Karnataka High Court
K Chikkaveeraiah vs State By Lokayukta Police on 30 September, 2024
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NC: 2024:KHC:42615
CRL.A No. 1185 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 1185 OF 2011 (C)
BETWEEN:
K. CHIKKAVEERAIAH
S/O LATE KEMPAVEERAIAH
AGED ABOUT 62 YEARS
NO.6, E & F BLOCK
RAMAKRISHNA NAGAR
MYSORE
...APPELLANT
(BY SRI. C.H. JADHAV, SENIOR ADVOCATE FOR
SRI. CHETAN JADHAV, ADVOCATE)
AND:
STATE BY LOKAYUKTA POLICE
MYSORE
...RESPONDENT
Digitally signed by
SHAKAMBARI (BY SRI. B.S. PRASAD, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA THIS CRL.A IS FILED U/S. 374(2) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:03/11/11 PASSED BY THE PRL.
SESSIONS AND SPL. JUDGE, MYSORE IN SPL.C.NO.25/2005 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 13(1)(e) R/W 13(2) OF THE PREVENTION OF
CORRUPTION ACT.
THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
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NC: 2024:KHC:42615
CRL.A No. 1185 of 2011
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) The accused has called in question the judgment of his conviction and order of sentence dated 3rd November 2011 passed in Special Case No.25/2005 by the Principal Sessions Judge and Special Judge to try cases under the Prevention of Corruption Act, 1988, Mysuru convicting and sentencing him for the offences punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short `the PC Act').
2. For the sake of convenience, parties to this appeal are referred to as per their rank before the trial Court.
3. That accused was charge-sheeted by the respondent-Lokayukta Police, Mysuru for the offences under Section 13(1)(e) read with Section 13(2) of PC Act. It is alleged that, the accused, during his tenure as a Junior Engineer in Karnataka Public Works Department during the check period commencing from 24.05.1978 to -3- NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 07.07.1999 was found possessing pecuniary resources to an extent of Rs.16,67,560/- in excess to his known source of income and when enquired, he has not satisfactorily accounted for the same and thus it amounted to criminal misconduct within the purview of aforesaid Section 13(1)(e) of PC Act.
4. It is alleged by the prosecution that, on an open enquiry so conducted by the investigating agency, this accused joined the services as a Junior Engineer in KPWD on 24.05.1978. On collecting the report by the Investigating Agency, it was revealed that, he held accounts disproportionate to his known source of income. Therefore, based upon the report, a crime in Crime No.11/1999 came to be registered by the Lokayukta Inspector Santhosh Kumar. On obtaining the search warrant from the Special Court Mysuru dealing with the cases under PC Act, the house of the accused and other four houses of his relatives were raided on 8.7.1999. The source report so submitted by the Lokayukta Inspector -4- NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 disclosed that the accused has amassed wealth disproportionate to his known sources of income to the extent of 175% more than his savings. The Lokayukta Inspector was instructed to conduct investigation and he submitted the final report wherein it was noticed by the investigation agency that the total check period commencing from 30.4.1978 to 7.7.1999 the total salary of the accused was Rs.6,49,264/. He also had income from sale of site bearing No.1260 situated at Saraswathipuram, Thonchikoppala Extension, Mysuru worth Rs.1,74,934/-, the income from salary of younger son K.C.Ananda was accounted for Rs.20,872/- and income from salary of his elder son Sri K.C.Shashidhar was Rs.1,04,648/-, in all total income of the accused Rs.9,49,073/-.
5. The following tabulation shows the income and assets earned by the appellant/DGO during the check period.
-5- NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 PÀæªÀÄ DzÁAiÀÄzÀ «ªÀgÀ ªÀiË®å ¸ÀASÉå 1 ªÉÃvÀ£À DzÁAiÀÄ (¨sÁUÀ-) 6,49,264-00 2 ¤ªÉñÀ£À ªÀiÁgÁl¢AzÀ §AzÀ DzÁAiÀÄ 1,74,934-00 3 QjAiÀÄ ¥ÀÄvÀæ D£ÀAzïgÀªÀgÀ ªÉÃvÀ£ÀzÀ DzÁAiÀÄ 20,872-00 4 »jAiÀÄ ¥ÀÄvÀæ qÁ:PÉ.¹.±À²zsÀgïgÀªÀgÀ DzÁAiÀÄ 1,04,648-00 SÁ¸ÀV MlÄÖ ªÉÆvÀÛ gÀÆ. 9,49,718-00 PÀæªÀÄ D¹ÛAiÀÄ «ªÀgÀ ªÀiË®å gÀÆ. ¸ÀASÉå 1 DgÉÆævÀ ¸ÀPÁðj C¢üPÁjAiÀĪÀgÀ ¥Àwß ²æêÀÄw 1,04,221-00
ºÉZï. ¥ÀzÀä EªÀgÀ ºÉ¸Àj°ègÀĪÀ ¸ÀA.6 zÀlÖUÀ½î, gÁªÀÄPÀȵÀÚ£ÀUÀgÀ, PÀĪÉA¥ÀÄ£ÀUÀgÀ, ªÉÄʸÀÆgÀÄ ¤ªÉñÀ£À ªÀiË®å 2 ¸ÀzÀj ¤ªÉñÀ£ÀzÀ°è PÀnÖ¹gÀĪÀ ªÀÄ£ÉAiÀÄ ªÀiË®å 4,27,000-00 3 qÁ: PÉ.¹. ±À²zsÀgï EªÀgÀ ºÉ¸Àj£À°è EqÀ§ÆèöåJ¸ï 1,85,000-00 ªÀÄ.£ÀA.1039, ¤ªÉñÀ£ÀzÀ ªÀiË®å 4 »ÃgÉÆúÉÆAqÁ ªÉÆÃmÁgï ¸ÉÊPÀHï ªÁºÀ£À 33,317-00 ¸ÀASÉå:PÉJ 09 ºÉZï 7528 gÀ ªÀiË®å 5 UÀȺÉÆÃ¥ÀAiÉÆÃV ªÀ¸ÀÄÛUÀ¼ÀÄ 3,71,845-42 6 a£ÁߨsÀgÀtUÀ¼À ªÀiË®å 1,12,415-00 7 ¨É½î ªÀ¸ÀÄÛUÀ¼ÀÄ 5,502-00 8 ¥Àwß ²æêÀÄw ºÉZï. ¥ÀzÀä EªÀgÀ ºÉ¸Àj£À°ègÀĪÀ 841-00 ªÉÄʸÀÆgÀÄ fHÁè ªÀÄ»¼Á ¸ÀºÀPÁgÀ ¨ÁåAPï ¤AiÀÄ«ÄvÀ SÁvÉ £ÀA.272 gÀ°è£À CAwªÀÄ ²®ÄÌ 9 ²æà aPÀÌ«ÃgÀAiÀÄå EªÀgÀ ºÉ¸Àj£Àè°gÀĪÀ PÉ£ÀgÁ 2,624-00 ¨ÁåAPï PÀĪÉA¥ÀÄ£ÀUÀgÀ ±ÁSÉ ªÉÄʸÀÆgÀÄ E°è ºÉÆA¢gÀĪÀ G½vÁAiÀÄ SÁvÉ £ÀA.12393 gÀ°è£À CAwªÀÄ ²®ÄÌ -6- NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 10 ¸ÀzÀj ¨ÁåAPï£À°è ²æÃ.PÉ.¹. D£ÀAzï EªÀgÀ 515-00 ºÉ¸Àj£À°ègÀĪÀ G½vÁAiÀÄ SÁvÉ £ÀA.12975 gÀ°è£À CAwªÀÄ ²®ÄÌ 11 ªÉÄʸÀÆgÀÄ r¸ÀÖçPïÖ ªÀÄ»¼Á PÉÆà D¥ÀgÉÃnªï 1,250-00 ¨ÁåAPï °. E°è ±ÉÃgÀÄ £ÀA.JHïJ¥sï 293:1 gÀ°è ¥Àwß ²æêÀÄw ¥ÀzÀä EªÀgÀÄ ºÉÆA¢gÀĪÀ ±ÉÃgÀÄ ºÀt 12 ªÉÄîÌAqÀ ¨ÁåAQ£À°è ¥ÀÄwæ ²æêÀÄw PÉ.¹. ¥ÀÄ¥Àà®vÁ 500-00 EªÀgÀÄ ºÉÆA¢gÀĪÀ ±ÉÃgÀÄ ºÀt 13 ¸ÀzÀj ¨ÁåAQ£À°è ¥ÀÄwæ ²æêÀÄw PÉ.¹. ¥ÀÄ¥Àà®vÁ 843-00 EªÀgÀÄ ºÉÆA¢gÀĪÀ G½vÁAiÀÄ SÁvÉ £ÀA:
1:112 gÀ°è£À CAwªÀÄ ²®ÄÌ
14 DgÉÆævÀ ¸ÀPÁðj C¢üPÁjAiÀĪÀgÀÄ ºÁUÀÆ CªÀgÀ 1,08,000-00 ¥ÀÄvÀæ PÉ.¹.D£ÀAzÀ EªÀgÀÄ PÀ£ÁðlPÀ PÀAmÁæPÀÖgï ¸ÀºÀPÁgÀ ¨ÁåAPï ¤., ªÉÄʸÀÆgÀÄ E°è ºÀÆrgÀĪÀ oÉêÀt 15 ¤«ÄµÁA§ ¥sÉÊ£Á£ïì PÁ¥ÉÆðÃgÉõÀ£ï zÉêÀgÁd 29,900-00 gÀ¸ÉÛ, ªÉÄʸÀÆgÀÄ E°è ¥ÀÄvÀæ ²æÃ. PÉ.¹.D£ÀAzï, ¥ÀÄwæ PÉ.¹.¥ÀÄ¥Àà®vÀ ºÁUÀÆ ¥Àwß ¥ÀzÀä EªÀgÀÄ ºÀÆrgÀĪÀ oÉêÀtÂAiÀÄ MmÁÖgÉ ªÉƧ®UÀÄ 16 zÀÆgÀªÁt ¸ÀASÉå: 566168 gÀ ¸ÀA§AzsÀ 1,000-00 ¥ÁªÀw¸ÀHÁzÀ oÉêÀt 17 PÉE© «ÄÃlgï £ÀA.DgïDgï ¸ÀA.J 33415PÉÌ 5 1,370-00 ¨Á§ÄÛ ¥ÁªÀw¸ÀHÁzÀ oÉêÀt ºÀt 18 CrUÉ C¤® UÁæºÀPÀ ¸ÀASÉå ¨Á§ÄÛ ¥ÁªÀw¸ÀHÁzÀ 950-00 oÉêÀt ºÀt MlÄÖ gÀÆ 13,87,093-42
6. Thus, the Investigating Agency assessed excess assets and expenditure of the accused at 175.58% in excess of total income. Accordingly, Charge-sheet was filed against the accused for the aforesaid offences and accused was tried by the Special Court. -7-
NC: 2024:KHC:42615 CRL.A No. 1185 of 2011
7. To bring home the guilt of the accused, prosecution in all examined 15 witnesses as PWs. 1 to 15 and got marked number of documents from Ex.P1 to P83 and closed prosecution evidence. On completion of the evidence of the prosecution, accused was questioned under Section 313 of Cr.PC so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution witnesses. He denied his complicity in the crime. To rebut, the evidence of the prosecution, he examined 15 witnesses in all and got marked Ex.D1 to D49. The prosecution also relied upon the material objects marked at MOs. 1 to 37.
8. The learned Special Court on hearing the arguments and on evaluation of the evidence found the accused guilty for the aforesaid offence and sentenced him as under:
"The punishment provided for the offence punishable U/Sec.13(1)(e) r/w Sec.13(2) of the Prevention of Corruption Act, 1988 and the public servant who commits criminal misconduct, shall be punishable with imprisonment, which shall not be -8- NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 less than one year, but which may extend to seven years and shall also be liable to pay fine.
In keeping the Penal provisions and also the gravity of the offence, the accused is sentenced to undergo Rigorous Imprisonment for Two years and shall pay fine double the excess amount, which is disproportionate to the known source of income of the accused i.e., Rs.11,56,926.36 and the same is rounded off to Rs.12,00,000/- and in default to make the fine amount, the accused shall undergo further Rigorous Imprisonment of One year and it will meet the ends of justice. The fine amount shall go to the State Exchequer."
9. This is how now the appellant-accused is before this Court challenging the judgment of his conviction and order of sentence.
10. During the course of arguments, the learned Sr.Counsel for the appellant-accused Sri C.H.Jadhav submits that, the learned trial Court has not considered the oral and documentary evidence lead by the prosecution as well as accused by way of defence evidence. He submits, that the Court below simply disbelieved the substantial evidence of the accused by way of defence evidence and believed part of the prosecution -9- NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 case and simply convicted the accused. He submits that, accused during the course of the service never had any blemished service and he never amassed any wealth in excess to his known of source of income. He hardly possessed any immovable property except one house built in an area measuring 40' x 60' at Mysore. It is his further submission that, the assets which the accused is said to have excess in possession is marginal and negligible one. Having put in more than 20 years of service and also he was possessing considerable extent of agricultural properties, his two sons are earning members. He is still residing in the joint family and he has got a share in the joint family agricultural income to the extent of Rs.8,250/- and he was also entitled for Rs.9,500/- as share in the sale proceeds which belongs to his joint family property, but, the said fact is not considered by the learned trial Court. It is his further submission that, the agricultural income during the check period to the extent of Rs.38,27,023/- and his 1/4th Share Rs.8,70,400/- is not taken into consideration by the learned trial Court.
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011
11. Sri C.H.Jadhav, learned Sr.Counsel submits that, event the joint family of the accused had an agricultural income of more than Rs.38,000/- during the check period which probabalize from the evidence of DW.3 and 4 who are the own brothers of the accused. Evidence of DW.8, the village accountant who prepared Ex.D2 and D3 is based upon the instructions of the IO, but, the learned trial Court has disbelieved the evidence of DW.8. Even the DW.8 was not consulted by the officers of the agricultural department and also the neighbouring owners of the landed properties, thus, approximately, the income was calculated which is far from truth after the report prepared by the investigating agency. The Court below has not taken into consideration the agricultural income. It wrongly disallowed the plea of the accused and his son DW.13 Dr.Shashidhar that, he had an additional income of Rs.1,35,000/- which fact has been proved from the evidence of DW.13 Dr.Shashidhar. So also, DW.13 is doing normal practice and also could earn Rs.1,35,000/- within two or three years from his private practice. It is his
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 further submission that, his son also having income to the extent of Rs.35,000/- from his private practice. It is his further submission that, the learned trial Court wrongly disallowed the claim of the accused with regard to the borrowing of Rs.1,00,000/- from Yalakki Gowda which is proved by the transactions during the year 1991-92 and such a practice proved from the evidence of DW.1 Y. Mahesha who is son of Yalakki Gowda. The said creditor is no more.
12. The trial Court ought to have considered the evidence of DW.5 Rangaswamy the maternal uncle of Dr.Shashidhar who had lent Rs.2,50,000/- for education of Dr.Shashidhar. even the evidence of DW.5 is corroborated with evidence of PW.13 as per the stamp paper so produced dated 5.12.1999. The trial Court having held that accused had Rs.24,000/- towards travelling allowance should not have disallowed on that ground which had been used for buying fuel for the motorcycle. The trial Court ought to have believed the evidence of Padma the wife of
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 the accused to the effect that her father had given Rs.50,000/- as gift to buy the site. The trial Court has failed to consider that the accused came from a joint agricultural family. It is further submitted that the trial Court has not properly accounted the income and expenditure of the accused and wrongly has believed the entire report of the IO and wrongly come to the conclusion that accused has committed the offence under the provisions of Section 13(1)(e) read with Section 13(2) of the Act.
13. Amongst other grounds, relying upon the various evidence spoken to by the witnesses as well as other factual evidence, it is submitted by the counsel for the appellant-accused that, the factual aspects brought on record have not been properly considered and wrongly the trial Court has passed the impugned judgment which requires interference by this Court. He submits that, the reasons assigned by the trial Court are not in consonance with the evidence brought on record and simply the trial
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 Court has believed the report of the IO and has found the accused guilty. He submits to allow the appeal and set aside the impugned judgment.
14. On the other hand, the learned Special Public Prosecutor Sri B.S.Prasad representing the Lokayukta submits, that, though the accused was appointed as a Junior Engineer and had meager salary at the time of appointment, but, on getting the information regarding amassing wealth by the accused disproportionate to his income, the complaint was registered against the accused with due permission of the Special Court on obtaining search warrant, not only the house of the accused was searched, but also, the other four houses of the relatives of the accused were searched. The detailed report was prepared based upon the inventories and panchanamas prepared by the IO and it is a definite case of the prosecution that this accused has amassed wealth disproportionate to his income. He supported the reasons assigned by the trial Court in convicting and sentencing
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 the accused. He prays to dismiss the appeal. In support of his submission, he relied upon the judgments of the Apex Court in State of Tamil Nadu by Inspector of Police, Vigilence and Anti-corruption vs. N.Suresh Rajan and others reported in (2014) 11 SCC 70.
15. In reply to this submission, learned Sr.Counsel for the appellant Sri C.H.Jadhav, denying all the submission made by the Special Public Prosecution, submits that, the said judgment so relied upon by the Special Public Prosecutor has no application to the present facts of the case. Facts of this case are quite different than the facts of that case. He too relies upon the judgments of the Hon'ble Apex Court reported in (2022) 7 SCC 157 in between Mahendra Singh vs. State of Madhya Pradesh as well as 2024 SCC Online SC 1667 in between Rathnu Yadav vs. State of Chhattisgarh. He submits that the factual aspects so brought on record by the prosecution never warrants to convict the accused. He also relies upon another judgment 2023 SCC Online
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 Patna 6764 between Shankar Chowdhary vs. State of Bihar and others in Crl.Appeal No.325/2017.
16. I have given my anxious consideration to the arguments of both the side, meticulously perused the record. In view of the rival submissions of both the side, the only point that would arise for my consideration is:
"Whether the learned trial Court is justified in finding the accused guilty of committing the offence under Section 13(1)(e) read with Section 13(2) of PC Act, 1988 or otherwise?"
17. Before adverting to the other aspects of the case, let me analyze certain admitted facts between both the parties.
18. The accused joined the services with KPWD as a Junior Engineer on 24.05.1978. It is also not in dispute that, the investigating agency has recorded the check period as commencing from 24.05.1978 to 07.07.1999. During this period, the accused had total salary being
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 drawn was Rs.6,49,264/- . He also had shown the income from sale of site bearing NO.1260 of Saraswathipuram, Chonchikoppala Extension, Mysure for Rs.1,74,934/-. As per the defence of the accused, his younger son K.C.Anand drew the salary of Rs.20,872/- from his employment. His elder son Dr.K.C.Shashidhar is not only drawing salary from his profession but also earning income from private practice to the extent of Rs.1,04,648/- as per the calculation done by the investigating officer.
19. During the course of investigation, the heads of assets have been mentioned in the final report so also expenditure. The trial Court has given the tabulation of total assets and liabilities of the accused during the check period.
20. Now we have to ascertain, whether the prosecution is able to establish its case beyond all reasonable doubt. Because under the PC Act, heavy burden is on the prosecution to prove the guilt of the accused as this case mainly based upon the documents
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 and valuation of properties. While conducting investigation, it is expected from the investigation agency to prepare report of total assets and liabilities of the Delinquent Government Officer and also calculate his total income from all sources not only from his salary but, also from other known sources which are legally admissible in evidence.
21. As per the defence of the accused, not only he is having the employment in KPWD but, also he is still residing in the joint family. His joint family is possessing the agricultural lands and from the agricultural lands he is having income. Even his wife's father i.e. father in law had gifted Rs.50,000/- to his wife to purchase a site. So also his sons are earning. If that so, according to him, whatever the income being earned not only by himself but also by his sons as well as gift of Rs.50,000/- from his father-in-law is to be accounted for. As his daughter is married and residing in her matrimonial home, when she has owned the gold ornaments, her gold ornaments are to
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 be accounted to the family of son-in-law. But, that also has been included by the IO at the time of search. According to the argument of the learned counsel for the appellant, all is not well with the case of the prosecution. So many things have been left out of by the IO and he has not accounted for the same. Further he submits, the very sanction so obtained by the IO is not proper. He submits that, evidence of PWs.1 to 15 though adduced by the prosecution but, their evidence is not a truthful evidence. Whereas, by examining the evidence of Dws. 1 to 15 by way of defence evidence whatever the evidence lead by the prosecution has been rebutted by the accused. So the inference has to be drawn that the defence has probabalized its defence and therefore, the evidence of these PWs. 1 to 15 has to be discarded.
22. As it is a case registered under the provisions of the PC Act, 1988, as the accused was the public servant, before prosecuting the accused, the sanctioning authority has to issue sanction to prosecution. The said sanction
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 must be a valid sanction. Once the sanction is valid, then the question arises that, whether prosecution is able to establish the guilt of the accused under the provisions of PC Act. That means, obtaining of sanction is a mandatory under the provisions of PC Act.
23. To substantiate the factum of sanction, the learned trial Court has raised a point for consideration at Point No.1. It is stated by the learned trial Court relying upon Ex.P81, the sanction order that, in the light of sanction order issued by the sanctioning authority as per Ex.P20(81), the said sanctioning authority has issued sanction while performing official duties. Therefore, relying upon the judgment of the Hon'ble Apex Court in State of M.P. v. Jiyalal, reported in AIR 2010 SC 1451, it is held that, sanctioning authority has issued the sanctioning in performance of the official duties. Therefore, presumption attached to such an order. It is held that, examination of the sanctioning authority is not necessary.
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011
24. It is submitted that, sanction order is at Ex.P81. Though it is argued by learned Senior Counsel Sri C.H.Jadhav that, sanction is invalid but, in view of the evidence brought on record by the prosecution by getting marked Ex.P81 shows that, sanctioning authority has issued sanction after satisfying that, there is prima facie case made out by the prosecution to proceed against the accused. Even under the provisions of Indian Evidence Act, a presumption is available under Section 114 of the Act with regard to issuance of sanction, as per the judgment of Hon'ble Apex Court. So, the learned trial Court is justified in holding that, the sanction order so issued by the sanctioning authority as per Ex.P81 is a valid sanction. There is no specific ground made out in the appeal memo that sanction so issued at Ex.P81 is invalid sanction. Thus, I do not find any factual or legal error of satisfaction by the sanctioning authority in issuing sanction as per Ex.P81. So, therefore, sanctioning authority has issued the sanction after going through material placed before it by the IO, such as FIR, complaint, report, statement of the
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 witnesses etc.. Thus, the learned trial Court is right in holding that, the sanction order is valid order.
25. Now coming to the oral evidence lead by the prosecution with regard to the proof of the offence made out against the accused.
26. Several documents are marked in this case. I would like to refer the evidence of the witnesses and while discussing the evidence the documents marked in this case are also referred in the course of judgment.
27. PW.1 Gopalakrishna S/o.late Mahadevaswamy was examined by the prosecution who accompanied the investigating agency at the time of conducting the raid. So far as the conducting of raid by the investigating agency, it is not in dispute. It is his evidence that, in the year 1999, as per the instructions of his superior officers, he went to the office of the lokayukta, and on instructions of lokayukta inspector, he went on the day of conducting raid at 5.30 a.m. At 5.45 a.m, they went to
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 Ramakrishnanagar in a police jeep. The said jeep was stopped in front of a house at Ramakrishnanagar, when the calling bell was put on, accused came out who was present before the Court when he gave evidence. On showing the search warrant, the search warrant was executed and search was made in the house of the accused. Ex.P2 the panchanama was prepared. He speaks with regard to his presence at the time of conducting search and preparation of panchanama as per Ex.P2.
28. Though this PW.1 has been thoroughly cross- examined by the defence, but, presence of this PW.1 at the time of conducting search and the preparation of the panchanama as per Ex.P2 is not disputed. That means, in his presence, the raid was conducted. He speaks in the cross-examination at Para.6 that, "when the search was conducted, daughter of accused i.e. Pushpalatha was present, she showed the ornaments worn by her worth Rs.71,000/-. This was taken into consideration at the time of calculating the assets of the accused." Even it is stated
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 by this PW.1 that, in the house, at that time, the brother's son of the accused by name Mahendra was present. He was in possession of Rs.4,971/-. His sister's daughters were present by name Shobha and Hema and they were in possession of properties worth of Rs.5,650/- but, according to him, those persons were not in the house. He admits that, one of the sons of the accused is a doctor and it was found that, he was in possession of the free samples. So also he states about item no.158 the portrait of Goddess of Lakshmi in gold, so also a piece of wedlock belonging to the mother of the accused. But, he pleaded ignorance of the same. According to him, before conducting the search, they themselves got search of their person.
29. One thing is clear from the evidence of this PW.1 that, when the raid was conducted daughter of the accused by name Pushpalatha was present and she had worn the gold ornaments worth Rs.71,000/-. It was also taken into consideration by the IO. So also the other
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 amounts of Rs.4971, Rs.5160 was also taken into consideration.
30. PW.2 C.Leelavathi who was SDA in Social Welfare Dept. as SDA in the said office. According to her on 7.7.1999 she was called to the Lokayukta police and she was directed o appear in the Lokayukta office at 6.00 a.m. on the following day. Then she went at 6.00 a.m. on 8.7.1999. At that time, another Munirama a Govt. servant and Lokayukta Inspector Harisingh were present then, all of them went to the relation at Kuppegal of accused and reached there at 11.30 a.m. They showed search warrant and started to search. The fact of her presence at the time of conducting search in Kuppegala house is not disputed by the defence. There, the Inspector Harisingh prepared the search panchanama as per Ex.P3. He admits that, in the said house, they did not find any property or any articles belonging to the accused. This fact is also not disputed by the defence.
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31. PW.3 M.S.Anasuya was the Second Division Assistant at the relevant time and she too accompanied the investigating agency on 8.7.1999 and went along with one Swamy the police inspector at 6.00 a.m. and accordingly they went to the house of relation of accused situated at Kuvempu Nagara II Stage. There a search was conducted by showing the search warrant and pancahanama as per Ex.P4 in his presence. There she noticed the presence of gold ornaments, silver articles etc., and they were valued by calling the goldsmith. The evidence of this PW.3 is not disputed by the defence. That means, in the presence of PW.3 Anasuya Ex.P4 was prepared in the house of relative of the accused in Kuvempu Nagara II Stage.
32. PW.4 G.N.Shivanna, the Typist in the office of the Chief Engineer, Irrigation Department, Mysore also accompanied the Lokayukta Police along with one Gowramma at 5.45 a.m. on 8.7.1999. All of them went to a relative's house at Kuvempunagara in the jeep and they
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 conducted the raid in the house of the son-in-law of the accused. They noticed the presence of gold, silver in the house and he does not remember whether the said ornaments were weighed or not. In his presence, Ex.P5 the Panchanama was prepared. The name of the accused's son-in-law is Chandrashekhar. So from the evidence of PW.4, it is proved that in his presence, there was search in the house of Chandrashekhar the son-in-law of the accused. To that extent, his evidence is to be believed.
33. PW.5 H.S.Devaki was a Typist at the relevant time in the Irrigation Dept., Mysuru and she accompanied on 8.7.1999 at 11.00 a.m. and she was taken in police jeep to the Zilla Panchayath Engineering Sub-Division Office at Kuvempu Nagar i.e. the office of the accused and there certain search was made. Panchanama was prepared as per Ex.P6. This fact is not disputed by the defence.
34. PW.6 A.Ramesh, Assistant Executive Engineer also submitted a report as per Ex.P7 by visiting the house of the accused valuing the same at Rs.4,27,000/- being
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 the SR rate which was constructed in the year 1990-91. This fact is also not disputed by the defence. In the cross-examination what are all the items used for construction by the accused is elicited from the mouth of this PW.6. He gave the positive answer to all the questions directed to him.
35. PW.7 Jayadeva Prakash was the Joint Director of Lokayukta and he prepared the assets and liability expenditure statement for the check period so stated above in respect of the accused. So based upon the documents furnished by the IO, he has prepared the said calculation and according to him, from 1978 to 1999, the total house-hold expenses alleged to have been spent by the accused Rs.4,26,983/-. In the cross-examination he states, from 1998-1999 the accused worked at Bagalkote at that time, he was accompanied with his wife and three children. To that effect, the accused has furnished the details of expenses to the extent of 50% and more of his income. Bagalkot is the city area. From 1978 to 1981, his
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 daughter Pushpalatha was not residing at Bagalkot with her father. Further he deposed ignorance about the son of accused was not residing in between 1978-1981 at Bagalkot. He has shown individual per capita, prorata expenses while calculating the expenses. Further, he states that he had no knowledge about the three years from 1978-1981. He has shown the household expenses for the three years period at Rs.22,967/-. But, without ascertaining the income of the accused, how come he has calculated the household expenses is not explained by this witness. According to him, out of the total income of the accused, he must have spent 93% of his expenses towards household expenses. Further, he states, the expenses would have been Rs.800 per head. But, this suggestion is denied by him. He denied the suggestion that he has shown 65% expenses for the aforesaid period. He denied all other suggestions. He further admits that, during 1987 to 1999 the step-mother of his wife was also residing with the accused. He further states that, from 1987-99, accused was not residing permanently. He
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 further states that, he had no information whether the son of accused 1997-99 had come to the house of the accused for the purpose of education. He further admits that, during 1991 and 1995 as the son of the accused was studying in different places and was prosecuting higher education and whatever expenses spent towards higher education is not taken into account by him.
36. According to him, 1978 to 1999 the total house- held expenses of the accused Rs.2,25,000/- But, he denied the suggestion that household expenses during the check period was only Rs.2,25,000/- but, it is wrongly taken at 4,26,983/-. In the further cross-examination he deposed that, the investigation officer has furnished the salary particulars of the accused. He further states that, as the accused has shown his agriculture income as he is coming from agriculture family, he came to know about his agriculture income. That means, this PW.7 was having knowledge that, accused has the agriculture income of his own. He admits that, accused has not furnished any
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 documents to show the education of his brother's son. Though he is cross-examined at length, but, his evidence shows, certain exaggerative account with regard to the income of the accused, as well as the expenses.
37. PW.8 H. Ramachandra being the Chartered Accountant has come before the trial Court to speak with regard to the performing the marriage of the accused's daughter at Kalyana Mantapa belonging to Sri. Shankara Samithi, Mysuru who was working as a Treasurer in the said Samithi. According to his evidence, as per Ex.P11, at the time of performing marriage of the daughter of the accused, they collected Rs.2,725/- towards rent of the Kalyana Mantapa. There is no denial of this fact by the defence. No cross-examination is directed to this PW.8 by the defence.
38. PW.9 Bheemanna Siddegowda Hebbal, was the Assistant Executive Engineer at Bagalakote in the year 2003. According to his evidence, during 1978-81, accused has paid the electricity charges and to that effect, a letter
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 was received and he has replied as per Ex.P12. With regard to the payment of electricity charges by the accused, it is not denied by the defence.
39. PW.10 V. Sudharshan is the retired Senior Auditor of Co-operative Department at the relevant time and according to him, as per the documents so furnished before him in the Lokayukta office, he conducted the audit of the accounts belongs to the accused and he calculated the total grass salary of the accused at Rs.8,83,108/- for the check period commencing from 24.05.1978 to 07.07.1999. Out of the gross salary, there was a deduction of Rs.2,33,844/-. Thus, the total income of the accused after deducting worked out at Rs.6,49,264/-. To that effect, based upon the Acquaintance Register, he prepared the report and submitted to the same to the investigation agency as per Ex.P13. This fact is also not denied by the defence.
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011
40. PW.11 M.N. Vishwanath was the Motor Vehicle Inspector. According to him, during 07.07.1999 till the end of the check period, the vehicles being owned by the accused were used and in all approximately about Rs.16,625/- was spent towards fuel charges. To that effect, he has produced the photocopy of the document as per Ex.P14. This fact is also not denied by the defence. Except suggesting that, he has taken into consideration the mileage per litre at the rate of 65 km per litre.
41. PW.12 Channappa K.B was the Assistant Executive Engineer, Public Works Department, Channagiri at the relevant time, he was working at Davanagere. In the year 2003, he has issued the bills for having collected the water charges from the accused and he had issued the letter as per Ex. P15. This fact is also not denied by the defence.
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011
42. Then, the very vital evidence lead by the prosecution is of PW.13 Santosh Kumar. According to his evidence, on 28.12.1998 the Superintendent of Police and the Inspector of General of Police had submitted the Departmental enquiry report. Open enquiry was conducted. In the said report, it is stated that, for the check period commencing from 24.05.1978 t0 31.10.1998, accused had a total income of Rs.13,54,997/- and during this check period, he was possessing the assets worth Rs.13,84,629/- and total expenditure was Rs.9,18,185/-. Thus, in the said departmental enquiry report, it was found that during the check period accused was found that he amassed Rs.9,47,867/- worth assets which is disproportionate to his income. He speaks this fact in his examination-in-chief.
43. Throughout his examination-in-chief as well as cross-examination, this PW.13 has spoken about income, assets, expenses and illegal property, which is shown in a tabular column as under:
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 Deposition of PW.13 (Santoshkumar) Income RS.13,54,997/-
Assets Rs.13,84,679/-
Expenses Rs. 9,18,185/-
Illegal property Rs. 9,47,867/-
Sl. Items Amount(Rs.)
No.
1 Some silver items are given at the time Not
of marriage and some are prepared. Mentioned
2 Value of Gas Cylinder Rs.2500/- 2,500.00
3 Confiscated amount worth Rs.35,887/- 3,58,887.00
and not Rs.3,58,887/-.
4 Value of sofa and cushion worth 10,000.00
Rs.4800/- but wrongly shown as
Rs.10,000/-
5 Value of Colour T.V worth Rs.22,000/- 25,000.00
and have mentioned Rs.25,000/- is
false
6 Value of woolen Carpet worth Rs.850/- 4,000.00
but I have mentioned Rs.4000/- is
false.
7 Value of Shoes Rs.3000/- 3,000.00
8 Value of 6 pairs of men slippers is 12,000.00
Rs.12,000/-
9 Value of VCP is Rs.7000/- and shown 25,000.00
as Rs.25000/-
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CRL.A No. 1185 of 2011
10 Value of Video games worth Rs.300/- & 2,000.00
shown as Rs.2000/-
11 Item No.29 Video rifle rate is Rs.300/- 3,000.00
but shown as Rs.3000/-
12 Item No.62 Fan rate is Rs.500 & shown 5,000.00
as Rs.5000/-
13 Item No.35 & 36 rate is Rs.5000/- but 8,000.00
shown as Rs.8000/-
14 Item No. 107 (2 spects) worth 1,000.00
Rs.340/- & shown as Rs.1000/-
15 Item No. 189 (Three-piece suit) worth 3,000.00
Rs.1500/- but shown as Rs.3000/-
16 At the time of marriage of wife & Not
daughter some silver items were mentioned
presented as a gift.
17 Gold items were presented in a Not
marriage of wife by her mother. mentioned
18 Gold items worn by daughter which Not
were gifted to her at the time of her mentioned
marriage by her father -in-law.
19 Tulasikatte, water bank & pyarapit grill 14,000.00
expenses are added to house
construction but they are again shown repeatedly-Rs.14,000/-
20 Telephone instrument worth 15,000.00 Rs.15,000/- is given from telephone department.21 Item No.412 to 420 belongs to Not
accused's brother's son (Mahendra) mentioned
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NC: 2024:KHC:42615
CRL.A No. 1185 of 2011
22 Item No. 194 to 202 sarees. Not Not
purchased but they were gifted. mentioned
23 Item No.207 lungi gifted by father-in- Not
law to accused. mentioned
24 Item No. 217-silk saree has given from 2,000.00
accused father's house but Rs.2000/- is charged.
25 Item No.232 value of Dressing table is 2,000.00 Rs.1000 but shown as Rs.2000/-
26 Item No. 237 value of stabilizer is 1,000.00 Rs.350/- but shown as Rs.1000/-
27 Item No. 238 & 244- Expenditure of 7,000.00 Dining table set is Rs.2000/- but taken as Rs.7000/-
28 Value of Item No. 329 is Rs.1500/- but 3,500.00 shown as Rs.3500/-
29 Value of Item No. 330/- (weaving 2,500.00 machine) is Rs.500/- but shown as Rs.2500/-
30 Value of Item No.367 (Gas stove) 5,000.00 worth Rs.1200/- but shown as Rs.5000/-
31 Value of Vacuum cleaner is Rs.350/- 2,000.00 but shown as Rs.2000/-
32 Rice is brought from their farm but Not
shown as purchased. mentioned
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NC: 2024:KHC:42615
CRL.A No. 1185 of 2011
33 Value of 2 single beds is Rs.1000/- but 11,000.00
shown as Rs.11000/-
34 Value of Item No. 329 saree is 3,500.00
Rs.1500/- but shown as Rs.3500/-
35 Value of Item No. 400 is Rs.3000/- 3,000.00
shown wrongly.
36 Value of Washing machine is Rs.14000 18,000.00
but shown as Rs.18000/-
37 Item No. 93 Kiruejje book brought 12.00
from library but wrongly shown the
value as Rs.12.
38 Out of 7 watches only 3 belongs to Not
accused's house. mentioned
39 Value of Cylinder is Rs.500/-, 1,730.00
additional Cylinder rate is Rs.450/-, stove and accessories rate of Rs.780/-. (500+450+780) 40 As per mahazar value of stove is 6,500.00 Rs.4000/- and Value of cylinder is Rs.2500/-.(4000+2500) 41 Value of Item No.458, Baby sweater is 1,500.00 Rs.300/- but wrongly shown as Rs.1500/-.
42 Value of Water pump is Rs.1000/- but 2,000.00 wrongly shown as Rs.2000/-.
43 In APR it is proclaimed that, 200 gm Not gold was received by the accused at mentioned the time of marriage from his wife's house.
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 44 Schedule 1 to 10- stated the gold Not ornaments belong to whom. mentioned 45 Amount kept in Nimishamba co- Not operative bank belongs to his wife and mentioned children's.
46 In Muda elder son is having a house at 1,80,000.00 a cost of Rs.1,80,000/-
Total Amount 7,43,629.00
44. PW.14 in his examination-in-chief states the value of assets, expenses, income and excess/illegal property, which is shown in a tabular column as under:
Assets Rs.13,87,093.42/-
Expenses Rs. 12,30,185/-
Assets + Expenses Rs.26,17,278/-
Income Rs. 9,49,718/-
Illegal property (excess) Rs. 16,67,560/-
Extent of excess of assets and expenditure in % = 175.58% Schedule 1 to 10- Ex.P82.
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011
45. The following tabular column shows the items considered by the IO at the time of investigation. Sl.No. Items considered by IO Amount (Rs.) 1 Accused son was earning salary of 20,872.50 Rs.20,872.50/- from Prerana Motors, Mysore which is accepted as income in schedule. 2 Accused requested to consider Rs.16,769/- as 6000.00 his income which is deposited in RD account, but after receiving the information only the principal amount of Rs.6000/- is considered. 3 Accused requested that, as his son shashidhar 2,09,297.00 was working in different hospitals as a doctor, so earning Rs1,10,084/- as a salary and as a house surgeon he has earned Rs.1,35,005/- as his income but IO after varifying considered Rs.3500/- which was earned as a house surgeon as his income and considered as he was working as a duty doctor in Kamakshi Hospital and took his income was Rs.6000/- only.
As he was working in NIMHANS, his income was taken as Rs.61,969/-.
He was working in Nazarbad medical service, Mysore and took his income as Rs.4,430/-. After that working in kamakshipalya, took his income as Rs.28,750/-.
Accused informed that as he was received Rs.1,10,084/- as his income but based on information Rs.1,04,648/- is taken as his
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 income.
(3500+6000+61,969+4430+28,750+1,04,648) 4 Accused requested to consider home appliances Not as his income which are given as a gift at the mentioned time of marriage, functions, etc, but due to lack of proper documents, the items which were presented at the time of calculation are considered.
5 Accused requested to consider gold worth 1,12,415.00 Rs.31,655/- which is received as a gift at the time of marriage, but there is no proper document, but at the time of mahazar gold worth Rs.1,12,415/- is found which was considered by the IO.
6 Accused mentioned silver items in schedule, 5,502.00 but at the time of search the silver worth Rs.5502/- found which was considered as his income.
7 Accused daughter's marriage expenses is 30,500.00 Rs.30,500/-
Total Amount 3,84,586.50
46. The following tabular column shows the items not considered by the IO at the time of investigation and he deposed in his evidence as under:
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 Sl. Items not considered by IO Amount(Rs.) No 1 The amount of Rs.30,003.65/- received by the 30,003.65 Accused from Rastriya savings in post office is not considered due to lack of documents.
2 The accused mentioned Rs.1,35,005/- in his 1,35,005.00 schedule as a earning of his son as a private doctor, but due to lack of documents which is not considered.
3 Accused requested to consider Rs.1,00,000/- 1,00,000.00 as his income which was taken from his brother-in-law (Yelakkigowda) as a loan, but due to lack of documents , it is not considered.
4 Accused requested to consider Rs.2,50,000/- 2,50,000.00 as his income, which is taken from one Ranagaswamy as a loan for his son shashidhara's education, but due to lack of documents , it is not considered.
5 Accused requested to consider Rs.9,500/- as 9,500.00 his income from sale of his ancestral property, but after verifying the sale deed it got to know that property belongs to his brother and they sold property to one Mariswamygowda, so this is not considered as his income.
6 Accused requested to consider income from Not mentioned agriculture, but the documents shows that the lands belongs to others, so it is not considered.
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 7 Accused requested to consider the amount of 8,500.00 Rs.8,500/- which is earned by selling motor cycle No.MEM 5007 cost of Rs.6,500/- one Manohar, but due to lack of documents it is not considered.
8 Accused is having right over the ancestral Not mentioned property is not considered.
9 Rs.1,500/- interest amount which is in the 1,500.00 name of accused, his wife and his son, is not considered.
10 The amount of Rs.7,185/- which is in the 7,185.00 name of Shashidhar in RD account, is not considered.
11 At the time of submitting final report income 6,760.00 of Rs.6,760/- is not considered.
12 Rs.1,739/- PF amount of K.C Anand (Second 1,739.00 Son) working in Prerana Motors, is not considered.
13 At the time of K.C. Anand left his job, 20,643.50 Rs.25,516/- amount is given but only Rs.20,872.50/- is considered and after joining for another job with contractor Venkatappa and earned Rs.16,000/- which is not considered. (4643.50+16,000) 14 The extra DA amount of Rs.30,253/- which is 30,253.00 received from NSC amount is not considered. 15 Accused received Rs.9,750/- from PLD and 9,750.00 Kaveri Gramina Bank, which is not considered. 16 Rs.24,081/- fuel charges for motor cycle of 24,081.00 accused is not considered.
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 17 At the time of granting the muda properties Not mentioned accused's father in law is spent the amount, which is not considered.
Total Amount 6,34,920.15
47. The tabular column shows the items wrongly considered by the IO at the time of investigation. Sl.No. Items wrongly considered by IO Amount(Rs.) 1 As accused was granted muda site 1,92,000.00 No.1260 which costs Rs.3,00,000,/- and sold to one Smt. Meena for Rs.3,00,000/- but I.O considered Rs.1,92,000/- as his assets.
2 Accused first son Shashidhar working as a 1,04,648.00 Doctor and was earning Rs.2,40,223/- but due to lack of information I.O considered only Rs.1,04,648/- as his income.
3 Total Family expenses is Rs.1,95,000/- 4,26,983.00
but I.O. wrongly considered
Rs.4,26,983/-.
4 Accused daughter while studying in 15,000.00
Diploma in JSS University I.O. wrongly shown as Rs.15,000/- as her expenditure. 5 Accused son's education building fund is 3,32,152.00 taken as Rs.50,000/- expenditure but I.O. took it as total Rs.3,32,152/- as extra expenditure amount.
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 6 Shashidhar's education expenditure was 6,54,896.00 Rs.3,00,843/- but wrongly shown as Rs.6,54,896/- .
7 For granting extra muda property accused 1,04,221.00 has paid only Rs.54,306/- but shown it as Rs.1,04,221/- as his expenditure.
8 Accused spent Rs.3,50,000/- to built 4,27,000.00
house in muda property but wrongly
shown as Rs.4,27,000/- as his
expenditure.
9 Through Muda, property is granted in the 1,85,000.00
name of accused's son shashidhar and he paid the amount of Rs.1,85,000/- to grant the property but which is not properly considered and considered that amount spent by accused himself.
10 I.O considered saree expenditure amount 25,100.00 which were gifted by others at the time of festivals worth Rs.16,500/-, Rs.2,700/- and Rs. 5,900/-. (16,500+2700+5900) 11 Double bed and other items were given at 16,000.00 the time of marriage as a gift but I.O considered those as expenditure worth Rs.11,000/- and Rs.5,000/-.
12 In final report family expenditure is 4,26,983.00 shown as Rs.4,26,983/- instead of Rs.1,50,000/-.
13 In final report children expenditure is 6,54,896.00
shown as Rs.3,00,843/- but in
chargesheet Rs.6,54,896/- is shown wrongly.
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 14 In final report gold ornaments 1,17,917.00 expenditure is shown as Rs.88,000/- but in chargesheet it shown as Rs.1,17,917/- 15 In final report agricultural income is taken Not Mentioned as Rs.3,25,000/- but in charge sheet it is not considered.
16 Agricultural expenditure is wrongly shown 12,57,798.00 as Rs.12,57,798/-.
17 In final report Rs.4,59,686/- amount is 4,59,686.00 shown for home appliances, hero honda motor cycle, suzuki, grills, iron gates and gas cylinder and in that Rs.87,841 is deducted instead of Rs.12,000/- as expenditure.
18 At the time of raid Rs.35,480/-amount 70,960.00 was seized, and that amount was added twice in calculating the salary and again at the time of raid of the house.
19 200 gm gold in the name of wife and 63 1,12,415.00 gm gold in the name of daughter.
Extra Rs.6000/- gold found at the time of search, but IO wrongly shown as Rs.1,12,415.
20 Agricultural income was actually 38,27,023.00 Rs.8,70,000/- but wrongly taken as Rs.38,27,023/-.
21 IO wrongly took Rs.3,47,304 as accused's 3,47,304.00 son's education and housing expenditure.
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 22 Home appliances worth Rs.3,70,000 3,71,845.00 which is wrongly shown as Rs.3,71,845 in chargesheet.
Total Amount 1,01,29,827.00
48. PW.14 Lakshmegowda, the police inspector has come before the trial Court and as per the orders of the Superintendent of Police, he was directed to take action in Crime No.11/1999. He identified the order as per Ex.P17. Thereafter, he collected the information with regard to the educational expenses of the children of the accused by name K.C. Ananda, Shashidhara, Pushpalatha etc. who have studied at very schools in Mysore i.e, Marimallappa High School, Marimallappa College, Sharada Vilas Pre-University College, JSS Women Polytechnic College etc.
49. According to his evidence, the son of the accused Shashidar had studied at Devaraj Urs Medical College and he collected the expenditure particulars from the said college. So also he has studied at Adichunchanagiri Medical College, Bengaluru and
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 prosecuted his post-graduation education. He collected document from the Kalyana Mantapa on 04.07.2003 by visiting the Kalyana Mantapa as per Ex.P11. He also visited the primary school at Davanagere where the children of the accused have studied. Thus, during the course of investigation, he has collected so many documents and recorded the statements of the various witnesses.
50. Thus, this PW.14 has spoken so much of evidence in his examination-in-chief with regard to non- consideration of various incomes of the accused. According to him, though the accused had meagre income from his known sources but, the extent of 175.58% he possessed the disproportionate income. The cross- examination directed to this PW.14 is worth reading. In the cross-examination, in unequivocal terms, he admits that, accused is coming from a agricultural family. In all there are four brothers. No documents are collected by him with regard to the effecting partition among four
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 brothers. He has not obtained the RTC extract of the landed properties situated at Keralapura, Kuppegrama, Innamuttahalli, bearing survey nos.214, 20/3, 55/3, 312/2, 221/1, 12/3. He further states that, these properties are measuring 3 acres 36 guntas of land and it is a dry land 1 acres 32 guntas is a irrigated land and 1 acres 29 guntas is a khushki land. But, he states that, he cannot say whether those properties are the family property or not. When he states that, the accused is coming from a agriculture family and no partition has taken place among four brothers of accused but he cannot say that, whether those properties are belonging to the accused or not. A quite different evidence has been spoken to by the PW.14.
51. He deposed ignorance with regard to the irrigation facility from the pickup nala to the said landed properties. According to him, he obtained the RTC extracts. He has sent the same to the Director of Horticulture. Further, he states that, he obtained the
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 documents with regard to the 18 guntas of coconut garden in Survey No.55/3, he obtained the documents from Director of Horticulture. He further states that, in schedule 1 to 10, it is mentioned that 1/4th of the income is to be shown as agriculture income. He admits that income derived from silk is not stated in the report. He admits that, in the said report, it is mentioned that in the landed properties so mentioned in the RTC extract, there is a mentioning of the growing of the crops like coconut, ragi and other small crops. To that effect a report is obtained by him. In the final report at page no.9, it is mentioned that, accused had earned agricultural income at Rs.3,25,000/-. He admits that, accused is a elder son to his parents. He does not know whether he is 'karta' or not.
52. He further admits that, the landed properties of accused are situated at Keralapura, Innamuttahalli, Koppegala. They are the ancestral properties of the family of the accused. Even in the final report, he has mentioned that all these agricultural properties are in joint possession
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 of the family of the accused. There is no document with regard to the partition. He deposed ignorance with regard to the raising of a loan from the Bank for the purpose development of the land. He admits that in their ancestral property according to their will and wish, they used to reside. But, further it is denied about the status of the properties as the joint family properties. He admits that, in APR, the accused has mentioned his agricultural income also. He admits that, even then it is not considered while calculating the income. He denied a suggestion that though Rs.3,00,000/- was reduced in the income of the accused, it is not mentioned in the calculation. He admits that, accused was sanctioned with site no.1216 by the MUDA (Mysuru Urban Development Authority). Then, how this PW.14 has conducted the investigation and submitted the report is not made clear by the PW.14. His report is very much silent about raising of a loan by the accused and his brother from PLD and Kaveri Grameena Bank to the extent of Rs.39,000/-. According to him, the said loan was in the name of his brother therefore, it is not taken
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 into consideration. When joint family is existing and there is no partition as per his own evidence, what prevented PW.14 to take the loan of Rs.39,000/- into account is not properly explained by this PW.14.
53. One thing is clear from the evidence of this PW.14 that, accused is coming from a agricultural family. But, all the income being earned by the accused from agriculture is not taken into consideration by the investigation officer while calculating the actual income of the accused. He admits that, in the primary report, it is mentioned that Rs.1,50,000/- was the household expenses shown in the report. He has not enquired Dr.Shasidhara. Even he has not mentioned about spending of money towards hostel charges. By quoting the wrong calculation, the prosecution wants to prove that, the accused has amassed wealth disproportionate to his income.
54. It is further elicited in the cross-examination that, no documents were furnished by the father-in-law of the accused with regard to the construction of the house
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 etc., He admits that, accused married in the 1969. It is shown by the accused that, he has spent Rs.3,50,000/- towards the construction of the house and he has shown the same in his annual returns submitted to the superior officers i.e., APR. Even he has mentioned that, he has spent Rs.2,00,000/- towards construction of the house from his agricultural income. Even he has shown the savings of Rs.1,50,000/- which was taken from one Yalakkigowda. He admits that, in the name of a son of the accused i.e., Shasidhara, one house under OYHS scheme was granted by MUDA. He denied the suggestion that, his son has earned Rs.1,85,000/- from his own profession. Before purchase of the said house, the permission was obtained. He admits that, at the time of marriage the parents of the bride may give some gifts. He admits that, the sister of the accused have been presented with the sarees worth Rs.5,900/- etc., They valued the other articles according their own valuation. Double cot was valued at Rs.11,000/- In the month of April 1998, the house was constructed by the accused in a site granted by
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 the Mysore Urban Development Authority. He admits that, while filing the charge sheet, he has shown the disproportionate assets worth Rs.4,26,983/-. He denied the suggestion that, wrongly he has shown the said assets. He admits that he has shown Rs.6,54,896/- in the charge sheet. He admits that while filing the charge sheet he has not taken into consideration of the agricultural income of the accused. He has not enquired the father-in- law and mother-in-law of the accused during the course of investigation. He had not obtained the APRs of the accused or the copies of the same to support these allegation about amassing wealth by the accused. He admits, during the year 1969, the gold was valuing Rs.275/- per 10 grams. He admits that, the agricultural officer has issued a report stating that, as per Ex.D2, the accused had earned agricultural income of Rs.38,27,023/-. From the total amount, Rs.3,45,418/- was deducted as per his evidence. The total profit of Rs.34,81,605/-. But, that has not taken into consideration by the IO. He denied the
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 suggestion that, total share of the accused comes to Rs.8,70,000/-.
55. On scrupulous reading of the entire evidence of this PW.14, as stated in the aforesaid paras, so many income earned by accused has not been shown by the IO at the time of filing the charge sheet. His report is very much silent with regard to the actual income earned by the accused during the check period.
56. The above noted items were wrongly considered as per the admission of PW.14. If the same is compared with the items considered and arrived at by IO differs with each other, the calculation made by the IO appears to be not in accordance with existing state of affairs. As it is the case under PC Act that too amassing wealth by the delinquent Government Official, IO has not considered the defence of DGO regarding family income from agriculture and also the salaried income received by the sons of the DGO. IO ought to have considered the said income to reckon the actual income of the DGO from all sources.
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57. The trial Court considered the following assets and has not taken other items which were deposed by PW.14 in his evidence.
Sl Amount (Rs.)
Particulars of Assets
No
1 Value of the site No.6, Dattagalli, Ramakrishnanagar, Kuvempunagar,Mysore, belonging to 1,04,221.00 the wife of the accused.
2 Value of the house built in the
said site. 4,27,000.00
3 Value of the site, house No.1039,
E.W.S. in the name of Dr.K.C. 1,85,000.00
Shashidhar.
4 Value of the Hero Honda Motor
Cycle bearing Reg. No. KA.09- H- 33,317.00
7528.
5 Household articles. 3,78,845.42
6 Value of the golden ornaments. 1,12,415.00
7 Silver articles. 5,502.00
8 Balance amount in account No.272
of Mysore District Women's co-
operative Bank Ltd., in the name of 841.00
Padma, wife of the accused.
9 Balance amount in Savings Bank
Account No.12393, in the name of
the accused in Canara Bank, 2,624.00
Kuvempunagar Branch, Mysore.
10 Balance amount in Savings Bank
Account No.12975, in the name of
K.C. Anand, son of the accused in 515.00
Canara Bank, Kuvempunagar
Branch, Mysore.
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NC: 2024:KHC:42615
CRL.A No. 1185 of 2011
11 Share amount of wife of the
accused in Mysore District 1,250.00
Women's co-operative Bank Ltd.,
share No.L.F.293/1.
12 Share amount held by daughter of
the accused - Pushpalatha, in the 500.00
above said Bank.
13 Balance amount in Savings
account No.1/112 in the name of
the daughter of the accused 883.00
- Pushpalatha, in the above said
Bank.
14 Deposit in the name of the accused
and his son K.C. Anand in 1,00,800.00
Karnataka Contractor Co-
operative Bank Ltd.
15 Total Deposit amount in the name
of K.C. Anand, daughter K.C.
Pushpalatha, wife Padma in 29,900.00
Nimishamba Finance Corporation,
Devaraja Road, Mysore.
16 Deposit made in respect 1,000.00
of landline phone No.566168.
17 Deposit made in respect
of 1,370.00
K.E.B. Meter No. RR. No.
A33415.
18 Deposit made in respect of Gas 950.00
customer No. 600623.
Total 13,87,093.42
58. PW.15 K.N.Sridhar also speaks in similar terms. He also states with regard to non-taking into consideration of the amount towards the value of the house etc., He too admits that, accused is coming from an agricultural family. He deposed that, in FIR it is mentioned that Rs.20 lakhs
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 spent for construction of building but, after verifying it shows that Rs.4,25,000/- was spent for construction. In 1996-97 it is stated that, amount of Rs.78,500/- was earned from agricultural income. Accused's daughter Pushpalata's education expenses Rs.1070/-. Site no.1260 was sold for Rs.3 Lakhs is not considered. Value of gold and silver is Rs.88,000/- is considered. Value of electrical items is Rs.60,000/- is considered. Agricultural income Rs.3,75,000/- is considered.
59. In all criminal cases, it is the bounden duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt. Under Section 20 of the PC Act, the presumption arises which is a rebuttal presumption. The onus would be on the DGO to prove his defence with preponderance of evidence and probabilities.
60. When it is the definite defence of the accused DGO that, he had some other income. To that effect, to ascertain the genuineness of the statement of the DGO, the efforts ought to have been made by the IO to secure
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 the documents by examining the concerned witnesses or by collecting the documents from the concerned persons. They ought to have been arrayed as witnesses also.
61. So when it is definite case of the prosecution of amassing wealth by the DGO, the burden is on the IO to bring all such materials to prove the guilt of the accused beyond all reasonable doubt. But, in this case, the IO simply has searched the house of the DGO and his relations on the same day with the help of his other colleagues. It creates a doubt in the case of the prosecution. When the doubt is created as required under Section 20 of PC Act, the defence of the DGO probabalizes the case of the defence than the case of the prosecution.
62. So far as evidence of DW.1 Y.Mahesh is concerned, he is Y. Mahesha, an Advocate and he is the cousin of the accused. He speaks with regard to lending of loan of Rs.2.5 lakhs to the accused and he is a witness to the agreement of sale. According to him, his father had given a loan of Rs.1,00,000/- to the accused at the time of
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 purchase of site. Likewise, DW.2 Mariswamy Gowda speaks with regard to owning of landed property by the accused at Keralapura in Sy.No.55/3 38 guntas and in the year 1997, the value of the Khushki land was Rs.1,000/- per gunta. The said property was standing in the name of Beeregowda i.e. brother of the accused. There is no partition amongst the brothers of the accused.
63. DW.3 Mahadevaiah was the Asst.Executive Engineer and he is also brother of the accused. He too speaks that still the family of accused and himself is in joint. At the time of conducting the raid, they were earning Rs.70,000/- from the agricultural land and they used to do the silk business etc., Accused is the eldest son of their father. DW.4 is the another brother of the accused and he too speaks with regard to the status of the family as a joint family property. DW.5 Rangaswamy is the resident of Kuppelur and owning 31 acres of land. According to him, he is an agriculturing by profession and growing the fruits, sugar cane, paddy, coconut. He speaks that when
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 Shashidhar got the medical seat, he had lent loan of Rs.2.5 lakhs for the purpose of his education. This fact is not denied by the prosecution. DW.6 was the Civil Contractor under whom Anand, Son of the accused was working and he worked for 3 to 4 months and he was paid Rs.4,000/- p.m as salary. This fact is not denied effectively by the prosecution.
64. DW.7 Mahendra Kempegowda is a Mechanical Diploma Holder and he is the nephew of accused and he has studied by residing in the house of the accused. DW.8 Nazeer Ahmed, the Retd. Revenue Inspector has issued report Ex.D2, the report showing the total income from agricultural sources to the extent of Rs.38,27,023/- and this fact has been spoken to by PW.14 in his evidence.
65. IO has not properly considered the agricultural income being earned by the accused from his joint family agricultural lands.
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66. DW.9 Lakshman Rao was the Asst. Executive Engineer at the relevant time and according to him, with regard to the using of the vehicle, he has issued Ex.D10. Accused has worked as an Junior Engineer from 1993-95 and he has produced the document to show that during that period, accused has earned the travelling allowance to the extent of Rs.7,200/- as shown in Ex.D11.
67. DW.10 C. Ananda, Group Leader at Toyata has come before the trial Court and deposed about taking salary of Rs.1,400/- from Prerana Motors and even he has received the bonus and PF and he has worked under the contractor and he used to take care of Lorry and buldozer. DW.11, Meenu S.Lalwani a teacher who has purchased a site from the accused measuring 60 x 40 ft. situated at Paduvana Road, Kuvempu Nagara, Mysore and based upon the agreement of sale, he purchased the same for Rs.3,00,000/- during the year 1992 and paid Rs.50,000/- at the time agreement and balance he was paid at the time of registration of the sale deed. He states that, he
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 signed the Ex.D7 in the presence of witnesses. The purchase of the site from the accused for Rs.3,00,000/- by DW.11 is not denied by the prosecution.
68. DW.12 Pushpalatha is none else than the daughter of the accused and she states that at the time of performing the marriage, her father had gifted her 60 to 70 grams of gold in the shape of gold ornaments required to a bride and she has kept the same in the house of her parents. This fact is also not denied by the prosecution.
69. DW.13 Dr.K.C.Shashidhar is the son of the accused and speaks with regard to spending of money towards his educational expenses etc., His evidence is corroborated with that of evidence of PW.14 with regard to income earned by this DW.13 from his medical profession.
70. DW.14 Padma Chikkaveeraiah is the wife of the accused and she speaks with regard to income of the accused as well as purchase of site measuring 60 x 40 ft. by using the gift amount of Rs.50,000/- given by her
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 father. Balance amount was also borne by the accused. There was abutting site measuring 10' x 60' ft. and was granted for Rs.14,000/-. Thus, by utilizing the amount of Rs.50,000/- gifted by her father, this site was purchased.
71. DW.15 is none else than the accused and speaks on par with the defence so set up by him throughout the trial. He speaks that, he never amassed wealth as alleged by the prosecution and he has given so many documents to the investigating agency to show his actual income. The accused has adduced the evidence of 15 witness including himself.
72. It is found in the evidence of PWs.13,14 and 15 that, there was so many discrepancies, improvements and lacuna but, the trial Court has come to the conclusion that, the accused has amassed the wealth disproportionate to his source of his income.
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73. In a case of present nature, the calculation so made by the prosecution plays an important role. As per the calculation so noted above, though the prosecution alleges about disproportionate income earned by the accused, but, the factual matrix so brought on record by the prosecution suffers from material particulars. As noted in the foregoing paras, there are so many items left out by the investigating agency while calculating the income and assets of the accused and also the expenditure. So the testimony of all these witnesses if looked into, though they state so many facts in their examination-in-chief of earning disproportionate income by the accused, but in the cross-examination they have given a clear go bye. Testimony of each witness if looked into and scrutinised, there is no linking evidence to establish that, accused has really amassed the wealth disproportionate to his income. Therefore, on overall evaluation of the evidence recorded by the prosecution, it can be stated that, the prosecution case suffers from material particulars. If the provisions of Indian Evidence Act are applied to the present facts of the
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 case, there is no absolute rule as such under the Indian Evidence Act that, the entire evidence of the IO being the sole basis for conviction unless it is corroborated. This case is purely based upon the documentary evidence, but, while calculating the income of the accused, the IO has left so much of the items stated by the witnesses. If all the income so stated by them in the cross examination which was not considered at the time of calculating, if taken into consideration, then it cannot be stated that, really the accused has amassed the wealth disproportionate to his income. Only based upon the evidence of the IOs, we cannot come to the conclusion that, really the accused has committed the offence in the manner alleged by the prosecution. The evidence of the witnesses so examined by the prosecution suffers from material particulars and their evidence shows that, the agricultural income is not taken into consideration. Accused has got the share in the agricultural income. Even his own brothers had come before the trial Court and deposed about the same. The learned trial Court ought to have considered all these
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 aspects and ought to have come to conclusion that, the case of the prosecution suffers from material particulars. In my considered view, only based upon the surmises and conjectures, we cannot come to a conclusion that, he has really earned that much of income disproportionate to the income as alleged by the prosecution.
74. The learned trial Court while considering the evidence placed on record, has not considered about the domestic and other expenses. From the evidence of the accused and the defence witnesses, it probabalizes that accused has proved his defence. DWs 1 to 15 have stated about the income earned by the accused during check period not only from his employment but, also from his agricultural sources. Thus, looked from any angle, the prosecution case suffers from material particulars. Most of the items have been left out while doing calculation of the income of the accused and even so many items were not considered while reckoning the income of the accused. Thus, it can be stated that, only based upon the
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 incomplete calculation of the income of the accused and based upon the self-serving evidence of PWs.13, 14, 15, it cannot be stated that the accused has really amassed wealth disproportionate to his income.
75. In view of all these factual features, there arises doubt in the case of the prosecution and that benefit of doubt has to be extended to the accused. Hence, defence version is more probable than the case of the prosecution. But, the learned trial Court by considering the evidence of IO only has passed the impugned judgment. The findings of the trial Court are based only on the evidence of the IO without properly considering the other/agricultural income and means i.e., income of children etc., Therefore, the judgment of conviction and order of sentence passed by trial Court requires interference by this Court. Hence, point for consideration raised supra is answered in favour of the appellant- accused and against the prosecution. Consequentially,
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NC: 2024:KHC:42615 CRL.A No. 1185 of 2011 the accused is entitled for acquittal by giving benefit of doubt. Resultantly, the following order:
ORDER
(i) Appeal is allowed.
(ii) Judgment of Conviction and Order of Sentence dated 03.11.2011 passed in Spl.C.25/2005 by the Prl. Sessions Judge and Special Judge, Mysuru, is hereby set aside. Consequentially, the accused is acquitted of the offences punishable under Section 13(1)(e) read with Section 13(2) of Prevention of Corruption Act, 1988, by giving benefit of doubt.
(iii) Bail bond/s of appellant/accused stands cancelled.
(iv) He is set at liberty.
(v) Fine amount if any paid is to be refunded to the accused digitally on collecting necessary documents.
(vi) Send back the Trial Court records along with a copy of this judgment forthwith.
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(vii) Registry to send the operative portion of this judgment to the trial Court for compliance.
Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE SK List No.: 19 Sl No.: 1