Bangalore District Court
State Of Karnataka vs Mr.M.R.Maheshwaran on 19 July, 2017
IN THE COURT OF THE XXIII ADDL. CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE, BENGALURU
URBAN DISTRICT, BENGALURU CITY. (CCH-24)
Dated this the 19th day of July, 2017
PRESENT
SHRI GOPAL, B.Com.LL.B.,
XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
AND SPECIAL JUDGE, BENGALURU URBAN
DISTRICT, BENGALURU.
SPL.C.C. NO.82/2004
COMPLAINANT: State of Karnataka
represented by Deputy
Superintendent of Police, City
Division, Karnataka
Lokayuktha, Bengaluru.
(By Sri D. Ramesh Babu,
Special Public Prosecutor)
V/s
Accused: Mr.M.R.Maheshwaran, Retired
Assistant Commissioner of
Police, Now residing at No.47,
3rd Main Road, 1st Cross, II
Stage, Domlur, Bengaluru City
Native of No.1472,
Narayanashastri Road, Mysuru
01.
(By Sri.C.G.Sundar, Advocate)
2 Spl.C.C.82/2004
JUDGMENT
1. The Deputy Superintendent of Police, City Division, Karnataka Lokayuktha, Bengaluru has submitted the charge sheet against the accused for the offence punishable under section 13(1)(e) read with section 13(2) of The Prevention of Corruption Act, 1988 alleging that the accused has amassed wealth disproportionate to his known source of income worth of Rs 16,19,325.99 paise which is at 121.27% by misusing his official position during the check period 05.02.1969 to 28.01.1999 and committed the alleged offence.
2. Case of the prosecution in brief are that the accused being a public servant joined the services in the police department as Probationary Police Inspector in the year 1969 and worked as Sub Inspector of Police in Davanagere, Chitradurga, Gangavathi and Bengaluru City and he was promoted 3 Spl.C.C.82/2004 and was working as Assistant Commissioner of Police, Ulsooru Gate Sub-Division, Bengaluru City and he was retired as Assistant Commissioner of Police. Based on credible information that the accused amassed wealth illegally, Deputy Superintendent of Police Sri.Nayak has collected the information, documents and source of accumulation of property by the accused. Source Report submitted by the said Deputy Superintendent of Police Sri.S.Nayak and registered the case by the Deputy Superintendent of Police Sri.S.K.Hegde in crime No.4/1999 pursuant to the orders of Superintendent of Police, Karnataka Lokayuktha, Bengaluru dated 28.01.1999. Thereafter, search warrant was obtained by Sri.S.K.Hegde, Deputy Superintendent of Police from the Court on 28.01.1999 and conducted search in the house No.47, Akshaya, 3rd Cross, 3rd Main, Domlur II Stage, Bengaluru and House No.79, Ashraya, situated 8th Main, Avalahalli, Girinagara, Bengaluru and office of 4 Spl.C.C.82/2004 the Assistant Commissioner of Police, Ulsoor Division, Bengaluru and House No.147, 5th cross, 5th Block, KHB colony, Koramangala, Bengaluru and seized records relating to movable and immovable properties. After collecting documents from various departments relating to the property acquired by the accused and his family members and on completion of investigation, Investigating Officer laid the charge sheet against the accused.
3. The accused was secured who represented by his counsel. Copy of the charge sheet was supplied to the accused as contemplated under section 207 of Cr.P.C and the case was posted to hear before charge on 19.05.2004. Order sheet discloses that on 14.03.2007 after hearing on both side issued summons to the Investigating Officer calling explanation for not considering income derived to the accused in various heads namely the loan of Rs 5 Spl.C.C.82/2004 1,50,000/- availed from the department and the amount derived from the sale of property standing in the name of the wife of the accused. On 03.04.2006, the Investigating Officer presented before the Court and submitted clarification. On 17.12.2009, accused filed an application under section 227 of Cr.P.C for discharge him for the alleged offence. The prosecution has submitted the objections on 27.05.2010. After hearing on both side, the application under section 227 came to be rejected vide order dated 15.03.2012 and on 05.04.2012 my learned predecessor in office has framed charge against the accused for the offence punishable under section 13(1)(e) read with section 13(2) of The Prevention of Corruption Act, 1988. Pursuant to the application of the accused under section 216 of Cr.P.C and no objection of the prosecution, charge was altered by this Court with respect to the income and expenditure, asset possessed by the accused during 6 Spl.C.C.82/2004 the check period from 05.02.1969 to 28.01.1999. Charge was framed read over and explained to the accused for the offence punishable under section 13(1)(e) read with section 13(2) of The Prevention of Corruption Act, 1988 who pleaded not guilty and claimed to be tried.
4. Prosecution to prove the guilt of the accused has examined 19 witnesses as PWs 1 to 19 and got marked documents Exs P1 to P31. After closure of the prosecution evidence, the accused was questioned under section 313 of Cr.P.C who denied the incriminating circumstances appearing against him as false and has submitted his statement under section 313 of Cr.P.C, but he has not chosen to adduce defence evidence in support of his contention.
5. Learned counsel for the accused besides addressed his arguments has submitted the written 7 Spl.C.C.82/2004 arguments. The learned Public Prosecutor besides addressed his arguments has submitted written arguments and heard the reply arguments on both sides.
6. Having heard the arguments on both sides and taking into consideration of the evidence on record coupled with the documents, the following points arise for consideration :
1. Whether the prosecution proves beyond all reasonable doubt that the accused being public servant holding the post of Assistant Commissioner of Police in Ulsooru Sub-
Division, Bengaluru City and during his tenure as public servant for a check period from 05.02.1969 to 28.01.1999 acquired properties and assets disproportionate to his known source of income in his name and in the name of his family members to the extent of Rs 16,19,326.00 which is at 121.27% for which the accused has not satisfactorily account and thereby committed an offence punishable 8 Spl.C.C.82/2004 U/Sec.13(1)(e) read with section 13(2) of Prevention of Corruption Act, 1988?
2. What order?
7. My findings on the above points are as:
Point No.1: In the affirmative Point No.2: As per final order, for the following REASONS
8. POINT NO.1: It is the case of the prosecution that the accused being a public servant holding the post of Assistant Commissioner of Police, Ulsooru Sub-Division, Bengaluru City has accumated asset worth Rs 16,19,236/- which is at 121.27% disproportionate to the known source of income during the check period from 05.02.1969 to 28.01.1999 and he has not satisfactorily accounted about the possession of the property illegally.
9. The accused has not disputed that he being the public servant holding the post of Assistant Commissioner of Police in Ulsooru City Division, 9 Spl.C.C.82/2004 Bengaluru City at the time of raid conducted by the Karnataka Lokayuktha police, City Division, Bengaluru. The charge sheet was submitted after retirement from the service by the accused and hence the question of sanction to prosecute the accused after his retirement does not arise.
10. Now, coming to the case of the prosecution that the accused has accumulated the asset disproportionate to the known source of income during the check period from 05.02.1969 to 28.01.1999. According to the prosecution, during the check period, the total asset of the accused is Rs.18,49,893.16 pase and the expenditure of the accused is Rs.11,04,707.49 paise and the total asset and expenditure of the accused and his family members is Rs 29,54,600.56 paise and the income of the accused is Rs.13,35,274.57 paise and disproportionate asset to the known source of income 10 Spl.C.C.82/2004 is Rs.16,19,326/- paise which is 121.27%. It is the specific case of the prosecution that the accused has amassed wealth in his name and in the name of his family members illegally during the check period.
11. On reading of the decision reported in 1991 (3) SCC page 6555 in K. Veeraswamy V/s Union of India wherein their Lordships have held as under:
"Statutory evidence which must be proved by the prosecution, it is for the prosecution to prove that the accused or any person on his behalf has been in possession of pecuniary resource or property disproportionate to his known source of income. When that onus is discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionate of the properties possessed by him."
11 Spl.C.C.82/2004
12. In view of the said decision, the initial burden to is on the prosecution to prove that accused has amassed wealth in his name and in the name of his family member. If the initial burden is not discharged by the prosecution, the onus does not shift to the accused to offer his explanation as to how he could have been in possession of either directly or through some other members of his family in possession of the property disproportionate to the known source of income.
13. The prosecution to bring home the guilt against the accused has relied upon the oral evidence of PWs 1 to 19 and Exs P1 to P31. PW 1 Sri. S.P.Nayak working as Deputy Superintendent of Police, Karnataka Lokayuktha, Bengaluru has deposed with respect to the generated source report with regard to the accumulation of the property and amassed wealth by the accused and submitted source 12 Spl.C.C.82/2004 report Ex P1 to the Superintendent of Police, Karnataka Lokayuktha, Bengaluru Urban on 28.01.1999. In the cross examination except bare denial, nothing has been elicited from the mouth of PW 1 with regard to the preparation of source report by the PW 1.
14. PWs 2 and 3 are the panch witnesses and PW 15 Deputy Superintendent of Police, Karnataka Lokayuktha have deposed about the conducting of search in the residential house No.47, situated at Domlur 2nd Stage, 3rd Main, Bengaluru and House No.47, situated at Domlur 2nd stage which are the residential house of A.C.P and seized records. PWs 4 and 6 have deposed about the conduct of the search in the residential house Ashraya No.79, situated at 8th Main, Avalahalli, Girinagara, Bengaluru and calculated approximate price with regard to the house hold articles, gold and silver articles and electronic goods 13 Spl.C.C.82/2004 therein. PW 5 and PW 9 are the panch witnesses and P.W.14 S.K.Hegde Deputy Superintendent of Police, Karnataka Lokayuktha, City Division, have deposed about the conduct of mahazar at Ex P5 in the Canara Bank locker of the accused. PWs 7, 10 are the panch pwntesses and PW 13 Sri.A.Vasantha Kumar, Deputy Superintendent of Police, Karnataka Lokayuktha, Bengaluru have deposed about the conduct of mahazar at Ex P6 in the first floor of the office of the Ulsooru police station and drawn the mahazar at Exs P6 and P8 therein. The way of cross examination by the accused, proves that he has not disputed the conduct of the mahazar in his residential houses and Canara Bank lockers and Ulsooru police station of the accused. Thus, the prosecution has proved the mahazars at Exs P2 to 6 and P8 respectively.
14 Spl.C.C.82/2004
15. The prosecution examined PW 8 A.Ramesh, Assistant Executive Engineer, Technical Wing, Karnataka Lokayuktha, Bengaluru Urban, who deposed that he visited the building at Domlur on 26.03.1999 and building at Avalahalli on 06.04.1999 and estimated the value of the building. According to PW 8, the cost of construction of the building at Domlur is Rs 5,77,552.00 and cost of construction of building at Avalahalli is Rs 6,19,494.00. In the cross examination, he admitted that if the accused constructed the building under his personal supervision, he has to given rebate of 10% of the total cost of the building. But the accused has not suggested that under his supervision, the above two buildings were constructed. Further the accused has not stated in his statement under section 313 Cr.P.C that the building is constructed under his supervision. In the absence of evidence with regard to the construction of the building under his 15 Spl.C.C.82/2004 supervision, the accused is not entitled for 10% rebate for the construction of the building. Thus, the prosecution proves the cost of construction of the Domlur and Avalahalli building cited supra.
16. PW 11 has deposed with regard to the estimated domestic expenditure of the accused and his family members and submitted the report at Ex P9. The accused has not disputed the report at Ex P9 in the course of cross examination. In the absence of specific denial, it amounts to admitting the report submitted by PW 9. Accordingly, I hold that the prosecution has proved the Ex P9 report submitted by PW 9 with regard to the domestic expenditure of the accused and his family members during the check period.
17. It is relevant to mention here the particulars of the income and assets of the accused during the 16 Spl.C.C.82/2004 check period from 05.02.1969 to 28.01.1999, which is mentioned as hereunder:
INCOME OF THE ACCUSED DURING THE CHECK PERIOD FROM 08.02.1969 TO 28.01.1999 Sl. No Particulars Amount Rs. Ps 1 Salary of the accused 7,43,065.57 during the check period (Volume No.7. Pages 1 to
42) 2 Accused has received the 3,91,600.00 rents from the house No.47, 2nd Stage, Dommalur, Bengaluru (Volume No.7 Pages 61 to
104) 3 Interest from SB account 6.00 (Volume 5 Pages 1 and 2) 4 Interest Rs 250/- taken to 250.00 Vijaya Bank Audugodi (Volume 5 pages 3 to 5) 5 Interest derived from S.B. 1,873.00 account in Syndicate Bank, Indiranagara to the wife of the accused (Volume 5 pages 12 to16)
17 Spl.C.C.82/2004 6 Interest derived from S.B 15.00 account Canara Bank, Gangavathi branch to the accused (Volume 5 pages 10 and
11) 7 Prizes amount to the 3014.00 accused (Volume 8 page 1 to 62) 8 Interest from LIC 3,400.00 (Volume 7 pages 151 and
152) 9 Salary of demonstrator 3,000.00 earn by the accused prior to the joining the police department. Rs 6240/-
out of it, he saves Rs 3000/-
(Volume 2 page 82) 10 LIC premium 1,500.00 (Volume 7 page 154) 11 Sale consideration amount 1,95,000.00 (Volume 7 Pages 43 to
50) 12 Interest to the SB account 36.00 in S.B.M M.G.Road Mysuru to the accused.
13 Interest from the FD from 45.00 post office to the accused 14 Total 13,35,274.57 18 Spl.C.C.82/2004 ASSETS OF THE ACCUSED DURING THE CHECK PERIOD FROM 08.02.1969 TO 28.01.1999 Sl. Particulars Amount No Rs. Ps 1 Accused purchased site 23,410.00 from BDA for Rs 23,410/-
(expenses for registration and stamp Rs 7468/-) (Volume No.4. Pages 1 to
10) 2 Valuation of the building 5,77,552.00 and building construction as per valuation report of PW 8 (Volume 2 Page 42) 3 Accused purchased land 68,000.00 bearing Sy.No.32/2 measuring 2.04 acres at Thimmanayakana Agrahara Mysure Taluk (Volume No.4 Pages 13 to
28) 4 Accused purchased site 3,50,000.00 No.156, Hulimavu village in the name of his wife & receipt of advance sale consideration amount of (Volume No.4 Pages 29 to
30).
5 Balance amount of Rs 120.55 120.55 in Syndicate Bank Contonment Branch in the name of the accused (Volume No.5 page Nos 1 and 2 ) 19 Spl.C.C.82/2004 6 Balance amount of Rs 1,108.23 1108.23 paise in the SB account Indian Bank, Audugodi branch of accused (Volume No.5 Pages 3 to
5) 7 Siddeshwara Co-operative 35.00 Bank. Balance amount (Volume No.5 pages 6 to
8) 8 Balance amount in SB 1,750.00 account, Karnataka State Co-operative Bank (Volume 5 pages 8a and 8b) 9 Balance amount in Canara 1,042.08 Bank in account of the accused (Volume 5 page 9) 10 Balance amount in Canara 140.76 Bank, Gangavathi branch of the accused (Volume 5 Pages 10 and
11) 11 Balance amount of the 620.00 accused in Syndicate Bank, Indiranagara (Volume 5, pages 12 to 16) 12 Balance amount in SB 275.80 account State Bank of India, M.G. Road in the name of the accused (Volume 5 pages 17 and
18) 20 Spl.C.C.82/2004 13 Balance amount in the 1,253.00 S.B.I J.C.Road (Volume 5 page 19) 14 Share certificate amount of 40,000.00 Rs 40,000/- stands in the joint name of the accused and his wife (Volume 5 page 20) 15 Cumulative deposit receipt 10,000.00 of accused and his wife (Volume 5 page 20) 16 Purchase of Maruthi 800 85,369.69 car by the accused from Mandovi Motors Bengaluru (Volume 5 pages 21 to 24) 17 Purchase of TVS moped by 9,000.00 he accused its value (Volume 3 page 68) 18 House hold articles amount 6,64,115.00 of the accused in the residential house of the accused (Volume 1 pages 29 to 47) 19 Volume 5 (Value of gold articles not taken) because the golden articles are not available at the time of search 20 Site deposit amount in 16,101.50 Basaveswara House building Co-operative society in the name of the wife of the accused (Volume 5 pages 34 to 43) Total 18,49,893.16 21 Spl.C.C.82/2004
18. The accused has not disputed that his assets has been calculated by the Investigating Officer during the check period comes to Rs 18,49,893.16 paise and expenditure of Rs 11,04,707.49 paise. Accused wants to be added the loan availed by him, rents received by him and so also the sale consideration amount to be included in his income. The accused has submitted his statement under section 313 of Cr.P.C while recording the statement, stating that the loan of Rs 1,50,000/- availed by him from H.D.F.C. Bank; an amount of Rs 2,00,000/- received by his wife through agreement dated 07.11.1996; advance sale consideration of Rs.2,00,000/- received by his wife from Narasimhaiah as advance under sale agreement dated 07.11.1996; sale consideration amount of Rs 4,00,000/- out of the agreement amount of Rs 5,75,000/-; agricultural income raised during the check period by the wife of the accused to the extent of Rs 6,42,117/-; GPF loan 22 Spl.C.C.82/2004 amount of Rs 1,10,000/- received by the accused; Rs.3,75,000/- received by his wife of the accused as advance has been returned to her, has to be included in the income of the accused.
19. Learned counsel for the accused has argued that PWs 16 and 17 who partially conducted investigation have admitted the aforesaid loan availed by the accused from the H.D.F.C, G.P.F and rental amount received by the wife of the accused, advance amount and sale consideration amount in their oral evidence. Therefore, said admission has to be taken into consideration and has to be added to the aforesaid income of the accused. After adding the said income, there is no asset disproportionate to the known source of income made out by the prosecution and the accused is entitled for acquittal.
20. On the other hand, the learned Public Prosecutor submits that the accused has not 23 Spl.C.C.82/2004 furnished satisfactory explanation and accounts for having received the GPF loan and HDFC loan, rent received by his wife during the check period and also the agricultural income. In the absence of documents, the Investigating Officer has rightly not considered the aforesaid income and loan. Merely, because PW 16 and 17 admitted the documents shown by the accused in the course of cross examination, it cannot be said that PWs 16 and 17 have admitted the defence of the accused. The entire case was based on the documentary evidence. Under these circumstances, the accused has to furnish the satisfactory accounts for having received the income from agriculture by his wife, sale consideration amount and advance amount under the agreement, during the check period. When he failed to explain the satisfactory account for having received the said income and the documentary evidence placed before the court by the prosecution proves the accused has 24 Spl.C.C.82/2004 amassed wealth disproportionate to his known source of income during the check period and therefore, he is liable to be convicted.
21. According to the accused, he has sought to be added certain other items of income to his income calculated by the Investigating Officer during the check period and since these were disputed by the prosecution, it is necessary to go through the said disputed particulars of the income. The following items sought to be included by the accused to his known source of income. i.e., Loan availed by the accused Rs.1,50,000-00 from the H.D.F.C. Bank Amount received by the wife of the accused under agreement dated 07.11.1996 towards sale Rs.2,00,000-00 consideration Sale consideration amount received by the wife of the accused out of the agreement amount of Rs 5,75,000/- Rs 4,00,000-00 25 Spl.C.C.82/2004 Advance amount received from Narasimhaiah by the wife of the accused for the sale of site under Rs 2,00,000-00 agreement dated 7.11.1996 Agricultural income raised during the check period by the wife of the accused Rs 6,42,117-00 G.P.F loan availed by the accused Rs 1,10,000-00 Return of advance amount received by the wife of the Rs 3,75,000-00 accused
22. According to the accused, the above said items of income are required to be included in his income. Now, I will discuss with the said income seriatim.
23. The first item claimed by the accused to be calculated is agricultural income of Rs 12,84,134/- for a period from 1981 to 1998 and this income has to be included to the income of the accused. On perusal of Volume No.7 Page No.119 which is the memorandum of family understanding executed on 18.03.1981. This Memorandum of Family Understanding is entered 26 Spl.C.C.82/2004 into between 1) Mruthyunjaya Gurupadaiah Hiremath,
2) Smt.Gowramma, 3) Basayya Mruthyunjaya Hiremath, 4) Mallikarjunaiah Mruthyunjaya Hiremath,
5) S.M.Hiremath and Smt.Basamma @ Rajeshwari Maheswaran (wife of the accused). With regard to the entitlement of the entire income by the wife of the accused derived from the land bearing CTS No.9/2A, CTS 9/2B and CTS No.9/2C, she produced property extract relating to the said survey number and the certified copy of the decree passed in O.S.NO.1/1980 between Smt.Gowramma and Mruthyunjaya as plaintiffs and Basayya Mruthyunjaya Hiremath, 2) Mallikarjuna Mruthyunjaya Hiremath, 3) Shivakumar Mruthyunjaya Hiremath and 4) Basamma wife of Maheshwaran (wife of the accused) relating to the said property vide order dated 23.07.1980. Ex P27 is the report of the Horticulture Department showing the income of the accused. The said income derived from the agriculture to his wife has not been 27 Spl.C.C.82/2004 shown in the annual property returns (APR) by the accused and also not shown in the Income Tax returns. The decree passed in the year 1980, but all the members of the wife of the accused entered into a family understanding agreeing to receive the entire income by the wife of the accused from the agricultural income. The accused has not placed any material before the Court to prove that his wife has received the agricultural income to the extent of Rs.6,42,117/- after passing the decree. If his wife really got the agricultural income, definitely, he could have shown in the APR and also in the I.T returns. Why he has not shown the income received by his wife in the annual property returns and income tax return has not been explained by the accused either in his statement recorded under section 313 of Cr.P.C nor placed satisfactory documentary evidence and the Investigating Officer has rightly not considered the said agricultural income obtained by his wife.
28 Spl.C.C.82/2004
24. Next item claimed by the accused is advance sale consideration amount. On perusal of Schedule VI Page Nos 1 to 20 produced the certified copy of the sale agreement dated 26.09.1983 entered by the accused Sri.M.R.Maheshwaran. Sale agreement discloses that the Mysuru Urban Development Authority, Mysuru executed the said agreement in respect of site No.379 situated at Saraswathipuram, Chamaraja Mohalla, Mysuru for Rs 6,933/-. He produced the certified copy of the sale deed wherein the said site purchased from Mysuru Urban Development Authority for Rs 7,466/- on 13.05.1977. The said document not got marked by the prosecution nor the accused.
25. In volume No.II page Nos 49 to 57m he produced assignment of site numbers by Basaveshwara House Building Co-operative Society Limited dated 20.11.1987 relating to site No.248/1 29 Spl.C.C.82/2004 and 2 measuring 40' x 60 feet. Sale agreement dated 07.11.1996, wherein the wife of the accused entered into an agreement of sale of the site No.1154 and 1150 situated at Srigandhadakaval village, Sunkadakatte, Yeshwanthapura Hobli, Bengaluru North Taluk with N.Narasimhaiah for a sale consideration of Rs 5,75,000/- and received a sum of Rs 2,00,000/- out of the sale consideration amount. In-pursuance of the sale agreement dated 07.11.1996 she has to execute the sale deed relating to the site No.1154 and 1150. The accused has not given plausible explanation with regard to the said sale of sites through sale deed by his wife in the course of recording the statement under section 313 of Cr.P.C nor by adducing his defence evidence. He has not chosen to examine the said Narasimhaiah for having received the sale advance consideration amount of Rs 2 lakhs and executed sale deed in his favour. Therefore, the Investigating Officer has rightly 30 Spl.C.C.82/2004 disallowed the said claim of Rs 2 lakhs towards advance sale consideration.
26. Wife of the accused executed the General Power of Attorney in favour of son of Narasimhaiah by name Sri.Dhananjaya to sell the site No.1154 and 1150 for a sum of Rs 5,75,000/-. But the said Dhananjaya sold the said site for Rs 1,85,000/-. The said sale consideration amount of Rs 1,85,000/- has not been taken into the income of the accused by the Investigating Officer on the ground that the accused has not shown the said sale consideration in the Annual property returns nor in the income tax returns. The Investigating Officer has not chosen to examine the purchase of the site Smt.Bharathi nor Dhananjaya son of Narasimhaiah whether the said sale consideration amount was given to the wife of the accused nor did he keep the amount himself. Narasimhaiah is known to the wife of the accused.
31 Spl.C.C.82/2004 Therefore, she executed General Power of Attorney in favour of his son Dhananjaya for sale of her sites. Accordingly, said Dhananjaya sold the property for Rs 1,85,000/- and naturally he given the sale consideration amount to her. It is not the case of the prosecution that she availed the loan from Dhananjaya nor his father Narasimhaiah and adjusted the sale consideration amount. The said sale consideration has not taken by the Investigating Officer erroneously in the income of the accused. The said sale consideration amount is the income of the accused during the check period and the same has to be taken into account to the income of the accused.
27. The next item of the income claimed by the accused is that loan of Rs 1,50,000/- availed by the accused for construction of house in site No.47 , 3rd main road, Dommaluru, Bengaluru. Prosecution 32 Spl.C.C.82/2004 has admitted that the accused has obtained permission from the Commissioner of police, Bengaluru who sanctioned loan of Rs 1,50,000/-. The said loan availed by the accused has not been taken as income of the accused by the prosecution. The prosecution has contended that the said loan installment along with interest has been deducted in the salary of the accused and therefore, the said loan of Rs 1,50,000/- has not been taken as income of the accused.
28. On perusal of volumn No.VII page Nos 1 to 42, the statement showing the pay particulars of the accused. Ex P16 salary particulars of the accused, the loan availed by the accused is Rs 1,50,000/- is to be shown in the income column of the accused. The Installment of loan with interest, the Investigating Officer has to be taken into account of the expenditure of the accused. The loan availed 33 Spl.C.C.82/2004 by the accused is the income of the accused. The said loan amount of Rs 1,50,000/- has not taken into consideration to the income of the accused erroneously by the Investigating Officer, but admitted that the accused has cleared the loan amount along with the interest. Therefore, the loan availed by the accused for construction of the house to the extent of Rs 1,50,000/- is to be included as income of the accused and then also in the expenditure of the accused.
29. The next item claimed by the accused is the G.P.F Loan availed by the accused for Rs 1,10,000/-. The said loan also has not been taken into consideration to the income of the accused by the prosecution. On perusal of volume No.7 Page Nos 1 to 42 discloses that the particulars of the G.P.F loan installment paid by the accused in his salary. When the accused availed G.P.F loan of Rs 1,10,000/-
34 Spl.C.C.82/2004 is to be considered as income of the accused and to be shown in the income of the accused during the check period. The GPF loan installment has to be shown as expenditure of the column. However, Investigating Officer has erroneously has not taken the said GPF loan of Rs 1,10,000/- in the income and expenditure of the accused during the check period.
30. Investigating Officer has taken rents received by the accused and his wife during the check period of Rs 3,91,600/-. On perusal of volume 7 page 61, the accused has given particulars with regard to the rent received through cheque of Rs 5,10,050/-, but the Investigating Officer has considered only Rs 3,91,600/- and the said income has taken into the income of the accused. The Investigating Officer has not chosen to examine the tenants and the accused nor not stated that the accused has kept the house vacant without leasing to anybody during the check 35 Spl.C.C.82/2004 period. Therefore, the Investigating Officer has to consider the entire rent received by the accused and his wife during the check period of Rs 5,10,050/-. The difference amount of the rent is Rs 1,18,450/-. The said amount has to be taken into the income of the accused and difference of rent received by the accused and his wife during the check period of Rs 1,18,450/- (5,10,050 - 3,91,600 = 1,18,450) are to be included to the income of the accused. As per the prosecution, during the check period, the income of the accused is Rs 13,35,274.57 paise. In the said income, the aforesaid amounts of Rs 1,50,000/- loan availed by the accused for construction of the house, GPF loan of Rs 1,10,000/-, sale consideration of Rs 1,85,000/- and difference of rent of Rs 1,18,450/- are to be included, it comes the income of the accused during the check period is Rs 18,98,724.57 paise. The asset of the accused during the check period is Rs 18,49,893.16 paise.
36 Spl.C.C.82/2004
31. On perusal of the record, as per Ex P7 the accused has constructed the grould floor, first floor and compound in site No.47, Domlur II Stage, Bengaluru-71 and also in site No.79, Avalahalli, BSK III Stage, Bengaluru. The Investigating Officer has considered the only construction of the house in site No.47. The cost of construction of house in site No.47 of Domlur, Bengaluru was Rs 5,77,552.00. But the investigation has not taken into consideration of the cost of the construction of site No.79 situated at Avalahalli, BSK III Stage, Bengaluru for Rs 6,19,494.00. The said cost of the building constructed in site No.79 is to be included in the asset of the accused. Thus, the total asset of the accused comes to Rs.24,69,387.00. Expenditure of the accused during the check period was Rs 11,04,707.49 paise. The repayment of loan amount with interest and recovery of GPF loan amount i.e., Rs 1,50,000/- and Rs 1,10,000/- has to be included in the 37 Spl.C.C.82/2004 expenditure column of the accused and it comes to Rs.13,64,707.49 paise. On perusal of the evidence and the documents placed on record by the prosecution, the following income and assets of the accused during check period arrived at by this Court.
Sl.No. Heads Amount (Rs)
01. Assets during the 24,69,387.00
check period
02. Expenses incurred 13,64,707.49
during check period
03. Income earned 18,98,724.00
04. Assets 5,70,663.00
disproportionate
32. The asset of the accused is more than the income of the accused during the check period and disproportionate asset is Rs 5,70,663.00. The accused has not given plausible explanation to the disproportionate of the asset during the check period. Thus, the accused has amassed wealth by committing criminal misconduct disproportionate to his known source of income to the extent of Rs 5,70,663.00.
38 Spl.C.C.82/2004 Hence the accused is liable for conviction for the alleged offence punishable under section 13(1)(e) read with section 13(2) of The Prevention of Corruption Act, 1988. Hence, I answer point No.1 in the affirmative.
33. Point No 2: In the result, I proceed to pass the following:
ORDER I find the accused M.R.Maheshwaran has committed the offences punishable under Section 13(1)(e) punishable under section 13(2) of Prevention of Corruption Act, 1988. Case is posted to hear regarding sentence.
(Dictated to the Judgment Writer, transcribed and computerized by him, print out signed and then pronounced by me in open Court on this the 19th day of July, 2017) [GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU 39 Spl.C.C.82/2004 ORDER REGARDING SENTENCE Accused is present.
Smt.Nethravathi for Sri C.G.Sundar, learned advocate for the accused and Sri D. Ramesh Babu, the learned Public Prosecutor are present.
Heard with regard to sentence.
Smt.Nethravathi, learned advocate for the accused submits that the accused has already retired from service long back and he is suffering from age old diseases and hence the learned counsel prayed to show lenient view while imposing sentence on him.
The learned Public Prosecutor submits that the prosecution has proved the case against the accused. The accused has amassed wealth disproportionate to his known source of income. Therefore no lenient view be shown to the accused while imposing sentence and prays to impose maximum sentence to the accused.
Having heard the arguments on both sides and perused the evidence on record. This Court has already held that the accused has committed the offence punishable under the Prevention of Corruption 40 Spl.C.C.82/2004 Act, 1988. The accused has amassed wealth disproportionate to his known sources of income and concealed the assets to the Government and committed misconduct during his tenure of service. Taking into consideration of nature and gravity of the offences committed by the accused, he is not entitled for any leniency from this Court. Hence, I proceed to pass the following:
SENTENCE Acting under section 248(2) Cr.P.C, the accused M.R.Maheshwaran is sentenced to undergo simple imprisonment for a period of 1 year (one year ) for the offence punishable under section 13(1)(e) read with 13(2) of the Prevention of Corruption Act and to pay fine of Rs.6,00,000/- (Rupees six lakhs) in default, to undergo Simple imprisonment for 3 (three) months.
41 Spl.C.C.82/2004 Furnish free copy of the Judgment to the accused forthwith.
(Dictated to the Judgment Writer, printout taken, corrected, signed and then pronounced by me in open Court on this the 19th day of June 2017) [GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU ANNEXURE List of witnesses examined on behalf of the prosecution:
PW 1 : S.P.Naik
PW 2 : J.K.Manjunatha
PW 3 : C.M.Sunitha
PW 4 : Selvanatha
PW 5 : Puttaswamy
PW 6 : Sarojini S.Jevergi
PW 7 : P.R.Srinivas
PW 8 : A.Ramesh
PW 9 : Sathish B.V
PW 10 : K.V.Sridhar
42 Spl.C.C.82/2004
PW 11 : P.Narayanappa
PW 12 : Syed Asgar Imam
PW 13 : A.Vasanth Kumar
PW 14 : S.K.Hegde
PW 15 : P.S.Joyappa
PW 16 : A.N.Rajanna
PW 17 : Narayanappa
PW 18 : Puttaswamy
PW 19 : Anilkumar S Deshpande
List of documents marked on behalf of prosecution:
Ex P 1 : Source Report Ex P1(a) : Signature of PW 1 Ex P2 : Mahazar dated 29.01.1999 Ex P2(a) : Signature of PW 2 Ex P2(b) : Signature of PW 15 Ex P3 : Mahazar dated 30.01.1999 Ex P3(a) : Signature of PW 2 Ex P3(b) : Signature of PW 3 Ex P3(c) : Signature of PW 15 Ex P3(d) : Endorsement of accused Ex P4 : Mahazar dated 29.01.1999 Ex P4(a) : Signature of PW 4 Ex P4(b) : Signature of PW 6 Ex P4(c) : Signature of PW 14 43 Spl.C.C.82/2004 Ex P5 : Mahazar dated 02.02.1999 Ex P5(a) : Signature of PW 5 Ex P5(b) : Signature of PW 9 Ex P5(c) : Signature of PW 14 Ex P6 : Mahazar dated 30.01.1999 Ex P6(a) : Signature of PW 7 Ex P6(b) : Signature of PW 10 Ex P6(c) : Signature of PW 13 Ex P7 : Valuation Report dated 31.7.1999 Ex P7(a) : Signature of PW 8 Ex P8 : Mahazar dated 29.01.1999 Ex P8(a) : Signature of PW 10 Ex P8(b) : Signature of PW 13 Ex P9 : Food expenditure report dtd 21.2.2000 Ex P9(a) : Signature of PW 1 Exs P9(b) to (e) : Annexures to Ex P9 Ex P10 : Assets & liabilities for the year ending 31.12.1989 Ex P11 : FSL Certificate Ex P11(a) : Signature of PW 12 Exs P11(b) to (d) : Reasons for opinion (3 sheets) Ex P12 : FIR in Crime No.4/1000 Exs P12(a) 12(b) : Signatures of PW 14 Ex P 13 : Memo dtd 28.1.1999 44 Spl.C.C.82/2004 Ex P 13(a) : Signature of PW 14 Ex P14 : Mahazar dated 05.02.1999 Ex P14(a) : Signature of PW 4 Ex P 15 : Letter of S.P Railways Ex P16 : Salary particulars/Superintendent of Police Railways Ex P17 : Manrath enterprises (gas supply) dtd 17.3.2001 Ex P18 :Baraward extract of AGO dtd 13.3.2001 Ex P 19 : HP Gas connection dtd 4.7.2001 Ex P 20 : Receipt dtd 6.7.1980 Ex P21 : Iskon Letter dtd 1.9.2001 Ex P22 : Horticulture Department letter dtd 3.9.2001 Ex P23 : Siddeshwara Co.op. Bank details Ex P24 : Mahalakshmi Charitable Trust ® dtd 18.9.2001 Ex P 25 : HSBC Bank account details of AGO Ex P26 : Service register extract of the accused Ex P27 : Details of agricultural income Ex P28 : GPF loan details Ex P29 : Xerox copy of sale deed Ex P30 : Mobile bill statement particulars Ex P31 : BSNL Bills of Hiremath 45 Spl.C.C.82/2004 List of material objects marked on behalf of the prosecution:
NIL List of witnesses examined on behalf of accused:
NIL List of documents marked on behalf of accused:
NIL [GOPAL] XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE SPECIAL JUDGE, BENGALURU URBAN DISTRICT, BENGALURU.