Bangalore District Court
The State Of Karnataka vs E. Kenchegowda on 23 March, 2020
Spl.C.525/2014
1
IN THE COURT OF THE LXXVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE, CITY
CIVIL COURT, BENGALURU (CCH77)
Present: SRI RON VASUDEV,
B.Com.,LL.B(Spl).,
LXXVI Addl.City Civil & Sessions Judge,
Special Judge, City Civil Court, Bengaluru.
Dated this the 23rd day of March 2020.
SPL.C.NO.525/2014
Complainant: The State of Karnataka,
by Police Inspector, Karnataka
Lokayukta Police Wing, City
Division, Bengaluru,
(Represented by Spl.Public
Prosecutor)
vs
Accused: E. Kenchegowda, S/o Eraiah,
49 years, Inspector of Police,
Yelahanka Police Station,
Bengaluru City.
Presently working in P.R.C. Unit,
Regional Office,
Nagasandra Post, Bengaluru.
Crime No. 55/2012
Spl.C.525/2014
2
Check period 26081996 to 22062012
Date of report of offence 21062012
Name of First Informant Girish S., Dy.S.P., Karnataka
Lokayuktha, City Division,
Bengaluru.
Date of commencement of 8022017
trial
Date of closure of 11092019
evidence
Offences complained of Section 13(1)(e) r/w Sec.13(2) of
Prevention of Corruption Act,1988
& Secs.177, 193 & 465 of IPC.
Finding of the Court Accused is convicted for the
offences under Sec.13(1)(e) r/w
Sec.13(2) of P.C. Act and 177 of IPC
only.
JUDGMENT
In nutshell prosecution case is that, accused joined the service as SubInspector of Police in Karnataka Police department on 26081996 and during his tenure he worked at Mysore, Haveri, Hangal, Attibele and Hebbagodu Police Stations as Police SubInspector and he was promoted as Inspector on 25112002 and discharged his duties as such in Spl.C.525/2014 3 Kolar and other Police Stations of Bengaluru. That then Dy.S.P. Girish S.,(PW.4) of Lokayuktha police, Bengaluru City Division received credible information about amassing of assets and pecuniary resources by this accused disproportionate to his known sources of income, therefore he prepared a source report by making discreet enquiry and placed it before S.P., City division, Karnataka Lokayuktha, Bengaluru. As per the said source report accused amassed assets worth Rs.1,10,00,000/, had incurred expenditure of Rs.15,00,000/ thereby total value of assets and expenditure of him stood at Rs.1,25,00,000/ against his approximate income of Rs.50,00,000/. Thus he alleged that the accused herein has amassed assets to the tune of Rs.75,00,000/, which is 150% in excess of his known sources of income.
2. Based on the said source report the said S.P., vide his order dated 20062012 directed the Police Inspector - P. Narasimhamurthy (PW.9) of Bengaluru City division, to register the case against the accused and to investigate. In accordance with the said order case was registered at Lokayuktha Police CR No.55/2012 for the offences punishable under Sec.13(1)(e) r/w Sec.13(2) of the P.C. Act 1988 investigation was taken up. Prosecution alleges that the said Spl.C.525/2014 4 Investigation officer (PW.9) obtained three search warrants to search three different places viz., (i) the rented house of the accused situating at No.94, AGP Layout, Opposite to Best Beginner School, Mahalakshmi Layout, Bengaluru; (ii) house of one Lokesh (relative of the accused), near Shaneshwara temple, Thindlu, Vindyaranyapurm and (iii) house of B. Lakshmipathireddy, No.35, 1st 'A' Main, Yelahanka New Town. The first search warrant was taken by the very PW.9, whereas Inspector Yogesh was entrusted with the search warrant to search the house of Lokesh, whereas the third search warrant was entrusted to Inspector Niranjan Kumar. Upon search of the rented house of the accused and also the house of Lakshmipathireddy, in presence of the panchas, the said officers found several assets, ornaments, property documents and bank account details. They were seized under mahazars, but in the house of Lokesh, nothing as such was traced. Later continuing the investigation, collecting the various documents and after recording statements of some of the witnesses, on his transfer to Mangalore, the PW.9 handed over further investigation to H.P. Puttaswamy (PW.10) - another Police Inspector. As per the authorization of S.P., Karnataka Lokayuktha dated 3102013, the said PW.10 continued the investigation, he too collected the documents recorded the Spl.C.525/2014 5 statements of witnesses and called upon the accused to furnish his schedule information. Having gone through them and also the evidence collected by his predecessor in office (PW.9) and the evidence collected by him, the PW.10 prepared the final investigation report and the charge sheet. It is alleged that while submitting his schedule information suppressing the agricultural income and income derived from sheep rearing that were declared in his APRs for the years 200001, 200102 accused furnished false and inflated incomes with reference to the said two sources of income by submitting fabricated APRs. Therefore prosecution alleges that by furnishing false and fraudulent documents to the lawful authority i.e., to the Investigation Agency, accused also committed offences punishable under the provisions of Indian Penal Code. Thus after conclusion of the investigation and upon obtaining sanction to prosecute him from the competent authority, charge sheet was laid against him by PW.10 not only for the offence punishable under Sec.13(1)(e) r/w Sec.13(2) of the P.C. Act, even for the offences punishable under Secs.177, 193 and 465 of IPC.
3. It is the precise case of the prosecution that after joining his service on 26081996 till the raid was conducted on Spl.C.525/2014 6 2262012 i.e., during the check period, accused made assets in his name and also in the name of his family members to the tune of Rs.1,39,94,443.90 paise and during that check period he incurred expenditure of Rs.58,25,768.16 paise and his known source of income during the said period was Rs.93,82,155.23 paise. Thus his total assets and expenditure stood at Rs.1,98,20,212.06 paise thereby suggesting that he could not satisfactorily account the pecuniary sources and properties to the extent of Rs.1,04,38,056.83 paise, which is Rs.111.25% in excess of his said known sources of income. It is further alleged that during the investigation the Investigation Officer obtained the APRs of the accused from his department and when he called upon the accused to furnish the schedule information, in contrary to the APRs submitted to his department and income/s declared therein, accused furnished inflated and additional incomes. As mentioned above in his APR for the year 200001 accused declared his agricultural income at Rs.50,000/ without declaring any income towards sheep rearing. Likewise in the APR of 200102 he declared his agricultural income at Rs.50,000/ and again without disclosing any income from sheep rearing, that being the case in the schedule information provided to the Investigation Officer for the year 200001 he declared agricultural income at Spl.C.525/2014 7 Rs.2,00,000/ and income from sheep rearing at Rs.1,50,000/. Again in the APR furnished to the Investigation Officer for the year 200102 he declared agriculture income at Rs.2,00,000/ and income from sheep rearing and sale of sheep at Rs.1,75,000/. Therefore it is alleged that, knowingly and intentionally in order to mislead the investigation agency accused submitted false and fraudulent documents and committed offences under the Indian Penal Code as mentioned above.
4. On receipt of the charge sheet cognizance of offences was taken and summon was issued to the accused, he appeared and obtained bail and copy of the charge sheet was supplied to him. Nevertheless law provides for hearing before charges, as generally done in cases of this nature, accused filed an application under Section 227 of Cr.P.C., seeking to discharge him. It was heard and disposed of by my predecessor in office vide her order dated 30012017. Thereafter charge was framed and when it was read over to him, he pleaded not guilty and claimed to be tried. So in order to prove the charge prosecution examined PW.1 to 10, out of 85 witnesses cited in the charge sheet, and got exhibited Exs.P1 to P89 and closed its side. Then accused was examined under Sec.313 Cr.P.C., by Spl.C.525/2014 8 my predecessor in office and he was permitted to lead defence evidence as wished by him. Accordingly he examined DW.1 to DW.12, including himself as DW.9, and got exhibited Exs.D1 to D18. Then hearing the arguments of the prosecution and accused and by receiving the written arguments of the accused, my said predecessor in office reserved the matter for judgment. In the meanwhile the accused filed application under Sec.311 of Cr.P.C., seeking to summon the sanctioning authority (CW.2), but the said application was summarily rejected on 24012019 by hearing him alone, by my said predecessor. Feeling aggrieved by the same accused filed Crl.Petition No.409/2019 and it came to be disposed on 2372019 with certain observations. Then getting alerted prosecution filed application under Sec.311 Cr.P.C., to summon the very same sanctioning authority (CW.2) and to examine him on its behalf. Taking note of the subsequent events which unfolded, the said application was allowed and prosecution was permitted to examine that witness. Consequently he was examined as PW.11 and thereafter additional statement of the accused was recorded under Sec.313 Cr.P.C. Then again prosecution as well as defence counsel were heard. In modification of his earlier written arguments accused filed another set of written arguments. In this background the points that would arise for Spl.C.525/2014 9 my consideration are:
1) Whether the prosecution proves beyond all reasonable doubt that accused being a public servant during the check period i.e., from 26081996 to 22062012 possessed properties and pecuniary resources in his name and in the names of his family members to the tune of Rs.1,39,94,443.90 and incurred expenditure to the extent of Rs.58,25,768.16 against his income from all sources at Rs.1,98,20,212.06 and thereby possessed properties disproportionate to his known sources of income to the extent of Rs.1,04,38,056.83 i.e., at 111.25% and he could not satisfactorily account for the same and thereby committed criminal misconduct as contained in Sec.13(1)(e) and punishable under Sec.13(2) of the P.C. Act ?
2) Whether the prosecution further proves beyond all reasonable doubt that accused being legally bound to furnish correct information to the Investigation Officer knowingly furnished false information through his schedule information and there by committed an offence punishable under Sec.177 of IPC ?
3) Whether the prosecution further proves beyond all reasonable doubt that accused intentionally submitted fabricated and false APRs knowing fully well that they will be Spl.C.525/2014 10 used as evidence in the judicial proceedings to be initiated against him and thereby committed an offence punishable under Sec.193 of IPC ?
4) Whether the prosecution further proves beyond all reasonable doubt that accused being a public servant dishonestly or fraudulently against the APRs submitted to his department for the years 200001 and 200102 declaring his agricultural income at Rs.50,000/ each and without declaring any income from the sheep rearing, by fabricating false APRs for the said years declared agricultural incomes at Rs.2,00,000/ each and sheep rearing income at Rs.1,50,000/ and Rs.1,75,000/ respectively and submitted to the Investigation Officer and thereby committed an offence punishable under Sec.465 of IPC ?
5) What order ?
5. Having gone through the materials so made available, my findings on the above points are as under : POINT NO.1: Partly in the affirmative POINT NO.2: In the affirmative POINT NO.3: In the negative POINT NO.4: In the negative Spl.C.525/2014 11 POINT NO.5 : As per final order for the following :
REASONS
6. POINT NO.1 : Before I start my discussion on the point in hand, it is necessary to have a birds eye view on the G.tree of family of the accused in order to understand the prosecution case as well as the defence of the accused properly. For this I refer to the page No.628 of Ex.P82(C) (File No.7 volume No.4), the schedule information furnished by the accused and extract only the relevant portion of the said G.tree and it is as under.
Kenchaiah | | Eraiah One more son and seven daughters.
| | | | | | | | Chikkamma Laxamma Nagamma Kenchegowda (accused) Gangamma Rangamma Ranganath + Gangamma + Vanajaxi | | | Praveen Kumar Chethan Kumar Spl.C.525/2014 12 It is not in dispute that when the raid was conducted accused was working as Inspector of Yelahanka Police Station. It is also not in dispute that he joined the service of Karnataka State Police as a SubInspector on 26081996 and raid was conducted at his residence and on the residences of his driver and well wisher on 22062012. So there is no ambiguity that check period in the instant case commences on 26081996 and it ends on 22062012. With these limited inputs I will try to cull out the prosecution evidence and also the explanation offered by the accused and would make an earnest effort to find out as to who stands to the truth. At the same time in order to maintain brevity in this judgment, instead of reproducing the arguments of learned Special P.P. for the prosecution and Sri P.N.H, Advocate for the accused and thereafter record my findings on them, I prefer to take up their submissions as and when they would come up for discussion and record my findings on them. I hope this preface would be enough to carry on the further journey of the evaluation of oral and documentary evidence placed by both side in the context of the judgments rendered by the Hon'ble Apex Court and High Court, relied by them. Since no oral argument or written Spl.C.525/2014 13 submission was made by the accused or by the prosecution regarding the validity of sanction or adequacy of it, and similarly on the duration of check period, I refrain from making any observation on those aspects.
7. Through out the web criminal jurisprudence it is often said that accused is deemed to be innocent until the contrary is proved beyond all reasonable doubt. It is also said that, especially in cases of this nature it is for the prosecution to discharge its initial burden of possessing of properties and pecuniary resources by accused disproportionate to his known sources of income and in the event if it so succeeds, then onus would shift to him to offer his explanation. Otherwise he need not required to offer any explanation to satisfactorily account for possession of such properties and pecuniary resources. I am making this observation in the light of the decision of Hon'ble Supreme Court reported at AIR 2017 SC 3713 in the case of Vasantharao Guhe vs. State of Madhyapradesh, relied by the accused. With this fundamental thing one has to thoroughly examine, whether prosecution is able to discharge its initial burden so as to call upon the accused to prove his innocence. In this regard I have extracted the assets, expenditure and income of the accused as prepared by the Investigation Officer Spl.C.525/2014 14 with the summary table as made out in the final investigation report (Ex.D4).
STATEMENT OF ASSETS AND THEIR VALUES
Sl. Particulars of Assets Value
No. Rs.
1. Site No.659, HMT Layout, Nagasandra, 13,98,500
Bengaluru purchased in the name of Smt.
T. Gangamma (wife of accused)
2. Cost of building in Site No.659, HMT 57,50,903
Layout, Nagasandra, Bengaluru in the
name of Smt. T. Gangamma.
3. Cost of electric equipments and electric 1,69,882
connection to the above said building.
4. Value of site No. 54/9/137/2 of Sane 2,00,000
guruvanahalli, Kamakshipalya, Bengaluru purchased in the name of Smt. T. Gangamma.
5. Building value in Site No. 54/9/137/2 of 36,86,143 Sane guruvanahalli, Kamakshipalya, Bengaluru in the name of Smt. T. Gangamma.
6. Value of agricultural lands in the native 0 place in the name of Sri Eraiah
7. Value of residential house and farm house 0 in the name of Sri Eraiah at his native place.
8. Amount in S.B.A/c No.2737101012721, 4,92,948 Canara Bank, GKVK Branch, in the name of Smt. T. Gangamma
9. Amount in S.B. A/c No.2737101012997, 1,29,889 S.B.M., GKVK branch, in the name of the accused.
Spl.C.525/2014 15
10. Amount in S.B. A/c No.64043612452, 22,983 Canara Bank, Sahakaranagara branch, in the name of the accused.
11. Amount in S.B. A/c No.559010100044323, 49,169=67 Axis Bank, Rajajinagara branch, in the name of the accused.
12. Amount in S.B. A/c No.10356468492, S.B.I, 4167=23 Cauvery bhavan branch, in the name of the accused.
13. Hero Honda Karizma two wheeler 95,287 bearing No.KA04HE197 in the name of accused.
14. Maruthi Swift Dezire car bearing No.KA 002MF4790 found during the search of rented house of accused.
15. Cash found during the search of above 1,35,800 said house.
16. Gold ornaments seized from the said 9,12,750 accused's house
17. Silver items seized from the said house 1,19,050
18. Value of furniture and home appliances 5,94,645 found in the said house.
19. BESCOM deposit for temporary electric 5,220 connection to the building at No.659, HMT Layout, Nagasandra, Bengaluru in the name of Smt. T. Gangamma.
20. BESCOM deposit, application fee and 26,680 development charges for temporary electric connection to the ground floor building at No. 54/9/137/2 of Saneguruvanahalli, Kamakshi palya, Bengaluru in the name of Smt. T. Gangamma.
21. Amount paid to temporary electrical 3,637 connection to site No. 54/9/137/2, Spl.C.525/2014 16 Bengaluru in the name of Smt. T. Gangamma.
22. Deposit in respect of Telephone 1,250 No.23497601 in the name of Smt. T. Gangamma.
23. Membership fee paid to Shakthi Hills 5,000 Resorts Pvt.Ltd., in respect of Member No.S.R./531/10
24. Membership fee paid to Estate Club, 14,600 Hosur road, Bengaluru towards Member No.K109.
25. Deposit amount towards Cooking gas 1,900 No.18722
26. Chit amount towards chit 1,74,040 No.LT019TJN/44 in the name of Smt. T. Gangamma TOTAL ........... 1,39,94,443=90 STATEMENT OF EXPENDITURE Sl. Particulars of Expenditure Expenditure No. Rs.
1. Registration and stamp duty paid to 1,31,755 purchase site No.659, HMT Layout, Nagasandra, Bengaluru purchased by Sri Eraiah in the name of Smt. T. Gangamma
2. Registration and stamp duty paid to the 2,140 Gift deed towards Site No. 54/9/137/2, Sane guruvanahalli, Kamakshipalya, Bengaluru and Site No.659, HMT Layout, Nagasandra, Bengaluru in the name of Smt. T. Gangamma.
3. Tax paid to BBMP towards Site No.659, 4,085 HMT Layout, Nagasandra, Bengaluru Spl.C.525/2014 17
4. Charges paid towards plan sanction in 13,700 respect of Site No.659, HMT Layout, Nagasandra, Bengaluru in the name of Smt. T. Gangamma.
5. Tax paid towards Site No.659, HMT 8,591 Layout, Nagasandra, Bengaluru by the father of the accused.
6. Registration and stamp duty paid to 20,360 purchase site No. 54/9/137/2, Sane guruvanahalli, Kamakshipalya, Bengaluru purchased by Sri Eraiah in the name of Smt. T. Gangamma
7. Tax paid to BBMP in respect of Site No. 6,156 54/9/137/2, Sane guruvanahalli, Kamakshipalya, Bengaluru
8. Amount paid to obtain water connection 12,336 to a rented house No.94, AGP Layout, 2 nd Stage, near Best beginner school, Mahalakshmi layout, Bengaluru.
9. Water charges paid during service of 3,300 accused at various places
10. Amount paid towards electricity charges 55,740 to a rented house No.94, AGP Layout, 2 nd Stage, near Best beginner school, Mahalakshmi layout, Bengaluru.
11. Amount paid to BESCOM for temporary 1,260 electric connection during construction of house No.659, HMT Layout, Nagasandra, Bengaluru in the name wife of accused
12. Electricity charges incurred during service 78,500 of accused at various places
13. Fuel charges towards Hero Honda 49,461 Karizma two wheeler No.KA04HE197
14. Insurance policy premium paid towards 1,682 Hero Honda Karizma No.KA04HE197 Spl.C.525/2014 18
15. Usage charges paid towards mobile 2,535=50 No.9686652777 in the name of Smt. T. Gangamma
16. Usage charges paid towards mobile 47=40 No.9740654390 in the name of Sri Chethankumar
17. Usage charges paid towards phone 7,334 No.23497601 in the name of Smt. Gangamma.
18. Loan installment amount paid to Canara 2,66,330 Bank, GKVK branch by wife of accused
19. Chit amount paid towards Margadarshi 19,49,240 Chit fund, Basaveshwaranagara by wife of accused 20. Service charges paid towards SB 668 No.2737101012721 of Canara Bank, GKVK branch in the name of Smt. T. Gangamma.
21. Service charges paid towards SB 83 No.2737101012997 of Canara Bank, GKVK branch in the name of accused 22. Service charges paid towards SB 50 No.64043612452 of S.B.M., Sahakaranagara branch in the name of accused. 23. Service charges paid towards SB 167=33 No.559010100044323 of Axis Bank, Rajajinagara branch in the name of accused. 24. Premium amount paid to LIP Policy 00 No.362103660 in the name of accused 25. Income tax paid by the accused. 26,130 26. Income tax paid by Smt. Gangamma T. 9,420 27. Expenditure towards family during check 8,79,393 period 28. Expenditure towards education of 5,50,985 Spl.C.525/2014 19 Praveenkumar 29. Expenditure towards education of 1,94,275 Chethankumar 30. Private tuition fee paid for PUC education 91,628 of Praveenkumar and Chethankuamr. 31. Rent paid by accused during his service at 4,14,960 different places. 32. Security deposit paid to land lord of 'Siri', 1,50,000 No.94, 3rd main, 2nd cross, AGB Layout, Mahalakshmipura, Bengalore96. 33. Rent paid towards the said rented house. 5,20,830=90 34. Medical expenditure towards cancer 2,69,486=55 treatment of Eraiah and Smt. Kempamma 35. Medical expenditure towards treatment to 41,954=78 Praveenkumar S.K. 36. Medical expenditure towards treatment to 5,839=70 Chethankumar S.K. 37. Medical expenditure towards treatment to 1,305 Smt. T. Gangamma 38. Medical expenditure paid to Vasan Eye 150 care towards treatment of Smt. T. Gangamma 39. Medical bill paid to Sampran Health 600 Centre towards treatment of Smt. T. Gangamma 40. Insurance premium paid to House No.659, 14,185 HMT Layout, Nagasandra, Bengaluru in the name of Smt. T. Gangamma. 41. Medical expenditure towards treatment of 8,115 accused at Diacon Hospital. 42. Amount paid to Royal Orchid for food by 30,989 the accused TOTAL ...... 58,25,768=16 Spl.C.525/2014 20 STATEMENT SHOWING THE INCOME Sl. Particulars of Income Income No. Rs. 1. Net salary of the accused during check 16,56,157 period. 2. Amount received in the form of award by 12,444 accused during his service. 3. Rental income from No.54/9/137/2, 7,50,000 Saneguruvanahalli, Kamakshipalya, Bengaluru in the name of Smt. T. Gangamma.
4. Share of agricultural income received by 10,69,680 the accused from the family lands.
5. Income from sale of sheep 2,91,666
6. Loan borrowed from Canara Bank, GKVK 16,86,000 branch for construction of house by Gangamma.
7. Hand loan taken from Sri Venkatesh and 16,23,210 Sri Ramakrishna by Smt. T. Gangamma
8. Interest income to SB A/c 71,111 No.2737101012721 of Gangamma in Canara Bank, GKVK branch.
9. Interest income to SB A/c 2,830 No.2737101012721 of accused in Canara Bank, GKVK branch .
10. Interest income to SB A/c No.64043612452 7,088 of accused in S.B.M, Sahakaranagara.
11. Interest income to SB A/c 34,717 No.559010100044323 of accused in Axis Spl.C.525/2014 21 Bank, Rajajinagara branch.
12. Interest income to SB A/c No.10356468492 1,980=23 of accused in S.B.I., Kauvery bhavan.
13. Chit fund income from Margadashi Chit 19,90,000 Fund, Basaveshwaranagar by Gangamma.
14. Survival benefit amount from LIC policy 74,999 No.362103660 of accused.
15. Reimbursement of medical bill for 1,10,277 treatment of parents of the accused.
TOTAL ...... 93,82,155=23 SUMMARY STATEMENT OF ASSETS, EXPENDITURE, INCOME Total value of assets possessed during check Rs.1,39,94,443=90 period.
Total amount of expenditure incurred during Rs. 58,25,768=16 check period.
Total amount of assets and expenditure during Rs. 1,98,20,212=06 check period.
Total value of excess income to the known Rs. 1,04,38,056=83 sources of income of accused.
Assets in excess of income x 100 = percentage 111.25% Total income
8. The above tabulations prepared by PW.10 would indicate how he intends to present the case, when he makes an allegation of amassing of assets and properties disproportionate to the known sources of income of accused. Here one should bear in mind that it is not the charge sheet alone that would help the Court in arriving an effective finding Spl.C.525/2014 22 in the matter, but it is the final investigation report, which is marked as Ex.D4 during the crossexamination of PW.10. The said Ex.D4 is in 12 parts and of them part No.1 deals with information relating to the registration of the case and the offences alleged; part 2 deals with narration of the source report; part 3 gives a glimpse of the family background of the accused ; part 4 gives insight in to the investigation pursuance to the source report; part 5 speaks regarding the schedule information furnished by the accused in response to the notices issued by the Investigation officer ; part 6 deals with assets and liabilities and part 7 speaks regarding the income tax returns filed by the accused and Smt. Gangamma. According to me it is from the part 8 and onwards of this Ex.D4 plays a crucial role in examining the allegation of the prosecution and the defence of the accused to some of the disputed assets, expenditure and income. Here I must, without any reservation, praise the accused and his counsel for fairly conceding major part of the assets, expenditure and income. In other words accused has objected only some of the assets being included in his fold; incurring of some of the expenditures in his list of expenditures and for omitting some of his incomes and also for ignoring other incomes of his wife. If these disputed things are given proper attention to, I hope things Spl.C.525/2014 23 would be clear like a sky after a downpour.
9. Out of 26 assets enlisted by the PW.10, during his arguments and by filing his written arguments accused has disputed inclusion of assets at Sl.No.1, 2, 4 and 5, 16, 17 and 18. It does not mean that Court can leave away other assets as they are admitted and accept the version of the PW.10 without examining their trustworthiness. While appreciating the evidence, particularly in cases of this nature, the Court has to keep its eyes wide open and scrutinize the evidence with all its ability. It would be totally incorrect on the part of the Court either to accept the allegation of the prosecution or to go by the defence version without examining their authenticity. Of course this requires lot of brainy exercise, rather than appreciating only factual aspects and application of law like in other cases. With these things in my mind I would like to take up the first two assets which have been seriously disputed by the accused. When I say so it is the inclusion of the assets 1 and 4 as his acquisition, though the sale deeds of the said items stand in the name of his father Eraiah.
10. While submitting their arguments both prosecution and accused submitted more or less common arguments on the acquisition of site No.659 of HMT Layout valued at Spl.C.525/2014 24 Rs.13,98,500/ (asset no.1) and site No.54/9/137/2 of Kamakshipalya for Rs.2,00,000/ (asset no.4). From the records it is evident that asset no.1 was purchased on 10112006, whereas asset no.4 was purchased on 29082005. Thus, it is not in dispute that these two items were purchased during the check period i.e., between 26081996 to 22062012. Certified copy of the sale deed of asset no.1 and its related documents, obtained from the senior SubRegistrar, Peenya are at Ex.P26 and likewise certified copy of the sale deed of asset no.4 along with the related documents received from the very same Sub Registrar are at Ex.P25. According to the prosecution though the said deeds apparently show that the said two assets were purchased by father Eraiah, but infact sale consideration for purchase of the said items were paid by the accused, that is why in a short period of purchasing the said sites Eraiah executed a registered Gift deed on 1832008 gifting both sites to Smt. Gangamma W/o Kenchegowda(accused). In order to support its allegation prosecution further submits that the said Eraiah had no enough income to purchase the said assets also as he had already purchased seven pieces of agricultural lands under six sale deeds during the period December 2000 to November 2010 for total consideration of Rs.5,57,000/ and he had constructed one house and renovated another house Spl.C.525/2014 25 substantially in the Veeranayakanahalli by spending Rs.17,80,184/ and further as per his only Income tax return (of Eraiah) for the A.Y. 201011 and declaration of income made therein, it is not possible to hold that he could also acquire assets no.1 and 4 at Bengaluru from his own sources or from the income of the family. It is also contended by the prosecution that in the partition amongst himself and heirs of his brothers the said Eraiah got just 3 acres 15 guntas of land and before the check period he purchased 6 acres 23 guntas under different sale deeds, and he having purchased 9 acres 3 guntas during the check period for consideration of Rs.5,57,000/ and further having constructed and renovated the houses at Veeranayakanahalli for Rs.17,81,184/, it is bit unthinkable that he could have also purchased assets no.1 and 4 from his source or from the joint family income.
11. In order to understand the above contention of the prosecution one has to advert to the assets no.6 and 7 of the final investigation report, where the prosecution describes seven pieces of agricultural lands purchased under six different sale deeds along with the considerations paid under them as well as the description of the 3 acre 13 guntas that fell to the share of Eraiah at asset no.6, and asset no.7 refers to the Spl.C.525/2014 26 construction and renovation of two houses at Veeranayakanahalli. According to me while recording findings on assets no.1 and 4, one has to take note of the opinion and finding of the PW.10 on assets no.6 and 7. While describing the said assets 6 & 7, sale considerations on said seven lands and construction and renovation cost of houses are shown by the I.O. as nil, in so far as including them in the list of assets of accused. In other words prosecution has not included any sum in the list of assets of the accused in relation to the said two assets. This is very crucial thing, which one cannot forget.
12. Allying the contention of the prosecution and by placing mountainous documents along with his schedule information, accused submits that predominantly their family is an agricultural family and from the beginning it was/is getting income from the agriculture, horticulture, animal husbandry, poultry farming, sheep and goat rearing and dairying. Thus it is his version that since their family had enough income, their father purchased assets no.1 and 4 from his own sources and since he executed a Will bequeathing two houses of Veeranayakanahalli in favour of his sisterinlaw/Smt. Vanajakshi W/o Ranganath, in order to equate his both sons, Spl.C.525/2014 27 his father executed Gift deed on 18032008 gifting the said two assets to his wife Smt. Gangamma. In support of his claim that their family is a financially well off and it had/his having different sources of income, he has produced certificates and reports of the retired Deputy Director of Agriculture by name M.R. Delvi and a veterinary consultant/Dr. Harsha. To some extent he also relies upon the APRs filed by him periodically. At this stage itself I would like to remind that prosecution has also questioned the genuinety of APRs by alleging that copies of APRs produced before the Investigation officer are concocted and forged one in order to support the unsustainable claim of the accused. But keeping aside the said allegation and to attend it when the time warrants for it, I have bestowed my attention to find out, who stands to the truth.
13. Before I cull out the evidence adduced by both side on their respective claims with these two assets no.1 and 4, I am prompted to say that, though accused took pain to examine 12 witnesses on his behalf including himself, but he did not choose to examine his father Eraiah and also his wife Smt. Gangamma. Reasons for their nonexamination can be found in para 25 of his chief. There he stated that his father is now 95 years old and is a cancer patient and has lost memory, whereas Spl.C.525/2014 28 in respect of his wife he stated that she suffered a chain snatching incident on 1512018 and since then she is not coming outside due to traumatic phobia. He also deposed that he has lodged complaint before Peenya Police Station about the said chain snatching incident and said complaint has been registered at Crime No.32/2018. At this stage nonexamination of said Gangamma, as far as findings on assets no.1 and 4 is concerned is not relevant, but it is very essential to scrutinize the version of the accused about nonexamination of his father. It may be noted that this accused/DW.9 was further examined on 03122018 and on the date of his said examination he stated that as on that day his father is aged 95 years. But the only one income tax return filed by said Eraiah for the AY 201011, collected by I.O. from Income Tax Officer, Ward No.II, Tumkur, produced and marked as Ex.P53(file No.4), reveals the date of birth of said Eraiah as 02081934. It means as on 03122018 he was approximately 84 years and not 95 years. Interestingly in his schedule information marked as Ex.P82, on page no.8 at para 12 (file No.7 volume No.1) and in Ex.P82(A) on page No.163 at para 3 (file No.7 vol. No.2) while narrating about his family, its background and the different sources of income, the accused submitted in writing that his said father and brother - Ranganath were/are looking after their family Spl.C.525/2014 29 lands and their father attends day to day agricultural activities. Obviously this statement was made by him in order to show that they are not hiring services of labourers to cultivate their lands and to show more income from the lands with less expenditure. When such is the case nonexamination of his father prompts this Court to draw an adverse inference against the accused. On the pretext that Investigation Officers did not examine his said father, accused cannot shield the valuable evidence from the scrutiny of the Court or prevent the prosecution from crossexamining the said material witness. It is true that the medical documents produced by the accused would reveal that the said Eraiah is suffering from cancer and he is taking treatment in New BIO, Sampangiramanagar, Bengaluru, however from the said documents it cannot be ascertained that the said patient is suffering from disability to speak or to come to the Court. Even assuming for a moment that the said Eraiah was suffering from severe inability to attend the Court, atleast accused could have taken commission to examine his father in order to show that he has not hidden anything as prosecution made direct attack on the so called acquisitions of the said person.
14. Further at one breath accused submits that his said father Spl.C.525/2014 30 has almost lost his memory, but he himself produces the sworn affidavit of the said person at page No.1031 to 1048 of Ex.P 82(D) (file No.7 volume No.5). It is not clear whether as on the date of signing that affidavit on 01082013, what was the condition of his said father. The submission of the accused that both I.Os did not examine his said father, therefore his contention is to be accepted, is devoid of merit. It is true that the said I.Os have not chosen to examine the said Eraiah, but for that matter one cannot say that there is no fair investigation. Even if the said person was examined by the either of the I.O., it could not have fetched anything than what accused tried to project through his defence. Be that as it may, narrating above few lines about the nonexamination of said Eraiah by accused, now I will go through the documents made available by both side.
15. From the view point of prosecution during the check period as said Eraiah purchased asset no.6 and made construction and renovation of houses as described in asset no.7 by spending almost Rs.23,37,184/ (Rs.5,57,000 + Rs.17,80,184), there was no question of any more investment by said Eraiah. Prosecution has produced certified copies of the sale deeds of asset no.6 along with schedule information of Spl.C.525/2014 31 accused and since there is no dispute with regard to the amount of consideration shown in the said deeds I would straight away take up the cost of construction and renovation of asset no.7. For that one has to refer to the valuation report produced by the prosecution at Ex.P77 (file No.2). The said report is obtained from Assistant Executive Engineer, PWD, Tumkur as the said houses are situating within the limits of Tumkur district. Accused has also not vented any grievance to the valuation made by the said authority, which discharged its function of valuing the construction costs of the buildings in its routine course of official business. Instead in order to support that the said two properties viz., houses of Veeranayakanahalli are valued more than two sites gifted to Smt. Gangamma, during his argument accused submitted that value of the said two houses as per the prosecution itself Rs.17,80,184/, whereas value of the assets no.1 and 4 gifted to Smt. Gangamma make Rs.15,98,500/. Therefore with the said line of arguments and for the reasons recorded above I can very well accept the valuation of the construction costs of the said two houses as true and correct, notwithstanding the fact that the prosecution did not examine the said PWD Engineer, who prepared it. So once it is held that cost of the construction and renovation of two houses was at Rs.17,80,184/ and Spl.C.525/2014 32 acquisition of lands in asset no.6 at Rs.5,57,000/, there can be no hitch in holding that in all Rs.23,37,184/ was spent by Eraiah during the check period. As per the G.tree furnished by the accused his parents are blessed with two sons and five daughters and his father only did the marriages of all of them. The accused was also married before he joined service. In the given facts it can hardly imagined that by maintaining such huge family, the said Eraiah could have saved a considerable sum to purchase two sites at Bengaluru. When such is the case, whether it would be just and reasonable to accept the further contention of the accused that his said father purchased the assets no.1 and 4 by spending additional sum of Rs.15,98,500/ (Rs.13,98,500/ + Rs.2,00,000/). In this context after going through the evidence placed by the accused I find that he is not consistent in his approach. His version changes from time to time and from one stage to another stage. I would demonstrate this by referring to his own documents. Firstly let us have a cursory look on the affidavit of Eraiah to which I referred above and part of Ex.P82(D) (page No.1031 to 1048). In the said copy of the affidavit on page No.1047 Eraiah allegedly sworn that after his son (accused) joined the service on 2206 2012 he himself was supplying all the household items, food grains and vegetables. He further allegedly stated on oath that Spl.C.525/2014 33 out of the income from agriculture, horticulture, sheep and goat rearing, animal husbandry and by poultry farming 1/3 income was given to the accused. He has also stated for which year how much he gave to his said son. For the sake of convenience I provide the same in the following tabular form.
Amount Year in Rs.
1996-1997 1,40,000/-
1997-1998 1,45,000/-
1998-1999 1,50,000/-
1999-2000 1,50,000/-
2000-2001 3,50,000/-
2001-2002 3,75,000/-
2002-2003 4,25,000/-
2003-2004 4,50,000/-
2004-2005 6,00,000/-
2005-2006 5,50,000/-
2006-2007 6,00,000/-
2007-2008 5,00,000/-
2008-2009 5,75,000/-
2009-2010 9,25,000/-
2010-2011 9,00,000/-
2011-2012 10,00,000/-
2012 till May 6,25,000/-
Total 84,60,000/-
16. If the said version of Eraiah is accepted even for a moment, one has to question the genuinety of the declaration Spl.C.525/2014 34 made by him in Ex.P53 viz., his only income tax return filed for the AY 201011. There while filing his I.T. return for the financial year 200910 belatedly on 3032012 by showing his sundry debtors at Rs.4,25,000/ (page No.276) and gross receipts at Rs.72,480/ (page No.280) he declared agricultural income of Rs.5,30,845/ and his aggregate income at Rs.6,03,330/ and paid income tax of Rs.76,999/. I again say that except this stray I.T. return no other return was filed by him. As per 4 of schedule EI of Income Tax Act as noted at Sl.No.13 (page 285) of Ex.P53, nevertheless agricultural income is exempt from taxes, but for the rate purpose it has to be included in the income of an assessee. If really such considerable income was received by the family and 1/3 of it was paid to the accused as tabulated above for the financial year 20092010 the said Eraiah ought to have declared his income from the agriculture at Rs.9,25,000/ as he also got 1/3 share in the family income with another 1/3 share going the the share of Ranganath. Therefore one cannot agree that as contended by the accused the said Eraiah and their family was well todo. Either he has to accept that declaration of income of Rs.6,03,330/ made by his father for the assessment year 2010 11 is incorrect or that if it is correct how his father could have amassed so much of amount in a short period to purchase Spl.C.525/2014 35 seven agricultural lands under six sale deeds and could also construct one house and renovate another one. In the course of this judgment I would deal with value of an affidavit and also admissibility of the income tax and wealth tax returns at an appropriate stage. But for the sake of discussion I am referring to the said documents just to show ex facia the fallacy in the defence version. As per untestified version of Eraiah from 199697 till 22062012 he paid Rs.84,60,000/ to the accused, which is 1/3 share in the joint family income, excluding the salary income of the accused and socalled independent income of Smt. Gangamma from centering business. But as per Delvi and Dr. Harsha whose certificates are enclosed along with the computations made by them in Ex.P82(C) (file No.7 vol. No.4) and Ex.D14, joint family of the accused received Rs.1,49,01,935/ from agriculture and horticulture and Rs.87,31,208/ from animal husbandry, poultry farming, dairying, sheep and goat rearing. The said calculations provided by the said experts, who were not examined by the accused again for the reasons known to him, would make Rs.2,36,33,143/. If the said yearly incomes computed/assessed by said two experts are compared with the APRs of the accused produced at page No.1057 to 1084 of Ex.P 82(D) (file No.7 volume No.5) again the inconsistency galore on Spl.C.525/2014 36 their face. Here I would say that even declaration made in the APRs cannot be accepted as true and correct. Yet if one were to look at them, for the year ending 31032006 accused declared Rs.3,50,000/ from agriculture and Rs.1,50,000/ from sheep rearing. There is no reference to the dairy income, horticultural income and other sources of income, which he has spaciously set up in his schedule information. As I said very furnishing of copies of the APR by him along with schedule information is under the scanner. The variations in the declarations of different sources of income in the APRs filed to the department and copies of APRs furnished to the I.O. with schedule information, show that the said documents were tailored to suit his requirement. While accepting the income and expenditure of a person Court has to necessarily think of economics, accountancy and arithmetical calculations offered by such person. If I look at the evidence of the accused as a whole, I am surprised to find that he failed to furnish proper and acceptable reasons on the above three requirements. At one breath he submits that his family was economically sound and was getting huge income from various sources in as much as, from all sources of income under sky, but in the very next breath when the question of expenditure comes he submits that his wife Gangamma borrowed hand loans from DW.1 and Spl.C.525/2014 37 2 and mortgaged asset no.4 for Rs.15,00,000/ to DW.6 for construction of ground floor and first floor over the basement and she purchased construction items on credit basis from DW.10 to 12. This is how he goes helterskelter in order to displace the robust prosecution evidence. Either he should accept that he had no such several sources of income as projected by him or else he must necessarily prove the existence of such incomes. In other words if a person claims that he is having income of Rs.1,00,000/ during a relevant period, at the end of that period he has to show the expenditure and investment for that sum, otherwise his claim of income would be illusory. To put it in simple words one has to show the balance sheet of his income, assets and expenditure. There cannot be expenditure or investment in the absence of income and if income is there equivalent acquisition of assets, incurring of expenditure and investment have to be shown by a person, lest his story of imaginary income cannot be accepted and it leads to an irresistible conclusion that said person did not have that much of income.
17. In the instant case as per Eraiah when he paid Rs.84,60,000/ to the accused as his share of income in the joint family properties, at the end of 22062012 accused must show Spl.C.525/2014 38 where he invested that money, if not how he spent it. Absolutely there is no iota of evidence on this point. Interestingly in his schedule information at Ex.P82, (file No.7 volume No.1) at coloured ink page no. 15 and para 38 accused submits in writing that he has not purchased any immovable asset during the relevant period and he has repeated it again and again in different volumes of his schedule information. As stated by him, he did not acquire single immovable property in his name either before check period or during it. All the acquisitions were made by his father, whether it is agricultural or otherwise. Therefore without any pinch of hesitation I would say that the findings of the Investigation Officer based on the I.T. return of Eraiah and other attendant circumstances like purchase of lands at asset no.6 and construction and renovation of houses at Veeranayakanahalli as narrated in asset no.7 appears to be more plausible. It is relevant to note that as per the accused only his father got 3 acre 15 guntas of land in the family partition of 1970 and his said father purchased 6 acre 22 guntas before the check period. So if one can purchase only 6 acre 23 guntas of land from 1970 till 1996 i.e., over a period of 26 years, it is bit unthinkable that in a span of 16 years thereafter he would be able to purchase 9 acre 3 guntas of additional agricultural land, renovate and construct Spl.C.525/2014 39 two houses and further purchase two sites i.e., assets no.1 and 4 at Bengaluru. As contended by the accused if at all the Investigation Officer was prejudiced against him, he could have included the said assets 6 and 7 as also benami acquisitions of the accused. The very fact that those assets were left out from the consideration would indicate that I.O. was very liberal in narrowing down his allegation. So I do not find any kind of lop sided approach by the Investigation Agency.
18. Coming to the groan of the accused that in order to balance between his two sons his father executed Gift deed in respect of said two items, again I find that the said version is not true. No doubt accused has produced copy of the so called Will dated 22062004 at page No.1008 to 1011 of Ex.P82(D) (file No.7 volume No.5), intelligently he did not bother to produce the original when he came up to adduce his defence evidence. It is pertinent to note that at the time of adducing his defence evidence though he took care to produce several original documents, copies thereof were produced along with the schedule information, intentionally and wantonly he did not produce the original Will. Having gone through the said document thoroughly visavis the Gift deed executed in Spl.C.525/2014 40 favour of Smt. Gangamma by said Eraiah on 18032008, as rightly pointed out by the learned Special Public Prosecutor though the Gift deed is later in point of time and it immediately vested the alleged right, title and interest of Eraiah in the said donee (Gangamma) in and over assets no.1 and 4, however there is no whisper in that Gift deed that it was so executed in order to create an equilibrium between his two daughterinlaws viz., Smt. Gangamma W/o Kenchegowda and Smt. Vanajakshi W/o Ranganath and also the execution of Will by the said Donor in favour of Smt. Vanajakshi. Under the impugned Will said Kenchaiah intends to bequeath two house properties situated at Somegowdanapalya to his said junior daughterinlaw. When prosecution raised doubt about the genuienty of that Will and questioned why gift deed was not executed in favour of said Smt. Vanajakshi gifting the houses of Somegowdanapalya, it was argued by the accused that since still his parents are alive and are residing in the said houses, his father preferred to execute Will rather than Gift deed by gifting the said two house properties immediately to his junior daughterinlaw. If really such thing was there in the mind of said Eraiah, as I noted earlier he should have been examined by the accused without extending lame excuses of loss of memory and the false claim of 95 years of age. If the Spl.C.525/2014 41 contention of the accused that his said father suffers from loss of memory is accepted even for a moment, by ignoring the very statements of the accused in writing, that would lead to catastrophe over the genuinety and legality of the Will. First of all said Will is prepared on a white paper and no person who signed it as attester is examined. As can be seen from the said Will it is allegedly attested by none other than younger brother of the accused by name Ranganath S/o Eraiah and another person by name N. Gowda S/o Gangaiah. Here also accused played trick by enclosing the affidavit of his said younger brother at page No.1049 to 1052 of Ex.P82(D) (File No.7 volume No.5) but did not show interest to examine. Regarding filing of such affidavits whether of said Ranganath or Eraiah to which I made reference earlier, less said the better. As per Sec.3 of Evidence Act such affidavits cannot be treated as evidence. Indisputably the contents of the said affidavits were not put to the test of crossexamination. As noted earlier as per the accused his father and brother Ranganath personally cultivate the joint family lands on their own. If that was the case I do not find any impediment in attending the Court and vouching the so called execution of questionable Will by the said persons. Nonetheless the accused gave some unacceptable reasons for nonexamination of his father Eraiah, Spl.C.525/2014 42 but no reason was advanced for nonexamination of his younger brother - Ranganath. Reason for the same need not be explained. He did so with all his wit to stake his claim or atleast not loose his right over the house properties of Somagowdanapalya, which common ordinary prudent man can think of. Accused has intentionally ignored Sec.68 of Evidence Act and proviso contained therein in proving a Will. Here in this case the executant of the Will is still alive and in such a situation one cannot give any value to it as it is a most fragile document as it can be revoked or cancelled at any time by the so called executant. Perhaps thinking in this way accused with all his intelligence and brains behind him, he just produced the copy of the Will in respect of said two house properties of native place and Gift deed of the properties at Bengaluru. Therefore viewed from any angle I am unable to subscribe to his view that in order to do justice to his senior daughterinlaw (Smt. Gangamma) Eraiah executed a Gift deed and gifted two most valuable properties situating at Bengaluru i.e., assets no.1 and 4. In one line I can sum up and come to irresistible conclusion that copy of the Will is a tailored document to tide over the wave of allegations of corruption and amassing of assets disproportionate to his known sources of income. Thus, I reject the contention of the accused that the Spl.C.525/2014 43 said two items at assets no.1 and 4 were selfacquired properties of his said father or that they were acquired out of the joint family funds. In his written arguments accused contended that there is no iota of evidence to show that the said properties were his benami acquisitions as I.O. has not placed any material to show that sale considerations to purchase the said properties were flown from his account to the account of his father or he paid the sale considerations to purchase them. In respect of the said submission I would say that when prosecution alleged that the said assets are the benami acquisitions of the accused, it would be too impracticable to call upon it to show the flow of amount from the bank accounts of the accused to the account of his father. When allegations of corruption are made, the said things have to be gathered from surrounding circumstances and there will be hardly any direct evidence of receiving bribe and giving of it. To put it directly the said two properties are illgotten properties of the accused out of his illegal income and that is why the Gift deed was came to be hatched on 18032008.
19. Having recorded my findings on assets no.1 and 4, now I will turn to the asset no.2 i.e., valuation of the construction made on asset no.1. As per the prosecution in the year 201112 Spl.C.525/2014 44 a multistoried residential construction was put up in the asset no.1 and upon valuation of the same through Assistant Executive Engineer of PWD, Bengaluru it was learnt that cost of construction upon it was at Rs.57,50,903/, therefore prosecution alleges that this entire amount of cost has to be added as asset of the accused. However, by contending that nearly Rs.10 lakhs worth construction materials were purchased on credit basis and the said payments were made post check period, accused submits that the said amount of Rs.10,04,459/ is to be deducted from the cost of construction and since the said construction was carried out under the supervision of his son, as admitted by PW.5 viz., A.E.E., who valued the construction, further 20% is to be deducted from the total cost of construction and it works out Rs.11,50,180/ and if these two amounts are excluded at the most Rs.35,96,264/ can be included in the said asset.
20. In support of its contention prosecution relied on the valuation report prepared by the PW.5, which is marked as Ex.P4 (file No.2 page No.33 to 35), whereas relying on his explanation, offered on page No.909 and 910 and also the credit bills/invoices of construction items, produced at page No.917 to 950 of Ex.P82(D) as well as Ex.D16 accused Spl.C.525/2014 45 canvassed that if total cost of credit bills and invoices is excluded and 20% deduction is given in the total cost of construction, the cost arrived by PW.5 is excessive. In this background I have thoroughly gone through the evidence adduced by both side including the evidence of the Investigation Officer i.e., PW.10 and the evidence of accused viz., DW.9.
21. From the revised written arguments of the accused one thing is clear that he is not seriously disputing the cost of construction arrived by the PW.5, that is why he seeks 20% deduction on the ground of selfsupervision and deduction of Rs.10,04,459/ towards alleged credit purchase of construction materials. However, for that purpose Court cannot straight away assume that Ex.P4 is duly proved. Case file reveals that in order to prove the said valuation report prosecution examined PW.5, who carried out the valuation at the request of the Lokayuktha. The said witness in categorical terms stated that he visited the said premises bearing No.659 of HMT Layout, Nelagadaranahalli, Bengaluru along with Lokayuktha police and saw that construction work was going on in the said site. He stated that said building consisted of ground, first and second floor and then narrating the floorwise area and further Spl.C.525/2014 46 stated that for arriving the cost of construction he relied on the S.R. rates published by the KPWD, Bengaluru Circle for the year 201112 and he quantified the cost of construction at Rs.57,50,903/. He was also assertive in stating that the said cost does not include the cost of electrification and sital value. He identified his report at Ex.P4 (file No.2 page No.33 to 35). As deposed by him his report also reveals the floorwise measurement, items used for construction, type of construction, total built up area, the basis for arriving the cost of construction and exclusion of sital value and electrification. In his crossexamination he was confronted by accused whether did he see the sanction plan or in whose name the premises stood etc., According to me to arrive at the cost of construction there is no need to go through the sanction plan or who is the owner of it. When the construction was physically measured floorwise, the sanction plan can have any evidentiary value. It is not the grievance of the accused that measurement done by the PW5 is wrong or that his observation on use of construction matrials is also wrong. What transpires from the crossexamination of the PW.5 is that said construction was at its final stage and son of the accused was present during the inspection of that building. Nonetheless no notice was issued by the PW.5 or by the Spl.C.525/2014 47 Lokayuktha police before they visited the said construction site, as admitted by the accused, his son was present then and in presence of his said son PW.5 carried out his work of valuation. When accused seeks discount in the cost of construction at 20% on the ground that his son was personally supervising the construction and presence of the son was elicited in the cross of PW.5, nonissuing of notice either by Lokayuktha police or by PW.5 before they gave visit to the said site has also no impact in the matter. At para 9 of cross examination of PW.5 accused elicited that in case of self supervision cost of construction would be less to the extent of 20% and the said aspect will not be covered in S.R. rates. In this view of matter I should accept the contention of the accused that cost of the construction has to be reduced by 20%, then as rightly calculated by the accused he is entitled for the deduction of Rs.11,50,180/.
22. Now coming to the alleged purchase of construction materials on credit basis. Having gone through the original bills produced by the accused at Ex.D16 with their copies at page No.917 to 950 of Ex.P82(D), without any hesitation I would say that the said bills are got up for the purpose of the case. The keen examination of the bills would show that no Spl.C.525/2014 48 doubt accused examined PW.10 to 12 to prove them, the so called shop owners of the said business concerns. On their face the bills issued by Parihar Glass & Plywood show that all those bills are very new bills and they were obtained subsequent to the raid to reduce the cost of construction somehow. First of all no person concerned to Parihar Glass & Plywood was examined, therefore I seriously doubt the genuienty of those documents. Indisputably all those receipts/invoices/bills are private documents and they have to be proved in a manner known to the law. On the pretext that payments in respect of those bills/invoices were made subsequent to the check period and some payments were made by way of cheques drawn on the bank by his wife accused sought to exempt the cost of materials from the gross value of the construction cost. In order to appreciate the contention of the accused I have gone through the so called credit bills of Parihar Glass & Plywood (Ex.D16) and find that if one were to see the invoice numbers with dates of said invoices truth will get exposed. If the invoice No.8803 (752012) is compared with the next immediate invoice No.8805(852012), it appears that the said business concern has no other customer or customers except Smt. Gangamma that is why only one invoice gap is there between two days. Likewise in invoice No.8819(1552012) and Spl.C.525/2014 49 8824(1852012) only five invoice gap can be seen over a period of 3 days. To comment further on some more credit bills of the said Parihar Glass & Plywood it is seen that invoice No.8830 (2252012) and invoice No.8838 (2552012) in a span of 3 days only 7 invoices were passed by that shop. Same is the fate of invoice No.8843 and 8847 dated 2852012 and 3052012 respectively. In so far as tax invoices of Pushkar Plywood and its sister concern Kamadhenu Glass & Plywoods accused examined DW.12. Even the said tax invoices of the said concern bearing invoice No.206 and 208 though there is a gap of 11 days, but hardly one invoice segregates them. Then as compared to the tax invoice No.208 and 213 the margin of difference in tax invoices is four, but it spread over 18 days as invoice No.213 is dated 162012. The same thing continues even with respect to other tax invoices of the said concern. Accused also produced credit bills of Maruthi Timbers and Plywoods and examined DW.11 to prove them. Again on comparing their invoice numbers and dates, first two invoices are dated 2842012 with Nos.2891 and 2892, whereas fourth invoice No.2902 is dated 2352012, it means in a span of almost 25 days very few invoices were allegedly raised from the said shop. Lastly coming to the tax invoices of Sriranga Enterprises and evidence of DW.10, it is noticed that three serially Spl.C.525/2014 50 numbered invoices 179 to 181 were issued from 7122011 to 9122011. First two invoices are even dated. What it shows is that in between invoice No.180 and 181 though there is gap of one day it appears that no business was done by Sriranga Enterprises with other customers. Therefore without any second opinion I say that all those bills are cooked up documents to reduce the cost of construction. Added to that in their crossexamination both DW.11 and 12 admitted that there are overwritings in the bills/tax invoices issued by them. Such tampering can be seen in the year of issue of Sriranga Enterprises and Pushkar Plywoods. Therefore I am not inclined to give deduction of the said cost of materials.
23. Despite the above finding I have gone through the evidence of PW.10 as well as DW.9 on this aspect. In para 63 of his crossexamination no doubt PW.10 conceded that the said bills/invoices are pertaining to the construction of building in the asset no.1, when his attention was drawn to the bank account statement of Smt. Gangamma produced at page 951 of Ex.P82(D), he categorically stated that since he did not believe the said bills/invoices, he did not deduct the amount contained in them in the total cost of construction. According to me above reply of the said Investigation Officer is in tune Spl.C.525/2014 51 with the findings recorded by me in the immediate above paragraph. It is also true that in his examinationinchief at para 17 DW.9 deposed regarding the so called credit purchase of construction materials and also payment on them after check period is over. For this I can only say that using his official power he got up those documents and on the pretext that bank account of his wife (Gangamma) was freezed, the said bills were paid eight months after the raid. There is one more strong reason to doubt the existence of these bills/invoices as on the date of raid. If at all they were really in existence as on 2262012 as obviously all those bills are earlier to the date of raid, when the rented house of the accused was searched on the date of raid, they could have been traced by the Investigation Officer in that house. There is no explanation from him as to where he had kept those bills. At the cost of the repetition by looking at the bills/invoices and hand writings in them I can say that there is no pinch of doubt that they were prepared simultaneously though they are dated differently. That is why all those bills are very fresh and appears to be new for the purpose of submitting explanation to the Investigation Officer along with the schedule information. Therefore I am again and again convinced that no deduction can be given on the reason that the said bills really reflect the purchase of Spl.C.525/2014 52 construction materials and payments in relation to them were made subsequent to the check period. In view of this, as discussed by me earlier accused is entitled for deduction of only Rs.11,50,180/ in the total cost of construction on the reason that the said construction was made under self supervision of the accused and his family members. Resultantly in relation to this asset I scale it down from Rs.57,90,903/ to Rs.46,00,723/.
24. Asset no.3 deals with cost of electrification and electrical equipments used for construction in the site No.659 of HMT Layout, Nelagedaranahalli, i.e., in asset no.1. According to the prosecution since construction was going on in the said site Executive Engineer, Electrical wing of PWD was requested to inspect the building under construction and to make assessment of cost of electrification and cost of electrical items used there and accordingly the said officer namely PW.7 proceeded to the spot prepared report and submitted it and as per the said report accused and his family spent Rs.1,69,882/ towards the electrification. During the examination of the said PW.7 the said report was marked as Ex.P6. As noted by me in the beginning of this judgment in respect of some assets accused has fairly conceded them and this asset is one such Spl.C.525/2014 53 asset. Perhaps realizing the fact that he cannot suppress the truth on certain issues neither in the oral arguments nor in the written arguments he disputed the genuinety of the report. But that will not spare the prosecution to prove the correctness of it. In order to discharge its burden by examining PW.7 prosecution brought it on record that the said witness had been to the said building on 2282012 along with Lokayuktha police and by observing the electrification done there and equipments used, he quantified the said cost at Rs.1,69,882/. At this stage itself I may remind by referring to Ex.P4 that the said cost of construction of the very building did not take in to account the sital value and cost of electrification. So one has to read this Ex.P6 as a continued part of Ex.P4. In that background if Ex.P6 is gone through it also recites that it is only towards cost of electrification and the equipments used. Though the accused had an opportunity to crossexamine the PW.7 no material as such was elicited to disbelieve him. Stray suggestions were made by stating that one can get electrical equipments and items of substandard company at cheaper rate. But in furtherance of that suggestion accused did not suggest which company equipments he used nor produced any document to show that he used nonbranded items to scale down the cost of electrification. Therefore I take that entire Spl.C.525/2014 54 amount of Rs.1,69,882/ towards cost of electrification and electrical items used.
25. Next and most contentious asset is the asset No.5 and in respect of this asset prosecution alleges that accused constructed a three storied building in the asset No.4 (site No.54/9/137/2 of Kamakshipalya) held in the name of said T. Gangamma and cost of that construction was quantified by PW.6, a PWD Engineer of Government of Karnataka, at Rs.36,86,143/ as such the said entire cost of construction has to be included in the asset of the accused. It further alleges that though the construction expenses were born by the accused, in order to shield the said cost, a purported unregistered lease cummortgage deed was got up in the name of M/s Indo Gas, a partnership firm represented by its partner DW.6 (Ravikumar) by using the stamp papers of 2006 as if the said firm took the said property having construction in the basement only on payment of Rs.15 lakhs, with an undertaking to pay Rs.10,000/ rent per month and further agreeing to construct ground floor and first floor over the said basement at its cost and to let out that additional constructed building for a period of 10 years. It is also alleged that the said socalled leasecummortgage deed was made on 30072011 Spl.C.525/2014 55 and in a span of 17 days through rental deeds dated 17082011 the ground floor and first floor were let out to the tenants. Thus it submits that it is not possible to construct two floors (ground floor and first floor) in such a short period and to let out to the tenants. According to the prosecution when Investigation Officer collected documents from the office of BESCOM regarding additional power obtained to the said building, these things were unearthed. Advancing one more reason that the said original leasecummortgage deed was found in the house of Lakshmipathi Reddy during search of his house, which ought to have been with lessee/mortgagee in normal course, prosecution contends that the version of the accused that he did not bear the cost of construction of ground floor and first floor has to be rejected and the said cost is to be included in the asset of the accused. In this context prosecution relies on Ex.P5, P57 and statements of the BESCOM Engineers.
26. Per contra, seriously opposing the said allegation accused submits that in fact his wife had put up construction only in the basement and she had let it out to DW.2 (Ramakrishna) and on his vacating the same it was mortgaged in favour of the said M/s Indo Gas, who agreed to develop that property at its cost Spl.C.525/2014 56 by constructing two more floors and paid Rs.15 lakhs as lease amount and further agreed to pay Rs.10,000/ per month as a lease amount for the period of 10 years. Accused further submits that out of said Rs.15 lakhs only Rs.20,000/ was received in cash and balance amount was paid by way of cheques by the said firm and the said fact was disclosed by him in his APR, by his wife in her I.T returns and in the accounts of the said firm and these facts have been elicited in the cross examination of PW.9 and PW.10. He contends that with an intention to involve him somehow in this case ignoring the said payments made by that firm by way of cheques and also the leasecummortgage deed, against his prayer cost of the said construction is shown as asset in the list of assets and it is totally uncalled for. In support of his said submission he refers to Ex.D5, Ex.P5, Ex.D1, Ex.P19, affidavit of DW.6, APRs filed by him, I.T. return of his wife (Smt. Gangamma), evidence of PW.10, PW.9, DW.6 and DW.9. In my considered opinion since substantial amount is involved in this asset and accused seriously disputes the inclusion of that entire amount, it requires thorough examination of the rival allegations.
27. It is not in dispute that as on the date of raid the said site No.54/9/137/2 was standing in the name of Smt. Gangamma.
Spl.C.525/2014 57 It is also not in dispute that three storied building has been put up in that site and it is also having a small adjoining shed with some open space around the said buildings. But the disputed facts are that according to the accused, ground and first floor over the basement were put up by the said firm at its cost and it also paid Rs.15 lakhs as lease amount, yet in order to make him a scapegoat not only the Investigation Officer did not include the said payment of Rs.15,00,000/ under the head of income, which was received by his wife by way of cheques, the said I.O. has also included the cost of construction as his asset causing lot of prejudice to him. He further alleges that when he did not request the I.O. to include the rental income of the said property as his/his wife's income, Rs.7,50,000/ has been treated as rental income by the I.O. based on the copies of the rental agreements furnished to the BESCOM. Thus he contends that investigation is prejudiced and the entire cost of construction has to be removed from the list of assets. Taking note of these contentions one has to appreciate the said deed dated 30072011 very keenly.
28. During his argument referring to the decision reported at AIR 2008 S.C. 1541 in the case of Thiruvengada Pillai v. Navaneethammal and another, Sri PNH, Advocate contended Spl.C.525/2014 58 that only on the reason that two sheets of the said deed are of the year 2006, it was wrong on the part of the I.O. to doubt the genuienty of it wholesomely. He canvassed that provisions of the Stamp Act or other enactment do not prohibit or proscribe use of such old stamp papers, therefore the said instrument cannot be doubted, when especially substantial consideration contained under the said deed was paid through cheques and receipt of the said amount was declared by the accused as well as by his wife in their APR and I.T returns respectively, including the said firm, which declared the payment of the said amount in its books of accounts. In the light of the said arguments I have gone through the said judgment and find that as rightly submitted by the learned Advocate, dealing with an issue whether an agreement executed on old stamp papers, purchased long back, will have any legal invalidity, referring to Sec.54 of the Stamp Act of 1899 Hon'ble Supreme Court held that provisions of the said Act nowhere prescribe expiry date for the use of stamp papers, but only lays down that if a person, who is in possession of unused stamp papers can seek refund of the amount within a period of 6 months, therefore if a document is executed by using good old stamp papers, that cannot be a reason to doubt such an instrument.
Spl.C.525/2014 59
29. In the instant case the alleged leasecummortgage agreement is dated 30072011 and is written on three sheets of which two stamp papers (two sheets) are dated 7112006 and another sheet is the documentation sheet. There is no date on the said documentation sheet. The said stamp papers are of Rs.100/ each and the documentation sheet is of Rs.2/. The said deed is marked as Ex.D5. After reading that instrument, without any second opinion I hold that it is totally inadmissible in evidence for more than one reason. Before I explain the reasons therefor, it is necessary to know the substance of the contents of that deed.
30. The contents of the said deed, as briefly explained above, would reveal that on 3072011 Smt. Gangamma mortgaged her said property, consisting of construction in the basement portion and adjoining open space, for a period of 10 years authorizing the firm represented by DW.6 to make further construction at its cost. The said firm agreed to pay refundable security of Rs.15 lakhs and further agreed to pay Rs.10,000/ per month during the said period. Deed further provides that after putting up additional construction firm is permitted to let out portions thereof and generate rental income during the mortgagecumlease period. Thus it is seen that neither it is a Spl.C.525/2014 60 mortgage deed in its true sense nor a lease deed. It is somewhat mixture of the both kinds of transfer, for the obvious reason that Rs.15 lakhs was allegedly paid by firm fetching no interest on it and in addition to that it agreed to pay Rs.10,000/ rent per month. As per the contents of the deed firm paid Rs.15 lakhs refundable security deposit to Smt. Gangamma. When such is the case whether can it be imagined that such a leasecummortgage deed of more than one year involving consideration of Rs.15 lakhs can be entered into by the parties by way of an unregistered document. Here one has to bear in mind that mere marking of that document as Ex.D5 will not cloth it with all its legality. In order to understand the true legal meanings of the terms "mortgage" and "lease" it is necessary to refer to the provisions of T.P. Act.
31. As per Sec.58 of T.P. Act a mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan. No doubt the definition of the word mortgage reads further, for the purpose of this case, the above part of the definition is enough to understand what constitutes the mortgage transaction. Having read the said provision, it is necessary to know out of six kinds of mortgages, which kind Spl.C.525/2014 61 of mortgage attracts to the contents of the Ex.D5. On going through the said kinds of mortgages, I can only say that the transaction contained in the Ex.D5 reveals that it is an "anomalous mortgage" as defined in Sec.58(g) of the Act.
32. Then as per Sec.59 where the principal money secured is Rs.100/ or upwards, a mortgage other than a mortgage by deposit of title deeds, can be effected only by a registered instrument signed by the mortgagor and attested by atleast two witnesses. Having understood the definition of mortgage, how it has to be effected and what kind of mortgage the Ex.D5 reveals, now I turn to the ChapterV of the T.P. Act, which deals with leases of immovable property.
33. As per Sec.105 a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, to be rendered periodically or on such specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
34. In the instant case as I pointed out earlier in addition to paying refundable security of Rs.15,00,000/, firm allegedly agreed to pay Rs.10,000/ per month as a rent/lease amount Spl.C.525/2014 62 for a period of 10 years. That's why I said that Ex.D5 is a mixture of mortgage and lease. If one reads the provisions of ChapterV of T.P. Act, as per Sec.107 of the said Act a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent, can be made only by registered instrument. Here at the cost of repetition I again say that Ex.D5 is not a registered instrument. Nevertheless the said deed is titled as " Bhogyada Karaaru Pathra", the contents of it reveal that in fact it is not an agreement, rather it is having all the features of a complete mortgagecumlease deed. In that event it is least to say that, as the consideration involved in it is Rs.15 lakhs, as a refundable security, and it was executed for a period of 10 years, it was compulsorily registrable as per Secs.59 and 107 of the said Act. Let alone registering of it, even the said instrument is not written on requisite value stamp paper, as per the Stamp Act, as prevailing in the year 2011.
35. While explaining about the Ex.D5 in the previous paragraph I stated that it is written on three sheets and of them two sheets are of 7112006 and one sheet is documentation sheet without date. The said two stamp papers are of Rs.100/ each and documentation sheet is of Rs.2/. Thus in all the said Spl.C.525/2014 63 instrument is written on stamp papers of Rs.202/, whereas as per Article 30(iii) of schedule to the Stamp Act where the lease purports to be for a term exceeding one year and not exceeding 10 years, the proper stamp duty would be Rs.1/ for every Rs.100/ or part thereof on the total amount or value of; the average annual rent, premium, fine and money advanced. Since the firm had agreed to pay Rs.10,000/ per month as rent, the annual rent would be Rs.1,20,000/, therefore deed ought to have been written on stamp papers of Rs.1,200/. Similarly since firm paid Rs.15,00,000/ as refundable security for use and enjoyment of the said property for a period of 10 years, as per Article 34(a) the stamp duty ought to have been paid on Rs.15 lakhs. As per the said Article stamp duty has to be paid in terms of Article 20 of the schedule, which deals with the conveyance. In that event in the year 2006 prescribed stamp duty on conveyance was at 7½ % of the value involved in the deed of conveyance or the market value of the property. Therefore the proper stamp duty that should have been paid in relation to that mortgage transaction was Rs.1,12,500/. However later stamp duty on conveyance was reduced to 6% and subsequently in the year 2012 it was reduced to 5%.
36. Now the fundamental question that arise for Spl.C.525/2014 64 consideration is if such an instrument, which is legally and compulsorily registrable, is not registered and similarly an instrument, which is required to pay the prescribed stamp duty, does not pay such duty, what would be the fate of such document? Here I am guided by the division bench decision of Hon'ble High Court reported at ILR 1999 KAR 4634 (C) in the case of K. Amarnath vs. Smt. Puttamma. In that case seized with a similar issue, explaining the distinction between Sec.34 of the Stamp Act and Sec.49 of the Registration Act, Hon'ble Court held that both Sec.34 of the Stamp Act and Sec.49 of the Registration Act nevertheless bar the document being received in evidence, the bar is absolute under the Stamp Act unless the deficit duty and penalty is paid, and the bar is not absolute under the Registration Act.
37. In view of the aforesaid judgment and ratio laid down in that case, if stamp duty on lease transaction and mortgage transaction are sum up, the requisite stamp duty that was payable on the said instrument was Rs.1,13,700/ (Rs.1,12,500/ + Rs.1,200/) and as per Sec.34(a) of Stamp Act if such document is to be made admissible in evidence, penalty has to be paid 10 times of the deficit stamp duty with deficit stamp duty. In that case the stamp duty already paid on Spl.C.525/2014 65 Ex.D5 being Rs.202/ and if it is deducted, the deficit would be Rs.1,13,498/. So unless Rs.12,48,478/ (Rs.1,13,498/ x 10 + Rs.1,13,498/) is paid by the accused as deficit stamp duty and penalty the said Ex.D5 cannot be looked into.
38. In the case in hand admittedly accused has not paid the deficit stamp duty and penalty as required under the provisions of the Stamp Act and at the same time it is an unregistered document. Given the facts and circumstances, by no stretch of imagination one can look in to the contents of Ex.D5 and receive it as an evidence. Therefore if Ex.D5 is liable to be eschewed from consideration as an evidence and the said fact goes to the root of the defence of the accused.
39. Even assuming for a moment that already Court has marched much ahead by exhibiting that document, as opined by me earlier, mere marking of it will not make that document legally admissible in evidence. Here I would like to rely on the decision reported at AIR 1971 SC 1865 in the case of Sait Tarajee Khimchand and Ors. vs. Yelamarti Satyam alias Satteyya. In that case Hon'ble Court in unequivocal words held that marking of a document will not dispense with its proof. Hence, I hold that marking of that document as Ex.D5 Spl.C.525/2014 66 will not come to the rescue of the accused.
40. Even by taking liberal view if one were to ignore the mandatory requirements of the T.P. Act and the Stamp Act while interpreting and appreciating the Ex.D5, then also I seriously question the reliability of the said instrument on other strong reasons. First of all to show that as on 3072011 in the site No.54/9/137/2 there existed only a basement construction, accused has not produced any document. Secondly when as per the said alleged leasecummortgage deed firm was permitted to put up further construction by obtaining requisite license and getting approved building plan at its cost, no such document/s issued by the competent authority for said further construction are produced by the accused to show that subsequent to the execution of Ex.D5 the said firm got prepared the building plan in the name of Gangamma and obtained license to construct there. Thirdly on bare reading of the said instrument would show that "possession" of that property was allegedly delivered by Gangamma on the date of execution of it and not earlier. This can be seen on page 210 in the bottom most paragraph. But in contrast to the said contents of the written instrument on page 4 at para 6 of his chief DW.6 tried to improve his version by Spl.C.525/2014 67 saying that though the deed was executed on 30072011, but they had taken possession of the said property earlier to it and had started construction in it. So what it shows is that in order to come out from the clutches of law and to cover up his ill gotten income accused has come up with this Ex.D5.
41. I would further demonstrate how that document is totally unreliable, not only on legal aspect even on factual aspects, by referring to the very own documents of the accused. The said documents are none other than the applications and enclosures submitted by Smt. Gangamma while obtaining additional power connections to the said premises. I.O. has secured the copies of her said applications and enclosures and has produced them at Ex.P57(page No.73 to 159 of file No.4). Bunch of the said documents would reveal that while seeking additional power connections the said Gangamma enclosed copies of the rental agreements entered by her on 17082011 with Lakshmipathi S/o Dodda Byrareddy, Ravikumar S/o Ganganna(DW.6) and Balakrishna S/o Gangabyraiah at page No.121, 138 and 156 of Ex.P57 along with her no objection letters at page No.123, 137 and 155 of the said Ex.P57 respectively. If at all as contended by the accused, his said wife had entered into leasecummortgage on Spl.C.525/2014 68 3072011, there was no occasion for her to execute the said rental agreements on her own with her socalled tenants. As per their version only she had parted with possession of that property to the firm for further construction of the ground floor and first floor. As per Ex.D6, income tax return filed by M/s Indo Gas, it is a firm consisting of partners and the said partners are Balakrishna and Ravikumar (DW.6). It is surprising that over a short period of 17 days from the date of leasecummortgage deed the said firm could complete the construction of ground and first floor and further allowed the very lessor/mortgagor to let out the additional constructed portions to its partners and to another person viz., Lakshmipathi.
42. During the argument it was canvassed by the accused that said rental agreements were prepared only for the purpose of obtaining additional power connections and not for other purposes. In tune with the said contention DW.6 also tried to project his evidence. Taking note of the circumstances as a whole, I have no hesitation to say that, it appears that accused and his family members were/are habituated in concocting the documents as per their requirements. This can be got confirmed with rental agreements entered with said Spl.C.525/2014 69 Lakshmipathi, DW.6 and Balakrishna. Page No.122, 139 and 157 of the said Ex.P57 would reveal that, though the said deeds make provision for signatures of the witnesses, nobody has signed them. As per the contents of the identically drafted rental agreements the said Gangamma let out portions of the first floor to the said trio on rent of Rs.15,000/, Rs.10,000/ and Rs.10,000/ and on refundable security of Rs.2,00,000/, Rs.1,00,000/ and Rs.1,00,000/ respectively. Here lies the crux of the matter. Considering the said rental agreements and by giving due weightage to them I.O. treated the said rental income as income of the accused by ignoring the Ex.D5 altogether. When I take up discussion on the aspect of income of the accused I would deliberate more on the said rental agreements, but at this stage it is suffice to say that legally inadmissible Ex.D5 is countered by the copies of the rental agreements obtained by the Investigation Officer from the competent authority viz., BESCOM. It is not the case of the accused that his wife did not furnish such documents to the BESCOM, instead he prefers to submit that it was for the purpose of obtaining additional power only.
43. For the sake of discussion if his said version is also accepted i.e., rental agreements were prepared for the purpose Spl.C.525/2014 70 of taking additional power, then again he has to answer how it was possible for his wife or to the firm to complete construction of ground and first floor over a period of 17 days. It is not clear what magical wand the firm had in its hands to bring up such construction in such a short period. Again I say that accused has not produced document to show that the said ground floor and first floor were constructed subsequent to handing over possession (3072011) of said property to the firm that too after obtaining license and getting sanction the building plan, therefore one has to question the Ex.D5 from all angles.
44. Let us turn to the another contention of the accused that he had declared receipt of Rs.15 lakhs by his wife in his APRs even before the raid, after going through the APR filed by him for the year ending 31032012, produced at page No.90 to 92, marked as Ex.D3 (file No.1), it is not possible to hold that he filed the said APR before the date of raid (2262012). From the said APR it is not possible to ascertain on which day accused filed it to his higher officer. It does not contain the date of receipt by the authority which allegedly received it from him. The letter of Commissioner of Police, Bangalore City dated 72 2014 (page 89 of Ex.D3) shows that at the request of the Spl.C.525/2014 71 Investigation Officer, the said authority forwarded APRs of the accused for the periods 199899, 19992000, 2001, 2002, 2005, 2006, 2009, 2010, 2011 and 2012 stating that there is only a photocopy of the APR for the year 2003. It shows the apathy of said authority in maintaining the records of its officials. In none of the said APRs produced at page No.87 to 113 of Ex.D3 there is any endorsement of the said authority to show as to when it received them. According to me it is very crucial thing to know whether the APR with year ending 31032012 was filed prior to the date of raid (2262012) or thereafter. Therefore even if accused had declared on page No.91 of Ex.D 3 at Sl.No.4 regarding payment of Rs.15 lakhs by the firm, that cannot be taken in to consideration in view of other documents and unassailable events as explained above.
45. Coming to the declaration made by his wife in her I.T returns regarding receipt of the said Rs.15 lakhs and documents produced by the accused at page No.875 to 878 of Ex.P82(D) (file No.7 volume No.5), having gone through the said documents, once again I am compelled to say that, accused has not left any stone unturned to vindicate his hallow defence. It is true that copies of the I.T returns, computation of total income sheet, statement of affairs as on 3132012 Spl.C.525/2014 72 prepared by the socalled Chartered Accountant would show that the said accountant prepared the said statement of affairs (page 878) based on "bank statement and informations"
furnished to him. It is not that he prepared the said statement based on the books of accounts maintained by Smt. Gangamma, who is a multifaceted lady engaged in different kinds of businesses like centering business, letting out of properties, tailoring business and was also getting income from agricultural lands of her parents. Moreover the said statement of affairs was prepared on 1872012, i.e., after the raid. Not only that computation of total income was also done subsequent to the raid and I.T return was filed on 30032013. The said I.T return (page 875) is an Ereturn indicating acknowledgement number with the date of filing. Therefore one cannot look into such document/s, which came into existence after the raid.
46. It was further contended by the accused that, his wife received Rs.15 lakhs by way of cheques and the said fact proves the alleged transaction of leasecummortgage. In this regard he invited attention of the Court to her bank account extract produced at page No.177 and 178 of Ex.P19 (file 2), copy of which is also produced by him at page No.157 and 158 Spl.C.525/2014 73 of Ex.P82(file 7 volume No.1). It is true that as per the entries dated 1592011 and 1952012 of the said extract Rs.5,00,000/ each was received by said Gangamma and another Rs.4,80,000/ was received by her on 10052012. Now the question is whether receipt of said sums by her can be treated as receipt of Rs.14,80,000/ pursuant to Ex.D5. Here one has to ponder for a moment before accepting such version of the accused. When the said Ex.D5 is dated 3072011 and Gangamma handed over possession of the said property with basement construction and adjoining shed on the said day, could she have kept quite till September 2011 and May 2012 to receive the the substantial amount of Rs.14,80,000/ by satisfying with receipt of a meager sum of Rs.20,000/ in cash. The reading of stipulation contained in Ex.D5 on page No.2 with reference to the said balance Rs.14,80,000/ would indicate that, she had agreed to receive Rs.5,00,000/ through Vijaya Bank, Rajajinagar branch, cheque No.449160 dated 139 2011 and remaining Rs.9,80,000/ before 10th March 2012 or before the completion of construction, whichever is earlier. If by 1782011 as contained in the rental agreements construction of ground floor and first floor was completed and the said floors were let out to Lakshmipathi, DW.6 and Balakrishna and she made applications for sanctioning of additional power, Spl.C.525/2014 74 there was no need for her to wait till May 2012, that too beyond the period stipulated in that questionable deed. Therefore only on the reason that the said three sums constituting Rs.14,80,000/ were received earlier to the date of raid does not ipso facto lead to an inference that the said sums were paid pursuant to the Ex.D5.
47. In his written arguments by referring to para 31 to 34, 38 of PW.10 and para 106 of PW.9 viz., the two Investigation Officers, accused tried to create a ground for himself in order to show that Ex.D5 was truly executed and construction cost of ground and first floor were borne by the firm. But in the context of the discussion made above, the affidavit of DW.6 produced at page No.159 to 161, his oral evidence or marking of statement of DW.6 as Ex.D1 (which I seriously doubt as to how it could have been marked as Ex.D1), I am not convinced that contention of the accused holds any water. In para 31 to 34 and 38 of his crossexam as per the contents of the Ex.D5 and other documents the PW.10 vouched that, the said documents so speak as suggested by the accused, but such reply will not come to the aid of the accused as an admission of the transaction/s he allegedly portray. When an evidence is to be culled out, Court has to give prominence to the documents Spl.C.525/2014 75 as compared to the oral evidence. It is often said that men may lie but not the documents.
48. It was also contended that oral evidence of DW.6 regarding the said leasecummortgage transaction is further corroborated by documents of the said firm produced at Ex.D 6 to D13. Thus accused contended that the payment of Rs.15 lakhs and Ex.D5 stands proved with the said documents. In view of his said contention I have gone through the said documents visavis the oral evidence of DW.6. Ex.D6 is the Ereturn with its annexures, filed by the said firm M/s Indo Gas for the A.Y. 201213, Ex.D7 is the ledger account extract of the alleged contractor who constructed the ground and first floor for the said firm, Ex.D8 is the ledger account extract of Smt. Gangamma, Ex.D9 is the certificate under Sec.65B of the Evidence Act filed by the DW.6, the Ex.D10 is bank account extract of the firm maintained in Vijaya Bank, Ex.D11 is the ledger account extract of Benaka Tools & Components, Ex.D12 is ledger account extract of Exigo Engeering and Ex.D13 is the Bank account extract of the firm maintained in Lakshmivilas Bank. The substance of the version of DW.6 is that after their firm constructed ground and first floor, it let out the portions thereof to said Benaka Tools & Components as well as Exigo Spl.C.525/2014 76 Engineering and firm received rent from its said tenants through bank cheques. He also deposed that in the books of accounts of their firm Rs.32,17,000/ is shown towards leasehold building and said sum consists of Rs.15,00,000/ refundable security deposit and Rs.17,17,000/ cost of construction paid to the contractor - M. Venkatesh. He further stated that their firm has maintained ledger accounts and extracts of the ledger are produced.
49. In view of the said specific evidence of DW.6 and Ex.D6 to D13 I have carefully gone through the oral evidence of said witness and the documents made available by him. At the very threshold I would say that the said documents have to be discredited for more than one reason. Firstly the said Efiling was done on 2892012 i.e., subsequent to the date of raid. Secondly when it is said that M/s Indo Gas is a partnership firm, a firm cannot be accepted to deal like an individual person, who oftenly deal in oral terms. There is no single document to show that the said firm entered into rental agreements with said Benaka Tools & Components and Exigo Engineering. Thirdly on verifying the balance sheet of the firm, which admittedly prepared subsequent to March 2012 it is not possible to gather that the said leasehold building, the Spl.C.525/2014 77 cost of it is shown at Rs.32,17,000/ in the asset coloumn, is the property No.54/9/137/2 of Kamakshipalya. Fourthly it is too elementary for me to say that the alleged cost of construction of Rs.17,17,000/ cannot be sum up and shown as leasehold building, since there is no stipulation in Ex.D5 that at the end of the leasecummortgage, the said firm is entitled to get back its cost of construction. I wonder whether the said firm which deals in crores of rupees annually is assisted by a legal expert or not. A firm whose accounts are audited, cannot be expected to deal without documents. As rightly argued by learned Special P.P., since firm is engaged in considerable business, leasehold of a different building for Rs.32,17,000/ is made up to constitute payment of Rs.15 lakhs security deposit and Rs.17,17,000/ as construction cost. I would substantiate this finding by referring to the very document of the accused viz., his wife's bank account in Canara bank, GKVK branch, to which I made reference earlier. As per the said extract produced at Ex.P157 and 158 of Ex.P82(file No.7 volume 1) and page No.177 and 178 of Ex.P19 according to the version of the accused his wife received Rs.4,80,000/ on 10052012 and Rs.5,00,000/ on 1952012. Accused also submitted that another Rs.5,00,000/ also received by her on 1592011. Evidence to this effect can be seen in para 7 of further chief of Spl.C.525/2014 78 DW.6. There by slip of sight first transaction is typed as 159 2007 instead of 1592011. The reason for repeating and highlighting the said receipts, especially last two receipts is very important for the simple reason that the said receipts were made by Smt. Gangamma in the month of May 2012. In other words the said sums (Rs.4,80,000/ & Rs.5,00,000/) were paid by M/s Indo Gas in the month of May 2012. When that was the case, there was no occasion for it to show that amount as part of leasehold building in its accounts for the year ending 31st March 2012. Fifthly there is no piece of estimate to show that cost of construction of ground and first floor was at Rs.17,17,000/. Sixthly if really Mr. M. Venkatesh was the contractor of the firm and he carried out construction of ground and first floor, another interesting point would be how firm could have made payment of Rs.10 lakhs to the said contractor on 2372011 through Cheque No.515660, when no leasecummortgage agreement with Gangamma was materialized. It means the alleged leasecummortgage deed is dated 3072011, whereas payment was made by way of cheque to the contractor on 2372011 as appearing from Ex.D7. Mere issuing of cheque in the name of Smt. Gangamma for Rs.5,00,000/ and Rs.4,80,000/ prior to March 2012 as allegedly evidenced by Ex.D8 do not lead to an inference that Spl.C.525/2014 79 she withdrew those sums to make up the same as a leasehold property of the firm before 31st March 2012. Therefore, viewed from any angle it is not possible to accept the contention of the accused that, cost of construction of ground floor and first floor were borne by the firm and the said transaction stands proved with Exs.D5 to D13 and evidence of DW.6. So the finding of the Investigation officer that in order to screen his own investment in the construction of the said floors, accused got up those documents.
50. If the above finding is arrived, then I have to examine the quantification of the cost of construction. In that regard prosecution has examined the PW.6, the PWD Engineer and through him it got exhibited the Ex.P5. The said document is the estimate prepared by the said expert based on the State Government Gazette notification. The said PW.5 deposed that he had been to the said property on 2772012 along with the Lokayuktha Police Inspector and noting the total measurement of each floor, he valued the cost of construction of basement, ground floor, first floor and adjoining shed comprehensively at Rs.36,86,143/. In his crossexamination by suggesting that during his spot visit construction of the shed was going on, accused conceded the visit of the said witness and inspection Spl.C.525/2014 80 of the said building by the said official. Though the said witness was questioned as to whether he verified the documents to know when the construction work was commenced and when it was completed, in order to show the same, as I highlighted earlier accused himself has not produced the said documents. He being the proper person to have the custody of those documents, if at all as contended by him construction was commenced after 3072011 and was completed thereafter, nothing prevented him to produce documents to that effect when he entered his witness box, if not at the stage of recording his statement under Sec.313 of Cr.P.C. On page No.4 at para 9 PW.6 precisely replied that 18 months period is required to construct the building, which he inspected. His said evidence was not at all denied in his further crossexamination. Therefore again I reject the contention of the accused that the said firm M/s Indo gas was entrusted to develop the property by putting up the construction of ground and first floor and after its completion it let out the portions thereof to its tenants. As if PW.6 was an Investigation officer he was confronted in his crossexam, whether did he enquire to know who is the owner of that building? Even it was suggested to him that during his spot visit it was brought to his notice that basement was constructed Spl.C.525/2014 81 about four years back. Here I pause for a moment. If at all the basement was constructed four years earlier to the visit of PW.6, then it was inevitable for the accused to show that said basement was existed much earlier. In this regard he has not produced property extract obtained from BBMP to show existence of basement as contended by him. In contrast to his contention that only ground and first floor were constructed by the firm, in the crossexamination of PW.6 on page No.4 at about fourth line from below it was suggested that main building and "shed" were constructed by RavikumarDW.6. It is never the case of accused that "adjoining shed" to the main building was also constructed by the firm or the DW.6.
51. In a bid to submit that cost of construction is borne by the said firm, accused forgotten to elicit anything from PW.6 so as to doubt the quantification of cost of construction arrived by him. As per Sec.114(e) of Evidence Act Court has to presume that official act of quantification of cost of construction by PW.6, who is expert in that field, is true and correct. Moreover when there is no grievance to the said valuation by the accused the same has to be accepted. Therefore I hold that the said entire cost of construction would constitute the asset of the accused.
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52. The asset No.6 deals with seven pieces of agricultural lands measuring in all 9 acre 3 guntas, purchased by the said Eraiah under six sale deeds during the check period. The first such sale deed is dated 27122000 and last one is the 1611 2010. I.O. submits that during the said check period on different dates in all paying Rs.5,57,000/ the said lands were purchased by Eraiah. I.O. further submits that since the said Eraiah received three lands measuring 3 acre 15 guntas in partition before the check period and also purchased 6 acre 23 guntas out of his agricultural and horticultural income from the said 3 acre 15 guntas, no amount spent for purchase of said 9 acre 3 guntas during the check period is included in the asset of the accused. In this context he refers to file No.7, documents seized and produced along with file No.6 and certified copies of the sale deeds obtained from SubRegistrar and enclosed with file No.2. Obviously when no amount is added in the kitty of the accused as an asset in relation to the said 9 acre 3 guntas of land, there can be no grievance by the accused.
53. Similarly the asset No.7 is the cost of construction of two houses at Somegowdanapalya by said Eraiah. I.O. alleges that in the year 2010 the said Eraiah renovated house situating at Spl.C.525/2014 83 Somegowdanapalya and constructed a garden house in Veeranayakanahalli in the year 2008. He got valued the said two properties through PW.5 and as per the valuation done by that officer cost of renovation and construction of said houses was at Rs.17,80,184/, but as said Eraiah held 3 acre 15 guntas even before check period and he had agricultural and horticultural income, he has not included the said cost in the asset of the accused. In that regard he produces documents in file No.7 and file No.2. Even in respect of this it goes without saying that when no amount is going to be added in the asset of the accused certainly he will not dispute the said finding, rather welcomes it.
54. In so far as asset No.8 to 15 are concerned, once again I want to place it on record that accused is fair enough in not disputing the inclusion of the said sums in his assets. However, on that pretext Court cannot all together leave these assets and take them for granted. It is the duty of the Court to weigh the allegation of the prosecution notwithstanding the fact that the accused has no grievance in respect of inclusion of said assets. So in that background I would briefly refer to the said assets and corresponding documentary evidence produced in relation to each of them.
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55. Asset No.8 is amount standing to the credit of Canara Bank S.B. a/c No.2737101012721 held in the name of said Smt. Gangamma. As per the prosecution the said account was opened on 992010 and as on the date of raid (2262012) the said account was having credit balance of Rs.4,92,948/. In order to substantiate the same PW.9 relies on account extract furnished by Canara Bank, GKVK branch, Bengaluru. It shows that as on 56212 amount as alleged by the I.O. was the credit balance in her account. Along with the said bank account extract which is at page No.177 and 178 of Ex.P19, PW.9 also produced account opening form of said Gangamma at page Nos.172 to 175.
56. Asset No.9 is again the credit bank balance, but of accused maintained in the very Canara Bank, GKVK branch at S.B. a/c No.2737101012997. According to the prosecution accused opened that account on 1112011 and as on the date of raid it was having Rs.1,29,889/ at its credit. The document produced by PW.9 to this effect are part of Ex.P19 and are at page Nos.170, 171 and 179.
57. Asset No.10 is again the S.B. a/c of the accused in the State Bank of Mysore, Sahakaranagar branch and as per the Spl.C.525/2014 85 prosecution accused opened that account at 552009 and as on the date of raid the said account 64043612452 was having credit balance of Rs.22,983/ and document to that effect is at Ex.P75. Copies of the account opening form and statement of account extract produced by the State Bank of Mysore reveal that as on 2152012 the said account was having the credit balance of Rs.22,983/. This can be seen on page No.195 of the said document.
58. Asset No.11 is credit balance in S.B. a/c No.559010100044323 of Axis Bank, Rajajinagar, which is again in the name of the accused and as per the prosecution accused opened that account on 2822004 and as on the date of raid it was having credit balance of Rs.49,169.67 paise. PW.9 collected copy of the account opening form from the said bank along with account extract. Account opening form is at page Nos.197 to 199 of file No.2, whereas the bank account extract is at Ex.P18 and as on 862012 (page No.210) the said account was having credit balance of above sum.
59. Asset No.12 is another S.B. a/c of the accused bearing No.10356468492 maintained in State Bank of India, Cauverybhavan. Prosecution alleges that the said account was Spl.C.525/2014 86 opened on 1752003 and as on the date of raid it was having credit balance of Rs.4167.23 paise. Copies of the bank account extract received from the said bank by PW.9 and marked as Ex.P20 (Page No.213) reveals that the said account was having the above sum as a credit balance.
60. Thus it is seen that asset Nos.8 to 12 are the credit bank balances of Smt. Gangamma and accused maintained in different banks and in the course of investigation PW.9 secured copies of the account opening form and account extracts to demonstrate that all these accounts were opened during the check period by the accused and his wife and amount standing to their credit as on the date of raid. Perhaps for the said reason knowing the end result, accused also did not like to dispute the said assets.
61. Asset No.13 is Hero Honda Karizma motor cycle bearing No.KA04HE197 and its value. Prosecution alleges that the said motor cycle was purchased by the accused from Indian Motors, which is a outlet of Nikky Motors, on 292010 by paying Rs.92,287/. To corroborate the said allegation PW.9 has produced Exs.P65 and P55 consisting of letter of said Nikky Motors with copy of the invoice and booking form.
Spl.C.525/2014 87 They show that on 292010 accused booked and purchased that vehicle by paying Rs.92,322/. Ex.P55 also contains the information received from R.T.O., Yeshawanthapura and the said authority informed that at the time of registration of the said vehicle accused paid Rs.12,319/ towards life tax and Rs.137/ towards registration. Therefore at the time of purchasing of motor cycle accused issued DD/cheque No.000685 dated 292010 drawn on HDFC bank for a sum of Rs.95,287/ in favour of Nikky Motors. It appears that I.O. has omitted Rs.14,384/ paid by the accused through DD/cheque No.000690 dated 692010 (page No.217) to include them as expenditure. If life tax and registration fee are included in the cost of the vehicle, definitely it would be more than Rs.95,287/ at any rate restricting the amount to the cost of vehicle I take Rs.95,287/ as cost of that asset.
62. Asset No.14 is in relation to Maruthi Swift Dezire car bearing No.KA02MF4790, that was found during the search of house of the accused. Since later Investigation Officer realized that the said vehicle stands in the name of DW.6, he has not included any amount in the asset of the accused. Documents pertaining to that vehicle are produced at Ex.P40 and P58, naturally accused cannot have any grievance for the Spl.C.525/2014 88 same.
63. Asset No.15 is the cash of Rs.1,35,000/ seized on 226 2012 i.e., on the date of raid from the house of the accused situating at No.94, AGP Layout, Mahalakshmi Layout, Bengaluru. Seizure of this amount is noted in Ex.P1 by PW.9. Averment to this effect can be seen at page No.5 of Ex.P1. There it is stated that on the search of west facing room in the ground floor the said amount was found in an iron bureau. Mahazar further reads that in the presence of PW.1 and 2 the said amount was returned to the accused and no part of it was seized. This fact has not been disputed by the accused either in the crossexamination of PW.1 and 2 or in the cross examination of PW.9, therefore certainly it also forms part of the asset and accordingly it is shown.
64. Asset No.16 and 17 are the value of gold and silver ornaments found during the search of the house of the accused situated at No.94, AGP Layout, Near Best Beginner school, Mahalakshmi layout, Bengaluru on 2262012. Since accused has disputed the inclusion of value of the said ornaments and reason assigned for their inclusion by the I.O. are also more or less same, for the sake of convenience I have taken these two assets simultaneously.
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65. It is substance of the allegation of the prosecution that when PW.9 had been to the house of the accused along with PW.1 and 2 and search warrant and to search the said house in all 1442.75 grams of gold ornaments were found. Out of the said ornaments 10.60 grams of gold ornaments consisting of small rings of children, unusable dollars, ear rings and nose let were returned to the accused and remaining 1432.15 grams gold ornaments were seized under the mahazar which is already marked as Ex.P1. It is also alleged that PW.3 - appraiser was summoned to the house of the accused and through his assistance the said ornaments were weighed and valued as accused did not disclose their year of purchase or furnish bills and receipts to show when the said ornaments were purchased. It is further stated that in his initial APR for the year 199899 accused disclosed gifting of 50 thola of gold to his wife by her parents at the time of his marriage and subsequently in his APR in the year 200203 he declared gifting of another 3 thola of gold by his inlaws to his wife. Therefore accepting the gift of 53 tholas of gold out of 1442.75 grams of gold ornaments deduction was given by the I.O. at 530 grams and remaining 912.75 grams gold ornaments were valued at the average rate of Rs.1,000/ per gram as such Rs.9,12,750/ Spl.C.525/2014 90 was considered as asset of the accused (asset No.16). With respect to silver articles prosecution alleges that during the search of that house in all 4762 grams of silver articles were found and even in respect of said articles accused did not produce any receipt nor offered any explanation as to when they were acquired, so with the help of PW.3 after weighing, their value was fixed at Rs.25/ per gram. It is also alleged that for the year 200910 accused submitted his assets and liabilities twice and in the first APR of that year he did not disclose acquisition of silver but in the second APR filed in that very year he disclosed the possession of 2 kgs., silver, therefore being confirmed about acquisition of so much of silver subsequent to he joining service, value of entire 4762 grams silver articles i.e., Rs.1,19,050/ is taken as his asset (asset No.17). In order to prove the said allegation the prosecution has relied on Ex.P1, evidence of PW.1 to 3 and PW.9 as well as APRs of the accused obtained from the office of Commissioner of Police, Bengaluru (Ex.D3).
66. However, seriously disputing the inclusion of the value of the said ornaments in his assets accused submits that along with his schedule information he has filed the affidavit of his father, who stated that the said ornaments belongs to him and Spl.C.525/2014 91 also the affidavit of his brother, who supported the claim of their father. He also contends that his father and wife (Gangamma) had applied for interim custody of the said ornaments during the crime stage itself and this Court has conceded their prayer, therefore it is wrong on the part of the Investigation Officer in ignoring his explanation. In that regard he refers to the page No.1028 to 1052 of Ex.P82 (file No.7 volume No.5). He also questions the wisdom of PW.9 in his failure to examine his father on this aspect. In order to show that I.O. has committed error by nonexamining his father, he refers to the crossexamination of said witness recorded at para No.101. Thus he prays to exclude value of gold and silver articles as his assets.
67. In the context of the arguments canvassed by the both side I have evaluated both oral and documentary evidence placed by them. It is not in dispute that during the search of the house of the accused, which he had taken on rental basis, 1442.75 gold ornaments and 4762.00 grams of silver articles were found in that house. The mahazar prepared in that house viz., Ex.P1 not only contains the signature of the accused as he was also present and also of witnesses who witnessed the search. Except the signature of the accused signatures of Spl.C.525/2014 92 others are distinctly marked as Ex.P1(a) to P1(d). It is not the case of the accused that he was not present during the search and his signature was obtained on mahazar subsequently. Even assuming that the said Ex.P1 was prepared later and signature of PW.1 to 3 were obtained subsequently in the Lokayuktha police station as suggested by the accused in the crossexamination of said PW.1 to 3, this accused being Police Inspector, there was no need for him to sign the mahazar on some other day, in a place where it was not prepared and that too without any protest. From the signature of accused on page No.15 of Ex.P1 it can hardly be imagined that his signature was obtained subsequently or under pressure and in the place other than the place searched. Through out in his chief nowhere accused(DW.9) whispered that he was made to sign Ex.P1 under duress and on some other day i.e., other than 2262012, therefore any amount of crossexamination of PW.1 to 3 on this aspect is of no help to him. The very suggestions made by the accused in the crossexamination of PW.1 and 2 would show that PW.9 did not disclose them till they raided the house of this accused as to where they were being taken and for what purpose. The said fact elicited in the cross examination of said witnesses fortifies the confidentiality maintained by the PW.9 in the investigation. But quite Spl.C.525/2014 93 strangely the said two witnesses were questioned whether did they instruct the PW.9 to prepare the mahazar or value of ornaments. In this regard I do not find any provision in the Cr.P.C. which mandates the Investigation Officer to seek instructions from the panchas to prepare the mahazar or that very panchas have to explain or narrate the value of the items seized or found. Instead as per Sec.100(5) of Cr.P.C. the search has to be made in presence of witnesses, but no person witnessing such a search shall be required to attend the Court as a witness. The said provision do not speak anything more on the role of such witnesses than what is contained in sub section 5. Therefore if any averments are there in the Ex.P1 regarding the instructions by PW.1 and 2 in preparing it or in valuing the items found in the house, that is only a misnomer and it is not the requirement of law. Both PW.1 and 2 categorically stated that during the raid of that house accused was very much present and the said aspect was not at all disputed by the accused in their crossexamination.
68. If the above findings is arrived, if at all the accused had any grievance in weighing or valuing the ornaments, he ought to have raised his objections or made note of it on the Ex.P1 when he signed it. No such thing can be inferred from that Spl.C.525/2014 94 mahazar as explained above. Coming to the valuation of the said ornaments by PW.3, on going through the evidence of the said witness I can only say that he was won over by the accused so for that purpose the said witness turned hostile and denied the work carried out by him, including the valuation. To show that the said ornaments were purchased long back or their family possessed them from the days of their ancestor accused has not produced any piece of document along with his explanation offered at page 1028 to 1052 of Ex.P82(D). He barely submitted that releasing of ornaments by the Court for the interim custody of his father and his wife and not questioning of the same by prosecution affirm that the said ornaments are nothing to do with him and they belonged to his parents and they kept them in his house for safe custody as they were residing in village. He also stated that his wife declared the possessing of ornaments by her in her I.T. returns without enclosing the relevant I.T. return/s or without stating in which year I.T. return she so disclosed. First of all I doubt that submission for the simple reason that in the I.T. returns there will be no declaration regarding possessing of ornaments. It is true that case file reveals filing of Crl.Misc.P.No.1899/2013 and 1900/2013 by his father and wife for interim custody of the ornaments and articles seized in this case. It is also true Spl.C.525/2014 95 that then jurisdictional Court entertained their applications favourably and released the ornaments in their favour pending disposal of the case subject to conditions. Whether such releasing of ornaments, which is only an interim measure, will lead to an inference that it is the final finding of the said Court. It is least to say that any finding recorded in the said Crl.Misc. Petitions has no bearing when the matter is taken up for disposal after full dressed trial. Therefore one need not attach any importance if prosecution does not question such interim order.
69. When opportunity was given to the accused to file his schedule information by the Investigation Officer and accused also took pain to produce as many as five volumes running thousands of pages, he did not produce even a single document to show that his wife and parents possessed ornaments as claimed by him. Even he did not examine his father though he took interest to examine 11 other witnesses other than him, as observed earlier. While discussing on asset No.1 and 4 I have already elaborately dealt with non examination of the said crucial witness (Eraiah) and consequences that would follow. Therefore without reiterating the discussion made earlier I would straight away refer to the Spl.C.525/2014 96 APRs filed by the accused, forwarded by the Police Commissioner to the Investigation Officer. As I said earlier the said APRs at page No.87 to 113 of file No.1 and they are collectively marked as Ex.D3 during the evidence of PW.10.
70. On going through the said APRs closely, as rightly alleged by the prosecution in his first APR filed in the year 199899 (page No.112 & 113) accused disclosed possessing of 50 thola of gold, which was gifted to his wife by his inlaws at the time of his marriage. The said disclosure was made on 104 1999. As I said earlier it being the first APR of accused after he joined service on 1261996, that has to be taken as a base document for further acquisitions or alienations. In that APR he did not declare possessing of silver articles. Then subsequently in the APR filed for the year ending 3132003 (Page No.104 & 105) in form No.2 accused stated that 3 thola gold was gifted to his wife by his motherinlaw and including the earlier disclosure dated 1041999 in all he possesses 53 grams of gold. Even in the said APR he did not whisper regarding possessing of silver articles. But when he filed his APR for the year ending 3132009 (page No.97 & 98) in form No.2 without showing any kind of acquisition or any form of acquisitions he suddenly increased the quantity of gold from Spl.C.525/2014 97 53 tholas to 62 tholas. This kind of unexplained increase can be seen by 7 grams in his APR for the year ending 3132005 and 3132006 also. Curiously when he filed APR for the year ending 3132010 he again disclosed possessing of 62 tholas of gold with clear endorsement that no fresh purchase was made during that year (page No.97 & 98). Having filed that APR he again filed one more APR for the very same year ending 313 2010 (page No.93 to 95) increasing the possession of gold to 64 tholas and explaining that compare to the last year there is increase of 20 grams and said increase is due to gifting of ornaments to his children during their birthday celebrations. Then with respect to silver articles for the first time at Sl.No.2 (page No.95) he stated that he possesses 2 kgs. of silver valued at Rs.2 lakhs and by inserting the word "ditto" in column No.4 to 7 of form No.2. The Sl.No.1 deals with the gold ornaments. If he inserted the word ditto in column No.4 to 7 it means that like in the case of gold the said silver articles were presented to him and to his wife at the time of marriage and he disclosed them in the year 1999 itself when he filed the first APR and there is 20 grams increase of silver articles as they were presented to his children during their birthdays. The threadbare reference to his APRs in sequence would indicate that there was no discipline or seriousness either in filing the Spl.C.525/2014 98 them nor in receiving and acting upon them by his superiors. Despite of these things very liberally Investigation Officer gives deduction of 53 tholas of gold in the total quantity of 1443.75 grams but sensibly and knowledgeably he did not give any deduction in the total quantity of silver articles seized from the residence of the accused. No man of ordinary prudence would subscribe to such APRs nor acknowledge them as true disclosure in terms of conduct rules governing the Government servants.
71. I again say that except filing legally inadmissible affidavits of his father and brother along with his schedule information accused did not take care to examine them on his behalf to show such possessing of gold ornaments and silver articles and also to further demonstrate that they were entrusted to him to his safe custody as his said parents were residing at village, therefore the said explanation of the accused cannot be accepted by any means. The finding of the Investigation Officer that balance gold ornaments weighing 912.75 grams and 4762 grams of silver articles are asset of the accused cannot be rejected without any valid reason to do so.
72. Now coming to the valuation of the said ornaments and Spl.C.525/2014 99 their quantification, as I noted earlier PW.3 was won over by the accused as a result he turned hostile and denied all the suggestions of the Special P.P. However, that will not deter the Court in arriving at the real truth of the matter. It is not in dispute that gold and silver prices would vary day in and day out and their prices are determined and fixed at the international level. When such is the case Court has to take judicial notice of the value of the said precious metals as contained in Sec.57 of the Indian Evidence Act, 1872. Since the search and seizure of the said metals were made in the year 2012, while arriving their value considering the price prevailing in that relevant year as it was Rs.31,050/ for 10 grams then, I.O. values at Rs.1,000/ per gram i.e., Rs.10,000/ per 10 grams. The said valuation cannot be called as excessive or unjust. Likewise in the year 2012 average price of silver per gram was at Rs.48/, but without taking that price I.O. values it at average price of Rs.25/ per gram and the same cannot be called as vindictive valuation. Hence, for the aforesaid discussion rejecting the contention of the accused that he has nothing to do with the said ornaments and articles, I concur with the finding of the I.O. that Rs.9,12,750/ and Rs.1,19,050/ have to be added as assets of the accused.
Spl.C.525/2014 100
73. Asset No.18 constitutes value of household articles. As per the prosecution during the search of the house of the accused whatever household articles and items found in his house were noted down and an inventory was made as per Ex.P1 and while preparing that inventory value of the said items were assertained through accused, his family members and panchas. Prosecution further alleges that though the accused disclosed in his APRs stating that the said household articles are his ancestral property, since his parents and his brother are residing separately in the village, his explanation cannot be accepted and total value of the said items i.e., Rs.5,94,645/ is to be taken as asset of the accused.
74. But opposing the said analogy, accused contended that while noting down the price of the said items opinion of the experts like cloth merchant to know the value of the sarees; opinion of the carpenter in case of wooden items; the details of the electronic items like date of their manufacture, company and prices paid for them were not obtained and when he declared in his first APR about the possessing of the household articles worth Rs.1,00,000/, atleast the said amount ought to have been deducted and in so far as price variation is concerned 10% margin is to be deducted making the total Spl.C.525/2014 101 value of the said household articles of Rs.4,35,181/ against the value shown in the final investigation report. In this regard he has relied on the crossexamination of PW.9 recorded on page No.102 to 105 of evidence of PW.1 to 3.
75. Keeping in mind the submission of the parties I have gone through Ex.P1 and particulars of items found there and also price noted there. In so far as the involvement of PW.1 and 2 either in instructing the PW.9 to prepare the mahazar or in narrating him about the price of the items is concerned, while discussing on the previous assets I have already stated that there is no such legal mandate. What the law requires is that mahazar has to be conducted in presence of respectable witnesses and they need not attend the court. The object of law in mandating the presence of witnesses is to safeguard the interest of the accused as with his preoccupied notion Investigation Officer should not proceed with investigation prejudicially to nail the accused somehow. Ofcourse oflate in number of decisions it is held that such perverted opinion is wrong. Therefore without giving too much credence to the evidence of PW.1 and 2 that they did not instruct to write the mahazar or they did not contribute in noting down the price of the items seized, I have gone through the APRs filed by the Spl.C.525/2014 102 accused and collected by the I.O. and are produced at Ex.D3. The keen comparison of his APRs right from the beginning show that in a very casual manner accused has filed them and in a similar way his superior officers have received them, as noted by me earlier.
76. In his first APR of 199899 accused declared possessing of household items worth of Rs.1,00,000/ stating that he has received them from his father. In the next APR with year ending 3132000 he declared purchase of Rs.10,000/ worth household articles and enhanced their value at Rs.1,10,000/. For the years ending 3132001 and 3132002 he did not report anything about these items, but suddenly when he filed his APR for the year ending 3132003 he reported their value as Rs.2 lakhs with no intimation as to when he purchased additional Rs.90,000/ worth items. Ex.D3 do not contain APRs for the year ending 3132004, 3132007, 3132008 and 3132011, so APR for the year ending 3132005 show the very reporting of Rs.2 lakhs worth items with addition of Rs.50,000/ worth items in the next APR with year ending 313 2006. Even for that year he did not report how he acquired them and what was the sources for the said additional acquisition. Thereafter in the APRs with year ending 3132009, Spl.C.525/2014 103 two sets of 3132010 and one set of 3132012 he consistently reported the possession of Rs.2,50,000/ worth items.
77. Intentionally I have extracted from his form No.2 of his APR to show how accused is inconsistent even while reporting to his department. It cannot be imagined that when he had already entered service his father would continue to contribute for purchase of additional household articles. Even if such presumption is to be made, there must be such reporting by him whenever enhancement in their value was made with additional acquisitions. For the aforesaid discussion the submission of the I.O. that because parents and brother of the accused are residing separately so no household item could have been given by them to the accused has to be rejected. The fact remains that accused reported the possessing of Rs.1,00,000/ worth household articles as on the date of filing of his first APR, therefore as rightly submitted by the accused the said value has to be deducted in the asset value shown by the I.O. In that case it would come to Rs.4,94,645/ (Rs.5,94,645
- 1,00,000).
78. Regarding further contention of the accused that as assistance of the experts is not obtained, there needs to be 10% Spl.C.525/2014 104 deduction in the value of the assets, nevertheless I am not convinced about his said statement which has no basis, looking to the fringe variation in the valuation of the items when an ordinary prudent man would sit for valuing them, I concede to the submission of the accused and allow deduction of 10% in the value of the household articles, then it would be Rs.4,45,181/ (Rs.4,94,645 - 4,91,464). Since PW.3 is a appraiser/jeweller, I do not think his evidence needs to be assessed in respect of these items. At any rate as submission of the accused is accepted in its entirety in relation to this asset, any further analysis or evidence of PW.9 is redundant. So summing up discussion on this asset I take the total value at Rs.4,45,181/ against the allegation of the I.O. that they are worth Rs.5,94,645/.
79. The asset No.19 is the amount paid by the accused while obtaining temporary electricity connection to site No.659 of HMT Layout held in the name of his wife. As per the I.O. accused and his family paid Rs.5,220/ to obtain the said power connection and in order to substantiate the same Ex.P 59 (page No.282 to 283 of file No.2) is produced. On verifying the said undisputed asset I find that as per the report of AEE, N4 Subdivision, Peenya, accused paid the said sum under two Spl.C.525/2014 105 receipts - 55563 dated 2512011 and 2388 dated 3132011 i.e., during the check period.
80. Asset No.20 is amount paid by the accused and his family members towards application fee, deposit and development cost to obtain power connection to the basement constructed in site No.54/9/137/2 of Sannakkibayalu, Kamakshipalya. I.O. has produced Ex.P85 (page No285 of file No.2) to show that accused and his family paid Rs.26,680/ towards obtaining power connection to the said property.
81. Asset No.21 is again in respect of site No.54/9/137/2 to which accused obtained temporary power connection by paying Rs.3,637/. In respect of this I.O. has relied on very Ex.P85, but page No.289.
82. Asset No.22 is the deposit amount of Rs.1,250/ paid in the name of said Gangamma for obtaining land line connection from BSNL. The said service at phone No.23497601 was obtained on 27102011 i.e., during the check period and for that I.O. relies on Ex.P68 (page 291 file No.2).
83. Asset No.23 is payment of Rs.5,000/ as membership fee by the accused to Shakthi Hills Resorts Pvt.Ltd., at membership Spl.C.525/2014 106 No.SR/531/10. It is interesting that though the said resort sent a letter stating that it extended the membership facility on honorary basis without receiving any membership fees from the accused through its letter dated 2872012 (page Nos.294 & 295 of file No.2), accused stated that he has paid Rs.5,000/ as membership fee.
84. Asset No.24 is the payment of membership fee of Rs.14,600/ to Estate Club by accused. I.O. has produced Ex.P79 (page 296 to 298 of file No.2) to substantiate his said contention.
85. Asset No.25 is payment of Rs.1,900/ towards deposit and for obtaining of double barrel cylinder (DBS) deposit by accused to Ganapathi Enterprises for availing cooking gas connection. The letter of the said Enterprises is at page 299 of file No.2.
86. Lastly the asset No.26 is payment of Rs.1,74,040/ in the name of said Gangamma to Margadarshi Chit Fund at chit No.LT019TJN/44 till the date of raid. I.O. alleges that accused and his family started to contribute to the said chit on 872010 by paying Rs.10,000/ per month and till 2262012 the above Spl.C.525/2014 107 sum of Rs.1,74,040/ was paid by the accused. In this context he has produced Ex.P72 (page 300 to 302 of file No.2).
87. The brief reference to the asset Nos.19 to 26 and revised written arguments of the accused would show that he has no grievance in adding these amounts/sums in his assets and quite naturally he has not taken pain to crossexamine the I.O. on these aspects. Therefore the said amounts can be squarely considered as the assets of the accused. Having made this much of discussion on all 26 assets of the accused, it is time to lay hand on various expenditures of him and his family running from Sl.No.1 to 42.
88. Even in relation to these 42 different heads of expenditure, in his written arguments accused has conceded major heads of expenditure except the expenditure Nos.1, 5, 6 and 27, therefore I take up discussion only on the disputed heads initially. Amongst the said four disputed heads of expenditure at Sl.No.1, 5 and 6 are corelated and findings on them is entirely based on the findings of asset No.1 and 4. As discussed earlier accused seriously disputed the purchase of site No.659 of HMT Layout and site No.54/9/137/2 of Saneguruvanahalli, Kamakshipalya by him as a benami transactions. All along he contended that the said assets were Spl.C.525/2014 108 purchased by his father out of the agricultural, horticultural, milk diary, sheep rearing and such other incomes. But by making thorough discussion I rejected his claim and held that the said two assets were though purchased in the name of said Eraiah, infact they were purchased by accused and they are his benami acquisitions. Once the above finding is arrived it is least to say that whatever stamp duty and registration fee paid for registration of two sale deeds on 10112006 and on 298 2005 respectively ought to have been paid by the accused. The expenditure No.1 relates to payment of stamp duty and registration fee towards purchase of site No.659 and as per Ex.P26 Rs.1,17,485/ was paid as stamp duty and Rs.14,270/ was paid as registration charges. Thus in all Rs.1,31,755/ was paid to purchase the said property. Likewise to purchase site No.54/9/137/2 of Saneguruvanahalli as evidenced by Ex.P25 Rs.18,080/ was paid as stamp duty and Rs.2,280/ was paid as registration charges i.e., in all Rs.20,360/ was paid by the accused. This amount is the expenditure No.6. In addition to the above two sums as property tax was paid on site No.659 to BDA, nevertheless it was in the name of said Eraiah, again the said payment of tax amount of Rs.8,591/ has to be included in the expenditure of the accused. In this regard I.O. has produced Ex.P43 and it is expenditure No.5. I think no more Spl.C.525/2014 109 deliberation is required to treat them as expenditure of the accused in the light of treating the said two assets as assets of the accused, no matter in whose name they stood.
89. The next expenditure which is disputed is the invisible/nonverifiable expenditure of accused and his family, got computed by the PW.9 through the Deputy Director of Statistics, Karnataka Lokayuktha, Bengaluru. The report furnished on the basis of information provided by the PW.9 is at Ex.P71. As per the said report the said authority computed the family expenditure based on the number of family members, their food habits and other particulars provided to it and according to it during the check period accused and his family spent Rs.8,79,393/. At this stage it may not be out of place to again repeat that check period commenced on 268 1996 and ended on 2262012, that means it is spread over almost 16 years. It is also not in dispute that before joining his service accused was already married and his family consisted of two sons born to him. As per the report of the I.O. itself accused married on 3051990 and first son born to him on 26 1991 and second son born on 431994. In other words at the time of joining service his family consisted of four members, but two of them were tender ages. However in the report Spl.C.525/2014 110 without making such distinction of adult and younger members of the family, based on the General Family Income and Expenditure Survey 2009 report of Karnataka, Deputy Director of Statistics arrived the said expenditure. In this background attacking the said Ex.P71 accused contended that he disputes the authenticity of the said report on the reason that the said Thulasiram, Deputy Director is not examined by the prosecution; secondly his two sons were too young and their expenses could not have been equated with adult, till they attained the age of majority on or about 2008 to 2012; thirdly as their family was a predominantly an agricultural family, they hardly used to purchase food grains, vegetables and other household requirements from the open market and fourthly to compute the expenditure from 1996 survey report of 2009 is relied by the said authority which cannot be countenanced by any means and fifthly their family was taking only vegetarian food. Therefore accused sought for deduction of 10% in the over all expenditure arrived by the said authority. I would attend the said contentions of the accused one after the other before quantifying the amount.
90. It is true that prosecution did not examine Thulasiram, Deputy Director of Statistics, Statistical wing of Lokayuktha for Spl.C.525/2014 111 the reason that when summons was issued to the said witness it was returned with a report that the said Officer is no more. This can be got confirmed through order sheet proceedings dated 2462017. When such is the case it would be improper to attribute anything against the prosecution for non examination of the said person, who was no more as on the date of issuing summons to him. Moreover, when the said authority discharged its official function as an expert in the field as per Sec.114(g) of the Evidence Act, Court has to presume the correctness of that report unless the contrary is proved. Coming to the second contention of the accused that in the year 1996 his first son was five years of age and second son was two years of age and they attained the age of majority in 2008 and 2012 respectively, one cannot dispute it. But on that reason it cannot be said that per capita expenditure of a child would be comparatively less like in the case of an adult. It would be too technical to calculate the family expenditure in that way. In fact when the children are small parents have to take lot of care for their health and sanitation, including by providing nutritious food. That itself infers that per capita expenditure of child may sometimes exceeds per capita expenditure of an adult. Added to that general sample survey reports take note of all the possible such variations and on the Spl.C.525/2014 112 basis of standardized formula, the probable expenses would be arrived. Therefore it may not be proper to go so minute in computing the per capita expenditure of the member of the family. The other contention that as their family was a predominantly agricultural family so they did not depend on outside food grains, vegetables and other requirements etc., though I would agree that accused hails from an agricultural family, but it is too difficult to accept that his day to day needs were to be taken care of by his joint family, that too when he joined service in the rank of SubInspector and served at different places in Karnataka. As per his own applications for medical reimbursement of his parents, they were residing with him and he took their care and paid their medical expenses. I have dealt to this aspect in the ensuing paragraph in detail. But the said things are liberally ignored by the I.O. However, lastly I find some substance in his contention that applying of survey report of 2009 retrospectively from 1996 may not be proper as the said survey report takes note of the prices of the commodity and services prevailing in the year 2009. Therefore to that extent as prayed by the accused 10% reduction is to be given in the total expenditure of Rs.8,79,393/. Fifthly his contention that their family is vegetarian family is straight away rejected in view his statement in Ex.P17 that they take Spl.C.525/2014 113 nonveg also. Accordingly I reduce the said family expenditure to Rs.7,91,454/ (Rs.8,79,393 - Rs.87,939).
91. In his earlier written arguments dated 812019 accused had disputed the expenditure No.34, which is in respect of medical bills of his parents - Eraiah and Smt. Kempamma. According to the prosecution accused spent Rs.2,69,486/ towards treatment of his said parents, who were suffering from cancer and he requested his department to reimburse the said expenses. Particularly I.O. alleges that during the search of the house of accused documents pertaining to the said treatment were traced and after correspondence with the Health Care Global Hospital, Bengaluru, it was learnt that accused paid lesser amount than for the sum he requested for reimbursement. Even then on the reason that accused might have spent for purchase of medicines and for treatment of his parents in other than the said hospital, entire amount sought for reimbursement is treated as his expenditure. But when this accused filed his "revised" written arguments on 21102019 he omitted to include it in the disputed heads of expenditure. Inspite of it I have taken it for discussion just to demonstrate how accused and his family members have tried to mislead the Court and why they are not reliable. For this I straight away Spl.C.525/2014 114 take to the affidavit of said Eraiah. In his sworn affidavit on page No.1046 of Ex.P82(D) at about 15th main from the top or the 8th line from the bottom the said Eraiah allegedly stated on oath that he himself borne his cancer treatment expenditure and also of his wife - Kempamma and general treatment expenditure of his grand son - Praveen Kumar from the joint family income. When such is the case in the applications submitted to his department accused stated that his parents are residing with him and they are dependent on him and since he is the elder son he has paid their treatment expenses. It is not that such statement and declaration in writing are made by him once or twice, but on several occasions and repeatedly, i.e., whenever he filed such applications for reimbursement. The said applications and their annexures are at page No.55 to 194 of file No.5. Therefore even his initial contention that his father has paid the said expenses from the joint family income has to be rejected. Perhaps it is also one of the reason why he did not choose to bring his father to the witness box. It is strange that at one breath accused submits the well to do ness of their family and independent sources of income of his parents from different sources, but when the question of claiming the reimbursement of their medical expenses comes, he submits that they live with him, they are dependent on him and he Spl.C.525/2014 115 spent for their treatment. So I do not find any error on the part of the I.O. to include that amount as sought for reimbursement as his expenditure.
92. Before I advert to the caption income of the accused, I would like to have a glance at undisputed expenditure, so that there should not be any scope to urge that undisputed expenditure are taken for granted. Expenditure No.2 is spending of Rs.2,140/ which constitutes payment of stamp duty and registration fee when the said Eraiah executed the registered Gift deed on 1832008 gifting asset No.1 and 4 to Smt. Gangamma. The document relating to it is at Ex.P27. Expenditure No.3 is spending of Rs.4,085/ as a property tax from the year 200809 till the year 201112 by Smt. Gangamma after execution of Gift deed gifting site No.659 to her and document pertaining to it is at Ex.P41. Expenditure No.4 is spending of Rs.13,700/ for obtaining building plan and license for construction in the said site No.659 and document relating to it is Ex.P42. Expenditure No.7 is property tax of Rs.6,156/ paid towards site No.54/9/137/2 of Saneguruvanahalli subsequent to the gift of it to Smt. Gangamma and document relating to it is Ex.P76. Expenditure No.8 is spending of Rs.12,336/ towards water charges of rented house No.94, AGP Spl.C.525/2014 116 Layout, II Stage, Mahalakshmi Layout, Bengaluru, where the accused was staying at the time of raid and document relating to it is Ex.P41. Infact the said document reveals spending of Rs.66,055/, but I.O. restricts the said amount to Rs.12,336/ alone as expenditure of accused. Expenditure No.9 and 12 are payment of Rs.3,300/ and 78,500/ towards water and electricity charges paid by accused during the check period, wherever he resided. This information is provided by the very accused through his schedule information. Expenditure No.10 is spending of Rs.55,740/ to BESCOM to the rented house of the accused at house No.94, AGP Layout, Mahalakshmi Layout, Bengaluru and document relating to it is Ex.P22. Expenditure No.11 is payment of Rs.1,260/ for obtaining temporary power connection to the site No.659 and document relating to it is Ex.P59. Expenditure No.13 is fuel and maintenance expenses of Hero Honda Karizma motor cycle No.KA04/HE197, stood in the name of the accused and document relating to it is Ex.P55. Expenditure No.14 is insurance premium paid towards said motor cycle and it is Rs.1,682/ and document is Ex.P30. Expenditure No.15 to 17 are mobile and telephone bills of Smt. Gangamma and Chethan Kumar and documents relevant to the same are Ex.P68 & P70. Expenditure No.18 is repayment of loan of Rs.2,66,330/ to Spl.C.525/2014 117 Canara Bank, GKV branch, borrowed for the purpose of construction from A/c No.2737101012721 and document relating to it in Ex.P19. Expenditure No.19 is contribution made to Margadarshi Chit fund at chit No.LT003DBN/44 by Smt. Gangamma and relevant document is at Ex.P18 and in all she paid Rs.19,49,240/. Sl.No.20 is payment of service charge of Rs.668/ by Smt. Gangamma to her above referred Canara Bank S.B. A/c and document to this effect is Ex.P19. Sl.No.21 is payment of service charges of Rs.83/ by the accused to his S.B. A/c No.2737101012997 in Canara Bank and relevant document is again Ex.P19. Sl.No.22 relates to payment of Rs.50/ as service charge by the accused to his S.B. a/c No.64043612452 of S.B.M., Sahakaranagar and document relating to it is Ex.P75. Sl.No.23 is again payment of service charge by accused to his SB A/c at Axis bank and it is Rs.167.33 and document is at Ex.P18. I omit Sl.No.24 as no expenditure is put on the LIC policy of the accused. Sl.No.25 speaks regarding payment of Rs.26,130/ as income tax by the accused to his I.T returns for the year 200910, 201011 and 201112 and relevant document is Ex.P64. Sl.No.26 is payment of income tax of Rs.9,420/ by Smt. Gangamma for the assessment years 201011, 201112 and 201213 and relevant document is Ex.D2 in respect of all these expenditure accused Spl.C.525/2014 118 questioned the wisdom of I.O. to treat the payment of tax by Smt. Gangamma as his expenditure, not her income. I would answer this question when I take up discussion on the different sources of income of the accused and his family members. Sl.No.28 to 30 are the education expenses of Praveen Kumar and Chethan Kumar for their schooling and college. It is stated that accused spent Rs.5,50,985/ and Rs.91,628/ for providing education to Praveen Kumar and Rs.1,94,275/ to Chethan Kumar. The relevant documents are Ex.P23, 24, 29 and 32 to
38. Sl.No.31 is payment of Rs.4,14,960/ as rent by accused when he was working at different places during the check period and this information is provided by the accused through his schedule information. Sl.No.32 and 33 are in respect of payment of security deposit of Rs.1,50,000/ and rent amount of Rs.5,20,830.90 paise by accused to his rented house at No.94, AGP Layout, Mahalakshmi layout and relevant document is Ex.P63. Sl.No.35 & 36 are in respect of spending of Rs.41,954.78 and Rs.5,839.70 towards treatment of said Praveen Kumar and Chethan Kumar by the accused and relevant document is Ex.P69. Sl.No.37 to 39 relates to treatment expenses of Smt. Gangamma during the check period and they disclose incurring of Rs.1,305/, Rs.150/ and Rs.600/ by accused and relevant documents are at page 102 to Spl.C.525/2014 119 108 of file No.5, Ex.P28, Ex.P56 and page 151 of file No.5. Sl.No.40 reveals payment of premium amount of Rs.14,185/ towards policy purchased for the security of the house built in site No.659 of HMT Layout and relevant documents are Ex.P19 and P66. Sl.No.41 is payment of Rs.8,115/ for treatment expenses of accused himself and relevant document is Ex.P78. Lastly Sl.No.42 is the hotel bill payment of Rs.30,989/ by accused when he hosted party to his friends at Royal Orchid and the relevant document is Ex.P87.
93. Having made discussion on the assets and expenditure of the accused now I advert to para 10 of Ex.D4 i.e., various heads of income dealt by the Investigation Officer. Out of 15 heads of income accused disputes the amount shown in Sl.No.3, 4 and 5 and he urges his additional sources of income which have been allegedly left out by the I.O. In other words he has not disputed the sources of income at Sl.Nos.1, 2, 6 to
15. Instead of directly discussing on the sources of income at Sl.Nos. 3 to 5, I would like to have birds eye view on the undisputed sources of income briefly. Sl.No.1 of this part deals with net salary received by the accused during the check period and as per the prosecution accused received Rs.16,56,157/ and this amount has been arrived by excluding Spl.C.525/2014 120 the compulsory deductions and optional deductions the accused made and also by including amounts received towards leave surrender, arrears of pay and leave salary. The relevant documents are produced by the I.O. at Ex.P44 to 52. Sl.No.2 is Rs.12,444/ received by the accused as cash award by the department and this amount has been shown based on the schedule information provided by the accused. Sl.No.6 is the loan of Rs.16,86,000/ borrowed by the said Gangamma from Canara Bank, GKV branch for construction of house and relevant documents are at Ex.P19 and 66. She also allegedly borrowed Rs.7,23,210/ and Rs.9,00,000/ from DW.2 and DW.1 through cheques i.e., in all Rs.16,23,210/ and documents pertaining to said transactions are again Ex.P19 and P66 as well as Ex.D2. It is interesting that on going through the evidence of DW.1 and 2, I notice that except stating regarding the alleged hiring of centering materials by him from said Gangamma DW.1 did not whisper regarding lending of Rs.9,00,000/ to her in two installments of Rs.5,00,000/ and Rs.4,00,000/ on 13122011 and 3012012 respectively. Likewise DW.2 except deposing on the rental agreement entered between him and said Gangamma did not utter even a single word regarding extending of hand loan of Rs.7,23,210/ to her on 1322011. Since said alleged transactions took place Spl.C.525/2014 121 through the bank I accept the version of I.O. The said hand loan income is at at Sl.No.7 and thus Smt. Gangamma received Rs.16,23,210/. At Sl.No.8, I.O. alleges receipt of Rs.71,111/ by Smt. Gangamma in the form of interest from Canara Bank, GKVK branch in her S.B. A/c No.27371010112721 i.e., again evidenced by documents Ex.P19 and P66. Sl.No.9 speaks regarding receipt of Rs.2,813/ as interest income by the accused from Canara Bank, GKVK branch in his S.B. A/c No.2737101012997 and relevant documents are Ex.P19 and P66. Sl.No.10 says regarding receipt of income of Rs.7,088/ by the accused as interest in his S.B. A/c No.64043612452 of State Bank of Mysore, Sahakarnagar branch and relevant document is Ex.P75. At Sl.No.11 I.O. alleges receipt of Rs.34,717/ by accused as interest in his S.B. A/c No.559010100044323 and the relevant document is Ex.P18. At Sl.No.12 it is stated that accused received Rs.1,980.23 paise as interest in his S.B. A/c No.10356468492 of State Bank of India, Cauvery bhavan and relevant document is Ex.P20. Sl.No.13 deals with receipt of Rs.19,90,000/ as chit amount by Smt. Gangamma from Margadarshi Chit Fund in chit No.LT003DBL/44 and the relevant documents is Ex.P80. Sl.No.14 says regarding receipt of income of Rs.74,999/ by accused from his LIC policy No.362103660 and relevant Spl.C.525/2014 122 document is Ex.P39. The last undisputed income is receipt of Rs.1,10,277/ by the accused towards reimbursement of medical expenses of his parents against his claim of Rs.2,69,486.55 paise and relevant documents are Ex.P60 and P86.
94. At Sl.No.3 of the sources of income I.O. alleges receipt of Rs.7,50,000/ as a rental income by Smt. Gangamma from her multistoried complex constructed in site No.54/9/137/2 (asset No.4). As mentioned earlier prosecution alleges that during the search of house of Lakshmipathireddy PW.9 seized alleged mortgagecumlease deed dated 3072011 and after investigation he came to know that, that was got up for the purpose of shielding construction expenses incurred by the accused even before 3072011. As discussed earlier prosecution further contends that during the investigation I.O. collected documents from BESCOM as per Ex.P57 and they revealed letting out the ground floor and second floor to said Lakshmipathireddy, DW.6 and to one Balakrishna. Based on the said copies of the rental deeds including refundable security amount received from the said tenants and rent amount mentioned in those agreements I.O. arrives at the rental income of the accused through the said asset no.4 at Spl.C.525/2014 123 Rs.7,50,000/. This has been strongly opposed by the accused on the reason that when no such declaration of income was made either by him or by his wife it is wrong on the part of the Investigation Officer to show it as his rental income and this has been shown with an intention to eclipse the receipt of Rs.15,00,000/ as a mortgage amount from DW.6. On going through their submissions I find that discussion on this source of income overlaps the discussion made by me earlier while recording my finding on asset No.5. I have already recorded my finding that the said mortgagecumlease deed/Ex.D5 is inadmissible and unreliable by making thorough analysis. When such is the case the contention of the accused that the rental agreements entered with DW.6, Lakshmipathi and Balakrishna were only for the purpose of obtaining additional power connections has to be rejected and it is already rejected. As rightly argued by the prosecution if the said mortgagecum lease agreement was a genuine document it should have been in the custody of DW.6. But given facts of the case show that it was recovered from the house of Lakshmipathireddy along with other documents when he was nothing to do with the said documents. It was contended by the accused that his father had entrusted the said documents to the said Lakshmipathireddy for prepring of partition deed. Even the Spl.C.525/2014 124 said submission cannot be accepted as admittedly said person is not a Deed writer or a Lawyer, instead he is a Contractor as stated by accused in his schedule information. The said version is also unbelievable for other reasons also. Firstly DW.6 has not explained how he lost custody of Ex.D5 and for what reason. His entire evidence is silent on that point. Moreover, when already the said Eraiah had allegedly executed Gift deed gifting the said property and site No.659 to Smt. Gangamma and executed Will bequeathing his two houses at the village to his junior daughterinlaw, one has to think again was there any necessity to hand over the documents to Lakshmipathireddy. Accused has not bothered to examine his said friend. So once again turning down his contention that his wife had mortgaged and had leased the said property for development to DW.6 and the rent agreements dated 1782011 were only name sake agreements, I agree with the findings of the Investigation Officer. In that case as recited by the said three agreements at page No.121, 138 and 156 of Ex.P57 Smt. Gangamma received Rs.4 lakhs as a refundable security deposit and as she let out the ground floor at Rs.15,000/ per month to Lakshmipathireddy and Rs.10,000/ each to DW.6 and Balakrishna making the rental income and refundable security deposits received from them in Spl.C.525/2014 125 respect of the said property till the date of raid at Rs.7,50,000/. Hence, I take up the said income as income of the accused.
95. At Sl.No.4 of the part 10 I.O. alleges that accused received Rs.10,69,680/ as his share in the agricultural and horticultural income of the family properties. In respect of this he refers to the APRs of the accused obtained from the office of the Police Commissioner, Bengaluru (Ex.D3) and also pointing out how accused tried to mislead him with enhanced agricultural income through the copies of APRs furnished to him for the year 200001 and 200102 along with his schedule information at page No.1057 to 1084 of Ex.P82(D). Yet still he takes a liberal approach by considering the so called declarations made by the accused in the APRs for the year 200304, 200607, 200708 and also notwithstanding the fact that the accused did not disclose his agricultural income in his I.T. returns for the assessment year 200910 and 201112 and non filing of I.T. returns for remaining years of the check period arriving a gross agricultural income, at 1/3 of it, he computes income of the accused at Rs.8,75,000/ and then by adding Rs.1,94,680/, declared for the assessment year in 201011 in the I.T. returns of the accused, shows his agricultural income at the above sum mentioned at the beginning of the paragraph.
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96. However, contending that deliberately his income from agriculture and horticulture have been down sized in order to involve him in this case accused contends that declarations made by him in his APRs reflect his share and not the total income of the family and no Government employee would declare his entire joint family agricultural income to the department. Regarding nondisclosure of the said agricultural and horticultural income in his I.T. returns except for the assessment year 201011, he submits that since as per the provisions of Income Tax Act, no tax is levied on such income, it is not mandatory, so he did not show them in his I.T. returns. In order to further strengthen his argument he refers to the report of Delvi, a retired Deputy Director of Agriculture and certificate issued by him and he also invites the attention of the Court to the bills issued by HOPCOMS and payments made by it through cheques. Thus he submits that it is wrong on the part of the Investigation Officer to exclude Rs.42,55,320/ from his agricultural income and omission of the I.O. to include income derived by him from 3132012 till check period which is quantified at Rs.2,69,276/.
97. While discussing on assets of the accused I have already Spl.C.525/2014 127 made observations on the claim of the accused on his various sources of income and the gross income as assessed by him, absence of corresponding investment and expenditure as well as inconsistency in his defence. To start with I refer to the affidavit of Eraiah produced at page No.1047 of Ex.P82(D) and as per the said affidavit said father of the accused paid in all Rs.84,60,000/ to the accused as income from agriculture and horticulture during the check period. But as per the written arguments of the accused, to which I pointed out above total income of the accused from agriculture is Rs.53,25,000/ and out of it only Rs.10,69,680/ is shown by the I.O. and Rs.42,55,320/ is left out. So it is totally inconsistent to the affidavit filed by his father. Even if Rs.2,69,276/ is added, which is derived by him post March 2012 till the date of raid, it will not come near Rs.84,64,000/ as stated by his father.
98. One has to question the claim of the accused that income from agriculture declared by him in his APR shows his share of income and not income of joint family. If the sole I.T. return filed by the said Eraiah for the assessment year 201011 (Ex.P53) is gone through as discussed earlier, in the said return he declared his agriculture income at Rs.5,30,845/ (page No.285) for that year. It may be noted that though the Spl.C.525/2014 128 income from agriculture is not taxable if an individual is having income from that source alone, but in the event of having other sources of income, for the rate purpose as per Rule 4 of Schedule EI, the said income is to be added in the total income. If the said Eraiah had paid Rs.9 lakhs as share of the accused for the year 201011 in the agriculture income of the family, he should have also declared very same amount of income or little less in his I.T. return for that year. Likewise accused should have also disclosed his income from said source for that year at Rs.9 lakhs. As extracted above and communicated by the Income Tax department as per Ex.P64(page No.174 to 205 of file No.4) accused filed I.T. returns only during the assessment years 200910, 201011 and 201112 and even of the three I.T. returns he filed till the date of check period he declared only income of Rs.1,94,680/for the assessment year 201011 as against Rs.9 lakhs stated on oath by his father. Not only that if one compares the declarations of accused in his APRs about his agricultural income and statement of Eraiah on the share of accused in the joint family income as tabulated by me on page no.33, there is no semblance in them and there is total inconsistency. Coming to his claim that I.O. did not examine any official of agriculture and horticulture departments of State to know their probable Spl.C.525/2014 129 agricultural income from their joint family lands, I say that when accused himself made declaration in his APRs disclosing the income from that source, there was no occasion for the I.O. to cross verify the same. Without examining the said things Delvi gave a fancy report of agricultural and horticultural income of joint family at Rs.1,49,01,935/ and accused wanted to rely on the certificate of the said alleged retired Deputy Director of Agriculture. It is not that when the said person prepared that report, he was in service of the Government and he prepared it in the routine course of his office duty to raise presumption in favour of the correctness of that report as provided under Sec.114(g) of Evidence Act. Only during the argument accused submitted that since the said Delvi is suffering from illhealth he could not examine him. First of all to show that said alleged expert is suffering from illhealth no medical record was produced and added to that non examination of said person goes to the root of the matter. It is often said that an Indian farmer borns in debt and dies in debt. When majority of the farmers crave that cost of cultivation is continuously going up without corresponding raise in the rates of agricultural produce and demand for support price and also seek for waiver of farm loans, here is an agriculturist, who grows gold from the land. Court cannot remain aloof and Spl.C.525/2014 130 forget to take judicial note that because of the problems faced by the agriculturist in order to rush to their aid Governments are resorting to waiver of farm loans. When such is the case it is unthinkable that from 1995 to 2012 during the check period with 19 acres of land joint family of the accused could have reeped income from agriculture and horticulture to the tune of Rs.1,49,01,935/.
99. If really joint family of the accused was so affluent and well to do, it again surprises me, when accused submits that his wife borrowed from DW.1 and 2 for construction and she also mortgagedcumleased asset No.4 for its development. As noted earlier while seeking reimbursement of medical expenses of his parents accused submits in writing and encloses a declaration that his said parents are depending on him and he has paid their treatment expenses. These diametrically opposite things cannot be accepted on their face. As per his whims and fancies accused and his father Eraiah, who did not enter the witness box to come in support of his affidavit, make hallow claims with astronomical figures. Knowing fully well that I will be doing it at the cost of repetition, I reiterate that if at all this accused had received Rs.42,55,320/ as his share of income in the agriculture produce Spl.C.525/2014 131 of his family as submitted by him in his written arguments, he must necessarily show where he invested that money or how he spent it, if he did not purchase an immovable property during the check period or earlier to it. Here again at the cost of repetition I would say that as per statement 13B (page No.1084) and statement 14A (page No.1086) of Ex.P82(D) accused did not purchase any immovable property in his name during the check period or earlier to it. So invariably he has to open his mouth where that huge income he received from his joint family vanished. As per Sec.106 of Evidence Act when any fact is within the knowledge of any person, the burden of proving the same is upon him. That is why I said he is not consistent in his version so as to call upon the prosecution to negate it. When the prosecution discharged its initial burden by placing evidence, he could not discharge the onus shifted on him.
100. With all his intelligence accused obtained receipts from HOPCOMS periodically as if agriculture produce is sold to it and it made payment to him by way of cheques. If one looks at the said bills it is seen that they are not issued in the name of the accused alone. When it is stated that accused is still living in joint family, if some one or two bills are in his name or in the Spl.C.525/2014 132 name of his wife, it cannot be imagined that it is his share. The very conduct of the accused furnishing different set of copies of APR for the year 200001 and 200102 than what were produced and declared by him to his department and his written submission on income No.3 with reference to rental agreements that they were prepared in the names of DW.6, Lakshmipathireddy and Balakrishna for the purpose of obtaining additional power connection and not for any other purpose and further his declarations in the applications for reimbursement of medical expenses etc., unhesitatingly point out that he can go to any extent to set up a defence, may be at the cost of the misleading the Court also. Therefore I reject his version that declarations made by him in his APRs reflect his share of income in agriculture and horticulture and not of the family. In that case even if Rs.2,69,76/ bills generated post March 2012 till check period are added, his income from agriculture and horticulture would be Rs.13,38,956/, which is bit more than what is shown by the I.O.
101. Amongst the heads of income one more and last amount which is disputed by the accused is including of only Rs2,91,666/ by Investigation Officer towards rearing of sheep and income derived there from. Prosecution concedes that Spl.C.525/2014 133 accused and his family engaged in sheep rearing in their native village, but as per the APRs filed by the accused to his department (Ex.D3) and the copies of the APRs made available by the accused along with his schedule information reveal inconsistency in the income declared by him from the said source of income viz., the sheep rearing and more particularly though accused did not declare such kind of income in his APR for the year 200001 and 200102, in the copies furnished along with schedule information he tried to mislead the investigation by claiming Rs.1,50,000/ and Rs.1,75,000/ for the said 2 years. It is also alleged that accused never disclosed his so called income from sheep rearing to the Income tax department nor in the APRs for the year 200405 and 201112. Thus summing up the declaration of such income in his APRs for the year 199900, 200203, 200506, 200809 and 200910 and though no documents were received from the department of accused regarding his APRs for the year 2003 04, 200607, 200708, the income declared by the accused in his copies of APRs filed along with schedule information was taken by the I.O. and treating that total income as income of the joint family, 1/3 of that amount i.e., Rs.2,91,666/ is included as his share of income.
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102. This has been strongly objected by the accused on the reason that as per the APRs submitted by him to his department he declared Rs.13,50,000/ as income from the said head and when it is his individual income, as it was his APR, it was wrong on the part of the Investigation Officer to treat only 1/3 of the income as his income. Further relying on the report of Dr. Harsha, a Veterinary consultant of Shettihalli accused submits that his family received Rs.47,97,160/ from rearing of sheep and in that amount 1/3 share is to be taken as his income. In this regard he refers to the certificate issued by the said Veterinary doctor, produced at page 751 of statement prepared by the said alleged expert at page No.753 and 754 of Ex.P82(C) as well as crossexamination made by him and alleged admissions extracted at para 58 of evidence of PW.10. On hearing the rival submissions I have carefully examined the allegations and counter allegations of both side. On deep consideration of the documentary evidence made available by them, I feel that both are wrong in understanding their own documents.
103. As per ChapterIII of Income Tax Act income from sheep rearing, poultry farming, diary farming are all taxable and are not exempt from tax. Investigation Officer has furnished a Spl.C.525/2014 135 comparative chart of APR he obtained (Ex.D3) and copies of the APRs produced by the accused at page No.1057 to 1084 of Ex.P82(D) on page no.74 of Ex.D4 (Final Investigation Report). Though to some extent I.O. is right in showing how accused has played mischief by furnishing incorrect copies of APRs for the year 200001 and 200102 by claiming Rs.1,50,000/ and Rs.1,75,000/ as income from sheep rearing when no such amount was claimed in his APRs obtained from the department (Ex.D3) and also claimed excess income of Rs.25,000/ in the APR for the year 200506 and again for the year 200607 at Rs.1,75,000/ to Rs.2,25,000/ (page 1017) showing his inconsistent mind, the said Investigation Officer also omits declaration of Rs.75,000/ by the accused in his APR for the year 200809. Therefore I myself voluntarily checked the documents produced by them.
104. As pointed out by the Investigation Officer in his income tax returns for the year 200910 and 201112 (Ex.P64) accused has not declared any agricultural income. Only for the year 201011 he declared income from agriculture for rate purposes at Rs.1,94,680/. When such is the case, can it be accepted that as certified by Dr. Harsha Court can accept the income of the accused and his family at Rs.47,97,160/ during the check Spl.C.525/2014 136 period. From the certificate of the so called expert (page 751 of Ex.P82(C)), it is seen that he is a private practitioner and not a Government official discharging his function of evaluation of income from the said source in his routine office business. Admittedly he was not examined by the accused and no reason was set forth for his nonexamination. Apart from that to show a sample reason how he is not trustworthy and how he came up to the rescue of the accused I point out to unnumbered second para and para (a) of his certificate (page 751 of Ex.P 82(C)). There he certifies that he has calculated income from domestic animals based on the sale price of milk taken from the mother dairy etc., In the next page No.752 he shows the income of joint family of the accused from rearing of sheep, buffaloes and cows and "sale of milk" obtained from them at Rs.26,57,633/ and it is for the check period. But the very accused has produced affidavit of one Manjunath S/o Ramanna, who is also not examined by him, at page 678 to 680 of Ex.P82(C) and the milk dairy book at page No.681 to 750. As per the said Manjunath, who is running a Tea stall for the last 17 years, he is purchasing milk from joint family of the accused and has paid Rs.19,58,160/ over the said period. Knowing fully well the value of such affidavit as per Sec.3 of Evidence Act and by taking a liberal view, if contents of said Spl.C.525/2014 137 affidavit are read along with certificate of Dr. Harsha, it is apparent that milk income is duplicated. In addition to that if really Eraiah and his family had received so much of income from sheep rearing as stated by Dr. Harsha, there was no impediment for the accused to disclose the same in his income tax returns and also in APR. Let us take an example for the year 199899 Eraiah and his family received net income of Rs.79,200/ from sheep rearing and 1/3 of it comes to Rs.26,400/, but no declaration is made by the accused in his APR for the said year. Likewise for the year 199900 their family received net income of Rs.1,19,520/ but accused declared Rs.50,000/, which is one half of the income computed by Dr.Harsha. Similarly if their family received net sheep rearing income of Rs.2,95,200/ and Rs.3,95,520/ for the years 200203 and 200304 respectively as calculated by Dr. Harsha, there was no occasion for the accused to claim and declare Rs.2,00,000/ each in the said two years in his APRs. I can point out similar such glaring mistakes by comparing the copies of the APRs furnished by the very accused (page No.1057 to 1084 of Ex.P82(D)) with the statement prepared by Dr. Harsha. It only demonstrates that somehow to match his claim of income from the said sources at Rs.13,50,000/ during the check period accused got up the certificate and statement of Spl.C.525/2014 138 Dr. Harsha and did not dare to examine him to prove the said private document. When such is the case, if in para 58 of his crossexamination PW.10 goes on replying on the basis of the documents of the accused, that cannot be treated as an admission and Court can act upon it by forgetting the documentary evidence. Perhaps for the reason that income from the sheep rearing declared by him in his APRs intermittently was the joint family income, accused did not disclose the same in his I.T. returns. Therefore one cannot find any incorrectness in the act of I.O. treating the income declared by accused in his APR as income of his family. In that case even I find that I.O. is very liberal and he took income declared by the accused in his APRs of Ex.P82(D) though no corresponding declarations were found in APRs at Ex.D3. If Rs.75,000/ income left out for the year 200809 omitted by I.O. in the table furnished by him at page 74 is added, by including Rs.2,00,000/ each for the year 200304 and 200607 for which no APRs are available, the total amount would come to Rs.10,00,000/. In the said family income of Rs.10,00,000/ for the check period if 1/3 is calculated it will come to Rs.3,33,333/ and this income may be safely taken as income of the accused from sheep rearing notwithstanding the fact that he did not disclose it in his individual I.T. returns.
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105. In addition to disputing the some of the assets, expenditure and the incomes as set out by the Investigation Officer, in his written arguments accused has also set up four additional incomes and urges that the said incomes have been omitted by the said I.O. deliberately in order to implicate him in this case. I would deal with the said so called additional incomes one after the other.
106. Under this caption of additional incomes at Sl.No.1 accused submits that he received D.A. arrears, encashment of leave salary, extra salary and other amounts from his department and that too through his bank accounts, but the said incomes are not considered by the I.O. According to him the amount omitted by the I.O. is Rs.1,31,121/. In this regard he relies on bank account extracts which are part of file No.2 and marked as Ex.P75 and P18 respectively. As noticed earlier Ex.P75 is bank account extract of accused collected by the I.O. from State Bank of Mysore, whereas Ex.P18 is the account extract of accused maintained in Axis Bank. At the very inception I doubt regarding crediting of any amount to his Axis bank account as admittedly it is not his defence that his said account was also tagged to his department as a salary Spl.C.525/2014 140 account. Normally one bank account of a Government employee will be tagged with his salary account and whatever receipts he receives from the department, whether it is a salary or allowances, will be credited to such account. One more point is that while furnishing the said total sum of Rs.1,31,121/, accused has not given its split up sums and dates on which the said sums were credited to his account, if not to both accounts. Even he has not taken pain to show how much sum he received under what heads viz., arrears of D.A.; encashment of leave salary; extra salary etc. Despite all these shortcomings as pointed out in the oral arguments by the accused I have gone through the page No.195 and 196 of Ex.P75 and on the basis of the statement of the accused and also for the failure of the Investigation Officer to attend the so called claim of the accused I would hold that when said receipts were made through his salary account, there cannot be any prejudice to the prosecution if the said amount is included as additional income of the accused to the extent he has claimed. Hence, the said amount of Rs.1,31,121/ is treated as his additional income from salary.
107. Then again reiterating receipt of Rs.15 lakhs by his wife from DW.6 towards the alleged leasecummortgage deed Spl.C.525/2014 141 accused contends that the said receipt of Rs.15 lakhs is not included by the I.O. in his income. Thus he seeks to add the said Rs.15 lakhs as his second additional income. I think on his said claim of Rs.15 lakhs, already I have made enough discussion when I took up asset No.5 and income No.3 and demonstrated how the said illusionary income cannot be considered on factual as well as on legal matrix, therefore without reproducing the discussion made already which has consumed enough ink, I would summarily reject his claim that said Rs.15,00,000/ is also liable to be added in his income.
108. His next and third additional income is letting out of basement/cellar constructed in asset No.4 to DW.2 under rental agreement dated 232009. Accused submits that the said cellar/basement portion was was let out to DW.2 on rent of Rs.1,500/ per month for a period of 11 months and after completion of initial period of 11 months the said agreement was further extended by making endorsements on it and by enhancing the rent at Rs.15,000/ per month. In order to prove his said contention accused relies on the evidence of DW.2 and alleged copy of rent agreement dated 232009 produced at page No.147 and 148 of Ex.P82. Further to corroborate his said claim he relies on the income tax returns of his wife Spl.C.525/2014 142 produced at Ex.D2 and his APR produced at Ex.D3. Even in respect of this claim is concerned I have deeply gone through the same.
109. It is true that the accused has produced the alleged rental agreement at page No.147 and 148 of Ex.P82, but on reading that agreement visavis the evidence of DW.2 it is a bit difficult to accept that one can straight away receive that claim on the face of it. Here the basic question that would arise for consideration is, accused has not produced any document to show that as on 232009 already he had put up cellar/basement in the said property. There is no piece of document to show that after gift of the said property and asset No.1 to his wife by his said father on 1832008, he had put up construction of basement in that property by 232009. Reason is obvious as there was only less than one year gap between the said rental agreement and the gift deed. When it is said that said property is very much part of Bangalore City Corporation, before making any construction in any such property one has to obtain building license by submitting the building plan as per the provisions of KMC Act. Here neither such building plan is produced by him nor the license to show that subsequent to the gift to his wife construction was made in Spl.C.525/2014 143 that property to enable her to let out the basement to DW.2. At any rate in the I.T. returns the said Gangamma declared the said rental income as evidenced by page No.257, 236 and 215 of Ex.D2 viz., income tax returns of her for the years 201011, 201112 and 201213, taking a liberal view I concede that through his wife accused received Rs.1,50,000/ for the period 200910, Rs.1,80,000/ for the period 201011 and Rs.45,000/ for the period 201112 i.e., till the date of raid. I do so for one more reason as I.O. has not given any explanation why he excluded the said rental agreement, though copy of it was furnished to him along with schedule information by the accused. In that case accused is entitled for inclusion of additional income of Rs.3,60,000/.
110. Fourth additional income which accused submits that I.O. has left out the same is the alleged agriculture and centering business income of Smt. Gangamma. As submitted by the accused in Ex.P82(D) on page No.831 to 834, before his entry in to service his wife was actively engaged in profitable business of letting/hiring of the centering materials used for construction activities and she had bank balance of Rs.48,000/ in her S.B. A/c in Vijaya Bank, Tumkur and regarding which he has enclosed copy of that pass book at page No.835. He Spl.C.525/2014 144 contended that with that initial investment she started her business by purchasing the scaffoldings and centering materials, whereas wooden supporters were procured by felling casurina and neem trees from their farm land and she also purchased metal sheets from Padavi Engineers and for that he has enclosed copy of the invoice of the said firm at page No.837. Then further contending that by hiring the premises of DW.1 she started her business and for that he has enclosed her rental agreement entered with the said person at page No.838 to 841 and after one year she sublet the premises of DW.1 and also her centering and construction materials to DW.7 as such she was getting her income continuously and she filed her I.T. returns from the year 200708 onwards by obtaining PAN number in her name, but I.O. has collected the I.T. returns only for the year 201011 onwards and since she was getting her income in her individual capacity, there was no need for him to declare in his APRs as per the amendment made to the conduct rules (KCSR) of 1966 through notification No.DPAR 6 SRC 2004 dated 16112006. He further contended that his wife had filed suit for partition along with others at OS No.342/2007 against her siblings and the said suit ended in compromise in February 2013 and under the said partition she got lands in Sy.No.107/9A and 107/9B in all measuring 3 acres situating at Spl.C.525/2014 145 Naruganahalli of Golur Hobli, Tumkur and right from the beginning, though the suit was pending, she was in exclusive possession of the said lands and was getting income from them. In this regard he refers to the RTCs of the said lands produced at page No.760 to 791 of Ex.P82(C) and sale of agriculture and horticulture produce by her to the horticulture department at Lalbagh by referring to the receipts issued by the said Society produced at Ex.D17 and also computation of her probable income from the said sources by Delvi. Thus he submitted that total income of his wife for the check period from her independent sources would come to Rs.13,28,085/ and Rs.2,22,395/. It is his contention that adding of the said incomes of his wife would definitely prove that there is no substance in the allegation of the prosecution of amassing of properties or pecuniary resources disproportionate to his known sources of income.
111. On going through his said contention one can see two components of alleged income of Smt. Gangamma. Firstly her alleged income from agriculture and horticulture and secondly from hiring of centering and construction materials. I would deal with both these aspects one after the another. It is true that accused has produced photo copies of the RTCs of the Spl.C.525/2014 146 land in Sy.No.107/9A (2 acre 10 guntas) and 107/9B (30 guntas) of Narugunahalli at page No.760 to 791 of Ex.P82(C). The said RTCs indisputably show the name of mother of said Gangamma. In the said RTCs nowhere there is an indication that wife of the accused had exclusive possession over the said lands and she was cultivating them so as to get either agriculture or horticulture income from them exclusively. Instead in the Ex.P17 (his statement dated 2762012) on page No.121 accused himself submitted in writing that the income received from 3 acre land left by his motherinlaw is equally distributed amongst her sons and daughters five in number. Apart from that the compromise entered in OS 342/2007 produced at page No.982 to 987 of Ex.P82(D), the original of it is also available in Ex.D17, reveals that the said suit was filed in the year 2007 and not prior to accused joining his service in Karnataka State Police department and it ended in compromise in "February 2013" i.e., after the raid. The terms of the compromise would manifestly show that it was so entered into in order to come out of the clutches of Lokayuktha police as accused was already proceeded against. In other words the said compromise is subsequent to the registration of this case, therefore at the very inception I would like to reject that document from consideration. Even otherwise the terms of Spl.C.525/2014 147 settlement at Sl.No.3 and Sl.No.6 of the compromise decree would show that it was a lopsided settlement in order to overcome the grueling problem the accused was then facing. In that case Gangamma was the plaintiff No.2 and her brothers and sisters and their heirs were the coplaintiffs and defendants. Since I am concerned with the plaintiff No.2 alone, role of other parties matters little. With this input if one reads condition No.3 of the compromise, all the defendants and plaintiffs 1 and 3 admitted that plaintiff No.2 is "in possession"
and enjoyment of the said two lands from "25 years". Then condition No.6 enumerates that the said two agriculture lands viz., Sy.No.107/9A and 107/9B measuring 3 acres in all, were allotted to the share of the plaintiff No.2 and she can get change the revenue documents in her name. The said two lands formed part of schedule No.1 and in schedule No.2 by showing the existence of gold and silver ornaments worth Rs.6 lakhs, the said amount was left to the share of the other plaintiffs and defendants by giving Rs.1,50,000/ each. Therefore it manifestly show that taking advantage of more than 2 years of time provided to him to submit his schedule information accused got up the compromise decree on 272 2013 and that decree was signed on 1532013 by the concerned Court. When such is the case, it would be too much on the part Spl.C.525/2014 148 of this Court to rely on such document and the alleged receipts of horticulture society of Lalbagh produced at Ex.D17.
112. While discussing on the agriculture income of the joint family of the accused I have already referred to the value of certificate issued by Delvi. The said person has also issued such certificate regarding agriculture income of Gangamma from the said two lands for the period 200001 to 201112 and according to him she derived net income of Rs.6,17,085/ from Sy.No.107/9A by growing horticulture and agriculture income and Rs.11,62,977/ from Sy.No.107/9B by growing banana during the said relevant years. According to him both lands are having source of water through bore well and in the said lands coconut, paddy and banana crops were grown. Quite contrast to said untestified certificate latest computer pahanis of the said lands available at page No.776 and 789 of Ex.P82(C) would show that the said lands are dry (khushki) lands having no source of water as per column No.12(8) and column No.8 with reference to source of water is left blank. Therefore when the said Delvi did not step into the witness box on the alleged pretext that he is suffering from memory loss, his private document (certificate) cannot be considered by ignoring the public documents (RTCs). Added to that when the accused Spl.C.525/2014 149 submits through his written version dated 2762012, the very next day of the raid that income received from lands of his in laws was shared amongst all their daughters and son (Ex.P17, page No.121, file no.1), the certification and computation of income by Delvi from the year 200001, exclusively in the name of Gangamma alone, speaks how accused manipulated the things and tried to mislead the court. Therefore without any hesitation and without giving any credence to the receipts intelligently obtained by the accused by using his colour of his office from horticulture department of Lalbagh, I reject his contention that his wife had agriculture and horticulture income from 200001 as contended by him.
113. Now I turn to his next contention that she was getting her income from hiring construction and centering materials. In this connection having carefully gone through the documents produced by the accused, without any hesitation I would say that even said contention is unsustainable as there are no credible document to believe the same. Let us start with photo copy of the Vijaya Bank pass book in respect of S.B. a/c No.10260 of said Gangamma. It is at page No.835 and 836 of Ex.P82(D) with initial credit balance of Rs.38,000/ and further credit of Rs.10,000/. From the said copy of the pass book it is Spl.C.525/2014 150 not possible to know to which year the said credit entries belong to. Except the said two credit entries no other credit entry is found in that account other than the continuous debiting/withdrawing of sums with the balance of Rs.200/ at the end of July 31st. The said Rs.48,000/ was withdrawn by the account holder as "self" in sums of Rs.8,000/, Rs.10,000/, Rs.20,000/, Rs.5,000/, Rs.4,000/, Rs.500/ and Rs.300/. Now the question would be whether with such few entries in the bank account one can imagine engaging of a person in hiring of or letting out of the construction and centering materials and receiving rental income. Accused has only produced photo copy of the invoice of Padavi Engineers dated 2571993 to evidence the purchase of 350 centering sheets. The said copy of invoice is at page No.837 of Ex.P82(D) and it reveals that it is in the name of Gangamma, but accused has not cared to produce its original. No matter the original is unavailable, the purchase of said sheets do not ipso facto indicate that she was engaged in that business. In order to do any business, trade or profession, one has to obtain trade license, but no such trade licence of Gangamma is produced by the accused. Only the documents which he relies are the agreements entered with DW.1 and DW.7, who allegedly let out his premises to her to do the said business and subletting Spl.C.525/2014 151 of the said premises along with centering materials respectively. The said agreements are at page No.838 to 841 of Ex.P82(D). The bare reading of the agreement with DW.1 and the evidence of that witness show that it was entered into on 661993 to take his industrial shed No.461 on rent of Rs.6,000/ per month with no clause in it prohibiting the tenant (Gangamma) to sublet it, which is commonly and generally found in all the rental agreements. The reason is obvious as she sublet it to DW.7 in a span of one year i.e., on 461994. First of all there is no document to believe that DW.1 held industrial shed bearing No.461 measuring 30 x 30 feet at Kamakshipalya, Bengaluru in his name so as to let it out to Smt. Gangamma. Secondly in his chief he did not whisper that she sublet the same to DW.7 and he consented for the same. Thirdly in his crossexam at para 5 he replied that she herself was running business in that premises, which is against the rental agreement dated 461994. Fourthly DW.7, who stepped into the witness box to speak on the said rental agreement dated 461994, did not corroborate his oral version with any credible document to prove payment of rent by him except the said deed. Now the question would be whether in the absence of examination of Smt. Gangamma Court can believe such versions on the basis of evidence of the accused and said Spl.C.525/2014 152 witnesses. It is significant to note that in his affidavit at page No.1042 of Ex.P82(D) (original is available in Ex.D16) Eraiah stated that himself and his wife are suffering from cancer and his eldest son (accused) is working in the Police department as such all of them are unable to look after the day to day affairs of the family, therefore his senior daughterinlaw (Gangamma) is entrusted with all the family affairs of the joint family as she is literate and intelligent. When such is the case no man of ordinary prudent will concede to the submission of the accused that because of a chain snatching incident, that too which was occurred on 1512018, she would be suffering from traumatic phobia and is not coming out of the house (para 25 of chief of DW.9) even after twelve months of that incident as he was further examined on 3122018. When it is said that Gangamma was/is an entrepreneur, educated and intelligent, for the incident which took place in the month of January 2018 she could keep herself away from the witness box even when accused examined his last witness (DW.12) in the month of December, 2018. What I mean to say is that even if she had such symptoms of traumatic phobia in the month of January, being the wife of a Police Inspector it would be difficult to accept that she would carry it through out her rest of the life. In other words it is only a ruse to avoid the truth being Spl.C.525/2014 153 unfolded through her, accused did not bring her to the witness box. In the absence of the person, who could speak on those documents, Court cannot accept the evidence of others.
114. In so far as filing of income tax returns by her from the year 200708 and onwards and her statement of accounts prepared and maintained by Basavaraj and Dilip, Chartered Accountants, produced at page No.845 to 881 of Ex.P82(D) I seriously doubt their genuinety. As endorsed by the said Chartered Accountants they prepared her statements of affairs/income for the years 199192 to 200405 on "2572005"
wholesomely and further interestingly they prepared them on the basis of the "bank statement and information furnished" to them. It is not that they prepared the said statements of affairs/income and expenditure based on the books of accounts maintained by her from her different sources of income. When the evidence of accused is totally silent about her tailoring job income, at page No.845 of Ex.P82(D) the said Chartered Accountants under the caption "capital and liabilities" added Rs.20,436/ as her net income from tailoring job for the year ending 31st March 1992. The said income from tailoring job was enhanced to Rs.26,489/ for the year ending 31st March 1993. I wonder whether such ante dated accounts Spl.C.525/2014 154 can be prepared on the basis of the bank statement and information (oral) of a party by Chartered Accountants. Coming to the I.T. returns filed by Smt. Gangamma during the argument accused canvassed that as held in the decision reported at 1992(4) SCC in the case of "M. Krishnareddy vs. State, DYSP, Hyderabad", Court has to receive the income tax and wealth tax returns submitted prior to the search of his house and they are reliable. It was his submission that income tax returns filed by his wife would disclose her independent incomes and they have to be added as his income. Per contra, relying on the subsequent decision of the Hon'ble Supreme Court reported at 2017(3) SCC (Crl.) in the case of "State of Karnataka vs. Jayalalitha and others" prosecution canvassed that declarations made in income tax returns or wealth tax returns have no credible value, even if they are prior to before the date of search, unless their intrinsic genuinety is proved to their hilt. In view of the said rival submissions I have gone through the decisions relied by them. It is true that in M. Krishnareddy's case Hon'ble Court came to the conclusion that claim set up by the accused in that case was sufficiently substantiated by income tax and wealth tax returns submitted prior to the date of search and are reliable. But in the instant case the discussion made by me show that the claim of the Spl.C.525/2014 155 accused is a hallow one and I.T. returns of his wife are not supported by corresponding income generating documents. Therefore they cannot be accepted on their face. In this case when prosecution has placed good number of documents showing the properties and pecuniary resources the accused possessed at the relevant time to substantiate the charge leveled by it, onus shifts to the accused to show how he or his family members acquired them and what were the sources for such acquisition. To learn more about how evidence is to be appreciated in cases of this kind, which are alarming our Nation, one has to read the recent decision of Hon'ble Supreme Court in Jayalalitha's case. There Hon'ble Court was pleased to make the following observations:
A. Public Accountability, Vigilance and Prevention of Corruption - Prevention of Corruption Act, 1988 - S. 13(1)(e) r/w S.13(2) - disproportionate assets case - Quantification of assets, expenditure and income during the check period - Evidentiary value of income tax returns/orders - Estoppel, if any, if prosecution fails to object thereto, or that State had accepted income concerned as lawful vide income tax orders - Preference to be given to direct evidence of the transaction(s) in question, whether they relate to alleged illegal acquisition/possession of assets concerned/expenditure incurred or to purportedly lawful sources of income, instead of income tax orders/returns relating thereto - This approach of the trial court emphatically affirmed and applied by Supreme Court itself - Approach of High Court in principally relying on income tax orders/returns comprehensively rejected - (Ed: This approach is evident in the manner of adjudication adopted by Supreme Court right through shortnotes X to Y and YA to Z, below) Held, income tax orders and returns, no doubt are admissible but these Spl.C.525/2014 156 are not conclusive proof as to whether assets or income concerned are from lawful source(s) as contemplated under S.13(1)(e) Expln., PC Act - Furthermore, omission on part of prosecution to question admissibility of income tax orders/returns would not endow contents thereof with probative efficacy.
Income tax assessment proceedings are directed only to quantify taxable income and orders passed therein do no authenticate source as lawful and thus are not relevant for proving a charge under S.13(1)(e), PC Act - Property in name of assessee cannot be a ground to believe that it actually belongs to assessee - Otherwise corrupt public servants would amass wealth in names of known persons and pay income tax and then escape from law.
Even otherwise, findings in one set of proceedings cannot be held to be binding on another set of proceedings and both have to be decided on basis of evidence adduced therein.
Property in the name of the income tax assessee itself cannot be a ground to hold that it actually belongs to such an assessee and if this proposition is accepted, it would lead to disastrous consequences. In such an eventuality it will give opportunities to the corrupt public servant to amass property in the name of known person, pay income tax on their behalf and then be out from the mischief of law.
Submission of income tax returns and the assessments orders passed thereon, would not constitute a foolproof defence against a charge of acquisition of assets disproportionate to the known lawful sources of income as contemplated under the PC Act and further scrutiny/analysis thereof is imperative to determine as to whether the offence as contemplated by the PC Act is made out or not.
In order to invoke the rule of issue estoppel not only the parties in the two proceedings must be the same but also the factinissue proved or not in the earlier proceeding must be identical with what is sought to be reagitated in the subsequent one.
Thus through the said judgment Hon'ble Supreme Court has Spl.C.525/2014 157 set at rest the contentions of persons charged with offences punishable under Sec.13(1) of P.C. Act that I.T. returns and wealth tax returns of their kith and kin prove their independent income and they have to be considered as reliable and admissible documents, even in the absence of any documentary evidence to prove the existence of such sources of income.
115. In view of the discussion made by me in the foregoing paragraphs and also the ratio laid down in Jayalalitha's case, I straight away reject the alleged income tax returns and declarations of income made by Gangamma in them. It is/was one way of the accused to legalize his illgotten income, that is why he took all care to shield his wife from entering the witness box.
116. Lot of submission was made by the accused referring to Rule 23 of Karnataka Civil Services (Conduct) Rules 1966 and amendment made to it in 2006. It is true that to Rule 23(2) and (3) by adding two separate provisos, it is clarified that obligation of a Government servant to report regarding acquisition of movable and immovable properties to his department would not be applicable if his family member Spl.C.525/2014 158 acquires any such property "out of his or her own funds". Earlier to the year 2006 no such provisos were there, therefore a Government servant was expected to disclose acquisitions made by his family members also, irrespective of the fact that if they were acquired out of their own funds. The reason behind canvasing the said amendment of conduct rules by accused is to show that since his wife was getting her independent income he did not disclose it in his APRs. But discussion made by me amply show that she had no such income and all her incomes, set up by the accused, are fictitious. At one breath accused submits that she was getting her independent income from agriculture, horticulture, hiring of construction and building materials etc., and in the very next breath he submits that she had borrowed interest free loans from DW.1 and 2, which the said witnesses did not whisper it in their chiefs. He further submits that she purchased construction items on credit basis and the said payments were made postsearch and that she leasedcummortgaged the asset no.4 for Rs.15 lakhs and entrusted to DW.7 for its development. These inconsistent versions that their family is well to do family having innumerable sources of income and at the same time stretching their hands for interest free loans would never go together. Hence, I totally reject his claim that she derived income of Spl.C.525/2014 159 Rs.13,28,085/ and Rs.2,22,395/ from agriculture and hiring of centering materials till the date of raid.
117. During his argument Sri P.N.H., Advocate contended that accused can only probablise his defence and there is no need that he has to prove his defence beyond all reasonable doubt. It was his contention that when accused furnished so many documents through schedule information as called upon by the Investigation Officer, which is not a requirement of law, it was for the Investigation Officers to verify the correctness of those documents and record a finding on them. He also canvassed that intentionally prosecution did not examine CW.14, 15, 13, 82 and 81, but they were examined by accused as DW.1 to DW.5 in order to bring the truth on record. Thus he submitted that prosecution was not fair enough in bringing the true materials on record. He further canvassed that it is primary responsibility of the prosecution to show that during the check period accused was found in possession of pecuniary resources or properties disproportionate to his known sources of income and unless it discharges its said initial responsibility, accused is not expected in law to offer any explanation for his such possession. In support of the said submission he referred to the decision reported at AIR 2017 SC 3713 in case of Spl.C.525/2014 160 Vasantha Rao Guhe vs. State of M.P. Then referring to another decision reported at 2011(4) SCC 402 in case of Ashok Tej Singh Butia vs. State of Sikkim Sri P.N.H., Advocate contended that even where accused furnishes his statement containing the number of properties himself and his family possesses and the mode of acquisition, that has to be probed by the Investigation Officer with all his acumen. Thus he contended that since the prosecution has not come up with all the requirements as enshrined in those decisions, it cannot be said that charge of amassing of assets or pecuniary resources by the accused disproportionate to his known sources of income is proved by it.
118. On going through the decisions relied by the learned Advocate I would say that the ratios laid down in those decisions will not come to the aid of the accused. Thorough analysis made by me with reference to the documents produced by the prosecution and the accused definitely indicate that prosecution has discharged its initial burden with all its evidence at its reach. When the documents produced by the accused themselves are unreliable and when some of them are post raid, there was no obligation on the part of I.O. to verify them again. In a given situation it would be incorrect on Spl.C.525/2014 161 his part to claim that he can only probablise his defence and there is no obligation on his part to prove his said defence in its true sense. Nodoubt he can probablise his defence unlike the prosecution which has to prove its charge beyond all reasonable doubt, but in a case where the evidence produced by the accused and defence set up by him suffer from inherent improbabilities, it falls much short of the requirement of probabilising his defence. It is not that by placing only assets and expenditure prosecution has left things in the midst calling upon the accused to offer his explanation as in the case of Vasantha Rao Guhe. In Ashok Tej Singh Butia's case since the trial Court did not consider the Ex.D4, a consolidated statement of immovable properties furnished by the accused, in the context of that case and explanation offered for their acquisitions, Hon'ble Supreme Court made such observation. Therefore the observation made in the facts and circumstances of those cases cannot be made applicable to the case in hand. Hence, rejecting the submission of the learned counsel for the accused I hold that as for as charge of acquiring the assets and pecuniary resources disproportionate to his known sources of income is concerned, prosecution is able to prove the same to a substantial extent. Before I wind up my discussion on this aspect I would like to furnish the chart for the sake of Spl.C.525/2014 162 convenience and to demonstrate the distinction between findings of the I.O. and findings of the Court on the assets, expenditure and income of the accused and his family.
TABLE OF ASSETS
Disputed (D)
Sl. Finding of
Asset Amount Not Disputed Remark
No. the Court
(ND)
1. Site No.659, HMT 13,98,500.00 D 13,98,500.00 Asset of
Layout accused
2. Construction cost in 57,50,903.00 D 46,00,723.00 Reduced by
site no.659 the court
3. Electrification and 1,69,882.00 ND 1,69,882.00
power connection costs
4. Site no. 54/9/137/2 2,00,000.00 D 2,00,000.00 Asset of
accused
5. Construction cost in 36,86,143.00 D 36,86,143.00 Asset of
site 54/9/137/2 accused
6. Lands of Eraiah ND
7. Costs construction and ND
renovation of houses by
Eraiah
8. Balance in Canara 4,92,948.00 ND 4,92,948.00
Bank SB A/c of
Ganganagar
9. Canara Bank SB A/c 1,29,889.00 ND 1,29,889.00
balance of accused
10. SBM SB A/c balance of 22,983.00 ND 22,983.00
accused
11. Axis Bank SB A/c 49,169.67 ND 49,169.67
balance of accused
Spl.C.525/2014
163
12. SBI SB A/c balance of 4,167.23 ND 4,167.23
accused
13. Hero Honda of accused 95,287.00 ND 95,287.00
14. Maruthi Swift Desire ND
15. Hard Cash found in the 1,35,800.00 ND 1,35,800.00
house of accused during
search
16. Value of Gold 9,12,750.00 D 9,12,750.00 Accused's
ornaments found at the version is
time of search rejected
17. Value of Silver articles 1,19,050.00 D 1,19,050.00 Accused's
found at the time of version is
search rejected
18. Value of Household 5,94,645.00 D 4,45,181.00 Concession
articles found at the given by
time of search court
19. BESCOM deposit by 5,220.00 ND 5,220.00
Gangamma for house in
659
20. BESCOM deposit by 26,680.00 ND 26,680.00
Gangamma for building
in 54/9/137/2
21. Power connection cost 3,637.00 ND 3,637.00
for property 54/9/137/2
22. Telephone deposit of 1,250.00 ND 1,250.00
Gangamma
23. Membership fee paid to 5,000.00 ND 5,000.00
Shakti Hills and
Resorts
24. Membership fee paid to 14,600.00 ND 14,600.00
Estate Club
25. LPG Gas connection 1,900.00 ND 1,900.00
deposit
Spl.C.525/2014
164
26. Chit fund contribution 1,74,040.00 ND 1,74,040.00
by Smt. Gangamma
TOTAL 1,39,94,443.90 1,26,94,799.90
TABLE OF EXPENDITURE
Disputed (D)
Sl. Finding of
Expenditure Amount Not Disputed Remark
No. the Court
(ND)
1. Registration and stamp 1,31,755.00 D 1,31,755.00 Accused's
duty paid for site 659 version is
rejected
2. Registration and stamp 2,140.00 ND 2,140.00
duty paid for gift deed
of site 54/9/137/2 and
659
3. Tax paid to site 659 4,085.00 ND 4,085.00
4. Licence fee paid for 13,700.00 ND 13,700.00
plan sanction in site
no.659
5. Tax paid to BDA site 8,591.00 D 8,591.00 Accused's
no.659 version is
rejected
6. Stamp duty and 20,360.00 D 20,360.00 Accused's
registration fee paid for version is
purchase of site rejected
no.54/9/137/2
7. Tax paid to BBMP for 6,156.00 ND 6,156.00
site no.54/9/137/2
8. Water tap charges paid 12,336.00 ND 12,336.00
to house no.94
9. Water charges paid by 3,300.00 ND 3,300.00
Spl.C.525/2014
165
accused at different
places of his service
10. Power charges paid by 55,740.00 ND 55,740.00
accused to his rented
house at Bengaluru
11. Temporary power 1,260.00 ND 1,260.00
connection fee paid for
site 659
12. Electricity charges paid 78,500.00 ND 78,500.00
by accused at different
places of his service
13. Fuel expenses of Hero 49,461.00 ND 49,461.00
Honda of accused
14. Insurance premium 1,682.00 ND 1,682.00
paid on Hero Honda
Karizma
15. Mobile currency 2,535.50 ND 2,535.50
charges paid by
Gangamma
16. Mobile currency 47.40 ND 47.40
charges of Chetan
Kumar
17. Telephone charges of 7,334.00 ND 7,334.00
Gangamma
18. Loan repayment by 2,66,330.00 ND 2,66,330.00
Gangamma to Canara
Bank
19. Chit contribution by 19,49,240.00 ND 19,49,240.00
Gangamma
20. Service charge of 668.00 ND 668.00
Canara Bank to
Gangamma
21. Service charge of 83.00 ND 83.00
Canara Bank of
accused
Spl.C.525/2014
166
22. Service charge of SBM 50.00 ND 50.00
of accused
23. Service charges of Axis 167.33 ND 167.33
Bank of accused
24. LIC policy premium of ND
accused
25. Income tax paid by 26,130.00 ND 26,130.00
accused
26. Income tax paid by 9,420.00 ND 9,420.00
Gangamma
27. Invisible/Non verifiable 8,79,393.00 D 7,91,454.00 Reduced by
expenditure of accused the court
during check period
28. Education expenditure 5,50,985.00 ND 5,50,985.00
of Praveen Kumar
29. Education expenditure 1,94,275.00 ND 1,94,275.00
of Chetan Kumar
30. Tution fee paid for PUC 91,628.00 ND 91,628.00
education of Praveen
Kumar and Chetan
Kumar
31. Rent paid by accused at 4,14,960.00 ND 4,14,960.00
various places of service
32. Security deposit paid to 1,50,000.00 ND 1,50,000.00
rental house of
Bengaluru
33. Rent paid by accused to 5,20,830.90 ND 5,20,830.90
Bengalure home
34. Treatment expenses of 2,69,486.55 ND 2,69,486.55
parents
35. Treatment expenses of 41,954.78 ND 41,954.78
Praveen Kumar
36. Treatment expenses of 5,839.70 ND 5,839.70
Chetan Kumar
Spl.C.525/2014
167
37. Treatment expenses of 1,305.00 ND 1,305.00
Gangamma
38. Treatment expenses of 150.00 ND 150.00
Gangamma
39. Treatment expenses of 600.00 ND 600.00
Gangamma
40. Premium paid to 14,185.00 ND 14,185.00
insuring of house
no.659
41. Treatment expenses of 8,115.00 ND 8,115.00
Kenchegowda
42. Mess charges paid by 30,989.00 ND 30,989.00
Royal Archid
TOTAL 58,25,768.16 57,37,829.16
TABLE OF INCOME
Disputed (D)
Sl. Finding of
Income Amount Not Disputed Remark
No. the Court
(ND)
1. Net salary of accused 16,56,157.00 ND 16,56,157.00
during check period
2. Award amount received 12,444.00 ND 12,444.00
by accused
3. Rental income of 7,50,000.00 D 7,50,000.00 Accused's
property 54/9/137/2 Version
rejected
4. Share of agricultural 10,69,680.00 D 13,38,956.00 Enhanced
income of accused by court
Spl.C.525/2014
168
5. Share of accused in 2,91,666.00 D 3,33,333.00 Partly
sheep rearing and sale accepted
6. Loan borrowed by 16,86,000.00 ND 16,86,000.00
Gangamma from
Canara Bank
7. Hand loans borrowed 16,23,210.00 ND 16,23,210.00
by Gangamma from
Venkatesh and
Ramkrishna
8. Interest income from 71,111.00 ND 71,111.00
Canara Bank by
Gangamma
9. Interest income from 2,830.00 ND 2,830.00
Canara Bank by
accused
10. Interest income of 7,088.00 ND 7,088.00
accused from SBM
11. Interest income of 34,717.00 ND 34,717.00
accused from Axis Bank
12. Interest income of 1,980.23 ND 1,980.23
accused from SBI
13. Income from chit fund 19,90,000.00 ND 19,90,000.00
to Gangamma
14. Maturity value of LIC 74,999.00 ND 74,999.00
policy
15. Reimbursement of 1,10,277.00 ND 1,10,277.00
parents medical
expenses
TOTAL A 93,82,159.23 96,93,102.23
Spl.C.525/2014
169
ADDITIONAL INCOMES CLAIMED BY ACCUSED
1. Arrears of DA, 1,31,121.00 1,31,121.00 Accepted by
encashment of leave the court
salary and extra salary
2. Lease cum mortagage 15,00,000.00 Rejected by
amount received by the court
Gangamma
3. Rental income from 3,60,000.00 3,60,000.00 Accepted by
cellar portion of the court
54/9/137/2
4. Agricultural and 15,50,480.00 Rejected by
centering income of the court
Gangamma
TOTAL B 35,41,601.00 4,91,121.00
TOTAL (A+B) 1,01,84,223.23
SUMMARY STATEMENT OF ASSETS, EXPENDITURE AND INCOME Sl. As per I.O. As per findings Particulars No. of court
1. Total value of assets acquired 1,39,94,443.90 1,26,94,799.90 by accused during check period
2. Total expenditure incurred by 58,25,768.16 57,37,829.16 accused during check period
3. Gross total (Sl. No.1 and 2) 1,98,20,212.06 1,84,32,629.06
4. Total income of accused during 93,82,155.23 1,01,84,223.23 check period
5. Difference between 1,04,38,056.83 82,48,405.83 Sl. No.3 and 4
6. Excess Income x 100 111.25% 80.99% Total Income Spl.C.525/2014 170 The said tabulations reveal findings of this Court on evaluation of the evidence. The comparative summary chart prepared by me shows the distinction manifestly. Since the said summary chart is selfexplanatory, without narrating anything more, I conclude that prosecution has proves beyond all reasonable doubt that accused possessed properties and pecuniary resources disproportionate to his known sources of income in his name and in the names of his family members and he could not satisfactorily account for such excess possessing of properties and sources, but not to the extent it alleged, hence I answer this point partly in the affirmative.
119. POINT NO.2: It is further allegation of the prosecution that though accused was legally bound to furnish correct information to the Investigation officer knowingly furnished false information through his schedule information by enclosing the copies of the APRs for the year 200001 and 2001 02 declaring his agricultural income at Rs.2,00,000/ each, when his APRs for the said years submitted to his department disclose such income at Rs.50,000/ each, with all his consciousness that his said documents would be used as evidence in the judicial proceedings. Thus it has charged him for the offences punishable under Sec.177, 193 and 465 of IPC.
Spl.C.525/2014 171 Since in this point I am only seized with the offence punishable under Sec.177 of IPC alone, I would focus my discussion in relation to that offence only.
120. In order to understand the same one has to go through that section and know the requirements thereof. As per the said penal section, whoever being legally bound to furnish information to any public servant, furnishes an information, which he knows or believe it to be false, would be committing the said offence. In the instant case one cannot doubt that PW.9 and 10 were collecting documents from accused and other departments in discharge of their official duty and they are public servants. In contrast to the APRs received from his department (submitted by the very accused) viz., Ex.D3, for the year ending 3132001 and 3132002 (page No.108 & 106 of Ex.D3, file No.1) accused declared his agricultural income at Rs.50,000/ each. Such being the case when he submitted Ex.P 82(D) with copies of the APRs to the I.O., for the very same period he declared his income at Rs.2,00,000/ each as evidenced by page No.1081 and 1079 (file No.7 vol. No.5). He did it even in respect of sheep rearing income. For the said years though he did not declare any income from the said source, he falsely declared Rs.1,50,000/ and Rs.1,75,000/ in Spl.C.525/2014 172 the copies of APRs and claimed excess income of Rs.25,000/ than what was declared earlier to this department for the year 20052006. When such specific charge was leveled against him he ought to have conceded it fairly when he stepped into the witness box as DW.9. There is no word of remorse through out in his chief on the said allegation. When the documents speak themselves, there is no reason to reject the contention of the prosecution that, he being legally bound to furnish true information, furnished false information and thereby committed offence as contained in Sec.177 of IPC, accordingly I answer this point in the affirmative.
121. POINT NO.3 : Prosecution further submits that by tendering such false APRs accused committed offence under Sec.193 of IPC and seeks to proceed against him for that offence also. As I have already recorded an affirmative finding on point No.2 now the question would be whether accused can be charged and found guilty in respect of offence under Sec.193 of IPC, which deals with giving of false evidence in a judicial proceedings. Instead of making inroad analysis on this I would straight away refer to Sec.195(1)(b)(i) of Cr.P.C., which mandates that no Court shall take cognizance of any offence punishable under Secs.193 to 196, 199, 200, 205 to 211 and 228 Spl.C.525/2014 173 in relation to any judicial proceedings of a Court except on the complaint in writing of that Court. In the case in hand there is no such complaint by the Court so far, therefore taking of cognizance on the said offence, framing of charge in relation to it and recording a finding on it do not arise for consideration. Hence, I answer this point in the negative.
122. POINT NO.4: Prosecution also contended that by producing such fabricated and false APRs accused committed offence punishable under Sec.465 of IPC. But opposing the said argument Sri P.N.H., Advocate contended that mere furnishing of incorrect APRs by accused do not attract the requirements of Sec.465 of IPC, as before invoking that penal provision prosecution has to establish making of a false document, which is an essential ingredient of the definition of forgery as contained in Secs.464 and 463 of IPC respectively. In support of his arguments he refered to the decision reported at AIR 2018 SC 2434 in the case of Sheela Sebastian v. R. Jawaharaj and Another. On the other hand Spl. P.P. submitted that act of the accused in furnishing such APRs certainly attract the ingredients of Sec.464 of IPC and he is liable to be punished for the offence under Sec.465 of IPC.
Spl.C.525/2014 174
123. Considering the submissions made by both I have keenly gone through the Sec.464 of IPC and ingredients to constitute the definition of making of a false document. It makes three classifications and explains how a false document can be made or when a document can be called as a false document. Firstly such document should have been made by person with dishonest or fraudulent intention, and with the knowledge that he is not the person authorized to make such document. Secondly a person having no authority alters any document or tampers it. Thirdly a person who causes any other person to sign or execute any document knowingly fully about his feeble or unsound mental state. If any of the above requirements is attracted, then it can be said that he commits making of a false document.
124. In the case hand accused being the author of his APRs, if he alters or modifies the contents therein, that will not attract any of the three ingredients of Sec.464 of IPC. If there is no case of making of a false document, there will be no case for forgery. In the Sheela Sebastian's case taking note that accused was not the person, who created forged power of attorney and also failure of the prosecution to trace the imposter and to proceed against him, in whose favour the forged GPA was Spl.C.525/2014 175 created, explaining the definition of forgery and making a false document, court held that accused in that case entitled for acquittal. Taking note of the observation made in that case and also discussion made by me at the beginning of this paragraph, I have no other option except to answer this point in the negative and accordingly it is answered.
125. POINT NO.5: In the result, I proceed to pass the following :
ORDER Accused is convicted for the offences punishable under Sec.13(1)(e) r/w Sec.13(2) of Prevention of Corruption Act, 1988 and under Sec.177 of IPC.
He is acquitted of the offences punishable under Sec.193 and 465 of IPC.
His bail bond and surety bond stand cancelled.
To hear on sentence.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in the open court on this the 23rd day of March, 2020).
(RON VASUDEV) LXXVI Addl.City Civil & Sessions Judge & Spl.Judge, Bangalore(CCH77) Spl.C.525/2014 176 ORDER ON SENTENCE Ld.Spl.P.P. submitted that the offender being a police officer, having a solemn duty to maintain the Law and Order, he himself indulged in amassing of wealth by adopting corrupt practice, therefore he has to be sentenced with maximum punishment as provided under the said provisions.
On the other hand Sri. PNH advocate for the offender submitted that charge of offence U/s.13(1)(e) of P.C. Act relates to preamendment of the said Sec.13 & 13(2) of the Act, so the said thing has to be taken note before deciding the quantum of punishment. He also canvased that as a public servant offender discharging his duty without any castigation by his department and many a time he has been awarded for his exemplary services. He further urged that the offender is the only bread earner of his family and he is past service record has to be taken care while fixing the quantum of sentence. Thus he prayed to take a lenient view.
Spl.C.525/2014 177 Having given my anxious consideration to the arguments canvased, I too notice that as evidenced by page no.99 to 112 of Ex.P82, offender has received several awards and certificates, but that does not mean that he rendered unblemished service so far. Page no.133 of the very same Ex.P82 (file no.7, volume no.1) shows that as per order of DCP, North Division dtd:20.02.2006, pending enquiry, this offender was suspended from service. The fact that he not only indulged in amassing of wealth disproportionate to his known sources of income, when case was registered against him, he gone to the extent of concocting the documents without any fear and the consequences and submitted his false APRs to the investigation officer. It is not that it was his stray act of misleading a lawful authority, even by filing affidavits of his father with false averments he tried to mislead the court also.
While deciding the quantum of sentence I am guided by the decisions of Hon'ble Supreme Court to which I refer one after the other. In the decision reported at 2003(4) Crimes 6 (S.C.), in the case of State of M.P. V/s. Ghanshyam Singh, Hon'ble Court held that a court will be failing in its duty if Spl.C.525/2014 178 an appropriate punishment is not awarded for a crime, as such crime would be not only against a victim, but against society at large. It further held that the punishment to be awarded for a criminal not to be irrelevant, but it should be confirm to the gravity of the offence committed. In another decision reported at 2004(4) Crimes 175 (S.C.), in the case of Aduram V/s. Mukna & others, Hon'ble court held that undue sympathy to impose inadequate sentence would do more harmful to Justice delivery system rather than upholding its dignity and majesty. It further held that it is the duty of court to award proper sentence having regard to the nature of offence and manner in which it was executed.
In Niranjan Hemachal Sashittal vs. State of Maharashtra, 2013 (4) S.C.C. 642 Hon'ble court was pleased to make the following observation:
"It can be stated without any fear of contradiction that, corruption is not be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of institutions, paralyses the economic health of a country, corrodes the sence of Spl.C.525/2014 179 civility and mars the marrows of the Governance".
Further taking note of the anguish expressed by the Hon'ble Supreme Court in the case of State of Karnataka vs. Jayalalitha, to which I have already made reference in the body of the Judgment, considering the offences for which the offender is found guilty and sentenced prescribed to them, I hold that just because this offender was rewarded on certain occasions will not induce this court to take a lenient view. His submission that he is the only bread earner of his family cannot be accepted as his own documents reveal that both his sons have completed their education and are sufficiently aged to earn on their own.
However as rightly pointed out by the offender, since the charge leveled against him pertain to the incident prior to the amendment of the P.C. Act in 2018, definitely court has to award sentence as per the punishment prescribed under old provision. In the case in hand it is proved that he amassed assets, properties and pecuniary resources to the extent of Rs. 82,48,405=83 in excess of his known sources of income and he could not satisfactorily account for possessing such excess assets and properties. While recording its final order court can Spl.C.525/2014 180 confiscate the illgotton properties, whether movable or immovable, as provided under Sec.452 of Cr.P.C. Instead of adopting the said course, I prefer to direct him to pay fine amount. In the given facts and circumstances of the case I feel just and proper to pass the following:
ORDER Offender is directed to undergo Simple Imprisonment for four (4) years and shall pay fine of Rs. 90,00,000=00 (Rupees Ninety Lakhs only) for the offence punishable U/s.13(1)(e) r/w. Sec.13(2) of P.C. Act. In default of payment of fine he shall further undergo Simple Imprisonment for two (2) years.
For the offence punishable U/s.177 of IPC he shall pay fine of Rs.1,000=00 ( Rupees One thousand only), in default he shall undergo Simple Imprisonment for one (1) month.
As offender was not in custody either during the crime stage or during the trial, the question of extending the benefit U/s.428 of Cr.P.C. does not arise.
Spl.C.525/2014 181 Office to send copy of the decision to his Head of the Department as per Rule.103 of The Karnataka Civil Services Rules. For the above reason sending copy of the Judgment to District Magistrate U/s.365 of Cr.P.C. is dispensed with.
Furnish copy of the Judgment to the offender at free of cost.
(RON VASUDEV) LXXVI Addl.City Civil & Sessions Judge & Spl.Judge, Bangalore(CCH77) ANNEXURE List of witnesses examined on behalf of the prosecution:
PW1 G.K. Siddaiah S/o Kariyaiah
PW2 Sadashivaiah S/o Puttarudhraiah
PW3 Suresh S/o Kunnaramji
PW4 Girish S. S/o Shivappa
PW5 Krishnaswamy G. S/o Gangaiah
PW6 Naveen Kumar K.V. S/o K. Veerabhadrappa.
PW7 Shivalingappa S/o Muddappa
PW8 H.K. Nanjaiah S/o Kadegowda
PW9 P. Narashimamurthy S/o Pilla Muniyappa
Spl.C.525/2014
182
PW10 H.P. Puttaswamy S/o Puttaiah
PW11 J.D. Madhuchandra Tejaswi S/o G.S. Devappa Gowda List of documents marked on behalf of prosecution:
Ex.P.1 Search Mahazar Ex.P.1(a) to (d) Signatures of PW.1, PW.2, PW.3 & PW.9 Ex.P.2 Search Mahazar Ex.P.3 Source report Ex.P.3(a) Signature of PW4 Ex.P.3(b) Signature of PW9 Ex.P.4 Valuation report with covering letter Ex.P.4(a) Signature of PW.5 Ex.P.5 Valuation report Ex.P.5(a) Signature of PW.6 Ex.P.6 Valuation report Ex.P.6(a) Signature of PW.7 Ex.P.7 Rent agreement Volume1 Page No.135 to 138.
Ex.P.8 Memo & proceedings dt: 2062012
Ex.P.9 F.I.R.
Ex.P.10 Requisition letter (volume No.1, page
No.18)
Ex.P.10(a) Signature of PW.9
Ex.P.11 Requisition letter (volume No.1, page
No.11)
Ex.P.12 Requisition letter (Volume No.1, page
Spl.C.525/2014
183
No.14)
Ex.P.13 P.F. No.104/2012 (Page No.62 o 64 of Volume No.1) Ex.P.14 P.F. No.104A/2012 (Page No.65 to 69 of volume No.1) Ex.P.15 Memo (Page No.70 of volume No.1) Ex.P.16 Authorization letter (Page No.71 of volume No.1) Ex.P.17 Explanation of accused (Page No.114 to 127 of volume No.1) Ex.P.18 Statement of account of Axis Bank (Page No.200 to 210 of volume No.2) Ex.P.19 Statement of A/c of accused and w/o of accused in Canara Bank along with application forms & covering letter (Page No.168 to 179 of volume No.2) Ex.P.20 Statement of a/c in State Bank of India (Page No.211 to 213 of Volume No.2) Ex.P.21 Service particulars of accused (Page No.72 to 88 of volume No.1) Ex.P.22 Details of Electricity meter (Page No.33 to 35 of volume No.3) Ex.P.23 Education expenditure of Praveen Kumar (Page No.55 to 60 of volume No.3) Ex.P.24 Education expenditure of Chethan Kumar (Page No.61 & 62 of Volume No.3) Ex.P.25 CC of sale deed dt: 4112004 Spl.C.525/2014 184 Ex.P.26 Cc of sale deed dt: 10112016 Ex.P.27 Gift deed dated 1832008 with Encumbrance certificate (Page No.15 to 32 of volume No.2) Ex.P.28 Particulars of Medical expenses of Smt. Gangamma (Page No.141 to 144 of volume No.3) Ex.P.29 Tuition expenses of Praveen Kumar and Chethan Kumar (Page No.69 of volume No.3) Ex.P.30 Insurance particulars of vehicle (page No.36 of volume No.3) Ex.P.31 Letter dt: 282012 from BWSSB (page No.28 of volume No.3) Ex.P.32 Education expenses of Praveen Kumar & Chethan Kumar (page No.51, 52A & 52B of volume No.3) Ex.P.33 Letter of Sri Vani High school (Page No.3 & 54) Ex.P.34 Education expenditure of Praveen Kumar and Chethan Kumar (page No.50 of volume No.3) Ex.P.35 Education expenditure of Praveen Kumar and Chethan Kumar (page No.47 of volume No.3) Ex.P.36 Education expenditure of Praveen Kumar (page No.48 & 49 of volume No.3) Ex.P.37 Education expenditure of Praveen Kumar (page No.63 & 64 of volume Spl.C.525/2014 185 No.3) Ex.P.38 Education expenditure of Chethan Kumar (page No.65 to 68 of volume No.3) Ex.P.39 Insurance particulars (page No.162, 163 & 163A of volume No.4) Ex.P.40 BExtract, Tax invoice, application form, sale certificate, Insurance policy etc., of vehicle No.KA02MF4790 (Page No.242 to 257 of volume No.2) Ex.P.41 Details of tax particulars of site (Page No.1 to 17 of volume No.3) Ex.P.42 Plan sanction details of property No.659 (Page No.18 to 20 of volume No.3) Ex.P.43 Khatha transfer details of property No.659 along with tax paid receipt (Page No.21 & 22 of volume No.3) Ex.P.44 Salary particulars of accused (Page No.11 to 14 of volume No.4) Ex.P.45 Salary particulars of accused (Page No.7 & 8 of volume No.4) Ex.P.46 Salary particulars of accused (Page No.21 to 26 of volume No.4) Ex.P.47 Salary particulars of accused (Page No.9 & 10 of volume No.4) Ex.P.48 Salary particulars of accused (Page No.4 to 6 of volume No.4) Ex.P.49 Salary particulars of accused (Page No.11 to 14 of volume No.4) Ex.P.50 Salary particulars of accused (Page Spl.C.525/2014 186 No.1 & 2 of volume No.4) Ex.P.51 Salary particulars of accused (Page No.11 to 14 of volume No.4) Ex.P.52 Salary particulars of accused vide letter dt: 582013 (Page No.11 to 14 of volume No.4) Ex.P.53 Income tax particulars of Eraiah(Page No.270 to 287 of volume No.4) Ex.P.54 BRegister extract and other documents of vehicle (Page No.258 to 277 of volume No.2) Ex.P.55 Documents relating to two wheeler (page No.218 to 232 of volume No.2) Ex.P.56 Medical expenditure of Smt. Gangamma (Page No.145 of volume No.3) Ex.P.57 Agreement, sale deed and other documents for taking power connection (page No.73 to 159 of volume No.4) Ex.P.58 Documents of Swift D'zire (Page No.233 to 242 of volume No.2) Ex.P.59 Temporary power connection to house No.659 (page No.282 & 283 of volume No.2) Ex.P.60 Documents relating to reimbursement of medical expenditure of Sri Eraiah and Smt.Kempamma (Page No.164 to 168 of volume No.4) Ex.P.61 Membership & expenditure details of Shakti Hill Resorts Pvt. Ltd., (Page Spl.C.525/2014 187 No.294 & 295 of volume No.2) Ex.P.62 Cc of registered sale deeds and encumbrance certificates (Page No.64 to 151 of volume No.2) Ex.P.63 Letter with copy of rent agreement (Page No.128 to 131 of volume No.1) Ex.P.64 Income tax returns of the accused (Page No.174 to 205 of volume No.4) Ex.P.65 Documents relating to purchase of two wheeler (Page No.214 to 217 of volume No.2) Ex.P.66 Valuation report of building in Khatha No.54/9/137/2 along with copy of Gazette (Page No.56 to 59 of volume No.2) Ex.P.67 Family tree of the accused (page No.132 of volume No.1) Ex.P.68 Documents relating to telephone No.23497601 from BSNL (Page No.290 to 293 of volume No.2) Ex.P.69 Medical expenditure of Praveen Kumar & Chethan Kumar (page No.127 to 140 of volume No.3) Ex.P.70 Details of deposits and tariffs in respect of mobile Nos.9448068577, 9686652777 & 9740654390 from BSNL (page No.37 to 41 of volume No.3) Ex.P.71 Invisible expenditure report of accused (page No.42 to 46A of volume No.3) Ex.P.72 Particulars relating to investment in Spl.C.525/2014 188 chit funds (Page No.300 to 302 of volume No.2) Ex.P.73 Details of purchase of two wheeler(page No.278 to 281 of volume No.2) Ex.P.74 Deposits and tariff of meter No.TRL 16882 and GRL1564 (page No.304 to 307 of volume No.2) Ex.P.75 Statement of a/c in State Bank of Mysore (page No.183 to 196 of volume No.2) Ex.P.76 Tax paid details of site No.54/9/137/2 (page No.23 to 27 of volume No.3) Ex.P.77 Valuation report (page No.152 to 167 of volume No.2) Ex.P.78 Medical expenditure of accused (page No.146 to 155 of volume No.3) Ex.P.79 Membership and payment particulars of Estate Club(Page No.296 to 298 of volume No.2) Ex.P.80 Documents from Margadarshi Chit Funds (page No.160 & 161 of volume No.4) Ex.P.81 Details of KGID policy Nos.1421546 & 2026134 (page No.303 of volume No.2) Ex.P.82 Schedule 1 to 23 in filesvolume No.7.
Ex.P.82(A) to (E)
Ex.P.83 Authorization letter dt: 3102013
(volume No.1, page No.9)
Ex.P.84 Letter dt: 3112014
Spl.C.525/2014
189
Ex.P.85 Letter dt: 1522014 from BESCOM
(Page No.284 to 289, volume No.2)
Ex.P.86 Letter from DCP, Northeast Dvn.,
Bengaluru (Volume No.4, page No169)
Ex.P.87 Particulars of bank transaction by
accused and his wife in different banks
(volume No.3, page No.156 to 164)
Ex.P.88 Cc of RTC extract for the years 199697
to 201112 of Sy.No.107/9A & 107/9B
(page No309, 311 to 340, volume No.2)
Ex.P.89 Sanction order dt: 28102014
Ex.P.89(A) Signature of PW.11
List of witnesses examined on behalf of the Accused:
DW1 Ramaswamy Venkatesh S/o Ramaswamy DW2 Ramakrishna S. S/o Shivaprakasham DW3 Sandhya H.N. W/o Ramashesha T.N. DW4 M.K. Shivakumar S/o M.V. Kachapeshwaran DW5 C. Srinivasalu S/o Narayanappa C. DW6 M.G. Ravi Kumar S/o K. Gangabyrayya DW7 Veeranna P. S/o Pathaiah DW8 Rangaswamy S/o Thopaiah DW9 E. Kenchegowda S/o Eraiah DW10 Guruprasad S/o Ravi Rangaiah DW11 Padmaraju H.S. S/o Sanjeevappa DW12 Sanjay Kumar S/o Babulal Spl.C.525/2014 190 List of documents marked on behalf of the Accused:
Ex.D.1 Statement of Ravikumar (volume1, page No.143 & 144) Ex.D.2 I.T. returns of Gangamma (page No.206 to 209) Ex.D.2(a) Covering letter Ex.D.3 Asset & liabilities statement of accused(volume1, page 87 to 113) Ex.D.4 Final report Ex.D.5 Leasecummortgage deed dt: 3072011 (volume6, page Nos.208 to 212) Ex.D.5(a) Signature of DW.6 Ex.D.5(b) Signature of DW.5 Ex.D.6 IT returns for AY 201213 along with annexures.
Ex.D.7 & 8 Indogas ledger extracts. Ex.D.9 Certificate u/s. 65B of Evidence Act Ex.D.9(a) Signature Ex.D.10 Statement of accounts of Benaka Tools Ex.D.11 Ledger a/c of Benaka Tools and Benovations. Ex.D.12 Ledger a/c of rent of Exigo Engineering. Ex.D.13 Bank statement of Lakshmi Vilas Bank. Ex.D.14 Report of Dr. Delvi on agriculture and
horticulture (volume4, page Nos.676 to 679, 751 to 759 and 831) Ex.D.15 Receipts of agriculture and horticulture Spl.C.525/2014 191 produces(volume4, page Nos.420 to
627) Ex.D.16 Affidavits of Eraiah, Ranganatha, H.R. Umesh and Narasimhamurthy and credit bills (volume 5 & 6, page Nos.917 to 953, 1031 to 1047, 1049 to 1051, and page Nos.1179 to 1181, 1182 to 1184) Ex.D.17 Final decree, report of Dr. Delvi, receipts, I.T. returns and rental agreement (volume4, page Nos.793 to 822 and volume5, page Nos.145 to 147, 845 to 882 and 982 to 987) Ex.D.18 Cc of FIR and complaint of Peenya police Station in Cr.No.32/2018.
(RON VASUDEV) LXXVI Addl.City Civil & Sessions Judge & Spl.Judge, Bangalore(CCH77)