Madras High Court
Unknown vs D.Shanthakumari (A2) on 24 April, 2025
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.R.C.Nos.485 and 486 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on : 09.01.2025
Orders Pronounced on : 24.04.2025
Coram:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.Nos. 485 and 486 of 2017
and
Crl.M.P.Nos. 4337 and 4338 of 2017
--
State Represented by
The Public Prosecutor,
High Court, Madras – 600 104,
[V & A.C., Vellore
Crime No.17 of 2011] ... Petitioner
in both Crl.R.Cs
Vs.
D.Shanthakumari (A2)
W/o.Durai Murugan ... Respondent
in Crl.R.C.No.485 of 2017
M.Durai Murugan (A1)
S/o.Duraisamy Gounder ... Respondent
in Crl.R.C.No.486 of 2017
Criminal Revision Cases filed under Sections 397 and 401 Cr.P.C., to
set aside the order of discharge passed by the Special Judge/Chief Judicial
Magistrate, Vellore in Crl.M.P.Nos.206 and 205 of 2016 [Common Order
Page Nos.1/54
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm )
Crl.R.C.Nos.485 and 486 of 2017
passed in Crl.M.P.Nos.205/2016 and 206/2016] dated 31.01.2017.
For Petitioner : Mr.J.Ravindran
Additional Advocate General
assisted by Mr.S.Vinoth Kumar
Government Advocate (Crl.Side)
[ in both Crl.R.Cs]
For Respondents : Mr.P.Wilson
Senior Counsel assisted by
Mr.Richardson Wilson
[ in Crl.R.C.No.485 of 2017]
Mr.Sidharth Luthra
Senior Counsel assisted by
Mr.Richardson Wilson
[ in Crl.R.C.No.486 of 2017 ]
COMMON ORDER
These Criminal Revision Petitions arise out of the common order dated 31.01.2017 passed in Crl.M.P.Nos.205 and 206 of 2016 by the Special Judge/Chief Judicial Magistrate, Vellore.
2. The respondent in Crl.R.C.No.485 of 2017 is arrayed as A2 and the respondent in Crl.R.C.No.486 of 2017 is arrayed as A1. Page Nos.2/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017
3. The brief facts of the prosecution case in nutshell are as follows :
(i) M.Duraimurugan - A1 was the Minister of Public Works Department, Law and Prisons of Government of Tamil Nadu during the period between 13.05.2006 and 14.05.2011. Hence, he falls within the definition of ‘Public Servant’ as defined under Section 2(c) of the Prevention of Corruption Act, 1988 (Central Act 49 of 1988) [hereinafter referred to as ‘PC’ Act, 1988 for brevity]. One Shanthakumari - A2 is wife of A1. The check period of A1 and A2 was assessed between 01.04.2007 and 31.03.2009. During the check period, A1 and A2 had acquired and had been in possession of pecuniary resources and properties in their names, which are alleged to be disproportionate assets of their known source of income.
(ii) The prosecution on the basis of credible information had registered a case in Vellore Vigilance and Anti Corruption in Crime No.17 of 2011 against A1 and A2 for the offences punishable under Sections 13(2) read with 13(1) (e) of PC Act, 1988 and proceeded to investigate the disproportionate wealth acquired by A1 and A2. During the course of Page Nos.3/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 investigation, the investigating officer examined 71 witnesses and collected 102 documents. On investigation, it was revealed that at the commencement of check period i.e., on 01.04.2007, A1 and A2 were found to be in possession of pecuniary resources and properties worth about Rs.2,09,20,523/- (Statement-I, as appended to the Charge Sheet) in their names. At the end of the check period i.e., 31.03.2009, they were found to be in possession of pecuniary resources worth about Rs.4,63,38,368/-
(Statement-II, as appended to the Charge Sheet) in their names. Thus, during the check period, A1 and A2 had acquired assets and possessed pecuniary resources worth about Rs.2,54,17,845/- (Statement-V, as appended to the Charge Sheet).
(iii) Further, during the check period, the total income earned by A1 and A2 from their known sources of income was Rs.2,90,04,689/- (Statement-III, as appended to the Charge Sheet) and their incurred expenditures to the tune of Rs.1,76,61,018/- (Statement-IV as appended to the Charge Sheet) and thus, had a savings of Rs.1,13,43,671/- (Statement- VI, as appended to the Charge Sheet). Therefore, during the check period, A1 and A2 had acquired pecuniary resources worth about Rs.1,40,74,174/- Page Nos.4/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 (Statement –VII, as appended to the Charge Sheet) which are alleged to be disproportionate assets to their known source of income. Even though A2 is an separate income tax assessee and has her own sources of income, she is dependent of her husband (A1), who allowed her husband to acquire assets in her name and thus, she abetted A1 to commit the said offence. Further, sufficient opportunity was given to A1 and A2 to explain their amassing wealth disproportionate to their known sources of income during the check period, but they could not satisfactorily account for it.
(iv) Hence after completion of a fair investigation, the investigating officer filed a charge sheet on 03.01.2013 for the offences under Sections 13(2) read with 13(1) (e) PC Act, 1988 as against A1; and for the offences under Sections 109 IPC read with 13(2) and 13(1) (e) PCA Act, 1988 as against A2 and the same was taken on file in Spl.C.No.1 of 2013. Pending the above case, A1 and A2 filed separate petitions invoking Section 239 Cr.P.C., in Crl.M.P.Nos.205 and 206 of 2016 in Special Case No.1 of 2013 before the Court of the Special Judge/Chief Judicial Magistrate, Vellore, praying to discharge them from the charges levelled against them. The Page Nos.5/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 learned Special Judge, after hearing both the accused and the prosecution, vide common order dated 31.01.2017, allowed the said petitions and discharged A1 and A2 from the charges levelled against them observing that the prosecution has failed to prove prima facie case to frame charges against them. Aggrieved by the findings of the Court below, which eventually resulted in discharge of the accused, the State has preferred these criminal revision petitions.
4. Learned Additional Advocate General assisted by the learned Government Advocate (Crl.Side) appearing for the State submitted that M.Duraimurugan – A1, was the Minister of Public Works Department, Law and Prisons of Government of Tamil Nadu during the period between 13.05.2006 and 14.05.2011. During the said check period, he had been in possession of pecuniary resources and properties worth about Rs.1,40,74,174/- in his name and in the name of his wife - A2 far beyond their known source of income. The prosecution arrived the disproportionate amount by adopting the method of “the assets acquired during the check period – savings = disproportionate assets” i.e., Rs.2,54,17,845 – Rs.1,13,43,671 = Rs.1,40,74,174/-. Despite sufficient opportunity was given Page Nos.6/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 to A1 and A2 to offer their explanation, they failed to satisfactorily account for the said amount. Hence, the prosecution had laid a charge sheet against them contending that A1 as a public servant had obtained the said amount of Rs.1,40,74,174/- by committing criminal misconduct by acquiring and being in possession of pecuniary resources and properties in his name and in the name of his wife - A2. Even though A2 is a separate income tax assessee, for her own sources of income, she is dependent of her husband A1, who allowed her husband to acquire the said assets in her name and thus, she abetted A1 to acquire the said disproportionate assets.
4.1. He further submitted that the defence taken by A1 and A2 before the Court below is that the prosecution had taken into consideration the relevant particulars which are useful to them and left out some particulars, which are against them. In Statement – III, the prosecution had accepted the Income Tax returns of A1 and A2 with regard to profit from business, house property income and Rajammal exports and rent received without any deduction. However, the same parameter had not been followed for the income derived from agriculture of the accused and the prosecution with malafide intention, wantonly suppressed the actual agricultural income of Page Nos.7/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 A1 and A2 and fixed lower income by getting reports from the officers of the agricultural department, which is not correct. Originally, the respondents herein - A1 and A2 did not have any account for the agricultural income and expenses and hence based on the reports given by the officials of Revenue and Agricultural Department, the correct agricultural income of the accused should be fixed. However, the prosecution relied on the statements given by the accused before the Income Tax Department as it would be exaggerated.
4.2. He further submitted that while discharging A1 and A2 from the charged offences, the Court below erroneously came to a conclusion that there are numerous double entries, which have been wrongly calculated by the prosecution. In Statement –IV under the heading income paid by A.O. in Serial No.3, a sum of Rs.93,123/- is taken for consideration as expenses. The income tax returns filed by A-1 (Document No.55) in the profit and loss account statements under the heading direct expenses a sum of Rs.1,69,126/- was shown to have been spent from 1.4.2007 to 31.3.2008, but, under that heading TDS paid was shown as Rs.1,13,084/- and advance tax paid was shown as Rs.10,000/-, but the balance tax paid from the financial year was not brought under that heading. However, in Column - 3 Page Nos.8/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 of Statement – IV, the TDS paid from Salary and rent was a sum of Rs.1,13,084/- and the advance tax of Rs.10,000/- paid was given credit to and the balance tax of Rs.42,166/- was taken into account. Likewise, for the period between 2008-2009 out of the total tax of Rs.2,28,150/- TDS from Salary and rent of Rs.1,37,193/- and advance tax of Rs.40,000/- were given credit to and the balance tax of Rs.50,957/- paid were taken into account. So far, both the years put together and the balance tax paid by A-1 for a sum of Rs.93,123/- was alone shown as expenditure in Column-3, Statement –IV does not include the said tax amount of Rs.93,123/- . Therefore, it is not a double entry.
4.3. He further submitted that the further contention of the respondents is that under the head investment made by A-1 in Statement – IV in Serial No.6 a sum of Rs.11,12,506/- is shown as expenses towards investment and at the end of the check period in Statement –II, once again calculating the same amount as expenses would attract double entry are again not correct. In fact, within the check period A-1 had invested in his capital account a sum of Rs.5,81,695/- during the year 2007-2008 and a sum of Rs.5,30,811/- during the year 2008-2009 in total a sum of Rs.11,12,506/-. Page Nos.9/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 Further, in the income tax returns for the year 2007-2008, A1 has declared the capital as on 31.3.2008 as Rs.61,21,223/- and he has shown the drawing in capital account of a sum of Rs.3 Lakhs and payment of Rs.4,16,300/- to Chennai roofing. To suppress these things, he had inflated the agricultural income as Rs.8,07,649/- instead of Rs.2,71,042/-. The prosecution, after taking into account the above payments and the agricultural income etc., instead of Rs.61,21,223/-, a sum of Rs.55,39,528/- alone works out as capital as on 31.3.2008. Therefore, the excess amount of Rs.5,81,695/- was treated as investment capital account made during 2007-2008. Likewise, for the year 2008-2009 the capital as on 31.3.2009 was declared by A-1 as Rs.74,36,074/-. However, taking into account, the agricultural income as Rs.2,93,871/- instead of Rs.7,69,147/- and taking into account the drawing shown in capital account and other income and expenses, the capital as 31.3.2009 is only Rs.69,05,728/-. Therefore, the excess amount of Rs.5,30,811/- is taken as investment made in the year 2008-2009. Therefore, the investment made during both years works out to Rs.11,12,506/- and hence, there is no double entry as per the defence.
4.4. He further submitted that the further contention of the Page Nos.10/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 respondents is that similar calculations are made for the income tax paid and investment made by A-2. In Statement –IV, under the heading income tax paid by A-2 in Serial No.14, a sum of Rs.45,04,103/- is taken for consideration as expenses and that in Serial No.17 a sum of Rs.51,07,620/- is shown as expenses towards investments, so, once again calculating the same amount as expenses would amount to double entry, but the same are not correct. Further, the Court below failed to consider the facts that in the discharge petition, A-2 had contended that the investment of Rs.51,07,620/- which was made by the accused after the check period was included by the prosecution as expenses made by the accused during the check period in Statement - IV. However, on investigation, it would reveal that as on 01.4.2007, the opening balance of A2 is Rs.1,08,60,028/- and at the end of the financial year i.e., on 31.3.2008, she had closing balance as Rs.1,53,20,615/- in her capital account. In addition, she had obtained incomes from business is Rs.34,81,781/-, agricultural is Rs.29,900/-, from other sources is Rs.15,699/-, house property is Rs.17,79,667/-, Sales Tax FDR Rs.3,000/- and Rajammal Exports credit Rs.1,091/-, totalling a sum of Rs.53,11,078/- and thus, had a total amount of Rs.1,61,71,106/- in her Page Nos.11/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 capital account. During the above said period, she had spent Rs.10,19,235/-, drawn Rs.84,000/- from her capital account and paid Rs.15,08,614/- as income tax totaling Rs.26,11,849/-. Thus, she had actual remaining balance of Rs.1,35,59,257/-, whereas, she had shown the balance of Rs.1,53,20,615/-. Thus, the difference (Rs.1,61,71,106 – Rs.1,35,59,257/-) being Rs.17,61,358/- was treated as investment in capital account.
4.5. He further submitted that the Court below had erroneously come to a conclusion that in Serial No.15 of Statement – IV additional EB deposit of Rs.1,42,420/- is shown as expenditure, but the said amount had already been reflected in Serial No.61 of Statement – II i.e., investment in Mrs.Rajammal Exports by A2 as per the trial balance declared to the Income Tax authorities for the financial year 2008 – 2009 is inclusive of additional ED deposit and that naturally this amount would be boosted in the expenses table etc., are all not correct. The EB deposit at the beginning of the check period was Rs.24,500/- and at the end of check period was Rs.1,66,920/-. Therefore, the difference amount being Rs.1,42,420/- was treated as additional EB deposit during the check period and the same was rightly taken as expenses in Statement – IV.
Page Nos.12/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 4.6. He further submitted that A1 filed a writ petition in W.P.No.13788 of 2012 before this Court to quash the final opportunity notice on the ground that separate statements of accounts for A1 and A2, specifying the list of properties found to have been acquired disproportionate to known sources of income of A1, was not given, which came to be dismissed. Challenging the same, A1 preferred a writ appeal in W.A.No.1238 of 2012 before the Division Bench of this Court and the same was dismissed by this Court observing that the exact nature of the wealth possessed by the accused and whether the wealth is independently owned by his near relative is an issue which will have to be tried essentially in a trial. In such cases, the burden is upon the public servant to satisfy that the excess wealth possessed by him is attributable to known sources of income. He further submitted that in the present case, the assets shown in the name of A2, being the wife A1 is also the assets of A1, even though A2 has been income tax assessee and had independent source of income. Therefore, the entire income of A2 had been taken into account for the purpose of calculation of disproportionate assets. He further submitted that A1 and A2 had not given any authenticated documents before the competent authority Page Nos.13/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 while filing income tax returns, in support of their claim. The investigating officer had collected sufficient oral and documentary evidence to substantiate that the properties and pecuniary resources held by the accused had been acquired by illegitimate source, which will prove the guilt of the accused during trial. However, the trial Court failed to consider all those facts and erroneously discharged A1 and A2 from the charged offences, observing that prosecution has failed to establish prima facie case against A1 and A2. Therefore, there is a compelled reason to interfere with the decision of the trial Court and the prosecution has to be given opportunity to prove the offences committed by A1 and A2. Therefore, the order of the learned Special Judge is perverse and is liable to be set aside.
5. Learned Senior Counsel appearing for respective respondents submitted that there are no prima facie materials available against A1 and A2 to establish that they were having pecuniary resources and properties in their names, which were disproportionate to their known source of income. A1 and A2 had given satisfactory account supported by material evidence for the pecuniary resources in their possession during the check period, but the prosecution without considering the same has filed the final report. Page Nos.14/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 Further, there is no independent witness to prove the charges against them. The official witnesses, who had conducted the enquiry are merely hearsay witnesses.
5.1. A1, was a former Minister of Public Works Department, Law and Prisons of Government of Tamil Nadu during the period between 13.05.2006 and 14.05.2011. Apart from a public servant, he was also in possession of land property and other independent source of income from rent and agriculture. Similarly, A2 - Santhakumari is the Proprietrix of M/s.Rajammal Export and she is having independent agricultural lands and other movable and immovable properties and she has been an income tax assessee even from 1997. In spite of knowing fully well that A2, is an income tax assessee, the investigating officer, deliberately kept away her income and expenses and included with the income and expenses of A1 and also projected the same as disproportionate income of A1 and A2. During the check period A1 and A2 had not acquired any disproportionate assets and the case was registered against them only due to political motive. The Investigating Officer had failed to consider the backgrounds of A1 and A2 and also their source of income and laid charge sheet with ulterior motive. Page Nos.15/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 5.2. It is further submitted that the prosecution having admitted in their statement that A1 and A2 are two separate entities, ought to have considered the source of income assets, liabilities individually, but the source of income of A1 and A2 was clubbed together and shown as a single entity in the Statement appended to the final report. The inclusion of assets standing in the name of A2, as the assets of A1 is illegal. A2 has acquired properties from and out of her own resources and A2 having separate source of income to acquire properties. She has been unnecessarily dragged on by the prosecution as if she abetted A1 to amass wealth. Both the accused have not concealed any source of income before Income Tax Department for the financial year 2007-2008 and 2008-2009 and the Income Tax Returns filed by them were accepted by Income Tax Department. Further, the prosecution miscalculated the income of A1 and had included the self assessment tax paid by A2 a sum of Rs.15,48,115/- during financial year 2010-2011 as her income during the check period with the income of A1.
5.3. He further submitted that the prosecution had grossly reduced the agricultural income of A1 and A2. Originally, A1’s agricultural income declared and assessed by the Income Tax Department for the year 2007- Page Nos.16/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 2008 is Rs.8,07,649/- and for the year 2008-2009 is Rs.7,50,147/-. However, the prosecution had deliberately reduced the agricultural income as Rs.2,45,342/- and Rs.2,99,671/-, respectively for the respective period. Likewise, A2’s agricultural income declared and assessed by the Income Tax Department for the year 2007-2008 is Rs.2,82,643/- and for the year 2008-2009 is Rs.2,76,540/-. However, the prosecution had deliberately reduced the agricultural income as Rs.29,900/- and Rs.1,26,000/- for the respective period. Apart from that, there are numerous double entries, which have been wrongly calculated by the prosecution. The investigating officer without properly scrutinizing the records had come to a hasty conclusion by boosting the figures with wrong calculation. Further, the methodology adopted by the prosecution to establish the possession of disproportionate assets by the accused with reference to known source of income is absolutely erroneous. In the absence of any evidence showing that the properties stood in the name of A2 have been purchased out of the income of A2, clubbing of assets held by A2 with A1 is absolutely erroneous. The prosecution had fully aware that both A1 and A2 were having other sources of income. The source of income for the check period, the properties Page Nos.17/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 acquired and the assets at the end of the check period, if calculated by the prosecution properly would show that there would not be any disproportionate assets. Prosecution failed to consider all these aspects and in order to wreck vengeance of the political party, a false case was foisted against the accused. The trial Court, after analysing the materials and documents that were made available at the stage of framing charges and on their face value arrived at the right conclusion that charges could not be framed against the respondents-accused and discharged them from the charged offences observing that there is no prima facie case against the accused and there is no merit in these revision petitions and the same are liable to be dismissed.
5.4. In support of their contentions, the learned Senior counsel appearing for respective respondents - A1 and A2 relied upon the following judgments :
(i) A.V.Bellarmin and others Vs. V.Santhakumaran Nair reported in [(2015)SCC Online Mad 10358];
(ii) Dilawar Balu Kurane Vs. State of Maharastra reported in [(2002) 2 SCC135];
(iii) Vishnu Kumar Shukla and Another Vs. State of Page Nos.18/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 U.P reported in [(2023) 15 SCC 502 ];
(iv) Kedari Lal Vs. State of M.P reported in [(2015) 14 SCC 505];
(v) State of Karnataka Vs. B. Narayana Reddy reported in [(2002) Crl.LJ 845]
(vi) State rep.by the Dy.Supdt.of Police, Vigilance and Anti-Corruption, Cuddalore Detachment Vs. K.Ponmudi reported in [ (2006) 2 LW (Cri) 758];
(vii)Ananda Bezbaruah Vs. Union of India reported in [(1994) Crl.LJ12];
(viii) Ramanathan Vs. Station House Officer, Peralam Crime Branch reported in [MANU/TN/0434/1989];
(ix) State by SP through the SPE CBI Vs. Uttamchand Bohra reported in [(2022) 16 SCC 663];
(x) Krishnanand Agnihotri Vs. State of Madhya Pradsh reported in [(1977) 1 SCC 816];
(xi) DSP, Chennai Vs. K.Inbasagaran reported in [(2006) 1 SCC 420 ];
(xii) Vimaleshwar Nagappa Shet Vs. Noor Ahmed Shariff and Ors. reported in [(2011) 12 SCC 658];
(xiii) Amit Kapoor Vs. Ramesh Chander and Another reported in [(2012) 9 SCC 460];
(xiv) State of Gujarat Vs. Afroz Mohammed Hasanfatta reported in [(2019) 20 SCC 539];
(xv) Manik Majumder and Ors. Vs. Dipak Kumar Saha (Dead) Through Legal Representatives and Ors. reported in [(2023) 8 SCC 410];
(xvi) BSNL and Ors. Vs. Subash Chandra Kanchan and Anr. reported in [(2006) 8 SCC 279];
(xvii) State of Madhya Pradesh Vs. Mohanlal Soni reported in [(2000) 6 SCC 338];Page Nos.19/54
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 (xviii) S.K.Srivastav Vs. State rep.by its DSP (CBI) [order dated 16.06.2023 in Crl.A.No.220 of 2013on the file of this Court]; and (xix) P.Nallammal and Ors. Vs. State reported in [(1999) Crl.LJ 1591].
6. Heard the learned Additional Advocate General assisted by the learned Government Advocate (Crl.Side) appearing for the petitioner/State and the learned Senior Counsel appearing for the respective respondents/A1 and A2 and perused the materials available on record.
7. Admittedly, a case was registered in Crime No.17 of 2011 on the file of the Vigilance and Anti-Corruption Department against the respondents, arrayed as A1 and A2, for the offences punishable under Section 13(2) read with Section 13(1)(e) of P.C.Act. The allegations against the first respondent, M.Duraimurugan (A1), are that during his tenure as the Minister for Public Works Department, Law, and Prisons, Government of Tamil Nadu, between 13.05.2006 and 14.05.2011, he committed criminal misconduct by amassing pecuniary resources and properties, both in his own name and in the name of his wife-A2, which were grossly Page Nos.20/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 disproportionate to his known sources of income. The second respondent, his wife, was alleged to have abetted A1 in the commission of the said offence. In this context, it becomes essential to advert to Section 13(1)(e) of the P.C. Act, which defines criminal misconduct by a public servant:-
"Section 13: Criminal misconduct by a public servant:-
(1) ...
(a) ...
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income."
Explanation - For the purpose of this 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 a public servant."
The main allegation was that A1, either in his own name or through A2, possessed money and property that were far beyond his known legal income, and he failed to give a proper explanation for how he acquired Page Nos.21/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 them, as required under the rules and laws applicable to public servants. Upon completion of investigation, a charge sheet was filed and taken on file in Spl.C.No.1 of 2013 by the learned Special Judge, Vellore. However, during the pendency of the trial, the accused/respondents filed separate petitions in Crl.M.P.Nos.205 and 206 of 2016 under Section 239 Cr.P.C. seeking discharge. After hearing the respective counsel, the learned Special Judge, by a common order dated 31.01.2017, allowed the discharge petitions and consequently discharged the respondents/A1 and A2 from the said proceedings.
8. The primordial contention of the learned senior counsel for the respondents is that the prosecution’s methodology in establishing disproportionate assets is flawed. The clubbing of properties belonging to others, such as A2 with A1’s assets is unsustainable. A1 cannot be held responsible for properties in the names of individuals over whom he has no claim or control, especially when these properties were acquired from their independent income. The Investigating Officer wrongly linked these assets to A1 without any evidence that they were purchased with his income. The Trial Court held that the prosecution, only to boost the expenses and to add Page Nos.22/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 to the value of disproportionate income, clubbed the assets of A2 along with A1. In this context, it is pertinent to refer to the meaning of the expression "known sources of income," as explained by the Hon'ble Apex Court in the case of C.S.D. Swami v. State [AIR 1960 SC 7], wherein it has been observed as follows:
" Now, the expression 'known sources of income' must have reference to sources known to the prosecution on a thorough investigation of the case. It was not, and it could not be, contended that 'known sources of income' means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters 'specially within the knowledge' of the accused, within the meaning of Section 106 of the Evidence Act."
9. Further, the Hon’ble Supreme Court, in a recent judgments in the cases of State of Tamil Nadu v. R.Soundirarasu [2023 (6) SCC 768] and State of M.P. V. Awadh Kishore Gupta [2004 (1) SCC 691], reiterated the aforesaid principle and held as follows:
(i) State of Tamil Nadu v. R.Soundirarasu - 2023 (6) SCC 768 :
'' 35.The Explanation to Section 13(1)(e) defines the Page Nos.23/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 expression “known sources of income” and states that this expression means the income received from any lawful source and also requires that the receipt should have been intimated by the public servant in accordance with any provisions of law, rules or orders for the time being applicable to a public servant. This Explanation was not there in the Prevention of Corruption Act, 1947 (for short “the 1947 Act”). Noticing this fact in Jagan M. Seshadri v. State of T.N.[Jagan M. Seshadri v. State of T.N., (2002) 9 SCC 639 : 2003 SCC (L&S) 1494] , this Court has observed as under:
“7. A bare reading of Section 30(2) of the 1988 Act shows that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of the Act. It does not substitute Section 13 in place of Section 5 of the 1947 Act. Section 30(2) is applicable ‘without prejudice to the application of Section 6 of the General Clauses Act, 1897’. In our opinion, the application of Section 13 of the 1988 Act to the fact situation of the present case would offend Section 6 of the General Clauses Act, which, inter alia provides that repeal shall not (i) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or (ii) affect any investigation, legal proceedings or Page Nos.24/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 remedy in respect of any such rights, privilege, obligation, penalty, forfeiture or punishment.
Section 13, both in the matter of punishment as also by the addition of the Explanation to Section 13(1)(e) is materially different from Section 5 of the 1947 Act. The presumption permitted to be raised under the Explanation to Section 13(1)(e) was not available to be raised under Section 5(1)(e) of the 1947 Act. This difference can have a material bearing on the case.”
36. The Explanation to Section 13(1)(e) of the 1988 Act has the effect of defining the expression “known sources of income” used in Section 13(1)(e) of the 1988 Act. The Explanation to Section 13(1)(e) of the 1988 Act consists of two parts. The first part states that the known sources of income means the income received from any lawful source and the second part states that such receipt should have been intimated by the public servant in accordance with the provisions of law, rules and orders for the time being applicable to a public servant.
37. Referring to the first part of the expression “known sources of income” in N. Ramakrishnaiah v. State of A.P.[N. Ramakrishnaiah v. State of A.P., (2008) 17 SCC 83 : (2010) 4 SCC (Cri) 454] , this Court observed as under
: (SCC pp. 86-87, para 17) “17. ‘…6. The emphasis of the phrase “known sources of income” in Section 13(1)(e) [old Section 5(1)(e)] is clearly on the word “income”. It Page Nos.25/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term “income” by itself, is elastic and has a wide connotation. Whatever comes in or is received is income. But, however, wide the import and connotation of the term “income”, it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investment, and being further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term “Income”. Therefore, it can be said that, though “income” in receipt in the hand of its recipient, every receipt would not partake the character of income. Qua the public servant, whatever return he gets from his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft crime or immoral secretions by persons prima facie would not be receipt from the “known source of income” of a public servant.’ [Ed.: As observed in State of M.P. v. Awadh Kishore Gupta, (2004) 1 SCC 691 at p. 697, para 6] ”
38. The above brings us to the second part of the Explanation, defining the expression “such receipt should have been intimated by the public servant” i.e. intimation by the public servant in accordance with any provisions of law, rules or orders applicable to a public servant.
39. The language of the substantive provisions of Page Nos.26/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 Section 5(3) of the 1947 Act before its amendment, Section 5(1)(e) of the 1947 Act and Section 13(1)(e)of the 1988 Act continues to be the same though Section 5(3) before it came to be amended was held to be a procedural section in Sajjan Singh v. State of Punjab [Sajjan Singh v. State of Punjab, AIR 1964 SC 464] . Section 5(3) of the 1947 Act before it came to be amended w.e.f. 18-12-1964 was interpreted in C.S.D. Swami v. State [C.S.D. Swami v. State, AIR 1960 SC 7] , and it was observed : (C.S.D. Swami case [C.S.D. Swami v. State, AIR 1960 SC 7] , AIR pp. 10-11, paras 5-6) “5. Reference was also made to cases in which courts had held that if plausible explanation had been offered by an accused person for being in possession of property which was the subject-
matter of the charge, the court could exonerate the accused from criminal responsibility for possessing incriminating property. In our opinion, those cases have no bearing upon the charge against the appellant in this case, because the section requires the accused person to “satisfactorily account” for the possession of pecuniary resources or property disproportionate to his known sources of income. Ordinarily, an accused person is entitled to acquittal if he can account for honest possession of property which has been proved to have been recently stolen [see Illustration (a) to Section 114 of the Evidence Act, 1872]. The rule of law is that if there is a prima facie explanation of the accused that he came by the stolen goods in an honest way, the inference of Page Nos.27/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 guilty knowledge is displaced. This is based upon the well-established principle that if there is a doubt in the mind of the court as to a necessary ingredient of an offence, the benefit of that doubt must go to the accused. But the legislature has advisedly used the expression “satisfactorily account”. The emphasis must be on the word “satisfactorily”, and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the court that his explanation was worthy of acceptance.
6. Another argument bearing on the same aspect of the case, is that the prosecution has not led evidence to show as to what are the known sources of the appellant's income. In this connection, our attention was invited to the evidence of the investigating officers, and with reference to that evidence, it was contended that those officers have not said, in terms, as to what were the known sources of income of the accused, or that the salary was the only source of his income. Now, the expression “known sources of income” must have reference to sources known to the prosecution on a thorough investigation of the case. It was not, and it could not be, contended that “known sources of income” means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters “specially within the knowledge” of the accused, within the meaning of Section 106 of the Evidence Act. The prosecution can only lead evidence, as it has done in the instant case, to show that the accused was known to earn his living by service Page Nos.28/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 under the Government during the material period. The prosecution would not be justified in concluding that travelling allowance was also a source of income when such allowance is ordinarily meant to compensate an officer concerned for his out-of-pocket expenses incidental to journeys performed by him for his official tours. That could not possibly be alleged to be a very substantial source of income. The source of income of a particular individual will depend upon his position in life with particular reference to his occupation or avocation in life. In the case of a government servant, the prosecution would, naturally, infer that his known source of income would be the salary earned by him during his active service. His pension or his provident fund would come into calculation only after his retirement, unless he had a justification for borrowing from his provident fund. We are not, therefore, impressed by the argument that the prosecution has failed to lead proper evidence as to the appellant's known sources of income. It may be that the accused may have made statements to the investigating officers as to his alleged sources of income, but the same, strictly, would not be evidence in the case, and if the prosecution has failed to disclose all the sources of income of an accused person, it is always open to him to prove those other sources of income which have not been taken into account or brought into evidence by the prosecution.”
40. Even after Section 5(3) was deleted and Section 5(1)(e) was enacted, this Court in Wasudeo Ramchandra Kaidalwar [State of Maharashtra v.Wasudeo Ramchandra Page Nos.29/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 Kaidalwar, (1981) 3 SCC 199 : 1981 SCC (Cri) 690] has observed that the expression “known sources of income” occurring in Section 5(1)(e) has a definite legal connotation which in the context must mean the sources known to the prosecution and not sources relied upon and known to the accused. Section 5(1)(e), it was observed by this Court, casts a burden on the accused for it uses the words “for which the public servant cannot satisfactorily account”. The onus is on the accused to account for and satisfactorily explain the assets. Accordingly, in Wasudeo Ramchandra Kaidalwar [State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, (1981) 3 SCC 199 : 1981 SCC (Cri) 690] it was observed : (SCC pp. 204-205, paras 11-13) “11. The provisions of Section 5(3) have been subject of judicial interpretation. First the expression “known sources of income” in the context of Section 5(3) meant “sources known to the prosecution”. The other principle is equally well-settled. The onus placed on the accused under Section 5(3) was, however, not to prove his innocence beyond reasonable doubt, but only to establish a preponderance of probability. These are the well-settled principles : see C.S.D. Swami v. State [C.S.D. Swami v. State, AIR 1960 SC 7] ; Sajjan Singh v. State of Punjab [Sajjan Singh v. State of Punjab, AIR 1964 SC 464] and V.D. Jhingan v. State of U.P. [V.D. Jhingan v. State of U.P., AIR 1966 SC 1762] The legislature thought it fit to dispense with the rule of Page Nos.30/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 evidence under Section 5(3) and make the possession of disproportionate assets by a public servant as one of the species of the offence of criminal misconduct by inserting Section 5(1)(e) due to widespread corruption in public services.
12. The terms and expressions appearing in Section 5(1)(e) of the Act are the same as those used in the old Section 5(3). Although the two provisions operate in two different fields, the meaning to be assigned to them must be the same.
The expression “known sources of incomes” means “sources known to the prosecution”. So also, the same meaning must be given to the words “for which the public servant cannot satisfactorily account” occurring in Section 5(1)(e). No doubt, Section 4(1) provides for presumption of guilt in cases falling under Sections 5(1)(a) and (b), but there was, in our opinion, no need to mention Section 5(1)(e) therein. For, the reason is obvious. The provision contained in Section 5(1)(e) of the Act is a self-contained provision. The first part of the section casts a burden on the prosecution and the second on the accused. When Section 5(1)(e) uses the words ‘for which the public servant cannot satisfactorily account’, it is implied that the burden is on such public servant to account for the sources for the acquisition of disproportionate assets. The High Court, therefore, was in error in holding that a public servant charged for having disproportionate assets in his possession for which he cannot satisfactorily account, cannot be convicted of an offence under Section 5(2) read with Section 5(1)(e) of the Act unless the prosecution disproves all possible sources of income.
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13. That takes us to the difficult question as to the nature and extent of the burden of proof under Section 5(1)(e) of the Act. The expression “burden of proof” has two distinct meanings (1) the legal burden i.e. the burden of establishing the guilt, and (2) the evidential burden i.e. the burden of leading evidence. In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and that burden never shifts.
Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities. The ingredients of the offence of criminal misconduct under Section 5(2) read with Section 5(1)(e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the following facts before it can bring a case under Section 5(1)(e), namely, (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under Section Page Nos.32/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 5(1)(e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under Section 5(1)(e) cannot be higher than the test laid by the Court inJhingan case [V.D. Jhingan v. State of U.P., AIR 1966 SC 1762] i.e. to establish his case by a preponderance of probability. That test was laid down by the court following the dictum of Viscount Sankey, L.C., inWoolmington v. Director of Public Prosecutions [Woolmington v. Director of Public Prosecutions, 1935 AC 462 (HL)] . The High Court has placed an impossible burden on the prosecution to disprove all possible sources of income which were within the special knowledge of the accused. As laid down inSwami case [C.S.D. Swami v. State, AIR 1960 SC 7] , the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income i.e. his salary. Those will be matters specially within the knowledge of the public servant within the meaning of Section 106 of the Evidence Act, 1872. Section 106 reads:
‘106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.’ In this connection, the phrase the “burden of proof” is clearly used in the secondary sense, Page Nos.33/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 namely, the duty of introducing evidence. The nature and extent of the burden cast on the accused is well-settled. The accused is not bound to prove his innocence beyond all the reasonable doubt. All that he need to do is to bring out a preponderance of probability.”
41. While the expression “known sources of income” refers to the sources known to the prosecution, the expression “for which the public servant cannot satisfactorily account” refers to the onus or burden on the accused to satisfactorily explain and account for the assets found to be possessed by the public servant. This burden is on the accused as the said facts are within his special knowledge. Section 106 of the Evidence Act applies. The Explanation to Section 13(1)(e) is a procedural section which seeks to define the expression “known sources of income” as sources known to the prosecution and not to the accused. The Explanation applies and relates to the mode and manner of investigation to be conducted by the prosecution, it does away with the requirement and necessity of the prosecution to have an open, wide and roving investigation and enquire into the alleged sources of income which the accused may have. It curtails the need and necessity of the prosecution to go into the alleged sources of income which a public servant may or possibly have Page Nos.34/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 but are not legal or have not been declared. The undeclared alleged sources are by their very nature are expected to be known to the accused only and are within his special knowledge. (emphasis supplied) The effect of the Explanation is to clarify and reinforce the existing position and understanding of the expression “known sources of income” i.e. the expression refers to sources known to the prosecution and not sources known to the accused. The second part of the Explanation does away with the need and requirement for the prosecution to conduct an open ended or roving enquiry or investigation to find out all alleged/claimed known sources of income of an accused who is investigated under the PC Act, 1988. The prosecution can rely upon the information furnished by the accused to the authorities under law, rules and orders for the time being applicable to a public servant. No further investigation is required by the prosecution to find out the known sources of income of the accused public servant. As noticed above, the first part of the Explanation refers to income received from legal/lawful sources. This first part of the expression states the obvious as is clear from the judgment of this Court in N. Ramakrishnaiah [N. Ramakrishnaiah v.
State of A.P., (2008) 17 SCC 83 : (2010) 4 SCC (Cri) 454] . Page Nos.35/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017
42. Thus, it is evident from the aforesaid that the expression “known source of income” is not synonymous with the words “for which the public servant cannot satisfactorily account.” The two expressions connote and have different meaning, scope and requirements."
(ii) State of M.P. v. Awadh Kishore Gupta reported in (2004) 1 SCC 691:
''..Clause (e) of sub-section (1) of section 13 corresponds to clause (e) of sub-section (1) of section 5 of the Prevention of Corruption Act, 1947 (referred to as 'Old Act'). But there has been drastical amendments. Under the new clause, the earlier concept of "known sources of income" has undergone a radical change. As per the explanation appended, the prosecution is relieved of the burden of investigating into "source of income" of an accused to a large extent, as it is stated in the explanation that "known sources of income" mean income received from any lawful source, the receipt of which has been intimated in accordance with the provisions of any law, rules orders for the time being applicable to a public servant. The expression "known sources of income" has reference to sources known to the prosecution after thorough investigation of the case. It is not, and cannot be contended that "known sources of income"
means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person.Page Nos.36/54
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The phrase "known sources of income" in section 13(1)(e) {old section 5(1)(e)} has clearly the emphasis on the word "income". It would be primary to observe that qua the public servant, the income would be what is attached to his office or post, commonly known as remuneration or salary. The term "income" by itself, is elastic and has a wide connotation. Whatever comes in or is received, is income. But, however, wide the import and connotation of the term "income", it is incapable of being understood as meaning receipt having no nexus to one's labour, or expertise, or property, or investment, and having further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "income". Therefore, it can be said that, though "income" is receipt in the hand of its recipient, every receipt would not partake into the character of income. Qua the public servant, whatever return he gets of his service, will be the primary item of his income. Other incomes which can conceivably are income qua the public servant, will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime, or immoral secretions by persons prima facie would not be receipt from the "known sources of income" of a public servant.'' In the present case, admittedly, a notice was issued to the first accused, affording him an opportunity to explain the disproportionate assets.Page Nos.37/54
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 However, he failed to provide any explanation. Whether the properties in question were acquired by the first accused or are the independent properties of the respondents is a matter that can be determined only upon a full appreciation of evidence during trial, and not at the stage of discharge.
10. It is settled proposition of law that at the time of framing charges, the Court has to see the charge sheet/final report filed by the investigating officer and the materials viz. statement of witnesses and documents collected by the investigating officer during investigation and not the defence taken by the accused or the documents relied on by the accused. If such materials are prima facie sufficient to proceed with the case further, the Court shall proceed to frame charges against the accused. However, at the time of framing charges the Court cannot go into probative value of the materials produced by the prosecution. The validity and veracity of the same can be decided after trial and not at the stage of framing charges. The Court also cannot conduct roving enquiry on the materials produced by the prosecution at the time of framing of charges. No doubt, the Court cannot act merely as a post office or a mouthpiece of the prosecution, but has to Page Nos.38/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 consider the broad probabilities of the case, the total effect of the evidence and the documents produced before it. Further, after filing of the charge sheet, if prima facie materials are available to proceed with the case further, the Court has to accept the documents, which have been produced by the prosecution to find out the prima facie case. In this regard, it is pertinent to refer the case of the Hon'ble Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja and Ors reported in (1979) 4 SCC 274, wherein it held as follows:
“18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v.Ramesh Singh[(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : AIR 1977 SC 2018] the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this Page Nos.39/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence.
11. Therefore, at the stage of framing of charges, the truth, veracity and effect of the evidence produced by the prosecution need not be meticulously judged. In the present case, while allowing the discharge petition filed by the accused, the learned Special Judge, elaborately discussed the income of the accused and found that there is nothing disproportionate to the known source of the accused as alleged by the prosecution. The learned Special Judge ought to have framed charges and given an opportunity to the prosecution to prove its version and substantiate the materials collected during investigation, but could not simply discharge the accused from the allegations levelled against them.
12. It is settled proposition of law that once the prosecution after completion of investigation found prima facie material, the accused should be given an opportunity to submit their explanation. If the accused could Page Nos.40/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 not satisfactorily account for the same and after getting sanction from the competent authority, they can lay charge sheet and the prosecution has to be given an opportunity to prove its case and substantiate the materials collected during investigation and it cannot be rejected in-limine without giving an opportunity to the prosecution to substantiate the same during the trial.
13. The Hon'ble Supreme Court, in the case of State of Madhya Pradesh vs. Mohanlal Soni reported in (2000) 6 SCC 338, reiterating the above principle held that at the stage of framing charges, the Court has to consider whether prima facie there is sufficient material to proceed the case further as against the accused. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused and if the Court is satisfied that a prima facie case is made out for proceeding further, then charges have to be framed against the accused.
14. At this juncture, it would be useful to refer the judgment of the Hon'ble Supreme Court, in the case of State of Karnataka vs. Page Nos.41/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 M.R.Hiremath reported in (2019) 7 SCC 515, wherein, it has been observed as follows :
''25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N.v.N. Suresh Rajan[State of T.N. v. N.Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S) 721] , adverting to the earlier decisions on the subject, this Court held : (SCC pp. 721-22, para
29) “29. … At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground Page Nos.42/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”
15. Subsequently, the Apex Court in the case of State (NCT of Delhi) Vs. Shiv Charan Bansal And Others reported in (2020) 2 SCC 290, reiterating the above held as follows :
''38. At the stage of framing charges under Section 227 and Section 228 Cr.P.C, the Court is required to consider whether there was sufficient material on record to frame charges against Shiv Charan Bansal, Shailendra Singh, Lalit Mann and Rajbir Singh. The prosecution alleged that the offences under Section 120-
B, Section 302 read with Sections 120-B/34, Section 201 IPC and Section 25 of the Arms Act ought to have been framed.
Page Nos.43/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 I. Scope of Section 227 and 228 of the Cr.P.C.
39. The Court while considering the question of framing charges under Section 227 Cr.P.C has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused. The test to determine prima facie case would depend upon the facts of each case. If the material placed before the court discloses grave suspicion against the accused, which has not been properly explained, the court will be fully justified in framing charges and proceeding with the trial. The probative value of the evidence brought on record cannot be gone into at the stage of framing charges. The Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the ingredients constituting the alleged offence. At this stage, there cannot be a roving enquiry into the pros and cons of the matter, the evidence is not to be weighed as if a trial is being conducted. Reliance is placed on the Judgment of this Court in State of Bihar v. Ramesh Singh1 where it has been held that at the stage of framing charges under Sections 227 or 228 Cr.P.C., if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused had committed the offence, then the Court should proceed with the trial.
40. In a recent Judgment delivered in Dipakbhai Jagdishchandra Patel v. State of Gujarat and Another decided on 24.04.2019, this Court has laid down the law relating to framing of charges and discharge, and held that all that is required is that the court must be satisfied with the material available, that a case is made out for the accused to stand trial. A strong suspicion is sufficient Page Nos.44/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 for framing charges, which must be founded on some material. The material must be such which can be translated into evidence at the stage of trial. The veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged at this stage, nor is any weight to be attached to the probable defence of the accused at the stage of framing charges. The court is not to consider whether there is sufficient ground for conviction of the accused, or whether the trial is sure to end in the conviction.''
16. Therefore at the time of considering an application under Section 239 Cr.P.C. seeking discharge, the Court has to see the materials, which have been brought on record by the prosecution and the probative value of the same cannot be gone into at the time of framing charges.
17. One of the main reasons the trial court discharged the accused was that they had filed separate income tax returns during the check period, which the judge took as proof of financial independence. However, this reasoning is flawed. Just filing tax returns does not prove that the assets were lawfully acquired especially when benami (proxy) transactions are suspected. It is pertinent to note that the Income Tax Department reviews returns for tax compliance, but this case was initiated by the Vigilance and Anti-Corruption Department, not the tax authorities. The allegations Page Nos.45/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 involve corruption and possession of assets beyond known source of income, which fall under the Vigilance Department’s jurisdiction. Even if A1 and A2 reported their finances to the tax department, that does not prevent the Vigilance Department from conducting its own investigation. The two departments have different roles: the tax department focuses on tax matters, while vigilance investigates corruption. Just because the tax department accepted a return does not mean the assets are automatically legal in a corruption case. If the Vigilance Department finds that assets are disproportionate to income, it can proceed with legal action regardless of what the tax department has done.
18. In this regard it is pertinent to refer the decision of the Hon'ble Supreme Court in its judgment in the case of State of Karnataka Vs. J.Jayalalitha reported in (2017) 6 SCC 263, which has held that the property in the name of the income tax assessee itself cannot be a ground to hold that it actually belongs to such an assessee and if this proposition is accepted, it would lead to disastrous consequences. In such an eventuality it will give opportunities to the corrupt public servant to amass property in the Page Nos.46/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 name of a known person, pay income tax on their behalf and then be outside the mischief of law. Further, the submission of income tax returns and the assessment orders passed thereon, would not constitute a foolproof defence against a charge of acquisition of assets disproportionate to the known lawful sources of income as contemplated under the PC Act and further scrutiny / analysis thereof is imperative to determine as to whether the offence as contemplated by PC Act is made out or not.
19. In the present case, the learned Special Judge at the time of framing of charges disbelieved the materials produced by the prosecution and took into consideration the defence taken by the accused, which is against the proposition of law laid down by Hon'ble Supreme Court. Further, the same has to be substantiated during the trial by examining competent witnesses, therefore, without examining the competent witnesses and even at the stage of framing of charges trial Court cannot come to the conclusion that as the accused have intimated their known source of income for the check period by way of filing Income Tax returns and the same was accepted by the Income Tax Department, they should be discharged from Page Nos.47/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 the charges levelled against them. Therefore, the findings of the Court below in this regard is perverse.
20. The main allegation against A2 is that she abetted A1 to amass wealth, but it is the contention of the learned Senior Counsel for the respondents/accused that there is no abetment on the part of A2 and she has separate independent source of income which can be decided only after trial and not at this stage. In this regard it is useful to refer the decisions of the Hon'ble Supreme Court in the case of "P.Nallammal & Others-Vs-State of Tamil Nadu" (1999 SAR 804), wherein it is held as follows:
"Legislative intent is manifest that abettors of all the difference offences u/s. 13(1)(e) of the P.C. Act-1988 should also be dealt along with the public servant in the same trial held by the Special Judge".
21. In view of the above principles, the abettors of all the offence under the PC Act, should be dealt along with the public servant in the same trial held by the Special Judge. Therefore the reason stated by the learned trial Judge to dischargeA2 is not sustainable.
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22. Further, the learned Senior counsel appearing for the respective respondents had also argued that due to political motive a false case has been foisted against the accused and unfortunately the prosecution without considering the materials laid the charge sheet against the accused alleging that there is disproportionate income, which has not been satisfactorily accounted for the same. The allegation of malafides against the information or of known consequences cannot be itself a basis either quashing the proceedings or discharging the accused. Further, the materials collected during the investigation and evidence led in during investigation will decide the fate of the accused person. Once the investigating officer registered the case, found that prima facie made out and after investigation laid the charge sheet, only the Court has to see as to whether prima facie materials are available to proceed further against the accused. The Court has to frame charges and give an opportunity to prosecute to substantiate the materials to prove the case beyond reasonable doubt.
23. Therefore, while deciding the petition under Section 239 Cr.P.C., the Court cannot function as a Court of appeal. Further, the Hon'ble Page Nos.49/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 Supreme Court also reiterated the proposition that the High Court while deciding the petition for discharging, cannot appreciate the evidence, but can evaluate the materials and documents on records to the extent of its prima facie satisfaction about the existence of sufficient ground for proceeding against the accused. Therefore, at the time of framing of charges the Court has to see as to whether there exists prima facie allegations and sufficient grounds to proceed against the accused.
24. Therefore, once the Court finds prima facie materials available to proceed with case further as against the accused, it is the duty of the Court to give an opportunity to the prosecution to substantiate the materials to prove the case and the Court cannot interpret the materials and statement of witnesses on its own, unless they are examined before the Court. Further, even before filing of the discharge petition, A1 filed a writ petition in W.P.No.13788 of 2012 before this Court to quash the final opportunity notice and the same was dismissed. Challenging the same, A1 preferred a writ appeal in W.A.No.1238 of 2012 before the Division Bench of this Court and the same was dismissed by this Court observing that the grounds Page Nos.50/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 raised by the petitioner therein are matters for trial, dehors subsequently the respondents herein filed the discharge petitions, the trial Court failed to consider the materials placed before it and settled proposition of law held by the Hon’ble Supreme Court and erroneously discharged them from the charges levelled against them. The decisions relied upon by the learned Senior Counsel for the respondents/accused are not applicable to the facts of the present case on hand.
25. This Court has carefully gone through the allegations, charge sheet and the documents filed by the prosecution and also the statement of witnesses annexed and also the order passed by the learned Special Judge, this Court is of the view that the learned Magistrate traversed beyond the scope of Section 239 Cr.P.C., and this Court finds that there is prima facie materials to proceed with the case further against the accused and the grounds taken by the respondents before the Special Court for discharging the respondents are nothing but a defence, which are matter for trial and therefore, under these circumstances, the findings given by the Special Court is perverse.
Page Nos.51/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 26 Therefore these revisions are allowed and impugned common order dated 31.01.2017 passed in Crl.M.P.Nos.205 and 206 of 2016 by the Special Judge/Chief Judicial Magistrate, Vellore, is hereby set aside and the trial Court is directed to frame charges against A1 and A2 and proceed with the case further in accordance with law. Further, since the check period is 2007-2009 and the charge-sheet was also filed in the year 2013, the trial Court is directed to conduct trial on day-to-day basis and dispose of the case on merits in accordance with law within a period of six months from the date of receipt of a copy of this order.
24.04.2025 Index : Yes/No Neutral Citation Case : Yes/No Speaking Order : Yes/No ms Page Nos.52/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 To
1. The Special Judge/Chief Judicial Magistrate, Vellore.
2. The Public Prosecutor, High Court, Madras – 600 104, [V & A.C., Vellore Crime No.17 of 2011] Page Nos.53/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm ) Crl.R.C.Nos.485 and 486 of 2017 P.VELMURUGAN, J ms Crl.R.C.Nos.485 and 486 of 2017 24.04.2025 Page Nos.54/54 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 07:27:56 pm )