.B.E. Act - 2 Sheets Ex.P225(a) Signature of PW.57 Ex.P225(b) Certificate u/s 2A of B.B.E. Act. Ex.P225(c) Signature of Chief Manager in Ex.P225(b) Ex.P226 Statement of A/c. of Vijaya Bank in the name of S.P., CBI.
Ex.P226(a) Certificate u/s 65-B of Evidence Act. Ex.P226(b) Signature of Branch Manager in Ex.P226(a) Ex.P227 Original Pay-in-Slip for Rs.56,82,000/-
Ex.P228 True Copy of S.B. A/c. of the firm in the name of B. Pampa Naik.
Ex.P229 Statement of Account in the name of to 231 B. Pampa Naik Ex.P230(a) & 231(a) Certificates u/s 2-A of B.B.E. Act Ex.P230(b) & 231(b) Signature Ex.P232 Letter dt. 8.10.13 of Corporation Bank, Mandipet Branch, Davanagere to CBI Ex.P232(a) Signature of PW.61 206 Spl.CC.187/2014 Ex.P233 Attested Copy of SB A/c. of firm of B. Pampa Naik, maintained in Corporation Bank, Davanagere - 5 sheets Ex.P234 Statement of Account with Certificate in the name of B. Pampa Naik, SB A/c.
No.15384 maintained with Corporation Bank, Davanagere Branch Ex.P234(a) Certificate u/s 2-A of BBE Act. Ex.P234(b) Signature.
Ex.P235 File containing documents seized from the house of A1 & A2 (45 sheets) Ex.P236 Two Blank Cheque Nos.063351 & 063352 of & 237 IOB, K.H. Road Branch, Bengaluru-27.
Ex.P236(a) & 237(a) Signatures of PW.64 Ex.P238 P & L Account for the period 1.4.2000 to 31.12.2011 prepared by Sri. Gowli Basavaraj (PW.69) pertaining to the Pampa Naik - 1 sheet Ex.P239 Balance Sheet for the period 1.4.2000 to 31.12.2010 pertaining to Pampa Naik prepared by PW.65 Gowli Basavaraj - 1 sheet Ex.P240 Ledger Account for sale of agricultural produces for the period 1.4.2000 to 31.12.2011 pertaining to Pampa Naik prepared by Gowli Basavaraj (PW.65) - 6 sheets Ex.P241 Letter dt. 8.5.2012 of Can Fin Homes to CBI - 1 sheet Ex.P241(a) Signature of PW.66 Ex.P242 Original Loan application of Tholasirama 207 Spl.CC.187/2014 submitted to Can Fin Homes (Joint borrower - Smt. Sharada) - 4 sheets Ex.P243 Original Loan Agreement submitted by A1 * A2 Ex.P244 Original Letter of Guarantee - 1 sheet Ex.P245 Letter dt. 20.10.13 of BSNL for creation of second charge Ex.P246 Loan Sanction Letter of Canfin Homes Ltd., dt. 7.10.2003 - 3 sheets Ex.P247 Letter dt. 19.4.2012 of Canfin Homes to CBI Ex.P247(a) Signature of PW.66 Ex.P248 Statement of Housing Loan account Ex.P248(a) Certificate issued under B.B.E. Act Ex.P249 Original Sanction order Ex.P249(a) Signature of PW.67 Ex.P250 Letter dt. 11.4.2014 of BSNL to CBI Ex.P250(a) Signature of GM Ex.P251 Letter dt. 10.4.2014 of PW.67 to AGM, Vig.
BSNL Ex.P251(a) Signature of PW.67 Ex.P252 Attested copy of Schedule Powers Ex.P253 Written explanation of A2 Ex.P253(a) Signature of A2 Ex.P253(b) Signature of PW.68 Ex.P254 Written Explanation of PW.68 - 1 sheet Ex.P254(a) Signature of PW.68 Ex.P255 F.I.R.
Ex.P255(a) Signature of H.O.B. Sri. R. Hitendra Ex.P256 Order of H.O.B. Sri. R. Hitendra dt.
31.1.12 Ex.P256(a) Signature of H.O.B. CBI 208 Spl.CC.187/2014 Ex.P257 One bunch of papers contains receipt - etc Ex.P258 One bunch of papers containing Insurance papers, Form No.29, 30, Bank Statements etc., 81 sheets Ex.P259 One file containing 50 sheets pertaining to I.T. returns etc., 50 sheets Ex.P260 One file containing LIC policies seized at the residence of A1 during the search - 11 sheets Ex.P261 One file containing LIC acceptance letters etc., pertaining to A1 - 12 sheets.
Ex.P262 One file containing rental agreements - 12 sheets.
Ex.P263 True copy of the pay-in-slip dt. 3.2.2012 for Rs.56,82,000=00 at Vijaya Bank, Ganganagar Branch, Bengaluru.
Ex.P264 True copy of the statement of account for the transaction of Rs.56,82,000=00 of Vijaya Bank Ex.P265 Vijaya Bank, Ganganagar Branch, Bengaluru dt. 7.2.2012 signed by the Chief Manager Ex.P266 One Spiral Binding Book contains copies of Form No.01 to 06 and letter dt. 20.6.2012. Ex.P267 One Spiral binded book contains Annexure-I to VI Ex.P268 Written Explanation of A1 dt. 2.3.2010 to the Investigating Officer - 5 sheets Ex.P269 Original Bajaj Allianz Life Insurance Policy document in the name of A1 Ex.P270 Letter from M/s. B.S. Krishna Murthy & 209 Spl.CC.187/2014 Associates, Auditors and Tax Consultants to the CBI LIST OF EXHIBITED DOCUMENTS FOR DEFENCE:
Ex.D1 Relevant sentence at page No.5 of Ex.P1 Ex.D2 Relevant sentence at page No.2 of 161 statement of PW.1 Ex.D3 Relevant sentence at page No.3 of 161 statement of PW.1 Ex.D4 Relevant sentence at page No.1 of 161 statement of PW.1 Ex.D5 Certificate on Profit & Loss Account in Ex.P116 Ex.D6 to D9 Certificates with signature of PW.27 in Ex.P117 to 120 respectively Ex.D10 Affidavit of PW.19 - 5 sheets Ex.D11 Affidavit of B. Pampa Naik - 4 sheets Ex.D12 Affidavit of M. Shanmukha Naik - 4 sheets Ex.D13 Affidavit of B.M. Padavipani Naik - 4 sheets Ex.D14 Affidavit of Thelagare Shivappa - 2 sheets Ex.D15 Genealogical Tree dt. 14.3.2012 - 1 sheet Ex.D16 List of Members of family of PW.19 in whose name properties are standing - 2 sheets.
Ex.D17 One bunch contains RTC and Crop Certificate - 38 sheets Ex.D18 One bunch of bills for sale of agricultural produce - 62 sheets Ex.D19 Cane supply and other bills - 38 sheets Ex.D20 One bunch containing statement of account, copy of sale deed etc., - 10 sheets.
210 Spl.CC.187/2014 Ex.D21 Profit & Loss account statement - 12 sheets Ex.D22 Sugarcane purchase bill Ex.D23 & 24 Salary slips of A1 Ex.D25 Ledger Account of sale of properties for the period 1.4.2000 to 31.12.2011 prepared by PW.65 Sri. Gowli Basavaraj - 1 sheet (sheet No.314 of D8) Ex.D26 Ledger account of sale of sheeps and goats for the period 1.4.2000 to 31.12.2011 prepared by PW.65 Gowli Basavaraj - 1 sheet (sheet No.315 of D8).
Ex.D27 Ledger account of sale of sugarcane for the period 1.4.2000 to 31.12.2011 prepared by PW.65 Gowli Basavaraj - 2 sheets (sheet No.316 of D8).
Ex.D28 Attested copy of BSNL C & A Rules, 2006 Ex.D29 & 30 Two Vigilance files for sanction Ex.D31 Relevant entry in Ex.P92 Ex.D32 Letter dt. 16.10..2013 of KPTCL Employees Co-operative society (produced by defence) Ex.D33 Relevant entry in Ex.P92.
Ex.D34 Copy of the order dt. 10.9.2014 in Crl.R.P. No. 745/13 (produced by the defence).
LIST OF MATERIAL OBJECTS EXHIBITED FOR PROSECUTION NIL (Shridhar Gopalakrishna Bhat) XXI Addl. City Civil and Sessions Judge, & Prl. Special Judge for CBI Cases, Bengaluru.