Bangalore District Court
Central Bureau Of Investigation vs Sri.Jagroop Singh Sandhu on 30 November, 2015
IN THE COURT OF THE XLVII ADDITIONAL CITY CIVIL
& SESSIONS JUDGE & SPECIAL JUDGE FOR C.B.I.
CASES (CCH-48), BENGALURU.
Dated this the 30th day of November 2015
Present: SRI.ASWATHA NARAYANA, B.Sc., LL.M.,
XLVII Additional City Civil & Sessions Judge
& Special Judge for CBI Cases, Bengaluru.
SPECIAL CRIMINAL CASE No.112/2012
COMPLAINANT: Central Bureau of Investigation,
Represented by the Inspector of Police,
Anti Corruption Branch, Ganganagara,
Bengaluru.
(By Smt.K.S.Hema, Public Prosecutor.)
-Vs-
ACCUSED-1: Sri.Jagroop Singh Sandhu,
S/o. Sri.Mohinder Singh Sandhu,
Aged 50 years.
Superintending Engineer,
Bengaluru Central Circle,
Central Public Works Department,
Kendriya Sadan, Koramangala,
Bengaluru.
Present Address:
CPWD Quarters, Type-V,
Quarters No.522/B-40,
HSR Layout,
Bengaluru.
(By Sri.R.Nagendra Naik, Advocate.)
ACCUSED-2: Smt.Tarnjeet Kaur,
W/o.Sri.Jagroop Singh Sandhu,
Aged 39 years.
2 [Spl.C.C.112/2012-J]
CPWD Quarters, Type-V,
Quarters No.522/B-40,
HSR Layout,
Bengaluru.
(By Sri.R.Nagendra Naik, Advocate.)
1. Nature of Offence: Offence punishable under
Sections 13(2) r/w. 13(1)(e)
of the Prevention of
Corruption Act, 1988 and
Section 109 of the Indian
Penal Code, 1860.
2. Date of Commission of In between 01.08.2005 and
Offence: 30.08.2010.
3. Date of First Information
Report: 15.12.2010.
4. Date of Arrest of the Accused: Not Arrested.
5. Date of Commencement of
Evidence: 15.02.2013.
6. Date of Closure of Evidence: 10.02.2014.
7. Date of Pronouncement of
Judgment: 30.11.2015.
8. Result of the Case : Accused-1 is Convicted.
Accused-2 is Acquitted.
(ASWATHA NARAYANA)
XLVII Additional City Civil & Sessions Judge
& Special Judge for CBI Cases,
Bengaluru.
-o0o-
3 [Spl.C.C.112/2012-J]
JUDGMENT
The Complainant has filed this Charge Sheet alleging that, during the Check Period i.e., from 01.08.2005 to 30.08.2010 (for short, ' the Check Period'), while the Accused-1 was functioning as Public Servant in the capacity of Superintending Engineer, Central Public Works Department, Central Circle, Kendriya Sadana, Koramangala, Bengaluru, possessed Disproportionate Assets worth Rs.28,97,004/- i.e., to an extent of 59% to his known and lawful sources of income without satisfactory account, in his name and in the name of his wife-the Accused-2 though she had no source of Income, and that thereby, the Accused-1 has committed an offence of Criminal Misconduct punishable under Sections 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act, 1988 (for short, 'the Act'). It is further alleged that the Accused-2 abetted the offence of Criminal Misconduct committed by the Accused-1 and that thereby, she has committed an offence punishable under Section 109 of the Indian Penal Code, 1860 (for short, 'the IPC') r/w. Section 13(2) r/w. Section 13(1)(e) of the Act.
2. After appearance of the Accused-1 and the Accused-2 before this Court, Copies of Charge Sheet and other documents relied upon by the Complainant were furnished to them. After hearing both the sides before framing Charge, on 16.12.2010, the then Presiding Officer of this Court framed Charge against the Accused-1 for an 4 [Spl.C.C.112/2012-J] offence punishable under Sections 13(2) r/w. 13(1)(e) of the Act and against the Accused-2 for an offence punishable under Section 109 of the IPC r/w. Sections 13(2) r/w. 13(1)(e) of the Act. When the same was read over and explained to the Accused-1 and the Accused-2, they pleaded not guilty to the same and claimed to be tried.
3. During trial, the Complainant got examined 43 Witnesses as P.W.1 to P.W.43 and got marked 78 Documents as Ex.P.1 to Ex.P.78 on his behalf. With that evidence, the Complainant closed his side. On examination of the Accused-1 and the Accused-2 under Section 313 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C.'), the Accused-1 and the Accused-2 did not admit the incriminating evidence appearing against them.
4. After hearing both the sides, this Court found that it is not a case for Acquittal under Section 232 of the Cr.P.C., and hence, the case was posted for Defence Evidence. During Defence Evidence, the Accused-1 and the Accused-2 got examined 2 Witnesses as D.W.1 and D.W.2 and they got marked 41 Documents as Ex.D.1 to Ex.D.41 on their behalf. They also filed their Written Statement under Section 243(1) of the Cr.P.C. With that evidence, they closed their side.
5. Heard arguments of both the sides. Perused the records including Written Arguments filed on behalf of both the parties.
5 [Spl.C.C.112/2012-J]
6. The Points that arise for determination in this case are as follows:-
1. Whether there is valid Sanction as required under Section 19 of the Act for prosecuting the Accused-1 for an offence punishable under Section 13(2) r/w. Section 13(1)(e) of the Act?
2. Whether the Accused-1, while working as a Public Servant during the Check Period from 01.08.2005 to 30.08.2010, possessed Disproportionate Assets worth Rs.28,97,004/- to his known sources of income in his name and in the name of the Accused-2 without satisfactory account as alleged?
3. Whether the Accused-1 is guilty of an offence of Criminal Misconduct punishable under Section 13(2) r/w. Section 13(1)(e) of the Act as alleged?
4. Whether the Accused-2 has abetted the offence of Criminal Misconduct committed by the Accused-1 as alleged?
5. Whether the Accused-2 is guilty of an offence punishable under Section 109 of the IPC r/w. Section 13(2) r/w. Section 13(1)(e) of the Act as alleged?
6. What Order?
7. Findings of this Court on the above Points are as follows:-
Point-1: Affirmative;
Point-2: Affirmative, holding that the Accused-1 possessed Disproportionate Assets worth Rs.13,02,454;
6 [Spl.C.C.112/2012-J] Point-3: Affirmative;
Point-4: Negative;
Point-5: Negative;
Point-6: See final portion of this Judgment.
REASONS UNDISPUTED FACTS
8. The Accused-1 was working as Executive Engineer in the Office of Central Public Works Department (for short, 'CPWD') at Vadodara from 01.08.2005 to 31.08.2006 and at Bengaluru as Superintending Engineer from 01.09.2006 to 30.08.2010. The period from 01.08.2005 to 30.08.2010 is the Check Period pertaining to this case. As the Accused-1 is an employee of the Central Government, he is a Public Servant within the meaning of the Section 2(c) of the Act. The Accused-2 is the wife of the Accused-1.
9. A case was registered against the Accused-1 in Cr.No.RC.12(A)/2010 by the Complainant for an offence punishable under Section 7 of the Act. In relation to that case, P.W.41-Sri.T.V.Joy, the then Inspector of Police, CBI, ACB, Bengaluru, conducted Search of the House of the Accused-1 on 13.08.2010, seized documents as per Ex.P.2 and Ex.P.3 and also Cash of Rs.7,00,000/- from the House of the Accused-1. He prepared Search List as per Ex.P.1, Inventory of Seizure of Cash as per Ex.P.1(a) and 7 [Spl.C.C.112/2012-J] Inventory of Valuable Articles as per Ex.P.1(b). P.W.1- Sri.V.Chakrapani, the then Manager of Syndicate Bank, Malleshwaram Branch, Bengaluru and P.W.2- Sri.Dhanasekaran, the then Clerk of Canara Bank, Circle Office, Metro, Bengaluru, are the witnesses for the said Seizure and Inventory. A Charge Sheet was filed against the Accused-1 in respect of that case. After trial, the said case ended in an acquittal of the Accused-1.
10. As per the source information collected during the Search in Cr.No.RC.12(A)/2010, on 15.12.2010, Sri.R.Hithendra, the then DIG & Head of the Branch of CBI, ACB, Bengaluru, registered a case against the Accused-1 in Cr.No.RC.19(A)/2010 for an offence punishable under Sections 13(2) r/w.13(1)(e) of the Act and submitted FIR to the Court as per Ex.P.75. He entrusted the Investigation of that case to P.W.43-Sri.T.P.Ananda Krishnan, the then Inspector of Police, CBI, ACB, Bengaluru, by an Order passed as per Ex.P.76.
11. On 16.12.2010, P.W.43 conducted Search of the House of the Accused-1 in pursuance of the Search Warrant issued by this Court and during that Search, he seized 9 Items i.e., Ex.P.5 to Ex.P.13 as mentioned in the Search List & Inventory-Ex.P.4 from that House. P.W.2 and P.W.6-Sri.Prahlad, the then Manager of Syndicate Bank, IAF, Hebbal Branch, Bengaluru, are the witnesses to that Search and Inventory.
8 [Spl.C.C.112/2012-J]
12. P.W.43 conducted Investigation of the case and collected/seized Documents from various persons as under:-
From whom Description of Exhibit Date Seized Documents No. or Collected 20.01.2011 Service Book & Ex.P.30 P.W.15 Personal File of the & (Sri.Balachandran) Accused-1. Ex.P.39 21.01.2011 LIC Policy Ex.P.53 P.W.28 Statement. (Sri.Ramakanth Shenoy) 25.01.2011 Status Reports of Ex.P.61 C.W.31 LIC Policies. (Sri.S.K.Suman) 25.01.2011 Fee Paid Details Ex.P.64 P.W.36 relating to (Sri.Subhash Navarathan School, K.Sha) Vadodhara.
28.01.2011 Fee Paid Details Ex.P.43 P.W.18
relating to Delhi (Sri.N.K.Sinha)
Public School,
Vadodhara.
28.01.2011 Statement of Ex.P.26 P.W.11
Account pertaining (Sri.Chethan)
to SB Account of the
Accused-2 at
Standard Chartered
Bank.
29.01.2011 ICICI Bonds Details Ex.P.21 C.W.11
held in the name of (Sri.Ganesh)
the Accused-1.
31.01.2011 Fee Receipt relating Ex.P.71 P.W.40
to Brilliant Tutorials. (Sri.G.Moses)
01.02.2011 Statement of Ex.P.22 P.W.9
Account pertaining (Smt.Sumitha)
to SB A/c. of the
Accused-1 at ICICI
Bank, Bengaluru.
01.02.2011 Lease Agreement & Ex.P.29 P.W.14
Statement of Rent (Sri.P.R.Rajesh)
relating to IGL
Company, New Delhi.
9 [Spl.C.C.112/2012-J]
01.02.2011 Extract of Register Ex.P.42 P.W.17
of Payments made (Sri.J.V.Jorapur)
by Residents
Welfare Association.
02.02.2011 Reliance Mutual Ex.P.20 C.W.6
Fund Documents. (Miss.Uma)
09.02.2011 Aviva Life Insurance Ex.P.58 P.W.38
Documents. (Sri.Sanjeet
Singh Wadhwa)
10.02.2011 SBI Life Insurance Ex.P.44 P.W.19
Documents. (Sri.A.Pramasivan)
14.02.2011 Suspension Order. Ex.P.33 P.W.15
(Sri.Balachandran)
15.02.2011 Details of Payment Ex.P.38 C.W.23
of Telephone (Smt.Monica)
Charges.
15.02.2011 Statement of Movable Ex.P.37 P.W.15
and immovable (Sri.Balachandran)
Properties of the
Accused.
17.02.2011 ICICI Prudential Life Ex.P.47 P.W.22
Insurance (Sri.Roshan)
Documents.
21.02.2011 IDBI Bank Ex.P.15 P.W.4
Documents. (Sri.Akshayakumar
Chingadi)
21.02.2011 Oriental Insurance Ex.P.55 P.W.13
Company (Smt.Sandhya)
Documents.
22.02.2011 Posting History of Ex.P.32 P.W.15
the Accused-1. (Sri.Balachandran) 22.02.2011 Sundaram Mutual Ex.P.16 P.W.5 Fund Documents. (Sri.T.S.Sritharan) 22.02.2011 Royal Bank of Ex.P.45 P.W.20 Scottland (Sri.Rithish Documents. Kumar Mavila) 25.02.2011 LIC Documents. Ex.P.62 C.W.45 (Sri.Rajesh Kumar Verma) 02.03.2011 File relating to Ex.P.34 P.W.15 Salary Particulars, (Sri.Balachandran) GPF Withdrawals, etc. of the Accused-
1.
10 [Spl.C.C.112/2012-J]
04.03.2011 HDFC Mutual Fund Ex.P.17 P.W.7
Documents. (Smt.Samantha
Ferris)
05.04.2011 Details of Dues & Ex.P.14 P.W.3
Receipts relating to (Sri.S.R.Pandey)
Kendriya Lok
Nirmana Sahakari
Awas Samithi
Limited
05.04.2011 Documents relating Ex.P.24 P.W.10
to Accounts of the (Sri.B.Lal)
Accused-1 at SBI,
New Delhi.
26.05.2011 Salary Particulars & Ex.P.35 P.W.15
Personal File of the (Sri.Balachanran)
Accused-1.
27.05.2011 Franklin Templeton Ex.P.19 P.W.8
Mutual Fund (Smt.Namratha
Documents. Singhvi)
30.05.2011 Fee Details of K.K. Ex.P.70 C.W.22
Educational and (Sri.Athiq Anwar)
Charitable Trust.
31.05.2011 Power Grid Ex.P.46 P.W.21
Corporation (Sri.Narendra
Documents. Kumar)
31.05.2011 Documents relating Ex.P.56 P.W.31
to payment of Tax (Sri.B.Muniyappa)
to RTO, Bengaluru.
01.06.2011 Post Office Ex.P.41 P.W.16
Documents (Sri.Chandar
regarding NSC. Gopal Govindalal
Gandhi)
01.06.2011 Oriental Insurance Ex.P.51 P.W.26
Company Sri.D.T.Malodkar.
Documents.
07.06.2011 Details of Payment Ex.P.40 C.W.18
made in respect of (Sri.Ramvilas)
Sale of Flat No.B-
403.
08.06.2011 Corporation Bank Ex.P.27 P.W.12
Documents relating (Sri.K.Ravi)
to SB A/c. of the
Accused-1.
09.06.2011 Certified Copy of Ex.P.77 C.W.17
Sale Deed dated (Sri.Manoj
02.02.2006. Kumar)
11 [Spl.C.C.112/2012-J]
10.06.2011 Bajaj Life Insurance Ex.P.52 P.W.27
Documents. (Sri.Suresh Babu)
13.06.2011 SBI Documents Ex.P.25 P.W.10
relating to SB A/c. & (Sri.B.Lal)
PPF A/cs. of the
Accused-1 and
Accused-2 & his
family members.
14.06.2011 Vehicle Insurance Ex.P.57 P.W.32
Documents of (Smt.M.Sreelekha)
United India
Insurance Company.
29.06.2011 Post Office Ex.P.48 P.W.23
Documents relating (Sri.V.K.Mohan)
to NSC.
30.06.2011 Income Tax Returns. Ex.P.50 P.W.25
(Sri.Pradeep
Aspatwar)
05.07.2011 Certified Copy of Ex.P.78 C.W.16
Sale Deed dated (Sri.Yogesh
15.6.2009. Sharma)
14.07.2011 ICICI Bank Ex.P.49 P.W.24
Documents (Sri.Sasikumar)
regarding Fixed
Deposit.
22.07.2011 HDFC Mutual Fund Ex.P.18 P.W.7
Documents. (Smt.Samantha
Ferris)
26.07.2011 ICICI Bank Deposit Ex.P.23 P.W.9
Documents. (Smt.Sumitha)
04.08.2011 SBI Mutual Fund Ex.P.28 P.W.28
Documents. (Sri.Ramakanth
Shenoy)
04.08.2011 Fee Paid Documents Ex.P.54 P.W.29
relating to National (Smt.Chitra Rao)
Public School.
08.08.2011 Receipts for having Ex.P.73 P.W.42
paid Maintenance, (Sri.Dhirender
Electricity and Kumar)
Welfare Fund
Charges relating to
Flat No.B-403.
.
12 [Spl.C.C.112/2012-J]
12.08.2011 LIC Policy Ex.P.59 P.W.28
Documents. & (Sri.Ramakanth
Ex.P.60 Shenoy)
26.08.2011 Details regarding Ex.P.31 P.W.15
Returns relating to & Sri.Balachandran.
Flat No.B-403 and Ex.P.36
Form No.16.
07.09.2011 Details of SB A/c. of C.W.54
the Accused-2 & Ex.P.63 (Senior Manager,
Smt.Sheela Rani at Punjab & Sind
Punjab & Sind Bank. Bank)
22.09.2011 Transactions P.W.38
Enquiry relating to Ex.P.66 (Sri.Sanjeet
Account No. Singh Wadhwa)
028201502089.
22.09.2011 Letter & Documents. Ex.P.69 C.W.56
(Sri.Mohinder
Singh)
26.09.2011 Statement of
Account relating to Ex.P.65 P.W.27
Sri.Rajendar Singh (Sri.Suresh
Wadhwa. Babu)
29.03.2012 Sanction Order. Ex.P.68 P.W.39
(Sri.K.Ganesh)
13. As per Order dated 21.09.2011-Ex.P.72 passed by the then DIG, P.W.41 also conducted part of investigation by examining P.W.37-Sri.Rajinder Singh Wadhwa and P.W.38-Sri.Sandeep Singh Wadhwa and recording their Statements. P.W.43 recorded the Statements of other Witnesses and after completing Investigation, he filed Charge Sheet.
14. All the above facts are not under dispute.
13 [Spl.C.C.112/2012-J] POINT-1
15. The learned Advocate appearing on behalf of the Accused-1 and 2 has contended that; Ex.P.68-Sanction Order is not valid; it is just a Verbatim reproduction of the Draft Sanction Order sent by the Complainant; all the relevant materials were not placed before the Sanctioning Authority before issuing Sanction Order; Sanctioning Authority has not applied its mind; as there is no valid Sanction as required under Section 19 of the Act to prosecute the Accused-1, prosecution of the Accused-1 and 2 is illegal and that hence, they are entitled for acquittal on this ground alone. In support of his Arguments, the learned Advocate appearing on behalf of the Accused-1 and 2 has relied upon the following citations:-
1. State of Karnataka -Vs-
C.Nagarajaswamy & M.K.Vijaya Lakshmi [(2005) 8 Supreme Court Cases 370];
2. State of Goa -Vs- Babu Thomas [2005 CRI.L.J.4379];
3. State of Karnataka -Vs-
Ameerjan [(2007) 11 Supreme Court Cases 273];
4. Babappa -Vs- State by Lokayukta Police, Gulbarga [2009 SCC Online Kar. 187];
14 [Spl.C.C.112/2012-J]
5. Central Bureau of Investigation
-Vs- Ashok Kumar Aggarwal [(2014) 14 Supreme Court Cases 295].
6. V.Venkatasubba Rao -Vs- State By Inspector of Police [2007 CRI.L.J.754(SC)].
16. Sum and substance of the principles laid down in the decisions of the above citations are as follows:-
Sanction under Section 19 of the Act is Must and any Sanction, which is given without application of mind and without considering the documents and material, is no Sanction in the eye of Law and amounts to failure of Justice;
Sanction Order must be demonstrative of the fact that there had been proper application of mind on the part of the Sanctioning Authority. Materials collected during investigation, which would prima facie establish existence of evidence in regard to commission of offence by the Public Servant concerned, should be made available before the Sanctioning Authority before the Order of Sanction is passed;
Grant of proper sanction by the Competent Authority is sine qua non for taking cognizance of the offence. Question as to whether proper sanction accorded or not should be dealt with at the stage of taking cognizance. But, even if a cognizance of the offence is taken erroneously and the same comes to the Court's notice at a later stage, a finding to that effect is permissible;
Grant of Sanction is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty;
15 [Spl.C.C.112/2012-J] For valid Sanction, the Prosecution has to establish and satisfy the Court that entire relevant facts had been placed before the Sanctioning Authority and that Authority had applied its mind and granted Sanction in accordance with Law;
Consideration of entire material including Case Diary, documents collected during the course of investigation, Statements recorded under Section 161 and Section 164 of the Cr.P.C., is necessary;
In case of Complaint of demand of bribe against 4 persons, if vital documents showing involvement of person actually making demand are not produced before the Sanctioning Authority, Sanction is vitiated in law.
17. On the other hand, the learned Public Prosecutor has contended that the evidence of P.W.39-Sri.K.Ganesh and contents of Ex.P.67 and Ex.P.68 show that there is a valid Sanction in terms of Section 19 of the Act to prosecute the Accused-1, the Competent Authority has issued Sanction in accordance with Section 19 of the Act by applying its mind on all the materials placed before it and that the said Sanction is a valid Sanction. In support of her Arguments, the learned Public Prosecutor has relied upon the following citations:-
1. C.S.Krishnamurthy -Vs- State of Karnataka [Judgment of Supreme Court of India, dated 29.03.2005 passed in Appeal (CRL.) 462/2005];
2. State through Inspector of Police, Andhra Pradesh -Vs-
16 [Spl.C.C.112/2012-J] K.Narasimhachary [Judgment of Supreme Court of India passed on 07.10.2005 in Appeal (CRL.) 82/2004].
18. Sum and substance of the principles laid down in the decisions of the above citations are as follows:-
Ratio is Sanction Order should speak for itself and in case, the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the Sanctioning Authority for due application of mind. In case, the Sanction speaks for itself, then the satisfaction of the Sanctioning Authority is apparent by reading the Order;
Sanction Order issued by the State in discharge of its statutory functions in terms of Section 19 of the Act and authenticated in the manner specified in the Rules of Executive Business, is a Public Document within the meaning of Section 74 of the Indians Evidence Act, 1872;
A public document can be proved in terms of Sections 76 to 78 of the Indian Evidence Act, 1872. Thus, an Order of Valid Sanction can be proved by the Sanctioning Authority in 2 ways: either (1) by producing the original Sanction Order, which itself contains the facts constituting the offence and the grounds of satisfaction; or (2) by adducing evidence aliunde to show that the facts were placed before the Sanctioning Authority and the satisfaction arrived at by it.
17 [Spl.C.C.112/2012-J]
19. Keeping in view the above principles of law and the submissions made by both the parties, this case is dealt with.
20. As per Section 19 of the Act, previous Sanction of the Competent Authority is mandatory for taking cognizance against a Public Servant by the Court for an offence punishable under Section 13 of the Act. As per Section 19(a) of the Act, in case of an employee of the Central Government, who is not removable from his Office except with the Sanction of the Central Government, previous Sanction of the Central Government is necessary for prosecuting that employee for an offence punishable under Section 13 of the Act. As observed above, it is not in dispute that the Accused-1 is a Central Government Public Servant working in CPWD. It is not in dispute that the said employment of the Accused-1 comes within the purview of Ministry of Urban Development, Government of India. According to the Complainant, the President of India is the Competent Authority to remove the Accused-1 from service and as such, the President of India is the Competent Authority to accord Sanction to prosecute the Accused-1. P.W.39-Sri.K.Ganesh, who is working as Under Secretary in the Ministry of Urban Development, Government of India, has deposed the said fact. The Accused-1 and 2 have not disputed the said fact. As such, it is clear that the Sanctioning Authority to accord Sanction to prosecute the Accused-1 is the President of India.
18 [Spl.C.C.112/2012-J]
21. As per Article 77(1) of the Constitution of India, all executive actions of the Government of India shall be expressed to be taken in the name of the President. As per Article 77(2), Orders and other Instruments made and executed in the name of the President shall be authenticated in such a manner as may be specified in the Rules to be made by the President and validity of an Order or Instrument, which is so authenticated, shall not be called in question, on the ground that it is not an Order or Instrument made or executed by the President. By virtue of powers conferred under Article 77(2) of the Constitution of India, the President has made Rules known as "The Authentication (Orders and other Instruments) Rules, 2002". As per Rule 2(1) of the said Rules, Orders and their Instruments made and executed in the name of the President shall be authenticated by the signature of the Secretary, Special Secretary, Additional Secretary, Joint Secretary, Deputy Secretary, Under Secretary or Assistant Secretary to the Government of India.
22. P.W.39 has deposed that, he was working in the Vigilance Department of the Ministry of Urban Development, he was dealing with the Vigilance matters concerning CPWD and other Organizations and Offices, the Complaint and all other documents such as Statement of Witnesses, FIR, Income and Expenditure Statement concerning the Accused-1 were received through the CPWD along with the approval of their Director General, he 19 [Spl.C.C.112/2012-J] processed the same and submitted the same to the Deputy Vigilance Officer (for short, 'the DVO') and that from there, it went to the Chief Vigilance Officer (for short, 'the CVO') and that with the approval of the CVO, the File was referred to the Chief Vigilance Commission (for short, 'the CVC') for their advise and that the CVC advised for issue of prosecution in agreement with the CBI and Ministry of the Urban Development. He has further deposed that after receiving the said File, he submitted the same to the DVO and that from there, it went to the CVO, who submitted the File to the Secretary, Urban Development, and that in turn, the Secretary has submitted the File to the Minister of Urban Development. He has further deposed that the Minister was placed with all the documents that were received from the CBI and that the said Minister has approved the Sanction to prosecute the Accused-1 and that after that approval, he authenticated the Order of Sanction in the name of the President of India and that he issued Sanction Order as per Ex.P.68 as per the Authentication Rules issued by the Ministry of Home Affairs. He has identified Ex.P.67 as the File relating to the said Proceedings. Contents of Ex.P.67 and Ex.P.68 show that the Complainant forwarded Investigation Report along with Statements of Witnesses recorded during investigation and Copies of documents collected during investigation to the Ministry of Urban Development, Government of India, New Delhi and that after fully and carefully examining all those documents, 20 [Spl.C.C.112/2012-J] the Ministry of Urban Development, Government of India, has passed Sanction Order in the name of the President of India to prosecute the Accused-1 for the offence punishable under Section 13(2) r/w. Section 13(1)(e) of the Act and that the said Order has been authenticated by P.W.39, who was the Under Secretary in the Ministry of Urban Development, Government of India and an Authorized Officer, at that time. The said documents further show that the Sanctioning Authority has applied its mind on all the materials placed before it regarding the Assets, Income, Savings and Expenditure of both the Accused and that with a well reasoned Speaking Order, the Sanctioning Authority formed an Opinion that it is a fit case to prosecute the Accused-1 for the offence punishable under Section 13(2) r/w. Section 13(1)(e) of the Act. As such, contents of Ex.P.67 and Ex.P.68 fully corroborate the evidence of P.W.39, which fully supports the contention of the Complainant that the Competent Authority has issued a valid Sanction Order to prosecute the Accused-1 in accordance with law.
23. In his Cross-examination, P.W.39 has deposed that he has not called for any explanation from the Accused-1 about the imputations made by the CBI in their Report. There is nothing on behalf of the Accused-1 and 2 to show that it is necessary to the Sanctioning Authority to call for an explanation from the Accused-1. P.W.39 has stated that on the basis of the CBI Report, it is mentioned 21 [Spl.C.C.112/2012-J] in Ex.P.68 that the Accused-2 was not having any independent income and that she was dependent on the income of her husband. However, he has denied that assessment is not made about the Prosecution Statement and the Defence Explanation. He has denied that Ex.P.68 is the verbatim reproduction of the Draft Sanction Order sent by the CBI and that the Ministry has not made any assessment nor looked into any documents and that he merely concurred with the advise of the CVC. This witness has stood well in the test of Cross-examination and there is no reason to disbelieve his evidence, which is well supported by the contents of Ex.P.67 and Ex.P.68.
24. It is the main contention of the learned Advocate appearing on behalf of the Accused-1 and 2 that the explanation given by the Accused-1 and 2 as per Ex.P.37 and as per Ex.D.7, during the investigation, was not forwarded to the Sanctioning Authority and that without looking into the said explanation, the Sanctioning Authority has passed Sanction Order, which has caused prejudice to the Accused-1 and 2 and that as such, the Sanction Order is illegal as it has not considered the explanation of the Accused-1 and 2. Though the Accused-1 and 2 have given their explanation as per Ex.P.37 and Ex.D.7, the said explanation is not supported by the documentary evidence. As such, the Complainant did not consider the said explanation as fit to be accepted. The Complainant has submitted a detail Report along with Statements of the 22 [Spl.C.C.112/2012-J] Accused-1 and 2 to the Sanctioning Authority. On considering the said Report as well as the Statements of the Accused-1 and 2, the Sanctioning Authority has passed the Sanction Order. As such, it is not fit to accept the bare Argument of the learned Advocate of the Accused-1 and 2 that non-consideration of the explanation of the Accused-1 and 2 by the Sanctioning Authority has caused prejudice to the Accused-1 and 2.
25. On considering all the above facts, undisturbed evidence of P.W.39 coupled with the contents of Ex.P.67 and Ex.P.68 and also position of Law, referred to above, it is clear that the Competent Authority has issued Sanction Order to prosecute the Accused-1 in accordance with Law for the offence punishable under Section 13(2) r/w. Section 13(1)(e) of the Act. For all these reasons, Point-1 is answered in the affirmative.
POINT-2
26. According to the Complainant, when the Assets held by the Accused-1 and 2 were computed during the Check Period, it revealed that the Accused-1 and 2 held Assets disproportionate to an extent of 57.98% to their known sources of income as detailed under:-
Sl. Amount
No. Description (In Rs.)
1. Assets at the beginning of the
Check Period (Statement-A) : 20,59,228
23 [Spl.C.C.112/2012-J]
2. Assets at the end of the Check
Period (Statement-B) : 54,98,005
3. Receipts and Income during the
Check Period (Statement-C) : 49,01,343
4. Expenditure during the Check
Period (Statement-D): 43,59,570
5. Assets Acquired during the Check
period (B-A): 34,38,777
6 Likely Savings during the Check
Period (C-D): 5,41,773
7. Extent to which Assets and
Expenditure are disproportionate
to likely savings {E=[(B-A)+D]- 28,97,004
C}:
8. Percentage of Disproportionate
Assets over the total Income 59%
(E X100/C) :
According to the Complainant, thus, by possessing
Disproportionate Assets to the tune of Rs.28,97,004/- to the known sources of income, the Accused-1 has committed Criminal Misconduct within the meaning of Section 13(1)(e) of the Act. On the other hand, the Accused-1 and 2 have denied the said contention of the Complainant and contended that the Complainant has not taken into consideration the legitimate income of the Accused-1 and 2 as well as customary Gifts and Presentations given to the Accused-2 and her children by their close relatives and that assessment made by the Complainant is incorrect and illegal.
24 [Spl.C.C.112/2012-J]
27. As per Section 13(1)(e) of the Act, a Public Servant is said to be guilty of the offence of Criminal Misconduct, if he or any person on his behalf, at any time during the period of his office, found possessed pecuniary resources or property disproportionate to his known sources of income, for which he cannot satisfactorily account. As per Explanation to that Section, 'known sources of income' means, income received from any lawful source and such receipt has been intimated in accordance with the provisions of any Law, Rules or Orders for the time being applicable to the Public Servant.
28. In support of her arguments, the learned Public Prosecutor has relied upon the following citations:-
1. State of Bihar -Vs- Lalu Prasad and Others [Judgment dated 20.03.2008 of Patna High Court];
2. Sajjan Singh -Vs- State of Punjab [AIR 1964 Supreme Court 464].
29. Sum and substance of the principles laid down in the decisions of the above citations are as follows:-
Conclusion of the Trial Court regarding income wholly based upon the findings of the Income Tax Appellate Tribunal without any corroboration by legal evidence is not acceptable;
25 [Spl.C.C.112/2012-J] Taking the most liberal view, it is possible for any reasonable man to say that assets to the extent of Rs.1,20,000/- is anything but disproportionate to a net income of Rs.1,03,000/-, out of which at least Rs.36,000/- must have been spent in living expenses.
30. In support of his arguments, the learned Advocate appearing on behalf of the Accused-1 and 2 has relied upon the following citations:-
1. State of Maharashtra -Vs-
Wasudeo Ramachandran
Kaidalwar [AIR 1981 Supreme
Court Cases 1186];
2. D.S.P., Chennai -Vs-
K.Inbasagaran [AIR 2006
Supreme Court 552];
3. Hemanta Kumar Mohanty -Vs-
State of Orissa [(1973) 39 CLT
361];
4. Sajjan Singh -Vs- State of
Punjab [AIR 1964 Supreme
Court 464];
5. Babappa -Vs- State by
Lokayukta Police, Gulbarga
[(2010) 2 KAR.L.J.];
6. Dr.I.C.Chittaranjan Dass -Vs-
State Special Police
Establishment [1981
CRI.L.J.495];
7. Sarat Rout -Vs- State of Orissa
[(2003) 24 OCR 240];
8. GVS Lingam -Vs- State of AP
[1999 CRI.L.J. 1026];
26 [Spl.C.C.112/2012-J]
9. Raghavendrachari -Vs- State of
Karnataka [2010 (2) KCCR
1411];
10. State of Punjab -Vs- Baldev
Singh [(1999) 6 Supreme Court
Cases 172];
11. Judgment of Nagpur Special
Court in Spl.C.C. No.61/2003;
12. K.N.Thapak -Vs- Special Police
Establishment & Others [II
(1996) CCR 411].
31. Sum and substance of the principles laid down in the decisions of the above citations are as follows:-
The extent and nature of burden of proof resting upon the Public Servant cannot be higher than the establishing his case by a preponderance of probability;
In the absence of any evidence that the Assets belonged to the Accused, he cannot be held liable in the Act for the Assets in joint possession. Explanation given by the wife of the Accused regarding unaccounted money assessed by the Income Tax Department in her hands is plausible;
Accounting by the Accused has to be liberally construed in favour of the Accused and he will not be called upon to prove to the pie any Assets to be found disproportionate to his known sources of income;
Prosecution should not suppress income;
The Accused is not expected to procure and preserve supporting Bills and Vouchers anticipating to be tried in a Court of Law;
27 [Spl.C.C.112/2012-J] In a family transaction, it is too much to expect that there would be outsiders to witness the father giving money to the son.
To accept such a thing is to accept some thing unnatural and abnormal and adducing any such evidence would be artificial and suspicious. The broad probabilities are to be taken into consideration;
As the relevant papers are not available, it would be proper to make a liberal estimate under the head of Living Expenditure favourable to the Accused;
Order of Police Officer not below the rank of Superintendent of Police to take up investigation is mandatory. If such an Order is not produced, adverse presumption can be drawn that the investigation was carried out without such Order and hence, investigation was illegal;
There is no reason to disbelieve the evidence of Prosecution Witnesses, which supports the defence;
What is known source is not the only salary, but, the other source of income of lawful source and if that is explained by the Accused and applying to preponderance of probability, it shows that the Accused has discharged his burden of proving the known source;
Income prior to Check Period has to be taken;
Income Tax Return filed by the Accused prior to the raid and filing of the FIR disclosed that substantial amount was invested by the wife of the Accused as a co-sharer in the construction of the building;
Generally direct evidence of receipt of Gold as Gift during marriage will not be available and in such situation, realities of life that parents give major portions of such ornaments has to be taken into consideration and credit should be given;
Market value of the Gold Assets to be calculated proportionately throughout the period and not on date of search;
28 [Spl.C.C.112/2012-J] Even though there was public available, Investigating Officer failed to secure them and only official witnesses signed the Mahazar. As such, the whole Mahazar stands suspicious;
Under Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985, it is imperative for the Investigating Officer to inform the suspect, orally or in writing, about his right to be searched before a Gazetted Officer or a Magistrate. Failure to give such information would not vitiate the trial, but render the recovery of illicit article illegal and vitiate the conviction and sentence if recorded only on the basis of possession of such illicit article;
In a case for the alleged offence under Section 13(1)(e) of the Act, it is necessary that the Accused must be given an opportunity at the first hand to explain the assets alleged to have been acquired by him. Only if he fails to explain, then the Prosecuting Agency may proceed to investigate the matter and prosecute him before giving an opportunity for explanation, laying down and seizure of the household articles is against the Provision of Law;
Any property covered by Income Tax Returns could not be seized on the allegation of lack of known source of income and the same have to be returned to the owner.
32. Keeping in view the above principles of law and submission made by both the parties, this case is dealt with.
1. ASSETS AT THE BEGINNING OF THE CHECK PERIOD (STATEMENT-A)
33. According to the Complainant, Assets found in the possession of the Accused-1 and 2 at the beginning of the Check Period are as follows:
29 [Spl.C.C.112/2012-J] Value of Sl. Description of Assets Assets No. (in Rs.)
1. Advance paid to acquire Property: 7,52,729
2. Movable Property including Vehicle: 3,45,400
3. Fixed Deposits, Bonds, Mutual Funds etc.: 2,15,000
4. Bank Balance: 4,37,126
5. Bank Balance of the Accused-2 at Bilaspur: 3,08,973 Total: 20,59,228 1.1: Advance Paid To Acquire Property
34. According to the Complainant, the Accused-1 has paid Rs.7,52,729/- as on 01.08.2005 to the Co-operative Society by name, Kendriya Lok Nirmana Sahakari Awas Samithi Limited, Ghaziabad (for short, 'the Society'), to acquire a Plot bearing No.10-P-4, Builders Area, Unit No.49. P.W.3-Sri.S.R.Pandey was the President of the Society from 2006 to March 2013. He has deposed about the allotment of Plot No.10 to the Accused-1. He has produced Extract of Dues and Receipts Ledger-Ex.P.14 showing the payments made by the Accused-1 in respect of that Plot. Ex.P.5 is the Note Book maintained by the Accused-1. Ex.P.5(b) is the portion of relevant entries made by the Accused-1 regarding payments made by him to the Society. Ex.P.2 is the Tripartite Sub-Lease Deed, Ex.P.77 is the Certified Copy of Sale Deed and Ex.P.78 is the Copy of Ex.P.2 in respect of the said Plot. All these documents show payment of Rs.7,52,729/- by the Accused-1 as on 01.08.2005 to acquire the said Plot. In 30 [Spl.C.C.112/2012-J] the Cross-examination, P.W.3 has stated that he did not make any Statement as per Ex.D.1 to the CBI Officers that he was the President of the Society. P.W.43 has recorded the said Statement of P.W.3 on 05.04.2011 as per his evidence. But, the Accused-1 and 2 did not prove Ex.D.1 by confronting the same to P.W.43. Even otherwise, the said Contradiction marked as per Ex.D.1 does not go to the root of the case destroying the case of the Complainant. Hence, it has to be ignored.
35. On the other hand, the Accused-1 and 2 have contended at Page-2 of Annexure-A to Written Arguments that the said payment has been made by the Accused-1 over a period of around 8 years in 19 installments. However, they have not disputed about the said payment made by the Accused-1 as on 01.08.2005. In fact, in their Written Arguments, referred to above, they have clearly admitted the said fact. As such, it is clear that the Accused-1 has paid Rs.7,52,729/- as on 01.08.2005 i.e., prior to the Check Period to the Society to acquire Plot No.10-P-4. Hence, it is held that the Accused-1 has paid Rs.7,52,729/- prior to the Check Period to the Society towards acquiring the Plot No.10-P-4.
1.2: Movable Properties Including Vehicle
36. According to the Complainant, during the Search and Inventory conducted at the residence of the Accused-1 31 [Spl.C.C.112/2012-J] and 2 on 13.08.2010 and 16.12.2010 by P.W.41 and P.W.43, Movable Properties worth Rs.3,45,400/- were available, which were purchased prior to the Check Period. According to the Complainant, at the time of the said Search and Inventory, the Accused-2 furnished details regarding mode of acquisition, year of acquisition and value of those properties and the details of those properties are as under:-
Sl. Description of Mode of Year of Amount No. Article Acquisition Acquisition (in Rs.)
1. Samsung Double Purchased 2000 14,000 Door Refrigerator:
2. Wood Cup Board: Purchased 2003 10,000
3. Double Cot Bed Purchased 1999 5,000 with Mattress:
4. Study Table: Purchased 1999 3,000
5. Computer Table: Purchased 2002 10,000
6. LCD Monitor, UPS, Purchased 2002 25,000 Spike:
7. 4 Brief Cases: Purchased 2002 2,000
8. Gas Stove with Purchased 1995 2,000 Two Cylinders:
9. Aqua Guard-Nova: Purchased 2005 6,000
10. Washing Machine- Purchased 2005 12,000 Whirlpool:
11. Two Iron Buckets: Purchased 1992 1,000
12. Water Cooler: Purchased 1998 1,000
13. Maruthi-800: Purchased 1999 1,95,000
14. 13 Gold Rings: Gifted/ 1992 10,000 Purchased
15. 20 pair of Ear Gifted/ 1992-93 10,000 Studs (Wrongly Purchased shown as 'Bar Studs' in the Charge Sheet):
32 [Spl.C.C.112/2012-J]
16. 1 Gold Chain-10 Purchased 1998 5,000 Gms.:
17. 1 Gold Chain-3 Purchased 2001 2,000 Gms.:
18. 5 Gold Pendants-9 Gifted/ 1996-2001 4,000 Gms.: Purchased
19. 1 Gold Ring-5 Purchased 2003 2,500 Gms.:
20. 3 Silver Glasses- Purchased 1994 20020 Gms.:
21. 5 Pair of Silver Purchased 1993-2000 500Anklets-200 Gms.
(Wrongly shown as 'Articles' in the Charge Sheet).:22. 2 Silver Bowls-50 Purchased 1993 200
Gms.:
23. Handi-Cam-Sony: Purchased 2004 20,000
24. Nikon Make Purchased 2000 5,000 Camera-1:
Total: 3,45,400 Ex.P.1 & Ex.P.4 are the Search Lists and Ex.P.1(a) & Ex.P.1(b) are the Inventory Proceedings prepared during the said Search and Inventory. P.W.1, P.W.2 and P.W.6 are the Witnesses to the said Proceedings. Contents of those documents show that the Accused-1 possessed Movable Properties worth Rs.3,45,400/-, which were acquired before the Check Period. The Accused-1 and 2 have not disputed the said fact also. On the other hand, at Page-2 of Annexure-A to their Written Arguments, they have admitted the said fact. As such, it is clear that the Accused-1 possessed Movable Properties worth Rs.3,45,400/-, which were acquired prior to the Check Period. Accordingly, it is held that the Accused-1 33 [Spl.C.C.112/2012-J] possessed Movable Properties worth Rs.3,45,400/-, which were acquired prior to the Check Period.
1.3: Fixed Deposits, Bonds, Mutual Funds Etc.
37. According to the Complainant, the Accused-1 and 2 found possessed Fixed Deposits, Bonds, Mutual Funds etc., worth Rs.2,15,000/-, which were acquired prior to the Check Period, and the details of the same are as under:-
Sl. Standing Amount
Details
No. in the (in Rs.)
name of
1. Reliance Mutual Fund: Accused-2 10,000
2. IDBI Flexi Bonds Accused-2 20,000
F-No.22IFB2383198:
3. IDBI Flexi Bond Accused-1 30,000
F-No.20IFB2079960:
4. IDBI Flexi Bond Accused-1 30,000
F-No.22IFB2383197:
5. IDBI Flexi Bond Accused-1 20,000
F-No.16IFB1772538:
6. IDBI Flexi Bond Accused-2 25,000
F-No.21IFB677253:
7. Sundaram Mutual Fund: Accused-1 10,000
8. HDFC Prudence Fund: Accused-2 20,000
9. HDFC Tax Plan 2000: Accused-1 10,000
10. Franklin India Prima Fund: Accused-1 10,000
11. Franklin India Flexi Cap Accused-1 10,000
Fund:
12. ICICI Bond No.04246-405: Accused-1 10,000
13. NSC 6NS49E024063: Accused-1 10,000
Total: 2,15,000
34 [Spl.C.C.112/2012-J]
38. P.W.4-Sri.Akshayakumar B.Chingadi is the
Assistant Manager of IDBI Bank, Mission Road Branch, Bengaluru. P.W.4 has handed over the File containing Applications and Bonds as per Ex.P.15 to P.W.43. P.W.5-
Sri.T.S.Sridharan is the Chief Financial Officer of Sundaram Assets Management Company Limited, Chennai. He has handed over a File containing Statements of Accounts and Application Forms as per Ex.P.16 to P.W.43. P.W.7- Smt.Samantha Ferris is the Regional Clients Service Manager, HDFC Assets Management Company Limited. She handed over a Letter along with Statement of Account as per Ex.P.17 and Ex.P.18 to P.W.43. P.W.8-Smt.Namrata Sanghvi is the Manager of Customer Services, Franklin Templeton India Management Limited. She handed over a File containing Application Forms & Statements of Account as per Ex.P.19 to P.W.43. P.W.16-Sri.Chandra Gopal Govindlal Gandhi is Sub Post Maser, Industrial Estate, Vadodara. He handed over a Covering Letter along with Details of NSC as per Ex.P.41 to P.W.43. Ex.P.21 is the Covering Letter along with Statement and Application Forms relating to ICICI Bonds. Ex.P.20 relates to the documents pertaining to Reliance Mutual Fund standing in the name of the Accused-2. These Ex.P.20 and Ex.P.21 have been marked by consent of both the parties. Contents of all these documents show that the Accused-1 and 2 possessed Bonds, Mutual Funds, NSC etc., worth Rs.2,15,000/-, which were acquired prior to the Check Period. The Accused-1 and 2 have not disputed this fact 35 [Spl.C.C.112/2012-J] also. On the other hand, they have admitted the said fact in Page-3 of Annexure-A to their Written Arguments. Hence, it is held that the Accused-1 and 2 possessed Bonds, Mutual Funds, NSC etc., worth Rs.2,15,000/-, which were acquired prior to the Check Period.
1.4: Bank Balance In The Names Of The Accused-1, The Accused-2 & Their Children
39. According to the Complainant, as on 01.08.2005, the Accused-1 and 2 and their children-Miss.Riya Sandhu and Mr.Rishabjot Sandhu were having Bank Balance of Rs.4,37,126/- in all as under:-
Amount Standing
Sl. Account Number
(in Rs.) In the
No. and Bank
Name of
1. SB A/c. No.798520 of Royal 21,275 Accused-2.
Bank of Scotland:
2. SB A/c. No.000301032433 12,931 Accused-1.
of ICICI Bank, Vadodara:
3. SB A/c. No.10569607810 53,466 Accused-1.
of SBI, New Delhi:
4. SBI Nirman Bhawan PPF 79,076 Accused-2.
A/c. No.10569766519:
5. SBI Nirman Bhawan PPF 49,162 Daughter of the
A/c. No.10569780001: Accused-1 & 2.
6. SBI Nirman Bhawan PPF 4,232 Son of the
A/c No.10569780012: Accused-1 & 2.
7. SBI Nirman Bhawan PPF 1,76,984 Accused-1.
A/c. No.10569763608:
Total: 4,37,126
36 [Spl.C.C.112/2012-J]
40. P.W.20-Sri.Rithish Kumar Mavila was the
Manager of the Royal Bank of Scotland, Residency Road, Bengaluru, from 2006 to 2012. He has handed over a File containing Account Opening Forms, Statement of Account and other papers as per Ex.P.45 to P.W.43. Those documents show that there was Bank Balance of Rs.21,275/-in the S.B. Account of the Accused-2 as on 01.08.2005. P.W.9-Smt.Sumitha, the then Branch Operations Manager of the ICICI Bank, HSR Layout Branch, Bengaluru, has produced Ex.P.23, which is a File relating to the S.B.Account of the Accused-1, to P.W.43. As per this document, there was Bank Balance of Rs.12,931/- in that Account as on 01.08.2005. P.W.10- Sri.B.Lal was working as Assistant Manager, SBI, Nirman Bhawan Branch, New Delhi. He handed over Ex.P.24, which is a File relating to the S.B.Account of the Accused-
1. As per the evidence of P.W.10 as well as Ex.P.24, there was Bank Balance of Rs.53,466/- in that Account as on 01.08.2005. P.W.10 has also produced Ex.P.25, which is a File relating to PPF Account of the Accused-2, to P.W.43. As per the evidence of P.W.10 and contents of Ex.P.25, there was Rs.79,076/- in that Account of the Accused-2 as on 01.08.2005. As per the evidence of P.W.10 and Ex.P.25, there was Bank Balance of Rs.49,162/- in the PPF Account of Miss.Riya Sandhu, Rs.44,232/- in the PPF Account of Mr.Rishabjot Sandhu and Rs.1,76,984/- in the PPF Account of the Accused-1 as on 01.08.2005. Thus, as per the above evidence, there was Bank Balance of 37 [Spl.C.C.112/2012-J] Rs.4,37,126/- in all in the names of the Accused-1, the Accused-2 and their children as on 01.08.2005. The Accused-1 and 2 have not disputed this fact also. On the other hand, in Page-3 of Annexure-A to their Written Arguments, they have admitted the said facts. Hence, it is held that there was Bank Balance of Rs.4,37,126/- in all in the names of the Accused-1, the Accused-2 and their children prior to the Check Period.
1.5: Bank Balances Of The Accused-2
41. According to the Complainant, the Accused-2 is having a Joint Account with her mother at Punjab and Sind Bank, Dayalbandh, Gurudwara Branch, Bilaspur and as on 01.08.2005, there was a Bank Balance of Rs.3,08,973/- in that Account. By consent of both the parties, Ex.P.63- Letter dated 25.08.2011 issued by Punjab and Sind Bank has been marked. As per that Letter, there was Bank Balance of Rs.3,08,973/- as on 01.08.2005 in the Joint Account of the Accused-2 and her mother at Punjab and Sind Bank, Dayalbandh, Gurudwara Branch. The Accused- 1 and 2 have also admitted the said fact at Page-3 of Annexure-A to their Written Arguments. Hence, it is held that there was Bank Balance of Rs.3,08,973/- in the Joint Account of the Accused-2 and her mother at Punjab and Sind Bank, Dayalbandh, Gurudwara Branch prior to the Check Period.
38 [Spl.C.C.112/2012-J] 1.6: Total Of Assets Shown In The Heads-1.1 to 1.5
42. From the above evidence placed by the Complainant and admission made by the Accused-1 and 2, it is clear that the Accused-1 and 2 possessed Assets worth Rs.20,59,228/- before the Check Period as contended by the Complainant. Accordingly, it is held that the Accused-1, the Accused-2 and their children possessed Assets worth Rs.20,59,228/- before the Check Period.
1.7: Items Left By The Complainant As Contended By The Accused-1 & 2
43. According to the Accused-1 and 2, the Complainant has left some of the Assets, which were legally acquired before the Check Period, and the details of those left out Assets are as follows:-
Value of Sl. Details Standing in the Asset No. the name of (In Rs.) 7.1. Another NSC: Accused-1 10,000 7.2. Balance in the SB Accused-2 46,978 Account at HDFC Bank:
7.3. Amount given to Accused-1: 25,000 father of the Accused-2: 20,000 Accused-1:
--------
Total: 45,000
--------
7.4. Cash on Hand: Accused-2 2,25,000
7.5. Cash on Hand: Accused-1 5,000
Total: 3,31,978
39 [Spl.C.C.112/2012-J]
1.7.1: Another NSC For Rs.10,000/-
44. According to the Accused-1 and 2, on
20.04.2003, the Accused-1 purchased NSC bearing
No.23375 for Rs.10,000/- from V.N.Colony Post Office, Vadodara and after maturity, he received Rs.16,103/- from Koramangala Post Office, Bengaluru, through the Cheque bearing No.966690 on 27.07.2009 and he encashed that Cheque through his S.B.Account with ICICI Bank on 31.07.2009 and as such, it has to be held that the Accused-1 possessed Rs.10,000/- by way of NSC at the commencement of the Check Period. D.W.1-Sri.Dinesh Maiya is a Freelance Accountant. According to him, he prepared Income Tax Returns of the Accused-1 and 2. In his evidence, D.W.1 has deposed about receipt of Rs.16,103/- by the Accused-1 as the Proceeds from NSC.
Ex.D.17 is the Information furnished by the Postal Department under Right to Information Act, 2005. As per this document, the Accused-1 purchased NSC bearing No.23375 on 20.04.2003 for Rs.10,000/- from V.N.Colony Post Office, Vadodara and he received Rs.16,103/- through the Cheque bearing No.966690 as Proceeds of that NSC on 27.07.2009 after its maturity. Ex.P.22 is the Statement of Account relating to the S.B.Account of the Accused-1 at ICICI Bank, HSR Layout, Bengaluru. This document shows that on 31.07.2009, the Accused-1 has encashed the said Cheque. As such, contents of Ex.D.17 and Ex.P.22 corroborate the evidence of D.W.1, which fully fortifies the contention of the Accused-1. There is no reason to 40 [Spl.C.C.112/2012-J] disbelieve the said evidence placed by the Accused-1 and
2. Though the Complainant has left out the said Asset, during the course of Arguments, the learned Public Prosecutor has fairly submitted that the said amount of Rs.10,000/- may be taken as the Asset held by the Accused-1 at the beginning of the Check Period. On considering the said evidence available on record, it has to be held that the Accused-1 possessed NSC worth Rs.10,000/- at the commencement of the Check Period and that the Complainant has left out the said item while computation. Accordingly, it is held that the Accused- 1 possessed another Rs.10,000/- also by way of NSC at the commencement of the Check Period.
1.7.2: Balance In S.B.Account At HDFC Bank
45. According to the Accused-1 and 2, the Accused-2 opened S.B.Account bearing No.00331000135222 at HDFC Bank, Sarjapur Road Branch, Bengaluru, and as on 01.08.2005, there was balance of Rs.46,978/- in that Account and the Complainant has left out the same while making computation of the Assets. D.W.1 has deposed the said fact in his evidence. Ex.D.14 is the Statement of Account issued by the HDFC Bank, Sarjapur Branch, Bengaluru. As per this document, the Accused-2 has opened S.B.Account on 29.08.2003 and as on 22.07.2005, the Accused-2 had balance of Rs.46,977.99. Contents of this document corroborate the evidence of D.W.1, which fully fortifies the contention of the Accused-1 and 2.
41 [Spl.C.C.112/2012-J] Except contending by the learned Public Prosecutor that Ex.D.14 is not a Certified Copy, the Complainant has not placed any material to rebut the said evidence. Ex.D.14 is a Computer Generated Statement certified by the Bank under Banker's Books Evidence Act, 1891. There is nothing in this document or nothing on behalf of the Complainant to suspect the genuineness of the document. As such, it is not fit to accept the bare contention of the learned Public Prosecutor that Ex.D.14 is not a Certified Copy. On considering the evidence placed by the Accused-1 and 2 and in the absence of anything contrary on behalf of the Complainant, it has to be held that the Accused-2 possessed Rs.46,978/- in her S.B.Account at the commencement of the Check Period and that the same has been left out by the Complainant while computation. Accordingly, it is held that at the commencement of the Check Period, the Accused-2 possessed Rs.46,978/- also in her S.B.Account.
1.7.3: Amount Given To The Father Of The Accused-1
46. According to the Accused-1 and 2, after withdrawing Rs.25,000/- from his GPF Account, the Accused-1 gave Rs.25,000/- to his father-Sri.M.S.Sandhu and the Accused-2 gave Rs.20,000/- to the father of the Accused-1 on the occasion of Namakaran and Pagari ceremony of his grandson and cousin's marriage of the Accused-1 in the year 1997. According to the Accused-1 42 [Spl.C.C.112/2012-J] and 2, father of the Accused-1 returned that amount of Rs.45,000/- by adding Rs.5,000/-, in all Rs.50,000/-, on 15.02.2007 through a DD. According to the Accused-1 and 2, as such, it has to be held that the Accused-1 and 2 possessed Rs.45,000/- at the commencement of the Check Period and that the Complainant has not taken account of this amount. In support of their contention, the Accused-1 and 2 have relied upon Ex.P.69-Letter with 3 Enclosures sent by the father of the Accused-1 to P.W.43 during investigation, Ex.D.7-Explanation of the Accused-1 given to P.W.43 during investigation and Ex.D.23-Statement of Account relating to S.B.Account No.035701502689 standing in the name of the Accused-1 at ICICI Bank.
47. In Ex.P.69, father of the Accused-1 has admitted receipt of Rs.45,000/- from the Accused-1 and 2 for the purpose of his daughter's son's Namakaran, Pagari ceremony and marriage of his brother's daughter. He has also admitted in that Letter about return of that amount by him to the Accused-1 and 2 by way of DD dated 15.02.2007 for Rs.50,000/-. The said document also contains Statement of Account relating to the S.B.Account of the father of the Accused-1 at ICICI Bank. The said document shows withdrawal of Rs.50,112/- on 15.02.2007 by the father of the Accused-1 from that Account. In his explanation as per Ex.D.7, the Accused-1 has also stated the said facts. The said explanation contains Copy of GPF Withdrawal Order dated 12.12.1996. This document shows 43 [Spl.C.C.112/2012-J] that the Accused-1 has withdrawn Rs.25,000/- from his GPF Account for the purpose of Namakaran, Pagari and marriage as contended by him. Ex.D.23 is the Statement of Account relating to S.B.Account No.035701502689 standing in the name of the Accused-1 at ICICI Bank. This document shows that the Accused-1 encashed DD of Rs.50,000/- on 17.04.2007 from his Account. There is no reason to disbelieve the contents of the said documents and explanation of the Accused-1 and 2. Contents of all these documents coupled with the explanation given by the Accused-1 and 2 indicate that they paid Rs.45,000/- to the father of the Accused-1 in the year 1997 and that they received back that amount by way of DD for Rs.50,000/- in the year 2007. The Complainant has not placed any material to rebut the said explanation offered by the Accused-1 and 2. P.W.43 has also not given any explanation about the said evidence available on behalf of the Accused-1 and 2 and not taking into account of the said transactions. On considering the said undisturbed evidence available on behalf of the Accused-1 and 2, it is clear that the probabilities are more in favour of the Accused-1 and 2 to believe that they paid Rs.45,000/- to the father of the Accused-1 in the year 1997 and that they received back the said amount by way of DD for Rs.50,000/- in the year 2007 and that the Complainant has not taken into account of the said amount. Hence, it is held that the Accused-1 and 2 possessed another 44 [Spl.C.C.112/2012-J] Rs.45,000/- in the hands of the father of the Accused-1 at the beginning of the Check Period.
1.7.4: Cash On Hand With The Accused-2
48. According to the Accused-1 and 2, Cash of Rs.2,25,000/- was there with the Accused-2 as on 01.08.2005, which has not been taken into consideration by the Complainant. According to the Accused-1 and 2, father of the Accused-1 i.e., C.W.56, who is the father-in- law of the Accused-2, had given an amount of Rs.4,00,000/- to Rs.5,00,000/- approximately from 1994 to 2005 to the Accused-2 towards Gift on various occasions and family functions and also for upbringing of his grand children as assured by him. According to the Accused-1 and 2, as the inherited property was not divided between the Accused-1 and his brother, C.W.56 took it as his moral duty to extend financial help to his children out of the income earned from the inherited property. According to the Accused-1 and 2, an amount of Rs.1,50,000/- was with the Accused-2 out of the savings of the said amount. According to the Accused-1 and 2, another Rs.75,000/- was accumulated by the Accused-2 out of Gifts received by her from her relatives and friends on her birthday, children's birthday, anniversary and on various other family functions and thus, she had cash of Rs.2,25,000/- in hand at the commencement of the Check Period. In support of the said contention, the Accused-1 45 [Spl.C.C.112/2012-J] and 2 have relied upon the evidence of P.W.38 and D.W.2, Ex.P.69, Ex.D.7 and Ex.D.28 to Ex.D.34.
49. P.W.38-Sri.Sanjeet Singh Wadhwa is the brother of the Accused-2 and brother-in-law of the Accused-1. In his evidence, he has stated that in the year 2005, he had gifted Rs.1,00,000/- by Cash to his sister-Accused-2. In his Cross-examination, he has stated that he has given Gift to his sister and that has been generally in Cash. P.W.38 has not stated that he gifted the said amount of Rs.1,00,000/- to the Accused-2 prior to 01.08.2005. In fact, he has not stated as to on which date in the year 2005, he gifted the said amount. Even otherwise, there is nothing to show that P.W.38 possessed Rs.1,00,000/- to Gift the same to the Accused-2 in the year 2005. It is not the contention of the Accused-1 and 2 that the Accused-2 received Gift of Rs.1,00,000/- from P.W.38 prior to or as on 01.08.2005 and that the said amount is part of Rs.2,25,000/-, which she is claiming as Cash in hand. As such, the evidence of P.W.38 does not in any way assist the Accused-1 and 2 to substantiate their contention.
50. D.W.2-Sri.Kulbir Singh Sandhu is the younger brother of the Accused-1. He is also the General Power of Attorney Holder of his father. Ex.D.28 is the General Power of Attorney in this regard. He has deposed that his father has irrigated lands measuring more than 10 acres at Raniwala, Malout Tahasil, Mutatsar Shahib District, Punjab, his father was working as Civil Engineer at Allahabad in a 46 [Spl.C.C.112/2012-J] Government Department and that after leaving that job, he is working as Class-I Civil Contractor for M.P.Housing Board, Irrigation and PWD. He has produced Ex.D.28 to Ex.D.34. Ex.D.29 is said to be the General Power of Attorney executed by the grandfather of the Accused-1 in favour of his son i.e., C.W.56 in the year 1961 to look after the affairs of the grandfather of the Accused-1. Ex.D.30 is the Solvency Certificate issued by Tahasildar in the year 1969 stating that the grandfather of the Accused-1 possessed Immovable Properties worth Rs.1,10,000/- at Raniwala. Ex.D.31 is the Statement issued by the Assistant Engineer (Civil), Rewa (M.P.) showing payments made in the year 1975 and 1976 to the grandfather of the Accused- 1 in respect of contract work. As per this document, in the year 1975 and 1976, grandfather of the Accused-1 has received Rs.2,75,212.50 towards the contract work. Ex.D.32 is a Letter dated 13.07.1987 issued by the Madhya Pradesh Housing Board Division, Rewa, informing the Sales Tax Officer that father of the Accused-1 executed construction of Post Metric Hostel Building, Sump and Well at Rewa and that materials supplied to the Contractor were tax paid. Ex.D.33 is the Report by Patwari Village, Raniwala, stating that as per Revenue Records for the year 2008-2009, C.W.56 was the owner of 80K-16M cultivable agricultural land. Ex.D.34 is an Affidavit filed by C.W.56 that he has around 10 acres of land at Raniwala Village. As per these documents, grandfather of the Accused-1 was owning lands, he received Rs.2,75,212.50 from the 47 [Spl.C.C.112/2012-J] Government towards contract work, father of the Accused- 1 is owning agricultural lands and that he is also doing contract work. As such, these documents support the evidence of D.W.2. However, these documents as well as the evidence of D.W.2 do not show about the actual income of the father of the Accused-1 from 1994 to 2005.
51. D.W.2 has deposed that his father has given Rs.3.5 Lakhs to the Accused-1 during 2005 to 2010 and that earlier to 2005, his father had given around Rs.4,00,000/- to Rs.5,00,000/- out of the income earned from the Joint Property. As per this Statement of D.W.2, C.W.56 has given Rs.3.5 Lakhs to the Accused-1 during the years 2005 to 2010 and that prior to 2005, he had given around Rs.4,00,000/- to Rs.5,00,000/- to the Accused-1. But, it is not at all the evidence of D.W.2 that his father i.e., C.W.56 gave Rs.4,00,000/- to Rs.5,00,000/- to the Accused-2 as Gift as contended by the Accused-1 and 2. As such and as the evidence of D.W.2 and the documents produced by him do not show about actual income of his father from 1994 to 2005, it is not safe to rely upon his evidence. As such, his evidence also does not in any way assist the Accused-1 and 2 to substantiate their contention.
52. In Ex.P.69, C.W.56 has stated that he has given Rs.4,00,000/- to Rs.5,00,000/- approximately from 1994 to 2005 to the Accused-2. But, he has not stated that he 48 [Spl.C.C.112/2012-J] gave the said amount towards Gift as contended by the Accused-1 and 2. C.W.56 has not come forward to give evidence to substantiate his contention in Ex.P.69. There is nothing to show that C.W.56 possessed sufficient income so as to gift Rs.4,00,000/- to Rs.5,00,000/- from 1994- 2005. On the other hand, as observed above, the Accused- 1 and 2 paid Rs.45,000/- on the occasion of Namakaran and Pagari ceremony of grandson of C.W.56 and cousin's marriage of the Accused-1 in the year 1997 and C.W.56 returned that amount in the year 2007. If C.W.56 was financially sound, capable of gifting Rs.4,00,000/- to Rs.5,00,000/- to the Accused-2 from 1994 to 2005 as contended by the Accused-1 and 2, there was no occasion to borrow Rs.45,000/- from the Accused-1 and 2 in the year 1997. Furthermore, the fact that he repaid that amount in the year 2007 i.e., after 10 years indicates that he was not financially sound for a period of 10 years even to repay just Rs.45,000/-. This circumstance strongly goes against the Accused-1 and 2, which makes difficult to accept their version.
53. In Ex.D.7 at Page-11, the Accused-1 has contended by way of explanation that the Accused-2 possessed Rs.1,50,000/- Cash on hand out of the amount given by C.W.56 for upbringing his grand children. He has also contended in that document that the Accused-2 possessed Cash on hand of Rs.75,000/-, which was accumulated by her out of Gifts received on her birthday, anniversary, children's birthday and on various other 49 [Spl.C.C.112/2012-J] family functions. The Accused-1 and 2 did not choose to adduce their evidence to substantiate the said contention. In the absence of such evidence and also supporting evidence, it is not safe to accept their bare contention.
54. It is true that, in Hindu families casual presents on festive occasions and other functions are made and that such transactions will not be witnessed normally by outsiders. It is also true that transactions of family Gifts are customary and traditional in nature and that no records are normally maintained. But, in order to protect the Public Servant from false allegations and also in order to check his illegalities, Conduct Rules have been framed. As the Accused-1 is a Public Servant of the Government of India, the Central Services (Conduct) Rules, 1964 (for short, 'the Rules') are applicable to him. Rule 13(1) and Rule 13(2) of the Rules read as under:
"13(1): Save as otherwise provided in these rules, no Government Servant shall accept, or permit any member of his family or any other person acting on his behalf to accept any gift.
13(2): On occasions such as weddings, anniversaries, funerals or religious functions, when the making of gift is in conformity with the prevailing religious and social practice, a Government Servant 50 [Spl.C.C.112/2012-J] may accept gifts from his near relatives or from his personal friends having no official dealings with him, but shall make a report to the Government, if the value of such gift exceeds-
i. Rupees seven thousand in the case of a Government servant holding any Group 'A' post."
As per Rule-13(1) of the Rules, the Government Servant is prohibited from accepting any Gift from any person. As per that Rule, he shall also not permit any member of his family or any other person acting on his behalf to accept Gift. However, as per Rule-13(2) of the Rules, it is permissible for the Government Servant to accept Gifts from near relatives or from his personal friends having no official dealings with him on occasions, such as Weddings, Anniversaries, Funerals or Religious Functions and when making of the Gift is in conformity with the prevailing religious and social practices. But, he shall make a Report to the Government about that Gift, if the value of that Gift exceeds Rs.7,000/- in respect of a Government Servant holding Group 'A' post. As the Accused-1 is a Government servant holding Group 'A' post, this Rule is applicable to him.
55. As per the contention of the Accused-1 and 2, from 1994 to 2005, the Accused-2 has received Rs.4,00,000/- to Rs.5,00,000/- from C.W.56 and Rs.75,000/- from her relatives and her friends as Gift on 51 [Spl.C.C.112/2012-J] various occasions. As such, as per the said contention, the Accused-2 has received around Rs.6,00,000/- as Gift from 1994 to 2005. As the details of the said Gifts are not given by the Accused-1 and 2, it has to be inferred as per the contention of the Accused-1 and 2 that the Accused-2 has received Gifts at an average of more than Rs.50,000/- per annum. As the said amount exceeds Rs.7,000/-, it is mandatory on the part of the Accused-1 to report the same to the Government, if at all the Accused-2 had received such amount. But, there is nothing to show that the Accused-1 has reported about the said Gift received by the Accused-2, who is his family member.
56. The learned Advocate appearing on behalf of the Accused-1 and 2 has contended that, in view of the Clarification issued by the Ministry of Home Affairs on 28.08.1959, it is not necessary to report the transactions made by the spouse or any other member of the family of the Government Servant out of his or her own funds including Stridhana, Gifts, Inheritance etc., and that as such, Gifts received by the Accused-2 are not reportable. The said Clarification, relied upon by the learned Counsel appearing on behalf of the Accused-1 and 2, is given in respect of Rule-18 of the Rules, which deals with reporting of acquisition and disposal of movable and immovable properties by the Government Servant and his family members. The said clarification reads as under:
"Transactions entered into by the spouse or any other member of family of a 52 [Spl.C.C.112/2012-J] Government servant out of his or her own funds (including stridhan, gifts, inheritance, etc.), as distinct from the funds of the Government servant himself, in his or her own name and in his or her own right, would not attract the provisions of sub-rules (2) and (3) of Rule
18."
As per the said clarification, only 'transactions' entered into by the spouse or any other member of the family of the Government Servant that too out of the funds of Stridhan Funds, Gifts and Inheritance etc., of that spouse are not reportable under Rules-18(2) and (3) of the Rules. This Clarification does not exempt them reporting of the Gifts received by the spouse or any other member of the family of the Government Servant as per Rule-13 of the Rules.
57. By relying upon Letter dated 26.02.2001 in No.99/VGL/69 issued by the Central Vigilance Commission to the Chief Vigilance Officers regarding Guidelines to be followed in handling of intimations of acquisition reported by Public Servants, the learned Advocate appearing on behalf of the Accused-1 and 2 contended that it is not necessary to make a report about the transactions of the Movable Properties, if the value of those properties does not exceed 2 months basic pay of the official and that as such, Gifts received by the Accused-2 gets exemption from reporting by the Accused-1 to the Prescribed Authority. On careful study of the said Guidelines, it is clear that the said 53 [Spl.C.C.112/2012-J] Guidelines are issued with a view to avoid putting unnecessary queries to the Officer, who reports such transactions, about source of income of such transactions. In those Guidelines, a direction is given to simply note about the intimations of such transactions as a general rule without rising unnecessary queries. However, as per the said Guidelines, those Guidelines are not applicable to the Assets, which are disproportionate to the known sources of income. Furthermore, the said Guidelines are brought into force only on 09.05.2011 by amending the Rule 18(3) of the Rules. As such, the said Guidelines are of no assistance to the Accused-1 and 2 to substantiate their contention as the incident of this case took place prior to 09.05.2011.
58. As the Accused-2 being the spouse of the Accused-1 has received Gifts worth more than Rs.50,000/- per year as contended by the Accused-1 and 2, it is mandatory on the part of the Accused-1 to report the same to the Government as per Rule-13 of the Rules. If at all the Accused-2 had received such Gifts from C.W.56, the Accused-1 would have reported the same to the Government. But, there is nothing on behalf of the Accused-1 and 2 to show that the Accused-1 has reported the said Gift. Hence, the only inference that could be drawn under the circumstances is that the Accused-2 did not receive any such Gifts.
54 [Spl.C.C.112/2012-J]
59. It is pertinent to observe here that Presentations, Gifts etc., are not one sided. Normally, if any person receives Presentations, Gifts etc., from another person or family in festivals and functions, that person will also gives Presentations, Gifts etc., to the same extent or even more to the person or family during the festivals or functions in that family and it is the culture also. In the case on hand, though the Accused-1 and 2 have contended about receiving Presentations, Gifts etc., from others, they have not whispered anything about Presentations, Gifts etc., from their side to others. As such, contention about savings by way of Gifts, Presentations etc., is unacceptable.
60. Further more, if at all the Accused-2 possessed Cash of Rs.2,25,000/- on hand in the year 2005, out of the savings as contended by the Accused-1 and 2, the Accused-1 would have declared the same in his Annual Statement of Assets and Liabilities. But, the Accused-1 and 2 have not placed any such evidence. Even otherwise, normally, people other than businessmen will not keep more than Rs.5,000/- or Rs.10,000/- as Cash in their hands. As the Accused-2 has her S.B.Account and other Deposit Accounts, it is impossible to believe that she had kept Cash of Rs.2,25,000/- in her hand as contended by the Accused-1 and 2.
61. On considering all the above facts, circumstances and the evidence available on record and as there is no 55 [Spl.C.C.112/2012-J] intimation about the so called Gifts received by the Accused-2 and the Cash on hand possessed by her as per the Rules, it is clear that probabilities are not at all in favour of the Accused-1 and 2 to believe that the Accused- 2 possessed Rs.2,25,000/- as Cash on hand at the time of commencement of the Check Period. Hence, it is held that the Accused-1 and 2 failed to prove the said Cash of Rs.2,25,000/- on hand at the commencement of the Check Period as contended by them.
1.7.5: Cash On Hand With The Accused-1
62. According to the Accused-1 and 2, the Accused-1 possessed Cash of Rs.5,000/- on hand out of his salary income at the commencement of the Check Period for meeting his domestic and routine expenses. Though the Accused-1 and 2 have not placed any acceptable material in this regard, on considering the salary and other allowances of the Accused-1 and his routine and domestic expenses, at the commencement of the Check Period, there is no reason to disbelieve the contention of the Accused-1 and 2 that the Accused-1 possessed Cash of Rs.5,000/- on hand out of his salary savings for meeting his domestic and other routine expenses, at the commencement of the Check Period. The Complainant has not considered this aspect. As such, it is held that the Accused-1 possessed Cash of Rs.5,000/- on hand, 56 [Spl.C.C.112/2012-J] out of his salary income, at the commencement of the Check Period.
1.8: FINAL CALCULATION OF STATEMENT-A
63. In view of the above findings, Final Calculation of Assets held by the Accused-1 and 2 at the commencement of the Check Period is as under:
Sl. Amount
Particulars (In Rs.)
No.
1. Amount Paid to Acquire Property 7,52,729
bearing Plot No.10-P-4:
2. Movable Properties including Vehicle: 3,45,400
3. Fixed Deposits, Bonds, Mutual Funds etc.: 2,15,000
4. Bank Balance in the Names of the 4,37,126 Accused-1, Accused-2 and their Children:
5. Bank Balance of the Accused-2 at Bilaspur: 3,08,973
6. Another NSC in the name of the 10,000 Accused-1:
7. Balance in the SB Account at HDFC 46,978 Bank in the name of the Accused-2:
8. Amount given to father of the Accused-1:
Rs.25,000/- by the Accused-1 & Rs.20,000/- by the Accused-2: 45,000
9. Cash on Hand with the Accused-1: 5,000 Total: 21,66,206 Thus, it is clear that at the commencement of the Check Period, the Accused-1 and 2 possessed Assets worth 57 [Spl.C.C.112/2012-J] Rs.21,66,206.00. Hence, it is held that the Assets possessed by the Accused-1 and 2 at the commencement of the Check Period is Rs.21,66,206.00.
2. ASSETS POSSESSED BY THE ACCUSED-1 & 2 AT THE END OF THE CHECK PERIOD(STATEMENT-B)
64. In the Charge Sheet filed by the Complainant, it is stated that at the end of the Check Period, the Assets possessed by the Accused-1 and 2 were worth Rs.54,98,005/-. However, during the course of Arguments, the learned Public Prosecutor has stated that the Assets at the end of the Check Period possessed by the Accused-1 and 2 are worth Rs.54,97,750/- only. Details of the said Assets, according to the learned Public Prosecutor, are as follows:
Sl. Value of Assets
Description of Assets
No. (in Rs.)
1. Immovable Properties: 27,44,557
2. Movable Properties including 4,84,080
Vehicle:
3. Fixed Deposits, Bonds, Mutual Funds 4,22,905
etc.:
(Rs.4,23,159/-as
per Charge Sheet).
4. Bank Balances: 11,33,169
(Rs.11,33,170/-as
per Charge Sheet).
58 [Spl.C.C.112/2012-J]
5. Cash Seized: 7,00,000
6. Balance in the Bank Account of the
Accused-2: 13,039
Total: 54,97,750
(Rs.54,98,005/-
as per Charge
Sheet.)
2.1: Immovable Properties
65. According to the Complainant, the Accused-1 paid Rs.8,94,557/- for purchasing Plot No.10-P-4, Builders Area, Unit No.49 and he has constructed a small House during the Check Period by spending Rs.1.5 Lakhs and as such, the said Asset is worth Rs.10,44,557/- at the end of the Check Period. Contents of Ex.P.2, Ex.P.5, Ex.P.31- Assets and Liabilities Statement of the Accused-1 and also Ex.P.39-Personal File maintained by the Controlling Authority of the Accused-1 support the contention of the Complainant. Ex.P.31 and Ex.P.39 also show about the Report made by the Accused-1 to the Prescribed Authority about acquiring of the said Asset. The Accused-1 and 2 have not disputed the said contention of the Complainant. On the other hand, in Page-9 of Annexure-A to the Written Arguments filed by the Accused-1 and 2, the Accused-1 and 2 have admitted the said contention of the Complainant. As such, it is clear that at the end of the Check Period, the Accused-1 and 2 have possessed House and Plot bearing No.10-P-4 worth Rs.10,44,557/-.
59 [Spl.C.C.112/2012-J]
66. According to the Complainant, on 13.01.2006, the Accused-1 and 2 have purchased a Flat bearing No.B- 403, 4th Floor, K.Co-operative Group Housing Society Ltd., Sector-12, Dwaraka, New Delhi, by paying Rs.17,00,000/- and as such, they possessed the said Flat worth Rs.17,00,000/- at the end of the Check Period. Ex.P.39- Personal File of the Accused-1, Ex.P.40-Details of Payment and Ex.P.77-Certified Copy of Sale Deed dated 02.02.2006 fortify the said contention of the Complainant. The Accused-1 and 2 have not disputed the said contention of the Complainant. On the other hand, in Page-9 of Annexure-A to the Written Arguments filed by the Accused-1 and 2, the Accused-1 and 2 have admitted the said contention of the Complainant. As such, it is clear that at the end of the Check Period, the Accused-1 and 2 have possessed Flat No.B-403 worth Rs.17,00,000/-.
67. Thus, it is clear that the Accused-1 and 2 possessed Immovable Properties worth Rs.27,44,557/- at the end of the Check Period. Accordingly, it is held that the Immovable Assets possessed by the Accused-1 and 2 at the end of the Check Period are worth Rs.27,44,557/-.
2.2: Movable Properties Including Vehicle
68. According to the Complainant, as per Search and Inventory made by P.W.41 and P.W.43 in the House of the Accused-1 and 2, it was found that the Accused-1 and 2 60 [Spl.C.C.112/2012-J] possessed Movable Properties worth Rs.4,84,080/- at the end of the Check Period. The details of the said Movable Properties, according to the Complainant, are as follows:-
Sl. Description of Mode of Year of Amount No. Article Acquisition Acquisition (in Rs.)
1. Samsung Double Purchased 2000 14,000 Door Refrigerator:
2. Sony Bravia Purchased 2008 47,000 LCD 32':
3. Wood Cup Board: Purchased 2003 10,000
4. Double Cot Bed Purchased 1999 5,000 with Mattress:
5. Study Table: Purchased 1999 3,000
6. Bamboo Almirah: Purchased 2009 1,500
7. Computer Table: Purchased 2002 10,000
8. LCD Monitor, UPS, Purchased 2002 25,000 Spike:
9. 4 Brief Cases: Purchased 2002 2,000
10. Gas Stove with Purchased 1995 2,000 Two Cylinders:
11. Microwave Oven- Purchased 2006 9,000 Samsung:
12. Mixer-Ken Star: Purchased 2007 2,000
13. Aqua Guard-Nova: Purchased 2005 6,000
14. Washing Machine- Purchased 2005 12,000 Whirlpool:
15. Two Iron Buckets: Purchased 1992 1,000
16. Water Cooler: Purchased 1998 1,000
17. 2 Nokia Mobile Purchased 2009 11,000 Phones:
18. Maruthi-800: Purchased 1999 1,95,000
19. 13 Gold Rings: Gifted/ 1992 10,000 Purchased
20. 20 pair of Ear Gifted/ 1992-93 to 10,000 Studs (Shown as Purchased till date Bar Studs in the Charge Sheet.):
21. 1 Gold Chain-15 Purchased 2007 15,000 Gms.:
61 [Spl.C.C.112/2012-J]
22. 1 Gold Chain-10 Purchased 1998 5,000 Gms.:
23. 1 Gold Chain-3 Purchased 2001 2,000 Gms.:
24. 5 Gold Pendants-9 Gifted/ 1996-2001 4,000 Gms.: Purchased
25. 1 Gold Ring-5 Purchased 2003 2,500 Gms.:
26. 3 Silver Glasses- Purchased 1994 20020 Gms.:
27. 5 Pair of Silver Purchased 1993-2000 500 Anklets-200 Gms.
(Shown as Articles in the Charge Sheet.):
28. 2 Silver Bowls-50 Purchased 1993 200Gms.:
29. Handi-Cam-Sony: Purchased 2004 20,000
30. Nikon Make Purchased 2000 5,000 Camera-1:
31. Cash: 53,180 Total: 4,84,080 Except to an extent of Articles worth Rs.32,000/-, the Accused-1 and 2 have not disputed the said contention of the Complainant. In Page-10 of Annexure-A to the Written Arguments filed by the Accused-1 and 2, the Accused-1 and 2 have disputed the claim of the Complainant to an extent of Rs.32,000/- only so far as Item No.2-Sony Bravia LCD 32', Item No.11-Samsung Microwave Oven, Item No.17-Nokia Mobile Phone and Item No.21-1 Gold Chain- 15 Gms., only.
2.2.1: Sony Bravia LCD 32'
69. According to the Complainant and contents of Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4, as per the 62 [Spl.C.C.112/2012-J] information furnished by the Accused-1 and 2 during the Search and Inventory, Sony Bravia LCD 32' i.e., Item No.2 was purchased in the year 2008 for Rs.47,000/-. But, according to the Accused-1 and 2, the said LCD was purchased for Rs.44,900/- only. In support of their contention, along with their Written Statement filed under Section 243(1) of the Cr.P.C., the Accused-1 and 2 have produced Copy of Receipt dated 10.08.2008 issued by M/s.Adishwar India Ltd., as per Annexure-'A-37'. This document shows that the said LCD was purchased in the name of the Accused-2 for Rs.44,900/- only. The learned Public Prosecutor submitted during the course of arguments that the said value of that LCD is mentioned in Ex.P.1 and Ex.P.4 as Rs.47,000/- on the information given by the Accused-1 and 2 during Search and Inventory and that at that time or even subsequently, they did not produce any Receipt showing actual purchase value. She further submitted fairly that as the Accused-1 and 2 have now produced Receipt along with their Statement filed under Section 243(1) of the Cr.P.C., showing its actual price, the same may be accepted. On considering this fair submission of the learned Public Prosecutor and also the contents of Annexure-'A-37', it has to be accepted that the cost of that LCD is Rs.44,900/- and not Rs.47,000/- as contended by the Complainant. Accordingly, it is held that cost of Sony Bravia LCD 32' is Rs.44,900/- only.
63 [Spl.C.C.112/2012-J] 2.2.2: Microwave Oven
70. According to the Complainant, during Search and Inventory made by P.W.41 and P.W.43 and as per Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4, the Accused-1 and 2 possessed a Samsung Microwave Oven purchased for Rs.9,000/- in the year 2006. P.W.1 & P.W.2 are the Attesters to Ex.P.1 and P.W.2 & P.W.6 are the Attesters to Ex.P.4. In his evidence, P.W.1 has deposed that, during Search and Inventory, the Accused-2 was asked to value the Household Articles and that also she was asked about the year in which those Articles were acquired and that on the information given by the Accused-2, particulars of those Articles were mentioned in the Inventory. In his Cross-examination, made on behalf of the Accused-1 and 2, P.W.2 has stated that during Search, P.W.41 and P.W. 43 enquired about the value of the Articles. In his evidence, P.W.6 has deposed that in respect of Search and Inventory made as per Ex.P.4, value of the Items was given by the Accused-1. In their Cross-examination, P.W.41 and P.W.43 have denied the contention of the Accused-1 and 2 that value of the Articles and mode of acquisition mentioned in Ex.P.1 and Ex.P.4 were not given by the Accused-1 and 2 and that those particulars were mentioned as per the whims and fancies of P.W.41 and P.W.43. Contents of Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4 show that on the information given by the Accused-
2, value of the Articles and the details of acquisition of those Articles were mentioned in Ex.P.1 and that those 64 [Spl.C.C.112/2012-J] particulars have been mentioned in Ex.P.4 as per the information given by the Accused-1 and 2. As such, contents of Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4 corroborate the evidence of P.W.1, P.W.2, P.W.6, P.W.41 and P.W.43. These witnesses have stood well in the test of Cross-examination and there is no reason to disbelieve their evidence.
71. The learned Advocate appearing on behalf of the Accused-1 and 2 contended that independent witnesses from the locality, where the Search was made, were not secured and that as P.W.1, P.W.2 and P.W.6 are official witnesses, their evidence cannot be believed and that as such, Search and Inventory are illegal. Though securing of independent and respectable inhabitants of the locality, in which the place to be searched is situated, is directory as per Section 100(4) of the Cr.P.C., it is not a mandatory provision. It is true that P.W.1, P.W.2 and P.W.6 are not from the locality, where the Search was made. But, they are responsible and respectable Bank Officers and they are not the officials of the Complainant. They are unconnected to the Complainant or the Accused-1 and 2 in any manner. They are not interested witnesses. As such, they are independent witnesses. There is nothing in their evidence to disbelieve their veracity. On the other hand, their evidence is well supported by the contents of Ex.P.1 and Ex.P.4 as well as the evidence of P.W.41 and P.W.43. As such, it is not fit to accept the bare argument of the learned Advocate appearing on behalf of the Accused-1 65 [Spl.C.C.112/2012-J] and 2 that the evidence of P.W.1, P.W.2 and P.W.6 is not believable and that the Search and Inventory are illegal.
72. By relying upon Annexure-'A-37' in respect of LCD, referred to in the Head-2.2.1., the Accused-1 and 2 have contended that though the Receipt shows that the value of the LCD was Rs.44,900/- only, it is mentioned by P.W.41 and P.W.43 in Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4 as Rs.47,000/-, which itself shows that value of the Articles are mentioned in Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4 as per the whims and fancies of P.W.41 and P.W.43. As observed above, as the Accused-1 and 2 did not produce the Receipt-Annexure-'A-37' either at the time of Inventory or subsequently and as they produced the same along with their Written Statement under Section 243(1) of the Cr.P.C., and as the learned Public Prosecutor fairly submitted to accept the value given in Annexure-'A- 37', this Court has held that the cost of LCD is Rs.44,900/- only and not Rs.47,000/- as claimed by the Complainant. It is pertinent to observe here that in Ex.P.37, which is the Reply dated 17.02.2011 filed by the Accused-1 to the Complainant through his Superior, he has mentioned that the said LCD was purchased for Rs.43,000/- in the year 2008 by the Accused-2. This Statement of the Accused-1 is also inconsistent with Receipt-Annexure-'A-37'. This circumstance shows that the Accused-1 and 2 are not consistent in their stand, which makes it difficult to accept their contention. Hence, it is not proper to disbelieve the 66 [Spl.C.C.112/2012-J] evidence of P.W.1, P.W.2, P.W.6, P.W.41 and P.W.43 and also contents of Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4 only on the basis of oral say of the Accused-1 and 2 and also on the basis of Annexure-'A-37', which was produced at a later stage. The Accused-1 and 2 have not placed any acceptable evidence to rebut the said evidence available on behalf of the Complainant and to substantiate their contention that at the whims and fancies of P.W.41 and P.W.43, value of the Household Articles and details of the acquisition of those Articles are mentioned in Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4. Hence, it has to be inferred that as per the information given by the Accused- 1 and 2 during Search and Inventory, value of the Articles and mode of acquisition are mentioned in Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4.
73. In Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4, it is stated that the said Samsung Microwave Oven was purchased for Rs.9,000/- in the year 2006. But, according to the Accused-1 and 2, the said Oven was not purchased, but, it was given as Gift to the Accused-1 by Maternal Aunt of the Accused-1, who is residing in Canada. But, the Accused-1 and 2 have not produced any supporting evidence in this regard. On the other hand, in Ex.P.37, the Accused-1 has stated that the said Microwave Oven was purchased from M/s.Adarsh Electronics, Bengaluru, for Rs.9,000/- out of Gift and Savings of the Accused-2. It is not stated in this document that the said Oven was gifted by the Maternal Aunt of the Accused-1 to the Accused-2.
67 [Spl.C.C.112/2012-J] As such, the said Statement in Ex.P.37 of the Accused-1 is contrary to and inconsistent with his contention in this case. Even otherwise, as the cost of Oven exceeds Rs.7,000/-, if at all the Accused-2 got that Oven by way of Gift, the Accused-1 would have intimated the same to the Government as per Rule-13(2) of the Rules. But, there is nothing on behalf of the Accused-1 and 2 to show about such intimation. Under these circumstances and on considering the contents of Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4 and in the absence of any evidence to the contrary on behalf of the Accused-1 and 2, it is impossible to accept the bare contention of the Accused-1 and 2 that the said Oven was not purchased, but, it was the Gift to the Accused-2. Hence, it is held that the Samsung Microwave Oven was purchased by the Accused-1 for Rs.9,000/- in the year 2006.
2.2.3: Nokia Mobile Phones
74. According to the Complainant and contents of Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4, the Accused-1 and 2 possessed 2 Mobile Phones worth Rs.11,000/- purchased in the year 2009. But, the Accused-1 and 2 have disputed the value of the said Mobile Phones. According to them, the said Mobile Phones were not new Phones, when they were purchased, but, they were second hand purchase at a price of Rs.5,000/- only and the Complainant has adopted a price higher by Rs.6,000/-. Except this bare contention, there is no supporting evidence on behalf of the Accused-1 68 [Spl.C.C.112/2012-J] and 2. In Ex.D.7, which is the Reply filed by the Complainant on 04.10.2011, he has not said anything about the said Mobile Phones and their value and also about second hand purchase. Even in Ex.P.37, the Accused-1 has not whispered about the same. But, only in their Written Statement filed under Section 243(1) of the Cr.P.C., and also arguments, the Accused-1 and 2 have contended that those Mobile Phones were purchased for a second hand price of Rs.5,000/-. As such, in the absence of supporting evidence and in view of the contents of Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4, it is not possible to accept the bare contention of the Accused-1 and 2 about the value of those Mobile Phones. On the other hand, on considering the value given by the Accused-1 and 2 during Inventory as per Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4 and in the absence of anything contrary on behalf of the Accused-1 and 2, it has to be inferred that cost of those Mobile Phones is Rs.11,000/-. Accordingly, it is held that the Accused-1 and 2 possessed 2 Mobile Phones worth Rs.11,000/- at the end of the Check Period having purchased the same in the year 2009.
2.2.4: Gold Chain-15 Grams
75. According to the Complainant and contents of Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4, the Accused-1 and 2 possessed a Gold Chain weighing 15 grams purchased in the year 2007 for Rs.15,000/-. But, according to the Accused-1 and 2, the said Gold Chain was not acquired by 69 [Spl.C.C.112/2012-J] purchase, but, it was acquired by way of exchange with old ornaments. In Ex.P.37, the Accused-1 and 2 have not whispered anything about acquisition of said Gold Chain by way of exchange of old ornaments. However, in Ex.D.7, the Accused-1 has contended that the said Gold Chain was exchanged with the old Chain gifted in marriage. But, details of the said exchange and supporting documents are not produced. In the absence of such supporting evidence and in view of the contents of Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4, it is not fit to accept the bare contention of the Accused-1 and 2 that the said Chain was acquired by way of exchange of old ornaments. On the other hand, on considering the value mentioned in Ex.P.1, Ex.P.1(a), Ex.P.1(b) and Ex.P.4 on the information given by the Accused-1 and 2 during Inventory and in the absence of supporting evidence, it has to be inferred that the said Gold Chain was purchased for Rs.15,000/- in the year 2007. Accordingly, it is held that the Accused-1 and 2 possessed a Gold Chain worth Rs.15,000/- at the end of the Check Period having purchased the same in the year 2007.
76. From the above discussion and on the available facts and evidence, it is clear that the Accused-1 and 2 failed to prove their contention regarding Item-11, Item- 17 and Item-21. However, they have proved their contention regarding Item-2 i.e., Sony Bravia LCD 32', that the cost of that Item is Rs.44,900/- and not Rs.47,000/-. As such, they are entitled for deduction to an 70 [Spl.C.C.112/2012-J] extent of Rs.2,100/- in the claim of Rs.4,84,080/- made by the Complainant in respect of Movable Properties available at the end of the Check Period. For all these reasons, it is held that the Accused-1 and 2 possessed Movable Properties worth Rs.4,81,980/- (Rs.4,84,080 - Rs.2,100) at the end of the Check Period.
2.3: Fixed Deposits, Bonds, Mutual Funds Etc.
77. As per the Charge Sheet, at the end of the Check Period, the Accused-1 and 2 possessed Fixed Deposits, Bonds, Mutual Funds etc., worth Rs.4,23,159/-. However, during the course of arguments, the learned Public Prosecutor restricted the claim of the Complainant to Rs.4,22,905/- under this Head. The details of the said Assets are as under:-
Sl. Standing in Amount
Details
No. the name of (in Rs.)
1. Reliance Mutual Fund: Accused-2. 10,000
2. HDFC Prudence Fund: Accused-2. 20,000
3. HDFC Long Term Accused-1. 10,000
Advantage Fund:
4. Reliance Vision Fund: Accused-2. 20,000
5. SBI Mutual Fund: Accused-2. 20,000
6. SBI Mutual Fund: Accused-1. 20,000
7. FD at ICICI Bank, Accused-1. 1,61,395
HSR Layout:
8. FD at ICICI Bank, Accused-1. 54,994
Koramangala Branch: (As per Charge
Sheet)
71 [Spl.C.C.112/2012-J]
54,740
(As per Written
Arguments of the
Public Prosecutor)
9. FD at ICICI Bank, Accused-1. 1,06,770
HSR Layout:
Total: 4,23,159
(As per Charge
Sheet)
4,22,905
(As per Written
Arguments of the
Public Prosecutor)
Contents of Ex.P.17, Ex.P.18, Ex.P.20, Ex.P.21, Ex.P.23, Ex.P.28 and Ex.P.49 fortify the contention of the Complainant. The Accused-1 and 2 have not disputed the said claim of the Complainant. On the other hand, at Page-11 of Annexure-A to their Written Arguments, they have admitted the said claim of the Complainant. In view of the said evidence placed by the Complainant as well as the admission made by the Accused-1 and 2, it is clear that the Accused-1 and 2 possessed Assets worth Rs.4,22,905/- by way of Fixed Deposits, Bonds, Mutual Funds etc., at the end of the Check Period. Accordingly, it is held that the Accused-1 and 2 possessed Assets worth Rs.4,22,905/- by way of Fixed Deposits, Bonds, Mutual Funds etc. 2.4: Bank Balances
78. As per the Charge Sheet, the Accused-1 and 2 possessed Bank Balance of Rs.11,33,170.19 in their names and in the names of their children at the end of the Check Period. During the course of arguments, the learned Public Prosecutor has restricted the said claim of the Complainant 72 [Spl.C.C.112/2012-J] to Rs.11,33,169/-. The details of the said Bank Balance are as follows:
Amount Standing
Sl. Account Number
(in Rs.) In the
No. and Bank
Name of
1. SB A/c. No.503-798520/ 76,978.85 Accused-2.
R/00353-E of Royal Bank
of Scotland:
2. SB A/c. No. 2,30,610.00 Accused-1.
035701000726 of
ICICI Bank:
3. SB A/c Standard & 9,478.80
Chartered Bank (As per Charge Accused-2.
Bangalore A/c. Sheet)
No.45610477014: 9,479.00
(As per Written
Arguments of the
Public Prosecutor)
4. SBI Nirman Bhawan SB 12,297.54 Accused-1.
A/c. No.01190037792: (As per Charge
Sheet)
12,297.00
(As per Written
Arguments of the
Public Prosecutor)
5. SBI Nirman Bhawan PPF 1,29,800.00 Son of the
A/c. No.10569780012: Accused-1 &
2.
6. SBI Nirman Bhawan PPF 1,49,223.00 Daughter of
A/c No.10569780001: the Accused-
1 & 2.
7. SBI Nirman Bhawan PPF 2,81,928.00 Accused-1.
A/c. No.10569763608:
8. SBI Nirman Bhawan PPF 1,98,120.00 Accused-2.
A/c. No.10569766519:
9. Corporation Bank A/c. 44,734.00 Accused-1.
No.001715:
Total: 11,33,170.19
(As per Charge
Sheet)
11,33,169.00
(As per Written
Arguments of the
Public Prosecutor)
73 [Spl.C.C.112/2012-J]
Contents of Ex.P.22, Ex.P.24, Ex.P.25, Ex.P.26, Ex.P.27 and Ex.P.45 fortify the contention of the Complainant. The Accused-1 and 2 have not disputed the said claim of the Complainant. On the other hand, at Page-11 of Annexure- A to their Written Arguments, they have admitted the said claim of the Complainant. In view of the said evidence placed by the Complainant as well as the admission made by the Accused-1 and 2, it is clear that the Accused-1 and 2 possessed Assets worth Rs.11,33,169/- by way of Bank Balances at the end of the Check Period. Accordingly, it is held that the Accused-1 and 2 possessed Assets worth Rs.11,33,169/- by way of Bank Balances at the end of the Check Period.
2.5: Cash Seized From The Residence Of The Accused-1 On 13.08.2010
79. According to the Complainant, on 13.08.2010, P.W.41 seized Rs.7,00,000/- from the residence of the Accused-1 during Search and Inventory. P.W.41, P.W.1 and P.W.2 have deposed the said fact. Contents of Ex.P.1, Ex.P.1(a) fortify the evidence of P.W.1, P.W.2 and P.W.41. The Accused-1 and 2 have not disputed the said seizure of Rs.7,00,000/- Cash from their residence by P.W.41. But, it is the contention of the learned Advocate appearing on behalf of the Accused-1 and 2 that the said amount should not be taken into account on the ground that Search by P.W.41 is illegal as he was not authorized to Search and that procedure contemplated for Search was not complied 74 [Spl.C.C.112/2012-J] with and that the said amount belongs to P.W.38 as he had given the same to the Accused-1 as a Temporary Measure.
80. P.W.41 has admitted in his Cross-examination that P.W.43 had given him the Search Warrant authorizing him under Section 165 of the Cr.P.C., to search the residence of the Accused-1 and that he has mentioned in Ex.P.1 that pursuant to the Endorsement made by P.W.43, he conducted the Search. P.W.43 has also deposed that he had authorized P.W.41 to conduct Search of the house of the Accused-1 in connection with the RC.12(A)/2010. As observed above, the said case in RC.12(A)/2010 is the Trap Case filed against the Accused-1. In his Cross- examination, P.W.43 has further admitted that the material that was collected in the Trap Case was got transferred to this case. Contents of Ex.P.1 show that as per the Authorization made under Section 165 of the Cr.P.C., by P.W.43, who had obtained Search Warrant from the Court, P.W.41 conducted the Search. As such, contents of Ex.P.1 fully corroborate the evidence of P.W.1, P.W.41 and P.W.43. There is nothing to disbelieve the said evidence placed by the Complainant. As P.W.41 has conducted Search in pursuance of the Authorization made by P.W.43 in accordance with the Section 165 of the Cr.P.C., it cannot be said that the Search made by P.W.41 is illegal and hence, it is not fit to accept the arguments of 75 [Spl.C.C.112/2012-J] the learned Advocate appearing on behalf of the Accused-1 and 2 in this regard.
81. As per Para-13.7 of Chapter-13 of the CBI Manual, all important exhibits should be got video-filmed and transferred to one-time write only CD/DVD and the original along with a Copy should be sealed and deposited in the Court having jurisdiction and with the permission of the Court, a Copy may be made and retained for the purpose of investigation. As per Para-13.21 of Chapter-13 of the CBI Manual, valuable Jewellery and Cash, whose identity is required to be established in the Court, must be kept in the Locker of a Nationalized Bank, which should be hired by the Branch for joint operation by the Branch SP and the Malkhana incharge of the Branch. Relying upon the said Paras, the learned Advocate appearing on behalf of the Accused-1 and 2 has contended that as these 2 directions are not complied by P.W.41 during the Search, the said Search is illegal. According to the learned Advocate appearing on behalf of the Accused-1 and 2, the said Cash of Rs.7,00,000/- seized by P.W.41 had binding Slips showing the name of the Bank, name of the City and date of sealing, which were showing that the said Cash was withdrawn from the Bank at Bilaspur. According to the learned Advocate appearing on behalf of the Accused-1 and 2, if the said Cash was got video-filmed or the said Cash was kept in the Locker of the Nationalized Bank, the Accused-1 and 2 could have proved that the said Cash was given by P.W.38 and as it is not done by P.W.41 and 76 [Spl.C.C.112/2012-J] P.W.43, it is clear that they have destroyed the evidence available on behalf of the Accused-1 and 2.
82. It is true that P.W.41 and P.W.43 did not get video-film of Exhibits seized by them and did not keep the Cash in the Locker of the Nationalized Bank as per the CBI Manual. However, it is the explanation of P.W.43 that the said Cash was deposited in the name of the Superintendent of Police in the Current Account with Vijaya Bank, Ganganagara Branch, Bengaluru, with the permission of the Court. On careful study of the said Paras-13.7 and 13.21 of Chapter-13 of the CBI Manual, it appears that the guidelines given in those Paras are only directory and not mandatory. The Accused-1 and 2 have nowhere disputed the identity of the Cash of Rs.7,00,000/- seized by P.W.41, except in the Written Statement filed by them under Section 243(1) of the Cr.P.C., and in the Written Arguments. While Cross-examining P.W.41 and P.W.43 or even P.W.1 and P.W.2, it is not at all the contention of the Accused-1 and 2 that the said Cash contained Bank Slips showing the identity of the Bank. In that Cross-examination, the Accused-1 and 2 have not at all questioned the identity of the said Cash. According to the Accused-1 and 2, P.W.38 gave the said amount to the Accused-1. It is also not his evidence that the said amount was withdrawn from the Bank at Bilaspur and that the said Cash contained Slips of that Bank. Under these circumstances, it is not possible to accept the contention of the Accused-1 and 2 that the said Search was illegal and 77 [Spl.C.C.112/2012-J] that P.W.41 and P.W.43 destroyed the evidence available on behalf of the Accused-1 and 2. If at all the said Cash was withdrawn from the Bank at Bilaspur, there is no difficulty for the Accused-1 and 2 to secure information about the same from the concerned Bank. As such, no prejudice has been caused to the Accused-1 and 2 for not complying with the guidelines of the CBI Manual during the Search.
83. According to the Accused-1 and 2, the Accused-1 was due for transfer during Summer of 2010 as per Readiness List of Transfer and Posting for the year 2010- 2011 issued in the month of February 2010 by the Directorate of CPWD, New Delhi and since their elder daughter-Miss.Harshitha was studying in 10th Standard at that time, keeping in view the welfare of their daughter, the Accused-2 decided to continue stay at Bengaluru itself for atleast 2 more years for the sake of education and future prospectus of her daughter. According to the Accused-1 and 2, the Accused-2 was planning to take House on mortgage or by purchase as a temporary measure and when she had visited her brother's (P.W.38) place at Bilaspur in the month of May 2010, she discussed the said problem and her plan with P.W.38 and at that time, P.W.38 handed over Rs.7,00,000/- to her as a temporary measure for this purpose. According to the Accused-1 and 2, when the Accused-2 was looking for a House, the present incident of Search and Seizure happened. According to the Accused-1 and 2, for visiting 78 [Spl.C.C.112/2012-J] Bilaspur in the month of May 2010 by the Accused-2 and her children, a Home Town LTC facility was availed by the Accused-1. The Accused-1 and 2 have taken all these contentions in their Written Statement. In addition to the same, they have relied upon the evidence of P.W.38, Ex.P.66, Ex.D.18 and Annexures-'A-6.1' & 'A-6.2' to their Written Statement.
84. Annexures-'A-6.1' & 'A-6.2' indicate that the Accused-1 was due for transfer during the year 2010-2011 as he had completed 4 years of service by that time. As per those documents, the Accused-1 had to furnish his choice of place on or before 23.02.2010. However, there is nothing to show that the Accused-1 was transferred in the month of June 2010 or in the year 2010.
85. Ex.D.18 consists of an Office Order dated 12.05.2010 regarding sanction of Leave Encashment amount of Rs.20,000/- to the Accused-1 enabling the Accused-2 and her children to visit Bilaspur availing HLTC for the block period 2010-2011. Apart from that, there is evidence of P.W.38 to the effect that the Accused-2 and her children had visited Bilaspur in the month of May 2010. As such, probabilities are in favour of the Accused-1 and 2 to believe that the Accused-2 and her children visited Bilaspur in the month of May 2010.
86. P.W.38 has deposed that in the month of May, 2010, when his sister i.e., the Accused-2 had come to 79 [Spl.C.C.112/2012-J] Bilaspur, he had given Cash of Rs.7,00,000/- to her as a temporary measure as the Accused-2 wanted to take a house in Bengaluru on mortgage/purchase. He has deposed that the said amount of Rs.7,00,000/- is not reflected in his IT Returns. It is his explanation that as the said amount did not belong to him and that as it was the amount of the Company for which he was doing Real Estate Business as an Agent, it is not mentioned in the IT Returns about that amount. As per the said evidence of P.W.38, he gave Rs.7,00,000/- out of the amount belonging to his Company, which was with him. There is nothing to show that P.W.38 possessed so much of amount with him at that time. It is not explained by P.W.38 as to who had given that amount to him on behalf of his Company. None from his Company has come forward to support his version. It is not his evidence that he repaid that amount to his Company. As observed above, according to the Accused-1 and 2, the said Cash contained Bank Slips of Bilaspur Bank. As such, according to the Accused-1 and 2, the said amount was withdrawn from the Bank at Bilaspur. But, it is not explained as to from which Bank at Bilaspur the said amount was withdrawn. P.W.38 is the best person to explain this fact. But, he has not whispered anything about the same. Ex.P.66 is Statement of Account pertaining to the Account of P.W.38 with the ICICI Bank, Bilaspur. This document does not show that P.W.38 possessed Rs.7,00,000/- in the month of May, 2010 in his Account.
80 [Spl.C.C.112/2012-J]
87. According to the Accused-1 and 2 and P.W.38, said amount of Rs.7,00,000/- was given by P.W.38 to the Accused-2 as a temporary measure. Receiving of such an amount as a temporary measure amounts to borrowing of money temporarily or temporary loan from a relative within the meaning of Rule 16 of the Rules. As per Rule- 16 of the Rules, a Government Servant shall not borrow money, either himself or through any member of his family, except with a previous sanction of the Government. However, a Government Servant may accept a small amount free of interest as a purely temporary loan from a relative. Though the word- 'small amount' is not defined in the Rules, keeping in view the Rule 18 of the Rules, it has to be inferred that the said 'small amount' means amount not exceeding Rs.20,000/- in the case of the Accused-1 as he is a Group 'A' Officer. As Rs.7,00,000/- is far more than Rs.20,000/-, it cannot be said as 'small amount' and as per Rule-16 of the Rules, he had to take prior permission from the Government for borrowing such huge amount. But, it is not even the contention of the Accused-1 and 2 that the Accused-1 has taken such prior permission from the Government for borrowing Rs.7,00,000/-. In fact, he has not even intimated to the Prescribed Authority about borrowing of such huge amount. If at all, the Accused-2 had borrowed amount from P.W.38, the Accused-1 would have intimated the same to the Prescribed Authority. As he has not done so, it has to be inferred that no such transaction took place 81 [Spl.C.C.112/2012-J] between P.W.38 and the Accused-2 as contended by the Accused-1 and 2.
88. According to the Accused-1 and 2, as the Accused-1 was due for transfer in the Summer of 2010 i.e., in the months of May-June 2010, the Accused-2 received the said amount from P.W.38 for purchasing the House or taking a House on lease or rent. But, the Accused-1 was not transferred in the month of May-June 2010 or subsequently in the year 2010. As such, there was no necessity at all to the Accused-1 and 2 to purchase a House or take a House on lease or rent in the year 2010 and to keep the said amount of Rs.7,00,000/- with them till August 2010. If at all the Accused-2 had received Rs.7,00,000/- from P.W.38 as a temporary measure and as the Accused-1 was not transferred in the month of May- June of 2010 or till August 2010, the Accused-2 should have returned the said amount of Rs.7,00,000/- to P.W.38. But, she has not done so. There is no explanation from the Accused-1 and 2 in this regard. In the absence of such an explanation, the only inference that could be drawn under the circumstances is that the Accused-2 had not received Rs.7,00,000/- from P.W.38 as contended by the Accused-1 and 2.
89. As admitted by the Accused-1 and 2 themselves in respect of Fixed Deposits, Bonds, Mutual Funds, Bank Balances etc., referred to in the Heads-'2.3 & 2.4', the Accused-1 and 2 had around Rs.16,00,000/- with them in 82 [Spl.C.C.112/2012-J] the year 2010. As they possessed such a huge amount with them, there was no necessity at all to the Accused-2 to take Rs.7,00,000/- from P.W.38 as a temporary measure. There is no explanation from the Accused-1 and 2 in this regard also. This circumstance also goes against the Accused-1 and 2.
90. Though P.W.38 as well as the Accused-1 and 2 have contended that the said amount of Rs.7,00,000/- seized by P.W.41 belongs to P.W.38, so far P.W.38 has not raised any claim before this Court in respect of that amount. If at all the said amount belonged to P.W.38, he would not have kept quiet without claiming such a huge amount from the Court. This circumstance also goes strongly against the Accused-1 and 2.
91. Under all the above circumstances, it is difficult to believe the evidence of P.W.38, who being the brother of the Accused-2 is an interested witness, and the contention of the Accused-1 and 2 that P.W.38 gave Rs.7,00,000/- to the Accused-2 in the month of May, 2010. For all these reasons, it is clear that the Accused-1 and 2 have failed to show that Rs.7,00,000/- seized by P.W.41 on 13.08.2010 belongs to P.W.38 and that he had given the said amount to the Accused-2 as a temporary measure. Hence, it is held that said Rs.7,00,000/- does not belong to P.W.38 and that it was possessed by the Accused-1 and 2.
83 [Spl.C.C.112/2012-J] 2.6: Balance In The Bank Account Of The Accused-2 At Bilaspur
92. According to the Complainant, there was balance of Rs.13,039/- in the S.B.Account No.3950 at Punjab & Sind Bank, Bilaspur in the name of the Accused-2 as on 09.08.2010 i.e., at the end of the Check Period. Ex.P.63 is Statement of Account pertaining to the said S.B. Account. Contents of that document support the contention of the Complainant. The Accused-1 and 2 have not disputed the said claim of the Complainant. On the other hand, in Page-17 of Annexure to their Written Arguments, they have admitted the said claim of the Complainant. As such, it is held that the Accused-2 possessed Rs.13,039/- in her S.B. Account No.3950 at Punjab & Sind Bank, Bilaspur at the end of the Check Period.
2.7: FINAL CALCULATION OF STATEMENT-B
93. In view of the above findings, Final Calculation of Assets held by the Accused-1 and 2 at the end of the Check Period is as under:
Sl. Particulars Amount
No. (in Rs.)
1. Immovable Property: 27,44,557
2. Movable Properties including
Vehicle: 4,81,980
3. Fixed Deposits, Bonds, Mutual
Funds etc.: 4,22,905
4. Bank Balances: 11,33,169
84 [Spl.C.C.112/2012-J]
5. Cash Seized: 7,00,000
6. Balance in the Bank Account of the 13,039
Accused-2:
Total: 54,95,650
Thus, it is clear that at the end of the Check Period, the Accused-1 and 2 possessed Assets worth Rs.54,95,650/-. Hence, it is held that the value of the Assets possessed by the Accused-1 and 2 at the end of the Check Period is Rs.54,95,650/-.
3. RECEIPTS AND INCOME DURING THE CHECK PERIOD (STATEMENT-C)
94. As per Charge Sheet, at Pages-16 and 17, the Accused-1 and 2 had Receipts and Income of Rs.49,01,343/- out of 16 Items during the Check Period. However, during the course of arguments, the learned Public Prosecutor admitted that during the Check Period, the Accused-1 and 2 had Receipts and Income of Rs.49,29,825/-. At Pages-8 and 9 of the DA Calculation Table filed by the learned Public Prosecutor, the said fact has been admitted. The details of the said Receipts and Income are as under:
Sl. Details of Income Amount
No. (In Rs.)
1. Net Salary of the Accused-1: 18,44,303
2. PF Withdrawal: 3,25,000
3. Rental Income: 5,83,300
85 [Spl.C.C.112/2012-J]
4. Housing Loan from ICICI bank, 8,00,000
Vadodara:
5. Interest received during the 2,77,344
Check Period: (As per Charge Sheet.)
2,83,152
(As per Written Arguments
& DA Calculation Table
filed by the learned Public
Prosecutor.)
6. Bonds Redemption: 2,46,472
(As per Charge Sheet.)
2,46,470
(As per Written Arguments
& DA Calculation Table
filed by the learned Public
Prosecutor.)
7. Loan from LIC: 89,000
8. LIC Maturity Amount: 44,203
9. Refund from School: 30,000
10. Refund from School: 2,575
11. Refund from School: 15,500
12. Gift Received by the Accused-2 2,00,000
from her Parents:
13. ICIC Prudential Withdrawal 1,55,000
Amount:
14. Interest Accrued in the Account
of the Accused-2 at Punjab & 8,655
Sind Bank, Bilaspur:
15. Payment made by Sri.Mohinder 1,63,274
Singh Sandhu:
16. Amount paid by Sri.Rajendra
Singh Wadhwa/Smt.Seela 1,16,717
Wadhwa:
Total : 49,01,343
(as per Charge Sheet)
17. LTC (10 days Leave Encashment 22,676
made during 2010):
Total: 49,29,825
(As per Written Arguments & DA
Calculation Table filed by the learned Public Prosecutor.) 86 [Spl.C.C.112/2012-J] The Accused-1 and 2 have not disputed the said claim of the Complainant, except in respect of Items-1, 3 and 5. On the other hand, at Pages-20, 22, 23, 24, 25 and 26 of Annexure-A to their Written Arguments, the Accused-1 and 2 have admitted the said claim of the Complainant, however, except in respect of Items-1, 3 and 5. As such, now the dispute is in respect of Items-1, 3 and 5 only.
3.1: Net Salary Of The Accused-1
95. According to the Complainant, during the Check Period, the Accused-1 received Net Salary of Rs.18,44,303/- from August 2005 to July 2010. P.W.15- Sri.M.Balachandran was working as Executive Engineer at CPWD, Kendriya Sadana, Bengaluru. He has deposed that the Accused-1 received Net Salary of Rs.18,44,303/- from 01.08.2005 to 30.08.2010 and he has produced Salary Particulars as per Ex.P.34 and Ex.P.35. Contents of those documents support the version of P.W.15. The Accused-1 and 2 have not disputed the said claim of the Complainant. In fact, at Pages-18 and 19 of Annexure-'A' to their Written Arguments, they have admitted the said fact.
96. However, it is the contention of the Accused-1 & 2 that the Accused-1 received salary of Rs.15,966/- for the month of July 2005 in the month of August 2005 i.e., on 02.08.2005, which has been left out by the Complainant and that as such, the said amount of Rs.15,966/- has to be included as Salary Income during the Check Period. In 87 [Spl.C.C.112/2012-J] support of their contention, the Accused-1 and 2 have relied upon the Statement of Account issued by ICICI Bank, HSR Layout Branch, Bengaluru, relating to the Salary Account of the Accused-1 as per Ex.P.23 and Salary Details issued by the Executive Engineer, CPWD, Vadodara as per Ex.D.19. Annexure-'A-32.5', referred to by the Accused-1 and 2 in their Written Statement filed under Section 243(1) of the Cr.P.C., is the Copy of Ex.P.23. All these documents show that the Accused-1 received salary of Rs.15,966/- for the month of July 2005 in the month of August 2005 i.e., on 02.08.2005. As such, contents of Ex.P.23 and Ex.D.19 fully support the contention of the Accused-1 and 2. As the Accused-1 received the said income during the Check Period, the Complainant ought to have included the said amount as income during the Check Period. But, he has not done so. Hence, it is just and proper to include the said amount of Rs.15,966/- as receipt of salary income of the Accused-1 during the Check Period.
97. It is also the contention of the Accused-1 and 2 that Honorarium and other remuneration amount of Rs.3,150/- has been left out by the Complainant. In support of this contention, the Accused-1 and 2 have relied upon Ex.D.21 and Annexure-'A-33.4' filed along with Written Statement under Section 243(1) of the Cr.P.C. Annexure-'A-33.4' is the Copy of the Ex.D.21. Ex.D.21 is the Salary Details Extract for the period from 01.09.2006 to 31.08.2010 pertaining to the Accused-1. Office of the 88 [Spl.C.C.112/2012-J] Superintending Engineer, Bengaluru Central Circle, CPWD, Bengaluru has issued this document. As per this document, in the month of March 2010, the Accused-1 has received Honorarium of Rs.3,150/-. There is no reason to disbelieve this document. As such, it is clear that the Accused-1 received Rs.3,150/- as Honorarium in the month of March 2010. But, in Ex.P.34 and Ex.P.35 relied upon by the Complainant, the said amount is not included. As such, it appears that the Complainant has not considered this amount as income. As the Accused-1 has received the said amount during the Check Period in the month of March 2010, it is necessary to include the said amount also to the receipt of Salary Income of the Accused-1 during the Check Period.
98. Thus, it is clear that though the Accused-1 received Rs.15,966/- and Rs.3,150/- i.e., in all Rs.19,116/- in addition to Rs.18,44,303/- during the Check Period, the Complainant has not considered the said income. On considering the said additional income of Rs.19,116/-, the Salary Income of the Accused-1 during the Check Period amounts to Rs.18,63,419/- (Rs.18,44,303/- + Rs.19,116/-). Hence, it is held that Net Salary Income of the Accused-1 during the Check Period is Rs.18,63,419/-.
3.2: Rental Income
99. It is not in dispute that the Flat at Dwaraka, New Delhi stands in the joint names of the Accused-1 and 2.
89 [Spl.C.C.112/2012-J] P.W.14-Sri.P.R.Rajesh, the General Manager (HR) of the Indraprasta Gas Limited has deposed that from September 2006 to January 2008, the said Flat was leased to Indraprasta Gas Limited and that its employee-Sri.Sanjeev Ranjan was in occupation of that Flat during that period and that inclusive of advance amount of Rs.24,000/-, Indraprasta Gas Limited had paid Rs.1,95,000/- as rent during that period and that said Sri.Sanjeev Ranjan, though resigned to his job in the Company in the month of January 2008, he was in that Flat as a Tenant till March 2008 and that therefore, the said advance of Rs.24,000/- was adjusted towards 2 months rent. Ex.P.29 is the File consisting of Lease Agreements and Details of Rent paid to the Accused-1 and 2 in respect of that Flat. Contents of this document corroborates the evidence of P.W.14.
100. It is not in dispute that the said Flat was given on Lease to Power Grid Corporation from 15.09.2008 till the end of the Check Period. P.W.21-Sri.Narendra Kumar is the Manager of Power Grid Corporation. He has deposed that on behalf of the Power Grid Corporation, he was occupying the said Flat during the said period. Ex.P.46 is the File consisting of Copies of Lease Deed and Details of Rent paid to the Accused-1 and 2 in respect of the said Flat. As per the evidence of P.W.21 and contents of Ex.P.46, the Power Grid Corporation has paid rent of Rs.3,88,300/- from 15.09.2008 till August 2010.
101. Thus, as per the evidence of P.W.14 and P.W.21 as well as Ex.P.29 and Ex.P.46, total rent received 90 [Spl.C.C.112/2012-J] by the Accused-1 and 2 in respect of the said Flat during the Check Period is Rs.5,83,300/-. The Accused-1 and 2 have not disputed this claim of the Complainant. On the other hand, at Pages-20 and 21 of Annexure-A to their Written Arguments, they have admitted the said claim of the Complainant.
102. However, it is the contention of the Accused-1 and 2 that an amount of Rs.54,000/- received as rent for the period from May 2008 to August 2008 has been left out by the Complainant and that as such, the said amount of Rs.54,000/- has to be taken into consideration as Rental Income during the Check Period apart from Rs.5,83,300/-. According to the Accused-1 and 2, after Indraprasta Gas Limited Company i.e., Sri.Sanjeev Ranjan vacated the Flat in the month of March 2008, the said Flat was given on temporary lease for a period of 4 months from May 2008 to August 2008 to a friend of one relative at a rent of Rs.13,500/- p.m. In Ex.D.7 also, while giving his explanation to P.W.43, the Accused-1 has taken such a contention. In support of their contention, the Accused-1 and 2 have relied upon the evidence of D.W.1, P.W.42 and Ex.P.10, Ex.P.22, Ex.P.45, Ex.D.8 and Ex.D.10. Ex.D.10 consists of Copies of Ex.P.10, Ex.P.22 and Ex.P.45.
103. Though the Accused-1 and 2 have contended that they had leased the said Flat for a temporary period of 4 months to a friend of their relative, the details of the said relative or his friend are not given. They have not 91 [Spl.C.C.112/2012-J] produced any document showing the said temporary Lease and receipt of rent in respect of that Lease. Neither the said relative of the Accused-1 and 2 nor the said Tenant has come forward to give evidence in support of the Accused-1 and 2. In the absence of such evidence, it is difficult to accept the bare statement of the Accused-1 and 2 about the said temporary Lease.
104. According to the Accused-1 and 2, out of the rent received for the months of May & June 2008, Rs.15,000/- has been credited to the Bank Account of the Accused-1 and Rs.12,000/- has been credited to the Bank Account of the Accused-2 on 29.07.2008. According to the Accused-1 and 2, out of the rent collected for the months of July and August 2008, Rs.15,000/- has been credited to the Account of the Accused-1 and Rs.12,000/- has been credited to the Account of the Accused-2 on 04.02.2009. Ex.P.22 is the Statement of Account issued by ICICI Bank relating to the Account of the Accused-1. Contents of this document show that on 29.7.2008 and 4.2.2009 Cash of Rs.15,000/- each have been deposited to that Account. Ex.P.45 is the Statement of Account issued by Royal Bank of Scotland pertaining to the Account of the Accused-2. Contents of this document show that on 29.7.2008 and 4.2.2009, Cash of Rs.12,000/- each have been deposited to that Account. However, entries in these documents do not in any way show that the said deposited amounts relate to the rents received for the period from May 2008 to August 2008. The alleged rents received in the months 92 [Spl.C.C.112/2012-J] of May and June 2008 have been deposited on 29.07.2008 and the alleged rents received in the months of July and August 2008 have been deposited in the month of February 2009, according to the Accused-1 and 2. If at all the Accused-1 and 2 had received rents in the months of May, June, July and August 2008 as contended by them, they would have deposited the same within few days from the date of receipt of the rents. But, it is not done so. There is no explanation from the Accused-1 and 2 about the said delay in deposit. This circumstance creates a serious doubt in the claim made by the Accused-1 and 2.
105. The Accused-1 and 2 have strongly relied upon the entries made in the Note Book-Ex.P.10, which was seized by P.W.43 on 16.12.2010, to substantiate their contention. According to the Accused-1 and 2, details of rent receipts, payment of Municipal Tax, other related expenses and information etc., pertaining to the said Flat have been entered in that Note Book. This Book contains entries in 5 to 6 Pages about details of the alleged rent received in respect of the said Flat from 10.09.2006 till November 2010. On considering the nature and style of entries made in this document, it does not appear that the said entries are made in a regular course as and when the Accused-1 and 2 received rent. The said entries do not show about payment of Tax and other related expenses in respect of the said Flat as contended by the Accused-1 and
2. In Page-4 of this Book, entries in respect of Lease from May 2008 to August 2008 are made and there are entries 93 [Spl.C.C.112/2012-J] in that Page about receiving Rs.54,000/- as rent and depositing the said amount in the Accounts of the Accused- 1 and 2. However, about Leasing of Flat during that period, the following entries are made:
"From 22.04.08 Rent fixed for Rs.13,500/- per month. No advance taken being relative of Popli uncle and as required by them for short duration of 4 - 5 months only. Rent to be collected by Popli uncle."
Normally, in the Note Book, entry will be made only regarding receiving of rent. Normally, if advance is received, an entry will be made to that effect also. If no such advance is received, it will not be entered in the Note Book to the effect that no such advance is received. Entry will not be made describing that Lease is for short duration of some months and that who has to collect rent even before starting of collecting rent. But, in the said entry made in Page-4, referred to above, it is stated that no advance was taken as the Tenant was a relative of Popli uncle, Lease was only for short duration of 4 to 5 months and that rent has to be collected by Popli uncle. In that Book, it is not mentioned about the name of the said Tenant, who is said to be a relative of Popli uncle, though the name of the Tenant is very important and material fact. Thus, it appears that the entries are not made in natural course of events and that to create evidence, the said entries are made. As observed above, said Popli uncle 94 [Spl.C.C.112/2012-J] or his relative, who had taken the Flat on Lease, has not come forward to give evidence. It is pertinent to observe here that P.W.41 conducted Search and Inventory in the House of the Accused-1 and 2 on 13.08.2010 and that at that time, he seized Cash of Rs.7,00,000/- from that House on that day. As such, it appears that anticipating this case to be filed for the offence of Disproportionate Assets, the Accused-1 might have prepared Ex.P.10 to suit his convenience. Hence, it is not safe to rely upon the entries in Ex.P.10 to appreciate the contention of the Accused-1 and 2.
106. The Accused-1 and 2 have strongly relied upon the evidence of D.W.1 and Ex.D.8 and Ex.D.8(a) in support of their contention about receipt of the said rent of Rs.54,000/- by contending that receipt of the said rent has been shown in the Income Tax Returns filed by the Accused-1 and 2 for the year 2008-2009 (Assessment Year 2009-2010). Ex.D.8 consists of Xerox Copy of Income Tax Returns said to have been filed by the Accused-2 for the Assessment Years 2006-2007 to 2011-2012. As the learned Public Prosecutor opposed the production of those Copies, the Accused-1 and 2 subsequently produced Ex.D.8(a), which is said to be the original of Ex.D.8. Page- 7 of Ex.D.8 and Ex.D.8(a) are the Acknowledgements of Income Tax Returns for the Assessment Years 2009-2010. Page-8 of Ex.D.8 and Ex.D.8(a) are the sheets containing Computation of Income for the said Assessment Year. Page-7 of Ex.D.8 and Ex.D.8(a) do not show anything 95 [Spl.C.C.112/2012-J] about Income from House Property by way of rent or otherwise. However, in Page-8 of Ex.D.8 and Ex.D.8(a), it is stated that the Accused-2 received Income of Rs.63,600/- from Delhi Flat in the year 2008-2009 i.e., for the Assessment Year 2009-2010. These Pages-8 of Ex.D.8 and Ex.D.8(a) are not the originals or Certified Copies of the originals issued by the Income Tax Authorities. Though, according to the Accused-1 and 2, Page-8 of Ex.D.8 is the Xerox Copy of Page-8 of Ex.D.8(a), contents of these 2 Pages differ from each other. Though the Page- 8 of Ex.D.8 contains signature of the Accused-2, that of Ex.D.8(a) does not contain the same. In Page-8 of Ex.D.8 under the Head of 'Other Sources', the 2nd Item is shown as 'Income from Miscellaneous Receipts', whereas in Page- 8 of Ex.D.8, the said Item is shown as 'Income from Miscellaneous Job Works'. Under these circumstances, a serious doubt arises about the genuineness of Page-8 of Ex.D.8 and Ex.D.8(a).
107. On calculation on the basis of Ex.P.29 and Ex.P.46 and the evidence given by P.W.14 and P.W.21, which remained undisputed by the Accused-1 and 2, rents received by the Accused-1 and 2 from the Flat at Delhi in the Financial Year 2008-2009 (Assessment Year 2009- 2010) are as follows:
Amount of Rent Received Sl.
Month & Year By the Accused-1 By the Accused-2
No. (In Rs.) (In Rs.)
1. September, 5,380 3,520
2008:
96 [Spl.C.C.112/2012-J]
2. October,
November,
59,400 39,600
December-
2008,
January,
February &
March-2009:
Total: 64,780 43,120
As per the
contention of
the Accused-1
and 2:
3. May 2008 to 30,000 24,000
August, 2008.
Total: 94,780 67,120
As per the above calculation, rent received by the Accused-2 in the year 2008-2009 is Rs.43,120/- excluding for the months of May 2008 to August 2008. If rent of those 4 months is also included as per the contention of the Accused-1 and 2, rent received by the Accused-2 in the year 2008-2009 would be Rs.67,120/-. But, as per Page-8 of Ex.D.8 and Ex.D.8(a), the Accused-2 has shown that the rent received by her is only Rs.63,600/-. This figure does not tally with the rent calculated as above. There is no explanation from the Accused-1 and 2 in this regard.
108. D.W.1-Sri.Dinesh Maiya is said to be a Freelance Accountant. But, there is nothing to show that he is working as such. In his evidence, D.W.1 has deposed 97 [Spl.C.C.112/2012-J] that he prepared Income Tax Returns and Computations in respect of the Accused-2 and that he sent the same to Chartered Accountant-K.V.A & Associates at Bilaspur and that the said Chartered Accountant has filed Income Tax Returns on behalf of the Accused-2 in IT Ward at Bilaspur. He has produced Ex.D.8 and Ex.D.8(a), referred to above. He has further deposed that the Accused-1 and 2 have received rent of Rs.54,000/-, which is reflected in Ex.P.10, Ex.P.22 and Ex.P.45. He has deposed that the total Income of the Accused-2 for the Financial Year 2008-2009 was Rs.1,68,539/- and that the said figure is reflected in the Income Tax Returns and also Computation of Income filed along with the said Income Tax Returns. However, it is not stated by D.W.1 as to what was the rental income of the Accused-2 in the Financial Year 2008-2009. He has not given any explanation about the discrepancy in Page-8 of Ex.D.8 and Ex.D.8(a) as well as showing of Rental Income as Rs.63,600/- as against Rs.67,120/-. Though it is stated by D.W.1 that he prepared Income Tax Returns and Computation of Income of the Accused-2, there is nothing in Ex.D.8 and Ex.D.8(a) to substantiate the same. On the other hand, in Ex.D.8, it is stated by the K.V.A & Associates that Computation of Income and Income Tax Returns for the Assessment Year 2006-2007 to Assessment Year 2011-2012 have been prepared by them on the basis of data, details and documents produced by the Accused-2. Though Page-8 of Ex.D.8 contains a Round Seal of K.V.A. & Associates, Page-8 of Ex.D.8(a), which is 98 [Spl.C.C.112/2012-J] said to be the original of Page-8 of Ex.D.8 does not contain the said Seal. To explain the situation and other discrepancies, the evidence of a competent person from K.V.A. & Associates, who said to have prepared Ex.D.8 and Ex.D.8(a), is proper and relevant. But, the Accused-1 and 2 have not produced that evidence. There is no explanation from them in this regard. The evidence of D.W.1 indicates that he has given evidence in several Disproportionate Assets Cases on behalf of the Public Servants, who are facing trials in such cases. As such, it appears that D.W.1 is in the habit of giving evidence on behalf of the Accused in Disproportionate Assets Cases without any basis and authority. Under all these circumstances, it is not safe to rely upon the evidence of D.W.1 as well as Ex.D.8 and Ex.D.8(a) to appreciate the contention of the Accused-1 and 2.
109. As observed above, excluding the months of May, June, July and August 2008, the Accused-1 has received rent of Rs.64,780/- from the Delhi Flat in the Assessment Year 2009-2010. If the rents for the months of May to August 2008 as claimed by the Accused-1 and 2 are taken into consideration, the total rent received by the Accused-1 in the Assessment Year 2009-2010 amounts to Rs.94,780/-. According to the Accused-1 and 2, the Accused-1 has also shown this Rental Income in his Income Tax Returns. Ex.P.50 contains Certified Copies of Income Tax Returns for the Assessment Years 2005-2006 99 [Spl.C.C.112/2012-J] to 2010-2011 relating to the Accused-1 issued by the Assistant Commissioner of Income Tax. Pages-9 to 15 of that document relate to the Assessment Year 2009-2010. Page-11 of that document shows Computation part. 2nd column of this part relates to Income from House Property. In this document, the Accused-2 has not shown any Income from House Property. On the other hand, he has shown '0' Income from the House Property. If at all the Accused-1 received Rs.30,000/- as rent for the months of May 2008 to August 2008 as claimed by him, he would have shown the same in his Income Tax Returns for that year. But, though he has claimed that he has shown that disputed Rental Income in his Income Tax Returns, he has not shown the same and in fact, he has not even shown the admitted Rental Income in his Income Tax Returns. This evidence available on record shows that the Accused- 1 is not fair in his dealings and this circumstances strongly negatives the contention of the Accused-1 and 2.
110. P.W.42-Sri.Dhirender Kumar is the Care Taker of K.M. Co-operative Group Housing Society Limited. Flat of New Delhi belonging to the Accused-1 and 2 is under his care. The said Society used to collect Maintenance, Electricity and Water Charges in respect of the Flats including the Flat of the Accused-1 and 2. Ex.P.73 consists of Receipts issued by the said Society for having received Maintenance Charges, Water and Electricity Charges, Welfare Fund etc., in respect the Flat of the Accused-1 and 100 [Spl.C.C.112/2012-J]
2. In his evidence, he has deposed that the amounts under Receipts-Ex.P.73 have been paid by the Tenant- Sri.Ranjan, General Manager of Indraprastha Gas Limited and Sri.Narender of Power Grid Company. After treating this witness as hostile, the learned Public Prosecutor Cross-examined him. In his Cross-examination, he has denied that said amounts have been paid by the Accused-1 himself. Ex.P.24 is a portion of Statement of P.W.42 recorded by the Investigating Officer. As per that Statement, P.W.42 has stated before the Investigating Officer that the Accused-1 has paid the said amounts under Ex.P.73. But, P.W.42 has deposed that he did not say so. However, he has admitted that when the Flat is vacant, the owner of the building pays the Maintenance Charges. In the Cross-examination made on behalf of the Accused-1 and 2, P.W.42 has stated that it is true that between 2006 to 2010, there were 3 Tenants. On the basis of the said answer of P.W.42, the learned Advocate appearing on behalf of the Accused-1 and 2 strongly contended that the said 3rd Tenant is none other than the friend of his relative, who had taken the Flat on rent for a period of 4 months only in the year 2008. But, it is not the evidence of P.W.42 that the said friend of the relative of the Accused-1 and 2 was a Tenant in that Flat from the month of May 2008 to August 2008. Normally Maintenance Charges will be paid by the Tenant only and this fact is not disputed by the Accused-1 and 2. If at all the said Tenant i.e., friend of relative of the Accused-1 and 2 was in 101 [Spl.C.C.112/2012-J] occupation of the Flat for the said 4 months, he would have paid Maintenance Charges. Ex.P.73 does not show payment of Maintenance Charges, Electrical Charges, Water Charges or other charges during the months of May 2008 to August 2008. Even P.W.42 has not stated about payment of those charges by that Tenant. Under these circumstances and in the absence of specific evidence of P.W.42 that friend of relative of the Accused-1 and 2 was in occupation as a Tenant for those disputed 4 months, it is not fit to accept the arguments of the learned Advocate appearing on behalf of the Accused-1 and 2 that there was a Tenant for a period of 4 months from May 2008 to August 2008 only on the basis of the statement of P.W.42.
111. On considering all the above facts, circumstances and the evidence available on record and in the absence of acceptable evidence on behalf of the Accused-1 and 2 and on the other hand, in view of the material discrepancies found in the evidence placed by the Accused-1 and 2, it is clear that the probabilities are not in favour of the Accused-1 and 2 to believe that there was a Tenant in their Flat for the months of May 2008 to August 2008 and that they received rent of Rs.54,000/- in respect of those 4 months in addition to rent of Rs.5,83,300/- during the Check Period. For all these reasons, it is held that the Rental Income of the Accused-1 and 2 during the Check Period is Rs.5,83,300/-.
102 [Spl.C.C.112/2012-J] 3.3: Interest Received During The Check Period
112. As per Table-9 at Page-14 of the Charge Sheet, the Accused-1 and 2 and their children received Rs.2,77,344/- by way of Interest from various Accounts during the Check Period. However, during the course of arguments and by filing DA Calculation Table, the learned Public Prosecutor has admitted that the Interest received by the Accused-1 and 2 and their family members during the Check Period is Rs.2,91,546.87. The details of the same are as follows:
Sl. Account Interest Interest In The No. Number Received. Accrued. Name Of & Bank (As per Charge (As per the Sheet) Admission in the (In Rs.) DA Calculation Table filed by the learned Public Prosecutor.) (In Rs.)
1. SB Account No. 5,491.46 13,066.87 Accused-2.
503-798520/R/ 00353-E of Royal Bank of Scotland:
2. SB Account No. 7,012.00 9,423.00 Accused-1.
035701000726 of ICICI Bank HSR Layout Branch:
3. SB Account No. 991.00 1,450.00 Accused-1.
000301032433 of ICICI Bank, Vadodara:
4. SB Account No. 2,205.00 2,294.00 Accused-2.
Standard and
Chartered Bank
Bengaluru Account
No.45610477014:
5. SBI Nirman 5,182.00 5,182.00 Accused-1.
Bhawan SB A/c
No.01190037792:
103 [Spl.C.C.112/2012-J]
6. SBI Nirman 28,568.00 28,568.00 Son of the
Bhawan PPF A/c Accused-1
No.10569780012: and 2.
7. SBI Nirman 29,895.00 33,561.00 Daughter of
Bhawan PPF A/c the Accused
No.10569780001: -1 and 2.
8. SBI Nirman 74,944.00 74,944.00 Accused-1.
Bhawan PPF A/c
No.10569763608:
9. SBI Nirman 47,544.00 47,544.00 Accused-2.
Bhawan PPF A/c
No.10569766519:
10. Accrued Interest in 734.00 734.00 Accused-1.
Corporation Bank
A/c.No.001715:
11. Interest received 8,649.00 8,651.00 Accused-2.
from 4 FDs at RBS
Bengaluru, which
was deposited and
encashed during
the Check Period:
12. Accrued Interest of 20,135.00 20,135.00 Accused-1.
2 FDs in ICICI
Bank, HSR Layout
Branch, Bengaluru:
13. Accrued Interest of 5,994.00 5,994.00 Accused-1.
FD No.4714168763
in ICICI Bank,
Koramangala
Branch, Bengaluru:
14. Withdrawal amount 40,000.00 40,000.00 Accused-1.
from SBI Nirman
Bhawan PPF A/c.
No.10569763608:
Total: 2,77,344.46 2,91,546.87
The evidence of P.W.9, P.W.10, P.W.11, P.W.20 and P.W.24 as well as the contents of Ex.P.22 to Ex.P.27, Ex.P.45 and Ex.P.49 support the version of the learned Public Prosecutor except in respect of Items-1 and 3. The Accused-1 and 2 also did not dispute the said claim of the Complainant as contended by the Public Prosecutor to an 104 [Spl.C.C.112/2012-J] extent of Rs.2,77,030/-, except in respect of Items-1 and
3. In fact, at Pages-68 and 69 of their Written Arguments and Pages-22 and 23 of Annexure-'A' to their Written Arguments, the Accused-1 and 2 have admitted the said fact. Now, the dispute is only in respect of Items at Sl.No.1 and Sl.No.3.
3.3.1: Interest Accrued In The SB A/c.
No.503-798520 Of Royal Bank of Scotland
113. It is not in dispute that the Accused-2 is having SB Account in No.503-798520 in Royal Bank of Scotland. Ex.P.45 is the Statement of Account in respect of that Account. P.W.20-Sri.Rithish Kumar Mavila has produced Ex.P.45. According to the Complainant, Interest accrued in that Account during the Check Period is Rs.5,491/-. But, according to the Accused-1 and 2, the Interest accrued during the Check Period in that Account is Rs.13,193/-. Admission of P.W.20 in his Cross-examination and contents of Ex.P.45 show that the Interest accrued in that Account during the Check Period is Rs.13,193/-. As such, the said evidence supports the contention of the Accused-1 and 2 and negatives the contention of the Complainant. It appears that while totaling, the Complainant has committed mistake. Hence, it is held that the Interest accrued in the SB Account No.503- 798520 of the Accused-2 during the Check Period is Rs.13,193/-.
105 [Spl.C.C.112/2012-J] 3.3.2: Interest Accrued In The SB A/c.
No.000301032433 Of ICICI Bank, Vadodara
114. It is not in dispute that the Accused-1 is having SB Account in No.000301032433 in ICICI Bank, Vadodara. Ex.P.23 and Ex.D.15 are the Statement of Accounts pertaining to that SB Account and also in respect of other Fixed Deposits of the Accused-1. P.W.9-Smt.Sumitha, the then Bank Operations Manager of ICICI Bank has produced Ex.P.23. D.W.1 has produced Ex.D.15.
115. According to the Complainant, Interest accrued in respect of that Account during the Check Period is Rs.991/-. But, according to the Accused-1 and 2, the said Interest is Rs.4,522/-. On scrutiny of the entries in Ex.P.23 and Ex.D.15, it is clear that the Complainant has left out some portion of Interest while Computation and that the Accused-1 and 2 have added some Interest portion pertaining to other Accounts and that there is error on the part of the Complainant as well as the Accused-1 and 2 in computing the Interest portion. As per Ex.P.23 and Ex.D.15, details of the Interest credited to the SB Account during the Check Period are as follows:
Sl. Date Amount
No. (In Rs.)
1. 03.09.2005 205
2. 04.03.2006 425
106 [Spl.C.C.112/2012-J]
3. 02.09.2006 361
4. 03.03.2007 411
5. 13.04.2007 48
Total: 1,450
Hence, it is held that Interest accrued in the SB Account No. 000301032433 during the Check Period is Rs.1,450/-.
116. On considering all the above facts, circumstances, evidence and admission of both the parties, it is clear that the total Interest received by the Accused-1 and 2 during the Check Period is Rs.2,77,030/- + Rs.13,193/- + Rs.1,450/-= Rs.2,91,673/-. Accordingly, it is held that the Interest received during the Check Period is Rs.2,91,673/-.
3.4: Total of Receipts & Income In Respect of Items-1 To 17
117. From the above facts, circumstances and evidence available on record as well as admission made by both the parties, it is clear that Total Receipts and Income of the Accused-1 and 2 during the Check Period is Rs.49,57,464/- in respect of Items-1 to 17.
3.5: Items Left By The Complainant As Contended By The Accused-1 & 2
118. According to the Accused-1 and 2, the Complainant has left some of Receipts and Income, which 107 [Spl.C.C.112/2012-J] are received by the Accused-1 and 2 during the Check Period, and the details of the same are as follows:
Sl. Received Amount
Details
No. by Whom (In Rs.)
3.5.1. Maturity Amount of NSC Accused-1. 16,103
No.23375:
3.5.2. Income of the Accused-2: Accused-2. 11,83,045
3.5.3. Amount returned by Accused-1. 50,000
Sri.M.S.Sandhu:
3.5.4. Amount returned by Accused-2. 75,000
Smt.Satinder Kaur:
3.5.5. Amount given by Elder 52,700
Sri.Jogendra Singh towards Daughter of School Fees: Accused-1.
3.5.6. Transfer Grant: Accused-1. 20,813 3.5.7. Remuneration for attending Accused-1. 9,000 Meeting of BWC:
3.5.8. Amount transferred to HUF Accused-1. 25,000 A/c. of Accused-1 by Sri.Jogendra Singh:
3.5.9. Amount taken from Accused-1. 20,000 Smt.Parminder Kaur/ Sri.Jogendra Singh towards Stamp Charges and Registration Charges:
3.5.10. Re-imbursement of News Accused-1. 5,953 Paper Bill:
3.5.11. Interest accrued in SB Accused-1. 3,553 A/c.035701502689 of ICICI Bank:
3.5.12. Interest accrued in SB Accused-2. 922
A/c.00331000135222 of
HDFC Bank:
3.5.13. Amount given by mother of Accused-2. 2,50,000
the Accused-2:
3.5.14. Receipts from Sale of Shares Accused-1. 1,40,000
of the Accused-1:
3.5.15. Receipts from Sale of Shares Accused-2 30,000
of the Accused-2:
3.5.16. Maturity amount of LIC Accused-2. 3,73,400
Policies of P.W.37-
Sri.R.S.Wadhwa:
108 [Spl.C.C.112/2012-J]
3.5.17. Amount given temporarily Accused-2. 2,50,000
by Sri.M.S.Sandhu for
Purchase of Flat or taking a
Flat on Mortgage:
3.5.18. Amount given by Accused-2. 3,50,000
Sri.M.S.Sandhu for up
bringing of children:
3.5.19. Amount given by Accused-2. 74,000
Smt.Parminder Kaur
towards Education Expenses
of the daughter of the
Accused-1 & 2:
3.5.20. Birthday Gifts: Accused-2. 19,000
3.5.21 Gifts received by the Accused-2 40,000
Accused-2 and her Daughter and her
on their Birthday: Daughter.
3.5.22. Gifts received by the Accused-2. 41,000
Accused-2 from relatives
during Anniversary,
Festivals, Family Functions,
Marriages etc.:
3.5.23. Sale Proceeds of Old Accused-1. 14,500
Household Items:
3.5.24. Sale Proceeds of Gold Accused-2. 70,500
Ornaments:
3.5.25. Cost of Staple Food Accused-2. 40,000
received:
Total: 31,54,489
3.5.1: Maturity Amount Of NSC No.23375
119. According to the Accused-1 and 2, the Accused- 1 had purchased a NSC bearing No.23375 for Rs.10,000/-
from V.N.Colony Post Office, Vadodara on 20.04.2003 and he received Maturity amount of Rs.16,103/- in respect of that NSC on 27.07.2009, but, the Complainant has failed to take that amount into Account. Contents of Ex.P.22 and Ex.D.17 fortify the said contention of the Accused-1 and 2.
109 [Spl.C.C.112/2012-J] As observed above, while dealing the Head-1.7.1, this Court has held that the Accused-1 purchased NSC bearing No.23375 on 20.04.2003, he received Maturity amount of Rs.16,103/- on 27.07.2009, the Complainant has left out that Item while Computation and that the learned Public Prosecutor fairly submitted during the course of arguments to consider the said amount also. As such, it is clear that the Accused-1 received NSC Maturity amount of Rs.16,103/- as Income during the Check Period. Accordingly, it is held that the Accused-1 received Income of Rs.16,103/- from NSC during the Check Period.
3.5.2: Income Of The Accused-2
120. The learned Advocate appearing on behalf of the Accused-1 and 2 has contended that the Accused-2 is highly qualified with Post Graduation in MA (Sociology); she has undergone training in Self Grooming Hair Styling and Beauty Therapy; after 2 years of marriage, she kept herself engaged in her own employed business mostly of vocational in nature; she worked with NJ India Invest, Vadodara for about 2 years; besides she had other sources of income like rent, salary, commission, interest, income from investment, tuition etc.; she has her own PAN number and filing her Income Tax Returns since 1996 itself regularly and that the Complainant has not considered her income. Rental Income, Income from Interest and Investment in the name of the Accused-2 have been 110 [Spl.C.C.112/2012-J] considered already under the Heads-'3.2: Rental Income' & '3.3: Interest Received during the Check Period'. According to the learned Advocate appearing on behalf of the Accused-1 and 2, apart from the Rental and Investment Income of the Accused-2, the Accused-2 earned Income of Rs.11,83,045/- during the Check Period and the details are as under:
a) Income from Business: ... Rs.7,54,511/-
b) Income from Salary Sources i.e., from Dr.Narpat Solanki: ... Rs.2,52,000/-
c) Income from Vocational Jobs: ... Rs.1,76,534/-
_____________ Total: Rs.11,83,045/-
_____________ In support of his contention, the learned Advocate appearing on behalf of the Accused-1 and 2 has relied upon the evidence of D.W.1, Ex.D.8(a), Ex.D.9, Annexure- A-1.1 to A-1.3 and also Form No.16 filed on 15.09.2014.
a. Income from Business
121. According to the Accused-1 and 2, the Accused- 2 earned income of Rs.7,54,511/- from Business during the Check Period. D.W.1 has deposed that, on the basis of Ex.P.45, he has prepared Consolidated Statement of Income of the Accused-2 from Business as per Ex.D.9. Ex.P.45 is the Copy of Statement relating to Savings Account of the Accused-2. In Ex.D.9, it is stated that the 111 [Spl.C.C.112/2012-J] Accused-2 received Rs.7,54,511/- in all on different dates from 08.02.2006 to 23.06.2010. Figures and Dates given in Ex.D.9 tally with the entries in Ex.P.45. As per Ex.P.45, the said amounts are credited to the Savings Account of the Accused-2 through Cheques under the Head of 'By INST'. However, the said entries do not indicate that the said amounts were received by the Accused-2 from Business. The Accused-1 and 2 have not stated as to what was the nature of Business, which was done by the Accused-2. Even D.W.1 has not whispered anything about the same. No supporting documents are produced to show the said Business of the Accused-2.
122. The learned Advocate appearing on behalf of the Accused-1 and 2 has strongly relied upon Ex.D.8(a) by contending that the said Income of the Accused-2 from Business has been shown in Income Tax Returns and that as such, the said Income has to be taken into consideration. In Ex.D.8(a) also, nature of Business of the Accused-2 is not shown. In Ex.D.8(a), in the Pages relating to Computation of Income, it is stated that the Accused-2 earned Income from Brokerage and Commission. Nature of the said Brokerage and Commission Business is also not stated in Ex.D.8(a) or in the evidence of D.W.1 or by the Accused-1 and 2. In Ex.D.8(a) at Page-2, it is stated that Income from Brokerage, Misc., Interest, Vocations, Tuition etc., in the Assessment Year 2006-2007 (Financial Year 2005-2006) is Rs.1,47,500/-. But, the specific amount 112 [Spl.C.C.112/2012-J] received from the alleged Business of the Accused-2 from 01.08.2005 to 31.03.2006 is not mentioned in that Document. In that Document-Ex.D.8(a), it is stated at Page-4 that Net Income from Misc. Commission earned for the Assessment Year 2007-2008 (Financial Year 2006- 2007) is Rs.1,21,600/-. But, as per Ex.D.9, it is Rs.1,36,840/-. In Ex.D.8(a), it is stated at Page-6 that Net Income from Brokerage and Commission for the Assessment Year 2008-2009 (Financial Year 2007-2008) is 1,42,320/-. But, as per Ex.D.9, it is Rs.1,85,040/-. In Ex.D.8(a) at Page-8, it is stated that Income from Commission for the Assessment Year 2009-2010 (Financial Year 2008-2009) is Rs.1,33,880/-. But, according to Ex.D.9, it is Rs,2,07,700/-. In Ex.D.8(a) at Page-10, it is stated that Income from Commission for the Assessment Year 2010-2011 (Financial Year 2009-2010) is Rs.1,73,711/-. But, as per Ex.D.9, it is Rs.1,32,685/-. In Ex.D.8(a) at Page-12, it is stated that Income from Commission/Brokerage for the Assessment Year 2011- 2012 (Financial Year 2010-2011) is Rs.74,200/-. But, as per Ex.D.9, just for 2 months, the said Income is Rs.83,386/-. Thus, it is clear that figures in Ex.D.8(a) do not show correct figures as per Ex.D.9 and Ex.P.45. Ex.D.9 is prepared on the basis of Ex.P.45. There is no explanation from D.W.1, who said to have prepared Income Tax Returns of the Accused-2, in this regard. As observed above, while dealing under the Head-'3.2:
Rental Income', this Court has observed that a serious 113 [Spl.C.C.112/2012-J] doubt arises about the genuineness of Ex.D.8 and Ex.D.8(a). The figures noted above also fortify the said view of this Court. Hence, it is not safe to rely upon Ex.D.8(a) to appreciate the contention of the Accused-1 and 2.
123. As observed above, details of the said business of the Accused-2 are not given and no supporting documents in respect of that Business are produced. As observed above, Income Tax Returns entries in Ex.D.8(a) do not tally with the entries in Ex.D.9 and it is difficult to rely upon the said entries in Ex.D.8(a). On considering all these facts and circumstances, it is clear that preponderance of probabilities is not in favour of the Accused-1 and 2 to believe that the Accused-2 had income from Business as contended. Hence, it is held that the Accused-1 and 2 failed to show the alleged Income of the Accused-2 from Business.
b. Income From Salary Sources
124. It is contended by the learned Advocate appearing on behalf of the Accused-1 and 2, in his Written Arguments, that the Accused-2 received Rs.2,52,000/- as Income from Salary during the Check Period. According to him, for the Financial Year 2009-2010, the Accused-2 received Salary of Rs.2,16,000/- and for the Financial Year 2010-2011, she received Salary of Rs.36,000/- from Dr.Narpat Solanki and the same has been shown in 114 [Spl.C.C.112/2012-J] Ex.D.8(a). In his evidence, D.W.1 has also stated the said fact. But, it is not stated as to what was the nature of work of the Accused-2 with Dr.Narpat Solanki. It is also not stated by the Accused-1 and 2 either in their Reply filed as per Ex.D.7 or in their Statement filed under Section 243(1) of the Cr.P.C., or Written Arguments and also by D.W.1 as to when actually, the Accused-2 started to work with Dr.Narpat Solanki. No supporting documents are also produced to substantiate their contention. However, the Accused-1 and 2 strongly relied upon Ex.D.8(a) and Form No.16, said to have been issued by Dr.Narpat Solanki. In Ex.D.8(a) at Page-10, it is stated that the Accused-2 received Salary Income of Rs.2,16,000/- from Dr.Narpat Solanki for the Assessment Year 2010-2011 (Financial Year 2009-2010). At Page-12 of Ex.D.8(a), though it is stated that the Accused-2 received Income of Rs.36,000/- from Part Time Job during the Assessment Year 2011-2012 (Financial Year 2010- 2011), it is not stated that the said Income is from Salary Source received from Dr.Narpat Solanki.
125. The Accused-1 and 2 have produced Form-16 as Additional Document on 15.09.2014, which is said to have been issued by Dr.Narpat Solanki for the Assessment Year 2009-2010. But, Form No.16 is not produced for the Financial Year 2010-2011. The said Form No.16 produced by the Accused-1 and 2 does not show as to when actually the said document was issued. As per that document, Dr.Narpat Solanki is having Mahaveer Eye Clinic at Flat 115 [Spl.C.C.112/2012-J] No.103, Suraj Sadan Apartments, 2nd Cross, Gandhi Nagar, Bengaluru. In that document, it is shown that the Accused- 2 is an Employee as Administrator. The details of establishment of that Eye Clinic and Employees of that Eye Clinic are not placed before the Court. The said establishment is not an Eye Hospital, but, it is just an Eye Clinic only. As the said establishment is an Eye Clinic only running in a Flat, it appears that it may be a small Clinic, which may not require Administrator to manage it. As such, a serious doubt arises about the employment of the Accused-2 as an Administrator in the said Eye Clinic. In the said Form No.16, it is stated that Gross Salary of the Accused-2 for the Assessment Year 2009-2010 is Rs.2,16,000/-. As per that document, though the Accused- 2 has claimed rebate under Section 80(C) of the Income Tax Act towards Tuition Fees paid, she did not report any other income to her Employer. Though it is mandatory to deduct Professional Tax of Rs.200/- p.m., in respect of Salary received by an Employee exceeding Rs.15,000/- and though as per Form No.16, the Accused-2 has received Salary more than Rs.15,000/- p.m., the Employer has not deducted Professional Tax and nothing about the same is shown in that Form No.16. As such, a serious doubt arises about the genuineness of the said Form No.16 also. To explain about all these doubts, the evidence of Dr.Narpat Solanki is very material. But, the Accused-1 and 2 have not produced the evidence of that Dr.Narpat Solanki. As such, it is not safe to rely upon the said Form 116 [Spl.C.C.112/2012-J] No.16 produced by the Accused-1 and 2. As observed above, it is also not safe to rely upon Ex.D.8(a).
126. As per Rule-4 of the Rules, if his wife i.e., Accused-2 accepts any employment in any Company or Firm, it is mandatory on the part of the Accused-1 to intimate the same to the Prescribed Authority apart from intimating as to whether he has or has had any official dealing with the said Company or Firm. If at all the Accused-2 was working in Mahaveer Eye Clinic with Dr.Narpat Solanki, he ought to have informed the same to the Prescribed Authority. But, he has not done so. This circumstance also goes against the Accused-2.
127. On considering all the above facts, circumstances and in the absence of supporting documentary evidence as well as the evidence of Dr.Narpat Solanki, it is clear that the preponderance of probabilities is not at all in favour of the Accused-1 and 2 to believe that the Accused-2 worked with Dr.Narpat Solanki and that she received Income of Rs.2,52,000/- during the Check Period. Hence, it is held that the Accused-1 and 2 have failed to prove the Income of Rs.2,52,000/- from Salary Source during the Check Period as contended by them.
c. Income from Vocational Jobs
128. According to the Accused-1 and 2, the Accused- 2 being an highly qualified person worked with NJ India 117 [Spl.C.C.112/2012-J] Invest around 2 years and by doing Vocational Jobs viz., Tuition, Bridal Make up, Hair Styling etc., the Accused-2 earned Income of Rs.1,76,534/- during the Check Period. In his evidence, D.W.1 has deposed that the Accused-2 was having other Vocational Income of Rs.1,76,534/-/- from Bridal Make up and Hair Styling for the Financial period from 2005-2006 to 2010-2011. He has not stated about the alleged Tuition Income of the Accused-2. He has also not given the details of the said Vocational Jobs of the Accused-2.
129. Annexure-A-1.1 of the Written Statement filed under Section 243(1) of the Cr.P.C., is Xerox Copy of Marks Sheet, which indicates that the Accused-2 obtained MA Degree in Sociology as a non-collegiate student in the year 1994. But, there is nothing to show that the Accused-2 worked with NJ India Invest as contended by the Accused-1 and 2. The Accused-1 and 2 have also not furnished any details as to when, where, to whom and on which Subject, the Accused-2 was giving Tuition. There is also no supporting document regarding the said Tuition Income. Except in Page-2 of Ex.D.8(a) relating to Income Tax Returns for the Assessment Year 2006-2007, there is no reference in any other document about the Tuition Income of the Accused-2. Even in Page-2 of Ex.D.8(a), specific Income from Tuition is not shown. As per that document, the total Income of the Accused-2 in the Assessment Year 2006-2007 was Rs.1,47,500/-, which 118 [Spl.C.C.112/2012-J] includes the Income from Brokerage, Misc., Interest, Vocations, Tuition etc., including Gifts received from Sri.Sanjeev Singh Wadhwa and Smt.Sheela Wadhwa. As per Ex.D.9, Income from Business during that period itself was Rs.82,400/-. Income from Gifts, Misc., Interest and Vocations are not specified in that document. As such, it is not clear about the alleged Tuition Income of the Accused-
2. As observed above, Ex.D.8(a) is not a reliable document. It is a matter of common knowledge that normally students go for private tuitions only for the hard subjects like Science, Mathematics, Accountancy and English and that they will not go for tuitions for the Art Subjects like Sociology. The Accused-2 has not obtained her Masters Degree in any of the subjects like Mathematics, Science, Accountancy and English. As such and in the absence of supporting evidence, it is difficult to accept the bare contention of the Accused-1 and 2 only on the basis of unreliable document-Ex.D.8(a) that she had Income through Tuitions.
130. Annexures-'A-1.2' & 'A-1.3' are the Xerox Copies of Certificates said to have been issued by Nishat Rizvi, which indicate that the Accused-2 has undergone Training in Beauty Therapy and Self Grooming Hair Styling in the year 1992. Though the said documents indicate that the Accused-2 has undergone Beauty Therapy, details are not furnished as to where she was doing Beauty Therapy work and as to how much she was earning from that work.
119 [Spl.C.C.112/2012-J] Pages-2, 4, 8, 10 and 12 of Ex.D.8(a) do not show anything about Beauty Therapy work and Income of the Accused-2. Though in Page-6 of Ex.D.8(a), it is stated that the Accused-2 having Income of Rs.22,350/- from Beauty Parlor work, details of that work and Income are not furnished. As observed above, Ex.D.8(a) is not reliable document. Hence, only on the basis of Ex.D.8(a) and in the absence of any supporting evidence, it is difficult to accept the bare contention of the Accused-1 and 2 that the Accused-2 had Income from Beauty Therapy work.
131. Furthermore, if at all the Accused-2 had such an Income from Vocational Jobs, the Accused-1 ought to have intimated the same through his Annual Statement of Assets and Liabilities to the Government as per Rules. But, the Accused-1 has not done so. This fact also goes against the Accused-1 and 2.
132. According to the Accused-1 and 2, the Accused- 2 is filing her Income Tax Returns since 1996 itself, the same has been intimated to P.W.43 through Ex.D.7 and in fact, P.W.43 has seized PAN Card of the Accused-2, which is available in Ex.P.7, and as such, P.W.43 could have enquired about the Income of the Accused-2 by securing Income Tax Returns from the Income Tax Authorities and as he has not done so, an inference has to be drawn in favour of the Accused-2 about her Income by relying upon Income Tax Returns. But, the Accused-2 has not produced her Income Tax Returns from 1996 as contended by her.
120 [Spl.C.C.112/2012-J] In Ex.D.7, except contending that the Accused-2 was doing different vocational jobs in her own way and that she gained Assets from Gifts, her own earnings etc., the Accused-1 or the Accused-2 did not produce any Income Tax Returns of the Accused-2. In fact, in Ex.D.7, not even a whisper is made about filing of Income Tax Returns by the Accused-2. Even during the Cross-examination of P.W.43, the said Income Tax Returns were not confronted to him. As such, P.W.43 was not in a position to say anything about Income Tax Returns. As observed above, Ex.D.8(a) is not reliable document. Under all these circumstances and in the absence of supporting evidence about the Income of the Accused-2, it is not safe to accept the bare contention of the Accused-1 and 2 only on the basis of suspicious Income Tax Returns produced as per Ex.D.8(a).
133. Considering all these facts and circumstances and in the absence of supporting evidence, it is clear that preponderance of probabilities is not in favour of the Accused-1 and 2 to believe that the Accused-2 had Income of Rs.1,76,534/- from Vocational Jobs. Accordingly, it is held that the Accused-1 and 2 have failed to prove that the Accused-2 earned Income of Rs.1,76,534/- from Vocational Jobs during the Check Period as contended by them.
134. From the above discussion and on appreciation of facts, circumstances and the evidence available on 121 [Spl.C.C.112/2012-J] record, it is clear that the Accused-1 and 2 failed to prove that the Accused-2 received Income of Rs.11,83,045/- during the Check Period as contended by them. Hence, the claim of the Accused-1 and 2 regarding Income of Rs.11,83,045/- of the Accused-2 during the Check Period is rejected.
3.5.3: Amount Returned By Sri.M.S.Sandhu
135. According to the Accused-1 and 2, during the year 1997, the Accused-1 had paid Rs.25,000/- and the Accused-2 had paid Rs.20,000/- to Sri.M.S.Sandhu on the occasion of Namakaran and Pagari Ceremony of his grandson and cousins marriage of the Accused-1 and Sri.M.S.Sandhu returned that amount by adding Rs.5,000/-, in all Rs.50,000/- on 15.02.2007 and as the said amount of Rs.50,000/- is a Receipt during the Check Period, it has to be taken into Account, but the Complainant has left out the same. While dealing under the Head-'1.7.3'., this Court has upheld the said contention of the Accused-1 and 2 that they had paid Rs.45,000/- and that, in return, the Accused-1 received Rs.50,000/- on 15.02.2007. As such, it is clear that the Accused-1 received Rs.50,000/- on 15.02.2007 from Sri.M.S.Sandhu, which is a Receipt to him during the Check Period.
136. The learned Public Prosecutor has contended that the said amount of Rs.50,000/- has been taken into 122 [Spl.C.C.112/2012-J] consideration as Receipt of Income under Item-15 of Statement-C and that as such, it is not permissible to take the said Receipt into Account once again now. Item-15 of Statement-C relates to payment made by Sri.Mohinder Singh Sandhu i.e., Sri.M.S.Sandhu. Under that Head, the Complainant has taken into Account Rs.1,63,274/- as Receipt to the Accused-1 on the basis of Ex.P.69, which is a Statement given by Sri.M.S.Sandhu. The Accused-1 and 2 have also relied upon that document. As per this document, Sri.M.S.Sandhu paid in all Rs.1,63,274/- on 4 occasions. As per that document, the said amount of Rs.1,63,274/- includes Rs.50,112/-, which includes DD Charges of Rs.112/-, paid through DD No.446650 on 15.02.2007. The Accused-1 and 2 are claiming the same amount once again under the present Head. As the Complainant has already taken into account the said amount of Rs.50,000/- in Item-15 of Statement-C, it is not permissible to take the said amount into account once again. Hence, claim of the Accused-1 and 2 in respect of Rs.50,000/- under the present Head is not fit to be considered. Accordingly, it is held that claim of Rs.50,000/- made by the Accused-1 and 2 under the present Head is rejected.
3.5.4: Amount Returned By Smt.Satinder Kaur
137. According to the Accused-1 and 2, the Accused- 2 gave Cash of Rs.1,00,000/- as loan to Smt.Satinder 123 [Spl.C.C.112/2012-J] Kaur, who is the elder sister of the Accused-1, when she purchased Home for her and an amount of Rs.50,000/- was given by the Accused-1 through Demand Draft dated 01.02.2005. According to the Accused-1 and 2, Smt.Satinder Kaur returned Rs.75,000/- to the Accused-2, as repayment of part of loan amount of Rs.1,00,000/-, but, the Complainant has not taken into consideration of the said amount of Rs.75,000/- as receipt during the Check Period. D.W.1 and D.W.2 have referred to about the said contention in their evidence. But, they cannot have personal knowledge about the said transaction. There is nothing to show that the Accused-2 gave Rs.1,00,000/- to Smt.Satinder Kaur. In fact, it is not shown as to when actually the Accused-2 gave that amount. The Accused-1 and 2 have produced an Affidavit as per Ex.D.39, which is said to be sworn to by Smt.Satinder Kaur. In that document, it is stated that Smt.Satinder Kaur received Rs.1,50,000/- in all from the Accused-1 and 2 in the month of February, 2005. But, Smt.Satinder Kaur did not come forward to give evidence before this Court. In his Cross-examination, D.W.2 has admitted that Smt.Satinder Kaur is healthy and can undertake travel. In spite of the same, she has not come forward to give evidence and to subject herself for Cross- examination on behalf of the Complainant. As such, it is not safe to rely upon Ex.D.39. In fact, even in Ex.D.7, the Accused-1 has not stated about payment of Rs.1,00,000/- by the Accused-2 to Smt.Satinder Kaur. This circumstance 124 [Spl.C.C.112/2012-J] also goes against the Accused-1 and 2. Furthermore, the said Lending Transaction is not reported to the Government by the Accused-1 as required under Rules. Hence, it is difficult to accept the bare contention of the Accused-1 and 2 that the Accused-2 gave Rs.1,00,000/- as Loan to Smt.Satinder Kaur.
138. However, Ex.D.24-Statement of Savings Account of the Accused-1 indicates that he has withdrawn Rs.50,110/- through a Cheque on 01.02.2005. According to the Accused-1 and 2, the said amount of Rs.110/- out of Rs.50,110/- was spent towards DD Charges. Ex.D.25-Copy of Pass Book of Savings Bank Account & Xerox Copy of DD dated 29.08.2009 of Smt.Satinder Kaur and also Ex.P.45 show that Smt.Satinder Kaur paid Rs.75,000/- to the Accused-2 through a Demand Draft. In Ex.D.7 also, the Accused-1 has stated about loan of Rs.50,000/- given on 01.02.2005 and return of Rs.75,000/- by his sister. Though this transaction is also not intimated to the Government by the Accused-1 as per Rules, contents of Ex.P.45 and Ex.D.24 coupled with the Statement in Ex.D.7 probablises the loan given by him to his sister and return of the loan by his sister.
139. Though there is no acceptable evidence to show that the Accused-2 had given loan of Rs.1,00,000/- to the sister of the Accused-1, as there is evidence to show that the Accused-1 had given Rs.50,000/- to his sister and that his sister paid Rs.75,000/- through a DD to the Accused-2 125 [Spl.C.C.112/2012-J] and keeping in view the relationship between the Accused- 1 and his sister and in the absence of any other evidence to the contrary, it is just and reasonable to infer that the Accused-1 had given Rs.50,000/- to his sister and that the Accused-2 had given Rs.25,000/- to her in the year 2005 and that she repaid that amount on 29.08.2009 through the Accused-2. But, the Complainant has not taken this transaction into account under Statement-C, though he has taken the said amount of Rs.75,000/- into account in Sl.No.1 of Item-4 of Statement-B. As such, the said amount of Rs.75,000/- has to be taken as Receipt under Statement-C by the Accused-1 and 2 during the Check Period. Hence, it is held that the Accused-1 and 2 had given Rs.75,000/- in all to Smt.Satinder Kaur in the year 2005 and that, Smt.Satinder Kaur repaid that amount on 29.08.2009 to the Accused-1 and 2 through the Accused-2.
3.5.5: Amount Given By Sri.Jogendra Singh
140. According to the Accused-1 and 2, Sri.Jogendra Singh, who is the brother-in-law of the Accused-1, paid Rs.52,700/- through 2 Demand Drafts on 21.09.2006 towards school fee of Ms.Harshita i.e., elder daughter of the Accused-1 and 2, who was studying in Delhi Public School, Bengaluru and the said amount is not taken into consideration by the Complainant as Receipt during the Check Period. In Ex.D.7, the Accused-1 has stated about 126 [Spl.C.C.112/2012-J] the said receipt. Ex.D.27 is the Copy of Statement of Account relating to Sri.Jogendra Singh. This document indicates that Sri.Jogendra Singh has withdrawn Rs.52,700/- on 21.09.2006 from his Account. Copies of DD Applications dated 21.09.2007 issued by ICICI Bank, produced as Supplementary Documents by the Accused-1 and 2, indicate that Sri.Jogendra Singh purchased 2 Demand Drafts for Rs.52,700/- in all favouring Delhi Public School, Bengaluru. Pages-10 to 16 of Ex.P.7 are the Receipts issued by Delhi Public School, Bengaluru, which are seized by the Complainant during Search. The said Receipts show that the Delhi Public School received Rs.52,700/- through DD on 21.09.2006. Contents of these Receipts and also the Receipts produced by the Accused-1 and 2 along with Ex.D.27 indicate that the Delhi Public School received those 2 Demand Drafts towards school fees. As such, contents of all these documents fortify the contention of the Accused-1 and 2. On considering the said evidence available on behalf of the Accused-1 and 2 and in the absence of any evidence to the contrary on behalf of the Complainant, it has to be inferred that the Accused-1 received Rs.52,700/- on 21.09.2006 towards school fees from Sri.Jogendra Singh. Though the said amount given by Sri.Jogendra Singh amounts to Gift and though the same has not been intimated by the Accused-1 to the Government as per Rules, as there is evidence to show that Sri.Jogendra Singh paid the said amount towards school fees through Demand Drafts directly to the 127 [Spl.C.C.112/2012-J] School, it is not necessary to take into consideration the fact of non-intimation to the Government seriously. As the Accused-1 received the said amount towards the school fees of his daughter during the Check Period, the said amount has to be taken as Receipt by the Accused-1. Accordingly, it is held that the Accused-1 received Rs.52,700/- from Sri.Jogendra Singh during the Check Period.
3.5.6: Receipt Of Transfer Grant By The Accused-1
141. According to the Accused-1 & 2, the Accused-1 received Transfer Grant of Rs.20,813/- from the Government on 13.03.2007, which has not been taken into consideration by the Complainant as Receipt during the Check Period. In his Cross-examination, P.W.15 has admitted that on Transfer from Vadodara to Bengaluru, on 13.03.2007, the Accused-1 received Transfer Grant of Rs.20,813/-. Contents of Ex.D.18-Copy of Transfer Traveling Allowance Bill for Rs.20,813/- produced by the Accused-1 and 2 also show the said fact. There is no evidence to the contrary on behalf of the Complainant in this regard. As such, it is clear that on 13.03.2007, the Accused-1 received Transfer Grant of Rs.20,813/- from his Office. On Transfer from one place to another, Public Servant has to shift his family to new place and settle there. For this purpose, the Public Servant has to spend lot of money. Though Transfer Grant, Transfer T.A., 128 [Spl.C.C.112/2012-J] Transportation Charges will be paid by the Government, it is the experience of all the Public Servants that the said Transfer Grant, T.A., and Transportation Charges that will be paid by the Government will be far less than the actual expenses. The Accused-1 and 2 have not shown this expenditure separately. As such, it appears that the Complainant has not taken that amount into consideration as Receipt during the Check Period. Hence, it is held that the Transfer Grant received by the Accused-1 is not necessary to be taken as Receipt or Income during the Check Period. For all these reasons, the claim of the Accused-1 and 2 to include Transfer Grant in the Income or Receipt during the Check Period is rejected.
3.5.7: Remuneration In Respect Of Meeting Of Building Works Committee
142. According to the Accused-1, as he was a Member in the Building Works Committee(BWC) of Indian Institute of Sciences, Bengaluru, he used to attend bi- monthly meetings of that Committee and as a Remuneration, he has received Rs.9,000/- during the Check Period. In support of his contention, he has relied upon Ex.D.20-Details of Remuneration paid to the Accused-1, issued by the Public Information Officer of Indian Institute of Sciences. Contents of this document show that from 01.09.2006 to 01.06.2010, the Accused-1 has received Rs.9,000/- in all towards Sitting Fee for 129 [Spl.C.C.112/2012-J] attending BWC Meeting. As such, this document supports the contention of the Accused-1. Though the Accused-1 has received this Remuneration during the Check Period, the Complainant has not taken that amount into consideration. Hence, it is held that the Accused-1 received Rs.9,000/- as Remuneration for attending the Meeting of BWC during the Check Period.
3.5.8: Amount Transferred By Sri.Jogendra Singh
143. According to the Accused-1 and 2, birthday of their children Riya and Simar (twins) falls on 26th of June and on this occasion, Sri.Jogendra Singh, who is the husband of eldest sister of the Accused-1 residing in United Kingdom, gifted Rs.25,000/- on their birthday through transfer from his Account with State Bank of India in United Kingdom to HUF Account No.01001715 of the Accused-1 with Corporation Bank. In support of this contention, the Accused-1 and 2 have relied upon Ex.D.7, Ex.P.27-Statement of Account standing in the name of the Accused-1 and Ex.D.26-Copy of E-mail with Letter of Corporation Bank. In Ex.D.7 at Page-6, the Accused-1 has stated about the said Gift. Ex.D.26 shows that Sri.Jogendra Singh gifted Rs.25,000/- to the children of the Accused-1 and 2 on 25.06.2010 through NEFT from his Account to the Account of the Accused-1. Ex.P.27 shows that the said amount was received by the Accused-1 through SB Account of HUF standing in his name. As such, 130 [Spl.C.C.112/2012-J] contents of all these documents support the contention of the Accused-1 and 2 about the said Gift. Though this Gift has not been intimated by the Accused-1 to the Government as required under the Rules, as there is documentary evidence to show the said Gift and as there is nothing on behalf of the Complainant to disbelieve the same, it has to be held that Sri.Jogendra Singh gifted Rs.25,000/- on 25.06.2010 to the children of the Accused- 1 and 2. As this amount has been received by the Accused-1 during the Check Period and as the Complainant has not taken the same into account, the said amount has to be taken as Receipt during the Check Period. Accordingly, it is held that the Accused-1 received Rs.25,000/- from Sri.Jogendra Singh towards Gift to his children during the Check Period.
3.5.9: Amount Taken from Smt.Parminder Kaur towards Stamp Charges & Registration Charges
144. According to the Accused-1 and 2, on 15.06.2009, the Accused-1 received Rs.20,000/- temporarily from his elder sister-Smt.Parminder Kaur towards Stamp Charges and Registration Charges relating to Greater Noida Plot. In support of their contention, the Accused-1 and 2 have relied upon the evidence of D.W.1 and D.W.2 and contents of Ex.P.5, Ex.D.7 and Ex.D.40. D.W.1 and D.W.2 cannot have any personal knowledge about the said transaction as they were not present during 131 [Spl.C.C.112/2012-J] the said transaction. Ex.D.40 is the Affidavit of Smt.Parminder Kaur. As Smt.Parminder Kaur has not come forward to give evidence and as the contents of Ex.D.40 did not undergo the test of Cross-examination on behalf of the Complainant, reliance cannot be placed on that document. In Ex.D.7 at Page-6, though it is stated that Loan of Rs.20,000/- was taken from the brother-in-law of the Accused-1 on 15.06.2009 for Stamp Charges, it is not stated that the said Loan was taken from Smt.Parminder Kaur. According to the Accused-1, he has also made a note about that transaction in Ex.P.5. Ex.P.5 is a Note Book seized by the Complainant on 16.12.2010. Pages-6 to 8 of this document show some entries relating to expenses pertaining to Greater Noida Plot from 02.07.2002 to 25.07.2010. Overleaf Pages of this document, except that of Page-6, are left blank. But, in the overleaf of Page- 6, there is only one entry dated 15.06.2009 relating to Stamp Charges, Other Expenses, Cash Savings, Rent Savings etc. In that entry, it is also written as 'Loan from Jijajee-20,000/-'. According to the Accused-1 and 2, the said entry is regarding temporary loan taken from Smt.Parminder Kaur. There are over writings in the said entry dated 15.06.2009. On considering all the entries of this Book, it is clear that entries are not made in usual course as and when things occurred. If the said entry relating to 15.06.2009 had been made in the usual course, i.e., when the Accused-1 took temporary loan, it should have been made in Page-7. But, it is not made. As 132 [Spl.C.C.112/2012-J] observed above, House of the Accused-1 was searched and Inventory was taken on 13.08.2010. On considering the above facts and circumstances relating to the entries in Ex.P.5, it appears that anticipating this case to be filed for the offence of Disproportionate Assets, the Accused-1 might have prepared Ex.P.5 to suit his convenience. As such, it is not safe to rely upon the said entry in Ex.P.5. There is no other evidence to show that the Accused-1 received temporary loan of Rs.20,000/- from Smt.Parminder Kaur. Though it is the contention of the Accused-1 and 2 that the said amount was taken temporarily, there is nothing to show that the Accused-1 repaid that amount to Smt.Parminder Kaur. Furthermore, borrowing of that amount is not intimated to the Government as required under the Rules. For all these reasons, it is clear that preponderance of probabilities is not in favour of the Accused-1 and 2 to believe that the Accused-1 borrowed Rs.20,000/- on 15.06.2009 from Smt.Parminder Kaur. Hence, it is held that the Accused-1 and 2 failed to prove the said receipt of Rs.20,000/- during the Check Period.
3.5.10: Reimbursement Of News Paper Bill To The Accused-1
145. According to the Accused-1 and 2, during the Check Period, the Accused-1 received Rs.5,953/- from his Office towards reimbursement of News Paper Bill and the said Income is left out by the Complainant. The Accused-1 133 [Spl.C.C.112/2012-J] has informed the said fact in Ex.D.7. Contents of Ex.D.22, which is the Letter dated 08.07.2013 issued from the Office of the Accused-1, show that the Accused-1 received Rs.5,953/- during the Check Period towards reimbursement of News Paper Bill. There is nothing on behalf of the Complainant to disbelieve the said document. But, as the reimbursement is made to the Accused-1 for having paid News Paper Charges by him and as the said expenditure is not taken separately under non-verifiable expenditure, it is not necessary to consider the said amount as Income during the Check Period. As such, it appears that the Complainant has not considered this Receipt. Hence, claim of the Accused-1 and 2 to include the said amount of Rs.5,953/- received towards reimbursement of News Paper Bill as Receipt or Income during the Check Period is rejected.
3.5.11: Interest Accrued in SB A/c.
No.035701502689 Of The Accused-1
146. According to the Accused-1 and 2, the Accused- 1 had opened SB Account No.035701502689 at ICICI Bank, Vadodara and he earned Interest of Rs.3,553/- from that Account during the period from 16.11.2006 to 19.11.2007 and after transfer to Bengaluru, he closed that Account. According to the Accused-1 and 2, the said Income of Rs.3,553/- during the Check Period has been 134 [Spl.C.C.112/2012-J] left out by the Complainant. Ex.D.16 is the Interest Certificate issued by ICICI Bank relating to his SB Account No.035701502689. As per this document, the Accused-1 earned Interest of Rs.524/- during the period from 01.04.2006 to 31.03.2007 and Rs.1,548/- during the period from 01.04.2007 to 31.03.2008. As such, according to Ex.D.16, Interest earned by the Accused-1 from 01.04.2007 to 31.03.2008 is Rs.2,072/- only and not Rs.3,553/- as claimed by the Accused-1 and 2. As the said Interest of Rs.2,072/- earned by the Accused-1 is an Income during the Check Period and as the Complainant has not taken that amount into account, it is necessary to take the said Income as Income of the Accused-1 during the Check Period. Hence, it is held that the Accused-1 earned Income of Rs.2,072/- as Interest from SB Account No.035701502689 during the Check Period.
3.5.12: Interest Accrued in SB A/c.
No.00331000135222 Of The Accused-2
147. According to the Accused-1 and 2, in the SB Account No.00331000135222 of the Accused-2, an Interest of Rs.922/- is received during the Check Period, which has been left out by the Complainant. Ex.D.14 is the Statement of Account issued by HDFC Bank relating to that SB Account standing in the name of the Accused-2. As per that document, the Accused-2 has earned Interest of Rs.345.11, Rs.213.48, Rs.131.79, Rs.75.91, Rs.47.71, Rs.47.77, Rs.47.14 and Rs.17.55 i.e., in all Rs.926.46, 135 [Spl.C.C.112/2012-J] which is rounded off to Rs.926/-, during the Check Period. As this Interest accrued is an Income to the Accused-2 during the Check Period and as the Complainant has not taken this Income into account, it is necessary to add this Income in Statement-C. Accordingly, it is held that the Accused-2 earned Income of Rs.926/- by way of Interest from SB Account No.00331000135222 during the Check Period.
3.5.13: Amount Given By The Mother Of The Accused-2 To The Accused-2
148. According to the Accused-1 and 2, the mother of the Accused-2 gave Rs.2.5 Lakhs to the Accused-2 on 03.09.2009 through Demand Draft by debiting an amount of Rs.2,50,689/- including DD Charges of Rs.689/- to her Account with Central Bank of India, Bilaspur. P.W.37, who is the father of the Accused-2, has deposed the said fact in his Cross-examination. Ex.D.5 is the Statement of Account relating to the Account of the mother of the Accused-2 with Central Bank of India, Bilaspur. As per this document, a sum of Rs.2,50,689/- has been debited to the said Account on 03.09.2009. Ex.D.5(a) is the relevant entry in that document. Ex.D.5(b) is the Copy of Demand Draft dated 03.09.2009, which shows that a Demand Draft was purchased for Rs.2,50,000/- in the name of the Accused-2 at Central Bank of India, Bilaspur, payable at Bengaluru. Ex.P.45 is the Statement of Account relating to the SB Account of the Accused-2. As per this document, on 136 [Spl.C.C.112/2012-J] 11.09.2009, the Accused-2 has encashed that Demand Draft for Rs.2,50,000/-. As such, contents of all these documents fortify the evidence of P.W.37, which supports the contention of the Accused-1 and 2. Though Receipt of this amount is not intimated by the Accused-1 and 2 to the Government as per Rules, as there is documentary evidence to show the Receipt of the said amount and as there is nothing on behalf of the Complainant to show that the said amount is an illegal Income of the Accused-1 and 2, it has to be inferred that the Accused-2 has received the said amount of Rs.2,50,000/- from her mother legally during the Check Period. As the said Receipt of Rs.2,50,000/- by the Accused-2 is an Income to her during the Check Period and as the Complainant has not taken that Income into the account, it is necessary to consider the said Receipt as Income during the Check Period. Accordingly, it is held that the Accused-2 received Rs.2,50,000/- from her mother during the Check Period.
3.5.14: Receipts From Sale Of Shares Of The Accused-1
149. According to the Accused-1 and 2, the Accused- 1 had purchased Shares of ACC Ltd., BEML Ltd., JSW Steel Ltd., Oriental Bank, SPIC and through sale of those Shares, he received Rs.1,40,000/- during the Check Period and the Complainant has not taken the said Income into account. Ex.D.11 is the Ledger Extract issued by India 137 [Spl.C.C.112/2012-J] Infoline Security Private Ltd. Contents of this document show that the Accused-1 owned Shares and that out of sale of those Shares, he received Rs.62,000/- on 23.09.2005, Rs.50,000/- on 24.10.2005 and Rs.28,000/- on 07.11.2005 i.e., in all Rs.1,40,000/- in the year 2005. Ex.P.23 shows that the Accused-1 received the said amount through his SB Account. As such, contents of these documents fully support the contention of the Accused-1 and there is nothing on behalf of the Complainant to disbelieve the said evidence available on behalf of the Accused-1 and 2. As such, it is clear that out of sale of Shares during the Check Period, the Accused-1 received Rs.1,40,000/-, but, the Complainant has not taken said Income into consideration. As this Income of the Accused-1 is an Income received during the Check Period, it requires to be taken into consideration. Hence, it is held that the Accused-1 received Rs.1,40,000/- from Sale of his Shares during the Check Period.
3.5.15: Receipts From Sale Of Shares Of The Accused-2
150. According to the Accused-1 and 2, by sale of Shares held by the Accused-2 on 07.11.2005, she received Rs.30,000/- and the Complainant has not considered the said Income. Ex.D.13 is the Ledger Extract issued by India Infoline Security Private Ltd. Ex.D.14 is the Statement of Account relating to the Account of the Accused-2 maintained with HDFC Bank. Contents of these documents 138 [Spl.C.C.112/2012-J] show that the Accused-2 received Rs.30,000/- on 07.11.2005 towards sale of Shares. There is nothing on behalf of the Complainant to disbelieve the said evidence available on behalf of the Accused-1 and 2. As such, it is clear that the Accused-2 received Rs.30,000/- on 07.11.2005 from the sale of her Shares. As the said Income is the Income during the Check Period and as the Complainant has not considered the said Income, it is necessary to take into consideration of the said Income as the Income during the Check Period. Hence, it is held that the Accused-2 received Rs.30,000/- from sale of her Shares during the Check Period.
3.5.16: Maturity Amount Of LIC Policies Of P.W.37-Sri.R.S.Wadhwa
151. According to the Accused-1 and 2, father of the Accused-2 i.e., P.W.37 had taken 2 LIC Policies for his 2 daughters-the Accused-2 and Smt.Sarabjeet Kaur keeping them as nominees and on maturity, he received Rs.3,73,400/- against each of those Policies on 26.06.2009 and he gave the same to his daughters and as such, the Accused-2 received Rs.3,73,400/- from her father, which is not taken into consideration by the Complainant. In his Cross-examination, P.W.37 has deposed that he has received LIC maturity amount of Rs.3,73,400/- each on 2 Policies on 26.06.2009 and that he gave the said amount to his daughters. Ex.D.4 is the Extract of Details given by LIC. As per this document, P.W.37 had taken 2 Policies for Rs.2,00,000/- each in the year 1994 by making the 139 [Spl.C.C.112/2012-J] Accused-2 and Smt.Sarabjeet Kaur as nominees and on 26.06.2009, he received Rs.3,73,400/- from each of those 2 Policies. As such, contents of Ex.D.4 support the evidence of P.W.37 that he received LIC maturity amount on 26.06.2009. But, the said document does not show payment of the said amount to the Accused-2. There is nothing on behalf of the Accused-1 and 2 to show that P.W.37 gave the said amount of Rs.3,73,400/- to the Accused-2. In fact, they have not stated the said fact in Ex.D.7. Even the said Income is not shown in Ex.D.8(a). As the giving of the said amount by P.W.37 to the Accused-2 amounts Gift exceeding Rs.7,000/-, it is mandatory on the part of the Accused-1 to intimate the same to the Government as per the Rules and if at all the Accused-2 had received such a huge amount as Gift, the Accused-1 would have informed the same. But, the Accused-1 has not done so. For all these reasons and in the absence of supporting evidence to show the payment of the amount by P.W.37 to the Accused-2, it is not possible to accept the bare Statement of P.W.37 and the contention of the Accused-1 and 2 that the Accused-2 received Rs.3,73,400/- during the Check Period. Hence, it is held that the Accused-1 and 2 have failed to prove the said Receipt of Rs.3,73,400/-.
3.5.17: Amount Given Temporarily By Sri.M.S.Sandhu To The Accused-2 For Mortgage Of Flat
152. According to the Accused-1 and 2, as the 140 [Spl.C.C.112/2012-J] Accused-2 wanted to stay back at Bengaluru for another 2 years for the purpose of education of her children after transfer of the Accused-1, which was due in the summer of 2010, the Accused-2 took Rs.2,50,000/- from Sri.M.S.Sandhu, who is the father of the Accused-2, for the purpose of taking a Flat at Bengaluru through Purchase or Mortgage as a temporary measure. According to the Accused-1 and 2, the Accused-2 took this amount apart from Rs.7,00,000/- taken by her from P.W.38. In support of this contention, the Accused-1 and 2 have relied upon the evidence of D.W.2, Ex.D.36 and Annexures-A-6.1 & A- 6.2 filed along with Statement under Section 243(1) of the Cr.P.C. As observed above, while dealing with 'Cash Seized from the Residence of the Accused-1' under the Head-'2.5', this Court has observed that though Annexures-A-6.1 & A-6.2 indicate that the Accused-1 was due for transfer during 2010-2011, he was not transferred during that year and that the Accused-1 and 2 have failed to prove the Receipt of Rs.7,00,000/- from P.W.38 as a temporary measure for the purpose of purchasing Flat or taking the Flat on Mortgage or Lease.
153. In his evidence, except stating that he is producing Affidavit of his father as per Ex.D.36 for having sworn to by his father stating that he has given Rs.2.5 Lakhs to the Accused-2 for purchasing a Flat, D.W.2 has not stated anything about actual payment of Rs.2.5 Lakhs to the Accused-2. In Ex.D.36, which is said to be prepared 141 [Spl.C.C.112/2012-J] on 05.05.2010, it is stated to the effect that Sri.M.S.Sandhu was giving Rs.2.5 Lakhs to the Accused-2 for purchasing a Flat and that the said Affidavit was made for the purpose of Record. Why a Record was necessary on 05.05.2010 itself is not made clear. If at all, Sri.M.S.Sandhu wanted a Record for having given the said amount, he would have given the said amount either through DD or Cheque or he could have obtained a Receipt from the Accused-2, instead of taking the risk of going to a Notary, spending Rs.100/- to purchase Stamp Paper, apart from meeting the Notary's fee. There is no clarity as to when actually and how Sri.M.S.Sandhu gave that amount to the Accused-2. All these circumstances create a serious doubt about the genuineness of contents of Ex.D.36. Furthermore, as Sri.M.S.Sandhu did not come forward to give evidence and to undergo test of Cross-examination about the contents of Ex.D.36, Ex.D.36 has no value and it cannot be relied upon.
154. Though it is contended by the Accused-1 and 2 that the said amount was taken as temporary measure, it is not explained by them as to whether the said amount was returned to Sri.M.S.Sandhu, if so, when it was returned. It is pertinent to observe here that, though Sri.M.S.Sandhu gave his Statement in writing to P.W.43 as per Ex.P.69, he has not whispered anything in that document about payment of said amount of Rs.2,50,000/- to the Accused-2 for the purpose of purchasing the Flat.
142 [Spl.C.C.112/2012-J] Even in Ex.D.7, the Accused-1 and 2 have not stated about that amount. Furthermore, as the said receiving of amount by the Accused-2 temporarily amounts to loan, the Accused-1 ought to have intimated the same to the Government as per the Rules, if at all, there was such transaction. But, the Accused-1 has not done so. Under these circumstances, it is not safe to believe the bare contention of the Accused-1 and 2 about receiving of said amount of Rs.2,50,000/- from Sri.M.S.Sandhu. For all these reasons, it is clear that preponderance of probabilities is not in favour of the Accused-1 and 2 to believe the said transaction. Accordingly, it is held that the Accused-1 and 2 failed to prove the Receipt of said amount of Rs.2,50,000/- during the Check Period.
3.5.18: Amount Given By Sri.M.S.Sandhu To The Accused-2
155. According to the Accused-1 and 2, father of the Accused-1, i.e., Sri.M.S.Sandhu owns a Bungalow at Bhatinda given on rent, 10 acres of fertile irrigated land and inherited House at Raniwala. According to the Accused-1 and 2, in addition to the Agricultural and Rental Income, Sri.M.S.Sandhu has Income from his Investments, Consultancy on Building Construction and Miscellaneous Income, he is an Income Tax Assessee filing Income Tax Returns regularly and as inherited property was not divided among the Accused-1 and D.W.2, Sri.M.S.Sandhu 143 [Spl.C.C.112/2012-J] taken as his moral duty to extend financial help to his children out of income from inherited property and thus, he has paid Rs.3,50,000/- to the Accused-2 for better education and upbringing of her children and as such, the said Income of Rs.3,50,000/- is an Income to the Accused- 2 during the Check Period. In Ex.D.7 also, the Accused-1 and 2 have taken such contention. To substantiate the said contention, the Accused-1 and 2 have relied upon the evidence of D.W.2 and contents of Ex.P.69, Ex.D.28, Ex.D.28(a), Ex.D.33(a) and Ex.D.35.
156. As per Ex.P.69, said Sri.M.S.Sandhu has given a Statement before the Investigating Officer that he has paid around Rs.3.5 Lakhs to the Accused-2 from 2005 to 2010. Details of the said payment as to when actually and how the said payments are made are not stated in that document. Even the Accused-1 and 2 have not given the said details. Sri.M.S.Sandhu has not come forward to give evidence to substantiate his Statement as well as the contention of the Accused-1 and 2.
157. D.W.2 has deposed that his father has Irrigated Lands measuring more than 10 acres, his father is an Income Tax Assessee, he has filed Income Tax Returns and that he has given around Rs.3.5 Lakhs to the Accused- 1 during 2005-2010. He has also not given the details as to when actually and how the said amount of Rs.3.5 Lakhs was given to the Accused-1. However, it is not his evidence that his father gave that amount to the Accused-
144 [Spl.C.C.112/2012-J] 2 for education and upbringing the children of the Accused-1 and 2, as contended by the Accused-1 and 2. This circumstance indicates that D.W.2 has no knowledge about the alleged payment of Rs.3.5 Lakhs to the Accused-
2.
158. Ex.D.28 is the General Power of Attorney said to have been executed by Sri.M.S.Sandhu in favour of D.W.1 on 4.1.2002. Ex.D.28(a) is the Translated Copy of Ex.D.28. Ex.D.33(a) is the Translated Copy of Ex.D.33. Ex.D.33(a) indicates that Sri.M.S.Sandhu is the owner of 80K-16M land. The said Land measures around 10 acres. Ex.D.35 contains Copies of Acknowledgements in respect of Income Tax Returns said to have been filed by Sri.M.S.Sandhu for the Assessment Years 2006-2007 to 2012-2013. None of these documents show payment of any amount to the Accused-2 much less Rs.3,50,000/- by Sri.M.S.Sandhu. Though the Accused-1 and 2 have produced Affidavit of Sri.M.S.Sandhu as per Ex.D.36 to show payment of Rs.2,50,000/-, as mentioned in the Head-'1.5.7', no such document is taken to show the alleged payment of Rs.3,50,000/- to the Accused-2.
159. As observed above, while dealing with the Head-'1.5.7'-Cash on Hand with the Accused-2', this Court has observed that Sri.M.S.Sandhu borrowed Rs.45,000/- from the Accused-1 and 2 in the year 1997 and that he took 10 years to repay the said amount and that as such, he was not financially sound. This 145 [Spl.C.C.112/2012-J] circumstance creates a serious doubt about the income of Sri.M.S.Sandhu as contended in Ex.D.35 and his capacity to pay Rs.3,50,000/- to the Accused-2.
160. Even otherwise, if Face Value of Ex.D.35 is considered, the Income of Sri.M.S.Sandhu from all the sources comes to Rs.23 Lakhs during the Check Period. But, Salary Income of the Accused-1 during the Check Period is around Rs.30 Lakhs and Income claimed to have been earned by the Accused-2, as per her Income Tax Returns during that period, is around Rs.14 Lakhs. As such, the Income of the Accused-1 and 2 during the Check Period will be around Rs.44 Lakhs as claimed by them. As the Accused-1 and 2 had an Income of around Rs.44 Lakhs during the Check Period as against the Income of Sri.M.S.Sandhu at around just Rs.23 Lakhs only, it is impossible to believe that the Accused-1 and 2 received around Rs.3,50,000/- from Sri.M.S.Sandhu for education purpose during the Check Period.
161. Payment of Rs.3,50,000/- by Sri.M.S.Sandhu to the Accused-2 during the Check Period amounts to payment of around Rs.70,000/- p.a. If at all the Accused- 2 had received that amount, the Accused-1 ought to have informed the same to the Government as per the Rules as it exceeds Rs.7,000/-. But, he has not done so. If at all the Accused-2 had received such an amount, she could have included the same in her Income Tax Returns. But, 146 [Spl.C.C.112/2012-J] she has not done so. This circumstance also goes against the Accused-1 and 2.
162. On considering all the above facts, circumstances, the evidence available on record and in the absence of any acceptable material on behalf of the Accused-1 and 2, it is impossible to accept the bare contention of the Accused-1 and 2 that the Accused-2 received Rs.3,50,000/- from Sri.M.S.Sandhu during the Check Period. Hence, it is held that the Accused-1 and 2 have failed to prove the receipt of Rs.3,50,000/- from Sri.M.S.Sandhu during the Check Period.
3.5.19: Amount Given By Smt.Parminder Kaur
163. According to the Accused-1 and 2, Smt.Parminder Kaur i.e., the elder sister of the Accused-1 gave Rs.25,000/- in April 2009 and Rs.49,000/- in May 2010 i.e., in all Rs.74,000/- to the Accused-2 towards Educational Expenses of Ms.Harshita i.e., the elder daughter of the Accused-1 and 2 and as such, the Accused-2 received Rs.74,000/- during the Check Period, which has been left out by the Complainant. In Ex.D.7 also, such contention is taken by the Accused-1 and 2. In support of their contention, the Accused-1 and 2 have relied upon the evidence of D.W.2 and Ex.D.40.
164. In his evidence, D.W.2 has deposed about production of Affidavit as per Ex.D.40, which is sworn to by 147 [Spl.C.C.112/2012-J] Smt.Parminder Kaur, regarding Educational Expenses of Rs.25,000/- and Rs.49,000/- met by her in the months of April 2009 and May 2010 respectively. But, it is not his evidence that Smt.Parminder Kaur paid the said amount to the Accused-2. In fact, it is not his evidence that he was present when the said amount was paid by Smt.Parminder Kaur or he has personal knowledge about the said payments. He has also not stated as to how and in what manner the said amount was paid by Smt.Parminder Kaur. Hence, the evidence of D.W.2 is of no assistance to the Accused-1 and 2 to substantiate their contention.
165. Ex.D.40 is said to be the Affidavit sworn to by Smt.Parminder Kaur. In that Affidavit, it is stated that she paid Cash of Rs.25,000/- in April 2009 and Cash of Rs.49,000/- in May 2010 to Sri.J.S.Sandhu-Accused-1. It is not stated in that Affidavit that she paid the said amount to the Accused-2 as contended by the Accused-1 and 2. Smt.Parminder Kaur has not come forward to give evidence and to undergo the test of Cross-examination on behalf of the Complainant about the contents of the said Affidavit. As admitted by in Ex.D.40 itself, the said Affidavit is prepared to produce before this Court. As such, it is not safe to rely upon the Ex.D.40 to appreciate the contention of the Accused-1 and 2, which is prepared only for the purpose of this case.
166. As per the contention of the Accused-1 and 2 and contents of Ex.D.40, due to love and affection towards 148 [Spl.C.C.112/2012-J] Ms.Harshita, Smt.Parminder Kaur has paid that amount. As such, the said payment amounts to Gift. As the said amount exceeds Rs.7,000/-, it is mandatory on the part of the Accused-1 to report the same to the Government, if at all, such an amount was received from Smt.Parminder Kaur. But, the Accused-1 has not done so. Under all these circumstances, the only inference that could be drawn is that the Accused-2 has not received any such amount from Smt.Parminder Kaur. Hence, it is held that the Accused-1 and 2 have failed to prove the Receipt of Rs.74,000/- during the Check Period as contended by them.
3.5.20: Birthday Gifts Of Rs.19,000/-
Deposited In Corporation Bank
167. According to the Accused-1 and 2, the Accused- 2 received Rs.19,000/- as Gift on account of Birthday of her twin children, which falls on 26th June and the said amount has been deposited at the time of opening of HUF Account with Corporation Bank on 31.07.2009 and though the same was informed by the Accused-1 to P.W.43, the said amount has not been taken into consideration as Income during the Check Period. In support of this contention, the Accused-1 and 2 have relied upon Ex.P.27 and Ex.D.7.
168. In Ex.D.7, the Accused-1 has taken the said contention that Rs.19,000/-, which is accumulated amount on account of Birthday Gifts received by the Accused-2 on 149 [Spl.C.C.112/2012-J] birthday of twin children of the Accused-1 & 2, was deposited in HUF Account of Corporation Bank on 31.07.2009. Ex.P.27 consists of documents relating to the said HUF Account opened in the name of the Accused-1 and his children. The said documents also show that at the time of opening of the said Account on 31.07.2009, Rs.19,000/- was deposited in that Account. However, the said documents do not show about receipt of Gifts as contended by the Accused-1 and 2. No doubt, documents relating to such Gifts cannot be expected. But, as the said Gift amount exceeds Rs.7,000/-, it is mandatory on the part of the Accused-1 to inform the same to the Government. If at all, such an amount of Gift was received by his children, the Accused-1 would have intimated the same to the Government. As he has not done so, it has to be inferred that no such amount was received as Gift. Hence, it is held that the Accused-1 and 2 have failed to prove the said Gift of Rs.19,000/- during the Check Period.
3.5.21: Gift Received By The Accused-2 & Her Daughter On Their Birthday
169. According to the Accused-1 and 2, birthday of the Accused-2 and her daughter falls on 7th September and the Accused-2 received Rs.20,000/- each from Sri.Balwinder Singh i.e., uncle of the Accused-1 and Smt.Kamal Wadhwa i.e., Bhabhi of the Accused-2 in the year 2006-2007. In support of their contention, the 150 [Spl.C.C.112/2012-J] Accused-1 and 2 have relied upon the evidence of D.W.1 and Page-65 of Ex.P.7. In his evidence, D.W.1 has stated that the Accused-2 received Gift of Rs.40,000/- in the year 2006-2007 as reflected in Ex.P.7 at Page-65. This witness has no personal knowledge of the said Gift and he has given his Statement on the basis of Ex.P.7. Ex.P.7 is a File seized by P.W.43 on 16.12.2010 during Search and Inventory. Page-65 is a Sheet in that File titled as 'Capital Statement of the Accused-2'. In this document, it is stated that during 2006-2007, the Accused-2 received Gift of Rs.40,000/-. No basis is shown for making such an entry in that document. Details of the said Gift are not mentioned in that document. The said document is neither a public document nor a Certified Copy of it. It is just a typed Copy and it does not contain even the signature and date. On scrutiny of the contents of that document, it is clear that the entries are not made in usual course as and when transactions shown in that document took place. As observed above, Search and Inventory was conducted in the House of the Accused-1 and 2 prior to 16.12.2010 i.e., on 13.08.2010 itself and at that time, Cash of Rs.7,00,000/- was seized from that House. As such, it appears that anticipating one more raid and filing of this case, the Accused-1 and 2 have prepared the said Capital Statement without any basis, but to suit to their convenience. Hence, it is not safe to rely upon on that document alone to appreciate the contention of the Accused-1 and 2. Said Sri.Balwinder Singh and Smt.Kamal 151 [Spl.C.C.112/2012-J] Wadhwa have not come forward to give evidence in support of the Accused-1 and 2. Nothing is said in Ex.D.7 about the said Gift. Though the said amount exceeds Rs.7,000/-, the Accused-1 has not reported about that Gift to the Prescribed Authority. On considering all these facts and circumstances and in the absence of supporting evidence, it is not possible to accept the bare contention of the Accused-1 and 2 that the Accused-2 received Gift of Rs.40,000/- as alleged. Hence, claim of the Accused-1 and 2 about Receipt of Rs.40,000/- by way of Gift during the Check Period is rejected.
3.5.22: Gift Received By The Accused-2 From Her Relatives On Anniversary, Festivals, Family Functions, Marriages etc.
170. According to the Accused-1 and 2, the Accused- 2 received Rs.41,000/- during the Check Period as Gift on her Birthday, Anniversary, Festivals and Family Functions mainly Marriages and though the same has been informed to P.W.43 in Ex.D.7, the said Income is not considered by him. In Ex.D.7, a contention is taken by the Accused-1 about receipt of that Gift. The Accused-1 and 2 have relied upon the evidence of P.W.38 in support of their contention. But, P.W.38 has not stated in his evidence anything about that Gift of Rs.41,000/- received by the Accused-2. However, he has stated that he has given Gift to his sister. Except this Statement, P.W.38 has not stated any details about the Gift said to have been given by him to the 152 [Spl.C.C.112/2012-J] Accused-2. Details about date of Gift and from whom the said Gift is received are not given by the Accused-1 and 2. It is also not explained as to what was the basis to the Accused-1 and 2 to say specifically that the said Gift amount is Rs.41,000/- during the entire Check Period. Furthermore, no intimation is given about receipt of that Gift to the Prescribed Authority by the Accused-1. Though it is not possible to expect Bills or other documents about such Gift, nothing prevented the Accused-1 to report about the said Gift to the Prescribed Authority as per the Rules, if at all the Accused-2 had received the said Gift. If he had intimated the same, he would not have come into trouble in this manner. As observed above, Presentations, Gifts etc., are not one sided and if any person receives Presentations or Gifts from any other person, normally he will also make Presentations or Gifts to that person at the time of giving Gift itself or in the functions relating to that person. Though the Accused-1 and 2 have contended that they have received Gifts on several occasions, they have not whispered anything about Presentations and Gifts from their side to others. Having regard to all these facts and circumstances and in the absence of acceptable material on behalf of the Accused-1 and 2, it is not possible to accept the bare contention of the Accused-1 and 2 that the Accused-2 received Rs.41,000/- as Gift during the Check Period. Hence, it is held that the Accused-1 and 2 have failed to prove the said Gift of Rs.41,000/- during the Check Period.
153 [Spl.C.C.112/2012-J] 3.5.23: Sale Proceeds Of Old Household Items
171. According to the Accused-1 and 2, by selling Household old Items namely TV, Washing Machine, Wooden Almirah and Chairs during the Check Period, the Accused-1 received Rs.14,500/- and though the said fact was informed in Ex.D.7, P.W.43 has not considered the same as Income. It is true that in Ex.D.7, the Accused-1 has mentioned about the said Income. But, it is not explained as to when actually the said Items were sold and that to whom those Items were sold. No supporting documents are also produced in this regard. No intimation is given to the Prescribed Authority by the Accused-1 about this Income also. Under these circumstances, it is not possible to believe that the Accused-1 received Rs.14,500/- by selling Household old Items. Hence, it is held that the Accused-1 and 2 have failed to prove the said Income of Rs.14,500/- from the Sale Proceeds from the old Household Items.
3.5.24: Sale Proceeds Of Gold Ornaments
172. According to the Accused-1 and 2, the Accused- 2 received 45 Tolas of Gold Ornaments as Gift on her marriage and birthday of children and by selling the same, she received Rs.70,500/- during the Check Period. In order to substantiate the said contention, the Accused-1 and 2 have relied upon the evidence of P.W.37 and D.W.2 154 [Spl.C.C.112/2012-J] and also Ex.P.7, Ex.D.7, Ex.D.37 and Ex.D.38. In Ex.D.7 and Ex.P.7, the Accused-1 and 2 have taken such a contention. But, the details of the said sale are not given by the Accused-1 and 2. Though P.W.37 has stated that he had given 10 Tolas of Gold Ornaments, his mother had also gifted 10 Tolas of Gold Ornaments, and that his wife had gifted 20 grams of Gold Chain during the marriage of the Accused-2 and birth of children of the Accused-1 and 2, he has not stated that those Gold Ornaments were sold by the Accused-1 and 2 for Rs.70,500/- during the Check Period. So also, though D.W.2 has stated that he has produced Affidavit as per Ex.D.37 and Ex.D.38 sworn to by his paternal uncle-Sri Balwinder Singh about giving of Gifts of Gold Ornaments to the Accused-2 and her children during the marriage of the Accused-2 and birth of her children, it is not his evidence that such Gold Ornaments were actually given to the Accused-2 in his presence. It is also not his evidence that the said Gold was sold by the Accused-1 and 2 during the Check Period. As father of D.W.2 and Sri.Balwinder Singh have not come forward to prove the contents of Ex.D.37 and Ex.D.38 and subject themselves for Cross-examination on behalf of the Complainant, Ex.D.37 and Ex.D.38 are not safe to be relied upon. No documents are produced about the said sale of Gold Ornaments. Normally, old Gold Ornaments will be sold while purchasing new Gold Ornaments and the price of old Gold Ornaments will be deducted from the price of new Gold Ornaments. Though, no Receipt will be 155 [Spl.C.C.112/2012-J] given normally for sale of old Gold Ornaments, the same will be mentioned in the Receipts for having purchased the new Gold Ornaments by sale or exchange of old Gold Ornaments. But, the Accused-1 and 2 have not produced any such evidence. Even the Accused-1 has not intimated about that transaction to the Prescribed Authority as per the Rules. Under all these circumstances, it is not safe to accept the bare contention of the Accused-1 and 2 that the Accused-2 received Rs.70,500/- by selling old Gold Ornaments. Hence, it is held that the Accused-1 and 2 have failed to prove the said Income of Rs.70,500/- from the sale of old Gold Ornaments during the Check Period.
3.5.25: Cost Of Staple Food Received
173. According to the Accused-1 and 2, due to self agricultural production of staple food, milk, cash crops etc., in the village of the Accused-1, the said items were brought from that village for self use of the family of the Accused-1, which in monetary term amounts to Rs.8,000/- p.a., and thus, the Accused-1 received financial support of Rs.40,000/- approximately by way of Staple Food during the Check Period. Except a bare Statement in the Written Statement filed under Section 243(1) of the Cr.P.C., there is no supporting material to substantiate their contention. There is nothing to show that family of the Accused-1 was producing such food items. The village of the Accused-1 is in Bhatinda District. The Accused-1 was working in 156 [Spl.C.C.112/2012-J] Vadodara from 01.08.2005 to 31.08.2006 and at Bengaluru from 01.09.2006 to 30.08.2010. The distance between Bhatinda and Vadodara is around 1200 K.Mtrs. and the distance between Bhatinda and Bengaluru is around 2500 K.Mtrs. Transporting such food items for such a long distance is difficult and costly affair. In fact, Transportation Charges may exceed the cost of the said food items. Under these circumstances, it is impossible to accept the bare contention of the Accused-1 and 2 that they received Income of Rs.40,000/- by way of receiving Staple Food from their village. Hence, it is held that the Accused-1 and 2 have failed to prove the said Income of Rs.40,000/- by way of receiving Staple Food from their village.
3.6: FINAL CALCULATION OF STATEMENT-C
174. In view of the above findings, Final Calculation of Receipts and Income during the Check Period is as under:
Sl. Amount
Details of Income
No. (In Rs.)
1. Net Salary of the Accused-1: 18,63,419
2. PF Withdrawal: 3,25,000
3. Rental Income: 5,83,300
4. Housing Loan from ICICI bank, 8,00,000
Vadodara:
5. Interest received during the Check 2,91,673
Period:
6. Bonds Redemption: 2,46,472
157 [Spl.C.C.112/2012-J]
7. Loan from LIC: 89,000
8. LIC Maturity Amount: 44,203
9. Refund from School: 30,000
10. Refund from School: 2,575
11. Refund from School: 15,500
12. Gift Received by the Accused-2 from 2,00,000
her Parents:
13. ICICI Prudential Withdrawal Amount: 1,55,000
14. Interest Accrued in the Account of the Accused-2 at Punjab & Sind 8,655 Bank, Bilaspur:
15. Payment made by Sri.Mohinder 1,63,274 Singh Sandhu:
16. Amount paid by Sri.Rajendra Singh Wadhwa/Smt.Seela Wadhwa: 1,16,717
17. LTC for 10 days Leave Encashment 22,676 made during 2010:
Total: 49,57,464
(As per findings given under the
Heads-3.1 to 3.4)
Items Left by the Complainant
18. Maturity Amount of NSC No.23375: 16,103
19. Amount returned by Smt.Satinder 75,000
Kaur:
20. Amount given by Sri.Jogendra Singh 52,700
towards School Fees:
21. Remuneration for attending Meeting 9,000
of BWC:
22. Amount transferred to HUF A/c. of 25,000
Accused-1 by Sri.Jogendra Singh:
23. Interest accrued in SB A/c.No. 2,072
A/c.035701502689 of ICICI Bank:
24. Interest accrued in SB A/c.No. 926
A/c.00331000135222 of HDFC
Bank:
158 [Spl.C.C.112/2012-J]
25. Amount given by mother of the 2,50,000
Accused-2:
26. Receipts from Sale of Shares of the 1,40,000
Accused-1:
27. Receipts from Sale of Shares of the 30,000
Accused-2:
Total: 6,00,801
(As per the findings given under the
Heads-3.5.1 to 3.5.25)
Grand Total: 55,58,265
(49,57,464 + 6,00,801)
Thus, it is clear that Receipts and Income of the Accused-1 and 2 during the Check Period is Rs.55,58,265/-. Accordingly, it is held that the Receipts and Income of the Accused-1 and 2 during the Check Period is Rs.55,58,265/-.
4. EXPENDITURE DURING THE CHECK PERIOD (STATEMENT-D)
175. According to the Complainant, as per Charge Sheet, expenditure incurred by the Accused-1 and 2 during the Check Period is Rs.49,59,570/-. However, by filing DA Calculation Table during the course of arguments, the learned Public Prosecutor has contended that expenditure incurred by the Accused-1 and 2 during the Check Period is Rs.41,96,348/-. Details of the said expenditure as per 159 [Spl.C.C.112/2012-J] Charge Sheet and as per DA Calculation Table of the learned Public Prosecutor are as under:
Amount Amount
Sl. As per As per DA
Details of Expenditure Charge Sheet Calculation
No.
(In Rs.) Table of P.P.
(In Rs.)
1. Household Expenditure: 11,00,449 11,00,449
2. Stamp Duty Expenditure of 1,19,100 1,19,100
Dwarka Flat:
3. Stamp Duty Expenditure of 77,550 77,550
Noida Property:
4. Association Payments at 1,500 1,500
Bengaluru:
5. Repayment of Housing Loan 5,76,636 5,76,636
of Dwarka Flat:
6. Insurance Premium Payment: 6,18,696 6,18,696
7. Education Expenditure-DPS, 7,63,050 7,63,050
Bengaluru:
8. Road Tax for Maruti-800: 2,220 2,220
9. Vehicle Maintenance: 57,940 -
10. Education Expenditure- 49,635 49,635
Brilliant, Chennai:
11. Education Expenditure-DPS, 21,750 21,750
Vadodara:
12. Education Expenditure- 32,430 32,560
Navarachana School,
Vadodara:
13. Vehicle Insurance Premium 6,266 5,854
paid at Bengaluru:
14. Maintenance Charges of 1,27,800 22,800
Dwarka Flat:
15. Maintenance of Demat 40,000 40,000
Account at Religare, New
Delhi:
16. Vehicle Insurance Premium 4,850 4,850
paid at Vadodara:
17. Telephone excess Charges 9,539 9,539
paid at Bengaluru:
18. Education Expenditure-NPS, 96,700 96,700
Bengaluru:
19. Payment made to 50,000 50,000
160 [Spl.C.C.112/2012-J]
Sri.M.S.Sandhu:
20. Locker Charges paid by the 3,459 3,459
Accused-2 to Punjab and Sind
Bank, Bilaspur:
21. Payment made to 6,00,000 6,00,000
Sri.Jayachandra Bhatti:
Total: 43,59,570 41,96,348
Except the expenditure shown in Items-1, 4, 7, 9 to 14, 17 and 19, the Accused-1 and 2 have not disputed the expenditure in respect of other Items. In fact, in Pages-63 to 72 of Annexure-A to their Written Arguments, the Accused-1 and 2 have admitted the claim of the Complainant so far as Items-2, 3, 5, 6, 8, 15, 16, 18, 20 and 21. As such, the dispute is now only in respect of Items-1, 4, 7, 9 to 14, 17 and 19.
4.1: Domestic/Household Expenditure
176. By contending that the Accused-1 received Gross Salary of Rs.33,01,347/- during the Check Period, the Complainant has taken 1/3rd of it i.e., Rs.11,00,449/- as Domestic/Household Expenditure of the Accused-1 during the Check Period. The Accused-1 and 2 have disputed the said calculation on the following grounds:
• The Complainant has considered Gross Salary instead of Net Salary to estimate the Domestic Expenditure without any basis, though he has taken Net Salary for the purpose of Income.
161 [Spl.C.C.112/2012-J] • There is no legal basis to apply the rigid formula of deducting 1/3rd of Salary Income towards Domestic Expenditure.
• Though the Accused-1 received arrears of Rs.5,53,768/- on account of 6th Pay Commission, he did not receive major portion of it i.e., Rs.5,25,260/- in Cash.
But, the Complainant has taken that amount also into account for computing Domestic Expenditure.
• On account of increase in the Salary of the Accused-1 to Rs.61,109/- in the month of October 2008 from Rs.34,721/- in the month of August 2008, there is no possibility of spending double the amount suddenly from the month of October 2008 onwards. But, without considering the said aspect, the Complainant has deducted 1/3rd of Salary Income straight away.
• Most of the food items were provided to the Accused-1 and 2 from their native place, clothes of the Accused-2 and her children were mostly gifted by parents and other relatives of the Accused-2, Telephone, Internet and Newspaper Expenses were borne by the Department, there were nil Medical Expenses due to CGHS facility etc. Besides, the Accused-1 mostly remained on 162 [Spl.C.C.112/2012-J] Tour, for which expenses were borne by the Department and hence, there was nil expenses of the Accused-1, rather Tour resulted into small savings by way of receipt of Daily Allowance. The Complainant has not considered this aspect also.
• The Accused-1 and 2 have spent minimum amount towards Domestic Expenditure by concentrating on Savings keeping in view the welfare and prospects of their children including marriage of their daughters.
177. Domestic/Household Expenditure means the expenses which will incur towards food items, fuel, electricity, clothes, medicine, magazines, wages of servants, barber, washer-man, pleasure trips, habits like smoking, drinks, hobbies etc., which are non-verifiable items. This expenditure depends upon size of the family, number of dependants, living standard of the family, living style of the family and status of the family. As such, keeping in view these factors, it is necessary to estimate the Domestic/Household expenditure.
178. The Accused-1 is a Group-A Officer consisting of his wife and 3 children. He has maintained luxury items like LCD TV, Refrigerator, Microwave Oven, Water Cooler, Washing Machine, Acquaguard, Car, Computer, Camera, Handicam, 2 Mobile Phones, Cots and other Furniture etc. 163 [Spl.C.C.112/2012-J] He has provided education to his children in reputed schools like Delhi Public School, National Public School, Brilliant Tutorials, etc. Ex.P.7 indicates that the Accused-1 and his family members traveled through Airplane several times. On considering all these facts, it is clear that the Accused-1 is leading a high profile luxury life.
179. Though it is natural and acceptable that relatives might have presented clothes to the Accused-1 and 2 and their children occasionally, it is impossible to accept the bare contention that most of the clothes of the Accused-2 and her children were gifted by parents and other relatives of the Accused-2, in the absence of supporting material. As observed above, Presentations and Gifts are reciprocal in nature and if family of the Accused-1 and 2 had received such Gifts, naturally they might have also given Presentations and Gifts to their relatives including the parents of the Accused-2. As observed above, the Accused-1 and 2 have not whispered anything about giving of such Gifts and Presentations by them. Under these circumstances, it is not at all fit to accept the bare contention of the Accused-1 and 2 about Gift of most of the clothes by parents and other relatives of the Accused-2.
180. As observed above, keeping in view the distance between the native place of the Accused-1 and 2 and the work places of the Accused-1 and in the absence 164 [Spl.C.C.112/2012-J] of any supporting material, it is not possible to accept the bare contention of the Accused-1 and 2 that most of the food items were provided to them from their native place.
181. Though CGHS facility is available to the Accused-1 and his family members in respect of Medical Expenses, that facility meets only the expenses of hospitalization, major medicine etc. That facility will not cover the expenses regarding conveyance, special diet and the expenses that may incur for minor ailments, such as headache, fever, cold, general pain etc., as Bills and Receipts will not be maintained in that regard. As such, it is necessary to spend money towards these expenses apart from availing CGHS facility towards Medical Expenses.
182. There is nothing to show that, while the Accused-1 was on Tour, his expenses were met by the Department. As the Department will pay TA and DA to the Public Servant to go on Tour on official work, Department will not meet the expenses of that Servant, while he is on Tour. It is a matter of common knowledge that TA and DA that will be paid by the Government to the Public Servant will not be in commensurate with the actual expenses that a Public Servant will incur on Tour outside his work place and that he has to spend some amount out of his pocket. As such, and in the absence of any supporting evidence, it is not possible to accept the bare contention of the 165 [Spl.C.C.112/2012-J] Accused-1 that there was 'nil' expenses of the Accused-1 and that on the other hand, he had savings out of DA.
183. Though the Department bears Telephone, Internet and Newspaper Expenses of Public Servant like the Accused-1, there is a limit for it and in case of use of those facilities in excess of that limit, the Accused-1 has to bear those excess charges. The Department normally bears landline Telephone Charges provided to the House of the Public Servant, that too for a limited extent and it will not bear charges of Mobile Phones. The Accused-1 possessed 2 Mobile Phones. The said Mobile Phone Charges have to be paid by the Accused-1 himself. Normally, apart from Newspapers, the persons like status of the Accused-1 and 2 subscribe for Magazines also and the said Magazine Charges have to be paid by the Accused-1 himself.
184. It is a matter of common knowledge that earlier Indians were of the saving attitude. But, now a days that too after entering into Globalization Era, Indians also have started to spend their money liberally. The Accused-1 and 2 have not placed any material to show their expenditure style. On the other hand, as observed above, the Accused- 1 and 2 are leading a luxurious high profile life. This circumstance negatives the contention of the Accused-1 and 2 that their Domestic Expenses were minimum.
166 [Spl.C.C.112/2012-J]
185. The Complainant has considered Gross Salary of the Accused-1 at Rs.33,01,347/- for estimating Domestic Expenses of the Accused-1. The said Gross Salary includes deduction of Income Tax, Provident Fund subscription, Life Insurance Premium etc., and that deduction amount will not come to the hands of the Accused-1 for spending. Only Cash on Hand will be available to spend towards Domestic Expenses. The learned Public Prosecutor has relied upon a Circular No.31/2013 dated 19.09.2013 issued by Policy Division of the Complainant. The said Circular contains Guidelines for investigation of Disproportionate Assets Cases. As per Clause-I [Page-4] of that Circular, Net Income after payment on account of deduction of Income Tax, GP Fund, House Rent etc., should be taken into consideration for the purpose of Computation of Income. As per Clause-1(xii) [Page-8] of the said Circular, Domestic Unverifiable Expenditure should be taken at 1/3rd of the Gross Salary as a last resort. No basis is shown for taking such 1/3rd of Gross Salary towards Domestic Expenses. As only Cash on hand will be available for spending, this method of considering Gross Salary for the purpose of Domestic Expenses appears to be unreasonable. In the case of Sajjan Singh -Vs- the State of Punjab, reported in AIR 1964 SC 464, relied upon by the learned Public Prosecutor, it is held as follows:
"...But, taking the most liberal view, we do not think it is possible for any 167 [Spl.C.C.112/2012-J] reasonable man to say that Assets to the extent of Rs.1,20,000/- is anything but disproportionate to a Net Income of Rs.1,03,000/- out of which atleast Rs.36,000/- must have been spent in living expenses."
(Underlined by this Court) On considering the above decision, it is clear that the Hon'ble Supreme Court of India has considered the Net Income of the Accused of that case to estimate Domestic Expenses. Keeping in view the said decision and in the absence of any legal basis for considering Gross Salary instead of Net Salary and the fact that only Cash on hand will be available for spending, it has to be held that consideration of Gross Salary by the Complainant for estimating Domestic Expenses of the Accused-1 is unreasonable. Hence, it is just, proper and reasonable to consider Net Salary of the Accused-1 to estimate his Domestic Expenses during the Check Period.
186. In the case on hand, as calculated in the Head- '3.1' of this Judgment, Net Salary of the Accused-1 during the Check Period is Rs.18,63,419/-. As per the evidence of P.W.15 and contents of Ex.P.22, Ex.P.34 and Ex.P.35, the Accused-1 received Rs.5,53,768/- as arrears on account of 6th Pay Commission during the Check Period and out of that amount, Rs.1,14,000/- was deducted towards Income Tax and Rs.3,62,260/- was deducted 168 [Spl.C.C.112/2012-J] towards GPF. As such, out of that arrears, the Accused-1 received only Rs.77,508/- as Net Arrears. As per the evidence of P.W.9, the Accused-1 has invested Rs.49,000/- in FD on 04.12.2008. Hence, the Net Cash remained with the Accused-1, out of the said entire arrears, for spending towards Domestic Expenses is Rs.28,508/- only. Under these circumstances, it is necessary to deduct Rs.49,000/-, which has been invested in FD after deduction of GPF and Income Tax from the arrears, referred to above, from the Net Salary Income of Rs.18,63,419/-. After such deduction, the Net Salary Income at the hands of the Accused during the Check Period comes to Rs.18,14,419/-.
187. In the Sajjan Singh's Case, referred to above, Net Income of the Accused was Rs.1,03,000/- and the Hon'ble Supreme Court has considered Rs.36,000/-, which is almost 35% i.e., more than 1/3rd of the Net Income, as Domestic Expenses. On considering the said decision and status, size of the family, living standard and style of living of the Accused-1 and 2, as noticed above, and in the absence of any acceptable evidence to the contrary on behalf of the Accused-1 and 2, it is just, proper and reasonable to consider 1/3rd of Net Salary Income of the Accused-1 towards his Domestic Expenses. On such consideration, Domestic Expenditure during the Check Period comes to Rs.6,04,806/-. Hence, it is held that Domestic/Household Expenditure of the Accused-1 during the Check Period is Rs.6,04,806/-.
169 [Spl.C.C.112/2012-J] 4.2: Association Payments At Bengaluru
188. According to the Complainant, the Accused-1 has spent Rs.1,500/- in all during the Check Period by paying Subscription Charges to the Residents' Welfare Association, CPWD Quarters, HSR Layout, Bengaluru. P.W.17-Sri.J.V.Jorapur was the Secretary of that Association in the year 2010 and he has produced Extract of Register of Payments as per Ex.P.42 before P.W.43. As per his evidence and contents of Ex.P.42, the Accused-1 has paid Rs.1,500/- in all from October 2006 to April 2010 at the rate of Rs.400/- p.a., to that Association. Payment of the said amount by the Accused-1 is not disputed by the Accused-1 and 2. But, according to them, as the said payment was made in small installments for over a period of 4 years and as the said payment is part of routine expenses, it has to be considered in the amount deducted already towards Domestic Expenditure. The said amount spent by the Accused-1 is a verifiable expenditure, which will not fall within the meaning of Domestic Expenditure, which is a non-verifiable expenditure. As per the claim made by the Accused-1 and 2, this Court has taken into account of very small portions of Interest such as Rs.17.55, Rs.47.14, Rs.47.77, Rs.47.71, Rs.75.91 etc., amounting to Rs.926/-, which accrued during the Check Period of 5 years, under the Head-'3.5.12', towards Income during the Check Period. As such, it is not proper to exclude the said amount of Rs.1,500/- spent by the 170 [Spl.C.C.112/2012-J] Accused-1 during the Check Period. Hence, it is held that the Accused-1 has spent Rs.1,500/- towards payment of Association Subscription Charges at Bengaluru during the Check Period.
4.3: Education Expenditure-DPS, Bengaluru
189. According to the Complainant, the Accused-1 spent Rs.7,63,050/- during the Check Period towards School Fees of his children, who were studying at Delhi Public School, Bengaluru. But, according to the Accused-1 and 2, the said expenditure is only Rs.5,73,750/- and the Investigating Officer has committed glaring manipulation and increased the expenditure by Rs.1,89,300/-. In order to substantiate their contentions, both the parties have relied upon Ex.P.70-Statement of Details of Payment of School Fee issued by Delhi Public School, Bengaluru. As per that Statement, during the Check Period, the Accused- 1 has paid School Fees of his children as under:
Amount Year Details (In Rs.) 2006-2007 One Time Admission Fee 1,57,500 2006-2007 Annual Fee 67,225 2006-2007 Bus Fee 13,000 2007-2008 Annual Fee 73,350 2007-2008 Bus Fee 34,500 2008-2009 Annual Fee 84,450 171 [Spl.C.C.112/2012-J] 2009-2010 Annual Fee 1,02,000 2009-2010 Bus Fee 19,500 2010-2011 Annual Fee 31,200 (Upto 11.06.2010 only) 2010-2011 Bus Fee 30,025 (Upto 11.06.2010 only) 2006-2007 Amount spent towards 11,000 to Books and Stationery @ 2010-2011 Rs.2,200/- p.a. Total: 6,23,750 Thus, it is clear that claims made by both the parties under this Head are incorrect and that actual amount spent by the Accused-1 is Rs.6,23,750/- only. Hence, it is held that Education Expenditure relating to DPS, Bengaluru, during the Check Period is Rs.6,23,750/-.
4.4: Vehicle Maintanance-Maruti 800
190. According to the Complainant, the Accused-1 has spent Rs.57,940/- towards Maintenance of his Maruti Car during the Check Period. But, he has not produced any oral or documentary evidence in this regard. According to the Accused-1 and 2, Maruti Car is almost a maintenance free car, use of car by him was very limited, he was provided with the Government vehicle and expenses on transportation get covered in Domestic and Routine Expenses and as such, claim of the Complainant is not appropriate rather frivolous. Government vehicle provided to the Accused-1 was for his official work only and not for 172 [Spl.C.C.112/2012-J] his personal work. As observed above, the Accused-1 is leading a high profile luxurious life. Considering the status and life style of the Accused-1 and his family members, substantial use of his Maruti Car by him and his family members cannot be ignored. Car requires service atleast once in a year apart from fuel, engine oil, brake oil etc. As there is no evidence on behalf of both the parties about actual amount spent towards maintenance of the car, considering the life style of the Accused-1 and 2, it can be inferred safely that the Accused-1 might have spent not less than Rs.3,000/- to Rs.5,000/- per year towards maintenance of his car. On considering all these facts and circumstances and in the absence of any evidence to the contrary on behalf of both the parties, it is just and proper to consider minimum amount of Rs.3,000/- per annum as maintenance cost of the car during the Check Period. Hence, it is held that Expenditure of the Accused-1 towards Vehicle Maintenance during the Check Period is Rs.15,000/- (@ Rs.3,000/- p.a.).
4.5: Education Expenditure-Brilliant Tutorials
191. According to the Complainant, the Accused-1 has spent Rs.49,635/- towards his children's education during the Check Period by paying the said amount to the Brilliant Tutorials. P.W.40-Sri.G.Moses is the Accounts Manager of the Brilliant Tutorials. He has deposed that the Accused-1 has paid Rs.49,635/- on 01.07.2010 towards IIT-JEE Course of his daughter-Ms.Harshitha. He has 173 [Spl.C.C.112/2012-J] produced Ex.P.71-Receipt issued by his Institution. Contents of this document support his evidence, which fortifies the contention of the Complainant. The Accused-1 and 2 have not disputed the payment of the said amount by the Accused-1. But, according to them, as entire payment was made in one shot, the Institution refunded Rs.4,635/- by way of discount and as such, the total amount paid to Brilliant Tutorials is only Rs.45,000/-. For having received such refund, the Accused-1 and 2 have not produced any evidence. In his Cross-examination, P.W.40 has admitted that if a candidate pays the whole Course Fee in one installment, he would be entitled for a discount. On the basis of this answer, the learned Advocate appearing on behalf of the Accused-1 and 2 has contended that the Accused-1 got refund of Rs.4,635/-. But, it is not the evidence of P.W.40 that so much of amount was refunded to the Accused-1. In fact, in his Cross-examination made on behalf of the Accused-1 and 2, P.W.40 has specifically denied that Rs.4,635/- was refunded to the Accused-1. It is a matter of common knowledge that any discount will be at the rate of 5%, 10% etc., and that it will not be in a fraction. Said Rs.4,635/- will be about 9.3% of Rs.49,635/-. As such and as discount will not be given at a fraction rate normally and in the absence of any supporting evidence, it is not possible to accept the bare contention of the Accused-1 and 2 that Rs.4,635/- was refunded by the Institution. For all these reasons, it is held that 174 [Spl.C.C.112/2012-J] Education Expenditure towards Brilliant Tutorials is Rs.49,635/-.
4.6: Education Expenditure-DPS, Vadodara
192. According to the Complainant, the Accused-1 has spent Rs.21,750/- towards education of his daughter- Ms.Harshitha at Delhi Public School, Vadodara. P.W.18- Sri.N.K.Sinha, the Principal of Delhi Public School, Vadodara has deposed that from 01.08.2005 to October 2006, Rs.21,750/- has been paid towards School Fees of the daughter of the Accused-1 and 2. Ex.P.43-Fee Particulars produced by P.W.18 also corroborates his evidence. As such, the evidence of P.W.18 and the contents of Ex.P.43 fully support the contention of the Complainant.
193. But, according to the Accused-1 and 2, though AMC Charges of Rs.4,000/- was paid in the month of April 2005, the same has been shown in Ex.P.43 as paid on 05.08.2005 and as such, the actual expenditure during the Check Period is only Rs.17,750/-. According to the Accused-1 and 2, it was mandatory to pay fee in the form of Cheque or DD only and the School Authority was not accepting Cash in any case and as such, entry in Ex.P.43 dated 05.08.2005 regarding payment of Rs.4,000/- is erroneous. As per Ex.P.73, AMC Charges have to be paid in the month of April and in fact, for the years 2004-2005 and 2006-2007, the said Charges have been paid in the 175 [Spl.C.C.112/2012-J] month of April only. But, there is nothing on behalf of the Accused-1 and 2 to show that AMC Charges for the year 2005-2006 was also paid in the month of April 2005 as contended by them. In fact, it is not even stated by the Accused-1 and 2 as to on which date the said amount was paid. Ex.P.43 shows that apart from Cheque, the Accused- 1 has paid amount in Cash also to that School. Though P.W.18 has stated in his Cross-examination that no Cash is generally accepted in his Institution, he has specifically stated that Rs.4,000/- was accepted from the Accused-1 by way of Cash as it was Annual Maintenance Charge. He has denied that though the said amount of Rs.4,000/- was not received by the School, the same is included in Ex.P.43 at the request of the Complainant. He has also denied that the School has collected a sum of Rs.17,750/- only and not Rs.21,750/-. It is not shown by the Accused-1 and 2 that as to why the School would go to an extent of making false entry regarding School Fees and as to why P.W.18 would depose falsely against the Accused-1 and 2. As the children of the Accused-1 and 2 were studying in that School, P.W.18 cannot have any ill will against the Accused-1 and 2. There is no reason to disbelieve the evidence of this witness, which is well supported by the contents of Ex.P.43. Keeping in view the said undisturbed evidence of P.W.18 coupled with the contents of Ex.P.43 and in the absence of anything contrary on behalf of the Accused-1 and 2, it is not possible to accept the bare contention of the Accused-1 and 2 that Rs.4,000/- was not 176 [Spl.C.C.112/2012-J] paid in the month of August 2005 and that it was paid in the month of April 2005. For all these reasons, it is held that Education Expenditure of the Accused-1 and 2 towards DPS, Vadodara during the Check Period is Rs.21,750/-.
4.7: Education Expenditure-Navarachana School, Vadodara
194. According to the Complainant, the Accused-1 has spent Rs.32,430/- during the Check Period towards School Fee of his children studied at Navarachana School, Vadodara. P.W.36-Sri.Subhash.K.Shah, Deputy Manager (Accounts) of Navarachana School has deposed that from 01.08.2005 to 30.08.2010, fee of Rs.32,430/- has peen paid on behalf of the children of the Accused-1 and that on 28.09.2006, when those children left the School, Caution Money and Building Fund of Rs.15,500/- has been refunded to them on 22.11.2006. Ex.P.64 is the Statement issued by Navarachana School, Vadodara. It contains the Details of Fee paid on behalf of the children of the Accused-1 and 2 from 01.07.2005 to 31.12.2010. As per this document, from 18.10.2005 to 19.07.2006, a sum of Rs.32,430/- has been paid towards Fee of 2 children of the Accused-1 and 2. As such, contents of this document corroborate the evidence of P.W.36, which fortifies the contention of the Complainant. Refund of Rs.15,500/-, referred to by P.W.36, has been taken into account in Statement-C as Receipt during the Check Period.
177 [Spl.C.C.112/2012-J]
195. But, according to the Accused-1 and 2, actual amount paid was Rs.25,000/- only and though he sought details from the School in this regard, the same were not provided. To show that, only Rs.25,000/- was spent towards School Fee, there is no supporting evidence. Annexures-A-36.1 to A-36.3 of Written Statement filed by the Accused-1 and 2 indicate that the Accused-1 sought details of fees paid by him to Navarachana School along with the details of Cheques and Demand Drafts through which the said payment was made and that the School Authorities have sent fee details to the Accused-1, however, they did not provide details of Cheques and DDs as sought by the Accused-1 on the ground that as the records were of 7 years old, they are not having those records. Though the Accused-1 received fee details from the School, he did not produce the same. There is nothing on behalf of the Accused-1 and 2 to show that the details furnished by the School in Ex.P.64 are erroneous. There is no reason also to disbelieve the evidence of P.W.36, which remained undisturbed in the Cross-examination. On considering this evidence available on behalf of the Complainant and in the absence of any evidence on behalf of the Accused-1 and 2 to the contrary, it is not possible to accept the bare contention of the Accused-1 and 2 that fee paid was only Rs.25,000/-. For all these reasons, it is held that Education Expenditure made at Navarachana School during the Check Period is Rs.32,430/-.
178 [Spl.C.C.112/2012-J] 4.8 Vehicle Insurance Premium
196. According to the Complainant, the Accused-1 has paid Rs.6,266/- towards Insurance Premium of his vehicle during the Check Period. Though the Accused-1 and 2 have not disputed the said payment, it is their contention that Insurance Company had collected Rs.412/- in excess and that the same was refunded on 27.08.2007 and that as such, amount spent towards Vehicle Insurance Premium is Rs.5,854/- only. P.W.32-Smt.M.Srilekha is the Branch Manager of United India Insurance Company, Madiwala Branch, Bengaluru, where the Accused-1 had taken Policy in respect of his Vehicle. Ex.P.57 is the document containing Receipts and Policies relating to that insurance. As per the evidence of P.W.32 and Ex.P.57, Insurance Company had collected Rs.6,266/- in all towards Insurance Premium from the Accused-1 in the year 2007, 2008 and 2009 and on 27.08.2007, Insurance Company refunded Rs.412/-, which was received in excess, to the Accused-1. This evidence supports the contention of the Accused-1 and 2. Hence, it is held that payment towards Vehicle Insurance Premium during the Check Period is Rs.5,854/- only.
4.9: Maintenance Charges of Dwarka Flat, New Delhi
197. As per Charge Sheet, the Complainant has contended that the Accused-1 and 2 have spent Rs.1,27,800/- towards Maintenance of Dwarka Flat, New 179 [Spl.C.C.112/2012-J] Delhi during the Check Period. But, in her Written Arguments, the learned Public Prosecutor restricted this claim to Rs.62,800/-. However, in the DA Calculation Table submitted by the learned Public Prosecutor on 13.10.2015, she restricted her claim to Rs.22,800/- only. According to the Accused-1 and 2 also, they spent Rs.22,800/- only towards the said Maintenance Charges. According to them, the Accused-1 has paid Electricity Security Deposit of Rs.5,000/-, Ground Rent of Rs.8,000/- and Maintenance Charge, for the initial period for which Flat was lying vacant, of Rs.9,800/- i.e., in all Rs.22,800/-.
198. As observed above, from September 2006 to March 2008, Indraprastha Company was the Tenant of the Accused-1 and 2 in respect of that Flat and Power Grid Corporation was the Tenant from September 2008 till the end of Check Period. As admitted by P.W.42, Tenants were paying Maintenance Charges, Electricity Charges, Water Charges etc., during the period of their tenancy. The Accused-1 has paid Rs.22,800/- as stated above, prior to September 2006. But, as observed above, while dealing with the Rental Income under the Head-'3.2' in Statement-C, this Court has held that the said Flat was vacant for a period of 5 months i.e., from April 2008 to August 2008 and as such, during that period, the Accused- 1 and 2 had to pay Maintenance and other Charges. The Accused-1 and 2 have not disclosed payment of these Charges. On considering all these facts and circumstances 180 [Spl.C.C.112/2012-J] as well as the quantum of Maintenance and other Charges and in the absence of any other evidence to the contrary, it is just and proper to infer that the Accused-1 has paid Maintenance Charges of Rs.5,000/- for a period from April 2008 to August 2008. Hence, it is held that Expenditure towards Maintenance Charges of Dwarka Flat, New Delhi during the Check Period is Rs.27,800/-.
4.10: Telephone Excess Charges Paid At Bengaluru
199. According to the Complainant, the Accused-1 has paid Rs.9,539/- towards Charges of excess use of Telephone provided by his office to him for the period from 01.09.2006 to 31.07.2010. Apart from deposing the said fact, P.W.15 has produced Ex.P.38. Ex.P.38 is a Statement showing Telephone Bills, Expenses borne by the Government and the Amount Remitted by the Accused-1 towards Charges of excess use of the said Telephone. Contents of this document fortify the evidence of P.W.15, which fully supports the contention of the Complainant. Though the Accused-1 and 2 have not disputed the said payment made by the Accused-1, it is their contention that as the excess amount paid by the Accused-1 being a small amount ranging average of Rs.203/- per month falls under routine and daily expenses covered under Domestic Expenditure already deducted and that hence, this claim of Rs.9,539/- being baseless, frivolous and as such, it cannot 181 [Spl.C.C.112/2012-J] be taken into account. Telephone Charges fall within the purview of verifiable expenses, whereas Domestic Expenditure falls within the purview of non-verifiable expenses. Compared to the claim of very small portions of Interest such as Rs.17.55, Rs.47.14, Rs.47.77, Rs.47.71, Rs.75.91 etc., amounting to Rs.926/-, which accrued during the Check Period of 5 years, under the Head-'3.5.12', towards Income during the Check Period, verifiable expenditure of Rs.9,539/- at an average of Rs.203/- per month cannot be ignored as negligible. Hence, it is not possible to accept the bare contention of the Accused-1 and 2 that claim of the Complainant is baseless, frivolous and need to be deleted. For all these reasons, it is held that the Accused-1 has spent Rs.9,539/- towards Payment of Telephone Excess Charges during the Check Period.
4.11: Payment Made To Sri.M.S.Sandhu
200. According to the Complainant, by paying Rs.50,000/- to his father-Sri.M.S.Sandhu on 15.02.2007, the Accused-1 has incurred expenditure of Rs.50,000/- during the Check Period. In support of this contention, the Complainant has relied upon Ex.P.69, which is a Letter written by Sri.M.S.Sandhu to P.W.43 during investigation. In this Letter, it is not stated that the Accused-1 paid Rs.50,000/- to his father. On the other hand, it is stated that Sri.M.S.Sandhu paid Rs.50,000/- to the Accused-1. As observed in the Heads-'1.7.3' & '3.5.3', during 1997, 182 [Spl.C.C.112/2012-J] the Accused-1 and 2 paid Rs.45,000/- to Sri.M.S.Sandhu on the occasion of Namakarana, Pagari Ceremony etc., and Sri.M.S.Sandhu returned that amount on 15.02.2007 and the said payment by the Accused-1 and 2 was prior to the Check Period. Hence, claim of the Complainant that the Accused-1 spent Rs.50,000/- during the Check Period by paying that amount to his father is baseless. Accordingly, the said claim of Rs.50,000/- made by the Complainant is rejected.
4.12: FINAL CALCULATION OF STATEMENT-D
201. In view of the above findings, Final Calculation of Statement-D i.e., expenditure incurred by the Accused- 1 and 2 during the Check Period is as under:
Sl. Amount
Details of Expenditure
No. (In Rs.)
1. Household Expenditure: 6,04,806
2. Stamp Duty Expenditure of Dwarka 1,19,100
Flat:
3. Stamp Duty Expenditure of Noida 77,550
Property:
4. Association Payments at Bengaluru: 1,500
5. Repayment of Housing Loan of 5,76,636
Dwarka Flat:
6. Insurance Premium Payment: 6,18,696
7. Education Expenditure-DPS, 6,23,750
Bengaluru:
8. Road Tax for Maruti-800: 2,220
9. Vehicle Maintenance: 15,000
10. Education Expenditure-Brilliant, 49,635
Chennai:
183 [Spl.C.C.112/2012-J]
11. Education Expenditure-DPS, Vadodara: 21,750
12. Education Expenditure-Navarachana 32,430
School, Vadodara:
13. Vehicle Insurance Premium paid at 5,854
Bengaluru:
14. Maintenance Charges of Dwarka Flat: 27,800
15. Maintenance of Demat Account at 40,000
Religare, New Delhi:
16. Vehicle Insurance Premium paid at 4,850
Vadodara:
17. Telephone excess Charges paid at 9,539
Bengaluru:
18. Education Expenditure-NPS, 96,700
Bengaluru:
19. Locker Charges paid by the Accused-2 3,459
to Punjab and Sind Bank, Bilaspur:
20. Payment made to Sri.Jayachandra 6,00,000
Bhatti:
Total: 35,31,275
Thus, it is clear that expenditure incurred by the Accused-1 and 2 during the Check Period is Rs.35,31,275/-. Accordingly, it is held that the Expenditure incurred by the Accused-1 and 2 during the Check Period is Rs.35,31,275/-.
5. FINAL CALCULATION OF INCOME, EXPENDITURE & ASSETS OF THE ACCUSED-1 & 2
202. From the above findings given on the Statements-A to D, Final Calculation of Income, Expenditure and Assets of the Accused-1 and 2 is as under:
184 [Spl.C.C.112/2012-J] Sl. Amount No. Description (In Rs.)
1. Assets at the beginning of the Check Period (Statement-A) : 21,66,206
2. Assets at the end of the Check Period (Statement-B) : 54,95,650
3. Receipts and Income during the Check Period (Statement-C) : 55,58,265
4. Expenditure during the Check Period (Statement-D): 35,31,275
5. Assets Acquired during the Check period (B-A): 33,29,444 6 Likely Savings during the Check Period (C-D): 20,26,990
7. Extent to which Assets and Expenditure are disproportionate to likely savings {E=[(B-A)+D]- 13,02,454 C}:
8. Percentage of Disproportionate Assets over the total Income 23.43% (E X100/C) :
From the above calculations based upon the findings given by this Court, it is clear that the Accused-1 possessed Disproportionate Assets worth Rs.13,02,454/- i.e., to an extent of 23.43% to his known and lawful sources of income. For all these reasons, Point-2 is answered in the affirmative holding that the Accused-1 possessed Disproportionate Assets worth Rs.13,02,454/- i.e., to an extent of 23.43% to his known and lawful sources of income.
185 [Spl.C.C.112/2012-J] POINT-3
203. According to the Accused-1 and 2, as this case is a consequence of trap case i.e., Spl.C.C.No.80/2011(RC 12(A)/2010), which was filed on the basis of a false Complaint made by Contractor-Sri.G.Parandhama Naidu due to vengeance as he suffered huge loss on account of sincere and pro-government service rendered by the Accused-1, and as the investigation of that case was also conducted by P.W.43, he should not have conducted investigation in this case as fair investigation could not be expected from him. According to the Accused-1 and 2, while acquitting the Accused-1 in Spl.C.C.No.80/2011, the Court has observed the said unfairness on the part of P.W.43 during investigation of that case and as such, the Accused-1 cannot be held as guilty as this case is filed on the basis of prejudiced investigation done by P.W.43. Facts narrated in the Written Arguments filed by the Accused-1 and 2 indicate that the Court acquitted the Accused-1 in Spl.C.C.No.80/2011 by giving benefit of doubt to him on the ground of non-production of material evidence and also procedure and technical lapses on the part of the Complainant. However, it is not the opinion of the Court in that case, as per the material placed by the Accused-1 and 2 in this case, that the investigation conducted by P.W.43 in that case was a prejudicial investigation or that case was filed exclusively on the basis of a false Complaint made by the Complainant. In the case on hand, there is nothing on behalf of the Accused-1 186 [Spl.C.C.112/2012-J] and 2 to show that investigation conducted by P.W.43 is unfair and prejudiced. Merely because, the Court acquitted the Accused-1 in the trap case by giving benefit of doubt, it cannot be said that this case is an outcome of prejudiced investigation done by P.W.43 as this case is entirely based on documents of the Accused-1 and 2 themselves. Hence, it is not fit to accept the bare contention of the Accused-1 that he cannot be held as guilty on the only ground that he was acquitted in trap case and that investigation done by P.W.43 is unfair or prejudiced.
204. The learned Advocate appearing on behalf of the Accused-1 and 2 has argued that the excess amount of Assets held by the Accused-1 are comparatively small considering the service and income of the Accused-1, it cannot be said that the Accused-1 is guilty of possessing Disproportionate Assets within the meaning of Sections 13(2) r/w. 13(1)(e) of the Act. In support of his argument, the learned Advocate relied upon the decision in the case of Ashok Tshering Bhutia -Vs- State of Sikkim, reported in (2011) 4 Supreme Court Cases 402, wherein it is held that as the value of unexplained Assets was merely a paltry sum which any Government employee could save every year, the Accused cannot be held guilty for the offence punishable under Sections 13(2) r/w. 13(1)(e) of the Act.
187 [Spl.C.C.112/2012-J]
205. In the above case, duration of the Check Period was very long i.e., from 1987 to 1995. In that case, income of the Accused was Rs.30.43 Lakhs, expenditure of the Accused was Rs.12.75 Lakhs, likely savings of the Accused was Rs.17.67 Lakhs and the actual Assets possessed by the Accused at the end of the Check Period was Rs.20.38 Lakhs and thus, the unexplained Assets of the Accused were worth just Rs.2.71 Lakhs, which was just around 13% over the total income. On considering this small amount, longest Check Period and also the length of the service of the Accused, it is held in that case that the Accused cannot be held guilty.
206. The learned Counsel for the Accused-1 and 2 also relied upon the decision in the case of Krishnananda Agnihothri -Vs- State of M.P., reported in AIR 1997 Supreme Court 796, wherein it is held that since the excess Assets possessed by the Accused was comparatively small i.e., less than 10% of the total income, it would not be right to hold that the Assets found in the possession of the Accused were disproportionate to his known sources of income.
207. In the above case, as the excess Assets being less than 10% of the total income was comparatively small amount, it is held that the Accused cannot be held guilty for possessing Disproportionate Assets to his known sources of income.
188 [Spl.C.C.112/2012-J]
208. But, in the case on hand, duration of the Check Period is 5 years only and the extent of Disproportionate Assets is 23.43% to the known sources of income of the Accused-1. As the said extent of Disproportionate Assets is far more than 10-13%, it cannot be said that it is a small or paltry amount. Hence, the decisions relied upon by the learned Advocate appearing on behalf of the Accused-1 and 2 do not in any way assist him to substantiate his arguments. This Court has liberally considered and accepted the explanation of the Accused-1 and 2, which is supported by acceptable documents and which is probable even in the absence of documents. In spite of taking such liberal view, the proved facts show that the Disproportionate Assets possessed by the Accused-1 amounts to 23.43% to his known sources of income and that there is no satisfactory account or explanation to this excess Assets possessed by him. These proved facts show beyond all reasonable doubts that the Accused-1 is guilty of Criminal Misconduct within the meaning of Section 13(1)(e) of the Act. For all these reasons, this Point is answered in the affirmative.
POINTS-4 & 5
209. The learned Public Prosecutor has contended that as the Accused-2 being the wife of the Accused-1 has abetted the Accused-1 to commit Criminal Misconduct of acquiring properties disproportionate to his known sources of Income, the Accuused-2 is guilty of an offence 189 [Spl.C.C.112/2012-J] punishable under Sections 109 of the IPC r/w.13(2) r/w.13(1)(e) of the Act. In support of her argument, the learned Public Prosecutor has relied upon a decision of the Hon'ble Supreme Court of India dated 09.08.1999 in the case of P.Nallammal -Vs- State Represented By Inspector of Police. In that case, it is held that there is no bar to proceed under Section 109 of the IPC against the persons, who have abetted the commission of offence punishable under Section 13(1)(e) of the Act.
210. In the Charge Sheet, the Complainant has contended that the Accused-2 abetted the Accused-1 to commit Criminal Misconduct to acquire properties in her name and also in the name of the Accused-1, which are disproportionate to the known sources of Income. But, it is not stated as to how and in what manner the Accused-2 abetted the Accused-1 to commit Criminal Misconduct. There is no evidence on behalf of the Complainant to show that the Accused-2 instigated the Accused-1 in any manner to commit the offence of Criminal Misconduct. There is also no evidence to show that the Accused-2 engaged with the Accused-1 or any other person in any conspiracy for committing such an offence. There is nothing also on behalf of the Complainant to show that the Accused-2 intentionally aided the Accused-1 either by any act or illegal omission for committing the offence of Criminal Misconduct. Though there are some Assets in the name of 190 [Spl.C.C.112/2012-J] the Accused-2 also, she had some income of her own through rent from Flat at Dwarka, New Delhi and Gifts given by her parents and relatives. The Accused-2 is the wife of the Accused-1. It is a matter of common knowledge that a husband keeps his Assets in the name of his wife or children and normally, wife and children will not ask the husband and the husband will also not disclose to his wife and children about the source of those Assets. As such, if the Accused-1 keeps some of his Assets in the name of the Accused-2 without disclosing the source of those Assets, it cannot be inferred, in the absence of any evidence, that the Accused-2 has abetted the Accused-1 to acquire those Assets in her name. Hence, the Accused-2 cannot be held as guilty for the offence of abetment as alleged by the Complainant. For all these reasons, it is clear that the Complainant has failed to prove the alleged guilt of the Accused-2 for the offence punishable under Sections 109 r/w.13(2) r/w.13(1)(e) of the Act and accordingly, Points- 4 and 5 are answered in the negative.
POINT-6
211. In view of the above findings of this Court on Points-1 to 5, the Accused-2 is entitled for acquittal and the Accused-1 is liable for conviction for the offence punishable under Section 13(2) r/w. 13(1)(e) of the Act.
212. As observed above, it is found that the Accused-1 possessed Disproportionate Assets of 191 [Spl.C.C.112/2012-J] Rs.13,02,454/- to his known source of income. The Complainant has filed Petition in Criminal Misc. No.4852/2013 under Section 3 of Criminal Law (Amendment) Ordinance, 1944 r/w. Section 5 (6) of the Act before this Court seeking attachment of Flat No.B-403, Dwarka, New Delhi, which stands in the name of the Accused-1 and 2, and Plot No.10-P-4, Builders Area, Unit No.49, Greater Noida, standing in the name of the Accused-1. But, as the Accused-1 and 2 appeared by taking Notice voluntarily and filed Objections at the initial stage itself, the Court did not pass any Attachment Order as sought by the Complainant and the said case is still pending. In the case of A.Radhakrishnamurthy -Vs- State of Andhra Pradesh reported in III (2004) CCR 45 (AP), it is held that Disproportionate Assets not attached under the Ordinance, 1944 can be confiscated by the Court under Section 452 of the Cr.P.C., 1973. As the Accused-1 possessed Disproportionate Assets worth Rs.13,02,454/- to his known sources of income and as he has not given any satisfactory account in respect of acquiring of those Assets lawfully, the said Assets are fit to be confiscated. In the case on hand, the Complainant has seized Rs.7,00,000/- from the House of the Accused-1 and 2 during Search and Inventory and the same is kept under Deposit by taking permission of this Court and the said amount is not attached under the Ordinance of 1944. As such, it is just and proper to Order to confiscate the said amount of Rs.7,00,000/- seized by 192 [Spl.C.C.112/2012-J] the Complainant and kept under Deposit by him and to direct the Complainant to take appropriate steps for recovery of balance Assets out of the Disproportionate Assets.
213. In the result, the following Order is passed:
ORDER Under Section 235(1) of the Cr.P.C., 1973, the Accused-2 is acquitted for the offence punishable under Section 109 of the Indian Penal Code, 1860 r/w. Sections 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act, 1988 and she is set at liberty.
Under Section 235(2) of the Cr.P.C., 1973, the Accused-1 is convicted for the offence punishable under Sections 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act, 1988.
Cash of Rs.7,00,000/- seized by the Complainant from the House of the Accused-1 and kept under Deposit by him is confiscated to State. The Complainant is directed to take appropriate steps for recovery of balance Disproportionate Assets.
Sentence will be passed after hearing the Accused-1.
(Dictated to Judgment Writer, transcribed by her, revised, corrected and then pronounced by me in the Open Court on this the 30th day of November 2015.) (ASWATHA NARAYANA) XLVII Additional City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru.
193 [Spl.C.C.112/2012-J] ORDER ON SENTENCE
214. Heard Counsels of both the sides and also the Accused-1 regarding sentence to be imposed on the Accused-1. Records Perused.
215. The learned Advocate appearing on behalf of the Accused-1 submitted that the Accused-1 is the first offender, he has no criminal background, he is having wife and young children including 2 daughters, who are yet to be married, and that he has already suffered punishment by attending the Court since 2012 and that, as such, lenient view may be taken while imposing sentence on the Accused-1. On the other hand, the learned Public Prosecutor submitted that as the Accused-1 has committed grave economic offence, he is not entitled to any lenience and that maximum punishment provided in the Section has to be imposed on him.
216. The Accused-1 has committed the offence punishable under Sections 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act, 1988. The Accused-1 being a Public Servant has amazed Disproportionate Assets to an extent of Rs.13,02,454/-, that is 23.43% to his known sources of income and as such, the said act of the Accused-1 is a serious offence. On considering all these facts and circumstances, nature and gravity of the offence that the Accused-1 has committed, it is not a fit case to 194 [Spl.C.C.112/2012-J] show mercy on the Accused-1. If any such mercy is shown, a wrong message will go to the Society to the effect that, it is possible to escape from the punishment by committing serious offences also. Such a wrong message will have a serious repercussion on the Society that too in these hard days, where there is severe increase of crime rate. However, the Accused-1 is attending the Court since more than 3 years. By doing so, he has suffered some punishment already. He is having wife, 2 daughters and a son. His son is studying and his daughters are yet to be married. Having regard to all these facts, nature and gravity of the offence committed by the Accused-1 and all other facts and circumstances of the case, it appears that the ends of justice would be met if the Accused-1 is sentenced to undergo Simple Imprisonment for a period of 2 years and to pay fine of Rs.7,00,000/- and in default to pay fine, to undergo Simple Imprisonment for a period of six months for the offence punishable under Sections 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act, 1988. In the result, the following Order is passed:
ORDER Under Section 235(2) of the Cr.P.C., 1973, The Accused-1 is sentenced to undergo Simple Imprisonment for a period of 2 years and to pay fine of Rs.7,00,000/- and in default to pay fine, to undergo Simple Imprisonment for a period of six months for the offence 195 [Spl.C.C.112/2012-J] punishable under Sections 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act, 1988.
(Computerized by the Judgment Writer to my dictation in the open Court on this the 30th day of November 2015.) (ASWATHA NARAYANA) XLVII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bengaluru.
(See next Page for Annexure.) 196 [Spl.C.C.112/2012-J] ANNEXURE
1. LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT WITH THE DATES OF THEIR EXAMINATION:
P.W.1: Sri.V. Chakrapani 15.02.2013 & 25.03.2013.
P.W.2: Sri.Dhanasekharan 25.03.2013. P.W.3: Sri.S.R. Pandey 03.04.2013.
P.W.4: Sri.Akshayakumar B.Chingadi 03.04.2013. P.W.5: Sri.T.S.Sridharan 03.04.2013. P.W.6: Sri.G.Prahalad 03.04.2013.
P.W.7: Smt.Samantha Ferris 04.04.2013. P.W.8: Smt.Namrata Sanghvi 04.04.2013.
P.W.9: Smt.Sumitha 24.04.2013.
P.W.10: Sri.B.Lal 24.04.2013.
P.W.11: Sri.Chethan 24.04.2013.
P.W.12: Sri.K.Ravi 24.04.2013.
P.W.13: Smt.Sandhya Sree Hari 24.04.2013.
P.W.14: Sri.P.R.Rajesh 25.04.2013.
P.W.15: Sri.M.Balachandran 25.04.2013.
P.W.16: Sri.Chandra Gopal Govindlal 27.05.2013.
Gandhi
P.W.17: Sri.J.V.Jorapur 27.05.2013.
P.W.18: Sri.N.K.Sinha 27.05.2013.
P.W.19: Sri.A.Paramasivan 27.05.2013.
P.W.20: Sri.Rithish Kumar Mavila 27.05.2013.
P.W.21: Sri.Narendra Kumar 27.05.2013.
P.W.22: Sri.Roshan Rai B. 27.05.2013.
197 [Spl.C.C.112/2012-J]
P.W.23: Sri.V.K.Mohan 27.05.2013.
P.W.24: Sri.Shashikumar N. 27.05.2013.
P.W.25: Sri.Pradeep Aspatwar 28.05.2013.
P.W.26: Sri.D.T.Malodkar 28.05.2013.
P.W.27: Sri.Suresh Babu 28.05.2013.
P.W.28: Sri.Ramakanth Shenoy 28.05.2013.
P.W.29: Smt.Chitra Rao 28.05.2013.
P.W.30: Sri.B.Selvanayagam 28.05.2013.
P.W.31: Sri.V.Muniyappa 28.05.2013.
P.W.32: Smt.M.Sreelekha 28.05.2013.
P.W.33: Sri.Gourav Malhotra 29.05.2013.
P.W.34: Sri.Kaushik P.C. 29.05.2013.
P.W.35: Sri.Harshad Shah 29.05.2013.
P.W.36: Sri.Subash K.Shah 26.06.2013.
P.W.37: Sri.Rajnder Singh Wadhwa 26.06.2013.
P.W.38: Sri.Sanjeet Singh Wadhwa 26.06.2013.
P.W.39: Sri.K.Ganesh 27.06.2013.
P.W.40: Sri.G.Moses 26.07.2013.
P.W.41: Sri.T.V.Joy 26.07.2013.
P.W.42: Sri.Dhirender Kumar 14.08.2013.
P.W.43: Sri.T.P.Anandakrishnan 03.09.2013 &
24.09.2013.
2. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE COMPLAINANT:
Ex.P.1 : Certified Copy of Search List dated 13.08.2010.
Ex.P.1(a) : Inventory for Seizure of Cash. Ex.P.1(b) : Inventory of Valuable Articles and Household Articles.
198 [Spl.C.C.112/2012-J] Ex.P.2 : File containing Tripartite Sub-Lease Deed dated 15.06.2009.
Ex.P.3 : File containing FD Receipts, Statement of ABN Amro Smart Gold Credit Card in the name of the Accused-2, Reminder, to pay the Premium by the Accused-2, from Bajaj Alliance Life Insurance, Valuation Report from NJ India Invest, IDBI Flexi Bonds, and other documents.
Ex.P.4 : Search List dated 16.12.2010 at the residence of Accused along with Details of Particulars.
Ex.P.4(a) : Signature of P.W.2 in Ex.P.4.
Ex.P.4(b) : Signature of P.W.43 in Ex.P.4. Ex.P.5 : One Neelgagan Note Pad pertaining to official programme of the Accused-1 containing written matters.
Ex.P.5(a) : Signature of P.W.2 in Ex.P.5.
Ex.P.5(b) : Entries at Pages 5 to 7 in Ex.P.5. Ex.P.6 : File containing details of Dues and Receipts, Computer Statement, Xerox Copies of Allotment Letter, 5 Share Certificates, 2 Cash Receipts, Bill dated 01.10.2008, 1 Cash Receipt dated 17.12.2006, Hand Written Script of the Accused-1.
Ex.P.7 : File containing 73 pages of various documents like ICICI Bank Receipt, Receipt of C.P.W.D, Fee Receipt, Getanjali Harmonica Receipt, Road Tax Receipt, Cash Receipt, Reminder Letter of LIC of India, along with other documents.
199 [Spl.C.C.112/2012-J] Ex.P.8 : File containing Xerox Copies of Lease Deeds, Letters and Lease & Licence Agreements.
Ex.P.9 : File containing Xerox Copy of Order, 2 Xerox Copies of Gift Deed, Xerox Copies of ICICI Bank Receipt, Letter dated 14.12.2005, Xerox Copy of DD's, Office Order Xerox Copy of Bill dated 11.10.2005, Xerox Copies of Cheques of ICICI Bank, DD of Punjab and Sind Bank, Cheque of Central Bank of India, Agreement of Sale & Receipt dated 02.12.2005.
Ex.P.10 : Note Book containing details regarding Rent and Renewal of Lease Deed.
Ex.P.11 : Xerox Copies of Sub Lease Deeds, Plans, Sketch, 5 Share Certificates, Letter of Allotment of Plot & Election ID card.
Ex.P.12 : Xerox Copies of ABN Amro Bank Advice, Cheques of Andhra Bank, DD's, Punjab Sind Bank Pass Book, 9 DD's, Pass Book of Corporation Bank, Pass sheet of Royal Bank of Scotland.
Ex.P.13 : Colour Xerox Copy of Tripartite Sub-
Lease Deed dated 15.6.2009, IDBI & ICICI Tax saving Bonds, 2 LIC Policies.
Ex.P.14 : Ledger Extracts of Statement of Dues and Receipts of the Accused-1.
Ex.P.15 : Attested Copies of 6 IDBI Application Forms and Flexi Bond Details along with a Covering Letter dated 21.02.2011.
Ex.P.16 : Copies of Statement of Accounts, Application Forms, along with Covering Letter dated 22.07.2011 by the 200 [Spl.C.C.112/2012-J] Sundaram Asset Management Co. Ltd.
Ex.P.17 : Letter dated 04.03.2011 from HDFC Asset Management Co. Ltd., along with Statement of Account of the Accused-2 at HDFC.
Ex.P.18 : Letter dated 22.07.2011 along with Statement of Account of the Accused-1 furnished by HDFC Asset Management Co. Ltd.
Ex.P.19 : Letter dated 27.05.2011 along with Copies of Statement of Accounts, Purchase Applications pertaining to the Investment of the Accused-1 furnished by Franklin Templeton Asset Management Co., Ltd.
Ex.P.20 : Letter dated 02.02.2011 along with Copies of Applications and Statement of Accounts pertaining to the Investment of the Accused-1, furnished by the Reliance Capital Asset Management Limited.
Ex.P.21 : Letter dated 29.01.2011 along with Copies of Applications and Details of Bonds pertaining to the Investment of the Accused-1, furnished by 3i Infotech.
Ex.P.22 : Letter dated 01.02.2011 along with Statement of Account pertaining to the Accused-1, furnished by ICICI Bank.
Ex.P.23 : Letter dated 26.07.2011 along with Statement of Account and Transaction Statement of 3 Fixed Deposits of the Accused-1, furnished by ICICI Bank.
Ex.P.24 : Letter dated 05.04.2011 along with True Copy of Account opening Form and Statement of Account pertaining to 201 [Spl.C.C.112/2012-J] the Accused-1, furnished by State Bank of India.
Ex.P.25 : Letter dated 13.06.2011 along with True Copy of PPF Accounts of the Accused-1 and 2 and their children Rishab Singh Sandhu & Riya Sandhu, furnished by the State Bank of India.
Ex.P.26 : Letter dated 28.01.2011 along with Certified Copy of Statement of Account and Account Opening Form of the Accused-2, furnished by the Standard Chartered Bank.
Ex.P.27 : Letter dated 02.06.2011 along with True Copy of Statement of Account and A/c Opening Form of the Accused-1, furnished by the Corporation Bank.
Ex.P.28 : Letter dated 28.07.2011 along with Copy of Statement of Accounts, Account Opening Forms of the Accused-1 and 2, furnished by Computer Age Management Services Pvt. Ltd.
Ex.P.29 : Letter dated 01.02.2011 along with 2 House Lease Agreements and Statement showing the amount transferred to the Accused-1 and 2.
Ex.P.30 : Service Register of the Accused-1. Ex.P.31 : Letter dated 26.08.2011 along with Annexure with details of Flat No.B-403 and Immovable Property Returns in respect of Accused-1, furnished by CPWD, Bengaluru.
Ex.P.32 : Posting Particulars of the Accused-1, furnished by CPWD, Bengaluru.
Ex.P.33 : Order dated 08.02.2011 regarding Suspension of the Accused-1.
202 [Spl.C.C.112/2012-J] Ex.P.34 : Letters dated 11.02.2011, 23.02.2011 & 28.02.2011 along with Salary details, GPF Statement and Application for withdrawal of GPF Amount, furnished by CPWD.
Ex.P.35 : Letter dated 11.02.2011 along with Copy of Salary details from 01.09.2006 to 31.08.2010 & Personal File of the Accused-1, furnished by CPWD.
Ex.P.36 : Letter dated 26.05.2011 along with Certified Copies of Form 16 issued to the Accused-1 for the period from 2004-05, 2005-06, 2006-07, 2007-08, 2008-09, 2009-10, 2010-11, furnished by CPWD.
Ex.P.37 : Letter dated 02.02.2011 regarding forwarding of Property Statement Form 1 to VI of the Accused-1, by CPWD.
Ex.P.38 : Letter dated 15.02.2011 along with Details of Payments towards Telephone Charges made by the Accused-1.
Ex.P.39 : Personal File of the Accused-1 maintained by Controlling Authority at C.P.W.D. office.
Ex.P.40 : Letter dated 07.06.2011 along with Details of Payment made by the Accused-1 towards sale of Flat No.B-
403. Ex.P.41 : Attested Copy of Details of NSC No.6NS/49EE024063 for Rs.10,000/-
dated 03.04.2003 purchased by the Accused-1 along with a Covering Letter dated 27.05.2011.
203 [Spl.C.C.112/2012-J] Ex.P.42 : Letter dated 01.02.2011 along with Attested Copy of Subscription Register regarding subscription made towards Quarters No.522 by the Accused-1, furnished by Central Government Staff Quarters Residents' Welfare Association.
Ex.P.43 : Details of School Fees paid by the Accused-1 and 2 of their daughter Ms.Harshitha along with a Letter dated 28.01.2011 by the Delhi Public School.
Ex.P.44 : Details of SBI Life Insurance Policy in the name of the Accused-1 along with a Covering Letter dated 20.01.2011.
Ex.P.45 : Details of Statement of Account, Account Opening Form and Fixed Deposit Details of the Accused-2 along with a covering Letter dated 18.02.2011 by the Royal Bank of Scotland.
Ex.P.46 : Details of Payment of Rent by the Power Grid Corporation to the Accused- 1 and 2 and Copy of Rental Agreements along with a Covering Letter dated 31.05.2011 by the Power Grid Corporation.
Ex.P.47 : Details of Life Insurance Policy of the Accused-2, Statement of Policy Certificate along with a Covering Letter 17.02.2011 by the ICICI Prudential Life Insurance.
Ex.P.48 : Letter dated 28.06.2011 by the Department of Posts regarding issuance of Cheque bearing No.961979 for Rs.16,010/- towards Proceeds of NSC to the Accused-1.
204 [Spl.C.C.112/2012-J] Ex.P.49 : Certified Copies of Statement of Accounts of FDs in the name of the Accused-1 & 2 and & Statement of Housing Loan Account along with a Covering Letter dated 14.07.2011 by the ICICI Bank.
Ex.P.50 : Copies of Income Tax Returns for the year 2005-06, 2006-07, 2009-10, 2010-11 of the Accused-1 along with a Covering Letter dated 20.06.2011 by the Income Tax Office.
Ex.P.51 : True Copy of 2 Vehicle Insurance Policies taken by the Accused-1, along with a Covering Letter dated 01.06.2011 by the Oriental Insurance Co. Ltd.
Ex.P.52 : Copies of Life Insurance Policy's of the Accused-1 and 2 and Copy of Premium Paid Details along with a Covering Letter dated 10.06.2011 by the Bajaj Allianz.
Ex.P.53 : Copy of Status Report of LIC Policies along with a Covering Letter dated 21.01.2011 by the Life Insurance Corporation of India.
Ex.P.54 : Details of school fees paid by the Accused-1 for his Daughter Harshita Sandhu and Fee Receipt along with a Letter dated 04.08.2011 by National Public School.
Ex.P.55 : Certified Copies of Details of Premium Receipts, Mediclaim Policies of the Accused-1 along with a Covering Letter dated 09.02.2011 by the Oriental Insurance.
Ex.P.56 : Letter dated 31.05.2011 regarding 205 [Spl.C.C.112/2012-J] details of payment made against the MV No.CH-01-Y-3921 by the Regional Transport Officer.
Ex.P.57 : Details of Policies bearing
No.07/01/436, 08/01/5021 and
09/01/4464 of the Accused-1,
furnished by the United India Insurance Co.Ltd., by its Letter dated 14.06.2011.
Ex.P.58 : Letter dated 04.02.2011 regarding Payment of Premiums and Policy schedule of the Accused-2, furnished by AVIVA.
Ex.P.59 : Details of LIC policy No.162492222 & Premium History of Policies along with a Letter dated 12.08.2011 furnished by LIC.
Ex.P.60 : Letter dated 11.08.2011 from Sr.Branch Manager of LIC regarding Details of LIC policy No.873050100 & Premium paid details of the Accused-1.
Ex.P.61 : Status Report, History of Loan Transaction and Details of LIC policy No.112388408 of the Accused-1 along with a Letter dated 25.01.2011 from Sr.Branch Manager of LIC.
Status Report, Premium Paid Certificates and Details of LIC policy No.112388415 of the Accused-2 along with a Letter dated 08.08.2011 from Sr.Branch Manager of LIC.
Ex.P.62 : Transaction Statement in DP Account and Financial Statement of the Accused-1 for the period from 2009 to 2010 and 2010 to 2011 in Trading Account along with a Letter dated 206 [Spl.C.C.112/2012-J] 25.02.2011 from Deputy Manager of Religare Securities Ltd.
Ex.P.63 : Statement of SB Account No.3950 in the Joint names of the Accused-2, Sheela Rani and Mrs.Saranjeet Kaur along with a Letter dated 25.08.2011 from Sr.Manager of Punjab and Sind Bank.
Ex.P.64 : Details of Fees Paid for the children of the Accused-1 & 2 along with a Covering Letter from the Principal of Navarachana School.
Ex.P.65 : True Copies of Statements of Account of Sri.Rajendra Singh Wadhwa with Bank of Maharashtra, Xerox Copy of Savings Bank Pass Book of Sri.Rajendra Singh Wadhwa & Smt.Sheela Wadhwa with Central Bank.
Ex.P.66 : Xerox Copies of Transactions Inquiry (Statement of Account) of ICICI Bank of Sanjeet Singh Wadhwa.
Ex.P.67 : Sanction File.
Ex.P.68 : Sanction Order dated 07.03.2012.
Ex.P.69 : Copy of Statement of Savings Account, Summary of Accounts with ICICI Bank along with a Letter written by Sri.Mohinder Singh Sandhu.
Ex.P.70 : Details of Payments made to Delhi Public School by the Accused-1 & 2 towards Fees of their daughter along with a Letter dated 30.05.2011 from the Chief Administrative Officer of the Delhi Public School.
Ex.P.71 : Details of Payments made to Brilliant 207 [Spl.C.C.112/2012-J] Tutorials by the Accused-1 & 2 towards Fees of their daughter along with a Letter dated 31.01.2011 from the Senior Accounts Manager of the Brilliant Tutorials.
Ex.P.72 : Copy of Order dated 21.9.2011.
Ex.P.73 : True Copy of 6 Receipts-Amount paid by the Accused-1 to K.M. Co-operative Group Housing Society Ltd., towards Maintenance Charges.
Ex.P.74 : Portion of Statement of P.W.42.
Ex.P.75 : FIR.
Ex.P.75(a) : Signature of HOD in Ex.P.75.
Ex.P.76 : Order dated 15.12.2000.
Ex.P.77 : Certified Copy of Sale Deed dated
02.02.2006.
Ex.P.78 : Certified Copy of Tripartite Sub-Lease
Deed dated 15.06.2009.
3. LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE COMPLAINANT:-
-NIL-
4. LIST OF WITNESSES EXAMINED ON BEHALF OF THE ACCUSED WITH DATE OF EXAMINATION:-
D.W.1: Sri.Dinesh Maiya 04.12.2013, 31.01.2014 & 10.02.2014.
D.W.2: Sri.Kulbir Singh Sandhu 10.02.2014 & 22.02.2014.
208 [Spl.C.C.112/2012-J]
5. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE ACCUSED:-
Ex.D.1 : Portion of Statement of P.W.3. Ex.D.2 : PPF A/c. Pass Books of Riya Sandhu. Ex.D.3 : Office Order dated 12.05.2010 for Leave Encashment.
Ex.D.4 : Letter dated 19.06.2013 from LIC
regarding Details of two Insurance
Policies of Sri.Rajendra Singh
M.Wadhwa.
Ex.D.5 : Statement of Account of Smt.Sheela
Wadhwa Rajindir Singh Wadhwa
Ex.D.5(a) : Relevant Entry in Ex.D.5.
Ex.D.5(b) : Xerox Copy of Demand Draft dated 03.09.2009.
Ex.D.6 : Xerox Copy of Letter dated 27.07.2011 along with blank Statement-A to Statement-D. Ex.D.7 : Copy of Reply of the Accused along with filled up Statement-A to Statement-D. Ex.D.8 : True Copy of IT Returns filed by the Accused-2 for the Assessment years 2006-2007 to 2011 to 2012 along with Certificate issued by Sri.C.A.Kamal Bajaj, K.V.A. & Associates.
Ex.D.8(a) : Original IT Returns filed by the Accused-2.
Ex.D.9 : Copy of Consolidated Statement of Receipts from Business of the Accused-
2. 209 [Spl.C.C.112/2012-J] Ex.D.10 : Xerox Copies of Part of Ex.P10, Ex.P22 and Ex.P45.
Ex.D.11 : Ledger Statements of India Infoline Securities Pvt. Ltd. of the Accused-1.
Ex.D.12 : Certified Statements of Account of Axis Bank of the Accused-1 with Certificate under the Bankers Book Evidence Act, 1891.
Ex.D.13 : True Copy of Ledger Statements of India Infoline Securities Pvt. Ltd. of the Accused-2.
Ex.D.14 : Certified Statements of Account of the Accused-2 with HDFC Bank along with Certificate under Banker's Books Evidence Act, 1891.
Ex.D.15 : Certified Statements of Interest Account of the Accused-1 with ICICI Bank along with Certificate under Banker's Books Evidence Act, 1891.
Ex.D.16 : Certified Statements of Interest Account of the Accused-1 with ICICI Bank along with Certificate under Banker's Books Evidence Act, 1891.
Ex.D.17 : Furnishing of details by the
Department of Posts regarding
issuance of Cheques to the Accused-1.
Ex.D.18 : Furnishing of details regarding LTC/Transfer TA Bill and Leave Encashment by CPWD along with a Covering Letter dated 23.05.2013.
Ex.D.19 : Salary Particulars of the Accused-1 for the month of July 2005.
210 [Spl.C.C.112/2012-J] Ex.D.20 : Information given by Public Information Officer, IISC, Bengaluru regarding BWC Meeting and remuneration paid to the Accused-1.
Ex.D.21 : Pay Drawn Statement of the Accused-1 for the period from 01.09.2006 to 31.08.2010 furnished by CPWD.
Ex.D.22 : Details regarding reimbursement of News Paper Bills furnished by CPWD.
Ex.D.23 : Certified Copies of Statement of Accounts of the Accused-1 with ICICI Bank.
Ex.D.24 : Xerox Copy of Statement of Transactions in Savings Account of the Accused-1 with ICICI Bank for the period from 01.01.2005 to 31.03.2005.
Ex.D.25 : Certified Copy of Pass Book of sister of the Accused-1, Xerox Copy of DD No.496185 dated 29.08.2009 for Rs.75,000/- & Copy of Ex.P.45.
Ex.D.26 : Copy of E-Mail, Letter from Corporation Bank to the Accused-1 and Copy of Ex.P.27.
Ex.D.27 : Xerox Copy of Statement of Transactions dated 21.09.2001 of the Accused-1 showing payment of School Fees of children of the Accused-1 and 2 by way of DD and Receipts from Schools.
Ex.D.28 : GPA dated 04.01.2002 in Punjabi Language.
Ex.D.28(a) : Translated Copy of GPA.
Ex.D.29 : GPA executed by Sri.Buta Singh.
211 [Spl.C.C.112/2012-J]
Ex.D.30 : Letter dated 14.04.1969 written by
Sri.Boota Singh Sandhu to the
Tahasildar for issuance of Solvency Certificate.
Ex.D.31 : Statement of payments made during 1975-76 to Sri.Boota Singh Sandhu.
Ex.D.32 : Letter dated 13.07.1987 issued by Executive Engineer, Madhya Pradesh Housing Board Division, Rewa.
Ex.D.33 : Letter written by Sri.Gurusharan Singh to the Tahsildra, Malout regarding ownership of Mohinder Sing for 82K-2M land.
Ex.D.33(a) : Translated Copy of Ex.P.33.
Ex.D.34 : Affidavit filed by C.W.56.
Ex.D.35 : Copies of IT Returns of Mohinder Singh.
Ex.D.36 : Affidavit dated 05.05.2010 of Sri.Mohinder Singh Sandhu.
Ex.D.37 : Affidavit dated 23.11.2013 of Sri.Mohinder Singh Sandhu.
Ex.D.38 : Affidavit dated 25.04.2011.
Ex.D.39 : Affidavit dated 13.11.2013 of Smt.Satinder Kaur.
Ex.D.40 : Affidavit dated 02.08.2013 of Smt.Parminder Kaur.
Ex.D.41 : Affidavit 02.08.2013 of Sri.Jogendra Singh.
(ASWATHA NARAYANA) XLVII Addl. City Civil & Sessions Judge & Special Judge for CBI Cases, Bengaluru.
212 [Spl.C.C.112/2012-J] 30.11.2015:
Complainant: By P.P. Accused: By KNN.
For Judgment:
Counsels for both the parties are present. The Accused-1 and 2 are also present.
Judgment pronounced (vide separate Judgment consisting of 192 Pages kept in the file) and the following Order is passed:
ORDER Under Section 235(1) of the Cr.P.C., 1973, the Accused-2 is acquitted for the offence punishable under Section 109 of the Indian Penal Code, 1860 r/w. Sections 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act, 1988 and she is set at liberty. Under Section 235(2) of the Cr.P.C., 1973, the Accused-1 is convicted for the offence punishable under Sections 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act, 1988. Cash of Rs.7,00,000/- seized by the Complainant from the House of the Accused-1 and kept under Deposit by him is confiscated to State. The Complainant is directed to take appropriate steps for 213 [Spl.C.C.112/2012-J] recovery of balance Disproportionate Assets.
Sentence will be passed after hearing the Accused-1.
Heard counsels of both the sides and the Accused-1 on the quantum of sentence. For Orders on sentence, call again.
(Computerized by Judgment Writer to my dictation in the open Court.) (ASWATHA NARAYANA) XLVII Additional City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru.
Again called. Order on sentence pronounced as under:
ORDER ON SENTENCE Under Section 235(2) of the Cr.P.C., 1973, The Accused-1 is sentenced to undergo Simple Imprisonment for a period of 2 years and to pay fine of Rs.7,00,000/- and in default to pay fine, to undergo Simple Imprisonment for a period of six months for the offence punishable under Sections 13(2) r/w. 13(1)(e) of the Prevention of Corruption Act, 1988.
Heard both the sides on IA-3. Sentence imposed on the Accused-1 is below 3 years. He was on Bail throughout trial. He has not violated any Bail conditions so far. He is a Public Servant. On considering all these facts, it is a fit case to exercise discretion to suspend the sentence for a period of one month from today and to enlarge him on Bail. In the result, the following Order is passed:
ORDER IA-3 is allowed. Sentence imposed on the Accused-1 is suspended for a period of one month from today. One month time is granted to the Accused-1 for payment of fine amount also. The Accused-1 be released on Bail on his executing a personal bond for Rs.5,00,000/- with a Surety for like sum.
Heard. Records perused. Satisfied about identity and solvency of Surety. Sri.Kulbir Singh Sandhu is accepted as Surety.
Office is directed to take Bail Bonds and furnish free Copy of the Judgment forthwith.
(Computerized by Judgment Writer to my dictation in the open Court.) 214 [Spl.C.C.112/2012-J] (ASWATHA NARAYANA) XLVII Additional City Civil & Sessions Judge and Special Judge for CBI Cases, Bengaluru.