Bangalore District Court
Lokayutha vs Rangaswamy M. R on 7 January, 2025
1
SPL.C.C.79/2011
IN THE COURT OF LXXVIII ADDL., CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE (P.C.Act.),
BENGALURU (C.C.H.No.79)
Present: Sri.Nandeesha. R.P. B.A., LL.B., LLM.,
LXXVIII Addl., City Civil & Sessions Judge
( Special Judge-P.C.Act ), Bengaluru.
Dated this the 7th day of January 2025
Spl.CC. No. 79/2011
Complainant : The State of Karnataka,
Represented by
Police Inspector,
Karnataka Lokayukta- Police,
City Division, Bengaluru.
(By Public Prosecutor)
v/s
Accused : Sri. M.R. Rangaswamy,
House No.81/2, 1st Floor,
Magadi Main Road,
Opp. To Veeresh Thetre,
Bengaluru - 4.
(Sri. Shathabish Shivanna,
Advocate)
Date of commission of offence: 09.06.1982 to 30.04.2009
Date of report of occurrence: 30.04.2009
Date of arrest of accused: -
Date of release of accused on bail: -
Date of commencement of evidence: 22.03.2018
Date of closing of 07.06.2023
evidence:
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SPL.C.C.79/2011
Name of the complainant: Registrar, City Civil
Court, Bangalore.
Offence complained of: Under Sections 13 (1) (e)
r/w Section 13 (2) of
the Prevention of
Corruption Act, 1988
Opinion of the Judge Conviction
Date of Judgment 07.01.2025
JUDGMENT
The Police Inspector, Karnataka Lokayukta Police, City Division, Bengaluru, has charge sheeted the accused for the offence punishable under Sections 13 (1) (e) read with Section 13 (2) of Prevention of Corruption Act, 1988.
2. On the basis of First Information Statement given by the Registrar of City Civil Court, Bengaluru (PW-1), PW-14 has registered a case against the accused in Cr. No. 36/2009 and issued FIR accordingly, thereafter, PW-14, PW-15 and PW-16 have conducted investigation and on completion of investigation, PW-16 has laid the charge-sheet against the accused making allegation of the offence punishable under Sections 13 (1) (e) r/w Section 13 (2) of the Prevention of Corruption Act, 1988 ('PC Act' in short).
3. Case of the prosecution in brief is as follows:- The accused was working as a Second Division Assistant in M.M.T.C., Court, Bengaluru, he being a public servant, during the check period which commenced from 09.06.1982 to 01.05.2009, had acquired 3 SPL.C.C.79/2011 properties and assets disproportionate to his known source of income. It is the further case of the Prosecution that value of the assets of the accused and his family members during the check period was Rs.17,40,786/-, the expenses of the accused and his family members during the check period was Rs.24,37,251/- and the income of the accused and his family members during the check period was Rs.7,92,953/-, thus, the accused was found in possession of disproportionate assets to an extent of Rs.33,85,084/- i.e., 426.50% to his known source of income, thereby the accused has committed the aforesaid offence.
4. As there are prima facie materials to take cognizance, cognizance of the offence punishable under section 13 (1) (e) r/w section 13(2) of P.C. Act., was taken and process was issued against the accused. In response to the summons, the accused has appeared before the Court through his counsel and he is on bail. The copies of final report are furnished to the accused as contemplated under Section 207 of Cr.P.C., Heard both sides on question of charges, as there are sufficient materials to frame charge, the charge is framed against the accused for the offence punishable under section 13 (1)
(e) r/w section 13 (2) of Prevention of Corruption Act, read over to the accused in the language known to him, after understanding the same, the accused has not pleaded guilty and he claimed to be tried.
5. Evidence of prosecution:-In order to prove its case, the Prosecution has got examined 18 witnesses and got marked 61 4 SPL.C.C.79/2011 documents. The witnesses examined and the documents got marked by the prosecution are as under:
Sl. Witness Name of witnesses Evidence regarding Exhibits No. Number marked
1. PW-1 Sri. Padmaraja N. Desai Service of the accused in Ex.P-1 and MMTC Court and Assets Ex.P-2 and Liability Statements of the accused
2. PW-2 Sri. L. Kantharaju Expenses incurred for Ex.P-3 rearing of dogs
3. PW-3 Sri. S.B. Chandrashekar Construction costs of the Ex.P-4 building in Mudanahalli village
4. PW-4 Sri. Ramakrishna. K Income of agricultural Ex.P-5 properties
5. PW-5 Sri. M. Income of agricultural Ex.P-6 Chandrashekaraiah properties
6. PW-6 Smt. M.J. Shobha Membership of the wife of Ex.P-7 to accused in Mudanahalli Ex.P-9 Milk Producers' Women Co-operative Society
7. PW-7 Sri. Somashekar Receipt of rent and advance Ex.P-10 amount from the accused
8. PW-8 Sri. Chandrashekar Water and electricity bills Ex.P-11 to Ex.P-13
9. PW-9 Sri. S. Rudraswamy Mahazar in Mudanahalli Ex.P-14 and house Ex.P-15
10. PW-10 Sri. C. Narasimhaiah Issuance of Encumbrance ExP-16, certificate and sale deed Ex.D-1 and Ex.D-2
11. PW-11 Smt. Meenakshi Mahazar in house No.81/2, Ex.P-19 and Bengaluru Ex.P-20
12. PW-12 Sri. S.V. Suryaprakash Expenditure on food and Ex.P-17 domestic expenditure
13. PW-13 Smt. A. Bhagya Electricity bill Ex.P-18
14. PW-14 Sri. B. Parameshwarappa FIR and Order of Ex.P-21, 5 SPL.C.C.79/2011 Authorization, receipt of Ex.P-22, search warrant, search Ex.P-23 and Mahazar, seizure of Ex.P-24 documents and receipts, Assets and Liabilities Statement of accused and other documents
15. PW-15 Sri. H.S. Manjunath Receipt of sale deed and other documents, salary Ex.P-25, details of accused Ex.P-26 and Ex.P-27
16. PW-16 Sri. Ravishankar Receipt of documents from Ex.P- 29, 30, Mudanahalli Gram 31,32,33, 34, Panchayat, receipt of 35, 36, 37, 38, documents regarding 39, 40, 41, 42, payment of education fee, 43, 44, 45, 46 documents about vehicles, to 49, 50, property documents, Ex.P-51 to payment of rent, expenses Ex.P-61 incurred for rearing of dogs and other expenses said to be made by the accused, verification of documents and filing of charge sheet 17 PW17 Sri. K. Rajesh Karnam Salary particulars of Ex.P-58 accused 16 PW18 Sri. K.S. Mukkannaiah Issuance of account extract -
on payment of electricity bills
6. Evidence of accused:- After closure of evidence of prosecution, the accused was examined and his statement was recorded as contemplated under Section 313 of Criminal Procedure Code (Cr.P.C. in short), wherein the accused has denied all incriminating evidence appeared against him and he has chosen to lead evidence on his side. The accused has got examined 6 witnesses including himself as DW-1 and got marked 39 documents. The witnesses examined and the documents got marked on the side of the accused are as under:-
6SPL.C.C.79/2011 Sl. Witness Names of the witnesses Evidence regarding Exhibits No. Number marked
1. DW-1 Sri. M.R. Rangaswamy Sources of his income Ex.D-3 to D-38
2. DW-2 Smt. Shuba Hemanth Raid by Lokayukta police and source of income of her -
family
3. DW-3 Sri. Prasanna Kumar Rent Agreement between wife of accused and himself -
4. DW-4 Smt. Gowramma Lending loan to the accused and family properties -
5. DW-5 Smt. G.B. Gayitramma Her ownership over the -
properties and her income
6. DW6 Sri. L.D. Akhilan Allotment of Quarters to Ex.D-39 accused and rent receipt.
7. After closure of evidence of the accused, I have heard the arguments of learned Special Public Prosecutor and learned counsel for the accused. The learned counsel for the accused has also filed written arguments, the learned Special Public prosecutor has relied on a decision of the Hon'ble Supreme Court reported in (2005) 4 Supreme Court Cases 81 [C.S. Krishnamurthy V/s State of Karnataka]. The learned counsel for the accused has relied on following decisions of Hon'ble Supreme Court :
1. (2017) 14 Supreme Court Cases 442 (Vasant Rao Guhe V/s State of Madhya Pradesh)
2. (2006) 1 Supreme Court Cases 420 (DSP, Chennai V/s K. Inbasagaran)
3. (1999) 6 Supreme Court Cases 559[P Nallamal and Anr., V/s State]
4. (1981) 3 Supreme Court Cases 199 [State of Maharashtra V/s Wasudeo Ramachandra Kadaikar] 7 SPL.C.C.79/2011
5. AIR 1993 SC 313[M.Krishna Reddy V/s State of Hyderabad]
6. AIR 1977 SC 796[Krishna Anand Agnihotri V/s State of M.P.]
7. (2017) 6 Supreme Court Cases 263 (State of Karnataka V/s J. Jayalalitha & Ors.,)
8. After perusal of the allegations made in the final report/charge sheet, the defense taken by the accused and hearing the arguments of both sides, the points that arise for consideration of this court are:
1. Whether the prosecution able to convince and demonstrate that the Sanction Order obtained in respect of the accused, which is marked at Ex.P-53 is valid, sustainable, tenable and is free from any inherent defects?
2. Whether the prosecution has proved that
22..
the Investigating Officers were authorized to investigate into the case as contemplated under Section 17 of the Prevention of Corruption Act, 1988?
3. Whether the prosecution has proved beyond reasonable doubt that the accused being a public servant, during the check period which commenced from 09.06.1982 to 30.04.2009 was found in possession of pecuniary resources and properties in his name and in the name of his family members, which is disproportionate to his known source of income for which the accused cannot satisfactorily account, thereby the accused has committed the offence 8 SPL.C.C.79/2011 punishable under Section 13 (1) (e) r/w Section 13(2) of the Prevention of Corruption Act, 1988?
4. What order?
9. After perusal of oral and documentary evidence available on record and also the points urged at the time of arguments, I have answered the above points as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : In the Affirmative Point No.4 : As per the final order for following:
REASONS
10. Before discussing the points for consideration, I would like to mention the admitted facts here itself in order to avoid lengthy discussion. It is not in dispute that the accused was a public servant during the check period. It is also not in dispute that the accused has not submitted his schedule to the investigating officer explaining his assets, expenditure and income, in spite of issuance of notice and sending empty formats of schedule by the investigating officer. The accused has not disputed the search in the house in Sy.No.82 at Mudanahalli village in the presence of his mother, wife and Mahazar witnesses, the accused has also not disputed seizure of documents in the house bearing No.81/2, Magadi Road, Bengaluru in the presence of Mahazar witnesses and daughter of the accused. The accused has also 9 SPL.C.C.79/2011 not raised his voice about competency of Prl., City Civil & Sessions Judge, City Civil Court, Bengaluru, to issue sanction order to prosecute him.
11. Arguments of learned Special Public Prosecutor: The learned Special public prosecutor has argued that admittedly, the accused has not furnished schedule to the investigating officer, but tried to put forth his evidence on income in the oral evidence therefore oral evidence of defence has to be cautiously examined. He argued that wife and children of the accused had no independent income, therefore the accused did not declared income of his wife and children in his Annual Properties Report, investigating officer by considering salary income of the accused, agriculture income, his family expenses and assets of accused, has rightly concluded that the accused is having disproportionate asset. He argued that the accused has not disputed the existence of assets as submitted in the final report and though the prosecution has proved that the accused had disproportionate assets during the check period, the accused has not satisfactorily explained for his income, asset and expenditure. The learned special public prosecutor has further argued that accused has not disputed sanction order and authorization issued for investigation, though there was a mistake in Ex.P-54 in mentioning name of the investigation officer, authorization was issued in the name of PW-16, therefore court has to consider it as a valid authorization.
12. The learned special public prosecutor has further argued that the prosecution has placed before the court the income of the 10 SPL.C.C.79/2011 accused known to it, the accused had to prove further if he was having additional source of income. He argued that in his cross- examination, the accused has not disputed rearing of 2 dogs, he has denied the expenditure mentioned by the prosecution made for rearing of dogs, but the accused has not stated how expenses was made for rearing of dogs. The learned public prosecutor has argued that the investigating officer has considered Rs.8,50,000/- towards unexplained expenditure, but as per the decision of the Hon'ble Supreme Court, this court can consider 1/3rd of the income towards expenditure of his family such as food, clothing etc., On these grounds the learned Public Prosecutor prays to convict the accused.
13. Arguments of the learned counsel for the accused:- Per contra, the learned counsel for the accused has urged that the complaint was given only on the basis of voluntary statement of the accused given before the police station in respect of fire incident in the court, voluntary statement mentioned in Ex.P-1 is concocted, so many complaints were lodged against the accused which are pending before the court, in order to create motive in other criminal cases, without preliminary inquiry and source report a case has been registered against him. He argued that work order given to the accused to work as a SDA to collect fine amount has not been produced before the court, the complainant has not explained in his complaint about how 350 gms of gold came to the accused, the allegations made in the complaint are blanket allegations, there is no explanation how the complainant mentioned known source of income 11 SPL.C.C.79/2011 of the accused and the complaint discloses no offence. The learned counsel for the accused has further argued that the value of the household articles mentioned in the mahazar are fixed by the investigating officer, but no explanation regarding on what basis he fixed the value, without the search warrant investigating officer had searched the government quarters where accused was residing.
14. The learned counsel for the accused has further argued that there was no application of mind before issuance of Sanction order, further Ex.P-54 was issued in the name of PW-15, but PW-16 has conducted investigation without authorization as per Section 17 of P.C., Act, therefore entire investigation is illegal. He further argued that the investigating officer has not considered correct agriculture income of the accused, wife of the accused and his mother, he had considered value of household articles without any basis in order to get much expenses, though the House No.81/2 was taken by the daughter of the accused on rent and though not even single document of the accused found in that house, the investigating officer has considered rent paid to that house towards expenses of the accused. He further argued that the petrol cost, repair expenses of the vehicles, which were considered by the investigation officer is in excess.
15. The learned counsel for the accused has further argued that without visit to agricultural lands, without taking sample of the soil and only on the basis of R.T.C., the investigating officer has assessed income of agricultural land of the accused. He argued that though 12 SPL.C.C.79/2011 there are sufficient oral evidence to prove that the house in Mudanahalli village was constructed by father of accused, the investigating officer has wrongly considered it under the head of expenses of accused. The learned counsel for the accused has further argued that wife of the accused was a stamp vendor, but investigating officer has not considered income of wife of the accused, Sy. No.169 and 172/2 belonged to the wife of the accused, but income of these properties has also not been considered. On these grounds the learned counsel for the accused prays to acquit the accused.
16. Bearing in mind the rival contentions of the learned special public prosecutor and learned counsel for the accused, I proceed to discuss the above mentioned points one by one as under:
17. Point No.1:- The learned Special Public Prosecutor has argued that the accused has not disputed the Sanction Order, hence it has to be held that the Sanction Order is valid. Regarding validity of sanction order, the learned special public prosecutor has relied on a decision of the Hon'ble Supreme Court reported in (2005) 4 Supreme Court Cases 81, which arose between C.S. Krishnamurthy v/s State of Karnataka. In this decision, the Hon'ble Supreme Court has held that '...the ratio is sanction order should speak for itself and in case the facts do not so appear it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the 13 SPL.C.C.79/2011 order.' I have applied the principles of this decision to the case on hand to decide the validity of the sanction order produced by the prosecution and marked as Ex.P-53. As aforesaid, the learned counsel for the accused has filed written arguments, wherein he has stated that the Sanction Order came to be passed on 06.01.2011 i.e., two years after filing of the complaint, registration of the FIR and after investigation and hence it is a glaring irregularity. He has further contended that the materials considered to grant sanction are inflated and incorrect.
18. In the light of the decision of the Hon'ble Supreme Court and the arguments addressed by both sides, I have analyzed the present case. It is not in dispute that the accused was a public servant who was working in a Court as a Second Division Assistant, during the check period. As provided under Section 19 of the P.C. Act, Court cannot take cognizance of the offences punishable under Sections 7, 11, 13 and 15 alleged to have been committed by the public servant except with previous sanction of the concerned as provided under the said provision. In a case of Jaswant Singh v/s State of Punjab (AIR 1958 SC 124), the Hon'ble Supreme Court has held that '.....no cognizance could be taken for prosecution of the accused for an offence under the Prevention of Corruption Act, unless sanction is obtained from the competent authority with regard to a specific offence....' Hence, it is incumbent for the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made 14 SPL.C.C.79/2011 out constituting the offence. That process can be established by the prosecution by producing original Sanction Order which contains the facts constituting the offence and the grounds of satisfaction. Before adverting to the facts and evidence placed on record, it is just and necessary to place reliance on a decision reported in 2013 (8) SCC 119 in the case between State of Maharastra through CBI V/s. Mahesh.G.Jain. In the said decision the Hon'ble Apex Court has held that '....When there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused.....'.
19. In view of this settled position of law, I now proceed to decide as to whether sanction order is in conformity with the law laid down in various judgments by the Hon'ble Supreme Court. As aforesaid, it is not in dispute that the accused was a public servant during the check period and also competency of Prl., City Civil Court Judge, Bengaluru urban to issue an order of sanction to prosecute the accused. PW-16, who is one of the Investigating Officers has deposed at para No.39 of his chief examination that on 28.01.2011 he has received Prosecution Sanction Order through A.D.G.P., Lokayukta. PW-16 has also got marked the Sanction Order as Ex.P-
53. PW-16 further deposed that after completion of investigation and securing prosecution Sanction Order, he has filed the charge- sheet against the accused on 03.03.2011 as there were sufficient evidence against the accused.
15SPL.C.C.79/2011
20. In the light of submissions made by the learned special public prosecutor and learned counsel for the accused, I deem it appropriate at this stage to go through the contents of sanction order ie., Ex.P-53. On perusal of the Sanction Order, I came to know that before issuing sanction order, the Sanctioning Authority i.e., the Principal City Civil & Sessions Judge, Bengaluru City, has discussed the purpose of granting it and also the materials placed before it. The sanctioning authority has also stated on what grounds the Sanction Order was issued. The Sanction Order, on its face, indicates that all relevant materials such as FIR, complaint, Statements of Assets & Liabilities submitted by the accused, search warrants, sale deeds, R.T.C. extracts, statements of accounts of accused and his wife, salary extracts, documents of vehicles etc., which were placed before the Sanctioning authority were considered before issuance of sanction order. From the recitals of the Sanction Order, I satisfied that the Sanctioning authority had perused all the materials placed before it, therefore, an inference may be drawn that the sanction had been granted in accordance with law. Ex.P-53 has also reveals that after having full knowledge of the material facts of the case, the sanction to prosecute the accused was issued.
21. Ex.P-53 was issued by the Principal City Civil and Sessions Judge, Bengaluru City and admittedly, the authority who issued the sanction order has not been examined before the Court. But, at a later stage i.e., when the case was at the stage of final argument, the learned Public Prosecutor has filed an application 16 SPL.C.C.79/2011 seeking permission to examine the Officer who had issued Sanction Order, but, said application was rejected by this Court. However, the Sanction Order itself discloses the facts which, constitutes prima-facie offence under Section 13 (1) (e) of the Prevention of Corruption Act. Further, the Sanction Order speaks for itself that the incumbent has no account for the assets disproportionate to his known source of income that is contained in the Sanction Order itself. The ratio is sanction order should speak for itself, in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In the case on hand, presence of prima facie case and application of mind by the sanctioning authority is apparent on the face of Ex.P-53. Therefore, contention of the accused that the order of sanction is suffered from irregularity cannot be accepted. Apart from this, in a decision reported in AIR 2010 SUPREME COURT 1451, which arose between State of Madhya Pradesh v/s Jiyalal, the Hon'ble Supreme Court has held that: 'It was also not justified for the learned single judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bona fide manner. It was of course open to the Respondent to question the genuineness or validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution'. As this decision is aptly applicable to the 17 SPL.C.C.79/2011 case on hand, I have applied the principles of this decision to the case on hand. Further, as aforesaid there is no dispute with regard to sanction having been accorded by the sanctioning authority competent to make and execute the Order of Sanction except the submission of learned counsel for the accused that there is delay in issuance of the Sanction Order. But, it must be noted that only after the investigation, the investigating officer should have applied for sanction order, accordingly, after completion of investigation, sanction order was obtained, therefore there is no question of delay in getting the sanction order. At the cost of repetition, again I state that after perusal of the Sanction Order, I came to know that it is a valid and did not lead to any injustice to the accused. In other words, there is due application of mind by the sanctioning authority and hence, the sanction is valid. Hence, I answered Point No.1 in the Affirmative.
22. Point No.2:- The Learned counsel for the accused has argued that there are glaring irregularities in the investigation conducted by the police, no authorization was given to PW-16 to conduct investigation and to file the Charge-sheet. He further argued that Ex.P-54 clearly states that it had authorized Sri H. S. Manjunatha, Dy.S.P., Karnataka Lokayukta, City Division, to continue investigation, but not to PW-16.
23. On the other hand, the learned special Public Prosecutor has argued that, in fact authorization was issued to PW-16, by mistake name of Sri. H.S. Manjunatha (PW-15) is mentioned in the order 18 SPL.C.C.79/2011 portion of Ex.P-54 instead of name of Sri. K. Ravishankar (PW-16), but body of the authorization letter says that the authorization was issued to PW-16-K. Ravishankar.
24. Authorization by a superintendent of police in favour of an officer so as to enable him to carry out investigation in terms of Section 17 of the P.C. Act is a statutory one, the power to grant such sanction has been conferred upon the authorities not below the rank of superintendent of police. When the authorization of a person to carry out investigation is questioned on the ground that he did not fulfill the statutory requirements laid down therefore in terms of the second proviso to Section 17 of the P.C. Act, the burden, undoubtedly was on the prosecution to prove the same.
25. After considering the points urged in the argument of the learned counsel for the accused, one thing is clear that the accused has disputed Ex.P-54, contending that it was issued to PW-15 but not to PW-16. It is to be noted that the accused has not disputed issuance of authorization to PW-14 and PW-15, which are marked as Ex.P-22 and Ex.P-25 respectively. As per the case of Prosecution, Ex.P-54 was issued authorizing PW-16 for investigation. But the learned counsel for the accused has argued that Ex.P-54 itself says that authorization was given to PW-15, therefore, court cannot presume that Ex.P-54 had authorized PW-16 for investigation. As per the arguments of the learned counsel for the accused, authorization was issued to PW-15. In the light of the above contention of the Prosecution as well as the accused, I have gone through the evidence of PW-15 and PW-16. In 19 SPL.C.C.79/2011 the cross examination, the learned counsel for the accused has not asked PW-15 anything about Ex.P-54. PW-16 has also not deposed anything about the authorization letter except marking of it as Ex.P-54. But at para No.59 of cross-examination of PW-16, the learned counsel for the accused has asked about Ex.P-54. In his cross-examination, PW-16 has admitted that as per Ex.P-54, the investigation was entrusted to Sri. H.S.Manjunatha (PW-15) to continue investigation. But he volunteers that the order was addressed to him and due to mistake, name of H.S.Manjunath was mentioned in Ex.P-54. At para No.115 of cross-examination of PW-16, the learned counsel for the accused has suggested that as per Ex.P-54, only the name of H.S.Manjunatha, the Deputy Superintendent of Police finds place. For this suggestion, PW-16 has answered that in Ex.P-54, he had also been authorized to conduct investigation. At para No.116 of his cross- examination, PW-16 has stated that he has not written any requisition to the Superintendent of Police, Lokayuktha to rectify the mistake or to include his name in Ex.P-54. In the light of the above-mentioned dispute between the Prosecution and the accused, I would like to go through the Section 17 of the Prevention of Corruption Act, which reads thus:
17. Persons authorized to investigate:-
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad 20 SPL.C.C.79/2011 and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:
Provided that if a police officer not below the rank of an Inspector of Police is authorized by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or makes arrest therefor without a warrant:
Provided further that an offence referred to in clause (e) of sub-section (1) of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.
26. Thus, Section 17 of the Prevention of Corruption Act, provides for investigation by a person authorized in this behalf. Authorization by a Superintendent of Police in favour of an officer so as to enable him to carry out investigation in terms of Section 17 of the Prevention of Corruption Act, is a statutory one. The power to issue such authority has been conferred upon the authorities not below the rank of Superintendent of Police.
21SPL.C.C.79/2011
27. After reading Section 17 of the Prevention of Corruption Act, I would like to peruse the authorization letter, which is marked at Ex.P-54. After careful reading of the preamble and reference No.2 of Ex.P-54, I noticed that the authorization to PW-15 i.e., Sri. H.S. Manjunath was already issued on 09.11.2009 itself and further investigation was entrusted to PW-16 i.e., K. Ravishankar by the Superintendent of Police, Lokayukta on the basis of a letter written by PW-15. In Ex.P-54, the Superintendent of Police has also given reasons for entrusting investigation to PW-16. All these contents of Ex.P-54 make it clear that Ex.P-54 was issued to PW-16 entrusting for further investigation. Further, I mind that settled principle of law is that a document cannot be judged by looking into any single sentence of that document, but document should be judged by considering whole document.
28. No doubt, as argued by the learned counsel for the accused, in the order portion of Ex.P-54, name of PW-16 is not found and admittedly, PW-16 has not taken steps to rectify the mistake crept in Ex.P-54, but admittedly Ex.P-54 was addressed to PW-16. The learned counsel for the accused has suggested to PW-16 that Ex.P-54 was sent to him only for his information. But, as stated above, the contents of Ex.P-54 clearly state that this Order of Authorization was issued to PW-16 for further investigation on the basis of a letter of PW-15, dated 23.01.2010. Apart from this, the authorization letter authorizing PW-15 for registration of the case and for investigation was issued by the Superintendent of Police on 09.11.2009 itself, which 22 SPL.C.C.79/2011 is marked as Ex.P-25. When that being the case, issuance of authorization letter once again to PW-15 did not arise. Therefore, by rejecting the contention of the learned counsel for the accused, I hold that PW-16 was duly authorized to conduct further investigation as contemplated under Section 17 of the Prevention of Corruption Act, 1988. Accordingly, I have answered Point No.2 in the Affirmative.
29. Point No.3:- Coming to assets, expenditure and income of the accused and his family members, oral evidence, documentary evidence and arguments of learned public prosecutor and counter argument of the learned counsel for the accused play important role. To substantiate charge under Section 13(1)(e) of the Prevention of Corruption Act, the prosecution must prove that (1) the accused is a public servant, (2) the nature and extent of pecuniary sources or property which were found in his possession, (3) what were his known sources of income ie., sources known to the prosecution and (4) such resources or property found in possession of accused were disproportionate to his known source of income. Once these ingredients are satisfactorily established, the offence of criminal misconduct under Section 13(1)(e) is complete, unless the accused is able to account for such resources or property. Therefore, in disproportionate asset cases, the primary burden to bring home the charge of criminal misconduct would be on the prosecution to establish beyond reasonable doubt that the public servant or the public servant through anyone else had during the period of his office been in possession of pecuniary resources or property disproportionate to his 23 SPL.C.C.79/2011 known source of income. If the prosecution discharge its burden, the onus shifts to the accused and if the accused fails to satisfactorily account for the same, he would be in law held guilty of the offence punishable under Section 13 (1) (e) of PC Act. As aforementioned, it is not in dispute that the accused was a public servant during the check period. The learned Public Prosecutor has argued that though the accused has not submitted his schedule about his income, expenditure and assets, in his evidence he has deposed about his income in his oral evidence, but without any proof. He argued that though the accused and his wife had purchased the properties during the check period, they have not been declared in the statement of assets and liabilities, wife and children of the accused had no independent source of income, therefore, the accused had to satisfactorily account for his income, but the accused has not given satisfactory answer for having assets and expenditure, which is disproportionate to his known source of income. He further argued that the statements of assets and expenditure prepared by the Investigating Officer has not been disputed by the accused, the accused has admitted the existence of assets, therefore, the burden shifted to the accused to account for his income. The learned Public Prosecutor has further argued that the accused has contended that his wife was doing stamp vending business in Bengaluru from 1998, his wife and his mother were doing milk vending business, but no evidence has been produced in this regard.
30. On the other hand, the learned counsel for the accused has argued that wife of accused has purchased the properties out of the 24 SPL.C.C.79/2011 amount given by her parents, but the investigation officer without considering this fact has taken them as assets of accused, the house in Mudanahalli village was constructed by father of the accused and this fact is proved in the oral evidence, the entire assessment of the house is smacked with malafides. He further argued that on the basis of the letter of the investigating officer, valuation report of the house was given by the expert hence, it cannot be considered. The learned counsel has argued that the assets purchased by family members have been added to the assets of the accused, additional particulars in which the accused has no involvement have been attributed to the accused. He argued that total agriculture income of the accused and his mother is Rs.14,43,337-00 and income of wife of the accused was Rs.6,44,405-00, the evidence on record clearly substantiated that total expenditure of the accused and his family was Rs.4,00,882-00, total assets of the accused was Rs.1,20,093-00 and total income of the accused and his family was Rs.20,35,111-00, thus there was no question of disproportionate asset during the check period.
31. After the investigation, the Investigating Officer came to the following conclusion in respect of assets, expenditure and income of the accused:
i. Assets of the accused - Rs. 17,40,786/-. ii. Expenditure incurred - Rs. 24,37,251/-. iii. Income of the accused - Rs. 7,92,953/-. iv. Disproportionate of asset - Rs. 33,85,084/-.25
SPL.C.C.79/2011
32. On the basis of the above formula, it is alleged by the prosecution that the accused has amassed wealth which is 426.50% more than his known source of income. The assets possessed, the expenditure made and income earned by the accused as per the prosecution are discussed one by one under various heads are as follows:-
33. First, I would like to discuss about the assets of the accused and their value.
A). ASSETS OF ACCUSED DURING THE CHECK PERIOD
34. The movable and immovable assets and their value, as per the case of the prosecution and as per the defence of the accused are as follows:
Assets and Value of Assets Sl. their value as Description of Assets as per the No. per the case of prosecution accused Site No. 670/H, situated at Judicial
1. Rs. 61,598-00 Rs. 61,598-00 Block, Yelahanka.
Sy.No. 27/3, 2 guntas of land situated at Not an asset of
2. Rs. 8,000-00 Mudanahalli village. accused Construction cost of building in Sy.No. Not an asset of
3. Rs. 4,00,000-00 82 of Mudanahalli village. accused Site No. 309, sitauted at Judicial Block, Not an asset of
4. Rs. 9,60,000-00 Thalaghattapura. accused 10 Guntas of land in Sy. No. 155 of Not an asset of
5. Rs. 20,000-00 Natanahalli village. accused 17 Guntas of land in Sy.No. 155 of Not an asset of
6. Rs. 42,000-00 Natanahalli village. accused 26 SPL.C.C.79/2011 Balance in the account of accused in
7. Karnataka Bank Limited, C.M.M., Rs. 785-00 Rs. 785-00 Court, Bengaluru.
Balance in the account of wife of accused in Karnataka Bank Limited,
8. Rs. 488-00 Rs. 488-00 C.M.M., Court, Bengaluru.
Shares in Kalidasa Co-Operative
9. Society Limited which are in the name Rs. 2,000-00 Rs. 2,000-00 of wife of accused.
Purchase value of Two Wheeler vehicle
10. Rs. 3,000-00 Rs. 3,000-00 bearing registration No. KA 05 W 9454 Purchase value of Two Wheeler vehicle
11. bearing registration No. KA 02 ER Rs. 52,222-00 Rs. 52,222-00 4217 Purchase value of Household articles Not an asset of
12. Rs.1,63,513-00 found in House No. 81/2. accused Purchase value of Household articles Not an asset of
13. Rs.27,050-00 found in house at Mudanahalli village. accused Deposit made to take electricity Not an asset of
14. connection to the house at Mudanahalli Rs. 130-00 Village. accused TOTAL Rs.17,40,786-00 Rs.1,20,093
35. Out of 14 heads of assets found by the investigating officer, which are mentioned in the above table, the accused has admitted the assets earned and their purchase value, which are mentioned at Sl. No. 1 and Sl. Nos. 7 to 11. But, he has disputed the assets and their value, which are mentioned at Sl. Nos. 2 to 5 and Sl. No. 12 to 14 of the above mentioned table. Therefore, only the assets, which have been disputed by the accused ie., assets mentioned at Sl. No. 2 to 5 and Sl. Nos. 12 to 14 of the above mentioned table have been taken up for discussion. The discussion and findings of the court on disputed assets and their value are as under:
27SPL.C.C.79/2011
a). Sy.No. 27/3 measuring 02 guntas of land situated at Mudanahalli village:-
i). In the charge sheet, it is stated that 02 guntas of land in Sy.No. 27/3 of Mudanahalli village was purchased by the accused and this fact is confirmed by the document which has been issued by the Sub-Registrar of K.R. Pet, hence, this property is considered as an asset of the accused. Contention of the accused is that this property was purchased by his wife and consideration amount to purchase this property was paid by mother of his wife.
The learned counsel for the accused has argued that mother of the wife of the accused has purchased this property in the name of wife of the accused, DW-5 has deposed that her mother has paid entire consideration amount. He further argued that the sale deed has no whisper about the accused, but the investigating officer has wrongly considered this property as an asset of the accused and the prosecution has failed to prove involvement of the accused in purchasing this property. The learned special Public Prosecutor has argued that the accused has not produced evidence to prove that mother- in-law of the accused has paid consideration amount, hence this property has to be considered as an asset of the accused. Though the accused has contended that this property was purchased by his mother-in-law in the name of his wife, the accused/DW-1 has not even stated in his 28 SPL.C.C.79/2011 evidence that the consideration amount to purchase the property was paid by his mother-in-law. Apart from this, though the wife of accused has been examined as DW-5, she has not whispered anything about payment of consideration amount by her mother to purchase this property. But, in her cross-examination, for the suggestion of the learned counsel for the accused, DW-5 has stated that her mother has purchased the property in her name. Except this statement, there is no evidence to substantiate the contention of the accused that consideration amount was paid by mother-in-law of the accused to purchase this property.
ii). PW-10, who has issued a certified copy of the sale deed has got marked the certified copy of the sale deed pertaining to Sy.No.27/3 as Ex.P-16. PW-10 has been cross examined by the learned counsel for the accused, but nothing has been elicited from his mouth to support the defence of the accused. Admittedly, the sale deed was registered in the name of wife the accused. The contents of Ex.P-16 (the certified copy of sale deed dated 15.09.2008) have clearly state that wife of the accused by name Smt. Gayathramma has purchased this property for consideration of Rs.8,000/- on 15.09.2008. In fact Ex.P- 16 has not been disputed by the accused and nowhere in this document it is stated that consideration amount was 29 SPL.C.C.79/2011 paid by mother of wife of the accused or that mother-in- law of the accused had purchased the property in the name of wife of accused.
iii). At para No. 47 of cross-examination of PW-16, the learned counsel for the accused has asked about other three transactions, but as per the averments of Ex.P-16 except sale of 02 guntas of land in Sy.No. 27/3, there were no any other transactions. Further suggestion of the learned counsel for the accused was that, only to show higher value of the property, investigating officer has produced Ex.P-16 though property Nos. 3945 and 3640 do not belonged to mother of the accused. However, this suggestion has been denied by PW-16. But it is to be noted that there is no averments about property Nos. 3945 and 3640 and also mother of the accused in Ex.P-16, as suggested by learned counsel for the accused.
iv). At para No.161 of his evidence, PW-16 has specifically deposed that Sy. No. 27/3, measuring 02 guntas of land was purchased by the accused in the name of his wife for Rs. 8,000/-, hence, it is considered towards asset of the accused. In the cross-examination of PW-16, the learned counsel for the accused has asked about Ex.D-
1. But a perusal of Ex.D-1 what it says that this document 30 SPL.C.C.79/2011 is pertaining to Sy. No. 138/1A, but not with respect to 02 guntas of land in Sy.No. 27/3.
v). The learned counsel for the accused in his oral arguments as well as in his written arguments submitted that mother of wife of the accused has paid entire consideration amount to purchase 02 guntas of land in Sy.No. 27/3. But at para No. 133 of cross-examination of PW-16, the learned counsel for the accused has suggested that wife of the accused has purchased the property for Rs. 8,000/- out of her own income. Thus, there is contradiction in the contention of the accused himself about payment of consideration amount. It is also the contention of the accused that his wife was doing stamp vending business in the Court premises. When the accused has contended that mother of wife of the accused has paid consideration amount or that wife of the accused has purchased out of her own income, he had to prove the same and mere suggestion will not take away the credibility of documentary evidence. Though the accused has taken a contention that his wife was doing stamp vending business, he has not produced evidence in this regard. Whether, wife of the accused was doing stamp vending business or not would be discussed at a later stage. At this stage, even if it is presume that the wife of the accused had purchased the property out of her own 31 SPL.C.C.79/2011 income, the property should be considered as an asset of accused, because while deciding the disproportionate income, assets, expenditure and income of the accused and his family members should have been taken into consideration. It is pertinent to note that as per the certified copy of the sale deed, which is in Ex.P-16, 02 guntas of land in Sy.No.27/2 was purchased by wife of accused on 15.09.2008. As aforesaid, the accused has not disputed purchase of this property by his wife under a sale deed dated 15.09.2008. It is to be noted that there is no dispute that this property was purchased on 15.09.2008 for consideration of Rs.8,000-00. Therefore, I hold that the investigating officer has rightly considered 02 guntas of land in Sy.No.27/3 as an asset of the accused.
b). House constructed in Sy.No.82 of Mudanahalli village:-
i). In the charge sheet, the investigating officer has submitted that the accused has constructed a house in Sy.No.82 of Mudanahalli village, cost of construction was Rs.4,00,000-00, hence this house has been considered as an asset of the accused. Regarding cost of construction, the prosecution has got examined Executive Engineer, Housing Board, Mysore, as PW-3 who assessed the cost of construction of the house at Rs.4,00,000-00. But, before discussing on the point of cost of construction, first it is 32 SPL.C.C.79/2011 necessary to decide whether the prosecution has proved that the accused has constructed the said house.
ii). The learned counsel for the accused has argued that the land in Sy.No. 82 is an ancestral property of the accused, after the death of his father in the year 1995 it came to the name of mother of the accused, said house was partially built by father of the accused in the year 1994 and completed it by his mother. He further argued that DW-4 has clearly deposed that she herself has built the said house and hence, claim of the prosecution that the accused spent Rs.4,00,000-00 to built the house is outrageous and false.
The learned counsel for the accused has also argued that father of the accused had constructed the said house, mother of the accused has got it repaired. Further, the learned counsel for the accused has also seriously disputed the report of the Executive Engineer, who assessed the cost of construction. It is to be noted that the accused has prayed to consider the agriculture income of mother of accused towards income of the accused and his family members. But he contended that as his mother has got constructed remaining portion of the house, cost of construction should not be considered towards asset of the accused. If agriculture income of mother of the accused is considered as income of the accused and his family members, the asset and expenditure of his mother have 33 SPL.C.C.79/2011 also to be considered towards asset and expenditure of the accused and his family members. The prosecution has contended that the accused has spent Rs.4,00,000-00 for construction of the house. DW-4, who is the mother of accused deposed that she has constructed the house out of income of aracanut and coconut crops. As per the contents of Ex.D-18, 3 acres of land in Sy.No.82/7 fallen to the share of the accused. As per the contents of Ex.D-3 and Ex.D-4, 1.21 acres of land in Sy.No.82/7 is in the name of mother of accused. But, as per the written arguments of the accused, agricultural income of the accused and his mother in Sy.No.82 during 1998-2009 was Rs.7,73,357-00. This argument of the accused shows that the accused and his mother residing jointly and jointly doing agriculture. Therefore, Asset of mother of accused has to be considered as assets of family members of accused.
iii). PW-16 has deposed that he has received a letter from Mandagere Gram Panchayath with regard to construction of a house in Sy.No.82 by the accused without obtaining necessary licence. PW-16 has denied the suggestion of the learned counsel for the accused that accused is not the owner of that house and he was giving false evidence to the effect that the accused has constructed the house. It is to be noted that regarding construction of a house in Mudanahalli village, PW-16 has got marked a document, 34 SPL.C.C.79/2011 which was issued by Mandagere Gram Panchayath as Ex.P-29. The contents of this document say that Smt. Gowramma ie., mother of the accused had put up construction without taking necessary licence from Gram Panchayath. This document has also says that said house is constructed in Sy.No.82. But there is no evidence on record to show in which year that house was constructed. If the house was constructed before the check period of after the check period, the house cannot be considered as an asset of accused and his family members. The contents of Ex.P-29 creates doubt about contention of the prosecution that the house was constructed by the accused. When the accused has contended that this house was constructed by his father and his mother has got it repaired, the burden was on the prosecution to prove that said house was constructed by the accused. In the absence of evidence, only on the oral say of the prosecution witnesses, court cannot hold that the accused has constructed the house spending Rs.4,00,000-00. Therefore, I decline to consider the house constructed in Sy.No.82 of Mudanahalli village under Asset of the accused.
c). Site No.309, which is situated at Judicial Layout, Talaghattapura:-
i). The prosecution has contended that the accused had purchased Site No. 309 in Talaghattapura village for Rs.35
SPL.C.C.79/2011 9,60,000/- in the name of his wife-Smt. Gayathramma and this fact can be ascertained from the documents which are given by the Karnataka State Judicial Department Employees' House Building Co-Operative Society Limited, Sheshadripuram, Bengaluru. The learned counsel for the accused has argued that wife of the accused had purchased this property under a sale deed, which is marked as Ex.P-43 (b), but there is no involvement of the accused in purchasing this property, wife of the accused had obtained loan from her mother to purchase this property and she has also used source of agriculture income.
ii). On the basis of Ex.P-43 (b), PW-16 has deposed that the accused has got allotted a site in Judicial Layout, Talaghattapura for Rs. 9,60,000/-. He has also got marked a letter of the Karnataka State Judicial Department Employees' House Building Co-Operative Society Limited as per Ex.P-44. Ex.P-43 is a letter of Sub-Registrar, Ex.P- 43(b) is a certified copy of the sale deed pertaining to site No. 309.
iii). At para No. 5 of her chief examination, DW-5 has deposed that a site in Talaghattapura was in her name, but it was sold 8 years back, her parents have paid amount to purchase that property. At para No.15 of her cross 36 SPL.C.C.79/2011 examination, DW-5 has deposed that her parents have paid Rs. 6,00,000/- to purchase that property and it was known to her husband, but she did not know whether her husband has disclosed it in his statement of assets and liabilities. Further, DW-5 has denied the suggestion of the learned Public Prosecutor that her parents have not paid amount to purchase the site. Though DW-5 has denied suggestions that her husband got granted site in her name and paid the consideration amount, except oral evidence there is no acceptable evidence to believe her version.
iv). Though wife of the accused who has been examined as DW-5 has denied suggestion of the learned Public Prosecutor that she had no independent income and consideration amount to purchase site No. 309 was paid by the accused, in her chief examination, she has not even deposed that her parents had paid consideration amount to purchase the site or that she had borrowed loan of Rs. 6,00,000/- from her mother, as contended by the learned counsel for the accused in his arguments. Thus, except the arguments of learned counsel for the accused, nothing is on record to believe that wife of the accused had purchased site No.309 borrowing loan of Rs.6,00,000-00 from her mother. Undisputed fact is that the sale deed of the site No. 309 is in the name of wife of the accused. The contents of Ex.P43(b) are very clear to hold that wife of the accused-
37SPL.C.C.79/2011 Smt.Gayathramma had paid the consideration amount of Rs.7,26,000/- in installments.
v). It must be noted that sale deed pertaining to site No.309 was executed in the year 2010 ie., after the check period, but admittedly, the consideration amount was paid in installments. The contents of Ex.P-44 and attested copies of receipts issued by the Karnataka State Judicial Department Employees' House Building Co-Operative Society Limited, which are undisputed documents, clearly state that the consideration amount was paid in installments from 25.08.2005 to 01.09.2006 ie, within the check period. Thus, though the site was registered in the name of wife of accused in the year 2010, consideration amount was paid during 2005-06. As aforesaid, there is no evidence on record to show that mother of wife of the accused had paid consideration amount. Though the accused is examined as DW-1 and his wife is examined as DW-5, neither them have deposed in their chief examination that the consideration amount of Rs.7,26,000-00 was paid by mother of Smt. Gayathramma or that Smt. Gayathramma had borrowed loan of Rs.6,00,000-00 from her mother. DW-5 has deposed that she was having a site in Talaghattapura and sold it about 8 years back. But she has not stated when, to whom and for how much consideration amount said site was sold. It is interesting to note that in 38 SPL.C.C.79/2011 his evidence, though the accused has deposed about Sy.Nos. 155, 82/7, 95, 169, site No. 487 etc., he has not uttered even a single word about site No. 309. Sale deed is a registered document and contents of this document are very clear that wife of the accused had purchased this site. Therefore, in the absence of any contra evidence, there is no reason to disbelieve the contents of the sale deed and receipts issued by Karnataka State Judicial Department Employees' House Building Co-Operative Society Limited in favour of wife of accused. Accordingly, I hold that site No.309 was purchased by wife of the accused for consideration of Rs.7,26,000-00 and hence considered it as an asset of the accused.
d). 10 Guntas of land and 17 Guntas of land in Sy.No. 155, which are situated at Natanahalli village:
i). In the charge sheet, the Investigating Officer has opined that these two properties were purchased by the accused in the name of his wife. The Investigating Officer has also obtained certified copies of the sale deeds of these properties and got marked them as Ex.P-48 and Ex.P-49.
PW-16 has denied the suggestion of the learned counsel for the accused that the wife of the accused has purchased these two properties out of her own income. It is to be noted that even if wife of the accused had purchased the lands out of her own income, the lands should be 39 SPL.C.C.79/2011 considered as asset of the accused and his family members. When the learned counsel for the accused himself suggested that wife of the accused had purchased it, the contention of the prosecution that said site is an asset of the accused should be accepted.
ii). The learned counsel for the accused has suggested that it was purchased by wife of the accused out of her agricultural income. But again he has also argued that the consideration amount to purchase the said lands was paid by mother of Smt.Gayathramma and there was no involvement of the accused in payment of consideration amount to purchase of the said lands in Sy.No.155 under Sale Deeds dated 21.4.2007 and 31.1.2008. He further argued that purchase of these properties by wife of the accused has been confirmed in the deposition of DW-5 and the Prosecution has failed to establish that the said amount was incurred by the accused. It is further submitted that entire payment was made by the wife of the accused through the payments made by her parents and her minimal savings through agricultural sources.
iii). At para No.135 of cross-examination of PW16, the learned counsel for the accused has again suggested that Smt.Gayathramma had purchased 10 Guntas of land in Sy.No.155 for Rs.20,000/- and 17 Guntas of land in same Survey Number for Rs.42,000/- out of her own 40 SPL.C.C.79/2011 independent source of income from stamp-vending, agriculture and horticulture. But, not even single evidence has been produced by the accused to substantiate his contention that his wife was doing stamp-vending business. Whether the wife of the accused was getting agriculture and horticulture income and income from stamp vending would be discussed at a later stage under the head 'income'. But, at this stage, in the absence of any amount of evidence regarding payment of consideration amount by the parents of wife of accused and as the accused has admitted the Ex.P-48 and Ex.P-49 and also as he has admitted that his wife has purchased these two properties, I hold that 10 guntas of land was purchased for Rs.20,000-00 and 17 guntas of land was purchased for consideration of Rs.42,000-00.
iv). Ex.P-24 shows that, the accused after he has promoted as an SDA, has started to submit his statements of assets and liabilities to his higher authority from year ending 2004. The Registrar of City Civil Court, Bangalore has sent a letter to the investigating officer along with Form No.1 filed by the accused from the year ending 2004 to year ending 2008. After perusal of Form No.1 filed from 2004 to 2008 (the statements of list of movable properties in Ex.P-24), I came to know that for the year ending 2007, the accused had informed about purchase of 41 SPL.C.C.79/2011 10 guntas of land in Sy.No.155, but though his wife had purchased 17 guntas of land in Sy.No.155 on 31.01.2008, he has not intimated the same to his appointing authority / higher authority ie., to the Prl. District and Sessions Judge, City Civil Court, Bangalore in this case. Therefore, purchase of 17 guntas of land in Sy.No.155 cannot be considered for inclusion in the expression "known source of income". Since, these two properties were purchased by his wife, I have considered these two properties as assets of the accused his family members and total consideration amount is taken as Rs.62,000-00.
e). Household articles found in House No.81/2, Magadi Road, Bengaluru.
i). The learned special public prosecutor has argued that the accused has admitted search in the house No.81/2 in the presence of panchas and his daughter, the accused has also not disputed the presence of household articles at the time of search, as the accused has not produced the bills or receipts of house hold articles, the maahzar witnesses have valued the household articles at Rs.1,63,513-00 therefore, same has to be considered. The learned counsel for the accused has argued that said house was taken by daughter and son-in-law of the accused on rent, they were residing in the said house and paying rent, the accused was not residing in the said house, therefore the household articles cannot be taken as assets of the accused.
42SPL.C.C.79/2011
ii). PW-14 has deposed about search and seizure of some documents in the house No.81/2. A perusal of chief examination and cross examination of PW-11 and PW-14 makes it clear that the accused has not disputed the mahazar conducted in the house No.81/2. But the accused has disputed the case of the Prosecution that accused was residing in the said house as a tenant. The copy of a rent agreement, which is marked as Ex.P-51, which is dated 23.01.2007 and which has not been disputed by the accused was only for a period of 11 months. The contents of this document state that the agreement was between wife of the accused and the land lord, the accused has also not disputed that his wife had entered into that rent agreement. On the basis of this document, the prosecution is claiming that the accused had taken that house on rent and residing in that house as a tenant and as he was a tenant in that house, the household articles have to be considered assets of the accused. DW-2, who is daughter of the accused has deposed that as she was newly married, the land lord told her to bring elderly person to enter into an agreement, hence her mother had executed the rent agreement. DW-3 who was the land lord of the said house has also deposed in the line of DW-2. DW-3 has also deposed that one Hemanth who was son-in-law of the accused was paying rent.
43SPL.C.C.79/2011
iii). The learned Public Prosecutor has asked DW-2 and DW-3 about terms and conditions of rent agreement, which says about sub-lease, payment of rent etc., As argued by the learned prosecutor, the contents of the agreement have specifically state that entire rent agreement was between wife of the accused and DW-3 and the terms and conditions bind these two persons only. But it is pertinent to note that as per the evidence of PW-11 and PW-14, first PW-14 went to the House No. 81/2 along with search warrant and mahazar witnesses, as said house was locked, they went to a Government Quarters in Rajajinagar, where daughter of the accused and her husband were there, then they returned to House No. 81/2 along with daughter of the accused, opened the door and conducted search. It shows that the accused was residing in Government Quarters at Rajajinagar. Admittedly, the accused was allotted with a Government Quarters at Rajajinagar. Ex.D-15, Ex.D17 and Ex.D-18 proved that rent was deducted from the salary of the accused towards Government Quarters at Rajajinaga. In his chief-examination itself, PW-14 has deposed that he had received an information that house No.81/2 was locked and accused was residing in Rajajinagar Government Quarters, then they proceeded towards Government Quarters, Rajajinagar. When the accused was allotted with Government Quarters, there was no necessity for him to take a house on rent, as contended 44 SPL.C.C.79/2011 by the prosecution. Only on the basis of copy of rent agreement, that too of the year 2007, which was only for 11 months, it can not be said that the accused was residing in a rented house though he was allotted a Government Quarters.
iv). Further, the accused has also given satisfactory explanation for executing rent agreement by his wife. In fact, PW-11 and PW-14 in their cross-examination have admitted that key of the house No. 81/2 was with the daughter of the accused. PW-14 has also admitted that after going to Government Quarters No. 13, he came to know that it was a Quarters of accused. PW-14 further stated that he has not verified as to in whose name gas cylinders were found in house No. 81/2. Apart from this, investigating officer has not taken strain to examine neighboring persons to get confirm as to who was really residing in House No. 81/2. Interestingly, though the Prosecution has got marked copy of a rent agreement, PW- 14 has not stated where it was seized. Even in Ex.P-19 (mahazar conducted in House No.81/2), PW-14 has not mentioned about seizure of that rent agreement. Thus, the evidence on record is too insufficient to hold that accused was residing in House No. 81/2 as a tenant and making payment of rent. Even the circumstances also not supports the case of the Prosecution in this regard. Hence, 45 SPL.C.C.79/2011 contention of the Prosecution that the household articles found in House No.81/2 belonged to the accused cannot be believed. When the prosecution failed to prove that the accused had taken House No.81/2 on rent, there was no need to discuss about value of household articles. Accordingly, the contention of the prosecution that the household article found in the House No.81/2 have to be considered towards assets of accused is hereby rejected.
f). Household articles found in the house in Sy.No.82 of Mudanahalli village:-
i). In the charge sheet, the investigating officer has submitted that during search in the house, which was situated at Sy.No.82 of Mudanahalli village, he found household articles, therefore, he has considered those household articles as assets of the accused. The investigating officer has also stated that value of house hold articles was fixed by the panch witnesses at Rs.27,050-00. The learned public prosecutor has argued that during the time of search and mahazar, mother and wife of the accused were present, in their presence value of the articles was fixed and they have also signed the mahazar, it shows that family members of the accused had admitted the value of household articles. The prosecution has also got marked the mahazar as Ex.P-14. The accused has not disputed search, conducting of mahazar in the 46 SPL.C.C.79/2011 house at Mudanahalli village, presence of household articles as mentioned in Ex.P-14 and also presence of his mother and wife at the time of search and mahazar. A perusal of Ex.P-14 makes it clear that during search the investigating officer and mahazar witnesses found several household articles along with pair of oxen, a buffallo, a calf etc., and valued these articles and animals at Rs.27,050-00.
ii). At the time of argument on 'cost of construction of a house in Mudanahalli village', the learned counsel for the accused has argued that the land in Sy.No. 82 is an ancestral property of the accused, after the death of his father in the year 1995 it came to the name of mother of the accused, said house was partially built by father of accused in the year 1994 and completed it by mother of the accused. He further argued that DW-4 has clearly deposed that she herself has built the house and hence, claim of the prosecution that the accused spent Rs.4,00,000/- to built the house is outrageous and false. The learned counsel for the accused has also argued that father of the accused had constructed the said house, mother of the accused has got repaired it.
iii). As discussed under Sl. No.3 of the above mentioned table, ie., 'construction cost of the house' of Mudanahalli 47 SPL.C.C.79/2011 village, this court has already held that the accused and mother were residing in joint family and jointly cultivating their agricultural properties. Apart from this, the contention of the accused that income of mother of the accused in agriculture properties has to be taken into consideration for calculation of income of accused and his family members, shows that the accused and his mother were residing in joint family. In fact, the learned counsel for the accused has suggested PW-9, who is a mahazar witness that household articles were belonging to Smt. Gowramma. When income of mother of the accused is considered under the head 'income of the accused and his family members', the household articles found in House of Mudanahalli village have also to be considered as assets of the accused and his family.
iv). Now, the question is whether the value of household articles said to be fixed by the investigating officer and panch witnesses can be considered or not. As per the argument of the learned counsel for the accused, household articles cannot be considered towards asset of accused.
PW-9, who is a mahazar witness has deposed about the search and mahazar in the house of Mudanahalli village, but he has not deposed anything about value of the household articles. PW-16 has deposed that as per Ex.P- 14 value of household articles found in house of 48 SPL.C.C.79/2011 Mudanahalli village was Rs.27,050-00 and he has taken those household articles towards asset of the accused. Except these oral evidence of PW-9 and PW-16, nothing is on record how and on what basis value of the household articles was fixed and who has fixed the value. The investigating officer who conducted search in the house of Mudanahalli village has not been examined by the prosecution. PW-9 who was present at the time of mahazar as a panch witness has not stated how the value of household article was assessed. Thus, there is no evidence on record on what basis value of household articles was assessed by the investigating officer. No doubt, value of household articles were mentioned in Ex.P-14, but same is not substantiated through the oral evidence by the witnesses who present at the time of search and mahazar. The learned counsel for the accused has relied on a decision of Hon'ble Supreme Court reported in (1977) 1 Supreme Court Cases 816, which arose between Krishnananda Agnihotri v/s The State of Madhya Pradesh. He further argued that as the prosecution has failed to prove its contention, evidence given by the accused has to be relied on. In this decision, the Hon'ble Supreme Court has held that if there is no evidence on behalf of prosecution to show that barring the radio any of these other articles were purchased by the appellant and in the absence of such evidence, the statement made by the 49 SPL.C.C.79/2011 appellant on oath has to be accepted. In the case on hand, though the prosecution has proved its contentions regarding assets found in the possession of the accused and his family members, the prosecution has failed to prove that value of house hold articles found in the house of accused was Rs.27,050-00. Therefore, by applying the principles of the decision of the Hon'ble Supreme Court, I hold that the prosecution has failed to prove the value of household articles found in the house at Sy.No.82 of Mudanahalli village. Therefore, I decline to consider Rs.27,050-00 towards 'asset' of the accused.
g). Deposit of Rs.130-00 made to get electricity connection to Mudanahalli house:-
i). As discussed above, the accused and his mother were jointly residing in the house at Mudanahalli village and jointly cultivating agricultural lands. The learned counsel for the accused has argued that house was built by mother of the accused and she used to reside in that property and she had incurred the expenses to take electricity connection. Admittedly, electricity connection to the house of Mudanahalli village is in the name of wife of accused. In this regard the Prosecution has got marked Ex.P-40, which has not been disputed by the accused. In this document it is specifically mentioned that on 17.09.2008 electricity connection was given to the house 50 SPL.C.C.79/2011 of Smt. Gayathramma W/o of Rangaswamy and she had paid deposit of Rs.130-00 on 29.05.2008. At the cost of repetition, again I state that Ex.P-40 has not been disputed by the accused. Even if the argument of the learned counsel for the accused that mother of the accused had deposited Rs.130-00 to take electricity connection is accepted, then also this deposit has to be considered as asset of the accused as mother and family of accused are living in joint family. Hence, deposit of Rs.130-00 made to take electricity connection to the house at Mudanahalli village is considered towards asset of the accused.
36. Thus, after thorough discussion on oral and documentary evidence, this court has found that the total value of the assets of the accused and his family members is Rs.9,16,223-00. The assets of the accused and their value as per the contention of prosecution, as per the case of the accused and findings of this court are as follows:
Sl. Description of As per the case of As per the Findings of the No. Assets Prosecution contention of Court accused
1. Site No. 670/H, Asset of the Asset of the Asset of the Judicial Block, accused and accused and accused and Yelahanka purchased for purchased for purchased for Rs.61,598-00 Rs.61,598-00 Rs.61,598-00
2. 02 guntas of land Asset of the Not an Asset of Asset of the in Sy.No.27/3 of accused and the accused accused and Mudanahalli purchased for purchased for village Rs.8,000-00 Rs.8,000-00
3. House constructed Asset of the Not an Asset of Not an asset of in Sy.No.82 of accused and the accused as it the accused as it 51 SPL.C.C.79/2011 Mudanahalli construction cost is was constructed was no village Rs.4,00,000-00 by his father constructed by the accused during check period
4. Site No.309 of Asset of the Not an asset of the Asset of the Talaghattapura accused and accused accused and village purchased for purchased for Rs.9,60,000-00 Rs.7,26,000-00
5. 10 guntas of land Asset of accused Not an asset of the Asset of accused in Sy.No.155 of and purchased for accused and purchased Natanahalli village Rs.20,000-00 for Rs.20,000-00
6. 17 guntas of land Asset of accused Not an asset of the Asset of accused in Sy.No.155 of and purchased for accused and purchased Natanahalli village Rs.42,000-00 for Rs.42,000-00
7. Balance amount of Asset of accused- Asset of accused- Asset of Rs.785-00 in Rs.785-00 Rs.785-00 accused- & its Karnataka Bank value-Rs.785-00 account of accused
8. Balance amount of Asset of accused- Asset of accused- Asset of accused Rs.488-00 in Rs.488-00 Rs.488-00 & its value-
Karnataka Bank Rs.488-00
account of
accused
9. Shares in Kalidasa Asset of accused Asset of the Asset of the
Co-operative and value of Shares accused and value accused & value
Society Ltd., is Rs.2,000-00 of Shares is of Shares is
K.R.Pet Rs.2,000-00 Rs.2,000-00
10. Two wheeler Asset of Accused- Asset of Accused- Asset of the
vehicle bearing Rs.3,000-00 Rs.3,000-00 Accused & its
Reg.No.KA-05- value is
W-9454 Rs.3,000-00
11. Pulsar vehicle Asset of Accused- Asset of the Asset of the
bearing Rs.52,222-00 Accused- Accused is
Reg.No.KA-02- Rs.52,222-00 Rs.52,222-00
ER-4217
12. Household articles Asset of Accused- Not the assets of Not an assets of found in the Rs.1,63,513-00 accused the accused House No.81/2, Bengaluru
13. Household articles Asset of Accused- Not the assets of Not proved found in the Rs.27,050-00 accused House situated at Mudanahalli 52 SPL.C.C.79/2011 village
14. Deposit made Asset of Accused- Not an asset of the Asset of the towards electricity Rs.130-00 accused accused & its connection to the value is Rs.130- house at 00
Mudanahalli village Total Rs.17,40,786-00 Rs.1,20,093-00 Rs.9,16,223-00 B). EXPENDITURE OF THE ACCUSED & HIS FAMILY MEMBERS DURING CHECK PERIOD
37. Coming to the assessment of expenditure of the accused and his family members during the check period, the investigating officer has considered the expenditure of the accused and his family members under 32 heads at Rs.24,37,251/-, but the accused has admitted only 4 heads of expenditures at Rs.4,00,882-00. The heads of expenditure considered by the prosecution and admitted and disputed by the accused are described in the table given below:-
Expenditure as Expenditure as per
Sl. Description of expenditure per the the accused
No. prosecution
1. Stamp duty & Registration fee to Rs. 9,840-00 Rs.9,840-00
purchase of a site No.670/H in
Judicial Layout
2. Stamp duty and Registration fee to Rs. 1,015-00 0
purchase 2 guntas of land in
Sy.No.27/3 in Mudanahalli village
3. Payment made towards mortgage Rs. 75,985-00 0
of 2 acres of land in Sy.No.
82A/P2 of Mudanahalli village
4. Stamp duty and Registration fee to Rs. 2,165-00 0
purchase 10 guntas of land in
Sy.No.155 of Natanahalli village
53
SPL.C.C.79/2011
5. Stamp duty and Registration fee Rs. 4,625-00 0
for registration of 17 guntas of
land in Sy.No.155 of Natanahalli
village
6. Electricity bill paid by the accused Rs. 401-00 0
for Mudanahalli house
7. Electricity bill paid by the accused Rs. 11,312-00 0
for house No.81/2
8. Electricity bill paid by the accused Rs. 14,864-00 Rs. 14,864-00
for PWD Quarters, Rajajinagar
9. Electricity bill paid by the accused Rs. 9,000-00 0
for rented house No.12.
10. Electricity bill paid by the accused Rs. 3,600-00 0
for rented house No.12/2.1
11. Electricity bill paid by the accused Rs. 24,931-00 0
for rented house
12. Fuel expenses for the vehicle Rs. 52,530-00 Rs.20,000-00
bearing No.KA-05-W 9454
13. Amount spent for maintenance of Rs. 6,000-00 Rs.4,000-00
vehicle bearing No.KA-05-W 9454
14. Tax paid towards insurance of Rs. 2,625-00 Rs. 2,625-00
vehicle bearing No.KA-05-W 9454
15. Tax paid towards vehicle bearing Rs.2,750-00 Rs.2,750-00
No.KA-02-EJAR-4217
16. Interest amount paid for the loan Rs. 47,950-00 0
taken from The Subordinate Court
Employees' Credit Co-operative
Society Limited
17. Expenses incurred towards food & Rs. 7,74,904-00 Rs.3,40,000-00
non-food items
18. Amount spent towards rearing of Rs. 17,400-00 0
dogs
19. Expenses towards education of Rs. 6,803-00 Rs. 6,803-00
daughter of accused by name
Shilpa
20. Expenses which cannot be Rs. 8,50,000-00 0
ascertained
21. Rent amount paid towards house Rs.700-00 0
No.12/2, Vinayakanagar, Wilson
Garden, Bengaluru
54
SPL.C.C.79/2011
22. Rent paid towards house No.25/1, Rs. 45,000-00 0
Sudhamnagar during the yer 1998-
2002
23. Rent paid towards house No.12/2, Rs. 25,200-00 0
Vinayaka Nagar, Wilson Garden
24. Rent paid for house No.12 of Rs. 21,600-00 0
Wilson Garden
25. Rent paid from 23.01.2007 to Rs.1,98,000-00 0
01.05.2009 for house No.81/2,
Magadi road paid by wife of
accused
26. Rent paid from 01.01.2002 to Rs. 90,000-00 0
22.01.2007 for house No.81/2,
Magadi road paid by wife of
accused
27. Purchase value of watch as per Rs. 2,695-00 0
Invoice
28. Purchase value of household Rs. 4,150-00 0
articles from Giriyas Investment(P)
Ltd., Rajajinagar
29. Electric item purchased from Rs. 3,100-00 0
Maruti Auto Electrical, Rajajinagar
30. Bill amount of Moodanahalli Milk Rs. 106-00 0
Producers' Co-operative Society
paid by wife of accused
31. Amount paid to Smt.Siddamma Rs. 3,000-00 0
Rudrappa Choultry regarding
marriage of daughter of accused
32. Purchase value of Maruti Esteem Rs.1,25,000-00 0
Car bearing Reg.No.KA-03-N-
4965
Total Rs.24,37,298-00 Rs.4,00,882-00
38. The prosecution has considered the expenditure of accused and his family members under 32 heads as mentioned in the above mentioned table. Out of 32 heads, the accused had admitted 5 heads of expenditure and remaining heads have been disputed. Therefore, now, I 55 SPL.C.C.79/2011 would like to take up only 27 heads of expenditure for discussion, which have been disputed by the accused.
a). Stamp Duty and Registration Fee paid for registration of site No. 670/H, Judicial Layout, Yelahanka:-
i). On the basis of Ex.P-52(b), the investigating officer has considered stamp duty and registration fee of Rs.9,840/-
towards expenses of the accused. Accused has admitted that he has paid Rs.9,840/- to get registered the site No. 670/H. Hence, without much discussion, Rs.9,840/- is taken towards expenses of accused.
b). Stamp Duty and Registration Fee paid for registration of 2 guntas of land in Sy.No. 27/3.
i). On the basis of a certified copy of the sale deed, which is in Ex.P-16, the investigating officer has taken Rs.1,015-00, which was paid for Registration and stamp duty, towards expenses of the accused. The learned counsel for the accused has argued that this property was purchased by wife of the accused and she had paid registration cost out of the amount given by her parents and also from her agricultural income. The learned counsel for the accused has also argued that this fact has been established in the defence evidence, hence, this amount cannot be considered as expenses of the accused. As discussed earlier, there is no evidence on record to show that parents of wife of the accused have paid consideration amount 56 SPL.C.C.79/2011 and stamp duty and also Registration fee as contended by the accused. Further, while discussing about purchase of land in Sy.No. 27/3 under the head 'asset' of the accused, this court has already concluded that the accused had purchased this property in the name of his wife. When the accused has got registered the property in the name of his wife by paying consideration amount, the accused had to pay the stamp duty and registration fee for registration of this property. A perusal of Ex.P-16 makes it clear that stamp duty of Rs.680-00 and registration fee and other miscellaneous charges of Rs.335-00 was paid for registration of the property. The learned counsel for the accused has argued that the investigating officer has not considered agriculture income of wife of the accused and same has to be considered towards income of the accused. Even if the contention of the accused that his wife had paid the Registration Fee and Stamp duty out of her own income is taken into consideration, an amount of Rs.1015-00 paid towards stamp duty and Registration fee shall be considered towards expenditure of the accused, because to hold that a property is an asset of an accused, it is sufficient if accused or any person on behalf of accused is in possession of the asset during the check period. Therefore, Rs. 1,015-00 is considered as expenses of the accused.
c). Payment of mortgage money of Rs. 75,000-00, stamp duty and registration fee of Rs. 985-00 towards registration of mortgage deed.
57SPL.C.C.79/2011
i). On the basis of Ex.P-59, the investigating officer has taken Rs.75,985-00 towards expenditure of the accused. Ex.P-59 is a certified copy of the registered mortgage deed. A perusal of this document states that one Javaregowda had mortgaged 02 acres of land in Sy.No.82/Ap2 of Mudanahalli village in favour of wife of the accused for Rs. 75,000-00. The accused has not disputed execution of mortgage deed in favour of his wife by one Javaregowda for Rs. 75,000-00 and payment of Rs. 985-00 towards stamp duty and registration charges by his wife. In fact, the cross-examination portion of PW-16 shows that the accused is claiming income said to be accrued in this mortgaged property, thereby the accused has admitted mortgaging of the property in favour of his wife. At para No.170 of his further chief examination, PW-16 has deposed that wife of the accused had taken 2 acres of land in Sy.No. 82/Ap2 from one Siddegowda, hence, mortgage money of Rs. 75,000-00 and registration fee of Rs. 985-00 was taken towards expenses of the accused. The learned counsel for the accused has not cross examined PW-16 regarding Ex.P-59, thereby the accused has accepted case of the prosecution that wife of the accused has got mortgaged 2 acres of land for Rs. 75,000-00 and got registered mortgage deed by paying Registration fee and Stamp duty of Rs. 985-
00. But, nowhere the accused or his wife have deposed that said mortgage was redeemed and received mortgage amount 58 SPL.C.C.79/2011 of Rs.75,000-00 from mortgagor. The contents of Ex.P-59 state that mortgagor had agreed to pay interest at the rate of 2% per month on the mortgage amount. But, investigating officer has not taken interest said to be paid by the mortgagor and accused also not contended that his wife had received interest from mortgagor.
ii). The learned counsel for the accused has argued that defence evidence has established that wife of the accused had paid the mortgage amount, which was given by her parents and out of her income from agriculture properties. The contention of the accused shows that parents of wife of the accused have paid consideration amount for purchase of a site and 3 agricultural properties by his wife. It is to be noted that wife of the accused had purchased 2 guntas of agricultural land in Sy.No. 27/3 on 15.09.2008, 17 guntas of agricultural land in Sy.No. 155 on 31.01.2008 and 10 guntas of land in Sy.No. 155 on 21.04.2007. But, the accused has not shown when and how parents of his wife have made payment to purchase the properties in the name of his wife. If really his wife had borrowed loan from his mother to purchase those properties and also to get the property on lease/mortgage, he should have intimated the same to his higher authority in his annual statements of assets and liabilities. The accused has also not attempted to examine either the mother or father of his wife to substantiate that they 59 SPL.C.C.79/2011 had paid consideration amount to purchase the properties and to get the mortgage registered. DW-5, who is the wife of accused has deposed that a site in Talaghattapura was in her name, to purchase that property her parents have paid the amount. It shows that wife of the accused has stated that her parents have paid consideration amount only to purchase site in Talaghattapura village. But, the learned counsel for the accused has argued that her parents have paid consideration amount to purchase a site and 3 agircultural properties. Except the statement that her parents financially helped to purchase a site in Talaghattapura village, wife of accused has not deposed how much consideration amount was paid, when and how the consideration amount was paid by their parents. After careful perusal of oral and documentary evidence on record, I came to know that except the arguments of the learned counsel for the accused, there is no either oral or documentary evidence to show that parents of DW-5 have financially helped wife of the accused to get mortgage this property.
iii). In her chief examination, DW-5 has deposed that out of crops growing in her properties she was getting income of Rs. 3,50,000/- per annum. Even if it is believe that wife of the accused had got registered the mortgage by paying mortgage money of Rs.75,000-00, she should have paid Registration fee and stamp duty. In the absence of evidence 60 SPL.C.C.79/2011 as to payment of mortgage amount by her mother, I hold that the mortgage money and Registration and Stamp duty was paid by wife of the accused. Accordingly, I have considered mortgage money of Rs. 75,000-00 and registration and stamp duty of Rs.985-00 towards expenses of the accused.
d). Stamp Duty and Registration Fee paid towards purchase of a site No. 309 of Thalaghattapura village:-
i). Case of the Prosecution that accused has purchased site No. 309 in the name of his wife has been partly disputed by the accused. Accused has admitted that site No. 309 was purchased by his wife under a sale deed, which is marked as Ex.P-43(b), but he has disputed the contention of the prosecution that said site was purchased by him in the name of his wife. Defences of the accused are that his wife had purchased the site out of her own independent income as she was doing stamp vending business, she was having agricultural income and her parents had also paid consideration amount to purchase this site. But as discussed under the head of 'assets of the accused', this court has already held that the accused had purchased this site in the name of his wife. But it is pertinent to note that though the consideration amount was paid during the check period, the sale deed was got registered after the check period. Therefore, the stamp duty and registration fee paid 61 SPL.C.C.79/2011 for registration of this site is not considered as expenditure of the accused.
e). Stamp Duty and Registration Fee paid towards registration of 10 guntas of land and 17 guntas of land in Sy. No. 155:
i). As discussed under the head of 'assets of the accused', this court has already held that wife of the accused has purchased these two properties by paying consideration amount. The certified copy of the sale deed dated 31.01.2008 which is in Ex.P-48 proved that stamp duty and registration fee of Rs.4,625-00 was paid to get registered 17 guntas of land in Sy.No. 155 and certified copy of the sale deed dated 21.04.2007 which is in Ex.P-49 proved that stamp duty and registration fee of Rs. 2,165-00 was paid to registered 10 guntas of land in Sy.No. 155. Therefore, I considered Rs.4,625/- and Rs.2,165/- as expenses of the accused and his family members.
f). Electricity bill of Rs.401/- paid for electricity charges to the house of Mudanahalli village:
i). Case of the prosecution is that as the accused had paid Rs.401-00 towards electricity charges to the house of Mudanahalli village, same is considered towards expenses of the accused. In his chief examination, PW-16 has deposed that he has considered electricity charges paid by the accused for the house of Mudanahalli village as 62 SPL.C.C.79/2011 expenses of the accused. But, the learned counsel for the accused has argued that house of Mudanahalli village belonged to mother of the accused, she was residing in the house, hence, mother of the accused had paid electricity charges. It was the suggestion of the learned counsel for the accused to PW-16 that the house in Sy.No. 82 is in the name of mother of accused. But the learned counsel for the accused has not specifically suggested PW-16 that neither the accused nor his wife had paid electricity charges of Rs.401-00. Admittedly, electricity connection to the house of Mudanahalli village is in the name of wife of the accused. In this regard Prosecution has got marked Ex.P-
40, which has not been disputed by the accused. The details of electricity charges annexed to Ex.P-40 state that from October 2008 to May 2009 a sum of Rs. 401-00 was paid towards electricity charges. As stated above, electricity connection is in the name of wife of accused. Further, when the Investigating Officer went to the house at Sy.No. 82 for search, wife of the accused, his children and mother were residing in the said house, which shows that family of the accused residing in the said house. Hence, electricity charges of Rs. 401-00 is considered towards expenses of the accused and his family.
g). Electricity charges of Rs.11,312 paid towards the house No.81/2 63 SPL.C.C.79/2011
i). Case of the Prosecution is that accused was a tenant in House No. 81/2 from 01.01.2002 to 22.01.2007 under father of DW-3 and he was also a tenant in the same house from 23.01.2007 to 01.05.2009 under DW-3 and paid electricity charges of Rs. 11,312-00. The Learned Public Prosecutor has argued that as the accused had paid electricity charges for that house, same has to be considered as expenses of the accused. The Learned counsel for the accused has argued that the accused has established that daughter of the accused along with her husband used to reside in the said house on rent and they were paying electricity bill, the accused had no role in payment of electricity charges and Prosecution has failed to prove the same.
ii). At para No.18 of his chief examination, PW-16 has deposed that he has received a letter from BESCOM towards electricity expenses borne by the accused when he was staying at Basaveshwaranagar, as per the said letter accused had paid electricity charges of Rs. 11,312-00, hence, same is taken as expenditure of the accused. On the basis of copy of the rent agreement and statement given by owner of the house, investigating officer has considered rent of Rs.98,000-00, advance amount of Rs. 1,00,000-00 and electricity charges of Rs. 11,312-00 towards expenses of the accused. The Learned Public Prosecutor has argued that the accused was a tenant under one Prasanna Kumar in House No. 81/2 from 23.01.2007 to 01.05.2009 and making 64 SPL.C.C.79/2011 payment of rent Rs. 98,000/- and advance amount of Rs. 1,00,000/- this fact is proved by Ex.P-51. On the other hand the learned counsel for the accused has argued that daughter and son-in-law of the accused had taken said house on rent and this fact has been proved by the evidence of DW-3, the Prosecution has not established that wife of the accused or the accused had paid rent and advance amount to that house.
iii). The accused has seriously disputed the case of the Prosecution that accused was a tenant and he had paid rent and electricity charges to that house in House No. 81/2. The copy of rent agreement which is marked as Ex.P-51, which is dated 23.01.2007 was only for 11 months. Contents of this document state that it was between wife of the accused and the land lord. As per the evidence of DW- 2, she was paying rent to that house. DW-2, has deposed that as she was newly married it was difficult to get a rented house, the land lord told her to bring elderly person to make agreement, hence her mother has executed the rent agreement. DW-3 who was the land lord of the said house has deposed in the line of DW-2. DW-3 has also deposed that one Hemanth who was the son-in-law of the accused was paying rent.
iv). The learned Public Prosecutor has asked DW-2 and DW-3 about terms and conditions of the rent agreement 65 SPL.C.C.79/2011 which says about sub-lease, payment of rent etc., Off course, entire rent agreement and its terms and conditions bind the landlord and wife of the accused. Further as argued by the learned public prosecutor, there is no mention in the agreement that daughter of the accused or son-in-law of the accused had to pay the rent. But it is pertinent to note that as per the evidence of PW-11 and PW-14, investigating officer first went to the House No. 81/2 along with search warrant, as said house was locked, they went to Government Quarters in Rajajinagar where daughter of the accused and her husband were there, then they returned to House No. 81/2 along with daughter of the accused, opened the door and conducted search. In his cross-examination, PW-14 has specifically admitted the suggestions of the learned counsel for the accused that key of house No.81/2 was with daughter and son-in-law of the accused, he came to know that accused had occupied government quarters. It shows that the accused was residing in Government Quarters at Rajajinagar. When the accused was allotted with government quarters, there was no need for him to take a house on rent as contended by the Prosecution. Even if the accused or his wife had taken the House No. 81/2 on rent for his daughter, the Prosecution had to establish that either the accused or his wife was paying rent. Only on the copy of rent agreement, that too of the year 2007 which was only for 11 months, it 66 SPL.C.C.79/2011 cannot be said that accused was residing in a rented house though he was allotted Government Quarters.
v). Further, DW-2 has given satisfactory explanation for executing a rent agreement by his wife. PW-14 has also admitted that he has not verified as to in whose name gas cylinders found in that house No. 81/2. Apart from this investigating officer has not taken strain to examine neighboring persons to get confirmation as to who was really residing in House No. 81/2. Interestingly, though the Prosecution has got marked copy of the rent agreement, PW-14 has not stated where it was seized. Even in Ex.P- 19 (mahazar), PW-14 has not stated where copy of the rent agreement was seized. Thus, the evidence on record is too insufficient to hold that the accused was residing in House No. 81/2 as a tenant and making payment of rent. Even the circumstances also not supports the case of the Prosecution in this regard. Therefore, contention of the Prosecution that accused had paid electricity charges of Rs.11,312-00 to the House No. 81/2 is hereby rejected.
h). Electricity charges of Rs.14,864/- paid towards P.W.D., Quarters, Rajajinagar:
i). The investigating officer has considered Rs. 14,864-
00 towards expenditure of the accused for the reason that the accused had paid said amount towards electricity bill for P.W.D., Quarters, Rajajinagar, where the accused was 67 SPL.C.C.79/2011 residing. The accused has admitted payment of electricity charges of Rs.14,864-00 towards electricity bill. Hence, an amount of Rs. 14,864-00 is considered as expenses of the accused.
i). Electricity charges of Rs.9,000/- towards a rented house situated at Vinayakanagara:
i). The investigating officer has submitted that the accused had taken a rented house in Vinayakanagar, Bengaluru from its owner by name Sri. Somashekar from 1995 to 1998 and paid Rs. 9,000/- towards electricity charges. But, the learned counsel for the accused has argued that accused did not pay electricity charges, entire electricity bill was paid by his mother-in-law, evidence of PW-7 clearly proved that mother-in-law of the accused had directly paid rent and electricity charges. At para No.173 of his evidence, PW-16 has deposed that the accused was in a rented house which belonged to one Somashekar, he had paid electricity charges of Rs. 9,000/-, hence, same is considered towards expenditure of the accused.
ii). In this regard the Prosecution has also got examined owner of the house as PW-7 and his statement is marked as Ex.P-10. As per Ex.P-10 the accused was in a rented house for three years, he had paid Rs. 20,000-00 as an advance amount and was paying rent of Rs. 700-00 per month, total rent paid by him was Rs. 25,200-00, as there 68 SPL.C.C.79/2011 was a single electric meter, owner of the house was paying electricity charges and recovering Rs. 250-00 per month from the accused towards electricity charges and total electricity charges paid by the accused was Rs.9,000/-. But in his evidence, PW-7 has not admitted contents of Ex.P-
10 and he has admitted that accused was a tenant in his house for about 5 to 6 years and paying rent of Rs.2,500- 00 per month. In the cross-examination, PW-7 has stated that he has not produced the rent agreement and he has torn it. In his chief examination, PW-7 further deposed that the accused had paid advance amount of Rs.50,000-
00. But it is not the case of the prosecution that the accused had paid advance amount of Rs.50,000-00 to the owner of the house. In his cross examination, PW-7 has admitted the suggestion of the learned counsel for the accused that mother-in-law of the accused had taken the house on rent for occupation of her daughter and she was paying rent and electricity charges.
iii). Admittedly, the accused was in a rented house from 1995 to 1998, which belonged to PW-7. As aforesaid, the learned counsel for the accused suggested that PW-7 has not produced agreement said to be entered into between the accused and PW-7. But the accused has also not produced rental agreement to show that mother-in- law of accused had taken the house on rent for her 69 SPL.C.C.79/2011 daughter and son-in-law. When the prosecution successfully proved that the accused was residing in the house of PW-7 as a tenant, the burden was definitely on the accused to prove that he was not paying rent, but his mother-in-law was paying it. It is not the contention of the accused that his mother-in-law was also residing with his family in the said rented house. Further, though the accused and his wife have stepped into the witness box, neither of them deposed before the court that mother-in- law of the accused was paying the rent. When the accused was a Government Employee and mother-in-law of the accused was not residing in that house, argument of the learned counsel for the accused that mother-in-law of the accused had taken the house on rent and she was paying electricity charges and rent cannot be believed. If the accused / DW1 or his wife /DW-5 had deposed that mother-in-law of the accused was paying rent, then it would have been considered for discussion, but only on the basis of the argument of the learned counsel for the accused and in the absence any amount of evidence, I decline to accept the argument in this regard.
iv). It is pertinent to note that the learned counsel for the accused has also suggested PW-7 that mother-in-law of the accused was paying rent and electricity charges. It shows that PW-7 was collecting electricity charges. In view the admission of the accused that he was in a rented house 70 SPL.C.C.79/2011 from 1995 to 1998, which belonged to PW-7, it can be safely presume that the accused was paying electricity charges of the rented house. Case of the prosecution is that accused was paying electricity charges of Rs.250-00 per month. The accused has not disputed amount of electricity charges, but learned counsel for the accused has contended that mother-in-law of the accused was paying it. In the statement recorded under Section 161 of Cr.P.C., it is mentioned that Rs. 250-00 per month was collecting towards electricity charges. Admittedly accused was residing in that house as a tenant from 1995 to 1998. Therefore, accepting case of the Prosecution, I considered electricity bill of Rs. 9,000/- towards expenditure of the accused.
j). Electricity bill of Rs.3,600/- paid to a rented house No. 12/2, which belonged to Smt. Muniyamma:
i). The Prosecution has contended that while accused was a tenant under one Smt. Muniyamma in House No. 12/2, during 1993 to 1995, he had paid electricity charges of Rs.
3,600-00. In his evidence also PW-16 has reiterated it. But the accused has contended that he was not a tenant under Smt. Muniyamma at any point of time. Therefore, the burden was on the Prosecution to prove that the accused was a tenant in the said house and had paid electricity charges of Rs. 3,600/-. PW-16 has deposed that he has recorded the statement of landlord regarding the 71 SPL.C.C.79/2011 tenancy of the accused under Smt. Muniyamma. But except oral evidence of PW-16, there is no evidence on record to prove that accused was a tenant under Smt. Muniyamma from 1993 to 1995. Further, the Prosecution has also failed to examine said Smt. Muniyamma to prove its contention. Therefore, I decline to consider Rs.3,600- 00 towards expenditure of the accused.
k). Electricity Bill of Rs. 24,931/- paid for the rented house which was owned by one Chandrashekar:
i). The Prosecution has considered Rs.24,931-00 towards electricity bill said to be paid by the accused while he was a tenant in the house of one Sri. Chandrashekar. In order to prove its case the Prosecution has examined one Sri. Chandrashekar as PW-8. As per his evidence, his father had rented out his house, but he did not know who was the tenant. In his cross-examination, PW-8 has denied suggestions of the learned special Public Prosecutor that in this regard he has given statement before Lokayukta Police and also that the tenants were dividing water and electricity charges. PW-8 deposed that he has not stated before Lokayukta Police stating that accused might have paid rent of Rs.45,000-00 and given deposit of Rs.40,000/-
to Rs.50,000/-. At para No. 12 of his chief examination, PW-16 has deposed about recording of statement of PW-8 regarding rent and electricity charges said to be paid by the accused and also relationship of landlord and tenant 72 SPL.C.C.79/2011 between PW-8 and the accused. But as aforesaid, PW-8 has denied to have given statement before the Police. PW- 16 has also got marked a document which was issued by Assistant Executive Engineer, BESCOM, which gives details about consumption of electricity and amount paid during 2000-2001 in respect of RR No. S2EH16575. But this document is silent regarding ownership of RR No. S2EH16575. Further, this document is also not helpful for the Prosecution to prove that the accused was a tenant in the house which was having RR No. S2EH16575. When there is no evidence that the accused was a tenant in the house of said Chandrashekar / PW-8, question of payment of electricity charges by the accused does not arise. Hence, I decline to accept case of the Prosecution that the accused had paid electricity charges of Rs. 24,931-00.
l). Petrol cost of Rs. 52,530-00, repair cost of Rs. 6,000-00 and Registration fee of Rs.2625-00 in respect of a Scooter bearing Reg.No. KA:05-W:9454:
i). In the charge sheet, the Investigating officer submitted that Scooter bearing Reg.No. KA:05-W:9454 was purchased by the accused in the year 1997 and it traveled 46,743 kms., on that basis R.T.O., has assessed that Rs.52,530-00 was spent towards petrol cost. On the basis of report of R.T.O., the Investigating officer has also considered Rs.6,000-00 for repair cost of the vehicle and Rs. 2,625-00 towards tax paid for registration of the said 73 SPL.C.C.79/2011 vehicle. Accused has admitted that he has paid Rs. 2,625-
00 towards road tax, but he has contended that he has spent Rs. 10,000/- towards petrol and Rs. 4,000/- towards repair of the vehicle.
ii). Now the question is whether Prosecution has proved that accused had spent Rs.52,530-00 towards petrol consumption and Rs. 6,000-00 towards its repair. At para No.8 of his chief-examination, PW-16 has deposed that he has received a letter from R.T.O., Jayanagar, Bengaluru with regard to expenses incurred towards maintenance of the vehicle No. KA:05-W:9454. PW-16 has also got marked the document as Ex.P-34. At para No.145 of his cross examination, PW-16 has denied the suggestion of the learned counsel for the accused regarding the amount said to be spent by the accused towards fuel consumption and maintenance of the vehicle.
iii). Except oral evidence of PW-16 and marking of Ex.P-34, there is no evidence on record how petrol cost of Rs.52,530-00 was calculated. There is no evidence whether R.T.O., has taken petrol price on year-wise or month wise from the year 1997. If R.T.O., has taken petrol price on the date of issuance of Ex.P-34, injustice would be caused to the accused as petrol price changes on month- wise and some times its prices changes daily basis. Along 74 SPL.C.C.79/2011 with Ex.P-34, R.T.O., has also given a letter, wherein he has stated that he has taken average price of the petrol from the year 1997 and that approximate repair expenses of the vehicle is Rs. 6,000-00. But there is no basis for this assessment. If the Prosecution got examined the officer who has issued Ex.P-34, it could have proved the contents of the document. In the absence of evidence of the officer who has issued Ex.P-34 and without giving an opportunity to the accused to cross-examine the author of the document, only on the basis of the document, contention of the Prosecution cannot be accepted. But as the accused himself has admitted that he has spent Rs.10,000-00 towards petrol consumption, Rs.4,000-00 towards expenses of its repair and Rs.2,625-00 towards road tax, I have accepted the same.
m). Tax of Rs. 2,750/- paid towards registration of Bajaj Pulsar vehicle No. KA:02-EZ:4217:
i). The Prosecution has contended that accused had paid Rs.2,750-00 towards registration of the vehicle bearing Reg. No. KA:02-EZ:4217. Accused has admitted the payment of road tax of Rs.2,750-00 towards the vehicle bearing No. KA:02-EZ:4217. Hence, I accepted and consider the tax of Rs.2750-00 towards expenditure of the accused.75
SPL.C.C.79/2011
n). Interest amount of Rs.47,950/- paid towards loan borrowed from Sub-Ordinate Courts Employees Credit Co- Operative Society Limited:
i). The Prosecution has further contended that the accused had borrowed loan from the Sub-Ordinate Courts Employees' Credit Co-Operative Society Limited and for that loan he had paid interest of Rs. 47,950/-, hence same has to be considered towards expenditure of the accused.
The Learned Public Prosecutor has argued that the account statement proved that the accused had paid Rs.47,950-00 towards the interest on loan borrowed by him. The Learned counsel for the accused has argued that the amount of Rs.47,950-00 is the loan borrowed by the accused, same has to be considered as income, but the Prosecution has considered it as an expenditure. He further argued that the interest amount was directly deducted from the salary of the accused, but the Prosecution has wrongly taken this amount towards expenditure to implicate the accused.
ii). Though the learned counsel for the accused has argued that amount of Rs.47,950-00 is not the interest amount, but it is a loan amount borrowed by the accused hence same has to be considered as income, there is no iota of evidence on record to hold that the accused had borrowed loan of Rs.47,950-00. Except oral argument, neither the accused nor his wife have deposed anything about loan of Rs.47,950-00. At para No. 178 of his chief 76 SPL.C.C.79/2011 examination, PW-16 has deposed that the accused had paid sum of Rs. 47,950-00 to the credit Co-Operative Society towards the interest on loan, hence he has taken this amount towards expenditure of the accused. Admittedly, the accused had borrowed loan from Sub-Ordinate Courts Employees' Credit Co-Operative Society Limited and repaid the same with interest. But it is pertinent to note that the salary extract of the accused, which is marked as Ex.P-27 states that towards the Society, some amount was deducting from the salary of the accused on monthly basis. This statement has also shows that the loan amount was deducted directly from the salary of the accused. Generally, E.M.I. with interest would be deducted from salary. Further, while considering salary income of the accused, investigating officer has considered net salary of the accused. If gross salary is considered as income, then E.M.I., and interest which would be deducted from salary could be considered as expenditure. When net salary is considered as income and the salary particulars show that the amount was directly deducting from the salary to make payment to the Society, if this court once again consider E.M.I., and interest towards expenditure of the accused, it amounts to calculation of interest twice. Further, there is no any documentary evidence on record to prove that the accused had paid Rs.47,950-00 as interest to the loan.
77SPL.C.C.79/2011 Hence, I decline to consider Rs.47,950-00 towards expenditure of the accused.
o). Expenses towards rearing of two dogs:
i). The Investigating officer has stated in the charge sheet that the accused had two dogs, one was Doberman and another was Pomeranian in his house at Mudanahalli village and as per the report of Assistant Director of Animal Husbandry, the accused spent Rs.17,400-00 towards rearing of dogs. To substantiate the contention of prosecution, it has placed reliance on the evidence of PW-2 and Ex.P-3. In Ex.P-14, which is not disputed by the accused except the value of items, it is specifically mentioned that at the time of search, they found one Doberman dog and one Pomeranian dog. As per the evidence PW-2, by considering breed of the dogs he has generally valued the expenditure. In his cross-
examination, PW-2 has admitted that he has assessed the expenses considering the breed of dogs and he has not mentioned the basis on which the expenses has been assessed. PW-2 has admitted the suggestion of the learned counsel for the accused that the dogs could be reared with left over food. Evidence of expert is not a substantial piece of evidence, if evidence of expert is satisfy the court, then his evidence could be relied on. But, admittedly the dogs were of Doberman and Pomeranian breed therefore, I am 78 SPL.C.C.79/2011 of the opinion that those dogs could not be reared using remaining food of the house and they should be looked after with specific food. It is pertinent to note that, though the learned counsel for the accused has suggested PW-2 that those dogs could be reared using remaining food in the house, he further suggested that the PW-2 shown excess amount as expenses in Ex.P-3. This shows that the accused spent some amount for rearing of dogs. But, the accused has not stated what was the real expenses made for rearing of his dogs.
ii). Accused has not disputed that these two dogs were belonged to him and their breed was Doberman and Pomeranian. But, in her evidence, DW-4 who is the mother of the accused has deposed that she was rearing one dog and she spent much amount for its rearing. In her cross- examination, the learned Public Prosecutor has suggested that she did not spent any amount for rearing of dogs, in fact her son was rearing the dog. As aforesaid, the accused and his mother were in joint family and doing agriculture jointly. Further, the accused has prayed to add agriculture income of her mother to his income, therefore expenses made for rearing of dogs should be considered as expenditure of the accused and his family. As aforesaid, the breed of dogs was Doberman and Pomeranian, these dogs cannot be rear using remaining food in the home. Therefore, there is no fault on the part of PW-2 in 79 SPL.C.C.79/2011 assessing value of expenditure and also on the part of PW- 16 to consider the expenditure towards rearing of dogs. Admittedly, there were two dogs one was of Doberman and another one was of Pomeranian breed in the house of accused. As per the evidence of PW-2 and contents of Ex.P-3, the expenses made to rear Doberman was Rs.26,000-00 and to rear Pomeranian dog was Rs.17,400-
00. But the investigating officer (PW-16) has deposed that accused had spent Rs.17,400-00 for rearing of a dog. But PW-16 has not deposed about Doberman dog and expenses of Rs.26,000-00 for the reasons best known to him.
iii). It is not at all the case of the accused that Ex.P.-3 is a concocted report. Under such circumstances there are no reasons much less good reasons to disbelieve the data furnished in Ex.P-3. Therefore, absolutely there are no reasons to disbelieve the contention of the prosecution that the accused did spend a sum of Rs.17,400-00 towards the cost of rearing of a Pomeranian dog. Thus, though the prosecution has failed to prove expenses of Rs.26,000-00 on Doberman dog, it has successfully proved that the accused had spent Rs.17,400-00 for rearing of Pomeranian dog. Accordingly, it is held that accused did incur Rs.17,400-00 towards the cost of rearing of a Pomeranian dog during the check period.
80SPL.C.C.79/2011
p). Expenses made towards education of second daughter of accused:
i). The investigating officer has considered Rs. 6,803-00 towards expenses said to be made for education of daughter of the accused on the basis of a receipt. The accused has admitted that he had spent Rs.6,803-00 towards education of his daughter. Hence, same is considered as expenditure of accused.
q). Tax of Rs.700-00 said to be paid to BBMP, Bengaluru:
i). In the Charge-sheet, the Investigating Officer has submitted that the accused was in a rented house in the year 1991, which was owned by one Ramachandra, at that time the accused had paid Rs.700-00 to B.B.M.P. towards tax. At para No.11 of his chief examination, PW-16 has deposed that as per the statement of the landlord, in the year 1991 the accused had stayed in a rented house for ten months and paid a sum of Rs.700-00 as rent, hence he has taken that amount towards expenditure. Thus, the evidence of PW-16 is contrary to the contents of Charge sheet. In the charge sheet it is submitted that the accused had paid Rs.700-00 as tax to BBMP, but in his chief examination, he deposed that the accused had paid it as a rent. Though the averments of the Charge sheet says that on the basis of the statement of the owner of the house and tax paid receipt, the Investigating Officer has taken tax of 81 SPL.C.C.79/2011 Rs.700-00 towards expenses of the accused, the prosecution has not got examined owner of the said house.
Further, the prosecution has not produced any document to show that the accused had paid Rs.700-00 to B.B.M.P., towards tax on a rented house. In the absence of convincing evidence, I decline to consider Rs.700-00 towards expenses of the accused.
r). Rent of Rs.45,000-00 said to be paid to the owner of the House No. 25/1 of Sudhamanagar during 1998 to 2002:
i). The Prosecution has further contended that the accused and his family members were residing in a rented house from 1998 to 2002, which was owned by one Sri. Chandrashekar and paying rent of Rs. 2,000-00 to 2,500-
00. At para No.12 of his chief examination, PW-16 has deposed that he has recorded statement of Sri. Chandrashekar who was the land lord of the accused, as per his statement accused has stayed in his house from 1998 to 2002 and paid rent of Rs. 2,000-00 to 2,500-00 per month, approximate amount of rent was Rs. 45,000-00 and same has been taken towards expenditure of the accused.
ii). The prosecution is not definite about amount of rent, because it is stated that the accused was paying rent of Rs. 2,000-00 to 2,500-00 per month and approximate amount of rent was Rs. 45,000-00. The evidence of PW-8, who 82 SPL.C.C.79/2011 was the owner of the house reveals that his father who died on 08.05.2010 had rented out his house, he did not know who was the tenant. PW-8 has also turned hostile about amount of rent and also the statement said to be given by him to the Lokayukta Police. But, PW-8 deposed that Lokayukta Police called him and told that the accused was the tenant earlier. This witness has identified water supply bill and electricity bill given by him to Lokayukta Police, which are marked as Ex.P-11 and Ex.P-12. Ex.P-11 is a demand notice issued by BWSSB, Bangalore in the name of R. Krishnappa. Ex.P-12 an electricity bill which is also in the name of R. Krishnappa. Both these documents are not helpful for the prosecution as name of the accused is not mentioned in these documents. There is no evidence on record to prove that the accused was a tenant under R.Krishnappa. Thus, the prosecution has not proved that the accused was a tenant in the house of one R. Krishnappa and then under one Chandrasekhar and paid total rent of Rs.45,000-00. The learned counsel for the accused has argued that the Prosecution has not provided any material to show that amount of Rs. 45,000-00 was paid by the accused. Further, PW-16 who was the investigating officer and considered Rs.45,000-00 towards expenses of the accused has not deposed anything about this aspect. Thus as argued that the learned counsel for the accused, the Prosecution has failed to establish that accused was a 83 SPL.C.C.79/2011 tenant in House No. 25/1 of Sudhamanagar from 1998 to 2002 and paid rent of Rs. 45,000-00.
s). Rent of Rs.25,200-00 said to be paid by the accused for a rented house No. 12/2 which was owned by Smt.Muniyamma:
i). The Prosecution has contended that the accused was a tenant under one Smt. Muniyamma in House No.12/2 from 1993 to 1995 and he had paid rent of Rs.25,200-00 during that period. In his evidence also PW-16 has reiterated the same. But the accused has contended that he was not a tenant under Smt. Muniyamma at any point of time.
Therefore, the burden was on the Prosecution to prove that the accused was a tenant in the said house and had paid rent of Rs. 25,200-00. PW-16 has deposed that he has recorded statement of Smt. Muniyamma regarding the tenancy of the accused. But except oral evidence of PW- 16, there is no evidence on record to prove that accused was a tenant under Smt. Muniyamma from 1993 to 1995. The Prosecution has also failed to examine said Smt. Muniyamma to prove its contention. Therefore, I decline to consider Rs. 25,200-00 towards expenditure of the accused.
t). Rent of Rs.21,600-00 said to be paid by the accused for a rented house No.12 situated at Vinayakanagar, Wilson Garden, Bengaluru:
84SPL.C.C.79/2011
i). The prosecution has submitted that the accused had taken a rented house No.12 from its owner by name Sri Somashekar at Vinayakanagar, Wilson Garden from 1995 to 1998 and paid rent of Rs. 21,600-00. But, the learned counsel for the accused has argued that the rent was paid by mother-in-law of the accused and evidence of PW-7 clearly proved that mother-in-law of the accused had directly paid rent and electricity charges. The suggestion of the learned counsel for the accused to PW-7 and his arguments make it clear that the accused has admitted that he was residing in the house of one Sri. Somasekhar as a tenant. At para No.26 of his chief examination, PW-16 has deposed that he has recorded statement of Sri. Somashekar in whose house the accused was staying as a tenant and paid a sum of Rs. 25,200-00 as rent, hence, same is considered towards expenditure of the accused.
ii). In this regard the Prosecution has also got examined owner of the house as PW-7 and his statement is marked as Ex.P-10. As per Ex.P-10 the accused was in a rented house for three years, he had paid Rs. 20,000/- as an advance amount and was paying rent of Rs. 700/- per month, total rent paid by him was Rs. 25,200-00, as there was a single electric meter, owner of the house was paying electricity charges and recovering Rs. 250-00 per month from the accused towards electricity charges and total 85 SPL.C.C.79/2011 electricity charges paid by the accused was Rs.9,000-00. In his evidence PW-7 has not admitted the contents of Ex.P-
10, but he has admitted that the accused was a tenant in his house for about 5 to 6 years and paying rent of Rs.2,500- 00 per month. In the cross-examination, PW-7 has stated that he has not produced the rent agreement and he has torn it. In his chief examination, PW-7 further deposed that the accused had paid advance amount of Rs.50,000-
00. But the prosecution has not taken advance amount of Rs.50,000-00 towards expenses of the accused for the reason known to it. In his cross examination, PW-7 has admitted the suggestion of the learned counsel for the accused that mother-in-law of accused had taken the house on rent for occupation of her daughter and she was paying rent and electricity charges. But, it is pertinent to note that in his chief examination PW-7 has specifically deposed that the accused was a tenant in his house for 5 to 6 years and was paying rent about Rs.2,500-00 per month.
iii). Admittedly, the accused was residing in a rented house from 1995 to 1998, which belonged to PW-7. As aforesaid, the learned counsel for the accused suggested that PW-7 has not produced agreement said to be entered into between the accused and PW-7. But the accused has also not produced copy of rental agreement to show that mother-in-law of accused had taken the house on rent for 86 SPL.C.C.79/2011 her daughter and son-in-law. When the prosecution has successfully proved that the accused was a tenant in the house of PW-7 and paying rent, the burden was definitely on the accused to prove that the accused was not paying the rent, but his mother in law was paying it. It is not the contention of the accused that his mother-in-law was also residing with his family in the said rented house. Further, though the accused and his wife have stepped into the witness box, neither of them deposed before the court that mother-in-law of the accused was paying the rent. When the accused was a Government Employee and she was not residing in that house, in the argument of the learned counsel for the accused that mother-in-law of the accused had taken the house on rent and she was paying electricity charges and rent cannot be believed.
iv). As stated above, as per the chief examination of PW-7, the accused was a tenant under him for about 5 to 6 years and paying rent of Rs. 2,500-00 per month. Admittedly the accused was residing in that house as a tenant from 1995 to 1998. If chief examination of PW-7 is taken into considered the accused had paid rent of Rs. 1,80,000-00 and advance amount of Rs. 50,000-00. But, as the investigating officer has taken rent of Rs.21,600-00 only and evidence of prosecution also reveal that it has considered rent of Rs.21,600-00 only towards expenditure 87 SPL.C.C.79/2011 of the accused under the head 'rent', I have considered Rs.21,600-00 towards expenditure of the accused.
u). Rent of Rs. 1,98,000-00 said to be paid by the accused for a rented house No. 81/2 of Magadi Road, Bengaluru from 23.01.2007 to 01.05.2009 and rent of Rs. 90,000/- paid for a period from 01.01.2002 to 22.01.2007:-
i). In the charge sheet, the investigating officer has submitted that the accused was a tenant in House No. 81/2 from 01.01.2002 to 22.01.2007 under father of DW-3 and he was a tenant in the same house from 23.01.2007 to 01.05.2009 under DW-3. On the basis of copy of a rent agreement and statement said to be given by owner of the house, the investigating officer has considered rent and advance amount of Rs.1,98,000-00 for a period from 23.01.2007 to 01.05.2009 and rent of Rs.90,000-00 for period from 01.01.2002 to 22.01.2007 towards expenses of the accused. The Learned Public Prosecutor has argued that the accused was a tenant under one Prasanna Kumar in House No. 81/2 from 23.01.2007 to 01.05.2009 and making total payment of rent and advance amount Rs.
2,88,000-00 this fact is proved by Ex.P-51. On the other hand, the learned counsel for the accused has argued that daughter and son-in-law of the accused had taken said house on rent and this fact has been proved by the evidence of DW-3, the Prosecution has not established that 88 SPL.C.C.79/2011 wife of the accused or the accused had paid rent and advance amount to that house.
ii). It is pertinent to note that the accused has not disputed the copy of rent agreement which is marked a Ex.P-51. A perusal of chief examination and cross examination of PW-11 and PW-14 makes it clear that the accused has not disputed the mahazar conducted in the house No.81/2. But the accused has disputed the case of the Prosecution that accused had paid rent and advance amount for a rented house No.81/2. The copy of rent agreement shows that it is dated 23.01.2007 and said agreement was only for 11 months. Contents of this document state that it was between the wife of the accused and the land lord. DW-2 who is the daughter of the accused has deposed that as she was newly married, the land lord told her to bring elderly person to enter into a rent agreement, hence her mother had executed the rent agreement. DW-3 who was the land lord of the said house has deposed in the line of DW-2. DW-3 has also deposed that one Hemanth who was the son-in-law of the accused was paying rent.
iii). The learned Public Prosecutor has asked DW-2 and DW-3 about terms and conditions of the rent agreement which says about sub-lease, payment of rent etc., Off course, entire rent agreement and its terms and conditions 89 SPL.C.C.79/2011 bind the landlord and wife of the accused. Further as argued by the learned public prosecutor, there is no mention in the agreement that daughter of the accused or son-in-law of the accused had to pay the rent. But it is pertinent to note that as per the evidence of PW-11 and PW-14, investigating officer first went to the House No. 81/2 along with search warrant, as said house was locked, they went to Government Quarters in Rajajinagar where daughter of the accused and her husband were there, then they returned to House No. 81/2 along with daughter of the accused, opened the door and conducted search. It shows that the accused was residing in Government Quarters at Rajajinagar. When the accused was allotted with government quarters, there was no need for him to take a house on rent as contended by the Prosecution. Even if the accused or his wife had taken the House No. 81/2 on rent for his daughter, the Prosecution had to establish the the accused or his wife was paying rent. Only on the copy of rent agreement, that too of the year 2007 which was only for 11 months, it cannot be said that accused was residing in a rented house though he was allotted Government Quarters.
iv). Further, the accused has given satisfactory explanation for executing a rent agreement by his wife. In fact, in their cross-examination, PW-11 and PW-14 have admitted that key of the house No. 81/2 was with the 90 SPL.C.C.79/2011 daughter of the accused. PW-14 has also admitted that after visit to the Government Quarters No. 13, he came to know that it was a Quarters of the accused. PW-14 has also admitted that he has not verified as to in whose name gas cylinders found in that house No. 81/2. Apart from this investigating officer has not taken strain to examine neighboring persons to get confirm as to who was really residing in House No. 81/2. Interestingly, though the Prosecution has got marked copy of rent agreement, PW- 14 has not stated where it was seized. Even in Ex.P-19 (mahazar), PW-14 has not stated where copy of rent agreement was seized. Thus, the evidence on record is too insufficient to hold that the accused was residing in House No. 81/2 as a tenant and making payment of rent. Even the circumstances also not supports the case of the Prosecution in this regard. Hence, contention of the Prosecution that accused had paid rent and advance amount of Rs.2,88,000- 00 for House No. 81/2 is hereby rejected.
v). Expenses of Rs.2,695-00 made towards purchase of a watch:
i). The investigating officer has submitted that the accused had purchased a Wrist watch from Maharaja Times, K.G. Road, Bengaluru for Rs.2,695-00 and invoice of the said purchase was seized during search, hence Rs.
2,695-00 is taken towards expenditure of the accused. The Learned counsel for the accused has argued that the receipt 91 SPL.C.C.79/2011 was seized from the house of daughter of the accused, it contains no name and there is no proof that said watch belongs to the accused. At para No.180 of his evidence, PW-16 has deposed that on the basis of a bill, he has considered Rs.2,695-00 towards expenditure of the accused.
ii). The bill said to be pertaining to purchase of a watch by the accused is not marked as exhibit as that bill had no seal of the Shop which issued it. Further, a watch said to be purchased by the accused has not been seized and it's original bill/invoice also not before the court. Thus, except oral evidence of PW-16, there is no evidence to prove that the accused had purchased a watch for Rs. 2,695-00, hence it is not considered towards expenditure of the accused.
w). Expenses of Rs.4,150-00 said to be made for purchase of household articles:
i). In the charge sheet, the investigating officer has submitted that the accused had purchased household articles in Girias Investment Private Limited for Rs.4,150-
00, in this regard a bill has been seized, therefore he has has considered Rs.4,150-00 towards expenditure of the accused. The learned counsel for the accused has argued that said bill found in the house of daughter of the accused, has no relation to the accused and Prosecution has not 92 SPL.C.C.79/2011 provided any material to prove that the accused had spent Rs. 4,150-00 to purchase household articles under the said bill. At para No.181 of his chief examination, PW-16 has deposed that during the search that bill was found and it was in the name of the accused having purchased house hold articles for Rs.4,150/-. PW-16 has got marked said bill as Ex.P-60.
ii). A perusal of Ex.P-60 tells us that there are two bills of Girias Investment Private Limitted for having purchased household articles for Rs.4,150-00 and for Rs.37,600-00. But in the charge sheet, the investigating officer has considered only a receipt of Rs.4,150-00 and he has not considered the bill of Rs.37,600-00, which is also in the name of the accused for the reason best known to him. PW-16 has not deposed anything about the bill of Rs. 37,600/-. Ex.P-60 is very clear about purchase of household articles by the accused. DW-3 has deposed that she has taken the bill in the name of her father as he was elderly person. Though the bill was seized in the house of daughter of accused, it is in the name of accused and if really daughter has purchased household articles, it should be in her name. Further, no circumstances have been shown regarding necessity for DW-3 to get the bill in the name of her father. The circumstances that the bill in the name of accused and it found in the house of the daughter 93 SPL.C.C.79/2011 of the accused shows that the accused might have purchased it for her daughter. The explanation of DW-3 that she has taken the bill in the name of elderly person ie., her father cannot be believed, because DW-3 was not a minor and no necessity to take the baill in the name of her father if she herself had paid the amount. Hence, I considered Rs.4,150-00 towards expenditure of the accused.
x). Expenses of Rs. 3,100-00 towards purchase of electrical goods:
i). The investigating officer has considered Rs.3,100-00 towards expenditure of the accused on the basis of a bill issued by Maruthi Auto Electricals. The learned counsel for the accused has argued that the bill was found in the house of daughter of the accused, name of the accused is not found in the bill, hence this amount shall not be considered towards expenditure of the accused. At para No.16 of his evidence PW-16 has deposed that Ex.P-38 was received from Maruthi Electricals, Rajajinagar, Bengaluru with regard to purchase of a battery by the accused, hence Rs.3,100-00 is taken by him towards expenditure of the accused.
ii). Ex.P-38 is a letter issued by owner of the Maruthi Auto Electricals, which says that the accused had 94 SPL.C.C.79/2011 purchased Amron Battery. But, the bill attached to the Ex.P-38 had no name of the accused or purchaser of a battery. The Prosecution has also not choosen to examine owner of the Maruthi Auto Electricals who issued Ex.P-38.
In the absence of name of the accused on the bill, I decline to accept case of the Prosecution that accused had purchased electric item for Rs. 3,100-00.
y). Amount of Rs. 106/- paid to take membership in Milk Producers' Co-Operative Society, Mudanahalli:
i). The learned Public Prosecutor has argued that Ex.P-8 proved that wife of the accused has taken membership making payment of Rs.106-00. The learned counsel for the accused has argued that receipt of membership cost has been incurred by the wife of the accused, thereby the accused has admitted that wife of the accused paid Rs.106-
00 to take membership in Mudanahalli Milk Producers' Co-Operative Society. The Prosecution has also got examined PW-6 to prove its contention, who deposed that Smt. G.V. Gayathramma wife of M.R. Rangaswamy was member of the society from 2007. In this regard PW-6 has also got marked the documents as Ex.P-7 and Ex.P-8. The accused has not disputed these two documents. Ex.P-8 coupled with the evidence of PW-6 proved that wife of the accused had paid Rs. 106-00 to take membership in Mudanahalli Milk Producers' Co-Operative Society.
95SPL.C.C.79/2011 Hence, Rs.106-00 is considered towards expenditure of the accused.
z). Payment of Rs. 3,000/- to book a Choultry for celebration of marriage of daughter of accused:
i). PW-16 has deposed about payment of Rs. 3,000-00 by the accused to book a Choultry for marriage of daughter of the accused. On the basis of Ex.P-37 the investigating officer has considered Rs.3,000/- towards expenditure of the accused. The accused has also admitted that he had paid Rs. 3,000-00 to book a Choultry during the check period. Hence, Rs.3,000-00 is considered towards expenditure of the accused.
ab). Payment of Rs.1,25,000/- made towards purchase of a Esteem Car bearig Reg.No. KA:03-N:4965
i). The prosecution has got marked a document at Ex.P-
35 to prove that wife of the accused had purchased a car for Rs.1,25,000-00. At para No.9 of his chief examination, PW-16 has deposed that he has received a letter from RTO with regard to a car bearing Reg No.K.A:03-N:4965, which stood in the name of wife of the accused. The learned counsel for the accused has argued that said car was purchased by wife of the accused paying advance amount, since the documents were not correct she did not purchased it and car was given away. He further argued 96 SPL.C.C.79/2011 that said car was in the name of Apple Computers and then in the name of K.B.Basavaiah, name of wife of the accused not appeared in any documents. He argued that the evidence of DW-1, evidence of PW-16 and Ex.P-35 proved that wife of the accused never owned the said car.
ii). In order to prove its case, the Prosecution has produced forms of application for registration of the vehicles, Form No. 21 and 'B' Register exracts which are in ExP-37. One of the copies of 'B' Register Extracts shows that a car bearing Reg.No. KA:03-N:4965 was registered in the name wife of the accused. The cross examination of PW-16 at para No. 53 shows that previously this vehicle was in the name of Apple Computers Inernational Ltd., and then in the name of one Basavaiah. But the accused has not disputed that said vehicle was registered in the name of his wife. In fact he has admitted that his wife had purchased it. But he contended that as the documents of the vehicle were not correct his wife had returned the vehicle. It is to be noted that in his Annual Property Statement submitted for the year ending 2007, dated 31.03.2008, the accused has specifically reported about purchase of an Esteem Car for Rs. 1,25,000-00 in the year 2007. Suggesstion of the learned counsel for the accused to PW-16 was that without investigation only on Annural Property Statement, the 97 SPL.C.C.79/2011 investigating officer has considered purchase value of the car towards expenditure of the accused. When the accused himself declared in his Annual Property Statement about purhase of a car for Rs. 1,25,000-00, there was no need for the further investigation to consider this amount towards expenditure of the accused.
iii). Contention of the accused is that initially his wife had purchased the car by paying advance amount, as documents of the vehicle were not correct, his wife did not purchase it. But copy of 'B' extract shows that car was registered in the name of wife of the accused and admiteddly the accused has reported to his higher authority about purchase of the car for Rs.1,25,000-00. Apart from that, there is no evidence on record to show that wife of the accused had returned the said car to its previous owner and received back the amount of Rs.1,25,000-00 which was paid to its owner. Thus, the evidence on record are sufficient to hold that wife of the accused had purchased a car from Rs.1,25,000-00. Hence, Rs.1,25,000-00 is considered as expenditure of the accused.
ac). Family expenditure of Rs.7,74,904-00:
i). The investigating Officer has considered domestic expenditure of the accused during the check period at Rs.7,74,904-00. The learned counsel for the accused has argued that the domestic expenditure considered by the 98 SPL.C.C.79/2011 investigating officer is without any proof, the accused is from agricultural background, having agricultural properties and growing crops of Ragi, Paddy, Pulses and Coconuts, therefore there was no need for the accused to purchase pulses and grains. He further argued that Ex.P-17 is prepared without using prudent statistical methods, the report is silent on the point whether the family of the accused was vegetarian or non-vegetarian. The learned counsel for the accused has further argued that salary income of the accused is considered at Rs. 7,41,064/- but domestic expenditure is taken as Rs. 7,74,904/-, which is absurd.
ii). In his written arguments, the accused has contended that his family expenditure during the check period was Rs.3,40,000-00 only. Though the accused himself is examined as DW-1, he has not even deposed that he has spent only Rs. 3,40,000/- and not Rs.7,74,904/- towards family expenditure such as food, cloth, shelter etc., On the basis of Ex.P-17, PW-16 has deposed that accused did spent Rs.7,74,904-00 towards family expenditure. At para No.89 of his cross-examination, PW-16 has stated that he has furnished salary income, agriculture income and horticulture income of the accused and his wife to prepare Ex.P-17. At para No. 92 of his cross-examination, PW-16 has admitted that there is no bifurcation in the expenditure 99 SPL.C.C.79/2011 which was incurred by the accused when he was living in rural area and urban area. PW-16 has also admitted that he has not sought any clarification from PW-12 as to how the expenditure is more than his income. Regarding domestic expenditure, the Prosecution has also got examined the Assistant Director, Statistics Directorate of Municipal Administration, Bengaluru as PW-12. PW-12 has deposed that he has prepared the report regarding invisible and non variable expenditure on food and non-food items of accused and his family members by considering year-wise income of the accused, income of his family members, general family income and expenditure survey report of 2009 of Karnataka State and also by considering all India Consumer Price Index. In his cross-examination, PW-12 has admitted that expenditure has to be calculated by considering whether the accused and his family members are vegetarian or non-vegetarian. PW-12 has also got marked Ex.P-17, which is issued by him. But, there is no averment in Ex.P-17 regarding whether PW-12 has calculated visible and variable expenditure considering the accused and his family as vegetarian or non-vegetarian.
iii). A perusal of Ex.P-17 makes it clear that PW-12 has reported that total invisible and non-verifiable expenditure of the A.G.O., and his family members during the check period for the house hold food and non-food items was Rs.7,74,904/-. The Investigating Officer has considered 100 SPL.C.C.79/2011 the domestic expenditure of the accused during the check period at Rs.7,74,904-00. The evidence of defence witnesses with regard to domestic expenditure of accused is silent. Therefore, it is clear that the contention of the learned counsel for the accused taken in his argument is not trustworthy. No doubt, in a criminal case the court is not expected to taken into consideration the weakness of the evidence of the accused. However, in the present case it is for the accused to explain the actual domestic expenditure during the check period to the satisfaction of this court. But the evidence of DW-1 does not inspire the confidence of the court that he has placed true figures before the court for its appreciation. Therefore, I placed a reliance on a decision of the Hon'ble Supreme Court reported in AIR 1964 SC 464 in the case of Sajjan Singh v/s State of Punjab. In this decision, it has been stipulated for calculation of disproportionate assets, one third of the income of the accused is to be taken into consideration while estimating domestic expenditure. It is settled position of law that one third of the income of the accused is to be taken into account for estimating household expenditure. This criteria of taking one third income as household expenditure has been consistently followed by the courts as well as investigation agencies.
The estimated income of the accused during the check period was Rs.7,92,953-00. To find out the net income of 101 SPL.C.C.79/2011 the accused, the taxes paid, expenses incurred by payment of rent, electricity charges, educational expenses and other household expenditures shall have to be deducted. The accused has incurred following domestic expenses:
(iv). Total payment of stamp duty, registration charges for registration of a site and agriculture properties-
Rs.17,645-00 (ii). total Payment Electricity bills- Rs.24,265-00, (iii). cost of petrol, repair expenses and road tax towards two wheeler vehicles-Rs.29,375-00, (iv). expenses made towards rearing of dog-Rs.17,400.00, (v). payment made towards Education of daughter fee- Rs.6,803-00, (vi). payment made towards rent-Rs.21,600- 00, (vii). payment made towards purchase of household articles-Rs.4,150-00, (viii). payment made to take membership in Milk Producers' Co-operative Society, Mudanahalli-Rs.106, (ix).Payment made to book a choultry for daughter's marriage-Rs.3000-00, total amounting Rs.1,24,324.00. Thus, total domestic expenditure is amounting to Rs.1,24,324.00. To get net income, a sum of Rs.1,24,324.00 shall have to be deducted from the gross income of Rs.7,93,133-00. If we do so, the net income comes to Rs.6,68,809-00 (Rs.7,93,133-00 - Rs.1,24,324.00). As discussed above, by virtue of the decision of the Hon'ble Apex Court in Sajjan Singh's case, there is no legal bar for adopting the principles laid down 102 SPL.C.C.79/2011 therein and to consider one third of the net income of the accused as household expenditure during the check period. One third of Rs.6,68,809-00 comes to Rs.2,22,936.33 and I round off it to Rs.2,22,936-00. As per Ex.P-61 (Charge Sheet), the Investigating Officer has considered the domestic expenditure of the accused during the check period was Rs.7,74,904-00. As per the calculation of this court, the Domestic expenditure comes to Rs.2,22,936-33. But, it must be noted that at the time of arguments by the learned counsel for the accused and also in the written arguments, the learned counsel for the accused has submitted that the family expenditure / domestic expenditure was Rs.3,40,000-00 as against the calculation of Investigating Officer ie., Rs.7,74,904-00. Since, the accused himself has submitted that his family expenditure / Domestic expenditure during the check period was Rs.3,40,000-00, I have considered domestic expenditure of the accused during the check period at Rs.3,40,000-00.
ad). Unexplained expenditure of Rs.8,50,000-00:-
i). The investigating officer has considered withdrawal of an amount of Rs.8,50,000/- from the account of accused in Karnataka Bank Ltd., K.G.Road, Bengaluru towards unexplained expenditure of the accused. The learned counsel for the accused has argued that the amount of Rs.8,50,000/- is a combination of salary and loan obtained from the society and also income of the family members 103 SPL.C.C.79/2011 out of agriculture and horticulture, but the prosecution has wrongly considered it as an unexplained expenditure. He further argued that the evidence of PW-16 proved the irregularities in considering the said amount as expenditure and the accused has clearly established the reason for incurring expenditure. He submits that the Investigating Officer has stated in his cross-examination about his unawareness and failure on his part to investigate about unexplained expenditure. The Learned counsel for the accused has further argued that the deposits and withdrawals are all in consonance and the Investigating Officer has purportedly not accounted for the same and attempted to add the same as an expenditure. He further submits that the entire withdrawals that the prosecution is referring only amounts to Rs.6,50,000-00, but the prosecution has deliberately increased the expenditure by wrongly calculating at Rs.8,50,000-00.
ii). The accused has not disputed withdrawal of Rs.8,50,000-00 from his account during the check period.
But, though the accused has stepped into the witness box and the prosecution has made specific allegation of expenditure of Rs.8,50,000/- by drawing it from his account, he has not deposed anything about this aspect. As the prosecution has contended that the withdrawal of the amount from the account of accused is his expenditure, the 104 SPL.C.C.79/2011 burden was on the prosecution to prove the same. But, except showing withdrawal of Rs.8,50,000/-, the prosecution has not substantiated that the accused has spent an amount of Rs.8,50,000/- for specific purpose. When the Investigating Officer has considered the expenses of the accused under various heads, once again withdrawal of the amount from the account of the accused cannot be considered as expenditure unless the prosecution proved that the accused had spent that amount for specific purpose. Admittedly, the investigating officer has taken Rs.7,74,904-00 towards domestic expenditure on the basis of report of PW-12, which is marked at Ex.P-17. When he has already considered domestic expenditure, again he cannot consider withdrawal of the amount from the account of accused as unexplained expenditure. If the accused had spent that amount under different heads other than the heads already considered, then the argument of the learned public prosecutor could have been accepted. In his chief-examination as well in cross-examination, PW-16 has stated that as the accused has not given any explanation, he has considered said amount towards unexplained expenditure. In his evidence PW-16 has deposed that as the accused had not given explanation for withdrawal of the amount, he considered it as unexplained expenditure. Only on the ground that the accused had not explained to the investigating officer about withdrawal of 105 SPL.C.C.79/2011 the amount, it cannot be considered as expenditure unless the prosecution has proved before the court that the accused has spent that amount for particular purpose. If the prosecution has proved its contention, then only the question whether the accused has given satisfactory explanation arises, if prosecution has not proved, question of giving explanation by the accused does not arise. Therefore, I decline to consider withdrawal of Rs.8,50,000/- towards expenditure of the accused.
39. Thus, the Expenditure of the accused as per the case of the prosecution, as per the contention of the accused and findings of this court are as follows:
Sl. Description of Expenditure as Expenditure as Expenditure as No. expenditure per the per the accused per findings of Investigating the Court.
Officer
1. Stamp duty & Rs. 9,840-00 Rs.9,840-00 Rs.9,840-00 Registration fee to purchase of a site No.670/H in Judicial Layout
2. Stamp duty and Rs. 1,015-00 0 Rs. 1,015-00 Registration fee to purchase 2 guntas of land in Sy.No.27/3 in Mudanahalli village
3. Payment made towards Rs. 75,985-00 0 Rs. 75,985-00 mortgage of 2 acres of land in Sy.No. 82A/P2 of Mudanahalli village
4. Stamp duty and Rs. 2,165-00 0 Rs.2165-00 Registration fee to purchase 10 guntas of 106 SPL.C.C.79/2011 land in Sy.No.155 of Natanahalli village
5. Stamp duty and Rs. 4,625-00 0 Rs.4,625-00 Registration fee for registration of 17 guntas of land in Sy.No.155 of Natanahalli village
6. Electricity bill paid by Rs. 401-00 0 Rs. 401-00 the accused for Mudanahalli house 7. Electricity bill paid by Rs. 11,312-00 0 0 the accused for house No.81/2
8. Electricity bill paid by Rs. 14,864-00 Rs. 14,864-00 Rs. 14,864-00 the accused for PWD Quarters, Rajajinagar
9. Electricity bill paid by Rs. 9,000-00 0 Rs. 9,000-00 the accused for rented house No.12.10. Electricity bill paid by Rs. 3,600-00 0 0
the accused for rented house No.12/2.
11. Electricity bill paid by Rs. 24,931-00 0 0the accused for rented house owned by one Sri. Chandrasekhar
12. Fuel expenses for the Rs. 52,530-00 Rs.10,000-00 Rs.10,000-00 vehicle bearing No.KA-05-W 9454
13. Amount spent for Rs. 6,000-00 Rs.4,000-00 Rs.4,000-00 maintenance of vehicle bearing No.KA-05-W 9454
14. Tax paid towards Rs. 2,625-00 Rs. 2,625-00 Rs. 2,625-00 Registration of vehicle bearing No.KA-05-W 9454 15 Tax paid towards Rs.2,750-00 Rs.2,750-00 Rs.2,750-00 vehicle bearing No.KA-02-EJAR-4217 16. Interest amount paid Rs. 47,950-00 0 0 for the loan taken from The Subordinate Court 107 SPL.C.C.79/2011 Employees' Credit Co-
operative Society
Limited
17. Domestic Expenditure Rs. 7,74,904-00 Rs.3,40,000-00 Rs.3,40,000-00.
18. Amount spent towards Rs. 17,400-00 0 Rs. 17,400-00
rearing of dogs
19. Expenses towards Rs. 6,803-00 Rs. 6,803-00 Rs. 6,803-00
education of daughter
of accused by name
Shilpa
20. Unexplained expenses Rs. 8,50,000-00 0 0
21. Rent amount paid Rs.700-00 0 0
towards house No.12/2,
Vinayakanagar, Wilson
Garden, Bengaluru
22. Rent paid towards Rs. 45,000-00 0 0
house No.25/1,
Sudhamnagar during
the yer 1998-2002
23. Rent paid towards Rs. 25,200-00 0 0
house No.12/2,
Vinayaka Nagar,
Wilson Garden
24. Rent paid for house Rs. 21,600-00 0 Rs. 21,600-00
No.12 of Wilson
Garden
25. Rent paid from Rs.1,98,000-00 0 0
23.01.2007 to
01.05.2009 for house
No.81/2, Magadi road
paid by wife of
accused
26. Rent paid from Rs. 90,000-00 0 0
01.01.2002 to
22.01.2007 for house
No.81/2, Magadi road
paid by wife of
accused
27. Purchase value of Rs. 2,695-00 0 0
watch as per Invoice
28. Purchase value of Rs. 4,150-00 0 Rs. 4,150-00
household articles from
Giriyas Investment(P)
Ltd., Rajajinagar
108
SPL.C.C.79/2011
29. Electric item purchased Rs. 3,100-00 0 0
from Maruti Auto
Electrical, Rajajinagar
30. Membership Fee paid Rs. 106-00 0 Rs. 106-00
to Moodanahalli Milk
Producers' Co-
operative Society by
wife of accused
31. Amount paid to Smt. Rs. 3,000-00 Rs. 3,000-00 Rs. 3,000-00
Siddamma Rudrappa
Choultry regarding
marriage of daughter of
accused
Purchase value of Rs.1,25,000-00 0 Rs.1,25,000-00
32. Maruti Esteem Car
bearing Reg.No.KA-
03-N-4965
Total Rs.24,37,251-00 Rs.4,00,882-00 Rs.6,55,329-00
C). INCOME OF THE ACCUSED & HIS FAMILY
MEMBERS DURING THE CHECK PERIOD
40. The investigation officer while preparing final report has calculated the income of the accused under 5 heads and arrived at Rs.7,93,133-00. According to the Investigating Officer, the income of the accused during the check period from all his sources are as follows:-
Sl. Sources of Income Amount of
No. income
1. Salary of the accused during the check period Rs.7,41,064-00
2. Agricultural Income Rs.36,914-00
3. Income from Farming Rs. 9,918-00
4. Interest from Karnataka Bank accrued to the Rs.4,972-00
109
SPL.C.C.79/2011
account of accused
5. Interest from Karnataka Bank to the account of Rs. 265-00
wife of accused
Total Rs.7,93,133-00
41. The income and sources of income of the accused and his mother as per the case of the accused during the check period is as follows:
Sl. Income as per the Income according
No. Sources of Income case of to the accused
prosecution
1. Salary of the accused during Rs.7,41,064-00 Rs.7,41,064-00
the check period
2. Agricultural & Farming Rs. 36,914-00 Rs.14,43,337-00
income of the accused and
his mother
3. Interest from Karnataka Rs. 4,972-00 Rs. 4,972-00
Bank
4. Interest from Karnataka Rs. 265-00 Rs. 265-00
Bank
5. Agricultural income of wife Nil Rs. 6,44,405-00
of the accused
Total Rs. 7,92,953-00 Rs.20,35,111-00
42. The accused has admitted his salary income, interest credited to the bank accounts of accused and his wife, which are mentioned at Sl.Nos.1, 3 and 4 of the above mentioned table, but he has disputed the agriculture and horticulture income assessed by the prosecution at Sl.Nos.2 and 5 of the above mentioned table. Therefore, I proceed to discuss about disputed heads of income, which 110 SPL.C.C.79/2011 are mentioned at Sl. Nos. 2 and 5 of the above mentioned table. In his written arguments, the learned counsel for the accused has declared total agriculture income of the accused, his mother and wife at Rs.20,87,742-00. The learned counsel for the accused has argued that the investigation officer has not taken in to consideration the sources of income of the accused, his mother, his wife and his children.
43. On the basis of reports of the Deputy Director of Agriculture and the Assistant Director of Horticulture, which are marked as Ex.P-5 and Ex.P-6, the Investigating Officer has taken Agriculture and Horticulture income of the accused and his family members as follows:-
Sl.No. Sy.Nos Crops Net income
1. 155 Coconut Nil
2. 82 Sugarcane Nil
3. 95 Barren land Nil
4. 133 Paddy from 2005 to Rs.36,914-00
2009-10
5. 82/AP2 Sugarcane Nil
6. 155 Coconut Rs. 9,918-00
TOTAL RS.46,832-00
44. On the other hand, in his written arguments, the learned counsel for the accused has mentioned the agricultural income of the accused, his mother and wife as follows:
Sl. Description of the property Income during the check No. period
1. Sy.No.82 Rs.7,73,357-00
2. Sy.No.95 Rs.6,00,000-00 111 SPL.C.C.79/2011
3. Sy.NO.133/p1 Rs.40,000-00
4. Sy.No.155 Rs.30,000-00
5. Sy.No.155 Rs.40,000-00
6. Sy.Nos.169 & 172/2 Rs.1,04,405-00
7. Sy.Nos.487 & 487A Rs.5,00,000-00 Total Rs.20,47,762-00
45. Arguments of the learned special public prosecutor on agriculture income:- The learned public prosecutor has argued that on the basis of report of the Assistant Director of Agriculture, the investigating officer has considered the agriculture income of the accused, the accused has contended that his agricultural income, agriculture income of his mother and his wife was more than the income stated by the prosecution, but he has not substantiated it, therefore the agriculture income taken by the prosecution has to be considered.
46. Arguments of the learned counsel for the accused on agriculture income:- The learned counsel for the accused has argued that the agriculture income of the accused and his mother during the check period was Rs.14,43,337-00 and his wife was Rs.6,44,405-00. He argued that the necessary documents with respect to Sy.No. 82 of Mudanahalli village have been produced as Ex.D-3 to Ex.D-7, which are inherited by the accused from his father and currently 3 acres of land stand in the name of the accused, in the said land, 200 coconut trees are planted, sugarcane and ragi crops are growing but, the prosecution has not considered the income of this agriculture property 112 SPL.C.C.79/2011 and income of this land finds no mention in the entire Charge sheet. The learned counsel for the accused has further argued that said land was in the name of father of the accused and same has been in the family since 1986, as per the documents this land has been transferred to the name of accused in 2009, receipt of income from sugarcane crops by mother of the accused is also produced as Ex.D-20, in which the total agricultural income from sugarcane for the years 2007 and 2008 is Rs.1,73,557-00, but same has no mention in the Charge sheet and has not been a subject matter of investigation, thus, the total amount of agricultural income of accused and his mother from 1998- 2009 was Rs.7,73,357-00.
47. The learned counsel for the accused has further argued that Sy.No.95 measuring 6 acres 12 guntas of land belonged to the father of the accused during 1978-79, the accused has proved that in the said land ragi and sugarcane crops were growing, in this regard the accused has produced necessary documents as Ex.P-36 and Ex.D- 24 and Ex.D-25, income earned from Sy.No.95 during the years 2007 to 2009 was up to Rs.1,06,172-00, in this regard the document is marked as Ex.D-9, the receipts for getting income are also produced, but the Prosecution has failed to consider even income of a single year, the total amount of agricultural income of the accused and his mother in Sy.No.95 from 1998-2009 was Rs.6,00,000-00.
48. The learned counsel for the accused has argued that the accused has inherited 25 guntas of land in Sy.No.133 of Natanahalli 113 SPL.C.C.79/2011 village, in this regard a document has been got marked as Ex.D-19, during the assessment period it was stood in the name of the mother of the accused, wheat crop was growing in the said land, but the Prosecution has considered the agriculture growth for 5 years and income at Rs.36,914-00 only. He argued that the income in this property which is mentioned by the prosecution is false, the total income from this agricultural land during 1998-2009 was Rs.40,000-00.
49. The learned counsel for the accused has argued that the accused has inherited 20 guntas of land in Sy.No.155 of Natanahalli village in this regard he has got marked the document as Ex.D-22 and Ex.D-23, but the Prosecution has failed to consider the agricultural income generated in this property, total income of this agricultural land during 1998-2009 was Rs.30,000-00.
50. The learned counsel for the accused has further argued that the cross-examination of CW-46/PW-4 clearly shows that the fudged statistics and figures were taken for the agricultural income, the reports in Ex.P-5 and Ex.P-6 are biased and are factually incorrect and they are suffered from gross errors and not considered basic facts relating to agriculture. He argued that the variety of soil, crops and other basic factors have not been considered. He further submits that the reports have only been conducted for an assessment period for year 2005-2010 and not before even though the land belonged to the accused and his family. He has also submitted that the agricultural and 114 SPL.C.C.79/2011 farming income of the accused from his lands and the lands belonging to his mother that have been inherited amounts to around Rs.14,43,337-00, hence an amount of Rs.14,43,337-00 has to be taken into consideration towards agriculture income of accused and his mother.
51. Bearing in mind the rival arguments, now, I would like to discuss about the income of the agricultural properties of the accused and his mother.
52. Sy.No.82:-As stated above, in his written arguments, the learned counsel for the accused has submitted that total agriculture income of the accused and his mother in Sy.No.82 was Rs.7,73,357-00. As per his arguments, there were 200 coconut trees and sugarcane and ragi crops were grown in the said land. In his chief examination, DW-1 has deposed that 03 acres of dry land in Sy.No. 82/7 was there in Mudanahalli village in the name of his father, a borewel was dug and cultivating the with the help of water facility of the borewell, there were 200 coconut trees and he was growing Ragi and Sugarcane crops. PW-4 has deposed that by verifying the water sources and crops grown in the land he has assessed the income. In his cross-examination, PW- 4 has admitted that when he visited the land, there was sugarcane crop, but he has not shown income of sugarcane crop as sugarcane crop was not mentioned in the RTC. It is to be noted that PW-4 has visited the land on 19.06.2010 and admittedly sugarcane crop was not shown in RTC extract. Therefore, the burden was on the accused to show that 115 SPL.C.C.79/2011 during the check period he has grown sugarcane crop and got income of Rs.7,73,357-00 as submitted in his written arguments. As per the contents of RTC extracts of Sy.No. 82, it was a Gomal land and after grant, mother of the accused was growing horsegram during 2007-08, ragi and horsegram crops were growing during 2003-04. PW-4 has denied the suggestion of the learned counsel for the accused that there were 300 coconut trees in Sy.No.82 and 82/Ap2. As per the chief examination of DW-1, he was getting agriculture income of rupees 6 lakhs to 7 lakhs from Sy.No.82/7, Sy.No.95, Sy.No.133 and Sy.No.155 and agriculture income was taking by his mother. In his cross- examination, DW1 has admitted that existence of 200 coconut trees is not mentioned in RTC extracts of the years 2006-07 and 2007-08, which are marked as Ex.D-3. As stated above, the accused has produced RTC extracts of Sy.No.82/7 as per Ex.D-3, what I came to know after careful perusal of these documents is that Ragi and horsegram crops were growing in this property. As argued by the learned public prosecutor, there is no evidence on record to show that sugarcane, paddy and coconut were growing during the check period and got income of Rs.7,73,357-00 as contended by the accused.
53. The learned counsel for the accused has suggested PW-4 that the accused, his mother and his wife did sent tons of sugarcane to Sugar Factory. But except production of Ex.D-9, the accused has not shown to the court that between 01.06.2007 to 01.06.2009 he had supplied 252 Metric Tons of Sugarcane to Coramandal Sugar Limited as mentioned in a letter dated 14.10.2009 (Ex.D-9). PW-4 has got 116 SPL.C.C.79/2011 marked his report as Ex.P-5, which says that for the first time the accused had grown the crop in Sy.No.82 and Sy.No.83/Ap2. As aforesaid, PW-4 has visited the land on 19.06.2010 and as per his inspection for the first time sugarcane crop was growing in Sy.No.82. Therefore the burden was on the accused to prove that during the check period he was growing sugarcane crop. The accused has produced a weighment ticket dated 29.12.2008 as Ex.D-9, as per this document the accused had supplied 13.360 tons of sugarcane. But the accused has not stated what was the price of 13.360 tons of Sugarcane on that date. Further, this weighment letter is silent about what amount was received by the accused for selling 13.360 tons of sugarcane. The accused has produced a letter dated 14.10.2019, said to be issued by Coromandel sugars Limited, which is attached to Ex.D-9. This letter states that on 09.01.2009 the accused had supplied 110.0099 metric tons of sugarcane and on 06.01.2010 he had supplied 139.352 metric tons of sugarcane to Coromandel sugars Limited and received cheques of Rs.3,01,413-00. The letter said to be issued by Coromandel sugars Limited is dated 14.10.2019 and as per this letter 139.352 tones of sugarcane was supplied on 06.01.2010 ie., after the check period. The accused has also got marked another letter dated 10.14.2019 as Ex.D-20 and a card named as ICL Sugar Limited as per Ex.D-21. As per Ex.D-20, mother of the accused had supplied 39.115 metric tons of sugarcane on 13.02.2007 and 161.429 tons of sugarcane on 25.04.2008 and got total income of Rs.1,73,557-00 through 3 cheques. Admittedly, these two letter were issued on 14.10.2019 after 10 years from the date of alleged supply of sugarcane, apart from that the accused has not proved the 117 SPL.C.C.79/2011 contents of these documents as he has not choosen to examine the person who had issued these documents. Mere marking of a document will not amounts to proof of its contents. Though the accused need not prove his defence beyond reasonable doubt, he has to establish his case by a preponderance of probability by satisfying the court that he was having agriculture income as he has contended. The contents of the letter dated 14.10.2019, which is attached to Ex.D-9 clearly state that price of sugarcane crop was given to the accused throgh 3 cheques and the cheque numbers have also been mentioned in that letter. If really said amount was credited to the account of the accused through cheques, the accused would have produced bank account extract to prove his contention, which would be most easiest way for him to prove his contentions.
54. Interesting fact is that though the accused has got marked the weighment tickets and a letter said to be issued by Coromandel sugars Limited and he contended that he had supplied sugarcane to Coromandel sugars Limited, he has not deposed anything about supply of sugarcane and receipt of the amount which is mentioned in Ex.D-9. Thus, except marking of Ex.D-9, the accused has not given evidence on this document. The accused has also produced 10 weighment tickets along with Ex.D-9, but what I known by perusal of these tickets is that these are of the year 2011 ie., they were issued after the check period. At the cost of repetition, again I would like to state that except production of these tickets and letters, neither the accused nor his mother (DW-4) have stated anything about these documents. Thus, 118 SPL.C.C.79/2011 there is no convincing evidence on record at least to show that the accused has got income of Rs.7,73,357-00 during the check period as contended in his written arguments.
55. Sy. No.95:- As per the arguments of the learned counsel for the accused, in Sy.No.95, the accused and his mother have got income of Rs.6,00,000-00 from 1998 to 2009. As per the report of PW-4 (Ex.P-5), Sy.No.95 was a barren land. PW-4 has deposed that after he varified the water sources available to the land and crop grown, he had assessed the agricultural income. He further deposed that he was having experience of assessing agricultural income. The accused has not questioned the qualification or capacity of PW-4 in assessing the agricultural income. The learned counsel for the accused has argued that in order to prove agriculture income from Sy.No.95, the accused has produced RTC extracts. DW-1 has deposed that he was having 6 acres 12 guntas of dry land in Sy.No. 95, he dug a borewell and growing Sugarcane and Ragi. The accused has got marked Mutation and RTC extracts of Sy.No.95 as per Ex.P-24 and Ex.P-25 respectively. These documents state that 6 acres 12 guntas of land in this survey number is in joint names of mother of accused and one Ningamma. The contents of Ex.P-25 also state that horsegram crop was growing in this land. Though the accused has contended that till 2009 sugarcane crop was growing in Sy.No.95 and then it became a barren land, he has not substantiated it. The suggestion of the learned counsel for the accused that sugarcane was growing in Sy.No.95 has been denied by PW-4. There is no evidence of growing sugarcane in this land. The 119 SPL.C.C.79/2011 suggestions of the learned counsel for the accused that Sy.No.95 was having water facility through pump set and there was a sugarcane crop in that land have been specifically denied by PW-4. In his cross- examination, DW-1 has admitted the suggestions of the learned special public prosecutor that in RTC extracts of the years 1978-79, 1983-84 and 1988-89 which were pertaining to Sy.No.95, there was no mention about water facility to that land and the crop was shown as horsegram. Normally, in barren land horsegram would be grown, the accused has not even attempted to substantiate that how much horsegram and Ragi crops were grown in that land and what was the income during the check period out of horsegram and Ragi crops. Thus, the accused has failed to satisfy the court that he and his mother have earned agriculture income of Rs.6,00,000-00 in Sy.No.95 during the check period.
56. Sy.No.133/p1:- As stated above, in his written arguments, the learned counsel for the accused has argued that in Sy.No.133, the accused and his mother had earned agricultural income of Rs.40,000-00 during the check period. The learned counsel for the accused has also argued that wheat crop was growing in Sy.No.133. The accused has also got marked the RTC extracts pertaining to Sy.No.133 measuring 25 guntas of land as Ex.D-19, which is in the name of mother of the accused. The suggestion of the learned counsel for the accused to PW- 4 was that since the Lokayukta police had asked him information for the year 2005 to 2010, he has mentioned the paddy crop for those years only. After perusal the RTC extracts, which are at Ex.D-19, I came to know that paddy crop was growing in the said land since from 1998.
120SPL.C.C.79/2011 As per Ex.P-5, paddy crop was growing in Sy.No.133 using channel water and net income during the check period was Rs.47,945-00. There is no material on record to show that wheat crop was growing in this land as argued by the learned counsel. In the written arguments of the accused, it is submitted that agriculture income of accused and his mother from 1998 to 2009 was Rs.40,000-00. But as aforesaid, the report of PW-4 says that agriculture income from Sy.No.133 during the check period was Rs.47,945-00. As the income in Sy.No.133, whcih is assessed by PW-4 is more than the income mentioned by the accused and it is beneficial to the accused, I accepted the report of PW-4 and hold that total agriculture income from Sy.No.133 during the check period was Rs.47,945-00.
57. Sy.No.155:- In his chief-examination, DW1 has deposed that he was having 20 guntas of land in Sy.No.155 and it is a aracanut and coconut farm. Arguments of the learned counsel for the accused was that accused was growing coconut, aracanut and banana crops and got income of Rs.3,00,000-00 during 1998-2009. As per RTC extracts of Sy.No.155/p1, which are marked at Ex.D-23, from 1998 to 2006, 20 guntas of land in Sy.No.155/p1 was in the name mother of the accused by name Smt. Gangamma and in the year 2008, khata of this property was changed into the name of accused as per partition dated 30.06.2008. These documents have also state that from 1998 to 2002, coconut and banana crops were growing, from 2003 to 2006 banana crop was growing and during 2008-09 paddy crop was growing. But, there is no evidence to show how much paddy, banana and coconut 121 SPL.C.C.79/2011 crops were grown and what was the annual income from this property. The accused has not deposed anything about the income of this property during the check period. In the cross examination of PW 4, the accused has taken a contention that in Sy.No.155 there were 90 arecanut trees and 37 coconut trees. But no amount of evidence has been produced by the accused to substantiate his contention. PW-5 has assessed the income of agriculture land bearing Sy.No.155 and given his report as per Ex.P-6. PW-5 has specifically deposed that he and Assistant Horticulture officer have participated in inspection of the property. As per report of PW-5 (Ex.P-6), during 2007-08 there was only one 5 years old coconut tree and 29 coconut trees of 29 years old, during 2008-2009 there was only one 6 years old coconut trees and 30 coconut trees of 30 years old in Sy.No.133, these trees yielded 2320 coconut trees during 2007-08 and net income was Rs.4,475-00, during 2008-09 they yeilded 4,997 coconut trees and net income was Rs.5,443-00. In his chief-examination, PW-5 has deposed that he was having experience in assessing income from coconut trees. It is not in dispute that PW-5 was having experience to assess horticulture income. The report of PW-5 is marked the Ex.P-6. PW-5 has admitted the suggestions of the learned counsel for the accused that diffeent variety of coconut trees yield in different years, cultivation cost may be less if trees are grown by owner personally by making own arrangement for fertilizer and yiled of coconut trees depends on standard of soil. The learned counsel for the accused further suggested PW-5 that there were 90 aracanut trees in the said land. But, except these suggestions, the accused has not produced any amount of evidence to show what were 122 SPL.C.C.79/2011 the varieties of coconut trees grown in his property, whether he himself or his family members were personally cultivating and personally arranged for fertilizer. Further, there is no evidence on record to show what was the type of soil of land in Sy.No.155. Mere putting suggestions in the cross-examination of the witness will not take away the credibility of his chief-examination, which was given on oath.
58. It is to be noted that known source of income means income known to the prosecution. In a decision reported in AIR 1960 SC 7, which arose between C.D.S. Swami v. State, the Hon'ble Apex Court has held that: '.......known sources of income" must have reference to sources known to the prosecution on a thorough investigation of the case. It was not, and it could not be, contended that "known sources of income" means sources known to the accused. The prosecution cannot, in the very nature of things, be expected to know the afairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106 of the Evidence Act....' In the present case the prosecution has produced the evidence about income of agricultural and Horticulture properties which are known to it, if soil of the land is more fertile and trees are of special varities, the burden was on the accused to substantiate it. In his chief examination also the accused has not deposed whether he or his wife or his mother have personally taken care to cultivate and grow coconut trees. No doubt, PW-5 has also admitted the suggestion of the learned counsel that if age of the coconut trees is considered as 24 to 25 years, income from coconut trees will be much more than what is 123 SPL.C.C.79/2011 mentioned in the report. As per EX.P6, age of the coconuts trees was 29 to 30 years and their age was mentioned after spot inspection. If the accused has disputed age of the coconut trees mentioned in Ex.P-6, he could have deposed in his chief-examination and he could have file a report of an expert in this regard. As stated above, DW-1 has deposed that in 20 guntas of land in Sy.No.155, he has grown coconut and arecanut trees. But accused has not stated how many coconut trees and how many arecanut trees were there and how many trees were yielding. Further, the accused is not also specific what was the income from those coconut and arecanut trees during the check period. A careful perusal of Ex.P5, Ex.P5 (a), Ex.P6 and Ex.P6 (a) makes it clear that after personal visit to the properties, considering age of the crop, water sources available to the said lands and after deducting expenses made for irrigation, income was assessed. Except the suggestions, there is no reason on record to discard evidence of PW-4 and PW-5 and the contents of Ex.P-5, Ex.P-5 (a), Ex.P-6 and Ex.P-6 (a). The learned counsel for the accused suggested PW-5 that he has given false report and intentionally mentioned less income. But there is no material on record to show enemity between PW-5 and the accused to give false report and to lead false evidence against the accused. As aforesaid income means, income known to the Prosecution. The Prosecution has produced the documents and examined its witnesses to substantiate its contention regarding income of the accused which is known to it. If income of the accused was more than the income given by the investigating officer during the check period, the accused should have probabilize it. But mere suggestion and argument of the learned 124 SPL.C.C.79/2011 counsel for the accused are not sufficient to satisfy the court to accept his contention. Therefore, I have accepted the evidence of PW-5 and the report which is marked as Ex.P-6. Accordingly, I hold that the agricultural/horticultural income of the accused from Sy.No.155 during the check period was Rs. 9,918-00.
59. While arguing, the learned counsel for the accused has relied on a decision of Hon'ble Supreme Court reported in (2017) 6 Supreme Court Cases 263, which arose between State of Karnataka v/s J. Jayalalitha and others and argued that evidence of PW-4 and PW-5 are not worthy for acceptance. In this decision, the Hon'ble Supreme Court has held that '...an expert is who has made a subject upon which he speaks or renders his opinion, a matter of particular study, practice or observation and has a special knowledge thereof. His knowledge must be within the recognized field of expertise and he essentially has to be qualified in that discipline of study. It has been propounded that an expert is not a witness of fact and his evidence is really an advisory character and it is his duty to furnish to the judge/court the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge/court to form his/its independent judgment by the application of such criteria to the facts proved by the evidence......'. In the case on hand, after perusal of documentary evidence ie., reports given by PW-4 and PW-5 and oral evidence given by them, I came to know that there is no reason to discard the oral and documentary evidence submitted by these two witnesses and their evidence is worthy for acceptance. Further, PW-4 125 SPL.C.C.79/2011 was a Deputy Director of Agriculture and PW-5 was a Senior Assistant Director of Horticulture. PW-4 has specifically deposed that he was having experience in assessing agriculture income. PW-5 has also deposed that he was having experience in assessing income from coconut trees. It is to be noted the accused has not disputed the qualification of these witnesses to assess the agriculture and horticulture income. After appreciating the evidence of prosecution and defence on question of income and the documents available on record, I found no reason to discard evidence of these witnesses regarding agriculture and horticulture income. It is pertinent to note that Ex.P-5 and Ex.P-6 were prepared after spot inspection, verification of R.T.C., extracts, water sources available to the respective agriculture lands. In Ex.P-5 it is specifically mentioned that in Sy.No. 82 and 82/AP2 for the first time sugarcane crops were grown taking pump set facility, before that no evidence of growing any crops. As per the contents of Ex.P-5, PW 4 has visited the lands on 19.06.2010. Since, for the first time sugarcane was grown in Sy.No.82 in the year 2010 i.e., after the check period, PW-4 could not assess the income. By considering the facts that Sy.No. 133 was irrigated land and growing paddy, PW-5 has considered this fact to asses the income accrued in Sy.No.133. Further, on the basis of age and number of coconut trees in 19 guntas of land of Sy.No. 155, PW 5 has assessed income and issued report as per Ex.P6. On the other hand, except marking of RTC extracts and arguments of learned counsel for the accused, there is no evidence to consider the contention of the accused that total agriculture income of the accused during the check period was 14,43,337-00.
126SPL.C.C.79/2011 Therefore, by accepting contents of Ex.P-5 and Ex.P-6 and also oral evidence of PW-4 and PW-5, I hold that the agriculture and horticulture income of accused and his mother during the check period was Rs.47,945-00 and Rs.9918-00 respectively.
60. Regarding income of the wife of the accused, the learned counsel for the accused has submitted that income of wife of the accused from properties in Sy.No.169 and 172/2 during 1993 to 2009 was Rs.1,04,405/- and the income from Sy.No.487 and 487-A has not been considered by the investigating officer and the total income of wife of the accused from the agricultural properties during the check period was Rs. 6,44,405-00. He argued that no investigation was conducted in respect of income, assets and financial situation of the parents of Smt. Gayathramma, her parents have gifted several properties and amount, but the prosecution has deliberately left out them to implicate the accused. The learned counsel for the accused has further argued that wife of the accused has inherited Sy.No. 487 and 487-A, the documents in this regard marked as Ex.D-30 to Ex.D- 32 and she had earned rent from these properties. Bearing in mind the arguments of the learned counsel for the accused, I have perused the documents produced by the accused. As per the documents on record, 22 guntas of land in Sy.No. 169, 39 guntas of land in Sy.No.172/2, 2 guntas of land in Sy.No. 27/3, 17 and 10 guntas of land in Sy.No.155 and Property Nos.487 and 487A are in the name of wife of the accused by name Smt. Gayathramma and 2 acres of land in Sy.No. 82/Ap2 was mortgaged by one Siddegowda under a mortgage deed.
127SPL.C.C.79/2011
61. Property No.487 & 487A:- A perusal of Ex.D-30 to Ex.D- 32 makes it clear that these properties are not agricultural properties, but they are sites. There is no evidence regarding gift of these properties to wife of the accused by her parents. On the basis of Ex.D- 30 and Ex.D-32, even if the argument of the learned counsel for the accused is believed that these two properties are gifted to the wife of the accused, there is no evidence when and whom these properties were rented out and what was the rent per month. The accused has also not stated to whom these properties were rented out, what was the rent amount and whether only sites were rented out or there existed houses to rent them out.
62. Sy.Nos.169 and 172/2:- The contents of Ex.D-35 state that 22 guntas of land in Sy.No.169 came to the name of Smt.Gayathramma through transfer of katha. As per the contents of Ex.D-36, 39 guntas of land in Sy.No.172/2 was purchased by wife of the accused. Argument of the learned counsel for the accused is that wife of the accused got agriculture income of Rs.1,04,405-00 in Sy.No.169 and Sy.No.172/2. The Contentions of the accused is that these properties are inherited by his wife from her parents. In this regard, the accused himself has got marked the documents as Ex.D-35 and Ex.D-36. The contents of Ex.D-35 state that 22 guntas of land in Sy.No.169 has been transferred to the name of wife of accused in the year 1993-94 and Ex.P-36 says that it was purschased by wife of the accused. But, the Investigating Officer has not stated anything about these two properties. A perusal of the documents in Ex.P-5 and charge 128 SPL.C.C.79/2011 sheet reveal that the prosecution has not considered these properties under the heads of 'Assets' and 'income'. As per the contents of Ex.D- 35, paddy and sugarcane crops were growing in 22 guntas of land in Sy.No.169. The contents of Ex.D-36 state that paddy crop was growing in 39 guntas of land in Sy.No.172/2. But, Ex.D-35 is of the year 2022-23 and Ex.D-36 is of the year 1993-94. A perusal of these documents makes it clear that the wife of accused is having only 22 guntas of land in Sy.No.169 and 39 guntas of land in Sy.No.179/2. It is to be noted that only in his written arguments the learned counsel for the accused has submitted that the wife of the accused earned agricultural income of Rs.1,04,405-00 in Sy.No.169 and Sy.No.172/2. But neither DW1 (accused) nor DW-5 (wife of the accused) have deposed that out of Sy.No.169 and Sy.No.172/2, they earned agricultural income of Rs.1,04,405-00 during the check period. As aforesaid, source of income means income known to the prosecution. The prosecution has calculated the income out of the sources known to it, if the accused is contending that he was also having other sources of income, he has to establish the existence of other source income and also income accrued in that source. But, except the argument of the learned counsel for the accused, not even single evidence has been produced by the accused to show agriculture income of his wife. No doubt, as per Ex.D-35, in the year 2022-23 wife of accused was growing paddy and sugarcane in Sy.No.169 and as per Ex.D-36 paddy was growing in Sy.No.172/2, but no evidence regarding the amount of crops grown and income accrued on it. In the absence of any evidence either oral or documentary, only on the arguments of the learned 129 SPL.C.C.79/2011 counsel, it cannot be held that wife of the accused earned agriculture income of Rs.1,04,405-00 from Sy.No.169 and Sy.No.172/2 during the check period.
63. Sy.No.155:- As per the RTC extract and Mutation pertaining to Sy.No.155, 17 guntas of land and 10 guntas of land in Sy.No.155 are in the name of wife of the accused. The certified copy of the sale deeds, which are in Ex.P-48 state that wife of the accused had purchased 17 guntas of land and 10 guntas of land in Sy.No.155. As per the argument of the learned counsel for the accused, income from Sy.No.155 during the check period was Rs.30,000-00. As per list of immovable properteis (Annual report of Assets and Liabilities) submitted by the accused to his higher authority for the year ending 2007, he got income of Rs.3,00,000-00 from 4 acres of 10 guntas of land Sy.No.82 and 10 guntas of land in Sy.No.155. Accused / DW1 has deposed that he was having 20 guntas of land in Sy.No.155 of Natanahalli and he was growing coconut and aracanut. But, 17 guntas of land and 10 guntas of land in Sy.No.155 which are purchased by wife of the accused are situated in Mudanahalli. But, neither the accused nor his wife (DW-5) have deposed about crops and income in 17 guntas of land and 10 guntas of land in Sy.No.155.
64. It is settled principal of law that income means income known to the Proseccution. The investigating officer has considered the source of agricultural income known to him, if the accused was holding other sources of income, he should have furnished the 130 SPL.C.C.79/2011 investigating officer by filing his schedule. Admittedly, the Investigating officer has sent empty forms of schedule to the accused to submit his schedule, but accused has not submitted it. Even if accused was not able to submit his schedule to the Investigating officer, he should have proved the other sources of income and income earned during the check period by producing cogent and convincing evidence before the court. But the accused has not produced any amount of evidence to show that his wife earned agriculture income of Rs.40,000-00 from 10 guntas and 17 guntas of land in Sy.No.155.
65. Sy.No.82/Ap2:- The investigating officer has not considered Sy.No.82/Ap2 under the head 'asset' as it is a mortgaged land, but he considered the mortgage money of Rs.75,000-00 under the head 'expenditure'. In his report, PW-5 has given reason for not considering the income said to be accrued in this land. As per Ex.P-5 and evidence of PW4, for the first time sugarcane crop was growing in that land when he visited that land. In his chief-examination, PW-4 has admitted the suggestion of the learned counsel for the accused that he has seen sugarcane crops in Sy.No.82/Ap2. PW-4 has specifically stated that as sugarcane was grown for the first time in Sy.No.82/Ap2, he has not considered the crop to assess income. It is to be noted that as PW-4 has visited the land on 19.06.2010 ie., after the check period and he came to know that for the first time sugarcane crop was grown in that land he has not considered the crops to assess income. If it is the case of the accused that he was growing sugarcane crop since from 1998 till the end of check period, the burden was on him to establish the same.
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66. At para No.97 of his chief-examination, the accused /DW1 has deposed that he has produced a letter issued by Koramandal Sugars Limited for having supplied sugarcane grown in Sy.No.82 of Mudanahalli village by his wife as Ex.D-38. In view of this evidence of the accused, I have gone through a letter which is marked as Ex.D- 38, which is said to be issued by Coromandel Sugars Limited. As per the contents of Ex.D-38, wife of accused had supplied 187.605 metric tons of sugarcane on 05.05.2008, 86.278 metric tons of sugarcane on 09.01.2009 and 117.681 metric tons of sugarcane on 28.12.2009. This letter was issued on 14.10.2019 after the raid, therefore it is for the accused to lead convincing evidence to probabilize his contentions. Though the prosecution has disputed this letter, the accused has not chosen to examine the person who had issued this letter. Further, as per this letter Coromandel Sugar Limited had paid the amount of Rs.4,13,403-00 to the wife of accused on different dates through 5 cheques. When the price of sugarcane was paid to wife of the accused through cheques and if really she had encashed it, the accused should have produced statement of bank account of his wife to substantiate his contentions. Though it was easy for the accused to produce the account extracts to prove payment of amount of sugarcane through cheques, he has not produce the account extracts. This attitude of the accused shows that the letters produced by the accused as per Ex.D-9, D-20 and D-38, which are said to be issued by Coromandel Sugars Limited are created for the purpose of showing higher income.
67. Further, Ex.P-59 is only a mortgage deed and it is not helpful to decide whether sugarcane crop was growing in that land 132 SPL.C.C.79/2011 during the check period or not. The accused has also got examined his wife as DW-5, but she has also not deposed anything about the crops in Sy.No.82/Ap2. In his cross-examination, PW-4 has stated that there were no coconut trees in Sy.No.82/Ap2. PW-4 has denied the suggestion of the learned counsel for the accused that there were 300 coconut trees in Sy.No.82/Ap2. But, as aforesaid, nothing is on record to show that there were coconut trees in this land. There is no evidence regarding quantum of income out of Sy.No.82/Ap2 and also there is no argument of the learned counsel for the accused in this regard.
68. Sy.No.27/3:- As per the certified copy of the sale deed dated 15.09.2008, which is in Ex.P-16, wife of the accused had purchased 2 guntas of land in Sy.No.27/3. Though DW-5 has deposed that she was getting income of Rs.3,50,000-00 from her properties, neither the DW1 nor DW-5 have deposed about Sy.No.27/3, crops growing and income accrued in that property. The accused has not even attempted to produce RTC extract of this property to show which crop was growing in that property. The argument of the learned counsel for the accused is also silent about 2 guntas of land in Sy.No.27/3 and income accrued in it. Though certified copy of sale deed states that wife of the accused had purchased this property, in the absence of evidence about crop and income, court cannot presume that wife of the accused was getting agriculture income from this property.
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69. Thus, sources of income and income of the accused and his family members, as per the case of prosecution, as per the contention of the accused and findings of this court are as follows:-
Sl. Sources of income As per the case of As per the case of Findings of the No. prosecution accused Court
1. Salary of accused Rs.7,41,064-00 Rs.7,41,064-00 Rs.7,41,064-00
2. Agriculture Rs.36,914-00 Rs.14,43,337-00 Rs.36,914-00 income of accused and his mother
3. Horticulture Rs.9,918-00 0 Rs.9,918-00 Income of accused
4. Interest income of Rs.4,972-00 Rs.4,972-00 Rs.4,972-00 accused from Karnataka Bank Ltd.,
5. Interest income of Rs.265-00 Rs.265-00 Rs.265-00 wife of from Karnataka Bank Ltd.,
6. Agriculture Nil Rs.6,44,405-00 Nil income of wife of the accused TOTAL Rs.7,93,133-00 Rs.28,34,043-00 Rs.7,93,133-00
70. The accused has not disputed search and mahazar conducted in his house. After search of the house of the public servant, recording statement of witnesses and collecting necessary documents, the investigating officer prepares the Final Report on the basis of collected documents and statement of witnesses. To know whether the accused has amassed disproportionate assets, basically consider three aspects viz., value of assets earned during the check period, his expenditure and finally the income. For the purpose of ascertain as to what is the percentage of disproportionate assets, the accepted formula is that 134 SPL.C.C.79/2011 assets and expenditure shall be added, then lawful income has to be deducted from total assets and expenditure. According to Investigating Officer, assets of the accused and his expenditure were far more than the total income during the check period.
71. After analysing oral and documentary evidence available on record and calculation, finally this court finds that the total value of assets of the accused and his family members during the check period is Rs.9,16,223-00, total expenditure of the accused and his family members is Rs.6,55,329-00 and total income of the accused and his family members is Rs.7,93,133-00. Now, let's calculate the percentage of the disproportionate amount compared to the known income:-
Disproportionate Asset = Total value of asset + Expenditure
- Known income Disproportionate Asset = (Rs.9,16,223-00 + Rs.6,55,329-00
- Rs.7,93,133-00).
Disproportionate Asset = Rs.7,78,419-00. Percentage of Disproportionate Asset = (Disproportionate Asset / known income) x 100 In this case % of DA = (Rs.7,78,419-00 / Rs.7,93,133-00) x 100 = 98.14 %
72. On evaluation and appreciation of the entire evidence on record, this court finds that the accused has accumulated disproportionate assets of Rs.7,78,419-00 during check period over and above the known source of his income known to the prosecution.
135SPL.C.C.79/2011 Therefore, on going through the entire materials placed before this court, I hold that the prosecution has successfully proved the necessary ingredients to constitute the offence under Section 13 (1) (e) of the PC Act, against the accused beyond reasonable doubt. Therefore, the prosecution has discharged its initial burden to establish the ingredients of the offence of the criminal misconduct by the accused beyond reasonable doubt.
73. The learned counsel for the accused has relied on a decision of the Hon'ble Supreme Court reported in (2017) 14 Supreme Court Cases 442, which arose between Vasant Rao Guhe v/s State of Madhya Pradesh. In this decision, the Hon'ble Supreme Court has held that '...a public servant charged of criminal misconduct has to be proved by the prosecution to be in possession of pecuniary resources or property disproportionate to his known source of income, at any time during the period of his office. Such possession of pecuniary resources or property disproportionate to his known source of income may be his or of anyone on his behalf as the case may be. Further, he would be held guilty of such offence of criminal misconduct, if he cannot satisfactorily account for such Disproportionate pecuniary resources or property'. I have applied the principles of the decision of the Hon'ble Supreme Court to the case on hand. In view of this decision, only on the ground that the prosecution has proved disproportionate assets, it cannot be held that the accused has committed the offence of criminal misconduct under Section 13 (1) (e) of the PC Act, unless the accused has failed to account for disproportionate assets. When the prosecution has proved 136 SPL.C.C.79/2011 its contention, then the onus shifts to the accused to establish the 'known source of income' for the disproportionate assets held by him. As stated above, the explanation appended to Section 13(1) defines the term "known source of income" as income received from any lawful source and such receipt has been intimated in accordance with provisions of any law, rules or orders for the time being applicable to the public servant. Regarding expression of burden of proof on the accused, the learned counsel for the has relied on a decision of the Hon'ble Supreme Court reported in (1981) 3 Supreme Court Cases 199, which arose between State of Maharashtra v/s Wasudeo Ramchandra Kaidalwar. In this decision, the Hon'ble Supreme Court has held that 'The nature and extent of the burden cast on the accused is well settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability. All that he need do is to bring out a preponderance of probability. Such being the law, the question whether or not the respondent had established a preponderance of probability is a matter relating to appreciation of evidence'. In the background of the decision of the Hon'ble Supreme Court, it is my duty to appreciate the oral and documentary evidence on record to know whether the accused has probabilize his contentions such as his wife was having independent income doing stamp vending business, he and his mother got total agriculture income of Rs.14,43,337-00 and his wife got total agricultural income of Rs.6,44,405-00 during the check period. The public servant who is found in possession of disproportionate assets to his known source of income has to show that he had received such 137 SPL.C.C.79/2011 excessive amount from lawful source and that the receipt of such excess income has been intimated in accordance with the provisions of any law or rules or orders for the time being applicable to the said public servant. The Hon'ble High Court of Karnataka, in the case between Babappa Vs. State by Lokayuktha Police, Gulbarga, reported in 2010(2) KLJ 1C, has held that, "expression 'known source of income' refers not to sources known to the prosecution, but to sources known to the accused himself for which, he alone can know all his source of income. Thus, the PC Act, casts the burden on the accused not only to offer plausible explanation as to how he acquired the wealth but also to satisfy the court that his explanation is worthy of acceptance. This burden, can be discharged by the accused by establishing his case by preponderance of probabilities". Thus, it is well settled principles of law that the accused has not only to offer plausible explanation as to how he came by the large wealth disproportionate to his known source of income, but also to satisfy the court that his explanation is worthy of credence. If the prosecution succeeded in its attempt to prove possession of disproportionate assets, the statutory presumption has to be raised and it would be for the accused to rebut the same by cogent evidence.
74. Admittedly, the accused has entered into State Government Service on 09.06.1982, he was working as 'peon' and subsequently promoted as SDA. It is to be noted that neither the accused nor the prosecution has stated when the accused has promoted as SDA. But, admitted fact is that the accused has started to submit his Annual Report of Assets and Liabilities from 31.03.2004 ie., from the year ending 2004 138 SPL.C.C.79/2011 therefore, it can be safely presumed that the accused had promoted as SDA in the year 2003 or 2004. Therefore, the accused was bound to submit the Annual report of his Assets and Liabilities to the authority as to acquisition of either movable or immovable assets in his name or in the name of his family members and also income earned in that year. At the cost of repetition and for better under standing again I state that Details of agricultural properties standing in the name of accused and his family members as per the documents on record are as follows:-
Sl. Description of Extent Owner of the Documents No. properties properties pertaining to the property
1. Sy.No.87/2 3 Acres Accused Ex.D-4
2. Sy.No.155/P2 0.20 Acres Accused Ex.D-23
3. Sy.No.169 2.14 Acres Wife of the accused Ex.D-35
4. Sy.No.172/2 0.39 Acres Wife of the accused Ex.D-36
5. Sy.No.82/P2 2 Acres Wife of the accused Ex.P-59
6. Sy.No.27/3 0.02 Acres Wife of the accused Ex.P-16
7. Sy.No.82 4.00 Acres Wife of the accused Ex.D-4
8. Sy.No.155 0.17 Acres Wife of the accused Ex.P-48
9. Sy.No.155 0.17 Acres Wife of the accused Ex.P-48
10. Sy.No.82/7 1.21 Acres Mother of the Ex.D-3 accused
11. Sy.No.133/P1 0.25 Acres Mother of accused Ex.D-19
12. Sy.No.95 6.12 Acres Mother of the accused Ex.D-5
13. Sy.No.155/P1 0.20 Acres Mother of the accused Ex.D-23
75. After critical examination of Annual Asset and Liabilities reports, which are in Ex.P-24, I came to know that the accused has declared existence of 4 acres 20 guntas of land in Sy.No.82, a motor cycle, 2 acres of land and a house and purchase of site No.670H, site 139 SPL.C.C.79/2011 No.309, one Onida TV, one Fridge. But, the accused has not intimated about existence of 3 acres of land in Sy.No.87/2, 20 guntas of land in Sy.No.155/p2 in his name and existence of 22 guntas of land in Sy.No.169, 39 guntas of land in Sy.No.172/2 and 2 acres of land in Sy.No.82/p2, purchase of 17 guntas of land in Sy.No.155 in the name of his wife. The accused has also not intimated about existence of 1.21 acres of land in Sy.No.82/7, 25 guntas of land in Sy.No.133/p1, 6.12 acres of land in Sy.No.95 and 20 guntas of land in Sy.No.155/p1 in the name of his mother. It is pertinent to note that the accused has also not intimated about acquisition of agricultural income by him, his mother and his wife from 2004 ie., when he started to submit annual report of assets and liabilities, as required under Karnataka Civil Service (Conduct) Rules. Therefore, the accused could not comply the requirement of 'known source of income' as provided under explanation to Sec.13(1)(e) of the PC Act.
76. Though the prosecution has established the ingredients of the offence against the accused, he has not placed any evidence to prove the lawful source of income for excess wealth possessed by him during the check period. The accused has admitted the contentions of the prosecution that total net salary income of the accused, during the check period is Rs.7,41,064-00, total interest income of the accused during the check period is Rs.4972-00 and total interest income of wife of accused is Rs.265-00. As per the contention of the prosecution total agriculture income of the accused and his family members during the check period is Rs.46,832-00. But the accused has contended that total agricultural 140 SPL.C.C.79/2011 income of the accused and his family members during the check period was Rs.14,43,337-00. The learned counsel for the accused has argued that the accused has clearly proved the amount of agricultural land that he has inherited and inherited by his wife and mother, he has clearly established the crops grown over the various agricultural lands, receipts of sale proceeds, but the prosecution has not consider these aspects. Bearing in mind, the rival contentions regarding assets, expenditure and income of the accused, a question that I posed to myself is that whether the accused has offered satisfctory explanation as to how he acquired the above said disproportionate asset. Regarding the word 'satisfactory explanation', it is helpful to this court to rely on the decision of the Hon'ble Supreme Court reported in (2017) 6 Supreme Court Cases 263, which arose between Satate of Karnataka v/s J. Jayalalitha, which has been relied on by the learned counsel for the accused himself. In this decision, the Hon'ble Supreme Court has held that: 'It was emphasised that the word "satisfactorily" did levy a burden on the accused not only to offer a plausible explantion as to how he came by his large wealth but also to satisfy the Court that the explanation was worthy of acceptance. The noticeable feature of this pronouncement thus is that the explanation offered by the accused to be acceptable has to be one not only plausible in nature and content but also worthy of acceptance'. I have applied this principle to the case on hand. In his written arguments, the learned counsel for the accused has submitted that total agriculture income of the accused and his mother during the check period is Rs.14,43,337-00. In the written argument the learned counsel for the accused has also submitted that total agriculture of wife of accused during the check 141 SPL.C.C.79/2011 period was Rs.6,44,405-00. As already discussed in detail, though the accused has contended as to additional agricultural income , the same is not acceptable one. Though the accused has tried to give plausible explanation regarding his agriculture income submitting that his, his mother's and his wife's agriculture income is much more than the income taken by the investigation officer, he could not succeed in his effort. The documentary evidence produced by the accused to prove his contention about his agriculture income is not satisfactory and not trustworthy, because they are not credible documents. In a decision reported in (2004) 1 SCC 691 which arose between State of M.P. v/s Awadh Kishore Gupta, the Hon'ble Supreme Court has held that the accused has to account satisfactorily for the money received in his hand and satisfy the court that his explanation was worthy of acceptance. In this case, the explanation offered by the accused as to receipt of total agriculture income of Rs.20,87,742-00 by him, his mother and by his wife found to be unbelievable and baseless. There are no acceptable evidence in support of the claim of the accused with regard to the agriculture income. Apart from that, the accused has not intimated the acquisition of some agriculture properties and agriculture income to the department as required as per Karnataka Civil Service (Conduct) Rules applicable to him. Therefore, the accused could not comply the requirement of 'known source of income' as provided under explanation to Sec.13(1)(e) of the PC Act.
77. It is also to be noted that admittedly, the accused was found to had been purchased huge agriculture properties, sites and made huge expenses. The accused being a Second Division Assistant, it is highly 142 SPL.C.C.79/2011 un-imaginable to purchase sites and huge agriculture properties that too without intimating the said amount to his higher authority as required under the Rule applicable. The explanation offered by the accused as to acquisition of properties, sites and earning such a huge agriculture income is neither plausible nor satisfactory. The explanation offered by the accused as to agriculture income and income to purchase sites and agriculture properties is not at all inspiring the confidence of the court and on the other hand, the same is found to be unworthy of credence and totally untrustworthy.
78. The cross-examination of PW-16 shows that the learned counsel for the accused tried to make out the case that some of the properties were purchased by wife of the accused and some of the properties are in the name of his mother, hence the accused is not accountable for those assets. In this regard the learned counsel for the has relied on a decision of the Hon'ble Supreme Court reported in (2006) Supreme Court Cases 420, which arose between DSP, Chennai v/s K. Inbasagaran. In this decision the Hon'ble Supreme Court has held that '....when there is joint possession between the wife and husband, or father and son and if some of the members of the family are involved in amassing illegal wealth, then unless there is categorical evidence to believe, that this can be read in the hands of the husband or as the case may be, it cannot be fastened on the husband or head of family...' But, in the case on hand, this court has held that wife, mother and accused were residing in joint family and cultivating the agricultural properties jointly. This fact is further strengthen by the claim of the accused who 143 SPL.C.C.79/2011 urged to take agricultural income of his wife and mother to calculate the income of the accused. Further, possession of pecuniary resources or property disproportionate to his know n sources of income may be his or of anyone on his behalf. In this case, except salary income of the accused and agriculture income of accused, his wife and mother, there was no any other sources of income to the family of the accused. The accused himself claims to have consider agriculture income of his wife and mother along with his income to calculate Disproportionate Assets. Further, after perusal of entire evidence on record, this court has came to know that wife of the accused did not have enough agriculture income to purchase sites and agirculture properties. Apart from this, the accused has not satisfactorily explained the assets which has been found in his name and in the name of his wife do not belong to him and that they were purchased by his wife out of her independent income. The accused has also failed to show that the amount of expenditure of his family borne by somebody else. Therefore, this court has fastened assets of wife of accused and expenditure of the family on the accused.
79. It is also pertinent to note that the Prevention of Corruption Act, 1988 was amended w.e.f. 26.07.2018 with regard to various provisions of the said Act. The amendment was also effected in respect of Section 13, prior to the amendment, under Section 13, there was sub- clause (a) to (e) to clause 1 of Section 13 and there was one explanation. However, after amendment, Section 13(1) has contained only two sub- clauses and it also appended with two explanations. In explanation 2, the expression 'known source of income' was defined as 'income received 144 SPL.C.C.79/2011 from any lawful source'. But earlier to the amendment, the known source of income was defined as 'income received from lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant'. But, by virtue of the amendment, intimation of the receipt of such income is departed with. Even if that benefit has to be given to the accused, then also, the accused has failed to show the lawful sources for the disproportionate assets possessed by him during the check period by giving satisfactory account for the same.
80. Thus, considering the oral and documentary evidence on record meticulously under the facts and circumstances of this case, I have no hesitation to hold that the accused has miserably failed to establish that the additional assets possessed by him to his known source of income is from the known source of income received from lawful source. The accused has totally failed to account for additional amount amassed by him to his known source of income and thereby failed to discharge his onus towards disproportionate amount possessed by him. Therefore, it is clear that the prosecution has established the criminal misconduct of the accused beyond reasonable doubt as required under law.
81. The aaccused has also taken an another contention that his wife had borrowed loan from her mother and her mother had purchased site No.309 of Talaghattapura village and 10 guntas and17 guntas of land in Sy.No.155 in the name of his wife. In this regard, the accused has 145 SPL.C.C.79/2011 relied on a decision of Hon'ble Supreme Court repoprted in (1999) 6 Supreme Court Cases 559, which arose between P. Nallammal & Anr., v/s State represented by Inspector of Police. In this decision, the Hon'ble Supreme Court has held that 'if the public servant satisfies the court that the excess wealth possessed by him is attributable to the dowry amount which he received from the father-in-law of his son, the public servant is not liable to be convicted under the aforesaid clause'. In the case on hand, the accused has not placed any amount of evidence at least to probabilize his contention that his wife had borrowed loan from her mother or that her mother had paid consideration amount to purchase the agriculture properties. Admittedly, the amount said to be borrowed by wife of the accused or payment of consideration by mother of his wife has not been intimated in annual report of his assets and liabilities. Any income, even though received from a lawful source, cannot likewise be considered for inclusion in the expression "known source of income" for the aforesaid purposes, if the receipt of such income has not been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
82. The accused has also taken another contention that his wife was doing stamp vending business in CMM court premises and by doing stamp vending she was also having independent income. No doubt, the documents produced by the prosecution show that wife of the accused was having savings bank account in Karnataka Bank Limited, C.M.M. Court branch, Bengaluru. The accused/DW-1 has deposed that when he was in Judicial Service, his wife was doing stamp 146 SPL.C.C.79/2011 vending business in Court premises. At para-71 of his evidence, DW-1 has admitted that in his statement of assets and libilities he has not disclosed that his wife was working as a Stamp Vendor. But DW-1 has denied suggesstion of the learned special public Prosecutor that as his wife was not working as Stamp vendor, he has not declared in his statement of assets and liabilities. It is pertinent to note that at para No- 70 of his evidence, DW-1 has stated that his wife had obtained license to do stamp vending business in Court Premises. But he has not produced any amount of evidence to prove that his wife was having license to do stamp vending business. Further, though wife of the accused has been examined as DW-5, she has not even deposed that she was working as a stamp vendor. Admittedly, the accused has not intimated about income of his wife from stamp vending busines in his report of annual assets and liabilities. Apart from this the accused has also not specifically stated what was the income of the his wife from stamp vending business during the chek period.
83. One more legal aspect raised by the learned counsel for the accused is that the complaint is based on the voluntary statement given by the accused before the police in another case, voluntary statement of accused cannot be used as a weapon to make allegations agains him, the voluntary statement mentioned in the complaint is concocted one, there are criminal cases registered against the accused, which are pending for disposal, to create motive in other criminal cases, this complaint has been filed. The learned counsel for the accused has further argued that admittedly the accused was working in 147 SPL.C.C.79/2011 M.M.T.C., Court, but the Prosecution has not produced work-order before the Court, the complainant has made blanket allegations and there is no reason to say that the accused was having disproportionate assets to his known source of income. The learned counsel for the accused has repeatedly argued that without obtaining search warrant, the Investigating Officer has searched the Government quarters, which is against to law. The learned counsel for the accused further submitted that after lodging of the complaint, no preliminary inquiry was conducted and no Source Information Report was submitted, but only on the basis of the complaint, case has been registered, which is against to law.
84. The prosecution has got examined Registrar of City Civil Court as PW-1, who is the complainant in this case and he got marked the complaint as Ex.P-1. As argued by the learned counsel for the accused, in the evidence of PW-1 there is an allegation of misappropriation of fine amount collected by the accused in traffic cases and KP Act cases. Further, as contended by the learned counsel, no work order for entrusting collection of fine amount to the accused has been produced. In the cross-examination, PW-1 has admitted that he has not seen the work entrustment order of the accused before giving complaint. As argued by the learned counsel for the accused, no work order is produced in order to show that the accused was entrusted with the work of collecting fine amount. But, in the present case the allegation made against the accused is not misappropriation of the amount, the specific allegation is that during the check period the 148 SPL.C.C.79/2011 accused was found with possession of disproportionate of assets. No doubt, even in the complaint (Ex.P-1), the complainant has mentioned about misappropriation of fine amount in MMTC court, but a careful reading of Ex.P-1 makes it clear that on the basis of report of Assets and Liabilities submitted by the accused, the complainant came to know that the accused had purchased properties, vehicles without permission of the higher authorities and the assets declared by the him in his assets and liabilities statement are quite disproportionate to his known source of income. When the complaint was given making allegation of having possession of disproportionate assets, question of work entrustment order does not arise. When that being the averments of the complainant, the argument of the learned counsel for the accused that the complaint discloses no offence has no meaning.
85. Further argument of the learned counsel for the accused is that without obtaining search warrant, the Investigating Officer has searched the Government quarters, which is against to law. PW-14 has deposed that he had obtained search warrant from special court for search of house of the accused bearing No.81/2. PW-11, who is an independent mahazar witness has clearly deposed that as they were informed that house No.81/2 was locked and accused was residing in Rajajinagar Government Quarters, they went to that Government Quarters, after they disclosed their identity to the daughter of accused, they came to house No.81/2 along with daughter of accused and conducted search. PW-14, who is an investigating officer and who 149 SPL.C.C.79/2011 conducted search, has deposed that after he took search warrant he got information that house No.81/2 was locked, hence they went to Government Quarters No.N13 in Rajajinagar, in that house accused was not there, but daughter of the accused and his son-in-law were there, as they have agreed they have searched the house but no documents were found in that house. Admittedly, no search warrant was taken to search Government Quarters where accused was residing, but PW-14 had searched the Government Quarters where accused was residing. Admittedly, during search of Government Quarters, nothing was seized, if the investigating officer had seized anything in the Government Quarters, it would be against to law, but though the investigation officer has searched the Government Quarters, but nothing was seized, therefore search will not prejudice to the accused in any way. PW-14 further deposed that thereafter they went to house No.81/2 along with daughter of accused and conducted search and seized some documents, for which investigating officer had search warrant.
86. The learned counsel for the accused has also argued that after lodging the complaint, no preliminary inquiry was conducted and no Source Information Report was submitted, but only on the basis of the complaint, case has been registered therefore, it is abuse of process of law and hence the accused is entitled for acquittal. Admittedly, the offence under Section 13 (1) (e) of PC Act is a cognizable offence. As per Section 154 of Cr.P.C., police is bound to register the FIR if the alleged offence is cognizable in nature. Apart from this, the Hon'ble 150 SPL.C.C.79/2011 Apex Court in Criminal Appeal No. 1045 of 2021, which arose between Central Bureau of Investigation (CB) and Anr., v/s Thommandru Hannah Vijayalakshmi @ T. H. Vijayalakshmi and Anr., has relied on its own judgments given in Lalita Kumari v/s Govt. of UP and others, Yashwant Sinha v. CBI, Charansingh v. State of Maharashtra and The State of Telangana v. Managipet, and held that: '.....In view of the above discussion, we hold that since the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the Cr.P.C., PC Act or even the CBI Manual, for this Court to issue a direction to that affect will be tantamount to stepping into the legislative domain'. It is further held that: '.....As clarified by this Court in Managipet (supra), the purpose of Lalita Kumari (supra) noting that a Preliminary Enquiry is valuable in corruption cases was not to vest a right in the accused but to ensure that there is no abuse of the process of law in order to target public servants.....'. As aforesaid, in the present case the averments made in the complaint discloses cognizable offence and on the basis of statements of assets and liabilities of accused, the complaint was given by the Registrar of the City Civil Court making allegation of possession of disproportionate assets by the accused. Therefore, by applying the decisions of the Hon'ble Supreme Court to the case on hand, I decline to accept the argument of the learned counsel for the accused.
87. The learned counsel for the accused further contended that the Investigating Officer has not investigated what was the occupation 151 SPL.C.C.79/2011 and income of the parents of wife of the accused. When the accused has taken the contention that the parents of wife of the accused have paid entire consideration amount to purchase properties, the burden is on the accused to prove that parents of his wife had paid consideration amount. In case of CSD Swamy Vs. The State (1960 SCR (1) 461), the Hon'ble Supreme Court has held that the expression 'known sources of income must have reference to sources known to the prosecution on a thorough investigation of the case' and that it could not be contended that 'known source of income meant sources known to the accused. Therefore, the Investigating Officer need not investigate about the sources of income of parents of the accused, because investigating officer could not expect payment of consideration amount by the parents of wife of the accused. If really the parents of wife of the accused have paid consideration amount or they have purchased the properties in the name of wife of accused as contended by him, the burden on him to probabilize it before the court. As stated earlier, though the accused has contended that the property in Sy.No.27/3 of Mudanahalli village, site No.309 in Judicial Layout and lands in Sy.No.155 were purchased by his wife out of her own income and out of the consideration amount paid by her parents, no evidence is forthcoming in this regard.
88. Thus, considering all these aspects in detail very meticulously, this court is of the considered opinion that the prosecution has proved beyond reasonable doubt that the accused being a public servant, during the check period commencing from 152 SPL.C.C.79/2011 09.06.1982 to 01.05.2009 was found in possession of disproportionate assets of worth Rs.7,78,419-00 i.e., 98.14% to his known source of income, for which he could not satisfactorily account. As the accused failed to satisfactorily account for his disproportionate assets, he would be held guilty of offence under Section 13(1)(e) and punishable under Section 13(2) of the PC Act and accordingly, point No.3 is answered in the affirmative.
89. Point No. 4:- For the reasons given and discussion made above, I am of the considered opinion that the prosecution has successfully proved allegation of criminal misconduct against the accused and the accused has failed to give satisfactory explanation for having disproportionate assets to his known income. Accordingly, I proceed to pass the following;
ORDER Acting under Section 235(1) of the Cr.P.C., the accused Sri. Rangaswamy M.R., is found guilty of the offence punishable under Section 13(1) (e) R/w.
Section 13 (2) of the Prevention of Corruption Act, 1988 and is convicted for the said offence.
The bail bond of the accused and that of his surety executed stands cancelled.
153SPL.C.C.79/2011 Sentence will be passed after hearing arguments of both sides.
(Dictated to the Stenographer Grade-I directly on the computer, corrected and then pronounced by me in the Open Court on this the 7 th day of January, 2025) (NANDEESHA. R.P) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ORDERS REGARDING SENTENCE
1. Accused is produced through video conference. The learned counsel for the accused and learned public prosecutor are physically present before the Court.
2. I have Heard the arguments of learned counsel for the accused and learned Public Prosecutor on question of sentence.
3. The learned counsel for accused has submitted that the accused is retired from service, he is aged about 69 years, the accused has suffered due to delay in conclusion of trial for 14 to 15 years, the accused is regular in attending the court and he has no antecedents of any criminal activities and he has to look after his old age mother. The learned counsel for the accused has also submitted that though the charge sheet make an allegation of 400% disprportionate asset, court finds that it is 98.14% and the 154 SPL.C.C.79/2011 minimum sentence for the offence is one year, therefore by considering age and circumstances, lenient view may be taken in the matter of sentence.
4. On the other hand, the learned public prosecutor has submitted that the accused has committed heinous crime of corruption, which is affecting entire society, object of the Act has to be taken into consideration in imposing punishment, the object of the Act is to curb the corrption. He further argued that regular appearance of the accused and his conduct before the court are not a ground to show leniency in imposing punishment. On these grunds he urged to impose maximum punishment.
5. In State Vs. Parthiban reported in (2006) AIR SCW 5267 and in N. Bhargavan Pillai, dead by Lrs & Anr v/s State of Kerala reported in AIR 2004 SUPREME COURT 2317, the Hon'ble Supreme Court has ruled out the application of provisions of the Probation of Offenders Act.
6. The Hon'ble Apex Court in K.C.Sareen Vs. CBI, Chandigarh, (AIR 2001 SC, 3320) held that "The legal position, therefore, is this: Though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance". It is further held that "Corruption 155 SPL.C.C.79/2011 by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings..."
7. The principles of above decision of the Hon'ble Apex Court are applicable to the case on hand. After hearing the arguments of both sides and also the judgment of the Hon'ble Supreme Court, this court is of the considered view that it would be just and proper to award reasonable, but adquate sentence of imprisonment so that ultimate purpose of justice will be served.
8. As already stated, the accused is convicted for the offence punishable under Section 13(2) of the PC Act. Since the 156 SPL.C.C.79/2011 check period is from 09.06.1982 to 30.04.2009, the penal provisions of Section 13 applicable to the accused is prior to the amendment of 2014 to the PC Act. Prior to the amendment of 2014, the offence under Section 13(a) to (e) was punishable under Section 13(2) with an imprisonment for a term, which shall not be less than 1 year but it may extend to 7 years and shall also be liable to fine.
9. The mitigating circumstances expressed by the accused persons are that they are aged persons having health issues and he has to taken care of his old age mother. The aggravating circumstances are that accused being a public servant that too a court employee, by abusing his official position, accumulated disproportionate assets to his known source of income, which is affecting the society adversely.
10. On going through the penal provision of Section 13, it is clear that minimum sentence of imprisonment has been fixed by the Legislation itself. Therefore, the said minimum sentence of imprisonment has to be imposed on the convicted accused and it may extend upto seven years as provided. So far as the fine is concerned, the minimum or maximum fine amount is not fixed and it is given to the discretion of the court. However, Section 16 of the PC Act, specifies as to the matters to be taken into consideration for fixing the fine. As provided under Section 16 of the PC Act, this court has to take into consideration the pecuniary resources or the property for which the accused person is unable to account satisfactorily. In other words, the fine to be 157 SPL.C.C.79/2011 imposed should have nexus with the disproportionate asset held by the accused. In this case, the accused is found to be in possession of the disproportionate asset to the extent of Rs.7,78,419-00 i.e., 98.14% to his known source of income. As submitted by the learned Public Prosecutor, it is true that the sentence to be imposed shall not be plea bite in nature and it must be adequate and serve the purpose of the punishment. The offence committed by the accused is also having its effect on the society as he was a court employee during the check period. At the same time, the mitigating circumstances are also required to be taken into count.
11. After considering facts, circumstances, nature and gravity of the offence and also keeping in mind the judgment of the Hon'ble Apex Court in the case of K.C.Sareen Vs. CBI, Chandigarh, I proceed to pass the following;
ORDER Acting under Section 235(2) of the Cr.P.C., the accused is sentenced to undergo simple imprisonment for a period of 5 years and also for payment of fine of Rs.7,79,000-00. In default of payment of the fine amount, the accused shall undergo simple imprisonment for a period of 10 months for the offence punishable under Section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1988.
158SPL.C.C.79/2011 The undergone period of detention by the accused if any, during investigation of this case shall be set off against the sentence of imprisonment, except default clause.
Free copy of this judgment be supplied to the convicted forthwith.
(Dictated to the Stenographer Grade-I directly on the computer, corrected and then pronounced by me in the Open Court on this the 8 th day of January, 2025) (NANDEESHA. R.P) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.
ANNEXURE List of witnesses examined for the prosecution:
PW1 Padmaraja N. Desai
PW2 L. Kantharaju
PW3 Chandrashekar
PW4 Ramakrishna K
PW5 M. Chandrashekaraiah
PW6 M.J. Shobha
PW7 Somashekar
PW8 Chandrashekar
PW9 Rudraswamy. S
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PW10 C. Narasimhaiah
PW11 Meenakshi
PW12 Suryaprakash
PW13 A. Bhagya
PW14 B. Parameshwarappa
PW15 H.S. Manjunath
PW16 K. Ravishankar
PW17 K. Rajesh Kannan
PW18 Makkanaiah
List of documents exhibited for the prosecution:
Ex.P.1 Service Register of the accused in MMTC Court Ex.P.2 Assets and Liability Statements of the accused Ex.P.3 Expenses incurred for rearing of dogs Ex.P.4 Construction costs of the building in Mudanahalli village Ex.P.5 Income of agricultural properties Ex.P.6 Income of agricultural properties Ex.P.7 - 9 Membership of the wife of accused in Mudanahalli Milk Producers' Women Co-operative Society Ex.P.10 Receipt of rent and advance amount from the accused Ex.P.11 - 13 Water and electricity bills Ex.P.14 - 15 Mahazar in Mudanahalli house Ex.P.16 Issuance of Encumbrance certificate and sale deed Ex.P.17 Expenditure on food and domestic expenditure Ex.P.18 Electricity bill Ex.P.19 - 20 Mahazar in house No.81/2, Bengaluru Ex.P.21 - 24 FIR and Order of Authorization, receipt of search warrant, search Mahazar, seizure of documents and 160 SPL.C.C.79/2011 receipts, Assets and Liabilities Statement of accused and other documents Ex.P.25 - 27 Receipt of sale deed and other documents, salary details of accused Ex.P.28 Salary particulars of accused Ex.P.29, 57, Receipt of documents from Mudanahalli Gram 59-61 Panchayat, receipt of documents regarding payment of education fee, documents about vehicles, property documents, payment of rent, expenses incurred for rearing of dogs and other expenses said to be made by the accused, verification of documents and filing of charge sheet Ex.P.58 Salary particulars of accused Evidence Adduced On Behalf Of The Defence:
DW1 M.R. Rangaswamy DW2 Smt. Shuba Hemanth DW3 Prasanna Kumar DW4 Gowramma DW5 G.B.Gayitramma DW6 L.D.Akhilan
Documents marked on behalf of the defence:
Ex.D.1 Sale deed dated 15.03.1999
Ex.D.2 Sale deed dated 27.09.2001
Ex.D.3 RTC Sy.No.82
Ex.D.4 M.R. No.17/2007-08
Ex.D.5 Tax demand register
Ex.D.6 No objection certificate
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Ex.D.7 Photos
Ex.D.8 Receipts dated 24.01.2002 and 25.08.1999
Ex.D.9 Proof of agricultural income
Ex.D.10 Statement of residential quarter's HRA deducted Ex.D.11 Certificate of quarters allotment Ex.D.12 Recovery towards rent of accused Ex.D.13 Form of handing over the quarters Ex.D.14 Letter given by MMTC-II Ex.D.15 Pay slip of February-2019 Ex.D.16 Certified copy of the application and G-Tree Ex.D.17 Receipt for having paid rent Ex.D.18 Panchayath Palupatti Ex.D.19 RTC's extracts Ex.D.20 Letter issued by Coromandel Sugars Limited Ex.D.21 Passbook issued by ICL Sugar Limited Ex.D.22 M.R. Ex.D.23 RTC's extracts Ex.D.24 M.R. Ex.D.25 RTC's extracts Ex.D.26 Copy of Consent Deed Ex.D.27 M.R. Ex.D.28 Pay slip Ex.D.29 Receipt having paid rent Ex.D.30 Certified copy of assessment register Ex.D.31 Certified copy of assessment register Ex.D.32 Revenue paid receipt Ex.D.33 Certified copy of assessment register Ex.D.34 Certified copy of assessment register Ex.D.35 RTC extract 162 SPL.C.C.79/2011 Ex.D.36 RTC extract Ex.D.37 Letter given by the accused Ex.D.38 Letter given by Coromandel Sugars Limited Ex.D.39 Acknowledgment (NANDEESHA. R.P) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.163
SPL.C.C.79/2011 Accused is produced through V.C. at 3.30p.m. from central prison. Learned counsel for the accused and the learned P.P. are physically present.
(Order on sentence pronounced in the Open Court vide considered detailed separate Order) ORDER ON SENTENCE Acting under Section 235(2) of the Cr.P.C., the accused is sentenced to undergo simple imprisonment for a period of 5 years and also for payment of fine of Rs.7,79,000-00. In default of payment of the fine amount, the accused shall undergo simple imprisonment for a period of 10 months for the offence punishable under Section 13(1)(e) r/w Section 13(2) of the Prevention of Corruption Act, 1988.
The undergone period of detention by the accused if any, during investigation of this case shall be set off against the sentence of imprisonment, except default clause.
Free copy of this judgment be supplied to the convicted forthwith.
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Office to issue conviction warrant
accordingly.
(NANDEESHA. R.P)
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA),
Bengaluru.