Madras High Court
V.M.K.Moorthy vs Unknown on 25 January, 2012
Author: R.Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.01.2012 CORAM: THE HONOURABLE MS. JUSTICE R. MALA Criminal Appeal No.696 of 2005 V.M.K.Moorthy .. Appellant/Accused v. State rep. by Deputy Superintendent of Police Vigilance and anti-Corruption Erode-3. .. Respondent/Complainant (Cr.No.2/AC/94 Prayer: Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment of conviction and sentence passed by the learned Chief Judicial Magistrate-cum-Special Court, Erode, in C.C.No.22 of 2000, dated 12.08.2005. For Appellant : Mr.N.Manokaran For Respondent : Mr.R.Prathap Kumar Government Advocate (Crl.side) J U D G M E N T
This appeal arises out of the judgment of conviction and sentence dated 12.08.2005, made in C.C.No.22 of 2000, on the file of the learned Chief Judicial Magistrate-cum-Special Court, Erode, whereby the appellant/accused was convicted for the offence 13(2) read with 13(1)(c) of Prevention of Corruption Act and sentenced to undergo one year rigorous imprisonment and imposed a fine of Rs.1,000/- in default in payment to undergo three months' rigorous imprisonment, stating that the appellant herein, who was working as Assistant Executive Engineer, Barriage Power House-III, TNEB, Kutharaikalmedu, Bhavani Taluk, Erode District, accumulated assets disproportionate to the known source of his income.
2.The case of the prosecution is as follows:
(i)The appellant/accused was joined as Instrument Mechanic Grade-II in the year 1972 and he was posted as Junior Engineer, TNEB, in the year 1973 and then he was promoted as Assistant Executive Engineer. He is a Public Servant. On 01.01.1989, he possessed the property worth about Rs.24,550/-. As on 27.04.1993, the value of the property he possessed was Rs.10,51,485/-, but his income was only Rs.3,07,635/- during the check period between 01.01.1989 to 27.04.1993. The expenditure incurred by him during the said check period was Rs.73,357/- and his savings was only Rs.2,34,278/-. But he made construction and possessed the property more than Rs.10,26,935/-. Hence, he was charge sheeted for the offence under Section 13(2) r/w 13(1)(c) of P.C. Act.
(ii) The appellant/accused has purchased the property vide sale deed dated 20.08.1981 under Ex.P2, after obtaining permission from his Superior. P.Ws.2 and 3 are one of the vendors and the document has been registered by P.W.4. The appellant/accused herein has mentioned his wife, father, mother, sister and his father-in-law have provided financial assistants for making construction in the property purchased under Ex.P2.
(iii)Superintendent of Police issued an order under Ex.P27 to P.W.17-Deputy Superintendent, to take up the matter for investigation, who in turn, took up the matter for investigation. He received records from the Tahsildar-P.W.6 and then he got income certificate of father of the appellant and income certificate of Muthusamy, who is the father-in-law of the appellant. In turn, P.W.6-Tahsildar and P.W.8-Assistant Commissioner have directed the Village Administrative Officer related to the concerned District to make a discrete enquiry and file a report. In pursuance of the same, P.W.5-Seerangan, Village Administrative Officer, made a discreet enquiry and filed Ex.P3 report. P.W.7-M.Krishnamoorthy, V.A.O. filed his report under Ex.P4 and P.W.11-Murugesan, V.A.O. filed his reports under Exs.P8 and P9. Thereafter, P.W.17 examined P.W.9-Executive Officer, Town Panchayat and obtained a file relating to the sanction of the construction of the building in the property purchased under Ex.P2. Then, he got Ex.P6-Evaluation report from P.W.10-Palanisamy, who is an Executive Engineer, P.W.D. P.W.17 then examined P.W.12-Administrative Supervisor, TNEB and obtained a file relating to the permission sought for by the appellant/accused to construct a house, which were marked as Ex.P10. He examined P.W.13-Ananda Kumar, Income Tax Officer and obtained Ex.P19-income tax return of Muthusamy, who is the father-in-law of the appellant and Pandian, who is the brother-in-law of the appellant. P.W.17 also examined Administrative Manager as P.W.14 and obtained property statement furnished by the appellant under Exs.P14, P15, P20 and P21. Then P.W.17 obtained Ex.P22-Expenditure statement from the Assistant Director (Statistics Department), who was examined as P.W.15.
(iv)P.W.16-Inspector obtained Ex.P23-file relating to approval and sanction of proposed building and also obtained sanction order for prosecution under Ex.P1 from sanctioning authority P.W.1-Chief Engineer, TNEB. Thereafter, he filed a final report against the appellant herein for the offence 13(2) read with 13(1)(c) of P.C. Act.
3.The Special Court after following the procedure framed necessary charges against the accused. The accused pleaded not guilty. The Special Court examined P.W.1 to P.W.17 and marked Exs.P1 to P33. On the side of the defence, D.W.1-mother of the appellant, D.W.2-his wife, D.W.3-his sister and D.W.4-Mason, who constructed the house, were examined. On the basis of the oral and documentary evidence, the Special Court came to the conclusion that the accused is guilty of the offence and convicted and sentenced him as indicated above.
4.Challenging the order of conviction and sentence, Mr.N.Manokaran, the learned counsel appearing for the appellant/accused would rise the following four points:
(i)The sanction order under Ex.P1 is not in accordance with law and there is no application of mind by P.W.1, while accorded the sanction.
(ii)The Evaluation report Ex.P6 submitted by P.W.10 is not admissible in evidence and it is not true and genuine document.
(iii)Explanation for the known source of income submitted by the appellant/accused has not taken into consideration neither by investigating agency nor by the Special Court.
(iv)There is a delay in preferring the complaint and investigation.
5.Resisting the same, Mr.R.Prathap Kumar, learned Government Advocate (Crl.side) would submit that the appellant/accused has submitted his property statement in the year 31.12.1990 and at that time, he possessed the property only worth about Rs.24,550/-, as on 1.1.1989. But he possessed the property at the value of Rs.10,51,485/- on 27.04.1993. During the check period between 01.01.1989 and 27.04.1993, the income of the appellant was Rs.3,07,635/- and his expenditure was Rs.73,357/- as per Ex.P22. So the appellant acquired disproportionate wealth to the tune of Rs.7,92,657/-. He further submitted that Ex.P1-sanction order has been accorded by the competent authority after applying his mind. Therefore, Ex.P1 is valid.
6.Evaluation Report under Ex.P6 has been accepted by the appellant in his explanation under Ex.P26, wherein the appellant has given his explanation accounting his known source of income and savings towards the assets value of Rs.10,00,000/-, which was received by him in various source. Hence the argument advanced by the learned counsel for the appellant that the Evaluation report has not been accepted by the appellant, does not merit acceptance.
7.Learned Government Advocate (Crl. Side) further submitted that the explanation submitted by the appellant/accused for known source of income has been accepted by the investigating agency to the tune of Rs.1,00,000/- from his father and Rs.50,000/- from his father-in-law. The Special Court also considered the above aspect. He would further submit that F.I.R. and investigation has been done in proper manner and the delay will not vitiate the entire proceedings. Hence he prayed for the dismissal of the appeal.
8.Both sides counsel relied upon the decisions of the Apex Court as well as this High Court, to substantiate their arguments.
9.The first point is to be decided that whether the sanction order is valid? Admittedly, the appellant herein was appointed as Instrument Mechanic in the year 1972 and he was promoted as Junior Engineer, TNEB, in the year 1973. He purchased the property jointly with his wife on 20.08.1981 under Ex.P2 from P.W.2 and P.W.3 and the same was registered by P.W.4 joint Sub-Registrar.
10.On perusal of the property statement filed by the appellant/accused under Ex.P21, dated 05.02.1986, it shows that the appellant has given his property statement up to December 1985. In Ex.P21, it was stated that the appellant purchased the property on 20.8.1981 and obtained sanction for purchasing the property on 28.09.1981. So the appellant obtained sanction only after purchasing the property (i.e.) on 28.09.1981.
11.Ex.P10 is a official file relating to the appellant, which was maintained by the appellant's office and marked through P.W.12-Administrative Supervisor, TNEB. It shows that the appellant filed an application before TNEB requesting to accord permission to construct a house, which was marked as Ex.P12 and at that time, Assistant Divisional Engineer, TNEB returned the same. On 12.10.1987, the Regional Chief Engineer, Distribution/Coimbatore, issued a direction to the Superintending Engineer, Erode, making some queries and the same was marked as Ex.P11. As per Ex.P12, the appellant estimated the total cost of the land and building to the tune of Rs.1,65,000/-, in page-3, he has given the particulars about the cost of the proposed construction, which is as follows:
(i) Own savings :Rs.10,000/-
(ii)Loans/advances :It is proposed to get Department
HBA loan for Rs.1,00,000/-
(iii)Interest free assistance
from my father from his
own savings :Rs.20,000/-
(iv) By selling my own
jewels of 80 gms. :Rs.20,000/-
The total cost of the proposed construction given by the appellant was Rs.1,65,000/-. On 02.11.1988, as per Ex.P13, sanction has been sought for by the appellant. Exs.P14 and P15 are the property statements filed by the appellant during the year 1985 and 1990. So the appellant sought for permission to construct his house only to the tune of Rs.1,65,000/- and the source for cost of the construction also given by him.
12.But P.W.10-Palanisamy, Executive Engineer, P.W.D, estimated the cost of the construction and gave an Evaluation Report, which was marked as Ex.P6, in which, he estimated the value of the building to the tune of Rs.10,26,935/-. Thereafter, P.W.16 gave a requisition for sanction and P.W.1 accorded the sanction for prosecution as per Ex.P1.
13.Now this Court has to decide whether the sanction order under Ex.P1 is in accordance with law? The learned counsel appearing for the appellant would submit that P.W.1 did not apply his mind while accord the sanction. One Assistant namely, Babu, who prepared Ex.P1, was not examined before the trial Court. Hence the learned counsel prayed that the sanction order is invalid. To substantiate the same, he relied upon the decisions of the Apex Court as well as this Court.
14.Now this Court has to consider the following decisions relied upon by the learned counsel for the appellant Mr.N.Manokaran:
(i) (2005) 8 SCC 370 (State of Karnataka through CBI v. C.Nagarajaswamy) with (State of Karnataka through CBI v. M.K.Vijayalakshmi) in para-14, it is held as follows:
"14.Ordinarily, the question as to whether a proper sanction has been accorded for prosecution of the accused persons or not is a matter which should be dealt with at the stage of taking cognizance. But in a case of this nature where a question is raised as to whether the authority granting the sanction was competent therefor or not, at the stage of final arguments after trial, the same may have to be considered having regard to the terms and conditions of service of the accused for the purpose of determination as to who could remove him from service.
15.Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regards sanction may be determined at an early stage.
16.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. Even such a plea can be taken for the first time before an appellate Court. "
But the above citation is not applicable, because the Special Court discharged the respondent on the ground that the sanction for prosecution accorded by P.W.11 was illegal. Subsequently, a fresh charge sheet was filed after obtaining an order of sanction which came to be challenged before the High Court under Section 482 Cr.P.C.
15.But here, in the case on hand, the sanction order has been obtained on 17.04.2000 and signed on 22.04.2000, after that only, the charge sheet was filed for taking cognizance of the offence. So the above citation is not applicable to the facts of the present case.
(ii)(2007) 11 SCC 273 (State of Karnataka v. Ameerjan) in para-9, 10 and 19, it is held as follows:
"9.We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.
10. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayukta. Even the said report has not been brought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police, Karnataka Lokayukta had placed on record the materials collected on investigation of the matter which would prima facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced.
19.In this case, the High Court called for the original records. It had gone thereinto. It was found that except the report, no other record was made available before the sanctioning authority. The order of sanction also stated so. PW-8 also did not have the occasion to consider the records except the purported report."
In para-19 of the above citation, it was held that except the report, no other record was made available before the sanctioning authority and the order of sanction also stated so. PW-8 therein also did not have the occasion to consider the records except the purported report. But the above argument does not hold good, because, in the case on hand, P.W.17 deposed that all the documents have been produced before P.W.1. P.W.1 after considering the same, accorded the sanction.
(iii) Unreported judgment of this Court made in Crl.A.Nos.372 and 359 of 2006, dated 20.10.2011 (R.Gunalan and another v. The State by Deputy Superintendent of Police) in para-26 to 29, it is stated as follows:
"26. As held by the Honourable Supreme Court in various cases that the need for sanction has arisen because it is in public interest that a public servant should be saved from the harassment of frivolous or unsubstantiated allegations. Grant of sanction is not an idle formality or an acrimonious exercise, but a solemn and sacrosanct act which affords protection to Government servants and must therefore be strictly complied with before any prosecution can be launched against a public servant concerned. It is also held that the impugned order of conviction cannot be reversed on the ground of irregularity in the sanction unless failure of justice has occasioned thereby.
27. In the instant case, PW.16 the investigating officer, who had been examined to speak about the grant of sanction by PW.1 the sanctioning authority, has stated as below:-
VERNACULAR (TAMIL) PORTION DELETED His evidence indicated that PW.1 had perused the complaint, FIR copy and other documents produced by the investigating officer only on 17.09.2001. PW.1 in his evidence would only state that he received the requisition from the Director, Vigilance and Anti Corruption dated 14.05.2001 and a Police Officer from Erode Vigilance Department met him and produced the FIR copy and other relevant records. He is silent about when those records were produced before him. In the sanction order Ex.P1 in the reference column only the report of Director of Vigilance and Anti Corruption, Chennai is referred to and no other relevant records are referred to. The sanction order is dated 19.07.2001, but the same has been signed on 31.07.2001 by the Assistant Director, Survey and Land Records, Erode.
28. It appears from Ex.A1 that the sanctioning Authority had only perused the report of the Director of Vigilance and Anti Corruption. In the light of testimony of PW.16, whose evidence indicated that on 17.9.2001 he produced the complaint, FIR copy and other relevant records to PW.1 and satisfied him as to the existence of prima facie case against the Appellants, it has to be held that all relevant materials were not placed before him at the time of sanction. It appears that PW.1 had an occasion only to consider a report of the Vigilance Department. Even if such report is a detailed one, such report cannot be held to be a complete record required to be considered for sanction on application of mind to the relevant materials on record. Ex.P1 sanction order does not even mention the fact that the records were either received or perused or that they were considered and in the absence of this, merely because PW.1 was examined, it would be difficult to hold that the authority in question had duly applied its mind before passing the order of sanction.
29. A casual reading of sub sections (3) and (4) of Section 19 of the Prevention of Corruption Act, 1988, with the explanation provided therefore, provides the guiding factors to accord sanction as has been clearly spelt out under sub section (1) and (2). This would mean, however, that the burden of proof is clearly on the Prosecution to show that the sanction accorded in a given case is valid in law and as such, burden includes proof that the sanctioning authority has accorded the sanction with reference to the facts to which the prosecution was to be based. In that context, it has become essential for all the facts which were relied on to be referred on the face of the sanction or it might be proved by independent evidence that the sanction was accorded for Prosecution after those facts had been placed before the sanctioning Authority. In this case, both PW.1 and PW.16 the investigating officer's evidence does not indicate that the sanction was accorded after those facts and relevant records had been placed before the sanctioning Authority. In view of the same, I am of the considered view that it has resulted in the failure of justice to the accused."
But in para-26, it was held that considering the evidence of P.W.1, the learned Single Judge has held that the sanction has not accorded after applying his mind.
16.Resisting the same, Mr.R.Prathap Kumar, learned Government Advocate would rely upon the decision reported in (2010) 2 SCC (cri) 272 (State of Madhya Pradesh v. Jiyalal) in para-8, it is held as follows:
"8.It was also not justified for the learned Single Judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bona fide manner. It was of course open to the respondent to question the genuineness or validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution."
Considering the citations along with the facts of the present case, P.W.1 is a competent person to issue sanction order. There is no quarrel over the same.
17.The only question is that whether P.W.1 applied his mind or not, while he was according sanction for prosecution. On perusal of Ex.P1-sanction order, P.W.1 mentioned all the particulars for according sanction. He also furnished annexures 1 to 7 stating that what are the assets acquired by the Officer likely, savings and what are the disproportionate assets. So the sanction order under Ex.P1 would clearly prove that P.W.1 has accorded sanction after applying his mind.
18.Now this Court has to consider the evidence of P.W.1 and P.W.17. P.W.1 in his cross-examination, stated that Mr.Pari- investigating officer, who was examined as P.W.17, produced all the documents relating to the appellant and explained the same. In page-1 of his chief-examination, he specifically mentioned the documents viz., xerox copy of F.I.R, statement of witnesses, Evaluation report, property statement submitted by the appellant, pay drawn particulars, statement of property Nos.1 to 7, Memo issued by Vigilance officer to the accused and Explanation given by the appellant/accused. After perusing the above said documents, P.W.1 accorded sanction. In his cross-examination, nothing has been culled out. P.W.1 fairly conceded that after P.W.17 met him and sought for sanction, he gone through the document and prepared the sanction proceedings. As per the decision reported in (2010) 2 SCC (cri) 272 (State of Madhya Pradesh v. Jiyalal), according the sanction in discharge of routine official functions and hence there is a presumption that the same was done in a bona fide manner. The evidence of P.W.1 has been fortified and corroborated by P.W.17.
19.P.W.17 in his chief-examination, stated that he met the Chief Engineer, Chennai and after producing all the documents and gave explanation, he obtained a sanction order. So considering the evidence of P.W.1 and P.W.17, I am of the view that Ex.P1- Sanction order has been accorded by P.W.1, after applying his mind. So the argument advanced by the learned counsel for the appellant that P.W.1 did not apply his mind while according sanction order, does not merit acceptance.
20.P.W.10, an Executive Engineer, P.W.D., is a competent person, who gave Ex.P6-Evaluation report. The learned counsel for the appellant would submit that P.W.10 has not enclosed any document to substantiate his report regarding the value of the raw materials and on what basis, he estimated Rs.10,26,935/-. P.W.10 inspected the property on 27.04.1993 and submitted Ex.P6-Evaluation report within 15 days to P.W.16. But the report was not marked and it was suppressed by the prosecution. Ex.P6 was prepared on 12.7.1993. So this document (i.e.) Ex.P6 is only fabricated document. But the above argument does not hold good, because while perusing the explanation offered by the appellant/accused in Ex.P26, in para-(ii)(b), (c), (d) and (e), he stated that how he got Rs.10,00,000/-.
21.At this juncture, it is appropriate to consider the evidence of D.W.4. D.W.4 is the Mason, who supervised the construction of the building owned by the appellant, with the help of father of the appellant. P.W.10-Palanisamy, in his evidence, stated that the ground and first floor was constructed between 1990 & 1991, which was estimated at Rs.5,86,848/- and the second floor was constructed between 1991 & 1992, which was estimated at Rs.3,25,279/-. Totally, he estimated at Rs.10,26,935/- which includes the cost of water tank, water connection etc. In his cross-examination, a suggestion was posed to him that he has given a report only to the extent of Rs.6 to 7 lakhs and subsequently, it was altered. But that suggestion was denied by him. So it would show, P.W.10 himself admitted that the value of the building is more than Rs.6,00,000/-. During the check period between 01.01.1989 and 27.04.1993, the total income of the appellant/accused is Rs.3,07,635/-. The amount received from his father is Rs.1,00,000/- and financial assistance by his father-in-law is Rs.50,000/- and the sale of 80 gms. of gold ornaments possessed by his wife is Rs.20,000/-, his subsisting allowance from 11.12.1991 to September 1992 is Rs.17,107/- and net pay and all other allowances from 01.01.1989 to 10.12.1991 is Rs.1,20,528/-. It shows that his suggestion itself would prove that the appellant made a construction disproportionate to the known source of income. As already stated, the appellant has given his explanation in Ex.P26 that what is the source of income and how he received the amount of Rs.10,00,000/- for construction of the building. It is also pertinent to note that the electricity service connection obtained on 17.03.1995. In Ex.P6, P.W.10 has mentioned the measurements, quantity, description of the work, rate and cost of the construction. Since the appellant herein has given explanation that in what way he acquired the cost of the construction to the tune of Rs.10,00,000/- and above, it is not safe to argue that Ex.P6 is not true and genuine document. Once the accused admitted the Evaluation report and offered his explanation for the same, the argument advanced by the learned counsel for the appellant that the Evaluation report is not true and it cannot be accepted is unacceptable one.
22.This Court has to consider, whether the explanation for known source of income given by the appellant has bee considered by the investigating agency as well as the Special Court? To substantiate his argument, the learned counsel for the appellant relied upon the following decisions:
(i) (1973) 2 SCC 808 (Kali Ram v. State of Himachal Pradesh) in para-23, it is held as follows:
"23.Observations in a recent decision of this Court, Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal."
(ii) 1999 (6) SCC 559 (P.Nallammal and another v. State represented by Inspector of Police) in para-19 and 20, it is held as follows:
"19.Shri K.K. Venugopal endeavoured to establish that the offence under Section 13(1)(e) of the P.C. Act is to be understood as an offshoot of the different facets of misconduct of a public servant enumerated in clauses (a) to (d) of the sub-section which a public servant might commit. According to him, unless the ill-gotten wealth has a nexus with the sources contemplated in the preceding clauses the public servant cannot be held guilty under clause (e) of Section 13(1). Learned senior counsel elaborated his contention like this: If a public servant is able to account for the excess wealth by showing some clear sources, though not legally permissible, but not falling under any of the preceding clauses of the sub-section, he would be discharging the burden cast on him. He cited an example like this:
If the public servant satisfies the court that the excess wealth possessed by him is attributable to the dowry amount which he received from the father-in-law of his son, the public servant is not liable to be convicted under the aforesaid clause.
20.The above contention perhaps could have been advanced before the enactment of the P.C. Act, 1988 because Section 5(1)(e) of the old P.C. Act did not contain an "Explanation" as Section 13(1)(e) now contains. As per the Explanation the "known sources of income" of the public servant, for the purpose of satisfying the court, should be "any lawful source". Besides being the lawful source the Explanation further enjoins that receipt of such income should have been intimated by the public servant in accordance with the provisions of any law applicable to such public servant at the relevant time. So a public servant cannot now escape from the tentacles of Section 13(1)(e) of the P.C. Act by showing other legally forbidden sources, albeit such sources are outside the purview of clauses (a) to (d) of the sub-section."
(iii) (2002) 9 SCC 639 (Jagan M.Seshadri v. State of T.N.) in paragraph-9, it is held as follows:
"9. The explanation offered by the appellant has not been accepted by the High Court by invoking proviso to Section 13(1)(e). The High Court has opined that since the amount allegedly received by the appellant from his mother-in-law had "not been intimated in accordance with the provisions of law", his explanation is not acceptable and the appellant would be deemed to have committed criminal misconduct within the meaning of Section 13(2) of the 1988 Act. We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so."
(iv) 2006-1-L.W. (crl.) 421 (T.Subramanian v. State of Tamil Nadu) in para-7, it is held as follows:
"7. .. .. It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability."
He submitted that the plausible explanation Ex.P26 is sufficient to exonerate the appellant from the charges levelled against him.
23.The learned Government Advocate (Crl.side) also relied upon the following decisions:
(i) 2004 Crl.L.J.598 (State of Madhya Pradesh v. Awadh Kishore Gupta and others) in para-5 to 7, it is held as follows:
"5. .. .. 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. 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').
6.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.
7.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."
(ii) The above citation was also relied in 2009 Crl.L.J.1767 (N.Ramakrishnaiah (dead) through Lrs. v. State of A.P.) .
In the above citations, the burden cast upon 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."
24.Considered the citations along with Exs.P19-Income tax return of appellant's father-in-law and P26-explanation submitted by the appellant. In Ex.P19, P.W.13 deposed about the description of the loan given by Muthusamy, who is the father-in-law of the appellant. At the time of according sanction for prosecution, the amount given by Muthusamy has been taken into consideration. As per Annexure-III, it was specifically stated that "Financial assistance by Tr.P.N.Muthusamy to his daughter Tmt.Tamilarasi during 1992 Rs.50,000/-". In Ex.P26, the appellant stated that how he meet out Rs.10,00,000/-. In page-4 of his explanation, he stated that his father's earnings and savings amounting to Rs.5,00,000/-; his sister's contribution amounting to Rs.50,000/-; his earnings since 1972 to 1989=Rs.3,00,000/-; his wife's contribution since her marriage to the tune of Rs.50,000/-; his mother's earnings and savings amounting to Rs.50,000/- and loan obtained through cheque from his father-in-law amounting to Rs.50,000/-. The sanctioning authority, investigating agency and the Special Court had only accepted the contributions of the father and father-in-law to the tune of Rs.1,00,000/- and Rs.50,000/- respectively. Even though the mother of the appellant, wife, sister were examined as D.W.1, D.W.2 and D.W.3, their evidence were not convincing. There is no iota of evidence to show that their contributions amounting to Rs.50,000/- each.
25.At this juncture, it is appropriate to consider Ex.P12 requisition, dated 22.7.1988, submitted by the appellant for requesting permission to construct the building, in which, he stated that he sought for permission to construct the building worth about Rs.1,65,000/- and got financial assistance from his father to the tune of Rs.20,000/- and sold 80 gms of gold ornaments amounting to Rs.20,000/-. His own savings Rs.10,000/- and loan & advance is Rs.1,00,000/-. This requisition was submitted by the appellant much prior to the lis. After investigating agency investigated the matter and issued the memo under Ex.P25, the appellant sent explanation under Ex.P26. In the explanation offered by the appellant in Ex.P26, he stated that his earnings since 1972 to 1989 is Rs.3,00,000/-, but it is unacceptable, because in his property statement, he never mentioned that he is having savings to the tune of Rs.3,00,000/-. In such circumstances, the argument advanced by the learned counsel for the appellant does not merit acceptance. The investigating agency as well as the Special Court considered only the financial assistance from his father to the tune of Rs.1,00,000/- and Rs.50,000/- from his father-in-law and Rs.20,000/- by selling gold ornaments, which was mentioned in the property statement of the appellant as on 31.12.1985.
26.But while perusing the property statement for the year 1990, the appellant mentioned that 80 gms of gold ornaments pertained to his wife and child, which was presented at the time of marriage and birth of child, by his father-in-law. In Form No.III, it was mentioned as "Nil" for (1) Cash and Bank balance exceeding three months emoluments; (2) Deposits, Loans advanced and investments under the "statement required assets held by Board Employees as on 31.12.1990". In such circumstances, the earnings of the appellant since 1972 to 1989 amounting to Rs.Rs.3,00,000/-, which was given in his explanation is unacceptable one.
27.While perusing the property statement for the year 1995, the appellant stated that 200 gms of gold ornaments pertained to his wife and son, which was given at the time of marriage, birth of his son, wedding anniversary and birth anniversary, by his father and mother-in-law, during 1986 and 200 gms of gold were inherited by him. But in his explanation under Ex.P26 and in the application under Ex.P12 seeking permission for construction of the building, he stated that to meet out the expenses, he sold 80 gms of gold jewels. So I am of the view, Ex.P26-explanation was not proved. Furthermore, explanation as well as the property statement given by the appellant much prior to the year 1991 has clearly proved that the explanation is false. Furthermore, it is pertinent to note that sanctioning authority as well as investigating agency and the Special Court had accepted the contributions only made by the father of the appellant and father-in-law to the tune of Rs.1,00,000/- and Rs.50,000/- respectively. In such circumstances, I am of the view, explanation given by the appellant/accused for the known source of income was accepted by the investigating agency and sanctioning authority before accorded the sanction. Furthermore, evidence of D.W.1 to D.W.4 are not trust worthy and D.W.1 to D.W.3 had not filed any documents to show that on what avocation, they saved Rs.50,000/- each in the year 1991 and how they saved. Therefore, their evidence are not trust worthy and not reliable. So I am of the view that explanation offered by the appellant for the known source of income only in respect of his father and father-in-law are accepted. Hence the argument advanced by the learned counsel for the appellant that the Special Court has not accepted the explanation, does not merit acceptance.
28.The learned counsel for the appellant would further submit that there is a delay in investigating the matter. P.W.17 commenced the investigation only on 21.07.1998 and completed the same on 24.10.1998. Thereafter, sanction was granted on 17.04.2000. But the above argument does not hold good. As per the decision reported in 2011 AIR SCW 5539 (A.B.Bhaskara Rao v. Inspector of Police, CBI, Visakhapatnam), it is held that there is a long delay in disposal of appeal or any other factor, is no ground when statute prescribes minimum sentence. So long delay will not vitiate the conviction. Hence, the argument advanced by the learned counsel for the appellant in this aspect, does not merit acceptance. Therefore, the Special Court considering the oral and documentary evidence, came to the correct conclusion that the sanction order is valid, Ex.P6 is admissible in evidence and explanation offered by the appellant for the known source of income in respect of father and father-in-law of the appellant, convicted the accused for the offence under Section 13(2) read with 13(1)(c) of the Prevention of Corruption Act.
29.The learned counsel for the appellant would submit that if the Court comes to the conclusion that the accused is guilty of the offence under Section 13(2) read with 13(1)(c) of P.C. Act, since he allowed to retire with full benefits on 31.07.2005 and now he is aged about 64 years old and he has undergone the mental agony for the past 20 years, in the event of sustaining the conviction, the appellant has to undergo the harassment and humiliation at this age. His wife, son and his destitute sister will be put to undue hardship. Hence, on the face of the totality of the circumstances, he prayed for acquittal and leniency in the sentence imposed by the Special Court. But the above argument does not hold good. To substantiate the same, he relied upon the following decisions:
(i) Reported in 1974 (3) SCC 85 (B.G.Goswami v. Delhi Administration) in para-10, it is held as follows:
"10.As already observed, the appellant's conviction under s. 161, I.P.C. was rightly upheld by the High Court and there is no cogent ground made out for our interference with that conviction. The sentence of imprisonment imposed by the High Court for both these offences is one year and this sentence is to run concurrently. The only question which arises is that under s. 5(1)(d), read with s.5(2) of the Prevention of Corruption Act the minimum sentence prescribed is rigorous imprisonment for one year and there must also be imposition of fine. The sentence of imprisonment can be for a lesser period but in that event the Court has to assign special reasons which must be recorded in writing. In considering the special reasons the judicial discretion of the Court is as wide as the demand of the cause of substantial justice. Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act. which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and re-claim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the agony and harassment of these proceedings when he is also going to lose his job and has to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs.200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same."
(ii) 2000 (8) SCC 571 (Madhukar Bhaskarrao Joshi v. State of Maharashtra) in para-18 and 19, it is held as follows:
"18.When corruption was sought to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given the sentence shall not be less than the imprisonment for one year. Such a legislative insistence is reflection of Parliament's resolve to meet corruption cases with a very strong hand and to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants. All public servants were warned through such a legislative measure that corrupt public servants have to face very serious consequences. If on the other hand any public servant is given the impression that if he succeeds in protracting the proceedings that would help him to have the advantage of getting a very light sentence even if the case ends in conviction, we are afraid its fallout would afford incentive to public servants who are susceptible to corruption to indulge in such nefarious practices with immunity. Increasing the fine after reducing the imprisonment to a nominal period can also defeat the purpose as the corrupt public servant could easily raise the fine amount through the same means.
19.In the present case, how could the mere fact that this case was pending for such a long time be considered as a "special reason"? That is a general feature in almost all convictions under the PC Act and it is not a speciality of this particular case. It is the defect of the system that longevity of the cases tried under the PC Act is too lengthy. If that is to be regarded as sufficient for reducing the minimum sentence mandated by Parliament the legislative exercise would stand defeated. "
It would clearly prove, as per the recent judgment reported in 2011 AIR SCW 5539 (A.B.Bhaskara Rao v. Inspector of Police, CBI, Visakhapatnam), a long delay in disposal of appeal or any other factor, is no ground when statute prescribes minimum sentence.
30.It is appropriate to consider Section 13(2) of Prevention of Corruption Act, which is as follows:
"Any public servant, who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. But the learned Special Judge considering the same and imposed only minimum punishment of one year rigorous imprisonment and imposed a fine of Rs.1,000/- in default in payment to undergo three months' rigorous imprisonment."
Considering the above citations, Section 13(2) of Prevention of Corruption Act and as per the decision reported in 2011 AIR SCW 5539 (cited supra), I am of the view, the special provision has prescribed minimum sentence. So there is no merit in the arguments advanced by the learned counsel for the appellant for reducing the sentence, so I am of the view, the Special Court considered all the aspects in a proper perspective and imposed only minimum sentence. Hence, I do not find any reasons warranting interference with the findings of the Special Court and therefore, the appeal deserves to be dismissed.
31.In fine, The Criminal Appeal is dismissed.
The order of conviction and sentence passed by the learned Chief Judicial Magistrate-cum-Special Court, Erode, in C.C.No.22 of 2000, dated 12.08.2005, is hereby confirmed.
The bail bond executed by the appellant/accused, if any, shall stand cancelled.
The Special Court is directed to take steps to secure the custody of the appellant/accused to undergo the remaining period of sentence.
25.01.2012 Index:Yes Internet:yes kj R.MALA,J.
kj To
1. Chief Judicial Magistrate-cum-Special Court, Erode.
2.Deputy Superintendent of Police Vigilance and anti-Corruption Erode-3.
3.The Public Prosecutor High Court, Madras.
4.The Record Keeper Criminal Section, High Court Madras.
Pre-delivery Judgment made in Crl. A. No.696 of 2005 25.01.2012