Madras High Court
State Of Tamil Nadu Rep. By vs Awadh Kishore Gupta And Others Reported ... on 22 March, 2012
Author: R.Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.03.2012
CORAM:
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal No.528 of 2010
State of Tamil Nadu rep. by
The Inspector of Police
Department of Vigilance and
Anti-corruption, City Special Unit-II
Chennai-600 035. .. Appellant/Complainant
v.
1.K.Sivaraman
2.Mallika Sivaraman .. Respondents/A1 and A2
Prayer:Criminal Appeal filed under Section 378 Cr.P.C., against the judgment of acquittal, dated 30.06.2010 made in C.C.No.31 of 2007 on the file of the learned Ist Additional Sessions and Special Judge, Chennai.
For Appellant : Mr.R.Prathap Kumar
Government Advocate (Crl.side)
For Respondent : Mr.R.Shunmugha sundaram,
senior counsel for Mr.L.Baskaran
J U D G M E N T
The Criminal Appeal arises out of the judgment of acquittal, dated 30.06.2010 made in C.C.No.31 of 2007 on the file of the learned Ist Additional Sessions Judge-cum-Special Judge, Chennai, whereby A1 was acquitted of the offences under Sections 13(2) r/w 13(1)(e) of Prevention of Corruption Act and A2 was acquitted of the offences under Sections 109 IPC and 13(2) r/w 13(1)(e) of P.C. Act.
2.The appellant has filed a final report stating that the first respondent was working as Inspector of Police in Civil Supplies, C.I.D., Chennai, and then he was promoted as Superintendent of Police. During the check period between 1.1.1995 and 31.12.2001, he was working as Deputy Superintendent of Police in Central Intelligence Unit, Kancheepuram and Assistant Commissioner, Security, in Government Royapettah Hospital and Deputy Superintendent of Police (law and order) in Adyar and Assistant Commissioner in Madhavaram and then, working as Deputy Superintendent of Police (Law and order), Anti-dowry cell at Tiruvannamalai. Then, he was promoted as Additional Superintendent of Police and then, promoted as Superintendent of Police, NIB, CID, Chennai. A1/first respondent is a public servant. A1 and his wife/A2 were possessed the property worth about Rs.40,641/- as on 01.01.1995 and at the end of the check period (i.e.) on 30.12.2001, the accused possessed the property worth about Rs.30,28,838/-. During the check period between 1.1.1995 and 31.12.2001, they acquired assets worth about Rs.29,88,197/-. But during the check period, the income of A1 is only Rs.19,55,801/- and his family expenses is Rs.16,55,177/- and his savings is only Rs.3,00,624/-, totally A1 and A2 possessed disproportionate assets worth about Rs.26,87,573/-. So the charge sheet has been filed against A1 of the offence under Section 13(2) r/w 13(1)(e) of P.C. Act and against A2 of the offence under Sections 109 IPC and 13(2) r/w 13(1)(e) of P.C. Act, after obtaining sanction from the competent authority.
3.The case of the prosecution is as follows:
(i) During the check period between 1.1.1995 and 31.12.2001, A1 was working in various capacity in various places. As per the property statement furnished in Statement No.I, the accused was acquired assets as on 1.1.1995 is Rs.40,641/-. As on 31.12.2001, the assets stood to the credit of A1 and A2 is Rs.30,28,838/-.
(ii) P.W.5-Prabakaran, Inspector of Police, received a report from the Superintendent of Police, District Crime Branch, Nagappattinam, stating that since A1 and A2 has acquired disproportionate wealth to the known source of income, he registered a case on 21.09.2004 in Crime No.10/AC/2004/CC2 of the offences under Sections 13(2) r/w 13(1)(e) of P.C. Act and preferred Ex.P4-printed F.I.R.
(iii) P.W.6-Rathnakumar, Superintendent of Police, took up the matter for investigation. He sent advance intimation Ex.P5 to the concerned Magistrate for searching the house of the accused. On 22.09.2004, he made a search in the house of the accused in the presence of the witnesses one Govindasamy, Pugazhendhi and recovered 13 documents and prepared Exs.P6 & P7-search list and also obtained a signature of A2, who is the wife of A1, in the search list. Then P.W.5 forwarded the same to the Principal Sessions Court through Ex.P9-letter and then he taken back the documents and search list from the concerned Court through Ex.P10-letter.
(iv) P.W.7-Raja Srinivas taken up the matter for further investigation and he was authorised by the Superintendent of Police, Vigilance and Anti-corruption, under Sections 18 and 17 of P.C. Act, to investigate the matter and the same were marked as Exs.P11 and P12. On that basis, he investigate the case and examined the witnesses on various dates and seized the documents relating to the property of the accused.
(v) P.W.7 seized the property statement of A1 viz., Ex.P13 and Registration copy of the sale deed stands in the name of A2/R2 viz., Ex.P14. He examined P.W.3-Ravikumar, who was working as Building Contractor and who deposed that he sold a property to A2 under Ex.P15-sale deed for Rs.4,70,000/-. Then P.W.7 seized the bank account of A1 (i.e.) Ex.P16. Ex.P17 is the letter to the Branch Manager of City Central Co-operative Bank, Chennai, containing the particulars of loan availed by A1 and his brother. Exs.P18 to P22 were the salary certificate of A1. The accused also obtained a loan from Madras Purasawalkam Hindu Janopakara Saswatha Nidhi Ltd, Chennai and the same was marked as Ex.P23. Ex.P24 is the statement of accounts stands in the name of A1. Exs.P25 and P26 are L.I.C. policy of A1 and A2. Exs.P28 & P29 are xerox copies of sale deed obtained from the Velacherry Sub-registrar's office. Ex.P30 is the note written by one Saroja to A2. Ex.P31 is the salary certificate of A1 from March 1997 to June 1997.
(vi) P.W.7 also enquired the Schools, wherein the children of the accused were studied and obtained the term fees receipts and the same were marked as Exs.P32 to P37. Exs.P38 and P39 are the letters from gas agency. P.W.7 also seized letters from Tamil Nadu Electricity Board in respect of consumption of electricity and the same were marked as Exs.P40 and P41. Then he obtained a bill of telephone charges under Ex.P42. Ex.P43 is the statements 1 to 7 given by the accused to the Vigilance and Anti-corruption office. Ex.P44 is the explanation given by the accused to the Vigilance and and Anti-corruption office.
(vii) After obtaining all the documents, the investigating agency came to know that the accused possessed disproportionate wealth to the known source of income. P.W.7 also obtained consumption utility certificate from P.W.2-Assistant Director, Directorate of Economics and Statistics, Chennai, which shows the family consumption expenses of the family was Rs.3,87,250/-. After completing his investigation, P.W.7 after obtaining sanction from P.W.1-Secretary to Government of Tamil Nadu, filed a charge sheet against A1 and A2.
4.The learned Special Judge, after following the procedure, framed necessary charges. Since the accused pleaded not guilty, the learned Special Judge examined the witnesses P.W.1 to P.W.7 and marked the documents Exs.P1 to P44 and placed the incriminating evidence before the accused and the accused denied the same. On the side of the accused, they examined D.W.1 to D.W.3 and marked Exs.D1 to D5. The Special Court after considering the oral and documentary evidence, acquitted the accused/A1 and A2, stating that as per the Statement No.1, as on 1.1.1995, the accused possessed the property worth about Rs.1,87,641/-. As per the statement No.3, they possessed the property worth about Rs.37,31,801/-. During the check period between 1.1.1995 and 31.12.2001, as per the statement No.IV, consumption of the family expenses is Rs.7,55,481/-, savings of the accused is Rs.29,76,320/-, but they possessed the property only worth about Rs.28,41,197/-. So the Special Court has held that the prosecution has miserably failed to prove that the accused were possessed disproportionate wealth to the known source of income and hence, acquitted the accused, against which, the State preferred this appeal.
5.Challenging the judgment of acquittal, the learned Government Advocate (Crl. Side) Mr.R.Prathap Kumar, filed a written arguments and submitted that P.W.1-Malathi, Secretary to Government of Tamil Nadu, who accorded sanction for prosecuting the accused, is a competent authority to accord sanction. Even though at the time of filing charge sheet, it was stated that percentage of disproportionate assets is 137%, but as per the veracity of the evidence before the Special Court, the percentage of disproportionate assets is 108%. He further submitted that during the check period between 1.1.1995 and 31.12.2001, as per veracity of the evidence before the Special Court, the income of the family is Rs.19,55,801/- and their expenditure is Rs.10,85,336.55 and their savings is Rs.8,70,464.45. For the reason, he culled out the evidence of P.W.2, who was working as Assistant Director, Directorate of Economics and Statistics, Chennai, and who stated that as per Ex.P2, according to the statistical report, family consumption expenses for four persons of the family for seven years is Rs.3,87,250/-, which includes food, cloth, E.B. Charges, Telephone charges and education. As per Statement No.4, amount incurred towards payment of insurance premium by A1 is Rs.62,832/- and in another L.I.C. Policy, the amount incurred by his wife/A2 is Rs.47,376/- and the amount incurred by A2 towards stamp duty and registration fees for purchasing of house site on 2.11.1995 is Rs.82,397/- and both the accused paid instalments with interest for the loan amount received from the Madras Purasawalkam Hindu Janopakara Saswatha Nidhi Ltd, during the check period is Rs.5,05,481.55 and the total amount comes to Rs.10,85,336.55. The plausible explanation for the source of income submitted by A1 is not reliable and that factum has not been considered by the Special Court. He further submitted that D.W.1 is none other than the brother of A1/R1 and he did not file any iota of document to show that he gave Rs.13,00,000/- to A2 for constructing first floor. D.W.2 is a owner of small jewellery shop at Madurai and A2 did not file any document to show that he purchased jewels from A2 weighing 25 sovereigns for a sum of Rs.1,07,750/-. D.W.3-Muthukumar, who is the brother of A2, deposed that after the death of his father, he and his brother Maniraj provided necessary funds to A2 to buy a flat at Chennai and A2 selected a house flat at Ekkattuthangal. Therefore, the house site was purchased in the year 1995 for the consideration of Rs.4,70,000/-. Further, D.W.3 and his brother Maniraj contributed Rs.50,000/- to A2 for the construction of the building. But A2 has not filed any single document to show that the disputed house property has been purchased by her out of the funds provided by her brothers D.W.3 and one Maniraj. Further, D.W.3 deposed that he is not having any proof to show that he provided some amount from death cum retirement benefits of their father to A2. There is no iota of document to show that D.W.3 and his family parted with money for purchasing the plot and construction the made therein. It is further submitted by the learned Government Advocate that all the above facts have not been proved by the accused and the documents filed by the respondents under Exs.D1 to D4 were not proved in accordance with law. D.W.1 stated that he had given money to one Venugopal Raja and through him, the money was given to A2, when he was in Dubai, but the said Venugopal Raja was not examined before the Court and the explanation submitted by A1 regarding the same is unacceptable. Since the case was ended in acquittal, he relied upon the decisions of the Apex Court reported in (2008) 10 SCC 450 ( Ghurey Lal v. State of Uttar Pradesh) and AIR 2011 SC 1037 (V.S.Achuthanandan v. R.Balakrishna Pillai and others) and submitted that any appeal against acquittal, this Court has every right to reconsider the evidence on records and give its own conclusion and the power must be exercised with great care and caution. He relied upon the decisions reported in 2009 Crl. L.J. 1767 (N.Ramakrishnaiah (Dead) thr. Lrs. v. State of A.P.) and 2004 Crl.L.J. 598 ( State of Madhya Pradesh v. Awadh Kishore Gupta and others) and submitted that the accused has to offer plausible explanation about the accounts for accumulating assets in his name and to prove the same, by satisfying the Court. Hence, he prayed for setting aside the order of acquittal.
6. Resisting the same, Mr.Shanmugasundaram, the learned senior counsel appearing for the respondents/accused submitted that A1 and A2 are well educated and in their family, all are earning and some of them are Government servants. D.W.1 was working in Foreign country, after resigning the State Government Job as Assistant Executive Engineer in Tamil Nadu Water and Sewerage Board. Now he is settled here and helped his brother/A1 for constructing first floor and contributed Rs.13,00,000/-. A2 sold the property in the year 1999-2001 for Rs.3,44,000/- and A1 also applied GPF loan and that has not been taken into account by the investigating agency. Even though A2 was prosecuted, she was not given an opportunity to offer her explanation. To substantiate his arguments, he relied upon the decisions of Apex Court as well as this Court. Since it is a judgment of acquittal, unless there is no error or perversity, it is not called for any interference. If two views are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Hence, he prayed for dismissal of the appeal.
7.Considered the rival submissions made on both sides and perused the materials available on record.
8.Interference by the High Court in the order of acquittal:
Since the appeal is against the judgment of acquittal, the burden is heavily upon the prosecution to prove the guilt of the accused beyond reasonable doubt. Now it is appropriate to consider the decisions relied upon by both sides counsel.
(i) While dealing with the appeal against the judgment of acquittal, whether the Court has power to re-appreciate the evidence. In (2008) 10 SCC 450 (Ghurey Lal v. State of Uttar Pradesh), it was held that the appellate Court given wide powers to review the evidence in appeals to come to its own conclusion. The appellate Court may review the evidence in appeal against acquittal under Sections 378 and 386 Cr.P.C. Its power of reviewing evidence is wide and the appellate Court can re-appreciate the entire evidence on record. The power must be exercised with great care and caution. In order to ensure that the innocents are not punished, the appellate Court should attach due weight to the lower court's acquittal because the presumption of innocence is further strengthened by the acquittal. The appellate Court should, therefore, reverse an acquittal only when it has "very substantial and compelling reasons." So it is appropriate to incorporate para-69 and 70 of the above decision, which reads as follows:
"69. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate Court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
A number of instances arise in which the appellate Court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
i) The trial court's conclusion with regard to the facts is palpably wrong;
ii) The trial court's decision was based on an erroneous view of law;
iii) The trial court's judgment is likely to result in "grave miscarriage of justice";
iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
v) The trial court's judgment was manifestly unjust and unreasonable;
vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."
(ii) It was held by the Apex Court that the Appellate Court has full power to review, reconsider and reappreciate the evidence upon which the order of acquittal is founded. In para-7 of the decision reported in AIR 2011 SC 1037 (V.S.Achuthanandan v. R.Balakrishna Pillai and others), it is stated as follows:
"7. .. It is settled principle that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. The Code of Criminal Procedure (in short `Cr.P.C') puts no limitation, restriction or condition on exercise of such power and an Appellate Court is free to arrive at such conclusion, both on questions of fact and of law. An Appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. The presumption of innocence is available to a person and in the criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. It is also settled law that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Keeping the above principles in mind, let us discuss the charges leveled, materials placed by the prosecution in support of those charges, reasoning of the Special Court convicting the accused and impugned order of the High Court acquitting all the three accused in respect of the said charges".
(iii) It was held that the appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused, the accused is entitled to get benefit of doubt. Further if it is decided to interfere with the trial Court, it should assign reason with the decision of the appellate Court. It is appropriate to incorporate para-42 of the decision reported in Chandrappa & Others v. State of Karnataka (2007) 4 SCC 415, in which, it was held:
"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(iv) In 2009 (10) SCC 401 (Dhanapal v. State by Public Prosecutor, Madras), in which, the decisions of State of Rajasthan v. Raja Ram reported in 2003 (8) SCC 180 and State of Goa v. Sanjay Thakran (2007) 3 ScC 755 were followed and held that the accused is presumed to be innocent until proven guilty. In para-39, it is held as follows:
"39. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court.
The trial court's acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
40. We have considered the entire evidence and documents on record and the reasoning given by the trial court for acquitting the accused and also the reasoning of the High Court for reversal of the judgment of acquittal. On careful marshalling of the entire evidence and the documents on record, we arrive at the conclusion that the view taken by the trial court is certainly a possible or plausible view."
(v) For the same proposition, in (M.C.Ali and another v. State of Kerala) reported in (2010) 4 SCC 573, the Apex Court followed the decision reported in (1979) 1 SCC 79 (Antar Singh v. State of M.P.) and Chandrappa v. state of Karnataka in ((2007) 4 SCC 415), in para-58 and 59, it was held as follows:
"58. The High Court, in fact, makes a reference to the judgment of this Court in the case of Kali Ram v. State of H.P., (1973) 2 SCC 808, wherein this Court has observed :
"25.Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted."
Having noticed the aforesaid principle, the High Court reviewed the entire evidence. It reached the conclusions which are opposite to the conclusions recorded by the Trial Court. We are unable to accept the opinion of the High Court that findings recorded by the Trial Court are perverse and manifestly erroneous.
59. We have very elaborately dealt with the judgments of both the courts below, to show that the Trial Court had meticulously examined the entire evidence, to record its conclusions. We may now briefly indicate our reasons for not agreeing with the view expressed by the High Court, that the conclusions reached by the Trial Court were perverse and manifestly erroneous."
(vi) In (2011) 11 SCC 24 (Anil Kumar Gupta v. State of Uttar Pradesh), it was held that after following the decision reported in (2003 SCC (Cri) 264 (Dwarka Dass v. State of Haryana)), in para-16, it is observed that an appellate Court has full power to reappreciate, review and reconsider the evidence upon which the order of acquittal is founded. But it is well established that if two views are possible on the basis of evidence on record and one favourable view to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In para-16, it is held as follows:
"16. In Dwarka Dass, this Court following the decision in Ramesh Babulal Doshi, further observed that: (Dwarka Dass Case), in para-2, "2. .. .. there cannot be any denial of the factum that the power and authority to appraise the evidence in an appeal, either against acquittal or conviction stands out to be very comprehensive and wide, but if two views are reasonably possible, on the state of evidence: one supporting the acquittal and the other indicating conviction, then and in that event, the High Court would not be justified in interfering with an order of acquittal, merely because it feels that it, sitting as a trial court, would have taken the other view. While reappreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on a wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice. .. .. "
(vii) In 1987 (Supp) SCC 379 (State of Maharashtra v. Pollonji Darabshaw Daruwalla), in the cases of disproportionate wealth, the accused is entitled to benefit of doubt and interference with the order of acquittal is refused. In para-22, it is held as follows:
"22.The discussion of and the conclusion reached on the contents and parts (c) to (e) by the High Court tends to show that the disproportion of the assets in relation to the known source of income is such that respondent should be given the benefit of doubt though however, on a consideration of the matter, if cannot be said that there is no disproportion or even a sizeable disproportion. For instance, Shri Bhasme is right in his contention that the acceptance by the High Court of the case of the alleged gift from the mother is wholly unsupported by the evidence. There are also other possible errors in the calculations in regard to point(c). The finding becomes inescapable that the assets were in excess on the known sources of income. "
8.Keeping the dictum of the Apex Court in the mind, this Court considered the materials available on record (i.e.) oral and documentary evidence and arguments advanced by both sides counsel.
9.Sanction:
The learned senior counsel for the respondents/accused submitted that P.W.2-Assistant Director, Directorate of Economics and Statistics, Chennai, gave a report in respect of family consumption expenses of the accused and at the time of sending report, P.W.1 was working as a Director, Directorate of Economics and Statistics, Chennai. Now P.W.1 as Principal Secretary, Home Department, after perusing the documents, accorded sanction and she is the competent person to appoint or remove A1/R1. So merely because P.W.1 is a Director of Directorate of Economics and Statistics, while P.W.2 gave a report in respect of family consumption expenses of A1/R1, is not barred to issue such a sanction order by P.W.1, who is the competent authority. While perusing Ex.P1-sanction order, G.O. issued for according sanction along with the evidence of P.W.1. In such circumstances, I am of the view, P.W.1 is a competent person to accord sanction and Ex.P1-sanction order is valid in law. So the findings of the Special Court in respect of Ex.P1 does not warrant any interference.
10.Now this Court has to consider whether the explanation offered by A1 for the disproportionate wealth, are acceptable? Before that, this Court has to decide what is the income of A1 and expenditure incurred by A1 during the check period (i.e.) 1.1.1995 to 31.12.2001. It is pertinent to note that at the time of filing charge sheet, the case of prosecution is that assets of A1 as on 1.1.1995 is Rs.40,641/-. But at the end of 31.12.2001, assets stood to the credit of A1 and his family is Rs.30,28,838/-. During the check period, the income of accused and his family is Rs.19,55,801/-, expenditure is Rs.16,55,177.00, Assets acquired by A1 and his family members at the end of check period is Rs.29,88,197/-, his savings is Rs.3,00,624/-. Therefore, the disproportionate assets acquired by A1 and his family is Rs.26,87,573/-. The percentage of disproportionate assets has been calculated as 137%. After examining the witnesses before the Special Court, expenditure of the family is Rs.10,85,336.55, savings is Rs.8,70,464.45, disproportionate assets is Rs.21,17,732.55. The percentage of disproportionate assets is mentioned as 108%.
11.The learned senior counsel for the respondents would take me through explanation offered by A1 under Ex.P44 and submitted that A1 mentioned all the income and expenses he met out. Furthermore, he had obtained GPF loan to the tune of Rs.45,000/- in the month of February 1998 and Rs.71,000/- in the month of April 2000. While calculating the income of A1, the above amount has not been considered by the investigating agency. But the Special Court in para-27 of its judgment, considered the same. It is further submitted that an agreement was entered into between A2 and one Rathnam and they formed a partnership firm in the name of Ohm Travels and the partnership deed came into existence on 10.04.1991, which was much prior to the check period (i.e.) 1.1.1995, when it was dissolved, A2 has received Rs.3,60,000/- as her share in the partnership business of Ohm travels. So I am of the view, the Special Court is correct in holding in para-26 of its judgment, Rs.3,60,000/- was also included as income of the accused. All the above particulars have been furnished by first respondent/A1 under Ex.P44 to the investigating agency, before filing charge sheet. P.W.7-Investigating agency had not considered the document and he had not examined those persons.
12.At this juncture, it is relevant to consider the argument advanced by the learned counsel for the respondents, who culled out some portion of evidence of P.W.7 and submitted that P.W.7 in vindictive manner wantonly suppressed the document and obtained sanction from P.W.1. In the evidence of P.W.7, it is stated as follows:
" /// //m/rh/M/43. 44 v/rh/1 kw;Wk; 2tJ vjphpapd; thf;F_yk; ntz;Lbkd;nw jhf;fy; bra;atpy;iy vd;why; cz;ikjhd;/ mitfs; ntz;Lbkd;nw jhf;fy; bra;atpy;iy vd;why; rhpjhd;/ // // @ Its shows that P.W.7 with malafide intention roped A1/R1 into this case and he wantonly not produced the explanation submitted by A1 and A2. It is the duty of investigating officer to place all the materials and after perusing all the materials, he should calculate the disproportionate assets. As already stated that A1 obtained GPF loan to the tune of Rs.45,000/- and Rs.71,000/- and the income of A2 by Ohm travels is Rs.3,60,000/-, but those amounts have not been taken into account by the investigating agency. But the Special Court is rightly taken into account the above amounts, while calculating income of A1 and his family members.
13.D.W.1 is the brother of A1/R1, who was entered into an agreement with A2 for construction of first floor in their house and D.W.1 provided Rs.13,00,000/- for the same. It is true, that agreement was unregistered one. While considering the evidence of D.W.1, he deposed that he was in Dubai and he sent money to his wife. Through one Venugopal Raja, A2 has received money from his wife and the receipts of money were marked as Ex.D2. Admittedly, the said Venugopal Raja was not examined before the Court, so the receipts issued by him are not an admissible evidence.
14.Learned Government Advocate (Crl. Side) is challenging Ex.D3-receipts issued by A2. But I do not find any discrepancy in the receipts given by A2. Since she is a house wife, she has signed the receipts as if she written the name and it will not fasten any criminal liability against her. In such circumstances, the argument advanced by the learned Government Advocate (Crl. Side) that all the receipts pertaining to Ex.D3 are issued only on the same day, does not merit acceptance. Since Ex.D4 did not contain any signature, I am of the view, it is not an admissible evidence. Since D.W.1 himself admitted that he paid Rs.13,00,000/- for construction of first floor, there is no reason for discarding his evidence. Hence, the Special is correct in taking into account of Rs.13,00,000/-, while calculating the income of respondents/accused.
15.D.W.2 was the jewellery shop owner and to prove the same, he marked the membership card. He deposed that A2 sold 25 sovereigns of gold jewels and received Rs.1,17,050/- from him. So there is no reason for discarding his evidence. Hence, I am of the view, A2 sold 25 sovereigns of gold jewels and received Rs.1,17,050/- as sale proceeds (i.e.) one more source of income during the check period.
16.D.W.3 who is none other than brother of A2, deposed that his elder brother Maniraj and himself contributed a sum of Rs.50,000/- to their sister for construction of the building and their mother also paid Rs.50,000/- during her lifetime. After the death of their father, since they are having only one sister, they also provided the death cum retirement benefit of their father and they also gave the gold jewels of their mother to A2. So there is no reason for discarding his evidence. Because the father of D.W.3 is the Production Manager of Jute Factory at Vizhakapatinam and till his death, he was employed. D.W.3 and his elder brother were employed and A2 is their only sister. Since they want to settle some property in the name of their sister, they provided her funds for purchasing the disputed property, after the death of their father.
17.At this juncture, it is appropriate to consider the evidence of P.W.3, who sold the property in favour of A2. P.W.3 stated that before purchasing the property, A2 stated that her relative, who parted with money, did not bring the money and after receipt of the money from A2, the document was executed and registered. So that factum has clearly proved that D.W.3 gave financial assistance to her sister for purchasing the property and that factum was proved by the evidence of P.W.3. But the same has not been considered by the investigating agency. Even though investigating agency has taken much pain to collect the educational expenses of the children of the accused and electricity charges and telephone charges and LPG consumption charges, they did not consider the explanation submitted by R1&R2/A1&A2.
18.At this juncture, it is appropriate to consider the decision relied upon by the learned Government Advocate (Crl. Side) reported in 2009 Crl.L.J. 1767 (N.Ramakrishnaiah (dead) through Lrs. v. State of A.P.) and submitted that mere offering explanation is not sufficient, the source must be proved satisfactorily. It is appropriate to incorporate para-15 of the above decision.
"15. .. .. Other income which can conceivably be income qua the public servant will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime or immoral secretions by persons prima facie would not be receipt for the "known sources of income" of a public servant. The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily" and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance. "
19.For the same proposition, he also relied upon the decision reported in 2004 Crl.L.J. 598 (State of Madhyapradesh v. Awadh Kishore Gupta and others) and submitted that burden is cast on accused not only to offer plausible explanation as to acquisition of large wealth. But also to satisfy Court that explanation is worthy of acceptance. It was held as follows:
" .. .. These essential characteristics are vital in understanding the term 'income'. Therefore, it can be said that, though 'income' is receipt in the hand of its recipient, every receipt would not partake into the character of income. Qua the public servant, whatever return he gets of his service, will be the primary item of his income. Other incomes which can conceivably are income qua the public servant, will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime, or immoral secretions by persons by persons prima facie would not be receipt for the "known sources of income" of a public servant. The legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily" and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance. "
It is true, the duty of the accused to prove the explanation submitted by them satisfactorily. As already discussed in the earlier paragraph, the documents as well as the evidence of D.W.1 to D.W.3 are proved, but the investigating agency has not been considered the explanation submitted by A1 and on contrary, the Special Court has considered the explanation submitted by A1.
20.The learned counsel for the respondents/accused submitted that the property was purchased by A2/wife of the public servant out of funds provided by her brothers and first floor was constructed out of the amount received from D.W.1. A1 on his part satisfactorily establishing that the property belonging to his wife in the absence of any evidence that the assets belonging to the accused, he cannot be held liable under Prevention of Corruption Act for amassed wealth. It is appropriate to incorporate para-16 and 17 of the decision reported in (2006) 1 SCC 420 (DSP, Chennai v. K.Inbasagaran), which stated as follows:
"16.Therefore, the initial burden was on the prosecution to establish whether the accused has acquired the property disproportionate to his known source of income or not. But at the same time, it has been held in State of M.P. Vs. Awadh Kishore Gupta and Others reported in (2004) 1 SCC 691 that accused has to account satisfactorily for the money received in his hand and satisfy the court that his explanation was worthy of acceptance. In order to substantiate the plea taken by the accused that all the moneys which had been received belonged to his wife and in support thereof he has examined as many as 13 witnesses including himself, his wife and his son-in-law. D.W. 12 is the wife of the accused. She has deposed that the entire money belonged to her. She has admitted the raid on her house and she has also admitted that she has amassed the wealth by selling cycle rims and leather products without any bill and out of the money amassed by her she had persuaded her husband to deposit the same at various Banks. She has come forward and admitted the recovery of the foreign exchange at her house and she has accounted for the same. She has also admitted the recovery of the gold ornaments at her house and she has explained that she has purchased those gold ornaments. She has also submitted that some real estate was purchased out of self-earning as well as the loan from the mother of the son-in-law and some contribution was made by the son-in-law and the son-in-law has also admitted. Likewise, D.W.8 - her son-in-law, Thiru S.Rajasankar also appeared in the witness box and admitted that he had also saved certain foreign exchange when he had gone on various visits abroad. He has also admitted to have carried some money to be deposited in the Bank. The accused has also come forward in the witness box as D.W.13 and has deposed that all the moneys belonged to his wife and when he came to know about the unaccounted money at his house, he gave his piece of mind to her. He has admitted that on one or two occasions the money was carried by himself to be deposited in the account in Punjab National Bank and some money was also deposited on account of some of the members of the family by D.W.8, S. Rajasankar, son-in-law. Therefore, under these circumstances, the respondent has explained the possession of unaccounted money. 17.Now, in this background, when the accused has come forward with the plea that all the money which has been recovered from his house and purchase of real estate or the recovery of the gold and other deposits in the Bank, all have been owned by his wife, then in that situation how can all these recoveries of unaccounted money be laid at his hands. The question is, when the accused has provided satisfactorily explanation that all the money belonged to his wife and she has owned it and the Income-tax Department has assessed it in her hand, then, in that case, whether he could be charged under the Prevention of Corruption Act. It is true that when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband as the case may be, it cannot be fastened on the husband or the head of the family. It is true that the prosecution in the present case has tried its best to lead the evidence to show that all these moneys belonged to the accused but when the wife has fully owned the entire money and the other wealth earned by her by not showing in the Income-tax returns and she has accepted the whole responsibilities, in that case, it is very difficult to hold the accused guilty of the charge. It is very difficult to segregate that how much of the wealth belonged to the husband and how much belonged to the wife. The prosecution has not been able to lead evidence to establish that some of the money could be held in the hands of the accused. In case of joint possession it is very difficult when one of the persons accepted the entire responsibility. The wife of the accused has not been prosecuted and it is only the husband who has been charged being the public servant. In view of the explanation given by the husband and when it has been substantiated by the evidence of the wife, the other witnesses who have been produced on behalf of the accused coupled with the fact that the entire money has been treated in the hands of the wife and she has owned it and she has been assessed by the Income-tax Department, it will not be proper to hold the accused guilty under the prevention of Corruption Act as his explanation appears to be plausible and justifiable. The burden is on the accused to offer plausible explanation and in the present case, he has satisfactorily explained that the whole money which has been recovered from his house does not belong to him and that it belonged to his wife. Therefore, he has satisfactorily accounted for the recovery of the unaccounted money. Since the crucial question in this case was of possession and the premises in question were jointly shared by the wife and the husband and the wife having accepted the entire recovery at her hand, it will not be proper to hold the husband guilty. Therefore, in these circumstances, we are of the opinion that the view taken by the High Court appears to be justified and there are no compelling circumstances to reverse the order of acquittal. Hence, we do not find any merit in this appeal and the same is dismissed. "
21. He relied upon the decision reported in (2011) 4 SCC 402 (Ashok Tshering Bhutia v. State of Sikkim) and submitted that unexplained income was merely a paltry sum which any Government employee could save every year. Hence, the respondents/accused are not guilty for possession of amassed wealth disproportionate to the known source of income.
22.By relying upon the decision reported in 2006-2-L.W.(Crl.) 758 (State represented by the Deputy Superintendent of Police, Vigilance and Anti-corruption, Cuddalore Detachment v. K.Ponmudi), the learned counsel for the respondents submitted that it is not fair on the part of the investigating officer to suppress materials which may be favourable to the accused. He further submitted that when a public servant disowned the assets owned by other co-accused particularly stating that they have got independent source of income and that they are not his benamies, it is the duty of the investigating officer to send a questionaire to the co-accused to account for the quantum of assets at their hands. But, unfortunately, the investigating officer failed to issue notice to the co-accused to account for the quantum of assets in their hands. In the case on hand, A2 submitted her explanation. But however, on perusal of the evidence of P.W.7-Investigating officer, he has fairly conceded that he has not produced the statement of A2 and he further deposed that he has not furnished the same wantonly. As per the decision rendered by this Court, it is not fair on the part of the investigating agency to suppress the materials which may be favourable to the accused.
23.As per the statement given by A2, she acquired the plot on 2.11.1995 measuring 3,226 sq.ft. for the sale consideration of Rs.4,70,000/- and the sale deed was marked as Ex.P15. So that amount has to be deducted. This Court made the following calculations:
(i)A2 sold her 25 sovereigns jewels to D.W.2 and received Rs.1,07,750/-.
(ii) As per the evidence of D.W.1, A2 received Rs.13,00,000/- from him for construction of first floor through one Venugopal Raja from the wife of D.W.1.
(iii) A1 obtained GPF loan for Rs.45,000/- and Rs.71,000/-, totally, Rs.1,16,000/-.
(iv) A2 received her share as Rs.3,60,000/- from Ohm Travels, where she was a partner, at the time of dissolution of partnership firm.
(v) Brothers of A2 viz., D.W.3 and one Maniraj contributed a sum of Rs.50,000/- to A2.
(vi) Mother of A2, during her lifetime, she contributed a sum of Rs.50,000/- to A2.
Hence, the total known source of income of the accused comes to Rs.19,83,750/-.
The learned Special Judge in para-28 of its Judgment, he stated that the total expenditure of the accused family during the check period is Rs.7,55,481/- but whereas in the statement No.VI, the expenditure was shown as Rs.10,85,336.55 which not only includes family consumption expenses but also includes the payment for LIC premium and purchase of stamp papers for registration of the document and also repayment of loan. In such circumstances, I am of the view, the Special Court erred in calculating that the expenditure is only Rs.7,55,481/-.
24.As already discussed in the above paragraph, the known source of income of the accused is calculated as Rs.19,83,750/-. As per Statement No.VII, the disproportionate assets acquired by A1 and his family members is Rs.21,17,732.55. As per the dictum of the Apex Court laid down in (2011) 4 SCC 402 (Ashok Tshering Bhutia v. State of Sikkim) and submitted that unexplained income was merely a paltry sum which any Government employee could save every year. Hence, I am of the view, the respondents/accused are not guilty for possession of wealth disproportionate to the known source of income. As already stated that if two views are possible, the view favourable to the accused alone taken into consideration. In such circumstances, I am of the view, the judgment of acquittal passed by the Special Court does not warrant any interference and therefore, it is hereby confirmed.
25.In fine, The Criminal Appeal is dismissed by confirming the judgment of acquittal dated 30.06.2010 made in C.C.No.31 of 2007 on the file of the learned Ist Additional Sessions-cum-Special Judge, Chennai.
Consequently, connected Miscellaneous Petition is closed.
22.03.2012 Index:Yes Internet:Yes kj R.MALA,J.
kj To
1.The Inspector of Police Department of Vigilance and Anti-corruption, City Special Unit-II Chennai-600 035.
2. Ist Additional Sessions-cum-Special Court Chennai.
3.The Public Prosecutor High Court, Madras.
4.The Record Keeper Criminal Section, High Court, Madras.
Pre-delivery Judgment made in Criminal Appeal No.528 of 2010 22.03.2012