Bangalore District Court
State Of Karnataka Represented By vs C. R. Narappa S/O Rudrappa on 27 April, 2018
IN THE COURT OF THE XXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU URBAN
DISTRICT, BENGALURU. (CCH-24)
Dated this the 27th day of April, 2018
PRESENT:
Smt. MANJULA ITTY, B.A.L., LL.B.,
XXIII Additional City Civil and Sessions Judge and
Special Judge,
Bengaluru Urban District, Bengaluru
SPL.C.C. NO.85/2011
Complainant: State of Karnataka represented by
Police Inspector, Karnataka
Lokayuktha Police Wing City Division,
Bengaluru.
(By Sri D. Ramesh Babu, Special
Public Prosecutor)
V/s
Accused: C. R. Narappa S/o Rudrappa, aged
about 55 years, Junior Engineer,
Cauvery Guest House, Bengaluru.
Residing at No.15, 26th Main Road,
13th Cross, BTM Lay Out, 2nd Stage,
Bengaluru.
(By Sri P.N.Hegde, Advocate)
2 Spl.C.C.No.85/2011
JUDGMENT
1. Police Inspector, City Division, Bengaluru submitted charge sheet against the accused for the offence punishable under section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act, 1988.
2. The prosecution case in brief is that the accused joined the Karnataka State Government service in Public Works department on 18.07.1983 as Junior Engineer and at the time of registering the present case against him, he was working as Junior Engineer, Cauvery Guest House, Bengaluru and he was residing at No.15, 26th Main Road, 13th Cross, BTM Lay Out, 2nd Stage, Bengaluru. Based on credible information that the accused has amassed wealth illegally, Lokayuktha police have collected information and documents relating to the source of accumulation of properties acquired by the accused. Source report was submitted by Police Inspector M.G.Subba Rao to the Superintendent of Police, City division, Karnataka 3 Spl.C.C.No.85/2011 Lokayuktha, Bengaluru who in turn, under the provisions of Section 17 of The Prevention of Corruption Act, 1988 made an order that Sri.M.G.Subbarao, police inspector to register and to investigate the said case. Accordingly, a case is registered in Cr.No.20/2006 by the Police Inspector, Karnataka Lokayuktha, Bengaluru and the FIR is submitted to this Court. Thereafter, the Investigating Officer armed with search warrant searched the residential premises of the accused bearing Door No.15, situated at 3rd 'D' Cross, 26th Main Road, B.T.M. 2nd Stage, Bengaluru City and a mahazar was drawn. Gold jewelry, silver articles and some incriminating documents were seized from the possession of the accused during the search. On 19.06.2006, police inspector, Karnataka Lokayuktha conducted search of Locker No.81, maintained in the name of the accused with State Bank of Mysore, situated at No.15, 100 feet Ring Road, B.T.M Lay Out, Bengaluru and seized gold ornaments weighing 410.09 grams valuing around Rs 3,28,072/- in the 4 Spl.C.C.No.85/2011 presence of the panch witnesses and a mahazar was drawn with respect to that. The police inspector, Karnataka Lokayuktha Bengaluru conducted investigation by collecting documents from various Departments and after obtaining explanation from the accused and after completion of the investigation, obtained sanction order to prosecute the accused for the alleged offence and laid charge sheet before this Court against the accused.
3. The presence of the accused was secured who is represented by his counsel. Copy of the charge sheet was supplied to the accused as contemplated under section 207 of Cr.P.C and the case was posted to hear before charge and after hearing both sides, my learned predecessor-in-office has framed charge against the accused on 22.07.2015 for the offences punishable under section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act, it was read over and explained to the accused who pleaded not guilty and claimed to be tried. 5 Spl.C.C.No.85/2011
4. The prosecution to prove the guilt of the accused has examined eleven witnesses as PWs.1 to 11 and got marked documents at Exs.P.1 to P 130. After closure of the prosecution evidence, the accused was questioned under section 313 Cr.P.C. who denied all the incriminating circumstances appearing against him as false. The accused has examined seven witnesses as DWs 1 to 7 in support of his defence but did not produce any documents.
5. Having heard in length the arguments addressed by both sides and taking into consideration of the evidence on record coupled with the documents, the following points arise for consideration.
1. Whether the prosecution proves beyond all reasonable doubt that accused being public servant while working as Junior Engineer, Cauvery Guest House, Bengaluru for the check period from 01.01.1994 to 09.06.2006 acquired assets dispro-
portionate to his known source of income 6 Spl.C.C.No.85/2011 and on or about 9.6.2006 accused was found in possession of pecuniary resources and properties in his name and in the name of his family members to the tune of Rs 69,63,177/- and his and his family expenses during the said period was at Rs 28,89,648/-, thus the sum total of income and expenditure comes to Rs 98,52,825/- and during this period his known source of income was only Rs 56,69,801/- and therefore, he was found in possession of property disproportionate to his known source of income to an extent of Rs 41,83,024/- that is 73.78% which is acquired by him by misusing his official position and committed criminal misconduct and thereby the accused has committed the offence punishable under section 13(1)(e) read with section 13(2) of the Prevention of Corruption Act, 1988 ?
2. What order?
6. My findings on the above points are:
Point No.1: In the Negative 7 Spl.C.C.No.85/2011 Point No.2: As per final order, for the following:
REASONS
7. Point No.1: Before going to the merits of the case, it is necessary to decide the validity of the sanction order marked at Ex.P.122 issued by the Under Secretary to the Government, Public Works Departments, Ports and Irrigation Department (Services- C). On his appearance before this court, the accused filed an application under section 227 r/w 239 of Cr.P.C praying for discharging him of the charges leveled against him and in the said application, he has contended that the sanction order obtained by the prosecution to prosecute the accused suffers from serious infirmities and hence invalid. Later the counsel for the accused filed memo dated 12.01.2015 stating that the accused is not pressing the application for discharge and prays to dismiss the said application and submitted before this court that charges may be framed against the accused. Based on the said memo and after perusal of the prosecution 8 Spl.C.C.No.85/2011 papers, this Court by order dated 12.01.2015 dismissed the application filed by the accused under section 227 r/w 239 of Cr.P.C and charges were framed to which the accused pleaded not guilty. The counsel has not raised any serious dispute about the validity of the sanction order even at trial and in his final arguments. From the perusal of the Prosecution Sanction Order I find that the sanctioning authority has applied its mind before issuing the Ex. P122 sanction order. All the relevant documents pertaining to the allegation against the accused finds mention in the proceedings which clearly shows that the prosecution sanction order is issued after thorough application of mind by the sanctioning authority, and the same is signed by the Under Secretary to the Government, Public Works Department, Ports and Irrigation Department (Services-C) for and on behalf of the Governor. Hence, the prosecution has proved that the Government, being the competent authority for issuance of sanction order has issued sanction to prosecute the accused and the same was carried out by 9 Spl.C.C.No.85/2011 issuing sanction order at Ex.P122 for the alleged offence against the accused.
8. Now, coming to the case of the prosecution that the accused has accumulated assets disproportionate to his known source of income during the check period from 01.01.1994 to 09.06.2006. According to the prosecution, during the check period total asset of the accused is Rs 69,63,177/- and his and his family expenses during the said period was Rs 28,89,648/-, thus, sum of income and expenditure is Rs 98,52,825/- and during this period his known source of income was only Rs 56,69,801/- and he was found in possession of property disproportionate to his known source of income to an extent of Rs 41,83,024/- which is at 73.78% acquired by him by misusing his official position and committed the alleged offence. It is the specific case of the prosecution that the accused has amassed wealth in his name and in the name of his family members illegally during the check period.
10 Spl.C.C.No.85/2011
9. Analysis of the evidence of prosecution witnesses:
i. PW1, M. G. Subba Rao, the then Police Inspector of Lokayuktha Police, deposed that he prepared Ex. P1 source report showing that the accused possessed disproportionate assets and after obtaining Ex. P2 authorization from the Superintendent of Police Karnataka Lokayuktha, he registered Ex. P3 FIR in crime no. 20/2006 and on the strength of Ex. P4 search warrant, conducted search of the residential premises of the accused in presence of witnesses and seized several valuable items and documents as per Ex.P5 mahazar. He also conducted search of the Bank Locker maintained by the accused at State Bank of Mysore and seized gold jewels kept in the locker. He would further depose that he collected all documents pertaining to the assets acquired by the accused, his expenditure and income during the check period. Further Exs. P6 to 89 were marked though this witness to prove the 11 Spl.C.C.No.85/2011 assets, income and expenditure of the accused. He admits in his cross examination that he did not collect any documents before preparing the source report.
ii. PW2, M. S. Ravikumar is the one of the mahazar witnesses who was present at the time of search of the residential premises of the accused. He deposed with respect to the search, seizure and drawing of mahazar by the Investigating Officer and in his cross-examination a request letter sent by PW1 to the superior officer of this witness is marked by the defence counsel through this witness which shows that that there is an overwriting in the date reflected in this document. The date 13-05-2006 is seen struck off to change it into 08-06-2006. Since this document is purported to be have been made by PW1, this should have been shown to PW1 and should have got confronted through him. He is the only person who can speak about the overwriting made in the document. Therefore, the endeavor made by the learned defence counsel to impress the court that the Investigating Officer who prepared source report dated 12 Spl.C.C.No.85/2011 07-06-2006 had started collecting information and thereby started investigation of this case much prior to registering the FIR without mentioning anywhere in either in FIR or in the Station House Diary with respect to preliminary inquiry cannot be accepted.
iii. PW3, M. Siddalingappa is the mahazar witness who accompanied PW1 in conducting search of the Bank Locker maintained by the accused with the State Bank of Mysore and seized 410.9 grams of gold jewelry from the locker. There is no serious dispute raised by the defence counsel with respect to the evidence adduced by this witness.
iv. PW4, K. Srinivas is the engineer attached to the technical wing of the Lokayuktha Police, who has given valuation certificate of two house properties of accused situated at HSR layout and BTM layout. His testimony is that the house situated at HSR layout is valued at Rs. 10,28,000/- and that situated at BTM layout is valued at Rs. 11,25,000/-. In his cross-examination he has admitted that these amounts include the contractor charges and if the owner himself 13 Spl.C.C.No.85/2011 supervises the constructions without entrusting it to a contractor the construction cost diminishes by 10%.
v. PW5, Purandar V. Jannu is the goldsmith who valued and weighed the gold jewelry and silver articles belonging to the accused. His testimony is that he valued the 610 grams gold jewelry seized from the house and the bank locker of the accused at the rate of Rs. 800/- per gram, the rate which was prevailing at the time of valuation of the same. He admitted in his cross examination that he did not tell the Investigating Officer the age of the gold jewelry and silver articles and he would further say that those might have been 15 years old when he valued them. He also admitted that he did not inform the Investigating Officer, the market value of 1 gram of gold as on the date of search.
vi. PW6, S. Maheshwarappa is one of the Investigating Officers of this case and testifies that he took over investigation of this case from PW1 as per the Ex. P 92, orders of the Superintendent of Police, Karnataka Lokayuktha. His testimony shows that he has conducted 14 Spl.C.C.No.85/2011 investigation and collected documents with respect to the agricultural and horticultural income of the accused and the income of the wife of accused apart from collecting documents with respect to other income and expenditure of the accused. My learned predecessor-in-office has also noted the demeanor of this witness in adducing evidence against the accused and made an adverse remark against him. In his cross examination it is brought out that he obtained statements of witnesses which depicts that the wife of accused was given 20-25 tholas of gold jewelry at the time of marriage by her parents. She was also given with landed properties and cash by her father after her marriage with the accused. He also answers in affirmative when asked by the learned counsel for the accused that the foreign tour conducted by the accused and wife was a complementary from the Birla Super Cement Company as the wife of accused was holding authorized agency of the Company. He also admits that he collected reports from agricultural officer with respect to the agricultural income of the accused and 15 Spl.C.C.No.85/2011 his wife. He also admits in his cross-examination that he obtained reports from agricultural officer pertaining to the agricultural income gained by the accused from 1999 to 2006 and he also admits that he obtained three reports showing three different income. The first report shows that the agricultural income of the accused is at Rs.22,31,985/- and the second report shows the net income of Rs.20,91,939/- and the explanation given for the difference in the first report and the second one is that, the first report did not deduct the expenditure incurred by the accused. He also admits in his cross-examination that he called for another report from the officer concerned which shows the agricultural income of accused is at Rs.1830465/-.
vii. PW.7, V.B.Lakshmegowda is another Investigating Officer who had investigated the case as per the authorization Ex.P95, but from his testimony it can be seen that he has not conducted any fruitful investigation in this case and he had handedover investigation to PW.8. 16 Spl.C.C.No.85/2011
viii. PW.8, K.C.Lakshminarayana another Investigating Officer who had completed investigation and laid charge sheet before this court against the accused. He deposes that he conducted investigation of this case as per Ex.P114, authorization of the Superintendent of Police concerned. He also testifies that he obtained documents with respect to income and expenditure of the accused. He admits in his cross examination that he did not conduct any investigation with respect to the assets and income of accused from 1983, the year accused entered into the Government Service till 1994. He also admits that the marriage of the accused was solemnized in the year 1988 and the gifts and jewelries received by the accused and his wife at the time of his marriage is taken into consideration as the assets gained by him during check period. He further admits that at the time of raid 616 gms. of gold jewelry were found in possession of accused. In his Assets and Liabilities Statements pertaining to 1992-93 submitted to his department, the accused has declared that he is in 17 Spl.C.C.No.85/2011 possession of 350 gms. of gold jewelry, but the Investigating Officer admits that he did not deduct the value of above jewelry from the assets of accused. He would depose that he considered 100 gms. jewelry for deduction. Another major admission brought out by the Learned counsel for the accused in the cross examination of this witness is with respect to the agricultural income of the accused. His testimony is that four reports were obtained from the agricultural officer, but he did not consider any of these reports, he admits that he took into account the receipts obtained at the time of search of residential premises of the accused with respect to sale of some agricultural products to the market and has taken Rs.3,73,070/- as agricultural income of the accused, brushing aside all the four reports obtained from agricultural officer. His further testimony is with respect to the value of the two houses of accused. Ex.P61 report shows that the value of both the houses is at Rs.21,53,000/-, but the Investigating Officer has taken the value as Rs.36,70,000/-. Later he was again called on 18 Spl.C.C.No.85/2011 request of the Learned PP u/s.311 Cr.P.C. and he had deposed with respect to as to why he had not considered the income of the accused and his wife while submitting final report showing disproportionate asset acquired by the accused.
ix. PW.9 K.R.Devaraj, is Deputy Director Horticulture Department who submitted reports with respect to Agricultural and Horticultural income of the accused to the Investigating Officer. He admits in his cross-examination that while preparing reports he considers the minimum rate and he also testified before this court that on 15-12-2008 the Investigating Officer made a written request seeking that a report showing maximum expenditure with minimum income is to be given to them with respect to the agricultural income of accused. Hence, he had given 4th report showing net income at Rs.11,61,711/-.
x. PW.10, D.Renuka is the Deputy Agricultural Director, she submitted report with respect to the 19 Spl.C.C.No.85/2011 expenditure and income derived from Agricultural Land of the wife of the accused during the period 1999-2006.
xi. PW.11, Jayadevaprakash, Joined Director, Karnataka Lokayuktha, Statistical Division gave evidence with respect to family expenditure of the accused with respect to Food and other invisible expenses of the accused.
10. According to the prosecution, the income of the accused during the check period was Rs 56,69,801/-The details are as under:
Sl. Income during check period
Amount in Rs
No
1 Total salary of the accused 14,89,081-00
2 Income from agricultural 12,197-00
(Sy.No.76/2)
3 Income from horticulture 3,73,070-00
(Sy.No.220P, 189, 188 of Thalya
village
4 Rents from House No.15 BTM Lay 60,000-00
Out, Bengaluru
5 Loan obtained from HDFC Bank 3,00,000-00
6 Loan availed from Allahabad Bank 15,00,000-00
7. Loan availed fro-m Chitradurga 1,00,000-00
Grameena Bank
8 Loan availed from G.E.Countrywide 3,00,000-00
Bank
9 Loan from GPF account 1,60,500-00
10 Partial withdrawal from GPF account 1,75,000-00
20 Spl.C.C.No.85/2011
11 Loan from K.G.I.D 47,400-00
12 Loan from LIC 11,910-00
13 Loan obtained from Uma 1,00,000-00
Maheswarappa
14 Loan from Nandeesh 1,00,000-00
15 Loan from Basavaraj 1,00,000-00
16 Loan from Smt.Susheelamma 6,45,000-00
17 Interest received from Canara Mahila 951-00
Bank Jayanagara
18 Interest received from Karnataka 3,212-00
Bank, BTM Lay Out
19 Interest from Indian Bank, Sagara 174-00
20 Interest from Pragathi Grameena 640-00
Bank, Thalya village
21 Interest from Canara Bank, Sagara 1,618-00
(C.R.Narappa)
22 Interest from Canara Bank, Sagara 520-00
(G.R.Aruna)
23 Interest from Alahabad Bank 292-00
K.G.Road
24 Interest from Syndicate Bank, Sagar 519-00
25 Interest and Dividend from Chartered 1,553-00
Co-operative Bank
26 State Bank of Mysuru, M.S Building 4-00
(C.R.Narappa)
27 Income from K.B.G.N.L Bond 15,000-00
No.1758625
28 Income from U.T.I share 5,890-00
29 Survival benefit from LIC Policy 30,000-00
No.620921602
30 Income from Shankar Traders 1,35,270-00
Total 56,69,801-00
21 Spl.C.C.No.85/2011
11. The line of argument of the learned Public Prosecutor is that the Investigating Officer collects information and documents with respect to the legal source of income of the accused during check period and based on those documents he obtains the total income of the accused and if he claims any other income beyond that, the burden is on the accused to prove it as per section 106 of the Indian Evidence Act. The learned counsel for the accused strongly opposed this contention of the learned Public Prosecutor and submits that since, provisions u/s 20 of the PC Act is not applicable to offences defined u/s 13(1)(e) of the PC Act, the burden is on the prosecution to prove beyond reasonable doubt that the accused possessed assets disproportionate to his known source of income. He placed reliance on the decision of the Hon'ble Apex Court in Vasant Roa Guhe Vs. State of Madhya Pradesh reported in (2017)14 SCC 442 wherein the it was held that " from the design and purport of section 13(1)(e), it is apparent that primary burden to bring home the charge of criminal misconduct 22 Spl.C.C.No.85/2011 thereunder would be indubitably on prosecution to establish beyond reasonable doubt that public servant either by himself or through anyone else had at any time during the period of his office been in possession of pecuniary resources or property disproportionate to his known source of income and it is only on discharge of such burden by the prosecution, if he fails to satisfactorily account for the same, he would be in law held guilty of the offence"
12. Therefore, now the prosecution must discharge its initial burden by proving that either the accused or any member of his family member at any point of time had been in possession of the property disproportionate to his known source of income. If the initial burden is not discharged by the prosecution the onus does not shift to the accused to offer his explanation as to how he could have been in possession of either directly or through some other members of his family in possession of the property disproportionate to the known source of income.23 Spl.C.C.No.85/2011
13. The accused has not disputed the total salary of Rs 14,89,081.00 as calculated by the investigating officer. But he strongly disputed the quantum of income taken by the Investigating Officer with respect to agricultural income even though the documents exhibited by the prosecution itself reflect a higher income than the one taken into consideration by the Investigating Officer. The learned counsel for the accused pointed out that the Investigating Officer ought to have considered all the income declared under Income Tax Returns and Assets and Liabilities Statements submitted by the accused to his department from time to time. He further argued that the investigating officer did not consider the legitimate income derived by the wife of the accused and declared by the accused under the relevant law. His line of argument is that, since the check period is subsequent to the accused joining government service and his marriage, the investigating officer is required to consider the spilled over income of the accused i.e., income earned by the accused from the date of joining the 24 Spl.C.C.No.85/2011 service till the 1st day of the check period i.e., from 18.07.1983 to 01.01.1994 and so also the income derived by the wife of the accused from the date of her marriage i.e., from 4.07.1988 to 01.01.1994. He further argued that the accused had declared his savings of Rs 60,000/- in his Assets and Liabilities statements for the year 1992-93 and this income has not been taken into consideration by the Investigating Officer.
14. PW 8, in his cross examination at page 8 Para 12, admits that the accused in his Assets and Liabilities statements for the year 1992-93 has shown his savings of Rs 60,000/-. In para 49 page 28 of his deposition shows that since the said amount of Rs 60,000/- is earned prior to the check period he has not taken the said amount as income of the accused. On perusal of the final report, the investigating officer has not taken the aforesaid amount of Rs 60,000/- as income of the accused. Hence, as rightly pointed out by the learned counsel for accused this is the spilled over income 25 Spl.C.C.No.85/2011 and ought to have considered while calculating the income of the accused.
15. Learned counsel for the accused further proceeded his arguments inviting the Court's attention to the agricultural and horticultural income of Rs 2,42,000/- derived by Smt. G. R. Aruna, wife of the accused from the year 2001-01 to 2005-06. She is an income tax assessee and she has periodically declared her income in her income tax returns. However, the Assistant Director of Agricultural Department has calculated that she received an income of Rs 14,758/- from agriculture but the investigating officer has taken Rs 12,197/- as agricultural income and thus, purposely left out Rs 2,29,803/- though she had declared the said amount in her IT returns. He further argued that she also derived an income of Rs 3,94,264/- from M/s Shankar Traders, Rs 96,000/- from Beauty Parlour and Rs 42,000/- from home tuitions. 26 Spl.C.C.No.85/2011
16. To this contention the learned Public Prosecutor has countered that the accused had not declared the source of income of his wife and in the Assets and Liabilities statements and the accused has mentioned that his wife derived income but has not specifically stated how much income she derived and from what source she earned. Further, relaying upon the decision of the Hon'ble Supreme Court in State of Karnataka Vs. J. Jayalalitha reported in (2017)6 SCC 263 he submits that the declaration of income in Income Tax Returns cannot be considered while appreciating evidence in a case where the accused is charged under the provisions of the PC Act. The Hon'ble Apex Court has held that "ITRs and IT order do not constitute fool proof defence in DA cases. ITRs and IT orders would not ipso-facto either conclusively prove or disprove charge of disproportionate assets (acquisition of assets disproportionate to known source of income) and can at best be pieces of evidence which have to evaluated along with other materials on 27 Spl.C.C.No.85/2011 record. The scrutiny and orders passed by IT authorities do not certify or authenticate that source thereof to be lawful and thus no significance vis-a'-vis a charge u/s 13(1)(e)". Therefore, the explanation of the accused with resect the income of his wife cannot be considered.
17. In his cross examination, PW 8 K.C.Lakshminarayana has categorically admitted that the wife of the accused has declared the agriculture income of Rs 2,42,000/- in her Income Tax returns and states that in his final report, he has taken the agriculture income of Rs 12,197/- and he explains that the Ex P 80, report he obtained from the Assistant Director of Agricultural Department revealed that she received an income of Rs. 14,758/- but during investigation he found that the said agricultural land is cultivated by one Ravi and the profit was shared between Smt. Aruna and the said Ravi equally. He further deposed that at the time of search of the residential premises of the accused, the searching officer seized certain 28 Spl.C.C.No.85/2011 receipts pertaining to the sale of agricultural products of Smt. Aruna which shows that she received Rs. 24,394/-. Therefore, after deducting 50% of the same which is to be given to Ravi, remaining amount is taken as income. This explanation of the Investigating Officer cannot be accepted, because he has just taken into consideration of the receipts seized at the time of search. The specific case of the accused is that his wife derived income of Rs. 2,42,000/- from her agricultural land which is also declared by her in her ITRs. The Assistant Director of Agricultural Department who was examined as PW10 says that Smt. Aruna might have received Rs. 14,758/-. It is elicited by the learned counsel for the accused in cross-examination of PW10 that the agricultural land belonging to Smt. Aruna is surrounded by Bheemasandra Lake and the lands surrounding the said Lake is very fertile land and she admits that she did not collect any information from Meteorological Department with respect to the rainfall during the check period. She also testifies that she has not stated the income derived during 29 Spl.C.C.No.85/2011 1999-2000 in her report. It is also brought out in her cross- examination that she did not take the income derived from onion crop grown in the said land during 2001-02 as that crop comes under horticultural department. It is her testimony that she did not calculate the income that might have accrued from the said land during 2002-04 since the revenue records showed that the land was left barren during that period. Therefore, on evaluation of this evidence the figure arrived at by PW10 cannot be considered to find out the income from the agriculture land received to Smt. Aruna. At the same time the figure the Investigating Officer considered also cannot be appreciated since there is no evidence on record to show that Ravi was cultivating the land of Smt. Aruna, except the testimony of Investigating Officer that he recorded the statement of this Ravi u/s 161 of CrPC. This Ravi is not examined before court to prove this fact. Wife of the accused Smt. Aruna was examined by the defence as DW2 and she deposed that her mother had gifted 2 acres 03 guntas of land to her as 'Arashina Kumkuma' 30 Spl.C.C.No.85/2011 ceremony. Ex P86 is the RTC extracts for the years 1999 to 2006 in respect of Sy.No.76/2 of Hosahalli village, Hireguntanuru Hobli, Chitradurga Taluk. Hence, taking the true spirit of sum and substance of the law laid down by the Hon'ble Apex Court in J. Jayalalitha's case (supra), the declaration in ITRs can be accepted evaluating the same with other available evidence on record such as RTCs of the said land which depicts the crops grown in the land, extent of the land, topographical conditions of the land, etc. and therefore, I am of the considered opinion that the investigating officer ought to have taken Rs 2,42,000/- derived by the wife of the accused from agriculture under the head of income of the accused.
18. Further the investigating officer has also admitted in his cross examination that the wife of the accused has declared in her IT returns that she has received remuneration of Rs 60,000/- for the year 2001-2002, Rs 36,000/- for the year 2002-03, Rs 55,000/- for the year 2003-04, Rs 36,000/- for the year 2004-05, Rs 48,000/- for 31 Spl.C.C.No.85/2011 the year 2006-07 from Shankar Traders Company. PW 8 further admitted that Smt.Aruna has declared that she has received profit amount of Rs 17,667/- for the year 2003-04 and Rs 30,377/- for the year 2004-05. On perusal Ex P71, it is clearly mentioned that Smt.G.R.Aruna received the following income.
Year Income Remuneration Total
31.03.2001 7,482.00 60,000-00 67,482.00
31.03.2002 14,136.00 36,000-00 50,136.00
31.03.2003 17,667-00 55,000-00 72,667-00
31.03.2004 30,377.00 36,000-00 66,377-00
31.03.2005 39,241.00 36,000-00 75,241-00
31.03.2006 26,361.00 36,000-00 62,361.00
1,35,264.00 2,49,000-00 3,94,264-00
Thus, Smt. Aruna received total amount of Rs 3,94,264/- as income and remuneration from Shankar Traders. PW 8 in his cross examination has further admitted that she is one of the partners of Shankar Trader. On perusal of Ex P71 letter issued by Shankar Traders dated 12.07.2007, it is clearly mentioned that she invested Rs 1,00,000/- as her capital and she has received an income of Rs 3,94,264.00 from Shankar 32 Spl.C.C.No.85/2011 Traders. However, the investigating officer has taken the income of Rs 1,35,270/- received by Smt.Aruna considering only the of the profit the firm accrued and dividing the same to both the partners. ExP71 is set of letters and partnership deed pertaining to Shankar Traders which gives out the income of the firm after deducting all the expenditure incurred to the firm including the salary paid to its employees. The defence examined the partner of the firm Sri. Thippewamy as DW7 and he testifies before this court that Smt. Aruna is his sister and the initial capital of Rs. 2,00,000 for the firm was given to them by their father and the net income received by the firm is Rs.2,70,541/- out of which Smt. Aruna's share of profit is Rs. 1,35,270/-. He was not cross-examined with respect to the remuneration she received from the firm. The copy of the Partnership deed shows that the partners are entitled to a remuneration of Rs. 3,000/- per month as salary and page 3 of ExP71 gives out the details of expenditure incurred by the firm and it shows that the salaries and wages paid by the firm is at 33 Spl.C.C.No.85/2011 Rs. 4,43,500/-. The Investigating Officer has accepted the gross income and expenditure of the firm which is shown at Ex.P71 and he has considered the net income after deducting expenditure and taken Rs. 1,35,264/- as income of Smt. Aruna as per the terms of the partnership deed wherein it is stated that the profits will be shared among the partners equally. When the Investigating Officer accepts the terms of the partnership deed to share the profits, then he must accept another term in the same deed that the partners are entitled to Rs. 3,000/- as remuneration per month. Investigating Officer cannot blow hot and cold at the same time. Ex. P71 reveals that Rs. 4,43,500/- is deducted from the profit of the firm as it is shown as salaries and wages paid. Smt. Aruna says that she received salary from the firm it has to be accepted when there is evidence to show that if in fact it is deducted from the profit of the firm. Investigating Officer did not accept the salary earned by Smt. Aruna on the ground that there are no corresponding bank documents to show that she received salary. Hence the 34 Spl.C.C.No.85/2011 method adopted by Investigating Officer to arrive at the income of Smt. Aruna from Shankar Traders cannot be accepted. The amount of Rs. 3,94,264/-, the entire amount claimed by Smt. Aruna is to be considered as her income.
19. PW 8 further admitted that the wife of the accused has declared that she received Rs 42,000/- from home tuitions during the year 2004-05. The learned Public Prosecutor submits that since the accused has not furnished any documents, the said amount has not been considered as income of the accused. The accused has not placed any records to show that his wife earned money conducting home tuitions. The learned Public Prosecutor submits that Smt. Aruna studied up to S.S.L.C and the accused has not disclosed where she was conducting tuitions, how many students were taking tuitions from her, to which class and in which subjects. Smt. Aruna was examined as DW 2 and in the cross examination, she has stated that she was conducting the home tuitions for students upto 3rd standard in Kannada language. It is common that house wives 35 Spl.C.C.No.85/2011 conducting tuitions to neighborhood children and but there is nothing to show that she conducted tuitions and received Rs. 42,000/- as remuneration from 8 to 10 students during 2004-05. Hence, the investigating officer rightly rejected this claim as income derived by the wife of the accused from the tuitions. It is the case of the accused that his wife was working in a beauty parlour on part time basis and she received an amount of Rs. 96,000/- as salary and the Investigating Officer did not consider the said amount under the head of his income. On perusal of Final Report, the Investigating Officer had not considered this amount because the income earned by Smt. Aruna is not declared by the accused in his Assets and Liabilities statements. A letter purporting to be issued by Smt. Bharathi is produced accused stating that Smt. Aruna was working in her beauty parlour and she received Rs. 96,000/- as salary from the parlour. Since the prosecution strongly objects this income, the contents of the letter must be proved through its maker. No endeavor is made by the accused to prove the same. 36 Spl.C.C.No.85/2011 Therefore, this amount cannot be taken as income of accused even though it is mentioned in her ITRs by Smt. Aruna.
20. Learned counsel for the accused seriously disputed that the Investigating Officer considered only Rs. 3,73,070/- as agricultural income of the accused while the repots at Exs P87, 93, 96 and 113 which the investigating officer had obtained from the Horticultural Department shows much higher income. In the first report, the horticulture department has stated that the accused might have received the income of Rs 22,31,985.00. But, the investigating officer has sought for another report and in the 2nd report, it is mentioned the income of Rs 20,19,939-99. The Assistant Director, Horticultural Department is examined as PW9 and he deposes that the first report at ExP87 shows the gross income from the agricultural land of the accused while the 2nd report at Ex P93 gives the net income from the land after deducting all expenditure incurred. He further testifies in his cross examination that the Investigating 37 Spl.C.C.No.85/2011 Officer summoned him to the Lokayuktha office, argued with him and directed him to escalate the expenditure, to bring down the profit and to show minimum income from the land. Therefore, he submitted the third report at Ex P96 showing the income as Rs. 18,30,465/- Later, the Investigating Officer pointed out that the Ex P96 report consists of the income derived from horticultural crops including the year 2006-07 which is out of the check period and hence seeks for another report excluding that period. Therefore, he was constrained to issue Ex P113 report to the Investigating Officer as per his instructions showing Rs. 11,61,711/-. He admits in his cross examination that the report at Ex P96 is true which shows the net agricultural income derived from the land by the accused. He admits that at the time of issuing Ex P96 he was asked by the Investigating Officer to consider the least value available for crops. However, without assigning any plausible reason, the investigating officer has considered only Rs 3,73,070/- as income derived by the accused from the agriculture. Learned Public 38 Spl.C.C.No.85/2011 Prosecutor submits that the Horticulture Department in the report has clearly stated that the accused has not raised any crops and he has not sold any crops raised from the aforesaid lands. Since there is 100% tax exemption to agriculture income, the accused has declared the said income from the agriculture in his IT returns. Therefore, Investigating Officer has considered Rs. 3,73,070/- as agricultural income of accused based on the receipts seized from the residence of the accused during search. Possession of receipts pertaining to sale of agricultural products and the seizure of the same from the house of accused does not mean that his income from agricultural land has to be confined to the amount shown in those receipts. The reports obtained from PW9 has to considered and the net income as depicted in Ex P113 is to be taken as income from horticulture.
21. The learned counsel for the accused has contended that he had raised loan of Rs 2,00,000/- from his 39 Spl.C.C.No.85/2011 co-brother Mr.Nandish, an amount of Rs 2,00,000/- from one Sri.Basavaraju, Rs 1,00,000/- from Umameshwarappa and Rs 7,00,000/- from his sister/mother-in-law Smt.Susheelamma. However, the investigating officer has taken Rs 1,00,000/- as loan received by the accused from his co-brother, Rs 1,00,000/- from Basavaraju, Rs 1,00,000/- from Umamaheshwarappa and Rs 6,45,000/- from Smt.Susheelamma. The accused examined his co-brother Nandish as DW 5 and he deposed in his evidence that in the year 1995 accused availed a loan of Rs one lakh from him and he transferred the said amount from his bank account maintained at Shiva Co-operative Bank again in the year 2006 accused borrowed Rs one lakh and he paid the said sum out of his agriculture income. He deposes that the accused has returned the entire loan of Rs 2,00,000/- borrowed from him. The Investigating Officer considered only Rs. 1 lakh as loan availed from DW5 as there was no bank records to show the remaining amount. 40 Spl.C.C.No.85/2011
22. The accused examined another co-brother Basavaraju as DW 4 and he deposed in his evidence that in the year 2006 accused availed a loan of Rs two lakhs from him and he transferred the said amount from his bank account maintained at Canara Bank, Vidhyanagar branch. He deposes that the accused has returned the entire loan of Rs 2,00,000/- borrowed from him. The Investigating Officer considered only Rs. 1 lakh as loan availed from DW4 as there was no bank records to show the remaining amount. DW 1 Susheelamma has deposed that she advanced Rs 7,00,000/- to the accused as loan at the time of construction of a building by the accused from her fixed deposit at Mahila Bank which was deposited by her husband in her name. However, the investigating officer has taken only Rs 6,45,000/- as loan received by the accused from DW 1 as there was no records to show the remaining amount of Rs. 55,000/-. The Investigating Officer has considered the loan amount of Rs. 1 lakh advanced by Sri. Umamaheshwarappa to accused as claimed by the accused.41 Spl.C.C.No.85/2011
23. DW1 and DW4 have stated in their evidence they had advanced loan to accused through bank but there is no evidence on record to the entire amount they claim to have been given to the accused. Therefore, the Investigating Officer rightly rejected the amount for which there is no record even though they specifically state that the amounts were transferred through bank. As far as the loan advance by DW5 is concerned, he states that he had given Rs. 1 lakh through bank and the remaining Rs. 1 lakh by cash which he obtained from his agricultural income. The testimony of DW5 goes on to show that he sold his paddy and gave money to accused in the year 2006. He withstood the cross examination conducted by the learned PP and nothing is brought out to discredit this witness. Therefore, the entire loan amount advance by DW5 has to considered in the income of the accused.
24. The learned counsel for the accused submits that the Investigating Officer has not considered the amount of 42 Spl.C.C.No.85/2011 Rs. 4,00,000/- received by the accused from his brother. It is the specific case of the accused that he got 4.2 acres of land on partition of his ancestral property in the year 1990 and as he was employed under state government service, he left the property to his brother to cultivate it. In the year 1999, when the accused was in need money, he requested his brothers for Rs 9,00,000/- as income received by them from the year 1990 to 1999 from the afore said agricultural land but they denied the same. There was a compromise talk carried out among themselves in presence of elders of his village and arrived at a settlement and his brother gave him a sum of Rs 4,00,000/- at the rate of Rs. 50,000/- per acre in the year 1999. The accused had declared this amount in his Assets and Liabilities statements also. To substantiate this DW3, Baralli Jayappa was examined by the defence and he deposed that he owns 8 acres of land in Thalya village abutting the land of the accused where the family of the accused owns 15 acres of land. They had raised areca crops in the said land. He deposes that he was one among the 43 Spl.C.C.No.85/2011 three others who were the mediators for arriving at a settlement between accused and his brothers. But the investigating officer has not taken this amount as income of the accused. In his cross examination, PW8, the Investigating Officer he admits that the accused received Rs 4 lakhs in the year 1999. The accused has declared the said amount in his Assets and Liabilities statements for the year 1998-99 submitted to the Department. From the material evidence available on record, the investigating officer has left out the said amount of Rs 4 lakhs from the income of the accused.
25. Learned counsel for the accused has contended that the investigating officer has not considered the amount of Rs. 20,000/- and Rs 40,000/- received from two bonds of SCICI. PW 8 in his evidence at Para 18 has deposed that since the SCICI Limited has not responded to his letter he has not considered the said amount of Rs 60,000/- into the income of the accused. He further admitted that the said two 44 Spl.C.C.No.85/2011 bonds are at page Nos 82 to 88 of volume No.4. The investigating officer ought to have taken the said amount of Rs 60,000/- as income of the accused.
26. The learned counsel for the accused pointed out that the accused had sold old a car belonging to his brother- in-law for Rs 80,000/- and the investigating officer has not taken the said amount as income of the accused. The brother-in-law Sri. Thippeswamy who is examined as DW 6 has deposed that he sold his old Maruthi 800 car to Maruthi True value for Rs. 80,000/- and a new Maruthi Zen car was purchased for the accused. When the value of the said new vehicle is considered in the assets of the accused the amount of Rs. 80,000/- got in exchange of the old car is to be considered in the income of the accused. The investigating officer has wrongly left out this amount from income of the accused.45 Spl.C.C.No.85/2011
27. Learned counsel for the accused has argued that the father-in-law of the accused had given an amount of Rs 1,00,000/- as gift out of the sale proceeds from his land and another Rs 1,00,000/- out of the income derived from the agricultural land. The accused has declared the said amount in his Assets and Liabilities Statements. A perusal of the final report at page No.98, it is mentioned that the accused received Rs 1,00,000/- from his father in law as gift and at page No.100, it is mentioned that the accused received Rs 1,00,000/- from his father in law, he has also declared the said amount in his Assets and Liabilities statements. The Investigating Officer explains that as the accused has not furnished any documents to show the receipt of Rs.2,00,000/- from his father-in-law he did not consider the said amount. Since the accused has declared the receipt of said amount in his Assets and Liabilities statements the investigating officer ought to have considered the said amount to the income of the accused.46 Spl.C.C.No.85/2011
28. The accused has not disputed rent of Rs 60,000/- received by his wife of accused from Tata Power Company. Further the accused has not disputed the loan of Rs 3,00,000/- availed from H.D.F.C Bank, Rs 15,00,000/- from Allahabad Bank, Rs 1,00,000/- Chitradurga Grameena Bank, Rs 3,00,000/- from J.E.Countrywide Bank, Rs 1,60,500/- from G.P.F Account, Rs partial withdrawal of Rs.1,75,000 from GPF Account, Rs 47,400/- from the KGID, Rs 11,910/- from LIC. Further the accused has also not disputed the interest of Rs 951/- received from Canara Mahila Bank, Jayanagara Branch, Rs 3,212/- from Karnataka Bank, BTM Lay Out, Rs 174/- from Indian Bank Sagar, Rs 640/- from Pragathi Grameena Bank, Thalya village, Rs 1618/- from Canara Bank, Sagara, Rs 520/- received by the wife of the accused from Canara Bank, Sagar, Rs 292/- from Allahabad Bank, K.G.Road, Rs 519/- from Syndicate Bank, Sagara, Rs 1553/- Chartered Co-operative Bank, Rs 4/- from State Bank of Mysore, M.S.Building, Rs 15,000/- from K.B.G.N.L Bond 47 Spl.C.C.No.85/2011 No.1758625, Rs 5890/- from U.T.I Share, Rs 30,000/- survival benefit from LIC policy No 620921602.
29. As per the calculation of the Investigating Officer the income of the accused is Rs 56,69,801/-, but from the available evidence on record before this court the income of the accused is Rs. 88,47,467/- which is shown in detail in the table below:
Sl. Income during check period Amount in No Rs 1 Total salary of the accused 14,89,081 2 Income from agricultural (Sy.No.76/2) 02,42,000 3 Income from horticulture 11,61,711 (Sy.No.220P, 189, 188 of Thalya village 4 Rents from House No.15 BTM Lay 60,000 Out, Bengaluru 5 Loan obtained from HDFC 3,00,000 6 Loan availed from Allahabad Bank 15,00,000
7. Loan availed from Chitradurga 1,00,000 Grameena Bank 8 Loan availed from G.E.Countrywide 3,00,000 Bank 9 Loan from GPF account 1,60,500 10 Partial withdrawal from GPF account 1,75,000 11 Loan from K.G.I.D 47,400 48 Spl.C.C.No.85/2011 12 Loan from LIC 11,910 13 Loan obtained from Uma 1,00,000 Maheswarappa 14 Loan from Nandeesh 1,00,000 15 Loan from Basavaraj 2,00,000 16 Loan from Smt.Susheelamma 6,45,000 17 Interest received from Canara Mahila 951 Bank Jayanagara 18 Interest received from Karnataka 3,212 Bank, BTM Lay Out 19 Interest from Indian Bank, Sagara 174 20 Interest from Pragathi Grameena 640 Bank, Thalya village 21 Interest from Canara Bank, Sagara 1,618 (C.R.Narappa) 22 Interest from Canara Bank, Sagara 520 (G.R.Aruna) 23 Interest from Allahabad Bank 292 K.G.Road 24 Interest from Syndicate Bank, Sagar 519 25 Interest and Dividend from Chartered 1,553 Co-operative Bank 26 State Bank of Mysuru, M.S Building 4 (C.R.Narappa) 27 Income from K.B.G.N.L Bond 15,000 No.1758625 28 Income from U.T.I share 5,890 29 Survival benefit from LIC Policy 30,000 No.620921602 30 Income from Shankar Traders 3,94,264 49 Spl.C.C.No.85/2011 31 Spilled over income 60,000 32 Amount paid by the brothers as per 4,00,000 settlement 33 Amounts from SCICI bonds 60,000 34 Gift from Father-in-law 2,00,000 Total 77,67,239
30. Assets of the Accused:
In the final report the investigating officer has shown the assets of the accused and his family members as follows:
Sl. Particulars of the assets Value No. 1 Value of site No.15 BTM Lay Out, 3,88,000 Bengaluru 2 Value of the building in Site No.15 BTM 11,25,000 Lay Out, Bengaluru 3 House No.1876, HSR Lay Out, Bengaluru 6,15,000 4 Value of the building in No.1876 HSR Lay 25,45,000 Out, Bengaluru 5 Value of the site No.438/3, & 438/4 Talya 78,000 village, Holalkere Tq, Chitradurga 6 Account No.5930 in Indian Bank, Sagar 681 7 Account No.2526, Chitradurga Grameena 1,710 Bank 8 Account No.19636, Canara Bank Sagar 5,288 9 Account No.6051, Alahabad Bank, 3,009 K.G.Road 10 Account No.37637 Syndicate Bank, 991 50 Spl.C.C.No.85/2011 Manipal 11 Account No.0000093, Chartered Co- 1,703 operative Bank, Bengaluru 12 Account No.54007058384, State Bank of 167 Mysore, BTM Lay Out, 13 Account No.5403466166, State Bank of 3,586 Mysuru, M.S.Building 14 Account No.21429 (G.R.Aruna) Canara 1,431 Bank, Sagar 15 Account No.09110005259 (G.R.Aruna), 276 State Bank of Mysuru, B.T.M Lay Out 16 Account No.849 Karnataka Bank, B.T.M 2,615 Lay Out 17 Account No.821, Canara Mahila Bank, 582 Jayanagara 3rd branch 18 LIC Policy No.620921602 standing in the 45,283 name of the accused 19 LIC Policy No.614721137 standing in the 14,064 name of wife of the accused 20 LIC Policy No.621209162 standing in the 8,030 name of wife of the accused 21 Two shares in the name of Smt.Aruna at 200 Sri.Varada Co-operative Society 22 Krishna Jala Nigam Bond 5,000 23 Two bons of S.C.I.C.I Ltd 10,000 24 Two UTI bonds 11,000 25 Deposit for water connection in respect 4,330 of House No.15 BTM Lay Out 26 Deposit for electricity connection in 6,380 respect of house No.15 BTM Lay Out 27 Deposit for electricity connection in 4,200 respect of House No.1876 HSR Lay Out. 28 Deposit for telephone No.26780039 to 2,780 the house No.15 of BTM Lay Out 29 Deposit to the Airtel Mobile 300 No.9980013245 to the house No.15 of 51 Spl.C.C.No.85/2011 BTM Lay Out 30 Membership fee, Karnataka Seva Sanga 100 31 Membership fee, HSR Club 15,000 32 Membership fee Koramangala Club 40,000 33 Veerashaiva Mahasaba 250 34 Regional Public Welfare Charitable and 1,550 Social Service Trust 35 Purchase of Activa Honda KA.51.J.2349 44,118 36 Purchase of Muruthi Zen Car KA.05.MV 4,12,458 2349 37 Purchase of Yamaha Motor cycle 48,000 KA.15.E.457u4 38 Purchase of Hero cycle 1,000 39 Gold ornaments totally weighing 616.35 4,13,080
grams found at the time of search of the house of the accused 40 Silver articles found at the time of search 58,893 of the house 5839.380 41 House hold articles, Electronics, 5,57,188 Electricals and other articles found at the time of search of the house of the accused 42 Shankar Traders Partner amount 1,00,000 43 GPF Account No.PW 22584 deducted out 2,15,008 of salary 44 KGID Policy No.553656, 886050, 25,990 1183205 45 LIC Policy Nos 1)623730967, 2) 1,25,836 623747820, 3)623898328, 4 623820691 46 E.G.I.S deducted out of salary 15,200 47 N.S.C deducted from salary 4,900 Total 69,63,177 52 Spl.C.C.No.85/2011
31. The learned counsel for the accused has argued the investigating officer has taken the spilled over asset at the time of commencement of check period i.e., from 18.07.1983 to 01.01.1994 and the asset acquired by the wife of the accused from the date of her marriage till the commencement of check period i.e., from 4.7.1988 to 01.01.1994. Learned counsel for the accused further argued that the accused had declared 350 grams Gold, 1500 grams silver, one motor cycle, one colour television together valuing Rs 1,63,000/- in his Assets and Liabilities statements for the year 1992-93. He further argued that the investigating officer in his final report has stated that the accused was found in possession of 616.35 grams of gold and the goldsmith valued the said gold at Rs 800/- per gram amounting to Rs 4,93,080/- however deducted only 100 grams instead of 350 grams.
32. A perusal of the final report at page 44 it is clearly mentioned that totally 206.26 grams of gold ornaments found in the house of the accused and 410.09 53 Spl.C.C.No.85/2011 grams found in the Locker No.81 of State Bank of Mysore valuing to Rs.4,93,080/-. The accused has shown in his Assets and Liabilities statements for the years 1991 to 1993 that he received gold from his father-in-law and gifts from relatives and declared 250 grams, 270 grams and 350 grams respectively. The accused examined his mother-in-law Susheelamma as DW 1 and she deposed that at the time of marriage, her husband gave 25 tholas of gold, one and half KG silver articles to the accused. Learned Public Prosecutor submits that the accused has not produced any documents to show from where the said gold ornaments were purchased and what are all the gold ornaments given by his father-in-law is not clearly explained by the accused in the Assets and Liabilities statements. The accused has declared the said gold and silver ornaments in his Assets and Liabilities Statements. Therefore, the investigating officer has wrongly included the value of the said gold ornaments i.e., 25 tholas of gold amounting to Rs 2,00,000/- into the assets of accused acquired during check period. 54 Spl.C.C.No.85/2011
33. Learned counsel for the accused has argued that the Engineering Section of the Lokayuktha has estimated the construction of the building at Rs 10,28,000/-. The accused is a Civil Engineer by profession and he has supervised the construction of the house and hence 10% of the said amount i.e., amount of Rs 1,02,800/- required to be deducted and therefore the value of the building is Rs 9,25,000/. However, the investigating officer has wrongly taken the cost of construction as Rs 25,45,000/- on the ground that the accused has made a declaration that he has taken loan of Rs 25,45,000/- for construction of the house.
34. Learned Public Prosecutor submits that the Bank statement shows that the accused had availed a loan of Rs 25,45,000/- for construction of the house. Even though the technical report shows that the construction value was Rs 10,58,000/-, housing loan availed by the accused for the construction of the said house is Rs 25,45,000/- and hence 55 Spl.C.C.No.85/2011 the Investigating Officer calculated the said amount as the value of the house.
35. The materials placed before the court shows that the accused has raised Rs. 15 lakh loan from Allahabad Bank, K.G.Road branch, Rs.1,00,000/- from Umamaheshwarappa, Rs 1,00,000/- from Nandeesha, Rs 1,00,000/- from V.G.Basavaraju, Rs 7 lakhs from Susheelamma and Rs 1,00,000/- from Chitradurga Grameena Bank. The accused entered the witness box and got himself examined as DW7 and deposed that he as a diploma holder in civil engineering he himself supervised the construction of his two houses which diminished the construction cost by 10-
12%. He also states that he had availed loans from other sources, but he does not say that those loans were particularly raised to build the said house. But he had availed Rs. 15,00,000/- as housing loan for building this house from Allahabad Bank, but the remaining loans is not raised particularly for this house. The value of a property has to be decided as per the loan raised from Allahabad Bank. 56 Spl.C.C.No.85/2011 Therefore, the investigating officer ought to have taken the value Rs 15,00,000/- as assets of the accused instead of Rs. 25,45,000/-. Similarly, the house of the accused situated at BTM Layout is valued at Rs. 11,25,000/- but the supervision cost of Rs. 1,12,500/- being 10% of the value of the building is to be deducted from the said value since the accused being a civil engineer had supervised the construction of the said house. Therefore, the value of said asset would come to Rs. 10,12,500/-.
36. The learned counsel for the accused has argued that the value of colour television at Rs 13,000/- has to be excluded since the said television is purchased prior to the check period. Since the colour television is purchased prior to the check period the value of Rs. 13,000/- ought to have been deducted from the assets.
37. The learned counsel for the accused argued that the accused purchased a motor bike for a sum of Rs 35,000/- in 1995, however, the investigating officer has 57 Spl.C.C.No.85/2011 valued the motor bike at Rs 48,000/- as per the letter issued from a dealer and he says that he do not know the exact price of the motor bike as on date of purchase but he says that approximately it would come around Rs. 48,000/- and based on that the Investigating Officer has taken the value of motor bike as Rs. 48,000/- It is not in dispute that the said vehicle was purchased in the year 1995 and the dealer is also not sure with respect to the actual price of the bike and hence the value of the bike has to be considered as declared by the accused in his Assets and Liabilities statements which he had submitted to his department much earlier to the date of raid. Since the investigating officer has taken the value of the motor bike at Rs 48,000/-, he ought to have deducted Rs 13,000/- from Rs 48,000/- and only Rs 35,000/- to be considered.
Sl.No. Particulars of the assets Value 1 Value of site No.15 BTM Lay Out, 3,88,000 Bengaluru 2 Value of the building in Site No.15 BTM 10,12,500 Lay Out, Bengaluru 58 Spl.C.C.No.85/2011 3 House No.1876, HSR Lay Out, 6,15,000 Bengaluru 4 Value of the building in No.1876 HSR 15,00,000 Lay Out, Bengaluru 5 Value of the site No.438/3, & 438/4 78,000 Talya village, Holalkere Tq, Chitradurga 6 Account No.5930 in Indian Bank, Sagar 681 7 Account No.2526, Chitradurga 1,710 Grameena Bank 8 Account No.19636, Canara Bank Sagar 5,288 9 Account No.6051, Allahabad Bank, 3,009 K.G.Road 10 Account No.37637 Syndicate Bank, 991 Manipal 11 Account No.0000093, Chartered Co- 1,703 operative Bank, Bengaluru 12 Account No.54007058384, State Bank 167 of Mysore, BTM Lay Out, 13 Account No.5403466166, State Bank of 3,586 Mysuru, M.S.Building 14 Account No.21429 (G.R.Aruna) Canara 1,431 Bank, Sagar 15 Account No.09110005259 (G.R.Aruna), 276 State Bank of Mysuru, B.T.M Lay Out 16 Account No.849 Karnataka Bank, B.T.M 2,615 Lay Out 17 Account No.821, Canara Mahila Bank, 582 Jayanagara 3rd branch 18 LIC Policy No.620921602 standing in 45,283 the name of the accused 19 LIC Policy No.614721137 standing in 14,064 the name of wife of the accused 20 LIC Policy No.621209162 standing in 8,030 the name of wife of the accused 21 Two shares in the name of Smt. Aruna 200 at Sri.Varada Co-operative Society 59 Spl.C.C.No.85/2011 22 Krishna Jala Nigam Bond 5,000 23 Two bons of S.C.I.C.I Ltd 10,000 24 Two UTI bonds 11,000 25 Deposit for water connection in respect 4,330 of House No.15 BTM Lay Out 26 Deposit for electricity connection in 6,380 respect of house No.15 BTM Lay Out 27 Deposit for electricity connection in 4,200 respect of House No.1876 HSR Lay Out.
28 Deposit for telephone No.26780039 to 2,780 the house No.15 of BTM Lay Out 29 Deposit to the Airtel Mobile 300 No.9980013245 to the house No.15 of BTM Lay Out 30 Membership fee, Karnataka Seva Sanga 100 31 Membership fee, HSR Club 15,000 32 Membership fee Koramangala Club 40,000 33 Veerashaiva Mahasaba 250 34 Regional Public Welfare Charitable and 1,550 Social Service Trust 35 Purchase of Activa Honda KA.51.J.2349 44,118 36 Purchase of Muruthi Zen Car KA.05.MV 4,12,458 2349 37 Purchase of Yamaha Motor cycle 35,000 KA.15.E.4574 38 Purchase of Hero cycle 1,000 39 Gold ornaments totally weighing 616.35 2,13,080 grams found at the time of search of the house of the accused deducting the value of 250 grams 40 Silver articles found at the time of 58,893 search of the house 5839.380 41 House hold articles, Electronics, 5,57,188 Electricals and other articles found at the time of search of the house of the accused 60 Spl.C.C.No.85/2011 42 Shankar Traders Partner amount 1,00,000 43 GPF Account No.PW 22584 deducted 2,15,008 out of salary 44 KGID Policy No.553656, 886050, 25,990 1183205 45 LIC Policy Nos 1)623730967, 2) 1,25,836 623747820, 3)623898328, 4 623820691 46 E.G.I.S deducted out of salary 15,200 47 N.S.C deducted from salary 4,900 Total 55,92,677
38. Expenditure of the Accused:
Regarding the expenditure, the accused has disputed the food and other invisible expenditure of the accused and his family members calculated by the Investigating Officer. The learned counsel has vehemently argued that the investigating officer has taken Rs 7,63,237/- as expenditure of the accused and his family members. The accused claims that he belongs to an agricultural family. They own agricultural land and cultivate the land. They derive almost all food grains, vegetables, etc., from their own land and hence the expenditure for food diminish by 20% and hence 61 Spl.C.C.No.85/2011 Rs. 1,52,647/- is to be deducted from the food expenditure of the accused. From the available materials on record it is revealed that the accused is an agriculturalist and earned income from his agricultural land hence the point raised by the counsel for the accused that 20% of the amount from the food and other expenses of the accused and his family members has to be deducted is appreciated therefore the family expenditure is Rs. 6,10,590/-. The next point the counsel for the accused brought to the notice of this court is that the marriage expenditure of Rs. 9,000/- incurred by the accused is wrongly taken by the Investigating Officer, since the marriage of the accused was solemnized in the year 1988, which is prior to the check period. The Investigating Officer has conceded this fact when he deposed with respect to the expenditure of the accused and he testifies that it was a mistake on his part to include the said amount in the expenditure of the accused. Therefore, this amount Rs. 9,000/- is to be deducted from the total expenditure and hence the total expenditure comes to Rs 27,28,001/- 62 Spl.C.C.No.85/2011
Sl.No. Heads Amount (Rs)
01. Assets during the check Rs.55,92,677
period
02. Expenses incurred during Rs.27,28,001
check period
03 Sum of assets and Rs.83,20,678
expenditure
03. Income earned Rs.77,67,239
04. Disproportionate Assets Rs.5,53,439
05. Percentage 7.12%
Therefore, the accused is found in possession of asset disproportionate to his known source of income to an extent of 7.12%. The Hon'ble Supreme Court has held in Krishnanand Vs. State of Madhya Pradesh reported in (1977) 1 SCC 816 that "10% of the disproportionate assets need to be deducted in arriving at the finding that the accused had disproportionate assets". Accordingly, I answer point No.1 in the Negative.63 Spl.C.C.No.85/2011
39. Point No 2: In the result, I proceed to pass the following:
ORDER Acting under section 248(1) Cr.P.C, the accused C.R.Narappa is acquitted of the offence punishable under Section 13(1)(e) read with section 13(2) of Prevention of Corruption Act, 1988.
His bail bond and surety bond stands cancelled.
The seized documents and material shall be returned to the complainant after appeal period is over.
(Typed on my online dictation by the Typist-Copyist, printout taken, corrected, signed and then pronounced by me in open Court on this the 27th day of April, 2018) sd/-
[MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 64 Spl.C.C.No.85/2011 ANNEXURE List of witnesses examined on behalf of the prosecution:
PW.1: M.G.Subba Rao PW.2: M.S.Ravikumar PW.3: M.Siddalingappa PW.4: K.Srinivas PW.5: Purandar V.Jannu PW.6: Maheshwarappa PW.7: B.B.Lakshmegowda PW.8: K.C.Lakshminarayana PW.9: K.R.Devaraju PW.10: Smt.D.Renuka PW.11: Jayadeva Prakash
List of documents marked on behalf of prosecution:
Ex.P1: Source Report dtd 7.6.2006
Ex.P1(a): Signature of PW.1
Ex.P.2: Memo dtd 8.6.2006
Ex P2(a) : Signature of PW1
Ex.P3: FIR in Crime No.20/2006
Exs P3(a) & P3(b): Signatures of PW1
Ex P4: Search Warrant.
Ex P5 : Mahazar dtd 9.6.2006
65 Spl.C.C.No.85/2011
Ex.P5(a): Signature of PW 1
Ex P5(b) : Signature of PW2
Ex P6 : S.B.M. Statement of account of accused Ex P7 : Statement of account of wife of accused Ex P8 : Mahazar dtd 19.6.2006 Ex P8(a) : Signature of PW1 Ex P8(b) : Signature of PW3 Ex P9 : Syndicate Bank statement of account of accused Ex P10 : Letter of Syndicate Bank, Sagar Ex P11 : Letter of St.Joseph Higher & Primary School/expenditure Ex P12 : Education expenses of son of the accused at Sudarshan Vidhya Mandir Ex P 13: Education expenses of son of the accused at Sudarshan Vidhya Mandir Exs P14 & 15: Bank accounts statement of Smt.Aruna G.R. (Canara Bank) Exs P16 & 17: Bank statements of accused (Canara Bank) Ex P18 : Bank account statement of accused Ex P19 : 'B' register extract Ex P 20 : Letter of RTO (South) Bengaluru Ex P 21: Another letter dtd 20.06.2006 Ex P 22: 'B' register extract of KA.05.MV 2349 Ex P23 : Letter of Chitradurga Grameena Bank 66 Spl.C.C.No.85/2011 Ex P 24: Statement of account of the accused. Ex P 25 : Letter of BSNL Ex P26 : Statement of BSNL Ex P27 : Letter of Arun Motors, Shimoga Ex P28 : Consumption water meter/BWSSB Ex P29 : Letter of RTO Bhannerghatta, Bengaluru Ex P30 : Report of RTO Bhanneraghatta Ex P 31 : 'B' Register extract Ex P 32 : Letter of Airtel dtd 7.7.2006 Ex P33 : Letter No.2 Building division, Bengaluru Ex P 34 to 38 : Copies of assets and liabilities statements of accused.
Ex P39 : Letter of reliance communication Ex P40 : Mobile hand set bills statement Ex P41 : Letter of Vijaya College dtd 10.7.2006 Ex P 42 : Letter of Koramangala club dtd 25.7.2006 Ex P 43 : Letter of Taralabalu Jagadguru Bruhanmatt Ex P 44: Copy of receipt Ex P 45: Letter of BBMP - Payment of building tax Ex P 46: Letter of Sub-Registrar, Sheshadripuram Ex P47 : Copy of sale deed Exs P48 to 51: Covering letter, Registration Extract, E.C. Letter, Registration fee Exs P52 & 53 : KGID letter with particulars of KGID Bonds 67 Spl.C.C.No.85/2011 Exs P54 and 55 : KA 05 MV 2349 vehicle details from maruthi dealers Exs P56 to 58 : PW22584 GPF account details from Accountant General Ex P59 : letter from Revenue Inspector's office HSR complex Ex P60 : Income tax returns (Xerox) of the accused Ex P61 : Salary and allowance particulars of accused BBMP Bommanahalli Ex P62 : Accused salary particulars at No.7 building division, Bengaluru.
Ex P63 : Income tax returns of wife of the accused. Ex P64 : House valuation report Ex P64(a) : Signature of PW4 Ex P65 : The HSR club Membership details Ex P66 to 67: service particulars of the accused Ex P68: Karnataka Engineers Seva Sanga/Member ship and other details.
Ex P69: Passport details of accused and his wife. Ex P70 : GPF Money loan details.
Ex P71 : Shankar traders letter dtd 12.7.2007 with documents.
Exs P72 & 73: Karnataka Bank account of wife of accused details Ex P 74 : Regional public welfare charitable membership details.68 Spl.C.C.No.85/2011
Ex P75 : Regional public welfare charitable membership Certificate Ex P76 : Details of vehicle KA.51.J.2349 Ex P77: Canara bank account of wife of the accused. Ex P78 : LIC policy details of AGO Ex P 79: HDFC Loan details dtd 3.8.2007 Ex P80 : Report of the Director of Agriculture, Chitradurga Ex P80(a) : Signature of PW 10.
Ex P81 : TATA power rent details of Smt.Aruna Ex P82 : BDA letter dtd 16/21.8.2007 Ex P83 : SBM M.S.Building account details Ex P84 : UTI investment details Ex P85 : BBMP Bommanahalli Rage dtd 29.11.2007 Ex P 86 : Tahasildar, Holalkere pahani dtd 7.11.07 Ex P 87: Talya grama survey no.220/2, 188/11, 189/2 Horticulture expenditure profit details,. Ex P 87(a) : Signature of PW 9 Ex P88 : GRASIM Industries Letter dtd 6.10.2007 Ex P 89 : Sub-Registrar, Koramangala dtd 01.12.2007. Ex P 90 : Requisition letter dtd 8.6.2006 Ex P 91 : FSL report with connected papers Ex P 92 : Proceedings of Karnataka Lokayuktha dtd 12.3.08 Ex P 93: Report of director of horticulture Ex P93(a) : Signature of PW9 Ex P94 : Letter of Sharavathi Gas Service dtd 5.7.2008 69 Spl.C.C.No.85/2011 Ex P 95 : Proceedings of Karnataka Lokayuktha dated 17.1.2009 Ex P96 : Letter of horticulture Department, Holalkere dtd 15.7.2008 with annexures Ex P96(a) : Signature of PW 19 Ex P 97 : Kannan Borewell letter Ex P98 : BESCOM Electrical charges details Ex P99 : H.P Gas, Sagar Gas expenditure details Ex P100 : Alahabad Bank loan details Ex P101: Shiva Sahakari Bank accused count No.4250 details Ex P102: Canara Bank Basavaraj account details Ex P103 : Manjunath Gas (HP Gas) Statement Ex P104 : Loan details from SBM - BTM Lay Out Ex P105 : LIC letter dtd 15.10.2008 Ex P 106 : LIC Malleshwararam Branch letter Ex P107 : LIC Shikaripura branch policy details Ex P108 : LIC Sarakki branch policy details Ex P 109: Letter of Sub-Registrar, Jayanagara Branch Ex P 110 : LIC Jayanagara branch policy details.
Ex P 111: Canara Bank loan details of Susheelamma Ex P 112: Krishna Bhagya Jala Nigam Bonds details Ex P 113: Details of Horticulture expenditure Ex P113(a) : Signature of PW 9 Ex P 114 : proceedings of Superintendent of Police Karnataka Lokayuktha 70 Spl.C.C.No.85/2011 Ex P 115 : details of account HDFC Kodihalli Ex P 116: Letter of P.I Rudrappa Ex P 117: Letter of Vyavasaya Seva Sahakara Sangha Vadnalu Ex P 118 : KGID Loan details Ex P 119: Copy of order of Superintendent of Police and APMC market details Ex P 120: Letter of Director of Statistics Ex P 120(a) : Signature of PW 11 Ex P 121: Final report Ex P 122: Sanction order dtd 23.02.2011 Ex P 123: Copy of the mjahazars and pahanis Ex P 124: Requisition letters issued by Subbarao Ex P 125: BESCOM Letter dtd 29.6.2006 Ex P 126: SBI Sagar Branch, S.B. Account details Ex P 127 : Chartered Co-op.bank S.B account details Ex P 128: APMC Chitradurga recdeipt dtd 3.2.2000 Ex P129 : APMC Chitradurga receipt dtd 15.12.2000 Ex P130: Kuddur M.Shanthappa & company List of material objects marked on behalf of the prosecution:
NIL 71 Spl.C.C.No.85/2011 List of witnesses examined on behalf of accused:
DW 1 : Smt. Susheelamma DW 2 : Smt.G.R.Aruna DW 3: Barath Jayappa DW 4 : V.G.Basavaraj DW 5 : M.C.Nandeesh DW 6 : Thippeswamy DW 7 : C.R.Narappa List of documents marked on behalf of accused:
Nil sd/-
[MANJULA ITTY] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU.