Bangalore District Court
Karnataka Lokayuktha P S vs Ajjappa G T on 24 January, 2024
1 Spl.C.C. No.244/2010
KABC010216512010
IN THE COURT OF LXXVIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND THE
SPECIAL JUDGE FOR TRYING OFFENCES
UNDER THE PREVENTION OF CORRUPTION
ACT, AT BENGALURU CITY (CCH79)
DATED THIS THE 24th DAY OF JANUARY 2024
PRESENT:
SRI. S.V.SRIKANTH, B.A., LL.B.,
LXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE,
C/c. LXXVIII ADDL. CITY CIVIL & SESSIONS
JUDGE & SPECIAL JUDGE,
BENGALURU CITY
SPL. C.C.No.244/2010
COMPLAINANT: State by Karnataka
Lokayuktha Police,
City Division,
Bengaluru.
(Rep. by Public Prosecutor)
2 Spl.C.C. No.244/2010
/VS/
ACCUSED: G.T. Ajjappa,
S/o. Late Thimmappa,
Assistant Commissioner
of Police,
Vidhana Soudha Sub Division,
Bengaluru.
(Rep by Sri. C.G. Sundar,
Advocate)
TABULATION OF EVENTS
01. Date of commission of offence : From 1977 till
02.11.2007
02. Date of report of offences to
the Police Station (FIR date) : 02.11.2007
03. Date of arrest of accused :
04. Date of release of accused
from JC :
05. Name of the complainant : Lokayuktha
Police.
06. Nature of offence complained : Under Secs.
13(1)(e) R/w.
Sec.13(2) of
Prevention of
Corruption
Act 1988.
07. Date of submission of
charge sheet : 27.05.2010
3 Spl.C.C. No.244/2010
08. Date of commencement of
recording of evidence : 23.08.2013
09. Date of closing of evidence : 30.06.2023
10. Date of judgment : 24.01.2024
11. Opinion of the Judge in
respect of the offences. : Accused is
acquitted.
*****
JUDGMENT
1. The Police Inspector, Karnataka Lokayukta, City Division, Bengaluru, has filed the Charge Sheet against the accused for the alleged offences punishable under Secs.13(1)
(e) r/w. Sec.13(2) of the Prevention of Corruption Act, 1988.
2. The relevant facts that lead to the Investigating Officer to submit his Charge Sheet are that: 4 Spl.C.C. No.244/2010 The accused was working as the Assistant Commissioner of Police, Vidhana Soudha SubDivision, Bengaluru, and the Investigating Officer had taken the check period commencing from 05.11.1977 to 03.11.2007 by further making alleging that when raid was conducted at the house of the accused on 03.11.2007, accused and his family members were found possessing assets worth Rs.85,40,099.30, their family total expenditure was Rs.55,42,532.20, which totally accounted for Rs.1,40,82,631.50, and the said family's lawful income was Rs.54,82,336.74, but found in possession of properties/ assets disproportionate to his known source of income worth Rs.86,00,294.76, which 5 Spl.C.C. No.244/2010 accounted for 156.87%, thereby has committed above stated offences.
3. After securing the presence of the accused before the Court, through due process of law, he was duly enlarged on regular bail. As per mandatory compliance and vide Sec.207 of the Cr.P.C., prosecution papers were duly supplied to him. When this matter stood posted for hearing arguments before charge, the accused immediately took that opportunity and moved an application seeking for discharge, which ofcourse was opposed and contested by the prosecution, then after hearing the arguments on merits of this case and considering the pros and cons, this court went on to reject that application by coming to the conclusion that 6 Spl.C.C. No.244/2010 there are primafacie materials to frame charges against the accused and then to proceed in accordance with law.
4. In pursuance to the same, this Court having initially framed charges which was read over to the accused. After understanding the same and its implications the accused pleaded not guilty and claimed to be tried. When the matter stood posted for prosecution to adduce its both ocular and documentary evidence, the prosecution in all has examined PW1 to PW20 and exhibits at Ex.P.1 to P.152 came to be marked. The prosecution did not got identified any of the material objects. As there were many instances touching incriminating evidence found against the accused in the prosecution side of evidence, 7 Spl.C.C. No.244/2010 this Court by following the mandatory compliance and requirements recorded the statement as contemplated under Sec.313 of the Cr.P.C. which was read over to the accused in the language known him, who understood the same and denied all those incriminating evidence and preferred to lead both oral and documentary evidence.
5. In response to the opportunity extended by this Court, he got examined one witness as the DW1 and Ex.D.1 to D.6 came to be marked.
6. When the matter reached finality, at that juncture the prosecution having realised the fact that the initial charges framed against the accused are incomplete and there is a 8 Spl.C.C. No.244/2010 typographical error in mentioning the correct check period, filed an application under Sec.216(1) of the Cr.P.C. seeking for alteration of the charge. That application went unopposed as the counsel for the accused submitted no objection and as that application came to be allowed and again this Court recasted the charges by correcting the mistakes on 01.08.2023. So the latest position is that the earlier defective/ incomplete charges framed stands corrected.
7. Heard the arguments.
8. During the course of arguments, the learned defence counsel submitted written arguments coupled with list and citations. I have gone through them in detail. 9 Spl.C.C. No.244/2010
9. The fresh points that crop up for my consideration are as follows:
1) Had the prosecution is able to convince and demonstrate before the Court that the Sanction Order obtained in respect of the accused placed before this Court is valid, sustainable, tenable, and is free from any inherent defects?
2) Whether the prosecution proves beyond all reasonable doubt that when the accused being the public servant, in particular, was discharging his duties as the Assistant Commissioner of Police, Vidhana Soudha Sub Division, Bengaluru, and when Karnataka Lokayuktha Police team conducted raid at his premises on 03.11.2007, found both this accused and his family members were in possession of assets worth Rs.85,40,099.30, their total expenditure was Rs.55,42,532.20, both accounted 10 Spl.C.C. No.244/2010 for total sum of Rs.1,40,82,631.50, lawful income of Rs.54,82,336.74 and the check period was considered as, from 05.11.1977 to 03.11.2007, thereby accused was found in possession of the properties/ assets disproportionate to his known source of income to the tune of Rs.86,00,294.76, which accounted for 156.87%, so involved in committing an act of criminal misconduct and thereby, has committed offences punishable under Secs.13(1)(e) r/w. Sec.13(2) of the Prevention of Corruption Act, 1988?
3). What order?
10. After carefully going through the materials available on record and also considering the facts and circumstances of the case coupled with the ratios and 11 Spl.C.C. No.244/2010 principles laid down by the Hon'ble Apex Court and various Hon'ble High Courts, my findings to the above points are as under:
POINT NO.1 : In the Affirmative, POINT NO.2 : In the Negative, POINT NO.2 : As per my final order for the following:
REASONS POINT NO.1:
11. It is the tirate of law that so long as the law implementing agency/ prosecution does not satisfy that it has fulfilled or met the essentials and requirements of the Sec.19 of the Prevention of Corruption Act, till then the Investigating Officer who would have prepared the Final Report will not get any authority to submit the Charge Sheet before the jurisdictional Court. Sec.19 is a 12 Spl.C.C. No.244/2010 mechanism in the special statute only to see that the public servants are not unnecessarily harassed or put to a type of fear psychosis which in a way definitely will come in the way of discharge of public duties. In the instant case this Sanction Order which is spoken to by the prosecution plays an very important role for the simple reason that this accused was the Assistant Commissioner of Police attached to Vidhana Soudha Sub Division, Bengaluru. Likewise, it is well established law that when the prosecution contends that it has placed a valid Sanction Order, it presupposes the fact that there is a proper application of mind on the part of the appropriate/ Competent Authority.
13 Spl.C.C. No.244/2010
12. The Sanction Order which is contemplated in the statute also conveys in clear terms that when the allegation is leveled against any public servant that he has committed offences punishable under Sec.13(1)(e) r/w. Sec.13(2) of the Prevention of Corruption Act, 1988, firstly the public servant is duty bound to satisfactorily account for his wealth, only when that sacred task takes place successfully then an opinion can be formed by the Investigating Officer as to whether the assets possessed were lawful or not. In the instant case obviously the major chunk of the items and volume of assets only show that according to the prosecution it was to the tune of Rs.85,40,099.30, so also total expenditure to 14 Spl.C.C. No.244/2010 the tune of Rs.55,42,532.20 which was much much higher than the total lawful income. So the allegation is that the accused has amassed wealth of Rs.86,00,294.76 which was disproportionate to his known source of income. Now this alleged amassing of disproportionate assets possessed by the prosecution requires to be substantiated by way of cogent and cohesive evidence by way of regular trial.
13. Coming to the question on hand, it is the claim of the Investigating Officer that, when the request was sent by the ADGP to the Home Department which is the Appropriate Authority to accord sanction, they had also sent certain enclosures which includes 15 Spl.C.C. No.244/2010 Source Report, FIR, documents collected by way Experts Valuation Report, Invisible Expenditure Report etc. So it is the claim of the prosecution that only after the concerned officer of the Appropriate Authority placing the matter before the then Hon'ble Home Minister, has accorded sanction which is tenable in the eye of law. But to controvert the same the accused took up strong exception to the case of the prosecution that since he is a group 'A' Officer, the concerned file seeking Sanction Order was not placed before the cabinet of the Government of Karnataka which is a must under Rule 19 of the Karnataka Business Transaction Rules. It is simply not enough that if the then Hon'ble Home Minister accords sanction, 16 Spl.C.C. No.244/2010 because always the cabinet headed by the Chief Minister and the entire cabinet through the Chief Minister which accords sanction which will culminate in issuing valid Sanction Order. So according to the accused, the so called Sanction Order placed before the Court is not only invalid but it is not issued by the Cabinet, wherein the matter has not come up for discussion before the cabinet and it is only the Home Minister of the then Government which has mechanically acted. Another grievance of the accused was that what was narrated in the requisition letter of the ADGP was verbatim reproduction in the Sanction Order except the last paragraph which only reads that the Home Department has accorded sanction in 17 Spl.C.C. No.244/2010 respect of accused to launch the present prosecution.
14. As this issue is directly touching the sanctity of the Sanction Order issued by the then Home Minister through PW4, it becomes all the more important for this Court to photogenically scan this document only to form an opinion that whether the documents and evidence placed by the prosecution is free from any material defect or not. As a preamble it is apt to mention here that when Ex.P.5 was issued which was subsequent to the earlier sanction order which was withdrawn by the Home Department on account of typographical error found in the earlier sanction order in mentioning the correct value of assets, expenditure and also 18 Spl.C.C. No.244/2010 the income of the accused and his family members. During the course of arguments, the learned defence counsel seriously harped upon the fact that when Ex.P.7 which is the Order Sheet/ Office Note at Sl.No.144 is gone through, it can only manifest before the Court that the Office Note as well as proceedings are purely mechanical in nature. So the PW4 ultimately issued Ex.P.5 by affixing his signature at Ex.P.5(a) purely on account of non application of mind. When Ex.P.5 which is the proceedings of the Home Department, Government of Karnataka, are minutely examined, pages No.1 to 4 are verbatim reproduction of those contents which are found in the requisition letter sent by the ADGP seeking for sanction order to 19 Spl.C.C. No.244/2010 launch prosecution against the accused. The last paragraph which is the operative portion is only to show before the Court that, as they found Source Report, FIR, Valuation Reports enclosed with the requisition letter they came to know that the accused has amassed wealth disproportionate to his known source of income. Hence, the present prosecution came be launched, wherein it is a fit case.
15. Coming to the examination in chief of PW4 by name T.N. Ravi Prakash, who was the Under Secretary to the Government of Karnataka, deposed that on 16.12.2009 they received requisition letter from ADGP, Karnataka Lokayukta, requesting to issue sanction order. That request letter had four files and the Final Report. This witness 20 Spl.C.C. No.244/2010 makes it very clear that the Home Department took assistance of the Legal Advisors who were attached to their department and they acted upon the legal opinion furnished by the Legal Advisors. After the concerned file passing on every hierarchy of officials, was placed before the Home Minister, who was also incharge of Ministry of Muzurai and charitable endowment also. Only after the Home Minister extending his consent, the file was transferred back to PW4, who issued Ex.P.5 by affixing his signature as per Ex.P.5(a). This witness has not forgotten to depose that, if at all Ex.P.5 has taken place i.e., by following Rule 19 of the Karnataka Transaction of Business Rules and nothing 21 Spl.C.C. No.244/2010 else. When we gone through the cross examination of this witness for the purpose of appreciation of evidence under Sec.3 of the Indian Evidence Act, one notable aspect which is evident is that the entire cross examination is in the form of question and answers format.
16. The defence counsel was successful in eliciting the admission from the mouth of this witness in respect of PW4 withdrawing earlier sanction order to substitute the same with Ex.P.5. According to this witness the second order was issued by the Additional Chief Secretary, Home Department, and there is also admission that along with requisition letter, ADGP had also sent a blank draft of the sanction order. This 22 Spl.C.C. No.244/2010 answer was made as a big hue and cry by the accused to contend before the Court that it is more than enough to come to the conclusion that Ex.P.5 is an outcome of non application of mind and nothing else. There are some hypothetical questions posed to this witness. According to the defence counsel his suggestion to this witness was that, had the Home Department were to consider the schedules which also included APRs of the accused with documents, then both the Karnataka Lokayukta and the Home Department might not have come to know that accused and his family members were in excess of Rs.62,76,882/ and if this amount were to be considered while calculating, there would not have been any alleged 23 Spl.C.C. No.244/2010 disproportionate of assets of the accused. According to me, this suggestion to this witness may not play a major role, because some of the aspects of assets, expenditure and income may become a subject matter of trial. It cannot be said that all the explanation offered coupled with documents enclosed to the schedules of the accused are conclusive proof by themselves. There are many monetary transaction especially in the nature of money lending, obtaining hand loan, on demand promissory note which calls for substantiation by way of evidence to instill confidence in the mind of the Court that money transaction has taken place.
17. Moreover, another important question that may linger upon is whether public 24 Spl.C.C. No.244/2010 servant in that capacity can enter into such monetary transaction without divulging those information either in the APRs or intimating the same to his Appointing Authority to obtain permission. For these reasons, I stated that this suggestion is purely hypothetical in nature. Likewise some of the questions that have been posed to this Under Secretary to Government, which this Court feels that it is highly irrelevant. In the nutshell the exercise undertaken by the accused to impeach the credit worthiness of the evidence given by this witness is virtually not shaken. The learned defence counsel drawn the attention of this Court to the another important aspect that when the Chief Minister who heads the Cabinet has 25 Spl.C.C. No.244/2010 not looked into the materials placed by the Lokayukta, this Ex.P.5 which is supposed to be consented by the Home Minister makes no meaning. What this Court finds is that since the Home Minister is also a part of the Cabinet that works under collective responsibility, any decision taken by any one of the Cabinet Minister cannot be branded as same as not within the knowledge of the Chief Minister. This can be vice versa also. The purpose as I have said earlier demanding for sanction order is to prevent unnecessary harassment and on slought on the public functionary and only to see that his official/public work is not unnecessarily jeopardized. In this regard, the learned defence counsel relied upon decisions to give 26 Spl.C.C. No.244/2010 strength to his arguments that Ex.P.5 is unsustainable in the eye of law. They are 1993 Crl. L. J. 2051 in N.P. Lotlikar vs. CBI and another, wherein the Hon'ble High Court held that, there must be an opportunity given to the accused and he must be heard. Even in respect of issuing sanction order the interest of public servant must be kept in mind. One more unreported Judgment in WP No.736/2018 (GMRES) in Sri. Lakshman Rao Peshve vs. Karnataka Lokayukta, wherein the Hon'ble High Court has extracted Schedule I of Rules, 1977 which says that all proposals relating to dismissal, removal or compulsory retirement of GroupA officers of the State shall be placed before the Cabinet. In fact this ratio 27 Spl.C.C. No.244/2010 and principles enunciated in this case applies to the prosecution stand and contention, because Home Minister is also part of the Government Cabinet. Lastly another decision in Crl.P. No.4930/2018 in Sri. D. Krishnappa vs. Karnataka Lokayukta, wherein the Hon'ble High Court has held that, once the order of sanction was withdrawn, it was incumbent upon the Authorities to have placed the file for a fresh sanction before the Competent Authority. According to me this decision is not helpful to the accused, because it is an admitted fact that, earlier sanction order was withdrawn only on account of typographical error found in that document in mentioning the correct check period and value of the total 28 Spl.C.C. No.244/2010 expenditure of the accused. Nowhere the accused disputes that it is not a typographical error. So under such circumstances a bald allegation that there was no any proper application of mind on the part of Home Department or PW4 to issue Ex.P.5 falls to the ground like heap of cards.
18. It is a well settled phenomenon that in order to make this sanction order valid there are certain golden principles or parameters which the appropriate Competent Authority of the public servant will have to be adopted. The first and foremost is that the law implementing agency should place all the relevant papers and files before the said sanctioning authority and those documents by themselves must be in a position to 29 Spl.C.C. No.244/2010 primafacie convey that what is the alleged offence which is cognizable in nature is said to have been committed by that public servant.
19. Coming to the sanction order in respect of the Prevention of Corruption Act, either amended or unamended, the first and foremost requirements is that there must be proper application of mind. In this context I would like to rely upon the following decisions:
a) 2011 Crl.L.J. 2860 in O.T.Bhutia Vs. State of Sikkim, wherein the Hon'ble High Court even though has dwelt upon Sec.13(1)
(e) r/w. Sec.13(2) of the Prevention of Corruption Act, 1988, but in this Judgment 30 Spl.C.C. No.244/2010 there are certain discussions which clearly signal the fact that there must be a proper application of mind.
b). AIR 1977 SC 796 in Krishnanand Agnihotri vs. State of Madhya Pradesh, wherein, this is a land mark Judgment apart from being dealt on Sec.13 of the Prevention of Corruption Act, there is also discussion in respect of sanction/ Sec.19 of the Prevention of Corruption Act.
c) 2016 Crl. L.J. 2297 in Balabadra Parashar vs. State of Madhya Pradesh, wherein the Hon'ble High Court has held that, "when the order granting sanction need not be speaking one". The ratio laid down in this case aptly applicable to the case on 31 Spl.C.C. No.244/2010 hand, because even if this Court were to accept the arguments addressed by the defence counsel with respect to Ex.P.5, except for the operative portion, rest all the contents are verbatim reproduction of the requisition letter sent by the ADGP, even in such extreme circumstances that sanction order becomes valid.
d) 2016 Crl. L.J. 2589 in V.Sejappa vs. State by Lokayukta Police, Chitradurga, wherein the Hon'ble High Court has held that, "the order issued by the Competent Authority will become valid once that documents demonstrate that it has under
gone different checks and balances of hierarchy of officers coupled with demonstrating application of mind.32 Spl.C.C. No.244/2010
e) AIR (SCW) 2039 in Asian Resurfacing of Road Agency Pvt Ltd., and another vs. CBI, wherein the Hon'ble High Court has held that, "Sanction order must show application of mind coupled with accountability". These decisions and the principles involved therein definitely can be found in Ex.P.5, so also Ex.P.7 which is the Note Sheet that indeed the Home Department has taken this errand to issue sanction order after carefully going through the documents submitted by the Lokayukta Police.
20. When the ratios in the above said decisions are gone through, there is nothing on record connecting this case which shows before the Court that the Sanctioning 33 Spl.C.C. No.244/2010 Authority has over looked certain procedures only to see that accused is implicated in this case. Moreover, this Court intends to draw adverse inference against the accused in respect of this aspect, because all along accused did not raise this issue at the initial stage. Of course, it is a settled law that issue questioning the validity of the sanction order can be raised at any stage of the proceedings. So the main contention that Cabinet has not issued Ex.P.5, Hon'ble Chief Minister who heads the Cabinet should have accorded the sanction. Lastly the Home Minister had no exclusive power to accord sanction makes no meaning in the present context. Moreover, Ex.P.5 contents starting from page No.1 to 4, if any one were to go through, definitely gives 34 Spl.C.C. No.244/2010 a birds eye view of the gravity of the offences and the way in which the public servant has acquired the wealth. Under these circumstances, this Court is not convinced in respect of the contention raised by the accused that Ex.P.5 is unsustainable in the eye of law. According to me atleast to submit the charge sheet, the Source Report and the Final Report and other corollary documents, this Court is convinced that there were primafacie materials to issue sanction order for the purpose of submitting charge sheet. In the end it can be only summed that the prosecution has placed a valid sanction order in respect of the accused. Hence, I have answered point No.1 in the affirmative. 35 Spl.C.C. No.244/2010 POINT No.2:
21. The Investigating Officer who filed the Charge Sheet has made allegations that accused and his family members on investigation basing from the Source Report found to have acquired the assets worth Rs.85,40,099.30, total expenditure worth Rs.55,42,532.20, lawful income in a sum of Rs.54,82,336.74, but the illgotten wealth found which the accused failed to satisfactorily account for was worth Rs.86,00,294.76, which accounted for 156.87%. It is a known phenomenon that as per Sec.13(1)(c) to (e) of the Prevention of Corruption Act, it is for the accused to first satisfactorily account for the acquisition of wealth, only when the accused fails to satisfy 36 Spl.C.C. No.244/2010 with regard to the same then only Final Report will be submitted, then the Superintendent of Police will seek for Sanction Order and once that is obtained, Charge Sheet will be submitted before the Court.
22. In the instant case there is one more rider that will also have to be satisfied by the Investigating Officer in respect of considering the contents of the Schedules submitted by the accused to them during the course of their investigation. Whenever raid and search of a public servant premises takes place and when the Investigating Officer collects the documents and prepares the Final Report on the basis of the collected documents, then comes to conclusion that accused is in 37 Spl.C.C. No.244/2010 possession of disproportionate assets to his known source of income, the schedules submitted by the accused at the time of investigation to the prosecution then it will have to convince as to what contents they have accepted and what explanation they have rejected which was submitted by the accused in a raid that is basically on three aspects i.e., value of assets during the check period, then comes expenditure and finally the income. For the purpose of ascertaining as to what is the percentage of disproportionate assets, the accepted formulae is that assets and expenditure will be added, then lawful income is deducted from this total amount. The resultant factor will be the disproportionate asset or the 38 Spl.C.C. No.244/2010 worth of it. In the instant case according to the Investigating Officer the income of the accused and his family were far more than the total value of income during the check period. So on the premises that it is alleged by the prosecution that the accused has amassed wealth by also actively involving in criminal misconduct hence the present charge sheet has been filed.
23. In order to controvert this allegations which has got a far reaching ramification it is opposed and contended by the accused that intentionally Investigating Officer has adopted incorrect stand, wherein the value of movable and immovables have been inflated, expenditure of some of the members who are not part of their family have also been 39 Spl.C.C. No.244/2010 considered and when it comes to the question of income entire salary for the check period, arrears of DA of the accused and that of his wife have not been considered, improper income has been taken into account, likewise rental incomes have not been considered. So when these items under the income are left out, quite naturally Investigating Officer was able to file the charge sheet by considering for the entire check period wherein the lawful income was much much lower than the total worth of assets and expenditure. According to the accused this imbalance is an intentional one and the Investigating Officer who have undertaken investigation seem to have approached this case with a predetermined 40 Spl.C.C. No.244/2010 mind only to implicate the accused in the present case.
24. Let that as it may, first and foremost aspect is that the prosecution whether it is the Police Inspector, Dy.S.P. or the Superintendent of Police which the statute contemplates under Sec.17 have filed the Source Report or the Final Report will have to show that from the day one when they filed the Source Report they were empowered and authorised by the Superintendent of Police to act in this behalf. The second aspect of the matter is the approach adopted by them to conduct a fair investigation and all of which should be acceptable in the eye of law and lastly the main aspect that what sustains for consideration is according to 41 Spl.C.C. No.244/2010 Lokayukta Police who are family members of the accused and what are the guidelines they have followed in considering the assets, expenditure and income of them. This Court is of the firm opinion that when the Investigating Officer himself does not have a clear picture as to who can constitute a family or becomes a family member in order to assess the percentage of disproportionate assets, then there are chances that entire investigation may go wrong. He must also give clarity as to whether the assets, expenditure and income of a married daughter can also be considered, if it is yes, then under which of the heads. Likewise, suppose parents are gainfully employed and that they are not depending upon their son 42 Spl.C.C. No.244/2010 who is a public servant, can they still constitute a family member. Likewise, in case of a gainful employee son even though they are living under one roof, dining together, whether he becomes the part of the family. If children in case of idiots or lunatic who are not gainfully employed, completely under the care and custody of the public servant, what has to be done in case of acquisition of properties and if wife is an independent Income Tax Assessee claims to be having an independent source of income from her own avocation, what should be the approach of the Investigating Officer.
25. According to me these influencing factors will definitely have a greater impact on the merits and demerits of the case. 43 Spl.C.C. No.244/2010 Generally in the case of a present nature very often the Investigating Officer uses the word benami transaction. Now, what transaction can become benami and what are the saving clauses and these aspects requires to be proved in a regular trial. However, acquisition of a property in the name of wife and children can it be branded as a benami transaction. Likewise question in respect of acquisition of property of a Joint Hindu Family or by a Joint Family member, whether it is covered under the Benami Transaction Act or not needs to be convinced. So by keeping these aspects, this Court has to analyse and then appreciate as to whether the accused with an intention of amassing wealth to his known source of income 44 Spl.C.C. No.244/2010 committed an offence which is an economic offence and as a public servant has set an negative example in the society.
26. In this regard prosecution in all has examined 16 witnesses.
27. The PW1 by name Irshad Ahmed Khan who was the Police Inspector at the relevant point of time has deposed that on 29.10.2007, he submitted a report to his Superintendent of Police which contained the source of the accused acquiring the assets and in that report he had mentioned about the property of accused at Chandra Layout, Bengaluru, was worth Rs.40,00,000/, one more house at Chitradurga was worth Rs.60,00,000/, two sites at Bangalore City 45 Spl.C.C. No.244/2010 worth Rs.40,00,000/, 8 acres of plantation land at Chitradurga worth Rs.35,00,000/, and as per the Source Report at Ex.P.1 which got marked through this witness, who also identified his signature on Ex.P.1(a), the alleged disproportionate asset was 370%. According to this witness his Report also included some of the information in respect of the hidden wealth of accused and his family members.
28. Coming to the evidence of PW2 by name Usha who was the Stenographer attached to the KGID office and she deposed that on 02.11.2007, Lokayukta Police had gone to their office, met her superiors, sought assistance of two of the officials to assist them in their investigation. Along with this 46 Spl.C.C. No.244/2010 lady CW2 was also sent to the Lokayukta Office. This lady spoken about the fact that initially they went and met the Police Inspector by name Prasanna V. Raju, who after passing on the instructions asked them to meet him on the next day at around 6.00 a.m. As this witness was a part of the raid team, they went to the house of the accused situated at Chandra Layout, then they rang the door bell and accused opened the door. After showing the search warrant and ID cards, search operation took place including seizing of items and collecting signatures on the documents. This lady has given the evidence that they found hard cash of Rs.25,000/, they also came across gold and silver ornaments wherein appraiser was 47 Spl.C.C. No.244/2010 summoned to check them, and out of the hard cash of Rs.25,000/, Rs.4,000/ was given to be accused and as per Ex.P.2 spot cum raid panchanama was drawn. This lady has identified her signature on the documents. Subsequently they went to the Cubbon Park Police Station as at that time this accused was an Assistant Commissioner of Police attached to Cubbon Park Police Station. They also searched his chambers and found several documents which were seized under separate Mahazar at Ex.P.3. This lady has identified her signature on that document at Ex.P.3(a).
29. Coming to the evidence of PW3 by name Nagaraj, who was the Assistant Director in 48 Spl.C.C. No.244/2010 the KGID Department, he was also acted as a copancha along with PW2 and also spoken about he being deputed to assist the Lokayukta Police in the matter of this accused's search and raid of his premises and he was also a part of the raid team. According to this witness when he met Prasanna V. Raju, he told them to assist for the purpose for which they were deputed and also they visited the house of the accused at Chandra Layout. According to this witness a separate inventory was prepared in respect of gold and silver articles found in the house of the accused. 520 grams of gold and 8,915 grams of silver were found in the living room of the accused, hard cash of Rs.25,000/ were found out of which Rs.4,000/ was 49 Spl.C.C. No.244/2010 returned to the accused, rest were seized under separate Mahazar drawn at Ex.P.2. This witness also identified his signature on the documents as Ex.P.2(b). According to this witness they were taken to the Cubbon Park Police Station and searched the chamber of the accused who was the Assistant Commissioner of Police, and came across some incriminating documents which were assessed under Mahazar at Ex.P.3. According to this witness on 04.11.2007, it happened to be a general holiday, so they were directed to visit Lokayukta Office on 05.11.2007 at about 8.00 a.m. from there they were taken to State Bank of Mysore, West of Chord Road Branch, Rajajinagar, and in that branch even the wife of the 50 Spl.C.C. No.244/2010 accused was also present. Then with the consent of the Bank Manager, Bank locker was opened and they found gold jewels totally weighing 97.5 grams and in this regard a separate Mahazar at Ex.P.4 came to be drawn and this official has identified his signature on that document at Ex.P.4(a).
30. Coming to the evidence of PW5 by name B. Prasanna Kumar, who was the Assistant Engineer, Technical Wing, Karnataka Lokayukta, spoke to the fact that the ADGP, Karnataka Lokayukta writes a letter to their Chief Engineer to furnish the Report in respect of the valuation of two buildings, one situated at Chandra Layout, Bengaluru, and another one at Kelakote, Chitradurga. This witness claims to have conducted Spot 51 Spl.C.C. No.244/2010 Inspection of the Chandra Layout building at Bengaluru estimating its value on 25.10.2008. The said building was shown to him by Police Inspector - Prasanna V. Raju and he was also assisted by two Police Constables. The said Report is marked through this witness at Ex.P.6 and has also identified his signature at Ex.P.6(a). The further examination in chief of this witness was to speak in respect of the total valuation of the building which was estimated at Rs.21,40,000/ and according to him he has adopted the same yardstick for both the properties one at Bengaluru and another at Chitradurga and he has valued the Chitradurga property in a sum of Rs.12,85,000/.
52 Spl.C.C. No.244/2010
31. Coming to the evidence of PW6 by name Vishwanath, who was the Junior Engineer, PWD at Hollalkere, Chitradurga District. It is his evidence that he had received the letter from the Karnataka Lokayukta to inspect and prepare valuation of the two properties, one at Sy. No.42 of Vishwanathana Halli and another one store room & two borewells at Sy.No.92/3 at Gowdihalli Village of Holalkere Taluk. According to him on 17.07.2009 Karnataka Lokayukta Police from Bengaluru took him to those properties and he was issued with the Authorisation Letter by his Superior Officer. The first property was valued at Rs.5,22,978/ and the second property was at Rs.2,14,135/. According to him he has given his reports as per Ex.P.9. 53 Spl.C.C. No.244/2010
32. Coming to the evidence of PW7 by name Sridhara B.S., who was the Assistant Engineer, PWD Office, Holalkere. According to him on 17.07.2009 he was directed by the Assistant Executive Engineer to assess the value of the residential building owned by the accused at Holalkere. According to him on the same day at afternoon he inspected the said building. Two Police Staff by name Mohan Raj and one of the accused relative were present and shown him the property. The plinth area of that building was 105.95 square meters. The said construction is made out of bricks and cement with RCC roofing. The year of construction was 1989 1990 and according to this witness he has prepared the Report and also meticulously 54 Spl.C.C. No.244/2010 assessed in respect of cost of construction of that building. He has valued that building/ property in a total sum of Rs.5,95,000/. Through this witness another Report at Ex.P.10 came to be marked which also consists of his signature at Ex.P.10(a).
33. Coming to the evidence of PW8 by name G. Mudalaiah, who was the Dy.S.P. at the Frazer Town SubDivision, Bengaluru, at the relevant point of time. According to him accused was his tenant and he claims to have known the family members of the accused. According to him, he had a Kinetic Honda two wheeler, that was used by his son, and when his son went for higher studies to Gujarat. During that period in the absence of this witness son, the said two 55 Spl.C.C. No.244/2010 wheeler was used by the children of the accused. It is also the evidence of this witness that he had helped the father of the accused in acquiring the site and stood as a guarantor to the loan raised by the accused.
34. Coming to the evidence of PW11 by name Basavaraj Bheemappa Kotumachagi, who was the Senior Motor Vehicle Inspector, Chitradurga, deposed to the fact that during the year 2009, their office had received a requisition from the Karnataka Lokayukta seeking the Report in respect of fuel and maintenance expenses and to assist in respect of valuation of the tractor and trailor bearing No.KA16T7957 and 7958. He received a requisition from the RTO, Chitradurga who directed him to prepare the 56 Spl.C.C. No.244/2010 Valuation Report. According to him he considered the meter reading provided by the Lokayuktha Police and estimated the approximate fuel expenses as Rs.1,08,780/, and maintenance expenses of Rs.3,000/ and value of the tractor and trailor at Rs.5,85,000/, and submitted his Report with a covering letter which are together marked as Ex.P.53.
35. Coming to the evidence of PW12 by name Dr. Gangadhar, who was the Secretary at Chandra Social and Cultural Recreation Centre (R), deposed to the fact that accused was a member of their Recreation club and had paid membership fee of Rs.10,000/. In this regard they had received a letter from the Lokayukta Police in the year 2008 and 57 Spl.C.C. No.244/2010 sought information in respect of membership details of the accused with their Recreation Club and vide Ex.P.39 that was submitted to the Lokayuktha Police.
36. Coming to the evidence of PW13 by name Basavaraju, who was the Secretary at the Chandra Layout Residence Association. According to him when he was the Secretary, accused was the member of their Association. He had obtained life membership from their Association on 11.03.2006. It is also his evidence that accused had paid Rs.10,350/ for obtaining life membership. According to him in the year 2009 the Lokayukta Police had sent a letter seeking for information about the membership details and the expenses 58 Spl.C.C. No.244/2010 incurred by the accused for obtaining life membership. It is his evidence that through Ex.P.42 he has furnished the sought information to the said police and has identified his signature on that document at Ex.P.42(a).
37. Coming to the evidence of PW14 by name N.M. Nagaraju, who was the Secretary of Lions Club of Bengaluru situated at the Chandra Layout. It is also his evidence that accused had obtained the membership of their Association in the month of December 2005 and had paid membership fee of Rs.6,500/. On 16.06.2006 he had also paid an additional charges of Rs.6,500/ towards the said membership. As the Lokayukta Police had sent a letter seeking for the 59 Spl.C.C. No.244/2010 membership details of the accused including the expenses incurred by him vide Ex.P.41. He has replied the same and identified his signature on the documents at Ex.P.41(a).
38. Coming to the evidence of PW15 by name H. Hanumanthappa, who was the Secretary of Chandra Gymkana Institute (R). Accused had obtained the membership of their Association by paying the fee of Rs.6,000/. Till November 2007 he had paid an amount of Rs.175/, Rs.1,162/ and Rs.480/. Apart from this amount he had also paid Recreation Tax of Rs.1,200/, Rs.672/, Rs.600/ and also paid Rs.384/ on 09.01.2005. As the Lokayukta Police has sought information in respect of these details, he had furnished the details vide 60 Spl.C.C. No.244/2010 Ex.P.43, and identified his signature on the documents at Ex.P.43(a).
39. Coming to the evidence of PW16 by name Y. Sridhar, who was the Assistant Director of Agriculture at Holalkere Taluk, Chitradurga District. The Lokayukta Police had sent the letter seeking to furnish estimate of agriculture income in respect of agriculture land bearing Sy.No.71/5, 71/7 of Gangasamudra Village, and Sy.No.92/03 of Gowdihalli Village and Sy.No.42 of Vishwanathahalli Village in Holalkere Taluk for the check period from 1977 to 2007. According to this witness on the basis of the crop mentioned in the RTC for these years and also by considering the APMC Market rate in respect of these crops, he has 61 Spl.C.C. No.244/2010 assessed the approximate agriculture income of those properties. According to this witness, he has also considered the yield on the basis of the Crop Cutting Estimate and package of practice published by the Agriculture University. According to him he has prepared the list with regard to Agriculture income from a particular crop in the particular Sy.No. Land for the check period and submitted his Report with the covering letter. Through this witness Ex.P.121 came to be marked. According to this witness he has shown the agriculture income at Rs.1,38,118/ in respect of Sy.No.71/5. Further, he has shown an amount of Rs.38,219/ in respect of Sy.No.71/7, another sum of Rs.1,20,435/ in respect of 62 Spl.C.C. No.244/2010 Sy.No.92/03 and lastly an amount of Rs.1,22,065/ in respect of Sy.No.42. This witness also identified his signature on Ex.P.121 at Ex.P.121(a).
40. Coming to the evidence of PW17 by name Devaraju K.R., who was the Senior Assistant Director of Horticulture at Holalkere Taluk of Chitradurga District. According to him he received a requisition from the Karnataka Lokayukta seeking for estimation of Horticulture Income from the Horticultural crops grown in Sy.No.42 of Vishwanathahalli, Sy.No.92/3 of Gowdihalli and Sy.No.71/5 and 71/7 of Gangasamudra Village in Holalkere Taluk for the check period. In turn he directed the Assistant Horticulture Officer Smt. Shobha to inspect 63 Spl.C.C. No.244/2010 these properties and to calculate the Horticultural income and to submit her Report. It is his evidence that Smt. Shobha visited the property, seeing the Horticultural crops like Coconut, Aracanut, Chilli, Onion, Coriander has prepared the Report regarding Horticulture Income from these properties and also prepared a Report. He has enclosed the same with the covering letter which are together marked as Ex.P.122. This witness also identified his signature on that documents at Ex.P.122(a). As per that Report, the Horticulture net income is assessed at Rs.9,16,103/ for the check period.
41. Coming to the evidence of PW18 by name Devadas Kamath, who was working at 64 Spl.C.C. No.244/2010 Abharana Jewellers. In the year 2009 Police had written a letter seeking for information in respect of gold ornaments purchased by accused and his family members. In that connection according to this witness he visited the Lokayukta office on 30.09.2009 with relevant documents. According to this witness he had produced four tax invoices with his covering letter which are together marked as Ex.P.104. As per those documents, accused and his family members had purchased golden ornaments worth Rs.20,782/, Rs.525/ and Rs.76,933.40/, in total Rs.98,240.40/. This witness has identified his signature on Ex.P.104 at Ex.P.104(a).
65 Spl.C.C. No.244/2010
42. Coming to the evidence of PW19 by name U.D. Krishnakumar, who was the Police Inspector attached to Karnataka Lokayukta, City Division, Bengaluru. On 20.01.2010 his Superintendent of Police, directed him to undertake further investigation in this matter and in this regard Ex.P.129 - Authorisation Letter came to be issued. On 21.01.2010 he recorded the statement of K.G. Nagaraj S/o. Ganganna, Usha, Vasanthkumar. Likewise on 23.01.2010 he recorded the statement of one Vaishali, L. Ramakrishna, Sanganabasappa, B.G. Kamala. On 27.01.2010 he recorded the statement of Dhananjay, and on 29.01.2010 he recorded the statement of Managing Director, The Merchant Cooperative Bank 66 Spl.C.C. No.244/2010 Limited, Chitradurga. On 27.01.2010 he recorded the statement of Chief Manager, Corporation Bank, Nrupathunga Road, Bengaluru. On 28.01.2010 he recorded the statement of Senior Manager - G. Vasanthkumar of Canara Bank, Chamarajpet and on the same day recorded the Anand Mirji, Bank Head, ING Vysya and Shivaputrappa Guddakar, Manager, SBI, Holalkere.
43. This witness further deposed as to how he has undertaken further investigation and on 29.01.2010 he recorded the statement of Senior Manager of Canara Bank, BSK 3 rd Stage, Bengaluru. On 08.02.2010 he recorded the statement of Manager, Vijaya Bank, V.V. Puram, Vanivilas Road, 67 Spl.C.C. No.244/2010 Bengaluru. On 01.02.2010 he also recorded the statement of the Secretary, Veda Coconut Growers Marketing And Processing Corporation Pvt, Hosadurga, and the statement of Subramanya, Admin Officer, Balaji Automotives, Chitradurga.
44. On 02.02.2010 he recorded the statement of Siddagangaiah, Assistant Executive Engineer, BWSSB, Bengaluru. On 04.02.2010 he recorded the statement of one Machagi who was the Regional Transport Officer, Chitradurga. Likewise, he also recorded the statement of Assistant Executive Engineer, BESCOM of Vijayanagar Subdivision, Bengaluru, and Gangadhar, Secretary of Chandra Social Recreation, Chandra Layout. On 03.02.2010 he recorded 68 Spl.C.C. No.244/2010 the statement of Veeranna, Secretary of Chitradurga City Institute, and on the same day he recorded the statement of N.M. Nagaraju, Secretary of Lions Club, Nagarabhavi, Bengaluru. On 02.02.2010 he recorded the statement of Basavaraju, Secretary of the Chandra Layout Residential Association.
45. The further examination in chief of this witness is to highlight before the Court that they were able to collect many documents and also recorded the statement of those persons connected there to, who are the authors of those documents, and also the office bearers of said Association and Officers of the Government Department with whom accused and his family members had the 69 Spl.C.C. No.244/2010 transaction. On 03.02.2010 this witness recorded the statement of Branch Manager, LIC, Chitradurga. Likewise he also recorded the statement of another Senior Branch Manager, LIC, Dr. Rajkumar Road, Bengaluru, also recorded the statement of S. Venkatesh, Assistant Revenue Officer, Chandra Layout, TCM Rayan Road, Bengaluru.
46. On 04.02.2010 he recorded the statement of Ramesh, Assistant Executive Engineer, BESCOM, Chandra Layout. On 05.02.2010 this witness claims to have recorded the statement of Sister Margarate, Head Mistress of Marian English Primary and Secondary School, Millers Road, Bengaluru. On 06.02.2010 he recorded the statement of 70 Spl.C.C. No.244/2010 Head Mistress of Marimallappa High School, Seetha Vilas Road, Mysore. On 05.02.2010 he recorded the statement of Sister Christina, Head Mistress of Teresian Convent Girls High School, Sidhartha Layout, Mysore, and on the same day statement of Head Mistress of St. Anns Primary School, Shira Taluk, Tumkur District was recorded. On 06.02.2010 he recorded the statement of J. Antony, Head Mistress of Ideal Java Rotary Primary School, Jansi Rani Lakshmi Bai Road, Mysore.
47. According to this witness on 06.02.2010 he claims to have recorded the statement of Shashikala, Head Mistress of Sri Vasavi Kannada and English High School, Tyagaraja Road, Chitradurga. On 25.01.2010 he also 71 Spl.C.C. No.244/2010 recorded the statement of Sumithra, Principal of KLE, Pre University College, Rajajinagar, Bengaluru, and on the same day recorded the statements of Dr. S.C. Sharma, Vice Chancellor of Tumkur University, and Kashinath, Head Master of New Oxford English School, Vijayanagar, West of Chord Road, Bengaluru, and Hemanthkumari, Head Mistress of Sri Vasavi English Primary School, Chitradurga.
48. According to this witness on 05.02.2010 he also recorded the statement of one Berl Dasini, Head Mistress of Rotary English Medium School, Ranebennur, Haveri District, and on the next day i.e., on 06.02.2010 he recorded the statement of one Sheela Jayakumar, Head Mistress of Sri Vani Girls 72 Spl.C.C. No.244/2010 High School, Bengaluru, and on the same day the statement of one Prabhavathi, Principal of Maharani Ammanni College, Malleshwaram, Bengaluru. On 06.02.2010 recorded the statement of Dr. Subash, Director of Bengaluru Medical College and Research Institute, and on the same day recorded the statement of one Dorothi Managis, Principal of Carmel High School, West of Chord Road, Basaveshwara Nagar, Bengaluru. Also recorded the statement of one Komala, Head Mistress of Arabindo Vidya Mandir, Mahalakshmipuram, Bengaluru. Another statement of one R.K. Prahalad Rao, Principal of MES Kishore Kendra PU college, Malleshwaram, Bengaluru, and also recorded the statement 73 Spl.C.C. No.244/2010 of one Narayana Murthy, Administrative Officer, Yashasvi Tutorial, Mahalakshmipuram, Bengaluru.
49. According to this witness on 08.02.2010, the statement of one Yathish, who was the employee of Sri Krishna Chandra Convention Centre, Jalahalli Cross, Bengaluru. Likewise the statement of Manager of Air Pushpak Tours, Bengaluru, and one Chandrashekar, Chief Manager of Vysya Housing Pvt Ltd., Jayanagar, and Chief Manager, Canara Bank, Subramanya Nagar was also recorded by him. On 09.02.2010 he recorded the statement of Lokesh, Branch Manager, Agriculture and Rural Development Bank of Holalkere and one Raju, Managing Director of Minerva Tours.
74 Spl.C.C. No.244/2010
50. On the next day i.e., 10.02.2010, he recorded the statements of Dr. Narayana, Assistant Director of Agriculture, Chitradurga, another Assistant Director of Agriculture, Holalkere by name Y. Sridhar, and one Dr. Devaraju, Assistant Director of Horticulture, Holalkere was also recorded. On 29.04.2010 the Superintendent of Police, Karnataka Lokayukta had sent the Sanction Order with a memo which was included in the file and vide Ex.P.150 he submitted the Charge Sheet before this Court on 19.05.2010. The signature of this witness on Ex.P.150 is marked at Ex.P.150(a).
51. Coming to the evidence of PW20 by name Jayadeva Prakash, who was the Joint Director of Statistics, Karnataka Lokayukta, 75 Spl.C.C. No.244/2010 Bengaluru and according to him he has furnished the invisible expenditure of the accused and his family basing on 200405 National Sample Survey for Karnataka and Consumer Price Index Reports. It is also his evidence that he has considered the entire details of accused and his family members which also includes his children. According to this witness he has considered the food habits of the entire family and for the entire check period he has submitted his Report. According to PW20 the invisible expenditure also includes the food items, entertainment expenditure, the amount spent towards body fitness, toiletries etc., According to this witness, the total invisible expenditure of the accused and his family for the entire check 76 Spl.C.C. No.244/2010 period is assessed at Rs.17,85,694/. In this regard he has given his detailed Report at Ex.P.103 and identified his signature on that document at Ex.P.103(a).
52. Coming to the evidence of PW9 by name Prasanna V. Raju, who was the initial Investigating Officer, was the Police Inspector when he was with the Karnataka Lokayukta, City Division, Bengaluru. According to him on 02.11.2007, he received the source report coupled with proceedings of the Superintendent of the Police, then verified the same and registered the case in Crime No.41/2007, then submitted the FIR to the jurisdictional Court. Through this witness FIR came to be marked at Ex.P.11. He also spoke about securing the Staff, Panchas and 77 Spl.C.C. No.244/2010 conducting house raid of the accused at Chandra Layout on 03.11.2007 at about 6.00 a.m. According to him he rang the door bell and then accused himself came to open the main door, then the identity was disclosed by showing the Identity Card, Search Warrant, obtaining the signatures on it took place.
According to him soon after they went and entered the house, they started identifying the household articles and they drew detailed Mahazar. Gold ornaments weighing about 520 grams worth
Rs.2,23,116/, silver articles weighing about 8,915 grams worth Rs.53,690/ were seized before the appraiser by name Gangadhar was secured who checked the metal and determined the approximate price. According 78 Spl.C.C. No.244/2010 to them they also found hard cash of Rs.25,950/ out of which Rs.4,000/ was returned to the accused for his day to day expenses. In respect of silver articles found at pooja room, it was not seized. Likewise, about golden chain weighing about 15 grams, and golden ring weighing about 8 grams which was used by the accused found on his body was also not seized. Likewise two golden rings weighing 4 grams each, golden bangles totally weighing 18 grams and mangala sutra worn by the wife of the accused was also not seized. The remaining gold and silver articles and the documents which are mentioned at Sl.No.1 to 107 of the Mahazar at Ex.P.2 came to be seized was handed over to the accused. It is the evidence 79 Spl.C.C. No.244/2010 of this witness that the entire staff with panchas went to the office of the accused i.e., Cubbon Park Police Station and they found 8 documents in the office of the accused and separate panchanama at Ex.P.3 was drawn and entire team returned to their office and then subjected the seized properties to the PF and on 05.11.2007 at about 9.00 a.m. the entire team went to the State Bank of Mysore, West of Chord Road Branch, Bengaluru, wherein both accused and his wife were present. The Bank locker of wife of the accused got opened with the permission and assistance of Bank Branch Manager and they found golden necklace worth 37.150 grams, Ear rings and jumuki, 2 pairs of maati, totally weighing 36.120 grams, one 80 Spl.C.C. No.244/2010 pair of ear rings weighing about 2.910 grams, kabali ring weighing about 11.160 grams, one pair of drops weighing 2.060 grams, one pair of lakshmi ear rings weighing about 4.080 grams, one pair of ear rings weighing about 4.060 grams and in this regard a separate Mahazar was drawn at Ex.P.4. According to this witness he written letter to various departments calling for their better particulars. He was furnished with schedules from 17 to 23, he also issued requisition to PWD Department, Chitradurga to furnish the Valuation Report in respect of the house property which stood in the name of accused wife. He also claims to have sent letter for securing the appraiser statement in respect of store room, pump house of the accused property situated at 81 Spl.C.C. No.244/2010 Vishwanathanahalli and Gowdanahalli of Holalkere Taluk. According to him he also got Valuation Statement in respect of house situated near the Holalkere bus stand. According to this witness, accused had a family consisting of three children and in this regard he also collected details in respect of education expenses of all the children of the accused.
53. It is also found in the further examination in chief of PW9 that on 01.10.2009 he found a bill of Abharana Jewellers and then recorded the statement of one Devadas Kamath. On 03.09.2009 he secured the presence of PW8 G. Mudalaiah and recorded his statement in connection with Kinetic Honda two wheeler which was 82 Spl.C.C. No.244/2010 found in the house of the accused. According to him as he was transferred to Sudan, he handed over the further examination in chief to CW69.
54. According to this witness on 19.09.2009 he received the attested copy of the share certificate, particulars of site, assessment extract, EC, copy of sale deed from the concerned SubRegistrar's office. According to him he also received copies of the sale deed in respect of the site No.14 of Kelakote Extention from the SubRegistrar, Chitradurga. In the lengthy examination in chief this witness spoke about collection of documents which are in the form of assessment extract of the site, Municipal records, Encumbrance Certificate, RTC in 83 Spl.C.C. No.244/2010 respect of sites and agricultural lands. According to him on 31.10.2008 he received the attested copy of possession certificate, sale certificate, endorsement, death certificate, representation, photo attestation, Joint affidavit, indemnity bond from BDA, Bengaluru. Likewise, he also received, EC, sale deed and khata pertaining to property No.889/867 which stood in the name of Earamma. On 02.06.2009 he also received the sale deed in respect of site no.1323 of Nisarga Layout of Harappanahalli, Anekal Taluk, Bengaluru Rural District, from the concerned SubRegistrar's office.
55. On 25.07.2009 he received the documents in the form of valuation report 84 Spl.C.C. No.244/2010 from the Assistant Executive Engineer, PWD, Holalakere. On 29.10.2009 he claims to have recorded the statement of witness by name Rangamma, on 26.08.2009 he received the loan particulars of Gowramma from Onake Obavva Cooperative Bank, Chitradurga, on 12.11.2007 he received the SB A/c. statement related to accused from the Corporation Bank. Likewise on 16.06.2009 he received account particulars of the accused from ING Vysya Bank, account statement of Smt. Gowramma from Oriental Bank of Commerce, and accused bank account from another branch of Canara Bank. According to this witness he also received loan particulars of accused from State Bank of Mysore, Holalkere, bank 85 Spl.C.C. No.244/2010 details of accused from Syndicate Bank and bank details of the accused bank account from Vijaya Bank, Mysuru Road Branch, Chamarajapete, Bengaluru. On 04.10.2008 he received the membership particulars of accused and his wife from Merchants Souhardha Sahakara Bank, Chitradurga. On 08.09.2009 he also received letter from Veda Coconut Growers, Marketing and Processing Cooperative Society, Hosadurga in respect of share particulars of Smt. Eramma.
56. On 13.10.2008 he also received documents from the BWSSB, Bengaluru, in respect of water connection obtained to Chandra Layout house. On 31.10.2008 and 24.01.2008 he received documents containing particulars of the electricity 86 Spl.C.C. No.244/2010 connection from BESCOM office. Likewise on various dates he received the membership particulars of the accused and his family members from the Chandra Social, Cultural and Recreation Center, Chandra Layout, City Institute, Chitradurga, Lions Club, Chandra Layout, Bengaluru, Chandra Layout Residents Association and Chandra Gymkhana Institute. On 22.09.2009 and on 05.09.2009 he collected telephone details from the BSNL, Davanagere office in respect of deposits and billing details. On 05.09.2009 he received the membership details of Smt. Gowramma from Anu Solar Power. On 14.12.2007 he received the policy particulars of daughter of accused by name Sahana from the LIC office, Chitradurga. On the same day 87 Spl.C.C. No.244/2010 he received the LIC policy particulars of A. Janardhan Yadav S/o. Accused from LIC office, Bengaluru. On 12.02.2008 he received khata extract, tax paid particulars and revenue documents from Assistant Revenue Officer, BBMP, Chandra Layout. On 19.09.2009 this witness claims to have received the vehicle particulars of tractor No.KA 16 P 7957 and 7958 from the RTO, Chitradurga. Likewise on 15.12.2008 he received particulars of electricity demand and payment in connection with the house No.14 of Kelakote, Chitradurga from the office of BESCOM. So far as the particulars of education details of Sowmya are also received by this witness. So far as other children by name Sowjanya and Sahana were 88 Spl.C.C. No.244/2010 also received including that of a son Janardhan.
57. According to this witness on 06.08.2009 he has recorded the statement of S.N. Somasundara Dikshith, purohith who performed marriage of Soumya, and on the next day i.e., 07.08.2009 he has examined and recorded the statement of one G. Rajaram, who is the catering contractor. On 24.08.2009 he received the letter containing information from Krishna Chandra Convention Hall. On 24.08.2009 he received documents containing information from the Assistant Director of Animal husbandry in respect of maintaining Mudhol Hound. On 17.10.2008 he also collected the shopping details of daughters of accused from West 89 Spl.C.C. No.244/2010 side store in Forum mall, Koramangala. Likewise, he also collected documents containing particulars of Associate card from NIG Cricket club, Mumbai. On 28.08.2009 he received the DL particulars from RTO, Central office, Bengaluru. On 04.03.2008 and 27.08.2009 he received the payment of advance of the cost of utilization of gas cylinders LPG from Shree Maruthi Gas Agency. Likewise on 31.10.2009 he also collected information in respect of LPG gas from M/s. Bhavani Bharath Gas Distributors. On 26.08.2009 he collected the Cancard details from Canara Bank, and also received the inputs from the Air Pushpak in respect of the travel particulars of Smt. Gowramma. On 17.09.2009 he received 90 Spl.C.C. No.244/2010 particulars in respect of Rs.3,000/ D.D sent to TTD from the Karnataka Bank Ltd. On 22.09.2009 he collected additional information in respect of the DD to TTD, Thirupathi.
58. On 04.06.2009 he collected information by way of letter from the Narayana Hrudayalaya towards payment of Rs.3600/ for heart check up of Smt. Gowramma. On 11.06.2009 he also received information of housing loan from DHFL. Likewise, he also collected particulars of housing loan received from Canara Bank and PLD Bank, Holalkere.
59. Coming to the further investigation undertaken by this witness, according to him on 31.08.2009 he collected Debit card details 91 Spl.C.C. No.244/2010 of the accused from the Corporation Bank. Likewise, traveling details from Minerva Tours and Travels Pvt. Ltd., on 30.09.2009. On 24.10.2009 he received the Report from the Karnataka Lokayukta related to expenditure on food and non food invisible items. On 15.10.2009 he received the particulars and invoice from Abharana jewelers. He claims to have received the statements of accounts from 25.05.2001 to 30.09.2009 from Pathi Gold Jewellers, Bengaluru. On 14.09.2009 he received chit fund particulars from MCI (Bangalore) Chits Limited. This witness while deposing in his examination in chief he hard pressed the fact that he also received the salary particulars of the accused from the Director, Karnataka 92 Spl.C.C. No.244/2010 Police Academy, office of the Superintendent of Police, Tumkur, DCP, TrafficWest, Bengaluru, office of the Police Commissioner, Mysuru, office of the Superintendent of Police, Chitradurga, office of the Police Commissioner, Bengaluru, office of DCP, West, DCP, intelligence, office of BESCOM vigilance, office of DCP, Central Division, to know as to what was the total salary received by the accused from his Department during the check period.
60. According to this witness on 19.09.2009 he collected the copy of the notification dated 07.06.2007 to know that from 28.06.2006 to 04.02.2007 was treated as compulsory waiting period under endorsement. According to him soon after collection of 93 Spl.C.C. No.244/2010 pahani's, RTC from the office of Tahsildhar Chitradurga, the same was resubmitted to the Assistant Director of Agriculture and on 16.07.2009 he collected the statement of income and expenditure in respect of land bearing Sy.No.28/2b. On 28.07.2009 he received the statement of income and expenditure from the Assistant Director, Holalkere. On 27.08.2009 he received the Annual Property Returns of the accused for the year 200405 to 200708 from the office of DG and IGP, Karnataka. Likewise, on 25.08.2008 he received the copy of Income Tax Returns. On 13.11.2008 he has received the filled Schedules No.17 to 23 from the accused. According to him on the same day accused had sought some time to furnish the 94 Spl.C.C. No.244/2010 Schedules No.1 to 16. According to this witness he was entrusted to undertake further investigation of the case from the Superintendent of Police by way of written Authorisation. He received the authorisation dated 02.11.2007 and according to him on the basis of the same, he has undertaken investigation by obtaining search warrant and conducted raid and search of the premises of the accused. As he was deputed to visit Sudan, he has handed over the further investigation of this case to PW10.
61. Coming to the evidence of PW10 by name K.C. Lakshminarayana, then he was the Police Inspector attached to the Karnataka Lokayukta, City Division, Bengaluru. According to this witness on 95 Spl.C.C. No.244/2010 02.11.2009 as per the directions of his Superintendent of Police, Karnataka Lokayukta, he has undertaken the further investigation of the case from PW9. In this regard, through this witness Ex.P.127 came to be marked which is nothing but the Authorisation order. According to him on 21.11.2009, he received the documents pertaining to the property of Smt. Eramma, from the office of Tahsildar, Hollalkere. On 11.12.2009, he completed his investigation, and submitted the Final Report to the Superintendent of Police, Karnataka Lokayukta, Bengaluru. On 20.01.2010, he handed over this case file to CW70 by name U.D. Krishnakumar for further investigation again as per the directions of his 96 Spl.C.C. No.244/2010 Superintendent of Police, Karnataka Lokayukta. Prior to that, according to this witness, he has verified all the investigation material collected by PW9 and submitted the Final Report to the Superintendent of Police. According to him on verification of the materials it revealed that accused is the son of Late Thimmappa and Smt. Eramma. One Smt. A.V.Gowramma is the wife of the accused, and they have three daughters and a son. They are Kum.Sowmya, Kum.Sahana, Kum.Soujanya and Master. Janardhan Yadav. Accused had joined the Department of Police as the Police SubInspector on 05.11.1977 and he has served throughout Karnataka. When raid took place at the accused premises on 03.11.2007 he was 97 Spl.C.C. No.244/2010 working as the A.C.P., Vidhana Soudha, Bengaluru, stationed at Cubbon Park Police Station Bengaluru.
62. This PW10 deposed that the search and seizure of the premises and properties of the accused was reported vide different PFs vide four separate Mahazaars. In turn accused has also submitted Schedules in the form of annexures No.17 to 23, but he has not submitted the annexures No.1 to 16 and 16B. As per annexure No.17, the accused has declared that he has spent a sum of Rs.3,39,898/ towards educational expenses of all his children. As per annexure No.18 there is a declaration to the fact that for the purpose of performing marriage of his first daughter, he has spent a sum of 98 Spl.C.C. No.244/2010 Rs.1,00,000/, for the purpose of performing marriage of his second daughter he has spent Rs.1,69,000/ and he has spent Rs.13,750/ towards the expenses of House Opening Ceremony. According to this witness, accused had declared in annexure No.19 that towards house rent, electricity bill, water consumption charges, LPG refilling charges and deposits, he has spent a total sum of Rs.3,06,982/. As per annexure No.20 there is a declaration vouchsafed by the accused that he has spent a total sum of Rs.49,367/ towards obtaining membership fee to various Societies and Recreation Clubs. As per annexure No.21, there is no declaration found from those documents. Vide annexure No.22 there is a declaration of 99 Spl.C.C. No.244/2010 the accused that he has spent a sum of Rs.57,070/ towards the purchase of clothes, household articles, etc. Annexure No.23 of the accused is with regard to family size and food habits of the family members.
63. According to this witness two Investigating Officers have collected the documents in respect of Assets and Liabilities and they are based upon the APRs of this accused, collected from different sections of Home Department throughout the State. According to this witness, on perusal of these different years Annual Property Returns, accused had declared his agricultural income to the tune of Rs.30,000/ to Rs.35,000/ per year, another declaration in respect of purchase of Enfield 100 Spl.C.C. No.244/2010 Bullet Motor Bike. There was also declaration in respect of fixed deposit to the tune of Rs.7,000/ stood in the name of his two children, and recital in the APRs that his parents were possessing 17 acres of land and they were getting annual income of Rs.30,000/ to Rs.35,000/. In the Assets and Liabilities Statement of the accused for the year 198687 there is a declaration to the effect that mother Eramma had purchased 7 acres of land in survey No.92/3 for a sale consideration of Rs.14,000/ in the year 1982 and she got dug a borewell in the year 1985 by borrowing loan from Canara Bank for this purpose. There is also declaration in the said APR that his father possessed 3 acres of ancestral property and got granted 2 101 Spl.C.C. No.244/2010 acres of land and mother received 3 acres of land from her father. In that APRs there is a reference that in that land they had grown onion and out of that his parents have got annual income of Rs.37,000/ to Rs.38,000/. That APR also states that a house was constructed during 1965 in Gangasamudra village and that is worth Rs.50,000/. A vacant site was purchased in the name of his father Thimmappa in the year 1981 for a total sale consideration of Rs.32,000/, and his mother had deposited Rs.10,000/ in a financial institution out of her agricultural income.
64. This witness deposed caption wise to begin with in respect of the assets of the 102 Spl.C.C. No.244/2010 accused and his family. Accused had purchased site No.10 in survey No.430 and 431 on 11.03.1981 in an open auction for a bid price of Rs.7,000/ in the name of his father Thimmappa. When this process was going on, the learned counsel for the accused raised objection in respect of the documents getting marked through this witness, which in turn was over ruled by the Court. Likewise, according to this witness this accused had purchased land measuring 6 acres 33 guntas in survey no.92/3 of Gowdihalli village of Holalkere Taluk, Chitradurga District on 07.02.1983 from vendors by name T.Sannathimmappa, G.S.Halaswamy, G.S.Nagaraja and G.S.Venugopala for a sale consideration of 103 Spl.C.C. No.244/2010 Rs.14,000/ in the name of his mother Smt. Eramma. According to this witness from the documents collected, he came to know that accused had purchased site No.14 measuring 40x60 feet carved out of survey no.9/1 and 9/3 of Kelakote village of Chitradurga Taluk on 28.06.1985 from a vendor by name Lokeshwar for a sale consideration of Rs.3,000/ in the name of his wife Smt. A.V.Gowramma. There is also purchase undertaken by the accused two sites each measuring 20x60 feet in site no.43 and 44 in Ayyappaswamy Layout, Hosadurga Municipality, Chitradurga District on 12.03.1987 from vendor by name T.D.Lakshman, D.V.Narayanashetty and M.S.Mani for a total sale consideration of 104 Spl.C.C. No.244/2010 Rs.10,000/ in the name of his father Thimmappa. This accused also had purchased land measuring 6 acres 16 guntas in survey no.42 of Vishwanathahalli village, Holalkere Taluk, Chitradurga District on 22.01.1990 from Smt. A.S.Rangamma for a total sale consideration of Rs.40,000/ in the name of his father Thimmappa. Likewise, accused also entered into a sale consideration by purchasing land measuring 3 acres 38 guntas in survey no.28/2B of Kalkunte village, Hireguntanuru Hobli, Chitradurga Taluk on 05.02.1996 from vendor by name Huchappa and K.H.Siddappa for a sale consideration of Rs.58,000/ in the name of his mother Smt. Eramma.
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65. According to this witness, accused purchased property i.e., site measuring 232.75 square meter in site no.178 in Nagarabhavi II Stage, II Block, Bengaluru in an open auction conducted by BDA on 23.03.1999 for a successful bid amount of Rs.9,77,550/ in the name of his father Late. Thimmappa. After the death of his father on 15.07.2003, the mother of accused Smt. Eramma had requested the BDA to transfer the Khata to her name. As her request was allowed the said site has been registered in the name of Eramma. This witness deposed that from the documents collected by him, accused had purchased another site in Holalkere Town Panchayati assessment no.1263/31A, Khata no.889/867 on 106 Spl.C.C. No.244/2010 03.11.2001 from the vendor by name G.V.Nagappa for a sale consideration of Rs.40,000/ in the name of his mother Smt. Eramma. There is one more property purchased by the accused in site no.21 measuring 30x253+51 feet developed by the Bengaluru Development Authority carved out of survey no.348 to 352 of Kempapura Agrahara, Bengaluru on 28.05.2002 for a total sale consideration of Rs.2,26,235/. This accused also purchased site no.1323 measuring 40x70 feet in Harappanahalli village, Jigani Hobli, Anekal Taluk on 02.09.2002 from M/s. Nirman Shelters for a total sale consideration of Rs.1,00,000/ in the name of his father Thimmappa. This accused according to this witness also had 107 Spl.C.C. No.244/2010 purchased land measuring 39 guntas in survey no.73/3P of Gangasamudra village on 21.04.2005 from Smt. Chandramma for a sum of Rs.35,000/ in the name of his mother Smt. Eramma. According to this witness from the further investigation undertaken by him it revealed that accused had spent a sum of Rs.21,40,000/ for purchasing of site no.21 in Chandra Layout, Bengaluru and for constructing the house in the said site. This accused also had spent a sum of Rs.12,85,000/ for purchase of site no.14 in Kelakote village, Chitradurga District in the name of his wife Smt. A.V.Gowramma also had constructed the ground floor in the year 199596. This accused has spent a sum of Rs.5,22,978/ 108 Spl.C.C. No.244/2010 for putting up of farm house, store room, 3 pump houses, 3 borewells, water tank, fencing and for pillars in survey no.42 of Vishwanathahalli village, Holalkere Taluk, Chitradurga District. This witness has learnt that accused has spent a sum of Rs.2,14,135/ for construction of store room, borewells, water tank and cost for fencing and pillars in survey no.92/3 of Gowdihalli village, Holalkere Taluk, Chitradurga District. According to this witness accused has spent a sum of Rs.5,95,000/ for purchasing site no.10 in Municipal Khata No.2552/2538 in Holalkere Town, Chitradurga District in the name of his father Thimmappa and also constructed a house in that site. Accused had purchased land measuring 1 acre 14 109 Spl.C.C. No.244/2010 guntas in survey no.46/3 of Vishwanathahalli village, Holalkere Taluk, Chitradurga District on 24.01.2004 from Smt. Rangamma for a total sale consideration of Rs.90,000/ in the name of his mother Smt. Eramma.
66. According to this witness his further investigation in the matter revealed the fact that a sum of Rs.630/ was found outstanding in SB account no.1474 of Smt. Gowramma - wife of accused in Onake Obavva Mahila Cooperative Bank, Chitradurga. Likewise a sum of Rs.45,376.69 was the amount found in the bank account of Smt. A.V.Gowramma, in State Bank of Mysore, West of Chord Road Branch, Bengaluru. Another sum of Rs.435/ was 110 Spl.C.C. No.244/2010 available in SB account which belongs to the accused with the Merchants Souhardha Co operative Bank, Chitradurga. Likewise, a sum of Rs.7,657/ was found available in the bank account of the accused maintained in Corporation Bank, Nrupatunga Road Branch, Bengaluru. A sum of Rs.6,076.61 was found outstanding in the bank account of accused with ING Vysya Bank, New Taragupete Branch, Bengaluru. A sum of Rs.5,324/ was the balance amount standing to the credit of Smt. A.V.Gowramma in her bank account with Oriental Bank of Commerce, M.G.Road Branch, Bengaluru. Another sum of Rs.7,151/ was found available in SB account of accused with Canara Bank, Sheshadripuram Branch, Bengaluru. 111 Spl.C.C. No.244/2010 Likewise, another sum of Rs.1,188.78 was lying to the credit of Smt. A.V.Gowramma in her bank account with the ING Vysya Bank, Chitradurga. A sum of Rs.8,812.82 was also found available in the SB account of the accused with State Bank of Mysore, Holalkere Taluk, Chitradurga District.
67. Coming to the SB account of the accused with the Syndicate Bank, Basaweshwara Road Branch, Bengaluru an amount of Rs.1,15,994/ was found. A sum of Rs.5,645/ was also found in the SB account of Smt. Sahana, daughter of the accused with Canara Bank, Kamakya Branch, Banashankari III Stage, Bengaluru. Another sum of Rs.392/ was available in SB account of the accused Canara Bank, 112 Spl.C.C. No.244/2010 Subramanyanagara Branch, Bengaluru. A sum of Rs.197.40 was available in the SB account of the accused with Vijaya Bank, Chamarajapete Branch, Bengaluru.
68. Coming to the bank account of the father of the accused with the ING Vysya Bank, Chitradurga, the balance found was Rs.36,626/. A sum of Rs.2,500/ was available as share amount in respect of membership pertaining to Smt. A.V.Gowramma with the Onake Obavva Mahila Cooperative Bank Ltd., Chitradurga. So far as this bank transaction and accounts are concerned these two IOs have collected those documents and basically they were based upon the income proof and 113 Spl.C.C. No.244/2010 information available in the annexures by way of schedules produced by the accused.
69. A sum of Rs.1,500/ was also available as share amount in respect of membership of accused with the Merchants Souhardha Co operative Bank Ltd., Chitradurga. A sum of Rs.1,300/ was the share amount of Smt. A.V.Gowramma with the Merchants Souhardha Cooperative Bank Ltd., Chitradurga. Another sum of Rs.1,000/ was found as the share amount of Smt. Eramma with the Veda Tengu Belegarara Marata Mattu Samskarana Sahakara Sangha, Hosadurga Town, Chitradurga District.
70. This witness's further investigation unearthed the fact that the accused had 114 Spl.C.C. No.244/2010 spent a sum of Rs.4,70,595/ for purchasing a Tractor from the Sri Balaji Automobiles, Chitradurga in the name of his mother Smt. Eramma. This witness has learnt that accused had spent a sum of Rs.1,34,000/ for purchasing Tractor, Trailor and Cultivator from Shiva Naradamuni Agro Trailors, Chitradurga in the name of his mother Smt. Eramma. Likewise, a sum of Rs.25,950/ was found in the master bedroom wardrobe of the accused house situated at Chandra Layout, and it is the evidence of this witness that a sum of Rs.4,000/ was given back to accused for his susicnance and remaining amount was seized in particular mahazaar and subjected to PF. A sum of Rs.2,51,760/ was the estimated value of 520 gram Gold 115 Spl.C.C. No.244/2010 ornaments found at the time of raid. Likewise, a sum of Rs.41,000/ was the estimated value of 97 grams of Gold ornaments found at the bank locker which belongs to Smt. A.V.Gowramma with the State Bank of Mysore, West of Chord Road branch, Bengaluru. Another sum of Rs.56,790/ was the estimated value of 9 kgs 815 grams of Silver ornaments found at the time of raid.
71. A total sum of Rs.10,71,589/ was the estimated value of all the household articles, electronic articles, furnitures, clothes and other articles found in the house of accused at the Chandra Layout, Bengaluru. This accused is reliably learnt to have paid a sum of Rs.7,420/ as deposit with BWSSB for 116 Spl.C.C. No.244/2010 obtaining water connection to the Chandra Layout house. Likewise, this accused had paid a sum of Rs.2,340/ as deposit for obtaining electricity connection to the said house. This accused has spent additionally an amount of Rs.14,345/ as deposit and other expenses for obtaining Electricity connection to his Chandra Layout house. A sum of Rs.10,000/ was spent by this accused for obtaining membership with Chandra Social, Cultural and Recreational Center(R), Bengaluru. This accused is learnt to have spent a sum of Rs.2,000/, Rs.6,500/ , Rs.10,350/, and Rs.6,000/ respectively for obtaining membership with the City Institute of Chitradurga, Lions Club of Chandra Layout, Bengaluru, Chandra 117 Spl.C.C. No.244/2010 Layout Residents' Association, Chandra Layout, Bengaluru, and Chandra Gymkana Institute, Chandra Layout, Bengaluru. This accused has spent a sum of Rs.600/, and Rs.3,250/ which was kept as deposit with BSNL towards obtaining telephone connection. According to Investigating Officer this accused has spent a sum of Rs.24,500/ for the purchase of solar water heater under Anu Sulabha Yojane2 in the name of his wife Smt. A.V.Gowramma. Another sum of Rs.1,400/ was paid as advance for obtaining gas connection. Based upon these materials collected, it is the firm conclusion of this Investigating Officer that accused and his family members had a total assets of Rs.85,40,099.30.
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72. This PW10 has spoken in particular about the expenses of the accused and his family to sum up before the Court and to depose that the total expenditure of them was Rs.55,42,532/. This is quite obvious that the expenditure of the accused and his family members ought to touch that level so as to project that both assets and expenditure of them was on account of amassing of assets disproportionate to the known source of income. In that direction there are materials found in the evidence of this witnesses as follows: According to PW10 accused had paid a sum of Rs.10,000/ towards Moneyplus LIC Policy which stood in the name of his second daughter Sahana. Likewise, another sum of Rs.67,309/ was 119 Spl.C.C. No.244/2010 also spent towards LIC Policy by the accused in respect of his son Master A. Janardhan Yadav. Accused had spent a sum of Rs.19,142/ towards Income Tax. Another sum of Rs.27,940/ was paid by the accused towards tax for his house no.21 of Chandra Layout, Bengaluru. According to this witness in respect of house no.10, carved out of survey no.430 and 431 of Holalkere Town, Chitradurga District, accused had paid the tax of Rs.6,000/. Likewise in respect of house no.21, 2nd Cross, 2nd Main, K.P.A. Block, Chandra Layout, Bengaluru, accused had paid the water charges of Rs.4,220/, another sum of Rs.8,842/ was paid towards water consumption charges in respect of house no.52 of West of Chord Road, 2nd 120 Spl.C.C. No.244/2010 Stage, Mahalakshmipuram, Bengaluru.
73. A sum of Rs.330/ was paid by the accused towards water consumption charges in respect of his rented house when he was working at Tipaturu Rural Police Station of Tumakuru District. According to this witness, accused learnt to have paid Rs.420/ towards water consumption charges in respect of rented house when he was working as the Police Inspector with Tavarekere Police Station, Tumakuru District. Likewise a sum of Rs.1,980/ was the water consumption charges paid by this accused when he had occupied the police quarters near Anand Rao Circle, Bengaluru.
A sum of Rs.750/ was the water consumption charges paid by the accused in 121 Spl.C.C. No.244/2010 respect of rented house situated at Siddhartha Layout of Mysore, when he was working at Mysore City Traffic Police Station. A sum of Rs.1,000/ was the water charges to the rented house at Chitradurga Town when he had served there as Police Circle Inspector. According to this witness accused had also spent a sum of Rs.2,700/ towards the maintenance expenses of Tractor No.KA 16T7957 and 7958 which was purchased earlier in the name of accused mother Smt. Eramma. This accused had also spent a sum of Rs.1,11,780/ towards the fuel and maintenance charges in respect of the said Tractor and Trailor wherein his mother was the RC owner. Another sum of Rs.14,764/ is learnt to have been paid by the accused 122 Spl.C.C. No.244/2010 towards the electricity charges in respect of Chandra Layout house at Bengaluru. Another deposit in a sum of Rs.40,897.12 towards deposit and electricity charges in respect of Chandra Layout house at Bengaluru. Another deposit in a sum of Rs.50,245/ was also paid by the accused in respect of electricity expenses to the house at Kelakote village, Chitradurga District.
74. This witness deposed that from their investigation it came to light that accused had spent a sum of Rs.55,775/ towards electricity expenses in respect of rented house no.52, of West of Chord Road, Mahalakshmipuram, Bengaluru. Accused had also spent a sum of Rs.1,200/ towards electricity expenses in respect of the rented 123 Spl.C.C. No.244/2010 house at Hebburu Police Station limits of Tumakuru District. Another sum of Rs.1,930/ was the electricity expenses, so also Rs.2,520/ which was paid to the electricity department for the rented house at Tipaturu and Tavarekere.
75. The list of the alleged expenses undertaken by the accused for their sustenance of living is a too lengthy one. Accused claims to have spent a sum of Rs.9,900/ as the electricity consumption charges in respect of his quarters at Anand Rao Circle, Bengaluru. So also similar charges of Rs.5,000/, and Rs.7,500/ in respect of two other rental premises one at Siddhartha Layout, Mysore, and one at Chitradurga Town. A sum of Rs.8,404/ was 124 Spl.C.C. No.244/2010 paid by the accused as initial deposit with the Telephone Department in respect of the connection to the property situated at Gangasamudra village, Holalkere, Chitradurga District. This accused claims to have deposited a sum of Rs.91,336/ with the BSNL for obtaining BSNL landline telephone connection. A total sum of Rs.3,574.73 was the telephone charges in respect of mobile no. 9449079427 claims to have been paid by this accused. Likewise a sum of Rs.3,574/ was the mobile service charges to mobile no. 9449820149 paid by the accused.
76. Then the focus of attention in respect of deposition given by this witness seems to have taken a different direction. It is the say 125 Spl.C.C. No.244/2010 of this witness that accused is said to have spent a sum of Rs.87,128.50 towards the educational expenses of his daughter Kum. Sowmya. Likewise another sum of Rs.37,325/, Rs.41,849.50 and Rs.1,21,674/ were the educational expenses of his daughter Sahana, Soujanya, and son Master. Janardhan Yadav. Accused also claims to have spent tution fee of Rs.36,428/ in respect of his son Janardhan Yadav. Accused has spent a sum of Rs.55,380/ towards registration fee and stamp duty of house no.21 at Chandra Layout, Bengaluru. Likewise in respect of site no.178 of Nagarabhavi II Stage, II Block, Bengaluru, a sum of Rs.95,615/ was spent by the accused towards registration fee and 126 Spl.C.C. No.244/2010 stamp duty. In respect of site no.1323 of Harappanahalli village, Jigani Hobli, Anekal Taluk, a sum of Rs.14,600/ was paid by the accused as registration fee and stamp duty when the said site was purchased from M/s. Nirman Shelters.
77. Coming to the site no.14 situated at Kelakote village of Chitradurga Taluk, this accused has spent a sum of Rs.335/ towards registration fee and stamp duty. A sum of Rs.5,400/, Rs.1,400/, Rs.8,624/, Rs.1,010/, Rs.4,918/, Rs.5,626/ and Rs.3,729/ were paid by the accused towards stamp duty and registration charges in respect of property situated at Holalkere Town Panchayati, Gowdihalli village of Holalkere Taluk, Kelakote village of 127 Spl.C.C. No.244/2010 Hireguntanuru Hobli, Ayyappaswamy Layout of Hosadurga Municipality, Vishwanathahalli village of Holalkere Taluk, Vishwanathahalli village of Holalkere Taluk, and Gangasamudra village of Chitradurga District.
78. This witness in order to convince the Court that during his investigation he had not let any stone unturned in respect of touching every facets of life of accused and his family, he gave evidence that they recorded the statement of Sri. S.N.Somasundar Deekshit who was the Priest who performed the house warming ceremony for which he was paid professional charges of Rs.12,000/. Accused had also spent Rs.50,000/ towards performing the 128 Spl.C.C. No.244/2010 marriage of his first daughter Sowmya, and equal amount was paid as rent to Sri Krishnachandra Kalyana Mantapa during marriage of his first daughter Sowmya. Another consolidated sum of Rs.29,000/ was spent towards that marriage. Another huge sum of Rs.70,000/ was paid as rent to Padmavati Kalyana Mantapa during marriage of his second daughter Sahana. A sum of Rs.45,000/ was the expenses for food during marriage of his second daughter Sahana. Another consolidated sum of Rs.33,000/ was the miscellaneous expenses which was incurred by the accused towards his second daughter Sahana marriage.
79. According to this witness accused has also spent a sum of Rs.18,600/ towards the 129 Spl.C.C. No.244/2010 house warming ceremony in respect of house no.14 of Kelakote, Chitradurga. A sum of Rs.13,000/ for house warming ceremony of house no.21 situated at Chandra Layout, Bengaluru. In respect of rearing of Mudhol hound, the accused has spend Rs.26,100/ for maintenance and medical expenses. Accused had spent a sum of Rs.5,700/ in order to purchase spectacles to his wife Smt. A.V.Gowramma. Accused also had spent a sum of Rs.16,442/ for marriage invitation cards purchased with The Club Westside, Forum, Hosur Road, Koramangala, Bengaluru. A sum of Rs.6,500/ was paid as club membership to the Lions Club situated ad Chandra Layout, Bengaluru. A sum of Rs.4,673/ and Rs.5,370/ was the 130 Spl.C.C. No.244/2010 membership fee paid by the accused to the Chandra Gymkana Institute of Chandra Layout and Cricket Club of Mumbai. Accused claims to have spent a sum of Rs.605/ for license and renewal of his DL, and Rs.11,605.91 was the amount spent towards obtaining LPG connection. To obtain can card from the Canara Bank, Subramanyanagara Branch, accused has spent a sum of Rs.2,041/.
80. The accused had spent a sum of Rs.13,415/ towards flight charges to his wife Smt. A.V.Gowramma when she travelled from Bengaluru to Mumbai. In order to perform Kalyanotsava at Tirupati in the name of his daughter Sahana a sum of Rs.3,035/ was paid. A sum of Rs.3,600/ 131 Spl.C.C. No.244/2010 was spent by the accused on medical check up of his wife Smt. A.V.Gowramma. The accused claims to have repaid home loan of Rs.5,80,421/ for the construction of Chandra Layout house to DHFL Vysya Housing Finance Ltd. Accused also had repaid home loan of Rs.3,46,556/ to Canara Bank, Subramanyanagara Branch, Bengaluru. He also had repaid loan of Rs.1,78,015/ to Onake Obavva Mahila Co operative Bank, Chitradurga. There is an evidence given by this witness that a sum of Rs.27,122.15 was the loan clearance amount paid by the accused to PLD Bank, wherein the loan was obtained for digging borewell in the name of his father Thimmappa. In respect of loan obtained from PLD Bank, 132 Spl.C.C. No.244/2010 Holalkere in the name of his father, accused has repaid loan in a sum of Rs.44,240.16. Likewise tractor loan obtained in the name of mother was repaid by accused by remitting a sum of Rs.27,560/. Accused has spent a sum of Rs.450/ for obtaining international debit card from ING Vysya Bank, N.T.Pete, Bengaluru. Another sum of Rs.125/ was also spent in respect of debit card in respect of SB account of the accused with Corporation Bank, Nrupatunga Road, Bengaluru.
81. According to this witness accused seems to have paid a rent of Rs.61,698/ for hiring vehicles from Minerva Tours and Travels for his personal use. An amount of 133 Spl.C.C. No.244/2010 Rs.17,85,694/ was spent by accused and his family members in respect of food and invisible expenditure. Accused also claims to have spent Rs.6,37,472/ for purchasing Gold and Silver ornaments in his name and his family member's name and this witness deposed that some of these transactions were benami in nature. Accused had paid a sum of Rs.3,51,800/ to M.C.I Chits Ltd., in the benami name of Sri A.V.Jayappa, brother of his wife. Accused had also paid a sum of Rs.356.95 as service charges in respect of SB account with ING Vysya Bank, Chitradurga.
Lastly accused had paid a sum of Rs.1,232.68 as service charges in respect of SB account of his wife Smt. A.V.Gowramma with ING Vysya Bank, Chitradurga. In all the 134 Spl.C.C. No.244/2010 total expenditure of accused and his family will be Rs.55,42,532/.
82. Coming to the crucial aspect of the income of the AGO and his family members, a total income was projected by the IO at Rs.54,82,336.74. To begin with total salary of the accused for the check period is considered at Rs.21,98,353.58. The accused agricultural income of Rs.2,52,588/ is considered in respect of Sy.No.28/2B measuring to an extent of 3 acres 38 guntas of Kalkunte village, Chitradurga Taluk. This figure is for the entire check period. Likewise in respect of survey no.71/5 measuring to an extent of 2 acres of Gangasamudra village, Holalkere Taluk Rs.1,35,008/ is considered as the agriculture income. Coming to 39 135 Spl.C.C. No.244/2010 guntas of land in survey no.71/7 of Gangasamudra village, Holalkere Taluk, a sum of Rs.37,273/ is considered as the agriculture income. In respect of 6 acres 33 guntas of land in survey no.92/3 of Gowdihalli, Holalkere Taluk, an income of Rs.81,913/ is taken into consideration.
83. Coming to survey no.42, 6 acres 16 guntas of land of Vishwanathahalli village, Holalkere Taluk an income of Rs.33,542/ is considered. Likewise a sum of Rs.98,103/ in respect of survey no.71/5 of Gangasamudra village, Holalkere Taluk, land measuring to an extent of 2 acres, which is claimed by the accused as the ancestral property is also taken into consideration.
136 Spl.C.C. No.244/2010
84. According to this witness accused had horticultural income of Rs.98,103/ in respect of ancestral property in survey no.71/5, measuring to an extent of 2 acres of Gangasamudra village, Holalkere Taluk. Likewise accused had horticultural income of Rs.82,089/ in respect of ancestral property in survey no.71/7, measuring to an extent of 39 guntas of Gangasamudra village, Holalkere Taluk. Likewise horticultural income of Rs.5,24,270/ from survey no.92/3 measuring to an extent of 6 acres 33 guntas of Gowdihalli, Holalkere Taluk was also considered. Accused had received horticultural income of Rs.2,11,641/ in respect of land bearing survey no.42 of Vishwanathahalli village, Holalkere Taluk 137 Spl.C.C. No.244/2010 measuring to an extent of 6 acres 16 guntas of land is also considered.
85. Coming to the different types of loan obtained by the accused and his family members, Rs.5,00,000/ was the housing loan obtained by the accused from DHFL Vysya Housing Finance Ltd., Another loan of Rs.7,00,000/ was obtained from Canara Bank, Subramanyanagara Branch, Bengaluru, by the accused for putting up construction. Accused also obtained home loan of Rs.1,00,000/ from the Onake Obavva Mahila Cooperative Bank, Chitradurga in the name of his wife Smt. A.V.Gowramma. Accused obtained loan of Rs.14,000/ in the name of his father 138 Spl.C.C. No.244/2010 Thimmappa from the PLD Bank to dig borewell. Another loan of Rs.24,000/ was obtained in the name of father of the accused from PLD Bank, Holalkere for installation of pump set. Likewise Smt. Eramma also obtained tractor loan of Rs.4,65,000/. Accused had received interest of Rs.3,693.69 in respect of SB account with the State Bank of Mysore, West of Chord Road Branch, Bengaluru, which stood in the name of his wife. Likewise an income of Rs.2,264/ in the form of interest to the SB account by the Corporation Bank, Nrupatunga Road Branch, Bengaluru to accused bank account. Likewise ING Vysya Bank, New Taragupete Branch, Bengaluru also paid an interest of Rs.1,056.26 in respect of SB account in the 139 Spl.C.C. No.244/2010 name of accused. A sum of Rs.2,958.50, Rs.329/, Rs.2,190/, Rs.324/, Rs.50/, Rs.129/, Rs.130/ , Rs.7,720/, Rs.810/ , Rs.145/, Rs.292/, Rs.2,455.50, and Rs.7.95 were the different interests paid by different banks to the SB A/c. Maintained by the accused and his family members with Merchants Souharda Sahakara Bank of Chitradurga, Oriental Bank of Commerce of M.G.Road Branch, Canara Bank of Sheshadripuram Branch, Vijaya Bank of Chamarajapete Branch, ING Vysya Bank of Chitradurga Onake Obavva Mahila Co operative Bank Ltd., of Chitradurga, State Bank of Mysore of Holalkere Branch, Syndicate Bank of Basaweshwara Road Branch, Canara Bank of Kamakya Branch, 140 Spl.C.C. No.244/2010 Canara Bank of Subramanyanagara Branch, ING Vysya Bank of Chitradurga. In all a total income of the accused and his family members roll up to Rs.54,82,336.74. This IO completes the investigation and then submitted the Final Report to the Superintendent of Police, for seeking the Sanction Order against the accused to submit the Charge Sheet. The above 20 prosecution witnesses who vouch safed the fact that the total worth of value of expenditure far reaches the total lawful income of the accused and his family. According to the prosecution, there cannot be any iota of doubt that accused has amassed the wealth disproportionate to his known source of income. Hence, prayed this 141 Spl.C.C. No.244/2010 Court to show no leniency and convict this accused in accordance with law.
86. As the prosecution ocular evidence of the witnesses were filled with incriminating evidence, it is the mandate of procedural law that Court has to bring the incriminating evidence to the notice and knowledge of the accused and to obtain his answer. In pursuance of the same the Cr.P.C. Sec.313 statement was recorded, ofcourse the answer was one of total denial of the case, and the accused chose to lead both oral and documentary evidence. In response to the same accused got examined one witness as DW1 and as many as six exhibits came to be marked. DW1 is none other than witness by name Dr. Mallappa, who was the retired 142 Spl.C.C. No.244/2010 Agriculture Director and according to him he placed Ex.D.1 and identified the same as certificate one issued by him when he was the Director of the said Department in favour of this accused. The accused mother Eramma had owned agriculture land at Gowdihalli Village of Chitradurga District and the Ex.D.1 is also enclosed with another statement to show the income which is also marked at Ex.D.2. In respect of accused father Thimmappa, he also owns an agricultural land at Vishwanathanahalli Village of Holalkere, and he has issued certificate Ex.D.3. This Ex.D.3 is also the statement to show the yield and possible income derived from those agricultural lands. Likewise Ex.D.5 and D.6 are the documents 143 Spl.C.C. No.244/2010 in the form of statements containing yield and income which was generated from those agricultural lands. According to this witness as he was associated with Agriculture Department, from the date of joining service till his retirement, he claims to be an Expert to issue Ex.D.1 to D.6.
87. These were the oral evidence of both prosecution and accused witness. Now in order to touch the core issue as to whether to begin with, different items of the assets are concerned as it is the the complete domain of accused and investment in respect of which of the properties was made, their maintenance and their day to day affairs was from the income of the accused these aspects shall have to be proved by the prosecution 144 Spl.C.C. No.244/2010 beyond all reasonable doubt. In the instant case, the dilemma which it faces is that most of the assets which are immovable properties stand in the name of parents of the accused. On a photogenic scanning of the materials, two IOs who conducted the investigation in detail were not able to highlight the fact that when there was a severance of bed and bread of the accused and his son, whether accused parents were dependent on him or not, both Thimmappa and his wife Eramma had independently acquired those properties. Merely because major acquisitions of immovable properties have taken in favour of Thimmappa and his wife, there cannot be any inference that it is out of the ill gotten money/wealth of the accused himself. 145 Spl.C.C. No.244/2010 Likewise, the investment made by Thimmappa and his wife in order to come to a conclusion that it is on account of the money paid by the accused, there must be direct and primary evidence. Only when the prosecution is able to show that there were such clinching material in that regard, then it can be considered that indeed it is an investment made by the accused himself. Randomly both the IOs by name Prasanna V. Raju and K.C. Lakshminarayana, then Police Inspectors of Karnataka Lokayukta, used the word benami. If the prosecution were to stick to the stand that most of the acquisitions including expenditure were undertaken by the accused as benami transactions, then they are duty bound to prove this aspect too 146 Spl.C.C. No.244/2010 beyond all shadow of doubt. So, now this Court will have to identify as to whether different items of the assets and expenditure projected by the prosecution were purely from the side of the accused himself or not. ASSETS:
88. The PW19, PW10 and PW9 who have submitted the Final Report and Charge Sheet are firm that total assets of the accused is worth Rs.85,40,099.30. This category of different items are 53 in total. So according to them this accused was so intelligent that having amassed illgotten wealth by way of unlawful means was clever enough to invest in the name of his parents. Another interesting aspect of this matter is that directly the two IOs who completed the investigation are 147 Spl.C.C. No.244/2010 claiming that it is a benami transaction or transaction in the name of ostensible owner i.e., to say investment in the name of third person or the known person.
89. To this initial investigation and the evidence given by the Investigating Officer and reference in the Charge sheet was vehemently opposed by the accused on the ground that in the cross examination of both PW9 and PW10 i.e., Prasanna V. Raju and K.C. Lakshminarayana admitted that they could not come across any documents to show that most of the property acquisition made by the accused are in the name of Thimmappa or Eramma was by the accused himself. In the absence of a primary evidence or documents directly connecting this aspect, 148 Spl.C.C. No.244/2010 it cannot be said that accused had invested and purchased the property in the name of his parents.
90. In order to further discuss in respect of investment in the name of parents, first, one has to understand what actually benami property means. In this regard, the definition found in the commentary pertaining to this law reads as "benami property means any property which is the subject matter of benami transaction and also includes the proceeds from such property". Further, this benami property also includes any property which is a subject matter of a benami transaction, the proceeds from such property are as defined under the prohibition of 149 Spl.C.C. No.244/2010 Benami Property Transaction Act 1988. In this regard, the Hon'ble Apex Court has dealt in detail in respect of these aspects reported in 1999 (4) SCC 243 in Pawan Kumar Gupta vs. Rochiram Nagdeo.
91. It is a settled position that in order to determine how the transaction has to be identified as a benami transaction there are certain tests contemplated which are as under: a. motive of entering into a benami transaction;
b. relationship between beneficial owner and benamidar;
c. nature and possession of property after purchase;
150 Spl.C.C. No.244/2010d. source from which purchase money came; and e. Custody of title deed after sale.
92. These aspects were elobarately discussed and in this regard principles were laid down by the Hon'ble Supreme Court of India in AIR 1974 SC 171 in Jaydayal Poddar vs. Mst. Bibi Hazra, in AIR 1965 AP 225 in Loccha Reddi vs. Venkamma. Hon'ble Apex Court has held that the motive or an intention of the party is very essential ingredient of benami transaction. The most prominent test is that motive and source of consideration paid for the transaction, and possession of property also matters. Though intention itself cannot be a determining 151 Spl.C.C. No.244/2010 factor, it has relative weight when it comes to burden of proof. In this regard, principles were laid down by the Hon'ble Apex Court in AIR 1980 SC 727 in Bhim Singh and another vs. Kan Singh, has held that, the principles governing the determination of the question whether a transfer is a benami or not are: the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is primafacie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; the true 152 Spl.C.C. No.244/2010 character of the transaction is governed by the intention of the person who has contributed the purchase money; and lastly the question as to what his intention was, has to be decided on the basis of the surrounding circumstances, the relationship of the parties the motives governing their action in bringing about the transaction and their subsequent conduct.
93. Where a property is acquired by a person standing in a fiduciary capacity, for the benefit of another towards whom he stands in such capacity, such acquisition of property cannot be treated as benami. Fiduciary relation appears in wide variety of business relationships. The following are come of the fiduciary relationship: 153 Spl.C.C. No.244/2010
a. Lawyer and client;
b. Principal and agent;
c. Executor ad legatees;
d. Guardian and ward;
e. Board members and shareholders;
f. Promoter and stock subscriber; and g. Trustee and beneficiary.
94. Coming to the very important aspect of who cannot be a benamidar, law is very clear. Where a property is acquired by a person, out of known sources, in the name of his or her spouse or in his/ her children name, such transfer of property shall not be treated as benami. In this regard, I place my relevance in a decision reported in 1977 SCC online Raj 524 in CIT vs. Sohanlal. Under 154 Spl.C.C. No.244/2010 such circumstances, when the principles enunciated in the above said case and also the settled position of law is concerned in the present case, Smt. Gowramma and her four children cannot be benamidars. This also implies that parents of the accused are not included in this exception. To conclude benami transaction essentially involve the transfer of property. The definition of benami transaction as it involves transfer of property in another person name and the intention of the parties plays a major factor in determining this aspect.
95. Coming to the immovable property item No.1 of the charge sheet is a site carved out of Sy.No.430 and 431 and the value of the 155 Spl.C.C. No.244/2010 same is Rs.7,000/. So also property situated at Gowdihalli Village carved out of Sy.No.92/3 is 6 acres and 33 guntas, and the value is shown as Rs.14,000/ and these two properties are concerned, admittedly they do not stand in the name of accused. In that regard, we have to fall back on the evidence of PW10 who has under taken most part of the investigation in this case. As I have already culled out the examination in chief in my earlier discussion this witness has reiterated that he has collected both the title deeds and incidental revenue documents in respect of these properties. In his examination in chief for the sake of convenience, I would like to once again refer to that part of this evidence found in his 156 Spl.C.C. No.244/2010 examination in chief, wherein he has deposed that accused has paid Rs.7,000/ which is the successful bid amount in an open auction in respect of site No.10 and Sy.No.430 and 431 on 11.03.1981 and in this regard he placed documents at Ex.P.14 and P.15. Admittedly according to this witness, the accused claims to have purchased the property in the name of his father Thimmappa. So the only documents collected by the IO was Ex.P.14 and P.15 in respect of this property. When these two documents stand in the name of Thimmappa, there are no documents which show that bid amount of Rs.7000/ was paid by the accused himself. This is what the direct evidence which this Court needs. 157 Spl.C.C. No.244/2010
96. In this regard, this PW10 gives an admission which uproots the case of the prosecution. Same is extracted as under: "ನಪ 14 ರ ಪಪಟ ಸಸಖಖಖ 1 ರ ಪಪಕಕರ ಸರಖರ ನಸ. 430 ಮತತತ 431 ರಲಲ ನರರಸದ ನರಖವಶನ ಸಸಖಖಖ 10 ನತನ ತಮಮಪಪರವರತ ದನಕಸಕ 11.03.1981 ರಸದತ ಬಹರಸಗ ಹರಕಜನಲಲ ಖರವದ ಮಕಡದಕದರಖ ಎನತನವಪದತ ನಜ ......... ದಕಖಲಖಗಳ ಪಪಕಕರ ಖರವದ ಮತತವನತನ ತಮಮಪಪರವರಖವ ಪಕವತ ಮಕಡದಕದರಖ ಎನತನವಪದತ ಸರ. ನರಖವಶನ ಸಸಖಖಖ 10 ನತನ ಖರವದ ಮಕಡಲತ ರರ. 7,000/ ವನತನ ಆರಖರವಪ ಕಖರಟಟದಕದರಖ ಎಸಬ ಬಗಖಗ ತಖರವರಸಲತ ಯಕವಪದಖವ ದಕಖಲಖಗಳತ ಇಲಲ ಎನತನವಪದತ ಸರ".
97. This is a direct evidence touching this item of the property. Now how the prosecution can contend that investment in respect of asset of item No.1 of Charge Sheet is funded by the accused. This admission and including this property as the property of the accused in the category of asset by the P.W.s - 9 and 10 are completely mismatch. It 158 Spl.C.C. No.244/2010 is a law that prosecution shall have to prove the guilt of the accused beyond all reasonable doubt. There cannot be any inference drawn in favour of the prosecution or no presumption can be drawn that all the property standing in the name of parents of the accused were on account of direct investment made by the accused. Equally there can be a possibility of accused pooling his investments or money to purchase the property in the name of his parents, that particular aspect should be proved in accordance with law. Under such circumstance, this Court is not inclined to accept the aspect that Rs.7,000/ which is the bid amount was paid by the accused in the name of his father or mother. Hence, out 159 Spl.C.C. No.244/2010 of Rs.85,40,099.30, a sum of Rs.7,000/ shall have to be deducted. The calculation goes as follows: Rs.85,40,099.30 Rs.7,000, which comes to Rs.85,33,099.30.
98. In respect of other property i.e., Sy.No.92/3 measuring to an extent of 6 acres 33 guntas of Gowdihalli Village is concerned, same is also not standing in the name of this accused. Again if we apply the same yardstick according to me the investigation under taken by PW10 is not only hallow but also falls to the ground. This PW10 in his examination in chief gives evidence that the said land was purchased on 07.02.1983 from vendors by name T.Sannathimmappa, 160 Spl.C.C. No.244/2010 G.S.Halaswamy, G.S.Nagaraja and G.S.Venugopala for a sale consideration of Rs.14,000/ which was in the name of Eramma - mother of the accused. Ex.P.134 is the only document placed by this IO to form an opinion that the sale consideration was mooted by the accused which was from his ill gotten wealth to invest in real estate. Admittedly when the above two immovable properties documents are gone through, the relevant documents are Ex.P.14, Ex.P.15 and Ex.P.134. The law is well settled that mere marking of documents is no proof of its contents. In the instant case greatest impediment that are faced by the prosecution are that they have to place that cohesive and cogent materials to show that these three 161 Spl.C.C. No.244/2010 title deeds were on account of sale consideration diverted by the accused. In this regard, I would like to place my reliance in a reported decision that is' LAWS (KAR) 2016 (2) 292 in State vs. Gurumallappa, wherein the Hon'ble High Court has held that, mere production and marking of the said documents as an exhibit is not enough. Execution has to be proved by way of admissible facts, i.e., by the evidence of those persons who can vouchsafe for the truth of the contents appearing therein. The ratio laid down by the Hon'ble High Court in the said case squarely applies to the case on hand. Likewise, one more decision reported in LAWS (SC) 2011 (1) 102 in Alamelu vs. State represented by Police Inspector, 162 Spl.C.C. No.244/2010 wherein the Hon'ble Apex Court has held that the legal position is not in dispute. That mere production and marking of documents as an exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence i.e., by the evidence of those persons who can vouchsafe for the truth of the facts in issue. So according to me the sum of Rs.14,000/ shall have to be deducted from the total assets. The calculation is as follows - Rs.85,33,099.30 - Rs.14,000, the net is Rs.85,19,099.30.
99. Coming to the site No.14 of Kelakote Village, of Chitradurga district, where the sale consideration is Rs.3,000/ and site 163 Spl.C.C. No.244/2010 No.43 and 44 of Ayappaswamy Layout, Hosadurga Town sale consideration Rs.10,000/ are concerned it was purchased in the name of wife of accused and this sale consideration of Rs.3,000/ can be considered as the investment of the accused directly. So far as two sites situated at Ayappaswamy Layout of Hosadurga town was purchased by accused on 12.03.1987 from its vendors by name T.D.Lakshman, D.V.Narayanashetty and M.S.Mani for a total sale consideration of Rs.10,000/ in the name of accused father Thimmappa. Ex.P.17 through is a simple sale deed only to show that Thimmappa paid the sale consideration to the vendors, and that property was purchased. So this Rs.10,000/ shall have to 164 Spl.C.C. No.244/2010 be deducted from Rs.85,19,099.30. Hence, Rs.85,19,099.30 - Rs.10,000/ = Rs.85,09,099.30.
100. Coming to the properties at Sy.No.42 i.e., 6 acres 16 guntas of land at Vishwanathanahalli Village for a sale consideration of Rs.40,000/ which was purchased in the name of accused father - Thimmappa vide sale deed at Ex.P.135. If the above said principles are applied, even this Rs.40,000/ also have to be deducted from Rs.85,09,099.30. Hence, Rs.85,09,099.30 Rs.40,000 and the net is Rs.84,69,099.30.
101. Coming to 3 acres 38 guntas of land in Sy.No.28/2B of Kalkunte village, Hireguntanuru Hobli, Chitradurga Taluk 165 Spl.C.C. No.244/2010 vide sale deed at Ex.P.20 for a sale consideration of Rs.58,000/ which was purchased in the name of Eramma - mother of the accused, also cannot be considered on account of the fact that this Ex.P.20 itself has not shown that it was the indirect investment on the part of the accused. Before I under take calculation in this regard, I would like to extract some of the direct admission given by this witness in his cross examination, "ನಪ 19 ರ ಪಪಟ ಸಸಖಖಖ 22 ರ ಪಪಕಕರ ಸರಖರ ನಸ.42 ರ 6 ಎಕರಖ 16 ಗತಸಟಖ ಜರವನನತನ ದನಕಸಕ 22.01.1990 ರಸದತ ತಮಮಪಪ ಎಸಬತವವರತ ರರ. 40,000/ ಕಖಕ ರಸಗಮಮರವರಸದ ಖರವದ ಮಕಡದಕದರಖ ಎನತನವಪದತ ಸರ. ದಕಖಲಖಯ ಪಪಕಕರ ಕಪಯದ ಮಬಲಗನತನ ತಮಮಪಪರವರಖವ ಪಕವತ ಮಕಡದಕದರಖ ಎನತನವಪದತ ಸರ. ಈ ಆಸತಯನತನ ಖರವದಸತರಕಗ ಕಪಯದ ಮಬಲಗಳನತನ ಆರಖರವಪ 166 Spl.C.C. No.244/2010 ಕಖರಟಟದಕದರಖ ಎಸದತ ತಖರವರಸಲತ ಯಕವಪದಖವ ದಕಖಲಖಗಳತ ಇಲಲ ಎನತನವಪದತ ಸರ". So according to me expecting the unexpected by only collecting documents which stand in the name of parents of the accused to connect that accused has purchased that property cannot make any sense. Hence, out of Rs.84,69,099.30, Rs.58,000/ needs to be deducted. Hence, the net total asset of the accused will be Rs.84,11,099.30.
102. Coming to the site measuring 232.75 square meter at site no.178 of Nagarabhavi II Stage, II Block, Bengaluru, which was purchased by Thimmappa - father of accused in an open auction by remitting sale consideration of Rs.9,77,550/ vide Ex.P.21. 167 Spl.C.C. No.244/2010 In fact as per this witness deposition, after the death of the father of the accused, the property documents have been changed in the name of Eramma - mother of the accused. Ofcourse, for which purpose this transfer of khata in the name of Eramma took place which in respect of this case may not make any material difference. But suffice it to say that, Ex.P.21, on its face value can only show that the said property acquisition is purely by Thimmappa - father of accused. At the cost of repetition it is discussed that the title document relied upon by the Investigating Officer PW9 and PW10 cannot demonstrate before the Court that financier for this investment was accused. So this sale consideration will have to be deducted from 168 Spl.C.C. No.244/2010 the total net assets of the accused. Hence, out of Rs.84,11,099.30, Rs.9,77,550/ needs to be deducted. Hence, the net assets is Rs.74,33,549.30.
103. Coming to another property i.e., Panchayati assessment no.1263/31A, was purchased by Eramma vide sale deed dated 03.11.2001 at Ex.P.22 from G.V.Nagappa for a sum of Rs.40,000/, site no.1323 measuring 40x70 feet situated at Harappanahalli village, Jigani Hobli, Anekal Taluk vide sale deed at Ex.P.24 dated 02.09.2002 for a sale consideration of Rs.1,00,000/ by father of the accused Thimmappa from M/S.Nirman Shelters, survey no.73/3P agriculture land measuring 169 Spl.C.C. No.244/2010 39 guntas of Gangasamudra village vide documents at Ex.P.136 dated 21.04.2005 for sale consideration of Rs.35,000/ also conveyed that they were not the acquisition of accused himself. Ex.P.22, Ex.P.24 and Ex.P.136 did not convey that accused has invested money for purchase of property in the name of his parents. In fact this aspect has been squarely admitted by this witness in his crossexamination. So these three sale considerations amounts will have to be deducted from the total net assets of the accused. Hence, out of Rs.74,33,549.30, Rs.40,000/, Rs.1,00,000/ and Rs.35,000/ needs to be deducted. Hence, the net asset is Rs.72,58,549.30. 170 Spl.C.C. No.244/2010
104. So far as purchasing site no.10 in Municipal Khata No.2552/2538 in Holalkere Town, Chitradurga District was in the name of father of accused. Ex.P.10 is to this effect. So the sale consideration of Rs.5,95,000/ cannot enure to the benefit of the prosecution to contend that the accused has invested that money. Likewise, in respect of purchase of 1 acre 14 guntas of land in survey no.46/3 of Vishwanathahalli village, Holalkere Taluk, Chitradurga District vide Ex.P.138 dated 24.01.2004 for a sale consideration of Rs.90,000/ cannot be considered as the investment by the accused. So these amounts shall have to be deducted. Hence, out of Rs.72,58,549.30, Rs.5,95,000/, and Rs.90,000/ needs to 171 Spl.C.C. No.244/2010 be deducted. Hence, the net asset is Rs.65,73,549.30/.
105. In respect of a sum of Rs.36,626/ which was the balance outstanding available in the SB account of Thimmappa with ING Vysya Bank, Chitradurga vide Ex.P.141 cannot be the asset of the accused. Hence, this amount is to be deducted from the total asset of the accused. Hence, out of Rs.65,73,549.30, Rs.36,626/, needs to be deducted. Hence, the net asset is Rs.65,36,923.30/.
106. Coming to the major purchase on behalf of Eramma in a total of Rs.4,70,595/ to purchase Tractor from Sri Balaji Automobiles, Chitradurga vide Ex.P.143 and 172 Spl.C.C. No.244/2010 also purchased trailor for a sum of Rs.1,34,000/ from M/S.Shiva Naradamuni Agro Trailors, Chitradurga vide Ex.P.144, cannot show before the Court that son has invested on behalf of his mother. It is an admitted case of the prosecution that Thimmappa's family was an agriculturist family, so their main avocation was agriculture. Under such circumstances, the prosecution cannot contend that parents of the accused were completely depended on their son as he was holding a white collared job. So this amount shall have to be deducted. Hence, out of Rs.65,36,923.30/, Rs.4,70,595/ and Rs.1,34,000/, needs to be deducted. Hence, the net asset is Rs.59,32,328.30. 173 Spl.C.C. No.244/2010
107. It is apt to discuss in respect of Ex.P.6 which is the Valuation Report submitted by the Engineer, PWD Department. This Ex.P.6 comprises of two properties one situated at Chandra Layout, Bengaluru and another situated at Kelakote Village of Chitradurga District. In this regard, I have already discussed in respect of the examination in chief of PW5 by name B. Prasanna Kumar. The pith and substance of this persons evidence is that the ADGP writes a letter of requisition to the Chief Engineer, PWD, who in turn directs this Engineer who was then the Assistant Executive Engineer to conduct spot inspection of two house properties situated at the above said places. In his examination in chief it is too brief to draw an 174 Spl.C.C. No.244/2010 inference in favour of the prosecution. He only deposed that on the basis of the Schedules of Rates for the construction year of the Chandra Layout building, he has calculated the same and has valuated that property as 21.40 lakhs. Likewise, in respect of another property at Kelakote building at Chitradurga District, he adopted the same procedure, wherein it was assessed at 12.85 lakhs.
108. Now we have to look into the contents of Ex.P.6. Admittedly, when this Report containing two properties are gone through, as this PW5 made it clear that, this Report also says that it was only on the basis of the limited inputs furnished by the ADGP, Karnataka Lokayuktha, he has under taken 175 Spl.C.C. No.244/2010 inspection work. Further he has spoken about the measurement, year of construction, and that property comprising of basement, ground, first and second floor with compound and MS grill gate. The basement floor was measured at 124.44 sq.mt. and it was a cement concrete floor without red oxide. The built up area of the ground floor is referred at 84.89 sq.mt. Ultimately this Expert comes to the conclusion that it was worth Rs.21.40 lakhs. Besides that, the flooring of first and second floor had a marble flooring with a ceramic floor that were used to bathroom and toilets. So far as first part of Ex.P.6 is concerned, he was attacked on the part of the accused by way of cross examination that very important 176 Spl.C.C. No.244/2010 aspects whether the said building was constructed under self supervision or was it entrusted to the Contractor either for the whole construction work or in piece meal. According to me this suggestion and admission elicited from the mouth of PW5 indeed holds good ground. If any construction work is under taken by way of self supervision then a margin of 10 to 15% definitely can be saved. Likewise it also matters in case of purchase of construction materials predominantly cement, baby jelly, wood, bricks, hollow bricks and tiles. In the instant case Ex.P.6 and the evidence of PW5 are conspicuously silent in respect of these aspects. Another very important aspect which matters the most is that if it is the 177 Spl.C.C. No.244/2010 case and contention of the prosecution that accused himself finances the construction by raising loans from various financial institutions, the greater burden lies on the prosecution to show that how it was channelized or construction work were under taken. The very fact that PW5 has valuated only upon the limited materials provided by the ADGP, which was sent along with requisition letter, can only convey that even this Assistant Execution Engineer too was asked to give Ex.P.6 under that prevailing conditions and compelling circumstances, which ofcourse, can only tantamounts to being very limited both in furnishing report and undertaking inspection which is not complete. When Ex.P.6 gone through, 178 Spl.C.C. No.244/2010 this Expert has made it clear that he could not collect the samples either of the wall or of the ceiling or of the flooring on account of the fact that they could not gain ingress into the said house. If this is the limitation which was imposed upon the PW5, then the question would arise as to how complete and comprehensive is Ex.P.6. Moreover the task which was entrusted to PW5 was only on account of he belonged to the Public works Department wherein it has got a personnel who are Expert in that field. In a nutshell Ex.P.6 is a Report given by PW5 who is an Expert of Experts. According to me when this report is gone through and when the cross examination admission of PW5 is looked into, this element is wantonly missing. Under 179 Spl.C.C. No.244/2010 such circumstances, even though for the reasons best known, the accused was not dare enough to lead any evidence either of himself or examining any other approved valuer who can place the Valuation Report. Merely because there is no defence evidence, Ex.P.6 and evidence of PW5 cannot be considered as gospel of truth. So far as Chandra Layout house is considered PW9 and PW10 have mechanically accepted this Ex.P.6. In fact discretion which was available to both the IOs to pin point grey area in Ex.P.6 was not shown to PW5. That means there is no application of mind on the part of both the IOs. So long as factors like depreciation in price of value of property or materials usage, purchase of construction 180 Spl.C.C. No.244/2010 materials, labourers including skilled labourers, what was the wages paid, whether by following the mandate of payment of Wages Act, to these aspects important factors are missing.
109. If this Court were to form an opinion against Ex.P.6 and evidence of PW5, there must be some better documents for comparison. Admittedly, in this case but for cross examining PW5, PW9 and PW10, this accused has not taken risk to produce the Valuation Report in respect of this property. But that does not mean that this Court has to accept the Valuation of Chandra Layout property as reported by PW5 valuing it in a total sum of Rs.21.40 lakhs. According to me keeping in mind the usage, depreciation, self 181 Spl.C.C. No.244/2010 supervision, purchase of construction materials, this Court considers the approximate value of Chandra Layout property to be in a sum of Rs.18,00,000/ only. Hence, a sum of Rs.3,40,000/ this Court feels that it is the excess amount projected by PW5 vide Ex.P.6 which has no rationale at all. Hence, out of the total net assets of Rs.59,32,328.30, Rs.3,40,000/ needs to be deducted. Hence, the net asset is Rs.55,92,328.30.
110. Coming to the other property which is situated at Chitradurga District in site No.14 of Kelakote village, PW5 has given value of that property at 12.85 lakhs. Ofcourse this property stood in the name of accused wife Gowramma and it is the claim of the accused 182 Spl.C.C. No.244/2010 that he constructed the property out of his own earnings. Now whether Rs.12,85,000/ shall have to be accepted on its face value as given by PW5 is again a million dollar question. This so called expert, the Assistant Executive Engineer has taken a recourse to the same step of valuing the property by not considering important factors like as I have said earlier depreciation, supervision, purchase of construction materials, its quality, wood, labour / skilled labour. Considering the fact that I have deducted around Rs.3,40,000/ in respect of Chandra Layout property, I deem it proper to not to consider Rs.85,000/ from the total sum of Rs.12,85,000/ as it is felt to be slightly on a higher side. So for all practical purpose, the 183 Spl.C.C. No.244/2010 value of the Kelagote Village site No.14 property is to be considered as Rs.12,00,000/. Hence, out of the total net assets of Rs.55,92,328.30, Rs.85,000/ needs to be deducted. Hence, the net asset is Rs.55,07,328.30.
111. Coming to the another crucial aspect of PW10 considering the value of total gold, silver and house hold articles found with accused are concerned, again in respect of some of these aspects there is no clarity at all. Atleast so far as gold and silver articles are concerned experienced appraiser by name one Chandrappa's help was taken according to PW9, and according to that police officer has determined the approximate 184 Spl.C.C. No.244/2010 value of those gold and silver articles. In the evidence of PW9 this witness himself admits that PW9 who being the Police Inspector who raided the house and office of the accused has not considered some of the important factors. The sum of Rs.2,51,760/ was the estimated value of 520 grams of gold ornaments found in the wardrobe of the master bed room of the accused house at Chandra Layout. Rs.41,000/ was the estimated value of 97 grams of gold ornaments found in the locker of SBM, West of Chord Road, in the name of accused wife - Gowramma. Rs.56,790/ was the estimated value of silver for 9.815 grams of silver ornaments found in the house of the accused at Chandra Layout. But in the cross 185 Spl.C.C. No.244/2010 examination of PW10 as I have said earlier nothing exceptional has been found to show that it has got all that impression of truth mainly because the statement of the appraiser is not recorded and found. He is not shown as one of the charge sheet witness, but surprisingly PW2 and PW3 who are the public servants, clerical stall of KGID Department, who were treated as panchas have been examined. In the cross examination of PW2 by name Smt. Usha, she squarely gave admission that the Police Inspector did not ascertain the details regarding purchase timings of different items of valuables and value of them. This evidence showed that the Police Inspector who should have been diligent enough to ascertain from 186 Spl.C.C. No.244/2010 accused and his wife as to out of the total gold and silver ornaments which were customary presents at the time of marriage or family function and which items of the valuables were outright purchase from the Jewellery shop. The appraiser cannot under take this work unless there is a proper instructions or Police Inspector himself under takes this very important enquiry. If a value of the valuable has to be determined on the approximate basis as on the date of raid, again there must be that authenticated documents issued from the competent institution or authority which should show that on that particular date of raid that specified amount was the rate for per gram of gold or silver. Again when it comes to the 187 Spl.C.C. No.244/2010 question of purity of them then the police inspector shall have to make it clear whether it is 22 or 24 carat gold. So this Ex.P.2 to P.4 which are three Mahazars, one drawn at Chandra Layout house, another at SBM, West of Chord Road, and one more at Cubbon Park Police Station, Bengaluru are without these contents and recitals.
112. Coming to the evidence of PW3 by name Nagaraj H.G. who was also one of the Mahazar witness to these three Mahazars consistently gave his answer in his cross examination that most part of the contents of the Mahazar was dictated by PW9 himself. What this Court can understand from the evidence of PW2 and PW3 is that they were made to sign on Ex.P.2 to P.4 mechanically 188 Spl.C.C. No.244/2010 without being properly instructed and intimated so they were not involved in the process of arriving at a conclusion while fixing approximate price of those valuables.
113. Coming to the evidence of star witness PW9 who was instrumental in registering the case against the accused. Because Ex.P.1 given by PW1 has been set in motion by obtaining search warrant from the jurisdictional Court and also conducting search and raid of the premises of the accused including his office chamber. In the cross examination there are certain uprooting admissions which in fact creates a doubt in the mind of this Court as to initial investigation done by this witness because some of his answers ravel the truth in 189 Spl.C.C. No.244/2010 respect of how serious his investigation was. Some of which are extracted as below: "It is true except collecting documents I have not done any further investigation in the case. It is true during the course of mahazar I have not mentioned the details of each item and cross verification. I have mentioned all the entries relating to investigation done by me in the case diary. It is true I have mentioned the value of gold and silver ornaments on the day of seizure. It is true the panch witnesses were not experts or appraisers".
114. Under such circumstances, now it is the duty of the Court to accept the value of gold and silver articles as given by PW9 or to form its own opinion. In the instant case when the cross examination of PW9 and PW10 which are the only available documents are through where the intention of the accused or his 190 Spl.C.C. No.244/2010 contentions could be gathered. But the accused seems to have not bestowed much interest in respect of gold and silver articles valuation or its approximate prices. He admits that they were the acquisition of accused and his family members. There is nothing in the cross examination by way of direct question or suggestion either to PW9 or PW10, this Court could make or gather his intention. Even though the approximate value of gold and silver articles are considered as on that day of raid bu this approach may not sound realistic or pragmatic, but this Court has no better materials to form a different opinion against the evidence given by PW9 and PW10. Hence, those values are taken as it is.
191 Spl.C.C. No.244/2010
115. Coming to the value of house hold articles in a total sum of Rs.10,71,589/ which ofcourse includes electronic and electric instruments /gadgets, furniture, garments found in the house of the accused. Again PW2, PW3 and PW9 gave consistent evidence that date of purchase of all the house hold articles were not collected. They do not know whether all were purchased or some were presented. The very fact that PW9 in his cross examination gave candid admission that they were not experts in this sphere in turn signifying the fact that besides quoting the total value of approximate, it has no sound basis. Hence, considering the check period and as on the date of raid what was the designation of the accused and the 192 Spl.C.C. No.244/2010 post held by him, also taking judicial notice of some of the electronic and electric gadgets approximate value require to be determined because their usage period or life expectancy cannot be more than five years from the date of purchase, if they are brand new one. So I deem it proper to consider the total value of house hold articles to be at Rs.7,00,000/ only. Under such circumstances extra Rs.3,71,589 shall have to be deducted. Hence, out of the total net assets of Rs.55,07,328.30, Rs.3,71,589/ needs to be deducted. Hence, the net asset is Rs.51,35,739.30.
116. Under such circumstances, according to me the total worth of assets of accused and 193 Spl.C.C. No.244/2010 his family members is considered to be Rs.51,35,739.30. Some of the minor items of the assets have not been disputed by the accused and his only bone of contention was that his father and mother never dependent on him and even admitting for the sake of arguments that it is the doubt entertained by the IO that accused might have invested money in the name of his mother and father that has been not proved by the prosecution. In this regard, he also relied upon the decision reported in AIR 2017 SC 3713 in Vasant Rao Guhe vs. State of Madhya Pradesh has held that "Prevention of Corruption Act Sec.13(1)(e) - Criminal misconduct by public servant - possession of assets disproportionate to income - 194 Spl.C.C. No.244/2010 Prosecution failed to prove that accused holding assets disproportionate to his known sources of income - Accused not required to furnish explanation to satisfactorily account for same - Accused entitled to benefit of doubt".
117. According to me, the ratio laid down by the Hon'ble Apex Court comes to the aid of the accused in this case, because at the initial stage, the prosecution will have to make it clear or bridge that gap to show that, but for accused, Thimmappa and Eramma could not have acquired an inch of property either at Chitradurga District or elsewhere. As this aspect requires to be proved by the prosecution by placing legal evidence, this 195 Spl.C.C. No.244/2010 accused need not lead any rebuttal evidence because there is no direct evidence adduced by the prosecution.
EXPENDITURE
118. Since this Court has already formed an opinion that assets in the name of Thimmapa and Eramma cannot be considered as the assets of accused wife and children, hence, those spouses i.e., Thimmappa and Eramma are out of the picture. In this regard so far as expenditure is concerned PW10 finally reports that a total value of the expenditure comes to Rs.55,42,532/. Again the prosecution shall have to prove that any expenditure or expenses incurred by both the parents of the accused were that of accused 196 Spl.C.C. No.244/2010 himself. In this regard a sum of Rs.2,700/ paid towards the expenses of Tractor No.KA 16 T7957 and 7958 which stood in the name of accused mother - Eramma, shall have to be deducted from the total expenditure of Rs.55,42,532/. Hence, Rs.55,42,532 - Rs.2,700/, the net expenditure comes to Rs.55,39,832/.
119. Similarly, accused claims to have spent Rs.1,11,780/ towards the fuel and maintenance expenses of the above said Tractor and Trailor. In fact that vehicle even now stands in the name of Eramma. There is no oral and documentary evidence to show that accused has spent this amount. Hence, this amount has to be deducted from Rs.55,39,832/. The net expenditure is 197 Spl.C.C. No.244/2010 Rs.55,39,832 - Rs.1,11,780 = Rs.54,28,052/.
120. A sum of Rs.8,404/ paid as initial deposit and charges for obtaining land line connection to the property at Gangasamudra Village which stand in the name of Thimmappa, again shall have to be deducted, because there is no documents which connects that it is the direct investment on the part of the accused. So the calculation goes as under. The net total expenditure comes to Rs.54,28,052 Rs.8,404 = Rs.54,19,648/.
121. Coming to another property at site No.178 of Nagarabhavi 2nd Stage, Bengaluru, which was purchased by Thimmappa, this 198 Spl.C.C. No.244/2010 accused claims to have paid stamp and registration charges in a sum of Rs.95,615/. Even according to me this amount shall have to be deducted. Hence, the net expenditure comes to Rs.54,19,648 - Rs.95,615 = Rs.53,24,033/.
122. Likewise, a sum of Rs.14,600/ shall have to be deducted which according to the Investigating Officer was the stamp duty and registration charges paid to site No.1323, carved out of Sy.No.27, Harappanahalli Village, Jigani Hobli, Anekal Taluk, because the property stood in the name of Thimmappa. Hence, the net expenditure comes to Rs.53,24,033 - Rs.14,600 = Rs.53,09,433/.
199 Spl.C.C. No.244/2010
123. Likewise, stamp and registration charges paid in respect of property standing in the name of Thimmappa and Eramma in different amounts shall have to be deducted from the net expenditure value i.e., sum of Rs.5,400/, Rs.1,400/, Rs.8,624/, Rs.1,010/, Rs.4,918/, Rs.5,626/ and Rs.3,729/, in total Rs.30,707/ shall have to be deducted from Rs.53,09,433/. Hence, out of the net expenditure of Rs.53,09,433 Rs.30,707 = Rs.52,78,726/.
124. It is the evidence of PW10 that a sum of Rs.26,100/ was claimed to have been spent by the accused to rare Mudol hound. There is no documents but for the one referred by the 200 Spl.C.C. No.244/2010 Investigating Officer at Ex.P.82. Nevertheless this amount referred by the Investigating Officer cannot be the expenditure of that pet for the whole check period. Likewise there is no material to form an opinion that for the entire check period this dog was with the accused family. Because the life expectancy of the dog cannot stretch over 15 years. Hence, by taking judicial notice of the same, a sum of Rs.15,000/ is considered as the maintenance expenses of the dog. Hence, Rs.11,100/ shall have to be deducted from Rs.52,78,726 Rs.11,100 = Rs.52,67,626/.
125. A sum of Rs.27,122.15 has to be deducted from the total value of the 201 Spl.C.C. No.244/2010 expenditure, because the said loan was obtained in the name of Thimmappa. Hence, the net expenditure calculation goes as Rs.52,67,626 Rs.27,122.15 = Rs.52,40,503.85.
126. The Investigating Officer especially PW10 seems to have committed similar mistake in also taking into account the loan amount repaid by Thimmappa in a total sum of Rs.44,240.16. In this regard this amount shall have to be deducted from Rs.52,40,503.85. Hence, the net expenditure comes to Rs.52,40,503.85 Rs.44,240.16 = Rs.51,96,263.69.
127. Coming to the tractor loan repaid by Eramma, it is the dubious claim of the 202 Spl.C.C. No.244/2010 prosecution that even this amount has been spent by the accused himself. According to me in the cross examination of PW10, he makes it very clear that when he undertook the further investigation of this case, his predecessor PW9 had collected most of the documents in respect of initial investigation undertaken by him. So he is not aware of the fact that whether it is the accused or Eramma has repaid the loan. There is no connecting documents to show that on behalf of his mother Eramma, accused has repaid this Tractor loan. Hence, the sum of Rs.27,560/ shall have to be deducted from Rs.51,96,263.69. Hence, the net expenditure comes to Rs.51,96,263.69 Rs.27,560 = Rs.51,68,703.69.
203 Spl.C.C. No.244/2010
128. Coming to a sum of Rs.61,698/ spent by the accused towards hiring charges to Minerva Tours and Travels and in this regard Ex.P.102 is placed. But this Court is not convinced as to in respect of which particular period this amount was spent, whether accused has claimed transfer allowance or petrol allowance, and if he has claimed, this can only amount to income. So Rs.61,698/ requires to be deducted from the total expenditure. Hence, the net expenditure comes to Rs.51,68,703.69 Rs.61,698 = Rs.51,07,005.69.
129. Coming to the crucial aspect of claim of PW10 that, this accused and his family members has spent towards food and 204 Spl.C.C. No.244/2010 invisible expenses which comes to Rs.17,85,694/. This calculation is as it is adopted by this witness completely on the basis of evidence tendered by PW20. This witness by name Jayadeva Prakash, as I have discussed earlier has relied upon 2004 2005 National Sample Survey for Karnataka, Consumer Price Index and for the check period. It is his ocular evidence that Rs.17,85,694/ was the total food expenditure. In this regard I would like to examine Ex.P.103 itself.
130. In this document, when it is glanced through, it looks like a duly filled format. This PW20 claims to have considered the total salary income of the accused furnished by the Investigating Officer and so far as 205 Spl.C.C. No.244/2010 invisible non verifiable items under the calculation which he has considered are products like cereals, pulses, milk, milk products, vegetables, fruits and nuts, Sugar and Salt, spices, beverages which included cool drinks, mineral water etc., Non food items like entertainment including cinema, picnic, personal care items, toiletries, house hold articles, footwear, domestic services like domestic servant, tailoring charges, water charges, grinding charges, legal expenses, professional charges paid to priest, medical expenses etc., This Ex.P.103 by itself cannot convey any exact meaning as to what could have been the exact expenses on the part of the accused and his family members. But coming to the cross examination, so far as 206 Spl.C.C. No.244/2010 this evidence and Ex.P.103 is concerned, cat has come out of the basket. This gentlemen goes to the extent of admitting that as the requisition letter sent by ADGP did not contained any inputs as to accused and his family consists of how many members, out of them who were adults, infants, gender and whether they are vegetarian or non vegetarian. According to this person he is unable to assess anything as to what was the exact expenses of the accused when he was a bachelor, then what was the family expenditure when he got married and what was the expenditure when his four children were born. The specific period which wife and kid stayed with the maternal home of Smt.Gowramma for the post pregnancy 207 Spl.C.C. No.244/2010 period shall have to be deducted. In respect of child care there is no clarity. In respect of invisible items there are many double entries like what is found in Ex.P.2 to P.5, when search and raid of the accused house took place. There is already an assessment in respect of value of house hold articles, again same has been considered twice here. So to sumup a sum of Rs.17,85,694/ projected by PW20 is only on approximate basis and nothing else. This evidence was badly attacked by the accused by contending that PW20 cannot be considered as an Expert of Experts. Likewise under Sec.45 of the Indian Evidence Act, Ex.P.103 cannot be the Report submitted by an Expert, so also the evidence of PW20. According to me I find substantial 208 Spl.C.C. No.244/2010 force and strength in this argument of the accused counsel, because nowhere it is the case of the prosecution that PW20 has got a specialized skills to assess the food and invisible items. Because the check period span over 31 years and if this PW20 were to act on the inputs given by the ADGP, without knowing as to how many family members accused had, then definitely according to me this assessment will go wrong. Now as the accused himself has not lead any oral or documentary evidence in this regard, he is only separating the husk from the rice. If this type of chromatography is under taken, Court will not be in a position to assess what is the exact expenses incurred by the accused towards food and invisible items. 209 Spl.C.C. No.244/2010
131. Even this Court is not inclined to accept Ex.P.103 on its face value, because PW20 himself is not an Expert. In this regard I rely upon the decision reported in (2009) 9 SCC 709 in Rameshchandra Agrawal vs. Regency Hospital Limited and others, wherein the Hon'ble Apex Court has held has that: "Evidence Act, 1872 - S.45 -
Expert evidence - Admissibility - Requirements - Evidence of expert is admissible when (i) expert is heard, (ii) he must be within a recognised field of expertise, (iii) his evidence must be based on reliable principles, and (iv) he must be qualified in that discipline - Reiterated, without examining expert as a witness, no reliance can be placed on his opinion alone".
132. In the instant case nothing of these 210 Spl.C.C. No.244/2010 requirements are met by PW20. Under such circumstances, considering Rs.17,85,694/ may not sound realistic. Moreover, this Court is unable to gauge anything either less or more. So also not in a position to accept this amount, hence, this Court intends to consider the food and invisible items as only Rs.13,00,000/, also considering the fact that there are double entries in respect of house hold articles. Hence, a sum of Rs.4,85,694/ has to be deducted. So the net expenditure comes to Rs.51,07,005.69 Rs.4,85,694 = Rs.46,21,311.69.
133. Coming to the question of accused valuing Rs.6,37,472/ for purchase of gold 211 Spl.C.C. No.244/2010 and silver ornaments and this witness has used the concept of benami transaction. But these aspects have not at all been proved. It is at the cost of repetition I would like to submit that benami transfer or transaction means the transaction or who acts only as an ostensible owner in place of a real owner, and name is not disclosed. The real owner in such case may be called the beneficiary and the ostensible owner are the benamidars. In the present case the concept of benami transaction has no relevance at all, because in this direction no investigation has been led. So according to me if this Court were to consider the total value of gold and silver, the only available document is Ex.P.2 and the evidences of PW2, PW3 and PW9. Admittedly 212 Spl.C.C. No.244/2010 two panchas to Ex.P.2 to P.4 who are the public servants and Government Staff from the KGID Department have consistently given evidence that they have no special skills in this field to assess the value of gold and silver articles. Even the appraiser who helped the Lokayukta Police in the raid has not been examined. His statement is not before the Court. Even to come to the conclusion that they have considered the approximate value of gold and silver as on the date of raid to which there are no documents at all. Other than that Ex.P.2 is silent in respect of customary presents received by the accused and his wife either at the time of their marriage, naming ceremony of their children, birthday bash of their children. So in all 213 Spl.C.C. No.244/2010 fairness instead of Rs.6,37,472/, I deem it proper to consider it as Rs.4,00,000/ only as there may be family presents given to accused and his family members on different family functions and occasions. So the net expenditure is Rs.46,21,311.69 - Rs.2,37,472/ = Rs.43,83,839.69.
134. Likewise, it is also the evidence of PW10 that a sum of Rs.3,51,800/ was the chit amount paid to one A.V. Jayappa and it is the benami transaction. This Court is not inclined to accept this expenditure, because this benami transaction is not proved. In this regard, both PW9 and PW10 in their respective cross examination admit the same. 214 Spl.C.C. No.244/2010 Hence, this amount has to be deducted from Rs.43,83,839.69. Hence, the total net expenditure comes to Rs.43,83,839.69 Rs.3,51,800 = Rs.40,32,039.69. According to me this is an approximate total expenditure of the accused and his family member for the check period. According to me so long as the inputs or the calculation arrived at by the Investigation Officers are not on sound basis, till then any calculation furnished in this regard can only amount to guess work. Now the question that would arise is that, can this Court only on the basis of guess work can convict the accused, when it is the law that prosecution shall have to prove the guilt beyond all reasonable doubt. Under these above discussions, this Court 215 Spl.C.C. No.244/2010 considers the total family expenditure of the accused to be at Rs.40,32,039.69. INCOME:
135. Coming to the crucial aspect of the subject matter, according to the prosecution the lawful income of the accused was far below the total value of assets and expenditure. Hence, the resultant factor was that this accused alleged to have amassed illgotten wealth. As per the calculation of the prosecution, the lawful income of the accused and his family members stood at Rs.54,82,336.74. Quite naturally in a disproportionate assets, if at all any charge sheet has to be filed for the offences under Sec.13(1)(e) and (d) r/w. 13(2) of the 216 Spl.C.C. No.244/2010 Prevention of Corruption Act 1988 (Unamended), the lawful income must be on a lower scale. When such charge sheet are presented, only trumpcard for the accused is to contend that most part of his income are not properly considered by the Investigating Officer. Of course, in the present case, accused main limb of argument was his entire agricultural and horticultural income for the entire check period have not been well considered. So also when his wife was gainfully employed, her salary for a specific period was not considered, so also rent received by his wife Gowramma.
136. I have already made it very clear that so far as benami transaction is concerned, public servant, his wife and children does not 217 Spl.C.C. No.244/2010 fall within that purview. Any acquisition made by the public servant in the name of his wife and children cannot be considered as benami transaction. In the instant case, the mistake which the PW9 and PW10 seems to have committed are that they have misunderstood these aspects and seem to be at cross roads, because they could not get much assistance from the accused by way of schedule information. But according to me this should not be an excuse to conduct the investigation as per law. Now the evidence placed by prosecution in respect of agricultural and horticultural income cannot touch the conscious of this court, because they have to give break ups for the entire check period. When we go through the 218 Spl.C.C. No.244/2010 evidence of PW16, according to him he has shown Rs.1,38,118/ is the agricultural income in respect of Sy.No.71/5, Rs.38,219/ in respect of Sy.No.71/7, Rs.1,20,435/ in respect of Sy.No.92/3 and Rs.1,22,005/ in respect of Sy.No.42. But in the cross examination there is an admission that income would differ from irrigated land and rain fed land and the difference may vary from 20% to 30%. So looked into from any angle Ex.P.121 cannot be a comprehensive one.
137. Coming to the evidence of PW17 who is a Deputy Director of Horticulture, according to him he also issued Ex.P.122 to show the total horticulture net income from above said agricultural land which are situated at 219 Spl.C.C. No.244/2010 Vishwanathahalli village, Gowdihalli Village and Gangasamudra Village. But in the cross examination we can find lot of guess work done by this witness, only on trial and error method. So if we go by Ex.P.122, the version of PW10 has to be accepted. There is nothing on record which show that for how many years in the check period that amount has been considered, what was the rain fed extent of land, which extent of land were under irrigation, and how many bore well water were used, expenses towards cultivation of these works, his evidence is silent.
138. In order to rebut the evidence of the prosecution, so far as PWs 16 and 17 are concerned, who have given Ex.P.121, 220 Spl.C.C. No.244/2010 accused by examining DW1, got marked Ex.D.1 to D.6. These certificates are in respect of different extent of Sy.Nos. of lands situated at Gowdihalli Village, Gangasamudra Village, and also one at Vishwanathahalli. Both PW16 and PW17 had given breakups of both agricultural and horticultural income of accused and his family members which when considered in the light of practical difficulties faced by any ordinary agriculturist, and that income cannot be probable or pragmatic. But when Ex.D.1 to D.6 are gone through there is a clear breakups as to so far as irrigated lands are concerned, what is their annual income and if it is rain fed lands, what could be the annual income. Ex.D.1 also speaks of the 221 Spl.C.C. No.244/2010 total net income in respect of Sy.No.92/3 from the year 198283 in a sum of Rs.36,58,823/, in respect of Sy.No.42 of Vishwanathahalli it is Rs.76,82,038/, in respect of Sy.No.28/2B of Kalkunte Village it is Rs.2,74,483/, in respect of Sy.No.71/5 of Gangasamudra Village it is Rs.3,34,846/ and lastly in respect of Sy.No.71/7 of same village in a total sum of Rs.2,39,665/. Of course, in the effective cross examination done to this witness by the learned Public Prosecutor, even though there were questions in respect of soil testing and also nitrogen gaseous contents present in the earth/ soil, but this DW1 who claims to be an Expert in that field denied those suggestions.
222 Spl.C.C. No.244/2010
139. A question would arise as to whether DW1 in the given circumstances of the case can be considered as an Expert. I am of the firm opinion that yardstick which this Court has applied to appreciate the evidence of PW20 - Jayadeva Prakash shall have to be applied to this witness's oral evidence also. If that analysis is taken into consideration, Ex.D.1 to D.6 stands on a better platform when compared to Ex.P.121. To sumup the evidence of DW1, Ex.D.1 to D.6 has clearly shown the fact that PW9 - Prasanna V. Raju and PW10 - K.C. Lakshminarayana have committed grave mistake in not properly appreciating and considering the annual income first and total net income for the check period both in respect of agricultural 223 Spl.C.C. No.244/2010 and horticultural income.
140. When PW9 - Prasanna V. Raju was cross examined touching these aspects he completely surrendered himself by giving a candid admission, some of which are extracted as under: "It is true I have secured Annual property returns (APRs) of accused. It is true during the check period the APRs disclosed the agriculture income of accused to an extent of Rs.62,81,209/ ....... It is true that with regard to APRs I have not examined the official superiors of accused. It is true the accused hails from an agricultural family. It is true accused is the only son to his parents..... It is true except collecting documents I have not done any further investigation in the case. It is true during the course of mahazar I have not mentioned the details of each 224 Spl.C.C. No.244/2010 item and cross verification".
141. So when this is the admission and quality of evidence given by one of the Investigating Officer, who is also responsible for setting the criminal law in motion, nothing more is required to be discussed further. Under such circumstance, straight away a sum of Rs.62,81,209/ shall have to be added to the total income of the accused and calculation goes as Rs.54,82,336.74 + Rs.62,81,209/ = Rs.1,17,63,545.74.
142. In the cross examination of PW10 also this Investigating Officer who completed most part of the investigation had no any separate information than one furnished by PW16 and 225 Spl.C.C. No.244/2010 PW17 touching both agricultural and horticultural income. It is made very clear that I have not given deduction to the agricultural and horticultural income considered by the Investigating Officer from the total value of income just referred above, because they make a very little difference in respect of total value of the lawful income of the accused and his family members.
143. Coming to the evidence of PW19 by name U.D. Krishnakumar who was also Dy.S.P., who of course, received the sanction order with Final Report and submitted the Charge Sheet. But one sorry state of affairs is that when he took further investigation of the matter, already ADGP had sent the Final Report with enclosures to the appropriate 226 Spl.C.C. No.244/2010 authority of the accused seeking Sanction Order under Sec.19 of the Prevention of Corruption Act. In the cross examination this PW19 also admits that he was not provided with an opportunity to look into the statements of various witnesses recorded by PW9 and PW10 in this case. Ultimately according to him he was only directed to affix his signature on the Charge Sheet for the purpose of submitting the same before this Court and that admission is extracted as below: " ದನಕಸಕ 19.04.2010 ರಸದತ ದಖರವಷಕರಖರವಪಣಕ ಪತಪ ಸಲಲಸತವಸತಖ ಹಖಚತಚವರ ಪಲವಸಸ ಮಹಕ ನರವಕಕಕರತ ನದಖವರಶನ ನವಡದದರಸದ ನಕನತ ದಖರವಷಕರಖರವಪಣಕ ಪತಪವನತನ ಸಲಲಸದಖದವನಖ ಎಸದರಖ ಸರ. ನಕನತ ತನಖಕ ಕಕಲದಲಲ ಆರಖರವಪಯನತನ ವಚಕರಣಖಗಖ ಒಳಪಡಸರಲಲಲ ಎಸದರಖ ಸರ" .
144. So this only demonstrate before the Court that so far as PW19 is concerned, 227 Spl.C.C. No.244/2010 there was sheer non application of mind when he submitted the Charge Sheet before the Court. I am pressing this aspect very hard because had PW19 were to have looked into the income aspect of the accused, definitely he would have taken into consideration the total agricultural and horticultural income of the accused and his family by also considering Ex.D.1 to D.6. But sadly this approach has not been adopted by him for the reasons best known.
145. Both PW9 and PW10 have collected the documents in respect of various items of assets, expenditure and income and it is the admission of PW10 in his crossexamination that most part of their investigation was surrounded around schedule information 228 Spl.C.C. No.244/2010 and documents furnished by the accused. In this regard a word or two has to be discussed as to how these two Investigating Officers have considered APRs and ITRs. In fact there is not much of a discussion or evidence given either by PW9 and PW10 or so to say PW19 by name U.D.Krishna Kumar, and according to me both pieces of documents i.e., APRs and ITRs will play a major role. At the same time when these Investigating Officers are provided with copies of APRs and ITRs including that of Gowramma, who was the wife of the accused working with M/s.MCI Chits Private Limited, but none of these Investigating Officers have considered them very seriously. In this regard it is apt to mention that when accused himself has 229 Spl.C.C. No.244/2010 declared in his APRs that his total agricultural and horticultural income was Rs.62,81,209/, according to me in all fairness he should have held separate investigation in this regard. If at all PW9 has given admission in this regard in his cross examination it is because, the accused himself has declared in the Annual Property Returns. So some of these aspects have not at all been taken seriously into consideration by these Investigating Officers.
146. As Gowramma was gainfully employed and to that effect it is declared in the ITRs of Gowramma, but why both PW9 and PW10 have not considered these aspects is not convincingly explained by them. Under such circumstances according to me a sum of 230 Spl.C.C. No.244/2010 Rs.7,04,000/ which being the salary and other perquisites received by Gowramma becomes the income of the accused for the check period. So Rs.7,04,000/ will have to be added to the total net income of Rs.1,17,63,545.74. Hence, the total net income comes to Rs.1,17,63,545.74 + Rs.7,04,000/ = Rs.1,24,67,545.74. In fact both PW9 and PW10 have admitted that they ought to have considered these amount as income of the accused.
147. There is a strange evidence given by PW9 that both accused and his wife for some specific period in the check period had received rents in respect of demised premises. But this Court is unable to 231 Spl.C.C. No.244/2010 consider any specific amount either towards earnest money deposit or as a rent, because there is no evidence in this direction and accused has not furnished any clarity. There are some minor amounts which both accused and his wife and daughters including son have received interest on their respective SB accounts with various banks either at Bengaluru or at Chitradurga, even some of which have not been considered as the income of the accused. If I revert back on my preceding discussion in respect of how well the investigation has been under taken, I think it is not proper. The Hon'ble High Court has laid guidelines as to how in a case of disproportionate assets, investigation should go on. In this regard I rely upon a 232 Spl.C.C. No.244/2010 decision reported in LAWS (MAD) 2007 (12) 547 in R. Kannappan and K. Chandrasekaran vs. State by Dy.S.P., wherein the Hon'ble High Court has held that: "In a case of this nature, where allegations are made against the public servant that he had assets disproportionate to the known sources of his income, the duty of the investigating Officer is as follows:
(i) The Investigating Officer should assess the value of the assets of the public servant immediately prior to the check period with relevance to the tax Returns of the concerned person and also loans and other Incomes available to the person and also about the liability of the person prior to the check period.
(ii) the actual income during the check period and the 233 Spl.C.C. No.244/2010 expenditure actually incurred by the public servant should be calculated without any inflation and on a reasonable basis.
(iii) the total income during the check period and assets prior to the check period must be taken together as the total assets of the public servant from which the actual expenditure and amounts saved either by cash or by properties must be deducted from the total amount and see whether there is much disproportion to the known sources of income of the public servant and the assets on his hand. While making the calculation regarding the value of the properties and expenditure a reasonable margin has to be given this way or that way to find out the truth. Such kind of procedure to be adopted only by an unbiased Investigating Officer. There should be no suppression of income or under estimation of the income of the accused or inflation of the expenditure or 234 Spl.C.C. No.244/2010 inflation of the assets of the accused.
(iv) the Investigating Officer should not suppress any of the income, by way of loan or gift while considering the income of the public servant.
(v) Similarly after finding out that there is any disproportionate wealth in the hands of the public servant beyond his known sources of income, the accused must be given an opportunity to explain the same. Failure to give an opportunity to the accused to explain the same is fatal to the prosecution".
148. So the present case investigation, according to me, most part of it is ended up in collection of documents from various departments and institutions and nothing else. Even in respect of educational expenses incurred by accused in respect of his four 235 Spl.C.C. No.244/2010 children, there is not much of assistance, because limited inputs provided by respective schools and colleges are conspicuously silent as to whether that also includes residential school charges, private tuitions, tutorials, crash course classes etc., Moreover, how the educational institutions has assessed the value of educational expenses i.e., to say it is only in respect of what is paid to their institution as admission and tuition fees or it also includes purchase of text books, note books, stationary etc., Further no clarity is available as to the amount spent towards excursions, purchase of uniforms, undertaking educational excursion etc., If investigation goes on only on the basis of a guess work, then according to me, any type 236 Spl.C.C. No.244/2010 of evidence tendered by the prosecution cannot be considered as the legal evidence. In fact the learned defence counsel while addressing arguments kept on highlighting the fact that Captain Singh's case is a land mark judgment wherein the opinion expressed by the Investigating Officer cannot be a legal evidence and on that basis submitting the charge sheet in a disproportionate asset cases will be improper. I completely agree with this arguments of the learned defence counsel.
149. Equally, from the prosecution side, the learned Public Prosecutor made a valiant effort to show case their contention by projecting that when the economic/fiscal capacity of the accused is considered, he has 237 Spl.C.C. No.244/2010 outrightly involved in benami transactions and more so made major investments in the name of his parents. But the main hitch which they faced was that there was no connecting documents which showed before the Court that even though sale deeds in respect of sites and agricultural lands stood in the name of Thimmappa and Eramma, they were on account of sale consideration paid by this accused - Ajjappa. So there cannot be any presumption in this aspect. According to me this is a major loop hole where the prosecution was unable to convince this Court.
150. As there is also allegations made against this accused that he committed criminal misconduct under Sec.13(2) of the Prevention 238 Spl.C.C. No.244/2010 of Corruption Act, 1988 that also requires substantiation. Merely because accused has purchased many properties both movable and immovable which according to the prosecution in different persons name, that cannot be branded as criminal misconduct, because these allegations requires proof beyond reasonable doubt. Moreover, in the series of APRs submitted by the accused, this Court has not come across any such action initiated by the parental department in respect of accused either declaring incorrectly or falsely. If according to the prosecution, accused has made investment in the name of parents, definitely during the long span of 31 years, which is the check period, definitely this accused would have got 239 Spl.C.C. No.244/2010 caught with the parental department. Every year this accused cannot go scotfree. Under such circumstances, according to me when this Court finds no illegal acquisition of properties, it cannot simply blame that accused has involved in criminal misconduct. Moreover, these aspects requires proof which Court should accept. Lastly to sum up the over all investigation and also the evidence placed are not very much convincing. Moreover, it has not shown before the Court that this is a fit case where accused has to be convicted for the alleged offences. In this regard I rely upon the following decision - LAWS (KER) 2010 (11) 459 in Natesan T.G. vs. Dy.S.P., Vigilance and Anti Corruption Bureau, wherein the Hon'ble High Court has 240 Spl.C.C. No.244/2010 held that: "to establish offence under Sec.13(1)(e) of the PC Act, it is not enough if prosecution merely proves that the wife of a public servant or any other person was in possession of pecuniary resources or property during the relevant period. It must be further alleged and proved that such possession was 'on his behalf' i.e., in the interest of the public servant or as his representative. If there is no such allegation or proof that the prosecution of pecuniary resources or property by his wife was on behalf of the public servant, he cannot be convicted for the above said offence".
151. Another decision which I have quoted earlier i.e., Rameshchandra Agarwal vs. Regency Hospital Pvt Ltd., and others, wherein the Hon'ble Apex Court has held that: 241 Spl.C.C. No.244/2010 "Evidence Act, 1872 - Secs.64, 62, 67 and 115 - proof of a document - Held, a document is proved by examining its author -
A document is therefore not admissible unless it is proved".
152. So far as the principles enunciated in this case comes to the aid of accused, because most of the documents collected by both PW9 and PW10 were not at all proved because their authors were not examined at all. Likewise, no efforts were made to secure those witnesses before the Court for the purpose of examining nor proving the respective documents. Under these circumstances, this Court is of the firm opinion that there is no disproportionate assets amassed by the accused, because for the following calculation.
242 Spl.C.C. No.244/2010
Description Amount Total value of Assets Rs.51,35,739.30 Total value of Rs.40,32,039.69 Expenditure Total Rs.91,67,778.99 Total value of Income Rs.1,24,67,545.74
153. So the lawful income total worth is far more than the value of total value of assets and expenditure. In fact accused's total value of income is on the + side. So there cannot be any disproportionate asset. Under these circumstances accused has not committed the alleged offences as shown in the charge sheet. For these reasons I have answered this point in the Negative.
POINT NO.3:
154. This Court having gone through both oral and documentary evidence of the 243 Spl.C.C. No.244/2010 prosecution witnesses as well as accused, has come across major loop holes especially when prosecution canvassed its contention in respect of benami transaction, who can be the family member of the accused in the given circumstance of the case, acquisition of properties in the name of his parents etc., When it came to the question on expenditure, some of the grey areas like educational expenses of all the children of accused, independent avocation of wife of accused - Gowramma and her monetary transaction, purchasing property in the name of third person by name Jayappa, they are not at all been well answered and proved beyond doubt. Coming to the aspect of income there is no clarity found in the respective evidence 244 Spl.C.C. No.244/2010 of PW1, PW9, PW10 and PW19 as to according to them which is the starting point for computing these incomes, whether is it only the first day of the check period or how they have considered the properties i.e., assets and income of accused from the day till the commencement of the check period or otherwise. So long as this starting point is not well explained, calculation definitely cannot go right.
155. Likewise, the accused could have been more daringly enough to admit in respect of his assets and expenditure, but focused only in respect of his income. Other than that he also could have got himself examined as one of the defence witnesses, which he has not done it. Nevertheless, what the Court 245 Spl.C.C. No.244/2010 requires is a legal evidence which must be both cohesive and cogent. In the instant case even though there are some of the aspects the prosecution able to touch these issues, the same has not been substantiated. For considering the APRs and ITRs of the public servant/accused, it is also required that the Investigating Officer should possess special skills to some extent apart from collecting documents and should hold investigation in that particular direction, but that in this case has not taken place. So the available materials have not convinced this Court that accused has to be convicted as he has committed the alleged offences. If I say that benefit of doubt requires to be extended to the accused, it may not be wrong. Hence, 246 Spl.C.C. No.244/2010 having found demerit, I proceed to pass the following:
ORDER Acting under Sec.248(1) of the Cr.P.C., the accused is hereby acquitted of the alleged offences punishable under Secs.13(1)(e) r/w. Sec.13(2) of the Prevention of Corruption Act,1988.
The bail bond and surety bond of the accused shall stand hereby cancelled.
(Dictated to the Stenographer, transcripted by her and then corrected and pronounced by me in the open Court on this the 24th DAY OF JANUARY 2024).
(S.V.SRIKANTH), C/c. LXXVIII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.
247 Spl.C.C. No.244/2010
ANNEXURE
LIST OF WITNESSES EXAMINED FOR
PROSECUTION:
PW1 Irshad Ahmed Khan
PW2 Usha
PW3 Nagaraj
PW4 T.N. Ravi Prakash
PW5 B. Prasanna Kumar
PW6 Vishwanath
PW7 Sridhara B.S.
PW8 G. Mudalaiah
PW9 Prasanna V. Raju
PW10 K.C. Lakshminarayana
PW11 Basavaraj Bheemappa Kotumachagi PW12 Dr. Gangadhar PW13 Basavaraju PW14 N.M. Nagaraju PW15 H. Hanumanthappa PW16 Y. Sridhar PW17 Devaraju K.R. PW18 Devadas Kamath PW19 U.D. Krishnakumar PW20 Jayadeva Prakash 248 Spl.C.C. No.244/2010 LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Source Report
Ex.P.1(a) Signature of PW1
Ex.P.2 House Mahazar
Ex.P.2(a) Signature of PW2
Ex.P.2(b) Signature of PW3
Ex.P.2(c) Signature of PW9
Ex.P.3 Office Mahazar
Ex.P.3(a) Signature of PW2
Ex.P.3(b) Signature of PW3
Ex.P.3(c) Signature of PW9
Ex.P.4 Bank Locker Mahazar
Ex.P.4(a) Signature of PW4
Ex.P.4(b) Signature of PW9
Ex.P.5 Sanction Order
Ex.P.5(a) Signature of PW4
Ex.P.6 Valuation Report
Ex.P.6(a) Signature of PW5
Ex.P.7 Copy of Note Sheet
Ex.P.8 Covering Letter
Ex.P.9 & Building Valuation Reports
Ex.P.10
Ex.P.10(a) Signature of PW7
Ex.P.11 FIR
249 Spl.C.C. No.244/2010
Ex.P.12 Search Warrant of house
Ex.P.12(a) Signature of accused Ex.P.13 Search warrant of office of accused Ex.P.14 & Two letters with share certificates Ex.P.15 particulars of site, Assessment Extract, EC, copy of Sale Deed etc., Ex.P.16 EC and copy of Sale Deed pertaining to site No.14 from SubRegistrar, Chitradurga Ex.P.17 EC and copy of Sale Deed pertaining to site No.43 and 44 from Sub Registrar, Hosadurga Ex.P.18 Assessment Extract from Hosadurga Ex.P.19 Another assessment extract, EC and copy of Sale Deed from Hosadurga Municipality Ex.P.20 EC and copy of Sale Deed of Sy.No.28/2B of Chitradurga Ex.P.21 Attested copies of Possession Certificate, Sale Certificate, Endorsement, Death Certificate representation, Photo attestation, Joint Affidavit, Indemnity Bond from BDA, Bengaluru Ex.P.22 EC, copy of Sale Deed pertaining to Khatha No.889/867 Ex.P.23 Copy of Sale Deed pertaining to site No.21 of Chandra Layout Ex.P.24 Copy of Sale Deed of site No.1323 of Anekal Talu 250 Spl.C.C. No.244/2010 Ex.P.25 Loan particulars of Gowramma from Onake Obavva CoOp Bank Ltd., Ex.P.26 Bank Statement of Accused Ex.P.27 Bank particulars of Accused and Thimmappa Ex.P.28 Bank Particulars of Gowramma Ex.P.29 Bank particulars of accused Ex.P.30 Bank Particulars of Gowramma from ING Vysya Bank, Chitradurga Ex.P.31 Loan particulars of accused from SBM, Holalkere Ex.P.32 Bank Deposit particulars from Syndicate Bank Ex.P.33 Account particulars of accused from Vijaya Bank, Ex.P.34 Membership particulars of accused and his wife from Merchants Souharda Bank, Chitradurga Ex.P.35 Share particulars of Eramma from Coconut growers Ex.P.36 Particulars of water connection from BWSSB Ex.P.37 & Particulars of electric connection Ex.P.38 from BESCOM Ex.P.39 to Membership particulars of accused Ex.P.43 Ex.P.44 & Telephone Details Ex.P.45 Ex.P.46 Membership details of Gowramma 251 Spl.C.C. No.244/2010 from Anu Solar Power Ex.P.47 Gas connection details Ex.P.48 & Particulars of LIC policies Ex.P.49 Ex.P.50 Khatha extract and tax particulars of ARO, BBMP, Chandra Layout. Ex.P.51 Particulars of water connection from BWSSB Ex.P.52 Particulars of tractor from RTO, Chitradurga Ex.P.53 Some more particulars of tractor Ex.P.53(a) Signature of PW11 Ex.P.54 & Particulars of electricity demand and Ex.P.55 payment Ex.P.56 & Mobile recharge details Ex.P.57 Ex.P.58 to Education details of daughter -
Ex.P.63 Sowmya Ex.P.64 to Education details of daughter - Ex.P.68 Sahana Ex.P.69 to Education details of daughter - Ex.P.74 Soujanya
Ex.P.75 to Education details of son - Janardhan Ex.P.80 Yadav Ex.P.81 Letter of Krishna Chandra Convention Hall Ex.P.82 Details of cost of maintaining Mudhol dog Ex.P.83 Details of purchase of spectacles 252 Spl.C.C. No.244/2010 Ex.P.84 Shopping details of daughters of accused Ex.P.85 Particulars of associate card from NIG Cricket Club Ex.P.86 DL particulars from RTO, Bengaluru Ex.P.87 to Details of cost of utilisation of Gas Ex.P.89 cylinder from Sree Maruthi Gas and Sai Mangala Enterprises Ex.P.90 Details of cost of utilisation of Gas cylinder from M/s. Bhavani Bharath Gas Distributors Ex.P.91 Details of cancard from Canara Bank Ex.P.92 & Travel particulars of Gowramma from Ex.P.93 Air Pushpak Ex.P.94 DD Particulars Ex.P.95 Details of DD from TTD, Thirupathi Ex.P.96 Letter from Narayana Hrudayalaya regarding payment for heart check up.
Ex.P.97 Housing loan particulars from DHFL Ex.P.98 Housing loan particulars from Canara Bank Ex.P.99 Loan particulars from PLD Bank, Holalkere Ex.P.100 Debit Card details from ING Vysya Bank Ex.P.101 Debit Card details from Corporation Bank Ex.P.102 Travelling details from Minerva Tours 253 Spl.C.C. No.244/2010 and Travels Pvt Ltd., Ex.P.103 Letter from Karnataka Lokayukta regarding food and non food expenditure Ex.P.103(a) Signature of PW9 Ex.P.104 Particulars of bills from Abharana Jewellers Ex.P.104(a) Signature of PW18 Ex.P.105 Statement of accounts from Pathi Gold Jewellers Ex.P.106 Chit particulars from MCI Chits Limited Ex.P.107 to Salary particulars of accused Ex.P.118 Ex.P.119 Copy of notification under endorsement Ex.P.120 Statement of Income and Expenditure of land bearing Sy.No.28/2B Ex.P.121 Statement of Income and Expenditure from Assistant Director, Holalkere Ex.P.121(a) Signature of PW16 Ex.P. 122 Statement of Income and Expenditure from Senior Assistant Director Horticulture, Holalkere Ex.P.122(a) Signature of PW17 Ex.P.123 Annual Property Returns of accused Ex.P.124 Copy of Income Tax Returns 254 Spl.C.C. No.244/2010 Ex.P.125 Schedules No.17 to 23 Ex.P. 126 Letter of accused Ex.P.127 Order of Superintendent of Police, Karnataka Lokayukta Ex.P.127(a) Signature of PW10 Ex.P.128 Documents of Eramma Ex.P.128(a) Signature of PW10 Ex.P.129 Further investigation order from Superintendent of Police, Karnataka Lokayukta Ex.P.129(a) Signature of PW19 Ex.P.130 Bank Account Details of accused from Merchants Souhardha Co operative Bank, Chitradurga Ex.P.131 Bank Account Details of accused from Canara Bank Ex.P.132 Documents towards educational expenses of daughter Kum. Soujanya Ex.P.133 Bank statement of accused from ING Vysya Bank, Chitradurga Ex.P.134 Documents showing purchase of land bearing Sy.No.92/3 by accused Ex.P.135 Documents pertaining to Sy.No.42 of Vishwanathahalli Village Ex.P.136 Documents pertaining to Sy.No.73/38 of Gangasamudra Village Ex.P.137 Documents showing purchase of site No.21 and construction in Chandra 255 Spl.C.C. No.244/2010 Layout Ex.P.138 Documents pertaining to Sy.No.46/3 of Vishwanathahalli Village, Holalkere Ex.P.139 Account details pertaining to SBM, Bengaluru Ex.P.140 Account details pertaining to Canara Bank, Bengaluru Ex.P.141 Account details pertaining to ING Vysya Bank, Chitradurga Ex.P.142 Documents showing share amount in membership in Onake Obavva Mahila Cooperative Bank Ltd., Chitradurga Ex.P.143 Documents showing purchase of tractor from Sri. Balaji Automobiles, Chitradurga Ex.P.144 Documents showing purchase of tractor, trailor and Cultivator from Shiva Naradamuni Agro Trailers, Chitradurga Ex.P.145 Documents showing payment of fees to priest towards performing holy rituals Ex.P.146 Documents showing payment towards Catering Ex.P.147 Documents showing payment towards purchase of Gold and Silver Ornaments Ex.P.148 Documents in respect of land in 256 Spl.C.C. No.244/2010 Sy.No.28/2B, Kalkunte village, Chitradurga Taluk Ex.P.149 Documents in respect of land in Sy.No.71/5, Gangasamudra village, Holalkere Taluk Ex.P.150 Letter of ADGP to PW19 Ex.P.150(a) Signature of PW19 Ex.P.151 Proceedings of Superintendent of Police, Karnataka Lokayukta, City Division, Bengaluru Ex.P.152 Letter of PW9 dated 02.11.2007 Ex.P.152(a) Signature of PW9 LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
NIL LIST OF WITNESSES EXAMINED FOR ACCUSED:
DW1: Dr. Mallappa LIST OF DOCUMENTS MARKED FOR ACCUSED:
Ex.D.1 Certificate of DW1 in respect of accused 257 Spl.C.C. No.244/2010 Ex.D.1(a) Signature of DW1 Ex.D.2 Statement in respect of agricultural land at Gowdihalli Village of Eramma Ex.D.2(a) Signature of DW1 Ex.D.3 Statement in respect of agricultural land at Vishwanathahalli of Thimmappa Ex.D.3(a) Signature of DW1 Ex.D.4 Statement in respect of agricultural land at Kalkunte Village of Eramma Ex.D.4(a) Signature of DW1 Ex.D.5 & Statement in respect of agricultural D.6 land at Gangasamudra Village of Eramma Ex.D.5(a) & Signature of DW1 D.6(a) (S.V.SRIKANTH), C/c. LXXVIII ADDL. CITY CIVIL & SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU CITY.